McGrath v. Fire Department of the City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MICHAEL MCGRATH, MEMORANDUM & ORDER

Plaintiff, 17-CV-1461 (NGG) (JRC)

-against-

FIRE DEPARTMENT OF THE CITY OF NEW

YORK, and THE CITY OF NEW YORK,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Michael McGrath brings this action against Defendants

Fire Department of the City of New York (the “FDNY”) and the

City of New York (the “City”) (collectively, “Defendants”). On

August 8, 2019, this court issued a Memorandum and Order

granting in part and denying in part Defendants’ motion to dis-

miss. McGrath v. Arroyo, No. 17-CV-1461 (NGG) (RER), 2019

WL 3754459, at *18 (E.D.N.Y. Aug. 8, 2019) (dismissing claims

against individual defendants). Plaintiffs claims that survived

that motion are allegations of violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-3 (“Title VII”), Section 296

of the New York State Human Rights Law, N.Y. Exec. Law § 296

(“NYSHRL”), Sections 40-c and 40-d of the New York Civil Rights

Law, N.Y. Civ. Rights Law §§ 40-c & 40-d (“NYCRL”), and Section

8-107 of the New York City Human Rights Law, N.Y.C. Admin.

Code § 8-107 (“NYCHRL”), for wrongfully retaliating against

him on the basis of his race and gender. (See generally Am.

Compl. (Dkt. 32).) Pending before the court is Defendants’ mo-

tion for summary judgment filed pursuant to Federal Rule of Civil

Procedure 56, which McGrath opposes. (Defs.’ Not. of Mot. (Dkt.

134); Defs.’ Mem. in Supp. of Mot. (“Mot.”) (Dkt. 137); PI.’s

Mem. in Opp’n. of Mot. (“Opp’n”) (Dkt. 142); Defs.’ Reply in

Supp. of Mot. (“Reply”) (Dkt. 138).) For the reasons set forth

below, Defendants’ motion for summary judgment is GRANTED.

I. BACKGROUND

A. Factual Background

Michael McGrath is a white, male, retired FDNY officer. (See

Defs.’ Rule 56.1 Statement (“Defs.’ 56.1 Stmt.”) (Dkt. 136) 4 1.)

McGrath began his career as a fireman at the FDNY in 1979 and

was employed by the FDNY until he retired on February 15,

2018. (See id. #4 15, 155.) Throughout his career at the FDNY,

he was promoted several times, eventually becoming Battalion

Commander for FDNY Battalion 47 in Far Rockaway, Queens in

2003. (See id. 7 16-18.) Two years into his command of FNDY

Battalion 47, Battalion 47 became a “joint facilit[y]” housing

both Fire Operations and EMS Operations. (Id. § 20; Pl.’s 56.1

Statement (“Pl.’s 56.1 Stmt.”) (Dkt. 141 at ECF pp. 44-56) 4 3.)

The court refers to the joint facility where McGrath worked as

the “Firehouse.” Both Fire Operations and EMS Operations

housed in the Firehouse share common areas, including a gym,

terrace, locker rooms, and bathrooms. (Defs.” 56.1 Stmt. 21.)

In January 2014, McGrath met Marilyn Arroyo, an EMS Para-

medic, when Arroyo was involved in a motor vehicle accident to

which McGrath responded. (Pl.’s 56.1 Stmt. {9 9-10.) It is undis-

puted that McGrath and Arroyo met several times after they first

met, (see Aug. 15, 2016 FDNY EEO Investigation Mem. from Ce-

cilia Loving to Daniel A. Nigro (“Nigro Mem.”) (Dkt. 135-10 at

ECF pp. 13-16) at ECF p. 14), but the parties dispute whether

these meetings were dates or “merely two co-workers getting to-

gether because Arroyo asked for job-related advice due to having

family members interested in applying to the FDNY,” (Pl.’s 56.1

Stmt. § 11). McGrath claims that shortly after meeting Arroyo,

he began hearing rumors that Arroyo was having sex with a fire-

fighter inside of the Firehouse. (See Pl.’s 56.1 Stmt. 4 13.)

McGrath first approached Arroyo’s supervisor Chief Steven Russo

with the allegations; Russo told McGrath that he would speak

with Arroyo and get back to McGrath by the end of the day. (See

id. § 18.) Russo did not get back to McGrath that day. (See id. 4

19.) On March 15, 2015, McGrath approached Arroyo and dis-

cussed the allegations with her.! (See Defs.’ 56.1 Stmt. { 26; Pl.’s

56.1 Stmt. 4 20.) McGrath then brought the allegations to Assis-

tant Chief Edward Baggott and Division Commander James

DiDomencio. (See Pl.’s 56.1 Stmt. §€ 30-31.) DiDomenico told

McGrath that while the FDNY Bureau of Investigations and Trials

(“BITs”) was not going to investigate the allegations, Arroyo’s

EMS supervisor would speak with her. Ud. { 33.) Shortly there-

after, DiDomenico instructed all Battalion Commanders

(including McGrath) to give “drills on inappropriate behavior.”

(Ud. 4 34.)

1. Arroyo FDNY EEO Complaint

On April 3, 2015, Arroyo submitted a complaint to the FDNY’s

Equal Opportunity Employment (“EEO”) Office alleging that

McGrath sexually harassed her. (See Defs.’ 56.1 Stmt. 9 22, 47;

Arroyo EEO Compl. (Dkt. 135-6).) The Arroyo FDNY EEO Com-

plaint alleged that on March 15, 2015, McGrath asked Arroyo to

meet him in the Firehouse’s mechanical room, where McGrath

“informed [Arroyo] that firemen’s wives were making complaints

about [Arroyo] with regard to rumors of inappropriate behavior

with numerous firefighters from Battalion 47 as well as police

officers from the local precincts.” (Arroyo EEO Compl. at ECF p.

3.) Arroyo alleged further that McGrath “claimed that the wives

were unhappy with [Arroyo] having a personal relationship with

a 35 year old fireman from E268.” (Id.) Arroyo claimed that

McGrath said he could “make this all go away” if she agreed to

1 The parties dispute how many times McGrath met with Arroyo regarding the

allegations, as well as the content of these conversations. (Compare Defs.’ 56.1

Stmt. 26-40 with Pl.’s 56.1 Stmt. {{ 21-27.) Defendants also assert that in

the weeks following McGrath’s initial conversation with Arroyo about the alle-

gations, McGrath discussed the allegations with other firefighters at the

Firehouse, (See Defs.’ 56.1 Stmt. {| 41-47.)

transfer to another EMS Station and gave her until the following

day to let him know her decision. (Id.)

In March or April 2015, the FDNY reassigned McGrath to Queens

Borough Command. (See Pl.’s 56.1 Stmt. 4 37.)? McGrath alleges

that he was reassigned “without warning” and “stripped of his

duties.” id.) The FDNY asserts that it acted pursuant to FDNY

policy: “The FDNY transfer policy states that when a member’s

unacceptable behavior, in violation of FDNY regulations and pol-

icies, is of such a serious nature as to affect the administrative or

operational effectiveness of a unit, a FDNY member may be de-

tailed pending the outcome of formal disciplinary proceedings.”

(Defs.’ 56.1 Reply 4 40.) On April 6, 2015, the FDNY EEO Office

assigned a lawyer to investigate Arroyo’s complaint, and that

lawyer conducted investigative interviews of the relevant individ-

uals, including Arroyo, McGrath, and DiDomenico. (See Def.s’

56.1 Stmt. 152; Defs.’ 56.1 Reply 4 43-44, 48-50.)

2. McGrath Agency Complaints

On May 16, 2016, McGrath filed his own complaints with the

FDNY EEO Office, the New York State Department of Human

Rights (““NYSDHR”), and the United States Equal Employment

Opportunity Commission (“US EEOC”) (collectively, “Agency

Complaints”). (See Pl.’s 56.1 Stmt. € 45; Jul. 13, 2016 Mem. to

Don H. Nguyen (“Nguyen Mem.”) (Dkt. 135-14).) According to

an internal FDNY memorandum, McGrath’s FDNY EEO com-

plaint alleged that McGrath “was transferred and demoted due

to his race (Caucasian) and gender (male), and that Arroyo re-

ceived differential treatment because she is female and

Hispanic.” (Nguyen Mem.)

2 McGrath asserts that he was reassigned on or about March 27, 2015, (see Pl.’s

56.1 Stmt. { 37), while Defendants assert that McGrath was reassigned on

April 9, 2015, (see Defs.” Reply to Pl.’s 56.1 Stmt. (“Defs.’ 56.1 Reply”) (Dkt.

138) 9 37).

3. Outcome of EEO Complaints

Determinations in both Arroyo’s and McGrath’s FDNY EEO com-

plaints came later that year. On July 13, 2016, McGrath’s FDNY

EEO complaint was “administratively closed and . . . referred to

the General Law Unit” because McGrath indicated during the in-

take meeting for his FDNY EEO complaint that he had also filed

a complaint outside the FDNY. (Id. (“Pursuant to the New York

Citywide Policy, externally filed cases shall be closed and for-

warded to the Agency General Counsel for further review and

handling.”); see also Defs.’ 56.1 Stmt. {{ 70, 73, 75.)° With re-

gard to Arroyo’s FDNY EEO complaint, on August 15, 2016, the

FDNY EEO Office issued a memorandum to the Fire Commis-

sioner Daniel A. Nigro substantiating Arroyo’s sexual harassment

complaint against McGrath and recommending that “Arroyo and

McGrath continue to be separated from working at the same lo-

cation, and that McGrath be sent to EEO training and counseled

by the [FDNY] EEO Office.” (See Pl.’s 56.1 Stmt. 52; Nigro

Mem. at ECF p. 16.) The memorandum recommended further

that the matter be referred to BITs “for appropriate discipline.”

(Nigro Mem. at ECF p. 16.)4

3 On June 28, 2016, the FDNY EEO Office received a copy of McGrath’s

NYSDHR complaint, which was “cross-filed” with McGrath’s US EEO Com-

plaint. (Nguyen Mem.)

4 McGrath submitted a draft version of the FDNY EEO Office memorandum

dated August 5, 2016 that substantiated Arroyo’s complaint and recommended

that he continue to be separated from Arroyo, but had slightly different lan-

guage in the recommendation section. (See Aug. 5, 2016 Draft FDNY EEO

Investigation Mem. (“Draft Nigro Mem.”) (Dkt. 140-17).) For example, the

Draft Nigro Memorandum noted that McGrath served in the FDNY for “over

37 years ... with an unblemished record” and that McGrath was detailed from

his Battalion to the Queens Borough Command immediately after Arroyo filed

the FDNY EEO complaint against McGrath, and McGrath “ha[d] been there

ever since.” Ud. at 11.) The Draft Nigro Memorandum was later updated and

presented by Cecilia Loving to Commissioner Daniel A. Nigro for his review

and adoption. (See Nigro Mem.)

On September 9, 2016, BIT served McGrath with four charges

under the FDNY’s internal rules and regulations relating to sexual

harassment, making false statements, and general conduct. (See

Pl.’s 56.1 Stmt. 4 58; Defs.’ 56.1 Stmt. 4 60-61.) As to McGrath’s

NYSDHR complaint, the NYSDHR issued a “no probable cause”

determination on November 10, 2016 dismissing McGrath’s com-

plaint. (See Defs.’ 56.1 Stmt. 4 78 (citing NYSDHR Determination

and Order After Investigation (Dkt. 135-16)).)

4. The Award and Medal Day

FDNY firefighters who complete heroic acts are eligible for

awards as determined by the FDNY’s Board of Merit, a rotating

panel of five FDNY chiefs. (See Defs.’ 56.1 Stmt. 4 81-82.) When

a meritorious act is submitted to the Board of Merit, the em-

ployee’s supervisor recommends a specific class of award, listed

as follows from highest to lowest class: Class I, Class II, Class III,

Class A, or Class B. (See id. {{ 93, 88.) The Board of Merit then

votes for which class of award each nominee should receive and

the votes for each nominee are tabulated as follows: Class I votes

are worth seven points, Class II votes worth six points, Class III

votes are worth five points, Class A votes are worth four points,

and Class B votes are worth three points. (See id. 88, 90-91.)

The awards are determined by a tally of points determined by

the Board vote, and the list of medal recipient candidates is re-

viewed by senior FDNY leadership before the final awards are

issued. (See id. {{ 90, 96, 107.) Generally, approximately 40 to

45 FDNY employees receive a medal on Medal Day held annually

during the first Wednesday of June. (See id. 4 99, 97.) While

recipients of Class I, II or II] awards are always invited to attend

the ceremony, the parties dispute the extent to which recipients

of Class A or B awards are invited to attend. (See id. □ 99-102.)

Recipients of Class A or B awards who do not receive a medal on

Medal Day nevertheless receive an award for their meritorious

act, including a medal and uniform insignia. (See id. { 105.)

On August 13, 2016, McGrath performed an off-duty water res-

cue of four individuals caught in a rip tide. (See Pl.’s 56.1 Stmt. 4

62.) As McGrath was not on duty during the rescue, McGrath

submitted a meritorious act form to his supervisor DiDomenico.

(See id. 64, 66.) DiDomencio recommended McGrath for a

Class III award for McGrath’s rip tide rescue. (See Defs.’ 56.1

Stmt. § 113.) On December 15, 2016, the Board of Merit

awarded McGrath a total of 21 points and voted to give McGrath

a Class A award for his rip tide rescue. (See id. {{ 114, 118.)

While Plaintiff was asked to complete a “medal day winner bio

form’ on March 16, 2017, (see Defs.’ 56.1 Reply 4 77), the parties

dispute whether McGrath was invited to attend Medal Day, (see

Defs.’ 56.1 Stmt. 4 119). However, McGrath asserts that, after he

filed the instant action on March 15, 2017, he learned on or

around May 5, 2017 that he was not invited to Medal Day. (See

Pl’s Counterstatement of Additional Material Facts (“Pl.’s 56.1

Counter Stmt.”) (Dkt. 141 at ECF pp. 1-44) 4 119 (noting that

another firefighter William Felton who received fewer points for

the same water rescue was invited to Medal Day); Pl.’s 56.1 Stmt.

| 85.) McGrath discussed appealing the decision with DiDome-

nico. (See Defs.’ 56.1 Stmt. 49 122-24.)

5. McGrath’s Disability Pension

On January 16, 2018, the same day McGrath filed for retirement

effective February 16, 2018, McGrath applied for a “Service In-

curred Disability” pension. (See Defs.’ 56.1 Stmt. {4 153-54.) In

his application for the Service Incurred Disability pension, he

claimed several categories of disabilities such as respiratory con-

ditions and post-traumatic stress disorder (“PTSD”) arising from

his work at the World Trade Center following the September 11,

2001 terrorist attacks (“9/11”), and a spine and knee injury he

claimed occurred as a result of a slip and fall in 2016. (See id. 1

144, 161; Pl.’s 56.1 Stmt. 4 91-92.) FDNY firefighters may retire

with a non-disability service retirement after completing 20 years

of uniformed service. (See Defs.’ 56.1 Stmt. § 126.)

FDNY firefighters may also apply for one or both types of supple-

mental disability pensions: ordinary (non-service connected) or

accidental (service connected). (See id. 4{ 126-27.) There are

three layers of review for disability pensions. (See id. {4 128-43.)

First, the FDNY Bureau of Health Services Medical Board (“BHS

Medical Board”) must make a “fitness for duty” determination.

(See id. 131.) For any member found permanently unfit for duty

by the BHS Medical Board, the Fire Commissioner must apply for

the disability retirement with the 1-B Medical Board—a panel of

three physicians that is independent of the FDNY and Pension

Board of Trustees. (See id. {{ 133-37, 140.) The 1-B Medical

Board reviews the disability application and any supporting evi-

dence from the applicant, and makes a determination that binds

the Pension Board of Trustees as to whether the firefighter is dis-

abled for retirement purposes, and makes a recommendation to

the Pension Board of Trustees on whether the disability was

caused by an accident in the firefighter’s line of duty. (See id. {{

136-38.) The Pension Board of Trustees is comprised of City and

Union representatives and makes the final determination. (See

id. € 142.) While the Pension Board of Trustees cannot change

the 1-B Medical Board’s determination on whether a firefighter

is permanently disabled, it can overrule the 1-B Medical Board’s

recommendation on the cause of the disability. (See id. { 143.)

On April 7, 2017, the BIT requested that a hold be placed on any

of McGrath’s existing or future retirement applications because

of the ongoing adjudication arising from Arroyo’s substantiated

FDNY EEO complaint. (See id. #4 150-52.) On February 16, 2018,

the day after McGrath’s retirement became effective, this hold

was lifted and he started receiving his non-disability pension ap-

proximately fifteen days later. (See id. (§ 155-57.) On April 4,

2018, the 1-B Medical Board considered his application for disa-

bility payments for the first time. (See id. € 163.) As to his right

knee and spinal injuries, the 1-B Medical Board found that while

he was considered “permanently disabled” and thus unfit for

duty, his disability was caused by chronic degenerative diseases,

rather than a 2016 slip and fall or any other service-related ac-

tivities. (See id. 19 165-66, 183-84.) The 1-B Medical Board also

denied his application with respect to his PTSD, finding that alt-

hough he may have had symptoms in the past, he was “not

permanently disabled due to a psychological illness.” (See id. 44

179-80.) Accordingly, the 1-B Medical Board recommended to

the Pension Board of Trustees that McGrath receive ordinary dis-

ability payments, rather than accident disability. (See id. | 167,

184.) On June 27, 2018 the Pension Board of Trustees reviewed

McGrath’s case and directed that the 1-B Medical Board review a

statement from McGrath dated June 19, 2018 and additional

medical documentation from a 2002 magnetic resonance imag-

ing (“MRI”) exam of his spinal injury. (See id. {4 185-86.) On

September 14, 2018, the 1-B Medical Board reviewed his appli-

cation a second time. (See id. 44 187.) The 1-B Medical Board

reaffirmed its earlier decision, finding that McGrath’s MRI rec-

ords supported its finding of a degenerative spinal condition. (See

id. {{ 190, 192-93.) The 1-B Medical Board reviewed McGrath’s

case again on February 6, 2019 and February 8, 2019, but did

not change its initial determination. (See id. {f 198, 203, 204,

209.) On April 11, 2019, McGrath’s attorney sent the Pension

Board of Trustees a letter and memorandum further asserting

McGrath’s entitlement to a disability pension. (See id. 4 212.) On

April 24, 2019, the Pension Board of Trustees reviewed

McGrath’s case again and directed the 1-B Medical Board to re-

view the letter from McGrath’s attorney and the minutes from the

Pension Board of Trustees’ April 24, 2019 meeting. (See id. 4

213-14.) On June 19, 2019, the 1-B Medical Board met and con-

cluded that “there [was] still no new medical evidence that

would lead [them] to modify [their] findings in this case.” (See

id. {7 216-21.) On June 21, 2019, the 1-B Medical Board met

again to review a letter from McGrath’s attorney but again con-

cluded that his spinal injuries were “causally related to chronic

degenerative disease.” (See id. {{ 222, 229-30.)

On November 7, 2019, after a fifth review of McGrath’s case, and

an additional interview and medical examination of McGrath fo-

cusing on McGrath’s respiratory issues, the 1-B Medical Board

recommended to the Pension Board of Trustees that McGrath be

granted a disability pension for 9/11-related upper respiratory

tract disease, noting that his condition had worsened since its

previous evaluation of McGrath. (See id. 44 235-41). On Decem-

ber 20, 2019, the Pension Board of Trustees approved McGrath’s

service-incurred disability retirement. (See id. € 242.) McGrath

started receiving payments in early 2020 and also received back

payments retroactive to the date of his retirement in February

2018. (See id. 49 243-44.)

B. Procedural Background

On March 15, 2017, McGrath commenced this action against

Marilyn Arroyo, Steven Russo, James Leonard, Daniel Nigro,

Mayor Bill DeBlasio, the FDNY, and the City, alleging racial dis-

crimination and retaliation under federal, state, and local laws,

violation of his free speech rights, and several tort and contract

claims. (See generally Compl. (Dkt. 1).) On December 5, 2017,

Defendants filed their fully-briefed motion to dismiss the Com-

plaint. (See First Mot. to Dismiss (Dkt. 24); Opp’n to First Mot. to

Dismiss (Dkt. 26); Reply in Supp. of First Mot. to Dismiss (Dkt.

27).) On August 3, 2018, McGrath filed an Amended Complaint.

(See generally Am. Compl. (Dkt. 32).) On February 15, 2019, de-

fendants filed their fully-briefed motion to dismiss the Amended

Complaint (Second Mot. to Dismiss (Dkt. 39); Opp’n to Second

Mot. to Dismiss (Dkt. 42); Reply in Supp. of Second Mot. to Dis-

miss (Dkt. 44).) On August 8, 2019, the court dismissed all

10

claims against defendants except for “(1) Title VII retaliation

against FDNY and the City, (2) [NYSHRL] and NYCRL retaliation

against FDNY and the City, and (3) NYCHRL retaliation claim

against FDNY and the City.” See McGrath, 2019 WL 3754459, at

*18.

On January 3, 2024, the court denied McGrath’s motions

for leave to amend his complaint for a second time as futile. (See

Jan. 3, 2024 Order.) On February 9, 2024, the court denied

McGrath’s motion for reconsideration of the court’s January 3,

2024 order. McGrath v. Arroyo, No. 17-CV-1461 (NGG) (JRC),

2024 WL 531251, at *4 (E.D.N.Y. Feb. 9, 2024).

Pending before the court is Defendants’ fully-briefed mo-

tion for summary judgment as to McGrath’s remaining retaliation

claims. (See Mot.; Opp’n; Reply.)

Il, LEGAL STANDARD

To obtain Rule 56(a) relief, movants must “identify[] each claim

or defense — or the part of each claim or defense — on which sum-

mary judgment is sought.” Fed. R. Civ. P. 56(a). Movants are

entitled to summary judgment if they “show[] that there is no

genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Id.; Kemp v. Regeneron Pharms.,

Inc., 117 F.4th 63, 68 (2d Cir. 2024). A fact is material when it

“might affect the outcome of the suit under the governing law,”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a

dispute of fact is genuine “if the evidence is such that a reasona-

ble jury could return a verdict for the nonmoving party,” Gayle v.

Gonyea, 313 F. 3d 677, 682 (2d Cir. 2002).° “For a genuine dis-

pute regarding a material fact to warrant a jury trial, there must

be sufficient evidence supporting the claimed factual dispute ‘to

require a jury or judge to resolve the parties’ differing versions of

5 When quoting cases, unless otherwise noted, all citations and internal quota-

tion marks are omitted, and all alterations are adopted.

11

the truth at trial.” Goldberg v. City of New York, No. 19-CV-4241

(GBD) (KHP), 2021 WL 4482149, at *3 (S.D.N.Y. Sept. 30,

2021) (quoting Anderson, 477 U.S. at 249). However, “[w]hen

no rational jury could find in favor of the nonmoving party be-

cause the evidence to support its case is so slight, there is no

genuine issue of material fact and a grant of summary judgment

is proper.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22

F.3d 1219, 1224 (2d Cir. 1994).

“The movant carries the burden of proving that no genuine fac-

tual dispute exists.” Arce v. Sovereign Indus. Grp. Inc., No. 19-CV-

489 (NGG) (JRC), 2025 WL 102449, at *3 (E.D.N.Y. Jan. 15,

2025) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986)). Even where, as here, there are cross-motions for sum-

mary judgment, “each movant has the burden of presenting

evidence to support its motion that would allow the district court,

if appropriate, to direct a verdict in its favor.” Barhold v. Rodri-

guez, 863 F.2d 233, 236 (2d Cir. 1988). In reviewing a summary

judgment motion, the court “resolve[s] all ambiguities and

draw[s] all permissible factual inferences in favor of the party

against whom summary judgment is sought.” Patterson v. Cnty.

of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). However, the court

need not draw any inference that is “blatantly contradicted by

the record, so that no reasonable jury could believe it.” Scott v.

Harris, 550 U.S. 372, 380 (2007).

To defeat a motion for summary judgment, the nonmoving party

must provide “hard evidence,” D’Amico v. City of New York, 132

F.3d 145, 149 (2d Cir. 1998), “from which a reasonable infer-

ence in [its] favor may be drawn,” Binder & Binder PC y.

Barnhart, 481 F.3d 141, 148 (2d Cir. 2007). Parties “cannot rely

on inadmissible hearsay in opposing a motion for summary judg-

ment.” Burlington Coat Factory Warehouse Corp. v. Esprit De

Corp., 769 F.2d 919, 924 (2d Cir. 1985). The court relies on “the

12

pleadings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits” to determine whether

summary judgment is appropriate. Ford y. Reynolds, 316 F.3d

351, 354 (2d Cir. 2003); see also Fed. R. Civ. P. 56(c).

III. DISCUSSION

Title VII, the NYSHRL, the NYCRL, and the NYCHRL prohibit em-

ployers from retaliating against employees for opposing

discriminatory employment practices. The court addresses

McGrath’s claims brought under federal and state law together,

then turns to his claim brought under New York City law.

A. Applicable Law

1. Title VI, NYSHRL, and NYCRL

“Title VII forbids an employer from discriminating against an em-

ployee because the employee ‘has opposed any practice made an

unlawful employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated in any man-

ner in any investigation, proceeding, or hearing under this

subchapter.” Farmer v. Shake Shack Enters., LLC, 473 F. Supp. 3d

309, 330 (S.D.N.Y. 2020) (quoting 42 U.S.C. § 2000e-3(a)). “The

NYSHRL similarly makes it unlawful for an employer to retaliate

or discriminate against an employee because [he] ‘has opposed

any practices forbidden under this article or because. . . [he] has

filed a complaint, testified or assisted in any proceeding under

this article.” Id. (quoting N.Y. Exec. Law § 296(7)). “[Flacts suf-

ficient to sustain a cause of action under [NYSHRL 8] 296 will

support a cause of action under [S]ection 40-c of the [NYCRL].”°

Hyman v. Cornell Univ., No. 15-CV-792 (FJS) (ATB), 2017 WL

1194231, at *10 (N.D.N.Y. Mar. 30, 2017), affd, 721 F. App’x 5

(2d Cir. 2017).

6 Section 40-d of the NYCRL creates a cause of action based on violation of

Section 40-c. McGrath, 2019 WL 3754459, at *13 n.6.

13

At summary judgment, retaliation claims under Title VII and the

NYSHRL are analyzed under the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir.

2015) (applying McDonnell Douglas framework to Title VII

claim); Tafolla v. Heilig, 80 F.4th 111, 125 (2d Cir. 2023) (apply-

ing McDonnell Douglas framework to NYSHRL claim). “Under the

first step of the McDonnell Douglas framework, the plaintiff must

establish a prima facie case of retaliation by showing 1) partici-

pation in a protected activity; 2) the defendant’s knowledge of

the protected activity; 3) an adverse employment action; and 4)

a causal connection between the protected activity and the ad-

verse employment action.” Zann Kwan v. Andalex Grp. LLC, 737

F.3d 834, 844 (2d Cir. 2013). The Second Circuit has reasoned

that an adverse employment action is a “materially adverse

change in the terms and conditions of employment.” Weeks v.

New York State Div. of Parole, 273 F.3d 76, 85 (2d Cir. 2001)

(noting that indicators of a materially adverse change are “termi-

nation of employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a material loss of bene-

fits, significantly diminished material responsibilities, or other

indices unique to a particular situation”) (abrogated on other

grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101

(2002)). The plaintiff must show that the retaliation was a “but-

for” cause for the adverse employment action. See Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). The burden

of production then shifts to the employer to “articulate some le-

gitimate, non-retaliatory reason for the employment action.”

Zann Kwan, 737 F.3d at 845. Finally, the plaintiff must then show

that defendant’s non-retaliatory reason for its conduct “is a mere

pretext for retaliation.” Id.

14

2. NYCHRL

Section 8-107(7) of the NYCHRL prohibits employers from “re-

taliat{ing] or discriminat[ing] in any manner against any person

because such person has .. . opposed any practice forbidden un-

der this chapter.” N.Y.C. Admin. Code § 8-107(7). “To prevail on

a retaliation claim under the NYCHRL, the plaintiff must show

that [he] took an action opposing [his] employer’s discrimina-

tion, and that, as a result, the employer engaged in conduct that

was reasonably likely to deter a person from engaging in such

action.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715

F.3d 102, 112 (2d Cir. 2013) (citing Albunio v. City of New York,

16 N.Y.3d 472, 479 (N.Y. 2011) and Williams v. New York City

Hous. Auth., 872. N.Y.S.2d 27, 33-34 (1st Dep’t 2009).)

The Second Circuit has emphasized that “courts must analyze

NYCHRL claims separately and independently from any federal

and state law claims.” Mihalik, 715 F.3d at 109, 110 n.8 (noting

that “[i]t is unclear whether, and to what extent, the McDonnell

Douglas burden-shifting analysis has been modified for NYCHRL

claims” and declining to resolve the issue). New York courts have

broadly construed the NYCHRL’s retaliation provision. See Al-

bunio, 16 N.Y.3d at 477-78 (noting that Section 8-107(7) must

be construed broadly in favor of plaintiffs “to the extent that such

a construction is reasonably possible”); see also Williams, 872

N.Y.S.2d at 34 (“[NJo challenged conduct may be deemed non-

retaliatory before a determination that a jury could not

reasonably conclude from the evidence” that the challenged con-

duct was reasonably likely to deter the NYCHRL plaintiff from

engaging in protected activity).

B. The FDNY is not a suable entity

As an initial matter, the court grants Defendants’ motion for sum-

mary judgment as to McGrath’s claims against the FDNY because

the FDNY is not a suable entity. (See Mot. at 21 (arguing that

McGrath’s claims against the FDNY should be dismissed).) Under

15

the New York City Charter, “all actions and proceedings for the

recovery of penalties for the violation of any law shall be brought

in the name of the City of New York and not in that of any agency,

except where otherwise provided by law.” N.Y. City Charter ch.

17, § 396. Accordingly, the court dismisses McGrath’s claims

against the FDNY because the FDNY lacks the capacity to be sued.

See Ximenes v. George Wingate High Sch., 516 F.3d 156, 160 (2d

Cir. 2008) (“Section 396 of the [New York City] Charter has been

construed to mean that New York City departments, as distinct

from the City itself, lack the capacity to be sued.”) (per curiam);

Fahey v. City of New York, No. 10-CV-4609 CLG) (MDG), 2012

WL 413990, at *5 (E.D.N.Y. Feb. 7, 2012) (granting summary

judgment as to all claims against the FDNY because it is not a

suable entity) (collecting cases).

C. Application

1. Title VII, NYSHRL, NYCRL

a. McGrath’s prima facie retaliation case

The parties agree that McGrath engaged in protected activity

when he filed his Agency Complaints, and when he filed his Com-

plaint with this court. (Mot. at 5; Opp’n at 6.) Accordingly, his

earliest protected activity was when he filed his Agency Com-

plaints on May 16, 2016 alleging that he was being discriminated

against because of his race and gender. (See Pl.’s 56.1 Stmt. { 45;

Defs.’ 56.1 Stmt. 49 66, 69.)

Defendants were made aware of the Agency Complaints on the

day when McGrath submitted them because he physically ap-

peared at the FDNY’s EEO Office to submit his FDNY EEO

complaint, and also informed the office that he had filed an ex-

ternal complaint. (See Nguyen Mem.)

McGrath argues that he suffered from several adverse employ-

ment actions after he submitted his Agency Complaints and after

he filed his Complaint with this court on March 15, 2017. These

16

actions concern Defendants’ handling of McGrath’s FDNY EEO

complaint, Arroyo’s FDNY EEO complaint, McGrath’s disability

pension application, McGrath’s award at Medal Day, and Defend-

ants’ decision to station Arroyo at a location near where McGrath

frequents to pick up his medications. The court addresses each of

these in turn.

b. McGrath’s FDNY EEO complaint

McGrath points to the FDNY EEO Office’s failure to investigate

his FDNY EEO complaint as retaliatory. (See Opp’n at 8-9 (citing

Arkorful v. N.Y.C. Dep’t of Educ., 712 F. Supp. 3d 336 (E.D.N.Y.

2024)).) However, Arkorful is inapposite. In Arkorful, the court

concluded that the New York City Department of Education’s fail-

ure to investigate plaintiffs 2019 Office of Equal Opportunity

(“OEO”) complaints following his 2016 complaint with the US

EEOC was an adverse employment action. 712 F. Supp. 3d at

357-58 (“Failure to investigate a complaint can constitute an ad-

verse employment action for purposes of a retaliation claim if the

complaint is distinct from another separate, protected activity.”)

(emphasis added) (citing Delisi v. Nat’l Ass’n. of Professional

Women, Inc., 48 F. Supp. 3d 492, 497 (E.D.N.Y. 2014). In both

Arkorful and Delisi, the defendants failed to investigate em-

ployee-plaintiffs’ complaints to defendants because plaintiffs had

made earlier, separate complaints to the US EEOC. 712 F. Supp.

3d at 357-58; 48 F. Supp. 3d at 497. However, unlike the plain-

tiffs in Arkorful and Delisi McGrath never filed a “subsequent”

complaint with the FDNY EEO Office after he filed his complaints

with the US EEOC or NYSDHR. 712 F. Supp. 3d at 358 (noting

that plaintiffs “2019 OEO Complaints contained allegations of

subsequent discriminatory conduct that took place after the filing

of the [US] EEOC complaint and the filing of this lawsuit”) (em-

phasis added). Furthermore, in Arkorful the court found that the

defendant did not offer a legitimate reason for its decision not to

investigate or explain the OEO’s “purported” policy requiring that

internal complaints be closed when external complaints are filed

17

based on the same facts. Id. Here, Defendants have entered their

policy into the record and supplied evidence explaining its appli-

cation to McGrath’s FDNY EEO complaint. (See FDNY EEO Policy

(Dkt. 140-1) at 15 (“Complaints filed with agencies outside

FDNY ... that are based on the same facts and circumstances as

a complaint filed with the FDNY EEO Office shall be forwarded

to the Deputy Commissioner of Legal Affairs and generally, the

General Law Unit, for handling, defending or resolving any

claims filed with the external agency.”); Nguyen Mem. (“During

the May 16 intake, McGrath indicated to the EEO Office that he

had filed an external complaint. . .. As such, the instant case is

administratively closed and has been referred to the General Law

Unit.”).) Accordingly, Defendants’ discontinuation of their inves-

tigation of McGrath’s FDNY EEO complaint was not an adverse

employment action.

c. Arroyo’s FDNY EEO complaint

The court notes at the outset that when an employer “undertakes

a fact-finding investigation” in response to a complaint of wrong-

ful conduct, the Second Circuit has cautioned lower courts

against finding the investigation itself to be retaliatory because

“the law must give breathing room for such investigations to be

carried out.” Cox v. Onondaga Cnty. Sheriffs Dep’t, 760 F.3d 139,

146-47 (2d Cir. 2014) (collecting cases). However, the Cox court

also noted that “an employer’s investigation may constitute a

cognizable retaliatory action if carried out so as to result in a hos-

tile work environment, constructive discharge, or other

employment consequences of a negative nature, or if conducted

in such an egregious manner as to ‘dissuade a reasonable worker

from making or supporting a charge of discrimination.” Id. at

147 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 57 (2006)). Having already dismissed McGrath’s hostile work

environment, constructive discharge, discrimination, First

Amendment free speech, breach of contract, tortious interference

with a contract, and intentional infliction of emotional distress

18

claims, see generally McGrath, 2019 WL 3754459. Defendants’ ar-

gument that their investigation of Arroyo’s FDNY EEO complaint

is not an adverse employment action is persuasive, (Reply at 3).”

It is undisputed that McGrath was placed under oath as part of

an FDNY EEO Office interview conducted in connection with Ar-

royo’s FDNY EEO complaint in July 2016. (See Pl.’s 56.1 Stmt. 4

50.) While the court takes notice that the interviews that the

FDNY conducted of other witnesses as part of that investigation

did not have court reporters present and were not conducted un-

der oath, (see Hilit Tolani Deposition Transcript 87:13-89:22),

the court credits Defendants’ argument that McGrath “fails to cite

any evidence aside from his own testimony to support his novel

contention that the EEO Office cannot conduct interviews under

oath, and in fact no provision of the EEO Policy prohibits such

interviews,” (Reply at 4 (citing FDNY EEO Policy)). Indeed, the

section of the FDNY EEO Policy titled “Interviews and the Obli-

gation to Cooperate” describes interviewees’ right to have a

union representative or attorney present during interviews and

does not proscribe conducting sworn interviews. (See FDNY EEO

Policy at 16-17.) There is nothing inherently adverse about being

interviewed under oath as part of a sexual harassment investiga-

tion. Accordingly, the FDNY EEO Office’s sworn interview of

McGrath was not an adverse employment action.®

7 McGrath’s argument that the FDNY “suddenly revived” its investigation of

Arroyo’s FDNY EEO complaint after he filed his FDNY EEO complaint is unper-

suasive. (See Opp’n at 9-10). The FDNY EEO Office conducted multiple

interviews before McGrath filed his complaints on May 16, 2016: McGrath on

January 5, 2016, and Arroyo on April 6, 2015. (See Nguyen Mem.; Final Inves-

tigative Memorandum (“Final Invest. Mem.”) (Dkt. 135-10 at ECF pp. 1-12) at

ECF p. 3 nn. 1, 2).)

8 McGrath also argues that Defendants “harassed” McGrath by calling McGrath

in for a BIT disciplinary hearing while he was on medical leave. (See Opp’n at

12-13; PL’s 56.1 Stmt. 4 105 (citing McGrath Deposition Transcript (“McGrath

Dep. Tr.”) (Dkt. 140-12).)) McGrath testified at his deposition that it was

19

Finally, McGrath asserts that the FDNY EEO Office’s substantia-

tion of Arroyo’s claims against him and the subsequent four

charges that arose from the referral to BIT were an adverse em-

ployment action.? On September 9, 2016, BIT served McGrath

with four charges under the FDNY’s internal rules and regula-

tions relating to sexual harassment, making false statements, and

general conduct. (See Pl.’s 56.1 Stmt. { 58; Defs.’ 56.1 Stmt. 4

61.) Courts have opined that disciplinary charges resulting from

an investigation may qualify as retaliation. See e.g., McGrath,

2019 WL 3754459, at *11; Monclova v. City of New York, No. 5-

CV-3164 (DGT), 2008 WL 822117, at *7 (E.D.N.Y. Mar. 26,

2008) (“[D]isciplinary charges against plaintiffs are... an ad-

verse employment action for the purpose of making out a prima

facie case of retaliation. . . . [Because] charges of this sort can

have significant future consequences for employment and could

reasonably dissuade an employee from raising a claim of discrim-

ination.”). Accordingly, the court finds that the FDNY’s

against FDNY policy to require him to appear for an interview or hearing while

he was on medical leave. (See McGrath Dep. Tr. 97:18-22, 106:14-17.) How-

ever, McGrath “cites no evidence that attempting to hold a disciplinary hearing

while he was on medical leave violated any FDNY rule or regulation,” (Reply

at 5), and McGrath does not otherwise show how this constitutes a “materially

adverse change in the terms and conditions of [his] employment,” see Weeks,

273 F.3d at 85; Cox, 760 F.3d at 147.

° McGrath also asserts that edits made to the FDNY EEO Office memorandum

recommending the case to BIT for discipline exacerbated that harm. (See Opp’n

at 10-11 (citing Nigro Mem. and Draft Nigro Mem.).) Specifically, McGrath

points to the Draft Nigro Memorandum’s recommendation section which notes

McGrath’s 37 years of service “with an unblemished record” and does not in-

clude a referral to BIT for discipline, (see Draft Nigro Mem. at 11), whereas the

Nigro Memorandum dated 10 days later does not reference McGrath’s record

in the recommendation section and includes a referral to BIT for discipline,

(see Nigro Mem. at ECF p. 16). However, McGrath provides no evidentiary

support for his assertion that the draft report was revised “after [it] was re-

viewed, presumably by the FDNY Commissioner.” (See Opp’n at 11.)

Nevertheless, the Draft Nigro Memo has in-line comments and tracked changes

from its authors, (see Draft Nigro Mem. at 3), demonstrating that it was likely

not the FDNY EEO Office’s final position.

20

substantiation of Arroyo’s claims and the subsequent charges that

arose from the referral to BIT were an adverse employment ac-

tion.

However, to establish his prima facie case of retaliation, McGrath

must also show that there was “a causal connection between

[his] protected activity and [Defendants’] adverse employment

action.” Zann Kwan, 737 F.3d at 844; Nassar, 570 U.S. at 362

(requiring a showing of “but-for” causation). McGrath’s only the-

ory of causation is the temporal proximity between Defendants’

alleged adverse employment actions and his protected activity.

(See Opp’n at 16-19.) Specifically, McGrath notes that immedi-

ately after McGrath informed Arroyo’s supervisor Russo about

the allegations McGrath had heard about Arroyo’s conduct in the

Firehouse steam room, he was “banished” to Queens Borough

Command, (Opp’n at 17; Final Invest. Mem. at ECF p. 10 (noting

that McGrath was “detailed to Queens Borough Command in the

beginning of April 2015”).) However, this cannot support

McGrath’s causation argument because McGrath was not engag-

ing in a protected activity when he reported Arroyo’s alleged

sexual affairs to her supervisor. Complaining of a colleague’s al-

leged sexual affairs is not a protected activity. As explained supra,

McGrath’s earliest protected activity was when he submitted his

Agency Complaints on May 16, 2016. (See Nguyen Mem.) Sealy

v. State Univ. of N.Y.at Stony Brook, 408 F. Supp. 3d 218, 227

(E.D.N.Y. 2019) (“It is axiomatic that for any conduct to be

deemed actionable as retaliation, it must occur after the pro-

tected activity.”) (emphasis added), affd, 834 F. App’x 611 (2d

Cir. 2020).

Next, McGrath points to the fact that the FDNY EEO Office inter-

viewed him again in connection with Arroyo’s complaint in July

21

2016,!° almost two months after he filed his FDNY EEO com-

plaint and despite having already interviewed him on January 5,

2016. (See Opp’n at 17-18; Final Invest. Mem. at ECF p. 3 n. 2).

Indeed, the FDNY interviewed several people in connection with

Arroyo’s complaint after McGrath filed his FDNY EEO complaint,

including Arroyo, O’Hal, and Chief Gary Rocco. (Final Invest.

Mem. at ECF p. 3 n. 1, p. 10 n. 15.) On August 15, 2016, the

FDNY substantiated Arroyo’s complaint against McGrath, (see Ni-

gro Mem. at ECF p. 13.), and three weeks later, the BIT served

McGrath with disciplinary charges under the FDNY’s internal

rules and regulations, (see Pl.’s 56.1 Stmt. 4 58; Defs.’ 56.1 Stmt.

{ 61). That this all happened within a five-month period after

McGrath filed his FDNY EEO compliant does not create a suffi-

cient causal link because “[t]emporal proximity alone is

insufficient to defeat summary judgment.” Zann Kwan, 737 F.3d

at 847. Further, the FDNY EEO Office’s investigation of Arroyo’s

complaint predated McGrath’s FDNY EEO complaint. (Compare

Nguyen Mem. (McGrath made his FDNY EEO complaint on May

16, 2016) with Final Invest. Mem. at ECF p. 3 nn. 1 (Arroyo in-

terviewed in connection with her complaint on April 6, 2015), 2

(McGrath interviewed in connection with Arroyo’s complaint on

January 5, 2016).) Accordingly, McGrath has not shown that

“but-for” his protected activities the FDNY would not have sub-

stantiated Arroyo’s complaint against him or brought disciplinary

charges. See Nassar, 570 U.S. at 362.

d. McGrath’s disability pension application

McGrath also claims that the FDNY’s placement of his disability

pension and retirement application on hold and its numerous

subsequent denials of his disability pension constitute adverse

10 The parties agree that McGrath’s second interview took place in July 2016,

but dispute whether it took place on July 6, 2016 or July 8, 2016. (Defs.’ 56.1

Reply { 50.) The court need not and does not resolve this immaterial factual

dispute.

22

employment actions. (Opp’n at 15-16.) The court looks to the

undisputed record. As part of the BIT’s disciplinary proceedings

concerning McGrath, on April 7, 2017, the BIT informed the Di-

rector of the Pension Board of Trustees and other relevant

officers that McGrath was “the subject of a pending BIT case” and

requested that a hold be placed on any existing or new retirement

applications. (Defs.’ 56.1 Stmt. 150-52.) On January 16, 2018,

McGrath filed for retirement and a Service Incurred Disability

. pension. (See id. 153-54.) On February 16, 2018, the day after

McGrath’s retirement became effective, the hold on his retire-

ment application was lifted and McGrath started receiving a non-

disability pension. (See id. 4 156-57.)

However, between April 4, 2018 and November 7, 2019, the 1-B

Medical Board and the Pension Board of Trustees denied his dis-

ability pension by concluding multiple times that McGrath’s

physical condition was not a result of his FDNY service, and he

did not suffer from PTSD, even if he may have previously had

symptoms. (See id. €{ 163, 165-67, 179-80, 183-86, 190, 192-93,

198, 203-204, 209, 213-214, 222, 229-30.) During this period,

McGrath retained an attorney to advocate on his behalf before

the relevant boards. (See id. 212, 222, 229-30.) On November

7, 2019, after an additional interview and medical examination

of McGrath focused on McGrath’s respiratory issues, the 1-B

Medical Board recommended to the Pension Board of Trustees

that McGrath be granted additional accidental disability retire-

ment for his 9/11-related upper respiratory tract disease, noting

that his condition had worsened since its previous evaluation of

McGrath. (See id. 239-41.) The Pension Board of Trustees ap-

proved McGrath’s Service Incurred Disability pension the

following month, and McGrath started receiving payments in

early 2020, including back payments retroactive to the date of

his retirement. (See id. {| 242-44.)

23

McGrath’s claim that he suffered an adverse employment action

because his disability pension application was placed on hold and

denied several times before ultimately being approved is unavail-

ing. While McGrath contends that “there are no laws, rules or

regulations that state holds are appropriate for individuals seek-

ing a disability pension with charges pending,” (see Pl.’s 56.1

Counter Stmt. { 149), the evidence demonstrates that there was

a longstanding policy in place that explains why McGrath’s disa-

bility pension application was put on hold, (Defs.’ 56.1 Stmt. 4

149). Both the Deputy Director and Assistant Commissioner of

BIT testified that McGrath’s disability pension application was

put on hold pursuant to BIT’s longstanding policy.'! (See Joseph

Palazzolo Deposition Transcript (Dkt. 135-32) 117:23-118:3

(“[W]henever a fire member is served with charges, if there are

any allegations of misconduct we place a pension hold on every

single member.”), 118:14-23 (“If its a disability retirement

where they’re receiving a disability pension, the Department will

place what’s known as a pension hold on them while an investi-

gation is pending, charges are pending, and my understanding is

while that pension hold is in place, the member can’t be seen by

the 1-B Board, which would be reviewing their application for a

disability retirement.”); Robert Wallace Deposition Transcript

(Dkt. 135-24) 58:11-19 (“So if a fire fighter or an EMT seeks to

retire through normal retirement process, the Department would

have 30 days by which to effectuate any charges or discipline if

the case may be within that 30-day period. However, the Depart-

ment could place a hold on disability applications, and did as a

standard operating procedure.”).) Accordingly, this factual dis-

pute on whether there was a policy in place does not require a

jury to “resolve the parties’ differing versions of the truth at trial.”

Goldberg, 2021 WL 4482149, at *3. Because Defendants were

11 When agency practices are “wide-spread” and “long-standing,” they can

“constitute unwritten policies or customs.” See Rounds v. Thompson, No. 9:12-

CV-953 (GLS) (TWD), 2013 WL 3187074, at *2 (N.D.N.Y. June 20, 2013).

24

acting pursuant to FDNY policy and the hold was ultimately

lifted, Defendants’ placement of McGrath’s disability pension ap-

plication on hold was not an adverse employment action.

McGrath likewise fails to convince the court that the 1-B Medical

Board and Pension Board of Trustees’ initial denials of his disa-

bility pension after the hold was lifted constitute an adverse

employment action. “In determining whether a plaintiff suffered

‘adverse consequences’ after a rescinded [determination by plain-

tiffs employer], courts have focused on whether the defendant

restored plaintiff to [his] previous. . . benefits.” Shultz v. Congre-

gation Shearith Israel of the City of New York, 202 F. Supp. 3d

411, 418 (S.D.N.Y. 2016), affd in part, vacated in part, remanded

sub nom. Shultz v. Congregation Shearith Israel of City of New

York, 867 F.3d 298 (2d Cir. 2017). Because McGrath ultimately

received a disability pension, including back payments dating to

when he first retired, (see Defs.’ 56.1 Stmt. {4 242-44), his initial

denials also do not qualify as adverse employment actions, see

Carvalho v. Associated Brands, Inc., No. 15-CV-72 (RJA) (MJR),

2016 WL 8709809, at *11 (W.D.N.Y. May 13, 2016) (reasoning

that there was no adverse employment action because defendant

provided disability carrier with the documentation that plaintiff

requested and submitted evidence that “plaintiff was granted

both short and long term disability benefits”), report and recom-

mendation adopted, No. 15-CV-72 (MAT), 2017 WL 405403

(W.D.N.Y. Jan. 31, 2017), affd, 707 F. App’x 742 (2d Cir. 2017).

e. Medal Day

McGrath’s receipt of a Class A award in place of the Class III

award for which he was originally recommended does not con-

stitute an adverse employment action. McGrath has not put

forward any evidence of improprieties within the Board of Merit’s

vote taken on December 15, 2016 that could have caused the

withholding of the more prestigious Class III award. (See Opp’n

at 13-14.) McGrath’s only potentially cognizable adversity is

25

within the FDNY’s decision to rescind his invitation to be honored

at Medal Day.

On December 15, 2016, the Board of Merit awarded McGrath a

total of 21 points and voted to give McGrath a Class A award for

his rip tide rescue. (See Defs.’ 56.1 Stmt. 19 114, 118.) The FDNY

captain that coordinated the Board of Merit meeting on that day

testified that to determine which awardees would receive a

medal on Medal Day, the FDNY has “this point system because

we only give out... roughly 40 medals I want to say. So we take

the highest, 40 points, and work our way down.” (Raymond Ar-

cos Deposition Transcript (“Arcos Dep. Tr.”) (Dkt. 140-7) 37:6-

10.) While the parties dispute whether Defendants invited

McGrath to attend Medal Day, (see Defs.’ 56.1 Stmt. § 119), it is

undisputed that Defendants asked McGrath to complete a “medal

day winner bio form” on March 16, 2017, (see Defs.’ 56.1 Reply

{ 77; Mar. 16, 2017 Email from Raymond Arcos to Michael

McGrath (Dkt. 140-21)). FDNY emails from March 27, 2017

where staff members were planning the upcoming Medal Day

ceremony note that “[Battalion Commander] McGrath” was “the

person not getting the medal,” suggesting that the FDNY decided

to rescind McGrath’s Medal Day invitation. (See Mar. 27, 2017

Emails Between Thomas Coleman and Janet Kimmerly (Dkt.

140-23) at ECF pp. 3-4.) McGrath invited family members from

across the United States to witness the FDNY honor him during

the Medal Day ceremony where the “Mayor presents award and

medal recipients with [their awards] recognizing the heroic acts

performed.” (See Pl.’s 56.1 Stmt. 99 75-76.) While the court rec-

ognizes McGrath’s disappointment with the FDNY for not

recognizing him at Medal Day, the court finds that this event

does not constitute a “materially adverse change in the terms and

conditions of [his] employment.” Weeks, 273 F.3d at 85 (reason-

ing that sufficiently adverse changes include “a termination of

employment, a demotion evidenced by a decrease in wage or sal-

ary, a less distinguished title, a material loss of benefits, [or]

26

significantly diminished material responsibilities”). The court

finds that the alleged rescission of his invitation was not an ad-

verse employment action.

f. Arroyo Reassignment

McGrath asserts that the fact that Arroyo was later stationed by

his home in Far Rockaway, Queens near the pharmacy where he

picks up his medicine was retaliatory because it increased the

chance of him running into her. (See Pl.’s 56.1 Stmt. {111 (citing

McGrath Dep. Tr.).) Defendants dispute this assertion, and the

only evidence McGrath cites in support of this position is his own

deposition testimony, which merely restates this otherwise un-

corroborated theory as an explanation for his retirement. (See

McGrath Dep. Tr. 83:8-84:6.) McGrath has failed to provide

“hard evidence” supporting retaliation on this ground that would

permit the court to draw an inference in his favor. See D'Amico,

132 F.3d at 149. Accordingly, the FDNY’s alleged reassignment

of Arroyo to a station near McGrath was not an adverse employ-

ment action.

In sum, McGrath has failed to state a prima facie case of retalia-

tion. Thus, the court need not proceed to the next step of the

McDonnell Douglass burden-shifting analysis. See Zhengfang

Liang v. Cafe Spice SB, Inc., 911 F. Supp. 2d 184, 206-207

(E.D.N.Y. 2012) (“Because plaintiff fails to establish a prima facie

case, the Court need not address the second two steps of the

McDonnell Douglas test.”). Nevertheless, the court turns to assess

the evidentiary support for Defendants’ argument that the

FDNY’s actions were supported by legitimate reasons.

27

g. Defendants’ explanation’?

Defendants respond to McGrath’s allegation that they failed to

investigate his FDNY EEO complaint by pointing to the FDNY’s

EEO Policy. (Mot. at 11; Defs.’ 56.1 Stmt. 4 72 (citing FDNY EEO

Policy).) The FDNY EEO Policy provides for FDNY EEO com-

plaints to be administratively closed and transferred to the

General Law Unit when complainants file complaints with exter-

nal agencies. (See FDNY EEO Policy at 15.) The FDNY applied

that policy when it administratively closed McGrath’s complaint

upon learning that he had also filed complaints based on the

same facts and circumstances with the NYSDHR and US EEO.

(See Nguyen Mem.) Accordingly, the court finds this to be a “le-

gitimate, non-retaliatory reason” for the FDNY’s administrative

closure of McGrath’s EEO complaint. See Zann Kwan, 737 F.3d at

845.

12 McGrath argues that Defendants have offered inadmissible documents in

support of their motion, specifically arguing that the Arroyo EEO Complaint

and an attorney-drafted position statement submitted to the NYSDHR in re-

sponse to McGrath’s NYSDHR complaint are hearsay and not based on

personal knowledge. (See Opp’n at 4-5 (citing Arroyo EEO Complaint and

NYSDHR Position Statement (Dkt. 135-5 at ECF pp. 1-8) (attaching the FDNY

Policy Regarding Assignment and Transfer of Firefighter).)

The court rejects McGrath’s argument as to the Arroyo EEO Complaint because

it is being offered to establish that Arroyo made a complaint to the FDNY EEO

Office, not to establish the truth of the contents of the complaint itself. See

Anderson v. United States, 417 U.S. 211, 220 n. 8 (1974) (“Of course, evidence

is not hearsay when it is used only to prove that a prior statement was made

and not to prove the truth of the statement.”).

The court declines to consider the NYSDHR Position Statement as evidence

because it contains an FDNY attorney's written advocacy to the NYSDHR re-

butting McGrath’s discrimination complaint. Pretzantzin v. Holder, 736 F.3d

641, 651 (2d Gir. 2013) (“[T]he arguments of counsel are not evidence.”). The

court is permitted, however, to consider the FDNY Policy Regarding Assign-

ment and Transfer of Firefighter attached to the NYSDHR Position Statement.

(See FDNY Policy Regarding Assignment and Transfer of Firefighter (Dkt. 135-

5 at ECF pp. 10-12).) See Medina v. Donaldson, No. 10-CV-5922 (VMS), 2014

WL 1010951, at *10n. 14 (E.D.NLY. Mar. 14, 2014).

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Defendants similarly submit legitimate reasons for the substanti-

ation of Arroyo’s complaint against McGrath and the subsequent

disciplinary charges brought against McGrath. According to the

Final Investigative Memorandum, Arroyo alleged that McGrath

“spread[] rumors that she was having sex in the firehouse, t[old]

her that firefighters’ wives wanted her out of the firehouse, de-

mand[ed] that she transfer to a different FDNY facility, and

engag[ed] in other misconduct.” (Ud. at ECF p. 2.) As part of De-

fendants’ investigation into Arroyo’s complaint, the FDNY EEO

Office interviewed both McGrath and Arroyo twice, and inter-

viewed 12 other witnesses. (See Final Invest. Mem. at ECF p. 3.)

Based on this extensive investigation, the FDNY EEO Office de-

termined as follows:

[T]he evidence shows that it is more likely than not that:

McGrath and Arroyo spent time together after work hours in

anon-platonic manner; Arroyo advised McGrath that she did

not wish to purse a relationship; McGrath confronted Arroyo

about unsubstantiated rumors of sexual misconduct in the

workplace without addressing such alleged misconduct

within his, and Arroyo’s, chain of command; suggested

and/or threatened Arroyo with a transfer to a different sta-

tion; and recommended to Arroyo’s supervisors that she be

transferred to a different station. Viewing the totality of cir-

cumstances, such conduct constitutes sexual harassment in

violation of the EEO Policy.

dd. at ECF p. 11.) The FDNY EEO Office accordingly recom-

mended to Fire Commissioner Nigro that: (1) “Arroyo and

McGrath continue to be separated from working at the same lo-

cation;” (2) “McGrath be sent to EEO training and counseled by

the EEO Office;” and (3) the matter be “referred to [BIT] for ap-

propriate discipline.” (Nigro Mem. at ECF p. 16.) That referral

resulted in BIT bringing several charges against McGrath under

the FDNY’s internal rules and regulations. (See Pl.’s 56.1 Stmt. 4

29

58; Defs.’ 56.1 Stmt. { 61.) Courts of this Circuit have concluded

that “a finding that an employee engaged in sexual harassment

is a legitimate, non-discriminatory reason for discharging an ad-

verse employment action.” Randolph v. CIBC World Mkts., 1-CV-

11589 (RWS), 2005 WL 704804, at *14 (S.D.N.Y. Mar. 29,

2005) (collecting cases).

Although McGrath provides insufficient evidence to support his

prima facie retaliation case as it relates to Medal Day, the evi-

dence shows that the ultimate decision of who would be

recognized on that day always rested with the FDNY’s most sen-

ior leadership. (See Arcos Dep. Tr. 37:19-38:12, 40:3-8.) And the

Fire Commissioner testified that he reviewed the proposed list of

Medal Day awardees in accordance with the best interests of the

FDNY:

Q Getting back to the Medal Day, I believe it’s your testi-

mony that Chief McGrath was dis-invited from Medal Day

because of EEO substantiated conclusion; is that correct?

A Well, I don’t specifically recall any conversation, but... I

would think it would be my, and it is my opinion, that it was

not in the department’s best interest to have given someone

a medal who was very recently involved in a substantiated

EEO complaint.

(Nigro Dep. Tr. 153:15-154:6.)

Accordingly, the court finds that Defendants had “legitimate,

non-retaliatory reason[s]” for their conduct. See Zann Kwan, 737

F.3d at 845. And as McGrath fails to state a prima facie case for

retaliation, see Part III.C.1.a, McGrath similarly fails to show that

Defendants’ conduct was “a mere pretext for retaliation,” id. The

court concludes that there is no genuine dispute as to any mate-

rial fact that warrants a jury trial on McGrath’s retaliation claims

under Title VII, the NYSHRL, or the NYCRL. Fed. R. Civ. P. 56(a);

30

Kemp, 117 F.4th at 68. Accordingly, Defendants’ motion for sum-

mary judgment as to these claims is granted.

2. NYCHRL

The court now turns to McGrath’s retaliation claim under the NY-

CHRL, which must be analyzed separately from his federal and

state claims. See Mihalik, 715 F.3d at 109. While the court recog-

nizes that the NYCHRL provides broader protections than its

state and federal analogues, see id., McGrath must still “establish

that there was a causal connection between his protected activity

and the employer’s subsequent action, and must show that a de-

fendant’s legitimate reason for [his] termination was pretextual

or motivated at least in part by an impermissible motive,” Hughes

v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 449

(S.D.N.Y. 2018).

McGrath’s retaliation claim fails even under the NYCHRL.

McGrath failed to offer evidence that Defendants’ conduct was

reasonably likely to deter McGrath from engaging in protected

activities. The evidence shows that the FDNY EEO Office substan-

tiated Arroyo’s complaint against McGrath and _ brought

disciplinary charges against McGrath not as a result of McGrath’s

Agency Complaints, but because of the FDNY EEO Office’s exten-

sive fact-finding that validated Arroyo’s sexual harassment

allegations. McGrath’s scant evidence showing a causal link be-

tween his protected activity and the alleged retaliatory actions is

insufficient to defeat Defendants’ motion for summary judgment.

See Reichman v. City of New York, 117 N.Y.S.3d 280, 287 (2d

Dep’t 2020) (affirming summary judgment for defendants where

plaintiff “did not suffer an adverse employment action based

upon his engagement in a protected activity” and defendant “es-

tablish[ed] that there [was] no causal connection between the

protected activity and the alleged retaliatory actions”). McGrath

failed to provide “hard evidence” that Defendant’s actions were

“motivated at least in part by an impermissible motive.” See

31

D’Amico, 132 F.3d at 149; Hughes, 304 F. Supp. 3d at 449. As the

court explained infra at Part III.C.b, Defendants had a legitimate

explanation for their conduct. See Keles v. Yearwood, No. 15-CV-

03880 (NG), 2019 WL 1298480, at *8 (E.D.N.Y. Mar. 20, 2019)

(granting defendants’ motion for summary judgment on NY-

CHRL claim because “defendants. . . proffered a legitimate non-

discriminatory reason” for their conduct). In sum, after conduct-

ing a separate analysis for McGrath’s NYCHRL claim, the court

concludes that that there is no genuine dispute as to any material

fact that warrants a jury trial on McGrath’s retaliation claim un-

der the NYCHRL. Fed. R. Civ. P. 56(a); Kemp, 117 F.4th at 68.

Accordingly, Defendants’ motion for summary judgment as to

this claim is granted.

IV. CONCLUSION

For the foregoing reasons, the court GRANTS Defendants’ motion

for summary judgment. The Clerk of Court is respectfully DI-

RECTED to enter judgment dismissing all of McGrath’s claims

and close this case.

SO ORDERED.

Dated: — Brooklyn, New York

September 22, 2025

s/Nicholas G. Garaufis

EAOLES G. GARAUFIS

nited States District Judge

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