Smith v. Dolgen New York, LLC

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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SAMANTHA SMITH,
Plaintiff,
-v- 	1:23-CV-1425 (DNH/PJE)
DOLGEN NEW YORK, LLC,
Defendants.
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APPEARANCES: 	OF COUNSEL:
EISENBERG & BAUM, LLP 	ANDREW M. CLARK, ESQ.
Attorneys for Plaintiff
24 Union Square East, 4th Floor
OGLETREE DEAKINS 	DARIUS WALKER, JR., ESQ.
Attorneys for Defendant
401 Commerce Street, Suite 1200
Nashville, NT 37219-2446
DAVID N. HURD
United States District Judge
DECISION & ORDER
I. 	INTRODUCTION
On November 15, 2023, plaintiff Samantha Smith (“plaintiff”) filed this
action under 42 U.S.C. § 1981 and related state law against her former em-
ployer, defendant Dolgen New York, LLC (“defendant”). Dkt. No. 1. Defendant
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answered, Dkt. No. 6, and the parties attempted mediation, Dkt. No. 16. When
that failed, Dkt. No. 19, they completed a period of discovery, see Dkt. No. 23.
On March 31, 2025, defendant moved for summary judgment. 	Dkt. No.
24. The motion has been fully briefed, Dkt. Nos. 25, 26, 27, and will be consid-
ered on the basis of the submissions without oral argument.
II. 	BACKGROUND
The following facts are taken from a comparison of the parties’ Local
Rule 56.1 Statements. 	Dkt. Nos. 24-2, 25-1. 	Because plaintiff is the non-mo-
vant, the Court will adopt plaintiff’s version of events (to the extent those
events are supported with non-conclusory citations to the record in accordance
with the requirements of Local Rule 56.1).
Plaintiff is a white female. 	Pl.’s Facts ¶ 12. 	She is married to a black
male. 	Id. 	The couple have “biracial” children. 	Id. 	Defendant is a limited
liability corporation (“LLC”) that does business as “Dollar General,” a national
chain of retail stores with corporate headquarters in Tennessee. See id. ¶ 1.
On October 5, 2022, defendant hired plaintiff as a Store Manager Candi-
date (“SCM”). Pl.’s Facts ¶ 13. She trained for two weeks and was assigned to
defendant’s Johnston, New York location (the “Store”). Id. ¶ 14. Shortly there-
after, defendant hired Joshua Southworth (“Southworth”) as the Store Man-
ager (“SM”) at that location. Id. ¶ 15. SM Southworth identifies as “biracial.”
Id. ¶ 16. His child is black. Id.
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Plaintiff reported directly to SM Southworth. Pl.’s Facts ¶ 15. In Janu-
ary of 2023, SM Southworth began making “sexually charged comments” to-
ward plaintiff. Id. ¶ 24. For instance, SM Southworth “would ask her on dates,
tell her that he was not happy at home, and tell her that he wanted friends
with benefits, which she declined.” Id. ¶ 25. SM Southworth would also try to
buy her food, id. ¶ 26, ask her to go to the bar, id. ¶ 27, ask her on more dates,
id., tell her she was beautiful, id. ¶ 30, and “follow her around the store and
purposely brush up against her when she bent over,” id. ¶ 28. 	According to
plaintiff, he would also “rub[ ] his penis across her buttocks.” See id.
Plaintiff was not interested in any of SM Southworth’s advances. 	Pl.’s
Facts ¶ 32. 	She told him that his behavior was inappropriate and made her
uncomfortable. 	Id. ¶ 33. 	In March of 2023, SM Southworth “began making
racially disparaging comments about [plaintiff’s] family.” 	Id. ¶ 38. 	Although
SM Southworth never met plaintiff’s husband, she did bring her children to
the Store at least once, which prompted SM Southworth to state: “Wow, I didn’t
know your kids were black, you’re married to a [black] man?” Id. ¶ 39.
Thereafter, SM Southworth began to “make jokes,” such as “Oh, you like
brothers, you can go cash them out,” which plaintiff understood to mean that
she liked black men. 	Pl.’s Facts ¶ 40. 	He also made disparaging comments
about black men, such as “I can’t believe you are married to a [black] guy, they
are dirty” and “[black] men are dirty.” Id. ¶ 42.
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Plaintiff told SM Southworth that these comments were not funny. Pl.’s
Facts ¶¶ 43–45. She told SM Southworth that she did not want to hear these
comments. Id. She also told SM Southworth that these comments were inap-
propriate. Id.
In late March of 2023, plaintiff reported SM Southworth’s behavior to
District Manager (“DM”) Richard Handy. 	Pl.’s Facts ¶ 46. 	DM Handy failed
to take plaintiff’s complaints seriously. See id. ¶ 47. A few days later, plaintiff
submitted a written complaint to defendant’s “portal for complaints.” Id. She
also called Regional Manager (“RM”) Jessica Smith to report SM Southworth’s
misconduct. Id. ¶ 48. RM Smith “assured” plaintiff that her complaint would
be investigated. Id. But plaintiff never heard back from RM Smith. Id.
The parties dispute the adequacy of defendant’s investigation into plain-
tiff’s complaints. 	See, e.g., Pl.’s Facts ¶¶ 49–53. 	However, the parties agree
that SM Southworth was suspended while defendant investigated him for
something. 	Id. ¶¶ 53–54. 	Thereafter, defendant issued a SM Southworth a
“Final Counseling” and closed the investigation. 	Id. ¶¶ 55–57. 	According to
plaintiff, this counseling was unrelated to her complaints about SM South-
worth’s behavior. Id. ¶ 58.
In April of 2023, plaintiff was promoted to Assistant Store Manager
(“ASM”). Pl.’s Facts ¶ 18. The timing of this event and the investigation (dis-
cussed supra) is unclear, but plaintiff continued to report directly to SM
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Southworth for a period of time. Id. ¶ 21. It is likewise unclear from the par-
ties’ offering exactly when this happened, but at some point after defendant’s
investigation into SM Southworth, plaintiff told DM Handy that she did not
want to work with SM Southworth anymore “because she was uncomfortable
working with him.” 	Id. ¶ 59. 	She requested to be reassigned to a “local store
within driving distance.” Id. ¶ 60.
DM Handy offered plaintiff hours at other local stores, but according to
plaintiff some of these opportunities did not work for her. 	See Pl.’s Facts ¶¶
61–65. 	For instance, some locations were too far away for plaintiff because of
her car troubles. Id. However, DM Handy told plaintiff she could pick up hours
at any stores that needed her assistance and plaintiff agrees that she did pick
up some of those shifts at other stores. Id. ¶ 68.
In early April (presumably of 2023), plaintiff began working as a driver
for “Spark,” a delivery service, while still employed by defendant. 	Pl.’s Facts
¶¶ 69, 76. 	Spark is a delivery company that “allows you to use your personal
vehicle to shop for orders and deliver them to customers.” Id. ¶¶ 70, 76. Plain-
tiff primarily worked for Spark to deliver Wal-Mart orders. Id. ¶ 70.
“Soon after” plaintiff started working for Spark, SM Southworth saw her
at Wal-Mart with her children. 	Pl.’s Facts ¶ 82. 	He followed her around the
store and into the parking lot. 	Id. 	“At some point,” plaintiff agreed to take a
shift at one of defendant’s stores (the parties do not bother to say where), but
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she did not show. 	Id. ¶ 71. According to plaintiff, she contracted the measles
and told the store that she was sick and could not work. Id. ¶¶ 71, 123.
Thereafter, defendant “understood” that plaintiff had “voluntarily re-
signed” after learning about her job at Spark and her no-show for this sched-
uled shift. Pl.’s Facts ¶ 72. According to plaintiff, however, defendant “termi-
nated” her because SM Southworth reported that he believed she was working
at Wal-Mart. 	Id. 	Plaintiff was officially “terminated” from defendant’s em-
ployment on May 18, 2023. Id. ¶ 73.
III. 	LEGAL STANDARD
The entry of summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and the movant is en-
titled to judgment as a matter of law.” FED. R. C IV . P. 56(a). A fact is “material”
if it “might affect the outcome of the suit under the governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 	A dispute about a material
fact is considered “genuine” when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” 	Id. 	In conducting this anal-
ysis, the court must view the facts and draw all reasonable inferences in the
light most favorable to the non-movant. 	Id. at 255. 	But there is no genuine
issue for trial “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
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IV. 	DISCUSSION
Plaintiff’s seven-count complaint asserts § 1981 claims for race discrim-
ination (Count One) and retaliation (Count Two). 	Plaintiff’s complaint also
asserts New York State Human Rights Law (“NYSHRL”) claims for disparate
treatment based on race and sex (Counts Three, Four, and Five), a hostile work
environment based on race and sex (Counts Four and Five), and retaliation
(Count Five). 	Finally, plaintiff’s complaint asserts a claim under New York’s
Whistleblower Labor Laws (Count Six). Plaintiff has withdrawn Count Seven,
which asserted a common-law negligence claim. See Dkt. No. 25 at 21–22.1
As an initial matter, the application of Section 1981 is slightly unusual
in this context. Section 1981 provides that “[a]ll persons within the jurisdiction
of the United States shall have the same right in every State and Territory to
make and enforce contracts . . . as is enjoyed by white citizens.” 	42 U.S.C. §
1981(a); see also CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008); St.
Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987).
“This section thus outlaws discrimination with respect to the enjoyment
of benefits, privileges, terms, and conditions of a contractual relationship, such
as employment.” 	Patterson v. County of Oneida, 375 F.3d 206, 224 (2d Cir.
2004) (cleaned up). 	As the Second Circuit has explained, Section 1981 claims
1 Pagination corresponds with CM/ECF headers.
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for employment discrimination borrow Title VII’s substantive standards.2 See
id. at 225; see also Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir.
2015); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987).
So far, so good. But plaintiff has not asserted a run-of-the-mill claim for
Section 1981 discrimination based on her own race. 	Instead, plaintiff has al-
leged Section 1981 race discrimination and retaliation claims based on her “as-
sociation” with someone else, i.e., her marriage to a black male (and her par-
entage of “biracial” children). See, e.g., Compl. ¶ 8.
Even so, this distinction does not actually make a difference. The Second
Circuit has held that Title VII covers this kind of “associational discrimina-
tion.” As relevant here, “where an employee is subjected to adverse action be-
cause an employer disapproves of interracial association, the employee suffers
discrimination because of the employee’s own race.” Holcomb v. Iona Coll., 521
F.3d 130, 139 (2d Cir. 2008) (emphasis in original).
In sum, plaintiff’s Section 1981 claims—and her NYSHRL claims, for
that matter—will be analyzed under Title VII’s “core substantive standards.”
Wiercinski, 787 F.3d at 113 (Section 1981); Chavis v. Wal-Mart Stores, Inc.,
265 F. Supp. 3d 391, 398 (S.D.N.Y. 2017) (NYSHRL).
2 There are several meaningful distinctions between Title VII and Section 1981, including the fact
that the latter provides for individual liability in certain contexts. Patterson, 375 F.3d at 226. But
plaintiff has only named her former employer as a defendant.
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Plaintiff has asserted race and sex discrimination claims on three pri-
mary theories: (1) disparate treatment; (2) retaliation; and (3) a hostile work
environment.3
1. Disparate Treatment
First, plaintiff claims that defendant treated her less favorably than oth-
ers because she is a woman married to a black man and has biracial children.
In other words, plaintiff claims “disparate treatment” based on her “race”
and/or “sex,” which can be actionable if the defendant had a discriminatory
intent or motive in taking the adverse employment-related action. 	See, e.g.,
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988).
An employer’s discriminatory intent or motive can always be proven with
direct evidence. 	See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 258
(1989). 	Direct evidence includes things like “a workplace policy, practice or
decision [that] relies expressly on a protected characteristic,” Young v. United
Parcel Serv., Inc., 575 U.S. 206, 213 (2015), or through “conduct or statements
by persons involved in the decision-making process that may be viewed as di-
rectly reflecting the alleged discriminatory attitude,” Ostrowski v. Atl. Mut.
Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992).
3 Plaintiff, who is represented by counsel, has apparently chosen not to assert a Section 1981 hostile
work environment claim. Although there is a reference to a “hostile work environment” in one of the
two Section 1981 counts in the pleading, Compl. ¶ 27, elsewhere plaintiff explains that this is a dis-
parate treatment claim based on her alleged termination from employment, see Dkt. No. 25 at 8–11.
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But an employer’s intent and state of mind are “usually unstated.” Vega
v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). 	So most
discrimination cases rely on the force of indirect proof. See Krul v. DeJoy, 705
F. Supp. 3d 5, 40 (N.D.N.Y. 2023) (collecting cases); Sublett v. John Wiley &
Sons, 463 F.3d 731, 736 –37 (7th Cir. 2006) (characterizing indirect method of
proof as the “more common” approach to establishing Title VII claim).
At summary judgment, a plaintiff can establish a disparate treatment
claim based on indirect evidence: (1) by showing that the employer’s stated
reason for the challenged employment action was actually a “pretext” to cover-
up unlawful discrimination; or (2) “by otherwise creating a ‘mosaic’ of inten-
tional discrimination by identifying ‘bits and pieces of evidence’ that together
give rise to an inference of discrimination.” Vega, 801 F.3d at 87.
A showing of “pretext” is the most common method for defeating sum-
mary judgment. To do so, the plaintiff must satisfy the evidentiary framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 	See, e.g.,
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (distinguish-
ing this evidentiary framework from party’s burden of proof at trial).
Under this three-part burden-shifting framework, “(1) a plaintiff must
first establish a prima facie case of discrimination; (2) the burden then shifts
to the employer to articulate a legitimate, nondiscriminatory reason for its ac-
tions; if the employer does so, the McDonnell Douglas framework and its
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presumptions and burdens disappear, leaving the sole remaining issue of ‘dis-
crimination vel non;’ and thus, (3) the burden shifts back to the plaintiff ‘to
prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for discrimina-
tion.’” Krul, 705 F. Supp. 3d at 40 (cleaned up).
As plaintiff explains, her disparate treatment claims are premised on
defendant’s alleged “termination” of her employment. 	Dkt. No. 25 at 8–11.
Because this is summary judgment, the Court must credit plaintiff’s version of
events vis-à-vis her separation from employment: she started working for
Spark without telling defendant, SM Southworth saw plaintiff at Wal-Mart
one day, SM Southworth “reported [to defendant] that he believed [plaintiff]
was working at Wal-Mart,” and defendant “terminated” her employment in its
internal record-keeping system on May 18, 2023. Pl.’s Facts ¶¶ 70–74.
An involuntary termination would obviously be an adverse employment
action for purposes of a disparate treatment claim. 	See, e.g., Muldrow v. City
of St. Louis, 601 U.S. 346, 353 (2024) (requiring only “some harm respecting
an identifiable term or condition of employment”); Banks v. Gen. Motors, LLC,
81 F.4th 242, 269–70 (2d Cir. 2023) (identifying termination as an obviously
qualifying employment action but emphasizing that a showing of “economic
harm” is not necessarily required to satisfy this element of a claim).
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However, even viewed in the light most favorable to plaintiff, it is not at
all clear from the available record that a jury could fairly conclude that plaintiff
was in fact involuntarily terminated by defendant. As the Second Circuit has
explained, “[a]n actual discharge . . . occurs when the employer uses language
or engages in conduct that would logically lead a prudent person to believe his
tenure has been terminated.” 	Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d
81, 88 (2d Cir. 1996).
Plaintiff attempts to create a fact dispute on this issue (that is, whether
she voluntarily resigned or defendant fired her or otherwise involuntarily ter-
minated her) by emphasizing that SM Southworth made an entry in defend-
ant’s internal record-keeping system that, according to her, falsely or incor-
rectly indicated that she had taken another job. See Pl.’s Facts ¶¶ 73–74.
But as defendant points out, plaintiff has only pointed to these internal
records—which were only made available later in discovery—rather than to
any contemporaneous language or conduct from defendant that was actually
conveyed to her about her job status. 	Dkt. No. 26 at 3–4. 	Notably, the facts
offered by plaintiff (whether in response to defendant’s initial factual offering
or blocked off in the separate section for plaintiff’s “additional” facts) do not fix
this proof problem, either. Pl.’s Facts ¶¶ 65–134.
To be sure, the “actual discharge” inquiry “focuses on the reasonable per-
ceptions of the employee, not on whether formal words of firing were in fact
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spoken.” 	Chertkova, 92 F.3d at 88 (2d Cir. 1996). 	But even crediting the fact
that defendant’s internal record-keeping system contained the allegedly false
notation by SM Southworth (about plaintiff taking another job), plaintiff has
not pointed to any language or conduct from defendant (or its agents) that was
conveyed to or known to plaintiff that might have led a reasonable person in
her shoes to believe they were fired or otherwise unwelcome to continue work-
ing or picking up shifts.
Consider what has been made available to the Court. Plaintiff acknowl-
edges that she worked for Spark and defendant for at least some period of time.
As defendant points out, after plaintiff requested not to work with SM South-
worth, DM Handy offered her shifts at other stores, she was not prevented from
working shifts at any other stores, and in fact she did work some shifts at other
stores.4 See Pl.’s Facts ¶¶ 59–69.
What happened next? It seems almost certain that there must be some-
thing in the discovery record that would substantiate plaintiff’s claim that she
4 These facts are fatal to any claim for “constructive discharge,” which is a type of “adverse employ-
ment action” that occurs “when the employer, rather than acting directly, deliberately makes an em-
ployee’s working conditions so intolerable that the employee is forced into an involuntary resigna-
tion.” Stofsky v. Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272, 299 (S.D.N.Y. 2009). First, plaintiff
denies ever having resigned. But that aside, she worked other shifts at other stores after asking not
to be assigned to work with SM Southworth. See, e.g., Williams v. Timberlodge Steak House, 2005
WL 189726, at *10 (W.D.N.Y. Jan. 16, 2005) (collecting cases holding that a plaintiff cannot prevail
under a “constructive discharge” theory if the proof shows she did not leave her position “within a
reasonable time after last being the subject of discrimination”).
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did not, in fact, voluntarily resign (such as by stopping coming to work or stop-
ping seeking further shifts).
This would probably have to take the form of some evidence about con-
duct attributable to defendant or its agents. Chertkova, 92 F.3d at 88 (explain-
ing that this inquiry is focused “on the reasonable perceptions of the employee,
not on whether formal words of firing were in fact spoken”). 	For instance, a
conversation with DM Handy (or SM Southworth, for that matter) would have
shed some light on this topic. A written letter might also have done the job.5
But the parties’ offering does not explain what happened or when. 	In-
stead, on plaintiff’s version of the available record, she began delivering for
Spark without telling defendant, at some point she missed a shift with defend-
ant because she had an illness, SM Southworth saw plaintiff delivering for
Spark one day, SM Southworth then submitted an internal record to defendant
that incorrectly indicated plaintiff had a new job, and then . . . what?
Plaintiff skips past whatever contemporaneous knowledge she might
have had about these events and goes right to defendant’s internal records,
which were not produced until later. Pl.’s Facts ¶¶ 83–86. On summary judg-
ment, it is time “to put up or shut up.” Weinstock v. Columbia Univ., 224 F.3d
5 The Court looked past the parties’ Local Rule statements and searched plaintiff’s deposition testi-
mony to try to get an answer to this question. Dkt. No. 25-5. There is a brief reference to a mailing
from defendant, id. at 143, that appears to have been sent to plaintiff at some point after she missed
her shift (the one due to an illness), id. at 142. But plaintiff’s testimony offers little on this point.
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33, 41 (2d Cir. 2000). Absent something more, the Court finds that this is the
unusual case in which plaintiff has not come forward with sufficient evidence
that, viewed in her favor, would establish she was “terminated” in some qual-
ifying adverse fashion, i.e., that she was involuntarily separated and did not
just voluntarily resign from defendant.
Even assuming otherwise and crediting plaintiff’s essentially conclusory
claim that she was involuntarily “terminated” by virtue of the internal system
notation dated May 18, 2023, plaintiff would still need to show some evidence
of pretext on this record to get to a jury on this intentional discrimination
claim. See, e.g., Howard v. MTA Metro-North Commuter R.R., 866 F. Supp. 2d
196, 205 (S.D.N.Y. 2011) (“Despite the elaborate process set up in McDonnell
Douglas, Second Circuit case law makes clear that a court may simply assume
that a plaintiff has established a prima facie case and skip to the final step . .
. as long as the employer has articulated a legitimate, nondiscriminatory rea-
son for the adverse employment action.”).
Notably, plaintiff’s NYSHRL disparate treatment claims benefit from a
slightly more plaintiff-friendly “motivating factor” causation standard. 	See,
e.g., Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 589 U.S. 327
(2020); Naumovski v. Norris, 934 F.3d 200, 213 (2d Cir. 2019). But regardless
of whether the facts are viewed through the lens of this lessened causation
standard (under the NYSHRL) or considered in light of traditional but-for
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causation principles (as in Section 1981), defendant is entitled to summary
judgment just the same.
The reason is that plaintiff has not identified sufficient evidence from
which a rational fact-finder might fairly conclude that she was the victim of
intentional race or sex discrimination in connection with defendant’s decision
to “terminate” her employment at that time. As defendant points out in reply,
it is undisputed that DM Handy came to believe plaintiff voluntarily resigned
her employment because SM Southworth reported to him—incorrectly or per-
haps falsely—that she had taken a job with a different company (Wal-Mart,
not Spark). See Dkt. No. 26 at 4.
Although plaintiff has identified evidence that might lead to the reason-
able inference that SM Southworth possessed some level of racial or perhaps
sexual animus against her, there is no evidence that he did anything vis-à-vis
her “termination” other than make an allegedly false or inaccurate notation in
defendant’s internal system that indicated to DM Handy that plaintiff had
taken a different job.
To be sure, there are times when a non-decisionmaker’s bias can taint
the ultimate employment decision. 	See, e.g., Vasquez v. Empress Ambulance
Serv., Inc., 835 F.3d 267, 274–75 (2d Cir. 2016) (explaining so-called “cat’s paw”
theory of liability). But as discussed supra, there is insufficient evidence in the
record from which to conclude that SM Southworth’s false or inaccurate
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notation in defendant’s internal system, absent more of an explanation about
its relevance to her alleged involuntary “termination,” can carry all the weight
of getting these disparate treatment claims over to a trial.
This is because even if a reasonable jury were to conclude that the nota-
tion made by SM Southworth in defendant’s internal system played some role
in plaintiff’s “termination,” there is nothing in the record to establish that de-
fendant’s decisionmaker’s apparent reliance on this inaccurate internal nota-
tion (whether it was DM Handy or someone else running things on behalf of
defendant) to eventually “terminate” her employment in the system on May
18, 2023, was anything other than reasonable and in good faith under the cir-
cumstances. After all, that is plaintiff’s own explanation to the Court. See Pl.’s
Opp’n, Dkt. No. 25 at 17 (“Instead, Defendant relied entirely on assumptions
made by SM Southworth . . . regarding her employment status.”). Accordingly,
defendant is entitled to summary judgment on plaintiff’s disparate treatment
claims.
2. Retaliation
Second, plaintiff claims that defendant retaliated against her after she
complained about SM Southworth’s inappropriate behavior. 	In other words,
plaintiff has alleged retaliation in response to her protected activity, which can
be actionable if the defendant had a retaliatory intent or motive when taking
the adverse action at issue. 	See, e.g., Burlington N. & Santa Fe Ry. Co. v.
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White, 548 U.S. 53 (2006). New York’s Whistleblower statute works much the
same way. See, e.g., Thacker v. HSBC Bank USA, N.A., 2023 WL 3061336, at
*7 (S.D.N.Y. Apr. 24, 2023).
As with disparate treatment claims, a plaintiff can prove the employer’s
retaliatory animus with direct evidence. 	Mandell v. County of Suffolk, 316
F.3d 368, 383 (2d Cir. 2003). 	But as with direct evidence of discriminatory
intent or motive, direct evidence of retaliatory animus is usually absent from
the record. 	See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d
Cir. 1992).
Thus, retaliation claims also tend to rely on the aggregated weight of
circumstantial proof. 	See, e.g., Hicks v. Baines, 593 F.3d 159, 170 (2d Cir.
2010). “This usually involves evidence that the protected activity was followed
closely by discriminatory treatment or with a showing that other employees
who engaged in similar conduct were treated differently.” 	Krul, 705 F. Supp.
3d at 59 (citation omitted).
At summary judgment, the sufficiency of a retaliation claim is analyzed
with the same McDonnell Douglas three-step burden-shifting framework that
applies to intentional discrimination claims based on indirect proof. 	See, e.g.,
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). 	In the
retaliation 	context, 	“temporal 	proximity 	plays 	an 	important 	role 	in
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establishing indirect evidence of . . . retaliatory animus.” 	Krul, 705 F. Supp.
3d at 63 (citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010).
Measured against this general body of law, plaintiff’s retaliation claims
fail for substantially the same reasons that her disparate treatment claim fails,
i.e., she has not offered a non-conclusory basis in the record from which a jury
could fairly conclude that defendant’s decisionmaker harbored any retaliatory
animus against her at the time of her “termination” in its internal system.
There is no question that plaintiff engaged in protected activity when
she complained about SM Southworth’s conduct and unwanted advances. She
reported this misconduct to DM Handy in March of 2023. 	Pl.’s Facts ¶ 46. 	A
few days later, she submitted a written complaint to defendant’s “portal for
complaints” and notified RM Jessica Smith. Id. ¶¶ 47–48. This resulted in an
investigation that left plaintiff unsatisfied. Id. ¶¶ 53–58. Thereafter, plaintiff
told DM Handy that she did not want to work with SM Southworth anymore
and requested to be reassigned. Id. ¶¶ 59–60.
On plaintiff’s version of events, she never informed defendant that she
was working for Spark, she continued to pick up shifts at some of defendant’s
other stores, at some point she missed a shift with defendant because she had
an illness, SM Southworth saw plaintiff delivering for Spark one day, SM
Southworth then submitted an internal record to defendant that incorrectly
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indicated plaintiff had a new job, and then, at some point later, when defend-
ant’s HR inquired about why plaintiff’s termination was coded as “voluntary,”
DM Handy explained that it was based on SM Southworth’s report that plain-
tiff got a new job. Dkt. No. 25 at 15–16.
Plaintiff claims that a jury could reasonably infer that SM Southworth
entered this notation in defendant’s system and “conveyed his assumptions to
DM Handy in retaliation for her complaint.” Dkt. No. 25 at 16. And the Court
agrees that SM Southworth might have engaged in that conduct for just such
a retaliatory reason.
But as discussed supra, there is nothing in the available record that suf-
ficiently connects this false or inaccurate internal notation to any subsequent
“adverse action,” which in this case would be plaintiff’s allegedly involuntary
separation from employment. 	See, e.g., Tepperwien v. Entergy Nuclear Ops.,
Inc., 663 F.3d 556, 568 (2d Cir. 2011) (cautioning that retaliation claims re-
quire a showing of some materially adverse harm to a reasonable employee
that is highly context-dependent but not an entirely non-existent require-
ment).
Nevertheless, assuming for summary judgment that the missing link in
this proof existed and that plaintiff was in fact involuntarily “terminated” in a
materially adverse fashion, there is an absence of non-conclusory evidence in
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the record that might establish that DM Handy (as the apparent decision-
maker) harbored any retaliatory animus against plaintiff.
As defendant points out, DM Handy offered plaintiff shifts at other
stores after the investigation into SM Southworth concluded, plaintiff was not
prevented from working shifts at any other stores, and in fact plaintiff did work
shifts at other stores. See Pl.’s Facts ¶¶ 59–69.
Absent some non-conclusory factual basis on which to reasonably con-
clude that DM Handy harbored some retaliatory animus against plaintiff, the
mere fact that one event (the complaint and investigation) followed the other
event (SM Southworth’s internal record notation) by a few months in time can-
not bear all the weight of getting this retaliation claim over to trial.
As before, even if a reasonable jury were to conclude that the notation by
SM Southworth in defendant’s internal documentation played some role in
plaintiff’s “termination,” there is nothing in the record to establish that DM
Handy’s apparent reliance on this notation—if that is what he did, since the
parties leave the decision-maker unclear on this record—was anything other
than reasonable and in good faith (i.e., not discriminatory or retaliatory) under
the circumstances. 	Cf. Vasquez, 835 F.3d at 275. 	Accordingly, defendant is
entitled to summary judgment on plaintiff’s retaliation and whistleblower
claims.
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3. Hostile Work Environment
Finally, plaintiff asserts NYSHRL claims for a racially or sexually hos-
tile work environment, which are actionable if the plaintiff shows that she was
subjected to “inferior terms, conditions or privileges of employment” because of
her membership in one of the protected categories. Wheeler v. Praxair Surface
Techs., Inc., 694 F. Supp. 3d 432, 451 (S.D.N.Y. 2023).
Notably, this plaintiff-friendly legal standard is the result of a 2019
state-law amendment that represents an intentional departure from Title VII’s
more demanding “severe or pervasive” standard for these claims. See, e.g., Mi-
tura v. Finco Servs., Inc., 712 F. Supp. 3d 442, 452 n.4 (S.D.N.Y. 2024); Cooper
v. Franklin Templeton Inv., 2023 WL 3882977, at *3 (2d Cir. June 8, 2023)
(summary order) (noting 2019 state-law amendment).
Although it is not yet settled, most trial courts apply the more forgiving
New York City Human Rights Law (“NYCHRL”) standard to post-amendment
NYSHRL hostile work environment claims. See, e.g., Ferrando-Dehtiar v. An-
esthesia Grp. Of Albany, P.C., 727 F. Supp. 3d 165, 189 (N.D.N.Y. 2024); Gar-
rison v. Am. Sugar Refining, Inc., 789 F. Supp. 3d 291, 313 (S.D.N.Y. 2025)
(explaining amendment became effective October 11, 2019).
Under the NYCHRL, a plaintiff need only show “unequal treatment
based upon membership in a protected class.” 	Lee v. Riverbay Corp., 751 F.
Supp. 3d 259, 287 (S.D.N.Y. 2024) (quoting Nieblas-Love v. N.Y. City Hous.
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Auth., 165 F. Supp. 3d 51, 68 (S.D.N.Y. 2016)). Put differently, a plaintiff must
show that she was “treated ‘less well’ because of discriminatory intent.” 	Lee,
751 F. Supp. 3d at 287 (quoting Colon v. Fashion Inst. of Tech., 983 F. Supp.
2d 277, 292 (S.D.N.Y. 2013). “In evaluating a hostile work environment claim,
the court must look at the ‘totality of the circumstances.’” Lee, 751 F. Supp. 3d
at 287 (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d
102, 110 (2d Cir. 2013)).
Measured against this general body of law, plaintiff has identified suffi-
cient evidence from which a rational fact-finder could conclude that she en-
dured unwanted race- and/or gender-based conduct and that, as a result, she
was subjected to inferior terms, conditions, or privileges of employment be-
cause of her membership in one or both of those protected categories. See, e.g.,
Garrison v. Am. Sugar Refining, Inc., 789 F. Supp. 3d 291, 314–15 (S.D.N.Y.
2025) (race); Delo v. Paul Taylor Dance Found., Inc., 685 F. Supp. 3d 173, 183
(S.D.N.Y. 2023) (gender).
Defendant acknowledges that the amended version of the NYSHRL is
much more plaintiff-friendly vis-à-vis a hostile work environment claim, but
argues that it is nevertheless entitled to summary judgment on the basis of the
so-called Faragher/Ellerth affirmative defense. Dkt. No. 24-1 at 16. According
to defendant, it exercised reasonable care to prevent and correct any alleged
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discriminatory or harassing conduct and plaintiff unreasonably failed to take
advantage of defendant’s preventive or corrective opportunities. Id. at 17.
Where, as here, the alleged harasser (SM Southworth) was a “supervi-
sor” but the plaintiff fails to point to a tangible employment action (such as an
involuntary termination), “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 unrea-
sonably failed to take advantage of the preventive or corrective opportunities
that the employer provided.” 	Vance v. Ball State Univ., 570 U.S. 421, 424
(2013).
“An employer may demonstrate the exercise of reasonable care, required
by the firs element, by showing the existence of an antiharassment policy dur-
ing the period of the plaintiff’s employment, although that fact alone is not
always dispositive.” 	Ferraro v. Kellwood Co., 440 F.3d 96, 102 (2d Cir. 2006)
(citations omitted). 	“And under the second element, proof that an employee
has unreasonably failed to use the employer’s complaint procedure normally
suffices to satisfy the employer’s burden.” Id.
This doctrine does not apply to claims under the NYCHRL. 	Edrisse v.
Marriott Int’l, Inc., 757 F. Supp. 2d 381, 389 n.47 (S.D.N.Y. 2010) (quoting
Zakrzewska v. New School, 928 N.E.2d 1035 (N.Y. 2010)). 	But courts have
historically found the defense available under the NYSHRL. See Fay v. City of
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Newburgh, 2024 WL 4169552, at *9 (S.D.N.Y. Sept. 12, 2024) (collecting cases);
Green v. N.Y. City Trans. Auth., 2020 WL 5632743, at *10 (S.D.N.Y. Sept. 21,
2020).
Measured against this general legal standard, the Court cannot say that
defendant has carried its burden. The problem for defendant is that dismissal
on this basis— Faragher/Ellerth is an affirmative defense—would only be war-
ranted if defendant were able to prove its entitlement to judgment as a matter
of law. Marchuk v. Faruqi & Faruqi, LLP, 100 F. Supp. 3d 302, 307 (S.D.N.Y.
2015) (emphasizing this is defendant’s burden).
On plaintiff’s version of events, she rejected SM Southworth’s unwanted
advances, eventually reported him to DM Handy and to others, and defendant
acted unreasonably by, inter alia, initially failing to take it seriously, indicat-
ing that plaintiff should continue working with SM Southworth, forcing plain-
tiff to escalate her concerns to other supervisors, which resulted in a haphazard
investigation that failed to apply its “zero tolerance” policy and failed to sub-
stantiate plaintiff’s well-supported complaints, which were corroborated by at
least one other employee. 	Thereafter, plaintiff was forced to take steps of her
own accord to avoid further mistreatment from her harasser, which included
seeking out less favorable work assignments at other stores.
In other words, there are outstanding fact disputes about both the suffi-
ciency of plaintiff’s complaints to defendant about SM Southworth’s alleged
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conduct and, relatedly, whether defendant’s approach to remedial action (the
investigation, etc.) was reasonable and adequate under the circumstances.
See, e.g., Redd v. N.Y. Div. of Parole, 678 F.3d 166, 183 (2d Cir. 2012); Dillon
v. Ned Mgmt., Inc., 85 F. Supp. 3d 639, 656 (E.D.N.Y. 2015). Accordingly, de-
fendant’s motion for summary judgment on this claim must be denied.
IV. 	CONCLUSION
Plaintiff’s federal-law claims will be dismissed. 	Her remaining claim
arises under state law. 	Where, as here, a pleading only invokes federal-ques-
tion jurisdiction, Compl. ¶ 4, and all federal-law claims are being dismissed
before trial, federal courts generally decline to exercise supplemental jurisdic-
tion over any remaining state-law claims. 	See, e.g., Catzin v. Thank You &
Good Luck Corp., 899 F.3d 77, 85 (2d Cir. 2018).
The Court is inclined to do that here because the remaining claim involves
novel issues of state law. See 28 U.S.C. § 1367(c)(1). First, as noted supra, the
precise legal standard that applies to a post-amendment NYSHRL hostile work
environment claim is still up in the air. 	Second, the employer-defendant has
raised 	the 	question 	of 	whether 	a 	federal-law 	affirmative 	defense 	(Fara-
gher/Ellerth) that has been traditionally applied to NYSHRL claims should
still apply to this particular kind of NYSHRL claim, which has recently been
the subject of a state-law amendment. 	Cf. Kolari v. New York-Presbyterian
Hosp., 455 F.3d 118, 124 (2d Cir. 2006) (“We have repeatedly held that a
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district court particularly abuses its discretion when it retains jurisdiction over
state-law claims raising unsettled questions of law following dismissal of all
original-jurisdiction claims.”).
However, the parties might be diverse. Plaintiff’s complaint does not invoke
the diversity statute (§ 1332). 	But plaintiff is alleged to be a New York domi-
ciliary. Compl. ¶ 2. And although “Dollar General” might be defendant’s cor-
porate parent, see id. ¶ 3, defendant just is a limited liability corporation
(“LLC”) with “New York” in its name that operates a retail store in New York,
see Dkt. No. 10.
An LLC takes on the citizenship of its members for jurisdictional purposes.
See, e.g., Kenshoo, Inc. v. Aragorn Advertising, LLC, 586 F. Supp. 3d 177, 180–
88 (E.D.N.Y. 2022). And despite the inclusion of a question on this exact topic
in the Rule 16 disclosures, defendant failed to disclose its membership. 	See
Dkt. No. 13 ¶ 9. So it is unclear whether diversity might supply an alternative
basis for jurisdiction. 	But even if it does, this matter would still be better off
in state court, which is better suited to examining the remaining state-law
claim in light of recent state-law developments.
Therefore, it is
ORDERED that
1. Defendants’ motion for summary judgment (Dkt. No. 24) is GRANTED
in part and DENIED in part;
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2. Plaintiff’s Section 1981 claims for disparate treatment and retaliation
are DISMISSED;
3. Plaintiff’s NYSHRL claims for disparate treatment and retaliation are
DISMISSED;
4. Plaintiff’s state-law claims based on common-law negligence or the
state whistleblower law are DISMISSED;
5. Plaintiff’s NYSHRL hostile work environment claim based on race
and/or sex REMAINS FOR TRIAL; and
6. Within FOURTEEN DAYS of the date of this opinion, each party shall
file a status report, not to exceed FIVE PAGES in length, explaining whether
(a) this Court retains jurisdiction over the remaining state-law claim; (b) if so,
on what basis; and, depending on the answer to those two antecedent ques-
tions, (c) whether the Court should nevertheless decline to exercise jurisdiction
or otherwise dismiss this case without prejudice in light of the novel question(s)
of state law implicated by the remaining state-law claim.
The Clerk of the Court is directed to terminate the pending motion and
set a status report deadline accordingly.
IT IS SO ORDERED.
Dated: March 24, 2026
Utica, New York.
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