Czerwinski v. New York State Department of Corrections and Community Supervision

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________________

MICHELE CZERWINSKI,

Plaintiff,

-against- 6:18-CV-0635

NEW YORK STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY

SUPERVISION,

Defendant.

________________________________________

THOMAS J. McAVOY,

Senior United States District Judge

DECISION and ORDER

I. INTRODUCTION

Following Defendant the New York State Department of Corrections and

Community Supervision’s (“Defendant” or “DOCCS”) Fed. R. Civ. P. 12(b)(6) motion, the

Court dismissed all of Plaintiff Michele Czerwinski’s (“Plaintiff”) causes of action except the

employment retaliation claim brought under Title VII of the Civil Rights Act of 1964 (“Title

VII”). Dkt. 16. Defendant now moves for summary judgment on this claim. Dkt. 38.

Plaintiff opposes the motion, Dkt. 39, and Defendant filed a reply. Dkt. 40. The motion is

now ripe for disposition.

II. STANDARDS OF REVIEW

a. Summary Judgement

On a motion for summary judgment the Court must construe the properly disputed

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facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct.

1769, 1776 (2007), and may grant summary judgment only where “there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see O'Hara v. National Union Fire Ins. Co. of Pittsburgh, PA, 642

F.3d 110, 116 (2d Cir. 2011).

b. Title VII Retaliation

Title VII retaliation claims are evaluated using the burden-shifting analytical

framework of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hicks v.

Baines, 593 F.3d 159, 164 (2d Cir. 2010). “First, the plaintiff must establish a prima facie

case of retaliation by showing: ‘(1) participation in a protected activity; (2) that the

defendant knew of the protected activity; (3) an adverse employment action; and (4) a

causal connection between the protected activity and the adverse employment action." Id.

(interior quotation marks and citations omitted). “The plaintiff's burden in this regard is de

minimis, and the court's role in evaluating a summary judgment request is to determine

only whether proffered admissible evidence would be sufficient to permit a rational finder

of fact to infer a retaliatory motive.” Id. (interior quotation marks and citations omitted).

“Actions are ‘materially adverse’ if they are ‘harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of discrimination.’” Id.

at 165 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). “An

action that ‘well might have dissuaded a reasonable worker from making or supporting a

charge of discrimination,’ Burlington, 548 U.S. at 68], is ‘an objective standard,’ and it does

not matter that ‘in this particular instance Plaintiff[ ] [was] not dissuaded from filing

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complaints after the allegedly retaliatory acts.’” Dedjoe v. McCarthy, No. 1:15-CV-1170

(LEK/CFH), 2017 WL 4326516, at *14 (N.D.N.Y. Sept. 28, 2017)(quoting Gutierrez v. City

of New York, No. 08-CV-6537, 2011 WL 7832709, at *4 (S.D.N.Y. Sept. 26, 2011)

(emphasis in original)). “[I]n determining whether conduct amounts to an adverse

employment action, the alleged acts of retaliation need to be considered both separately

and in the aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in

gross’ as to be actionable.” Hicks, 593 F.3d at 165 (citing Zelnik v. Fashion Inst. of Tech.,

464 F.3d 217, 227 (2d Cir. 2006)).

To establish a prima facie case, a plaintiff must demonstrate a causal relationship

between protected activity and an adverse employment action. Id at 170. “[P]roof of

causation can be shown either: (1) indirectly, by showing that the protected activity was

followed closely by discriminatory treatment, or through other circumstantial evidence such

as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly,

through evidence of retaliatory animus directed against the plaintiff by the defendant.” Id.

(internal quotation marks and citation omitted).

“If the plaintiff sustains this initial burden, a presumption of retaliation arises.” Hicks,

593 F.3d at 164 (quotation marks and citation omitted). “The defendant must then

articulate a legitimate, non-retaliatory reason for the adverse employment action.” Id.

(quotation marks and citation omitted). The employer’s burden is merely one of

“production,” not proof. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981).

If the defendant articulates a legitimate, non-retaliatory reason for the adverse

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employment action, “the presumption of retaliation arising from the establishment of the

prima facie case drops from the picture.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834,

845 (2d Cir. 2013)(quotation marks and citation omitted). The plaintiff must then show

“that the desire to retaliate was the but-for cause of the challenged employment action.”

Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d Cir. 2015) (quoting Univ. of

Tex. V. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)). “‘But-for’ causation does not,

however, require proof that retaliation was the only cause of the employer's action, but

only that the adverse action would not have occurred in the absence of the retaliatory

motive.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018)(quotation marks

and citation omitted); see Zann Kwan, 737 F.3d at 846 (same). “The plaintiff [ ] bears the

ultimate burden to show that the employer's proffered reason was merely a pretext for an

unlawful motive.” Bentley v. AutoZoners, LLC, 935 F.3d 76, 88–89 (2d Cir. 2019) (internal

quotations omitted).

“To prevail at the summary judgment stage in a retaliation case, a defendant must

show that the plaintiff failed to make out a prima facie case of retaliation, or that the

defendant has offered legitimate, nonretaliatory reasons for the challenged actions, and

there are no triable issue of fact as to whether the defendant's explanations were

pretextual.” Buczakowski v. Crouse Health Hosp., Inc., No. 5:18-CV-0330 (LEK/ML), 2022

WL 356698, at *12 (N.D.N.Y. Feb. 7, 2022)(citations omitted).

III. BACKGROUND

The Court will set forth the relevant material facts in addressing the motion below.

IV. DISCUSSION

This case arises at the confluence of two equally important rights - the right of an

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employer to provide what it deems appropriate discipline and counseling for an employee,

and an employee’s right to be free from unlawful retaliation after engaging in protected

activity. Plaintiff is employed by DOCCS as a Nurse Administrator (“NA”) at Mid-State

Correctional Facility (“Mid-State”) in Marcy, New York. (Ex. “1”, Dkt. 1, ¶ 4; Ex. “51”,

Plaintiff’s deposition testimony, p. 17). Plaintiff asserts that was subjected to unlawful

retaliation primarily in connection with various disciplinary and counseling actions taken

against her.

Protected Activities

Plaintiff alleges that she engaged in the following protected activities during the

relevant period of time:

a. Filed a complaint with the Office of Diversity Management (“ODM”) against

Mid-State Deputy Superintendent of Administration (“DSA”) Terry Whitaker on

December 28, 2015 alleging that he engaged in discriminatory acts against her

based on her gender and race and/or national origin (See Ex. “2”, “Exhibit B” to the

Verified Complaint [Dkt. 1-2]);

b. Submitted a memorandum to the NYS Public Employees Federation AFL-CIO on

or around October 11, 2016, detailing specifically alleged acts of hostility and

retaliation committed by DOCCS personnel against her between August 25, 2016

and October 11, 2016 (See Ex. “2”, “Exhibit F” to Verified Complaint [Dkt. 1-6]);

c. Submitted a memorandum dated October 13, 2016, to Deputy Superintendent of

Programs Joslyn, detailing her strong concerns about being alone with DSA

Whitaker due to constant verbal abuse she was being subjected to by him and the

level of micromanagement (See Ex. “2”, “Exhibit G” to Verified Complaint [Dkt. 1-7]);

d. From October 12, 2016 through December 22, 2016, Plaintiff’s attorneys, acting

on her behalf, sent written correspondences to DOCCS officials further reporting and

detailing the discrimination and retaliation issues Plaintiff had been facing at work,

and requesting assistance in addressing this ongoing hostile work environment (See

Ex. “2”, “Exhibits H, I, and J” to Verified Complaint [Dkts. 1-8, 1-9, 1-10]).

(Ex. “51”, Plaintiff Dep., pp. 46 – 47; Ex. “23”, Interrogatory responses, ¶9). Defendant

concedes for purposes of this motion “that Plaintiff engaged in protected activities,

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beginning on December 28, 2015.” (Dkt. 38-65 at 6).

Alleged Retaliatory Acts

Plaintiff alleges the following acts of retaliation by Defendant:

a. “On January 27, 2016, Plaintiff was issued a Notice of Discipline (NOD) by the

DOCCS, written by Bureau of Labor Relations Director John Shipley, with six (6)

charges of alleged misconduct and a penalty of dismissal and loss of accrued

annual leave. See “Exhibit C” to Verified Complaint. During the grievance process,

Plaintiff was wrongfully suspended from work without pay. Despite an arbitrator

dismissing all charges that did not predate Plaintiff’s ODM complaint and drastically

reducing the imposed penalty with orders to pay Plaintiff for the time of her

suspension (See “Exhibit D” to Verified Complaint), Plaintiff has still not been fully

recouped for the salary that was wrongfully withheld from her during this

suspension.” (Ex. “23”, ¶10(a); Ex. “51”, Plaintiff Dep., pp. 49-55);

b. “On January 6, 2017, Plaintiff was again placed on unpaid administrative leave by

Superintendent Matthew Thoms due to alleged conduct during an interview with

Magdalah Plaisime. See “Exhibit K” to Verified Complaint. On February 2, 2017 and

February 17, 2017, Plaintiff was issued two (2) separate NODs and disciplinary

charges involving alleged conduct both related and unrelated to the interview with

Ms. Plaisime” (Ex. “23”, ¶10(b); Ex. “51”, Plaintiff Dep., pp. 277-78, 284-86; Ex. 1,

Dkt. 1, ¶¶ 32-33);

c. “Plaintiff has been subjected to a prolonged and continuous pattern of

discriminatory and retaliatory actions by DOCCS personnel that have impacted her

well-being, her ability to perform her professional duties, and created an ongoing

hostile work environment. Please refer to responses and documents cited in the

previous Interrogatories above” (Ex. “23”, ¶10(c)) – the “responses and documents

cited in the previous Interrogatories above” include Plaintiff’s 12/28/2015 ODM

complaint (Ex. “2”, Ex. “B” thereto, Dkt. 1-2; Ex.”4”), and the allegations made

therein (see, Ex. “23”, ¶¶ 2 – 6), and a list of allegedly hostile and retaliatory acts by

DOCCS personnel between August 25, 2016 and October 11, 2016 (Ex. “2”, Ex. “F”

thereto, Dkt. 1-6; Ex. “1”, Dkt. 1, ¶ 23);

d. DSA Terry Whitaker’s 2015-2016 employment evaluation of Plaintiff (Ex. “51”,

Plaintiff Dep., pp. 64-66, 136-37);

e. DSA Whitaker’s October 12, 2016 counseling session and October 13, 2016

counseling memorandum (Ex. “1”, Dkt. 1, ¶ 24);

f. Plaintiff’s receipt of a December 16, 2016 memorandum requesting a response to

a workplace violence complaint by another employee against her (Ex. “1”, Dkt. 1, ¶

30; Ex. “51”, Plaintiff Dep., pp. 265-66, 269-70);

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g. DSA Sandra O’Connor’s 2016-2017 employment evaluation of Plaintiff (Id., pp.

143-43);

h. DSA O’Connor’s January 12, 2018 counseling memorandum (Ex. “1”, Dkt. 1, ¶

39; Ex. “51”, Plaintiff Dep., pp. 308-09); and

i. General allegations of “assaults” by employees she supervised, phone calls from

the facility when she was off-duty, and complaints made about her by other staff

members. (Ex. “1”, Dkt. 1, ¶¶ 38-39).

Defendant argues that Plaintiff cannot establish that several of these actions either

qualified as adverse employment actions under the law, or were causally connected to the

alleged protected activities. Further, Defendant contends, Plaintiff cannot raise a question

of fact, based on the admissible proof in the record, to rebut Defendant’s showing that the

reasons for discipline, evaluations and other employment actions were legitimate,

non-retaliatory and non-pretextual.

Prima Facie Case

a. January 27, 2016 Notice of Discipline

1. Causally Related to Protected Activity

A claim of retaliation requires, minimally, that a plaintiff be able to allege that she

was subjected to an adverse action because of her engagement in a protected activity. See

Middleton v. Metropolitan College of New York, 545 F. Supp.2d 369, 375-76 (S.D.N.Y.

2008) (no causation shown for purposes of satisfying a prima facie case of retaliation when

the decision to terminate the plaintiff was made before the plaintiff delivered a sexual

harassment complaint to the decision maker). Defendant contends that the January 27,

2016 Notice of Discipline was the byproduct of a course of discipline that commenced prior

to the protected activity in issue, and therefore cannot establish a causal nexus between

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this action and a protected activity. See Slattery v. Swiss Reinsurance America Corp., 248

F.3d 87, 95 (2d Cir. 2001) (temporal proximity alone does not create an inference of

causation where “gradual adverse job actions began well before the plaintiff had ever

engaged in any protected activity”); Hardy v. Rochester Genesee Regional Transportation

Authority, 906 F. Supp.2d 178, 186 (W.D.N.Y. 2012) (employee could not establish causal

nexus between his protected activity and issuance of a “last-chance agreement” where the

agreement was the end result of a course of progressive discipline beginning before the

protected activity). In this regard, Defendant has provided uncontradicted evidence that at

least some of the charges in the 1/27/2016 NOD had been contemplated in advance of

December 28, 2015 when Plaintiff filed her first ODM complaint. This evidence indicates

that DSA Whitaker had emailed Michele O’Gorman at DOCCS Bureau of Labor Relations

on November 16, 2015 requesting that discipline be authorized as against Plaintiff for

work-related issues. A referral had been made, and a determination that disciplinary action

was warranted against NA Czerwinski, by November 2015. (Whitaker Decl., ¶ ¶ 17 - 24,

Ex. “D”-“E” thereto; O’Gorman Decl., ¶¶ 3 – 6, Exs. “A” - “B” thereto; Shipley Decl., ¶15).

Plaintiff acknowledges that the charges in this NOD that predate her ODM complaint

cannot be deemed retaliatory, however she has supplied evidence indicating that of the six

(6) charges in the NOD, only Charges 1 & 3 related to events that predated Plaintiff’s ODM

complaint. (Ex. “C" to the Complaint). Plaintiff contends that Charges 2, 4, 5, and 6 were

baseless and meritless, and were added following Plaintiff’s ODM complaint in order to

justify terminating Plaintiff’s employment in retaliation for the ODM complaint. Further,

Plaintiff points to evidence indicating that although John Shipley, Director of the Bureau of

Labor Relations, signed the NOD, DSA Whitaker - who was the subject of Plaintiff’s ODM

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complaint - served as the primary source for Charges 1, 2, 3, and 6. (See O’Gorman Decl.,

¶¶ 9-14).1

Based on the temporal proximity of the January 27, 2016 NOD to Plaintiff’s ODM

complaint, and presuming that someone involved with this NOD had knowledge of the

ODM complaint (discussed next), a reasonable factfinder could conclude that there was a

causal connection between Plaintiff’s ODM complaint and the post-ODM complaint

charges. In this regard, a reasonable factfinder could conclude that the NOD charges were

beefed up with post-ODM complaint conduct to retaliate against Plaintiff by providing

additional justification for her discharge.

2. Knowledge of the ODM Complaint

Defendant argues that admissible evidence indicates that neither DSA Whitaker,

who reached out to O’Gorman to commence the discipline, nor O’Gorman, the author of

the 1/27/2016 NOD, knew that Plaintiff filed the ODM Complaint when the NOD was

served. Plaintiff does not challenge O'Gorman’s lack of knowledge, but does challenge

Whitaker’s.

The evidence indicates that on January 4, 2016, HUB Superintendent Paul Gonyea

called Whitaker and told him he had to come to Gonyea’s office so Gonyea could give him

a cease and desist order for bullying in the workplace. (Whitaker Decl., ¶ 27; Ex. “52”

Whitaker Dep., pp. 47-50; Ex. “29”, Whitaker April 27, 2016 sworn hearing testimony, pp.

152-53). Whitaker testified that at Gonyea’s office, Gonyea “told me that, you know, there

1The source of Charge 4 was Mid-State Supt. Joseph Ward, Holly Collett, Assistant

Director of DOCCS Health Services and Management Operations, DOCCS Regional

Health Services Administrator Russell Blair. (O’Gorman Decl., ¶¶ 9-14)). Charge 5 was

withdrawn and the parties to not indicate who was the source of this charge.

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was a complaint that was filed through Office of Diversity Management, and said another

thing, and basically he said, you know, if any of this is accurate, see some -- tell me to

cease and desist, I'm like, okay.” (Def. Ex. “52” at 50). Whitaker also testified:

Q. He told you to cease and desist, he used those actual words?

A. Yeah, I believe, I'm not sure if it was that or if it was a form that I got, that, you

know, stated that.

Q. Stated what?

A. Cease and desist.

* * *

Q. And if he is telling you to cease and desist. Isn't it necessary for you to know who

filed the complaint in order for you to cease and desist?

A. No. No, I don't -- I don't believe so.

Q. So are you saying, is it your testimony that when you left his office, you did not

know who filed this complaint against you?

A. Yeah, I do not recall who -- I don't recall that. I remember discussing, you know,

certain, you know, issues and situations, you know, where, you know, if this has

happened and if that's happened, if this is happening, you know, that type of thing,

you know.

Q. Okay. These -- these situations that you were discussing with him, if this

happened or if that happened, can you tell me what those are in a little more detail?

A. You know, I don't recall what all the exact verbiage was on it, you know, I guess,

there was -- I don't recall the whole meeting, to be quite honest with you.

Q. Well, to the best of your memory, when he said to you, and you're recalling, if this

happened or if that happened, you know, cease or desist. Can you please tell me

what it is that he's referring to as if this happened or that happened?

A. Like I said, I don't recall. I don't recall what the exact verbiage was.

Q. Do you believe that, at least at the time of this meeting, you understood what he

was referring to?

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A. Yes, I do.

Q. And you understood that you needed to cease and desist?

A. If it was happening, yes.

(Def. Ex. “52” at 51-54).

Based on this testimony, a reasonable factfinder could conclude that despite

Whitaker’s professed lack of memory of the specifics, the discussion in the

Superintendent’s office involving the substance of Plaintiff’s ODM complaint provided

enough detail to allow Whitaker to deduce that it was Plaintiff who filed the complaint

against him. This satisfies Plaintiff’s de minims burden of establishing that Whitaker had

knowledge of the protected conduct shortly before the January 27, 2016 NOD was lodged.

3. Adverse Action

The NOD resulted in Plaintiff’s immediate suspension without pay and sought

Plaintiff’s discharge. Plaintiff disputed the penalty by filing a disciplinary grievance. A

formal hearing was held over the course of three (3) days before Arbitrator Ivor R.

Moskowitz. On August 19, 2016, Arbitrator Moskowitz issued a decision finding Plaintiff

guilty on Charges 1 & 3, dismissing Charges 2 and 6 for failure to prove by a

preponderance of the evidence that Plaintiff was insubordinate, and dismissing Charge 4

without prejudice on procedural grounds. Charge 5 was withdrawn by the State. (Exhibit

"D" to Complaint at 7-9; O'Gorman Decl., ¶ 15). Plaintiff indicates that while Charges 1 and

3 that pre-dated Plaintiff’s ODM complaint were upheld, DOCCS’s request for a penalty of

termination was not. The appropriate penalty was determined to be one-month suspension

without salary. (Exhibit "D" to Complaint at 10). The arbitrator also found that DOCCS had

to pay Plaintiff for the time of her initial suspension because DOCCS did not meet the

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standard under the collective bargaining agreement for initially suspending her without pay.

(Id. at 9-10).

Plaintiff contends that she had to institute an Article 75 petition because she did not

timely receive her entitled backpay from when she was suspended. Plaintiff indicates that

on January 23, 2018, she received a judgment from the Albany County Supreme Court

confirming the arbitrator’s award and ordering DOCCS to pay Plaintiff what she was owed

with interest. However, Plaintiff contends, she was still not paid despite the Decision only

giving DOCCS sixty (60) days to comply with the order as DOCCS is appealing the

decision. (Exhibit "E" to Complaint). Defendant contends that there was a legitimate,

non-retaliatory reason for the delay in paying Plaintiff for her time on suspension. The

Article 75 petition relative to the Arbitrator’s decision was heard in State Court and on

appeal to the Appellate Division, Third Department, and the Appellate Division remanded

the matter to the arbitrator for further proceedings, finding that the arbitrator had exceeded

his authority. (Shipley Decl., ¶ 18; Ex. “51”, Plaintiff Dep., pp. 186 - 87). A Consent Award

was then signed, and Plaintiff was made whole for any lost wages resulting from the 2016

suspension. (Shipley Decl., ¶ 18, Ex. “E” thereto; Ex. “51”, Plaintiff Dep., pp. 187 – 193;

Exs. “33”, “36”).

Plaintiff does not specifically address Defendant’s claim of a legitimate and non-

retaliatory reason for delay in paying plaintiff her back pay, but rather argues that in light of

the combination of adverse actions taken against her initiated by or contributed to by

Whitaker, a reasonable juror could conclude that these actions were retaliatory in nature.

See Dkt. 39 at 25. By failing to specifically address the delay in pay issue, Plaintiff has

abandoned any claim that the delay was itself a retaliatory action. See Jackson v. Fed.

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Express, 766 F.3d 189, 197–98 (2d Cir. 2014) ("[I]n the case of a counseled party, a court

may, when appropriate, infer from a party's partial opposition that relevant claims or

defenses that are not defended have been abandoned."); Kovaco v.

Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 143–44 (2d Cir. 2016) (affirming

district court's grant of summary judgment on abandonment grounds because plaintiff's

opposition to summary judgment motion "failed to support or even address the purported

hostile-work-environment claims"); Hall v. Verizon New York, Inc., No. 13-CV-5518, 2017

WL 3605503, at *7 (S.D.N.Y. July 26, 2017) (dismissing discrimination claims "as

abandoned" because plaintiff "made no effort whatsoever to address these claims in her

opposition brief on [defendant's] motion for summary judgment"). Thus, Defendant’s

motion is granted to the extent it seeks to dismiss any claim that it retaliated against

Plaintiff by failing to timely pay her back-pay following her return from suspension. See

Dorcely v. Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d 178, 199 (E.D.N.Y.

2009)("Second Circuit case law makes clear that a court may simply assume that a plaintiff

has established a prima facie case and skip to the final step in the McDonnell Douglas

analysis, as long as the employer has articulated a legitimate, nondiscriminatory reason for

the adverse employment action.")(citing cases).

However, Plaintiff has met her de minimis burden of establishing a prime facie case

of retaliation based on the institution of the January 27, 2016 NOD. This action was

commenced approximately one month after Plaintiff filed her ODM complaint against

Whitaker, and at the institution of the proceeding Plaintiff was improperly suspended

without pay. Given the close temporal proximity the Plaintiff’s complaint against Whitaker,

a rational factfinder could infer a retaliatory motive in instituting this disciplinary action and

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suspending her without pay. Further, a rational factfinder could conclude that the institution

of this action and concomitant suspension without pay would have dissuaded a reasonable

employee from making or supporting a claim of discrimination. The Court will address

Plaintiff’s ultimate burden as to this claim after it addresses Plaintiff’s other alleged adverse

actions.

b. 1/6/17 Suspension, 2/2/17 NOD, 2/17/17 NOD

Plaintiff alleges that on January 6, 2017, she was placed on unpaid administrative

leave by Superintendent Matthew Thoms due to alleged conduct during an interview with

Magdalah Plaisime, and on February 2, 2017 and February 17, 2017, she was issued

NODs and disciplinary charges. (Ex. “23”, ¶10(b); Ex. “51”, Plaintiff Dep., pp. 277-78,

284-86; Ex. 1, Dkt. 1, ¶¶ 32-33). Defendant contends that there were legitimate,

non-discriminatory reasons for these actions.

1. 1/6/17 suspension, 2/17/17 NOD.

The facts surrounding Plaintiff’s 1/6/17 suspension and 2/17/17 NOD are, to a large

degree, undisputed. See Pl. Resp. to Def. L. R. 7.1 Stat.,2 ¶¶ 249 – 266.3 Plaintiff

2Local Rule 7.1(a)(3) was renumbered as Local Rule 56.1(a) and (b) on January 1,

2021. Although the instant motion was filed after January 1, 2021, the parties refer to

Local Rule 7.1(a)(3).

3Plaintiff admits, either in whole or in part, many of the properly supported facts in

Defendant’s L.R. 7.1 Statement of Facts. See Dkt. 39-4, ¶¶ 249 – 266. Some of Plaintiff’s

denials cite to where in the record support for denial exists as required by the Local Rules,

but in others Plaintiff simply denies facts (or portions of facts) without citation to where in

the record admissible evidence supports the denial. These unsupported denials are

insufficient under the Local Rules to raise a question of fact as to Defendant’s properly

supported statement of facts. See L. R. 56.1(b)(“Each denial shall set forth a specific

citation to the record where the factual issue arises. . . . Any facts set forth in the

Statement of Material Facts shall be deemed admitted unless specifically controverted by

(continued...)

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interviewed job candidate Magdalah Plaisime for a nursing job at Mid-State on December

30, 2016. She purportedly made comments which Plaisime found offensive.4 Plaisime

complained to Whitaker. Whitaker transferred the phone call to Superintendent Thoms,

who took the report, and called John Shipley to refer the matter for possible discipline, and

suspended Plaintiff with pay on January 6, 2017. Shipley made the decision to bring

charges, which were served on February 17, 2017. Plaintiff was suspended without pay

on this date pending the outcome of the disciplinary charge. (Shipley Aff. ¶ 24). While

Plaintiff states in her response to Defendant’s Local Rule 7.1 Statement of Material Facts

that "Whitaker played a crucial role in facilitating and motivating to have these charges

brought against Plaintive out of retaliation," she does not indicate in that document where

in the record proof of this assertion can be found. Nonetheless, in her brief in opposition to

Defendant’s motion, Plaintiff cites to Whitaker’s deposition testimony where he admits to

being directly involved with initiating and drafting the charges against Plaintiff in the

February 17, 2017 NOD and the February 2, 2017 NOD (discussed next). (Dkt. 39 at 21,

citing Def. Ex. 52 at 108, 114-115).

On June 6, 2017, Arbitrator E. David Hyland issued an Interim Opinion and Award

finding that DOCCS lacked probable cause to suspend Plaintiff without pay within the

meaning of the parties' collective bargaining agreement, and that Plaintiff needed to be

3(...continued)

the opposing party.”)(underscoring in original).

4The charges allege that Plaintiff stated, in sum and substance, "they don't like

blacks around here," and "Do you like gay people? I am only asking because if you don't

like gay people, you cannot work around here." Compl. Ex. L. Plaintiff denies that she

made these statements.

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returned to payroll and given back the accruals she used. (Ex. "L" to Complaint at 6).

After a three (3) day hearing, Arbitrator Hyland found Plaintiff not guilty on all the

charges from the February 17, 2017 NOD. (Ex. "M" to Complaint). Arbitrator Hyland

determined that the State had failed to establish by a preponderance of the evidence the

charges and, therefore, there was no just cause for discipline on those charges. (Id. at 25).

Arbitrator Hyland found that Plaintiff was “entitled to reinstatement and make whole relief

for the entire period of her suspension without pay until the date of her return to the

payroll.” (Id.).

A reasonable factfinder could conclude that Plaintiff’s improper suspension without

pay would have dissuaded a reasonable employee from making or supporting a claim of

discrimination. Further, inasmuch as this occurred shortly after Plaintiff’s union

representative’s December 1, 2016 letter to Thoms requesting help with a purported hostile

work environment created for Plaintiff by Whitaker, (Ex. "I" to Complaint), and in light of

Whitaker’s involvement in the NDO, a reasonable factfinder could conclude that a

retaliatory motive existed for bringing these charges and suspending Plaintiff without pay.

Defendant properly supports its contention that despite the resolution, the charges

were brought for legitimate, non-discriminatory reasons. See Def. L. R. 7.1 Stat., ¶¶ 249 –

266. The Court will address below whether Plaintiff has set forth sufficient facts for a

reasonable factfinder to conclude that the Defendant’s articulated reason for the adverse

action was merely a pretext for discrimination.

2. 2/2/17 NOD.

On January 25, 2017, DOCCS Assistant Counsel Nancy Steuhl forwarded to John

Shipley a memorandum recommending administrative action to DOCCS Bureau of Labor

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Relations, based upon a Governor’s Office of Employee Relations (“GOER”) investigation

into allegations against Plaintiff made by DOCCS RN Jean Day. (Shipley Decl., ¶19, Ex. “F”

thereto). The NOD, drafted by Shipley and which sought Plaintiff’s dismissal from service

and the loss of any accrued annual leave, brought three (3) charges against Plaintiff, all

alleging that she was “insubordinate to a supervisor” for failing to comply with direct orders.

(Shipley Ex. “G”). The supervisor referred to in each charge was Whitaker. (Def. Ex. “52”

at 110, Whitaker Declaration at ¶ 48-50). Whitaker detailed the factual basis for the

charges of insubordination against Plaintiff in the 2/2/17 NOD in his Declaration at ¶¶ 47 –

50. This presents a legitimate, non-discriminatory reason for the disciplinary action. As

indicated in Whitaker’s deposition, he played some role in the institution of the charges in

the February 2, 2017 NOD. This NOD did not result in a hearing as the charges were

privately settled and dismissed. (Shipley Dec. at ¶ 21).

A reasonable factfinder could conclude that the NOD seeking Plaintiff’s termination

would have dissuaded a reasonable employee from making or supporting a claim of

discrimination, and that the charges were casually related to Plaintiff’s complaint about

Whitaker. The Court will address below whether Plaintiff presents evidence from which a

reasonable factfinder could conclude that the articulated reasons are merely a pretext for

discrimination.

c. Ongoing hostile environment

Plaintiff alleges that an ongoing hostile environment was retaliation for her

complaints. In her interrogatory responses and Complaint, Plaintiff alleges that she “has

been subjected to a prolonged and continuous pattern of discriminatory and retaliatory

actions by DOCCS personnel that have impacted her well-being, her ability to perform her

17

professional duties, and created an ongoing hostile work environment. Please refer to

responses and documents cited in the previous Interrogatories above” (Ex. “23”, ¶10(c)).

The “responses and documents cited in the previous Interrogatories above” include

Plaintiff’s 12/28/2015 ODM complaint (Ex. “2”, Ex. “B” thereto, Dkt. 1-2; Ex.”4”), the

allegations made therein (see, Ex. “23”, ¶¶ 2 – 6), and a list of allegedly hostile and

retaliatory acts by DOCCS personnel between August 25, 2016 and October 11, 2016 (Ex.

“2”, Ex. “F” thereto, Dkt. 1-6; Ex. “1”, Dkt. 1, ¶ 23).

1. Plaintiff’s ODM Complaint

Plaintiff characterizes the allegedly hostile conduct set forth in her 12/28/2015 ODM

complaint as “retaliation”. (Ex. “23”, ¶¶ 2 – 6, 10(c)). That ODM complaint was, by

Plaintiff’s own testimony, her first “protected conduct.” (See, Ex. “51”, p. 47). As indicated

above, adverse action that occurs before protected conduct cannot support a claim of

retaliation. Thus, the allegedly hostile conduct set forth in Plaintiff’s 12/28/2015 ODM

complaint cannot be the basis of retaliation claim. Accordingly, that much of the retaliation

claim based upon the alleged conduct in Plaintiff’s 12/28/2015 ODM complaint is

dismissed.

2. List of conduct between August 25, 2016 and October 11, 2016

Plaintiff claims that she returned to work on August 25, 2016 after her suspension

from the January 27, 2016 NOD, and was “welcomed back with open hostility and further

retaliation.” (Ex. “1”, Dkt. 1, ¶30). Plaintiff testified that she prepared the document

annexed to the Complaint as Ex. “F” “to keep track of everything” at the request of her

union representative. (Ex. “51”, Plaintiff’s Dep., pp. 195-96). The list is contained at Ex. “F”

to the Complaint, Dkt. 1-6 (hereinafter “Dkt. 1-6”). The listed incidents cover the period

18

August 25, 2016 through October 11, 2016. (Ex. “1”, ¶30).

As Defendant argues, in the context of a retaliation claim, to establish an adverse

employment action a plaintiff must show “that a reasonable employee would have found

the challenged action materially adverse, which means that the adverse action was not

trivial and would deter a reasonable person from engaging in protected activity.” Jaeger v.

N. Babylon Union Free Sch. Dist., 191 F. Supp. 3d 215, 235 (E.D.N.Y. 2016) (internal

quotations omitted). “[A] plaintiff alleging a hostile work environment ‘must demonstrate

either that a single incident was extraordinarily severe, or that a series of incidents were

‘sufficiently continuous and concerted’ to have altered the conditions of her working

environment.’” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). However, “petty slights

or minor annoyances that often take place at work and that all employees experience do

not constitute actionable retaliation.” Hicks, 593 F.3d at 165; see Richardson v. New York

State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (“not every unpleasant matter

short of [discharge or demotion] creates a cause of action’ for retaliatory discharge.”).

Similarly, “a plaintiff's purely subjective feelings about the events and circumstances

surrounding the allegedly adverse employment” are insufficient to establish a materially

adverse action. Islamic Soc'y of Fire Dep't Pers. v. City of New York, 205 F. Supp. 2d 75,

84 (E.D.N.Y. 2002).

Plaintiff testified about each of the 15 bullet points and the long paragraph at the

end of that document. Plaintiff’s testimony in this regard is summarized at ¶¶ 164–184 of

Defendant’s Local Rule 7.1 Statement. Plaintiff admits many of the statements (which are

based on her deposition testimony), and denies others on the grounds that “the alleged

action was intended to attack Plaintiff and, in the aggregate, added to the overall hostile

19

environment and adverse conditions of her job at DOCCS.” Plaintiff’s unsupported denials

are insufficient under the Local Rules to raise a question of fact as to Defendant’s properly

supported statements of fact. See L. R. 56.1(b).

In her brief in opposition to the instant motion, Plaintiff contends that when she

returned to work from her suspension on August 25, 2016 she “continued to receive

discriminatory and retaliatory treatment from DSA Whitaker, who at the time was still her

direct supervisor.” (Dkt. 39 at 3). Plaintiff asserts that “[t]his included having to fight to

have her health insurance reactivated, being hassled when getting her non-back pay

checks, and having to fight to have her accruals properly calculated.” (Id., citing Ex. “A”5 at

¶ 22-23; Ex. "F" to Complaint). Because Plaintiff fails to oppose the majority of

Defendant’s contentions relative to Plaintiff’s list of purportedly harassing conduct when

she returned from her suspension, she is deemed to have abandoned that much of her

claim based upon these unchallenged activities. She does, however, challenge some

conduct - having to fight to have her health insurance reactivated, being hassled when

getting her non-back pay checks, and having to fight to have her accruals properly

calculated.

Regarding the reactivation of her health insurance following her suspension, Plaintiff

admits Defendant’s Local Rule 7.1 Statement that “she does not know if she had health

insurance upon her return to work.” Pl. Resp. to Def. 7.1 Stat., ¶ 168 (Dkt. 39-4, ¶ 41). It is

hard to square Plaintiff’s contention that she had to fight to get her health insurance

reactivated with her admission (based on her deposition testimony) that she did not know if

5Ex. A is the Complaint in this action.

20

she had health insurance upon her return to work. Plaintiff’s reference to the allegations in

the Complaint that contradict her testimony at her deposition fails to raise a material

question of fact as to whether she experienced retaliation in relation to reactivating her

health insurance upon her return from suspension. Thus, Plaintiff may not proceed on this

issue. However, even though she admits that she received her non-back pay checks and

deposited the funds, received her back pay, and was paid for back accruals, this does not

necessarily mean that she was not hassled about getting the funds or had to fight to obtain

them. This is conduct that could dissuade a reasonable employee from making or

supporting a claim of discrimination and therefore satisfies Plaintiff’s de minimis of

establishing an adverse action based upon this conduct.

Defendant also contends that there is no causal connection between Plaintiff’s ODM

Complaint and the alleged conduct described in Dkt. 1-6. Defendant argues that the

conduct alleged in Dkt. 1-6 is far less objectively hostile than what Plaintiff alleges occurred

prior to her ODM Complaint. Defendant maintains that to establish a causal connection

between the protected activity and the alleged hostility, Plaintiff must demonstrate “some

increase in the discrimination or harassment—either a ‘ratcheting up’ of the preexisting

behavior, or new, additional forms of harassment[.]’” Dkt. 38-65 at 16 (quoting Bacchus v.

N.Y. City Dep’t of Educ., 137 F. Supp. 3d 214, 244-45 (E.D.N.Y. 2015)(additional citations

omitted); see also Bacchus, 137 F. Supp. 3d at 245 (“If, however, the discrimination was

just as bad before the employee complained as it was afterwards, then the employee's

complaints cannot be said to have led to that discriminatory behavior.”)(interior quotation

marks and citation omitted).

Drawing all reasonable inferences in Plaintiff’s favor, a rational factfinder could

21

conclude that being hassled about getting her non-back pay checks, and having to fight to

have her accruals properly calculated, amounted to an increase in preexisting behavior, or

new, additional forms of harassment after she returned from suspension. As indicated

above, when reviewing the circumstances in the light most favorable to Plaintiff, she has

met her de minimis burden of showing that a reasonable employee in similar circumstances

would have been dissuaded from bringing or supporting a charge of discrimination.

Further, Plaintiff asserts that DSA Whitaker was behind the harassment she suffered upon

her return to work. This satisfies Plaintiff’s burden of establishing a causal connection at

the prima facie stage.

d. DSA Whitaker’s 2015-2016 employment evaluation of Plaintiff

Plaintiff claims that DSA Whitaker’s 2015-16 “Unsatisfactory” employment evaluation

of her, the first evaluation she received after she filed the ODM complaint, was retaliatory.

(Ex. “51”, p. 66). Defendant argues that the admissible evidence establishes that

Defendant had legitimate, non-discriminatory reasons for this employment evaluation, (see

Def. Rule 7.1 statement, ¶¶ 185 - 226; Whitaker Decl., ¶¶ 29 – 44); that many of the

critiques levied in the evaluation had been the subject of critiques in prior employment

evaluations or counseling memorandums which preceded the 2015-16 evaluation and

Plaintiff’s ODM Complaint; and that this negative evaluation was unaccompanied by any

change in job responsibilities, termination, or demotion. (Ex. “51”, Plaintiff Dep., pp. 64-75,

69-71; Rule 7.1 Statement at ¶¶ 17 – 23). Plaintiff counters that this was the first

unsatisfactory overall grade she had ever received; that Whitaker extensively listed

criticisms and serious accusations against her; that the evaluation indicates that Plaintiff

received the January 28, 2016 NOD “for the negligence noted throughout this performance

22

evaluation” but does not mention that four of the six charges were either withdrawn by

DOCCS or dismissed, or that the charges which were upheld only applied to two specific

allegations (inventory review and updating accreditation folders); and that the evaluation

was overturned on appeal and changed from “Unsatisfactory” to “Satisfactory,” (Def. Ex.

“51” at 134-136, Def. Ex. “19”), although the written criticisms by Whitaker, including those

linked to the January 2016 NOD, remained in the final evaluation. (Id.)

Drawing all reasonable inferences in Plaintiff’s favor, a reasonable factfinder could

conclude that Plaintiff has established a prima facie case of retaliation in that Whitaker

issued her an “Unsatisfactory” evaluation that was reversed on appeal, yet Whitaker’s

criticisms remained in her file. While Plaintiff agreed that the critiques contained in the

2015-16 evaluation were similar to critiques which had been raised in prior evaluations

before she filed a complaint against Whitaker, Plaintiff evidently did not agree with the

overall assessment or she would not have appealed it. Because the “Unsatisfactory”

overall grade was reversed on appeal, a reasonable factfinder could conclude that Whitaker

issued this evaluation in retaliation for Plaintiff’s ODM complaint. Under these

circumstances, a reasonable factfinder could conclude that an objectively reasonable

employee would be dissuaded from filing or supporting a charge of discrimination. Further,

although a court is not to second guess business judgments so long as they are not based

on discrimination, see Yu v. N.Y. City Hous. Dev. Corp., 494 Fed. Appx. 122, 125 (2d Cir.

2012), a reasonable fact finder could conclude that for purposes of the prima facie case

Whitaker’s “Unsatisfactory’ assessment of Plaintiff was based on a retaliatory motive.

Although Plaintiff had previously received negative evaluations, this was the first that was

overall “Unsatisfactory,” providing some indication that the evaluation was not a mere

23

continuation of Plaintiff’s prior performance but rather an escalation of the criticism Plaintiff

received. Plaintiff has met her de minimis burden of establishing that this conduct

constituted an adverse action for purposes of the prima facie case.

e. DSA Whitaker’s October 12, 2016 counseling session and October 13, 2016

counseling memorandum.

Defendant contends that it has articulated legitimate, non-retaliatory reasons for DSA

Whitaker’s October 12, 2016 counseling session and October 13, 2016 counseling

memorandum. (Dkt. 38-65 at 18, citing Whitaker Decl., ¶¶ 45 – 46 and Def. Rule 7.1

Statement at ¶¶ 219– 226). Citing to Defendant’s Rule 7.1 Statement at ¶¶ 219 – 226,

Defendant maintains that “[t]he counseling memorandum, and the meeting of October 12,

2016, was unrelated to any complaint made by Plaintiff against Whitaker, Whitaker did not

hold the counseling or draft this in any way to retaliate against Plaintiff for any prior

complaint, and the counseling and memorandum were based on legitimate performance

issues detailed therein.” (Id.).

Plaintiff did not properly respond to the supported facts presented in Defendant's

Rule 7.1 Statement at ¶¶ 219 – 226 in that, in connection with her denials, she failed to set

forth “a specific citation to the record where the factual issue arises” as required by Local

Rule 56.1(b). Thus, all of Defendant’s facts asserted in its Rule 7.1 Statement at ¶¶ 219 –

226 are deemed admitted. (See L.R. 56.1(b)). Although Plaintiff opposes Defendant’s

position in her brief by citing to the counseling memo, (see Dkt. 39, at 5-66) this provides

6Plaintiff asserts:

On October 12, 2016, the day after Plaintiff submitted her complaint to

Representative Geraghty, Plaintiff met with DSA Whitaker and

(continued...)

24

Plaintiff no benefit. The face of the counseling memorandum indicates that the counseling

session, and resulting memorandum, were non-punitive in nature and intended to address

some of Plaintiff’s performance deficiencies. (See Def. Rule 7.1 Stat., ¶ 2217). While

Plaintiff clearly did not like being counseled, (see id.8) , the employer had the right to

counsel Plaintiff, like all other employees, when it learned of deficient work performance.

Further, Plaintiff did not receive any discipline, nor any reduction in duties, status, authority,

or pay. A reasonable factfinder would not conclude that an employee in similar

circumstances - that is, the employer addressing legitimate performance deficiencies

resulting in a non-punitive counseling memorandum - would be dissuaded from bringing or

6(...continued)

Superintendent Ward for a formal counseling session, which DOCCS

claimed was "non-punitive and [was] intended to be a positive and

constructive" experience. (Whitaker Ex. “I”). The resulting counseling memo,

dated October 13, 2016, reads as a laundry list of 11 allegations and

criticisms against Plaintiff, repetitively used the statements “[t]his is very

unprofessional and will not be tolerated” and “[t]his is unacceptable and will

not be tolerated” throughout the memo. (Id.). Whitaker also characterized

Plaintiff in the memo as “insubordinate.” (Id.). Furthermore, Plaintiff was

denied her request to bring Union representation to this counseling session

with Whitaker and Superintendent Ward. DOCCS’ excuse for this denial was

that “union representation is only for disciplinary purposes.” (Id.).

(Dkt. 39, at 5-6).

7(“Once again, this counseling is non-punitive and is intended to be a positive and

constructive method of enforcing the need to comply with DOCCS Directives and

guidelines. It is hoped that you will make efforts to see that similar situations of this nature

do not occur in the future.”)

8(“You began this counseling session in a very defensive fashion requesting union

representation. It was explained to you by Supt. Ward and myself that union

representation is only for disciplinary purposes. The purpose of this was simply to ensure

that policies and procedures as well as directives are adhered to. Your demeanor during

this counseling session were inappropriate and very unprofessional. The yawning and

tapping on your watch while stating ‘are we almost done here? I have work to do’ will not

be tolerated. Comments and attitudes such as this are very insubordinate.”)

25

supporting a claim of discrimination. And Plaintiff has failed to present admissible evidence

which would be sufficient to permit a rational finder of fact to infer a retaliatory motive in the

counseling session. Plaintiff fails to present evidence contradicting Defendant’s evidence

that “[t]he counseling memorandum, and the meeting of October 12, 2016, was unrelated to

any complaint made by Plaintiff against Whitaker, and Whitaker did not hold the counseling

or draft this in any way to retaliate against Plaintiff for any prior complaint,” (Def. Rule 7.1

Statement at ¶ 222), or that “Whitaker did not know of a complaint letter mailed to DOCCS

in Albany on October 12-13, 2016.” (Def. Rule 7.1 Statement at ¶ 225). To the extent

Plaintiff argues that the counseling session was the result of her December 28, 2015 ODM

complaint against Whitaker, that complaint is too temporally distant from the counseling

session to amount to a showing that the protected activity was followed closely by

discriminatory treatment. While the Second Circuit has held that there is there is no “bright

line” rule for determining temporal proximity and in some circumstances even months-long

gaps between the exercise of a right and an adverse employment action could imply a

causal connection, Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013), “[g]enerally,

courts in this circuit have held that the temporal nexus between the protected activity and

the adverse employment action must be three months or less to establish a causal

connection.” Jackson v. N.Y. State Off of Mental Health, No. 11 Civ. 7832 (GBD) (KNF),

2012 WL 3457961, at *11 (Aug. 13, 2012)(collecting cases). Moreover, Plaintiff has not

pointed to any other evidence indicating that Whitaker had a retaliatory motive, as opposed

to addressing legitimate workplace concerns, in holding the counseling session and issuing

the memorandum. Plaintiff’s disagreement with the results of the counseling session is

insufficient to support an inference of a retaliatory motive. Thus, Defendant’s motion is

26

granted to the extent the retaliation claim is premised on Whitaker’s October 12, 2016

counseling session and October 13, 2016 counseling memorandum.

f. December 16, 2016 Memorandum.

Plaintiff points to her receipt of a December 16, 2016 memorandum requesting a

response to a workplace violence complaint by another employee against her as evidence

of retaliation. (Ex. “1”, Dkt. 1, ¶ 30; Ex. “51”, Plaintiff Dep., pp. 265-66, 269-70). Defendant

contends that this claim is without merit.

The evidence indicates that Plaintiff was asked by Acting Deputy Superintendent for

Security Services Burns to respond to a workplace violence (WPV) complaint filed against

her by another employee by memorandum dated December 16, 2016. (Ex. “51”, Plaintiff

Dep., p. 269; Ex. “43”). Plaintiff responded. (Ex. “51”, Plaintiff Dep., pp. 269-270; Ex. “44”).

She was not formally disciplined for the December 16, 2016 WPV complaint. (Ex. “51”,

Plaintiff Dep., p. 270). Thus, Defendant argues, on its face this was not an “adverse action.”

Plaintiff contends that the memorandum, which remains in her personnel file, was a

“direct attack and character assassination” of her based upon conduct that she had not

been previously counseled against. See Dkt. 39 at 20.9 She asserts that while she “was

9Plaintiff asserts:

Specifically, the memo alleges that Plaintiff engaged in “combative” and

“demeaning” conduct against another employee, that she has told lies “solely for

the purpose of causing friction between staff,” that she leaves staff members

“feeling stressed and upset” on almost a daily basis, and that the medical unit was

in “turmoil” and in a worse position than before Plaintiff had returned from her 2016

NOD suspension. (Def. Ex. “43”). Plaintiff had not received any prior notice from

anyone at DOCCS about any such alleged problems, and no one ever tried

discussing these alleged matters with her in an informal or private manner before

generating a formal memo for her record.

(continued...)

27

allowed to submit a written response to these allegations, the memo itself still exists on

Plaintiff’s record and serves as another bullet in the chamber that DOCCS could use

against Plaintiff later on. When viewed collectively with all of the other identified adverse

actions, this memo can be viewed as adverse and part of an intended paper trail of

allegations against Plaintiff for retaliatory purposes.” (Id.).

Defendant certainly had the right to request Plaintiff to respond to a WPV violence

complaint filed by a coworker, and has the right to keep the documentation about this

incident in Plaintiff’s personnel file. While Plaintiff complains that she was not previously

counseled against the conduct asserted in the WPV complaint, she fails to presents facts

from which a reasonable factfinder could conclude that the request to respond to the WPV

complaint was taken for retaliatory reasons. Accordingly, Defendant’s motion is granted to

the extent the retaliation claim is premised on the December 16, 2016 memorandum

requesting a response to a workplace violence complaint.

g. DSA Sandra O’Connor’s 2016-2017 employment evaluation of Plaintiff.

Plaintiff claims DSA Sandra O’Connor’s 2016-2017 employment evaluation of

Plaintiff, provided on November 9, 2017, (O’Connor Decl., ¶ 11), was retaliatory. (Ex. “51”,

pp. 143-43). Defendant contends, inter alia, that O’Connor was unaware of any prior

complaints filed by Plaintiff against Whitaker, and thus there could be no causal connection

between Plaintiff’s protected activity and the evaluation because O’Connor was unaware of

the protected activity.

Plaintiff has failed to offer any evidence indicating that O’Connor was aware of

9(...continued)

Dkt. 39 at 20.

28

Plaintiff’s ODM complaint against Whitaker. Plaintiff’s unsupported denial of Defendant’s

supported contention that “O’Connor did not discuss the Plaintiff in any way with her

predecessor as DSA at Mid-State, Terry Whitaker, who had retired when she began that

position,” (see Pl. Resp. to Def. L.R. 7.1 ¶ 269), is insufficient to create a question of

material fact on this issue. However, "[n]othing ‘more is necessary than general

[organizational] knowledge that the plaintiff has engaged in a protected activity." Summa v.

Hofstra Univ., 708 F.3d 115, 125–26 (2d Cir. 2013) (quoting Gordon v. N.Y.C. Bd. of Educ.,

232 F.3d 111, 116 (2d Cir. 2000)). The Second Circuit has held that complaining of

discrimination to an officer of a corporate defendant, Zann Kwan, 737 F.3d at 844, or to

high-level officials of a defendant organization, Summa, 708 F.3d at 125–26, is enough to

impute knowledge to a defendant. The facts here indicate that Plaintiff repeatedly

complained to high-ranking DOCCS officials about Whitaker’s conduct. Thus, knowledge

would be imputed to Defendant and it would not matter that O’Connor did not personally

know that Plaintiff engaged in protected activity regarding Whitaker.

Defendant also argues that “as is detailed in DSA O’Connor’s declaration and

summarized fully in . . . paragraphs [267 - 290] of [Defendant’s] Rule 7.1 statement,

O’Connor had legitimate performance-related reasons for the critiques discussed in the

evaluation.” Dkt. 38-65 at 19. Plaintiff responds:

As with the preceding year’s performance evaluation that was conducted by

Whitaker, a number of key criticisms made by DSA O’Connor in Plaintiff’s

2016-2017 evaluation reiterated and continued with contested points that DSA

Whitaker said against Plaintiff. (Def. Ex. “51” at 144-45). The evaluation also

unfairly criticized Plaintiff for issues that she could not help or have any

reasonable control over, such as being cited for missing meetings when she

was out sick. (Id. at 147). She was also dissuaded from communicating and

talking about matters with DOCCS officials when doing so in the past would

lead her to being berated at meetings and in public by Whitaker. (Id. at 153).

29

While constructive criticism can be helpful and necessary for people at times,

the nature and reception of it drastically changes when it is routine

accompanied by harassment such as what Plaintiff had been experiencing for

the past two years. (Id. at 152). When it came to discussing these points with

DSA O’Connor, Plaintiff’s account was often ignored by O’Connor who would

believe others rather than Plaintiff. (Id. at 154).

Dkt. 39 at 22-23.

The evidence indicates that Plaintiff received a “Satisfactory” evaluation for the

2016-2017 evaluation. While O’Connor recommended that Plaintiff use a mentor and

stressed “the importance of her acting professionally and keeping calm and cool when

speaking to other staff, ” (O’Connor Decl. ¶¶ 7-10), there is no indication that Plaintiff’s job

duties were altered or that she lost any job benefits.

As to Plaintiff’s claim that she was “dissuaded from communicating and talking about

matters with DOCCS officials,” she testified: “When they say, effectively communicate. I

was scared to do that. And to communicate, I didn't want to talk to be in a meeting. They

berated me in meetings. I was their joke at the department head meetings.” (Def. Ex. "51"

at 153). To the extent this conclusion is based on O’Connor’s recommendation that Plaintiff

act professionally and keep calm and cool when speaking to other staff, no reasonable

factfinder could conclude that this advice amounted to an impediment to “communicating

and talking about matters with DOCCS officials.”

As to meeting attendance, the evaluation indicates that Plaintiff “was absent from the

QI meeting that was scheduled for 8/30/17. Michele did not attend the Executive Meeting on

7/11/17. Michele was absent from the facility for two of the three Superintendent’s

Department Head Conference during this evaluation period,” and indicates that “Michele

need[s] to ensure she attends all scheduled meetings to foster working relationships with

30

other staff members. Meeting attendance is mandatory. Meetings are a tool we use for

communication of information which will help her effectively supervise her area.” (O’Connor

Decl. ¶ 7). The evaluation also indicates that “Michele is a member of both Environmental

Services Committee and Internal Controls Committee. She did miss some of the meetings

during this evaluation period. She completed her inspections for Environmental Services

timely.” (Id.) However, the evaluation also indicates that Plaintiff’s “Time and Attendance”

was satisfactory. (Id.) While Plaintiff may disagree with the job-related constructive

criticism she received from O’Connor, Plaintiff, like all employees, must accept a

supervisor’s constructive criticisms even if she does not agree with them. There is nothing

in the evaluation that raises an inference that a reasonable employee in the same situation

would be dissuaded from making or supporting claim of discrimination. Furthermore,

especially because there is no evidence indicating that O’Connor discussed the Plaintiff in

any way with Whitaker, there is noting surrounding the evaluation from which to infer that

O’Connor’s evaluation - which was “Satisfactory” overall - was motivated by discriminatory

intent. Thus, Defendant’s motion is granted to the extent the retaliation claim is premised

on O’Connor’s 2016-2017 employment evaluation of Plaintiff.

h. January 12, 2018 Formal Counseling Memorandum

Plaintiff claims that DSA O’Connor’s January 12, 2018 counseling memorandum was

retaliatory. (Ex. “1”, Dkt. 1, ¶ 39; Ex. “51”, Plaintiff Dep., pp. 308-09). Defendant again

argues that O’Connor was unaware of Plaintiff’s prior complaints, and thus no causal

connection could exist between the protected conduct and the January 12, 2018 counseling

memorandum.

The January 12, 2018 counseling memorandum concerned an incident report by

31

staff who overheard Plaintiff and Ms. Plaisime arguing loudly while in the hallway in the

facility. (See Pl. Resp. to Def. 7.1 Stat. ¶¶ 291-93). Plaintiff told O’Connor that she “did not

raise [her] voice; that the hallway echoes.” (Id. ¶ 291). O’Connor told Plaintiff “that it is not

appropriate to discuss your staff’s personal issues such as 1202’s or why someone has

called in to work.” (Id. ¶ 291). Plaintiff told O’Connor that she “did not ask RN Plaisime why

she called in and told her that [Plaintiff] did not want to know why, but that [Plaintiff] did

discuss her 1202 with her in the hallway and in the medical records room. [Plaintiff] told

[O’Connor] that [she] did not ask RN Plaisime to go to [Plaintiff’s] office to talk; that [Plaintiff

was] discussing other things when [she] brought up the 1202.” (Id.) O’Connor told Plaintiff

that “the Time and Attendance Lt. is responsible for the 1202’s and issues with other staff

absences. [Plaintiff] agreed that any future discussion with staff regarding personal matters

will be done in private. [O’Connor] told [Plaintiff] that this was not a discipline but a guidance

and advice meeting, [Plaintiff] mentioned ‘constructive criticism.’ [O’Connor] told [Plaintiff] to

be sure to keep [her] voice down even if someone else is raising hers and read section 2.7

Communications from the Employee Manual.” (Id.). Plaintiff was told she had the right to

respond in writing, that would be kept in her personnel file, but there was no disciplinary

action taken. (See id. ¶¶ 291-96). Plaintiff indicates that she submitted a rebuttal memo

“wherein she provided a detailed synopsis and explanation for the incident that took place”

which “emphasized how [Plaintiff] was acting as a concerned supervisor in dealing with an

aggressive employee, and that [Plaintiff] was being held to a more scrutinous standard

compared to other supervisors.” Dkt. 39 at 23. Plaintiff also complains that she was “again

denied a request to have Union representation attend this counseling session.” (Id.).

Plaintiff’s contention that she was not in the wrong, and that she was singled out for

32

counseling, fails to present admissible facts from which a reasonable fact finder fact could

infer that O’Connor acted for a retaliatory reason. The facts indicate that the complaint was

brought to O’Connor’s attention by other employees, and Plaintiff admitted that she was

improperly discussing matters in the hallway. Further, there is no evidence that O’Connor

discussed Plaintiff in any way with Whitaker, and there was no disciplinary action taken.

Although Plaintiff may perceive the simple counseling as retaliatory, that is insufficient.

Plaintiff, like all employees, must accept counseling when she violates policy and

regulations, even if she earlier complained about another supervisor’s treatment of her.

Defendant’s motion is granted to the extent the retaliation claim is based on O’Connor’s

January 12, 2018 counseling memorandum.

i. Other incidents of harassment.

Plaintiff also points to general allegations of being elbowed, touched and shoved by

employees she supervised, and phone calls from the facility when she was off-duty. (Ex.

“1”, Dkt. 1, ¶¶ 38-39).

With respect to being “elbowed” by Debbie Jadhon, “touched” in the left arm by Ms.

Plaisime, and “shoved” and threatened by Lyubov Savitsky, all employees she supervised,

Plaintiff “believes” these acts were retaliation, but admitted she did not know why the

employees did this or if it was retaliation. (Ex. “51”, Plaintiff Dep., pp. 299-302). Generally

speaking, allegations of co-worker harassment are, by themselves, insufficient to support a

retaliation claim See Nunez v. New York State Dep't of Corr. & Cmty. Supervision, 2015

U.S. Dist. LEXIS 100528, *40-41 (S.D.N.Y. July 31, 2015). Further, Plaintiff’s speculation

that these co-workers took the complained-of action because of her prior complaints against

Whitaker is insufficient to create a question of fact. See McPherson v. N.Y. City Dep't of

33

Educ., 457 F.3d 211, 215 (2d Cir. 2006) (speculation alone is insufficient to defeat a

summary judgment motion); see also, Wright v. Goord, 554 F.3d 255, 274 (2d Cir.

2009)(dismissing retaliation claim against a corrections officer when the only alleged basis

for retaliation was a complaint about an incident involving another corrections officer).

Defendant’s motion is granted to the extent Plaintiff’s retaliation claim is based on these co-

workers’ actions.

Plaintiff also believes that phone calls she received at home while off-duty were

retaliation. However, at deposition she admitted that all the calls were work-related, and

made to her in her capacity as NA. None were verbally abusive, and she was never

formally disciplined for not picking up calls, these calls were never mentioned in evaluations,

and no adverse action was taken in connection with these calls. (Ex. “51”, Plaintiff Dep., pp.

303-306). Defendant contends that Plaintiff cannot establish that these calls were “adverse

actions.” Plaintiff counters, however, that she would often receive calls from Whitaker and

other DOCCS officials late at night (10:30pm) on days and weekends when she would not

be on call. Plaintiff contends that whenever she would either fail to see a call or elect not to

answer, she would be berated by Whitaker at work. She further contends that Whitaker

would argue that her not answering his calls amounted to refusing his direct orders, and this

caused undue stress and anxiety for her. (Dkt. 39 at 23 citing Def. Ex. “51” at 303-306).

Although the calls were work related and Plaintiff was never disciplined for not

answering the calls, a reasonable employee in Plaintiff’s position could find that Whitaker’s

actions of berating Plaintiff for not answering the calls could dissuade that employee from

making or supporting a charge of discrimination. In this regard, Plaintiff has met her de

minimis burden of establishing an adverse action in relation to Whitaker’s response to

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Plaintiff not answering telephone calls when she was off duty.

Pretext

Defendant has presented legitimate, non-discriminatory rationales for the actions that

remain a part of Plaintiff’s retaliation claim. Defendant argues that Plaintiff cannot point to

any evidence that the Defendant’s legitimate, non-discriminatory rationales for these actions

were pretextual and that retaliatory animus was the “but-for” cause of any adverse action.

Plaintiff argues that “[c]onsidering the long-standing and ongoing pattern of adverse actions

Whitaker had helped initiate against Plaintiff . . . since her complaints against him, there is

a strong inference of retaliatory motivation against Plaintiff to continue attacking her.” (Dkt.

39 at 21).

“Once the defendant articulates a legitimate, non-retaliatory reason for the adverse

employment action, the plaintiff must present evidence sufficient to support a finding that

the defendant's purported reason for the adverse employment action was a pretext for

retaliation.” Dedjoe, 2017 WL 4326516, at *15 (citing Zann Kwann, 737 F.3d at 847). To

show that an employer's explanation is a pretext for retaliation, an “employee's admissible

evidence must show ‘that the unlawful retaliation would not have occurred in the absence of

the alleged wrongful action or actions of the employer.’” Kirkland v. Cablevision Sys., 760

F.3d 223, 225 (2d Cir. 2014) (quoting Zann Kwan, 737 F.3d at 845). “This evidence ‘must

establish that [the plaintiff's] protected activity was a but-for cause of the alleged adverse

action by the employer.’” Dedjoe, 2017 WL 4326516, at *15 (quoting Nassar, 133 S. Ct. at

2534). “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.” Zann Kwan, 737

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F.3d at 846; see Eldaghar v. City of N.Y. Dep't of Citywide Admin. Servs., No. 02-CV-9151,

2008 WL 2971467, at *12–13 (S.D.N.Y. July 31, 2008) (finding evidence of procedural

irregularities to raise "genuine issues of material fact regarding ... retaliatory motivation");

Villar v. City of New York, 135 F. Supp. 3d 105, 125 (S.D.N.Y. 2015) ("Departures from

procedural regularity can be evidence of pretext."). In addition, “a plaintiff may rely on

evidence comprising her prima facie case, including temporal proximity, together with other

evidence such as inconsistent employer explanations, to defeat summary judgment at that

stage.” Zann Kwan, 737 F.3d at 847; see Buczakowski, 2022 WL 356698, at *13

(“[T]emporal proximity can be considered as evidence of pretext, even if timing alone is not

enough to establish pretext.”)(citations omitted).

Here, Plaintiff’s evidence indicates that she submitted two (2) ODM complaints, and

a memorandum complaint against DSA Whitaker. Within just over a two (2) year span

starting from when Plaintiff filed her first ODM complaint, Plaintiff dealt with three (3) Notices

of Discipline, all of which DSA Whitaker was involved in drafting and initiating. She also

received 15 months of unpaid suspension over an 18 month span, all of which was found to

be unsupported and unwarranted by independent arbitrators. In addition, her first ever

“Unsatisfactory” work performance evaluation (2015-2016 – conducted by DSA Whitaker),

was appealed and eventually overturned.

Construing this evidence in the light most favorable to Plaintiff, a reasonable

factfinder could conclude that Defendant’s rationales for its treatment of Plaintiff was a

pretext for illegal retaliation. See Kirkland, 760 F.3d at 225 (Summary judgment should be

denied to an employer where “[t]he record contains enough evidence that, if credited, could

support a jury's finding that [the employer's] rationale for [the employee's] treatment and

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eventual termination was a pretext for illegal ... retaliation.”). Much of the challenged

employer action followed Plaintiff’s complaints about Whitaker, the suspensions were found

to be improperly imposed, many of the charges against her were deemed unfounded,

withdrawn, settled, or improperly lodged, and the overall “Unsatisfactory” performance

evaluation by Whitaker was reversed. As the Second Circuit noted in Zann Kwan, "[t]he

determination of whether retaliation was a ‘but-for' cause, rather than just a motivating

factor, is particularly poorly suited to disposition by summary judgment, because it requires

weighing of the disputed facts, rather than a determination that there is no genuine dispute

as to any material fact." 737 F.3d at 846, n. 5. Here, the evidence construed in the light

most favorable to Plaintiff reasonably indicates that Defendant, acting through Whitaker,

repeatedly sought to discharge Plaintiff without meritorious bases, improperly suspended

her without pay, provided her an unwarranted performance evaluation, and Whitaker

publically berated Plaintiff for not answering telephone calls when she was not on call. "A

jury should . . . determine whether the plaintiff has proved by a preponderance of the

evidence that she did in fact complain about discrimination and that she would not have

been [treated in these respects] if she had not complained about discrimination." Id.

V. CONCLUSION

For the reasons set forth above, Defendant’s motion for summary judgment, Dkt. 38,

is GRANTED in part and DENIED in part. The motion is granted and the retaliation claim

is DISMISSED to the extent it is premised upon the contentions that Defendant retaliated

against Plaintiff by: (1) failing to timely pay her back-pay following her return from her first

suspension; (2) the alleged conduct in Plaintiff’s 12/28/2015 ODM complaint; (3) the

conduct alleged in Dkt. 1-6 with the exceptions of being hassled when getting her non-back

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pay checks and having to fight to have her accruals properly calculated upon her return

from her first suspension; (4) the December 16, 2016 memorandum requesting a response

to a workplace violence complaint; (5) Whitaker’s October 12, 2016 counseling session and

October 13, 2016 counseling memorandum; (6) O’Connor’s 2016-2017 employment

evaluation of Plaintiff; (7) O’Connor’s January 12, 2018 counseling memorandum; and (8)

Plaintiff being elbowed, touched and shoved by employees she supervised. The motion is

denied in all other respects.

IT IS SO ORDERED.

Dated: March 8, 2022 Cong ay

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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