McManus v. Town of Hamburg
Filing
53
DECISION AND ORDER GRANTING Defendant's 38 Motion for Summary Judgment; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 5/25/2014. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROSE MARY McMANUS,
Plaintiff,
v.
DECISION AND ORDER
12-CV-036S
TOWN OF HAMBURG,
Defendant.
I. INTRODUCTION
Rose Mary McManus was a 15-year employee of the Town of Hamburg when she
resigned from her full-time position as a civil-service messenger in October of 2010. But
that resignation, she contends, was compelled. She claims that council members and a
supervisor on the Town Board “forced her to sign [the resignation] letter under threats of
being fired.” (Compl., ¶ 18.) She further contends that Thomas Best, Sr., now the highway
superintendent, and at one time a Town of Hamburg council member, subjected her to
“less favorable treatment than Linda Rogers,” with whom Best had had a romantic
relationship. (Id., ¶ 10.) According to McManus, this preference for Rogers, and generally
a preference for women who fit a “subservient stereotype” violated Title VII of the 1964
Civil Rights Act, which prohibits, among other things, sex-based discrimination in the
workplace. She further contends that she was retaliated against for reporting this allegedly
discriminatory behavior.
The Town of Hamburg now moves for summary judgment. For the following
reasons, that motion is granted.
II. BACKGROUND
A.
Facts
At the time of the events leading to this lawsuit, the Town of Hamburg was governed
by a board consisting of four at-large council members and a town supervisor, each elected
to four-year terms. Rose Mary McManus, a woman, was first hired by the Town of
Hamburg in 1995 as a part-time clerk in the Town Council’s office. In that role, she was
given varied assignments by various council members. She was later promoted to a fulltime position entitled “messenger.” As a messenger, she gathered and delivered the mail,
handled the payroll, took messages, and oversaw the management of supplies and
equipment for various Town departments.
According to the Town, around January of 2010 it was “in the process of
investigating options for reducing costs and increasing efficiency.” (Def.'s Stmnt., ¶ 18;
Docket No. 39.) As part of that process, it “analyzed the duties of messenger and came to
a determination that it did not warrant a full time position.” (Id., ¶ 19.) On January 7, 2010,
McManus met with Steven Walters, then (and now) the supervisor for the Town, and Kevin
Smardz, a Town councilman from 2008 until 2010. To McManus’ surprise, they told her
that her position was immediately being reduced to part time and that there was no
guarantee she would keep the job. According to the Town, however, McManus informed
Walters and Smardz that she was “looking to retire in October” anyway, and thus the
parties agreed that she could stay in her current position until she reached her 10-year
anniversary of full-time work (triggering certain retirement benefits) and that she would
resign at the end of October 2010. (See Walters Dep. Tr., 45:19 – 46:10.) McManus then
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composed and submitted a letter of resignation, dated January 7, 2010, reflecting this
agreement.1
But whatever alleged benefits McManus secured in the agreement, she later
repudiated it and requested, by a separate letter to the Town Board dated August 31,
2010, to rescind the letter of resignation; she claimed that it wasn’t valid, that she signed
it under duress. “If I did not make that deal, under pressure,” she avows, “I could have just
been fired for an illegitimate reason and left with nothing.” (McManus Aff., ¶ 62.) “I never
wanted to retire, but I was pushed into a corner by Supervisor Walters and Councilman
Smardz,” wrote McManus. (Id., ¶ 69.)
Her removal, she contends, was connected to her next complaint – that Linda
Rogers, another Town employee, was given preferential treatment by Thomas Best, the
highway superintendent for the Town. McManus lodged a formal, internal complaint to this
end on March 26, 2010. “I am filing this complaint for discrimination and harassment” she
wrote, because “I believe I have been subject to [sic] harassment and discrimination by my
supervisor’s [sic] who allow and give favorable treatment to a female employee, who has
a romantic relationship with Supervisor Thomas Best, Sr.” (Harassment Compl., Pl.’s Ex.
5; Docket No. 45-2.) She concluded, “[T]he only way for female employees to be treated
fairly and receive job benefits and advancements is to be romantically involved or a friend
of Supervisor’s Best [sic] romantic interest[,] Linda Rogers.” (Id.)
A typed first draft of this letter was edited in pen by Walters. He removed a reference to the January
7th meeting and made a change so that McManus’ retirement would be definitive; he changed “planning to
retire on October 31, 2010” to “effective October 31, 2010, I will retire.” (See Pl.’s Ex. 9.) These edits were
incorporated into a final typed version of the letter. (See Pl.’s Ex. 10.)
1
3
She made similar accusations in a complaint filed with the New York State Division
of Human Rights on September 9, 2010.
On September 16, 2010, the Board, referring to a section of the New York Code of
Rules and Regulations that prohibits a resignation from being “withdrawn, cancelled or
amended after it is delivered to the appointing authority, without the consent of the
appointing authority,” denied her request to rescind her resignation. (Walters Letter, Def.’s
Ex. DD; Docket No. 38-12.) It thus became effective on October 31, 2010.
B.
Procedural history
McManus filed her complaint in this Court on January 13, 2012. Afer discovery, the
Town of Hamburg moved for summary judgment on February 24, 2014. Briefing concluded
on May 5, 2014, at which time this Court took the motion under consideration.
III. DISCUSSION
A.
Summary judgment
Rule 56 of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” A fact is “material” only if
it “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A “genuine”
dispute exists “if the evidence is such that a reasonable jury could return a verdict for the
non-moving party.” Id. In determining whether a genuine dispute regarding a material fact
exists, the evidence and the inferences drawn from the evidence “must be viewed in the
light most favorable to the party opposing the motion.” Adickes v. S. H. Kress & Co., 398
4
U.S. 144, 158–59, 90 S. Ct.1598, 1609, 26 L. Ed. 2d 142 (1970) (internal quotations and
citation omitted).
“Only when reasonable minds could not differ as to the import of evidence is
summary judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citation
omitted). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is any
evidence in the record from which a reasonable inference could be drawn in favor of the
opposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004) (citations omitted). The function of the
court is not “to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
B.
Title VII and applicable standards
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to
“discriminate against any individual with respect to h[er] compensation, terms, conditions,
or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. §
2000e–2(a)(1). It further makes it unlawful for an employer to discriminate against an
employee “because [s]he has opposed any practice made an unlawful employment
practice by this subchapter.” 42 U.S.C. § 2000e–3(a); Danials-Kirisits v. New York State
Office of Court Admin., No. 05-CV-800S, 2013 WL 1755663, at *6 (W.D.N.Y. Apr. 24,
2013).
McManus claims that her discharge, the environment in which she worked, and
actions taken in response to her complaints of discrimination all violated Title VII. Thus,
she brings three separate causes of action: a constructive-discharge claim, a hostile-work
environment claim, and a retaliation claim.
5
Ultimately to sustain her discharge claim, McManus must show that sex was a
motivating factor in her discharge. 42 U.S.C. § 2000e–2(m).
To prevail on a claim for retaliation under Title VII, “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, which
in this context means it well might have 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, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006) (internal quotation marks omitted).
Ultimately, she must show that her complaints were a “but-for” cause of a materiallyadverse action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534, 186 L. Ed.
2d 503 (2013).
Without direct evidence of discrimination, these claims are analyzed under the
Supreme Court's familiar McDonnell Douglas burden-shifting framework. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); see also
Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004). Under that
framework, a plaintiff must first establish a prima facie case by adducing sufficient evidence
to permit a rational trier of fact to find that she is a member of a protected class; was
qualified for her position; and was subject to an adverse action suffered under
“circumstances giving rise to an inference of discrimination.” Terry v. Ashcroft, 336 F.3d
128, 138 (2d Cir. 2003); Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the
employer to offer a legitimate, non-discriminatory reason for its challenged action.
McDonnell Douglas, 411 U.S. at 802; Terry, 336 F.3d at 138. If the employer does so, the
McDonnell Douglas presumptions disappear, and the plaintiff must then set forth sufficient
6
evidence to support a reasonable inference that discrimination occurred. See James v.
N.Y. Racing Ass'n., 233 F.3d 149, 156 (2d Cir. 2000).
Finally, “to survive summary judgment on a claim of hostile work environment
harassment, a plaintiff must produce evidence that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to
alter the conditions of the victim's employment.” Whidbee v. Garzarelli Food Specialties,
Inc., 223 F.3d 62, 69 (2d Cir. 2000) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570
(2d Cir. 2000)).
C.
McManus’ claims
It is obvious to this Court that McManus has tried to recast her complaint in the face
of the Town’s motion for summary judgment. The pleadings and pre-litigation material in
this case make clear that it began as a so-called “paramour-preference” case. The
gravamen of McManus' claim – at the federal, state, and internal levels alike – was that
Thomas Best gave impermissible preference to his rumored-to-be girlfriend, Linda Rogers.
Indeed, the complaint, short on facts to begin with, alleges simply that McManus “was
subjected to less favorable treatment than Linda Rogers,” who “has been involved in a
romantic relationship with Superintendent Thomas Best.” (Compl., ¶ 10). It was specifically
“this conduct” that “created a hostile work environment for Plaintiff.” (Id.) That is the
beginning – and the end – of factual allegations that even remotely suggest McManus was
discriminated against because of her sex.
Likewise, the only allegation raising any possibility of an inference of sex-based
discrimination in the Division of Human Rights complaint reads, “Beginning in January
2010 and continuing to date, the respondent has subjected me to less favorable treatment
7
than Linda Rogers, a female employee who has a romantic relationship with
Superintendent Thomas Best, creating a hostile work environment.” (Verified NYSDHR
Compl., ¶ 3, Pl.’s Ex. 7; Docket No. 45-2.)
Her internal complaint, lodged on March 26, 2010, is no different:
I believe I have been subject [sic] to harassment and
discrimination by my supervisors who allow and give favorable
treatment to a female employee, who has a romantic
relationship with supervisor Thomas Best, Sr. This female
employee, Linda Rogers, has been allow [sic] preferential
treatment and job benefits for herself and her friends in
exchange for this romantic relationship.
(Pl.’s Ex. 5.)
To be sure, there is evidence to support this contention. Town Councilman Joseph
Collins, for example, avows that Best told him that he was forcing McManus to retire to
make room for Rogers. (Collins Aff., ¶ 16; Docket No. 45-6.) But regardless of the proof,
this claim was dead on arrival.
As the Town correctly argues, these allegations do not a Title VII claim make. The
Second Circuit has recently observed that “[o]ur Circuit has long since rejected ‘paramour
preference' claims, which depend on the proposition that ‘the phrase ‘discrimination on the
basis of sex' encompasses disparate treatment premised not on one's gender, but rather
on a romantic relationship between an employer and a person preferentially treated.” Kelly
v. Howard I. Shapiro & Associates Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir.
2013); see also DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986)
(no Title VII claim where a supervisor and employee engaged in a romantic partnership;
where supervisor established special requirement for a position solely as a pretext to
enable him to give it to that employee; and where claimants were precluded from applying
8
for the position due to the special requirement). In short, the very allegation serving as the
foundation of McManus’ complaint – that Best and others gave Rogers preferential
treatment and that this treatment led to McManus’ ouster – is not a viable Title VII claim.
It may be discrimination, but it is not discrimination based on sex. And that is the sine qua
non of a Title VII claim. See Decinto, 807 F.2d at 308 (appellees were not prejudiced
because of their sex; they were discriminated against because the supervisor preferred his
paramour).
McManus does not dispute this. Instead, she now tries to make this a “gender-plus”
case – a case about “stereotypes” and about Best's apparent preference for women who
fit his idea of what a woman should be. McManus, in her telling, is not a woman who fits
this stereotype, and was therefore squeezed out to make room for Rogers, who does.
But even if this recasting were permissible (and the Town argues vehemently that
it is not), and even if it stated a Title VII claim, there is a more fundamental problem with
McManus' case: there is no evidence to support it.
Indeed, no matter what the claim is in this case, the evidence that McManus was
discriminated against because of her sex is sorely lacking. McManus’ fact section of her
memorandum of law directs this Court to her statement of material facts, and affidavits
from her, her attorney, and Councilman Joseph Collins. None of these provide sufficient
facts to sustain a Title VII claim. A sampling follows.
In her affidavit, McManus states:
C
For those women [Best] did like, he treated them well
and did favors for them.
C
[I]n January 2008 supervisor Walters, and then[-]
Councilman Best met with me to give me more job
9
duties, and if I did not agree to perform those duties I
would be fired.
C
During that same period, he constantly told me to switch
parties so that I was on his side.
C
Other incidents included Councilman Smardz coming
into my office and yelling at me for using his name
around town.
C
In 2008, Supervisor Walters and now-Superintendent
Best bugged my office in order to find cause to get rid
of me.
(¶¶ 26, 30, 36, 37; Docket No. 45-1.)
McManus’ attorney’s affidavit provides:
C
Plaintiff made many informal, verbal complaints about
Superintendent Best, his treatment of others better than
herself, and his relationship with Ms. Rogers and fear
he wanted to replace Plaintiff with Ms. Rogers to
Councilman Collins.
C
Ryan Snyder is a connected Republican in Hamburg
and was privy to some private conversations between
Republican councilmembers. Mr. Snyder called Plaintiff
in the Spring of 2010 and told her Defendant was trying
to get rid of her, and that she was being watched so she
should be careful.
(¶¶ 24, 55; Docket No. 45-4.)
Collins’ affidavit, under the heading “harassing and disparate treatment,” provides:
C
Even before Ms. McManus was compelled to sign her
prospective resignation letter, she contacted me and
told me she feared Supervisor Walters and
Superintendent Best were going to continue to harass
her as well as retaliate against her, and that she
believed she was going to be fired.
C
I also learned that Superintendent Best, with the
assistance of Councilman Smardz and Supervisor
Walters had previously planned to fire Ms. McManus
10
and replace her with a close friend of Superintendent
Best, Linda Rogers.
C
Through further questioning, I could see a clear pattern
of harassment, retaliation, and the allowance of a
hostile work environment put in place by Town of
Hamburg Supervisor Walters, Superintendent Best, and
Councilmembers Ziegler and Smardz.
(¶¶ 10, 12, 20.)
In her statement of facts (required by Local Rule of Civil Procedure 56(a)(2)), McManus
states:
C
[I]t is [my] contention, supported by former Councilman
Joseph Collins, that Superintendent Best, with the
cooperation of Supervisor Steven Walters and
Councilman Kevin Smardz, instituted and permitted a
stereotype of women as subversive [sic]2 in the
workplace, especially those who worked for
Superintendent Best, and only rewarded those who
submitted to that workplace.
C
As stated in the memorandum of law, Plaintiff’s
Declaration, and the Collins Declaration, there has been
an ongoing hostile and harassing environment that
included discrimination and retaliation against
individuals who challenged the stereotype created by
Defendant, and Plaintiff was one of those individuals.
C
Plaintiff complained of the harassment she suffered and
witnessed but it was also common knowledge at the
Town that Superintendent Best had many controlling
relationship [sic] with women, and that he would favor
those who submitted to his control in the workplace.
This history and reputation of stereotyping women as
subservient forms the backbone of Plaintiff’s claims and
was known to many at Defendant[;] it creates additional
disputes of fact that make this case one not appropriate
for summary judgment.
This Court assumes “subversive,” referring to someone who intends to undermine an established
order, is, in this context, a malapropism for “subservient,” meaning obsequious or servile.
2
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(¶ 7; Docket No. 45.)3
There is in these documents many references to “harassment,” but noticeably
absent are any specific instances of prohibited conduct. It appears instead that McManus’
claim is based on the “common knowledge around town . . . that Mr. Best was a
womanizer” and that he was “known as a bully, a heavy drinker, and a heavy gambler.”
(McManus Aff., ¶ 23.) Or perhaps it is based on the allegation that Collins “learned that
there was a prior sexual harassment complaint and subsequent settlement due to the
harassment by Superintendent Best of a Town of Hamburg female police officer.” (Collins
Aff., ¶ 27) (emphasis in original). But aside from rumor, aside from what some people
heard of Best’s background, there is no evidence that McManus was discriminated against
because she is a woman or that her workplace was “permeated with discriminatory
intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the
conditions of [her] employment.” See Whidbee, 223 F.3d at 69. Indeed, McManus’
memorandum of law – long on argument but short on facts – is rife with conclusory
allegations unconnected to the record in this case. McManus argues, for example, that
“Plaintiff here has alleged and provided evidentiary support that she suffered an adverse
action and was subjected to many harassing actions, and forced to witness many more,
all because of her gender.” (Pl.’s Br. at 20.) Again, “Superintendent Best treated certain
females (not just Ms. Rogers) more favorably than Plaintiff and other females because they
were willing to accept his sexually hostile behavior.” (Id. at 21.) But there is no citation to
the record following these sweeping statements. And, as noted, even an independent
The final two selections come from the portion of McManus’ responsive statement of facts identified
as paragraph “A.”
3
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review of the record uncovers no support for them. So questions linger: What are these
“harassing actions”? What “sexually hostile behavior”? What did he do? When did he do
it?
Without sufficient answers to these crucial questions, McManus’ evidence is patently
insufficient to establish a prima facie case on her unlawful discharge and hostile-work
environment claims. In turn, these claims cannot withstand a motion for summary
judgment. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (quoting Anderson.,
477 U.S. at 251) (modifications omitted) (“To defeat a motion [for summary judgment],
‘there must be evidence on which the jury could reasonably find for the non-movant.’”).
****
For related – albeit somewhat different – reasons her retaliation claim also fails. To
establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) she participated
in a protected activity known to defendant; (2) an adverse action was taken against the
plaintiff; and (3) there is a causal connection between the protected activity and the
adverse action. Burlington, 548 U.S. at 70; Gregory v. Daly, 243 F.3d 687, 700 (2d Cir.
2001).
Here, McManus’ claim fails at the first prong: she did not engage in a protected
activity.
Although McManus filed two formal claims alleging that she was discriminated
against, neither of those claims “opposed any practice made an unlawful employment
practice by” Title VII.4 See 42 U.S.C. § 2000e–3(a). As set forth above, in her internal
McManus also alleges that she voiced complaints at other times. But these complaints clearly had
no association with any alleged discrimination based on sex. She complained that: (1) Best gave her more
job duties; (2) Walters “bugged” – presumably placed recording devices – in her office; (3) Best gave
4
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complaint McManus alleged that Best and others gave preference to Rogers. In her
Human Rights complaint she raised similar concerns, and further alleged that she was
retaliated against for filing the initial complaint. But, as also set forth above, this type of
discrimination does not violate Title VII.
Still, “[a]n employee's complaint may qualify as protected activity, satisfying the first
element of th[e] test, so long as the employee has a good faith, reasonable belief that the
underlying challenged actions of the employer violated the law.” Kelly, 716 F.3d at 15
(quoting Gregory, 243 F.3d at 701). But this exception does not save McManus’ claim. In
Kelly, the Second Circuit addressed a similar claim brought on remarkably similar facts. It
affirmed the district court’s dismissal of the case.
Like McManus, the plaintiff in Kelly, a woman named Gail Kelly, alleged that a
supervisor in her company was having “an illicit affair” with a subordinate. According to
Kelly, this “clandestine tryst” engendered “widespread sexual favoritism” and “created an
atmosphere in the workplace that was demeaning to women.” Id. at 13. The resemblance
preferential treatment to Rogers; and (4) Best threatened to fire her.
McManus further argues in her brief that “she complained about Mr. Best’s behavior, his status as
a womanizer, a stereotype of women as subservient, only not harassing those women who submitted to his
behavior and fit into his stereotype, his harassment of those who did not submit, and his threats of termination
directed directly towards her.” (Pl.’s Br. at 24.) To support this argument, McManus cites a portion of her
affidavit where she claims that it was “common knowledge” that Best was a womanizer and where “she was
told he had many open relationships.” (McManus Aff., ¶ 23–27.) McManus never asserts that any conduct
was directed at her and she does not identify any specific complaints she lodged because of this behavior,
or what her complaints might have consisted of. The closest she comes is stating that she “did not just tolerate
his behavior and not complain because I was a woman, which was the stereotypical role of women that he
expected within the Town.” This court has done its best to interpret this sentence. It appears that McManus
is attempting to allege that she broke the stereotype that Best desired in female employees by refusing to
keep quiet – by not “not complain[ing].” Apparently this Court is to assume, by virtue of the double negative,
that this means she did in fact complain. But the question remains: about what? This vague, unclear assertion,
lacking any specifics regarding time, date, place, or content of the complaint is clearly insufficient to constitute
protected activity. See, e.g., Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011)
(informal complaints must be sufficiently specific to make it clear that the employee is complaining about
conduct prohibited by Title VII). Attorney Sanders’ argument that this portion of McManus’ affidavit constitutes
evidence that she complained about sex-based discmination is misleading and gratuitous.
14
to McManus’ charge in this case is uncanny. In her internal complaint McManus alleged
that Best’s “wide spread [sic] favoritism communicates that the only way for female
employees to be treated fairly and receive job benefits and advancements is to be
romantically involved or a friend of . . . Linda Rogers” and that “this treatment of women
employees creates a work environment demeaning to women.”
Again like McManus, Kelly also complained about this treatment. But the Second
Circuit rejected the claim that her complaints constituted protected activity. “The success
of Kelly’s claim,” wrote the court, “would require us to endorse not only her belief that the
law of Title VII is something other than what it is, but also her apparent belief that the
definition of ‘discrimination’ is something other than what it is.” Id. at 17. In a per curium
opinion, the court continued, “We agree with the district court that Kelly has failed to allege
facts demonstrating that ‘even a legally unsophisticated employee would have a good faith,
reasonable belief that the Defendants' preferential treatment of [the paramour] constituted
discrimination against Kelly based on gender.’” Id. (quoting Kelly v. Howard I. Shapiro &
Associates Consulting Engineers, P.C., No. 11-CV-5035 ADS AKT, 2012 WL 3241402, at
*13 (E.D.N.Y. Aug. 3, 2012) (modifications omitted).
This Court is cognizant that each complaint must be read on its own terms, and that
it must assess the reasonableness of the plaintiff's belief that her complaints may qualify
as protected activity in light of the “totality of circumstances.”5 See Reed v. A.W. Lawrence
& Co., 95 F.3d 1170, 1178 (2d Cir.1996). But based on the totality of the circumstances,
5
McManus appears to suggest that the determination of whether an employee holds a ‘reasonable
belief’ that an employer's conduct is prohibited by law is always a question of fact to be determined by the trier
of fact. (See Pl.’s Br. at 23) ( “The determination of whether or not an employee holds a “reasonable belief”
as to whether or not an employer's conduct is prohibited by law is a question of fact that is to be determined
by the trier of fact based on the ‘totality of the circumstances.’”). Of course this is not so; the Second Circuit
in Kelly made that very determination on a motion to dismiss.
15
and despite passing and vague references to sex-based discrimination in her Human
Rights complaint, there can be no doubt that McManus was focused exclusively on the
preference Rogers allegedly received because of her relationship with Best. Her complaint
then could “not reasonably be believed to have resulted from the fact that [Plaintiff]
possessed the protected characteristic of womanhood.” Kelly, 716 F.3d at 17. On these
grounds, her retaliation claim must therefore be dismissed.
What is more, even if the complaints could be considered protected activity,
McManus’ claim would fail at prong three of the prima facie case. Her complaints were
lodged after all but one of the allegedly adverse actions, and therefore the complaints and
the adverse actions cannot be causally connected to each other.
McManus claims that she was forced to retire, that she was given a smaller office,
that her cell phone was revoked, that her office was “bugged,” and that her company car
was replaced with a less desirable one. But the main accusation – that her decision to
enter retirement was compelled – occurred at least as early as January 7, 2010 in a
meeting with Supervisor Walters and Councilman Smardz. At that meeting, McManus
argues, she “was left with two choices”: “agree to Defendant’s offer or have her position
reduced to part-time and have no guarantee she would be hired for it.” (Pl.’s Br. at 12.) But
her internal complaint was lodged after that date – in March of that year; and her Human
Rights complaint was submitted later still – in September. It cannot be, then, that she was
“forced to retire” because of complaints filed after the alleged duress was applied. The
same goes for her office relocation and the rescission of her cell phone. Those decisions
16
were also made in January. (See Smardz Letter; dated 1/11/10, Pl.’s Ex. 4; Docket No. 452.) Her office was “bugged” even earlier – “in 2008.” (McManus Aff., ¶ 37.)6
That leaves only the decision to deny McManus’ request to rescind her resignation,
a decision made in September 2010 after both complaints were filed. McManus attempts
to connect, through temporal proximity, this decision with her Humans Rights complaint
(made only a few days earlier) and her internal complaint (made a few months earlier). This
close proximity, she argues, is evidence that the decision was motivated by a desire to
retaliate against her. But while temporal proximity can prove critical in establishing a prima
facie case, if McManus’ version of the events is credited, the decision in September 2010
was inextricably linked to the decision many months earlier in January of 2010, where, by
her own account, she was first given the ultimatum to retire or face a demotion. The
alleged retaliatory actions therefore clearly began well before she filed any complaints. This
irrefutable fact vitiates her assertion that the decision to deny her request to rescind her
resignation was retaliatory. See, e.g., Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d
87, 95 (2d Cir. 2001) (“Where 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 discrimination does not arise.”).
Instead, the only conclusion a reasonable jury could draw from the evidence (viewed
in a light most favorable to McManus) is precisely that which she originally attempted to
It is unclear when her car was replaced. Though it does appear that it took place before she filed any
complaints. In any event, it is of no consequence. There can be no dispute that replacing one gratis car with
another – even in conjunction with the other alleged acts – does not constitute an adverse action. Tepperwien
v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (internal citation and quotation marks
omitted) (“Actions that are ‘trivial harms’ – i.e., those petty slights or minor annoyances that often take place
at work and that all employees experience – are not materially adverse.”).
6
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draw: the decisions to reduce her position to part-time, to tamper with her fringe benefits,
and to deny her request to revoke her resignation, were made – if any nefarious reason did
exist – to make room for Best’s alleged paramour, Linda Rogers. But that’s not a Title VII
claim. And even if McManus had a good faith belief that it were, there is simply not enough
evidence, especially considering the timing of the events, to support her contention that
any adverse acts would not have occurred “but for” her complaints of discrimination.
IV. CONCLUSION
Rose Mary McManus alleges that she was discriminated against because Town of
Hamburg council members gave preferential treatment to Linda Rogers, who was
purportedly having an affair with Town of Hamburg Highway Superintendent Thomas Best.
McManus clearly feels wronged by her longtime employer, and this Court is not
unsympathetic to that concern. But Title VII does not protect against all unfair treatment
in the workplace. It protects against unfair treatment based on sex. Her complaint, and
whatever evidence she has presented, falls far short of raising any genuine issue of
material fact that she was discriminated against on either this basis or because she filed
complaints. Accordingly, the Town of Hamburg’s motion for summary judgment must be
granted.
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V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion for Summary Judgment (Docket
No. 38) is GRANTED,
FURTHER, the Clerk of Court is directed to close this case.
Dated:
May 25, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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