United States District Court, S.D. New York
ZELDA D. KEATON, Plaintiff,
UNIQUE PEOPLE SERVICES, INC., YVETTE BRISETTE ANDRE, CHERYELLE CRUICKSHANK, and SONJI PHILLIPS,  Defendants.
OPINION AND ORDER
Kevin Castel United States District Judge
Zelda D. Keaton, proceeding pro se but previously represented
by counsel, brings this action against her former employer
and supervisors for employment discrimination and retaliation
under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and the New York
City Human Rights Law (“NYCHRL”), N.Y.C. Admin.
Code § 8-101 et seq. On June 30, 2017, after the close
of discovery, defendants Unique People Services, Inc.
(“Unique”), Yvette Brisette Andre, Cheryelle
Cruickshank, and Sonji Phillips moved for summary judgment.
(Dkt. 47). The deadline for Keaton's opposition was
August 4, 2017, but Keaton filed no papers until Keaton wrote
to the Court by letter dated December 28, 2017, requesting
additional information on the status of defendants'
motion. (Dkts. 46, 54). Although the Court then extended the
time for any response by Keaton to January 22, 2018 (Dkt.
54), Keaton never filed opposition papers. Defendants noted
the same in their January 29, 2018 letter to the Court, a
copy of which was sent to Keaton. (Dkt. 55). Keaton has made
no further communications with the Court in the roughly six
months that have passed since that time. The Court thus
reviews defendants' motion as unopposed and, for the
reasons to be explained, grants the motion for summary
Court “shall” grant summary judgment “if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Rule 56(a), Fed.R.Civ.P. A fact is
material if it “might affect the outcome of the suit
under the governing law . . . .” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a
summary judgment motion, courts “construe the facts in
the light most favorable to the non-moving party and . . .
resolve all ambiguities and draw all reasonable inferences
against the movant.” Delaney v. Bank of Am.
Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam)
(omission in original) (quoting Aulicino v. New York City
Dep't of Homeless Servs., 580 F.3d 73, 79-80 (2d
Cir. 2009)). The movant must bring forward evidence on each
material element of his or her claim or defense that
demonstrates his or her entitlement to relief. See Vt.
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244
(2d Cir. 2004). The evidence on each material element must be
sufficient to entitle the movant to relief in its favor as a
matter of law. See id.
motion for summary judgment is unopposed, as it is here, the
Court “must review the motion . . . and determine from
what it has before it whether the moving party is entitled to
summary judgment as a matter of law, ” because it
“‘may not grant the motion without first
examining the moving party's submission to determine if
it has met its burden of demonstrating that no material issue
of fact remains for trial.'” Id. at 244,
246 (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d
Cir. 2001)). “[I]n determining whether the moving party
has met this burden . . ., the district court may not rely
solely on the statement of undisputed facts contained in the
moving party's Rule 56.1 statement. It must be satisfied
that the citation to evidence in the record supports the
assertion.” Id. at 244.
employment discrimination suits where the “merits turn
on a dispute as to the employer's intent, ” courts
exercise caution in granting summary judgment motions.
Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.
2008). Nonetheless, when a discrimination case lacks a
genuine issue of material fact, summary judgment remains
available. Schiano v. Quality Payroll Sys., Inc.,
445 F.3d 597, 603 (2d Cir. 2006).
afford special solicitude to pro se litigants confronted with
motions for summary judgment. See Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). As required
by Local Civil Rule 56.2, defendants attached to their motion
the Notice to a Pro Se Litigant Opposing Summary Judgment.
(Dkt. 52) Although Keaton has submitted no opposition, the
Court draws every reasonable inference in her favor. See
Delaney, 766 F.3d at 167. BACKGROUND.
the Complaint alleges that defendants (i) retaliated against
Keaton for her complaints regarding Unique's
discriminatory hiring practices and (ii) treated her more
harshly than similarly situated employees on the basis of her
national origin or religion. (Second Amended Complaint
(“SAC” or “Complaint”) ¶¶
27-37). Keaton seeks compensatory and punitive damages, along
with costs and fees. (Id. at 8).
Keaton has not submitted a statement of facts pursuant to
Local Civil Rule 56.1, the Court examines the record guided
by defendants' Rule 56.1 statement to the extent it is
supported by materials in the record. See Vt. Teddy Bear
Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004); see also Champion v. Artuz, 76 F.3d 483, 485
(2d Cir. 1996) (“[A] plaintiff opposing summary
judgment may not rely on his complaint to defeat the motion .
. . .”). Keaton worked at Unique, a non-profit social
services agency, from 1998 until 2013 as a manager overseeing
certain of Unique's residences. (Defs. 56.1 ¶¶
1, 6). Unique runs residential facilities to provide housing
and other services to developmentally disabled individuals,
among other populations. (Id.). Keaton's
responsibilities included overseeing the day-to-day operation
of the residential facilities and the staff serving them.
(Id. ¶ 7). At Unique, defendants Andre,
Cruickshank, and Phillips served as Executive Director,
Associate Executive Director, and Director of Developmental
Disabilities Services, respectively. (Id. ¶ 8).
approximately 2010 or 2011, managers like Keaton were able to
recruit, interview, and hire their own subordinate
residential facility staff. (Id. ¶ 44). Around
2010 or 2011, however, the hiring process changed, such that
Unique's central human resources department provided a
list of potential applicants for each manager to interview
when a new position opened. (Id. ¶¶
45-46). Keaton complained about the quality of applicants,
believing that more qualified candidates were being passed
over in favor of candidates connected to defendant Andre by
virtue of their Caribbean national origin or Seventh Day
Adventist religion. (Id. ¶¶ 47-50).
Specifically, she objected to failures to hire
Spanish-speaking applicants to facilitate Unique's care
for Spanish-speaking residents, including by way of
administration of ad hoc English language proficiency tests
to bilingual applicants. (Id. ¶ 50; Keaton Dep.
199:15- 204:21). She complained about these practices to
personnel in Unique's internal human resources department
and at various staff meetings. (Defs. 56.1 ¶ 57; Keaton
Dep. 180:25- 181:11, 207:7-12).
3, 2013, a dispute between a Unique staff member and an
occupational therapist broke out at one of the residential
facilities managed by Keaton. (Defs. 56.1 ¶¶ 7, 9).
The incident occurred in the vicinity of a resident and
involved the staff member referring to the resident as
“the white boy” and making a threatening remark
to the occupational therapist. (Id. ¶¶ 9,
14) Although the incident was reported to Keaton the same
day, she did not report the matter to her supervisors.
(Id. ¶ 10). On May 6, 2013, the occupational
therapist reported the incident for investigation by Unique
and by Unique's state regulator, the Office for People
with Developmental Disabilities (“OPWDD”),
alleging potential psychological abuse towards the resident
based on the resident overhearing or feeling threatened by
the remarks. (Id. ¶¶ 11, 17; Andre Aff.
Ex. F). Unique suspended Keaton and the staff member on or
about May 10, 2013 pending the completion of its
investigation. (Defs. 56.1 ¶¶ 12, 22).
investigation concluded that the incident constituted abuse.
(Id. ¶ 14; Andre Aff. Exs. F, I). In relevant
part, the internal investigation concluded that Keaton (i)
impermissibly allowed the staff member involved in the
dispute to continue his duties with the resident on the day
of the dispute and (ii) failed to report the allegation of
abuse of a resident who was present for a verbal altercation
among staff. (Defs. 56.1 ¶¶ 14-16). As a result of
OPWDD's investigation, OPWDD issued Unique a
“45-day letter, ” a precursor to Unique's
program “being disbanded by the state” unless
Unique “achieve[d] . . . regulatory compliance in a
timely manner” and maintained such compliance.
(Id. ¶¶ 17, 21). Specifically, OWPDD
issued the letter based in part upon Keaton's failure as
the residence manager on duty to “implement immediate
protections” for the resident and to alert OPWDD within
twenty-four hours of learning of an allegation of abuse.
(Id. ¶¶ 18-20). The 45-day letter was the
first such letter Unique received in the approximately five
years that defendant Andre served as executive director.
(Id. ¶¶ 8, 21). Unique notified OPWDD of
Keaton's suspension in its June 5, 2013 filing with OPWDD
responsive to the 45-day letter. (Id. ¶ 22).
Unique terminated Keaton on June 20, 2013, citing her actions
in response to the staff incident, the allegations of abuse
of a resident by staff under her supervision, and other prior
performance issues. (Id. ¶¶ 23-25).
three-part framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), applies to Title VII
retaliation and discrimination claims. See Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010) (retaliation);
Mandell v. County of Suffolk, 3 ...