Green v. General Motors

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

BARBARA GREEN,

Plaintiff,

20-CV-1797-LJV-HKS

v. DECISION & ORDER

GENERAL MOTORS,

Defendant.

On December 7, 2020, the plaintiff, Barbara Green, commenced this action

against General Motors. Docket Item 1. Green is employed at the General Motors

facility in Tonawanda, New York, and she alleges that General Motors unlawfully

retaliated against her for filing a charge of discrimination with the United States Equal

Employment Opportunity Commission (“EEOC”). Id. She brings retaliation claims

under both Title VII of the Civil Rights Act of 1964 and the New York State Human

Rights Law (“NYSHRL”). Id. at ¶¶ 34-48.

On April 18, 2022, General Motors moved for summary judgment. Docket Item

20. Green responded to that motion about three months later, Docket Item 25, and on

July 29, 2022, General Motors replied, Docket Item 26.

For the reasons that follow, General Motors’ motion for summary judgment is

granted on Green’s Title VII retaliation claim. But this Court declines to exercise

supplemental jurisdiction over her NYSHRL retaliation claim and instead dismisses that

claim without prejudice.

FACTUAL BACKGROUND1

Green has worked at General Motors since 1978. Docket Item 20-2 at ¶ 1;

Docket Item 25-9 at ¶ 1. She originally worked at a General Motors facility in Michigan

before transferring to its Tonawanda facility in 2018. Docket Item 20-2 at ¶¶ 2-3; Docket

Item 25-9 at ¶¶ 2-3. Green currently is employed as a Machine Repair Journeywoman

at the Tonawanda facility. Docket Item 20-2 at ¶ 4; Docket Item 25-9 at ¶ 4.

In September 2019, Green was disciplined for using profanity in an exchange

with a coworker. Docket Item 20-2 at ¶¶ 16-20; Docket Item 25-9 at ¶¶ 16-20. She was

asked to leave the facility and ultimately was suspended for a little more than a week.

Docket Item 20-2 at ¶¶ 19-20; Docket Item 25-9 at ¶¶ 19-20. Green then filed a

grievance with her union alleging that she had not been adequately warned about the

prohibition on workplace profanity. Docket Item 20-2 at ¶ 20; Docket Item 25-9 at ¶ 20;

Docket Item 20-3 at 303 (grievance charging that “[a]busive language was not

specifically identified in the harassment policy”). At her deposition, Green did not recall

the outcome of that grievance. Docket Item 20-3 at 27.

1 Much of Green’s response to General Motors’ statement of material facts

consists of factual assertions that are not supported by citations to the record. See,

e.g., Docket Item 25-9 at 6-10. Federal Rule of Civil Procedure 56(c)(1) requires that a

“party asserting that a fact cannot be or is genuinely disputed must support the

assertion by[] citing to particular parts of materials in the record” or “showing that the

materials cited do not establish the absence or presence of a genuine dispute, or that

an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ.

P. 56(c)(1)(A)-(B). This Court cites the parties’ statements of material fact, Docket

Items 20-2 and 25-9, when those facts are supported by the record. Because on a

motion for summary judgment, a court “construe[s] the evidence in the light most

favorable to the non-moving party and draw[s] all reasonable inferences in [her] favor,”

ING Bank N.V. v. M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018),

this Court views the evidence in the light most favorable to Green.

In March 2020, Green filed a charge of discrimination with the EEOC, claiming

that General Motors did not provide her with necessary training opportunities. Docket

Item 20-2 at ¶ 23; Docket Item 25-9 at ¶ 23; Docket Item 25-5. More specifically,

Green, who is Black, alleged that General Motors failed to adequately train her when

she started at the Tonawanda facility but gave white employees adequate training when

they began working there. See Docket Item 25-5 at 4 (EEOC inquiry). When Green

filed this case, that EEOC charge still was pending. See Docket Item 1 at ¶ 7. At her

deposition in this case, Green testified that she continued to be assigned jobs “for which

she had no training,” including two tasks in October 2020—that is, after she filed the

March 2020 EEOC charge of discrimination. Docket Item 20-3 at 52.

In August 2020, Green received a second disciplinary suspension. Docket Item

20-2 at ¶ 27; Docket Item 25-9 at ¶ 27. This time, Green was suspended for allegedly

violating facility safety rules and directing profanity at a coworker. See Docket Item 20-

2 at ¶ 27; Docket Item 25-9 at ¶ 27.

Green’s second suspension resulted from an incident on August 26, 2020, when

she was sitting on a “yellow guard rail” before a safety meeting. Docket Item 20-2 at ¶

24; Docket Item 25-9 at ¶ 24; Docket Item 20-3 at 26. Green says that she had sat on

that rail before; in fact, she says that she sat there without incident on the two days

before that meeting. Docket Item 20-3 at 26. But that day, the Tonawanda facility

manager approached her and asked her to “get down off the rail” because he did not

“want to see [her] fall.” Docket Item 20-2 at ¶¶ 24-25; Docket Item 25-9 at ¶¶ 24-25;

Docket Item 20-3 at 26. Green responded that she was “not going to fall,” and the two

then argued about whether Green needed to get off the rail. Docket Item 20-2 at ¶ 25;

Docket Item 25-9 at ¶ 25; Docket Item 20-3 at 26. Green became “very agitated” and

“upset” over the interaction. Docket Item 20-2 at ¶ 25; Docket Item 25-9 at ¶ 25; Docket

Item 20-3 at 26. She eventually got down from the rail and told the facility manager that

he did not “have to worry about [Green] coming to these meetings anymore ever.”

Docket Item 20-2 at ¶ 25; Docket Item 25-9 at ¶ 25; Docket Item 20-3 at 26.

The parties dispute whether this was all Green said to the facility manager.

According to the defendants, Green also said “fuck you,” Docket Item 20-2 at ¶ 26;

Green, on the other hand, testified at her deposition that this “was a lie,” and that she

has “never in [her] life said that.”2 Docket Item 20-3 at 25-26; Docket Item 25-9 at ¶ 26.

Green was suspended for a little more than two weeks for sitting on the rail and

purportedly swearing at the facility manager. Docket Item 20-2 at ¶ 27; Docket Item 25-

9 at ¶ 27. The “notice of disciplinary action” outlining the suspension cited Green with

violating two “shop rules”: “abusive language to any employee” and “disregard of safety

rules.” Docket Item 20-3 at 325. On September 20, 2020, Green filed a second charge

of discrimination with the EEOC, this time alleging that her suspension was unlawful

retaliation for filing the March 2020 charge of discrimination. Docket Item 20-2 at ¶ 30;

Docket Item 25-9 at ¶ 30.

Green also says that she has experienced a number of other workplace issues at

the Tonawanda facility. For example, she testified at her deposition that someone once

took her “Essential Water” from a workplace refrigerator. See Docket Item 20-3 at 48.

Green also testified that she was “missing tools” from her workspace “ever since [she]

2 At her deposition, Green recalled that she was accused of telling the facility

manager to “fuck off.” Docket Item 20-3 at 25.

got” to the Tonawanda facility, id. at 30, and that other items, including bottles of lotion,

fans, and an empty Best Buy box, were taken from her work area, id. at 41, 48-49.

Finally, Green says that she was removed from an internal General Motors “job sign-up

board,” which meant that she received less-favorable work assignments. Docket Item

20-2 at ¶¶ 14, 32; Docket Item 25-9 at ¶¶ 14, 32.

LEGAL PRINCIPLES

A court “shall grant summary judgment if 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). The movant—that is, the party seeking summary

judgment—has the burden of demonstrating that there is no disputed material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant may satisfy this

burden by relying on evidence in the record, “including depositions, documents, . . .

[and] affidavits,” Fed. R. Civ. P. 56(c)(1)(A), or by “point[ing] to an absence of evidence

to support an essential element of the nonmoving party’s claim,” Goenaga v. March of

Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at

322-23); see Fed. R. Civ. P. 56(c)(1)(B). Once the movant has satisfied its initial

burden, “the nonmoving party must come forward with specific facts” showing that there

is a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted). If the

nonmovant fails to do so, the court may grant summary judgment. See Celotex, 477

U.S. at 322-23.

A material fact is one that “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is a

genuine dispute of material fact “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. “[T]he court must view the evidence in the

record in the light most favorable to the non-moving party” and must draw “all

reasonable inferences in that party’s favor.” Abdu-Brisson v. Delta Air Lines, Inc., 239

F.3d 456, 466 (2d Cir. 2001). But “conclusory statements, conjecture, or speculation by

the party resisting the motion will not defeat summary judgment.” Kulak v. City of New

York, 88 F.3d 63, 71 (2d Cir. 1996).

DISCUSSION

I. TITLE VII CLAIM

Title VII prohibits an employer from “discriminat[ing] against any of [its]

employees . . . because [the employee] has opposed any practice made an unlawful

employment practice by” Title VII or “because [she] has made a charge, testified,

assisted, or participated in any manner in” a Title VII “investigation, proceeding, or

hearing.” 42 U.S.C. § 2000e-3(a). “Retaliation claims under Title VII are evaluated

under [the] three-step burden shifting analysis” of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d

Cir. 2005).

At the first step, “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.” Hicks v. Baines,

593 F.3d 159, 164 (2d Cir. 2010) (citations and internal quotation marks 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.

(quoting Jute, 420 F.3d at 173).

“Once the plaintiff has established a prima facie showing of retaliation, the

burden shifts to the employer to articulate some legitimate, non-retaliatory reason for

the employment action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir.

2013) (italicization added). If the employer “articulate[s] a non-retaliatory reason for the

employment action, the presumption of retaliation arising from the [plaintiff’s]

establishment of the prima facie case drops from the picture,” and the plaintiff then must

establish that the “non-retaliatory reason is a mere pretext for retaliation.” Id.

(italicization added). “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, non[-]retaliatory

reasons for its action.” Id. at 846.

General Motors does not dispute that Green has satisfied the first two elements

of a prima facie retaliation case: she engaged in protected activity by filing the March

2020 charge of discrimination with the EEOC, and General Motors knew about that

activity.3 See Docket Item 20-1 at 10. But General Motors says that Green’s claim fails

3 Green also suggests that her union grievance challenging her September 2019

disciplinary suspension is protected activity under Title VII. See Docket Item 25 at 13

(generally alluding to “many complaints and . . . union grievances” before identifying

“one grievance in 2019 regarding the allegation of [Green] using abusive language”).

“Filing a union grievance regarding discriminatory treatment is a protected activity,” but

“union grievances that do not complain of discrimination do not constitute a protected

activity.” Small v. N.Y.C. Dep’t of Educ., 2023 WL 112546, at *11 (S.D.N.Y. Jan. 5,

2023). Green does not say that her 2019 grievance challenged discriminatory

treatment, see Docket Item 25 at 13; in fact, the grievance, which Green attached to her

because she cannot establish a causal connection between her March 2020 EEOC

charge and her September 2019 and August 2020 disciplinary suspensions—that is, the

only adverse employment actions that General Motors says might give rise to a

retaliation claim under Title VII. See id. at 13-15.

For the reasons that follow, this Court assumes that Green’s disciplinary

suspensions and her inadequate training are adverse employment actions. But only her

August 2020 disciplinary suspension can possibly be linked to any protected activity,

and that link is tenuous at best. And regardless, because Green has failed to show that

her suspension was pretext for retaliation, General Motors is entitled to summary

judgment on Green’s Title VII retaliation claim.

A. Adverse Employment Action

For an adverse employment action to rise to the level of actionable retaliation, a

plaintiff “must show that a reasonable employee would have found the challenged

action materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Burlington N.

& Sante Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal quotation

marks omitted). Title VII therefore does not reach all “petty slights or minor annoyances

that often take place at work.” Id. Instead, Title VII “prohibit[s] employer actions that

opposition papers, challenged her “excessive and unjust” discipline on the grounds that

“[a]busive language was not specifically identified in the harassment policy.” Docket

Item 25-3 at 2. So Green’s union grievance challenging her September 2019

disciplinary suspension is not protected activity for purposes of her Title VII retaliation

claim.

are likely to deter victims of discrimination from complaining to the EEOC, the courts,

and their employers.” Id. (citation and internal quotation marks omitted).

Although Green’s Title VII retaliation claim explicitly challenges only her August

2020 disciplinary suspension, see Docket Item 1 at ¶¶ 34-41, her complaint and

opposition papers detail several other workplace issues at General Motors’ Tonawanda

facility. For example, she alleges that “[s]omeone stole [her] Essential [W]ater out of the

skilled trades refrigerator,” that “GM management would throw her personal boxes

away,” and that she “often found tools missing and . . . fans missing” from her work

area. See id. at ¶¶ 14-18; see also Docket Item 25 at 13. It is not entirely clear whether

Green now seeks to pursue a retaliation claim beyond the scope of what she alleged in

her complaint or whether she alludes to those incidents as general illustrations of her

problems at the Tonawanda facility. Regardless, the sort of sporadic, everyday

workplace activity that Green details—including the disappearance of her water and

other items from her workplace area, see Docket Item 25 at 4-5—are the sort of “minor

annoyances that often take place at work” and cannot support a retaliation claim.4 See

4 Green also cannot causally link any of those allegations to protected activity.

For example, because Green has not said when her Essential Water was taken from

the refrigerator or when her troubleshooting light or her paper towels “came up missing,”

see Docket Item 1 at ¶¶ 15-18; Docket Item 25-9 at ¶¶ 12, 13, she has not connected

those events to any protected activity. Likewise, Green filed an internal complaint in

February 2021 claiming that she was removed from General Motors’ internal work

assignment system, but it is not clear when that removal occurred. Docket Item 20-5 at

¶ 3; Docket Item 25-9 at ¶ 32. If that removal occurred around February 2021, it is too

distant from any protected activity to support an inference of causation. See, e.g.,

Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 687 (S.D.N.Y. 2012) (finding Title

VII retaliation claim insufficient because an “11 month gap is too long to allow for an

inference of causation without any other evidence”). Similarly, Green’s allegations

about fans removed from her workplace cannot be causally linked to any protected

activity because those incidents occurred more than a year after Green’s March 2020

EEOC charge of discrimination. See Docket Item 20-3 at 41 (Green’s testifying that her

Burlington N., 548 U.S. at 68; see also Avillan v. Donahoe, 483 F. App’x 637, 638 (2d

Cir. 2012) (summary order) (“Appellant complains only of minor workplace

inconveniences, such as being replaced as acting group leader, having his custodial

route reassigned and having personal items removed from a locker. These actions are

not ‘materially adverse.’”).

By contrast, as General Motors concedes, Green’s two disciplinary suspensions

are the sort of materially adverse employment action that could provide the basis for an

actionable Title VII claim. See Docket Item 20-1 at 13. This Court assumes that

Green’s allegedly inadequate training, which she says “placed her in working conditions

that were unsafe,” Docket Item 25 at 15, also could be an adverse employment action.

But for the reasons that follow, only the August 2020 suspension might possibly be

causally connected to protected activity.

B. Causation

For a Title VII retaliation claim, the plaintiff “must establish that his or her

protected activity was a but-for cause of the alleged adverse action by the employer.”

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). “[B]ut-for causation

does not 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.” Zann Kwan, 737 F.3d at 846 (internal quotation marks omitted). And “[a]

plaintiff can indirectly establish a causal connection to support a discrimination or

retaliation claim by showing that the protected activity was closely followed in time by

fans were moved after she returned from leave in July 2021); see also Davis-Bell, 851

F. Supp. 2d at 687.

the adverse employment action.”5 Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,

110 (2d Cir. 2010).

Green’s September 2019 suspension and her allegedly inadequate training

cannot be causally linked to her March 2020 EEOC charge of discrimination. The

September 2019 suspension occurred long before her March 2020 EEOC charge of

discrimination, and “[i]t is axiomatic that no [causal] relationship can be found to exist

where the alleged adverse employment action began and ended prior to the

commencement of any protected activity.” Dansler-Hill v. Rochester Institute of Tech.,

764 F. Supp. 2d 577, 582 (W.D.N.Y. 2011) (emphasis in original). And the same is true

about her claim of inadequate training: Green says that she never was given adequate

training at the Tonawanda facility—in other words, she claims that her training was

deficient from the start.6 See Docket Item 1 at ¶ 14 (“Green had issues with her

5 Green relies primarily on the temporal proximity between her March 2020

EEOC discrimination charge and her August 2020 disciplinary suspension to support

her prima facie case of retaliation. See, e.g., Docket Item 25 at 12-13 (noting that “the

period at issue” between the protected activity and the adverse action “was five

months”). She also alleges that an unidentified white male purportedly was not

disciplined for sitting on the rail, although she relies on that allegation to suggest only

that her suspension was pretext for retaliation. See id. at 15. A plaintiff can indirectly

establish a causal connection between protected activity and adverse employment

actions not only by relying on temporal proximity, but also “through other evidence such

as disparate treatment of fellow employees who engaged in similar conduct.” DeCintio

v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987). So if that unidentified

male was not disciplined for engaging in the same conduct as Green, that could both

demonstrate pretext and establish a prima facie case of retaliation. But for the reasons

stated below, Green has not provided anything other than speculation that this

unidentified male was not disciplined for the same conduct. So this Court instead

focuses on the temporal proximity between Green’s protected activity and her

disciplinary suspension.

6 Even if this Court considered only Green’s allegation that she was “assigned to

jobs for which she had no training” in October 2020, Docket Item 1 at ¶ 33, the seven-

month gap between Green’s protected activity and her job assignment dispels any

inference of causation. See Dayes v. Pace Univ., 2 F. App’x 204, 208 (2d Cir. 2001)

coworkers at the Tonawanda facility from the start when she was denied necessary re-

training . . . .”); Docket Item 20-3 at 47-48 (Green’s testifying about those allegations at

her deposition). In fact, that allegedly inadequate training was the basis of Green’s

March 2020 EEOC discrimination charge. See Docket Item 20-2 at ¶ 23; Docket Item

25-9 at ¶ 23.

Moreover, viewing the inadequate training as adverse action that continued over

time does not salvage Green’s retaliation claim. “Where timing is the only basis for a

claim of retaliation, and gradual adverse job actions began well before the plaintiff had

ever engaged in any protected activity, an inference of retaliation does not arise.”

Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). Because

Green provides no link between her 2019 suspension or her inadequate training and her

2020 EEOC charge other than temporal proximity, and because those adverse actions

either entirely or largely preceded that protected activity, neither action is causally linked

to her 2020 EEOC charge.

Whether Green’s August 2020 suspension can be causally linked to her March

2020 EEOC charge is a closer question. While the Second Circuit “has not drawn a

bright line defining[] . . . the outer limits beyond which a temporal relationship is too

attenuated to establish causation, [it has] previously held that five months is not too long

to find the causal relationship.” Gorzynski, 596 F.3d at 110 (citing Gorman-Bakos v.

Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 555 (2d Cir. 2001)). At

the same time, district courts in this Circuit have routinely dismissed retaliation claims

(summary order) (affirming grant of summary judgment on a retaliation claim, citing

seven-month gap between protected activity and adverse employment action).

when the causation element hinged solely on shorter time gaps. See, e.g., Smith v.

N.Y. & Presbyterian Hosp., 440 F. Supp. 3d 303, 343 (S.D.N.Y. 2020) (collecting cases

dismissing retaliation claims on the grounds that a gap of about four months is

insufficient to establish causation). So the fact that Green’s August 2020 disciplinary

suspension came five months after her EEOC charge is likely not alone sufficient to

establish a prima facie retaliation case. But even if five months were sufficient, Green’s

claim would fail at the next step of the McDonnell-Douglas analysis because she has

not shown that General Motors’ non-retaliatory reason for her suspension was in any

way pretextual.

C. Pretext

Assuming that Green has established her prima facie retaliation case, the burden

shifts to General Motors to provide “some legitimate, non-retaliatory reason” for her

suspension. See Zann Kwan, 737 F.3d at 845. If General Motors makes that showing,

the burden reverts to Green to show that the non-retaliatory reason is pretextual. See

id. At that point, Green cannot rely solely on the time between her EEOC discrimination

charge and her suspension to show that General Motors’ proffered reason is pretext for

unlawful retaliation. See id. at 847 (“Temporal proximity alone is insufficient to defeat

summary judgment at the pretext stage.”). But she “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 th[is] stage.” Id.

(italicization added).

General Motors says that Green was suspended in August 2020 for swearing at

the Tonawanda facility manager and for violating safety rules by sitting on a railing.

Docket Item 20-2 at ¶ 27. Green denies that she ever swore at the manager.7 Docket

Item 25-9 at ¶ 27. She concedes that she sat on the railing, id., but she claims that “a

Caucasian male [employee] sat on a rail in the same area” and was not disciplined.8

Docket Item 1 at ¶ 32; Docket Item 25-9 at ¶¶ 24-25.

Green has not offered evidence sufficient to support her assertion that another

employee was not suspended under similar circumstances, however. At her deposition,

Green testified that an unidentified male sat on the rail in front of other unidentified

coworkers and supervisors on two occasions about a month after her suspension.

Docket Item 20-3 at 51-52. Green did not recall whether the facility manager was there,

and she did not report the incident to anyone who worked at the Tonawanda facility. Id.

7 Because General Motors has offered a separate, independent reason for

Green’s disciplinary suspension—her violation of facility safety rules—the factual

dispute about whether Green swore at the facility manager does not preclude summary

judgment on the issue of pretext. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 148 (2000) (“[A]n employer would be entitled to judgment as a matter of law if

the record conclusively revealed some other, nondiscriminatory reason for the

employer’s decision . . . .”).

8 In her opposition to General Motors’ statement of material facts, Green also

says that she was informed that sitting on the rail was not a safety violation, that “there

is no specific posted or written safety rule” prohibiting sitting on the rail, and that a

second employee received a lighter suspension for violating safety rules. Docket Item

25-9 at ¶¶ 25, 27. Green supports only the last contention with a citation to the record,

and it is not clear to this Court how that citation supports her claim. See id. at ¶ 27

(citing to line four of page 100 of Green’s deposition); Docket Item 20-3 at 27 (line four

of page 100 of Green’s deposition, where Green testified that she “filed a second

charge [with the EEOC]” but did not elaborate on what that charge entailed). Without

further support for the facts in Green’s opposition, this Court cannot credit them on a

motion for summary judgment. See supra at 2 n.1. Similarly, while Green contends

that sitting on the rail was not in fact a violation of facility safety rules, she cites only a

section of her deposition where she generally described the incident to support that

assertion. See Docket Item 25-9 at ¶ 24.

at 52. But Green recalled that, “as far as [she] could tell,” no one asked the unidentified

coworker to get off the rail. Id.

So Green offers only her own surmise that a coworker—who Green has not

identified through any discovery in this case—was not disciplined for the same conduct.

She does not identify who saw the coworker sitting there, nor does she suggest that

anyone with the authority to suspend the coworker knew about the violation. See id.

(recalling that she “didn’t see” the plant manager on those two occasions). So her

assertion amounts to nothing more than conjecture or speculation, and “conjecture[] or

speculation by the party resisting the motion will not defeat summary judgment.” See

Kulak, 88 F.3d at 71. Stated another way, without further information about this

unidentified coworker and who knew about the alleged violation, this Court cannot

conclude that Green has raised a factual dispute about whether any purported

difference in discipline demonstrates that her violation of the safety rules was pretext for

retaliation. See, e.g., Alvarado v. Nordstrom, Inc., 685 F. App’x 4, 7 (2d Cir. 2017)

(summary order) (“[The retaliation] claim boils down to a question of whether [the

plaintiff] and [the coworker] are sufficiently similar in their history . . . that [the plaintiff’s]

treatment can be attributed to [protected activity] (in which [the plaintiff] and [the

coworker] differ) rather than attributed to his behavior (in which [the plaintiff] and [the

coworker[] . . . do not differ).”).

In sum, it is Green’s burden to show that General Motors’ proffered non-

retaliatory reason for her August 2020 disciplinary suspension is “a mere pretext for

retaliation.” Zann Kwan, 737 F.3d at 845. But Green has only offered her own say so

that a coworker was not disciplined for engaging in similar conduct. And Green has not

otherwise pointed to any “weaknesses, implausibilities, inconsistencies, or

contradictions” that would show that her August 2020 disciplinary suspension was the

result of unlawful retaliation.9 See id. at 846. General Motors’ motion for summary

judgment therefore is granted with respect to Green’s Title VII retaliation claim.

II. NYSHRL CLAIM

For the reasons stated above, General Motors is entitled to summary judgment

on Green’s Title VII retaliation claim. Until recently, that likely would mark the end of the

road for her NYSHRL retaliation claim as well. See, e.g., Kelly v. Howard I. Shapiro &

Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (“The standards for

evaluating hostile work environment and retaliation claims are identical under Title VII

and the NYSHRL.”); but see Smith, 440 F. Supp. 3d at 340 n.22 (noting some

uncertainty about whether NYSHRL retaliation claims are governed by the but-for

causation standard after Nassar).

In 2019, however, the New York State Legislature amended the NYSHRL to

provide that “[t]he provisions of [the NYSHRL] shall be construed liberally for the

accomplishment of the remedial purposes thereof, regardless of whether federal civil

rights laws[] . . . have been so construed.” N.Y. Exec. Law § 300; see Arazi v. Cohen

Brothers Realty Corp., 2022 WL 912940, at *7 (S.D.N.Y. Mar. 2022). After that

amendment, district courts in this Circuit have analyzed retaliation claims brought under

9 As noted above, see supra n.8, Green’s other attempts to undermine General

Motors’ explanation for the disciplinary suspension are unsupported by the record. And

while Green says that she sat on the rail for two days without incident before she was

suspended, she does not say that she encountered the facility manager on those two

days or otherwise explain how that might show that her disciplinary suspension was the

result of unlawful retaliation for filing the March 2020 charge of discrimination.

the NYSHRL using the broader standards that apply to the NYCHRL. See, e.g., Arazi,

2022 WL 912940, at *16-17; Forrest v. N.Y.C. Hous. Auth., 2023 WL 3203646, at *4

(S.D.N.Y. May 2, 2023) (citing Arazi, 2022 WL 912940, at *17). So after the 2019

amendments to the NYSHRL, the dismissal of Green’s Title VII claim might not

necessarily defeat her NYSHRL claim.

In light of these relatively recent changes, and because Green’s lone federal

claim has been dismissed for the reasons stated above, this Court will not decide the

merits of her NYSHRL claim. Federal district courts “have supplemental jurisdiction

over all [] claims that are so related to claims in the action within [the court’s] original

jurisdiction that they form part of the same case or controversy under Article III of the

United States Constitution.” 28 U.S.C. § 1367(a). But a court “may decline to exercise

supplemental jurisdiction over a claim” if, among other reasons, “the claim raises a

novel or complex issue of State law” or the court “has dismissed all claims over which it

has original jurisdiction.”10 Id. § 1367(c). If a court has dismissed all the federal claims

over which it had original jurisdiction, it “balances the traditional ‘values of judicial

economy, convenience, fairness, and comity[]’ in deciding whether to exercise

jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 450 (1988)). And “in the usual

case in which all federal-law claims are eliminated before trial, the balance of factors will

10 Because Green alleges that she is a citizen of Michigan and that General

Motors has its principal place of business in Michigan, see Docket Item 1 at ¶¶ 2, 3, the

Court does not have diversity jurisdiction over her NYSHRL claim. See 28 U.S.C. §

1332(a)(1), (c)(1); see also Docket Item 1 at ¶ 4 (Green’s alleging that the Court has

“[s]upplemental jurisdiction over [her] pend[e]nt state law claim[ under] 28 U.S.C. §

1367”).

point toward declining to exercise jurisdiction over the remaining state-law claims.” Id.

(alterations omitted) (quoting Cohill, 484 U.S. at 350 n.7).

After dismissing Title VII claims, other courts have declined to exercise

supplemental jurisdiction over NYCHRL claims at the summary judgment stage on the

grounds that those claims, which are evaluated under a different legal standard, present

“distinctly state-law question[s].” See, e.g., Ebel v. G/O Media, Inc., 2022 WL 2359245,

at *30 (S.D.N.Y. June 30, 2022); Fitzgerald v. We Co., 2022 WL 952963, at *10

(S.D.N.Y. Mar. 30, 2022) (declining to exercise supplemental jurisdiction after granting

summary judgment on federal claims because “the NYSHRL and NYCHRL employ a

different, more liberal substantive standard in resolving . . . retaliation[] and hostile work

environment claims”). In light of the amendments to the NYSHRL, this Court finds that

reasoning persuasive here as well: Because Green’s lone federal claim has been

dismissed before trial, her NYSHRL claim—which now may be governed by a different

standard—is best left to the New York State courts. And the parties already have

conducted discovery here, so Green’s NYSHRL claim likely can be efficiently resolved

in state court should she seek to pursue it there. See Vuona v. Merrill Lynch & Co., 919

F. Supp. 2d 359, 394 (S.D.N.Y. 2013) (“The extensive discovery already taken is likely

sufficient to enable [the p]laintiffs’ NYCHRL claims to be evaluated in state court without

any additional discovery.”). This Court therefore declines to exercise supplemental

jurisdiction over Green’s NYSHRL claim and instead dismisses that claim without

prejudice.

CONCLUSION

For the reasons stated above, General Motors’ motion for summary judgment,

Docket Item 20, is GRANTED in part. The Court grants General Motors’ motion for

summary judgment on Green’s Title VII claim, but it declines to exercise supplemental

jurisdiction over her NYSHRL claim, and Green’s NYSHRL claim is dismissed without

prejudice. The Clerk of the Court shall close the case.

SO ORDERED.

Dated: May 18, 2023

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE