Danials-Kirisits v. Unified Court System et al
Filing
123
DECISION AND ORDER GRANTING Defendant's 96 Motion for Summary Judgment; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 4/21/2013. - CLERK TO FOLLOW UP - (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ELIZABETH DANIALS-KIRISITS,
Plaintiff,
v.
DECISION AND ORDER
05-CV-800S
NEW YORK STATE OFFICE OF COURT
ADMINISTRATION,
Defendant.
I. INTRODUCTION
Plaintiff Elizabeth Danials-Kirisits commenced this action in November 2005 alleging
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and New
York State Human Rights Law, N.Y. Executive Law §§ 290 et seq. by her employer,
Defendant New York State Office of Court Administration. Presently before the Court is
Defendant’s Motion for Summary Judgment dismissing the Second Amended Complaint.
For the reasons discussed below, this Court finds the matter fully briefed and oral
argument unnecessary, and concludes that Defendant's motion should be granted.
II. BACKGROUND
Plaintiff was employed by Defendant in Buffalo City Court from approximately 1977
until her termination in December 2005. (Decl. of Plaintiff Elizabeth Danials-Kirisits ¶¶ 18,
124, Docket No. 117; Decl. of Marie Villari ¶¶ 4-5, Docket No. 99.) Following her
complaints to Defendant’s gender bias committee and the New York State Division of
Human Rights, Plaintiff was interviewed in 1990 by the New York State Commission on
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Judicial Conduct regarding sexual harassment by then-Judge Anthony LoRusso. (Pl’s Decl.
¶¶ 22-25.) After LoRusso was formally removed from his position in 1992, Plaintiff
commenced an action in this Court alleging discrimination on the basis of sex and
retaliatory treatment by Defendant and former Judge LoRusso. (Id. ¶¶ 27-30.) That action
was settled in 1997. (Id. ¶ 31.) In the present action, Plaintiff alleges, among other things,
that the discriminatory and retaliatory treatment continued after the settlement of the district
court action.(Id. ¶ 32.)
Among Plaintiff’s allegations are assertions that she was twice passed over for
promotion to Deputy Chief Clerk, once in 1999 and again in 2003, in retaliation for her
complaints against LoRusso. (Id. ¶¶ 36-44; 58-65.) The first person who was promoted
over Plaintiff in 1999 was a woman who had also testified against LoRusso in 1990. (Id.
¶¶ 25-26, 44; Pl’s Dep at 80-81, Docket No. 116-2.) Further, the Chief Clerk in both 1999
and 2003 also testified against LoRusso. (Pl’s Decl. ¶¶ 26, 38-43; Decl. of Sharon Thomas
¶¶ 2-4, 53-54, Docket No. 108.) Plaintiff nonetheless alleges that Kim Delmont, who was
promoted to Deputy Chief Clerk over her in 2003, “engaged in a campaign to isolate,
ostracize, undermine, discredit, and ultimately discharge [Plaintiff] from employment,
because of [her] complaints of and opposition to ongoing and continued harassment,
discrimination and retaliation by [Defendant], and retaliation for [her] complaints against
former Judge LoRusso.” (Pl’s Decl. ¶¶ 59-66.) It is Plaintiff’s belief that Delmont is a
protégé of a close friend of Judge LoRusso. (Id. ¶ 64.)
Plaintiff alleges that, in February 2005, “Delmont created false documentation of
unfounded allegations of poor performance by me over an eighteen month period, which
she then used to prepare and present at a performance evaluation.” (Pl’s Decl. ¶ 94.) The
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parties agree that this is the only negative evaluation Plaintiff received in the years
following the LoRusso complaint, and that Plaintiff has received satisfactory evaluations
since her first formal evaluation in January 1994. (Pl’s Decl. ¶ 99; Villari Decl. ¶¶ 6-16.)
What is in dispute is Plaintiff’s reaction to this February 2005 evaluation. Defendant
asserts that Plaintiff was interruptive during the evaluation meeting and abruptly left prior
to its conclusion, only to be later witnessed using excessive profanity and otherwise acting
inappropriately in public areas of the court. (Decl. of Andrew B. Isenberg ¶¶ 6-7 Ex. A,
Docket No. 98; Transcript of Pl’s September 2005 Disciplinary Hearing (“Hrg Tr”) at 13-20,
63-65, Decl. of John J. Sullivan, Esq., Ex. C, Docket No. 100.) Plaintiff vehemently denies
yelling, raising her voice, or using profanity, and asserts that others were ill-behaved
toward her at that time. (Pl’s Decl. ¶¶ 99-107.) Plaintiff was suspended with pay four days
later. (Pl’s Decl. ¶ 111; Isenberg Decl. ¶¶ 11-12 Ex. B.)
Plaintiff filed a Charge of Discrimination with the New York State Division of Human
Rights and the Equal Employment Opportunity Commission (“EEOC”) in April 2005 alleging
that the unsatisfactory performance evaluation and suspension were in retaliation for her
having filed the prior discrimination charge against LoRusso in 1990. (Decl. of Kathleen
Kaczor, Esq. Ex. C, Docket No. 110.; Pl’s Decl. ¶ 5 .) That charge was amended in May
2005 to reflect the correct address for Defendant. (Pl’s Decl. ¶¶ 6-7; Kaczor Decl. Ex. C.)
In June 2005, Plaintiff was given notice and specification of the charges against her,
as required by the governing collective bargaining agreement. (Sullivan Decl. ¶ 4, Ex. A.)
Specifically, Plaintiff was charged with inappropriate and insubordinate behavior based on
her conduct on February 18, 2005; failure to properly update a “quarterly DMV scofflaw
report;” failure to appropriately update a computer database; insubordination based on a
3
refusal to reschedule four weeks of criminal cases in May 2004; and violation of
Defendant’s internet usage policy from May 2004 to February 2005. (Sullivan Decl. ¶ 5,
Ex. A.) A hearing was held in September 2005 before a hearing officer from a different
judicial district, at which Plaintiff was represented by counsel and both sides presented
witnesses. (Id. ¶ 7-11, Ex. C.) The hearing officer sustained all charges with the exception
of the allegation of direct subordination related to Plaintiff’s failure to reschedule. (Id. Ex.
F.) The hearing officer recommended that Plaintiff be terminated as a result. (Id. Ex. F at
19, Docket Nos. 106-7.) This report and recommendation was then reviewed by the
Honorable Jan H. Plumadore, Deputy Chief Administrative Judge for Courts Outside New
York City and accepted on November 28, 2005. (Isenberg Decl. Ex. C.) Plaintiff was
terminated from her position effective December 2, 2005. (Id.; Pl’s Decl. ¶ 124.)
In January 2006, Plaintiff filed an additional EEOC charge alleging that she was
improperly terminated in retaliation for her prior complaints of employment discrimination.
(Kaczor Decl. Ex. D.) The EEOC determined that there was insufficient evidence that a
violation had occurred, and issued Plaintiff a right to sue letter on August 11, 2005. (Id. Ex.
E.) Plaintiff commenced the instant action in this Court on November 7, 2005.
III. DISCUSSION
Summary judgment is appropriate, even in a discrimination case, “where there is no
genuine issue of material fact to be tried, and the facts as to which there is no such issue
warrant the entry of judgment for the moving party as a matter of law.” Kaytor v. Elec. Boat
Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Weinstock v. Columbia Univ., 224
F.3d 33, 41 (2d Cir. 2000), cert denied, 540 U.S. 811 (2003). A court’s function on a
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summary judgment motion “is not to resolve disputed questions of fact but only to
determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor, 609
F.3d at 545. “A dispute regarding a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’ ” Weinstock, 224 F.3d at
41 (quoting Anderson, 477 U.S. at 248). Further, a court must “construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352
F.3d 775, 780 (2d Cir. 2003).
A.
State Law Claims
Defendant correctly contends that Plaintiff’s second and fourth causes of action,
which allege violations of New York State Human Rights Law (“NYSHRL”) based on gender
discrimination, age discrimination,1 and improper retaliation, must be dismissed for lack of
subject matter jurisdiction. (Def’s Mem of Law at 3-4, Docket No. 112.) “[A]s a general
rule, state governments [and their agencies] may not be sued in federal court unless they
have waived their Eleventh Amendment immunity” or there has been a valid abrogation of
that immunity by Congress. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466
F.3d 232, 236 (2d Cir.2006) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 618-19, 122
S. Ct. 1640, 152 L. Ed. 2d 806 (2002)); see Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 99, 104 S. Ct. 900, 79 L. Ed. 67 (1984). Defendant is an administrative arm
of the judicial branch of the New York state government, and it is therefore immune from
1
Although Plaintiff’s Second Am ended Com plaint raises an age discrim ination claim only under
state law, Defendant would also be im m une from suit based on an alleged violation of the Age
Discrim ination in Em ploym ent Act (the “ADEA”), 29 U.S.C. §§ 621 et seq.. Kim el v. Florida Bd. of
Regents, 528 U.S. 62, 92, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000) (“the ADEA does not validly abrogate
the States’ sovereign im m unity”).
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suit in federal court for alleged violations of NYSHRL absent waiver. Canales-Jacobs v.
N.Y.S. Office of Court Admin., 640 F. Supp. 2d 482, 498 (S.D.N.Y. 2009); Jallow v. N.Y.S.
Office of Court Admin., No 10 Civ. 8575, 2012 WL 4793871, *1 (S.D.N.Y., Oct 5, 2012).
These causes of action are therefore dismissed.
B.
Timely Exhaustion of Remedies
Plaintiff’s remaining two causes of action allege gender discrimination and improper
retaliation in violation of Title VII. Defendant argues that Plaintiff failed to exhaust
administrative remedies with respect to the alleged gender discrimination. (Def’s Mem of
Law at 4-8.) Defendant further argues that Plaintiff’s claim of a decades-long campaign
of retaliatory harassment is not reasonably related to the specific limited allegations of
retaliation contained in Plaintiff’s EEOC claims, and therefore this claim is also not properly
exhausted. (Id. at 8-11.) Plaintiff responds that the conduct complained of in her complaint
and subsequent amended complaints falls within the scope of the EEOC investigation, and
therefore that conduct is reasonably related to the administrative charge. (Pl’s Mem of Law
at 28-31.)
The failure to first present a claim to the EEOC or a state administrative agency may
result in dismissal where the new claim is not reasonably related to the charge before the
administrative agency. See Butts v. City of New York Dep't of Hous. Pres. & Dev., 990
F.2d 1397, 1401 (2d Cir.1993), superseded by statute on other grounds as stated in,
Hawkins v. 1115 Legal Servs. Care, 163 F.3d 684, 693 (2d Cir.1998); Miller v. Int’l Tel. &
Tel. Corp., 755 F.2d 20, 25-26 (2d Cir. 1985), cert denied, 474 U.S. 851 (1985);
Ghadersohi v. Roswell Park Inst., No. 10-CV-143S, 2011 WL 4572539, *2-3 (W.D.N.Y.
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Sept. 30, 2011); see generally McPherson v. New York City Dep’t of Educ., 457 F.3d 211,
214 (2d Cir. 2006) (a right to sue letter enables a private suit only where issued in
connection with a timely administrative charge); Francis v. City of New York, 235 F.3d 763,
767-68 (2d Cir. 2000) (exhaustion requirement is not jurisdictional, but subject to waiver,
estoppel and equitable tolling). The recognized exceptions to the exhaustion requirement
include a previously unraised claim that falls within the “scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination;” a charge
of retaliation for the filing of the EEOC complaint; and “incidents of discrimination carried
out in precisely the same manner alleged in the EEOC charge.” Murray v. Bd. of Educ. of
City of New York, 984 F. Supp. 169, 175-76 (S.D.N.Y. 1997) (quoting Butts, 990 F.2d at
1403).
Plaintiff’s first relevant EEOC complaint was filed in April 2005 and amended in May
of that year. (Compl., Docket No. 1 at 8-9; Kaczor Decl. Ex C.) As amended, the EEOC
charge alleges:
On about 1990 I filed a charge of discrimination . . . with the New York State
Division of Human Rights (NYSDHR). I protested employment practices
prohibited by employment discrimination statutes. The case was settled in
1997.
On about February 18, 2005, I received an unsatisfactory performance
evaluation that I disputed because it was bogus and based on lies. All my
evaluations prior were satisfactory. The individual who evaluated me most
recently is a friend of Judge LoRusso, whom I complained about in the
charge of discrimination I filed in the past. On about February 22, 2005 I was
suspended for no reason. Ms Delmont has a personal [and] professional
relationship with LoRusso’s friend, Judge Frank Sedita [and] his nephew
Jos[eph] Sedita, Esq. who also represented LoRusso . . . and lost in his
removal during the State Comm. on Judicial Cond[uct] trial.
I believe that I received an unsatisfactory performance evaluation and was
suspended because of my age [56] . . . [i]n willful violation of [t]he Age
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Discrimination in Employment Act and gender, Female, in willful violation of
Title VII of the Civil Rights Act, as amended. I further believe that the poor
evaluation and suspension were in retaliation for having filed a prior
NYSDHR charge complaining about employment discrimination, in willful
violation of Title VII of the Civil Rights Act.
(Kaczor Decl. Ex. C; see Pl’s Decl. ¶¶ 5-6, 64.) Plaintiff filed a second EEOC charge in
January 2006 alleging that she was discharged on December 2, 2005 in retaliation for filing
“a prior EEOC charge[] complaining about employment discrimination in willful violation of
Title VII of the Civil Rights Act of 1964, as amended and the Age Discrimination in
Employment Act, as amended.” (Kaczor Decl. Ex. D.)
Initially, Defendant correctly argues that the cursory references to gender and age
in these charges, unsupported by any factual detail, are insufficient to satisfy the
exhaustion requirement. “While precise pleading is not required for purposes of
exhaustion, a complete absence of specificity defeats a plaintiff's subsequent claims.”
Abram v. City of Buffalo, No. 04-CV-441S, 2011 WL 334297, *6 (citing Deravin v. Kerik,
335 F.3d 195, 202 (2d Cir.2003)); DiProjetto v. Morris Protective Serv., 489 F. Supp. 2d
305, 308–9 (W.D.N.Y. 2007) (absent related factual allegations, merely checking a box on
a form discrimination complaint is not sufficient to state a plausible claim under Title VII or
the ADA), aff’d, 306 Fed. Appx. 687 (2d Cir. 2009). “Were [the courts] to permit such
vague, general allegations, quite incapable of inviting a meaningful EEOC response, to
define the scope of the EEOC investigation and thereby predicate subsequent claims in
the federal lawsuit, such allegations would become routine boilerplate and Title VII's
investigatory and mediation goals would be defeated.” Butts, 990 F.2d at 1403 (allegation
that plaintiff had been the consistent target of discriminatory practices and treatment from
October 1987 to present too vague to serve as predicate for allegations in the complaint);
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see Samborski v. West Valley Nuclear Servs. Co., No. 99-CV-213E, 2002 WL 1477610,
*4 (W.D.N.Y. 2002) (allegations of “sexual harassment” that created a “hostile
environment” are boilerplate terms that fail to inform the EEOC of any specific instances
of harassment); Murray, 984 F. Supp. at 176 (mere reference to a denial of promotional
opportunities based on race and sex insufficient to satisfy exhaustion requirement). Thus,
any gender discrimination claims are also dismissed due to her failure to exhaust
administrative remedies.
Remaining is Plaintiff’s third cause of action for retaliatory harassment. The May
2005 amended EEOC charge references a February 2005 retaliatory unfavorable
performance review and related suspension, and the December 2005 retaliatory
termination. Plaintiff’s federal complaint, however, is far more expansive in its allegations.
In her Second Amended Complaint, Plaintiff alleges, among other things, that she was
passed over for promotion in 1999 and again in 2003 in favor of younger, less qualified
candidates in retaliation for her earlier complaints against Judge LoRusso (¶¶ 30-51). It
is further alleged that Defendant’s employees engaged in a retaliatory campaign against
Plaintiff between January 2004 and March 2005 “in retaliation for her efforts to oppose
illegal discrimination from 1990 to 2005.” (Sec. Am. Compl. ¶¶ 54-70.)
Notably, all of the additional specific instances of misconduct that Plaintiff now
argues are reasonably related to the claims in her EEOC charges occurred prior to the
filing of those charges in 2005 and 2006. As recognized in Butts, a district court may “hear
Title VII claims that either are included in an EEOC charge or are based on conduct
subsequent to the EEOC charge which is ‘reasonably related’ to that alleged in the EEOC
charge.” 990 F.2d at 1401 (emphasis added); see Alfano v. Costello, 294 F.3d 365, 381
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(2d Cir. 2002) (same).
Thus, “a ‘reasonably related’ claim applies only to alleged
discriminatory conduct that occurred after the EEOC charge is filed.” Townsend v. Exhange
Ins. Co., 196 F. Supp. 2d 300, 313 (W.D.N.Y. 2002); Lester v. M&M Knopf Auto Parts, No.
04-CV-850S, 2006 WL 2806465, *7 (W.D.N.Y. Sept. 28, 2006) (additional discriminatory
layoff claims dismissed as unexhausted because they predated, but were not included in,
plaintiff’s EEOC charge); Samimy v. Cornell Univ., 961 F. Supp. 489, 493-94 (W.D.N.Y.
1997) (similar). “It was [Plaintiff’s] duty to include all relevant alleged discriminatory
conduct when [s]he filed the EEOC charge.” Townsend, 196 F. Supp. 2d at 313.
Moreover, a common sense reading of Plaintiff’s EEOC charges limits her
allegations to the three specific acts of retaliation alleged: the unsatisfactory performance
evaluation on February 18, 2005, the related suspension on February 22, 2005, and her
termination on or about December 2, 2005. (Kaczor Decl. Ex. C, D.) “Given the specificity
of the charge[s], a reasonable EEOC investigation would begin and end with this review.”
Samimy, 961 F. Supp at 492 (court declined to interpret EEOC charge of discrimination in
a single 1992 performance review to be reasonably related to additional or continuing
alleged acts of discrimination). Plaintiff’s EEOC charges of three discrete incidents cannot
“reasonably be expected to blossom into an investigation covering allegations of unrelated
misconduct . . . dating back several years.” Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d
Cir. 2008).
Finally, the majority of Plaintiff’s additional claims are untimely. To be timely, an
EEOC complaint must “be filed ... within 300 days of the alleged discriminatory act.”
McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir.2010); see 42 U.S.C. §
2000e–5(e)(1) (Title VII); Clarke v. Roslyn Union Sch. Dist., No. 11-CV-2957, 2012 WL
10
2916759, *5 (E.D.N.Y. July 17, 2012). Thus, even if Plaintiff’s EEOC complaint had been
more detailed, those claims based on conduct occurring more than 300 days prior to April
21, 2005 would still be barred.
C.
Merits of Plaintiff’s Retaliation Claims
Remaining before this Court is Plaintiff’s third cause of action alleging retaliation in
violation of Title VII, specifically the claims related to the unsatisfactory performance
evaluation on February 18, 2005, the suspension on February 22, 2005, and her
termination on or about December 2, 2005.
Title VII makes it unlawful for an employer to discriminate against an employee
“because he [or she] has opposed any practice made an unlawful employment practice by
this subchapter, or because he [or she] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e-3(a). Retaliation claims are subject to the burden-shifting
analysis of McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36
L. Ed. 668 (1973); see Kaytor, 609 F.3d at 552. Plaintiff must first establish a prima facie
case by showing that (1) she participated in an activity protected by Title VII; (2) her
participation was known to Defendant; (3) Defendant thereafter subjected Plaintiff to a
materially adverse employment action; and (4) there was a causal connection between the
protected activity and the adverse employment action. Kaytor, 609 F.3d at 552. Although
this initial burden is minimal, Plaintiff must nonetheless “offer[] evidence adequate to ‘raise[
] an inference of discrimination.’ ” Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir. 1985)
(quoting Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S. Ct. 2943, 57 L. Ed. 2d
957 (1978)), cert denied, 474 U.S. 829 (1985); see Gordon v. New York City Bd. of Educ.,
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232 F.3d 111, 116 (2d Cir. 2000) (whether plaintiff meets minimal burden is a initial
question for the court, not the jury). An adverse employment action alone is insufficient to
raise such an inference. “[A]n employer may fire an employee for a good reason, bad
reason, a reason based on erroneous facts, or no reason at all, so long as its action is not
based on a discriminatory reason.” Valentine v. Standard & Poor’s, 50 F. Supp. 2d 262,
290 (S.D.N.Y. 1999), aff’d, 205 F3d 1327 (2d Cir. 2000).
Plaintiff contends that on February 18, 2005 she was given an unsatisfactory
performance evaluation based on false documentation created by her supervisor Kim
Delmont, and that she was improperly suspended less than a week later as a result. (Sec.
Am. Compl. ¶¶ 48,59-63; Pl’s Decl. ¶¶ 94, 111.) Plaintiff alleges that “Delmont was a
protégé of Judge Frank Sedita, who was a close friend of former Judge Lo Russo, and the
uncle of Joseph Sedita, who represented former Judge LoRusso before the Judicial
Conduct Commission.” (Sec. Am. Compl. ¶¶ 50-51, Pl’s Decl. ¶ 64.) Because of this,
Delmont allegedly engaged in a campaign to isolate, discredit, and ultimately terminate
Plaintiff “all in retaliation for Plaintiff’s complaints against former Judge Lo Russo.” (Sec.
Am. Compl. ¶¶ 50-51, Pl’s Decl. ¶ 66.) In her declaration, Plaintiff asserts that she filed
“several complaints of gender bias” with Defendant’s Gender Bias Committee between
1997 and 2002 “regarding harassing treatment [she] was receiving relative to former Judge
LoRusso.” (Pl’s Decl. ¶¶ 33, 50-51, 55-57.) The most recent complaints are a March 2004
discrimination claim filed with Defendant’s Inspector General and an April 2004 grievance,
both of which similarly alleged that Delmont was engaging in hostile and discriminatory
tactics in retaliation for the LoRusso case. (Pl’s Decl. ¶¶ 80, 86, Exs G, H.)
Defendant correctly argues that Plaintiff failed to establish a prima facie case
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because there is insufficient evidence to raise an inference of retaliatory intent behind the
evaluation, suspension, or termination. Proof that an adverse employment action was
caused by a retaliatory animus may be demonstrated either: “(1) indirectly, by showing that
the protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in
similar conduct, or (2) directly, through evidence of retaliatory animus directed against the
plaintiff by the defendant.” Gordon, 232 F.3d at 117.
Initially, there is no direct evidence sufficient to raise an inference of retaliatory
animus. Plaintiff generally asserts that Delmont has “brought up [her] past problems with
Anthony P. LoRusso.” (Pl’s Decl ¶¶ 83, 86 Ex G.) In the absence of more specific factual
allegations, however, there is “no direct evidence of a retaliatory motive for [Plaintiff’s]
termination aside from her own conclusory allegations, which are plainly insufficient to
defeat [Defendant’s] motion for summary judgment.” Woods v. Enlarged City School Dist.
of Newburgh, 473 F. Supp. 2d 498, 528 (S.D.N.Y. 2007), aff’d, 288 Fed App’x 757 (2d Cir.
2008). Notably, the February 2005 evaluation was prepared by Chief Clerk Sharon
Thomas, albeit after discussion with Delmont. (Decl of Marie Villari ¶ 19 Ex I; Hrg. Tr. at
37.) Plaintiff even referenced the evaluation at her disciplinary hearing, testifying that
“Sharon conducted it, not Kim [Delmont].” (Hrg. Tr. at 151, 334).) Further, in addition to
being Deputy Chief Delmont’s supervisor, Thomas also was a witness against LoRusso
in 1990. (Thomas Decl. ¶¶ 4, 14-15; Pl’s Decl ¶ 26, Pl’s Dep. at 77-78, 80, Docket No. 1162.)
The February 2005 evaluation and subsequent suspension are also too attenuated
from Plaintiff’s last reported grievance to raise an inference of retaliatory intent. By her
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own admission, Plaintiff’s last grievance claiming that Delmont engaged in discriminatory
conduct was filed in April 2004, almost a year prior to the unfavorable evaluation she now
claims was retaliatory. (Pl’s Decl ¶ 80 Ex G.) The Second Circuit “has not drawn a bright
line to define the outer limits beyond which a temporal relationship is too attenuated to
establish a causal relationship between the exercise of a federal constitutional right and
an allegedly retaliatory action.” Gorman-Bakos v. Cornell Co-op Extension of Schenectady
County, 252 F.3d 545, 554 (2d Cir. 2001). Instead, the permissible inferences that may
be drawn from temporal proximity, or the lack thereof, should be considered in the context
of the particular case. Espinal v. Goord., 558 F.3d 119, 129 (2d Cir. 2009); compare
Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir.1990) (finding a lack of
evidence that an adverse action, taken three months after the plaintiff's EEOC complaint,
was in response to the plaintiff's protected activity) with Grant v. Bethlehem Steel Corp.,
622 F.2d 43, 45-46 (2d Cir.1980) (evidence of retaliatory animus found where defendant’s
failure to refer plaintiff substantial work occurred the first time plaintiff became available for
work eight months after EEOC complaint). An inference of causation may be defeated “(1)
if the allegedly retaliatory discharge took place at a temporal remove from the protected
activity; or (2) if there was an intervening causal event that occurred between the protected
activity and the allegedly retaliatory discharge.” Yarde v. Good Samaritan Hosp., 360 F.
Supp. 2d 552, 562 (S.D.N.Y. 2005).
Here, not only was the alleged retaliatory action taken one year after Plaintiff’s last
complaint of discrimination, but it occurred approximately fifteen years after Plaintiff’s
participation in the Title VII proceeding that Plaintiff asserts is the cause of Defendant’s
retaliatory animus, and approximately eight years after the settlement of her related federal
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discrimination action. (Pl’s Decl. ¶¶ 24-25, 30-31.) See Clark County School Dist. v.
Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (recognizing
that a prima facie case of retaliation based on mere temporal proximity requires that this
proximity be very close); Yarde, 360 F. Supp. 2d at 562 (where retaliatory animus is based
solely on temporal proximity, three months is “the outer edge” of permissible inference of
causation, and six months between protected activity and discharge “is well beyond the
time for inferring retaliatory causation”). The parties agree that the February 2005
evaluation was the first negative review Plaintiff received during this fifteen year time span
and, as noted, was given by a fellow witness in that initial sexual harassment proceeding.
See Ebanks v. Neiman Marcus Group, Inc., 414 F. Supp. 2d 320, 332-33 (S.D.N.Y. 2006)
(no evidence to support retaliation claim where plaintiff was consistently given positive
reviews after her engagement in protected activity). As such, Plaintiff has failed to meet
even the initial de minimus burden of establishing a prima facie case of causation. See
Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000), cert denied, 530 U.S.
1261 (2000)(describing a plaintiff’s initial burden as minimal). The same conclusion must
also be reached with respect to Plaintiff’s related suspension, which this Court finds
inextricably intertwined with the evaluation four days prior.
Similarly, Plaintiff’s termination occurred six months after Plaintiff’s amended May
2005 EEOC charge. In addition to being temporally and factually attenuated from Plaintiff’s
asserted basis for Defendant’s alleged retaliatory animus, the LoRusso case, Plaintiff does
not allege any additional conduct by Defendant’s employees during those six months that
would tend to support a finding of discrimination or retaliation. See Yarde, 360 F. Supp. 2d
at 562 (six months between protected activity and discharge “is well beyond the time for
15
inferring retaliatory causation” absent further factual support).
Further, Plaintiff’s
termination was the result of conduct that, although disputed, allegedly occurred prior to
that EEOC charge, and the termination was not effected until after she was afforded a full
evidentiary hearing where she was represented by counsel. Thus, after consideration of
the circumstances of this particular case, see Espinal, 558 F.3d at 129, the Court finds that
Plaintiff failed to establish a prima facie case of retaliatory animus with respect to her
unsatisfactory evaluation, suspension, or termination.
IV. CONCLUSION
Plaintiff’s claims of gender and age discrimination must be dismissed for lack of
subject matter jurisdiction, failure to exhaust administrative remedies, and untimeliness.
Plaintiff failed to establish a prima facie case with respect to the remaining claims of
retaliation, therefore Defendant’s motion for summary judgment is granted in its entirety.
V. ORDERS
IT HEREBY IS ORDERED that Defendant’s Motion for Summary Judgment (Docket
No. 96) is GRANTED in its entirety and the Second Amended Complaint is dismissed;
FURTHER, that the Clerk of the Court is directed to take the necessary steps to
close this case.
SO ORDERED.
Dated: April 21, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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