defendants' decision to discharge her. The facts fully support
defendants' contention that plaintiff made inappropriate
contacts with Nelson and that such contacts could reasonably
tend to undermine the operations of the EMPO.
Plaintiff next argues that she was terminated prior to her
first grievance hearing, that she complained about the
disciplinary warnings given to her by Poux, that many of the
grounds for her warnings and her termination were based upon
the biased opinions of Hendricks and Baylor, and that the
University did not properly follow its grievance procedure. The
Court cannot discern a showing of prohibited national origin
discrimination by the above-listed arguments. At most, they may
be indicative of a failure by defendants to abide by any
University disciplinary procedures or of retaliation.*fn5
See discussion infra at 47. Further, defendants were entitled
to rely upon the information provided by Hendricks and Baylor.
See, e.g., Mopkins v. St. Louis Die Casting Corp., 423 F. Supp. 132,
135 (E.D.Mo. 1976) (employer may use subjective criteria
and rely upon complaints of co-workers), aff'd, 569 F.2d 454
(8th Cir. 1978). Although there unquestionably was tension and
a certain amount of dislike among the EMPO staff, defendants
had ample evidence to support their conclusion that plaintiff
often acted in an inappropriate, insubordinate, and
unprofessional manner. See id. Absent evidence of
discriminatory motivation, this Court "does not sit as a
super-personnel department that reexamines an entity's business
decisions, and therefore, a court may not second-guess an
employer's personnel decision absent demonstrably
discriminatory motive." Phillips, 937 F. Supp. at 37 n. 7
(internal quotations and citations omitted). The arguments
offered by plaintiff do not suggest that the reasons for her
termination were a pretext for unlawful discrimination or that
her termination was motivated by prohibited discrimination.
Moreover, while Poux signed and delivered the termination
letter, the undisputed evidence demonstrates that several
persons, including Spiro, Cox, and Rehkulger, were involved in
the decisions to hire and fire plaintiff. See Cox Aff., at ¶ 3,
Pl.Ex. B., Poux Dep., at 178-79; Def.Ex. F; Def.Ex. N; Def.Ex.
W; Def.Ex. EE; Cox Dep., at 88. However, plaintiff's evidence
of alleged discrimination discussed above solely relates to
Poux. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct.
1775, 1804-05, 104 L.Ed.2d 268 (1989) (O'Connor, J.,
concurring) ("[S]tatements by nondecisionmakers, or statements
by decisionmakers unrelated to the decisional process itself,
[cannot] satisfy plaintiff's burden . . ."); See, e.g., Bush v.
Dictaphone Corp., 161 F.3d 363, 369 (8th Cir. 1998); Laurin v.
Providence Hosp., 150 F.3d 52, 58 (1st Cir. 1998);
Rivers-Frison v. Southeast Missouri Comm. Treatment Ctr.,
133 F.3d 616, 619 (8th Cir. 1998); Smith v. Firestone Tire & Rubber
Co., 875 F.2d 1325, 1330 (7th Cir. 1989) (remarks made by a
decisionmaker do not demonstrate illegitimate criteria unless
related to the specific employment action at issue); Flynn v.
Goldman, Sachs & Co., 836 F. Supp. 152, 163 (S.D.N.Y. 1993).
Plaintiff offers no evidence that the other decisionmakers were
either unduly influenced by Poux's alleged discriminatory
attitude or that they themselves acted for prohibited
The evidence overwhelmingly demonstrates that plaintiff was
terminated because of personality conflicts, her lack of
professionalism, insubordination, violation
of the EMPO's policies, and her inappropriate contact with
corporate sponsors of the EMPO. See Hollander, 172 F.3d at 201
(employee terminated because of interpersonal problems);
Phillips, 937 F. Supp. at 34 (employee terminated for
insubordination for failure to lower her voice at a meeting);
Fenton v. The Pritchard Corp., 926 F. Supp. 1437, 1447 (D.Kan.
1996) (employee terminated for behaving in a threatening
manner); Mills v. Gibson Greetings, Inc., 872 F. Supp. 366, 371
(E.D.Ky. 1994) (employee terminated for arguing); James v.
Runyon, 843 F. Supp. 816,824 (N.D.N.Y. 1994) (employee
terminated due to her attitude), aff'd, 47 F.3d 1158 (2d Cir.),
cert. denied, 516 U.S. 841, 116 S.Ct. 126, 133 L.Ed.2d 75
(1995). "Indeed, the record . . . suggests that the likeliest
basis for [plaintiff's termination] was that the [EMPO] members
disliked her and lacked respect for her." Fisher v. Vassar
College, 70 F.3d 1420, 1436 (2d Cir. 1995).
Dislike of an individual, even if that individual is a member
of a protected group, without more, does not amount to
prohibited discrimination. While some of the reasons offered by
defendants for plaintiff's termination may have been pretexts,
that does not require a finding that they were pretexts for
unlawful discrimination. See Hollander, 172 F.3d at 201; Fisher
III, 114 F.3d at 1337-38, 1345. "Individual decision-makers may
intentionally dissemble in order to hide a reason that is
non-discriminatory but unbecoming or small-minded, such as
back-scratching, log-rolling, horse-trading, institutional
politics, envy, nepotism, spite, or personal hostility." Fisher
III, 114 F.3d at 1337. Reviewing the record as a whole in the
light most favorable to plaintiff, and considering the totality
of the circumstances, see Richardson v. New York State Dep't.
of Correctional Service, 180 F.3d 426, 436 (2d Cir. 1999),
there is insufficient evidence "that would permit a rational
factfinder to infer that the discharge was actually motivated,
in whole or in part, by discrimination on the basis of
[national origin]." Grady, 130 F.8d at 561.
In light of the strong presumption against discrimination
enunciated in Grady and Proud, see discussion supra at 235-36,
the lack of evidence tending to support plaintiff's claim that
she was the victim of prohibited discrimination, and the
overwhelming amount of evidence demonstrating that plaintiff
was terminated due to personality conflicts and
insubordination, defendants are entitled to summary judgment on
this cause of action.
b. Mixed Motive
Plaintiff is not entitled to a mixed motive analysis under
Price Waterhouse because she has failed to point to a smoking
gun or thick cloud of smoke. See Raskin, 125 F.3d at 60
(quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913
(2d Cir. 1997); Ostrowski v. Atlantic Mutual Ins. Cos.,
968 F.2d 171, 182 (2d Cir. 1992)). As discussed, her allegations of
discrimination on the basis of national origin simply do not
demonstrate that a discriminatory reason was a motivating
factor in her termination. Plaintiff has proffered no evidence
of policy documents or statements directly reflecting a
discriminatory attitude. See id. Further, because plaintiff is
unable to meet the level of proof required to carry her
ultimate burden in a pretext case, a fortiori, she cannot
establish a prima facie case of mixed-motive discrimination.
See Raskin, 125 F.3d at 60.
c. Race-Based Hostile Work Environment
Title VII is not limited to economic or tangible
discrimination, but extends to "[racial] harassment so severe
or pervasive as to alter the conditions of the victim's
employment and create an abusive working environment."
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275,
2283, 141 L.Ed.2d 662 (1998) (internal quotations and citations
omitted). "Title VII affords employees the right to
work in an environment free from discriminatory intimidation,
ridicule, and insult." Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986); see
Williams v. County of Westchester, 171 F.3d 98, 100 (2d Cir.
In the present case, plaintiff asserts a hostile work
environment claim against defendants. To prevail on her hostile
work environment claim, plaintiff must demonstrate: (1) that
her workplace was permeated with discriminatory intimidation
that was sufficiently severe or pervasive to alter the
conditions of her work environment, see Faragher, 524 U.S. 775,
118 S.Ct. at 2283 n. 1; and (2) that a specific basis exists
for imputing the conduct that created the hostile environment
to Cornell. Schwapp, 118 F.3d at 110; see Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996).
To be actionable, "[t]he conduct alleged must be severe and
pervasive enough to create an environment that `would
reasonably be perceived, and is perceived, as hostile or
abusive.'" Schwapp, 118 F.3d at 110; see also Faragher,
524 U.S. 775, 118 S.Ct. at 2283. In determining whether an
environment is sufficiently hostile or abusive, courts examine
all of the circumstances, including the frequency of the
discriminatory conduct, its severity, whether it is physically
threatening or humiliating or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work
performance. Faragher, 524 U.S. 775, 118 S.Ct. at 2283. "Simple
teasing, offhand comments, and isolated incidents (unless
extremely serious), will not amount to discriminatory changes
in the terms and conditions of employment." Id. (internal
citations and quotations omitted). "In order to meet [her]
burden, the plaintiff must show `more than a few isolated
incidents of racial enmity,' `there must be a steady barrage of
opprobrious racial comments,' evidence solely of `sporadic
racial slurs' does not suffice." Williams, 171 F.3d at 100
(quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.
1986); Schwapp, 118 F.3d at 110). In other words, Title VII
is not to be used as "a general civility code," but is
actionable only for conduct sufficiently "extreme to amount to
a change in the terms and conditions of employment." Id.
Pervasiveness and severity are independent and equal grounds on
which to support violations of Title VII. Faragher,
524 U.S. 775, 118 S.Ct. at 2283 (extremely serious isolated incidents
may be actionable); Harris v. Forklift Systems, Inc.,
510 U.S. 17, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (there must be
conduct that is "sufficiently severe or pervasive") (emphasis
supplied); see Witt v. Roadway Express, 136 F.3d 1424, 1432
(10th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 188, 142
L.Ed.2d 153 (1998); Quinn v. Green Tree Credit Corp.,
159 F.3d 759, 768 (2d Cir. 1998); Tomka, 66 F.3d at 1305; Torres v.
Pisano, 116 F.3d 625, 631 n. 4 (2d Cir.), cert. denied, ___
U.S. ___, 118 S.Ct. 563, 139 L.Ed.2d 404 (1997).
In support of her hostile work environment claim, plaintiff
points to the above-discussed allegations and, in particular,
the speak-English only instruction. However, as discussed,
plaintiff has failed to submit sufficient evidence to permit a
fair-minded jury to conclude that defendants' conduct was based
on plaintiff's race or national origin, see, e.g.,
Galdieri-Ambrosini v. National Realty & Dev. Corp.,
136 F.3d 276, 289 (2d Cir. 1998), or that the alleged conduct was
sufficiently severe or pervasive to adversely alter plaintiff's
work environment. See Williams, 171 F.3d at 101-102. For
example, plaintiff has failed to point to any evidence that
defendants used racial epithets, racially derogatory comments,
or any other evidence suggesting that defendants' actions were
based on her race or national origin. In fact, plaintiff
admitted at deposition that she could not recall hearing any
comments by anybody at the College that reflected bias against
Hispanics. See Oct. 19, 1998 Roman Dep., at 12, 42-43, Def.
Statement of Undisputed Facts, at ¶ 61. Rather, the evidence
reveals that defendants acted for legitimate, nondiscriminatory
2. Gender-Based Discrimination
In her Complaint, plaintiff also alleges that she was the
victim of gender-based discrimination. None of the above-cited
instances are sufficient to support a claim for gender-based
discrimination. There simply is no evidence that defendants
intentionally discriminated against plaintiff because of her
Plaintiff also claims that she was the victim of a
gender-based hostile work environment. In her response to
defendants' interrogatories, plaintiff identified the following
instances as evidence of a gender-based hostile work
environment: (1) in August 1994, Poux gave plaintiff a stack of
"fashion citations," instructed, her to use them, and made a
negative comment about her appearance; (2) in the Spring of
1994, Poux issued a fashion citation to a female student; (3)
in September 1994, Poux stated at a staff meeting that another
woman, Myers, was overweight and unhealthy, and criticized her
clothing as making her look heavier; (4) some time between
September 1994 and November 1994, Poux told Myers she should
dress more fashionably; (5) Poux commented that an extremely
pale female student dressed in black clothing looked like the
"walking dead"; (6) in October 1994, Poux criticized
plaintiff's colorful, casual clothing she was wearing on her
way to a conference and stated that she could not represent
Cornell looking that way; (7) in November 1994, Poux told
plaintiff she should go to the gym and lose weight; (8) in
September 1994, Poux told the EMPO staff they should get more
exercise; (9) between August 1994 and September 1994, Poux
gossiped about Cornell employees; and (10) in August or
September 1994, Poux told plaintiff that Linda Van Ness had
removed her blouse at a party and went drinking with some
students. However, plaintiff spends little time addressing this
claim in her submissions to the Court.
The standards discussed above with respect to a racially
hostile work environment similarly apply to claims of a
sex-based hostile work environment. See discussion supra at
242. Upon reviewing the totality of the circumstances, the
Court concludes that no fair-minded jury could find that
plaintiff was the victim of a hostile work environment on
account of her gender. No reasonable person would perceive
plaintiff's allegations as hostile or abusive. Similarly, none
of Poux's alleged comments, even if true, unreasonably
interfered with the performance of plaintiff's work. See
Leopold, 174 F.3d 261, 267-68.
The alleged incidents were isolated and sporadic and were not
sufficiently severe or pervasive to alter the terms or
conditions of plaintiff's work environment. Thus, plaintiff
cannot, as a matter of law, sustain a claim that she was
discharged because of her sex and her claim of sex
discrimination must be dismissed.
Defendants next move for summary judgment dismissing
plaintiff's claim of retaliation. Retaliation claims pursuant
to 42 U.S.C. § 2000e-3 are subject to the familiar McDonnell
Douglas burden shifting analysis previously described. See
discussion supra at 234. To establish a prima facie case of
retaliation, plaintiff must demonstrate that the employee was
engaged in protected activity, that the employer was aware of
that activity, that the employee suffered adverse employment
decisions, and that there was a causal connection between the
protected activity and the adverse employment action. See Quinn
v. Green Tree Credit Corp., 159 F.3d 759, 769; Manoharan v.
Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590,
593 (2d Cir. 1988).
a. Whether Plaintiff Engaged In Protected Activity
"To prove that [s]he engaged in protected activity, the
plaintiff need not
establish that the conduct [s]he opposed was in fact a
violation of Title VII." Manoharan, 842 F.2d at 593 (citing
Davis v. State University of New York, 802 F.2d 638, 642 (2d
Cir. 1986)). "However, the plaintiff must demonstrate a `good
faith, reasonable belief that the underlying challenged actions
of the employer violated the law.'" Id. (citing Abel v.
Bonfanti, 625 F. Supp. 263, 267 (S.D.N.Y. 1985); Francoeur v.
Corroon & Black Co., 552 F. Supp. 403, 412 (S.D.N.Y. 1982));
Quinn, 159 F.3d at 769.
On November 29, 1994, plaintiff sent an e-mail to Cox
referencing a warning she received from Poux and stating that
"I may be PERCEIVING HARASSMENT." (Emphasis in original). Pl.
ex. F. Plaintiff argues that "Cox should have reasonably felt
that Ms. Roman was complaining about sexual or racial
harassment." Pl. Mem. of Law, at 17. Harassment can be many
things and the use of that term does not automatically
implicate Title VII. The e-mail itself does not indicate that
plaintiff believed defendants were engaged in unlawful
employment practices. Plaintiff also alleges in her memorandum
of law that her December 6, 1994 grievance challenging the
English-only instruction constitutes protected activity.
Plaintiff's grievance letter makes no reference to
discrimination or improper employment practices. See Def.Ex. T.
Nevertheless, drawing all reasonable inferences in plaintiff's
favor, the Court concludes that these instances are sufficient
to satisfy her de minimis burden of demonstrating that she
engaged in protected activity.
b. Whether Plaintiff Suffered Adverse Employment Action
With respect to the second prong, plaintiff points to the
following instances of adverse employment action: (1) her
termination; (2) defendants handling of her post-termination
grievance procedure; (3) defendants handling of plaintiff's
complaint of discrimination to the OEO; and (4) that Cornell
had opposed her application for unemployment benefits.
Defendants argue that the second, third, and fourth instances
of alleged adverse employment action were reasonable defensive
measures and did not alter the terms or conditions of
plaintiff's employment. The Court finds that all but Cornell's
opposition to her application for unemployment benefits are
sufficient to support the second prong of her prima facie case
of retaliation. Plaintiff's termination unquestionably
constitutes an adverse employment action. See Quinn, 159 F.3d
at 769. Defendants' handling of plaintiff's post-termination
grievance and discrimination complaint could reasonably be
considered to be a continuation of the termination procedure
and related to her efforts to be reinstated. Alternatively,
defendants' post-termination conduct could be found to have a
sufficient nexus to employment to fall within the protection of
Title VII. See Robinson, 519 U.S. 337, 117 S.Ct. 843, 136
L.Ed.2d 808; Durham Life Ins. Co., 166 F.3d at 157; Wanamaker,
108 F.3d at 466; Veprinsky, 87 F.3d at 891. The negative
outcome of these procedures are sufficient to satisfy
plaintiff's de minimis burden of demonstrating adverse