Streichert v. Town of Chester, New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LORETTA STREICHERT,

Plaintiff,

No. 19-CV-7133 (KMK)

v.

OPINION & ORDER

TOWN OF CHESTER, NEW YORK et al.,

Defendants.

Appearances:

Michael Howard Sussman, Esq.

Sussman & Associates

Goshen, NY

Counsel for Plaintiff

Sheel Patel, Esq.

Christina Soller, Esq.

Morris Duffy Alonso & Faley

New York, NY

Counsel for Defendants

KENNETH M. KARAS, District Judge:

Plaintiff Loretta Streichert (“Plaintiff”) brings this Action under 42 U.S.C. § 1983,

alleging that the Town of Chester (the “Town”), former Town Supervisor Alex Jamieson

(“Jamieson”), Town Supervisor Robert Valentine (“Valentine”), and Town Board Members

Cynthia Smith (“Smith”) and Ryan C. Wensley (“Wensley”; collectively, “Defendants”)

committed intentional gender discrimination in violation of the Equal Protection clause of the

Fourteenth Amendment. (Compl. ¶¶ 44–45 (Dkt. No. 1).)

Before the Court is Defendants’ Motion for Summary Judgment (the “Motion”). (See

Not. of Mot. (Dkt. No. 58).) For the reasons outlined below, the Motion is granted in part and

denied in part.

I. Background

A. Factual Background

The following facts are taken from Defendants’ Statement Pursuant to Local Rule 56.1,

(Defs.’ Rule 56.1 Statement in Supp. of Mot. for Summ. J. (“Defs.’ 56.1”) (Dkt. No. 61)),

Plaintiff’s Opposition to Defendants’ Statement Pursuant to Local Rule 56.1 (Pl.’s Rule 56.1

Statement in Opp’n to Mot. for Summ. J. (“Pl.’s 56.1”) (Dkt. No. 63)), and are recounted “in the

light most favorable to” Plaintiff, the non-movant, Wandering Dago, Inc. v. Destito, 879 F.3d 20,

30 (2d Cir. 2018) (quotation marks omitted); see also Johnson v. Kitt, No. 15-CV-7823, 2021

WL 1105438, at *1 (S.D.N.Y. Mar. 23, 2021).

Plaintiff was employed by the Town from October 2006 to June 2019. (Defs.’ 56.1 ¶ 2.)

Plaintiff was originally hired as a part-time Clerk for the Department of Parks and Recreation,

the duties for which included answering the phone, taking messages, coordinating events, and

assisting the Recreation Director with other tasks. (Id.) Plaintiff was paid on an hourly basis.

(Id.) Plaintiff’s title was eventually changed to Recreation Coordinator after she passed a civil

service exam. (Id. ¶ 3.) Plaintiff’s responsibilities in this position included:

assisting the [Town] [B]oard or [the Parks and Recreation [C]ommission in

coordinating [] recreation program[s] or specific activities, . . . assigning hours,

work locations and activities to subordinate recreation staff[;] conducting public

relation activities[;] keeping records of equipment, materials and supplies,

inspecting equipment for safety and proper maintenance[;] maintaining discipline

and enforcing regulations[;] and keeping records of recreation activities.

(Id. ¶ 10.) In 2014, Plaintiff transitioned to working full time. (Id. ¶ 6.)

Also in 2014, Walter Popailo (“Popailo”) was hired as the new Recreation Director. (Id.

¶ 4.) The job description for the position of Recreation Director included the following

responsibilities:

planning, organizing, and directing [] recreation programs and activities,

[including] planning athletic and sports activities . . . [and] scheduling and directing

playground activities, dance programs, [and] arts and crafts . . . [;] preparing news

releases and publicity[;] addressing community groups and performing other public

relation functions[;] . . . maintaining control over equipment to ensure safe

operating conditions[;] obtaining materials and supplies[;] and keeping records on

finances, recreation activities, facilities, public relations, etc.

(Id. ¶ 10.) In 2015, Popailo’s position changed to full-time Recreation Director, after he passed a

civil service exam. (Id. ¶ 8.) In 2017, Popailo was terminated from the position of Recreation

Director. (Id. ¶ 13.) According to Defendants, Popailo was told that the Town Board “was

moving in a different direction.” (Id.) Popailo was also terminated due to improper or

derogatory comments that he allegedly made during an Association of Towns meeting. (Id.;

Pl.’s 56.1 ¶ 13.)

After Popailo was terminated, the Parks and Recreation Department was split into two

separate Departments: the Parks Department and the Recreation Department. (See Defs.’ 56.1 ¶

14.) In August 2017, Patrick Taggart (“Taggart”) was selected to run the Parks Department, and

Plaintiff was selected to run the Recreation Department. (Id.) Plaintiff notes that the Town

Board “never created or approved the position of Grounds and Maintenance Supervisor and

never passed a resolution splitting the Parks & Recreation Department,” but she does not appear

to dispute that, regardless of whether it was formally approved, after Popailo’s termination,

Plaintiff directed the Recreation Department and Taggart staffed the Parks Department. (See

Pl.’s 56.1 ¶ 14.) Taggart was responsible for maintenance and repair of buildings and

equipment, and his duties included “performing carpentry, plumbing, steam fitting, and

mechanical repairs, servicing electric motors and related electrical equipment, repairing various

types of floors, and painting, repairing roofs, assisting with electrical wiring repairs, shoveling

walkways, and operating a plow, and mowing the lawns.” (Def.’s 56.1 ¶ 15.) Like Plaintiff,

Taggart was paid hourly. (Id. ¶ 16.)

After the Department split, Plaintiff oversaw the Recreation Department, though she kept

her title of Recreation Coordinator and her duties essentially remained the same, except that she

also started overseeing the building of a new senior center. (Id. ¶ 19.) In 2018, Plaintiff

requested that her title be changed to Recreation Director, and that request was granted. (Id. ¶

20.) However, she remained an hourly employee despite her requests to become a salaried

employee. (Id.)1

In 2019, the Town acquired the Sugar Loaf Performing Arts Center (“PAC”). (Id. ¶ 21.)

Both Plaintiff and Popailo applied for the position of Recreation Director for the PAC. (Id.)

Plaintiff and Popailo were both interviewed for the position, but ultimately Popailo was hired.

(Id.) According to Defendants, Popailo was chosen for the position in part due to his relevant

experience running a local comedy club for many years as well as his experience with and

willingness to do maintenance and upkeep work. (Id. ¶ 24.) On June 3, 2019, Plaintiff resigned

from her position as Recreation Director. (Id. ¶ 27.) Plaintiff stated in her resignation letter that

she “felt undermined and could not make her own decisions.” (Id.) Although Plaintiff does not

dispute the contents of her resignation letter, she asserts that she “repeatedly complained” to

Jamison about “gender bias by the Town and gender harassment by Popailo.” (Pl.’s 56.1 ¶ 27.)

1 Plaintiff purports to dispute that her title was changed, but she admits that, in the

minutes of the January 2018 Town Board reorganization meeting, her title was listed as

“Recreation Coordinator” but by January 2019, the Town Board reorganization meeting minutes

list her title as “Recreation Director.” (Pl.’s 56.1 ¶ 20.) This dispute is thus immaterial.

Plaintiff’s salary history with the Town is as follows: in 2014, she was paid $18.49/hour.

(Def.’s 56.1 ¶ 28.) In 2015, her salary increased to $23.99/hour. (Id.) In 2016, her salary

increased again to $28.66/hour. (Id.) In 2017, her salary increased to $31.07/hour, and in 2018,

it was increased again to $32.00/hour. (Id.) Finally, in 2019, when she left, Plaintiff earned

$32.96/hour. (Id.) When Plaintiff initially became a full-time employee, she received 80% of

her pay for her position, and she subsequently received 5% increases every six months until she

reached 100% of her pay after two years. (Id. ¶ 6.)

According to Defendants, Popailo initially earned $36,235.60 per year when he was first

hired in 2014. (Id. ¶ 29.) In 2016, Popailo’s salary increased to $55,000 per year. (Id.) In 2017,

he was earning $56,650.00 per year. Defendants state that, as with Plaintiff, these increases

represented a 5% increase every six months until he reached 100% pay after two years. (Id. ¶ 5.)

When he was rehired in 2019, he earned $26.37/hour. (Id.) According to Plaintiff, Popailo’s

base salary started at $41,389.00 in 2014, which represented 80% of his pay. (Pl.’s 56.1 ¶¶ 5,

29.) In January 2015, his salary increased to 85% of his pay with an additional 3% annual raise,

which was standard for employees. (See id.) In June 2015, Popailo started receiving 90% of his

pay. (Id.) By January 2016, Popailo’s base salary was increased to $55,000, which represented

100% (rather than 95%) of the pay for his position. (Id.) Plaintiff therefore essentially alleges

that Popailo received 100% of his paycheck six months early.

Plaintiff alleges two Causes of Action: (1) that Defendants engaged in intentional gender

discrimination when they “failed to title, compensate, and employ” Plaintiff as compared to

Popailo, her similarly situated male predecessor, and (2) that Defendants engaged in intentional

gender discrimination against her by selecting a “less qualified male” (i.e., Popailo) to manage

the PAC. (Compl. ¶¶ 44–45.)

B. Procedural History

Plaintiff filed her Complaint on July 31, 2019. (Dkt. No. 1.) On September 23, 2019,

after receiving an extension, (Dkt. No. 22), Defendants filed their Answer, (Dkt. No. 23.) On

September 27, 2019, the case was referred for mediation. (Dkt. No. 24.) On June 1, 2020, after

a being rescheduled several times, (see Dkt.), the mediation was held but was unsuccessful, (Dkt.

No. 27).

On July 17, 2020, Defendants filed a Motion to Disqualify Plaintiff’s counsel, Michael

Howard Sussman (“Sussman”). (Dkt. No. 31.) On August 17, 2020, Plaintiff filed her

Opposition to the Motion to Disqualify. (Dkt. No. 32.) Defendants filed their Reply on

September 9, 2020. (Dkt. No. 34.) Following an Order from the Court, (Dkt. No. 35), Plaintiff

filed supplemental materials on October 19, 2020, (Dkt. No. 37), and Defendants filed

supplemental materials on October 27, 2020, (Dkt. No. 38). On February 25, 2021, the Court

issued an Opinion and Order denying Defendants’ Motion to Disqualify. (Dkt. No. 39.)

After the Parties completed discovery, Defendants filed a pre-motion letter outlining the

grounds for their anticipated Motion for Summary Judgment on November 5, 2021. (Dkt. No.

51.) Plaintiff replied on November 9, 2021. (Dkt. No. 52.) On December 8, 2021, the Court

held a pre-motion conference, during which it adopted a briefing schedule for Defendants’

Motion. (Dkt. No. 55.) After receiving an extension, (Dkt. No. 57), Defendants filed their

Motion for Summary Judgment and accompanying papers on January 28, 2022. (Dkt. Nos. 58–

61.) Plaintiff filed her Opposition and accompanying papers on February 18, 2022. (Dkt. Nos.

62–65.) Defendants filed their Reply and accompanying papers on March 4, 2022. (Dkt. Nos.

66–67.)

II. Discussion

A. Standard of Review

Summary judgment is appropriate where the movant shows that “there is no genuine

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

R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.

2014) (same). “In determining whether summary judgment is appropriate,” a court must

“construe the facts in the light most favorable to the non-moving party and . . . resolve all

ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653

F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted); see also Borough of Upper Saddle River

v. Rockland Cnty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). “It is the

movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800

Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Red Pocket, Inc. v. Interactive

Commc’ns Int’l, Inc., No. 17-CV-5670, 2020 WL 838279, at *4 (S.D.N.Y. Feb. 20, 2020)

(same); Berry v. Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (same).

“However, when the burden of proof at trial would fall on the non[-]moving party, it

ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an

essential element of the non[-]movant’s claim,” in which case “the non[-]moving party must

come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order

to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d

114, 123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, “[t]o survive a

[summary judgment] motion . . . , [a non-movant] need[s] to create more than a ‘metaphysical’

possibility that his allegations [are] correct; [s]he need[s] to ‘come forward with specific facts

showing that there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d

Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the

pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)

(quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a

motion for summary judgment is properly supported by documents or other evidentiary

materials, the party opposing summary judgment may not merely rest on the allegations or

denials of his pleading . . . .”). Indeed, “[w]hile summary judgment must be granted with caution

in employment discrimination actions, . . . a plaintiff must prove more than conclusory

allegations of discrimination to defeat a motion for summary judgment.” Aspilaire v. Wyeth

Pharms., Inc., 612 F. Supp. 2d 289, 302 (S.D.N.Y. 2009) (quotation marks omitted); see also

Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir. 2006) (“[I]t is the law of this

Circuit that summary judgment remains available for the dismissal of discrimination claims in

cases lacking genuine issues of material fact, and may be appropriate even in the fact-intensive

context of discrimination cases.” (citation and quotation marks omitted)).

“On a motion for summary judgment, a fact is material if it might affect the outcome of

the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental

Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[t]he role

of the court is not to resolve disputed issues of fact but to assess whether there are any factual

issues to be tried.” Brod, 653 F.3d at 164 (citation omitted). Thus, a court’s goal should be “to

isolate and dispose of factually unsupported claims.” Geneva Pharms. Tech. Corp. v. Barr Labs.

Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24

(1986)).

When ruling on a motion for summary judgment, a district court should consider only

evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc.,

164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the

statements ‘must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant . . . is competent to testify on the matters stated.’” DiStiso v.

Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting FED. R. CIV. P. 56(c)(4)); see also Sellers v.

M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires a motion for

summary judgment to be supported with affidavits based on personal knowledge . . . . ”); Baity v.

Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (disregarding “statements not based on [the]

[p]laintiff’s personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5

(S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable trier of fact could

believe the witness had personal knowledge.” (citation omitted)).

As a general rule, “district courts may not weigh evidence or assess the credibility of

witnesses at the summary judgment stage.” Jeffreys v. City of New York, 426 F.3d 549, 551 (2d

Cir. 2005); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (noting that at the

summary judgment stage, the court is not to “weigh the evidence and determine the truth of the

matter”); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999) (“Assessments of

credibility and choices between conflicting versions of the events are matters for the jury, not for

the court on summary judgment.” (quotation marks omitted)). Where the evidence presents “a

question of ‘he said, she said,’” the court “cannot . . . take a side at the summary judgment

stage.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010); see also

Kassel v. City of Middletown, 272 F. Supp. 3d 516, 535 (S.D.N.Y. 2017) (noting that “it is not

the role of the [c]ourt at summary judgment to resolve [a] factual clash”); Bale v. Nastasi, 982 F.

Supp. 2d 250, 258–59 (S.D.N.Y. 2013) (stating that “where each side . . . tells a story that is at

least plausible and would allow a jury to find in its favor, it is for the jury to make the credibility

determinations and apportion liability, and not for the court”). And, even if the non-movant’s

evidence is “thin, [a non-movant’s] own sworn statement is adequate to counter summary

judgment.” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003); see also id. at 290 (holding that

“[t]he credibility of [the plaintiff’s] statements and the weight of contradictory evidence may

only be evaluated by a finder of fact”).

B. Analysis

1. Timeliness

As an initial matter, Defendants argue—and Plaintiff does not appear to dispute—that

many of the allegations that Plaintiff makes with respect to her gender discrimination claims are

untimely. (See Defs.’ Mem. of Law in Supp. of Mot. for Summ. J. (“Defs.’ Mem.”) 12–13 (Dkt.

No. 60); see also generally Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s

Opp’n”) (Dkt. No. 62).)

Claims under § 1983 for employment discrimination are subject to a three-year statute of

limitations. See Colon v. City of New York, No. 19-CV-10435, 2021 WL 4943552, at *11

(S.D.N.Y. Jan. 15, 2021), report and recommendation adopted, 2021 WL 4427169 (S.D.N.Y.

Sept. 26, 2021); Isbell v. City of New York, 316 F. Supp. 3d 571, 585 (S.D.N.Y. 2018); Bermudez

v. City of New York, 783 F. Supp. 2d 560, 573 (S.D.N.Y. 2011).2 Plaintiff filed her complaint on

2 There is an exception for “continuing violations.” Under the continuing-violation

doctrine, “if a plaintiff has experienced a continuous practice and policy of discrimination, . . .

the commencement of the statute of limitations period may be delayed until the last

discriminatory act in furtherance of it.” Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.

2001 (quotation marks and citation omitted)); see also Hampton v. Wilkie, 554 F. Supp. 3d 512,

521 (E.D.N.Y. 2021) (same). However, the Supreme Court has “identified the following

July 31, 2019. (See Dkt.) Thus, any events in Plaintiff’s Complaint that occurred prior to July

31, 2016 are untimely, and the Court will therefore consider those events only as background

evidence. See Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (in evaluating whether

summary judgment was appropriate on timely claims, the district court properly considered

earlier employment actions as “background evidence” (quotation marks omitted)). Thus, to the

extent that any of Plaintiff’s gender discrimination claims rely on events occurring prior to July

31, 2016, such as the events that Plaintiff alluded to as the reason for her resignation, (see Pl.’s

56.1 ¶ 27), those claims are dismissed as untimely. Additionally, as discussed below, Plaintiff’s

gender discrimination claim based on the theory that she was paid unequally to Popailo is also

dismissed as untimely. See infra Part II.B.2.a.i.

2. Gender Discrimination

Even if all the allegations in Plaintiff’s Complaint were timely, Defendants would still be

entitled to summary judgment on both of Plaintiff’s gender discrimination claims.

‘discrete’ employment actions which are not subject to the continuing violation exception:

termination, failure to promote, denial of transfer, or refusal to hire.” Staff v. Pall Corp., 233 F.

Supp. 2d 516, 526 (S.D.N.Y. 2002) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

112 (2002)), aff’d, 76 F. App’x 366 (2d Cir. 2003); see also Taylor v. City of New York, 207 F.

Supp. 3d 293, 301 (S.D.N.Y. 2016) (holding that “[t]he continuing violation doctrine is [] not

applicable to [the plaintiff’s] failure to hire and failure to promote claims”). “Similarly, the

Second Circuit has held that the denial of an increased pay grade does not amount to a

continuing violation.” Staff, 233 F. Supp. 2d at 526 (citing Lightfoot v. Union Carbide Corp.,

110 F.3d 898, 907 (2d Cir. 1997)); see also DeJesus v. Starr Tech. Risks Agency, Inc., No. 03-

CV-1298, 2004 WL 2181403, at *6 (S.D.N.Y. Sept. 27, 2004) (“Completed acts or discrete

incidents such as termination or resignation, job transfer, discontinuance of a job assignment,

denial of a promotion or increased pay grade, or failure to compensate adequately are not acts of

a continuing nature and, thus, cannot be the premise of a continuing violation claim.” (citation

omitted)). Because Plaintiff’s gender discrimination claims are rooted in theories of failure to

promote and denial of pay/title upgrade, the continuing violation doctrine does not apply to her

claims.

“Section 1983 employment discrimination claims asserted as equal protection violations

are evaluated under the same standards as Title VII claims.” Stoutenger v. City of Fulton, No.

21-CV-563, ___ F. Supp. 3d ___, 2022 WL 1909918, at *14 (N.D.N.Y. June 2, 2022) (quotation

marks and citation omitted). Claims of discrimination under both Title VII and § 1983 are

analyzed pursuant to the familiar three-part framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See id.

“Under this framework, at the summary judgment stage, a plaintiff must first demonstrate

a prima facie case of employment discrimination by showing that: ‘(1) she was within the

protected class; (2) she was qualified for the position; (3) she was subject to an adverse

employment action; and (4) the adverse action occurred under circumstances giving rise to an

inference of discrimination.’” Farmer v. Shake Shack Enterprises LLC, 473 F. Supp. 3d 309,

324 (S.D.N.Y. 2020) (italics and footnote omitted) (quoting Menaker v. Hofstra Univ., 935 F.3d

20, 30 (2d Cir. 2019)); see also Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)

(articulating the same elements). “The burden of establishing a prima facie case is not onerous,

and has been frequently described as minimal.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 75

(2d Cir. 2016) (quoting Norton v. Sam’s Club, 145 F.3d 114, 118 (2d Cir. 1998)). “The burden

of production then shifts to the defendant to offer a legitimate, non-discriminatory reason for the

allegedly discriminatory conduct,” and “[u]pon such a showing, the plaintiff must demonstrate

that the reasons offered by the defendant are a mere pretext for discrimination.” Farmer, 473 F.

Supp. 3d at 324 (citing Littlejohn v. City of New York, 795 F.3d 297, 307–08 (2d Cir. 2015)); see

also Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014) (“[T]he final and ultimate

burden is on the plaintiff to establish that the defendant’s reason is in fact pretext for unlawful

discrimination.” (citation omitted)).

a. Prima Facie Case

i. Failure to Upgrade Title/Pay

As noted, to establish a prima facie case of discrimination, a plaintiff must show that “(1)

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 circumstances 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).

Defendants do not appear to dispute that Plaintiff satisfies the first and second

elements—i.e., that Plaintiff, who is a woman, is a member of a protected class, and that she was

qualified for the positions of Clerk, Recreation Coordinator, and Recreation Director. (See

Defs.’ Mem. 15–20.) However, Defendants argue that Plaintiff cannot demonstrate the third and

fourth elements—i.e., that she suffered an adverse employment action and that there is evidence

giving rise to an inference of discrimination. (See id.)

Starting with the third element, “[a]n adverse employment action is a materially adverse

change in the terms and conditions of employment.” Mathirampuzha v. Potter, 548 F.3d 70, 78

(2d Cir. 2008) (emphasis and quotation marks omitted). That change must be “more disruptive

than a mere inconvenience or an alteration of job responsibilities.” Brown v. City of Syracuse,

673 F.3d 141, 150 (2d Cir. 2012) (quotation marks omitted). “Examples of materially adverse

employment actions include termination of employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a material loss of benefits, significantly diminished

material responsibilities, or other indices unique to a particular situation.” Bowen-Hooks v. City

of New York, 13 F. Supp. 3d 179, 211 (E.D.N.Y. 2014) (quoting Feingold v. New York, 366 F.3d

138, 152 (2d Cir. 2004)).

Plaintiff argues that when she assumed responsibility over the newly severed Recreation

Department in 2017, her title remained Recreation Coordinator and her requests to become a

salaried employee were denied. (See Pl.’s Opp’n 17, 19–20.) Although failures to upgrade job

titles or salaries can constitute adverse employment actions, see Martin v. MTA Bridges &

Tunnels, 610 F. Supp. 2d 238, 249 (S.D.N.Y. 2009) (holding that failure to upgrade the

plaintiff’s job title to “manager,” for purposes of the summary judgment motion, was an adverse

employment action); Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 248 (S.D.N.Y. 2001)

(concluding that a denial of raise in salary was an adverse employment action), aff’d in part,

appeal dismissed in part on other grounds, 51 F. App’x 55 (2d Cir. 2002); Magilton v. Tocco,

379 F. Supp. 2d 495, 506 (S.D.N.Y. 2005) (same), the record belies Plaintiff’s assertions. First,

Plaintiff concedes in her deposition that her request to upgrade her title from Recreation

Coordinator to Recreation Director was eventually granted:

Q: . . . [Y]ou mentioned you became the [R]ecreation ]D]irector?

A: Correct.

Q: And was that the [R]eceration [D]irector of the Recreation Department?

A: Correct.

Q: And did you request that change in title or apply for it?

A: I requested a change in title, yes.

Q: And was your request made in 2017 or 2018?

A: 2017, 2018.

Q: And why did you request that change of title?

A: Because now, I was the department head; and now, I had the new senior

center/recreation facility to manage, and I was told I was head of the

department.

Q: Who told you that?

A: Alex Jamieson. It’s in the minutes.

Q: And was your request for a change of title granted?

A: Eventually.

Q: And that was sometime in 2018?

A: Correct.

(Decl. of Cristina A. Soller in Supp. of Defs.’ Mot. for Summ. J. (“Soller Decl.”) Ex. B (“Pl.’s

Dep.”) 88:21–89:24 (Dkt. No. 59-2).) Because Plaintiff received the title upgrade that she

requested, this cannot be considered an adverse employment action. See Rosado v. City of New

York, No. 18-CV-9760, 2020 WL 2836481, at *5 (S.D.N.Y. June 1, 2020) (finding that the

plaintiff’s delay in receiving a promotion was not an adverse employment action where the

“[p]laintiff does not allege that anyone else received his desired promotion”); Karam v. County

of Rensselaer, New York, No. 13-CV-1018, 2016 WL 51252, at *10 (N.D.N.Y. Jan. 4, 2016)

(noting that “a delay in granting an employee’s benefits, standing alone, is not an adverse

employment action”); Jeffrey v. Montefiore Med. Ctr., No. 11-CV-6400, 2013 WL 5434635, at

*20 (S.D.N.Y. Sept. 27, 2013) (“[I]t is a failure to promote, not a failure to quickly promote that

makes an employment action materially adverse.” (emphases in original)).

Second, although Plaintiff’s request to become a salaried employee was denied, she

received an annual pay increase both in 2017 and in 2018. In Plaintiff’s deposition, she stated:

Q: [I]n 2017, did you receive an annual increase in your pay that year that was

approved by the town?

A: Yes.

. . .

Q: So, [in 2018], you did get the pay increase you requested in addition to the

annual pay increase?

A: No; I received no increase. I requested one; received zero increase, other

than the annual that every other person receives.

(Id. at 85:2–4, 98:11–17.) That Plaintiff was not converted to a salaried employee when she

became the Recreation Director is also tempered by the fact that Plaintiff’s duties remained the

same apart from overseeing the new senior center that was being built. (See generally id. at 86–

87.)

Even assuming that Plaintiff has established that the delay in changing her title and the

denial of her request to become a salaried employee were adverse employment actions, she

cannot establish the fourth element of a prima facie case—that the circumstances give rise to an

inference of gender discrimination. “A plaintiff may raise such an inference by showing that the

employer subjected h[er] to disparate treatment, that is, treated h[er] less favorably than a

similarly situated employee outside h[er] protected group.” Graham v. Long Island R.R., 230

F.3d 34, 39 (2d Cir. 2000); see also Summit v. Equinox Holdings, Inc., No. 20-CV-4905, 2022

WL 2872273, at *9 (S.D.N.Y. July 21, 2022) (same). “If a plaintiff relies on evidence that [s]he

was treated less favorably than employees outside of his protected group to raise an inference of

discriminatory intent, [s]he must establish that [s]he was ‘similarly situated in all material

respects’ to those employees.” Smith v. City of New York, 385 F. Supp. 3d 323, 338 (S.D.N.Y.

2019) (quoting Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)). For example,

“[a]n employee is similarly situated to other employees if they were (1) ‘subject to the same

performance evaluation and discipline standards’ and (2) ‘engaged in comparable conduct.’”

Senese v. Longwood Cent. Sch. Dist., 330 F. Supp. 3d 745, 767 (E.D.N.Y. 2018) (quoting

Graham, 230 F.3d at 40).

Here, Plaintiff fails to show that Defendants treated her less favorably than a similarly

situated male. First, Plaintiff compares herself to Popailo, (see, e.g., Pl.’s Opp’n 19–20), but

Plaintiff and Popailo were not similarly situated. This is because Popailo was Director of both

the Parks and Recreation Departments, but Plaintiff was only the Director of the Recreation

Department. (See, e.g., Defs.’ 56.1 ¶¶ 12, 14.) In his capacity as Director of the Parks and

Recreation Departments, Popailo performed tasks related to recreation programs in addition to

physical labor to upkeep the Town’s parks and facilities. (See id. ¶ 12.) These duties included:

[p]lann[ing], organiz[ing], and direct[ing] [] recreation programs and activities;

[p]lann[ing] athletic and sports activities . . . ; [s]chedul[ing] and direct[ing]

playground activities, dance programs, arts and crafts, etc.; [p]lann[ing] and

promot[ing] special activities and events; [p]repar[ing] publicity and news releases;

. . . [m]aintain[ing] control over equipment to insure safe operating conditions;

[obtaining] materials and supplies; [and] keep[ing] records on finances, recreation

activities, facilities, public relations, etc.

(Soller Decl. Ex. G (“Parks & Recreation Director Description”) (Dkt. No. 59-7)). As

Popailo described it in his deposition, “I did the basketball program, I did the parks, I

made sure that the grasses were cut, I enhanced the parks with parkland money and

fielded any kind of questions that anybody had in the Town about Parks and Rec.”

(Soller Decl. Ex. C (“Popailo Dep.”) 49:2–7 (Dkt. No. 59-3).) And as Jamison stated in

his deposition, “This job was about physical labor. It was about getting on a lawnmower

and taking care of our parks and our grounds and the little league fields.” (Soller Decl.

Ex. D (“Jamison Dep.”) 39:16–19 (Dkt. No. 59-5).) By contrast, when Plaintiff became

the Recreation Director, she retained the duties that she had already been performing as

Recreation Coordinator, except that she also started overseeing the new senior center,

which was being built. (See generally Pl.’s Dep. 86–87.) These duties included:

[a]ssist[ing] the [Town] [B]oard or [the Parks and Recreation [C]ommission in

coordinating [] recreation program[s] or specific activities; . . . [a]ssign[ing] hours,

work locations and activities to subordinate recreation staff; conduct[ing] public

relation activities . . . ; . . . [k]eeping records of equipment, materials and supplies;

inspect[ing] equipment for safety and proper maintenance; [m]aintain[ing]

discipline and enforcing regulations; [and] keep[ing] records of recreation

activities.

(Soller Decl. Ex. F (“Recreation Coordinator Description”) (Dkt. No. 59-6)). Notably,

Plaintiff’s duties did not include any of the physical labor, maintenance, or upkeep

required to run the Parks Department. Thus, because Popailo was responsible for two

departments, one of which required a substantially different skillset, and Plaintiff was

responsible for just one department the Court finds that Popailo and Plaintiff were not

substantially similar for purposes of finding an inference of discrimination. See Brown v.

Waterbury Bd. of Educ., 247 F. Supp. 3d 196, 210 (D. Conn. 2017) (“[T]o be ‘similarly

situated,’ employees must be substantially similar as to specific work duties, education,

seniority, and performance history . . . .” (ellipses in original) (quotation marks and

citation omitted)); see also Feinerman v. T-Mobile USA, No. 08-CV-3517, 2010 WL

331692, at *10 (S.D.N.Y. Jan. 28, 2010) (finding that the plaintiff and her co-worker

were not similarly situated where their “job description and responsibilities” were “not

similar in any respect”); Dorcely v. Wyandanch Union Free School Dist., 665 F. Supp. 2d

178, 201 (S.D.N.Y. 2009) (finding that the plaintiff was not similarly situated to other

employees when the “[p]laintiff [did] not set forth evidence that those employees’

responsibilities and seniority were similar”); Canales–Jacobs v. New York State Office of

Court Admin., 640 F. Supp. 2d 482, 505 (S.D.N.Y. 2009) (finding that a the plaintiff, a

Senior Court Clerk, was not similarly situated to a Senior Court Officer where the Senior

Court Officer had “significantly different duties and responsibilities” than the plaintiff);

Johnson v. County of Nassau, 480 F. Supp. 2d 581, 598 (E.D.N.Y. 2007) (finding that

plaintiff was not similarly situated to the other employees where he “failed to offer

competent evidence from which any reasonable trier of fact could infer that any of the

three individuals . . . had substantially similar job responsibilities”); Querry v. Messar, 66

F. Supp. 2d 563, 572 (S.D.N.Y. 1999) (finding that the plaintiff, a police officer, was not

similarly situated to a police sergeant because “the sergeant was of higher rank than the

plaintiff and his duties were different from plaintiff's”).

Second, Plaintiff compares herself to Taggart, but Taggart was not treated differently

than Plaintiff with respect to title or salary. After Popailo was terminated in 2017, the Parks and

Recreation Departments were split into two departments: Taggart was hired to run the

Parks/Grounds and Maintenance Department, and Plaintiff was selected to run the Recreation

Department. (Defs.’ 56.1 ¶ 14.) According to excerpts from Town meeting minutes, both

Taggart and Plaintiff were hourly employees. (See Soller Decl. Ex. L, at 60 (“Town Meeting

Minutes Excerpts”) (Dkt. No. 59-12).) And, as of January 3, 2018, neither Plaintiff nor Taggart

held the title of Director: Plaintiff’s title was Recreation Coordinator and Taggart’s title was

Building Maintenance Mechanic. (See id.) Additionally, as of January 2018, Plaintiff was paid

more than Taggart: Plaintiff earned $32/hour and Taggart earned $27.81/hour. (See id.) And as

of January 9, 2019, Plaintiff had received her new title of Recreation Director, while Taggart’s

title was still Building Maintenance Mechanic. (See id.) Thus, Plaintiff cannot show that she

was treated less favorably than Taggart.

In sum, Plaintiff fails to identify a male comparator who was treated less favorably than

she was treated. “Without this necessary evidence of similarly situated comparators, Plaintiff

cannot meet [her] burden of demonstrating circumstances that give rise to an inference of

[gender] discrimination.” Senese, 330 F. Supp. 3d at 767 (second alternation in original)

(quotation marks omitted). Because Plaintiff fails to demonstrate an inference of discrimination,

she cannot establish a prima facie case of gender discrimination based on unequal title/pay.3

ii. Failure to Promote

Plaintiff next alleges that Defendants’ decision to hire Popailo—and not Plaintiff—as

Recreation Director for the PAC was based on Plaintiff’s gender. Defendants do not appear to

dispute that Plaintiff has met the first three elements of a prima facie case. (See Defs.’ Mem. 20–

23.) That is, Defendants do not appear to dispute that Plaintiff is a member of a protected class,

3 Plaintiff also alleges that “the Town knowingly applied the 80% rule overwhelmingly to

its female employees, designating them as clerks regardless of their actual function.” (Pl.’s

Opp’n 17.) The “80% rule” appears to refer to a practice by which the Town initially paid full-

time employees 80% of their full income, and then increased their salaries by 5% every six

months, such that they received 100% of their full income after two years. (See, e.g., Defs.’ 56.1

¶ 6.)

Plaintiff specifically cites three male comparators: Popailo, Taggart, and Kristofer Grohl

(“Grohl”). With respect to Popailo, Plaintiff’s allegation is timed-barred. According to Plaintiff,

Popailo initially received 80% of his salary and received 5% increases every six months, but he

received 100% (rather than 95%) of his salary by January 2016. (See Pl.’s 56.1 ¶ 5.) Thus,

according to Plaintiff, the Town increased Popailo’s salary to 100% prematurely. (See id.)

However, as discussed above, January 2016 is outside the limitations period. See supra II.B.1.

Thus, the Court will not consider this allegation.

With respect to Grohl and Taggart, Plaintiff alleges that they received 100% of their

salaries upon their hire, rather than the 80% that Plaintiff received. (See Pl.’s 56.1 ¶¶ 1, 16.) As

for Grohl, who was a laborer in the Parks Department, (see Defs.’ 56.1 ¶ 17), Plaintiff offers no

evidence—other than an allegation in her Complaint—that he was paid 100% of his salary upon

hire, (see Pl.’s 56.1 ¶ 1 (citing Compl.)). See Henek v. CSC Holdings, LLC, 449 F. Supp. 3d 35,

38 n.2 (E.D.N.Y. 2020) (“The complaint, of course, is not evidence with which a party can

oppose a motion for summary judgment.”) (collecting cases). Additionally, Taggart and Grohl’s

duties differed significantly from Plaintiff’s, making them inappropriate comparators for this

purpose. That is, Taggart’s title was the Building Maintenance Mechanic, and his duties

included “a variety of tasks in connection with the maintenance and repair of buildings and

equipment.” (See Soller Decl. Ex. M. (“Building Maintenance Mechanic Description”) (Dkt.

No. 59-13).) And Grohl was a laborer in Taggart’s department, whose duties included

“mow[ing] the lawn and helping [Taggart].”) (See Pl.’s Dep. 107.) Even Plaintiff conceded in

her deposition that Taggart and Grohl had different titles, positions, duties, and responsibilities

than she did. (See id. at 170.) Finally, Plaintiff does not dispute that her salary was actually

higher than both Taggart and Grohl’s salaries. (See Defs.’ 56.1 ¶¶ 16, 18; see also Town

Meeting Minutes Excerpts.) These allegations therefore fail.

that she was qualified for the PAC Recreation Director position, and that she suffered an adverse

employment action when she was not chosen for that position. (See id.) The Court will

therefore limit its analysis to the fourth element, i.e., whether the Town’s decision to promote

Popailo over Plaintiff raises an inference of discrimination.

“Where, as here, the plaintiff alleges that she was not promoted to [a] position[] that

w[as] eventually filled by [an]other individual[], she may raise an inference of discriminatory

intent by showing she was similarly situated in all material respects to the individuals with whom

she seeks to compare herself. In the context of a promotion, that means comparing the

qualifications of the plaintiff with those of the person promoted.” Wheeler v. Bank of New York

Mellon, 256 F. Supp. 3d 205, 217 (N.D.N.Y. 2017) (alterations, citations, and quotation marks

omitted). Here, Defendants have demonstrated that Popailo possessed qualifications that, in the

estimation of the Town Board, made him a better fit for the PAC Recreation Director role. (See

Defs.’ 56.1 ¶ 24.) These qualifications included his prior experience running a comedy club, as

well as his experience doing maintenance and upkeep work as Director of the Parks and

Recreation Department. (See id.) As Wensley stated in his decision, “I think the presumption

was that, you know, [Popailo] was better suited to manage th[e] [PAC] facility and leverage

some of the connections that he had established [in the entertainment business].” (Soller Decl.

Ex. K (“Wensley Dep.”) 59:13–16 (Dkt. No. 59-11).) In her deposition, Smith corroborated the

fact that, during Popailo’s interview for the position, the Town Defendants asked about Popailo’s

entertainment experience and willingness to perform physical labor to ensure the upkeep of the

PAC. (See Soller Decl. Ex. J 34:17–20 (Dkt. No. 59-10).) Plaintiff, by contrast, had more

limited experience in the entertainment business, and she had no experience with physical labor

to ensure the maintenance and upkeep of the Town’s facilities and parks. (See Defs.’ 56.1 ¶ 26.)

Popailo’s resume further demonstrates that he had experiencing organizing “all comedy acts and

special events for Jester’s Comedy Club,” while Plaintiff’s resume does not mention any

experience in the entertainment business. (Compare Soller Decl. Ex. O (Dkt. No. 59-15) with

Soller Decl. Ex. R (Dkt. No. 59-18).) Where, as here, “a decision to promote one person rather

than another is reasonably attributable to an honest even though partially subjective evaluation of

qualifications, no inference of discrimination can be drawn.” Morales v. Bottling Grp., LLC, 374

F. Supp. 3d 257, 271 (W.D.N.Y. 2019) (citation and quotation marks omitted), aff’d sub nom.

Campbell v. Bottling Grp., LLC, 814 F. App’x 630 (2d Cir. 2020). Further,

[t]he point . . . is not to conduct a de novo review of [Popailo] and [Plaintiff’s]

qualifications, nor to second guess [the Town’s] assessment. . . . The question is

whether selection of a particular candidate for a position, standing alone and in light

of his or her qualifications, justifies an inference that [gender] was at least part of

the reason for the selection. In this case, it does not.

Martinez v. Davis Polk & Wardwell LLP, 208 F. Supp. 3d 480, 487 (E.D.N.Y. 2016) (citations

omitted), aff’d, 713 F. App’x 53 (2d Cir. 2017); see also id. (“Our role is to prevent unlawful

hiring practices, not to act as a ‘super personnel department’ that second guesses employers’

business judgments.” (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d

Cir. 2001))).

However, Plaintiff proffers evidence raising the inference of pretext—that is, that the

Town’s decision to hire Popailo over Plaintiff because he was more qualified for the role was

pretextual, given that Popailo had been terminated just two years before for making disturbing

racist and sexist comments. (See Pl.’s Opp’n 21.) Specifically, Jamison stated in his deposition

that, during an Association of Towns conference, Popailo posted a video on Facebook in which

he used racial slurs and curse words. (See Jamison Dep. 80:8–15.) Jamison also became aware

that Popailo also allegedly made racist and sexist comments during the conference, which other

Town Board members witnessed and reported to Jamison. (See generally id. at 82–84.) After

investigating the incident, the Town Board voted unanimously to terminate Popailo’s

employment. (See generally id. at 88–94.) In Anderson v. N.Y.C. Health & Hosps. Corp., the

plaintiff argued that the defendants’ reason for promoting another employee over the plaintiff

were pretextual because the other employee had an open disciplinary action against her and the

plaintiff did not. See No. 16-CV-1051, 2020 WL 2866960, at *18 (S.D.N.Y. Mar. 2, 2020),

report and recommendation adopted, 2020 WL 1528101 (S.D.N.Y. Mar. 31, 2020). The Court

agreed with plaintiff, finding that the “evidence of pretext is strong.” Id. The court further found

that “[b]ased on the record as a whole, and viewing the evidence in the light most favorable to

[the] [p]laintiff, it is possible a trier of fact might conclude that the [defendants’] proffered

reason for hiring [the other employee] and not [the] [p]laintiff was a pretext for discrimination.”

Id.; see also Eldred v. Consol. Freightways Corp. of Delaware, 898 F. Supp. 928, 936–37 (D.

Mass. 1995) (finding that “the only explanation for [the] defendant’s decision” to rehire another

employee over the plaintiff was “plaintiff’s gender,” where the other employee had a

“horrendous employment record”). Here, similarly, “Plaintiff has demonstrated that a reasonable

jury may find that the reasons offered by [Defendants for hiring Popailo over Plaintiff] were not

credible.” DeSio v. Singh, No. 19-CV-3954, 2021 WL 4449314, at *20 (S.D.N.Y. Sept. 28,

2021). The Court therefore finds that Plaintiff raises a genuine dispute of material fact as to

whether the Town’s decision to hire Popailo over Plaintiff was pretextual. Defendants are

therefore not entitled to summary judgment on Plaintiff’s failure to promote claim.4

4 Defendants also argue that the Individual Town Defendants are entitled to legislative

immunity, (Defs.’ Mem. 13–15), and qualified immunity, (Defs.’ Reply Mem. of Law in Supp.

of Mot. for Summ. J. (“Defs.’ Reply) 9–10 (Dkt. No. 66)). However, because the Court finds

that Defendants are entitled to summary judgment on most of Plaintiff’s gender discrimination

III. Conclusion

For the reasons discussed above, Defendants’ Motion for Summary Judgment is granted

in part and denied in part. Specifically, Defendants’ Motion is granted on all claims except for

Plaintiff’s failure to promote claim. The Clerk of Court is respectfully directed to terminate the

pending Motion. (Dkt. No. 58.)

SO ORDERED.

DATED: September 23, 2022

White Plains, New York

____________________________________

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE

claims, the Court need not consider this argument. Similarly, because the Court denied

Defendants summary judgment on Plaintiff’s failure to promote claim, the Court accordingly

finds that Defendants are not entitled to qualified immunity on that claim at this stage. See

Brown v. Off. of State Comptroller, 456 F. Supp. 3d 370, 405 (D. Conn. 2020) (“[The defendant]

is not entitled to qualified immunity on [the plaintiff’s] surviving claims.”); see also White v.

Dep’t of Corr. Servs., 814 F. Supp. 2d 374, 394 (S.D.N.Y. 2011) (“The right to be free from

gender discrimination was clearly established at the time of the incidents in question.”.)