Perard v. Jamaica Hospital Medical Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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PASCALE PERARD,

Plaintiff,

MEMORANDUM AND ORDER

-against- 18-CV-6661 (KAM)(RER)

JAMAICA HOSPITAL MEDICAL CENTER,

Defendant.

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MATSUMOTO, United States District Judge:

On November 21, 2018, plaintiff Pascale Perard

commenced this action against Jamaica Hospital Medical Center

(“JHMC”, “Hospital” or “defendant”), pursuant to Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000 et

seq.1, the New York State Human Rights Law (“NYSHRL”), N.Y. Exec.

Law 290, et seq., and the New York City Human Rights Law

(“NYCHRL”), N.Y. Admin. Code 8-101, et seq., seeking a

declaratory judgment and damages to address the injuries she

allegedly suffered due to racial and/or national origin

1 Under Title VII, only incidents occurring on or after March 1, 2017 (or 300

days before plaintiff fil ed her EEOC complaint) are timely and relevant.

Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). For plaintiff’s

NYSHRL and NYCHRL claims, occurrences before November 21, 2015 (three years

before her complaint) are time-barred. Taylor v. City of New York, 207 F.

Supp. 3d 293, 302 (S.D.N.Y. 2016) (citing Kassner v. 2nd Ave. Delicatessen

Inc., 496 F.3d 229, 238 (2d Cir. 2007).

discrimination, hostile work environment, and retaliation. (ECF

No. 1, Complaint.) On December 14, 2018, plaintiff filed an

amended complaint, raising the same claims. (ECF No. 7, “Am.

Compl.”)

Pending before the court is defendant’s motion for

summary judgment. For the reasons set forth below, the court

grants in part and denies in part defendant’s motion.

PROCEDURAL HISTORY

On December 27, 2017, plaintiff filed a Verified

Complaint with the U.S. Equal Employment Opportunity Commission

(“EEOC”). (ECF No. 36-5, Ex. C.) On August 23, 2018, the EEOC

issued a Dismissal and Notice of Rights, which granted plaintiff

the right to sue in federal court. (ECF No. 36-6, Ex. D.) On

November 21, 2018, plaintiff commenced this action by filing a

complaint in federal court. (ECF No. 1, Compl.) On December

14, 2018, plaintiff filed her Amended Complaint. (ECF No. 7,

Am. Compl.)

On December 13, 2019, defendant filed a letter

requesting a pre-motion conference in anticipation of its motion

for summary judgment and requesting a briefing schedule. (ECF

No. 28, Letter Requesting a Pre-Motion Conference.) On December

20, 2019, plaintiff filed her letter in opposition to

defendant’s request for a pre-motion conference. (ECF No. 29,

Letter.) On December 23, 2019, the parties participated in a

pre-motion conference. The parties reported that they had

attended a mediation, and were not able to settle the case. The

court approved a briefing schedule for defendant’s motion for

summary judgment.

On February 28, 2020, defendant filed its motion for

summary judgment on the claims in plaintiff’s amended complaint.

(ECF No. 32, Notice of Motion for Summary Judgment.) Defendant

asserts that “the evidence shows that Plaintiff was not

discriminated against, or even treated ‘less well’ than others

because of her race and nationality, or based on any other

protected characteristic,” “most of the incidents of which

Plaintiff complains are time-barred,” and with respect to any

claims that are not time-barred, there is no material issue of

fact that Plaintiff has failed to establish that she is entitled

to relief under any theory. (ECF No. 33, “Def. Mem.” at 9.)

Plaintiff’s opposition brief argues that defendant’s motion

should be denied “based upon the existence of multiple material

issues of fact from which a juror could find that Ms. Perard was

the victim of discrimination based upon her race and national

origin” and that defendant excluded certain “critical” material

facts. (ECF No. 36, “Opp. Mem.” at 7.)

BACKGROUND

I. Factual Background

The facts in this section are taken from defendant’s

Rule 56.1 statement (ECF No. 33-17, “Def. 56.1”), plaintiff’s

response to defendant’s Rule 56.1 statement (ECF No. 36-1, “Pl.

56.1”), and the parties’ declarations and exhibits, and they are

considered in the light most favorable to plaintiff, the non-

moving party.

FRCP 56 and Local Rule 56.1

The court notes that, as required by Federal Rule of

Civil Procedure 56 and Local Rule 56.1, defendant’s 56.1

statement of undisputed material facts is supported by citations

to admissible evidence. In plaintiff’s counter-56.1 statement,

plaintiff did not comply with Local Rule 56.1(d), which provides

in relevant part, “Each statement by the movant or opponent

pursuant to Rule 56.1(a) and (b), including each statement

controverting any statement of material fact, must be followed

by citation to evidence which would be admissible, set forth as

required by Fed. R. Civ. P. 56(c).” L.R. 56.1(d). Nor did

plaintiff submit a “separate, short and concise statement of

additional material facts as to which it is contended that there

exists a genuine issue to be tried.” See Local Rules of the

United States District Courts for the Southern and Eastern

Districts of New York (“L.R.”) 56.1(b).

Because plaintiff fails to cite to evidence as

required by the Local Rules and the Federal Rules of Civil

Procedure, the court has examined the facts and supporting

evidence that defendant set forth in its 56.1 statement to be

undisputed. See Giannullo v. City of New York, 322 F.3d 139,

140 (2d Cir 2003) (where “the opposing party [] fails to

controvert a fact so set forth in the moving party’s Rule 56.1

statement, that fact will be deemed admitted”) (citing Local

Rule 56.1(c)).

The court has independently reviewed defendant’s

citations to facts in the record, which plaintiff has largely

admitted. Although plaintiff purports to dispute a small number

of facts, the court generally finds those disputed facts to be

trifling rather than material. (See generally 56.1 Resp. ¶¶ 3,

20, 24, 27, 41, 66.) Moreover, as noted above, plaintiff has

not cited to any evidence in support of the naked denials and

assertions in plaintiff’s 56.1 responsive statement. (Compare

56.1 Resp. ¶ 29 and ECF No. 33-11, Ex. H; compare 56.1 Resp. ¶

58 and JA, Ex. G, 119:3-18; JA, Ex. E, 49:2-17; compare 56.1

Resp. ¶ 66 and JA, Ex. G, 131:5-25.2) Furthermore, although

plaintiff’s opposition memorandum accuses defendant of

2 For example, and inter alia, plaintiff has not countered defendant’s 56.1

statement that Ms. Singh, a CNM, was paid a starting salary of $125,000,

which was $5,000 more than some CNMs, because she worked the less desirable

overnight shift from 11:00 p.m. to 7:00 a.m. Although plaintiff “maintain[s]

at least some motivation for Singh’s higher salary was to groom her for a

higher position and due to favoritism towards her race and national origin,”

plaintiff has cited to no evidence in support of that factual assertion.

Accordingly, plaintiff’s unsupported and conclusory assertion must be and is

rejected.

“conveniently exclud[ing] from its list of ‘material facts’

certain facts that are critical to this matter,” plaintiff

failed to provide a counterstatement of material facts and

supporting evidence pursuant to the Local Rules and the Federal

Rules of Civil Procedure. Thus, pursuant to Federal Rule of

Civil Procedure 56(e)(2) and (3), the court may properly

consider defendant’s facts undisputed for purposes of the motion

for summary judgment.

Plaintiff’s Employment at JHMC (2002-2018)

Plaintiff, an American citizen who self-identifies as

black and Haitian, was hired by JHMC in 2002 as a registered

nurse. (ECF No. 36-1 (“56.1 Resp.”) ¶¶ 10-12; ECF No. 36-4,

Perard Dep. 34:4-9.) Plaintiff immigrated to the United States

over 30 years ago. (56.1 Resp. ¶ 9.)

JHMC, the defendant, is situated in and serves an

underserved community, and was struggling financially. (56.1

Resp. ¶ 3.) The Hospital employs a diverse workforce, which

reflects the neighborhood in which the Hospital is located,

Richmond Hill, with its population that speaks approximately 138

languages. (Id. ¶¶ 2, 4.) The Hospital attempts to hire

bilingual employees because the ability to communicate in the

same language as a patient facilitates patient care. (Id. ¶ 7.)

The Hospital’s staff speaks approximately 100 different

languages. (Id. ¶ 8.)

Plaintiff was initially hired to work as a staff nurse

in the Emergency Department (“ED”) by Ms. Maryanne Settner, and

went on to hold two other positions at the Hospital, also within

the ED. (Id. at 34:10-20.) Plaintiff worked full-time at JMHC

for approximately 16 years in the ED, until her resignation on

May 25, 2018. (Id. at 33:19-25-33:1-2; ECF No. 36-1 ¶¶ 88-91.)

Plaintiff is married to Carl Perard, who is also black and

Haitian. (56.1 Resp. ¶¶ 14-15.) As of February 2020, Mr.

Perard worked at JMHC as the Assistant Head Nurse of the

Intensive Care Unit (“ICU”). (Id. ¶ 14.)

The Hospital has a policy regarding how to handle

employee discrimination complaints. (Id. ¶ 16.) Plaintiff

never received a negative performance evaluation, from February

2015 until she resigned from JMHC. (Id. ¶ 18.) In addition,

plaintiff was never subject to discipline during her 16-year

tenure at JHMC. (Id. ¶ 19.)

From approximately April 2014 until December 2017,

Anata Kanevsky was employed as the Director of Nursing of the ED

and the ICU at the Hospital. (Id. ¶ 20.) Kathleen Scher was

hired as Chief Nursing Officer (“CNO”) in February 2015, and Ms.

Kanevsky reported directly to CNO Scher. (Id. ¶¶ 21-22.) Ms.

Kanevsky was plaintiff’s direct supervisor from 2014 until

plaintiff went on medical leave on about November 27, 2017.

(Id. ¶ 23.) Though the parties dispute whether Ms. Kanevsky was

also Carl Perard’s direct supervisor, the parties agree that Ms.

Kanevsky made the decision to promote Carl Perard from

registered nurse to Assistant Head Nurse. (Id. ¶¶ 24-25.) Ms.

Kanevsky and plaintiff both worked the day shift, 7:00 a.m. to

3:00 p.m., and Ms. Kanevsky often “covered” for plaintiff and

frequently dealt with the negativity regarding the ED department

in order to protect plaintiff. (Id. ¶¶ 26-27.)

The parties dispute the frequency with which plaintiff

encountered CNO Scher during the latter three years of

plaintiff’s employment. Plaintiff agrees, however, that CNO

Scher only visited the ED five times, for less than 15 minutes

each time, during a period of a year and a half. (Id. ¶¶ 29-

30.) The parties further agree that CNO Scher belittled the

entire ED team. (Id. ¶ 31.) CNO Scher never “messed” with Carl

Perard. (Id. ¶ 32.) Plaintiff alleges that Robin Blackwell, a

registered nurse who previously worked as a Director in the

Medical/Surgical Department and then as a Director of Regulatory

Affairs, between 2012 until the present, made discriminatory

racial comments to plaintiff, including calling her “black

Haitian,” which Ms. Blackwell has denied in a sworn declaration.

(Id. ¶ 33; ECF No. 33-1, Blackwell Decl. ¶¶ 2-6.) It is

undisputed that Ms. Blackwell’s husband of 43 years is black,

and that they have four biracial children together. (ECF No.

36-1, 56.1 Resp. ¶¶ 34-35.)

Ms. Blackwell did not work with or supervise plaintiff

in the ED. Ms. Blackwell, who had no work responsibilities

involving the ED, did not routinely visit the ED, where

plaintiff worked. (ECF No. 33-1, Blackwell Decl. ¶ 5.) Ms.

Blackwell stated that she “rarely” interacted with plaintiff,

and would more typically deal with plaintiff’s supervisor, Ms.

Kanevsky, as they were both Directors in their respective

departments. (Id. ¶ 4.)

Plaintiff’s 2015 Promotion to CNC

Plaintiff had limited supervisory experience in her

position as a staff nurse. (Id. ¶ 36.) In April 2015,

plaintiff was promoted to Clinical Nurse Coordinator (“CNC”).

(Id. ¶ 37.) The CNC position was vacated by the prior CNC,

“Manny,” who was from the Philippines, and who left the role

after being promoted to Clinical Nurse Manager. (Id. ¶ 40.)

When plaintiff was promoted to CNC from staff nurse, her base

annual salary increased from $81,853.39 to $114,576.80 per year.

(Id. ¶ 42.) At the time of plaintiff’s promotion from staff

nurse to CNC, the Hospital had three total CNM positions in the

ED, as discussed below. (Id. ¶ 43.) The “purpose of promoting

Plaintiff to CNC was to give her the opportunity to ‘grow and

train.”3 (ECF No. 33-4, Ex. A, 12:3-10.)

3 Plaintiff failed to submit a “separate, short and concise statement of

additional material facts as to which it is contended that there exists a

genuine issue to be tried.” Local Rules of the United States District Courts

In 2015, CNO Scher opposed plaintiff’s promotion to

Clinical Nurse Manager. Despite being turned down for a

promotion to Clinical Nurse Manager, plaintiff was promoted from

staff nurse to a Clinical Nurse Coordinator in the ED.

Plaintiff continued to serve as a CNC until approximately one

and a half years later, when she was promoted to CNM, the

position for which she had interviewed and applied in 2015.

Individuals Promoted or Hired as CNMs Prior to Plaintiff’s

Promotion to CNM

Prior to plaintiff’s promotion to CNM in late 2016,

Ms. Kanevsky hired three CNMs during her employment at the

Hospital: Alicia McCaskie and Diahann Singh for the ED, and

Robert Pryce for the ICU. (Id. ¶ 46.) McCaskie, Singh, and

Pryce each had years of supervisory experience prior to being

hired by defendant. (Id. ¶ 47.)

Before Ms. Kanevsky officially offered someone a

position, she needed to get approval from CNO Scher. (Id. ¶

48.) Mr. Pryce, who is black and from Jamaica, and speaks with

a heavy accent, was offered a starting salary of $120,000. (Id.

¶¶ 49-50; ECF No. 33-2, Pryce Decl. ¶ 4.) Mr. Pryce was

for the Southern and Eastern Districts of New York (“L.R.”) 56.1(b).

Further, pursuant to Loca l Rule 56.1(d), “Each statement by the movant or

opponent pursuant to Rule 56.1(a) and (b), including each statement

controverting any statement of material fact, must be followed by citation to

evidence which would be admissible, set forth as required by Fed. R. Civ. P.

56(c). Accordingly, the court finds the assertion that plaintiff was

promoted to give her an opportunity for career growth is established.

subsequently approached by CNO Scher, who encouraged him to

apply for a Director position. (Id. ¶ 51.) Mr. Pryce was

promoted to Director of Nursing Critical Care. (Id. ¶ 52.)

Like Mr. Pryce, Ms. McCaskie was hired at a starting

salary of $120,000, and she worked from 3:00 p.m. to 11:00 p.m.

in the ED. (Id. ¶¶ 53, 55.) Prior to Ms. McCaskie’s hire, CNO

Scher met with her and approved hiring Ms. McCaskie. (Id. ¶¶

55-56.) Ms. McCaskie self-identifies as black and is from St.

Lucia. (Id. ¶ 57.) McCaskie also speaks with an accent. (ECF

No. 33-2, Pryce Decl. ¶ 6.)

Ms. Singh was hired at a starting salary of $125,000

because she worked the less desirable night shift, from 11:00

p.m. to 7:00 a.m. (Id. ¶ 58.) Ms. Singh self-identifies as

black and Guyanese. (Id. ¶ 59.)

Plaintiff’s 2016 Promotion to CNM

In August 2016, plaintiff met with Trina Cornet, Vice

President of Human Resources, to discuss her desire to be

promoted to CNM and to have her salary increased to $120,000.

(56.1 Resp. ¶ 60.) Plaintiff alleges that Mrs. Cornet made

discriminatory racial comments to her, i.e. telling plaintiff,

“You’re black and from Haiti.” (Id. ¶ 62.) Mrs. Cornet is

black and is married to a Haitian man, with whom she has three

children. (Id. ¶¶ 63-64.) Furthermore, Mrs. Cornet is part

Haitian herself, as she has a Haitian grandmother. (Id. ¶ 65.)

Notwithstanding Mrs. Cornet’s Haitian background and family,

plaintiff alleges that Mrs. Cornet targeted plaintiff, due to

plaintiff’s race and national origin. (Id. ¶ 66.)

In October 2016, Mrs. Cornet agreed to increase

plaintiff’s salary to $120,000, retroactive to August 4, 2016.

(Id. ¶ 68.) Plaintiff’s new base salary of $120,000 was higher

than some CNMs who were white, Asian, and black. (Id. ¶ 69.)

In the year that plaintiff was promoted to CNM, plaintiff also

requested the Hospital’s annual general wage increase of 3%,

which, calculated based on her new salary of $120,000, would

have equaled an additional $3,600 before taxes. (Id. ¶ 70.)

Though Mrs. Cornet initially believed plaintiff would

be eligible for both the salary increase and the general wage

increase in the same year, she later advised plaintiff that she

had been mistaken, as there was an existing Hospital policy that

does not grant a general wage increase to an employee who had

already received a salary increase within the past year. (Id.

¶¶ 71-72.) In 2017, the year following plaintiff’s promotion to

CNM, plaintiff received the annual general wage increase, which

increased her salary to $123,600. (Id. ¶ 77.)

Plaintiff’s Work Responsibilities as CNM

As a CNM, plaintiff, along with the other CNMs in the

ED, were required to perform bedside care, staff nurse duties,

charge nurse duties, push stretchers, triage, and provide relief

when others went on break, because Ms. Kanevsky asked them to

perform such duties. (Id. ¶ 78.) Although plaintiff was

scheduled to work 37.5 hours per week, she and others were

sometimes asked to work in excess of their scheduled hours due

to staffing issues. (Id. ¶ 80.) In addition to her salary,

plaintiff was paid according to her “straight time” hourly rate

for any hours that she worked beyond her scheduled 37.5 hours

per week. (Id. ¶ 81.) Other employees also received “straight

time” pay, over and above their annual base salary. (Id. ¶ 82.)

Plaintiff Commenced Medical Leave and Ended Employment at JHMC

On November 27, 2017, plaintiff was assaulted by a

patient while working at the Hospital, and shortly thereafter,

plaintiff went on medical leave. (Id. ¶ 83.) On December 27,

2017, plaintiff filed a complaint with the EEOC. (Id. ¶ 84.)

While plaintiff was on medical leave, no supervisors from the

Hospital contacted plaintiff. (Id. ¶ 85.) Plaintiff began

searching for a new job while she was on medical leave. (Id. ¶

86.) By the time plaintiff returned to JHMC from medical leave,

plaintiff had received multiple job offers, from Trinitas

Hospital and Montefiore Hospital. (Id. ¶ 87.) Plaintiff

discussed with Ms. Kanevsky whether or not she should follow Ms.

Kanevsky to Trinitas Hospital, accept the other job offer, or

return to JHMC. (ECF No. 33-10, Ex. G, 193:15-25.)

On May 25, 2018, plaintiff returned to the Hospital

from medical leave, with a letter of resignation in hand, which

she had written the night before. (Id. ¶ 88; see also ECF No.

36-4, Ex. B, at 190:11-20; ECF No. 36-10, Ex. G, at 193:2-4.)

Unidentified staff members allegedly told plaintiff when she

arrived at the Hospital, “Don’t stay because they might kick you

out, just like they did to Anata Kanevsky.” (Id. ¶ 89; see also

ECF No. 36-4, Ex. B, at 187:2-16.) Plaintiff was afraid of

being fired because Ms. Kanevsky had been fired five months

prior, in December 2017. (Id. ¶ 90.) Plaintiff resigned on the

spot, before 9:00 a.m., on May 25, 2018. (Id. ¶ 91.) Plaintiff

did not see CNO Scher the day that she resigned. (Id. ¶ 92.)

The following week, also in May 2018, plaintiff began

working at Trinitas Hospital as Associate Director of the ED.

(Id. ¶ 93.) Plaintiff’s immediate supervisor at Trinitas

Hospital is Ms. Kanevsky. (Id. ¶ 94.) Plaintiff decided to

work at Trinitas because she wanted “protection,” which she felt

that Ms. Kanevsky could provide. (Id. ¶ 95.) Plaintiff’s

starting salary at Trinitas Hospital was $130,000 per year.

(Id. ¶ 96.) As of November 7, 2019, plaintiff was still

employed by Trinitas Hospital and earning $132,000 per year.

(Id. ¶ 97.)

Plaintiff’s Filing of an EEOC Complaint

The facts regarding plaintiff’s EEOC complaint, which

were sworn to be true under penalty of perjury, are taken from

plaintiff’s EEOC Complaint. (ECF No. 33-5, Ex. B.) In August

2016, plaintiff met with Mrs. Cornet to complain about her

salary, her title, and how she was allegedly being treated by

CNO Scher and her “clique.” Mrs. Cornet allegedly told her,

“What more do you want, you’re black and from Haiti, in that

poor country you . . . would not make that much anyway.” (Id.

at 8.)

In September 2016, plaintiff met with Mrs. Cornet a

second time “to get an update” on her grievance from the

previous month. Although Mrs. Cornet told plaintiff that her

credentials and education were not on the level of the other

CNMs, Mrs. Cornet eventually agreed at the meeting to promote

plaintiff to nurse manager, a position with a $120,000 annual

salary and a 3% annual raise. (Id.)

Plaintiff alleges that “Robin Blackwell would come to

ED on many occasions to harass [her] and mak[e] racial comments

such as ‘black Haitian.’” Plaintiff alleges that associates of

CNO Scher laughed and made fun of her. (ECF No. 36-5, Ex. C, at

7.)

During a May 2017 staff meeting with CNO Scher, Ms.

Kanevsky, plaintiff, and other nurse managers in attendance, CNO

Scher allegedly pointed fingers at Ms. Kanevsky and plaintiff,

stating that they were “not approachable” and “raising her

voice” at them. (Id. at 9). Plaintiff deems this behavior by

CNO Scher to be “retaliation.” (Id.) During a July 2017 staff

meeting conducted by CNO Scher, CNO Scher allegedly looked at

Ms. Kanevsky with “a dirty look” and, in a “hostile” tone,

dispelled rumors that she was leaving. (Id.) During a staff

meeting in August 2017, Ms. Susan Iavino allegedly made a

comment about a Russian nurse, asking whether English was her

second language. Plaintiff was offended because “[i]t was a

laughing matter to everyone in the room” except her, for whom

English was her second language. (Id. at 9-10.) In September

2017, CNO Scher and others allegedly conducted interviews to

replace plaintiff. Plaintiff also alleges that CNO Scher

coerced Ms. Kanevsky to give plaintiff bad performance

evaluations. (Id. at 10.4)

Plaintiff stated that the reason she quit her job at

JHMC in May 2018 was that she “had concluded that [her]

contributions at JHMC were unappreciated and unrewarded, and

that it was unconscionable for [her] to remain with a company

that neither rewards [her] accomplishments nor recognizes [her]

potential[.]” (Id. at 13.) She further stated that she

4 This is somewhat supported by the record. Ms. Kanevsky testified at her

deposition that she rewro te plaintiff’s performance review to make it “as

neutral [as] possible” and tone down the praise.” (JA 116:20-117:3.)

“believe[d] that [she] was forced to resign due to the hostile

and discriminatory work environment.” (Id.)

EEOC’s Right to Sue Letter

On August 23, 2018, the EEOC issued plaintiff a Right

to Sue Letter and a written determination of plaintiff’s charge.

(Id. ¶ 98.) The EEOC determined that plaintiff’s allegations

did not show any evidence of unlawful discrimination or

retaliation against plaintiff. (Id. ¶ 99.) The EEOC also

determined that plaintiff had suffered no adverse employment

action. (Id. ¶ 100.) The EEOC further determined that the

behavior plaintiff claimed forced her to resign was not

sufficiently severe or pervasive to rise to the level of a

hostile work environment. (Id. ¶ 101.) The EEOC also

determined that, although plaintiff may have been offended by

the incidents and behavior in the workplace, a reasonable person

would not have been. (Id. ¶ 102.) Finally, the EEOC determined

that a reasonable person would not have felt compelled to resign

under the same circumstances that plaintiff experienced and,

thus, plaintiff was not constructively discharged. (Id. ¶ 103.)

LEGAL STANDARD

I. Motion for Summary Judgment

Summary judgment is appropriate where “the movant

shows that there is no genuine dispute as to any material fact,”

Fed. R. Civ. P. 56(a), “and the facts as to which there is no

such issue warrant the entry of judgment for the moving party as

a matter of law.” Kaytor v. Electric Boat Corp., 609 F.3d 537,

545 (2d Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). “All ambiguities must be resolved in favor

of the non-moving party and all permissible inferences from the

factual record must be drawn in that party's favor.” Zalaski v.

City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.

2010).

If the moving party can show that “there is no genuine

issue as to any material fact and that it is entitled to

judgment as a matter of law, the nonmoving party must come

forward with specific facts showing that there is a genuine

issue for trial.” Peterson v. Regina, 935 F. Supp. 2d 628, 634

(S.D.N.Y. 2013) (citing Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)). “When opposing parties

tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

To defeat a motion for summary judgment, the non-

moving party must identify probative, admissible evidence from

which a reasonable factfinder could find in his favor. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). It

“requires the nonmoving party to go beyond the pleadings and by

[his or] her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.” 477

U.S. at 261 n.2 (citations omitted). “Only disputes over facts

that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment. . . .

[I]t is the substantive law’s identification of which facts are

critical and which facts are irrelevant that governs.” 477 U.S.

at 248. If, as to the issue on which summary judgment is

sought, there is any evidence in the record from any source from

which a reasonable inference could be drawn in favor of the

nonmoving party, summary judgment is improper. Chambers v. TRM

Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citations

omitted).

The Second Circuit has “repeatedly expressed the 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.” Holcomb v. Iona Coll., 521 F.3d 130,

137 (2d Cir. 2008). “Where an employer has acted with

discriminatory intent, direct evidence of that intent will only

rarely be available, so that ‘affidavits and depositions must be

carefully scrutinized for circumstantial proof which, if

believed, would show discrimination.’” Id. (citing Gallo v.

Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224

(2d Cir. 1994)). But “[e]ven in the discrimination context,

however, a plaintiff must provide more than conclusory

allegations to resist a motion for summary judgment.” Id.

(citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).

“Summary judgment is appropriate even in discrimination cases,

for, as [the Second Circuit has] noted, ‘the salutary purposes

of summary judgment – avoiding protracted, expensive and

harassing trials – apply no less to discrimination cases than to

. . . other areas of litigation.’” Weinstock v. Columbia Univ.,

224 F.3d 33, 41 (2d Cir. 2000) (citation omitted).

DISCUSSION

The material relevant facts are largely undisputed.

As noted above, defendant moves to dismiss the Amended

Complaint, in its entirety, because “the evidence shows that

Plaintiff was not discriminated against, or even treated ‘less

well’ than others because of her race and nationality, or based

on any other protected characteristic,” “most of the incidents

of which Plaintiff complains are time-barred,” and with respect

to any claims that are not time-barred, there is no material

issue of fact that Plaintiff has failed to establish that she is

entitled to relief under any theory. (ECF No. 33, “Def. Mem.”

at 9.)

For the reasons set forth below, the court GRANTS

defendant summary judgment with respect to each of plaintiff’s

federal and state claims, and with respect to one of plaintiff’s

NYCHRL claims.

I. Plaintiff’s Race and National Origin Discrimination

Claims under Title VII and the NYSHRL Fail

a. Legal Standard

Under the Supreme Court’s McDonnell Douglas framework,

“a plaintiff must first establish a prima facie case of

discrimination by showing: (1) she belonged to a protected

class, (2) was qualified for the position she held or sought,

and (3) suffered an adverse employment action (4) under

circumstances giving rise to an inference of discriminatory

intent.” Fanelli v. New York, 200 F. Supp. 3d 363, 370

(E.D.N.Y. 2016) (citing Terry v. Ashcroft, 336 F.3d 128, 137-38

(2d Cir. 2003)).

“A plaintiff sustains an adverse employment action if

he or she endures a materially adverse change in the terms and

conditions of employment.” Joseph v. Leavitt, 465 F.3d 87, 90

(2d Cir. 2006) (citation and internal quotation marks omitted).

“Examples of materially adverse employment actions include

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.” Feingold v.

New York, 366 F.3d 138, 152 (2d Cir. 2004) (alternation,

citation, and internal quotation marks omitted). See also Vega

v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir.

2015) (“A plaintiff sustains an adverse employment action if he

or she endures a materially adverse change in the terms and

conditions of employment.”); Rasko v. New York City Admin. for

Children's Servs., 734 F. App'x 52, 54 (2d Cir. 2018) (“Informal

discipline, criticism, or counseling does not constitute an

adverse act if no change in working conditions accompanies

it.”).

Plaintiff “bears the initial burden of proving by a

preponderance of the evidence a prima facie case of

discrimination; it is then the defendant’s burden to proffer a

legitimate non-discriminatory reason for its actions; the final

and ultimate burden is on the plaintiff to establish that the

defendant’s reason is in fact pretext for unlawful

discrimination.” Moschetti v. N.Y.C. Dep’t of Educ., 778 F.

App’x 65, 65-66 (2d Cir. 2019). “The employer's burden of

showing a legitimate non-discriminatory reason for its actions

is not a particularly steep hurdle.” Whethers v. Nassau Health

Care Corp., 956 F. Supp. 2d 364, 375 (E.D.N.Y. 2013) (citing

Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir.

2009)), aff'd, 578 F. App'x 34 (2d Cir. 2014). “To rebut an

employer's proffered non-discriminatory rationale for its

actions and withstand summary judgment, a plaintiff must present

more than allegations that are ‘conclusory and unsupported by

evidence of any weight.’” Id. (citing Smith v. Am. Ex. Co., 853

F.2d 151, 154-55 (2d Cir. 1988)). See also Chan v. Donahoe, 63

F. Supp. 3d 271, 297 (E.D.N.Y. 2014) (citing Zann Kwan v.

Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013)) (“In order

to successfully rebut an employer’s purported non-discriminatory

reason for the employment action, the plaintiff must establish

pretext.”). “Thus, when the district court considers whether

the evidence can support a verdict of discrimination on a motion

for summary judgment, it ‘must analyze the evidence, along with

the inferences that may be reasonably drawn from it, and decide

if it raises a jury question as to whether the plaintiff was the

victim of discrimination.’” Grady v. Affiliated Cent., Inc.,

130 F.3d 553, 560 (2d Cir. 1997) (citing Fisher v. Vassar

College, 114 F.3d 1332, 1347 (2d Cir. 1997)).

“Claims brought under the NYSHRL are analyzed

identically and the outcome of an employment discrimination

claim made pursuant to the NYSHRL is the same as it is under . .

. Title VII.” Hyek v. Field Support Servs., Inc., 461 F. App'x

59, 60 (2d Cir. 2012) (citing Smith v. Xerox Corp., 196 F.3d

358, 363 n.1 (2d Cir. 1999), overruled on other grounds by

Meacham v. Knolls Atomic Power Lab, 461 F.3d 134, 140-41 (2d

Cir. 2006)) (internal quotation marks omitted).

b. Application

Defendant does not dispute the first two elements of

plaintiff’s prima facie case, namely, that plaintiff is a member

of a protected class, and that, on and after March 1, 2017, the

relevant statutory period for plaintiff’s Title VII claims, or

November 21, 2015 for plaintiff’s NYSHRL and NYCHRL claims,

plaintiff was qualified to hold the position that she held.

(ECF No. 33, Def. Mem. at 7.) Defendant disputes, however, that

plaintiff was subjected to a material adverse employment action,

and that defendant had discriminatory intent. (Id.) For the

reasons set forth below, the court agrees with defendant and

finds that plaintiff has not established that she was subjected

to a material adverse employment action and, accordingly, grants

summary judgment for defendant as to plaintiff’s discrimination

claims.

Continuing Violation Doctrine

Unless plaintiff can establish a continuing violation,

plaintiff’s factual allegations predating March 1, 2017 will be

considered time-barred. “Title VII requires a claimant to file

a charge of discrimination with the EEOC within 180 days of the

alleged unlawful employment action or, if the claimant has

already filed the charge with a state or local equal employment

agency, within 300 days of the alleged discriminatory action.”

Van Zant v. KLM Roya Dutch Airlines, 80 F.3d 708, 712 (2d Cir.

1996); 42 U.S.C. § 2000e-5(e).

This statutory requirement is analogous to a statute

of limitations. Van Zant, 80 F.3d at 712 (citation omitted).

Unless an exception applies, courts in the Second Circuit

consider only events that occurred during the 300-day period

prior to filing of the EEOC complaint. Because plaintiff filed

her EEOC complaint on December 27, 2017, any events prior to

March 1, 2017 are generally deemed time-barred for purposes of

Title VII. Id.; Taylor v. City of N.Y., 207 F. Supp. 3d 292,

300 (S.D.N.Y. 2016) (finding that “[f]or a Title VII claim to be

timely, the alleged discriminatory conduct must have occurred

less than 300 days prior to the filing of the EEOC charge”).

The bulk of plaintiff’s suit relates to events that

occurred before March 1, 2017, and plaintiff asserts that the

court should consider predating events under the “continuing

violation” doctrine. The continuing violation doctrine will

permit a court to consider conduct outside of the 300-day

limitations period, where plaintiff shows evidence of

defendant’s “continuous practice and policy of discrimination,”

such as discriminatory seniority lists or employment tests. Van

Zant, at 713. Discrete incidents of discrimination that are not

the result of a discriminatory policy or practice will not

ordinarily amount to a continuing violation. Cornwell, 23 F.3d

at 703; Rowe v. New York State Dep’t of Tax. & Fin., 786 F.

App’x 302, 304 (2d Cir. 2019) (finding that multiple alleged

failures to promote were “a series of discrete acts of

retaliation and discrimination” that were time-barred). To

amount to a discriminatory policy or practice, there must be

evidence that “specific [] instances of discrimination are

permitted by the employer to continue unremedied for so long as

to amount to a discriminatory policy or practice.” Id.

Here, plaintiff’s assertion that there was a

continuing violation is unavailing. Plaintiff has not shown a

connection between the Hospital’s treatment of her and any

company policy or practice, nor that the Hospital allowed

incidents of discrimination to go unremedied; to the contrary,

the Hospital took prompt action in response to plaintiff’s

complaint. (ECF No. 36-13, Ex. K.) Even if the court were to

consider the Hospital’s conduct that occurred before March 2017,

the court would still conclude that plaintiff has failed to

identify probative, admissible evidence from which a reasonable

factfinder could find in her favor. Anderson, 477 U.S. at 256-

57.

Plaintiff Has Not Shown an Actionable Failure to Promote

Plaintiff asserts that she “was appointed to a less

distinguished title than comparator employees [and suffered]

pecuniary detriment accompanying that failure.” (Opp. Mem. at

9.) Even though plaintiff did not actually plead a failure to

promote claim in her amended complaint, plaintiff attempts to

argue that she suffered “the adverse action of a failure to

promote by receiving a position and salary lower than the one

advocated for.” (Opp. Mem. at 9.) For the reasons set forth

below, the court finds that plaintiff has adduced no facts

substantiating a claim for failure to promote.

From March 1, 2017 until plaintiff’s voluntary

resignation in May 2018, plaintiff held the position of CNM and

earned an annual salary of $120,000 to $123,600.5 Plaintiff’s

failure to promote allegations in the briefs, which were not

included in the amended complaint, concern conduct wholly

outside of the relevant time period, and are not properly

considered. Even if plaintiff had successfully argued that the

court’s consideration of events and evidence outside the

limitations period was warranted, the court would find no

material – or any - adverse employment action here under Title

VII, the NYSHRL or the NYCHRL.

Though plaintiff attempts to cast her unsuccessful job

interview for the CNM position, in April 2015, as an adverse

employment action, plaintiff has not established or explained

5 Plaintiff received a 3% general wage increase in 2017. (56.1 Resp. ¶ 77.)

how she was entitled to be promoted to CNM in April 2015. (JA,

Ex. G, at 176:18-20 (“[CNO Scher] refuse [sic] to give me the

title and the salary that I deserved.”).

In evaluating a discriminatory failure to promote

claim, courts in the Second Circuit evaluate whether the

plaintiff has established a prime facie case that plaintiff (1)

belongs to a protected class; (2) sought or was eligible for

promotion to positions to which the employer was seeking to

promote people; (3) plaintiff was not promoted; and (4) the

employer promoted others less qualified for the position than

plaintiff. Gonzalez v. City of New York, 354 F. Supp. 2d 327,

334 (S.D.N.Y. 2005).

Here, plaintiff has plainly not met her evidentiary

burden. Specifically, plaintiff has not identified any

successful candidates for promotion or hire to the CNM position,

outside of plaintiff’s protected group, who were similarly

situated to plaintiff in all material respects. The undisputed

evidence establishes that all three individuals who were hired

as CNMs in the ED or the ICU, around the time that plaintiff

pursued the CNM position, had years of supervisory experience

prior to being hired by the Hospital into management positions.

(56.1 Resp. ¶ 47.)

First, Robert Pryce, who was hired in 2014 by Ms.

Kanevsky as a CNM in the ICU, had held a nursing management role

for three to four years at another hospital before joining JHMC.

(ECF No. 33-2, Pryce Decl. ¶ 7.) Second, Alicia McCaskie had

also held a nursing management role prior to joining JHMC as a

CNM in the ED. (Id.) Third, Diahann Singh had held “a wealth

of leadership roles, and she had been a . . . nurse leader at

Rikers, which [is] a pretty tough population[.]” (JA, Ex. E,

76:7-16.) Ms. Singh had also been employed previously as a team

lead, as a supervisor, and a director. (Id. at 76:17-20.) In

contrast to Mr. Pryce, Ms. McCaskie, and Ms. Singh, plaintiff

had limited supervisory experience in her role as a staff nurse.

(56.1 Resp. ¶ 36.)

As courts within the Second Circuit have noted,

“[w]ith regard to the positions filled by lateral employees who

formerly held . . . equivalent positions, . . . [t]he employment

experience of those [lateral] candidates forecloses the argument

that they were similarly situated to [plaintiff] ‘in all

material respects.’” Chavis v. Wal-Mart Stores, Inc., 265 F.

Supp. 3d 391, 405 (S.D.N.Y. 2017); Graham, 230 F.3d at 39;

Gonzalez v. City of New York, 354 F. Supp. 2d 327, 335 (S.D.N.Y.

2005) (dismissing failure to promote claims where plaintiffs

could not demonstrate that employees promoted in their place

were less qualified than plaintiffs).

As noted above, plaintiff’s comparators were more

qualified, not less so, than plaintiff. Moreover, plaintiff

altogether fails to address her relative lack of managerial

experience compared with that of the other CNMs, nor does she

cite any evidence in the record that she was qualified, as of

April 2015, to be promoted to CNM. As defendant correctly

notes, plaintiff has cited no legal authority or evidence other

than her own ipse dixit, given the disparity in experience and

qualifications between herself and the other CNMs, that she was

nonetheless qualified and entitled to be promoted to CNM.

(Reply Mem. at 6.) “Mere requests for consideration for

promotion or general expressions of interest over time do not

suffice,” and nor does the fact that plaintiff was a longtime

employee at the Hospital entitle her to the requested promotion

in April 2015. Inguanzo v. Hous. & Servs., Inc., 2014 U.S.

Dist. LEXIS 132197, at *36 (S.D.N.Y. Sept. 19, 2014).

Plaintiff’s failure to promote claim thus fails on its face.

Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d

Cir. 2009).

Plaintiff also asserts that she should have been paid

more than $120,000 when she was promoted to CNM: “[My salary]

should have been more. It should have been . . . whatever they

had owed me, should have been plus, plus the three percent. . .

. [T]hey should have given me all those three percents.” (JA,

Ex. G, at 125:2-12.) As best as the court can discern,

plaintiff apparently asserts that she was “owed” the annual 3%

wage increase from 2015 to 2017, on the theory that she was

entitled to be promoted to CNM in April 2015. As discussed

above, this argument fails on its face because plaintiff was not

entitled to a promotion. Moreover, plaintiff’s starting salary

of $120,000 was commensurate with her experience and the CNM

position.

Specifically, some CNMs were paid “considerably less”

than plaintiff, while others were paid a bit more. (ECF No. 33-

16, Ex. M; JA, Ex. E, 72:20-73:21; 76:3-25.) Specifically, Ms.

Cornet, the Vice President of HR, testified that “[t]here were

other nurse managers who had been [with the Hospital] a long

time as nurse managers and they weren’t making even 116

[thousand].” (JA, Ex. E, 72:20-73:21.) Plaintiff’s starting

salary of $120,000 was exactly what two other nurse managers,

Mr. Pryce and Ms. McCaskie, made. (JA, Ex. G, 119:14-15.)

Plaintiff acknowledged at her deposition that she understood

that the overnight ED nurse manager, Ms. Singh, was compensated

at a slight premium ($125,000) because the it was a less

desirable shift. (JA, Ex. G, 119:3-20 (“Diane [Singh] started

with 125 [thousand], which is okay because you know what, they

paid her because she’s the overnight.”); see also JA, Ex. E,

49:2-17 (“[I]t’s more difficult to attract professional level

staff to work evenings and nights.”).)

For the foregoing reasons, the court finds that

plaintiff has failed to create a triable issue of fact as to the

failure to promote claim under federal, state and local law.

No Evidence That Plaintiff Has Suffered a Material Adverse

Employment Action

“Examples of materially adverse employment actions

include termination of employment, a demotion evidenced by a

decrease in wage or salary, a less distinguished title, a

material loss of benefits, significant diminished material

responsibilities, or other indices unique to a particular

situation.” Hui-Wen Chang v. N.Y.C. Dep’t. of Educ., 2019 U.S.

Dist. LEXIS 167955, at *26 (E.D.N.Y. Sept. 27, 2019) (KAM)

(internal quotations omitted). By contrast, “a promotion to a

more important title with an increase in salary is the exact

opposite of the quintessential adverse employment actions

described by the Second Circuit[.]” Paul v. Postgraduate Ctr.

for Mental Health, 97 F. Supp. 3d 141, 192 (E.D.N.Y. 2015).

Plaintiff has not alleged or adduced admissible

evidence that defendant undertook any materially adverse

employment action against plaintiff during her employment. (See

generally JA, Ex. G, 97:19-20 (alleging that CNO Scher did not

greet plaintiff and failed to publicly show appreciation or

acknowledge plaintiff at meetings); ECF No. 7, Am. Compl. ¶ 27

(alleging that various individuals referred to plaintiff as a

“black Haitian”), ¶ 29 (alleging that an employee spoke to

plaintiff in a “demeaning manner before hanging up the phone on

her”); ¶ 44 (alleging that CNO Scher called plaintiff and

another employee “not approachable” at a work meeting).)

Plaintiff apparently contends that plaintiff was subjected to

adverse action because defendant “constructively discharged

[plaintiff] due to its discriminatory treatment rising to the

level of a material adverse action.” (Opp. Mem. at 8-9.)

The court finds that none of the foregoing or

following purported actions by defendant constitute materially

adverse employment actions. Namely, in addition to the

foregoing, plaintiff asserts the following were also adverse

employment actions: 1) being required to wear scrubs while at

work, and 2) being short-staffed. Plaintiff did not cite to any

legal authority or other support for these assertions, and the

court has not found support for these propositions in the case

law.

First, plaintiff asserts that being required to wear

scrubs at work constituted an adverse employment action. The

court disagrees. Plaintiff alleged in her amended complaint

that Ms. Kanevsky “authorized” plaintiff to wear regular

clothing rather than scrubs “like the other Clinical Nurse

Managers.” (Am. Compl. ¶ 23.) However, CNO Scher allegedly

instructed plaintiff and Ms. Kanevsky to wear scrubs while

working in the ED. When plaintiff asked CNO Scher why she was

required to wear scrubs, CNO Scher allegedly responded, “This is

not a fashion show.” (Id.; ECF No. 36-4, Ex. B, 94:9-97:8.)

As defendant notes, plaintiff does not explain how

being required to wear scrubs at work materially or adversely

affected her employment. (Reply Mem. at 4.) Courts in the

Second Circuit have found that being asked to comply with an

employer’s dress code is generally not considered an adverse

employment action. See, e.g., Brooks v. City of Utica, 275 F.

Supp. 3d 370, 378 (N.D.N.Y. 2017) (being required to wear a hat

and hairnet while on duty is not an adverse employment action).

Even an employer’s threat to discipline or terminate an employee

for her refusal to comply with hygiene and dress code norms does

not constitute an adverse employment action. Id. at 377-78

(collecting cases). At most, JHMC’s requirement that plaintiff

wear scrubs while on duty, as a nurse in the ED, was a “‘minor

inconvenience,’ which does not amount to a materially adverse

employment action.” Givens v. Monroe Cty., 11-CV-6592 (MAT),

2014 WL 4794641, at *5 (W.D.N.Y. Sept. 25, 2014) (granting

summary judgment for defendant where plaintiff was asked to

remove a sweatshirt that was not in compliance with the dress

code).

In addition, plaintiff does not assert that she was

unable to perform her job effectively in scrubs, as opposed to

other attire. (Id.) To the contrary, as Mrs. Cornet testified

at her deposition, the reason that CNO Scher asked plaintiff to

wear scrubs was “because [the ED was] tremendously short

staffed, continue to be short staffed, and [plaintiff] needed to

be ready to jump in the case of a trauma call, and high heel

shoes in a busy ED weren’t going to be able to be responsive.”

(JA, Ex. E, at 62:21-63:7.) Furthermore, Mr. Pryce averred in

his sworn declaration that he observed plaintiff as well as

other CNMs wearing both street clothes and scrubs at work. Mr.

Pryce stated that he “usually” wore scrubs “because it allows

[him] to jump in for patient care when we are short-staffed,

which is often.” (ECF No. 33-2, Pryce Decl. ¶ 14.) Indeed, Ms.

Kanevsky asked plaintiff to perform bedside care, staff nurse

duties, charge nurse duties, push stretchers, triage, and

provide relief when others went on break, in the ED. (56.1

Resp. ¶ 78.) The court also notes that there is no evidence

that plaintiff was singled out with the dress code requirement;

by plaintiff’s own admission, Ms. Kanevsky, Director of Nursing

in the ED, was also required to wear scrubs at work. (JA, Ex.

G, at 94:11-14; Givens, 2014 WL 4794641, at *5 (noting that

plaintiff was not treated differently than another worker with

respect to the dress code).) Plaintiff has not presented

evidence of similarly situated employees who were not required

to wear scrubs. Thus, the court finds that plaintiff’s being

required to wear scrubs does not constitute a materially adverse

employment action.

Second, plaintiff asserts, in conclusory fashion and

without citing legal authority, that being short-staffed was an

adverse employment action. (Opp. Mem. at 10.) Plaintiff

evidently assumes, without a factual basis, that other CNMs who

worked different shifts were more adequately staffed, that this

was a purposeful effort to undermine her, and was thus evidence

of an adverse employment action. The court finds that it was

not.

Plaintiff’s argument that she was uniquely

understaffed is belied by her own testimony, in which she

acknowledged that other CNMs were also understaffed. (JA, Ex.

G, at 154:3-7.) The undisputed evidence confirms that staff

shortages were experienced not only by plaintiff, but by the

entire ED and ICU departments. For example, plaintiff’s husband

testified that he and others in the ICU department complained of

the staff shortage in the ICU. (JA, Ex. D, 60:20-61:9.) Mr.

Pryce further confirmed that he “often” experiences staff

shortages. (Pryce Decl. ¶ 14.) Ms. Kanevsky also testified

that, as Nursing Director, she asked “all managers” if they

could work extra hours. (JA, Ex. A, at 26:13-24.)

In addition, the Hospital’s staff shortage issue was

not a “change” in the conditions of plaintiff’s employment after

March 2017. As Ms. Kanevsky testified, a serious staff shortage

existed at least as far back as 2015, when plaintiff worked as a

CNC. (Id.) Based on the totality of the undisputed evidence

before the court, the court finds that the staff shortage that

plaintiff experienced was neither unique to her nor a materially

adverse employment action.

Plaintiff Has Not Established Constructive Discharge

Plaintiff has not made a prima facie showing of

constructive discharge.6 The Second Circuit has observed that an

“employee is constructively discharged when his employer, rather

than discharging him directly, intentionally creates a work

atmosphere so intolerable that he is forced to quit

involuntarily.” Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d

Cir. 2003). “[T]o state a prima facie case of constructive

discharge, [a plaintiff] must establish that the constructive

discharge ‘occurred in circumstances giving rise to an inference

of discrimination on the basis of [plaintiff’s] membership in [a

protected] class.’” Id. (citation omitted). “Constructive

discharge claims face a demanding standard, even higher than

6 Though plaintiff did not plead constructive discharge as a separate cause of

action in her Amended Com plaint (see generally ECF No. 7, Am. Compl.), both

parties briefed this issue in connection with defendant’s motion for summary

judgment. Plaintiff apparently contends that she was constructively

discharged, “giving rise to the level of a material adverse action,” for

purposes of her discrimination claims. Thus, the court has considered

whether plaintiff has adduced evidence of a prima facie discrimination claim,

under a constructive discharge theory. (Opp. Mem. at 21.)

that required to prevail on a hostile environment claim.”).

Pryor v. Jaffe & Asher, LLP, 992 F. Supp. 2d 252, 262 (S.D.N.Y.

2014). For instance, constructive discharge claims “cannot be

proven merely by evidence that an employee preferred not to

continue working for that employer . . . [or that] the

employee’s conditions were difficult or unpleasant[.]” Edwards

v. Huntington Union Free Sch. Dist., 957 F. Supp. 2d 203, 213

(E.D.N.Y. 2013). Further, constructive discharge claims are

measured by an objective reasonable person standard. Petrosino,

384 F.3d at 230 (2d Cir. 2004).

It is undisputed that, on May 25, 2018, the day that

plaintiff handed in her pre-written resignation letter to JHMC,

plaintiff had not set foot in the Hospital for the previous six

months, nor had any supervisors from JHMC contacted her.7 (56.1

Resp. ¶ 85.) Furthermore, on May 25, 2018, plaintiff did not

meet with or encounter CNO Scher or any other supervisors. (Id.

¶¶ 91-92.) In addition, plaintiff has not pointed to any facts

showing that, during the months leading up to plaintiff’s

medical leave, defendant ratcheted up the purportedly

intolerable working conditions. The undisputed evidence

establishes that plaintiff began working for a different

7 As plaintiff acknowledges, “while [plaintiff] was on medical leave, just

after submission of [her and Ms. Kanevsky’s complaints to Human Resources],

Ms. Perard was unable to experience any further adverse action while she was

not attending work.” (Opp. Mem. at 22.)

employer the week following her resignation, where plaintiff

made a higher salary, $130,000, and again reported to Ms.

Kanevsky, with whom she had a positive working relationship

during their employment by defendant. (Id. ¶¶ 93, 96.)

At most, plaintiff has put forth evidence showing that

she merely preferred not to continue working at JHMC, which is

insufficient to meet the “demanding” standard required to

sustain a constructive discharge claim. Edwards, 957 F. Supp.

2d at 213; Pryor, 992 F. Supp. 2d at 262. There is no evidence

in the record that supports plaintiff’s claim that she was

constructively discharged due to her working conditions having

deteriorated to an objectively intolerable level. Terry v.

Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003).

For the foregoing reasons, the court grants defendant

summary judgment as to plaintiff’s federal and state

discrimination claims, and plaintiff’s NYCHRL retaliation claim.

II. Plaintiff’s Hostile Work Environment Claims under Title

VII and NYSHRL Fail

As noted above, alleged conduct that took place prior

to March 1, 2017 is time-barred under Title VII, and alleged

conduct that occurred before November 21, 2015 is time-barred

under NYSHRL and NYCHRL because plaintiff has not established a

continuing violation. Rowe, 2019 WL 4463567, at *2.

a. Legal Standard

To make out a hostile work environment claim,

plaintiff must establish, based on both an objective and a

subjective standard, “(1) that the workplace was permeated with

discriminatory intimidation that was sufficiently severe or

pervasive to alter the conditions of [his or] her work

environment, and (2) that a specific basis exists for imputing

the conduct that created the hostile environment to the

employer.” Petrosino v. Bell Atl., 384 F.3d 210, 221, 230 (2d

Cir. 2004) (internal quotation marks omitted). Courts reviewing

claims for hostile work environment “consider the totality of

the circumstances, including ‘(1) the frequency of the conduct;

(2) its severity; (3) whether the conduct is physically

threatening or humiliating, or a mere offensive utterance; (4)

whether the conduct unreasonably interfered with plaintiff’s

work; and (5) what psychological harm, if any, resulted.’”

Lumhoo v. Home Depot USA, Inc., 229 F. Supp. 2d 121, 152

(E.D.N.Y. 2002) (citing Richardson v. New York State Dep’t of

Correctional Serv., 180 F.3d 426, 437 (2d Cir. 2002)). The

incidents at issue must be ‘more than episodic; they must be

sufficiently continuous and concerted in order to be deemed

pervasive.’” Bacchus v. New York City Dep't of Educ., 137 F.

Supp. 3d 214, 240 (E.D.N.Y. 2015) (citing Das v. Consolidated

School Dist. of New Britain, 369 F. App’x 186, 190 (2d Cir.

2010)).

Furthermore, the alleged incidents or comments must be

“severe.” See, e.g., Fleurentin v. New York City Health and

Hosps. Corp., 18-CV-5004 (AMD)(RLM), 2020 WL 42841, at *8

(E.D.N.Y. Jan. 3, 2020) (finding that refusing to let employee

play Santa Claus at a holiday event due to employee’s accent was

not severe enough to support a hostile work environment claim).

“In other words, ‘[s]imple teasing, offhand comments, and

isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of

employment.’” Illiano v. Mineola Union Free Sch. Dist., 585 F.

Supp. 2d 341, 350 (E.D.N.Y. 2008) (citing Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998)). “[U]nder the law, an

unpleasant work environment does not amount to a hostile one.”

Mauze v. CBS Corp., 340 F. Supp. 3d 186, 214 (E.D.N.Y. 2018).

b. Application

Though it is undisputed that plaintiff subjectively

viewed her working environment as a hostile one, plaintiff has

cited no legal authority that plaintiff experienced an

objectively hostile work environment. As defendant notes,

plaintiff cites nothing more than mostly undated, discrete acts

that amount to nothing more than minor or perceived slights, or

unpleasant comments. Nor has plaintiff substantiated that the

conduct alleged unreasonably interfered with plaintiff’s work.

Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir.

2015). Taken individually or in the aggregate, none of the

conduct alleged is sufficiently severe or pervasive to give rise

to a hostile work environment claim. Accordingly, the court

grants defendant summary judgment as to plaintiff’s federal and

state hostile work environment claims.

At plaintiff’s deposition, she testified, in

conclusory fashion, that CNO Scher “created a hostile

environment for me along with her crew” and that she has been

“tortured . . . for all these years” because CNO Scher made

plaintiff’s life a “living hell.” (ECF No. 36-4, at 68:12-22;

69:2-6.) Plaintiff recounted that CNO Scher would sometimes

call her into her office, with Robin Blackwell and Sharon

Narducci, in order to “bash” plaintiff. (Id. at 69:7-18.)

Plaintiff also testified that, during the few times CNO Scher

crossed paths with the ED staff, CNO Scher did not greet

plaintiff. (Id. at 97:13-21; 144:17-25.) In addition, on July

13, 2016, CNO Scher conducted a meeting in which she solicited

managers’ opinions and experiences, and allegedly skipped over

plaintiff and Ms. Kanevsky. (ECF No. 36-4, at 99:14-24.)

Plaintiff noted that CNO Scher skipped over Ms. Kanevsky and

plaintiff, without soliciting their opinions regarding a work

matter. In summary, plaintiff testified that she believed CNO

Scher was discriminating against her: “She singled me out.

Whatever I do, she will always find something to target me. She

would call me black Haitian. She would have her crew pick on

me, belittle me as well.” (Id. at 176:12-18.)

The court has considered the totality of the

circumstances, including discrete comments made by employees at

JHMC, and concludes that they were not severe or pervasive, and

did not create a hostile work environment. For example, Ms.

Blackwell allegedly referred to plaintiff as incompetent: “Oh,

she doesn’t know what she is doing. This is not Haiti.” (JA,

Ex. A, at 73:5-11.) Comments regarding a plaintiff’s

incompetence at her job, however, are not necessarily related to

discrimination and are thus not actionable without a nexus to

discriminatory animus. See Golston-Green v. City of New York,

123 N.Y.S.2d 656 (2d Dep’t 2020) (affirming summary judgment for

defendant on NYSHRL hostile work environment claim where boss

referred to plaintiff as a “Sergeant do nothing” and “an empty

suit” and was told she needed to “do [her] job”). Moreover, Ms.

Blackwell was not plaintiff’s supervisor, and there is no

evidence that she had the ability to affect the terms of

plaintiff’s employment.

Plaintiff also alleged that Ms. Blackwell and CNO

Scher referred to plaintiff’s accent and stated that they were

not able to understand her. (JA, Ex. A, 76:3-19.) CNO Scher

referred to plaintiff’s thick accent, and asked Ms. Kanevsky,

plaintiff’s direct supervisor, whether she could understand

plaintiff. (JA, Ex. A, 15:21-24; see also JA, Ex. G, 50:23-25;

51:23.) Plaintiff also testified at her deposition that, during

her 2015 interview with CNO Scher for the CNM position, CNO

Scher spent the bulk of the 30 to 45 minutes repeatedly stating

that plaintiff was black and Haitian and that her accent was

difficult to understand. (JA, Ex. G, 47:19-25 (“[CNO Scher]

would stop me from time to time when I was talking to her,

complaining about my accent. That she’s having difficulty

understanding me.”), 48:20-49:18, 50:23-51:2.)8

Evidence that employees in a supervisory role

referenced plaintiff’s accent and difficulty in understanding

plaintiff is generally insufficient to establish discriminatory

animus. Manko v. Deutsche Bank, 554 F. Supp. 2d 467, 472, 478

n.36 (S.D.N.Y. 2008) (granting defendant summary judgment even

though supervisor “mocked [plaintiff’s] accent by mimicking her

pronunciation of various words and phrases” because “there [was]

no record evidence that her accent was the basis for an adverse

employment action”); Ponniah Das v. Our Lady of Mercy Med. Ctr.,

00-CV-2574 (JSM), 2002 WL 826877, at *10 (S.D.N.Y. Apr. 30,

2002) (“That [the supervisor] said that she could not understand

[plaintiff’s] accent does not support a claim of

discrimination.”), aff’d, 56 F. App’x 12 (2d Cir. 2003) (summary

8 Plaintiff further testified that CNO Scher did “not really” ask plaintiff

about her qualifications and experience for the desired position because she

was “more focused on my race.” (Id. at 50:14-18, 52:12-25, 53:2-14.)

order); Kho v. New York and Presbyterian Hosp., 344 F. Supp. 3d

705, 719-20 (S.D.N.Y. 2018) (granting defendant summary judgment

where criticism regarding plaintiff’s Chinese accent were in the

context of performance reviews and her language skills were

reasonably related to her job performance); Grant v. Cont’l Cas.

Co., No. 13-CV-5675 (AT), 2015 WL 1499724, at *8 (S.D.N.Y. Mar.

30, 2015) (plaintiff failed to show discriminatory motive where

supervisor remarked, “I don’t understand you, you’re not being

clear,” because such remarks were “devoid of direct or even

oblique reference to race or national origin”). Further, there

is no evidence that any employees used racial slurs or epithets

regarding plaintiff. Holt v. Roadway Package Sys., Inc., 506 F.

Supp. 2d 194, 201 (W.D.N.Y. 2007). Plaintiff describes herself

as black and Haitian, which were the only allegedly offensive

terms used in reference to plaintiff. (JA, Ex. A, 70:2-9; JA,

Ex. G, 10:17-25, 16:15-16.)9

9 The stray remarks regarding plaintiff’s accent are insufficient to sustain

plaintiff’s discriminatio n claim. Even if plaintiff’s supervisor’s comments

regarding her accent or in reference to her race and/or national origin

reflected a discriminatory animus, there is no evidence that plaintiff

suffered an adverse employment action to which the comment could have

related; thus, summary judgment is warranted here. See Manko, 554 F. Supp.

2d at 478 n.36 (S.D.N.Y. 2008); Tomizawa v. ADT LLC, 2015 U.S. Dist. LEXIS

133649, at *34 (E.D.N.Y. July 17, 2015) (Bloom, M.J.), adopted at 2015 U.S.

Dist. LEXIS 132182 (E.D.N.Y. Sept. 29, 2015) (Brodie, J.) (“[S]tray remarks,

even by a decisionmaker, without a demonstrated nexus to the adverse action

will not defeat a motion for summary judgment.”); Brown v. AstraZeneca

Pharms., L.P., 2006 U.S. Dist. LEXIS 57377 (E.D.N.Y. 2006) (“Racist comments

may constitute evidence of an intent to discriminate, but only if a

sufficient nexus exists between the comments and the [adverse action].”).

During her deposition, plaintiff added to her account

of her 2015 interview with CNO Scher, that CNO Scher told

plaintiff, point-blank, “I don’t like black people.” (JA, Ex.

G, at 58:13-14.) Plaintiff further testified that Robert Pryce,

a CNM who identifies as black, told her that CNO Scher said she

didn’t like black people or black Haitians. (Id. at 61:2-4.)

Mr. Pryce has disputed the veracity of plaintiff’s testimony

regarding this alleged remark by CNO Scher in his sworn

declaration, which was submitted in connection with the defense

motion for summary judgment.10 In any event, even if CNO Scher’s

alleged inadmissible hearsay statement to Mr. Pryce was made,

the court finds that this disparity between plaintiff’s and Mr.

Pryce’s testimony fails to create a material factual dispute

because the court finds no adverse employment action occurred,

and this alleged comment was not sufficiently severe or

pervasive to sustain plaintiff’s federal or state hostile work

environment claims.

“To prove a hostile work environment claim . . ., a

plaintiff must show that [her] ‘workplace is permeated with

discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the

10 Specifically, Mr. Pryce declared that plaintiff’s allegation regarding a

conversation between them in July 2016, in which Mr. Pryce allegedly told her

that CNO Scher doesn’t like black Haitians never happened, and he “would

never have said such a thing.” (ECF No. 33-2, Pryce Decl. ¶ 13.)

victim's employment and create an abusive working environment.’”

Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015)

(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

Having considered the evidence before the court in the light

most favorable to the non-moving party, and based on the

totality of the circumstances, plaintiff has not demonstrated a

sufficiently hostile and pervasive environment. Accordingly,

defendant is entitled to summary judgment on plaintiff’s federal

and state hostile work environment claims.

III. Plaintiff’s Retaliation Claims under Title VII, NYSHRL

and NYCHRL Fail

Defendant also contends that plaintiff has failed to

establish a prima facie case of retaliation under Title VII,

NYSHRL and NYCHRL because plaintiff cannot show that she engaged

in a protected activity, defendant was aware of the protected

activity, and the existence of a causal connection between

plaintiff’s protected activity and the materially adverse

action. (Def. Mem. at 12.) For the reasons set forth below,

the court agrees with defendant and grants summary judgment for

defendant on plaintiff’s federal and state retaliation claims.

a. Legal Standard

According to the United States Supreme Court, the

federal anti-retaliation statute “seeks to secure that primary

objective [of] preventing an employer from interfering (through

retaliation) with an employee’s efforts to secure or advance

enforcement of [Title VII’s] basic guarantees.” Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). As with

discrimination claims, federal and state retaliation claims are

governed by the McDonnell Douglas framework. Zann Kwan v.

Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013).

To establish a prima facie case of retaliation under

state and federal law, a plaintiff must show (1) participation

in a protected activity; (2) the defendant's knowledge of the

protected activity; (3) an adverse employment action; and (4) a

causal connection between the protected activity and the adverse

employment action. Id. at 844. Once the plaintiff makes a

prima facie showing, the burden shifts to the employer to

articulate a legitimate, non-retaliatory reason for the

employment action. Id. at 845 (citing United States v. Brennan,

650 F.3d 65, 93 (2d Cir. 2011). After a non-retaliatory reason

has been articulated, the presumption of retaliation drops, and

the plaintiff must then demonstrate the non-retaliatory reason

is a mere pretext for retaliation. (Id.)

A plaintiff “alleging retaliation in violation of

Title VII [and NYSHRL] must show that retaliation was a ‘but-

for’ cause of the adverse action, and not simply a ‘substantial’

or ‘motivating’ factor in the employer's decision.” Id. (citing

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360

(2013)). This does not require proof that retaliation was the

only cause for the employer’s action, but that the adverse

action would not have occurred absent the retaliatory motive.

Id. at 846. “A plaintiff may prove that retaliation was a but-

for cause of an adverse employment action by demonstrating

weaknesses, implausibilities, inconsistencies, or contradictions

in the employer's proffered legitimate, nonretaliatory reasons

for its action.” Id.

For retaliation claims a broader range of conduct may

be actionable than for discrimination claims. Unlike the

discrimination provision, the antiretaliation provision of Title

VII is not limited to discriminatory actions that affect the

terms and conditions of employment. Burlington, 548 U.S. at 63.

Courts properly assess “whether the actions of an employer could

dissuade a reasonable worker from making a charge of

discrimination.” Conforti v. Sunbelt Rentals, Inc., 201 F.

Supp. 3d 278, 302 (E.D.N.Y. 2016).

“The temporal proximity of events may give rise to an

inference of retaliation for the purposes of establishing a

prima facie case of retaliation under Title VII, but without

more, such temporal proximity is insufficient to satisfy

appellant's burden to bring forward some evidence of pretext.”

El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.

2010). “[E]mployer actions prohibited by Title VII's anti-

discrimination provision are limited to conduct that affects the

terms and conditions of employment, while under Title VII's

anti-retaliation provision, the challenged action need not

affect the terms and condition of employment in order to

constitute unlawful retaliation.” Siddiqi v. New York City

Health & Hosps. Corp., 572 F. Supp. 2d 353, 372 (S.D.N.Y. 2008)

(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

63-64 (2006)).

“NYCHRL's retaliation provision is broader than Title

VII's[,] protecting plaintiffs who ‘oppos[e] any practice

forbidden under’ the law from conduct ‘reasonably likely to

deter a person engaging in such action.’” Id. at 76 (citing

Mihalik, 715 F.3d at 112). “While the NYCHRL has a less

demanding standard [for retaliation], a ‘plaintiff still must

establish that there was a causal connection between [her]

protected activity and the employer's subsequent action, and

must show that a defendant's legitimate reason for [her]

termination was pretextual or motivated at least in part by an

impermissible motive.’” Hughes v. Twenty-First Century Fox,

Inc., 304 F. Supp. 3d 429, 449 (S.D.N.Y. 2018) (citation

omitted).

b. Application

The court finds that plaintiff’s retaliation claims

founder on element three: plaintiff has failed to adduce

evidence showing any material adverse action by defendant

against plaintiff. Accordingly, the court grants defendant

summary judgment with respect to plaintiff’s federal and state

retaliation claims.

First, it is largely undisputed that plaintiff’s

filing of an EEOC complaint on December 27, 2017 constitutes a

protected activity for purposes of Title VII. Kelly v. Howard

I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14

(2d Cir. 2013) (“so long as the employee has a good faith,

reasonable belief that the underlying challenged actions of the

employer violated the law,” the filing of a complaint qualifies

as protected activity under Title VII). Further, there is no

dispute as to whether plaintiff filed her EEOC complaint in good

faith. The court thus considers plaintiff to have satisfied the

first element of a prima facie retaliation claim.

Plaintiff also asserts that she engaged in two other

protected activities: her delivery of a letter dated July 19,

2016 to defendant’s C-suite, complaining of unfair practices

directed toward the Emergency Department and her title, but not

based on her race or national origin, and her support of Ms.

Kanevsky’s HR complaint. (Pl. Mem. at 19.) The court finds

that defendant does not meaningfully dispute that plaintiff has

engaged in one or more protected activities.11

Based on the totality of the undisputed facts in

evidence, however, plaintiff has not shown that the Hospital

took any adverse action against plaintiff following any

protected activity. To the contrary, approximately four months

after plaintiff complained to HR in July 2016, plaintiff

received her second promotion in less than two years. (ECF No.

33-13, Ex. J; ECF No. 33-16, Ex. M.)

Crucially, as noted above, plaintiff fails to explain

or cite any case law in support of her assertion that

plaintiff’s decision to voluntarily resign from the Hospital

immediately upon her return from medical leave was tantamount to

an adverse action by the Hospital. Additionally, as the court

has earlier found, plaintiff was not constructively discharged

by defendant. Plaintiff’s subjective belief, unsupported by

facts in the record, that “it was not going to be good” for her

if she stayed with the Hospital, does not, as plaintiff

suggests, establish her reasonable concern that plaintiff would

11 As defendant accurately notes, however, plaintiff’s 2016 letter made no

reference to discriminati on she personally experienced, on the basis of any

protected category, and it was not regarded as a racial discrimination

complaint by the Human Resources VP, Ms. Cornet. (ECF No. 36-10.) Ms.

Cornet testified at her deposition that she understood plaintiff’s grievances

to concern CNO Scher’s allegedly poor treatment of the entire ED team, and

plaintiff’s separate request that her title be changed to “manager” instead

of “coordinator.” (ECF No. 33-8, Ex. E, 39:7-40:10.)

be terminated by the Hospital. (JA, Ex. G, 190.) Though

plaintiff alleges that unidentified staff members advised

plaintiff not to stay at the Hospital because “they might kick

you out,” (ECF No. 36-4, Ex. B, at 187:2-16), plaintiff has

cited no case law in support of her apparent assertion that

unsubstantiated rumors of a future adverse action are tantamount

to an adverse action by the Hospital.

For the foregoing reasons, the court finds that

plaintiff has adduced insufficient evidence to raise a triable

issue of fact regarding any retaliation as a result of

plaintiff’s protected activities. Defendant is thus entitled to

summary judgment on plaintiff’s local, state and federal

retaliation claims.

IV. Plaintiff’s Discrimination and Hostile Work Environment

Claims under the NYCHRL

a. Legal Standard

The NYCHRL makes it “unlawful for an employer or an

employee or agent thereof” to discharge an employee based on,

inter alia, the employee's race or national origin. N.Y.C.

Admin. Code § 8–107(1)(a). It is also unlawful to discriminate

against such person in “terms, conditions or privileges of

employment.” Id. Under the NYCHRL, “an employer is strictly

liable for the unlawful harassment of employees by their

supervisors or managers, regardless of whether the harassment

culminates in a tangible employment action.” Dillon v. Ned

Mgmt., Inc., 85 F. Supp. 3d 639, 657, 658 (E.D.N.Y. 2015);

Golston-Green, 123 N.Y.S.2d at 670 (noting that under the

NYCHRL, “a court should award summary judgment dismissing a

cause of action alleging a hostile work environment only if it

can be said, as a matter of law, that the conduct complained of

was ‘truly insubstantial’ and cannot be said to fall within ‘the

broad range of conduct . . . between severe or pervasive on the

one hand and a petty slight or trivial inconvenience on the

other.’”) (internal quotation marks and citation omitted);

Williams v. New York City Housing Auth., 872 N.Y.S.2d 27, 41

(1st Dep’t 2009). Notably, to sustain a discrimination claim

under the NYCHRL, plaintiff need not establish a materially

adverse employment action. Mihalik, 715 F.3d at 114.

“Hostile work environment claims are analyzed under

the same provision of the NYCHRL as discrimination claims.”

Sotomayor v. City of New York, 862 F. Supp. 2d 226, 261

(E.D.N.Y. 2012), aff'd, 713 F.3d 163 (2d Cir. 2013). “Under the

NYCHRL, defendants' discriminatory conduct need not be severe or

pervasive to create an actionable hostile work environment[;]”

rather, the relevant question is “whether there is a triable

issue of fact as to whether the plaintiff has been treated less

well than other employees because of her race [or] national

origin.” Id. (citation and internal quotation marks omitted);

see also Kaur v. New York City Health & Hosps. Corp., 688 F.

Supp. 2d 317, 340 (S.D.N.Y. 2010). Questions of severity and

pervasiveness go to the scope of permissible damages, not to

liability. Kaur, 688 F. Supp. 2d at 340 (citation omitted).

Defendants can avoid liability for a hostile work environment

claim under the NYCHRL by proving that the conduct complained of

“consists of nothing more than what a reasonable victim of

discrimination would consider petty slights and trivial

inconveniences.” Id. (citation and internal quotation marks

omitted); Sotomayor v. City of New York, 862 F. Supp. 2d 226,

261 (E.D.N.Y. 2012), aff'd, 713 F.3d 163 (2d Cir. 2013); Russo

v. New York Presbyterian Hosp., 972 F. Supp. 2d 429, 450

(E.D.N.Y. 2013).

Although the NYCHRL was formerly construed to be

coextensive with its federal and state counterparts, the law was

amended in 2005 and requires an independent analysis. Mihalik

v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d

Cir. 2013). Courts must construe the NYCHRL’s provisions

“broadly in favor of discrimination plaintiffs, to the extent

that such a construction is reasonably possible[.]” Id. (citing

Albunio v. City of New York, 16 N.Y.3d 472, 477-78 (2011)).

“[E]ven if the challenged conduct is not actionable under

federal and state law, federal courts must consider separately

whether it is actionable under the broader New York City

standards.” Id.

Courts should consider the totality of the

circumstances “because the overall context in which the

challenged conduct occurs cannot be ignored.” Id. at 113

(citation and internal quotation marks omitted). The NYCHRL is

not a general civility code, however, and a defendant is not

liable if the plaintiff fails to prove the conduct is caused at

least in part by discriminatory or retaliatory motives. Id.

(citations omitted). Although a court may still dismiss truly

insubstantial cases, even a single comment may be actionable in

the proper context. Id. (citation omitted).

“New York courts seeking to heed the [broad

construction] command have approached discrimination and

retaliation claims under a similar framework. In both

situations, the plaintiff must establish a prima facie case, and

the defendant then has the opportunity to offer legitimate

reasons for its actions.” Ya-Chen Chen v. City Univ. of New

York, 805 F.3d 59, 75–76 (2d Cir. 2015). “If the defendant

satisfies that burden, summary judgment is appropriate if no

reasonable jury could conclude either that the defendant's

‘reasons were pretextual,’ . . . or that the defendant's stated

reasons were not its sole basis for taking action, and that its

conduct was based at least ‘in part on discrimination[.]’” Id.

(citations omitted).

b. Application

Applying the framework of the NYCHRL, the court finds

that plaintiff has created a triable issue of fact as to whether

she was treated less well than other employees, at least in part

for a discriminatory reason. In general, however, the court

finds that evidence of a hostile work environment is scant.

Plaintiff has proffered evidence of a few, discrete

comments from various employees – Ms. Iavino, Ms. Blackwell, and

CNO Scher - accurately stating that plaintiff is black and

Haitian, but not using slurs or referring to plaintiff in a

degrading, racial manner.12 Plaintiff also subjectively took

offense because CNO Scher did not solicit her or Ms. Kanevsky’s

opinions regarding a work issue, at one work meeting. (ECF No.

36-4, at 99:14-24.) Plaintiff states that she felt

“uncomfortable” during a meeting at which comments were made

about another nurse, Poliak, who spoke English as a second

language.13 (Opp. Mem. at 20.) The record also contains

12 It appears that only CNO Scher exercised supervisory authority over

plaintiff, and plaintiff has not shown a specific basis for imputing Ms.

Iavino’s or Ms. Blackwell’s conduct to the employer, or shown whether

defendant was aware of the other employees’ conduct. Petrosino, 384 F.3d at

221, 230.

13 Plaintiff’s brief failed to cite to the record, and the court cannot

discern who made the comment, when, or about whom, and the court is not

obligated to hunt for plaintiff’s evidence. Giannullo, 322 F.3d at 140.

references to disparaging comments allegedly made about another

nurse, “Irina.” Plaintiff has failed to explain or cite legal

support as to why such comments, about other nurses, would be

relevant to establishing plaintiff’s racial hostile work

environment claim under the NYCHRL. (JA, Ex. A, at 85:5-23; see

also Williams, 872 N.Y.S.2d at 41 (1st Dep’t 2009) (finding that

sexual comment made in plaintiff’s presence on one occasion,

which was not directed at her, was trivial and non-actionable).)

With respect to the comments allegedly made about

plaintiff by a few employees, the court finds most of them to be

non-actionable because they amount to nothing more than “petty

slights and trivial inconveniences.” Sotomayor v. City of New

York, 862 F. Supp. 2d 226, 261 (E.D.N.Y. 2012), aff'd, 713 F.3d

163 (2d Cir. 2013).

More troubling, however, are plaintiff’s bare

allegations, which are unsupported elsewhere in the record, that

CNO Scher directly told plaintiff on one occasion that she did

not like black Haitians. Plaintiff apparently stated for the

first time at her deposition that CNO Scher told her during her

2015 interview for the CNM position that she did not like black

Haitians; this salient detail was not included in plaintiff’s HR

complaint, nor in her EEOC complaint. (JA, Ex. G, at 58:9-20.)

Plaintiff has also alleged that she was told by Mr. Pryce that

CNO Scher stated she did not like Haitians, though as noted

above, Mr. Pryce has denied that CNO Scher ever made that

comment. (JA, Ex. G, at 58:13-14, 61:2-4.)14

It is puzzling to the court that CNO Scher would have

promoted plaintiff to CNC, which included a $32,723 salary

raise, on the heels of an interview in which CNO Scher allegedly

told plaintiff that she did not like black Haitians and, by

logical extension, plaintiff. Nevertheless, the court is

mindful that the Second Circuit has found that even a single

comment may be actionable in the proper context. Mihalik, 715

F.3d at 109. Because the court must not weigh the evidence or

make factual determinations as to whether certain events

occurred, the court hereby denies defendant summary judgment as

to plaintiff’s discrimination and hostile work environment

claims under the NYCHRL. Williams, 872 N.Y.S.2d at 39 (“At the

summary judgment stage, judgment should normally be denied to a

defendant if there exist triable issues of fact as to whether

[actionable] conduct occurred.”).

Title 28 U.S.C. § 1367(c) provides that a district

court may decline to exercise supplemental jurisdiction over a

claim where “the district court has dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c); In re

Valencia, 316 F.3d 299, 305 (2d Cir. 2003). Where “all federal-

14 Plaintiff did not witness CNO Scher making this comment to Mr. Pryce.

law claims are eliminated before trial, the balance of factors.

. . judicial economy, convenience, fairness, and comity. . .

will point toward declining to exercise jurisdiction over the

remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill,

484 U.S. 350 n.7 (1988).

Accordingly, the court declines to exercise its

supplemental jurisdiction over plaintiff’s NYCHRL discrimination

and hostile work environment claims, and dismisses those claims

without prejudice pursuant to 28 U.S.C. § 1367(c)(3). Itar-Tass

Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448

(2d Cir. 1998).

CONCLUSION

For the foregoing reasons, the court GRANTS

defendant’s motion for summary judgment with respect to

plaintiff’s discrimination, hostile work environment, and

retaliation claims, under Title VII and the NYSHRL; GRANTS

defendant summary judgment with respect to plaintiff’s

retaliation claim under the NYCHRL; and DENIES defendant summary

judgment with respect to plaintiff’s discrimination and hostile

work environment claims under the NYCHRL.

As noted above, the court dismisses without prejudice

plaintiff’s NYCHRL discrimination and hostile work environment

claims, pursuant to 28 U.S.C. § 1367(c)(3). The Clerk of Court

is respectfully directed to enter judgment against plaintiff and

close the case.

SO ORDERED.

Dated: September 20, 2020

Brooklyn, New York

_________/s/_________________

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York