# Byrne v. American Society for the Prevention of Cruelty to Animals, (A.S.P.C.A.)

> District Court, E.D. New York · June 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11064524

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 3, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11064524

## How later opinions describe it (automated extraction)

- affirming grant of summary judgment for defendants because plaintiffs could not demonstrate that any complained of conduct occurred because of their race
- reasoning that because the plaintiff did not establish a hostile work environment, “her claim of constructive discharge also fails”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
CAITLIN BYRNE, :
Plaintiff, :
: CORRECTED
-against- : MEMORANDUM DECISION AND
: ORDER
AMERICAN SOCIETY FOR THE :
PREVENTION OF CRUELTY TO ANIMALS, : 22-cv-7062 (BMC)
(A.S.P.C.A.); DARA RUIZ; COLLEEN :
DOHERTY; and ANTONIA VITALE, :
:
Defendants. :
----------------------------------------------------------- X
COGAN, District Judge.

Plaintiff’s Title VII hostile work environment claim can be summed up in one sentence
from her affidavit in opposition to defendants’ summary judgment motion: “Juxtaposed with my
treatment in group settings and even when trying to say hello to supervisors as everyone else did,
it was clear to me that I was being treated differently and worse than the non-Black employees.”
Plaintiff may have felt that way, but she has no evidence that any differential treatment was
racially based. At most, she’s made a case that she was not favorably viewed at work, fairly or
not. Her affidavit alludes to a “racially driven, inappropriate comment about the texture of [her]
hair” made by a supervisor outside of her department, which her own supervisor treated
dismissively when plaintiff reported it, but standing alone, a stray remark by a non-
decisionmaker is legally insufficient to raise a factual issue of hostile work environment.
There is no other comment or statement by defendants noting plaintiff’s race in the rest of
the record aside from plaintiff’s own interpretation of the source of the constant friction between
her and her supervisors. Thus, the rest of plaintiff’s argument is based on her feeling that she
was not treated nicely – she calls it “microaggressions” (a term used repeatedly in her
submissions) – and because there were many more white than black employees at the ASPCA,
the not-nice treatment must have been based on her race. She complains that her supervisors
gave her dirty looks; would not say hello to her; criticized or ignored her ideas in group settings;
refused her request to work remotely; gave her an undesirable assignment; did not give her the
opportunity to lead events that were supposed to be assigned on a rotating basis; and on one

occasion, asked her if she was the one responsible for some kind of verbal harassment (we are
not told about what) directed at her by workers for a third-party garbage collection service. She
conclusorily asserts that to the best of her knowledge, these things didn’t happen to white
workers, but despite discovery, she offers no quantification or specific identification of
comparable white workers to support that – just her opinion. As close as she gets are the
inadmissible opinions of a few other workers who agree with her that white workers are treated
better, but their opinions suffer from the same lack of substantiation as plaintiff’s.
No reasonable jury could find that plaintiff’s sense of racial victimization as opposed to
workplace friction is borne out by the evidence in this record. Accordingly, defendants’ motion
for summary judgment is granted as to her Title VII claim, and the Court will order the parties to

show cause why it should continue to exercise supplemental jurisdiction over her local law
claims.
BACKGROUND
The following undisputed facts are taken from defendants’ Local Rule 56.1 statement as
well as the evidentiary submissions submitted with the motion, all viewed in the light most
favorable to plaintiff.1

1 Like the parties’ other submissions in this case, defendants’ Rule 56.1 Statement was poorly executed and created
unnecessary work for the Court. Despite this being a simple employment discrimination case, the Rule 56.1
submission had 205 statements of allegedly undisputed facts. Many of these are irrelevant. Many others set forth
defendants’ characterizations of events and defendants’ motivations in taking certain actions that practically begged
plaintiff to dispute them. Plaintiff’s response was not much better. And neither party, in their briefs or their other
submissions, made any effort to differentiate facts that pertain to the sole Title VII claim as opposed to the five New
The ASPCA provides an array of services to New York City residents, businesses, and
public agencies, some through its Humane Law Enforcement (“HLE”) department. One of the
agencies with which the HLE works closely is the NYPD, responding to reports of criminal
conduct concerning animals. Many of HLE’s senior managers or officers are former NYPD

personnel.
Within the HLE department, the ASPCA has a Community Engagement (“CE”) program.
That program, among other things, works with pet owners who are having trouble caring or
maintaining a safe environment for their pets. The CE program is staffed with coordinators
(“CECs”), who provide training, conduct outreach, engage in field work, and maintain
relationships with partner agencies like the NYPD.
Plaintiff applied for a CEC job because of the ASPCA/NYPD connection; her father was
an NYPD captain and had a relationship with another police officer who was very close to
plaintiff and became a senior director of HLE. Plaintiff was initially unsuccessful in applying for
a paying job with the agency, principally because her background was in data analytics.

Nevertheless, upon the advice of her father’s friend, she volunteered for about two years at the
ASPCA, and then, after applying for a newly opened CEC position, she was hired.2
Plaintiff’s direct supervisor was defendant Dara Ruiz, who was the Senior Manager of
Community Engagement. Ruiz reported to non-defendant Erin Earley, who was the Director of

York City law claims, which was important because they revolved upon largely different evidence. Moreover, the
Title VII claim is clearly the tail of this case, and the New York City law claims are the dog.

2 Defendants waste time trying to establish that they were reluctant to hire plaintiff, that there were better qualified
candidates, and the parties argue over whether defendants hired her only because of her NYPD/family connection.
Defendants’ motivation in hiring her presents an issue of fact. Fortunately for defendants as it pertains to this
motion, it is immaterial, because by hiring her, they have admitted that she was qualified to do the job. The only
question is how she performed after she was hired.
Community Engagement. Earley reported, in turn, to defendant Colleen Doherty, who was
Senior Director of Community Engagement.
Ruiz had issues with plaintiff’s performance virtually from the start. In her first annual
review, there were some areas identified as accomplishments, but there were more specific

deficiencies noted, and overall, Ruiz gave her an “MSE” grade, which means “Meets Some, But
Not All Expectations.” That is the second from the lowest of the five-tiered ranking system that
the ASPCA uses. In her affidavit in support of defendants’ motion, Ruiz has asserted that when
she met with plaintiff to discuss the evaluation, plaintiff took the criticism poorly, becoming
tearful and seeking to blame others for her shortcomings.3 This became a pattern virtually any
time Ruiz would criticize (plaintiff’s characterization) or suggest improvement in (defendants’
characterization) plaintiff’s performance of aspects of her job. And there was quite a lot of
criticisms/suggestion for improvement.
Plaintiff’s second annual review was better, a level higher – “Fully Meets Expectations.”
In spring 2020, in response to the COVID-19 pandemic and the murder of George Floyd,

the ASPCA’s Human Resources department offered to speak with any employees who so
wished. Plaintiff requested a meeting with Kim Ferguson, the Director of People Partnership.
At the meeting, plaintiff “discussed her feelings of discomfort and marginalization as a mixed-
race woman with a family connection with the NYPD.” Ferguson subsequently asked plaintiff to
share their discussion with the Senior Director of People Partnership “to ensure that [plaintiff]
would have a more inclusive environment in meetings, team meetings at CE, and to make sure
[plaintiff] had a safe space.” Plaintiff declined.

3 Plaintiff admits that “there were a few occasions where she became emotional during her meetings with Ruiz, but
denies that it was due to performance feedback,” and she denies “refocusing the discussion on others,” but “she did
voice her side or plead an explanation” because she “was frequently blamed for, or criticized for events involving
other CEC employees without the supervisors allowing [plaintiff] to voice her side or experience of conversations.”
Later in 2020, defendant Antonia Vitale became the manager of the Human Resources
department at the ASPCA. By that time or near it, plaintiff’s relationship with Ruiz and her
indirect supervisors had fallen off a cliff. Vitale met with plaintiff and Ruiz separately and then
together for two sessions in an effort to mediate their inability to get along. The mediation

failed, and plaintiff continued to feel that she was being treated poorly. But the parties reached
some understanding of how to go forward. Notably, at no time during this uncomfortable
process did plaintiff express the view that her perception of Ruiz’s antipathy towards her was
based on race.
In November 2021, after repeated incidents that, according to Earley, Ruiz, and Doherty
(but not plaintiff) constituted non-compliance with procedures and protocols, they decided to put
plaintiff on a performance improvement plan (the “PIP”). On December 9, 2021, Doherty, Ruiz
and Vitale met with plaintiff to so advise her. Going into the meeting, plaintiff thought she was
going to be fired and decided to record the meeting. Shortly after the meeting, plaintiff had a
panic attack and called an ambulance that took her to a local hospital. Within a short time after

her hospitalization, plaintiff advised defendants that she would not be reporting to work for
health-related reasons, and she has acknowledged in this action that she had no intention of ever
returning to work.
Four days after her panic attack, plaintiff sent a letter to the CEO of the ASPCA laying
out her grievances. The ASPCA undertook an internal investigation, and plaintiff was
interviewed the next day. She acknowledged to the investigator that she knew of no specific
incidents of racial discrimination, just her feeling that “Caucasians or Hispanics … are just
treated significantly better than me.” Plaintiff stayed on the payroll for more than two months.
Her job as a CEC remained open to her. The ASPCA concluded its investigation, found no
evidence of a violation of its anti-discrimination policy, and so advised plaintiff. But it didn’t
fire her. Quite the contrary.
Plaintiff learned that Ruiz had been promoted and was no longer working in CE. Plaintiff
was also advised that if she returned to work, the PIP would be lifted, and she could return to

work with a “clean slate.” Neither Ruiz nor Doherty were involved in the decision to withdraw
the PIP nor do either of them know why it was withdrawn.
On March 24, 2022, plaintiff wrote to some of her colleagues that she was going to
graduate school to get a certificate in data analytics and would be leaving the ASPCA.
Her complaint in this action contains six claims. The first is for “hostile work
environment . . . including discrimination” under Title VII. The fifth is for constructive
termination, although it is unclear under which statute plaintiff brings this claim. The remainder
are for discrimination, retaliation, and aiding and abetting under New York City law. Discovery
having closed, defendants have moved for summary judgment.
DISCUSSION

I. Hostile Work Environment under Title VII
A hostile work environment is one “permeated with discriminatory intimidation, ridicule,
and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (internal quotation marks and quotations omitted). A plaintiff must show that “the
complained of conduct: (1) is objectively severe or pervasive – that is, creates an environment
that a reasonable person would find hostile or abusive; (2) creates an environment that the
plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment
because of the plaintiff’s” protected characteristics or protected activity. Patane v. Clark, 508
F.3d 106, 113 (2d Cir. 2007) (quotation omitted) (cleaned up). “Factors that a court might
consider in assessing the totality of the circumstances include: (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is threatening and humiliating, or a mere
offensive utterance; and (4) ‘whether it unreasonably interferes with an employee's work

performance.’” Id. (quoting Harris, 510 U.S. at 23).
On a motion for summary judgment, the non-moving party “must present concrete
particulars and cannot succeed with purely conclusory allegations.” Cadle Co. v. Newhouse, No.
01-cv-1777, 2002 WL 1888716, at *4 (S.D.N.Y. Aug. 16, 2002) (internal quotation marks and
quotation omitted); see also Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63
(2d Cir. 2003) (“[p]urely conclusory allegations of discrimination” insufficient to defeat
summary judgment motion (quotation omitted)). “Personal speculation is insufficient as a matter
of law to raise an inference of discrimination.” Boise v. N.Y. Univ., No. 03-cv-5862, 2005 WL
2899853, at *4 (S.D.N.Y. Nov. 3, 2005) (citation omitted).
Plaintiff does not come near to meeting this standard. Assuming arguendo that plaintiff

subjectively found the conduct directed at her to be hostile and abusive, she has not raised an
issue that any objective person would regard it similarly.
First, over the two years during which plaintiff alleges she was subject to a hostile work
environment, she can only point to two offensive comments that could, generously construed,
relate to her race. According to plaintiff, a supervisor in another department told plaintiff that
her hair looked damaged and that she should fix it, referring to the “edges” of plaintiff’s hair,
which plaintiff alleges are “a common characteristic of Black people’s textured hair.” Plaintiff
has also alluded to a “harassing” remark made by one or more garbage collectors apparently who
worked for a service under contract with the ASPCA, remarks which her supervisor chose not to
pursue on her behalf. But she hasn’t told us what that remark was. It’s impossible to find that
these two remarks contributed to a hostile work environment when this Court does not even
know what one of the remarks was, and the only other remark was made one time by an
individual outside plaintiff’s department. The “mere utterance of an epithet which engenders

offensive feelings in an employee . . . does not sufficiently affect the conditions of employment
to implicate Title VII.” Harris, 510 U.S. at 21 (quotation omitted) (cleaned up).
That leaves us, then, with a series of petty slights in the workplace, to which she believes
white employees were not subjected – e.g., dirty looks, not saying hello in the morning, not
letting her speak up at meetings – things like that which she calls “microaggressions.”
Plaintiff’s opinions and conclusions that whites and Hispanics were not subject to these
microaggressions is an inadequate basis to create a factual issue about a hostile work
environment. It is only plaintiff’s opinion that the ASPCA treats black employees worse than
non-black employees. Her opinion is not even admissible evidence because it is just that – her
opinion and conclusion – and opinion evidence from a layperson, a summing up of the

impressions that a worker draws about the work environment, is not admissible in a hostile work
environment case. Plaintiff has not provided any other evidence that any conduct she
experienced occurred “because of” her race. See Browne v. New York State Dep’t of Corr. &
Cmty. Supervision, No. 24-734, 2025 WL 1177958, at *1 (2d Cir. April 23, 2025) (quoting
Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 102 (2d Cir. 2020) (affirming grant of summary
judgment for defendants because plaintiffs could not demonstrate that any complained of
conduct occurred because of their race)).
Judge Chin considered a similar hostile work environment claim in Sharpe v. MCI
Communication Services, Inc., 684 F. Supp. 2d 394 (S.D.N.Y. 2010). There, the plaintiff’s
claim was based on his supervisor being mean to him. Judge Chin held that meanness in the
workplace and an opinion that there was less meanness towards employees in a non-protected
class were not sufficient to survive summary judgment on a hostile work environment claim:
Sharpe’s subjective belief, unsupported by any concrete facts or particulars, that
Fabiitti was “nasty” and “mean” when it came to people of color is insufficient to
defeat summary judgment. The fact that Fabiitti did not yell at four white
employees who might or might not have worked for him proves nothing. Further,
Sharpe’s argument is undermined by his admission that Fabiitti never made any
derogatory racial comments, and the fact that in all of his complaints against
Fabiitti, Sharpe never once mentioned race discrimination.

Id. at 400-01 (cleaned up).
Similar to Sharpe, our plaintiff attempts to buttress her opinion by offering the opinions
of a few other ASPCA employees or former employees who share similar opinions, or who think
she was doing a good job and thus the criticism of plaintiff must have been based on her race, but
their opinions are no more probative or admissible than hers. See Smith v. New York &
Presbyterian Hosp., 440 F. Supp. 3d 303, 339 (S.D.N.Y. 2020); Di Giovanna v. Beth Israel Med.
Ctr., 651 F. Supp. 2d 193, 202 (S.D.N.Y. 2009) (footnote omitted).
Defendants, for their part, have confused the matter further by attempting to treat
plaintiff’s evidence from these witnesses as “comparator” evidence. Defendants do not
understand the difference between witnesses and comparators. These witnesses are not
“comparators” and plaintiff has not offered their testimony for that purpose. Comparator
evidence, much more commonly used in discrimination than in hostile work environment claims,
looks at the qualifications of co-employees who have received promotions or salary
advancements that employees in a protected class with better qualifications have not. See
Graham v. Long Island R.R., 230 F.3d 34, 39-40 (2d Cir. 2000); Quarless v. Bronx-Lebanon
Hosp. Ctr., 228 F. Supp. 2d 377, 383 (S.D.N.Y. 2002), aff’d, 75 F. App’x 846 (2d Cir. 2003).
That is not what is going on here at all. Plaintiff does not offer an objective comparison
of her qualifications and performance to anyone else’s outside her class. She simply feels that
her supervisors were nicer to people outside her protected class and has offered the testimony of
others who feel they were also not treated nicely because of their race.

The problem with plaintiff’s witnesses is not that they are inadequate comparators, as
defendants misconstrue them, but that they offer no probative evidence of hostile work
environment or discrimination. For example, plaintiff relies on Dr. LaCheryl Ball, a veterinarian
who is black. Dr. Ball testified at her deposition that an unidentified manager told her at some
unspecified time not to apply for a promotion because, as to that position, “I wouldn’t be a good
candidate and they didn’t think I would like the job.” The position was still open as of the date
of Dr. Ball’s deposition. There is another one of those positions that is held by an unidentified
white person who has the same amount of time at ASPCA as Dr. Ball. Dr. Ball’s opinion is that
they have “similar” experience, but since we aren’t told who that person is or what their or Dr.
Ball’s experience is, we can’t make a judgment as to whether Dr. Ball is right that they their

experience is “similar.”
I would not allow a jury to hear this testimony and so I cannot consider it on summary
judgment. It would be precluded under Federal Rule of Evidence 401 and 403, and since we
cannot identify the speaker who Dr. Ball is quoting, Federal Rule of Evidence 801. That there is
one white person who holds a position and one black person who does not is irrelevant. There is
no indication that they ever competed with each other to get the position; if anything, the
inference is to the contrary. Whoever the unidentified person is who made the hearsay
statement, telling Dr. Ball she wouldn’t be a good candidate, does not permit an inference that
the advice given to Dr. Ball was based on her race. And whoever the unidentified person was, it
does not appear to have been one of plaintiff’s supervisors, as Dr. Ball does not work in the CE
department, or at least plaintiff hasn’t told us that she does.4
Subjective evaluation alone cannot constitute a hostile work environment; if it could, then
summary judgment would never be available in a hostile work environment case. Yet that is all

plaintiff offers. For example, she states: “Shortly after I was hired, I began noticing
microaggressions aimed towards me at the hands of my supervisors. . . .” She then lists general
incidents, without reference to specifics, like being ignored, and says, “I never witnessed [my
supervisor] do [that] with similarly situated non-Black employees.” Those repeated conclusory
assertions fall far short of a hostile work environment.5
On an objective basis, the conduct of which plaintiff complains was not frequent; it was
not threatening, humiliating, or even objectively offensive; and nothing her supervisors did
should have interfered with her work save for subjective sensitivity to it. Plaintiff cites not a
single federal case finding a comparable environment as hostile because there are none. Even
seen collectively, these are “petty workplace grievances,” Morales v. North Shore, No. 17-cv-

6518, 2019 WL 13409226, at *7 (E.D.N.Y. Jan. 16, 2019), that no reasonable jury could find
were based on plaintiff’s race.

4 Plaintiff’s other witnesses also fail to offer any relevant evidence. Isadora Peraza-Martinez, who worked at the
ASPCA for nine years, testified Ruiz ignored her one time, briefly withheld an address for a car wash from her, gave
her unspecified complaints, and on one occasion mocked Dr. Ball’s name “LaCheryl.” From this, Peraza-Martinez
concludes, like plaintiff, that she was treated less favorably. Shadina Arnett, who still works for ASPCA, actually
disclaimed any racial animus from her managers. Brandon Greene was fired after more than one complaint of
sexual harassment by an employee over whom he had supervision.

5 Much of plaintiff’s evidence is also inadmissible hearsay. She complains, for example, that she was assigned to
pick up a dead animal, and asserts that “af[t]er speaking to other team members, [I] learned that no one new to the
job had ever been sent to do something like that, especially not alone.” Aside from the vagueness of the statement,
the alleged statements of her unidentified “team members” are hearsay, and cannot be considered on a summary
judgment motion. See Fed. R. Civ. P. 56(c)(4). Making it worse, her supporting witnesses, besides offering their
opinions, do the same thing, offering hearsay based on things they supposedly learned from other unidentified
people.
II. Constructive Discharge under Title VII
Plaintiff includes a claim of constructive discharge, but does not specify whether this
claim is pursuant to Title VII or a New York state or city statute. This confusion is not worth
dwelling on, because defendants would be entitled to summary judgment on a Title VII

constructive discharge claim in any event.
“A constructive discharge occurs when an employer ‘intentionally creates a work
atmosphere so intolerable that [the plaintiff] is forced to quit involuntarily.’” Borski v. Staten
Island Rapid Transit, 413 F. App’x 409, 411 (2d Cir. 2011) (quoting Terry v. Ashcroft, 336 F.3d
128, 151-52 (2d Cir. 2003)). This “standard is higher than the standard for establishing a hostile
work environment.” Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 725 (2d Cir.
2010) (reasoning that because the plaintiff did not establish a hostile work environment, “her
claim of constructive discharge also fails”). As no reasonable jury could find for plaintiff on her
hostile work environment claim, plaintiff’s constructive discharge claim fails as well.
III. Racial Discrimination under Title VII

It is not at all clear that plaintiff is seeking to bring a claim for racial discrimination under
Title VII, as the only references to Title VII in the complaint are in the context of a “hostile work
environment riddled with racial prejudice including discrimination,” and plaintiff’s brief in
opposition to defendants’ motion does not discuss or even identify the standard for a Title VII
racial discrimination claim at all. Nevertheless, since plaintiff’s complaint uses the word
“discrimination” in her Title VII claim, I will address it.
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). Courts
analyzing discrimination claims under Title VII apply the three-step burden-shifting framework
originally established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ruiz v.
Rockland County, 609 F.3d 486, 491 (2d Cir. 2010); Graham, 230 F.3d at 38.
In the first step, a Title VII plaintiff must establish a prima facie case of discrimination.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The establishment of a
prima facie case creates an inference of discrimination. To establish a prima facie case, a
plaintiff must demonstrate that “(1) she was within the protected class; (2) she was qualified for
the position; (3) she was subject to an adverse employment action; and (4) the adverse action
occurred under circumstances giving rise to an inference of discrimination.” Walsh v. New York
City Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016) (quotation omitted). Second, “[i]f the plaintiff
successfully establishes a prima facie case, ‘the burden then must shift to the employer to
articulate some legitimate, nondiscriminatory reason for the adverse employment action.’” Id.
(quoting United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011)). Third, “[i]f the employer
carries that burden, ‘the plaintiff’s admissible evidence must show circumstances that would be

sufficient to permit a rational finder of fact to infer that the defendant’s employment decision
was more likely than not based in whole or in part on discrimination.’” Id. (quoting Feingold v.
New York, 366 F.3d 138, 152 (2d Cir. 2004)).
We need not tarry beyond the first McDonnell Douglas step, as plaintiff has not even
attempted to show a prima facie case. In fact, the term “adverse employment action” (the third
factor for a prima facie case) appears only once in plaintiff’s opposing memorandum, and that in
the context of an Appellate Division decision construing the New York City Local Civil Rights
Restoration Act of 2005 (the “NYC Restoration Act”), under which she brings the remainder of
her claims in this case – not Title VII. See Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29,
936 N.Y.S.2d 112 (1st Dep’t 2011).
Even if plaintiff is attempting to raise a Title VII discrimination claim, she has pointed to
no adverse employment action. Of course, she has asserted a constructive discharge claim under

state law, and a constructive discharge could be an adverse employment action. See Noh v.
Admarketplace, Inc., No. 24-cv-2107, 2025 WL 965882, at *5-6 (S.D.N.Y. March 28, 2025).
But since I have found that her hostile work environment claim fails, any constructive discharge
claim under Title VII would also fail ipso facto. Cf. Chenette v. Kenneth Cole Prods., Inc., 345
F. App’x 615, 620 (2d Cir. 2009) (“Having failed on her hostile work environment claim,
[plaintiff] can neither survive summary judgment on her constructive discharge claim, which
requires evidence of even more severe conditions.” (internal quotation marks and quotation
omitted)). In addition, when an employee turns down alternative avenues within the
organization to remove her from the allegedly discriminatory environment and instead resigns,
she cannot claim a constructive discharge under Title VII. See Miller v. Praxair, Inc., 408 F.

App’x 408, 410-11 (2d Cir. 2010) (voluntary resignation not amounting to constructive discharge
or hostile work environment did not constitute an adverse employment action); Cooper v. Wyeth
Ayerst Lederle, 106 F. Supp. 2d 479, 495 (S.D.N.Y. 2000) (“An employee who fails to explore
alternative avenues offered by her employer before concluding that resignation is the only option
cannot make out a claim of constructive discharge.” (citations omitted)).
Thus, if plaintiff is attempting to bring a Title VII discrimination claim, it is dismissed.
IV. State Law Claims
It is apparent both from plaintiff’s complaint and plaintiff’s brief in opposition to
defendants’ motion for summary judgment that plaintiff’s arguments have always been much
more focused on her New York City law claims than her Title VII claim. There is only one Title
VII claim and, as shown above, it is ill-defined and extremely weak. There are five New York
City Law claims that seek to apply the NYC Restoration Act and Human Rights Law. The local
law claims, because they include conspiracy, retaliation, and individual liability theories that the

Title VII claim does not, introduce a far broader array of factual and legal issues than raised by
the undisputed facts set forth above, and as plaintiff repeatedly emphasizes in her brief, the
determination of those claims will require a deliberately more lenient standard of proof than Title
VII. Plaintiff’s memorandum in opposition references Title VII only twice, and that for the
unremarkable proposition that an employer can be held liable if it takes no action in response to
an employee complaint of racial discrimination (and, again, plaintiff does not even allege a
racially discriminatory adverse employment action here under Title VII). There is no separate
discussion of the requirements for meeting any Title VII claim anywhere in her opposition
papers.
The supplemental jurisdiction statute, 28 U.S.C. § 1367(c), provides that a court may

decline to exercise supplemental jurisdiction if either the state law claim “substantially
predominates over the claim or claims over which the district court has original jurisdiction,” id.
§ 1367(c)(2), or if “the district court has dismissed all claims over which it has original
jurisdiction,” id. § 1367(c)(3). The Second Circuit has made clear that, generally, “if [all] federal
claims are dismissed before trial . . . the state claims should be dismissed as well.” Motorola
Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (quotation and citation omitted). Indeed,
“courts regularly dismiss state-law claims once a motion for summary judgment disposes of all
federal claims.” Muslim v. Sagamore Children’s Psychiatric Ctr., No. 22-cv-07850, 2024 WL
3431959, at *12 (E.D.N.Y. July 15, 2024) (citations omitted). Yet concluding that there are no
remaining federal claims is not the end of the inquiry; otherwise, § 1367(c) would not be
discretionary at all.
The parties will therefore be ordered to show cause why the Court should maintain
supplemental jurisdiction, unless they agree that this state law matter belongs in state court.
CONCLUSION
Defendants’ motion for summary judgment is granted as to plaintiffs Title VII claim (the
first claim in the complaint). The parties are ORDERED TO SHOW CAUSE within 14 days
why the Court should not decline to exercise subject matter jurisdiction over plaintiff’s
remaining five claims.

SO ORDERED.
Bran We. Cogan
USD
Dated: Brooklyn, New York
June 3, 2025

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11064524. Public record. Not legal advice.