Neubecker v. New York State
Filing
61
DECISION AND ORDER granting in part and denying in part 37 Motion for Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 09/17/2018. (CDH)
rlufrt..'
UNITED STATES DISTRICT COURT
SEP 1 7 2018
WESTERN DISTRICT OF NEW YORK
^
OrSTRlQl^''
CONSTANCE J. NEUBECKER,
DECISION AND ORDER
Plaintiff,
I:I5-CV-00614 EAW
V.
NEW YORK STATE, STATE UNIVERSITY
OF NEW YORK,ERIE COMMUNITY
COLLEGE,
Defendant.
INTRODUCTION
Plaintiff Constance Neubecker ("Plaintiff) commeneed this action against
Defendant Erie Community College("ECC" or "Defendant")' on July 10, 2015, asserting
violations of Title VII of the 1964 Civil Rights Act, as amended, 42 U.S.C. § 2000e et
seq. ("Title VII"), the Equal Pay Act, as amended, 29 U.S.C. § 206(d)(the "EPA"), and
the Lilly Ledbetter Fair Pay Act, 42 U.S.C. § 2000e-5 (the "Ledbetter Act"). (Dkt. I).
Presently before the Court is Defendant's motion for summary judgment. (Dkt. 37). For
the reasons that follow. Defendant's motion is granted in part and denied in part.
'
The caption of Plaintiffs complaint identifies "New York State, State University
of New York, Erie Community College" as the defendant. {See Dkt. I at I). The
substance of the complaint makes it clear that Plaintiff is suing only ECC, and not the
State of New York or the State University of New York separately. {See id. at ^ 2).
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BACKGROUND
I.
Procedural Background
Prior to commencing the instant action, Plaintiff, a female employee of EGG,filed
a charge with the Equal Employment Opportunity Commission ("EEOC") on August 7,
2012, alleging discrimination on the basis of her gender and unlawful retaliation for her
prior complaints of discrimination. (Dkt. 37-6 at 1).^ On July 31, 2014,the EEOC issued
a probable cause finding. (Dkt. 53-4 at 2-4).
On July 10, 2015, Plaintiff commenced the instant action, asserting violations of
Title VII, the EPA, and the Ledbetter Act. (Dkt. 1). Defendant filed an answer to
Plaintiffs complaint on October 29, 2015. (Dkt. 6). As confirmed on the record at oral
argument. Plaintiff now seeks to voluntarily dismiss her EPA and Ledbetter Act claims.
(See Dkt. 53 at 23). Plaintiffs Title VII allegations of gender discrimination, hostile
work environment, unlawful retaliation, and pay discrimination remain at issue.
On August 8, 2017, Defendant moved for summary judgment. (Dkt. 37).
Defendant filed an amended memorandum in support of its motion and an amended Rule
56 statement of undisputed facts on September 14, 2017. (Dkt. 42). Plaintiff filed her
opposition to the motion on January 8, 2018 (Dkt. 53), and Defendant replied in support
of the motion on January 25, 2018 (Dkt. 56). Oral argument on Defendant's motion for
^
Plaintiff apparently filed multiple charges with the EEOC (see Dkt. 53-4 at 2), but
the parties confirmed at oral argument that the operative EEOC charge, for purposes of
this action, is the one filed on August 7, 2012. Copies of Plaintiffs prior EEOC charges
are not in the record before the Court.
summary judgment was held before the undersigned on May 24, 2018. (Dkt. 60). The
Court reserved decision.
II.
Factual Background
The following facts are taken from Defendant's Statement of Material Facts Not in
Dispute (Dkt. 42-1)("Def. Stmt."), Plaintiffs response thereto (Dkt. 53-1)("PI. Stmt."),
and the exhibits submitted by the parties (Dkt. 37-1; Dkt. 37-2; Dkt. 37-3; Dkt. 37-4; Dkt.
37-5; Dkt. 37-6; Dkt. 53-2; Dkt. 53-3; Dkt. 53-4; Dkt. 56-1; Dkt. 56-2). The facts set
forth below are undisputed, unless otherwise noted.
Plaintiff began working for ECC on April 4, 1985, as a laborer. (Def. Stmt. at ^ 1;
PI. Stmt. at ^ 1). Plaintiff became a truck driver for ECC in August 1999. (Def. Stmt. at
^ 1; PI. Stmt. at Tf 1). As a truck driver, Gary Goshen ("Goshen"), ECC's head custodian,
was Plaintiffs direct supervisor. (Def. Stmt. at T| 1; PI. Stmt. at Tf 1). Goshen in turn
reported to Anthony Nesci ("Nesci"), ECC's Director of Buildings and Grounds. (Def.
Stmt. at ^ 1; PI. Stmt. at ^ 1).
A.
Complaint Against Ronnie Moore
On May 10, 2011, Plaintiff submitted a letter to Defendant's then-Director of
Equity and Diversity, Darley Willis ("Willis"), complaining of alleged harassment by coworker Ronnie Moore ("Moore"), a truck driver. (Def. Stmt. at ^ 9; PI. Stmt. at ^ 9). At
her deposition. Plaintiff testified that she was "set up" and "given misinformation" that
caused her to file this complaint. (Dkt. 37-6 at 47). In particular. Plaintiff testified that
other co-workers had told her Moore had stated she could not do her job. {Id. at 48).
However, Plaintiff never personally heard Moore make such statements {id.), and she
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admits she never heard Moore say anything derogatory about her gender, nor did she ever
discuss her complaints with Moore (Def. Stmt. at ^ 11; Pi. Stmt. at ^ 11). Nonetheless,
Plaintiff never withdrew her complaint against Moore. (Def. Stmt. at ^ 11; PI. Stmt. at
If ll)-
Willis investigated Plaintiffs complaint and sent a memorandum to staff directing
them not to communicate with Plaintiff about her complaint. (Def. Stmt. at
12, 14; PI.
Stmt. at TITl 12, 14). After completing the investigation, Willis sent a letter to Plaintiff
stating that she had concluded that the "staffs conduct does not rise to the level of
actionable harassment." (Def. Stmt. at
16, 17; PI. Stmt. at
16, 17). The letter also
stated that Plaintiff was "protected from any form of retaliation for having filed this
complaint." (Def. Stmt. at T| 17; PI. Stmt. at ^ 17). Willis communicated to Plaintiffs coworkers that ECC prohibits retaliation for the filing of complaints. (Def. Stmt. at ^ 18;
PI. Stmt. at^ 18).
On June 23, 2011, Willis met with the maintenance staff and informed them of
Plaintiffs harassment complaint. (Dkt. 53-4 at 6). Willis instructed the staff not to have
any conversations about Plaintiffs work performance and not to discuss the complaint.
{Id.). In Plaintiffs timeline of events, included in her summary judgment exhibits.
Plaintiff alleges that the day after Willis' visit. Plaintiffs co-workers openly mocked her
in the break room. {Id. at 38). Plaintiff felt threatened and left work early, forgetting to
sign out. {Id.). When she returned to work a few days later, she was served with a notice
stating that she had violated ECC work rules by failing to sign out and that a note would
be included in her file. {Id.).
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B.
Complaints Against Sean Kelly
On September 16, 2011, Plaintiff emailed Willis informing her that co-worker
Sean Kelly ("Kelly") was refusing to work with her. (Def. Stmt. at ^ 19; PI. Stmt. at
^ 19). Plaintiff also complained that when she informed Anthony Vitali ("Vitali"), the
Supervising Maintenance Mechanic, about her negative interactions with Kelly, Vitali
yelled at Plaintiff to the point where Plaintiff felt ill and had to leave work. (Dkt. 53-4 at
10). Plaintiff told Vitali during this conversation that she felt she was being treated as a
second-class citizen. {Id.).
Willis later met separately with Plaintiff and Kelly about
Plaintiffs complaint. (Def. Stmt. at
21-23; PI. Stmt. at
21-23).
Over a year later, on November 14, 2012, Plaintiff emailed Goshen, Nesci, and
Willis stating that Kelly called her a "bitch" at work in front of her co-workers. (Def.
Stmt. at ^ 24; PI. Stmt. at ^ 24). Plaintiff provided Willis with a list of seven witnesses to
the incident. (Def. Stmt. at f 26; PI. Stmt. at ]| 26). On November 30, 2012, Plaintiff,
Willis, Kelly, Goshen, and Moore met to discuss Plaintiffs complaint. (Def. Stmt. at
^ 27; PI. Stmt. at ^ 27). Thereafter, on December 21, 2012, Willis sent a memo to Kelly
concluding her investigation. (Def. Stmt. at
29; PI. Stmt. at ^1 29). Willis' memo, a
copy of which was provided to Plaintiff, recommended that Kelly receive disciplinary
action. (Def. Stmt. at ^ 29; PI. Stmt. at ^ 29). Kelly was further instructed not to speak
with Plaintiff other than for work-related reasons. (Def. Stmt. at ^ 30; PI. Stmt. at ^ 30).
Plaintiff testified, during her deposition, that after December 21, 2012, Kelly was
hostile to her on a daily basis. (Dkt. 37-6 at 59). She testified that he was condescending
to her, counted the number of times she used the restroom and commented on it, and
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constantly demeaned her. {Id. at 59-63). However, there is no evidence indicating that
Plaintiff complained about Kelly's behavior after December 21, 2012, and Plaintiff
admitted that she had no recollection of having done so. (Def. Stmt. at t 32; PI. Stmt. at
1132).
C.
Application for Head Gardener Position
On September 28, 2011, Plaintiff applied for the position of head gardener at ECC.
(Def. Stmt. at ^ 35; PI. Stmt. at ^1 35). Plaintiff did not provide a copy of her pesticide
applicator license, nor did she note she had such license in her application or resume.
(Def. Stmt. at ^ 38; PI. Stmt. at ^ 38). On March 6, 2012, Eileen P. Flaherty ("Flaherty"),
ECC's then-Director of Human Resources, sent Plaintiff a letter indicating that her
application had been reviewed and that the appointments committee had determined
Plaintiff did not meet the specific qualifications for the head gardener position. (Dkt. 374 at 102).
Karl Anderson ("Anderson") was selected by ECC for the head gardener position.
(Def. Stmt. at ^ 36; PI. Stmt. at
36). Anderson attached his pesticide technical
certification to his application and referred to it on his resume. (Def. Stmt. at ^ 36; PI.
Stmt. at ^ 36). Three other male applicants were also evaluated and found not qualified
for the position. (Def. Stmt. at ^ 37; PI. Stmt. at ^ 37).
Plaintiff filed a grievance with her union regarding her rejection for the head
gardener position. (Def. Stmt. at ^ 39; PI. Stmt. at T| 39). The union denied her grievance
on the basis that she "was deemed not qualified for the position" because her application
failed to show that she met the minimum qualifications therefor. (Dkt. 37-4 at 105).
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D.
Failure to Train Allegations
Plaintiff also alleges that she was denied the opportunity to be trained, upgraded,
and promoted, while others were given the opportunity to learn additional skills. (Dkt. 1
at T124). The parties contest the facts regarding this issue. Defendant contends that ECC
offers employees the opportunity to receive additional education with a tuition waiver,
but that Plaintiff never applied for or availed herself of that opportunity. (Def. Stmt. at
^ 53). Plaintiff states that she was never informed of that opportunity, and that she
specifically asked to be put in a position where she could learn with the tradesmen. (PI.
Stmt. at II 53). However, somewhat contradictorily. Plaintiff also claims that the only
training that was ever offered was pesticide training, for which she volunteered. {Id.).
E.
Retaliation Allegations
Plaintiff asserts a claim for retaliation. In support of that claim, she has identified
various actions by ECC and its employees that she contends were retaliatory. As noted
above. Plaintiff maintains that after she made her complaint against Moore in 2011, her
co-workers openly mocked her. (Dkt. 53-4 at 38).
Plaintiff also claims that in
December 2011, Goshen forced her to move her desk into the garage, where there were
mice present. {Id. at 39). When she complained about the mice, Goshen refused to speak
with Plaintiff without her supervisor present. {Id.). Plaintiff claims she emailed Nesci to
ask why Goshen would not speak to her when he would speak to other employees, but
Nesci never replied. {Id.).
Furthermore, Plaintiff contends that she was deliberately given difficult, labor
intensive tasks, while her male co-workers were given non-labor intensive, machine-7-
based job assignments. (See Dkt. 1 at f 52). The record includes work orders for
assignments given to Plaintiff. (Dkt. 53-4 at 14-18). On November 2, 2011, Plaintiff
received a weekly standing work order stating that Plaintiff and the "garage crew are
responsible to clean/sweep and organize the garage area and the garage equipment." (Id
at 14). On December 1, 2011, a work order requested that Plaintiff "and garage," "[o]n
days when there is extra time, utilize the time by working on cleaning up the library
basement." (Id at 16). On May 8, 2012, Plaintiff received a work order stating that the
"sterilizer on [the] loading dock needs to be moved to . . . the dental hygiene clinic. It is
very heavy and will need to be placed on a rack at least 3 feet high. It may be helpful to
remove outer shipping materials. Two strong men have lifted it before." (Id at 18).
This work order states that it is assigned to Plaintiff "[plus] garage." (Id.). In an email
from Plaintiff to her supervisor sent on May 7, 2012, Plaintiff complained that she had
been asked to clean up certain flower beds in a two-week time period. (Id. at 28).
Plaintiff stated that it would take much longer than two weeks to complete the task. (Id.).
F.
Pay Discrimination Allegations
Plaintiff contends that she was not paid equally to her male counterparts.
Plaintiffs truck driver position was classified as a Grade 4 position for purposes of
compensation and other benefits. (Def. Stmt. at ^ 42; PI. Stmt. at Tf 42). However, ECC
employees are sometimes required to work down to a lower job grade, because work is
assigned to whichever employee is available at the discretion of a supervisor. (Def. Stmt.
at ^41; PI. Stmt. at ^41).
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Additionally, according to Defendant, depending on the financial resources and
workload needs of ECC, Nesci may determine that a truck driver shall receive "out-oftitle" or "variance" pay that is granted as a pay upgrade to perform "higher" duties that
are not in the truck driver's job description. (Def. Stmt. at ^ 43). Defendant contends
that the awarding of this kind of variance pay is not governed by the Collective
Bargaining Agreement ("CBA") related to Plaintiffs employment with ECC, but
Plaintiff disagrees. (Def. Stmt. at ^ 44; PI. Stmt. at ^ 44). She notes that the CBA
provides that "[t]he Employer shall give employees preferential selection by seniority in
available job assignments where and when in its sole and exclusive discretion it seems
practicable." (PI. Stmt. at ^ 43; Dkt. 53-4 at 42).
In January and February 2012, two male truck drivers received Grade 7 variance
pay. (Dkt. 37-4 at 128-130). In March 2012, Plaintiff received Grade 7 variance pay,
which continued for several years. (Def. Stmt. at ^ 49; PI. Stmt. at ^ 49). The less senior
male employees whom Plaintiff alleges were promoted to Grade 7 pay, in fact, like
Plaintiff, received a variance for performing out-of-title work. (Def. Stmt. at ^ 50; PI.
Stmt. at ^ 50).
DISCUSSION
I.
Standard of Review for Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
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the light most favorable to the nonmoving party, the court finds that no rational jury
could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Once
the moving party has met its burden, the opposing party "must do more than simply show
that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party
must come forward with specific facts showing that there is a genuine issue for trial."
Caldarola v. Calabrese, 298 F.3d 156, 160(2d Cir. 2002)(quoting Matsushita Elec., 475
U.S. at 586-87). "[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
11.
Title VII Gender Discrimination Claims
A.
Legal Standard
Discrimination claims under Title VII are governed by a three-step burden shifting
analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106-07 (2d Cir. 2010). Plaintiff bears
the initial burden of proving a primafacie case of discrimination by a preponderance of
the evidence. To establish a prima facie case of gender discrimination under Title VII,
the plaintiff must prove that:(1) she was within the protected class;(2)she was qualified
for the position and was satisfactorily performing her duties; (3) she was subject to an
adverse employment action; and (4) the adverse action occurred under circumstances
giving rise to an inference of discrimination. See Terry v. Ashcroft, 336 F.3d 128, 137-38
(2d Cir. 2003); Sotomayor v. City of New York, 862 F. Supp. 2d 226, 253 (E.D.N.Y.
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2012), aff'd, 713 F.3d 163 (2d Cir. 2013).
Although "[a] plaintiffs burden of
establishing a prima facie case is de minimis"' at the summary judgment stage, AbduBrisson v. Delta Air Lines, Inc., 239 F.3d 456, 467(2d Cir. 2001), "[a]jury cannot infer
discrimination from thin air," Ikejiaku v. Rochester City Sch. Dist., No. 07-CV-6191,
2011 WL 1099131, at *5 (W.D.N.Y. Mar. 22, 2011)(quoting
v. Sam's Club, 145
F.3d 114(2d Cir 1998)).
To demonstrate that she suffered an adverse employment action. Plaintiff must
show a "materially adverse change in the terms and conditions of employment."
Galabya v. N.Y.C. Ed. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation
marks omitted). The change must be "more disruptive than a mere inconvenience or an
alteration of job responsibilities." Terry, 336 F.3d at 138 (internal quotation omitted).
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." Id.(quotation omitted and alteration in original). "[Cjourts in this
circuit have found that reprimands, threats of disciplinary action and excessive scrutiny
do not constitute adverse employment actions in the absence of other negative results
such as a decrease in pay or being placed on probation." Uddin v. City ofNew York, 427
F. Supp. 2d 414, 429 (S.D.N.Y. 2006) (internal quotation omitted). Nor does an
undesirable job assignment constitute an adverse action if the assignment does not
"radically change" the nature of the work. Potash v. Fla. Union Free Sch. Dist., 972 F.
Supp. 2d 557, 584(S.D.N.Y. 2013).
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Inadequate training may constitute an adverse employment action, "but only in
circumstances where an employer denies necessary job training to an employee and the
terms and conditions of his employment are thereby harmed." Carpenter v. City of
Mount Vernon, 198 F. Supp. 3d 272, 280 (S.D.N.Y. 2016). A denial of training that
"affects the employee's opportunities for career growth or the employee's
compensation[,] ... such as failure to promote or loss of career advancement
opportunities," can demonstrate the requisite material harm. Id.
After the plaintiff has established a primafacie case of gender discrimination, the
burden then shifts to the employer to articulate "some legitimate nondiscriminatory
reason" for the disparate treatment. McDonnell Douglas, 411 U.S. at 802. If the
employer articulates such reason, the burden shifts back to the plaintiff to prove that the
employer's reason "was in fact pretext" for discrimination.
Id. at 804; Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 83(2d Cir. 2015).
B.
Limitations Period
"Title Vll requires that individuals aggrieved by acts of discrimination file a
charge with the EEOC within 180 or, in states like New York that have local
administrative mechanisms for pursuing discrimination claims, 300 days 'after the
alleged unlawful employment practice occurred.'" Vega., 801 F.3d at 78-79 (quoting 42
U.S.C. § 2000e-5(e)(l)). In Nat'lR.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002),
the Supreme Court explained that the word "practice" in the statute refers to "a discrete
act or single 'occurrence,' even when it has a connection to other acts." M at 111. Thus,
"discrete discriminatory acts are not actionable if time barred, even when they are related
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to acts alleged in timely filed charges." M at 113. However,"claims tied to discrete acts
in an ongoing adverse employment action that occurred within the limitations period are
not time-barred," Vega, 801 F.3d at 79, even if the ongoing pattern of discrimination
began outside the statutory period, id.
In this case. Plaintiff filed her EEOC charge on August 7, 2012. (Dkt. 1 at ^ 46).
Defendant argues that all of Plaintiffs allegations that occurred before October 12, 2011,
are time-barred. (Dkt. 42 at 15). Plaintiff has offered no substantive opposition to this
argument. The Court agrees with Defendant that Plaintiffs allegations of discrete
discriminatory acts occurring prior to October 12, 2011, are untimely. Therefore, the
Court has not relied upon any such untimely allegations in considering the viability of
Plaintiffs claims.
C.
Alleged Adverse Actions
1.
Rejection for Head Gardener Position
Plaintiff claims that her application for the head gardener position was rejected on
the basis of her gender. "To make a primafacie case with respect to a failure-to-promote
claim. Plaintiff must show that (1)[s]he is a member of a protected class;(2)[s]he was
qualified for the position for which the employer was seeking applications;(3)[s]he was
rejected for the position; and (4) this adverse action took place under circumstances
giving rise to an inference of discrimination." Anyanwu v. City ofNew York, No. 10 CIV.
8498 AJN THK, 2013 WL 5193990, at *11 (S.D.N.Y. Sept. 16, 2013)(citing Mandell v.
Cty. ofSuffolk, 316 F.3d 368, 377(2d Cir. 2003)). In support of its motion for summary
judgment. Defendant argues that although Plaintiffs allegation that she was not selected
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for the head gardener position constitutes an adverse employment action, she has not
alleged a prima facie case of discrimination on that basis. (Dkt. 42 at 23). Defendant
contends that Plaintiff has put forth no evidence of circumstances giving rise to an
inference of discrimination, noting that it is undisputed that three male applicants were
also found unqualified and rejected from the position. {See Def. Stmt. at ^ 37; PI. Stmt.
at ^ 37). Defendant further argues that, even if Plaintiff had established a prima facie
case of discrimination. Defendant has put forth a legitimate, non-discriminatory reason
that Plaintiff was not selected for the head gardener position, because the individual who
was hired attached his pesticide technician certification to his application and referenced
the license in his resume. Plaintiff, on the other hand, did not provide a copy of her
pesticide applicator certification or note that she possessed such a license on her
application or in her resume. {See Def. Stmt. at ^ 38; PI. Stmt. at 38).
The Court agrees that there is no genuine issue of material fact with respect to
whether Plaintiff was denied the position of head gardener on the basis of her gender. As
an initial matter. Defendant is correct that Plaintiff has failed to identify any
circumstances to support an inference of discrimination. "An inference of discrimination
can be drawn from circumstances including actions or remarks made by decisionmakers
that could be viewed as reflecting a discriminatory animus, or preferential treatment
given to employees outside the protected class." Salas v. N.Y.C. Dep't ofInvestigation,
298 F. Supp. 3d 676, 687 (S.D.N.Y. 2018)(internal quotation omitted). While "there is
no unbending or rigid rule about what circumstances allow an inference of discrimination
when there is an adverse employment decision, employees must provide at least minimal
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support for the proposition that the employer was motivated by discriminatory intent."
Id.(internal citations and quotations omitted).
Here, Plaintiff has failed to produce any evidence from which a rational jury could
conclude that the rejection of her application was motivated by unlawful discriminatory
animus. There is nothing in the record to suggest that any decisionmakers regarding the
head gardener position made any statements or took any actions that would demonstrate
discriminatory evidence. Indeed, other than a reference to the "appointments committee"
in Flaherty's letter, the record fails to identify the decisionmakers. The record also does
not show preferential treatment having been given to individuals outside the protected
class. To the contrary. Plaintiff acknowledges that three male individuals were also
determined to be unqualified for the head gardener position. Plaintiff cannot show
circumstances to support an inference of discrimination and therefore cannot make out a
primafacie case of discrimination.
Moreover, Defendant has put forth a non-discriminatory reason for denying
Plaintiff the head gardener position, and Plaintiff has failed to establish that there is an
issue of material fact with respect to whether that reason was pretextual. As discussed
above, Anderson, the individual who was selected for the head gardener position,
attached to his application documentation showing that he was certified by the New York
State Department of Environmental Conservation as a pesticide technician. (Dkt. 37-4 at
60). Anderson also noted this certification in his resume. {Id. at 58). Plaintiff, on the
other hand, admittedly did not include a copy of her pesticide applicator certification with
her application, and her resume makes no mention of it either. {Id. at 90).
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Plaintiff argues that ECC should have known that she was a certified pesticide
applicator, despite the fact that she failed to state as such in her application. However,
Defendant has submitted documentation indicating that at ECC,"Human Resources and
hiring committees can only consider qualifications and materials either submitted to HR
with the application, or present in the personnel file and referred to on the application....
It is the applicant's responsibility to submit or draw attention to their own qualifications
when they apply to a job at ECC." {Id. at 103). Plaintiff has failed to identify or produce
any evidence to demonstrate that ECC, in fact, considered materials outside the
application with respect to any other candidate. On these facts, no reasonable jury could
conclude that Defendant's stated reason for hiring Anderson as head gardener over
Plaintiff was a pretext for gender discrimination. Accordingly, Defendant is entitled to
summary judgment with respect to Plaintiffs claim that she was denied the head
gardener position on the basis of her gender. See El Sayed v. Hilton Hotels Corp., 627
F.3d 931, 933 (2d Cir. 2010)(affirming grant of summary judgment and noting that "a
plaintiff must come forward with some evidence of pretext in order to raise a triable issue
of fact").
2.
Denial of Training
Turning to Plaintiffs claim that she was denied opportunities for additional job
training on the basis of her gender. Defendant argues that the record shows that Plaintiff
was not in fact denied any such opportunities and that, even assuming she had been, she
did not suffer material harm from any such denial. (Dkt. 42 at 19). The Court agrees that
Plaintiff has failed to identify evidence from which a reasonable jury could conclude she
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had been denied training.
The evidence of record demonstrates that ECC offers
employees the opportunity to receive education in building trades (which Defendant does
not define) with a tuition waiver, but Plaintiff never applied for or availed herself of that
opportunity. (See Dkt. 37-1 at ^ 18). Plaintiff does not dispute that she never applied for
additional training, but rather states that she was never informed of the tuition waiver
policy. (PI. Stmt. at ^ 53). Furthermore, Plaintiff acknowledged at her deposition that
she never asked to learn electrical work and does not remember whether she asked to
leam carpentry skills. (Dkt. 37-6 at 46-47).
While Plaintiff also stated during her
deposition that she "asked to be put in a position where [she] could leam with the
tradesmen, like the other gentlemen were doing, to get myself in line for a promotion"
(id. at 47), she failed to provide any additional detail regarding this request, such as when
and to whom it was made, or the identity of the "other gentlemen" who were allegedly
receiving training.
Allegations of a denial of training that are "vague and unsupported" are
insufficient to defeat a motion for summary judgment. Rodriguez v. Long Island Am.
Water, Inc., No. 12-CV-2970 JFB ARE, 2014 WL 4805021, at *14 (E.D.N.Y. Sept. 26,
2014). Moreover, and as Defendant correctly points out, "[w]hen an employee cannot
show material harm from a denial of training, such as a failure to promote or a loss of
career advancement opportunities, there is no adverse employment action." Hill v.
Rayboy-Brauestein, 467 F. Supp. 2d 336, 352(S.D.N.Y. 2006). In this case. Plaintiff has
failed to identify any specific training she was denied or any specific promotions or
career advancement opportunities that were unavailable to her because she had allegedly
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not been trained.
Plaintiffs vague allegations that she was not afforded training
opportunities are insufficient to support a gender discrimination claim. See id. at 354
(summary judgment was appropriate where there was "no evidence that [the plaintiff]
suffered a loss of pay, a change in responsibility, or any other adverse employment action
because of her allegedly inadequate training"). For the foregoing reasons, the Court
grants summary judgment to Defendant with respect to Plaintiffs claim that she was
unlawfully denied training on the basis of her gender.
II.
Hostile Work Environment
Plaintiff also claims that she was subjected to a hostile work environment. "[T]o
prevail on a hostile work environment claim under Title VII, a plaintiff must make a
primafacie showing that her workplace was permeated with 'discriminatory intimidation,
ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment,' and show a specific
basis for imputing the conduct that created the hostile work environment to her
employer." McCullough v. Xerox Corp., 942 F. Supp. 2d 380, 385 (W.D.N.Y. 2013)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). "The test for hostile work
environment has both an objective and a subjective component: A work environment will
be considered hostile if a reasonable person would have found it to be so and if the
plaintiff subjectively so perceived it." Mormol v. Costco Wholesale Corp., 364 F.3d 54,
58(2d Cir. 2004)(internal quotation marks omitted).
Whether a reasonable person would find a given work environment to be
hostile depends on the totality of the circumstances; [c]onsiderations
include: (1) the frequency of the conduct,(2) the severity of the conduct,
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(3) whether the conduct is physically threatening or humiliating, or a mere
offensive utterance, and (4) whether the conduct unreasonably interferes
with the employee's work performance.
Id.(internal quotation omitted). Summary judgment on a hostile work environment claim
is only appropriate if the Court concludes "as a matter of law that no rational juror could
view [the defendant's] conduct as ... an intolerable alteration of[the plaintiffs] working
conditions." Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001) (quotation
omitted and alterations in original).
In assessing whether there is a basis for imputing the harassing conduct to the
employer, the Supreme Court has held that "an employer's liability for [workplace]
harassment may depend on the status of the harasser." Vance v. Ball State Univ., 570
U.S. 421,424(2013). "If the harassing employee is the victim's co-worker, the employer
is liable only if it was negligent in controlling working conditions. In cases in which the
harasser is a 'supervisor,' however, different rules apply." Id.
In support of its motion for summary judgment. Defendant argues that the alleged
conduct in this case was not severe or pervasive. (Dkt. 42 at 29). Defendant contends
that, at worst. Plaintiff has alleged petty workplace grievances and personality conflicts
that almost all workers experience. {Id. at 31). Defendant further argues that there is no
basis for imputing any allegedly harassing conduct by Plaintiffs co-workers to ECC. {Id.
at 32-34).
The Court finds that Defendant is entitled to summary judgment on Plaintiffs
hostile work environment claim. As an initial matter, the Court notes that Plaintiffs
allegations regarding Moore are time-barred and cannot form the basis for a hostile work
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environment claim. Plaintiff initially complained about Moore's conduct on May 10,
2011, and the investigation into the matter concluded on August 2, 2011. (Def. Stmt. at
10-18; PI. Stmt. at
10-18). As discussed above, under the applicable limitations
period. Plaintiff may only pursue claims that arose after October 12, 2011. Moreover,
while "consideration of the entire scope of a hostile work environment claim, including
behavior alleged outside the statutory period, is permissible for the purpose of assessing
liability, so long as an act contributing to that hostile work environment takes place
within the statutory time period," Early v. Wyeth Pharm., Inc., 603 F. Supp. 2d 556, 572
(S.D.N.Y. 2009), Plaintiff has alleged no facts to suggest that her allegations regarding
Moore are related to her hostile work environment allegations that occurred during the
relevant time period. Accordingly, the Court finds that Plaintiffs allegations regarding
Moore do not support a hostile work environment claim.
Turning to Plaintiffs allegations from within the statutory period, the Court finds
Plaintiff has met her initial burden of making a prima facie showing of a hostile work
environment. Plaintiff testified that her co-worker Kelly made frequent and pervasive
hostile and offensive comments, including calling her a bitch, tracking her use of the
restroom, and stating that she was incapable of performing her job and that a "girl"
should not be in the garage. {See Dkt. 37-6 at 59-63). According to Plaintiffs deposition
testimony, Kelly's inappropriate comments occurred on a daily basis. {See Dkt. 37-6 at
59).
A trier of fact could reasonably conclude that Kelly's daily comments and tracking
of Plaintiffs restroom use pervaded her work environment and altered the conditions of
her employment. See Piston v. Cty. ofMonroe, No. 08-CV-6435P, 2012 WL 4490652,
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at *10 (W.D.N.Y. Sept. 27, 2012)(repeated inappropriate comments, including calling
the plaintiff a bitch on one occasion, could constitute "conduct sufficiently severe and
pervasive to constitute a gender-based hostile work environment").
The Court notes that Plaintiff has also made other allegations related to her work
environment, including that she was required to move her desk to the garage and that she
was given labor-intensive work assignments. However, these allegations do not rise to
the level of altering the conditions of Plaintiffs employment or creating an abusive
working environment. The evidence in the record indicates that Plaintiff only spotted
mice in her work space one time. "Isolated incidents or episodic conduct will not support
a hostile work environment claim." Richardson v. N.Y. State Dept. Corr. Serv., 180 F.3d
426, 440 (2d Cir. 1999). Moreover, the fact that Plaintiff allegedly received labor-
intensive job assignments does not demonstrate that Plaintiff faced discriminatory
treatment because Plaintiff has not produced evidence to support the conclusion that male
truck drivers received easier assignments. To the contrary, the work orders in the record
indicate that they are for Plaintiff and the rest of the garage crew. (See Dkt. 53-4 at 14-
18). "While facially neutral incidents may be considered among the totality of the
circumstances ... in any hostile work environment claim, there must be a circumstantial
or other basis for inferring that incidents sex-neutral on their face were in fact
discriminatory." Cristofaro v. Lake Shore Cent. Sch. Dist., 473 F. App'x 28, 30 (2d Cir.
2012) (internal quotations omitted). There is no such basis here. Accordingly, the
viability of Plaintiffs hostile work environment claim turns on whether Kelly's
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misconduct can be imputed to Defendant. The Court concludes that it cannot, for the
reasons discussed below.
Because Kelly was Plaintiffs co-worker, and not a supervisor. Defendant is only
liable for his creation of a hostile work environment if it was negligent in controlling
working conditions. See Vance, 510 U.S. at 424. The record in this case does not
support such a conclusion. To the contrary, the uncontroverted evidence shows that
Defendant treated Plaintiffs complaints against Kelly seriously. (See Dkt. 42 at 33).
Willis investigated Plaintiffs complaints promptly and took corrective action, (/d).
After Plaintiffs first complaint conceming Kelly, Willis visited the workplace and met
with both Plaintiff and Kelly. (Dkt. 37-3 at
19-23). Willis instructed Kelly to speak to
Plaintiff only about work-related matters. (M at ^ 22). When Plaintiff later emailed
Willis about Kelly calling her a "bitch," Willis requested the names of witnesses and held
a meeting with Kelly, Nesci, and Goshen about Plaintiffs complaint. (Id at ^ 28).
Approximately three weeks later, Willis sent a memo to Kelly stating that Plaintiff had
provided written documentation that Kelly was still complaining about and discussing
Plaintiff with other co-workers and recommending that Kelly receive disciplinary action.
(Id at ^ 30). Willis provided Plaintiff with a copy of that memo. (Id).
Where supervisors are not involved in misconduct, complaints are swiftly
investigated, and disciplinary action is taken, wrongdoing by co-workers cannot be
imputed to an employer. See Curtis v. Citibank, N.A., 70 F. App'x 20, 22(2d Cir. 2003)
(affirming grant of summary judgment where employer swiftly investigated and punished
those involved in circulating offensive email, because misconduct could not be imputed
-22-
to the employer under those circumstances). Moreover, while Plaintiff claims that
Kelly's misconduct continued after issuance of the memo, she acknowledges that she
made no further complaints to Defendant after that time. (Def. Stmt. at ^ 32; PI. Stmt. at
^ 32). Defendant cannot be held liable for misconduct of which it was not aware and had
no opportunity to remedy. See Ford v. N.Y.C. Dep't ofHealth & Mental Hygiene, 545 F.
Supp. 2d 377, 394 (S.D.N.Y. 2008). As a result of the foregoing reasons, there are no
disputed issues of material fact concerning the hostile work environment claim.
Therefore, Defendant's motion for summary judgment is granted with respect to
Plaintiffs hostile work environment claim.
IV.
Pay Discrimination Claim
Plaintiff also claims that she was paid different wages on the basis of her gender.
To establish a valid claim for gender-based wage discrimination under Title VII, a
plaintiff must demonstrate "a disparate impact from use of a facially neutral employment
practice ... or present evidence of intentional sex-based wage discrimination." Aldrich
V. Randolph Cent. Sch. Dist., 963 F.2d 520, 528 (2d Cir. 1992). Plaintiff has failed to
satisfy either of these standards in this case. First, Plaintiff does not allege the existence
of a facially neutral employment practice that disparately impacted her, nor does the
record evidence indicate that such a practice existed.
Second, Plaintiffs intentional discrimination theory—^that she was denied a
promotion to Grade 7 pay when males with less seniority received promotions (see Dkt. 1
at
44-45)—is contradicted by the evidence of record. Plaintiff alleges that her male
co-workers received their "promotion" to Grade 7 pay on January 23, 2012, and that she
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requested a promotion to Grade 7 on February 21, 2012. (Dkt. 1 at
44-45). However,
Plaintiff admits that she was granted a pay variance in March 2012, based on the
recommendation of her supervisor. (Def. Stmt. at ^ 49; PI. Stmt. at ^ 49). Like Plaintiff,
the male co-workers who received Grade 7 pay had received pay variances. (Def. Stmt.
at 50; PI. Stmt. at ^ 50). Thus, the undisputed evidence demonstrates that Plaintiff was
treated substantially the same as her male workers with respect to the allegations
regarding Grade 7 pay.
At oral argument on the instant motion. Plaintiffs counsel suggested that
Plaintiffs pay discrimination claim is based on Plaintiffs alleged downward departure
from Grade 7 pay sometime after 2012. However, there are no allegations or arguments
based on that incident in the record or the parties' papers, nor has Plaintiff produced or
identified any evidence to support the claim that she was downwardly departed and her
male co-workers were not.
Plaintiffs counsel also confirmed that Plaintiff is not
pursuing a pay discrimination claim based on her allegations that male colleagues were
upgraded to Grade 5 pay in 2011 and Plaintiff was refused an upgrade. Any claim based
on those allegations would be time-barred in any event.
Based on the instant facts, the Court concludes that no reasonable trier of fact
could conclude that Plaintiff received disparate pay on the basis of her gender. The
evidence of record instead shows that Plaintiff received a pay variance when she
requested it, at roughly the same time as her male co-workers. Plaintiffs belated
assertion that she was subsequently downwardly departed from Grade 7 cannot sustain
her claim, because she has failed to present any evidence to support it. See Maier-Schule
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GMC, Inc. V. Gen. Motors Corp. (GMC Truck & Bus Grp.), 154 F.R.D. 47, 57
(W.D.N.Y. 1994)("The summary judgment inquiry . . . scrutinizes the plaintiffs case to
determine whether the plaintiff has proffered sufficient proof, in the form of admissible
evidence, that could carry the burden of proof of his claim at trial.") (internal quotation
omitted). Thus, Defendant's motion for summary judgment is granted with respect to
Plaintiffs pay discrimination claim.
V.
Retaliation
Finally, the Court must consider whether a reasonable jury could find for Plaintiff
with respect to her claim of retaliation. Title VII contains an anti-retaliation provision
that makes it unlawful '"for an employer to discriminate against any . . . employee[] or
applicant[] . . . because [that individual] opposed any practice' made unlawful by Title
VII or 'made a charge, testified, assisted, or participated in' a Title VII investigation or
proceeding." Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)(quoting 42 U.S.C.
§ 2000e-2(a)). Retaliation claims are evaluated pursuant to a three-step burden-shifting
analysis. Id. First, the plaintiff must establish a prima facie case by showing: "(1)
participation in a protected activity;(2) that the defendant knew of the protected activity;
(3) an adverse employment action; and (4) a causal connection between the protected
activity and the adverse employment action." Id. "The plaintiffs burden in this regard is
de minimis, and the court's role in evaluating a summary judgment request is to
determine only whether proffered admissible evidence would be sufficient to permit a
rational finder of fact to infer a retaliatory motive." Id.
25 -
If the plaintiff sustains her initial burden, a presumption of retaliation arises and
the defendant must then "articulate a legitimate, non-retaliatory reason for the adverse
employment action." Id. If the defendant can do so, "the presumption of retaliation
dissipates and the employee must show that retaliation was a substantial reason for the
adverse employment action." Id. A plaintiff can sustain that burden by proving that "a
retaliatory motive played a part in the adverse employment actions even if it was not the
sole cause." Id. ,
Actions are "materially adverse" for purposes of a retaliation claim if they are
"harmful to the point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination." Hicks, 593 F.3d at 165. In Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53(2006), the Supreme Court considered whether, in
a Title VII retaliation case, there must be a link between the challenged retaliatory action
and the terms, conditions, or status of employment, as is required under the
antidiscrimination provision of Title VII. Id. at 61. The Supreme Court noted that the
anti-retaliation provision does not contain the same limiting language as the substantive
provision. Title VITs core antidiscrimination provision provides:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges ofemployment, because of such individual's race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
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status as an employee, because of such individual's race, color, religion,
sex, or national origin.
§ 2000e-2(a)(emphasis added). Meanwhile, the anti-retaliation provision provides:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for employment
... because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.
§ 2000e-3(a) (emphasis added). Based on the different language used in the two
provisions, the Supreme Court concluded that "the antiretaliation provision, unlike the
substantive provision, is not limited to discriminatory actions that affect the terms and
conditions of employment." White, 548 U.S. at 64. Even so, the Second Circuit has held
that "petty slights and minor annoyances" are not materially adverse for purposes of a
Title VII retaliation claim. Rivera v. Rochester Genesee Reg'I Transp. Auth., 743 F.3d
11,24-25(2d Cir. 2014).
When deciding a summary judgment motion as to a Title VII retaliation claim, in
addition to considering alleged acts of retaliation on their own, courts must consider them
in the aggregate, "as even minor acts of retaliation can be sufficiently 'substantial in
gross' as to be actionable." Bowen-Hooks v. City ofNew York, 13 F. Supp. 3d 179, 225
(E.D.N.Y. 2014)(quoting Hicks, 593 F.3d at 165); see also Zelnik v. Fashion Inst. of
Tech., 464 F.3d 217, 227(2d Cir. 2006)("[T]his ridicule was considered a part of a larger
campaign of harassment which though trivial in detail may have been substantial in gross,
and therefore was actionable."(internal quotation marks omitted)).
27-
In this case, Defendant argues that Plaintiff has not alleged a materially adverse
employment action and that the only potentially adverse action that Plaintiff has alleged
is the rejection of her application for the head gardener position, for which it has
articulated a non-retaliatory rationale. (Dkt. 42 at 26-27). According to Defendant,
Plaintiffs other allegations do not rise to the level of materially adverse actions, and
Defendant is therefore entitled to judgment in its favor on Plaintiffs retaliation claim.
The Court agrees with Defendant that Plaintiffs rejection for the head gardener
position was not retaliatory. As discussed above, even if Plaintiff could establish a prima
facie case. Defendant had a legitimate, non-retaliatory reason for choosing to hire
Anderson for that position rather than Plaintiff, and Plaintiff has failed to raise a material
issue of fact that the offered justification was pretextual. The record evidence (which, as
the Court previously noted, does not even identify the ultimate decisionmakers regarding
the head gardener position) is insufficient to support the conclusion that Plaintiff was
denied the head gardener position for retaliatory reasons.
However, the Court agrees with Plaintiff that although the other alleged wrongful
conduct to which she was subjected may have been minor when viewed in isolation, it
was sufficiently "substantial in gross," Hicks, 593 F.3d at 165, to sustain a retaliation
claim. The record contains numerous examples of mistreatment following Plaintiffs
complaints to Willis and the EEOC that, taken together, are sufficient to survive
summary judgment with respect to Plaintiffs retaliation claim. These examples include
being forced by her supervisor Goshen to move her desk into an area where there were
mice present, her supervisor Nesci's refusal to speak to Plaintiff when he freely spoke
-28-
with other employees, being required to perform tasks in an unreasonable amount of
time, and being yelled at to the point that it made her feel sick. The Court finds that,
considered in the aggregate, this mistreatment could very well "dissuade a reasonable
worker from making or supporting a charge of discrimination." Hicks, 593 F.3d at 169.
The Court further concludes that the proffered evidence would be sufficient to
permit a rational finder of fact to infer a retaliatory motive. The incidents were close in
time to Plaintiffs protected activity—for example, roughly two months elapsed between
Plaintiffs September 2011 complaint against Kelly, Goshen's insistence that she move
her desk and refusal to speak to Plaintiff without Nesci present, and Nesci's failure to
respond to Plaintiffs attempts to discuss the issue with him. Similarly, the incident in
which Vitali yelled at Plaintiff so severely that she felt ill was in direct response to
Plaintiff having reported to Vitali that she felt she was being treated like a second-class
citizen. {See Dkt. 53-4 at 10).^ "[T]emporal proximity of events may give rise to an
inference of retaliation for the purposes of establishing a prima facie case of retaliation
under Title VII." Eraser v. MTA Long Island Rail Rd., 301 F. Supp. 3d 105, 116
(E.D.N.Y. 2018)(internal quotation omitted). The Court thus finds that Plaintiff has met
her de minimus burden of establishing a primafacie case of retaliation.
3
While this incident happened in September 2011, outside the limitations period, it
is part of a pattem of treatment and is relevant evidence of the alleged retaliatory
motivations of Plaintiffs supervisors. See Jute v. Hamilton Sundstrand Corp., 420 F.3d
166, 176 (2d Cir. 2005)("relevant background evidence, such as . . . earlier decisions
typifying the retaliation involved, may be considered to assess liability on the timely
alleged act").
-29-
Defendant has not proffered any legitimate, non-retaliatory reasons for the alleged
mistreatment described above, having limited its argument to contending that the
mistreatment did not rise to the level of an adverse employment action. Accordingly, the
Court need not consider whether any such reasons were pretextual, and the Court's
inquiry into whether summary judgment is warranted is ended.
For the foregoing reasons. Defendant's motion for summary judgment is denied
with respect to Plaintiffs retaliation claim. However, at the trial of this matter. Plaintiff
shall not be permitted to argue that the denial of the head gardener position was
retaliatory, for the reasons discussed above, but shall be limited to relying on her other
allegations of misconduct.
CONCLUSION
For the foregoing reasons. Defendant's motion for summary judgment (Dkt. 37) is
granted in part and denied in part. In particular. Defendant's motion is denied with
respect to Plaintiffs retaliation claim but is granted with respect to all other claims.
SO ORDERED.
District
DATED:
September 17, 2018
Rochester, New York
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