Marinacci v. United States Postal Service et al

MOTION for Summary Judgment

E.D.N.Y.July 22, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK RUDY J. MARINACCI, Plaintiff, v. UNITED STATES POSTAL SERVICE, PATRICK DONAHOE, and MEGAN BRENNAN, Defendants. Civil Action No.: 15-CV-1118 (DeArcy Hall, J.) (Tiscione, M.J.) NOTICE OF MOTION FOR SUMMARY JUDGMENT PLEASE TAKE NOTICE that, upon the pleadings filed in this action and the accompanying Memorandum of Law, Statement of Undisputed Material Facts, and the Declaration of Assistant U.S. Attorney Rukhsanah L. Singh, with exhibits annexed thereto, Defendants United States Postal Service (“USPS”), Patrick Donahoe, and Megan Brennan (collectively, “Defendants”), by their attorney, Robert L. Capers, United States Attorney for the Eastern District of New York, Rukhsanah L. Singh, Assistant United States Attorney, of counsel, will move this Court before the Honorable LaShann DeArcy Hall, United States District Judge, United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York 11201, at a date and time to be determined by the Court, for the entry of an Order entering summary judgment in Defendants’ favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. PLEASE TAKE FURTHER NOTICE that any and all papers in opposition to this motion must be served on the undersigned by June 3, 2016, and reply papers, if any, must be served on Plaintiff by June 17, 2016. Case 1:15-cv-01118-LDH-ST Document 34 Filed 07/22/16 Page 1 of 2 PageID #: 159 2 Dated: Brooklyn, New York May 6, 2016 ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendants 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 TO: [via Federal Express] Rudy J. Marinacci Plaintiff Pro Se 67-03 Bell Boulevard Flushing, New York 11364 Case 1:15-cv-01118-LDH-ST Document 34 Filed 07/22/16 Page 2 of 2 PageID #: 160 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK RUDY J. MARINACCI, Plaintiff, v. UNITED STATES POSTAL SERVICE, PATRICK DONAHOE, and MEGAN BRENNAN, Defendants. Civil Action No.: 15-CV-1118 (DeArcy Hall, J.) (Tiscione, M.J.) NOTICE TO PRO SE LITIGANT WHO OPPOSES A MOTION FOR SUMMARY JUDGMENT The defendants in this case have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This means that the defendants have asked the Court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS YOU ASSERT IN YOUR COMPLAINT AND/OR AMENDED COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits and/or other documents as required by Rule 56(c) of the Federal Rules of Civil Procedure and by Local Civil Rule 56.1. The full text of Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1 is attached. Case 1:15-cv-01118-LDH-ST Document 34-1 Filed 07/22/16 Page 1 of 6 PageID #: 161 2 In short, Rule 56 provides that you may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendants and raising specific facts that support your claim. If you have proof of your claim, now is the time to submit it. Any witness statements must be in the form of affidavits. An affidavit is a sworn statement of fact based on personal knowledge stating facts that would be admissible in evidence at trial. You may submit your own affidavit and/or the affidavits of others. You may submit affidavits that were prepared specifically in response to defendants’ motion for summary judgment. If you do not respond to the motion for summary judgment on time with affidavits and/or documents contradicting the material facts asserted by the defendants, the Court may accept defendants= facts as true. Your case may be dismissed and judgment may be entered in defendants’ favor without a trial. If you have any questions, you may direct them to the Pro Se Office at (718) 613-2665. Dated: Brooklyn, New York May 6, 2016 ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendants 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 TO: [via Federal Express] Rudy J. Marinacci Plaintiff Pro Se 67-03 Bell Boulevard Flushing, New York 11364 Case 1:15-cv-01118-LDH-ST Document 34-1 Filed 07/22/16 Page 2 of 6 PageID #: 162 Case 1:15-cv-01118-LDH-ST Document 34-1 Filed 07/22/16 Page 3 of 6 PageID #: 163 Case 1:15-cv-01118-LDH-ST Document 34-1 Filed 07/22/16 Page 4 of 6 PageID #: 164 P a g e - 4 8 - (c) Mailing of Papers. Unless otherwise ordered by the Court, all papers submitted to the Court pursuant to Local Civil Rule 55.2(a) or (b) above shall simultaneously be mailed to the party against whom a default judgment is sought at the last known residence of such party (if an individual) or the last known business address of such party (if a person other than an individual). Proof of such mailing shall be filed with the Court. If the mailing is returned, a supplemental affidavit shall be filed with the Court setting forth that fact, together with the reason provided for return, if any. COMMITTEE NOTE Although Fed. R. Civ. P. 55(b) does not require service of notice of an application for a default judgment upon a party who has not appeared in the action, the Committee believes that experience has shown that mailing notice of such an application is conducive to both fairness and efficiency, and has therefore recommended a new Local Civil Rule 55.2(c) providing for such mailing. Local Civil Rule 56.1. Statements of Material Facts on Motion for Summary Judgment a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion. (b) The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried. (c) Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. Case 1:15-cv-01118-LDH-ST Document 34-1 Filed 07/22/16 Page 5 of 6 PageID #: 165 P a g e - 4 9 - (d) Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c). COMMITTEE NOTE The requirement embodied in Local Civil Rule 56.1 is firmly rooted in the local practice of the Southern and Eastern Districts, and the Committee recommends its retention. The language of Local Civil Rule 56.1 was revised in 2004 to make clear that any statement pursuant to Local Civil Rule 56.1 must be divided into brief, numbered paragraphs, that any opposing statement must respond specifically and separately to each numbered paragraph in the statement, and that all such paragraphs in both statements and opposing statements must be supported by citations to specific evidence of the kind required by Fed. R. Civ. P. 56(c). The Committee believes that the language adopted in 2004 sets forth these requirements clearly, and does not recommend any changes in that language. Local Civil Rule 56.2. Notice to Pro Se Litigant Who Opposes a Summary Judgment Any represented party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, the following “Notice To Pro Se Litigant Who Opposes a Motion For Summary Judgment” with the full texts of Fed. R. Civ. P. 56 and Local Civil Rule 56.1 attached. Where the pro se party is not the plaintiff, the movant shall amend the form notice as necessary to reflect that fact. Case 1:15-cv-01118-LDH-ST Document 34-1 Filed 07/22/16 Page 6 of 6 PageID #: 166 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK RUDY J. MARINACCI, Plaintiff, v. UNITED STATES POSTAL SERVICE, PATRICK DONAHOE, and MEGAN BRENNAN, Defendants. Civil Action No.: 14-CV-3903 (DeArcy Hall, J.) (Tiscione, M.J.) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendants 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 RUKHSANAH L. SINGH Assistant United States Attorney (Of Counsel) May 6, 2016 Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 1 of 29 PageID #: 167 TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................2 STANDARD OF REVIEW .............................................................................................................3 APPLICABLE LAW UNDER TITLE VII AND THE ADEA .......................................................3 I. The Exhaustion Requirement Under Title VII and The ADEA ..........................................4 II. Burdens of Proof in Employment Discrimination Cases .....................................................4 ARGUMENT ...................................................................................................................................5 I. Plaintiff Cannot Pursue Unexhausted Claims ......................................................................5 II. Plaintiff Cannot Establish a Prima Facie Case of Discrimination Based on Race, Color, Gender, Religion, National Origin, or Age ...............................................................7 A. Not All of the Challenged Agency Actions Are Adverse Employment Actions .....................................................................................................................7 B. There is No Inference of Discriminatory Intent .....................................................10 C. Plaintiff Cannot Establish a Prima Facie Case of a Hostile Work Environment or Harassment ..................................................................................14 III. Plaintiff Cannot Meet His Burden Of Establishing A Prima Facie Case Of Retaliation ..........................................................................................................................16 A. Plaintiff’s Protected Activity .................................................................................17 B. There is No Causal Connection Between The Challenged Agency Actions and Any Protected Activity ....................................................................................18 IV. Defendants Had Legitimate Reasons For The Challenged Agency Actions, Which Plaintiff Cannot Show Is Pretext........................................................................................19 A. Defendants Acted Pursuant to Legitimate Reasons ...............................................20 B. Plaintiff Cannot Demonstrate That Defendants’ Legitimate Reasons Were Pretextual ...............................................................................................................24 CONCLUSION ..............................................................................................................................25 Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 2 of 29 PageID #: 168 i TABLE OF AUTHORITIES Page Cases Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456 (2d Cir. 2001) ...................................... 11, 12 Aiossa v. Bank of Am., N.A., No. 10-CV-1275, 2012 WL 4344183 (E.D.N.Y. Sept. 21, 2012) .. 19 Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002) ....................................................................... 4, 14 Almonord v. Kingsbrook Jewish Med. Ctr., No. 04-CV-4071, 2007 WL 2324961 (E.D.N.Y. Aug. 10, 2007) ................................................................................................................................... 11 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 3 Batchelor v. City of New York, 12 F. Supp. 3d 458 (E.D.N.Y. 2014) ............................................ 9 Beshty v. General Motors, 144 F. App’x 196 (2d Cir. 2005) ................................................. 22, 23 Boos v. Runyon, 201 F.3d 178 (2d Cir. 2000)......................................................................... 4, 5, 6 Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179 (E.D.N.Y. 2014) ...................................... 8 Brennan v. Metro. Opera Ass’n, 192 F.3d 310 (2d Cir. 1999) ............................................... 14, 16 Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119 (2d Cir. 2012) ......................... 4, 16 Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ................................................ 9 Cassotto v. Donahoe, 600 F. App’x 4 (2d Cir. 2015) ................................................................... 17 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 3 Champion v. Artuz, 76 F.3d 483 (2d Cir. 1996) ............................................................................. 3 Chan v. Donahoe, 63 F. Supp. 3d 271 (E.D.N.Y. 2014) .......................................................... 6, 18 Chang v. Safe Horizons, 254 F. App’x 838 (2d Cir. 2007) .......................................................... 16 Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) ..................................................... 15, 17, 19 Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003) ........................................................................... 4, 6 Dister v. Cont’l Grp., Inc., 859 F.2d 1108 (2d Cir. 1988) ............................................................ 20 Dixon v. Int’l Fed. of Accountants, 416 F. App’x 107 (2d Cir. 2011) .......................................... 19 Drummond v. IPC Int’l, Inc., 400 F. Supp. 2d 521 (E.D.N.Y. 2005) ................................. 6, 10, 11 El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010) ..................................................... 25 Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000) ..................................... 8, 10 Gordon v. New York City Bd. of Educ., 232 F.3d 111 (2d Cir. 2000) .......................................... 17 Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000) ............................................................ 12 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) .................................................................... 17 Gutierrez v. City of New York, 756 F. Supp. 2d 491 (S.D.N.Y. 2010) ........................................... 9 Henry v. Daytop Vill., Inc., 42 F.3d 89 (2d Cir. 1994) ................................................................. 24 Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010) ............................................................................... 16 Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) ................................................................ 7, 20 Johnson v. Cty of Naussau, No. 10-CV-6061, 2014 WL 4700025 (E.D.N.Y. Sept. 22, 2014) .... 24 Joseph v. Owens & Minor Dist., Inc., 5 F. Supp. 3d 295 (E.D.N.Y. 2014) .................................. 23 Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005) ................................................ 17 Karla v. HSBC Bank USA, N.A., 567 F. Supp. 2d 385 (E.D.N.Y. 2008), aff’d sub nom., 360 F. App’x 214 (2d Cir. 2010) ......................................................................................................... 25 Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59 (2d Cir. 1992) ..................................... 18 Kwan v Andalex Group LLC, 737 F.3d 834 (2d Cir. 2013) .......................................................... 19 LaGrande v. Key Bank Nat’l Ass’n, 393 F. Supp. 2d 213 (S.D.N.Y. 2005) ................................... 3 Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 3 of 29 PageID #: 169 ii Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ....................................................................... 3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ...................................................... 4, 14 McGuinness v. Lincoln Hall, 263 F.3d 49 (2d Cir. 2001) ............................................................ 14 Medwid v. Baker, 752 F. Supp. 125 (S.D.N.Y. 1990) .................................................................... 8 Nelson v. Hernandez, 524 F. Supp. 2d 212 (E.D.N.Y. 2007) ......................................................... 3 Nicastro v. Runyon, 60 F. Supp. 2d 181 (S.D.N.Y. 1999) ............................................................ 19 Nieves v. Angelo, Gordon & Co., 341 F. App’x 676 (2d Cir. 2009) ............................................ 22 Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999) .............................................. 12 Porter v. Donahoe, 962 F. Supp. 2d 491 (E.D.N.Y. 2013) .............................................. 16, 17, 23 Quarles v. GM Corp., 758 F.2d 839 (2d Cir. 1985) ....................................................................... 3 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000) ............................................ 4, 20 Renaud v. Fed. Express Corp., 10-CV-4261, 2012 WL 34089 (E.D.N.Y. Jan. 6, 2012) ............. 24 Sethi v. Narod, 12 F. Supp. 3d 505 (E.D.N.Y. 2014) ..................................................................... 7 Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997) ........................................ 12, 13 Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556 (2d Cir. 2011) .................. 8, 9, 12 Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) .............................................................................. 9 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ............................................ 5, 7, 12 Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct. 2517 (2013) .............................. 17 Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224 (2d Cir. 2000) ........................................... 16 Williams v. Brooklyn Union Gas Co., 819 F. Supp. 214 (E.D.N.Y 1993).............................. 10, 11 Williams v. New York City Hous. Auth., 458 F.3d 67 (2d Cir. 2006) ......................................... 4, 6 Statutes 29 U.S.C. § 623(a)(1) ...................................................................................................................... 3 29 U.S.C. § 623(d) .......................................................................................................................... 4 29 U.S.C. §§ 621 to 634 .................................................................................................................. 1 42 U.S.C. § 2000e-16(a) ................................................................................................................. 3 42 U.S.C. § 2000e-3(a) ................................................................................................................... 4 42 U.S.C. § 2000e-5(e) ................................................................................................................... 4 42 U.S.C. §§ 2000e to 2000e-17 ..................................................................................................... 1 Rules Fed. R. Civ. P. 56 ........................................................................................................................ 1, 3 Regulations 29 C.F.R. § 1614.101(a).................................................................................................................. 3 29 C.F.R. § 1614.101(b) ................................................................................................................. 4 29 C.F.R. § 1614.105 .............................................................................................................. 4, 5, 6 29 C.F.R. § 1614.105(a)(1) ......................................................................................................... 4, 5 29 C.F.R. § 1614.106 ...................................................................................................................... 4 29 C.F.R. § 1614.201 ...................................................................................................................... 4 Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 4 of 29 PageID #: 170 1 PRELIMINARY STATEMENT Defendants United States Postal Service (“USPS”), Patrick Donahoe, and Megan Brennan1 (collectively, “Defendants”) respectfully submit this memorandum of law in support of their motion for the entry of summary judgment in their favor pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Rudy J. Marinacci (“Plaintiff”) brings this action, pro se, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634 (“ADEA”). (See Dkt. No. 1). Plaintiff alleges that Defendants failed to promote him and subjected him to unequal terms and conditions of employment, a hostile work environment, harassment, and retaliation based on his race (Caucasian), color (white), gender (male), religion (Catholic), national origin (American), and age (born in 1957). (Dkt. No. 1). Plaintiff specifically alleges that Defendants violated Title VII and the ADEA when they purportedly: (1) embarrassed him during staff meetings in June 2011; (2) terminated, earlier than scheduled, a temporary detail to a higher level position; (3) did not select him to fill the position of Manager Customer Services of the Fresh Meadows Station; (4) embarrassed him by interviewing other employees following complaints of a hostile work environment; (5) did not permit him to work a modified scheduled from August 8 through 12, 2011 so that he could work elsewhere; and (6) did not reassign his first choice acting supervisor to work under him at the Middle Village Station. (See Dkt. No. 1). Plaintiff also alleges that the USPS used an “altered” transcript from a state criminal action, sin which Plaintiff 1 The head of the agency is the only proper party defendant in an action brought under Title VII or the ADEA. See 42 U.S.C. § 2000e-16(c); Healy v. United States Postal Serv., 677 F. Supp. 1284, 1287, 1289 (E.D.N.Y. 1987) (Constantino, J.). To the extent Plaintiff’s Complaint survives the instant motion, Defendants respectfully request that the USPS be dismissed from this action as improperly named. See Healy, 677 F. Supp. at 1287-90. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 5 of 29 PageID #: 171 2 entered a guilty plea, and did not respond to a request for documents in a state civil matter arising from an altercation between Plaintiff and another USPS employee. (Dkt. No. 1). This action should be dismissed in its entirety because Defendants did not unlawfully discriminate or retaliate against Plaintiff. First, Plaintiff failed to exhaust his administrative remedies regarding his claims of: gender discrimination; “humiliation” during staff meetings in June 2011; and the alleged failure to respond to a request for documents in an unrelated state civil lawsuit. Simply, Plaintiff did not administratively exhaust those claims. Second, Plaintiff cannot meet his burdens of establishing a prima facie claim of discrimination, a hostile work environment, harassment, or retaliation. He has failed to show that: (a) much of the challenged agency actions constitute legally actionable adverse employment actions; or (b) any alleged adverse employment action occurred under circumstances that would give rise to an inference of discrimination. Nor is there any evidence that would demonstrate a discriminatory or retaliatory animus behind any of the challenged agency actions. Plaintiff admits that his race, color, gender, religion, national origin, or age did not come up during any of the challenged agency actions. Defendants also did not treat him differently from “similarly situated” individuals outside of his protected classes, and they had legitimate, non- discriminatory, non-retaliatory, non-pretextual reasons for the conduct at issue. Defendants, therefore, respectfully request that this Court enter summary judgment in their favor and dismiss all claims asserted against them in Plaintiff’s Complaint. STATEMENT OF FACTS For a complete statement of the facts material to the arguments presented in this Memorandum, Defendants respectfully refer the Court to Defendants’ Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“56.1 & __”) and the Declaration of Assistant U.S. Attorney Rukhsanah L. Singh (“Singh Decl.”), with exhibits annexed thereto. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 6 of 29 PageID #: 172 3 STANDARD OF REVIEW A court will grant summary judgment where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court may enter summary judgment in the defendant’s favor if the plaintiff proffers evidence that is merely “colorable” or “not significantly probative.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. The existence of factual disputes that are not material will not preclude the entry of summary judgment. See Quarles v. GM Corp., 758 F.2d 839, 840 (2d Cir. 1985). As a result, a plaintiff “must make a sufficient showing on the essential elements of his case for which he bears the burden of proof at trial.” Nelson v. Hernandez, 524 F. Supp. 2d 212, 219 (E.D.N.Y. 2007) (Gershon, J.) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A pro se plaintiff must similarly meet this burden to withstand the entry of summary judgment, provided due notice of the motion is given to the plaintiff.2 See Champion v. Artuz, 76 F.3d 483, 485-86 (2d Cir. 1996); LaGrande v. Key Bank Nat’l Ass’n, 393 F. Supp. 2d 213, 221-22 (S.D.N.Y. 2005). APPLICABLE LAW UNDER TITLE VII AND THE ADEA Plaintiff asserts claims arising under Title VII and the ADEA. (See Dkt. No. 1). Title VII prohibits discrimination in “personnel actions affecting employees . . . based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a); see also 29 C.F.R. § 1614.101(a). The ADEA further prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment[] because of such individual’s age.” 29 U.S.C. § 623(a)(1). Both Title VII and the ADEA prohibit an employer 2 See also Notice to Pro Se Litigant submitted herewith pursuant to Local Civil Rule 56.2. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 7 of 29 PageID #: 173 4 from retaliating against an employee because of that employee’s opposition to an unlawful employment practice or initiation of, or participation in, a charge of discrimination. 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d); 29 C.F.R. § 1614.101(b). I. THE EXHAUSTION REQUIREMENT UNDER TITLE VII AND THE ADEA Both Title VII and the ADEA require that a plaintiff file a timely charge of discrimination with the Equal Employment Office (“EEO”) Commission as a precondition to filing an action in federal court, absent limited circumstances under the ADEA. See 42 U.S.C. § 2000e-5(e); 29 C.F.R. §§ 1614.105, 1614.106, 1614.201. A charge of discrimination filed with the EEO is timely only where the claimant consults an EEO counselor within 45 days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1). Failure to comply with the 45-day time period, without any basis for equitable tolling, bars as untimely an action brought for employment discrimination. See Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000). A district court may hear only those claims that a plaintiff raised in his underlying administrative charge or that are “reasonably related” to a claim in an EEO charge, see Deravin v. Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003); Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002). Whether a claim is “reasonably related” to an EEO charge depends on whether the EEO charge provided adequate notice to the agency to investigate the alleged discriminatory conduct. See Williams v. New York City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006); Deravin, 335 F.3d at 201. II. BURDENS OF PROOF IN EMPLOYMENT DISCRIMINATION CASES To evaluate discrimination claims brought under Title VII or the ADEA, courts apply the burden shifting analysis that the Supreme Court of the United States set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000) (applying McDonnell Douglas analysis to ADEA claim); Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (same). McDonnell Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 8 of 29 PageID #: 174 5 Douglas provides the following analysis. At step one, Plaintiff bears “the burden of proving by the preponderance of the evidence a prima facie case of discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If Plaintiff meets that burden, then, at step two, the burden of proof shifts to Defendants to “articulate some legitimate, nondiscriminatory reason for” the adverse employment action. Id. at 253 (internal quotation marks and citation omitted). If Defendants meet that burden, then, at step three, the burden shifts back to Plaintiff who must then prove by a preponderance of the evidence that Defendants’ articulated reason is a mere pretext. Id. Although the burden of proof shifts under the McDonnell Douglas analysis, Plaintiff bears, at all times, the burden of persuasion. Id. at 253. ARGUMENT I. PLAINTIFF CANNOT PURSUE UNEXHAUSTED CLAIMS Plaintiff seeks to assert claims that were not timely presented to the EEO. First, Plaintiff bases his claims in part on alleged “humiliation” he felt during staff meetings held in June 2011. (See Dkt. No. 1). Specifically, Plaintiff complains of teleconferences that took place from June 1, 2011 through June 22, 2011 and an in-person “Function 4 staff meeting” held on June 15, 2011. (56.1 at ¶¶ 7-12, 64; Singh Decl., Ex. D at pp. 2-3, Ex. E at 2, Ex. U at 44:7-18, 45:5-47:8, Ex. X, Ex. AA). Pursuant to 29 C.F.R. § 1614.105(a)(1), Plaintiff had 45 days from the dates of those meetings to initiate contact with an EEO counselor. However, Plaintiff did not initiate contact until August 10, 2011, which is 49 days after the last June 22, 2011 meeting. (56.1 at ¶ 59; Singh Decl., Ex. W). Plaintiff has offered no basis, nor is there any, to equitably toll the 45-day time limit. See Boos, 201 F.3d at 184-85. Accordingly, Plaintiff’s claims based on the staff meetings are barred as untimely and should be dismissed. See 29 C.F.R. § 1614.105(a)(1). Second, in this action, Plaintiff impermissibly asserts claims that he never presented to the EEOC. Here, Plaintiff asserts for the first time in his Complaint that Defendants Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 9 of 29 PageID #: 175 6 discriminated against him based on his gender and by allegedly failing to respond to a discovery request served in an unrelated state civil lawsuit between Plaintiff and another USPS employee. (See Dkt. No. 1). Plaintiff did not present these claims to the EEO. (See 56.1 at ¶¶ 63-69; Singh Decl., Exs. X, AA). As a result, Plaintiff failed to administratively exhaust those claims, as he was required to do, and those claims should be dismissed. See 29 C.F.R. § 1614.105(a); Chan v. Donahoe, 63 F. Supp. 3d 271, 298 (E.D.N.Y. 2014) (Weinstein, J.) (dismissing plaintiff’s Title VII national origin discrimination claim, where plaintiff’s underlying EEO complaint alleged race and age discrimination, as well as retaliation, but not national origin discrimination) Further, the unexhausted claims are not “reasonably related” to Plaintiff’s EEO charge. See Deravin, 335 F.3d at 201. Plaintiff’s EEO charge made no mention of any conduct purportedly taken because of, or relating to, his gender (and indeed, all alleged responsible management officials identified by Plaintiff are the same gender as Plaintiff). (See 56.1 at ¶¶ 63- 69; Singh Decl., Exs. X, AA); see also Drummond v. IPC Int’l, Inc., 400 F. Supp. 2d 521, 532 (E.D.N.Y. 2005) (Hurley, J.) (recognizing there is an inference against discrimination “where the person who participated in the allegedly adverse decision is also a member of the same protected class”). Nor did Plaintiff’s EEO complaint allege a purported failure to respond to a request for documents in connection with a civil action between two USPS employees. (See 56.1 at ¶¶ 63- 69; Singh Decl., Exs. X, AA). Indeed, the claims presented in Plaintiff’s EEO charge provided no notice to the USPS that it should investigate gender discrimination claims or an alleged failure to respond to a request for documents. See, c.f., Williams, 458 F.3d at 70 (finding an unexhausted claim could be “reasonably related” to an EEO charge if the charge provided sufficient notice that it should investigate the unexhausted claim). Accordingly, the Court should dismiss Plaintiff’s unexhausted claims. See 29 C.F.R. § 1614.105; Boos, 201 F.3d at 184-85. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 10 of 29 PageID #: 176 7 II. PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION BASED ON RACE, COLOR, GENDER, RELIGION, NATIONAL ORIGIN, OR AGE To meet his burden at the first step of the McDonnell Douglas analysis, Plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. See Burdine, 450 U.S. at 252-53. A prima facie case requires four elements: (1) Plaintiff belongs to a protected class; (2) Plaintiff was qualified for the position; (3) Plaintiff was subjected to an adverse employment action; and (4) “the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). A plaintiff’s “mere subjective belief that he was discriminated against does not sustain a discrimination claim.” Sethi v. Narod, 12 F. Supp. 3d 505, 536 (E.D.N.Y. 2014) (Brodie, J.) (internal quotation and editing marks omitted). Here, Plaintiff cannot meet his burden of establishing a prima facie case of discrimination because not all of the challenged agency actions rise to the level of an adverse employment action and, even if they did, the alleged adverse employment actions did not occur “under circumstances giving rise to an inference of discriminatory intent.” Holcomb, 521 F.3d at 138. Plaintiff also cannot meet his burden of establishing a prima facie case for a hostile work environment or harassment. A. Not All of the Challenged Agency Actions Are Adverse Employment Actions Plaintiff cannot establish that he suffered an adverse employment action when: (1) he felt embarrassed during staff meetings in June 2011 by questions relating to his station’s goals and performance; (2) Defendants interviewed employees who had complained of a hostile work environment; (3) Plaintiff’s supervisor, Mr. Stremel, did not approve a modification of Plaintiff’s schedule for five days in August 2011; and (4) Mr. Stremel did not re-assign Plaintiff’s first choice as an acting supervisor in Plaintiff’s station. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 11 of 29 PageID #: 177 8 An adverse employment action is “a materially adverse change in the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). Adverse employment actions include “termination of employment, 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.” Id. To rise to the level of an adverse employment action, the employment action must have a negative result, “a deprivation of a position or an opportunity.” Medwid v. Baker, 752 F. Supp. 125, 136- 37 (S.D.N.Y. 1990). Mere inconveniences, changes in job responsibilities, petty slights, and minor annoyances are not materially adverse employment actions. See Galabya, 202 F.3d at 640; Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (“Title VII does not set forth a general civility code for the American workplace.” (internal quotation marks and citation omitted)). A court applies an objective standard to determine if conduct is a materially adverse employment action. Tepperwien, 663 F.3d at 568. First, alleged questioning and remarks disparaging Plaintiff’s work or performance purportedly made during routine staff meetings are not adverse employment actions. See id. at 570-71 (recognizing that “criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action” (internal quotation marks omitted)); Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 216 (E.D.N.Y. 2014) (Brodie, J.) (finding plaintiff’s claims that she “was singled out for excessive scrutiny and discipline” did not constitute a materially adverse action). Second, the agency’s efforts to interview employees who had complained of a hostile work environment, to which Plaintiff was alleged to have contributed, also does not constitute an adverse employment action against Plaintiff. (56.1 at ¶¶ 24-25, 30-32; Singh Decl., Ex. D at 3, Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 12 of 29 PageID #: 178 9 Ex. E at 3-5, Ex. H, Ex. U at 87:19-88:9). While Plaintiff characterizes the agency’s investigative efforts as a “witch hunt” survey, the undisputed evidence establishes that Postmaster Roggenkamp requested that the interviews be conducted (and he referred to them as a “climate assessment”) to investigate the claims and gauge the source of the complaint. (56.1 at ¶ 30; Singh Decl., Ex. E at 5, Ex. H). Defendants did not take any action as to Plaintiff as a result of the interviews. (56.1 at ¶ 32; Singh Decl., Ex. E at 5, Ex. U at 87:19-88:9). There simply was no change in Plaintiff’s employment, let alone a material change to the terms and conditions of his employment. See Tepperwien, 663 F.3d at 569-70 (finding three fact-finding investigations into the employee’s alleged misconduct, which did not result in any discipline, and which consisted of only “brief inquiries,” “were merely ‘trivial harms’ or ‘petty slights or minor annoyances’” (quoting Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006))). Third, the denial of Plaintiff’s request to work an earlier schedule for one week in August 2011 also is not an adverse employment action. The Second Circuit has found that even a denial of vacation time does not constitute an adverse employment action. See Terry v. Ashcroft, 336 F.3d 128, 147 (2d Cir. 2003) (finding denial of annual leave time was “legally insufficient to constitute an adverse employment action”); Batchelor v. City of New York, 12 F. Supp. 3d 458, 470-71 (E.D.N.Y. 2014) (Brodie, J.) (finding denial of vacation requests and holidays was not an adverse employment action); see also Gutierrez v. City of New York, 756 F. Supp. 2d 491, 508 (S.D.N.Y. 2010) (holding that defendants’ denials of days off were not adverse employment actions). Notably, Plaintiff could have requested leave for those days, in lieu of a modified schedule, but chose not to do so. (See 56.1 at ¶ 36; Singh Decl., Ex. V at 109:9-12). See Batchelor, 12 F. Supp. 3d at 470 (finding single vacation request denial without prohibition against the plaintiff taking any vacation is not an adverse employment action). Thus, under these Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 13 of 29 PageID #: 179 10 circumstances, Plaintiff cannot show that the denial of his schedule modification for one week was anything more than a mere inconvenience. See Galabya, 202 F.3d at 640 Finally, Plaintiff did not suffer an adverse employment action when his first choice for acting supervisor at his station was not reassigned to him. Notably, Plaintiff has admitted that, although he did not receive his first choice for an acting supervisor, Defendants assigned his second choice as the acting supervisor at his station. (56.1 at ¶¶ 40-41; Singh Decl., Ex. U at 107:24-108:5, 109:15-18). Simply, the assignment of subordinates had no effect on the terms and conditions of Plaintiff’s employment, cannot constitute an adverse employment action against Plaintiff. See Galabya, 202 F.3d at 640. The claim, thus, should be dismissed. Accordingly, the only challenged agency actions that could constitute adverse employment actions are the allegations that his higher level detail assignment was terminated earlier than scheduled and that he was not assigned to the vacancy at the Fresh Meadows Station. B. There is No Inference of Discriminatory Intent Plaintiff cannot make out a prima facie case of discrimination because he cannot establish that there is an inference of discriminatory intent in regards to any of the challenged agency actions, let alone as to those two actions that fall within the McDonnell Douglas test. First, there is an inference against discrimination “where the person who participated in the allegedly adverse decision is also a member of the same protected class.” Drummond, 400 F. Supp. 2d at 532; see also Williams v. Brooklyn Union Gas Co., 819 F. Supp. 214, 227, 231 (E.D.N.Y 1993) (Glasser, J.) (dismissing age discrimination claims where responsible management officials were older than or approximately the same age as the plaintiff). Here, Plaintiff identifies four management officials who allegedly discriminated and retaliated against him: Postmaster Roggenkamp, Paul Stremel, David Rudy, and Sunny Wong. Yet, two of these individuals are in the exact same classes as Plaintiff. Plaintiff, Postmaster Roggenkamp, and Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 14 of 29 PageID #: 180 11 David Rudy are all Caucasian, white, Catholic, American males over the age of 40. (See 56.1 at ¶¶ 1, 46, 48; Dkt. No. 1 at 3; Singh Decl., Ex. E at 1, Ex. F at 1). As a result, there is an inference against discrimination as to the challenged agency action involving Postmaster Roggenkamp and Mr. Rudy. See Drummond, 400 F. Supp. 2d at 532; Williams, 819 F. Supp. at 225. Plaintiff cannot point to any evidence that can overcome this inference. See Drummond, 400 F. Supp. 2d at 532 (recognizing that where there is an inference against discrimination, the plaintiff must overcome that inference to meet his burden). Similarly, although Mr. Stremel was not over the age of 40 during the relevant time period, Mr. Stremel, like Plaintiff, is a Caucasian, white, Catholic, American male. (See 56.1 at ¶¶ 1, 44; Dkt. No. 1 at 3; Singh Decl., Ex. D at 1). Thus, there is an inference against discrimination based on Plaintiff’s race, color, religion, gender, and national origin as to the challenged actions by Mr. Stremel. See Drummond, 400 F. Supp. 2d at 532. In addition, Sunny Wong, like Plaintiff, was over the age of 40 during the relevant time period. (56.1 at ¶¶ 1, 50; Dkt. No. 1 at 3; Singh Decl, Ex. F at 1). Thus, there is an inference against age discrimination for the challenged agency actions by Mr. Wong. See Williams, 819 F. Supp. at 225. Second, stray remarks do not establish employment discrimination. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001). Without “a clearly demonstrated nexus to an adverse employment action, stray workplace remarks are insufficient to defeat a summary judgment motion.” Almonord v. Kingsbrook Jewish Med. Ctr., No. 04-CV-4071, 2007 WL 2324961, at *9 (E.D.N.Y. Aug. 10, 2007) (Garaufis, J.) (citations omitted). Here, Plaintiff cannot point to a single instance of a derogatory comment involving his race, gender, age, ethnicity, religion, or national origin. Rather, Plaintiff contends that he was subjected to embarrassment in staff meetings when he was questioned about his station’s goals and Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 15 of 29 PageID #: 181 12 performance and he believe he heard Postmaster Roggenkamp refer to his work as “crap.” (56.1 at ¶¶ 7-16; Singh Decl., Ex. D at pp. 2-3, Ex. E at 2, Ex. U at 44:7-18, 45:5-47:8, 47:15-25, 49:8- 17, 49:24-50:15, 50:21-23, 51:9-52:23, 54:7-15). This simply does not infer discriminatory intent. See Tepperwien, 663 F.3d at 568. Nor are there any “other indicia of discrimination” to meet Plaintiff’s burden of showing that there is an inference of discriminatory intent. See Abdu- Brisson, 239 F.3d at 468 (finding that stray remarks coupled with “other indicia of discrimination” may meet the plaintiff’s burden of raising an inference of discriminatory intent). Third, Plaintiff was not treated differently from “similarly situated” individuals outside of his protected classes. See, e.g., Burdine, 450 U.S. at 258; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63-64 (2d Cir. 1997); cf. Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (“A plaintiff may raise . . . an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside of his protected group.”). To be ‘similarly situated,’ the individuals with whom [the plaintiff] attempts to compare [himself] must be similarly situated in all material aspects.” Shumway, 118 F.3d at 64. This requires a showing that the alleged comparators were subjected to the same workplace performance and discipline standards and engaged in conduct similar to the plaintiff. Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999). Plaintiff appears to allege that “similarly situated” individuals, outside of his protected classes, received different treatment when Defendants assigned Robert Botman, on a non- competitive basis, to the vacancy of Manager Customer Services at the Fresh Meadows Station, in lieu of granting that position to Plaintiff on a competitive basis. However, Plaintiff applied on a competitive basis, pursuant to the EL-312, for the vacancy at the Fresh Meadows Station, which was a pay level of EAS-21. (56.1 at ¶ 18; Singh Decl., Exs. G at 7, I, J, T). At the time of Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 16 of 29 PageID #: 182 13 his application, Plaintiff was a Manager of Customer Services at a pay level of EAS-20, temporarily assigned to a EAS-22 level station. (56.1 at ¶¶ 2, 5, 18; Singh Decl, Exs. A, B, G at 7, J). In contrast, Mr. Botman was a Manager of Customer Services at a pay level of EAS-22 and sought a downgrade pursuant to Section 743.11 of the USPS manual, the EL-312, to a pay level of EAS-21. (56.1 at ¶ 27; Singh Decl., Exs. G at 7, L, M, T). The selection process for the Fresh Meadows Station position was materially different for Plaintiff than it was Mr. Botman: Plaintiff was required to compete for that position; whereas Mr. Botman could, pursuant to § 743.11 of EL-312, request the position on a noncompetitive basis.3 (56.1 at ¶¶ 27-28; Singh Decl., Exs. G at 7, L, M, N, T); see Shumway, 118 F.3d at 64. Plaintiff also appears to claim disparate treatment because Mr. Wong, who was not Plaintiff’s supervisor during the relevant time period, permitted two employees, Ian Regisford and Wook Hong, to work an earlier schedule whereas Mr. Stremel, who was Plaintiff’s supervisor at the time, did not permit Plaintiff to work an earlier schedule for five days in August 2011. Mr. Regisford and Mr. Hong held positions materially different than Plaintiff’s in August 2011. In 2011, Mr. Regisford was a Supervisor of Customer Service, at a pay level of EAS-17, and was temporarily assigned to the position of Acting Manager, Customer Services at a pay level of EAS-20, under the supervision of Sunny Wong. (56.1 at ¶¶ 51-52; Singh Decl., Ex. G at 4, Ex. Q, Ex. CC). Similarly, in 2011, Mr. Hong was a Supervisor of Customer Service, at a pay level of EAS-17, and was temporarily assigned to the position of Acting Manager, Customer Services at a pay level of EAS-20, under the supervision of Sunny Wong. (56.1 at ¶¶ 55-56; Singh Decl., Ex. G at 4, Ex. R, Ex. DD). The situations of Mssrs. Regisford and Hong simply 3 In addition, Mr. Botman does not serve as a comparator for allegations of discrimination based on gender or age because Mr. Botman is a male who was over the age of 40 during the relevant time period. (See Singh Decl., Ex. L). Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 17 of 29 PageID #: 183 14 are not “sufficiently similar to [P]laintiff’s to support at least a minimal inference that the difference of treatment may be attributable to discrimination.”4 McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001). As a result, Plaintiff cannot meet his burden of establishing any circumstance giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802. C. Plaintiff Cannot Establish a Prima Facie Case of a Hostile Work Environment or Harassment Plaintiff also alleges that the challenged agency actions amounted to a hostile work environment and/or harassment. However, to meet his burden of establishing a prima facie claim, Plaintiff must show that: (1) the alleged harassment was “sufficiently severe or pervasive as to alter the conditions of” employment and “create an abusive working environment;” and (2) “a specific basis exists for imputing the objectionable conduct to the employer.” Alfano, 294 F.3d at 373 (internal quotation marks omitted). “The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his] employment were thereby altered.” Id. Isolated instances do not rise to the level of creating a hostile work environment, unless it is so “extraordinarily severe” that it actually transforms the plaintiff’s workplace. Id. Further, the conduct forming the basis of the hostile work environment must have occurred because of the plaintiff’s membership in a protected class. See id.; Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999) (“A plaintiff must also demonstrate that she was subjected to the hostility because of her membership in a protected class.”). 4 Neither Mr. Regisford nor Mr. Hong are proper comparators for allegations of gender discrimination as they are both males. (See 56.1 at ¶¶ 53, 57; Singh Decl., Ex. G at p. 4, Ex. Q, Ex. R). Mr. Hong also is not a proper comparator for allegations of age discrimination because he, like Plaintiff, was above the age of 40 during the relevant time period. (56.1 at ¶ 57; Singh Decl., Ex. R). Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 18 of 29 PageID #: 184 15 Here, Plaintiff does not allege anything more than isolated instances of alleged harassment. All of the conduct of which Plaintiff complains, even when taken together, does not rise the level of altering the terms and conditions of his employment. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (“[W]hether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”). Plaintiff points to absolutely no threats or derogatory comments made in any way regarding his race, color, gender, religion, national origin, or age. Notably, most of the challenged agency actions in this case arise out of the agency’s denial of Plaintiff’s requests for special treatment that would excuse Plaintiff from abiding by the USPS rules and regulations. Plaintiff wanted to be excused from required staff meetings because he was not prepared for and did not want to address any criticism of his station’s performance; Plaintiff wanted the USPS to circumvent the EL-312’s directive which required that noncompetitive placements be made before competitive placements; Plaintiff wanted the USPS to not consider allegations that other USPS employees felt harassed because Plaintiff had been a station manager assigned to supervise those employees; Plaintiff wanted the USPS to modify his regular schedule for the sole reason that Plaintiff wanted to leave early to work elsewhere, without having to use leave time; and Plaintiff wanted the USPS to assign his first choice as acting supervisor to his station. (See Dkt. No. 1). Indeed, in sum and substance, this case is about Plaintiff’s repeated requests that Defendants alter the terms and conditions of his employment to provide him more favorable treatment than other USPS employees and, having not received this special treatment, Plaintiff Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 19 of 29 PageID #: 185 16 now argues that Defendants’ failure to do so constitutes harassment. This simply turns well- established law on its head. Plaintiff’s claims, therefore, should be dismissed in their entirety. Furthermore, Plaintiff cannot point to a single basis to support his contention that the alleged hostile work environment occurred because of his protected status. See Brennan, 192 F.3d at 318. Accordingly, Plaintiff cannot sustain a claim of a hostile work environment or unlawful harassment. See Porter v. Donahoe, 962 F. Supp. 2d 491, 497 (E.D.N.Y. 2013) (Cogan, J.) (dismissing plaintiff’s claim of retaliatory hostile work environment where the alleged “incidents involved different managers and personnel[] and were discrete acts that were triggered initially by plaintiff taking action that was simply not allowed of an employee”). III. PLAINTIFF CANNOT MEET HIS BURDEN OF ESTABLISHING A PRIMA FACIE CASE OF RETALIATION Plaintiff cannot establish that Defendants retaliated against Plaintiff in violation of Title VII or the ADEA. For claims of retaliation, the McDonnell Douglas analysis also applies. See Bucalo, 691 F.3d at 129. Thus, Plaintiff bears the burden to prove a prima facie case of retaliation by showing that: (1) he participated in a protected activity; (2) Defendants knew of the protected activity; (3) Plaintiff was subjected to an adverse employment action; and (4) there is a “causal connection between the protected activity and the adverse employment action.”5 Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (internal quotation marks and citation omitted); see also Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000). On summary judgment, a court considers whether “‘proffered admissible evidence would be sufficient to 5 For the same reasons set forth above, supra II.A., under Second Circuit law, Plaintiff cannot establish that he suffered an adverse employment action for all of the challenged agency actions. See Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d Cir. 2007) (finding oral and written warnings to employee and supervisor’s questioning of employee were not “materially adverse” actions); Porter, 962 F. Supp. 2d at 498 (finding petty slights and annoyances and denials of administrative leave do not satisfy “adverse action” requirement for a retaliation claim). Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 20 of 29 PageID #: 186 17 permit a rational finder of fact to infer a retaliatory motive.’” Porter, 962 F. Supp. 2d at 497 (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). The “causal connection” requirement “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S. Ct. 2517, 2533 (2013); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009) (requiring but-for causation for a claim of retaliation under the ADEA); see generally Cassotto v. Donahoe, 600 F. App’x 4 (2d Cir. 2015) (affirming district court’s grant of a new trial in Title VII retaliation action against the Postmaster General and others based on the Supreme Court’s intervening but-for causation standard set forth in Nassar). A plaintiff may prove causation by either: (1) direct evidence, through evidence of the defendant’s retaliatory animus towards the plaintiff; or (2) indirect evidence, through circumstantial evidence of disparate treatment of other employees who engaged in similar conduct or through a showing that discriminatory treatment closely followed protected activity. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). If a plaintiff relies on temporal proximity as circumstantial evidence of causality, then the “temporal proximity must be very close.” Clark Cty., 532 U.S. at 273 (internal quotation marks and citations omitted). If the plaintiff establishes a prima facie case of retaliation, then the burden of proof shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged agency actions. See Treglia v. Manlius, 313 F.3d 713, 721 (2d Cir. 2002). Once this burden is met, then the plaintiff must proffer evidence that the articulated reason is mere pretext. See id. A. Plaintiff’s Protected Activity Prior to initiating EEO contact on the underlying administrative claim that preceded this action, Plaintiff had filed two formal complaints with the EEO. (56.1 at ¶ 70; Singh Decl., Ex. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 21 of 29 PageID #: 187 18 BB). First, on August 10, 2009, Plaintiff filed a formal EEO complaint, which was closed on August 31, 2009 (bearing EEO complaint identification number 4A-110-0110-09). (56.1 at ¶ 71; Singh Decl., Ex. BB). Second, on February 18, 2011, Plaintiff filed a formal EEO complaint (bearing EEO complaint identification number 4B-110-0013-11). (56.1 at ¶ 73; Singh Decl., Ex. BB). Plaintiff’s filing of the two formal EEO complaints constitute “protected activity” to satisfy the first prong of the prima facie standard. See Chan, 63 F. Supp. 3d at 295 (“Filing a formal complaint of discrimination with an administrative agency is protected activity.” (citing Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 65 (2d Cir. 1992))). B. There is No Causal Connection Between The Challenged Agency Actions and Any Protected Activity Plaintiff cannot show any causation between his prior EEO activity and the challenged agency actions, whether through direct or indirect evidence. First, there is no direct evidence of any agency retaliatory animus. Rather, there is direct evidence that contradicts any claim of retaliatory animus. On the same date that Mr. Stremel executed an affidavit as a witness to an EEO complaint filed by Plaintiff, he assigned Plaintiff to the temporary detail position at the Forest Hills Station, with a higher pay rate. (56.1 at ¶¶ 6, 75; Singh Decl., Ex. B, C). Thus, Defendants, knowing that Plaintiff had a pending EEO complaint, still assigned him to work at a temporary, higher-level detail. Second, Plaintiff cannot point to any indirect evidence of retaliatory animus. There was no disparate treatment of “similarly situated” individuals. The only alleged comparators, Mssrs. Botman, Regisford, and Hong, are not “similarly situated” as they each held positions with employment terms and conditions that materially differed from Plaintiff’s, as discussed above, supra II.B. Moreover, there is a complete lack of temporal proximity between Plaintiff’s filing of a formal EEO complaint in August 2009 and the complained of conduct beginning almost two Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 22 of 29 PageID #: 188 19 years later, in July 2011. See Clark Cty., 532 U.S. at 273-74 (finding twenty months suggests “no causality at all”). Similarly, the approximate four months between Plaintiff’s February 2011 EEO complaint and embarrassment in July 2011 is also insufficient, on its own to create the required nexus to support Plaintiff’s retaliation claims. See Dixon v. Int’l Fed. of Accountants, 416 F. App’x 107, 110 (2d Cir. 2011) (finding temporal proximity of four months, “standing alone, is insufficient”); Aiossa v. Bank of Am., N.A., No. 10-CV-1275, 2012 WL 4344183, at *5 (E.D.N.Y. Sept. 21, 2012) (Seybert, J.) (finding four month gap between complaint and termination of employment did not create a triable issue as to retaliatory intent); see also Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999) (“Claims of retaliation are routinely dismissed when as few as three months elapse between the protected EEO activity and the alleged act of retaliation.”); cf. Kwan v Andalex Group LLC, 737 F.3d 834, 845 (2d Cir. 2013) (finding three weeks sufficient temporal proximity to meet prima facie standard). Again, between Plaintiff’s February 2011 EEO complaint and the challenged agency actions beginning in July 2011, Defendants provided Plaintiff the opportunity to work at a temporary, higher-level detail. (56.1 at ¶ 5; Singh Decl., Ex. B). Accordingly, there is no evidence, direct or otherwise, that Defendants acted with retaliatory animus. IV. DEFENDANTS HAD LEGITIMATE REASONS FOR THE CHALLENGED AGENCY ACTIONS, WHICH PLAINTIFF CANNOT SHOW IS PRETEXT Even if Plaintiff could meet his burden to establish a prima facie case of discrimination or retaliation - which he cannot - Plaintiff’s claims still fail because Defendants have articulated legitimate reasons for the conduct of which Plaintiff complains. Moreover, Plaintiff cannot show that those legitimate reasons are pretextual. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 23 of 29 PageID #: 189 20 A. Defendants Acted Pursuant to Legitimate Reasons While Defendants bear the burden of showing a legitimate non-discriminatory reason for the challenged agency actions, Holcomb, 521 F.3d at 138, the burden is one of “production, not persuasion[,]” Reeves, 530 U.S. at 142. Evidence of a poor business judgment is simply “insufficient to establish a question of fact as to the credibility of the employer’s reasons.” Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (citation omitted). 1. The Staff Meetings in June 2011 Were Routinely Required for Stations Managers in Plaintiff’s Position In June 2011, district staff, with Postmaster Roggenkamp and area managers, held “drill down” teleconferences with certain “outlier” or “low-performing” stations to discuss productivity and action plans for improvement. (56.1 at ¶¶ 7-11; Singh Decl., Ex. D at pp. 2-3, Ex. E at 2, Ex. U at 44:7-18, 45:5-47:8, 47:15-24, 49:8-17, 50:21-23, 51:5-8). The goal of the meetings was to identify the source of deficiencies and ascertain how they may be addressed. (56.1 at ¶ 7; Singh Decl., Ex. D at pp. 2-3, Ex. At 2). Postmaster Roggenkamp also held Function 4 staff meetings in June 2011 with a couple other station managers to discuss performance, staffing issues, and expectations. (56.1 at ¶¶ 12, 15-16; Singh Decl., Ex. E at 2, Ex. U at 51:22-52:23, 54:7-15). Plaintiff claims that he overheard Postmaster Roggenkamp make a comment that Plaintiff interpreted as disparaging his handwritten work product. (56.1 at ¶¶ 15-16; Singh Decl., Ex. U at 54:7-15). Clearly, Defendants had a legitimate, non- discriminatory, and non-retaliatory reason for holding meetings to address business goals, progress, and deficiencies. Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 24 of 29 PageID #: 190 21 2. Defendants Properly Terminated Plaintiff’s Temporary Higher Level Detail Earlier than Scheduled Based on Expressed Concerns Regarding Plaintiff’s Decision-Making Abilities as Manager of Customer Services On July 8, 2011, Plaintiff met with Paul Stremel and Postmaster Roggenkamp, during which Postmaster Roggenkamp expressed concerns about Plaintiff’s performance while on temporary detail at the Forest Hills station. (56.1 at ¶¶ 19-26; Singh Decl., Ex. D at 3, Ex. E at pp. 3-4, Ex. U at 56:6-57:9, 58:12-59:16, 68:13-69:17). Contrary to Plaintiff’s allegations, Postmaster Roggenkamp terminated the temporary detail earlier than scheduled for reasons other than an allegedly “altered” transcript from a state criminal proceeding, during which Plaintiff entered a guilty plea. Notably, Postmaster Roggenkamp was concerned that Plaintiff had permitted a lower-level employee to represent USPS management, in Plaintiff’s place, at a National Association of Letter Carriers (“Union”) meeting, contrary to USPS policy. (56.1 at ¶ 20; Singh Decl., Ex. D at 3, Ex. E at 3, Ex. U at 56:6-57:9, 69:3-17). Postmaster Roggenkamp also was concerned that Plaintiff did not thoroughly investigate an allegation of assault by another employee. (56.1 at ¶ 21; Singh Decl., Ex. D at 3, Ex. E at 3, Ex. U at 58:12-59:16). Postmaster Roggenkamp further expressed concerns that Plaintiff indicated an intent to personally conduct surveillance of an employee alleged to be working another job while on extended sick leave from the USPS, contrary to USPS policies. (56.1 at ¶ 22; Singh Decl., Ex. D at 3, Ex. E at 3). In addition, Postmaster Roggenkamp expressed concerns that Plaintiff failed to follow a Local Memorandum of Understanding for posting holiday schedules. (56.1 at ¶¶ 23; Singh Decl., Ex. D at 3, Ex. E at 3). Finally, many letter carriers at the Forest Hills Station complained of a hostile work environment caused by Plaintiff’s management style, and the letter carriers’ Union representatives informed Postmaster Roggenkamp that there was a risk for workplace violence. (56.1 at ¶¶ 24-25; Singh Decl., Ex. D at 3, Ex. E at pp. 3-4, Ex. H). Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 25 of 29 PageID #: 191 22 These significant concerns with Plaintiff’s decisions while on temporary detail, and serious complaints by other employees at the station, are valid reasons for Defendants to have terminated the temporary detail assignment earlier than originally scheduled. See, e.g., Nieves v. Angelo, Gordon & Co., 341 F. App’x 676, 679 (2d Cir. 2009) (finding employee was terminated for legitimate, non-discriminatory reason when employee was insubordinate and failed to complete assigned tasks); Beshty v. General Motors, 144 F. App’x 196, 196 (2d Cir. 2005) (finding employee’s “confrontational management style and his failure to mentor and lead the group he was hired to supervise” provided a legitimate, non-discriminatory reason for the employee’s termination). Accordingly, because of the significant concerns regarding Plaintiff’s temporary position, Plaintiff’s claims are legally meritless and should be dismissed. 3. Defendants Followed Proper Procedure Under EL-312 to Fill a Vacancy on a Non-Competitive Basis Defendants properly filled the vacancy at the Fresh Meadows Station in 2011 according to applicable USPS rules and regulations. Significantly, pursuant to § 743.11 of EL-312, USPS may fill a position on a non-competitive basis when an employee voluntarily requests a lower level position in writing. (56.1 at ¶ 28; Singh Decl., Exs. G at 7, T). In this case, Mr. Botman made such a request in writing. (56.1 at ¶ 27; Singh Decl., Exs. G at 7, M). Further, USPS may select a non-competitive applicant “at any point before or during” a competitive process, or even “after a competitive package has been considered.” (Singh Decl., Ex. T at § 743.11). Section 743.12 of EL-312 further provides: “If a position is not filled through noncompetitive procedures, then it is filled competitively through employee application in response to a vacancy announcement.” (Singh Decl., Ex. T at § 743.12). Thus, USPS is to fill a vacancy on a competitive basis only if it cannot first be filled on a non-competitive basis. Accordingly, Defendants followed its own documented policy and acted pursuant to a legitimate business Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 26 of 29 PageID #: 192 23 purpose in filling a vacancy pursuant to EL-312 on a non-competitive basis. See Porter, 962 F. Supp. 2d at 499 (finding USPS established a legitimate business reason in requiring the plaintiff use annual leave instead of administrative leave or leave without pay by showing it followed its own documented policy). 4. Defendants Appropriately Followed up on Employee Complaints by Interviewing Employees After Plaintiff returned to his assigned station at the Middle Village Station, on August 3, 2011, Defendants conducted interviews at the Forest Hills Station regarding complaints of a hostile work environment created by management, including Plaintiff. (56.1 at ¶¶ 30-31; Singh Decl., Ex. E at 5; Ex. H). During the interviews, Mary McGovern and Jose Diaz asked employees “if they were experiencing issues of any kind with management.” (56.1 at ¶ 31; Singh Decl., Ex. H). The results revealed that the issues were being addressed, and Defendants took no action against Plaintiff as a result of the interviews. (56.1 at ¶ 32; Singh Decl., Ex. E at 5, Ex. H, Ex. U at 87:19-88:9). By interviewing the complaints, however, Defendants appropriately responded to their employees’ serious complaints of a hostile work environment. See Beshty, 144 F. App’x at 196; Joseph v. Owens & Minor Dist., Inc., 5 F. Supp. 3d 295, 313 (E.D.N.Y. 2014) (Brodie, J.) (finding customer complaints are legitimate and nondiscriminatory reasons to terminate an employee). 5. Defendants Denied Plaintiff’s Schedule Modification Request Based on the Needs of Plaintiff’s Assigned Station Defendants did not modify Plaintiff’s schedule because they had to consider the needs of the USPS at Plaintiff’s assigned station. (56.1 at ¶ 34; Singh Decl., Ex. D at 4, Ex. U at 93:25- 94:4). Indeed, Defendants considered the needs of the USPS in permitting Mr. Regisford and Mr. Hong to work a modified schedule: neither station to which Mr. Regisford and Mr. Hong were assigned had management employees available to perform early morning operations other Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 27 of 29 PageID #: 193 24 than Mr. Regisford and Mr. Hong. (See 56.1 at ¶¶ 54, 58; Singh Decl., Ex. G at 4). Defendants had a clearly legitimate, non-discriminatory, and non-retaliatory reason for not modifying Plaintiff’s schedule for five days based on the needs of the station. See, e.g., Johnson v. Cty of Naussau, No. 10-CV-6061, 2014 WL 4700025, at *15 (E.D.N.Y. Sept. 22, 2014) (Bianco, J.) (finding employer had legitimate, non-retaliatory reason for transferring plaintiff based, in part, on administrative reasons). 6. Defendants Assigned Plaintiff’s Second Choice, Not his First Choice, as an Acting Supervisor at his Station Based on the Needs of the USPS Plaintiff requested as his first choice Rudy Perez to be the Acting Supervisor under his supervision at the Middle Village Station. (56.1 at ¶ 40; Singh Decl., Ex. U at 109:15-18). Defendants, however, could not, and did not, assign Rudy Perez to that station due to concerns regarding overtime at Plaintiff’s station. (56.1 at ¶ 39; Singh Decl., Ex. D at p.4, Ex. U at 107:24-108:5). However, Defendants, thereafter, did assign Plaintiff’s second choice, Anna Palanska, as the Acting Supervisor. (56.1 at ¶ 41; Singh Decl., Ex. U at 112:3-9). Defendants had legitimate, business reasons for assigning staff in a way that met the needs of each particular station. See Johnson, 2014 WL 4700025 at *15. B. Plaintiff Cannot Demonstrate That Defendants’ Legitimate Reasons Were Pretextual To meet his burden under McDonnell Douglas that Defendants’ articulated legitimate reasons were pretextual for discrimination, Plaintiff must offer sufficient evidence that Defendants’ reasons are false and not simply “unfair or incorrect.” Renaud v. Fed. Express Corp., 10-CV-4261, 2012 WL 34089, at *8 (E.D.N.Y. Jan. 6, 2012) (Bloom, M.J.); see also Henry v. Daytop Vill., Inc., 42 F.3d 89, 94 n.1 (2d Cir. 1994) (“Evidence that the [employer’s proffered] reason is false . . . is central to establishing pretext under the third prong of the McDonnell Douglas-Burdine test.”). Showing disagreement with the employer’s decisions or Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 28 of 29 PageID #: 194 25 actions, or even that “the decision was objectively incorrect” does not, alone, demonstrate pretext for discrimination. Karla v. HSBC Bank USA, N.A., 567 F. Supp. 2d 385, 397 (E.D.N.Y. 2008) (Bianco, J.), aff’d sub nom., 360 F. App’x 214 (2d Cir. 2010). In addition, while “temporal proximity of events may give rise to an inference of retaliation . . ., such temporal proximity is insufficient to satisfy [plaintiff’s] burden to bring forward some evidence of pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). Here, Plaintiff can point to no evidence to support a contention that Defendants’ legitimate reasons were mere pretext. As such, Plaintiff’s claims of discrimination and retaliation under Title VII and the ADEA fail, and this Court should grant summary judgment in favor of Defendants. See El Sayed, 627 F.3d at 933 (affirming summary judgment in favor of employer where plaintiff offered no evidence of pretext). CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court grant summary judgment in their favor, dismiss Plaintiff’s Complaint and all claims asserted against them therein in their entirety, and grant Defendants any such other and further relief as this Court may deem proper and just. Dated: Brooklyn, New York May 6, 2016 Respectfully submitted, ROBERT L. CAPERS United States Attorney Eastern District of New York 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 rukhsanah.singh@usdoj.gov Case 1:15-cv-01118-LDH-ST Document 34-2 Filed 07/22/16 Page 29 of 29 PageID #: 195 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK RUDY J. MARINACCI, Plaintiff, v. UNITED STATES POSTAL SERVICE, PATRICK DONAHOE, and MEGAN BRENNAN, Defendants. Civil Action No.: 15-CV-1118 (DeArcy Hall, J.) (Tiscione, M.J.) DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS PURSUANT TO LOCAL CIVIL RULE 56.1 Pursuant to Rule 56.1 of the Local Civil Rules of the United States District Court for the Southern and Eastern Districts of New York, Defendants United States Postal Service (“USPS”), Patrick Donahoe, and Megan Brennan (collectively, “Defendants”), by their attorney, Robert L. Capers, United States Attorney for the Eastern District of New York, Rukhsanah L. Singh, Assistant United States Attorney, of counsel, respectfully submit this Statement of Undisputed Material Facts, with each fact individually numbered below, as follows: 1. Plaintiff Rudy J. Marinacci (“Marinacci”) identifies himself as a white, Caucasian, Catholic, American male, and was born in 1957. (Complaint dated March 4, 2015 at p. 3 (Dkt. No. 1)). 2. In 2011, Plaintiff was Manager of Customer Services at the Middle Village Station of the USPS, with a pay grade level designation of EAS-20. (Declaration of Assistant U.S. Attorney Rukhsanah L. Singh (“Singh Decl.”), Ex. A). 3. Effective on May 7, 2011, USPS, through a PS Form 1723, temporarily assigned employee Rudolph Perez, a City Carrier at the Middle Village Station, to the position of acting Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 1 of 11 PageID #: 196 2 Supervisor, Customer Services at the Middle Village Station. (Singh Decl., Ex. O). 4. The temporary assignment of Rudolph Perez was scheduled to end on July 1, 2011. (Singh Decl., Ex. O). 5. On May 20, 2011, USPS, through a PS Form 1723 signed by Paul Stremel, assigned Plaintiff to a temporary detail as Manager of Customer Services at the Forest Hills Station, with a start date of May 21, 2011 and end date of November 15, 2011, and with a pay grade level designated EAS-22. (Singh Decl., Ex. B). 6. Also on May 20, 2011, Paul Stremel completed and executed an affidavit in connection with a pending complaint Plaintiff filed with the Equal Employment Office (“EEO”), bearing case number 4B-110-0013-11. (Singh Decl., Ex. C). 7. From June 1 to June 22, 2011, as Acting Manager of Customer Services at the Forest Hills Station, Plaintiff participated in telephonic meetings, referred to as “drill down teleconferences” with other USPS employees, including Postmaster Edward Roggenkamp, to discuss the station’s performance, expectations, and action plans. (Singh Decl., Ex. D at pp. 2-3, Ex. E at p. 2, Ex. U at 44:7-18, 45:5-47:8). 8. During the staff teleconferences, Postmaster Roggenkamp or the area manager would ask Plaintiff to account for the employees whom he supervised as Manager of Customer Services at the Forest Hills Station. (Singh Decl., Ex. D at pp. 2-3, Ex. E at p. 2, Ex. U at 47:15- 24). 9. During the staff teleconferences, Postmaster Roggenkamp would ask about the performance of the Forest Hills Station. (Singh Decl., Ex. D at pp. 2-3, Ex. E at p. 2, Ex. U at 49:8-17). 10. Plaintiff would explain variances at the station, report steps he took to correct any Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 2 of 11 PageID #: 197 3 deficiencies, and discuss carrier and clerical operations. (Singh Decl., Ex. E at p. 2, Ex. U at 50:21-23, 51:5-8). 11. During the staff teleconferences, no one mentioned or referred to Plaintiff’s race, color, age, gender, religion, or national origin. (Singh Decl., Ex. E at pp. 2, 5-7, Ex. U at 49:24- 50:15, 51:9-21). 12. On June 15, 2011, Plaintiff attended a meeting, referred to as a “Function 4 staff meeting,” with Postmaster Roggenkamp and other Managers of Customer Services to review clerical staffing profiles for USPS operations. (Singh Decl., Ex. E at p. 2, Ex. U at 51:22-52:23). 13. One or two days before the Function 4 staff meeting, Plaintiff requested that Mr. Stremel, Manager of Customer Services Operations, have Plaintiff excused from the meeting because Plaintiff would not have data ready for the meeting in time. (Singh Decl., Ex. U at 53:4- 18). 14. Mr. Stremel did not excuse Plaintiff from the meeting because Postmaster Roggenkamp, not Mr. Stremel, had scheduled the meeting. (See Singh Decl., Ex. D at pp. 2-3, Ex. E at p. 2, Ex. U at 53:17-18). 15. At the Function 4 staff meeting, Plaintiff handwrote data requested by Postmaster Roggenkamp. (Singh Decl., Ex. U at 54:7-9). 16. Plaintiff believes Postmaster Roggenkamp referred to Plaintiff’s handwritten data as “crap” to Jennifer Leung, a Manager of Customer Services who also attended the staff meeting. (Singh Decl., Ex. U at 54:9-15). 17. Postmaster Roggenkamp did not refer to Plaintiff’s race, color, age, gender, religion, or national origin. (Singh Decl., Ex. E at pp. 2, 5-7, Ex. U at 54:16-55:4). 18. On June 19, 2011, Plaintiff applied for Job Posting number 60935405 as a Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 3 of 11 PageID #: 198 4 Manager Customer Services at the Fresh Meadows Station, which had a pay grade level of EAS- 21. (Singh Decl., Exs. G at p. 7, I, J). 19. On July 8, 2011, Plaintiff met with Mr. Stremel and Postmaster Roggenkamp, during which Postmaster Roggenkamp expressed concerns about Plaintiff’s performance while on detail at the Forest Hills station. (Singh Decl., Ex. D at p. 3, Ex. E at pp. 3-4, Ex. U at 68:13- 69:17). 20. At this meeting, Postmaster Roggenkamp expressed concerns that Plaintiff had permitted a lower-level employee to represent USPS management, in Plaintiff’s place, at a meeting with the National Association of Letter Carriers (the “Union”). (Singh Decl., Ex. D at p. 3, Ex. E at p. 3, Ex. U at 56:6-57:9, 69:3-17). 21. Similarly, Postmaster Roggenkamp expressed concerns that Plaintiff did not thoroughly investigate an allegation of assault by another USPS employee. (Singh Decl., Ex. D at p. 3, Ex. E at p. 3, Ex. U at 58:12-59:16). 22. Postmaster Roggenkamp also stated that he was concerned that Plaintiff had indicated he would personally conduct surveillance of a USPS employee alleged to be working another job while on extended sick leave from the USPS, contrary to USPS policy. (Singh Decl., Ex. D at p. 3, Ex. E at p. 3). 23. In addition, Postmaster Roggenkamp expressed concerns at this meeting that Plaintiff failed to follow a Local Memorandum of Understanding for posting holiday schedules. (Singh Decl., Ex. D at p. 3, Ex. E at p. 3). 24. Finally, Postmaster Roggenkamp expressed concerns that letter carriers at the Forest Hills Station had made complaints of a hostile work environment caused by management, which included Plaintiff. (Singh Decl., Ex. D at p. 3, Ex. E at pp. 3-4, Ex. H). Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 4 of 11 PageID #: 199 5 25. Postmaster Roggenkamp was concerned that Union representatives for the letter carriers at the Forest Hills Station had informed him that there was a risk for workplace violence. (Singh Decl., Ex. D at p. 3, Ex. E at pp. 3-4). 26. Based on these factors, on July 8, 2011, USPS returned Plaintiff to his regular assignment at Middle Village, with a pay grade level designated EAS-20. (Singh Decl., Ex. D at p. 3, Ex. E at pp. 3-4). 27. In July 2011, USPS reassigned Robert Botman, at his request, from Manager Customer Services at the Corona/Elmhurst Station, with a pay grade level of EAS-22, to Manager Customer Services at the Fresh Meadows Station, with a pay grade level of EAS-21, set forth in Job Posting number 60935405. (Singh Decl., Exs. G at p. 7, L, M, N). 28. USPS’s reassignment of Robert Botman to the Fresh Meadows Station was on a non-competitive basis pursuant to USPS Employment and Placement Handbook EL-312. (Singh Decl., Ex. G at p. 7, N, T). 29. USPS notified Plaintiff that he was not selected for the vacancy at the Fresh Meadows Station in Job Posting number 60935405. (Singh Decl., Ex. K). 30. At Postmaster Roggenkamp’s request, on August 3, 2011, Mary McGovern and Jose Diaz conducted interviews at the Forest Hills Station regarding complaints of a hostile work environment. (Singh Decl., Ex. E at p. 5, Ex. H). 31. Ms. McGovern and Mr. Diaz asked employees “if they were experiencing issues of any kind with management.” (Singh Decl., Ex. H). 32. After these employee interviews, the USPS did not taken any employment action against Plaintiff. (See Singh Decl., Ex. E at p. 5, Ex. U at 87:19-88:9). 33. Plaintiff requested that his schedule at the Middle Village Station be modified so Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 5 of 11 PageID #: 200 6 that he could begin and leave work earlier than his normal schedule for August 8 through August 12, 2011. (Singh Decl., Ex. D at p. 4, Ex. U at 89:16-90:5). 34. Based on the needs of the Middle Village Station, Mr. Stremel did not grant Plaintiff’s request to work a modified schedule. (Singh Decl., Ex. D at p. 4, Ex. U at 93:25- 94:4). 35. In denying Plaintiff’s request to work a modified schedule for five days in August 2011, Mr. Stremel did not consider Plaintiff’s age, race, color, gender, religion, or national origin. (Singh Decl., Ex. D at pp. 4-5, Ex. V at 108:17-109:8). 36. For the dates of August 8, 2011 through August 12, 2011, Plaintiff could have requested leave in lieu of a modified schedule. (Singh Decl., Ex. V at 109:9-12). 37. In approximately the end of July 2011, Plaintiff and Rudolph Perez agreed that Plaintiff would return to his letter carrier assignment from an acting supervisor detail. (Singh Decl., Ex. U at 105:4-11, 106:18-107:8). 38. At some point in August 2011, Mr. Stremel did not reassign Mr. Perez to be acting supervisor at the Middle Village Station. (Singh Decl., Ex. D at p. 4, Ex. U at 107:11- 108:5). 39. Mr. Stremel did not reassign Mr. Perez as acting supervisor at the Middle Village Station due to concerns of overtime at the Station and the needs of the Stations. (Singh Cert. Ex. D at p. 4, Ex. U at 107:24-108:5). 40. Plaintiff requested that Mr. Stremel assign Mr. Perez as the acting supervisor at Middle Village because Plaintiff felt Mr. Perez was the best acting supervisor. (Singh Decl., Ex. U at 109:15-18). 41. Mr. Stremel offered Anna Palanska as the acting supervisor at Middle Village, Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 6 of 11 PageID #: 201 7 which Plaintiff accepted as his second choice. (Singh Decl., Ex. U at 112:3-9). 42. On December 9, 2011, USPS, through a PS Form 1723 signed by Sean Duffy, reassigned Rudolph Perez to Acting Supervisor of the Jackson Heights Station, with a scheduled end date of June 30, 2012. (Singh Decl., Ex. P). 43. Mr. Stremel did not consider Plaintiff’s race, color, religion, gender, national origin, age, or EEO history when taking any employment actions that either directly or indirectly involved Plaintiff. (Singh Decl., Ex. D at pp. 4-5, Ex. V at 106:17-107:6, 107:16-19, 108:17- 109:8). 44. Mr. Stremel is a white, Caucasian, Roman Catholic, American male born in 1975. (Singh Decl., Ex. D at p. 1). 45. Postmaster Roggenkamp did not consider Plaintiff’s race, color, religion, national origin, age, or EEO history when taking any action involving Plaintiff. (Singh Decl., Ex. E at pp. 5-6). 46. Postmaster Roggenkamp is a white, Caucasian, Catholic, American male born in 1955. (Singh Decl., Ex. E at p. 1). 47. David Rudy did not consider Plaintiff’s race, color, religion, national origin, age, or EEO history when taking any action involving Plaintiff. (Singh Decl., Ex. F at pp. 3-4). 48. David Rudy is a white, Caucasian, Catholic, American male born in 1962. (Singh Decl., Ex. F at p. 1). 49. Sunny Wong did not consider Plaintiff’s race, color, religion, national origin, age, or EEO history when taking any action involving Plaintiff. (Singh Decl., Ex. G at p. 3). 50. Sunny Wong is a Chinese male born in 1959. (Singh Decl., Ex. G at p. 1). 51. In 2011, USPS employed Ian Regisford as a Supervisor of Customer Services, Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 7 of 11 PageID #: 202 8 with a pay grade level of EAS-17. (Singh Decl., Ex. Q). 52. Mr. Regisford was temporarily assigned to work under Sunny Wong as an Acting Manager of Customer Services at the Kew Gardens Station. (Singh Decl., Ex. G at p. 4, Ex. CC). 53. Mr. Regisford is an African-American male, born in 1982. (Singh Decl., Ex. G at p. 4, Q). 54. Sunny Wong permitted Mr. Regisford to work a modified schedule because his station did not have another employee assigned to it that could perform morning operations. (Singh Decl., Ex. G at p. 4). 55. In 2011, USPS employed Wook Hong as a Supervisor of Customer Services, with a pay grade level of EAS-17. (Singh Decl., Ex. R). 56. Mr. Hong was temporarily assigned to work under Sunny Wong as an Acting Manager of Customer Services at the Fresh Meadows Station. (Singh Decl., Ex. G at p. 4, Ex. DD). 57. Mr. Hong is an Asian American male, born in 1956. (Singh Decl., Ex. G at p. 4, Ex. R). 58. Sunny Wong permitted Mr. Hong to work a modified schedule because his station’s acting supervisor was not familiar with morning operations. (Singh Decl., Ex. G at p. 4). 59. On August 10, 2011, Plaintiff initiated contact with an EEO counselor, and the matter was given Agency Case No. 4B-110-0152-11. (Singh Decl., Ex. W). 60. In his pre-complaint, Plaintiff alleged discrimination on the basis of his race, color, religion, national origin, and age, and retaliation based on his prior EEO activity. (Singh Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 8 of 11 PageID #: 203 9 Decl., Ex. W). 61. Plaintiff filed a formal EEO administrative complaint in connection with Agency Case No. 4B-110-0152-11 on November 23, 2011. (Singh Decl., Ex. X). 62. On November 28, 2011, Plaintiff contacted the EEO, alleging discrimination and retaliation by Mr. Stremel regarding a failure to reassign an acting supervisor to work at Plaintiff’s station. (Singh Decl., Ex. Z). 63. On December 19, 2011, Plaintiff’s administrative complaint was accepted for investigation on the specific issues of discriminatory harassment based on race (White), color (White), religion (Roman Catholic), national origin (unspecified at the time), age (born in 1957), and retaliation (prior EEO activity). (Singh Decl., Ex. AA). 64. In his EEO complaint, Plaintiff alleged he was humiliated during a meeting on June 15, 2011 and during teleconferences from June 1, 2011 through June 22, 2011. (Singh Decl., Exs. X, AA). 65. In his EEO complaint, Plaintiff complained of his removal from the detail at the Forest Hills Station. (Singh Decl., Exs. X, AA). 66. In his EEO complaint, Plaintiff alleged that the USPS did not promote him to become the Manager of Customer Services at the Fresh Meadows Stations. (Singh Decl., Exs. X, AA). 67. In his EEO complaint, Plaintiff claimed that on August 3, 2011, USPS conducted a “witch hunt” regarding Plaintiff at the Forest Hills Station. (Singh Decl., Exs. X, AA). 68. In his EEO complaint, Plaintiff complained that, from August 8 to 12, 2011, USPS did not permit Plaintiff to work an earlier schedule so that he would be able to also work at another job. (Singh Decl., Exs. X, AA). Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 9 of 11 PageID #: 204 10 69. In his EEO complaint, Plaintiff complained that, on November 22, 2011, USPS notified Plaintiff that an acting supervisor, referring to Mr. Perez, would not be reassigned to Plaintiff’s station because the individual was needed as a carrier, although USPS subsequently offered that individual assignments as an acting supervisor at stations other than the one where Plaintiff was assigned. (Singh Decl., Exs. Z, AA). 70. Prior to the EEO complaint that formed the basis of the allegations asserted in this action, Plaintiff had filed two formal EEO complaints during his employment with USPS on August 10, 2009 and February 18, 2011. (Singh Decl., Ex. BB). 71. On August 10, 2009, Plaintiff filed a formal EEO complaint, which was closed on August 31, 2009 (bearing EEO complaint identification number 4A-110-0110-09). (Singh Decl., Ex. BB). 72. Plaintiff identified Mr. Wong as an alleged responsible management official in his August 10, 2009 EEO complaint. (Singh Decl., Ex. BB). 73. On February 18, 2011, Plaintiff filed a formal EEO complaint (bearing EEO complaint identification number 4B-110-0013-11). (Singh Decl., Ex. BB). 74. In that EEO complaint, Plaintiff did not allege that Mr. Stremel was a responsible management official. (Singh Decl., Ex. BB). 75. However, Mr. Stremel was a witness and provided an affidavit dated May 20, 2011. (Singh Decl., Ex. C). Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 10 of 11 PageID #: 205 11 Dated: Brooklyn, New York May 6, 2016 Respectfully submitted, ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendants 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 rukhsanah.singh@usdoj.gov Case 1:15-cv-01118-LDH-ST Document 34-3 Filed 07/22/16 Page 11 of 11 PageID #: 206 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK RUDY J. MARINACCI, Plaintiff, v. UNITED STATES POSTAL SERVICE, PATRICK DONAHOE, and MEGAN BRENNAN, Defendants. Civil Action No.: 15-CV-1118 (DeArcy Hall, J.) (Tiscione, M.J.) DEFENDANTS’ STATEMENT OF COMPLIANCE WITH LOCAL CIVIL RULE 7.2 Pursuant to Local Civil Rule 7.2 of the Local Rules of the United States District Court for the Eastern District of New York, Defendants United States Postal Service (“USPS”), Patrick Donahoe, and Megan Brennan (collectively, “Defendants”) are providing to Plaintiff Pro Se RUDY J. MARINACCI the attached printed copy of decisions cited in the Memorandum of Law in Support of Defendants’ Motion for Summary Judgment that are unreported or reported exclusively on computerized databases: • Aiossa v. Bank of Am., N.A., No. 10-CV-1275, 2012 WL 4344183 (E.D.N.Y. Sept. 21, 2012) (Seybert, J.); • Almonord v. Kingsbrook Jewish Med. Ctr., No. 04-CV-4071, 2007 WL 2324961 (E.D.N.Y. Aug. 10, 2007) (Garaufis, J.); • Johnson v. Cty of Naussau, No. 10-CV-6061, 2014 WL 4700025 (E.D.N.Y. Sept. 22, 2014) (Bianco, J.); and • Renaud v. Fed. Express Corp., 10-CV-4261, 2012 WL 34089 (E.D.N.Y. Jan. 6, 2012) (Bloom, M.J.). Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 1 of 47 PageID #: 207 2 Dated: Brooklyn, New York May 6, 2016 ROBERT L. CAPERS United States Attorney Eastern District of New York Attorney for Defendants 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 By: s/Rukhsanah L. Singh RUKHSANAH L. SINGH Assistant United States Attorney (718) 254-6498 TO: [via Federal Express] Rudy J. Marinacci Plaintiff Pro Se 67-03 Bell Boulevard Flushing, New York 11364 Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 2 of 47 PageID #: 208 Aiossa v. Bank of America, N.A., Not Reported in F.Supp.2d (2012) 2012 WL 4344183 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 4344183 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Providence AIOSSA, Plaintiff, v. BANK OF AMERICA, N.A., John Frazza, and Sue Cole, Defendants. No. 10-CV-1275 (JS)(ETB). | Sept. 21, 2012. Attorneys and Law Firms Tracey Lyn Brown, Esq., Derek Sells, Esq., The Cochran Firm, New York, NY, for Plaintiff. Caroline F. Turcotte, Esq., Siobhan M Sweeney, Esq., Edwards Wildman Palmer LLP, Boston, MA, Deborah Michelle Zawadzki, Esq., Jonathan B. Bruno, Esq., Kaufman, Borgeest & Ryan LLP, New York, NY, for Defendants. MEMORANDUM & ORDER SEYBERT, District Judge. *1 Plaintiff Providence Aiossa sued Defendants Bank of America, N.A. (“BoA”), John Frazza, and Sue Cole (collectively, “Defendants”) for employment discrimination, retaliation, and breach of contract. Pending before the Court is Defendants' motion for summary judgment (Docket Entry 58). For the following reasons, this motion is GRANTED. BACKGROUND The Court will describe any relevant factual disputes in the discussion section below. First, though, it provides some brief background on this case. According to Plaintiff, she was one of BoA's top-producing mortgage loan officers in the Long Island area. In January 2007, Plaintiff complained to Defendant Cole that Cole's treatment of Plaintiff's boss, Keith Cook, was racially discriminatory (Cook is black). Shortly after, Plaintiff was effectively transferred from the Long Island market to the Manhattan market. And, in July 2007, BoA began a series of investigations into the propriety of Plaintiff's loan-origination practices. Although all of these investigations ended without a finding of misconduct, Plaintiff was fired in 2008. DISCUSSION Plaintiff asserts discrimination, retaliation, and aiding and abetting claims under both the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). She also asserts a breach of contract claim arising out of Defendants' alleged failure to pay her all of the compensation to which she was entitled. I. Legal Standard Summary judgment is only appropriate where the moving party can demonstrate that there is “no genuine dispute as to any material fact” and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers “the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir.2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.1997); FED. R. CIV. P. 56(c). “In assessing the record to determine whether there is a genuine issue to be tried ... the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)). Once that burden is met, the non-moving party must “come forward with specific facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.1998), to demonstrate that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Mere conclusory allegations or denials will not suffice.” Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). And “unsupported allegations do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). II. Analysis Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 3 of 47 PageID #: 209 Aiossa v. Bank of America, N.A., Not Reported in F.Supp.2d (2012) 2012 WL 4344183 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 The Court considers Plaintiff's age discrimination, retaliation, aiding and abetting, and contract claims in order. A. Age Discrimination Defendants are entitled to summary judgment on Plaintiff's age discrimination claims. Age discrimination claims under the NYSHRL and NYCHRL are analyzed using the familiar McDonnell Douglas burden-shifting framework. E.g., Colon v. Trump Int'l Hotel & Tower, No. 10-CV-4794, 2011 WL 6092299, at *4 (E.D.N.Y. Dec. 7, 2011). At the first step, Plaintiff has the burden of establishing a prima facie case of discrimination by showing that “(1) she was within the protected age group; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.” Id. (citing Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 107 (2d Cir.2010)). If Plaintiff satisfies her prima facie burden, then the burden shifts to Defendants “to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Id. If they do so, the Plaintiff can nevertheless proceed to trial if she has evidence that Defendants' stated reasons for their actions were pretextual and that Plaintiff's age was the true reason for their decision. 1 Id. Here, Plaintiff has failed to establish a prima facie case of age discrimination because she hasn't shown that the relevant adverse employment actions occurred under circumstances giving rise to an inference of discrimination. 2 Plaintiff was transferred in January 2007 and fired in 2008. Additionally, in her view, she was subjected to a series of sham investigations beginning in July 2007. But the only evidence Plaintiff can point to in support of an inference of discrimination is: (1) a 2005 statement from Frazza to Cook that Cook should find “new blood” for his team (Pl.Opp.2); (2) BoA's decision in early 2006 to hire a younger employee for a position to which Plaintiff was not promoted (id. at 2; Pl. 56.1 Cntr-Stmt. ¶ 36); and (3) a statement from Plaintiff's former manager that Frazza once said that it would be cheaper to have three loan officers doing the job of one top producer (id. ¶ 46). The first two items are too far removed in time to raise an inference of discrimination surrounding the alleged adverse actions. See, e.g., Grant v. Roche Diagnostics Corp., No. 09-CV-1540, 2011 WL 3040913, at *7 (E.D.N.Y. July 20, 2011) (statement in fall 2006 was not relevant to discriminatory intent behind February 2008 firing); see also Smith v. Revival Home Health Care, Inc., No. 97-CV-4415, 2000 WL 335747, at *4 (E.D.N.Y. Mar. 28, 2000) (“Statements made long before and not in the context of the adverse action cannot support a claim of discriminatory motive for that action.”). The third item is inadmissible hearsay, FED.R.EVID. 801; FED. R. CIV. P. 56(c)(2), and even if it was admissible, it is not probative of any discriminatory intent, cf. Khan v. HIP Centralized Laboratory Services, Inc., 03-CV-2411, 2006 WL 842916, at *7 (E.D.N.Y. Mar. 27, 2006) (“To the extent that his comments were about seniority, rather than age, animus toward seniority does not create an inference of discrimination.”). B. Retaliation *3 Plaintiff also asserts that she was transferred, investigated, and fired in retaliation for her complaining that BoA's treatment of Cook was racially discriminatory. Defendants are entitled to summary judgment on Plaintiff's retaliation claims. Retaliation claims under the NYSHRL and the NYCHRL are also analyzed under the McDonnell Douglas framework. 3 Stavis v.. GFK Holding, Inc., 769 F.Supp.2d 330, 339 (S.D.N.Y.2011). “To establish a prima facie case of unlawful retaliation under the NYSHRL, ‘a plaintiff must prove that: (1) he participated in a legally protected activity: (2) his employer knew of the protected activity; (3) an adverse employment action ensued; and (4) a causal connection existed between the protected activity and the adverse employment action.’ “ Id. (quoting Bowles v. N.Y.C. Transit Auth., 285 F. App'x 812, 814 (2d Cir.2008)). Once Plaintiff has met her prima facie burden, the issue becomes whether Defendants can identify a legitimate, non-retaliatory reason for their actions. E.g., Dixon v. Int'l Federation of Accountants, 416 F. App'x 107, 110 (2d Cir.2011). If so, then Plaintiff must offer evidence that Defendants' stated reason is a pretext for retaliation. Id. Here, Plaintiff advances two theories of retaliation. First, she alleges that she complained about racial discrimination in January 2007 and was stripped of her Long Island banking centers shortly after. (Pl.Opp.18.) Second, she alleges that she complained to BoA's Advice and Counsel Unit in March 2008 about (a) age discrimination and (b) retaliation for her earlier complaint about race discrimination. (See id.) In her view, the March 2008 complaint led to further internal investigations of her loan-origination practices and her eventual firing. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 4 of 47 PageID #: 210 Aiossa v. Bank of America, N.A., Not Reported in F.Supp.2d (2012) 2012 WL 4344183 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 Plaintiff's first theory cannot survive summary judgment. Assuming for the moment that she can make out a prima facie case, see Vahos v. General Motors Corp., No. 06- CV-6783, 2008 WL 2439643, 5 (E.D.N.Y. Jun. 16, 2008), Defendants have proffered a legitimate, non-retaliatory reason-a reshuffling of bank personnel in the New York region-for their decision to reassign Plaintiff's Long Island territory. (See, e.g., Defs. 56.1 Stmt. ¶¶ 38-40.) Plaintiff attempts to rebut Defendants' explanation by interactions that she had with Cole: Plaintiff says that after she told Cole that (a) she objected to the racially discriminatory way Cook was being treated and (b) she would prefer to stay on Cook's team rather than transfer to David Moss' team, Cole replied that Plaintiff's Long Island banks would be taken away and that the only way to retain them would be to accept a transfer to the new Long Island team. (See Pl. Dep. 219- 20.) But on its face, this evidence reflects that Plaintiff had the option of remaining on Long Island. In light of BoA's corporate reorganization, this conversation falls far short of showing that Plaintiff's banking centers were taken from her in retaliation of her support for Cook. 4 See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000) (“The plaintiff must ‘produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendant were false, and that more likely than not [retaliation] was the real reason for the employment action.’ “ (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996) (alterations omitted))). 5 *4 Plaintiff's second theory cannot survive summary judgment either. She alleges that she complained to BoA's Advice and Counsel Unit in April 2008 about discrimination and retaliation (see, e.g., Aiossa Dep. 259-61) and that, as a result, she was subjected to further internal investigations and eventually fired (Pl.Opp.8, 10-11, 13). Assuming, again, that Plaintiff can make out a prima facie case, Defendants have proffered evidence of a legitimate, non-retaliatory reason for their actions: to wit, their continued misgivings concerning Plaintiff's role in generating fraudulent loans. In May 2008, the Suffolk County District Attorney's Office contacted BoA about an incident of possible identity theft in connection with a loan originated by Vincent Aiossa, Plaintiff's son and a member of her team. (Defs. 56.1 Stmt. ¶ 108.) This prompted an investigation of Plaintiff's loan pipeline (id. ¶¶ 109-111) that revealed a pattern of inconsistencies and misrepresentations related to loans connected to Plaintiff (see id . ¶ 121). According to Defendants, these red flags were the reasons Plaintiff was fired (along with Vincent and another son, who also worked on Plaintiff's team). (Id. ¶¶ 130, 132.) Plaintiff attempts to rebut this evidence with irrelevancies and speculation. Chiefly, she points to evidence that one of the investigators who examined Plaintiff's pipeline could not recall anything in his investigation that would have given BoA reason to lose trust or confidence in Plaintiff. (See Pl. Opp. 11.) But another examiner did remember finding inconsistencies and misrepresentations associated with loans in Plaintiff's pipeline. (See Alson Dep. 115.) These issues amounted to a concerning “pattern” (see Caslin Dep. 122-123 (discussing Alson's findings)) of “red flags” for potential fraud (Alson Dep. 51-52). And, regardless of whether Plaintiff was personally implicated in any fraudulent lending, these issues caused BoA to lose trust and confidence in Plaintiff's ability to manage her loan pipeline (see Rhine Dep. 48 (stating that BoA lost trust in Plaintiff by stopping short of accusing her of fraud)) or supervise the loan officers in her charge (see Cook Dep. 103; Rhine Dep. 69). The remaining material that Plaintiff cites in support of pretext serves her no better. She alleges that her termination was in violation of BoA's “progressive” disciplinary policy whereby employees are to be given a verbal warning and two written warnings before they are terminated. (Pl.Opp.20.) On its face, though, the disciplinary policy is clear that these steps are “guidelines” that are “not inflexible” and that managers have discretion in implementing them. (Pl.Ex. 25 at BANK006800 (“Use of the guidelines may vary with the circumstances.”).) Plaintiff also asserts that Frazza “told several people” that he wanted Plaintiff and her sons fired “[n]otwithstanding that no one suspected the Aiossas of wrongdoing.” (Pl.Opp.10.) The evidence in “support” of this assertion is anything but; the email (which was neither sent to or from Frazza) states simply that “although John [Frazza] and Advice and Cousnel believe that [Plaintiff] is involved they don't feel like they have enough specific evidence to terminate her at this point.” (Pl.Ex. 34.) Similarly, Plaintiff misquotes another document to make it seem as if Frazza “wanted to ‘pursue harsh action against the Aiossa's [sic].’ “ (Pl. 11 (misquoting Pl.Ex. 33 at BANK0953).) That document actually says that Frazza “is pursuing harsh actions” in the context of Vincent Aiossa's involvement with the loan that was being investigated by the Suffolk DA. (See Pl.Ex. 33.) Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 5 of 47 PageID #: 211 Aiossa v. Bank of America, N.A., Not Reported in F.Supp.2d (2012) 2012 WL 4344183 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 *5 The rest of Plaintiff's “pretext” evidence mainly concerns Frazza's threat about firing a top loan generator (i.e., Plaintiff) that happened before Plaintiff's April 2008 complaint (Pl.Opp.8) and baseless speculation that Cole and Frazza targeted Plaintiff for retaliation because she “continued to prosper” (id . 7). 6 Neither of these theories raises an issue of fact as to Defendants' retaliatory intent. See Boise v. N.Y. Univ., 201 F. App'x 796, 797 (2d Cir.2006) (mere speculation insufficient to show pretext). On this evidence, no jury could reasonably find that that retaliation was a motive for Defendants' actions. See Bennett v. Verizon Wireless, 326 F. App'x 9, 10 (2d Cir.2009); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005). At bottom, Plaintiff has only temporal links between her April 2008 complaint, the May 2008 investigation into her pipeline (which was prompted by an inquiry from law enforcement), and her firing at the end of August 2008. And temporal proximity, without more, is insufficient to show pretext. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010). C. Aiding and Abetting As Plaintiff has not established an underlying violation of the NYSHRL or the NYCHRL, her aiding and abetting claims against Cole and Frazza also fail. E.g., Sowemimo v. D.A.O.R. Sec., Inc., 43 F.Supp.2d 477, 490 (S.D.N.Y.1999) (“However, liability under the HRL and the NYCHRL must first be established as to the employer/principal before an individual may be considered an aider and abettor.”). D. Breach of Contract Plaintiff claims that BoA breached the 2008 CRE Retail Sales Plan by not paying commissions on loans that closed while she was on administrative leave. (Defs. 56.1 Stmt. ¶ 138.) There is no evidence that Plaintiff was denied the compensation she earned. Plaintiff was paid $15,000 per month while she was on leave (Defs. 56.1 Stmt. ¶ 139), and the loans that closed while she was away did not entitle her to anything beyond that amount (see Defs. 56.1 Stmt. Ex. C ¶ 11). This evidence is undisputed. Plaintiff's conclusory assertion that she was on pace to earn more in 2008 than she earned in 2007 does not raise a material issue of fact as to whether BoA deprived her of commissions during the leave period. CONCLUSION For the foregoing reasons, Defendants' summary judgment motion GRANTED. The Clerk of the Court is respectfully directed to mark this case CLOSED. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2012 WL 4344183 Footnotes 1 Under the federal anti-age discrimination law, plaintiffs must show that their age was the “but-for” motivation behind the adverse employment action. It is less clear whether plaintiffs suing under the NYSHRL must satisfy a “but-for” standard or the more lenient “motivating factor” standard, the latter of which permits “mixed motive” claims. Colon, 2011 WL 6092299, at *6; see also DiGirolamo v. MetLife Group, Inc., No. 11-CV-2719, 2012 WL 3660525, at *1 n. 3 (2d Cir. Aug. 28, 2012). Similarly, it is unclear what standard applies to NYCHRL age discrimination claims, although several district courts have suggested that these claims retain the “motivating factor” standard. See Colon, 2011 WL 6092299, at *6. 2 At the outset, the Court notes that any claim arising out of BoA's failure to promote Plaintiff in 2006 is time-barred because, although she argues otherwise, Plaintiff has not established that Defendants' conduct was part of a continuing violation. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir.2004); Washington v. Cnty. of Rockland, 373 F.3d 310, 317 (2d Cir.2004) (Sotomayor, J.). 3 Retaliation claims under the NYCHRL are broader than those under federal law or the NYSHRL with respect to what constitutes an adverse employment action. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir.2010). The difference is not material in this case. 4 Plaintiff also repeatedly refers to a 2008 statement by Frazza in which he implicitly threatened to fire Plaintiff (Pl.Opp.19, 21), but it's not clear what this evidence is offered to show. She speculates that it is because Frazza was frustrated that BoA's Advice and Counsel Unit rejected his attempt to issue Plaintiff a written warning following a July 2007 internal investigation (Pl.Opp.8), but this speculation is wholly unsupported. Moreover, Frazza's threat or his desire to see Plaintiff receive a written warning in July 2007 has no apparent connection to any age or retaliatory animus. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 6 of 47 PageID #: 212 Aiossa v. Bank of America, N.A., Not Reported in F.Supp.2d (2012) 2012 WL 4344183 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 5 To the extent Plaintiff claims that her January 2007 complaint caused Defendants to initiate an investigation into her loan pipeline in July 2007, this claim cannot survive summary judgment either. Assuming that this investigation was an adverse action under the NYSHRL or the broader NYCHRL, and assuming that Plaintiff met her prima facie burden, she may not rely on temporal proximity to rebut Defendants' stated reason for their action. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.2010) (per curiam) (“The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext.”). Here, Defendants proffered a legitimate reason for the investigation: Plaintiff appeared on an internal watch list in June 2006 because of fraud concerns with respect to two loans that she had originated. (See, e.g., Defs. 56.1 Stmt. ¶ 67.) 6 Plaintiff makes much of Cole's allegedly using a racist slur in reference to Cook to show that Defendants' actions toward her were motivated by retaliatory animus. (See Pl. Opp. 14.) The only evidence of this remark, though, is from testimony of another former BoA employee during a deposition in connection with Cook's case against the bank. (See Pl.Ex. 27 at 54.) This is inadmissible hearsay. Plaintiff argues that (a) it falls within the former testimony exception to Federal Rule of Evidence 804 and (b) Defendants waived any objection by not raising it when she cited the same evidence in an earlier motion to compel. Neither argument is persuasive. Plaintiff has not explained why the Court should treat the Plaintiff as “unavailable,” FED.R.EVID. 804(a), and the Court disagrees that Defendants' not objecting to this evidence during an earlier motion to compel acts as a waiver. On the latter point, the authority Plaintiff cites (Pl. Sur-Reply 2) holds that a party's failure to object to evidence at trial waives the party's right to appeal the evidentiary issue. Krieger v. Gold Bond Bldg. Prods., 863 F.2d 1091, 1096 (2d Cir.1988). Accordingly, the Court will not consider the employee's hearsay statement that she heard Cole use a racist slur. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 222 (2d Cir.2004); accord Butler v. Indianapolis Metro. Police Dep't, No. 07-CV-1103, 2009 WL 2092416, at *3 (S.D.Ind. July 13, 2009). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 7 of 47 PageID #: 213 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Distinguished by Winston v. Verizon Services Corp., S.D.N.Y., June 16, 2009 2007 WL 2324961 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Anne-Marie ALMONORD, Plaintiff, v. KINGSBROOK JEWISH MEDICAL CENTER, William Morse, Dawn Passero, John Does and Jane Does, Defendants. No. 04-CV-4071 (NGG)(RML). | Aug. 10, 2007. Attorneys and Law Firms Alan M. Compagnon, Weissman & Mintz, New York, NY, James M. Cooney, Piscataway, NJ, for Plaintiff. Amy Laura Ventry, Tara L. Eyer Daub, Nixon Peabody, LLP, Jericho, NY, Steven Mark Berlin, Martin Clearwater & Bell, LLP, New York, NY, for Defendants. MEMORANDUM AND ORDER GARAUFIS, District Judge. *1 Plaintiff Anne-Marie Almonord (“Plaintiff”) alleges that Defendants Kingsbrook Jewish Medical Center (“Kingsbrook”), William Morse (“Morse”), who is sued in his individual capacity and in his official capacity as a human resources representative for Kingsbrook, and Dawn Passero (“Passero”), who is sued in her individual capacity and in her official capacity as a manager for Kingsbrook, discriminated and retaliated against Plaintiff in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”); New York State's Human Rights Law, N.Y. Exec. Law §§ 290, et seq. (“NYSHRL”); and New York City's Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq. (“NYCHRL”). Kingsbrook and Passero have moved for summary judgment. Morse has moved to dismiss for lack of personal jurisdiction and, in the alternative, for summary judgment. For the reasons set forth below, the motions for summary judgment are GRANTED with respect to discrimination and GRANTED in part and DENIED in part with respect to retaliation. Morse's motion to dismiss is DENIED. I. Background Because Defendants move for summary judgment, this court must view the evidence in the light most favorable to Plaintiff and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of Plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995). Even in a fact-intensive employment discrimination case, however, the court will not accept as fact mere allegations lacking evidentiary support. Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir.2001). 1 A. Plaintiff's Employment History Plaintiff, who identifies herself as Black and of Haitian national origin, was first employed by Kingsbrook in 1989 as a part-time receptionist and clerk typist. (Defs. 56.1 St. ¶ 2; Pl. 56.1 Resp. ¶ 2.) Between 1995 and December 18, 2000, Plaintiff worked as a Patient Accounts Clerk in Kingsbrook's Business Office. (Defs. 56.1 St. ¶ 4; Pl. 56.1 Resp. ¶ 4.) Her responsibilities included medical billing and collections work for the Inpatient Billing Department. (Defs. 56.1 St. ¶ 4; Pl. 56.1 Resp. ¶ 4.) On December 18, 2000, Plaintiff was promoted to Supervisor of Outpatient Billing; she remained in that position until her termination in 2002. (Defs. 56.1 St. ¶ 5; Pl. 56.1 Resp. ¶ 5.) While working in that position, she reported to Passero, Kingsbrook's Manager of Outpatient Billing, who is Caucasian and was born in the United States. (Defs. 56.1 St. ¶¶ 7, 9; Pl. 56.1 Resp. ¶¶ 7, 9.) B. Plaintiff's and Passero's Relationship 1. 1995 to October 2000 Plaintiff and Passero first met in 1995 while working under different supervisors in Kingsbrook's Business Office. (Defs. 56.1 St. ¶ 19; Pl. 56.1 Resp. ¶ 19.) Plaintiff does not allege that Passero discriminated against her while they were co- workers. (Defs. 56.1 St. ¶¶ 25-26; Pl. 56.1 Resp. ¶¶ 25-26.) *2 Plaintiff and Passero offer different accounts of their relationship. Passero, who describes Plaintiff as a personal Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 8 of 47 PageID #: 214 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 friend, testified that the two of them would often discuss personal matters and eat lunch together and that she often drove Plaintiff to the bus stop on her way home from work. (Defs. 56.1 St. ¶¶ 20-23.) Passero further testified that she was one of the only Kingsbrook employees to attend Plaintiff's mother's wake in 1997. (Id. ¶ 24.) Plaintiff objects to Passero's characterization of the two of them as personal friends. (Pl. 56.1 Resp. ¶¶ 20, 22, 23, 25, 36; Pl. Dep. Tr. at 61-68.) Plaintiff claims that she considered Passero not a “friend,” but rather a co-worker toward whom she was “friendly,” just as she was friendly toward other co-workers. (Pl. 56.1 Resp. ¶¶ 20, 22, 23, 25, 36; Pl. Dep. Tr. at 61-68.) Plaintiff testified that Passero drove her halfway home only a “few times,” that they had lunch together only when with a larger group of co- workers, and that she and Passero discussed personal issues only “on occasion.” (Pl. Dep. Tr. at 62-63.) Plaintiff does not specifically recall Passero attending her mother's wake but does not deny that Passero was there. (Id.) 2. October 2000 to April 2002 In October 2000, after Irving Peters, who was Black, retired, Passero was promoted to Manager of Outpatient Billing. (Defs. 56.1 St. ¶¶ 33-34; Pl. 56.1 Resp. ¶¶ 33-34.) Shortly after her promotion, Passero began looking for a person to fill her previous position, Supervisor of Outpatient Billing. (Defs. 56.1 St. ¶ 35; Pl. 56.1 Resp. ¶ 35.) Passero claims she encouraged Plaintiff to apply for the position based on both their friendly relationship and Plaintiff's qualifications. (Passero Dep. Tr. at 58-59, 64; Pl. Dep. Tr. at 287.) Passero interviewed Plaintiff and Denise Alward, another Black employee of Kingsbrook, for the position. (Passero Aff. ¶ 14.) Passero testified that she did not think it was necessary to interview external candidates, because she and Plaintiff “could work well together,” were “very friendly,” and had a “nice relationship.” (Id.) On December 18, 2000, Passero promoted Plaintiff to Supervisor of Outpatient Billing. (Defs. 56.1 St. ¶ 41; Pl. 56.1 Resp. ¶ 41.) In this position, Plaintiff supervised fifteen employees. (Pl. Dep. Tr. at 69-73.) Her responsibilities included (1) implementing, explaining, and enforcing the hospital's employment policies, (2) organizing various billing and collection processes, and (3) preparing billing reports. (Defs. 56.1 St. ¶¶ 49-51; Pl. 56.1 Resp. ¶¶ 49-51.) From the time of Plaintiff's promotion until early 2002, Kingsbrook employed seventeen people in the Outpatient Billing Department. (Defs. 56.1 St. ¶¶ 46-47; Pl. 56.1 Resp. ¶¶ 46-47.) With the exception of Passero and one clerk, the remaining fifteen employees were Black, including one employee who was of Haitian descent. (Defs. 56.1 St. ¶¶ 47-48; Pl. 56.1 Resp. ¶¶ 47-48.) *3 Passero testified that Plaintiff had difficulty in her new position. (Defs. 56.1 St. ¶ 52.) Passero provides numerous examples of specific instances in which Plaintiff failed to perform her responsibilities and supervise her subordinates properly. 2 (Defs. 56.1 St. ¶¶ 54-56, 58, 61, 66, 88-89, 90-95.) Plaintiff, however, repeatedly and strenuously denies that she had any problems performing her new duties. (Pl. 56.1 Resp. ¶¶ 52-54, 58, 61, 68, 70, 109, 111, 120-24). In January 2001, Plaintiff and Sylvia Taylor, a clerk whom Plaintiff supervised, had an argument. (Defs. 56.1 St. ¶ 55.) Kingsbrook claims that when Taylor refused to follow an instruction given by Plaintiff, Plaintiff screamed at Taylor. (Id.) Plaintiff, however, denies Kingsbrook's allegation that she screamed at Taylor, and claims that Taylor became hostile toward her without provocation. (Pl. 56.1 Resp. ¶ 55.) Kingsbrook alleges that Plaintiff did not effectively control attendance problems occurring within the department. (Defs. 56.1 St. ¶ 56.) Plaintiff denies this. (Pl. 56.1 Resp. ¶ 56.) Kingsbrook alleges that Passero often counseled Plaintiff regarding how to meet the requirements of Plaintiff's new position. (Defs. 56.1 St. ¶ 57.) Plaintiff denies this. (Pl. Dep. Tr. at 158-60.) Kingsbrook also alleges that Plaintiff did not regularly submit various billing reports. (Defs. 56.1 St. ¶¶ 58-61.) Plaintiff denies this as well. (Pl. 56.1 Resp. ¶¶ 58-61.) On August 15, 2001, Passero sent Plaintiff an email that outlined Plaintiff's ongoing responsibilities. (Defs. 56.1 St. ¶ 63.) Passero claims that this email was written in order to inform Plaintiff that she was not performing her required duties. (Id.) Plaintiff claims that this was instead a “normal work-related ... email.” (Pl. 56.1 Resp. ¶¶ 63-65.) Passero testified that Plaintiff continued to neglect her responsibilities despite continually being reminded what was expected of her. (Defs. 56.1 St. ¶ 66; Passero Dep. Tr. at 105-06.) Plaintiff testified that in September or October 2001, Passero mocked her accent, specifically her pronunciation of the word “roof .” (Pl. Dep. Tr. at 138, 158.) Plaintiff also testified that Passero yelled at her and “became hostile.” (Pl. 56.1 Resp. ¶ 71.) Plaintiff testified that she told Passero she was returning to graduate school and that Passero responded, “You and that education, it must be a Haitian thing.” (Pl. Dep. Tr. at 136.) Plaintiff also asserted that Passero made other references to Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 9 of 47 PageID #: 215 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 her Haitian decent, although she could not identify any other such references. (Id. at 292-93.) In September or October 2001, Plaintiff spoke with Mohamed Hebela, Chief Financial Officer of Kingsbrook, regarding her difficulties with Passero. (Pl. Dep. Tr. at 192.) She complained that Passero yelled at her and mimicked her accent. (Id.) Plaintiff concedes that she did not inform Hebela that she thought Passero was discriminating against her based on her race or national origin. (Id.) *4 On December 11, 2001, at Kingsbrook's holiday party, Plaintiff and Passero had a disagreement the details of which are disputed. Passero claims that she had asked Plaintiff to attend the party from 3:00 p.m. to 4:00 p.m. and to then return to the office so Passero could attend the second half of the party. (Defs. 56.1 St. ¶¶ 73-74.) Passero claims that Plaintiff did not return until nearly 5:00 p.m. (Defs. 56.1 St. ¶ 76.) When Passero asked Plaintiff why she returned so late, Plaintiff responded, “You told me you don't like to party.” (Id.) Passero told Plaintiff that she was disappointed in her. (Defs. 56.1 St. ¶¶ 76-78.) Passero testified that Plaintiff then began to scream at her. (Id.) Plaintiff, however, contends that she and Passero attended the party together and that shortly after they arrived, Passero left because she did not like to socialize with the “staff.” (Pl. 56.1 Resp. ¶ 73.) Plaintiff testified that she remained at the party and socialized with her co-workers, that Passero then started to scream at her for socializing with the other employees, and that Plaintiff was so upset by this altercation that she called in sick the next day. (Id. ¶ 79.) On December 13, 2001, Plaintiff met with John Schmitt, Kingsbrook's Comptroller. (Pl. 56.1 Resp. ¶ 81.) In her Rule 56.1 Statement, Plaintiff claims, but cites no evidence showing, that she complained to Schmitt about Passero's discriminatory conduct, including mimicking her accent and consistently referring to her Haitian national origin, although Plaintiff admits she did not use the word “discrimination.” 3 (Pl. 56.1 Resp. ¶¶ 80-82.) At his deposition, Schmitt testified that he did not recall Plaintiff complaining about discriminatory conduct by Passero. (Schmitt Dep. Tr. at 13, 22-23.) He recalled only that she complained about an incident at the holiday party. (Id.) Passero testified that a few days after this incident, she and Plaintiff exchanged Christmas gifts and cards with personal messages and decided to put the incident behind them. (Defs. 56.1 St. ¶ 84; Passero Dep. Tr. at 149.) Plaintiff denies that this reconciliation occurred, but again fails to cite any supporting evidence. (Pl. 56.1 Resp. ¶ 84.) On March 26, 2002, Plaintiff attended a meeting in place of Passero, who was out sick. (Defs. 56.1 St. ¶ 90; Pl. 56.1 Resp. ¶ 90.) At this meeting, Plaintiff stated that some of the figures in a billing report prepared by the Outpatient Billing department were inaccurate. (Defs. 56.1 St. ¶ 95; Pl. 56.1 Resp. ¶ 95.) After Hebela asked Passero about the accuracy of the report, Passero asked Plaintiff for the basis for her belief that the figures were inaccurate. (Defs. 56.1 St. ¶¶ 98-100.) Passero claims that Plaintiff could not fully explain her reasoning and had actually relied on information provided to her by the Supervisor of Medical Records. (Defs. 56.1 St. ¶¶ 100-01.) Plaintiff denies this and claims that Passero did not understand the billing reports. 4 (Pl. 56. 1 Resp. ¶ 100.) Plaintiff also claims that after Passero was questioned by Hebela, Passero told Plaintiff to “keep her mouth shut.” (Id.) *5 In March 2002, Passero began the process of completing Plaintiff's 2001 performance evaluation. (Passero Dep. Tr. at 77-78 .) For the purposes of that evaluation, a rating of “2” means “exceeds standards,” a “1” means “meets standards,” and a “0” means “does not meet standards.” (Id. at 176-79.) Passero testified that she was “extremely conflicted” while completing Plaintiff's performance report. (Id. at 77-78.) She testified that although she felt Plaintiff deserved a rating of all “0's,” in a draft evaluation, which she never signed or submitted, she rated Plaintiff all “1's” due to their friendship. (Defs. 56.1 St. ¶¶ 108-10; Passero Aff. ¶ 66, Exs. M, N.) Plaintiff asserts that the reason Passero gave her all “1's” was she did in fact “meet standards.” 5 (Pl. 56.1 Resp. ¶ 109.) On April 9, 2002, Passero conferred with Hebela about Plaintiff's continued poor performance. (Defs. 56.1 St. ¶¶ 117-19.) Passero told Hebela that she had concluded that Plaintiff should not continue working as a supervisor. (Id.) After the meeting, Passero considered three options: (1) hire another supervisor to assist Plaintiff to perform the duties that Plaintiff could not perform on her own, (2) demote Plaintiff to a non-supervisory position, and (3) terminate Plaintiff's employment. (Id. ¶ 119 .) Passero consulted Nancy Cook, the supervisor of Inpatient Billing, about having Plaintiff return to her former position. (Id. ¶ 122.) Cook told Passero that demoting a supervisor would have a bad impact on employee morale. (Id.) Passero concluded that she would have to put her personal feelings aside and terminate Plaintiff. (Passero Aff. ¶ 70, Ex. N.) On April 10, 2002, Passero emailed Hebela to say that she would do so. (Id.) Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 10 of 47 PageID #: 216 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Passero contacted Morse, Kingsbrook's Manager of Employee Relations, to discuss the termination procedure. (Defs. 56.1 St. ¶ 127.) Despite Morse's initial concerns, he and Passero decided to give Plaintiff ninety days notice so that she could find a new job. (Id.) On April 12, 2002, Passero met with Plaintiff to inform her that she would be terminated as of July 12, 2002. (Defs. 56.1 St. ¶ 129; Pl. Dep. Tr. at 229-31; Passero Aff. ¶ 74, Ex. X .) Plaintiff testified that she believed Passero made the decision to terminate her employment after the March 26, 2002 meeting. (Pl. Dep. Tr. at 303.) Plaintiff now claims, however, that the true reasons for the termination were retaliation and discrimination. (Pl. 56.1 Resp. ¶ 105.) 3. After April 2002 On May 1, 2002, Plaintiff met with Morse to discuss her termination. (Pl. Dep. Tr. at 231-32; Morse Dep. Tr. at 35-39.) Morse confirmed that Plaintiff would be terminated on July 12, 2002 if she did not resign before that date. (Plaintiff's Meeting Notes dated 5/1/02 (Daub Decl. Ex. Y).) Morse suggested that they discuss the issue with Passero. (Morse Dep. Tr. at 39.) In her Declaration, Plaintiff testified that she informed Morse at the May 1, 2002 meeting that she believed her termination was based on illegal discrimination and retaliation. (Pl.Decl.¶ 11.) *6 On May 3, 2002, Passero, Plaintiff, and Morse met to discuss Plaintiff's termination. (Defs. 56.1 St. ¶ 137; Pl. 56.1 Resp. ¶ 137.) They disagree about what happened at the meeting. (Defs. 56.1 St. ¶¶ 138-46; Pl. 56.1 Resp. ¶¶ 138-46.) Morse concluded that due to the high level of hostility he observed between Passero and Plaintiff, it would not be feasible for them to work together any longer. (Morse Dep. Tr. at 46-47.) He claims that he told Plaintiff, at the May 3 meeting, that she would be terminated that day. (Passero Dep. Tr. at 217; Morse Dep. Tr. at 46-47; Pl. Dep. Tr. at 314.) He further claims that he expressed this decision before Plaintiff alleged that her termination was based on discrimination and retaliation. (Morse Dep. Tr. at 46-47.) According to Plaintiff, however, only after she said that her treatment was based on blatant discrimination did Morse say, “Fine, you're fired;” Plaintiff further claims that after she informed Morse that she was going to file a formal complaint, he repeated this phrase. (Pl. Dep. Tr. at 236-38; see also Pl. Decl. ¶ 12 .) C. Procedural History On February 13, 2003, Plaintiff filed a charge of unlawful discrimination and retaliation with the United States Equal Employment Opportunity Commission (“EEOC”). (Daub Decl. Ex. A.) On June 29, 2004, Plaintiff requested and received a right-to-sue letter. (Id. Ex. B.) On September 21, 2004, Plaintiff commenced this litigation. (Compl. at 1-11.) II. Legal Standards A. Summary Judgment Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law,” Fed.R.Civ.P. 56(c), i.e., “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir.2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “A fact is ‘material’ for these purposes if it might affect the outcome of the suit under the governing law. An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Holtz, 258 F.3d at 69 (citations and quotation marks omitted). Defendants, because they are the moving parties, bear the burden of establishing the absence of a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If they satisfy this burden, then Plaintiff, the non-moving party, bears the burden of “set[ting] forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). “The nonmovant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.” W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (citations and quotation marks omitted); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Rather, the nonmovant can create a genuine issue of material fact only by citing competent, admissible evidence. Sarno v. Douglas Elliman-Gibbons & Ives, 183 F.3d 155, 160 (2d Cir.1999). *7 In employment discrimination cases, district courts must be “especially chary in handing out summary judgment ... because in such cases the employer's intent is ordinarily at issue.” Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir.1996). “Employers are rarely so cooperative as to include a notation in the personnel file that the [adverse employment action] is for a reason expressly forbidden by law.” Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir.1999) (citations omitted). Direct evidence Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 11 of 47 PageID #: 217 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 of discrimination is therefore not required. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir.2000) (“an employer who discriminates against its employee is unlikely to leave a well-marked trail”). However, “the salutary purposes of summary judgment-avoiding protracted, expensive and harassing trials-apply no less to discrimination cases than to commercial or other areas of litigation.” Meiri v. Dacon, 759 F.2d 989, 998 (2d. Cir.1985). B. Employment Discrimination and Retaliation As a general matter, employment discrimination claims brought pursuant to the NYSHRL and NYCHRL are evaluated under the standards that apply to Title VII cases. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir.2000). Title VII prohibits racial discrimination by providing that it is unlawful “for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race[.]” 42 U.S.C. § 2000e-2(a)(1). Title VII prohibits retaliation by providing that it is unlawful “for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). III. Analysis A. Timeliness of Claims Defendants argue that Plaintiff's claims are time-barred. (Defs. Br. at 18.) Prior to commencing a lawsuit alleging discrimination or retaliation, a plaintiff must file a claim with the EEOC no later than 300 days after the alleged discriminatory or retaliatory action. 42 U.S.C. § 2000e-5(e) (1). It is well established that in cases involving termination, the 300-day period begins to run when the employee receives “definite notice of termination, not upon his discharge.” Miller v. IT & T, 755 F.2d 20, 23 (2d Cir.1985). Once notice is given, the fact of continued employment does not extend the period of limitations. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). The 300-day period beginning on April 12, 2002, the date Plaintiff first received notice of her termination, expired on February 6, 2003. Plaintiff filed her complaint with the EEOC on February 13, 2003. Plaintiff claims that she did not have definite notice of her termination on April 12, 2002 and understood the conversation she had with Passero on that date to indicate that she could remain employed by Kingsbrook if she worked hard between April 12 and July 12, 2002. (Pl. Dep. Tr. at 236.) In support, she cites Morse's testimony that he decided to discontinue the notice period after he witnessed the hostility between Plaintiff and Passero. (Morse Dep. Tr. at 66-69.) Plaintiff's own handwritten notes, however, created shortly after the April 12, 2002 meeting, contradict this assertion. (Daub Decl. Ex. X.) Plaintiff wrote that Passero told her “you have 3 months to resign” and “you're welcome to stay for the three months if you wish ... [but] you have to resign by July 12.” (Id.) Plaintiff's own admission therefore shows that although Morse did not decide to discontinue Plaintiff's notice period until May 3, 2002, the decision to terminate Plaintiff had in fact been made and communicated to Plaintiff on April 12, 2002. Although Plaintiff's claims regarding her April 12, 2002 termination are time-barred, the events of May 3, 2002, including Morse's decision to discontinue the notice period (the “discontinuance”), are not. B. Race and National Origin Discrimination *8 Even if Plaintiff's claims of discrimination regarding her termination were not time-barred, Plaintiff fails to make out a prima facie case of discrimination based on either her termination or the discontinuance. Claims of racial and national origin discrimination are governed by the burden- shifting analysis announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a nondiscriminatory reason for the adverse action. Farias v. Instructional Sys. Inc., 259 F.3d 91, 98 (2d Cir.2001). If the defense meets this burden, “the plaintiff must come forward with evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001). A plaintiff establishes a prima facie case by proving: (1) membership in a protected class; (2) satisfactory job performance; (3) termination from employment or other adverse employment action; and (4) the ultimate filling of the position with an individual who is not a member of the protected class, or circumstances giving rise to an inference of discrimination on the basis of plaintiff's membership in that class. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 12 of 47 PageID #: 218 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 Farias, 259 F.3d at 98. Plaintiff can satisfy the first of these elements based on her race. To satisfy the second element, that she satisfactorily performed her job, Plaintiff cites Hebela's letter of recommendation and Passero's unsigned draft performance evaluation. (Pl. 56.1 Resp. ¶¶ 52, 61, 119-24.) Kingsbrook presents substantial evidence that Plaintiff was having problems performing her duties in her supervisory position. (Defs. 56.1 St. ¶¶ 52, 55, 58-59, 61, 66, 67.) It is undisputed that Passero and Kingsbrook believed that Plaintiff deserved “0's” on her performance evaluation and that the draft contained negative comments indicating that Plaintiff did not “meet standards.” 6 (Passero Aff ¶ 66, Ex. M; Passero Dep Tr. at 178-79.) Further, Hebela testified that the letter of recommendation she wrote was not meant to constitute an evaluation of Plaintiff's performance. (Hebela Dep. Tr. at 75-76.) While Kingsbrook shows that Plaintiff did not properly perform her responsibilities, Plaintiff does not provide any evidence-not even a sworn affidavit-to refute this. (Defs. 56.1 St. ¶¶ 52, 55, 58-59, 61, 66, 67; Pl. 56.1 Resp. ¶¶ 52, 61, 119-24.) It is therefore far from clear that Plaintiff can prove that she satisfactorily performed her job. Nevertheless, in an abundance of caution, for the purpose of resolving this motion the court will assume that a reasonable juror could infer from Hebela's letter and Passero's performance evaluation that Plaintiff's job performance was satisfactory. To satisfy the third element of her prima facie claim, Plaintiff identifies two adverse actions: Passero's decision to terminate Plaintiff and Morse's decision to discontinue the notice period. It is undisputed that these actions were taken and that they constitute adverse employment actions. *9 Plaintiff cannot satisfy the fourth element-an inference of discrimination-with respect to either action. Plaintiff cites only two specific instances of alleged discriminatory conduct: (1) Passero mimicking Plaintiff's pronunciation of the word “roof” in September 2001 and (2) Passero's comment, “You and that education, it must be a Haitian thing.” (Pl. Dep. Tr. at 136, 138, 158.) Although Plaintiff alleges that Passero made references to her Haitian national origin on other occasions, she was unable to identify any other specific instances. (Pl. Dep. Tr. at 141, 157, 292-93.) There is no basis to infer that Morse's decision to discontinue the notice period was based at all on racial animus (as opposed to retaliatory animus, which I address below). In the absence of a clearly demonstrated nexus to an adverse employment action, stray workplace remarks are insufficient to defeat a summary judgment motion. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir.1998). These two isolated incidents, which occurred at least five months before Plaintiff's termination, are not sufficient to create an inference of discrimination. 7 A single incident of mimicking is insufficient to prove a prima facie case. Manessi v. New York City Dept. of Transp., No. 02-Civ.-359 (SAS), 2003 U.S. Dist. LEXIS 1921, at *23-24 (S.D.N.Y. Feb. 10, 2003); Watt v. New York Botanical Garden, No. 98-Civ.-1095 (BSJ), 2000 U.S. Dist. LEXIS 1611, at *22 (S.D.N.Y. Feb. 15, 2000) (holding that it would be an “inferential leap” to infer that a comment about an employee's accent suggests an underlying bias against persons of that national origin). Additionally, Passero's comment regarding Plaintiff's education is too ambiguous and remote in time from Plaintiff's termination to permit an inference that the termination was discriminatory. See Muse v. New York City Dep't of Hous. Pres., No. 96- CV-6221 (FB) (ASC), 2000 U.S. Dist. LEXIS 12207, at * 11 (E.D.N.Y. Aug. 22, 2000) (holding that plaintiff's allegation that supervisor called him a “damn Haitian” several months before his termination “is the kind of isolated and stray remark insufficient, without more, to raise an inference of discrimination”). There is a preference against finding racial bias when either (1) the person who fired a plaintiff is the same person who hired her, Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.1997), or (2) the plaintiff's replacement is a member of the same protected class as Plaintiff, Ticali v. Roman Catholic Archdiocese of Brooklyn, 41 F.Supp.2d 249, 262 (E.D.N.Y.1999). Both circumstances are present in this case. It is not disputed that Passero was the individual who decided to both promote and terminate Plaintiff, nor is it disputed that Plaintiff's replacement was also Black. (Passero Aff. ¶ 84.) Plaintiff has not shown sufficient evidence to state a prima facie claim of discrimination. Even if Plaintiff had stated a prima facie claim, Defendants present legitimate and nondiscriminatory reasons for their actions, which Plaintiff cannot prove are merely pretextual. The record is full of evidence that Plaintiff did not satisfactorily perform her job as supervisor. Between December 2000 and April 2002, Passero informed Plaintiff on ten separate occasions that she was not properly performing her duties. (Passero Aff. ¶¶ 25-51, Exs. B-F, J-M.) Plaintiff concedes this. (Pl. Dep. Tr. at 81-86, 102, 128-29, 160-63, 309-10.) She offers no proof that Passero's contemporaneous impressions were pretextual. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 13 of 47 PageID #: 219 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 *10 Plaintiff must prove “by a preponderance of the evidence, that the reason for the adverse employment decision was discrimination.” Mandell v. County of Suffolk, 316 F.3d 368, 381 (2d Cir.2000). She has not done so. Summary judgment is not appropriate when a plaintiff creates only weak issues of fact regarding an employer's legitimate reason and there is independent evidence that no discrimination occurred. Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). For all of these reasons, all of Plaintiff's claims based on discrimination are dismissed. C. Retaliation 1. Legal Standard The McDonnell Douglas burden-shifting framework applies to retaliation claims. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir.1998). To state a prima facie claim of retaliation, an employee must cite evidence sufficient to permit a rational trier of fact to find that (1) “he engaged in protected participation or opposition under Title VII,” (2) “the employer was aware of this activity,” (3) “the employer took adverse action against the plaintiff,” and (4) “a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.” Kessler v. Westchester County Dept. of Social Servs., 461 F.3d 199, 205-06 (2d Cir.2006). 2. Plaintiff's Termination Plaintiff cannot state a prima facie claim that her termination (as distinct from the discontinuance, which is addressed below) was retaliatory because she does not present any evidence suggesting that she engaged in protected activity prior to her termination. Protected activity refers to action taken to protest or oppose statutorily-prohibited discrimination. Cruz, 202 F.3d at 566. The Second Circuit requires that an employer could have reasonably understood that a plaintiff's opposition “was directed by conduct prohibited by Title VII.” Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998). Plaintiff testified that she complained about Passero two times prior to her termination. She testified that neither in her complaint to Hebela in October 2001 nor in her complaint to Schmitt in December 2001 did she mention that she believed Passero was discriminating against her. Complaining about mimicking or screaming after the holiday party cannot be seen as opposing action prohibited under Title VII, because Title VII is not a “general civility code.” Onacle v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Further, Passero, who made the decision to terminate Plaintiff, was not even aware that Plaintiff had complained to Hebela and Schmitt. (Passero Dep. Tr. at 149-53.) Plaintiff therefore cannot prove the first two elements of her prima facie claim. Plaintiff's termination is clearly an adverse action, however, which means that Plaintiff can satisfy the third element. Plaintiff cannot, however, prove a causal nexus between the alleged protected activity and her termination. Plaintiff testified that she believed Passero's decision to terminate her was based on her questioning the accuracy of the billing reports at the March 26, 2002 meeting. (Pl. Dep. Tr. at 303-04.) When the record demonstrates that a plaintiff was terminated because she accused her supervisor of mismanagement (rather than discrimination), there is no causal nexus linking the protected activity and the termination. Regis v. Metro. Jewish Geriatric Ctr., No. 97-CV-0906 (ILG), 2000 U.S. Dist. LEXIS 2215, at *25, 37 (E.D.N.Y. Jan. 11, 2000). Moreover, Plaintiff cannot prove causation through temporal proximity. A period of three months or more between the protected activity and the adverse action is insufficient, Pender v. Potter, No. 03-CV-1595 (NGG)(LB), 2005 U.S. Dist. LEXIS 8752, at *10 (E.D.N.Y. May 4, 2005) (citing Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir.1990)), and Plaintiff alleges that she engaged in “protected activity” on December 13, 2001, four months before she was terminated. 8 For all of these reasons, Plaintiff's claim that her termination, as expressed by Passero on April 12, 2002, was based on retaliation is dismissed. 3. The Discontinuance *11 Plaintiff can state a prima facie claim of retaliation against Kingsbrook and Morse regarding the decision to discontinue the notice period. 9 In her Declaration, Plaintiff claims that she informed Morse of Passero's alleged discrimination at the May 1, 2002 meeting, two days before Morse effected the discontinuance. 10 (Pl.Decl.¶ 11.) At her deposition, Plaintiff testified that at the May 3, 2002 meeting, she informed Morse of Passero's discrimination before Morse decided to discontinue the notice period. (Pl.Dep. Tr. 236-38.) Plaintiff can therefore prove the first element of her prima facie claim. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 14 of 47 PageID #: 220 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 Turning to the second element-that the employer was aware of the employee's protected activity-Defendants insist that Plaintiff did not allege discrimination or express an intent to file a formal complaint until after Morse told Plaintiff that he would discontinue the notice period. (Defs. 56.1 St. ¶¶ 145-46.) At the summary judgment stage, however, all legitimate disputes of material fact must be resolved in favor of the non-moving party. Anderson, 477 U.S. at 255. Therefore, this court finds that Plaintiff has asserted sufficient facts to prove Kingsbrook and Morse were aware of Plaintiff's protected activity, satisfying the second element of Plaintiff's prima facie case. Plaintiff can satisfy the third element of her prima facie claim because discontinuing the notice period deprived Plaintiff of more than two months of employment while she searched for a new job. Plaintiff can satisfy the fourth element of her prima facie claim because the temporal proximity of Plaintiff's protected activity to Morse's decision to discontinue the notice period is sufficient to permit a reasonable juror to infer a causal connection between the two. Defendants assert a nonretaliatory reason for the discontinuance. They claim that Morse's decision to discontinue the notice period was based on the hostility he observed between Plaintiff and Passero at the May 3, 2002 meeting. (Morse Dep. Tr. at 46-47.) According to Defendants, Morse concluded based on this hostility that it would not be prudent for Plaintiff and Passero to continue working together any longer. (Id.) Plaintiff bears the burden of showing that this reason was pretextual. According to Plaintiff, Morse's decision to discontinue the notice period was immediately preceded by Plaintiff's complaint of discrimination and her statement of intent to file a formal complaint. (Pl. Dep. Tr. at 236-38.) The close temporal proximity of Plaintiff's protected activity and the adverse action is sufficient to permit an inference that Morse's nonretaliatory reason was a pretext for retaliation. O'Neal v. State Univ. Of New York, No. 01-CV-7802 (DGT), 2006 U.S. Dist. LEXIS 81654, at *47 (E .D.N.Y. Nov. 8, 2006) (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir.1998), abrogated on other grounds in part, AMTRAK v. Morgan, 536 U.S. 101, 120, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (holding that the evidence suggested a “strong correlation between” plaintiff's complaints and her termination where complaints and termination occurred less than two months apart and nearly all of the evidence supporting defendant's asserted non-discriminatory reasons for the discharge were generated by two of the alleged harassers)). Summary judgment on Plaintiff's retaliation claim regarding the discontinuation of the notice period is therefore denied. D. Individual Liability *12 Plaintiff alleges that Passero and Morse are individually liable for violating the NYSHRL and the NYCHRL. 11 (Compl. at 1.) Morse argues that he cannot be individually liable under either statute. (Morse Br. at 13.) Under the NYSHRL, it is unlawful “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article or to attempt to do so.” N.Y. Exec. Law § 296(6). The NYCHRL uses virtually identical language, see N.Y. City Admin. Code § 8-107(6), and is subject to the same analysis as the NYSHRL. See McCoy v. City of New York, 131 F.Supp.2d 363, 375 (E.D.N.Y.2001) (applying the same standard to claims under Section 296(6) and Section 8-107(6)); Mohamed v. Marriott Int'l, Inc., 905 F.Supp. 141, 157 (S.D.N.Y.1995) (noting that the identical wording of the NYSHRL and NYCHRL evidence “clear intent” for parallel interpretation). A defendant may also be personally liable under Section 296(1) if he “is shown either to have an ownership interest or the ‘power to do more than carry out personnel decisions made by others.’ “ Gentile v. Town of Huntington, 288 F.Supp.2d 316, 321 (E.D.N.Y.2003) (quoting Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1160 (E.D.N.Y.2003) (citing Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984))). Individual liability under Section 296(1) is limited, however, to supervisors who themselves have the authority to “hire and fire” employees. Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.1995). Plaintiff has created an issue of material fact regarding Morse's individual liability under the NYSHRL and the NYCHRL. Morse was solely responsible for the decision to discontinue the notice period. Plaintiff's testimony that Morse immediately decided to discontinue the notice period after Plaintiff complained of discrimination and stated her intent to file a formal complaint is sufficient to permit an inference that Morse had actual power to make personnel decisions under Section 296(1) and that he was personally responsible for the prohibited action under Section 296(6) and Section 8-107(6). Plaintiff has therefore set forth sufficient evidence Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 15 of 47 PageID #: 221 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 to defeat summary judgment regarding Morse's individual liability under the NYSHRL and the NYCHRL. IV. Morse's Motion to Dismiss Morse moves to dismiss the complaint, with prejudice, under Fed.R.Civ.P. 12(b)(2), (4) and (5) for lack of personal jurisdiction and insufficiency of process and service. (Morse Br. at 1.) The applicable Federal Rule provides that- If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. *13 Fed.R.Civ.P. 4(m). “Even without a finding of good cause, pursuant to the 1993 amendments to Rule 4(m), the court has the authority to exercise its discretion to deny dismissal.” Hollomon v. City of New York, No. 04-CV-2964 (NG)(JMA), 2006 U .S. Dist. LEXIS 52424, at *10 (E.D.N.Y. July 31, 2006); see also Advisory Committee Notes to Fed.R.Civ.P. 4(m) (“The new subdivision ... authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown.”). Factors for the court to consider when deciding whether, absent good cause, to exercise its discretion to extend the 120-day period include- (1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's request for relief from the provision. Hollomon, at *11 (quoting Eastern Refractories Co. v. Forty Eight Insulations Inc., 187 F.R.D. 503, 506 (S.D.N.Y.1999)). The rationale for extending time is to ensure that potentially meritorious claims are adjudicated on the merits. AIG Managed Mkt. Neutral Fund v. Askin Capital Mgmt., L.P., 197 F.R.D. 104, 109-10 (S.D.N.Y.2000). The Second Circuit has clearly expressed its preference that disputes be resolved on the merits. Cody v. Mello, 59 F.3d 13, 15 (2d Cir.1995) (“Dismissal is a harsh remedy only to be utilized in extreme situations.”); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.1993) (noting the court's “oft-stated preference for resolving disputes on the merits”). Plaintiff filed this action on September 21, 2004. (Compl. at 11 .) Plaintiff did not serve Morse until May 24, 2005, approximately four months after the expiration of the 120-day period for service. (Berlin Decl. Ex. E.) Although Plaintiff has failed to provide an adequate reason for her untimely service, an analysis of the four factors identified above leads the court to conclude that Plaintiff should be afforded the opportunity to have her claims against Morse decided on the merits. The fact that a refiled claim would be untimely weighs against dismissal. 12 Hollomon, 2006 U.S. Dist. LEXIS 52424, at *12 (“A court should not refuse to extend the time of service simply so that the defendant can benefit from the time-bar.”). The second factor also weighs against dismissal because Morse is aware of the action. The third factor weighs in favor of dismissal because there is no evidence that Morse attempted to conceal the fact that service was not timely. The fourth factor weighs against dismissal because Morse does not identify any prejudice that he would suffer if the instant action is allowed to proceed. See AIG Managed Mkt. Neutral Fund, 197 F.R.D. at 111 (“If [defendant] is purporting to assert that not permitting it to take advantage of an expired statute of limitation is itself a form of prejudice, that contention is erroneous.”). Therefore, Morse's motion to dismiss is denied. *14 Passero, Kingsbrook, and Plaintiff have already engaged in extensive discovery. Because Morse was not timely served, he did not participate in this discovery. Although it is unclear what additional information could be uncovered, if Morse believes that additional discovery is appropriate, he should notify the court within ten days of receiving this order. The court will consider permitting Morse to take discovery during some limited, defined period. V. Conclusion For the reasons set forth above, Kingsbrook's, Passero's, and Morse's motions for summary judgment are GRANTED with respect to discrimination and GRANTED in part and Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 16 of 47 PageID #: 222 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 DENIED in part with respect to retaliation. Morse's motion to dismiss is DENIED. All Citations Not Reported in F.Supp.2d, 2007 WL 2324961 Footnotes 1 When responding to a motion for summary judgment, the non-moving party-in this case, Plaintiff-“may not rest upon ... mere allegations or denials[.]” Fed.R.Civ.P. 56(e). Instead, the non-moving party, “by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” Id. It follows that courts are prohibited from relying on mere allegations when deciding whether to grant summary judgment. “[U]nsupported allegations do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). 2 Examples of Plaintiff's poor supervision include failing to put notes in the files of late employees, as was required by Kingsbrook, and micro-managing her subordinates. (Passero Dep. Tr. at 88-89, 117-21.) 3 Although Plaintiff claims that she complained to Schmitt about Passero's discrimination, Paragraphs 80 and 81 of Plaintiff's 56.1 Response do not contain any citations to admissible evidence in the record, not even to a sworn affidavit. Further, in Paragraph 82, Plaintiff cites to her deposition transcript at pages 370-71. However, Plaintiff did not submit those pages of the transcript into evidence. Under Local Civil Rule 56.1(d), “[e]ach statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact ... must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).” Plaintiff's unsubstantiated assertions and uncited allegations do not suffice to create a genuine issue of material fact at the summary judgment stage. 4 Once again, Plaintiff cites to a section of her deposition transcript, page 227, that she has not submitted into evidence. (Id.) 5 In support of her claim that she fulfilled her responsibilities, Plaintiff cites a letter of recommendation submitted by Hebela in support of Plaintiff's application to graduate school and the draft 2001 performance evaluation that Passero prepared in March 2002 but never submitted. (Pl. 56.1 Resp. ¶ 52.) The letter of recommendation written by Hebela on October 21, 2001 was intended to support Plaintiff's application to return to school and not to constitute an evaluation of Plaintiff's job performance. (Hebela Dep. Tr. at 75-76.) It is undisputed that the performance review was an unsigned draft that contained many negative comments about Plaintiff's performance. (Passero Aff. Ex. I.) The evaluation states that “Anne- Marie needs to work on her follow-up,” “needs to work more with the staff,” and “needs to work on her cavalier attitude towards her job.” (Id.) Passero told Hebela that Plaintiff deserved all “0's” on her performance review. (Passero Aff. ¶ 66, Exs. M, N.) 6 Even if Defendants were incorrect about Plaintiff's performance, that error in judgment alone cannot prove a prima facie case in the absence of any proof of racial animus. See Walters v. Columbia Presbyterian Hosp., No. 89-Civ.-1326 (MBM), 1990 U.S. Dist. LEXIS 3813, at *5 (S.D.N.Y. Apr. 9, 1990), aff'd, 916 F.2d 709 (2d Cir.1990) (“an employer is allowed to misjudge the worth of its employees, so long as its evaluation is not based on a discriminatory purpose”). 7 Plaintiff does not assert a hostile work environment claim, and these two incidents are insufficient to prove such a claim. In order to prevail on a hostile work environment claim, a plaintiff must show (1) that the harassment was “sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment” and (2) “a specific basis for imputing the conduct creating the hostile work environment to the employer.” Feingold v. New York, 366 F.3d 138, 149-50 (2d Cir.2004) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)); Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002). Two comments during a seven-year working relationship do not constitute “a steady barrage of opprobrious racial comments.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997) (twelve racially offensive comments over twenty months may constitute a hostile work environment). 8 As noted in the previous section, Defendants proffer a legitimate reason (Plaintiff's poor performance) for Plaintiff's termination, which Plaintiff has not shown to be pretextual. 9 “A plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful ‘so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.’ “ Treglia v. Town of Manilus, 313 F.3d 713, 719 (2d Cir.2002) (quoting Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.1999)). Defendants have not produced any evidence to show that Plaintiff lacked a good faith belief that Defendants violated the law. 10 There is good reason to be skeptical of this claim. Plaintiff did not allege in her EEOC charge, Complaint, or deposition testimony that she mentioned Passero's alleged discrimination to Morse at the May 1, 2002 meeting. This fact was first alleged in Plaintiff's Declaration, submitted almost five years after the incident, which appears to contradict her deposition Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 17 of 47 PageID #: 223 Almonord v. Kingsbrook Jewish Medical Center, Not Reported in F.Supp.2d (2007) 2007 WL 2324961 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 testimony (Pl. Dep. Tr. at 234) and so may be rejected by the court on summary judgment. Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001); Hayes v. New York City Dept. of Corrs., 84 F.3d 614, 619 (2d Cir.1996) (“If a party could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”). In an abundance of caution, however, the court will assume that the facts are as Plaintiff claims. 11 It is well settled that “an individual defendant cannot be held personally liable under Title VII.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 n. 8 (2d Cir.2006); Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 195 n. 2 (2d Cir.2005); Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir.2004); Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.2003); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir.1995), abrogated on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Plaintiff concedes this point. (Pl. Br. at 8.) Although NYSHRL and NYCHRL allow for personal liability, violations are still analyzed under the same standards that apply in a Title VII claim. See Cruz 202 F.3d at 565 n. 1. None of Passero's action led to liability for Kingsbrook under Title VII. She cannot be personally liable under state or city law because Plaintiff has failed to prove that she violated either. 12 Plaintiff commenced this action on September 21, 2004, within the three-year period of limitation for her state and city law claims. See Forsyth v. Fed'n Empl. & Guidance Serv., 409 F.3d 565, 572 (2d Cir.2005). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 18 of 47 PageID #: 224 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 4700025 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Rodney JOHNSON, Plaintiff, v. COUNTY OF NASSAU, Nassau County Sheriff's Department, Acting Sheriff Michael J. Sposato, Deputy Attorney Elizabeth Loconsolo, Sergeant Joseph Kreutz, Lieutenant Barbara Gruntorad, Captain Anthony Zuaro, Captain Michael Golio, Corporal Patrick McDevitt, and Correction Officer Manny Dasilva, in Their Official and Individual Capacities, Defendants. No. 10-CV-06061 (JFB)(GRB). | Signed Sept. 22, 2014. Attorneys and Law Firms Frederick K. Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY, for Plaintiff. Andrew Kenneth Preston, Deanna Darlene Panico, and Michael Paul Siravo of Bee Ready Fishbein Hatter & Donovan LLP, Mineola, NY, for All defendants except DaSilva. Justin C. Tan and John Francis McKay, III of Bond Schoeneck & King, PLLC, Garden City, NY, for Defendant DaSilva. MEMORANDUM AND ORDER JOSEPH F. BIANCO, District Judge. *1 Plaintiff Rodney Johnson (“Johnson” or “plaintiff”) brings this civil rights action against the County of Nassau (the “County”), the Nassau County Sheriff's Department (“NCSD”), and individual defendants Acting Sheriff Michael J. Sposato (“Sposato”), Deputy Attorney Elizabeth Loconsolo (“Loconsolo”), Sergeant Joseph Kreutz (“Kreutz”), Lieutenant Barbara Gruntorad (“Gruntorad”), Captain Anthony Zuaro (“Zuaro”), Captain Michael Golio (“Golio”), Corporal Patrick McDevitt (“McDevitt”), and Correction Officer Manny DaSilva (“DaSilva”), in their official and individual capacities. The gravamen of the complaint is that plaintiff, a correction officer in the NCSD, was harassed constantly by his coworker DaSilva on account of plaintiff's race (plaintiff is African-American), that the other defendants (collectively, the “County defendants”) did not adequately address DaSilva's behavior, and that plaintiff was retaliated against for having complained about DaSilva's behavior. Plaintiff brings the following claims under federal and state law: (1) hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 et seq. (“Title VII”), 42 U.S.C. § 1981 (“Section 1981”), 42 U.S.C. § 1983 (“Section 1983”), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. (“NYSHRL”); (2) retaliation under Title VII, Section 1981, Section 1983, and the NYSHRL; (3) racial discrimination by a program receiving federal financial assistance under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. (“Title VI”); (4) conspiracy under 42 U.S.C. § 1985(3) (“Section 1985(3)”); (5) failure to intervene under 42 U.S.C. § 1986 (“Section 1986”); and (6) breach of contract. Before the Court are defendants' motions for summary judgment. For the following reasons, the motions are granted in part and denied in part. First, the Court grants summary judgment to the NCSD because the NCSD does not have a legal identity independent of the County. Second, the Court denies the summary judgment motions as to plaintiff's Title VII hostile work environment claim against the County because a reasonable jury could find not only that DaSilva subjected plaintiff to a racially abusive working environment, but also that the County was responsible for this abusive working environment by inadequately addressing plaintiff's complaints about DaSilva's conduct. Because there is a reasonable basis to impute the hostile work environment to the County, the Court also denies the County's motion for summary judgment as to the Section 1981 and Section 1983 hostile work environment claims. As for the individual defendants, the Court grants summary judgment for all individual defendants as to the hostile work environment claims because Title VII does not create individual liability; DaSilva's conduct was unrelated to his job duties, and thus did not constitute state action for purposes of Sections 1981 and 1983; and no other individual defendants had the requisite level of involvement in the creation of a hostile work environment so as to be held liable under Sections 1981 and 1983. Third, plaintiff premises his federal retaliation claims upon two adverse employment actions: (1) a transfer to a less favorable position within the NCSD, and (2) a formal reprimand. The Court concludes that plaintiff has Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 19 of 47 PageID #: 225 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 met his minimal burden to state a prima facie case of retaliation with respect to both adverse actions, and that defendant has come forward with legitimate, non-retaliatory reasons for those actions. The Court further concludes that plaintiff has raised a triable issue of fact as to whether his transfer was due to retaliation, where the County has explained that it transferred plaintiff to separate him from DaSilva but has not offered a reason for transferring DaSilva instead. As for the formal reprimand, plaintiff can point to specific evidence (the reaction of Gruntorad, his supervisor, to his complaint about his transfer, along with evidence that plaintiff had not been disciplined for similar conduct in the past) that the reprimand would not have occurred but for retaliatory animus. Accordingly, the Court denies summary judgment to the County with respect to the Title VII retaliation claim. However, the Court grants summary judgment for the County with respect to plaintiff's Section 1981 and Section 1983 retaliation claims because there is no evidence of a municipal custom or policy that caused the retaliation. In addition, the Court denies Gruntorad's motion for summary judgment as to the Section 1981 and Section 1983 retaliation claims based on evidence establishing her personal involvement in the claimed retaliation. The Court grants summary judgment to all other individual defendants with respect to these claims because there is no evidence that any other individual defendant participated in the alleged retaliation. Fourth, the Court grants summary judgment to all defendants as to plaintiff's Title VI claim due to an absence of evidence showing that the County or NCSD received federal funding. Fifth, with regard to the Section 1985(3) and Section 1986 claims, the Court grants summary judgment to all defendants on the basis of the intracorporate conspiracy doctrine. Sixth, the Court dismisses plaintiff's NYSHRL claims against the County and all individual defendants except DaSilva based upon plaintiff's failure to file a notice of claim. Because there is evidence that DaSilva acted outside the scope of his employment in creating a hostile work environment toward plaintiff, no notice of claim was required for the NYSHRL claims against him to proceed, there is sufficient evidence from which a reasonable jury could hold him liable individually under the NYSHRL, and the Court denies his motion for summary judgment as to these claims. Seventh, and finally, the Court grants summary judgment to all defendants as to plaintiff's breach of contract claim because, under New York law, an employment handbook's anti-discrimination and anti-harassment policies may not serve as the basis for a breach of contract claim. I. BACKGROUND A. Facts *2 The following facts are taken from the parties' depositions, declarations, exhibits, and respective Local Rule 56.1 statements of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to the nonmoving party. See, e.g., Capobianco v. City of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2005). Unless otherwise noted, where a party's Rule 56.1 statement is cited, that fact is undisputed, or the opposing party has not pointed to any evidence in the record to contradict it. 1 Plaintiff is an African-American male and has worked as a Correction Officer for the NCSD since August 1993. (County 56.1 ¶¶ 1-2; DaSilva 56.1 ¶ 1. 2 ) For the first twelve years of his career, plaintiff was assigned to the NCSD's Security Unit. (County 56.1 ¶ 3; DaSilva 56.1 ¶ 5.) At his request, plaintiff was reassigned from the Security Unit to the Rehabilitation Unit, the unit responsible for maintaining law libraries and schools in the County jails, on January 4, 2006. (County 56.1 ¶ 4; DaSilva 56.1 ¶ 6.) Plaintiff served as a drill instructor for the High Impact Incarceration Program (“HIIP”) within the Rehabilitation Unit from January 2006 until July 2007, when the HIIP was shut down. (County 56.1 ¶ 6; DaSilva 56.1 ¶ 7.) Thereafter, plaintiff was transferred within the Rehabilitation Unit to the 832 Law Library. (County 56.1 ¶ 7; DaSilva 56.1 ¶ 7.) Defendant DaSilva, a white male, was working as a correction officer in the Rehabilitation Unit at the time plaintiff was transferred there in January 2006. (County 56.1 ¶ 9; DaSilva 56.1 ¶ 2; Pl.'s Counter 56.1 ¶ 2.) 1. November 15, 2007 Memorandum and Subsequent Investigation On Friday, November 9, 2007, plaintiff informed Gruntorad, his supervisor, that he was experiencing problems with DaSilva, but that he was unsure whether he wanted to “pursue this situation.” (County 56.1 ¶ 11.) Gruntorad told plaintiff “that there was no place for harassment in the sheriff's department,” and that plaintiff should “officially bring [DaSilva] up on department charges” if he was harassing plaintiff, but that she would give plaintiff the Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 20 of 47 PageID #: 226 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 weekend to decide how to handle the situation. (County 56.1 ¶ 12.) The following Monday, Gruntorad gave plaintiff a copy of the NCSD's anti-harassment and discrimination Standard Operating Procedure (“SOP”) and told him that he should file a complaint if DaSilva had violated the SOP. (County 56.1 ¶ 13.) Over the next day or two, plaintiff conveyed to Gruntorad some specific allegations of harassment by DaSilva, and she ordered plaintiff to provide her with a report of his allegations. (County 56.1 ¶ 14.) Complying with Gruntorad's directive, plaintiff filed an inter-departmental memorandum detailing his allegations of harassment by DaSilva on November 15, 2007. (County 56.1 ¶ 14; DaSilva 56.1 ¶ 32.) Plaintiff's memorandum alleged that DaSilva committed, inter alia, the following acts: *3 • telephoning plaintiff, saying that “Johnson is a dead man,” and then hanging up; • mimicking and mocking plaintiff in front of inmates; • drawing pictures of plaintiff giving oral sex to men; • stuffing tree branches in the rims of plaintiff's car tires and scratching the hood of his car; • tailgating plaintiff “honking like a maniac” while driving to work; • pulling his gun out of his holster while smiling at plaintiff, and then tailgating plaintiff while driving; • yelling at plaintiff in a classroom to get out of his chair, spraying the chair after plaintiff stood up, and then threatening to ram the spray can down plaintiff's throat. 3 (Siravo Decl. Ex. B, Memorandum from Johnson to Gruntorad, Nov. 15, 2007.) None of the allegations in plaintiff's November 15, 2007 memorandum concerned racial animus. (County 56.1 ¶ 16; DaSilva 56 .1 ¶ 33; see generally Siravo Decl. Ex. B, Memorandum, Nov. 15, 2007.) Plaintiff has also testified that DaSilva called him a “n and a monkey” during the classroom chair incident; however, plaintiff did not report this statement in his November 15, 2007 memorandum. (County 56.1 ¶ 17; see Johnson Dep. at 76, 470.) Immediately after receiving plaintiff's memorandum, Gruntorad ordered the separation of plaintiff and DaSilva, and DaSilva's right to possess a firearm was revoked. (County 56.1 ¶¶ 18-19; DaSilva 56.1 ¶ 37.) Gruntorad then forwarded plaintiff's memorandum to her supervisor, Zuaro, who forwarded the memorandum to the Nassau County Equal Employment Opportunity office (the “County EEO”) for investigation. 4 (County 56.1 ¶ 20; see Siravo Decl. Ex. C, Memorandum from Gruntorad to Zuaro, Nov. 16, 2007.) On November 16, 2007, plaintiff met with Dr. Joseph Volker (“Volker”), an affirmative action specialist and the County EEO's representative for the NCSD. (See Pl.'s Counter 56.1 ¶ 157.) Based upon plaintiff's inter-departmental memorandum and information provided to Volker by plaintiff, Volker completed the County EEO's initial intake form and checked off both race and sexual orientation as the bases of DaSilva's harassment. (Id. ¶¶ 157-58; DaSilva 56.1 ¶ 36.) Volker sent the County EEO complaint to Mary Elisabeth Ostermann (“Ostermann”), who was the director of the County EEO (see Volker Dep. at 15), and Loconsolo, who was the general counsel to the NCSD. (See Pl.'s Counter 56.1 ¶ 161.) Thereafter, plaintiff made other complaints to Volker, which Volker forwarded to Ostermann, Loconsolo, and Sposato. (See id. ¶ 164.) Instead of launching a full investigation, Volker claims that the County EEO conducted only a “limited inquiry” into plaintiff's allegations. (See Volker Dep. at 62.) According to Volker, his role in this “limited inquiry” was to handle the “immediate impact” of the alleged discrimination on the members of the NCSD, while Ostermann investigated plaintiff's complaint for bias and discrimination. (See id. at 64-65.) Volker explained that the “limited inquiry” was “an evasion” enabling the County EEO to close cases without conducting investigations. (See id. at 176.) Loconsolo also described the investigation as a “limited inquiry.” However she testified that limited inquiries still entailed interviews of potential witnesses. (See Loconsolo Dep. at 109.) *4 Twelve days after plaintiff filed his complaint, Ostermann determined that the complaint should be referred back to the NCSD because plaintiff's allegations did not concern harassment on the basis of plaintiff's membership in a protected class (e.g., race). (Pl.'s Counter 56.1 ¶ 171.) Accordingly, the County EEO referred the matter back to the NCSD for investigation on November 28, 2007. (See County 56.1 ¶ 21; Siravo Decl. Ex. F, Memorandum from Chen to File, Nov. 28, 2007.) Ultimately, Volker found two witnesses who corroborated plaintiff's allegation of the so-called “chair incident.” (County Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 21 of 47 PageID #: 227 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 56.1 ¶ 23.) In particular, these witnesses confirmed that DaSilva had confronted plaintiff, forced him out of a chair, told him he stunk “like a monkey,” and called him a “f homo.” (Siravo Decl. Ex. H, Case Analysis & Pre- Determination, Jan. 3, 2008.) Witnesses also confirmed that, just before plaintiff claimed that DaSilva had tailgated him, DaSilva rushed to his car and said, “I have to go. I have to follow Rodney.” (Id.) Volker met with Loconsolo and NCSD Commissioner Sidney Head (“Head”) to discuss his findings. (County 56.1 ¶ 24.) Loconsolo recommended that the investigation stay with her and Volker rather than proceed to the NCSD's Internal Affairs Unit (“IAU”). (Pl.'s Counter 56.1 ¶ 171.) Commissioner Head decided to send Vol ker's findings to Zuaro, and on March 12, 2008, Zuaro gave DaSilva a written reprimand as discipline for his actions. (County 56.1 ¶¶ 24-25; see Siravo Decl. Ex. J, Notice of Personnel Action, Mar. 13, 2008.) 2. Allegations of Harassment in 2008 and Defendants' Response In the meantime, on January 3, 2008, plaintiff submitted another inter-departmental memorandum to McDevitt alleging that DaSilva had called him a “f asshole” the day before. (Pl.'s Counter 56.1 ¶¶ 72-74; DaSilva 56.1 ¶ 39.) On April 1, 2008, plaintiff submitted two additional memoranda to Volker documenting more alleged harassment by DaSilva. (County 56.1 ¶ 26; DaSilva 56.1 ¶ 41.) In the first memorandum, plaintiff stated that DaSilva called him a “f asshole” on March 14, 2008. (Siravo Decl. Ex. K, Memoranda from Johnson to Volker, Apr. 1, 2008, at 1.) In the second, plaintiff averred that DaSilva drove alongside plaintiff on the Southern State Parkway making faces at plaintiff before speeding off. 5 (See id. at 2.) Plaintiff also expressed concern that DaSilva had received only a reprimand for his actions, and that if the NCSD returned DaSilva's firearm to him, DaSilva might shoot plaintiff. (See id.) In response to these two memoranda, Zuaro referred DaSilva to the Employee Assistance Program. (County 56.1 ¶ 27.) On August 20, 2008, plaintiff submitted another inter- departmental memorandum in which he alleged that DaSilva had intentionally bumped him with his shoulder while the two officers were picking up their paychecks. 6 (County 56.1 ¶ 28; DaSilva 56.1 ¶ 45.) At least one witness confirmed plaintiff's version of events. (County 56.1 ¶ 29.) Plaintiff also filed a complaint dated August 21, 2008, with the County EEO. (See Brewington Decl. Ex. II, County EEO Compl., Aug. 21, 2008.) The complaint alleged harassment on the basis of retaliation, but not race. (See id. at 1; see also DaSilva 56.1 ¶¶ 55-56.) *5 Golio, the supervisor of the NCSD's Legal Unit, directed plaintiff to meet with Kreutz, a supervisor in the IAU. (Pl.'s Counter 56.1 ¶¶ 177, 187-88.) Plaintiff met with Kreutz on August 22, 2008. (Id. ¶ 189.) Kreutz informed plaintiff that IAU could not assist plaintiff at that time because the County EEO was still conducting its investigation. (Id. ¶ 190.) According to Loconsolo, however, IAU and County EEO investigations may overlap, and only she, the commander officer of IAU, or the NCSD Sheriff had the authority to end an IAU investigation due to a parallel investigation by the County EEO. (See Loconsolo Dep. at 53-57.) Not until November 18, 2008, did Kreutz decide to investigate the August 20, 2008 incident, and IAU took two years to complete the investigation. (Pl.'s Counter 56.1 ¶¶ 198, 201.) Meanwhile, as a result of the August 20, 2008 incident, Zuaro, Gruntorad, and McDevitt met with DaSilva and his union representative. (County 56.1 ¶ 30.) Ultimately, no disciplinary action was taken against DaSilva, but an alternative arrangement was made for DaSilva to pick up his paycheck elsewhere so that he would not cross paths with plaintiff. (County 56.1 ¶ 30; see E-mail from Zuaro to Head, Sept. 5, 2008.) No further incidents occurred between plaintiff and DaSilva while they were picking up their paychecks. (County 56.1 ¶ 31.) On September 4, 2008, plaintiff submitted additional memoranda alleging further harassment by DaSilva. (County 56.1 ¶ 32.) In one memorandum, plaintiff claimed that DaSilva had followed him into a Walmart parking lot and waited behind him for several minutes. (Id. ¶ 32; DaSilva 56.1 ¶ 49; Siravo Decl. Ex. N, Memoranda from Johnson to Gruntorad, Sept. 4, 2008, at 1.) In the second memorandum dated September 4, 2008, plaintiff complained that while he was leaving work and merging onto the Southern State Parkway, DaSilva raced past him and almost cut him off. 7 (County 56.1 ¶ 32; DaSilva 56.1 ¶ 46; Siravo Decl. Ex. N, Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 22 of 47 PageID #: 228 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 Memoranda, Sept. 4, 2008, at 2.) Plaintiff testified that he had complained to Zuaro about DaSilva almost running him off the road, but that Zuaro said “he couldn't do anything until he [had] seen blood.” (Johnson Dep. at 139-40.) Plaintiff had another incident with DaSilva on August 29, 2008, which he memorialized in a separate interdepartmental memorandum to Kreutz dated September 8, 2008. (See Johnson Dep. at 160-64; DaSilva 56.1 ¶ 51; Pl.'s Counter 56.1 ¶¶ 92-98.) In this memorandum, plaintiff alleged that the rear passenger side of his car had been hit by another car while parked in the NCSD parking lot. (Pl.'s Counter 56.1 ¶ 92; DaSilva 56.1 ¶ 51). The blue residue on plaintiff's car was very similar to the blue paint on DaSilva's car, and numerous correction officers had witnessed DaSilva painting his car around the same time that plaintiff's car was hit. (Pl.'s Counter 56.1 ¶¶ 92-96.) On August 1, 2008, plaintiff filed a complaint with the County EEO documenting his allegations contained in his inter-departmental memoranda dated from January 3, 2008, through September 8, 2008. (DaSilva 56.1 ¶ 54.) *6 On September 23, 2008, DaSilva was transferred out of the Rehabilitation Unit to the Security Unit. (County 56.1 ¶ 34.) Zuaro testified that he transferred DaSilva to the Security Unit so that DaSilva would receive closer supervision. (County 56.1 ¶ 35.) The next incident between plaintiff and DaSilva did not occur until December 17, 2009 -over one year after DaSilva's transfer. (County 56.1 ¶¶ 36, 40.) 3. Allegations of Harassment in 2009 Sometime in 2009, plaintiff was transferred from the 832 Law Library to the Core Law Library at his request. (County 56.1 ¶ 37 .) As plaintiff explained in his deposition, he told Gruntorad that he was “burnt out” from his assignment to the 832 Law Library, which had involved dealing with eighty to one hundred inmates per day. (See Johnson Dep. at 186-87, 193.) By contrast, a correction officer assigned to the Core Library dealt with approximately ten inmates per day. (See id. at 186-87.) Indeed, plaintiff testified that he went through five partners in three years while assigned to the 832 Law Library. (See id. at 188.) Plaintiff's placement in the Core Law Library put him in a position to have more contact with DaSilva, however. (County 56.1 ¶ 52.) On December 17, 2009, plaintiff claims that he encountered DaSilva in the Core Courtyard, and that DaSilva called him a “cock sucking n ” and said that his “mother was a whore.” (County 56 .1 ¶ 40.) According to an inter-departmental memorandum submitted by plaintiff on December 18, 2009, DaSilva continued calling plaintiff a n and threated to “kick [his] ass.” (Siravo Decl. Ex. P, Memorandum from Johnson to McDevitt, Dec. 18, 2009.) Plaintiff also filed a complaint with the County EEO on December 18, 2009, alleging the same conduct and claiming harassment on the basis of his race, color, and sex. (See DaSilva 56.1 ¶¶ 60-61; Brewington Decl. Ex. HH, County EEO Compl., Dec. 18, 2009.) Plaintiff's December 18, 2009 memorandum was referred to the IAU for an investigation. (County 56.1 ¶ 41.) Plaintiff stated that he would provide a statement to investigators if ordered to do so; in response, he was told that he would not be ordered to give a statement. (County 56.1 ¶ 42-43; Pl.'s Reply 56.1 ¶ 42; see Siravo Decl. Ex. Q, NCSD IAU Case Narration, June 21, 2010.) Because plaintiff did not give a statement and DaSilva denied the allegations, the IAU closed the investigation. (County 56.1 ¶ 43; see Siravo Decl. Ex. Q, NCSD IAU Case Narration, June 21, 2010.) 4. Allegations of Harassment in 2010 and Plaintiff's Transfer to the 832 Law Library Plaintiff submitted yet another interdepartmental memorandum alleging harassment by DaSilva on January 11, 2010. (County 56.1 ¶ 44.) In this memorandum and in his deposition testimony, plaintiff claims that DaSilva spit toward him. (County 56.1 ¶ 44; Johnson Dep. at 215.) In response to plaintiff's January 11, 2010 memorandum, Gruntorad requested reports from all possible witnesses and referred the memorandum to the IAU. (County 56.1 ¶¶ 46- 47.) Correction Officer Darryl Evans, whom plaintiff had identified as a possible witness to the incident, stated that he had heard “what appeared to be a spitting sound.” (See Siravo Decl. Ex. S, NCSD IAU Case Narration, June 21, 2010.) Ultimately, however, the IAU closed the case as “not sustained.” (County 56.1 ¶ 50.) Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 23 of 47 PageID #: 229 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 *7 On January 12, 2010, Gruntorad transferred plaintiff back to the 832 Law Library. Gruntorad testified that she transferred plaintiff to avoid further incidents between plaintiff and DaSilva, and because many other transfers were made at the same time. (County 56 .1 ¶¶ 53-54; Pl.'s Reply 56.1 ¶¶ 53-54; see Gruntorad Dep. at 248.) An e- mail from Gruntorad to her supervisor explained that she transferred Johnson because she wanted to separate him from DaSilva and needed to make room in the Core Library for someone else. (See Siravo Decl. Ex. T, E-mail from Gruntorad to Rogers, Jan. 22, 2010.) Plaintiff claims that Gruntorad transferred him back to the 832 Law Library as retaliation for his complaints about DaSilva, as he described the 832 Law Library as a “burnout post.” (See Pl.'s Reply 56.1 ¶ 53; Johnson Dep. at 186, 254.) Plaintiff's salary, benefits, title, and schedule remained unchanged, and he had no additional encounters with DaSilva after the transfer. (County 56.1 ¶¶ 55-57.) Plaintiff complained of his transfer to Gruntorad in two inter- departmental memoranda dated March 17, 2010. (County 56.1 ¶ 60.) In the first memorandum, plaintiff requested to be transferred out of the 832 Law Library, explaining that he had already served for three years in the 832 Law Library, and that the 832 Law Library was known as a “burnout post,” “punishment assignment,” and “the least desirable post in the entire unit.” (Siravo Decl. Ex. V, Memoranda from Johnson to Gruntorad, Mar. 17, 2010, at 1.) In the second memorandum, plaintiff expressed his belief that he was not being treated fairly and that he was assigned to the 832 Law Library as retaliation for his prior complaints. (Id. at 2.) Plaintiff sent a copy of the second memorandum to his private attorney, the president of his union, and Gruntorad's superior, Captain Ronald Rogers. (County 56.1 ¶¶ 61-62.) McDevitt found Gruntorad crying in her office over plaintiff's memorandum. (Pl.'s Counter 56.1 ¶ 125.) Gruntorad, who was set to retire at the end of the month, considered plaintiff's memorandum to be harassment and intimidation. (See Brewington Decl. Ex. DD, Memorandum from Gruntorad to Sposato, Mar. 18, 2010.) For copying his attorney and Gruntorad's superior, Gruntorad signed off on the issuance of a Notice of Personnel Action (“NOPA”) against plaintiff, and plaintiff lost ten vacation days. (County 56.1 ¶ 63; Siravo Decl. Ex. X, NOPA, Mar. 29, 2010.) Plaintiff grieved his discipline before an arbitrator, and the arbitrator found that plaintiff had violated the NCSD's Rules and Regulations by sending the memorandum to his private attorney, but not by sending it to Gruntorad's superior. (See Siravo Decl. Ex. Z, Arbitrator Decision, Mar. 29, 2011.) The arbitrator also reduced plaintiff's punishment from the loss of vacation days to a reprimand. (See id.) In his deposition testimony, plaintiff explained that he did not know that he was violating the NCSD's Rules and Regulations at the time, but he knows now that he did violate the rules. (See Johnson Dep. at 259.) *8 On July 28, 2010, plaintiff submitted an inter- departmental memorandum to McDevitt explaining that DaSilva had stated that he was going to leave plaintiff alone, that he was planning to retire, and that he had, in fact, turned on plaintiff's computer and left homosexual drawings on plaintiff's desk. (County 56.1 ¶ 58; see Siravo Decl. Ex. U, Memorandum from Johnson to McDevitt, July 28, 2010.) Within one year of his transfer to the 832 Law Library, plaintiff was transferred back to the Core Library. (See Johnson Dep. at 384-85.) B. Procedural History Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on February 18, 2010. The EEOC issued a notice of right to sue on October 4, 2010. Shortly thereafter, on December 30, 2010, plaintiff commenced the instant action. Following discovery by the parties, DaSilva moved for summary judgment on February 20, 2014, and the County defendants moved for summary judgment on February 21, 2014. A discovery dispute prolonged the briefing on the motion, and plaintiff filed his joint opposition to the motions on August 15, 2014. Defendants filed their replies on August 29, 2014. The Court heard oral argument on the motions on September 19, 2014. This matter is fully submitted, and the Court has fully considered the submissions of the parties. II. STANDARD OF REVIEW The standard for summary judgment is well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 24 of 47 PageID #: 230 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 Fed.R.Civ.P. 56(a); Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.2013). The moving party bears the burden of showing that he is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court “ ‘is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.’ “ Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”). *9 Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts .... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’ “ Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (alteration and emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249-50 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties alone will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247-48 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth “ ‘concrete particulars' “ showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment “ ‘merely to assert a conclusion without supplying supporting arguments or facts.’ “ BellSouth Telecomms., Inc. v. W .R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33). III. DISCUSSION A. Claims against the NCSD As an initial matter, the Court grants summary judgment to the NCSD because the NCSD lacks the legal capacity to be sued separately from the County. It is wellestablished that the NCSD is merely an administrative arm of the County and therefore lacks any independent legal identity apart from the County. Courts thus dismiss claims against the NCSD when the plaintiff has also sued the County itself. See, e.g., Jones v. Nassau Cnty. Corr. Inst., No. 14-CV-1217 (JFB) (GRB), 2014 WL 1277908, at *4 (E.D.N.Y. Mar. 26, 2014) (dismissing claims against the NCSD because it lacks an independent legal identity); Miller v. Cnty. of Nassau, No. 10- CV-3358, 2013 WL 1172833, at *4 (E.D.N.Y. Mar. 19, 2013) (same). For this reason, the Court grants NCSD's motion for summary judgment in its entirety. B. Official Capacity Next, the Court grants summary judgment as to all claims for the individual defendants in their official capacities because the County is a named defendant in the instant case. “ ‘[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent .’ “ Castanza v. Town of Brookhaven, 700 F.Supp.2d 277, 283-84 (E.D.N.Y.2010) (quoting Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 690 n. 55 (1978)); see also Jackler v. Byrne, 658 F.3d 225, 244 (2d Cir.2011) (noting that “a claim asserted against a government official in his official capacity is essentially a claim against the governmental entity itself”); Davis v. Stratton, 360 F. App'x 182, 183 (2d Cir.2010) (summary order) (“The suit against the mayor and police chief in their official capacities is essentially a suit against the City of Schenectady, because in a suit against a public entity, naming officials of the public entity in their official capacities adds nothing to the suit.” (internal citations and quotation marks omitted)). Accordingly, where a plaintiff brings claims against both a municipality and individuals in their official capacities as agents of that municipality, “ ‘courts have routinely dismissed corresponding claims against individuals named Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 25 of 47 PageID #: 231 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 8 in their official capacity as redundant and an inefficient use of judicial resources.’ “ Castanza, 700 F.Supp.2d at 284 (quoting Escobar v. City of New York, No. 05-CV-3030- ENV-CLP, 2007 WL 1827414, at *3 (E.D.N .Y. June 25, 2007)). C. Title VII *10 Plaintiff brings hostile work environment and retaliation claims under Title VII against all defendants except DaSilva. At the outset, the Court notes that there is no individual liability under Title VII. Accordingly, the Court grants summary judgment for all individual defendants on plaintiff's Title VII claims. See, e.g., Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000) (affirming dismissal of Title VII claims against individual defendants “because individuals are not subject to liability under Title VII”); Copeland v. Rosen, 38 F.Supp.2d 298, 302 (S.D.N.Y.1999) ( “[I]ndividual employees may not be held personally liable under Title VII, even if they are supervisory personnel with the power to hire and fire other employee.”). The Court proceeds to consider the viability of plaintiff's Title VII claims against the County. 1. Statute of Limitations First, the County defendants contend that plaintiff's Title VII claims are time-barred to the extent they rely on incidents occurring before April 24, 2009 (i.e., more than three hundred days before the filing of his EEOC complaint on February 18, 2010). (See County Defs.' Mem., at 3.) The Court disagrees. Under 42 U.S.C. § 2000e-5(e)(1), a plaintiff in New York has 300 days “after the alleged unlawful employment practice occurred” to file a charge of discrimination with the EEOC. See, e.g., Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133-34 (2d Cir.2003); Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir.1999). To determine whether a claim was timely filed, incidents of employment discrimination or retaliation “must be categorized as either discrete acts or continuing violations.” Alers v. N.Y.C. Human Res. Admin., No. 06-CV6131 (SLT)(LB), 2008 WL 4415246, at *5 (E.D.N.Y. Sept. 24, 2008) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-16 (2002)), aff'd, 357 F. App'x 330 (2d Cir.2009). A claim based upon a discrete act of discrimination or retaliation, “such as termination, failure to promote, denial of transfer, or refusal to hire,” is time-barred if the discrete act occurred outside the applicable limitations period. Morgan, 536 U.S. at 113; see, e.g., Colvin v. State Univ. Coll. at Farmingdale, No. 13-CV-3595 (SJF)(ARL), 2014 WL 2863224, at *17 (E.D.N.Y. June 19, 2014). This holds true “even when [a discrete act is] related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113. By contrast, a claim based upon discrimination or retaliation occurring “over a series of days or perhaps years,” such as a hostile work environment, is timely if even one contributing act occurred within the limitations period. Id. at 116-18; see, e.g., Elmenayer, 318 F.3d at 134. Accordingly, a hostile work environment claim is timely filed even if only one act contributing to the hostile work environment occurred within the applicable limitations period. See, e.g., Raneri v. McCarey, 712 F.Supp.2d 271, 281 (S.D.N.Y.2010) (“To defeat the statute of limitations by applying the continuing violation theory, the evidence must show that such a hostile environment was created prior to, and continued into, [the limitations period].”). *11 Here, plaintiff filed his charge of discrimination with the EEOC on February 18, 2010. Accordingly, his claims must have accrued on or after April 24, 2009, in order to be timely. With respect to plaintiff's Title VII hostile work environment claim, plaintiff has created a triable issue of fact concerning harassment by DaSilva extending into 2010. Thus, plaintiff's hostile work environment claim encompasses incidents occurring within the 300 day limitations period and is timely. As for his Title VII retaliation claim, the alleged acts of retaliation-the transfer to the 832 Law library in January 2010 and the NOPA issued in March 2010-clearly occurred within the 300 day limitations period. Thus, the retaliation claim is timely, as well. 2. Hostile Work Environment Plaintiff claims that he was subjected to a racially hostile work environment that can be imputed to the County. For the reasons that follow, the Court denies the County's motion for summary judgment as to this claim. a. Legal Standard To establish a hostile work environment under Title VII, a plaintiff must show that his workplace was “permeated with ‘discriminatory intimidation, ridicule, and insult ... that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 26 of 47 PageID #: 232 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 environment.’ “ Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir.2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “Isolated instances of harassment ordinarily do not rise to this level.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000); see also Williams v. Cnty. of Westchester, 171 F.3d 98, 100-01 (2d Cir.1999) (“[P]laintiff must show more than a few isolated incidents of racial enmity” to establish a claim of a racially hostile work environment (internal citations and quotation marks omitted)). A plaintiff must show not only that the conduct in question was “severe or pervasive enough to create an objectively hostile or abusive work environment,” but also that “the victim ... subjectively perceive[d] that environment to be abusive.” Feingold v. New York, 366 F.3d 138, 150 (2d Cir.2004) (internal citations and quotation marks omitted); see also Terry v.. Ashcroft, 336 F.3d 128, 148 (2d Cir.2003). Relevant factors to consider in determining whether an environment is sufficiently hostile include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Terry, 336 F.3d at 148. The Second Circuit has noted, however, that “[w]hile the standard for establishing a hostile work environment is high, ... [t]he environment need not be ‘unendurable’ or ‘intolerable.’ “ Id. (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir.2000)). Moreover, although a hostile work environment generally consists of “continuous and concerted” conduct, “a single act can create a hostile work environment if it in fact works a transformation of the plaintiff's workplace.” Feingold, 366 F.3d at 150 (quotation marks and alteration omitted). *12 Furthermore, to succeed on a hostile work environment claim in the instant case, plaintiff must link the actions by defendants to his race. Although “[f]acially neutral incidents may be included, of course, among the ‘totality of the circumstances' that courts consider in any hostile work environment claim,” Alfano v. Costello, 294 F.3d 365, 378 (2d Cir.2002), plaintiff nevertheless must offer some evidence from which a reasonable jury could infer that the facially neutral incidents were in fact discriminatory, see Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 440 (2d Cir.1999) (“But to sustain a Title VII hostile environment claim [plaintiff] must show more-she must produce evidence that she was discriminated against because of her race, and this she has not done.”), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Finally, a plaintiff seeking to establish a hostile work environment claim must demonstrate that “a specific basis exists for imputing the objectionable conduct to the employer.” Alfano, 294 F.3d at 373. As the Supreme Court and Second Circuit have noted, “employers are not automatically liable for ... harassment perpetrated by their employees.” Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir.2004) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998)). Where, as here, the harassment was allegedly committed by a nonsupervisory co-worker, “an employer's vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action.” Petrosino, 385 F.3d at 225. “An employer who has notice of a discriminatorily abusive environment in the workplace has a duty to take reasonable steps to eliminate it.” Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 249 (2d Cir.1995). “In the context of summary judgment, ‘[i]f the evidence creates an issue of fact as to whether an employer's action is effectively remedial and prompt, summary judgment is inappropriate.’ “ Smith v. Town of Hempstead Dep't of Sanitation Sanitary Dist. No. 2, 798 F.Supp.2d 443, 454 (E.D.N.Y.2011) (quoting Gallagher v. Delaney, 139 F .3d 338, 348 (2d Cir.1998), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). b. Application The Court concludes that plaintiff has created a triable issue of fact as to whether he endured a racially hostile work environment over a year period of four to five years. Specifically, plaintiff has come forward with evidence that, if credited, reasonably could support the following findings: DaSilva harassed and threatened him verbally, brandished his gun at plaintiff in a threatening manner, attempted to drive plaintiff off the road on several occasions, followed him outside work, scratched plaintiff's car, and put branches in his tires. A reasonable jury could also find that this harassment was continuous. Moreover, there is evidence that DaSilva used racially-charged language during some of these incidents. According to plaintiff, DaSilva called him a n and a monkey on multiple occasions. When evaluating the totality of the circumstances, if plaintiff's evidence is credited, a reasonable jury could find that plaintiff's work environment was permeated with racially discriminatory Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 27 of 47 PageID #: 233 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 10 intimidation, ridicule, and insult that was sufficiently severe and pervasive that it altered the conditions of plaintiff's employment and created an abusive working environment. 8 See, e.g., Benedith v. Malverne Union Free Sch. Dist., No. 11-CV-5964 (ADS)(GRB), 2014 WL 4056554, at *20 (E.D.N.Y. Aug. 15, 2014) (“ ‘[G]iven American history, we recognize that the word ‘n ’ can have a highly disturbing impact on the listener. Thus, a plaintiff's repeated subjection to hearing that word could lead a reasonable factfinder to conclude that a working environment was objectively hostile.' “ (quoting Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir.2004))). In addition, plaintiff testified that he subjectively perceived the environment to be abusive. (See, e.g., Johnson Dep. at 37 (“I think he was on a racially motivated campaign to intimidate me, to torment me any opportunity he could.”).) *13 Because the Court concludes that there is a genuine issue of fact concerning the existence of a racially hostile work environment, the Court must consider whether there is evidence from which a reasonable jury could impute that work environment to the County. The Court finds that there is. In particular, although plaintiff failed to identify any evidence of race-based discrimination in his November 15, 2007 inter-departmental memorandum (which, the County contends, led the County EEO to close his case within twelve days of receiving it), Volker later found evidence that DaSilva had, in fact, referred to plaintiff as a “monkey” during one of the incidents. In the Court's view, construing this evidence most favorably to plaintiff, a reasonable jury could find that the County's failure to follow up any further on the racial component to DaSilva's harassment constituted a wholly inadequate response to DaSilva's behavior. Moreover, the relatively minor discipline (a reprimand) imposed for DaSilva's conduct could also support a reasonable finding that the County's response to plaintiff's complaints was inadequate. See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir.2000) (holding that evidence that defendant- employer imposed minimal punishment for harassment of plaintiff by its employee reasonably could “be viewed as an inappropriate response”). Indeed, there is evidence that DaSilva continued harassing plaintiff even after being disciplined. Of course, the County can also point to evidence showing that it did take steps to separate plaintiff from DaSilva in an effort to improve plaintiff's situation. However, “[t]he promptness and adequacy of an employer's response is generally a question of fact for the jury,” Dobrich v. Gen. Dynamics Corp., Elec. Boat Div., 106 F.Supp.2d 386, 394 (D.Conn.2000), and this case is no different. Accordingly, the Court denies the County's motion for summary judgment as to plaintiff's Title VII hostile work environment claim. This claim may proceed to trial. 3. Retaliation Plaintiff asserts that the County unlawfully retaliated against him for complaining about DaSilva's harassment. He bases this claim upon his transfer to the 832 Law Library in January 12, 2010, and the NOPA issued against him on March 29, 2010. (See Pl.'s Opp'n, at 22-24.) For the following reasons, the Court grants summary judgment to the County insofar as this claim is premised upon the transfer of plaintiff to the 832 Law Library, but denies summary judgment to the County with respect to this claim insofar as it is premised upon the NOPA. a. Legal Standard Title VII prohibits an employer from firing an employee in retaliation for having made a charge of discrimination. 42 U.S.C. § 2000e-3(a). In the absence of direct evidence of a retaliatory motive, a Title VII retaliation claim is subject to the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e .g., Kirkland v. Cablevision Sys., F.3d at ----, No. 13-3625-CV, 2014 WL 3686090, at *1 (2d Cir. July 25, 2014); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.2013); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.2010). Under this framework, a plaintiff must first set forth a prima facie case of retaliation by showing that (1) he engaged in a protected activity; (2) defendant was aware of that activity; (3) plaintiff suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See, e.g., Kwan, 737 F.3d 844; Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir.2003). If the plaintiff establishes a prima facie case of retaliation, then the burden shifts to the defendant- employer to provide a legitimate, nonretaliatory reason for its actions. See, e.g., Kirkland, 2014 WL 3686090, at *2 (citing McDonnell Douglas, 411 U.S. at 802). The Supreme Court has explained the defendant's burden as follows: Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 28 of 47 PageID #: 234 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 11 *14 The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated [or retaliated] against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the [challenged action]. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254- 55 (1981); see, e.g., Porter v. Potter, 366 F. App'x 195, 197 (2d Cir.2010) (summary order); Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir.2001). Where the defendant articulates such a reason, “the burden then shifts back to the plaintiff to show that the employer's explanation is a pretext for ... retaliation.” Kirkland, 2014 WL 3686090, at *2. Ultimately, because “Title VII retaliation claims must be proved according to traditional principles of but-for causation,” the plaintiff must show “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013); see, e.g., Kirkland, 2014 WL 3686090, at *2; Kwan, 737 F.3d at 845. “ ‘[B]ut-for’ causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.” Kwan, 737 F.3d at 846. To meet this burden, the plaintiff may rely on evidence presented to establish her prima facie case as well as additional evidence. Such additional evidence may include direct or circumstantial evidence of discrimination. Desert Palace, Inc. v. Costa, 539 U .S. 90, 99-101 (2003). It is insufficient, however, for a plaintiff merely to show that she satisfies “McDonnell Douglas 's minimal requirements of a prima facie case” and to put forward “evidence from which a factfinder could find that the employer's explanation ... was false.” James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir.2000). Instead, the key is whether there is sufficient evidence in the record from which a reasonable trier of fact could find in favor of plaintiff on the ultimate issue, i.e., whether the record contains sufficient evidence “that retaliation was a but-for cause of the adverse employment action.” Weber v. City of New York, 973 F.Supp.2d 227, 271 (E.D.N.Y.2013). b. Application i. Prima facie case The County defendants contend that plaintiff cannot establish a prima facie retaliation claim as a matter of law because (1) he was not subjected to an adverse employment action, and (2) there is no evidence of a causal connection between plaintiff's complaints and those adverse employment actions. (See County Defs.' Mem., at 4-6.) The Court disagrees. First, both plaintiff's transfer to the 832 Law Library and the NOPA issued against him could qualify as adverse employment actions. Significantly, the Supreme Court has defined an “adverse employment action” in the Title VII retaliation context (distinct from, and broader than, the standard in the Title VII discrimination context) to mean an action that is “materially adverse” and that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” White, 548 U.S. at 68 (internal citations omitted). Here, a reasonable jury could find that both plaintiff's transfer and the NOPA meet that standard. With respect to the transfer, plaintiff has testified that the 832 Law Library was a “burnout” post requiring a correction officer in that position to interact with ten times the number of inmates that a correction officer in the Core Library supervised. Moreover, plaintiff testified that he went through five partners in three years in that position, which supports his claim that officers tried to get out of that post as soon as possible. See, e.g., Flynn v. N.Y. State Div. of Parole, 620 F.Supp.2d 463, 491 (S.D.N.Y.2009) (holding that lateral transfer from Special Offender Unit parole officer to parole officer handling mixed caseload could constitute adverse employment action for purposes of retaliation claim, where transfer entailed supervision of more parolees). See generally Fornah v. Cargo Airport Servs., LLC, No. 12-CV-3638 (RER), 2014 WL 25570, at *14 n. 14 (E.D.N.Y. Jan. 2, 2014) (“A transfer can be an adverse employment action under a retaliation claim.”) (citing Kessler v. Westchester Cnty. Dep't of Soc. Servs ., 461 F.3d 199, 209-10 (2d Cir.2006)). As for the NOPA, there is at least a genuine issue as to whether the NOPA affected plaintiff's ability to earn a promotion. (See Johnson Dep. at 369 (explaining how NOPA limits ability to earn promotion to corporal).) Accordingly, this form of reprimand may qualify as an adverse employment action in that it could reasonably dissuade a reasonable worker from making a charge of discrimination. See, e.g., Millea v. Metro- N.R.R. Co., 658 F.3d 154, 165 (2d Cir.2011) (“A formal Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 29 of 47 PageID #: 235 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 12 reprimand issued by an employer is not a ‘petty slight,’ ‘minor annoyance,’ or ‘trivial’ punishment; it can reduce an employee's likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy. A reasonable jury could conclude as much even when, as here, the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently.”). *15 The Court also concludes that plaintiff has met his minimal burden to show a causal connection between his complaints and the adverse employment actions discussed supra. See generally Kwan, 737 F.3d at 844 (describing plaintiff's burden at this stage as “minimal” and “de minimis” (internal citations and quotation markets omitted)). At this stage, a causal connection between the protected activity and the adverse employment action can be shown either “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.2000). Here, plaintiff has put forth evidence that his transfer to the 832 Law Library occurred one day after he submitted his January 11, 2010 memorandum complaining of further harassment by DaSilva. Similarly, plaintiff's NOPA followed within weeks of his March 17, 2010 memoranda. This evidence suffices to shift the burden to the County to proffer legitimate, non- retaliatory reasons for the allegedly adverse employment actions discussed supra. ii. Legitimate, Non-Retaliatory Reasons With respect to the transfer, the County claims that Gruntorad transferred plaintiff from the Core Library to the 832 Law Library to separate plaintiff and DaSilva, and also for administrative reasons. (County Defs.' Mem., at 9-10; see Siravo Decl. Ex. T, E-mail from Gruntorad to Rogers, Jan. 22, 2010.) As plaintiff concedes, he had fewer interactions with DaSilva after his transfer to the 832 Law Library (see County 56.1 ¶ 56); indeed, no additional incidents of harassment by DaSilva occurred after the transfer (see id. ¶ 57). Moreover, Gruntorad's January 22, 2010 e-mail explaining her transfers creates at least a triable issue as to whether plaintiff was transferred to the 832 Law Library for administrative reasons. From this evidence, the Court concludes that the County has met its burden to proffer a legitimate, nonretaliatory reason for transferring plaintiff to the 832 Law Library. See, e.g., Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV3872 (ER), 2013 WL 2922483, at *10 (S.D.N.Y. June 14, 2013) (holding that transfer of employee to meet employer's staffing needs in face of reduction in workforce was a legitimate, non- retaliatory reason for transfer); Kemp v. Metro-N.R.R., 316 F. App'x 25, 27 (2d Cir.2009) (summary order) (holding that “clash of personalities” was legitimate, nondiscriminatory reason for transferring employee (citing Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir.1986))); Ferrer v. Potter, No. 03-CV-9113 (AJP), 2005 WL 1022439, at *9 n. 8 (S.D.N.Y. May 3, 2005) (same) (citing cases). As for the NOPA, the County claims that it disciplined plaintiff for violating the NCSD's Rules and Regulations by sending an inter-departmental memorandum to his private attorney. (County Defs .' Mem., at 11-12.) A neutral arbitrator found that plaintiff violated at least one of NCSD's Rules and Regulations, and plaintiff conceded at his own deposition that his action violated those rules. (See Johnson Dep. at 259). An employer's belief that its employee violated company policy is certainly a legitimate, non-retaliatory reason for disciplining that employee. See, e.g., Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir.1997); Shepheard v. N.Y.C. Corr. Dep't, 360 F. App'x 249, 251 (2d Cir.2010) (summary order); see also Matima v. Celli, 228 F.3d 68, 79 (2d Cir.2000) (“An employer does not violate Title VII when it takes adverse employment action against an employee to preserve a workplace environment that is governed by rules, subject to a chain of command, free of commotion, and conducive to the work of the enterprise.”). *16 In sum, the County has come forward with evidence of legitimate, non-retaliatory reasons for transferring plaintiff to the 832 Law Library and for issuing the NOPA. Accordingly, the burden shifts to plaintiff to come forward with admissible evidence showing that the County's proffered reasons were pretext for retaliation. iii. Pretext First, the Court concludes that plaintiff has raised a triable issue of fact as to whether his transfer to the 832 Law Library would not have occurred in the absence of a retaliatory motive. Gruntorad testified that, at least in part, she transferred plaintiff “back to the 832 Law Library because of the January 11, 2010, Inter-Departmental Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 30 of 47 PageID #: 236 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 Memo Plaintiff submitted regarding further harassment by Defendant DaSilva.” (Gruntorad Dep. at 248.) Although she claims that her motivation behind this transfer was “to prevent any other problems” between plaintiff and DaSilva (see id.), it is unclear why she transferred plaintiff instead of transferring DaSilva-the one accused of pervasive harassment. See Williams v. City of New York, No. 99-CV-2697 (ARR)(LB), 2006 WL 2668211, at *22 (E.D.N.Y. Sept. 11, 2006) (holding that plaintiff's retaliatory transfer claim survived summary judgment where defendant transferred plaintiff instead of his accused harasser, observing that “[i]f, in fact, defendants' goal was to separate plaintiff and Jackson-presumably both (1) to prevent further disruptive conflict between them and (2) to protect plaintiff from further incidents of sexual harassment and sexual assault, at least until the BOE completed its investigation into the veracity of her allegations-it seems that transferring Jackson, the accused harasser, to another school would have accomplished that goal”); see also Porter v. Erie Foods Int'l,, Inc., 576 F.3d 629, 642 (7th Cir.2009) (“In the usual case we would expect the employer to remedy the harassment by inconveniencing the harasser with a transfer and not the victim.”); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir.1991) (“We strongly believe that the victim of sexual harassment should not be punished for the conduct of the harasser. We wholeheartedly agree with the EEOC that a victim of sexual harassment should not have to work in a less desirable location as a result of an employer's remedy for sexual harassment.”). Construing the evidence most favorably to plaintiff, a reasonable jury could conclude from this evidence, evidence of the short timing between plaintiff's January 11, 2010 interdepartmental Memorandum and his transfer, and the additional evidence of Gruntorad's retaliatory motive discussed infra, that retaliation was a but- for cause of plaintiff's transfer to the 832 Law Library. As for the NOPA, plaintiff has come forward with evidence that Gruntorad became upset when she received plaintiff's memorandum complaining that his transfer to the 832 Law Library was unfair. According to McDevitt, Gruntorad cried after receiving it. Gruntorad herself indicated her displeasure with plaintiff's memorandum in a memorandum sent to Sposato, describing it as harassment and intimidation. Additionally, as plaintiff observes, his January 11, 2010 memorandum also indicates that it was sent to plaintiff's private attorney; however, plaintiff was not disciplined at that time. (Pl.'s Counter 56.1 ¶ 141; see Siravo Decl. Ex. R, Memorandum from Johnson to McDevitt, Jan. 11, 2010.) The fact that plaintiff was not punished for the same conduct in the past, coupled with evidence of Gruntorad's reaction to plaintiff's March 17, 2010 memorandum, could allow a reasonable jury to infer that the NOPA would not have been issued in the absence of a retaliatory motive. *17 For the foregoing reasons, the Court denies summary judgment to the County as to the Title VII retaliation claim. D. Claims under Sections 1981 and 1983 The Court turns next to plaintiff's hostile work environment and retaliation claims brought under Sections 1981 and 1983. 1. Legal Standards Most of the standards applicable to Title VII claims, discussed in detail supra, also apply to Section 1981 employment claims and Section 1983 equal protection claims. See, e.g., Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir.2010); Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004). However, the Second Circuit has noted “several significant differences” between the standards governing Title VII claims, on the one hand, and claims brought under Sections 1981 and 1983, on the other hand. See Patterson, 375 F.3d at 225. First, whereas Title VII claims must be filed within 300 days of an EEOC filing, New York's three-year statute of limitations governs the timeliness of claims brought under Sections 1981 and 1983. 9 See id.; see also Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir.2004) (citing cases); Harrison v. Harlem Hosp., 364 F. App'x 686, 688 (2d Cir.2010) (summary order). Second, Section 1981 and Section 1983 claims against a municipality require proof “that the challenged acts were performed pursuant to a municipal policy or custom.” Patterson, 375 F.3d at 226 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733- 36 (1989) (discussing Section 1981); Monell, 436 U.S. at 692-94 (discussing Section 1983)). Third, as noted supra, individuals cannot be held liable under Title VII. See id. By contrast, individuals may be held liable under Sections 1981 and 1983 “for certain types of discriminatory acts, including those giving rise to a hostile work environment.” Id. (citing cases). “Fourth, although in certain circumstances a Title VII claim may be established through proof of a defendant's mere negligence, without a showing of discriminatory intent, a plaintiff pursuing a claimed violation of § 1981 or denial of equal protection under § 1983 must show that the discrimination was intentional.” Id. at 226-27 (internal citations omitted). In other words, whereas a plaintiff may Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 31 of 47 PageID #: 237 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 14 pursue a disparate impact theory of liability under Title VII, he may not do so under Sections 1981 or 1983. See Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir.2012) (citing Patterson, 375 F.3d at 226). 2. County Liability With respect to plaintiff's hostile work environment claims, some of the individuals who conducted the investigation into plaintiff's harassment-individuals such as the director of the County EEO, the commissioner of the NCSD, and the general counsel to the NCSD-were policymakers for the County. See Wharton v. Cnty. of Nassau, No. 10- CV-0265 (JS)(AKT), 2013 WL 4851713, at *14 (E.D.N.Y. Sept. 10, 2013) (concluding that Loconsolo and Ostermann were policymakers for the County). Evidence that their investigation may have been inadequate, discussed supra, thus supports liability under Sections 1981 and 1983. See Smith, 798 F.Supp.2d at 454 (“Here, the individuals who conducted the investigation into the hanging of the noose were policy makers for the Sanitary District. Thus, the evidence that their investigation may have been insufficient raises a triable issue of fact as to whether their failure to conduct an adequate investigation could be attributed to the Sanitary District as municipal policy.... Therefore, summary judgment on the Section 1981 and 1983 hostile work environment claims against the Sanitary District is not appropriate.”). Moreover, plaintiff has introduced additional evidence, through the testimony of Volker, that the County EEO had a de facto policy of investigating complaints by conducting only a “limited inquiry” despite the County's formal policy requiring a more expansive investigation. On the basis of this evidence, the Court denies the County's motion for summary judgment on the Sections 1981 and 1983 hostile work environment claims. *18 As for the Section 1981 and Section 1983 claims based on retaliation, however, there is simply no evidence of a County policy or custom that caused the alleged retaliation. In fact, plaintiff points to no such evidence in his opposition papers; he has limited his argument only to the existence of a policy or custom as it relates to a racially hostile work environment. Accordingly, the Court grants the County's motion for summary judgment as to the Section 1981 and Section 1983 retaliation claims. 3. Individual Liability Both Section 1981 and Section 1983 require personal involvement in the claimed violation in order to hold an individual defendant liable in his individual capacity. See, e.g., Patterson, 375 F.3d at 229. “Personal involvement, within the meaning of this concept, includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure to take action upon receiving information that constitutional violations are occurring.” Id. (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)). a. DaSilva DaSilva argues that the Section 1981 and Section 1983 claims fail as a matter of law because he was not acting under color of state law. (See DaSilva Mem., at 8-11.) Cf. Glendora v. Hostetter, 916 F.Supp. 1339, 1341 (S.D.N.Y.) (“To recover under 42 U.S.C. §§ 1983 and 1981, a plaintiff must show the alleged violation occurred ‘under color of state law.’ ”), aff'd, 104 F .3d 353 (2d Cir.1996). Plaintiff fails to respond to this argument in his opposition brief. “In a case charging hostile environment ... harassment, ‘under color of state law’ ordinarily requires that the harasser be a supervisor or have some position of authority or control over the plaintiff.” Quinn v. Nassau Cnty. Police Dep't, 53 F.Supp.2d 347, 355 (E.D.N.Y.1999) (internal citations and quotation marks omitted). “Where the individual defendant is merely a co-worker of the plaintiff, such claims are routinely dismissed for failure to state a claim.” Olsen v. Cnty. of Nassau, No. 05-CV-3623 (ETB), 2008 WL 4838705, at *7 (E.D.N.Y. Nov. 4, 2008); see also Burns v. City of Utica, ---F.Supp.2d ----, No. 12-CV-1741 (FJS/ DEP), 2014 WL 688975, at *6 (N.D.N.Y. Feb. 20, 2014) (dismissing Section 1983 claim because no allegation that defendant's sexual assault of plaintiff related to his duties as firefighter); Kohutka v. Town of Hempstead, 994 F.Supp.2d 305, 317 (E.D.N.Y.2014) (dismissing Section 1983 claim against individuals who did not have supervisory authority over plaintiff and did not use their governmental authority in sexually harassing her); Petrosky v. N.Y. State Dep't of Motor Vehicles, 72 F.Supp.2d 39, 63 (N.D.N.Y.1999) (“Other courts have rejected the contention that co-worker harassment was done under color of law ‘when the harassment did not involve use of state authority or position’ “ (quoting Woodward v. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 32 of 47 PageID #: 238 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 15 City of Worland, 977 F.2d 1392, 1400 (10th Cir.1992))). The Second Circuit, although not taking a definitive position on this issue, observed in Patterson that “[o]ther circuits confronted with a plaintiff's claims of harassment by his or her nonsupervisory co-workers have ruled that some harassment should be construed merely as personal-frolic hazing or horseplay and not as state action.” 375 F .3d at 230. *19 Here, as an initial matter, plaintiff's failure to address DaSilva's argument concerning his individual liability under Sections 1981 and 1983 could be grounds for the Court to consider these claims abandoned. See, e.g., Maher v. Alliance Mortg. Banking Corp., 650 F.Supp.2d 249, 267- 68 (E.D.N.Y.2009) (“ ‘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.’ “ (quoting Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y.2003))). In any event, it is undisputed that plaintiff and DaSilva held the same rank of Correction Officer; DaSilva was not plaintiff's superior. In addition, the harassment of plaintiff for which DaSilva is accused had absolutely no connection to DaSilva's position as a correction officer. Instead, even when viewing the evidence in the light most favorable to plaintiff, the Court concludes that DaSilva's harassment of plaintiff was completely outside the scope of DaSilva's governmental authority. Accordingly, the Court grants summary judgment to DaSilva as to the Section 1981 and Section 1983 claims against him because DaSilva's conduct did not constitute state action. b. Gruntorad To the extent plaintiff premises his Section 1981 and 1983 claims on alleged retaliation, a reasonable jury could find that Gruntorad issued the decision to transfer plaintiff to the 832 Law Library and the NOPA in retaliation for plaintiff's memoranda complaining of discrimination and harassment. As Gruntorad was personally involved in these decisions, she may be held liable for retaliation under Sections 1981 and 1983. Therefore, the Court denies Gruntorad's motion for summary judgment as to these claims. However, there is no evidence that Gruntorad was personally involved in creating the racially hostile work environment of which plaintiff complains. Moreover, plaintiff has come forward with evidence showing at most that Gruntorad was negligent in responding to plaintiff's complaints about that hostile work environment. As the Second Circuit has held, mere negligence in the supervision of subordinates who commit wrongful acts is insufficient to give rise to individual liability under Sections 1981 and 1983. See, e.g., Whidbee, 223 F.3d at 75 (“At most, the Garzarell is were negligent in maintaining their restaurant's anti-discrimination policy. Even if this were the case, such negligence does not constitute the ‘personal involvement’ or ‘affirmative link’ necessary to support a claim of individual liability.”); cf. Patterson, 375 F.3d at 229 (“Personal involvement, within the meaning of this concept, includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure to take action upon receiving information that constitutional violations are occurring.” (emphasis added)). Accordingly, the Court grants Gruntorad's motion for summary judgment as to these claims. c. Other Defendants *20 As for the remaining defendants, even when viewing the evidence in the light most favorable to plaintiff, the evidence shows that Sposato, Loconsolo, Kreutz, Zuaro, Golio, and McDevitt were at most negligent in their failure to follow the County's internal investigation and antidiscrimination policies in responding to plaintiff's complaints about DaSilva's behavior. Because there are no other facts demonstrating their personal involvement in the allegedly hostile work environment, the Court grants summary judgment to these defendants as to the hostile work environment claims under Sections 1981 and 1983. See, e.g., Whidbee, 223 F.3d at 75; Marvelli v. Chaps Cmty. Health Ctr., 193 F.Supp.2d 636, 653 (E.D.N.Y.2002). Moreover, although some of these defendants were involved in the issuance of the NOPA, there is no evidence that a retaliatory animus motivated anyone else except Gruntorad to take disciplinary action against plaintiff. Therefore, the Court grants summary judgment to these defendants on the Section 1981 and Section 1983 retaliation claims. * * * To summarize, plaintiff's Section 1981 and Section 1983 hostile work environment claims may proceed against the County, and his Section 1981 and 1983 retaliation claims may proceed against Gruntorad. The Court grants summary judgment to all individual defendants with respect to the Section 1981 and Section 1983 hostile work environment Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 33 of 47 PageID #: 239 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 16 claims. The Court also grants summary judgment to the County, DaSilva, Sposato, Loconsolo, Kreutz, Zuaro, Golio, and McDevitt with respect to plaintiff's retaliation claims under Sections 1981 and 1983. E. Title VI Claim Plaintiff brings a Title VI claim against all defendants except DaSilva. As an initial matter, it is well established that individuals sued in their individual capacities cannot be held liable under Title VI. See, e.g., Milione v. City Univ. of N.Y., 950 F.Supp.2d 704, 708 (S.D.N.Y.2013), aff'd, No. 13-2761, 2014 WL 2109051 (2d Cir. May 21, 2014); DT v. Somers Cent. Sch. Dist., 588 F.Supp.2d 485, 498 (S.D.N.Y.2008), aff'd, 348 F. App'x 697 (2d Cir.2009); Peters v. Molloy Coll. of Rockville Ctr., No. 07-CV-2553 (DRH)(ETB), 2008 WL 2704920, at *8 (E.D.N.Y. July 8, 2008) (citing cases). Accordingly, the Court grants summary judgment for all individual defendants on this claim. For the reasons that follow, the Court also grants summary judgment for the County as to this claim. 1. Legal Standard Title VI of the Civil Rights Act of 1964 prohibits programs that receive federal funding from engaging in intentional discrimination on the basis of race. 42 U.S.C. § 2000d. “In order to recover for a violation of Title VI, a plaintiff must demonstrate that (1) the defendant received federal financial assistance, (2) the plaintiff was an intended beneficiary of the program or activity receiving the assistance, and (3) the defendant discriminated against the plaintiff on the basis of race, color, or national origin in connection with that program or activity.” Martin v. State Univ. of N.Y., 704 F.Supp.2d 202, 233 (E.D.N.Y.2010) (citing Commodari v. Long Island Univ., 89 F.Supp.2d 353, 378 (E.D.N.Y.2000)). In an employment discrimination case, “the federal funds received by defendants must have been aimed primarily at providing employment.” Id. (citing Ass'n Against Discrimination In Employment (“AADE”), Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir.1981)). 2. Application *21 The County defendants argue for summary judgment on this claim because the record is devoid of evidence showing that the County of NCSD received federal funding, or that plaintiff was the intended recipient of a program receiving such funding. (County Defs.' Mem., at 18-19.) Plaintiff does not contest this point. Plaintiff's failure to address the County defendants' argument could be grounds for the Court to consider this claim abandoned. See, e.g., Maher, 650 F.Supp.2d at 267-68. Even if the claim were not abandoned, there is absolutely no evidence in the record that the County or NCSD received federal funding. For this reason, plaintiff's claim fails as a matter of law. See Commodari v. Long Island Univ., 62 F. App'x 28, 30 (2d Cir.2003) (summary order) (affirming summary judgment where there was “no evidence that the Union received federal financial aid for purposes of sustaining [plaintiff's] Title VI claim”); Carmody v. Vill. of Rockville Ctr ., 661 F.Supp.2d 299, 338 (E.D.N.Y.2009) (granting summary judgement where “plaintiff has failed to offer any evidence whatsoever to support his claim that the Village Defendants received federal funds aimed at employment during the time that plaintiff was employed with the RVCPD, thereby subjecting them to potential liability under Title VI”). Accordingly, the Court grants summary judgment for all defendants on the Title VI claim. 10 F. Section 1985(3) Plaintiff brings a Section 1985(3) conspiracy claim against all defendants. For the following reasons, the Court grants summary judgment to all defendants on this claim. 1. Legal Standard Section 1985(3) prohibits two or more persons from conspiring for the purpose of depriving any person of the equal protection of the laws or of equal privileges and immunities under the laws. 42 U.S.C. § 1985(3). To establish a claim under § 1985(3), a plaintiff must establish (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. See, e.g., Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.1999) (citing Traggis v. St. Barbara's Greek Orthodox Church, 851 F.2d 584, 586-87 (2d Cir.1988)); Frasco v. Mastic Beach Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 34 of 47 PageID #: 240 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 17 Prop. Owners' Ass'n, No. 12-CV2756 (JFB)(WDW), 2014 WL 3735870, at *4 (E.D.N.Y. July 29, 2014); Hollman v. Cnty. of Suffolk, No. 06-CV-3589 (JFB)(ARL), 2011 WL 280927, at *11 (E.D.N.Y. Jan. 27, 2011). The intracorporate conspiracy doctrine posits that the officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other. See, e.g., Farbstein v. Hicksville Pub. Library, 254 F. App'x 50, 51 (2d Cir.2007) (summary order) (affirming dismissal of conspiracy complaint “at the first step of analysis” because complaint made reference only to employees of same corporation); Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.1978) ( “[T]here is no conspiracy [under Section 1985] if the conspiratorial conduct challenged is essentially a single act by a single corporation acting exclusively through its own ... officers[ ] and employees, each acting within the scope of his employment.”); Cameron v. Church, 253 F.Supp.2d 611, 623 (S.D.N.Y.2003); Quinn v. Nassau Cnty. Police Dep't, 53 F.Supp.2d 347, 359-60 (E.D.N.Y.1999); Rini v. Zwirn, 886 F.Supp. 270, 292 (E.D.N.Y.1995) ( “Intracorporate immunity has also been extended to the context of conspiracies between a public entity and its employees.”). To show that defendants acted outside the scope of their employment, such that the intracorporate conspiracy doctrine does not apply, a plaintiff must show that the defendants were “pursuing personal interests wholly separate and apart from the entity.” Tardd v. Brookhaven Nat'l Lab., 407 F.Supp.2d 404, 414 (E.D.N.Y.2006) (citing cases); see, e.g., Little v. City of New York, 487 F.Supp.2d 426, 442 (S.D.N.Y.2007) (dismissing conspiracy claims under Sections 1983 and 1985 under intracorporate conspiracy doctrine where plaintiff “does not provide any evidence to suggest that [defendants] were motivated by an independent personal stake in his arrest and prosecution”). 2. Application *22 All individual defendants were employees of the County during the relevant time period. Moreover, plaintiff has failed to submit any evidence suggesting that any of these defendants acted outside the scope of their official duties and in their own personal interests in discriminating or retaliating against him. Plaintiff's effort to salvage this claim by pointing to proof of discriminatory and retaliatory motives is unavailing; if such evidence sufficed to avoid dismissal under the intracorporate conspiracy doctrine, then the limited exception to the intracorporate conspiracy doctrine “would swallow the rule.” Jeter v. N.Y.C. Dep't of Educ., 549 F.Supp.2d 295, 303 (E.D.N.Y.2008) (dismissing Section 1985(3) claim where plaintiff had “not alleged that any of the alleged conspirators were motivated by anything other than the same bias and desire to retaliate that permeate his complaint”); see also Feacher v. Intercontinental Hotels Grp., 563 F.Supp.2d 389, 401 (N.D.N.Y.2008). Accordingly, plaintiff's Section 1985(3) fails as a matter of law, and all defendants are entitled to summary judgment on this claim. G. Section 1986 Plaintiff also brings a claim under Section 1986, which “provides a cause of action against anyone who having knowledge that any of the wrongs conspired to be done and mentioned in section 1985 are about to be committed and having power to prevent or aid, neglects to do so.” Thomas, 165 F.3d at 147 (citation and internal quotation marks omitted). Section 1985 liability is a necessary predicate to a Section 1986 claim. See Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir.2000); see also Posr v. Court Officer Shield # 207, 180 F.3d 409, 419 (2d Cir.1999) (affirming dismissal of Section 1986 claim where district court also dismissed Section 1985 claim). Here, because the Court grants summary judgment for defendants as to the Section 1985 claim, the Court also grants summary judgment for all defendants on the Section 1986 claim. 11 H. State Law Claims 1. NYSHRL Claims a. Notice of Claim Before considering the merits of plaintiff's NYSHRL claims, the Court must address the County defendants' and DaSilva's argument that plaintiff's conceded failure to file a notice of claim with the County requires the dismissal of his NYSHRL claims. (See County Defs.' Mem., at 23-24; DaSilva Mem., at 22-25.) i. Legal Standard Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 35 of 47 PageID #: 241 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 18 State claims brought under state law in federal court are subject to state procedural rules. See, e.g., Felder v. Casey, 487 U.S. 131, 141 (1988). As such, New York County Law § 52 applies in this case and provides that [a]ny claim or notice of claim against a county ... for damages arising at law or in equity ... alleged to have been caused in whole or in part by or because of any misfeasance, omission of duty, negligence, or wrongful act on the part of the county, its officers, agents, servants or employees, must be made and served in compliance with section fifty-e of the general municipal law.... Every action upon such claim shall be commenced pursuant to the provisions of section fifty-i of the general municipal law. *23 N.Y. County Law § 52(1). Section 52 incorporates the notice of claim requirements contained in New York General Municipal Law §§ 50-e and 50-i. Section 50-e requires that a notice of claim be filed within ninety days of the incident giving rise to the claim. Moreover, pursuant to Section 50-i, a plaintiff must plead in the complaint that: (1) the notice of claim was served; (2) at least thirty days has elapsed since the notice of claim was filed and before the complaint was filed; and (3) in that time the defendant has neglected to or refused to adjust or to satisfy the claim. See Horvath v. Daniel, 423 F.Supp.2d 421, 423 (S.D.N.Y.2006). “Notice of claim requirements are construed strictly by New York state courts. Failure to comply with these requirements ordinarily requires a dismissal for failure to state a cause of action.” Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir.1999) (internal quotations and citations omitted); see Horvath, 423 F.Supp.2d at 423 (“Absent a showing of such a Notice of Claim, the complaint may be dismissed for failure to state a cause of action.” (internal quotation omitted)). Accordingly, for the asserted state law claims, “[t]he failure to file a notice of claim is fatal unless the action has been brought in the public interest, such as a class action brought to protect civil rights, or a court has granted leave to serve late notice.” Pustilnik v. Hynes, No. 99-CV- 4087 (JG), 2000 WL 914629, at *6 (E.D.N.Y. June 27, 2000) (citation omitted). ii. Application Plaintiff concedes that he has never filed a notice of claim in connection with the instant case. (See Pl.'s Opp'n, at 3-8.) Nonetheless, plaintiff contends that his NYSHRL claims should not be dismissed because (1) the notice of claim requirement does not apply to claims of employment discrimination, (2) defendants were on notice of plaintiff's claims even though plaintiff never filed a notice of claim, and (3) the notice of claim requirement does not extend to claims against individual defendants. 12 (See id.) The Court rejects plaintiff's first argument as a matter of law. The New York Court of Appeals has held explicitly that “[w]hen an employment discrimination action is brought against a county under the State or Federal civil rights statutes, the failure to timely file a notice of claim shall be fatal unless the action has been brought to vindicate a public interest or leave to serve late notice has been granted by the court.” Mills v. Monroe Cnty., 59 N.Y.2d 307, 308 (1983). In particular, although the notice of claim requirement set forth in New York General Municipal Law §§ 50- e and 50-i applies only to torts and “does not apply in cases of employment discrimination brought pursuant to [the NYSHRL],” it is well established that New York County Law § 52(1) “has broader application than General Municipal Law § 50-e” and does apply to NYSHRL claims. Anderson v. Nassau Cnty. Dep't of Corr., 558 F.Supp.2d 283, 303 (E.D.N.Y.2008) (citing cases); see also Keating v. Gaffney, 182 F.Supp.2d 278, 291 (E.D.N.Y.2001) (holding that N.Y. County Law § 52, which applies to claims against a county, “is a much broader statute than General Municipal Law § 50-e” and applies to employment discrimination actions). This Court finds this interpretation of New York County Law § 52 persuasive and likewise concludes that the notice of claim requirement set forth in that statute covers employment discrimination claims brought under the NYSHRL. *24 Second, the Court cannot excuse plaintiff's failure to file a notice of claim in this case. This action, in which plaintiff seeks to vindicate his private interests, does not fit within the limited public interest exception. See, e.g., Feldman v. Nassau Cnty., 349 F.Supp.2d 528, 539 (E.D.N.Y.2004) ( “Plaintiff's allegations of discriminatory conduct on the part of the defendants refer solely to conduct that affects his interest in employment as a police officer. Since plaintiff seeks the enforcement of his private interests, the public interest exception to the notice of claim requirement is Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 36 of 47 PageID #: 242 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 19 inapplicable.” (internal citations omitted)), aff'd, 434 F.3d 177 (2d Cir.2006). Moreover, a defendant's “actual notice” of plaintiff's state law claim does not excuse the failure to file a notice of claim. See, e.g., Olsen v. Cnty. of Nassau, No. 05-CV-3623 (ETB), 2008 WL 4838705, at *2 (E.D.N.Y. Nov. 4, 2008) (“[T]he fact that the County may have received actual notice of the plaintiffs' claims herein through either their EEOC charges or the information discovered by the County during their investigation into those charges does not relieve plaintiffs of the requirement of serving a notice of claim upon the County in order to sustain their New York Human Rights Law claims.”). A defendant's “actual notice” of the claim against it and “an absence of prejudice” may provide a basis for a court to grant leave to file a late notice of claim, Brownstein v. Inc. Vill. of Hempstead, 859 N.Y.S.2d 682, 686 (N.Y App. Div.2008); however, New York General Municipal Law § 50-e(7) permits only certain state courts-“the supreme court or ... the county court” in certain counties-to consider and to grant an application for an extension of time, N.Y. Gen. Mun. Law § 50-e(7); see, e.g., Henneberger v. Cnty. of Nassau, 465 F.Supp.2d 176, 200 (E.D.N.Y.2006) (citing cases). This Court does not have the power to grant such a request. Third, plaintiff's assertion that the failure to file a notice of claim does not bar a claim against an individual defendant is incorrect as to claims against individuals sued in their official capacities, but correct as to claims against them in their individual capacities. The failure to file a notice of claim in this case does require the dismissal of plaintiff's claims against the individual defendants in their official capacities. See, e.g., Keating, 182 F.Supp.2d at 290 (“County officials, employees, or entities ... are subject to the notice of claim provision as well.”); Anderson, 558 F.Supp.2d at 303 (“[T]he notice of claim requirements apply to the plaintiff's claims against Nassau County and the individual defendants acting in their official capacities.”); see also Pustilnik, 2000 WL 914629, at *7 (E.D.N .Y. June 27, 2000) (dismissing state law employment discrimination claim against individuals who were “[c]ounty officials subject to the notice of claim provision”). As for a state law claim against an individual defendant in his individual capacity, “the requirements of Sections 50-e and 50-i are not conditions precedent to the commencement of an action against a county official or employee unless the county is required to indemnify such person,” and “[t]he County's duty to indemnify these employees turns on whether they were acting within the scope of their employment.” Wharton, 2013 WL 4851713, at *15 (internal citations and quotation marks omitted); see, e.g., Bielski v. Green, 674 F.Supp.2d 414, 428 (W.D.N.Y.2009); Grasso v. Schenectady Cnty. Pub. Library, 817 N.Y.S.2d 186, 817-18 (N.Y.App.Div.2006). Because plaintiff has raised a triable issue of fact as to whether DaSilva acted outside the scope of his employment in creating a hostile work environment, plaintiff's failure to file a notice of claim does not require the dismissal of his NYSHRL claims against DaSilva. See, e.g., id. However, no reasonable jury could conclude that any other individual defendant, including Gruntorad, acted outside the scope of his or her employment, even though plaintiff accuses them of committing unlawful discrimination and retaliation. Cf. Delaney v. City of Albany, No. 12-CV-1575 LEK/RFT, 2014 WL 701637, at *6 (N.D.N.Y. Feb. 24, 2014) (noting that putative intentional torts of police officers may fall within scope of employment); Rowley v. City of New York, No. 00-CV-1793 (DAB), 2005 WL 2429514, at *12 (S.D.N.Y. Sept. 30, 2005). Accordingly, plaintiff's failure to file a notice of claim does require the dismissal of his NYSHRL claims against all individual defendants except DaSilva. See, e.g., Crippen v. Town of Hempstead, No. 07-CV3478 (JFB) (ARL), 2009 WL 803117, at *16 (E.D.N.Y. Mar. 25, 2009) (dismissing claim against individual defendant for failure to file notice of claim where the claim against the individual defendant “relate[d] solely to his status as a [Town of Hempstead] employee, while he was acting within the scope of his employment”). *25 For the reasons stated supra, the Court dismisses plaintiff's NYSHRL claims against the County, all individual defendants in their official capacities, and all individual defendants in their individual capacities except DaSilva, for failure to file a notice of claim. b. Merits i. Legal Standard The standard that governs hostile work environment claims brought under Title VII also governs hostile work environment claims brought under the NYSHRL. See, e.g., Cruz, 202 F.3d at 565 n. 1 (explaining that the analysis of claims brought under the state human rights laws is the same as the analysis used in Title VII claims); Collier v. Boymelgreen Developers, No. 06-CV-5425 (SJ), 2007 WL 1452915, at *4 (E.D.N.Y. May 17, 2007) (“The Court's consideration of claims brought under [NYSHRL] ... parallels the analysis used for Title VII claims.”). Retaliation claims Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 37 of 47 PageID #: 243 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 20 under the NYSHRL, like hostile work environment claims, are generally governed by the same standards as federal claims under Title VII. See Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir.2006). Unlike Title VII, however, “[i]ndividual liability is sometimes possible” under the NYSHRL. Mandell v. Cnty. of Suffolk, 316 F .3d 368, 377 (2d Cir.2003). Specifically, “a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the [NYSHRL]” pursuant to NYSHRL § 296(6), which “states that it shall be an unlawful discriminatory practice ‘for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so.’ “ Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.1995) (quoting N.Y. Exec. Law § 296(6)). Contrary to DaSilva's position, even a coworker (i.e., not a supervisor) may be held liable under NYSHRL § 296(6), as long as he actually participated in the conduct giving rise to the discrimination claim. See Feingold, 366 F.3d at 158 (“In Tomka, we found that this language allowed a coworker who ‘actually participates in the conduct giving rise to a discrimination claim’ to be held liable under the NYSHRL even though that co-worker lacked the authority to either hire or fire the plaintiff.” (quoting Tomka, 66 F.3d at 1317)); see also Cohn v. KeySpan Corp., 713 F.Supp.2d 143, 160 (E.D.N.Y.2010) (“The Second Circuit has held that individual liability may be imposed under the NYSHRL on a coworker who ‘actually participates in the conduct giving rise to a discrimination claim,’ irrespective of whether that coworker possessed the authority to do more than carry out personnel decisions made by others.” (quoting Feingold, 366 F.3d at 157-58)). ii. Application For the reasons discussed supra, plaintiff has raised a triable issue of fact as to whether DaSilva personally participated in the creation of a racially hostile work environment. Accordingly, the Court denies DaSilva's motion for summary judgment as to plaintiff's NYSHRL claim against him. 2. Breach of Contract *26 Finally, plaintiff asserts a breach of contract claim against the County and some of the individual defendants. He premises this claim upon the County's alleged breach of its equal employment policy. (See Pl.'s Opp'n, at 39- 40.) However, under New York law, an employment handbook's anti-discrimination and anti-harassment policies may not serve as the basis for a breach of contract claim. See, e.g., Willis v. Verizon N.Y., Inc., No. 11-CV- 5078, 2012 WL 2370125, at *6 (E.D.N.Y. June 22, 2012) (dismissing breach of contract claim based on employee handbook); Abdi v. Brookhaven Sci. Assocs., LLC, 447 F.Supp.2d 221, 229 (E.D.N.Y.2006) (“An employer's general statements reiterating its obligation to abide by existing law concerning discrimination and equal employment do not serve as the basis for such a claim.”); Davis v. Oyster Bay-E., No. 03-CV-1372 (SJF)(JO), 2006 WL 657038, at *15 (E.D.N.Y. Mar. 9, 2006), aff'd, 220 F. App'x 59 (2d Cir.2007) (“[I]t is equally well-established that an employer's antidiscrimination policies and manuals cannot serve as the basis for a breach of contract claim.”); Burger v. Litton Indus., Inc., No. 91-CV-0918 (WK)(AJP), 1996 WL 421449, at *22 (S .D.N.Y. Apr. 25, 1996) (“[T]he Equal Employment and Opportunity statements cited by Burger from Litton's employment manuals, rather than insuring a term of employment, simply establish general anti- discrimination principles. Such general statements of equal opportunity and nondiscrimination made in an employment handbook or manual cannot serve as the basis for a breach of contract action under New York law.”), report & recommendation adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996); Blaise-Williams v. Sumitomo Bank, Ltd., 592 N.Y.S.2d 41, 42 (N.Y.App.Div.1993) (“[W]e are simply dealing with a general statement of equal opportunity and nondiscrimination contained in an employee handbook. Such a general statement, which is nothing more than a statement of existing law concerning discrimination, may not serve as a basis for a breach of contract claim.”). Accordingly, the Court grants summary judgment to all defendants on this claim. IV. CONCLUSION For the reasons set forth herein, the Court grants in part and denies in part defendants' motions for summary judgment. In particular, the Court grants summary judgment to the NCSD as to all claims. As for the Title VII claims, the Court grants summary judgment for all individual defendants and denies the County's motion for summary judgment in all respects. As for the Section 1981 and Section 1983 claims, the Court grants summary judgment for all individual defendants except for Gruntorad, against whom plaintiff may pursue a retaliation claim, grants summary judgment for the County Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 38 of 47 PageID #: 244 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 21 with respect to the retaliation claim, and denies the County's motion for summary judgment with respect to the hostile work environment claim. The Court also grants summary judgment for the County and all individual defendants except DaSilva on plaintiff's NYSHRL claims. Finally, the Court grants summary judgment for all defendants as to the Title VI, Section 1985(3), Section 1986, and breach of contract claims. *27 SO ORDERED. All Citations Slip Copy, 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 Footnotes 1 Although the parties' respective Rule 56.1 statements of facts contain specific citations to the record, the Court cites to the Rule 56.1 statement instead of the underlying citation to the record. However, the Court disregards all assertions in the Rule 56.1 statements that are unsupported by the record. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001) (noting that district court may disregard an assertion in a Rule 56.1 statement that is unsupported by record). 2 “County 56.1” refers to the Rule 56.1 statement of facts submitted on behalf of the County defendants. “DaSilva 56.1” refers to the Rule 56.1 statement of facts submitted on behalf of defendant DaSilva. 3 In his deposition, plaintiff testified that these incidents did, in fact, occur. (See Johnson Dep. at 29-77.) 4 The County EEO investigates claims of discrimination and retaliation by employees of the County. (County 56.1 ¶ 69.) Each department within the County is assigned a County EEO representative who investigates complaints made within their particular department. (Id. ¶ 70.) 5 Plaintiff also described these incidents in his deposition. (See Johnson Dep. at 111-15, 118-20.) 6 Plaintiff described this incident in his deposition, as well. (See Johnson Dep. at 141-47.) 7 Plaintiff testified about these events during his deposition. (See Johnson Dep. at 124-30, 132-36.) 8 Defendants maintain that they are entitled to summary judgment because DaSilva did not use any racial slurs in many of the instances of alleged harassment of plaintiff. The Court disagrees. “Facially neutral incidents may be included, of course, among the ‘totality of the circumstances' that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on [race].” Alfano, 294 F.3d at 378; see, e.g., McCowan v. HSBC Bank USA, N.A., 689 F.Supp.2d 390, 417 (E.D.N.Y.2010) (concluding that reasonable jury could find hostile work environment based on disability based upon combination of disability-related comments and facially-neutral incidents); Rodriguez v. City of New York, 644 F.Supp.2d 168, 191 (E.D.N.Y.2008) (reaching same conclusion with respect to hostile work environment based on gender); Zhao v. State Univ. of N.Y., 472 F.Supp.2d 289, 313 (E.D.N.Y.2007) (reaching same conclusion with respect to hostile work environment based on national origin). Here, a reasonable jury could infer that the facially neutral incidents of harassment were consistent with a hostile work environment based on race when there is evidence that, if credited, DaSilva used racially discriminatory language on some occasions. 9 The County defendants contend that plaintiff's Section 1981 and Section 1983 claims are untimely to the extent they are premised on incidents that occurred more than three years before the commencement of the instant case. (See County Defs.' Mem., at 19 n. 8.) The Court disagrees for substantially the same reasons discussed supra in connection with the timeliness of plaintiff's Title VII claims. Cf. Bermudez v. City of New York, 783 F.Supp.2d 560, 582 (S.D.N.Y.2011) (applying Title VII standards of assessing timeliness to claims brought under Sections 1981 and 1983); Bartoli v. City of New York, No. 09-CV-4163 (JG)(VVP), 2010 WL 1539055, at *3 (E.D.N.Y. Apr. 19, 2010) (same) (citing cases). Plaintiff commenced this action on December 30, 2010; thus, his Section 1981 and 1983 claims must have accrued on or after April 24, 2009, in order to be timely. Because plaintiff has created a triable issue of fact concerning harassment by DaSilva extending into 2010, his entire hostile work environment claim is timely under the continuing violation doctrine. Plaintiff's retaliation claim is timely because the alleged acts of retaliation occurred in 2010-well within the three year limitations period. 10 Because the Court concludes that plaintiff's Title VI claim fails on the merits as a matter of law, the Court need not address the County defendants' statute of limitations argument. 11 The Court need not consider the County defendants' argument concerning the timeliness of the Section 1986 claim. 12 At oral argument, plaintiff's counsel also cited Freudenthal v. County of Nassau, 726 N.Y.S.2d 116 (N.Y.App.Div.2001), and Kushner v. Valenti, 285 F.Supp.2d 314 (E.D.N.Y.2003), for the proposition that the filing of a complaint with the EEOC (or with the New York State Division of Human Rights) satisfies the notice of claim requirement. Neither decision supports Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 39 of 47 PageID #: 245 Johnson v. County of Nassau, Slip Copy (2014) 2014 WL 4700025, 124 Fair Empl.Prac.Cas. (BNA) 1393 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 22 that argument. The Court of Appeals held in Freudenthal (in an opinion affirming the Appellate Division's decision) that a petitioner in an administrative proceeding before the New York State Division of Human Rights is “not required to file a notice of claim as a condition precedent to administrative review of her complaint by the Division of Human Rights.” Freudenthal v. Cnty. of Nassau, 99 N.Y .2d 285, 289 (2003) (emphasis added). Freudenthal has no bearing on the notice of claim prerequisite to filing a civil action in state or federal court. In Kushner, Judge Wexler held that a plaintiff's EEOC filing satisfied the notice of claim requirement of New York Education Law § 3813. 285 F.Supp.2d at 316-17. Consistent with other decisions interpreting Kushner, this Court does not find Kushner applicable to claims that are not brought under the New York Education Law. See Rice v. Wayne Cnty., No. 09-CV-6391T, 2010 WL 4861556, at *4 (W.D.N.Y. Nov. 30, 2010) (limiting Kushner to claims brought under the New York Education Law); Cody v. Cnty. of Nassau, 577 F.Supp.2d 623, 648 (E.D.N.Y.2008) (same), aff'd, 345 F. App'x 717 (2d Cir.2009). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 40 of 47 PageID #: 246 Renaud v. Federal Exp. Corp., Not Reported in F.Supp.2d (2012) 2012 WL 34089 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2012 WL 34089 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Reinere R. RENAUD, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant. No. 10 CV 4261(LB). | Jan. 6, 2012. MEMORANDUM AND ORDER BLOOM, United States Magistrate Judge. *1 Plaintiff, Reinere R. Renaud, brings this pro se employment discrimination action against his former employer, FedEx Express Corp., pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S .C. § 2000e, et seq. (“Title VII”). Plaintiff alleges that defendant discriminated against him on the basis of his race, color, and national origin when it terminated his employment. Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. 1 Plaintiff has not opposed defendant's motion. For the following reasons, defendant's motion for summary judgment is granted. BACKGROUND Plaintiff is a black male from Trinidad who worked as an Operations Manager for FedEx on Staten Island from November 1, 2002 through July 14, 2009. (Def.'s 56.1 Stmt. ¶ 1, ECF No. 26-3.) 2 As an Operations Manager, plaintiff's responsibilities included training and supervising fifteen to twenty hourly employees, providing information to employees regarding company policies, and ensuring compliance with those policies. (Id. ¶ 2.) On July 14, 2009, plaintiff was terminated for violating FedEx Policy 7-35, the Reduced-Rate Shipping and FedEx Office Discount Policy, 3 by: (1) processing his own discounted shipment on June 24, 2009; (2) failing to put his FedEx employee number on the shipping document for the package he shipped on June 24, 2009; (3) using his FedEx reduced-rate shipping discount to ship packages for a commercial use; (4) repeatedly allowing a California retail business vendor to ship items to his wife's business using his FedEx reduced-rate shipping discount; and (5) failing to check his credit card statements to ensure that only authorized shipments were receiving his FedEx reduced-rate shipping discount. (Id. ¶¶ 5-6.) Policy 7-35 expressly states that “improper use or abuse of employee discount shipping privileges ... is considered a policy violation and subjects the employee to discipline, up to and including termination....” (Id. ¶ 11.) Plaintiff argues that he unintentionally violated the policy, and that defendant investigated this matter and disciplined him more severely because he is black and Trinidadian. The investigation leading to plaintiff's termination began when FedEx security personnel in Atlanta opened a package that plaintiff had sent to his wife's retail business in Georgia on June 24, 2009. 4 (Id. ¶¶ 22-24, 26-28.) The package contained clothing, as well as documents related to plaintiff's wife's business. (Id. ¶¶ 26-28.) FedEx found that plaintiff had violated Policy 7-35 by processing his own discounted package, failing to reference his employee identification number on the package, and by using his employee discount for commercial purposes. (Id. ¶ 6.) FedEx's investigation further revealed that plaintiff had used his employee discount to ship a total of eight packages to his wife's business between August 8, 2008 and July 14, 2009. (Id. ¶ 21.) In addition, FedEx found that two California business vendors had shipped packages to plaintiff's wife's business address using plaintiff's discount shipping account. (Id. ¶¶ 37-39.) Based on plaintiff's complaint and the discovery materials attached to defendant's instant motion, it appears that plaintiff discussed his policy violations with FedEx security personnel on at least two occasions, and that he was suspended by Senior Manager Shelley Simes on July 8, 2009. 5 (Compl. 6, ECF No. 1; Def.'s Internal Invest. Docs. (“Invest.Docs .”), ECF No. 26-4 at 22, 39-42.) 6 On July 14, 2009, Simes terminated plaintiff. (Def.'s 56.1 Stmt. ¶ 5.) Plaintiff alleges that he appealed his termination to FedEx, but that his appeals were “upheld by 3 different levels of Fedex executive managements.” (Compl.6, 8.) *2 Plaintiff contends that he should not have been terminated because the policy violations were committed by his wife without his knowledge and consent, and because another employee was not terminated for similar conduct. (PL's Resp. to Def.'s Interrog. (“Interrog.”) No. 18, ECF No. 26-5.) He states that he processed his own package on June 24, 2009 because no shipping agents were available to do so, but he claims that this package-and all eight of the packages Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 41 of 47 PageID #: 247 Renaud v. Federal Exp. Corp., Not Reported in F.Supp.2d (2012) 2012 WL 34089 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 he shipped to his wife's business-contained personal items related to his family's move to Georgia. (Compl. 6; PL's Resp. to Def.'s Req. for Admis. (“Admis.”) No. 47, ECF No. 26-4.) He states he used his wife's business address because she was not home to receive the packages. (Compl. 6; Invest. Docs.) Plaintiff also contends that the commercial shipments from California were accidentally arranged by his wife without his knowledge or consent. (Compl. 6, 8-9; Admis. Nos. 13, 48; Invest. Docs.). He claims that when he and his wife became aware of this violation, his wife immediately changed the vendors' shipments to charge her own business account. (Invest.Docs.) Plaintiff alleges that he would not have been investigated or disciplined in the same way if he were white. He alleges that during a meeting on July 14, 2009 with his Senior Manager Shelley Simes (“Simes”), he was terminated. He also alleges that he was informed at the meeting that the security manager in Atlanta had searched his package because he recognized plaintiff's name from an interview the manager had conducted with plaintiff when plaintiff was seeking a transfer to the Atlanta area in 2007. (Compl. 6, 9-10 .) Plaintiff also alleges that he overheard his supervisor comment, “ ‘I think he is being profiled’ by the white security guards.” (Compl.8.) In his sworn interrogatories, plaintiff claims that Simes stated “that I was profiled because I'm a black man from Trinidad and had it happened to a white employee they would not be investigated and punished as I was.” (Interrog.Nos.11, 19.) Simes, however, submits an affidavit stating that she “did not say to anyone nor [does she] think that FedEx Security Personnel opened or inspected or targeted Mr. Renaud's June 24, 2009 package because he is African-American or from Trinidad or because of his color.” (Simes Decl. ¶ 7, ECF No. 26-6.) She states that “Mr. Renaud's numerous violations of FedEx Policy 7-35 were the only reasons that I terminated his employment.” (Simes Decl. ¶¶ 6-7.) Plaintiff also alleges that a similar situation occurred to another black employee, though nothing in the record supports that allegation. (Compl.8.) Further, plaintiff compares himself to Russ A. Battle, a non-Black, non-Trinidadian, FedEx employee who was terminated for violating Policy 7-35 but reinstated. (Compl. 6, 10; Def.'s 56.1 Stmt. ¶ 51.) PROCEDURAL HISTORY On April 30, 2010, plaintiff filed an employment discrimination charge with the New York State Department of Human Rights and the Equal Employment Opportunity Commission (“EEOC”) alleging that FedEx terminated him based on his race, color, and national origin. (Compl.8.) The EEOC found that plaintiff failed to state a claim of employment discrimination and issued plaintiff a right-to- sue letter on June 17, 2010. (Id. 1-12.) Plaintiff filed his complaint against defendant in this Court on September 15, 2010 and was granted in forma pauperis status. (ECF Nos. 1, 3.) On January 20, 2011, the parties consented to a Magistrate Judge for all purposes. (ECF No. 19.) The parties completed discovery and defendant now moves for summary judgment. Plaintiff has failed to oppose the motion. DISCUSSION I. Standard of Review *3 “Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ “ Donineer v. Niehoff, 642 F.3d 334, 344 (2d Cir.2011) (quoting Fed.R.Civ.P. 56(a)). A fact is material if it is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The trial court's function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non- moving party, a rational juror could find in favor of that party .” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.2000) (citation omitted); see also Baker v. Home Depot, 445 F.3d 541, 543 (2d Cir.2006) (resolving all ambiguities and drawing all inferences in favor of the non-moving party on summary judgment). Here, because plaintiff is proceeding pro se, the court reads his papers “liberally and interpret[s] them to raise the strongest arguments that they suggest.” Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006) (quoting Jorgensen v. Epic/ Sony Records, 351 F.3d 46, 50 (2d Cir.2003) (quotation marks omitted)). Even though plaintiff has not opposed defendant's motion, the facts are still viewed in the light most favorable to plaintiff, and the Court must still determine whether Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 42 of 47 PageID #: 248 Renaud v. Federal Exp. Corp., Not Reported in F.Supp.2d (2012) 2012 WL 34089 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 defendant is entitled to judgment as a matter of law. See Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001) (Where the non-moving party “chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.”); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996) (“The fact that there has been no response to a summary judgment motion does not, of course, mean that the motion is to be granted automatically.”). II. Title VII Title VII provides that an employer may not “discharge any individual, or otherwise ... discriminate against any individual ... because of such individual's race, color, ... or national origin.” 42 U.S.C. § 2000e-2(a)(1). The rights of an employee are violated when “[a]n employment decision ... is ‘based in whole or in part on discrimination.’ “ Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008) (emphasis removed) (quoting Feingold v. New York, 366 F.3d 138, 152 (2d Cir.2004) (quotation omitted)). Plaintiff bears the burden of proving, by a preponderance of the evidence, that race, color, or national origin “was at least one of the ‘motivating’ factors” behind his termination. Id. at 138 (quoting Cronin v. Aetna Life Ins. Co. ., 46 F.3d 196, 203 (2d Cir.1995)); see also Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). *4 Title VII claims alleging discriminatory discharge are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir.2010). First, the plaintiff must establish a prima facie case of discrimination by showing that: “(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to the inference of discrimination.” Id. at 491-92 (citing Holcomb. 521 F.3d at 138). The burden of establishing a prima facie case is not onerous; however, “a plaintiff's case must fail if [he] cannot carry this preliminary burden.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (citation omitted). If the plaintiff succeeds in establishing a prima facie case, “a presumption of discrimination arises and the burden shifts to the defendant to proffer some legitimate, nondiscriminatory reason” for plaintiff's termination. Swift v. Countrywide Home Loans, Inc. ., 770 F.Supp.2d 483, 487 (E.D.N.Y.2011) (citing Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir.2005)). This burden on defendant “is one of production, not persuasion; it can involve no credibility assessment.” Reeves, 530 U.S. at 143 (quotation omitted). If the defendant supplies a nondiscriminatory reason for plaintiff's termination, “the presumption of discrimination created by the prima facie case drops out of the analysis, and the defendant ‘will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.’ “ Swift, 770 F.Supp.2d at 487 (quoting Dawson, 398 F.3d at 216 (quotation omitted)). “[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, 530 U.S. at 143 (quotation omitted). A. Plaintiff fails to establish a prima facie case of discrimination Defendant does not dispute that plaintiff has met the first three prongs of his prima facie case: plaintiff is a black Trinidadian, he was qualified for the position of Operations Manager, and his termination constituted an adverse employment action. (Def.'s Mem. of Law 6, ECF No. 26-2.) However, defendant argues that plaintiff cannot establish the fourth prong of his prima facie case, that the circumstances of his termination give rise to an inference of discrimination. A plaintiff can establish an inference of discrimination through direct evidence of discriminatory intent, or through circumstantial evidence demonstrating that the employer treated the plaintiff less favorably than a similarly situated employee outside of his protected group. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 77 (2d Cir.2001); Amna v. New York State Dept. of Health, No. 08-CV-2806 (CBA) (LB), 2011 WL 4592787, at *7 (E.D.N.Y. Sept. 30, 2011). “[I]n reviewing the record, the court is careful to search for any kind of evidence that would support plaintiff's claim of intentional discrimination, bearing in mind that “smoking gun' evidence of discriminatory intent is rare and most often must be inferred.' “ Velez v. SES Operating Corp., No. 07 Civ. 10946(DLC), 2009 WL 3817461, at *8 (S.D.N.Y. Nov.12, 2009) (quoting Forsyth v. Fed'n Emp't & Guidance Serv., 409 F.3d 565, 569 (2d Cir.2005)). Although plaintiff has not submitted any evidence in opposition to defendant's motion, plaintiff's complaint attaches his submission to the EEOC, and defendant attaches plaintiff's sworn responses to defendant's interrogatories. Plaintiff's complaint, liberally Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 43 of 47 PageID #: 249 Renaud v. Federal Exp. Corp., Not Reported in F.Supp.2d (2012) 2012 WL 34089 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 construed, alleges an inference of discrimination based upon three different grounds: comments made by his supervisor, the preferential treatment of another employee who is not black or Trinidadian, and the treatment of an unidentified black employee. 1. Plaintiff's Supervisor's Statements *5 In his sworn interrogatory responses, plaintiff asserts that he heard Senior Manager Shelley Simes state that he was profiled by the security officer in Atlanta because he is a black man from Trinidad, and that he would not have been investigated if he were white. (Interrog.Nos.11, 19.) His complaint to the EEOC states that he “overheard” his supervisor's comment, but the record provides no evidence as to the time or context of the alleged statement. (Compl.8) Further, plaintiff states that, other than his reference to Simes' statement, no FedEx employee has made derogatory comments about his race, color, or national origin, and that he does not recall ever reporting or complaining about discriminatory conduct while employed at FedEx. (Def.'s 56.1 Stmt. ¶ 46; Interrog. Nos. 13, 19.) In her declaration attached to the instant motion, Simes denies stating or even thinking that plaintiff was racially profiled, or that FedEx security personnel inspected plaintiff's package due to his race, color, or national origin. (Simes Decl. ¶ 7.) While a plaintiff can establish an inference of discrimination by demonstrating “bias in the sequence of events leading to the plaintiff's discharge,” plaintiff fails to establish such bias in this case. Velez, 2009 WL 3817461, at *8 (quoting Abdu-Brisson v. Delta Air Lines. Inc. 239 F.3d 456, 468 (2d Cir.2001) (quotation marks omitted)); Vahos v. General Motors Corp., No. 06-CV-6783 (NGG)(SMG), 2008 WL 2439643, at *5 (E.D.N.Y. Jun. 16, 2008) (“impermissible bias of a single individual ... may taint the ultimate employment decision ... even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the ... process”) (alteration in original) (quoting Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107, 125-26 (2d Cir.2004) (quotation omitted)). Here, assuming Simes made the statement that plaintiff was profiled by the security officer who opened the package in Atlanta, 7 there is no evidence in the record to support that the security officer played a meaningful role in the employer's decision to terminate plaintiff's employment. To draw the inference of discrimination that plaintiff seems to allege-that the security officer inspected plaintiff's package because plaintiff was a black Trinidadian, and that the biased officer played a meaningful role in the company's decision to terminate plaintiff-“would require a finder of fact to engage in wholesale- and wholly impermissible-speculation.” Butler v. New York Health & Racquet Club, 768 F.Supp.2d 516, 535 (S.D.N.Y.2011). 2. Disparate Treatment of another Employee who Violated Policy 7-35 Plaintiff also alleges that he was discriminated against because he was treated differently than Russ A. Battle, a non- Black, non-Trinidadian employee who works out of the Port St. Lucie, Florida FedEx station. (Def.'s 56.1 Stmt. ¶¶ 51- 52.) In 2009, Battle was terminated for violating Policy 7- 35 by “allowing his FedEx reduced rate shipping account to be used to ship a non-profit package to his wife's business for a commercial business use.” (Def.'s 56.1 Stmt. ¶ 55.) He was subsequently reinstated during the company's internal grievance process, though he was issued a disciplinary letter, a one-week unpaid disciplinary suspension, and a twelve- month suspension of his discount shipping privileges. (Id. ¶ 55; Price Decl. ¶ 5, ECF No. 26-7.) 8 *6 To establish an inference of discrimination by comparing himself to Battle, plaintiff must demonstrate “that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000) (citations omitted). Plaintiff must show that he was similarly situated to his comparator “in all material respects.” Id. What constitutes “all material respects”... varies somewhat from case to case and ... must be judged based on (1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness. In other words, there should be an objectively identifiable basis for comparability. Id. at 40 (citation and quotation omitted). In the Second Circuit, courts routinely compare the employees' job positions and responsibilities, Martin v. State Univ. of New York, 704 F.Supp.2d 202, 226 (E.D.N.Y.2010); whether the employees Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 44 of 47 PageID #: 250 Renaud v. Federal Exp. Corp., Not Reported in F.Supp.2d (2012) 2012 WL 34089 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 are subject to the same standards governing performance evaluation and discipline, Hadman v. Sebelius, No. 09- CV414 (ARR), 2011 WL 4736972, at *6 (E.D.N.Y. Oct.6, 2011); and whether or not the employees reported to the same supervisor, Conway v. Microsoft Corp., 414 F.Supp.2d 450, 465 (S.D.N.Y.2006). Plaintiff fails to establish that he and Battle were similarly situated in all material respects. They held different positions with different responsibilities, reported to different supervisors, and were subject to different performance standards. Battle is a non-managerial, hourly Service Assurance Agent supervised by Operations Manager Scott Price. (Def.'s 56.1 Stmt. ¶¶ 52, 54, 56). Plaintiff was a salaried Operations Manager who supervised service agents like Battle and was supervised by Shelley Simes. Plaintiff's job included various supervisory responsibilities that were not part of Battle's job description, and FedEx holds Operation Managers to higher performance standards than hourly employees with respect to compliance with corporate policies. (Id. ¶¶ 1-3, 53.) Further, plaintiff has not shown that Battle's violation of Policy 7-35 was of comparable seriousness. Plaintiff was terminated for numerous violations of Policy 7-35. (Id. ¶¶ 5-6.) In contrast, Battle was initially terminated for a single violation of Policy 7-35, and he was reinstated after his supervisor determined that this policy infraction was “a single, one-time incident of which he was not aware....” (Id. ¶ 55.) “When a plaintiff's misconduct is objectively more serious than that of a proposed comparator, differential treatment by the employer does not create an issue of fact that will defeat a motion for summary judgment.” Conway, 414 F.Supp.2d at 464 (citations omitted). Thus, plaintiff has not shown that there is a “reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases,” and he fails to establish an inference of discrimination based on disparate treatment. Ruiz, 609 F.3d at 494 (quoting Graham, 230 F.3d at 40). 3. Plaintiffs Statements about an Unidentified Black Employee *7 In his complaint to the EEOC, plaintiff states that “[i]t has come to my attention that a similar situation also occurred to another Black employee at the Florida location, where the employee was readily terminated and not given much opportunity to react to the situation.” (Compl.8.) The record contains no admissible evidence-or any other information- about this Florida employee. Further, in plaintiff's response to defendant's interrogatory request to identify “all other FedEx employees who you contend were discriminated against on the basis of their race, color, and/or national origin,” he stated, “None I'm presently aware of.” (Interrog.No. 12.) Plaintiff's single reference to this employee in his complaint to the EEOC is conclusory and unsupported by the record; this statement is thus insufficient to establish any inference of discriminatory intent. See Gambello v. Time Warner Commc'ns. Inc., 186 F.Supp.2d 209, 224 (E.D.N.Y.2002) (claims by co-workers that employees in plaintiff's protected class “were treated less favorably, without evidence of specific instances to support such allegations, are too general and conclusory” to support an inference of discrimination) (citation omitted). For the reasons stated above, plaintiff fails to establish an inference of discriminatory intent to satisfy the fourth prong of his prima facie case. B. Defendant establishes a legitimate nondiscriminatory reason for termination Even assuming that plaintiff had established a prima facie case, defendant has met its burden of providing a legitimate, nondiscriminatory reason for plaintiff's termination. FedEx terminated plaintiff's employment for violating Policy 7- 35, which expressly states that “[i]mproper use or abuse of employee discount shipping privileges ... is considered a policy violation and subjects the employee to discipline, up to and including termination....” (Def.'s 56.1 Stmt. ¶¶ 5, 11.) “Discharging an employee for violating company policies constitutes a legitimate and nondiscriminatory reason for terminating employment .” Welland v. Citigroup, Inc., No. 00 Civ. 738(NRB), 2003 WL 22973574, at *6 (S.D.N.Y. Dec.17, 2003) (citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir.1997)). C. Plaintiff fails to establish that defendant's reason is a pretext for discrimination Once an employer articulates a legitimate, nondiscriminatory reason for the plaintiff's termination, the burden shifts back to the plaintiff to prove that the legitimate reason offered by the defendant was a pretext for discrimination. Ruiz, 609 F.3d at 492. At this stage, the question becomes whether the evidence, taken as a whole and viewed in the light most favorable to plaintiff, would permit “a rational finder of fact [to] conclude that the adverse action taken against [plaintiff] was more likely than not a product of discriminatory animus.” Leibowitz v. Cornell Univ., 584 F.3d 487, 504 (2d Cir.2009) (citation omitted). The court may consider “the strength Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 45 of 47 PageID #: 251 Renaud v. Federal Exp. Corp., Not Reported in F.Supp.2d (2012) 2012 WL 34089 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case.” James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir.2000) (alteration in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. at 148-49). *8 Although plaintiff argues that his termination was not warranted, plaintiff must show that defendant's proffered reasons are pretext for discrimination, not that they are unfair or incorrect. “[I]t is well settled that the mere fact that an employee disagrees with an employer's evaluation of that employee's misconduct or deficient performance, or even has evidence that the decision was objectively incorrect, does not necessarily demonstrate, by itself, that the employer's proffered reasons are a pretext for termination.” Kalra v. HSBC Bank USA, N.A., 567 F.Supp.2d 385, 397 (E.D.N.Y.2008) (citations omitted); see also Rodriguez v. City of New York, 644 F.Supp.2d 168, 187 (E.D.N.Y.2008) (“evidence that the decision was ... based on a faulty investigation” was insufficient to establish pretext) (citations omitted)). There is simply no record evidence that defendant discriminated against plaintiff or departed from permissible disciplinary procedures. See Bickerstaff v. Vassar College, 196 F.3d 435, 453 (2d Cir.1999) ( “[d]epartures from procedural regularity ... can raise a question as to the good faith of the process where the departure may reasonably affect the decision”) (alterations in original) (quoting Stern v. Trustees of Columbia Univ. in the City of New York, 131 F.3d 305, 313 (2d Cir.1997). While the Court understands that losing his supervisory position after being employed by FedEx for many years is a significant hardship for plaintiff and his family, and that plaintiff strongly believes that he was terminated without being given the opportunity to state that “this was an accident” (Compl.8), there is no record evidence to support that the adverse action taken against plaintiff was “more likely than not a product of discriminatory animus.” Leibowitz v. Cornell Univ., 584 F.3d at 504. CONCLUSION Accordingly, defendant's motion for summary judgment is granted. The Clerk of Court shall enter judgment and close this case. Each party shall bear their own costs. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2012 WL 34089 Footnotes 1 Defendant provided plaintiff with the requisite notice to pro se litigants pursuant to Local Rule 56.2. (ECF Nos. 28-29.) 2 Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 56.1”) requires a party moving for summary judgment to submit “a separate, short and concise statement” of the allegedly undisputed material facts, set out in numbered paragraphs, on which the moving party relies in arguing that there is no genuine issue to be tried. See Local Rule 56.1(a); see also Giannullo v. City of New York. 322 F.3d 139, 140 (2d Cir.2003); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 72 (2d Cir.2001). Defendant filed a 56.1(a) statement, but plaintiff did not file a corresponding statement or oppose defendant's motion. As such, the Court may deem the facts in defendant's Rule 56.1 statement admitted. See Local Rule 56.1(c). However, the Court may not rely solely on the statement of undisputed facts contained in defendant's Rule 56.1 statement; “[i]t must be satisfied that the citation to the evidence in the record supports the assertion.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). Accordingly, the Court deems admitted only those facts in defendant's Rule 56.1 statement that are supported by admissible evidence and not controverted by the record. In addition to its Rule 56.1 statement, defendant attaches five exhibits to its Motion for Summary Judgment: plaintiffs responses to defendant's requests for admission and interrogatories, and the declarations of Shelley Simes, Scott Price, and Tracey Ferrara. (ECF Nos. 26-4-26-8.) The Court refers to those exhibits instead of defendant's Rule 56.1 statement where appropriate. 3 Policy 7-35 contains a number of restrictions on the use of the employee discount shipping rate. The policy prohibits use of the discount for any business or commercial purpose, requires every package shipped under the discount to reference the employee's FedEx ID number, and requires employees to report any “unauthorized use or abuse” of their discount shipping privileges to FedEx. (Def.'s 56.1 Stmt. ¶¶ 17, 20, 30.) Further, employees are required to ensure that “only authorized shipping charges have been billed to their credit card” and that “immediate family members ... are aware” of the discount shipping restrictions.” (Id. ¶¶ 34, 41.) Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 46 of 47 PageID #: 252 Renaud v. Federal Exp. Corp., Not Reported in F.Supp.2d (2012) 2012 WL 34089 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 7 4 The terms and conditions in the FedEx Service Guide provide that FedEx “may, at our sole discretion, open and inspect any shipment without notice.” (Def.'s 56.1 Stmt. ¶ 25.) Defendant maintains that plaintiff agreed to those terms and conditions by completing an Airbill for the June 24, 2009 package. (Id.) 5 Defendant submits plaintiff's termination letter and several internal documents related to plaintiff's policy violations, which were attached to Defendant's Request for Admissions. The internal investigation documents include statements signed by plaintiff on July 8, 2009 and July 10, 2009, as well as an unsigned and undated statement. (ECF No. 26-4 at 22, 40-42.) Further, plaintiff's response to Defendant's Request for Admission No. 43 references a compact disc recording of “two interviews that you gave to FedEx security personnel.” (Pl.'s Resp. to Def.'s Req. for Admis. (“Admis.”) No. 43, ECF No. 26-4.) 6 The Court references the ECF page numbers listed on the top of each page. 7 “Generally, a plaintiffs naked assertion against sworn testimony does not raise a genuine issue of material fact....” Desir v. Bd. of Co-op. Educ. Servs. (BOCES) Nassau Cnty., No. 07-CV-1994 (RRM)(ARL), 2011 WL 1204631, at *6 (E.D.N.Y. Mar. 29, 2011) (quotation and citation omitted). However, for the purposes of the motion, the Court assumes that Simes made the comment. 8 Defendant submits an affidavit from Battle's supervisor, Operations Manager Scott Price. (ECF No. 26-4.) Plaintiff also attaches documents related to Battle's internal grievance process to his interrogatory responses. Neither party proffers that FedEx's internal investigation reports are admissible evidence. Although investigatory reports can at times be admitted as business records under the hearsay exception, or for purposes other than the truth of the matter asserted, here the Court considers those reports for background only. See Vahos, 2008 WL 2439643, at *4 (“Evidence submitted in support of a summary judgment motion must be admissible, and the proponent of the evidence bears the burden of showing that the evidence is admissible.”) (citing Patterson v. Cnty. of Oneida, 375 F.3d 206, 219-20, 222 (2d Cir.2004)). End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:15-cv-01118-LDH-ST Document 34-4 Filed 07/22/16 Page 47 of 47 PageID #: 253