United States District Court, S.D. New York
June 22, 2005.
DEBORAH STROUD, Plaintiff,
NEW YORK CITY; NEW YORK CITY DEPARTMENT OF CORRECTION; BERNARD B. KERIK, Commissioner; LOUIS R. BURGOS, Deputy Commissioner, Equal Employment Opportunity; SHEILA M. VAUGHN, Chief of Custody Management; DAVID GOODMAN, Deputy Warden in Command, Transportation Division; WALTER HAMILTON, Assistant Deputy Warden; JAMES MULLANEY, Captain, Rikers Island Movement Coordinator; and CHRISTINE PARKER, Personnel Manager, Defendants.
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
This litigation arises from the somewhat contentious end of
plaintiff Deborah Stroud's 19-year career with the New York City
Department of Correction ("DOC"). Stroud brings this action
pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and alleges that DOC retaliated against her and
constructively discharged her for bringing an earlier suit
against it for age, gender, and race discrimination. Defendant
City of New York, the sole remaining defendant in this
litigation, has moved for summary judgment in its favor.
As more fully set forth below, that motion is granted with
respect to Stroud's retaliation claim because Stroud failed to
show a causal link between the filing of her earlier suit and
DOC's adverse employment actions, and because Stroud failed to
controvert DOC's legitimate, non-retaliatory reasons for its
actions. In addition, the City's summary judgment motion is granted with respect to Stroud's constructive discharge claim
because Stroud again failed to show a causal link between the
filing of her earlier suit and her purported discharge, and
because the employment conditions she alleges were not
In 1981 Stroud commenced her career as a correction officer in
DOC's Transportation Division. (Def.'s Local Civil Rule 56.1
Statement of Undisputed Facts ("Def.'s Rule 56.1 Statement") ¶
18; Dep. of Deborah Stroud dated Feb. 9, 2004 at 25:5-6, Ex. C to
Def.'s Rule 56.1 Statement). The first event relevant to this
litigation did not occur until 1994 13 years later when
Stroud, while working on Rikers Island, slipped and fell on some
"black ice" and suffered a knee injury. (Letter of Deborah Stroud
to Louis R. Burgos dated Aug. 11, 1999, Pl'.s Affirm. in Opp'n to
Mot. for Summ. J.). Stroud's fall precipitated a gradual slide
into what DOC characterizes as a history of chronic absenteeism.
In 1994 Christine Parker, DOC's personnel supervisor, "formally
counseled and warned" Stroud that she had been "out sick" on
several occasions and that "if this pattern of sick leave use
continued, [Stroud] would be placed in Category A or B pursuant
to DOC Directive 2258R." (Def.'s Rule 56.1 Statement ¶ 57; Memo
from Christine Parker to Deborah Stroud dated Feb. 18, 1994, Ex.
P to Def.'s Rule 56.1 Statement).
DOC Directive 2258R (the "Directive") sets forth DOC's policy
on its employees' use of sick leave and the problem of "chronic
absence." (Directive 2258R, Ex. I to Def.'s Rule 56.1 Statement).
The Directive provides that a person who reports sick on five or
more occasions during a twelve-month period "shall be classified
in Category A and notified . . . in writing of the
classification." (Id. at 1). A person who reports sick either
on six or more occasions or on twelve or more days during a
twelve-month period "shall be classified in Category B." (Id.
at 2). An employee designated as Category A or B "may lose certain
discretionary benefits and privileges, which include, (a)
assignment to a steady tour; (b) assignment to a specified post;
[and] (c) access to voluntary overtime." (Def.'s Rule 56.1
Statement ¶ 38). A DOC employee has a "specified" or "steady"
post when she receives the same assignment every day. (Id. ¶
39; Stroud Dep. at 85:3-16, Ex. C to Def.'s Rule 56.1 Statement).
Similarly, an employee has a "steady tour" when she works either
days or nights exclusively. (Def.'s Rule 56.1 Statement ¶ 39;
Stroud Dep. at 85:3-16, Ex. C to Def.'s Rule 56.1 Statement).
Once an employee is designated as Category A or B, the
designation remains in effect for six months; if the employee is
not absent during that six-month period, then DOC removes the
designation. (Def.'s Rule 56.1 Statement ¶ 36).
Despite the warning from DOC, Stroud's absences continued. One
year later, DOC again warned her that because she had been absent
on three additional occasions for seven days she risked being
designated either Category A or B unless her absences ceased.
(Id. ¶ 58; Memo from Christine Parker to Deborah Stroud dated
Apr. 6, 1995, Ex. P to Def.'s Rule 56.1 Statement). Six months
later, however, DOC again warned Stroud that she had been absent
yet an additional three times for eight more days, and that she
risked a Category A or B designation. (Def.'s Rule 56.1 Statement
¶ 59; Memo from Christine Parker to Deborah Stroud dated Sept.
18, 1995, Ex. P to Def.'s Rule 56.1 Statement). Four months later
DOC informed Stroud that she had been absent three more times for
four days, and warned her for a fourth time that if the pattern
continued, DOC would designate her either Category A or B.
(Def.'s Rule 56.1 Statement ¶ 60; Memo from Christine Parker to
Deborah Stroud dated Jan. 18, 1996, Ex. P to Def.'s Rule 56.1
Statement). In August of 1997 one and a half years after Stroud's fourth
warning concerning her use of sick leave she filed Stroud v.
New York City Department of Correction, et al., 97 Civ. 6750
("Stroud I"), in which she alleged that DOC discriminated
against her because of her age, gender, and race. In the instant
action, Stroud contends that DOC retaliated against her and
constructively discharged for filing the 1997 suit.
Stroud's absences continued and eight months later DOC
designated her "chronic absent Category B." (Def.'s Rule 56.1
Statement ¶ 54; Designation of Chronic Absent Category B dated
Apr. 24, 1998, Ex. O to Def.'s Rule 56.1 Statement). DOC informed
her in writing that due to her designation, she ran the risk of
losing her steady tour, steady post, and the opportunity to work
voluntary overtime. (Memo from Clyton Eastmond to Deborah Stroud
dated Apr. 23, 1998, Ex. O to Def.'s Rule 56.1 Statement).
Stroud appealed her designation to DOC's Health Management
Division, asserting that her absences stemmed from a second
work-related injury that she sustained during a car accident in
1997. (Def.'s Rule 56.1 Statement ¶ 55; Category B Appeal dated
May 1, 1998 & Memo from Mortessa Gibbs to Clyton Eastmond dated
June 17, 1998 Ex. O to Def.'s Rule 56.1 Statement). Because a
work-related injury caused her to be absent, Stroud claimed,
those absences did not accumulate toward a Category A or B
designation. (Def.'s Rule 56.1 Statement ¶ 55). However, in June
of 1998 DOC rejected this view and denied her appeal. (Memo from
Clyton Eastmond to Absence Control Coordinator dated May 14,
1998, Ex. O to Def.'s Rule 56.1 Statement).
Six months later and 16 months after she filed Stroud I
Stroud had surgery on the knee she injured on Rikers Island in
1994. (Def.'s Rule 56.1 Statement ¶ 19). Although she was
hospitalized for only three days in March of 1999, she was absent
from work for five months from mid-December of 1998 until mid-May of 1999. (Id. ¶¶ 19-20;
Letter from Irma Jacqueline Ozer, Esq. to Deborah Stroud dated
Oct. 12, 1999, Ex. N to Def.'s Rule 56.1 Statement). Stroud
eventually returned to work on May 15, 1999, almost two years
after she filed Stroud I.
While Stroud was absent from work, DOC circulated to all
Transportation Division personnel a memo dated April 13, 1999
that set forth the division's policy with respect to medically
monitored correction officers. (Memo from David Goodman to
Transp. Div. Pers. dated Apr. 13, 1999, Ex. H to Def.'s Rule 56.1
Statement). The memo provided that, "Effective April 25, 1999,
all medically monitored correction officers will be assigned to a
4 × 2 squad for the duration of their medically monitored
status. 5 × 2 assignments at transportation will only be filled
by full duty officers in order to maximize personnel staffing of
the primary mission of court delivery and support." (Id.).
The terms "4 × 2" and "5 × 2" refer to the number of
consecutive days a correction officer works and the number of
consecutive days the officer has off. (Def.'s Rule 56.1 Statement
¶ 25; Stroud Dep. at 59:15-25, Ex. C to Def.'s Rule 56.1
Statement). For example, a 5 × 2 assignment requires a
correction officer to work for five consecutive days, followed by
two consecutive days off. If a correction officer is given a 5 ×
2 assignment, the days of the week that she has off remain fixed.
However, when an officer is given a 4 × 2 assignment, the days
that she has off will vary each week; this rotating schedule of
days off is known as "the wheel." (Def.'s Rule 56.1 Statement ¶
26; Stroud Dep. at 41:25-42:9, Ex. C to Def.'s Rule 56.1
Upon Stroud's return to work, a DOC physician examined her,
determined that she had "serious physical/psychological
limitations," and placed her on "Medically Monitored Returned
Duty Status." (Def.'s Rule 56.1 Statement ¶¶ 20-21; Medically
Monitored Return Restriction Form dated May 7, 1999, Ex. G to
Def.'s Rule 56.1 Statement). In the "medically monitored return restriction form," the doctor noted that Stroud could not
work overtime and did not require a steady tour. (Medically
Monitored Return Restriction Form dated May 7, 1999, Ex. G to
Def.'s Rule 56.1 Statement). Because of her medically monitored
designation, Stroud was placed on the wheel pursuant to the April
13 memo, but within "a couple of weeks" she returned to full
time, 5 × 2 assignments. (Def.'s Rule 56.1 Statement ¶¶ 27-28;
Stroud Dep. at 114:5-19, Ex. C to Def.'s Rule 56.1 Statement).
In addition, upon Stroud's return to work, for the second time
DOC designated her a Category B chronically absent employee.
(Def.'s Rule 56.1 Statement ¶¶ 40-44). DOC informed Stroud in
writing that she was subject to the denial or revocation of her
"steady assignment and/or tour of duty" and the opportunity to
"perform? voluntary overtime." (Def.'s Rule 56.1 Statement ¶¶
40-44; Memo from David Goodman to Deborah Stroud dated May 19,
1999, Ex. K to Def.'s Rule 56.1 Statement). Indeed, Stroud stated
that she knew that DOC could withdraw any one of those benefits
from her because of her Category B designation. (Stroud Dep. at
137:12-138:4, Ex. C to Def.'s Rule 56.1 Statement).
Stroud appealed her designation within DOC, again arguing that
because her absences resulted from a line-of-duty injury, they
did not count toward a Category A or B designation; however,
DOC's deputy warden in command denied Stroud's appeal. (Def.'s
Rule 56.1 Statement ¶¶ 45-49; Memo from David Goodman to Absence
Control Coordinator dated June 14, 1999, Ex. L to Def.'s Rule
56.1 Statement). In July, DOC placed Stroud back on a 4 × 2
assignment. (Def.'s Rule 56.1 Statement ¶¶ 52-53).
In August, Stroud retired from DOC after 19 years in its
employ. (Def.'s Rule 56.1 Statement ¶ 53). She left because she
was "fed up" with "all the different things that happened to
[her]. . . ." (Id. ¶ 63). She "felt that [she] should not go on
the wheel, lose the overtime, [and have her steady] post taken away. . . ." (Id.). Due to 37 days
of "terminal leave," Stroud remained on the payroll until
December 13; her retirement became effective the next day.
(Letter from Alan Vengersky to Deborah Stroud dated Nov. 10,
1999, Ex. Q to Def.'s Rule 56.1 Statement). Since retiring,
Stroud has collected a monthly pension. (Def.'s Rule 56.1
Statement ¶ 66; Retirement Resolution dated Oct. 19, 2000, Ex. S
to Def.'s Rule 56.1 Statement).
II. The Complaint and Procedural History
By the time Stroud commenced this action in January of 2000,
the City had filed a summary judgment motion in Stroud I
seeking judgment in its favor. Because the complaints in both
actions set forth very similar allegations and legal theories,
Magistrate Judge Eaton, who was handling the general pre-trial
management of both Stroud actions, stayed all proceedings in
this action until determination of the summary judgment motion in
Stroud I. (See Mem. and Order of Judge Douglas F. Eaton dated
Apr. 7, 2000).
Judge Eaton then issued a Report and Recommendation in which he
concluded that this Court should grant defendant's summary
judgment motion in Stroud I and order Stroud to show cause why
the complaint in this action should not be dismissed as well.
(See Report and Recommendation of Judge Douglas F. Eaton dated
Sept. 20, 2000). This Court ultimately adopted Judge Eaton's
Report and Recommendation, granting summary judgment for
defendants in Stroud I and ordering Stroud to show cause why
the Court should not dismiss this action as well. (See Order
dated Nov. 28, 2000). After receiving her response, this Court
concluded that she had shown cause for why her retaliation claim
against the City of New York should proceed. (See Order dated
Oct. 1, 2003). However, the Court dismissed her claims against
the individual defendants and the Department of Correction on the
grounds that Title VII claims may not proceed against individuals and that the Department of
Corrections was not a separate juridical entity. (Id.).
The surviving claims two claims for relief pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
against the City of New York were for retaliation and
constructive discharge. Stroud asserts that DOC retaliated
against her in several different ways for filing Stroud I.
Specifically, Stroud claims that DOC withdrew her "steady post,"
"steady tour," and "steady pass days"; that DOC placed her on a
"rotating scheduling without proper notification"; and that DOC
"denied [her] the opportunity to work overtime," which resulted
in a reduction in her pension. In addition, Stroud claims that
she "was forced into early retirement to preserve the pension
benefits that [she] had already earned."
Judge Eaton ordered that any dispositive motions were to be
served and filed by April 23, 2004. (See Scheduling Order of
Judge Douglas F. Eaton dated Dec. 22, 2003). That deadline was
first extended to July 1 and then to August 16. (See
Memo-endorsed Letter of Rippi Gill to Judge Douglas F. Eaton
dated May 25, 2004). However, by mid-July after the close of
discovery Stroud had not yet responded to all of defendant's
discovery requests and instead asked for another extension of 60
days in which to respond. Judge Eaton granted the request and
extended the deadline for plaintiff to provide discovery to
September 15 and the deadline for dispositive motions to October
15. (See Mem. and Order of Judge Douglas F. Eaton dated July
Despite the numerous extensions granted to Stroud, by September
15 she still had not provided the requested discovery to
defendant. Judge Eaton issued an order in which he yet again
extended the deadline for Stroud to provide discovery to
September 29, and the deadline for dispositive motions to
November 15. (See Mem. and Order of Judge Douglas F. Eaton
dated Sept. 28, 2004). Judge Eaton notified Stroud that "her failure to
comply with any order of our Court may result in the dismissal of
her complaint with prejudice" pursuant to Fed.R.Civ.P. 41(b).
(Id. at 2). He also set forth that she was subject to a $50
fine for each day that she failed to comply with the discovery
deadline. (Id. at 2). The following day, Stroud asked that an
attorney be appointed to represent her and that the action be
stayed until an attorney was appointed. (See Order of Douglas
F. Eaton dated Oct. 4, 2004 at 1). Judge Eaton denied both
requests, and again ordered Stroud to comply with his earlier
Nonetheless, by the end of October, Stroud still had not
provided the requested discovery. Judge Eaton once again ordered
Stroud to provide the City of New York with the discovery it had
requested, again warned her that he would recommend dismissal of
her complaint if she failed to comply, and again provided that
she would be subject to a fine of $50 for each day that she
failed to comply. (See Order of Judge Douglas F. Eaton dated
Oct. 26, 2004). Last, Judge Eaton yet again extended the deadline
for dispositive motions to December 15. (Id. at 2). On that
date, the City of New York served this summary judgment motion
upon Stroud. (See Letter of Rippi Gill, Esq. to Judge Douglas
F. Eaton dated Dec. 22, 2004).
Pursuant to Local Rule 56.2, the City's moving papers included
a "Notice to Pro Se Litigant Opposing Motion for Summary
Judgment" that explained that Stroud's claims "may be dismissed
without a trial" if she did not respond to defendant's motion.
(See Notice to Pro Se Litigant Opposing Motion for Summary
Judgment ¶ 1). It further provided that she "must submit
evidence, such as witness statements, or documents, countering
the facts asserted by Defendant and raising issues of fact for
trial," (id. ¶ 2), and that if Stroud did "not respond to
Defendant's motion for summary judgment in a timely fashion with
affidavits or documentary evidence contradicting the facts asserted by the defendants, the
Court may accept Defendant's factual assertions as true." (Id.
Upon request, this Court extended Stroud's deadline to submit
her response to the City's motion and notified Stroud that, "If
no responsive papers are filed by March 18, the motion will be
decided on the basis of the motion papers." (See Memo-endorsed
Letter of Deborah Stroud to the Court dated Feb. 18, 2005). The
Court later extended that deadline to April 15 and again notified
Stroud that the "claims in the complaint may be dismissed without
a trial if plaintiff does not respond with sworn affidavits or
other papers as set forth in Fed.R.Civ.P. 56(e) and the
`Notice to Pro Se Litigant Opposing Motion for Summary
Judgment. . . ." (See Order dated Mar. 24, 2005).
On March 25, the Court received Stroud's "Affirmation in
Opposition to Motion for Summary Judgment" with exhibits, as well
as Stroud's "Supplemental Affirmation in Opposition to Motion for
Summary Judgment," also with exhibits. In addition, on April 15,
2005, the Court received a letter from Stroud along with more
exhibits. However, none of Stroud's submissions contained a
memorandum of law or a counter statement of material facts
pursuant to Local Civil Rule 56.1.
A. The Summary Judgment Standard
Summary judgment is appropriate only if the evidence shows that
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Allen v. Coughlin,
64 F.3d 77, 79 (2d Cir. 1995); LaFond v. Gen. Physics Serv., Corp.,
50 F.3d 165, 171 (2d Cir. 1995). In determining whether a genuine
issue of material fact exists, the Court "is to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary
judgment is sought." Patterson v. County of Oneida,
375 F.3d 206, 219 (2d Cir. 2004); see LaFond, 50 F.3d at 171.
However, the nonmoving party "may not rely on mere conclusory
allegations or speculation, but instead must offer some hard
evidence" in support of its factual assertions. Patterson,
375 F.3d at 219 (quoting D'Amico v. City of New York, 132 F.3d 145,
149 (2d Cir. 1998)). Specifically, to defeat the City's summary
judgment motion, Stroud must show that "there is sufficient
evidence favoring [her] for a jury to return a verdict for
[her]." Golden Pacific Bancorp v. F.D.I.C., 375 F.3d 196, 200
(2d Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal
quotation marks omitted).
In addition, when a non-moving party fails to respond to a
summary judgment motion by submitting a counter statement of
material facts pursuant to Local Civil Rule 56.1, the Court deems
admitted the moving party's statement of material facts. See
Local Civil Rule 56.1(c); LaSane v. Hall's Security Analyst,
Inc., 239 F.3d 206, 210-11 (2d Cir. 2001); Gitlow v. United
States, 319 F.Supp.2d 478, 480 (S.D.N.Y. 2004); Gadsen v. Jones
Lang Lasalle Americas, Inc., 210 F.Supp.2d 430, 438 (S.D.N.Y.
2002) (collecting cases). In this instance, because Stroud has
failed to proffer a counter statement of material facts despite
two explicit notices setting forth the necessity and method of
responding to this motion and numerous extensions of time in
which to respond properly, the Court takes as true all the
assertions set forth in the City's Local Civil Rule 56.1
Statement of Undisputed Facts.
B. The Standards that Govern Title VII Retaliation Claims Title VII prohibits an employer from discriminating against an
employee because she has "opposed any practice made an unlawful
employment practice by this subchapter. . . ."
42 U.S.C. § 2000e-3(a). The Court evaluates Title VII retaliation claims
pursuant to the tripartite burden shifting framework established
in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). "In the context of a motion for summary
judgment, the plaintiff must first demonstrate a prima facie case
of retaliation. . . ." Richardson v. Dep't of Corr. Serv.,
180 F.3d 426, 443 (2d Cir. 1999); see also Cifra v. Gen. Elec.
Co., 252 F.3d 205, 216 (2d Cir. 2001). In order to establish her
prima facie case, the plaintiff must demonstrate "(1)
participation in a protected activity that is known to the
defendant, (2) an employment decision or action disadvantaging
the plaintiff, and (3) a causal connection between the protected
activity and the adverse employment decision." Richardson,
180 F.3d at 443; see also Cifra, 252 F.3d at 216; Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998).
A plaintiff may establish the requisite causal connection
either directly or indirectly. A plaintiff may establish
causation indirectly by showing "that the protected activity was
followed closely by discriminatory treatment." DeCintio v.
Westchester County Med.Ctr., 821 F.2d 111, 115 (2d Cir. 1987);
see also Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (per curiam);
Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991).
In addition, the plaintiff may show causation indirectly
"through other evidence such as disparate treatment of fellow
employees who engaged in similar conduct." DeCintio,
821 F.2d at 115; see also Johnson, 931 F.2d at 207. The plaintiff also
may satisfy the causation requirement directly through "evidence
of a retaliatory animus directed against plaintiff by defendant."
DeCintio, 821 F.2d at 115; see also Johnson,
931 F.2d at 207. Once the plaintiff has established a prima facie case of
retaliation, the defendant "has the burden of pointing to
evidence that there was a legitimate, nonretaliatory reason for
the complained of action." Richardson, 180 F.3d at 443; see
also Cifra, 252 F.3d at 216; Quinn, 159 F.3d at 768. Last,
if the defendant meets its burden, then the plaintiff "must point
to evidence that would be sufficient to permit a rational
factfinder to conclude that the employer's explanation is merely
a pretext for impermissible retaliation." Cifra,
252 F.3d at 216; see also Richardson, 180 F.3d at 443; Quinn,
159 F.3d at 768.
C. The Standards that Govern Constructive Discharge Claims
Constructive discharge occurs when the "employer, rather than
discharging [his employee] directly, intentionally creates a work
environment so intolerable that [the employee] is forced to quit
involuntarily." Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d
Cir. 2004) (quoting Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d
Cir. 2003)) (internal quotation marks omitted); see also
Whidbee v. Garzarelli Food Spec., Inc., 223 F.3d 62, 73-74 (2d
Cir. 2000). The immediate focus of a constructive discharge claim
is both the employer's subjective intent and the employee's
objective working conditions. Petrosino, 385 F.3d at 229.
While the plaintiff need not demonstrate that her employer
acted with the specific intent to force her to resign, the
plaintiff "must at least demonstrate that the employer's actions
were deliberate and not merely negligent or ineffective."
Petrosino, 385 F.3d at 229-30 (internal quotation marks and
brackets omitted); see also Whidbee, 223 F.3d at 74; Kader
v. Paper Software, Inc., 111 F.3d 337, 339-40 (2d Cir. 1997).
The Court applies an objective standard in determining whether
an employee's working conditions are "intolerable": "Working
conditions are intolerable when, viewed as a whole, they are so
difficult or unpleasant that a reasonable person in the
employee's shoes would have felt compelled to resign." Petrosino, 385 F.3d at 230 (quoting
Terry, 336 F.3d at 152) (internal quotation marks omitted);
see also Kader, 111 F.3d 340-41; Spence v. Maryland Cas.
Co., 995 F.2d 1147, 1156-57 (2d Cir. 1993); Stetson v. NYNEX
Serv. Co., 995 F.2d 355, 360-61 (2d Cir. 1993); Pena v.
Brattleboro Retreat, 702 F.2d 322, 325-26 (2d Cir. 1983). A
constructive discharge claim will fail when the evidence
demonstrates that the employee merely was "dissatisfied with the
nature of his assignments," Stetson, 995 F.2d at 360; Pena,
702 F.2d at 325, or that the working conditions were merely
"difficult or unpleasant," Stetson, 995 F.2d at 360.
In addition, in order to state a prima facie case of
constructive discharge, the plaintiff must "establish that the
constructive discharge occurred in circumstances giving rise to
an inference" of retaliation. See Terry, 336 F.3d at 152
(internal quotation marks omitted). As with the law applicable to
broader retaliation claims outlined above, the plaintiff may
establish causation either directly or indirectly, the latter
method achieved through proof of disparate treatment or a close
proximity between the protected activity and the purported
D. The City Is Entitled to Summary Judgment with Respect to
Stroud's Retaliation Claim
Defendant asserts two reasons why Stroud's retaliation claim
fails as a matter of law. First, it contends that Stroud failed
to make out a prima facie case of retaliation because she
proffered no evidence upon which a reasonable juror could find
that there was a causal connection between the protected activity
and the adverse employment actions. Second, it urges that even if
Stroud made out a prima facie case of retaliation, the City has
put forth evidence illustrating legitimate, non-retaliatory
reasons for DOC's actions while Stroud offered no evidence from
which a reasonable juror could infer that those reasons were
pretextual. The Court agrees and turns to each of those
1. Stroud Failed to Make Out a Prima Facie Case Stroud asserts that in retaliation for filing Stroud I in
1997, in 1999 DOC withdrew her steady post and steady tour,
suspended her ability to work voluntary overtime, and placed her
on the wheel, and that these actions in turn resulted in her loss
of "comp time" and pension benefits. However, Stroud offers no
evidence of the causal link that is an indispensable component of
her prima facie case; namely, the link between her filing of
Stroud I and her employer's alleged retaliatory actions.
Stroud has offered no direct evidence whatsoever of defendant's
alleged retaliatory animus, and an independent examination of the
record reveals no such evidence. In addition, Stroud has not come
forward with any evidence indirectly illustrating the necessary
causation. Stroud asserts that defendant treated differently
other employees who were situated similarly to her: "As far as I
know, no one else has gotten Category B papers for a surgery
and rehabilitation approved by workers' compensation." (Letter
from Deborah Stroud to the Court dated Feb. 20, 2001 at 2, Pl.'s
Affirm. in Opp'n to Summ. J. (emphasis in original)). However,
Stroud's ipse dixit is insufficient to defeat a motion for
summary judgment, and the record contains no evidence that
supports her assertion of disparate treatment. Mere conclusory
statements are not substitutes for proof.
Finally, the yawning temporal gap between the filing of Stroud
I and the alleged retaliatory conduct cannot give rise to an
inference of causation. Stroud alleges that the retaliation began
when she returned to work in May of 1999 after her surgery the
previous December. However, the protected activity the filing
of Stroud I occurred in August of 1997 almost two years
before the retaliation allegedly commenced. See, e.g.,
Richardson, 180 F.3d at 447 ("This two year gap is too wide to
support the inference that she was terminated in retaliation for
complaining about discrimination. . . ."); Hollander v. Amer.
Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (time span of "several months" not
sufficient, by itself, to raise inference of causation); Carr v.
WestLB Admin., Inc., 171 F.Supp.2d 302, 309-10 (S.D.N.Y. 2001)
(four-month time span precluded inference of causation); Castro
v. Local 1199, Nat'l Health & Human Servs. Employees Union,
964 F.Supp. 719, 729 (S.D.N.Y. 1997) (time span of "over a year" not
sufficient to raise an inference of causation); Zenni v. Hard
Rock Café Intern., Inc., 903 F.Supp. 644, 656 (S.D.N.Y. 1995)
(time span of "more than a year" not sufficient to raise an
inference of causation).
The fact that Stroud was absent from work for approximately
five of the 21 months between the filing of Stroud I and
defendant's alleged retaliation does not alter the calculus;
irrespective of that five-month period, Stroud worked for 16
months after filing Stroud I and claims no retaliation during
that period. Regardless of what may be the "outer limits beyond
which a temporal relationship is too attenuated to establish a
causal relationship," Lovejoy-Wilson v. Noco Motor Fuel, Inc.,
262 F.3d 208, 224 (2001), 16 months is too remote as a matter of
law to support, by itself, an inference of causation.
Hollander, 895 F.2d at 85-86; Carr, 171 F.Supp.2d at 309-10;
Castro, 964 F.Supp. at 729; Zenni, 903 F.Supp. at 656.
In addition, Stroud's absenteeism and DOC's adverse responses
to it began well before Stroud returned to work in May of 1999
after her five-month absence; in fact, as early as 1994 DOC
warned Stroud of the possible adverse consequences of her
continued absences, including Category B designation. Before
Stroud ever filed Stroud I i.e., before she ever engaged in
the protected activity she had been warned four times that
continued absences would result in the deprivation of her steady
post, steady tour, and the opportunity to work voluntary
overtime. Because the "adverse employment actions were both part,
and the ultimate product, of `an extensive period of progressive
discipline," beginning prior to the protected activity, Stroud cannot make out a prima facie case with respect to causation.
Slattery v. Swiss Reins. Amer. Corp., 248 F.3d 87, 95 (2d Cir.
2001) ("Where timing is the only basis for a claim of
retaliation, and gradual adverse job actions began well before
the plaintiff had ever engaged in any protected activity, an
inference of retaliation does not arise."). Accordingly, the
Court concludes that Stroud failed to adduce evidence upon which
a reasonable juror could determine that the filing of Stroud I
caused DOC to take adverse job actions against her.
2. Defendant Offered a Legitimate, Non-retaliatory Basis for
Its Actions, and Stroud Offered No Evidence of Pretext
Even assuming that Stroud satisfied the requirements of her
initial burden, DOC amply demonstrated legitimate reasons for
taking adverse employment actions against her. Specifically,
defendant produced evidence that it based its actions vis-à-vis
Stroud upon generally applicable policies setting forth both
penalties for chronic absenteeism and job restrictions for
employees who have physical limitations. Confronted with this
evidence, Stroud failed to come forth with any evidence even
arguably demonstrating that these proffered explanations were
merely pretextual. Again, an independent examination revealed
that there is no evidence in this record that DOC's explanations
for its employment actions were pretexts for discrimination.
Specifically, defendant pointed to (1) the Directive, which set
forth the categories of chronically absent employees and the
applicable penalties, including the loss of a steady post, a
steady tour, and access to voluntary overtime; (2) its numerous
warnings to Stroud prior to the filing of Stroud I, which
alerted her that she risked a Category B designation; and (3) its
first designation of Stroud as a Category B chronically absent
employee, which was not part of the retaliation that Stroud
alleges. In addition, defendant pointed to the April 13, 1999 memo,
which contains its policy that all medically monitored personnel
would be placed on the wheel. Defendant further adduced the
physician's designation of Stroud as having "serious
physical/psychological limitations" that required her to be
placed upon medically monitored returned duty status, and hence,
to be placed upon the wheel. All of this evidence, taken
together, establishes a legitimate, non-retaliatory basis for
defendant's actions and thus satisfies its burden pursuant to the
second step of the McDonnell Douglas framework.
In response to the evidence illustrating the legitimate basis
for DOC's actions, Stroud offered no evidence that DOC's
proffered reasons were pretextual. Because Stroud offered no such
evidence, and because the record contains no such evidence, the
Court concludes that no reasonable juror could determine that the
explanation defendant advances was pretextual.
In sum, the Court grants the City's motion for summary judgment
with respect to Stroud's Title VII retaliation claim because (1)
Stroud failed to make out a prima facie case of retaliation since
she cannot demonstrate a causal link between the filing of
Stroud I and defendant's adverse employment actions, and (2)
defendant offered a legitimate basis for its actions, while
Stroud offered no evidence that this basis was pretextual.
E. The City Is Entitled to Summary Judgment with Respect to
Stroud's Constructive Discharge Claim
The City urges two reasons why the Court should grant it
summary judgment on Stroud's constructive discharge claim. First,
it asserts that Stroud offered no evidence supporting the
existence of a causal link between the filing of Stroud I and
the creation of allegedly intolerable employment conditions.
Second, it claims that the evidence establishes as a matter of
law that Stroud's working conditions were not so intolerable that
a reasonable person in Stroud's position would have been compelled to resign. Here too, the Court agrees
with the City and now turns to each of those contentions.
1. Stroud Failed to Establish an Inference of Causation
For the reasons set forth above concerning Stroud's failure to
establish an inference that her filing of Stroud I caused DOC
to retaliate against her, Stroud has similarly failed to
demonstrate "the requisite causal connection between the
purported discharge and her filing of . . . the federal lawsuit."
Richardson, 180 F.3d at 447; see also Terry,
366 F.3d at 152. Here, Stroud filed Stroud I in August of 1997, and she
claims she was constructively discharged two years later, in
August of 1999. Thus, here, just as in Richardson, "[t]his two
year gap is too wide to support the inference that she was
terminated in retaliation for complaining about
discrimination. . . ." Richardson, 180 F.3d at 447.
Accordingly, Stroud's constructive discharge claim fails as a
matter of law.
2. Stroud's Employment Conditions Were Not Intolerable
The record also establishes that Stroud's working conditions
were not the type of intolerable environment required to support
a constructive discharge claim. Due to her Category B
designation, Stroud lost the benefits of working the same
assignment every day, working the same hours every day, and
working voluntary overtime hours. Due to her medically monitored
returned duty status, Stroud lost the benefit of a 5 × 2
schedule and instead worked a 4 × 2 schedule.
Stroud also claims that the modified employment conditions cost
her "comp time" and threatened to reduce her pension benefits. As
to her claim of lost comp time, Stroud offers no explanation of
what comp time is, or how she allegedly lost any of it. As to her
claim of reduced pension benefits, Stroud asserts that her
pension was scaled to the last three years of her salary. Her inability to work voluntary overtime caused her salary to
diminish and her diminished salary, in turn, would result in a
diminished pension. In order to prevent this erosion of her
pension, Stroud claims, she was forced to resign.
However, Stroud has not presented any evidence establishing
that the last three years of her salary would indeed determine
the level of her pension benefits. Even assuming that this
assertion is true, Stroud has not presented any evidence
demonstrating the extent to which her pension benefits would have
been reduced had she continued working.
Moreover, when analyzed together, the employment restrictions
she asserts are not so objectively unreasonable that Stroud had
no other choice but to resign. Stroud may have been "dissatisfied
with the nature of [her] assignments," Stetson,
995 F.2d at 360; Pena, 702 F.2d at 325, and her working conditions may have
been somewhat "difficult or unpleasant," Stetson,
995 F.2d at 360, but these circumstances are by no means "so intolerable that
[Stroud was] forced to quit involuntarily," Petrosino,
385 F.3d at 229 (quoting Terry, 336 F.3d at 151-52) (internal quotation
In addition, the conditions of which Stroud complains were
fleeting. Stroud's Category B designation could last only for six
months if she was not absent from work within that time period;
Stroud was placed on the wheel for mere weeks. Apart from the
manner in which the brevity of the conditions mitigated their
impact, their transient nature also provided Stroud with an
option separate from resigning: she could have waited a short
time for the conditions to abate. Stroud thus "has not
demonstrated that quitting was the only way out of her . . .
dilemma." Petrosino, 385 F.3d at 231; see also Spence,
995 F.2d at 1157 ("The record reveals that Spence had a quite
effective alternative to resignation."). Therefore, the Court grants the City summary judgment on
Stroud's claim of constructive discharge because (1) Stroud
failed to produce evidence upon which a reasonable juror could
find that the filing of Stroud I caused the City to
constructively discharge her two years later; and (2) Stroud
failed to produce evidence upon which a reasonable juror could
conclude that her working conditions were so intolerable that she
was forced to resign.
As more fully set forth above, the City's summary judgment
motion is granted with respect to Stroud's retaliation claim
because (1) Stroud failed to show a causal link between the
filing of her earlier suit and DOC's adverse employment actions
and (2) Stroud failed to controvert DOC's legitimate,
non-retaliatory reasons for its actions. In addition, the City's
summary judgment motion is granted with respect to Stroud's
constructive discharge claim because (1) Stroud again failed to
show a causal link between the filing of her earlier suit and her
purported discharge and (2) the employment conditions she alleges
were not objectively intolerable. Accordingly, the Clerk of Court
shall enter judgment dismissing the complaint.
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