Snowden v. Southerton et al

Filing 85

OPINION AND ORDER re: 79 FIRST MOTION for Summary Judgment filed by County Of Sullivan, 78 FIRST MOTION for Summary Judgment filed by County Of Sullivan. The motion for summary judgment is DENIED. Plaintiff's r ace discrimination claim under Title VII against the County with respect to her suspension survives, but her race discrimination claim under Title VII with respect to her termination is dismissed. The Court will conduct a case management conference on December 18, 2024, at 10:00 a.m., to be held at the White Plains courthouse, Courtroom 620, at which time counsel shall be prepared to discuss, among other things, the setting of a trial date and a schedule for pretrial submissions, as well as what good faith efforts they have made and will continue to make to settle this case. In addition, by December 9, 2024, the parties shall submit a stipulation of voluntary dismissal as to plaintiff's Monell claim against the County. The Cler k is instructed to terminate the motion. (Docs. ##78, 79). SO ORDERED. ( Case Management Conference set for 12/18/2024 at 10:00 AM in Courtroom 620, 300 Quarropas Street, White Plains, NY 10601 before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 11/25/2024) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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LATOYA SNOWDEN,
:
Plaintiff,
:
:
v.
:
:
:
COUNTY OF SULLIVAN,
Defendant.
:
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OPINION AND ORDER
22 CV 514 (VB)

Briccetti, J.:
Plaintiff Latoya Snowden brings this employment discrimination action against defendant
the County of Sullivan (the “County”) under Title VII of the Civil Rights Act of 1964, alleging
the County discriminated against her on the basis of race. 1
Now pending is defendant’s motion for summary judgment. (Docs. ##78, 79). For the
reasons set forth below, the motion is DENIED.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
The parties have submitted briefs, statements of material fact pursuant to Local Civil
Rule 56.1, and declarations with exhibits. These submissions reflect the following factual
background.
I.

Plaintiff’s Employment
In 2013, plaintiff, a Black woman, began working as a Certified Nurse Assistant

(“CNA”) at the Care Center in Liberty, New York, a nursing home operated by the County. In

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By letter dated February 29, 2024, plaintiff “agree[d] to forego her Monell claim against
Sullivan County,” (Doc. #73) (the Fifth Cause of Action), although the parties have not
submitted a stipulation of dismissal as to that claim. The parties must do so, as instructed below.
All other claims and defendants have previously been dismissed. (Doc. #41 at 29; Doc. #75).
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her role, plaintiff assisted nursing home residents with their daily activities, such as bathing,
feeding, and grooming. Plaintiff worked at the Care Center until her suspension in January 2020
and termination in September 2020.
II.

The Allegedly Discriminatory Behavior
Plaintiff claims that soon after she began working at the Care Center, Susan Southerton,

the Acting Administrator and Director of Nursing, began commenting every few months on
plaintiff’s hair. At the time, plaintiff wore extensions in her hair, and plaintiff testified
Southerton told her “I don’t like your fake hair, you should wear your real hair.” (Doc. #82-2
(“Pl. Dep.”) at 13–14). In addition, plaintiff claims Southerton commented three times that her
fake fingernails were too long but never made similar comments to other nurses, even though
“everybody else had them.” (Id. at 23). On another occasion, around two years after plaintiff
began working at the Care Center, plaintiff testified Southerton told plaintiff she was “acting too
ghetto.” (Id. at 28–30). Although plaintiff disliked these comments, she did not report or
otherwise object to them because she feared Southerton would retaliate against her. (Id. at 87).
Plaintiff contends other non-white employees were “singled out” and charged more often
than white employees with disciplinary violations. (Doc. #82-4 (“Hearing Tr.”) at 214–18).
Plaintiff also contends Southerton showed preferential treatment to white employees. Like
plaintiff, other non-white employees similarly chose not to report issues involving Southerton to
avoid negatively impacting their jobs. (Pl. Dep. at 94–95).
In November 2019, plaintiff was assigned to a different floor of the Care Center, referred
to as “Unit Four.” During her first shift, plaintiff learned that two white nurses on Unit Four,
Rachel Hadley and Michelle Fortin, did not want plaintiff transferred to their floor and referred
to plaintiff as a “bitch.” (Pl. Dep. at 42). According to plaintiff, Hadley and Fortin would make

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remarks under their breath while looking at plaintiff and refused to work with her. (Id. at 115–
16). Plaintiff also claims she heard them say they did not like Black people.
Plaintiff eventually complained to Southerton, as well as to staffing coordinator Jason
Conroy and plaintiff’s immediate supervisor Jennifer Tompkins, about Hadley and Fortin’s
behavior, and requested in writing that Conroy relocate her to a different floor. During a meeting
with Conroy, plaintiff began crying while she described feeling uncomfortable on Unit Four and
how the other CNAs did not want to work with her. Despite her efforts, plaintiff was not
reassigned. Thereafter, plaintiff began arriving late to work to avoid working on Unit Four.
On November 24, 2019, plaintiff had an argument with another nurse, Raymaresa Smith,
regarding plaintiff’s tardiness (the “2019 Incident”). Smith claimed plaintiff threatened to “put
her hands” on Smith “outside” the Care Center and followed her. According to plaintiff,
however, she neither threatened nor followed Smith, and instead suggested they continue the
conversation at a later point outside the facility to avoid disturbing the nursing home residents.
On January 6, 2020, several nurses, including plaintiff, were involved in an incident in
the parking lot of the Care Center (the “2020 Incident”). According to plaintiff, she and another
nurse, Maria Cruz, were outside on a break when Hadley approached Cruz and began yelling at
her. Hadley called Cruz a “bitch” and “hood booger,” accused her of having “fucked [her] man,”
and began removing her earrings. (Pl. Dep. at 60). Plaintiff contends she tried to intervene and
calm Hadley down, Cruz ignored Hadley, and no physical altercation occurred. Plaintiff spoke
to the police after they were called to the scene, and informed Tompkins she did not want to
work with Hadley and did not want to work on Unit Four that night.
Shortly after the 2020 Incident, plaintiff and Cruz were suspended with pay from working
at the Care Center. No disciplinary action was taken against Hadley. (Hearing Tr. at 237).

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Plaintiff also testified that, on an unknown date, Hadley threatened to “choke” Cruz in
front of a house manager, and although the incident was reported, Hadley was not disciplined.
(Pl. Dep. at 120).
III.

Plaintiff’s Termination
On April 24, 2020, plaintiff was served with civil service charges alleging she had

violated the County’s policies against Workplace Violence Prevention and Discrimination and
Discriminatory Harassment. (Doc. #79-3 at ECF 1–2) . 2 Southerton testified she spoke with
County personnel and came to the “joint decision” to pursue these charges against plaintiff.
(Doc. #79-11 at 55–56). On April 27, 2020, plaintiff was suspended without pay. (Doc. #79-3 at
ECF 1).
On August 25, 2020, a New York Civil Service Law Section 75 Hearing (the “Section 75
Hearing”) was held before a hearing officer. The County called several witnesses, including
Hadley and Smith, who testified about the 2019 and 2020 Incidents. Plaintiff then testified in her
own defense about the two incidents, her friendship with Cruz, and the racially discriminatory
treatment she experienced at the Care Center. Plaintiff also called Cruz as a witness, who
testified regarding the 2020 Incident and spoke about the “bad blood” between herself and
Hadley due to their prior relationship with the same man. (Hearing Tr. at 225). Southerton was
not called as a witness.
On September 24, 2020, the hearing officer issued a seven-page report recommending
plaintiff’s termination for violating the County’s workplace violence and harassment policies.
(Doc. #79-5).

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“ECF __” refers to page numbers automatically assigned by the Court’s Electronic Filing
System.
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On September 29, 2020, Stephanie M. Brown, the appointing authority for plaintiff’s
position, sent plaintiff a letter informing her that Brown adopted the hearing officer’s report and
recommendation and found plaintiff guilty of all charges, and that plaintiff was terminated from
the Care Center. (Doc. #79-8).
IV.

Plaintiff’s EEOC Charge
On April 27, 2020, plaintiff submitted a Charge of Discrimination (the “EEOC Charge”)

to the Equal Employment Opportunity Commission (“EEOC”). (Doc. #26-1). In the EEOC
Charge, plaintiff asserted she was discriminated against on the basis of race because she and
Cruz were suspended following the 2020 Incident, but Hadley was not.
On October 27, 2021, plaintiff received a “Notice of Suit Rights” from the EEOC. (Doc.
#26-1 at ECF 5). Plaintiff thereafter commenced this action.
DISCUSSION
I.

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

materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 3
A fact is material when it “might affect the outcome of the suit under the governing
law . . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Unless otherwise indicated, case quotations omit all internal citations, quotations,
footnotes, and alterations.
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A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010). It is the moving party’s burden to establish the absence of any genuine issue of material
fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc. v.
CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
reasonable inference could be drawn in the non-movant’s favor on the issue on which summary
judgment is sought, summary judgment is improper. Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Bald assertions, completely unsupported by
admissible evidence, are not sufficient to overcome summary judgment. Carey v. Crescenzi, 923
F.2d 18, 21 (2d Cir. 1991).
II.

Title VII Race Discrimination Claim
Under Title VII, it is unlawful for an employer “to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). When, as here, a plaintiff’s
Title VII discrimination claims are based on circumstantial evidence of discriminatory intent, the
claims are analyzed under the familiar burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Porter v. Dartmouth-Hitchcock Med. Ctr., 92
F.4th 129, 149 (2d Cir. 2024).

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Under the McDonnell Douglas framework, a plaintiff establishes a prima facie case of
discrimination by demonstrating “(i) membership in a protected class; (ii) qualifications for the
position; (iii) an adverse employment action; and (iv) circumstances surrounding that action
giving rise to an inference of discrimination.” Collins v. N.Y.C. Transit Auth., 305 F.3d 113,
118 (2d Cir. 2002). The plaintiff bears the burden of proving a prima facie case by a
preponderance of the evidence. Id. “The burden of establishing a prima facie case is not
onerous, and has been frequently described as minimal.” Norton v. Sam’s Club, 145 F.3d 114,
118 (2d Cir. 1998). Once a plaintiff presents a prima facie case, the defendant then bears the
burden of articulating a legitimate, non-discriminatory reason for the employment
action. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). If a defendant meets this
burden, the plaintiff must point to evidence that would be sufficient to permit a rational
factfinder to conclude the employer’s explanation is merely a pretext for actual discrimination.
Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981).
A.

Prima Facie Case

As a threshold matter, it is undisputed that (i) plaintiff is a member of a Title VII
protected class; (ii) plaintiff was qualified for her position; and (iii) her suspension and
termination constitute adverse employment actions.
Defendant contends plaintiff has not met the fourth prima facie element because there is
no evidence to support an inference that her termination was due to her race.
The Court agrees as to plaintiff’s termination, but finds that plaintiff’s suspension—
which also constitutes an adverse employment action—does support an inference of
discrimination.

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A plaintiff satisfies the fourth prong of a prima facie case of discrimination by
demonstrating “circumstances surrounding that action giving rise to an inference of
discrimination.” Collins v. N.Y.C. Transit Auth., 305 F.3d at 118. “One way to create an
inference of discrimination is to show that similarly situated employees, outside plaintiff’s
protected class, were treated preferentially.” Campbell v. Alliance Nat. Inc., 107 F. Supp. 2d
234, 244 (S.D.N.Y. 2020). To qualify as similarly situated, the employees must be “subject to
the same performance evaluation and discipline standards” and must have “engaged in
comparable conduct.” Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493–94 (2d Cir. 2010). “The
standard for comparing conduct requires a reasonably close resemblance of the facts and
circumstances of plaintiff’s and comparator’s cases, rather than a showing that both cases are
identical.” Id.
The parties focus on whether plaintiff’s termination following a recommendation by the
Section 75 hearing officer gives rise to an inference of discrimination. As defendant argues, this
termination following the recommendation of a neutral hearing officer is a legitimate
justification for plaintiff’s termination, and plaintiff has pointed to no evidence that the hearing
officer’s justification was pretextual.
However, the decision to suspend plaintiff without pay and recommend her for Section
75 charges, which was made at least in part by Southerton, supports an inference of
discrimination. A suspension without pay is an adverse employment action under Title VII.
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001). Moreover,
plaintiff’s initial suspension (with pay) and the decision to bring civil service charges against her
(resulting in her suspension without pay) arose in the aftermath of the 2020 Incident, in which
only the Black and Hispanic nurses were disciplined, and the white nurse was not, despite

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evidence the white nurse had engaged in conduct of “comparable seriousness.” McDonnell
Douglas Corp. v. Green, 411 U.S. at 804. Defendant asserts there is “no evidence in the record”
to support an inference of discrimination, but notably fails to address this disciplinary
discrepancy following the 2020 Incident.
Therefore, viewing the facts in the light most favorable to the non-moving party, plaintiff
has met her “minimal” burden of establishing a prima facie case of discrimination under Title
VII. See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (inference of
discrimination arises when individual of one race is treated less favorably than those of another
race who are similarly situated).
B.

Non-Discriminatory Reason for Plaintiff’s Suspension

At the second step of the McDonnell Douglas analysis, defendant bears the burden of
proffering a legitimate, non-discriminatory reason for plaintiff’s suspension. Plaintiff was
suspended with pay shortly after the 2020 Incident and was suspended without pay in April 2020
after disciplinary charges were filed against her.
Defendant argues that plaintiff’s disciplinary record constitutes a legitimate, nondiscriminatory reason for the adverse employment actions. Following plaintiff’s hearing on the
Section 75 charges, plaintiff was found to have violated the County’s policies against workplace
violence and harassment and was terminated shortly thereafter. It is well settled that
“[v]iolations of employer policy are legitimate, nondiscriminatory reasons for adverse actions.”
Smith v. N.Y. Presbyterian Hosp., 440 F. Supp. 3d 303, 335 (S.D.N.Y. 2020) (citing Shumway
v. United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir. 1997)). Although defendant principally
argues that plaintiff’s policy violation justifies her termination, it also contends plaintiff “was
treated differently because of her actions.” (Doc. #80 at ECF 11). To the extent defendant

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argues plaintiff’s suspension was due to her involvement in the 2020 Incident, and that such
actions violated employer policy, defendant has proffered a legitimate, non-discriminatory
reason for plaintiff’s suspension.
C.

Pretext

At the third step of the McDonnell Douglas analysis, a plaintiff must present “sufficient
admissible evidence from which a rational finder of fact could infer that more likely than not she
was the victim of intentional discrimination.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 447 (2d
Cir. 1999). A plaintiff “is not required to show that the employer’s proffered reasons were false
or played no role in the employment decision, but only that they were not the only reasons and
that the prohibited factor was at least one of the motivating factors.” Cronin v. Aetna Life Ins.
Co., 46 F.3d 196, 203 (2d Cir. 1995). Plaintiff must “produce admissible evidence showing
circumstances that would be sufficient to permit a rational finder of fact to infer that the
defendant’s employment decision was more likely than not based in whole or in part on
discrimination.” Bart v. Golub Corp., 96 F.4th 566, 576 (2d Cir. 2024) (emphasis added).
“In short, the question becomes whether the evidence, taken as a whole, supports a
sufficient rational inference of discrimination.” Weinstock v. Columbia Univ., 224 F.3d at 42.
Indeed, “a plaintiff’s evidence at the third step of the McDonnell Douglas analysis must be
viewed as a whole rather than in a piecemeal fashion.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d
70, 76 (2d Cir. 2016).
Although plaintiff was suspended following her involvement in the 2020 Incident, she
has adduced sufficient—if thin—evidence to create an issue of material fact as to whether the
County’s reason for her suspension was pretextual. To satisfy the burden of showing pretext on
summary judgment, a plaintiff “need only show that the employer’s stated reason—even if true

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or factually accurate—was not the real reason, in the sense that it was not the entire reason due to
a coexisting impermissible consideration.” Bart v. Golub Corp., 96 F.4th at 575. Here, plaintiff
has presented enough evidence of discriminatory practices at the Care Center, including
derogatory remarks about plaintiff’s appearance and behavior, discriminatory treatment by white
employees, and preferential treatment of white nurses, that predate the incidents underlying her
suspension.
Viewed in isolation, the derogatory comments—including Southerton’s comments that
plaintiff acted “ghetto” and implications that she disliked plaintiff’s hair because it was not
“real” hair (Pl. Dep. at 22–23, 30)—could be considered “stray remarks,” which by themselves
“do not constitute sufficient evidence to make out a case of employment discrimination.”
Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). However, because these remarks
were not the only indicia of discrimination, they must be considered in the context of other
evidence of discriminatory treatment by plaintiff’s supervisors and other nurses. Id. (“When
other indicia of discrimination are properly presented, the remarks can no longer be deemed
stray, and the jury has a right to conclude that they bear a more ominous significance.”). Given
the evidence of discriminatory practices prior to the incidents defendant argues predicated
plaintiff’s suspension, a reasonable jury could find defendant’s proffered reason for suspending
plaintiff—namely, her disciplinary record—was not the entire reason for plaintiff’s suspension.
Moreover, discriminatory intent could be inferred because Southerton, together with
other County personnel, decided to suspend plaintiff and to pursue Section 75 charges against
her. “Where the adverse decision is made by two or more persons, some of whom are motivated
by discrimination, while others are motivated by other reasons,” a reasonable jury may find
discriminatory intent despite an employer’s legitimate, non-discriminatory explanation. Henry v.

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Wyeth Pharms., Inc., 616 F.3d 134, 157 (2d Cir. 2001). Indeed, “a Title VII plaintiff is entitled
to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker,
so long as the individual shown to have the impermissible bias played a meaningful role in the
process.” Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008). Here, a reasonable jury
could determine that Southerton was motivated by an impermissible bias and played a
“meaningful role” in plaintiff’s suspension, despite the involvement of other County personnel.
See Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999) (“We recognize that the
impermissible bias of a single individual at any stage of the process may taint the ultimate
employment decision in violation of Title VII.”).
Finally, in the report and recommendation following the Section 75 Hearing, the hearing
officer observed that plaintiff “brought up several allegations of discrimination against her” at
the Care Center. (Doc. #79-5 at ECF 5). Although the hearing officer concluded the allegations
were relevant to the proceeding, she did not hear testimony or view any evidence substantiating
the discrimination claims, aside from plaintiff’s own testimony. Therefore, the Section 75
Hearing did not include “substantial evidence” of plaintiff’s discrimination allegations such that
the hearing officer’s conclusion is “probative of the absence of discriminatory intent” in the
adverse employment action. Collins v. N.Y.C. Transit Auth., 305 F.3d at 119. Together with the
evidence of other race-based discrimination, a reasonable jury could conclude defendant’s
proffered reason for suspending plaintiff was pretextual, and that plaintiff was suspended, at least
in part, because of her race. See Holcomb v. Iona Coll., 521 F.3d 130, 141–42 (2d Cir. 2008).
To the extent defendant argues plaintiff’s own testimony cannot create a genuine issue of
material fact as to pretext, the Court disagrees. Unless a plaintiff’s testimony is contradictory,
incomplete, self-serving, or so replete with inconsistencies that no reasonable jury could credit it,

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the testimony may be used to create a genuine issue of material fact. See Bellamy v. City of
New York, 914 F.3d 727, 746 (2d Cir. 2019). Here, plaintiff’s deposition testimony is not so
replete with inconsistencies and improbabilities that a reasonable jury could not credit it. Thus,
plaintiff’s testimony may be used to create a genuine issue of fact. See Verne v. N.Y.C. Dep’t of
Educ., 697 F. Supp. 3d 30, 50 n.6 (S.D.N.Y. 2023).
In sum, viewing the evidence as a whole and construing the facts in plaintiff’s favor,
there are several genuine issues of material fact that are central to the County’s motivation in
suspending plaintiff. Accordingly, summary judgment on plaintiff’s discrimination claim is
inappropriate.
CONCLUSION
The motion for summary judgment is DENIED.
Plaintiff’s race discrimination claim under Title VII against the County with respect to
her suspension survives, but her race discrimination claim under Title VII with respect to her
termination is dismissed.
The Court will conduct a case management conference on December 18, 2024, at 10:00
a.m., to be held at the White Plains courthouse, Courtroom 620, at which time counsel shall be
prepared to discuss, among other things, the setting of a trial date and a schedule for pretrial
submissions, as well as what good faith efforts they have made and will continue to make to
settle this case.
In addition, by December 9, 2024, the parties shall submit a stipulation of voluntary
dismissal as to plaintiff’s Monell claim against the County.

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The Clerk is instructed to terminate the motion. (Docs. ##78, 79).
Dated: November 25, 2024
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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