Murphy v. Wappingers Central School District et al

Filing 117

OPINION AND ORDER re: 82 MOTION for Summary Judgment . filed by Catherine DeFazio, 85 MOTION for Summary Judgment . filed by Joanne Sereda, Wappingers Central School District, Thomas Giorno, Ronald Broas. The District defendants' motion for summary judgment is GRANTED as to plaintiff's (i) Title VII and NYSHRL discrimination claims against the District, (ii) claim pursuant to 42 U.S.C. § 1983, and (iii) NYSHRL discrimination and retaliation clai ms against the individual defendants. The District's motion for summary judgment as to plaintiff's retaliation claims under Title VII and the NYSHRL is DENIED. Those claims shall proceed. DeFazio's motion for summary judgment is GRANT ED. The Clerk is instructed to terminate the pending motions. (Docs. ##82, 85). The Clerk is further instructed to terminate defendants Catherine DeFazio, Thomas Giorno, Joanne Sereda, and Ronald Broas. Counsel for plaintiff and the District are dir ected to appear at a status conference on May 18, 2018, at 9:45 a.m., at which time the Court will set a trial date and a schedule for pretrial submissions. By May 16, 2018, the parties shall submit a Joint Pretrial Order in accordance with the Co urt's Individual Practices. So Ordered., (Pretrial Order due by 5/16/2018., Status Conference set for 5/18/2018 at 09:45 AM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 4/16/18) *** Party Catherine DeFazio (as Head Custodian of Van Wyck Junior High School) , Catherine DeFazio (Individually) , Thomas Giorno (as Head Custodian of Van Wyck Junior High School) , Thomas Giorno (Individually) , Joanne Sereda (as Director of Human Resources/Title IX Coordinator) , Joanne Sereda (Individually) , Ronald Broas (Individually) and Ronald Broas (as Director of Facilities and Operations) terminated. (yv) Modified on 4/16/2018 (yv).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MICHAEL MURPHY,
:
:
Plaintiff,
:
:
v.
:
:
WAPPINGERS CENTRAL SCHOOL
:
DISTRICT, CATHERINE DEFAZIO, as
:
Head Custodian of Van Wyck Junior High
:
School and Individually, THOMAS GIORNO
:
as Head Custodian of Van Wyck Junior High
:
School and Individually, JOANNE SEREDA
:
as Director of Human Resources/Title IX
:
Coordinator and Individually, and RONALD
:
BROAS as Director of Facilities and
:
Operations and Individually, for aider and
:
abetter liability,
:
:
Defendants.
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OPINION AND ORDER
15 CV 7460 (VB)

Briccetti, J.:
Plaintiff Michael Murphy brings this employment discrimination case against defendants
Wappingers Central School District (the “District”), Thomas Giorno, Joanne Sereda, and Ronald
Broas (collectively, the “District defendants”), and Catherine DeFazio, alleging they violated his
rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York State Human
Rights Law (“NYSHRL”), and 42 U.S.C. § 1983.
Now pending before the Court are two motions for summary judgment filed separately by
DeFazio and the District defendants. (Docs. ##82, 85).
For the following reasons, the District defendants’ motion is GRANTED IN PART and
DENIED IN PART.
DeFazio’s motion is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1367.
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BACKGROUND
Drawing all permissible inferences in plaintiff’s favor, the following is a summary of the
relevant facts based on the parties’ briefs, statements of fact (“SOF”), and affirmations (“Aff.”)
with supporting exhibits.
I.

Plaintiff’s and DeFazio’s Jobs
Plaintiff began working for the District in October 2006, as a custodian at Fishkill Plains

Elementary School. In April or May 2011, plaintiff transferred to Van Wyck Junior High School
(“Van Wyck”), where he was a third shift custodian.
At that time, defendant DeFazio was Van Wyck’s head custodian. As head custodian,
DeFazio’s only supervisory responsibility was to “oversee[] custodians at . . . her building.”
(District Defs. Ex. BB). Each of Van Wyck’s custodians had a designated area which they were
responsible for maintaining. As head custodian, DeFazio was responsible for her own
designated area, and assigned the other custodians tasks to perform within their designated areas.
If Van Wyck’s custodians failed to perform their duties, DeFazio reported them to the “custodial
supervisor.” (Echevarria Aff. Ex. D at 145). DeFazio did not set the schedule for Van Wyck’s
custodians, or make hiring or firing decisions.
Plaintiff contends DeFazio controlled overtime hours offered to Van Wyck’s custodians,
but Van Wyck had a system for assigning overtime. A head custodian could not “assign
overtime work absent approval from a supervisor at the District’s Facilities Department.” (Broas
Aff. ¶ 20). Approved overtime first was offered to the most senior member of the custodial staff.
If that person declined the hours, it was offered to the other custodians on a rotating basis, or
“wheel.” (Lefland Aff. Ex. 2 at 43). However, according to plaintiff, DeFazio could manipulate

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the wheel by waiting until the last minute to offer overtime to whomever was next on the
rotation.
II.

DeFazio’s Alleged Offensive Conduct
In June 2011, DeFazio grabbed plaintiff’s buttocks in the custodian’s room. Plaintiff

responded, “what the hell,” and did not speak to DeFazio for the remainder of the day. (Lefland
Aff. Ex. 1 at 36).
According to plaintiff, from that time until August 2012, DeFazio touched, pinched, or
grabbed plaintiff repeatedly, as often as three times per week, although a few instances in
particular stand out.
First, in approximately July 2011, plaintiff was changing into his motorcycle gear after
his shift when DeFazio approached him from behind, grabbed his hips, and thrust her pelvis into
him. Plaintiff told DeFazio to “get the fuck off” of him. (Lefland Aff. Ex. 1 at 46).
Next, in August 2011, while the custodial staff was being photographed for the Van
Wyck yearbook, DeFazio grabbed the buttocks of another custodian, Sam Feiler.
Finally, in August 2012, plaintiff, DeFazio, and another custodian, Juan Uribe, drove to
plaintiff’s wife’s retail store on a lunch break. DeFazio told plaintiff’s wife her store was
difficult to see from the road, and suggested she station plaintiff outside “to dance on a pole.”
(Lefland Aff. Ex. 1 at 55). DeFazio then poked either plaintiff’s buttocks or side. Plaintiff
called DeFazio an “asshole,” and forcefully told her not to touch him again. (Id. at 56).
In addition to touching plaintiff, DeFazio regularly discussed sex and her sexual
preferences, and remarked on the appearance of custodians and District staff. DeFazio also kept
a card depicting a man in his underwear pinned to the wall in the custodian’s room.

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After the August 2012 incident at plaintiff’s wife’s store, DeFazio did not touch plaintiff
again, or make sexually offensive comments in his presence. However, on April 8, 2013,
DeFazio stood behind plaintiff during a meeting in the custodian’s room, lifted her shirt, put her
hands on her head, and performed a suggestive “wiggle-dance.” (Lefland Aff. Ex. 1 at 57–58).
III.

The District’s Sexual Harassment Policy
When plaintiff was hired by the District in September 2006, he acknowledged receipt of

the District’s sexual harassment policy. Among other things, the policy states: “it is essential
that all victims of sexual harassment and persons with knowledge of sexual harassment report the
harassment immediately.” (District Defs. Ex. E at 1). The policy includes a procedure for
reporting sexual harassment, and a complaint form. The policy indicates sexual harassment
complaints “should be filed with the Principal or the Title IX coordinator.” (Id. at 3).
Plaintiff attended the District’s sexual harassment training twice. The first time he
attended training was either January 2010 or January 2011. Plaintiff testified he was advised
during the training to report sexual harassment to “the appropriate person.” (Lefland Aff. Ex. 1
at 15–16).
IV.

The District’s Investigation of DeFazio’s Conduct
Plaintiff reported DeFazio’s offensive conduct to the District on February 21, 2013.

Plaintiff did not “feel like telling anybody” about DeFazio’s conduct at the time it occurred,
because it was “embarrassing.” (Lefland Aff. Ex. 2 at 79).
Plaintiff and the other third shift custodians had a meeting with defendant Broas, the
District’s director of facilities and operations, on February 21, 2013. The meeting was not
initiated for the purpose of discussing DeFazio’s discriminatory conduct, but plaintiff raised the

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issue. In response, Sam Feiler complained about DeFazio’s sex-related commentary, and the
instance in which DeFazio grabbed his buttocks.
Broas reported the custodians’ complaints to defendant Sereda, the District’s director of
human resources. Sereda initiated an investigation, which included interviewing plaintiff,
plaintiff’s wife, Van Wyck’s custodians, two former Van Wyck custodians, and a sixth grade
teacher. Sereda determined there were reasonable grounds to conclude DeFazio’s behavior
constituted sexual harassment in violation of the District’s policies and the law.
Sereda recommended a course of disciplinary action for DeFazio, including transfer to
Myers Corners Elementary School, a five-day suspension, and sexual harassment training.
DeFazio refused to comply. As a result, in May 2013, DeFazio was demoted from head
custodian to custodian, and transferred from Van Wyck.
While Sereda was conducting her investigation, plaintiff reported DeFazio’s April 8,
2013, “wiggle-dance.” In response, plaintiff’s schedule was adjusted to avoid any contact with
DeFazio.
V.

Alleged Retaliatory Conduct
According to plaintiff, after the August 2012 incident at his wife’s store, DeFazio’s

behavior toward him changed in several ways.
First, DeFazio was unfairly critical of his work. DeFazio filed written complaints with
District executives regarding plaintiff and the other third shift custodians on January 12, January
24, March 20, and April 1, 2013.
Second, DeFazio assigned him more strenuous and less desirable tasks than other
custodians were assigned.

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Third, DeFazio reduced the overtime work offered to plaintiff, and increased the overtime
offered to another custodian, Juan Uribe. In March or April 2013, plaintiff removed his name
from the overtime availability list because overtime was “getting played around so much.”
(Lefland Aff. Ex. 1 at 77).
Finally, in April or May 2013, DeFazio reported to the state police that the third shift
custodians had vandalized her car. DeFazio’s vandalism complaint was found unsubstantiated.
Plaintiff asserts defendants Giorno and Sereda engaged in retaliatory conduct as well.
Giorno replaced DeFazio as Van Wyck’s head custodian in July 2013. According to
plaintiff, Giorno told another custodian he came to Van Wyck “to clean up and get rid of the
virus,” which plaintiff took to mean get rid of plaintiff. (Lefland Aff. Ex. 1 at 102). Plaintiff
alleges Giorno assigned plaintiff undesirable tasks, was unfairly critical of plaintiff’s work, and
was generally rude and abrasive. According to plaintiff, after a disagreement in a custodians’
meeting, Giorno chased plaintiff, “saying something about kicking [his] ass.” (Lefland Aff. Ex.
1 at 90).
In September 2013, plaintiff was promoted to the position of head custodian at Myers
Corners Elementary School. Prior to his promotion, plaintiff was required to apologize in
writing to a bus driver to whom he made an explicit remark, and to attend anger management
classes. According to plaintiff, Sereda required him to acknowledge his behavior and write the
apology so she “could come back after” him at any time. (Lefland Aff. Ex. 2 at 106). Plaintiff
also testified that if he complains about his colleagues, human resources and Sereda are slow to
respond, but they respond very quickly if anyone complains about plaintiff.

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VI.

Procedural Background
On June 17, 2013, plaintiff filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). The charge included allegations substantially similar to
those currently before the Court.
On June 26, 2015, plaintiff received a right to sue letter from the EEOC, and on
September 21, 2015, plaintiff commenced this action.
DISCUSSION
I.

Legal Standard
The Court must grant a motion for summary judgment if the pleadings, discovery

materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit under the governing
law. . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010) (citation omitted). It is the moving party’s burden to establish the absence of any genuine
issue of material fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010).

7

If the non-moving party has failed to make a sufficient showing on an essential element
of his case on which he has the burden of proof, then summary judgment is appropriate. Celotex
Corp. v. Catrett, 477 U.S. at 323. If the non-moving party submits “merely colorable” evidence,
summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249–50. The
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citation omitted). The mere
existence of a scintilla of evidence in support of the non-moving party’s position is likewise
insufficient; there must be evidence on which the jury could reasonably find for him. Dawson v.
Cty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
reasonable inference could be drawn in favor of the non-moving party on the issue on which
summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
In deciding a motion for summary judgment, the Court need only consider evidence that
would be admissible at trial. Nora Bevs., Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d
Cir. 1998).

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III.

Claims Against the District
A.

Hostile Work Environment

Plaintiff asserts hostile work environment claims against the District pursuant to Title VII
and the NYSHRL. 1
The District argues DeFazio’s actions (i) do not amount to a hostile work environment,
and (ii) in any event, cannot be imputed to the District.
The Court disagrees with the first argument, but agrees with the second.
1.

Evidence of Hostile Work Environment

First, a reasonable jury could find DeFazio’s conduct toward plaintiff amounted to a
hostile work environment.
To establish a hostile work environment claim under Title VII or the NYSHRL, “a
plaintiff must produce enough evidence to show that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.” Rivera
v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (internal quotation
omitted). 2 The standard has objective and subjective elements: “the conduct complained of must
be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the
victim must subjectively perceive the work environment to be abusive.” Raspardo v. Carlone,
770 F.3d 97, 114 (2d Cir. 2014). “Whether a reasonable person would find a given work
1

Plaintiff also asserts a claim pursuant to 42 U.S.C. § 1983. Section 1983 claims may not
“be brought to vindicate rights conferred only by a statute that contains its own structure for
private enforcement, such as Title VII.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225
(2d Cir. 2004). Because plaintiff’s Section 1983 claim does not seek to vindicate any rights
other than those conferred by Title VII, the Section 1983 claim is dismissed.
2

“Hostile work environment claims under Title VII and the NYSHRL are governed by the
same standard.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).
9

environment to be hostile depends on the totality of the circumstances; [c]onsiderations include:
(1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct
unreasonably interferes with the employee’s work performance.” Mormol v. Costco Wholesale
Corp., 364 F.3d 54, 58 (2d Cir. 2004) (internal quotation omitted).
Here, plaintiff testified that between June 2011 and August 2012 DeFazio touched,
pinched, or grabbed him multiple times per week, and regularly discussed sex and her sexual
preferences. In addition, on April 8, 2013, DeFazio stood behind plaintiff, lifted her shirt, put
her hands on her head, and performed a lewd “wiggle-dance.” Plaintiff thus describes multiple,
specific instances in which DeFazio’s conduct made him “extremely embarrassed and very, very
annoyed.” (Lefland Aff. Ex. 1 at 46–47). There is no question a reasonable jury could conclude
DeFazio’s behavior toward plaintiff was severe, pervasive, and physically humiliating, and
created an abusive working environment for plaintiff.
The District nevertheless argues these facts fail to establish a hostile work environment
because events occurring prior to August 21, 2012, are time-barred.
The Court is not persuaded.
Under Title VII, a plaintiff generally can bring charges based on an employment practice
that occurred within 300 days of the filing of an EEOC charge. 42 U.S.C. § 2000e-5(e)(1).
Plaintiff filed his EEOC charge on June 17, 2013. (District Defs. Ex. A at 2). Thus, the 300-day
period covered by plaintiff’s EEOC charge extends back to August 21, 2012.
However, hostile work environment claims involve repeated, separate acts
that “collectively constitute one ‘unlawful employment practice.’” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115, 117 (2002) (quoting 42 U.S.C. § 2000e–5(e)(1)). As such, the

10

Supreme Court has held that “consideration of the entire scope of a hostile work environment
claim, including behavior alleged outside the statutory time period, is permissible for the
purposes of assessing liability, so long as an act contributing to that hostile environment takes
place within the statutory time period.” Id. at 105.
Here, DeFazio’s April 8, 2013, lewd “wiggle-dance” occurred within the statutory time
period. A reasonable jury could find DeFazio’s “wiggle-dance” contributed to the abusive
environment, and thus is part of the same hostile work environment claim as DeFazio’s earlier
conduct.
2.

District Liability Pursuant to Title VII

However, the Court concludes a reasonable jury could not impute liability for DeFazio’s
conduct to the District pursuant to Title VII.
“The Supreme Court has ruled that employers are not automatically liable for sexual
harassment perpetrated by their employees.” Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir.
2004) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775 (1998)). Instead, “[u]nder Title VII, an employer’s liability for such
harassment may depend on the status of the harasser.” Vance v. Ball State Univ., 570 U.S. 421,
424 (2013).
“If the harassing employee is the victim’s co-worker, the employer is liable only if it was
negligent in controlling working conditions.” Vance v. Ball State Univ., 570 U.S. at 421
(emphasis added). “In cases in which the harasser is a ‘supervisor,’ however, different rules
apply.” Id. (Emphasis added). Specifically, “[i]f the supervisor’s harassment culminates in a
tangible employment action, the employer is strictly liable.” Id. However, “if no tangible
employment action is taken, the employer may escape liability by establishing, as an affirmative

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defense, that (1) the employer exercised reasonable care to prevent and correct any harassing
behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or
corrective opportunities that the employer provided.” Id. (citing Faragher v. City of Boca
Raton, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765) (hereinafter the
“Faragher/Ellerth affirmative defense”).
i.

Supervisor Under Title VII

An employee is considered a “supervisor” “when the employer has empowered that
employee to take tangible employment actions against the victim, i.e., to effect a ‘significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.’”
Vance v. Ball State Univ., 570 U.S. at 431 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. at
761). In other words, a supervisor is an individual “‘empowered by the company as a distinct
class of agent to make economic decisions affecting other employees under his or her control.’”
Id. at 440 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. at 762) (emphasis omitted).
“[T]he question of supervisor status, when contested, can very often be resolved as a matter of
law before trial.” Id. at 443.
Plaintiff concedes DeFazio did not have the power to hire or fire him. Further, there is no
evidence to suggest DeFazio could demote plaintiff or determine whether to promote him, or
give him a raise. Although plaintiff’s argument is hardly a model of clarity, he seems to contend
DeFazio was his supervisor because she assigned him tasks within his designated maintenance
area, could recommend discipline, and could manipulate the overtime system so that he received
fewer overtime hours.
Plaintiff’s argument is unavailing.

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The ability to distribute daily tasks and recommend discipline are not tangible
employment actions within the meaning of Title VII. See, e.g., Travis v. City of Chicago, 2014
WL 4909060, at *12 (S.D.N.Y. Sept. 30, 2014).
Although the ability to control overtime is a closer call, there is no evidence DeFazio was
“empowered by” the District to manipulate the system for assigning overtime hours. Vance v.
Ball State Univ., 570 U.S. at 440. Moreover, plaintiff has not presented evidence suggesting the
alleged manipulation amounted to a tangible employment action. For example, plaintiff presents
no evidence regarding how many overtime opportunities DeFazio prevented him from taking, or
how the loss of overtime effected his income. Instead, the evidence indicates plaintiff earned
more income during the school year in which he confronted DeFazio, and complained to Broas,
than he did in the prior school year, despite having removed himself from the overtime
availability list mid-year.
In short, no reasonable jury could find DeFazio was plaintiff’s supervisor for Title VII
purposes. 3
Accordingly, to prevail on his Title VII claim, plaintiff must prove the District was
negligent in controlling working conditions. See Vance v. Ball State Univ., 570 U.S. at 421.
ii.

The District’s Negligence

There is no evidence to suggest the District was negligent in controlling working
conditions.

3

Thus, the District’s reliance on the Faragher/Ellerth affirmative defense is mistaken. See
Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765 (the defense protects an employer from
“vicarious liability to a victimized employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over the employee”) (emphasis
added).
13

A plaintiff may show an employer is negligent in controlling working conditions by, for
example, failing to “monitor the workplace . . . respond to complaints . . . [or] provide a system
for registering complaints,” or “effectively discourag[ing] complaints from being filed.” Vance
v. Ball State Univ., 570 U.S. at 449.
First, there is no evidence to suggest the District failed to respond to complaints of
harassment. To the contrary, it is undisputed that plaintiff did not complain about DeFazio’s
absuive conduct for more than a year and a half after the conduct began. It is also undisputed
that within weeks of plaintiff’s complaint, the District undertook an investigation. Following the
investigation, the District issued a report finding plaintiff’s complaint substantiated, and
disciplined DeFazio.
Second, there is no evidence to suggest the District failed to provide a system for
registering complaints. Rather, it is undisputed the District maintained a sexual harassment
policy which included a detailed complaint procedure, a complaint form, examples of
unacceptable conduct, a non-retaliation section, and an explanation of the District’s policy
toward confidentiality. The evidence also suggests it was the District’s practice to distribute the
policy to new employees. Indeed, when plaintiff was hired in 2006, he signed a form
acknowledging receipt of the policy. Although plaintiff now contends he is not certain he
actually received the policy, he testified to knowing the District’s policies were available online.
Third, there is no evidence to suggest the District discouraged complaints. Instead, it is
undisputed the District held sexual harassment training programs, at which employees were
required to register their attendance. Plaintiff attended two such programs, and testified he was
advised during training to report sexual harassment to the appropriate person.

14

Plaintiff alleges he “thought [complaining] was fruitless because he had reported the
matter to his union representative and president in or around September of 2012, and nothing had
been done.” (Compl. ¶ 61; see also Pl. Resp. to District Defs. 56.1 Stmt. ¶ 42). However,
plaintiff testified he complained to his union representative in August 2012 about reduced
overtime hours, not about DeFazio’s discriminatory conduct. (See, e.g., Lefland Aff. Ex. 2 at
77–79).
Based on the foregoing, the Court concludes no reasonable jury could find the District
was negligent in controlling working conditions.
Accordingly, summary judgment is granted with respect to plaintiff’s Title VII hostile
work environment claim against the District.
3.

District Liability Pursuant to the NYSHRL

Under the NYSHRL, an employer is only liable for discriminatory conduct that it
encouraged, condoned, or expressly or impliedly approved. See Human Rights ex rel. Greene v.
St. Elizabeth’s Hosp., 66 N.Y.2d 684, 687 (1985).
Plaintiff relies on the complaints of two former Van Wyck custodians, Donald Maul and
Mary Lasorsa, as evidence that the District condoned DeFazio’s conduct. However, Maul and
Lasorsa complained that DeFazio was rude, unprofessional, and unfairly critical, not that she was
discriminatory. (See Maul Aff. ¶¶ 7–8; Lasorsa Aff. ¶¶ 6–8). Because plaintiff has submitted no
evidence to suggest the District encouraged, condoned, or approved of DeFazio’s discriminatory
conduct, it is not liable under the NYSHRL.
Accordingly, summary judgment is granted with respect to plaintiff’s NYSHRL hostile
work environment claim against the District.

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B.

Retaliation

Plaintiff asserts retaliation claims against the District pursuant to Title VII and the
NYSHRL.
The District argues plaintiff’s retaliation claim is without merit, because he cannot, as a
matter of law, establish a materially adverse action or causation.
The Court disagrees.
Title VII’s anti-retaliation provision “forbids employer actions that ‘discriminate against’
an employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e3(a)). To establish a prima facie case of retaliation under Title VII or the NYSHRL, “an
employee must show that (1) [he] was engaged in protected activity; (2) the employer was aware
of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal
connection between the protected activity and that adverse action.” Lore v. City of Syracuse,
670 F.3d 127, 157 (2d Cir. 2012).
The District first argues the instances of retaliatory conduct plaintiff relies on to support
his claim are insufficiently adverse. However, for the purpose of retaliation claims, the
materially adverse action element “is not limited to discriminatory actions that affect the terms
and conditions of employment.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53,
64 (2006). Instead, it is understood to “appl[y] broadly to ‘employer actions that would have
been materially adverse to a reasonable employee or job applicant.’” Hicks v. Baines, 593 F.3d
159, 165 (2d Cir. 2010) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. at
57). “Actions are ‘materially adverse’ if they are ‘harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of discrimination.’” Id.

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(quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. at 57). In addition,
“alleged acts of retaliation need to be considered both separately and in the aggregate, as even
minor acts of retaliation can be sufficiently substantial in gross as to be actionable.” Id. (internal
quotation omitted).
Plaintiff testified that after the August 2012 incident at his wife’s store, he was offered
fewer overtime hours, lesser quality job assignments, and more strenuous job assignments.
Plaintiff also testified DeFazio unfairly scrutinized his work, made unwarranted complaints
about the quality of his work, and filed a complaint with the New York state police alleging
plaintiff vandalized her car. Although it is a close call, supported by little evidence aside from
plaintiff’s testimony, a reasonable jury could conclude DeFazio’s actions, in the aggregate,
would dissuade a worker from making a charge of discrimination; in other words, that they were
materially adverse.
The District next contends plaintiff, as a matter of law, cannot establish causation
because many of DeFazio’s adverse actions predated plaintiff’s February 21, 2013, complaint to
Broas. This argument is unavailing, because it ignores plaintiff’s August 2012 confrontation
with DeFazio. “Close temporal proximity is enough to establish causation at the prima facie
stage.” Vogel v. CA, Inc., 662 F. App’x 72, 77 (2d Cir. 2016). Thus, plaintiff’s testimony that
DeFazio began treating him differently shortly after August 2012 is sufficient to establish
causation.
Accordingly, summary judgment is denied with respect to plaintiff’s Title VII and
NYSHRL retaliation claims against the District.

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IV.

Claims Against the Individual Defendants
Plaintiff asserts sexual harassment, retaliation, and aiding and abetting claims against

defendants Broas, DeFazio, Giorno, and Sereda pursuant to the NYSHRL. 4
The NYSHRL allows for individual liability if the defendant (i) has an “ownership
interest” in the employer or the authority to “hire or fire” employees, Tomka v. Seiler Corp., 66
F.3d at 1317, abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742; or
(ii) aided or abetted conduct giving rise to a claim of discrimination. N.Y. Exec. Law § 296(6).
The Court addresses plaintiff’s claims against each defendant in turn.
A.

Broas

With regard to Broas, there is some evidence he had the ability to hire or fire employees.
However, there is no evidence to suggest he aided or abetted DeFazio’s conduct, or engaged in
conduct that would constitute sexual harassment or retaliation. Therefore, summary judgment is
warranted as to Broas.
B.

DeFazio

With regard to DeFazio, there is no evidence to suggest she had an ownership interest in
the District, or the ability to hire or fire employees. In addition, an individual cannot aid and
abet her own violation of the NYSHRL. See Hardwick v. Auriemma, 116 A.D.3d 465, 468 (1st
Dep’t 2014) (“Since it is alleged that [defendant’s] own actions give rise to the discrimination
claim, he cannot also be held liable for aiding and abetting.”). Therefore, summary judgment is
warranted as to DeFazio.

4

Plaintiff does not assert claims against the individual defendants pursuant to Title VII,
nor could he. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (“individual
defendants with supervisory control over a plaintiff may not be held personally liable under Title
VII”), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742.
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C.

Giorno

With regard to Giorno, there is no evidence to suggest he had an ownership interest in the
District, or the ability to hire or fire employees. There is also no evidence to suggest he aided or
abetted DeFazio’s conduct, or engaged in conduct that would constitute sexual harassment or
retaliation.
Plaintiff seems to contend Giorno’s rough treatment and threats aided and abetted
DeFazio’s retaliatory conduct. However, “empty verbal threats,” while perhaps unprofessional,
“are not materially adverse actions, where they are unsupported by any other actions.” Vazquez
v. Southside United Hous. Dev. Fund Corp., 2009 WL 2596490, at *12 (E.D.N.Y. Aug. 21,
2009). Because there is no evidence to suggest Giorno’s verbal threats were accompanied by
other actions, summary judgment is warranted as to Giorno.
D.

Sereda

With regard to Sereda, there is some evidence she had the ability to hire or fire
employees. However, there is no evidence to suggest she aided or abetted DeFazio’s conduct, or
engaged in conduct that would constitute sexual harassment or retaliation.
Plaintiff seems to contend Sereda’s investigation of plaintiff’s allegedly lewd remark to a
bus driver was undertaken with retaliatory intent. That investigation took place in August 2013.
Thus, it is too remote in time from plaintiff’s protected activity to allow for an inference of
causation. See Murray v. Visiting Nurse Services of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y.
2007) (“district courts within the Second Circuit have consistently held that the passage of two to
three months between the protected activity and the adverse employment action does not allow
for an inference of causation”).

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Plaintiff also contends Sereda responded slowly to his complaints regarding District
employees unrelated to this case. There is no evidence to suggest Sereda’s allegedly slow
responses are anything more than the type of “[p]etty slights or minor annoyances that often take
place at work and that all employees experience.” Hicks v. Baines, 593 F.3d at 165.
Therefore, summary judgment is warranted as to Sereda.
CONCLUSION
The District defendants’ motion for summary judgment is GRANTED as to plaintiff’s (i)
Title VII and NYSHRL discrimination claims against the District, (ii) claim pursuant to 42
U.S.C. § 1983, and (iii) NYSHRL discrimination and retaliation claims against the individual
defendants.
The District’s motion for summary judgment as to plaintiff’s retaliation claims under
Title VII and the NYSHRL is DENIED. Those claims shall proceed.
DeFazio’s motion for summary judgment is GRANTED.
The Clerk is instructed to terminate the pending motions. (Docs. ##82, 85).
The Clerk is further instructed to terminate defendants Catherine DeFazio, Thomas
Giorno, Joanne Sereda, and Ronald Broas.
Counsel for plaintiff and the District are directed to appear at a status conference on May
18, 2018, at 9:45 a.m., at which time the Court will set a trial date and a schedule for pretrial
submissions.

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By May 16, 2018, the parties shall submit a Joint Pretrial Order in accordance with the
Court’s Individual Practices.
Dated: April 16, 2018
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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