Freeman v. Rochester Psychiatric Center et al

Filing 223

DECISION AND ORDER granting 182 Motion for Summary Judgment; denying 190 Motion for Sanctions; denying 209 Motion for Summary Judgment; denying 213 Motion for Sanctions. Signed by Hon. Michael A. Telesca on 09/20/2017. (CDH) (A copy of this Decision and Order was mailed to plaintiff on 9/20/2017). -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DWAYNE FREEMAN,
Plaintiff,
-v-

6:12-CV-06045 (MAT)
DECISION AND ORDER

ROCHESTER PSYCHIATRIC CENTER,
Defendant.

I.

Introduction
On

January

25,

2012,

pro

se

plaintiff

Dwayne

Freeman

(“plaintiff”)commenced the instant action against his employer,
defendant Rochester Psychiatric Center (“defendant or “RPC”),
alleging discrimination and retaliation pursuant to Title VII of
the Civil Rights Act, 42 U.S.C. §§ 2000e et seq.

(“Title VII”).

Fact discovery in this matter has closed, and the parties have
filed competing motions for summary judgment.
219.

Docket Nos. 182,

For the reasons discussed below, plaintiff’s motion for

summary judgment is denied and defendant’s motion for summary
judgment is granted.
II.

Background
The following facts are taken from the respective statements

of fact, affidavits, and exhibits submitted by plaintiff and
defendant.
Plaintiff was hired by RPC as a mental health treatment aide
(“MHTA”) on July 31, 2002. Plaintiff initially worked on the night

shift, which he described at his deposition as being “quieter” and
“calmer” than the day shift.

Plaintiff further testified that he

received a pay differential of an additional 20 cents per hour for
working the night shift.
In July 2009, plaintiff received a written counseling due to
his behavior towards LeeAnn Weaver, a registered nurse employed by
RPC.

On July 9, 2009, Ms. Weaver asked plaintiff to inform her or

another employee if he was leaving a particular area of the RPC
building. Plaintiff felt that Ms. Weaver had used a demeaning tone
of voice in making this request, and called Sandra Lucas, one of
RPC’s nurse administrators, requesting that she come to the floor
in order to prevent him from “cursing out” Ms. Weaver.

Ms Lucas

mediated the dispute, but on July 12, 2009, another RPC employee
witnessed

plaintiff

staring/glaring

at

Ms.

Weaver

in

an

intimidating fashion. Plaintiff was issued a written counseling on
July 22, 2009, which stated that he had engaged in “continuing
inappropriate behavior” towards Ms. Weaver that needed to stop.
Docket No. 142 at 12.

The written counseling further informed

plaintiff that it was inappropriate for him to do push-ups on the
floor while working.

When he received the written counseling,

plaintiff denied the allegations and refused to sign the document.
Plaintiff filed a grievance related to his receipt of the written
counseling, which was denied on November 10, 2009.

Plaintiff

appealed the matter further, and a hearing was conducted on

2

February 24, 2010.

On June 16, 2010, plaintiff received a letter

from Virginia Kirby from the New York State Office of Mental Health
(the “OMH”) informing him that there had been no violation of his
contract, that the counseling did not constitute discipline, and
that his grievance remained denied.
On August 26, 2009, another of RPC’s registered nurses, Trudy
Stevens, sent an email to Ms. Lucas in which she stated that
plaintiff had stared at her for an entire shift and that she
believe he was trying to intimidate her. Ms. Stevens reported that
plaintiff had engaged in similar behavior on other occasions and
that it made her feel very uncomfortable.

It is not clear from the

record what action, if any, was taken in response to Ms. Stevens’
complaint.
Although the record is not clear as to when, plaintiff
apparently at some point began a personal relationship with Deb
Hancoski, a fellow RPC employee.

That relationship ended and Ms.

Hancoski subsequently told other individuals at RPC that plaintiff
had inappropriately touched her at the Rochester Lilac Festival
(the “Lilac Festival”) in May 2009.
December

2009,

he

informed

Ms.

Plaintiff alleges that in

Lucas

that

Ms.

Hancoski

was

spreading false tumors about him and that she informed him it was
his problem to deal with.

On March 22, 2010, plaintiff filed two

grievances in which he alleged that Ms. Hancoski was slandering him
and had been doing so for six to seven months, and that no action

3

had been taken despite his prior report to Ms. Lucas.

At the time

these grievances were submitted, plaintiff’s union representative
Andre Medlock requested that they be placed on hold, so that the
issues could be addressed informally. However, plaintiff claims to
have subsequently learned that Ms. Hancoski continued telling
people he had tried to touch her inappropriately.

Plaintiff filed

an additional grievance related to Ms. Hancoski on April 22, 2010.
On June 7, 2010, plaintiff sent an email to Mr. Medlock, Ms. Lucas,
Barbara

McMullen

(RPC’s

assistant

director

of

nursing)

and

Christopher Kirisits (RPC’s director of nursing) in which he stated
that he was making a formal complaint against Ms. Hancoski for
having

allegedly

told

Mary

Uerkvitz,

plaintiff had molested her in a park.

another

RPC

MHTA,

that

Plaintiff denied Ms.

Hancoski’s allegations, describing them as slander and defamation,
and requested that she be given a written counseling.
On July 13, 2010, Cynthia Crowell, RPC’s affirmative action
administrator assistant, received a report that Ms. Hancoski had
told her charging nurse that plaintiff had sexually harassed her.
Ms. Crowell communicated this allegation to Mr. Kirisits and Ms.
McMullen.
In August 2010, plaintiff was involved in another incident
with Ms. Stevens, who was a supervisor at the time.

According to

plaintiff, at approximately 5 a.m., an alarm went off because one
patient had entered another patient’s bedroom.

4

Plaintiff entered

the nurses’ station, where Ms. Stevens was seated, to turn the
alarm off.

Plaintiff left to investigate the situation, then

returned to the nurses’ station to turn the alarm back on.

Ms.

Stevens asked plaintiff “is everything okay,” but he did not
respond to her question.

Ms. Stevens then allegedly stood in the

doorway of the nurses’ station, blocking plaintiff’s ability to
exit,

and

asked

him

why

he

had

not

answered

her

question.

Plaintiff claims that he asked Ms. Stevens to please move out of
his way, which she eventually did.

Ms. Stevens reported this

incident to Ms. Lucas and, on August 14, 2010, plaintiff was given
a written counseling for having refused to answer a supervisor’s
question about a patient situation.

Upon receipt of the written

counseling, plaintiff had a conversation with Ms. Lucas in which he
asked her what was going to be done to Ms. Stevens for having
blocked his path, and Ms. Lucas told him she couldn’t discuss the
disciplinary status of other employees. Ms. Lucas further informed
plaintiff that RPC management was considering moving him to the day
shift due to his repeated conflicts with his co-workers, and
plaintiff opined that there was a double standard when it came to
assessing allegations against him versus the allegations he made
against other people.

On August 16, 2010, plaintiff filed a

grievance related to the incident, in which he claimed that Ms.
Stevens had engaged in workplace violence and requested that Ms.
Stevens be reprimanded.

5

Plaintiff, Mr. Medlock, and Christine Hally, RPC’s director of
human resources management, met on August 30, 2010, to discuss
plaintiff’s grievances. On September 7, 2010, plaintiff was placed
on administrative leave with pay, pending an investigation into the
allegations he and Ms. Hancoski had made against one another.
On September 10, 2010, Cheryl Brice, another MHTA at RPC, sent
a

note

to

Ms.

Crowell

in

which

plaintiff’s mental stability.

she

expressed

concern

about

Ms Brice expressed her belief that

plaintiff was “the type of person that would go postal” and stated
that plaintiff had asked his co-worker Ms. Uerkvitz if she would
kill another person if she knew she would not get caught.
No. 142 at 30.

Docket

On September 11, 2010, Ms. Uerkvitz told Ms. Lucas

that, on August 30, 2010, plaintiff had asked her if she would kill
someone if she knew she could get away with it.

Ms. Uerkvitz

stated that she had replied “oh God no, why would you even say
that” and that plaintiff told her that he “would definitely kill
someone if [he] could.”

Id. at 31.

Ms. Uerkvitz further stated

that plaintiff’s statement “sent a chill down [her] spine” and that
“he was sincere in his words.”

Id.

At his deposition, plaintiff

claimed that his conversation with Ms. Uerkvitz about killing
people was in the context of a discussion of their favorite
television shows, and that he had told her his favorite television
show was Dexter, and that he admired the main character on that
program and wished he could be like him.

6

The Court takes judicial

notice that Dexter is a television program in which the main
character is a serial killer who murders people who have committed
horrific crimes.
On September 13, 2010, Ms. Hally sent a letter to plaintiff
denying his grievance regarding the August 2010 incident with Ms.
Stevens, explaining that Ms. Stevens’ question had been appropriate
and legitimate and that plaintiff had admitted he specifically
chose to ignore her.

Ms. Hally noted that there had been no

physical contact between plaintiff and Ms. Stevens and concluded
that it was not an act of workplace violence but rather “an act of
disrespect between co-workers.”

Docket No. 142 at 21.

On September 28, 2010, Ms. Hally authored an Investigaton
Report regarding plaintiff’s comments to Ms. Uerkvitz.

Ms. Hally

noted that she had interviewed Ms. Uerkvitz on September 15, 2010
and

September

23,

2010,

and

that

Ms.

Uerkvitz

told

her

the

following: (1) approximately six months earlier, Ms. Hancoski had
told Ms. Uerkvitz that plaintiff made inappropriate contact with
her at the Lilac Festival in 2009; (2) Ms. Uerkvitz had no memory
of having discussed television shows with plaintiff during the
conversation in which he said he would kill someone if he could get
away with it; and (3) Ms. Uerkvitz was concerned about plaintiff’s
behavior and his interactions with co-workers he disliked.

Ms.

Hally also reported that plaintiff had asked another co-worker to
be a reference for him for a pistol permit.

7

Ms. Hally’s notes from

her conversation with Ms. Uerkvitz on September 15, 2010, indicate
that Ms. Uerkvitz told her that plaintiff hated several of his
coworkers, including Ms. Weaver and Ms. Hancoski, and that he had
told Ms. Uerkvitz that he hoped Ms. Hancsoki died and that he was
not kidding.
On September 30, 2010, Ms. Hally sent plaintiff a letter
regarding his grievances related to Ms. Hancoski.

She informed

plaintiff that, due to the nature of the allegations, management
had engaged the assistance of the OMH Bureau of Diversity to review
the situation.

On October 1, 2010, Ms. Hally sent plaintiff a

letter informing him that RPC had determined that his continued
presence on the job constituted a danger to patients and coworkers.

Accordingly, he was placed on an involuntary leave of

absence and required to undergo a psychiatric evaluation.
On November 11, 2010, Ms. Crowley sent plaintiff a letter in
which she stated that a thorough investigation of Ms. Hancoski’s
allegation had been conducted and that there was “sufficient
evidence to support the allegation was true.”
42.

Docket No. 209-3 at

However, because the incident between plaintiff and Ms.

Hancoski had occurred more than a year earlier, RPC was unable to
take corrective action against plaintiff under the terms of his
contract.

As a preventive measure, it was recommended that

plaintiff attend sexual harassment prevention training.
On November 19, 2010, plaintiff was sent a letter informing

8

him that he would be returning to work as of November 23, 2010 (on
which day he would attend sexual harassment training prevention)
and that he would be reassigned to the day shift effective December
23, 2010, “based upon Facility operational needs.” Docket No. 2093 at 70.
On December 3, 2010, plaintiff received a notice of discipline
related to his comments to Ms. Uerkvitz.

The notice of discipline

indicated that plaintiff had engaged in misconduct/incompetence by
making inappropriate and alarming comments about killing people and
that, as a result, he would be suspended for four weeks without
pay.
Plaintiff commenced the instant action on January 25, 2012,
naming as defendants RPC, Ms. Crowell, Mr. Kirisits, Ms. Lucas, Ms.
MacMullen, and Michael Zuber of the OMH. The individual defendants
were dismissed from this action by Court order on December 2, 2013.
Defendant filed its motion for summary judgment on January 20,
2017, and plaintiff filed a cross-motion for summary judgment on
June 30, 2017.
III. Discussion
A.

Legal Standard

Pursuant

to

Rule

56(a)

of

the

Federal

Rules

of

Civil

Procedure, the Court will grant summary judgment if the moving
party demonstrates that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
9

law. When considering a motion for summary judgment, all genuinely
disputed facts must be resolved in favor of the party against whom
summary judgment is sought. See Tolan v. Cotton, 134 S.Ct. 1861,
1863 (2014).

If, after considering the evidence in the light most

favorable to the nonmoving party, the court finds that no rational
jury could find in favor of that party, a grant of summary judgment
is appropriate.

See Scott v. Harris, 550 U.S. 372, 380 (2007),

citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587 (1986).

A party opposing a motion for summary

judgment “‘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).
B.

Disparate Treatment Claim

Plaintiff alleges that RPC discriminated against him on the
basis of his race (African American) and his gender (male). Under
Title VII, a motion for summary judgment on a claim of disparate
treatment

is

assessed

using

the

burden-shifting

framework

established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
plaintiff

must

discrimination.

first

Pursuant to this framework, the

demonstrate

a

prima

facie

case

of

To establish a prima facie case, plaintiff must

demonstrate that: “(1) [he] was within the protected class; (2)
10

[he] was qualified for the position; (3) [he] was subject to an
adverse employment action; and (4) the adverse employment action
occurred

under

circumstances

giving

rise

to

an

inference

of

discrimination.” Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d
Cir. 2009). If plaintiff establishes a prima facie case, “the
burden shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for the [adverse act].”
(internal

quotations

original).

and

citation

omitted)

Id. at 499

(alteration

in

"Once such a reason is provided, the plaintiff can no

longer rely on the prima facie case, but may still prevail if []he
can show that the employer’s determination was in fact the result
of discrimination.”

Gorzynski v. Jetblue Airways Corp., 596 F.3d

93, 106 (2d Cir. 2010).

The plaintiff is required to “demonstrate

by competent evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination."

Leibowitz, 584 F.3d at 499 (internal quotations

and citation omitted).
Here, defendant does not contest that plaintiff has met his
burden

with

respect

to

the

first

two

elements

of

his

prima

facie case - namely, that he is a member of a protected class and
that he was qualified for his position as an MHTA.

However,

defendant contends that plaintiff cannot establish a prima facie
case of discrimination, because he did not suffer an adverse
employment action and because, even assuming arguendo that he had,
11

such adverse action did not take place under circumstances giving
rise to an inference of discrimination.

The Court has considered

the parties’ arguments and, for the reasons discussed at length
below, concludes that, while plaintiff has shown a genuine issue of
material

fact

as

to

whether

or

not

he

suffered

an

adverse

employment action, he has failed to present any competent evidence
that such action was the result of unlawful discrimination.
Court

further

concludes

that

defendant

had

legitimate,

The
non-

discriminatory reasons for its actions and that such reasons were
not pretextual.
1.

Adverse Employment Action

In order to prevail on his discrimination claim, plaintiff is
required to present competent evidence that he suffered an adverse
employment action.

The Second Circuit has defined an adverse

employment action as a “materially adverse change” in the terms and
conditions of the plaintiff’s employment. Galabya v. New York City
Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). “An adverse
employment action is one which is more disruptive than a mere
inconvenience or an alteration of job responsibilities.”

Terry v.

Ashcroft, 336 F.3d 128, 138 (2d Cir.2003) (internal quotation
omitted).

“Examples

of

materially

adverse

changes

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
12

other

indices

(internal

.

.

.

quotations

unique
marks

to

a

particular

omitted).

Here,

situation.”

Id.

considering

the

disputed facts in the light most favorable to plaintiff, the Court
concludes that there is a genuine issue of material fact regarding
whether he suffered an adverse employment action.
Plaintiff contends that his transfer from the night shift to
the day shift constituted an adverse employment action because it
caused him to lose the night shift pay differential and because it
caused him to lose seniority. “Unfavorable hours do not constitute
an adverse employment action for the purposes of Title VII.”
Antonmarchi v. Consol. Edison Co. of New York, 2008 WL 4444609, at
*14 (S.D.N.Y. Sept. 29, 2008) (further holding that “[p]laintiff
being forced to work on the night shift cannot constitute an
adverse employment action”).

As such, the mere transfer of

plaintiff from the night shift to the day shift, without more,
plainly did not constitute an adverse employment action.
“[t]ransfer

to

an

undesirable

work

shift

may

However,

constitute

a

materially adverse change in the terms and conditions of employment
if it results in other unfavorable consequences.”

Turner v.

Davidson/Gilmour Pipe Supply, 2006 WL 1652613, at *8 (E.D.N.Y. June
14, 2006) (emphasis added);

see also Ifill v. United Parcel

Service, 2005 WL 736151, at * (S.D.N.Y. March 29, 2005) (“[A]
lateral transfer, even if imposed on an employee involuntarily,
does not constitute an adverse employment action unless it is

13

accompanied by some other material adverse change in conditions,
such as a reduction in pay or status.”) (emphasis added).

Here,

plaintiff has alleged that his transfer to the day shift resulted
in a diminution of his pay and a loss of seniority.
The minor diminution in plaintiff’s pay as a result of his
transfer is likely not enough, standing alone, to establish the
existence of an adverse employment action.

Plaintiff testified at

his deposition that employees working the night shift received an
additional 20 cents per hour.

Assuming a 40 hour work week, loss

of the pay differential would amount to roughly $400 dollars per
year, or approximately 1% of plaintiff’s $40,000 per year earnings.
“This is not the significant change in benefits required for an
adverse

employment

action.”

Sarver

v.

Staples

the

Office

Superstore E., Inc., No. 2:12-CV-374-JMS-MJD, 2014 WL 1571221, at
*6 n.6 (S.D. Ind. Apr. 17, 2014) (finding that plaintiff who lost
approximately 2% of her pay as result of transfer to day shift did
not suffer adverse employment action); Waters v. City of Dallas,
2012 WL 5363426, at *10 (N.D. Tex. Nov. 1, 2012)(finding no adverse
employment action where “the undisputed evidence is that the
transfer was from a night to day shift, and the objective evidence
is that the reduction in pay was due only to a loss of the night
shift differential”).
However, plaintiff also testified at his deposition that his
transfer to the day shift caused him to lose seniority, a fact that

14

defendant has not rebutted. “[L]oss of seniority can be an adverse
employment action.”

Gaines v. New York City Transit Auth., 528 F.

Supp. 2d 135, 147 (E.D.N.Y. 2007); see also United States v.
Brennan, 650 F.3d 65, 95 n.36 (2d Cir. 2011) (“loss of transfer and
layoff seniority is enough to show a materially adverse change in
the terms and conditions of employment.”) (internal quotation
omitted). As a result, and considering the facts in the light most
favorable to plaintiff, the Court concludes that a genuine issue of
material fact exists regarding whether plaintiff’s transfer to the
day shift constituted an adverse employment action.
The Court notes that plaintiff has not specifically identified
any other alleged adverse employment actions. However, in light of
plaintiff’s pro se status and in the interest of justice, the Court
has considered whether any of the following constitute adverse
employment actions: (1) plaintiff’s receipt of written counselings;
(2) plaintiff’s placement on administrative leave with pay; (3)
defendant’s requirement that plaintiff attend sexual harassment
prevention training; and (4) plaintiff’s four week suspension
without pay.
With respect to plaintiff’s receipt of written counselings,
“these . . . instances of routine discipline . . . [did not]
constitute[]

a

‘materially

adverse

change’

in

the

terms

and

conditions of [plaintiff’s] employment sufficient to sustain a
Title VII discrimination claim.”

15

Taylor v. Seamen’s Soc. For

Children,

2013

WL

6633166,

at

*13

(S.D.N.Y.

Dec.

17,

2013)

(collecting cases); see also Oliphant v. Connecticut Dep't of
Transp.,

2006

WL

3020890,

at

*7

(D.

Conn.

Oct.

23,

2006)

(“Counseling letters, like negative evaluations or other forms of
workplace reprimands, are not disruptive enough to rise to the
level of ‘adverse employment actions.’”).
Similarly, with respect to defendant requiring plaintiff to
attend sexual harassment prevention training, “a finding of sexual
harassment

alone

does

not

rise

to

the

level

of

an

adverse

employment action. Nor does the requirement that an employee
participate in sexual harassment training, as such a requirement
does not impact the terms, conditions, or privileges of the
plaintiff’s job in a real and demonstrable way.” Soloski v. Adams,
600 F. Supp. 2d 1276, 1356 (N.D. Ga. 2009) (citation omitted); see
also Brown v. CSX Transportation Inc., 155 F. Supp. 3d 265, 271
(W.D.N.Y. 2016) (noting that “courts typically find that requiring
an employee to attend training is not considered an adverse
employment action”).
With respect to plaintiff having been placed on administrative
leave with pay while Ms. Hancoski’s allegations against him were
investigated,

the

“administrative
investigation

Second

leave

does

employment action.”

Circuit

with

not,

pay

without

has

during
more,

expressly
the

held

pendency

constitute

an

that
of

an

adverse

Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir.

16

2006).

Here,

there

was

nothing

unusual

or

dilatory

about

defendant’s placement of plaintiff on administrative leave that
would constitute an adverse employment action.
However, defendant’s decision to place plaintiff on a four
week suspension without pay in December 2010 clearly constitutes an
adverse employment action. See, e.g., Rupert v. City of Rochester,
Dep’t of Envtl. Servs., 701 F. Supp. 2d 430, 440 (W.D.N.Y. 2010)
(“A suspension without pay qualifies as an adverse employment
action.”); McInnis v. Town of Weston, 458 F. Supp. 2d 7, 13 (D.
Conn. 2006) (“the Second Circuit has long held that a suspension
without pay, for which a plaintiff receives no backpay, is an
adverse employment action”).
For the foregoing reasons, the Court disagrees with defendant
and finds that plaintiff has met his burden, at this stage of the
proceedings, of producing evidence that he suffered an adverse
employment action.

Accordingly, the rest of the Court’s analysis

assumes that the transfer to the day shift and the suspension
without pay constituted adverse employment actions.
2.

Circumstances
Discrimination

Giving

Rise

to

Inference

of

The fourth and final element of a prima facie discrimination
case is the existence of circumstances giving rise to an inference
of discrimination.

“Circumstances contributing to a permissible

inference of discriminatory intent may include . . . the employer’s
criticism of the plaintiff’s performance in ethnically degrading
17

terms

.

.

.

or

its

invidious

comments

about

others

in

the

employee’s protected group . . . or the more favorable treatment of
employees not in the protected group . . . or the sequence of
events leading to the [adverse employment action] . . . or the
timing of the [adverse employment action].” Chambers v. TRM Copy
Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (internal citations
omitted).

“Since the court, in deciding a motion for summary

judgment, is not to resolve issues of fact, its determination of
whether

the

circumstances

‘giv[e]

rise

to

an

inference’

of

discrimination must be a determination of whether the proffered
admissible evidence shows circumstances that would be sufficient to
permit a rational finder of fact to infer a discriminatory motive.”
Id.
Here, defendant argues, and the Court agrees, that plaintiff
has failed to produce any evidence from which a rational factfinder could conclude that RPC acted with a discriminatory motive.
Significantly, plaintiff himself testified at deposition that he
did not know why defendant had taken adverse action against him,
stating, “I believe that there was an unequal working condition
where the defendants took my complaint and turned it around on me.
Why? Male, black, just don’t like me, I don’t know.”
182-3 at 52 (emphasis added).

Docket No.

Further, when asked if he believed

that either Ms. Hancoski or Ms. Uerkvitz had a racial or gender
bias against him, plaintiff stated that he “[could not] answer

18

that.”

Id. at 52-53.

Conclusory

allegations

of

bias,

without

insufficient to oppose summary judgment.”

of

direct

racial

or

gender

“are

Brown v. Xerox Corp.,

170 F. Supp. 3d 518, 532 (W.D.N.Y. 2016).
evidence

more,

Here, there is no

discrimination

against

plaintiff, such as the making of inappropriate comments or the use
of epithets or slurs.
other,

There is also no competent evidence that

similarly-situated employees were treated more favorably

than him.

“Although the Second Circuit . . . has stated that the

burden that must be met by an employment discrimination plaintiff
to survive a summary judgment motion at the prima facie stage is de
minimis,

it

has

also

noted

discrimination from thin air.”

that
Id.

[a]

jury

cannot

infer

(internal quotation omitted).

In this case, there is simply nothing from which a jury could
conclude

that

Accordingly,

RPC

was

motivated

defendant’s

motion

by
for

a

discriminatory

summary

judgment

intent.
must

be

granted as to plaintiff’s disparate treatment claim.
3. Non-Pretextual,Legitimate, Non-Discriminatory Reasons
As set forth above, plaintiff has failed to establish a prima
facie

case

of

disparate

treatment.

However,

assuming

that

plaintiff could make out a prima facie case, defendant would still
be

entitled

to

summary

judgment

because

it

has

articulated

legitimate, non-discriminatory reasons for reassigning plaintiff to
the day shift, and there is no competent evidence that these
19

reasons were pretextual.
Defendant maintains that plaintiff was transferred to the day
shift as a result of his repeated conflicts with his co-workers on
the night shift.

These conflicts are well-documented and clearly

created serious issues that defendant was required to address.
Similarly, plaintiff’s four week suspension without pay was based
on his having made inappropriate, threatening comments to Ms.
Uerkvitz.

Even accepting plaintiff’s version of his conversation

with Ms. Uerkvitz, he admits to having told a co-worker that he
admired a fictional serial killer and wished he could be like him.
This statement is clearly inappropriate in the workplace, and RPC
was entitled to take appropriate disciplinary action.
There is no evidence that defendant’s stated reasons for its
actions were pretextual.
either

that

the

“A plaintiff may show pretext by proving

employer

was

more

likely

motivated

by

a

discriminatory reason or that the proffered explanation is not
credible.”

Francois v. Office of Mental Health of State of N.Y.,

Bronx Psychiatric Ctr., 715 F. Supp. 69, 73 (S.D.N.Y. 1989).

As

discussed above, there is no evidence in this case that RPC was
motivated

by

discriminatory

intent.

Moreover,

its

proffered

explanation for its action is credible, being well-supported by
contemporaneous documentation.
The Court notes that plaintiff has claimed that another RPC
employee, Vicky Snyder, was pressured by Ms. Crowell to make a

20

false allegation against him.

In support of this claim, plaintiff

points to a letter allegedly authored by Ms. Snyder in which she
states that she felt pressured by Ms. Crowell (and other employees
at RPC) to provide evidence against plaintiff.

Plaintiff has

failed to show that Ms. Snyder’s letter is competent evidence of
pretext. As a threshold matter, the letter in question is unsworn,
and

Ms.

Snyder

testimony

on

does

this

not

appear

matter.

to

have

“‘[U]nsworn

ever

provided

statements

admissible to controvert a summary judgment motion.’”

sworn

are

not

Ventura v.

Attea, 102 F. Supp. 3d 464, 469 (W.D.N.Y. 2015) (quoting Dukes v.
City of New York, 879 F.Supp. 335, 343 (S.D.N.Y. 1995)). Moreover,
and contrary to plaintiff’s argument, Ms. Snyder’s statement does
not claim that Ms. Crowell pressured her to make a false allegation
against plaintiff.

Instead, Ms. Snyder reports that Ms. Crowell

questioned her repeatedly regarding whether the incident between
plaintiff and Ms. Hancoski had occurred in May 2009 or May 2010,
because RPC’s “statute of limitations” for issuing discipline was
one year.

See Docket 209-3 at 52-53.

Ms. Snyder further states

that she had reported an issue with Mr. Freeman to RPC in May 2010
and that Ms. Crowell asked her to provide additional information
about

this

incident

limitations.”

Id.

because

it

was

within

the

“statute

of

Nowhere does Ms. Snyder say, nor does her

letter imply, that RPC management asked her to make a false
statement against plaintiff.

For all these reasons, Ms. Snyder’s

21

statement

does

not

constitute

competent

evidence

of

pretext.

Accordingly, the Court concludes that defendant is entitled to
summary judgment on plaintiff’s disparate treatment claim.
C.

Hostile Work Environment Claim

Plaintiff also argues that he has been subjected to a hostile
work environment. In order to succeed on a hostile work environment
claim, plaintiff must show that the complained of conduct: (1) ‘is
objectively severe or pervasive — that is, . . . creates an
environment
abusive’;

that
(2)

a

reasonable

creates

an

person

would

environment

find

‘that

the

hostile

or

plaintiff

subjectively perceives as hostile or abusive’; and (3) ‘creates
such an environment because of the plaintiff’s [membership in a
protected class].’”

Patane v. Clark, 508 F.3d 106, 113 (2d Cir.

2007) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir.
2001)).
Assuming

without

deciding

that

plaintiff

has

presented

sufficient evidence of an objectively hostile work environment,
plaintiff’s hostile work environment fails for the same reason as
his disparate treatment claim - namely, there is no evidence that
anyone at RPC was motivated by racial or gender bias.

Indeed, and

as noted above, plaintiff conceded at his deposition that, as far
as he knew, it was entirely possible that RPC and its management
simply did not like him.

Simply put, Title VII does not protect a

plaintiff from “an uncomfortable workplace environment, as opposed

22

to discriminatory animus.”
3d

562,

569

(S.D.N.Y.

Brodt v. City of New York, 4 F. Supp.
2014)

(collecting

cases);

see

also

Lennert-Gonzalez v. Delta Airlines, Inc., 2013 WL 754710, at *8
(S.D.N.Y. Feb. 28, 2013) (“Personal animus . . . is insufficient to
establish a claim under Title VI. . . .”).

Accordingly, defendant

is entitled to summary judgment in its favor on plaintiff’s hostile
work environment claim.
D.

Retaliation Claim

Plaintiff has also alleged that defendant retaliated against
him for his complaints against his co-workers. It is impermissible
for an employer to discriminate against an employee for opposing
any practice made unlawful by Title VII.

See Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 59–60 (2006); Hicks v. Baines,
593 F.3d 159, 164 (2d Cir. 2010).

Title VII’s anti-retaliation

“prevent[s] an employer from interfering (through retaliation) with
an employee’s efforts to secure or advance enforcement of [Title
VII]’s basic guarantees.” Burlington, 548 U.S. at 63.
“Retaliation claims . . . are evaluated using a three-step
burden-shifting analysis. First, the plaintiff must establish a
prima facie case of retaliation.
a

presumption

of

retaliation

If the plaintiff succeeds, then
arises

and

the

employer

must

articulate a legitimate, non-retaliatory reason for the action that
the plaintiff alleges was retaliatory. If the employer succeeds at
the second stage, then the presumption of retaliation dissipates
23

and the plaintiff must show that retaliation was a substantial
reason for the complained-of action.”

Fincher v. Depository Tr. &

Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (citations
omitted).

To establish a prima facie case of retaliation, “a

plaintiff must adduce evidence sufficient to permit a rational
trier of fact to find [1] that [ ] he engaged in protected
participation or opposition under Title VII . . ., [2] that the
employer was aware of this activity, [3] that the employer took
adverse action against the plaintiff, and [4] that a causal
connection exists between the protected activity and the adverse
action, i.e., that a retaliatory motive played a part in the
adverse employment action.”

Kessler v. Westchester Cty. Dep’t of

Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006).

For the reasons

set forth below, the Court finds(1) that plaintiff has failed to
establish a prima facie case of retaliation and (2) that there was
no causal connection between protected activity and the adverse
employment actions taken by defendant.

Moreover, the Court finds

that defendant had legitimate, non-retaliatory, non-pretextual
reasons for its actions.
1.
As

a

Engagement in Protected Activity

threshold

matter,

plaintiff

has

failed

to

present

credible evidence that he engaged in protected activity.

“A

plaintiff engages in ‘protected activity’ when []he (1) opposes
employment practices prohibited under Title VII; (2) makes a charge
24

of

discrimination;

or

(3)

participates

in

proceeding or hearing arising under Title VII.”
on

the

Lake

Hudson

Hotels,

LLC,

914

an

investigation,

Bundschuh v. Inn

F.Supp.2d

395,

405

(W.D.N.Y.2012). “[I]n order to constitute a protected activity for
purposes of a retaliation claim, the complaint must be related to
discrimination on a basis prohibited by Title VII.”
Hofstra Univ., 842 F.Supp.2d 489, 500 (E.D.N.Y. 2012).

Bennett v.
Moreover,

the plaintiff must have had a “good faith, reasonable belief that
the underlying challenged actions of the employer violated the
law.”

Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers,

P.C., 716 F.3d 10, 14 (2d Cir. 2013)(internal quotation omitted).
Here, there is simply no evidence that any of the complaints
made by plaintiff were related to unlawful discrimination, or that
he had a good faith, reasonable belief that Title VII had been
violated.

Plaintiff’s grievances related to Ms. Weaver, Ms.

Hancoski, and Ms. Sanders made no mention whatsoever of racial or
gender bias, nor was there any other information contained therein
to put defendant on notice that plaintiff was claiming unlawful
discrimination. “[I]it is objectively unreasonable for a plaintiff
to believe that conduct not motivated by membership in a protected
class is unlawful.”

Davis v. NYS Dep’t of Corr. Attica Corr.

Facility, 110 F. Supp. 3d 458, 463 (W.D.N.Y. 2015) (citing Johnson
v. City Univ. of N.Y., 48 F.Supp.3d 572, 577 (S.D.N.Y. 2014)).
Indeed, at his deposition, plaintiff testified that he could not

25

answer

a

question

regarding

whether

Ms.

Hancoski’s

and

Ms.

Uerkvitz’s allegations against him were motivated by discriminatory
animus.

Under these circumstances, the Court concludes that

plaintiff cannot demonstrate that he engaged in protected activity
and,

accordingly,

cannot

establish

a

prima

facie

case

of

retaliation.
2.

Causal Connection

Assuming that plaintiff had engaged in protected activity, he
has failed to produce competent evidence of any connection between
that activity and any adverse employment action.

“Proof of a

causal connection between the protected activity and adverse action
can be shown either: (1) indirectly, by showing that the protected
activity was followed closely by discriminatory treatment, or
through other circumstantial evidence such as disparate treatment
of

fellow

employees

who

engaged

in

similar

conduct;

or

(2)

directly, through evidence of retaliatory animus directed against
the plaintiff by the defendant.”

Brown v. Xerox Corp., 170 F.

Supp. 3d 518, 529–30 (W.D.N.Y. 2016).

Here, there is neither

direct nor indirect evidence of retaliatory animus.

Although

plaintiff has made a conclusory argument that other employees’
complaints were taken more seriously than his, he has failed to
produce

any

competent

evidence

to

substantiate

that

claim.

Moreover, there is evidence in the record that plaintiff was
complaining about his coworkers as early as July 2009, yet no

26

adverse action was taken against him until September 2010.

“This

is simply too remote to support a prima facie case of causation
based on temporal proximity.”

Id. at 530

(finding that a lapse of

nine to eighteen months between the alleged protected activity and
the adverse employment action was insufficient to show a causal
relation).

Plaintiff’s attempt to set forth a prima facie claim

for retaliation therefore also fails on this ground.
3.
Finally,

Non-Pretextual, Legitimate, Non-retaliatory Reasons
the

Court

finds

that,

even

if

plaintiff

could

establish a prima facie case of retaliation, defendant has set
forth legitimate, non-discriminatory reasons for its actions, and
there is no evidence those reasons are pretextual.

“A plaintiff

may prove that retaliation was a but-for cause of an adverse
employment action by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered
legitimate, nonretaliatory reasons for its action.”
Andalex Grp., LLC, 737 F.3d 834, 846 (2d Cir.2013).

Kwan v.
“Temporal

proximity alone is insufficient to defeat summary judgment at the
pretext stage.”

Id. at 847. Here, and as previously discussed,

plaintiff has failed to produce or identify any competent evidence
contradicting

or

otherwise

calling

proffered reasons for its actions.

into

question

defendant’s

Accordingly, defendant is

entitled to summary judgment on plaintiff’s retaliation claim.

27

E.

Plaintiff’s Pending Sanctions Motions

The Court notes that plaintiff has filed two motions for
sanctions against defendant (Docket Nos. 190, 213), each of which
asks the Court to determine that defendant (or its agents) have
committed perjury and to grant judgment to plaintiff as a sanction.
The Court has reviewed these motions and finds that plaintiff has
presented no competent evidence of perjury by defendant or its
agents.
sanction,

Moreover, to the extent that plaintiff seeks a criminal
such

relief

is

unavailable

in

this

civil

matter.

Accordingly, plaintiff’s pending motions for sanctions are denied.
IV. Conclusion
For the reasons set forth above, the Court grants defendant’s
motion for summary judgment (Docket No. 182) and denies plaintiff’s
cross-motion for summary judgment(Docket No. 209).

The Court also

denies motions for sanctions (Docket Nos. 190, 213).

The Clerk of

the Court is instructed to enter judgment in favor of defendant and
to close the case.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

September 20, 2017
Rochester, New York

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