DocketNumber： 15-CV-06964 (NGG) (LB)
Judges： Garaufis
Filed Date： 9/30/2017
Status： Precedential
Modified Date： 11/7/2024
After Plaintiff Bernice Forrester was terminated from her job at Rikers Island’s North Infirmary Command, .she brought an employment discrimination action against her employer, Prison Health Services, Inc., and its successor, Defendant Corizon Health, Inc., under the Americans with Disabilities Act (“ADA”), 42 U.S.C,. §§ 12101-213, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-64, and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101 to 8-131.
Plaintiff duly refiled her suit against Defendant in New York State court, alleging substantially the same facts but solely asserting claims under the NYCHRL for disability discriminatiQn (on both “adverse employment action” and “harassment” theories) and retaliation. (Compare Am. Compl. (“Forrester I Am. Compl.”) (For-rester I Dkt. 16), with Compl. (Dkt. 11-1); Def. Reply to PL Response to .Def. Rule 561 Statement (“Def. Rule 56.1 Reply”) (Dkt. 40-1) ¶¶ 293-94.) Defendant has again moved-for summary judgment, this time on the grounds that this court’s judgment, in Forrester I precludes Plaintiff from asserting or establishing , her NYCHRL claims, and that she has failed to show that she was discriminated against because of her disability or retaliated against because of protected conduct. (Def. Mot. for Summ. J. (Dkt. 37); Def. Mem. of Law in Support of Mot, for Summ. J. (“Def. Mem.”) (Dkt. 37-1).)
For the reasons stated below, the court GRANTS Defendant’s -motion for summary judgment.
I. BACKGROUND
The court assumes the parties’ familiarity with the factual history of this case, which is set forth in detail in Magistrate Judge Bloom’s Report and Recommendations (“R & R”) and this court’s opinion in Forrester I. (R & R (Forrester I Dkt. 76); M & O.) A brief summary of that history follows to guide the discussion below.
Plaintiff worked at the medical facilities at the New York City correctional facility on Rikers Island for more than two decades, performing well and receiving several promotions. ‘(M & 0 at 2.) In 2004, Plaintiff was promoted to health service administrator (“HSA”), and, in 2009, transferred to NIC. (Id.) As HSA, Plaintiff was the senior administrative officer of the NIC, and was responsible for supervising administrative staff, acting as á liaison with the City of New York Department of Correction and the Department of Health, and overseeing ‘ other administrative mat
Plaintiff suffers from diabetes, which occasionally causes her blood sugar levels to fluctuate in the morning, making her feel confused and disoriented. (Id.; R & R at 3-4.) When Plaintiff was unwell, she would wait for her blood sugar to stabilize before commuting to work. (PL Dep. Tr. (“PI. Dep.”) (Deck of Joshua Bernstein (“Bernstein Deck”), Ex. 6 (Dkt. 39-3)) 96:11-17.) On these days, she would call in to work to report that she would be late., (M & 0 at 3.) When, in 2008, these imbalances became more frequent, Plaintiff requested intermittent leave under the FMLA, permitting her to come into work late on days when her blood sugar was high or low. (Id.) PHS granted Plaintiffs request for leave, although it questioned whether she misused leave on one occasion and instructed her to give notice of when she would be arriving at work on days when she was running late. (Id. at 4.) Yussuff also questioned whether Plaintiff was eligible to take intermittent leave for two consecutive terms for the same condition (which PHS Director of Human Resources Jerome Donahue established she was eligible to do) (id. at 3-4), sent Plaintiff several emails expressing concerns with her time and attendance (id. at 4-5), and sent other groups of employees emails urging them to arrive on time (kk at 5). From 2006 until October 2011, Plaintiff was late to work 232 times, of which 40 instances of lateness were recorded as “FMLA leave,” 49 instances were marked as due to sickness, and 121 were marked “late.” (H. at 4.)
In August 2010, Department, of Health employees complained to PHS about the administration of the NIC, and the Department of Health threatened to take over the facility. (Id at 5.) The Department of Health liaison responsible for monitoring PHS’s operations, Homer Ven-ters, indicated to PHS that new leadership was needed at the NIC. (Id.) In response, PHS decided to convert the HSA position into a clinical position and terminated Plaintiff due to her lack of a clinical degree. (Id.) ’ Venters expressed concerns about this plan to Donald Doherty, a senior vice president of PHS, and PHS temporarily reinstated Plaintiff to her position with back pay for the three days that she did not work between her termination and her reinstatement. (Id. at 5-6; R & R at 8.) For her part, Plaintiff requested reassignment to an HSA position in another jail and complained that Yussuff had harassed her for taking FMLA leave. (M & Oat5; R& Rat8-9.)
In March 2011, a panel of executive staff members, including Yussuff, conducted Plaintiffs performance review for the previous year. (M & O at 6.) In this review, Plaintiff received a composite score of 1.12 on a four-point scale, which fell between “needs improvement” and “meets expectations” on PHS’s rubric. (Id.) In April 2011, a team of PHS executives discovered “horrific conditions” in the NIC, which one executive described as unsanitary, “cluttered with debris,” and missing up-to-date supplies and sufficiently full oxygen tanks. (R & R at 11.) The same month, a Department of Health monitor reported to Plaintiff that the NIC’s main center was not adequately supplied for patient care and that various machines there had not been checked since the previous December. (Id. at 10.) The Department of Health also reported to PHS several patient complaints, including that staff had failed to change an incontinent patient’s briefs and the cast and bandages on another patient’s leg in a timely manner. (Id. at 11.) In the spring of 2011, Venters recommended that the NIC’s leadership, including Plaintiff, should be transferred. (Id.) Doherty determined that, in light of Plaintiffs existing performance problems, she should be terminated or demoted to the position of ad
Also in 2011, to PHS learned that a high-profile inmate’s health information had been- accessed inappropriately and that there had been violations of Defendant’s email encryption policy. (R & R.at 15.) In response, PHS (and, following the merger, Corizon) reminded all employees of the company’s “zero tolerance policy” for violations of patient privacy law, and Doherty authorized employee relations manager Eileen McNemey to audit employees’ emails. (M & 0 at 7.) As part of this audit, McNemey reviewed Plaintiffs emails and found ten emails that Plaintiff had forwarded to her personal email account with the term “BING” in the subject line. (Id.) Attached to these emails were unencrypted documents containing daily “BING reports,” which were generated by the Department of Corrections and contained inmates’ personally identifiable information, including information about their gang affiliations, health status, and whether they were HIV-positive. (Id.) Plaintiff was immediately suspended pending an investigation. (Id. at 8) On October 21, 2011, the Department of Corrections informed Doherty that it deemed these emails to be a security breach and that Plaintiffs security clearance, which she needed in order to work on Rikers Island, was indefinitely suspended. (Id.) Six days later, Defendant fired Plaintiffs, citing her security breach and the consequent loss of her security clearance. (Id.)
II. PROCEDURAL HISTORY
A. Forrester I
On January 24, 2012, Plaintiff filed a pro se complaint in this court, alleging that PHS and Defendant had violated the ADEA by firing her, giving her a “sub-par” evaluation, demoting her, and ultimately firing her again, all on the basis of her age. (Compl. (Forrester I Dkt, 1) at 1, 3-4.) After obtaining counsel, Plaintiff filed an amended complaint that asserted claims for age discrimination and disability discrimination under the NYCHRL (Ami Compl. (Forrester I Dkt. 16) ¶¶ 74-79), retaliation under the NYCHRL (id. ¶¶ 80-82), age discrimination under the ADEA (id. ¶¶ 83-85), disability discrimination and retaliation under the ADA (id. ¶¶ 86-91), and interference with FMLA rights (id. ¶¶ 92-97). Following discovery, the defendants moved for summary judgment. (Def. Mot. for Summ. J. (Forrester I Dkt. 65); Def. Mem. of Law in Supp. of Mot. for Summ. J. (“Forrester I Def. Mem.”) (For-rester I Dkt. 65-1); PL Mem. in Opp’n to Def. Mot. for Summ. J. (“Forrester I PI. Opp’n”) (Forrester I Dkt. 67).) The court referred this motion to Magistrate Judge Lois Bloom. (Order Referring Mot. for Sümm. J. (Forrester I Dkt. 74).)
On January. 5, 2015, Judge Bloom issued an R & R recommending that the court grant Defendant’s motion for .summary judgment as to Plaintiffs ADA and FMLA claims and decline to exercise supplemental jurisdiction over her NYCHRL claims.
B. Forrester II
' While Plaintiffs appeal from Forrester I was pending, she filed a complaint in New York State Supreme Court in the County of New York. (Compl.) The new complaint alleged facts largely identical to those previously alleged in Forrester I (compare “Forrester I Am. Compl, with Compl.; Def. Rule 56.1- Reply ¶¶ 293-94) and asserted three causes of -action under the NYCHRL: disability discrimination under a “harassment” theory, disability discrimination under an “adverse employment action” theory, and retaliation in violation of the NYCHRL.
On January 30, 2017, Defendant moved for summary judgment. (Def. Mot. for Summ. J.) Defendant first argues that the doctrine of collateral estoppel bars Plaintiff from asserting NYCHRL claims that parallel the federal claims adjudicated in Forrester I, as well as from relitigating the court’s determinations in Forrester I that Plaintiff had not demonstrated the existence of a genuine dispute as to whether Plaintiffs demotion or termination were motivated by discrimination or retaliation, or that any “harassment” she endured in the workplace was discriminatory. (Def. Mem. at 9-13, 24; Def. Mem. of Law in Further Supp. of Its Mot. for Summ. J. (“Def. Reply”) (Dkt. 40) at 7-10.) Second, Defendant argues that, in light of evidence of Plaintiffs poor job performance and responsibility for a breach of information security and inmate privacy, no reasonable factfinder could conclude that her' demotion or termination were motivated by discrimination. (Def. Mem. at 25-32 (termination); id. at 32-40 (demotion).) Defendant further contends that Plaintiff has failed to demonstrate the existence of a genuine issue of material fact as to whether she was retaliated against (id. at 45-46) or subjected to an objectively hostile work environment because, of her disability (id. at 46-48).,
III. LEGAL STANDARDS
A. Summary Judgment
A party is entitled to summary judgment if it “shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is proper in a case in which, “resolv[ing] all ambiguities and drawing] all reasonable factual inferences in favor of the party against whom summary judgment [is]
B. Issue Preclusion
The doctrine of issue preclusion (also known as “collateral estoppel”) “prevents parties or their privies from relit-igating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002). Under federal law,
C. NYCHRL
1. Discrimination
The NYCHRL prohibits employers from terminating an employee.or otherwise “diseriminatpng] against such person in compensation or in terms, conditions or privileges of employment” because of the employee’s disability, N.Y.C. Admin. Code § 8-107(l)(a)(2), (3), To pre
Like federal law, the NYCHRL only prohibits workplace mistreatment that is motivated by discrimination on account of a protected status. Under the NYCHRL, a plaintiff must show that he or she was treated less well “because of’ a protected status. N.Y.C. Admin. Code § 8-107(1). In order to make such a showing, a plaintiff need only demonstrate that discrimination was “one of the motivating factors for the defendant’s conduct,” not that discrimination was the “but-for” cause of the plaintiffs differential treatment. Williams, 872 N.Y.S.2d at 40 n.27; see also Mihalik, 715 F.3d at 110 n.8. New York State courts have held that, on a motion for summary judgment, a plaintiff may establish the existence of a genuine dispute over whether the defendant acted with discriminatory intent by using either the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a “mixed-motives” analysis, see Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), or some combination of these evi-dentiary frameworks. See Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 946 N.Y.S.2d 27, 30 (2012); Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 936 N.Y.S.2d 112, 124 (2011); cf. Mihalik, 715 F.3d at 110 n.8 (noting uncertainty in whether Bennett modified the McDonnell Douglas burden-shifting framework for NYCHRL claims).
Under the NYCHRL, a defendant is entitled to summary judgment if there is no genuine issue of material fact as to whether discrimination played a role in the defendant’s actions. See Mihalik, 715 F.3d at 110 n.8. Thus, under the McDonnell Douglas framework, summary judgment is appropriate if, once a plaintiff has made out a prima facie case of discrimination and the defendant has offered legitimate reasons for its actions, “no reasonable jury could conclude either that the defendant’s ‘reasons were pretextual’ or that the defendant’s stated reasons were not its sole basis for taking action, and that its conduct was based at least ‘in part on discrimination.’” Ya-Chen Chen v. City Univ. of New York, 805 F.3d 59, 76 (2d Cir. 2015) (citations omitted) (quoting Melman, 946 N.Y.S.2d at 35). Likewise, under the
The NYCHRL is construed “broadly in favor of discrimination plaintiffs,” Albunio v. City of New York, 16 N.Y.3d 472, 922 N.Y.S.2d 244, 947 N.E.2d 135, 137 (2011), within certain bounds. The NYCHRL is “not a general civility code,” Williams, 872 N.Y.S.2d at 40-41 (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)), and does not make employers liable for hostile conduct that is not motivated by discrimination, see Mihalik, 715 F.3d at 110; Nor is all discriminatory treatment actionable under the NYCHRL; a defendant may escape liability by showing that its conduct “consists of nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences.’” Williams, 872 N.Y.S.2d at 41 (quoting Oncale, 523 U.S. at 81, 118 5.Ct. 998). Accordingly, courts may grant summary judgment in “truly insubstantial eases” in which “a reasonable jury could only conclude that the conduct amounted to no more than a petty slight.” Mihalik, 715 F.3d at 111.
2. Retaliation
The NYCHRL also prohibits employers from retaliating against “any person ... because such person has ... opposed any practice forbidden under [the NYCHRL].” N.Y.C. Admin. Code § 8-
107(7)(i). To “oppose[ ]” a forbidden practice, a plaintiff need not file a formal complaint or initiate a lawsuit, but may simply “[make] clear her disapproval of the defendant’s discrimination by communicating to him, in substance, that she [thinks] his treatment of the victim [is] wrong.’ ” Mihalik, 715 F.3d at 112 (alterations in original omitted) (quoting Albunio, 922 N.Y.S.2d 244, 947 N.E.2d at 138). Moreover, to constitute retaliation, the employer’s conduct “need not result in an ultimate action with respect to employment ... or in a materially adverse change in the terms or conditions of employment,” but must only “be reasonably likely to deter a person from engaging in protected activity.” N.Y.C. Admin. Code § 8-107(7). The assessment of whether an employer’s conduct would be reasonably likely to dissuade a person from engaging in protected activity should “be made with a -keen sense of workplace realities, of the fact that the chilling effect of particular, conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct.” Mihalik, 715 F.3d at 112 (quoting Williams, 872 N.Y.S, at 34). A defendant is entitled to summary judgment on an NYCHRL retaliation claim only if there is no genuine dispute as to whether retaliation played a role in the defendant’s actions. See Ya-Chen Chen, 805. F.3d at 76.
IV. DISCUSSION
The court first áddresses' the parties’ dispute over the record before the court. Next, the court considers the extent to which its decision in Forrester I precludes Plaintiff from asserting her NYCHRL claims. Finally, the court considers the
A. Additions to the Record
The parties dispute the precise scope of the record before the court. (Def. Reply at 5-7.) At the conference held prior to Defendant’s filing of its motion, the parties agreed that no further factual discovery was necessary and that the parties would rely on the. factual record developed in Forrester I. (Aug. 3, 2016, Hr’g Tr. 3:16-4:14; Aug 3, 2016, Min. Entry; PI. Resp. to Def. Rule 56.1 Statement (Dkt. 39-1) ¶ 301.) The court authorized the parties to update their statements of. fact required by Local Rule 56.1 and clarified that it would consider permitting further discovery of evidence relevant to liability if it denied, in whole or in part, Defendant’s motion for summary judgment, (Aug. 3, 2016, Hr’g Tr. 6:20-8:10.)
Notwithstanding this agreement, Plaintiff attached two additional, unsigned and unsworn “affidavits” to her opposition to Defendant’s motion for summary judgment. In the first, Plaintiff states that Doherty urged her to go on disability following her first termination and when discussing her demotion.- (Dec. 2016, PI. 'Aff. (Bernstein Decl., Ex. 79 (Dkt. 39-4)).) Plaintiff argues that this new evidence undermines the- court’s conclusion in Forres-ter I that Doherty only referenced her disability after she first called her health into question (M & O at 36-37) and supports an inference that discrimination at least partially motivated her initial termination and demotion (PI. Mem. of Law in Opp’n to Def. Mot. for Summ. J. (“PI. Opp’n”) (Dkt. 39) at 28-29),
The court will not consider these affidavits. First, the affidavits were not sworn under penalty of perjury and are therefore inadmissible. See Fed. R. Civ. P. 56(c), advisory committee’s note; United States v. All Right, Title & Interest in Real Prop. & Appurtenances, 77 F.3d 648, 657-58 (2d Cir. 1996) (“The submission of [an] un-sworn letter was. an inappropriate response to the government’s motion- for summary judgment, and the factual assertions. made in that letter were properly disregarded by the court.”). Second, Plaintiff does not.cite these affidavits in her Response to Defendant’s Rule 56.1 Statement of Undisputed Material Facts or Rule 56.1 Statement of Material Facts in Dispute. See Local Rule 56.1(b). Third, Plaintiffs counsel expressly agreed to rely on the factual record developed in Forres-ter I, which also presented the NYCHRL
B. Issue Preclusion
The court next considers the extent to which its prior judgment on Plaintiffs federal claims in Forrester I precludes Plaintiff from asserting, or establishing ■NYCHRL claims based on the same facts and substantially the same allegations. , '
The court’s judgment on Plaintiffs federal claims in Forrester I does not necessarily preclude Plaintiff from asserting NYCHRL claims based- on the same allegations at issue in the first case, as Defendant contends. Defendant asserts that Plaintiff is- precluded from asserting her NYCHRL claims, because those claims simply track the ADA. (Def. Mem. at 8, 9.) This-argument might once have had some merit: prior to 2005, some courts interpreted the NYCHRL in line with federal and state antidiscrimination law. See Mihalik, 715 F.3d at 108. In 2005, however, the New York City Council enacted the Local Civil Rights Restoration Act, N. Y.C. Local L. No. 85 (the “Restoration Act”), which provided that NYCHRL claims must be construed “liberally” and in at least as plaintiff-friendly a manner as similarly worded federal and state laws. See N.Y.C. Admin. Code § 8-130; Mihalik, 715 F.3d at 109. Following the Restoration Act, courts have recognized meaningful differences in how plaintiffs must plead and prove claims under the NYCHRL, versus under federal or state law.
The doctrine of issue' preclusion is nevertheless relevant to this' case. Plaintiff may not relitigáte determinations of fact or mixed questions of law and fact, see United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 69 L.Ed. 262 (1924), that were raised, litigated, and necessarily decided in Forrester I. Where Plaintiff is precluded from establishing an element of an NYCHRL claim, the court must enter summary judgment for Defendant on that claim. Cf. Wyly v. Weiss, 697 F.3d 131, 141 (2d Cir. 2012) (prior determination that counsel’s performance' was not deficient would preclude any subsequent malpractice claim requiring a finding that counsel’s performance was deficient). Defendant has identified several specific determinations, made'in Forrester I, that it''argues preclude elements of' Plaintiffs NYCHRL claims (Def. Mem. at 9-13; Def. Reply at 1-5); the court considers these separately below with respect to each of Plaintiffs claims.
Relying on Simmons-Grant v. Quinn Emanuel Urquhart & Sullivan, LLP, 116 A.D.3d 134, 981 N.Y.S.2d 89 (2014), Plaintiff argues that issue preclusion applies, at
1. Discrimination—Adverse Employment Action Theory
Defendant contends that Plaintiffs NYCHRL adverse-employment-aetion claim fails because, in Forrester I, the court determined that Plaintiff had not presented evidence “that an illegal discriminatory reason played a motivating role” in her May 2011 demotion and September-October 2011 suspension and termination. (M & O at 33, 42.) There is no dispute that this issue was actually raised in Forrester I, that Plaintiff had a full and fair opportunity to litigate it, and that its resolution was necessary to support a valid and final judgment on the merits of Plaintiffs ADA adverse-employment-action discrimination claim; the parties only dispute whether the issue is identical as between Forrester I and this case.
The court concludes that Defendant has carried its burden of showing that the issue of whether it acted with discriminatory intent in demoting, suspending, and firing Plaintiff is identical as between For-rester I and this case. Because the record before the court is identical to the record in Forrester I, there are no changes in “controlling facts” or circumstances that might alter the court’s assessment of Plaintiffs evidentiary showing in Forrester I. See Wyly, 697 F.3d at 143. Nor are there differences in the legal standards relevant to this issue: the court in Forres-ter I applied the same causation standards and evidentiary framework that it would have applied to Plaintiffs parallel discrimination claim under the NYCHRL.
First, the court analyzed Plaintiffs ADA adverse-employment-action claim using the same causation standard that applies to NYCHRL discrimination claims. In For-rester I, the court noted that “it is an ‘open question’ in this circuit whether Plaintiff can satisfy her burden by showing that her disability was a ‘substantial’ or ‘motivating’ factor in the adverse employment action, rather than the ‘but-for’ cause.” (M & O at 23.) The court therefore ponsidered her ADA discrimination claim under the more forgiving “motivating factor” standard (id. at 23, 29), which is the same causation standard that applies to NYCHRL discrimination claims, - see Williams, 872 N.Y.S.2d at 40 n.27.
Plaintiffs attempts to distinguish the NYCHRL from federal law are unavailing. First, Plaintiff argues that Velazco, 778 F.3d at 411, recognizes that the “motivating factor” causation inquiry is less demanding under the NYCHRL than under federal law. (PI. Opp’n at 48.) Velazco merely held, however, that NYCHRL claims must be analyzed under a “motivating factor,” rather than a “but-for” causation standard. See id. at 411, Second, Plaintiff argues that the standard for showing “partial discrimination” under the NYCHRL is more plaintiff-friendly than the standard for showing mixed-motives discrimination under federal law. (PI. Opp’n at 24.) The Appellate Division has, however, indicated that “partial discrimination” is synonymous with “mixed motives” discrimination. See Bennett, 936 N.Y.S.2d at 120 (“It is not uncommon for covered entities to have multiple or mixed motives for their action, and the City HRL proscribes such “partial” discrimination .... ”). Although Plaintiff argues that the Restoration Act requires courts to interpret every aspect of the NYCHRL more liberally than federal and state antidis-crimination law—and thus that the NYCHRL must provide a more plaintiff-friendly evidentiary framework than federal law (PI. Opp’n at 24)—she cites no authority so holding. To the contrary, the New York City Council has instructed that federal law may be used to interpret the NYCHRL so long as the NYCHRL is at least as protective of discrimination victims as federal law:
“Interpretations of ... federal statutes with similar wording may be used to aid in interpretation of [the NYCHRL], viewing similarly worded provisions of federal and state civil rights laws as a floor below which the City’s Human Rights law cannot fall,. rather than a ceiling above which the local law cannot rise.” .
Restoration Act § 1.
Lastly, Plaintiff argues that under the NYCHRL, unlike under federal law, she can survive summary judgment under a mixed-motives analysis without adducing “direct” or “smoking gun” evidence of discrimination. (Id at 23.) To the extent that Plaintiff argues that federal law requires her to make an initial showing of “non-‘circumstantial’ evidence,” such argument misapprehends the distinct meaning of “direct evidence” in this context, see Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183-86 (2d Cir. 1992), a distinction the court noted in Forrester I (M & O at 25-26). Although Plaintiff argues that the NYCHRL claims require less evidence of discrimination to survive summary judgment than claims under federal law, it is well-settled that “[w]hile claims under the NYCHRL are more liberally construed than claims under [federal and state law], the NYCHRL ‘does not alter the kind, quality or nature of evidence that is necessary to support or defeat a motion for summary judgment under Rule 56.’ ” Deshpande v. Medisys Health Network,
The issue of whether Defendant was motivated by discriminatory intent when it demoted, suspended, and ultimately fired Plaintiff is identical as between Forrester I and this case. Accordingly, the court’s determination in Forrester I that Plaintiff had failed to show'that these adverse employment actions were motivated by discriminatory intent precludes Plaintiff from establishing that those actions were “because of’ .discriminatory intent under the NYCHRL. The court-therefore GRANTS Defendant’s motion for summary judgment on. Plaintiffs adverse-employment-action discrimination claim.
2. Discrimination—Harassment Theory
Defendant next contends that Forrester I also precludes Plaintiffs claim that it harassed her because of her disability. (Def. Mem. at 13; Def. Reply at 9-10 & nn.8-9.) In Forrester I, the court granted summary judgment on Plaintiffs hostile-work-environment claim, noting both that Plaintiff had failed to establish that her mistreatment rose to the “severe or pervasive” level required for it to be actionable under the ADA (M & O at 14-16, 21-22) and that she had not shown “how Defendants’ actions—the vast majority of which are facially neutral—relate in any way to her medical condition” (id. at 16). The court also concluded that, even though Judge Bloom had not expressly considered certain evidence that Yussuff was “hostile to [Plaintiff] ... [and] demeaning and insulting” in meetings, this evidence would not affect the court’s analaysis because Plaintiff had not shown “any connection between Yussuff s purported mistreatment of Plaintiff and her disability.” (Id. at 22.) As Defendant concedes, the court’s determination that Plaintiff had not shown “severe or pervasive” mistreatment is-, not preclusive, because the NYCHRL forbids discriminatory treatment regardless of whether such treatment is “severe or pervasive.” See Williams, 872 N.Y.S.2d at 40-41, (Def. Reply at 3.) Defendant argues, however, that, regardless of how severely Plaintiff was mistreated,, she is precluded from arguing that this mistreatment was because of her disability. (Def. Mem. at 12-13.)
The court agrees that Forrester I precludes Plaintiff from relitigating the issue of whether she was harassed at least partly because of her disability. The question of whether Defendant’s treatment of Plaintiff was -motivated by discrimination was raised and litigated in Forrester I: Defendant’s motion for summary judgment focused on this issue (Forrester I Def. Mem. at 16-36), arguing that Yussuff, .whose al
The court-concludes that Defendant has carried its burden of showing that the issue of the whether Defendant mistreated Plaintiff because of her disability is identical as between the two actions. In order to establish the existence of a hostile work environment under the ADA, Plaintiff needed to show that “she was harassed because of her” disability. See Monterroso v. Sullivan & Cromwell, LLP, 591 F.Supp.2d 567, 584 (S.D.N.Y. 2008). Likewise, to establish harassment in violation of the NYCHRL, Plaintiff must show that Defendant treated her less well because of her disability. Mihalik, 715 F.3d at 110. Although the court in Forrester I did not expressly discuss the causation standard and evidentiary frameworks applicable to ADA hostile-work-environment claims, it should be remembered that “hostile work environment” is simply a theory by which a plaintiff may show discrimination. In Forrester I, the court extensively discussed the causation standard and evidentiary frameworks applicable to ADA discrimination claims in the context of Plaintiffs adverse-employment-action claim, and there is no indication that it subjected Plaintiffs hostile-work-environment claim to a more rigorous causation standard or cabined the means by which she could demonstrate the existence of a genuine dispute as to whether Defendant subjected her to a hostile work environment because of her disability. In the absence of any meaningful response by Plaintiff to Defendant’s arguments on this point, the court is satisfied that this issue is identical as between the two actions, (Def. Mem. at 12-13; PI. Opp’n at 39-42.)
The court concludes that its determination in Forrester I that Plaintiff had not shown that Defendant mistreated her because her disability is entitled to preclusive effect. Plaintiff is therefore precluded from establishing that she was harassed because of her disability. Consequently, the court GRANTS- Defendant’s motion for summary judgment on Plaintiffs harassment claim..
3. Retaliation
Lastly, the‘court considers whether'its judgment in Forrester I precludes Plaintiff from asserting her' retaliation claim under the NYCHRL. In Forrester I, the court determined that Plaintiff had failed to make the requisite evidentiary showing- to-survive summary judgment on her ADA retaliation claim. (M & 0 at 52.) In particular, the court noted that the only evidence Plaintiff had produced in support of her retaliation claim was temporal proximity between the protected activity and adverse employment actions, which was insufficient to establish that those actions were motivated by retaliation. (M & O at 52.) Although the court noted that Gross, 557 U.S. at 167,129 S.Ct.'2343, most likely required ADA discrimination claims to be analyzed using the more exacting “but-for” causation standard (id. at 27 n.12), the
Here, too, Defendant has carried its burden of establishing that issue preclusion applies. The issue of whether Plaintiffs demotion and later suspension and termination were motivated by retaliatory animus was raised, litigated, and necessary to the court’s judgment on her ADA retaliation claim. This issue is also identical to the issue of whether Defendant acted with retaliatory intent for the purposes of Plaintiffs NYCHRL retaliation claim. In order to establish retaliation under the ADA, Plaintiff needed to show that Defendant demoted, suspended, and fired her in response to her opposition to a practice forbidden under that statute—he., discrimination on the basis of disability. 42 U.S.C. § 12203(a). (Forrester I PI. Opp’n at 35.) Likewise, to establish retaliation under the NYCHRL, Plaintiff must show that she opposed Defendant’s alleged disability discrimination (PI. Opp’n at 42) and that Defendant took action against her at least partly because of a retaliatory motive. See Mihalik, 715 F.3d at 112,. 116.
Plaintiff appears to argue that NYCHRL retaliation claims differ from ADA retaliation claims because the former do not require the employer to take “material” or “tangible” adverse action against the complainant. (PI. Opp’n at 42.) This distinction is illusory. While it is true that a plaintiff must show that he or she suffered a “materially adverse” action as a result of engaging in protected conduct in order to make out a prima facie case of retaliation under the ADA, Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012), that does not mean that only demotions, terminations, and similar events constitute “retaliation.” (PI. Opp’n at 42.) Instead, an allegedly retaliatory action is “materially adverse” when it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Ragusa v. Malverne Union Free Sch. Dist., 381 Fed.Appx. 85, 90 (2d Cir. 2010) (summary order) (alterations omitted and emphasis added) (quoting Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010)). This standard tracks the NYCHRL, under which retaliatory action “need not result in an ultimate action with respect to employment ... or in a materially adverse change in the terms or conditions of employment” but nevertheless “must be reasonably likely to deter a person from engaging in protected activity,” including complaints that discrimination is wrong. N.Y.C. Admin. Code § 8-107(7) (emphasis added). The court is satisfied that the issue considered in For-rester I as to whether Plaintiffs demotion, suspension, or termination were motivated by retaliatory animus is identical to the issue presented in this case.
Because these issues are identical, issue preclusion applies, and Plaintiff is barred from establishing that her demotion, suspension, or ultimate termination were at
C. NYCHRL Retaliation—2010 Termination
In opposition to Defendant’s motion for summary judgment, Plaintiff now also argues that her October 2010 initial termination was also retaliatory. (PI. Opp’n at 42.) Because she did not raise this argument in Forrester I (cf. Forrester I PL Opp’n at 35-38), the court never considered it, and the court’s determination that Defendant did not act with a retaliatory motive in demoting, suspending, and ultimately firing her does not preclude this claim. The court need not consider whether the doctrine of claim preclusion
Plaintiff contends that she first opposed her alleged disability discrimination in May 2010, when she claims that she called Donahue to complain that she was “tired of [Yussuff] harassing [her] about [her] FMLA [and her] ADA” and wanted to make a formal complaint. (PI. Dep. 232:20-233:3.) In May 2010, Plaintiff also sent FMLA anti-retaliation regulations to Donahue. (May 17, 2010, Email from PI. to Donahue (Bernstein Deck, Ex. 57 ,(Dkt. 39-3)).) Plaintiff contends that a jury could infer that PHS (and thus, Defendant) was motivated by retaliation when it terminated her five months later from the temporal proximity of her termination to her complaints and from evidence that, she argues, shows that Defendant’s stated reasons for firing her were pretextual: (1) this termination predated her poor performance review and the Department of Health’s criticisms of the operation of the NIC; (2) Plaintiff had a long history of positive performance reviews; and (3) other NIC leaders removed from their positions as part of the Spring 2011 restructuring were transferred to other positions, not fired. (PI. Opp’n at 43.)
Even assuming that Plaintiffs complaints that Yussuff was harassing her for taking FMLA leave sufficiently “made clear” that she was objecting to Defendant’s alleged disability discrimination, Al-burno, 922 N.Y.S.2d 244,947 N.E.2d at 138, Plaintiff has not shown the existence of a triable issue as to whether her initial termination was retaliatory. Defendant produced ample evidence that it initially terminated Plaintiff as part of a plan, developed to address Department of Health complaints about the operations of the NIC, which called for her position to be converted to a clinical role. (Def. Rule 56.1 Statement ¶¶ 80-83, 87-98;
Because there is no genuine dispute of material fact as to whether Plaintiffs initial termination was motivated by retaliation, the court GRANTS Defendant’s motion for summary judgment on Plaintiffs retaliation claim to the éxtent it is based on heir initial termination.
Y. CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment (Dkt. 37) is GRANTED. The Clerk of Court is respectfully DIRECTED to enter judgment for Defendants and to close this case.
SO ORDERED.
. For ease of reference, the court refers to Prison Health Services, Inc,, as “PHS”; Cori-zon Health, Inc., as "Corizon”; North Infirmary Command as “NIC”; Plaintiff's ADA, ADEA,- and' FMLA claims as her “federal claims”;, and Plaintiff’s former suit, before this court, Forrester v. Prison Health Services, Inc., No. 12-CV-363 (NGG) (E.D.N.Y.), as "Forrester I.” in 2011, PHS’s parent company merged with another company to create Corizon; (Mem. & Order (“M & O”) (Forres-ter I Dkt. 81) at 2 n.2.)„ ■
. In response to the Defendant's motion for summary judgment, Plaintiff "withdrew” her ADEA claims. (R & R at 1 n.2; M & O at 10 n,4.) She has not asserted age-discrimination claim's in this action.
. The NYCHRL recognizes both adverse employment actions and workplace harassment as forms of discrimination, See Williams v. New York City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 40 (2009).
. Defendant contends that becausé this is a diversity cáse, New York law supplies the relevant standard for issue preclusion. (Def. Mem. of Law at 5 n.l.) Because Forrester I was decided by a federal court under its jurisdiction to hear cases.arising under federal law, however, the preclusive effect of the court’s judgment in that case is determined by federal, not state law. See Taylor v. Sturgell, 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008); 18B Charles A. Wright et al, Federal Practice & Procedure § 4468, pp. 63-66 (2d ed. 2002) (‘.'Wright & Miller") (“[F]e’detal law controls the preclusion effect of a federal-question judgment in a subsequent diversity action.”). Nothing turns on this .distinction, however, because there is ‘‘no discernible difference between federal and New York law concerning res judicata and collateral estoppel.” Marvel Characters, Inc., 310 F.3d at 286.
. It remains an open question in this circuit whether the ADA provides a cause of action for hostile work environment See Bonura v. Sears Roebuck & Co., 62 Fed.Appx. 399, 400 n.3 (2d Cir. 2003) (summary order) (reserving this question but noting that other circuits have held that hostile-work-environment claims are cognizable under the ADA); Sefovic v. Mem'l Sloan Kettering Cancer Ctr., No. 15-CV-5792 (PAC), 2017 WL 3668845, at *7 (S.D.N.Y. Aug. 23, 2017) (noting that this question remains unsettled).
. The court observes again, however, that the McDonnell Douglas and -mixed-motives frameworks ask the same ultimate question: “whether Plaintiff presented ‘sufficient admissible evidence from which a rational finder of fact could infer that more likely than not she was the victim of intentional discrimination.’ ” (M & O at 28 (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 447 (2d Cir. 1999)).)
. During her deposition, Plaintiff stated that during the May 2011 meeting at which she was given the option of being demoted or fired, Doherty asked her if she had ever thought about “going out on disability.” (PL Dep. 330:14-18.) She subsequently stated that she could not remember whether Doherty mentioned disability first or whether he instead mentioned disability iri response to her first mentioning her health (id- 330:24-332:16), as Doherty indicated (M & O at 37), The court concluded that Doherty’s, comment about her disability did not show that Plaintiff's demotion lacked a legitimate, nondiscriminatory basis. (Id.)
. The court notes that, in arguing that the NYCHRL simply tracks federal discrimination law, Defendant relies on cases that predate the Restoration Act or that themselves erroneously rely on cases decided prior to the' Restoration Act. (Def. Mem. at 8.) ;■ -
. In any event, the court identifies no mean-, ingful distinction between federal and city law ■ on this point. In a federal mixed-motives case, ■ the plaintiff's initial burden is simply, to pres- • ent "evidence sufficient to demohstrate that discrimination was 'in fact a ‘motivating’ or 'substantial' factor in the employment decision." Vahos v. Gen. Motors Corp., No. 06-CV-6783 (NGG), 2008 WL 2439643, at *5 (E.D.N.Y. June 16, 2008) (quoting de la Cruz v. New York City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 23 (2d Cir. 1996)). Likewise, under' the NYCHRL, the plaintiff must “come forward with ..evidence—ci-ther direct or circumstantial—from which it could be inferred that ... discriminatipn was a ■ motivating factor, even in part, for [the defendant’s] treatment of [him or] her.” Melman, 946 N.Y.S.2d at 41.
. Plaintiff also argues that because the NYCHRL applies to employment actions that are not "material,” the court must consider her 2011 suspension and termination separately. (Pi. Opp'n 43.) Considering these events separately does not alter the court’s determination that Plaintiff failed to show that.these actions were at least partially motivated by retaliatory intent.
. This doctrine, also known as res judicata, provides that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000).
. Plaintiff’s objections to the consideration of this evidence are also without merit. Yus-suff’s and Doherty’s deposition testimony about what they were told by the Department of Health is not hearsay because it is not offered for the truth of the matter asserted (i.e„ that the NIC was poorly run), but to show that the Department of Health was concerned about the operation of the NIC. Additionally, Plaintiff’s response to Defendant’s Rule 56.1 statement relies heavily on an impermissible "omnibus objection,” see Local Rule 56.1(c), and conclusory denials unsupported by citations to admissible evidence, see Local Rule 56.1(d).