6:22-cv-00123 | Omnilex

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHRISTINA PETRIE,
Plaintiff,
v.
NEW YORK STATE OFFICE OF MENTAL
HEALTH CENTRAL NEW YORK
PSYCHIATRIC CENTER, et al.,
Defendants.
6:22-cv-123
(ECC/ML)
Joseph A. DeTraglia, Esq., for Plaintiff
Stacey A. Hamilton, Asst. Att’y Gen., for Defendants CNYPC, Helmer and Palmer
Frank Policelli, Esq., for Defendant Calkins
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
Plaintiff Christina Petrie brings this employment discrimination action against Defendants
New York State Office of Mental Health Central New York Psychiatric Center (CNYPC), CNYPC
Director of Nursing Lisa Helmer, CNYPC Assistant Director of Nursing Rosemary Palmer, and
Scott Calkins. 	Dkt. No. 4. 	Plaintiff alleges the Defendants subjected her to a hostile work
environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq., the Equal Protection Clause of the Fourteenth Amendment,
42 U.S.C. § 1983, and the New York State Human Rights Law (NYSHRL), N.Y. Exec. Law § 290
et seq. Id. at ¶¶ 95-117. Presently before the Court is Defendants CNYPC, Helmer, and Palmer’s
(collectively, the Moving Defendants) motion for summary judgment, and Plaintiff’s motion for
partial summary judgment, under Rule 56 of the Federal Rules of Civil Procedure. Dkt. Nos. 68,
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70, 71, 73, 74, 75, 76, 77, 79. The motions are fully briefed. Dkt. Nos. 82, 83, 84, 85, 86, 87, 93,
94, 95, 97. For the following reasons, the Moving Defendants’ motion for summary judgment is
granted in part and denied in part, and Plaintiff’s motion for partial summary judgment is denied.
II. FACTS1
In August 2019, Plaintiff was hired by CNYPC for the position of Registered Nurse 1 and
began employment as a probationary employee. Dkt. No. 85 ¶¶ 1, 2. Defendant Scott Calkins,
who at the time was employed by CNYPC as a Registered Nurse 2, trained Plaintiff during her
period of formal orientation in the summer and fall of 2019. Dkt. No. 83 ¶¶ 6, 10. After completing
orientation, Plaintiff began regularly working the 3:00 PM to 11:30 PM shift. Id. at ¶ 7. Calkins
worked the same shift. Id. at ¶ 31.
Plaintiff asserts that between November 2019 and January 2020, Calkins engaged in a
series of sexually harassing behaviors, including grabbing Plaintiff’s hand and rubbing her
wedding band, stroking Plaintiff’s face, rubbing Plaintiff’s head and face, sexually commenting
on Plaintiff’s body, inviting Plaintiff to sit on his lap and asking Plaintiff if she was a “cuddler,”
hugging Plaintiff with unzipped pants, repeatedly asking Plaintiff to accompany him to the gym,
and frequently visiting Plaintiff and calling her at work without a work-related purpose. Dkt. No.
83 ¶ 8. Plaintiff asserts that this behavior interfered with her ability to perform her job. Id. at ¶ 9.
On January 22, 2020, Plaintiff informed nonparty CNYPC Nurse Administrator Kathleen
Zielinski (NA Zielinski) that Calkins had engaged in sexually harassing behavior toward her. Dkt.
1 The facts are drawn from Plaintiff’s Statement of Material Facts, Dkt. No. 70-1, and Response
to Defendants’ Statement of Material Facts and Statement of Additional Material Facts, Dkt. No.
85, as well as Defendants’ Statement of Material Facts, Dkt. No. 73, and Response to Plaintiff’s
Statement of Material Facts, Dkt. No. 83, to the extent the facts are well-supported by pinpoint
citations to the record, as well as the exhibits attached thereto and cited therein.
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No. 83 ¶ 13. The following day, NA Zielinski emailed, among other people, Defendants Director
of Nursing Lisa Helmer and Assistant Director of Nursing Rosemary Palmer, notifying them of
Plaintiff’s complaint. Id. at ¶ 14; Dkt. No. 85 ¶ 83. Helmer advised NA Zielinski that she was
required to “report this information.” Dkt. No. 85 ¶ 84. Plaintiff asked NA Zielinski not to report
the complaint, but on January 23rd NA Zielinski contacted and left a message with the Governor’s
Office of Employee Relations (GOER) Affirmative Action Administrator for CNYPC to report
the information conveyed by Plaintiff. Id. at ¶ 86. Helmer followed up with NA Zielinski on
January 28th , who had not yet received a response from GOER. Id. at ¶ 87. Helmer directed NA
Zielinski to complete the discrimination/harassment complaint form available on the CNYPC
homepage and submit it to GOER. Id. The same day, Helmer sent an email to nonparty CNYPC
human resource (HR) representative Heather Adamo to ensure that HR was aware of Plaintiff’s
complaint. Id. at ¶ 89. GOER acknowledged receipt of the complaint on February 7, 2020. Dkt.
No. 85 at ¶¶ 15, 16.
Plaintiff asserts that Calkins continued to sexually harass her after January 22, 2020,
including an instance when he “rub[bed] her hair and head in an elevator, and he continued to
make her feel extremely uncomfortable at work.” Dkt. No. 83 ¶ 17. She also asserts that on
February 13, 2020, Calkins put his arms around Plaintiff and a female coworker, at which time
Plaintiff “immediately told him no hugs, and he then kissed her on the top of [her] head[.]” Id. at
¶ 19. On their lunch break that day, Calkins “sat down next to [Plaintiff] and put his arm around
her and hugged her. [Plaintiff] told him again not to hug her.” Id. at ¶ 20. Calkins later made a
comment suggesting he knew the make and model of Plaintiff’s car. Id. Later that day, Calkins
sent Plaintiff and another female coworker an email stating, “As part of the girls club I am officially
inviting you to a sleep over tomorrow after work. Food and beverages to be provided. Sorry a
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fellow gal could not make up my mind about when and what to do. RSVP, Scott.” Id. at ¶ 21.
Plaintiff asserts, and the Moving Defendants deny, that additional incidents occurred in
February 2020, including Calkins coming to Plaintiff’s office, dropping his keys on the floor, then
dancing “sexually” directly behind a female co-worker who bent over to pick up his keys, making
physical contact; and Calkins specifically waiting at a door for Plaintiff while leaving an
emergency incident at CNYPC. Dkt. No. 83 ¶ 22.
On February 18, 2020, Plaintiff filed a complaint of sexual harassment with GOER on her
own behalf. Dkt. No. 83 at ¶ 23. That day, Plaintiff also emailed a list of interactions she had with
Calkins to two CNYPC Nurse Administrators. Id. at ¶ 24. On February 25, 2020, CNYPC moved
Calkins to work in “ward 505,” which was “on a different floor on a different side” of the building
in which Plaintiff and Calkins had previously been assigned to work. Dkt. Nos. 83 ¶¶ 37, 53; 79-
8 at 2; 68-3 at 130. Plaintiff contends that because she and Calkins continued to be assigned to the
same shift in the same building at CNYPC, she had to interact with him at various times throughout
her work day, including in the sign in/sign out room at the beginning and end of every shift, in the
key pick-up room, on the nursing wards and in patients rooms, in the facility’s hallways, stairwells,
elevators, lunch room, and parking lot, and when responding to patient emergencies. Id. at ¶ 47.
Plaintiff asserts that on February 25, 2020, Calkins repeatedly called her during her work
shift “telling her that he missed her.” Dkt. No. 83 ¶ 28. On February 26 th , Helmer disagreed with
adjusting Plaintiff’s hours. Id. at ¶ 30. Plaintiff asserts that Calkins called her at work on February
29, 2020, a day that he was not working, without a work-related reason for doing so. Id. at ¶ 33.
Calkins was out of work on family medical leave from March 4 through March 27, 2020.
Dkt. No. 85 ¶ 19. Plaintiff contacted GOER on April 11 th to report “that she felt as though the
investigation had gone on too long.” Id. at ¶ 187. Plaintiff asserts that on April 28 th , she was alone
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in the sign in/sign out room with Calkins. Dkt. No. 83 ¶ 38. Plaintiff sent an email to Palmer
reporting that they had put Calkins “on this side of the building today.” Id. at ¶ 39.
On April 29, 2020, Plaintiff was informed that her next shift would be in Building 41. Dkt.
No. 83 ¶ 40. Plaintiff contends that prior to April 29th , she had regularly worked in Building 39,
which was a preferable assignment over Building 41. Id. at ¶ 41. The Moving Defendants contend
that Plaintiff did not have, and was not entitled to, a “regular” assignment at CNYPC, to the extent
that she was not hired to work a particular location within CNYPC, and she did not know where
she would be assigned on any given day and until she arrived to work and retrieved her assignment
sheet for the day. Dkt. No. 85 ¶¶ 63-67, 99-109, 129-30.
Plaintiff was out of work on leave from April 29 through May 28, 2020. Dkt. No. 85 ¶ 20.
The parties dispute the underlying reasons for Plaintiff’s leave. Id. at ¶¶ 183-84. On May 5, 2020,
Plaintiff met with state troopers to complain about the events occurring at her workplace and her
allegations against Calkins. Dkt. Nos. 83 ¶ 48; 85 ¶ 186.
Calkins was out of work on workers’ compensation leave from May 29 through June 3,
2020. Dkt. No. 85 ¶ 21. Calkins was interviewed by GOER regarding Plaintiff’s complaint on
June 4, 2020. Dkt. No. 83 ¶ 50.
On June 17, 2020, Plaintiff filed a complaint with the New York State Division of Human
Rights (NYSDHR) against Helmer, citing to a failure to protect her from retaliation at work and
retaliation for filing a complaint of sexual harassment. Dkt. No. 97-2. On July 20, 2020, GOER
issued a draft investigative report (DIR), finding that Plaintiff’s allegations that Helmer violated
agency policy prohibiting retaliation in the workplace for opposing discrimination in the
workplace was substantiated. Dkt. No. 74-10. Helmer subsequently received “formal counseling.”
Dkt. No. 83 ¶¶ 44-45.
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On July 13, 2020, GOER issued a DIR concerning Plaintiff’s complaint against Calkins,
finding that Plaintiff’s allegations that Calkins violated agency policy prohibiting sexual
harassment discrimination in the workplace were substantiated, and recommending that
administrative action be taken. Dkt. No. 74-11.
On July 17, 2020, the CNYPC HR department received a Workplace Violence Report
against Plaintiff. Dkt. No. 85 ¶ 26. A complaint was subsequently filed with GOER against the
Plaintiff. Id. at ¶ 30. GOER conducted an investigation and issued a DIR on August 13, 2020,
finding that allegations Plaintiff violated CNYPC policy were substantiated. Id. at ¶ 32.
On August 6, 2020, Plaintiff received her fourth probationary evaluation. Dkt. No. 97-1.
Out of ten categories, Plaintiff received “satisfactory” under six categories and “needs
improvement” under four categories. Id. The August 2020 evaluation also recommended that
Plaintiff continue her probation period “due to being absent from work for 29 days during this
evaluation period,” as allowed by CNYPC’s policy. Dkt. Nos. 97-1; 85 ¶¶ 7, 29, 205. Plaintiff
refused to sign the evaluation. Dkt. No. 97-1.
On August 21, 2020, Plaintiff was informed that she failed to meet the minimum standards
as a probationary employee at CNYPC, and that she was being terminated effective August 29th .
Dkt. No. 85 ¶ 33. Plaintiff requested and received a probationary termination hearing, after which
Plaintiff’s termination was confirmed. Id. at ¶¶ 35-38.
In October 2020, Plaintiff filed a second complaint with GOER against Helmer
surrounding her termination. Dkt. No. 85 ¶ 39. GOER issued a DIR in relation to this complaint
on October 23, 2020, finding that Plaintiff’s probation was extended due to the number of her
absences, and finding that significant factors in Plaintiff’s termination were Plaintiff engaging in
retaliation against a witness for engaging in protected activity, as well as performance issues. Id.
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at ¶ 44. Plaintiff contends that these findings were wrong, inasmuch that they identified pre-textual
bases for Plaintiff’s termination and did not conclude that retaliation was a “significant factor” in
her termination. Id.
On December 31, 2020, CNYPC issued a Notice of Discipline (NOD) to Calkins, listing
ten charges of misconduct and notifying him that he was suspended, without pay, effective
immediately. Dkt. No. 85 ¶¶ 45-46. The NOD indicated a proposed penalty of termination. Id.
at ¶ 47. Calkins appealed the NOD and filed a demand for arbitration pursuant to his union rights.
Id. at ¶ 48. The arbitrator ultimately found that there was just cause to discipline Calkins for two
out of the nine charges in the NOD, and held that the appropriate penalty for the proven charges
was a five-day suspension without pay. Id. at ¶¶ 49-51. On October 3, 2021, Calkins resigned
from CNYPC. Id. at ¶ 52.
III. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all submissions taken together “show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is
material if it “might affect the outcome of the suit under the governing law,” and is genuinely in
dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir.
2005) (citing Anderson, 477 U.S. at 248).
Where, as here, both parties have filed motions for summary judgment, “the court must
evaluate each party’s motion on its own merits.” Heublein, Inc. v. U.S., 996 F.2d 1455, 1461 (2d
Cir. 1993) (quoting Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 314 (2d Cir. 1981)).
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The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. The moving party may meet this burden by showing that
the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322; see also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013)
(explaining that summary judgment is appropriate where the nonmoving party fails to “‘come forth
with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on’ an
essential element of a claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d
Cir. 2010))). If the moving party meets this burden, the nonmoving party must “set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also
Celotex, 477 U.S. at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). In ruling on a
motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but
to assess whether there are any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164
(2d Cir. 2011) (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)).
“When ruling on a summary judgment motion, the district court must construe the facts in
the light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775,
780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986), and cannot rely on “mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d
9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).
Furthermore, “[m]ere conclusory allegations or denials . . . cannot by themselves create a genuine
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issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d
Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
IV. DISCUSSION
A. Defendants’ Motion for Summary Judgment
1. Title VII Claims – Individual Liability
The Moving Defendants argue that Helmer and Palmer are entitled to judgment as a matter
of law on Plaintiff’s Fifth and Sixth Claims alleging deprivation of rights under Title VII against
the Defendants in their individual capacities, as “enforceable through . . . 42 U.S.C. § 1983,”
because individuals are not subject to liability under Title VII. Dkt. No. 68-2 at 11. Plaintiff does
not address this argument in her opposition papers. Dkt. No. 86. In Plaintiff’s reply papers on her
own motion seeking partial summary judgment, Plaintiff argues that because Helmer and Palmer
each “took actions” against the Plaintiff, Plaintiff has raised a triable issue of fact to support
individual liability claims under 42 U.S.C. § 1983. Dkt. No. 95.
“A plaintiff who claims sex discrimination in public employment in violation of the
Fourteenth Amendment may bring suit pursuant to § 1983.” Naumovski v. Norris, 934 F.3d 200,
212 (2d Cir. 2019) (citing Raspardo v. Carlone, 770 F.3d 97, 113–14 (2d Cir. 2014) (“[S]tate and
local officials can be held individually liable under 42 U.S.C. § 1983 for violating the Equal
Protection Clause of the Fourteenth Amendment by discriminatory acts against those who work
under them.”)). “Such § 1983 discrimination claims parallel Title VII discrimination claims in
many respects.” Id. (citation omitted). However, despite their similarities, “§ 1983 and Title VII
claims differ in important ways.” Id. (citing Patterson v. Cty. of Oneida, 375 F.3d 206, 225–26
(2d Cir. 2004) (enumerating several differences between Title VII and § 1983 claims). Among
those “crucial distinction[s]” is that “unlike a Title VII claim, which may be brought only against
the employing entity, a § 1983 claim ‘can be brought against an[y] individual’ responsible for the
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discrimination.” Id. (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir.
2015)).
Plaintiff’s Fifth Claim is captioned “Deprivation of Rights Under Title VII Due to a Hostile
Work Environment (Violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983).” Dkt. No. 4 ¶¶
103-04. Plaintiff’s Sixth Claim is captioned “Deprivation of Rights Under Title VII Due to
Retaliation (Violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983).” Id. at ¶¶ 105-06.
Plaintiff purports to assert both her Fifth and Sixth Claim “against all defendants in their individual
capacities.” Id. at ¶¶ 103-06. While Plaintiff can, and does, plead concurrent Title VII and § 1983
claims, these claims derive from different sources of substantive rights and are not properly pled
as one. To the extent Plaintiff intends to plead a § 1983 claim against the Defendants in their
individual capacities, she does so in her Third and Fourth Claims, alleging individual liability
under § 1983 for violating the Equal Protection Clause of the Fourteenth Amendment. See Oliver
v. New York State Police, No. 1:15-cv-00444 (BKS/DJS), 2020 WL 1989180, at *45 (N.D.N.Y.
Apr. 27, 2020), aff’d sub nom. Oliver v. D’Amico, No. 22-979, 2024 WL 2013670 (2d Cir. May 7,
2024) (“‘[T]he Equal Protection Clause protects such employees from sex-based workplace
discrimination, including hostile work environments and disparate treatment,’ and retaliation.”)
(quoting Raspardo, 770 F.3d at 114).
However, as the Moving Defendants correctly assert, individuals are not subject to liability
under Title VII. See Sassaman v. Gamache, 566 F.3d 307, 315–16 (2d Cir. 2009) (dismissing Title
VII complaint with respect to the plaintiff’s former supervisor because “individuals are not subject
to liability under Title VII”); Sears-Barnett v. Syracuse Cmty. Health Ctr., Inc., 531 F. Supp. 3d
522, 535 (N.D.N.Y. 2021) (The Second Circuit has left no doubt that ‘individuals are not subject
to liability under Title VII’”) (quotation omitted). Thus, to the extent Plaintiff’s Fifth and Sixth
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Claims seek to impose individual liability under Title VII, summary judgment dismissing these
claims is warranted.2
2. Title VII – Hostile Work Environment – CNYPC
The Moving Defendants argue that Plaintiff’s Title VII hostile work environment claim
must be dismissed because the majority of Calkins’s harassing behavior occurred prior to CNYPC
receiving notice, and Calkins’s subsequent conduct was not sufficiently severe or pervasive. Dkt.
No. 68-2 at 12-24. Plaintiff disagrees. Dkt. No. 85.
To establish a hostile work environment claim under Title VII, Plaintiff must demonstrate
harassment on the basis of her sex, 42 U.S.C. § 2000e-2(a), and “that [] her workplace was ‘so
severely permeated with discriminatory intimidation, ridicule, and insult that the terms and
conditions of . . . her employment were thereby altered.’” Agosto v. N.Y. City Dep’t of Educ., 982
F.3d 86, 101 (2d Cir. 2020) (quoting Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir.
2013)). The hostile work environment standard includes “both objective and subjective
components: the conduct complained of must be severe or pervasive enough that a reasonable
person would find it hostile or abusive, and the victim must subjectively perceive the work
environment to be abusive.” Raspardo, 770 F.3d at 114. “To decide whether the threshold has been
reached, courts examine the case-specific circumstances in their totality and evaluate the severity,
frequency, and degree of the abuse.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir.
2014) (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)).
A plaintiff must also show “a specific basis for imputing the hostile work environment to
2 Although Defendant Calkins has not made a proper cross-motion for summary judgment on
Plaintiff’s Fifth and Sixth Claims asserting individual liability against him under Title VII, in the
interest of justice and for the sake of judicial efficiency this Court sua sponte grants summary
judgment in his favor as to these claims.
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the employer.” Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001). The standard for
imposing liability on an employer for workplace harassment by employees depends on the status
of the harasser:
If the harassing employee is the victim’s co-worker, the employer is liable only if
it was negligent in controlling working conditions. In cases in which the harasser
is a “supervisor,” however, different rules apply. If the supervisor’s harassment
culminates in a tangible employment action . . . the employer is strictly liable. But
if no tangible employment action is taken, the employer may escape liability by
establishing, as an affirmative defense, that (1) the employer exercised reasonable
care to prevent and correct any harassing behavior and (2) that the plaintiff
unreasonably failed to take advantage of the preventive or corrective opportunities
that the employer provided.
Vance v. Ball State U., 570 U.S. 421, 424 (2013) (citing Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 765 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998)).
To establish an employer’s negligence in controlling workplace conditions, a plaintiff must
demonstrate that her employer: (i) “failed to provide a reasonable avenue for complaint”; or (ii)
“knew, or in the exercise of reasonable care should have known, about the harassment yet failed
to take appropriate remedial action.” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (quoting
Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000)). The second basis for establishing
liability “requires a plaintiff to show that (1) someone had actual or constructive knowledge of the
harassment, (2) the knowledge of this individual can be imputed to the employer, and (3) the
employer’s response, in light of that knowledge, was unreasonable.” Duch, 588 F.3d at 763. Courts
judge whether a “response was reasonable . . . from the totality of circumstances.” Distasio, 157
F.3d 55, 65 (2d Cir. 1998).
a. 	Severe or Pervasive
“Title VII does not impose ‘a general civility code for the American workplace.’”
McNamara v. County of Saratoga, 748 F. Supp. 3d 68, 89 (N.D.N.Y. Sept. 12, 2024) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)); Russo v. New York Presby,
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972 F. Supp. 2d 429, 447 (Sept. 23, 2013 E.D.N.Y.) (“While ‘the central statutory purpose [of
Title VII was] eradicating discrimination in employment, Title VII does not set forth a general
civility code for the American workplace.’” (quoting Redd v. New York Div. of Parole, 678 F.3d
166, 176 (2d Cir. 2012))). Examples of conduct prohibited by Title VII include: “sexual assaults;
[other] physical contact[, whether amorous or hostile, for which there is no consent express or
implied]; uninvited sexual solicitations; intimidating words or acts; [and] obscene language or
gestures.” Redd, 678 F.3d at 177 (citations omitted) (alterations in original). Conduct that does not
fall under Title VII’s protection includes “occasional vulgar banter, tinged with sexual innuendo,
of coarse or boorish workers,” see id., as well as “rudeness and excessive criticism of a plaintiff or
her work,” Saraceni v. Retting, 726 F. Supp. 3d 101, 122 (N.D.N.Y. 2024) (citing Littlejohn v.
City of N.Y., 795 F.3d 297, 321 (2d Cir. 2015)). “Sex-based hostile work environment claims may
be supported by facially sex-neutral incidents and ‘sexually offensive’ acts may be facially sex-
neutral.” Moll, 94 F.4th at 229 (citations omitted).
Here, Plaintiff has offered evidence of incidents of discriminatory harassment by Calkins
beginning in November 2019 and continuing until the end of February 2020 that, when viewed as
whole and in the light most favorable to Plaintiff, could allow a reasonable factfinder to conclude
that the environment was objectively hostile and abusive. 	Specifically, Plaintiff has offered
evidence that during this period Calkins subjected her to repeated harassment including sexual
comments, unwanted touching, seeking her out and/or calling her for no work-related purpose to
tell her that he “missed” her, and sending Plaintiff an email requesting that she “sleepover” with
him. 	There is also evidence that Calkins directed lewd conduct toward another coworker in
Plaintiff’s presence. 	See Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2d Cir.
2001) (recognizing that evidence of harassment directed at other co-workers can be relevant to an
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employee’s own claim of hostile work environment discrimination, because the crucial inquiry
focuses on the nature of the workplace environment “as a whole”). The record also contains
evidence suggesting that Plaintiff found Calkins’s harassment subjectively hostile and abusive,
including reports by Plaintiff’s supervisors and/or coworkers that Plaintiff was “extremely upset
and losing sleep,” and Plaintiff’s contention that she took an extended period of leave in May 2020
due, in part, to the continued harassment.
The Moving Defendants argue that the proper inquiry on summary judgment is whether,
and to what extent, Calkin’s purportedly harassing conduct occurred after notice was provided to
CNYPC; and whether that post-notice conduct was severe or pervasive enough to establish a
hostile work environment. This argument is misplaced. While relevant to the inquiry of whether
Calkins’s conduct can properly be imputed to CNYPC, Plaintiff is not so limited in establishing
whether the work environment was sufficiently severe or pervasive to alter the conditions of
Plaintiff’s employment and create an abusive working environment. In sum, Plaintiff has raised a
genuine issue of material fact as to whether she suffered a gender-based hostile-work environment.
b. Imputing Conduct to CNYPC
Having found that a reasonable jury could find the existence of a hostile work environment,
the Court must determine whether Plaintiff has produced evidence providing “‘a specific basis for
imputing the conduct creating the hostile work environment to” CNYPC. Bentley v. AutoZoners,
LLC, 935 F.3d 76, 90 (2d Cir. 2019) (quoting Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir.
2013) (internal quotation marks omitted)).
The Moving Defendants contend that for purposes of this analysis, Calkins should be
characterized as a “co-worker,” triggering the negligence standard. The Court agrees. In Vance,
the Supreme Court held that “an employee is a ‘supervisor’ for purposes of vicarious liability under
Title VII if he or she is empowered by the employer to take tangible employment actions against
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the victim.” 570 U.S. at 424. A tangible employment action constitutes a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Id. (quoting
Ellerth, 524 U.S. at 761).
Here, there is nothing in the record to suggest that Calkins was, or ever acted in the capacity
of, Plaintiff’s supervisor. At all relevant times, Plaintiff was employed by CNYPC in the position
of a Nurse I, and Calkins in the position of Nurse II. Defendants have offered evidence that Nurse
Administrators were responsible for the direct supervision of all nursing staff at CNYPC. Dkt.
Nos. 76 ¶¶ 13-14; 77 ¶ 11. Plaintiff testified that Nurse Administrator Nancy Coons was her
immediate supervisor throughout the course of her employment with CNYPC. Dkt. No. 68-3 at
81. Although Calkins was one of several Nurse II employees who trained Plaintiff during her
orientation, the record is devoid of evidence that Calkins was empowered to take any tangible
employment action against Plaintiff at any point. On this record, no reasonable juror could
conclude that Calkins was Plaintiff’s supervisor for purposes of the Title VII analysis.
Accordingly, the relevant inquiry is whether CNYPC failed to provide a reasonable avenue for
Plaintiff’s complaint about Calkins’s alleged harassment, or knew or should have known about the
harassment yet failed to take appropriate remedial action.
Plaintiff does not contend that CNYPC lacked a reasonable avenue for her complaints, and
the record establishes that CNYPC had both an anti-harassment policy and a complaint procedure
in place, which Plaintiff utilized. See Duch, 588 F.3d at 763 (holding that “no reasonable jury
could conclude that defendants failed to provide [plaintiff] with a reasonable avenue of complaint”
where employer provided “numerous alternative avenues of complaint that [plaintiff] could, and
eventually did, pursue”). The Moving Defendants’ motion therefore turns on whether, as a matter
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of law, CNYPC took appropriate remedial action in response to Plaintiff’s complaints.
“The appropriateness of an employer’s remedial action must be assessed from the totality
of the circumstances.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014). “Factors
to be considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the
nature of the employer’s response in light of the employer’s resources, and the nature of the work
environment.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir. 1998) (citation omitted).
Additionally important to the inquiry is whether the employer’s action was effective and prompt.
See Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 329 (N.D.N.Y. 2013) (“If the employer
is found to have been on notice of the sexual harassment, summary judgment is inappropriate
where there is evidence that presents an issue of fact as to whether the employer’s action was
effectively remedial and prompt.”).
There is no dispute that there came a time in January 2020 that CNYPC was put on notice
of the alleged harassment, and almost immediately submitted a formal complaint to GOER to
commence an investigation into Plaintiff’s allegations. Nevertheless, on this record a reasonable
jury could conclude that CNYPC’s remedial actions were deficient, and that CNYPC was
negligent in controlling its workplace conditions. Calkins was not interviewed in conjunction with
the investigation until four months after the initial complaint was lodged, and the entire
investigation took a total of five months before the DIR recommending administration action
against Calkins was issued. To be sure, other courts to consider the issue have found that “a
remedial action begins with the investigation, and thus the timeline to reach a conclusion is not as
determinative when the employer actively investigates the claim.” Sears-Barnett, 531 F. Supp. 3d
at 537 (citing Allen v. Babcock & Wilcocx Tech. Servs. Pantex, LLC, No. 2:12-cv-225, 2013 WL
5570192, at *11 (N.D. Tex. Oct. 9, 2013)) (noting that remedial action was prompt because
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employer began investigation by convening meeting to determine reasonable next steps).
However, the distinguishing factor in these cases is that the Plaintiff provided no evidence of
further harassment in the intervening period between complaint and remedial action, i.e. during
the investigation period. Here, Plaintiff has offered evidence that while the months-long
investigation of the complaint(s) was pending, Calkins’s harassing conduct did not abate. There
is also record evidence that, notwithstanding Calkins’s continued harassment and the concern for
Plaintiff’s well-being expressed by supervisors who worked with Plaintiff, CNYPC would not
agree to modify Plaintiff’s schedule or transfer Calkins to a different building while the
investigation was pending. Viewing the evidence in the light most favorable to the Plaintiff, a
reasonable jury could conclude that CNYPC failed to take effective remedial measures within its
control. See Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir. 2000) (“the fact that
[incidents of harassment] continued and were gender-based, if proven, is relevant to the question
of the appropriateness of the Town’s response to Howley’s complaints.”); Harlow v. Molina
Healthcare, Inc., 723 F. Supp. 3d 116, 130 (N.D.N.Y. 2024) (finding triable issue of fact as to
whether conduct may be imputed to defendant where harassment continued despite issuance of a
verbal warning). Accordingly, the Moving Defendants’ motion for summary judgment on
Plaintiff’s Title VII hostile work environment claim against CNYPC is denied.
3. Title VII – Retaliation – CNYPC
The Moving Defendants argue that Plaintiff has failed to establish a prima facie case of
retaliation, and that CNYPC has articulated legitimate, nonretaliatory reasons for any and all
actions that Plaintiff alleges were retaliatory. Dkt. No. 68-2 at 28-39. Plaintiff argues that she has
raised triable issues of material fact. Dkt. No. 86 at 4-5.
Title VII states that “[i]t shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed any practice made an
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unlawful employment practice by this subchapter, or because [s]he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” 42 U.S.C. § 2000e–3(a). Title VII retaliation claims are analyzed under the
McDonnell Douglas burden-shifting framework. See Ya-Chen Chen v. City Univ. of N.Y., 805
F.3d 59, 73–74 (2d Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807
(1973)). Under this framework, the plaintiff bears the initial burden to establish a prima facie case
of retaliation by showing evidence that: (1) she engaged in protected activity; (2) the defendant
was aware of the activity; (3) the defendant took an adverse employment action against her; and
(4) there is a causal connection between the protected activity and the adverse action. Summa, 708
F.3d at 125. If the plaintiff establishes a prima facie case, the burden shifts to the employer to
demonstrate that a legitimate, non-retaliatory reason existed for its action. Id. at 129. If the
employer demonstrates a legitimate, non-retaliatory reason for the adverse employment action, the
burden shifts back to the plaintiff to show “that the desire to retaliate was the but-for cause of the
challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).
a. Prima Facie Case
i. Protected Activity
Plaintiff argues that she engaged in protected activity in January 2020, when she
complained of workplace sexual harassment, and on June 17, 2020, when she filed a complaint
with the New York State Division of Human Rights against Helmer for failing to protect her from
retaliation at work and retaliation for filing a complaint of sexual harassment. Dkt. No. 86 at 4-5.
The Moving Defendants do not dispute that Plaintiff engaged in activity protected under Title VII
by filing these complaints, and the Court agrees that they constituted protected activity under the
statute. See Hubbard v. Total Communs. Inc., 347 F. App’x 679, 680–81 (2d Cir. 2009)
(“‘Protected activity’ includes opposition to a discriminatory employment practice or participation
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in any investigation, proceeding, or hearing under Title VII” and “a plaintiff . . . need not prove
that the conditions she protested amounted to an actual Title VII violation; she need only establish
that she had a good faith, reasonable belief that a violation occurred.” (first citing 42 U.S.C. §
2000e-3(a), and then citing Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 134 (2d Cir.
1999))). Plaintiff also filed a formal complaint of sexual harassment in February 2020, which
further constitutes protected activity under Title VII.
Further, “opposition to a Title VII violation need not rise to the level of a formal complaint
in order to receive statutory protection.” Oliver, 2020 WL 1989180, at *38 (citing Cruz v. Coach
Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)). “Instead, ‘opposition’ includes activities such as
making complaints to management, writing critical letters to customers, protesting against
discrimination by industry or by society in general, and expressing support of co-workers who
have filed formal charges.” Id. (cleaned up). Here, viewing the facts in the light most favorable to
the non-moving party, the record contains other instances that may qualify as protected activity by
Plaintiff, including her February 2020 calls and emails to supervisors reporting interactions with
Calkins, securing legal counsel to send letters to CNYPC on her behalf opposing her allegedly
retaliatory transfer in April 2020, and meeting with the New York State Police to complain about
Calkins harassment in May 2020.
ii. Awareness of Protected Activity
The Moving Defendants do not dispute that CNYPC was aware of the alleged protected
activities.
iii. Adverse Action
Plaintiff argues that she suffered an adverse action when (1) she was assigned to work in
Building 41, (2) her co-worker filed a retaliation complaint against her, (3) she received a negative
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performance review, and (4) she was terminated. Dkt. No. 86 at 4-5.3
For purposes of a Title VII retaliation claim, “an adverse employment action is any action
that ‘could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington Northern v. White, 548 U.S. 53, 57
(2006)). “This definition covers a broader range of conduct than does the adverse-action standard
for claims of discrimination under Title VII: ‘[T]he antiretaliation provision, unlike the substantive
[discrimination] provision, is not limited to discriminatory actions that affect the terms and
conditions of employment.’” Id. (quoting Burlington Northern, 548 U.S. at 64) (alterations in
original). The Supreme Court has explained that it has:
phrase[d] the standard in general terms because the significance of any given act of
retaliation will often depend upon the particular circumstances. Context matters.
“The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed.
Burlington Northern, 548 U.S. at 69 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 81–82 (1998)). To determine “whether conduct amounts to an adverse employment action,
the alleged acts of retaliation need to be considered both separately and in the aggregate, as even
minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” Hicks, 593
F.3d at 165 (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006)).
Here, the majority of the incidents alleged by Plaintiff – the retaliation complaint against
3 Plaintiff’s opposition papers do not specifically articulate her position on what constituted
adverse actions for purposes of the Court’s retaliation analysis, nor the sufficiency of any adverse
actions considered independently versus in the aggregate. To the extent Plaintiff has made passing
references to the adverse actions listed herein, the Court will consider them in its analysis.
However, as a general matter it is not the Court’s duty to make a counseled plaintiff’s case for
them by scouring the record for potential adverse actions.
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her, negative performance review, and her termination – if true, may independently amount to
adverse actions. See Buon v. Spindler, 65 F.4th 64, 79 (2d Cir. 2023) (“Examples of materially
adverse changes include termination of employment . . . .”); Herrera v. Syracuse Univ., No. 5:24-
cv-245 (AMN/ML), 2025 WL 874734, at *13 (N.D.N.Y. Mar. 20, 2025) (“[A]s a general matter,
a reasonable worker could be dissuaded from filing [a charge of discrimination] if she was
subjected to a negative performance review or “termination” of the type described by Plaintiff.”);
Millea v. Metro-N. R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (“a reasonable jury could conclude
that the letter of reprimand constitutes retaliation”).
On the other hand, Plaintiff’s assertion that she was assigned to a less desirable job duty,
even when viewing the facts in the light most favorable to her, does not independently constitute
an adverse action upon which Plaintiff can maintain her retaliation claim. In Burlington Northern,
the Supreme Court found that the reassignment of duties can constitute a retaliatory adverse action
because “[c]ommon sense suggests that one good way to discourage an employee . . . from bringing
discrimination charges would be to insist that she spend more time performing the more arduous
duties and less time performing those that are easier or more agreeable.” 548 U.S. at 70–71.
However, “[w]hether a particular reassignment is materially adverse depends upon the
circumstances of the particular case, and should be judged from the perspective of a reasonable
person in the plaintiff’s position, considering all the circumstances.” Kessler v. Westchester Cnty.
Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (quoting Burlington Northern, 548 U.S. at
71).
At the outset, the record calls considerable question into whether Plaintiff was ever
“reassigned” job duties. In response to Plaintiff’s claim that her reassignment to Building 41 was
a materially adverse action, the Moving Defendants have offered undisputed evidence that at
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CNYPC, the nursing schedule was posted daily, and each nurse had to view the nursing schedule
on a daily basis to know where they were assigned to work on that particular day. Dkt. No. 85 ¶
55. It is further undisputed that nurses hired to work at CNYPC were hired for the entire facility,
meaning that on any given day they could be assigned to, and were trained for, both the
programming in Building 39 and Building 41. Dkt. No. 85 ¶ 63. Although Plaintiff contends that
she was “regularly and routinely” assigned to Building 39, she admits that assignments “could
change,” and that when Plaintiff was hired, she was told she would work in Building 41, and in
fact had voluntarily covered shifts for other nurses in Building 41, and worked in Building 41
“many times” during her period of employment at CNYPC. Dkt. No. 85 ¶¶ 56, 96, 108, 109.
Moreover, even if the Court were to construe the facts as establishing that Plaintiff was
actually reassigned job duties, she has failed to raise a genuine dispute of material fact that the
reassignment constitutes a materially adverse action. The Moving Defendants’ evidence suggests
that Building 41 was a more desirable and preferred work location among the nurses at CNYPC,
because there was less acuity, less emergencies, and it was a less active ward. Dkt. Nos. 77 ¶¶ 35,
40, 44; 76 ¶¶ 26, 34. Plaintiff does not specifically refute this evidence, and admits that the
assignment in Building 41 would not result in any less pay to her or a change in title. Dkt. No. 85
¶ 181. Plaintiff’s only proffered basis to support a finding that an assignment to Building 41 was
materially adverse is her sworn declaration that Building 41 was a “worse job assignment than
[her] regular assignment in the south side of Building 39,” because in April 2020 COVID-19 was
“widespread” in Building 41 and the north side of Building 39. Dkt. No. 85-2 ¶¶ 3-4. However,
Plaintiff’s admission that COVID-19 exposure levels were “widespread” in both buildings
undermines her argument that an assignment to Building 41 was any more dangerous than working
in Building 39. Furthermore, Plaintiff admits that she was still voluntarily engaging in “tour
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exchanges” with other CNYPC nursing personnel in April 2020, and when Plaintiff volunteered
for a tour exchange “she did not know where her assignment would be.” Dkt. No. 85 ¶¶ 177-78.
Finally, it is undisputed that this particular assignment to Building 41 never came to
fruition. Plaintiff admits she was “returned to her previous work assignment” after being out of
work on leave in May 2020, without having taken on the assignment. Dkt. No. 85 ¶¶ 182-83. See
Jackson v. Syracuse City Sch. Dist., No. 5:19-cv-1188 (AMN/TWD), 2025 WL 255399, at *13 n.
25 (N.D.N.Y. Jan. 21, 2025) (“The fact that Plaintiff’s placement at a middle school was temporary
and reversed prior to her ever having to teach at the middle school, and that she agreed with her
ultimate placement at a high school, indicates that there was no adverse employment action under
any standard.”); Myers v. Doherty, No. 21-cv-219, 2021 WL 5599502, at *8 (S.D.N.Y. Nov. 30,
2021), aff’d, No. 21-3012-CV, 2022 WL 4477050 (2d Cir. Sept. 27, 2022) (explaining that there
was no adverse employment action in the context of a retaliation claim because although the
plaintiff was notified of a potential future transfer, the transfer did not “materialize”); see also
Durkin v. Verizon New York, Inc., 678 F. Supp. 2d 124, 139 (S.D.N.Y. 2009) (explaining that “[i]n
this Circuit, an action must actually occur to be considered an adverse employment action” and so
“the threat to demote Plaintiff does not constitute an adverse employment action and therefore
cannot support Plaintiff's claims of retaliation”) (citing Thomas v. Bergdorf Goodman, Inc., No.
03-cv-3066, 2004 WL 2979960, at *10 (S.D.N.Y. Dec. 22, 2004)). For all of these stated reasons,
Plaintiff has failed to raise a genuine dispute of material fact that her assignment to Building 41
was not so materially adverse to independently sustain her Title VII retaliation claim.
As previously discussed, alleged acts of retaliation must be considered separately and in
the aggregate, with attention paid to their context. See Burlington Northern, 548 U.S. at 69.
Accordingly, considering the alleged adverse actions altogether, including Plaintiff’s assignment
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to Building 41, and viewing them in the light most favorable to the Plaintiff, the Court cannot find
that as a matter of law that they do not add up to an adverse action that might dissuade a reasonable
employee from making or supporting a charge of discrimination. See Vega, 801 F.3d at 92 (“Some
of these actions, considered individually, might not amount to much. Taken together, however,
they plausibly paint a mosaic of retaliation and an intent to punish Vega for complaining of
discrimination.”); see also Cusher v. Mallick, No. 16-cv-1273, 2020 WL 109510, at *28 (N.D.N.Y.
Jan. 9, 2020) (“Taken together, the Court finds that the unit inspections, excessive scrutiny, and
office change to an inferior room could deter a similarly situated individual of ordinary firmness
from exercising his . . . rights.”) (internal quotation marks and citations omitted).
iv. 	Causal Connection
“A causal connection in retaliation claims can be shown either (1) indirectly, by showing
that the protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the
defendant.” Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019) (internal quotation
marks omitted); Cifra v. G.E. Co., 252 F.3d 205, 217 (2d Cir. 2001) (“The causal connection
needed for proof of retaliation ‘can be established indirectly by showing that the protected activity
was closely followed in time by the adverse action.’”) (quoting Reed v. A.W. Lawrence & Co., 95
F.3d 1170, 1178 (2d Cir. 1996)); see El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.
2010) (recognizing that “[t]he temporal proximity of events may give rise to an inference of
retaliation for the purposes of establishing a prima facie case of retaliation under Title VII”).
Here, Plaintiff has presented evidence of temporal proximity between her ongoing
complaints of harassment and retaliation, and the alleged adverse actions. For example, Plaintiff
filed her NYSDHR complaint against Helmer in June 2020, and Plaintiff’s employment was
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terminated in August 2020, approximately three months later. The Second Circuit has reasoned
that timing within this range permits an inference of causality. See Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“Though this Court has not drawn a bright line defining,
for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too
attenuated to establish causation, we have previously held that five months is not too long to find
the causal relationship.”); Summa, 708 F.3d at 125 (finding causation where there was a seven-
month gap between protected activity and adverse action); Grant v. Bethlehem Steel Corp., 622
F.2d 43, 45–46 (2d Cir. 1980) (finding causation where there was an eight month gap between
protected activity and adverse action).
The Court finds that the timing of the potential retaliatory incidents, together with the
context in which these incidents took place, is sufficient to establish a causal nexus for purposes
of establishing a prima facie case of retaliation. See Summa, 708 F.3d at 128 (“the combination of
reasonably close temporal proximity and the particular context in this case is sufficient to infer
causation in establishing a prima facie case of retaliation regarding the termination of [the
plaintiff’s] employment privileges at Hofstra.”). Accordingly, Plaintiff has established a prima
facie case of retaliation, and a presumption of retaliation arises.
b. Legitimate, Non-Retaliatory Reasons
The burden now shifts to CNYPC to show a “legitimate, nondiscriminatory reason” for the
adverse actions. McDonnell Douglas, 411 U.S. at 802. The burden “is not a particularly steep
hurdle.” Hyek v. Field Support Servs., Inc., 702 F. Supp. 2d 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., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 509 (1993)).
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i. Assignment to Building 41
CNYPC has satisfied its burden here with evidence – including affidavits from Helmer and
Palmer – that the decision to reassign Plaintiff to Building 41 was made for her benefit, to the
extent that it would limit her instances of contact with Calkins, who would remain in Building 39,
and because Building 41 was a more desirable and preferred work location among the nurses at
CNYPC, as there was less acuity, less emergencies, and it was a less active ward. Dkt. Nos. 77 ¶¶
35, 40, 44; 76 ¶¶ 26, 34.
ii. Complaint Against Plaintiff
CNYPC has further satisfied its burden at this stage with evidence offering a legitimate,
nondiscriminatory reason for the filing and substantiating of a retaliation complaint against
Plaintiff. On July 17, 2020, Plaintiff’s co-worker submitted a five-page workplace violence
reporting form complaining that, among other things, Plaintiff was engaging in continued
harassing behavior because the co-worker would not give a statement to the State Police about
Calkins’s conduct at CNYPC. Dkt. Nos. 74 ¶ 19; 74-12. CNYPC’s safety department conducted
an investigation of the complaint against Plaintiff and found that it did not meet the criteria for
workplace violence. Dkt. Nos. 74 ¶ 19; 74-13. On August 4, 2020, a complaint concerning the
same conduct was thereafter filed with GOER on the co-worker’s behalf, based on retaliation. Dkt.
No. 74 ¶ 21. On August 13 th , GOER issued a DIR finding that the co-worker’s allegations that
Plaintiff violated CNYPC’s policy prohibiting sexual harassment were substantiated. Dkt. Nos.
74 ¶¶ 21-22; 74-15. Thus, to the extent CNYPC has offered evidence that the filing and generation
of the complaint was based on that co-worker’s detailed allegations of harassing conduct by
Plaintiff, and GOER’s subsequent investigation into said allegations, which included interviews
with multiple witnesses, CNYPC has satisfied its burden at this stage.
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iii. Negative Performance Review
CNYPC has also satisfied its burden at this stage with evidence that Plaintiff’s performance
review finding that she “needed improvement” in various categories was based on Plaintiff’s
behavior and the performance of her duties, to the extent supervisory staff at CNYPC had
documented consistent issues displayed by Plaintiff concerning “proper communication in the
workplace, insubordination, and a poor attitude.” Dkt. Nos. 76-2; 76-3; 77 ¶¶ 49-51; 77-5; 77-9;
77-10; 77-11; 77-13; 77-15; 77-17.
iv. Termination
Last, CNYPC has satisfied its burden at this stage with evidence offering a legitimate,
nondiscriminatory reason for Plaintiff’s termination. Specifically, in that “based on GOER’s
findings pursuant to its investigation” of the retaliation complaint against Plaintiff, Plaintiff was
“informed that she failed to meet the minimum standards as a probationary employee at CNYPC,
and that she was being terminated[.]” Dkt. Nos. 74 ¶ 23; 74-16.
The Court finds that the Moving Defendants have offered legitimate, nondiscriminatory
reasons for the adverse actions complained of, and the “presumption of retaliation [therefore]
dissipates.” Ya-Chen Chen, 805 F.3d at 70. The burden shifts back to Plaintiff to establish “that
the desire to retaliate was the but-for cause of the challenged employment action.” Id. (citation
omitted).
c. Pretext for Retaliation
At the third stage of the McDonnell Douglas burden-shifting analysis, “a plaintiff alleging
retaliation must show that retaliation was a ‘but-for’ cause of the adverse action, and not simply a
‘substantial’ or ‘motivating’ factor in the employer’s decision.” Kwan v. Andalex Grp., LLC, 737
F.3d 834, 846–847 (2d Cir. 2013) (quoting Nassar, 570 U.S. at 348, 360). “‘[B]ut-for’ causation
does not require proof that retaliation was the only cause of the employer’s action, but only that
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the adverse action would not have occurred in the absence of the retaliatory motive.” Id. at 846.
“[A] plaintiff may rely on evidence comprising [her] prima facie case, including temporal
proximity, together with other evidence such as inconsistent employer explanations, to defeat
summary judgment at that stage.” Id. at 847. Pretext may be shown, among other things, “by
demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s
proffered legitimate” nondiscriminatory reasons for its action. Id. at 846.
Here, with respect to (1) the substantiated complaint against Plaintiff, (2) Plaintiff’s
negative performance review, and (3) Plaintiff’s termination, Plaintiff has failed to meet her burden
at this stage of the analysis. Plaintiff has not offered any direct evidence of a retaliatory animus
by CNYPC suggesting pretext, such as remarks or communications tethering CNYPC’s actions to
Plaintiff’s protected conduct. Furthermore, there is nothing in the record to suggest a retaliatory
motivation on the part of CNYPC, notwithstanding Plaintiff’s denials that she engaged in the
inappropriate conduct alleged to have given rise to these adverse actions. See Laiscell v. Bd. of
Educ., City of Hartford, No. 24-11-CV, 2024 WL 5182916, at *2 (2d Cir. Dec. 20, 2024) (“[W]hen
considering the legitimacy of an employer’s reason for an employment action, we look to what
motivated the employer rather than to the truth of the allegations against the plaintiff.”) (quoting
Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 275 (2d Cir. 2016)); see also Khazin v.
City of New York, No. 24-1236-CV, 2025 WL 1091241, at *3 (2d Cir. Apr. 8, 2025) (concluding
that plaintiff’s “vehement[] refut[ation] [of] each disciplinary charge he was issued,” without
more, was insufficient to demonstrate falsity or pretext). Nor has Plaintiff pointed the Court to
any inconsistencies or contradictions that would suggest pretext.
Plaintiff’s only argument to establish causation with respect to these adverse actions is their
temporal proximity with her protected activities. However, the Second Circuit has made clear that
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temporal proximity “alone is insufficient to defeat summary judgment at the pretext stage.” Kwan
v. Andalex Grp. LLC, 737 F.3d 834, 847 (2d Cir. 2013). In the absence of any additional evidence,
no factfinder could reasonably determine that Plaintiff’s protected activities were the but-for cause
of these adverse actions. See, e.g., Carr v. New York City Transit Auth., 76 F.4th 172, 182 (2d Cir.
2023) (concluding that although the plaintiff’s “needs improvement” performance reviews
constituted materially adverse actions, her claim failed at the third step because she could offer
nothing more than temporal proximity to establish causation).
Because Plaintiff cannot establish pretext for the above referenced actions, and because
Plaintiff’s assignment to Building 39 does not independently constitute a material adverse action,4
the Moving Defendants are entitled to summary judgment on Plaintiff’s Title VII retaliation
claims.
4. Section 1983 – Equal Protection
The Moving Defendants seek dismissal of Plaintiff’s Equal Protection claims brought
pursuant to 42 U.S.C. § 1983 on the following bases: (1) The Eleventh Amendment bars Plaintiff’s
Equal Protection claim against CNYPC, (2) Plaintiff cannot raise a triable issue of fact to support
individual liability against Helmer and Palmer under section 1983, and (3) Plaintiff’s Equal
Protection claims are duplicative of her Title VII claims. Dkt. No. 68-2 at 39-43. Plaintiff fails to
respond to any of these arguments in opposition to the motion. Dkt. No. 86. In her reply papers
to her own motion for partial summary judgment, Plaintiff contends that she has raised triable
issues of fact to support individual liability against Helmer and Palmer, because they each took
4 See Tromblee v. New York State Off. for People with Developmental Disabilities, No. 1:19-cv-
00638 (BKS/CFH), 2023 WL 2655471, at *23 (N.D.N.Y. Mar. 27, 2023) (“Given the aggregate
nature of Plaintiff’s claim, she must logically show but-for causation for each action.”).
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actions against her. Dkt. No. 7-8.
a. 	Eleventh Amendment Immunity
“The Eleventh Amendment prohibits the ‘Judicial power of the United States’ from
extending to ‘any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.’” In re Deposit Ins.
Agency, 482 F.3d 612, 617 (2d Cir. 2007) (quoting U.S. Const. amend. XI.). “This jurisdictional
bar also immunizes a state entity that is an ‘arm of the State.’” In re Deposit Ins. Agency, 482 F.3d
at 617 (citing N. Ins. Co. of N.Y. v. Chatham Cnty., Ga., 547 U.S. 189 (2006)); see also Kisembo
v. New York State Off. of Child. & Fam. Servs., 285 F. Supp. 3d 509, 519 (N.D.N.Y. 2018) (“‘As
a general rule, state governments and their agencies may not be sued in federal court unless they
have waived their Eleventh Amendment immunity or there has been a valid abrogation of that
immunity by Congress.’” (quoting Jackson v. Battaglia, 63 F. Supp. 3d 214, 219–20 (N.D.N.Y.
2014)).
Courts in this Circuit have repeatedly stated that OMH and CNYPC are arms of the state.
See Abdul-Matiyn v. Pataki, No. 9:06-cv-1503 (DNH/DRH), 2008 WL 974409, at *14 (N.D.N.Y.
Apr. 8, 2008) (CNYPC “is an arm of the state” for Eleventh Amendment purposes); Harvey v.
Sawyer, No. 09-cv-598 (FJS/DRH), 2010 WL 3323665, at *10 (N.D.N.Y. July 22, 2010) (noting
that psychiatric centers such as CNYPC “have also been deemed arms of the state and protected
by the Eleventh Amendment”); Whitley v. Dill, No. 9:25-cv-0896 (ECC/PJE), 2025 WL 2306506,
at *2 (N.D.N.Y. Aug. 11, 2025) (same). Because neither the State of New York nor its agencies
have consented to be sued in federal court under Section 1983, and Congress has not abrogated
the state’s immunity, see Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir.
1977), Plaintiff’s Equal Protection claims for damages against CNYPC are barred by the Eleventh
Amendment, and the Moving Defendants are entitled to summary judgment on this claim.
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Plaintiff’s Eleventh Claim alleges retaliation in violation of the Equal Protection Clause
under 42 U.S.C. § 1983 against all of the Defendants in their official capacities “solely for
prospective injunctive relief.” Dkt. No. 4 ¶¶ 115-17. Specifically, Plaintiff seeks to enjoin Hemler,
Palmer, and Calkins from “retaliating against Plaintiff post-employment by providing unverified
or baseless negative formal or informal employment references to potential future employers of
Plaintiff.” Id. at ¶ 117. The Moving Defendants do not distinguish this claim from Plaintiff’s
Equal Protection claims for damages in their request for summary judgment, nor do they present
any argument as to whether this claim falls under the Ex parte Young exception to Eleventh
Amendment Immunity. The Ex parte Young doctrine provides “a narrow exception” to Eleventh
Amendment immunity “that allows certain private parties to seek judicial orders in federal court
preventing state executive officials from enforcing state laws that are contrary to federal law.”
Unkechaug Indian Nation v. Seggos, 126 F.4th 822, 829 (2d Cir. 2025), cert. denied, No. 24-1240,
2025 WL 2823807 (U.S. Oct. 6, 2025) (quoting Silva, 47 F.4th at 84). “[I]n determining whether
the Ex parte Young doctrine applies . . . a court need only conduct a straightforward inquiry into
whether the complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Id. (quoting W. Mohegan Tribe & Nation v. Orange Cnty., 395 F.3d
18, 21 (2d Cir. 2004)).
Here, the Court need not determine whether the Ex parte Young doctrine applies as an
exception to Eleventh Amendment immunity with respect to Plaintiff’s claim for injunctive relief
against the Moving Defendants in their official capacities because, as further set forth below,
Plaintiff’s retaliation claims brought pursuant to § 1983 do not withstand summary judgment on
their merits.
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b. 	Duplicity of Claims
“A Title VII plaintiff is not precluded from bringing a concurrent § 1983 cause of action,
such as a claim for denial of equal protection, so long as the § 1983 claim is based on a distinct
violation of a constitutional right.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.
2004) (internal quotation marks and citations omitted). Here, Plaintiff’s Third and Fourth Claims
are brought pursuant to § 1983 and allege violations of her equal protection rights under the
Fourteenth Amendment. Dkt. No. 4 ¶¶ 99-102. Because Plaintiff’s Amended Complaint clearly
bases her § 1983 claims on violations of her constitutional rights, Defendants’ argument in this
regard is unavailing. See Richardson v. New York State Off. of Mental Health, No. 6:11-cv-1007
(GLS/ATB), 2014 WL 3818928, at *9 (N.D.N.Y. Aug. 4, 2014) (rejecting similar argument by
Defendants seeking to dismiss § 1983 claims because they are based on the same factual
allegations as Title VII claims); Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir. 1994)
(recognizing that “a § 1983 claim may be properly grounded on a violation of the Equal Protection
Clause of the Fourteenth Amendment based on sexual harassment in the workplace.”).
c. 	Individual Liability of Helmer and Palmer
“[S]tate and local officials can be held individually liable under 42 U.S.C. § 1983 for
violating the Equal Protection Clause of the Fourteenth Amendment by discriminatory acts against
those who work under them.” Raspardo, 770 F.3d at 113–14. “‘[T]he Equal Protection Clause
protects such employees from sex-based workplace discrimination, including hostile work
environments and disparate treatment,’ and retaliation.” Oliver, 2020 WL 1989180, at *45
(quoting Raspardo, 770 F.3d at 114).
Most of the standards applicable to Title VII claims, discussed in detail above, also apply
to Section 1983 equal protection claims. See, e.g., Fincher v. Depository Trust & Clearing Corp.,
604 F.3d 712, 720 (2d Cir. 2010); Patterson, 375 F.3d at 225. However, the Second Circuit has
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noted “several significant differences” between the two claims. See Patterson, 375 F.3d at 225.
As relevant to this action, and as previously alluded to, individuals may be held liable under §
1983 for certain types of discriminatory acts, unlike Title VII. 	Id. at 226 (citations omitted).
Furthermore, “although in certain circumstances a Title VII claim may be established through
proof of a defendant’s mere negligence, without a showing of discriminatory intent, a plaintiff
pursuing a claimed . . . denial of equal protection under § 1983 must show that the discrimination
was intentional.” Id. (cleaned up).
i. 	Retaliation
In the Second Circuit, “a claim for retaliation for a complaint that alleged discrimination is
actionable under § 1983” because “retaliation is a form of discrimination,” and “the elements of a
retaliation claim based on an equal protection violation under § 1983 mirror those under Title VII.”
Vega, 801 F.3d at 81. 	Thus, for the same reasons Plaintiff’s Title VII retaliation claims are
dismissed, the Moving Defendants are entitled to summary judgment on Plaintiff’s parallel § 1983
retaliation claims.
ii. 	Hostile Work Environment
While “[h]ostile work environment claims under Title VII . . . look to the circumstances of
the plaintiff’s employment, and hold the employer liable when the misconduct in the workplace is
so severe as to alter the terms and conditions of the plaintiff’s employment,” Raspardo, 770 F.3d
at 114 (citing Harris, 510 U.S. at 21), “[s]ection 1983 . . . applies by its terms only to individual
‘persons’ responsible for violating plaintiffs’ rights.” Id. Thus, “[i]n order to . . . ‘establish
individual liability under § 1983, a plaintiff must show . . . that the defendant caused the plaintiff
to be deprived of a federal right.’” Id. (citing Back v. Hastings on Hudson Union Free School Dist.,
365 F.3d 107, 122 (2d Cir. 2004). “If a defendant has not personally violated a plaintiff’s
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constitutional rights, the plaintiff cannot succeed on a § 1983 action against the defendant.” Id. at
114–15.
Traditionally, a plaintiff advancing a claim of § 1983 discrimination in the Second Circuit
would have to prove a defendant’s personal involvement by providing evidence that: (1) the
defendant was a direct participant in the alleged violation; (2) the defendant failed to correct the
violation after learning about it through a report or appeal; (3) the defendant created or allowed to
continue a policy or custom under which the violation occurred; (4) the defendant was grossly
negligent in supervising subordinates who committed the violation; or (5) the defendant exhibited
deliberate indifference by not acting on information suggesting that the violations were occurring.
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
However, the continued viability of that test for personal involvement was called into
question in Ashcroft v. Iqbal, when the Supreme Court held that “[g]overnment officials may not
be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior.” 556 U.S. 662, 676 (2009). The Second Circuit subsequently addressed any remaining
uncertainty in Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020), concluding that “there is
no special rule for supervisory liability. Instead, a plaintiff must plead and prove that each
[g]overnment-official defendant, through the official’s own individual actions, has violated the
Constitution.” Id. (internal citations and quotation marks omitted). That is to say, “[t]he violation
must be established against the supervisory official directly.”
Here, Plaintiff has failed to raise a genuine dispute of material fact concerning Defendant
Palmer’s individual liability for a hostile work environment under § 1983. Viewing the facts in
the light most favorable to the non-moving party, Palmer was made aware of Plaintiff’s initial
complaints about sexual harassment by Calkins in January 2020. Dkt. No. 83 ¶ 14. Almost
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immediately thereafter, Plaintiff’s allegations were reported to GOER for investigation. Dkt. Nos.
83 ¶ 14; 85 ¶ 14. Otherwise, on April 28, 2020, Plaintiff sent an email to Defendant Palmer
advising that Calkins was working on “[her] side of the building today.” Dkt. Nos. 83 ¶ 38; 70-2
at 21. Palmer subsequently directed the Nurse Administrator to inform Plaintiff that she “is
scheduled in building 41” for her next shift, “due to staffing needs.” Dkt. No. 79-12 at 2. Plaintiff
contends that although Nurse Administrators were responsible for preparing nurse schedules, that
“higher nursing management” was also involved in setting or adjusting schedules. Dkt. No. 85 ¶
54. Plaintiff does not allege that Defendant Palmer was directly involved in any harassing conduct.
Even assuming that Defendant Palmer’s decision to assign her to a different building contributed
to a hostile work environment, Plaintiff has failed to come forward with evidence showing that
Palmer was anything more than negligent in responding to Plaintiff’s complaints. “As the Second
Circuit has held, mere negligence in the supervision of subordinates who commit wrongful acts is
insufficient to give rise to individual liability under Sections 1981 and 1983.” Johnson v. Cnty. of
Nassau, No. 10-cv-06061, 2014 WL 4700025, at *19 (E.D.N.Y. Sept. 22, 2014) (citing Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (“At most, the Garzarellis were
negligent in maintaining their restaurant's anti-discrimination policy. Even if this were the case,
such negligence does not constitute the ‘personal involvement’ or ‘affirmative link’ necessary to
support a claim of individual liability.”)); Fellah v. City Univ. of New York, No. 20 Civ. 6423,
2022 WL 4619902, at *6 (S.D.N.Y. Sept. 30, 2022) (“Fellah has not pleaded Miller’s personal
involvement in a hostile work environment because at most his allegations establish that Miller
failed to take sufficient action to remedy Fellah’s work situation, and because they fail to allege
that she did anything to actively create a hostile work environment for Fellah. These allegations,
without more, are insufficient to allege Miller’s personal involvement under section 1983.”); cf.
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Patterson, 375 F.3d at 229 (“Personal involvement, within the meaning of this concept, includes
not only direct participation in the alleged violation but also gross negligence in the supervision of
subordinates who committed the wrongful acts and failure to take action upon receiving
information that constitutional violations are occurring.”). Accordingly, the Moving Defendants
are entitled to summary judgment on Plaintiff’s § 1983 hostile work environment claim against
Defendant Palmer.
With respect to Defendant Helmer, the record viewed in the light most favorable to Plaintiff
establishes that Helmer was also made aware of Plaintiff’s initial complaints in January 2020, and
that Helmer confirmed the allegations were forwarded to GOER for investigation. Defendant
Helmer was also aware of allegations that Calkins engaged in similar conduct with other nurse
staff. In February 2020, Helmer was made aware that Plaintiff continued to feel unsafe as a result
of Calkins’s conduct, but did not permit alteration of Plaintiff’s schedule. Calkins and Plaintiff
were, however, separated to work in different areas of Building 39. Helmer was also a part of the
decision to assign Plaintiff to work in Building 41 in April 2020.
In her opposition papers, Plaintiff entirely fails to respond to the Moving Defendants’
argument concerning the personal involvement of Defendant Helmer. See Dkt. No. 86. In
Plaintiff’s own motion for summary judgment, Plaintiff claims that in addition to the above
referenced conduct, Helmer also “threatened [Plaintiff] that she needed to work in” Building 41.
Dkt. No. 95 at 6. This factual allegation does not appear with supporting evidence anywhere in
Plaintiff’s Response to Defendants’ Rule 56.1(a) Statement, Statement of Additional Material
Facts, or her own Statement of Material Facts. This representation appears to stem from Plaintiff’s
deposition testimony that during a call between Plaintiff and Helmer on April 30, 2020 concerning
Plaintiff’s objection to her assignment to Building 41, Helmer “threatened” Plaintiff by asking her,
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“do you want me to tell H.R. that you’re not coming back[?]” Dkt. No. 68-3 at 278, 280. On this
record, however, Plaintiff’s assertion that Helmer asked if she was coming back to work does not
amount to evidence supporting Helmer’s personal involvement in actively creating a hostile work
environment.
Plaintiff’s allegations concerning the personal involvement of Helmer are also most
appropriately characterized as the failure to take sufficient action to remedy Plaintiff’s work
situation. As previously discussed, these allegations are insufficient to allege personal
involvement under section 1983. Moreover, because it is undisputed by Plaintiff that Calkins was
the source of the harassment directed at Plaintiff, “a jury could not reasonably conclude that
[Palmer or Helmer’s] deliberate indifference was the but-for cause of the hostile work
environment.” Tromblee, 2023 WL 2655471, at *18 (citing Naumovski, 934 F.3d at 222
(recognizing that negligent supervision could not be the but-for cause of hostile work
environment)). Accordingly, the Moving Defendants are entitled to summary judgment on
Plaintiff’s § 1983 hostile work environment claim against Defendant Helmer.
5. NYSHRL
In her Seventh and Eighth Claims, Plaintiff alleges retaliation and a hostile work
environment in violation of the New York Human Rights Law against “all defendants in their
individual capacities.” Dkt. No. 4 ¶¶ 107-10. In her Ninth and Tenth Claims, Plaintiff alleges
aiding and abetting a hostile work environment and retaliation in violation of the New York Human
Rights Law against the same defendants. Id. at ¶¶ 111-14. The Moving Defendants seek dismissal
of these claims against Helmer and Palmer in their individual capacities, arguing that Plaintiff has
failed to establish a prima facie case that she was subjected to a hostile work environment, and that
they took appropriate remedial action to address Plaintiff’s complaints. Dkt. No. 68-2 at 22-24.
Plaintiff contends, without any further explanation, that because “the legal standard under New
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York’s Human Rights Law for hostile work environment claims was lessened for all plaintiffs . . .
in October 2019, this Court should find in favor of [Plaintiff.]” Dkt. No. 95 at 8.
It is unclear whether Plaintiff’s Amended Complaint asserts a NYSHRL claim against
CNYPC. However, even if Plaintiff did intend to assert such a claim against her employer, that
claim would not survive because CNYPC is shielded by sovereign immunity. See Doe v. NYS Off.
of Child. & Fam. Servs., No. 1:20-cv-01195 (BKS/CFH), 2021 WL 2826457, at *13 (N.D.N.Y.
July 7, 2021) (recognizing that “New York has not waived its Eleventh Amendment immunity
against NYSHRL suits for damages in federal court.”); Baez v. New York, 629 F. App’x 116, 118
(2d Cir. 2015) (“New York State has not consented to be sued in federal court under the
NYSHRL.”) (citing Pennhurst, 465 U.S. 89, 99 n. 9 (1984)).
With respect to Defendants Helmer and Palmer, under the NYSHRL an individual can be
held liable either as an employer who has “an ownership interest in the relevant organization or
the power to do more than carry out personnel decisions made by others,” or as an aider and abettor
“if they personally participate in the conduct giving rise to a discrimination claim.” Peck v. Cnty.
of Onondaga, New York, 21-cv-0651, 2021 WL 3710546, at *13 (N.D.N.Y. Aug. 20, 2021)
(quoting Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 57 (2d Cir. 2012), Feingold v. New
York, 366 F.3d 138, 158-59 (2d Cir. 2004)). “[A] coworker cannot aid and abet the employer if the
employer itself cannot be held liable.” Peck, 2021 WL 3710546, at *14 (citing Jain v. McGraw-
Hill Cos., Inc., 827 F. Supp. 2d 272, 277 (S.D.N.Y. 2011)). 5
5 “Courts within this circuit are split on the question of whether a finding that sovereign immunity
bars a claim against a plaintiff’s employer means that an individual cannot be held liable as an
aider or abettor of that state employer’s conduct.” Dawkins v. State Univ. of New York at Cortland,
No. 5:23-cv-1163 (GTS/MJK), 2024 WL 3377938, at *7 (N.D.N.Y. July 11, 2024) (comparing
cases assessing whether a dismissal of the primary NYSHRL claim against a state employer based
on sovereign immunity precludes an aider/abettor claim against an individual). For the reasons set
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Here, Plaintiff’s NYSHRL claims against Defendants Helmer and Palmer assert aider and
abettor liability. In order for a defendant to be liable as an aider and abettor, a plaintiff must first
establish the existence of a primary violation of the NYSHRL by an employer or principal.
Pompey v. Cnty. of Westchester, No. 23-cv-9337, 2025 WL 2723868, at *18 (S.D.N.Y. Sept. 24,
2025) (citing Forrest v. Jewish Guild for the Blind, 819 N.E.2d 998, 1013 (N.Y. 2004); Kelly G.
v. Bd. of Educ., 952 N.Y.S.2d 229, 232 (N.Y. App. Div. 2012); see also Benson v. Otis Elevator
Co., 557 F. App’x 74, 77 (2d Cir. 2014); Warren v. Ultimate Fitness Grp., LLC, No. 19-cv-10315,
2021 WL 4239246, at *5 (S.D.N.Y. Sept. 17, 2021).
With respect to Plaintiff’s NYSHRL claim premised on the existence of a hostile work
environment, historically “claims brought under [the NYSHRL] were analytically identical to
claims brought under Title VII.” Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 107
n.10 (2d Cir. 2011) (citations and quotation marks omitted), cert. denied, 565 U.S. 1260 (2012).
However,“[i]n August 2019, the NYSHRL was amended to eliminate the ‘severe or pervasive’
standard for such claims.” Farmer v. Shake Shack Enterprises, LLC, 473 F. Supp. 3d 309, 334 n.9
(S.D.N.Y. 2020). Because Plaintiff’s NYSHRL claim for a hostile work environment is based on
conduct occurring after October 11, 2019, the “‘more permissive [standard], omitting the
requirement that the complained-of conduct be severe or pervasive,’” is applicable. Friederick v.
Passfeed, Inc., No. 21-cv-2066, 2022 WL 992798, at *6 (S.D.N.Y. Mar. 31, 2022) (quoting
forth in Dawkins, and in the absence of any argument by the Moving Defendants as to this issue,
this Court declines to preclude Plaintiff’s aider/abettor claims against Defendants Helmer and
Palmer based solely on the application of Eleventh Amendment immunity to CNYPC.
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Moazzaz v. MetLife, Inc., No. 19-cv-10531, 2021 WL 827648, at *8 (S.D.N.Y. Mar. 4, 2021)). In
any event, to the extent the Court finds that a genuine dispute of material fact exists as to the
existence of a hostile work environment under the stricter Title VII standard, Plaintiff’s NYSHRL
claim based on an aider and abettor theory is not subject to dismissal for failure to establish a
primary violation of a hostile work environment.
This is not the case for Plaintiff’s NYSHRL aiding and abetting claims based on retaliation.
Until October 11, 2019, employment retaliation claims asserted under Title VII and the NYSHRL
were identically analyzed. Qorrolli v. Metro. Dental Assocs., 124 F.4th 115, 122 n. 2 (2d Cir.
2024) (“‘The standards for evaluating . . . retaliation claims are identical under Title VII and the
NYSHRL.’” (quoting Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d
10, 14 (2d Cir. 2013)). “Since the NYSHRL was amended effective October 11, 2019, NYSHRL
retaliation claims remain analytically identical to Title VII retaliation claims, yet subject to a
somewhat lesser burden insofar as the plaintiff need not plead any adverse employment action per
se, but only that ‘something happened that would be reasonably likely to deter a person from
engaging in protected activity.’” Alford v. NFTA-Metro, No. 21-cv-737, 2025 WL 1885679, at *10
(W.D.N.Y. Apr. 11, 2025), report and recommendation adopted, 2025 WL 1779101 (W.D.N.Y.
June 27, 2025) (quoting Kulick v. Gordon Property Group, LLC, 2025 WL 448333, at * 13
(S.D.N.Y. Feb. 7, 2025)).
Here, with the exception of Plaintiff’s assignment to Building 41, the Moving Defendants
are entitled to summary judgment on both the Title VII and NYSHRL retaliation claims, because
Plaintiff cannot establish a genuine dispute of material fact as to pretext. Otherwise, for the reasons
previously set forth Plaintiff’s assignment to building 41 does not meet the requirements of an
adverse employment action, even under the NYSHRL’s “somewhat lesser burden.” Thus, because
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Plaintiff has not established a primary violation of retaliation, Defendants Helmer and Palmer
cannot be held liable for aiding and abetting retaliation under the NYSHRL.
The appropriate inquiry is therefore whether a reasonable juror could conclude that
Defendants Helmer and Palmer aided and abetted a hostile work environment under the NYSHRL.
According to the language of the statute, “[i]t shall be an unlawful discriminatory practice for any
person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this
chapter, or to attempt to do so.” Exec. Law § 296(6). Individuals may be held liable under the
NYSHRL if they have “actually participated in the conduct giving rise to the claim.” Malena v.
Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 367 (S.D.N.Y. 2012) (quoting Feingold v.
New York, 366 F.3d 138, 157 (2d Cir. 2004)).
When it comes to supervisor liability, courts have held that a complete failure to investigate
or remediate can constitute “active participation” to support an aiding and abetting claim. See
Feingold, 366 F.3d at 157–158 (summary judgment denied on § 296 claims where defendants
took no action to remedy such behavior of which they were aware); Gallo v. Wonderly Co., Inc.,
No. 1:12-cv-1868, 2014 WL 36628, *8 (N.D.N.Y. 2014) (a person may be liable under § 296 for
taking no action to remedy discriminatory behavior). Other courts have further concluded that a
supervisor may be held individually liable where attempted remedial measures proved insufficient,
however this seems to be up for debate. See Warren v. Ultimate Fitness Group, LLC, No. 19-cv-
10315, 2021 WL 4239246, at *5 (S.D.N.Y. Sept. 17, 2021) (citation omitted) (finding that
“[f]ailing to respond to others’ violations of the NYSHRL does not, without more, support aiding
and abetting liability,” but that a supervisor may be individually liable if remedial “failures allow,
or even encourage, a primary violation to continue”); Lewis v. Triborough Bridge and Tunnel
Auth., 77 F. Supp. 2d 376, 384 (S.D.N.Y.1999) (“the case law establishes beyond cavil that a
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supervisor’s failure to take adequate remedial measures can rise to the level of ‘actual
participation’ under HRL § 296(6)); but see Patrick v. Adjusters International, Inc., No. 16-cv-
2789, 2017 WL 6521251, at *6 (E.D.N.Y. Dec. 18, 2017) (citation omitted) (“efforts to remediate
. . . conduct that proved to be ineffective” do not “rise to the level of ‘active participation’ in
discrimination for which courts have previously imposed liability due to a failure to investigate”).
Here, for the reasons previously explained, Plaintiff has established a genuine dispute of
material fact as to whether Defendants’ Helmer and Palmer’s conduct in conjunction with
Calkins’s harassment “allow[ed]” the underlying hostile work environment to continue.
Accordingly, the Moving Defendants’ motion for summary judgment is denied as to Plaintiff’s
NYSHRL claims against Defendants Helmer and Palmer for aiding and abetting a hostile work
environment.
B. Plaintiff’s Motion for Partial Summary Judgment
Plaintiff seeks summary judgment on her hostile work environment claims brought
pursuant to Title VII, § 1983, and the NYSHRL, arguing that that there are “no genuine issues of
material fact as to whether Defendants’ response to her January 22, 2020 complaint of workplace
harassment was unreasonable as a matter of law.” Dkt. No. 70-21 at 8. For the reasons previously
set forth, the Moving Defendants are entitled to summary judgment on Plaintiff’s § 1983 claims,
thus Plaintiff’s motion is denied to this extent. Plaintiff’s motion for summary judgment is also
denied as to her individual capacity Title VII hostile work environment claims because, as
previously set forth, such claims are not permitted under the federal statute.
To the extent Plaintiff seeks summary judgment on her § 1983 and NYSHRL hostile work
environment claims against Defendant Calkins, she has entirely failed to articulate any argument
or basis on which summary judgment should be awarded, and the Court declines to do so on
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Plaintiff’s behalf.6 See Sands Harbor Marina Corp. v. Wells Fargo Ins. Services of Oregon, Inc.,
No. 09-cv-3855, 2013 WL 5295713, at *4 (E.D.N.Y. Sept. 18, 2013) (“It is not this Court’s
obligation to make a party’s arguments for it or fill in the blanks on that party’s behalf.”); Chui v.
Am. Yuexianggui of Li LLC, No. CV-18-5091, 2021 WL 4482656, at *3 (E.D.N.Y. July 26, 2021)
(“The Court is not responsible for developing arguments on a party’s behalf or addressing
conclusory claims.”). Accordingly, Plaintiff’s motion is denied in this respect.
With respect to Plaintiff’s surviving (1) Title VII hostile work environment claim against
CNYPC, and (2) NYSHRL claims for aiding and abetting a hostile work environment against
Defendants Helmer and Palmer, for the reasons previously set forth there are genuine issues of
material fact as to whether Plaintiff suffered a gender-based hostile work environment, who
created or permitted that environment to continue, and whether such conduct can be imputed to
CNYPC. Accordingly, Plaintiff’s motion for summary judgment on these claims is denied.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that the Moving Defendants’ motion for summary judgment, Dkt. No. 68, is
GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff’s motion for partial summary judgment, Dkt. No. 70, is
DENIED; and it is further
6 Plaintiff’s notice of motion seeks an “order granting partial summary judgment in favor of
Plaintiff and against Defendants on Plaintiff’s First, Third, Fifth, Seventh and Ninth Claims set
forth in her First Amended Complaint.” Dkt. No. 70 at 1. However, the single argument raised in
Plaintiff’s Memorandum of Law is limited to the “defendants’” purported deficiency in responding
to Plaintiff’s complaints.
Case 6:22-cv-00123-ECC-MJK Document 98 Filed 01/21/26 Page 43 of 44

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ORDERED that Plaintiff’s Second Claim asserting retaliation in violation of Title VII is
DISMISSED as against Defendant CNYPC, and it is further
ORDERED that Plaintiff’s Third, Fourth, and Eleventh Claims asserting violations of
Plaintiff’s equal protection rights under §1983 are DISMISSED as against Defendants CNYPC,
Helmer and Palmer, and it is further
ORDERED that Plaintiff’s Fifth and Sixth Claims asserting Title VII liability against
Defendants Helmer, Palmer, and Calkins in their individual capacities are DISMISSED, and it is
further
ORDERED that Plaintiff’s Seventh and Eighth Claims asserting violations of the
NYSHRL are DISMISSED as against Defendants CNYPC, Helmer and Palmer, and it is
further
ORDERED that Plaintiff’s Tenth Claim for aiding and abetting retaliation in violation of
the NYSHRL is DISMISSED as against Defendants CNYPC, Helmer and Palmer; and it is
further
ORDERED that the following claims shall proceed to trial: 1) Plaintiff’s Title VII hostile
work environment claim against Defendant CNYPC, 2) Plaintiff’s NYSHRL claims against
Defendants Helmer and Palmer for aiding and abetting a hostile work environment, and 3)
Plaintiff’s remaining claims against Defendant Calkins.
IT IS SO ORDERED.
Dated: January 21, 2026
Case 6:22-cv-00123-ECC-MJK Document 98 Filed 01/21/26 Page 44 of 44

Petrie v. New York State Office of Mental Health Central New York Psychiatric Center et al

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