Kassel v. The City of Middletown et al
Filing
125
OPINION & ORDER re: 80 MOTION for Summary Judgment filed by Sam Barone, Michael Demchak, Nicholas Barber, The City of Middletown, Lou Morse, Joseph Destafano, Tom Amodio, Don Luis, Paul Smith, 88 FIRST MOTION for Summar y Judgment Notice of Motion filed by Matthew K. Kassel. For the foregoing reasons, Plaintiff's Motion for Summary Judgment is denied, and Defendants' Motion is granted in part and denied in part. Plaintiff's failure to promote claims against Defendants Barone, Barber, and Morse, and Plaintiff's hostile work environment claims against all Defendants are dismissed. The Court will hold a status conference on October 30, 2017 at 11 :30 AM. The Clerk of Court is respectfully directed to terminate the pending Motions. (See Dkt. Nos. 80, 88.) SO ORDERED. (Status Conference set for 10/30/2017 at 11:30 AM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 9/28/2017) (anc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MATTHEW K. KASSEL,
Plaintiff,
v.
THE CITY OF MIDDLETOWN,
JOSEPH DESTEFANO, TOM
AMODIO, SAM BARONE, NICHOLAS
BARBER, LOU MORSE, DON LUIS,
PAUL SMITH, and MICHAEL
DEMCHAK,
No. 14-CV-8922 (KMK)
OPINION & ORDER
Defendants.
Appearances:
Kent A. Eiler, Esq.
Kelly A. Magnuson, Esq.
Michael W. MacOmber, Esq.
Tully Rinckey PLLC
Albany, NY
Counsel for Plaintiff
Alex J. Smith, Esq.
Middletown, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Matthew K. Kassel (“Plaintiff”), a former member of the Middletown Fire
Department (“Fire Department”), brings this Action against the City of Middletown
(“Middletown”), Joseph DeStefano (“DeStefano”), Tom Amodio (“Amodio”), Sam Barone
(“Barone”), Nicholas Barber (“Barber”), Lou Morse (“Morse”), Don Luis (“Luis”), Paul Smith
(“Smith”), and Michael Demchak (“Demchak” and collectively, “Defendants”), alleging (1)
discrimination in violation of the Uniformed Services Employment and Reemployment Rights
Act (“USERRA”), 38 U.S.C. § 4301, et seq., N.Y. Exec. Law § 290, et seq., and N.Y. Mil. Law
§ 242, et seq.; (2) retaliation under 38 U.S.C. § 4311(b) and N.Y. Exec. Law § 290, et seq.; and
(3) hostile work environment resulting in the denial of benefits of employment under 38 U.S.C.
§ 4311(a), N.Y. Mil. Law § 242, et seq., and N.Y. Exec. Law § 290, et seq. Plaintiff and
Defendants have each moved for summary judgment on all of Plaintiff’s causes of action. (See
Dkt Nos. 80, 88.) For the reasons to follow, Plaintiff’s Motion is denied and Defendants’ Motion
is granted in part and denied in part.
I. Background
A. Factual History
The following facts are taken from the documents submitted and the Parties’ respective
statements pursuant to Local Civil Rule 56.1.1 The facts as described below are not in dispute,
except to the extent indicated.
Plaintiff served as a member of the Fire Department and the New York Air National
Guard (the “National Guard”). (See Statement of Material Facts Pursuant to Local Rule 56.1
(“Pl.’s 56.1”) ¶ 17 (Dkt. No. 94); Defs.’ Resp. to Pl.’s Rule 56.1 Statement (“Defs.’ 56.1 Resp.”)
¶ 17 (Dkt. No. 99).) The Fire Department consists of both volunteer and paid firefighters, (see
Plaintiff’s Rule 56.1 Response is lacking in certain critical attributes. For example,
Plaintiff’s response fails to provide support in the record to substantiate many of his own
statements, as required by Rule 56.1(d). See S.D.N.Y. Civ. R. 56.1(d) (“Each statement by the
movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any
statement of material fact, must be followed by citation to evidence which would be admissible,
set forth as required by Fed. R. Civ. P. 56(c).”). Plaintiff sought to rectify this issue in his
September 28, 2016 letter to the Court, where certain citations were provided, and which were
assertedly “omitted due to clerical error.” (Dkt. No. 104.) However, there remain several
uncited statements in Plaintiff’s Response. (See, e.g., Pl.’s Rule 56.1 Response Statement and
Additional Statement of Facts in Supp. of Pl.’s Opp’n to Defs.’ Mot. for Summ. J. ¶¶ 16, 20, 24,
28, 35, 38). “The purpose of Local Rule 56.1 is to streamline the consideration of summary
judgment motions by freeing district courts from the need to hunt through voluminous records
without guidance from the parties.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).
Plaintiff’s response has failed in this regard. Accordingly, where Plaintiff has offered no citation
to admissible evidence in the record, the Court will consider that fact undisputed by Plaintiff.
1
2
Defs.’ Rule 56.1 Statement in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ 56.1”) ¶ 1 (Dkt. No.
81); Pl.’s Rule 56.1 Response Statement and Additional Statement of Facts in Supp. of Pl.’s
Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s 56.1 Resp.”) ¶ 1 (Dkt. No. 98)), and all named
individual defendants are either current or former members of the Fire Department, (see Pl.’s
56.1 ¶¶ 3–10; Defs.’ 56.1 Resp. ¶¶ 3–10). 2
During the relevant time, Plaintiff was a paid firefighter with the Fire Department, (see
Pl.’s 56.1 ¶ 17; Defs.’ 56.1 Resp. ¶ 17), and as such was subject to the requirement set forth by
the State of New York that he complete 100 hours of in-service training within a calendar year,
(see Defs.’ 56.1 ¶ 3; Pl.’s 56.1 Resp. ¶ 3).3 During his tenure, Plaintiff sought to become a
Lieutenant at the Fire Department, (see Pl.’s 56.1 ¶ 20; Defs.’ 56.1 Resp. ¶ 20), which would
Defendants have argued that the “Additional Facts” in Plaintiff’s 56.1 Response should
be disregarded because Defendants were unable to respond. (See Dkt. No. 102.) However, the
Court granted Defendants leave to reply and therefore this argument is moot. (See Dkt. No.
107.) Defendants also have alleged that Plaintiff’s “Additional Facts” attempt to create a
genuine issue of material fact at summary judgment by contradicting his own deposition
testimony on the status of his training by way of a declaration. (See Defs.’ Reply Mem. of Law
in Further Supp. of Mot. for Summ. J. (“Defs.’ Reply”) 2–5 (Dkt. No. 111).) While Defendants
are correct that Plaintiff may not create a fact dispute at summary judgment by contradicting his
own deposition testimony by way of a declaration, see Trans-Orient Marine Corp. v. Star
Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991), that is not the case here. Plaintiff has
testified that he was “on schedule” and that he was not “behind in [his] training for the year
2013, as of September 2013,” (Decl. of Kelly Magnuson, Esq. in Supp. of Pl.’s Mot. for Summ.
J. (“Magnuson Decl.”) Ex. A (“Pl.’s Dep.”) 45–46), which is consistent with his declaration,
(see Decl. of Kelly Magnuson, Esq. in Opp’n to Defs.’ Mot for Summ. J. Ex. A (“Pl.’s Decl.”)
¶¶ 10–15 (Dkt. No. 96)). The declaration does not contradict Plaintiff’s prior testimony, but
rather clarifies and further explains it. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)
(“[A] material issue of fact may be revealed by . . . subsequent sworn testimony that amplifies or
explains, but does not merely contradict, . . . prior testimony.”) (citations omitted). At summary
judgment, “the [C]ourt . . . should not disregard the later testimony because of an earlier account
that was ambiguous, confusing, or simply incomplete.” Langman Fabrics v. Graff
Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998), amended by 169 F.3d 782 (2d Cir. 1998).
2
Plaintiff’s 56.1 statement indicates that he was a volunteer firefighter, but it is
undisputed that he was paid by the Fire Department, (see, e.g., Defs.’ 56.1 ¶ 14; Pl.’s 56.1 Resp.
¶ 14), and that he was subject to the training requirements for paid firefighters, (see Defs.’ 56.1
¶ 3; Pl.’s 56.1 Resp. ¶ 3).
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have put him at the helm of a group of roughly seven paid firefighters, (see Defs.’ 56.1 ¶ 2; Pl.’s
56.1 Resp. ¶ 2). On June 15, 2013, Plaintiff took the Fire Department’s promotion exam to
become a Lieutenant, (see Pl.’s 56.1 ¶ 20; Defs.’ 56.1 Resp. ¶ 20), ultimately receiving the
highest score of any candidate who completed the exam in June 2013, (see Pl.’s 56.1 ¶ 28; Defs.’
56.1 Resp. ¶ 28).4 The Chief of the Fire Department, Amodio, an Assistant Chief, Luis, and the
Mayor of the City of Middletown, DeStefano, then evaluated those candidates who took the
exam. (See Defs.’ 56.1 ¶ 16; Pl.’s 56.1 ¶ 32; Pl.’s 56.1 Resp. ¶ 16.)
In September 2013, not long after Plaintiff completed the Lieutenant’s exam, he met in
the parking lot near Middletown’s Central Fire House with then-Chief of the Fire Department
Amodio. (See Pl.’s 56.1 ¶ 23; see also Decl. of Kelly Magnuson, Esq. in Supp. of Pl.’s Mot. for
Summ. J. (“Magnuson Decl.”) Ex. B (“Amodio Dep.”) 111 (Dkt. No. 95).)5 Plaintiff claims that
the impetus for this meeting was a September 4, 2013 call he received from New York Air
National Guard Senior Master Sergeant John Wilson, the Fire Chief at Stewart Air National
Guard Base (“Base”) in Orange County, New York (“Wilson”), who informed Plaintiff that
Amodio had contacted a commander at the Base to ask why the Base was using Middletown
firefighters to fulfill their manning requirements and avoid paying overtime. (See Pl.’s 56.1
¶ 21.)6 During his meeting with Amodio, Plaintiff presented a PowerPoint, (see Pl.’s 56.1 ¶ 23;
see also Amodio Dep. 111), which according to Plaintiff was about USERRA and his
This exam is a prerequisite for members of the Fire Department who seek to become a
paid Lieutenant. (See Defs.’ 56.1 ¶ 2; Pl.’s 56.1 Resp. ¶ 2.)
4
Defendants dispute this fact in their 56.1 Response, (see Defs.’ 56.1 Resp. ¶ 23), though
their citation to Amodio’s deposition directly corroborates the existence of the meeting and does
not offer an alternate version of events.
5
Defendants dispute the occurrence of any call between Amodio and the unnamed
commander. (See Defs.’ 56.1 Resp. ¶ 22; Amodio Dep. 109.)
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reemployment rights under the law, (see Pl.’s 56.1 ¶¶ 24–25). Plaintiff requested he be permitted
to forward the PowerPoint to Lieutenant David Guattery, a request that Amodio approved. (See
Pl.’s 56.1 ¶ 26; Defs.’ 56.1 ¶ 26.) At the conclusion of this meeting, Amodio indicated that he
was not the “driving force” behind the Fire Department’s attention on military leave, (Pl.’s 56.1
¶ 27; Amodio Dep. 112), and indicated that it was Luis who took exception to Plaintiff’s requests
for additional time off from work at the Fire Department, (see Pl.’s 56.1 ¶ 27; Amodio Dep. 112).
In October 2013, the Fire Department determined that it had two openings for Lieutenant
positions. (See Defs.’ 56.1 ¶ 18; Pl.’s 56.1 Resp. ¶ 18.) On October 28, 2013, Plaintiff received
a text message from Amodio requesting that he report to DeStefano’s office for an interview for
one of the two Lieutenant positions. (See Pl.’s 56.1 ¶ 29; Defs.’ 56.1 Resp. ¶ 29.) When Plaintiff
arrived, he was greeted by DeStefano, Amodio, and Luis. (See Pl.’s 56.1 ¶ 30; Defs.’ 56.1 Resp.
¶ 30.) These three individuals comprised what Defendants term the “Committee,” (Defs. 56.1
¶ 16), and conducted interviews of the top firefighters from the June 2013 promotion list who
were seeking promotion to the rank of Lieutenant, (see id.; Pl.’s 56.1 ¶ 31; Defs.’ 56.1 Resp.
¶ 31).
The Parties present vastly different versions of what took place in the interview itself.
According to Plaintiff, the interview began with DeStefano explaining that candidates would be
graded by all three members of the Committee, and promotions would be awarded based on the
ranking of the candidates’ interview scores. (See Pl.’s 56.1 ¶ 32.) After this introduction,
Plaintiff claims that he provided the Committee with copies of his resume and a letter of
recommendation from Wilson praising Plaintiff’s reliability and supervisory skills. (See Pl.’s
56.1 ¶¶ 33–34; see also Magnuson Decl. Ex. A (“Pl.’s Dep.”) 53.) Plaintiff then proceeded to
answer the Committee’s questions, which, according to Plaintiff, began with a discussion of the
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military and Plaintiff’s obligations therewith. (Pl.’s 56.1 ¶¶ 36–37; see also Pl.’s Dep. 53–56.)
While Plaintiff does not dispute that he first brought up his military service, (see Defs. 56.1 ¶ 29;
Pl.’s 56.1 Resp. ¶ 29), he alleges it was DeStefano who initiated the conversation regarding his
military duties, (see Pl.’s 56.1 ¶¶ 36–37; see also Pl.’s Dep. 55). According to Plaintiff, the
questions DeStefano asked highlighted a departmental concern for Plaintiff’s ability to balance
his dueling obligations to the National Guard and the Fire Department. (See Pl.’s 56.1 ¶ 37.)
These questions covered Plaintiff’s work at the Base, whether he chose to be there on his own
accord, (see Pl.’s Dep. 56), and whether he was paid to be at the Base or if he was purely serving
in a volunteer capacity, (see id.). In response, Plaintiff encouraged the members of the
Committee to call Wilson, which allowed Plaintiff to elaborate upon Wilson’s recommendation
and to discuss the extensive training that Plaintiff received at the Base. (See Pl.’s 56.1 ¶ 38.)
Not surprisingly, Defendants’ version of the interview is different. Rather than DeStefano
inquiring with Plaintiff about his military obligations, Defendants assert that it was Plaintiff who
first brought up his military service and proceeded to use it as an excuse throughout the
interview. (See Defs.’ 56.1 ¶ 22; see also Magnuson Decl. Ex. C (“DeStefano Dep.”) 237–43.)
Specifically, the Committee was concerned that Plaintiff was the farthest behind in his
mandatory training of any firefighter and that he would not successfully complete the 100 hours
required of him in 2013. (See Defs.’ 56.1 ¶ 22; see also Magnuson Decl. Ex. M (“Luis Dep.”)
157.) This was critical, because Plaintiff could lose his certification as a firefighter were he not
to meet this requirement. (See DeStefano Dep. 132.) Defendants were otherwise underwhelmed
by Plaintiff’s interview performance, finding that he had difficulty answering the questions asked
of him and consistently deflected blame for his failure to be on track to reach his training
requirements. (See Defs.’ 56.1 ¶¶ 21–22; see also DeStefano Dep. 237–43.) When prompted to
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explain his training shortfall, Plaintiff “repeatedly brought up the military, blamed the military
for his lack of training,” (DeStefano Dep. 126–27), as he was ordered to be at the Base and was
unable to “pick his [military] schedule,” (id. at 228). In response to the Committee’s concerns
regarding his training shortfall, Plaintiff explained that he did not require additional training with
the Fire Department “because he was getting training at the Stewart Air Force [B]ase.” (Id. at
127.) Still, from Defendants’ perspective, Plaintiff was unable to explain how he could
successfully supervise firefighters and ensure they reached their own training requirements,
while failing to complete his own annual training. (See Defs.’ 56.1 ¶ 20; see also DeStefano
Dep. 149). Ultimately, DeStefano, who is allegedly the ultimate decision maker for the
Lieutenant positions, (see Amodio Dep. 135), believed that Plaintiff’s interview performance
was “horrible,” because Plaintiff was “defensive” and “unable to answer questions regarding his
training and regarding his ability to supervise,” (DeStefano Dep. 113; see also Defs.’ 56.1 ¶ 21).
At the close of Plaintiff’s interview, DeStefano called Wilson to clarify certain statements
made by Plaintiff during the interview. (See DeStefano Dep. 163–65; see also Pl.’s 56.1 ¶ 44.)
This conversation was not related to Wilson’s recommendation of Plaintiff, (see Pl.’s 56.1 ¶ 44;
Defs.’ 56.1 Resp. ¶ 44), but rather to determine if there was a “difference between being ordered
[to the Base] as part of [the] military requirements and getting orders after [one] volunteer[s],”
(DeStefano Dep. 127).7 According to DeStefano, Wilson clarified that when Plaintiff
volunteered for duty, he was technically receiving orders to be at the Base. (See id. at 140–41.)
The general nature of this call is not in dispute, as Defendants do not actually deny that
DeStefano specifically called Wilson to ask about whether Plaintiff was ordered to be at the Base
or if he was volunteering for duty and receiving orders based on volunteering. (See Pl.’s 56.1
¶ 43; DeStefano Dep. 165.)
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In assessing candidates, including Plaintiff, for the Lieutenant positions, the Committee
utilized a score sheet that rated the candidates in 10 separate categories and would add up the
scores across the categories at the completion of each interview. (See Defs.’ 56.1 ¶ 18; Pl.’s 56.1
Resp. ¶ 18.) Plaintiff scored 26.66, while the two other individuals who interviewed for the
position, Fire Inspector Adam McCarey (“McCarey”) and firefighter Joseph Carpenter
(“Carpenter”), each scored 40.33. (See Defs.’ 56.1 ¶ 18; Pl.’s 56.1 Resp. ¶ 18.) The Committee
then discussed the candidates and ranked the three individuals, with Carpenter ranked first, then
McCarey, then Plaintiff. (See Defs.’ 56.1 ¶ 18; Pl.’s 56.1 Resp. ¶ 18.) After Carpenter was
offered the first Lieutenant position, the Committee interviewed Demchak for the second
position pursuant to civil service regulations, and compared his performance to that of McCarey
and Plaintiff. (See Defs.’ 56.1 ¶ 19; Pl.’s 56.1 Resp. ¶ 19.) Demchak received a score of 42, the
highest of the remaining candidates, and was therefore offered the second Lieutenant position.
(See Defs.’ 56.1 ¶ 19; Pl.’s 56.1 Resp. ¶ 19.) Demchak later became Plaintiff’s supervisor in
March 2014. (See Pl.’s 56.1 ¶ 63; Defs.’ 56.1 Resp. ¶ 63.)
It was not until December 4, 2013 that Plaintiff learned the Committee had selected
Carpenter, who had ranked third in the promotional exam, for promotion to one of the two
available Lieutenant positions. (See Pl.’s 56.1 ¶ 48; Defs.’ 56.1 Resp. ¶ 48.) Plaintiff then
approached Smith to discuss this decision on December 19, 2013, wherein Smith told Plaintiff
that, although Plaintiff was “the number one pick, hands down,” (Pl.’s 56.1 ¶ 50; Defs.’ 56.1
Resp. ¶ 50), Carpenter was ultimately promoted instead because Plaintiff failed to show up for
work and “[t]hey couldn’t promote a guy that isn’t here,” (Pl.’s 56.1 ¶ 50; Defs.’ 56.1 Resp.
¶ 50). Smith reiterated this during a conversation with Plaintiff on January 2, 2014, where he
told Plaintiff that he would not be promoted due to his National Guard service and the associated
8
absences. (See Pl.’s 56.1 ¶ 52; Defs.’ 56.1 Resp. ¶ 52.) On January 24, 2014, Plaintiff spoke
with Carpenter, who informed Plaintiff that he had heard from DeStefano that he was selected for
promotion because the Committee believed Carpenter’s time abuse was not as bad as it appeared
to be. (See Pl.’s 56.1 ¶¶ 54–55; Defs.’ 56.1 Resp. ¶¶ 54–55.)
A few days later, on January 30, 2014, Plaintiff learned that Demchak, who had ranked
fourth on the promotional exam, was to be selected for promotion to the second, and only,
remaining Lieutenant position in the Fire Department. (See Pl.’s 56.1 ¶ 56; Defs.’ 56.1 Resp.
¶ 56.) That same day, Plaintiff met with then-First Assistant Chief Morse, who informed him
that his frequent absences caused the Committee to pass him over for the Lieutenant positions.
(See Pl.’s 56.1 ¶¶ 57–58; see also Magnuson Decl. Ex. K (“Morse Dep.”) 105–06.) Several
months later, in May 2014, Morse told Plaintiff that he ought to “be careful” of Luis and Barber,
(see Pl.’s 56.1 ¶ 66; Defs.’ 56.1 Resp. ¶ 66), though Defendants dispute that this was in the
context of Plaintiff’s military service or his invocation of rights under USERRA, (see Defs.’ 56.1
Resp. ¶ 66).
In July 2014, Plaintiff spoke with Barone regarding a newly announced Lieutenant
vacancy at the Fire Department. (See Pl.’s 56.1 ¶ 67; Defs.’ 56.1 Resp. ¶ 67.) In fact, Barone
had requested a new promotional exam for the Lieutenant positions, which would replace the
June 2013 list on which Plaintiff had placed first. (See Pl.’s 56.1 ¶ 68; Defs.’ 56.1 Resp. ¶ 68.)
In October 2014, Barone told Plaintiff that he would be unable to park in his usual parking spot
because a cabinet had been placed in his spot. (See Pl.’s 56.1 ¶ 69; Pl.’s Dep. 83; Magnuson
Decl. Ex. I (“Barone Dep.”) 164–65.) Barone claims his orders were based on Plaintiff’s failure
to follow orders, as Plaintiff had moved the cabinet without permission. (See Barone Dep. 164–
65.)
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Plaintiff filed the instant Action on November 10, 2014. (See Compl. (Dkt. No. 1).) As
part of Plaintiff’s Rule 26 disclosure on February 25, 2015, he provided Defendants with taped
recordings of conversations he had with fellow firefighters and superior officers in the Fire
Department between December 2013 and March 2014. (See Defs.’ 56.1 ¶¶ 35–36; Pl.’s 56.1
Resp. ¶¶ 35–36.) This, however, was not the first time that DeStefano, Barber, and Amodio had
learned of Plaintiff possibly secretly recording conversations with others in the Fire Department.
(See Defs.’ 56.1 ¶ 34; Pl.’s 56.1 Resp. ¶ 34.) On March 3, 2015, Middletown officials and the
firefighters union held a joint meeting to discuss, inter alia, a new employment agreement. (See
Pl.’s 56.1 ¶ 72; Defs.’ 56.1 ¶ 72.) Plaintiff alleges that union representatives, including
Demchak, conveyed to the firefighters present that the secret recordings would lead to adverse
repercussions for union members, (see Pl.’s 56.1 ¶ 73), while Defendants counter, and Plaintiff
admits, that the firefighters merely expressed disappointment over the recordings, (see Defs.’
56.1 ¶ 37; Pl.’s 56.2 Resp. ¶ 37). According to Plaintiff, after the disclosure of the recordings he
became isolated from the rest of the Fire Department, (see Pl.’s 56.1 ¶ 77), and provides as an
example a firefighter canceling plans to swap shifts with him “[d]ue to the current events,” as
well as a general lack of conversation with his colleagues, (Pl.’s 56.1 ¶ 78; Defs.’ 56.1 Resp.
¶ 78; see also Pl.’s Dep. 92).
Ultimately, on April 16, 2015, Plaintiff was informed that he would be suspended without
pay for 30 days because of the recordings. (See Pl.’s 56.1 ¶ 80; Defs.’ 56.1 Resp. ¶ 80; see also
Letter from Kent A. Eiler, Esq. to Court (Apr. 27, 2015) (“Apr. 27 Letter”) 1 (Dkt. No. 26).)
However, this disciplinary charge was ultimately rescinded. (Aff. of Alex Smith, Esq. in Supp.
of Defs.’ Mot. for Summ. J. (“Smith Aff.”) ¶ 80 (Dkt. No. 87).)
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B. Procedural History
Plaintiff initiated this Action by filing a Complaint on November 10, 2014. (See Dkt. No.
1.) On January 28, 2015, Defendants filed their Answer. (See Dkt. No. 6.) The Parties then
entered into a discovery schedule. (See Dkt. No. 15.)
However, on March 17, 2015, less than a month after the start of discovery, Plaintiff filed
an Order To Show Cause pursuant to Federal Rule of Civil Procedure 65(a) and 38 U.S.C.
§ 4323(d)(1)(a), requesting that:
(1) Defendants be restrained and enjoined from harassing and/or making threats to
other members, firefighters, and employees of the Fire Department and that there
would be adverse consequences as a result of the content of the material included
in the Initial Disclosures; (2) Defendants be restrained and enjoined from
punishing other firefighters at Middletown as a result of the content of the
material included in the Initial Disclosures; (3) Defendants be restrained and
enjoined from investigating Plaintiff for a possible adverse personnel action in
connection with the Initial Disclosures; (4) Defendants be restrained and enjoined
from placing Plaintiff on administrative leave and/or suspension and/or
termination of employment during the pendency of the Action; (5) Defendants be
enjoined from additional discrimination, harassment, retaliation, and reprisal
action against Plaintiff; and (6) the City take adequate control of the actions of its
employees and that Defendants be enjoined from engaging in additional
discrimination, harassment, and retaliation against Plaintiff.
(Dkt. No. 20.)
The Court scheduled a hearing on April 17, 2015, (see Dkt. No. 16), which was
rescheduled for May 6, 2015 at the request of Plaintiff’s counsel, (see Dkt. No. 25). Before the
hearing, Plaintiff filed a letter dated April 27, 2015, informing the Court that he had been
unilaterally suspended from the Middletown Fire Department, without pay, effective April 16,
2015. (See Apr. 27 Letter at 1.) Plaintiff attached a letter from Barone, the Chief of the Fire
Department, to Plaintiff that stated that Plaintiff was suspended for the recordings and “as a
result of [his] misconduct [he had] lost the trust and confidence of [his] superior officers and
fellow firefighters.” (Apr. 27 Letter Ex. A 1.) After a two-day oral argument on May 6 and 7,
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2015, the Court granted in part and denied in part Plaintiff’s motion for a preliminary injunction
to the extent that the April 16, 2015 Notice of Discipline directed at Plaintiff and Defendants’
investigation in connection therewith were to be stayed pending further order of the Court and
denied the remainder of Plaintiff’s Order To Show Cause. (See Order (May 14, 2015) (Dkt. No.
32).) On May 20, 2015, Defendants filed an interlocutory appeal of the May 14 Order. (See Dkt.
No. 34.) Subsequently, on May 28, 2015, the Court received an Order To Show Cause for
“reconsideration of or re-argument from th[e] Court’s Order entered May 14, 2014, or, in the
alternative, a stay or modification of said Order pending appeal,” (Dkt. No. 39), as well as
supporting papers, (see Dkt. Nos. 40–44). Defendants subsequently withdrew their motion for
reconsideration, as well as their interlocutory appeal, and the Court consequently denied the
motion as moot on June 26, 2015. (See Dkt. No. 54.)
In the midst of this, Plaintiff filed an Amended Complaint on June 3, 2015. (See Dkt. No.
46.) Defendants filed their Answer to the Amended Complaint on June 19, 2015. (See Dkt. No.
52.) Discovery closed on May 26, 2016. (See Dkt. No. 75.) On June 8, 2016, Plaintiff filed a
premotion letter requesting a premotion conference and leave to file a Motion for Summary
Judgment. (See Dkt. No. 76.) Shortly thereafter, on June 13, 2016, Defendants filed a premotion
letter requesting leave to file a Cross-Motion for Summary Judgment. (See Dkt. No. 77.) On
July 13, 2016, the Court held a premotion conference wherein it set a briefing schedule for the
proposed motions. (See Dkt. (minute entry for July 13, 2016).) Pursuant to the briefing
schedule, (see Dkt. No. 79), the Parties filed their respective Motions for Summary Judgment on
September 1, 2016. (See Dkt. Nos. 80–95.)8 Plaintiff filed his opposition on September 15,
Plaintiff appears to have had technical difficulties in filing his Motion on September 1,
2016, and properly filed his motion on ECF on September 15, 2016. (See Dkt. Nos. 88–95.)
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2016, (see Dkt. Nos. 96–98), while Defendants filed their opposition on September 21, 2016,
(see Dkt. Nos. 99–101). On September 23, 2016 Defendants wrote to the Court seeking leave to
file a reply to Plaintiff’s opposition. (See Dkt. No. 102.) On September 28, 2016, Plaintiff
responded to Defendants’ request, and similarly requested leave to file a reply to Defendants’
opposition. (See Dkt. No. 104.) On September 29, 2016, the Court granted Plaintiff’s request
and set a deadline of October 11, 2016. (See Dkt. No. 105). The Court then clarified on October
6, 2016 that Defendants’ request to file a reply was likewise granted and subject to the same
deadline. (See Dkt. No. 107.) The Parties filed their reply papers on October 11, 2016. (See
Dkt. Nos. 108–12.)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute
exists.” Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2
(S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the
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nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to
the trier of fact on an essential element of the nonmovant’s claim,” in which case “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse
Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal quotation marks omitted).
Further, “[t]o survive a [summary judgment] motion . . . . , [a nonmovant] need[s] to create more
than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward
with specific facts showing that there is a genuine issue for trial,’” Wrobel v. Cty. of Erie, 692
F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986)), and “cannot rely on the mere allegations or denials
contained in the pleadings,” Walker v. City of N.Y., No. 11-CV-2941, 2014 WL 1244778, at *5
(S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord,
554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported
by documents or other evidentiary materials, the party opposing summary judgment may not
merely rest on the allegations or denials of his pleading . . . .”)).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary
judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks
omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., No. M21–88,
2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “to
isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs.
14
Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 323–24 (1986)).
B. Analysis
“The purpose of USERRA is to encourage military service ‘by eliminating or
minimizing the disadvantages to civilian careers’ . . . .” Serricchio v. Wachovia Secs. LLC, 658
F.3d 169, 174 (2d Cir. 2011) (quoting 38 U.S.C. § 4301(a)). In particular, USERRA protects
members of the uniformed services, including those who are military reserves, see Mock v. City
of Rome, 910 F. Supp. 2d 429, 431 (N.D.N.Y. 2012), from discrimination on the basis of their
military service, and provides, in relevant part, that:
[a] person who is a member of, . . . has performed, . . . or has an obligation to
perform service in a uniformed service shall not be denied . . . retention in
employment, promotion, or any benefit of employment by an employer on the
basis of that membership, . . . performance of service, . . . or obligation[.]
38 U.S.C. § 4311(a).
New York State law also protects public sector employees from discrimination on the
basis of their military service. N.Y. Mil. Law § 242. For example, New York Military Law
§ 242(4) provides that no public officer who is ordered on military duty “shall be subjected . . . to
any loss or diminution of . . . vacation or holiday privileges, or any other right or privilege, by
reason of such absence, or be prejudiced, by reason of such absence, with reference to
continuance in office or employment . . . or promotion.” Id. The standard for recovery under
§ 242 parallels USERRA. See Wang v. N.Y.S. Dep’t of Health, 966 N.Y.S.2d 327, 333 (N.Y. Sup.
Ct. 2013) (“Section 242 is substantively and textually similar to USERRA and is intended to
serve the same remedial objective.”).
15
1. Burden-Shifting Framework for USERRA Claims
The Court must first determine whether the Title VII burden-shifting framework of
McDonnell Douglas v. Green, 411 U.S. 792 (1973), or the two-step burden-shifting analysis of
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), should be applied when
determining whether discrimination in violation of USERRA has occurred. See Fink v. City of
New York, 129 F. Supp. 2d 511, 519 (E.D.N.Y. 2001) (noting that “[s]ome courts have applied the
standard Title VII McDonnell Douglas burden-shifting framework to the USERRA context,”
though “a majority” of courts have applied the burden-shifting framework discussed in NLRB v.
Transportation Management Corp.). Courts in the Second Circuit have determined that “the
NLRB framework is the preferable approach for USERRA cases,” id. at 520, following the
precedent set in Gummo v. Village of Depew, 75 F.3d 98 (2d Cir. 1996), see Pfunk v. Cohere
Commc'ns, LLC, 73 F. Supp. 3d 175, 190 (S.D.N.Y. 2014) (“To determine whether an employer
has violated [§ 4311], courts in th[e] [Second] Circuit apply the burden-shifting framework for
actions under the National Labor Relations Act.” (citing Gummo, 75 F.3d at 106)); Mock, 910 F.
Supp. 2d at 432 (“USERRA discrimination claims employ a two-pronged burden-shifting
analysis.”); Woodard v. N.Y. Health and Hosps. Corp., 554 F. Supp. 2d 329, 348 (E.D.N.Y. 2008)
(“The appropriate framework for analyzing USERRA claims is the two-pronged burden-shifting
analysis of NLRB v. Transportation Management Corp.”), aff’d in relevant part, 350 F. App’x
586 (2d Cir. 2009). The Court will therefore follow Second Circuit precedent and analyze
Plaintiff’s USERRA claims under the two-step burden-shifting framework described in NLRB v.
Transportation Management Corp.
Under this framework, the employee first has the burden of showing, by a preponderance
of evidence, that his protected status was “a substantial or motivating factor in the adverse
16
employment action.” Gummo, 75 F.3d at 106 (alteration and internal quotation marks omitted);
see also Woodard, 554 F. Supp. 2d at 348 (same). “Military status is a motivating factor if the
defendant relied on, took into account, considered, or conditioned its decision on that
consideration.” Lapaix v. City of New York, No. 13-CV-7306, 2014 WL 3950905, at *5
(S.D.N.Y. Aug. 12, 2014) (internal quotation marks omitted); see also Mock, 910 F. Supp. 2d at
433 (same). This may be proven via “direct or circumstantial evidence, including an employer’s
expressed hostility towards members protected by the statute together with knowledge of the
employee’s military activity, and disparate treatment of certain employees compared to other
employees with similar records or offenses.” Lapaix, 2014 WL 3950905, at *5 (alteration
omitted). A motivating factor “is not necessarily the sole cause of the action, but rather it is one
of the factors that a truthful employer would list if asked for the reasons for its decision.” Fink,
129 F. Supp. 2d at 520 (internal quotation mark omitted).
When the employee has met this burden, “the employer may nonetheless escape liability
by showing, as an affirmative defense, that it would have made the same decision without regard
to the employee’s protected status.” Woodard, 554 F. Supp. 2d at 349 (internal quotation marks
omitted); see also Pfunk, 73 F. Supp. 3d at 189 (same). “Thus in USERRA actions there must be
an initial showing by the employee that military status was at least a motivating or substantial
factor in the [employer’s] action, upon which the [employer] must prove, by a preponderance of
evidence, that the action would have been taken despite the protected status.” Sheehan v. Dep’t
of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001). Therefore, on each of Plaintiff’s USERRA
claims, the Court must determine whether there is sufficient evidence from which a rational jury
could infer that Plaintiff’s status or conduct as a reservist was a motivating factor in Defendants’
alleged actions, and if so, whether there is sufficient evidence from which a rational jury could
17
infer that Defendants would have acted in the same manner regardless of Plaintiff’s military
status.
2. Failure to Promote Claim as Against Barone, Barber, & Morse
a. USERRA
As an initial matter, Defendants move for summary judgment as to Plaintiff’s failure to
promote claims against Defendants Barone, Barber, and Morse on the basis that these individuals
are not employers under USERRA. (See Defs.’ Mem. in Supp. of Summ. J. (“Defs.’ Mem.”) 17
(Dkt. No. 82).)9 USERRA defines “employer” as:
any person, institution, organization, or other entity that pays salary or wages for
work performed or that has control over employment opportunities, including—
(i) a person, institution, organization, or other entity to whom the employer
has delegated the performance of employment-related responsibilities;
(ii) the Federal Government;
(iii) a State;
(iv) any successor in interest to a person, institution, organization, or other
entity referred to in this subparagraph; and
(v) a person, institution, organization, or other entity that has denied initial
employment in violation of [§] 4311.
38 U.S.C. § 4303(4)(A). The Court notes that it is undisputed that the Committee members
(Amiodo, DeStefano, and Luis) were directly involved in the decision not to promote Plaintiff.
(See Defs.’ 56.1 ¶ 16; Pl.’s 56.1 Resp. ¶ 16.)10 The question then, is whether Barone, Barber, and
Defendants did not move for summary judgment as to these individuals for the
retaliation and hostile work environment claims. Therefore, the Court does not assess
USERRA’s applicability to these individuals as it relates to those claims.
9
Plaintiff has offered no citation to admissible evidence in the record in response to
Defendants’ statement, supported by testimony, that only the members of the Committee were
involved in the promotional decision. (See Defs.’ 56.1 ¶ 16.) Therefore, the Court will consider
that fact undisputed.
10
18
Morse, also can be held responsible for the decision not to promote Plaintiff to the rank of
Lieutenant.11
Here, Plaintiff’s case falters, as he points to no evidence that any of these individuals was
involved in the ultimate decision not to promote Plaintiff to the rank of Lieutenant, or compelled
the members of the Committee to do so. In fact, Plaintiff admits that he has no basis for his
belief that Barone, Barber, or Morse participated in the denial of his promotion beyond the fact
that they are “Chiefs” and that it “seemed like a logical thing to do to consult all the supervisors
when considering an individual for a promotion.” (Pl.’s Dep. 114.) As to Barone and Barber
specifically, Plaintiff asserts that Barber’s opinion “would have been considered,” which,
according to Plaintiff, was that he “didn’t think members of the Reserve or National Guard
should allow their military obligation to interfere with their performance of their primary job,”
(id. at 114–15), while Barone, “refused to promote anyone . . . and left [a Lieutenant position]
vacant for over a year . . . to avoid promoting [Plaintiff] or . . . another national guardsman,” (id.
at 115).
Yet, Plaintiff’s theory regarding Barone, Barber, and Morse is directly controverted by
the undisputed fact that only DeStefano, Amodio, and Luis—as members of the Committee—
were present in the interview, scored and ranked the potential candidates for promotion, and were
the only decisionmakers in that process. (See Defs. 56.1 ¶ 16; Pl.’s 56.1 Resp. ¶ 16.) Plaintiff’s
testimony to the contrary, that non-Committee members were somehow involved in the
promotional decision, is conclusory and wanting of any evidence in the record, and thus “not
Defendants’ motion as to Smith and Demchak is inapplicable, as Plaintiff’s Amended
Complaint specifically omits Smith or Demchak from his failure to promote claims, (see Am.
Compl. ¶¶ 78–79, 87, 109, 127), and nowhere in his submissions does Plaintiff attempt to claim
that either Smith or Demchak had any role in the decision to not promote Plaintiff. Thus, the
Court does not address any claim for failure to promote against Smith or Demchak.
11
19
enough to withstand summary judgment.” Gonzalez v. Beth Israel Med. Ctr., 262 F. Supp. 2d
342, 353 (S.D.N.Y. 2003). Based on the express definitions in the statute, only those individuals
who have authority or input over hiring and firing or promotion can have liability as “employers”
under USERRA. Croft v. Village of Newark, 35 F. Supp. 3d 359, 368 (W.D.N.Y. 2014) (internal
quotation marks omitted); see also Risner v. Ohio Dep’t of Rehab. & Corr., 577 F. Supp. 2d 953,
967 (N.D. Ohio 2008); Brandsasse v. City of Suffolk, 72 F. Supp. 2d 608, 618 (E.D.Va. 1999).
Therefore, Defendants’ Motion for Summary Judgment on this claim is granted to the extent of
the failure to promote claims brought under USERRA against Defendants Barone, Barber, and
Morse.12
b. New York State Human Rights Law
The New York State Human Rights Law (“NYSHRL”) also protects employees from
discrimination “in compensation or in terms, conditions or privileges of employment” “because
of” an individual’s military status. N.Y. Exec. Law § 296(1)(a). However, individual liability is
not limited to supervisors or “employers,” as § 296(6) provides for aiding and abetting liability
for individuals without “supervisory or hiring/firing power.” Torres v. N.Y. Methodist Hosp., No.
15-CV-1264, 2016 WL 3561705, at *12 (E.D.N.Y. Jan. 7, 2016); see also Feingold v. New York,
366 F.3d 138, 157–58 (2d Cir. 2004) (same). The Second Circuit has found that, under § 296(6),
“an individual defendant may be held liable under the aiding and abetting provision of the
In Staub v. Proctor Hosp., 562 U.S. 411 (2011), the Supreme Court found that the
theory of cat’s paw liability was applicable in the USERRA context. Specifically, the Supreme
Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended
by the supervisor to cause an adverse employment action, and if that act is a proximate cause of
the ultimate employment action, then the employer is liable under USERRA.” Id. at 422
(emphasis and footnotes omitted). Here, however, the lack of any evidence that Defendants
Barone, Barber, or Morse played any role, or had any input, in the promotional decision
precludes the possibility of any potential cat’s paw liability for Barone, Barber, and Morse.
12
20
NYSHRL if he ‘actually participates in the conduct giving rise to a discrimination claim.’”
Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011) (quoting
Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)).
Plaintiff’s NYSHRL claim meets the same fate as his USERRA claim, as Plaintiff has
failed to put forth any evidence that Barone, Barber, or Morse had any input or participation in
the decision to not promote him. Again, while Plaintiff has posited that these three individuals
played some role in the promotional determination, (see Pl.’s Dep. 114–116), he has not provided
a single specific example of how Barone, Barber, or Morse participated in the process in any
manner. Plaintiff’s claim is ultimately premised upon his “opinion that regardless of whether the
Chiefs attended or didn’t attend the interview for promotion that they would at least have an
opportunity to weigh in with their opinion.” (Id. at 114.) Yet, this opinion is both belied by the
record, (see Defs.’ 56.1 ¶ 16; Pl.’s 56.1 Resp. ¶ 16), and unsupported by Plaintiff’s own
testimony, as he admits that no one ever “t[old] [him] that was the process that was followed,”
(Pl.’s Dep. 114). Therefore, Defendants’ Motion for Summary Judgment is granted as to the
failure to promote claims brought under the NYSHRL against Defendants Barone, Barber, and
Morse.
3. Failure to Promote Claims as to Middletown, DeStefano, Amodio, & Luis
a. USERRA & New York Military Law Claim
Applying the aforementioned two-pronged burden-shifting approach of NLRB v.
Transportation Management Corp., the Court concludes that a reasonable jury could find that
Plaintiff has met this initial burden, because he has provided sufficient evidence to suggest that
his employer improperly considered his military service during the promotional process, and that
this led to the failure to promote Plaintiff to the rank of Lieutenant. Prior to his interview,
21
Plaintiff spoke to Amodio, informing him of his rights under USERRA. (See Pl.’s 56.1 ¶¶ 23–
24.) Further, Amodio testified that he informed Plaintiff at this meeting that he was not the
“driving force” behind any of the focus on Plaintiff’s military leave, (Amodio Dep. 112), from
which a reasonable jury could infer that Plaintiff’s military status was indeed a substantial
element in the evaluation process. Following this conversation, Plaintiff then received an
interview for a Lieutenant position. Yet, despite the fact that Plaintiff had the top score on the
Lieutenant exam, (see Pl.’s 56.1 ¶ 28; Defs.’ 56.1 Resp. ¶ 28), two other individuals who ranked
third and fourth were ultimately promoted instead of Plaintiff, (see Pl.’s 56.1 ¶¶ 48, 56). At the
interview itself, Plaintiff’s military obligations appeared to be one of the central points of
discussion. For example, Plaintiff was asked at least once about his military obligations,
specifically regarding whether he could “balance his obligations to the New York Air National
Guard and the Middletown Fire Department.” (Pl.’s 56.1 ¶ 37; see also DeStefano Dep. 240
(confirming that Plaintiff was asked what he could do to “minimize the impact” of his military
obligations on his firefighter duties).) Indeed, DeStefano’s notes indicate that Plaintiff
“[b]ecame more defensive about the military questions” and Plaintiff asked whether it would
“hold him back” in the promotion process. (DeStefano Dep. 241.) Luis also admitted that “he . .
. asked [Plaintiff] a question about his military service,” and “the way [Plaintiff] presented his
answer, [Luis] felt that the military was the priority over the fire department.” (Luis Dep. 156.)
DeStefano’s behavior after the interview further supports Plaintiff’s claim of USERRA
liability. After the interview ended, DeStefano contacted Wilson, not to verify any details of his
reference, but rather to ask whether there was a “difference between being ordered [to the Base]
as part of [one’s] military requirements and getting orders after [one] volunteer[ed].” (DeStefano
Dep. 127). During his deposition, DeStefano admitted that he believed there was a distinction
22
between “being ordered [to the Base] and offering, volunteering, and then getting orders.” (Id. at
165.) However, whether Plaintiff was “volunteering for duty” at the Base or being ordered to
appear is a distinction without a difference. The fact that Plaintiff volunteered for, or voluntarily
accepted military orders, is of no import in finding liability under USERRA, because, “whether
or not [Plaintiff’s] orders were voluntary, firing a reservist because he or she receives military
orders violates the plain language of [§] 4311.” Pfunk, 73 F. Supp. 3d at 190. Thus, a reasonable
jury could find that Plaintiff’s military service was a motivating factor for the decision not to
promote Plaintiff, and thus find Defendants liable for USERRA violations. See Croft, 35 F.
Supp. 3d at 372 (holding that comments by a chief that the plaintiff was not promoted because he
“wasn’t around enough,” and that “the only place [the plaintiff] had been was military duty,” was
evidence that the defendant was “resistant to promoting [the] [p]laintiff, at least in part, because
of [the] [p]laintiff’s military obligations” (alterations and internal quotation marks omitted));
Mock, 910 F. Supp. 2d at 434 (finding that the defendant’s statements that the plaintiff was
“always out playing war games” to be “evidence which suggest[ed] [the plaintiff’s] military
status was a motivating factor, as [was] the fact that [the plaintiff] was passed over multiple
times for promotions despite his high scores on promotional exams.” (internal quotation marks
omitted)); Fink, 129 F. Supp. 2d at 520 (noting that “[m]ilitary status is a motivating factor if the
defendant relied on, took into account, considered, or conditioned its decision on that
consideration” (internal quotation marks omitted)).
Although Plaintiff has met his prima facie burden of proof, Defendants “may nonetheless
escape liability by showing, as an affirmative defense, that [they] would have made the same
decision without regard to [Plaintiff’s] protected status.” Fink, 129 F. Supp. 2d at 520. To
support this defense, Defendants claim that Plaintiff would not have been promoted to Lieutenant
23
regardless of his military status, as he failed to meet specific qualifications that were essential to
the position. (Defs.’ Mem. 4–8.) A reasonable jury could choose to credit Defendants’
explanation that Plaintiff was not promoted, not because of his military obligation, but because
Plaintiff (1) was behind on his mandatory training; (2) fared poorly in his interview, in part by
being defensive and angry; or (3) did not have the requisite leadership qualities to be a
Lieutenant. (See id.)
Defendants primarily rest their promotion decision on Plaintiff’s failure to meet the
required 100-hour training requirement and his explanation for this shortfall. Said otherwise, a
reasonable jury could find that Defendants would have made the same decision to not promote
Plaintiff even if he had not had a military obligation, based solely on the fact that Plaintiff is
alleged to have been the furthest behind of all candidates in his training requirements. It is
undisputed that firefighters have a state-mandated 100-hour in-service training requirement,
(Defs.’ 56.1 ¶ 3; Pl.’s 56.1 Resp. ¶ 3), and that Lieutenants are in charge of verifying compliance
with that requirement as to all firefighters beneath them, (see Luis Dep. 58–59; Magnuson Decl.
Ex. D 39-40.) Plaintiff’s failure to meet his training requirements in a timely fashion was not
uncommon, per Luis, who testified that “[h]e lapsed up to the time that he was told, you had X
amount of time to fulfill your X amount of required responsibilities.” (Luis Dep. 179.) It was
noteworthy to Luis that Plaintiff was serially behind in his training, and that Plaintiff, at the time
of the interview, was alleged to be the farthest behind in his training. (See id.)
Further, DeStefano testified that Plaintiff’s military service was not itself the issue; rather
it was that Plaintiff was unequipped to train other firefighters—a core duty of the Lieutenant
position—given that he “was not in a position to meet [his] training requirements.” (DeStefano
Dep. 232.) Amodio corroborated this, stating that there was a concern regarding Plaintiff’s
24
absences, not due to his military obligations, but rather because he would not “be able to catch
up to do his 100 hours” of training. (Amodio Dep. 76.) Taken together, this evidence might
support Defendants’ affirmative defense that Plaintiff was not promoted for bona fide reasons
having nothing to do with his military service.
However, the issue of Plaintiff’s training is the subject of a genuine dispute. Plaintiff
argues, and Defendants do not dispute, that he never in fact failed to complete his training
requirements during, or prior to, the year in question. (Pl.’s Mem. of Law in Opp’n to Defs.’
Mot. for Summ. J. (“Pl.’s Opp’n”) 5 (Dkt. No. 97); see also Luis Dep. 179 (testifying that
“[Plaintiff] always got [his training] done” and that there was “never a year that [Plaintiff] didn’t
meet the [training] requirement”.) Indeed, Plaintiff testified that he was “on schedule” regarding
his training and that he was not “behind in [his] training for the year 2013, as of September
2013.” (Pl.’s Dep. 45–46.) Moreover, Plaintiff was “surprised” to hear from Luis that he was
allegedly far behind on his training, as the interview was the first time he was told of this. (see
id. at 49).13 By contrast, while Defendants do not dispute that Plaintiff ultimately completed his
training, Defendants present declarations of Smith and Luis stating that Plaintiff was anywhere
between 25 and 30 hours behind, which was significantly more than other firefighters. (See
Reply Aff. of Paul Smith ¶¶ 4–5 (Dkt. No. 109); Reply Aff. of Don Luis ¶¶ 3–5 (Dkt. No. 110).)
However, it is not the role of the Court at summary judgment to resolve this factual clash.
Rather, this is a paradigmatic case of “he said, she said,” or more accurately “he said, they said.”
See Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010) (explaining
that a “question of ‘he said, she said,’” in the discrimination context, is one on which the court
In support of this contention, Plaintiff submitted a declaration stating that he was only
three to four hours behind at the time of his interview and that he ultimately caught up well
before the deadline. (Pl.’s Decl. ¶¶ 10–11.)
13
25
cannot “take a side at the summary judgment stage”); Santiago v. City of Yonkers, No. 13-CV1077, 2015 WL 6914799, at *2 (S.D.N.Y. Oct. 30, 2015) (“Where each party tells a story that is
at least plausible and would allow a jury to find in its favor, it is for the jury to make the
credibility determinations and apportion liability, and not for the court.”) Accordingly, the
Parties’ cross-Motions for Summary Judgment as to the failure to promote claims under
USERRA and New York Military Law § 242 are denied.
b. New York State Human Rights Law
As previously discussed, Plaintiff also brings his failure to promote claim pursuant to
New York Executive Law § 290. Contrary to the two-pronged approach in USERRA cases, the
Second Circuit analyzes claims pursuant to NYSHRL under the familiar three-part framework
set forth by the Supreme Court in McDonnell Douglas. See McDuffie v. Eli Lilly & Co., No. 04CV-5995, 2009 WL 857069, at *5 (S.D.N.Y. Mar. 31, 2009) (“Claims pursuant to the NYSHRL
are analyzed under the three-part burden shifting test established in McDonnell Douglas.”)
Under McDonnell Douglas, a plaintiff bears the initial burden of proving by a
preponderance of the evidence a prima facie case of discrimination; it is then
defendant’s burden to proffer a legitimate non-discriminatory reason for its
actions; the final and ultimate burden is on the plaintiff to establish that the
defendant’s reason is in fact pretext for unlawful discrimination.
Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014). “The employee at all times
bears the burden of persuasion to show a retaliatory motive.” Cox v. Onondaga Cty. Sheriff’s
Dep’t, 760 F.3d 139, 145 (2d Cir. 2014).
Substantively, the first two steps of the USERRA framework applying the NLRB v.,
Transportation Management Corp. framework are no different from the first two steps of the
McDonnell Douglas framework. See Fink, 129 F. Supp. 2d at 519 (“The difference is solely that
the McDonnell Douglas framework has three steps . . . shifting the burden back to the plaintiff to
26
show that the defendant’s alleged non-discriminatory reason is a pretext for discrimination.”).
As such, upon revisiting the analysis in the USERRA context, both Plaintiff and Defendants have
satisfied their initial burdens under the McDonnell Douglas framework.
Now, under the NYSHRL, Plaintiff must show “that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.” Roge v. NYP
Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) (internal quotation marks omitted). “The
plaintiff may do this by presenting additional evidence, or by relying on the evidence that
supported the plaintiff’s prima facie case.” Villanti v. Cold Spring Harbor Cent. Sch. Dist., 733
F. Supp. 2d 371, 384 (E.D.N.Y. 2010). “If the plaintiff cannot prove the presence of such a
pretext by a preponderance of the evidence, then summary judgment is appropriate.” E.E.O.C. v.
Bloomberg L.P., 967 F. Supp. 2d 816, 833 (S.D.N.Y. 2013).
Plaintiff’s failure to promote claim under the NYSHRL also survives because there is a
dispute as to whether Defendants’ “training” rationale is pretextual. As an initial matter,
Defendants’ own testimony contradicts their position that Plaintiff’s training shortfall was the
ultimate reason he was not promoted. For example, as previously discussed, Amodio testified
that he informed Plaintiff he was not the “driving force” behind any of the focus on Plaintiff’s
military leave. (Amodio Dep. 112.) Furthermore, DeStefano testified that he noted in the
interview that Plaintiff “[b]ecame more defensive about the military questions,” (DeStefano Dep.
240), allowing for a reasonable inference that DeStefano was concerned with Plaintiff’s military
obligations, despite the fact DeStefano also testified that “the whole issue was he was not
meeting his training guidelines,” (id. 345). Lastly, Luis admitted “he . . . asked [Plaintiff] a
question about his military service, and that at the time the way [Plaintiff] presented his answer,
[Luis] felt that the military was the priority over the fire department.” (Luis Dep. 156.)
27
However, Luis then testified that it was merely Plaintiff’s “absence” and lack of training that
bothered him. (Id. at 157.) This testimony contradicts itself, as well as the underlying rationale
offered by Defendants, which could allow a reasonable jury to determine that Defendants’ stated
reasons are pretext. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (“A
plaintiff may prove [pretext] by demonstrating weaknesses, implausibilities, inconsistencies, or
contradictions in the employer's proffered legitimate . . . reasons for its action.”); Martin v. State
Univ. of N.Y., 704 F. Supp. 2d 202, 231 (E.D.N.Y. 2010) (“This contradictory testimony . . .
could lead a reasonable jury to conclude that [the defendant’s] stated reasons were a pretext.”).
Plaintiff further notes that, despite the fact that he had the top score on the Lieutenant
exam, (see Pl.’s 56.1 ¶ 28; Defs.’ 56.1 Resp. ¶ 28), two similarly situated individuals who ranked
third and fourth were promoted instead, (see Pl.’s 56.1 ¶¶ 48, 56).14 Regardless of this
discrepancy, Plaintiff consistently testified that he was “on schedule” regarding his training and
that he was not “behind in [his] training for the year 2013, as of September 2013,” (Pl.’s Dep. 4546), and was only three to four hours behind at the time of his interview, (see Pl.’s Decl. ¶¶ 10–
11). Moreover, Plaintiff testified that he was not merely “surprised” to hear that he was the
furthest behind on his training, (Pl.’s Dep. 49), but that he was first told this in the interview
itself, a mere month prior to the deadline set by the Fire Department, (see Pl.’s Decl. ¶¶ 13, 15).
The Court has acknowledged that Defendants dispute this point, (see Reply Aff. of Paul Smith
¶¶ 4–5; Reply Aff. of Don Luis ¶¶ 3–5), but again, it is not the role of the Court at summary
judgment to resolve this factual dispute. Accordingly, the Parties’ cross-Motions for Summary
Judgment as to the failure to promote claim under the NYSHRL are denied.
Additionally, at least one of these individuals apparently also had training shortfalls, as
DeStefano testified that Carpenter “had [a] problem with missing training.” (DeStefano Dep.
197.)
14
28
4. Retaliation
a. USERRA
Plaintiff also claims that Defendants retaliated against him, in violation of 38 U.S.C.
§ 4311(b), once Plaintiff asserted his rights under USERRA. “[T]o make out a prima facie case
of retaliation under USERRA, a plaintiff must show that (1) he was engaged in protected
activity; (2) that the employer was aware of that activity; (3) that the plaintiff suffered an adverse
employment action; and (4) that there was a causal connection between the protected activity and
the adverse action.” Lapaix, 2014 WL 3950905, at *6 (internal quotation marks omitted). A
“materially adverse” employment action includes acts “such as termination, demotion
accompanied by a loss of pay, or a material loss of benefits or responsibilities that significantly
alters the terms or conditions of his employment.” Croft, 35 F. Supp. 3d at 370 (alterations and
internal quotation marks omitted); see also Hunt v. Klein, No. 10-CV-2778, 2011 WL 651876, at
*5 (S.D.N.Y. Feb. 10, 2011) (same), aff’d, 476 F. App’x 889 (2d Cir. 2012). A plaintiff may
demonstrate a causal connection under the fourth element “(a) indirectly by showing that the
protected activity was followed closely by discriminatory treatment; (b) indirectly though other
evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (c)
directly through evidence of retaliatory animus.” LaSalle v. City of New York, No. 13-CV-5109,
2015 WL 1442376, at *6 (S.D.N.Y. Mar. 30, 2015) (applying Title VII and 42 U.S.C. § 1981)
(internal quotation marks omitted). As with his failure to promote claims, Plaintiff must make
“an initial showing by the employee that military status was at least a motivating or substantial
factor in the [employer’s] action, upon which the [employer] must prove, by a preponderance of
evidence, that the action would have been taken despite the protected status.” Sheehan, 240 F.3d
at 1014.
29
Plaintiff’s retaliation claim partially rests upon Defendants’ failure to promote him.
There is no disputed issue of fact as to either prongs one and two of Plaintiff’s prima facie case.
Plaintiff alleges that he informed Amodio of his protections under USERRA, specifically his
reemployment rights, on September 6, 2013. (See Pl.’s Dep. 16; Magnuson Decl. Ex. O at 2, 4,
10.) This was, according to Plaintiff, a response to questions from Amodio regarding the nature
of his military duties and whether it would be interfering with his Fire Department obligations.
(See Pl.’s Dep. at 15–16.) Amodio does not offer a disputed version of events, as he admits the
meeting took place and admits that Plaintiff showed him a PowerPoint at this meeting (though he
does not specify the subject matter of that PowerPoint). (See Amodio Dep. 111–125.) USERRA
anticipates that individuals may take alternate steps or “actions” to seek enforcement of
USERRA prior to filing a formal complaint with the secretary of labor or filing a civil action.
See Gagnon v. Sprint Corp., 284 F.3d 839, 854–55 (8th Cir. 2002) (finding an informal
discussion with fellow employees was enough to serve as the basis of a protected activity for a
charge of retaliation).
Plaintiff can establish an indirect causal connection based on the contemporaneous nature
of the invocation of his rights and the decision to not promote him. See LaSalle, 2015 WL
1442376, at *6. The interview took place less than two months after the discussion with
Amodio, an amount of time that the Second Circuit has found to be sufficient for the purpose of
establishing temporal proximity. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 180 (2d
Cir. 2005) (finding two months to be sufficiently temporally proximate); accord Garrett v.
Garden City Hotel, Inc., No. 05-CV-962, 2007 WL 1174891, at *21 (E.D.N.Y. Apr. 19, 2007)
(“A period of only two months between a protected activity and an adverse action may permit a
30
reasonable jury to find the acts to be temporally proximate and causally related.” (alteration and
internal quotation marks omitted)).
Even so, as discussed above, there is a genuine dispute as to the reasons that Plaintiff was
not promoted to the rank of Lieutenant, as Defendants have offered myriad reasons that purport
to explain the rationale for their decision to not promote Plaintiff that are unrelated to the
invocation of his USERRA rights in September 2013. (See supra.) This dispute precludes
summary judgment on Plaintiff’s retaliation claim in so far as it is rooted in the failure to
promote.
Plaintiff’s retaliation claim further relies upon Defendants’ decision to suspend Plaintiff
in April 2015 in response to the filing of this Action. Plaintiff easily satisfies the first three
prongs of his retaliation claim: Plaintiff commenced the instant Action against Defendants on
November 10, 2014, (see Compl.), which was expressly done to enforce his rights under
USERRA and New York law; Defendants, as parties to the suit, were aware of this activity; and
Plaintiff suffered the adverse employment action of being suspended, without pay, from his
position at the Fire Department. Besides his own “[i]mpression” that this was retaliatory, (Pl.’s
Dep. 124), Plaintiff relies upon the discrepancy in prior punishment to show causation, as he had
been discovered secretly recording a conversation with Barber in April 2014, (see Magnuson
Decl. Ex. L (“Barber Dep.”) 59–62). At that time, prior to the filing of Plaintiff’s suit, it was not
recommended that Plaintiff be disciplined for the secret recordings. (Barber Dep. 61.) Yet, in
2015, once the suit had been filed, Plaintiff was subject to suspension without pay for nearly
identical recordings. (Apr. 27 Letter Ex. A.) This discrepancy in punishment, coupled with the
temporal proximity between Plaintiff’s suit and the suspension, see Summa v. Hofstra Univ., 708
31
F.3d 115, 128 (2d Cir. 2013) (“This Court has recently held that even gaps of four months can
support a finding of causation.”), is sufficient to meet Plaintiff’s prima facie burden.
In response, Defendants assert that the suspension was not a reaction to Plaintiff’s
lawsuit, but rather a direct result of “[Plaintiff’s] surreptitious recordings of his superiors and
fellow firefighters[, which] was a serious breach of the trust and loyalty essential to the operation
of the [Fire Department].” (Defs.’ Mem. 22.) A reasonable jury could credit this version of
events, as Barone testified that the firefighters “were very concerned about their safety and
whether they could trust [Plaintiff] in an emergency position in the future.” (DeStefano Dep.
326.) This fear appeared to permeate the Fire Department, as Lieutenants Smith and Carpenter
both sent emails to Barone in April 2015 highlighting that they could no longer trust Plaintiff and
felt betrayed by his actions. (See Magnuson Decl. Ex. P.) This disintegration of trust among
Plaintiff’s fellow firefighters could be important in the context of a fire department, where “trust
between superiors and their subordinates, as well as an officer’s reputation amongst fellow
officers, is of the utmost importance.” Cruz v. Liberatore, 582 F. Supp. 2d 508, 519 (S.D.N.Y.
2008); see also Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987)
(noting that a fire department has a legitimate interest in maintaining “esprit de corps” among
members of the volunteer fire department (internal quotation marks omitted)); Janusaitis v.
Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 26 (2d Cir. 1979) (same).
Defendants appear, however, to concede that there is indeed a genuine dispute as to
whether a rationale jury would accept that argument. Specifically, Plaintiff surreptitiously
recorded conversations in the firehouse in April 2014, was caught by Barber, who informed his
superiors, but did not recommend any punishment for that conduct. (See DeStefano 287–89,
326–27; Barber Dep. 59–62.) Several months later, and after this case was filed, additional
32
recordings came to light and Plaintiff was subsequently suspended. Once the individuals
involved in the April 2014 recording realized this discrepancy in punishment, they admitted to
withdrawing the suspension only because it would be “too difficult for the City to defend itself
against a retaliation claim.” (Smith Aff. ¶ 80.) A reasonable jury could determine that in March
2015, Plaintiff’s second set of recordings were either a step too far for the Fire Department, or
that the Fire Department had developed a retaliatory motive. At this stage, it is not for the Court
to make that credibility judgment on disputed facts. Accordingly, the Parties’ Motions are
denied.
b. New York State Human Rights Law
As noted, Plaintiff also brings retaliation claims under the NYSHRL, which is to be
analyzed under McDonnell Douglas burden-shifting framework, see Zann Kwan, 737 F.3d at 843
(“Federal and state law retaliation claims are reviewed under the burden-shifting approach of
McDonnell Douglas.”), though the analysis as to Plaintiff’s prima facie case and Defendant’s
non-discriminatory reasons for Defendants’ actions in both failing to promote and suspending
Plaintiff are identical, see Lapaix, 2014 WL 3950905, at *8. Therefore, both Plaintiff and
Defendants have satisfied their initial burdens under the McDonnell Douglas framework, and
Plaintiff is now required to rebut Defendants’ burden of production by making a showing that
Defendant’s non-discriminatory defenses are pretext. See Abrams, 764 F.3d at 251.
To show pretext in the context of a retaliation claim under both the NYSHRL and Title
VII, “a plaintiff . . . must show that retaliation was a ‘but-for’ cause of the adverse action, and not
simply a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Zann Kwan, 737 F.3d at
845 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526, 2533 (2013)). This
showing of “but-for” causation, however, “does not require proof that retaliation was the only
33
cause of the employer’s action, but only that the adverse action would not have occurred in the
absence of the retaliatory motive.” Id. at 846. “A plaintiff may prove that retaliation was a butfor cause of an adverse employment action by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons
for its action[,] [as] [f]rom such discrepancies, a reasonable juror could conclude that the
explanations were a pretext for a prohibited reason.” Id. In this context, the Court notes that the
Second Circuit has cautioned that “[t]he determination of whether retaliation was a ‘but-for’
cause . . . is particularly poorly suited to disposition by summary judgment, because it requires
weighing of the disputed facts, rather than a determination that there is no genuine dispute as to
any material fact.” Id. at 846 n.5.
Here, Plaintiff’s retaliation claim survives because there is a genuine dispute as to
whether his suspension was pretextual. Plaintiff asserts that his suit to vindicate his rights under
USERRA and the NYSHRL was a clear motivating factor for Defendants’ actions. As discussed,
Plaintiff had been discovered secretly recording a conversation with Barber in April 2014. (See
Barber Dep 59–62.) Barber promptly informed DeStefano and Amodio, making them aware that
Plaintiff had surreptitiously recorded conversations in the firehouse. (See DeStefano 287–289,
326–27; Barber Dep. 59–62.) However, Barber testified that he did not recommend Plaintiff for
discipline when he informed DeStefano and Amodio about the secret recordings, (see Barber
Dep. 61), nor was Plaintiff ever punished or admonished for these actions, (see DeStefano 287–
289, 326–27). Defendants acknowledge that the optics of punishing Plaintiff only after he filed
his suit was not ideal, as they admit to only withdrawing the suspension because it would be “too
difficult for the City to defend itself against a retaliation claim.” (Smith Aff. ¶ 80.) This
admitted discrepancy in punishment between the initial recording incident and the subsequent
34
2015 incident, coupled with the temporal proximity between Plaintiff’s suit and the suspension,
is sufficient to thwart summary judgment. See Zann Kwan, 737 F.3d at 847 (holding that a
discrepancy in punishment or explanation, “coupled with the temporal proximity between the
complaint and the termination” supports a finding that a reasonable jury may find the complaint
to be a but-for cause of the retaliatory conduct); Dillon v. Ned Mgmt., Inc., 85 F. Supp. 3d 639,
665 (E.D.N.Y. 2015) (holding that the plaintiff had satisfied her burden with respect to pretext
because, among other things, the defendants “fail[ed] to present credible evidence that [the
plaintiff] had been informed before her date of termination that lateness was a problem” and the
evidence “primarily consist[ed] of contradictory deposition testimony,” which made summary
judgment inappropriate). Therefore, the Parties’ cross-Motions for Summary Judgment for
retaliation under both USERRA and the NYSHRL are denied.
5. Hostile Work Environment
As noted previously, USERRA protects service members from denial of “any benefit of
employment” by an employer because of their service. 38 U.S.C. § 4311(a). However, there has
been considerable debate as to whether the statute allows for a claim of a hostile work
environment. Specifically, prior to November 21, 2011, USERRA defined “benefit of
employment” as “any advantage, profit, privilege, gain, status, account, or interest (including
wages or salary for work performed) that accrues by reason of an employment contract or
agreement or an employer policy, plan, or practice . . . .” Carder v. Cont’l Airlines, Inc., 636 F.3d
172, 175 (5th Cir. 2011). Upon examining this language, the Fifth Circuit in Carder held that,
because USERRA omitted the phrase “terms, conditions, or privileges of employment,” there
was no cause of action for hostile work environment under the statute. Id. at 178 (“Congress’s
choice to not include the phrase ‘terms, conditions, or privileges of employment’ or similar
35
wording in USERRA weighs in favor of the conclusion that USERRA was not intended to
provide for a hostile work environment claim to the same extent as Title VII and other antidiscrimination statutes containing that phrase.”).
Shortly thereafter, Congress amended the definition of “benefit of employment” to
include the “terms, conditions, or privileges of employment.” Pub. L. No. 112–56, tit. II, § 251,
125 Stat. 711, 729 (codified as amended at 38 U.S.C. § 4303(2)). Following this amendment,
some courts have determined that hostile work environment claims are actionable under
USERRA, see, e.g., McDaniel v. Loyola Univ. Med. Ctr., No. 13–CV–6500, 2014 WL 4269126,
at *7 (N.D. Ill. Aug. 28, 2014) (“In light of the amendment addressing the Fifth Circuit’s precise
concern, it seems clear that the Fifth Circuit now would find a hostile work environment claim
cognizable under USERRA.”), while other courts have held that such claims were always
actionable, see, e.g., Tridico v. District of Columbia, 130 F. Supp. 3d 17, 31 (D.D.C. 2015)
(“USERRA provides for a hostile work environment claim.” (internal quotation marks omitted));
Montoya v. Orange Cty. Sheriff's Dep’t, 987 F. Supp. 2d 981, 1013 (C.D.Cal. 2013) (“[T]he Court
defers to Congress’s opinion that the 2011 Amendment was intended to clarify, not change the
scope of USERRA, and thus hostile work environment claims have always been cognizable
under USERRA.”).
The courts’ uncertainty in this arena has resulted in “very little case law examining a
hostile work environment claim in the context of USERRA,” and thus courts have
“incorporate[d] the standards and case law used to evaluate hostile work environment claims
under Title VII.” Montoya, 987 F. Supp. 2d at 1016 (collecting cases).15 To establish a hostile
Claims under the NYSHRL are analyzed identically to claims under Title VII. See
Massie v. Metro. Museum of Art, No. 11–CV–9549, 2015 WL 3833839, at *6 (S.D.N.Y. June 22,
2015) (holding that Title VII, the NYSHRL, and § 1981 hostile work environment claims are
15
36
work environment claim, Plaintiff must produce evidence that “the workplace was permeated
with discriminatory intimidation, ridicule, and insult, that was sufficiently severe or pervasive to
alter the conditions of the victim’s employment.” Patterson v. County of Oneida, 375 F.3d 206,
227 (2d Cir. 2004) (alterations and internal quotation marks omitted). In general the actions
taken by the defendant “must be more than ‘episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive.’” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)
(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). The test for determining
whether a workplace is a hostile work environment has both subjective and objective elements.
See id. “[T]he misconduct shown must be ‘severe or pervasive enough to create an objectively
hostile or abusive work environment,’ and the victim must also subjectively perceive that
environment to be abusive.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
When determining whether an objectively hostile work environment exists, courts must
consider the totality of the circumstances, including the frequency, severity, and offensiveness of
the allegedly discriminatory conduct, whether the conduct was physically threatening or
humiliating, and whether it unreasonably interfered with an employee’s work performance. See
Patterson, 375 F.3d at 227. The Second Circuit “treats the first two of these factors—the
frequency and the severity of the misconduct—as the principal focus of the analysis.” Aulicino v.
N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009). “Core hostile work
environment cases involve misconduct that is both frequent and severe, for example, when a
supervisor utters blatant racial epithets on a regular if not constant basis and behaves in a
physically threatening manner.” Id. (internal quotation marks omitted). Even still, “an
analyzed the same way); Parra v. City of White Plains, 48 F. Supp. 3d 542, 551 n.2 (S.D.N.Y.
2014) (“The same standards govern hostile work environment claims under Title VII, [§] 1981,
and the NYSHRL.”).
37
employer’s motion for summary judgment must be denied if the claimed misconduct ranks
sufficiently highly on either axis.” Id. “Where reasonable jurors could disagree as to whether
alleged incidents of . . . insensitivity or harassment would have adversely altered the working
conditions of a reasonable employee, the issue of whether a hostile work environment existed
may not properly be decided as a matter of law.” Patterson, 375 F.3d at 227. Finally, “[i]t is
axiomatic that the plaintiff also must show that the hostile conduct occurred because of a
protected characteristic.” Richards v. N.Y.C. Dep’t of Educ., No. 13-CV-16, 2015 WL 4164746,
at *10 (S.D.N.Y. July 10, 2015) (internal quotation marks omitted).
Plaintiff sets forth various actions that he alleges demonstrates he was subject to a hostile
work environment. For example, Plaintiff asserts that some, though not all, of the firefighters
stopped speaking to him after he filed his suit, (see Pl.’s Dep. 91), and that this group of
individuals “distanced themselves from [Plaintiff]” and “had less to talk to [him] about,” (id. at
93).16 With regard to the Chiefs, Plaintiff believed that Amodio was “second guessing
[Plaintiff]” and “mak[ing] [him] feel as though [he] was at risk of being written up.” (Pl.’s Dep.
117.) Both Barone and Morse were “overly critical” and Plaintiff “always f[elt] . . . on the edge
of being brought up on charges of insubordination,” or “written over nothing.” (Id. at 118–19.)
Luis in particular was “aggressively trying to find a way to write [him] up . . . looking for
something to second guess [him] on and write [him] up.” (Id. at 119.) Plaintiff, however, cannot
identify a specific instance where he was actually second guessed or written up for
insubordination, though Luis once verbally accused him of being insubordinate. (See Id.)
Plaintiff admits that a reason for any isolation he felt may have been due to the
discovery by other firefighters in the Fire Department that he had been secretly recording them.
(See Pl.’s Dep. 95 (“Q. Did it occur to you when you were being further isolated from your
coworkers that the reason why was they learned you secretly tape recorded them? A. I
understood that could be a factor, yes.”).)
16
38
Plaintiff further claims that Demchak made a remark asking if “it burn[s] [Plaintiff’s] ass
for [him] to call [Demchak] [L]ieutenant,” and that Demchak was “actively working against
[and] undermining [Plaintiff],” though he has not identified any examples. (Id. at 121.) Smith,
however, appears to be the focus of certain specific actions that Plaintiff identifies as cultivating
a hostile work environment. For example, Plaintiff claims that Smith, “repeatedly demeaned
[Plaintiff’s] military service, stating that “he was the talk . . . of 2014” and he was not
promotable due to his military service. (Pl.’s Mem. of Law in Supp. of Mot. for Summ. J. (“Pl.’s
Mem.”) 17 (Dkt. No. 93).) Plaintiff felt insulted by Smith, who stated that Plaintiff “spen[t] most
of [his] time sitting at Air National Guard, doing nothing. The whole world knows it.” (Id.)
Plaintiff also claims that Smith, joining with Demchak and others, “mocked” Plaintiff for not
being promoted. (Id. at 17–18.) This, according to Plaintiff, ultimately culminated in emails to
Barone in April 2015, wherein Smith stated that it was “‘impossible’ to work with [Plaintiff],”
(id. at 18), which then led to Plaintiff’s suspension, (see id.).
Here, taking into consideration the totality of the circumstances, the Court finds that the
conduct at issue was not sufficiently severe or pervasive to alter the conditions of Plaintiff's
employment. None of the conduct at issue involved physical harassment, and while the handful
of alleged statements by Smith, including that Plaintiff “spen[t] most of [his] time at Air National
Guard, doing nothing[,]” were rude and unbecoming of a colleague, they were not actionable
under USERRA or the NYSHRL. See Mock 851 F. Supp. 2d at 434 (“None of the alleged
conduct, including the telephone calls to [the plaintiff’s] wife, inquiries with his [r]eserve unit,
the comment about him playing war games, nor the notations in his performance evaluations
were severe or pervasive enough to constitute a hostile work environment.”). With respect to the
isolation claim, Plaintiff makes no showing that his coworkers’ refusal to socialize with him,
39
making him feel isolated, excluding him from conversation, and refusing to swap shifts with
him, was at all connected to his military service. In fact, it appears based on Plaintiff’s
deposition that this isolation was a result of the disclosure of his secret recording of his
colleagues, who, not surprisingly, “didn’t appreciate [him] secretly recording conversation.”
(Pl.’s Dep. 93–97.) Moreover, the mere fact that there was “just a general lack of conversation,”
(id. at 92), is insufficient to create a hostile environment, particularly given that Plaintiff gives no
specific examples of this behavior beyond this general assertion, see, e.g., Hanson v. County of
Kitsap, 21 F. Supp. 3d 1124, 1146 (W.D. Wash. 2014) (finding that the plaintiff’s showing of a
general refusal to socialize with him, resulting in isolation or exclusion from conversations was
not “sufficiently severe or pervasive to alter the conditions of his employment” (internal
quotation marks omitted)). While Plaintiff asserts that his subjective impression was that his
superiors undermined him at every turn and that they “added [a] level of scrutiny on [his] actions
. . . regardless of how well [he] perform[ed],” (Pl.’s Dep. at 104–05), this does not amount to an
objectively offensive conduct, because “the behavior was not severe, physically threatening, or
humiliating.” Vega-Colon v. Wyeth Pharms., 625 F.3d 22, 32 (1st Cir. 2010) (granting summary
judgment on a USERRA hostile work environment claim where the conduct was limited to name
calling, and generally “negative commentary on [the plaintiff’s] absences for military service”);
see also Mock, 851 F. Supp. 2d at 434; cf. Alfano, 294 F.3d at 370, 378–81 (reversing jury verdict
for the plaintiff based on a handful of comments/pranks discussing the plaintiff’s sexual practices
and displaying a vulgar cartoon depicting a subordinate with whom the plaintiff allegedly had
improper physical contact). The record is devoid of sufficient evidence from which a rational
factfinder could find that Plaintiff’s working conditions were altered by intimidation, ridicule, or
insult because of his military service.
40
Accordingly, Defendants ' Motion for Summary Judgment on Plaintiff's hostile work
environment claim is granted and Plaintiff's cross-Motion is denied.
III. Conclusion
For the foregoing reasons, Plaintiff's Motion for Summary Judgment is denied, and
Defendants ' Motion is granted in part and denied in part. Plaintiff's failure to promote claims
against Defendants Barone, Barber, and Morse, and Plaintiff's hostile work environment claims
against all Defendants are dismissed. The Court will hold a status conference on October 30,
2017 at 11 :30 AM. The Clerk of Court is respectfully directed to terminate the pending Motions.
(See Dkt. Nos. 80, 88 .)
SO ORDERED.
ai,
Dated: September
2017
White Plains, New York
41
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