Diaz v. Weill Medical College of Cornell University

Full title: MIGDALIA DIAZ, Plaintiff, -against- WEILL MEDICAL COLLEGE OF CORNELL…

Court: United States District Court, S.D. New York

Date published: Feb 13, 2004

02 Civ. 7380 (AJP) (S.D.N.Y. Feb. 13, 2004)

Opinion

02 Civ. 7380 (AJP)

February 13, 2004

OPINION AND ORDER

ANDREW PECK, Magistrate Judge

Plaintiff Migdalia Diaz brought this Title YE action against her former employer, Weill Medical College of Cornell University ("Weill"), alleging that she was (1) discriminated against due to her religion (Jehovah's Witness) (Dkt. No. 1: Compl. ¶ 37) and national origin (Puerto Rican) (Compl. ¶ 38), and (2) fired in retaliation for filing a New York State Division of Human Rights complaint (Compl. ¶ 39). Presently before this Court is defendant Weill's summary judgment motion. (Dkt. Nos. 20-24, 32-36.) The parties have consented to disposition of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Dkt. No. 17.)

For the reasons set forth below, Weill's summary judgment motion is GRANTED.

FACTS

Plaintiff Migdalia Diaz is a Jehovah's Witness of Puerto Rican descent. (Dkt. No. 1: Compl. ¶¶ 9, 15-16; Dkt. No. 3: Answer ¶ 5 (admitting allegations of Compl. ¶ 9); Dkt. No. 20: Weill SJ Notice of Motion Ex. V:¹ Diaz Dep. at 25, 28; Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶¶ 6, 23; Dkt. No. 22: Weill 56.1 Stmt. ¶ 2; Dkt. No. 39: Diaz Reply 56.1 Stmt. ¶ 2.) Weill hired Diaz as an administrative secretary in the Public Health Department in 1988 (Compl. ¶ 9, 13; Answer ¶¶ 5, 7; Diaz Dep. at 9-10; Diaz Supp. 56.1 Stmt. ¶ 1; Weill 56.1 Stmt. Diaz Reply 12), where she performed "general secretarial duties such as typing," "opening the mail," and preparing her own time sheets by hand (Diaz Dep. at 11-12). In 1991, Diaz transferred to the Division of Digestive Diseases in the Department of Medicine, where her duties as an administrative secretary included organizing and filing applications for the fellowship program and coordinating fellowship interviews, logging in patient information, answering the phone, typing, and opening mail. (Diaz Dep. at 13-17; Diaz Supp. 56.1 Stmt. ¶ 2.) As a result of a departmental reorganization, Diaz was transferred to a "Digestive Diseases Clinic, where she made appointments, advised patients about procedures, obtained x-rays, answered phones, processed patient payments and transcribed dictation. (Diaz Dep. at 18-20; Diaz Supp. 56.1 Stmt. ¶ 3.) Diaz is Hired as Administrative Secretary in the Department of Physiologyin April 1995

In response to a listing in the Weill Employees Opportunities Bulletin dated February 27, 1995, Diaz applied for an "administrative secretary" position in the Department of Physiology. (Ex. V: Diaz Dep., at 29; Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 4; Weil 56.1 Stmt. Diaz Reply ¶ 8.) The Department Administrator for the Department of Physiology, Theresa Neal-Provenzano, interviewed and hired Diaz for the position. (Diaz Dep. at 31-32; Diaz Supp. 56.1 Stmt. ¶ 5; Weill 56.1 Stmt. Diaz Reply ¶ 7.) Provenzano was Diaz's supervisor. (Diaz Supp. 56.1. Stmt. ¶ 5.) Provenzano reported to the Department Chairman, Dr. Windhager. (Weill 56.1 Stmt. ¶ 7; Dkt. No. 1: Compl. ¶¶ 11-12; Dkt. No. 21: Provenzano Aff. ¶ 2.)

It is undisputed that Diaz was hired as an "Administrative Secretary," with duties "typical of a secretarial and clerical position," and specifically entailing

typing, answering telephones, filing, copying, entering time sheets into [Weill's] payroll system, preparing purchase orders and expense reimbursement requisitions, picking up and delivering paychecks . . . and general assistance in connection with the Department.

(Weill 56.1 Stmt. ¶ 9; accord, Diaz Reply 56.1 Stmt. ¶ 9.) The "C-7 Administrative Secretary, Position Summary" states that the C-7 Administrative Secretary "[u]nder direction, provides secretarial/administrative assistance to the Department of Physiology." (Ex. H: "C-7 Administrative Secretary, Position Summary.") The description includes nine categories of "Position Activities":

[1] Asst. Admin. Mgr. with financial activities including: data entry of grant payroll/supply related expenses on spreadsheet[;] monitor grant accounts by reconciling accounting/payroll statements for accuracy[;] forecasting of new and existing grant fund expenses[;] audit telephone/fax statements, recoup grant related expenses[;] generate reports as requested[.]

[2] Assist with personnel matters for academic staff, e.g. annual academic staff list, immigration, and other information requested for appointment.

[3] Types various documents including grant applications, correspondence, lecture schedules, exams, other student related material, prepares own correspondence on routine matters.

[4] Process applications for the Graduate School of Medical Sciences; mails requests for applications; maintains computer data files; distributes completed applications to faculty for review; schedules interviews; prepares and types acceptance/rejection letters; liaison with Graduate School faculty and students.

[5] Coordinates activities relating to department's teaching activities including arranging 3^rd and 4^th quarter lecture schedules, exams, class, student and laboratory conferences, room assignments; types exams and maintains confidentiality of grades; schedules faculty meetings; orders supplies and animals for student laboratories; ensures transcripts are distributed and returned in a timely manner; maintains computer files.

[6] Performs activities relating to weekly Physiology seminars and lectures: contacts guest speakers for topic information; prepares and types agenda; arranges for room, audiovisual equipment; luncheon.

[7] Prepares department time sheets on computer; maintains vacation/sick time records; picks up and delivers paychecks.

[8] Maintains inventory and orders office supplies; prepares purchase orders via computer, types check requisitions, travel advances/reimbursements; maintains standing orders; contacts vendors, purchasing, accounting to obtain additional information or resolve problems.

[9] Performs general administrative secretarial services including answering phones, filing, Xeroxing, and other job-related duties as required.

(Ex. H.)

While conceding that she was an "administrative secretary," Diaz contradictorily alleges that she applied for a Physiology job posting for a "Staff Secretary," described as a job that:

Provides secretarial and clerical services: answers and screens phone calls; maintains inventory and orders supplies; prepares various documents via word processor; assists with processing applications for the Graduate School of Medical Sciences; coordinates activities related to department teaching activities; types exams; arranges exams, student and laboratory conferences; ensures transcripts are distributed and returned in a timely manner; performs activities related to weekly Physiology seminars and lectures; contacts guest speakers for topic information; prepares agenda; arranges for room; prepares department timesheets.

(Dkt. No. 37: Hatton 10/20/03 Aff. Ex. 1: 2/27/95 Bulletin at 2.) Diaz claims that she "was never advised to different responsibilities [than those in the Staff Secretary posting] nor was she ever given a copy of Plaintiffs Exhibit #2, a document which [Weill] purports represents [Diaz's] job description." (Dkt. No. 40: Diaz Br. at 5; Diaz Dep. at 3; Hatton 10/20/03 Aff. Ex. 2: Administrative Secretary Position Summary Activities, dated Apr. 13, 1995, which is identical to Ex. H, quoted above.)

Nevertheless, Diaz concedes that she was the only C-7 Administrative Secretary in the Department of Physiology in April 1995 and throughout her time there. (Diaz Dep. at 30-31.) Diaz described her actual duties as follows:

I answered the phones. I typed letters [for Dr. Windhager]. I typed memos. I did timesheets [for myself and any other technicians, secretarial, or summer help]. I did purchase orders. I worked with the physiology seminars with the graduate school. I typed exams, transcripts, distribute[d] them, made copies for the students, did data entry on [Provenzano's] desk for [a faculty member's] grant. I picked up the mail. E-mails also. I sent out e-mails. I ordered supplies. I picked up payroll, biweekly payroll I would pickup.

When we had the speakers come, I would do travel arrangements for them, and I would do hotel arrangements . . . Sometimes, when they would send back their expenses, I would calculate it and there would be a check ready for them. And then I would go and pick up their check and have it sent out to them also.

(Diaz Dep. at 34-35; see also Diaz Dep. at 36, 42.)

The Court agrees with Weill that there is no real difference between the job posting duties, the Administrative Secretary position activity listing of duties and the duties actually performed by Diaz, all of which were secretarial/clerical. (See Dkt. No. 36: Kahn Reply Aff. ¶¶ 12-14; see also Weill 56.1 Stmt. Diaz Reply ¶ 9.)

Diaz's Allegations of Discrimination

According to Diaz, her co-workers in the Department of Public Health and the Division of Digestive Diseases knew she was a Jehovah's Witness. (Dkt. No. 20: Ex. V: Diaz Dep. at 25.) Diaz used vacation time to attend Jehovah's Witness's conventions each summer and "sometimes" told her supervisors the reason for her vacation request. (Diaz Dep. at 25-26.) Around the Easter and Passover holidays, she told co-workers she "celebrate[s] the memorial of Jesus Christ . . . because [she is] one of the Jehovah's Witnesses." (Diaz Dep. at 26.) Further, when her co-workers held birthday or Christmas parties, Diaz did not participate and informed her co-workers that she did not because those celebrations are "pagan" and "offensive to Jehovah." (Diaz Dep. at 27, 48-49.) Diaz testified that it was "[absolutely]" "fair to say that by the holiday season in 1995, it was generally known within the Department of Physiology that [Diaz was] a Jehovah's Witness." (Diaz Dep. at 49.)²

2 However, Diaz also testified that she did not recall when she specifically mentioned that she was a Jehovah's Witness to either Provenzano or Windhager and repeatedly testified that she did not know when Provenzano learned of her religion. (Diaz Dep. 51, 54-56.)

When asked at her deposition whether Diaz had "any reason to believe" that Provenzano and Windhager knew she was Puerto Rican, Diaz said "[n]ot that I recall." (Diaz Dep. at 58.) However, Diaz now contends that because she "regularly brought gifts to Dr. Windhager from Puerto Rico, and occasionally spoke Spanish in the office, therefore both Mrs. Provenzano and Dr. Windhager knew or should have known [Diaz] is of Puerto Rican descent." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 24; Dkt. No. 38: Diaz 10/20/03 Aff. ¶ 7.) Diaz also believes that Provenzano knew of her Puerto Rican descent due to Diaz's "name, [her] noticeable accent (and inflection), [her] complexion, and ability to speak fluent Spanish." (Diaz 10/20/03 Aff. ¶ 7.)³Alleged Discriminatory Comments To or About Diaz

3 Provenzano states that she "did not know [Diaz's] national origin and certainly did not discriminate against her on that or any other basis." (Dkt. No. 21: Provenzano Aff. ¶ 16.) For the reasons discussed below, this fact dispute is not material.

According to Diaz, the first discriminatory incident occurred when Diaz was examined in preparation for surgery in November 1998 and Provenzano allegedly "mocked" her for refusing to accept a blood transfusion. (Dkt. No. 20: Ex. V: Diaz Dep. at 109-14; see also Dkt. No. 40: Diaz Br. at 8.) When Diaz returned from the presurgical exam, Provenzano said "`so fast?'" (Diaz Dep. at 111.) Diaz explained that she refused to sign an authorization for a certain surgical procedure, to which Diaz alleges that Provenzano responded "`you people rather die than take "blood."' (Diaz Dep. at 111-12.)⁴ Diaz responded that "Fm going for surgery and I don't welcome . . . comments to that effect." (Diaz Dep. at 114-15.) Diaz did not think Provenzano's comment "was a joke because around that time [Diaz] was trying very hard to get out of that department, and then the surgery issue came up . . ." (Diaz Dep. at 115.) Diaz testified that after the surgery "I remained there until I was better, and then I stepped up on the job search again." (Diaz Dep. at 115.)

4 Provenzano denies making the comment. (Dkt. No. 21: Provenzano Aff. ¶ 14.) Because as discussed below the alleged comment was made long before the EEO look back period and thus is time barred (See pages 35-39 below), the Court need not resolve the factual dispute as to whether the comment was made.

Diaz alleges that on the same day as Provenzano's alleged comment, after a custodian named "Sally" spoke with Provenzano and Windhager, Sally came to Diaz's office and said "`ha, ha . . . you're going to have surgery and you're not going to take blood.'" (Diaz. Dep. at 112.) After Diaz told Sally about "bloodless surgery" and how that benefits everyone, Sally again spoke with Provenzano and Windhager, then returned to Diaz and said "well, Migdalia, that was at one time when there was tainted blood. There was a problem with tainted blood, you know. But there's not that problem anymore." (Diaz Dep. at. 113.)

Diaz was on medical leave from November 19, 1998 to January 4, 1999. (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 12.) Diaz alleges that after she returned, Provenzano told Diaz that she "should question Dr. Windhager about the history of Jehovah's Witnesses" — a comment that Diaz interpreted as derogatory. (Diaz Dep. at 52-53, 125, 128.) Diaz's Reply 56.1 Statement gives the "date of this comment as January 4, 1999. (Dkt. No. 39: Diaz Reply 56.1 Stmt. ¶ 30; see also Dkt. No. 22: Weill 56.1 Stmt. ¶ 30.)

Diaz alleges that faculty member Dr. Alan Weinstein made disparaging comments to Diaz about her religion, including saying "`to hell with you and your God"' on two occasions. (Diaz Dep. at 133-39; Diaz Supp. 56.1 Stmt. ¶ 21; see Weill 56.1 Stmt. ¶ 31.) One time, when Weinstein gave Diaz an assignment to stuff envelopes with mailings, he told Diaz she should marry a rich man to support her ministry work. (Diaz Dep. at 134-35, 137-40.) When Diaz responded that "my master is my God, " Weinstein allegedly said "that's why you're sitting here stuffing envelopes" and "to hell to you and your God."⁵ (Diaz Dep. at 137-39.) Although Diaz testified at her deposition that she did know when Weinstein made the comments ⁶ (Diaz Dep. at 133-34, 137-39, 141), according to her Rule 56.1 Statements, she now "recalls Alan Weinstein made the first statement October 29, 1999 and the second January 11, 2000" (Diaz 56.1 ¶ 31; Diaz Supp. 56.1 Stmt. ¶ 21). Diaz admitted that Weinstein was "absolutely not" her supervisor and did not do her performance reviews. (Diaz Dep. at 139.)

5 According to Diaz's Supplemental Rule 56.1 Statement, on the first occasion, on October 29, 1999, Weinstein came into Diaz's office, "remarked that the following week she would be busy with ASEB applications," and "sarcastically" stated that Diaz "should marry a rich man so that she can go out and do her door to door ministry, and volunteer work." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 21.) On the second occasion, on January 11, 2000, Weinstein came into Diaz's office and said "To hell with your God' as he gave [Diaz] mailing[s] to duplicate and mail" and again said that Diaz "should marry a millionaire so that she could do her volunteer ministry work, referring to her religious activities and door to door ministry." (Diaz Supp. 56.1 Stmt. ¶ 21.) When Diaz responded, "`My master is Jehovah,' . . . Dr. Weinstein retorted, `"Yeah, that's why you're doing that mailing list for someone.'" (Diaz Supp. 56.1 Stmt. ¶ 21.)

6 When first asked at her deposition when Weinstein made the comments, Diaz answered `"2000" and said that "[a]ll of these comments were made at around the same time." (Diaz Dep. at 137-38.) However, Diaz then said "[t]hese comments were made at various times" and had "no recollection about what time period." (Diaz Dep. at 137-38.)

When Provenzano took disability leave for surgery from August 23, 1999 to November 1, 1999, Dr. Doris Herzlinger ran the department. (Diaz Supp. 56.1 Stmt. ¶ 18-19.) Diaz alleges that on "[t]he morning of October 7, 1999, hours prior to a farewell party for one of the research assistants, Dr. Herzlinger accosted Ms. Diaz claiming that her job description mandated that she clean" and "repeated over, and again, `you're here to clean' advising Ms. Diaz to refer to her job description." (Diaz Supp. 56.1 Stmt. ¶ 19; Diaz Dep. at 146-50.) Diaz believed the comment was derogatory because a few months earlier Herzlinger's research associate had told Diaz that "Doris [Herzlinger] said [Diaz] was stupid because [Diaz] did not celebrate Windhager's birthday." (Diaz Dep. at 150-51.) Diaz interpreted the comment as "Im stupid because I'm a Jehovah's Witness and did not celebrate Dr. Windhager's birthday." (Diaz Dep. at 151.)

Diaz also alleges that "[s]ometime in 1999, in the hallway directly in front of Diaz's office, Olaf Anderson [speaking with Weinstein] remarked see what happens when they . . . move in the community, it changes."' (Diaz Supp. 56.1 Stmt. ¶ 25; Diaz Dep. at 157-58.) At her deposition, Diaz could not recollect whether the comment was made in 1999 or 2000. (Diaz Dep. at 157.) Diaz "never told" Anderson that she was of Puerto Rican descent and did not know whether Anderson knew. (Diaz Dep. at 159.) When asked whether, aside from Anderson's alleged remark, she was aware of any other derogatory remarks about Puerto Ricans or about Diaz being Puerto Rican, Diaz responded "Not that I recollect anything now." (Diaz Dep. at 159.)

Alleged Discrimination Relating to Diaz's Responsibilities

Diaz complains that she "was routinely required to set up before and clean up after birthday parties and the Christmas event, despite her religious beliefs denouncing these occasions." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 38; see Dkt. No. 20: Ex. V: Diaz Dep. at 26, 48-50, 144, 148-49.) Diaz also alleges that Provenzano assigned her tasks that discriminated against her national origin as a Puerto Rican. Specifically, Provenzano "frequently had me prepare coffee, set up and clean up the conference room, [Diaz] contend[s] based upon [her] national origin, thereby treating [her] like an immigrant house servant. In addition, the representations that [Diaz] makes good coffee, are stereotypic assumptions directly linked to [her] national origin." (Dkt. No. 38: Diaz ¶ 7.)

Diaz began her efforts to transfer out of the Department of Physiology as early as August 1998, before any of the purported comments relating to blood transfusions and Jehovah's Witnesses. (Weill 56.1 Stmt. Diaz Reply ¶ 11; Diaz Dep. at 143-46, 176-77, 241-44.) Diaz wanted to transfer because "the department at that time was changing. There was less and less work to do. At that time she was just have me just make coffee." (Diaz Dep. at 143-44.) According to Diaz, when she asked Provenzano about the fact that there was less work in the department, Provenzano told her that there was nothing to do. (Diaz Dep. at 145-46.)

Diaz now alleges that Provenzano altered her responsibilities for discriminatory reasons. Specifically, Diaz states that "[p]rior to Diaz's surgery, each of the professor's assistants would retrieve their own petty cash disbursements" (Diaz Supp. 56.1 Stmt. ¶ 14) and "prior to the discriminatory statements regarding plaintiffs surgery, Ms. Diaz only retrieved petty cash for seminar speakers, her immediate supervisor, and Dr. Windhager" (Diaz Supp. 56.1 Stmt. ¶ 15). However, after Diaz's return from medical leave, "Provenzano dispatched [Diaz] back and forth picking up petty cash for various individuals in the department despite her post-operative condition." (Diaz Supp. 56.1 Stmt. ¶ 14; Diaz Dep. at 174, 208-10.) More generally, Diaz alleges that in "January 1999, upon [Diaz's] return from surgery, her job functions were downgraded to cleaning responsibilities, making coffee, and running errands, after eleven years of intensive data entry, and medically related administrative support, involving patient chart management, receipt of payment, grant date inputting, securing travel arrangements for guest lecturers, etc." (Diaz Supp. 56.1 Stmt. ¶ 39; Diaz Dep. at 164.) Diaz argues that the reduction in her job duties must have been motivated by discrimination because "at the time [Diaz's] substantive job functions were taken away, there was no reference to her job performance deteriorating. In fact, [Diaz] received the highest rating, `commendable' in the year ending June 1999, the first year that her duties were usurped." (Diaz Supp. 56.1Stmt. ¶ 40.)

Diaz alleges that Provenzano "blocked [her] with human resources" to prevent her from transferring to another department because Provenzano "wanted [her] out of Cornell." (Diaz Dep. at 176-77.) Diaz's July 17, 2001 memorandum to Human Resources included a complaint that "[f]or the past three years my work has consisted of making coffee, picking up the mail twice a day, enter[ing] time sheets every other week, and [c]heck requisitions for Fed Ex. [a]nd other bills." (Dkt. No. 36: Kahn Reply Aff. Ex. A: Diaz 7/17/01 Memo.) Diaz also testified at her deposition that she had tried to transfer out of the department before her surgery and went on a "few" transfer interviews, but was not certain whether they were before or after her surgery. (Diaz Dep. at 143, 177.)

Diaz testified in her deposition that Provenzano's course of conduct of harassment and intimidation included: "somewhere around" late 2001 saying Diaz "was disgusting in the presence of Tom Maack" (Diaz Dep. at 162, 169-70); sometime between November 1998 and July 2001 telling Diaz to send a seminar posting with the wrong date, which resulted in "people were standing around laughing and looking" at the incorrect flyer (Diaz Dep. at 162-63, 170-71); starting a weekly department social hour after Diaz returned from medical leave in 1999 and telling Diaz that she "had to make coffee for the social hour"⁷ (Diaz Dep. at 164, 172); after Diaz's surgery, using her as an "errand boy" to pick up petty cash, having Diaz "sit there for days and days without giving [her] any work to do, just pick up the mail and make coffee and would not let [her] transfer out of the department, as much as [Diaz] wanted to" (Diaz Dep. at 164); claiming Diaz lost forms while making photocopies and was not able to make copies correctly (Diaz Dep. at 164-65); changing Diaz's payroll status during her medical leave from disability to vacation (although Diaz got it corrected) (Diaz Dep. at 165-66); getting Diaz "involved in gossip" by making disparaging comments about a woman in another department (Diaz Dep. at 166); and giving Diaz incorrect grant application forms to fill out (Diaz Dep. at 166-67). In sum, according to Diaz, "[f]aculty members, Dr. Windhager, Terry Provenzano, Olaf Anderson, Tom Maack, Randy Silver, Dan Gardner, Grafstein and Alan Weinstein routinely mocked and taunted [Diaz] until she felt she was `under trial.'" (Diaz Br. at 13; Diaz Dep. at 194-98.)

7 Diaz explained that Provenzano's hosting a social hour and asking Diaz to make coffee was harassment and intimidation because Provenzano "would make me feel like that the only thing that I knew how to do was coffee." (Diaz Dep. at 173.)

Diaz's Declining Performance Reviews and Eventual Termination

All of Diaz's performance reviews were prepared by Provenzano and approved by Windhager. (Dkt. No. 20: Exs. I-L; Weill 56.1 Stmt Diaz Reply ¶ 10; Ex. V: Diaz Dep. at 58-62, 65, 73-74.) Diaz's June 1998 and July 1999 performance reviews resulted in an overall rating of "commendable." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 16; Weill 56.1 Stmt. Diaz Reply ¶ 10; Dkt. No. 20: Ex I: Diaz 1998 Performance Appraisal; Ex. J: Diaz 1999 Performance Appraisal.)⁸ Diaz's June 2000 performance review resulted in a rating of "successfully meets expectations."⁹ (Weill 56.1 Stmt. ¶ 10; Ex. K.: Diaz 2000 Performance Appraisal.) Diaz viewed the "successfully meets expectations" rating as a "positive" review. (Diaz Dep. at 65.) The Court notes that the positive 1999 and 2000 performance reviews of Diaz occurred after the alleged comments by Provenzano (and "Sally") about Jehovah's Witnesses and blood transfusions in November 1998 (See pages 7-8 above). The 1999 and 2000 positive reviews also came after the January 4, 1999 comment allegedly made by Provenzano to Diaz that she should question Windhager about the history of Jehovah's Witnesses (See page 8 above). The 2000 positive performance review also occured after the two alleged comments by Dr. Weinstein in October 1999 and January 2000 (See page 9 fn.5 above). Finally, the positive 2000 performance review was given to Diaz after the allegedly discriminatory comments by Dr. Herzlinger in October 1999 and Anderson's 1999 comment about "the community" (See pages 9-10 above).

8 Diaz's reviews from 1995 through 1998 include comments that "Migdalia is reliable, shows initiative, is flexible, hardworking and is a pleasure to work with." (Ex I: Diaz 1995-98 Performance Appraisals.) Diaz's 1999 appraisal did not include any comments. (Ex. J.)

9 From 1995 through 1999, Diaz's appraisal was based oh the "Weill Medical College Non-Exempt Performance Appraisal Form," which had possible ratings of "Marginal," "Satisfactory." Above Average," and "Commendable." (Exs-I J.) In 2000 and 2001, the form was changed to include ratings of "Unsatisfactory," "Below Expectations, " "Successfully Meets Expectations," and "Exceeds Expectations." (Exs. ¶ L.)

According to Weill, Diaz's "work deteriorated in 2000 and 2001." (Weill 56.1 Stmt. ¶ 12; Dkt. No. 21: Provenzano Aff. ¶ 5.) "Provenzano and other members of the Department of Physiology found that [Diaz's] typing contained multiple errors that were not corrected in subsequent drafts." (Weill 56.1 Stmt. ¶ 12; Provenzano Aff. ¶ 5.) In addition, "Provenzano received complaints about mail not delivered by [Diaz] and delays in processing travel reimbursements, " as well as reports from faculty that "routine copying of articles and data contained multiple (and inconsistent) mistakes." (Weill 56.1 Stmt. ¶ 12; Provenzano Aff. ¶ 5.) Provenzano and other faculty came to view Diaz as "unresponsive and argumentative" and hesitated to give Diaz work as a result. (Weill 56.1 Stmt ¶ ¶ 2; Provenzano Aff. ¶ 5.) "There was at least one reported incident of [Diaz] screaming at a member of the faculty." (Weill 56.1 Stmt. ¶ 12; Provenzano Aff. ¶ 5.) Diaz denies each of these allegations. (Dkt. No. 39: Diaz Reply 56.1 Stmt. ¶ 12.)

Diaz asserts that Provenzano's representations that other members of the Physiology Department commented about Diaz's poor typing are "simply untrue" because "[a]ll of [Diaz's] work assignments came directly from Mrs. Provenzano" and the professors had their own staff to perform administrative functions. (Dkt. No. 38: Diaz 10/20/03 Aff. ¶ 9.) Diaz characterizes Provenzano's statement that she received complaints about Diaz's ability to perform routine photocopying functions as "simply untrue, " "beyond pretextual, and simply ridiculous." (Diaz 10/20/03 Aff. ¶ 10.)

Diaz contends that Provenzano gave her a negative evaluation after Diaz complained to Provenzano's direct supervisor in July 2001 about Provenzano's discriminatory treatment. (Diaz 10/20/03 Aff. ¶ 11.) Diaz stated that while her "prior complaints of discrimination to the human resources department were ineffectual and disregarded, . . . once [Diaz] advised Dr. Windhager of the discriminatory treatment, [Diaz] was micromanaged, poorly evaluated and written up several times within the course of three months, after thirteen years of employment." (Diaz 10/20/03 Aff. ¶ 11.)

Diaz states that on July 16, 2001, she complained "to Dr. Windhager about the discriminatory remarks, unfair treatment, Mrs. Provenzano's failure to assign her work, and [Provenzano's] failure to have evaluated [Diaz] along with the other departmental employees one month prior." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 26.)

In July 2001, Diaz's performance review was "below expectations." (Weill 56.1 Stmt. ¶ 13; Dkt. No. 20: Ex. L.) Below the question "What developmental goals and improvements for the next review period are most needed?, " Provenzano wrote: "Adherence to all policy and procedures of the department and college. Improvement in many areas needed — timesheet input, follow up and thru on assignments, comply with requests made as described in job description." (Ex. L.) On July 16, 2001, the same day Diaz allegedly voiced her complaints to Windhager (Diaz Supp. 56.1 Stmt. ¶ 26), Provenzano met with Diaz to discuss her performance evaluation and give her a "verbal warning concerning errors in time sheets [Diaz] had entered into [Weill's] payroll system, refusals to pick up petty cash (or arguing and objecting when asked to do so), incorrect preparation of check requisitions, rudeness (including yelling at Ms. Provenzano in the offices), and failure to follow instructions to provide information to another administrative unit." (Weill 56.1 Stmt. ¶ 14; Provenzano Aff. ¶ 7.) Diaz refused to sign the evaluation and wrote a memorandum to Human Resources on July 17, 2001. (Weill 56.1 Stmt ¶ 14; Provenzano Aff. ¶ 7; Dkt. No. 36: Kahn Reply Aff. ¶ 15 Ex. A: Diaz 7/17/01 Memo.) Diaz's memorandum complained that "for the past three years my work has consisted of making coffee, picking up the mail twice a day, enter time sheets every other week, and check requisitions for Fed Ex. And other bills." (Kahn Reply Aff. Ex. A.) Diaz further complained that Provenzano

discriminated against me saying Tm having hotflashes, and when she walks into my office complains that it[']s cold. She makes comments to others IT[']S COLD IN THERE and laughs making jokes. That I' m useless, and that I'm here for cleaning. This evaluation will never be signed by me[.] I will not incriminate my name in such an undignified way. Her fabrication of stories and incriminating me before other[s] in the college will have to stop.

(Id.) According to Diaz, the 2001 evaluation was her first "below expectations" performance rating in her twelve years at Weill (Diaz Supp. 56.1 Stmt. ¶ 27) and the first time Provenzano "wrote up" Diaz in Diaz's six years in the department (Diaz Supp. 56.1 Stmt. ¶ 26, 28).

Diaz agreed that she "had inputted and audited her time incorrectly, and told Ms. Provenzano that she would correct the errors." (Weill 56.1 Stmt. ¶ 15; Diaz Reply 56.1 Stmt. ¶ 15; Provenzano Aff. ¶ 8; Ex. M: July 2-15, 2001 Timesheets; Ex. N: Provenzano 7/29/01 Memo to Diaz.) Provenzano noted later that day that Diaz changed the time entries, but had made additional mistakes. (Weill 56.1 Stmt. ¶ 15; Provenzano Aff. ¶ 8.) The particular "errors included listing vacation days as time worked (and vice-versa)" by typing the wrong letter ("R" or "V") next to the day. (Weill 56.1 Stmt. ¶ 15; Provenzano Aff. ¶ 8.) Although in her initial Rule 56.1 Reply Statement, Diaz asserted that "Provenzano never met with [her] to discuss the items represented" (Diaz Reply 56.1 Stmt. ¶ 14), in her July 17, 2001 memorandum Diaz "explicitly describes her meeting on July 16, 2001 with Ms. Provenzano" in connection with the negative evaluation and a written warning about timesheets. (Kahn Reply Aff. ¶ 30 Ex. A: Diaz 7/17/01 Memo.) Although it is unclear whether Diaz denies the meeting or the substance of what was discussed during the meeting, Diaz's initial 56.1 statement goes on to state in the next paragraph that Diaz "agreed to correct the errors" and "believed her computer was being tampered with, or was experiencing some level of dysfunction, a circumstance [Diaz] related to Mrs. Provenzano." (Diaz Reply 56.1 Stmt. ¶ 15; see also Diaz Supp. 56.1 Stmt ¶ 35.)

Shortly after she received the negative July 2001 performance review, Diaz hired counsel. (Weill 56.1 Stmt. Diaz Reply ¶ 20.)

Provenzano asked Diaz to prepare and enter purchase orders on July 24, 2001, and discovered the following day that Diaz had entered them incorrectly. (Weill 56.1 Stmt. ¶ 16; Provenzano Aff. ¶ 8; Ex. N: Provenzano Memo to Diaz.) After Provenzano asked the Purchasing Department to help correct the errors, members of that department reported that "they had worked with [Diaz] to correct her errors on July 25, and [the errors] were corrected as of July 26, " and Diaz was on vacation July 26 through July 30. (Weill 56.1 Stmt. ¶ 16; Provenzano Aff. ¶ 8; Diaz Dep. at 65-72; Ex. N: Provenzano Memo to Diaz.)

Due to Diaz's errors related to the purchase orders and timesheets, Provenzano gave Diaz "a written warning of unsatisfactory job performance and [Diaz's] generally uncooperative attitude" on July 31, 2001 when Diaz returned from vacation. (Weill 56.1 Stmt. ¶ 17; Provenzano Aff. ¶ 10.) Provenzano's memorandum stated that it "will serve as a written warning of poor and suspect job performance concerning [Diaz's] inputting of time sheets and the processing of purchase orders on the FRS online system." (Ex. N: Provenzano Memo to Diaz; Diaz Dep. at 220-25, 248-53.) According to Provenzano, Diaz "admitted that she had inputted that time sheet data and that the time sheets were incorrect" and "also conceded that there were mistakes [in the purchase orders] and had to make changes in the purchase orders after the errors were brought to her attention." (Weill 56.1 Stmt. ¶ 18.) Diaz denies these facts, but concedes that she agreed to correct the errors. (Diaz Reply 56.1 Stmt. ¶ 18; Diaz Dep. at 220-25, 248-53.)

According to Weill, on the morning of July 31, 2001, when Diaz was scheduled to return from vacation, Diaz called Provenzano and "refused to tell her when she would arrive at the office." (Weill 56.1 Stmt. ¶ 19.) According to Diaz, she "did not refuse to tell Mrs. Provenzano what time she planned to arrive," but rather, "[u]nsure of the length of her appointment, and transportation schedules, [Diaz] was unable to provide Mrs. Provenzano with an exact arrival time." (Diaz Reply 56.1 Stmt. ¶ 19; Diaz Supp. 56.1 Stmt. ¶ 33.) When Diaz arrived, Provenzano gave Diaz "a written warning for the unexcused absence." (Weill 56.1 Stmt. ¶ 19; Provenzano Aff. ¶ 10; Diaz Supp. 56.1 Stmt. ¶ 33; Ex. O: 7/31/01 Provenzano Memo to Diaz.)

Weill felt that Diaz's work showed no improvement after the negative July 2001 performance review and warnings. (Weill 56.1 Stmt. ¶ 21; Provenzano Aff. ¶ 11.) According to Provenzano, Diaz was "sullen and argumentative," and "[s]imple job assignments were met with emotional objections or passive non-performance." (Weill 56.1 Stmt. ¶ 21; Provenzano Aff. ¶ 11.) When Department chairman Windhager asked Diaz "to pick up expense reimbursements" and Diaz "explicitly refused, " Windhager gave Diaz "a `final' written warning" of unsatisfactory job performance on October 25, 2001. (Weill 56.1 Stmt. Diaz Reply ¶ 22; Provenzano Aff. ¶ 12; Ex. P: Windhager 10/25/01 Memo to. Diaz; Ex. Q: Windhager Aff. ¶ 3.) In the written warning, Windhager included a list of five occasions in September and October 2001 on which Diaz refused to pick up reimbursements, and stated that:

In May 2001, you were told that one of your job responsibilities is to pick up cash at the Cashier's office for departmental personnel. On July 16, 2001 you were informed again that this was part of your duties and you acknowledged that you understood this responsibility.

However, since that time, you have consistently and willfully failed to carry out this job function.

. . . .

This action constitutes insubordination. Unless your performance improves in this regard, you will Be subject to further corrective action, up to and including termination of employment.

(Ex. P: Windhager 10/25/01 Memo to Diaz.)

In a letter dated December 17, 2001, Diaz responded to Windhager's warning:

On October 25, 2001, I received a final written warning of unsatisfactory job performance from you. This warning highlights my refusal to act as an "errand boy" for Terry Neal Provenzano. After careful reflection, I have decided that it is in my best interest to respond to this letter.

Prior to Terry Neal Provenzano's discussion with me about my religious beliefs regarding blood and surgery in November 1998, the duties listed in this letter were not part of my responsibilities. Therefore, I do not consider my refusal to perform this work as insubordination but, rather, an attempt to oppose what I sincerely believe to be discriminatory treatment because of my religious beliefs. The assigned tasks are humiliating and embarrassing.

I have been a commendable employee for a long time. As Terry Neal Provenzano has commented about me. I am flexible, hardworking, and a pleasure to work with. I would never intentionally act in a subordinate [sic] matter [sic] with Terry Neal Provenzano.

(Ex.S: 12/17/01 Diaz Letter to Windhager; see also Weill 56.1 Stmt. Diaz Reply ¶ 23.) Although the December 17 letter was signed by Diaz, it was "ghost-written" for her by her attorney. (Weill 56.1 Stmt. Diaz Reply ¶ 23.)

Diaz's "continuing inadequate performance, insubordination, interpersonal deficiencies, and the substance and tone of her December 17 letter to Windhager made it clear [to Weill] that [Diaz] had no intention of addressing her work deficiencies and mistakes." (Weill 56.1 Stmt. ¶ 24: see also Provenzano Aff. ¶ 13.) After speaking with Human Resources and Provenzano, Windhager therefore "decided to terminated Diaz's employment, effective January 15, 2002." (Weill 56.1 Stmt. ¶ 24; Provenzano Aff. ¶ 13; Ex. Q: Windhager Aff. ¶ 3.) Diaz's Complaints to Weill's Human Resources Department

Weill maintains that Diaz did not discuss the comments about blood with Human Resources until July 2001 and that Diaz never reported any participation by "Sally." (Dkt. No. 30: Weill 56.1 Stmt. ¶ 29; Dkt. No., 21: Provenzano Aff. ¶ 15.) When asked at her deposition whether she ever complained to anyone at Weill about the blood-related comments, Diaz replied "I don't recall. I know many times I was upset and would visit some of the departments and talk to people. But there were too many conversations for me to recall who I said what to." (Dkt. No. 20: Ex. V: Diaz Dep. at 123.) Diaz states that she "had two meetings in October 1999 with Marcia Cohen and Elizabeth Cohan in the Human Resources Office . . ., and complained of disparate treatment." (Dkt. No. 39: Diaz Reply 56.1 Stmt. ¶ 29.) Specifically, Diaz alleges she contacted Human Resources on October 22, 1999, spoke with Marsha Cohen, and "complained of the discriminatory treatment she received from the Physiology Department and her inability to obtain a transfer out of that department." (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 20; Diaz Dep. at 141-42.) However, at her deposition, Diaz testified that in her October 22, 1999 conversation with Cohen, Diaz "just said `you're discriminating' [and] didn't mention anything else. . . . [W]hat I wanted was a transfer to get out." (Diaz Dep. at 142.) On October 26, 1999, Diaz met with Cohen's supervisor, Elizabeth Cohan, "and specifically mentioned . . . discriminatory treatment." (Diaz Supp. 56.1 Stmt. ¶ 20.) However, according to Cohan, Diaz only complained that Marsha Cohen of the Human Resources Department, not the Department of Physiology, was somehow discriminating" against her by blocking her transfer; "Diaz did not complain of any general or specific incidents of [religious or national origin] discrimination in the Department of Physiology." (Dkt. No. 34: Cohan Reply Aff. ¶ 2-4, 15; Dkt. No. 36: Kahn Reply Aff. Ex. B: Cohan 10/26/99 Handwritten Notes.) Cohan's notes from her meeting with Diaz state that: "Migdalia [Diaz] repeatedly said she has a `feeling' that she is being blocked but couldn't or wouldn't tell me how or why this is happening." (Cohan Reply Aff. ¶ 4; Kahn Reply Aff. Ex. B: Cohan 10/29/99 Handwritten Notes.) Diaz asserts that after her meetings with Cohan and Cohen, Human Resources did not address her concerns and she "suffered further work place abuse, and a lower performance rating for that period." (Diaz Supp. 56.1 Stmt. ¶ 20.)

Diaz admits that she did not notify Human Resources about Weinstein's comments until July 2001, but explains that she had "had her second meeting [with] Elizabeth Cohen [in Human Resources] just days prior to [Weinstein's] October 1999 comment" and "was painfully aware of Ms. Cohan's disinterest in pursuing, or investigating her claims." (Diaz Reply 56.1 Stmt. ¶ 31.) Diaz spoke with Windhager about Herzlinger's comments (Diaz Dep. at 151), but never reported them to Human Resources (Diaz Dep. at 153).

According to Diaz, on July 18, July 23, and August 30, 2001, Diaz complained of discrimination by Provenzano at a meeting with Tom Blair, Weill's Manager of Employee Relations and submitted to him her July 17, 2001 memorandum discussing her July 16, 2001 meeting with Provenzano. (Diaz Supp. 56.1 Stmt. ¶ 31; Dkt. No. 35: Blair Reply Aff. ¶¶ 1-2; Dkt. No. 37: Hatton Aff. Ex. 7: 8/30/01 Diaz Memo to Blair.)

Diaz's Complaints to the New York State Division of Human Rights

On July 31, 2001, Diaz filed a complaint with the New York State Division of Human Rights ("DHR"), alleging employment discrimination on the basis of age, race, and religion origin). (Dkt. No. 30: Diaz Supp. 56.1 Stmt. ¶ 32; Weill 56.1 Stmt. Diaz Reply ¶ 3; Dkt. No. 20: Ex. C: 7/31/01 Diaz DHR Compl.) In an April 9, 2002 Determination and Order After Investigation, DHR dismissed Diaz's complaint. (Weill 56.1 Stmt. ¶ 3; Ex. D: 4/9/02 DHR Determination Order.)

The day that Weill terminated Diaz's employment, January 15, 2002, Diaz filed a second DHR complaint, this time alleging retaliation for her July 31, 2001 DHR complaint. (Weill 56.1 Stmt. Diaz Reply ¶ 4; Ex. E: 1/15/02 Diaz DHR Compl.) In a June 20, 2002 Determination and Order After Investigation, DHR dismissed Diaz's complaint. (Ex. F: 6/20/02 DHR Determination Order.)

Diaz's Present Federal Lawsuit

On or about September 13, 2002, Diaz brought this lawsuit against Weill, Provenzano, and Windhager, alleging employment discrimination based on her religion and national origin. (Dkt. No. 1: Compl.; Weill 56.1 Stmt. Diaz Reply ¶ 5.) Diaz's complaint alleges that after Provenzano's alleged comment that "you people would rather die than take blood, " "Provenzano, with the knowledge and concurrence of . . . Windhager, embarked upon a course of conduct of harassment and intimidation intended to force [Diaz] to resign." (Compl. ¶¶ 18-23.) When Diaz "refused to resign, " Provenzano and Windhager, "with the knowledge and concurrence of Weill, eventually fired [Diaz] on false and trumped-up charges." (Compl. ¶ 24.) Diaz alleged that: her responsibilities were dramatically reduced after the alleged discriminatory conduct began (Compl. ¶ 25), she "was dismissed because of her religious beliefs and/or her Puerto Rican ancestry" (Compl. ¶ 35), and she "was dismissed in retaliation for having filed a charge/complaint of discrimination with both EEOC and State Division of Human Rights" (Compl. ¶ 36).

By stipulation and order, Diaz withdrew with prejudice all claims for relief under the New York State and City Human Rights Laws and all claims against Provenzano and Windhager. (Dkt. No. 5: 11/7/02 Stip. Order; Weill 56.1 Start. Diaz Reply ¶ 6; Ex. G: 11/7/02 Stip. Order.)

ANALYSIS

I. LEGAL PRINCIPLES GOVERNING TITLE VII CASESA. Summary Judgment Standards in Employment Discrimination Cases¹⁰

10 For additional cases authored by this Judge discussing the summary judgment standards in employment discrimination cases in language substantially similar to that in this entire section of this Opinion,see, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *8-10 (S.D.N.Y. Aug. 15, 2002) (Peck, MJ.): Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *12-13 (SD.N.Y. July 29, 2002) (Peck, M.J.), report rec. adopted. 235 F. Supp.2d 291 (S.D.N.Y. 2002) (Berman, D.J.); Kennebrew v. New York Hous.Auth., 01 Civ. 1654, 2002 WL 265120 at *6-7 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.);Williams v. NYC Dept of Sanitation, 00 Civ. 7371, 2001 WL 1 154627 at *8-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York City Transit Auth., 00 Civ. 4293, 2001 WL 492448 at * 6 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Economou v. Caldera, 99 Civ. 121 17, 2000 WL 1844773 at *12 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *7 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), affd. No. 01-7575, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001);Austin v. Ford Models. Inc., 95 Civ. 3731, 2000 WL 1752966 at *6 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), affd. No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), cert. denied 537 U.S. 848, 123 S.Ct. 189 (2002); Johns-Davila v. Citv of New York, 99 Civ. 1885, 2000 WL 1725418 at *3 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.); Weber v. Parfums Givenchy. Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999) (Wood, DJ. Peck, M.J.); v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, DJ. Peck, M.J.); Hernandez v. New York Citv Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that mere is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000), cert. denied 124 S.Ct. 53 (2003);Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendant. See, e.g. . . . Adickes v. S.H.Kress Co., 398 U.S. 144, 157, 90 So. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994);Gallo v. Prudential Residential Servs., Ltd. P'ship. 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof.See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Ca v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; see also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (at summary judgment, "[t]he time has come . . . `to put up or shut up'") (citation omitted).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.¹¹ The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.

11 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs. 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). cert. denied 480 U.S. 932, 107 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citation omitted); see also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.¹² Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential 22 F.3d at 1224. "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiffs position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error."Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted). Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiffs argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. H K Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). In other words, to defeat summary judgment, "the plaintiffs admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiffs explanation of intentional discrimination.") (internal quotations alterations omitted); Van Zant v. KLM Roval Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").¹³ Indeed, the Second Circuit "went out of [its] way to remind district courts that the `impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41. B. Legal Principles Governing Title VII Actions¹⁴

12 Accord e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardoza v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40.

13 See also. e.g., Budde v. H K Distrib. Co., 2000 WL 900204 at * 1: Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), affd, 117 F.3d 652, 654 (2d Cir. 1997).

14 For additional cases authored by this Judge discussing the legal principles governing employment discrimination actions, in language substantially similar to that in this entire section of this Opinion,see, e.g., Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at*10-13(S.D.N.Y. Aug. 15. 2002) (Peck. M.J.): Brown v. Cushman Wakefield, Inc., 01 Civ. 6637, 2002 WL 1751269 at *20-22) (S.D.N.Y. July 29, 2002) (Peck, M.J.); report rec. adopted. 235 F. Supp.2d 291 (S.D.N.Y. 2002) (Berman, D.J.) Kennebrew v. New York Hous.Auth., 01 Civ. 1654, 2002 WL 265120 at *7-10 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.);Williams v. NYC Dept of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *9-12 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.); Gonzalez v. New York Citv Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *10 (S.D.N.Y. May 9, 2001) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *11 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), affd. No. 01-7575, 23 Fed. Appx. 82, 2002 WL4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models. Inc., 98 Civ. 3731, 2000 WL 1752966 at *8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.), affd, No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), cert. denied 537 U.S. 848, 123 S.Ct. 189 (2002); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, DJ. Peck, M.J.);Hernandez v. New York City Law Dept, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.) Burger v. Litton, 91 Civ. 0918, 1996 WL 421449 at *8 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted. 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). Diaz's Title VII claim here is based on Diaz's religion (Jehovah's Witness) and national origin (Puerto Rican descent). (See pages 2, 6-10, 23-24 above.)

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dept of Cmty.Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981);see, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973).¹⁵ Establishment of a prima facie case "`in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).¹⁶

15 See also, e.g., Raytheon Co. v. Hernandez, 124 S.Ct. 513, 517 n. 3 (2003); Mandell v. County of Suffolk, 316 F.3d 368, 377-78 (2d Cir. 2003)Mario v. P C Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002); Collins v.' New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002);Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models. Inc., 149 F.3d 148, 152 (2d Cir. 1998); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

16 See also, e.g., Mandell v. County of Suffolk, 316 F.3d at 380;Mario v. P C Food Mkts., IB , 313 F.3d at 767; Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997).

Once a plaintiff claiming employment discrimination establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106: O'Connor v. Consolidated Coin, 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.¹⁷ The burden on the defendant at this phase is one of production rather than persuasion.E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142, 120 S.Ct. at 2106; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096.¹⁸

17 See also, e.g., Raytheon Co. v. Hernandez, 124 S.Ct. at 517n.3:Terry v. Ashcroft, 336 F.2d 128, 138 (2d Cir. 2003): Mandell v. County of Suffolk, 316 F.3d at 380: Mario v. P C Food Mkts., Inc., 313 F.3d at 767; Schnabel v. Ahramson, 232 F.3d at 88; Weinstock v. Columbia Univ, 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models. Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Chambers v. TRM, 43 F.3d at 38.

18 See also, e.g., Terry v. Ashcroft, 336 F.2d at 144 n. 17: Austin v. Ford Models. Inc., 149 F.3d at 153; Scaria v. Rubin, 1 17 F.3d at 654.

"Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas] framework, `[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."' Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106.

If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 142-43, 120 S.Ct. at 2106; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749;Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093-94.¹⁹ "Moreover, although the presumption of discrimination `drops out of the picture' once the defendant-meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiffs prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual."' Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. at 255n. 10, 101 S.Ct. at 1095n. 10).

19 See also e.g., Raytheon Co. v. Hernandez, 124 S. Ct at 517 h.3;Mandell v. County of Suffolk, 316 F.3d at 380-81; Mario v. P C Food Mkts., Inc., 313 F.3d at 767; Weinstock v. Columbia Univ., 224 F.3d at 42;Scaria v. Rubin, 117 F.3d at 654.

The Supreme Court in 2000 clarified the standard at this stage of theMcDonnell Douglas analysis:

[I]n St. Mary's Honor Center. . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiffs proffered reason . . . is correct." In other words, "[i]t is not enough . . . to dis believe the employer, the factfinder must believe the plaintiffs explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "`treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiffs prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).²⁰

20 See also, e.g., Roge v. NYP Holdings. Inc., 257 F.3d 164, 167-68 (2d Cir. 2001); Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 469-70 (2d Cir.), cert. denied 122 So. Ct. 460 (2001); James v. New York Racing Ass'n. 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Aksamit v. Civ. 5520, 2003 WL 22283813 at *6 (S.D.N.Y. Oct. 2, 2003) ("[A] plaintiffs establishment of a prima facie case and rebuttal of a nondiscriminatory reason for the adverse action do not save the plaintiff from summary judgment when there is insufficient evidence of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001); Tanay. v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson. Wyatt Co., 136 F. Supp.2d 236, 245 (S.D.N.Y.), reconsideration denied. 156 F. Supp.2d 270 (S.D.N.Y. May 18, 2001), aff'd in part appeal dismissed on other grounds. No. 01-7772, 51 Fed. Appx. 55, 2002 WL 31628399 (2d Cir. Nov. 21, 2002); Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, DJ.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.²¹II. WEILL IS ENTITLED TO SUMMARY JUDGMENTA. Diaz's Discrimination Claims Based on the Purported Comments Made Prior to October 4.2000 are Time-Barred

21 E.g., Molin v. Shapiro, No. 03-7045, 73 Fed. Appx. 511, 512, 2003 WL 22056217 at *1 (2d Cir. Sept. 4, 2003); Silverman v. Citv of New York, No. 02-9048, 64 Fed. Appx. 799, 801, 2003 WL 1970472 at * 1 (2d Cir. Apr. 23, 2003); Tarshis v. Riese Org. No. 02-7570, 66 Fed. Appx. 238, 240, 2003 WL 1600154 at *1-2 (2d Or. Mar. 27, 2003); Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d at 470; James v. New York Racing Ass'n. 233 F.3d at 1 57; Slatky v. Healthfirst. Inc. 02 Civ 5182, 2003 WL22705123at*6(SJ).N.Y. Nov. 17, 2003); Kulkarni v. Citv Univ. of New York, 01 Civ. 10628, 2002 WL 31886639 at *9 (S.D.N.Y. Dec. 27, 2002);Williams v. NYC Dept of Sanitation, 2001 WL 1154627 at *12-19; Gonzalez v. New York Citv Transit Auth., 2001 WL 492448 at *12; Weiser v. Forest Pharm., Inc., 2001 WL 293951 at *8; Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at *9; Bennett v. Watson, Wyatt Co., 136 F. Supp.2d at 249-50;Cobian v. New York City, 2000 WL 1782744 at *13: Austin v. Ford Models, Inc., 2000 WL 1752966 at * 12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000), aff'd. No. 00-9531, 51 Fed. Appx. 901, 2002 WL 3 1664452 (2d Cir. Nov. 20, 2002); Cousins v. Howell Corp., 113 F. Supp.2d 262, 268-69 (D. Conn. 2000): Ekweeablu v. Central Parking Sys., 97 Civ. 9477. 2000 WL 1371335 at 3-4 (S.D.N. Y. Sept. 22, 2000); Connell v. Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v. Jetty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000);Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N.Y. 2000).

Title VII, with certain exceptions not applicable here, requires claimants to file a charge of discrimination with the EEOC within 300 days of the alleged unlawful employment action. See. e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 106, 122 S.Ct. 2061, 2068 (2002); Quarless v. Bronx Lebanon Hosp. Ctr., No. 02-9343, 75 Fed. Appx. 846, 2003 WL 22221352 at *1 (2d Cir. Sept 26, 2003); Staff v. Pall Corp., No. 03-7002, 76 Fed. Appx. 366, 368 n*. 2003 WL 22056230 at * 1 n.* (2d Cir. Sept. 4, 2003) ("A claim based on a discrete act of alleged discrimination . . . must be filed with the EEOC within 300 days after the act occurred"); Robinson v. Front-Line Sec., Inc., No. 02-7859, 68 Fed. Appx. 258, 260, 2003 WL 21510424 at *2 (2d Cir. July 1, 2003);Tewksbury, v. Ottaway Newspapers, 192 F.3d 322, 325-29 (2d Cir. 1999); Van Zant v. KLM Roval Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) ("In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days."); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *10 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.); Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 421 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), affd. No. 99-7561, 201 F.3d 430 (table), 1999 WL 33630489 (2d Cir. Nov. 18, 1999); 42 U.S.C. § 2000e-5(e).

In this case, Diaz filed her first complaint with the New York State Division of Human Rights on July 31, 2001. (Dkt. No. 20: Ex. C: 7/31/01 Diaz DHR Compl.) Thus, discrete acts of discrimination that occurred more than 300 days prior to July 31, 2001 — i.e., before October 4, 2000 — are time barred.

Every alleged discriminatory comment was made long before October 4, 2000. Both Provenzano's `"you people rather die than take blood"' and custodian Sally's comments occurred in November 1998. (See pages 7-8 above.) Provenzano's comment that Diaz should talk to Dr" Windhager about the history of Jehovah's Witnesses was made in January 1999. (See page 8 above.) Finally, the only other comments about Jehovah's Witnesses, by Weinstein, were made in October 1999 and January 2000. (See page 9 n. 5 above.)²²

22 The comment from Herzlinge's assistant that Herzlinger felt Diaz was stupid for not celebrating Dr. Windhager's birthday would appear to be hearsay but even if considered, occurred before October 1999.

The only allegedly derogatory comment about Diaz being from Puerto Rico was Anderson's remark, overheard by Diaz, that "see what happens when they . . . move in the community, it changes, " which Diaz assumed referred to her and further assumed referred to her being Puerto Rican, occurred in 1999. (See page 10 above.)²³

23 In addition to being time barred, this single isolated remark that Diaz infers refers to her and doubly infers to be anti-Puerto Rican, is too isolated to support a claim of discrimination. See, e.g., cases cited in n. 25 accompanying text below.

There were not any discriminatory remarks within the limitations period (i.e., after October 4, 2000).²⁴

24 Indeed, as noted above, the last remark was allegedly made in January 2000. (See page 9 above.)

The Supreme Court has held that a "discrete retaliatory or discriminatory act `occurred' on the day that it `happened.'" National R.R. Passenger Corp. v. Morgan, 536 U.S. at 110, 122 S.Ct. at 2070. On the other hand, "[h]ostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Id. at 115, 122S.Ct.at2073. "`Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Holtz v. Rockefeller Co., 258 F.3d 62, 75 (2d Cir. 2001) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275 (1998) (alterations omitted)). "The incidents of allegedly offensive conduct must be `more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive."' Holtz v. Rockefeller Co., 258 F.3d at 75; see also, e.g., Rizzo-Puccio v. College Auxiliary Servs., Inc., No. 99-9272, 216 F.3d 1073 (table), 2000 WL 777955 at *3 (2d Cir. June 14, 2000) ("[I]solated remarks or occasional episodes of harassment do not constitute a hostile environment within the meaning of Title VII"); Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("`[I]solated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive."').<sup>25</sup> Here, the alleged derogatory remarks, made on only four occasions from November 1998 to January 2000, are isolated and not sufficiently pervasive to constitute a "hostile environment." See, e.g., Wood v. Sophie Davis School 02 Civ. 7781, 2003 WL 21507579 at *2 (S.D.N.Y. June 30, 2003) ("Although [plaintiff] . . . attempts to characterize these [alleged discriminatory] actions as part of a hostile work environment, which, if I accepted as true, could supply the basis for a continuing violation claim that would encompass conduct beyond the 300-day limitation period, these actions cannot be considered to create an `objectively hostile or abusive work environment.' . . . These actions are `episodic' in nature, and objectively are not sufficiently continuous and concerted enough that they so severely permeate the work environment with `discriminatory intimidation, ridicule, and insult' so as to alter the conditions of her employment and create an abusive working environment.") (quoting Harris v. Forklift Systems. Inc., 510 U.S. 17, 21, 114S.Ct.367, 370(1993)). Thus, the allegedly discriminatory remarks, all of which took place during the time bar period and none of which occurred during the 300 day look back period, are time barred. See, e.g., Johnson v. Buffalo Police Dept. No. 02-7105, 46 Fed. Appx. 11, 13, 2002 WL 31004726 at *2 (2d Cir. Sept. 6, 2002) (In Morgan, "the Supreme Court . . . foreclosed use of the continuing violations doctrine" to "`incorporate untimely claims for discrete discriminatory acts even though they may be related to a timely claim.'" "[E]ven in the absence of Morgan, the continuing violations doctrine would not be available to [plaintiff] as all of the untimely incidents of discrimination alleged were discontinuous in time with one another and with the sole timely act alleged — i.e., his termination.") (quoting Morgan), cert. denied, 123 S.Ct. 2645 (2003);Bailey v. Synthes, 295 F. Supp.2d 344, 353-54 (S.D.N.Y. Dec. 16, 2003) ("It is clear from Morgan and the relevant Second Circuit case law that the territory reductions, the allegedly unwarranted criticisms, and the crude sexist statements are discrete acts that cannot be lumped together to form a Continuing violation.'. . . . Hence, the `continuing violation' doctrine does not apply and, as a result, none of Plaintiffs Title VII . . . claims arising from actions taken by Defendants prior to [the time bar date] is actionable."); Hernandez v. Kellwood Co., 99 Civ. 10015, 2003 WL 22309326 at *14-15 (S.D.N.Y. Oct. 8, 2003) ("It is clear from Morgan and the relevant Second Circuit case law that the allegedly unwarranted negative evaluations, the pay disparities, the fact that Plaintiff was asked to do work allegedly outside her job description, and the allegedly retaliatory discharge are to be considered discrete acts and, therefore, cannot be lumped together to form a `continuing violation as to permit Plaintiff to bring all of her claims despite the fact that a number of them arise from events occurring, or actions taken outside the applicable statute of limitations period.").

25 E.g., Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at *15 ("Isolated incidents of discriminatory comments or conduct [are] not sufficient to establish a hostile work environment.") (citing cases);Adeniji v. Administration for Children Servs., 43 F. Supp.2d at 413 ("As Magistrate Judge Peck correctly points out, it is well-settled that one racial remark, or even sporadic remarks, are not sufficient to establish a hostile work environment."); see also, e.g., Atterberry v. Ikon Office Solutions, Inc., No. Civ. 302CV1490, 2003 WL 22937719 at *8 (D. Conn. Dec. 10, 2003) (Plaintiff failed to raise an inference of discrimination with only two alleged statements not bolstered by any other evidence of racial animus.) ( cases cited therein); Pagan v. New York State Div. of Parole, 98 Civ. 5840, 2003 WL 22723013 at *6 (S.D.N.Y. Nov. 18, 2003) ("Even if [defendant] called [plaintiff] a Tat Puerto Rican' twice rather than once, the series of [four] disparaging remarks attributed to him clearly does not amount to the sort of `extremely serious' behavior required to give rise to a hostile work environment under Title VII.") ( cases cited therein); Rinsler v. Sony Pictures Entail Inc., 02 Civ. 4096, 2003 WL 22015434 at *6 (S.D.N.Y. Aug. 25, 2003) (Single, stray remark, unsupported by any other evidence of discriminatory animus, did not create an inference of discrimination.) ( cases cited therein);Manessis v. New York City Dep't of Transp., 02 Civ. 359, 2003 WL 289969 at *6 (S.D.N.Y. Feb. 10, 2003) ("Single incidents, unless very serious, generally do not satisfy the necessary requirement of severity or pervasiveness."), affd. No. 03-7208, 2004 WL 206316 (2d Cir. Feb. 3, 2004).

The only acts that could possibly create a "hostile environment" was the reduction of Diaz's duties and the increase in more menial duties like cleaning and picking up petty cash. (See pages 10-13 above.) The Court finds it simpler to analyze Diaz's reduced responsibilities claim under the traditional McDonnell Douglas test rather than determining whether some or all of the conduct is time barred. B. Diaz's Reduced/Changed Job Duties Claim Lacks Merit

Diaz claims that she was not given meaningful work to do and instead was assigned menial tasks such as making coffee, cleaning up and picking up petty cash for additional people. (E.g., Dkt. No. 1: Compl. ¶ 26;see also pages 10-13 above.)

The Second Circuit has held that "[t]o constitute an adverse employment action in violation of Title VII, a change in working conditions must be `materially adverse.'" Patrolmen's Benevolent Assoc. v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002) (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)), cert. denied 123 S.Ct. 2076 (2003).

A materially adverse change "must be more disruptive than a mere inconvenience or an alteration of job responsibilities" and "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation."

Patrolmen's Benevolent Assoc. v. City of New York, 310 F.3d at 51: accord e.g., Staff v. Pall Corp., No. 03-7002, 76 Fed. Appx. 366, 368-69, 2003 WL 22056230 at *2 (2d Cir. Sept. 4, 2003); Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); see also, e.g., Williams v. New York City Dep't of Sanitation, 00 Civ. 7371, 2001 WL 1154627 at *16 n. 25 (S.D.N.Y. Sept. 28, 2001) (Peck, MJ.) ( cases cited therein). The cases hold that a decrease in workload, without a demotion or decrease in pay, is not an adverse employment action covered by Title VII. See, e.g., Wood v. Sophie Davis School, 02 Civ. 7781, 2003 WL 22966288 at *6 n. 22 (S.D.N.Y. Dec. 15, 2003) ("To the extent that plaintiff asserts that her reduced workload was a materially adverse change, this claim is not cognizable.") (citing Bennett v. Watson Wyatt Co., 136 F. Supp.2d 236, 248 (S.D.N.Y. 2001) ("A decrease in workload, without any formal demotion or reduction in pay, does not constitute an actionable adverse employment action. Plaintiffs underutilization claim is therefore dismissed.")), aff'd in part, appeal on other grounds dismissed in part. No. 01-7772, 51 Fed. Appx. 55, 2002 WL 31628399 (2d Cir. Nov. 21, 2002); Breland-Starling v. Disney Publ'g Worldwide, 166 F. Supp.2d 820, 825 (S.D.N.Y. 2001) (Plaintiff failed to show how defendant's reduction of her responsibilities adversely affected her employment where, despite the changes, plaintiff "retained the same job title, received annual merit-based pay increases, and performed the same core duty of her job . . . . [T]he changes made to plaintiffs position do not constitute a materially adverse change in her employment."):Alban-Davies v. Credit Lyonnais Sec. (USA) Inc., 00 Civ. 6150, 2001 WL 884113 at *6 (S.D.N.Y. Aug. 8, 2001) (The decision not to let plaintiff go on a sales trip does not constitute an adverse employment action, "At most, it shows that [employer] was not using [plaintiff] to his full potential.").²⁶

26 The only change in Diaz's job duties after the alleged discriminatory remarks was the requirement to pick up petty cash for others in the Department, not just for Provenzano and Windhager. (See page 11 above.) The Court finds, however, that Diaz's job duties from day one admittedly were secretarial and clerical (See pages 3-5 above), and thus picking up petty cash (especially when her other responsibilities were slow) was within her job description and not in any way evidence of discrimination. The result might be different if an employer required a high ranking executive to pick up petty cash for others, since that could be perceived a demotion. This in no way is a slight on secretaries; it is a question of whether the task is within the expected duties of a job title, or evidence of discrimination. Here, the petty cash job did not in any way evidence discriminatory intent.

But even if a decrease in workload could be considered actionable, it would not be here. At the third McDonnell Douglas step, the jury must be able to conclude that the employer's action was done for discriminatory reasons. (See cases discussed at page 32-33 above.) Here, Diaz's own proof negates any such finding. Diaz testified that before the first discriminatory remark in November 1 998, that Jehovah's Witnesses would rather die than take blood in surgery (See pages 7-8 above), Diaz's workload already was significantly reduced because of lack of work in the department. (See pages 10-13 above.) As Diaz testified, she made efforts to transfer from the Department as early as August 1998 because "the department at that time was changing. There was less and less work to do. At that time [Provenzano] was just having me just make coffee." (Diaz Dep. at 143-44;see also record citations on pages 10-13 above.) Thus, because Diaz's workload had been reduced prior to Provenzano learning she was a Jehovah's Witness and prior to a single discriminatory remark, Diaz cannot show discriminatory intent, and her claim must fail.

Thus, neither the (1) sporadic allegedly discriminatory remarks (outside the limitations period) nor (2) any reduction or change in Diaz's duties (starting before Provenzano knew Diaz was a Jehovah's Witness and before any derogatory remark) which started well before the 300 day look-back period but continued into the 300 day look-back period, constitute an adverse employment action or constitute a hostile environment.

C. Diaz Has Failed to Establish a Prima Facie Case of Retaliation

Diaz's complaint alleged that her termination on January 15, 2002 was in retaliation for her July 31, 2001 complaint with the New York State Division of Human Rights. (Dkt. No. 1: Compl. ¶ 32-33, 36.) However, Diaz's brief opposing Weill's summary judgment motion does not address the retaliation claim or Weill's summary judgment motion as to that claim. (See generally Dkt. No. 40: Diaz Br.; Dkt. No. 32: Weill Reply Br. at 2.) On this basis alone, the Court could consider the retaliation claim abandoned. See, e.g., Taylor v. City of New York, 269 F. Supp.2d 68, 75 (E.D.N.Y. 2003) ("Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way."); Arias v. NASDAO/AMEX Mkt. Group, 00 Civ. 9827, 2003 WL 354978 at *13 (S.D.N.Y. Feb. 18, 2003) (Where plaintiff's summary judgment opposition "neither refute[d] nor even mention[ed]" defendant's argument for summary judgment on two of his claims, those claims dismissed as "abandoned."); Bronx Chrysler Plymouth. Inc. v. Chrysler Corp., 212 F. Supp.2d 233, 249 (S.D.N.Y. 2002) (Where plaintiffs summary judgment opposition papers "ma[d]e no argument in support of [one] claim at all." the court dismissed the claim as "abandoned."); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 393 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.) (Where plaintiffs opposition papers "never even mention any retaliation . . . claim in his brief or affidavits . . . the Court deems all of the remaining claims in the complaint to be abandoned, and recommends that defendants be granted summary judgment dismissing these claims.") (citing cases). In any event, Diaz's retaliation claim is without merit.

Title VII retaliation claims also are governed by the McDonnell Douglas burden-shifting analysis. See. e.g., Terry v. Ashcroft, 336 F.3dat 141; Holtz v. Rockefeller Co., 258 F.3d 62, 79-81 (2d Cir. 2001); Slattery v. Swiss Reins, America Corp., 248 F.3d 87, 94 (2d Cir.),cert. denied 122 S.Ct. 348 (2001); Raniola v. Bratton, 243 F.3d 610, 624-25 (2d Cir. 2001); Sotolongo v. New York City Transit Auth., No. 99-9195, 216 F.3d 1073 (table), 2000 WL 777958 at *2-3 (2d Cir. June 15, 2000); Kennebrew v. New York Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *17 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.).²⁷

27 See also. e.g. Williams v. NYC Dept of Sanitation, 00 Civ. 7371.2001 WL 1154627 at *19-20 (S.D.N.Y. Sept. 28, 2001) (Peck, M.J.);Gonzalez v. New York Citv Transit Auth., 00 Civ. 4293, 2001 WL 492448 at *18 (S.D.N.Y. May 9, 2000) (Peck, M.J.); Economou v. Caldera. 99 Civ. 12117, 2000 WL 1844773 at *25 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.);Adeniji v. Administration for Children Servs., 43 F. Supp.2d 407, 428 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), affd., No. 99-7561, 201 F.3d 430 (table), 1999 WL 1070027 (2d Cir. Nov. 18, 1999).

Under Title VII, it is unlawful for an employer to "retaliate" by discriminating against an employee because the employee engaged in protected activity, that is, "has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).²⁸

28 See, e.g., Terry v. Ashcroft, 336 F.3d at 140: Minott v. Port Auth., 116 F. Supp.2d 513.520. 524 (S.D.N.Y. 2000) ("Title VII defines protected activities as (1) an employee's opposition to any activity which is prohibited by Title VII, or (2) an employee's participation in any Title VII investigation or proceeding."); see also Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) ("The objective of [the section prohibiting retaliation] is obviously to forbid an employer from retaliating against an employee because of the hitter's opposition to an unlawful employment practice.").

"In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence (i) participation in a protected activity known to the defendant; (ii) an employment action disadvantaging the plaintiff; and (iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995), abrogated on other grounds by,Burlington Indus. Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998).²⁹

29 Accord e.g., Terry v. Ashcroft 336 F.3d at 141; Jenkins v. Board of Educ., No. 02-7479, 64 Fed. Appx. 801, 804, 2003 WL 1970492 at *2 (2d Cir. Apr. 28, 2003); Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir.), cert. denied 124 So. Ct. 562 (2003); Holtz v. Rockefeller Co., 258 F.3d at 79; Slattery v. Swiss Reins. America Corp., 248 F.3d at 94;Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001); Gallagher v. Delahley, 139 F.3d 338, 349 (2d Cir. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Cosgrove v. Sears. Roebuck Co., 9 F.3d 1033.1039 (2d Cir. 1993) cert. denied 522 U.S. 1004, 118 S. Ct 578 (1997); Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); see also, e.g., Kennebrew v. New York Hous. Auth., 2002 WL 265120 at *17; Gonzalez v. New York City Transit Auth., 2001 WL 492448 at *18; Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *16 (S.D.N.Y. Dec. 6, 2000) (Peck, MJ.) ( cases cited therein), affd, No. 01-7575, 2002 WL 4594 at *1 (2d Cir. Dec. 21, 2001); Adeniii v. Administration for Children Servs., 43 F. Supp.2d at 419.

Here, Diaz's Division of Human Rights complaint is, of course, a "protected activity."

However, Diaz did not file her complaint until July 31, 2001, about two weeks after her first negative performance review. (See pages 18-19, 23 above.) Thus, the negative evaluation could not be in retaliation for a DHR complaint that had not yet been made.³⁰E.g., Kennebrew v. New York CityHous. Auth., 2002 WL 265120 at *17; Adeniii v. Administration for Children Servs., 43 F. Supp.2d at 428-29 (citing cases); Taylor v. Polygram Records, 94 Civ. 7689, 1999 WL 124456 at *21 (S.D.N.Y. Mar. 8, 1999) (because plaintiffs "position was already demonstrably at risk before she hired [an attorney] or filed the [EEOC] charge, Plaintiff cannot show on the basis of temporal proximity alone that her termination resulted from that conduct."); DuBois v. State of New York, 966 F. Supp. 144, 148 (N.D.N.Y. 1997) ("The alleged [retaliation] necessarily preceded plaintiffs March 12, 1996 EEOC complaint since defendant terminated her on July 22, 1995. Thus, ostensibly there can be no factual connection between these two events."); Doria v. Cramer Rosenthal McGlynn, Inc., 942 F. Supp. 937, 943 (S.D.N.Y. 1996) (Parker, DJ.) ("Here, the majority of the discriminatory acts which [plaintiff] alleges were taken in response to her EEO complaint took place prior to [the filing of her EEO complaint], and therefore could not have been retaliatory.").

30 Diaz also alleges that her first negative review on July 16, 2001 was itself discriminatory because the "evaluation did not accurately reflect the plaintiffs actual job performance. Rather, it was the culmination of the defendants[1] efforts to harass and intimidate the plaintiff and force her to quit her job." (Dkt. No. 1: Compl. ¶ 30.) However, it is well-settled that a negative evaluation alone is not an adverse employment action. E.g., Kennebrew v. New York Citv Hous. Auth., 2002 WL 265120 at * 11 (citing cases): see also, e.g., Richardson v. New York State Dept of Corr. Servs., 180 F.3d 426, 443-44 (2d Cir. 1999);Evans v. City of New York, 00 Civ. 4197, 2003 WL 22339468 at *11 (S.D.N.Y. Oct. 14, 2003) ("`[n]egative evaluations alone, without any accompanying adverse consequence are not adverse employment actions.'") (citing cases); Admassu v. Fox/Lorber Assocs., Inc., 99 Civ. 2665, 2003 WL 22290226 at *5 (S.D.N.Y. Oct. 6, 2003) ("[N]egative evaluations that are unattended by a demotion, or other tangible loss do not materially alter employment conditions.") ( cases cited therein); Demars v. O'Flynn, 287 F. Supp.2d 230, 245 (W.D.N.Y. 2003) ("`[n]egative evaluations alone, without any accompanying adverse result, . . . are not cognizable."); Khan v. Abercrombie Fitch. Inc., 01 Civ. 6163, 2003 WL 22149527 at *9 n. 3 (S.D.N.Y. Sept. 17, 2003); Manessis v. New York City Dep't of Transp., 02 Civ. 359, 2003 WL 289969 at *12 (S.D.N.Y. Feb. 10, 2003) ("It is well-settled that negative evaluations alone, without any accompanying adverse consequences, such as a demotion, diminution of wages, or other tangible loss, do not constitute adverse employment actions.") ( cases cited therein), aff'd, No. 03-7208, 2004 WL 206316 (2d Cir. Feb. 3, 2004).
Moreover, as discussed above, Diaz received positive evaluations in 1999 and 2000, after the allegedly discriminatory statements. Thus, because of the time gap and the intervening positive evaluations from the same supervisor before the July 16, 2001 negative evaluation, Diaz has not shown any causal link between the negative evaluation and any indicia of discrimination.

Nor can Diaz establish a causal connection between her July 31, 2001DHR complaint and her termination six months later on January 15, 2002. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be Very close.'" Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 1511 (2001). The Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554-555 n. 5 (2d Cir. 2001) (collecting cases). the "very close" proximity sufficient to raise an inference of causality. See, e.g., Admassu v. Fox/Lorber Assocs., Inc., 2003 WL 22290226 at *6 (Allegedly retaliatory e-mails sent six months after plaintiff filed her EEOC complaint were "simply too far removed temporally from the filing of the EEOC complaint to raise an inference of retaliation."); Khan v. Abercrombie Fitch, Inc., 2003 WL 22149527 at *9 ("[T]he five-month gap between her . . . addition to her . . . NYCCHR complaint and her termination, combined with the absence of other evidence, are too great to infer a causal connection.") ( cases cited therein); Lewis v. Snow, 01 Civ. 7785, 2003 WL 22077457 at *8 (S.D.N.Y. Sept. 8, 2003) (Motley, DJ.) ("Plaintiff fails to make a showing of protected activity which was `followed closely by the alleged retaliatory treatment" where there was a more than three-month gap between them.) ( cases cited therein); Rinsler v. Sony Pictures Entm't. Inc., 02 Civ. 4096, 2003 WL 22015434 at *9 (S.D.N. Y. Aug. 25, 2003) ("The almost six-month lag between [the protected activity] and the alleged retaliatory termination . . . is too temporally remote to support a retaliation claim.") (citing cases); Stuevecke v. New York Hosp. Med. Ctr., No. 01-CV-326, 2003 WL 22019073 at *5 (E.D.N.Y. Aug. 26, 2003) (protected activity and termination "occurred more than five months apart — a period which is too distant to permit a jury to find a causal connection between the two events based on time proximity."); Sussle v. Sirina Prot. Sys. Corp., 269 F. Supp.2d 285, 315-16 (S.D.N.Y. June 10, 2003) ("The four-month interval between the Plaintiffs [protected activity] in April 1999 and his termination in July 1999 is insufficient evidence of a causal connection. . . . In fact, courts have repeatedly held that a four-month interval does not establish a causal connection for the purposes of a retaliation claim.") ( cases cited therein); Cobian v. New York City, 2000 WL 1782744 at * 18 ("Standing alone, the lapse of more than four months between [plaintiffs] filing of her EEOC charge . . . and [the alleged retaliatory action] . . . . is insufficient evidence of a causal connection.") (citing cases).³¹

31 But see Hernandez v. Kellwood Co., 99 Civ. 10015, 2003 WL 22309326 at *20 (S.D.N.Y. Oct. 8, 2003) (Where plaintiff was fired five months after filing her EEOC charge, court found "a close enough temporal connection to establish the forth prong of the prima facie case.") (citing Suggs v. Port Auth. of N.Y. N.J., 97 Civ. 4026, 1999 WL 269905 at *6 (S.D.N.Y. May 4, 1999) (six-month gap between EEOC charge filing and termination close enough to raise inference of retaliation)).

Even if, however, the five month period were considered sufficient for purposes of the prima facie case of retaliation, Weill still would be entitled to summary judgment at the third McDonnell Douglas stage.

D. Even if Diaz Has Stated a Prima Facie Case of Retaliation, Weill Has Met its Burden to State a Legitimate, Non-Discriminatory Reason for Diaz's Termination and Diaz Has Failed to Show that the Reason isPretextual

Weill asserts that Diaz was terminated due to poor work performance that continued to decline despite oral and written warnings and "her failures to do her job became outright refusals, resulting in increased tension within the Department" of Physiology. (Dkt. No. 22: Weill 56.1 Stmt. ¶ 21.) "Plaintiffs continuing inadequate performance, insubordination, interpersonal deficiencies, and the substance and tone of her December 17 letter to Dr. Windhager made it clear that plaintiff had no intention of addressing her work deficiencies and mistakes and that her work would not improve." (Weill 56.1 Stmt. ¶ 24.)

"Of course, `[t]his Court may not second-guess an employees non-discriminatory business decisions, regardless of their wisdom.'"Kennebrew v. New York City Hous. Auth., 01 Civ. 1654, 2002 WL 265120 at *13 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.) (quoting Williams v. NYC Dep't of Sanitation 00 Civ. 7371, 2001 WL 1154627 at *18 n. 29 (S.D.N.Y. Sept. 28, 2001) (Peck, MJ.) (citing cases)); accord. e.g., Viruet. v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1.880731 at *20 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.).;

In light of Diaz's admitted refusal to perform certain assigned clerical tasks (See page 20 above), Weill's articulated reasons are sufficient to meet its burden of production at the second McDonnell Douglas step.

Once the defendant carries its burden of production by articulating legitimate, non-discriminatory reasons for its actions, as Weill has done here, "[t]he plaintiff then has `the full and fair opportunity to demonstrate,' . . . `that the proffered reason was not the true reason for the employment decision,'" but was in fact a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747 (1993) (citation omitted).³² "[T]he plaintiff, in order to defeat summary judgment, must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by . . . discrimination." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997), cert. denied 525 U.S. 936, 119 S.Ct. 349 (1998).³³ "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, `[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiffs explanation of intentional discrimination."Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citation omitted, alterations in original).³⁴ In order to demonstrate a pretext, Diaz may rely, as she is entitled to do, on the same evidence used in her attempt to build a prima facie case. Kerzer v. Kingly Mfg., 156 F.3d 396, 402 (2d Cir. 1998) (citing Gallo v. Prudential Residential Servs., Ltd. P'ship. 22 F.3d at 1225); accord, e.g., Viruet v. Citizen Advice Bureau, 2002 WL1880731 at *20.

32 Accord. e.g., Viruet v. Citizen Advice Bureau, 2002 WL 1 88073 1 at *20: Kennebrew v. New York Citv Hous.Auth., 01 Civ. 1654, 2002 WL 265120 at *14 (S.D.N.Y. Feb. 26, 2002) Peck. M.J.) Williams v. NYC Dept of Sanitation, 00 Civ. 7371. 2001 WL 1 154627 at *18 (S.D.N.Y. Sept. 28, 2001) (Peck, MJ.); Gonzalez v. New York Citv Transit Auth., 00 Civ. 4293, 2001 WL 492448 at * 16 (S.D.N.Y. May 9, 2001) (Peck, MJ.); Economou v. Caldera, 99 Civ. 121 17, 2000 WL 1844773 at *26 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *12 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), affd. No. 01-7575, 23 Fed. Appx. 82, 2002 WL4594 (2d Cir. Dec. 21, 2001); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *12 (S.D.N.Y. Nov. 29, 2000) (Peck, MJ.), affd. No. 01-7030, 22 Fed. Appx. 76, 2001 WL 1562070 (2d Cir. Dec. 4, 2001), cert. denied 537 U.S. 848, 123 S.Ct. 189 (2002); Weber v. Parfums Givenchy. Inc., 49 F. Supp.2d 343, 358 (S.D.N.Y. 1999) (Wood, D J. Peck, M.J.); Scaria v. Rubin, 94 Civ. 33313, 1996 WL 389250 at *9 (S.D.N.Y. July 11, 1996) (Peck, MJ.), affd. 117 F.3d "652, 653-54 (2a Cir. 1997).

33 Accord, e.g., Panzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.) cert. denied 525 U.S. 100, 119 S.Ct. 511 (1998): Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at 20; Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at *14; Williams v. NYCDep't of Sanitation, 2001 WL 1154627 at *18:Gonzalez v. New York Citv Transit Auth., 2001WL492448 at * 16: Austin v. Ford Models. Inc., 2000 WL 1752966 at *12; Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Weber v. Parfums Givenchy. Inc., 49 F. Supp.2d at 358; see, e.g., St. Mary's v. Hicks, 509 U.S. at 515, 113 S.Ct. at 2752 (a proffered "reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason");Scaria v. Rubin, 117 F.3d at 654: Gallo v. Prudential Residential Servs., Ltd. P'ship. 22 F.3d 1219.1225 (2d Cir. 1994); see also cases cited at pages 25-29 above.

34 Accord. e.g., Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at 20: Kennebrew v. New York City Hous. Auth., 2002 WL 265120 at* 14:Williams v. NYC Dept of Sanitation, 2001 WL 1154627 at *18; Austin v. Ford Models. Inc., 2000 WL 1752966 at *12.

The Second Circuit has "h[e]ld that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a [district] court examining the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2dCir. 2000); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48, 120 S.Ct. 2097, 2108-09 (2000); see cases cited at pages 32-34 n. 20 above.

Diaz admits that she refused to complete her assigned tasks, and Weill terminated her only after her poor performance continued after she received several negative reviews and warnings. ( See pages 19-21 above.) The task she admittedly refused to do — picking up petty cash — was generally appropriate for a secretarial/clerical employee with a minimal workload. In addition, Diaz failed to establish a temporal causal connection between Diaz's July 31, 2001 NYSDHR complaint and Weill's termination of her five months later on January 15, 2002. The first discriminatory comment was more than three years before, in November 1998, and the last was two years before in January 2000. Diaz's prima facie case is weak; Weill's explanation of its conduct is strong; and Diaz's evidence simply does not create an inference of retaliation or discrimination sufficient to defeat Weill's summary judgment motion.E.g., Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir.) (Plaintiffs "very weak prima facie case, combined with an at best dubious showing of pretext, that in itself does not implicate discrimination, is simply not enough to support the jury's conclusion that he was fired because of his age."), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1988).³⁵

35 See also, e.g., Allah v. City of New York Dept of Parks Recreation, No. 01-9114.47 Fed. Appx. 45, 49, 2002 WL 31119698 at *3 (2d Cir. Sept. 25, 2002) (Where defendant "offered significant evidence and not just plausible articulations for most of the actions it took against" plaintiff, and plaintiff established "a very weak" prima facie case and offered "almost no evidence of pretext, " court held that plaintiff "offered insufficient evidence to allow a reasonable fact finder to conclude that [defendant's] proffered reasons were pretextual and its real motive discrimination."), cert. denied, 537 U.S. 1232, 123 S.Ct. 1357 (2003); Winiarski v. Conn. Dept of Pub. Health, 273 F. Supp.2d 189, 192 (D. Conn. 2003) (Defendants were entitled to summary judgment where plaintiffs "prima facie case is not strong; [defendant's] explanation that no discrimination occurred is supported by substantial evidence; plaintiffs proof of pretext is notably weak; and she presents no other evidence to support a finding of discrimination."); Viruet v. Citizen Advice Bureau, 2002 WL 1880731 at 21;Austin v. Ford Models, Inc., 2000 WL 1752966 at *15; Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *9 (S.D.N.Y. Oct. 23, 2000); Simmons v. ATT, Inc., 96 Civ. 2844, 1998 WL 751659 at *8 (S.D.N.Y. Oct. 28, 1998), affd. No. 98-9560, 182 F.3d 901 (table), 1999 WL 464983 (2d Cir. June 21, 1999).

Thus, because Weill had a legitimate reason for terminating Diaz, and Diaz has not proven that Weill's reason was pretextual, Weill is granted summary judgment on Diaz's Title VII retaliation claim (and on her discrimination claim).

CONCLUSION

For the reasons stated above, Weill's summary judgment motion is granted and Diaz's claims are dismissed. The Clerk of Court is to enter judgment dismissing Diaz's complaint.

SO ORDERED.