Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 1 of 14
11 Civ. 1242 (SHS)
OPINION & ORDER
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, STATE OFFICE
FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES (formerly known as the
OFFICE OF MENTAL RETARDATION
DISABILITIES), HUDSON VALLEY
SERVICE OFFICES, and TIFFANY
COHEN, individually and in her official
SIDNEY H. STEIN, U.S. District Judge.
Plaintiff Patty McLaughlin brings this action for race?based
employment discrimination pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., against her former employer Hudson Valley
Developmental Disabilities Service Offices (“DDSO”), the State Office for
People with Developmental Disabilities, and the State of New York.
McLaughlin also asserts claims pursuant to 42 U.S.C. § 1983 against her
former supervisor, Developmental Aide Tiffany Cohen, in her official and
individual capacities, for violating plaintiff’s rights under the Equal
Protection Clause of the Fourteenth Amendment.1 Following discovery
proceedings, defendants have now moved for summary judgment. (Dkt.
1 Plaintiff had asserted several additional claims in her complaint, but voluntarily
withdrew them in February of this year. (Dkt. No. 30.)
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 2 of 14
Because no genuine issue of material fact exists with regard to the
circumstances surrounding McLaughlin’s employment, and defendants
are entitled to judgment as a matter of law, their motion for summary
judgment is granted.
Unless otherwise noted, the material facts set forth below are
A. Plaintiff’s Employment
Patty McLaughlin was hired by defendant DDSO as a Developmental
Aide Trainee (“DAT”) in January 2009. (Defs.’ Local Civil Rule 56.1
Statement of Undisputed Facts (“Defs.’ 56.1”) ¶¶ 1, 5; Pl.’s Local Civil Rule
56.1 Response (“Pl.’s 56.1”) ¶¶ 1, 5.) DDSO administers and oversees
operations for defendant New York State Office for People with
Developmental Disabilities, which coordinates services for thousands of
New Yorkers with developmental disabilities and provides long?term care
to disabled citizens in community settings. (Defs.’ 56.1 ¶¶ 2?3; Pl.’s 56.1 ¶¶
2?3.) These community settings, known as “individual residential
alternatives,” provide housing to individuals with physical, medical, and
behavioral issues that necessitate twenty?four hour care. (Defs.’ 56.1 ¶¶ 4,
13; Pl.’s 56.1 ¶¶ 4, 13.)
McLaughlin was assigned to work at one of the individual residential
alternatives—the Riley Road residence—as a DAT. (Defs.’ 56.1 ¶ 5; Pl.’s
56.1 ¶ 5.) Riley Road is an all?female facility housing twelve women.
(Defs.’ 56.1 ¶ 14; Pl.’s 56.1 ¶ 14.) In January 2009, when McLaughlin began
her employment at Riley Road, the staff consisted of fifteen
Developmental Aides (“DAs”) and two DATs. (Defs.’ 56.1 ¶ 7; Pl.’s 56.1 ¶
7.) The other DAT was Selena Williams, who started at the same time as
McLaughlin. (Pl.’s Local Civil Rule 56.1 Counterstatement of Undisputed
Facts ¶¶ 6?7 (“Pl.’s Counter 56.1”); Defs.’ Local Civil Rule 56.1
Counterstatement of Undisputed Facts ¶¶ 6?7 (“Defs.’ Counter 56.1”).) The
DAT position was a probationary one and conferred no tenure rights.
(Defs.’ 56.1 ¶ 6; Pl.’s 56.1 ¶ 6.)
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 3 of 14
Tiffany Cohen, one of the DAs, was a supervisor at Riley Road. (Defs.’
56.1 ¶ 4; Pl.’s 56.1 ¶ 4.) Cohen initially supervised both McLaughlin and
Williams, who were assigned to the day shift. (Pl.’s Counter 56.1 ¶¶ 10?11;
Defs.’s Counter 56.1 ¶¶ 10?11.) Cohen reported to DA William Powe.
(Defs.’ 56.1 ¶ 10; Pl.’s 56.1 ¶ 10.) Shari Bakst was the Treatment Team
Leader responsible for the overall supervision of Riley Road and eight
other community residences. (Defs.’ 56.1 ¶¶ 11?12; Pl.’s 56.1 ¶¶ 11?12.)
McLaughlin and Bakst are Caucasian; Williams and Cohen are African
American. (Defs.’ 56.1 ¶ 1; Pl.’s 56.1 ¶ 1; Decl. of Shari Bakst dated Feb. 20,
2013 ¶¶ 12, 32; Decl. of Patty McLaughlin dated March 21, 2012 ¶¶ 2, 6,
From her first week of employment, McLaughlin experienced
problems at Riley Road. (Defs.’ 56.1 ¶ 15; Pl.’s 56.1 ¶ 15.) She was the only
white employee of approximately 14 persons assigned to the day shift.
(McLaughlin Decl. ¶¶ 10, 36.) McLaughlin claims that she “was not
uncomfortable with the racial makeup of Riley Road per se, but was made
to feel uncomfortable by the way the black employees were treating her.”
(Pl.’s 56.1 ¶ 15.)
McLaughlin’s issues at Riley Road primarily arose from her
interactions with Cohen. Several incidents occurred shortly after
McLaughlin started, on or around January 6, 2009. (McLaughlin Decl. ¶¶
16, 20, 22?25.) Specifically, Cohen refused to sign the training book in
which McLaughlin recorded her on?the?job training progress, then “flung”
the book at McLaughlin. (Defs.’ 56.1 ¶ 47; Pl.’s 56.1 ¶ 47.) Later that day,
Cohen asked McLaughlin to comb an African American resident’s hair
without explaining the proper method. (McLaughlin Decl. ¶ 22.) After
watching McLaughlin struggle, Cohen stepped in and demonstrated with
a look of “disgust.” (McLaughlin Decl. ¶ 23.) Then, when McLaughlin put
on gloves before brushing the same resident’s teeth—as she had learned to
do in classroom training—Cohen reprimanded her for doing so.
(McLaughlin Decl. ¶¶ 24?25; Defs.’ 56.1 ¶ 47; Pl.’s 56.1 ¶ 47.)
Plaintiff asserts that, around the same time, an employee from Goshen
Day Treatment Program named Joyce was at Riley Road and explained to
plaintiff that “we’re all African Americans here,” that “we stick together”
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 4 of 14
and that Riley Road was “very cliquey.” (Pl.’s Counter 56.1 ¶¶ 13?14;
McLaughlin Decl. ¶ 28.) Defendants dispute this claim and allege that
Goshen employee Joyce Mack has denied making the statement. (Defs.’
Counter 56.1 ¶ 14.)
Additional confrontations took place between Cohen and McLaughlin
over the next several weeks. A fire drill was held at Riley Road on or about
January 13, and Cohen reprimanded McLaughlin for taking too long to
vacate the building. (Defs.’ 56.1 ¶ 56; Pl.’s 56.1 ¶ 56.) Plaintiff admits she
stopped to pick up a blanket, and in doing so, took longer than others, but
claims that she did not know that what she did was contrary to protocol.
(McLaughlin Decl. ¶ 34; Defs.’ 56.1 ¶ 57; Pl.’s 56.1 ¶ 57.) Additionally, on
January 17, plaintiff arrived at work and encountered Cohen and Williams
in the kitchen, eating eggs. (Defs.’ 56.1 ¶ 58; Pl.’s 56.1 ¶ 58.) Cohen refused
to share her eggs with McLaughlin. (Id.) Instead, Cohen gave McLaughlin
a look of “disgust” and left the room. (McLaughlin Decl. ¶ 38.) Williams
offered McLaughlin some of her eggs, but McLaughlin did not take any.
(Defs.’ 56.1 ¶ 59; Pl.’s 56.1 ¶ 59.)
Plaintiff makes additional claims about Cohen. She asserts that Cohen
permitted and encouraged McLaughlin’s co?workers to ignore her and
refuse to help her, but plaintiff neither observed Cohen doing so, nor was
she told that Cohen had done so. (Defs.’ 56.1 ¶¶ 48?50; Pl.’s 56.1 ¶¶ 48?50.)
McLaughlin also asserts that Cohen failed to train her. The two examples
she points to are the above?described grooming incident and an incident in
which Cohen failed to instruct her on how to use a device designed to lift
patients because that device was broken. (Defs.’ 56.1 ¶¶ 51?54; Pl.’s 56.1 ¶¶
51?54.) Finally, plaintiff asserts that Williams made mistakes during work,
but was not disciplined as McLaughlin was, and was instead befriended
and assisted by the other staff members. (McLaughlin Decl. ¶ 53; Pl.’s
Opp. at 17?18.) Plaintiff concedes that neither Cohen nor any other Riley
Road employee used any racial epithets or directed any racially
derogatory comment toward McLaughlin at any point during her tenure at
Riley Road. (Defs.’ 56.1 ¶¶ 46?47; Pl.’s 56.1 ¶¶ 46?47.)
Cohen and her supervisor Powe met with McLaughlin approximately
three weeks into her employment to discuss the issues McLaughlin was
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 5 of 14
having at Riley Road. (Defs.’ 56.1 ¶ 17; Pl.’s 56.1 ¶ 17.) The meeting was
tense from the outset. (Stmt. of William Powe dated Feb. 3, 2009, Ex. B. to
Bakst Decl.) Plaintiff began by explaining that she was “not a racist,” but
that she was upset by the situation Joyce had allegedly explained to her—
that the African American staff members “all stick together.” (Powe Stmt.,
Ex. B to Bakst Decl.; Defs.’ 56.1 ¶¶ 17?18; Pl.’s 56.1 ¶¶ 17?18.) Plaintiff then
complained that the staff was “very cliquish.” (Id.) Two days later, on
January 24, Williams complained to the overall supervisor of Riley Road,
Baskt, that McLaughlin had talked to others in the house about Williams’s
scores on qualifying tests and about the fact that Williams did not have a
driver’s license. (Defs.’ 56.1 ¶ 19; Pl.’s 56.1 ¶ 19; see also McLaughlin Decl. ¶
46.) Baskt then asked McLaughlin to refrain from gossiping. (Defs.’ 56.1 ¶
20; Pl.’s 56.1 ¶ 20.)
On approximately January 27, less than one month after she started
working for DDSO, plaintiff was sent to Goshen Day Treatment Program,
purportedly to diffuse some of the tension that had been developing at
Riley Road. (Defs.’ 56.1 ¶ 21; Pl.’s 56.1 ¶ 21; Email from Shari Bakst dated
January 30, 2009, Ex. C to Bakst Decl.) Nonetheless, McLaughlin appeared
“very upset” when she arrived at Goshen Day facility and complained to
the Goshen supervisor that the employees at Riley Road were “racist.”
(Defs.’ 56.1 ¶ 21; Pl.’s 56.1 ¶ 21.) Bakst had also been receiving reports that
McLaughlin complained about Cohen to her co?workers constantly. (Bakst
Decl. ¶ 19; Bakst Email, Ex. C to Bakst Decl.) Bakst and Powe met with
McLaughlin on January 30 to discuss her issues with the Riley Road staff.
(Defs.’ 56.1 ¶¶ 25?27; McLaughlin Decl. ¶ 50.) McLaughlin claims that at
this meeting, she was accused of “making disruptive racist remarks about
the staff of the house, gossiping about the other employees, and
complaining of not having enough work to do.” (McLaughlin Decl. ¶ 51.)
Plaintiff explained that, although she had no problem working with
anyone of any race, she did not fit in at the house—which employed
primarily persons who were “young,” “black,” and “cliquish”—because
she is white. (Defs.’ 56.1 ¶ 26; Pl.’s 56.1 ¶ 26.)
The day after that meeting Bakst met with plaintiff again after hearing
from Cohen that plaintiff was gossiping. (Defs.’ 56.1 ¶¶ 36?39; Pl.’s 56.1 ¶¶
36?39.) McLaughlin denies doing any more than repeating a rumor she had
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 6 of 14
heard from a third party to Bakst herself. (Defs.’ 56.1 ¶ 38; Pl.’s 56.1 ¶ 38.)
Nevertheless, Bakst again counseled plaintiff to stop passing along gossip,
explaining that it was causing problems between McLaughlin and other
staff members. (Defs.’ 56.1 ¶ 39; Pl.’s 56.1 ¶ 39.)
In early February, McLaughlin was transferred to the evening shift,
which meant that Cohen was no longer plaintiff’s direct supervisor.2
(McLaughlin Decl. ¶ 62.) McLaughlin’s experience improved after this
change. (Id.) Nevertheless, on February 2, Bakst received reports of
plaintiff commenting that the staff liked Williams better than McLaughlin
because Williams is black. (Defs.’ 56.1 ¶ 40; Pl.’s 56.1 ¶ 40.) One week later,
Powe informed Bakst that staff members had seen McLaughlin bring a
recording device to work for the purpose of gathering information about
Riley Road employees.3 (Defs.’ 56.1 ¶ 43; Pl.’s 56.1 ¶ 43; Email from
William Powe dated Feb. 11, 2009, Ex. H to Bakst Decl.)
On February 17, 2009—approximately six weeks after plaintiff began
work as a probationary DAT—Bakst requested that McLaughlin be
terminated. (Defs.’ 56.1 ¶ 44; Pl.’s 56.1 ¶ 44.) Bakst claims the request was
based on two primary considerations: Riley Road employees on both the
day and evening shifts had been trying to limit contact with McLaughlin
because of her behavior, and McLaughlin’s constant gossiping about her
fellow employees continued to be a problem. (Bakst Decl. ¶ 13.) On the
same day, McLaughlin made a formal complaint of racial discrimination
with DDSO’s affirmative action officer. (Defs.’ 56.1 ¶ 63; Pl.’s 56.1 ¶ 63.)
The termination request was reviewed by the director of human resources
and approved by the director of DDSO, both of whom are Caucasian.
(Defs.’ 56.1 ¶ 45; Pl.’s 56.1 ¶ 45; Bakst Decl. ¶ 14.) Cohen was not consulted
about and took no part in the decision to fire McLaughlin. (Defs.’ 56.1 ¶¶
66?67; Pl.’s 56.1 ¶¶ 66?67.) On February 18, DDSO notified plaintiff in
writing that her employment was terminated, effective February 27, 2009.
2 The record is unclear as to the race of plaintiff’s new evening?shift supervisor, Jerry
Haney. (See McLaughlin Decl. ¶¶ 19, 62.)
3 The Court describes the reports made to Bakst solely for the uncontested facts that
she received such complaints about plaintiff. The Court does not consider the truth
vel non of the underlying allegations.
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 7 of 14
(Defs.’ 56.1 ¶ 64; Pl.’s 56.1 ¶ 64; Ltr. to Patty McLaughlin dated February
18, 2009, Ex. J to Bakst Decl.) A few months later, in July 2009, Williams
was also terminated, as a result of timeliness and attendance issues. (Bakst
Decl. ¶ 12.)
B. Procedural History
Plaintiff filed a complaint with the New York State Division of Human
Rights (“SDHR”) in April 2009, claiming she was subject to disparate
treatment because of race in violation of Title VII. (SDHR Compl. dated
April 7, 2009, Ex. C to Decl. of Jason Buskin, Esq. dated Feb. 21, 2013.)
McLaughlin authorized SDHR to accept the complaint on behalf of the
U.S. Equal Employment Opportunity Commission (“EEOC”). (Id.) Six
months later, SDHR found no probable cause to support plaintiff’s
allegations. (SDHR Closing Stmt. dated October 25, 2010, Ex. F to Buskin
On February 23, 2011, plaintiff filed this action.
Based on the foregoing facts, plaintiff brings claims pursuant to Title
VII and section 1983. First, she claims that she was unlawfully
discriminated against because of her race by her employer in violation of
Title VII. She also appears to claim, for the first time on summary
judgment, that her employer violated Title VII by retaliating against her.
Finally, she alleges that Cohen’s actions violated McLaughlin’s equal
protection rights. The undisputed facts support the entry of judgment in
favor of defendants.
A. Summary Judgment Standard
A grant of summary judgment is appropriate where “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). Thus, if a party “fails to
make a showing sufficient to establish the existence of an element essential
to that party?s case, and on which that party will bear the burden of proof
at trial,” the district court must grant summary judgment in favor of the
opposing party. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Brown v.
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 8 of 14
Dep’t of Educ., No. 10 Civ. 5023 (SHS), 2012 WL 1319859, at *4 (S.D.N.Y.
April 11, 2012). In undertaking this inquiry, the Court “resolv[es] all
ambiguities and draw[s] all inferences in favor of the non?moving
party.”Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
“Nonetheless, the party opposing summary judgment ‘may not rely on
mere conclusory allegations nor speculation, but instead must offer some
hard evidence’ in support of its factual assertions.” Self v. Dep?t of Educ.,
844 F. Supp. 2d 428, 434 (S.D.N.Y. 2012) (quoting D’Amico v. City of N.Y.,
132 F.3d 145, 149 (2d Cir. 1998)).
B. Plaintiff Has Not Satisfied Her Prima Facie Title VII Burden
To establish a prima facie case of racial discrimination pursuant to
Title VII, a plaintiff must demonstrate: “1) he belonged to a protected class;
2) he was qualified for the position; 3) he suffered an adverse employment
action; and 4) the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory intent.” Terry v.
Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). The plaintiff’s burden at this stage
is minimal, but she must “proffer admissible evidence [that] would be
sufficient to permit a rational finder of fact to infer a [discriminatory]
motive.” See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005). If the plaintiff makes such a showing, the burden then shifts to her
employer to provide a legitimate, nondiscriminatory explanation for its
conduct. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the
defendant meets this burden, the plaintiff must provide evidence that
would allow a rational factfinder to determine that the defendant’s
proffered rationale is a pretext for unlawful discrimination. Alston v.
Microsoft Corp., 851 F. Supp. 725, 731 (S.D.N.Y. 2012).
Here, plaintiff has failed to make a prima facie case. The Court
assumes for the purpose of argument that McLaughlin is a member of a
protected class and was qualified for her position. It finds that she suffered
an adverse employment action. Plaintiff has not, however, produced
sufficient evidence to allow a rational finder of fact to infer that her
employer’s actions were racially motivated and therefore has not fulfilled
her initial burden of proof.
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 9 of 14
1. Alleged Adverse Employment Actions
Prior to determining whether the alleged adverse employment actions
that plaintiff suffered occurred under circumstances giving rise to an
inference of racial discrimination, the Court must determine what those
adverse employment actions are.
An adverse employment action is “a materially adverse change in the
terms and conditions of employment.” Joseph v. Leavitt, 465 F.3d 87, 90 (2d
Cir. 2006) (internal quotations and citation omitted). It must be “more
disruptive than a mere inconvenience or an alteration of job
responsibilities.” Terry, 336 F.3d 138 (internal quotations and citation
omitted). “[M]aterially adverse changes include termination of
employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices unique to a particular situation.”
Id. (internal quotations, alterations, and citation omitted). In addition,
“harms suffered in the workplace are cognizable under Title VII, even
when they are not the result of tangible employment actions, if they arise
from conduct (1) that is objectively severe or pervasive—that is, if it creates
an environment that a reasonable person would find hostile or abusive, . .
. (2) that the plaintiff subjectively perceives as hostile or abusive, . . . and
(3) that creates such an environment because of . . . [a] characteristic
protected by Title VII . . . .” Gregory v. Daly, 243 F.3d 687, 691?92 (2d Cir.
2001) (internal quotations, alterations, and citations omitted). “Isolated
instances of harassment ordinarily do not rise to this level.” Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000).
In her complaint, plaintiff alleges that the adverse employment actions
she suffered were termination and discrimination based on her race
during the course of a training program.4 On summary judgment,
4 Plaintiff also conclusorily alleges that she was subject to employment practices that
had a disparate impact upon her because of her race. (Compl. ¶ 83.) Because she has
nowhere pointed to “a facially neutral employment policy or practice [that had] a
significant disparate impact,” this claim decidedly fails. Brown v. Coach Stores, Inc., 163
F.3d 706, 712 (2d Cir. 1998).
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 10 of 14
however, she argues that she was also subjected to a hostile work
Based on the record, the Court concludes that the only adverse
employment action McLaughlin has demonstrated is her termination. The
conduct that she now attempts to frame as creating a hostile work
environment—principally Cohen’s disciplining of McLaughlin and her
various unfriendly or rude acts toward McLaughlin—is not objectively
severe or pervasive enough to meet that test. It appears that a personality
conflict existed between Cohen and McLaughlin. Cohen may have disliked
McLaughlin; she may have been uncivil or even unkind to McLaughlin.
But it is well?established that Title VII “does not set forth a general civility
code for the American workplace.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (internal quotations and citation omitted).
“[T]he ordinary tribulations of the workplace, such as the sporadic use of
abusive language,” simply do not create an actionable hostile work
environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998)
(internal quotations and citation omitted). The conduct McLaughlin points
to here amounts to nothing more than a rather quotidian workplace
conflict. It therefore does not constitute a materially adverse change in the
conditions of her employment.
2. The Circumstances of Plaintiff’s Termination Do Not Give
Rise to an Inference of Discrimination
Assuming that plaintiff is a member of a protected class and that she
was qualified for her position, and finding that she suffered an adverse
employment action—her termination—the Court turns to the final element
of her prima facie case: whether a rational factfinder could conclude her
termination occurred under circumstances giving rise to an inference of
discrimination. The answer is no.
A plaintiff may raise an inference of discrimination “by showing that
the employer subjected him to disparate treatment, that is, treated him less
favorably than a similarly situated employee outside his protected
group.”Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). To
proceed under a disparate treatment theory, “plaintiff must show she was
similarly situated in all material respects to the individuals with whom she
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 11 of 14
seeks to compare herself.” Id. (internal quotations and citation omitted).
Plaintiff must “show that similarly situated employees who went
undisciplined engaged in comparable conduct.” Id. The conduct need not
be identical, but it should be of “comparable seriousness.” Id. (citation
McLaughlin relies upon this theory here; she concedes that nobody at
Riley Road ever expressly demonstrated racial animus toward her. (Pl.’s
Opp. at 17.) Instead, she claims that Selena Williams was a similarly
situated employee of a different race who was treated more favorably than
McLaughlin and Williams were not sufficiently similarly situated,
however, that their divergent treatment suggests hidden racial animus. See
Shumway v. United Parcel Serv., Inc., 118 F. 3d 60, 64?65 (2d Cir. 1997).
Although Williams and McLaughlin had the same position, the same
supervisor, and started on the same day, salient differences exist. The
record demonstrates that McLaughlin’s behavior at work led to her
termination; and there is no indication whatsoever that Williams’s conduct
was similar. Specifically, McLaughlin was counseled a number of times
about the fact she had been impermissibly gossiping about other
employees, and she clearly had a contentious relationship with her
supervisor, Tiffany Cohen. Although McLaughlin denies that she ever
gossiped or spread rumors, the record demonstrates that she often
complained about her supervisor and coworkers to her fellow employees.
(See, e.g., Defs.’ 56.1 ¶ 19; Pl.’s 56.1 ¶ 19; Bakst Decl. ¶ 19; Bakst Email, Ex.
C to Bakst Decl.; McLaughlin Decl. ¶¶ 18, 27, 32.) The record further
shows that McLaughlin’s complaints about race created tension in an
intimate working environment designed to serve a vulnerable population.
There is no evidence that Williams engaged in any behavior that was
analogous or that created any tension. As such, the two are not similarly
situated to the extent that would permit an inference that any difference in
their treatment was the product of racial discrimination.
Moreover, Williams was not treated markedly differently than
McLaughlin with regard to the material conditions of her employment—as
opposed to day?to?day interactions with other employees. Although the
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 12 of 14
record indicates that the Riley Road staff was friendlier to and more
accepting of Williams, Williams was fired only a few months after
McLaughlin. Williams’s termination was based on her timeliness and
attendance issues, whereas McLaughlin’s termination was based on her
inability to work with other staff members. Nevertheless, the two DATs’
conduct was of comparable seriousness to the extent that it hampered their
effectiveness at work and their ability to care for the residents of Riley
Road. McLaughlin spent her time complaining and was easily upset,
whereas Williams was simply not present. And both DATs were
disciplined in the same way: they were fired.
Finally, the Court notes that, although Cohen—the source of many of
McLaughlin’s complaints—is African American, Shari Bakst and her
supervisors, who were responsible for the decision to fire McLaughlin, are
white. The parties agree that Cohen was not consulted about, and took no
part in, the decision to fire McLaughlin. This fact further undercuts
McLaughlin’s claim that she was terminated based on her race.
This is not to say that race was a complete non?issue at Riley Road.
Although McLaughlin insists that her initial concerns about the racial
makeup of the Riley Road staff stemmed from another staff member’s
isolated comment about the fact that the majority of the employees were
African American and “cliquey,” it is McLaughlin herself who repeatedly
accused others of racism and constantly complained about being treated
poorly because she is white. There is no evidence—apart from
McLaughlin’s speculation about the motivation behind others’ behavior—
that this was the case or that anyone else at Riley Road had a problem with
the racial composition of the staff.
Because no rational factfinder could infer a racially discriminatory
motive based on the circumstances of McLaughlin’s firing, she has not met
her prima facie burden. Therefore, defendants’ motion for summary
judgment is granted with regard to plaintiff’s racial discrimination claim.
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 13 of 14
C. Even If Plaintiff Had Properly Raised a Retaliation Claim, It
Plaintiff contends for the first time on summary judgment that she
was subjected to retaliation for her protected activity in violation of Title
VII. Defendants correctly point out that McLaughlin did not raise this
claim in administrative proceedings before the SDHR or in her complaint
and never sought to amend her complaint to add this cause of action. As
such, defendants were not put on notice that plaintiff intended to raise a
claim of retaliation, and this claim is not properly before the Court.
Even if plaintiff had properly raised a retaliation claim, however,
defendants have provided evidence of a legitimate, nondiscriminatory
explanation for her firing. As the Supreme Court recently explained, “Title
VII retaliation claims require proof that the desire to retaliate was the but?
for cause of the challenged employment action.” Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). The evidence presented here
demonstrates that plaintiff’s behavior was causing problems—and that
defendants had addressed these problems on multiple occasions—prior to
her engaging in any protected activity. As such, no rational trier of fact
could find that plaintiff’s firing was “because” of her complaint to the
equal employment officer, rather than the misbehavior that had inspired
several disciplinary meetings. See id.
D. Plaintiff Has Not Demonstrated That Her Equal Protection
Rights Were Violated
McLaughlin additionally contends, pursuant to 42 U.S.C. § 1983, that
Cohen violated McLaughlin’s rights under the Equal Protection Clause of
the U.S. Constitution. The Fourteenth Amendment protects individuals
from discrimination in public employment. Back v. Hastings on Hudson
Union Free Sch. Dist., 365 F.3d 107, 117?18 (2d Cir. 2004). To support a
section 1983 claim for recovery for a violation of this right, a plaintiff must
prove that she suffered purposeful discrimination at the hands of a state
actor based on a protected characteristic. Id.
McLaughlin alleges that Cohen’s treatment of her violated
McLaughlin’s equal protection rights. The inquiry as to whether Cohen’s
Case 1:11-cv-01242-SHS-GAY Document 39 Filed 07/30/13 Page 14 of 14