United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR., United States District Court Chief
Sharon Edwards commenced this action alleging racial
discrimination against her former employer, Rochester
Institute of Technology (“RIT”) in violation of
Title VII of the Civil Rights Act, 42 U.S.C. §2000e,
et seq., the New York State Human Rights Law, N.Y.
Exec. Law § 290, et seq. (“NYSHRL”), and 42
U.S.C. § 1981. She also alleges gender discrimination in
violation of Title VII with respect to her termination only.
ECF Nos. 1, 93.
pending before the Court is Defendants' Motion for
Summary Judgment. ECF No. 132. Having considered the moving
papers, the record evidence, and the applicable law, the
Court grants Defendants' motion and dismisses the Amended
Complaint in its entirety.
commenced this action on September 27, 2010. ECF No. 1.
Before Defendants filed an Answer, Plaintiff filed an Amended
Complaint dated October 8, 2010. ECF No. 2. At the time this
action was commenced, Plaintiff was represented by Christina
Agola, Esq., but Ms. Agola withdrew as counsel in December
2011. ECF No. 15. Plaintiff proceeded pro se until
December 4, 2012, when Plaintiff's current attorney,
Prathima C. Reddy, Esq., entered a Notice of Appearance. ECF
time, discovery was completed and the deadline to file
dispositive motions was December 17, 2012. ECF No. 56.
Defendants filed a summary judgment motion on December 17,
2012. ECF Nos. 59-60. Plaintiff opposed the motion and moved
to amend the complaint and to reopen discovery. Plaintiff
also filed a separate motion to stay the determination of the
summary judgment motion pending further discovery regarding
Plaintiff's termination. ECF Nos. 68, 72. By Order dated
August 22, 2013, Magistrate Judge Marian W. Payson granted
Plaintiff's motion to amend and permitted Plaintiff to
add new claims for racial discrimination and retaliation
based on her termination; permitted an additional claim for
gender discrimination under Title VII based on her
termination only; denied Plaintiff's request to add
additional claims of gender discrimination under the NYSHRL;
and permitted Plaintiff to conduct limited discovery
regarding her termination. ECF No. 90.
filed her Second Amended Complaint on September 23, 2013 (ECF
No. 93), which contains six separate causes of action: (1)
the first cause of action, asserted against RIT and Dr. Boyd,
alleges discrimination in the form of disparate treatment and
unlawful termination based on race in violation of 42 U.S.C.
§ 1981; (2) the second cause of action, asserted against
RIT under Title VII, alleges discrimination based on race in
the form of disparate treatment and unlawful termination; and
discrimination based on gender solely based on her
termination; (3) the third cause of action, asserted against
RIT, alleges discrimination based on race in the form of
disparate treatment and unlawful termination in violation of
the NYSHRL; (4) the fourth cause of action, asserted against
RIT and Dr. Boyd, alleges retaliation in violation of 42
U.S.C. § 1981; (5) the fifth cause of action, asserted
against RIT, alleges retaliation in violation of Title VII;
and (6) the sixth cause of action, asserted against RIT,
alleges retaliation in violation of the NYSHRL. Id.
Decision and Order dated September 26, 2013, this Court
granted Plaintiff's motion to stay the summary judgment
proceedings pending the completion of further discovery on
Plaintiff's wrongful termination claims. ECF No. 94.
Defendants withdrew their prior motion for summary judgment.
ECF No. 130.
current pending motion addresses all of the claims raised in
Plaintiff's Second Amended Complaint. ECF No. 132. In
support of their motion, Defendants submit a Statement of
Undisputed Facts with Appendix Exhibits 1 through 28
(“Def. Appx. Ex.”); Memorandum of Law
(“Def. Mem.”); Attorney Declaration (“Atty.
Decl.”); and Declaration of Tamara Gouger
(“Gouger Decl.”) with Supporting Exhibits 1
through 10. ECF Nos. 132-136.
submitted a Response to Defendants' Statement of
Undisputed Facts; Memorandum in Opposition to Defendants'
Motion; Attorney Declaration with Supporting Exhibits 1
through 29; and Plaintiff's Affidavit with Supporting
Exhibits 1 through 100. ECF Nos. 153-180.
April 28, 2017, the same day Defendants' Reply was due,
Plaintiff filed additional Supporting Exhibits 101 through
105, which appears to be a corrected filing as those exhibits
were cited in her Memorandum (ECF No. 177 at 33) but not
included in her Opposition papers. ECF No. 183.
Defendants' Reply on April 28, 2017 (ECF No. 184), and
after receiving permission from the Court to file a limited
Sur-Reply (ECF No. 187), Plaintiff filed an Amended Affidavit
by Plaintiff; an Attorney Declaration in Support of Sur-Reply
with Supporting Exhibit 1; and Memorandum of Sur-Reply. ECF
Nos. 188-190, 192.
Court must point out the numerous deficiencies in
Plaintiff's submissions. First, Plaintiff's Response
to Defendants' Rule 56 Statement does not comply with the
Local Rules of Civil Procedure, which require
“correspondingly numbered paragraphs, and, if
necessary, additional paragraphs containing a short and
concise statement of additional material facts as to which it
is contended there exists a genuine issue to be tried.”
Loc. R. Civ. P. 56(a)(2). Rather, Plaintiff
“contests” the majority of the propounded facts
in narrative form, often without citing evidence and/or
without responding to or specifically controverting the facts
asserted. In accordance with this District's Local Rules,
the Court deems admitted any properly supported facts
asserted against Plaintiff. Loc. R. Civ. P. 56(a)(2)
(“Each numbered paragraph in the moving party's
statement of material facts may be deemed admitted for
purposes of the motion unless it is specifically controverted
by a correspondingly numbered paragraph in the opposing
Plaintiff utilizes this submission to assert new claims.
E.g., Pl. Opp'n Stmt., ¶ 18. The Court
therefore disregards any improperly raised new claims at this
stage. See Lyman v. CSX Transp., Inc., 364 F.
App'x 699, 701 (2d Cir. 2010) (“An opposition to a
summary judgment motion is not the place for a plaintiff to
raise new claims.”).
the Court does not consider the paragraphs of Plaintiff's
Affidavit (ECF Nos. 165, 188 (Amended)) that contradict her
sworn deposition testimony, rely on documents not produced in
discovery or inadmissible evidence, are unsupported by her
evidentiary submissions, or that do not contain adequate
citations to the record to support her contentions. See
Point 4 Data Corp. v. Tri-State Surgical Supply & Equip.,
Ltd., No. 11-CV-726, 2013 WL 4409434, at *22 (E.D.N.Y.
Aug. 2, 2013), report and recommendation adopted as
modified, 2013 WL 5502852 (E.D.N.Y. Oct. 1, 2013),
and report and recommendation adopted, 2014 WL
12769275 (E.D.N.Y. Sept. 17, 2014) (“If plaintiffs'
counsel expects the Court to ‘scour the record' to
document the facts posited in their legal arguments,
‘that is simply not our job, at least in a counseled
case.'”) (quoting Sioson v. Knights of
Columbus, 303 F.3d 458, 460 (2d Cir. 2002));
Fernandez v. DeLeno, 71 F.Supp.2d 224, 227-28
(S.D.N.Y. 1999) (“counsel simply, in effect, pointed to
virtually the entire body of extensive discovery in this case
without any evidentiary affidavits or other meaningful
identification of triable facts in the record, in effect,
inviting this Court to peruse a haystack looking for needles.
This invitation is not only inconsistent with the plain
requirements of Local Civil Rule 56.1 but, if accepted, would
eviscerate summary judgment as an efficient tool for
distinguishing claims that should be tried from those that
need not be tried.”).
unless otherwise noted, after reviewing the depositions,
declarations, exhibits, and other evidence and pleadings, the
Court has determined that the following facts are beyond
genuine dispute and supported by admissible evidence.
Plaintiff's Employment with RIT
an African-American female, began working at RIT in May of
2003. Before joining RIT, Plaintiff earned a Bachelor's
Degree in Business Administration from RIT in 1996 and a
Master's Degree in Management from Nazareth College in
2003 with a major in Accounting.
testified that she had been unemployed before 2003, but also
that she was sporadically employed in various positions,
performing mostly clerical and secretarial work, between
February 1983 and April 2002, typically for only a few months
at a time. Pl. Dep. 18-25; Gouger Ex. 1. Plaintiff states
that her temporary positions were to accommodate her school
schedule, and that her time off was spent caring for her
children. Pl. Aff. ¶ 3-4, Ex. 2. After graduating high
school, Plaintiff worked at Harter Secrest & Emery LLP in
the collections department performing billing work. That
position ended in 1992. Pl. Dep. 18-25.
hired Plaintiff as an Operations Coordinator for Venture
Creations. Venture Creations was created in 2001 as a new
business incubator to create an environment for the
development of new, technologically innovative businesses.
Venture Creations aids in the development of these new
businesses by facilitating their design, development,
construction, and operation, with the overall goal of
promoting education and research. Various new business
start-ups are located at the Venture Creations' facility,
located off-campus from RIT, and RIT facilitates their
development. In turn, RIT charges fees to the businesses for
their use and occupancy of the Venture Creations'
state that Plaintiff was responsible for various
administrative tasks associated with Venture Creations, such
as ensuring that office space was prepared for companies to
move-in, ensuring that companies were invoiced for their
licensing fees, making sure supplies were stocked, arranging
for office keys to be made for new companies, ensuring that
the facility was property maintained by coordinating with
facilities management, assisting companies with internet
technologies issues by coordinating with RIT's internet
technologies services department, and arranging for the board
meetings of Venture Creations. Def. Appx. Ex. 27 (“Boyd
Aff.”) ¶ 5; Pl. Dep. 65-70. Plaintiff, on the
other hand, states that although she was hired as an
“Incubator Operations Coordinator, ” her position
involved far greater responsibilities than administrative
tasks, and required a BS in Accounting with three to five
years' experience. Pl. Aff. ¶¶ 8-14, Exs. 1, 4,
most of Plaintiff's employment, the Venture Creations
staff primarily consisted of the Executive Director and
Plaintiff. RIT also employed certain other individuals to
serve Venture Creations as business consultants. Gouger Decl.
¶¶ 3-4. Plaintiff claims that in 2006, a woman
named Anita Rohr was hired to take on the administrative
roles, and that in 2007, William Jones was hired to help with
operations. Pl. Aff. ¶¶ 4-6, Exs. 2, 16.
reported to the Director of Venture Creations. Boyd Aff.
¶¶ 4-6; Pl. Dep. 27-28. From 2004 to 2005, she
reported to Lynn Kelly, and then to Mick Stadler in 2005 and
2006. Pl. Dep. 27-28. Plaintiff testified that she also
reported to Dr. Don Boyd, RIT's Vice President of
Research throughout her employment up to his retirement in
2011. Id.; Pl. Aff. ¶ 16.
approximately September 2006 until mid-2007, the Venture
Creations Director position was vacant, at which point Jerry
Mahone was hired as Director of Venture Creations and served
in that capacity until June 2010. Mr. Mahone is
African-American. Plaintiff reported directly to Mr. Mahone
during his tenure as Director of Venture Creations. Plaintiff
states that Mahone also worked under Boyd. Pl. Aff.
¶¶ 16, 31-33.
previously mentioned, Venture Creations employed Rohr, a
Caucasian female, as an Operations Coordinator from
approximately 2007 through her termination in February 2011.
Plaintiff had repeated conflicts with Rohr. Plaintiff
testified that initially their relationship was good, but
later deteriorated because Plaintiff received tuition
assistance from RIT for her doctoral studies conducted
through the University of Phoenix, and Plaintiff was
permitted by their then-supervisor, Mahone, to do her
homework at work. Plaintiff testified that Rohr resented the
fact that RIT and Mahone had assisted her in this manner. Pl.
conflicts with Rohr involved, for example, Plaintiff's
belief that Rohr infringed on her job responsibilities by
performing tasks such as requesting that the air conditioner
be fixed or attempting to fix the copier . Pl. Dep. 136-39,
April and August of 2009, Plaintiff was out of work on
disability in connection with foot surgery. Pl. Dep. 35-36.
Alleged Adverse Actions
claims that she suffered the following adverse employment
actions based on her race: (1) beginning in 2006, a delay on
RIT's part in changing her position's title in
RIT's Human Resources Computer Software, Oracle, from
Operations Coordinator to Operations Manager; (2) RIT's
failure to promote Plaintiff; (3) the reclassification of
Plaintiff's position from exempt to non-exempt under the
Fair Labor Standards Act (“FLSA”); (4) generally,
Plaintiff's job responsibilities performing only clerical
and administrative work; (5) Plaintiff's attendance at a
meeting on November 16, 2009, during which Plaintiff was
accused of various deficiencies related to her work
performance; (6) a negative performance appraisal
(“PA”) in September, 2011; (7) a September 2011
written warning; and (8) her temporary suspension with pay
after an incident involving her then-supervisor, Jones; and
(9) termination from RIT based on her race and/or gender.
Delay in Updating Plaintiff's Title
around October 2006, shortly after Dr. Boyd began serving as
Interim Director of Venture Creations, he informed Plaintiff
that she would receive a three percent pay increase, and that
her title would change from “Operations
Coordinator” to “Operations Manager.” Boyd
Aff. ¶ 10, Boyd Ex. 22; Pl. Dep. 109-10. Plaintiff's
title change was not implemented within RIT's Human
Resources Computer Software, Oracle, until March 2009. Boyd
Aff. ¶ 12; Pl. Dep. 110; Gouger Decl. ¶ 7.
Nevertheless, Plaintiff began using the “Operations
Manager” title immediately. Boyd. Ex. 23; Pl. Dep. 110.
delay in updating Plaintiff's title in Oracle was a
processing error based on the inadvertent failure to submit
the correct Employee Action Form for the changed to be
processed. Gouger Decl. ¶ 8. Although Oracle did not
reflect the title change, Plaintiff's pay increase was
properly processed. Id. ¶ 9. Plaintiff notified
RIT President Dr. William Destler of the error in February of
2009. Boyd Aff. ¶ 13; Pl. Aff. ¶ 60, Ex. 40; Reddy
Decl., Ex. 8. Plaintiff testified that the title change had
no practical impact on her day-to-day responsibilities and
wages. Pl. Dep. 110-12.
Failure to Promote
initially testified that while at RIT, she applied for 50 to
60 positions within RIT, but later changed her testimony,
ultimately admitting to having applied for only four
positions at RIT. Pl. Dep. 117, 227. Those positions were:
(1) counselor position 5527 in the Higher Education
Opportunity Program; (2) a managerial position, PC number
8458, in the HUB Crossroads facility; (3) a director of
orientation position, PC number 1753; and (4) a business
manager position in the Center for Arts and Sciences. Pl.
Dep. 227-231, 247. With respect the managerial position,
Plaintiff testified that she did not possess the technical
skills or meet the qualifications required for that position.
Pl. Dep. 238-41. Plaintiff's applications for these
positions date back to 2006 and 2007, and she did not apply
for any other positions within RIT after August 2007-rather,
she “networked.” Pl. Dep. 253. She explained that
“discrimination enters your surroundings when you are
applying for positions and you are constantly declined,
” but acknowledged that she did not know who ultimately
took those positions, and that RIT did not retaliate against
her by not hiring her for those four positions. Pl. Dep.
also alleges that she was treated differently than certain of
her co-workers, purportedly because of her race, with respect
to her inability to secure an unspecified promotion. ECF No.
93 ¶¶ 23-26. Specifically, Plaintiff's Second
Amended Complaint cites to Kelly, a former supervisor, as a
similarly situated Caucasian co-worker who was allegedly
treated more favorably, id. ¶¶ 22-24, but
Plaintiff never applied for Kelly's position. Pl. Dep.
170-71. During the relevant time period, Kelly was the
Controller and Assistant Treasurer of RIT and RIT employed
her for approximately 20 years. Kelly has an Executive
Master's Degree and has held various positions within the
Finance and Administration Division of RIT, including Manager
of Accounting, Director of Accounting, Director of Accounting
and Payroll, Assistant Controller, Associate Controller, and
Controller and Assistant Treasurer. Boyd Aff. ¶ 24.
also alleges that, following the departure of Mahone, who is
also African-American, she was “never given an
opportunity to apply” for the position of Executive
Director of Venture Creations because the position was posted
on May 24, 2011, when she was on vacation. ECF No. 93
¶¶ 72-74; Pl. Dep. 41. At the time, Jones, who is
Caucasian, had been serving as the Interim Director of
Venture Creations and he ultimately took the permanent role
in May of 2011. Jones Dep. 22-24.
also temporarily served as the Interim Director of Venture
Creations in 2007, prior to Mahone's hiring. Jones again
worked for RIT in 2008 as a part-time consultant working with
Venture Creations' businesses. He then served as a
business development manager for the New York State Energy
Research and Development Authority Clean Energy Incubator
when it was established in December 2009. Jones has a
Bachelor of Architecture degree from Syracuse University and
additional graduate courses in finance and business
administration from RIT. His experience included founding and
managing FM Technologies (a facilities design and project
management company), and working with organizations like
Syracuse University, Catholic University, University of
Maryland, Kodak, and Xerox. Boyd Aff. ¶ 26. Plaintiff
characterizes this work experience as “spotty, ”
that his education and skills were “dated, ” and
he “did not have higher level education.” Pl.
Opp'n Stmt. ¶ 41.
states that Plaintiff has been enrolled in an online program
at the University of Phoenix since 2007, with the goal of
obtaining her doctorate degree, but did not complete it. Pl.
Dep. 11-16. Further, Plaintiff provided conflicting testimony
regarding her employment activities before RIT employed her
in 2003, stating initially that she could not remember any of
her employment after graduating from high school; then
testifying that she was unemployed before working for RIT;
and later testifying that she performed temporary
“receptionist” or “clerical” work for
Manpower. Pl. Dep. 18-26. Plaintiff also recalled that she
worked at Harter Secrest & Emery after high school in the
collections department for approximately nine years until
1992. Pl. Dep. 20-23. Plaintiff contends that she
“complete[d] her doctorate studies in Educational
Leadership, ” but does not specify when. Pl. Aff.
¶¶ 2-24. She further notes that when the Executive
Director position opened in 2011, Plaintiff had been working
with Venture Creations for over five years with a
“proven track record.” Id.
Reclassification of Plaintiff's Position to
around March of 2007, RIT settled threatened class action
litigation related to alleged FLSA violations. This entailed
a campus-wide review of RIT's employees' job
functions, to ensure that the employees were properly
classified as exempt or non-exempt. Effective April 16, 2007,
more than 160 RIT employees were reclassified from exempt to
non-exempt. Plaintiff's position was one of the
reclassified positions. In connection with the
reclassification, RIT sent Plaintiff a letter explaining that
the reclassification was merely a “legal
conclusion” and that it did “not indicate the
importance of the position or its status within the
University.” Boyd Aff. ¶ 15, Ex. 24. She testified
that she was aware that the reclassification occurred
campus-wide and that other employees' positions also
underwent the reclassification procedure. Without further
explanation, Plaintiff states that she was disadvantaged by
the reclassification while the Caucasian reclassified
employees were not. Pl. Aff. ¶¶ 42-43, 56, Ex. 46;
Pl. Dep. 99-100. She testified, however, that her duties
remained the same, she made “about the same amount of
money, ” and that she was entitled to overtime and
received overtime pay when she worked over 40 hours.
to Plaintiff, she functioned at a “Director
level” before the reclassification. Defendant maintains
that her work duties were secretarial and clerical in nature.
Pl. Dep. 112; Pl. Aff. ¶¶ 3, 12, 32, 33, Exs. 1,
6-7. Plaintiff suggests that the reclassification
“limited” her to clerical work and thus decreased
her earning potential. Pl. Aff. 42, 43, 56, 170, Exs. 25-26.
The reclassification of Plaintiff's position to
non-exempt meant that Plaintiff was paid on an hourly basis
rather than being paid a set salary. Pl. Dep. 94. Because of
this change, Plaintiff was to be paid for any time worked
over 40 hours. Boyd Aff. ¶ 16; Pl. Dep. 95-96. Plaintiff
contends that the reclassification no longer allowed her a
flexible work schedule so that she could not complete her
doctoral coursework. Pl. Opp'n Stmt. ¶ 49.
mid-2008, Plaintiff and Gouger discussed her FLSA
classification. Gouger asked Plaintiff to fill out a detailed
job description questionnaire that RIT used to determine
which positions should be classified as exempt or non-exempt.
Based on Plaintiff's responses to that questionnaire,
Gouger confirmed that Plaintiff's position was correctly
classified as non-exempt. Gouger Decl. ¶ 6, Ex. 2.
Plaintiff's Job Duties
testified that her job with Venture Creations always involved
primarily secretarial and clerical work, Pl. Dep. 65-69, 112,
a statement that she now denies. Pl. Aff. ¶¶ 11,
13, Exs. 6-7. Even after Mahone became her supervisor, she
claims that she “ran that facility.” Pl. Dep.
testified that in 2009 she requested a meeting with Boyd and
Mahone to determine the responsibilities of her position. At
the meeting, Boyd “asked her what did she want to do
and what responsibilities did she have.” Pl. Dep.
105-09. Plaintiff stated that she believed that, throughout
her tenure at RIT, “there was a problem with our job
responsibilities” and that one of the reasons for this
was that the job responsibilities were “not
defined.” Pl. Dep. 140.
declined certain tasks because she believed they were not
part of her job description. For example, Plaintiff was asked
to maintain the Venture Creations' website. Plaintiff
turned down the offer because she believed that it would not
provide her the “opportunity to be creative and
innovative.” Def. Appx. Ex. 24-25.
November 16, 2009 Meeting
testified that on November 12, 2009, Mahone informed her that
a staff meeting would take place on November 16, 2009. Pl.
Dep. 47. Plaintiff, Mahone, Boyd, and Gouger attended the
meeting, which was intended to counsel Plaintiff regarding
her work performance and her continued conflicts with her
co-workers. Boyd Aff. ¶¶ 30-31; Gouger Decl. ¶
12; Pl. Dep. 47. Plaintiff states that there is no
documentation to support that the meeting was a
“counseling” in accordance with RIT's
Progressive Discipline Policy. Pl. Aff. ¶ 85, Ex. 51.
that meeting, Plaintiff alleges that she was accused of
having an unprofessional attitude, “hindering customers
at Venture Creations, ” starting rumors about Mahone
purportedly viewing inappropriate material on his computer,
not recording her time properly, and not getting along with
other individuals on campus. Pl. Dep. 47.
also states that she recorded the November 16, 2009 meeting,
but the recording was damaged as a result of computer
problems when her husband attempted to retrieve the audio
file. Pl. Dep. 79-84, 254-59. Plaintiff testified that no
further action was taken in connection with any of the
purported allegations made at the November 16, 2009 meeting,
and that nothing that was said at that meeting led her to
believe that the meeting was related to her race.
Id. at 48, 62-63. Plaintiff later filed
discrimination and retaliation charges with the Equal
Employment Opportunity Commission (“EEOC”) in
connection with the meeting.
testified that she experienced problems with approximately
nine or ten different RIT employees. Pl. Dep. 56-58.
According to Plaintiff, the problems were always the fault of
her co-workers. Id. She conceded that she had a
history of not working well with other women even before RIT
employed her. Pl. Dep. 193-94.
Plaintiff was involved in several incidents involving Rohr,
her female co-worker. Boyd Aff. ¶¶ 18-19; Pl. Dep.
127-128, 133-135. Plaintiff testified that she yelled at Rohr
in the workplace approximately four separate times. Pl. Dep.
149-50. One of the incidents led Plaintiff to tell Rohr:
“be a professional and stop the child's play.
You're too old to be acting like a two year old.”
Boyd Aff. ¶ 18, Ex. 25.
Plaintiff's 2011 Performance Appraisal
mid-2010, Jones became the Interim Director of Venture
Creations, upon Mahone's departure. Boyd Aff. ¶ 26.
Plaintiff testified that, until she received her PA in
September of 2011, she and Jones had “a great
employee-employer relationship.” Pl. Dep. 262-64.
Plaintiff states that the relationship ...