Jackson v. NYS Department of Labor

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Shelley Jackson,

Plaintiff,

18-cv-4220, 20-cv-951 (NRM) (JRC)

v.

MEMORANDUM AND ORDER

New York State Department of Labor,

Shawn Singh

Defendants.

_____________________________________

Shelley Jackson,

Plaintiff,

v.

New York State Department of Labor,

Eric Nevid, Scarlet Ahmed,

Defendants.

NINA R. MORRISON, United States District Judge:

Plaintiff Shelley Jackson, proceeding pro se, brings these actions under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), against the

New York State Department of Labor (“DOL”).1 In both cases, Jackson alleges the

Defendant subjected her to a hostile work environment, either through sex

1 While Jackson named individuals in her complaints, no individual liability

exists under Title VII, see Patterson v. Cnty. of Oneida, 375 F.3d 206, 221 (2d Cir.

2004), nor have any of the named individuals entered appearances in this action. To

the extent that Jackson’s claims can be interpreted as against Shawn Sing, Eric

Nevid, or Scarlet Ahmed, they are dismissed.

discrimination or racial profiling. The cases were consolidated by this Court, and

defendant moves for summary judgment on all claims.

For the reasons discussed below, the Court GRANTS Defendant’s motion in

full.

BACKGROUND

The Court views the following facts “in the light most favorable to the non-

moving party,” Overton v. N.Y. State Div. of Mil. & Naval Affs., 373 F.3d 83, 89 (2d

Cir. 2004), and “resolve[s] all ambiguities and draw[s] all permissible factual

inferences in favor of the party against whom summary judgment is sought.” Sec.

Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).

In considering the parties’ motions, the Court has carefully reviewed the

Defendants’ Rule 56.1 Statement and has independently assessed the underlying

record to determine whether there are genuine issues of material fact in dispute and

whether summary judgment is appropriate. See Victory v. Pataki, 814 F.3d 47, 59

(2d Cir. 2016) (“If, as to the issue on which summary judgment is sought, there is any

evidence in the record from which a reasonable inference could be drawn in favor of

the nonmoving party, summary judgment is improper.” (quoting Rodriguez v. City of

New York, 72 F.3d 1051, 1061 (2d Cir. 1995))). The Court deems admitted those

factual assertions that are not specifically controverted with citations to admissible

evidence. See Local Civ. R. 56.1(c)–(d); Vt. Teddy Bear Co. v. 1-800 Beargram Co.,

373 F.3d 241, 246 (2d Cir. 2004).

As discussed further infra, Jackson has failed to submit a responsive Rule 56.1

Statement, instead submitting a one-page opposition generally taking issue with the

manner in which the facts were characterized by Defendants. See Pl.’s Opp to Defs.’

Mot. for Summ. J. (“Pl.’s Opp.”), ECF No. 81. However, in light of Jackson’s pro se

status, the Court has conducted a thorough and independent review of the evidence

submitted.

I. Facts Relevant to Jackson’s Sex Discrimination Complaint

Jackson, who identifies as Black and female, Compl. at 5, ECF No. 1,2 began

working at the DOL in 1994, Declaration of Joya Sonnenfeldt (“Sonnenfeldt Decl.”),

Exhibit A, Deposition of Shelley Jackson (“Jackson Dep.”), at 7, ECF No. 84-5. When

she worked in the Flushing office, where the relevant incidents took place, she worked

as an administrative assistant on the Unemployment Insurance (“UI”) team. Id. at

8–9. Her duties included tasks like typing and mailing. Id. at 10. From 2014 through

2016, Jackson was supervised by Shaji Thomas. Id.; Declaration of Jennifer

Williamson, (“Williamson Decl.”), ECF No. 84-6, ¶ 4. In 2016, she was supervised by

Kurian Jose for two weeks of December 2016. Williamson Decl. ¶ 5. Then Sengan

N’Jie supervised her until June 2017. Id. at ¶ 6. And starting in June 2017 until

2022, she was supervised by Errol Ferguson. Id. According to Plaintiff, Shaji Thomas

was of Indian descent and Errol Ferguson was Black. Jackson Dep. at 13.

2 Pincites refer to page numbers generated by CM/ECF, and not the document’s

internal pagination. Additionally, as this action involves two consolidated cases, the

ECF numbers refer to the document number relating to the case number 18-cv-4220.

Jackson claims that on November 1, 2017, Jackson Dep. at 30–32, the cleaner,

Shawn Singh, walked into the women’s bathroom without knocking, id. at 26. She

was at the sink and “He didn’t say anything. . . . I had to leave the restroom because

he was going to still stay in there.” Id. She reported the incident to her supervisor

at the time, Ferguson. Id. at 34. Jackson says that this was the second time Singh

had engaged in such conduct, although she cannot remember when the first such

incident occurred. Id. at 30–32. She says (but does not explain) in her opposition that

she also complained to her previous supervisor, Thomas, about the first incident. Pl.’s

Opp. ¶ 3. Ferguson told Jackson he would take care of it, and Singh did not walk into

the bathroom unannounced again. Jackson Dep. at 43.

The day after she complained to Ferguson, Singh picked up the trash can next

to Jackson’s desk and threw the trash on the ground. Id. at 43–44. On November 28,

Jackson overheard Singh joking to someone that he hopes he does not walk into the

bathroom while someone is on the toilet. Id. at 45. On December 1, she overheard

Ferguson and Singh joking about “catching someone on the toilet, walking into the

ladies’ room and take two steps slowly and then knock. They [were] making a joke

out of it.” Id. at 39. In her deposition, Jackson conceded that she did not know if they

were talking about the women’s restroom or a restroom in general. Id. at 40. Jackson

also alleges that Singh blocked her in the hallway two times so she could not get

around him. Id. at 52–53. Singh was a porter provided to the Department of Labor

through a contracting agency, Goodwill Industries. Declaration of Stuart P. Marcus

(“Marcus Decl.”), ECF No. 84-1, ¶¶ 7, 10. “Goodwill Industries places and supervises

individuals with disabilities and other barriers to employment.” Id. ¶ 5. Singh ceased

working at the Flushing office in August 2018. Id. ¶ 12.

Except for the email to Ferguson on November 1, 2017, Jackson cannot recall

if she complained again about Singh’s behavior (the trash can incident or the

subsequent joking with Ferguson). Jackson Dep. at 34, 44–46. She filed a complaint

with the Equal Employment Opportunity Commission (“EEOC”) in February of 2018,

and was issued her dismissal and notice of rights in April 2018. Sonnenfeldt Decl.,

Ex. B (EEOC Compl.), ECF No. 84-5; Compl. at 8–9. She filed this Complaint in 18-

cv-4220, (the “Sex Discrimination Complaint”), proceeding pro se, alleging a violation

of Title VII of the Civil Rights Act of 1964, on July 23, 2018. See Compl.

II. Facts Underlying Jackson’s Racial Profiling Claim

Plaintiff alleges that on October 4, 2018, she was followed into the mailroom

by Eric Nevid, a member of the Division of Employment and Workforce Solutions

(“DEWS”) team, which was housed in the same building as the UI team. Jackson

Dep. at 70. Jackson identified Nevid as White. Sonnenfedlt Decl., Ex. C (ECF No.

84-5), at 142. Nevid stood behind her as she stuffed envelopes and letters in the

mailroom. Jackson Dep. at 71–72. He stood there until she left. Id. According to

Plaintiff, it was not possible he was waiting to use the mail machine, and Nevid never

used the mailroom, as he has assistants and clerical staff do that work for him. Id.

at 73. She said he never blocked her, touched her, or told her to leave the mailroom.

Dep. at 76–77. She indicated that “it was kind of annoying. [She] couldn’t work with

someone standing there wither their arms folded.” Id. at 76. Jackson believes that

he followed her into the mailroom. Id. at 74. She left the mailroom and came back

later that day to finish her task. Id. at 77. She told her supervisor, Ferguson, to tell

Nevid that she was allowed to use the mailroom. Id. at 78–79. Nevid stopped

following her after she complained to Ferguson. Id. at 97.

In her deposition, Jackson stated that Nevid did not want her in the mailroom,

and he called security to watch her while she was in there. Id. at 77–78. When asked

why Nevid did not want her in the mailroom, she said that she did not know. Id. at

78; see also id. at 95 (when asked why she believed Nevid’s actions were due to her

race, she replied that she didn’t “know what his intentions were”).

Jackson did not say that she ever saw Nevid call security on her, or that she

was informed he was calling security on her. Id. at 82. However, numerous times

while she was in the mailroom, security came in the mailroom as well. Id. at 82–83.

No security guards ever said anything inappropriate to her, told her to leave, or

prevented her from doing her work. Id. at 85–86.

Jackson also claimed that Scarlet Ahmed, who worked under Mr. Nevid,

followed her into the mailroom. Id. at 87. Similarly, Ahmed did not say anything to

Jackson or interfere with her work. Id. at 88. Jackson never had any other problems

with Ahmed. Id. In her deposition, Jackson said that “when they saw me in [the

mailroom], they [would] come in there.” Id. at 89–90. It is unclear if she was referring

to Ahmed, Nevid, or security. At another point in her deposition, she stated that she

could not remember if someone was in there every time she went in. Id. at 90.

Jackson cannot recall if she told her supervisor about other people, besides Nevid,

following her into the mailroom. Id. at 97–98.

Jackson also contends said that Kurian Jose, a co-worker who was at one point

in 2016 her temporary supervisor for two weeks, once made racial jokes while he was

her co-worker. Specifically, he said that Jewish people are “cheap” and Greek people

are “crazy.” Id. at 90–92. These were not directed towards Jackson. Id. She also

claims that that while he was her supervisor in 2016, he would “harass [her] for no

reason. He would just complain if I [took] a day off, if I [was] sick.” Id. at 93. She

reported this to N’Jai. Id. at 93–94.

Jackson filed a complaint with the New York State Division of Human Rights

on December 28, 2018, and it was dismissed by said agency on July 3, 2019.

Sonnenfedlt Decl., Ex. C, (“NYSDHR Determination”), ECF No. 84-5, at 143–45.

Jackson filed this Complaint, (the “Racial Profiling Complaint”), proceeding pro se,

alleging violations of Title VII of the Civil Rights act of 1964 in case number 20-cv-

951, on February 20, 2020. See 20-cv-951, ECF No. 1.

III. Post-Complaint Factual Developments

The Flushing office where Jackson worked at the time of the events described

above was closed in 2022. Marcus Decl. ¶ 13. In her deposition, Jackson said that

she never had her salary docked, suffered a demotion, had any unsatisfactory ratings

at work, nor was she fired. Jackson Dep. at 100–01. She did claim that she was

denied remote working days, but that was after both lawsuits had been filed. Id. at

100. She left the Department of Labor on July 6, 2023, and started at the Department

of Education on the same day. Jackson Dep. at 101–102. She indicated that she was

not terminated from her DOL position. Id. at 102. Her position at the Department

of Education is an Administrative Assistant. Id. She did claim in her opposition

papers that while she was at the Department of Labor, she was the only employee in

her department who “had [her] remote days stopped.” Pl.’s Opp. ¶ 7.

IV. Procedural History

On May 4, 2023, Defendant filed a motion to consolidate the Sex

Discrimination case and the Racial Profiling Case. See Motion to Consolidate Cases,

ECF No. 38. This Court granted that motion on May 31, 2023. On August 12, 2024,

Defendant filed a combined motion for summary judgment addressing the claims in

both consolidated cases, asking this Court to dismiss all claims.3 See Def.’s Mot. for

Summ. J. (“Def.’s Mot.”), ECF. No 84-8. Broadly, Defendant argues that Jackson has

not proffered sufficient evidence to make out a hostile work environment claim in

either the Sex Discrimination Case or the Racial Profiling Case.

Along with its motion for summary judgment, Defendant served on Jackson

the text of Federal Rule of Civil Procedure 56 and Local Rule 56.1. See Letter re

Service of DOL’s Summary Judgment Motion, ECF No. 80. Jackson’s Opposition,

however, consists of a single page which largely takes issue with Defendant’s

3 On July 9, 2024, along with her opposition, Jackson sent a letter to the noting

that she did not receive an email about a briefing discussion on March 12, 2024. See

July 9, 2024 Letter to Judge Morrison, ECF No. 82. It is unclear what discussion

Jackson is referencing. It may be Defendant’s March 18, 2024, letter requesting a

briefing schedule from this Court. See ECF No. 79. There was no discussion on March

12, 2024.

characterization of the facts, and contains no 56.1 statement in opposition, as

required by Local Rule 56.1(b).

While pro se litigants are not excused from meeting the requirements of

Federal Rule of Civil Procedure 56 and Local Rule 56.1, where a pro se plaintiff fails

to submit a responsive Local 56.1 statement, a district court still retains discretion to

consider the substance of that plaintiff’s arguments by looking to the evidentiary

record presented to it. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)

(noting that the district court exercised its discretion “not to apply Local Rule 56.1 to

[plaintiff’s] failure to file a counter statement”). Accordingly, this Court considered

both Jackson’s and the DOL’s arguments upon a thorough review of the evidentiary

record.

LEGAL STANDARD

Summary judgment is appropriate “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). “A dispute about a ‘genuine issue’ exists for

summary judgment purposes where the evidence is such that a reasonable jury could

decide in the non-movant’s favor.” Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d

Cir. 2008). A fact is material “when its resolution ‘might affect the outcome of the

suit under the governing law.’” SCW W. LLC v. Westport Ins. Corp., 856 F. Supp. 2d

514, 521 (E.D.N.Y. 2012) (ADS) (AKT) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). In considering a summary judgment motion, the Court “is

required to view the record in the light most favorable to the party against which

summary judgment is contemplated and to resolve all ambiguities and draw all

factual inferences in favor of that party.” NetJets Aviation, Inc. v. LHC Commc’ns,

LLC, 537 F.3d 168, 178 (2d Cir. 2008).

“The moving party has the initial burden of demonstrating the absence of a

disputed issue of material fact.” Thorpe v. City of New York, No. 19-cv-5995 (CM)

(RWL), 2021 WL 3811238, at *4 (S.D.N.Y. Aug. 25, 2021). “Once such a showing has

been made, the non-moving party must present ‘specific facts showing that there is a

genuine issue for trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). “The party opposing

summary judgment ‘may not rely on conclusory allegations or unsubstantiated

speculation.’” Id. (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).

“Finally, the nonmoving party ‘must do more than simply show that there is some

metaphysical doubt as to the material facts.’” Id. (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “To withstand a summary

judgment motion, sufficient evidence must exist upon which a reasonable jury could

return a verdict for the nonmovant.” Id.

If a party is appearing pro se, the Court must interpret their papers liberally

and read them “to raise the strongest arguments that they suggest.” McPherson v.

Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation

omitted). Additionally, “the pro se litigant should be given special latitude in

responding to a summary judgment motion.” Knowles v. N.Y. City Dep’t of Corr., 904

F. Supp. 217, 220 (S.D.N.Y. 1995) (JGK) (internal quotation marks and citation

omitted).

DISCUSSION

I. Sex Discrimination Claim (No. 18-cv-4220)

To allege a prima facie case of employment discrimination, a plaintiff must

produce evidence showing: “(i) membership in a protected class; (ii) qualifications for

the position; (iii) an adverse employment action; and (iv) circumstances surrounding

that action giving rise to an inference of discrimination.” Collins v. N.Y. City Transit

Auth., 305 F.3d 113, 118 (2d Cir. 2002)

Jackson has not alleged that she suffered any adverse employment action, as

she did not allege that there was any “materially adverse change in [her] terms of

and conditions of her employment.” Galabaya v. N.Y. City Bd. of Educ., 202 F.3d 636,

640 (2d Cir. 2000) (internal quotation marks omitted). “A materially adverse change

might be indicated by a 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.” Id. (quoting Crady v. Liberty Nat’l Bank and Trust Co., 993

F.2d 132, 136 (7th Cir. 1993). Here, Jackson acknowledged that the DOL had not

taken any action towards her which could be considered materially adverse at the

time she filed her Complaints. See Jackson Dep. at 100–01 (acknowledging that there

was not a promotion she was denied or had any loss of compensation).

However, this does not end the inquiry. This Court must determine if Jackson

has put forth sufficient evidence to meet the summary judgment standard for a

hostile work environment. “A hostile work environment claim requires a showing [1]

that the harassment was ‘sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment,’ and [2] that a

specific basis exists for imputing the objectionable conduct to the employer.” Alfano

v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (alteration in original) (quoting Perry v.

Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). “The plaintiff must show that

the workplace was so severely permeated with discriminatory intimidation, ridicule,

and insult that the terms and conditions of her employment were thereby altered.”

Id. The alleged incidents “must be more than episodic; they must be sufficiently

continuous and concerted in order to be deemed pervasive.” Litlejohn v. City of New

York, 795 F.3d 297, 321 (2d Cir. 2015) (internal quotation marks omitted). Courts

“must consider the totality of the circumstances” in the inquiry, 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.” Id. (internal

quotation marks omitted). Additionally, “[i]t is axiomatic that mistreatment at work,

whether through subjection to a hostile environment or through such concrete

deprivations as being fired or being denied a promotion, is actionable under Title VII

only when it occurs because of an employee’s sex, or other protected characteristic.”

Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). It is true that “[f]acially

neutral incidents may be included . . . among the ‘totality of the circumstances’ that

courts consider in any hostile work environment claim,” but the plaintiff must still

offer “some circumstantial or other basis for inferring that incidents sex-neutral on

their face were in fact discriminatory.” Alfano, 294 F.3d at 378.

Jackson has not put forth sufficient evidence at summary judgment that there

is an issue of material fact as to whether Singh created a hostile work environment.

Even if a jury were to accept Jackson’s allegations as true, at most, they consist of a

few episodic moments with regard to Singh: coming into the bathroom without

knocking, blocking her way twice, knocking over her trash can, and joking with her

supervisor once about going into the bathroom while other people are present. These

actions do not provide any basis for a reasonable juror to conclude that the actions

were so pervasive that “that the terms and conditions of her employment were

thereby altered.” Alfano, 294 F.3d at 373. Courts have found that conduct in the

workplace which is much more egregious than Jackson’s allegations still fails to

constitute a hostile work environment. In Littlejohn, the Second Circuit dismissed a

hostile work environment claim where the plaintiff alleged a supervisor “made

negative statements” about her, “was impatient and used harsh tones” with plaintiff,

“distanced herself from [plaintiff] when she was nearby,” “declined to meet with

[plaintiff], “replaced [plaintiff] at meetings,” “wrongfully reprimanded [plaintiff],”

“increased [plaintiff’s] reporting schedule,” made a sarcastic comment to plaintiff, and

told plaintiff she did not “understand the culture” at the employing agency. 795 F.3d

at 321; see also Kilgannon v. Soc. Sec. Admin., No. 20-cv-1891 (MKV), 2021 WL

4523505, at *8 (S.D.N.Y. Sept. 30, 2021) (“[P]hysical actions like blocking someone’s

way in an office do not create a hostile work environment where there is no allegation

of physical contact.”)

Additionally, the fact that the alleged conduct was perpetrated by a contractor,

not Jackson’s supervisor, forecloses her claim of a hostile work environment on this

record. “[T]he law is clear that where the alleged harasser was a non-supervisor, the

employer will only be liable if they were ‘negligent in controlling working conditions.’”

Kilgannon, 2021 WL 4523505, at *8 (quoting Lekettey v. City of New York, 637 Fed.

App’x 659, 662 (2d Cir. Feb. 8, 2016) (summary order)). Mr. Singh was a contractor,

and “in the Title VII context . . . the conduct of certain non-employees may be imputed

to the employer where (1) the employer exercises a high degree of control over the

behavior of the non-employee, and (2) the employer’s own negligence permits of

facilitates that non-employee’s discrimination.” Menaker v. Hofstra Univ., 935 F.3d

20, 38–39 (2d Cir. 2019) (internal quotation marks omitted). Plaintiff only alleges

one time that she reported Singh’s behavior to her supervisor, and she acknowledges

that her supervisor said he would talk to Singh, and Singh never again went into the

bathroom without knocking. See Jackson Dep. at 34, 43–46. Thus, she has not shown

either that her employer exercised a high degree of control over Singh, nor that her

employer acted negligently with regard to Singh’s alleged discrimination.

The fact that Plaintiff once overheard her supervisor, Ferguson, joking about

knocking before going in the bathroom is not sufficient to create a hostile work

environment attributable to him. “Although a single incident can create a hostile

work environment, the incident must have been extraordinarily severe and therefore

this standard is reserved only for the most egregious conduct.” Agosto v. New York

City Dep’t of Educ., 982 F.3d 86, 103 (2d Cir. 2020) (internal quotation marks

omitted). This standard was met, for example when plaintiff was “punched in the

ribs,” “temporarily blinded by having mace sprayed in his eyes,” and “covered . . . with

shaving cream.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 213 230 (2d Cir. 2004).

In contrast, the Second Circuit has held that a supervisor making a crude comment

about a colleague’s appearance and then “deliberately touch[ing] [her] breasts with

some papers that he was holding in his hand” was not sufficient to create a hostile

work environment. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.

1998), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101 (2002).

Other cases in which courts have found that Plaintiff sufficiently alleged facts

to proceed with a hostile work environment claim involve conduct that is far more

egregious and pervasive those presented here. For example, a court has found an

inference of a hostile work environment when a teacher alleged, inter alia, that

supervisors gave her poor performance reviews, placed her on a Teacher

Improvement Plan (which is a “precursor to either receiving an unsatisfactory rating,

the commencement of proceedings to terminate employment, or both”), reassigned

her to a class that was more difficult to manage, denied her support managing that

class, and solicited students to make false allegations about her performance all in a

plot to then have her fired. Clarke-Green v. New York City Dep’t of Educ., 17-cv-778

(RRM) (VMS), 2019 WL 13149583, at *1, 11 (E.D.N.Y. Mar. 20, 2019) (internal

quotation marks omitted); see also Gallo v. Alitalia-Linee Aeree Italiane-Societa per

Azioni, 585 F. Supp. 2d 520, 538 (S.D.N.Y. 2008) (CM) (denying summary judgment

where plaintiff alleged supervisor assaulted him at least twice, made derogatory

comments about plaintiff’s sexual orientation multiple times, and remarked on

plaintiff’s age several times).

This Court therefore agrees with Defendant that Jackson has not presented

sufficient evidence to allege, as a matter of law, a hostile work environment. Thus,

her cause of action seeking relief based on sex discrimination, No. 18-cv-4220, must

be dismissed.4

II. Racial Profiling Claim (No. 20-cv-951)

Just as with Jackson’s Sex Discrimination Claim, as she asserts no adverse

action occurring prior to her filing of this Complaint, Jackson’s only possible claim

under Title VII as to the Racial Profiling Claim is one that alleges a hostile work

environment. Here, Jackson claims that Nevid stood behind her when she was in the

mail room, and “it was kind of annoying. [She] couldn’t work with someone standing

there with their arms folded.” Jackson Dep. at 76. She also alleges that Ahmed and

security guards would go into the mail room when she was in there. See id. at 82–83,

88. She specifically said that she did not “know what his intentions were” when asked

4 Defendant argues that any of Singh’s behavior prior to May 3, 2017, should

not be considered as Jackson’s EEOC Complaint was not filed until February 17,

2018, and are therefore any complaints about behavior more than 300 days prior to

that date are untimely. See Def. Mot. at 18–19. As the Court finds that summary

judgment for Defendant is warranted even considering all of Singh’s alleged actions,

it declines to rule on this argument.

if she thought he was following her because of her race. Id. at 95. Additionally,

Jackson alleges that while he was her co-worker, Kurian Jose said that Jewish people

are “cheap” and Greek people are “crazy,” Id. at 91–92, and while he was her

supervisor for two weeks in 2016, he would “harass [her] for no reason. He would just

complain if I [took] a day off, if I [was] sick,” id. at 93. This Court agrees with

Defendant that Jackson’s are not sufficient to show, as a matter of law, a hostile work

environment.5

Courts in this Circuit regularly dismiss hostile work environment claims in

cases where plaintiffs allege far more egregious actions than those at issue here. See,

e.g., Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 235 (E.D.N.Y. 2014) (MKB)

(finding that a supervisor “following [p]laintiff into a garage in a menacing manner,

and threatening to charge [p]laintiff with insubordination for refusing to remove a

window covering from her office” does not constitute a hostile work environment);

Trachtenberg v. Dep’t of Educ., 937 F. Supp. 2d 460, 472–73 (S.D.N.Y. 2013) (PAE)

(dismissing a case at the pleading stage where the plaintiff alleged that she was

subjected to excessive scrutiny, her boss would “frequently stand in the area and stare

at [plaintiff] in an effort to intimidate her,” she received negative performance

reviews, and was moved to a poorly ventilated, windowless office). Additionally,

5 Defendant argues that Jose’s behavior prior to March 3, 2018, should not be

considered by this Court as Plaintiff filed her NYSDHR complaint in December of

2018, and any claims regarding this behavior are therefore untimely. Def.’s Mot. at

24–25. Because this Court concludes that, even considering those actions, Defendant

is entitled to summary judgment as a matter of law, it declines to pass on the

timeliness of Jackson’s claims.

Jose’s lone remarks — which were not directed towards Jackson nor a member of a

group to which Jackson belongs — cannot create a hostile work environment, as “[f]or

racist comments, slurs, and jokes to constitute a hostile work environment, there

must be more than a few isolated incidents of racial enmity, meaning that instead of

sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.”

Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). In contrast, the Circuit

found that a triable issue of fact existed for a hostile work environment claim where

a supervisor “constantly made racially derogatory remarks” including using a racial

slur and saying that “the only other job you [Hispanic] people can do is sweep the

floors in Mcdonald’s.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570–71 (2d Cir. 2000)

(alteration in original).

Even assuming, arguendo, that the actions of Jackson’s colleagues — following

her into the mailroom or harassing her about taking a day off — did create a hostile

work environment, this Court finds no facts which could lead to an inference that

these actions were race-based. The Second Circuit has instructed that there must be

“some circumstantial or other basis for inferring that incidents [race]-neutral on their

face [are] in fact discriminatory.” Alfano, 294 F.3d at 375. Jackson has proffered no

evidence, direct or circumstantial, that her being followed into the mail room — or

Jose complaining about her taking days off — was due to her race.

Therefore, because Jackson has failed to adduce any facts to support a hostile

work environment claim in her cause of action asserting unlawful racial profiling (No.

20-cv-351), the Court grants Defendant’s summary judgment motion.

III. Constructive Discharge

In Jackson’s opposition to summary judgment, she raises for the first time a

constructive discharge claim. Specifically, she writes:

I didn’t voluntarily leave my position at DOL. I couldn’t work due to a

hostile environment it became intolerable to work there. It was

constructive discharge. I suffered emotional distress. I was the only

employee in UI Tax who had my remote days stopped. I also submitted

doctors note[s] in reference to me working remotely.

Pl.’s Opp. ¶ 7. Jackson filed her lawsuits on July 23, 2018, and February 20, 2020.

See ECF No. 1 (18-cv-4220), ECF No. 1 (20-cv-351). Jackson left the DOL on July 6,

2023, Jackson Dep. at 101. A constructive discharge claim stemming from a 2023

change in employment is its own, separate, claim, one that was never raised in

Jackson’s complaints. See Chin v. Port Auth., 685 F.3d 135, 157 (2d Cir. 2012)

(“Discrete acts such as termination . . . give rise to a freestanding Title VII claim with

[their] own filing deadline.” (internal quotation marks omitted)). Even though

Jackson is proceeding pro se, and this Court must interpret her filings liberally, she

cannot assert an entirely new claim — which accrued after her filing of these suits —

in her opposition to summary judgment. See Oyewo v. Lahood, 515 Fed. App’x 10, 11

(2d Cir. 2013) (summary order) (holding that a “[pro se plaintiff] has abandoned her

alternative work schedule claim by raising it for the first time in opposition to

[defendant’s] motion for summary judgment”); see also Wright v. Jewish Child Care

Ass’n of N.Y., 68 F. Supp. 3d 520, 529 (S.D.N.Y. 2014) (NRM) (“[Plaintiff’s] current

status as a pro se litigant does not allow her to assert new claims at this late stage.”).

Thus, this Court will not consider Jackson’s newly asserted claim that her 2023

change in employment was a constructive discharge.

CONCLUSION

For the foregoing reasons, the Court grants Defendant’s motion for summary

judgment in full. Both of Jackson’s consolidated cases, Nos. 18-cv-4220 and 20-cv-

951, are dismissed. The Clerk of Court is respectfully directed to enter judgment,

close the cases, mail a copy of this Memorandum and Order to the pro se Plaintiff,

and note the mailing on the docket.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would

not be taken in good faith and, therefore, in forma pauperis status is denied for the

purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED. /s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: Brooklyn, New York

March 31, 2025