# Boyce-Herbert v. New York Presbyterian Hospital

> District Court, E.D. New York · January 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10303795

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303795

## How later opinions describe it (automated extraction)

- finding that the employer’s concern for the quality of care to patients following the plaintiff's multiple instances of poor judgment established a legitimate, non- discriminatory reason for its actions
- holding that “[f]ederal 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,” and dismissing claims not addressed in plaintiff's opposition

## Opinion text

FILED
UNITED STATES DISTRICT COURT IN CLERK'S OFFICE
EASTERN DISTRICT OF NEW YORK JS DISTRICT COURT EO...
□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ X & JAN 23 2000
IRMA BOYCE-HERBERT, ,
: BROOKLYN OFFICE
Plaintiff,

- against -
>: MEMORANDUM AND ORDER
THE NEW YORK AND PRESBYTERIAN 17-cv-01388 (AMD) (SJB)
HOSPITAL,

Defendant.
wine cin isn nari nancies:
ANN M. DONNELLY, United States District Judge:
On March 10, 2017, the plaintiff brought this action against her former employer,
defendant New York and Presbyterian Hospital, alleging that the defendant wrongfully
terminated her and did not promote her in violation of Title VII and the ADEA. (ECF Nos. 1, 8.)
The defendant moved for summary judgment. (ECF Nos. 48, 52.) For the reasons that follow,
the defendant’s motion is granted.
BACKGROUND
Defendant New York and Presbyterian Hospital is a not-for-profit corporation which
provides inpatient, ambulatory, and preventative care to patients. (Defendant’s Rule 56.1
Statement (“Def.’s 56.1”) § 1, ECF No. 53.)' The plaintiff, a 66-year-old African-American

The plaintiff, who is represented by counsel, did not submit a Rule 56.1 counter-statement of
undisputed facts, despite two orders to do so, and did not explain her failure to do so. Nor did she submit
any brief in opposition to the defendant’s motion. Instead, she submitted a declaration, aspects of which
conflict with her deposition testimony. (Plaintiffs Declaration (“PI. Decl.”), ECF No. 57.) I have
reviewed the entire record in connection with this motion, including the defendant’s 56.1 statement, and
construe the facts in the light most favorable to the plaintiff, the non-moving party. See Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).

woman, began working for the defendant in 1991 as a unit clerk. (Def.’s 56.1 {§ 7-8; Plaintiff's
Deposition (“P1. Dep.”) 289:17-19, ECF Nos. 61-1, 61-2.) She claims that the defendant failed
to promote her, placed her on “a different trajectory” from her white or male colleagues, paid her
less than similarly situated white employees and male employees, made false claims against her
and suspended her unfairly. (ECF No. 8 ff 5-6, 20.) Ultimately, the defendant fired her in 2015.
(Def.’s 56.1 74.)
In 2009, the defendant assigned the plaintiff to 2 North Unit, a medical and surgical unit
for patients preparing to undergo kidney transplants. (Def.’s 56.1 J] 22, 24.) Deborah Stetz, a
white woman over the age of forty, became her direct supervisor. (Def.’s 56.1 F921, 22.) From
2009 to 2014, the plaintiff worked the day shift alongside another unit clerk, Tawanna Rutland,
an African-American woman. (Def.’s 56.1 ff] 25-27.) After the defendant promoted Ms.
Rutland to another position in June 2014, the plaintiff worked with David Von Kaenel, a 57-
year-old white man hired as the unit’s second unit clerk. (Def.’s 56.1 § 27-29.)? Her
responsibilities included answering telephones, greeting patients’ families and visitors, ordering
office supplies, keeping the printers and fax machines stocked with paper and toner, and tracking
patients’ admissions and discharges to and from her assigned unit. (Def.’s 56.1 § 19.)
Beginning in 2009, the plaintiff received citations and complaints for poor work
performance, inappropriate behavior, and other misconduct. The plaintiff asserts that these
citations and complaints were unfounded. (Pl. Decl. | 20.) When she began working in her unit
in 2009, she overheard Mary Prufeta, the Director of Nursing, tell Ms. Stetz to “mak[e] sure” to
issue “a number of citations” against the plaintiff so that the defendant would have “documentary

2 The defendant assigned two other unit clerks to work in the plaintiff's unit for the evening shift—
09°30) Manning and Thelma Carberry, two African-American women in their sixties. (Def.’s 56.1 1 □

evidence” to “get rid of [her].” (/d. J 12.) According to the plaintiff, the resulting suspensions
were part of a pattern of discrimination culminating in her termination in 2015. _
Both parties agree that between 2009 and 2015, Ms. Stetz and Ms. Prufeta issued
multiple corrective actions to the plaintiff and suspended her, but the defendant denies that its
decisions were motivated by discrimination. The defendant says the plaintiff was disruptive,
violated hospital rules, did not follow supervisors’ instructions, and used abusive and
inappropriate language towards coworkers and supervisors. (Def.’s 56.1 Jf 23, 34, 37-41, 42-70;
ECF Nos. 51-1 through 51-9.) According to Ms. Stetz, the plaintiff on a number of occasions
raised her voice to supervisors and staff members and refused requests to help staff members.
(ECF No. 51.) She also spoke rudely to a patient’s visitor, who complained to staff about the
incident. (Def.’s 56.1 § 42.) In addition to the corrective actions, which laid out the basis for the
disciplinary action, Ms. Stetz made notes about her conversations with the plaintiff and the basis
for each corrective action. (ECF Nos. 51-1 through 51-9.) The plaintiffs declaration—the only
document she has filed in opposition to the defendant’s motion—does not address many of these
suspensions and corrective actions. (Pl. Decl.) For those that she does address, she claims that
they did not happen, that Ms. Stetz and Ms. Prufeta fabricated allegations, or that her supervisors
and coworkers behaved inappropriately. (/d.)
In addition to Ms. Stetz’s and Ms. Prufeta’s complaints, other supervisors also
complained about the plaintiff's behavior and work performance between 2009 and 2015. In
April 2012, Joanne Modica, a patient care director supervising the plaintiffs unit, issued a
corrective action to the plaintiff for engaging in three instances of “inappropriate and disruptive
behavior,” including that the plaintiff “responded disrespectfully and with a threatening
demeanor towards her Patient Care Director,” (ECF No. 51 7 14; ECF No. 49, Ex. 8; Def.’s 56.1

{| 35-37), and suspended the plaintiff for three days. (Def.’s 56.1 4 38; ECF No. 49, Ex. 8; ECF
No. 51 4 14). According to the plaintiff, Ms. Modica said she did not want to issue the corrective
action or suspension but had been told to do so. (Pl. Dep. 177:5-20.) A month later, Ms. Modica
issued the plaintiff another corrective action for “inappropriate and disruptive behavior” when
the plaintiff “responded disrespectfully to coworkers.” (ECF No. 49, Ex. 9; Def.’s 56.1 4 38.)
Ms. Modica suspended the plaintiff for an additional five days. (/d@.) The plaintiff similarly
disputes that this incident occurred, and maintains that Ms. Modica once again told her that there
was no basis for the corrective action. (Pl. Dep. 180-184; Def.’s 56.1 4 38.)
In October of 2012, two other patient care directors in other units complained to Ms.
Stetz about the plaintiff. Chip Holmes, a patient care director from a critical care unit,
complained that the plaintiff refused his request to order a patient escort. (ECF No. 51 { 16; PI.
Dep. 186-187, 190:7-21.) At her deposition, the plaintiff said that she tried to ask for the
patient’s information so that she could help arrange the patient transport, but that Mr. Holmes
“stormed off.” (Pl. Dep. 190:11-21.) That same month, Ms. Stetz received a second complaint
from another patient care director, Natalie Mohamed, who reported that the plaintiff refused to
help train a newly-hired unit clerk. (ECF No. 51 417.) The plaintiff responds that she did try to
help Ms. Mohamed with her request, but that there was a misunderstanding. (Pl. Dep. 189-192.)
In June of 2015, staff members reported that the plaintiff raised her voice and pointed her
finger at a nurse in another unit. (Def.’s 56.1 47; ECF No. 51.) The defendant’s human
resources department formally investigated the complaint, and after consulting with Ms. Stetz
and the reporting supervisor, issued a final written warning to the plaintiff on June 11, 2015. (PI.
Dep. 219:13-25, 253:15-254:9; ECF No. 49, Ex. 11; ECF No. 50 19.) The plaintiff does not
address this incident in her declaration.

Two additional incidents occurred after the defendant issued a final written warning to
the plaintiff. First, Ms. Stetz asked the plaintiff to replace the toner for a unit printer, which
physicians and nurses used for patient progress notes, medication orders, and other patient care
documents; without the printer, doctors and nurses could not print these important documents,
posing a risk to patients. (Def.’s 56.1 55-56; ECF No. 51 {ff 23-27.) The plaintiff did not
replace the toner for an hour and a half. (Def.’s 56.1 4 60; ECF No. 51, Ex. 8.) She claims she
could not find replacement toner and had to order it from another unit. (Pl. Decl. {J 21-24.)
The next day, Ms. Stetz learned that the plaintiff had discharged a patient incorrectly.

(ECF No. 51 28-29; ECF No. 51, Ex. 9.) According to the report—which is generated when
situations arise that could harm or injure a patient—the plaintiff discharged the patient, and after
she realized her mistake, asked patient admissions to reverse the discharge. (ECF No. 51 { 28-
29; ECF No. 51, Ex. 9.) The admissions representative told her to inform the nurse that she
would have to re-order the patient’s medication. The plaintiff went on her lunch break without
telling the nurse about the issue. (ECF No. 51 { 26; ECF No. 51, Ex. 9.) The assigned nurse
noticed that the patient’s chart was missing, confirmed that the patient should not have been
discharged, and administered the patient’s medication. (ECF No. 51 4 26; ECF No. 51, Ex. 9.)
According to the defendant, if the assigned nurse had not recognized the mistake, the patient
would have missed a scheduled dose of medication. (/d.)
Ms. Stetz contacted Nayisha (Gonzalez) Luquis in the human resources department.
(Def.’s 56.1 4 71.) Ms. Stetz recommended terminating the plaintiff's employment, citing her
disciplinary history and the two recent incidents. (Def.’s 56.1 J 71-73.) Ms. Luquis spoke with
the director of human resources and reached the same conclusion. (/d. | 73.) On October 16,

2015, Ms. Stetz and Ms. Prufeta met with the plaintiff and informed her that her employment had
been terminated. (/d. J 74.)
On November 5, 2015, the plaintiff filed a complaint with the New York State Division
of Human Rights (“NYSDHR”) accusing the defendant of discriminating against her based on
her age, creed, race, color, and sex. (Def.’s 56.1 § 2.) The NYSDHR notified her that her
verified complaint would also be filed with the U.S. Equal Employment Opportunity
Commission (“EEOC”) on November 5, 2015. Ud. 93; Pl. Dep. 24-25, 39-40; ECF No. 49, Ex.
3.) On May 2, 2016, the NYSDHR issued a Determination and Order After Investigation,
concluding that there was no probable cause to believe that the defendant discriminated against
the plaintiff. (/d. 74.) On August 5, 2016, the EEOC mailed a Dismissal and Notice of Rights
to the plaintiff. (7d. 5.) The plaintiff commenced this action by filing a complaint on March
10, 2017, which she amended on June 1, 2017. (ECF Nos. 1, 8.)
‘LEGAL STANDARD
Summary judgment is appropriate only if the parties’ submissions show that there is “no
genuine dispute as to any material fact,” and the movant is “entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). The movant has the “burden of showing the absence of any genuine dispute as to a
material fact.” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). “Once the moving
party has met this burden, the party opposing summary judgment must identify specific facts and
affirmative evidence that contradict those offered by the moving party to demonstrate that there
is a genuine issue for trial.” Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 349 (E.D.N.Y.
2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The non-moving party “may

3 The individual defendants were dismissed sua sponte on March 24, 2017. (ECF No. 5.)

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.” D’Amico v. City of New
York, 132 F.3d 145, 149 (2d Cir. 1998). The court is to resolve all ambiguities and draw all
reasonable inferences in favor of the non-moving party. See Kaytor v. Elec. Boat Corp., 609
F.3d 537, 545 (2d Cir. 2010).
Courts should exercise “an extra measure of caution” when considering summary
judgment motions in discrimination actions. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.
2001) (citing Gallo v. Prudential Residential Servs., Lid. P’ship, 22 F.3d 1219, 1224 (2d Cir.
1994)); see also Kwan vy, Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (“there is a need
for caution about granting summary judgment to an employer in a discrimination case where . . .
the merits turn on a dispute as to the employer’s intent[.]”) (citation and internal quotation marks
omitted). However, summary judgment “remains available for the dismissal of discrimination
claims in cases lacking genuine issues of material fact.” Holtz, 258 F.3d at 69 (citation omitted).
Even in an action alleging discrimination, the plaintiff “must provide more than conclusory
allegations to resist a motion for summary judgment.” Delaney vy. Bank of Am. Corp., 766 F.3d
163, 170 (2d Cir. 2014) (citation omitted).
DISCUSSION
The plaintiff alleges discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2000e-17 (Title VII), and the Age Discrimination in Employment Act of 1967
(ADEA). The defendant moves for summary judgment on all of the plaintiffs claims.
I. Timeliness
A plaintiff must commence an action within 90 days of receiving a Notice of Right to Sue
from the EEOC. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996); 42

U.S.C. § 2000e-5()(1) (governing Title VII claims); 29 U.S.C. § 626(e) (governing ADEA
claims). Although the EEOC sent the Notice of Right to Sue on August 5, 2016, the plaintiff did
not commence this litigation until March 10, 2017, 217 days after the EEOC’s letter was sent.
(ECF No. 1.)
“The requirement that a lawsuit be brought within 90 days of receiving a right to sue
letter from [the] EEOC is treated like a statute of limitations.” Manley v. New York City Police
Dep’t, No. 05-CV-679 (FBLB), 2005 WL 2664220, at *1 (E.D.N.Y. Oct. 19, 2005) (citation
omitted). Therefore, under certain circumstances, the ninety-day filing requirement can be
waived, estopped, or equitably tolled. South v. Saab Cars USA, Inc., 28 F.3d 9, 11 (2d Cir.
1994). However, the plaintiff does not provide any valid basis for extending the right-to-sue
period, and I do not find any basis for doing so in the record.
In her declaration, the plaintiff states that she did not receive the right to sue letter, and
that she asked the EEOC to send it to her in December 2016. (PI. Decl. § 4.) She also says the
replacement notice she received on December 30, 2016 was “destroyed by a flood” caused by a
leak in her apartment. (Jd. J] 5-6.)* In her deposition, however, the plaintiff said she did not
remember if she had gotten the notice, but acknowledged that it was properly addressed to her.
(Pl. Dep. at 58:15-60:7.) She did not mention the conversation with the EEOC about a
subsequent notice, the replacement notice, or say that a leak in her apartment destroyed her copy
of the notice. (/d.) “[F]actual allegations that might otherwise defeat a motion for summary
judgment will not be permitted to do so when they are made for the first time in the plaintiff's
affidavit opposing summary judgment and that affidavit contradicts her own prior deposition
testimony.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).

4 ‘In her first complaint, which the plaintiff filed pro se, she stated that the December 2016 notice °
was “damaged because of a water leak.” (ECF No. 1 at 6.)

In any event, the plaintiff does not provide a reason to toll the ninety-day requirement.
Her claim that she did not receive the letter, even if credited, is not sufficient; a plaintiff's
assertion that she did not receive a properly mailed notice, without more, cannot be a basis for
extending or equitably tolling the 90-day requirement. See, e.g., Smith v. Chase Manhattan
Bank, No. 97-CV-4507 (LMM), 1998 WL 642930, at *1, 4 (S.D.N.Y. Sept. 18, 1998) (finding
equitable tolling warranted where plaintiff said he did not receive an EEOC notice “because the
EEOC sent it to an incorrect address,” plaintiff had previously “notified the EEOC of the change
in his address,” there had not been “any lack of diligence on plaintiff's part,” and he commenced
court action “within ninety days” after receiving the notice). “[I]n the absence of a recognized
equitable consideration, the court cannot extend the limitations period by even one day.”
Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (citation omitted).
The plaintiffs claims are therefore time-barred. Nevertheless, I address the merits of the
plaintiff's claims in an abundance of caution.
Il. Merits
Title VII makes it unlawful for an employer to “discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment” because of the
individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—2(a)(1). Under the
ADEA, it is unlawful for an employer to “discriminate against any individual . . . because of
such individual’s age.” 29 U.S.C. § 623(a)(1).
Disparate treatment claims under Title VII and the ADEA are analyzed using the
McDonnell Douglas burden-shifting framework. Bowen-Hooks v. City of New York, 13 F. Supp.
3d 179, 209-10 (E.D.N.Y. 2014) (citing AfcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802—
03 (1973)). Under the framework, the plaintiff must first establish a prima facie case of

discrimination. See Bowen-Hooks at 209-10; see also Holleman vy. Art Crating Inc., No. 12-CV-
2719, 2014 WL 4907732, at *46 (E.D.N.Y. Sept. 30, 2014) (citations omitted). Once the
plaintiff makes that showing, “the burden of production [shifts] to the employer and requir[es]
the employer to come forward with its justification for the adverse employment action against
the plaintiff.” Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). If the employer
meets this burden, “the presumption ‘drops out of the picture’” and the plaintiff must
demonstrate that the employer’s explanation is pretextual. /d. (citation omitted); see also Garcia
v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir. 2013) (citing Raytheon Co. v. Hernandez,
540 U.S. 44, 50 (2003)).
To establish a prima facie case of discrimination, the plaintiff must show that: (1) she is a
member of a protected class; (2) she is qualified for the position; (3) she has suffered an adverse
employment action; and (4) the circumstances give rise to an inference of discrimination. See
McDonnell Douglas Corp., 411 U.S. at 802-04 (1973); Littlejohn, 795 F.3d at 307. The
defendant does not dispute that the plaintiff, an African-American woman, is a member of a
protected class. Nor does the defendant deny that the plaintiff was qualified for her position or
that she suffered an adverse employment action. The only disputed issue is whether the
defendant fired the plaintiff under circumstances giving rise to an inference of discrimination.
The plaintiff has not established any inference of discrimination. She asserts in her
declaration that her supervisors fabricated the complaints against her and that she was “treated
differently” and “harass[ed]” as she became older, but she does not say that her supervisors or
coworkers ever disparaged her because of her age, race, gender, or religious affiliation. (Pl. Decl
13, 40.) In fact, in her deposition, the plaintiff agreed that neither her supervisors nor her
coworkers disparaged her because of her age, race, gender, or religious affiliation. Rather, the

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plaintiff attributed her employer’s dislike of her to the fact that they did not view her as a “team
player” because she “never came in and discussed any of [her] family doing what [they’re] going
to do, where [they] went on vacation or whatever.” (Def.’s 56.1 J 52; Pl. Dep. 201:18 to 202:2.)
Thus, the plaintiff has failed “to present even minimal proof that her suspension and termination
were driven, even in part, by discrimination.” Placide-Eugene v. Visiting Nurse Serv. of N.Y., 86
F. Supp. 3d 132, 148 (E.D.N.Y. 2015) (granting summary judgment). Her “allegations are not
supported by a single piece of evidence other than [the plaintiff's] own opinions and
conjectures.” Morris v, Ales Grp. USA, Inc., No. 04-CV-8239 (PAC) (THK), 2007 WL
1893729, at *8 (S.D.N.Y. June 29, 2007). Drawing all reasonable inferences in the light most
favorable to the plaintiff, no reasonable jury could infer that the defendant acted with a
discriminatory motive. See Caines v. City of New York, No. 13-cv-676 (VEC), 2015 WL
13021892, at *7 (S.D.N.Y. July 8, 2015) (citing Bikerstaffv. Vassar Coll., 196 F.3d 435, 448 (2d
Cir. 1998) (courts should “carefully distinguish between evidence that allows for a reasonable
inference of discrimination and evidence that gives rise to mere speculation and conjecture” at
the prima facie stage)).
Because the plaintiff has not established a prima facie case, it is unnecessary to undertake
the burden-shifting analysis. Nevertheless, even if the plaintiff had established a prima facie
case, the defendant has articulated legitimate, non-discriminatory reasons for terminating her
employment. She was rude to coworkers and supervisors and refused to perform duties that were
unquestionably part of her job, leading to suspensions, corrective actions and warnings. In two
instances, which ultimately led the defendant to fire her, the plaintiff's behavior affected patient
safety. Under these circumstances, the defendant’s decision to fire the plaintiff was legitimate
and non-discriminatory. Williams v. Woodhull Med. & Mental Health Ctr., 891 F. Supp. 2d 301,

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315-16 (E.D.N.Y. 2012) (finding that the employer’s concern for the quality of care to patients
following the plaintiff's multiple instances of poor judgment established a legitimate, non-
discriminatory reason for its actions). The plaintiff cites no evidence of discrimination, and the
court will not second guess the defendant’s decision. Sanders v. Mount Sinai Med. Ctr., No. 98-
CV-828 (AGS), 1999 WL 1029734, at *6 (S.D.N.Y. Nov. 10, 1999) (dismissing claims on
summary judgment where the employer showed that the plaintiffs failures impacted patient
care).
The plaintiffs claim that Ms. Stetz and Ms. Prufeta fabricated accusations to “punish
[her] for complaining about the hostile work environment” is not persuasive. (Pl. Decl. [§ 13-
14.) Not only does the record show that the suspensions and corrective actions were based on
actual violations, it also demonstrates that other coworkers and supervisors made similar
complaints about the plaintiff's work performance. Other supervisors and colleagues—and once,
an outside visitor—complained that the plaintiff raised her voice, argued with colleagues, and
behaved rudely and unprofessionally.> The plaintiff’s “profound inability to get along with her
co-workers . . . represents a legitimate, non-discriminatory reason” for the defendant’s decision
to take disciplinary action. Mieri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985); Boata v. Pfizer,
Inc., No. 10-CV-4390 (KBF), 2013 WL 432585, at *6 (S.D.N.Y. Jan. 31, 2013), aff'd, 554 F.
App’x 73 (2d Cir. 2014) (finding that employer’s “evidence that [the plaintiff] was unable to get
along with others in his workplace” served as a legitimate, non-discriminatory explanation for

5 Some of the supervisors the plaintiff accuses of discriminating against her—including Ms. Stetz,
who is over the age of 40, and Shara Walters, who is an African-American woman—are members of the
same protected class as the plaintiff. (Def.’s 56.1 J] 63, 89.) These facts undercut the claim that either
supervisor acted with a discriminatory intent based on the plaintiff's gender, race or age. Drummond v.
IPC Int'l, Inc., 400 F. Supp. 2d 521, 532 (E.D.N.Y. 2005) (“[a] well-recognized inference against
discrimination exists where the person who participated in the allegedly adverse decision is also a
member of the same protected class.”).
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the challenged employment action), aff'd, 554 F. App’x 73 (2d Cir. 2014) (footnote and citation
omitted). There is no evidence that the defendant’s reasons for firing the plaintiff were
pretextual, or that the plaintiff's membership in a protected class was the “real reason” for the
adverse action. See Ruiz v. Cty. of Rockland, 609 F.3d 486, 492 (2d Cir. 2010); Chapotkat v.
Cty. of Rockland, 605 F. App’x 24, 26 (2d Cir. 2015) (“[T]o resist summary judgment on an
ADEA claim successfully, a plaintiff must demonstrate that a reasonable jury could conclude by
a preponderance of the evidence that the employer’s explanations were pretextual and that, but
for the plaintiff's age, the employer would not have taken the action it did.”) (citing Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)).
The plaintiff's failure to promote claims and pay discrimination claims similarly fail on
the merits. The plaintiff asserts that she was “overlooked for promotion for more than two
decades.” (ECF No. 57 4 35.)° The plaintiff does not say that she “applied for a specific position
or positions and was rejected therefrom, rather than merely asserting that on several occasions
she [ ] generally requested promotion.” Johnson v. Delphi Energy & Engine Mgmt. Sys., Inc.,
No. 98 Civ. 7872, 1999 U.S. App. LEXIS 10025, at *2-3 (2d Cir. May 20, 1999) (quoting
Brown, 163 F.3d at 710) (quotation marks omitted). In the absence of any other evidence that
the plaintiff applied for—or was denied—a promotion, her failure to promote claims must be
dismissed. °

As for the plaintiff's pay discrimination claims, she does not dispute that she earned more
than the only white, male comparator she identifies. (Def.’s 56.1 {J 28, 83-88.) Nor does she
deny that the highest paid unit clerks employed by the defendant were African-American women

6 The only evidence in the record relating to promotions shows that in 2014, Ms. Stetz promoted
Ms. Rutland, an African-American woman working as a unit clerk in the same unit as the plaintiff. (PI.
Decl { 36; see also Def.’s 56.1 § 27.) ,

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over the age of 40. (Def.’s 56.1 {| 29-30, 86.) Even if these facts were not fatal to the plaintiff's
claims, she does not respond to or address any of the defendant’s arguments about her pay
discrimination claims, or even renew the original claim in her declaration. Because she has not
addressed this claim in her opposition, “the Court deems it abandoned.” Aouatif v. City of New
York, No. 07-CV-1302 (RRM) (JO), 2019 WL 2410450, at *14 (E.D.N.Y. May 31, 2019); see
also Taylor v. City of N.Y., 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (holding that “[f]ederal
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,” and
dismissing claims not addressed in plaintiff's opposition) (citing Douglas v. Victor Capital Grp.,
21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (collecting cases)). Therefore, the plaintiff's remaining
claims are also dismissed.
CONCLUSION
For the reasons set out above, the defendant’s motion for summary judgment is granted.

SO ORDERED.

s/Ann M. Donnelly
Donnelly
United States District Judge

Dated: Brooklyn, New York
January 22, 2020

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303795. Public record. Not legal advice.