"Causation may be proved by showing that the retaliatory action was close in time to the protected activities; that other similarly situated employees were treated differently; or by offering direct proof of retaliatory animus." Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 450 (S.D.N.Y. 2002) (citing Clarke v. City of New York, No. 98-CV-3715, 2011 WL 876926 (S.D.N.Y. Aug. 1, 2001). If a plaintiff satisfies this showing, the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action.
Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation marks omitted). While a "substantial time lag between the protected activity and the adverse employment action" bodes poorly for a retaliation claim, Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 450 (S.D.N.Y. 2002), a plaintiff may prove causation, alternatively, "by showing . . . that other similarly situated employees were treated differently[.]" Id. (citing Clarke v. City of New York, No. 98-CV-715, 2001 U.S. Dist. LEXIS 11136, at *18-19 (E.D.N.Y. Aug. 1, 2001)).
) As discussed in connection with Plaintiff's race discrimination claim, however, these assertions lack any evidentiary basis in the record, and thus do not raise a genuine issue of material fact with respect to whether Defendants' reasons for Plaintiff's termination were pretextual. See Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 448 (S.D.N.Y. 2002) ("Where, as in this case, the employer provides convincing evidence to explain its conduct, and plaintiff's argument consists of purely conclusory allegations of retaliation, the Court may conclude that no material issue of fact exists and grant summary judgment for the employer."). Similarly, Plaintiff offers no evidence to support his bare statement that he was terminated for complaining about religious discrimination.
To show individuals to be similarly situated in all relevant respects, the Second Circuit held that it must be shown that others "engaged in comparable conduct." Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997); see also Alien v. St. Cabrini Nursing Home, Inc., 198 F. Supp.2d 442, 450 (S.D.N.Y. 2002) ("other employees are deemed similarly situated to plaintiff only where they are subject to the same workplace standards and have been disciplined for conduct of comparable seriousness."); Lanear v. Safeway Grocery. 843 F.2d 298, 301 (8th Cir. 1988) (holding that "similarly situated" requires a showing "that the other employee's acts were of `comparable seriousness' to [plaintiff's] own infraction"). In Shumway. the court held this to require the plaintiff to show that others engaged in similar behavior, involving "a long term relationship, harassing behavior and lying."
” Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation marks omitted). While a “substantial time lag between the protected activity and the adverse employment action” bodes poorly for a retaliation claim, a plaintiff may prove causation, alternatively, “by showing . . . that other similarly situated employees were treated differently.” Allen v. St. Cabrini Nursing Home, Inc., 198 F.Supp.2d 442, 450 (S.D.N.Y. 2002) (citation omitted). Employees must be similarly “situated in all material respects.”
See Mihalik, 715 F.3d at 116; see also Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 449 (S.D.N.Y. 2018) (describing how for retaliation claims, Title VII and NYSHRL impose a but for causation, whereas for NYCHRL claims, the plaintiff must show that the retaliation was pretextual or motivated "at least in part" by an impermissible motive). Finally, Defendants contend that Plaintiff has not shown that other similarly situated employees were treated differently, relying on Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 450 (S.D.N.Y. 2002). Defendants argue that JDR treated Mandel in a similar manner, who was also on probationary appointment.
, aff'd, 104 F.3d 356 (2d Cir. 1996); see also Allen v. St. Cabrini Nursing Home, Inc., 198 F.Supp.2d 442, 445 (S.D.N.Y. 2002) (granting summary judgment to defendant where plaintiff's “sole support” for Title VII claim was “conclusory allegations of an elaborate conspiracy to persecute her”), aff'd, 64 Fed.Appx. 836 (2d Cir. 2003). If they were motivated by her parental status and perceived relationship status, as Owens claims, these fabrications were an odd way of showing it: the reports both conclude that Owens was not showing favoritism or laboring under a conflict.
It is true that Gale continued to collect “significant overtime dollars as a Bridgeport police officer” from 2017 to 2020, and in fact, made more in overtime in 2018 and 2019 than he did when he was still teaching. See ECF No. 33, Material ¶ 18; Allen v. St. Cabrini Nursing Home, Inc., 198 F.Supp.2d 442, 449 (S.D.N.Y. 2002) (finding that the denial of an opportunity for overtime for one day does not constitute an adverse employment action because the plaintiff had other overtime opportunities). But Gale cites more than the loss of opportunity for overtime; he also argues that the instructor position is “a prestigious assignment, ” ECF No. 34 at 25, and has submitted evidence that the removal from the instructor position put his POST certifications in jeopardy because renewal requires that an applicant teach at least one class in that subject matter each year, Id. at 26.
Causation may be established by showing that the retaliation was close in time to the plaintiff's protected action, that similarly situated employees were treated differently, or by direct proof of retaliatory intent. Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 450 (S.D.N.Y. 2002); see Barkley v. Penn Yan Sch. Dist., 442 F. App'x 581, 584 (2d Cir. 2011). After the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action.
f three shifts. See Cham v. Station Operators, Inc ., 685 F.3d 87, 94 (1st Cir.2012)(holding that an employee's loss of three shifts on holidays "simply does not rise to the level of an adverse employment action"); Embry v. Callahan Eye Found. Hosp ., 147 Fed.Appx. 819, 829 (11th Cir.2005)(an employee's one-day suspension resulting in a loss of $88.73 was not an adverse action because it did not constitute "a serious and material change in the terms, conditions, or privileges of employment"); Shaver v. Rottinghaus Co., Inc ., 09–1193–EFM, 2011 WL 3880893, at *18 (D.Kan. Sept. 2, 2011)(finding that employer's reduction of employee's hours by approximately 2 hours a week was de minimis harm and did not constitute an adverse employment action); Roe v. Estee Lauder Companies, Inc. , 3:04CV429, 2007 WL 1024120, at *11 (S.D.Ohio Feb. 7, 2007)(finding that a "temporary reduction of her work hours" and the resulting "de minimis reduction in pay" were not materially adverse employment action); Allen v. St. Cabrini Nursing Home, Inc. , 198 F.Supp.2d 442, 449 (S.D.N.Y.2002)(denial of opportunity to work one day's worth of overtime not an adverse employment action where plaintiff had other opportunities to earn overtime pay); Rivers v. Potter , No. 05–4868, 2007 WL 4440880, at *7 (D.N.J.2007)(denial of a single instance of overtime work did not constitute an adverse employment action sufficiently impacting the terms, conditions, or privileges of employment). Accordingly, Ms. Haji has failed to allege that she was subjected to a materially adverse action—a necessary element of a prima facie case for religious accommodation, discrimination, and retaliation claims—and her claims will be dismissed.