Jordan v. County of Chemung et al
DECISION AND ORDER granting in part and denying in part 50 Motion for Summary Judgment. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 9/5/17. (JPL)
UNITED STATES DISTRJCT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
COUNTY OF CHEMUNG, CHRJSTOPHER
J. MOSS, WILLIAM A. SCHROM, JOHN
DOE(S), and JANE DOE(S),
Plaintiff Edith Jordan ("Plaintiff') filed this action on May 14, 2013, complaining
of violations of the First and Fourteenth Amendments, the Family Medical Leave Act, 29
U.S.C. §§ 2601, et seq. ("FMLA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL")
and the New York Constitution. (Dkt. 1). The parties have completed discovery. (See
Defendants County of Chemung, New York ("Chemung County" or "the
County"), Christopher J. Moss ("Moss"), and William A. Schrom ("Schrom")
(collectively, "Defendants") moved for summary judgment on August 1, 2016. (Dkt. 50).
Plaintiff responded (Dkt. 55), and Defendants replied to Plaintiffs response. (Dkt. 59).
Oral argument was held on January 20, 2017, at which time the Court reserved decision.
(See Dkt. 64 ).
For the reasons stated below, Defendants' motion for summary judgment 1s
granted in part and denied in part.
Plaintiff was employed by the Chemung County Sheriff's Office as a part-time
Corrections Officer in the Chemung County Jail ("the Jail"), starting in August 2006.
(Dkt. 50-18 at ,i,i 1, 14; Dkt. 55-1 at 51; Dkt. 55-18 at ,i,i 1, 14). At all relevant times,
Moss was the Sheriff and Schrom was the Undersheriff ofChemung County. (Dkt. 50-18
at ,i,i 3-4; Dkt. 50-3 at ,i l; Dkt. 51 at ,i l; Dkt. 55-18 at ,i,i 3-4). Major John Hamula
("Hamula") was the superintendent of the Jail (Dkt. 50-18 at ,i 9; Dkt. 55-18 at ,i 9);
Captain Charles Wilson ("Wilson") was responsible for Jail administration and
operations (Dkt. 50-18 at
Dkt. 55-18 at
and Daniel Mandell ("Mandell"), a
Lieutenant and then Captain, was Plaintiff's supervisor (Dkt. 50-18 at
Dkt. 55-18 at
Plaintiff was initially hired to work only as needed, on a fill-in basis for other
corrections officers, but was later given regular, prescheduled shifts on Tuesdays and
Sundays. (See Dkt. 50-18 at
,r,r 15-16; Dkt.
,r 15-16; see also Dkt.
55-1 at 52).
Plaintiff was a competent employee when she worked. (Dkt. 50-18 at ,r 17; Dkt. 5 5-18 at
On or about June 18, 2010, Plaintiff submitted an FMLA request, seeking
intermittent leave "to attend to her sick children and/or their personal needs." (Dkt. 5018 at
Dkt. 55-18 at
see, e.g., Dkt. 55-1 at 121). On June 28 or 29, 2010,
These facts are undisputed based upon the parties' Local Rule 56 statements of
undisputed facts. (See Dkt. 50-18; Dkt. 55-18).
Plaintiff requested that Wilson remove her from her regularly scheduled Tuesday shift.
(Dkt. 50-18 at
'i! 22; Dkt. 55-7 at 2; Dkt. 55-18 at 'i! 22). The County accepted and
approved Plaintiffs FMLA request on June 30, 2010. (Dkt. 50-18 at
'i! 23; Dkt. 55-18 at
Plaintiff last appeared for work on December 9, 2010. (Dkt. 50-18 at
'i! 27; Dkt.
55-18 at 'i! 27). Plaintiff submitted a claim for unemployment on August 30, 2010, which
was opposed by the Chemung County Sheriffs Office. (Dkt. 50-18 at
'i! 30; see Dkt. 55-
'i! 30). The County ultimately terminated Plaintiffs employment on September 28,
2011. (Dkt. 55-12 at 2).
Plaintiffs 11 causes of action are: (1) violation of the FMLA by Chemung
County; (2) violation of the Fourteenth Amendment's Due Process Clause by all
Defendants; (3) gender discrimination under Title VII by Chemung County; (4) gender
discrimination under the NYSHRL by Moss and Schrom; (5) violations of the Equal
Protection Clause of the Fourteenth Amendment by all Defendants; (6) retaliation in
violation of the First Amendment by all Defendants; (7) retaliation in violation of Title
VII by Chemung County; (8) retaliation in violation of the NYSHRL by Moss and
Schrom; (9) violation of the New York State Constitution, Article I § 11 by all
Defendants; ( 10) violation of the New York State Constitution, Article I § 6 by all
Defendants; and (11) violation of the New York State Constitution, Article I § 8 by all
Defendants. (Dkt. 1). Defendants seek summary judgment on each cause of action. (See
The Court first addresses Plaintiffs FMLA claim, then proceeds to discuss her
Due Process claim, Title VII claims, First Amendment claim, Equal Protection Clause
claim, and, finally, her claims under the NYSHRL and the New York State Constitution.
Standard of Review
Federal Rule of Civil Procedure 56 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 the
light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party.
See 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).
Plaintiff's FMLA Claim Survives Summary Judgment in Part
Plaintiff claims a violation of the FMLA against Chemung County. (Dkt. 1 at
,i,i 20-24). The County argues that Plaintiffs FMLA claim fails as a matter of law. (Dkt.
50-19 at 4-8).
FMLA allows eligible employees up to a total of 12 weeks of unpaid leave during
any 12-month period to allow an employee to care "for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son, daughter, or parent has a serious health
29 U.S.C. § 2612(a)(l)(C).
"[A]t the end of an employee's leave[,] the
employee has the right to return to the position [s]he held before the leave or its
equivalent. ... " Sista v. CDC !xis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006) (citing
29 U.S.C. § 2614).
A state employee may seek equitable relief or damages against a state employer if
the employer interferes with, restrains, or denies the exercise of FMLA rights under
§ 2612(a)(l)(C). 29 U.S.C. § 2615(a)(l); Nev. Dep't of Human Res. v. Hibbs, 538 U.S.
721, 724-25 (2003). But see Coleman v. Court ofAppeals of Md., 566 U.S. 30, 33 (2012)
(disallowing money damages suits against states for violations of§ 2612(a)(l)(D)).
The regulations promulgated pursuant to the FMLA explain that
'" [i]nterfering with' the exercise of an employee's rights would include, for
example, not only refusing to authorize FMLA leave, but discouraging an
employee from using such leave," 29 C.F.R. § 825.220(b), and that "[a]n
employer is prohibited from discriminating against employees or
prospective employees who have used FMLA leave." 29 C.F.R.
Potenza v. City ofN.Y., 365 F.3d 165, 167 (2d Cir. 2004).
In a general sense, an employee brings an "interference" claim when her
employer has prevented or otherwise impeded the employee's ability to
exercise rights under the FMLA. "Retaliation" claims, on the other hand,
involve an employee actually exercising her rights or opposing perceived
unlawful conduct under the FMLA and then being subjected to some
adverse employment action by the employer. The two types of claims
serve as ex ante and ex post protections for employees who seek to avail
themselves of rights granted by the FMLA.
Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.2d 158, 166 (2d Cir. 2017)
As a threshold matter, the Court notes that although the complaint fails to specify
whether Plaintiff raises an interference and/or retaliation claim, it is properly read as
raising both types of FMLA claims. Plaintiff alleges that Chemung County "intentionally
and willfully interfered with and denied the exercise of rights provided under the FMLA
by removing her from the work schedule, taking away all of her hours, and then
discharging her." (Dkt. 1 at ,i 23). And, although clearer pleading would have been
preferable, the Court reads Plaintiff's complaint to assert that Chemung County removed
Plaintiff's regularly scheduled Sunday shifts and then terminated her in retaliation for
Plaintiff's exercise of FMLA rights.
This is sufficient to plead an FMLA retaliation
Plaintiff's FMLA Interference Claim Fails
[T]o prevail on a claim of interference with  FMLA rights, a plaintiff must
establish: 1) that she is an eligible employee under the FMLA; 2) that the
defendant is an employer as defined by the FMLA; 3) that she was entitled
to take leave under the FMLA; 4) that she gave notice to the defendant of
her intention to take leave; and 5) that she was denied benefits to which she
was entitled under the FMLA.
Graziadio v. Culinary Inst. ofAm., 817 F.3d 415,424 (2d Cir. 2016).
Here, the County does not dispute that Plaintiff was eligible for FMLA benefits,
that it is an employer as defined by the FMLA, that Plaintiff was entitled to take leave
under the FMLA, and that she gave notice to Wilson of her intent to take such leave.
(See Dkt. 50-18 at ,i,i 21-24 ).
Plaintiff took leave to care for her son, pursuant to
§ 2612(a)(l)(C). (See Dkt. 55-1 at 121). However, the County argues that Plaintiff's
interference claim fails because there is no evidence to show interference with Plaintiff's
FMLA rights. (0kt. 50-19 at 5-8). 2 The Court agrees.
Plaintiff admits in her papers that her "FMLA request was accepted and approved
by [Chemung County] on June 30, 2010." (Dkt. 55-18 at 123). Plaintiff also admitted
during her deposition that her FMLA leave request was approved. (Dkt. 55-1 at 147).
Plaintiff was not denied intermittent leave between the time her leave request was
approved and when she was removed from the Sunday and Tuesday work schedule. (Id.
at 149-50). Plaintiff was removed from the Tuesday schedule when she requested to be
removed. (0kt. 55-2 at 1, 46). Thus, Plaintiff has failed to identify any denial of FMLA
benefits, and her interference claim fails as a matter of law. See Douyon v. N. Y C. Dep 't
of Educ., 665 F. App'x 54, 57 (2d Cir. 2016) (affinning where "[the plaintiff] failed to
adduce evidence ... that the defendants denied her benefits to which she was entitled
under the FMLA"); Thomsen v. Stantec, Inc., 483 F. App'x 620, 622 (2d Cir. 2012)
(finding that the plaintiff failed to show FMLA interference where there was no evidence
The pmiies incorrectly apply the McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), burden-shifting test to Plaintiff's FMLA interference claim. (See Dkt. 50-19
at 6-8). In this Circuit, the burden-shifting test does not apply to interference claims; it
applies only to retaliation claims. Sista v. CDC !xis N. Am., Inc., 445 F.3d 161, 176 (2d
Cir. 2006) ("[T]his Court determined only that retaliation claims would be governed by
McDonnell Douglas analysis."); see also Graziadio v. Culinary Inst. of Am., 817 F.3d
415, 424-31 (2d Cir. 2016) (applying the burden-shifting framework to a retaliation
claim, but not to an interference claim); Potenza v. City of N. Y, 365 F.3d 165, 168 (2d
Cir. 2004) (discussing out-of-Circuit caselaw and finding "it would be appropriate to
apply the McDonnell Douglas analysis to claims of retaliation-where the employer's
intent is material-but not to assertions of interference-where the question is simply
whether the employer in some manner impeded the employee's exercise of his or her
that the employer "refused to authorize any FMLA leave or discouraged [the plaintiff]
from using such leave").
Plaintiff argues that she requested she be removed from her Tuesday shifts only,
but that she was "penalized" for not working the Tuesday shift with the removal of her
Sunday shift as well. (Dkt. 5 5-17 at 7-8). Plaintiff further argues that once she obtained
child care in August 2010, presumably obviating her need for FMLA leave, she was not
restored to her regularly scheduled Tuesday and Sunday shifts.
(Id. at 8).
arguments sound in retaliation, not interference as Plaintiff suggests, because the
violations were after she exercised her FMLA benefits.
Cf Shultz v. Congregation
Shearith Israel of N. Y C., _ F .3d _, 2017 WL 3427130, at *6 (2d Cir. Aug. 10, 2017)
(finding that an employee's termination "weeks before she was scheduled to commence"
FMLA leave was unlawful interference (emphasis added)). In other words, according to
Plaintiffs own allegations, she was not denied FMLA benefits, but rather she was
penalized for exercising her FMLA rights.
Plaintiff's FMLA Retaliation Claim Survives in Part
FMLA retaliation claims are analyzed under the familiar McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), burden-shifting test. Potenza, 365 F.3d at 168;
Graziadio, 817 F.3d at 429. To establish a prima facie case of FMLA retaliation, the
plaintiff must show "that 1) [s]he exercised rights protected under the FMLA; 2) [s]he
was qualified for h[er] position; 3) [s]he suffered an adverse employment action; and
4) the adverse employment action occurred under circumstances giving rise to an
inference of retaliatory intent."
Graziadio, 817 F.3d at 429 (citing Donnelly v.
Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012)).
"For purposes of the FMLA's anti-retaliation provision, a materially adverse
action is any action by the employer that is likely to dissuade a reasonable worker in the
plaintiffs position from exercising [her] legal rights." Millea v. Metro-N R.R. Co., 658
F3d 154, 164 (2d Cir. 2011 ); see also id. at 166 ("[W]e hold that the definition of
·materially adverse employment action' aiiiculated by the Supreme Court in [Burlington
N. & Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006)] applies to FMLA retaliation
claims."). "' [P]etty slights, minor annoyances, and simple lack of good manners will not'
give rise to actionable retaliation claims." Id. (quoting Burlington N, 548 U.S. at 68).
"Alleged acts of retaliation must be evaluated both separately and in the aggregate, as
even trivial acts may take on greater significance when they are viewed as part of a larger
course of conduct." Tepperwien v. Entergy Nuclear Operations, 663 F.3d 556, 569 (2d
Cir. 2011 ). "[T]here are no bright-line rules with respect to what constitutes an adverse
employment action for purposes of a retaliation claim, and therefore courts must pore
over each case to determine whether the challenged employment action reaches the level
of adverse." Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 721 (2d Cir.
2010) (internal quotation marks and citation omitted).
An inference of retaliatory intent "can be established when there is a basis for a
jury to conclude that 'a causal connection exists between the plaintiffs protected activity
and the adverse action taken by the employer."' Donnelly, 691 F.3d at 152 (citation
omitted). "The plaintiffs burden of proof at the prima facie stage 'is not onerous."'
Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (citation omitted); see, e.g.,
Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995) ("[T]he showing the
plaintiff must make as to the elements of the prima facie case in order to defeat a motion
for summary judgment is 'de 1ninimis."' (citation omitted)). At the prima facie stage,
temporal proximity between the exercise of FMLA benefits and an adverse employment
action may give rise to a retaliatory inference, as will employer penalties for absences
which were permitted by FMLA. Donnelly, 691 F.3d at 152; see also Ojfor v. Mercy
Med. Ctr., 676 F. App'x 51, 54 (2d Cir. 2017) (finding that temporal proximity between
an adverse employment action and FMLA leave was sufficient to give rise to an inference
of retaliatory intent); Sista, 445 F.3d at 176 (noting that retaliation can be shown where
FMLA absences are a "negative factor" in a decision to fire an employee ( citing
Bachelder v. Am. W Airlines, Inc., 259 F.3d 1112, 1126 (9th Cir. 2001))).
"If the plaintiff makes out a prima facie case, the defendant must demonstrate a
legitimate, non-discriminatory reason for its actions; if the defendant does so, the plaintiff
must then show that defendant's proffered explanation is pretextual." Graziadio, 817
F.3d at 429 (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.
1996)). The plaintiff must "set forth evidence from which a factfinder could reasonably
conclude that the legitimate and nondiscriminatory explanations given" by the defendant
for the adverse employment action are pretextual. Thomsen, 483 F. App'x at 623. A
mere scintilla of evidence is insufficient to establish pretext. Alexander v. Bd. of Educ. of
City of NY, 648 F. App'x 118, 122 (2d Cir. 2016) (citing Hayut v. State Univ. of NY,
352 F.3d 733, 743 (2d Cir. 2003)).
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Conclusory assertions, unsupported by the record, are "plainly insufficient to
survive summary judgment." Thomsen, 483 F. App'x at 623 (citing Goenaga v. March of
Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)). However, "[a] plaintiff may
prove retaliation by demonstrating weaknesses, implausibilities, inconsistencies, or
contradictions in the employer's proffered legitimate, nonretaliatory reasons for its
action." Alexander, 648 F. App'x at 122 (quoting Zann Kwan v. Andalex Grp. LLC, 737
F.3d 834, 846 (2d Cir. 2013)).
As described below, Plaintiff has established a genuine issue of material fact as to
the County's alleged retaliatory elimination of Plaintiffs regularly scheduled Sunday
shift, opposition to Plaintiffs unemployment benefits application, and refusal to reinstate
regularly scheduled shifts. However, considering the evidence in the light most favorable
to Plaintiff, no rational jury could find in her favor on her claim of retaliatory
Plaintiff Has Established a Prima Facie Case
The County does not challenge that Plaintiff has satisfied the first two elements of
a primafacie retaliation claim. (See Dkt. 59-1 at 9).
Plaintiff claims that Chemung County was motivated by retaliatory intent when it:
( 1) removed her prescheduled Sunday shift, even though she only requested FMLA leave
for her Tuesday shifts; (2) opposed Plaintiffs application for unemployment benefits;
(3) refused to restore Plaintiffs regularly scheduled shifts once she secured child care;
and (4) terminated Plaintiffs employment. (Dkt. 55-17 at 7-11 ).
- 11 -
Elimination of Plaintiff's Sunday Shift
Plaintiff's removal from the Sunday shift constitutes an adverse employment
action. Plaintiff filed for FMLA benefits on June 17, 2010. (Dkt. 55-10). In her filing,
Plaintiff requested intermittent leave. (Id. at 2). Although the FMLA form asks the
applicant to specify the requested schedule for intermittent leave, Plaintiff stated only that
she "will have to take time off to attend to sick children and/or their personal needs
pertaining to illness" (id.), and that the "[d]ay(s) will be intermittently [sic] depending on
the need[s] ofmy child at that time." (Id. at 5).
Although Plaintiff's FMLA request failed to specify whether or not she intended
to keep her regularly scheduled shifts (see Dkt. 55-1 at 130), on June 29, 2010, Plaintiff
emailed Wilson to tell him that she would no longer be available to work her regularly
scheduled Tuesday shift, but that she still intended to work the Sunday shift. (Dkt. 55-7
at 2). Plaintiff requested that Wilson "back fill" her Tuesday shift "for the remainder of
201 O" and place Plaintiff on the call-in list. (Id.). Plaintiff did not request that she be
taken off the Sunday schedule. (See id.). Indeed, Wilson confirmed by email on June 29,
2010, that Plaintiff needed to be removed from the Tuesday schedule, but not from the
Sunday schedule. (Dkt. 55-13 at 2). The removal from the Sunday shift-which Plaintiff
constituting half of her regularly scheduled hours each week. The unrequested removal
of work hours is sufficient to dissuade a reasonable employee from exercising FMLA
rights, especially where, as here, the employee is paid by the hour. As such, Plaintiff has
established that her reduction in hours was an adverse employment action.
- 12 -
The record also includes sufficient evidence to satisfy Plaintiff's burden to show
an inference that the removal of her Sunday shift was done in retaliation for her use of
FMLA leave. Plaintiff was removed from the Sunday schedule as of July 27 or 28, 2010.
(See Dkt. 55-4 at 2). The County alleges that the Sunday hours were taken away because
the Sunday and Tuesday shifts "were part of a package deal." (Id.; see, e.g., Dkt. 50-5 at
,i 22). When Plaintiff requested to be removed from her Tuesday shift, she was also
removed from the Sunday shift and placed on the call-in list. (Dkt. 55-2 at 1). Plaintiff
testified that she did not understand that the shifts were a package deal, and that the shifts
were given to her on separate occasions. (Dkt. 55-1 at 122-23). Viewing the evidence in
the light most favorable to Plaintiff, the days were not originally scheduled as a package
deal, and, as described in more detail below, there is little evidence of the shifts being
linked. Plaintiff's Sunday shift was taken away after she requested FMLA leave for her
Tuesday shift only. This sequence of events gives rise to an inference that the Sunday
shift was removed in retaliation for Plaintiff's use of FMLA.
Thus, Plaintiff has
established a prima Jae ie case of retaliation based on the removal of her Sunday shift.
The County's Opposition to Plaintiff's Application for
Plaintiff has also established that the County's opposition to her application for
unemployment was an adverse employment action.
If considered on its own, the
County's opposition to Plaintiff's application for unemployment benefits (see Dkt. 55-17
at 9), may not be an adverse employment action. See, e.g., Wright v. City of Syracuse,
No. 5:10-CV-0661 (GTS/TWD), 2014 WL 1293527, at *20 (N.D.N.Y. Mar. 31, 2014)
- 13 -
(stating that "an employer's opposition of a terminated employee's application for
unemployment benefits is not adverse action for purposes of a retaliation claim," and
collecting cases); Roman v. Cornell Univ., 53 F. Supp. 2d 223, 245 (N.D.N.Y. 1999)
("[The defendant's] opposition to [the] plaintiffs application for unemployment
benefits ... is not an adverse employment action.
This was a permissible, non-
discriminatory legal position taken by [the defendant] in opposition to [the] plaintiffs
application for such benefits.").
However, when viewed in light of Plaintiffs other
allegations, see Tepperwien, 663 F.3d at 569, it would be reasonable for an employee in
this situation to be dissuaded from filing an FMLA claim.
And, when considered in
conjunction with the County's possibly retaliatory reduction of Plaintiffs work hours,
Plaintiff has established an inference of retaliatory intent. Thus, Plaintiff has established
the de minimis showing required to carry her burden at this stage as to the County's
opposition to her application for unemployment benefits.
The County's Refusal to Restore Plaintiff to Regularly
Similarly, Plaintiff has met her burden as to Chemung County's refusal to restore
Plaintiffs regularly scheduled shifts after she secured childcare.
This refusal could
constitute a materially adverse change in the terms or conditions of Plaintiffs
employment. When Plaintiff initially requested to be removed from the Tuesday shift,
she explicitly asked to "back fill" her Tuesday shift "for the remainder of 2010." (Dkt.
55-7 at 2). She did not ask to back-fill her Sunday shift, as she never requested removal
from the Sunday schedule. After solving her childcare issue, Plaintiff requested that her
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regularly scheduled shifts be restored on both July 25, 2010, and September 17, 2010.
(Dkt. 55-8 at 2; Dkt. 55-11 at 2). Despite these requests, Plaintiff was not restored to
either the Sunday or Tuesday shifts, but remained only on the call-in list. (Dkt. 55-16 at
Considered within the context of the other adverse employment actions, the
County's refusal to reschedule Plaintiffs shifts could constitute an adverse employment
action. And, as with the County's removal of Plaintiffs Sunday shift, there is a minimal
inference that the refusal to reinstate Plaintiffs regularly scheduled shifts was in
retaliation for Plaintiffs exercise of FMLA benefits.
Plaintiffs termination plainly constitutes an adverse action, Mathirampuzha, 548
F .3 d at 7 8, but whether it gives rise to an inference of retaliation presents a closer
question. Plaintiff asse1is that an inference can be drawn because: (1) the termination
occurred "about the time that the FMLA would have been over with" (Dkt. 55-2 at 58);
and (2) she was "disciplined" for missing a Tuesday shift and failing to call the Jail after
her FMLA leave was approved. (See Dkt. 55-16 at 4).
Plaintiffs first rationale is clearly lacking support m the record.
termination did not occur "about the time that the FMLA would have been over with."
(See Dkt. 55-2 at 58). Plaintiffs request for FMLA intermittent leave was approved on
June 30, 2010.
(Dkt. 50-18 at ,i 23; Dkt. 55-18 at ,i 23).
According to Chemung
County's FMLA approval, Plaintiffs FMLA request expired on June 17, 2011. (Dkt. 5015 at 22). Plaintiff was not terminated until September 28, 2011, more than three months
later. (Dkt. 55-12 at 2). Even if some inference could be drawn because Plaintiff was
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fired a few months after her FMLA leave expired, Plaintiff informed her supervisors that
she no longer needed to use FMLA leave on July 25, 2010, and again on September 17,
2010. (Dkt. 55-8 at 2; Dkt. 55-11 at 2). The notification was sent more than a year
before Plaintiff was terminated. Although Plaintiff's burden of showing an inference of
retaliation is de minimis, see Cronin, 46 F.3d at 203-04, the timing of her termination
fails to meet even that low burden. See Abrams v. Dep 't of Pub. Safety, 764 F.3d 244,
254 (2d Cir. 2014) (finding that to establish retaliation under Title VII, five months
between the exercise of a federal right and an adverse employment action "might be
enough to establish a prima facie case" (emphasis added)); cf Offor, 2017 WL 253616, at
*2 (finding that, at the pleading stage, allegations than an adverse employment event
occurred within one month of exercising FMLA rights was sufficient to give rise to an
inference of retaliatory intent).
Plaintiff offers nothing else to support her claimed
inference of discrimination-under the circumstances, the record simply does not support
an inference even under the low threshold necessary to establish a prima facie case. The
timing between Plaintiff's exercise of her FMLA rights and the termination of her
employment is just too remote.
It is a closer question whether Plaintiff's argument that she was "disciplined" for
using FMLA leave, allegedly leading to her termination, meets the de minimis
requirement. (See Dkt. 55-17 at 10-11 ). The record before the Court includes a "Notice
and Statement of Charges" dated "July 201 O" relating to Plaintiff's "no call/no show"
absence on Tuesday, July 6, 2010. (Dkt. 55-5). According to the Notice, Plaintiff "failed
to make any notification regarding [her] absence to a member of the supervisory
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staff. ... " (Id. at 3). Plaintiffs scheduled shift on July 6, 2010, was Plaintiffs "second
no call/no show absence and third unexcused absence" between March 2010 and July
2010. (Id. at 2). 3
Plaintiff actually infonned supervisory staff that she did not intend to appear for
work on July 6, 2010, because she was using FMLA intermittent leave. By email dated
June 29, 2010, Plaintiff informed Wilson (with a carbon copy to her shift supervisor) that
"[ e]ffective immediately ... I will not be able to work B-Line on Tuesday" and requested
that Wilson "back fill" her Tuesday shifts for the remainder of 2010. (Dkt. 55-7 at 2).
Plaintiff requested removal from her Tuesday shift due to "family obligations" for which
she had submitted an FMLA leave request. (Id.). Thus, despite notifying Wilson and her
shift supervisory, Plaintiff was disciplined for not showing up for her shift on Tuesday,
July 6, 2010.
Plaintiffs failure to show may have been cited as part of the reason that Plaintiff
was later terminated. The documentation suggests the alleged no call/no show absence
on July 6, 2010, was at least a small part of the County's calculus in terminating her.
Plaintiffs termination letter points to "documentation starting back in July 2010 where
there were 3 separate occasions that you either turned down, didn't return calls for work
or agreed to work then cancelled the hours .... " (Dkt. 55-12 at 2). The termination letter
also goes on to document 44 other opportunities that Plaintiff was offered hours but either
refused or failed to respond. (Id.). The termination letter does not explicitly reference
Although the Notice includes a sanction of "[t]ermination," Plaintiff was not
actually terminated until more than a year later. (See id. at 3).
- 17 -
July 6, 2010 (see id.), but Wilson's February 11, 2011, memo to Schrom notes the three
dates in July 2010-a July 1 absence, the July 6 no call/no show absence, and a July 28
failure to return a call offering hours. (Dkt. 50-15 at 44 ). The Court also notes that both
the July 2010 "Notice and Statement of Charges" recommended termination due, in part,
to the July 6, 2010 absence (Dkt. 55-5 at 3), and an email from Moss to Wilson on July 6,
2010, also recommended termination because of that absence.
Despite those contemporaneous recommendations that Plaintiff be terminated, she
was not actually terminated until more than a year later.
(See Dkt. 55-12 at 2).
Nonetheless, Plaintiff has shown a de minimus inference of retaliatory intent, although
the inference is only minimal given the length of time between the July 6, 2010, absence
and the date of her termination, and the fact that she was provided numerous other
opportunities to work in the interim of which she failed to take advantage.
The County Has Put Forth Legitimate, Non-Retaliatory Reasons
for the Adverse Employment Actions
The County has put forth legitimate, non-discriminatory reasons for removing
Plaintiff's Sunday shift, and for terminating Plaintiff. As to the removal of Plaintiff's
regularly scheduled Sunday shift, the County claims that the Sunday and Tuesday shifts
were provided as "a package deal-the two days came together." (Dkt. 50-5 at ,i 22;
see, e.g., Dkt. 50-3 at ,i 12). When Plaintiff requested to be removed from her Tuesday
shift, she was also removed from the Sunday shift and placed on the call-in list. (Dkt. 505 at ,i 23 ). Mandell testified that Plaintiff was placed on the call-in list "in an attempt to
comply with her FMLA application and based upon her communication with Captain
- 18 -
Wilson wherein she stated that she could not work her regularly scheduled days." (Id. at
126; see, e.g., id. at 130).
The County's reasons for removing Plaintiff from her
regularly scheduled shifts are facially valid as non-retaliatory attempts to comply with
The County also put forward legitimate reasons for opposmg Plaintiff's
application for unemployment benefits. Plaintiff was on the call-in list when she applied
for unemployment, and she had been requesting shifts around the time that she applied
for unemployment. (See Dkt. 50-19 at 75-79, 99) The County asserts that it opposed
Plaintiff's unemployment benefits because it felt Plaintiff was still employed at the time
that she applied. (See Dkt. 59-1 at 11 ). There is some support for this reasoning in the
(See Dkt. 50-15 at 111 (showing Schrom's intention to oppose Plaintiff's
application because she was still employed by the County)). Thus, the County has put
forward a legitimate, non-retaliatory reason for opposing Plaintiff's application for
Similarly, the County also put forward legitimate reasons for not providing
Plaintiff with the regularly scheduled shifts after she returned to work. As noted above,
Plaintiff explicitly requested that her Tuesday shifts be filled by another officer for the
rest of 2010.
(Dkt. 55-7 at 2).
Those shifts were filled by another officer, Allison
Lambert. (Dkt. 50-9 at 12). This is a legitimate reason for not reinstating Plaintiff to her
previously scheduled shifts.
Finally, the County put forth legitimate, non-retaliatory reasons for terminating
Plaintiff's employment. Plaintiff had a history of unexcused absences and "an excessive
- 19 -
amount of sick time." (See, e.g., Dkt. 50-15 at 12). Although Plaintiff's annual job
performance evaluations for 2007, 2008, and 2010 are generally positive, her
dependability was evaluated as either "improving" or "unsatisfactory." (Id. at 2-10). Her
December 12, 2007, evaluation states that Plaintiff "needs to be more accessible." (Id. at
Plaintiff's October 9, 2008, evaluation notes Plaintiff "has an issue working her
She calls in sick and backs out of scheduled hours."
(Id. at 6).
Similarly, Plaintiff's September 7, 2010, evaluation states:
[Plaintiff's] attendance over the past 12 months has been unsatisfactory.
She has 12 occasions of sick time use in the past 12 months. She also on
several occasions advised her supervisors that she was unable to work on
days that she was scheduled and part of the daily minimum. She needs to
show a tremendous improvement in dependability over the next 12 months.
(Id. at 9).
A memorandum authored by Mandell on March 25, 2010, notes that Plaintiff used
sick time on sixteen days between January 2009 and March 2010. (Id. at 12). It also
notes that Plaintiff failed to show for her shift without calling on March 25, 2010. (Id.).
Plaintiff was counseled as to her use of sick time and unexcused absences on June 1,
2010. (Id. at 13). These absences occurred before Plaintiff applied for FMLA leave on
Plaintiff also consistently failed to respond to scheduling calls, even after she
notified the County that she intended to return to her regularly scheduled shifts on July
25, 2010. (See Dkt. 55-8 at 2; see also Dkt. 55-11 at 2 (stating that Plaintiff had made
arrangements for child care and could return to her regular Tuesday shift)). Plaintiff
failed to return calls six times in August 2010, six times in September 20 I 0, twice in
- 20 -
October 2010, 13 times in November 2010, and 14 times in December 2010. (Id. at 4445; see, e.g., Dkt. 50-8 at 28, 78; see also Dkt. 50-13 at 25 (Schrom testifying that
"[f]rom July of 2010 to December of 2010 there were 47 occasions that [Plaintiff] was
not available, chose not to come to work, [or] had hours scheduled and backed out. Then
there was [sic]
additional attempts to contact [Plaintiff]
unsuccessful")). Once in August 2010 and again in December 2010, Plaintiff accepted a
call-in shift and then cancelled. (Dkt. 50-15 at 44-45). Plaintiff worked only eight shifts
between August and December 2010. (Id.).
Plaintiff was informed by letter from Schrom dated September 28, 2011, that she
had been terminated. (Dkt. 55-12). The termination letter notes that Plaintiff failed to
respond to two messages from Hamula offering for Plaintiff "to return to work on prescheduled days." (Id. at 2). Hamula called both Plaintiffs home and cell phone numbers
when leaving those messages. (Id.).
Plaintiffs documented dependability issues and failure to accept call-in shifts or
return calls for shifts provides sufficient legitimate, non-retaliatory reasons for Plaintiffs
termination to carry the County's burden at this stage.
Plaintiff Has Shown Issues of Material Fact as to the Removal of
Hours, Refusal to Reinstate Hours, and Opposition to
Having found that the County has put forward legitimate, non-retaliatory reasons
for the adverse employment actions, the burden shifts back to Plaintiff to show that the
stated reasons were pretextual. See Graziadio, 817 F.3d at 429. Plaintiff can meet this
burden as to the removal of her Sunday hours, the County's opposition to Plaintiffs
- 21 -
unemployment benefits application, and refusal to reschedule her for regular hours.
However, Plaintiff cannot establish pretext with respect to her termination.
The County's Removal of Plaintiff's Sunday Shift
The County fails to provide any documentary support for the assertion that
Plaintiff's Sunday and Tuesday shifts were offered as a package deal, or that anyone
understood the shifts were a package deal at the time they were offered.
affidavit does not cite to any documentation in making the assertion that the days came
together. (See Dkt. 50-5 at i122). There is only Mandell's statement that Plaintiff could
not work Sunday if she did not work Tuesday. Schrom's affidavit cites to Dkt. 50-15,
without a pincite, in support of the assertion that the days were inseparable. (Dkt. 50-3 at
i1 12). The 133-page exhibit at Dkt. 50-15 fails to provide any support that, as of the time
that the days were offered in December 2009, Plaintiff needed to work both Sunday and
Tuesday. (See Dkt. 50-15). Additionally, Wilson's email from June 29, 2010, states that
Plaintiff removed herself from the Tuesday shift, but "she is still pre-scheduled to work
Sunday's [sic] through the end of 2010."
(Dkt. 55-14 at 2).
This undercuts the
suggestion that if Plaintiff gave up her Tuesday shift, the Sunday shift had to be removed
The only evidence that Plaintiff's scheduled shifts were inseparable is in a
February 10, 2011, memorandum, authored by Mandell. (See Dkt. 50-15 at 44). That
memorandum was written years after Plaintiff was offered the shifts, and months after
Plaintiff's Sunday hours were eliminated in response to her FMLA request to be taken off
of the Tuesday shift only.
The County has failed to show that there is no issue of
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material fact as to whether Plaintiffs Sunday hours were eliminated in retaliation for her
use of FMLA. As such, summary judgment is not appropriate on this part of Plaintiffs
See, e.g., Alexander, 648 F. App'x at 122 (allowing a plaintiff to
"prove retaliation by demonstrating weaknesses, implausibilities, inconsistencies, or
contradictions in the employer's proffered legitimate, nonretaliatory reasons for its
The County's Opposition to Plaintiff's Unemployment
Summary judgment is also inappropriate with respect to Plaintiffs claim that the
County's opposition to her unemployment benefits was retaliatory. Plaintiff asserts that
the County's stance before the unemployment board shows that their legitimate reasons
were pretextual because they opposed benefits on the grounds that Plaintiff voluntarily
separated from her job. (Dkt. 55-17 at 9-10).
The County argues that the unemployment benefits were opposed because Plaintiff
continued to work for the County.
(Dkt. 59-1 at 11; see also Dkt. 50-15 at 111 ).
However, in their submissions to the unemployment board, it is clear that the benefits
were opposed because Plaintiff was not responding to the offers of call-in hours. (See
Dkt 50-15 at 5 8). In opposing Plaintiffs application, the County argued that Plaintiff
"should be disqualified from receiving benefits because [she] voluntarily separated from
employment without good cause ... " (Dkt. 50-15 at 126), and because she "was not
available for employment. ... " (Id. at 130). The evidence offered by Plaintiff suggests
otherwise, as she repeatedly requested shifts and to be returned to normally scheduled
- 23 -
hours. (See id. at 75-79, 82-87). The County also continually offered her shifts (see id. at
44-45), suggesting, at a minimum, that it knew she was both available for work, and had
not separated from employment. There is a clear issue of material fact as to the County's
true intentions in opposing Plaintiff's application for unemployment benefits. The issue
must be determined by a jury.
The County's Refusal to Reinstate Plaintiff to Regularly
Similarly, summary judgment is inappropriate on Plaintiff's claims of retaliation
in refusing to reinstate regularly scheduled shifts. Following the end of her FMLA leave,
Plaintiff asked to be given scheduled hours. (Dkt. 50-15 at 75). Thereafter, Plaintiff
repeatedly requested that the County provide her with hours. (See id. at 76-79, 82-87).
The County never provided Plaintiff with regularly scheduled shifts; she was left on the
on-call list. Although there is some information in the record suggesting that Plaintiff's
prior shifts had been filled by another officer (Dkt. 50-9 at 12), the County has not met its
burden of showing its entitlement to summary judgment. The record does not show that
the County attempted to provide or offered any other regularly scheduled shifts to
Plaintiff after her FMLA leave ended. Nor does anything in the record state that the
Tuesday and Sunday shifts were completely full, such that there was no room for Plaintiff
to work those shifts as she had before she took FMLA leave. Thus, the County has not
met its burden to show that summary judgment is appropriate on this portion of Plaintiff's
- 24 -
Finally, summary judgment is appropriate on Plaintiff's claim of retaliatory
termination. Plaintiff puts forward no direct evidence that her use of FMLA leave was
the reason she was fired, and the circumstantial evidence fails to suggest that a rational
finder of fact could conclude that Plaintiff's termination was in retaliation for her use of
FMLA benefits. In support of her arguments otherwise, Plaintiff asserts that she was
ready and willing to return to her Sunday and Tuesday shift work as of August 2010, but,
despite her willingness to return to work, she was never added to the schedule. (Dkt. 5517 at 10-11 (citing Dkt. 55-8 at 2)). Plaintiff further claims that she attempted to meet
with Hamula to get her regularly scheduled shifts restored, but that Hamula did not show
up for the meeting. (Id.). Plaintiff fails to offer any evidence that Hamula's absence
from the meeting had anything to do with Plaintiff's FMLA leave. Plaintiff's conclusory
allegations are mere conjecture, unsupported by fact.
Plaintiff also argues that she "called back every time she received a call for shifts."
(Dkt. 55-17 at 19). This argument lacks support in the record. The County puts forward
evidence suggesting that Plaintiff failed to call back on a number of occasions. (See Dkt.
50-15 at 44-45).
Additionally, Plaintiff admitted during her deposition that she had
trouble with receiving calls on her home and cell phones. (Dkt. 55-2 at 2-3; see also Dkt.
50-8 at 8 (email from Lieutenant Terry Lockner ("Lockner") to Plaintiff on December 15,
2010, to which Plaintiff responded, stating that Lockner attempted to call Plaintiff for a
shift but her voicemail "mailbox was full and not accepting any messages")).
- 25 -
And although Plaintiff was improperly disciplined for not showing up or calling
on Tuesday, July 6, 2010, this single instance of potential retaliatory conduct is
insufficient to establish a genuine issue of material fact. The "discipline" provides a de
minimis inference of retaliatory intent, but nothing more.
Plaintiff offers no further
evidence of retaliatory intent. Plaintiffs evidence that her termination was in retaliation
for her use of FMLA benefits meets the low bar to establish a prima facie case, but that
evidence is wholly insufficient to show pretext. See Caldarola v. Calabrese, 298 F.3d at
156 (requiring the non-moving party to "do more than simply show that there is some
metaphysical doubt as to the material facts . . . . ").
As such, summary judgment is
appropriate regarding Plaintiffs claim of retaliatory termination.
Plaintiff's Due Process Claim Must be Dismissed
Defendants argue that Plaintiffs due process claim fails as a matter of law. (Dkt.
50-19 at 8-11 ). Specifically, Defendants argue that a collective bargaining agreement
("CBA") provided sufficient due process such that no pre-deprivation notice or hearing
was required. (Id.).
The Due Process Clause was "'intended to secure the individual from the arbitrary
exercise of the powers of government' ... [and] serves to prevent governmental power
from being 'used for purposes of oppression."' Daniels v. Williams, 474 U.S. 327, 331
( 1986) (citations omitted). To succeed on a due process claim, a plaintiff must establish
that "he or she possesses a constitutionally protected interest in life, liberty, or property,
and that state action has deprived him or her of that interest." Valmonte v. Bane, 18 F.3d
992, 998 (2d Cir. 1994 ). Where a state employee has a property right in her continued
- 26 -
employment under state law, that property right is protected by the Due Process Clause.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539 (1985).
"[O]nce it is determined that the Due Process Clause applies, 'the question
remains what process is due."' Id. at 541 (quoting Morrissey v. Brewer, 408 U.S. 471,
481 (1972)). "An essential principle of due process is that a deprivation ... be preceded
by notice and opportunity for hearing appropriate to the nature of the case." Id. at 542.
Notice must be "reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their
objections." Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,314 (1950). "If a
party receives actual notice that apprises it of the pendency of the action and affords an
opportunity to respond, the due process clause is not offended."
Baker v. Latham
Sparrow bush As socs., 72 F .3d 246, 254 (2d Cir. 1995).
In determining the sufficiency of a hearing, courts address:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see, e.g., Chase Grp. All. LLC v. City of
NY Dep't of Fin., 620 F.3d 146, 150 (2d Cir. 2010).
"A predeprivation hearing has been required when 'the deprivation of property
was pursuant to some established state procedure and "process" could be offered before
any actual deprivation took place to serve as a check on the possibility that a wrongful
- 27 -
deprivation would occur."' Burtnieks v. City of N. Y, 716 F .2d 982, 987 (2d Cir. 1983)
(citation omitted). Generally, states are required to provide tenured employees a hearing
before termination. Dwyer v. Regan, 777 F.2d 825, 831 (2d Cir. 1986) (internal citation
omitted); see also Gilbert v. Hamar, 520 U.S. 924, 929 (1997) ("[P]retermination process
need only include oral or written notice of the charges, an explanation of the employer's
evidence, and an opportunity for the employee to tell his side of the story." (citing
Loudermill, 470 U.S. at 546)); Interboro Inst., Inc. v. Foley, 985 F.2d 90, 92 (2d Cir.
1993) ("The purpose of a pre-deprivation hearing is to ensure that decision-makers have
before them the claimant's legal arguments and do not act on a one-sided or otherwise
incomplete factual presentation.").
However, where a collective bargaining agreement provides for post-deprivation
grievance and arbitration procedures to a challenged employment decision, such
procedures are constitutionally adequate to satisfy due process.
Harhay v. Town of
Ellington Bd. of Educ., 323 F.3d 206,213 (2d Cir. 2003) (citing Narumanchi v. Bd. of Tr.
of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988); Wojcik v. Mass. State Lottery
Comm 'n, 300 F.3d 92, 102 (1st Cir. 2002)). "There is no due process violation where
pre-deprivation notice is provided and the deprivation at issue can be fully remedied
through the grievance procedures provided for in a collective bargaining agreement."
Coolick v. Hughes, 699 F.3d 211,220 (2d Cir. 2012).
Here, Plaintiff was a tenured employee at the time of her termination. (See Dkt.
50-13 at 57-58).
Plaintiff was covered by the CBA in place at the time of her
termination. (See Dkt. 50-13 at 58; see, e.g., Dkt. 50-14 at 2-25 (showing the CBA which
- 28 -
was in effect from January 1, 2011 until December 31, 2012)). The CBA requires "notice
of [any] disciplinary decision" be served in writing on the employee, and that the notice
include "[t]he specific act(s) alleged that warrant disciplinary action and the specific
sanction(s) [to be imposed]." (Dkt. 50-14 at 22). The employee may object in writing by
filing a grievance within 10 days of the notice of discipline. (Id.). An arbitrator will
make a final and binding decision on the discipline if the employee objects. (Id.).
Plaintiff was provided notice of her termination by letter dated September 28,
2011, (Dkt. 55-12 at 2), but she was not provided an opportunity to respond prior to being
terminated. (See Dkt. 50-8 at 2; Dkt. 55-12 at 2). The termination notice letter did not
provide Plaintiff with notice that she could object. (See Dkt. 55-12 at 2).
In opposing summary judgment, Plaintiff argues only that she was entitled to a
pre-deprivation hearing. (Dkt. 5 5-17 at 15). Plaintiff makes no argument regarding the
adequacy of the notice.
Instead, Plaintiff argues that due process required a pre-
Plaintiff relies almost exclusively on New York state trial-level
court and out-of-circuit precedent in making out her federal due process argument. (See
Dkt. 55-17 at 12-15).
Plaintiff's argument is contradicted by clear Second Circuit
precedent. See Coolick, 699 F.3d at 220; Harhay, 323 F.3d at 213.
Additionally, Plaintiff's reliance on Ciambriello v. County of Nassau, 292 F.3d
307 (2d Cir. 2002), is misplaced. In that case, the defendant argued that-through a
collective bargaining agreement negotiated by the plaintiff's union-the plaintiff had
waived his right to pre-termination notice and an opportunity to be heard because the
agreement failed to include such procedural measures. The Ciambriello court noted that
- 29 -
the existence of a collective bargaining agreement is not dispositive on the due process
issue; such an agreement may fail to include all of the requirements of due process. Id. at
321 n.6 ("The fact that collective bargaining agreements might, in some circumstances,
provide all the process that the union members are due obviously does not compel the
conclusion that the CBA at issue here provided all the process that [the plaintiff] was
due."). However, the Second Circuit in Coolick-which was decided after Ciambriellostated that due process requires only pre-termination notice if a collective bargaining
agreement is in place and provides for post-termination grievances. See Coolick, 699
F.3d at 220.
Here, the CBA provides for both pre-termination notice, and for the
submission of post-termination grievances. (Dkt. 50-14 at 22-23). A grieved employee
is also permitted to appeal an unfavorable grievance decision by a supervisor or agency
head "to independent arbitration .... " (Id. at 23). Under Coolick, the CBA is sufficient
to comply with constitutional due process requirements.
The Court also notes that Plaintiff failed to file a timely grievance following her
The CBA requires that any grievance be filed within 10 days of the
disciplinary action. (Dkt. 50-14 at 23 ). Plaintiff was terminated on September 28, 2011.
(Dkt. 55-12 at 2). Her grievance was not filed until January 26, 2012. (See Dkt. 50-17 at
103 ). Defendants denied the grievance because it "far exceed[ ed] the timeline outlined
within the [CBA]." (Dkt. 50-17 at 103). No information in the record suggests that
Plaintiff appealed the denial of her grievance.
Defendants have submitted a properly supported motion for summary judgment,
and Plaintiff has failed to submit sufficient information to create a genuine issue for trial.
- 30 -
The undisputed facts establish that Defendants provided sufficient post-deprivation
remedies through the CBA. Plaintiff failed to take advantage of these remedies in a
As such, summary judgment on Plaintiff's due process claim is
Plaintiff's Title VII Claims
Plaintiff's gender discrimination claim against the County fails as a matter of law.
The County correctly asserts that Plaintiff has failed to establish a prima facie case, and,
even if such a case has been established, Plaintiff has failed to show that the County's
rationales were pretextual. (Dkt. 50-19 at 11-15).
"At the summary-judgment stage, properly exhausted Title VII claims are
ordinarily analyzed under the familiar . burden-shifting framework of McDonnell
Douglas . .. , and its progeny." Mathirampuzha, 548 F.3d at 78. To establish a prima
facie Title VII case, "the plaintiff bears the burden of establishing ... that: '1) [she]
belonged to a protected class; 2) [she] was qualified for the position; 3) [she] suffered an
adverse employment action; and 4) the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory intent."'
omitted). As is noted above, the "plaintiff's burden of proof at the prima facie stage 'is
not onerous."' Id. (citation omitted); see, e.g., Cronin, 46 F.3d at 203-04.
- 31 -
Adverse Employment Actions
Here, it is undisputed that Plaintiff has established the first two prongs of a prima
facie case. (See Dkt. 50-19 at 12-13). She is a female, which is a protected class. See
Sweeney v. Research Found. of State Univ. of NY, 711 F .2d 1179, 1185 (2d Cir. 1983).
Plaintiff was also qualified for her position.
Plaintiff argues that she suffered the following adverse employment actions: the
removal of her Sunday shift; termination; the denial of training opportunities and
promotion; and not being allowed to leave her station after having a foreign substance
thrown on her by an inmate. (Dkt. 55-17 at 16-17)
As noted above, the removal of Plaintiffs shifts, and her termination were adverse
To the extent that Plaintiff alleges she was denied training
opportunities and promotion, such events qualify as adverse employment actions. See
Moskowitz v. Coscette, 3 F. App'x 1, 5 (2d Cir. 2001) (including as adverse employment
actions "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and
reprimand" (emphasis added) (citation omitted)); Albuja v. Nat'! Broad. Co. Universal,
Inc., 851 F. Supp. 2d 599, 610 (S.D.N.Y. 2012) (providing that the denial of training
opportunities can constitute an adverse employment action where the plaintiff can
"demonstrate that the employer offered training to other employees and that the plaintiff
was denied training under circumstances giving rise to an inference of discrimination").
Plaintiff provides no caselaw which supports her assertion that the alleged failure
to relieve Plaintiff from her station on a single occasion is an adverse employment action
under Title VII. (See Dkt. 55-17 at 17-19). At least for purposes of a discrimination
- 32 -
claim (versus a retaliation claim), an adverse employment action must involve a
materially adverse change in the terms or conditions of employment.
See Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). No change in the
terms of Plaintiffs employment happened when she was temporarily disallowed from
taking a break. This was an isolated incident, which was not connected in any way with a
loss of benefits or material responsibility. A rational fact-finder, viewing the proffered
evidence objectively, could not conclude that the delay in providing Plaintiff relief from
her station effectuated a 1~aterially adverse change in her employment.
incident fails to rise to the level of an adverse employment action. See, e.g., Fox v.
Costco Wholesale Corp.,_ F. Supp. 3d _, 2017 WL 888324, at *12 (E.D.N.Y. Mar. 6,
2017) ( finding that the employer's denial of two requests for breaks were insufficient to
establish an adverse employment action). However, even if the Court assumes arguendo
that this incident did constitute an adverse employment action, Plaintiff has not met her
burden under McDonnell Douglas in showing an inference of discriminatory motivation
sufficient to establish a prima facie case.
Plaintiff Fails to Show an Inference of Gender Discrimination
In contrast to her claims under the FMLA, Plaintiff fails to provide any evidence
beyond her own conclusory allegations that Defendants were motivated by unlawful
gender animus in removing Plaintiffs Sunday shift, refusing her training opportunities
and promotion, refusing to permit her to leave her station on one occasion, or terminating
- 33 -
Plaintiff fails to even describe in her papers the basis for an inference of gender
discrimination with respect to the removal of Plaintiffs Sunday shift or her termination.
(See Dkt. 55-17 at 16-19). Having reviewed the entire record, the Court sees no evidence
from which to make such an inference.
As to her training and promotion claims, Plaintiff alleges that male officers who
started working at the same time that she did were given access to training and promoted
to full-time positions which she and other female officers were not. (Id. at 17). Plaintiff
was provided some training.
(See Dkt. 50-15 at 38-39; Dkt. 55-1 at 52-54, 62-63).
Plaintiff testified that there were other training opportunities that she was refused. (Dkt.
55-1 at 62, 64). For both the training/promotion claims and Plaintiffs claims as to the
refusal to allow her to leave her post after being "thrown on," Plaintiff provides only her
own conclusory testimony. (See Dkt. 55-16). Plaintiff offers no evidence or specifics to
back up her claims, and there is no corroboration of any of these allegations in the record.
At the summary judgment stage, a plaintiff cannot establish a prima facie case on the
basis of conclusory allegations alone.
Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985)
("[C]onclusory allegations of discrimination are insufficient to satisfy the requirements of
Rule 56(e)."); see, e.g., id. ("To allow a party to defeat a motion for summary judgment
by offering purely conclusory allegations of discrimination, absent any concrete
particulars, would necessitate a trial in all Title VII cases."); see also id. at 996 ("[T]he
general principle [derived from the elements of proof in an employment discrimination
case is J that a Title VII plaintiff must carry the initial burden of offering evidence
adequate to 'raise an inference of discrimination."' (citation omitted)). The record lacks
- 34 -
even a shred of evidence from which an inference can be drawn that Plaintiff was denied
training opportunities and/or promotion because she was a woman. The same can be said
of her failure to relieve claim. Therefore, summary judgment on Plaintiff's Title VII
discrimination claim is appropriate.
Plaintiff's Title VII Retaliation Claim
The County argues that it is entitled to summary judgment on Plaintiff's Title VII
retaliation claim as well. (Dkt. 50-19 at 22).
"Title VII's antiretaliation provision prohibits an employer from discriminating
against an employee for opposing any practice made unlawful by Title VII." Rivera v.
Rochester Genesee Reg'! Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012); see, e.g.,
Deravin v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003). Retaliation claims are analyzed
under the McDonnell Douglas burden-shifting framework. Terry v. Ashcroft, 336 F.3d
128, 141 (2d Cir. 2003).
To establish a prima facie case of unlawful retaliation under Title VII, "an
employee must show that (1) [s]he was engaged in protected activity;
(2) the employer was aware of that activity; (3) the employee suffered a
materially adverse action; and (4) there was a causal connection between
the protected activity and the adverse action."
Rivera, 743 F.3d at 24 (citation omitted). There are two types of Title VII retaliation.
Littlejohn v. City ofN. Y, 795 F .3d 297, 316 (2d Cir. 2015).
The opposition clause makes it unlawful for an employer to retaliate against
an individual because she "opposed any practice" made unlawful by Title
VII, while the participation clause makes it unlawful to retaliate against an
individual because she "made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under" Title VII.
Id. (citation omitted).
- 35 -
"Once the employee has established a prima facie case, the employer 'must
proffer a legitimate, non-discriminatory reason for the adverse action. If it does so, then
the burden shifts back to the [employee] to demonstrate pretext."' Verga v. Emergency
Ambulance Serv., No. 12-CV-1199 (DRH)(ARL), 2014 WL 6473515, at *3 (E.D.N.Y.
Nov. 18, 2014) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 94-95 (2d
Here, Plaintiff has failed to establish a prima facie case, as she cannot point to any
Title VII-protected activity for which she was retaliated against.
Plaintiff has not
presented any evidence that she opposed any practice by Defendants which was made
unlawful by Title VII. (See Dkt. 55-17 at 8-11 ). Similarly, there is no evidence that
Plaintiff participated in an EEOC proceeding for which she suffered retaliation. Indeed,
Plaintiffs EEOC charge was not filed until February 29, 2012, more than five months
after her termination. (Dkt. 50-7 at 2). 4 Plaintiff has not established the first prong of a
prima facie retaliation claim, and, therefore, summary judgment is appropriate.
Plaintiff's First Amendment Retaliation Claim Survives Summary Judgment
Defendants next argue that Plaintiffs First Amendment retaliation claim fails as a
matter of law.
(Dkt. 50-19 at 19-21).
On summary judgment, a public employee
asserting a First Amendment retaliation claim:
must initially demonstrate by a preponderance of the evidence that:
(1) [her] speech was constitutionally protected, (2) [s]he suffered an
At oral argument, Plaintiffs counsel mentioned that Plaintiff filed an EEOC
charge "near the end of 2010." (See Dkt. 64). The record does not include any evidence
of such a charge.
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adverse employment decision, and (3) a causal connection exists between
[her] speech and the adverse employment determination against [her], so
that it can be said that [her] speech was a motivating factor in the
Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cty., 252 F.3d 545, 553 (2d
Cir. 2001) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)). "Even if the
plaintiff demonstrates these factors, the defendant can still prevail on a motion for
summary judgment if it can show that it would have taken the same adverse employment
action even in the absence of the protected conduct." Cotarelo v. Vill. of Sleepy Hollow
Police Dep 't, 460 F.3d 247, 251-52 (2d Cir. 2006) (internal quotation marks and citation
omitted); see, e.g., Gorman-Bakos, 252 F.3d at 553 ("If a plaintiff establishes the three
factors, the defendant has the opportunity to show by a preponderance of the evidence
that it would have taken the same adverse employment action even in the absence of the
"Whether speech addresses a matter of public concern is a question of law to be
determined by the content, form, and context of a given statement, as revealed by the
whole record." Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121, 124 (2d Cir.
2005) (internal quotation marks and citation omitted).
"[I]f the basis for a First
Amendment retaliation claim is a lawsuit, the subject of the lawsuit must touch upon a
public concern." Id. "Gender discrimination in employment is without doubt a matter of
public concern." Id. at 125; see, e.g., Cotarelo, 460 F.3d at 252 ("[D]iscrimination in a
government workplace is a matter of public concern.").
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A causal connection can be established by "showing that the protected activity was
closely followed in time by the adverse employment action." Gorman-Bakos, 252 F.3d at
554 (quotingReedv. A.W Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996)).
Plaintiff points to her filing of another discrimination suit as her protected speech.
(Dkt. 55-17 at 22). The other suit was brought against Corning Community College
("CCC"), where Plaintiff had been a student at the Southern Tier Law Enforcement
Academy. (See Dkt. 55-13 (showing U.S. District Judge Michael A. Telesca's Decision
and Order in Jordan v. Corning Cmty. Coll., No. l l-CV-6182, 2011 WL 4402752
(W.D.N.Y. Sept. 22, 2011)); see also Dkt. 55-1 at 21-22). No officer ever made any
comments to Plaintiff about the suit. (Dkt. 55-2 at 43-44). However, Plaintiff believes
that she was treated differently by Moss, Schrom, and Wilson because they knew about
the suit. (Id. at 43-44). Chemung County Sheriff's Department Correctional Officer
Michael Corsi ("Corsi") testified that there was general knowledge of Plaintiff's suit
against CCC, but did not recall any particular person talking about the suit. (Dkt. 55-3 at
Plaintiff's complaint against CCC about gender discrimination in a public setting
was clearly a matter of public concern. See Konits, 394 F.3d at 125. Plaintiff asserts that
she suffered two adverse employment actions which relate to her case against CCC.
First, Plaintiff claims that she was not provided any opportunities to work on a call-in
basis after she filed the suit. (Dkt. 55-17 at 23). This constitutes a materially adverse
change in the terms of Plaintiff's employment, and, therefore, is an adverse employment
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action. Second, Plaintiff was· terminated. (Id.). As described above, termination is an
adverse employment action.
Plaintiff asserts that there is a temporal connection between the adverse
employment actions and developments in her suit against CCC. Plaintiff filed the suit
against CCC on November 22, 2010. (See Dkt. 55-17 at 23); see also Jordan v. Corning
Cmty. Coll. et al., 6:ll-CV-06182-EAW-MWP, Dkt. 1 (W.D.N.Y. Nov. 22, 2010).
Defendants last called Plaintiff for a call-in shift thirty-seven days later, on December 29,
2010. (See Dkt. 55-4 at 3). Plaintiffs filing of the case against CCC and Defendants'
cessation of offering her call-in shifts are sufficiently close in time such that Plaintiff has
established causation through temporarily proximity. See, e.g., Gorman-Bakos, 252 F.3d
at 555 (finding "the passage of time [of two or three months] was brief enough to support
an inference of a causal connection between the free speech and the alleged retaliatory
Additionally, Plaintiff claims that her termination was related to First Amendment
September 22, 2011.
The court denied the CCC defendants' motion to dismiss on
Jordan v. Corning Cmty. Coll., No. l l-CV-6182, 2011 WL
4402752 (W.D.N.Y. Sept. 22, 2011).
Plaintiff was terminated six days later, on
September 28, 2011. (Dkt. 55-12 at 2). However, unlike with Plaintiffs filing of the
complaint, the "speech" Plaintiff claims was the basis for the retaliation was not her
speech-it was the court's Decision and Order. Plaintiff fails to cite to a single case
which suggests that the court's "speech" can be imputed to Plaintiff, and the Court finds
none. Plaintiff does not argue that she was retaliated against because she opposed the
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CCC defendants' motion to dismiss. Nor does she present any evidence that Defendants
were aware of the court's decision or that they were monitoring developments in the case.
She merely argues that her "termination was dated a mere six days following the District
Court's denial of Corning Community College's motion to dismiss Plaintiff's lawsuit."
(Dkt. 55-17 at 23 ). Because Plaintiff fails to assert that any of her own constitutionally
protected speech was related to the termination, she cannot maintain a First Amendment
retaliation claim in reference to her termination.
Defendants fail to make any argument suggesting that they would have stopped
offering Plaintiff call-in shifts even absent her filing of the complaint. (See Dkt. 50-19 at
21; Dkt. 59-1 at 24). The Court finds no basis for such a finding in the record. As such,
Defendants have not satisfied their burden in showing their entitlement to summary
judgment. See Cotarelo, 460 F.3d at 251-52; Gorman-Bakos, 252 F.3d at 553. Thus,
summary judgment is denied as to Plaintiff's First Amendment retaliation claim based on
Defendants' cessation of offering her call-in shifts around the time she filed her
complaint against CCC. However, because Plaintiff has not put forward any evidence of
a causal connection between her own protected speech and her tennination, summary
judgment is granted on her First Amendment retaliation claim in reference to her
Plaintiff's Equal Protection Claim Must Be Dismissed
Defendants argue that Plaintiff has failed to put forward sufficient evidence to
sustain an Equal Protection claim under42 U.S.C. § 1983. (Dkt. 50-19 at 17-19).
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"The substantive standards applicable to claims of employment discrimination
under Title VII,  are also generally applicable to claims of employment discrimination
brought under ... the Equal Protection Clause." Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010).
The Court has dismissed Plaintiffs Title VII discrimination claim because
Plaintiff fails to provide any evidence of unlawful gender animus.
Protection claim is analytically identical.
Thus, summary judgment is equally
appropriate on Plaintiffs Equal Protection claim. See, e.g., Patterson v. Cty. of Oneida,
N. Y, 375 F.3d 206, 225 (2d Cir. 2004) ("Most of the core substantive standards that
apply to claims of discriminatory conduct in violation of Title VII are also applicable to
claims of discrimination in employment in violation ... the Equal Protection Clause, and
the factors justifying summary judgment dismissing [the plaintiffs] Title VII
claim ... equally support the summary dismissal of his claims for termination brought
under 42 U.S.C. § ... 1983.").
Plaintiff's State Law Claims
Lack of Notice under N.Y. Mun. Law§ 50-e
Defendants argue that Plaintiffs NYSHRL and New York constitutional claims
fail because Plaintiff never filed a notice of claim as required under state law. (See Dkt.
50-19). Plaintiff seemingly concedes that no notice of claim was ever filed, (see Dkt. 5517), and the record does not include any notice of claim.
Plaintiff contends that because she alleges NYSHRL violations against only Moss
and Schrom, not Chemung County, no notice was required. (Dkt. 55-17 at 19-21).
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N.Y. County Law requires that:
[a]ny claim or notice of claim against a county for damage, injury or death,
or for invasion of personal or property rights, of every name and nature,
and whether casual or continuing trespass or nuisance and any other claim
for damages arising at law or in equity, alleged to have been caused or
sustained in whole or in part by or because of any misfeasance, omission of
duty, negligence or wrongful act on the part of the county, its officers,
agents, servants or employees, must be made and served in compliance
with section fifty-e of the general municipal law.
N.Y. County Law§ 52(1). N.Y. General Municipal Law§ 50-e, in turn, requires:
[i]n any case founded upon tort where a notice of claim is required by law
as a condition precedent to the commencement of an action or special
proceeding against a public corporation, as defined in the general
construction law, or any officer, appointee or employee thereof, the notice
of claim shall comply with and be served in accordance with the provisions
of this section within ninety days after the claim arises.
N.Y. Gen. Mun. Law§ 50-e(l)(a); see, e.g., Mills v. Cty. of Monroe, 59 N.Y.2d 307, 31112 (1983) (dismissing the plaintiffs NYSHRL claim for failure to file a notice of claim
pursuant to N.Y. County Law § 52), overruled, in part, on other grounds by Felder v.
Casey, 487 U.S. 131, 134 (1988).
A cause of action under the NYSHRL is subject to the notice requirements ofN.Y.
County Law § 52. Picciano v. Nassau Cty. Civil Serv. Comm 'n, 736 N.Y.S.2d 55 (2d
Dep't 2001); see, e.g., Lewis v. Livingston Cty. Ctr. for Nursing & Rehab., 30 F. Supp. 3d
196, 207-08 (W.D.N.Y. 2014); Grasso v. Schenectady Cty. Pub. Library, 817 N.Y.S.2d
186 (3d Dep 't 2006). The same is true for claims under the New York State constitution.
423 S. Salina St., Inc. v. City of Syracuse, 68 N.Y.2d 474, 489 n.5 (1986). "Notice of
claim requirements are construed strictly by New York state courts, and failure to abide
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by their terms mandates dismissal of the action." Lewis, 30 F. Supp. 3d at 208 (internal
citation omitted). 5
Plaintiff argues that the notice requirement is limited to claims against the County
government alone, not employees of the County, like Moss and Schrom. (Dkt. 55-17 at
21 ). Plaintiff was required to serve a notice of claim on Chemung County under § 52.
Her failure to do so is fatal to all of her state law claims, including her state constitutional
claims, against the County. See, e.g., Alexander v. City of NY, No. 02 Civ. 3555(TPG),
2004 WL 1907432, at *22 (S.D.N.Y. Aug. 25, 2004) ("[T]he New York notice of claim
requirement applies both to common law causes of action, and to actions founded upon
violations of state constitutional provisions. Failure to comply with the notice of claim
requirement mandates dismissal of the action with prejudice." (citation omitted)).
Additionally, courts have routinely applied the notice requirement to claims
against county employees. See Bielski v. Green, 674 F. Supp. 2d 414, 428 (W.D.N.Y.
2009) (applying the requirement to a claim brought against a county district attorney);
Keating v. Gaffney, 182 F. Supp. 2d 278, 290 (E.D.N.Y. 2001) (dismissing NYSHRL
claims against a county executive and other county employees because notice was not
served within 90 days); Pustilnik v. Hynes, No. 99-CV-4087, 2000 WL 914629, at *7
(E.D.N.Y. June 27, 2000) (dismissing NYSHRL claims against a district attorney and
Late notice is allowed if a claim is brought "to vindicate the public interest," or
such leave is granted by a court. Mills v. Cty. of Monroe, 59 N.Y.2d 307,311 (1983); see
also N.Y. Gen. Mun. Law 50-e(S) (requiring a court contemplating allowing late notice
to "consider, in particular, whether the public corporation or its attorney or its insurance
carrier acquired actual knowledge of the essential facts constituting the claim within the
time specified in[§ 50-e(l)] or within a reasonable time thereafter," and all other relevant
facts and circumstances).
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another county employee because "[ c]aunty officials [are] subject to the notice of claim
provision under [§ 52]").
However, "service of a notice of claim upon a public
corporation is not a condition precedent to the commencement of an action against 'an
officer, appointee or employee of [the] public corporation' unless 'the corporation has a
statutory obligation to indemnify such person' under the General Municipal Law 'or any
other provision of law."' Villar v. Howard, 28 N.Y.3d 74, 78 (2016) (quoting N.Y. Gen.
Mun. Law§ 50-e(l)(b)). Chemung County is required by law to indemnify Schrom. See
N. Y. Pub. Off. Law § 18 (requiring a county to "provide for the defense of the employee
in any civil action or proceeding, state or federal, arising out of any alleged act or
omission which occurred or allegedly occurred while the employee was acting within the
scope of his public employment or duties," and defining "employee" as "any ... person
holding a position by election, appointment or employment in the service of a public
entity, whether or not compensated, but shall not include the sheriff of any county .... ").
As such, notice was required for the claims against Schrom.
Plaintiff argues that Lee v. City of Syracuse, 603 F. Supp. 2d 417 (N.D.N.Y.
2009), abrogated on other grounds by Widomski v. State Univ. of NY (SUNY) at
Orange, 748 F.3d 471 (2d Cir. 2014), supports her claim that § 50-e "does not permit a
notice of claim requirement for [NYSHRL]." (Dkt. 55-17 at 20). Section 50-e may not
require a notice of claim for NYSHRL claims, but § 52 does. Plaintiff fails to read the
sentence after the one she cites, which states that § 52 "is much broader in scope and it
allows for a notice of claim requirement in more types of claims than[§ 50-e]," including
those under the NYSHRL. See Lee, 603 F. Supp. 2d at 445. Section 52 did not apply in
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Lee because the suit was against a municipality, and not a county. 6 See id. Here, the suit
is against a county. Section 52, and its broader scope, applies.
Plaintiff also cites Lew inter v. N. Y City Dep 't of Educ., No. 09 Civ. 0227(PGG),
2010 WL 2746334, at *7 (S.D.N.Y. July 9, 2010), for the proposition that § 52 does not
apply to claims against county employees. (Dkt. 55-17 at 21). Lewinter says nothing of
In Lewinter, the Southern District refused to require notice under N.Y.
Education Law for a NYSHRL claim against a school principal because the defendant
principal was not an "officer" under the terms of the N.Y. Education Law. Lewinter,
2010 WL 2746334, at *7. Unlike the Education Law provision at issue in Lew inter, § 52
notice is not limited to torts alleged against "officers," but it encompasses employees as
well. See N.Y. County Law § 52(1). Further, as noted above, § 52's notice requirement
applies to claims against county employees if the county is required to indemnify the
Nonetheless, in contrast with the notice requirement for Schrom, no such notice
was required to sue Moss. As the New York Court of Appeals recently held, a county is
not required under the laws of New York state or its constitution to indemnify its sheriff.
See Villar, 28 N.Y.3d at 79. As such, no notice of claim is required. Id. at 80. The
existence of any contractual agreement to indemnify is immaterial to whether notice is
Plaintiff cites another case to support the proposition that § 50-e does not extend to
NYSHRL claims, but it, similarly, did not involve claims against a county. (See Dkt. 5517 at 20 (citing Lane-Weber v. Plainedge Union Free Sch. Dist., 624 N.Y.S.2d 185 (2d
Dep't 1995) (involving a suit against a school district, and applying N.Y. Education Law
and § 50-e, not § 52))).
- 45 -
required. Because no notice was required, Defendants' lack of notice argument fails as to
Plaintiff's NYSHRL Discrimination and Retaliation Claims against
Moss Fail for the Same Reason her Title VII Claim Fails
Defendants argue that even if no notice was required, Plaintiffs discrimination
and retaliation claims under the NYSHRL fail because she cannot establish a prima facie
case. (Dkt. 50-19 at 17, 23). The Court agrees. "[C]laims brought under [the NYSHRL]
are analytically identical to claims brought under Title VII." Torres v. Pisano, 116 F.3d
625,629 n.l (2d Cir. 1997). "[Plaintiffs] inability to establish aprimafacie case under
Title VII is equally fatal to [her] claims under state law." See Seils v. Rochester City Sch.
Dist., 192 F. Supp. 2d 100, 120 (W.D.N.Y. 2002), aff'd99 F. App'x 350 (2d Cir. 2004).
Plaintiff's State Constitutional Claims Against Moss also Fail
Defendants further argue that even if notice was required, Plaintiff has provided
no evidence in support of her claims under the New York Constitution. (Dkt. 50-19 at
NYS Const. Art. I § 11
The New York Constitution, Art. I § 11 provides:
No person shall be denied the equal protection of the laws of this state or
any subdivision thereof. No person shall, because of race, color, creed or
religion, be subjected to any discrimination in his or her civil rights by any
other person or by any firm, corporation, or institution, or by the state or
any agency or subdivision of the state.
N.Y. Const. art. I, § 11. A claim under the state equal protection claim is analyzed under
the same standard as the federal equal protection claim under§ 1983. Hayut, 652 F.3d at
- 46 -
754 (citing Brown v. State, 89 N.Y.2d 172, 190 (1996)). Because summary judgment is
appropriate on Plaintiffs federal equal protection claim, it is similarly appropriate on the
state equal protection claim. See, e.g., id. at 755 ("[B]ecause [the plaintiff] relies on
identical facts to support both claims, the state equal protection action suffers the same
fate as the section 1983 claim against the individual defendants.
Having found that
summary judgment was properly granted on the section 1983 claim against those
defendants, we also conclude that the district court correctly granted summary judgment
in the state constitutional tort action.").
NYS Const. Art. I § 6
The New York Constitution also provides that "[n]o person shall be deprived of
life, liberty or property without due process of law." N.Y. Const. art. I, § 6. "[D]ue
process claims under New York's Constitution, like those raised under the United States
Constitution, require the balancing of factors-' an evaluation of the interests of the
parties to the dispute, the adequacy of the contested procedures to protect those interests
and the government's stake in the outcome."' People v. Scalza, 76 N.Y.2d 604, 610
Plaintiff fails to respond to Defendants' argument that she has not provided any
evidence to support a claim under the state constitution's due process clause. (See Dkt.
55-17 at 25).
Indeed, Plaintiff offers no argument as to her claims under the state
constitution distinct from those under the federal constitution. Plaintiff does not suggest
that her due process rights under the state constitution are any broader than those under
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the federal constitution. 7 (See id.). Because Plaintiffs state constitution procedural due
process claim rests on the same grounds as her federal one, Plaintiffs § 6 claim must be
dismissed, as her federal one has been. See, e.g., Spillman v. City of Yonkers, No. 07 Civ.
2164(DAB), 2010 WL 2034538, at *4 (S.D.N.Y. May 20, 2010) (granting summary
judgment on the plaintiffs§ 6 due process claim because the plaintiff had not established
a federal due process right); Wantanabe Realty Corp. v. City of N. Y, 315 F. Supp. 2d
375, 401 (S.D.N.Y. 2003) ("There is no suggestion that these state constitutional
provisions are any more expansive, at least in any context relevant to this case, than their
federal counterparts. Accordingly, ... [the plaintiffs] procedural due process claims are
dismissed in their entirety .... ").
NYS Const. Art. I § 8
Finally, to the extent that Plaintiff raises a retaliation claim under the New York
Constitution, Article I, § 8, the claim must also be dismissed to the extent that Plaintiffs
First Amendment retaliation claim was dismissed.
"[l]t is a common view among District Courts in this Circuit that there is no right
of action under the New York State Constitution for claims that can be brought under
Dava v. City of N.Y, l:15-cv-08575 (ALC), 2016 WL 4532203, at *10
(S.D.N.Y. Aug. 29, 2016) (quotation marks omitted) (citing Gounden v. City of N.Y, No.
The Court finds no support for such a suggestion beyond that the state constitution
does not require state action, as the federal constitution does. See Sharrock v. Dell BuickCadillac, Inc., 45 N.Y.2d 152, 159 (1978) ("[T]he absence of any express State action
language [in § 6] simply provides a basis to apply a more flexible State involvement
requirement than is currently being imposed by the Supreme Court with respect to the
Federal provision."). However, such a distinction is irrelevant in this case, where
Defendants are state actors.
- 48 -
14 Civ. 7411, 2015 WL 5793625, at *5 n.3 (E.D.N.Y. Oct. 2, 2015); Flores v. City of
Mount Vernon, 41 F. Supp. 2d 439 (S.D.N.Y. 1999)). '"New York courts will only imply
a private right of action under the state constitution where no alternative remedy is
available to the plaintiff."' Davis v. City of NY, 959 F. Supp. 2d 324, 368 (S.D.N.Y.
2013) (quoting Felmine v. City of NY, No. 09-CV-3768 (CBA)(JO), 2012 WL 1999863,
at *6 (E.D.N.Y. June 4, 2012)).
Plaintiff asserts a First Amendment retaliation claim under § 1983. Part of that
claim remains. Thus, because an alternative, non-state-constitution remedy is available to
Plaintiff, and because she has not elucidated any different injuries under the state
constitution, the Court grants summary judgment on Plaintiffs § 8 claim.
Davis, 959 F. Supp. 2d at 368 ("In order to survive summary judgment, [the] plaintiffs
must at least show that they have suffered constitutional injuries under [the state
constitution] that are not recognized under the [federal constitution].").
For the foregoing reasons, Defendants' motion for summary judgment (Dkt. 50) is
granted in part and denied in part. The following claims remain: ( 1) Plaintiffs FMLA
retaliation claim against the County to the extent that it relies on the elimination of
Plaintiffs regularly scheduled Sunday shift, the County's opposition to Plaintiffs
application for unemployment benefits, and the refusal to reinstate Plaintiffs regularly
scheduled hours after her FMLA leave ended; and (2) Plaintiffs First Amendment
retaliation claim against all Defendants based on the cessation of offering her call-in
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Dated: September 5, 2017
Rochester, New York
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