Williams v. N.Y. State Unified Court Sys. Office of Court Admin.

Full title: SHANNON WILLIAMS, Plaintiff, v. NEW YORK STATE UNIFIED COURT SYSTEM OFFICE…

Court: United States District Court, S.D. New York

Date published: Aug 10, 2021

16-CV-2061 (VSB) (S.D.N.Y. Aug. 10, 2021)

Opinion

16-CV-2061 (VSB)

08-10-2021

SHANNON WILLIAMS, Plaintiff, v. NEW YORK STATE UNIFIED COURT SYSTEM OFFICE OF COURT ADMINISTRATION, JOSEPH ACCETTA, individually and as Chief Clerk of the Westchester County Surrogate's Court, JOHANNA O'BRIEN, individually and as Deputy Chief Clerk of the Westchester County Surrogate's Court, SUSAN NEWMAN LOEHR, individually and as Commissioner of Jurors of Westchester County, Defendants.

Sandra D. Parker Law Office of Sandra D. Parker New York, New York Counsel for Plaintiff Michael A. Berg Office of the Attorney General of the State of New York Counsel for Defendants Joseph Accetta, Johanna O'Brien, and Susan Newman Loehr Pedro A. Morales New York State Office of Court Administration Counsel for Defendant New York State Unified Court System Office of Court Administration

VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE

Sandra D. Parker Law Office of Sandra D. Parker New York, New York Counsel for Plaintiff

Michael A. Berg Office of the Attorney General of the State of New York Counsel for Defendants Joseph Accetta, Johanna O'Brien, and Susan Newman Loehr

Pedro A. Morales New York State Office of Court Administration Counsel for Defendant New York State Unified Court System Office of Court Administration

OPINION & ORDER

VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE

I. Factual Background......................................................................................................2

A. The Parties.............................................................................................................2

B. Plaintiffs Work History........................................................................................3

1. Performance Evaluations...................................................................................4

2. Counseling, Workplace Interactions, and Time and Leave...............................5

3. Disciplinary Proceedings...................................................................................7

4. Termination of Plaintiff s Employment............................................................9

C. Discrimination Complaints and Allegations.......................................................11

II. Procedural History..................................................................................................12

III. Legal Standard........................................................................................................15

IV. Discussion...............................................................................................................17

A. Retaliation and Discrimination Claims...............................................................17

1. Timeliness of Claims.......................................................................................17

a. Applicable Law..............................................................................................17

b. Application.....................................................................................................18

2. Discrimination Claims.....................................................................................21

a. Applicable Law..............................................................................................22

b. Application.....................................................................................................25

i. Adverse Employment Actions....................................................................25

1) Performance Evaluations .......................................................................... 26

2) Time and Leave ........................................................................................ 27

3) Challenges to Authority and Complaints .................................................. 28

4) May 2015 Discipline and June 2015 Termination .................................... 29

ii. Involvement of the Individual Defendants ................................................. 29

1) Defendant Accetta .................................................................................... 30

2) Defendant Loehr ....................................................................................... 32

iii. Inference of Discrimination ...................................................................... 33

1) 2014 Evaluation ........................................................................................ 34

2) May 2015 Discipline ................................................................................ 36

3) June 2015 Termination ............................................................................. 37

3. Retaliation Claims ........................................................................................... 38

a. Applicable Law .............................................................................................. 38

b. Application ..................................................................................................... 43

i. Protected Activity ........................................................................................ 43

ii. Claim Against OCA ................................................................................... 45

1) Adverse Employment Actions .................................................................. 45

2) Casual Connection .................................................................................... 47

iii. Claims Against Individual Defendants ..................................................... 50

1) Personal Involvement of Defendant Accetta ............................................ 51

2) Prima Facie Case......................................................................................51

a) Adverse Employment Actions..............................................................51

b) Casual Connection................................................................................53

4. Legitimate Non-Discriminatory and Non-Retaliatory Reasons......................56

B. Hostile Work Environment Claim........................................................................58

V. Conclusion................................................................................................................61

Plaintiff Shannon Williams, an African-American male and former clerical employee, brings claims of race discrimination, retaliation, and hostile work environment against his former employer, the New York Unified Court System Office of Court Administration (“OCA”), Joseph Accetta, Johanna O'Brien, and Susan Newman Loehr in their individual and official capacities (the “Individual Defendants, ” and collectively with OCA, “Defendants”). Specifically, Plaintiff asserts: (1) a claim against OCA for racial discrimination, retaliation, and hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (“Title VII”) (“Count I”); (2) a claim against the Individual Defendants in their individual capacities for deprivation of equal protection on the basis of race, in violation of 42 U.S.C. § 1983 (“§ 1983”) (“Count III”); and (3) a claim against the Individual Defendants in their individual capacities for disparate treatment on the basis of race, in violation of New York State Human Rights Law, N.Y. Exec. Law 290 et seq. (“NYSHRL”) (“Count IV”).

OCA moves for summary judgment on Count I on the grounds that (1) many of Plaintiff's claims are time-barred; (2) Plaintiff failed to make a prima facie case of disparate treatment or retaliation under Title VII; (3) Plaintiff failed to show that the job actions taken against him were a pretext for discrimination; and (4) Plaintiff's Title VII hostile work environment claim is barred under the law of the case doctrine. The Individual Defendants move for summary judgment on Counts III and IV on the grounds that (1) many of Plaintiff's claims are time-barred; (2) Defendants Accetta and Loehr were not involved in the decision to discipline and terminate Plaintiff's employment; (3) Plaintiff failed to make a prima facie case of disparate treatment or retaliation; and (4) Plaintiff has not shown that job actions taken against him were a pretext for discrimination. For the reasons stated herein, OCA's and the Individual Defendants' motions for summary judgment are GRANTED.

I. Factual Background¹

1 I note that Plaintiff “disputes” many of the facts within Defendants' Local Rule 56.1 statements. However, many of these disputes are not about the facts themselves, but rather the implication of said facts. Additionally, Plaintiff uses his response to add in facts unrelated to those raised by Defendants. Both of these actions are improper under Local Rule 56.1, and I disregard the improper assertions. See LG Capital Funding, LLC v. PositiveID Corp., No. 17-CV-1297-NGG-SJB, 2019 WL 3437973, at *2 (E.D.N.Y. July 29 2019) (“The Court can . . . disregard legal conclusions or unsubstantiated opinions in a Local Rule 56.1 statement.”) (internal quotation marks omitted); Crump v. Fluid Handling, LLC, No. 17-CV-45, 2019 WL 2145929, at *2 (W.D.N.Y. Mar. 29, 2019) (“Rather than scrutinize a Rule 56.1 statement line by line, a court may simply disregard any improper assertions or inadmissible evidence.”).

A. The Parties

Plaintiff is an African-American male who began working for OCA in August 2000 as a Court Office Assistant assigned to the Westchester County Surrogate's Court (“Surrogate's Court”). (SAC ¶ 37; OCA 56.1 ¶¶ 13-14; Pl. Decl. ¶¶ 4-5).² In March 2007, Plaintiff was appointed to the Senior Surrogate's Court Clerk title and remained in that position until June 2015 when his employment was terminated. (OCA 56.1 ¶¶ 14, 67.) In that position, Plaintiffs duties related to probate, administration, and accounting, and included supervising other employees. (Id. ¶ 15; Morales Decl. Ex. A.)³ Plaintiff was also a member of the Tribune Society Inc. of the Courts of New York State (“Tribune Society”), which offers workshops and other opportunities for professional development of its members and works to promote fair and equal treatment of its minority members. (Pl. Decl. ¶¶ 10-12.)

2 “SAC” refers to Plaintiffs second amended complaint (“Second Amended Complaint”), filed on December 13, 2016. (Doc. 33.) “OCA 56.1” refers to OCA's Statement of Material Facts Pursuant to Local Rule 56.1, filed on June 6, 2019. (Doc. 204.) “Pl. Decl.” refers to the declaration of Plaintiff Shannon Williams, filed on September 19, 2019. (Doc. 212-3.)

3 “Morales Decl.” refers to the Declaration of Pedro Morales in Support of OCA's Motion for Summary Judgment, filed on June 6, 2019. (Doc. 200.)

Defendant Joseph Accetta, a Caucasian male, was the Chief Clerk of the Surrogate's Court from January 2011 through April 2015. (SAC ¶ 11; OCA 56.1 ¶ 7.) His duties included the management and supervision of employees working in the Surrogate's Court, including the supervision of Plaintiff and Defendants O'Brien and Loehr, as well as subordinates who reported to Plaintiff. (SAC ¶ 12.) Defendant Johanna O'Brien, a Caucasian female, is the current Chief Clerk of the Surrogate's Court and served as Deputy Chief Clerk of the Surrogate's Court from April 2007 through January 2019. (Id. ¶ 13; OCA 56.1 ¶ 8.) Her duties as Deputy Chief Clerk of the Surrogate's Court included the management and supervision of employees at the Surrogate's Court, including Plaintiff and the subordinates who reported to Plaintiff. (SAC ¶ 14.) From April 3, 2015 until June 14, 2015, non-party Mark Annunziata was the Acting Chief Clerk of the Surrogate's Court. (OCA 56.1 ¶ 12.) Defendant Loehr, a Caucasian female, was the Commissioner of Jurors of Westchester County, and did not supervise Plaintiff at any point during his employment. (SAC ¶¶ 15-16.) During the relevant time period based upon the Second Amended Complaint, the Honorable Alan D. Scheinkman was the OCA Administrative Judge for the Ninth Judicial District and responsible for, among other things, administering trial court operations in Westchester County. (OAC 56.1 ¶ 11.) During that same timeframe, the Honorable Michael V. Coccoma was Deputy Chief Administrative Judge for Courts Outside of New York City. (Id. ¶ 10.)

B. Plaintiff's Work History

Throughout Plaintiff's employment at the Surrogate's Court he was the subject of varied performance evaluations, numerous complaints from court users, and multiple disciplinary proceedings. I describe below Plaintiff's: (1) Plaintiff's performance evaluations; (2) counseling, workplace interactions, punctuality, and leave; (3) disciplinary proceedings; and (4) termination of employment.

1. Performance Evaluations

In 2007, Plaintiff received a performance evaluation that indicated that he met all expectations, and met his job requirements overall in his position as a Senior Court Office Assistant. (Pl. Decl. ¶ 15; Parker Decl. Ex. P-1.)⁴ After being appointed to the Senior Surrogate's Court Clerk title, Plaintiff successfully completed his probationary period. (Pl. Decl. ¶ 17; Parker Decl. Exs. P-2, P-3.)

4 “Parker Decl.” refers to the Declaration of Sandra Parker in Opposition to Defendants' Motions for Summary Judgment, filed on September 19, 2019. (Doc. 212.)

Plaintiff asserts that after 2007, he began to receive negative evaluations. (Pl. Decl. ¶¶ 18-19.) Plaintiff's performance evaluation for the 2008 calendar year (“2009 Evaluation”), completed by Defendant O'Brien, indicated that his overall job performance “Needs Improvement.” (Parker Decl. Ex. P-4.) The evaluation noted that “Shannon needs to remember that as a Senior Court clerk he represents the Surrogate in a position of responsibility and as such he must subscribe to a higher standard of professional conduct.” (Id.) Plaintiff's evaluation for the 2010 calendar year (“2011 Evaluation”), completed by Defendant Accetta, found that Plaintiff “Meets Job Requirements” and that he “Meets Expectations” in each category. (Pl. Decl. Ex. P-12.) Plaintiff's evaluation for the 2011 calendar year (“2012 Evaluation”), also completed by Defendant Accetta, indicated that his overall job performance “Meets Job Requirements” and that he “Meets Expectations” in each category. (OCA 56.1 ¶ 33; Pl. Resp. OCA 56.1 ¶ 33; Pl. Decl. Ex. P-13.)⁵ It also noted that Plaintiff was “Generally - punctual in AM - any infractions do NOT affect service to public.” (Pl. Decl. Ex. P-13.) Plaintiff's evaluation for the 2012 calendar year (“2013 Evaluation”), completed by Defendant O'Brien, indicated his overall job performance “Meets Job Requirements”, and indicated that he needed improvement in certain categories including interactions with the public, cooperation with supervisors, punctuality, and procedures for using leave accruals. (OCA 56.1 ¶ 35; Pl. Resp. OCA 56.1 ¶ 35; Morales Decl. Ex. H.) Plaintiff's evaluation for the 2013 calendar year (“2014 Evaluation”), completed by Defendant O'Brien, rated his performance as “Unsatisfactory” overall and in several specified areas, including those relating to service to the public and punctuality. (Ind. Defs. 56.1 ¶ 2; Berg Decl. Ex. 4; Morales Decl. Ex. I.)⁶ Plaintiff's evaluation for the 2014 calendar year (“2015 Evaluation”), completed by Defendant O'Brien, rated his performance as “Needs Improvement” overall. (Ind. Defs.' 56.1 ¶ 3; Berg Decl. Ex. 5; Morales Decl. Ex. J.)⁷

5 “Pl. Resp. OCA 56.1” refers to Plaintiff's Response to OCA's Rule 56.1 Statement, filed on September 19, 2019. (Doc. 212-1.)

6 “Ind. Defs. 56.1” refers to the Individual Defendants' Statement of Undisputed Material Facts, filed on April 29, 2019. (Doc. 196.) “Berg Decl.” refers to the Declaration of Michal A. Berg in Support of Individual Defendants' Motion for Summary Judgment, filed on April 29, 2019. (Doc. 191.) Exhibit 4 to the Berg Declaration and Exhibit I to the Morales Declaration is Plaintiff's 2014 Evaluation. (Docs. 191-4, 200-9.)

7 Exhibit 5 to the Berg Declaration and Exhibit J to the Morales Declaration is Plaintiff's 2015 Evaluation. (Docs. 191-5, 200-10.)

2. Counseling, Workplace Interactions, and Time and Leave

Plaintiff was subject to numerous counseling sessions during his employment with OCA. On November 5, 2012, Defendant Accetta counseled Plaintiff concerning Plaintiff's interaction with a court user (“Citizen #1”), after Citizen #1 complained that Plaintiff “had given ‘condescending and rude responses' to her questions about a guardianship matter on October 9, 2012, and requested a ‘formal apology from Mr. Williams.'” (OCA 56.1 ¶ 29; Morales Decl. Ex. C; Ind. Defs. 56.1¶ 5; Accetta Decl. ¶ 18, Ex. 8.)⁸ On February 20, 2013, an OCA employee told Defendant O'Brien that Plaintiff had been “rude and belligerent toward her that day.” (Ind. Defs. 56.1 ¶ 6.) In a letter dated March 2, 2013, another court user (“Citizen #2”), stated that Plaintiff had been “unprofessional, unsympathetic, and uncaring” when she met with him regarding a guardianship matter. (Ind. Defs. 56.1 ¶ 7; O'Brien Decl. ¶ 11; Berg Decl. Ex. 9.)⁹ On June 5, 2013, Defendant Accetta counseled Plaintiff regarding Citizen #2's letter and issues concerning service to the public. (Ind. Defs. 56.1 ¶ 8; OCA 56.1 ¶ 31; Morales Decl. Ex. E.) On January 24, 2014, Plaintiff attended a counseling session with Defendants Accetta and Loehr regarding an interaction with a court user (“Citizen #3”), who had complained regarding her interaction with Plaintiff. (Ind. Defs. 56.1 ¶ 13; Morales Decl. Ex. F.) During that counseling session, when Defendant Loehr stated that she was trying to help him, Plaintiff responded “that's a lie.” (Pl. Resp. Ind. Def. 56.1 ¶ 14.)¹⁰ Loehr than asked Plaintiff if he was calling her a liar, and then she left the counseling session prior to its conclusion. (Pl. Decl. ¶ 92; Loehr Decl. ¶ 27.)¹¹

8 “Accetta Decl.” refers to the Declaration of Joseph M. Accetta in Support of Individual Defendants' Motion for Summary Judgment, filed on April 29, 2019. (Doc. 192.)

9 “O'Brien Decl.” refers to the Declaration of Johanna O'Brien in Support of Individual Defendants' Motion for Summary Judgment, filed on April 29, 2019. (Doc. 193.)

10 “Pl. Resp. Ind. Def. 56.1.” refers to Plaintiff's Response to the Individual Defendants' Rule 56.1 Statement, filed on September 19, 2019. (Doc. 212-2.)

11 “Loehr Decl.” refers to the Declaration of Susa Newman Loehr Support of Individual Defendants' Motion for Summary Judgment, filed on April 29, 2019. (Doc. 194.) The parties dispute whether before Loehr left the meeting Plaintiff responded “Yes” to Loehr's question of whether he was calling her a liar. (See Loehr Decl. ¶ 27; Ind. Def. 56.1 ¶ 14; Pl. Resp. Ind. Def. 56.1 ¶ 14.) I do not find resolution of this fact necessary to resolve Defendants' motions, although I discuss this dispute more thoroughly below in the discussion section. The material undisputed fact is that Plaintiff responded, “that's a lie, ” to Loehr, Loehr asked if Plaintiff was calling her a liar, and Loehr subsequently left the counseling session. (Pl. Decl. ¶ 92; Loehr Decl. ¶ 27.) I find that Plaintiff's undisputed statement “that's a lie” insinuates that Loehr is a liar.

In a memorandum dated December 17, 2012, Accetta counseled Plaintiff regarding the information he needed to submit in order to be approved for sick leave. (OCA 56.1 ¶ 30; Pl. Resp. OCA 56.1.) Sometime in 2013, Defendant Accetta contacted Plaintiff at home to “inquire about his whereabouts.” (Id. ¶ 25.) Around September 25, 2014, Defendant O'Brien denied Plaintiff's request for leave to attend an interview, and Plaintiff thereafter filed a grievance. (Id. ¶ 27.) Defendant Accetta also informally counseled Plaintiff about his tardiness in July 2014. (Accetta Decl. ¶ 14.)

3. Disciplinary Proceedings

On February 15, 2011, Plaintiff was arrested and charged with multiple criminal offenses. (OCA 56.1 ¶ 46; Morales Decl. Ex. P.) Judge Coccoma and the Judge Scheinkman were notified of the arrest, and Judge Scheinkman suggested that the Office of the Inspector General investigate the matter. (OCA 56.1 ¶¶ 47-48; Pl. Resp. OCA 56.1 ¶¶ 47-48.) After the investigation, Judge Coccoma charged Plaintiff with the following acts of misconduct: (i) on February 15, 2011, while seated in his motor vehicle, Plaintiff screamed three times at New York City police officers engaged in an investigation of another motorist that they were wasting their time and he had to go; (ii) Plaintiff asked how many officers it took to examine paperwork, and exited his motor vehicle, approached the police officers, and addressed a person on his phone to come quickly; (iii) as a result of this conduct, the police officers were unable to continue conducting their investigation of the other motorist; (iv) Plaintiff refused to show his personal identification to the police officers; and, unrelated to the February 15, 2011 incident, (v) Plaintiff reported to work late “on 65 occasions” between August 5, 2010 and February 12, 2021.¹²(Murphy Decl. Ex. D; OCA 56.1 ¶ 51; Pl. Resp. OCA 56.1 ¶ 51.)¹³ A disciplinary hearing was held, and a report and recommendation was issued that sustained portions of four of the five charges, found Plaintiff's conduct unbecoming a peace officer, and recommended a penalty of a $100 and letter of reprimand. (OCA 56.1 ¶ 53; Murphy Decl. Ex. E at 6-7.) On July 1, 2013, Judge Coccoma adopted the report's findings but added an additional penalty of a 10-day suspension without pay (“July 2013 Discipline”). (OCA 56.1 ¶ 54; Murphy Decl. Exs. F, G.) Judge Coccoma also added a letter of reprimand to Plaintiff's personnel file which recounted the misconduct, and noted that “during an eighteen month period, [Plaintiff] abused [his] time and leave privileges by being late . . . on an excessive No. of occasions.” (OCA 56.1 ¶ 54; Murphy Decl. Ex. G.)

12 These charges were subsequently dismissed. (Pl. Decl. Ex. P-18.)

13 “Murphy Decl.” refers to the Declaration of Scott Murphy in Support of OCA's Motion for Summary Judgment, filed on June 6, 2019. (Doc. 201.)

Plaintiff's next instance of discipline arose after the counseling session on January 24, 2014, described above. After the session, Defendant Loehr drafted a memorandum summarizing the session in which she expressed the following thoughts about Plaintiff:

I am requesting that further action be taken to secure the safety and well-being of all in this courthouse. At the very least, I recommend that he undergo a psychological evaluation, pursuant to section 9.3(i)(1) of the negotiated agreement, and suggest that he receive a mandatory referral to Work Life Assistance. I would also recommend that further disciplinary action be considered.

(Loehr Decl. ¶¶ 28-30; Berg Decl. Ex. 22.) This memorandum was submitted to Judge cheinkman. (Loehr Decl. ¶ 28.)

On February 10, 2014, Judge Scheinkman requested that Judge Coccoma commence disciplinary proceedings against Plaintiff for his conduct during the counseling session. (OCA 56.1 ¶ 55; Ind. Defs. 56.1 ¶ 15.) By written notice dated April 30, 2014, Judge Coccoma charged Plaintiff with the following acts of misconduct: on January 24, 2014, (i) Plaintiff resisted the supervision of his managers to counsel him concerning a workplace incident involving Plaintiff; and (ii) Plaintiff was uncooperative, rude, and disrespectful to Susan Loehr and called Loehr a liar. (OCA 56.1 ¶ 56; Murphy Decl. Ex. I.)¹⁴ An evidentiary hearing was held before Hearing Officer Michael Langan. (OCA 56.1 ¶ 57.) Both Defendants Accetta and Loehr testified as fact witnesses concerning the counseling session, but did not testify to the merits of the charges against Plaintiff. (Accetta Decl. ¶ 36; Loehr Decl. ¶ 33.) On May 5, 2015, after a report and recommendation issued, Judge Coccoma adopted the report's findings that sustained both charges of misconduct, and directed that (1) a letter of reprimand be placed in Plaintiff's personnel file; (2) Plaintiff be suspended for ten days without pay; (3) Plaintiff be placed on probation for one year; and (4) Plaintiff attend a mandatory evaluative corporate counseling session (“May 2015 Discipline”). (OCA 56.1 ¶¶ 58-59; Ind. Defs. 56.1 ¶ 18; Murphy Decl. Ex. K.)

14 Although the written notice refers to Susan Loehr as Susan Newman, for consistency's sake, I will refer to her by the name Loehr throughout my Opinion.

Defendants Accetta and Loehr did not communicate with Judge Coccoma or any other OCA judge or official about whether the charges against Plaintiff should be sustained, or what penalties, if any, should be imposed.¹⁵ (Accetta Decl. ¶ 35; Loehr Decl. ¶ 32.)

15 Plaintiff disputes this fact, however, his arguments go to the legal question of Defendants Accetta's and Loehr's personal involvement in the May 2015 Discipline, and his citations do not provide evidence that Accetta or Loehr communicated to any OCA judge or official about whether the charges should be sustained or what penalties should be imposed. Defendant Loehr's memorandum to Judge Scheinkman only “request[ed] that further action be taken” and that “further disciplinary action be considered.” (See Berg Decl. Ex. 22.)

4. Termination of Plaintiff's Employment

Around April 30, 2015, Annunziata distributed a document titled “Westchester County Surrogate's Court Standard Operating Procedure for Time & Leave” (“Call-In Policy”). (Ind. Defs. 56.1 ¶ 23.) The Call-In Policy required that employees report any unscheduled absence by speaking with a supervisor, prohibited reporting absence by voicemail or email, and that if an employee was going to be late, they call and speak to their supervisor regarding what time they expected to arrive and the reason for their lateness. (Id. ¶ 24; OCA 56.1 ¶ 61; Annunizata Decl. Ex. A.)¹⁶

16 “Annunizata Decl.” refers to the Declaration of Mark Annunziata in Support of OCA's Motion for Summary Judgment, filed on June 6, 2019. (Doc. 202.)

On June 2, 2015, Annunziata held a counseling session with Plaintiff to discuss Plaintiff's work performance. (OCA 56.1 ¶ 63.) At the meeting, Annunizata advised Plaintiff that between April 7 and June 2, he reported late to work on 10 occasions and that this pattern of lateness was unacceptable and disruptive to court operations; provided Plaintiff with the Call-In Policy; and advised Plaintiff that as a probationary employee, any infraction would result in the termination of his employment. (Id.)

On June 9, 2015, Plaintiff reported his absence from work by leaving a voicemail for Defendant O'Brien. (Ind. Defs. 56.1 ¶ 26.) Maria Barrington, the then-Chief of Staff emailed Judge Scheinkman to report Plaintiff's failure to follow the Call-In Policy, advised Judge Scheinkman that Plaintiff had been advised at a formal counseling meeting of the Call-In Policy and that, given his probationary status, his employment could be terminated for not complying with the Call-In Policy. (Murphy Decl. ¶ 24, Ex. M.) She advised Judge Scheinkman that she was going to place the matter before Judge Coccoma for his determination, and ask for his input. (Id.) Judge Scheinkman recommended that Plaintiff's employment be terminated, (id.; Ind. Defs. 56.1 ¶ 27; OCA 56.1 ¶ 66), and Judge Coccoma concurred and terminated Plaintiff's employment on June 9, 2015 for violating the terms of his probation by not following the Call-In Policy (“June 2015 Termination”), (OCA 56.1 ¶ 67; Ind. Defs. 56.1 ¶ 28; Murphy Decl. Ex. M). Defendant Accetta, who was no longer employed at OCA at the time Plaintiff's employment was terminated, had no advance knowledge of and no involvement in the decision to terminate Plaintiff's employment. (Accetta Decl. ¶¶ 39-40). Likewise, Defendant Loehr had no advance knowledge of and no involvement in the decision to terminate Plaintiff's employment. (Loehr Decl. ¶¶ 34-35.)

C. Discrimination Complaints and Allegations¹⁷

17 Plaintiff describes many allegations of discrimination and complaints he lodged both within his Second Amended Complaint and declaration. I recite Plaintiff's allegations here, but make no findings as to their veracity.

In 2009, Plaintiff and other members of the Tribune Society asserted a discrimination complaint against Defendant O'Brien and Charlie Scott, the then Chief Clerk (“2009 Tribune Society Complaint”). (Pl. Decl. ¶¶ 14, 37-39; see Pl. Decl. Ex. P-10.) In 2009, Plaintiff filed a discrimination complaint in the form of a non-contractual grievance, which was subsequently dismissed. (Pl. Decl. ¶ 43, Ex. P-11.) Plaintiff's additional complaints took the form of responses to his performance evaluations issued in 2012, 2013, 2014, and 2015. (OCA 56.1 ¶ 20; see Pl. Decl. Ex. P-13; Morales Decl. Ex. H; Berg Decl. Exs. 4, 5.) Plaintiff filed an administrative complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”), stamped received by the EEOC on November 12, 2015, alleging that during the period of February 2013 through June 2015, OCA discriminated against him based on race, retaliated against him, and subjected him to a hostile work environment. (OCA 56.1 ¶ 81; Morales Decl. Ex. T.)

In this action, Plaintiff alleges that “Defendants . . . engaged in a continuous policy and practice of treating non-Caucasian employees . . ., including [him] in a disparate manner, based on their race.” (SAC ¶ 25.) Plaintiff alleges that OCA employees challenged his authority, ignored his directives, gave him a heavier workload than Caucasian employees, and subjected him to a more stringent performance standard. (See generally SAC; Pl. Decl.) Plaintiff cites to numerous examples within both his Second Amended Complaint and declaration, many of which relate to Plaintiff's work history described above. In particular, Plaintiff alleges that Defendants Accetta and O'Brien “retaliated against [him], for his complaints regarding the misconduct of his Caucasian subordinates, by among other things subjecting his performance to punitive scrutiny and criticism” and “repeatedly tr[ied] to take disciplinary action against [him] based on the bogus complaints lodged by his subordinates.” (SAC ¶¶ 48-49.) He states that Defendant Accetta called him at his home and falsely accused him of being absent without leave, and Defendant O'Brien denied Plaintiffs request to attend an in-house interview for a promotional position, when she routinely granted such requests when made by Caucasian employees. (Id. ¶¶ 59-60.) He also alleges that Defendants imposed severe discipline on him, including suspending him and putting him on probation, while they ignored the misconduct of Caucasian employees. (Id. ¶¶ 65-84.) He cites to the numerous counseling sessions he was subjected to as evidence of discrimination. (See, e.g., Pl. Decl. ¶ 71.)

II. Procedural History

Plaintiff filed an administrative complaint with the EEOC, stamped received by the EEOC on November 12, 2015. (OCA 56.1 ¶ 81; Morales Decl. Ex. T.) By notice dated December 22, 2015, the EEOC issued Plaintiff a right to sue, and advised Plaintiff that it was closing its file on his charge because the EEOC was “unable to conclude that the information obtained establishes violations of the statutes.” (Morales Decl. Ex. U.) Plaintiff initiated this action by filing a complaint against OCA and the Individual Defendants on March 21, 2016. (Doc. 1.) On May 3, 2016, Plaintiff filed his first amended complaint. (Doc. 5.) On December 12, 2016, I granted Plaintiff leave to file a second amended complaint, (Doc. 32), and on December 13, 2016, Plaintiff filed his Second Amended Complaint which included four counts, (SAC, Doc. 33.) Subsequently, the Individual Defendants moved to dismiss the Second Amended Complaint. (Doc. 40.) OCA filed an answer to the Second Amended Complaint on January 13, 2017. (Doc. 45.)

On September 30, 2017, I issued a Memorandum & Order granting the Individual Defendants' motion in part (“Memorandum & Order”). (MTD M&O.)¹⁸ In the Memorandum & Order I: (1) dismissed Plaintiff's claim against the Individual Defendants for deprivations of equal protection and the right to make and enforce contracts on the basis of race, in violation of 42 U.S.C. § 1981 and § 1983; (2) dismissed Plaintiff's discrimination and retaliation under claims § 1983 and the NYSHRL against the Individual Defendants based on Plaintiff's July 2013 suspension; (3) dismissed Plaintiff's discrimination and retaliation under claims under § 1983 and the NYSHRL against Defendant O'Brien based on the May 2015 Discipline; (4) dismissed Plaintiff's discrimination and retaliation claims under § 1983 and the NYSHRL against Defendant O'Brien based on the June 2015 Termination; (5) dismissed Plaintiff's retaliation claims under § 1983 and the NYSHRL against Defendant Loehr; and (6) dismissed Plaintiff's sex discrimination claims under the NYSHRL against the Individual Defendants.¹⁹ (MTD M&O 24.)

18 “M&O” refers to my Memorandum & Order on the Individual Defendants' Motion to Dismiss, dated September 30, 2017. (Doc. 51.)

19 In short, I dismissed parts of the three counts remaining before me.

On October 16, 2017, the Individual Defendants filed answers to the Second Amended Complaint. (Docs. 52-54.) I subsequently referred the case to Magistrate Judge Robert Lehrburger for general pretrial, so that he could address the many discovery issues being raised by the parties. (Doc. 57.) Plaintiff then moved twice to vacate Magistrate Judge Lehrburger's discovery rulings, and I denied both motions. (Docs. 117, 166.)²⁰

20 I do not rehash the numerous discovery disputes here.

On April 29, 2019, the Individual Defendants moved for summary judgment, (see Docs. 190-96), and on June 6, 2019, OCA moved for summary judgment, (see Docs. 199-205).²¹ I granted Plaintiff leave to file excess pages in a combined opposition brief to Defendants' motions for summary judgment. (Doc. 198.) After granting Plaintiff two extensions, Plaintiff filed his papers in opposition to Defendants' motions for summary judgment on September 19, 2019. (See Docs. 206-14.) On September 23, 2019, Plaintiff filed a letter requesting that certain exhibits and Plaintiff's memorandum of law in opposition be deemed timely although they were filed after midnight on September 19, 2019, and requesting that Plaintiff be permitted to file a replacement memorandum of law to correct two typographical errors. (Doc. 215.)²² After granting Defendants' an extension, (Doc. 219), Defendants filed their replies in support of their motions for summary judgment on December 13, 2019, (Docs. 220-22.) Plaintiff subsequently requested to submit a sur-reply to address new arguments raised by Defendants for the first time, and to submit a sur-reply declaration containing pages of an exhibit that were inadvertently omitted in the initial filing. (Doc. 223.) Plaintiff also requested a conference on a proposed motion to strike if his request was denied. (Id.) Defendants opposed this request, (Docs. 224- 25), and Plaintiff submitted replies in support of his request, (Docs. 226-27.) Thereafter, I denied Plaintiff's request for a sur-reply, stating that Defendants' motion for summary judgment was considered fully briefed, denied Plaintiff's request for a pre-motion conference, and granted Plaintiff leave to file the additional exhibit pages that had been omitted. (Doc. 228.) Plaintiff then submitted the omitted exhibit pages. (Doc. 229.)

21 OCA initially attempted to move for summary judgment in April 2019, but was directed to re-file its motion due to a filing error. (See Docs. 183-89.)

22 In light of my ruling on Defendants' motions, Plaintiff's request to file a replacement memorandum of law to correct typographical errors is deemed moot. I accept Plaintiff's filing as timely.

III. Legal Standard

Summary judgment is appropriate when “the parties' submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see also Fed.R.Civ.P. 56(a). “[T]he dispute about a material fact is ‘genuine[]' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law, ” and “[f]actual disputes that are irrelevant or unnecessary will not be counted.” Id.

On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial, ” Id. at 256, and to present such evidence that would allow a jury to find in his favor, see Graham v. Long Island RR, 230 F.3d 34, 38 (2d Cir. 2000). To defeat a summary judgment motion, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In considering a summary judgment motion, a court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (citation and internal quotation marks omitted); see also Matsushita, 475 U.S. at 587. “[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party, ” summary judgment must be denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). “‘The principles governing admissibility of evidence do not change on a motion for summary judgment' and district courts need only consider admissible evidence in ruling on a motion for summary judgment.'” I.M. v. United States, 362 F.Supp.3d 161, 174 n.9 (S.D.N.Y. 2019) (quoting Raskin v. Wyatt Company, 125 F.3d 55, 66 (2d Cir. 1997)).

In the event that “a party fails . . . to properly address another party's assertion of fact as required by Rule 56(c), the court may, ” among other things, “consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials- including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(2), (3); see also Fed.R.Civ.P. 56(c)(1)(a) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.”); Local Rule 56.1(d) (“Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c).”). However, “where the movant ‘fail[s] to fulfill its initial burden' of providing admissible evidence of the material facts entitling it to summary judgment, summary judgment must be denied, ‘even if no opposing evidentiary matter is presented,' for the non-movant is not required to rebut an insufficient showing.” Giannullo v. City of N.Y., 322 F.3d 139, 140-41 (2d Cir. 2003) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970)). “Moreover, in determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

Courts must exercise “an extra measure of caution” in determining whether to grant summary judgment in employment discrimination cases “because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (internal quotation marks omitted). Nevertheless, “a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). The ultimate inquiry is “whether the evidence can reasonably support a verdict in plaintiffs favor.” James v. NY Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).

IV. Discussion

A. Retaliation and Discrimination Claims

In Counts I, III, and IV, Plaintiff brings retaliation and discrimination claims against Defendants under Title VII, § 1983, and the NYSHRL.²³

23 As I previously noted, Count I of the Second Amended Complaint asserts that “Defendant OCA . . . retaliated against Williams for complaining of Defendant's discriminatory conduct.” (MTD M&O 14-15 n.8.) In resolving the motion to dismiss, however, I addressed the merits of Plaintiff s argument that the Individual Defendants retaliated against him, and I will do the same here. Additionally, the Individual Defendants do not seem to dispute that Plaintiff is bringing a claim against them for retaliation. (See generally Doc. 195, Ind. Defs.' Mem.) (addressing retaliation claim).

1. Timeliness of Claims

a. Applicable Law

Title VII “require[s] claimants to file a charge of discrimination or retaliation with the United States Equal Employment Opportunity Commission (‘EEOC') within 300 days of the discriminatory or retaliatory act.” Valtchev v. City of NY, 400 Fed.Appx. 586, 588 (2d Cir. 2010); see 42 U.S.C. § 2000e-5(e)(1). “Termination, failure to promote, and refusal to hire are considered discrete acts which are easy to identify and claims based on each are barred if not timely filed.” Id. (internal quotation marks omitted).

Discrimination and retaliation under § 1983 and the NYSHRL are subject to a three-year statute of limitations. Delaney v. Farley, 623 Fed.Appx. 14, 16 (2d Cir. 2015); see Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (applying three-year statute of limitations to § 1983 claims brought in New York); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (applying three-year statute of limitations to NYSHRL claims). “Federal law . . . determines when a § 1983 cause of action accrues.” Rivera v. Bd. of Educ. of City Sch. Dist. of City of N.Y., No. 19 Civ. 11624 (KPF), 2020 WL 7496282, at *4 (S.D.N.Y. Dec. 21, 2020). “Accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. (internal quotation marks omitted).

b. Application

Defendants move for summary judgment on the grounds that some of Plaintiff's claims are time barred. OCA asserts that “[b]ecause plaintiff filed his complaint with the EEOC on November 12, 2015, . . . under the 300-day rule, acts occurring prior to January 16, 2015, are not actionable.” (OCA Mem. 13.)²⁴ OCA then recites seven alleged incidents upon which Plaintiff's retaliation claims are based that are outside of this 300-day timeframe. (Id.) Likewise, the Individual Defendants assert that because § 1983 and NYSHRL claims are governed by a three-year statute of limitations and because Plaintiff filed his action on March 21, 2016, his claims based on events that occurred before March 21, 2013 are time barred. (Ind. Defs.' Mem. 18.)²⁵ The Individual Defendants list nine such examples. (See Id. 18-19.)

24 “OCA Mem.” refers to OCA's memorandum of law in support of its motion for summary judgment, filed on June 6, 2019. (Doc. 205.)

25 “Ind. Defs.' Mem.” refers to the Individual Defendants' memorandum of law in support of their motion for summary judgment, filed on April 29, 2019. (Doc. 195.)

Plaintiff does not seem to deny the application of the 300-day rule to his Title VII claim or the application of the three-year statute of limitation to his § 1983 and NYSHRL claims; instead, he responds that the Individual Defendants are mistaken in their understanding that Plaintiff's claims arise from discrete acts. (Pl.'s Mem. 20.)²⁶ Williams asserts that, “[t]he conduct and treatment to which they subjected [him] were not discrete acts, their [sic] were part of a systematic pattern of discrimination and harassment covering multiple years, beginning in 2012.” (Pl.'s Mem. 20.)

26 “Pl.'s Mem.” refers to Plaintiff's memorandum of law in opposition to Defendants' motions for summary judgment, filed on September 20, 2019. (Doc. 214.)

Plaintiff appears to be invoking the continuing violation doctrine-although he does not explicitly assert that he is relying on the doctrine-which delays the commencement of the statute of limitations period “until the last discriminatory act in furtherance of it” where “a plaintiff has experienced a continuous practice and policy of discrimination.” Bermudez v. City of N.Y., 783 F.Supp.2d 560, 574 (S.D.N.Y. 2011) (internal quotation marks omitted). To qualify for this exception when bringing a discrimination claim, a plaintiff must assert that at least one of the discriminatory acts in furtherance of the alleged policy of discrimination occurred within the limitations period. Id. at 582. In National Railroad Passenger Corporation v. Morgan, cited by Plaintiff, (see Pl.'s Mem. 21), the Supreme Court clarified the applicability of the doctrine and explained that, “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify, ” and are “not actionable if time barred, even when they are related to acts alleged in timely filed charges.” 536 U.S. 101, 113-14 (2002). In these circumstances “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act, and even serial violations-a series of discrete but related acts of discrimination-do not warrant application of the continuing violations doctrine.” Bermudez, 783 F.Supp.2d at 574 (internal quotation marks omitted).

“As a general matter, the continuing violation doctrine is heavily disfavored in the Second Circuit and courts have been loath to apply it absent a showing of compelling circumstances.” Ruiz v. New Avon LLC, No. 18-CV-9033 (VSB), 2019 WL 4601847, at *15 (S.D.N.Y. Sept. 22, 2019) (internal quotation marks omitted). The continuing violation doctrine has been considered by courts in Title VII cases and employment discrimination cases brought under § 1983 and under New York state and city law. Id.; see, e.g., Rowe v. N.Y.S. Dep't of Taxation & Fin., 786 Fed.Appx. 302, 304 (2d Cir. 2019) (Title VII context); Washington v. Cty. of Rockland, 373 F.3d 310, 318 (2d Cir. 2004) (§ 1983 context); Drew v. Plaza Const. Corp., 688 F.Supp.2d 270, 279 (S.D.N.Y. 2010) (Title VII and NYSHRL context). Courts within this Circuit have held that alleged retaliatory and discriminatory acts including verbal and written warnings, suspensions, work assignments, negative performance evaluations, disciplinary charges, and counseling are “discrete acts” insufficient to invoke the continuing violation doctrine. See, e.g., Early v. Wyeth Pharms., Inc., 603 F.Supp.2d 556, 572 (S.D.N.Y. 2009); Siddiqi v. N.Y.C. Health & Hosps. Corp., 572 F.Supp.2d 353, 366 (S.D.N.Y. 2008); Henderson v. New York, 423 F.Supp.2d 129, 141 (S.D.N.Y. 2006).

Here, the acts alleged by Plaintiff are the kind of “discrete acts” courts have found do not warrant application of the doctrine. Specifically, the following acts complained of by Plaintiff do no warrant the application of the continuing violation doctrine: (1) counseling that occurred in November and December 2012, June 2013, January 2014, and July 2014, (see SAC ¶ 50) (“Defendants and in particular O'Brien, repeatedly called Williams in for meetings regarding these bogus complaints”); (Morales Decl. Exs. C, D, E, F); (2) performance evaluations issued in February 2009, March 2013, March 2014, and March 2015, (see SAC ¶ 55) (“O'Brien used the review process to retaliate against Williams by among other things unfairly rating his performance”); (Parker Decl. Ex. P-4; Berg Decl. Exs. 3, 4, 5)²⁷; (3) the 2011 alleged improper assignment of additional work to Plaintiff, (see SAC ¶ 62) (“particularly during in or about 2011. At that time Defendants among other things, assigned Williams and Rodriguez additional duties”); (4) Defendant Accetta's 2013 phone call to Plaintiff inquiring about his whereabouts, (see SAC ¶ 59; OCA 56.1 ¶ 25; Pl. Resp. OCA 56.1 ¶ 25); (5) the September 2014 denial of leave to attend a job interview, (see SAC ¶ 60; OCA 56.1 ¶ 27; Pl. Resp. OCA 56.1 ¶ 27); (6) the September 2013 requirement that clerks match fee check with court petitions, (see Morales Decl. M at 490; OCA 56.1 ¶ 23); (7) the July 2013 Discipline, (see SAC ¶ 67); (8) the May 2015 Discipline, (see Id. ¶ 83); and (9) the June 2015 Termination, (see Id. ¶ 89).

27 O'Brien's signature on Plaintiff's 2014 Evaluation is dated “3/4/2013.” (See Berg Decl. Ex. 4.) O'Brien states that the reference to 2013 was a typographical error, (O'Brien Decl. ¶ 10), and Plaintiff does not appear to dispute the date of the evaluation. Therefore, I will consider it to have been signed on March 4, 2014.

Given that I have found that the continuing violation doctrine is inapplicable, Plaintiff's Title VII claims against OCA for retaliation and discrimination that are based on acts occurring before January 16, 2015 are time-barred. Additionally, Plaintiff's § 1983 and NYSHRL claims against the Individual Defendants for retaliation and discrimination that are based on acts occurring prior to March 21, 2013 are time-barred.

2. Discrimination Claims

Plaintiff asserts discrimination claims pursuant to Title VII against OCA and pursuant to § 1983 and NYSHRL against the Individual Defendants.

a. Applicable Law

Under Title VII, it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Courts in this Circuit analyze federal and state discrimination claims together, and apply the same standard of proof with respect to both Title VII and NYSHRL claims. See Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (analyzing Title VII and NYSHRL claims together and considering them “the same in all relevant respects” because “in other contexts [the courts] have applied federal standards of proof to discrimination claims under the state Human Rights Law.”).

Discrimination claims on the basis of race brought under Title VII, the NYSHRL, and § 1983 are analyzed under the familiar three-step burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Crawford-Bey v. N.Y. & Presbyterian Hosp., No. 08 Civ. 5454(RJS), 2011 WL 4530193, at *3 (S.D.N.Y. Sept. 30, 2011) (race discrimination claims under Title VII and the NYSHRL); Jessamy v. City of New Rochelle, N.Y., 292 F.Supp.2d 498, 515 (S.D.N.Y. 2003) (analyzing employment discrimination claim brought pursuant to § 1983 under McDonnell Douglas framework). First, the employee bears the burden of setting forth a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802. To set forth a prima facie case of discrimination, a plaintiff must show (1) he belongs to a protected class; (2) he was qualified for the position at issue; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of discrimination. Tubo v. Orange Reg'l Med. Ctr., 690 Fed.Appx. 736, 738 (2d Cir. 2017) (citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802. The Second Circuit has emphasized that the “burden of establishing a prima facie case is de minimis.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001) (collecting cases). In addition, a finding of “personal involvement of [the individual] defendants” in the alleged violation is required to impose liability under § 1983. Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (internal quotation marks omitted).

An adverse employment action is “a materially adverse change in the terms and conditions of employment.” Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). “Employment actions that [the Second Circuit has] ‘deemed sufficiently disadvantageous to constitute an adverse employment action include ‘a 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.'” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)). Courts in the Second Circuit have held that threats of disciplinary action and excessive scrutiny, without additional negative consequences, do not rise to the level of adverse employment actions. See, e.g., Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236, 248 (S.D.N.Y. 2001) (collecting cases and noting that “[w]hile plaintiff may have been reprimanded repeatedly for his lateness, nothing came of these reprimands”); see also Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006) (“[A]n employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.”).

Second, if a plaintiff successfully presents a prima facie case of discrimination, the burden shifts to the defendant to proffer “legitimate and non-discriminatory reasons for the adverse employment action.” Abdu-Brisson, 239 F.3d at 468. The defendant's burden at this stage is also “light.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). This burden “is one of production, not persuasion; it ‘can involve no credibility assessment.'” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).

Third, once a defendant proffers a legitimate, non-discriminatory reason for the adverse employment action, the burden shifts back to the plaintiff to demonstrate, by a preponderance of the evidence, that the proffered reason is a pretext for discrimination. See United States v. City of N.Y., 717 F.3d 72, 103 (2d Cir. 2013); Holcomb, 521 F.3d at 141. However, a “plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors.” Holcomb, 521 F.3d at 138 (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)); see also Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 156 (2d Cir. 2010) (“[A] plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus.”).

In other words, to defeat summary judgment, “the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.” Stern v. Trs. of Columbia Univ. in the City of N.Y., 131 F.3d 305, 312 (2d Cir. 1997). “To get to the jury, it is not enough to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (internal quotation marks omitted), cert. denied, 540 U.S. 811 (2003); see also Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000) (affirming summary judgment in favor of defendant where plaintiff failed to present evidence upon which a reasonable jury could conclude that age was a “determinative factor” in adverse employment action). “Though the plaintiff's ultimate burden may be carried by the presentation of additional evidence showing that ‘the employer's proffered explanation is unworthy of credence,' it may often be carried by reliance on the evidence comprising the prima facie case, without more.” Cronin, 46 F.3d at 203 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

b. Application

Defendants do not seem to dispute that Plaintiff has met the first two prongs required to establish a prima facie case of discrimination. Defendants, however, challenge Plaintiff's showing regarding the third prong and fourth prong-adverse employment action and inference of discrimination, respectively.

i. Adverse Employment Actions

Given my determination on the timeliness of Plaintiff's claims, as to OCA, I only consider Plaintiff's discrimination claims based on acts that occurred after January 16, 2015. Regarding the Individual Defendants, I only consider acts occurring after March 21, 2013.²⁸

28 For purposes of conciseness and given the overlap between Plaintiff's claims against OCA and the Individual Defendants, I will analyze the allegedly adverse actions together.

Plaintiff's alleged acts of discrimination are: (1) the 2014 and 2015 Evaluations; (2) Defendant Accetta's 2013 phone call to Plaintiff inquiring about his whereabouts; (3) the September 2014 denial of leave to attend a job interview; (4) general allegations regarding sick and annual leave policies; (5) general allegations that O'Brien undermined his authority, including by requiring him to match fee petitions and checks, encouraging Caucasian subordinates to challenge his authority, and encouraging court users to file complaints against him; (6) his May 2015 discipline; and (7) the June 2015 Termination. (See generally SAC; Pl. Decl.; Pl.'s Mem.)²⁹; (see Ind. Defs.' Mem. 18-19.)

29 I note that Plaintiff recites numerous grievances, many without dates, in his Second Amended Complaint, opposition, and declaration. I do my best to succinctly summarize them here, and do not include those that appear to have occurred before March 21, 2013.

1) Performance Evaluations

Plaintiff asserts that his negative employment evaluations were discriminatory. Defendants contend that Plaintiff's negative performance evaluations are not “adverse employment actions.” (OCA Mem. 20; Ind. Defs.' Mem. 21-22.) Plaintiff's 2014 Evaluation rated his performance as “Unsatisfactory, ” and his 2015 Evaluation rated his performance as “Needs Improvement.” (Berg. Decl. Exs. 4, 5.) “An ‘unsatisfactory' performance review is not an adverse employment action where it does not affect a person's ‘compensation, benefits, or job title.'” Kunik v. N.Y.C. Dep't of Educ., 842 Fed.Appx. 668, 672 (2d Cir. 2021), as amended (Jan. 26, 2021) (internal quotation marks omitted); see Mazzeo v. Mnuchin, No. 16 CV 2747 (VB), 2017 WL 2817083, at *6 (S.D.N.Y. June 29, 2017), aff'd, 751 Fed.Appx. 13 (2d Cir. 2018) (“a negative performance review, without more, does not represent an adverse employment action.”) (internal quotation marks omitted); Kaur v. N.Y.C. Health & Hosps. Corp., 688 F.Supp.2d 317, 332 (S.D.N.Y. 2010) (“In the disparate treatment context, a negative performance evaluation only qualifies as an adverse employment action if there are accompanying adverse consequences affecting the terms of employment.”) (collecting cases). Plaintiff's 2015 Evaluation of “Needs Improvement” “did not affect Plaintiff's salary, benefits, or terms and conditions of employment, ” (Accetta Decl. ¶ 12); therefore, I find that Plaintiff's 2015 Evaluation was not an adverse action.³⁰ On the other hand, pursuant to Plaintiff's collective bargaining agreement, all court employees receiving an unsatisfactory job performance evaluation are ineligible for an annual salary raise. (See Morales Decl. ¶ 29, Ex. K.) Plaintiff therefore did not receive an annual increment in March 2014. (Id.) Based on this, I find that Plaintiff's 2014 Evaluation constitutes an adverse employment action.³¹

30 Although Plaintiff points to the fact that evaluations are kept in a personnel folder, which is used when an employee is being considered for a promotion, reassignment and/or transfer and disciplinary action, (see Pl. Decl. Ex. P-9), Plaintiff does not put forth evidence that his review of “Needs Improvement” did in fact negatively impact the terms of his employment.

31 With regard to OCA, the analysis under this prong is completed.

2) Time and Leave

Sometime in 2013, Defendant Accetta contacted Plaintiff at home to inquire about his whereabouts. (OAC 56.1 ¶ 25; Pl. Resp. OCA 56.1 ¶ 25.) Around September 25, 2014, Defendant O'Brien denied Plaintiff's request for leave to attend an interview. (Id. ¶ 27.) Plaintiff alleges that O'Brien routinely granted such requests when made by Caucasian employees. (SAC ¶ 60.) Additionally, Plaintiff states while Caucasian employees were allowed to charge lateness against sick or annual leave, but he was not permitted to do so. (Pl. Decl. ¶¶ 66-69.) I find that these allegations amount to “trivial harms” and “petty slights” that are not materially adverse. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see, e.g., Kaur, 688 F.Supp.2d at 332 (finding allegations related to time and leave and denial of vacation time did not rise to level of adverse employment action). Additionally, the record reflects that after Plaintiff filed a grievance regarding Defendant O'Brien's denial of leave, all but one hour of the time spent at the interview was restored to his annual leave accruals. (See Morales Decl. Ex. L.)

3) Challenges to Authority and Complaints

Plaintiff alleges that “O'Brien and Accetta encouraged [Caucasian employees to challenge his authority] . . . and were receptive to the numerous challenges by his subordinates to [his] authority.” (SAC ¶¶ 43-44.) Plaintiff alleges that he was forced to relinquish his authority, (id. ¶ 51), for example by being required to match fee checks with court petitions, (OCA 56.1 ¶ 22). Plaintiff also alleges that “Defendants encouraged the public, and in particular Caucasian members of the public, to lodge complaints against non-Caucasian employees, and in particular against Williams for alleged disregard of proper protocol.” (SAC ¶ 79.)

Other than Plaintiff's example of check matching, which was required of all clerks, (see Morales Decl. Ex. B), Plaintiff's allegations of challenges to authority and relinquishing authority are without evidentiary support, and are merely conclusory allegations. The requirement to match checks with court petitions does not come close to rising to the level of an adverse employment action.

Regarding the lodging of complaints, the record contains complaints from court users against Plaintiff. Plaintiff has provided deposition testimony from another employee, Robin Rodriguez, who states she heard OCA employee Marianne DiRusso advising the public that if the employee was not giving her what she wanted, she needed to file a complaint, and that DeRusso spelled out Plaintiff's name. (Pl. Decl. P-31, at 99:5-23.) Rodriguez, however, provides limited context for this alleged communication, and the portion of the transcript submitted by Plaintiff omits the details of when this occurred. Regardless, even if this complaint was in fact drafted and put in Plaintiff's personnel folder, Plaintiff has provided no evidence that DiRusso encouraging an unhappy patron to file a complaint led to “a materially adverse change in the terms and conditions of employment.” Sanders, 361 F.3d at 755; see also Reddy v. Salvation Army, 591 F.Supp.2d 406, 427 (S.D.N.Y. 2008) (“[C]riticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action.”) (internal quotation marks omitted).

4) May 2015 Discipline and June 2015 Termination

Neither the Individual Defendants or OCA seem to dispute that Plaintiff's May 2015 Discipline and June 2015 Termination constitute adverse employment actions, and I find that both are adverse employment actions. See Beyer, 524 F.3d at 163 (“Employment actions that [the Second Circuit has] ‘deemed sufficiently disadvantageous to constitute an adverse employment action include a termination of employment'”) (quoting Williams, 368 F.3d at 128); Witek v. City of N.Y., 807 Fed.Appx. 52, 54 (2d Cir. 2020) (observing that Plaintiff's “suspension and termination certainly constitute ‘adverse employment actions'” for discrimination claim); Hill v. Rayboy-Brauestein, 467 F.Supp.2d 336, 355-56 (S.D.N.Y. 2006).

In conclusion, in considering Plaintiff's discrimination claims, I will consider Plaintiff's 2014 Evaluation, his May 2015 Discipline, and his June 2015 Termination to be adverse employment actions.

ii. Involvement of the Individual Defendants

The Individual Defendants argue that Defendants Accetta and Loehr were not personally involved in Plaintiff's May 2015 Discipline and his June 2015 Termination. (Ind. Defs.' Mem. 14-18.) Plaintiff, however, argues that “[t]he actions of . . . Accetta put in motion the progression of discipline that led to formal charges being filed, suspensions, and finally termination. . . . They placed Williams in the progressive discipline process.” (Pl.'s Mem. At 23).³²

32 Previously, I dismissed the discrimination claims against Defendant O'Brien that arose from Plaintiff's May 2015 Discipline and his June 2015 Termination due to O'Brien's lack of personal involvement. (See MTD M&O 18-19.)

“It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Plaintiff must demonstrate that there was “personal participation by one who has knowledge of the facts that rendered the conduct illegal.” Provost, 262 F.3d at 155. Likewise, liability under the NYSHRL requires proof of “actual participation” in the alleged violation. See Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004). Personal involvement of a supervisory official can be established by showing that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.

Littlejohn v. City of N.Y., 795 F.3d 297, 314 (2d Cir. 2015) (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004)).

1) Defendant Accetta

The May 2015 Discipline arose out of a counseling session organized by Defendant Accetta regarding Plaintiff's interaction with a court user. (See Morales Decl. Ex. F; Murphy Decl. Ex. H.) Defendant Accetta testified at the disciplinary hearing about what happened during the session, but did not testify to the merits, and did not communicate with Judge Coccoma or any other OCA judge or official about whether the charges against Plaintiff should be sustained, or what penalties, if any, should be imposed. (Accetta Decl. ¶¶ 35-36.) Plaintiff alleges that Loehr's accusations, which resulted in the hearing, were false and Accetta knew they were false. (See SAC ¶¶ 81-82.)³³ Defendant Accetta's sworn affidavit recounts that while he could not remember Plaintiff's entire answer to Loehr's question of whether Plaintiff was calling her a liar, he remembers that Plaintiff clearly stated “Yes.” (Accetta Decl. ¶ 34.) Plaintiff points to the fact that Defendant Accetta's memorandum summarizing the session did not recount this exchange, (see Pl. Decl. ¶ 97; Berg Decl. Ex. 20 at 2-3); however, Plaintiff himself states that when Loehr stated she was trying to help, he responded “that's a lie, ” and Loehr accused him of calling her a liar, (Pl. Decl. ¶ 92). At a minimum, Plaintiff's statement insinuates that Loehr was a liar. Defendant Loehr's declaration states that after asking Plaintiff whether he was calling her a liar, Plaintiff replied, “Yes, you are a liar.” (Loehr Decl. ¶ 27.) Both Loehr and Accetta's declarations appear to undermine Plaintiff's allegation that Accetta lied; however, construing all ambiguities in Plaintiff's favor, given that Accetta did in fact testify at the disciplinary hearing, which ultimately resulted in Plaintiff's May 2015 Discipline, I cannot find as a matter of law that Defendant Accetta had no personal involvement in this adverse employment action.

33 I observe that it remains unclear what exactly Plaintiff is alleging the false accusation to be. Based on the Second Amended Complaint, it appears to either be the accusation that he called Loehr a liar or the accusation that Plaintiff was insubordinate to Loehr. (See SAC ¶¶ 81-82.)

Defendant Accetta's involvement in Plaintiff's June 2015 Termination is more attenuated. Although Plaintiff's termination stemmed in part from the May 2015 Discipline- Plaintiff's employment was terminated for violating the terms of his probation by not following the Call-In Policy, (OCA 56.1 ¶ 67; Ind. Defs. 56.1 ¶ 28; Murphy Decl. Ex. M)-Defendant Accetta had no direct involvement in the June 2015 Termination, (see Accetta Decl. ¶¶ 39-40). In fact, Accetta was no longer employed at OCA at the time Plaintiff's employment was terminated. (Id.) Plaintiff has also failed to establish supervisory liability. The ultimate termination of Plaintiff's employment was not an action taken by Defendant Accetta's subordinates, but rather by Judge Coccoma, over whom Defendant Accetta does not appear to have had any control, (see OCA 56.1 ¶¶ 4-5 (“The Deputy Chief Administrative Judge . . . is authorized, . . . to supervise the day-to-day operations of the trial courts, county clerk's offices and . . . to discipline employees for misconduct and incompetence”)); see, e.g., Kregler v. City of N.Y., 821 F.Supp.2d 651, 658-59 (S.D.N.Y. 2011), aff'd, 604 Fed.Appx. 44 (2d Cir. 2015) (finding no personal involvement where defendants “were subordinates and thus lacked the authority to prevent the alleged constitutional violation caused by their supervisor”), and Plaintiff points to no evidence to the contrary.³⁴ Additionally, Plaintiff's employment was not terminated simply because he was on probation; rather, his employment was terminated because he took an action that violated the terms of his probation. Therefore, any action by Defendant Accetta was not the proximate cause of Plaintiff's June 2015 Termination. See Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014) (“a plaintiff must also establish that the supervisor's actions were the proximate cause of the plaintiff's constitutional deprivation.”)

34 It is worth noting that while here the allegedly unconstitutional act was Plaintiff's firing, the May 2015 disciplinary proceeding, and not just the result, could arguably be considered the unconstitutional act.

2) Defendant Loehr

Like Defendant Accetta, Defendant Loehr testified at the hearing that resulted in the May 2015 Discipline. (Loehr Decl. ¶ 33.) Additionally, after the ill-fated counseling session, Defendant Loehr submitted a memorandum regarding Plaintiff to Administrative Judge Scheinkman which stated, in part: “I am requesting that further action be taken to secure the safety and well-being of all in this courthouse. . . . I would also recommend that further disciplinary action be considered.” (Loehr Decl. ¶¶ 28-30; Berg Decl. Ex. 22.) Given Loehr's testimony and her memorandum which recommended considering disciplinary action, I cannot find that as a matter of law Defendant Loehr had no personal involvement in the May 2015 Discipline.

Like Defendant Accetta, however, I find that Defendant Loehr had no direct or supervisory involvement in the June 2015 Termination. Loehr had no advance knowledge of or involvement in the decision to terminate Plaintiff's employment. (See Loehr Decl. ¶¶ 34-35.)

In conclusion, I dismiss the discrimination claims against Defendants Accetta and Loehr stemming from Plaintiff's June 2015 Termination.³⁵

35 The Individual Defendants cite to Schallop v. N.Y.S. Dep't of Law, 20 F.Supp.2d 384, 392-93 (N.D.N.Y. 1998), for the proposition that courts have held that a defendant who learned of an alleged adverse action after the fact cannot be charged with personal involvement. In Schallop, the court held that although the plaintiff had established that the defendant engaged in discussions leading to the decision to terminate plaintiff's employment, plaintiff failed to establish “what [was] necessary to establish [defendant's] liability under section 1983-his personal involvement in the actual decision to terminate [plaintiff's] employment.” Id. at 392. Additionally, the court explained that another defendant's testimony, which indicated that “she was being informed of a decision that had been made without her involvement, ” was insufficient to meet the standard. Id. at 393. Schallop further supports my finding that Plaintiff has failed to demonstrate Accetta's and Loehr's personal involvement in the June 2015 Termination. The Individual Defendants' arguments regarding the May 2015 Discipline are less persuasive. Unlike in Whiting v. Incorporated Village of Old Brookville, 79 F.Supp.2d 133, 136 (E.D.N.Y. 1999), cited by the Individual Defendants, Plaintiff does in fact allege that Defendants Accetta and Loehr “engaged in some wrongdoing which contributed to the Plaintiff's disc[ipline].” Cf. Maldonado v. Candidus, No. 97 CIV. 4794 SHS RLE, 1999 WL 13736, at *2 (S.D.N.Y. Jan. 12, 1999) (no personal involvement where plaintiff alleged that defendant gave false testimony but defendant only “read unit log book entries . . . regarding the search of [defendant's] cell.”) (internal quotation marks omitted); Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986) (no personal involvement where defendant filed an inmate misbehavior report but was not present at the disciplinary hearing and did not testify).

iii. Inference of Discrimination

Plaintiff asserts that discrimination can be inferred based on Defendants' treatment of his Caucasian counterparts, (see SAC ¶¶ 92-93), and identifies eight employees specifically: Ed McGuckin, John Curtin, Elizabeth Thomas, Darlene Burbridge, Maryann Giobbe, Amy Carvelli, Richard Hart, and Marlene DiRusso (collectively, “Comparators”). (SAC ¶¶ 71, 92; Pl. Decl. ¶ 23.) He alleges that many of these employees routinely violated time and attendance rules, that Giobbe was arrested but no disciplinary action was ever taken against her, and that some of these employees were rude and disrespectful to court users and to other employees. (SAC ¶¶ 71, 92; Pl. Decl. ¶¶ 23-24, 57, 59, 61, 66-69.) Defendants argue that these employees are not similarly situated to Plaintiff. (OCA Mem. 16-17; Ind. Defs.' Reply 7.)³⁶

36 “Ind. Defs.' Reply” refers to the Individual Defendants' reply memorandum of law in support of their motion for summary judgment, filed on December 13, 2014. (Doc. 220.)

“A showing that the employer treated a similarly situated employee differently is ‘a common and especially effective method' of establishing a prima facie case of discrimination.” McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (quoting Abdu-Brisson, 239 F.3d at 468). An employee need not show “disparate treatment of an identically situated employee”; rather, the employee must be “similarly situated in all material respects.” Id. at 54 (emphasis omitted); see Graham, 230 F.3d at 39. I will now consider each adverse employment action as it relates to the Comparators identified by Plaintiff.³⁷

37 Plaintiff asserts that Giobbe was arrested, but was not subject to disciplinary action akin to what he was subjected to in 2013. (SAC ¶ 71.) Discrimination claims against OCA arising from the 2013 Discipline are barred by the statute of limitations. (Supra Section IV.I.b.) Additionally, I dismissed Plaintiff's discrimination claims against the Individual Defendants arising from the 2013 Discipline. (See MTD M&O 19.) Therefore, I do not consider this issue here.

1) 2014 Evaluation

Plaintiff's 2014 Evaluation rated his performance as “Unsatisfactory” overall and in several specified areas, including those relating to service to the public and punctuality. (Ind. Defs. 56.1 ¶ 2.) The 2014 Evaluation was based on several considerations, including that Plaintiff (1) served a 10-day suspension in 2013; (2) was formally counseled as a result of a written complaint by a court user; and (3) had a complaint lodged against him by another court employee for his behavior towards her. (O'Brien Decl. ¶ 11.)

Plaintiff provides some support for his allegation that other employees “curs[ed] out court users.” (Pl. Decl. ¶¶ 24-25.) In particular, he submits the transcript of Robin Rodriguez, who states that DiRusso would direct profanity at court users. (See Pl. Decl. Ex. P-31, at 194.) However, based on the record before me, even assuming that employees DiRusso, Carvelli, McGuckin, and Hart were rude to court users, these employees are not “similarly situated in all material respects” to Plaintiff. McGuckin, unlike Plaintiff, has never been disciplined by OCA for misconduct. (Morales Decl. ¶ 39.) And Plaintiff presented no evidence that DiRusso, Carvelli, or Hart had been subject to discipline similar to Plaintiff's-a 10-day suspension without pay-which was in part the basis for Plaintiff's 2014 Evaluation. In fact, in an exhibit submitted by Plaintiff, which lists OCA employees that have been disciplined for misconduct, none of the eight employees named by Plaintiff appear. (See Parker Decl. Ex. 36.)

In Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997), the Second Circuit affirmed the district court's holding that an employee failed to make a prima facie case of sex discrimination based on her termination for violating a “no fraternization rule.” The Second Circuit explained that the employee did “not allege that any other employees she claims violated the ‘no fraternization' rule engaged in the same misconduct as she.” Id. For example, the employee did “not present any evidence that any of the other alleged offending employees dated an hourly employee for over two years, were warned by a manager that such conduct violated Company policy, harassed that hourly employee when the relationship soured, had a complaint regarding his conduct brought against him and then lied about the misconduct when confronted.” Id. Plaintiff has similarly failed here. His misconduct includes a 10-day suspension without pay, a written complaint from a court user, and a complaint from a fellow employee. Other than bald assertions with limited support that the Comparators were rude to court users, Plaintiff failed to show that they “engaged in comparable conduct.” Id. Plaintiff has failed to raise an inference of discrimination based on the 2014 Evaluation.

2) May 2015 Discipline

Plaintiff's May 2015 Discipline arose from Judge Coccoma's findings that Plaintiff resisted the supervision of his managers, and that Plaintiff was uncooperative, rude, and disrespectful to Loehr and called Loehr a liar. (OCA 56.1 ¶ 56; Murphy Decl. Ex. I.) Plaintiff asserts that he has “seen and heard Caucasian employees . . . curse out Accetta and O'Brien in front of [him] and other employees, and no action was taken against them.” (Pl. Decl. ¶ 94.) Although Plaintiff has submitted 36 different exhibits, Plaintiff fails to sufficiently support this assertion. Robin Rodriguez testified that at times DiRusso would direct profanity at her co-workers “under her breath, ” (see Pl. Decl. Ex. P-31, at 194); however, this is a far cry from Plaintiff's assertion that employees “curse[d] out Accetta and O'Brien, ” (see Pl. Decl. ¶ 94.) Such conclusory allegations are insufficient to raise a triable issue of fact. See Batista v. Waldorf Astoria, No. 13 Civ. 3226(LGS), 2015 WL 4402590, at *4 (S.D.N.Y. July 20, 2015) (“To satisfy Rule 56(e), affidavits must be based upon concrete particulars, not conclusory allegations. To the extent that these affidavits contain bald assertions and legal conclusions-for example, that a co-worker was always making racial slurs about minorities, and that the plaintiff was working in a hostile or abusive working environment-the district court can properly refuse to rely on them.”) (internal quotation marks omitted).

Notably, within their declarations, neither O'Brien or Accetta mention other employees treating them rudely, (see generally O'Brien Decl.; Accetta Decl.), and Plaintiff has not identified testimony indicating that O'Brien or Accetta were the subject of abuse by other employees. Plaintiff himself acknowledged that he is unaware of DiRusso, Carvelli, McGuckin, or Hart ever showing disrespect to any supervisors in a counseling session. (Morales Ex. M, at 398-99.) He is also unaware of any other OCA employee calling another employee who was counseling them a liar. (Id. at 140.) Given that there is no evidence that the Comparators identified by Plaintiff engaged in the sort of misconduct that resulted in Plaintiff's May 2015 Discipline, the employees are not similarly situated, and I find no inference of discrimination.³⁸

38 Plaintiff points out that the May 2015 Discipline, which put him on probation for one year, violated the terms of his collective bargaining agreement. (See Pl. Mem. 17-18.) Defendants' violation of the collective bargaining agreement, however, does not change my determination. Plaintiff has not offered evidence showing that Caucasian employees who engaged in actions similar to those taken by Plaintiff were subject to lesser terms of probation, and I do not find that the violation of the collective bargaining agreement itself raises an inference of discrimination. Additionally, I note that most of the Comparators identified by Plaintiff did not hold the title of Senior Surrogate's Court Clerk, and Plaintiff does not identify facts that would warrant a finding that they occupied materially similar positions to Plaintiff. (See Morales Decl. ¶¶ 33-38) (Giobbe held the title of Law Stenographer and then Senior Court Office Assistant) (Carvelli held the title of Court Clerk Specialist until 2015 when she was appointed to the Associate Law Clerk to Judge title) (McGuckin held the Associate Surrogate's Court Clerk title) (Thomas held the Court Assistant title) (Curtin held the Associate Surrogate's Court Clerk title).

3) June 2015 Termination

Plaintiff's employment was terminated for violating the terms of his probation by not following the Call-In Policy. (OCA 56.1 ¶ 67; Ind. Defs. ¶ 28; Murphy Decl. Ex. M.) Although Plaintiff points to numerous employees who were late or did not follow the Call-In Policy, this argument misses the mark-Plaintiff's employment was terminated because he violated the terms of his probation. Plaintiff himself declares that, if he “had not been on probation, [he] do[es] not believe” that his employment could have been terminated for failing to follow the call-in procedure. (Pl. Decl. ¶ 102.) Plaintiff does not provide evidence that any of the Comparators he identified were also on probation, and the declaration of Pedro Morales, Assistant Deputy Counsel for OCA states that McGuckin, Thomas, and Curtin have never been disciplined for misconduct. (Morales Decl. ¶ 39.) The exhibit submitted by Plaintiff, which lists OCA employees that have been disciplined for misconduct, suggests that none of the eight employees named by Plaintiff have been disciplined. (See Parker Decl. Ex. 36.) Therefore, it is unlikely that any of them served a period of probation.

To come close to meeting the required standard, Plaintiff would, for example, need to show that a fellow employee of a different race was also serving a term of probation and violated that term of probation, but was not fired.³⁹ Plaintiff has failed to do so. For the foregoing reasons, Plaintiff has failed to demonstrate an inference of discrimination, and has therefore failed to make out a prima facie case of discrimination against OCA or the Individual Defendants.⁴⁰

39 I do not make any finding on whether this would be sufficient to show an inference of discrimination, but rather use this example to illustrate why Plaintiff fails here.

40 Plaintiff submits portions of the deposition of Alfonso Rodriguez, a former OCA employee, who testified that he remembered Defendant O'Brien mimicking the speech pattern and behavior of an African American OCA employee. (See Pl. Decl. Ex. P-30, at 227:1-23.) This statement, however, is not probative. The employee mentioned was not Plaintiff, and there is no indication of when this statement was made or how, if at all, it related to any adverse employment decision. See Smith v. N.Y. & Presbyterian Hosp., 440 F.Supp.3d 303, 337-38 (S.D.N.Y. 2020) (finding “stray remark” non-probative where there was no admissible evidence regarding when the statement was made, and employee presented no evidence that tied the statement to an employment decision). Additionally, Plaintiff argues that OCA is liable under the “cat's paw theory of liability.” (Pl.'s Mem. 21.) Under this theory, an employer can be held liable for decisions which, though made by a non-biased decision-maker, negligently relied on the accusations or determinations of a biased decision-maker. Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 271-72 (2d Cir. 2016). Plaintiff, however, has not established any bias-motived acts by any of his supervisors; therefore, the theory is inapplicable. See Wright v. City of Syracuse, 611 Fed.Appx. 8, 11 n.2 (2d Cir. 2015) (finding “cat's paw” theory of liability failed where Plaintiff “fail[ed] to adduce evidence of any act by his supervisors that was motivated by discriminatory animus, with the specific intent to cause his termination, and was the proximate cause of his termination.”).

3. Retaliation Claims

Plaintiff asserts retaliation claims pursuant to Title VII, § 1983, and NYSHRL against OCA and the Individual Defendants.

a. Applicable Law

“The burden-shifting framework laid out in McDonnell Douglas, 411 U.S. at 802, ” described above, “governs retaliation claims under both Title VII and the NYSHRL.” Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013). To make out a prima facie case of retaliation under this standard, a plaintiff must show that: “(1) []he engaged in a protected activity; (2) h[is] employer was aware of this activity; (3) the employer took adverse employment action against h[im]; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Id. (internal quotation marks omitted).

To establish that he engaged in protected activity, Plaintiff “need not establish that the conduct []he opposed was actually a violation of Title VII, but only that []he possessed a good faith, reasonable belief that the underlying employment practice was unlawful under that statute.” Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (internal quotation marks omitted). “Neither must the plaintiff formally oppose the alleged discriminatory behavior.” Hubbard v. Total Commc'ns, Inc., 347 Fed.Appx. 679, 681 (2d Cir. 2009). Rather, “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges” are also protected under Title VII and the NYSHRL. Id. (internal quotation marks omitted). However, “implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by [the statute].” Galdieri- Ambrosini, 136 F.3d at 292. Accordingly, a defendant cannot be charged with retaliation “if [a] plaintiff's complaints to management could not be understood to have been about race.” Lee v. Sony BMG Music Entm't, Inc., No. 07 Civ. 6733(CM), 2010 WL 743948, at *11 (S.D.N.Y. Mar. 3, 2010); see also Int'l Healthcare Exch., Inc. v. Glob. Healthcare Exch., LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y. 2007) (“[T]he complaint must put the employer on notice that discrimination is occurring.”) (internal quotation marks omitted). The reasonableness of a plaintiff's belief that the underlying employment practice was unlawful is to be evaluated from the perspective of a reasonable, similarly situated person and assessed considering the totality of the circumstances.” Brantman v. Fortistar Capital, Inc., No. 15-cv-4774 (NSR), 2017 WL 3172864, at *5 (S.D.N.Y. July 22, 2017) (internal quotation marks and citations omitted).

Regarding the third prong, “an adverse employment action is any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.'” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (quoting White, 548 U.S. at 57). This encompasses a broader range of conduct than the standard for discrimination claims, and “is not limited to discriminatory actions that affect the terms and conditions of employment.” Id.

With respect to the fourth prong, a plaintiff can establish a causal connection to support a retaliation claim “either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).

Direct evidence is “‘evidence tending to show, without resort to inference, the existence of a fact in question.'” Smith, 440 F.Supp.3d at 341(quoting Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir. 1992). This kind of evidence “‘would be an admission by the decisionmaker' that he or she made a decision by relying on an improper consideration, e.g., ‘I fired him because he was too old.'” Id. at 341-42 (quoting Tyler, 958 F.2d at 1185).

To establish a causal connection on the basis of temporal proximity, the adverse action must be “very close” in time to the protected activity. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (internal quotation marks omitted). The Second Circuit has not established a “bright line to define the outer limits beyond which a temporal relationship is too attenuated.” Summa, 708 F.3d at 128 (internal quotation marks omitted). However, the passage of about two months between the protected activity and the adverse action appears to be the approximate dividing line. Compare Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (finding discharge following less than two months after filing a complaint was sufficient evidence of a causal connection to preclude summary judgment), and Lamberson v. Six W. Retail Acquisition, Inc., 122 F.Supp.2d 502, 512 (S.D.N.Y. 2000) (finding employee fired two months after making complaints was a sufficiently close temporal proximity to infer a causal connection), with Hussein v. Hotel Emps. & Rest. Union, Local 6, 108 F.Supp.2d 360, 367 (S.D.N.Y. 2000) (“The passage of more than two months defeats any retaliatory nexus.”), vacated on other grounds, 14 F. App'x. 39 (2d Cir. 2001), and Williams v. City of N.Y., No. 11 Civ. 9679(CM), 2012 WL 3245448, at *11 (S.D.N.Y. Aug. 8, 2012) (“The passage of even two or three months is sufficient to negate any inference of causation when no other basis to infer retaliation is alleged.”); see also Breeden, 532 U.S. at 273-74 (citing with approval cases holding three and four month gaps between protected activity and adverse action to be insufficient to establish causal connection).

A decisionmaker's lack of awareness of the protected activity can also help demonstrate a lack of a causal connection. See Ragin v. E. Ramapo Cent. Sch. Dist., No. 05 Civ. 6496(PGG), 2010 WL 1326779, at *25 (S.D.N.Y. Mar. 31, 2010), aff'd, 417 Fed.Appx. 81 (2d Cir. 2011) (collecting cases); Laurin v. Pokoik, No. 02 Civ. 1938(LMM), 2005 WL 911429, at *5 (S.D.N.Y. Apr. 18, 2005) (“[Plaintiff] must demonstrate not only that [employer corporation] as an entity knew of her engagement in the protected activities, but also that the actual decisionmaker(s) knew about her protected activities as well.”); Philippeaux v. Fashion Inst. of Tech., No. 93 CIV 4438 (SAS), 1996 WL 164462, at *6 (S.D.N.Y. Apr. 9, 1996), aff'd, 104 F.3d 356 (2d Cir. 1996) (same); Murray v. Visiting Nurse Servs. of N.Y., 528 F.Supp.2d 257, 271 (S.D.N.Y. 2007) (“district courts have consistently held that, with regard to the causation prong of the prima facie standard, absent any evidence to support an inference that the decisionmakers knew of plaintiffs['] complaints, Plaintiff cannot rely on circumstantial evidence of knowledge as evidence of causation.”) (internal quotation marks omitted). “A jury, however, can find retaliation even if the agent denies direct knowledge of a plaintiff's protected activities, for example, so long as the jury finds that the circumstances evidence knowledge of the protected activities or the jury concludes that an agent is acting explicitly or implicit upon the orders of a superior who has the requisite knowledge.” Gordon, 232 F.3d at 117.

“Once a prima facie case of retaliation is established, the burden of production shifts to the employer to demonstrate that a legitimate, nondiscriminatory reason existed for its action.” Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001). If the employer demonstrates a legitimate, non-discriminatory reason, then the burden shifts back to the plaintiff to establish that the “retaliation was a ‘but-for' cause of the adverse action, not simply a ‘substantial' or ‘motivating' factor in the employer's decision.” Nieblas-Love v. N.Y.C. Hous. Auth., 165 F.Supp.3d 51, 70 (S.D.N.Y. 2016) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2526 (2013)). But-for causation does not “require proof that retaliation was the only cause of the employer's action-it is enough that the adverse action would not have occurred in the absence of the retaliatory motive.” Id. “A plaintiff may prove that retaliation was a but-for cause of an adverse employment action by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).

“[R]etaliation claims alleging an adverse action because of a complaint of discrimination are actionable under § 1983.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 80 (2d Cir. 2015). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Feingold, 366 F.3d at 159 (internal quotation marks omitted). “Once action under color of state law is established, [a plaintiff's] equal protection claim parallels his Title VII claim. The elements of one are generally the same as the elements of the other and the two must stand or fall together.” Id.; see also Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (stating that “Title VII law . . . is utilized by courts considering § 1983 Equal Protection claims” and recognizing that “several circuits have held that, when § 1983 is used as a parallel remedy with Title VII in a discrimination suit . . . the elements of the substantive cause of action are the same under both statutes.”); Vega, 801 F.3d at 91 (“the elements of a retaliation claim based on an equal protection violation under § 1983 mirror those under Title VII.”). In addition, a finding of “personal involvement of [the individual] defendants” in the alleged violation is required to impose liability under § 1983. Provost, 262 F.3d at 154 (internal quotation marks omitted).

b. Application

i. Protected Activity

Before considering the retaliation claims as they pertain to Defendants, I resolve the contours of what Plaintiff's protected activities include. Because Plaintiff does not directly state what he claims to be his protected activity-a fact that would counsel against a finding of any protected activity-I have taken a fairly generous approach when reciting what Plaintiff alleges his protected activity to be.

As alleged, Plaintiff's protected activities appear to be the 2009 Tribune Society Complaint, the 2009 Non-Contractual Grievance, and his “repeated[] complaint[s] to Accetta, O'Brien and others of the discriminatory treatment, ” (SAC ¶ 47), which seemed to take the form of responses to performance evaluations issued in 2012, 2013, 2014, and 2015 (collectively, “Plaintiff's Complaints”).

A defendant cannot be charged with retaliation “if [a] plaintiff's complaints to management could not be understood to have been about race.” Lee, 2010 WL 743948, at *11; see also Int'l Healthcare Exch., Inc., 470 F.Supp.2d at 357 (“The complaint must put the employer on notice that discrimination is occurring.”) (internal quotation marks omitted); Addo v. N.Y. Health & Hosps. Corp., No. 15-CV-8103 (RA), 2017 WL 4857593, at *7 (S.D.N.Y. Oct. 25, 2017) (“The onus is on the speaker to clarify to the employer that he is complaining of unfair treatment due to his membership in a protected class and that he is not complaining merely of unfair treatment generally.”) (internal quotation marks omitted).

Plaintiff's February 16, 2012 response to his 2012 Evaluation (“2012 Complaint”) and his March 29, 2013 response to his 2013 Evaluation (“2013 Complaint”) are not protected activity under the law. Although Plaintiff expresses numerous grievances, he does not mention any perceived discrimination because of his race. (See Pl. Decl. Ex. P-13; Morales Decl. Ex. H.) The 2012 and 2013 Complaints therefore “could not be understood to have been about race.” See Lee, 2010 WL 743948, at *11.

Plaintiff's 2009 Tribune Society Complaint and his 2009 Non-Contractual Grievance explicitly mention bias and discriminatory behavior towards certain staff. (See Pl. Decl. Exs. P-10, P-11.) The 2009 Tribune Society Complaint describes the problem as affecting African American OCA staff. (See Pl. Decl. Ex. P-10.) I consider both of these to be protected activity. Similarly, Plaintiff's April 2, 2014 response to his 2014 Evaluation (“2014 Complaint”) repeatedly states that his ratings in certain areas are “Discriminatory, Retaliatory and Bias” and describes treatment of African American OCA staff. (See Berg Decl. Ex. 4, at 19-23.) His March 26, 2015 response to his 2015 Evaluation (“2015 Complaint”) alleges that his recommendations, comments, and memorandums are “Discriminatory, Harassment, Retaliatory and Bias, ” and Plaintiff writes that “[t]hese comments are in summary an effort to justify continuing bias in my current assignment. This is a continuation of retaliation and discriminatory practices arising from instigated complaints . . .” (See Berg. Decl. Ex. 5, at 13- 15.) I therefore disagree with OCA's assertion that the 2014 and 2015 Complaints are not considered protected activity because they “do not assert a complaint of discriminatory treatment of any kind.” (See OCA Mem. 19-22.)

In conclusion, in resolving Defendants' motions for summary judgment on Plaintiff's retaliation claims, I consider Plaintiff's 2009 Tribune Society Complaint, 2009 Non-Contractual Grievance, 2014 Complaint, and 2015 Complaint to be protected activities.

ii. Claim Against OCA

OCA moves for summary judgment on Plaintiff's Title VII retaliation claim on the grounds that Plaintiff's 2015 Evaluation was not an adverse employment action, and that there is no casual nexus between Plaintiff's protected activities and the alleged adverse actions.

1) Adverse Employment Actions

In considering whether Plaintiff was subjected to adverse employment actions, I only consider events occurring after January 16, 2015. (See supra Section IV.A.1.b.) Based on Plaintiff's allegations, this includes Plaintiff's 2015 Evaluation. I have already found that the May 2015 Discipline and his June 2015 Termination constitute adverse employment actions under the more stringent standard used for discrimination claims; therefore, I do not rehash that finding here.

I do, however, consider whether the 2015 Evaluation was an adverse action under the more lenient retaliation standard. OCA argues that Plaintiff's 2015 Evaluation, which found he “needs improvement, ” is not adverse because “it did not result in the loss of a salary increment and therefore had no impact on the terms and condition of his employment.” (OCA Mem. 20.) Currently, there is a disagreement within this Circuit regarding whether a negative performance review, without more, constitutes an adverse employment action in the retaliation context. See Petyan v. N.Y.C. L. Dep't, No. 14-CV-1434 (GBD)(JLC), 2015 WL 1855961, at *14 (S.D.N.Y. Apr. 23, 2015), report and recommendation adopted, No. 14 Civ. 1434 (GBD)(JLC), 2015 WL 4104841 (S.D.N.Y. July 2, 2015) (explaining disagreement); Bowen-Hooks v. City of N.Y., 13 F.Supp.3d 179, 228 (E.D.N.Y. 2014) (same). Given the broader standard used for retaliation claims, I find this action likely was adverse, as it included numerous negative comments about Plaintiff, including that he is insubordinate, and that Plaintiff “needs to maintain a ‘Service to public' approach.” (See Berg. Decl. Ex. 5); see Siddiqi, 572 F.Supp.2d at 372 (“unlike in discrimination claims, negative performance reviews, standing alone, can be considered an adverse employment action”); Krinsky v. Abrams, No. 01 CV 5052(SLT)(LB), 2007 WL 1541369, at *11 (E.D.N.Y. May 25, 2007), aff'd, 305 Fed.Appx. 784 (2d Cir. 2009) (“a negative evaluation, or the threat of a negative evaluation, while not an adverse employment action that affects terms and conditions of employment, might dissuade a reasonable worker from making or supporting a charge of discrimination.”) (internal quotation marks omitted); Petyan, 2015 WL 1855961, at *14 (adopting approach that negative performance reviews, without more, can be considered adverse actions because it “better comports” with the broader standard used in the retaliation context). I therefore find that under these circumstances, this evaluation constitutes an adverse employment action.

2) Casual Connection

OCA contends that there is no casual connection between Plaintiff's protected activities and the adverse employment actions. (OCA Mem. 19-21.)

First, Plaintiff has presented no direct evidence to suggest that he received a negative performance review, was disciplined, and had his employment terminated because of his race. There is extensive evidence in the record suggesting why these actions occurred, including complaints from the public about Plaintiff's conduct, (see Accetta Decl. ¶¶ 15-22), Plaintiff's altercation with Loehr, (id. ¶ 34; Loehr Decl. ¶¶ 26-27), and Plaintiff not following the Call-In Policy while on probation, (see Murphy Decl. ¶¶ 23-27.)

Second, Plaintiff has failed to indirectly demonstrate a causal connection. As noted above, Plaintiff has failed to demonstrate disparate treatment of fellow employees. (See supra IV.A.2.b.iii.) Plaintiff has also failed to establish a causal connection based on temporal proximity. Regarding Plaintiff's 2015 Evaluation, which was signed by Defendant Accetta on April 1, 2015, (see Berg Decl. Ex. 5), Plaintiff's protected activities: the 2009 Tribune Society Complaint, 2009 Non-Contractual Grievance, and 2014 Complaint, are too attenuated to establish a causal connection based on temporal proximity. See Smith, 440 F.Supp.3d at 343 (collecting cases) (no causal connection where adverse action occurred three and four months after protected activity and where adverse action occurred two years after protected activity); Clark Cty. Sch. Dist., 532 U.S. at 274 (no causal connection for adverse action 20 months after protected activity); Altieri v. Albany Pub. Library, 172 Fed.Appx. 331, 333 (2d Cir. 2006) (no causal connection where adverse action occurred 21 months after protected activity); Lambert v. Trump Int'l Hotel & Tower, 304 F.Supp.3d 405, 424-25 (S.D.N.Y. 2018) (no casual connection based on temporal proximity where the smallest gap between the adverse action and protected activity was three months).

Although not raised by Plaintiff, I note that I also find the “first opportunity to retaliate” theory inapplicable. This theory applies only where “the adverse action occurred at the first actual opportunity to retaliate.” Summa v., 708 F.3d at 128. Although the 2015 Evaluation did occur “on a corporate timetable, ” which could cut in favor of explaining the year-long gap, between 2014 and 2015, Plaintiff was subjected to another allegedly adverse action: Defendant O'Brien denying him leave to attend a job interview. Cf. Abromavage v. Deutsche Bank Sec. Inc., No. 18-CV-6621 (VEC), 2021 WL 1061596, at *9 (S.D.N.Y. Mar. 19, 2021) (finding gap did not negate temporal proximity where bonuses were set annually and terminations occurred on set dates); Summa, 708 F.3d at 128 (“The start of the spring season was the first moment in time when the football coaching staff could have retaliated against Summa as she was not directly working for them over the intervening months.”). In fact, retaliation could have, and allegedly did, occur “earlier and t[ook] any number of other forms; therefore, the ‘first opportunity to retaliate' theory has no application here.” Lambert, 304 F.Supp.3d at 425.

The May 2015 Discipline suffers from the same lack of temporal proximity described above. Although Plaintiff's 2015 Complaint was filed on March 26, 2015, (see Berg Decl. Ex. 5), which is close in time to the disciplinary decision issued on May 5, 2015, Judge Scheinkman requested that Judge Coccoma commence disciplinary proceedings on February 10, 2014, (see OCA 56.1 ¶ 55; Ind. Def. 56.1 ¶ 15); therefore, events were set in motion before Plaintiff's 2015 Complaint, and even before Plaintiff's 2014 Complaint, (see Berg Decl. Ex. 4). Any temporal connection is tenuous as best.

Plaintiff's attempt to indirectly establish causation between his protected activities and the May 2015 Discipline fails for another reason: Plaintiff has not established that Judge Coccoma, the decisionmaker regarding Plaintiff's 2015 Discipline, had any knowledge of Plaintiff's protected activities nor that he was influenced by a superior with knowledge of those activities. See, e.g., Ragin, 2010 WL 1326779, at *25 (no casual connection where Plaintiff “failed to demonstrate that anyone involved in the decision . . . was aware they she had complained”); Lambert, 304 F.Supp.3d at 425 (causal connection undermined where Plaintiff did not establish that the employees involved were aware of his EEOC Charge); Sundaram v. Brookhaven Nat. Labs., 424 F.Supp.2d 545, 584 (E.D.N.Y. 2006) (holding Plaintiff failed to establish a prime facie case of retaliation “because there is no evidence that any of the decisionmakers was aware of the plaintiff's protected activity and thus no evidence of a causal connection between the protected activity and the defendant's hiring decision”). Although Plaintiff does allege that he made “repeated[] complaint[s] to Accetta, O'Brien and others of the discriminatory treatment, ” (SAC ¶ 47), and the record does show that he did make complaints by way of responses to his evaluations, he has not put forth evidence that anyone other than Defendants Accetta or O'Brien saw those complaints, nor does he supply evidence that Defendants Accetta and/or O'Brien brought those complaints to the attention of Judge Coccoma.⁴¹ Finally, neither Defendants O'Brien or Accetta made the decision to discipline Plaintiff in 2015. Regarding Defendant O'Brien, I previously held that Plaintiff failed to “allege how Defendant O'Brien was involved in the decision to place Plaintiff on probation.” (MTD M&O 18.) Defendant Accetta filed a sworn declaration stating that “he did not communicate with Judge Coccoma or any other UCS judge or official about whether the charges against Plaintiff should be sustained, or what penalties, if any, should be imposed, ” and that his “only involvement in the disciplinary proceeding was [his] factual testimony” which “did not extend to the merits of the charges against Plaintiff.” (Accetta Decl. ¶¶ 35-36.) This likewise undermines any causation argument. See Ragin, 2010 WL 1326779, at *25 (holding Plaintiff failed to establish causal connection where Plaintiff did not establish that only person aware of protected activity “played a direct role in, or influenced, the decision”). In short, the decisionmaker as to Plaintiff's May 2015 Discipline had no knowledge of Plaintiff's protected activity, and those who had knowledge of Plaintiff's protected activities, were not the decisionmakers.

41 Although these Complaints would have been kept in Plaintiff's personnel folder, (see Pl. Decl. Ex. P-9), Plaintiff has presented no evidence that Judge Coccoma did in fact review them.

Plaintiff's claim based on his June 9, 2015 Termination fails for the same reasons I have discussed above. First, the termination of his employment is too attenuated from his protected activities, the most recent of which occurred three months before, to establish retaliatory intent based on temporal proximity. Second, he has not established that Judge Scheinkman, who recommended that Plaintiff employment be terminated, or that Judge Coccoma, who terminated Plaintiff's employment, were aware of his protected activities. Additionally, Defendant Accetta, who Plaintiff did in fact complain to, was no longer employed at the time and had no involvement in the termination decision. (See Accetta Decl. ¶ 40.)

iii. Claims Against Individual Defendants

The Individual Defendants move for summary judgment on Plaintiff's retaliation claims on numerous grounds including lack of personal involvement, that Plaintiff's claims are based on non-adverse employments actions, and a lack of causal connection. I note that based on my previous opinion, the surviving retaliation claims against the Individual Defendants are: (1) Defendant Accetta retaliated against Plaintiff based on the May 2015 Discipline and June 2015 Termination; and (2) Defendants Accetta and O'Brien retaliated against Plaintiff in their day-today management of the Surrogate's Court. (See MTD M&O 18-19.) Because I dismissed as untimely Plaintiff's § 1983 and NYSHRL claims premised on acts that occurred before March 21, 2013, supra Section IV.A.1.b, when considering the Individual Defendants' motion, I only consider allegedly adverse acts occurring after that date.

1) Personal Involvement of Defendant Accetta

Regarding Plaintiff's retaliation claim, I make the same findings regarding Defendant Accetta's personal involvement in the May 2015 Discipline and June 2015 Termination as I did with respect to Plaintiff's discrimination claim. (See supra Section IV.2.b.ii.1.) Plaintiff's retaliation claim against Defendant Accetta stemming from the June 2015 Termination is dismissed for lack of personal involvement.

2) Prima Facie Case

The Individual Defendants challenge Plaintiff's showing of a prima facie case of retaliation with respect to prongs three and four of the McDonnell Douglas framework: adverse employment action and causal connection.

a) Adverse Employment Actions

The Individual Defendants argue that Plaintiff asserts claims based on alleged actions that were not “adverse.” (Ind. Defs.' Mem. 20-23.) It bears noting that I previously dismissed the § 1983 and the NYSHRL retaliation claims against Defendant O'Brien stemming from Plaintiff's May 2015 Discipline and June 2015 Termination, and I dismissed all § 1983 and NYSHRL retaliation claims against Loehr. (See MTD M&O.) I have dismissed the § 1983 and the NYSHRL retaliation claims against Defendant Accetta that stem from the June 2015 Termination. (Supra Section IV.3.b.iii.1.) I also dismissed Plaintiff's retaliation claim against the Individual Defendants based on Plaintiff's July 2013 suspension. (See MTD M&O 19.) Therefore, I do not consider those events here.

The alleged adverse employment actions that remain before me include Plaintiff's 2014 and 2015 Evaluations, counseling sessions from June 2013, July 2014 and January 2014, Defendant Accetta's 2013 phone call to Plaintiff inquiring about his whereabouts, the September 2014 denial of leave to attend an OCA job interview, the May 2015 Discipline, and general allegations that O'Brien encouraged Caucasian subordinates to challenge his authority.⁴²

42 Plaintiff also appears to argue that Defendant Accetta's decision to have Defendant O'Brien conduct his reviews was an adverse action. (See SAC ¶ 54.) Based on Plaintiff's declaration and Defendant Accetta's declaration, it seems that Defendant O'Brien resumed conducting his evaluations in 2012, (see Pl. Decl. ¶ 33; Accetta Decl. ¶ 8); this allegedly adverse action therefore is outside the statute of limitations. Plaintiff also alleges that sometime in 2013, stickers were placed on his office door that provided the name and number of the WorkLife Assistance Program, (see Pl. Decl. ¶ 89, Ex. P-21); Plaintiff, however, does not identify who placed these stickers. Therefore, I do not consider this allegedly adverse action because Plaintiff has failed to put forth evidence of the Individual Defendants' personal involvement.

I have already found that the 2014 and 2015 Evaluations and the May 2015 Discipline constitute adverse employment actions, supra Section IV.A.3.ii.1, and I do not repeat my discussion here. As I have noted, the adverse employment action standard for retaliation claims is broader than that used for discrimination claims. Vega, 801 F.3d at 90. The Supreme Court has recognized that “[c]ontext matters. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” White, 548 U.S. at 69 (internal quotation marks omitted). Here, when considered alone, the actions may be insufficient to meet the adverse employment action standard-however, when considered in the aggregate, the actions alleged by Plaintiff, including numerous counseling sessions, questions about Plaintiff's whereabouts, denial of leave, and challenges of authority, “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega, 801 F.3d at 90 (internal quotation marks omitted) (finding assignment of more students with excessive absenteeism to teacher, temporary salary reduction, failure to notify teacher of curriculum change, and negative performance evaluation constituted adverse employment actions); Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (“Alleged acts of retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on greater significance when they are viewed as part of a larger course of conduct.”).⁴³ I find that Plaintiff adduced evidence sufficient to permit a reasonable trier of fact to find that he suffered adverse employment actions.⁴⁴

43 The Individual Defendants also argue that Plaintiff's 2012 Evaluation found he met expectations, and therefore could not be considered adverse. (Ind. Defs.' Mem. 22). Because this evaluation is outside the statute of limitations, I do not consider it here.

44 Although the Individual Defendants argue that “[i]nformal discipline, criticism, or counseling does not constitute an adverse act if no change in working conditions accompanies it, ” (Ind. Defs.' Reply 9-10) (quoting Rasko v. N.Y.C. Admin. for Children's Servs., 734 Fed.Appx. 52, 54 (2d Cir. 2018), cert. denied, 139 S.Ct. 863 (2019)), this was stated by the Second Circuit in the context of considering a disparate treatment claim. Additionally, the Individual Defendants citation to Henvill v. Metro. Transp. Auth., 600 Fed.Appx. 38, 39 (2d Cir. 2015) for the proposition that counseling is not adverse for purposes of a retaliation claim, (Ind. Defs.' Reply 9-10), is unpersuasive. Henvill concerned a motion to dismiss, and did not explicitly evaluate the allegedly adverse actions in the aggregate. 600 Fed.Appx. at 39.

b) Casual Connection

Although I find that Plaintiff suffered adverse employment actions at the hands of the Individual Defendants, Plaintiff fails to demonstrate any connection between the protected activity and the adverse employment actions.

Plaintiff has presented no evidence demonstrating that Defendants Accetta or O'Brien reviewed Plaintiff negatively, counseled Plaintiff regarding his work, checked in on his whereabouts, and denied his leave request because of his race. Instead, there is extensive evidence in the record suggesting the reasons why these actions were taken: Plaintiff continually struggled with punctuality, interactions with court users, and interactions with colleagues. As discussed above, Plaintiff submitted testimony from a fellow OCA employee who stated that he remembered Defendant O'Brien mimicking the speech pattern and behavior of an African American OCA employee. (See Pl. Decl. Ex. P-30, at 227:1-23.) This OCA employee, however, was not Plaintiff, and “several inferences are required to conclude that this was an admission of retaliation” against Plaintiff or that it was connected in any way to an adverse employment action. See Smith, 440 F.Supp.3d at 342.

Plaintiff has also failed to indirectly demonstrate a causal connection, including by showing disparate treatment of comparable employees, see supra Section IV.A.2.b.iii, and temporal proximity. Regarding causation based on temporal proximity, Plaintiff's 2009 Tribune Society Complaint and 2009 Non-Contractual Grievance are far too attenuated from the adverse actions that I consider here, which occurred in March 2013 at the earliest, to establish a causal connection. This period of four years suggests “no causality at all.” Smith, 440 F.Supp.3d at 343 (internal quotation marks omitted) (no casual connection for adverse action two years after protected activity).

Plaintiff's 2014 Complaint is too distant from Plaintiff's 2015 Evaluation and Plaintiff's May 2015 Discipline to create an inference of a causal connection.⁴⁵ The 2013 and 2014 counseling sessions that Plaintiff complains of and Defendant Accetta's call to Plaintiff sometime in 2013 occurred before Plaintiff filed the 2014 Complaint. (See Ind. Defs. 56.1 ¶¶ 8, 13; OCA 56.1 ¶¶ 25, 31-32; Morales Decl. Exs. E, F; Berg Decl. Ex. 4) (Plaintiff was counseled on June 5, 2013 and January 24, 2014) (2014 Complaint was dated April 2, 2014). Therefore, no casual connection exists between Plaintiff's 2014 Complaint and these three adverse employment actions. See, e.g., Smith, 440 F.Supp.3d at 344 (no casual connection where adverse action predated complaint); Marshall v. NYC Bd. of Elections, 322 Fed.Appx. 17, 19 (2d Cir. 2009) (action not retaliatory where it occurred before complaint); Holmes v. Astor Servs. for Children & Families, No. 16-CV-2260 (CS), 2017 WL 3535296, at *7 (S.D.N.Y. Aug. 16, 2017) (same).

45 I likewise find the “first opportunity to retaliate” theory inapplicable here. (See supra Section IV.A.3.b.ii.2)

Regarding Defendant Accetta's counseling of Plaintiff regarding his tardiness in July 2014 and Defendant O'Brien's denial of Plaintiff's request for leave around September 25, 2014, between three and five months passed between Plaintiff's 2014 Complaint and these actions. I find this gap in time “insufficient to yield an inference of causal connection.” Smith, 440 F.Supp.3d at 343 (finding three- and four-month gap insufficient to establish causal connection.) As to Plaintiff's alleged challenges to his authority, Plaintiff has put forth general allegations, but has offered no concrete evidence, other than conclusory statements, to establish a connection between these alleged actions and his 2014 Complaint. (See generally Pls.' Decl. ¶¶ 29, 43-49, 79-84.) Additionally, the example cited by Plaintiff in his Second Amended Complaint occurred before his 2014 Complaint. (See SAC ¶ 80.)

Plaintiff's 2015 Complaint occurred after the adverse events described above, (see Berg Decl. Ex. 5.); therefore, Plaintiff has failed to establish any link between his 2015 Complaint and these actions.

Finally, any causal connection between the May 2015 Discipline and Plaintiff's 2015 Complaint suffers from the same lack of causal connection that I described regarding OCA. (Supra Section IV.3.b.ii.2.) Plaintiff's 2015 Complaint was filed on March 26, 2015, (see Berg Decl. Ex. 5), which is temporally close to the disciplinary decision issued on May 5, 2015, however, Judge Scheinkman requested that Judge Coccoma commence disciplinary proceedings months earlier, on February 10, 2014, (see OCA 56.1 ¶ 55; Ind. Def. 56.1 ¶ 15); therefore, these events were set in motion before Plaintiff's 2015 Complaint, and even before Plaintiff's 2014 Complaint, (see Berg Decl. Ex. 4).

In conclusion, I find that Plaintiff has failed to establish a causal connection between his protected activities and the adverse employment actions he suffered. Plaintiff, therefore, has failed to make out a prima facie case of retaliation against the Individual Defendants.

4. Legitimate Non-Discriminatory and Non-Retaliatory Reasons

Defendants argue that the adverse employment actions taken against Plaintiff were for legitimate non-discriminatory and non-retaliatory reasons. (OCA Mem. 21-23; Ind. Defs.' Mem. 24-25.) I agree. Even assuming arguendo that Plaintiff met his burden and made prima facie cases of discrimination and retaliation under Title VII, § 1983, and the NYSHRL, which he has not, Defendants have proffered non-discriminatory and non-retaliatory reasons for each of the adverse employments actions, and Plaintiff has not shown that such reasons were pretextual or that retaliation was the but-for cause of the adverse actions.

Regarding Plaintiff's 2014 and 2015 Evaluations, which rated Plaintiff as “Unsatisfactory” and “Needs Improvement, ” (Ind. Defs. 56.1 ¶¶ 2-3), Defendants had non-discriminatory and non-retaliatory reasons for these ratings, including his 2013 Discipline, his counseling session based on a court user's complaint, complaints from a court user and an employee, and his continued late arrivals, (see Accetta Decl. ¶¶ 10-12.) See Augustine v. Cornell Univ., No. 14-CV-7807 (JPO), 2018 WL 1474402, at *12 (S.D.N.Y. Mar. 26, 2018), aff'd sub nom. Brown v. Cornell Univ., 758 Fed.Appx. 226 (2d Cir. 2019) (legitimate non-retaliatory reasons for sub-par evaluation included “shortcomings” in work performance). Plaintiff's counseling sessions in 2013 and 2014 were similarly justified-they were due to negative complaints about Plaintiff filed by court users and Plaintiff's continued tardiness. (See Accetta Decl. ¶¶ 13, 19-22.) Additionally, the denial of Plaintiff's request for leave, which was ultimately remedied, (see OCA 56.1 ¶ 27; Pl. OCA 56.1 Resp. ¶ 27; Morales Decl. Ex. L), and Defendant Accetta's inquiry into Plaintiff's whereabouts, (see OCA 56.1 ¶ 25; Pl. OCA 56.1 Resp. ¶ 25), are explained by Plaintiff's persistent lateness and failure to follow policies regarding leave requests, (see Berg Decl. Exs. 3, 4, 5.)

Finally, the May 2015 Discipline and June 2015 Termination are supported by legitimate non-retaliatory and non-discriminatory reasons. Plaintiff was disciplined because he resisted the supervision of his managers, and was uncooperative, rude, and disrespectful to Loehr, including by insinuating that Loehr was a liar. (OCA 56.1 ¶ 56; Murphy Decl. Ex. I.) This constitutes a valid reason for discipline. See, e.g., Holowecki v. Fed. Exp. Corp., 382 Fed.Appx. 42, 45-46 (2d Cir. 2010) (holding employer had a legitimate reason for termination where plaintiff called co-worker vulgar names, even where plaintiff denied the accusation); Hawkins v. N.Y.S. Office of Mental Health, 845 Fed.Appx. 9, 11 (2d Cir. 2021) (holding employer had a legitimate non-retaliatory reason for termination where plaintiff had poor performance, was insubordinate, and was hostile to her supervisor). Plaintiff's termination for failing to follow the terms of his probation was similarly a non-discriminatory and non-retaliatory reason for termination. See, e.g., Christopher v. N.Y.C. Police Dep't, No. 98CIV.7816(JSM), 2000 WL 1051917, at *1 (S.D.N.Y. July 31, 2000), aff'd, 8 Fed.Appx. 79 (2d Cir. 2001) (granting summary judgment in favor of employer in employment discrimination action where employee was fired for violating terms of probation); see also Pointdujour v. Mount Sinai Hosp., 121 Fed.Appx. 895, 897-98 (2d Cir. 2005) (employee's failure to participate in employee assistance program as required by employer was legitimate non-retaliatory ground for termination); Mattera v. JPMorgan Chase Corp., 740 F.Supp.2d 561, 573-74 (S.D.N.Y. 2010) (employee's failure to comply with specific objectives and to improve his performance was legitimate non-discriminatory ground for termination).

Plaintiff has offered no evidence to suggest that the reasons put forth by Defendants are pretextual or that retaliation was the but-for cause of the adverse actions described above.⁴⁶Instead, Plaintiff relies on conclusory allegations. Put simply, Plaintiff “is left to combat defendants' legitimate, nondiscriminatory reasons for the adverse actions with h[is] conclusory claim that defendants retaliated [and discriminated] against h[im] . . . Such threadbare allegations cannot carry the day.” Smith, 440 F.Supp.3d at 345; see also Id. at 337-40 (holding that employee's conclusory allegations were insufficient to demonstrate pretext and to show that retaliation was the but-for cause of defendants' adverse actions even where employee cited to a racist stray remark); Pointdujour, 121 Fed.Appx. at 897-98 (collecting cases) (affirming grant of summary judgment in favor of employer where employee “offer[ed] nothing more than her own conclusory allegations to challenge th[e] reason or meet her ultimate burden of proving retaliation”).

46 As described above, I have found the fact that Defendant O'Brien previously mimicked an African-American employee, who was not Plaintiff, as not probative regarding Plaintiff's claims of discrimination and retaliation. (See supra Sections IV.A.2.b.iii, A.3.b.iii.2.b.)

B. Hostile Work Environment Claim

As part of Count I, Plaintiff brings a hostile work environment claim pursuant to Title VII against OCA. (SAC ¶ 95.) Previously, I dismissed Plaintiff's hostile work environment claim against the Individual Defendants for failure to state a claim. (MTD M&O 11-14.) In my Opinion, I observed that “Count I of the Second Amended Complaint asserts that ‘Defendant OCA' forced Plaintiff ‘to work in a hostile environment'”; however, Plaintiff argued “that a review of the foregoing paragraphs in the Second Amended Complaint makes clear that Williams also asserts his hostile work environment claim against the Individual Defendants.” (Id. at 11-12 n.6.) I stated that the Individual Defendants may have abandoned any argument that Plaintiff was not pursuing a hostile work environment claim against them, and “[s]ince OCA cannot be liable except through the actions of its employees, ” I would address the merits of the hostile work environment argument. (Id.)

OCA argues that I should similarly dismiss Plaintiff's hostile work environment claim against OCA because my earlier ruling constitutes the law of the case, and that Plaintiff's claim against OCA rests on the same conduct I previously found insufficient to state a claim. (See OCA Mem. 23-24; OCA Reply 9-10.)⁴⁷ Plaintiff argues that my earlier decision does not bar him from pursuing this claim against OCA, that my “decision was made at the pleading stage of the litigation and [I] did not have before [me] the record of harassment Williams presents in his opposition, ” and that the conduct involved more than just the identified Individual Defendants. (Pl.'s Mem. 24.)

47 “OCA Reply” refers to OCA's reply memorandum of law in further support of its motion for summary judgment, filed on December 13, 2019. (Doc. 221.)

In my MTD M&O, I considered Plaintiff's allegations that Plaintiff's subordinates “openly challenged” his authority, disregarded his directives, and complained to management, who, instead of remedying the situation, reprimanded Plaintiff and tried to convince him to relinquish his supervisory authority. (See MTD M&O 13.) I also considered Plaintiff's allegation that he was unjustly subjected to poor performance reviews and was given additional duties above and beyond his regular assignments. (Id.) The allegations before me at this stage are generally the same. (See Pl. Decl. ¶ 19) (complaining of negative performance evaluations); (id. ¶ 75) (stating that Defendant O'Brien encouraged subordinates to challenge his authority); (id. ¶ 78) (stating that Plaintiff was reprimanded for asserting authority); (id. ¶ 84) (complaining that his workload was increased).

While recognizing the difference between the standard on a motion to dismiss and a motion for summary judgment, Plaintiff has not supplemented the record currently before me with facts to suggest a different result. Although I only dismissed the claim as to the Individual Defendants, as OCA did not move to dismiss, I considered Plaintiff's allegations generally, not solely as they applied to the Individual Defendants. (See, e.g., MTD M&O 13) (allegations that subordinates challenged his authority and complained to management). Plaintiff states that the hostile work environment was created not only by the Individual Defendants, but by other OCA employees who negatively affected the work environment. (Pl.'s Mem. 24.) Even considering the actions of other OCA employees and the more fulsome record now before me, I do not find that Plaintiff has produced evidence that his “workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.” Fleming v. MaxMara USA, Inc., 371 Fed.Appx. 115, 118 (2d Cir. 2010) (summary order) (internal quotation marks omitted) (affirming dismissal of hostile work environment claim where defendants excluded plaintiff from meetings, excessively criticized her work, refused to answer her work-related questions, imposed additional duties on her, and threw books and sent rude emails to her); Davis-Molinia v. Port Auth. of N.Y. & N.J., No. 08 CV 7586(GBD), 2011 WL 4000997, at *11 (S.D.N.Y. Aug. 19, 2011), aff'd, 488 Fed.Appx. 530 (2d Cir. 2012) (finding no hostile work environment where plaintiff was excluded from meetings, deliberately avoided, yelled at, and talked down to). OCA's motion for summary judgment on Plaintiff's hostile work environment claim is therefore granted.⁴⁸

48 Given that I find that Plaintiff has failed to adduce evidence sufficient to meet the requisite standard, I do not resolve whether my dismissal of the hostile work environment claim against the Individual Defendants constitutes the law of the case.

V. Conclusion

For the foregoing reasons, OCA's and the Individual Defendants' motions for summary judgment are GRANTED. Plaintiffs claims are DISMISSED.

Because the parties' motions involve redacted documents and documents filed under seal, the parties are directed to jointly submit any proposed redactions to this Opinion & Order by August 13, 2021, so that the Opinion & Order can then be publicly filed.

The Clerk of Court is respectfully directed to terminate docket entries 190 and 199, and to close this case.

The Clerk of Court is respectfully directed to make this order viewable only to counsel for the parties: Sandra Dorothy Parker, Pedro Angel Morales, and Michael Adam Berg.

SO ORDERED.