The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
ELEANOR GRAZIANO,
Plaintiff, MEMORANDUM & ORDER
17-CV-1349(JS)(AKT)
-against–
FIRST CHOICE MEDICAL, PLLC, and LISA
COHEN and DR. LAWRENCE GOLDMAN, M.D.
individually and in their official
capacities and aiders and abettors,
Defendants.
------------------------------------X
APPEARANCES
For Plaintiff: Matthew Scott Porges, Esq.
Law Office of Matthew S. Porges, Esq.
641 President Street, Suite 205
Brooklyn, New York 11215
For Defendants: Joshua S. Beldner, Esq.
Eric S. Tilton, Esq.
Tilton Beldner LLP
193 East Main Street
Babylon, New York 11702
SEYBERT, District Judge:
Plaintiff Eleanor Graziano (“Plaintiff”) alleges that
defendants First Choice Medical, PLLC (“First Choice”), Lisa Cohen
(“Cohen”), and Dr. Lawrence Goldman, M.D. (“Dr. Goldman”)
discriminated against her due to her pregnancy in violation of
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et
seq.) (“Title VII”), the New York State Human Rights Law (N.Y.
EXEC. LAW § 290 et seq.) (“NYSHRL”), and the Suffolk County Human
Rights Law (Suffolk County Administrative Code § 528-7) (“County
Code”). (Am. Compl., D.E. 14.) Presently pending before the Court
is Defendants’ motion for summary judgment and attorneys’ fees.
(Def. Mot., D.E. 53.) For the following reasons, Defendants’
request for summary judgment is GRANTED and their motion for fees
is DENIED.
BACKGROUND
I. Factual Background!
1 Unless noted, all facts are undisputed. However, at the
outset, the Court must address issues with the parties’ Rule
56.1 Statements. In Plaintiff’s Counterstatement, she often
admits that a party wrote what is quoted or testified to what is
quoted in Defendant’s Rule 56.1 Statement. These statements by
Defendant, to the extent otherwise admissible, are “deemed to be
admitted for purposes of the motion [because they are not]
specifically controverted by a correspondingly numbered
paragraph in [Plaintiff’s] statement . . .” Local Rule 56.1(c).
Additionally, Defendants filed several “written statements” and
emails from employees in support of their motion. (See Tilton
Aff., D.E. 55, 55-6, 55-7, 55-8, 55-9.) For example, in one
email, from “lisn3@optonline.net” to “rakpcl@aol.com,” an
individual who typed “Dr. Deborah Schaeffer” at the bottom of
the email writes “I was asked to write down things about Eleanor
Graziano Hope this is ok.” (D.E. 55-9.) As “[eJach 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)[,]”
and the Court has serious concerns about the admissibility of
these written statements and emails, the Court will not consider
them on this motion. The Court will, however, consider the
following: Plaintiff’s Deposition (Graziano Dep., D.E. 55-1, pp.
1-71 & D.E. 55-2, pp. 78-153); Dr. Goldman’s Deposition (Goldman
Dep., D.E. 55-3); Cohen’s Deposition (Cohen Dep., D.E. 55-4);
and Fontana’s Deposition (Fontana Dep., D.E. 55-5). The Court
will also consider the Declarations of Dr. Goldman (Goldman
Decl., D.E. 56) and Cohen (Cohen Decl., D.E. 57), which are both
Signed statements made “under penalty of perjury.”
At various points over the years, First Choice had three
offices: Riverhead, Holbrook, and Eastport. Since 2001, Dr.
Goldman has been the sole owner of the practice. (Def. Rule 56.1
Stmt. (“Def. Stmt.”), D.E. 54, IF 1-9.) Plaintiff began working
for First Choice in October 2003 as a front desk worker in the
Riverhead office. A few years later, she was transferred to the
billing department. In both positions, she reported directly to
Adeline Fontana (“Fontana”), the Riverhead office manager. (Def.
Stmt., FTI 17-18, 20-21, 24.) All employees at the Riverhead office
reported to Fontana, who reported directly to Dr. Goldman. (Def.
Stmt. FT 16.) Shortly thereafter, Plaintiff was promoted to
assistant office manager. In that position, she had supervisory
authority over the Riverhead office’s front desk workers and
medical assistants and was in charge when Fontana was not present.
(Def. Stmt. FJ 25-27.) In 2012, First Choice closed its Riverhead
office. (Def. Stmt. I 28.) Fontana became the office manager of
the Holbrook office and Plaintiff became the assistant office
manager of the Holbrook office. (Def. Stmt. 7 31.) From 2003 to
2017, Cohen was the office manager in Eastport. (Def. Stmt. 7 12.)
A. Plaintiff’s Job Performance
The record demonstrates that Plaintiff had issues with
coworkers and patients well before she announced her pregnancy.
Dr. Goldman testified that Plaintiff “had not been acting
appropriate with staff, she had been nasty.” (Goldman Dep. 31:15-
17.) Employees complained about Plaintiff being rude, which
Fontana had to deal with as office manager. (Def. Stmt. ¶ 87.)
At first, Fontana supported Plaintiff because she believed she was
just enforcing the rules; however, there came a point when she “no
longer could defend her.” (Fontana Dep. 71:4-15.) Cohen testified
that Plaintiff “wasn’t performing her job as an assistant manager.
She was being aggressive and abusive with the employees and she
had reprimand issues.” According to Cohen, Dr. Goldman did not
attribute these issues to Plaintiff’s pregnancy because they had
“been going on for years.” (Cohen Dep. 27:9-21.) At her
deposition, Plaintiff admitted that her behavior toward her
colleagues was inappropriate at times and acknowledged patient
complaints against her. (See, e.g. Def. Stmt. ¶¶ 41-42, 54-57,
66-67, 73-74.) On January 16, 2015, Fontana warned Plaintiff that
if one more complaint was received against her, she would be fired.
(Def. Stmt. ¶ 114.)
Dr. Goldman and Fontana decided to remove Plaintiff as
assistant office manager at the “end of 2014, beginning of the
year in [20]15 . . . before . . . the announcement of [her]
pregnancy.” (Goldman Dep. 33:24-34:13.) Plaintiff testified that
she was not informed of the demotion until January 27, 2015. The
title was taken away because “she was having bad conversations--
she was abrupt with the staff. She was abrupt with patients. She
was condescending to a lot of the staff. She was--her human
resources skills were very in question.” (Goldman Dep. 34:21-
35:4.) There was no corresponding reduction in salary or benefits.
(Def. Stmt. FI 91.) Plaintiff claims that when she lost her
assistant office manager title, Dr. Goldman told her he was
demoting her because she was “hormonal.” (Graziano Dep. 95:10-
23.) Dr. Goldman denies ever telling her she was hormonal.
(Goldberg Dep. 44:23-45:2). Cohen never heard Dr. Goldman call
Plaintiff hormonal. (Cohen Dep. 27:25-28:3.)
When asked why he did not terminate Plaintiff due to her
performance issues, Dr. Goldman answered that “she had a situation
at home where her husband had been unemployed for lengths of time,
pregnancy, for a variety of reasons I chose to keep her and
maintain her employment. I had known her for upwards of almost 15
years at that point. You don’t trash a long-term relationship.”
(Goldman Dep. 41:17-24.)
B. Plaintiff’s Pregnancy Announcement and Leave
Plaintiff learned she was pregnant in December 2014.
She told Dr. Goldman at some point in January 2015, and he said
“mazel” or “congratulations.” (Def. Stmt. G1 95-97.) Plaintiff
also attempted to make an announcement to her other colleagues at
a billing meeting in January 2015, but she was emotional and unable
to get the words out, so Fontana announced it to everyone.
Everyone seemed happy for her. (Def. Stmt. FTI 109-11; Graziano
Dep. 65:20-66:17.)
Plaintiff states that at this same meeting, Cohen told
her that she might not have a job to return to because of a new
computer program. (Graziano Dep. 66:23-67:8; 69:8-14.) Dr.
Goldman stated that Plaintiff “would have to be trained when she
returned” but that it would not “take away any of the work she was
doing.” (Goldman Dep. 33:19-23.) Cohen similarly testified that
Plaintiff would have been trained on the program and required to
use it when she returned; she denies telling Plaintiff that the
program might mean she would not have a job to come back to. (Def.
Stmt. ¶¶ 147-48.)
Although the timing is less than clear from the parties’
submissions, it appears that Dr. Goldman and Fontana decided to
demote Plaintiff before she announced her pregnancy; Fontana told
Plaintiff on January 16, 2015 that she would be fired if there was
one more complaint against her before the billing meeting where
she announced her pregnancy to the staff; she announced her
pregnancy to Dr. Goldman in mid-January 2015; the billing meeting
occurred sometime in mid-January 2015; and Plaintiff was informed
of her demotion on January 27, 2015.
Dr. Goldman testified he “think[s] people can get
pregnant whenever they want to and it’s a beautiful thing.”
(Goldman Dep. 28:7-9.) Approximately 13 women who worked for
Dr. Goldberg over the years became pregnant, went out on maternity
leave, and returned to work. (Def. Stmt. ¶ 104.) Plaintiff had
never seen anything that would suggest Dr. Goldman was anything
but happy for a pregnant employee. (Def. Stmt. ¢ 102.) Plaintiff
also believed Dr. Goldman was happy for her personally. (Def.
Stmt. II] 98, 101.)*
On February 4, 2015, Plaintiff was admitted to the
hospital for pre-term labor. She stayed for five days and was on
bed rest for the remainder of her pregnancy. She returned for a
scheduled C-section on February 26, 2015. (Def. Stmt. TAT 116-19.)
Plaintiff applied for short term disability benefits on
February 9, 2015. The benefits were set to expire on Friday,
April 24, 2015. She was scheduled to return to work the following
Monday, April 27, 2015. Plaintiff reached out to Fontana in mid-
March and told her she wanted to return to work on April 27. (Def.
Stmt. FTI 117, 120-21.)
Sometime later, Cohen, Fontana and another employee took
a few personal items Plaintiff had left in her desk and boxed them
up. These included documents related to Plaintiff’s daughter,
personal bills, snacks, and a cup. They removed the items because
2 The deposition transcript reads as follows:
Q: Based on your conversation . . . did you think that [Dr.
Goldman] was happy for you?
A: I do. I never thought he was unhappy for me, we’ll get that
straight.
Q: Okay.
A: And that’s the truth.
Q: You never thought he was unhappy for you?
A: I never ever thought.
(Graziano Dep. 64:24-65:9.)
someone else needed to use the desk while Plaintiff was out.
Fontana brought the box to Plaintiff’s home. (Def. Stmt. WI 157-
61.)
At some point during her maternity leave, Plaintiff’s
OB/GYN, who appears to have known Dr. Goldman, called him and told
him Plaintiff had indicated some job stress. Dr. Goldman replied
that Plaintiff was “lucky to have a job.” He testified that he
made this comment because of Plaintiff’s issues with her co-workers
and patients. (Def. Stmt. FTI 153-55.) There is no indication
that he told the OB/GYN that she was lucky to have a job because
she was pregnant. According to Fontana, the OB/GYN said Dr.
Goldman told her he wanted to fire Plaintiff and had a “paper
trail.” (Pl. Additional Stmt., D.E. 61-1 at 15-18, FI 20.) Dr.
Goldman disputes this. (Def. Counterstmt., D.E. 64, @ 20-20.1.)
Cc. Plaintiff Does Not Return
According to Dr. Goldman, “when [Plaintiff] left, she
knew she had a job to come back to” and Plaintiff’s “employment
finally came to an end [when] [s]he did not show up to work.”
(Goldman Dep. 42:25-43:2, 42:2-4.) Fontana also believed that
Plaintiff would be returning to work on April 27, after her
maternity leave. Fontana resigned from First Choice in April 2015;
prior to leaving, she left a note in the office that said “El back
4/27," veferring to Plaintiff’s anticipated return from maternity
leave. (Def. Stmt. JF 123.)
In April, Cohen reached out to Plaintiff about her
return. She spoke to Plaintiff’s husband, who said Plaintiff would
call Cohen back. (Def. Stmt. ¶ 124.) She called again on April
20 and left Plaintiff a voicemail: “Hi Eleanor, it’s Lisa. It is
almost 11:30 on Monday morning. If you can please give me a call
back either in the Eastport office, I should be here for another,
like hour or two or you can call me on my cell phone, I’m sure you
have the number or you can give me a call later in Holbrook. I
would appreciate it. I would love to talk to you. I just have a
real quick question and hope all is well with you.” (Def. Stmt.
¶ 125.) Plaintiff did not respond to the voicemail.
On April 21, Dr. Goldman texted Plaintiff: “I know that
Lisa reached out to you yesterday. I would appreciate if you would
call her sometime today.” He followed up with “Hi. [I know] you
read the message. Please contact Lisa by tomorrow the latest.”
Later that day, he wrote “Need to speak to Lisa to coordinate your
hours.” Plaintiff did not respond to any of Dr. Goldman’s text
messages. (Def. Stmt. ¶¶ 127-29.) The next day, he wrote “Please
show up at Eastport Monday morning for work.” She did not respond,
and she did not show up to work on April 27 as scheduled. (Def.
Stmt. ¶¶ 130-32.)
Plaintiff testified that she went on a job interview for
another position on April 20. (Graziano Dep. 126:14-24.) She
also filed a complaint against Defendants with the New York State
Division of Human Rights on April 24. (Def. Stmt. ¶ 200; Human
Rights Complaint, Pl. Ex. 4, D.E. 1, at ECF pp. 14-25.)
Dr. Goldman did not believe Plaintiff had been
terminated and he never told Cohen or Fontana to terminate her.
(Def. Stmt. ¶¶ 140-42.) Plaintiff testified that no one at First
Choice ever told her she was terminated. Dr. Goldman never told
her she was terminated, Cohen never told her she was terminated,
and Fontana never told her she was terminated. (Graziano Dep.
128:3-18.)
At some point, First Choice’s bookkeeper wrote
“terminated 4/27/15” on Plaintiff’s personnel file. (Pl. Stmt.
¶ 18; Def. Counterstmt., ¶ 18.1.) In an unrelated case, that
bookkeeper filled out a form for an investigative agency that
stated that Plaintiff had been terminated on February 27, 2015.
Next to “reason stated,” the bookkeeper wrote “she never showed up
for her shift.” (Pl. Additional Stmt. ¶ 19; Def. Counterstmt.
¶ 19.1.) Defendants maintain that the February 27, 2015 date on
the form was a typographical error. (Def. Counterstmt. ¶ 19.1.)
Regarding her failure to return, Plaintiff testified
that
I wouldn’t have my job as assistant manager
but I didn’t want to go back to a hostile
environment. I didn’t want to go back to--
while I was out, I heard stories. Karen
Merrill came to my home. You really don’t
want to come back there, it’s not the same
anymore. Lisa [Cohen] had became practice
manager.* I guess things have changed, rules
must have changed. I wasn’t there so I don’t
know. I just know from what I was told.
(Graziano Dep. 102:19-103:7.)
II. Procedural History
Plaintiff filed a pro se Complaint on February 27, 2017.
(Compl., D.E. 1.) On June 15, 2017, with counsel, she filed an
Amended Complaint. (See Am. Compl.) Defendants filed a motion to
dismiss, (see D.E. 19) which Judge Joseph F. Bianco denied, □□
(Order, D.E. 34; Tr., D.E. 36). Defendants now move for summary
judgment (see Def. Mot.); Plaintiff opposed (Pl. Opp., D.E. 61);
and Defendants replied (Def. Reply, D.E. 64-2).
DISCUSSION
I. Legal Standard
A. Summary Judgment
Summary judgment will be granted where the movant
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
3 The Court notes that Cohen testified that Plaintiff and Fontana
were “very close” (Cohen Dep. 36:11-12) and that in her New York
State Division of Human Rights Complaint, filed on April 24,
2017, she listed Fontana as a “friend” and contact person (Human
Rights Compl. at ECF p. 23). Plaintiff had told Fontana she
would be returning in mid-March; as of April 17, apparently
coinciding with Fontana’s resignation, Plaintiff no longer
wished to return. (Graziano Dep. 115:13-116:8.)
4 After the summary judgment motion was fully briefed, the matter
was reassigned to the undersigned.
11
Fed. R. Civ. P. 56(a). A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986). In
determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, 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).
The movant bears the burden of establishing that there
are no genuine issues of material fact. Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). Once
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.” Giglio
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted). Conclusory allegations or denials will not defeat
summary judgment. Id. However, in reviewing the summary judgment
record, “‘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.’” Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
“{S]ummary judgment may be appropriate even in the fact-
intensive context of discrimination cases,” Westbrook v. City
Univ. of N.Y., 591 F. Supp. 2d 207, 222 (E.D.N.Y. 2008) (internal
quotation marks and citation omitted), and “the non-moving party
may not rely on mere conclusory allegations nor speculation, but
instead must offer some hard evidence showing that its version of
the events is not wholly fanciful,” Woodman v. WWOR-TV, Inc., 411
F.3d 69, 75 (2d Cir. 2005); see also Baffa v. STAT Health Immediate
Med. Care, P.C., No. 11-CV-4709, 2013 WL 5234231, at *7 (E.D.N.Y.
Sept. 17, 2013) (in a pregnancy discrimination case, noting that
“summary judgment remains available for the dismissal of
discrimination claims in cases lacking genuine issues of material
fact”) (internal quotation marks and citation omitted).
B. Discrimination Law
Title VII prohibits discrimination on the basis of
gender, and “[t]he Pregnancy Discrimination Act amended Title
VII’s definition of gender discrimination to include disparate
treatment “‘because of or on the basis of pregnancy, childbirth,
or related medical conditions.’” Baffa, 2013 WL 5234231 at *7
(quoting Title VII § 2000e(k) and citing Saks v. Franklin Covey
Co., 316 F.3d 337, 343 (2d Cir. 2003)). The Court will analyze
Plaintiff’s NYSHRL claims with her Title VII claims, “‘as disparate
treatment claims brought under Title VII . . . and the NYSHRL are
[] analyzed under the same standard.’” Kizer v. Abercrombie &
13
Fitch Co., No. 12-CV-5387, 2018 WL 6106853, at *5 (E.D.N.Y.
Nov. 20, 2018) (quoting Johnson v. Long Island Univ., 58 F. Supp.
3d 211, 220 (E.D.N.Y. 2014)).
Employment discrimination claims are analyzed under the
burden-shifting framework the Supreme Court established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973). See also Ruiz v. Cty. of Rockland, 609 F.3d
486, 491 (2d Cir. 2010); Holcomb v. Iona Coll., 521 F.3d 130, 138
(2d Cir. 2008). That framework requires a plaintiff to first
establish a prima facie case of discrimination. To establish a
prima facie case of discrimination, a plaintiff must show that:
“(1) [s]he is a member of a protected class; (2) [s]he was
qualified for the position [s]he held; (3) [s]he suffered an
adverse employment action; and (4) the adverse action took place
under circumstances giving rise to [an] inference of
discrimination.” Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.
2012) (quoting Ruiz, 609 F.3d at 491–92). If the plaintiff
establishes a prima facie case, the burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for
the adverse employment action. Holcomb, 521 F.3d at 138. Once
the defendant employer provides such a reason, “the presumption of
discrimination is rebutted and it simply drops out of the picture.
The burden then shifts back to the plaintiff to show, without the
benefit of any presumptions, that a reasonable jury could conclude
that more likely than not the employer’s actions were motivated,
at least in part, by a discriminatory reason.” Baffa, 2013 WL
5234231 at *8 (internal quotation marks and citations omitted).
IIT. Application
Defendants concede that Plaintiff is a member of a
protected class who was qualified for the position she held,
satisfying the first two McDonnell Douglas factors, but argue that
she did not suffer an adverse employment action under circumstances
giving rise to an inference of discrimination, and thus has not
established the third and fourth factors under prima facie test.
(Def. Br., D.E. 58, at 10-11, 19-21.) They contend that even if
the Court were to find Plaintiff established a prima facie case,
they have offered legitimate non-discriminatory reasons for their
acts and that Plaintiff has failed to show those reasons were
pretextual. (Def. Br. at 21-23.)
Regarding adverse employment action, Plaintiff responds
that although her “employment came to an end in a truly confusing
manner . . . there was, in fact, a termination.” (Pl. Opp. at
10.) In contrast, her Amended Complaint® states that she was “due
to return to work . . . but did not do so. At that point, [she]
had determined that she could not continue working for Defendants
° Defendants make much of the fact that Plaintiff’s Amended
Complaint asserted effective termination for the first time.
The Court attaches little significance to this, as Plaintiff
filed previous documents without the assistance of counsel.
15
because she could no longer tolerate Defendants’ pregnancy-based
harassment. However, prior to that date, [Plaintiff] had been
effectively terminated.”& (Am. Compl. II 23-24.) As to the fourth
element, she argues that there are genuine issues of material fact
regarding whether she was terminated under circumstances giving
rise to discrimination. (Pl. Opp. at 11.) Plaintiff does not
address Defendants’ claim that their actions were for legitimate
non-discriminatory reasons related to poor job performance, but
contends that the inconsistencies in Defendants’ accounts of her
employment demonstrate a pretext for pregnancy discrimination.
(Pl. Opp. at 13-14.)
A. Prima Facie Case
1. Adverse Employment Action
Plaintiff concedes she was not formally terminated,
acknowledging that she chose not to return. She appears to argue
that she was effectively terminated. The Court does not agree.
A constructive discharge “occurs when an employer,
rather than directly discharging an individual, intentionally
creates an intolerable work atmosphere that forces an employee to
quit involuntarily. Working conditions are intolerable if they
are so difficult or unpleasant that a reasonable person in the
6 Plaintiff uses the phrase “effective termination.” This Order
uses that term interchangeably with “constructive termination”
or “constructive discharge.”
16
employee’s shoes would have felt compelled to resign.” Kalp v.
Kalmon Dolgin Affiliates of Long Island Inc., No. 11-CV-4000, 2013
WL 1232308, at *9 (E.D.N.Y. Mar. 27, 2013) (quoting Serricchio v.
Wachovia Sec. LLC, 658 F.3d 169, 185 (2d Cir. 2011)).
It is difficult to discern what hostile environment
related to her pregnancy Plaintiff perceived while out on maternity
leave that made her feel as though she could not return. To the
contrary, she testified that everyone, including Dr. Goldman, was
happy for her about her pregnancy. The Court notes that Plaintiff
has not brought claims for a hostile work environment or
retaliation. Her Amended Complaint alleges only that she was
discriminated against based on her pregnancy because she was
terminated. (Am. Compl. ¶¶ 26, 29.)
As to the specific issues raised by Plaintiff, first,
whether Dr. Goldman made the hormonal comments presents an issue
of fact, but it is not material. “[S]tray remarks, even if made
by a decisionmaker, do not constitute sufficient evidence to make
out a case of employment discrimination.” Kizer, 2018 WL 6106853
at *6; see also Klein v. Safelite Grp., Inc., No. 16-CV-0726, 2018
WL 3105412, at *6 (D.N.J. June 25, 2018) (“the comment allegedly
made by [a manager] to the effect that [an employee’s] hormones
were talking fails to establish that Defendant’s reasons for
terminating Plaintiff were pretext for pregnancy
discrimination.”). In the context of the entire record, including
Plaintiff’s own admissions that Dr. Goldman was genuinely happy
for her about her pregnancy, the comment is a stray remark.
Further, Plaintiff’s reliance on what her obstetrician
told Fontana about her conversation with Dr. Goldman is premised
on inadmissible hearsay, and “[c]ourts do not consider
inadmissible hearsay when resolving a summary judgment motion.”
Kizer, 2018 WL 6106853 at *5 (collecting cases where hearsay
statements were not considered in employment discrimination
matters). In any event, even if this Court were to consider it,
Fontana testified that Dr. Goldman told the OB/GYN he wanted to
fire Plaintiff and had a paper trail so he could do so. Fontana
never stated that Dr. Goldman indicated he wanted to fire Plaintiff
because she was pregnant. (Fontana Dep. Excerpt, D.E. 61-3, at
ECF pp. 90-104, 50:19-52:25.)
Second, Fontana dropping off some personal items from
Plaintiff’s desk simply does not lend support to her claim that
she was effectively terminated. Unrefuted evidence regarding the
motivation behind this act shows that another employee was going
to use Plaintiff’s desk temporarily while she was out on leave, so
they returned personal items to Plaintiff so they would not be
misplaced or misused. Third, even if Cohen made the stray comment
regarding the billing program and Plaintiff’s job, the undisputed
evidence shows that Cohen and Dr. Goldman reached out to tell
Plaintiff she did have a job to return to, and she ignored them.
Last, the bookkeeper’s notation on a form that Plaintiff had been
terminated on February 27 can be nothing other than a typo. The
“reason stated” was “she never showed up for her shift,” which all
parties agree occurred on April 27. And on Plaintiff’s file, the
same bookkeeper had written the termination date as April 27.
Finally, as noted, Cohen and Dr. Goldman had contacted Plaintiff
well after February regarding her anticipated return.
“These allegations, even when examined collectively, do
not constitute employment conditions that were so intolerable that
a reasonable person would have felt compelled to resign.” Kalp,
2013 WL 1232308 at *10. And again, none of the issues Plaintiff
complains of are linked to her pregnancy. As to the “hostile
environment,” Plaintiff testified that Cohen was disrespectful and
abrupt with her and with other, non-pregnant employees. It was
“not based on someone’s pregnancy, [Cohen] was just rude to
people.” (Graziano Dep. 105:14-106:4). She also admitted that
Goldman sometimes lost his temper, but it had nothing to do with
her pregnancy. (Graziano Dep. 107:2-15.) And Plaintiff’s belief
that she did not have a job to come back to is once more completely
belied by the fact that numerous attempts were made to confirm her
return on April 27. Thus, Plaintiff was not terminated, nor was
she effectively terminated, and has failed to demonstrate an
adverse employment action necessary for a prima facie case of
discrimination.
2. Circumstances Giving Rise to Inference of
Discrimination
For the same reasons the Court does not find Plaintiff
was effectively terminated, the Court finds that her employment
did not end under circumstances giving rise to an inference of
discrimination. The Court also notes that many First Choice
employees returned to work after maternity leave over the years.
See Baffa, 2013 WL 5234231 at *13 (noting that “uncontroverted
evidence demonstrate[d] that [the] defendant treats pregnant
employees . . . favorably”). Although Defendants “may not escape
liability for discriminating against [Plaintiff] simply because it
can prove it treated other members of [her] group favorably,” id.
(internal quotation marks and citation omitted; emphasis in
original), this factor buttresses the Court’s conclusion that any
actions taken by Defendants here were related to Plaintiff’s job
performance and not her pregnancy.
B. Legitimate Non-Discriminatory Reason and Pretext
As discussed, this Court does not find that Plaintiff
suffered an adverse employment action under circumstances giving
rise to an inference of discrimination, and thus concludes she has
not made out a prima facie case. However, even if the Court were
to assume Plaintiff had made out a prima facie case, Defendants
have offered legitimate, non-discriminatory reasons for their
actions. The Court has already recounted Plaintiff’s pre-
20
pregnancy performance and discipline issues. Although the Court
does not conclude that any adverse employment action took place,
even if it were to assume an adverse action took place, Defendants
have given legitimate reasons for it.’
In sum, the Court concludes that there was no adverse
employment action under circumstances giving rise to an inference
of discrimination, and Plaintiff has thus failed to make out a
prima facie case of employment discrimination. Further, even if
she had made out a prima facie case, Defendants have demonstrated
legitimate, non-discriminatory, and non-pretextual reasons for
their actions. Defendants are entitled to summary judgment on
Plaintiff’s federal and NYSHRL claims. Finally, the County Code
section listed in Plaintiff’s Amended Complaint states that it is
an unlawful discriminatory practice “[f]lor an employer to compel
an employee who is pregnant to take a leave of absence.” Suffolk
County Human Rights Law § 528-7. This did not occur here, and
Defendants are also entitled to summary judgment on the County
Code claim.
7 Plaintiff makes no specific argument regarding her demotion.
In any event, the Court notes that “‘while timing may be
sufficient to establish an inference of discrimination, the
close proximity of a termination [or, as here, demotion] to the
plaintiff’s announcement of her pregnancy alone is insufficient
to demonstrate a pretext.’” Baffa, 2013 WL 5234231 (quoting
Forde v. Beth Israel Med. Ctr., 546 F. Supp. 2d 142, 152
(S.D.N.Y. 2008)).
21
III. Fees
Defendants seek attorneys’ fees and costs from Plaintiff
because the action is “frivolous, unreasonable, and without
merit.” (Def. Br. at 23.) “[I]f the prevailing party [in a Title
VII action] is the defendant, attorneys’ fees will only be awarded
if the plaintiff’s claim was frivolous, unreasonable, or
groundless, or that the plaintiff continued to litigate after it
clearly became so.” Valenti v. Massapequa Union Free Sch. Dist.,
No. 09-CV-0977, 2012 WL 1038811, at *20 (E.D.N.Y. Mar. 28, 2012)
(internal quotation marks and citation omitted). The Court does
have serious concerns with Plaintiff’s continued litigation of
this case. However, although Plaintiff has not ultimately
prevailed, the Court believes that the proffered reasons for her
belief that she was discriminated against--the hormonal comment,
the computer program comment, and the box of her belongings--
arguably demonstrate a good-faith basis for her position that she
was effectively terminated. “In short, even though the basis for
this lawsuit was extremely thin and the unsuccessful opposition to
the summary judgment motion was very weak, the Court does not
believe attorneys’ fees are warranted under the particular
circumstances of this case.” Valenti, 2012 WL 1038811 at *21.
CONCLUSION
For the foregoing reasons, Defendants’ motion for
summary judgment (D.E. 53) is GRANTED in its entirety on all
22
claims, and the Amended Complaint is DISMISSED in its entirety.
Defendants’ motion for attorneys’ fees is DENIED. The Clerk of
the Court is directed to enter judgment accordingly and mark this
case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: September 13 , 2019
Central Islip, New York
23