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Setelius v. National Grid Electric Services LLC and Hank Delach

United States District Court, E.D. New York

September 24, 2014

LOUISE SETELIUS, Plaintiff,
v.
NATIONAL GRID ELECTRIC SERVICES LLC and HANK DELACH, in his official and individual capacities, Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Louise Setelius brings this action against Defendants National Grid Electric Services LLC ("National Grid") and Hank Delach, alleging claims of gender discrimination, retaliation and creation of a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and violations of the Equal Pay Act, 29 U.S.C. § 206(d). Defendants moved for summary judgment as to all claims. The Court heard oral argument on September 16, 2014. For the reasons set forth below, the Court grants Defendants' motion for summary judgment.

I. Background

a. Plaintiff's work with National Grid and supervision by Delach

Plaintiff began her employment with Long Island Lighting Company, a predecessor to National Grid, in 1986. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) Plaintiff began working as a clerk in the tree trim department, was promoted to work coordinator in 2001, and to field supervisor in 2004. (Def. 56.1 ¶¶ 1-2; Pl. 56.1 ¶¶ 1-2.) At the time Plaintiff was promoted to field supervisor, she did not have a college degree, prior relevant supervisory experience, and had not worked in the field. (Def. 56.1 ¶ 40; Pl. 56.1 ¶ 40.) Her salary was increased by $3, 350 from her base pay of $57, 800 as a work coordinator, based on "merit and market forces." (Def. 56.1 ¶ 42; Pl. 56.1 ¶ 42.)

In or about November 2008, Hank Delach became Plaintiff's supervisor and remained Plaintiff's supervisor until January 2011. (Deposition of Louise Setelius, annexed to Affidavit of Louse Setelius ("Setelius Aff.") as Ex. 1 ("Pl. Dep.") 19:24-20:9.) According to Plaintiff, Delach was "nasty" to her, and would yell and scream at her in front of other employees. ( Id. at 105:2, 106:2-14.) Delach also "criticized, belittled, and nitpicked minor details" about Plaintiff's work on a "near daily basis, " making "baseless" assertions that Plaintiff was "incompetent" and "an idiot, " and that her "work [wa]s all wrong" or she "ha[d]n't done her job." (Setelius Aff. ¶ 7.) During monthly safety meetings, Delach would "single[] out" Plaintiff to make sure the food was there on time, make copies, and "make sure any kind of clerical function" was done, "because... that was [her] job beforehand." (Pl. Dep. 116:19-25.) Delach did not ask male field supervisors to perform these tasks. ( Id. at 116:24-25.) Delach excluded Plaintiff from informal and formal meetings with safety supervisors that male field supervisors attended, and did not update Plaintiff with the decisions made at these meetings, although he updated male field supervisors. (Setelius Aff. ¶ 3.) Delach also did not distribute to Plaintiff the minutes of monthly meetings that were held between management (at Delach's level) and union employees concerning work methods, incidents and accidents, although he emailed the minutes to male field supervisors.[1] ( Id. ¶ 4.)

On March 6, 2009, Delach spoke with Plaintiff about her job performance, criticized Plaintiff's performance and suggested that she apply for a position that would be a demotion. ( Id. ¶ 9.) In February 2009, National Grid posted an internal announcement for a work coordinator position in the Hicksville office, and Plaintiff applied for the position in March 2009. (Def. 56.1 ¶¶ 36-37; Pl. 56.1 ¶¶ 36-37; Pl. Dep. 205:11-12.) According to Plaintiff, she applied for the position, even though it was technically a demotion, because she did not like the way she was being treated by Delach in her field supervisor position. (Pl. Dep. 205:11-207:2; Compl. ¶ 24.) National Grid interviewed a total of 17 candidates, but did not fill the vacancy and instead closed the position. (Def. 56.1 ¶¶ 37, 39; Pl. 56.1 ¶¶ 37, 39.) Plaintiff concedes that the position was closed, but contends that "they moved Paul Turner, " a work coordinator, into the Hicksville office in December 2009. (Pl. Dep. 206:7-13.)

In December 2010, Plaintiff sought permission from Delach to attend a women's conference sponsored by National Grid in Boston, Massachusetts. ( Id. at 91:7-25.) Delach denied Plaintiff permission to attend due to budgetary restrictions. ( Id. at 92:2-17.)

According to Plaintiff, as a result of a medical condition, she was required to see a doctor every three to four months to have her blood drawn. (Setelius Aff. ¶ 6.) The doctor's office was located approximately 30 minutes away from her office, and received patients only during normal business hours. ( Id. ) Delach complained about Plaintiff leaving work to make these doctor's appointments, and asked her to find a doctor located closer to the office. ( Id. ) In contrast, Delach did not complain about another field supervisor, Sal Marinello, when Marinello left work for doctor's appointments approximately twice per month, even though these visits often resulted in Marinello's absence from the office for the entire afternoon. ( Id. ¶¶ 3, 6.) Delach also permitted Marinello to leave early approximately two to three additional times each month to attend to personal business, without comment or reprimand. ( Id. ¶ 6.)

b. Plaintiff's complaints about Delach

In March 2009, Plaintiff spoke with Joe Dwyer, a supervisor in charge of health and safety, and informed him that she "was having problems with" Delach "and the way [she] was being treated." (Pl. Dep. 114:3-8.) Plaintiff told Dwyer, "I had never been treated by any employee in the company like that. I didn't deserve to be treated like that. I was an employee. I was a human being and I was being treated like dirt." ( Id. at 113:4-114:8.) Plaintiff discussed "the way I was spoken to, the way I was yelled at, the way I was yelled at in front of my fellow employees." ( Id. at 115:6-8.)

Plaintiff spoke with Dwyer again in late 2009 or early 2010 about the "same set of circumstances, ... the unnecessary yelling." ( Id. at 119:15-18.) On both occasions Dwyer informed Plaintiff that he would speak with Delach. ( Id. at 118:8-12, 119:21-120:4.)

In mid-2009, Plaintiff "in passing, mentioned" to Rich Hohlman, a vice president in National Grid, that she "was having problems with [her] supervisor." (Setelius Aff. ¶ 14; Pl. Dep. 111:15-112:17.) Hohlman "acknowledged" Plaintiff and Plaintiff did not speak to Hohlman again after that encounter. (Pl. Dep. at 112:4-9.)

c. Conduct of co-workers

According to Plaintiff, on an unspecified date, Paul Mondello, a fellow field supervisor, screamed and yelled at Plaintiff over the telephone in an "unprofession[al]" and "abominable" manner. (Pl. Dep. 196:12-198:4.) Plaintiff called Mondello's supervisor, Pete Zarcone, and said "I'm not going to tolerate this behavior. He is treating me as if I'm some kind of insignificant insubordinate piece of garbage. I'm not going to tolerate it. If I was [a] man, he wouldn't be yelling at me. He feels he could yell at me because I was a woman." ( Id. at 198:4-10.)

Plaintiff states that in September and November 2010, James Luckie, another fellow male field supervisor, told her "I would like to touch your butt, " or "I want to put my hands on your butt." (Setelius Aff. ¶ 15.) In September 2010, Delach, Luckie and another co-worker, Albert Carlon, commented on a female co-worker's breasts in Plaintiff's presence, "Oh, I'd like to see those, " and "I'd like to rub those, " which made Plaintiff uncomfortable.[2] ( Id. ¶ 16.)

d. Installation of underground power lines at Plaintiff's home

According to Plaintiff, in May 2009, Albert Carlon, a work coordinator who supervised the installation of underground electrical lines for National Grid, told Plaintiff that his workers were installing underground electrical lines near her home, and suggested that the lines could be installed at her house if she desired. (Setelius Aff. ¶ 10.) According to Defendants, customers were charged $2, 000 for the installation of underground electrical service at their homes. (Affidavit of Christopher Dorsey, annexed to Defs. Notice of Motion for Summary Judgment at Docket Entry No. 32 ("Dorsey Aff.") ¶ 12.) Plaintiff agreed to have the underground lines installed, and expected that she would receive a bill for the service. (Setelius Aff. ¶ 10.) The underground lines were installed by an independent contractor working on behalf of National Grid, and, according to Plaintiff, she did not have the authority to generate the work order that was required to install the underground lines or to direct the contractor to perform the work. ( Id. )

On or about May 9, 2009, National Grid received an anonymous complaint that Plaintiff used a National Grid contractor to install an underground electrical service at her personal residence, without paying for the installation.[3] (Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8; untitled notes annexed to Setelius Aff. as Ex. 11 ("Investigation Notes") at 4.)[4] National Grid's Standards of Conduct provide that all employees must avoid situations that create "even the appearance of impropriety, " cannot "use their positions [and the] opportunities discovered through their position, and company resources... for personal gain, " and must "protect company resources you work with or are responsible for." (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6; Dorsey Aff. ¶ 8; National Grid Standards of Ethical Business Conduct ("Standards of Conduct"), annexed to Dorsey Aff. as Ex. 1 at 8.)

e. Investigation of underground power lines at Plaintiff's home

In May 2009, Christopher Dorsey, a lead analyst in the National Grid ethics and compliance office, and Kevin McConnell, a lead program manager in the human resources department, commenced an investigation into the allegation. According to the Investigation Notes kept by Dorsey and/or McConnell, a site visit by the Revenue Protection department confirmed that there was an underground electrical service installed at Plaintiff's home, which had not been energized. (Investigation Notes 1.)

In June 2010, Dorsey, and McConnell met with Plaintiff to question her about these allegations. (Dorsey Aff. ¶ 11.) According to Defendants, during the interview Plaintiff admitted to having used a National Grid contractor to install the underground electrical lines, and also admitted that she did not pay for the installation or make inquiries about the bill for the installation. ( Id. ¶ 11.) According to Plaintiff, she told Dorsey and McConnell that she had not sent the crew to her house, that she did not supervise underground crews and did not have the authority to direct the installation. (Pl. 56.1 ¶ 11; Pl. Dep. 37:22-38:14.) Plaintiff told them that Carlon had arranged for the installation of the underground lines. (Def. 56.1 ¶ 13; Pl. 56.1 ¶ 13.) At the end of the meeting, Plaintiff told Dorsey and McConnell that she had thought she was being called into the meeting to discuss Delach's conduct toward her, but the investigators did not respond to this statement. (Pl. 56.1 ¶ 10; Pl. Dep. 42:4-43:5, 52:8-24; Setelius Aff. ¶ 12.)

Dorsey and McConnell subsequently questioned Carlon who denied having any involvement in the installation of the underground power lines in Plaintiff's home. (Dorsey Aff. ¶ 13.) Carlon initially stated that he had not had any discussions with Plaintiff regarding any electrical work at her house, but subsequently recalled that "he did discuss with her the idea of going to underground service, [and] said sure why not go to underground service."[5] (Investigation Notes at 4.) Carlon told Dorsey and McConnell that he did not send a crew to Plaintiff's house or street, and that Plaintiff had access to the independent contractor crews and could divert them. ( Id. ) Carlon also acknowledged that "we do things for employees all the time, " but that "no other employee ha[d] come to him to initiate an underground service." ( Id. ) In a subsequent section titled "Observations, " the author of the Investigation Notes wrote that "Carlon acknowledged that there are certain types of work that is done for employees at their request, perhaps quicker th[a]n it would happen for a customer - transformer replacement, leaning pole, service line relocation." ( Id. at 7.)

Dorsey and McConnell interviewed Plaintiff again in August 2010, during which interview Plaintiff stated that other National Grid employees had underground electrical service installed at their homes. (Dorsey Aff. ¶ 11.) According to Plaintiff, when she "asked if Human Resources spoke with Carlon, who [Plaintiff] had previously indicated had suggested [Plaintiff] have the lines installed at his own home, " Plaintiff was told that "Carlon said [Plaintiff] was a liar.'" (Setelius Aff. ¶ 13.) According to the Investigation Notes, Plaintiff said that she was "99% certain that it was Asplundh [a National Grid contractor] who did the work since they are the only contractor who does this type of work for us, " but that she was not present for the work, did not sign any paperwork, and did not direct a crew to perform the work. (Investigation Notes 5.) Plaintiff again stated that she had a conversation with Carlon about underground service, and that Carlon mentioned that he could get the work done "if someone was going to be over in the area." ( Id. ) Plaintiff believed that when the work was completed she thanked Carlon, that she anticipated getting a bill for the work at some point, and that the underground wiring had never been connected to the home, or "energized." ( Id. at 5-6.) The "Observations" section of the Investigation Notes concluded "[t]he work order process was circumvented; an employee derived a benefit at no cost wherein such benefit is available to the public but only at a cost." ( Id. at 6.)

f. Installation of underground power lines at co-worker's home

According to Plaintiff, during her August 2010 conversation with Dorsey and McConnell, she named Carlon as an employee that Plaintiff was aware had underground lines installed at his home, but was not able to name any other such employees. (Setelius Dep. 56:21-57:6.) According to Dorsey, Plaintiff "refused to provide" the names of any National Grid employee who also had underground electrical service installed at their homes. (Dorsey Aff. ¶¶ 14-15.) As a result, Dorsey and McConnell conducted "spot checks of other management employees who were peers" of Plaintiff, but were unable to substantiate Plaintiff's allegations. (Def. 56.1 ¶¶ 17-18; Dorsey Aff. ¶ 15.) According to the deposition testimony of Richard Romano, [6] when Dorsey and McConnell provided him with an update regarding the investigation in late 2010 or early 2011, Romano learned that Carlon was investigated because he had an underground electrical service at his home, and "he was referred to somewhere in the investigation" of Plaintiff. (Deposition of Richard Romano, annexed to Setelius Aff. as Ex. 3 ("Romano Dep.") 20:3-23.) According to Dorsey, during the course of the investigation "it came to [their] attention that another employee, Albert Carlon, also had an underground electrical service at his residence." (Reply Affidavit of Christopher Dorsey, annexed to Def. Notice of Motion at Docket Entry No. 41 ("Dorsey Reply Aff.") ¶ 3.) National Grid commenced an investigation in or about late 2010 to determine whether Carlon had violated National Grid ethics policy. ( Id. ¶ 4.) The investigation revealed that Carlon had two separate underground electrical services installed at his residence, one that supplied electricity to the main house, and a separate one that supplied a "cabana" on the property. ( Id. ¶ 5.) Carlon admitted to internal investigators that he had an underground electrical service installed at his residence, but stated that no National Grid crews or contractors were used to install either of the services, and that he had installed the underground service himself with a personal friend and family member. ( Id. ¶ 7.) Carlon explained that "he had used a private electrician not affiliated with the Company to install the underground service to the cabana." ( Id. ) The National Grid investigation "did not reveal any records or information to dispute Mr. Carlon's explanation regarding the manner in which the underground services at his residence were installed." ( Id. ¶¶ 7-8.) As a result of their investigation, National Grid concluded that Carlon had not violated any company ethics policies. ( Id. ¶ 9.)

g. Plaintiff's termination

As a result of their investigation into Plaintiff, Dorsey and McConnell concluded that Plaintiff had violated the company's Standards of Conduct by using a National Grid contractor to install an underground electrical service at her home without paying for the installation. (Def. 56.1 ¶ 19; Pl. 56.1 ¶ 19; Dorsey Aff. ¶ 16.) Dorsey and McConnell advised Thomas Beisner, the Director of Electrical Service for National Grid, and Richard Romano of their conclusion. (Def. 56.1 ¶ 20; Pl. 56.1 ¶ 20; Dorsey Aff. ¶ 16.) Beisner and Romano determined that Plaintiff's conduct constituted a serious violation of the company's Standards of Conduct. (Def. 56.1 ¶ 21; Pl. 56.1 ¶ 21.) Beisner and Romano met with Plaintiff on February 10, 2011, and terminated her employment. (Def. 56.1 ¶ 22; Pl. 56.1 ¶ 22.) At the time of her termination, Plaintiff was earning an annual base salary of $91, 960. (Def. 56.1 ¶ 43; Pl. 56.1 ¶ 43.)

II. Discussion

a. Standard of Review

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Bronzini v. Classic Sec., L.L.C., 558 F.Appx. 89, 89 (2d Cir. 2014); Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013); Kwong v. Bloomberg, 723 F.3d 160, 164-65 (2d Cir. 2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). The Second Circuit has cautioned that [w]here an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.'" Taddeo v. L.M. Berry & Co., 526 F.Appx. 121, 122 (2d Cir. 2013) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010)).

b. Discrimination claims against National Grid - Title VII and NYSHRL

Plaintiff claims that National Grid discriminated against her on the basis of gender in violation of Title VII and the NYSHRL.[7] (Compl. ¶¶ 43, 45.) Title VII prohibits an employer from discriminating "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). Thus, "[a]n employment decision... violates Title VII when it is based in whole or in part on discrimination.'" Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008) (quoting Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)).

Title VII discrimination claims are assessed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).[8] See e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253-55 (1981); Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006) (applying burden shifting framework to gender discrimination claim). Under the framework, a plaintiff must first establish a prima facie case of discrimination. Hicks, 509 U.S. at 506; see also Dowrich-Weeks v. Cooper Square Realty, Inc., 535 F.Appx. 9, 11 (2d Cir. 2013); Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). The plaintiff's burden at this stage is "minimal." Holcomb, 521 F.3d at 139 (quoting Hicks, 509 U.S. at 506). If the plaintiff satisfies this initial burden, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Hicks, 509 U.S. at 506-07; Ruiz, 609 F.3d at 492. The defendant's burden "is not a particularly steep hurdle." Hyek v. Field Support Servs., 702 F.Supp. 84, 93 (E.D.N.Y. 2010). It "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 Hicks, 509 U.S. at 509). "If the employer is able to satisfy that burden, the inquiry then returns to the plaintiff, to demonstrate that the proffered reason is a pretext for discrimination." United States v. City of New York, 717 F.3d 72, 102 (2d Cir. 2013). To defeat summary judgment at this stage, "a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus." Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir. 2010); see also Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S.Ct. 2517, 2522-23 (2013) ("An employee who alleges status-based discrimination under Title VII... [must] show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision.").

i. Prima Facie Case

To establish a prima facie case of gender discrimination under Title VII, a plaintiff must show that: "(1) [s]he belonged to a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); see also Mills v. S. Conn. State Univ., 519 F.Appx. 73, 75 (2d Cir. 2013); Ruiz, 609 F.3d at 491-92. National Grid does not dispute that Plaintiff is a member of a protected class as a woman, or that her termination is an adverse employment action. ( See Def. Mem. 6.) The parties dispute whether other employment actions complained of by Plaintiff are adverse employment actions, and whether Plaintiff's termination occurred under circumstances giving rise to an inference of discrimination.

1. Adverse employment action

Plaintiff argues that, in addition to her termination, "the totality of [other] actions [by National Grid] combine to create an atmosphere of adverse action." (Pl. Opp'n Mem. 10.) National Grid argues that Plaintiff has not met her burden to show that the minor incidents cited by Plaintiff comprise an adverse employment action when viewed together. (Def. Reply 7-8.)

The Second Circuit has made clear that "[a]n adverse employment action is a materially adverse change in the terms and conditions of employment." Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008). Such action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Brown, 673 F.3d at 150 (quoting Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006)). "Examples of materially adverse employment actions include 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." Feingold, 366 F.3d at 152 (alteration, citation and internal quotation marks omitted).

The question of whether a plaintiff may aggregate seemingly minor incidents to show an adverse employment action for a Title VII claim has not been addressed by the Second Circuit.[9] However, even assuming that the Court can consider the aggregate of individually non-adverse actions in determining whether Plaintiff suffered an adverse employment action for purposes of her Title VII or her NYSHRL claim, the aggregate of the actions alleged by Plaintiff do not amount to a materially adverse employment action.

Plaintiff argues that the following actions, when considered collectively, comprise a materially adverse employment action for purposes of her gender discrimination claim: (1) the ostracizing of Plaintiff by Delach, (2) Delach's excluding Plaintiff from meetings, (3) Delach assigning Plaintiff to clerical duties, and (4) Delach criticizing Plaintiff for attending medical appointments. (Pl. Opp'n Mem. 10.) The Court also considers Delach's yelling at Plaintiff and his "criticiz[ing], belittl[ing] and nitpick[ing] minor details" about Plaintiff's work "on a near daily basis, " which were asserted by Plaintiff in her Affidavit but not addressed by Plaintiff in her opposition brief. (Setelius Aff. ¶¶ 7-9.)

These actions, even when considered in the aggregate, lack the requisite level of material impact required to establish an adverse employment action for purposes of a gender discrimination claim. Plaintiff has not pointed to evidence of any material impact of these actions, such as evidence that that she suffered a loss of prestige, an impact to her reputation, the loss of an opportunity for a promotion, negative evaluations that affected or could have affected opportunities to receive raises or promotions, or any action equivalent to a demotion or a material increase in her workload.[10] See Bowen-Hooks, ___ F.Supp.2d at ___, 2014 WL 1330941, at *24 ("Plaintiff speculates about how various actions could have affected her career. However, she has not presented any evidence that it actually did so, such as showing that she applied for and was denied a promotion to the next level in her department, or that, other than having to complete occasional undesirable tasks, she experienced some action equivalent to a demotion, or a material increase in her work load."); cf. Bass, 256 F.3d at 1118 (plaintiff who "was not given the same duties as the other Training Instructors..., given no routine work assignments and was forced to perform custodial and clerical duties under the supervision of less senior personnel, ... denied... the opportunity to earn overtime pay, on-call pay, riding-out-of classification pay, and adjunct teaching pay, which were available to other Training Instructors.... [and] ordered to take tests to maintain his paramedic pay while none of the other Training Instructors were required to do so" experienced adverse employment action for purposes of a pre- Burlington retaliation claim when these actions were considered collectively), overruled in part on other grounds by Burlington Northern, 548 U.S. at 68. While Plaintiff asserts that her exclusion from meetings resulted in "not [being] made aware of important safety information necessary to perform my job functions, " (Setelius Aff. ¶ 3), Plaintiff has not elaborated on how this missing information affected her job, if at all. Similarly, while Plaintiff argues that her application for a work coordinator position was denied in 2009, she concedes that the word coordinator position would have been a demotion rather than a promotion and, in any event, that the position was eliminated before it was filled. (Pl. Opp'n Mem. 4.)

Plaintiff relies on retaliation cases that have articulated a more inclusive standard for determining whether an employment action is "adverse." (Pl. Opp'n Mem. 10-11 ("An accumulation of seemingly minor incidents' may combine to establish an atmosphere of adverse employment action.'" (quoting Wallace v. Suffolk Cnty. Police Dep't, 396 F.Supp.2d 251, 259 (E.D.N.Y. 2005) and Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002))).) However, Phillips and Wallace addressed First Amendment retaliation claims, and the standard for establishing an adverse action in a First Amendment retaliation claim is more inclusive than the standard of "materially adverse change in the terms and conditions of employment" which is required in Title VII discrimination claims.[11] In Phillips, the Second Circuit held that "a combination of seemingly minor incidents [may] form the basis of a constitutional retaliation claim once they reach a critical mass." Phillips, 278 F.3d at 109; see also Wallace, 396 F.Supp.2d at 259 ("[A]n accumulation of seemingly minor incidents' may combine to establish an atmosphere of adverse employment action, ' sufficient to allege a [First Amendment] retaliation claim." (quoting Phillips, 278 F.3d at 109)). Because these cases were decided under the more inclusive standard of First Amendment retaliation, [12] the Court declines to apply their "atmosphere" theory to Plaintiff's claim of discrimination.[13]

While National Grid's actions may have contributed to an unpleasant work environment, absent a connection to a material loss in pay, promotion, opportunity, prestige, reputation or workplace accomplishments, or some similar actions, these actions, even viewed collectively, are insufficient to comprise a materially adverse employment action. Therefore, Plaintiff's only adverse employment action is the termination of her employment.

2. Inference of Discrimination

Plaintiff argues that an inference of discrimination can be drawn because the investigation National Grid conducted into the installation of the underground electrical wires at Plaintiff's residence "was a sham, " with several inconsistencies, and because National Grid treated Plaintiff differently, as compared to similarly-situated male co-workers, by terminating her for installing the underground electrical service. (Pl. Opp'n Mem. 14-15.) National Grid argues that Plaintiff cannot raise an inference of discrimination with respect to her termination, as National Grid terminated Plaintiff "because it reasonably believed that she had violated the Company's Standards of Conduct." (Def. Mem. 7.)

Inference of discrimination "is a flexible [standard] that can be satisfied differently in differing factual scenarios.'" Howard v. MTA Metro-N. Commuter R.R., 866 F.Supp.2d 196, 204 (S.D.N.Y. 2011) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)). "No one particular type of proof is required to show that Plaintiff's termination occurred under circumstances giving rise to an inference of discrimination." Moore v. Kingsbrook Jewish Med. Ctr., No. 11-CV-3625, 2013 WL 3968748, at *6 (E.D.N.Y. July 30, 2013) (citations omitted). An inference of discrimination can be drawn from circumstances such as "the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's [adverse employment action], " Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (citation omitted), or by "showing that an employer treated [an employee] less favorably than a similarly situated employee outside his protected group, " Abdul-Hakeem v. Parkinson, 523 F.Appx. 19, 20 (2d Cir. 2013) (quoting Ruiz, 609 F.3d at 493).

Contrary to National Grid's claim, Plaintiff is not required to establish that National Grid lacked a legitimate reason for terminating her in order to raise an inference of discrimination. See Graham v. Long Island R.R., 230 F.3d 34, 41-42 (2d Cir. 2000) (finding "it was premature [for the district court] to consider [the defendant's] evidence" at the prima facie stage, since the "burden at this stage of the McDonnell Douglas analysis rests solely on" the plaintiff, and noting that "only [the plaintiff's] evidence should be considered when deciding whether plaintiff has met [her] initial burden"). Plaintiff only needs to produce evidence tending to show that her termination occurred under circumstances giving rise to an inference of discrimination. See Holcomb, 521 F.3d at 138 ("A plaintiff satisfies [her] burden [at the prima facie stage] if he or she introduces evidence that raises a reasonable inference that the action taken by the employer was based on an impermissible factor [by showing, inter alia ]... that the adverse employment action occurred under circumstances giving rise to an inference of ...


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