constable for political remark made to co-employee during private
conversation). Even a transfer that entails no loss of pay or
benefits may constitute an adverse employment action. Rodriguez
v. Board of Education, 620 F.2d 362, 366 (2d Cir. 1980). Collins
has failed to identify any action taken against her because of
her reports as Infection Control Officer. She merely alleges that
her recommendations were not followed, but does not demonstrate
how this adversely affected her employment status. Because
Collins has not adequately demonstrated the existence of adverse
employment action against her as a consequence of the OSHA
reports, this speech cannot support her First Amendment claim.
The defendants contend that Collins' complaints of sexual
harassment and discrimination were not entitled to First
Amendment protection because they were motivated by and concerned
only her particular employment situation and thus did not involve
matters of public concern. In this area, disputed issues of
material fact exist that cannot be summarily decided. It is clear
that if Collins' complaints "implicated system-wide
discrimination they would have unquestionably involved a matter
of `public concern.'" Saulpaugh, 4 F.3d at 143. A public
employee's comments on gender discrimination may, in certain
circumstances constitute matters of public concern. Donahue v.
Windsor Locks Bd. Of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.
1987); Wise, 928 F. Supp. at 372 (speech regarding sexual
harassment in police department held to be a matter of public
concern); Poulsen, 811 F. Supp. at 894 (police woman's
allegations of sexual harassment held to constitute speech on a
matter of public concern). If Collins can show that she "wanted
to debate issues of sex discrimination, that her suit sought
relief against pervasive or systemic misconduct by a public
agency or public officials, or that her suit was part of an
overall effort . . . to correct allegedly unlawful practices or
bring them to public attention," Saulpaugh, 4 F.3d at 143
(internal quotations omitted), her complaints of sexual
harassment are deserving of protection.
Collins has alleged sufficient facts to satisfy the second
element of the test for her First Amendment claim — that the
speech played a substantial part in the employer's adverse
employment action. Material changes in her working conditions in
March of 1996 following her February EEOC complaint may be an
adverse employment action. The other retaliatory conduct of which
collins complains may also amount, in the aggregate, to de
facto demotions that constitute adverse employment action. See
Cahill, 7 F. Supp.2d at 350. Whether this is ultimately so must,
of course, await trial. However, summary judgment on this claim
is similarly denied.
3. TITLE VII RETALIATION CLAIM
Section 704 of Title VII prohibits an employer from
"discriminat[ing] against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment
practice by this subchapter." § 42 U.S.C. § 2000e- 3(a). Section
703(a) defines an "unlawful employment practice" as follows:
It shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge
any individual, or otherwise 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). "To establish a prima facie case of
retaliation, an employee must show `(1) participation in a
protected activity known to the defendant; (2) an employment
action disadvantaging the plaintiff; and (3) a causal connection
between the protected activity and the adverse employment
action.'" Quinn, 159 F.3d at 769 (quoting Tomka v. Seiler
Corp., 66 F.3d 1295, 1308 (2d Cir. 1995)); see also Wimmer v.
Suffolk County Police
Dept., 176 F.3d 125, 134 (2d.Cir. 1999). Disputed issues of
material fact exist as to whether plaintiff was retaliated
against in violation of Title VII. Defendants' motion for summary
judgment is therefor denied on this claim.
4. HRL DISABILITY CLAIM
Defendants move for summary judgment on plaintiff's claim that
she was discriminated against because of her disability under the
New York Human Rights Law ("HRL"), N.Y.Exec.Law § 290, et seq.
Following gall bladder surgery in September of 1996, Collins
claims to have suffered from post-operative diarrhea and stomach
cramps. Her disability claims is based on the denial of her
request to schedule her lunch hour at the end of her shift,
allowing her to leave work an hour early, to avoid having an
embarrassing accident on the job. Because plaintiff has not shown
that she suffered from a disability, summary judgment on this
claim is granted.
Collins' disability claim under HRL is subject to the same
analysis as claims brought under the Americans with Disabilities
Act ("ADA"), which directs that no employer "shall discriminate
against a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment." § 42 U.S.C. § 12112(a). See Ryan v.
Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998) (applying same
analysis to plaintiff's claims under the ADA and the HRL);
Johnson v. New York Medical College, No. 95 Civ. 8413, 1997 WL
580708, at *4 n. 1 (S.D.N.Y. Sept. 18, 1997).
In order to survive a defendant's motion for summary judgment
on a disability discrimination claim, the plaintiff must
establish a prima facie case of discrimination by producing
evidence sufficient to support a reasonable inference of
disability discrimination. See Ryan, 135 F.3d at 869; Lyons v.
Legal Aid Soc'y, 68 F.3d 1512, 1515 (2d Cir. 1995); Daley v.
Koch, 892 F.2d 212, 214 (2d Cir. 1989) (discussing disability
claim brought pursuant to the Rehabilitation Act). To meet that
burden, a plaintiff must show that (1) she is an individual with
a "disability" as defined by the ADA, (2) she is otherwise
qualified to perform the basic functions of her job, and (3) she
was discriminated against because of her disability. Heilweil v.
Mount Sinai Hosp., 32 F.3d 718, 721 (2d Cir. 1994); Aquinas v.
Federal Express Corp., 940 F. Supp. 73, 77 (S.D.N.Y. 1996).
The ADA defines "disability" as one of three things: (A) a
physical or mental impairment that substantially limits one or
more of the major life activities; (B) a record of such
impairment; or (C) being regarded as having such an impairment. §
42 U.S.C. § 12102(2) (1994); Colwell v. Suffolk County Police
Dept., 158 F.3d 635, 641 (1998). Plaintiff must prove that the
disability substantially interferes with "major life activities,"
defined as "functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning and working." Colwell, 158 F.3d at 642. Other major
life activities include, but are not limited to "sitting,
standing, lifting, or reaching." Ryan, 135 F.3d at 870 (quoting
U.S. Equal Employment Opportunity Commission, Americans with
Disabilities Act Handbook I-27 (1992)).
The EEOC regulations implementing the ADA define the term
"substantially limits" to mean:
(i) Unable to perform a major life activity that
the average person in the general population can
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can
perform a particular major life activity as compared
to the condition, manner or duration under which the
average person in the general
population can perform that same major life activity.
§ 29 C.F.R. § 1630.2(j)(1); Colwell, 158 F.3d at 643. The
regulations recommend that the following factors be considered in
determining whether an individual is substantially limited in a
major life activity: "(i) the nature and severity of the
impairment; (ii) the duration or expected duration of the
impairment; and (iii) the permanent or long term impact, or the
expected permanent or long term impact of or resulting from the
impairment." 29 C.F.R. § 1630.2(j)(2). See also Ryan, 135 F.3d
at 871-72 (applying factors).