Burgos v. Southeast Works
DECISION AND ORDER GRANTING in part and DENYING in part Defendant Southeast Works' 72 Motion for Summary Judgment. Signed by William M. Skretny, United States District Judge on 5/31/2017. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CARMEN A. BURGOS,
DECISION AND ORDER
SOUTHEAST WORKS f/k/a SOUTHEAST
COMMUNITY WORK CENTER, INC.,
Plaintiff, Carmen A. Burgos, brings this action against Defendant, Southeast
Works f/k/a Southeast Community Work Center, Inc., under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, 42 U.S.C. §1981, and New York
Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (“NYHRL”), alleging that she was
discriminated against based on her sex, age, and race. Southeast Works has moved
for summary judgment, seeking dismissal of Burgos’ claims under Federal Rule of Civil
Procedure 56. For the reasons discussed below, Southeast Works’ motion is granted in
part and denied in part.
Plaintiff Burgos is a black woman born in 1961. Defendant Southeast Works is a
not-for-profit agency that provides services for adults with developmental disabilities and
operates ten group home locations in Western New York. Southeast Works employed
The facts are derived principally from the parties’ Local Rule 56 Statements, the parties’ declarations,
and exhibits attached thereto. Only the facts necessary to the resolution of the motion are recounted
below. The facts are undisputed unless otherwise stated.
Burgos as a Residential Trainer at its group home facilities from June 5, 2008, through
May 21, 2012. Residential Trainers provide instruction, supervision, and counseling to
residents and participate in maintenance and housekeeping activities.
June 2008 through June 2009
Burgos initially held a part-time Residential Trainer position at Southeast Works’
West Payne House location. Burgos alleges that the environment at West Payne was
racially charged and sexually abusive and that her supervisors took no action when she
complained that her co-workers made racially discriminatory comments.
identifies Jennifer Tedesco and Jill Ryzda, younger white females who also worked as
Residential Trainers, as the worst offenders at West Payne. She alleges that Tedesco
and Ryzda made numerous comments that were racially offensive, including
encouraging one of the developmentally disabled clients to refer to Burgos and other
black women as “black nigger bitches.” Burgos alleges that, when she informed a
Residential Manager 2 of this behavior, he drew a picture of a black man behind bars
and gave it to the client rather than taking any action to stop the behavior. Burgos
sought a scheduling change in late 2008 to distance herself from Tedesco and Ryzda,
but alleges that she did not give the true reason for the requested change because she
Burgos further alleges that, in July 2009, Residential Manager Jessica Cosgrove
conducted a meeting at West Payne, in which Cosgrove stated that the house was
divided between white staff and black staff, and that Tedesco was causing the division.
Burgos alleges that Tedesco was disruptive during the meeting and, when Burgos
Residential Managers have direct responsibility for the group homes, including the Residential Trainers.
Residential Managers are supervised by Residential Coordinators.
complained about Tedesco’s behavior, Cosgrove said Burgos should leave.
During this period (June 2008 through June 2009), Burgos alleges both facially
neutral and discriminatory comments and actions. In addition to the examples given
above, she also alleges that:
Tedesco stated she did not want to drive a client to an appointment because
there are too many black people in Buffalo.
Another co-worker told Ryzda not to drive to Buffalo because black men would
want Ryzda because of her long blonde hair.
A male co-worker, whose hand had been dyed by a baseball mitt, told Burgos
that now he was as black as she is.
A male co-worker told Burgos to come to his house because he needs black
friends now that there is a black president.
A male co-worker rubbed his genitals on Burgos.
Tedesco called Burgos’ daughter (who is Muslim and wears a veil) a “towelhead.”
July 2009 through December 2011
Burgos alleges that, because Cosgrove failed to correct the hostile environment
at West Payne, she again sought to change her schedule. Burgos requested to move
from part-time status to a “relief” position on May 15, 2009, and began the new position
on July 1, 2009. Relief employees did not have regular hours and were not assigned to
a specific location, but instead filled in when and where needed. As a relief employee,
Burgos worked at a number of Southeast Works’ other locations and alleges that she
found discriminatory environments in each of them.
Some of the allegedly discriminatory comments and behavior were directed at
Burgos. For example:
In summer 2010, a white, male co-worker asked Burgos why black women have
so much trouble with their hair and whether it made her mad when he called the
cupcakes they were making “black cupcakes”.
Later in 2010, a white co-worker told another co-worker that she “better check
[her] bank account,” after giving Burgos her credit card to make a purchase,
which Burgos understood was a suggestion that Burgos was likely to steal
because she is black.
In early 2011, Judith Shanley, CEO of Southeast Works, told Burgos that white
residents’ families did not want black employees caring for their family members.
In February 2011, a white co-worker made a comment to Burgos implying that
only blacks live in inner-city neighborhoods.
Later in 2011, a co-worker, who had formerly worked as a prostitute in Buffalo,
told Burgos that men preferred her over black prostitutes because she had long
In June 2011, a male co-worker suggested that Southeast Works should hire
“some young white girls.”
In summer 2011, a younger co-worker told Burgos that, due to Burgos’ age,
Burgos was working more hours than she could handle, and that she was too old
and slow to work.
In December 2011, a Senior Residential Trainer, David Abston, asked Burgos,
“Are you stupid? Do you know how to use a computer?” when Burgos had
trouble logging onto Southeast Works’ system.
Also in December 2011, Abston referred to a group of older women, which
included Burgos, as the “hot flash corner.” Around that same time, Abston also
made sexual comments to Burgos, telling her to “bend over, yeah, bend over”
and telling Burgos that he had to pay his girlfriend for sex before she left him.
A Residential Coordinator told a disabled resident that he did not have to work
with Burgos because Burgos was old and invisible.
Other allegedly discriminatory incidents were overheard or reported to Burgos by other
employees. For example:
A co-worker told Burgos that she had heard someone call Burgos a “nigger.”
In summer 2010, a Residential Manager told one of Burgos’ co-workers that she
was a good color for a biracial black girl.
In 2011, a male co-worker asked a female co-worker: “When are you going to
give me some of that pussy?” and attempted to kiss her.
In 2011, a black female co-worker overheard a shipping employee say that
President Obama’s face belonged on food stamps, not currency.
In January 2011, Abston told a female Residential Trainer that he is so fat that he
needs to grab his penis with both hands when he masturbates.
In June 2011, a Hispanic co-worker was told that she should not be allowed to
give speech therapy and ridiculed because of her accent.
In fall 2011, a white female co-worker said that she would never date a black
In December 2011, Burgos heard Abston calling a female resident a “bitch.”
Burgos alleges that, when she reported many of these incidents to her supervisors, they
ignored her, mocked her, or otherwise failed to take an appropriate action.
example, Burgos alleges she complained to Rose Cunningham, a Residential Manager,
who told her that there would be “no talk of racial discrimination around here.” And,
when Burgos complained about Abston’s comments regarding her inability to log onto
the computer to Megan Calkins, a Residential Coordinator, Calkins took Abston’s side,
suggesting that Burgos’ age, in fact, affected her computer skills.
January 2012 through May 2012
Burgos alleges that she made numerous complaints regarding Abston to
Residential Manager Cherie Bender and to Residential Coordinators Calkins and Nicole
Perry, which triggered retaliation in the form of being denied work. Burgos alleges that
she worked regularly in 2010 and 2011 as a relief Residential Trainer, receiving shifts
nearly every week, but that she was not given shifts between January 15 and May 6,
2012 because Abston controlled relief scheduling. It is disputed whether any relief
shifts were available for Burgos. Southeast Works contends that Burgos was offered
weekend shifts, which she turned down.
Burgos alleges that weekday shifts were
available, but that Abston improperly allowed male employees to work overtime rather
than assigning the shifts to Burgos. Burgos began work again when two of her black
female co-workers checked the schedule and informed Burgos that shifts were
available. Burgos then called and was given the shifts. Southeast Works contends that
Burgos could have called earlier to seek shifts; Burgos contends that Southeast Works
had previously called her to assign shifts weekly, that she had never needed to seek
shifts before, and that she was only able to receive assignments again because Abston
was on administrative leave.
On March 16, 2012, Burgos filed a charge against Southeast Works with the New
York State Department of Human Rights (“DHR”), of which, Burgos alleges, Southeast
Works’ employees were aware. On April 24, 2012, Burgos attended a training session
at Southeast Works.
Burgos alleges that two of the presenters harassed and
intimidated her during the training: Joseph Clem, who was conducting the training,
stood directly behind Burgos and attempted to physically intimidate her; and Maureen
Rivera, a nurse, made eye contact with Burgos while falsely stating that more
heterosexual black women die from AIDS than any other demographic and that this is
because HIV originated in Africa, and that the disease and was spread because
Africans ate “monkey meat.”
After this training, Burgos wrote a letter to Pamela Hayes, Executive Director of
Southeast Works, complaining about Rivera and Clem. Burgos alleges that, after she
made the complaint, some of Rivera’s fellow nurses began to bully her and make
threats. Burgos alleges that one of the nurses told Burgos that she knew drug addicts
that would “take care of” people and used physically threatening body language and
tone of voice when addressing Burgos. Burgos further alleges that Rivera brought a
knife into the workplace and showed the knife to Burgos’ friend, telling her that Rivera
would use this weapon in the “hood.” Burgos alleges that the nurses’ behavior and
loyalty to each other made her fear for her safety.
Burgos further alleges that she was contacted by the guardian of a
developmentally disabled client who had heard from another Residential Trainer that a
nurse was carrying a knife at work. Burgos alleges that she spoke to the guardian and
confirmed the rumor because part of her job was discussing client care, and this related
to client care.
The guardian wrote a letter to Southeast Works questioning the
environment as being unsafe and discriminatory.
The Chief Operating Officer of
Southeast Works, Susan Mentecki, said that Burgos should be disciplined for her
contact with the guardian, and that disciplining Burgos might help in resolving the DHR
Southeast Works contends that it made several attempts to meet with Burgos
regarding her complaint about Rivera, but that Burgos refused to meet. Burgos alleges
that she did not receive the initial invitation to meet (due to internal technological issues
at Southeast Works) and that Southeast Works refused to accommodate her by
meeting off-site or conducting a phone interview. Burgos alleges that she only refused
to meet because she feared for her safety in the presence of Rivera. Burgos eventually
spoke to Murphy by phone, on May 21, 2012. In that conversation, Burgos alleges that
she told Murphy she feared for her safety and this, coupled with Southeast Works’
failure to address the workplace harassment and discrimination, compelled her to
Burgos alleges that Southeast Works also retaliated against other employees.
She alleges that a black female employee was transferred to a different location when
she complained that a white male employee called her “ghetto”, while the white male
employee was not disciplined. A different black female employee was issued a written
warning for lack of professionalism shortly after she filed a complaint with DHR, though
she had never previously been disciplined.
Burgos also presents comparator
allegations, giving examples of younger, non-black, and male employees to argue that
Southeast Works treated women, blacks, and older employees disproportionally worse.
“A motion for summary judgment may properly be granted . . . only 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). A court’s function on a 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 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986)). “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
v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2003) cert. denied, 540 U.S. 811, 124 S. Ct.
53, 157 L. Ed. 2d 24 (2003) (quoting Anderson, 477 U.S. at 248).
Title VII prohibits an employer from unlawfully discriminating against an
employee because of an individual’s sex or race, among other characteristics. See 42
U.S.C. § 2000e-2(a)(1). In addition, § 1981 “prohibits discrimination based on race in
the making and enforcement of contracts,” including employment contracts. Anderson
v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998); see also Tolbert v. Smith, 790 F.3d 427,
436 (2d Cir. 2015) (“Refusing to award a contract or a material employment benefit for a
discriminatory reason violates [§ 1981].”). Finally, the ADEA prohibits an employer from
discriminating against or discharging an employee because of her age. See 29 U.S.C.
§ 623(a)(1). Except as noted, employment discrimination claims brought under Title VII,
the ADEA, and § 1981 are generally analyzed under the same evidentiary framework.
See Lu v. Chase Inv. Servs. Corp., No. 07 Civ. 1256, 2009 WL 4670922, at *6-7
(S.D.N.Y. Dec. 9, 2009) (“Claims of employment discrimination under Section 1981 are
analyzed under the same standard as Title VII claims.”); Patterson v. Cty. of Oneida,
N.Y., 375 F.3d 206, 225-27 (2d Cir. 2004) (applying Title VII hostile work environment
analysis to a hostile work environment claim under section 1981); Brennan v.
Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 316-18 & n. 2 (2d Cir. 1999) (“The
analysis of the hostile working environment theory of discrimination is the same under
the ADEA as it is under Title VII.”).
In the employment discrimination context, a court should take a “totality of the
circumstances” approach and look to “the entire record to determine whether the
plaintiff could satisfy [her] ‘ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff.’” Schnabel v. Abramson, 232
F.3d 83, 88 (2d Cir. 2000) (quoting Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). District courts must be
cautious in granting summary judgment in employment discrimination cases because
“the ultimate issue to be resolved in such cases is the employer’s intent, an issue not
particularly suited for summary adjudication.” Eastmer v. Williamsville Cent. Sch. Dist.,
977 F. Supp. 207, 212 (W.D.N.Y. 1997) (citing Gallo v. Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994)).
Burgos makes five claims for relief under NYHRL, Counts 4, 6, 8, 10, and 12 of
the Amended Complaint. 3 Southeast Works contends that, because Burgos elected to
pursue an administrative charge before the DHR, she is precluded from litigating those
claims here pursuant to the NYHRL “election of remedies” provision. N.Y. Exec. Law §
297(9) (“[a]ny person claiming to be aggrieved by an unlawful discriminatory practice
shall have a cause of action in any court of appropriate jurisdiction . . . unless such
person had filed a complaint hereunder or with any local commission on human rights”).
Burgos does not oppose this portion of Southeast Works’ motion.
Here, Burgos’ complaint to the DHR included claims of race discrimination, sex
discrimination, age discrimination, sexual harassment, and retaliation—the same claims
Burgos asserts in this lawsuit. “When the [DHR] has issued a finding of no probable
cause . . . plaintiff’s claims . . . are barred by the [NYHRL] election of remedies
provisions because [plaintiff] has already litigated the claims before the [DHR].”
Guardino v. Vill. of Scarsdale Police Dep’t, 815 F. Supp. 2d 643, 646 (S.D.N.Y. 2011);
see also Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d Cir. 2013) (“The
District Court properly ruled that [plaintiff's NYHRL] claim was barred on the basis of
election of remedies,” which “precludes resort to courts after claims have been filed with
a local commission on human rights.”).
Accordingly, Burgos’ NYHRL claims are
Statute of Limitations
Defendant has also raised the defense of statute of limitations. Burgos’ claims
under Title VII and the ADEA are subject to a 300-day limitations period, running from
the time that Burgos filed her administrative charge with the DHR on March 16, 2012.
See 42 U .S.C. § 2000e-5(e)(1); 29 U.S.C. §§ 626(d)(2), 633(b); Nat’l R.R. Passenger
The Motion for Summary Judgment incorrectly identifies only four claims under NYHRL.
Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).
Burgos’ race discrimination claim under § 1981 is subject to a four-year statute of
limitations period from the time that the complaint was filed in this Court on July 3, 2013.
Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382-83, 124 S. Ct. 1836, 158 L. Ed.
2d 645 (2004). Accordingly, the limitations period for Burgos’ Title VII and ADEA claims
began on May 21, 2011 (300 days prior to the date the administrative charge was filed);
and the limitations period for Burgos’ § 1981 claims began on on July 3, 2009 (four
years prior to the date the Complaint was filed).
Burgos contends that incidents prior to the limitations period should be
considered by this Court because the earlier incidents are part of a continuing violation
in her hostile work environment claims. “When, as in this case, a plaintiff’s allegations
of discrimination extend beyond the 300-day limitations period, the nature of the claim
determines what consideration will be given to the earlier conduct.” Petrosino v. Bell
Atl., 385 F.3d 210, 220 (2d Cir. 2004). “For statute of limitations purposes, incidents of
employment discrimination must be categorized either as discrete acts or continuing
violations.” Fleming v. Verizon N.Y., Inc., 419 F. Supp. 2d 455, 465 (S.D.N.Y. 2005)
(citing Morgan, 536 U.S. at 114-16). “A discrete act of discrimination is time-barred if it
occurred prior to the applicable limitations period,” even if it relates to other timely filed
charges. Id.; see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir.
Accordingly, any allegations of discrete acts that fall outside the relevant
limitations period, including the allegation that Burgos was constructively demoted when
she began working in a relief position on July 1, 2009, will not be considered on those
However, hostile environment claims differ from claims based on discrete acts of
discrimination because a hostile environment involves “repeated conduct” or the
“cumulative effect of individual acts” and the “unlawful employment practice therefore
cannot be said to occur on any particular day.” Morgan, 536 U.S. at 115. Therefore,
time-barred incidents “may constitute relevant background evidence in a proceeding in
which the status of a current practice is at issue.” Id. at 112 (internal quotation omitted).
Where “a plaintiff has experienced a continuous practice and policy of discrimination,
the commencement of the statute of limitations period may be delayed until the last
discriminatory act in furtherance of it.” Washington v. County of Rockland, 373 F.3d
310, 317 (2d Cir. 2004) (internal alteration and quotation marks omitted). In McGullam
v. Cedar Graphics, Inc., the Second Circuit outlined how to assess the timeliness of
hostile work environment claims. 609 F.3d 70 (2d Cir. 2010). Courts should determine
(1) “whether [the plaintiff] alleged any discriminatory act within the limitations period,”
and (2) whether the acts that took place within the limitations period were “sufficiently
related to” acts outside of the limitations period “to be part of the same alleged hostile
work environment practice.”
Id. at 76-77.
Courts should make an “individualized
assessment” of relatedness, considering whether “as a matter of law that the acts
before and after the limitations period were so similar in nature, frequency, and severity
that they must be considered to be part and parcel of the hostile work environment.” Id.
at 77, 78 (quoting Rowe v. Hussmann Corp., 381 F.3d 775, 781 (8th Cir. 2004)). If the
incidents are sufficiently related, then the acts that took place outside of the limitations
period may be considered on the merits as part of the hostile work environment claim.
There is no dispute that Burgos alleges incidents that fall within the statutory
period and therefore meets the first prong of the McGullam test. However, Southeast
Works contends that the incidents of harassment prior to May 21, 2011 should not be
considered because Burgos’ Amended Complaint contains no allegations that Burgos
herself was harassed, discriminated against, or subjected to a hostile work environment
between July 2009 and January 2011. Southeast Works further contends that there is
little overlap between the individuals involved in the earlier period of harassment and
those in the later allegations.
Discriminatory incidents, separated by a long gap, may sometimes be found
insufficiently related for application of the continuing violations doctrine. For example, in
McGullam, the Second Circuit found that a one-year interval between allegedly
harassing incidents, “render[ed] less plausible the notion that the [incidents were] of a
piece.” 609 F.3d at 78. Similarly, a six-year gap has been held to be “too large for any
reasonable application of the continuing violation exception.”
Buffalo News, No. 12-CV-471, 2013 WL 3777139, at *2 (W.D.N.Y. July 17, 2013)
(internal quotation omitted).
Here, although Burgos did not include discriminatory
incidents in her Amended Complaint or administrative charge for the period between
July 2009 and January 2011 in which she was the target, she includes sufficient
evidence in opposition to this motion to raise a material question of fact as to whether
she continued to experience discrimination during that period. For example, she alleges
that, in summer 2010, a white, male co-worker asked Burgos why black women have so
much trouble with their hair and whether it made her mad when called cupcakes they
were making “black cupcakes,” and that, later that year, a white co-worker told another
co-worker that she “better check [her] bank account,” after giving Burgos her credit card
to make a purchase, which Burgos understood was a suggestion that Burgos was likely
to steal because she is black.
Further, Burgos did allege, in both the Amended Complaint and the
administrative charge, several incidents of discrimination directed at her co-workers
during this period. Citing no precedent as the basis for its argument, Southeast Works
contends that discriminatory acts that were not directed at Burgos herself should not be
considered when evaluating whether the acts outside the limitations period should be
considered “part of the same alleged hostile work environment practice.” McGullam,
609 F.3d at 76-77. This would appear to contradict the rule set forth by the Second
Circuit, which urges district courts to “focus[ ] on the nature of the workplace
environment as a whole,” and therefore allows consideration of instances of hostility
even where a plaintiff is not the target. Cruz v. Coach Stores, Inc., 202 F.3d 560, 570
(2d Cir. 2000) (“a plaintiff who herself experiences discriminatory harassment need not
be the target of other instances of hostility in order for those incidents to support her
claim”), superseded on other grounds by N.Y.C. Local L. No. 85 (enacted 2005); see
also Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir. 1997) (noting with approval
that the district court allowed the plaintiff “to present evidence of an environment of
sexual harassment, to the extent that she observed it, dating back to January 1989, i.e.,
six months earlier than any harassment of [plaintiff] herself”).
Burgos has alleged incidents directed at her, as well as incidents directed at her
co-workers, during the “gap” identified by Southeast Works.
Further, the alleged
incidents are all sufficiently related because they were similar in nature and severity,
McGullam, 609 F.3d at 77, 78, and because they followed the same pattern of
discriminatory comments and incidents that supervisors ignored or failed to properly
address. They can therefore be considered to be part and parcel of the hostile work
environment. See Morgan, 536 U.S. at 120-21 (affirming finding that conduct was part
of same actionable hostile work environment claim where the pre-and post-limitation
period incidents “involved the same type of employment actions, occurred relatively
frequently, and were perpetrated by the same managers”) (citation and alteration
Accordingly, this Court will consider the alleged behavior outside the
limitations period as part of Burgos’ hostile work environment claims.
Hostile Work Environment
Burgos contends that she was subject to a hostile work environment due to her
sex, race, and age in violation of Title VII, the ADEA, and § 1981. Southeast Works
argues that Burgos’ allegations are not sufficiently severe or pervasive to establish a
hostile work environment.
A hostile work environment exists where the work environment is permeated with
discriminatory intimidation, ridicule and insult that are sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working
environment. Harris v. Fork Lift Sys., Inc., 510 U.S. 17, 20, 114 S. Ct. 367, 126 L. Ed.
2d 295 (1993). To prevail on a hostile work environment claim, the plaintiff must show
both (1) that her work environment was permeated with discriminatory intimidation that
was sufficiently severe or pervasive to alter the condition of her employment, and (2)
that a specific basis exists for imputing to the employer the conduct that created the
hostile environment. Briones v. Runyon, 101 F.3d 287, 291 (2d Cir. 1996). When
evaluating a hostile work environment claim, courts should consider the totality of the
circumstances, such as the frequency and severity of the conduct, whether it was
physically or verbally threatening, and whether it unreasonably interferes with the
employee’s job performance. Rivera v. Rochester Genesee Reg’l Transp. Auth., 743
F.3d 11, 20 (2d Cir. 2014). The plaintiff may show “either that a single incident was
extraordinarily severe, or that a series of incidents were sufficiently continuous and
concerted to have altered the conditions of her working environment.” Cruz, 202 F.3d at
570 (internal quotation marks omitted). The analysis has both “objective and subjective
elements: the misconduct shown must be severe or pervasive enough to create an
objectively hostile or abusive work environment, and the victim must also subjectively
perceive that environment to be abusive.” Rivera, 743 F.3d at 20 (internal quotation
As noted above, “[t]he crucial inquiry focuses on the nature of the workplace
environment as a whole, [so] a plaintiff who herself experiences discriminatory
harassment need not be the target of other instances of hostility in order for those
incidents to support her claim.” Cruz, 202 F.3d at 570; see also Schwapp v. Town of
Avon, 118 F.3d 106, 111-12 (2d Cir. 1997) (plaintiff’s second-hand knowledge of racially
derogatory comments or jokes can impact work environment). Nor is it necessary that
“offensive remarks or behavior be directed at individuals who are members of the
plaintiff's own protected class” for those remarks to support a plaintiff’s claim. Id. Even
where Burgos herself “[was] not present or [was] not the target of some of [the] racial
remarks, a jury plausibly could find that persistently offensive conduct created an overall
‘hostile or abusive environment,’ which exacerbated the effect of the harassment
[Burgos] experienced individually.”
Id. at 571 (quoting Harris, 510 U.S. at 21).
Moreover, because “one type of hostility can exacerbate the effect of another,”
allegations of race-based, sex-based, and retaliation-based animosity can be
considered by a factfinder when evaluating Plaintiffs’ claims of a race, sex, and agebased hostile work environment. Feingold v. New York, 366 F.3d 138, 151 (2d Cir.
2004); see also Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir. 2003) (holding that
retaliation-based hostility could have exacerbated effect of race-based hostility in
creating hostile work environment); Daniel v. T & M Prot. Res., LLC, No. 15-560-CV,
2017 WL 1476598, at *3 (2d Cir. Apr. 25, 2017) (summary order) (“The evidence that
[plaintiff] was harassed on multiple fronts—because of his race, sex, and national
origin—should also be considered when evaluating [his] work environment as a
1. Sex-Based and Race-Based Discrimination
Southeast Works argues that the hostile work environment claims must be
dismissed because the allegations of discrimination within the relevant statutory periods
were not sufficiently severe or pervasive to create an abusive working environment, and
instead characterizes the allegations as petty workplace grievances.
Court has already found that the continuing violation doctrine applies and therefore the
allegations from the entire period of Burgos’ employment with Southeast Works’ merit
Southeast Works is correct that anti-discrimination statutes are not a “general
civility code,” see Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999), and a
few isolated incidents of “boorish or offensive use of language” are generally insufficient
to establish a hostile work environment. See Benette v. Cinemark U.S.A., Inc., 295 F.
Supp. 2d 243, 251-252 (W.D.N.Y. 2003). However, making all inferences in Burgos’
favor, the allegations of harassment here are of “such quality or quantity that a
reasonable employee would find the conditions of her employment altered for the
worse.” Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001) (internal quotation
and emphasis omitted)).
Burgos has provided allegations of sex and race-based
discrimination that are both severe and pervasive. Some of the severe incidents include
allegations that Burgos’ co-workers encouraged a developmentally disabled client to call
her and other black females “black nigger bitches,” and that a male co-worker rubbed
his genitals on Burgos. See Rivera, 743 F.3d at 24 (noting that “perhaps no single act
can more quickly alter the conditions of employment and create an abusive working
environment than the use of an unambiguously racial epithet such as ‘nigger’ by a
supervisor in the presence of his subordinates”); Copantitla v. Fiskardo Estiatorio, Inc.,
788 F. Supp. 2d 253, 301 (S.D.N.Y. 2011) (noting that “a reasonable jury could consider
[an alleged harasser grabbing the plaintiff by the waist and rubbed his genitals against
the plaintiff] sufficiently severe so as to alter the conditions of employment). Indeed,
taking into consideration all of the allegations made by Burgos, she “presents a
persistent pattern of harassment that began as soon as [s]he was hired by [Southeast
Works] and continued until [her resignation].” Daniel, 2017 WL 1476598, at *3.
But, given the Second Circuit's “repeated[ ] caution[s] against setting the bar too
high,” Terry, 336 F.3d at 148, Burgos’ claims would still survive even without the
allegations that Southeast Works argues should be time-barred. Burgos’ co-worker,
Abston, made sexually suggestive comments to Burgos and told Burgos and her female
co-workers explicit details of his sex-life.
Abston and others also made pervasive
comments to Burgos and her co-workers regarding their sex and race. Rivera singled
Burgos out while falsely stating that more heterosexual black women die from AIDS
than any other demographic and that this is because HIV originated in Africa, where
Africans ate “monkey meat.” Further, Burgos alleges that she was threatened and
bullied after complaining of Rivera’s behavior, including by Rivera bringing a knife into
the workplace and saying she would use this weapon in the “hood.”
sufficiently alleged a subjective fear arising from Rivera’s actions. Moreover, based on
Burgos’ allegations of Rivera’s prior comments and the fact that she brought a weapon
to the workplace, Rivera’s actions were such that a trier of fact could find that she
created an objectively dangerous situation.
Compare Simmons-Grant v. Quinn
Emanuel Urquhart & Sullivan, LLP, 915 F. Supp. 2d 498, 507 (S.D.N.Y. 2013) (finding
plaintiff’s fear could not be objectively reasonable where fear was based on single
verbal confrontation, generalized anger, and hearsay allegations of verbal abuse from
other co-workers, and where employer made efforts to separate plaintiff from the
offending co-worker); Hicks v. Baines, 593 F.3d 159, 168 (2d Cir. 2010) (trier of fact
could find situation objectively dangerous where plaintiff alleged punitive scheduling by
being transferred to a facility housing a troubled youth who had previously threatened
Making all inferences in Burgos’ favor and viewing the circumstances in their
totality, this Court finds that this string of incidents “transcended coarse, hostile and
Citing Simmons-Grant, Southeast Works argues that this Court should not find an issue of material fact
as to whether the situation was objectively dangerous because it made an attempt to separate Rivera
from Burgos after Burgos complained. However, Burgos also alleges that Southeast Works attempt to
investigate her complaint required her to be in the same building as Rivera, thereby raising a disputed
fact as to whether Southeast Works truly attempted to separate Rivera from Burgos.
boorish behavior,” see Annis v. Cnty. of Westchester, N.Y., 36 F.3d 251, 254 (2d Cir.
1994), and strayed into the realm of alarming and threatening conduct. Whether the
conduct that occurred was sufficient to alter Burgos’ work environment is a factual
question to be determined by the trier of fact.
Southeast Works further argues that “nearly all” of the alleged harassers were
co-workers rather than supervisors and that their harassment cannot be imputed to
Southeast Works because Burgos failed to take sufficient actions to report it. Southeast
Works cites its own Employee Handbook, which states that “[a]ny employees with
questions or concerns about any type of discrimination in the workplace are encouraged
to bring these issues to the attention of their immediate supervisor or the Human
Resources Director.” Southeast Works argues that, although Burgos alleges that she
reported numerous incidents to her supervisors in accordance with the policy, her failure
to report incidents to the Human Resources Director until the end of her tenure at
Southeast Works was an “unreasonabl[e] fail[ure] to take advantage of the employer’s
preventative measures” and Burgos’ claims therefore merit dismissal. See Gorzynski v.
Jetblue Airways Corp., 596 F.3d 93, 105 (2d Cir. 2010). This argument is unpersuasive.
Burgos alleges that she made numerous reports through the years to different
supervisors, as well as at least one complaint to Southeast Works’ compliance hotline.
Further, the Human Resources Director’s response to Burgos’ complaint, including her
refusal to meet Burgos outside work to discuss the issue, calls into question whether
she was truly receptive to complaints. This raises a “genuine issue of fact . . . as to
whether it was reasonable not to pursue other options.”
See id. (“the facts and
circumstances of each case must be examined to determine whether, by not pursuing
other avenues provided in the employer’s sexual harassment policy, the plaintiff
unreasonably failed to take advantage of the employer’s preventative measures”).
Accordingly, the motion for summary judgment is denied as to these claims.
2. Age-Based Discrimination
Southeast Works also argues that the age-related comments alleged by Burgos
are too few, too separate in time, and too mild to constitute an abusive working
environment. Burgos alleges five incidents or comments in support of her age-based
In June 2011, a male co-worker suggested that Southeast Works should hire
“some young white girls.”
In summer 2011, a younger co-worker told Burgos that, due to Burgos’ age,
Burgos was working more hours than she could handle, and that she was too old
and slow to work.
In December 2011, Abston asked Burgos, “Are you stupid? Do you know how to
use a computer?” when Burgos had trouble logging onto Southeast Works’
Also in December 2011, Abston referred to a group of older women, which
included Burgos, as the “hot flash corner.”
A supervisor told a disabled resident that he did not have to work with Burgos
because Burgos was old and invisible.
Burgos asserts that these five incidents are sufficient to survive summary judgment on
her age-discrimination hostile work environment claim.
“There is no fixed number of incidents that a plaintiff must endure in order to
establish a hostile work environment; rather, we view the circumstances in their totality,
examining the nature, severity, and frequency of the conduct.”
Costello, 294 F.3d 365, 379 (2d Cir. 2002)).
see also Alfano v.
However, as noted above, the anti-
discrimination statutes are not a “general civility code,” see Bickerstaff, 196 F.3d at 452,
and a few isolated incidents of “boorish or offensive use of language” are generally
insufficient to establish a hostile work environment. See Benette, 295 F. Supp. 2d at
Unlike Burgos’ allegations of sex and race-based discrimination, the
comments based on age are neither pervasive nor severe.
Accordingly, Count 3,
Burgos’ age-based hostile work environment claim, is dismissed.
Unlawful Discrimination and Retaliation Claims
Race discrimination and retaliation claims under Title VII, § 1981, or the ADEA,
are subject to the McDonnell Douglas burden-shifting standard.
See Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 106, 110 (2d Cir. 2010) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). To state a
prima facie case of discrimination, a plaintiff must proffer evidence that (1) she belongs
to a protected group; (2) she was qualified for her position; (3) her employer took an
adverse action against her; and (4) the adverse action occurred in circumstances giving
rise to an inference of race discrimination. Kirkland v. Cablevision Sys., 760 F.3d 223,
225 (2d Cir. 2014). To state a prima facie case of retaliation, a plaintiff must proffer
evidence that she engaged in a protected activity, such as complaining about
discrimination, and that her employer took an adverse action in retaliation. Id. This
initial prima facie burden has been characterized as “minimal” or “de minimis.” See
Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005).
Once an employee makes a prima facie case of either discrimination or
retaliation, the burden shifts to the employer to give a legitimate, non-discriminatory
reason for its actions. See McDonnell Douglas, 411 U.S. at 802. If the defendant
provides a nondiscriminatory reason for the adverse employment action, then, under
Title VII and § 1981 the plaintiff must present evidence either that “the employer’s stated
reason for the adverse employment action is entirely pretextual” or that unlawful
discrimination was a “motivating factor” in the defendant’s employment decision.
Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir. 2008). “To avoid summary judgment
in an employment discrimination case [under Title VII], the 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.”
Id. at 138 (internal
quotation marks omitted). In contrast, under the ADEA, a plaintiff at the third step must
present evidence that “age was the ‘but-for’ cause of the challenged adverse
employment action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 S. Ct.
2343, 174 L. Ed. 2d 119 (2009). With respect to a retaliation claim, the employee’s
admissible evidence must show “that the unlawful retaliation would not have occurred in
the absence of the alleged wrongful action or actions of the employer.”
Andalex Grp. LLC, 737 F.3d 834, 835 (2d Cir. 2013) (internal quotation marks omitted)
(quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533, 186 L. Ed. 2d
Southeast Works does not dispute that Burgos belongs to a protected group, that
she was qualified for her position as a Residential Trainer, or that she engaged in a
protected activity when she made her DHR complaint, as well as the complaints
regarding Abston and Rivera.
However, the parties dispute that Burgos has
demonstrated that she suffered an adverse employment action and that such actions
occurred under circumstances giving rise to an inference of discrimination (for her
discrimination claims), or that a causal connection existed between Burgos’ protected
activity and the adverse actions (for her retaliation claims).
1. Adverse Employment Action
An employee sustains an “adverse employment action” if she “endures a
materially adverse change in the terms and conditions of employment . . . . An adverse
employment action is one which is more disruptive than a mere inconvenience or an
alteration of job responsibilities.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir.
2012) (citation and quotation marks omitted). Examples that may constitute adverse
employment actions include “termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices . . . unique to a
particular situation.” Sanders v. N.Y. City Human Res. Admin, 361 F.3d 749, 755 (2d
Cir. 2004) (quoting Terry, 336 F.3d at 138). Here, the adverse employment actions of
which Burgos complains are alleged constructive demotion when she moved to a relief
position on July 1, 2009 (which this Court has found to be time-barred), her alleged
constructive discharge on May 21, 2012, and an alleged de facto unpaid leave during
the period in which she was offered no relief shifts, between January 15 and May 6,
Constructive discharge occurs “when an employer intentionally creates a work
atmosphere so intolerable that [the plaintiff] is forced to quit involuntarily.” Edwards v.
Huntington Union Free Sch. Dist., 957 F. Supp. 2d 203, 213 (E.D.N.Y. 2013) (internal
quotation marks and citations omitted; alteration in original). The constructive discharge
standard is “demanding” and it will not be satisfied based on difficult or unpleasant
working conditions or the plaintiff’s preference to no longer work for her employer. Id.
Rather, the plaintiff must present evidence: “(1) that the employer acted deliberately or
intentionally in bringing about the complained of work conditions, and (2) that the
conditions were ‘intolerable.’” Id. (citing Petrosino, 385 F.3d at 229). “[A] plaintiff may
prove a constructive discharge by establishing that her employer, rather than acting
directly, deliberately made her working conditions so intolerable that she was forced into
an involuntary resignation, i.e., so difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign.” Dowrich-Weeks v. Cooper
Square Realty, Inc., 535 F. App’x 9, 12 (2d Cir. 2013) (internal quotation and
Burgos alleges that she was compelled to resign because she feared for her
safety due to Rivera’s actions and comments and because of Southeast Works’ failure
to address the workplace harassment and discrimination. Southeast Works argues that
it tried to address Burgos’ complaints regarding Rivera but that Burgos refused to
This Court has already determined that Burgos has raised a genuine
dispute as to whether it was objectively reasonable to feel that her safety was
threatened when Rivera brought a weapon to work. It further finds that Burgos has
raised a genuine dispute as to whether Southeast Works made a reasonable attempt to
address her complaint regarding Rivera and prior complaints regarding Abston. Burgos
has also alleged that, in conducting the investigation into the Rivera complaint,
Southeast Works offered concessions to Rivera and other non-black employees being
investigated that were not offered to Burgos. For example, Rivera was offered the
opportunity to meet off-site or discuss the complaint against her by phone, while Burgos
was only offered the opportunity to meet in person at the location where Rivera worked.
This discrepancy in treatment could lead a fact-finder to determine that Southeast
Works’ failures to address Burgos’ complaints “were deliberate and not merely negligent
Petrosino, 385 F.3d at 229 (internal quotation marks, citation, and
alterations omitted). Accordingly, making all inferences in Burgos’ favor, a fact-finder
could find that Burgos was constructively discharged under an inference of
With respect to the period in which Burgos was offered no relief shifts, Southeast
Works contends that Burgos has failed to provide evidence of any deliberate action on
its part, since Burgos could have called to request a shift and, as soon as she did make
such a request, she was assigned work. Burgos contends that she was never required
to request shifts previously, that overtime shifts were given to male employees in
contravention of Southeast Works’ policies during that period, and that she was only
given shifts once Abston, a co-worker about whom she had complained, was no longer
responsible for making assignments.
Making all inferences in Burgos’ favor, these
allegations are sufficient to raise a genuine dispute of material fact as to whether
Burgos would have been assigned relief shifts if she had sought them, or if this period
was a de facto unpaid leave imposed by Abston. See generally Hughes v. City of
Rochester, 12-CV-6112, 2016 WL 4742321, at *6 (W.D.N.Y. Sept. 12, 2016) (finding
that employer’s decision to place plaintiff on unpaid leave was an adverse employment
action); Little v. Nat'l Broad. Co., 210 F. Supp. 2d 330, 379 (S.D.N.Y. 2002) (adverse
employment action where plaintiff “produced evidence that he incurred an actual loss in
income because of lost overtime and that he was forced to work undesirable shifts with
an erratic schedule”). This, combined with Abston’s alleged discriminatory comments,
could allow a fact-finder could to find that Burgos was put on de facto unpaid leave
under an inference of discrimination.
Accordingly, this Court finds that the record contains sufficient evidence that, if
credited, could support a jury’s finding that Southeast Works’ rationale for Burgos’
treatment was a pretext for illegal discrimination based on her race and sex. However,
having made all inferences in Burgos’ favor, there is insufficient evidence to
demonstrate that the “age was the ‘but-for’ cause of the challenged adverse
employment action,” as required by the ADEA. See Gross, 557 U.S. at 180. Count 1 is
Burgos made several complaints regarding Abston’s comments in December
2011 and January 2012, including sexual comments and the incident where he asked
her if she was “stupid” because she had been unable to log onto a computer, which
Burgos took to be an age-discriminatory comment.
Burgos also filed her DHR
complaint on March 16, 2012, complaining of sex, race, and age-based discrimination
and harassment, and complained to Southeast Works’ Executive Director by letter
about Rivera’s “monkey meat” comments on April 24, 2012.
These complaints all
constitute protected activities. 5
Further, the temporal proximity between Burgos
complaints and the alleged adverse employment actions suffice at the prima facie stage
to establish a causal connection. See Cifra v. GE, 252 F.3d 205, 217 (2d Cir. 2001)
(“[T]he causal connection needed for proof of a [prima facie] retaliation claim can be
established indirectly by showing that the protected activity was closely followed in time
by the adverse action.” (internal quotation omitted)); Gorman-Bakos v. Cornell Coop.
Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001) (“[A] plaintiff can
indirectly establish a causal connection to support a discrimination or retaliation claim by
showing that the protected activity was closely followed in time by the adverse
employment action.” (internal quotation marks and alterations omitted)).
Although Southeast Works has articulated nondiscriminatory rationale for the
alleged adverse actions, Burgos’ allegations “cast[ ] significant doubt on that rationale,
leaving a triable issue as to whether [Southeast Works] retaliated against her for
complaining about prohibited discrimination.” Gorzynski, 596 F.3d at 111. “A jury might
credit all of [Burgos’] proffered evidence, some of it, or none at all. But that is ‘left for
the jury to decide at trial.’” Kirkland, 760 F.3d at 227 (2d Cir. 2014) (vacating summary
judgment for employer) (quoting Rivera, 743 F.3d at 21 (2d Cir. 2012) (same). And if at
least some of this evidence is believed by a jury, that jury could also conclude that,
despite Burgos’ decision not to seek relief shifts, her de facto unpaid leave and
constructive discharge were “‘more likely than not based in whole or in part on
discrimination,’ and that the unlawful retaliation would not have occurred ‘but-for’ the
Although this Court has found that Burgos’ age-discrimination allegations do not rise to the level of an
ADEA violation, her age-discrimination complaints would nevertheless constitute a protected activity. See
Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125, 136 (2d Cir. 1999) (noting that an employee's
reasonable, good faith belief that he is complaining of conduct he believes rises to the level of a racially
hostile work environment would satisfy the “protected activity” prong).
alleged wrongful actions. Id. (quoting Terry, 336 F.3d at 138 (internal quotation marks
omitted)). 6 Accordingly, this portion of the motion for summary judgment is denied.
Burgos’ NYHRL claims, Counts 4, 6, 8, 10, and 12 are dismissed under the
election of remedies doctrine.
The ADEA constructive discharge and hostile work
environment claims, Counts 1 and 3, are also dismissed. Otherwise, Southeast Works’
motion for summary judgment is denied and Counts 2, 5, 7, 9, 11, and 13 will go
IT HEREBY IS ORDERED that Defendant Southeast Works’ motion for summary
judgment (Docket No. 72) is GRANTED in part and DENIED in part consistent with this
Dated: May 31, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
Southeast Works argues that the DHR’s conclusion that there was no evidence of retaliation should be
considered by this Court. Ordinarily, a determination of the DHR, by itself, does not have res judicata
effect as to subsequent federal claims unless a state court has reviewed and adopted those findings.
See Yan Yam Koo v. Dep't of Buildings of City of N.Y., 218 Fed. App’x 97, 99 (2d Cir. 2007) (summary
order) (“preclusive effect attached once the state court reviewed and affirmed the [NY] DHR’s finding of
no probable cause”). Here, no state court has reviewed the DHR’s finding.
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