Rodriguez v. Nassau County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARGALIE RODRIGUEZ,

Plaintiff, Case No. 16-cv-2648 (SFJ)(ARL)

-v- Memorandum and Order

NASSAU COUNTY and NASSAU COUNTY

COMMISSION ON HUMAN RIGHTS,

Defendants.

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FEUERSTEIN, S., Senior District Judge:

I. Introduction

Plaintiff Margalie Rodriguez (“Plaintiff” or “Rodriguez”) commenced this employment

discrimination action pursuant to 42 U.S.C. § 2000e et seq. (hereafter, “Title VII”), 42 U.S.C. §

1981, and New York State Human Rights Law (“NYSHRL”) against Defendants Nassau County

(“County”) and Nassau County Commission on Human Rights (“Commission”; together with the

County, the “Defendants”), alleging gender, race, and national origin discrimination, as well as

retaliation. (See generally Complaint (“Complaint”)(ECF No. 1).) Presently before the Court is

the Defendants’ motion seeking summary judgment in their favor on all of Plaintiff’s claims

(hereafter, the “Summary Judgment Motion”) (see ECF No. 31; see also Mem. in Supp.

(“Support Memo”) (ECF No. 31-6)), which the Plaintiff opposes (hereafter, “Opposition” or

“Opp’n”)(ECF No. 32). For the reasons that follow, the Defendants’ Summary Judgment

Motion is GRANTED.

II. Background

A. Factual Background1

1. The Commission

The County’s Commission was created to “encourage mutual understanding and respect

among all groups in the County, eliminate prejudice, intolerance, bigotry and discrimination and

give effect to the guarantee of equal rights for all assured by the constitution and the laws of

[New York States] and of the United States of America.” (Rule 56.1 Stmt., ¶5 (quoting By-Laws

of Commission, attached as Ex. C).) The Committee is overseen by a Board, which is

comprised of fifteen appointed Commissioners, with one of the Commissioners being appointed

as the Board’s Chairperson. (See id. at ¶6). The day-to-day operations of the Commission are

conducted by an executive director, who is chosen by a selection process: the Board proposes a

nominee to the County Executive; the County Executive puts forth the nomination to the County

Legislature; and, ultimately, the County Legislature appoints the executive director. (See id. at

¶¶9, 10.)

The Commission has three divisions: Investigation and Compliance, which is responsible

for investigating discrimination complaints; Pretrial, which provides various levels of assistance

1 Unless otherwise indicated, the facts are taken from the County Defendants’ Rule 56. 1

Statement in support of their Summary Judgment Motion (hereafter, “Rule 56.1 Stmt.”)(see ECF

No. 31-1), and Plaintiff’s Rule 56.1 Response (hereafter, “Rule 56.1 Response”)(see ECF No.

32-1). Unless otherwise stated, a standalone citation to a Rule 56.1 Statement or Response

denotes that either the parties agree, or the Court has determined, that the underlying factual

allegation(s) is(are) undisputed. Citation to a party’s Rule 56.1 Statement or Response

incorporates by reference the document(s) cited therein.

The County Defendants’ exhibits are identified by letters and are attached to the Declarations of

Attorney Deanna D. Panico (see ECF No. 32-1; ECF No. 33-1). The Plaintiff’s exhibits are

identified by numbers and are attached to the Declaration of Attorney Christopher C. Luke, Jr.

(see ECF No. 32-2). While both Plaintiff and Defendants submitted several identical exhibits,

e.g., Plaintiff’s deposition transcript, such exhibits are identified by the respective letters or

numbers assigned to them by the citing party.

to inmates, including assisting inmates who believe their rights have been violated; and Job

Development, which assists minority individuals in finding employment. (See id. at ¶¶12, 13,

15, 17.)

2. The Hiring of Plaintiff and Others

In 1994, Plaintiff, an African American woman, was hired by the County as a “Human

Relations Representative I” and was assigned to the Commission. (See id. at ¶¶2, 46.) Non-

parties Rodney McRae (“McRae”) and Dan Russell (“Russell”), both African American men

(see id. at ¶¶20 (Russell), 45 (McRae)), were also hired by the County and assigned to the

Commission at the same time as Plaintiff. (See id. at ¶4.) “Plaintiff was assigned to the

Investigation and Compliance Division,” (id., ¶14), with McRae being assigned to the Pretrial

Division (see id. at ¶16), and Russell being assigned to the Job Development Division (see id. at

¶18).

3. The Executive Director Position from 2008 Onward

In 2008, Russell became the Commission’s Executive Director. (See id. at ¶19.) At that

time, in addition to overseeing the Pretrial Division, McRae began supervising the Job

Development Division. (See id. at ¶22.) Plaintiff continued as supervisor of the Investigation

and Compliance Division. (See id.) Russell retired at the end of December 2014, leaving the

Commission’s Executive Director position vacant. (See id. at ¶23.)

Thereafter, both Plaintiff and McRae applied for the Executive Director position. (See id.

at ¶¶24, 31.) It is undisputed that at that time, Plaintiff was a Human Relations Representative II,

supervising the Investigation and Compliance Division. In December 2014, Zahid Syed

(“Syed”) was the Chairperson of the Commission’s Board; he interviewed Plaintiff and McRae

and another person for the Executive Director position. (See id. at ¶¶26-28, 30, 32; see also Syed

Depo. Tr. (Ex. D) at 15.) Those interviews focused largely upon the candidates’ community

involvement since “[c]ommunity involvement is incredibly important to the Commission

because the programs run by the Commission are not funded by the County[, but are] . . . funded

by ‘[d]onations from communities, nonprofit organizations, banks, or profit organizations.’”

(Id., ¶ 33 (quoting Syed Depo Tr. (Ex. D) at 46:22-24); see also id. at ¶34 (Syed testifying that,

based upon his twenty years as a community activist, he believed that if a person was involved in

the community, he or she would have many contacts and be able to raise funds).) Syed testified

that his interviews lasted no more than fifteen minutes. (See Rule 56.1 Response, ¶28 (citing

Syed Depo Tr. (Ex. 6) at 16:2-3).) McRae testified that he discussed his community involvement

during his interview with Syed. (See Rule 56.1 Stmt., ¶35 (citing McRae Depo. Tr. (Ex. F), 71-

72).) Syed testified that when he asked Plaintiff about her community involvement, she

responded that she was involved with her church (see id. at ¶36), but Plaintiff claims she

discussed more than just her church involvement. (See Rule 56.1 Response, ¶36 (citing

Plaintiff’s Depo. Tr. (Ex. 2), 48:17-52:10).) Plaintiff further testified that during her interview

with Syed, “he told me that, ‘I want a man for the position, and I’m going to be bringing in some

other people for employees of Pakistani and Indian descent’” (hereafter, the “Syed Statements”).

(Plaintiff’s Depo. Tr. (Ex. 3), 312:2-6; cf., id. at 49-50.)

Thereafter, Syed presented the Board with the names of Plaintiff, McRae, and the third

individual interested in the Executive Director position, and suggested McRae as the most

qualified for that position, based largely on McRae’s community involvement, and for whom he

received may recommendations from other Commissioners and community leaders. (See Syed

Depo Tr. (Ex. D) at 20; Rule 56.1 Stmt., ¶¶37-40.) However, Plaintiff disputes that the Board

was aware of her candidacy. (See Rule 56.1 Response, ¶¶ 38, 41; but, cf., Syed Depo. Tr. (Ex.

D) at 61-62.) “On February 23, 2015, the Board of Commissioners voted unanimously to

nominate Mr. McRae as Executive Director of the Commission” (hereafter, the “February 2015

Nomination”). (Id., ¶42.) McRae served as the Acting Executive Director from the February

2015 Nomination date until December 18, 2017, when he was formally appointed to that position

by the County Legislature. (See id. at ¶43.)

4. Plaintiff’s Conduct Following McRae’s Nomination

A month after the February 2015 nomination, Plaintiff sent McRae an email “informing

him that she would no longer perform the majority of duties that she performed under the prior

Executive Director.” (Id. at ¶48; see also id. at ¶¶49-50.) Rather, she limited her job functions

to a Human Relations Representative II. (See McRae Depo Tr. (Ex. F), 25: 23-25 (testifying

Plaintiff does “the job she is tasked to do”).) Further, since the February 2015 Nomination, the

only method of communication between McRae and Plaintiff has been email (see id. at 23:23-

24:2) as, since the Nomination, “[P]laintiff refuses to speak to” McRae. (Id., ¶51.) As of the

February 2015 Nomination, there have been several complaints made against Plaintiff: minor

verbal complaints (see McRae Depo. Tr. (Ex. F) at 26); two written complaints by co-workers

(see Rule 56.1 Stmt., ¶55 (citing Ex. M), ¶56 (citing Ex. N)); and, a Workplace Violence

Incident Report.2 (See id. at ¶ 54 (citing Ex. L).)

5. The Anti-Bias Task Force

In or about 2010, Plaintiff, Russel, Syed, and others “created an anti-bias task force that

was designed to help address bias crimes in Nassau County” (hereafter, the “Task Force”). (Id.,

¶65.) Syed may have been one of the individuals who appointed Plaintiff to the Task Force.

2 A previous Workplace Violence Incident Report was filed against Plaintiff in 2009, when

Russell was the Executive Director. (See Rule 56.1 Stmt., ¶ 53 (citing Ex. K).)

(See id. at ¶67; cf., Rule 56.1 Response, ¶67.) Plaintiff claims she saw a document in December

2014 “wherein she was no longer listed as an officer within the [T]ask [F]orce” but, she never

followed up with McRae or Syed to verify her removal. (Id., ¶68.) She does not know whether

the Task Force still exists. (See id. at ¶69.)

6. Plaintiff’s Verified Complaint to N.Y.S. Division of Human Rights

The County has an Equal Employment Opportunity Department (hereafter, the “EEOD”)

(see id. at ¶72), with which Plaintiff is familiar (see id. at ¶73), since she is the EEOD

Representative for the Commission (see id. at ¶74). However, Plaintiff never filed a complaint

of discrimination with the EEOD regarding the allegations raised in this action (see id. at ¶75),

although Plaintiff claims she “sent a letter notifying the County Attorney of her claims on March

4, 2015.” (Rule 56.1 Response, ¶75 (citing Ex. 11 (undated letter to County Executive Mangano

without any indication that copy of same was sent to County Attorney)).

On May 12, 2015, Plaintiff filed a verified complaint with the N.Y.S. Division of Human

Rights raising her claims of unlawful employment discrimination practices based upon sex, race,

color, national origin and unlawful retaliation (hereafter, the “State Complaint”). (See id. (citing

Ex. 15).) There is no proof that the State Complaint was served upon the County Attorney. (See

Ex. 15.)

7. Trainings

Although Plaintiff alleged that she has been denied housing training (see id. at ¶70), she

conceded that she was granted permission to attend one housing training. (See Plaintiff’s Depo.

(Ex. E), 135:17-20); Ex. P.) Plaintiff claims that after she filed her Verified Complaint and upon

McRae’s request, she was not invited to another housing training she had previously attended

annually for several years. (See Rule 56.1 Response, ¶70 (citing Plaintiff’s Depo. Tr. (Ex. 3) at

136.)

8. Plaintiff’s Additional Claims

Plaintiff has made several additional statements which she alleges are disputed facts, to

wit: Syed subjected her to intentional discrimination during her interview with him for the

Executive Director position (see id. at P76 (citing Plaintiff’s Depo. Tr. (Ex. 3) at 312:2-9 (i.e.,

the Syed Statements))); she overheard McRae make derogatory comments about her national

original and race (see id. at ¶78 (citing Plaintiff’s Depo. Tr. (Ex. 2) at 129:12-25)); “McRae

requested his subordinates make false complaints against Plaintiff” (id. at ¶79 (citing Plaintiff’s

Affidavit (Ex. 8), ¶¶23-26)); “[a]s an act of retaliation[,] Plaintiff was stripped of her supervisory

duties” (id. at ¶80 (citing Plaintiff’s Depo. Tr. (Ex. 2) at 113: 42-114:7)); and, McRae was not

qualified for the position of Executive Director since he had never been a supervisor. (See id. at

¶81 (citing McRae’s Depo. Tr. (Ex. 4), 9:7-9; McRae’s Depo. Tr. (Ex. 5), 69:18-20; Ex 14

(McRae’s undated resume)).)

B. Procedural Background

On May 24, 2016, Plaintiff commenced this action, raising six causes of action, claiming:

1. pursuant to Title VII, discrimination by Defendants because of Plaintiff’s

gender, national origin, and race (see First Cause of Action, Complaint, ¶¶114-

146);

2. pursuant to Title VII, retaliation by Defendants in response to Plaintiff

opposing to Defendants’ alleged unlawful employment practices (see Second

Cause of Action, Complaint, ¶¶147-149);

3. pursuant to N.Y.S. Executive Law § 296, discrimination by Defendants based

upon Plaintiff’s gender, national origin, and race (see Third Cause of Action,

Complaint, ¶¶150-153);

4. pursuant to N.Y.S. Executive Law § 296(7), retaliation by Defendants in

response to Plaintiff opposing Defendants’ alleged unlawful discriminatory

practices;

5. pursuant to N.Y.S. Executive Law § 296(6), aiding and abetting in the

discriminatory conduct by Defendants in violation of NYSHRL (see Fifth Cause

of Action, Complaint, ¶¶157-159); and

6. pursuant to 42 U.S.C. § 1981, a claim of a deprivation of Plaintiff’s

employment benefits and privileges by Defendants because of Plaintiff’s race (see

Sixth Cause of Action, Complaint, ¶¶160-167).

On June 30, 2016, the Defendants answered Plaintiff’s Complaint, denying her

allegations and six causes of action, and raising several affirmative defenses including:

Plaintiff’s failure to file a Notice of Claim in conformance with state law (see Eighth Affirmative

Defense, Answer (ECF No. 9), ¶176); entitlement to immunities (see Tenth Affirmative Defense,

Answer, ¶178); and, the Ellerth/Faragher affirmative defense (see Answer, Twelfth Affirmative

Defense, ¶180). After multiple discovery extensions, on July 2, 2018, the Defendants moved for

summary judgment in their favor on all of Plaintiff’s causes of action.

C. The Parties’ Positions

1. The Defendants’ Position

The Defendants argue that Plaintiff’s Title VII claims of discrimination and retaliation

fail as a matter of law because she cannot make out a prima facie case of illegal discrimination.

Defendants assert that as to “the only adverse employment action alleged by [her] with respect to

her discrimination claim[, i.e.,] the alleged failure to promote Plaintiff to the position of

Executive Director,” Plaintiff has no evidence that the failure to elevate her to that position was

because of any discriminatory intent. (Support Memo at 3.) As to Plaintiff’s race-based claim,

Defendants contend that since McRae is also African-American, no “jury could possibly

conclude that Plaintiff was discriminated against because of her race.” (Id.) Regarding her

gender-based claims, the Defendants state Syed had only one vote on the Board of

Commissioners, which voted on the nomination of Executive Director candidate, and that the

County Legislature voted to approve that nomination, and Plaintiff has not put forth any

evidence of discriminatory intent by that electoral body in its voting to approve McRae’s

appointment. (See id. at 5.) Additionally, Defendants assert that even assuming Plaintiff could

make out a prima facia case of Title VII discrimination, this action “still warrants dismissal

because the Defendants’ actions were motivated by legitimate, non-discriminatory reasons,

which the Plaintiff cannot demonstrate are pretextual.” (Id. at 9.) Specifically, because

Commission-run programs are funded by outside sources, the ability to fundraise is crucial to the

Executive Director position; and, since McRae had significant community involvement and

connections, Syed believed McRae was substantially more capable of raising funds than

Plaintiff. (See id.)

As to Plaintiff’s retaliation claim, the Defendants argue that, even accepting for purposes

of this Motion that “Plaintiff engaged in a protected activity when she filed [the Verified

Complaint] . . . on May 8, 2015,” that claim fails since she “cannot establish that any adverse

employment actions were taken against [her] as a result” of that filing. (Id. at 5-6.) Defendants

further argue that, assuming Plaintiff’s claims of being removed from the Task Force and being

denied training are true, they are not adverse employment actions under Title VII. (See id. at 6

(arguing the failure to train was not an adverse action), and at 7 (arguing Plaintiff has no

evidence of removal from the Task Force).) In any event, since Plaintiff filed the Verified

Complaint after the alleged denial of training and the alleged Task Force removal, neither can

serve as a basis for Plaintiff’s retaliation claim. (See id. at 8.)

Defendants contend: that Plaintiff’s state law claims should be dismissed because

Plaintiff failed to serve the requisite Notice of Claim or otherwise comply with the pleading and

temporal requirements of New York General Municipal Law § 50-i (see id. at 10-11 (citing

Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999)); that since Plaintiff

cannot maintain her Title VII discrimination cause of action, her claim under Executive Law

§ 296 fails since both are analyzed under the same standard (see id. at 11); as there are no

individual defendants in this action and no “primary violation”, there is no basis upon which to

make an Executive Law § 296(6) aider and abettor claim (see id. at 11-12 (quoting Ferraro v.

Ramapo Cent. Sch. Dist., No. 17-cv-2039, 2017 WL 6343686, at *4 (S.D.N.Y. Dec. 11, 2017))).

Further, Defendants contend that Plaintiff cannot make out her § 1981 claim because to

do so against a municipal entity requires her to demonstrate “that a municipal policy caused a

violation of her constitutional rights” (id. at 12 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701, 702 (1989)), but “Plaintiff is unable to demonstrate that the Defendants intentionally

designed a municipal policy in order to deprive [her] of her constitutional rights on account of

her race.” (Id.) Alternatively, Defendants argue that since “§ 1981 claims are analyzed under

the same burden shifting framework as claims under Title VII, Plaintiff’s § 1981 claim fails” for

the same reasons her Title VII discrimination claims do. (Id. at 12-13.) They further highlight

that both Russell, the prior Executive Director, and McRae, Russell’s replacement, are the same

race as Plaintiff. (See id.) Finally, Defendants assert that since the Commission is an agency of

the County, it is not capable of being sued, warranting its dismissal from this action. (See id. at

13.)

2. Plaintiff’s Position

Addressing her prima facie case, Plaintiff asserts that: she is qualified for the Executive

Director position (see Opp’n at 5; see also id. at 8-9); being denied the promotion to Executive

Director was the adverse employment action she suffered due to her gender, race and national

origin (see id. at 6); and, the alleged Syed Statements made to Plaintiff during her interview with

Syed infer discrimination (see id.; see also id. at 7 (quoting Plaintiff’s Depo. Tr. regarding the

Syed Statements).) According to Plaintiff, Syed’s “discriminatory comments led him to choose a

lesser qualified male candidate due to his racial animus.” (Id. at 8.) The Plaintiff would also

have the Court reject Defendants’ argument that because McRae is also African American, there

could be no discrimination against Plaintiff. (See id. at 9 (“[D]iscrimination against one

employee cannot be cured, or disproven, solely by favorable, or equitable, treatment of other

employees of the same race or sex.” (citing Connecticut v. Teal, 457 U.S. 440, 455 (1982)3).)

In support of her retaliation cause of action, and based upon claimed instances of

protected activities for which she provides no citation to the record, Plaintiff claims she was

stripped of supervisory duties and “kept out of trainings and meetings that affected her work.”

(Id. at 16.) Plaintiff vaguely implies that Defendants’ reasons for subjecting her to the supposed

adverse employment actions are weak and their weaknesses demonstrates that but for her

complaints, Plaintiff would not have been subjected to illegal retaliation. (See id. at 16-17.)

While acknowledging that “[i]t is well-settled that there is no section 1981 violation for

national origin discrimination” (id. at 17 (citing Hooda v. Brookhaven Nat’l Lab., 659 F. Supp.2d

382, 392 (E.D.N.Y. 2009))), Plaintiff claims that race and national origin may be intertwined

3 While Plaintiff cites to Teal as the source of this quoted statement, it is actually found in

Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001), which cites to Teal and other cases in

support of that statement. See Brown, 257 F.3d at 252-53 (collecting cases).

(see id. (citing Thomson v. Odyssey House, No. 14-cv-3857, 2015 WL 5561209, at *19 n.23

(E.D.N.Y. Sept. 21, 2015); Deravin v. Kerik, 335 F.3d 195, 201 92d Cir. 2003))4), and implies

that hers is such a case (see id. at 18 (“Plaintiff identifies as African American of Haitian

descent.” (citing Plaintiff’s Depo. Tr., 32:24-25)).) She further implies that her complaints

regarding her national origin should be viewed to support her § 1981 racial discrimination claim.

(See id.)

Plaintiff asserts that as to her failure to file a notice of claim, after the February 2015

Nomination, she “then sent a claim letter to the County Attorney on or around March 4, 2105”

that complied with the 90-day statutory period (id. at 19 (citing Plaintiff’s Affidavit, ¶17 (“I had

no choice but to file a discrimination complaint with the New York State Division on Human

[R]ights after I already notified the County on March 4, 2015 and nothing was done.”), and Ex.

11).) Plaintiff contends that when no response was forthcoming, she proceeded to file the

Verified Complaint and, therefore, “Defendants had full notice of Plaintiff’s claims.” (Id.)

Plaintiff did not respond to the Defendants other arguments regarding her state law claims.

Plaintiff also raises a hostile work environment argument. (See id. at 10-13.) She

contends that the Defendants have mistreated her since she first began working for the

Commission, raising undated incidents, and baldly asserting that “[d]espite all of [her]

complaints[,] the harassment has not ended,” and “[a]ll of the comments and discriminatory

actions were made by Defendants’ supervisors and people in position of authority above that of

Plaintiff.” (See id. at 10-11.) Failing to point to any evidence, Plaintiff further asserts that the

Defendants “did not take prompt and reasonable action regarding [her] complaints of

4 In Thomson, the district court was ruling on a motion to dismiss a complaint, see 2015 WL

5561209, at *1, and in Deravin, a panel of the Second Circuit vacated and remanded the granting

a motion for judgment on the pleadings.

discrimination.” (Id. at 12.) Relying upon her vague assertions of complaints to supervisors, her

Verified Complaint (which does not allege a hostile work environment), and her May 2018 letter

to Mary Elizabeth Ostermann,5 Plaintiff argues that the Defendants’ reliance on the County’s

written, anti-discrimination policy is not enough to establish a viable Ellerth/Faragher defense.

(See id. at 13 (citing Zimmerman v. Assoc. First Capital Corp., 251 F.3d 376, 386 (2d Cir.

2001)).)

Plaintiff did not address the Defendants’ argument that the Commission, as an agency of

the County, is a non-suable entity.

3. The Defendants’ Reply

Defendants reiterate that Plaintiff cannot make out her prima facie case of Title VII

discrimination since she “points only to a single incident,” i.e., the Syed Statements, to infer

unlawful discrimination, but that is insufficient to defeat the Summary Judgment Motion as it is

hearsay (see Reply at 1) and is inconsistent with her Complaint (see id. at 2). They also reiterate

that Plaintiff’s Title VII race and national origin claims fail because McRae is the same race and

national origin as Plaintiff. (See id. at 2-3 (citing Barrella v. Vill. of Freeport, 43 F. Supp.3d

136, 177 (E.D.N.Y. 2014); Pointer v. Columbia Univ., No. 95-cv-8418, 1998 WL 898313, at *5

(S.D.N.Y. Dec. 22, 2998)).)

Defendants further contend that even if Plaintiff could make a prima facie case of

discrimination, they have articulated legitimate, non-discriminatory reasons for their choice of

5 In support of her statement that “Defendants have not stopped the harassment of Plaintiff,”

Plaintiff cites to “Exhibit Letter dated May 18, 2018).” (See id. at 12.) The Court assumes

Plaintiff is referring to Exhibit 12, a May 16, 2018 letter to Mary Elizabeth Ostermann, Director

of the County’s Office of Equal Employment Opportunity, which addresses Plaintiff’s

dissatisfaction with that Office’s investigation into Plaintiff’s May 2017 sexual harassment

complaints, which are not part of this action.

McRae: his impressive vision for the Commission; his community involvement and

connections, many of which Syed personally knew; and, that he was more personable and likable

than Plaintiff (id. at 3 (citing Ex. R)). Moreover, Defendants assert that Plaintiff is unable to

demonstrate that Defendants’ reasons are pretextual as she relies on stale incidents dating back

over a decade (see id. at 4-5) and she misquotes McRae’s testimony (see id. at 5 (citing McRae’s

Depo Tr. at 38:8-18, 83-84)), none of which is enough for Plaintiff to sustain a challenge to the

prudency of Defendants’ decision to appoint McRae to the Executive Director position. (See id.)

Defendants argue that Plaintiff’s hostile work environment claim fails for multiple

reasons, to wit: she failed to plead a hostile work environment cause of action and cannot amend

her Complaint (see id.); she failed to demonstrate that her work environment was permeated with

discriminatory intimidation, ridicule and insult that was so severe or pervasive as to alter her

work conditions; and, the incidents she raises are too temporally remote to support her claim

and/or are unsupported hearsay allegations, which are not sufficient to sustain a hostile work

environment claim. (See id. at 7-8.) Defendants continue by claiming entitlement to the

application of the Ellerth/Faragher defense since the County had an anti-harassment policy in

place, of which Plaintiff was aware, but unreasonably failed to avail herself. (See id. at 8-9.)

Defendants contend that Plaintiff’s retaliation claim must fail since Plaintiff did not suffer

any adverse employment action, and her attempt to establish earlier protected activity by now

claiming in her Opposition that she had previously complained to Russell about Syed, is

unavailing and wholly unsubstantiated. (See id. at 9.) Similarly, her new allegations of

numerous other earlier complaints, as well as claims of being stripped of supervisory

responsibilities and being “kept out of trainings and meetings” are all made without admissible

evidentiary support. (Id. at 9-10)

III. Discussion

A. Applicable Law

1. The Summary Judgment Standard

“Summary judgment is proper ‘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.’” ING Bank N.V. v.

M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.

56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary

judgment motion, the district court must first “determine whether there is a genuine dispute as to

a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,

202 (2d Cir. 2007) (internal quotations and citations omitted); see also Ricci v. DeStefano, 557

U.S. 557, 129 S. Ct. 2658, 2677 (2009) (“On a motion for summary judgment, facts must be

viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as

to those facts.” (emphasis added; internal quotations and citation omitted)).

In reviewing the record to determine whether there is a genuine issue for trial, the court

must “construe the evidence in the light most favorable to the non-moving party,” Centro de la

Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017)

(quotations, alterations and citation omitted), and “resolve all ambiguities, and credit all factual

inferences that could rationally be drawn, in favor of the party opposing summary judgment.”

Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation

omitted); see also Hancock v. County of Rensselaer, 823 F.3d 58, 64 (2d Cir. 2018) (“In

determining whether there is a genuine dispute as to a material fact, we must resolve all

ambiguities and draw all inferences against the moving party.”). “Where the record taken as a

whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine

issue for trial.” Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348 (1986)); accord Baez v. JetBlue Airways Corp., 793

F.3d 269, 274 (2d Cir. 2015).

“The moving party bears the initial burden of showing that there is no genuine dispute as

to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d

Cir. 2013) (quotations, brackets and citation omitted); accord Jaffer, 887 F.3d at 114. “[W]hen

the moving party has carried its burden[,] . . . its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts . . . [,]” Scott v. Harris, 550 U.S. 372,

380 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87), and must offer “some hard evidence

showing that its version of the events is not wholly fanciful[.]” Miner v. Clinton County, N.Y.,

541 F.3d 464, 471 (2d Cir. 2008) (quotations and citation omitted). The nonmoving party can

only defeat summary judgment by “adduc[ing] evidence on which the jury could reasonably find

for that party.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d Cir. 2012) (quotations, brackets

and citation omitted). “‘The mere existence of a scintilla of evidence in support of the [non-

movant’s] position will be insufficient’ to defeat a summary judgment motion[,]” Fabrikant v.

French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986)), and “[a] court cannot credit a plaintiff’s merely speculative or conclusory

assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012); see also Federal Trade Comm’n

v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (“[A] party may not rely on mere speculation or

conjecture as to the true nature of the facts to overcome a motion for summary judgment.”

(quoting Fletcher v. Alex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995))); Flores v. United States, 885

F.3d 119, 122 (2d Cir. 2018) (“While we are required to resolve all ambiguities and draw all

permissible factual inferences in favor of the non-moving party, . . . conclusory statements,

conjecture, or speculation by the party resisting the motion will not defeat summary judgment[.]”

(quotations, alterations and citations omitted)); Elliott v. Gouverneur Tribune Press, Inc., No. 13-

cv-0055, 2014 WL 12598275, at *2 (N.D.N.Y. Sept. 29, 2014) (“[I]t is well-settled that a party

opposing a motion for summary judgment may not simply rely on the assertions in its

pleadings.” (citing Celotex Corp., v. Catrett, 477 U.S. 317, 324 (1986); further citation omitted)).

Since “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party

for a jury to return a verdict for that party[,] . . . [i]f the evidence is merely colorable, . . . or is not

significantly probative, . . . summary judgment may be granted.” Anderson, 477 U.S. at 249-50

(quotations and citations omitted).

Summary judgment is warranted, “after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322; accord El-Nahal v. Yassky, 835 F.3d 248, 252 (2d Cir. 2016), cert.

denied, 137 S. Ct. 2187 (2017); see also Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d

473, 486 (2d Cir. 2014) (“[W]here the nonmoving party will bear the burden of proof on an issue

at trial, the moving party may satisfy its burden [of showing the absence of a genuine dispute as

to any material fact] by pointing to an absence of evidence to support an essential element of the

nonmoving party’s case[.]” (quotations, alterations and citation omitted)). “In such a situation,

there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 322-23; accord Crawford, 758 F.3d at 486; see also Chandok

v. Klessig, 632 F.3d 803, 812 (2d Cir. 2011) (“Where the undisputed facts reveal that there is an

absence of sufficient proof as to one essential element of a claim, any factual disputes with

respect to other elements become immaterial and cannot defeat a motion for summary

judgment.”). “The moving party is entitled to a judgment as a matter of law because the

nonmoving party has failed to make a sufficient showing on an essential element of her case with

respect to which she has the burden of proof.” Celotex, 477 U.S. at 323 (quotations and citation

omitted). Accordingly, when “the burden of persuasion at trial would be on the non-moving

party . . . the party moving for summary judgment may satisfy his burden of production under

Rule 56 in either of two ways: (1) by submitting evidence that negates an essential element of the

non-moving party’s claim, or (2) by demonstrating that the non-moving party’s evidence is

insufficient to establish an essential element of the non-moving party’s claim.” Nick’s Garage,

875 F.3d at 114 (quotations and citation omitted); see also DeRogatis v. Bd. of Trs. of Welfare

Fund of Int’l Union of Operating Eng’rs Local 15, 15A, 15C & 15D, AFLCIO, 904 F.3d 174,

187 (2d Cir. 2018) (holding that when the ultimate burden of proof at trial would be on the non-

moving party, the moving party “may satisfy their burden of production under Rule 56 by

negating an essential element of the [non-moving party’s] claim, whether by submitting

undisputed evidence to that effect or by demonstrating the insufficiency of the [non-moving

party’s] own evidence” (quotations, alterations and citation omitted)); see also Fuertado v. City

of N.Y., 337 F. Supp.2d 593, 599 (S.D.N.Y. 2004)(“The moving party may use a memorandum

or brief to ‘point to’ the absence of evidence and thereby shift to the non-movant the obligation

to come forward with admissible evidence supporting its claim.” (citations omitted)); Olutosin v.

Lee, No. 14-cv-0685, 2018 WL 4954107, at *8 (S.D.N.Y. Oct. 12, 2018)(same (citing

Fuertado)).

A district court is “under no obligation to engage in an

exhaustive search of the record” when considering a motion for

summary judgment. Jones v. Goord, 435 F. Supp.2d 221, 259

(S.D.N.Y. 2006) (citing Amnesty Am. v. Town of W. Hartford, 288

F.3d 467, 470–71 (2d Cir. 2002)); see also Fed. R. Civ. P.

56(c)(3); Lee v. Alfonso, 112 F. App’x 106, 107 (2d Cir. 2004). A

party opposing a motion for summary judgment must “specifically

respond to the assertion of each purported undisputed fact . . . and,

if controverting any such fact, [must] support its position by citing

to admissible evidence in the record.” Baity v. Kralik, 51 F.

Supp.3d 414, 418 (S.D.N.Y. 2014) (quoting Risco v. McHugh, 868

F. Supp.2d 75, 86 n.2 (S.D.N.Y. 2012)); see also Fed. R. Civ. P.

56(c)(1)(A)–(B); Kalola v. Int’l Bus. Machines Corp., No. 13-CIV-

7339, 2017 WL 5495410, at *4 (S.D.N.Y. Jan. 9, 2017) (“Plaintiff

cannot expect the Court to comb the record to find evidence not

highlighted in [Plaintiff’s] motion papers—summary judgment is

not a game of hide and seek.”).

Green v. Mount Sinai Health Sys., Inc., No. 17-cv-3999, 2019 WL 4392691, at *3 (S.D.N.Y.

Sept. 12, 2019). “Accordingly, to the extent that Plaintiff’s [Opposition] assert[s] arguments

without citations to the record, the Court need not consider them.” Id.

2. Discrimination Claims Under Title VII and NYSHRL

Title VII makes it unlawful for an employer to discriminate against any individual

“because of such individual’s race, . . . sex, or national origin.” U.S.C. § 2000e-2(a)(1). “Claims

of sex-based discrimination under Title VII and the NYHRL are analyzed using the familiar

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed.2d 668 (1973).” Walsh v. New York City Housing Auth., 828 F.3d 70, 74-

75 (2d Cir. 2016); see also Menaker v. Hofstra Univ., 935 F.3d 20, 2019 WL 3819631, at *4 (2d

Cir. Aug. 15, 2019) (“Because it is often difficult to obtain direct evidence of discriminatory

intent, we employ a ‘burden-shifting framework’ (commonly identified by reference to the

Supreme Court case from which it derives, McDonnell Douglas Corp. v. Green)[] to

progressively sharpen the inquiry into the elusive factual question of intentional discrimination.”

(quotations, alterations and footnotes omitted)). At the first step of the McDonnell Douglas

analysis, a plaintiff “must establish a prima facie case of sex discrimination by demonstrating

that (1) she was within the protected class; (2) she was qualified for the position; (3) she was

subject to an adverse employment action; and (4) the adverse action occurred under

circumstances giving rise to an inference of discrimination.” Walsh, 828 F.3d at 75 (quotations

and citation omitted). Claims of unlawful discrimination based upon race and/or national origin

are also evaluated under the McDonnell Douglas burden-shifting framework. See, e.g., Kirkland

v. Cablevision Sys., 760 F.3d 223 (2d Cir. 2014)(re: race discrimination); Sethi v. Narod, 12 F.

Supp.3d 505, 521-22 (E.D.N.Y. 2014)(re: national origin); see also Fahrenkrug v. Verizon Srvs.

Corp., 652 F. App’x 54, 56 n.3 (2d Cir. 2016)(“We apply the same analytical framework to

review claims under Title VII and the NYSHRL.” (citing Pucino v. Verizon Wireless Commc’ns,

Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010))).

“The burden of establishing a prima facie case is not onerous, and has been frequently

described as minimal.” Walsh, 828 F.3d at 75 (quoting Norton v. Sam’s Club, 145 F.3d 114, 118

(2d Cir. 1998) (internal quotation marks omitted)); see also Beyer v. County of Nassau, 524 F.3d

160, 163 (2d Cir. 2008) (holding that the burden of establishing a prima facie case of

discrimination is “de minimis: it is neither onerous, nor intended to be rigid, mechanized or

ritualistic.” (quotations and citation omitted)). “Nonetheless, a plaintiff’s case must fail if she

cannot carry this preliminary burden.” Beyer, 524 F.3d at 163; see also Fahrenkrug, 652 F.

App’x at 56 (holding that the failure to establish any one of the necessary elements for a prima

facie case of discrimination mandates dismissal of the plaintiff’s claims).

“If the plaintiff successfully establishes a prima facie case, ‘the burden then must shift to

the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment

action.’” Walsh, 828 F.3d at 75 (quoting United States v. Brennan, 650 F.3d 65, 93 (2d. Cir.

2011) (internal quotation marks omitted)); accord Menaker, 2019 WL 3819631, at * 4. With

respect to a plaintiff’s Title VII discrimination claim, “[i]f the employer carries that burden, ‘the

plaintiff’s admissible evidence must show circumstances that would be sufficient to permit a

rational finder of fact to infer that the defendant’s employment decision was more likely than not

based in whole or in part on discrimination.’” Walsh, 828 F.3d at 75 (quoting Feingold v. New

York, 366 F.3d 138, 152 (2d Cir. 2004)); see also Kirkland v. Cablevision Sys., 760 F.3d 223,

225 (2d Cir. 2014) (holding that once the employer articulates a legitimate, nondiscriminatory

reason for its actions, “the burden then shifts back to the plaintiff to show that the employer’s

explanation is a pretext for . . . discrimination. . . . [O]nce the employer has made a showing of a

neutral reason for the complained of action, to defeat summary judgment [] the employee’s

admissible evidence must show circumstances that would be sufficient to permit a rational finder

of fact to infer that the employer’s employment decision was more likely than not based in whole

or in part on discrimination.” (quotations, alterations and citations omitted)).

“The ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff, . . . and the governing

standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable

inference that prohibited discrimination occurred[.]” Johnson v. Schmid, 750 F. App’x 12, 16

(2d Cir. 2018) (quotations and citations omitted); see also St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 506-07 (1993) (“Under the McDonnell Douglas scheme, establishment of the prima

facie case in effect creates a presumption that the employer unlawfully discriminated against the

employee. . . . To establish a ‘presumption’ is to say that a finding of the predicate fact (here, the

prima facie case) produces a required conclusion in the absence of explanation” (here, the

finding of unlawful discrimination). . . . Thus, the McDonnell Douglas presumption places upon

the defendant the burden of producing an explanation to rebut the prima facie case—i.e., the

burden of producing evidence that the adverse employment actions were taken for a legitimate,

nondiscriminatory reason. . . . The defendant must clearly set forth, through the introduction of

admissible evidence, reasons for its actions which, if believed by the trier of fact, would support

a finding that unlawful discrimination was not the cause of the employment action. . . . It is

important to note, however, that although the McDonnell Douglas presumption shifts the burden

of production to the defendant, the ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”

(quotations, alterations, emphasis and citations omitted)).

3. Retaliation Claims Under Title VII and NYSHRL

“To prevail on a retaliation claim, ‘the plaintiff need not prove that her underlying

complaint of discrimination had merit,’ Lore v. City of Syracuse, 670 F.3d 1127, 157 (2d Cir.

2012), but only that it was motivated by a ‘good faith, reasonable belief that the underlying

employment practice was unlawful,’ Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.

1996 (citation and internal quotation marks omitted).” Kwan v. Andalex Grp., LLC, 737 F.3d

834, 843 (2d Cir. 2013). “Federal and state law retaliation claims are reviewed under the

burden-shifting approach of McDonnell Douglas . . . .” Id. (citing Hicks v. Baines, 593 F.3d 159,

164 (2d Cir. 2010); further citations omitted); see also Jones v. Rochester City Sch. Dist., 676 F.

App’x 95, 98 (2d Cir. 2017)(same); Green, 2019 WL 4392691, at *3 (stating the elements of a

retaliation claim under Title VII and the NYSHRL are “identical”)(collecting cases).

Under the McDonnell Douglas framework, a plaintiff claiming retaliation must first make

a prima facie showing that: (1) she participated in a protected activity; (2) defendant knew of the

protected activity; (3) an adverse employment action; and (4) a causal connection between the

protected activity and the adverse employment action. See Kwan, 737 F.3d at 844 (quoting Jute

v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)); Terry v. Ashcroft, 336 F.3d

128, 141 (2d Cir. 2003)(“To establish a prima facie case of retaliation, an employee must show

‘(1) participation in a protected activity known to the defendant, (2) an employment action

disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the

adverse employment action.’” (internal citations omitted)); Jones, 676 F. App’x at 97; Amaya v.

Ballyshear LLC, 295 F. Supp.3d 204, 221 (E.D.N.Y. 2018).

“An adverse employment action is ‘a materially adverse change in the terms and

conditions of employment.’” Fahrenkrug, 652 F. App’x at 56 (quoting Sanders v. N.Y.C.

Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)); accord Davis v. N.Y.C. Dep’t of Educ.,

804 F.3d 231, 235 (2d Cir. 2015). It “‘must be more disruptive than a mere inconvenience or an

alteration of job responsibilities and might be indicated by a termination of employment, a

demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices [] unique to a

particular situation.’” Fox v. Costco Wholesale Corp., 918 F.3d 65, 71-72 (2d Cir.

2019)(quoting Patrolmen’s Benevolent Ass’n of City of N.Y. v. City of N.Y., 310 F.3d 43, 51 (2d

Cir. 2002)). Rather, it is “any action that ‘could well dissuade a reasonable worker from making

or supporting a charge of discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d

72, 90 (2d Cir. 2015)(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)); see also Amaya, 295 F. Supp.3d at 222 (same).

“‘Title VII claims must be proved according to traditional principles of but-for

causation,’ which ‘requires proof that the unlawful retaliation would not have occurred in the

absence of the alleged wrongful action or actions of the employer.’” Kwan, 737 F.3d at 845

(quoting Univ. of Tex. SW Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)); see also Jones, 676 F.

App’x at 97; Amaya, 295 F. Supp.3d at 222. “The causal connection may be demonstrated by

‘(a) indirectly showing that the protected activity was followed closely by discriminatory

treatment; (b) indirectly through other evidence such as disparate treatment of fellow employees

who engaged in similar conduct; or (c) directly through evidence of retaliatory animus.’”

Amaya, 295 F. Supp.3d at 222 (quoting LaSalle v. City of N.Y., No. 13-cv-5109, 2015 WL

1442376, at *2 (S.D.N.Y. Mar. 30, 2015); further citation omitted).

4. § 1981 Racial Discrimination Claims

The Second Circuit has construed [§1981] to prohibit employment

discrimination on the basis of race. See Lauture v. Int’l Bus.

Machs. Corp., 216 F.3d 258, 260-61 (2d Cir. 2000) (holding that §

1981 covers claims of employment discrimination brought both by

employees working under contract and at-will employees). [It] has

instructed that in order to plead a claim for race discrimination

under § 1981, “plaintiffs must allege facts supporting the following

elements: (1) [the] plaintiffs are members of a racial minority; (2)

[the] defendants’ intent to discriminate on the basis of race; and (3)

discrimination concerning one of the statute’s enumerated

activities.” Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir.

2000). “This section thus outlaws discrimination with respect to

the enjoyment of benefits, privileges, terms, and conditions of a

contractual relationship, such as employment . . . .” Patterson v.

County of Oneida, 375 F.3d 206, 224 (2d Cir. 2004).

Toussaint v. NY Dialysis Servs., Inc., 230 F. Supp.3d 198, 211 (S.D.N.Y. 2017).

Section 1981 racial discrimination claims “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); see also

McGill v. Univ. of Rochester, 600 F. App’x 789, 790 (2d Cir. 2015)(“We analyze Title VII,

Section 1981, and NYSHRL discrimination claims under the same burden shifting framework as

first set forth by the Supreme Court in McDonnell Douglas . . . .” (citations omitted)); Barella v.

Village of Freeport, 16 F. Supp.3d 144, 158 (E.D.N.Y. 2014)(§ 1981 claims are all evaluated

under the three-step burden-shifting framework of McDonnell Douglas).

5. Aiding and Abetting Claims

The NYSHRL allows for individual liability where a defendant aided and abetted the

unlawful discriminatory acts of others. See N.Y. Exec. Law § 296(6); see also Gorman, 146 F.

Supp.3d at 521-22 (quoting EEOC v. Suffolk Laundry Servs., Inc., 48 F. Supp.3d 497, 523

(E.D.N.Y. 2014)). Thus, “a co-worker who ‘actually participates in the conduct giving rise to a

discrimination claim’” can be “held liable under the NYSHRL even though that co-worker

lacked the authority to either hire or fire the plaintiff.” Feingold v. New York, 366 F.3d 138, 158

(2d Cir. 2004)(quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)6); see also

Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011)(“[W]hile

an individual defendant with supervisory control may not be held personally liable under Title

VII, an individual defendant may be held liable under the aiding and abetting provision of the

NYSHRL if he actually participates in the conduct giving rise to a discrimination claim.”

(internal quotations and citations omitted)). “Aiding and abetting liability requires that the aider

and abettor share the intent or purpose of the principal actor, and there can be no partnership in

an act where there is no community of purpose.” Brice v. Sec. Operations Sys., Inc., No. 00-cv-

2438, 2001 WL 185136, at *4 (S.D.N.Y. Feb. 26, 2001)(internal quotation marks and citations

omitted). “Consequently, to find that a defendant actually participated in the discriminatory

conduct requires a showing of direct, purposeful participation.” Id. (internal quotation marks and

citation omitted). Stated differently, there must be sufficient evidence of the individual

6 Tomka was abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

(1998).

defendant’s connection to the alleged discrimination to warrant the imposition of NYSHRL aider

and abettor liability. See Guzman, 2013 WL 5807058, at *22. It is axiomatic, then, that the

predicate to imposing individual aider and abettor liability under § 296(6) is the finding of

impermissible discrimination.

B. The Instant Case

1. Claims Against the Commission

In New York, agencies of a municipality are not suable

entities. The only proper defendant in a lawsuit against an agency

of a municipality is the municipality itself, not the agency through

which the municipality acted. This is so because, “[u]nder New

York law, departments that are merely administrative arms of a

municipality have no separate legal identity apart from the

municipality and therefore cannot be sued.”

New York. Omnipoint Commc’ns, Inc. v. Town of LaGarange, 658 F.Supp.2d 539, 552 (S.D.N.Y.

2009)(quoting Santiago v. City of N.Y., No. 06-15508, 2008 WL 2854261, at *3 (S.D.N.Y. July

21, 2008); collecting cases); see also Rose v. County of Nassau, 904 F. Supp.2d 244, 247

(E.D.N.Y. 2012)(dismissing complaint against the Nassau County Police Department as a non-

suable entity since it is an administrative arm of the County of Nassau); Human Resource

Research and Mgmt. Grp., Inc. v. County of Suffolk, 687 F. Supp.2d 237, 241 n.1 (E.D.N.Y.

2010)(quoting Human Resource Research); Chodkowski v. County of Nassau, No. 16-cv-5770,

2017 WL 10637956, at *5 (E.D.N.Y. Nov. 30, 2017)(holding neither Nassau County Police

Department nor Nassau County Civil Service Commission are suable entities as both are

administrative entities of the County); McJunkin v. Suffolk County Civil Serv., No. 13-cv-5045,

2014 WL 3490720, at *2 (E.D.N.Y. July 10, 2014)(holding that the Suffolk County Civil Service

had no separate legal identity and was, therefore, incapable of being sued). The Defendants

contend that since the Commission “is an agency of the County of Nassau, dismissal is warranted

as to the claims against it.” (Support Memo at 13.) The Court agrees. Even if that were not the

case, since Plaintiff has failed addressed this issue in her Opposition, the Court deems her claims

against the Commission abandoned. See Taylor v. City of N.Y., 269 F. Supp.2d 68, 75 (E.D.N.Y.

2003)(“Federal courts may deem a claim abandoned when a party moves for summary judgment

on one ground and the party opposing summary judgment fails to address the argument in any

way.”)(citing Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 393 (S.D.N.Y.

1998)(collecting cases)); see also Patacca v. CSC Holdings, LLC, No. 16-cv-0679, 2019 WL

1676001, at *13 (E.D.N.Y. Apr. 17, 2019)(discussing abandonment of claims; collecting cases);

Green, 2019 WL 4392691, at *3 (collecting cases).

2. Plaintiff’s Title VII Discrimination Claims

While there is no dispute that Plaintiff is a female African American of Haitian descent,

and even assuming, arguendo, that she was qualified for the Executive Director position, to

which she was not promoted, the alleged adverse action (see Opp’n at 6 (citing Stewart v. City of

N.Y., No. 11-cv-6935, 2012 WL 2849779, at *6 (S.D.N.Y. July 10, 2012)(stating a failure to

promote qualifies as an adverse employment action)), Plaintiff cannot make out a prima facie

case of unlawful discrimination. See Walsh, 828 F.3d at 75 (delineating the four components of

a plaintiff’s prima facie discrimination case) (quotations and citation omitted). Plaintiff relies

upon the Syed Statements as giving rise to an inference of discrimination, but her reliance is

misplaced; Syed denies making the Statements (see Syed Depo. Tr. (Ex. D), 30:4-12), and

Plaintiff’s only substantiation is her deposition testimony (see Plaintiff’s Depo. Tr. (Ex. 3),

312:2-9), which is inadmissible hearsay that cannot be relied upon to defeat summary judgment.

See, e.g., Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000)

(“[S]tatements reported to the plaintiff[] and not supported by affidavits are inadmissible

hearsay”); Patacca v. CSC Hldgs., LLC, No. 16-cv-679, 2019 WL 1676001, at *12 n.9

(E.D.N.Y. Apr. 17, 2019)(declining to consider inadmissible hearsay evidence in deciding

summary judgment motion); G.I. Home Dev. Corp. v. Weis, No. 07-cv-4115, 2011 WL 4434223,

at *11 (E.D.N.Y. Sept. 22, 2011)(declining to consider inadmissible hearsay plaintiff offered “to

create a[] genuine issue of material fact”); Pamphile v. Tishman Speyers Props., L.P., No. 03-cv-

5964, 2006 WL 1806505, at *5 n.2 (E.D.N.Y. June 29, 2006)(“Hearsay evidence is inadmissible

on a motion for summary judgment.”)(citations omitted). Moreover, to the extent that Plaintiff

argues that Syed did not present her qualifications, the evidence does not support same. (See

Opp’n at 6-7 (citing Syed Depo. Tr. (Ex 6), 20:23-25)). Plaintiff cites Syed’s deposition

testimony, which establishes only that no other member of the Board interviewed Plaintiff or

McRae. Nothing in that testimony establishes an inference of discrimination. Moreover, the

Plaintiff has not presented any evidence to infer that the Board, County Executive, or the

Legislature, the ultimate decision-making body, acted in a manner giving rise to an inference of

discrimination. Therefore, Plaintiff’s discrimination causes of action fail. See Beyer, 524 F.3d at

163 (stating that were a plaintiff is unable to establish a prima facie case of discrimination, the

“case must fail”); Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (“[A] Title VII

plaintiff’s claims nevertheless fail if she cannot make out a prima facie case of discrimination.”);

Fahrenkrug, 652 F. App’x at 56 (holding that failure to establish any one of the components of a

prima facie case of discrimination mandates dismissal of the discrimination claim).

3. Plaintiff’s Title VII Retaliation Claim

In attempting to establish her prima facie case of unlawful retaliation, Plaintiff begins by

claiming she made several complaints, i.e., participating in a protected activity, to wit: having

complained to Russell about discrimination (see Opp’n at 15 (citing Plaintiff’s Depo. Tr. (Ex. 2),

52:17-53:11); making “at least eight (8) complaints to Defendants’ Head of EEO[D,] Mary

Elizabeth Osterman[,] regarding discrimination and harassment” (id.); allegedly sending a letter

addressed to the County Executive, with a copy sent to the County Attorney (see id.); filing her

Verified Complaint (see id.); sending a December 17, 2017 to Laura Curran, the then-newly

elected County Executive, complaining of discrimination (see id. at 15-16); and making a written

complaint to Defendants on May 16, 2018 (see id. at 16).

Initially, Plaintiff’s alleged complaint to Russell about Syed’s treatment of her

demonstrates only her belief that Syed generally does not like her, especially because of her

opinions, as well as her belief regarding Pakistani men. In particular, Plaintiff testified:

[W]hen I came back from the interview, I went into Dan[

Russell]’s office and I said, Dan, . . . you know Commissioner

Syed never liked me and I’ve always complained to you about how

Commissioner Syed treated me and how when he comes in the

office and he would greet you and [McRae] and never greet me

and how Commissioner Syed did not like the fact that I voiced my

opinions many, many times.

Throughout — it was common knowledge that I did not

approve of the fact that several of the new commissioners were

coming in. They were not really a true representative of Nassau

County. There were two or three female commissioners that

Commissioner Syed had kicked off the board and — because they

were female, and I knew that, and I understand because of his

culture and . . . because of his national origin, because of his

culture he did not approve — not did not approve, but working

with women would be hard, and I understand all that.

So I said to Dan, there’s no way I’m gonna get this

position, and then Dan said to me, Maggie, just do what you gotta

do, and then I called Commissioner Syed back and I said,

Commissioner Syed, is there anything else you want from me, and

then he said to me, can you send me over a resume.

(Plaintiff’s Depo. Tr. (Ex. 3), 52:17-53:17.) Even assuming Plaintiff did complain to Russell

about Syed, there is nothing in this testimony that indicates any unlawful discriminatory basis.

Moreover, Plaintiff’s narrative explaining her perception of Syed’s supposed bias, which is

interjected in this testimony, fails to demonstrate she complained to Russell about Syed’s alleged

unlawful discriminatory treatment of her. Other than this self-serving, uncorroborated testimony,

Plaintiff offers no evidence substantiating her claim that she complained to Russell about Syed.

As to Plaintiff’s other supposed complaints, she has not provided any citations to the

record to support them, and “Plaintiff cannot expect the Court to comb the record to find

evidence not highlighted in [her] motion papers [as] summary judgment is not a game of hide

and seek.” Kalola v. Int’l Bus. Machines Corp., No. 13-cv-7339, 2017 WL 5495410, at *4

(S.D.N.Y. Jan. 9, 2017). “Accordingly, to the extent Plaintiff’s [Opposition] assert[s] arguments

without citation to the record, the Court need not consider them.” Green, 2019 WL 4392691, at

*3.

Plaintiff’s filing of the Verified Complaint was a protected activity, which occurred after

the February 2015 Nomination, when Plaintiff was not promoted. (See also Support Memo. at 5

(“For purposes of this motion only, Defendants do not dispute that Plaintiff engaged in a

protected activity when she filed [the Verified Complaint].”).) However, to demonstrate

retaliation, this is not enough; Plaintiff must also show that after this protected activity, she

suffered an adverse employment action or actions that would not have occurred but for her

engagement in that protected activity. See, e.g., Terry, 336 F.3d at 141 (instructing that to

establish a prima facie case of retaliation, in addition to showing participation in a protected

activity known to defendant, plaintiff must also show “an employment action disadvantaging the

plaintiff” and “a causal connection between the protected activity and the adverse employment

action”). The proffered adverse employment actions to which Plaintiff claims she was subjected

were being “stripped of supervisory duties” and being “kept out of trainings and meetings that

affected her work.” (Opp’n at 16 (citing Plaintiff’s Affidavit (Ex. 8), ¶22; Plaintiff’s Depo. Tr.

(Ex. 2), 113:24-114:7).) First, the only supervisory duty which Plaintiff identifies as being

stripped from her was monitoring whether staff would be “in or out”. (See Plaintiff’s Depo Tr.

(Ex. 2), 114:4.) This is not a materially adverse change in the terms and conditions of Plaintiff’s

employment. Cf., Fox, 918 F.3d at 72 (holding adverse employment action “must be more

disruptive than . . . an alteration of job responsibilities;” there must be “significantly diminished

material responsibilities”). Second, regarding the meetings from which Plaintiff was allegedly

excluded, Plaintiff’s vague and otherwise unsubstantiated statements about the meetings are

insufficient to establish that she suffered a materially adverse change in the conditions of her

employment. See, e.g., Chabad Lubavitch of Litchfield Count, Inc. v. Litchfield Historic Dist.

Comm’n, 768 F.3d 183, 197 n.10 (2d Cir. 2014)(“Because the affidavit failed to show that these

contentions could be established at trial by competent evidence, it cannot create a triable issue of

fact.”); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)(cautioning that permitting

parties “to defeat a motion for summary judgment by offering purely conclusory allegations of

discrimination, absent any concrete particulars” would necessitate a trial in all discrimination

cases). Third, Plaintiff cites only to her Affidavit to support her claim that McRae “stopped [her]

from getting training” (Ex. 8, ¶22), providing no context for that statement; nor does she cite to

any other record evidence to support this argument. Cf., e.g., Jeffreys v. City of N.Y., 426 F.3d

549, 554 (2d Cir. 2005)(“At the summary judgment stage, a nonmoving party ‘must offer some

hard evidence showing that its version of the events is not wholly fanciful.’” (emphasis

added))(quoting D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998)). In any event, record

evidence establishes that Plaintiff did attend housing training that she claims to have been denied

permission to attend (see Plaintiff’s Depo. Tr. (Ex. B), 135:17-20 (testifying to eventually being

granted permission to attend training), and 140:8-12 (“Q: Is there any training that you requested

to go to that [McRae] told you that you could not attend and you ultimately did not attend? A:

No.”)), which training occurred prior to filing the Verified Complaint (see Ex. P (Commission

Field Visit Report re: Plaintiff’s April 24, 2015 attendance at housing training)). Therefore,

Plaintiff’s “denial of training” argument is ineffective to show an adverse employment action.

Further, even had Plaintiff had been denied training after the filing of her Verified Complaint,

such a denial cannot be viewed as an adverse employment action in this instance since Plaintiff

has not pointed to any evidence that the alleged denial caused her a material employment harm.

See, e.g., Miller v. Ithaca, No. 3:10-cv-597, 2012 WL 1977974, at *5 (N.D.N.Y. June 1,

2012)(“When an employee cannot show material harm from a denial of training, such as a failure

to promote or a loss of career advancement opportunities, there is no adverse employment

action.” (quoting Hill v. Rayboy-Brauestein, 467 F. Supp.2d 336, 352 (S.D.N.Y. 2006)); see also

Kravitz v. N.Y.C. Trans. Auth., No 94-cv-5901, 2001 WL 1646513, at *6 (E.D.N.Y. Dec. 18,

2001)(finding where plaintiff “present[ed] no evidence, beyond his conclusory allegations, that

he was harmed by not receiving training” failed to raise a factual dispute that would defeat

summary judgment). Moreover, “[t]he mere fact that Plaintiff would have liked to attend

additional training courses standing alone is insufficient to constitute an adverse employment

action.” Miller, 2012 WL 1977974, at *5. In sum, “Plaintiff’s retaliation claim necessarily fails

as Plaintiff cannot establish that any adverse employment actions were taken against [her] as a

result of her protected activity.” (Support Memo. at 6.) See also DeRogatis, 904 F.3d at 187

(holding that party seeking summary judgment “may satisfy [its] burden of production under

Rule 56 by negating an essential element of the [non-moving party’s] claim . . . by demonstrating

the insufficiency of the [non-moving party’s ] own evidence” (quotations, alternations, and

citations omitted)); Crawford, 758 F.3d at 486 (same).

4. Plaintiff’s Purported Hostile Work Environment Claim

In her Rule 56.1 Response, Plaintiff contended she “also alleged a hostile work

environment” claim. (Rule 56.1 Response, ¶1.) A fair reading of the Complaint shows

otherwise; while in the “FACTS” section of her Complaint, Plaintiff states certain work

situations, which she characterizes as hostile (see Complaint, ¶¶95, 102, 111, 119), she does not

raise a hostile work environment cause of action based upon those allegations. (Cf., First-Sixth

Causes of Action, Complaint.) Nor can Plaintiff seek to amend her Complaint to add that cause

of action by way of her Opposition. See, e.g., Clean Coal Techs., Inc. v. Leidos, Inc., 377 F.

Supp.3d 303, 321 (S.D.N.Y. 2019) (“It is axiomatic that a complaint cannot be amended by the

briefs in opposition to a motion to dismiss.” (quoting LLM Bar Exam, LLC v. Barbri, Inc., 271 F.

Supp.3d 547, 580 (S.D.N.Y. 2017)); see also, e.g., Agu v. Rhea, No. 09-cv-4732, 2010 WL

5186839, at *1 n.2 (E.D.N.Y. Dec. 15, 2010)(noting that court “will not consider causes of

action first raised in Plaintiff’s opposition papers”) (emphasis in original); Nesheiwat v. City of

Poughkeepsie, N.Y., No. 11-cv-7072, 2013 WL 620267, at *3 (S.D.N.Y. Feb. 13,

2013)(“Plaintiff may not amend his . . . Complaint through legal arguments raised for the first

time in his opposition papers.” (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.

1998), cert denied, 525 U.S. 1104 (1999)).

In any event:

[t]o establish a prima facie case of hostile work environment, the

plaintiff must show that the discriminatory harassment was

“sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment,”

and “that a specific basis exists for imputing” the objectionable

conduct to the employer. Perry v. Ethan Allen, Inc., 115 F.3d 143,

149 (2d Cir. 1997) (internal quotation marks omitted). It is

axiomatic that the plaintiff also must show that the hostile conduct

occurred because of a protected characteristic. Alfano v. Costello,

294 F.3d 365, 374 (2d Cir. 2002).

Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015). “A plaintiff must show not only that she

subjectively perceived the environment to be abusive, but also that the environment was

objectively hostile and abusive.” Gorsynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.

2010).

Assuming, arguendo, that Plaintiff subjectively believed the work environment at the

Commission was hostile, she has presented no admissible evidence that a reasonable person

would objectively consider that environment to be hostile and abusive.7 Moreover, Plaintiff does

not cite to any evidence showing she complained of a hostile work environment, such that the

Defendants should be held liable for their purported non-response to said complaints. (See

Opp’n at 12-13.) This is especially noteworthy because Plaintiff, an attorney (see Plaintiff’s

Depo. Tr. (Ex. B), 69:17-19), is the EEOD Representative for the Commission, but did not file a

hostile work environment complaint with the EEOD. (See Part II(A)(6).)

5. Plaintiff’s § 1981 Claim

To support her § 1981 claim, Plaintiff argues that “[d]uring her interview with Chairman

Syed[,] he make it clear that he not only wanted a man, but he was seeking to hire employees of

Pakistani and Indian descent.” (Opp’n at 18 (without citation to the record).) Assuming Plaintiff

is referring to the Syed Statements, neither addresses race; thus, even if those Statements were

not uncorroborated hearsay evidence, they cannot establish an intent to discriminate on the bases

of race. Similarly, Plaintiff having “heard comments” “[o]ver the years” “regarding Haitians

7 For example, Plaintiff: raises incidents without any temporal context or that do not

demonstrate severity or pervasiveness (see Opp’n at 10 (citing Plaintiff’s Depo. Tr. (Ex. 2),

127:6-25; Plaintiff’s Depo. Tr. (Ex. 3), 33:12-23)); refers generally to the Syed Statements, but

without citation to the record and which, in any event, are uncorroborated hearsay (see id. at 11);

and, misstates her deposition testimony to make it seem that McRae believed Plaintiff should be

fired for being Haitian as opposed to misleading the Commission. (see Opp’n at 11 (citing Ex. 2,

Plaintiff’s Depo. Tr., 129:12-20).)

having AIDS” (id. (without citation to the record)) does not support her § 1981 claim because, in

addition to being unsubstantiated, those comments are not racially discriminatory. Finally, the

supposed comments made by McRae regarding Plaintiff’s Haitian heritage (see id. (without

citation to the record)), are unavailing to sustain Plaintiff’s § 1981 cause of action since, again,

they do not pertain to Plaintiff’s race. In any event, the one comment by McRae to which

Plaintiff alludes, concerning a belief she should be fired, is mischaracterized; examined in

context, Plaintiff testified that McRae commented to her that she should have been fired for lying

to the Commission for claiming she was Spanish. (See Ex. E, Plaintiff’s Depo. Tr., 47:20-25.8)

Moreover, Plaintiff fails to address the Defendants’ further argument that Plaintiff is

required to “demonstrate that a municipal policy caused a violation of her constitutional rights.”

(Support Memo at 12 (citing Jett, 491 U.S. at 702)). The Jett Court held that “to prevail against

[a municipal entity, a plaintiff] must show that the violation of h[er] § 1981 . . . was caused by a

custom or policy within the meaning of Monell and subsequent cases.” Id. Plaintiff has not

pointed to any evidence of a County custom or policy that caused her alleged § 1981 injury.

Therefore, even assuming, arguendo, a § 1981 violation in this case, there is no basis to impute

that liability for it upon Defendants.

6. Failure to File Notice of Claim; Plaintiff’s State Law Claims

“The purpose of the notice-of-claim requirement is to afford the municipality an adequate

opportunity to investigate the claim in a timely and efficient manner and, where appropriate, to

settle claims without the expense and risks of litigation.” Hardy v. N.Y.C. Health & Hosps.

Corp., 164 F.3d 789, 793–94 (2d Cir. 1999) (internal citation omitted); see also Tuff v. Vill. of

8 Although this is also inadmissible hearsay evidence, the Court highlights it to underscore the

questionable nature of Plaintiff’s claim, especially considering the faulty evidence upon which

she relies.

Yorkville Police Dep’t, No. 6:16-cv-473, 2017 WL 401241, at *11 (N.D.N.Y. Jan. 30, 2017)

(stating the notice-of-claim requirement is “designed ‘[t]o enable authorities to investigate,

collect evidence and evaluate the merit of a claim.’” (quoting Brown v. City of N.Y, 95 N.Y.2d

389, 392-93 (2000)); Javed v. Shuang Zhang, 872 F. Supp. 2d 194, 198 (N.D.N.Y. 2012). “In

light of these goals, ‘[n]otice of claim requirements are construed strictly by New York State

Courts.’” Chodkowski v. County of Nassau, No. 16-cv-5770, 2017 WL 10637956, at *7

(E.D.N.Y. Nov. 30, 2017) (quoting Hardy, 164 F.3d at 793); see also Varsity Transit, Inc. v. Bd.

of Educ. of City of N.Y., 5 N.Y.3d 532, 536, 840 N.E.2d 569, 571 (2005) (reaffirming that

“statutory requirements conditioning suit [against a governmental entity] must be strictly

construed . . . even where the Department had actual knowledge of the claim or failed to

demonstrate actual prejudice” and recognizing that “[w]e have repeatedly rejected, and now

reject again, proposals to compromise the strict statutory notice of claim requirement, because to

do so would lead to uncertainty and vexatious disputes.”). Hence, “[a] plaintiff’s failure to

comply with the mandatory New York Statutory notice-of-claim requirements generally results

in dismissal of h[er] claims.” Warner v. Vill. of Goshen Police Dep’t, 256 F. Supp.2d 171, 175

(S.D.N.Y. 2003) (citing Hyde v. Arresting Officer Caputo, No. 98-cv-6722, 2001 WL 521699, at

*4 (E.D.N.Y. May 11, 2001)); see also Henneberger v. County of Nassau, 465 F. Supp.2d 176,

199 (E.D.N.Y. 2006)(finding that “because plaintiffs failed to serve a timely notice of claim on

the County, all of their state law claims against the individual defendants and the County are

dismissed without prejudice”).

Even if the Court were to construe Plaintiff’s Verified Complaint as a Notice of Claim,

she has failed to comply with New York’s General Municipal Law § 50-i’s pleading

requirements that she allege: the Notice of Claim was served; at least thirty (30) days passed

since service of the Notice of Claim; and Defendants failed to satisfy her claim. Instead, Plaintiff

alleged:

3. Plaintiff filed a verified Complaint with the New York State

Division of Human Rights [on] May 8, 2015.

4. On March 4, 2016, the EEOC mailed to Plaintiff a Right to Sue

Letter.

5. Plaintiff competed all of her administrative prerequisites and

filed her complaint with 90 days of receipt of the Right to Sue

Letter.

(Complaint.) Moreover, the record is void of any evidence that Plaintiff served the County

Attorney with the Verified Complaint, see N.Y. Gen. Mun. Law §§50-e, 50-i, and her reliance on

her undated letter to then-County Executive Mangano as such proof is wholly unavailing. (See

Ex. 11.) Hence, Plaintiff’s failure to comply with the strictures of New York’s Notice of Claim

requirements warrants the dismissal of her state law claims.

Alternatively, because Plaintiff failed entirely to respond in opposition to the Defendants’

arguments regarding her state law claims, she is deemed to have abandoned those claims. See

Taylor v. City of N.Y., 269 F. Supp.2d 68, 75 (E.D.N.Y. 2003)(“Federal courts may deem a claim

abandoned when a party moves for summary judgment on one ground and the party opposing

summary judgment fails to address the argument in any way.”)(citing Douglas v. Victor Capital

Group, 21 F. Supp.2d 379, 393 (S.D.N.Y. 1998)(collecting cases)); see also Patacca v. CSC

Holdings, LLC, No. 16-cv-0679, 2019 WL 1676001, at *13 (E.D.N.Y. Apr. 17, 2019)(discussing

abandonment of claims; collecting cases); Green, 2019 WL 4392691, at *3 (collecting cases).

* * *

The Court has considered the Plaintiffs’ remaining arguments and finds them to be

without merit.

IV. Conclusion

Accordingly, IT IS HEREBY ORDERED that, after drawing all inferences and resolving

all ambiguities in favor of the Plaintiff but, finding that no rational jury could find in her favor,

the Defendants’ Summary Judgment Motion is GRANTED; all of Plaintiff’s claims are

dismissed as a matter of law. The Clerk of Court is directed to enter judgment in favor of the

Defendants and, thereafter, close this case.

* * *

The October 10, 2019 Status Conference is marked off the Court’s calendar.

SO ORDERED this 25th day of September 2019 at Central Islip, New York.

Sandra J. Feuerstein

/s/

Sandra J. Feuerstein

United States District Judge