Tringone v. New York State Office of Mental Health

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANGELA TRINGONE,

Plaintiff, MEMORANDUM & ORDER

18-CV-1896(EK)(ARL)

-against-

NEW YORK STATE OFFICE OF MENTAL

HEALTH and ROSALIE BANOVICH,

Defendants.

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ERIC KOMITEE, United States District Judge:

Angela Tringone was employed by the New York State

Office of Mental Health (“NYSOMH”) as a social worker beginning

in 2013, providing psychological counseling to clients. She

resigned her position with NYSOMH in February 2017.

Plaintiff claims that she was subject to a hostile

work environment at NYSOMH beginning in the second half of 2016.

This allegation is based primarily on the behavior of certain

registered nurses on NYSOMH’s staff. Plaintiff also alleges

that when she complained about her work environment, NYSOMH

employees retaliated by subjecting her to increased scrutiny, a

write-up for “fabricated performance issues,” and a transfer to

a distant facility, among other things. NYSOMH denies that

Plaintiff was subject to a hostile work environment and contends

that Plaintiff’s performance issues were real, longstanding, and

rigorously documented. In that vein, NYSOMH points to a steady

stream of record evidence regarding the Plaintiff’s difficulties

with supervisors and colleagues, much of which predates the

Plaintiff’s allegations.

Plaintiff sued NYSOMH, alleging discrimination and

retaliation under Title VII. She also sued a supervisor, Deputy

Director Rosalie Banovich, for the same claims under the New

York State Human Rights Law. NYSOMH and Banovich both now move

for summary judgment. For the reasons stated below, I conclude

that Plaintiff has failed to adduce sufficient evidence that she

was subjected to a hostile work environment or, in connection

with her retaliation claims, that she was subjected to any

materially adverse action. Accordingly, I grant summary

judgment on all claims.

Background1

A. Factual Background2

NYSOMH hired Plaintiff in May 2013 as a Licensed

Master Social Worker (Level II). NYSOMH 56.1 ¶ 10. Plaintiff’s

position entailed, among other things, working on a team that

provided training and support to people with mental illnesses to

assist them with independent living. See id. ¶ 8. She began

working out of the “Yaphank Center” of NYSOMH’s Pilgrim

Psychiatric facility in Medford, New York. ECF No. 67-1 ¶ 3

(Declaration of Rosalie Banovich).

1. Probationary Period

At the start of her employment, Plaintiff was subject

to a probationary period that was initially set to last between

twenty-six and fifty-two weeks. NYSOMH 56.1 ¶ 11. On May 29,

2014, just as that period was about to expire, NYSOMH extended

it by 115 workdays to cover time that Plaintiff had taken “off

1 These facts are drawn from the parties’ submissions on summary

judgment, including their Local Rule 56.1 Statements. Defendant Banovich’s

Rule 56.1 Statement is referred to as “Banovich 56.1” (ECF No. 67-2);

NYSOMH’s Rule 56.1 Statement as “NYSOMH 56.1” (ECF No. 68-7); Plaintiff’s

statements in opposition as “Pl. 56.1 (Banovich)” (ECF No. 69-25) and “Pl.

56.1 (NYSOMH)” (ECF No. 69-26), respectively. The facts are viewed in the

light most favorable to Plaintiff. Citations to a party’s Rule 56.1

Statement incorporate by reference the documents cited therein. For

convenience, Defendants’ supporting memoranda of law will be referred to as

“Banovich. Br.” (ECF No. 67-3) and “NYOSMH Br.” (ECF No. 68-8) and

Plaintiff’s opposition as “Pl. Opp.” (ECF No. 69-27).

2 This section proceeds chronologically, beginning with the record

evidence relating to Plaintiff’s performance issues and then proceeding to

the evidence underlying her hostile work environment allegations and later

allegations of performance deficits.

duty.” Id. ¶ 12. As extended, the probationary period was set

to terminate on November 7, 2014. ECF No. 68-4 at 2 (letter

dated May 29, 2014).3

Shortly before the extended period expired, NYSOMH

rated Plaintiff’s attendance record “unacceptable” based on her

absences and punctuality issues. ECF No. 68-4 at 4 (Probation

Report dated October 24, 2014). As a consequence, NYSOMH

required Plaintiff to complete a second probationary period.

See ECF No. 68-4 at 6 (letter dated November 7, 2014).

Plaintiff contends that many of her absences were due to a

“high-risk” pregnancy. See Deposition Excerpts of Angela

Tringone (“Pl. Dep.”) 103:2-4, ECF No. 69-1. But her counsel

conceded that at least some of Plaintiff’s absences were

unauthorized and that some were unrelated to the pregnancy.4

2. Negative Feedback and First Transfer

Plaintiff ultimately completed the probationary

period, but she continued to receive negative feedback. On July

3 Page numbers in citations to record documents refer to ECF pagination.

4 See Transcript of Oral Argument held on October 12, 2021 18:4-7, ECF

No. 79 (“[The Court]: I’m not asking about whether [each absence] was related

to her condition so much as whether she had authorization for it. You’re not

citing record evidence that she did, right? A: Aside from the sick leave

letter . . . there is nothing in the record that demonstrates that she was

authorized for every single absence.”); see also id. at 18:8-11 (“Q. And

you’re not arguing that she was authorized for every single absence? A. I

don’t believe every single absence.”). The Court went on to ask whether the

record contained evidence that Plaintiff had, at times, not shown up at work

for no reason at all. Plaintiff’s counsel replied: “Sprinkles of it, yes.”

Id. at 18:18-22.

14, 2015, clinic administrator John Mahon counseled Plaintiff

about her recordkeeping. NYSOMH 56.1 ¶ 15. Mahon’s

contemporaneous notes reflect that they discussed “significant

documentation deficits,” including one instance in which

Plaintiff failed to complete a “biopsychosocial” report for a

client in treatment for more than five months, despite the

report having been due within thirty days of the client’s

admission. See ECF No. 69-11. Mahon also noted that several of

Plaintiff’s “treatment plans” lacked the required client

signatures, prescriber signatures, or monthly progress notes.

Id. Mahon requested that Plaintiff’s “supervision frequency” be

adjusted to “weekly.” Id. Plaintiff admits that she was

counseled for poor record documentation but denies that she had

significant documentation deficits. Pl. 56.1 (NYSOMH) ¶ 15.

Two weeks later, Mahon counseled Plaintiff regarding

her time and attendance record for 2015. NYSOMH 56.1 ¶ 16; see

also ECF No. 69-12. Mahon noted that Plaintiff’s timesheets

indicated a total of sixteen unscheduled “call in sick” days in

2015 (which was barely half over at that time), as well as

several days in which Plaintiff arrived late. ECF No. 69-12.

Plaintiff admits these allegations. Pl. 56.1 (NYSOMH) ¶ 16.

In April 2016, Plaintiff was transferred to the

Suffolk Mobile Integration Team (“MIT”) with the same title and

salary. NYSOMH 56.1 ¶ 17. (This is not the transfer about

which Plaintiff complains.) The MIT was based out of NYSOMH’s

Yaphank Center, where Plaintiff had already been working, but

her appointment to the MIT required Plaintiff to travel more.

See ECF No. 79 10:9-16; see also ECF No. 68-5 at 30 (Draft

Investigation Report).

On the MIT, Plaintiff reported to Team Leader Martin

Godek; Godek, in turn, reported to defendant Banovich. NYSOMH

56.1 ¶ 4; Banovich 56.1 ¶ 23. Godek was later interviewed for

the Investigation Report that NYSOMH compiled after Plaintiff

complained about her working environment. The report reflects

Godek’s observations, made sometime after Plaintiff joined his

team, that Plaintiff was not following through on obligations

like scheduled meetings with clients, was not responsive to

supervisors’ communications, and had documented a “low number”

of patient visits. ECF No. 68-5 at 10-11.

3. Hostile Work Environment Allegations and Additional

Counseling

Plaintiff points to three incidents in particular in

support of her hostile work environment claim. All three

occurred during the Fall of 2016.

The first incident allegedly occurred on September 27,

2016. Plaintiff was in a room with several NYSOMH employees,

including a nurse named Jamie Iacobelli.5 NYSOMH 56.1 ¶ 18.

According to Plaintiff, Iacobelli attempted to show her a video

of a “woman’s rear end with cereal in it” on her cellphone. Pl.

Dep. 58:19-23. Plaintiff refused Iacobelli’s invitation to

press play on the video, but testified that she was exposed to

the still image for “three or four seconds.” Id. at 59:19-21;

see also NYSOMH 56.1 ¶ 19. Plaintiff testified that she told

Iacobelli to “Get it out of my face. I don’t want to see that.”

Pl. Dep. 59:25-60:2. After that, Plaintiff testified, “it was

just dropped. I didn’t want to talk about it.” Id. at 60:6-7.

This incident left Plaintiff feeling “nauseous,” but she chose

not to report it at that time. Id. at 61:11-12.6

The second incident of alleged harassment occurred

on October 7, 2016. Plaintiff heard from a colleague (first

name McReynold)7 that another coworker (Tom) had told

Iacobelli that men sent him photographs of their penises on

5 Iacobelli was one of the employees who, according to Godek, had

reported that Plaintiff was not “working well” with the Mobile Integration

Team and was frequently unable to keep her patient meetings. ECF No. 68-5

at 11. Plaintiff named Iacobelli in her complaint but dismissed her on

December 19, 2019. ECF No. 62. This opinion refers to Iacobelli (sometimes

spelled Iacabelli in the record) by her full name because she was originally

a named party.

6 Plaintiff apparently did report this episode on October 18, 2016,

after the second and third episodes occurred. ECF No. 68-5 at 23.

7 This opinion uses only the first names of employees who are the

subject of lurid allegations but no formal claim (unlike Iacobelli, who was

initially named as a defendant).

his Craigslist account. NYSOMH 56.1 ¶ 22. Plaintiff told

McReynold that this was “gross.” Pl. Dep. 72:17. Following

the incident, Plaintiff felt “sick” because she had to work

with a “bunch of perverts.” Id. at 75:2-4. Plaintiff

testified that she told McReynold not to repeat his behavior,

and he agreed. Id. at 74:4-13.

On October 11, 2016, Plaintiff reported the

Craigslist conversation to Brooke Gottesman, a clinical

supervisor. ECF No. 69-18. A few days later, Plaintiff

formally complained to a social work “director” who, in turn,

reported this incident to NYSOMH’s Diversity Planning office.

NYSOMH 56.1 ¶ 25.

On October 14, 2016, Team Leader Godek and defendant

Banovich (Godek’s supervisor) discussed Plaintiff’s performance

again. In an email, Banovich reported that she met with

Plaintiff about Plaintiff’s having reported only “2 services”

between September 1 and October 3. ECF No. 69-15. Godek

replied that Plaintiff had “a tendency of wandering too much

around the clinic in Suffolk.” Id. Both supervisors raised

the idea of another transfer, should Plaintiff fail to show

improvement. Id. Godek wrote that he could “keep a better

eye on her” at the contemplated facility, “and the team there

I don’t think would tolerate her behavior.” Id.

The third instance of alleged harassment occurred on

October 17, 2016, when Plaintiff was in earshot of a

conversation between Iacobelli and a coworker whose first

name is Regina. Iacobelli told Regina that a friend of

Iacobelli’s had seen a picture of Regina and said she looked

“hot” and had “nice t*ts and a**.” NYSOMH 56.1 ¶ 26.

Iacobelli denies making that comment.8 Plaintiff reported

this incident to NYSOMH’s Office of Diversity Planning and

Compliance days later. ECF No. 69-18.

On October 17, 2016 — the day of the conversation

about Regina — Banovich contacted Suzanne Streng (a human

resources specialist) regarding Plaintiff’s performance issues.

ECF No. 68-5 at 22. Banovich reported that Plaintiff had been

exhibiting “irresponsible behavior,” including by running out of

gas during workday travel; failing to respond to supervisors’

communications; and having difficulties getting along with her

team. Id.9 Banovich inquired about the possibility of

8 Interviewed later, Iacobelli stated that she told Regina that her

friend had “complimented her,” saying that “she was a beautiful older lady.”

ECF No. 68-5 at 24. Regina told investigators that Iacobelli “may” also have

quoted her friend as saying that Regina had “nice boobs.” Id. at 14. Regina

further stated that she and Iacobelli had been “trying to lose weight” and

that she took Iacobelli to be paying her a compliment. Id. at 14-15.

9 These facts are contested. I recite them because they are relevant to

Plaintiff’s contention that the Defendants “fabricated” her performance

issues, and because they precede the transfer about which Plaintiff

complains.

reassigning Plaintiff to another facility where she could

receive “closer supervision.” Id.

On October 19, Plaintiff filed a complaint alleging

that Iacobelli sexually harassed her. NYSOMH 56.1 ¶ 29. NYSOMH

initiated an investigation in response. Id. ¶ 30. NYSOMH

personnel interviewed twelve witnesses (including Iacobelli),

reviewed documents, and compiled the Draft Investigation Report

discussed above. Id.; see generally ECF No. 68-5.

The investigation determined that there was

insufficient evidence to support the claim that Iacobelli

described Regina as having nice “t*ts and a**.” ECF No. 68-5

at 45. Iacobelli did admit, however, to “engaging in speech of

a sexual nature in the workplace by describing out loud the text

received from her phone.” Id. Iacobelli was placed on

probation, id. at 30; but the investigators found insufficient

evidence to support Tringone’s claims that Tom “engaged in

speech of a sexual nature,” or that Godek, Banovich, or

Gottesman had retaliated against her. Id. at 45-46.

In January 2017, Godek counseled Plaintiff about her

disruptive behavior during meetings and training sessions, ECF

No. 69-10 (report of “counseling outcome”), and issued Plaintiff

a written counseling memorandum. ECF No. 69-9; see also NYSOMH

56.1 ¶ 38. The memorandum states that a copy of it would be

filed in Plaintiff’s “personal history folder in the Human

Resources Department.” ECF No. 69-9. The memo details several

incidents occurring between October 2016 and December 2016. Id.

Among other things, Godek reported, Plaintiff left a morning

meeting “abruptly[,] claiming a need to go to pick up a letter

for a client” without ascertaining that it was acceptable to

depart. Id. In a meeting held to address “ongoing issues”

within the MIT, Godek observed that Plaintiff “stared at the

ceiling . . . rolled [her] eyes and began doing paperwork as Ms.

Banovich was talking.” Id. Plaintiff denies that she was

disruptive in at least one meeting memorialized in the memo,

instead contending that she “did not act differently than she

normally acts during meetings, i.e. keeping her head down and

shuffling paper.” Pl. 56.1 (NYSOMH) ¶ 38.

On January 26, 2017, Gottesman verbally counseled

Plaintiff to complete her notes and contact sheets in a timely

fashion. NYSOMH 56.1 ¶ 39.

NYSOMH’s Investigation Report reflects that on

February 14, 2017, Plaintiff’s attorney sent a letter to NYSOMH

attaching Plaintiff’s Charge of Discrimination form. ECF No.

68-5 at 3. The next day, Plaintiff filed her complaint with the

Equal Employment Opportunity Commission (“EEOC”). ECF 69-13 at

2.

On February 27, 2017, Godek advised Plaintiff that she

would be transferred from the Yaphank MIT to NYSOMH’s Buckman

Center in Brentwood, New York. NYSOMH 56.1 ¶ 41; see also ECF

No. 69-3 (Transfer Letter dated February 27, 2017).10

Plaintiff’s salary, benefits, title, and hours remained the

same. NYSOMH 56.1 ¶ 42; ECF No. 69-3. Later that day,

Plaintiff resigned her position. In her handwritten resignation

letter, she asserted that she had been “constructively

discharge[d]” in retaliation for making the EEOC complaint. ECF

No. 69-5.

Throughout the period of Plaintiff’s employment, she

and other NYSOMH employees received sexual harassment training

annually. This training included specific procedures for

reporting sexual harassment. See NYSOMH 56.1 ¶ 37; see also Pl.

Dep. 29:3-30:3.

B. Procedural History

As noted above, Plaintiff filed a discrimination

complaint with the EEOC on February 15, 2017. The EEOC later

issued a right-to-sue letter. Plaintiff commenced this action

in March 2018, alleging violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000, and the New York State

10 The investigation report indicates that this transfer occurred after

consultation with NYSOMH’s Human Resources department, Counsel’s Office, and

Bureau of Diversity Planning and Compliance. ECF No. 68-5 at 46.

Human Rights Law (“NYSHRL”), Executive Law §§ 290-301. See

Complaint (“Compl.”), ECF No. 1.11

Defendants now move for summary judgment. NYSOMH

argues that the alleged harassment was insufficiently “severe or

pervasive” to establish a hostile work environment, and

that Plaintiff suffered no “adverse employment action” and

cannot (in any event) show a causal connection between her

complaints and any purportedly adverse action NYSOMH took.

NYSOMH Br. at 2-3. Banovich asserts that she is not an

“employer” within the meaning of the NYSHRL and that she did not

retaliate against Plaintiff. See Banovich Br. at 2-3.

Summary Judgment Standard

Summary judgment is appropriate if the record

demonstrates that “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed R. Civ. P. 56. “A fact is material for these

purposes if it might affect the outcome of the suit under the

governing law. An issue of fact is genuine if the evidence is

such that a reasonable jury could return a verdict for the

11 Plaintiff’s complaint also named Godek and Iacobelli as defendants.

The complaint did not clearly specify which claims were alleged against which

defendant(s). Plaintiff later dismissed all claims against Godek and

Iacobelli. ECF Nos. 62 (Iacobelli), 63 (Godek). Following oral argument,

Plaintiff submitted a letter at the Court’s request clarifying the causes of

action against each remaining defendant. ECF No. 76.

nonmoving party.” Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263

F.3d 208, 212 (2d Cir. 2001).12

The moving party has the burden of demonstrating the

absence of a question of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant carries

its burden, “the nonmoving party must come forward with

admissible evidence sufficient to raise a genuine issue of fact

for trial in order to avoid summary judgment.” Jaramillo v.

Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). If the non-

moving party fails to do so, the claim must be dismissed. The

entry of summary judgment is appropriate “against a party who

fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986).

Discussion

Plaintiff asserts that her colleagues’ actions gave

rise to a hostile work environment, and that when she complained

about these actions, Defendants retaliated against her. The

standards under Title VII and the NYSHRL are the same for both

the hostile work environment and retaliation claims. See Summa

v. Hofstra Univ., 708 F.3d 115, 123-24 (2d Cir. 2013) (hostile

12 Unless otherwise noted, when quoting judicial decisions this order

omits all alterations, citations, footnotes, and internal quotation marks.

work environment); Hicks v. Baines, 593 F.3d 159, 164 (2d Cir.

2010) (retaliation).

A. Hostile Work Environment

To prevail on a hostile work environment claim, a

plaintiff must show that the alleged harassment was

“sufficiently severe or pervasive to alter the conditions of the

victim’s employment.” Perry v. Ethan Allen, Inc., 115 F.3d 143,

149 (2d Cir. 1997). Under Title VII, “isolated incidents

(unless extremely serious) will not amount to” a hostile work

environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998). Multiple events in series, taken together, “must be

more than episodic; they must be sufficiently continuous and

concerted in order to be deemed pervasive.” Alfano v. Costello,

294 F.3d 365, 374 (2d Cir. 2002). “Title VII is not a general

civility code.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62,

75 (2d Cir. 2001). Moreover, “it is axiomatic that in order to

establish a sex-based hostile work environment . . . a plaintiff

must demonstrate that the conduct occurred because of her sex.”

Alfano, 294 F.3d at 374.

The three incidents Plaintiff invokes over her nearly

four-year tenure at NYSOMH do not meet this standard. See

DelaPaz v. N.Y. City Police Dep’t, No. 01-CV-5416, 2003 WL

21878780, at *3 (S.D.N.Y. Aug. 8, 2003) (Second Circuit has

erected a “remarkably high” hurdle with respect to the level and

frequency of offensive conduct required to sustain a hostile

work environment claim). The first incident — involving the

cellphone image of a “woman’s rear end with cereal in it,” Pl.

Dep. 58:19-20 — was fleeting; Plaintiff testified that Iacobelli

held her phone up for “a few seconds . . . three or four

seconds.” Id. at 59:15-21. Indeed, neither Iacobelli nor

Plaintiff actually pressed play. See NYSOMH 56.1 ¶ 19.

Plaintiff testified that “I pushed her hand away,” Pl. Dep.

59:17-18, and said “[g]et it out of my face.” Id. at 59:25.

Plaintiff paraphrased Iacobelli’s response as follows: “Oh,

come on. It’s not so bad, blah blah blah, you know, ha-ha-ha.”

Id. at 60:4-6. This ended the interaction: “And then it was

just dropped. I didn’t want to talk about it.” Id. at 60:6-7.

Plaintiff did not alert management contemporaneously to this

incident.

In general, incidents must be more than “fleeting” to

sustain a hostile work environment claim, Postell v. Rochester

City Sch. Dist., 136 F. Supp. 3d 492, 502 (W.D.N.Y. 2015),

including where explicit imagery is involved. See Alfano, 294

F.3d at 380. Given that, district courts in this Circuit have

repeatedly granted summary judgment in cases involving incidents

similar to the one alleged here. E.g., Dotson v. City of

Syracuse, No. 4–CV–1388, 2009 WL 2176127, at *15 (N.D.N.Y. July

21, 2009) (“The record establishes that plaintiff saw

pornography at the SPD on two occasions over a five to six month

period . . . . [N]o reasonable factfinder could conclude that

these two events were severe or pervasive to constitute a

hostile work environment.”); Osorio v. Source Enter., Inc., No.

5-CV-10029, 2006 WL 2548425, at *5 (S.D.N.Y. 2006) (evidence

that plaintiff was exposed to “some lewd pictures posted in a

back portion of the office and on a computer screen saver,”

together with an “isolated incident in which she saw male

employees watching pornography in the mailroom,” was

insufficient to survive summary judgment).

The second incident involved a chain of communication

with several links. Plaintiff says she heard from a colleague

(McReynold) that McReynold heard from Iacobelli that Iacobelli,

in turn, heard from a staff psychologist named Tom that he (Tom)

“had men on Craigslist send him pictures of their penises.” Pl.

Dep. 72:8-12. This is obviously inappropriate workplace

conversation. But McReynold’s mention of this communication was

(again) fleeting, and was accompanied by no display of the

photos in question (at least in Plaintiff’s presence). Evidence

that “colleagues discuss[ed] topics that were inappropriate and

sexual in nature” is insufficient without more to sustain a

hostile work environment claim. E.g., Byrne v. Telesector Res.

Grp., Inc., 339 F. App’x 13, 18 (2d Cir. 2009) (plaintiff’s

allegations that male co-worker gave out his fax number as

“25penis,” that she overheard co-workers discussing topics that

were sexual in nature, and that manager invited former employee

who had been accused of discrimination to office party, were not

severe or pervasive enough to give rise to a hostile work

environment).

In the third incident, Iacobelli — the common factor

in this series of allegations, as will be obvious by now — was

talking to her coworker Regina with Plaintiff present.

Plaintiff alleges that Iacobelli told Regina that she had shown

Regina’s picture to a friend, and the friend responded that

Regina looked “hot” and had “nice t*ts and a**.” Pl. Dep.

94:22-95:1. As with the Craigslist episode, Plaintiff is

invoking a single comment that was not directed at her.

The Second Circuit has held that comments like this,

even when directed at a plaintiff herself, may not suffice to

establish liability. In Quinn v. Green Tree Credit Corp., a

coworker “told Quinn she had been voted the ‘sleekest a**’ in

the office and . . . on another occasion, he ‘deliberately

touched Quinn’s breasts with some papers that he was holding in

his hand.’” 159 F.3d 759, 768 (2d Cir. 1998), abrogated in part

on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101 (2002). Accepting these allegations as true, the Court

of Appeals still concluded that Quinn had “not adduced evidence

sufficient to support a finding that she was subjected to abuse

of sufficient severity or pervasiveness as to alter the

conditions of her employment.” Id.

Here, as noted, Plaintiff was a bystander to the

conversation about Regina’s photograph. And courts have

suggested that comments directed at a third party, while still

relevant, are less supportive of a plaintiff’s hostile work

environment claim. See, e.g., Mohan v. City of New York, No.

17-CV-3820, 2018 WL 3711821, at *15 (S.D.N.Y. Aug. 3, 2018)

(“[E]ven assuming Kim’s single reference to another employee

. . . bespoke racial animus, the [complaint] suggests that

Plaintiff only knew of this information secondhand, and this

comment was not directed at her.”); Kolenovic v. ABM Janitorial

Ne. Inc., No. 8-CV-67, 2009 WL 161064, at *2 (S.D.N.Y. Jan. 8,

2009), aff’d in part, vacated in part, remanded sub nom.

Kolenovic v. ABM Indus. Inc., 361 F. App’x 246 (2d Cir. 2010)

(“Nagrowski’s boorish comments regarding a co-worker’s anatomy,

his remark that a co-worker’s thong underwear was exposed, and

the lewd statement concerning a cleaning woman were not directed

at Plaintiff, and Plaintiff can point to no adverse effect on

her job performance as a result of those comments.”).13

13 At the same time, “a plaintiff who herself experiences discriminatory

harassment need not be the target of other instances of hostility in order

for those incidents to support her claim.” Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000); see also Perry, 115 F.3d

at 149, 151.

Moreover, Plaintiff’s deposition testimony undermines

her reliance on this episode in support of her claim. She did

testify that Iacobelli’s comment to Regina made her

uncomfortable. As is apparent from the deposition testimony

below, however, Plaintiff’s primary reaction appears to have

been her desire to disparage her colleague, rather than her

discomfort.

Q. How did you feel regarding the October 17, 2016

incident?

A. Surprised.

Q. Why were you surprised?

A. Because Regina does not have nice t*ts and a**.

Q. Did it offend you that somebody made a comment

that somebody thought that somebody had nice T

and A?

A. Yes. Especially when it’s untrue.

Pl. Dep. 95:24-96:9; see Williams v. New York City Hous. Auth.,

61 A.D.3d 62, 80 (1st Dep’t 2009) (“[T]he only harassment

allegation supported by evidence that could be credited by a

jury consists of comments made in plaintiff’s presence on one

occasion in October 1998 that were not directed at her, and were

perceived by her as being in part complimentary to a coworker.

These comments were . . . not actionable.”).

Taken together, these incidents do not rise to the

level of a hostile work environment. In evaluating hostile work

environment claims, courts consider the “totality of the

circumstances,” Pucino v. Verizon Wireless Commc’ns, Inc., 618

F.3d 112, 117 (2d Cir. 2010), including “the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work

performance.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 23

(1993).

In Alfano, the Second Circuit held that the plaintiff

had introduced insufficient evidence to sustain a jury verdict

on her hostile work environment claim. 294 F.3d at 382. At

trial, the plaintiff had introduced evidence that a supervisor

told her she should not eat certain foods because she did so in

a “seductive” manner; that someone had left a carrot and two

potatoes in her mailbox, “arrang[ed] . . . to suggest male

genitalia”; and that someone left a cartoon in her work mailbox

containing vulgar sexual remarks, together with a reference to a

colleague that the plaintiff had been investigated (and cleared)

for having had an allegedly inappropriate workplace relationship

with. Id. at 370. The panel ruled that these incidents, “taken

together, are insufficient as a matter of law to meet the

threshold of severity or pervasiveness required for a hostile

work environment.” Id. at 376.

Given the Second Circuit’s guidance, Plaintiff’s claim

cannot go forward. See Mormol v. Costco Wholesale Corp., 364

F.3d 54, 59 (2d Cir. 2004); Cristofaro v. Lake Shore Cent. Sch.

Dist., 473 F. App’x 28, 30 (2d Cir. 2012). Defendants’ motions

for summary judgment on Plaintiff’s hostile work environment

claims — federal and state — are therefore granted.

B. Retaliation

As noted above, Plaintiff reported these episodes to

NYSOMH personnel (though the parties dispute whether she did so

through the appropriate channels under NYSOMH’s sexual

harassment policies). Plaintiff claims that the hospital

retaliated in several ways: by increasing supervision over her;

by forcing her to “hash it out” herself with people she had

accused of harassment; by Banovich “screaming” at Plaintiff in a

hallway after a meeting, pointing a finger in her face in the

process; by “writing plaintiff up” for “fabricated” performance

issues and ordering verbal counseling; and by transferring

Plaintiff to another facility. See Compl. ¶¶ 76-145.

The federal and state retaliation claims “are reviewed

under the burden-shifting approach” of McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 794 (1973). Zann Kwan v. Andalex Grp.

LLC, 737 F.3d 834, 843 (2d Cir. 2013). Under the first step of

that framework, the plaintiff must establish a prima facie case

that her employer took “adverse action” against her as a result

of “protected” activity. Cifra v. G.E. Co., 252 F.3d 205, 216

(2d Cir. 2001).

Once the plaintiff establishes a prima facie case, the

burden shifts to the defendant to articulate a legitimate, non-

retaliatory reason for its employment decision. Id. If the

defendant carries this burden, the plaintiff must then come

forward with evidence that the defendant’s proffered reason is a

“mere pretext for retaliation.” Zann Kwan, 737 F.3d at 845.

“Although intermediate evidentiary burdens shift back and forth

under [the McDonnell Douglas] framework, [t]he ultimate burden

of persuading the trier of fact . . . remains at all times with

the plaintiff.” Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 143 (2000).

Defendants contend that Plaintiff cannot make out a

prima facie case because no factfinder could conclude, on this

record, that she formed a “reasonable belief” that her rights

had been violated. NYSOMH Br. at 9. They cite Clark County

School District v. Breeden, 532 U.S. 268 (2001), which held that

a plaintiff had not engaged in protected activity when “no one

could reasonably believe” that the incident she complained of,

involving one sexually suggestive comment by a coworker,

violated Title VII. Id. at 270-71. That case is perhaps

distinguishable in that it involved only a single incident,

whereas Plaintiff here is alleging three. I need not resolve

this question, however, because Plaintiff has failed to allege

that she was subject to any “materially adverse” retaliatory

action.

Title VII’s “antiretaliation provision protects an

individual not from all retaliation, but from retaliation that

produces an injury or harm.” Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 67 (2006). To be actionable, the

asserted acts of retaliation must be “materially adverse” to the

complaining employee. Id. at 68. This means that the

challenged actions were “harmful to the point that they could

well dissuade a reasonable worker from making or supporting a

charge of discrimination.” Id. at 57. Alleged acts of

retaliation must be considered both separately and in the

aggregate. Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010).

Still, no number of non-actionable incidents, even in the

aggregate, can amount to an adverse employment action: “Zero

plus zero is zero.” Tepperwien v. Entergy Nuclear Operations,

Inc., 663 F.3d 556, 572 (2d Cir. 2011). The standard is

objective. Hicks, 593 F.3d at 165. At bottom, the “petty

slights or minor annoyances that often take place at work and

that all employees experience do not constitute actionable

retaliation.” Id.

1. “Increased Scrutiny” and Feedback

Several of Plaintiff’s allegations in this regard can

be summarily dismissed. Increased monitoring and supervision

are not materially adverse as a matter of law; they are,

instead, inherent in employee training and “necessary to allow

employees to develop, improve and avoid discipline.”

Tepperwien, 663 F.3d at 570. Such scrutiny does not constitute

materially adverse action absent “other negative results such as

a decrease in pay or being placed on probation.” Dauer v.

Verizon Commc’ns Inc., 613 F. Supp. 2d 446, 461 (S.D.N.Y. 2009),

vacated on other grounds and remanded sub nom. Pucino v. Verizon

Wireless Commc’ns, Inc., 618 F.3d 112 (2d Cir. 2010); see also

Workneh v. Pall Corp., 897 F. Supp. 2d 121, 135 (E.D.N.Y. 2012)

(granting summary judgment to defendants on retaliation claim;

series of meetings held to “scrutinize [plaintiff’s] job

performance, and even his daily schedule,” along with “increased

scrutiny” of plaintiff’s corporate credit card charges, were

insufficient as a matter of law to establish materially adverse

action); Gentile v. Potter, 509 F. Supp. 2d 221, 242 (E.D.N.Y.

2007) (“[R]eprimands, threats of disciplinary action, and

excessive scrutiny do not constitute adverse employment

actions.”).

Likewise, yelling is not a materially adverse action.

See Ziyan Shi v. New York Dep’t of State, Div. of Licensing

Servs., 393 F. Supp. 3d 329, 338-39 (S.D.N.Y. 2019) (collecting

cases); Martinez v. New York City Dep’t of Educ., No. 04-CV-

2728, 2008 WL 2220638, at *12 (S.D.N.Y. May 27, 2008)

(“[I]ncidents where Sulner publicly yelled at Plaintiff . . .

constitute, as a matter of law, the sorts of petty slights and

personality conflicts that are not actionable.”).

Nor does counseling qualify. See Tepperwien, 663 F.3d

at 570-71 (employee counseling not actionable where it was not

part of a progressive disciplinary process); Witkowich v. U.S.

Marshals Serv., 424 F. App’x 20, 22 (2d Cir. 2011) (supervisors’

reprimands and criticisms would not have dissuaded a reasonable

employee in the plaintiff’s position from complaining of

unlawful discrimination). Providing accurate feedback is, of

course, part of the ordinary and appropriate course of personnel

management, and here there is substantial evidence — at least

some of which is undisputed — reflecting Plaintiff’s significant

performance challenges.

2. Counseling Memorandum

Beyond the counseling and increased supervision,

Plaintiff claims that she was “written up” on the basis of

“fabricated” performance issues. She points to Godek’s

memorandum of January 10, 2017. See Pl. Br. at 13; ECF No. 69-9

(counseling memo).14 In the memo, Godek described three

14 As set forth above, Plaintiff had received negative feedback on a

number of occasions prior to the incidents alleged to constitute a hostile

work environment, and prior to her engaging in any protected reporting

incidents: one in which Plaintiff left the morning meeting

“abruptly,” claiming that she needed to go pick up a letter for

a client; another morning meeting in which Banovich addressed

“ongoing issues” on the team and Plaintiff “stared at the

ceiling, grimaced, rolled [her] eyes and began doing paperwork”

while Banovich spoke; and a training session in which Plaintiff

whispered and laughed inappropriately with a colleague. ECF No.

69-9. The memo states that Godek and Banovich had spoken to

Plaintiff contemporaneously about the first two incidents, with

“no improvement”; Godek concluded by saying that if Plaintiff

did not make “immediate and sustained improvement,” he would be

“compelled to recommend further administrative action.” Id.

The memo called for Plaintiff to sign to “acknowledge receipt”

and indicated that a copy would be filed in her “personal

history folder” with the Human Resources Department. Id. The

signature block bears the handwritten notation “refused to

sign,” dated January 12, 2017. Id.

Generally speaking, negative evaluations in a

counseling memo are not “adverse employment actions” absent some

accompanying adverse consequences. Tepperwien, 663 F.3d at 570

(“[W]e have held, in the context of the issuance of a counseling

activity. For obvious reasons, the negative feedback that predates any

instance of protected activity cannot constitute retaliation. See Brodt v.

City of New York, 4 F. Supp. 3d 562, 572 (S.D.N.Y. 2014) (adverse actions

predating protected activity cannot form basis of a retaliation claim);

Miller v. McHugh, 814 F. Supp. 2d 299, 319 (S.D.N.Y. 2011) (same).

memo, that criticism of an employee (which is part of training

and necessary to allow employees to develop, improve and avoid

discipline) is not an adverse employment action.”). The Second

Circuit has affirmed the grant of summary judgment against

plaintiffs who alleged as much of this type of retaliation as

Tringone does, or more. See Cody v. Cty. of Nassau, 345 F.

App’x 717, 719 (2d Cir. 2009) (alleged retaliatory actions —

including falsely accusing Plaintiff of unauthorized absence,

issuing a counseling notice, threatening “future counseling

notices and disciplinary actions,” “writing her up” for leaving

early, and “placing her on a medical review list” — were “not

adverse employment actions for purposes of a retaliation

claim”); see also Quadir v. New York State Dep’t of Lab., 691 F.

App’x 674, 675 (2d Cir. 2017); Verdi v. City of New York, 306 F.

Supp. 3d 532, 544 (S.D.N.Y. 2018) (“Counseling memoranda do not

constitute adverse employment actions in retaliation claims

under Title VII.”); Ziyan Shi, 393 F. Supp. 3d at 338 (“Even if

the information in the counseling memoranda was false or

misleading, this does not constitute an adverse employment

action.”).15

15 Some district courts have suggested that negative performance

evaluations can, in certain circumstances, constitute adverse action. E.g.,

Wilson v. New York & Presbyterian Hosp., No. 17-CV-5012, 2021 WL 2987134, at

*6 (E.D.N.Y. July 15, 2021) (indicating in dicta that “a negative performance

evaluation can constitute an adverse employment action in the retaliation

Here, the record reflects that Plaintiff received only

a single negative evaluation in writing after engaging in the

protected activity at issue. Under Burlington and the cases

cited above, this is insufficient as a matter of law.

Moreover, Plaintiff has adduced no evidence tending to

prove that the negative feedback was inaccurate, beyond her own

assertion. That assertion is insufficient, without more, as a

matter of law. “At the summary judgment stage, plaintiff must

provide more than his subjective belief that he was the subject

of retaliation.” Pelletier v. Armstrong, No. 99-CV-1559, 2007

WL 685181, at *13 (D. Conn. Mar. 2, 2007); see also Mattera v.

JPMorgan Chase Corp., 740 F. Supp. 2d 561, 576–77 (S.D.N.Y.

2010) (dismissing retaliation claim based on negative

performance evaluation where plaintiff “fail[ed] to identify any

evidence that refutes defendants’ characterization of his

performance”).16

context”); Dingle v. City of New York, No. 10–CV–4, 2011 WL 2682110, at *6

(S.D.N.Y. July 7, 2011) (observing, in the First Amendment context, that “a

counseling memorandum, as a formal, written reprimand, sufficiently deters

the exercise of constitutional rights to constitute an adverse employment

action.”). The significant weight of authority, however, is to the contrary,

especially as applied to the facts here.

16 Plaintiff’s extensive record of performance issues tends to undermine

this basis for her retaliation claim. See, e.g., Vitale v. Equinox Holdings,

Inc., No. 17-CV-1810, 2019 WL 2024504, at *13 (S.D.N.Y. May 7, 2019) (“An

employee who has been repeatedly reprimanded and who sees the writing on the

wall cannot shield herself from legitimate managerial prerogatives by

threatening a discrimination complaint and then alleging unlawful

retaliation.”).

3. Involuntary Transfer

Finally, Plaintiff leans heavily on the involuntary

transfer in her effort to establish an adverse employment

action. She contends, without offering any specifics, that the

transfer was akin to an “entry-level position.” Pl. Dep.

151:9.17 Whether a transfer constitutes an adverse employment

action depends on a “wide variety of factors, including whether

the reassignment or transfer led to a diminution in

responsibilities, prestige, or opportunity for advancement.”

Ragin v. E. Ramapo Cent. Sch. Dist., No. 05-CV-6496, 2010 WL

1326779, at *22 (S.D.N.Y. Mar. 31, 2010), aff’d, 417 F. App’x 81

(2d Cir. 2011). A lateral transfer is not, generally speaking,

adverse action, even if the transferee objects to it. See

Dillon v. Morano, 497 F.3d 247, 255 (2d Cir. 2007) (plaintiff’s

“personal opinion” that his new assignment placed him in the

”least desirable unit” within organization insufficient to

establish adverse action); Morris v. Lindau, 196 F.3d 102, 113

(2d Cir. 1999); Ragin, 2010 WL 1326779 at *23 (no adverse action

where plaintiff “had the same job title, pay and benefits”

following transfer); Alers v. N.Y.C. Human Res. Admin., No. 06-

CV-6131, 2008 WL 4415246, at *7 (E.D.N.Y. Sep. 24, 2008), aff’d

sub nom. Alers v. Hum. Res. Admin., 357 F. App’x 330 (2d Cir.

17 In her deposition, Plaintiff admitted that the transfer was, in fact,

lateral. See id. at 147:18-148:14; see also Pl. 56.1 (NYSOMH) ¶ 42.

2009) (plaintiff’s “dissatisfaction with her duties” after

transfer, without more, was not a sufficient basis to find that

an employment action was adverse).

Nor does a transfer to a less convenient location

amount to an adverse action. “[C]ourts in this Circuit have

generally declined to find that transfers (or denials of

transfers) amount to adverse employment actions, even in the

context of a retaliation claim, where the action results merely

in an inconvenience, such as an increased commute or unfavorable

hours.” Taylor v. N.Y.C. Dep’t of Educ., No. 11-CV-3582, 2012

WL 5989874 at *10 (E.D.N.Y. Nov. 30, 2012) (collecting cases);

Ray v. New York State Ins. Fund, No. 16-CV-2895, 2018 WL

3475467, at *11 (S.D.N.Y. July 18, 2018) (same).

Plaintiff argues that the Court must consider the full

impact of this transfer on her life as a whole — not just the

increase in travel time.18 For this proposition, she invokes

Vega v. Hempstead Union Free School District, 801 F.3d 72 (2d

Cir. 2015). Vega held that a plaintiff’s allegation of a

temporary deprivation of pay, among other things, sufficed to

allege an adverse employment action when the totality of

plaintiff’s life circumstances were taken into account. Id. at

18 Plaintiff also argues that her job duties following the proposed

transfer would have been diminished, but she cites no facts to support this

claim. See, e.g., Pl. Dep. 152:8-25.

92. The court noted that “[t]he real social impact of workplace

behavior often depends on a constellation of surrounding

circumstances, expectations, and relationships which are not

fully captured by a simple recitation of the words used or the

physical acts performed.” Id. at 90. Thus, the court observed

that a “schedule change in an employee’s work schedule may make

little difference to many workers, but may matter enormously to

a young mother with school-age children.” Id.

Invoking Vega, Tringone contends that the Defendants

knew that she would have difficulty getting her children to day

care on time if she was commuting to the new location in

Brentwood. Pl. Dep. 151:5-16. Though discovery has closed,

Plaintiff points to no actual evidence that the Defendants knew

this or were motivated by it beyond (again) her own surmise.

Even assuming such knowledge, however, Plaintiff has failed to

demonstrate the commuting difficulties she claims.

Plaintiff produced a printout from Google Maps, dated

January 7, 2020, estimating that the drive from her children’s

day care facility to her new work location was twenty-four miles

and would take anywhere from thirty-five to eighty-five minutes.

ECF No. 69-24.19 Plaintiff admitted, however, that the day care

19 Courts may take judicial notice of internet mapping tools to

ascertain driving distances. See, e.g., Rindfleisch v. Gentiva Health Sys.,

Inc., 752 F. Supp. 2d 246, 259 n.13 (E.D.N.Y. 2010).

facility was three miles from her home and that it opened at

6:30 a.m. Pl. 56.1 (NYSOMH) ¶¶ 49-50. Thus, even assuming the

correctness of Google’s estimated travel time, Plaintiff would

still have been able to get to the new work location before 8:00

a.m., see Pl. Dep. 153:14-15 (for 8:00 a.m. start time), with

between five and fifty-five minutes to spare. ECF No. 69-24.

Plaintiff’s transfer thus does not constitute an adverse

employment action.

In sum, Plaintiff does not “describe a situation, even

when viewed in the aggregate, that would deter a reasonable

employee from engaging in protected activities.” Chiang v.

Donahoe, 579 F. App’x 39, 42 (2d Cir. 2014).

Conclusion

For the foregoing reasons, the Defendants’ motions for

summary judgment are both granted. The Clerk of Court is

respectfully directed to enter judgment and close this case.

SO ORDERED.

_/s/ Eric Komitee___________

ERIC KOMITEE

United States District Judge

Dated: November 15, 2021

Brooklyn, New York