Fox v. Northwell Health Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KELLY ELIZABETH FOX,

MEMORANDUM

Plaintiff,

AND ORDER

22-CV-4512 (SIL)

-against-

NORTHWELL HEALTH, INC., THOMAS

GUY, STEPHANIE RUSSO, and JUDE

KOTSOVOLOS,

Defendants.

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STEVEN I. LOCKE, United States Magistrate Judge:

Presently before the Court in this employment discrimination action is a

motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil

Procedure (“Fed. R. Civ. P.”) filed by Defendants Northwell Health Inc. (“Northwell”),

Stephanie Russo (“Russo”), and Jude Kotsovolos (“Kotsovolos” and collectively,

“Defendants”). See Docket Entry (“DE”) [47]. Plaintiff Kelly Elizabeth Fox (“Fox” or

“Plaintiff”) opposes Defendants’ motion. DE [48]. For the reasons set forth below,

Defendants’ motion is granted in its entirety and this action is dismissed.

I. BACKGROUND

A. Relevant Facts

The facts are drawn from the pleadings, Defendants’ Local Rule 56.1

Statement of Material Facts (“Defs.’ 56.1 Stmt.”), DE [47-1], and Plaintiff’s Rule 56.1

Counterstatement of Material Facts (“Pl.’s 56.1 Counterstmt.”), DE [48-1], as well as

the admissible evidence relied upon in support of the respective statements.1

1. Parties and Relevant Individuals

In July 2016, Plaintiff began working at Peconic Bay Medical Center (“PBMC”)

as a Surgical Technologist. See Pl.’s 56.1 Counterstmt. ¶ 5. PBMC is a member of

the Northwell system of healthcare facilities. Id. at ¶ 1. While not addressed at

length in the parties’ briefing, there is no dispute that Northwell employed Fox. In

her role as a Surgical Technologist, Fox was responsible for, among other things,

participating in “turnover activities and room set up for each surgical procedure,

including connection of suction, electrical cords, power cables and electrocautery;

breaking down of operating room following each surgical procedure; and assisting

with ensuring adequate supply of stock for patient care.” Id. at ¶ 7. In August 2016,

PBMC hired Thomas Guy (“Guy”) as a Surgical Technologist, a role in which he

performed the same duties as Plaintiff.2 Id. at ¶¶ 6-8.

Defendant Russo worked at PBMC as Director of Perioperative Services from

June 2016 until 2023. Id. at ¶ 2. Russo was primarily responsible for overseeing

1 Contrary to Plaintiff’s assertion that “[t]he material facts in dispute here are abundant,” see Pl.’s

Opp’n at 1, of the 156 statements in Defendants’ Rule 56.1 Statement, Fox denies five facts. See Pl.’s

56.1 Counterstmt. ¶¶ 72, 81, 94, 113, 133. The Court considers the remaining facts that are supported

by admissible evidence to be undisputed. Local Civ. R. 56.1(c); see Ortiz v. BK Venture Grp. Ltd., No.

22-CV-3766(SJB), 2024 WL 1308410, at *1 (E.D.N.Y. Mar. 27, 2024) (holding that a party moving for

summary judgment must support its position by citing to admissible evidence from the record”);

Kirkland-Hudson v. Mt. Vernon City Sch. Dist., No. 21-CV-695(KMK), 2024 WL 4277940, at *1 n.1

(S.D.N.Y. Sep. 23, 2024) (“A court may not grant summary judgment based on a fact in a Rule 56.1

Statement—even if undisputed—not supported by admissible evidence.”). Accordingly, in the interest

of conciseness, where Plaintiff does not dispute Defendants’ statements of fact, the Court cites to

Plaintiff’s Rule 56.1 Counterstatement.

2 Although Guy was initially a Defendant, pursuant to a July 1, 2024 Stipulation of Dismissal, Fox

dismissed her claims against him. DE [43].

PBMC’s Perioperative Services Department, including ensuring employee

engagement, patient experience, operational success, and financial viability. Id. at ¶

3. Russo held a supervisory position with the authority to hire and fire employees.

Id. Defendant Kotsovolos worked at PBMC as Assistant Director of Perioperative

Services begging on approximately May 1, 2017. Id. at ¶ 4. The exact nature of her

role is not described, but she held a supervisory position with the ability to hire and

fire employees. Id. As described below, both Russo and Kotsovolos were involved in

Fox’s termination.

2. PBMC’s Relevant Policies

Plaintiff agreed to PBMC’s policies and practices. Id. at ¶ 9. This included a

Non-Discrimination and Non-Harassment policy (the “Non-Discrimination Policy”),

which includes a Sexual Harassment Prevention Addendum (the “Sexual

Harassment Policy”). Id. at ¶ 10. The Sexual Harassment Policy informs employees

that they may report possible instances of sexual harassment by “promptly

report[ing] it to their Site Human Resources department (“Site HR”) or a supervisor

or manager,” by “completing Northwell Health’s Sexual Harassment Complaint form

(contained in the appendix to [the] policy) and submit[ting] it to the employee’s Site

HR department or a supervisor or manager,” or by submitting an anonymous report

through the Compliance HelpLine.” Id. at ¶ 13.

PBMC also enforces an Excessive and/or Patterned Absenteeism and Lateness

Policy (the “Absenteeism Policy”). Id. at ¶ 15. The Absenteeism Policy defines

“excessive absenteeism” for employees working a 10 to 12 hour shift as “[a]n

employee’s third (3rd) occasion of absence in any three (3) month period,” “[a]n

employee’s fifth (5th) occasion of absence in any six (6) month period,” or “[a]n

employee’s seventh (7th) occasion of absence in any twelve (12) month period.” Id. at

¶ 16. The Absenteeism Policy states that a pattern of absences or lateness “is an

independent basis for discipline even if the absences or lateness are not excessive as

defined” in the policy. Id. at ¶ 17.

Finally, PBMC has a Code of Conduct (the “Code of Conduct”) that “define[s]

personal and professional standards of conduct and acceptable behaviors for all

people while carrying out assigned responsibilities at PBMC.” Id. at ¶ 19. The Code

of Conduct requires employees to “[t]reat all persons . . . with respect, courtesy,

caring, dignity and a sense of fairness and with recognition of, and sensitivity to, the

needs of individuals from diverse backgrounds.” Id. at ¶ 20. It further requires

employees to “[c]ommunicate openly, respectfully and directly with team members . .

. in order to optimize health services and to promote mutual trust and

understanding.” Id. at ¶ 21. The Code of Conduct also prohibits “obscene language

or gestures.” Id.

3. Plaintiff’s Allegations of Discriminatory Conduct

Plaintiff claims that, in April 2018, Guy spoke derisively towards her, calling

her a “dumb bitch,” a “useless cunt,” and the “whiniest bitch [he] ever met.” Id. at ¶

66. Fox further claims that “Mr. Guy called her ‘a stupid bitch, dumb, useless, lazy,

no one liked [her], whiniest bitch her [sic] ever met.” Id. at ¶ 146.3 She did not

3 While Plaintiff asserts that, in April 2018, Guy smirked at her, see Pl.’s 56.1 Counterstmt. ¶ 59, and

“burst angrily into the operating room and hit her on her left arm and shoulder with the door,” id. at

complain to Northwell about Guy’s conduct or language until October 2018, and she

only did so while being interviewed in conjunction with an investigation of another

employee’s complaint about Guy. Id. at ¶¶ 93-96. During that interview, Fox stated

that Guy had previously called her “a brat, piece of shit and a fucking asshole.” See

Declaration of John C. Luke (“Luke Decl.”), DE [48-2], Ex. Q. Although Plaintiff

produced records of interview notes in support of her instant motion, id at Exs. F, Q,

there is no evidence that she formally reported that Guy called her a “dumb bitch,” a

“useless cunt,” or the “whiniest bitch [he] ever met” as she asserts in opposition to

Defendants’ motion. Moreover, two non-parties conducted the interview of Plaintiff

related to the unrelated employee’s complaint and neither Russo nor Kotsovolos had

knowledge of what Fox disclosed. See Pl.’s 56.1 Counterstmt. ¶ 97; Declaration of

Stephanie Russo (“Russo Decl.”), DE [47-4], ¶¶ 20-21; Declaration of Jude Kotsovolos

(“Kotsovolos Decl.”), DE [47-5], ¶ 14.

4. Plaintiff’s Disciplinary Record and Termination

Plaintiff had an extensive disciplinary record at Northwell, including the

following:

- On March 8, 2017, Plaintiff received a verbal warning for nine violations of

the Absenteeism Policy. Pl.’s 56.1 Counterstmt. ¶ 39.

- On April 20, 2017, Plaintiff received a verbal warning identifying eight

separate instances in which she was “insubordinate,” “loud, aggressive, and

disrespectful,” “angry,” and “uncooperative, frustrated, and disrespectful.”

Id. at ¶ 43.

¶ 69, she neither asserts, nor does the evidence support, that that these actions were based on her sex.

Plaintiff further concedes that she “chose not to say anything” after Guy allegedly hit her with the

door. Id. at ¶ 147. These claims are therefore immaterial and do not warrant consideration.

- On February 1, 2018, Plaintiff received a written warning for seven

violations of the Absenteeism Policy. Id. at ¶ 48.

- On June 21, 2018, Plaintiff received a two-day suspension for five violations

of the Absenteeism Policy. Id. at ¶ 88.

- On October 31, 2018, Plaintiff received a one-day suspension for using

language such as “kicking [my] ass” and “fucking unbelievable.” Id. at ¶

112.

- In May and June of 2019, at least three employees complained about

Plaintiff’s conduct, including her inappropriate and intimidating conduct,

as well as her use of profane language. Id. at ¶¶ 118, 120, 122, 125.

- On August 29, 2019, Assistant Nurse Manager Amanda DeRusso

complained that Plaintiff failed to appear for her shift that day, and that

Fox stated the following day that DeRusso gave her a “bad” assignment

because DeRusso “Fucking hates [her].” Id. at ¶¶ 128-30. Plaintiff told

DeRusso, “Don’t let the door hit you in the ass on the way out.” Id. at ¶ 132.

- On October 2, 2019, Plaintiff stated, “I don’t fucking care” when a colleague

“informed her that there was an incorrect count of surgical instruments.”

Id. at ¶ 136.

- On October 3, 2019, when a Surgical Technician told Plaintiff to take her

break, she responded, “I am not breaking – you can tell her to mind her own

fucking business.” Id. at ¶ 137.

Ultimately, on October 7, 2019, Northwell terminated Fox for “using profane

language towards co-workers.” Id. at ¶ 138. The termination notice stated that Fox

“used loud and profane language towards the Assistant Nurse Manager in a public

area,” was “unprofessional when speaking with a Surgical P.A.,” and “used profane

language when asked a question by another Surgical Tech.” Id. at ¶ 139. Russo gave

Plaintiff the termination notice and Kotsovolos was present to witness the

termination. Id. at ¶¶ 140-41. Plaintiff denies that she is the only person to use

profane language and claims that the allegations were only raised after she

complained about Guy. Id. at ¶ 142. She does not, however, claim that she was

disciplined or terminated because of being a member of any protected class. Although

Plaintiff filed a grievance regarding her termination pursuant to a collective

bargaining agreement, her termination was upheld. Id. at ¶¶ 143, 148.

B. Procedural Background

On June 3, 2020, Plaintiff filed a Charge of Discrimination with the New York

State Division of Human Rights (“NYSDHR”), which she cross-filed with the United

States Equal Employment Opportunity Commission (“EEOC”). Id. at ¶ 149. On

November 3, 2021, at Plaintiff’s request, the NYSDHR dismissed Fox’s complaint “for

administrative convenience.” Id. at ¶ 154. The EEOC issued a Dismissal and Notice

of Right to Sue on May 19, 2022. Id. at ¶ 155.

By way of a Complaint dated August 1, 2022, Plaintiff commenced this action

against Defendants, asserting causes of action for: (1) sex/gender discrimination

under Title VII related to a hostile work environment; (2) retaliation under Title VII;

(3) sex discrimination under the NYSHRL related to a hostile work environment; (4)

aiding and abetting discrimination under the NYSHRL; and (5) retaliation under the

NYSHRL. DE [1]. On September 13, 2024, the remaining Defendants filed the

instant motion for summary judgment, which Plaintiff opposes. DE [47], [48]. For

the reasons set forth herein, Defendants’ motion is granted in its entirety.

II. LEGAL STANDARD

Pursuant to Fed. R. Civ. P. 56, a “court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears

the burden of establishing that there are no issues of material fact such

that summary judgment is appropriate. See Huminski v. Corsones, 396 F.3d 53, 69

(2d Cir. 2004). In deciding the motion, the Court “is not to weigh the evidence but is

instead required to view the evidence in the light most favorable to the party

opposing summary judgment, to draw all reasonable inferences in favor of that party,

and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361

F.3d 113, 122 (2d Cir. 2004); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S. Ct. 2505, 2510 (1986) (holding that a motion for summary judgment should be

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

nonmoving party”).

Once the movant has met its initial burden, the party opposing summary

judgment “must do more than simply show that there is some metaphysical doubt as

to the material facts . . . . [T]he nonmoving party must come forward with specific

facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1356 (1986) (internal

quotation omitted); see Maxton v. Underwriter Labs., Inc., 4 F. Supp. 3d 534, 542

(E.D.N.Y. 2014) (“An issue of fact is considered ‘genuine’ when a reasonable finder of

fact could render a verdict in favor of the non-moving party”). In determining

whether summary judgment is warranted, “the court’s responsibility is not to resolve

disputed issues of fact but to assess whether there are any factual issues to be tried,

while resolving ambiguities and drawing reasonable inferences against the moving

party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); see Artis v. Valls,

No. 9:10-CV-27(GTS)(TWD), 2012 WL 4380921, at *6 n.10 (N.D.N.Y. Sep. 25,

2012) (“It is well established that issues of credibility are almost never to be resolved

by a court on a motion for summary judgment.”).

III. DISCUSSION

In moving for summary judgment, Defendants argue: (1) Plaintiff’s Title VII

causes of action are untimely because Fox did not file a charge of discrimination

within 300 days of the allegedly discriminatory conduct; (2) Plaintiff’s hostile work

environment claims arising under the NYSHRL are untimely as they were not filed

within the applicable 3-year statute of limitations; and (3) that all of Plaintiff’s causes

of action fail on their merits. See generally Defs.’ Mem. Plaintiff failed to timely file

her hostile work environment claims and she fails to identify any pertinent issue of

fact with respect to her retaliation claims. Accordingly, Defendants’ motion is

granted in its entirety.

A. Plaintiff’s Hostile Work Environment Claims are Untimely

1. Federal Claims for Hostile Work Environment

The EEOC requires that a plaintiff asserting a Title VII claim file a complaint

with the EEOC within 180 days of the complained conduct. See 42 U.S.C. § 2000e-

5(e)(1). The NYSDHR allows 300 days for a plaintiff to file a complaint of

discrimination. See Tillman v. Luray’s Travel, 137 F. Supp. 3d 315, 326 (E.D.N.Y.

2015) (observing that a charge of discrimination must be filed with the NYSDHR

“within 300 days of the alleged discriminatory act as a prerequisite to bringing that

claim in federal court”). Where, as here, there are “local administrative mechanisms

for pursuing discrimination claims,” the 300-day deadline applies to both the EEOC

and the NYSDHR. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 79 (2d Cir.

2015) (“Title VII requires that individuals aggrieved by acts of discrimination file a

charge with the EEOC within 180 or, in states like New York that have local

administrative mechanisms for pursuing discrimination claims, 300 days after the

alleged unlawful employment practice occurred.”) (internal quotation marks

omitted)); Johnson v. Buffalo Police Dep’t, 46 F. App’x 11, 13 (2d Cir. 2002) (“Title VII

requires an aggrieved party to file a charge of discrimination with either the [EEOC]

or [NYSDHR] within 300 days of the alleged act of discrimination; the failure to do

so will result in the claims being time-barred.”); Rasko v. New York City Admin. for

Children’s Servs., 734 F. App’x 52, 54 (2d Cir. 2018) (“Under Title VII, a plaintiff in

New York must file a complaint with the EEOC within 300 days of a discriminatory

act.”); Fanelli v. New York, 51 F. Supp. 3d 219, 227 (E.D.N.Y. 2014) (“[B]ecause the

Plaintiff filed her EEOC charge with both the EEOC and the NYSDHR, the applicable

statute of limitations period to file her EEOC charge was 300 days from the alleged

occurrence of the unlawful employment practice.”). Nevertheless, “[e]ach discrete

discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 2072; Ball v. Marriott

Int’l, Inc., 627 F. Supp. 3d 296, 314 (S.D.N.Y. 2022) (“Thus, ‘[a] charge alleging a

hostile work environment claim . . . will not be time barred so long as acts which

constitute the claim are part of the same unlawful employment practice and at least

one act falls within the time period.’”) (quoting Morgan, 536 U.S. at 122, 122 S. Ct. at

2061).

The 300-day deadline to file a charge of discrimination “is analogous to a

statute of limitations.” Kaba v. Hope Home Care, No. 23-CV-9512(OEM)(LB), 2024

WL 1679327, at *2 (E.D.N.Y. Apr. 18, 2024) (citing Vega, 801 F.3d at 79); see Morgan,

536 U.S. at 109, 122 S. Ct. at 2070 (holding that a claim is time-barred if an EEOC

charge is not timely filed “within 300 days of the employment practice”); Kirk v. Mt.

Vernon City Sch. Dist., No. 23-CV-7441(CS), 2024 WL 3794591, at *4 (“This

requirement functions as a statute of limitations that bars a plaintiff’s claims of an

administrative claim is not timely filed.”). Accordingly, even where the EEOC issues

a Notice of Right to Sue with respect to an untimely claim, the claim is not viable.

Mauro v. New York City Transit Auth., No. 09 Civ. 4732(DLC), 2010 WL 1424009, at

*2 (S.D.N.Y. Apr. 9, 2010) (“While plaintiff timely filed his Federal lawsuit within

ninety days upon receipt of the EEOC right-to-sue letter, such a letter ‘enables a

private suit only if it is issued in connection with an administrative charge that is

timely filed.’”) (quoting McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 213

(2d Cir. 2006)); Churaman-Jadoo v. Daniels, No. 23-CV-08482(JMA)(LGD), 2025 WL

2614943, at *3 (E.D.N.Y. Sept. 10, 2025) (“To prevail on a Title VII cause of action, a

plaintiff must first exhaust administrative remedies by (i) filing an administrative

charge with the EEOC within 300 days after an alleged unlawful employment

practice occurred, (ii) receiving a right-to-sue letter from the EEOC, and (iii) suing in

court within 90 days of receiving that right-to-sue letter.”) (citing see Duplan v. City

of New York, 888 F.3d 612, 621-22 (2d Cir. 2018).4

Fox filed her complaint with the NYSDHR on June 30, 2020, and cross-filed it

with the EEOC on the same day. Pl.’s Counterstmt. ¶ 149; see Declaration of Gomez-

Sanchez (“Gomez-Sanchez Decl.”), DE [47-2], Ex. G. Thus, any allegedly

discriminatory conduct that occurred prior to August 8, 2019 cannot form the basis

of her Title VII claims, as it would have occurred more than 300 days before she

complained to the NYSDHR. See Babayoff v. Pro Coverage Grp., Inc., No. 20-CV-

4538(WFK)(PK), 2024 WL 5284000, at *4 (E.D.N.Y. Dec. 12, 2024) (“[A]n injured

party must file a charge with either the [EEOC] or the relevant state agency (in New

York, the [NYSDHR]) within 300 days of the alleged discriminatory act as a

prerequisite to bringing that claim in federal court.”) (quoting Tillman, 137 F. Supp.

3d at 326); Roach v. Long Island R.R., 487 F. Supp. 3d 154, 169 (E.D.N.Y. 2020)

(“[O]nly those discriminatory actions occurring on or after . . . 300 days prior to when

[the plaintiff] filed a charge with the NYSDHR . . . may support a timely claim under

Title VII.”).

Plaintiff does not identify any discriminatory or harassing conduct that

occurred within the 300 days prior to the date she submitted her complaint to the

4 Although the EEOC initially sent a Notice of Right to Sue on January 4, 2022, “due to an

administrative error, the Notice of Right to Sue was never sent” to Plaintiff’s counsel’s attention. See

Gomez-Sanchez Decl. Ex. L. The EEOC re-sent the Notice of Right to Sue on May 19, 2022, informing

Plaintiff that her 90 days to commence suit ran from that date. Id. While Plaintiff commenced this

action within 90 days, the EEOC’s Notice of Right to Sue does not render Plaintiff’s claim timely or

viable. See Morgan, 536 U.S. at 109, 122 S. Ct. at 2070 (holding that a claim is time-barred if an EEOC

charge is not timely filed “within 300 days of the employment practice”); Kirk, 2024 WL 3794591, at

*4.

NYSDHR. Relevant here, “[a] plaintiff must show either ‘a single incident [that] was

extraordinarily severe’ or a ‘series of incidents [that] were sufficiently continuous and

concerted to have altered the conditions of [the] working environment.’” Campbell v.

Bottling Grp., LLC, 814 F. App’x 630, 633 (2d Cir. 2020) (quoting Alfano v. Costello,

294 F.3d 365, 373 (2d Cir. 2002)). The only plausible evidence concerning a hostile

work environment is that in April 2018, Guy spoke derisively towards her, calling her

a “dumb bitch,” a “useless cunt,” and the “whiniest bitch [he] ever met.” See Pl.’s 56.1

Counterstmt. ¶¶ 66, 146. Fox did not complain about Guy’s conduct at the time it

occurred. Rather, following a complaint submitted by Fox’s colleague on August 16,

2018, Defendants commenced an investigation of Guy’s conduct. Id. at ¶ 67.

Northwell interviewed Fox, at which time she complained of Guy’s conduct towards

her. Luke Decl. Ex. Q. On October 25, 2018, Northwell completed its investigation

and subsequently issued a written warning to Guy. Id. at Ex. G. Plaintiff does not

identify hostile conduct that occurred after this. In the Fox’s Verified Amended

Complaint filed with the New York State Division of Human Rights on September

20, 2021, Fox states that the “[d]ate most or continuing took place” was October 7,

2019. Id. at Ex. I. In the instant motion, however, she does not identify any allegedly

hostile conduct that occurred after April 2108.

Accordingly, Plaintiff’s claim for hostile work environment arising under Title

VII fails as she does not identify any conduct supporting her hostile work

environment claim that occurred in the 300 days prior to filing her complaint with an

administrative agency. See McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d

Cir. 2010) (“Title VII’s administrative exhaustion provision requires that any

complaint be filed with the EEOC within 300 days of the alleged discriminatory act.”);

King v. N. Amityville Fire Co., Inc., No. 19-CV-4643(JMA)(AYS), 2023 WL 4827103,

at *7 (E.D.N.Y. July 27, 2023) (“Plaintiff’s Title VII claims fail as she has not alleged

any specific hostile act occurring in the 300-days prior to the filing of her . . . EEOC

charge.”). Accordingly, Plaintiff’s claims for a hostile work environment arising under

Title VII are time barred. See Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179,

238 (E.D.N.Y. 2014) (holding that actions that occurred more than three years prior

could not be considered for purposes of Title VII claims).

2. State Law Claims For Hostile Work Environment

Plaintiff’s hostile work environment claims arising under the NYSHRL, see

Compl. ¶¶ 127-29, are also untimely. The NYSHRL provides that “[a]ny complaint

filed pursuant to this section must be so filed within three years after the alleged

unlawful discriminatory practice.” See N.Y. Exec. L. § 297(5); Kassner v. 2nd Ave.

Delicatessen Inc., 496 F.3d 229, 239 (2d Cir. 2007) (“[C]laims under the NYSHRL are

time-barred unless filed within three years of the alleged discriminatory acts.”);

Kirkland-Hudson, 665 F. Supp. 3d at 446 (“NYSHRL claims have a three-year statute

of limitations.”). The last instance of hostility that Fox identifies occurred in April

2018 when Guy allegedly called her a “dumb bitch,” a “useless cunt,” and “the

whiniest bitch that he had ever known.” Luke Decl. Ex. G (“Fox Dep. Tr.”), DE [48-

2], at 175:11-14; see Pl.’s 56.1 Counterstmt. ¶ 72; Compl. ¶ 42.5 Although Plaintiff

5 Fox testified that Guy “either said things under his breath, or be like yeah, okay or whatever.” Fox

Dep. Tr. 214:2-4. She also testified that she complained that Guy “burst in angrily into the [operating

did not complain of this conduct at the time it occurred, she raised it during an

investigation of another employee’s complaint. See Pl.’s 56.1 Counterstmt. ¶¶ 66-67,

93-111. In November of 2018, Northwell issued a disciplinary warning to Guy

regarding the other employee’s complaint, concluding that Guy engaged in

“Aggression, Hostility, and Violence In The Workplace.” See Russo Decl. Ex. I.

Northwell instructed Guy that he “must behave in a professional manner at all times

consistent with Northwell Health’s policies and procedures” and that “further

infractions will result in further disciplinary action, up to and including termination.”

Id. The disciplinary warning does not name any employee by name, and Plaintiff

does not identify further hostility by Guy or any other employee. As Plaintiff

commenced this action on August 1, 2022, DE [1], more than 3 years after the last

instance of alleged hostility, her claims for hostile work environment arising under

the NHSHRL are therefore also untimely. See Bowen-Hooks, 13 F. Supp. 3d at 238;

Bermudez v. City of New York, 783 F. Supp. 2d 560, 607-608 (S.D.N.Y. 2011)

(observing that the statute of limitations for hostile work environment claims under

both NYSHRL is three years); E.E.O.C. v. Bloomberg L.P., 967 F. Supp. 2d 816, 875

(S.D.N.Y. 2013) (“Additionally, an employer’s failure to investigate an employee’s

complaint cannot ‘contribute[ ] to or constitute[ ] a hostile work environment.’”)

room] and hit [her] with the door on [her] left arm and shoulder.” Id. at 179:10 – 181:2. Her testimony

establishes that these encounters occurred in April 2018 and, in any event, were not gender-oriented.

Id. The Court, therefore, does not consider them.

(quoting Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 724 (2d Cir.2010)).

Accordingly Defendants’ motion for summary judgment is granted with respect to

Plaintiff’s state and federal hostile work environment claims.

B. Plaintiff’s Retaliation Claims Fail as a Matter of Law

Notwithstanding the foregoing, Northwell terminated Plaintiff within the 300

days preceding her complaint with the NYSDHR and the Court therefore considers

the merits of Fox’s retaliation claims. “Title VII prohibits employers from retaliating

‘against any . . . employee[ ] . . . because [that individual] has opposed any practice’

made unlawful by Title VII.” Hampton v. Wilkie, 554 F. Supp. 3d 512, 523 (E.D.N.Y.

2021) (quoting 42 U.S.C. § 2000e–3(a)). Likewise, New York law provides:

It shall be an unlawful discriminatory practice for any person engaged

in any activity to which this section applies to retaliate or discriminate

against any person because he or she has opposed any practices

forbidden under this article or because he or she has filed a complaint,

testified or assisted in any proceeding under this article.

N.Y. Exec. Law § 296(7). Claims for retaliation under Title VII and the NYSHRL

apply the same standard. Abromavage v. Deutsche Bank Secs. Inc., No. 21-668, 2022

WL 4360950, at *1 (2d Cir. 2022) (“Title VII and NYSHRL retaliation claims are

analyzed under the same standard.”); Peterec v. TGI Fridays, Inc., No. 23-CV-

8028(KMK), 2024 WL 4337526, at *9 (S.D.N.Y. Sep. 25, 2024) (“Retaliation claims

brought under the NYSHRL are analyzed under the same framework as retaliation

claims brought pursuant to Title VII.”); Maynard v. Montefiore Med. Ctr., No. 18 Civ.

8877(LAP), 2021 WL 396700, at *5 (S.D.N.Y. Feb. 4, 2021) (“Claims under Title VII

and the NYSHRL are treated as analytically identical.”) (internal quotation omitted).

Under both statutes, retaliation claims are analyzed under the burden-shifting

approach promulgated by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S. Ct. 1817 (1973). Schaper v. Bronx Lebanon Hosp. Ctr., 408 F.

Supp. 3d 379, 390 (S.D.N.Y. 2019); see Xu v. City of New York, No. 08-CV-

11339(AT)(RWL), 2020 WL 8671952, at *32 (S.D.N.Y. Dec. 22, 2020) (“Title VII and

NYSHRL claims are analyzed under the same burden-shifting framework.”) (citing

Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).

Pursuant to the McDonnell Douglas framework:

To make out a prima facie case of retaliation, a plaintiff must show: (1)

they engaged in a protected activity; (2) their employer was aware of this

activity; (3) the employer took adverse employment action against them;

and (4) a causal connection exists between the alleged adverse action

and the protected activity. Summa v. Hofstra Univ., 708 F.3d 115, 2125

(2d Cir. 2013) (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,

608 (2d Cir. 2006)). Under the McDonnell Douglas burden-shifting

framework, once the plaintiff establishes a prima facie case of

retaliation, the burden of production shifts to the employer to

demonstrate a legitimate, non-discriminatory reason for its action.

McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817,

36 L.Ed.2d 668 (1973); Summa, 708 F.3d at 125. If the employer

demonstrates a legitimate, non-discriminatory reason, the burden shifts

back to the plaintiff to establish, through direct or circumstantial

evidence, that the employer’s action was, in fact, motivated by

discriminatory retaliation. Id.

Hampton, 554 F. Supp. 3d at 523.

Here, the only action that would fall within the relevant period would be Fox’s

October 7, 2019 termination. This is also the only plausibly retaliatory act that

Plaintiff identifies. See, e.g., Sylla v. New York City Dep’t of Educ., 664 F. Supp. 3d

311, 326 (E.D.N.Y. 2023) (analyzing claim for unlawful termination under the

McDonnell Douglass framework); Calixte v. Acacia Network, No. 19-CV-2039(MMH),

2023 WL 27334646, at *6 (E.D.N.Y. Mar. 31, 2023) (“Examples of materially adverse

employment changes include termination of employment . . . .”); Gold v. Titlevest

Agency LLC, No. 18 Civ. 935(AJN), 2020 WL 2835570, at *8-9 (S.D.N.Y. June 1, 2020)

(evaluating whether the plaintiff’s termination was retaliatory). Applying the

standards above, Fox fails to identify an issue of fact for several reasons.

First, Plaintiff fails to establish that she engaged in protected conduct of which

Defendants had knowledge. Neither Russo nor Kotsovolos were aware of Fox’s

alleged complaints made during an investigation related to another employee. See

Pl.’s 56.1 Counterstmt. ¶ 97; Russo Decl. ¶¶ 20; Kotsovolos Decl. ¶ 14. Fox did not

make an independent complaint of gender-based discrimination. Instead, she sat for

an interview after another employee complained about Guy. To this end, Fox

concedes that there is no record that she complained in April 2018. See Pl.’s Opp’n

at 11. She acknowledges, however, that Defendants kept records – for which Plaintiff

herself was interviewed – with respect to complaints from a fellow female co-worker.

Id. This belies Fox’s claim that she engaged in protected conduct that played a role

in how Defendants treated her. At the end of the day, Plaintiff offers no evidence

that her termination was related in any way to her participation in the investigation

of another employee.

The Court does not doubt that Guy was a discourteous or unpleasant co-

worker. Nevertheless, this, alone, is not actionable and Plaintiff fails to identify any

retaliatory conduct that Defendants took based on her membership in a protected

class. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998,

1002 (1998) (“Title VII is not a general civility code for the American workplace.”)

(internal citation omitted); Rivera v. Rochester Genesee Regional Transp. Auth., 743

F.3d 11, 20 (2d Cir. 2014) (“‘It is axiomatic that mistreatment at work, whether

through subjection to a hostile environment or through [other means], is actionable

under Title VII only when it occurs because of an employee’s . . . protected

characteristic.’”) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001));

Browne v. New York State Dep’t of Corrs. & Comm. Supervision, No. 21-CV-

5240(PMH), 2024 WL 917610, at *8 (S.D.N.Y. Mar. 4, 2024) (“The episodic, isolated,

and unpleasant exchanges Plaintiffs had with their co-workers, cannot be the basis

of a hostile work environment claim because the is no evidence of a link between the

alleged hostile conduct and Plaintiff’s membership in a protected class.”); Rissman v.

Chertoff, No. 08-CV-7352(DC), 2008 WL 5191394, at *4 (S.D.N.Y. Dec. 12, 2008) (“In

essence, plaintiff alleges that because he was yelled at [by his supervisors], this must

have been because of his [protected status].”). Moreover, neither Ms. Russo nor Ms.

Kotsovolos had knowledge of the contents of any of the interviews conducted by

Human Resources such that they could have retaliated against Fox. See Russo Decl.

¶¶ 20-21; Kotsovolos Decl. ¶ 14.

With respect to the final factor of the McDonnell-Douglas analysis, Defendants

offer an undisputed, non-pretextual basis for Fox’s termination. Specifically, Fox

repeatedly violated multiple employee policies, including the Absenteeism Policy and

the Code of Conduct. See Russo Decl. Exs. J-P. Fox does not dispute—and the

evidence supports—that that she repeatedly engaged in the conduct that resulted in

suspensions and her ultimate termination. Id.; see Pl.’s 56.1 Counterstmt. ¶¶ 112,

119. Plaintiff does not dispute the requirements arising under the Code of Conduct,

that she violated the Code of Conduct, or that her termination was based up on her

violation of the Code of Conduct. See Pl.’s 56.1 Counterstmt. ¶¶ 109, 112, 119, 138-

39. In fact, as early as October 31, 2018, she was informed that “failure to follow

policy and disregard will result in further disciplinary actions up to and including

termination.” See Katsovolos Decl. Ex. B. To this end, Plaintiff’s claim that she

“received stellar reviews for job performance,” see Pl.’s Opp’n at 8, is immaterial.

Although both reviews she cites state that Fox was an “integral member of the

Perioperative team” and that she “demonstrates the skills and knowledge necessary,”

see Russo Decl. Exs. D, G, they also state that she “will need to reflect on her own

professional behavior . . . .” Id. These reviews, while containing favorable language,

do not establish pretext. Orisek v. Am. Inst. of Aeronautics & Astronautics, 938 F.

Supp. 185, 191 (S.D.N.Y. 1996) (“[The plaintiff’s] own disagreement with her

employer’s perceptions of her job performance does not satisfy her burden of showing

that the [defendant’s] proffered justification was a pretext for discrimination.”) (citing

Meiri, 759 F.2d at 995). Simply put, Plaintiff fails to establish the reasons cited for

her termination were pretextual.

Finally, relying on Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985), Plaintiff claims

that, “[h]ere, as in Meiri, the Plaintiff raised a genuine issue of fact as to whether

Defendant’s expectations were legitimate and whether the Plaintiff was set up for

failure and targeted.” Pl.’s Opp’n at 9. This argument ignores Meiri’s ultimate

holding. There, the Second Circuit affirmed summary judgment, observing that, “[t]o

allow a party to defeat a motion for summary judgment by offering purely conclusory

allegations of discrimination, absent any concrete particulars, would necessitate a

trial in all Title VII cases.” Meiri, 759 F.2d at 793. Fox has failed to identify any

“concrete particulars” related to gender-oriented discrimination and her claims are,

therefore, deficient. Ultimately, Fox fails to demonstrate that she was subjected to

gender-related discrimination, that her gender played a role in her termination, or

that Defendants retaliated against her for complaining about Guy. Fox concedes

that Northwell has a policy prohibiting, inter alia, “obscene language or gestures.”

Pl.’s 56.1 Counterstmt. ¶ 21. As described above, Fox does not dispute that this was

the basis of her termination, nor does she plausibly demonstrate that the basis for

her termination was pretextual. To the contrary, she concedes that she engaged in

the conduct that formed the basis of her termination. Id. at ¶ 121. Moreover, insofar

as Fox disputes the relevance of her numerous violations of the Absenteeism Policy,

id. at ¶¶ 72, 81, 94, 113, 133, there are multiple documented complaints against her

for other violations of the Code of Conduct, including those that are cited as the basis

for her termination. Russo Decl. at Exs. J-P.

Based upon the foregoing, Plaintiff’s claims are both untimely and meritless.

Accordingly, Defendants’ motion for summary judgment is granted.6 Cherry v. New

6 Having concluded that Plaintiff’s Title VII and NYSHRL claims fail, her claim for aiding and abetting

under the NYSHRL also fails. Aiken v. MTA New York City Transit, No. 18-CV-11756(GBD)(DF), 2021

WL 4481094, at *6 (S.D.N.Y. Sept. 29, 2021) (“[A]iding and abetting ‘is only a viable theory where an

underlying violation has taken place.’”) (quoting Moore v. Metro. Transp. Auth., 999 F. Supp. 2d 482,

510 (S.D.N.Y. 2013)).

York City Housing Auth., 565 F. Supp. 3d 140, 161 (E.D.N.Y. 2021) (granting motion

for summary judgment on the plaintiff’s gender-based claims where there were

multiple documented instances of misconduct); see Meiri, 759 F.2d at 793.

IV. CONCLUSION

For the reasons set forth herein, Defendants’ motion for summary judgment is

granted in its entirety. The Clerk of the Court is respectfully directed to enter

judgment in favor of Defendants and to close this case.

Dated: Central Islip, New York SO ORDERED

September 29, 2025

s/ Steven I. Locke

STEVEN I. LOCKE

United States Magistrate Judge