Russell v. Westchester Community College et al

Filing 264

OPINION AND ORDER re: 247 MOTION for Summary Judgment . filed by Veronica Delcourt, Westchester County, Heather Ostman, Westchester Community College.For the foregoing reasons, the motion for summary judgment is GRANTED and Plain tiff's Amended Complaint is dismissed. The Clerk of the Court is respectfully directed to terminate the motion sequence pending at Doc. 247 and close this case. SO ORDERED. (Signed by Judge Philip M. Halpern on 9/21/2023) (jca) Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SUZAN RUSSELL,
Plaintiff,
-againstWESTCHESTER COMMUNITY COLLEGE,
et al.,

OPINION AND ORDER
16-CV-01712 (PMH)

Defendants.
PHILIP M. HALPERN, United States District Judge:
Suzan Russell (“Plaintiff”) initiated this action on March 7, 2016 (Doc. 1) and filed an
Amended Complaint—the operative pleading—on July 29, 2016 (Doc. 18, “Am. Compl.”),
asserting claims against Westchester Community College (“WCC”), Veronica Delcourt, (“Dr.
Delcourt”), Heather Ostman (“Dr. Ostman”), and Westchester County (the “County,” and
collectively, “Defendants”). Plaintiff’s theories of liability included claims for unlawful
discrimination and retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§
12101 et seq., and unlawful discrimination and retaliation under the New York State Human Rights
Law (“NYSHRL”), N.Y. Exec. Law §§ 296 et seq., alleging that she was discriminated against for
having heart problems; and was not offered to teach classes for the Fall 2014 semester in retaliation
for complaining about the discriminatory treatment. (See Am. Compl.).
By Opinion & Order on September 27, 2017, Judge Karas denied Defendants’ motion to
dismiss the Amended Complaint. (Doc. 42). 1 Defendants filed their Answer on October 11, 2017

This decision is also available on commercial databases. See Russell v. Westchester Cmty. Coll., No. 16CV-01712, 2017 WL 4326545 (S.D.N.Y. Sept. 27, 2017).

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(Doc. 43), and the parties then engaged in discovery for four and a half years. Discovery in this
case ultimately concluded on April 29, 2022, following a “lengthy and tortured path.” (Doc. 193). 2
Defendants, in accordance with the briefing schedule set by the Court, moved for summary
judgment dismissing the Amended Complaint. (Doc. 247; Doc. 249, “Def. Br.”; Docs. 250, 251,
“Cosgriff Decl.”). Plaintiff opposed (Doc. 252, “Opp. Br.”; Doc. 254, “Tobin Decl.”), and the
motion was fully submitted with the filing of the motion, opposition, and Defendants’ reply papers
in further support of the motion on December 19, 2022 (Doc. 257, “Reply Br.”).
For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED.
BACKGROUND
The Court recites the facts herein only to the extent necessary to adjudicate the extant
motion for summary judgment and draws them from the pleadings, Defendants’ Rule 56.1
Statement and Plaintiff’s responses thereto (Doc. 254-37, “56.1”), and the admissible evidence
proffered by the parties. Unless otherwise indicated, the facts cited herein are undisputed.
Plaintiff alleges that she began to suffer a series of heart problems in 2013. (Am. Compl. ¶
24). She was employed as an adjunct professor at WCC at the time. (56.1 ¶¶ 7, 9). 3 On March 11,
2014, Plaintiff was taken to Beth Israel Emergency Room (“BI”) via ambulance. (Id. ¶ 22).
Plaintiff alleges that she had suffered a cardiac event. (Am. Compl. ¶ 25). Plaintiff, while at BI,

This decision is also available on commercial databases. See Russell v. Westchester Cmty. Coll., No. 16CV-01712, 2022 WL 1176909 (S.D.N.Y. Mar. 11, 2022).

2

The Local Rules of the United States District Courts for the Southern and Eastern Districts of New York
instruct that a “paragraph in the [movant’s] statement of material facts . . . will be deemed to be admitted
for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in
the statement required to be served by the opposing party.” Local Civil Rule 56.1(c). Furthermore, “[e]ach
statement by the . . . opponent . . . including each statement controverting any statement of material fact,
must be followed by citation to evidence which would be admissible . . . .” Id. at 56.1(d). Thus, the Court
deems Defendants’ statements of fact admitted unless specifically controverted by Plaintiff and supported
by citation to evidence. Brooke v. Cnty. of Rockland, No. 17-CV-03166, 2021 WL 809320, at *2 (S.D.N.Y.
Mar. 3, 2021), aff’d, No. 21-598-CV, 2022 WL 6585350 (2d Cir. Oct. 11, 2022).

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telephoned Dr. Delcourt, Associate Dean of the Department of Arts and Humanities at WCC (56.1
¶ 17), and told her that she was having an irregular heartbeat. (Id. ¶ 24). Dr. Delcourt asked
Plaintiff if she needed to have her classes covered and if so, to contact HR. (Id.). Plaintiff stated
that she was okay to work and would only be taking a day or two off. (Id.).
After Plaintiff’s return to work, and on or about April 30, 2014, a student went to thenDirector of Counseling, Ruben Barato (“Barato”), with concerns about Plaintiff’s behavior towards
her. (56.1 ¶ 32). Barato testified that the student was “visibly shaken up” because, according to the
student, she had just had an experience with Plaintiff during which Plaintiff berated, humiliated,
and cursed at her for plagiarizing a paper. (56.1 ¶ 34; Cosgriff Decl., Ex. S at 29, 123-124). Barato
referred the student to Dr. Ostman, Acting Chair of the English Department and then-Professor of
English at WCC. (56. 1 ¶¶ 15, 35). Dr. Ostman testified that the student mentioned to her that the
incident occurred while some students were in the classroom conferencing with Plaintiff and others
were out of the classroom. (Cosgriff Decl., Ex. I at 36-40). Since she began teaching classes as an
adjunct at WCC, Plaintiff conducted student conferences during classroom time while sending
other students out of the classroom. (Id. ¶ 30). Defendants contend that this practice is a violation
of Plaintiff’s contract, which Plaintiff disputes. (See id. ¶¶ 31-32). In any event, Dr. Ostman then
called Plaintiff to request her syllabus and inquired whether Plaintiff had released students during
class time when she should have been teaching them. (Id. ¶ 25). Dr. Ostman testified that Plaintiff
got “very angry very fast” and hung up on her. (Cosgriff Decl., Ex. I at 42:8-16). Plaintiff disputes
this. (56.1 ¶ 27).
The following day, on May 1, 2014, Plaintiff sent Dr. Ostman and Dr. Delcourt a four-page
email with the subject line reading, “please give me your policy or I am filing in federal court by
wed, 2 p.m.” (Id. ¶ 36). On May 2, 2014, Plaintiff sent Dr. Ostman, Dr. Delcourt, and others an

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email with the same subject line as set forth in the May 1, 2014 email, stating: “I am an arguer. I
do employment law for a law firm in New Jersey . . . In other words, I can be a pushy dirt bag. . .
. Even if you want to get rid of me, talk to me about it and I’ll show you how to do it so you don’t
get sued.” (Cosgriff Decl. Ex. D at 15-16).
Dr. Delcourt testified that on May 1, 2014, Plaintiff contacted her by phone and was
“aggressive” and “hostile.” (Cosgriff Decl., Ex. K at 131-133). Barato testified that when he told
Plaintiff that the student did not feel comfortable in her class, Plaintiff contacted him by phone and
left him a voice message that he felt was abusive, hostile, and angry, which he reported to security;
and sent him an email accusing him of being homophobic. (Id., Ex. S at 58-59, 66-67).
Plaintiff sent an email on May 1, 2014 to Dr. Ostman, asking whether she was aware that
Plaintiff had a heart attack on March 11, 2014 and stating, “So maybe there were reasons that I did
what I have been doing, There’s a reason for it.” (56.1 ¶ 41). On May 2, 2014, Plaintiff sent another
email to Dr. Ostman, advising that she had been hospitalized at BI, had a mild heart attack and
was given clearance to return to work. She added that she had been a little “cranky” and “humbly
apologized.” (Id. ¶ 42). Plaintiff, in the ensuing days, sent many emails to Barato, Dr. Ostman, and
Dr. Delcourt. (Id. ¶¶ 43-49).
Following a meeting on May 8, 2014 among Dr. Delcourt and others, the decision was
made to not offer classes to Plaintiff for the Fall 2014 semester. (Id. ¶ 56). Additionally, between
May 9, 2014 and May 11, 2014, Plaintiff sent at least seven emails accusing Dr. Ostman of having
a connection with a defendant in Plaintiff’s unrelated lawsuit against a university in New Jersey.
(Id. ¶ 51). By email dated May 12, 2014, Plaintiff was notified that she would not be offered classes
for the Fall 2014 semester. (Id. ¶ 57). On July 10, 2014, Plaintiff filed two discrimination
complaints online. (Id. ¶ 60).

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This litigation followed.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if
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). “A fact is ‘material’ if it ‘might affect the
outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Liverpool v. Davis, No.
17-CV-3875, 2020 WL 917294, at *4 (S.D.N.Y. Feb. 26, 2020) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). 4 “‘Factual disputes that are irrelevant or unnecessary’ are not
material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486,
2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). “The
question at summary judgment is whether a genuine dispute as to a material fact exists—not
whether the parties have a dispute as to any fact.” Hernandez v. Comm’r of Baseball, No. 22-343,
2023 WL 5217876, at *5 (2d Cir. Aug. 15, 2023); McKinney v. City of Middletown, 49 F.4th 730,
737 (2d Cir. 2022)).
The Court’s duty, when determining whether summary judgment is appropriate, is “not to
resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Id.
(quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court’s function
is not to determine the truth or weigh the evidence. The task is material issue spotting, not material
issue determining. Therefore, “where there is an absence of sufficient proof as to one essential
element of a claim, any factual disputes with respect to other elements of the claim are immaterial.”

Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and
alterations.

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Bellotto v. Cty. of Orange, 248 F. App’x 232, 234 (2d Cir. 2007) (quoting Salahuddin v.
Goord, 467 F.3d 263, 281 (2d Cir. 2006)).
“It is the movant’s burden to show that no genuine factual dispute exists.” Vermont Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970)). The Court must “resolve all ambiguities and draw all reasonable
inferences in the non-movant’s favor.” Id. (citing Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d
Cir. 2003)). Once the movant has met its burden, the non-movant “must come forward with
specific facts showing that there is a genuine issue for trial.” Liverpool, 2020 WL 917294, at * 4
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The
non-movant cannot defeat a summary judgment motion by relying on “mere speculation or
conjecture as to the true nature of the facts.” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9,
12 (2d Cir. 1986)). However, if “there is any evidence from which a reasonable inference could be
drawn in favor of the opposing party on the issue on which summary judgment is sought, summary
judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).
Should there be no genuine issue of material fact, the movant must also establish its
entitlement to judgment as a matter of law. See Glover v. Austin, 289 F. App’x 430, 431 (2d Cir.
2008) (“Summary judgment is appropriate if, but only if, there are no genuine issues
of material fact supporting an essential element of the plaintiffs’ claim for relief.”); Pimentel v.
City of New York, 74 F. App’x 146, 148 (2d Cir. 2003) (holding that because plaintiff “failed to
raise an issue of material fact with respect to an essential element of her[] claim, the District Court
properly granted summary judgment dismissing that claim”). Simply put, the movant must
separately establish that the law favors the judgment sought.

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“Courts have acknowledged the dangers of summary judgment in discrimination cases:
‘Because direct evidence of . . . discriminatory intent will rarely be found, affidavits and
depositions must be carefully scrutinized for circumstantial proof which, if believed, would show
discrimination.’” Benson v. Fam. Dollar Stores, Inc., No. 12-CV-01457, 2017 WL 11576213, at
*3 (N.D.N.Y. Mar. 31, 2017) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)
(citations and internal quotation marks omitted)), aff’d sub nom. Benson v. Fam. Dollar
Operations, Inc., 755 F. App’x 52 (2d Cir. 2018).
ANALYSIS
I.

Disability Discrimination (Claims 1 and 3)
Plaintiff’s first and third claims for relief allege that Defendants discriminated against her

in violation of the ADA and NYSHRL on the basis of her disability. Defendants argue, inter alia,
that this claim cannot survive summary judgment because there is no evidence that Plaintiff was
disabled or perceived as disabled within the meaning of the ADA. As set forth below, the Court
agrees and concludes that, even construing the evidence most favorably to Plaintiff, no rational
jury could find that Plaintiff was disabled or perceived as disabled for purposes of this claim and
that Defendants are therefore entitled to judgment as a matter of law.
The three-part burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) is used to analyze discrimination claims under the ADA and
NYSHRL. Razzano v. Remsenburg-Speonk Union Free Sch. Dist., No. 20-03718, 2022 WL
1715977, at *2 (2d Cir. May 27, 2022). The plaintiff must first, under that framework, establish a
prima facie case of employment discrimination based on a disability before the burden shifts to
the defendant to offer a legitimate, non-discriminatory reason for the challenged actions. Id.; see
also Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016) (“Under

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that framework, a plaintiff must first establish a prima facie case of discrimination, which causes
the burden of production to shift to the defendant to offer a legitimate, nondiscriminatory rationale
for its actions.”).
A prima facie case of disability discrimination requires a plaintiff to establish that: (1)
“[her] employer is subject to the ADA;” (2) “[s]he is disabled within the meaning of the ADA or
perceived to be so by [her] employer;” (3) “[s]he was otherwise qualified to perform the essential
functions of the job with or without reasonable accommodation;” and (4) “[s]he suffered an
adverse employment action because of [her] disability.” Brady v. Wal-Mart Stores, Inc., 531 F.3d
127, 134 (2d Cir. 2008). The elements of a prima facie claim of discrimination under the NYSHRL
are generally the same as those under the ADA. Kinneary v. City of New York, 601 F.3d 151, 158
(2d Cir. 2010). 5
The ADA Amendment Act of 2008 (“ADAAA”), effective January 1, 2009, defines
“disability” as (1) “a physical or mental impairment that substantially limits one or more major
life activities,” (2) “a record of such an impairment,” or (3) “being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). Plaintiff proceeds under the theories of “actual disability” and
“regarded as” having a disability. 6 The Court considers each in turn.
A. Actual Disability
“For purposes of determining whether an ADA plaintiff is a ‘qualified individual with a
disability,’ 42 U.S.C. § 12131(2), the ADA defines ‘disability’ to include, inter alia, ‘a physical

“One key difference between the NYSHRL and the ADA is that the NYSHRL has a broader definition of
disability than does the ADA in that it does not require any showing that the disability substantially limits
a major life activity.” Kirkland-Hudson v. Mount Vernon City Sch. Dist., No. 21-CV-00695, 2023 WL
2691622, at *20 (S.D.N.Y. Mar. 29, 2023). “Rather, under the NYSHRL, Plaintiff need only prove that she
has a medically diagnosable impairment.” Id. (cleaned up).
5

6

Plaintiff does not proceed under the “record of such impairment” prong of the ADA.

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or mental impairment that substantially limits one or more major life activities.’” Hamilton v.
Westchester Cnty., 3 F.4th 86, 92 (2d Cir. 2021) (quoting Woolf v. Strada, 949 F.3d 89, 93 (2d Cir.
2020)). “[P]ost-ADAAA, major life activities include, but are not limited to, ‘caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.’”
Graham v. Three Vill. Cent. Sch. Dist., No. 11-CV-05182, 2013 WL 5445736, at *11 (E.D.N.Y.
Sept. 30, 2013) (Bianco, J.) (quoting 42 U.S.C. § 12102(2)). Plaintiff contends that her impairment
is a heart condition, and more specifically that between “at least between March 11, 2014 and May
12, 2014, Plaintiff suffered from congenital heart conditions, and had been diagnosed with SVT,
pulmonic valvular stenosis, shortness of breath, palpitations, ventricular ectopy, frequent PVCs,
and regurgitation of her mitral valve.” (Pl. Br. at 3). She cites in support of this contention her own
declaration submitted in opposition to this motion; her own deposition testimony; sealed medical
records; and certain of her responses to the Rule 56.1 Statement which cited her own deposition
testimony and medical records. (Id.). While her personal accounts at deposition and in her
declaration generally support her arguments of this claimed impairment, 7 the cited medical records
Plaintiff’s testimony in some material instances, however, is inconsistent with her other sworn statements.
For example, Plaintiff verified in her interrogatory responses that Dr. Kristin Jensen was the provider who
determined that Plaintiff may have PTSD symptoms “following her severe heart attack” as set forth in
paragraph 29 of the Amended Complaint. (Cosgriff Decl., Ex. C at 56, Interrogatory Response No. 15).
However, during her deposition, Plaintiff denied that sworn statement, and testified that Dr. Yan Li was the
cardiologist who told her it was common after a heart attack to feel symptoms of PTSD. (Cosgriff Decl.,
Ex. J at 403:6-404:3,410:16-20, 564:7-565:20). And in her Declaration submitted in opposition to this
motion, she swears that it was Dr. Ferrick who informed her that “due to the severity of [her] cardiac event”
that she “may feel irritable at times” and “likened the feeling of irritability and anxiety following [her]
severe heart attack to that of post-traumatic stress disorder.” (Doc. 254-1, “Russell Decl.” ¶ 14). Further,
Plaintiff failed to controvert the fact in the Rule 56.1 Statement that she provided no records to support the
claim that she had a “PTSD-like feeling” after her heart attack. (56.1 ¶ 87). Importantly, the Medical Report
of Howard N. Tarkin confirms that other than Plaintiff’s own self-reporting, no medical evidence has been
produced that reflects that she suffered any heart attack on March 11, 2014. (See Tobin Decl., Ex. 21 at 6,
7, 10, 11). Even where there is not a direct contradiction between prior deposition testimony and new
allegations in a subsequent affirmation, on a motion for summary judgment the Court is not required to
7

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do not support her contention. 8
Rather, the medical records from 2013-2015 reveal that these purported impairments were
self-reported. (See Tobin Decl., Exs. 21, 22). 9 Plaintiff did not have cardiac surgery, abnormal
stress tests, intermediate coronary syndrome, serious heart problems, a history of myocardial
infarction, or a heart attack. (Id.). While Plaintiff testified that she was told by her doctors that she
accept the new allegations as “genuine” issues for trial. Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619
(2d Cir. 1996) (“[F]actual issues created solely by an affidavit crafted to oppose a summary judgment
motion are not ‘genuine’ issues for trial.”); Petrisch v. HSBC Bank USA, Inc., No. 07-CV-03303, 2013 WL
1316712, at *10-11 (E.D.N.Y. Mar. 28, 2013) (declining to consider new facts in opposition to summary
judgment motion where plaintiff “had the opportunity to testify about the new allegations during her
depositions” because “[p]ermitting plaintiff to add speculative and conclusory allegations to bolster her
claims after defendants have moved for summary judgment without permitting defendants to conduct
discovery on those new allegations would make plaintiff’s case a moving target” and the defendants had
been “denied the opportunity to ask follow-up questions and obtain more specific information.”); Heletsi
v. Lufthansa German Airlines, Inc., No. 99-CV-04739, 2001 WL 1646518, at *1 n.1 (E.D.N.Y. Dec. 18,
2001) (“A party cannot amend their complaint simply by alleging new facts and theories in their memoranda
opposing summary judgment.”); see also Patterson v. Patterson, No. 20-CV-02552, 2022 WL 356513, at
*6 (S.D.N.Y. Feb. 7, 2022); Berry v. Marchinkowski, 137 F. Supp. 3d 495, 520 (S.D.N.Y. 2015).
The Court has scoured the record in this case, sifting through the thousands of pages comprising the record
on the electronic docket and in the boxes and binders of hard copies submitted to the Court, searching for
documents corresponding to the myriad citations to Bates numbers which, in particular, were referenced by
Plaintiff to support her claimed impairment and limitations. Unfortunately, due in part to the convoluted
presentation of these motion papers which both sides here are guilty of creating (the briefs and Rule 56.1
Statement do not cite to any of the exhibit letters or numbers that were submitted on this motion, directing
the Court to deposition transcripts, affidavits, reports, and medical records by, for example, deponent name
or by Bates number, which required the Court to turn to other documents in an effort to piece together
where it might find the cited evidence), it appears that many of the cited documents are simply missing
from the record (e.g., “RC 00001-000002”; “RC 000916”; “RC 000919”; “RC 001005”; “SR 000004000005”; “SR 001300,” etc.). Parties “cannot simply dump papers on the court and expect the court to sift
through them to determine if some nugget is buried somewhere in that mountain.” Emanuel v. Gap., No.
19-CV-03617, 2022 WL 3084317, at *5 (S.D.N.Y. Aug. 3, 2022) (quoting Mirza v. Garnet Health, No. 20CV-00556, 2022 WL 826410, at *2 n.6 (S.D.N.Y. Mar. 17, 2022)). “Judges are not like pigs, hunting for
truffles buried in briefs or the record.” Sea Trade Mar. Corp. v. Coutsodontis, No. 09-CV-00488, 2015 WL
4998638, at *4 (S.D.N.Y. Aug. 20, 2015). Nonetheless, the Court accepted the parties’ invitation to go on
this expedition, at great judicial time and expense.
8

The documents cited by Plaintiff to rebut Defendants’ proffer that the medical evidence does not support
Plaintiff’s claimed conditions are either Plaintiff’s statements of her own medical condition, or are medical
records which incorporate Plaintiff’s statements, or were not included in the exhibits presented on this
motion (see 56.1 ¶¶ 64-79); but none are medical evidence of Plaintiff’s alleged medical condition or are
medical evidence refuting Defendants’ statement of fact, through expert testimony, that Plaintiff was in no
such condition.

9

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had abnormal test results, her doctors’ medical records fail to reveal any such abnormal test results.
“Summary judgment is appropriate where, as here, medical records directly contradict Plaintiff's
version of facts stated in [her] complaint and [her] Rule 56.1 Counter-Statement and where the
record is devoid of evidence of any kind supporting plaintiff’s description of [her] injuries—other
than [her] own claims.” Perkins v. Presley, No. 18-CV-03590, 2022 WL 769339, at *6 (S.D.N.Y.
Mar. 14, 2022). Plaintiff’s failure to rebut Defendants’ clear proof and raise a genuine issue of
material fact is fatal both to Plaintiff’s ADA claim based on a theory of actual disability as well as
her disability discrimination claim under the NYSHRL. See, e.g., Zuppardo v. Suffolk Cnty.
Vanderbilt Museum, 19 F. Supp. 2d 52, 58 (E.D.N.Y. 1998), aff’d, 173 F.3d 848 (2d Cir. 1999)
(“There is simply an absence of proof substantiating his assertions that he suffers from a disability,
even under the more liberal definition of the NYSHRL.”).
Even were the Court to accept as true that Plaintiff suffered from a heart condition, the
record is devoid of any evidence that she was substantially limited in one or more major life
activities as a result of such impairment as would be required to establish the existence of an actual
disability under the ADA. Plaintiff contends that her heart conditions “substantially limited
Plaintiff’s ability to perform various major life activities, including walking, standing, breathing,
lifting, exercising, and, concentrating.” (Pl. Br. at 3). Specifically, Plaintiff argues that:
[B]etween March 11, 2014 and May 12, 2014, as a result of her
medical conditions: Plaintiff was limited in her ability to walk,
stand, breath[e], lift, concentrate, and sleep; Dr. Ferrick told Plaintiff
not to run or exercise and to limit the amount she walked; Plaintiff
was physically incapable of playing competitive sports[;] Plaintiff’s
medication and heartbeat made her so tired that she was mostly
bedridden[;] Plaintiff was physically unable to do even basic
housework[;] the total number of classes Plaintiff was capable of
teaching at a time dropped from four to two[;] and Plaintiff
experienced severe, constant, and frequent shortness of breath.
(Id. at 17).
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Again, Plaintiff cites in support of this contention her own declaration submitted in
opposition to this motion; her own deposition testimony; and certain of her responses to the Rule
56.1 Statement which cited predominantly her own deposition testimony. The sole medical record
cited by Plaintiff is Dr. Jensen’s April 1, 2014 progress note which indicates that Plaintiff was
getting “some exercise”—and it is not clear to the Court how this document supports Plaintiff’s
argument that she was substantially limited in one or more major life activities. (Tobin Decl., Ex.
37 at 8). As described in the affidavit accompanying the Medical Report of Howard N. Tarkin,
Plaintiff’s medical records indicate that Plaintiff, during the relevant time period, was exercising,
playing tennis, walking two to three miles per day, and had started jogging. (See Tobin Decl., Ex.
22 at ¶¶ 17, 18).
“A diagnosis alone is insufficient to establish disability under the statute.” Ibela v. Allied
Universal, No. 21-01995-CV, 2022 WL 1418886, at *2 (2d Cir. May 5, 2022); see also PeterecTolino v. Com. Elec. Contractors, Inc., No. 08-CV-00891, 2011 WL 5105474, at *6 (S.D.N.Y.
Oct. 26, 2011) (the plaintiff’s failure to offer any medical evidence substantiating claimed
limitations undermines finding of disability under the ADA); Villanti v. Cold Spring Harbor Cent.
Sch. Dist., 733 F. Supp. 2d 371, 380 (E.D.N.Y. 2010) (concluding that doctor’s letter which
provided “virtually no information” “with respect to lifting, carrying, and exercising” was
insufficient to show a substantial limitation of the ability to work); see also Heilweil v. Mount Sinai
Hosp., 32 F.3d 718, 723 (2d Cir. 1994) (concluding that plaintiff failed to establish disability
where, inter alia, she offered “[n]o medical proof” substantiating her alleged limitations).
Plaintiff has not rebutted Defendants’ expert medical evidence and shown that her heart
condition rose to the level of a physical impairment that substantially restricted her from
performing day-to-day, essential tasks during the relevant time period as required by the first prong
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of a prima facie case for disability discrimination. See Diaz v. Local 338 of the Retail, Wholesale
Dept. Store Union, United Food & Commercial Workers, 13-CV-07187, 2015 U.S. Dist. LEXIS
86777, at* 63-65 (E.D.N.Y. May 15, 2015) (heart disease does not constitute a per se impairment
of a major life activity). Accordingly, Plaintiff has not, as against the expert medical evidence,
established a genuine issue of material fact that she was substantially limited in one or more major
life activities as a result of such impairment.
B. “Perceived” Disability
Plaintiff also proceeds alternatively on the “perceived disability” theory. 10 To succeed on
such claim, the plaintiff must establish that “she has been subjected to an action prohibited under
this Act because of an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). A
“plaintiff need only establish that [the] defendant regarded him [or her] as having a mental or
physical impairment and is ‘not required to present evidence of how or to what degree [defendant]
believed the impairment affected him [or her].’” Terpening v. McGinty, No. 21-CV-01215, 2022
WL 17418268, at *10 (N.D.N.Y. Oct. 5, 2022) (quoting Rodriguez v. Verizon Telecom, No. 13CV-06969, 2014 WL 6807834, at *5 (S.D.N.Y. Dec. 3, 2014)), adopted by 2022 WL 17415121
(N.D.N.Y. Dec. 5, 2022). 11

The Court disagrees with Defendants that Plaintiff abandoned the “regarded as” theory by failing to
address their argument concerning this theory. (Reply Br. at 7). Plaintiff, in her opposition, fully responds
by arguing the bases she believes that “a question of fact exists whether Defendants perceived Plaintiff to
be suffering from a covered disability since in the two months prior to being refused reappointment.” (Pl.
Br. at 14-15).

10

“Although ‘disability’ itself is defined differently under the ADA and NYSHRL, courts have observed
that the regarded as/perceived disability inquiry is the same under [ ] both statutes.” Makinen v. City of New
York, 53 F. Supp. 3d 676, 691 n.4 (S.D.N.Y. 2014) (citing Wagner v. Cnty. of Nassau, No. 11-CV-01613,
2014 WL 3489747, at *5 (E.D.N.Y. July 11, 2014) (collecting cases)).
11

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Plaintiff argues that the following facts establish that Defendants regarded her as disabled:
Plaintiff told Defendants she had a heart condition; Plaintiff told Defendants that she had a heart
attack that affected her mood; Plaintiff sent Defendants a medical diagnosis; Plaintiff submitted a
reasonable accommodation request at some time between March 11, 2014 and May 12, 2014 based
upon her heart condition; Dr. Delcourt was present when Plaintiff visited the WCC nurse; Dr.
Ostman testified at deposition that her impression of Plaintiff’s behavior was crazy, bonkers, and
having mental illness; and “most significantly,” Dr. Delcourt’s draft email that was never sent to
Plaintiff. (Pl. Br. at 14). The foregoing fails to demonstrate a genuine issue of material fact as to
whether Defendants regarded Plaintiff as disabled. They did not.
As an initial matter, Plaintiff’s communications to Defendants does not shed light on
whether Defendants regarded her as having a disability. “This inquiry turns on the employer’s
perception of the employee and is therefore a question of intent, not whether the employee has a
disability . . . While the Plaintiff has alleged that [s]he informed the Defendants of [her] disability,
[s]he has not alleged that [her] employer . . . regarded [her] as disabled under the ADA.” Laface
v. E. Suffolk Boces, 349 F. Supp. 3d 126, 147 (E.D.N.Y. 2018). A plaintiff must prove more than
an employer’s simple awareness of an employee’s impairment; the mere fact that an employer is
aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded
the employee as disabled or that perception caused the adverse employment action. Gentleman v.
State Univ. of New York - Stony Brook, No. 16-CV-02012, 2021 WL 8013819, at *11 (E.D.N.Y.
Mar. 31, 2021), aff’d sub nom. Gentleman v. State Univ. of New York Stony Brook, No. 21-1102CV, 2022 WL 1447381 (2d Cir. May 9, 2022).
Dr. Ostman’s deposition testimony likewise does not support a “regarded as” theory of
disability discrimination. Plaintiff attempts to manufacture an issue of fact by cherry-picking

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words from Dr. Ostman’s deposition in this case that described Plaintiff’s behavior in the relevant
time period as “crazy, bonkers, and having mental illness.” (Pl. Br. at 14 (citing Tobin Decl., Ex.
9 at 179:10-14, 218:14)). It is quite clear to the Court, based on the testimony in the pages
following the cited portions of Dr. Ostman’s deposition transcript, that Dr. Ostman’s description
was a “hindsight impression” made years after the relevant time period, and after having received
dozens of emails and threats from Plaintiff subsequent thereto. (Tobin Decl., Ex. 9 at 179-185,
218-220). Dr. Ostman’s deposition testimony simply does not support an inference that Defendants
believed Plaintiff was disabled during her employment at WCC.
The evidence that Plaintiff considers “most significant” in demonstrating an issue of fact
whether Defendants perceived Plaintiff to be suffering from a covered disability is Dr. Delcourt’s
draft email to Plaintiff prepared on May 2, 2014. (Pl. Br. at 14). Dr. Delcourt’s proposed email to
Plaintiff, which she did not send to her, stated in relevant part, as follows:
You wrote in your email that you were offended by Dr. Ostman’s
phone call, yet you admit more than once that you have been
“grouchy”, due to your health, in your own communication. I will
tell you that your aggression on the phone yesterday was
unexpected. I could not keep the phone to my ear as you sounded
very loud, angry and defensive. If this is how you are handling
situations in your class, please consider reflecting on your
communication style and whether or not your health may be
interfering with your teaching. This is one of the issues that has
come up with one of your students, that you have been sharp and
unwilling to discuss her concerns, calling her “a cheater.” Name
calling is not appropriate or acceptable. Please work with Dr.
Ostman to work through this issue and give her the details of your
plagiarism cases.
(Tobin Decl., Ex. 23 (emphasis added)).
This draft email does not form the basis for a “regarded as” claim. Bruzzese v. Sessions,
725 F. App’x 68, 72 (2d Cir. 2018) (supervisor’s expression of concern about plaintiff’s behavior
and how it affected his ability to be an effective law enforcement officer was “not more than a
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mere ‘scintilla’ of evidence” that supervisor regarded the plaintiff as disabled and insufficient to
maintain a “regarded as” claim); Bordeaux v. Halstead Prop. Dev. Mktg. LLC, No. 20-CV-01347,
2022 WL 484992, at *11 (S.D.N.Y. Feb. 16, 2022) (granting summary judgment finding that “a
reasonable jury would not understand the evidence in the record to suggest that [supervisors’]
actions and any expressions of worry demonstrate that they perceived” plaintiff as disabled).
Viewed in context with all the other evidence in the record, even in the light most favorable to
Plaintiff, a reasonable fact-finder would not understand Dr. Delcourt’s email to refer to any
disability, but rather to express her concern about Plaintiff’s behavior.
In sum, although the allegations in the Amended Complaint, taken as true, may have been
enough to “give plausible support to a minimal inference” of discrimination on the prior motion to
dismiss, the evidence in the record, even construed in Plaintiff’s favor, is not enough for her to
establish a prima facie case of discrimination at summary judgment, let alone to establish that
Defendants actually discriminated against her on the basis of her disability. See Dooley v. JetBlue
Airways Corp., No. 14-CV-04432, 2017 WL 3738721, at *6 (S.D.N.Y. Aug. 29, 2017), aff’d, 751
F. App’x 52 (2d Cir. 2018).
C. Legitimate Non-Discriminatory Reason and Pretext
Assuming arguendo that Plaintiff established a prima facie case of disability
discrimination, Defendants have proffered a legitimate, non-discriminatory reason for deciding to
not offer Plaintiff classes for the Fall 2014 semester.
Plaintiff, in addition to the student’s report that Plaintiff “berated, humiliated, and cursed
at her” (56.1 ¶ 34; Cosgriff Decl., Ex. S at 29, 123-124), telephoned Dr. Delcourt, Dr. Ostman, and
Barato separately, with each later testifying in sum and substance that Plaintiff was aggressive,
hostile, abusive, and angry in those calls (Cosgriff Decl., Ex. I at 42:8-16; id., Ex. K at 131-133;

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id., Ex. S at 58-59, 66-67). Plaintiff also sent a number of emails to Dr. Delcourt, Dr. Ostman, and
Barato in the ensuing days, taking issue with Dr. Ostman’s inquiry as to Plaintiff’s practice of
releasing students during class time, stating, in relevant part, that: “I just think it’s interesting that
after I have a heart attack that I start getting all this crap from you and the school. You have no
idea where I can go with that. . . . OR, you can let this go . . . . And, I am assuming that there will
be no retaliation.” (Cosgriff Decl., Ex. D at 17-18); “What? You guys haven’t had enough
lawsuits? . . . it looks like you act discriminatorily toward people with disabilities and health issues.
Amazing.” (id. at 20-21; Russell Decl., Ex. 5); “I have to tell you again that it does not look good
that you’ve had two lawsuits that involve someone with a chronic illness and someone with a
disability. . . . Then I have a heart attack and I’m getting crap. . . . What the hell is wrong with you
people?” (id.; Cosgriff Decl., Ex. D at 22); “I don’t know if I responded to this or not, but this is a
shallow excuse for something else that is going on here. . . . What I do know is that the dept, as I
mentioned, does not have a good employment track record when dealing with (hiring, firing,
tenure) illness. . . . All of their conditions are covered under the ADA which is federal law. Then,
all of a sudden, after my heart attack, I get a reprimand for conferences that seem to be common
practice in the dept and that have never been at issue in the past. You could say that that’s
circumstantially serendipitous, but I don’t think so, and a jury wouldn’t think so either.” (Russel
Decl., Ex. 6); “I asked you if you knew [the defendant in a separate litigation] and I found out that
you do . . . [I]f you were smart, you’d stay out of this because it’s way too big for you . . . So,
you’re on notice from me. I’m on to what’s going on here and will forward this info to the
attorneys. . . . [I]f WCC were smart, they wouldn’t make hiring decisions about me based on this
or my health. . . . That’s why the sudden interest in my classes, professor. Why didn’t this come
up in the last 27 years? I repeat: if you were smart, you’d stay out of this. If WCC were smart,

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they’d stay out of this.” (Id.). There are at least seven emails from Plaintiff to Dr. Ostman and
others between May 9, 2014 and May 11, 2014, which accuse Dr. Ostman of having a connection
with a defendant in Plaintiff’s lawsuit against a university in New Jersey and threatening Dr.
Ostman with litigation. (Cosgriff Decl., Ex. D).
Dr. Delcourt testified that she was “kind of in shock over the phone call” she had with
Plaintiff (Cosgriff Decl., Ex. K at 132), and based upon that encounter, as well as the information
provided to her by Dr. Ostman regarding Plaintiff’s conduct, the emails that Plaintiff sent, and the
student’s account of how Plaintiff acted with her, the decision was made, following a May 8, 2014
meeting, to not offer classes to Plaintiff for the Fall 2014 semester. (Id. at 131-133, 141-143).
Insubordination and conduct that disrupts the workplace are legitimate reasons for firing
an employee. Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000). “[I]nappropriate behavior is
indisputably a legitimate non-discriminatory reason for dismissing [an employee] from
[employment], even if the behavior resulted from [her] disability.” McElwee v. Cnty. of Orange,
700 F.3d 635, 644 (2d Cir. 2012); see also Johnson v. L’Oreal USA, No. 21-2914-CV, 2023 WL
2637456, at *4, *6 (2d Cir. Mar. 27, 2023) (record of plaintiff’s disrespectful conduct towards her
supervisor, peers, and subordinates, including sending inappropriate text messages, “provide[d]
ample support for L’Oréal’s asserted non-discriminatory reasons for Johnson’s termination,”
regardless of whether the misconduct was related to a disability).
Defendants have satisfied their burden to establish a legitimate, non-discriminatory reason
for the adverse employment action. See Wade v. N. Y. City Dep’t of Educ., 667 Fed. App’x 311
(2d Cir. 2016) (the truth of the allegations against the employee resulting in termination are
immaterial); McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In
a discrimination case, however, we are decidedly not interested in the truth of the allegations

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against plaintiff. We are interested in what motivated the employer . . . ; the factual validity of the
underlying imputation against the employee is not at issue.”).
The burden thus shifts back to Plaintiff to demonstrate that Defendants’ reasons were a
pretext for discrimination. Osekavage v. Sam’s East., Inc., 619 F. Supp. 3d 379, 390 (S.D.N.Y.
2022).
Plaintiff argues that the following is evidence of pretext: (i) the draft email prepared by Dr.
Delcourt on May 2, 2014; (ii) the “shifting” reasons for Plaintiff’s non-renewal; (iii) Defendants’
excuse that Plaintiff mishandled the student interaction is unfounded; (iv) Defendants violated
policy by failing to solicit Plaintiff’s take on the situation with the student; and (v) Defendants’
justification that Plaintiff was inappropriate with Dr. Delcourt and Dr. Ostman individually over
the phone is their word against Plaintiff’s about what happened in their respective conversations,
which is a “standard question of fact.” (Pl. Br. at 21-24).
With respect to Dr. Delcourt’s unsent email, context is key. Plaintiff selectively quotes
from the email, portraying the email as saying “that Plaintiff’s ‘grouch[iness]’ suggested her health
issues were interfering with her ability to teach.” (Id. at 22 (citing Tobin Decl., Ex. 23)). First, the
actual words come from two separate sentences in the draft email which read as follows: (1) “[Y]ou
admit more than once that you have been ‘grouchy’, due to your health, in your own
communication”; and (2) “If this is how you are handling situations in your class, please consider
reflecting on your communication style and whether or not your health may be interfering with
your teaching.” (Tobin Decl., Ex. 23). Second, Dr. Delcourt explained at her deposition that she
was repeating Plaintiff’s explanation for her aggressive and unprofessional conduct: “I’m not
saying that her health interfered with her teaching. I’m saying that she’s saying her health
interfered . . .” (Cosgriff Decl., Ex. K at 160:5-25 (emphasis added)). Third, a plain reading of the

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entirety of the email, with those sentences in their proper context, makes clear that Dr. Delcourt
simply meant that Plaintiff had characterized her own conduct as grouchy due to health issues; and
that if Plaintiff had been exhibiting such conduct in her classroom—specifically the aggression,
name calling, being loud, angry and defensive—it was not appropriate or acceptable. (Tobin Decl.,
Ex. 23). Plaintiff has introduced no evidence to suggest that this draft email could be interpreted
by a reasonable jury to establish a discriminatory intent or that Plaintiff was not offered classes for
the Fall 2014 semester for pretextual reasons. See Bordeaux, 2022 WL 484992, at *13.
The record evidence also does not demonstrate “shifting” reasons provided by Defendants
for Plaintiff’s non-renewal. Rather, a review of the evidence cited by Plaintiff reveals consistently
that the reason for the decision not to offer Plaintiff classes for the Fall 2014 semester was because
of Plaintiff’s behavior: an amalgamation that began with alleged conduct reported by the student,
and that which Dr. Delcourt and Dr. Ostman then experienced firsthand through phone calls and
emails from Plaintiff. (Pl. Br. at 22). Plaintiff’s argument is unsupported; she has not introduced
evidence suggesting “dual” or “inconsistent” explanations for the decision. (Id.).
Plaintiff’s argument that Defendants took the student’s version of events as true without
permitting Plaintiff to tell her side of the story—which Plaintiff contends is evidence that
Defendants’ explanation for the employment decision was unfounded as well as a violation of
policy—distorts the legitimate, non-discriminatory reason proffered by Defendants. (Id. at 23-24).
Defendants have not taken the position that the incident with the student on April 30, 2014 was
the basis for their employment decision. Plaintiff does not cite any evidence to suggest that
Defendants based their decision to not offer her classes on the student’s complaint and, even if
such evidence was borne out of this record, it would not be demonstrative of discriminatory intent.
Koppar v. Orange Reg’l Med. Ctr., No. 19-CV-11288, 2022 WL 348172, at *18 (S.D.N.Y. Feb.

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3, 2022), aff’d, No. 22-398-CV, 2023 WL 2484650 (2d Cir. Mar. 14, 2023); Flynn v. McCabe &
Mack LLP, No. 15-CV-05776, 2018 WL 794631, at *12 (S.D.N.Y. Feb. 8, 2018).
Finally, Plaintiff’s argument that an issue of fact is created by Defendants’ proffered
legitimate, non-discriminatory reason because it is “their word against Plaintiff’s” (Pl. Br. at 24),
ignores the other documentary evidence in the record beyond Defendants’ sworn testimony—in
particular, Plaintiff’s emails between May 1, 2014 and May 10, 2014. In other words, Defendants’
testimony is corroborated by documentary evidence and there is simply nothing in this record to
suggest that Plaintiff’s alleged medical condition or complaints of discrimination, rather than
Defendant’s perception of her workplace conduct, motivated the employment decision here.
“[T]here is neither a strong prima facie case, nor credible evidence that the employer’s explanation
was not held in good faith, nor any direct evidence [of discriminatory intent].” Flynn, 2018 WL
794631, at *12.
Accordingly, Defendants are entitled to summary judgment dismissing Plaintiff’s first and
third claims for relief.
II.

Retaliation (Claims 2 and 4)
“The burden-shifting framework under McDonnell Douglas also applies to retaliation

claims under both the ADA and the NYSHRL.” Tafolla v. Heilig, --- F.4th ---, 2023 WL 5313520,
at *10 (2d Cir. Aug. 18, 2023). If the plaintiff establishes a prima facie case, the defendant must
articulate a legitimate, non-retaliatory reason for its action, and the plaintiff then must show that
the offered justification is pretext for retaliation. Servello v. New York State Off. of Child. & Fam.
Servs., No. 21-02541, 2022 WL 17411287, at *1 (2d Cir. Dec. 5, 2022). The elements of a prima
facie retaliation claim under both the ADA and NYSHRL are: “(i) a plaintiff was engaged in
protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity;

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(iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection
exists between the protected activity and the adverse action.” Weixel v. Bd. of Educ. of City of New
York, 287 F.3d 138, 148 (2d Cir. 2002); Tafolla, 2023 WL 5313520, at *10.
Plaintiff alleges in the Amended Complaint that Defendants unlawfully retaliated against
her by refusing to employ her for the Fall 2014 semester based on her complaints of discrimination
contained in emails that Plaintiff sent in May 2014. (Am. Compl. ¶ 56). She specifies in her
opposition brief that the protected activities were her May 7, 9, and 10, 2014 emails and a disability
accommodation request submitted on WCC’s website “sometime between March 11, 2014 and
May 8, 2014 requesting to be excused from extra office hours.” (Pl. Br. at 20).
Defendants argue that Plaintiff’s emails do not constitute protected activity and because an
online discrimination form was submitted after the adverse action, there can be no causation.
A. Protected Activity
Emails complaining of discriminatory conduct may constitute protected activity for
purposes of a retaliation claim. Conklin v. U.S. Immigr. & Customs Enf’t, No. 20-CV-08178, 2023
WL 2537665, at *21 (S.D.N.Y. Mar. 16, 2023). Plaintiff contends that her emails to Dr. Delcourt
and Dr. Ostman between May 7 and May 10, 2014 constitute protected activity. (Russell Decl.,
Exs. 5, 6). As set forth above, Plaintiff’s dozens of emails in those four days charge Defendants
with giving her “crap” after she’s had a heart attack, threaten litigation, and accuse Dr. Ostman of
having a relationship with a defendant in one of Plaintiff’s other unrelated lawsuits. (Cosgriff
Decl., Ex. D; Russell Decl., Exs. 5, 6).
Plaintiff very explicitly presses complaints of discrimination in these emails. However,
anti-retaliation statutes are “not a license for offensive, disruptive, rude or demeaning behavior.”
Finn v. New York State Off. of Mental Health-Rockland Psychiatric Ctr., No. 08-CV-05142, 2011

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WL 4639827, at *18 (S.D.N.Y. Oct. 6, 2011), aff’d sub nom. Finn v. N.Y. State Off. of Mental
Health-Rockland Psychiatric Ctr., 489 F. App’x 513 (2d Cir. 2012). Other circuits have held “that
disruptive or unreasonable protests against discrimination are not protected activity . . . and
therefore cannot support a retaliation claim.” Matima, 228 F.3d at 79 (collecting cases). Indeed,
“[s]ome of these circuits locate this principle in the prima facie case, the first step in the burdenshifting under McDonnell Douglas . . . .” Id. at 79-80. This Circuit has not decided “whether such
disruptive, unreasonable conduct raises an issue that bears on the prima facie case.” Id. at 80.
The Court “need not decide whether such disruptive, unreasonable conduct raises an issue
that bears on the prima facie case” (id.), as Plaintiff also contends that she filed a disability
accommodation request on WCC’s website sometime between March 11, 2014 and May 8, 2014
requesting to be excused from extra office hours with students because it would aggravate her
heart condition. (Pl. Br. at 20). Requests for disability accommodation are protected activities.
Washington v. New York City Dep’t of Educ., 740 F. App’x 730, 733 (2d Cir. 2018). Defendants
argue that Plaintiff’s online complaint of discrimination was not filed until July 10, 2014. (See
56.1 ¶ 90 (admitting that “[t]he July 10, 2014 online complaint came only after Plaintiff was not
offered classes.”)). But Defendants do not address Plaintiff’s contention that she filed a disability
accommodation request on WCC’s website prior to Defendants’ decision to not offer her classes
for the Fall 2014 semester. Accordingly, accepting as true Plaintiff’s testimony that she made a
formal disability accommodation request to Defendants, the first element of a prima facie
retaliation claim is met.
B. Causal Connection
As previously noted, Defendants argue that Plaintiff fails to demonstrate a causal
connection between the protected activity and the decision to not offer her classes for the Fall 2014

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semester because, they contend, the protected activity was Plaintiff’s July 10, 2014 online
complaint of discrimination. While that July 10, 2014 complaint cannot form the basis of a
retaliation claim as it post-dates the adverse action, Santucci v. Levine, No. 17-CV-10204, 2021
WL 76337, at *7 (S.D.N.Y. Jan. 8, 2021) (“At the most basic level, defendants’ allegedly
retaliatory actions must occur later in time than plaintiffs’ protected speech.”), aff’d, No. 21-1329CV, 2022 WL 121281 (2d Cir. Jan. 13, 2022), Plaintiff relies upon other timely protected activity
for her claim, as discussed supra. She invokes temporal proximity to establish a causal connection
between the adverse action on May 12, 2014 and her May 7-10, 2014 emails and disability
accommodation request made on WCC’s website sometime between March 11, 2014 and May 8,
2014. Defendants have not responded to this argument.
Assuming that Plaintiff has established temporal proximity and therefore satisfies the
elements of a prima facie retaliation case, the retaliation claims still cannot survive summary
judgment because Plaintiff has offered no evidence from which a rational jury could find
Defendants’ legitimate, nondiscriminatory reason for her non-renewal to be a pretext for
retaliation.
C. Legitimate Non-Discriminatory Reason and Pretext
Defendants have proffered a legitimate, non-discriminatory reason for deciding to not offer
Plaintiff classes for the Fall 2014 semester. As discussed supra, insubordination and conduct that
disrupts the workplace are legitimate reasons for firing an employee. Matima, 228 F.3d at 79;
McElwee, 700 F.3d at 644; Johnson, 2023 WL 2637456, at *4, *6.
Much of the evidence upon which Plaintiff relies to establish that she engaged in protected
activity is the very same evidence that constitutes Defendants’ legitimate, non-discriminatory
reason for the adverse employment action. The Court’s determination that Defendants provided a

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legitimate, non-discriminatory reason for Plaintiff’s non-renewal in connection with her disability
discrimination claims applies equally to her claims of retaliation. Defendants have satisfied their
burden to establish a legitimate, non-discriminatory reason for the adverse employment action.
The burden thus shifts to Plaintiff to “prove that [her] termination would not have occurred
in the absence of a retaliatory motive.” Moore v. Kingsbrook Jewish Med. Ctr., No. 11-CV-03625,
2013 WL 3968748, at *20 (E.D.N.Y. July 30, 2013). Plaintiff’s purported evidence of pretext in
connection with her retaliation claims is the same as that which was considered and rejected herein
in connection with her disability discrimination claims. The evidence falls short for the same
reasons discussed above. The record simply does not contain sufficient evidence to support an
inference of retaliation. Accordingly, Defendants are entitled to summary judgment dismissing
Plaintiff’s second and fourth claims for relief.
III.

Aiding and Abetting (Claim 5)
Plaintiff’s fifth claim for relief alleges aider and abettor liability for discrimination and

retaliation against Dr. Delcourt and Dr. Ostman. As the Court has found Defendants are entitled
to summary judgment dismissing Plaintiff’s claims of discrimination and retaliation, there is
nothing for Dr. Delcourt or Dr. Ostman to have aided or abetted. Heron v. Medrite Testing, LLC,
No. 21-CV-09471, 2022 WL 1214179, at *7 (S.D.N.Y. Apr. 25, 2022). Accordingly, Defendants
are entitled to summary judgment dismissing Plaintiff’s fifth claim for relief.
CONCLUSION
For the foregoing reasons, the motion for summary judgment is GRANTED and Plaintiff’s
Amended Complaint is dismissed.
The Clerk of the Court is respectfully directed to terminate the motion sequence pending
at Doc. 247 and close this case.

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SO ORDERED:
Dated:

White Plains, New York
September 21, 2023
PHILIP M. HALPERN
United States District Judge

26