# Perard v. Jamaica Hospital Medical Center

> District Court, E.D. New York · September 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10304837

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 20, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
PASCALE PERARD,
Plaintiff,
MEMORANDUM AND ORDER
-against- 18-CV-6661 (KAM)(RER)

JAMAICA HOSPITAL MEDICAL CENTER,
Defendant.
--------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304837. Public record. Not legal advice.