Macri v. Herkimer County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

JEAN M. MACRI,

6:20-cv-1414

Plaintiff, (GLS/TWD)

v.

HERKIMER COUNTY,

Defendant.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFF:

James D. Hartt, ESQ., Attorney at Law JAMES D. HARTT, ESQ.

6 North Main Street

Suite 200f

Fairport, NY 14450

FOR THE DEFENDANT:

Johnson Laws, LLC APRIL J. LAWS, ESQ.

646 Plank Road, Suite 205 HANNAH HYDE HAGE, ESQ.

Clifton Park, NY 12065

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Jean M. Macri commenced this action against her employer,

defendant Herkimer County, for gender discrimination and retaliation

pursuant to Title VII of the Civil Rights Act of 1964.1 (Compl., Dkt. No. 1.)

Macri thereafter amended her complaint. (Am. Compl., Dkt. No. 6.) The

County now moves for summary judgment on all claims. (Dkt. No. 30.)

For the reasons articulated below, the County’s motion is granted.

II. Background

A. Facts2

Jean Macri has been employed with the County Department of

Highways since 2000. (Def.’s Statement of Material Facts (SMF) ¶ 3, Dkt.

No. 30, Attach. 22.) At all relevant times, Mark Nagele was the Highway

Superintendent for the County and Steve Billings was the Personnel

Officer. (Id. ¶¶ 1-2.) Macri began as a seasonal employee, but eventually

moved to a full-time position as a Heavy Equipment Operator (HEO) in

2018. (Id. ¶¶ 3, 6-10.) The HEO position required Macri to complete a six-

month probationary term, which she successfully completed. (Id. ¶¶ 13-

14.) In February 2019, Macri applied to and interviewed for a Working

Foreperson position within the Department of Highways and was awarded

that position in March 2019, based on the recommendation of Nagele. (Id.

1 See 42 U.S.C. §§ 2000e-2000e-17

2 Unless otherwise noted, the facts are not in dispute.

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¶¶ 1, 15, 20-21.) Like the HEO position, Macri was required to complete a

six-month probationary term, which began on March 25, 2019 and was to

conclude on September 25, 2019. (Id. ¶¶ 23-25.)

The skills required for the Working Foreperson position include the

“ability to understand and follow oral and written directions” and the “ability

to get along well with others.” (Id. ¶¶ 38-39 (quoting Dkt. No. 30, Attach.

10.)) In the position of Working Foreperson, Macri’s supervisors were

Nagele, James Lindholm, and Maintenance Supervisors John Rathburn

and Thomas Cotton. (Id. ¶¶ 40-43.) Additionally, in the Department of

Highways, a Maintenance Foreperson serves as the supervisor for the

Working Foreperson while on a particular job. (Id. ¶ 26; Pl.’s SMF, Dkt.

No. 36, Attach. 1 ¶ 26.)

At one point during Macri’s six-month probationary term, Brian

Farquhar served as a Maintenance Foreman and supervised Macri,

however, Macri was later removed from working with Farquhar after she

informed Nagele that she did not get along with him. (Def.’s SMF ¶¶ 27-

28.) According to Macri, Farquhar scolded her in front of other employees,

spoke to her in a belittling and demeaning manor, and did not do the same

for male employees. (Pl.’s SMF ¶ 12; Dkt. No. 30, Attach. 7 at 92:22-

3

93:11.)

In June 2019, during a meeting with Nagele, Macri expressed her

“frustrat[ion]” to Nagele about the treatment she was experiencing at the

hands of her male colleagues and that “[n]obody was listening . . . to [her].”

(Def.’s SMF ¶ 33; Dkt. No. 30 Attach. 7 at 47:14-48:18.) During that

meeting, Macri expressed that she felt she was being treated differently

but Macri did not inform Nagele that she thought the treatment was

because she was female. (Def.’s SMF ¶ 74; Dkt. No. 30 Attach. 7 at

47:14-48:18.) During her probationary period, Macri also met with Billings,

the County’s Personnel Officer, and relayed similar frustrations as she did

to Nagele but, again, did not assert that she thought any negative

treatment she received was because she was a female.3 (Def.’s SMF ¶¶

2, 75; Dkt. No. 30, Attach. 7 at 48:19-23.)

On August 16, 2019, Macri was given an “Employee Notice” for

“[u]nsatisfactory [p]erformance” and “[c]areless and [r]eckless behavior” for

allowing “a non-CDL laborer” to drive a particular truck; however, she was

3 Macri disputes this fact but her record citations do not

demonstrate that she told Nagele or Billings, or any other supervisor

within the Department of Highways, that she believed she was being

treated poorly because of her sex. (Pl.’s SMF ¶¶ 74-75.)

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never disciplined pursuant to the Notice because it was discovered that a

CDL was not required to operate the truck. (Id. ¶¶ 29-30; Dkt. No. 36,

Attach. 4, at 82:9-12; Dkt. No. 36, Attach. 31.) Macri adds that, at one

point during her probationary term, Farquhar committed the same conduct

of allowing an employee without a CDL license operate a truck, but he was

not disciplined. (Dkt. No. 36, Attach. 32 at 8.4)

On September 3, 2019, Nagele informed Macri by letter that she did

not successfully complete her six-month probationary period and she

would return to her former position as HEO. (Def’s SMF ¶ 31.) On

September 16, 2019, Macri filed a written complaint against Nagele with

Billings, complaining that, when she sought a performance review from

Nagele after her demotion, he told her he did not have one, spoke to her

“rudely” and “disrespected” her. (Id. ¶ 82; Dkt. No. 30, Attach. 16.) Nagele

did not create a performance review for Macri during her six-month

probationary term, but he did keep notes regarding issues he observed or

were brought to his attention regarding Macri’s performance. (Def.’s SMF

¶ 32.) Nagele did not make these notes known to Macri when she

4 Citations are to the pagination generated by CM/ECF, the Court’s

electronic

filing system.

5

requested a performance evaluation. (Pl.’s SMF ¶ 32.)

B. Procedural History

Macri filed a complaint with the U.S. Equal Employment Opportunity

Commission (EEOC) and the New York State Division of Human Rights

(NYSDHR). (Def.’s SMF ¶ 117.) Both EEOC and NYSDHR dismissed her

complaint. (Id. ¶¶ 126-27.) Macri thereafter commenced this action.

(Compl., Dkt. No. 1.) Shortly after, Macri amended her complaint. (Am.

Compl., Dkt. No. 6.) The County now moves for summary judgment. (Dkt.

No. 30.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 56 is well settled and

will not be repeated here. For a full discussion of the governing standard,

the court refers the parties to its prior decision in Wagner v. Swarts, 827 F.

Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489

F. App’x 500 (2d Cir. 2012).

IV. Discussion

A. Administrative Exhaustion

The County first argues that Macri failed to exhaust her

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administrative remedies with respect to her retaliation and hostile work

environment claims. (Dkt. No. 30, Attach. 23 at 7-8.) Specifically, the

County maintains that Macri’s complaint with the NYSDHR does not

reference retaliation or hostile work environment and, as such, those

claims are not properly before the court. (Id.) Macri contends that,

because the claims she asserted in her NYSDHR complaint were

“reasonably related” to her complaints of discrimination, she exhausted her

administrative remedies. (Dkt. No. 36, Attach. 2, at 14-15.)

Under Title VII, a claimant may bring suit in federal court only if she

has filed a timely complaint with the EEOC5 and obtained a right-to-sue

letter. See 42 U.S.C. § 2000e–5(e),(f). “Exhaustion of administrative

remedies through the EEOC is an essential element of the Title VII . . .

statutory scheme[] and, as such, a precondition to bringing such claims in

federal court.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d

683, 686 (2d Cir. 2001) (internal quotation marks and citations omitted).

The Second Circuit has found, however, that “claims that were not

asserted before the EEOC may be pursued in a subsequent federal court

5 A plaintiff may also satisfy the exhaustion requirement by filing a

complaint with a state agency equivalent to the EEOC. See Williams v.

New York City Cousing Auth., 458 F.3d 67, 69 (2d Cir. 2006).

7

action if they are reasonably related to those that were filed with the

agency.” Id. (internal quotation marks and citations omitted). “Reasonably

related” claims are recognized: where (1) the alleged discriminatory

conduct “would fall within the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of discrimination”; (2) the

claim is one of “retaliation by an employer against an employee for filing an

EEOC charge”; and (3) the plaintiff “alleges further incidents of

discrimination carried out in precisely the same manner alleged in the

EEOC charge.” Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003)

(internal quotation marks and citations omitted). “The central question is

whether the complaint filed with the EEOC gave that agency ‘adequate

notice to investigate’” the claim not alleged in the administrative complaint.

Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008)

(citation omitted).

With respect to Macri’s retaliation claim, Macri exhausted her

administrative remedies because her filings with the EEOC and NYSDHR

alleged discrimination and her present retaliation claim stems from her

filing those complaints. See Legnani, 274 F.3d, at 686. With respect to

her hostile work environment claims, Macri also exhausted because she

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alleged that she was “sexually harassed and intimidated” in her

administrative complaints. (Dkt. No. 36, Attach. 32 at 3.6) While Macri did

not specify her complaints with either the EEOC or NYSDHR as

complaining of a hostile work environment, Macri did mention in her

description of events that Ferguson would belittle employees and made the

“the work environment hostile.” (Dkt. No. 36, Attach. 32, at 11.) An EEOC

investigation into the charge of sexual harassment and intimidation likely

would have included an inquiry into whether Macri was subjected to a

hostile work environment, because evidence of harassing conduct is

supportive of hostile work environment claims. See Funk v. F & K Supply,

Inc., 43 F. Supp. 2d 205, 215 (N.D.N.Y. 1999) (“Although the harassment

need not take the form of sexual advances or other explicitly sexual

conduct in order to be actionable under Title VII, the plaintiff is required to

establish that the harassment complained of was based on her gender.”)

B. Discrimination

The County argues that it is entitled to summary judgment on Macri’s

6 Citations are to the pagination generated by CM/ECF, the Court’s

electronic

filing system.

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claim for sex-based discrimination because Macri has failed to

demonstrate a causal connection between her status as a female and her

demotion back to HEO, and, even if she could, she has failed to point to

evidence demonstrating that the County’s proffered reasons for her

demotion were pretextual. (Dkt. No. 30, Attach. 23 at 9-13.) Specifically,

the County argues that the “record evidence is entirely devoid of . . . proof

demonstrating that [the County] was motivated or intended to discirminate”

against Macri based on her status as a female. (Id. at 11.) Macri counters

that her demotion occurred under circumstances that give rise to an

inference of discrimination because she was the only female Foreperson,

she had never previously had any issue with performance at work, and she

did “not receive[] a single [p]erformance [e]valuation . . . prior to her

demotion,” and, thus, the County’s motion should be denied. (Dkt. No. 36,

Attach. 2 at 16.)

Claims of gender-based discrimination are analyzed under the

three-step McDonnell Douglas burden-shifting framework. See Walsh v.

N.Y.C. Hous. Auth., 828 F.3d 70, 74-75 (2d Cir. 2016) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (2010)). First, the plaintiff must

establish a prima facie case of discrimination by demonstrating that: “(1)

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she is a member of a protected class; (2) she is qualified for her position;

(3) she suffered an adverse employment action; and (4) [the adverse

action occurred under] circumstances [that] give rise to an inference of

discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.

2000) (citing McDonnell Douglas, 411 U.S. at 802).

To show that the circumstances surrounding an adverse

employment action give rise to an inference of discrimination, the plaintiff

may point to, among other things, the treatment of similarly situated

employees outside of her protected class. See McGuinness v. Lincoln

Hall, 263 F.3d. 49, 54 (2d Cir. 2001) (“A showing that the employer treated

a similarly situated employee differently is a common and especially

effective method of establishing a prima facie case of discrimination.”)

(internal quotations and citations omitted). The plaintiff is not required to

show she was treated less favorably than an identically situated male

employee; instead, she must show she was treated less favorably than a

male employee who was similarly situated in all material aspects. See

McGinness, 263 F.3d at 54 (citing Shumway v. United Parcel Serv., Inc.,

118 F.3d 60, 64 (2d Cir. 1997)). Generally, whether employees are

similarly situated is a question of fact for a jury, but the court “may grant

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summary judgment in a defendant’s favor on the basis of lack of similarity

of situation . . . where no reasonable jury could find that the persons to

whom the plaintiff compares [herself] are similarly situated.” Clubside, Inc.

v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (citations omitted).

If the plaintiff establishes a prima facie case of discrimination, the

employer must demonstrate a legitimate, non-discriminatory reason for

the adverse employment decision. See McDonnell Douglas, 411 U.S. at

802. If the employer provides such a reason, the burden then shifts back

to the employee to present evidence that her employer’s proffered reason

is a pretext for discrimination. See id. at 804-05. At this stage, the

plaintiff must “show that [her] employer’s proffered reasons . . . were not

the only reasons [for her termination] and that [discrimination] was at least

one of the motivating factors.” Holcomb v. Iona Coll., 521 F.3d 130, 138

(2d Cir. 2008) (internal quotation marks and citations omitted).

Assuming without deciding that Macri can establish a prima facie

case for discrimination, the County has provided a non-discriminatory

reason for her demotion back to HEO–her inability to get along with

supervisors and unsatisfactory work performance. (Dkt. No. 30, Attach. 7

at 67:14-68:13; Dkt. No. 30, Attach. 20 ¶¶ 11-12); see Varno v. Canfield,

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664 F. App’x 63, 65 (2d Cir. 2016) (explaining that defendants established

a legitimate justification by pointing to the fact that plaintiff was terminated

for poor performance). Macri, however, has not demonstrated that the

legitimate, non-discriminatory reasons are pretextual. While Macri

attempts to attack the veracity of the County’s proffered explanation,

specifically with affidavits of alleged witnesses to instances where she was

discriminated against and attesting to the quality of her work,7 she has not

offered any evidence to suggest Nagele had a discriminatory motive with

respect to her demotion. Morever, Nagele, who decided to demote Macri,

was the same person who recommended her for the Working Foreperson

position. See Varno, 664 F. App’x at 65 (finding that summary judgment is

appropriate where the plaintiff was hired and fired by the same supervisor,

which creates an inference against discriminatory intent, and there is not

evidence that the supervisor made any discriminatory comments).

7 The County argues that the non-party affidavits submitted by

Macri, (Dkt. No. 36, Attachs. 9, 10, 11, 12, 13, 20, 22), should be rejected

by the court because Macri failed to disclose these witnesses pursuant to

Fed. R. Civ. P. 26(a)(1)(A)(i). (Dkt. No. 39, Attach. 4 at 3-4.) While there

are grounds to reject these affidavits with respect to the present motion for

summary judgment under Fed. R. Civ. P. 37(c)(1), because these

affidavits do not contain facts that create a genuine issue of material fact,

and, thus, have no bearing on the County’s motion for summary judgmen,

the court need not resolve that issue.

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Accordingly, the court grants the County’s motion with respect to her Title

VII discrimination claim.

C. Hostile Work Environment8

The County seeks summary judgment against Macri’s sexual

harassment and hostile work environment claims because the conduct

Macri alleges “clearly fall[s] below the required showing of severity and

pervasiveness.” (Dkt. No. 30, Attach. 23 at 17.) Macri contends that,

considering “the totality of the circumstances,” “there exists a genuine

issue as to whether [she] experienced a . . . hostile work environment,” but

does not specify which material facts are in dispute. (Dkt. No. 36, Attach.

2 at 21.)

In order to establish a hostile work environment claim under Title VII,

a plaintiff must show that the “workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an abusive

8 Macri has brought claims for hostile work environment and “sexual

harassment” under Title VII and the County has argued for summary

judgment on both claims. However, because Macri appears to treat them

as one claim, (Dkt. No. 36, Attach. 2 at 19-21), the court will address both

claims under the hostile work environment framework.

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working environment.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir.

2014) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The

plaintiff must establish an objective and subjective component: “the

conduct complained of must be severe or pervasive enough that a

reasonable person would find it hostile or abusive, and the victim must

subjectively perceive the work environment to be abusive.” Id. (citing

Harris, 510 U.S. at 21-22) (other citation omitted).

When deciding “whether a plaintiff suffered a hostile work

environment, [the court] must consider the totality of the circumstances,

including the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee's work

performance.” Love v. Premier Util. Servs., LLC, 186 F. Supp. 3d 248, 253

(E.D.N.Y. 2016) (internal quotation marks and citation omitted). “The

incidents complained of must be more than episodic; they must be

sufficiently continuous and concerted in order to be deemed pervasive.”

Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (citation

omitted). Although isolated incidents typically will not establish a hostile

work environment, a single episode of harassment, if severe enough, can

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suffice. See Patterson v. County. of Onieda, N.Y., 375 F.3d 206, 227 (2d

Cir. 2004).

The court agrees with the County. Absent from the record is any

conduct or incident that was “so severe and pervasive” so as to alter the

conditions of Macri’s employment. While Macri contends that she was

subjected to a hostile work environment, she has not pointed to one

incident that supports her claim. At most, Macri was scolded by Farquhar

in front of other employees. And while her EEOC and NYSDHR

complaints allege that she was spoken to in a disrespectful manner by

male foremen and supervisors throughout her probationary term, this

conduct does not rise to the level of “so severe and pervasive” as required

by law. Notably, the record is devoid of any insult or slur directed at Macri

or any indication that such “hostile” conditions were a result of her gender.

See Russo v. N.Y. Presbyterian Hosp., 972 F. Supp. 2d 429, 449-50

(E.D.N.Y. 2013); Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 519

(S.D.N.Y. 2010) (“[A]lthough [plaintiff]’s work environment may have been

unpleasant—even ‘hostile’ in ordinary parlance—his discrimination claim

must be dismissed because the circumstances do not permit an inference

that ‘[ ]he was singled out for mistreatment because of [his] sex.’” (citations

16

omitted)). Accordingly, the County is entitled to summary judgment on this

claim.

D. Retaliation

The County argues that it is entitled to summary judgment on Macri’s

relation claim because, among other things, Macri has failed to

demonstrate that she engaged in protected activity and, even if she did,

that her engagement in any protected activity was the but-for cause of her

demotion. (Dkt. No. 30, Attach. 23 at 13-17.) Macri maintains that, while

she “did not invoke protected status by not complaining specifically about

gender discrimination, [she] has shown that her [c]omplaints” to Nagele

and Billings “were worded in such a was as to clearly sound in a [g]ender

[d]iscrimination complaint.” (Dkt. No. 36, Attach 2. at 18.) Additionally,

Macri contends that, because she complained about unfair treatment to her

union representative shortly before she received the Employee Notice in

August 2019, that she has satisfied her prima facie case for retaliation. (Id.

at 19.)

Title VII retaliation claims are evaluated under the same three-step

burden shifting analysis as Title VII discrimination claims. See Hicks v.

Baines, 593 F.3d 159, 164 (2d Cir. 2010) (citations omitted); see also

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McDonnell Douglas, 411 U.S. at 802-05. First, the plaintiff must establish

a prima facie case of retaliation by showing that “(1) she was engaged in

protected activity; (2) the employer was aware of that activity; (3) [she]

suffered a materially adverse action; and (4) there was a causal

connection between the protected activity and that adverse action.” Lore

v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). If the plaintiff

establishes a prima facie case, the burden then shifts to the employer to

articulate a non-retaliatory rationale for the adverse action. See Cox v.

Onondaga Cnty. Sheriff’s Dept., 760 F.3d 139, 145 (2d Cir. 2014). “Once

the employer has done so, the employee may prevail by demonstrating

that the stated rationale is mere pretext” for retaliation. Id. To demonstrate

pretext, the employee must show that retaliation was a “but for” cause of

the adverse employment action. See Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 346-47, 360 (2013). In other words, the plaintiff

must show “that the adverse action would not have occurred in the

absence of the retaliatory motive.” Kwan v. Andalex Grp. LLC, 737 F.3d

834, 846 (2d Cir. 2013).

Assuming, without deciding, that Macri has satisfied her burden with

respect to her prima facie case, Macri cannot rebut the County’s proffered

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non-retaliatory reasons for her demotion. As previously discussed, Macri

was terminated on the grounds of, among other things, poor performance

and inability to get along with others, which is a legitimate justification for

her demotion. See supra Part IV.B; Varno, 664 F. App’x. at 65. Here,

Macri has not offered any evidence demonstrating pretext, let alone that

retaliation was the but-for cause of her demotion. While Macri may

disagree with the County’s proffered reasons or believe her demotion was

unfair, absent evidence of a retaliatory animus on behalf of the County,

Macri has not demonstrated that the County’s reasons were pretext.

Delaney v. Bank of Am. Corp., 908 F.Supp.2d 498, 518 (S.D.N.Y.2012)

(“The employer could terminate the plaintiff for a good reason, a bad

reason, or no reason at all, so long as it was not a [retaliatory] reason . . . .

Moreover, it is not for the Court to second-guess the business judgment for

a termination, so long as there is no evidence that the reason for the

decision was a pretext for [retaliation].”) (quoting Slatky v. Healthfirst, Inc.,

No. 02–CV–5182, 2003 WL 22705123, at *5 (S.D.N.Y. Nov. 17, 2003)).

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that the County’s motion for summary judgment (Dkt.

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No. 30) is GRANTED; and it is further

ORDERED that the amended complaint (Dkt. No. 6) is DISMISSED;

and it is further

ORDERED that the Clerk is directed to close this case; and it is

further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

September 27, 2023 2 |.

Albany, New York ;

5. District Judge

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