Klein v. Brookhaven Health Care Facility

10/11/2023 1  0:26 am

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT

--------------------------------X EASTERN DISTRICT OF NEW YORK

ROBERT KLEIN, LONG ISLAND OFFICE

Plaintiff, MEMORANDUM & ORDER

17-CV-4841 (JS)(ARL)

-against-

BROOKHAVEN HEALTH CARE FACILITY,

and THE MCGUIRE GROUP,

Defendants.

--------------------------------X

APPEARANCES

For Plaintiff: Robert Klein, pro se

535 Brittany Road

P.O. Box 1512

Westcliffe, Colorado 81252

For Defendants: Erin S. Torcello, Esq.

Jessica C. Moller, Esq.

Mary Elizabeth Moran, Esq.

Bond, Schoeneck & King, PLLC

Avant Building

200 Delaware Avenue, Suite 900

Buffalo, New York 14202

SEYBERT, District Judge:

Brookhaven Health Care Facility (“Brookhaven”) and The

McGuire Group (collectively “Defendants”) move pursuant to Federal

Rule of Civil Procedure (“Rule”) 56 for summary judgment (the

“Motion”). (See ECF No. 80.) By Report & Recommendation dated

July 20, 2023 (the “R&R”), Magistrate Judge Arlene R. Lindsay

(“Judge Lindsay”) recommended Defendants’ Motion be granted. (See

R&R, ECF No. 87, at 8-26.) Robert Klein (“Plaintiff”) timely filed

objections to the R&R. (See ECF No. 89.) For the following

reasons, Plaintiff’s objections to the R&R are OVERRULED, and the

R&R is ADOPTED in its entirety.

BACKGROUND

The Court adopts the relevant factual background stated

by Judge Lindsay in her R&R, finding the R&R accurately summarizes

the relevant facts pertinent to this case, which are incorporated

herein.1 (See R&R at 2-7.) Similarly, the Court adopts Judge

Lindsay’s recitation of the relevant procedural history, which is

also incorporated herein. (Id. at 1-2.) See Sali v. Zwanger &

Pesiri Radiology Grp., LLP, No. 19-CV-0275, 2022 WL 819178, at *1

(E.D.N.Y. Mar. 18, 2022) (“Because neither Plaintiff nor

Defendants challenge the Magistrate Judge’s recitation of the

facts, and the Court finds no clear error in that recitation, the

Court incorporates the ‘Factual Background’ and ‘Procedural

Background’ sections of the Magistrate Judge’s Report and

Recommendation into this Order.”) For the readers’ convenience,

the Court reiterates the following.

I. Facts

Plaintiff “was employed in the maintenance department at

Brookhaven from September 2009 through September 2016.” (Id. at

3 (citing Def. R. 56.1 Stmt., ECF No. 80-28, ¶ 47, attached to

1 Judge Lindsay’s summation of the relevant factual background was

derived from the Amended Complaint, the Defendants’ Local Civil

Rule 56.1 Statement and attached exhibits, and Plaintiff’s Rule

56.1 Opposition.

Motion.)) Plaintiff was 58 years old when hired. (Id. (citing

Def. R. 56.1 Stmt. ¶ 46.)) Maintenance employees at Brookhaven

“report directly to the Facility’s Environmental Services

Manager.” (Id. (citing Gaines Decl., ECF No. 80-31, ¶ 11, attached

to Motion.))

On September 5, 2016, Maintenance Supervisor Shaun

Patrick (“Patrick”) received a phone call from Joseph Malia

(“Malia”). (Id. at 4.) “Patrick states that he was informed by

Malia that while he was using the ‘[W]orkspeed [P]hone’ he checked

the internet browsing history on the phone and noticed that

approximately twenty pornographic websites had been visited that

afternoon.”2 (Id. (citing Def. R. 56.1 Stmt. ¶¶ 2-3.)) “According

to Patrick, Malia stated that he was making the report because he

did not visit the sites and did not want to be accused of having

doing so.” (Id. (citing Def. R. 56.1 Stmt. ¶ 5.)) Debbie Gaines

(“Gaines”), “who was responsible for addressing employee conduct

issues,” was informed the next day. (Id. (citing Def. R. 56.1

Stmt. ¶¶ 6-7.)) “Patrick then collected the [W]orkspeed [P]hone

from the maintenance employee on duty at the time, Hugo Rodriguez.”

(Id. at 5 (citing Def. R. 56.1 Stmt. ¶ 8.)) “When Patrick checked

2 As noted by Judge Lindsay, “[t]he workspeed phone is a phone that

is left at Brookhaven and passed from one maintenance employee to

the next over successive shifts.” (R&R at 4 n.4.) Hereafter, the

Court refers to the workspeed phone as the “Workspeed Phone” or

the “Company Phone.”

the browsing history in an attempt to confirm what Malia had

reported he saw that the history had been cleared;” this

information was relayed to Gaines.3 (Id. (citing Def. R. 56.1

Stmt. ¶¶ 9-11.))

Subsequently, Gaines began gathering facts and

interviewing several employees to determine who was responsible

for accessing the prohibited websites on the Workspeed Phone. (Id.

at 5-6.) Ultimately, Gaines concluded Plaintiff was the

responsible party “because the investigation revealed [he] was the

only person, other than Malia, who had access to the [Workspeed]

[P]hone during the afternoon of September 5, 2016.” (Id. at 6

(citing Def. 56.1 Stmt. ¶ 35.)) Gaines determined Malia was not

responsible for visiting the websites because he “was the one who

brought the issue to the attention of management and,” had

specifically stated during interviews “that his reason for doing

so was to avoid being blamed for something he did not do.” (Id.

at 7 (citing Def. R. 56.1 Stmt. ¶ 36.)) Conversely, Gaines

concluded, during his interview, “Plaintiff[] failed to provide an

explanation for how the websites could have appeared on the

[Workspeed] [P]hone if he did not view them and provided no

3 During her investigation, Gaines interviewed Joseph Perugini

(“Perugini”) who admitted he had deleted the browsing history from

the phone after receiving it from Malia. (R&R at 5 ((citing Def.

56.1 Stmt. ¶ 17-18.)) Further, Perugini informed Gaines he “always

clears the browsing history on the phone upon receiving it from

the employee who had worked the previous shift.” (Id.)

indication of who else could have viewed them.” (Id. (citing Def.

R. 56.1 Stmt. ¶ 37.))

“Under Brookhaven policy, any employee found to be

abusing the privilege of telecommunications devices is subject to

disciplinary action up to and including termination from

employment.” (Id. (citing Def. R. 56.1 Stmt. ¶ 38.)) Upon

determining Plaintiff was responsible for accessing the prohibited

websites on the Workspeed Phone, in violation of Brookhaven’s

policy, “Gaines offered Plaintiff the opportunity to

resign[;] . . . [however,] Plaintiff declined” to do so. (Id.

(citing Def. R. 56.1 Stmt. ¶¶ 40-41.)) Consequently,

“Gaines . . . decided to terminate Plaintiff’s employment.” (Id.

(citing Def. R. 56.1 Stmt. ¶ 41.)) “Plaintiff’s termination, and

the reason for it, [were] confirmed by letter from Gaines to

Plaintiff dated September 20, 2016.” (Id. (citing Def. R. 56.1

Stmt. ¶ 43.)) “Gaines, the ultimate decisionmaker with respect to

the termination of Plaintiff’s employment, was 64 years old at the

time she made the decision to terminate Plaintiff’s employment.”

(Id. (citing Def. R. 56.1 Stmt. ¶¶ 44-45.))

II. Procedural History

On November 17, 2022, Defendants filed their Motion.

(See Motion; see also Support Memo, ECF No. 80-30, attached to

Motion.) On February 13, 2023, Plaintiff filed his Opposition to

Defendants’ Motion. (See Opp’n, ECF No. 85.) Defendants filed

their Reply on April 28, 2023. (See Reply, ECF No. 86.) In the

interim, on April 27, 2023, this Court referred Defendants’ Motion

to Judge Lindsay for a report and recommendation. (See Apr. 27,

2023 Elec. Order Referring Mot.) On July 20, 2023, Judge Lindsay

issued her R&R, to which Plaintiff timely filed his objections.

(See Obj., ECF No. 89.) On August 15, 2023, Defendants filed a

response in support of the R&R’s findings and in opposition to

Plaintiff’s Objections. (See Response ECF No. 90.)

III. Judge Lindsay’s R&R

In the R&R, after summarizing the material facts and

procedural history of the action, Judge Lindsay identified the

rules governing summary judgment, together with the special

solicitude rules courts generally extend to pro se litigants

opposing such motions. (See R&R at 8-9.)

A. Age Discrimination and Retaliation Legal Standards

Next, Judge Lindsay stated, “Plaintiff’s claims for

employment discrimination under the ADEA are analyzed ‘under the

burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green[.]’” (Id. at 10 (citing Lively v. WAFRA Inv. Advisory Grp.,

Inc., 6 F.4th 293, 301, 305 (2d Cir. 2021)).) Under this

framework:

(1) a plaintiff must first establish a prima

facie case of discrimination; (2) the burden

then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its

actions; if the employer does so, the

McDonnell Douglas framework and its

presumptions and burden disappear, and, thus,

(3) the burden shifts back to the plaintiff to

show that the employer’s reason is pretextual

and that it masks the employer’s true

discriminatory reason.

(Id. (citing Patterson v. City of Oneida, 375 F.3d 206, 221 (2d

Cir. 2004) (further citation omitted)).) Judge Lindsay further

elucidated:

[t]o establish a prima facie case of age

discrimination . . . the plaintiff must

demonstrate that “(1) he was within the

protected age group . . .; (2) he was

qualified for the position; (3) he experienced

an adverse employment action; and (4) such

action occurred under circumstances giving

rise to an inference of discrimination.”

(Id. at 10-11 (quoting Summit v. Equinox Holdings, Inc., No.

20-CV-4905, 2022 WL 2872273, at *6 (S.D.N.Y. July 21, 2022)).)

Finally, in analyzing Plaintiff’s claim of retaliation under the

ADEA, Judge Lindsay explained, to establish a prima facie case,

Plaintiff must show:

(1) he participated in a protected activity

under the ADEA; (2) participation in the

protected activity was known to the employer;

(3) the employer thereafter subjected him to

a materially adverse employment action; and

(4) there was a causal connection between the

protected activity and the adverse employment

action—i.e., that a retaliatory motive played

a part in the adverse action.

(Id. at 11 (quoting Yagudaev v. Credit Agricole Am. Servs., Inc.,

No. 18-CV-0513, 2020 WL 583929, *13 (S.D.N.Y. Feb. 5, 2020)).)

B. Plaintiff’s Age Discrimination Claim

Defendants conceded Plaintiff had established the first

three elements of a prima facie age discrimination claim. (Id. at

12.) As such, Judge Lindsay focused her analysis on whether

Plaintiff’s termination “occurred under circumstances giving rise

to an inference of discrimination[;]” (id. at 10-11), in this

regard, Judge Lindsay determined it did not. (Id. at 12-16.)

Specifically, Judge Lindsay highlighted Plaintiff’s deposition

testimony indicated “he was not aware of a single age-related

comment from Gaines,” and that “Plaintiff offer[ed] nothing more

than his own subjective belief that discrimination was the basis

for his termination.” (Id. at 13.) Additionally, Judge Lindsay

observed Plaintiff was hired when he was 58 years old and “numerous

courts have concluded that a Plaintiff’s age discrimination claim

is undermined where Plaintiff was already a member of the protected

age class when Defendants hired him.” (Id. at 14 (citing Stanojev

v. Ebasco Servs., Inc., 643 F.2d 914, 921 (2d Cir. 1981)).)

Similarly, Judge Lindsay emphasized Plaintiff had “testified that

Gaines, the individual responsible for Plaintiff’s termination,

was one of the ‘oldest’ in the facility,” and that “[c]ourts

routinely conclude that ‘invidious discrimination is unlikely’

when ‘the person who made the termination decision is in the same

protected class as plaintiff.’” (Id. (quoting Zuffante v.

Elderplan, Inc., No. 02-CV-3250, 2004 WL 744858, at *6 (S.D.N.Y.

March 31, 2004)).) Finally, Judge Lindsay found, “when asked if

he [was] aware of any age-related comments, Plaintiff only pointed

to two instances in which he was asked about his retirement plans.”

(Id. at 15.) Judge Lindsay found “[t]hese isolated comments

regarding Plaintiff’s retirement plans [did] not raise an

inference of discrimination, as ‘discussion of retirement is

common in offices, even between supervisors and employees, and is

typically unrelated to age discrimination.’” (Id. (quoting

Hamilton v. Mount Sinai Hosp., 528 F. Supp. 2d 431, 447 (S.D.N.Y.

2007), aff’d, 331 F. App’x 874 (2d Cir. 2009)).)

C. Defendants’ Non-Discriminatory Reason for Termination

Next, Judge Lindsay assumed arguendo Plaintiff could

establish a prima facie case of age discrimination but,

nevertheless concluded, Defendants had “met their burden to

‘articulate some legitimate, nondiscriminatory reason’ for

[Plaintiff’s] termination.” (Id. at 16 (quoting Weiss v.

Quinnipiac Univ., No. 20-CV-0375, 2021 WL 4193073, at *4 (D. Conn.

Sept. 15, 2021)).) Specifically, the R&R states Plaintiff’s

employment was terminated, “because his superior, Gaines,

reasonably concluded, after an investigation, that Plaintiff

visited [prohibited] websites on a company cell phone during his

shift on September 5, 2016.” (Id. (citing Def. R. 56.1 Stmt.

¶¶ 35-37.)) Judge Lindsay found that, in similar factual

circumstances, “[n]umerous courts have held that an employer may

terminate an employee who violates company policies prohibiting

the use of its computer systems for sending and receiving sexually

explicit materials.” (Id. at 17 (quoting Glenwright v. Xerox

Corp., 832 F. Supp. 2d 268, 275 (W.D.N.Y. 2011) (collecting

cases)).)

Subsequently, the R&R analyzed the issue of pretext

because, under the burden shifting framework of McDonnell Douglas,

“[o]nce Defendants have offered a legitimate, nondiscriminatory

basis for their action, Plaintiff must offer evidence showing that

Defendants’ stated reason is merely pretextual.” (Id.) Judge

Lindsay explained, “[a] plaintiff may demonstrate pretext by

showing ‘weaknesses, implausibilities, inconsistencies, or

contradictions in the employer’s proffered legitimate,

nonretaliatory reasons for its actions.’” (Id. (quoting Carr v.

N.Y.C. Transit Auth., No. 16-CV-9957, 2022 WL 824367, at *9

(S.D.N.Y. Mar. 18, 2022)).) Moreover, the R&R notes, “[t]o show

pretext, ‘a plaintiff must offer evidence that age discrimination

was the “but-for” cause of the challenged actions rather than just

[being] a contributing or motivating factor.’” (Id. at 17-18

(quoting Robles v. Cox & Co., 987 F. Supp. 2d 199, 206-07 (E.D.N.Y.

2013) (cleaned up)).)

Here, Judge Lindsay highlighted Plaintiff’s primary

argument in response to Defendants’ stated non-discriminatory

reason was that the investigation conducted by Defendants was

flawed. (Id. at 19.) However, Judge Lindsay found “without more,

the irregularities identified in the investigation process [were]

insufficient to create material issues of fact because

Plaintiff . . . failed to connect the irregularities to his claim

of age discrimination.” (Id. (citing Bailey v. Nexstar Broad.,

Inc., No. 19-CV-0671, 2021 WL 848787, at *16 (D. Conn. Mar. 6,

2021)).) Likewise, to the extent Plaintiff argued Defendants

“treated younger employees more favorably because they accepted

the word of the younger employees in the course of the

investigation” over his own, Judge Lindsay found “Plaintiff’s

unsupported conclusion” could not “stand in the face of the

conclusion of an internal investigation” that determined Plaintiff

was the person responsible for visiting the prohibited websites.

(Id. at 21.) On the issue of but-for causation, Judge Lindsay

likewise determined, “Plaintiff admitted at his deposition that he

believe[d] his age was only one of multiple reasons for his

discharge,” and, that in such circumstances, “courts routinely

conclude that a plaintiff cannot establish that discrimination was

the ‘but-for’ reason for . . . termination[], as is required to

carry a plaintiff’s ultimate burden.” (Id. at 21-22 (citing Hu v.

UGL Servs. Unicco Operations Co., No. 13-CV-4251, 2014 WL 5042150,

at *7 (S.D.N.Y. Oct. 9, 2014)).)

D. Plaintiff’s Retaliation Claims

In analyzing Plaintiff’s retaliation claim, Judge

Lindsay found “Plaintiff . . . failed to establish a prima facie

case of retaliation under the ADEA because he . . . failed to

demonstrate that he engaged in a protected activity under the

ADEA.” (Id. at 24.) Additionally, the R&R stated, Plaintiff’s

Amended Complaint made the following allegations which formed the

basis of his retaliation claim:

[n]oticeable Complaints were brought forward.

(Substantial and specific danger to the

public’s health and safety brought forward in

good faith and common sense) and against

policy and in violation of law). NOTE: Verbal

complaints (as noted in plaintiffs type

written Complaint (103+- pages) 8 Sep/1 Oct

2016 submitted to the NYSDHR/EEOC Public

safety, health, welfare, danger were unlawful

policy of BHCF that were opposed.

(Id. (quoting Am. Compl., ECF No. 30, at 6.)) Despite these

allegations, the R&R highlighted that Plaintiff testified he never

informed either Patrick or Gaines that he felt he had been

discriminated against because of his age since he “never was until

the termination part.” (Id. (citing Pl.’s Dep. Tr., Ex. A, ECF

No. 80-2, at 223:15-21, attached to Motion.) Similarly, when asked

if it was his testimony that he did not believe he was treated

differently based upon his age until after he was terminated,

Plaintiff testified that this was the case. (Id.)

E. Plaintiff’s NYLL Section 740 Claim4

In concluding Defendants’ Motion should, likewise, be

granted regarding Plaintiff’s NYLL § 740 claim, Judge Lindsay

emphasized:

[t]he Court . . . painstakingly reviewed all

500 pages of Plaintiff’s response to

Defendants’ motion for summary judgment and

the Court [was] unable to identify any

complaint from Plaintiff regarding any law,

rule or regulation which violation create[d]

and present[ed] a substantial and specific

danger to the public health or safety.

(Id. at 26.) Likewise, “[w]hen specifically asked at his

deposition whether he could identify any law, rule, or regulation

that the conduct he complained about violated, Plaintiff

repeatedly testified that he could not do so.” (Id.)

DISCUSSION

I. Legal Standard

The Court adopts the “Legal Standard” pertaining to

summary judgment stated by Judge Lindsay in her R&R, (see id. at

8), finding the R&R accurately summarized the relevant law. The

Court adds the following legal principles applicable to its

analysis of Plaintiff’s objections to the R&R.

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

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

4 NYLL refers to the New York Labor Law.

judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

The district judge must evaluate proper objections de novo;

however, where a party “makes only conclusory or general

objections, or simply reiterates [the] original arguments, the

Court reviews the Report and Recommendation only for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)

(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1

(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3). The Court need

not review the findings and conclusions to which no proper

objection has been made. Thomas v. Arn, 474 U.S. 140, 150 (1985).

II. Analysis

Turning to Plaintiff’s objections, the Court finds them

to be general and “mere reiterations of the arguments in [the]

original papers that were fully considered, and rejected, by” the

Magistrate Judge. Out of the Blue Wholesale, LLC v. Pac. Am. Fish

Co., Inc., No. 19-CV-0254, 2020 WL 7488072, at *2 (E.D.N.Y. Dec.

21, 2020) (quoting Rizzi v. Hilton Domestic Operating Co., Inc.,

No. 19-CV-1127, 2020 WL 6243713, at *2 (E.D.N.Y. Oct. 23, 2020)

(collecting cases)); see also (Obj. at 4 (requesting “this Court

read the Plaintiff[’]s Memorandum of Law in Opposition- Doc 85;

Plaintiff[’]s Objection Response to Def[.’s] Material Fact

Statement Document 85-14 and all [of] the plaintiff’s exhibits

that [were] filed along with it.”) Thus, the Court reviews Judge

Lindsay’s analysis for clear error only.5

Plaintiff does not articulate specific objections to the

R&R but instead objects to every finding, on every page, of it.

(See Obj., in toto.) Despite Plaintiff’s myriad objections, they

can largely be summarized as an attack on Defendants’

investigation. Plaintiff reargues his assertions: that the

investigation’s findings were flawed; that he was not responsible

for accessing the prohibited websites; and there were other

employees who could have accessed the Workspeed Phone. However,

as highlighted by Judge Lindsay, “the fact that an employee

disagrees with the results of an employer’s decision regarding

termination, or even has evidence that the decision was objectively

incorrect or was based on a faulty investigation, does not

automatically demonstrate, by itself, that the employer’s

proffered reasons are a pretext for termination.” Rodriguez v.

City of N.Y., 644 F. Supp. 2d 168, 187 (E.D.N.Y. 2008); see also

Leiner v. Fresenius Kabi USA, LLC, No. 14-CV-979S, 2019 WL 5683003,

at *8 (W.D.N.Y. Nov. 1, 2019) (finding, while plaintiff “may

disagree that his conduct amounted to falsification of documents,

this does not create an issue as to the veracity of [defendant’s]

5 Even if the Court were to engage in a de novo review of

Plaintiff’s objections, for the reasons discussed herein, the

result would be the same.

reasons for terminating his employment,” what matters is that

defendant “relied on the results of its investigation--flawed or

not--as the basis to terminate [plaintiff’s] employment, and there

[was] no evidence to the contrary”); Kolesnikow v. Hudson Valley

Hosp. Ctr., 622 F. Supp. 2d 98, 112 (S.D.N.Y. 2009) (finding “in

the absence of evidence that Defendants acted in bad faith, failed

to follow their ordinary disciplinary procedures or treated other

employees differently . . . complaints about the adequacy of

[defendants’] investigation, even if accepted as true, cannot show

pretext or defeat a summary judgment motion.”)

Indeed, as a sister court explained in rejecting a

plaintiff-employee’s pretext argument based upon a challenge to

the employer’s investigation, Title VII “does not provide remedies

against poorly thought-out or unwise employment actions, but only

against . . . discriminatory employment actions.” Jordan v. Olsten

Corp., 111 F. Supp. 2d 227, 236 (W.D.N.Y. 2000). Thus, because

“Title VII prohibits discrimination, [and] not poor judgment,” it

does not protect a plaintiff against “a shoddy investigation” which

leads to “a poorly informed decision to fire” the plaintiff. Id.

(“[I]t is irrelevant whether [the employer] did a sub-standard job

of investigating and reaching a decision.”) (cleaned

up). Instead, the plaintiff “must produce evidence that it was

[the employer’s] discriminatory animus that motivated [it] to

investigate the allegations and then make [its] decision to fire

[the plaintiff].” Id.

Here, Plaintiff offers no evidence to establish

Defendants’ investigation was launched as a pretextual means of

terminating his employment due to age discrimination.6 In fact,

the record evidence establishes the investigation was prompted by

Defendants’ discovery that an employee had used the Company Phone

to access prohibited websites. (See Def. R. 56.1 Stmt. ¶¶ 2-12;

Pl.’s Dep. Tr., at 186:12-25; 190:10-17.) Ultimately, absent

evidence that the investigation was pretextual, whether Plaintiff

was innocent of the conduct alleged is irrelevant in analyzing his

Title VII claims. See Brown v. Soc’y for Seaman’s Children, 194

F. Supp. 2d 182, 191 (E.D.N.Y. 2002) (“[A]lthough plaintiff felt

she had been treated unfairly, . . . [t]here simply is no basis in

6 To the extent Plaintiff argues his exonerated co-workers were

younger than him and, as such, Defendants’ decision to believe

their version of events over Plaintiff’s own, evinces age

discrimination, such an argument is conclusory and unsupported by

any evidence in the record. On the contrary, Gaines provided

several non-discriminatory reasons supporting the findings of her

investigation, to wit: (1) Malia had reported the prohibited

websites on the Company Phone’s browser history and when asked why

he had done so responded he had reported it because he did not

want to be blamed for it (Def. R. 56.1 Stmt. ¶¶ 25-26); (2) the

Company Phone was in Plaintiff’s custody during the time period in

which the prohibited websites were accessed (id. ¶ 27);

(3) notwithstanding Plaintiff’s argument he left the Phone in the

maintenance room unattended, the maintenance shop was a secure

location (id. 30-31); and (4) Plaintiff provided no explanation

for how the websites could have appeared in the phone’s browsing

history if he did not view them (id. ¶ 33.)

the record from which a rational juror could find that the reasons

given for plaintiff’s termination . . . were false or a pretext

for discrimination.”); see also Jordan, 111 F. Supp. 2d at 236.

Similarly, and as the R&R makes clear, “[w]hile [the

court] must ensure that employers do not act in a discriminatory

fashion, [it] do[es] ‘not sit as a super-personnel department that

reexamines an entity’s business decisions.’” Delaney v. Bank of

Am. Corp., 766 F.3d 163, 169 (2d Cir. 2014) (quoting Scaria v.

Rubin, 117 F.3d 652, 655 (2d Cir. 1997))). Consequently,

Plaintiff’s argument that Defendants’ telecommunications policy

was inconsistently applied (see, e.g., Obj. at 6, 8, 11), does not

serve to create an issue of material fact. Defendants’

disciplinary policy states, in pertinent part, “[a]ny employee

found to be abusing the privilege of any telecommunication

[devices]” risks “having the privilege revoked not only for

themselves, but also for other employees they may have involved.

In addition, disciplinary actions may be warranted up to and

including immediate termination.” (Brookhaven Policy, Ex. B, ECF

No. 80-33, at 3, attached to Motion (emphasis added).) Defendants’

decision not to terminate Malia for accessing the Company Phone’s

browsing history, or Perguini for subsequently clearing the

browsing history is not inconsistent with the telecommunications

policy, which leaves it to Defendants to determine the appropriate

punishment for whatever telecommunication violations arise. The

policy simply puts employees on notice that such punishment may

include, but does not mandate, termination.7 See Glenwright, 832

F. Supp. 2d at 278 (“[T]he existence of [defendant’s] ethics

policies is not negated by claims that other employees disregarded

or misunderstood them.”).

To the extent not explicitly addressed, the Court has

considered the remainder of Plaintiff’s discernable arguments and

finds them to be without merit. Finding no error -- clear or

otherwise -- in Judge Lindsay’s R&R, Plaintiff’s objections are

OVERRULED in their entirety.

7 The Court also rejects Plaintiff’s argument that Malia and

Perguini were his comparators such that their difference in

treatment during the investigation raises an inference of age

discrimination (see Obj. at 6, 8, 11.) See Spiess v. Xerox Corp.,

No. 08-CV-6211, 2011 WL 2973625, at *6 (W.D.N.Y. July 21, 2011)

(finding, where plaintiff alleged “he received less favorable

treatment than other employees guilty of the same policy

violations. . . . [p]laintiff must show that the situation between

him and his comparators was so similar that it supports an

inference that the difference in treatment can be attributable to

discrimination”). The policy violations Malia and Perguini

admitted to during the investigation, accessing browsing history

and deleting browsing history, respectively, were considerably

less egregious than the violation which Plaintiff was ultimately

found to have committed, accessing prohibited websites. This alone

provides an explanation for the differentiation in treatment

between Plaintiff, Malia, and Perguini. Cf. id. at *9 (finding no

sex discrimination where male plaintiff was terminated for

violation of defendant’s code of conduct but female employee, who

“was found to have engaged in less egregious conduct[,]” was not).

CONCLUSION

Accordingly, having overruled Plaintiff’s objections,

the R&R (ECF No. 87) is ADOPTED in its entirety, and Defendants’

Summary Judgment Motion (ECF No. 80) is GRANTED. The Clerk of the

Court is directed to enter judgment accordingly and mark this case

CLOSED.

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1915(a)(3), any appeal from this Order would not be taken in

good faith and therefore in forma pauperis status is DENIED for

the purpose of any appeal. See Coppedge v. United States, 369

U.S. 438, 444-45 (1962); and

IT IS FURTHER ORDERED that the Clerk of the Court shall

mail a copy of this Memorandum & Order to the pro se Plaintiff and

make a notation of such service on the docket.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: October 11, 2023

Central Islip, New York