Biondolillo v. Livingston Correctional Facility et al

Filing 62

DECISION AND ORDER: Defendants' 54 Motion for Summary Judgment is GRANTED in part and DENIED in part. Plaintiff's Title VII pregnancy discrimination claim may proceed. Plaintiff's remaining claims are dismissed. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 2/16/2023. (MDS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMY BIONDOLILLO,
Plaintiff,
Case # 17-CV-6576-FPG

v.

DECISION AND ORDER

LIVINGSTON CORRECTIONAL FACILITY, et al.
Defendants.

INTRODUCTION
Plaintiff Amy Biondolillo alleges against Defendants Livingston Correctional Facility
(“LCF”), Tamara Kennedy, and the New York State Department of Corrections and Community
Supervision (“DOCCS”) several violations of federal and state law, including: (1) gender
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e5(f) et seq., as amended, 42 U.S.C. § 1983, and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law §§ 290 et seq.; (2) pregnancy discrimination under Title VII, 42
U.S.C. §§ 2000e(k) et seq., as amended, and the NYSHRL; (3) age discrimination under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, and the NYSHRL; (4) pregnancy
related disability discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12101 et seq., as amended, and the NYSHRL; (5) “other forms of discrimination” under 42
U.S.C. § 1983; (6) wrongful termination under Title VII, the ADA, the ADEA, and the NYSHRL;
(7) common law intentional infliction of emotional distress; and (8) common law negligent hiring,
retention, and supervision. ECF No. 1. Plaintiff seeks declaratory and injunctive relief; front pay;
compensatory, nominal, and punitive damages; and attorneys’ fees and costs. Id.
1

Under Federal Rule of Civil Procedure 56, Defendants filed a Motion for Summary
Judgment on May 6, 2022. ECF No. 54. On June 3, 2022, Plaintiff responded. ECF No. 57. On
July 1, 2022, Defendants replied. For the reasons set forth below, Defendants’ Motion for
Summary Judgment is GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
From June 2016 until December 30, 2016, Plaintiff worked as a registered nurse at
Livingston Correctional Facility (“LCF”), a DOCCS facility, where nursing administrator Tamara
Kennedy was her supervisor. ECF No. 1. Plaintiff was 42 years old when her employment at LCF
ended. Id. Plaintiff was staffed at LCF through a nursing agency, White Glove Placement, Inc.
(“White Glove”). Id. 1 Agency nurses at LCF, like Plaintiff, were supervised and managed by
Kennedy. ECF No. 57-1 at 4. While Plaintiff worked at LCF, the nursing staff was comprised of
13 other women—11 of whom were age 40 or older—and two men. Id. Plaintiff’s contract with
LCF, through White Glove, was set to expire on December 31, 2016. Id. Plaintiff was paid hourly
by White Glove for her shifts at LCF. Id. In the approximately six months Plaintiff spent at LCF,
Plaintiff’s performance appraisals reflected that she demonstrated good clinical skills, but she
recorded seven absences and was counseled by Kennedy for performance issues, which included
reading the palms of incarcerated individuals and staff, discussing personal information with
incarcerated individuals, and, on at least one occasion, providing treatment to a patient without a
doctor’s orders. ECF No. 57-1 at 8. Full-time DOCCS employees, as compared to agency nurses,
are permitted a total of eight absences per year. Id.
At some point during December 2016, Plaintiff learned that she had become pregnant. Id.
Plaintiff claims she informed Kennedy of her pregnancy sometime that month before her
The parties do not dispute that Defendants DOCCS and LCF meet the definition of an “employer” for the purposes
of this action, though Plaintiff was also employed by White Glove.

1

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employment ended on December 30, but Kennedy claims she did not. ECF No. 57-1 at 8. On
December 22, 2016, Plaintiff emailed Kennedy to tender her resignation because she had accepted
another job with a different nursing agency, stating: “I want to thank you for giving me the
opportunity of working here. I have learned a lot of new things from the staff. I will be taking a
new position and a new contract starting 01/02/17. I know this places a huge inconvenience on
you and the staff, I will be able to help out when I can and fill in some of the holes as my new
contract is straight days 6-2. I do apologize that it was short notice however I found out this
morning. When I get my new schedule I will be happy to go over it with you and help out here
when I can.” Id.; see also ECF No. 54-10 at 1.
On December 29, 2016, Plaintiff was scheduled to begin a shift at 2:00 p.m., but had a
doctor’s appointment scheduled at 1:00 p.m. Id. at 5. Because her appointment did not begin on
time, Plaintiff notified Kennedy that she would be late to her shift and Kennedy indicated that her
shift would be considered a “call off,” an absence that required Kennedy to mandate a DOCCS
nurse to work a double shift if coverage for the shift was not volunteered. Id. Plaintiff arrived at
work at 3:30 p.m. Id. Plaintiff was scheduled to work the next day, December 30, 2016, but does
not recall what hours. Id.
On the morning of December 30, 2016, Plaintiff woke with abdominal pain and vaginal
bleeding. Id. Plaintiff called her doctor and was advised to visit the emergency room. Id. Plaintiff
notified the nurses’ station at LCF that she may be unable to report to her shift for that reason. Id.
Plaintiff informed DOCCS nurse Cheryl Burrows that she would be visiting the emergency room
due to problems with her pregnancy. Id. Burrows indicated that she would inform Kennedy. Id.
Shortly thereafter, Kennedy called Plaintiff.

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Plaintiff alleges that when Kennedy called her, she asked, “What is your problem now?”
Id. at 5-6. Plaintiff alleges she informed Kennedy that she was experiencing bleeding as a result
of her pregnancy, that she would need to visit the emergency room, and that she would attempt to
come in late for part of her shift. Id. at 6. Critically, Plaintiff alleges that Kennedy said “I’m sorry
that you’re spotting [bleeding] but if you don’t come to work, you don’t have a job, you know
what, this is ridiculous at your age, forget it, you don’t have a job[,]” then hung up. Id. Kennedy
denies making such statements. ECF No. 53-3 at 4. Plaintiff claims she interpreted Kennedy’s
alleged statements as a termination. ECF No. 57-1 at 6-7. Plaintiff did not report to work for the
shift and her timesheets for that week show she was not paid that day. Id.; see ECF No. 54-13 at
26. In addition, Plaintiff alleges that, in September 2016 of that year, she discussed the possibility
of becoming a per diem nurse with LCF/DOCCS and intended to become one through her new
staffing agency after her departure from White Glove, but allegedly interpreted Kennedy’s above
statements as a denial of the prospect of such a position. ECF No. 57-1 at 6-7. Plaintiff did not
formally apply for such a position after her employment with White Glove ended, nor did Plaintiff
apply at any time during her employment with White Glove. Id.
In addition to the allegations related directly to her own claims, Plaintiff brings general
allegations that LCF treated female employees differently than male employees, held male
employees to less stringent standards, and that Kennedy was “very aggressive toward [Plaintiff]
and numerous other female employees.” Id. at ¶¶ 25, 26.
On August 17, 2017, Plaintiff commenced this action asserting eleven causes of action
against Defendants. 2 ECF No. 1.

Plaintiff commenced this lawsuit as a putative class action, see ECF No. 1, but did not move for class certification
in accordance with the Court’s Letter Order dated February 6, 2020, see ECF No. 23 (extending deadline for Plaintiff
to file a motion for class certification). Because no motion was filed, the Court construes Plaintiff’s claims to be
asserted individually.
2

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LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary judgment” if
the moving party “shows that there is no genuine issue as to any material fact and that [it] is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986) (“[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”). “Where the moving party demonstrates
‘the absence of a genuine issue of material fact,’” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011) (quoting Celotex Corp., 477 U.S. at 323), “the opposing party must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson,
477 U.S. at 247-48 (1986) (emphasis in original). “Only disputes over facts that might affect the
outcome of the suit under the governing law” are “material.” Id. at 248. A dispute about a material
fact is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.
In deciding a motion for summary judgment, the Court “is not to weigh the evidence but is
instead required to view the evidence in the light most favorable to the party opposing summary
judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility
assessments.” Angulo v. Nassau Cnty., 89 F. Supp. 3d 541, 548 (E.D.N.Y. 2015) (quoting another
source). “Only when reasonable minds could not differ as to the import of evidence is summary

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judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Indeed, “[i]f, as to the
issue on which summary judgment is sought, there is any evidence in the record from which a
reasonable inference could be drawn in favor of the opposing party, summary judgment is
improper.” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d
Cir. 2004) (citations omitted).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat summary
judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than cast a “metaphysical
doubt” as to the material facts; it must “offer some hard evidence showing that its version of the
events is not wholly fanciful.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986); Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary
judgment is properly supported by documents or other evidentiary materials, the party opposing
summary judgment may not merely rest on the allegations or denials of his pleading....”).
DISCUSSION
For the reasons set forth below, Defendants’ motion for summary judgment is granted in
part and denied in part. Plaintiff’s Title VII pregnancy discrimination claim may proceed.
Plaintiff’s Title VII gender discrimination claim, ADEA claims, ADA claims, § 1983 claims,
NYSHRL claims, and New York common law claims are dismissed.
I.

Title VII
Defendants argue that Plaintiff’s Title VII pregnancy discrimination and gender

discrimination claims should be dismissed because Plaintiff suffered no “adverse action” and, even
if she did, such action did not take place under circumstances giving rise to an inference of
discrimination. 3 Plaintiff argues that (a) her alleged termination and (b) subsequent denial of a per
Defendants argue that the Title VII claims asserted against Kennedy must be dismissed because Title VII claims
cannot be maintained against individual defendants. See Carmody v. Vill. of Rockville Ctr., 661 F.Supp.2d 299, 326
3

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diem position with LCF each constitute adverse action under Title VII and the circumstances at
the time of such action give rise to an inference of discrimination. For the reasons explained below,
Plaintiff’s Title VII pregnancy discrimination claim may proceed and Plaintiff’s gender
discrimination claim is dismissed.
Title VII prohibits an employer from failing to hire or discharging “any individual, or
otherwise to discriminate against any individual […] because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Under the McDonnell Douglas
framework, a plaintiff establishes a prima facie case of Title VII discrimination by showing that
“(1) [s]he is a member of a protected class; (2) [s]he was qualified for the position [s]he held; (3)
[s]he suffered an adverse employment action; and (4) the adverse action took place under
circumstances giving rise to [an] inference of discrimination.” Ruiz v. Cnty. of Rockland, 609 F.3d
486, 491-92 (2d Cir. 2010). The plaintiff bears the initial burden of establishing a prima facie case
of discrimination. See Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).
Even if a plaintiff succeeds in presenting a prima facie case, a defendant may rebut that
showing by articulating a legitimate, non-discriminatory reason for the employment action. See
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Upon a defendant’s
articulation of a non-discriminatory reason for the employment action, the presumption of
discrimination arising with the establishment of the prima facie case dissipates. See St. Mary’s,
509 U.S. at 510-11; Fisher v. Vassar Coll., 114 F.3d 1332, 1336 (2d Cir. 1997). For a plaintiff’s
claims to progress, the plaintiff must then present evidence that the defendant’s proffered, nondiscriminatory reason is “a mere pretext for actual discrimination.” Weinstock v. Columbia Univ.,
224 F.3d 33, 42 (2d Cir. 2000). The plaintiff must “produce not simply some evidence, but
(E.D.N.Y. 2009). Plaintiff concedes in response “that she cannot maintain her Title VII claims against Kennedy.”
ECF No. 57 at 13. Accordingly, those claims are dismissed.

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sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons
proffered by the [defendant] were false, and that more likely than not [discrimination] was the real
reason for the [employment action].” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714
(2d Cir. 1996) (internal quotation marks omitted). In short, the question becomes whether the
evidence, taken as a whole, supports a sufficient rational inference of discrimination. To reach a
jury, “[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the
plaintiff’s explanation of intentional discrimination.” St. Mary’s, 509 U.S. at 519.
The parties do not dispute that Plaintiff was a member of a protected class as a pregnant
woman, nor that Plaintiff was qualified for the position she held. Defendants primarily maintain
that Plaintiff did not suffer an adverse action and, even if an adverse action occurred, such action
did not take place under circumstances giving rise to an inference of discrimination.
An adverse employment action is an action that gives rise to “a materially adverse change
in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640
(2d Cir. 2000) (internal quotation marks omitted). “To be ‘materially adverse,’ a change in
working conditions must be more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Id. (internal quotation marks omitted). A materially adverse change is “a
termination of employment, a demotion evidenced by a decrease in wage or salary […] a material
loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a
particular situation.” Id. (internal quotation marks omitted). “The key . . . is that the plaintiff must
show that the [employment action] created a materially significant disadvantage.” Id. at 641
(internal quotation marks omitted). A plaintiff’s “subjective feelings” concerning an employment
action cannot establish that the action was materially adverse. Islamic Soc’y of Fire Dep’t Pers.
v. City of New York, 205 F.Supp.2d 75, 87 (E.D.N.Y. 2002).

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Here, it is undisputed that on Thursday, December 22, 2016, Plaintiff emailed Kennedy her
resignation, stating, among other things, “I will be taking a new position and a new contract starting
01/02/17.” ECF No. 57-1 at 4. Plaintiff’s timesheets with her previous agency, White Glove,
show that her last shift and date of pay was Saturday, December 24, 2016. See ECF No. 54-13 at
26. On the morning Friday, December 30, 2016, the last day Plaintiff was scheduled to work,
Plaintiff notified Kennedy that she would be late for her shift, scheduled to begin at an unknown
time, because of complications with her pregnancy, and Kennedy allegedly responded that “I’m
sorry that you’re spotting [bleeding] but if you don’t come to work, you don’t have a job, you
know what, this is ridiculous at your age, forget it, you don’t have a job[.]” Id. at 5. Plaintiff did
not report for her shift on December 30, 2016.
Defendants claim that Kennedy did not make the above statements and, thus, did not
terminate Plaintiff. Defendants claim that after Plaintiff’s last scheduled day of work at LCF, her
contract was allowed to expire the next day, December 31, 2016. In the alternative, Defendants
claim that even if Kennedy terminated Plaintiff, a termination after a resignation has been tendered
does not constitute adverse action.
Because Defendants contest whether Kennedy, Plaintiff’s supervisor, made the above
statements terminating Plaintiff’s employment, there is a genuine dispute of material fact as to
whether an adverse action was taken with respect to Plaintiff’s alleged termination. Contrary to
Defendant’s argument, it is well-settled that a “termination of employment” constitutes an adverse
action for Title VII purposes. Galabya, 202 F.3d at 640. A termination may still constitute an
adverse action even if the employee’s resignation is otherwise imminent. See Rodriguez v. Wet
Ink, LLC, No. 08-CV-857, 2012 WL 1079006, at *8 (D. Colo. Mar. 30, 2012) (immediate
termination of employee who tendered two-week notice constituted adverse action, insofar as it

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“effectively depriv[ed] [the plaintiff] of two weeks’ wages”); Forrest v. Jewish Guild for the Blind,
786 N.Y.2d 382, 392 (N.Y. 2004) (where plaintiff sent letter of resignation to employer, but
employer terminated plaintiff prior to receipt of letter, concluding that question of fact existed as
to whether “the [employer’s] action preempted and rendered ineffective her resignation”).
Therefore, the Court concludes that the alleged termination is sufficiently adverse under Title VII.
While Plaintiff’s damages for such a termination may be minimal, a termination under these
circumstances is sufficiently adverse.
In addition, Plaintiff claims that she suffered an adverse action because she was denied a
per diem position as a result of discrimination. Plaintiff claims she “fully intended to continue
working at [LCF] as a per diem employee nurse” through a different nursing agency. ECF No. 57
at 13. Plaintiff claims she discussed this with Kennedy and received “encouragement” to do so in
September 2016, before her resignation from White Glove and alleged termination.

Id.

Defendants claim that no offer or approval was ever given for Plaintiff to work a per diem position
and observe that Plaintiff did not ever formally apply for such a position, before or after Plaintiff’s
termination. For the reasons below, the Court concludes that Plaintiff presents insufficient
evidence to support her claim that she suffered an adverse action because she was denied a per
diem position as a result of discrimination.
Here, Plaintiff offers evidence that she may have discussed the possibility of per diem
position with Kennedy in September 2016, see ECF No. 57-1 at 2, but no evidence that a position
was ever offered or that Defendants began the process of hiring her as a per diem nurse through
her new nursing agency at any time before Plaintiff’s conversation with Kennedy on December
30, 2016. Even if such a position were discussed, Plaintiff offers no evidence that Defendants ever
intended to hire her in such a capacity, nor does Plaintiff present evidence suggesting she harbored

10

any kind of expectation of such a position, beyond her own apologetic statements in her resignation
email that despite the inconvenience her resignation may cause she would be “able to help out
when I can and fill in some of the holes” and that she would “be happy […] to help out [at LCF].”
ECF No. 54-10 at 1 (emphasis added). Of note, Kennedy did not respond to this email and Plaintiff
provides no evidence that Kennedy or any other individual at LCF/DOCCS intended to rehire her
as a per diem nurse after she left White Glove. See ECF No. 54-3. Because Plaintiff presents no
evidence that she applied for a per diem position, or that such a position was offered, the Court
concludes that Plaintiff cannot establish that she suffered an adverse action with respect to
Defendants’ alleged denial of such a position. See Moran v. Bd. of Educ. of City of Bridgeport,
No. 3:10-CV-00393-WWE, 2013 WL 1294584, at *4 (D. Conn. Mar. 28, 2013) (holding that
plaintiff presented sufficient evidence of adverse action where plaintiff formally requested position
and such employment explicitly denied).
This remains the case despite Plaintiff’s argument that the alleged discrimination she
suffered at the hands of Kennedy dissuaded her from applying to such a position and rendered a
formal application “futile.” Baker v. Nat’l R.R. Passenger Corp., No. 94 Civ. 0856 (JFK), 1997
WL 53237, at *7 (S.D.N.Y. Feb. 7, 1997) (explaining that a nonapplicant can be a victim of Title
VII discrimination when an application would have been a “useless act” serving only to “confirm
a discriminatee’s knowledge that the job [she] wanted was unavailable to [her].”). Plaintiff’s
reliance on this “futility doctrine” is misplaced.
First, in this Circuit, the doctrine’s availability is confined to the “failure to promote”
context under Title VII; that is, in limited circumstances in which an employed plaintiff is denied
or passed over for a promotion because of a “consistently enforced” discriminatory policy. Grant
v. Bethlehem Steel Corp., 635 F.2d 1007, 1017 (2d Cir. 1980) (quoting International Bhd. of

11

Teamsters v. United States, 431 U.S. 324, 367 (1977)), cert. denied, 452 U.S. 940 (1981); accord
Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993). No such circumstances are alleged
here. Second, even if they were, Plaintiff’s alleged discussion regarding the per diem position
took place in September 2016, approximately three months before her conversation with Kennedy
in which she was allegedly terminated. Plaintiff, therefore, had over three months to apply for a
per diem position with LCF, but did not do so. No discriminatory action is alleged to have occurred
during this period, such that Plaintiff may have been deterred from submitting an application.
Plaintiff’s inaction during this period undercuts any claim that a denial of a per diem position was
the result of a “discriminatory policy[,]” the existence of which Plaintiff fails to sufficiently allege.
Bethlehem Steel Corp., 635 F.2d at 1017.
In sum, because Plaintiff offers no evidence that she applied for a per diem position with
LCF/DOCCS or such a position was denied, the Court cannot conclude that plaintiff suffered “a
materially adverse change in the terms and conditions of employment” with respect to this aspect
of her claims. Galabya, 202 F.3d at 640 (internal quotation marks omitted). Plaintiff, at most,
indicates that she may have hoped to obtain a per diem position with LCF/DOCCS, but Plaintiff’s
“subjective feelings” concerning an employment action cannot, alone, establish that the action was
materially adverse. Islamic Soc’y, 205 F.Supp.2d at 87.
To continue with her claims, Plaintiff must next show that the alleged adverse action
suffered—her termination—occurred under circumstances giving rise to an inference of
discrimination. Ruiz, 609 F.3d at 491-92. For the reasons below, the Court concludes that
Plaintiff’s pregnancy discrimination claim may proceed to the next step of the Court’s Title VII
analysis, but Plaintiff’s gender discrimination claim must fail.

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With respect to her pregnancy discrimination claim, while proof of the elements of a prima
facie case may vary according to the facts and context of the individual situation, “[c]ommon
circumstances giving rise to an inference of unlawful discrimination include the hiring of someone
not in the protected class as a replacement or the more favorable treatment of similarly situated
colleagues outside the relevant class.” McCormick v. Allegheny Valley School, No. 06-3332, 2008
WL 355617, at *9 (E.D. Pa. Feb. 6, 2008) (citation omitted). Derogatory or negative remarks can
also satisfy the fourth prong of a prima facie case under the circumstances. See Rossi v. Wyoming
Valley Health Care System, No. 09-0179, 2010 WL 2766343, at *4 (M.D. Pa. July 13, 2010)
(holding that the plaintiff had demonstrated a prima face case of discrimination by pointing to
derogatory remarks).
Plaintiff contends that Kennedy’s alleged comments on December 30, 2016—“I’m sorry
that you’re spotting [bleeding] but if you don’t come to work, you don’t have a job, you know
what, this is ridiculous at your age, forget it, you don’t have a job[.]”—give rise to an inference of
discrimination. ECF No. 54-10 at 6. Due to the facial severity of the alleged comments and their
explicit discussion of Plaintiff’s complications with her pregnancy, the Court agrees that the
alleged comments sufficiently give rise to an inference of pregnancy discrimination for the
purposes of Plaintiff’s prima facie case.
The Court, however, fails to discern how such comments give rise to a separate, discrete
gender discrimination claim. “Courts analyze [pregnancy discrimination claims] as [gender]
discrimination under Title VII.” Brown v. Aria Health, No. 17-1827, 2019 WL 1745653, at *5
(E.D. Pa. Apr. 17, 2019). Plaintiff appears to distinguish her gender discrimination claim from her
pregnancy discrimination claim primarily on the basis of Kennedy’s comments coupled with other
alleged discriminatory conduct at LCF. Plaintiff observes that during her time at LCF, the nursing

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staff was comprised of 13 other women—11 of whom were age 40 or older in 2016—and two
men. Plaintiff alleges, in vague and conclusory fashion, that LCF treated female employees
differently than male employees, held male employees to less stringent standards, and that
Kennedy was “very aggressive toward [Plaintiff] and numerous other female employees.” ECF
No. 1 at ¶¶ 25, 26. Plaintiff offers no specific evidence of such treatment, beyond her bare,
generalized assertions of such conduct. Plaintiff offers no “male comparators” who were treated
more favorably by LCF in general, or by Kennedy, in particular. Lynch v. Nat’l Fuel Gas
Distribution Corp., 25 F. Supp. 3d 358, 366 (W.D.N.Y. 2014). Without more, the Court finds that
a distinct gender discrimination claim cannot be sustained, as presented. Kennedy’s comments,
alone, while suggestive of potential discrimination on the basis of pregnancy, include no remarks
giving rise to an inference that Kennedy was separately motivated by gender. Plaintiff fails to
demonstrate that her gender, apart from her pregnancy, was a motivating or determinative factor
in her alleged termination. For these reasons, Plaintiff’s Title VII gender discrimination claim
must fail.
With Plaintiff’s prima facie pregnancy discrimination claim sufficiently established, the
Court now addresses whether Defendants have proffered, as they must, a “legitimate, nondiscriminatory reason” for the employment action. See Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981). Upon a defendant’s articulation of such a non-discriminatory
reason for the employment action, the presumption of discrimination arising with the establishment
of the prima facie case dissipates. See St. Mary’s, 509 U.S. at 510-11; Fisher, 114 F.3d at 1336.
For a plaintiff’s claims to progress, a plaintiff must then present evidence that the defendant’s
proffered, non-discriminatory reason is “a mere pretext for actual discrimination.” Weinstock v.
Columbia University, 224 F.3d 33, 42 (2d Cir. 2000).

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Defendants claim that, even if Plaintiff was terminated, Plaintiff was terminated because
she was “unreliable.” ECF No. 54-4 at 12. Defendants argue that Kennedy’s alleged comments
were, at most, an expression of frustration and Plaintiff was terminated because she was “absent
from work seven times in the six months she worked at LCF[,]” had been counseled by Kennedy
for performance issues, and, when Plaintiff was absent, Kennedy was “often required to mandate
a DOCCS nurse to work a double shift to cover for Plaintiff.” Id. These circumstances, which are
not contested apart from Defendants’ claimed reliance upon them as a basis for Plaintiff’s
termination, provide Defendants with a legitimate, non-discriminatory justification for terminating
Plaintiff. Because Defendants proffer a non-discriminatory, neutral reason for Plaintiff’s alleged
termination, Plaintiff must now show it is a “pretext for actual discrimination.” Weinstock, 224
F.3d at 42.
Plaintiff must “produce not simply some evidence, but sufficient evidence to support a
rational finding that the legitimate, non-discriminatory reasons proffered by [Defendants] were
false, and that more likely than not [discrimination] was the real reason for the [employment
action].” Van Zant, 80 F.3d at 714 (internal quotation marks omitted). In short, the question
becomes whether the evidence, taken as a whole, supports a sufficient rational inference of
discrimination. “Pretext may be demonstrated either by the presentation of additional evidence
showing that ‘the employer's proffered explanation is unworthy of credence,’ or by reliance on the
evidence comprising the prima facie case, without more.” Chambers v. TRM Copy Centers Corp.,
43 F.3d 29, 38 (2d Cir. 1994) (emphasis added), quoting Burdine, 450 U.S. at 256, 101; see St.
Mary’s Honor Center, 509 U.S. at 510-12; see also Visco v. Cmty. Health Plan, 957 F. Supp. 381,
388 (N.D.N.Y. 1997). The Court concludes, at this juncture, that Plaintiff meets this burden.

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Here, while there is scarce evidence to suggest that Defendants’ proffered justifications
were pretextual, the primary evidence Plaintiff adduces to comprise her prima facie case—
Kennedy’s alleged statements—is sufficient to rebut Defendants’ proffered justifications. While
“[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff,” Burdine, 450 U.S. at 253, Plaintiff has
presented evidence that would permit a rational factfinder to infer that Defendants’ proffered
rationale is pretextual, rendering summary judgment inappropriate. See Smith v. American Express
Co., 853 F.2d 151, 154–55 (2d Cir. 1988).
In this case, Plaintiff presents sufficient evidence to rebut Defendants’ rationale and
suggest that her alleged termination was motivated by discriminatory animus. The demeaning and
specific nature of Kennedy’s alleged remarks with respect to Plaintiff’s claimed complications
with her pregnancy suffice to create a genuine dispute of material fact as to Defendants’ rationale.
Because Plaintiff may rely solely on evidence comprising her prima facie case to rebut such a
rationale, Plaintiff need not show, as Defendants contend, that her position was filled by a nonpregnant female or male, nor that peers with similar attendance or performance records were
retained, nor that others were accommodated under similar circumstances. See Quaratino v.
Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995); see also Visco, 957 F. Supp. at 388.
In short, Plaintiff adequately presents a prima facie case of pregnancy discrimination under
Title VII and meets her burden of rebutting Defendants’ non-discriminatory rationale for her
alleged termination. To be clear, Plaintiff does not need a “smoking gun” to prove invidious intent,
and the Court emphasizes few plaintiffs will have one. Merritt v. Old Dominion Freight Line, Inc.,
601 F.3d 289, 300 (4th Cir. 2010). Because Plaintiff has proffered arguably direct evidence as to

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whether Defendants’ non-discriminatory rationale was pretextual, the Court concludes that
Plaintiff’s Title VII pregnancy discrimination claim may proceed. Quaratino, 71 F.3d at 65.
For the foregoing reasons, this aspect of Defendants’ motion for summary judgment is
granted in part and denied in part. Plaintiff’s Title VII pregnancy discrimination claim may
proceed and her Title VII gender discrimination claim is dismissed.
II.

Age Discrimination in Employment Act
Plaintiff alleges that Defendants unlawfully discriminated against her because of her age.

ECF No. 57 at 17. Defendants again contend that Plaintiff did not suffer an adverse action and,
even if she did, Defendants’ actions were not motivated by discriminatory animus. ECF No. 54-4
at 13. For the reasons below, the Court concludes that Plaintiff’s claims must be dismissed.
The ADEA bars an employer from discharging an employee because of age. 29 U.S.C. §
623(a) (1976); Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 919, 921–22 (2d Cir. 1981).
ADEA claims are, like Title VII discrimination claims, reviewed under the McDonnell Douglas
Corp. v. Green framework. 411 U.S. 792 (1973); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir.
2000). To show discriminatory treatment, a “plaintiff must [first] establish a prima facie case of
discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). In the
ADEA context, a plaintiff must show “(i) membership in the protected group (40 to 70 years of
age); (ii) she was sufficiently qualified to continue holding her position; (iii) that she experienced
adverse employment action, and (iv) that the action occurred under circumstances giving rise to
an inference of discrimination.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119,
129 (2d Cir. 2012).
After a plaintiff establishes a prima facie case and must rebut a defendant’s purportedly
neutral rationale, to prevail on an ADEA age discrimination claim, it is not sufficient for a plaintiff

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to show “that age was simply a motivating factor” in the employer’s adverse action. Gross v. FBL
Fin. Servs., 557 U.S. 167, 174 (2009). Instead, “the ADEA’s requirement that an employer took
adverse action ‘because of’ age [requires] that age was the ‘reason’ that the employer decided to
act.” Id. at 176. Thus, to establish age discrimination under the ADEA, “a plaintiff must prove
that age was the ‘but-for’ cause of the employer’s adverse decision.” Id.; Lively v. WAFRA Inv.
Advisory Grp., Inc., 6 F.4th 293, 302-03 (2d Cir. 2021). If Plaintiff establishes a prima facie case,
the parties must engage with the McDonnell Douglas Corp. v. Green burden-shifting framework,
id., as articulated in Section I, supra.
The parties do not dispute Plaintiff’s membership in the protected group, as a 42-year-old
woman, nor that she was qualified to continue holding her position. The dispute centers on the
remaining two elements. Because a court’s ADEA analysis resembles Title VII analysis with
respect to the “adverse action” element, the Court concludes that Plaintiff may have suffered an
adverse action when she was allegedly terminated by Defendants, but not when she was allegedly
denied a per diem position, for the reasons stated in Section I, supra. The third element is
accordingly satisfied. The Court now addresses the fourth element.
To state a claim that her termination occurred “because of [her] age,” 29 U.S.C. § 623(a)(1),
Plaintiff must allege “that age was the ‘reason’ that [Defendants] decided to act,” Gross, 557 U.S.
at 176. Stray age-related remarks are insufficient to raise an inference of discriminatory motive
unless they “(1) [were] made repeatedly, (2) drew a direct link between [discriminatory]
stereotypes and the adverse employment decision, and (3) were made by supervisors who played
a substantial role in the decision to terminate.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th
293, 306 (2d Cir. 2021) (quoting Naumovski v. Norris, 934 F.3d 200, 216 n.47 (2d Cir. 2019).

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Kennedy’s alleged comments on December 30, 2016—“if you don’t come to work, you
don’t have a job, you know what, this is ridiculous at your age, forget it, you don’t have a job[.]”—
may give rise to an inference of age-related discrimination. ECF No. 54-10 at 6 (emphasis added).
The alleged comments are explicitly-age related, appear to draw a direct link between an agerelated stereotype and the alleged employment decision, and were made by a supervisor, Kennedy,
who, as alleged, possessed termination authority with respect to Plaintiff. See Lively, 6 F.4th at
306. While the comments do not appear to have been “made repeatedly” and the decision to
terminate is contested by Defendants, the Court finds that the alleged comments may give rise to
an inference of age discrimination for the purposes of a prima facie case.
Still, Plaintiff must demonstrate more than that age may have been “simply a motivating
factor” in the employer’s adverse action. Gross v. FBL Fin. Servs., 557 U.S. 167, 174 (2009)
(emphasis added). “[P]laintiff must prove that age was the ‘but-for’ cause of the employer’s
adverse decision.” Lively, 6 F.4th at 302-03. One stray remark “without more” ordinarily does
not constitute “sufficient evidence to make out a case of employment discrimination.” Danzer v.
Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). To establish “but-for” causation, Plaintiff must
allege evidence concerning “other indicia of discrimination” that would make Kennedy’s remarks
“bear a more ominous significance.” Lenzi v. Systemax, Inc., 944 F.3d 97, 112 (2d Cir. 2019)
(internal quotation marks omitted). To that end, courts will consider “when the remark was made
in relation to the employment decision at issue[,]” the “content of the remark[,]” and “the context
in which the remark was made.” Henry v. Wyeth Pharm., Inc. 616 F.3d 134, 149 (2d Cir. 2010).
No single factor is dispositive. Id. at 150.
Plaintiff’s claim appears to hinge entirely upon Kennedy’s alleged remark. While
Kennedy’s remark undoubtedly bore a close proximity to Plaintiff’s alleged termination, the

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remark appears to have been made within the context of Plaintiff informing Kennedy that she
would again not timely arrive to work, one day after she had done the same and arrived late.
Defendants, as before, contend that Kennedy’s remark was an expression of frustration and
Plaintiff’s alleged termination was the result of, not Plaintiff’s age, but Plaintiff’s frequent
absences and the resulting impositions of mandated double shifts upon DOCCS nurses. Guided
by the “content of [Kennedy’s] remark”—i.e. its specific reference to Plaintiff’s age—the Court
finds that Plaintiff has presented adequate evidence that her age may have been a factor in
Defendants’ alleged decision to terminate Plaintiff. Absent other evidence, however, Plaintiff
cannot show that it was the ‘reason’ that [Defendants] decided to act.” Gross, 557 U.S. at 176.
Courts require more for such a finding in the ADEA context. As an example, Plaintiff
offers no evidence suggesting that younger, similarly situated employees that had engaged in
similar behavior were treated more favorably. See Williams v. PMA Companies, Inc., 564 F. Supp.
3d 32, 50 (N.D.N.Y. 2021) (finding ADEA plaintiff may demonstrate inference of age
discrimination where younger, similarly situated employees were treated more favorably); Ehrbar
v. Forest Hills Hosp., 131 F. Supp. 3d 5, 21 (E.D.N.Y. 2015) (same). The required showing is that
the employer treated the plaintiff “less favorably than a similarly situated employee outside of the
protected group.” Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014) (internal quotation marks
omitted). A plaintiff may make that showing “in a variety of ways.” Chertkova v. Connecticut
Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). For example, “[g]enerally, a plaintiff’s
replacement by a significantly younger person is evidence of age discrimination.” Carlton v.
Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000). No such circumstances are alleged here.
In addition, Plaintiff does not offer evidence of any other actions by decisionmakers at LCF
that could be viewed as reflecting discriminatory animus, absent Kennedy’s single remark. See

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Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.1992). Absent other evidence
suggestive of discriminatory conduct, the Court concludes that no reasonable factfinder could find
that age was the “but-for” cause of Plaintiff’s alleged termination on the basis of Kennedy’s
remark, alone. Plaintiff’s claim, therefore, must be dismissed.
For these reasons, this aspect of Defendants’ motion for summary judgment is granted and
Plaintiff’s ADEA claim is dismissed.
III.

Americans with Disabilities Act
Plaintiff argues that Defendants discriminated against her because of her pregnancy-related

complications in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101
et seq. ECF No. 57 at 10. Defendants repeat their contentions that Plaintiff did not suffer an
adverse action and separately assert that pregnancy is not an ADA-protected disability. ECF No.
54-4 at 18. In response, Plaintiff maintains that pregnancy-related complications are protected
under the ADA. For the reasons below, the Court concludes that Plaintiff’s ADA claim must be
dismissed.
To establish a claim under the ADA, a plaintiff must show (1) the employer is subject to
the ADA; (2) the plaintiff is disabled within the meaning of the ADA; (3) the plaintiff could
perform the essential functions of his job with or without reasonable accommodation; and (4) the
plaintiff suffered an adverse employment action because of his disability. Ryan v. Grae & Rybicki,
P.C., 135 F.3d 867, 869-70 (2d Cir. 1998). In the ADA,
(2) Disability. The term “disability” means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

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42 U.S.C. § 12102 (2008), P.L. 110–325, Sec. 4(a) (Sept. 25, 2008); DeMarco v. CooperVision,
Inc., No. 06-CV-6187-CJS, 2009 WL 656337, at *7 (W.D.N.Y. Mar. 11, 2009), aff’d, 369 F.
App’x 254 (2d Cir. 2010).
Pregnancy is typically not a disability within the meaning of the ADA, Johnson v. A.P.
Prods. Ltd., 934 F.Supp. 625, 626 (S.D.N.Y.1996); Lacoparra v. Pregament Home Centers, Inc.,
982 F.Supp. 213, 227 (S.D.N.Y.1997); Cvern v. Ent. Solutions Providers, Inc., No. 00–cv–8704,
2001 WL 533723, * 4 (S.D.N.Y. May 18, 2001), but Plaintiff’s claim centers on severe “medical
complications resulting from that pregnancy [,]” not the pregnancy itself. Bateman v. Project
Hosp., Inc., No. 07-CV-2085 RRM/RML, 2009 WL 3232856, at *10 (E.D.N.Y. Sept. 30, 2009).
Courts have found that pregnancy complications can create physical impairments sufficient to
substantially limit one or more major life activities (in this case, Plaintiff’s ability to engage in her
employment), thus satisfying the ADA’s statutory definition of “disability.” See 42 U.S.C. §
12102(2); Garrett v. Chicago Reform Board of Trustees, No. 95 C 7341, 1996 WL 411319, at *1–
2 (N.D. Ill. July 19, 1996).
The Supreme Court set out a three-step approach for determining whether a plaintiff meets
the definition of a “disability” based on a physical or mental impairment. See Bragdon v. Abbott,
524 U.S. 624, 631 (1998). First, the Court must determine whether a plaintiff suffers from a
qualifying physical or mental impairment. Bragdon, 524 U.S. at 631. Second, the Court must
identify the activity that the plaintiff claims is impaired, and then determine whether that activity
constitutes a “major life activity.” Id. Third, the Court must determine whether the plaintiff’s
impairment “substantially limited” the identified major life activity. Id.
Plaintiff’s ADA claim fails at the first step. Plaintiff must present evidentiary proof to
show she suffers from a “a physical or mental impairment that substantially limits one or more

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major life activities [,]” to proceed with her claim. 42 U.S.C. § 12102(2)(A); see Hernandez v.
City of Hartford, 959 F.Supp. 125 (D. Ct. 1997) (evaluating evidentiary proof from physician to
determine such impairment); see also Gage v. United States, No. 1:05-CV-2902, 2008 WL
974044, *11 (N.D. Ohio Apr. 7, 2008) (“The record is wholly devoid of any medical evidence.
Plaintiff has failed to present an affidavit and fails to cite to relevant deposition testimony that
would satisfy her prima facie requirements. There is no testimony or competent medical evidence
cited by Plaintiff that describes the seriousness of her injuries that would permit this court find her
injuries are substantially limiting a major life activity.”)
While Plaintiff asserts that she suffered “severe pregnancy complications – abdominal
pain, vaginal bleeding, and hospitalization [,]” she provides no evidentiary proof, inadmissible or
admissible, to provide a basis from which the Court may reach the conclusions Plaintiff argues in
her opposition memorandum. ECF No. 57 at 21. No medical records are provided, only Plaintiff’s
assertions. Without further evidentiary support, the Court must find Plaintiff’s ADA claim
insufficient as a matter of law.
For these reasons, this aspect of Defendants’ motion for summary judgment is granted and
Plaintiff’s ADA claim is dismissed.
IV.

42 U.S.C. § 1983 Equal Protection
Defendants argue that Plaintiff’s 42 U.S.C. § 1983 claims must be dismissed because

Plaintiff cannot establish that she was treated differently from similarly situated males. ECF No.
54-4 at 15-17. In response, Plaintiff contests Defendants’ conclusion, but concedes that her § 1983
claims should be dismissed on other grounds. ECF No. 57 at 11. Plaintiff correctly states that
New York State agencies or departments and New York State employees, such as Defendants here,
are immune to suit under § 1983. See, e.g., Cannon v. NYS Comm’r of Soc. Servs., No. 19 Civ.

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6493 (CM), 2019 WL 3743975, at *4 (S.D.N.Y. Aug. 7, 2019) (“Any § 1983 claims Plaintiff seeks
to assert against the State of New York or a particular New York State agency are barred by the
Eleventh Amendment and are dismissed.”).

The Court accordingly grants this aspect of

Defendants’ motion for summary judgment. Plaintiff’s § 1983 claims are dismissed.
V.

NYSHRL
Defendants argue that Plaintiff’s three NYSHRL claims for gender discrimination,

pregnancy and disability discrimination, and age discrimination must be dismissed because
damages actions against a state or state official in federal court are barred by the Eleventh
Amendment absent a waiver of sovereign immunity by the state. ECF No. 54-4 at 9. Plaintiff
maintains that the state has waived sovereign immunity such that her claims should survive
dismissal. ECF No. 57 at 11. For the reasons below, the Court agrees with Defendants and
dismisses Plaintiff’s NYSHRL claims.
The Eleventh Amendment “bars suits that seek either money damages, or injunctive relief”
against state agencies or officers acting on behalf of the state. McGinty v. New York, 251 F.3d 84,
91 (2d Cir. 2001) (internal citations omitted). Here, the parties agree Defendants DOCCS and
LCF are state agencies and that Defendant Kennedy acted on behalf of the state. As a result,
Plaintiff’s claims may proceed only if Plaintiff demonstrates a waiver of sovereign immunity
protection. See Winokur v. Office of Court Admin., 190 F.Supp.2d 444, 448 (E.D.N.Y. 2002).
Contrary to Plaintiff’s argument, “New York has not waived its Eleventh Amendment
immunity for NY[S]HRL suits in federal courts.” Quadir v. New York State Dep’t of Lab., 39 F.
Supp. 3d 528, 537 (S.D.N.Y. 2014), aff’d, 748 F.3d 471 (2d Cir. 2014). “[T]he district courts in
this Circuit have repeatedly held that the New York Human Rights Law does not include a waiver
of the State's sovereign immunity to suit in federal court.” Smith v. State Univ. of New York, No.

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00-CV-1454, 2003 WL 1937208, at *7 (N.D.N.Y. 2003). Indeed, “nothing in the text of the
[NYS]HRL constitutes a waiver of immunity or consent to be sued.” Tuckett v. N.Y. State Dep’t
of Tax. & Fin., No. 99-CV-0679, 2000 WL 1028662, at *2 (S.D.N.Y. 2000). “For this Court to
have the power to adjudicate the [NYSHRL claims] in the complaint, […] an express waiver by
the State […] must exist.” Winokur, 190 F.Supp.2d at 451.
Here, Plaintiff cannot show Defendants waived sovereign immunity. Id. at 450. Plaintiff
merely asserts, without authority, that New York has waived sovereign immunity. Because
Plaintiff fails to show an “express waiver” of such immunity, Plaintiff’s NYSHRL claims are
barred by the Eleventh Amendment and must be dismissed as a matter of law. Winokur, 190
F.Supp.2d at 451. For these reasons, Defendants’ motion for summary judgment is granted with
respect to Plaintiff’s NYSHRL claims.
VI.

Common Law
Plaintiff alleges three New York common law claims against Defendants, including

wrongful termination, intentional infliction of emotional distress, and, with respect to LCF and
DOCCS, negligent hiring, retention, and supervision. See ECF No. 1. Defendants assert that, as
with Plaintiff’s NYSHRL claims, these claims cannot be maintained against a state agency or its
employee and must be dismissed. ECF No. 54-4 at 9. In response, Plaintiff concedes that dismissal
of the claims is appropriate. ECF No. 57 at 11. The Court accordingly grants this aspect of
Defendants’ motion for summary judgment and dismisses Plaintiff’s remaining three common law
claims.

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CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED in
part and DENIED in part. Plaintiff’s Title VII pregnancy discrimination claim may proceed.
Plaintiff’s remaining claims are dismissed.
IT IS SO ORDERED.
Dated: February 16, 2023
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York

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