Hawkins v. New York State Office of Mental Health et al

Filing 99

OPINION & ORDER re: 83 MOTION for Summary Judgment . filed by Teneathia Wesolowski, Rockland Psychiatric Center, New York State Office of Mental Health. For the reasons discussed, Defendants' Motion for Summary Judgment is GR ANTED in its entirety. All claims in this action against all Defendants are hereby dismissed. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 83, terminate the case, and enter judgment in favor of Defendants. The Cle rk of the Court is additionally directed to mail a copy of this order to Plaintiff at her known address on ECF and show proof of service on the docket. (Signed by Judge Nelson Stephen Roman on 9/19/2019) (rj) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

During discovery, Plaintiff voluntarily abandoned her race discrimination and hostile work
environment claims. (See Defendants’ Memorandum in Support of Summary Judgment, (“Def.
Mem.”), ECF No. 84 at 2; Plaintiff’s Letter Dated Sept. 6, 2018, ECF No. 74; Hawkins Dep. 74:811; 97:2-15, ECF No. 90-1.) Thus, Counts 3, 5, and part of 4 are dismissed, and only Plaintiff’s
retaliation claims are intact.
Presently before the Court is Defendants’ Motion for Summary Judgment. (See ECF No.
83.) For the following reasons, Defendants’ Motion is GRANTED.
BACKGROUND
The facts below are taken from the parties’ Rule 56.1 statements, affidavits, declarations,
and exhibits, and are not in dispute, except where so noted. All rational inferences are drawn in
Plaintiff’s favor.
Plaintiff’s Employment
Around December 2009, OMH hired Plaintiff as an Affirmative Action Administrator
(“AAA”) at OMH’s RPC facility in Orangeburg, New York. AAA’s primary job duties were
investigating discrimination complaints filed by state agency employees and processing reasonable
accommodation requests. Plaintiff’s direct supervisor was Marisol Nunez-Rodriguez, the Director
of the OMH Bureau of Diversity Planning and Compliance. From July 2015 onward, NunezRodriguez’s supervisor was Wesolowski, the OMH Director of Affirmative Action Programs.
Starting in approximately 2013, New York State adopted a uniform process for
investigating discrimination complaints at all State agencies, which was overseen by the
Governor’s Office of Employee Relations (“GOER”). Pursuant to GOER’s 10-Step Complaint
Investigation Process (“10-Step Process”), the AAA assigned to a case investigates it and

2

eventually submits a report to the GOER Workforce Development Unit (“WDU”). According to
Plaintiff, the draft is always submitted to the AAA’s direct supervisor for prior approval.
The 10-Step Process requires AAAs to complete an investigation and submit a draft report
within 30 days of the agency’s receipt of an employee complaint, or within 10 days if the complaint
has been filed with an external body, such as the United States Equal Employment Opportunity
Commission (“EEOC”) or New York State Division of Human Rights (“DHR”). The parties
dispute exactly what the procedure applies when the AAA requires more than the allotted 30 days
to complete the case investigation. But they agree that if an AAA requires more time to investigate,
the AAA must email WDU before the deadline, request an extension, provide a justification, and
propose a new anticipated completion date.
Plaintiff’s Initial Complaint
On October 28, 2015, Plaintiff filed a complaint with DHR alleging, inter alia, that GOER
and Elaine Bartley (“Bartley”), the Director of WDU, engaged in race discrimination. DHR
dismissed this complaint, though the parties dispute the reason. The parties also dispute whether
Wesolowski ever learned of this complaint. Regardless, on November 18, 2015, Plaintiff sent a
separate email to Wesolowski, accusing her of retaliation, which Wesolowski used to file an
official complaint to DHR on Plaintiff’s behalf. Neither party disputes that this November email
and its concomitant complaint constitute a protected activity.
Plaintiff’s Persistent Performance Issues
Several months before the filing of this official complaint, between May 2015 and
November 17, 2015, several individuals from several state agencies reviewed Plaintiff’s work, and
raised concerns about her work performance and inappropriate responses to supervision. Although
Plaintiff claims that she was never informed about any complaints about her work, the record

3

reflects that OMH began progressive efforts to provide Plaintiff with heightened supervision as
early as April 2015, based on these numerous reported deficiencies.
For example, in May 2015, Bartley, then Director of WDU, sent OMH Executive Director
Commissioner, Martha Schaefer, emails reflecting her concerns about “issues” with Plaintiff
“getting good investigations conducted” and her fear that Plaintiff didn’t “understand how to
conduct a proper investigation.” This same month, Bartley also represented her concerns with
Plaintiff’s work product, attitude, and insubordination.
Other supervisors also expressed concerns with Plaintiff’s work behavior and work quality
early on in 2015. For example, on June 23, 2015, Nunez-Rodriguez called Plaintiff to inform her
that an email Plaintiff sent to Bartley was considered inappropriate and was therefore documented.
Shortly thereafter, Nunez-Rodriguez also notified Plaintiff that she would begin reviewing all of
Plaintiff’s reports prior to submission to the WDU. The parties dispute whether Plaintiff was told
that the reason for this level of review was due to Bartley’s concerns about the quality of Plaintiff’s
investigation reports.
By July 2015, Bartley, who had been reviewing some of Plaintiff’s ongoing investigations,
noted several glaring issues with them and began circulating her concerns to other supervisors. For
example, on July 14, 2015, Bartley sent an email to Nunez-Rodriguez, Schaefer, and others that
stated: “I am very disturbed by [a] case [that has been assigned to Plaintiff] and how it has been
handled. Marva’s report and her investigation are completely unacceptable.” Similarly, on
September 23, 2015, Bartley sent Wesolowski an email that stated: “We need to meet about
Marva’s work overall and on this case in particular as soon as possible.”
Around this time, Wesolowski, an even higher supervisor of Plaintiff than NunezRodriguez, informed Bartley that because Nunez-Rodriguez’s intervention had not improved the

4

quality of Plaintiff’s reports, Wesolowksi would begin personally reviewing Plaintiff’s work.
Then, on September 24, 2015, Wesolowksi attempted to email Nunez-Rodriguez to request copies
of her supervision files regarding Plaintiff’s work performance, but Wesolowski inadvertently sent
the email to Plaintiff. This upset Plaintiff, who soon thereafter noted that she believed Wesolowski
was on a personal vendetta against her.
Nevertheless, Wesolowski’s concerns about Plaintiff remained intact, and on September
24, 2015, Wesolowski sent Nunez-Rodriguez an email that stated: “I think Marva needs to
understand that as her supervisor and reviewer, you do not find the work up-to-par with her
position and level of experience. If you disagree with that statement, please let me know.” That
same day, Nunez-Rodriguez sent Wesolowski a reply that stated: “I agree. Although, Marva works
on the past was good [sic], I have noticed that the quality of her work has declined.”
On October 1, 2015, Plaintiff forwarded Wesolowski’s inadvertently sent email to another
AAA and wrote: “[A]s you can see by this massive error (It was erroneously sent to me), my God
is with me and he would never allow my enemies to unjustly triumph over me[.]”
Around this time, Wesolowski took medical leave. But by the end of the month, Bartley
told Plaintiff that she planned to set up a meeting to discuss Plaintiff’s performance regarding the
WDU procedure when Wesolowski returned to the office.
Throughout the month of October, Wesolowski emailed Plaintiff, noting various concerns
she had with specific investigations and reports that Plaintiff had produced. Plaintiff responded to
each of these emails with hostile language. For example, on October 23, 2015, in response to a
request from Wesolowski that she communicate clearly about her cases, Plaintiff sent an email to
Wesolowski that stated:
I have always been very clear and open in my communication. I have never found
the need to have interacted with any of my team members in a calculated and
5

clandestine manner… [I]t is hard for me to comprehend the attempt to present me
as a recalcitrant person who had blatantly violated some policy/procedure.
On October 27, 2015, Wesolowski sent Plaintiff an email that stated:
Our communications are intended to help you by providing clarifying, constructive
and corrective feedback – not to characterize you, as you term it, ‘recalcitrant.’
However, your responses read as argumentative and unwilling to accept the
feedback… [B]oth Marisol and WDU have been expressing concerns with your
work and communications. Therefore, we are attempting to assist you with ironing
it out.
On October 28, 2015, Wesolowski sent an email to Nunez-Rodriguez that stated:
As you know, WDU has expressed concerns about Marva with regard to
communication, style, investigations, reports and insubordination. You also
indicated that you believe the quality of Marva’s work has declined, and from what
I have observed since returning to OMH, I agree that there are some
communications and quality issues that need address.
On October 29, 2015, Nunez-Rodriguez sent Wesolowksi an email that stated:
[B]ased on Elaine’s and my interactions with Marva, she has been provided enough
guidance and clear directions on what she is expected to do. She was insubordinated
[sic] to Elaine and to me. She has been alleging that she does not have clear
directions from WDU as an excuse for underperformance. Of all our AA staff, she
is the only one stating or alleging that the lack of guidance from WDU is affecting
her work.
The same day, Wesolowski, sent an email to Nunez-Rodriguez that stated: “I will re-review
the emails, so we can work on the counseling memo and performance plan.” Alas, on November
5, 2015, Wesolowksi sent an email to then-OMH Agency Labor Relations Representative Daniel
Ragone that requested his advice about how to address the issues with Plaintiff’s performance and
suggested that a performance improvement plan might be necessary.
Throughout November 2015, Plaintiff continued to show hostility to receiving feedback
and sent a series of emails to Wesolowski accusing Wesolowski of trying to “malign” her and
stating: “I don’t argue with people because I was not raised in a dysfunctional home and I do not
reside in one.” Yet, separately, on November 17, 2015, Lauren Axelrod, an attorney at New York
6

Empire State Development (“ESD”), called Wesolowski and stated that when Plaintiff had been
assigned to investigate ESD cases, her work had been “marginally acceptable” and “useless” and
requested that Plaintiff never be assigned to conduct investigations for ESD ever again.
On November 17, 2015, Bartley sent Nunez-Rodriguez and Wesolowski an email that
stated she had “a great deal of concern with Marva's work” because her report on one case was
five months late and she had “conclude[d] that the allegation is substantiated without knowing
whether there was a promotional opportunity available, what the decision making process is for
such promotions, whether the appts office has to be involved, etc.” In essence, Bartley again found
Plaintiff’s report error-laden and sub-par.
Continuing Issues with Plaintiff’s Work Performance After Protected Activity
Throughout November 2015, Plaintiff’s supervisors continued asking Plaintiff about the
status of several reports that were overdue. But Plaintiff’s timeliness and feedback issues persisted.
For example, on December 8, 2015, Bartley sent an email to Schaefer that stated:
Marva cannot accept any feedback. We had asked her to complete this investigation
timely (which was by 11/15) and she made multiple excuses about why she could
not get it done. She is the only AAO who routinely delivers her investigations
months late, fails to request extensions, misspells parties’ names, and never accepts
feedback. Her behavior is unacceptable.
Plaintiff continued, however, to turn in investigations late. She also continued to be hostile
in her emails to supervisors. On January 22, 2016, Plaintiff sent an email to Wesolowski that stated:
Unfortunately, you have not provided any useful information in the review of my
cases. You have only caused confusion and delay in the cases being completed
because you frequently provide the AAA’s with directives that conflict with
Marisol’s and the GOER 10-step process…. With her 30+ years of experience, I
am confident Marisol is able to provide me with any needed assistance.
Despite all of Plaintiff’s excuses, third party dissatisfaction with Plaintiff’s work quality
continually surfaced. Hence, on January 29, 2016, Bartley sent Wesolowski an email stating that

7

one of Plaintiff’s draft reports “makes no sense” and noting that it was “[v]ery confusing and
concerning that … it took [Plaintiff] more than 4 months to complete this unclear report.”
Plaintiff’s only responses to such critiques were unrelated excuses and sources of blame. For
example, throughout the beginning of February, Plaintiff continually commented about the lack of
positive contributions that she believed Wesolowksi and/or other supervisors were making in the
office. On February 4, 2016, Plaintiff went so far as to send Wesolowski, Schaefer, and NunezRodriguez an email speculating that “[p]erhaps, Marisol’s culture is a barrier to her speaking up.”
On February 8, 2016, Barley sent an email to Plaintiff and Nunez-Rodriguez stating that
Plaintiff’s latest report was “replete with errors, including spelling the complainant’s name (a male,
[RM]) different ways throughout the report (even in the same paragraph), referring in one
paragraph to the complainant as ‘she’ and ‘Ms.’ And … [e]ven more troubling is that the
complainant did not allege discrimination against him….” Bartley’s email stated:
[B]ecause the reports that I have reviewed from Marva have required substantial
feedback from me over the past year, I reviewed this one to see if there has been
improvement in the accuracy of the reports or if my suggestions in prior reports had
been incorporated going forward. They have not. I am really at a loss at this point
– it is pointless to revise this report, as from the outset, this was not a complaint of
discrimination, but I feel compelled to point out that last week was Groundhog Day
and I keep seeing the same problems with these draft reports over and over again.
On February 12, 2016, Nunez-Rodriguez and Ragone held a formal meeting with Plaintiff
during which Plaintiff was given a written counseling memorandum related to her performance
issues. Plaintiff was also informed that she was being placed on a three-month long performance
improvement plan to improve her responsiveness, work quality, and timeliness. Plaintiff did not
believe that her work performance required improvement in any of the areas noted.

8

Continuing Issues with Plaintiff’s Work and Insubordination
In March 2016, Wesolowski sent Plaintiff several emails asking about the status of various
drafts that Plaintiff submitted. Plaintiff disputes whether her responses to these emails were
contentious. That same month, Plaintiff sent a new complaint to WDU without the prior review
of Nunez-Rodriguez. Despite now arguing that all complaints required prior supervisor approval
before submission to the WDU, Plaintiff claims that she was never told that Nunez-Rodriguez had
to review her notice of complaint. When Nunez-Rodriguez then expressed her concern that
Plaintiff did not follow her instructions, Plaintiff denied that Nunez-Rodriguez had instructed her
to seek approval prior to sending them to WDU.
On April 15, 2016, nearly a month after the 30-day deadline for the report in one particular
case, Plaintiff sent WDU an email requesting an extension and claimed that she was instructed that
no report was needed. Plaintiff’s request for an extension on this case was denied, and on April
18, 2016, Bartley sent an email to Nunez-Rodriguez, Wesolowski, and Schaefer, stating that she
was concerned about Plaintiff’s “continuing failure to act as instructed, lying about it, and failure
to comply with the 10-step process.”
The next month, on May 11, 2016, Plaintiff sent Nunez-Rodriguez an email in which she
refused to implement Wesolowski’s edits on a draft report. Plaintiff claims that her refusal to
implement the edits was because she was confused about to what Wesolowski was referring.
During this general time, Plaintiff and Wesolowski went back and forth about various proposed
edits and Plaintiff’s proffered reasons for not implementing them.

9

Termination
On June 15, 2016, Nunez-Rodriguez sent Wesolowski and Ragone an email summarizing
the results of the performance improvement plan and concluding that Plaintiff had “failed to meet
the standards established in the [performance improvement plan] of February 12, 2016. On July
28, 2016, Nunez-Rodriguez and Ragone met with Plaintiff and informed her that OMH was
terminating her employment. Plaintiff claims that during this meeting, Ragone was the only one
who spoke to her and told her that her employment was being terminated. Although Wesolowski
had been involved in assessing Plaintiff’s performance in the months leading up to Plaintiff’s
termination, Wesolowski was on medical leave from approximately July 18, 2016 through
September 7, 2016 and did not participate in the meeting. No one at OMH ever told Plaintiff that
an adverse action occurred to her because her complaints about racial discrimination.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “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). The moving party bears
the initial burden of pointing to evidence in the record, “including depositions,
documents . . . [and] affidavits or declarations,” see Fed. R. Civ. P. 56(c)(1)(A), “which it believes
demonstrate[s] the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The moving party may support an assertion that there is no genuine dispute of a
particular fact by “showing . . . that [the] adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden,

10

the onus shifts to the nonmoving party to raise the existence of a genuine issue of material fact.
Fed. R. Civ. P. 56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
A genuine dispute of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; accord Gen. Star
Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009). Courts must “draw
all rational inferences in the non-movant’s favor,” while reviewing the record. Kirkland v.
Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). Importantly, “the judge’s function is not himself to weigh the evidence and
determine the truth of the matter,” nor is it to determine a witness’s credibility. Id. at 249. Rather,
“the inquiry performed is the threshold inquiry of determining whether there is the need for a trial.”
Id. at 250. Summary judgment should be granted when a party “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case.” Celotex, 477 U.S. at 322.
Critically, in an opposition to a motion for summary judgment “[s]tatements that are devoid
of any specifics, but replete with conclusions” will not suffice. Bickerstaff v. Vassar Coll., 196
F.3d 435, 452 (2d Cir. 1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986) (nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts”); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d
Cir. 2010) (nonmoving party “may not rely on conclusory allegations or unsubstantiated
speculation” (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998))).
When dealing with summary judgment motions in pro se cases, courts in this Circuit must
“read the pleadings of a pro se plaintiff liberally and “raise the strongest arguments that they
suggest” McPherson v. Coombe, 17 F.3d 276 (2d Cir. 1999) (quoting Burgos v. Hopkins,
214F.3d.787, 790 (2d. Cir. 1994)). Pleadings drafted by pro se plaintiffs moving for summary

11

judgment are not held to the same “stringent standards” as “formal pleadings drafted by lawyers.”
Shariff v. Poole, 689 F.Supp.2d 470, 476 (S.D.N.Y. January 20, 2010). On the other hand, pro se
plaintiffs cannot overcome a motion for summary judgment by simply making “bald” assertions
that are unsupported by the evidence. Id.
DISCUSSION
Defendants raise several arguments that stem from facts adduced during discovery as well
as conclusions they argue are warranted as a matter of law. The Court begins with the claims that
must be disposed as a matter of law and then turns to Plaintiff’s remaining claims.
Claims that Fail as a Matter of Law
Defendants first argue that several of Plaintiff’s claims fail as a matter of law because OMG
and RPC are New York State agencies and Wesolowski is a State employee. (Def. Mem.at 11.)
The Court agrees with Defendants that RPC and OMH are considered agents and
instrumentalities of the New York State. See Henny v. New York State, 842 F. Supp. 2d 530
(S.D.N.Y. 2012). Therefore, regarding Plaintiff’s NYLL Section 740 claim against OMH and RPC
(in Count 1), the Court finds that this state law does not apply to public employers. Dibiase v.
Barber, No. CV 06-5355, 2008 WL 4455601, at *5 (E.D.N.Y. Sept. 30, 2008) (“Section 740
pertains only to employees in the private sector and [ ] its public employee counterpart is New
York Civil Service Law § 75-b…”); Tamayo v. City of New York, No. 02 CIV. 8030(HB), 2004
WL 137198, at *7 (S.D.N.Y. Jan. 27, 2004). Plaintiff does not dispute this. Accordingly, Plaintiff’s
NYLL Section 740 claim is dismissed as a matter of law.
Next, regarding Plaintiff’s NYSCSL Section 75-b retaliation claim against OMH and RPC
(also in Count 1), Defendants argue that this claim is barred by the Eleventh Amendment. (Def.
Mem. at 11.) Plaintiff disputes this argument in part, noting that while Sovereign Immunity

12

protects OMH and RPC from claims for civil damages, it does not immunize them from
prospective injunctive relief. (See Plaintiff’s Opposition to Summary Judgment, (“Pl. Opp.”), ECF
No. 93 at 8-9.) Defendants concede so much, and the Court agrees. Accordingly, any claims for
monetary damages from OMH, RPC that Plaintiff brings under New York Civil Service Law
Section 75-b are dismissed as a matter of law as well. Plaintiff’s claims for injunctive relief survive.
Lastly, the Court agrees with Defendants that Plaintiff’s NYSHRL retaliation claim against
OMH, RPC, and against Wesolowski in her official capacity (in Count 2) need be dismissed as a
matter of law to the extent that Plaintiff seeks money damages. Lambert v. New York State Office
of Mental Health, No. 97-cv-1347, 2000 WL 574193, at *7 (E.D.N.Y. Apr. 24, 2000) (“As district
courts in this Circuit have uniformly found, the New York Human Rights Law includes no waiver
of the state’s immunity to suit in federal court.”); Sutherland v. New York State Dep’t of Law, No.
96-cv-6935, 1999 WL 314186, at *5 (S.D.N.Y. May 19, 1999) (“A suit against a state official in
his or her official capacity … is the equivalent of a suit against the state itself.”). Thus, as with
the claims in Count 1, these claims are dismissed as a matter of law to the extent that they seek
any money damages.
In sum, Plaintiff’s surviving claims are for Title VII retaliation against OMH and RPC
(Count 4), NYSHRL retaliation against Wesolowski, in her individual capacity, and NYSHRL
retaliation against Wesolowski in her official capacity, to the extent that Plaintiff seeks injunctive
relief (Count 2.)
Legal Standard for Retaliation Claim
Title VII and NYSHRL retaliation claims are both analyzed under the McDonnell Douglas
burden-shifting framework. Battacharia v. Pernod Ricard USA, LLC, No. 13-cv-7222 (NSR),
2015 WL 4879204, at *11 (S.D.N.Y. Aug. 13, 2015). Under this framework, to establish a prima

13

facie case of retaliation, “a plaintiff must show: ‘1) participation in a protected activity’ 2) the
defendant’s knowledge of the protected activity and the adverse employment action; 3) an adverse
employment action; and 4) a causal connection between the protected activity and the adverse
employment action.’” Id. (quoting Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir.
2013)); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 89 (2d Cir. 2015).
If the plaintiff establishes a prima facie case, “the burden shifts to the employer to articulate
some legitimate non-retaliatory reason for the employment action.” Battacharia, 2015 WL
4879204, at *11. “If the defendant fails to meet this burden, the presumption falls away and the
plaintiff must offer evidence demonstrating that the non-retaliatory reason is merely a pretext for
retaliation.” Id.
To defeat summary judgment, the plaintiff must “show that the ‘retaliation was a ‘but-for’
cause of the adverse action, and not simply a ‘substantial’ or ‘motivating’ factor in the employer’s
decision.’” Id. (quoting Zann Kwan, 737 F.3d at 845). This requires that the plaintiff set forth
evidence showing “’that the adverse action would not have occurred in the absence of the
retaliatory motive.’”) Id. (quoting Zann Kwan, 737 F.3d at 846). Where a plaintiff attempts to use
temporal proximity to establish causation, as Plaintiff does here, the “temporal proximity must be
‘very close’” to establish causation. Garcia v. Yonkers Bd. of Educ., 188 F. Supp. 3d 353, 360
(S.D.N.Y. 2016) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
Plaintiff’s Retaliation Claims Fail to Raise Triable Issues
To begin, the parties do not dispute that Plaintiff engaged in a protected activity when, on
November 18, 2015, Plaintiff emailed Wesolowski, accusing her of retaliating against Plaintiff—
and the next day, Wesolowski submitted that email along with a discrimination complaint to OMH
on Plaintiff’s behalf. Alvarado v. Mount Pleasant Cottage Sch. Dist., No. 18-CV-00494 (NSR),

14

2019 WL 4039149 (S.D.N.Y. Aug. 27, 2019) (“It is undisputed that ‘[i]nformal complaints to
supervisors,’ instituting litigation, [and] filing a formal complaint are protected activities under
Title VII.”) (quoting Giscombe v. N.Y.C. Dep’t of Educ., 39 F. Supp. 3d 396, 401 (S.D.N.Y. 2014)).
There is also no dispute that OMH and Wesolowski knew about Plaintiff’s retaliation complaint
as of November 2015. Plaintiff thus satisfies the first two prima facie elements for retaliation.2
The parties also do not dispute that termination that is a product of retaliation suffices as
an adverse employment action, as “[u]nder Title VII, the definition of an ‘adverse employment
action’ is broad.” Id. Therefore, as both parties have recognized, the crux of the case is whether
the factual record, construed in the light most favorable to Plaintiff, raises a triable issue of fact
that retaliation was the but-for cause of Plaintiff’s termination.
The Court finds that the record does not sufficiently support such causation for several
reasons. First, Defendants correctly note that Plaintiff’s retaliation claim is based entirely on
timing. (Hawkins Dep. 95:696:25; 191:25-195:5). And “[w]here a plaintiff attempts to use
temporal proximity to establish causation, the “temporal proximity must be ‘very close.’” Id.
(citing Garcia., 188 F. Supp. 3d at 360; Clark Cty. Sch. Dist. v. Breeden, 532 U.S. at 273). Further,
the Second Circuit has held that “[w]here timing is the only basis for a claim of retaliation and
gradual adverse job actions began well before the plaintiff had ever engaged in any protected
activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am Corp., 248
F.3d 87, 95 (2d Cir. 2001).

2

Although Plaintiff had filed a different complaint about race discrimination by different entities about a month earlier,
the record does not support that OMH, RPC, or Wesolowski knew about it. Further, even if they had wind of Plaintiff’s
previous complaint from the month before, such knowledge would not overcome the glaring deficiencies relating to
timing and causation in the instant case. Similarly, as far as any subsequent complaints that Plaintiff made, none of
them can support Plaintiff’s claim for retaliation, as no subsequent complaints can cure the defect Plaintiff has with
showing that her progressive supervision related to her ongoing performance issues that began in April and May 2015.

15

The record here shows ample proof that the heightened review of Plaintiff’s work,
increased counseling, creation of a performance improvement plan, and Plaintiff’s termination—
were all part of a continual and ongoing investigation that began due to multiple recommendations
several months before Plaintiff engaged in in protected activity. For example:
•

On April 8, 2015, Elaine Bartley, the Director of WDU, emailed Plaintiff pointing out
parts of Plaintiff’s report that needed improvement, such as the credibility analysis of
witnesses, which was entirely lacking, and the need to have a timeline that served a purpose
instead of one with nothing in it. (See Bartley email Dated 4/8/19, Hawkins Dec. Ex. 9,
ECF No. 95-9; Bartley Dec. ¶¶ 10-11, ECF No. 86.)

•

On May 6, 2015, Elaine Bartley raised further concerns about Plaintiff’s work product and
insubordination with other staff members when she sent OMH Executive Director
Commissioner Martha Schaefer an email to that effect. (See Bartley Dec. ¶ 16; Bartley
email chain dated 5/6/2015, ECF No. 86-8.)

•

Later that same month, on May 21, 2015, Bartley sent another email to Schaefer that stated:
I think we need to discuss Marva Hawskins’s work product, attitude, and/or
insubordination and Marisol’s apparent failure to supervise her. Marva
apparently does not feel that it is her obligation to investigate these
complaints properly or to seek out information requested of her, whether
requested by this office or her supervisor. (Def. 56.1 ¶ 21; Pl. 56.1 ¶ 21.)

•

On June 23, 2015, Plaintiff’s immediate supervisor Nunez-Rodriguez, called Plaintiff to
inform her that a response she sent to Bartley was inappropriate and documented that she
related this to Plaintiff. (Def. 56.1 ¶ 22; Pl. 56.1 ¶ 22.)

•

One day later, on June 24, 2015, Nunez-Rodriguez notified Plaintiff that she would begin
reviewing all of Plaintiff’s reports prior to submission to the WDU. (See Conroy Dec., ECF
No. 90-6.)

•

At this point, Plaintiff was aware that that there were already individuals from different
agencies, about whom she had not filed any complaints, who were reviewing her work
product for quality concerns. Indeed, in response to Nunez-Rodriguez’s email, the next
day, Plaintiff asked if she had been “relegated to a Person in Need of Supervision.” (See
Conroy Dec., Email Dated 6/25/15, ECF No. 90-6.)

•

On September 23, 2015, Nunez-Rodriguez’s supervisor, Teneathia Wesoloski, (the third
separately named individual to actively seek review of Plaintiff’s work for qualityassessment) informed Bartley that because Nunez-Rodriguez’s intervention had not
improved the quality of Plaintiff’s reports, Wesolowski would begin “personal reviews” of
Plaintiff’s work. (See Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27.)
16

•

By accident, the next day, Wesolowski emailed Plaintiff and not Plaintiff’s direct
supervisor Nunez-Rodriguez, an email stating: “I would like to review your supervision
files and any documentation you have regarding work performance for Plaintiff.” (See Def.
56.1 ¶ 28; Pl. 56.1 ¶ 28.)

•

That same day—September 24, 2015—still well-before Plaintiff had filed any complaint
of discrimination or retaliation against Nunez-Rodriguez or Wesolowski, NunezRodriguez replied to Wesolowski that she agreed that a qualitative review of Plaintiff’s
work product was necessary, stating: “I agree. Although, Marva works on the past was
good [sic], I have noticed that eh quality of her work has declined.” (See Def. 56.1 ¶ 31;
Pl. 56.1 ¶ 31.)
The record thus shows that at least three to five different supervisors who reviewed

Plaintiff’s work-product believed that it was sub-par, regardless of her work performance in earlier
years, and began reviewing and monitoring it as early as April and May of 2015. And throughout,
Plaintiff’s performance review, they raised concerns about Plaintiff’s work quality, such as lack
of clarity, lack of attentiveness, and timeliness. (See Def. 56.1 ¶ 44; Pl. 56.1 ¶ 44) (relating that
Lauren Axelrod, an attorney at New York Empire State Development called Wesolowski and
stated that when Plaintiff had been assigned to investigate ESD cases, her work had been
“marginally acceptable” and “useless” and requested that Plaintiff never be assigned to
investigations for ESD ever again); (See Email from Bartley Dated 1/29/16) (explaining that one
of Plaintiff’s draft reports “makes no sense” and noting that it was “[v]ery confusing and
concerning that … it took [Plaintiff] more than 4 months to complete this unclear report.” ); (See
Owen Conroy Dec., ECF No. 90-2) (discussing how Plaintiff continually asked for extensions of
time despite uniform policy of investigations needing to be completed within 30 days.); (See Email
from Paul Francis, ECF No. 95-23) (discussing how OMH had worked with Hawkins extensively
over several months in an effort to help her meet their performance expectations without success);
(See Email to Daniel Ragone dated 11/5/19, ECF No. 88-1) (describing how Plaintiff’s work
performance was getting worse, her insubordinate behavior was increasing, and her emails were
17

sounding more hostile with various supervisors); (See Email from Bartley to Nunez-Rodriguez
dated 7/14/19, ECF No. 86-11) (reflecting that “Marva’s report and her investigation are
completely unacceptable.”)
The record also reflects that once Plaintiff got wind of the fact that her work was being
closely monitored, she became increasingly hostile in her email communications with her
supervisors. For example:
•

On October 1, 2015, Plaintiff forwarded Wesolowski’s inadvertently sent email to another
AAA and wrote: “[A]s you can see by this massive error (It was erroneously sent to me),
my God is with me and he would never allow my enemies to unjustly triumph over me[.]”
(See Conroy Dec., Email Dated 10/1/2015, ECF No. 90-5.)

•

Then on October 23, 2015, in response to an email she received the day before, in which
Bartley and Wesolowski indicated that they would like to set up a meeting to discuss
Plaintiff’s performance with her, Plaintiff responded:
“I have always been very clear and open in my communication. I have never found
the need to have interacted with any of my team members in a calculated and
clandestine manner… [I]t is hard for me to comprehend the attempt to present me
as a recalcitrant person who had blatantly violated some policy/procedure.”

(See Def. 56.1 ¶ 34; Pl. 56.1 ¶ 34.)
Thus, throughout October, the record shows that Plaintiff already believed that her
supervisors were “enemies” who were trying to “unjustly triumph over [her]” and “present [her]
as a recalcitrant person who had blatantly violated” workplace conduct. Regardless of Plaintiff’s
reaction, Wesolowksi and Nunez-Rodriguez continued trying to assuage Plaintiff’s anxieties and
assure her that they were not trying to mar her reputation, but rather improve her performance.
Yet because Plaintiff continued with her hostile accusations in her emails, in October and
November, Wesolowski and Nunez-Rodriguez began discussing the need for a formal counseling
session with Plaintiff and the need to set her up on a performance improvement plan. In the context
of these discussions, Wesolowski and Nunez-Rodriguez noted ample examples of specific cases

18

in which Plaintiff had either missed deadlines, missed glaringly relevant evidence or completely
misinterpreted the relevance of factual developments that were detrimental to her completing her
reports accurately and adequately. (See Counseling Memorandum Dated February 12, 2016, ECF
No. 88-2) (listing out issues with at least six different investigations in which Plaintiff
demonstrated persistent investigatory inadequacies).
Plaintiff nevertheless continued believing in her theories, and two weeks before she made
her November 18, 2015 accusation against Wesolowski, she sent an email to a colleague accusing
Wesolowski of having “pure unadulterated ego” and threatening: “you know what they say ....
‘Pride goeth before the fall.’” (Def. 56.1 ¶ 41; Pl. 56.1 ¶ 41.) Despite Plaintiff’s emails,
accusations, and finally her complaint, Wesolowski and Nunez-Rodriguez continued monitoring
the status of the same investigations that they had been analyzing before Plaintiff’s complaints,
attempting to see if Plaintiff had improved her reports and investigations. As of December 2015,
however, they still believed that Plaintiff’s reporting and work performance was drastically
lacking. (See Bartley Dec. ¶¶ 39-41, ECF No. 86, 86-19.)
By the end of January, the record reflects that Plaintiff’s supervisors were still complaining
about Plaintiff’s issues with timeliness and thoroughness, and Plaintiff was still arguing about their
attitude and vendetta against her. For example, on January 22, 2016, Plaintiff sent an email to
Wesolowski that stated:
Unfortunately, you have not provided any useful information in the review of my
cases. You have only caused confusion and delay in the cases being completed
because you frequently provide the AAA’s with directives that conflict with
Marisol’s and the GOER 10-step process…. With her 30+ years of experience, I
am confident Marisol is able to provide me with any needed assistance.
(See Def. 56.1 ¶ 49; Pl. 56.1 ¶ 49.)

19

In response to this email, on January 29, 2016, Bartley told Wesolowksi that Plaintiff’s
reports continued to make no sense and were “very confusing” and that that it was concerning that
it was taking Plaintiff more than 4 months to complete such inadequate reports in the first place.
(See Email chain from January 29, 2016, ECF No. 86-20.) Even in February, Plaintiff continually
commented about the problems that she believed Wesolowksi and/or other supervisors were
making in the office, which she attributed to her performance issues.
Most ironically, on February 4, 2016, Plaintiff sent Wesolowski, Schaefer, and NunezRodriguez an email speculating that “[p]erhaps, Marisol’s culture is a barrier to her speaking up”
about the perceived dispute between Plaintiff and Wesolowki. Plaintiff still saw no issue with the
fact that all emails about her performance related to the lack of timeliness and thoroughness in her
work product. Yet all the emails she sent out related to her supervisors’ personalities, culture, or
supposed biases against her.
Finally, after being told in mid-February that Plaintiff would be placed on a three-month
long performance improvement plan, in March 2016, Wesolowski sent Plaintiff several emails
asking about the status of various drafts that Plaintiff submitted to which Plaintiff continued to
reply with hostility. (See Wesolowski Dec. ¶¶ 26- 34, 42, 43, 46.) In April, Plaintiff continued to
ask for extensions and refused to implement changes in her reports that were being directed by her
supervisors. (See id. ¶¶ 30, 31, 32, 45, 57.)
By the time the decision was made to fire Plaintiff, it was June 2016, which was over a
year after several of Plaintiff’s superiors had engaged in a prolonged review of her work-product
and behavioral issues. It was also after Plaintiff’s full three-month long performance improvement
plan had been implemented. The record reflects that Plaintiff’s supervisors deliberated whether
they felt there was any meaningful improvement despite the implementation of the plan and why

20

they concluded that there was not. (See Email from Paul Francis, ECF No. 95-23) (discussing how
OMH had worked with Hawkins extensively over several months in an effort to help her meet their
performance expectations without success and with consistent deficiencies documented).
While Plaintiff attempts to cite a Third Circuit case to support that “an intervening pattern
of antagonism is sufficient to support a claim of retaliation,” Robinson v. Se. Pennsylvania Transp.
Auth., Red Arrow Div., 982 F.2d 892 (3d Cir. 1993), the record does not support that there was
ever any intervening pattern of antagonism to which Plaintiff was subjected. The momentum
behind Plaintiff’s performance review commenced before her initial complaints and continued
throughout the year. Such timing does not support causation. See Wang v. Palmisano, 157 F. Supp.
3d 306, 327 (S.D.N.Y. 2016); (“where even very close temporal proximity exists, the requisite
causal connection will falter if the employer’s complained-of conduct began before the employee’s
corresponding protected activity”); Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 456
(S.D.N.Y. 2013) (“Although temporal proximity can sometimes demonstrate a causal nexus,
where (as here) the termination was ultimately the product ‘of an extensive period of progressive
discipline’ that began . . . three months before the [protected activity], a claim for retaliation cannot
be maintained.”), aff’d sub nom., Dabney v. Bed Bath & Beyond, 588 F. App’x 15 (2d Cir. 2014);
White v. Eastman Kodak, No. 06–CV–6493, 2009 WL 1514659, at *10 (W.D.N.Y. May 29, 2009)
(where “discipline was already underway prior to the protected activity . . . temporal proximity
alone is insufficient to make out a prima facie case”).
Accordingly, as the record fully reflects that Plaintiff’s protected activity came in response
to the heightened supervisory measures and none of the supervisory measures were on the heels
of her protected activities, the timing in this instance does not support the “requisite causal
connection” necessary to sustain a retaliation claim under city, state, or federal law.

21

Defendants Had Legitimate, Non-Retaliatory Reasons to Terminate Plaintiff
In addition, the Court finds that Defendants had legitimate, non-retaliatory reasons for all
of Plaintiff’s alleged adverse actions. First, the Court notes that the McDonnell Douglas analysis
is “not a particularly steep hurdle,” and the Court may not “second-guess an employer’s personnel
decisions, even if foolish, so long as they are non-discriminatory.” Hirschberg v. Bank of Am.,
N.A., 754 F. Supp. 2d 500, 511 (E.D.N.Y. 2010). More importantly, in this case, as discussed
above, there is abundant undisputed evidence supporting OMH’s decision to subject Plaintiff to
increasing levels of heightened supervision, counseling, a performance improvement plan, and
eventually termination based on a legitimate non-discriminatory reason, namely her sub-par
investigative capacity, inability to meet deadlines, and difficulty with harmonious communication.
The record reflects that there were at least six investigations to which Plaintiff was assigned
in which Plaintiff’s supervisors believed that Plaintiff’s analysis and comprehension of relevant
incidents fell below the mark. (See Elaine Bartley Dec., ECF No. 86 at 11-17.) Further, as already
discussed, the record reflects an abundance of emails in which Plaintiff’s tone in emails and
accusations about her supervisors being “enemies” with “vendettas” against her or having biases
based on “culture” demonstrate that Plaintiff’s employer had several legitimate bases for deciding
to terminate Plaintiff.
Plaintiff Has not Demonstrated Pretext
While Plaintiff conclusorily states that her employer’s proffered reasons for terminating
her were pretextual, Plaintiff has not offered one iota of proof that her supervisors/employer ever
discussed her complaints about race discrimination or her complaint about retaliation, let alone
that her complaints about either factored into the many ongoing decisions to analyze her work
performance and ultimately terminate her.

22

Indeed, the record shows just the opposite. Regarding her earliest complaint, from October
28, 2015, related to race discrimination by DHR and Bartley, there is no proof that this claim was
ever deemed colorable or (more importantly) that Bartley, Wesolowski, or OMH ever knew about
it. Regarding her second complaint, which was officially filed by Wesolowski, in which Plaintiff
accused Wesolowski of retaliating against Plaintiff, not one email correspondence shows
Wesolowski even reacting to this complaint, other than the one in which she decided to take the
affirmative step of using the email to file an official complaint on Plaintiff’s behalf.
From all the emails and exchanges that were produced during discovery, Plaintiff was
unable to find even one that showed discriminatory or retaliatory animus. In fact, Plaintiff admitted
herself that she did not believe anyone harbored any discriminatory bias against her (See Hawkins
Dep. at 74:11, ECF No. 90-1.)
To the extent that Plaintiff claims her supervisors knew she felt retaliated against for a long
time, (see Hawkins Dec. ¶¶ 55, 74, 83-88, 142), Plaintiff’s own self-serving statements, in her
affidavits, memoranda, and deposition are simply insufficient to overcome her burden of proof to
survive summary judgment, as they are all self-serving statements uncorroborated by any
additional evidence. See Fincher v. Depository Trust & Clearing Corp., No. 06 Cv. 9959, 2008
WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008) aff'd, 604 F.3d 712 (2d Cir.2010) (“A [nonmoving
party's] self-serving statement, without direct or circumstantial evidence to support the charge, is
insufficient to defeat a motion for summary judgment.”); Orisek v. Am. Inst. Of Aeronautics &
Astronautics, 938 F.Supp. 185, 191 (S.D.N.Y. 1996), aff’d, 162 F.3d 1148 (2d Cir. 1998) (finding
that a plaintiff’s own disagreement with her employer’s perceptions of her job performance does
not satisfy her burden of showing that the [employer’s] proffered justification as a pretext for
discrimination.”); Mavrommatis v. Carey Limousine Westchester, Inc., 476 F.App’x 462, 466 (2d

23

Cir. 2011) (holding that even a “positive performance evaluation” does not establish that
employer’s action was pretext where employer “provided evidence showing that [plaintiff] had
numerous job performance issues.”).
The Court has already discussed the many legitimate issues that arose with Plaintiff’s work
product over the span of her investigation. The Second Circuit has explained that it is not pretextual
for an employer to terminate an employee for failure to complete reasonable expectations of their
job. Slattery, 248 F.3d 87 (“Neither this court not a jury may determine on these facts that a
requirement for a new business representative to produce at least some new business over a two
year period is unreasonable and therefore must be pretextual.”). Plaintiff’s investigations were
repeatedly sub-par, and they were the core component of her job.
Accordingly, Plaintiff has not met her burden of proof to show that her employer’s
proffered reasons for terminating her were pretextual.3
Plaintiff’s Other Complaints are Not Adverse Employment Actions
Plaintiff complains about a host of instructions given to her by her supervisors that she felt
were onerous and unnecessary. For example, Plaintiff complains about: being reprimanded for the
information she includes on her Outlook calendar, being reprimanded about what details she was
supposed to include in her investigative reports, being assigned to projects that required her to
travel, and being scolded in emails in which she was supposed to include Wesolowski. (See
Hawkins Dep. At 47, 97-98, 54-56, 194.)
But as Defendants correctly note, to qualify as an adverse employment action, the
challenged action must be “materially adverse, which in this context means it well might have

3

The Court also notes that while the evidence produced a single satisfactory job review by Janet Monroe, Monroe
admitted that she “had no role in reviewing or supervising Plaintiff’s investigations work.” (See Janet Monroe Dec.,
ECF No. 89.) For this reason, amongst the others, this satisfactory job review does not create a triable issue of fact
related to areas in which Plaintiff’s job performance was lacking.

24

dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Davis-Garrett v. Urban Outfitters,
Incorporated, 921 F.3d 30, 43-44 (2d Cir. 2019) (finding that courts will look at “whether the
[alleged adverse action] to which [the plaintiff] was subjected could well have dissuaded a
reasonable employee” from “complaining of unlawful discrimination.”); Carter v. New York, 310
F. Supp. 2d 468, 479 (N.D.N.Y. 2004) (explaining that an “adverse employment action” must lead
to a “materially adverse change.”).
While the conduct of which Plaintiff complains could be considered adverse in a dignitary
sense, none of it rises to the level where a trier of fact could find that it would have dissuaded a
reasonable employee from complaining about discrimination or retaliation. See id. Accordingly,
Plaintiff’s other complaints are not cognizable adverse employment actions, and Plaintiff has not
produced enough evidence to support a prima facie claim for retaliation against any Defendants.

25