Kasperek v. New York State, Department of Corrections and Community Supervision

Filing 78

DECISION AND ORDER: The Court accepts and adopts the 68 Report and Recommendation. DOCCS's motion for summary judgment, Docket Item 56 , is GRANTED in part and DENIED in part. The parties shall contact the Court within 30 days of the date of this order to schedule a status conference so that the Court can set a trial date. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 3/8/2022. (WMH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHELE L. KASPEREK,
Plaintiff,
v.
NEW YORK STATE, DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION,

16-CV-671-LJV-MWP
DECISION & ORDER

Defendant.

On August 18, 2016, the plaintiff, Michele Kasperek, commenced this action
against her then-employer, the New York State Department of Corrections and
Community Supervision (“DOCCS”). Docket Item 1. Kasperek alleges that she was
subjected to a hostile work environment, sex discrimination, and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 1 Docket Item 14.
On November 1, 2016, the case was referred to United States Magistrate Judge Hugh
B. Scott for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B), Docket Item 12,
and on March 5, 2021, the case was reassigned to United States Magistrate Judge
Marian W. Payson, Docket Item 60.
On February 5, 2021, DOCCS moved for summary judgment. Docket Item 56.
Kasperek responded on April 5, 2021, Docket Item 62, and DOCCS replied on April 9,
2021, Docket Item 63. Kasperek then filed a supplemental statement of undisputed
Kasperek previously asserted sex discrimination and retaliation claims under
the New York Human Rights Law, see Docket Item 1 at 11-14, but she later amended
her complaint to assert claims only under Title VII, see Docket Item 14.
1

facts on April 28, 2021, Docket Item 65, and DOCCS responded to that supplemental
statement on May 3, 2021, Docket Item 66.
On August 31, 2021, Judge Payson issued a Report and Recommendation
(“R&R”) finding that DOCCS’s motion should be granted in part and denied in part.
Docket Item 68. More specifically, Judge Payson recommended allowing Kasperek’s
hostile work environment claim to proceed but granting DOCCS’s motion for summary
judgment on her remaining claims. Id.
Both parties objected to the R&R on September 30, 2021. Docket Items 71, 72.
Kasperek objected to Judge Payson’s finding that none of the alleged retaliatory acts
were sufficient to raise a material issue of fact about whether she suffered a cognizable
adverse employment action. Docket Item 71. DOCCS argued that Judge Payson erred
in concluding that there were issues of fact as to whether Kasperek was subjected to an
objectively hostile work environment based on her gender and whether DOCCS’s
remedial responses were sufficient. Docket Item 72. DOCCS responded to Kasperek’s
objection on October 15, 2021, Docket Item 74, and Kasperek responded to DOCCS’s
objection on October 22, 2021, Docket Item 75. Both parties replied on November 5,
2021. Docket Items 76, 77.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
This Court has carefully and thoroughly reviewed the R&R; the record in this
case; the objections, responses, and replies; and the materials submitted to Judge

2

Payson. Based on that review, the Court adopts Judge Payson’s recommendation to
grant DOCCS’s motion in part and deny it in part. 2
FACTUAL BACKGROUND
Kasperek was employed by DOCCS as a teacher from 1990 to 2020. 3 Docket
Item 56-2 at ¶¶ 15, 17; Docket Item 65 at ¶¶ 15, 17. This suit pertains to events that
occurred when she taught at the Gowanda Correctional Facility (“Gowanda”) between
October 31, 2012, and November 2015. Docket Item 56-2 at ¶¶ 4, 10; Docket Item 65
at ¶¶ 4, 10. Specifically, Kasperek alleges that depictions of penises were left on or
around her classroom door on seven occasions. See Docket Item 56-2 at ¶ 49 (first
incident on October 31, 2012); Docket Item 65 at ¶ 48 (same); Docket Item 56-2 at ¶ 67
(second incident on November 1, 2012); Docket Item 65 at ¶ 66 (same); Docket Item
56-2 at ¶ 72 (third incident on February 12, 2013, which included a drawing of an
ejaculating penis on Kasperek’s classroom door); Docket Item 65 at ¶ 71 (same);
Docket Item 56-4 at 35 (testifying that the February 2013 drawing was of a penis
ejaculating over her name); Docket Item 56-2 at ¶ 74 (fourth incident on March 18,
2014); Docket Item 65 at ¶ 73 (same); Docket Item 56-2 at ¶ 115 (fifth incident on June

Judge Payson recommended granting DOCCS’s motion for summary judgment
on Kasperek’s sex-discrimination claim. Docket Item 68 at 27-28. Because Kasperek
did not object to that recommendation, see Docket Item 71 at 2, this Court need not
review it, see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In any event, this Court
agrees with Judge Payson that this claim should be dismissed.
2

The Court assumes familiarity with the facts of the case as set forth in the R&R.
Accordingly, the Court provides only a brief recitation of the facts relevant to the parties’
objections. Because this is a motion for summary judgment, this Court construes the
facts in the light most favorable to the non-moving party. See Collazo v. Pagano, 656
F.3d 131, 134 (2d Cir. 2011).
3

3

2, 2014); Docket Item 65 at ¶ 114 (same); Docket Item 56-2 at ¶ 133 (sixth incident on
December 16, 2014, when Kasperek found a drawing of an ejaculating penis near the
shared employee elevator); Docket Item 65 at ¶ 132 (same); Docket Item 56-2 at ¶ 162
(seventh incident on March 11, 2015, which involved a foam penis sticker found on
Kasperek’s classroom door); Docket Item 65 at ¶ 161 (same).
Kasperek reported every incident. Docket Item 56-2 at ¶¶ 50, 68, 72, 75, 115,
133, 162; Docket Item 65 at ¶¶ 49, 67, 71, 74, 114, 132, 161. Each drawing on
Kasperek’s classroom door was later painted over—either by an “inmate paint crew” or
maintenance staff. Docket Item 56-2 at ¶¶ 51, 57, 69, 73, 75, 80, 115; Docket Item 65
at ¶¶ 50, 56, 68, 72, 74, 79, 114.
On March 19, 2014, after the fourth graffiti incident, Kasperek filed discrimination
and harassment complaints with DOCCS’s Office of Diversity Management and with the
Gowanda superintendent. Docket Item 56-2 at ¶¶ 88, 90; Docket Item 65 at ¶¶ 87, 89.
On April 25, 2014, the Gowanda superintendent issued a memorandum to all staff
“reminding them of DOCCS’s no-tolerance policy with respect to sexual discrimination,
harassment, and retaliation.” Docket Item 56-2 at ¶ 102; Docket Item 65 at ¶ 101. After
the fifth incident, Gowanda implemented a new action plan which included, among other
items, checking Kasperek’s classroom area before Kasperek arrived at work, additional
checks of the area, removal of graffiti by maintenance or other staff rather than by the
inmate paint crew, and an offer to move Kasperek’s classroom. Docket Item 56-2 at
¶¶ 117, 118; Docket Item 65 at ¶ 117.
Kasperek also received two harassing phone calls at work on January 7, 2015.
Docket Item 56-2 at ¶ 147; Docket Item 65 at ¶ 146. During the first call, an anonymous

4

caller called her a “cunt” and hung up the phone. Docket Item 56-2 at ¶ 147; Docket
Item 65 at ¶ 146. During the second call, an anonymous caller stated, “Watch your
back, bitch.” Docket Item 56-2 at ¶ 147; Docket Item 65 at ¶ 146. Kasperek reported
both those incidents as well. Docket Item 56-2 at ¶ 148; Docket Item 65 at ¶ 147.
After Kasperek reported the January 2015 phone calls to her supervisor and to
security staff, Gowanda referred the reports to DOCCS’s Office of Special Investigations
(“OSI”). Docket Item 56-2 at ¶ 149; Docket Item 65 at ¶ 148. OSI’s investigation
concluded that the calls were made from within the facility, Docket Item 56-2 at ¶ 153;
Docket Item 65 at ¶ 152, but the investigation into who made the calls was discontinued
as inconclusive, Docket Item 56-2 at ¶ 155; Docket Item 65 at ¶ 154. DOCCS asserts
that nearly all employees working in the area would have had access to the phone
linked to the calls, Docket Item 56-2 at ¶ 153, but Kasperek claims that only three
employees had access to that phone, Docket Item 65 at ¶ 152.
After Kasperek found the foam penis sticker on her door on March 11, 2015, her
classroom was moved to a more secure location. Docket Item 56-2 at ¶ 166; Docket
Item 65 at ¶ 165. Once she moved, Kasperek was no longer subjected to drawings or
graffiti in her work area and the threatening phone calls stopped. Docket Item 56-2 at
¶ 169; Docket Item 65 at ¶ 168. In August 2015, however, “graffiti concerning
[Kasperek] (including several drawings of penises and sexually explicit statements) was
found in [an] inmate bathroom.” Docket Item 56-2 at ¶ 176; Docket Item 65 at ¶ 175.
LEGAL PRINCIPLES
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
5

matter of law.” Fed. R. Civ. P. 56(a). The movant—that is, the party seeking summary
judgment—has the initial burden of showing that there is no genuine dispute of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant may
satisfy this burden by relying on evidence in the record, “including depositions,
documents, . . . [and] affidavits,” Fed. R. Civ. P. 56(c)(1)(A), or by “point[ing] to an
absence of evidence to support an essential element of the nonmoving party’s claim,”
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing
Celotex, 477 U.S. at 322-23); see Fed. R. Civ. P. 56(c)(1)(B). Once the movant has
satisfied its initial burden, “the nonmoving party must come forward with specific facts”
showing that there is a genuine dispute of material fact. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). If the
nonmovant fails to carry this burden, the court may grant summary judgment. See
Celotex, 477 U.S. at 322-23.
A material fact is one that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine
dispute of material fact exists “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id. “[T]he court must view the evidence in the
record in the light most favorable to the non-moving party” and must draw “all
reasonable inferences in that party’s favor.” Abdu-Brisson v. Delta Air Lines, Inc., 239
F.3d 456, 466 (2d Cir. 2001). But “conclusory statements, conjecture, or speculation by
the party resisting the motion will not defeat summary judgment.” Kulak v. City of New
York, 88 F.3d 63, 71 (2d Cir. 1996).

6

DISCUSSION
I.

HOSTILE WORK ENVIRONMENT
Judge Payson recommended denying DOCCS’s motion for summary judgment

on Kasperek’s hostile work environment claim because she found that Kasperek had
raised a genuine dispute about whether her working conditions were objectively hostile
and whether DOCCS was responsible for those conditions. Docket Item 68 at 12-27.
DOCCS argues that Judge Payson erred on both counts. See Docket Item 72 at 5.
This Court agrees with Judge Payson.
“[M]istreatment at work[] . . . is actionable under Title VII only when it occurs
because of an employee’s sex[] or other protected characteristic.” Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001). “[C]ourts have consistently emphasized that the
ultimate issue is the reason[] for the individual plaintiff’s treatment, not the relative
treatment of different groups within the workplace.” Id. (emphasis in original). “As a
result, discrimination against one employee cannot be cured, or disproven, solely by
favorable, or equitable, treatment of other employees of the same” sex. Id.
To succeed on a hostile work environment claim, a plaintiff must establish: “[1]
that the harassment was sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment[;] and [2] that a specific basis
exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294
F.3d 365, 373 (2d Cir. 2002) (citation and internal quotation marks omitted). In
conducting this analysis, “[c]ourts consider the totality of the circumstances, including:
the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
7

interferes with the victim’s job performance.” Lax v. City Univ. of N.Y., 2022 WL
103315, at *2 (2d. Cir. Jan. 11, 2022) (summary order) (citation and internal quotation
marks omitted). The test 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 v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir.
2014) (citation and internal quotation marks omitted). 4
A.

Because of Sex

As a threshold issue, this Court must consider whether the alleged harassment
was based on a protected characteristic—here, sex. DOCCS argues that Judge
Payson erred by “largely declin[ing] to consider [its] argument that there was no
evidence that the conduct [Kasperek] complained of was, in fact, sex discrimination, as
opposed to merely some interpersonal conflict.” Docket Item 72 at 13. This Court
disagrees.
In support of its position, DOCCS maintains that “[o]ther graffiti depicting penises
was similarly found in work areas shared by male and female employees with no
reference to [Kasperek].” Id. at 13-14. But “the inquiry into whether ill treatment was
actually sex-based discrimination cannot be short-circuited by the mere fact that both
men and women are involved.” Brown, 257 F.3d at 254. That is, “it may be the case
that a co-worker or supervisor treats both men and women badly, but women worse.”
Id.
DOCCS does not dispute that Kasperek has raised a triable issue of fact as to
the subjective component. See Docket Item 68 at 13 n.2.
4

8

As Judge Payson correctly concluded, the conduct here raises a triable issue as
to whether Kasperek was targeted because of her sex rather than simply because of an
interpersonal workplace conflict. While DOCCS refers to penis graffiti existing in
common areas, Kasperek was specifically targeted: images of penises were drawn and
left on her classroom door, and she received two harassing phone calls on her
classroom’s extension. See, e.g., Docket Item 56-4 at 35, 37; Docket Item 65 at ¶ 146;
Docket Item 65-1 at 32. And there can be no question that the images and words used
to target Kasperek—penises, “cunt,” and “bitch”—are inherently sexual and that the
words are demeaning.
Indeed, the third graffiti incident included an image of a penis ejaculating onto
Kasperek’s name. Docket Item 56-4 at 35. It is hard to imagine—and it certainly would
be inappropriate for the Court to conclude as a matter of law—that this inherently
sexualized drawing was solely the result of an interpersonal conflict and not Kasperek’s
sex. Cf. Ruiz v. City of New York, 2015 WL 5146629, at *9 (S.D.N.Y. Sept. 2, 2015)
(concluding on a motion to dismiss that allegations that a coworker photoshopped the
plaintiff’s face onto a naked woman’s body and subjected her to multiple instances of
sexually explicit graffiti using her name was sufficient to state a hostile work
environment claim). 5
A factfinder also must consider the totality of the circumstances and may infer
that seemingly “sex-neutral” harassment occurred because of a plaintiff’s protected
characteristic in light of other incidents that were explicitly sex-based. See Howley v.
Town of Stratford, 217 F.3d 141, 154-56 (2d Cir. 2000) (“Given the contents of
Holdsworth’s April 12 barrage, a factfinder would be entitled to infer that any
harassment Holdsworth directed at Howley thereafter, with or without obscenities, was
gender-based.”). So even if the incidents did not all involve sexually-charged words and
images, a jury could conclude, based on the nature of the third incident, that the other
depictions were drawn or placed on Kasperek’s door because of her sex.
5

9

DOCCS also argues that “[c]ausation is further lacking here because there is no
evidence tying the January 7, 2015, phone calls to the sporadic appearance of graffiti.”
Docket Item 72 at 15. But even if the phone calls and graffiti were unrelated—itself a
factual issue—a jury could conclude that the phone calls constituted sex-based
harassment. Kasperek received two phone calls on her classroom’s extension in which
an anonymous person—presumably a coworker who called from a facility phone during
work hours—called her two gender-based slurs, “bitch” and “cunt.” See Docket Item 65
at ¶ 146; Docket Item 65-1 at 32. And a court in this district has found that “cunt” and
“fucking bitch” are “obviously gender-based derogatory taunts.” Giambra v. Zeller
Corp., 2014 WL 2519740, at *7 (W.D.N.Y. Mar. 31, 2014). 6
For all those reasons, this Court agrees with Judge Payson that there is sufficient
evidence in the record for a jury to find that the harassment Kasperek experienced was
based on her sex. DOCCS’s objection to the R&R on this score therefore fails.
B.

The Severity and Pervasiveness of the Harassment

This Court also agrees with Judge Payson that Kasperek has raised a triable
issue of fact as to whether the harassment was sufficiently severe or pervasive to alter
the conditions of Kasperek’s employment and create an abusive working environment.

The case law cited by DOCCS, Docket Item 72 at 14-15, does not suggest
otherwise. See Richmond-Hopes v. City of Cleveland, 1998 WL 808222, at *5 (6th Cir.
Nov. 16, 1998) (noting that occasional references to plaintiff as a “bitch” was evidence
of discrimination because of sex but that the conduct alleged was also directed to a
male employee); Burch v. Young Harris Coll., 2013 WL 11319423, at *7 (N.D. Ga. Oct.
9, 2013) (differentiating Title IX from Title VII sex discrimination and noting that under
Title IX, “the harassment faced by the student must go beyond simple gender-based
taunting and must be so severe that it harms the student’s educational experience and
results in a denial of educational opportunities”).
6

10

Even where some aspects of a plaintiff’s claim are “no more than innocuous
badinage of the type to be expected between coworkers of different sexes, a hostile
environment claim must be evaluated on the basis of the cumulative effect of the
abusive conduct.” Dawson v. County of Westchester, 373 F.3d 265, 273-74 (2d Cir.
2004) (citation and internal quotation marks omitted). Kasperek says that as a result of
the harassment, she lost her students’ respect, Docket Item 56-4 at 28, 30-34; she was
treated as an object of sexual attention, Docket Item 65 at ¶ 175; and coworkers joked
about the images, Docket Item 56-4 at 40; Docket Item 65-1 at 7. The Court agrees
with Judge Payson’s conclusion that despite cases finding infrequent graffiti to be
insufficient to create a hostile work environment, the harassment here crossed the line
because it “had tangible adverse effects on [Kasperek’s] working conditions and
relationships within the Gowanda prison.”7 Docket Item 68 at 18; see also Docket Item
56-17 at 15-17, 115-16; Docket Item 63-2 at 24; Docket Item 65-1 at 38-39.
DOCCS argues that “[t]his finding ignores [Kasperek’s] own admissions about
the lack of any substantial effect the graffiti had on her day to day work and/or the ability
to do her job.” Docket Item 72 at 7. But a plaintiff need not be unable to perform her
job to raise a viable a hostile work environment claim. While one factor courts consider

In its motion papers, DOCCS emphasized that Kasperek merely alleges
“view[ing] seven offensive drawings and receiv[ing] two harassing phone calls
intermittently over several years, often with many months between incidents.” Docket
Item 63 at 3, 6. However, as the Second Circuit has noted, “a rigid ‘calculate and
compare’ methodology ignores the proper role of courts which, at the summary
judgment stage, is to construe all facts and draw all inferences in the light most
favorable to the nonmovant. Also, such an approach, if strictly followed, disregards
Supreme Court guidance that hostile environment analysis is not, and by its nature
cannot be, a mathematically precise test.” Hayut v. State Univ. of N.Y., 352 F.3d 733,
746 (2d Cir. 2003) (citations and internal quotation marks omitted).
7

11

is interference with work performance, “no single factor is required.” Dawson, 373 F.3d
at 272 (citation and internal quotation marks omitted). And “[t]he fact that a plaintiff
continued to work under difficult conditions is to her credit, not the harasser’s. . . . The
critical inquiry ‘is not whether work has been impaired, but whether working conditions
have been discriminatorily altered.’” EEOC v. Fairbrook Med. Clinic, 609 F.3d 320, 330
(4th Cir. 2010) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 340 (4th Cir. 2001)).
Judge Payson also correctly considered the particular nature of Kasperek’s
workplace and position as critical factors in determining whether Kasperek’s working
conditions were sufficiently altered to support her hostile work environment claim. See
Docket Item 68 at 18-23. As Judge Payson noted, Kasperek was a female teacher “at
an all-male correctional facility” who “was wholly reliant on the largely male security staff
for her personal safety.” Id. at 21. And Judge Payson correctly concluded that in that
context, a jury might well conclude that the drawings, combined with the jokes
Kasperek’s coworkers made about them, see Docket Item 65-1 at 7; Docket Item 56-4
at 40, “undermined [Kasperek’s] ‘sense of personal safety’ and ‘her capacity to
command respect’” in an environment where trust among coworkers and respect is of
utmost importance. Docket Item 68 at 19 (citing Dawson, 373 F.3d at 273-74).
The fact that someone sexually objectified Kasperek by posting graffiti that
included two highly-sexualized comments about her in an inmate bathroom lends even
more support to that conclusion. Docket Item 56-17 at 127; Docket Item 65 at ¶ 175.
While DOCCS insists that Kasperek’s safety-related complaints are meritless, Docket
Item 72 at 10, assessing whether the conduct at issue here sufficiently altered
Kasperek’s work environment is a task for a jury, not DOCCS or even this Court. See

12

Hayut, 352 F.3d at 747 (“Whether a factfinder will, on balance, decide that the remarks
reached the objective level of pervasiveness required by law is not for us to say. It is
quite sufficient that there be enough evidence in the record from which a reasonable
jury could so conclude.”). And a reasonable juror might well find that the cumulative
effect of the postings significantly compromised Kasperek’s work environment, including
her safety.
DOCCS also argues that the phone calls Kasperek received, which might or
might not be interpreted as physical threats, are not sufficiently severe to preclude
summary judgment. Docket Item 72 at 9. In contrast to the cases cited by Judge
Payson, DOCCS says, “[n]o such shocking, extreme, and pervasive conduct by an
identified supervisor is alleged or present in this case.” Id. But “[t]he fact that the law
requires harassment to be severe or pervasive before it can be actionable does not
mean that employers are free from liability in all but the most egregious of cases.”
Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997). Although the messages in this case
may not have been as extreme as those in the cases cited in the R&R, “[b]ecause of the
fact-specific and circumstance-driven nature of hostile environment claims, courts must
be mindful that the appalling conduct alleged in prior cases should not be taken to mark
the boundary of what is actionable.” Hayut, 352 F.3d at 746 (citation and internal
quotation marks omitted).
Ultimately, a reasonable jury well might conclude that the graffiti and phone calls
were related to each other and that even if they were not, the cumulative effect of the
calls and the images created a hostile work environment. See Williams v. Gen. Motors
Corp., 187 F.3d 553, 562 (6th Cir. 1999) (criticizing the district court for dividing the

13

reported incidents into four categories because “the issue is not whether each incident
of harassment standing alone is sufficient to sustain the cause of action in a hostile
environment case, but whether—taken together—the reported incidents make out such
a case”). And regardless, a reasonable jury well might conclude that those calls—or the
graffiti—independently created a hostile work environment.
Therefore, this Court agrees with Judge Payson that there are factual issues
about whether the conduct to which Kasperek was subjected was objectively severe or
pervasive enough to constitute a hostile work environment.
C.

Imputing the Harassment to DOCCS

Finally, DOCCS objects to Judge Payson’s conclusion that the conduct here
could be imputed to it. Docket Item 72 at 16-27. Specifically, DOCCS asserts that its
responses to the graffiti and phone calls were prompt and reasonable, that every
drawing was removed the same day, and that it executed a progressive and appropriate
response strategy. Id. at 19, 26-27. For that reason, DOCCS argues that Judge
Payson erred in finding that it could be liable for the continued harassment. Again, this
Court agrees with Judge Payson.
DOCCS specifically contends that its response to the graffiti was sufficient and
cites a case from the Eastern District of New York in arguing that “when graffiti is
reported to the employer and the employer promptly removes the offending language,
the employer has taken appropriate remedial action.” Id. at 20 (quoting Williams v.
County of Nassau, 2019 WL 2270518, at *7 (E.D.N.Y. May 28, 2019), aff’d, 806 F.
App’x 75 (2d Cir. 2020)). But the facts in Williams—which involved etchings of the
letters “KKK” and a half-finished swastika, see id. at *2—are easily distinguishable from
14

the facts here. In Williams, the employer had taken additional steps, such as issuing an
order warning of immediate discipline for anyone found to have created discriminatory
markings. Id. at *7. 8 Here, by contrast, it was only after the fourth instance of graffiti
that DOCCS began to take any sort of preventative measure by issuing a
memorandum, Docket Item 56-2 at ¶ 102; it was only after the fifth incident that DOCCS
implemented an action plan, id. at ¶¶ 117, 118. Under those circumstances, a jury is in
the best position to decide whether there was a “practical []possibility of preventing any
workplace graffiti,” Docket Item 72 at 20, that targeted Kasperek. See Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (“[I]f harassment
continues after complaints are made, reasonable jurors may disagree about whether an
employer’s response was adequate.”).
Likewise, there is a question of fact about whether DOCCS’s responses to the
phone calls were sufficient. Even crediting DOCCS’s assertions that the phone calls
could have been placed by many employees and that it had Kasperek’s extension
forwarded to another employee to “ensure she did not receive any more harassing
calls,” Docket Item 72 at 25-26, this Court cannot conclude that DOCCS’s response to
that potential physical threat was adequate as a matter of law. As Judge Payson
concluded, the promptness of DOCCS’s response may well have been inadequate:
“more than two months after the phone calls were made, [the investigator] wrote an

Davis v. New York Department of Corrections, 256 F. Supp. 3d 343 (S.D.N.Y.
2017), a case relied on by the Williams court, is similarly inapposite. There, the court
noted that “DOCCS would paint over racist graffiti as it appeared, and when it became
clear that this was insufficient to solve the problem, it painted the walls black.” Id. at
353. The court concluded that the employer’s response therefore was not repeatedly
ineffective. Id.
8

15

email indicating that he had three possible suspects, whom he intended to interview ‘by
the end of [the following] week.’ . . . [But] his next update did not take place until May
20, 2015, more than four months after the incident, at which point he indicated that his
pool of potential suspects had enlarged ‘substantially.’” Docket Item 68 at 26 (citations
omitted). Whether DOCCS’s responses were “in proportion to the level of seriousness,”
Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013), or “sufficiently calculated to
end the harassment,” Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d Cir.
1995), is a question best left to the jury, see Whidbee, 223 F.3d at 72-73.
By its very nature, the question of whether a response to harassment was
“sufficient” is nearly impossible to gauge as a matter of law. Only when the answer to
that question is easy or obvious should a court grant summary judgment on that issue.
See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir. 1998) (“Whether the
company’s response was reasonable has to be assessed from the totality of
circumstances. Factors to be considered in this analysis are the gravity of the harm
being inflicted upon the plaintiff, the nature of the employer’s response in light of the
employer’s resources, and the nature of the work environment.”); Drouillard v.
Sprint/United Mgmt. Co., 375 F. Supp. 3d 245, 267 (E.D.N.Y. 2019) (“In the context of
summary judgment, ‘[i]f the evidence creates an issue of fact as to whether an
employer’s action is effectively remedial and prompt, summary judgment is
inappropriate.’” (quoting Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998)). And
the answer here is anything but that.
In sum, this Court agrees with Judge Payson that there are issues of fact as to
whether the incidents alleged created a sex-based hostile work environment and

16

whether DOCCS’s responses to the incidents were sufficient. Therefore, the Court
accepts and adopts Judge Payson’s recommendation to deny DOCCS’s motion for
summary judgment on this claim.
II.

RETALIATION
Judge Payson recommended granting DOCCS’s motion for summary judgment

as to Kasperek’s retaliation claim. Docket Item 68 at 28-36. Kasperek argues that
Judge Payson erred in finding that none of the alleged retaliatory acts were sufficient to
raise a material issue of fact that she had suffered a cognizable adverse action. Docket
Item 71 at 2. Specifically, Kasperek argues that the two phone calls she received and
DOCCS’s alleged failure to investigate those calls could be considered retaliation
because they could “be interpreted by a jury as dissuasive to a reasonable worker from
making or supporting a discrimination complaint.” Id. at 3, 5.
But Judge Payson already addressed that very argument and found it deficient.
As to the phone calls, Judge Payson concluded that Kasperek “conflate[d] the actions of
DOCCS with those of her coworkers” and “failed to articulate why these alleged actions
of her coworkers . . . should be considered retaliation by DOCCS.” Docket Item 68 at
34. 9 Kasperek does not address those conclusions in her objection.
Kasperek also insists that DOCCS’s failure to investigate the phone calls “could
be understood by a jury” to be retaliation. Docket Item 71 at 5. But Judge Payson
While Judge Payson explained that it is possible that “‘unchecked retaliatory coworker harassment may constitute adverse employment action’ if ‘the employer knows
about (or reasonably should know about) that harassment but fails to take appropriately
remedial action,’” Docket Item 68 at 34 (quoting Richardson v. N.Y. State Dep’t of Corr.
Serv., 180 F.3d 426, 446 (2d Cir. 1999)), Kasperek failed to make that argument either
in her original opposition papers or in her objection.
9

17

already considered that argument as well and found that a failure to investigate cannot
be considered a retaliatory adverse employment action. See Docket Item 68 at 33
(citing Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)).
Similarly, Kasperek makes passing reference to feeling ostracized “every single day” by
Gowanda’s security staff. Docket Item 71 at 3 (quoting Docket Item 56-4 at 85)). But
feeling ostracized does not constitute an adverse action sufficient to support a
retaliation claim. See Danieu v. Teamsters Local 264, 2011 WL 1259839, at *9
(W.D.N.Y. Mar. 31, 2011). Nor do Kasperek’s generalized allegations address Judge
Payson’s observation that Kasperek “conflates the actions of DOCCS with those of her
coworkers.” 10 Docket Item 68 at 34.
In sum, Kasperek’s objection does not identify any error in Judge Payson’s
analysis, nor does it address the gaps Judge Payson found in her retaliation claim.
Indeed, Kasperek’s objection—which simply reiterates arguments made to and rejected
by Judge Payson—is nothing more than an attempt to get a second bite at the apple.
See Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382
(W.D.N.Y. 1992) (noting that “rehashing” of prior arguments made before the magistrate
judge is improper and contravenes the goal of assigning cases to magistrate judges—
that is, to increase the overall efficiency of the federal judiciary); Molefe v. KLM Royal
Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (“When a party makes only
conclusory or general objections, or simply reiterates the original arguments, the Court
Kasperek argues that her retaliation claim is viable because of the mental and
physical effects she experienced. Docket Item 71 at 4-5. But that conflates her injury
with the basis for her claim. This Court does not minimize the trauma that Kasperek
experienced as a result of those phone calls. But that injury alone does not support a
retaliation claim.
10

18

will review the [R&R] strictly for clear error.”). In any event, this Court agrees with
Judge Payson’s recommendation to dismiss Kasperek’s retaliation claim. Because
Kasperek has not identified any DOCCS act that a jury might find to constitute
retaliation, her retaliation claim fails as a matter of law.
CONCLUSION
For the reasons stated above and in the R&R, this Court accepts and adopts
Judge Payson’s recommendations. DOCCS’s motion for summary judgment, Docket
Item 56, is GRANTED in part and DENIED in part: Kasperek’s retaliation and
discrimination claims are dismissed, but her claim based on a hostile work environment
may proceed. The parties shall contact the Court within 30 days of the date of this
order to schedule a status conference so that the Court can set a trial date.

SO ORDERED.
Dated:

March 8, 2022
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

19