) 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.
” 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.
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.
While there is no bright-line rule for how close in time the protected activity and the adverse employment action must be, see Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001), claims are routinely dismissed when as few as three months elapse between the protected activity and the alleged retaliation. Breeden, 532 U.S. at 273-74 (citing with approval cases dismissing retaliation claims where adverse employment action followed protected activity by three to four months); Hill v. Citibank Corp., 312 F. Supp. 2d 464, 480-81 (S.D.N.Y. 2004); Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 450 (S.D.N.Y. 2002); Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999). "If plaintiff sustains the initial burden [to establish a prima facie case], a presumption of retaliation arises.
Because the underlying facts of the offered non-discriminatory reason for termination are thus undisputed, Farzan can raise no genuine issue of material fact as to whether the Defendants' reasons were pretextual as a matter of law. See Pruitt v. Metcalf & Eddy Inc., No. 03 Civ. 4780 (DF), 2006 WL 39621, at *14 (S.D.N.Y. Jan. 6, 2006) (no triable issue surrounding pretext because plaintiff conceded facts underlying insubordination, employer's proffered basis for termination); Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 451 (S.D.N.Y. 2002), aff'd, 64 F. App'x 836 (2d Cir. 2003) (no issue of material fact surrounding alleged pretext where plaintiff admitted she refused to cooperate in internal investigation).
Claims of retaliation are, however, routinely dismissed when as few as three months elapse between the protected activity and the alleged act of retaliation. See Clark County School District v. Breeden, 532 U.S. 268, 273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (citing with approval cases dismissing retaliation claims where adverse employment action followed protected activity by three to four months); Hill v. Citibank Corp., 312 F.Supp.2d 464 (S.D.N.Y.2004); Allen v. St. Cabrini Nursing Home, Inc., 198 F.Supp.2d 442, 450 (S.D.N.Y.2002) (citing Hollander, 895 F.2d at 84–85;Nicastro v. Runyon, 60 F.Supp.2d 181, 185 (S.D.N.Y.1999)); Ponticelli v. Zurich American Ins. Group, 16 F.Supp.2d 414, 435 (S.D.N.Y.1998); Zenni v. Hard Rock Cafe Int'l, Inc., 903 F.Supp. 644, 656 (S.D.N.Y.1995). Here, Plaintiff's complaints to Celestino and Brandiss about Polish clients having to wait longer than other clients and Plaintiff's question of “do I have to go through all of this because I'm Polish,” occurred in 2001, some seven years before the August 12, 2008, incident that resulted in her termination.
In light of the fact that Plaintiff had other opportunities to work extra time, her exclusion from the early shift arguably is not materially adverse. SeeAllen 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); see alsoPettit v. Steppingstone Ctr. for the Potentially Gifted, No. 08–CV–12205, 2009 WL 2849127, at *12–13 (E.D.Mich. Sept. 1, 2009) (employment contract limiting plaintiff to certain number of hours per week, unless authorized by supervisor, was not a materially adverse employment action because there was no evidence supervisor refused a request to work additional hours, and there was no burden to plaintiff to seek permission to do so). And, of course, “[c]ourts in this [C]ircuit have held that an unfavorable work schedule does not constitute an adverse employment action.”
The law in the Second Circuit holds that "[c]ausation 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); see also, e.g., Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)). As for timing, the first adverse action presented for review is the negative evaluation Stafford received in or around April 2000, two years after Stafford's complaint to Martin, far too long a delay to support an inference of a causal connection.
Claims of retaliation are routinely dismissed when as few as three months elapse between the protected activity and the alleged act of retaliation. See Hill v. Citibank Corp., 312 F. Supp. 2d 464 (S.D.N.Y. 2004); Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 450 (S.D.N.Y. 2002) (citing Hollander v. American Cyanamid Co., 895 F.2d 80, 84-85 (2d Cir. 1990); Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999)); Ponticelli v. Zurich American Ins. Group, 16 F. Supp. 2d 414, 435 (S.D.N.Y. 1998); Zenni v. Hard Rock Cafe Int'l, Inc., 903 F. Supp. 644, 656 (S.D.N.Y. 1995)). Based on the foregoing, the court will next address plaintiff's retaliatory hostile work environment claim.