Franco v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------- X

:

JOSEPH FRANCO,

:

Plaintiff,

: MEMORANDUM DECISION AND

ORDER

– against – :

19-CV-5905 (AMD) (CLP)

:

CITY OF NEW YORK, PATRICK MORAN,

GIOVANNI IANNIELLO, CHRISTOPHER :

VOLPE, OSMAN HERRERA, ANTHONY

:

DINOME, and TERESA NEAL,

Defendants. :

:

--------------------------------------------------------------- X

ANN M. DONNELLY, United States District Judge:

The plaintiff brings this employment discrimin ation action against New York City and

various individual defendants, alleging violations of T itle VII, the New York State Human

Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Before

the Court is the defendants’ motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56. For the reasons that follow, the defendants’ motion is granted in part and denied

in part.

BACKGROUND1

The Plaintiff’s Employment with the Sanitation Department

In March 2016, the plaintiff began working as a metal work mechanic in the central

repair shop (“CRS”) of the New York City Department of Sanitation (“DSNY”). (Defs. 56.1

1 Unless otherwise noted, the factual background is based on the Court’s review of the record submitted

by the parties. Some of the record is incomplete. However, “it is not the role of the Court to search the

summary judgment record for evidence supporting a party’s motion or opposition thereto.” Knight v.

Nassau Cnty., No. 17-CV-958, 2019 WL 3817392, at *4 (E.D.N.Y. Aug. 14, 2019). The Court has

reviewed record citations in the defendants’ Rule 56.1 statement, which includes the plaintiff’s

responses and objections (ECF No. 64 (“Defs. 56.1”)), as well as the plaintiff’s proposed Rule 56.1

¶ 7.) He was hired as a “provisional employee” (id. ¶ 8), and assigned to work in the Bureau of

Maintaining Equipment (“BME”) (ECF No. 63-3, Transcript of the Plaintiff’s Deposition (“Pl.

Dep.”) 29:23–30:5).

Giovanni Ianniello was the CRS supervisor when the plaintiff started at DSNY. (Defs.

56.1 ¶ 10.) In 2017, Patrick Moran became the new CRS supervisor. (Id. ¶ 11.) Christopher

Volpe2 was Moran’s supervisor and the deputy director. (Id. ¶ 13.) Anthony Dinome was the

BME “shop steward,” who was responsible for “keeping a running list of who worked overtime

in the past and who had the most seniority.” (Id. ¶¶ 12, 16.) Teresa Neal was the Director of

Office of Equity, Diversion, and Inclusion (“OEDI”). (Id. ¶ 14.) And Osman Herrara, a metal

work mechanic in the BME, was the “snapper,” the employee who distributed work assignments

to other BME mechanics. (Id. ¶ 15.)

February and March 2018: Alleged Sexual Harassment

The plaintiff claims that Herrera sexually harassed him three times between February and

March of 2018. The defendants deny these allegations.

In the middle of February 2018, the plaintiff was “bent over to repair [a] truck[,]” when

Herrera “crept up behind” him and started “thrusting and grinding [his] crotch and penis into

Plaintiff’s backside.” (Pl. 56.1 ¶ 7.) When the plaintiff told Herrera to stop and that he did not

like that, Herrera responded, “oh, I just thought you needed some help.” (Pl. Dep. 36:21-23.) He

laughed and walked away. (Id. 37:5-9.)

counterstatement, which he submitted before the pre-motion conference, and which also includes the

defendants’ responses and objections (ECF No. 55 (“Pl. 56.1”)). All citations to these documents

incorporate the responses and objections of the opposing party. The Court construes the facts in the

light most favorable to the plaintiff, the non-moving party. See Capobianco v. City of New York, 422

F.3d 47, 50 n.1 (2d Cir. 2015).

2 Volpe died on January 9, 2021, while this action was pending. (ECF No. 58.)

The same thing happened in late February 2018. The plaintiff was bending over a truck

when Herrera came up behind him and “began rubbing and grinding his genitals” on the

plaintiff’s buttocks. (Pl. 56.1 ¶ 10.) The plaintiff told him to stop. Herrera laughed and walked

away. (Pl. Dep. 45:1-11.)

There was another incident about a week later, in early March 2018. This time, the

plaintiff was dozing off during his break, when Herrera came over and “put[] his hand on [the

plaintiff’s] arm caressing down to [his] hand.” (Id. 64:15-19.) Startled, the plaintiff jumped out

of his chair and yelled that Herrera must never touch him again. (Id. 64:23-24, 65:19-20.)

Herrera smiled and walked away. (Id. 65:4-6.)

Shortly thereafter, the plaintiff complained to Moran about Herrera’s conduct. (Pl. 56.1

¶ 12.) The plaintiff accused Herrera of sexual harassment and told Moran that he did not want

Herrera to be around him or touch him. (Pl. Dep. 66:2-6.) He also told Moran that this “has to

stop.” (Id.) Moran shrugged his shoulders and walked away. (Id.)

After waiting for Moran to do something — although the plaintiff did not make any

specific demand — the plaintiff went to Volpe, the deputy director. (Id. 68:9-11.) The plaintiff

told Volpe about Herrera’s conduct and Moran’s indifference to it. (Id. 69:4-11.) Volpe

acknowledged that it was a serious accusation and an “EEO” issue. (Id. 71:20-22.)

July 2018: Meeting with Moran and Volpe and Formal Complaint

In late July 2018, Herrera confronted the plaintiff about an unfinished repair job in the

shop. (Pl. 56.1 ¶ 15.) According to the plaintiff, an overtime crew worked on the truck, he was

not assigned to it, and he did not know why he was being singled out. (Id.) Herrera yelled at

him and followed him around when he tried to walk away. (Pl. Dep. 74:18–75:3.) Herrera also

reminded him that he was a provisional employee, implying that he had fewer employment

protections. (Id.)

Within the hour, Moran arrived and brought the plaintiff to Volpe’s office. (Id. 75:4-6.)

Volpe told the plaintiff that he was causing problems and that he was getting emails about him.

(Id. 75:7-19.). When the plaintiff responded that he had previously reported Herrera’s conduct to

Volpe and Moran, Volpe called him a “snowflake” and a “crusader,” and said that some

employees were “untouchable.” (Id.) Volpe also threatened to send the plaintiff for a

psychological evaluation. (Id. 117:19-22.)

A few days later on July 29, 2018, the plaintiff filed a formal complaint with the OEDI,

“alleging that he had been repeatedly sexually harassed by Defendant Herrera.” (Defs. 56.1

¶ 17.) Neal was assigned to investigate. (Id. ¶ 19.) Over the next several months, OEDI

interviewed about fifteen employees, including the plaintiff. (Id. ¶ 18.) On December 8, 2018,

Neal informed Franco that she had completed her investigation into his complaint against

Herrera and concluded that “[a]t the present time, . . . the allegations of sexual harassment are

unsubstantiated.” (ECF No. 63-11 at 1.)

August and September 2018: Overtime

In August and September 2018 — while the OEDI investigation was ongoing — the

BME employees stopped receiving overtime hours. (ECF No. 69-5, Transcript of Marvin

Wellington’s Deposition (“Wellington Dep.”) 85:24–86:7.) According to Moran, this was

simply because there were fewer trucks that needed work. (ECF No. 63-4, Transcript of Patrick

Moran’s Deposition (“Moran Dep.”) 37:5-9.)

But the plaintiff and other BME employees testified otherwise. They claim that before

the overtime was cut but after Neal had already interviewed some witnesses, Edward Rasmussen,

a DSNY Deputy Director, came to the shop floor and instructed Kevin Alexander, a BME

employee, to call Neal, who was doing the OEDI investigation. (Pl. 56.1 ¶ 20; ECF No. 69-2,

Transcript of Kevin Alexander’s Deposition (“Alexander Dep.”) 60:15–61:2.) Alexander was

taken aback that Rasmussen knew that he was being interviewed as part of the investigation,

because Neal and the other OEDI investigator assured him that his interview with OEDI — and

indeed, even the fact that he was being interviewed — was confidential. (Alexander Dep. 60:9–

61:15.) A few days later, Sean McCaffrey, a metal work mechanic who was a part of the “in-

group” and responsible for monitoring the overtime list, told the BME employees that no one

was going to get overtime because the plaintiff filed an EEO complaint. (Pl. 56.1 ¶ 21;

Alexander Dep. 114:23–115:9, 117:15-18.)

November 2018: The Truck Incident

On November 18, 2018, while the OEDI investigation was still pending, the police were

called to CRS after an incident between the plaintiff and Dinome, also a member of the “in-

group.” (Defs. 56.1 ¶ 24; Alexander Dep. 121:8–16.) The plaintiff was cleaning a hydraulic

liquid spill in one of the work bays when Dinome started reversing a truck into the bay. (Defs.

56.1 ¶ 25; Pl. Dep. 101:22–102:21.) As Dinome got closer to him, the plaintiff told him to wait

until he cleaned the spill. (Pl. Dep. 102:21–103:7.) Dinome kept going, and hit the garbage can

that the plaintiff was using to clean the spill, causing the can to hit the plaintiff. (Id.) The

plaintiff and Dinome argued briefly and Dinome went to get Moran. (Id. 103:7-13.)

When Moran arrived a couple of minutes later, the plaintiff explained what happened and

told Moran that it was ridiculous. (Id. 103:13-19.) Moran replied that he had not seen it,

implying that there was nothing for him to do. (Id. 103:19.) The plaintiff decided to talk to

Volpe about what happened. (Id. 103:19-21.)

As soon as the plaintiff got to the office, Volpe started yelling at him. (Id. 104:3-4.) The

plaintiff said that he wanted to file a complaint against Dinome; Volpe responded that was not

what they did and that the plaintiff had his chance when he filed the EEO complaint. (Id. 104:4-

10.) Volpe suggested that they call the police so the plaintiff could make a report; he also said

that he had enough of the plaintiff. (Id. 104:10-15.) The plaintiff “begged” Volpe not to call the

police because he was not hurt and did not want his co-workers to think he called the police on a

co-worker. (Id. 104:13-23.) Volpe called the police anyway. (Id.) As the plaintiff feared,

rumors circulated among BME employees that the plaintiff was the one who called the police.

(Alexander Dep. 123:4-14.)

November 2018: Transfer to Bureau of Building Maintenance

A day or two after the truck incident, and while the OEDI investigation was still pending,

the plaintiff was transferred to the Bureau of Building Maintenance (“BBM”). (Defs. 56.1 ¶ 20.)

The plaintiff objected and asked for an explanation. (Pl. Dep. 113:15-21.) He was told that the

fourth floor “need[ed] a body” and that he was “being removed.” (Id. 113:25.) The plaintiff

protested that the most junior employee should be the first to be transferred if the need arose.

(Id. 113:22-23.)

Although the BBM was in the same building as the BME, the plaintiff had to move to

the fourth floor from the fifth floor. (Defs. 56.1 ¶¶ 20–21.) His hours changed slightly, too. At

BME, he worked a 6:00 a.m. to 2:30 p.m. shift, but he had to work from 6:30 a.m. until 3:00 p.m.

at BBM. (Id. ¶ 22.) His responsibilities were marginally different, but he was still a metal

worker (Pl. Dep. 99:2–19), and his base salary remained the same. (Defs. 56.1 ¶ 23.)

The plaintiff complained to Neal because he was not given a satisfactory reason for the

transfer. (Pl. Dep. 113:13–114:5.) The plaintiff also believed that he was transferred because of

his EEO complaint; he thought that changes to his employment conditions had to go through

Neal because the OEDI was still investigating his complaint. (Id.) Neal responded that it was

not a big deal, and that the plaintiff was being transferred for his own safety. (Id.)

LEGAL STANDARD

Summary judgment is warranted only if the submissions, including deposition transcripts,

affidavits, or other documentation show “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 “genuine”

dispute arises when “the evidence is such that a reasonable jury could return a verdict for the

non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes

over facts that might affect the outcome of the suit under governing law” qualify as “material,”

and “[f]actual disputes that are irrelevant or unnecessary” will not preclude summary judgment.

Id. The moving party bears the burden of demonstrating the absence of a genuine issue of

material fact. Strass v. Costco Wholesale Corp., No. 14-CV-6924, 2016 WL 3448578, at *2

(E.D.N.Y. June 17, 2016) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

“In considering a motion for summary judgment, the district court must draw all

inferences in favor of the non-moving party, and may [grant summary judgment] only if the

record reveals no genuine issue of material fact for trial.” Banks v. Gen. Motors, LLC, 81 F.4th

242, 258 (2d Cir. 2023) (internal quotation omitted). “It is a settled rule that credibility

assessments, choices between conflicting versions of the events, and the weighing of evidence

are matters for the jury, not for the court on a motion for summary judgment.” McClellan v.

Smith, 439 F.3d 137, 144 (2d Cir. 2006) (cleaned up). The moving party cannot prevail on

summary judgment “if the evidence is such that a reasonable jury could return a verdict for a

nonmoving party.” Banks, 81 F.4th at 258 (2d Cir. 2023) (quoting Anderson, 477 U.S. at 248).

The Second Circuit has “repeatedly expressed the need for caution about granting

summary judgment to an employer in a discrimination case where, as here, the merits turn on a

dispute as to the employer’s intent.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).

Given the “‘elusive nature of intentional discrimination,’ plaintiffs must often ‘rely on bits and

pieces of information to support an inference of discrimination.’” Banks, 81 F.4th at 259

(cleaned up) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)).

Accordingly, “[b]ecause of the likelihood that ‘direct evidence of an employer’s discriminatory

intent will rarely be found, affidavits and depositions must be carefully scrutinized for

circumstantial proof which, if believed, would show discrimination.” Id. (cleaned up) (quoting

Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)). “The resulting ‘mosaic of

intentional discrimination’ may be sufficient to show discrimination.” Id. (cleaned up) (quoting

Vega, 801 F.3d at 86). “Nonetheless, even in the discrimination context, a plaintiff must still

present more than conclusory allegations to survive a motion for summary judgment.” Id. (citing

Chertkova v. Conn. Gen. Life Ins., 92 F.3d 81, 92 (2d Cir. 1996)).

DISCUSSION

The plaintiff did not respond to the defendants’ arguments for summary judgment

regarding the following claims: hostile work environment under Title VII, intentional infliction

of emotional distress, assault and battery, and the individual claims against Volpe.3

Accordingly, the plaintiff has abandoned those claims. See Jackson v. Fed. Exp., 766 F.3d 189,

195 (2d Cir. 2014) (“[A] partial response arguing that summary judgment should be denied as to

some claims while not mentioning others may be deemed an abandonment of the unmentioned

claims.”). The Court therefore considers only the plaintiff’s claims for discrimination and

retaliation under federal, state, and city law.4

3 The plaintiff’s abandonment of the hostile work environment claim is discussed below.

4 In any event, the Court agrees that the plaintiff’s state tort law claims are untimely (ECF No. 65 at 5–8),

and that the claims against Volpe should be dismissed because the plaintiff did not move to substitute

after the defendants filed a notice of suggestion for death. (Id. at 4.) There is no basis, however, to

dismiss Dinome for failure to prosecute. (Id. at 4–5.) Indeed, counsel for Dinome has appeared and the

plaintiff has no obligation to depose any individual defendant.

Title VII and NYSHRL Disparate Treatment Claim

Title VII makes it unlawful for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). On a

motion for summary judgment, courts analyze Title VII discrimination claims under the

three-step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). See Bonaffini v. City Univ. of New York, 751 F.Supp.3d 67, 74 (E.D.N.Y.

2024) (citing Ruiz v. Rockland County, 609 F.3d 486, 491 (2d Cir. 2010)). The plaintiff must

first “establish a prima facie case of discrimination.” Graham v. Long Island R.R., 230 F.3d 34,

38 (2d Cir. 2000). In order to satisfy this initial burden in a disparate treatment case, an

employee must show that he: (1) belongs to a protected class; (2) is qualified for his position;

and (3) suffered an adverse employment action; and (4) the circumstances give rise to an

inference of discrimination. Brown v. City Univ. of New York, No. 21-CV-854, 2025 WL

638353, at *6 (E.D.N.Y. Feb. 27, 2025) (citing Vega v. Hempstead Union Free Sch. Dist., 801

F.3d 72, 83 (2d Cir. 2015)). If an employee can make that showing, a presumption of

discrimination arises and “the burden then shifts to the employer to ‘articulate a legitimate,

non-discriminatory reason’ for the disparate treatment.” Vega 801 F.3d at 83 (quoting

McDonnell Douglas, 411 U.S. at 802). “If the employer articulates such a reason for its actions,

the burden shifts back to the plaintiff to prove that the employer’s reason ‘was in fact pretext’ for

discrimination.” Id. (quoting McDonnell Douglas, 411 U.S. at 804). Because the plaintiff

complains of conduct that pre-dates the October 11, 2019 amendment to the NYSHRL, the Title

VII standard applies to the NYSHRL claim. McGill v. Univ. of Rochester, 600 F. App’x 789,

790 (2d Cir. 2015) (analyzing Title VII and NYSHRL claims under the same standard);

Sotomayor v. City of New York, 862 F. Supp. 2d 226, 257 (E.D.N.Y. 2012), aff’d, 713 F.3d 163

(2d Cir. 2013) (“Claims under the NYSHRL are analyzed under the same standards as federal

discrimination claims.”); McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 65 (S.D.N.Y.

2020) (holding that the 2019 amendment to the NYSHRL is not retroactive).

The defendants do not dispute that the plaintiff is a member of a protected class and

qualified for the position. The defendants argue that he has not sufficiently proven an adverse

employment action and does not allege an inference of discrimination. As explained below, the

plaintiff has not shown that he was subject to an adverse employment action. Accordingly, the

defendants are entitled to summary judgment on the plaintiff’s Title VII and NYSHRL

discrimination claims.

Under Title VII, an adverse employment action is an action that imposes “some harm

respecting an identifiable term or condition of employment.” Muldrow v. City of St. Louis,

Missouri, 601 U.S. 346, 355 (2024). The harm need not be significant or even material, but the

adverse action “must have left [the plaintiff] worse off.” Id. at 359. Moreover, “‘terms or

conditions’ in an employment discrimination claim cover more than the ‘economic or tangible’

factors and applies beyond a ‘narrow contractual sense.’” Ciotti v. City of New York, No.

23-CV-10279, 2025 WL 308022, at *13 (S.D.N.Y. Jan. 27, 2025) (alteration adopted) (quoting

Muldrow, 601 U.S. at 354). Ultimately, to survive summary judgment, the plaintiff must show

that the employer’s actions “brought about some ‘disadvantageous’ change in an employment

term or condition.” Muldrow, 601 U.S. at 354.

Before the Supreme Court decided Muldrow v. City of St. Louis, Missouri, it was the rule

in this circuit that a plaintiff had to prove a “materially adverse change” to establish a prima

facie disparate treatment claim under Title VII. See, e.g., Muldrow, 601 U.S. at 353, n.1

(explaining that the Court’s opinions “resolve[s] a Circuit split over whether an employee

challenging a transfer under Title VII must meet a heightened threshold of harm,” and noting the

Second Circuit’s “materially significant disadvantage” standard (quoting Williams v. R. H.

Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)). The Second Circuit recognized in a

summary order that “Muldrow . . . overruled our precedent, which required that the changes to a

term or condition of employment be materially adverse.” Back v. Hapoalim, No. 24-1064-CV,

2024 WL 4746263, at *2 (2d Cir. Nov. 12, 2024) (summary order); see also Anderson v.

Amazon.com, Inc., No. 23-CV-8347, 2024 WL 2801986, at *10 (S.D.N.Y. May 31, 2024)

(observing that the “landscape has changed with the Supreme Court’s decision in Muldrow”).5

The plaintiff argues only one adverse employment action: the alleged sexual harassment.

(ECF No. 68 at 15–16.) He claims that “[b]eing forced to endure repeated sexual assault in the

workplace is an adverse employment action.” (Id. at 15.) Therefore, in order to survive

summary judgment on his discrimination claim, the three alleged incidences of sexual

harassment must amount to “some ‘disadvantageous’ change in an employment term or

condition.” Muldrow, 601 U.S. at 354.

It is difficult to fit the plaintiff’s theory of harm into the conceptual framework of a

disparate treatment claim. This is at least in part because it sounds more appropriately in other

potential Title VII claims — most obviously, a hostile work environment claim. See, e.g.,

Desouza v. Off. of Child. & Fam. Servs., No. 18-CV-2463, 2019 WL 2477796, at *4 (E.D.N.Y.

5 The Second Circuit has not yet opined on whether the “some harm” standard applies to adverse actions

beyond the involuntary transfer context. However, courts in the circuit have consistently held that it

does, because the Supreme Court’s “reasoning relies on the language of Title VII’s anti-discrimination

provision rather than anything special about transfers.” Mitchell v. Planned Parenthood of Greater New

York, Inc., 745 F. Supp. 3d 68, 90 (S.D.N.Y. 2024); see also McCarthy v. Motorola Solutions, Inc.,

21-CV-4020, 2024 WL 3965950, at *10, n.3 (E.D.N.Y. Aug. 28, 2024); John v. Brooklyn Eye Ctr., No.

22-CV-6190, 2025 WL 317515, at *4, n.3 (E.D.N.Y. Jan. 28, 2025); Anderson, 2024 WL 2801986, at

*10; Peifer v. Bd. of Prob. & Parole, 106 F.4th 270, 277 (3d Cir. 2024). The Court finds this reasoning

persuasive.

June 12, 2019) (“Though claims challenging disparate treatment, quid pro quo sexual

harassment, and hostile work environment are all claims of gender discrimination, they are

distinct causes of action governed by different analytical standards.”). For instance, the Supreme

Court held that claims of workplace sexual harassment under Title VII are actionable if the

alleged harassment is “sufficiently severe or pervasive to alter the conditions of [the victim’s]

employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 67 (1986) (internal quotations and citations omitted); Patane v. Clark, 508 F.3d

106, 110, n.1 (2d Cir. 2007) (noting that the plaintiff’s “gender-based discrimination claim can

be divided into a discriminatory action claim and a hostile work environment claim”). Further,

“it is established ‘without question, that when a supervisor sexually harasses a subordinate

because of the subordinate’s sex, that supervisor “discriminates” on the basis of sex.’” Redd v.

New York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (alterations adopted) (quoting

Meritor Sav. Bank, FSB, 477 U.S. at 64).

This would seem the natural avenue for a discrimination claim under Title VII on these

facts. For example, there is substantial record evidence that Herrera regularly engaged in

inappropriate conduct. (See, e.g., Pl. 56.1 ¶¶ 7–11; Alexander Dep. 36:21–39:5; Wellington

Dep. 42:14–45:7; ECF No. 69-6, Declaration of Joseph Edgar, ¶¶ 3–7; ECF No. 69-7,

Declaration of Daniel O’Hare, ¶¶ 8–10, 12.)6 However, the plaintiff, who is represented by

6 The defendants ask the Court to strike the Edgar and O’Hare declarations, on the theory that “[i]t is well

settled that ‘a party may not create an issue of fact by submitting an affidavit in opposition to a summary

judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.’”

(ECF No. 71 at 2–3 (quoting Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.

1996).) But the “sham issue of fact” doctrine does not apply to these declarations. The doctrine

“prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts

the party’s previous sworn testimony.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir.

2014) (first emphasis in original) (internal quotation omitted). Neither Edgar nor O’Hare are parties to

the action, which alone defeats the defendants’ argument. Moreover, the defendants do not argue that

counsel, chose not to pursue a hostile work environment claim under Title VII; he did not oppose

the defendant’s summary judgment arguments on that claim and thus abandoned it. (See ECF

No. 65 at 17–19 (arguing for dismissal of the hostile work environment claim); ECF No. 68 at

13–16 (arguing only that the plaintiff has established a disparate treatment claim)); see also

Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 143 (2d Cir. 2016) (holding that

the plaintiff abandoned hostile-work-environment claims, “by failing to argue that they should

survive [the defendant’s] motion for summary judgment”). Under these circumstances, it is not

for the Court to make the plaintiff’s arguments for him, or to decide despite his abandonment

whether he has raised a genuine issue of material fact about the existence of a hostile work

environment. Instead, the Court must consider the argument the plaintiff does make: whether

Herrera’s conduct was an adverse employment action under a disparate treatment theory of Title

VII discrimination.

The plaintiff has not cited any case law (either pre- or post-Muldrow) that supports his

assertion that an alleged sexual assault may itself be an adverse employment action in this

context. But the Second Circuit has at least contemplated the possibility. In Mathirampuzha v.

Potter, 548 F.3d 70 (2d Cir. 2008), the court applied the disparate treatment standard and held

that a single event in which the plaintiff’s supervisor “grabbed [his] arm, punched him in the

shoulder and the chest, spit in his face, and poked him in the eye” was not an adverse

employment action. Id. at 73. The court observed that in the context of hostile work

environment claims “a single event, if ‘extraordinarily severe,’ could alter the conditions of a

working environment.” Id. at 79 (quoting Howley v. Town of Stratford, 217 F.3d 141, 153 (2d

these declarations contradict the affiants’ previous testimony — indeed, nothing in the record suggests

that they have given previous sworn testimony in this case.

Cir. 2000)). For example, a “single incident of rape,” “sufficiently alters the conditions of the

victim’s employment and clearly creates an abusive work environment for purposes of Title VII

liability” for sex-based discrimination. Id. at 79 (quoting Ferris v. Delta Air Lines, Inc., 277

F.3d 128, 136 (2d Cir. 2001). The court emphasized, however, that the incident would have to

“constitute an ‘intolerable alteration’ of the plaintiff’s working conditions, so as to substantially

interfere with or impair his ability to do his job.” Id. (quoting Howley, 217 F.3d at 15 and citing

Mormol v. Costco Wholesale Corp., 364 F.3d 54, 59 (2d Cir.2004)). The court, which seemed to

blend the standards for disparate treatment and hostile work environment claims in the context of

the record before it, concluded that the workplace assault was “not so severe as to alter

materially the plaintiff’s working conditions.” Id. The Second Circuit did not hold — and has

never held — that physical assault or sexual harassment qualify as adverse employment actions

in the context of a Title VII disparate treatment claim.

The single case that plaintiff cites to support his theory (ECF No. 68 at 15) arose in a

different context, and the court evaluated the motion under a different standard. In Rivers v. New

York City Hous. Auth., 176 F. Supp. 3d 229 (E.D.N.Y. 2016), the plaintiff asserted a First

Amendment retaliation claim, and the court considered whether the plaintiff had proved there

was an adverse action under that standard. Id. at 244, aff’d sub nom. Crenshaw v. New York City

Hous. Auth., 697 F. App’x 726 (2d Cir. 2017). The court concluded that “[p]hysical assaults

qualify as adverse employment actions for purposes of a First Amendment retaliation claim.” Id.

at 261 (emphasis added); see also Kelly v. New York State Off. of Mental Health, 200 F. Supp. 3d

378, 404 (E.D.N.Y. 2016) (collecting cases).

But the standard for an adverse employment action in the context of a disparate treatment

claim is different than the standard for a retaliation claim. As one court in the circuit recently

explained:

The anti-discrimination provision [of Title VII] “‘seeks a workplace where

individuals are not discriminated against’ because of traits like race and sex.” It

therefore outlaws all such discrimination in the workplace, even if the harm is

minor. The anti-retaliation provision seeks to prevent employer actions which

would “deter Title VII enforcement.” It therefore punishes any harm that “causes

significant enough harm to deter” employee complaints . . . . The retaliation

provision does not aim to prevent only certain types of retaliation, but generally to

prevent retaliation that would interfere with statutory enforcement.

Bamba v. United States Dep’t of Homeland Sec., No. 22-CV-7407, 2024 WL 3924810, at *16,

n.19 (S.D.N.Y. Aug. 23, 2024) (internal citation omitted). This comports with the Supreme

Court’s caution that the phrase “terms and conditions of employment” — even when broadened

beyond its “narrow contractual sense” — “circumscribes the injuries that can give rise to a suit”

for discrimination under Title VII. Muldrow, 601 U.S. at 354.

The examples of adverse changes in terms or conditions of employment that the Supreme

Court highlighted in Muldrow are also instructive. The Court held that each of the following

were changes to terms or conditions of employment that caused “some harm:” “[a]n engineering

technician is assigned to work at a new job site — specifically, a 14-by-22-foot wind tunnel; . . .

[a] shipping worker is required to take a position involving only nighttime work; . . . a school

principal is forced into a non-school-based administrative role supervising fewer employees

. . . .” Id. at 355–56.

The record in this case does not support concluding that the three instances of sexual

harassment alleged in this case constitute an adverse employment action “respecting an

identifiable term or condition of employment,” id. at 347, “at least without some showing about

how it disadvantaged” the plaintiff, Bonaffini, 751 F.Supp.3d at 76. Adopting the plaintiff’s

theory would swallow the distinction between disparate treatment and hostile work environment

claims — which have different standards — contrary to Title VII case law and to precedent in

this district holding that “a hostile work environment is ‘not an adverse action for the purpose of

[establishing] a disparate treatment claim.’” Fernandez v. Wenig Saltiel LLP, No. 19-CV-1979,

2024 WL 1345645, at *18 (E.D.N.Y. Mar. 29, 2024) (quoting Desouza, 2019 WL 2477796, at

*4); see also Schiraldi v. ProHEALTH Med. Mgmt., LLC, No. 21-CV-5956, 2024 WL 4252051,

at *11 (E.D.N.Y. Sept. 20, 2024) (“A hostile work environment claim is analyzed under different

standards than disparate treatment claims.”).7

If sexual harassment were an adverse employment action, a plaintiff would then have to

establish an inference of discrimination, a burden easily established in most cases because sexual

harassment is typically discrimination based on sex within the meaning of Title VII. Under the

McDonnell Douglas framework, the burden would then shift to the employer to proffer a non-

discriminatory reason for the adverse action. The employer would not in most cases be able to

provide a non-discriminatory explanation for sexual harassment, for obvious reasons. And, in

any event, it would be easy enough for a plaintiff to rebut that presumption at the third step.

Indeed, the only reason that this case could potentially escape this quagmire is that the alleged

sexual harassment was by an employee who, like the plaintiff, was a man. See Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (“In same-sex (as in all) harassment

7 A hostile work environment may, however, be the basis for a retaliation claim. For example, in Carr v.

New York City Transit Authority, 76 F.4th 172 (2d Cir. 2023), the Second Circuit recognized a claim for

a retaliatory hostile work environment. In that case, the court applied the retaliation standard and held

that “[a] claim of ‘retaliatory hostile work environment’ must therefore be treated identically to a claim

that an employer took multiple retaliatory actions that were, in the aggregate, ‘materially adverse.’” Id.

at 180. But while the allegations of a hostile work environment may be naturally subsumed within the

elements of a retaliation claim, the same is not true for a disparate treatment claim.

cases, that inquiry requires careful consideration of the social context in which particular

behavior occurs and is experienced by its target.”).

The plaintiff is surely right that pervasive sexual harassment leaves him “worse off.”

Moreover, “Muldrow instructs courts to be careful not to put too much weight on what

constitutes an adverse employment action.” Bonaffini, 751 F. Supp.3d at 78. But the plaintiff

does not state a cause for disparate treatment. On this record, the Court cannot identify a

“disadvantageous change” to a specific condition of employment. Muldrow, 601 U.S. at 347.

Accordingly, the plaintiff has not established a prima facie case of employment discrimination

under Title VII or the NYSHRL.

NYCHRL Discrimination Claim

The NYCHRL provides that it is “an unlawful discriminatory practice . . . [f]or an

employer . . . [t]o discriminate against [an] individual in . . . terms, conditions[,] or privileges of

employment” because of their gender, among other protected categories. N.Y.C. Admin. Code

§ 8-107(1)(a), (3). “[T]he NYCHRL requires that courts give the statute an independent and

more liberal construction than its federal and state counterparts.” Sotomayor, 862 F. Supp. 2d at

257. “The task of a court applying the NYCHRL is to ‘first identify the provision of the City

HRL [it is] interpreting and then ask, as required by the City Council: What interpretation ‘would

fulfill the broad and remedial purposes of the City’s Human Rights Law?’” Id. (quoting

Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 75 (1st Dep’t 2009)). “The NYCHRL does not

distinguish between claims of ‘discrimination’ and ‘harassment’ or hostile work environment.”

Anderson, 2024 WL 2801986, at *11 (internal citation omitted).

“For a NYCHRL claim to survive summary judgment, the plaintiff need only show that

her employer treated [him] ‘less well than other employees,’ at least in part for a discriminatory

reason.” Williams v. New York City Hous. Auth., 61 F.4th 55, 69 (2d Cir. 2023) (citing Mihalik

v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013)). If a plaintiff

makes this showing, his “employer may present evidence of its legitimate, non-discriminatory

motives to show the conduct was not caused by discrimination, but it is entitled to summary

judgment on this basis only if the record establishes that discrimination played no role in its

actions.” Id. (alterations adopted) (quoting Mihalik, 715 F.3d at 110, n.8). Thus, even if “the

plaintiff establishes that [he] was treated less well because of [his] protected characteristic,

defendants may assert an affirmative defense whereby they can still avoid liability if the conduct

complained of consists of nothing more than what a reasonable victim of discrimination would

consider petty slights and trivial inconveniences.” Id. (alterations adopted) (quoting Mihalik,

715 F.3d at 110–11). Nevertheless, “the conduct’s severity and pervasiveness are relevant only

to the issue of damages,” and therefore cannot support a defendant’s motion for summary

judgment. Id. (quoting Mihalik, 715 F.3d at 110).

While the alleged sexual harassment cannot serve as the adverse action to support a Title

VII or NYSHRL discrimination claim in this case, the plaintiff’s testimony about Herrera’s

conduct — corroborated by the plaintiffs’ co-workers — is sufficient to create a triable issue of

fact under the NYCHRL.

The Second Circuit has held that under the NYCHRL, all employees are “entitled to an

environment free from sexual harassment.” Mihalik, 715 F.3d at 114; see id. at 113–14

(reversing district court’s grant of summary judgment because a jury could reasonably find that

the plaintiff was treated “less well” than her male colleagues because she had to suffer unwanted

sexual attention). Indeed, courts in this circuit have held that conduct like Herrera’s may form

the basis of a hostile work environment claim. See Redd, 678 F.3d at 179 (reversing grant of

summary judgment where the plaintiff alleged that her supervisor, who was of the same-sex,

touched her breasts three times); Wahlstrom v. Metro-N. Commuter R.R. Co., 89 F. Supp. 2d 506,

521 (S.D.N.Y. 2000) (single incident where co-worker approached plaintiff from behind, gave

her a bear hug, made a grunting sound, and slapped her left buttock three times sufficient to

defeat motion for summary judgment on hostile work environment claim because “physical

contact between the parties was neither harmless nor accidental”); Guzman v. Macy’s Retail

Holdings, Inc., No. 09-CV-4472, 2010 WL 1222044, at *4 (S.D.N.Y. Mar. 29, 2010) (denying

motion to dismiss hostile work environment claim where the plaintiff alleged that a co-worker

“rubbed his genitals against her body, and then repeated that action after the plaintiff asked him

to stop”).

The defendants nonetheless argue that they are entitled to summary judgment because the

plaintiff has not demonstrated that Herrera’s conduct was because of his sex, as he must even

under the more liberal NYCHRL standard, presumably because the plaintiff and Herrera are both

men. (ECF No. 65 at 17.)8 But the defendants’ argument still misses the mark.

“[T]he question of whether considerations of the plaintiff’s sex ‘caused the conduct at

issue often requires an assessment of individuals’ motivations and state of mind.’” Redd, 678

F.3d at 178 (2d Cir. 2012) (emphasis in original) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d

537, 548 (2d Cir. 2010)). When fact questions such as “state of mind or intent are at issue,” as

they often are in sexual harassment cases, summary judgment “should be used sparingly.” Id.

(internal quotation omitted). “So long as there is some evidentiary basis for inferring that

facially sex-neutral incidents were motivated by the plaintiff’s gender, the ultimate question of

8 The defendants also argue that the allegations against Herrera were not sufficiently “severe or

pervasive” to alter the conditions of employment. (ECF No. 65 at 19.) But this argument, in addition to

not being especially persuasive, is not relevant to an NYCHRL discrimination claim at this stage. See

Anderson, 2024 WL 2801986, at *11.

whether such abuse was ‘because of’ the plaintiff’s gender is a question of fact for the

factfinder.” Kaytor, 609 F.3d at 548.

In cases of same-sex harassment, a plaintiff can establish that the harassment was

“because of” his sex in a variety of ways. For example, he may present “credible evidence of the

words and actions of a same-sex harasser [that] suggest sexual desire” from which “a rational

juror can find that the harasser’s conduct was based on sex, irrespective of whether the plaintiff

provides evidence of the harasser’s homosexuality.” Burke v. Villa, No. 19-CV-2957, 2021 WL

5591711, at *7 (E.D.N.Y. Nov. 30, 2021); see also id. (collecting cases). The plaintiff could also

show that same-sex harassment was discrimination based on sex by pointing to “direct

comparative evidence about how the alleged harasser treated members of both sexes in a mixed-

sex workplace.” Redd, 678 F.3d at 178 (quoting Oncale, 523 U.S. at 81).

When viewed in the light most favorable to the plaintiff, there is sufficient record

evidence to create a triable issue of fact about whether Herrera’s conduct was “because of” the

plaintiff’s sex. Most obviously, witnesses saw Herrera rub his genitals against several male

co-workers (see, e.g., Pl. 56.1 ¶¶ 7–11; Alexander Dep. 36:21–39:5; Wellington Dep. 42:14–

45:7; ECF No. 69-6, Declaration of Joseph Edgar, ¶¶ 3–7; ECF No. 69-7, Declaration of Daniel

O’Hare, ¶¶ 8–10, 12), but there was no evidence that he behaved the same way to the female

employee who worked in the BME. (Alexander Dep. 40:19–41:3.) Moreover, a reasonable jury

could find from the very nature of the harassment — grinding on the plaintiff’s buttocks and

caressing the plaintiff’s arm — that Herrera was motivated by sexual desire.

To be sure, a jury could also find that Herrera was just joking. “But the line between

teasing or hazing and sexual harassment is not always simple to discern, and it is not the court’s

place to supplant the factfinder’s role and make such determinations.” Burke, 2021 WL

5591711, at *8 (internal quotations omitted).

Accordingly, the defendants’ motion for summary judgment on the plaintiff’s NYCHRL

discrimination claim is denied.

Title VII, NYSHRL and NYCHRL Retaliation Claim

“Title VII prohibits an employer from discriminating against an employee because the

employee has engaged in protected activity.” Banks, 81 F.4th at 275. “[T]he McDonnell

Douglas framework applies to retaliation claims . . . brought under . . . Title VII.” Carr v. New

York City Transit Auth., 76 F.4th 172, 178 (2d Cir. 2023). To establish a Title VII retaliation

claim, an employee must show that: “(1) [he] engaged in protected activity, (2) the defendant

was aware of that activity, (3) [he] was subjected to a retaliatory action, or a series of retaliatory

actions, that were materially adverse, and (4) there was a causal connection between the

protected activity and the materially adverse action or actions.” Id. at 180. “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.’” Hicks v. Baines, 593 F.3d 159, 164 (2d

Cir. 2010) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005)).

“Once a prima facie case of retaliation is established, the burden of production shifts to the

employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action.”

Summa, 708 F.3d 115, 125 (2013) (citation omitted). If the employer makes this showing, then

the burden shifts back to the plaintiff to establish “that the reason offered by the employer is

merely pretext, and that the employer’s ‘desire to retaliate’ was the actual ‘but-for cause of the

challenged employment action.’” Saji v. Nassau Univ. Med. Ctr., 724 F. App’x 11, 14 (2d Cir.

2018) (quoting Ya–Chen Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d Cir. 2015)).

The standard for evaluating a retaliation claim under Title VII and the NYSHRL are the

same, so the Court analyzes them together. See Sotomayor, 862 F. Supp. 2d at 261.

Additionally, “the NYCHRL prohibits employers from ‘retaliating or discriminating in

any manner against any person because such person has opposed any practice forbidden under

this chapter.’” Mihalik, 715 F.3d at 112 (cleaned up). The NYCHRL’s retaliation provision is

broader than Title VII’s and operates as a “‘one-way ratchet,’ by which interpretations of state

and federal civil rights statutes can serve only ‘as a floor below which the City’s Human Rights

law cannot fall.’” Id. at 109, 112 (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268,

278 (2d Cir. 2009)). Therefore, if summary judgment is denied under the more exacting federal

and state standards — as the Court determines it should be — it must also be denied under the

NYCHRL.

a. Prima Facie Case

The defendants do not dispute that the plaintiff engaged in protected activity when he

complained about Herrera’s alleged harassment or that the defendants were aware of the conduct.

They argue instead that the asserted retaliatory conduct is not a materially adverse and that even

if it was, there was no causal connection between the protected activity and the materially

adverse action. For the reasons that follow, the plaintiff has raised a genuine dispute of material

fact, and the defendants’ motion for summary judgment on the retaliation claim is denied.

i. Materially Adverse Action

To establish a materially adverse action in the retaliation claim context, a plaintiff must

demonstrate that an employer’s actions are “harmful to the point that they could well dissuade a

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

Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). “[P]etty slights, minor annoyances, and

simple lack of good manners will not” usually constitute adverse actions under this standard. Id.

The question is solely “whether the actions, taken in the aggregate, are materially adverse and

would dissuade a reasonable employee from making a complaint of discrimination.” Carr, 76

F.4th at 181; see also Hicks, 593 F.3d at 165 (“[T]he alleged acts of retaliation need to be

considered both separately and in the aggregate, as even minor acts of retaliation can be

sufficiently ‘substantial in gross’ as to be actionable.” (quoting Zelnik v. Fashion Inst. of Tech.,

464 F.3d 217, 227 (2d Cir. 2006))). “This standard is plainly an objective one,” but “in

identifying materially adverse employment actions, ‘context matters,’” and “an act that would be

immaterial in some situations is material in others.” Moll v. Telesector Res. Grp., Inc., 94 F.4th

218, 239 (2d Cir. 2024) (quoting Burlington Northern, 548 U.S. at 69).9

The plaintiff asserts five actions that constitute materially adverse employment actions:

(i) “being yelled at and berated,” (ii) “being menaced with a garbage truck,” (iii) “being blamed

for costing the unit overtime,” (iv) “being banished from his unit,” and (v) “having his complaint

summarily dismissed.” (ECF No. 68 at 18.) While none of these actions individually would

qualify as an adverse employment action, drawing all permissible factual inferences in favor of

the plaintiff, there is a genuine dispute of material fact as to whether these actions in the

aggregate would dissuade a reasonable employee from making a complaint.

First, the plaintiff contends that after he approached Herrera’s superiors to complain

about his conduct, Herrera confronted the plaintiff about an unfinished truck repair. (Pl. 56.1

¶ 15.) The plaintiff claims that he was not assigned to work on the truck and did not know why

he was being singled out. (Id.) He further testified that he tried to walk away from Herrera, but

Herrera followed him and reminded him that he was a provisional employee, implying that he

9 Although the retaliation standard “covers a broader range of conduct than does the adverse-action

standard for claims of discrimination,” Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp. 3d 489, 517

(E.D.N.Y. 2019), the Muldrow Court held that the “materially adverse” standard in a retaliation context

was unaffected by its holding. Muldrow, 601 U.S. at 348.

had fewer protections from termination. (Pl. Dep. 74:18–75:3.) Soon after, Pat Moran, a BME

supervisor, summoned the plaintiff to Christopher Volpe’s office. (Id. 75:4-6.) According to the

plaintiff, Volpe accused him of being a problem, called him a “snowflake” and a “crusader,” and

said that some employees were “untouchable.” (Id. 75:7-19.) The plaintiff also claimed that

Volpe threatened to send him for a psychological evaluation. (Id. 117:19-22.)

These actions, by themselves, “fall within the realm of prototypical workplace incidents

that are not actionable under Title VII’s anti-retaliation provision.” Sesay-Harrell v. NYC Dep't

of Homeless Servs., No. 12-CV-925, 2013 WL 6244158, at *20 (S.D.N.Y. Dec. 2, 2013). In

general “an employer’s criticism of an employee’s work, without more, does not constitute an

adverse employment action.” Jones v. Brookhaven Sci. Assocs., LLC, No. 23-CV-4194, 2024

WL 4145777, at *15 (E.D.N.Y. Sept. 10, 2024) (citing Carr, 76 F.4th at 180). The same is true

of “[a] single instance of yelling.” Paupaw-Myrie v. Mount Vernon City Sch. Dist., 653 F. Supp.

3d 80, 103 (S.D.N.Y. 2023) (collecting cases); see also Alexander v. Westbury Union Free Sch.

Dist., 829 F. Supp. 2d 89, 109 (E.D.N.Y. 2011) (“[R]eprimands that do not lead to materially

adverse employment consequences are not actionable forms of retaliation.”). Indeed, even

verbal threats of termination or retaliation do not constitute materially adverse employment

actions. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 571 (2d Cir. 2011)

(threat of termination not adverse employment action); Rivers, 176 F. Supp. 3d at 251 (“Threats

of retaliation standing alone do not generally constitute adverse employment actions.”).

Second, the plaintiff testified that while his EEO complaint was pending, Anthony

Dinome, a co-worker who was aligned with the management and Herrera, purposely backed a

garbage truck into a work bay that the plaintiff was cleaning, even after the plaintiff told him to

stop, and came so close to the plaintiff that he knocked over the garbage can that the plaintiff

was using. (Defs. 56.1 ¶ 25; Pl. Dep. 101:22–103:7.) The plaintiff reported the incident to

Moran, who did nothing; and then to Volpe; Volpe called the police, despite the plaintiff’s plea

that he not do so, apparently to create the impression that the plaintiff called the police on a co-

worker. (Pl. Dep. 103:13–104:23.)

While a closer case, this conduct alone does not constitute an adverse employment action.

For example, it is not enough that the plaintiff was embarrassed or anxious because Volpe called

the police; “courts have repeatedly held that such behavior does not amount to an adverse

employment action in a retaliation context.” Kirkland-Hudson v. Mount Vernon City Sch. Dist.,

665 F. Supp. 3d 412, 461 (S.D.N.Y. 2023) (holding that “embarrass[ing], humiliat[ing], and

berat[ing]” the plaintiff in front of more than 50 colleagues was not a materially adverse action

and collecting cases). Nor does Dinome’s conduct constitute an adverse employment action,

because, by itself, it would not dissuade an employee from filing a complaint.

Third, the plaintiff maintains that overtime across the BME floor was limited after he

filed his EEO complaint and that Sean McCaffery, who was responsible for assigning overtime,

told the BME employees that the change was in fact a result of the plaintiff’s complaint. (Pl.

56.1 ¶ 21; Alexander Dep. 114:23–115:9, 117:15–24.) The BME-wide policy reducing overtime

is not an adverse employment action by itself. See Carr, 76 F.4th at 180 (“We have held that

absent allegations of more direct hostile conduct, a reasonable employee would not be dissuaded

from taking protected action simply because they are subject to the same policies as other

employees.”). Otherwise, McCaffery’s comments — although they singled out the plaintiff —

fall into the same category of embarrassing or anxiety-inducing conduct that on their own are not

objectively material enough to dissuade a reasonable employee from making a complaint. Id. at

181.

Fourth, the plaintiff argues that his involuntary transfer from the BME to the BMM was a

materially adverse action. “Reassignment of job duties may constitute a materially adverse

employment action.” Rios v. Max Mara USA Inc., No. 23-CV-9839, 2025 WL 66502, at *12

(S.D.N.Y. Jan. 10, 2025) (citing Burlington Northern, 548 U.S. at 71). “However, ‘[w]hether a

particular reassignment is materially adverse depends upon the circumstances of the particular

case, and should be judged from the perspective of a reasonable person in the plaintiff's position,

considering all the circumstances.’” Id. (quoting Kessler v. Westchester Cnty. Dep’t of Soc.

Servs., 461 F.3d 199, 209 (2d Cir. 2006)). This transfer does not meet any of the hallmarks that

are typically present when courts find involuntary transfers are materially adverse employment

actions. See, e.g., Wilkinson v. New York State, No. 18-CV-4148, 2019 WL 5423573, at *13

(E.D.N.Y. Oct. 22, 2019) (“Less prestigious assignments could be materially adverse to a

reasonable employee.” (internal quotation omitted)); Hodges v. Attorney Gen. of U.S., 976

F. Supp. 2d 480, 495 (S.D.N.Y. Sept. 30, 2013) (“assignment to the first floor communications

room and the refusal to honor [the p]laintiff’s ‘bids’ for an assignment to the third floor

communications room” insufficiently material for Title VII retaliation claim). For instance, the

plaintiff’s title and pay were identical, and his job responsibilities and schedule changed only

slightly. (Defs. 56.1 ¶ 23; Pl. Dep. 99:2-19.)

Finally, the plaintiff insists that his supervisors’ and the OEDI’s failure to investigate his

complaints was an adverse employment action. But “an employer’s failure to investigate a

complaint of discrimination cannot be considered an adverse employment action taken in

retaliation for the filing of the same discrimination complaint.” Kelly, 200 F. Supp. 3d at 404.

Accordingly, individually, none of the alleged adverse actions are sufficiently material.

However, when these incidents are viewed in the aggregate and in the light most

favorable to the plaintiff, this conduct is more than sufficient to meet the plaintiff’s de minimis

burden at step one. The record establishes clearly that directors, supervisors, and co-workers

targeted the plaintiff, ostracized him and tried to diminish him in the eyes of his colleagues. In

the context of a retaliation claim, where “[t]he scope of actions that may be materially adverse

. . . is broader than those actions prohibited by Title VII’s anti-discrimination provisions . . . and

‘extends beyond workplace-related or employment-related retaliatory acts and harm,’” Bowen-

Hooks v. City of New York, 13 F. Supp. 3d 179, 224–25 (E.D.N.Y. 2014) (quoting Hicks, 593

F.3d at 165), the record evidence demonstrates that the defendants’ conduct could dissuade a

reasonable employee from making a complaint.

ii. Causal Connection

The plaintiff has also demonstrated a causal connection between the adverse actions and

the protected activity. A plaintiff can establish a “causal connection” in a retaliation claim “(1)

indirectly, by showing that the protected activity was followed closely by discriminatory

treatment, or through other circumstantial evidence such as disparate treatment of fellow

employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory

animus directed against the plaintiff by the defendant.” Littlejohn v. City of New York, 795 F.3d

297, 319 (2d Cir. 2015) (citation omitted). “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 the adverse employment action.” Banks, 81 F.4th at 277

(alteration adopted) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.

2010)). The Second Circuit has “not drawn a bright line defining . . . the outer limits beyond

which a temporal relationship is too attenuated to establish causation,” but has “previously held

that a period of several months can demonstrate a causal connection between the protected

activity and the alleged adverse action.” Id.

In this case, the worst of the defendants’ conduct happened in the four-month period

immediately after the plaintiff filed his EEO complaint. That alone is sufficient to demonstrate a

causal connection. Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d

545, 555 (2d Cir. 2001) (four months between employment action and protected activity was

sufficient to support an inference of a causal connection). Moreover, when viewed in the light

most favorable to the plaintiff, the record is replete with evidence of retaliatory animus.

b. Legitimate, Non-Retaliatory Reason for Adverse Action

“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). The defendants say that

Herrera reprimanded the plaintiff in late July because the truck was in his work bay and therefore

his responsibility. (ECF No. 63-6, Transcript of Osman Herrera’s Deposition 78:19–79:14).

They also argue that Dinome’s conduct was entirely innocent, and that Volpe called the police

because “there was an attempted assault.” (Moran Dep. 126:5-11.) As to overtime, the

defendants maintain that it was limited simply because there were fewer trucks coming in

(Moran Dep. 37:5-9), and otherwise deny that McCaffery ever blamed the plaintiff (ECF No. 63-

8, Transcript of Sean McCaffery Deposition 78:14-21). The defendants contend that they

transferred the plaintiff to make the work environment better for everyone — including the

plaintiff. (ECF No. 65 at 21.)10 And finally, the defendants deny that the investigation was

10 The plaintiff also testified that a supervisor told him that he was being transferred because they needed

another worker on the fourth floor. (Pl. Dep. 113:25.)

insufficient. These explanations are sufficient to shift the burden back to the plaintiff to establish

that they are pretextual.

c. Pretext

At the third step, “a plaintiff alleging retaliation in violation of Title VII must show that

retaliation was a ‘but-for’ cause of the adverse action, and not simply a ‘substantial’ or

‘motivating’ factor in the employer’s decision.” Zann Kwan, 737 F.3d at 845. “However, ‘but-

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.” Id. at 846. “A plaintiff may prove that retaliation was a but-for cause of an adverse

employment action by demonstrating weaknesses, implausibilities, inconsistencies, or

contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action.” Id.

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

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

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

any material fact.” Id. at 846 n.5.

When viewed in the light most favorable to the plaintiff, a reasonable juror could find

that retaliation was a but-for cause of the adverse action. That is especially true because other

witnesses and evidence corroborate the plaintiff’s account. For example, at least one employee

confirmed that he heard McCaffery say that overtime was limited because of the plaintiff’s

complaint. (Alexander Dep. 117:15-24.) Moreover, McCaffery made that statement just a few

days after a Deputy Director brought up the confidential investigation on the shop floor. (Pl.

56.1 ¶¶ 20–21.) As for the call to the police, the plaintiff’s account of what happened was

buttressed by another employee’s testimony that he heard the plaintiff was the one who called

the police, evidence that suggests that Volpe had a retaliatory motive. (Pl. Dep. 104:14-23;

Alexander Dep. 123:4-14.) Finally, the defendants offered inconsistent reasons for the plaintiff’s

transfer, which raises a material fact issue best left to a jury. Roge v. NYP Holdings, Inc., 257

F.3d 164, 170 (2d Cir. 2001) (“[A] jury issue on the question of pretext may be created when an

employer offers inconsistent and varying explanations for its decision to terminate a plaintiff.”).

Accordingly, the plaintiff has carried his burden at the third step, and the defendants’

motion for summary judgment on the Title VII and NYSHRL retaliation claims is denied.

State and City Claims for Aiding and Abetting Against All Defendants

“To state a claim for aiding and abetting unlawful discrimination or retaliation [under

NYSHRL], a plaintiff must plead that the defendant ‘actually participate[d]’ in the unlawful

conduct of the principal actor.” Nezaj v. PS450 Bar & Rest., 719 F. Supp. 3d 318, 333 (S.D.N.Y.

2024) (quoting Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004)). A defendant

co-worker may be held personally liable under the NYSHRL if he or she “actually participates in

the conduct giving rise to a discrimination claim.” Achee v. Inc. Vill. of Valley Stream, No. 20-

CV-5294, 2023 WL 7130717, at *13 (E.D.N.Y. Oct. 30, 2023) (quoting Tomka v. Seiler Corp.,

66 F.3d 1295, 1308 (2d Cir. 1995)). “[T]he case law establishes beyond cavil that a supervisor’s

failure to take adequate remedial measures can rise to the level of ‘actual participation’ under

NYSHRL § 296(6).” Id. (internal quotation omitted). The same standards of analysis used to

evaluate aiding and abetting claims under the NYSHRL apply to such claims under the

NYCHRL because the language of the two laws is virtually identical.” Feingold, 366 F.3d at

158.

The plaintiff has raised questions of fact as to whether Herrera, Moran, Ianniello, and

Dinome participated in the conduct underlying the plaintiff’s surviving state and city claims.

The evidence that Herrera harassed the plaintiff raises a factual question about whether Herrera

participated in the other conduct. There is also a genuine dispute of fact about whether

supervisors Moran and Ianniello had a responsibility to do more to stem the harassment.

Moreover, affording the plaintiff every reasonable inference, there is also a question of fact as to

whether Dinome participated in the retaliatory conduct when he backed the truck into the work

bay that the plaintiff was cleaning and whether Moran retaliated against the plaintiff by cutting

overtime to the BME.

However, summary judgment is appropriate for Neal, because there is no evidence that

she participated in the harassment or was a supervisor. The plaintiff’s complaint that she

retaliated by mishandling the OEDI investigation is not sufficient, because incomplete or

inadequate investigation of a claim cannot be retaliation for filing that claim.

CONCLUSION

The defendants’ motion for summary judgment is granted in part and denied in part. The

plaintiff’s claim for employment discrimination under the New York City Human Rights Law

and his claim for retaliation under Title VII, the New York State Human Rights Law, and the

New York City Human Rights Law may proceed. All other claims are dismissed.

Further, the claims against individual defendants Osman Herrera, Patrick Moran,

Anthony Dinome, and Giovanni Ianniello may proceed. The claims against the remaining

individual defendants are dismissed.

SO ORDERED.

___s_/_A__n_n_ M___. _D_o__n_n_e_l_ly_______

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

March 30, 2025