Opinion

Saunders v. County Of Nassau

Court
District Court, E.D. New York
Filed
Apr 28, 2020
Cited by
0 cases
Authority
More cited than 26.5%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PAMELA SAUNDERS,

Plaintiff,

MEMORANDUM & ORDER

-against- 17-CV-1394(JS)(ARL)

COUNTY OF NASSAU, ROGER SOKENIS,

STEVEN O’MALLEY, RONALD ROGERS,

in their official and individual

capacities,

Defendants.

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APPEARANCES

For Plaintiff: Rick Ostrove, Esq.

Andrew C. Costello, Esq.

Leeds Brown Law, P.C.

One Old Country Road, Suite 347

Carle Place, New York 11514

For Defendants: Jillian Jagling, Esq.

Steven Anthony Torres, Esq.

West Group Law PLLC

81 Main Street, Suite 510

White Plains, New York 10601

Peter Adelman, Esq.

The Law Offices of Peter Adelman, LLC

95 6th Avenue

Brooklyn, New York 11217

SEYBERT, District Judge:

Plaintiff Pamela Saunders (“Plaintiff”) commenced this

action against defendants County of Nassau (the “County”), Roger

Sokenis (“Sokenis”), Steven O’Malley (“O’Malley”), and Ronald

Rogers (“Rogers”) (collectively, “Defendants”) alleging violations

of Title VII of the Civil Rights Act of 1964, New York State Human

Rights Law (“NYSHRL”), and the Fourteenth Amendment as enforced by

42 U.S.C. § 1983 arising out of alleged discriminatory and

retaliatory acts on the basis of race. (Compl., D.E. 1.)

Currently pending before the Court is the Report and Recommendation

of Magistrate Judge Arlene R. Lindsay (“R&R,” D.E. 48),

recommending that the Court grant Defendants’ motion for summary

judgment (Mot., D.E. 39; Defs. Br., D.E. 40-67; Pl. Opp., D.E. 43;

Defs. Reply, D.E. 44; Pl. Sur-Reply, D.E. 46). For the following

reasons, Plaintiff’s objections (Pl. Obj., D.E. 50; Defs. Obj.,

D.E. 52) are OVERRULED, the R&R is ADOPTED as stated, and

Defendants’ motion is GRANTED.

BACKGROUND

The Court presumes familiarity with the facts and ADOPTS

the detailed factual summary provided by Judge Lindsay. (R&R at

1-17); Ford v. Miller, No. 18-CV-1815, 2019 WL 4673445, at *1

(S.D.N.Y. Sept. 25, 2019). The facts are recited herein as

relevant to the Court’s analysis, and unless noted, are not in

dispute.1

I. The Parties

In 1995, the Nassau County Sheriff’s Department hired

Plaintiff, who is black, to work as a corrections officer at the

Nassau County Correctional Center (“NCCC”). (Compl. ¶¶ 13-14;

1 The facts are drawn from the parties’ Local Civil Rule 56.1

Statement and Counterstatement. (Defs. 56.1 Stmt., D.E. 25; Pl.

56.1 Stmt., D.E. 26.)

Defs. 56.1 Stmt. ¶ 1.) In 2005, Plaintiff was assigned to NCCC’s

Medical Unit. (Defs. 56.1 Stmt. ¶ 1.) O’Malley also worked in

the Medical Unit from 1998 to 2017, when he was transferred to the

Security Unit. (Defs. 56.1 Stmt. ¶ 2.) Rogers supervised various

NCCC employees and units, including the Medical and Security Units,

from 2005 until his retirement in December 2015. (Defs. 56.1 Stmt.

¶ 3.) Sokenis, one of Plaintiff’s supervisors, worked in the

Medical Unit from 2011 until his retirement in December 2015.

(Defs. 56.1 Stmt. ¶ 4.)

II. Facts

On August 30, 2013, Plaintiff submitted an inter-

department memorandum (the “2013 Memorandum”) to O’Malley wherein

she wrote, among other things, that she was “the target of

harassment and discrimination” and did not “take this matter

further” due to retaliation, was called a “rat” for protecting

black inmates, and that she was “blacklisted.” (See 2013 Memo.,

Estes Decl., Ex. 7, D.E. 40-9.) O’Malley forwarded the 2013

Memorandum to the Affirmative Action Unit pursuant to the

Department’s Regulations and Equal Employment Opportunity (“EEO”)

Policy. (Defs. 56.1 Stmt. ¶¶ 9-10.) Andre Guilty (“Guilty”), an

Affirmative Action Specialist assigned to the Bias Unit, met with

Plaintiff who stated that she did not want to file a complaint

because she intended to retain a lawyer and because “she had no

faith in the office or the process.” (Defs. 56.1 Stmt. ¶¶ 7, 12;

Pl. 56.1 Stmt. ¶ 12; Guilty Dep., Estes Decl., Ex. 9, D.E. 40-11,

24:24-25:24.)

Two years later, on June 30, 2015, Plaintiff submitted

an EEO complaint (the “EEO Complaint”) alleging discrimination and

retaliation on the basis of race, arising out of three incidents,

summarized below. (EEO Compl., Estes Decl., Ex. 50, D.E. 40-50.)

Guilty forwarded the EEO Complaint to Mary Ostermann

(“Ostermann”), the Director of Equal Opportunity Employment for

the Nassau County Office of Human Resources. (Pl. 56.1 Stmt. ¶ 15;

Defs. 56.1 Stmt. ¶ 8.) Ostermann testified that upon receipt of

an EEO Complaint, she, along with EEO Representatives, and

Affirmative Action Officers, determine if a complaint is a formal

complaint, a limited inquiry, or not appropriate for further EEO

review. (Defs. 56.1 Stmt. ¶ 16.) Ostermann testified that in a

limited inquiry, the EEO Office investigates and a limited inquiry

turns into an investigation where a protected class is implicated

and an adverse employment action occurred. (Defs. 56.1 Stmt.

¶ 17.) The EEO Office determined that the EEO Complaint did not

implicate any violations of EEO or department policies. (Defs.

56.1 Stmt. ¶ 21.)

As for the substance of the EEO Complaint, first,

Plaintiff wrote that on December 24, 2014, a Medical Unit nurse

needed an officer escort but Plaintiff left the building without

approval from her supervisor. (Defs. 56.1 Stmt. ¶¶ 82-83.)

Plaintiff alleges another officer “berated” her and was verbally

abusive. (Defs. 56.1 Stmt. ¶ 84; Pl. 56.1 Stmt. ¶ 84.) A few

days later, Sokenis suggested that Plaintiff seek assistance from

the Employee Assistance Program (“EAP”) because she told him “you

don’t know what I’m going through.” (Defs. 56.1 Stmt. ¶ 86.) On

January 5, 2015, Plaintiff sent Sokenis a memorandum, titled

“Verbal Abuse in an Aggressive Threatening Manor by Correctional

Staff,” describing the December 24, 2014 incident, arguing that

her EAP referral was unwarranted, and questioning why other

officers’ conduct did not warrant an EAP referral. (Jan. 5, 2015

Memo., Estes Decl. Ex. 33, D.E. 40-30.) After this incident, at

the request of Rogers, Plaintiff submitted additional memoranda

expanding on her allegations. (Jan. 6, 2015 Memo., Estes Decl.,

Ex. 34, D.E. 40-31; Jan. 8, 2015 Memo., Ex. 45, D.E. 40-42; Jan. 9,

2015 Memo., Estes Decl., Ex. 46, D.E. 40-43.)

On January 7, 2015, Rogers sent an email to O’Malley

asking him to “keep the officers involved in this incident

separate” and that “Sokenis should have minimal contact with

witnesses present when dealing with” Plaintiff. (Jan. 7, 2015

Email, Estes Decl. Ex. 35, D.E. 40-32.)

Second, Plaintiff wrote that on February 5, 2015 she was

denied overtime “in favor of white officers.” (EEO Compl. at ECF

p. 3.) Specifically, two overtime posts were available, one for

3.5 hours in the Core building and another for 2.75 hours in the

832 building. (Defs. 56.1 Stmt. ¶ 109.) Although Plaintiff

requested the 3.5 hour post, Sokenis assigned her to the 2.75 hour

post because Dwyer and Sokenis were working in the Core Building

and Sokenis was instructed to keep Plaintiff and Dwyer apart.

(Defs. 56.1 Stmt. ¶ 109.)

On February 20, 2015, Plaintiff sent a memorandum to the

First Vice President of the Nassau County Sheriff’s Correction

Officers Benevolent Association and a union delegate on release

from the NCCC asking for an investigation into the unequal

distribution of overtime. (Defs. 56.1 Stmt. ¶¶ 13-14.) Judge

Lindsay provided a detailed summary for context and explained the

manner in which overtime is distributed. (See R&R at 8-10.) Judge

Lindsay further explained that:

In 2013, Saunders earned $67,304.80 in overtime pay,

more than any other officer who worked at the NCCC.

Consistent with overtime rules, Saunders’ placement as

the top overtime earner in the NCCC could be taken into

account in assigning future overtime. In 2014, Saunders

was the fifty-seventh highest overtime earner among the

over 800 corrections officers, earning $38,844.10. In

2015, Saunders dropped eleven spots to the sixty-eighth

highest overtime earner, earning $26,871.27. Saunders

who in 2014 through July 2015 was assigned to the Medical

Unit asserts that although she regularly applied for

overtime with the Visiting and Security units her

overtime pay dropped during this period as a direct

result of her having complained about Lima and filing

her 2013 [M]emo. The defendants counter this assertion

noting that the Visiting Unit overtime log books for

2014 reveals that Saunders never signed up for overtime

and only signed up for overtime on eleven days in July

2015. Saunders counters there are other ways corrections

officers can be added to the overtime list other than

physically signing the log books.2 Saunders admits,

however, that there are a multitude of reasons why

overtime can fluctuate from year to year including

fluctuations in the amount of money spent by the County

on overtime. In addition, the number of officers

working, various management initiatives and whether an

officer has taken leave can also cause fluctuations in

overtime. Saunders also acknowledges that overtime in

the Visiting Unit was at a five-year low in 2015.

Indeed, by 2016, Saunders was once again a top overtime

earner, earning $61,106.70, and in 2017, Saunders was

the highest overtime earner amongst of all corrections

officers, earning $129,953.47.

(R&R at 9-10 (internal citations omitted).)

Third, Plaintiff described that while working an

overtime shift on June 23, 2015, Plaintiff was assigned to escort

an inmate to the hospital. (EEO Compl. at ECF p. 4.) Although

Sokenis instructed her to wait, Plaintiff went to the bathroom.

(EEO Comp. at ECF p. 4). As a result, Sokenis assigned another

officer to the transport.3 (Defs. 56.1 Stmt. ¶ 119.) On

2 Plaintiff disputes this fact by arguing another corrections

officer did not record all of her phone requests for overtime

and by citing to deposition testimony of Joseph Cavanaugh that

the same officer assigning overtime would “pass [Plaintiff] over

for overtime opportunities” in favor of a white officer. (Pl.

56.1 Stmt. ¶ 42.) Upon review of the docket, the Court notes

that neither party annexed the Joseph Cavanaugh deposition

transcript as an exhibit and the Court cannot consider these

allegations as admissible evidence.

3 Plaintiff disputes this fact in a long narrative. (Pl. 56.1

Stmt. ¶ 119 (citing to response in Pl. 56.1 Stmt. ¶ 115).) Upon

review of Plaintiff’s response, the Court finds there is no

dispute that Sokenis assigned another corrections officer to the

hospital run while Plaintiff was in the bathroom. Plaintiff

faults another non-party corrections officer for not informing

her “anyone was looking for her” or that “he was assigned to

June 24, 2015, both plaintiff and Sokenis submitted inter-

department memoranda. (Pl. June 2015 Memo., Estes Decl., Ex. 54,

D.E. 40-54; Sokenis June 2015 Memo., Estes Decl., Ex. 44, D.E. 40-

41.) Sokenis wrote that Plaintiff’s “actions of not being on post

caused an approximate half hour delay in bringing the [inmate to

the hospital] for treatment, and also the time wasted looking for

her. I believe she is not telling the truth. [Plaintiff] has a

long history of incidents with fellow Officers and Superior

Officers. The lack of her accountability for her actions is

causing problems for my ability to supervise the Medical Unit” and

requested Plaintiff’s transfer “out of the Medical Unit and put

under the direct supervision of a Corporal due to her inability to

go to[ ] or say on her assigned post.”4 (Sokenis June 2015 Memo.

at 2.) Rogers thereafter recommended Plaintiff’s reassignment to

the Security Unit. (Defs. 56.1 Stmt. ¶ 125.)

On June 24, 2015, Plaintiff was placed under Corporal

supervision (Defs. 56.1 Stmt. ¶ 132) and effective June 25, 2015,

cover her post” based on her belief that this other officer is

racist and “did not like her because she complained to Sgt.

Sokenis about his treatment” of black inmates. (Pl. 56.1 Stmt.

¶ 115.) This, however, does not dispute the fact that Plaintiff

was in the bathroom, and not at her post.

4 Prior to this request, Sokenis had requested his own transfer

out of the Medical Unit after the February 5, 2015 incident.

(Defs. 56.1 Stmt ¶ 112.)

was reassigned to the Security Unit5 (Defs. 56.1 Stmt. ¶ 127). On

July 13, 2015, Plaintiff’s reassignment orders were amended to

permit Plaintiff to work under the supervision of a Sergeant for

the purposes of overtime if a given area did not have a Corporal

assigned. (Defs. 56.1 Stmt. ¶ 138.) On March 23, 2017, the

Corporal supervision was lifted. (Defs. 56.1 Stmt. ¶ 139.)

ANALYSIS

I. Legal Standards

A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72.

Where a party “makes only conclusory or general objections, or

simply reiterates [the] original arguments, the Court reviews the

Report and Recommendation only for clear error.” Pall Corp. v.

Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting Barratt

v. Joie, No. 96-CV-324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4,

2002)). The district judge must evaluate proper objections de novo

and “may accept, reject, or modify the recommended disposition.”

Fed. R. Civ. P. 72(b)(3).

II. Plaintiff’s Objections

A. Hostile Work Environment

5 In July 2014, Plaintiff requested reassignment to the Security

Unit. (July 2, 2014 Memo., Estes Decl., Ex. 31, D.E. 40-28.)

In opposition to summary judgment, Plaintiff proffered

additional facts to support her hostile work environment claim.

As recited by Judge Lindsay, Plaintiff alleges that “sometime in

late March or early April 2013, [Plaintiff] learned from other

officers at the NCCC that” corrections officer John Lima (“Lima”)

made racist comments regarding black inmates and that she witnessed

an incident where Lima was aggressive with a black inmate. (R&R

at 3-4.) Plaintiff alleges that she complained to a Sergeant that

another officer called her an “inmate lover,” believed Plaintiff

filed a discrimination lawsuit against Lima, and said he would not

give her overtime in the Security Unit. (R&R at 4.) Plaintiff

approached the officer who, according to Plaintiff, admitted to

the comments and informed her she was “blackballed” and that no

one would hire her for overtime. (R&R at 5-6.)

Plaintiff first objects that Judge Lindsay applied the

wrong legal standard to her hostile work environment claim and

therefore incorrectly found that “none of [the claimed of comments]

amount of a constructive discharge.” (R&R at 38.) Plaintiff

argues that “the standard is lower—-all that is required is that

‘the harassment is of such quality or quantity that a reasonable

employee would find the conditions of her employment altered for

the worse.’” (Pl. Obj. at 10 (quoting Whidbee v. Garzelli Food

Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (emphasis

omitted.)

To sustain a claim, Plaintiff “must show that the

workplace was so severely permeated with discriminatory

intimidation, ridicule, and insult that the terms and conditions

of her employment were thereby altered.” Jian Li v. Chang Lung

Grp. Inc., No. 16-CV-6722, 2020 WL 1694356, at *11 (E.D.N.Y.

Apr. 7, 2020) (internal quotation marks and citation omitted)

(emphasis added). “‘[W]hether racial slurs constitute a hostile

work environment typically depends upon the quantity, frequency,

and severity of those slurs, considered cumulatively in order to

obtain a realistic view of the work environment.’” Id. (quoting

Fenner v. News Corp., No. 09-CV-9832, 2013 WL 6244156, at *13

(S.D.N.Y. Dec. 2, 2013)). When comparing the above-cited standard

to the R&R, the Court concludes that Judge Lindsay applied the

correct standard and OVERRULES this objection.

Plaintiff also asserts the conclusory objection that

summary judgment is inappropriate “[a]pplying the correct

standard, given the severity and the pervasiveness of the

comments.” (Pl. Obj. at 11.) Having determined that Judge Lindsay

applied the correct legal standard, the Court reviews Judge

Lindsay’s analysis for clear error. Finding no clear error, the

Court agrees that none of the complained of comments “rise to the

level of severity required to state a claim for hostile work

environment.” (See R&R at 37-38.) Accordingly, the Court ADOPTS

this portion of the R&R.

B. Discrimination Claims

Plaintiff next objects to Judge Lindsay’s recommendation

that the Court dismiss the Title VII, NYSHRL and Section 1983 race

discrimination claims. (Pl. Obj. at 11-17.) As relevant here,

Plaintiff argued in opposition to summary judgment that the

following constituted adverse employment actions: (1) the denial

of overtime (as a general principle) and (2) placement under

corporal supervision and her transfer to the medical unit that

resulted in her placement at the bottom of the Security Unit’s

overtime list thereby costing her overtime opportunities. (Pl.

Opp. at 13-14.) Judge Lindsay found that “none of the actions

relied upon by Saunders in support of her race discrimination claim

amount to a materially adverse change in the terms and conditions

of her employment” and “there is an absence of direct evidence of

discriminatory intent in the record.” (R&R at 30.)

As a preliminary matter, with respect to the objections:

(1) the denial of overtime and a loss of overtime opportunities

alone constitutes an adverse action (Pl. Obj. at 12) and

(2) regarding discriminatory intent (Pl. Obj. at 15-17), a

comparison between Plaintiff’s underlying brief and her objections

reveal that she has “done little more than rearrange [her]

arguments, often using largely identical wording.” Media Glow

Digital, LLC v. Panasonic Corp. of N. Am., No. 16-CV-7907, 2019 WL

1434311, at *3 (S.D.N.Y. Mar. 29, 2019) (subsequent history

omitted) (compare Pl. Opp. at 13 (restating the general principal

that a denial of and lost overtime opportunities constitutes an

adverse action) with Pl. Obj. at 12 (same); compare Pl. Opp. at

15-16 (arguing that Plaintiff was “treated differently than white

officers” and was “subject to disparate treatment” to argue an

inference of discrimination) with Pl. Obj. at 15-17 (same).) As

such, Plaintiff has “merely reiterated [her] original arguments

and the Court will, therefore, review this part of the Report for

clear error.” Media Glow, 2019 WL 1434311, at *3. Finding no

clear error, the Court OVERRULES these objections and ADOPTS those

portions of the R&R.

As for Plaintiff’s transfer to the Security Unit, Judge

Lindsay determined that the transfer, and any resulting loss in

overtime opportunities, did not constitute an adverse action. (R&R

at 27-28.) Judge Lindsay reasoned that she was “guided by the

principles set forth in” Brown v. City of Syracuse, 673 F.3d 141

(2d Cir. 2012) when finding that Plaintiff’s “transfer was

certainly undertaken in response to her supervisor’s complaint

that she lacked accountability and that her actions [caused] a

problem in his ability to supervise the Medical Unit” and because

the transfer “came on the heels of her having admittedly left her

post in violation of NCCC Regulations.” (R&R at 27.) Plaintiff

objects and argues that Judge Lindsay’s reliance on Brown was

misplaced because Plaintiff’s reassignment to the Security Unit

was not a form of discipline and whether a disciplinary policy was

“properly enforced” is an issue of fact. (Pl. Obj. at 14.)

However, because Plaintiff concedes that her placement under

corporal supervision was not “actually discipline” there is no

issue of fact as to whether a disciplinary policy was properly

enforced. (Pl. Obj. at 14.) Nonetheless, the Court agrees with

Judge Lindsay’s analysis and Plaintiff’s objections regarding

Judge Lindsay’s reliance on Brown are OVERRULED.

Plaintiff also argues that Judge Lindsay erred in

concluding that her transfer to the Security Unit was not an

adverse action because it “shows a total disregard for the

realities of being a [corrections officer]” because “[i]nteraction

with more inmates makes it more likely a CO can be harmed or even

killed,” and is “far more significant than ‘lost pay.’” (Pl. Obj.

at 13.) This argument, however, was not raised before Judge

Lindsay and is therefore not properly before this Court for

consideration. See Brown v. Smith, No. 09-CV-4522, 2012 WL 511581,

at *1 (E.D.N.Y. Feb. 5, 2012). Therefore, the Court also OVERRULES

this objection and adopts Judge Lindsay’s finding that the transfer

to the Security Unit was not an adverse action.6 Kennedy v. Adamo,

6 Indeed, assuming, without deciding, Plaintiff’s transfer was

considered an adverse employment action, Defendants’ proffered

reasons for the transfer, as articulated by Judge Lindsay (R&R

at 27), are legitimate and non-discriminatory. Phillips v. Long

Island Rail Rd. Co., No. 13-CV-7317, 2019 WL 1757176, at *15

(E.D.N.Y. Mar. 4, 2019), R&R adopted, 2019 WL 1758079 (E.D.N.Y.

No. 02–CV–1776, 2006 WL 3704784, at *3 (E.D.N.Y. Sept. 1, 2006)

(collecting cases).

Next, Judge Lindsay found that “neither the placement

under corporal supervision nor the alleged loss in overtime

opportunities associated with that supervision amounted to a

materially adverse action” because nineteen days later,

Plaintiff’s “supervision assignment was amended so that she could

work under the direct supervision of a sergeant for the purposes

of overtime if a given area did not have [a] corporal assigned”

and Plaintiff did not offer “evidence to suggest that she actually

lost overtime opportunities in the nineteen days prior to that

amendment.” (R&R at 29-30 (citations omitted).) Plaintiff objects

and argues that “the loss of overtime opportunities can be an

adverse action, even if it was only for 19 days.” (Pl. Obj. at

15.)

However, there is nothing in the record to support the

finding that Plaintiff lost overtime opportunities for the period

between her placement under corporal supervision and the date that

her assignment was amended. In support, Plaintiff cites to

Paragraph 133 of her Local Rule 56.1 statement that states “[a]s

Mar. 25, 2019). Plaintiff’s underlying argument that “placement

on corporal supervision and her transfer from the Medical Unit

occurred for a non-sensical reason as she did nothing wrong”

does not establish that “Defendant’s reason for [the adverse

employment action] is pretextual.” (Pl. Opp.at 22-23.)

a result of being placed under corporal supervision, an officer

may lose overtime opportunities . . .” (Pl. 56.1 Stmt. ¶ 133

(emphasis added).) Upon review of that paragraph, and the

underlying evidence cited in support, wholly missing is evidence

that Plaintiff actually lost overtime opportunities during those

nineteen days. As Plaintiff did not proffer evidence that “she

was denied overtime frequently enough to constitute a change in

the terms and conditions of her employment,” her claims of race

discrimination in connection with her placement under corporal

supervision necessarily fail and her objections are OVERRULED.

See Collymore v. City of N.Y., 767 F. App’x 42, 46 (2d Cir. 2019).

Finally, Plaintiff argues that the R&R incorrectly found

that “the manner in which her [EEO] complaints were investigated

did not give rise to an adverse employment action” (R&R at 29)

because “despite identifying eighteen individuals in her EEO

complaint, only one was interviewed (the bad actor)” and a “jury

could infer that this was unreasonable and inadequate” (Pl. Obj.

at 14). These objections are conclusory and general and the Court

therefore reviews Judge Lindsay’s analysis for clear error. See,

e.g., Oxford Techs., Inc. v. E./W. Indus., Inc., No. 18-CV-1992,

2019 WL 4291584, at *3 (E.D.N.Y. Sept. 11, 2019). Finding no clear

error, the Court ADOPTS the portion of the R&R that found Plaintiff

“has not presented any nonconclusory evidence that would permit a

reasonable jury to conclude that the defendants had failed to

respond in a reasonable and adequate manner.” (R&R at 28-29.)

Therefore, the Court agrees with the R&R’s conclusion

that Plaintiff did not suffer an adverse action and her race

discrimination claims are DISMISSED.

III. Retaliation Claims7

With respect to Plaintiff’s retaliation claims, Judge

Lindsay found for “the same reason previously stated,” Plaintiff’s

alleged adverse actions arising out of the placement under corporal

supervision, transfer to the Security Unit, and the investigation

of her EEO Complaint “do not amount to materially adverse action.”

(R&R at 34.) Plaintiff objects that Judge Lindsay incorrectly

applied the discrimination standard and argues these actions “are

adverse applying the lower [retaliation] standard” and that she

“was subjected to retaliatory adverse actions, or so a jury could

infer.” (Pl. Obj. at 14-15, 18.) Plaintiff also faults Judge

Lindsay for “mesh[ing]” the adverse action analysis with the

causation analysis under the burden-shifting standard adopted in

7 In support of her retaliation claims, Plaintiff argued in

opposition to summary judgment that the following were adverse

employment actions: (1) the denial of overtime opportunities by

a corrections officer who told her she was “blackballed” and

called Plaintiff a “rat” and “inmate lover;” (2) a decline in

overtime pay in 2014 after complaining about Lima’s abuse of a

black inmate; (3) the placement under corporal supervision and

the resulting loss in overtime opportunities; (4) the transfer

to the Security Unit; and (5) the investigation into Plaintiff’s

EEO complaint was unreasonable. (Pl. Opp. at 18-19.)

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct.

1817, 1824, 36 L. Ed. 2d 668 (1973), when concluding that the

denial of overtime opportunities was not a retaliatory adverse

action. (Pl. Obj. at 18-24.)

The Court need not address these objections because

assuming, without deciding, that Plaintiff established a prima

facie case of retaliation, Defendants articulated “legitimate,

nondiscriminatory reason[s]” for the alleged adverse employment

actions. Lawrence v. Chemprene, Inc., No. 18-CV-2537, 2019 WL

5449844, at *10-11 (S.D.N.Y. Oct. 24, 2019) (collecting cases and

finding it appropriate to “skip past the first step of McDonell

Douglas” because the “burden of establishing a prima facie case is

not onerous, and has been frequently described as minimal.”)

(internal quotation marks and citations omitted). Upon review of

the record, the Court finds that Defendants’ proffered reasons, as

detailed by Judge Lindsay, for: the limited inquiry into

Plaintiff’s EEO Complaint (detailed at R&R at 28-29), for

reassigning Plaintiff to the Security Unit (detailed at R&R at 26-

28), and for an alleged decline in overtime and lost overtime

opportunities in connection with these actions, including

placement under corporal supervision (detailed at R&R at 8-10, 35-

36) are legitimate, nondiscriminatory, and nonretaliatory.8

Lawrence, 2019 WL 5449844, at *11.

The McDonnell Douglas analysis thus shifts “the burden

to Plaintiff to show that the Defendants’ legitimate,

nondiscriminatory justifications for” the alleged adverse actions

were “were mere pretexts for discrimination.” Lawrence, 2019 WL

5449844, at *12. “‘In such situations, plaintiff carries the

ultimate burden of persuasion and must produce evidence such that

a rational finder of fact could conclude that the adverse action

taken against her was more likely than not a product of

discriminatory animus.’” Id. (quoting Kerman-Mastour v. Fin.

Indus. Regulatory Auth., Inc., 814 F. Supp. 2d 355, 370 (S.D.N.Y.

2011)). “‘Mere speculation is insufficient; a plaintiff must offer

specific, admissible evidence of pretext.’” Id. (quoting Fall v.

N.Y. State United Teachers, 289 F. App’x 419, 421 (2d Cir. 2008)

(summary order)).

Plaintiff’s objections regarding “pretext” largely

mirror the arguments in her underlying brief. (Compare Pl. Obj.

at 18-21 (arguing direct evidence, temporal proximity, and

pretext) with Pl. Opp. at 20-23 (same).) Even considering these

8 Plaintiff’s objection to the chart analyzing NCCC’s overtime

expenses are OVERRRUELD. (Pl. Obj. at 23-24; Overtime Expenses,

Estes Decl., Ex. 29, D.E. 40-26.) The chart was properly

attached to the Declaration of Michael Grunwald and there are

thus no concerns regarding authenticity or admissibility. (See

Grunwald Decl., Estes Decl., Ex. 15, D.E. 40-17, at ¶¶ 71-93.)

arguments, the Court finds that Plaintiff “offers no other evidence

on the record, such as testimony of a third party or written

documents, that could lead to any sort of reasonable inference”

that Defendants were discriminating and retaliating on the basis

of race when conducting a limited inquiry into Plaintiff’s EEO

Complaint, placing Plaintiff under corporal supervision,

reassigning Plaintiff to the Security Unit, and for the alleged

decline in overtime and overtime opportunities in connection with

these actions. Ghirardelli v. McAvey Sales & Serv., Inc., 287 F.

Supp. 2d 379, 391 (S.D.N.Y. 2003), aff’d sub nom. Ghirardelli v.

McAvey Sales & Servs., Inc., 98 F. App’x 909 (2d Cir. 2004).

Indeed, “if this matter were to go to trial, a jury would

be presented, on the one hand, with [Plaintiff’s] conclusory and

unsubstantiated allegations that [race] must have been a factor in

[the alleged adverse actions], and, on the other hand, with

[Defendants’] sworn testimony that it was not. Such a conflict

does not raise a genuine issue of material fact; rather, it pits

sworn testimony against speculation, conjecture and self-serving

conclusions.” Id. (collecting cases). Thus, after a review of

the entire record in context of the legitimate reasons Defendants

proffered for the alleged adverse actions, and assuming Plaintiff

“could establish the elements of a prima facie case of retaliation,

a rational jury could not conclude that the grounds [Defendants]

articulated are false and merely a pretext for retaliation for

protected activity.” Id. (citing Gonzalez v. Beth Israel Med.

Ctr., 262 F. Supp. 2d 342, 357–58 (S.D.N.Y. 2003)). Therefore,

Plaintiff’s retaliation claims are DISMISSED.

CONCLUSION

For the stated reasons, Plaintiff’s objections are

OVERRULED, the R&R is ADOPTED as stated, and Defendants’ motion

for summary judgment is GRANTED. The Clerk of the Court is

directed to mark this case CLOSED.

SO ORDERED.

/s/_JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: April 28 , 2020

Central Islip, New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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