Kozak v. Office Depot, Inc.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOANN R. KOZAK,
Plaintiff,
v.
OFFICE DEPOT, INC.,
Defendant.
REPORT AND
RECOMMENDATION
16-cv-00943(LJV)(JJM)
Plaintiff Joann R. Kozak asserts a variety of claims against Office Depot, Inc., her
former employer, including sexual harassment in violation of Title VII of the Civil Rights Act of
1964 as amended, 42 U.S.C. §§2000e, et seq. (“Title VII”) and the New York State Human
Rights Law, N.Y. Executive Law §§290, et seq. (“NYSHRL”), sex and age discrimination in
violation of Title VII, the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§621
et seq. (“ADEA”), and the NYSHRL, as well as retaliation, in violation of the Title VII, the
ADEA, the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq. (“ADA”) and
the NYSHRL. Complaint [1].1
Before the court are Office Depot’s motions for summary judgment pursuant to
Fed. R. Civ. P. (“Rule”) 56 [156] and to strike [170] which have been referred to me by District
Judge Lawrence J. Vilardo for initial consideration [8]. Having reviewed the parties’ initial
submissions [156, 159-63, 167-69, 170, 173-74, 177], heard oral argument on March 8, 2024
[186], and considered their post-argument submissions [182-85], I recommend that Office
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
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Depot’s motion to strike [170] be denied,2 and that its motion for summary judgment [156] be
granted in part and denied in part.
BACKGROUND
In November 2002, Office Depot hired Kozak, who was 42 years old at the time,
as a store associate at Store #673 in Cheektowaga, New York. See Office Depot’s Local Rule
56(a)(1) Statement of Material Facts [156-2], ¶¶15-16; 3 Kozak’s Counter-Statement of
Contested Facts [159], ¶19. Over the next several years, Kozak held various roles with Office
Depot, and was eventually promoted to Assistant Manager of Store #493 in 2011, and then to
Manager of Store #3307 in December 20124 at age 52. See Office Depot’s Local Rule 56(a)(1)
Statement of Material Facts [156-2], ¶¶19, 20, 24; Kozak’s Counter-Statement of Contested
Facts [159], ¶¶20, 24; [159-24] at 2.
In 2014 Scott McGovern became Kozak’s District Manager. See Office Depot’s
Local Rule 56(a)(1) Statement of Material Facts [156-2], ¶33. Kozak states that at the
conclusion of a walkaround of Store #3307 in June or July of 2014, McGovern “shook my right
hand with his right hand and took his left hand and rubbed my arm from just above my elbow to
up on my shoulder and stroked his hand up and down. I did nothing; he left and I went back to
my office”. Kozak Declaration [159-3], ¶19.
2 	To the extent that the motion to strike bears upon the motion for summary judgment, I have
treated it as a dispositive motion.
3 	It is incorrectly captioned as Office Depot’s “Local Rule 56.1(A)(1) Statement of Material Facts”.
No such Local Rule exists.
4 	While Office Depot states that Kozak became Manager of Store #3307 in December 2013 (see
Office Depot’s Local Rule 56(a)(1) Statement of Material Facts [156-2], ¶24), its records support that this
occurred in December 2012. See [159-24] at 2.
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The Closure of Store #3307
As a result of the merger of Office Depot and Office Max, Store #3307 closed in
November 2014. See Office Depot’s Local Rule 56(a)(1) Statement of Material Facts [156-2],
¶34. A month prior to the closure, McGovern came to Store #3307, and Kozak states that
McGovern
“asked if I wanted Store 6502 and I said yes . . . . About 5-10 minutes later when
we got up and were approximately [one] foot away from each other, . . .
McGovern sexually harassed me by taking his right hand and touching my neck,
shoulders, rubbing his hand on my back by my bra strap and clasp. He would
touch the back of my neck then slide his hand all the way down by my bra clasp
and straps because he would rub from up to down. When his hand went across my
bra strap and right on the clasp around the middle of my back I pulled forward so
his hand was no longer touching me”.
Kozak Declaration [159-3], ¶22.
The next morning, Michael Szpylman,5 the Assistant Manager of Store #3307
approached Kozak and said that he observed the incident between her and McGovern on the
surveillance tape. See id., ¶23. Szpylman testified that he did not report the incident to Human
Resources (“HR”) because Kozak told him that she was going to HR. See Szpylman deposition
transcript [156-1] at 222-23, deposition pages 52-53, 55. By contrast, Kozak states that when
Szpylman asked her if she reported it to anyone, she said “no because I was afraid of losing my
job”. Kozak Declaration [159-3], ¶23. She also understood that “by immediately physically
showing . . . McGovern that his advances were unwelcome he would recognize it was a
complaint”. Id.
5 	Although the parties use this spelling, his deposition transcript identifies him as “Szplyman”. See
[156-1] at 219.
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Kozak’s Move to Store #6502
On December 1, 2014, Kozak became the Manager of Store #6502, a larger store
than #3307. See Office Depot’s Local Rule 56(a)(1) Statement of Material Facts [156-2], ¶35. It
was also an Office Max store, leaving Kozak “unfamiliar with the cash procedures, among
others”. Kozak Declaration [159-3], ¶26. According to Kozak, Store #6502 had “a lot of
problems” when she took over as Manager, and “[b]ecause the store was in transition from
Office Max to Office Depot, everything from systems to inventory had to be transitioned, which
was done on a piecemeal basis”. Id., ¶33. The parties dispute whether Kozak’s performance
declined upon her move to Store #6502. Compare Office Depot’s Local Rule 56(a)(1) Statement
of Material Facts [156-2], ¶37 with Kozak’s Counter-Statement of Contested Facts [159], ¶37.
On February 12, 2015, McGovern conducted a walkaround of Store #6502.
Kozak states that thereafter McGovern
“met with me in my office. At that time, he told me that the store looked good
and asked me ‘Do you want the store? Take ownership of it.’ I said ‘Okay’ and
asked Mr. McGovern about management training. 	Mr. McGovern told me
‘No’. When we got up to go to lunch, which is what I believed he did with all
his Store Managers after a business review, he started rubbing my back, neck,
shoulders, and bra clasp in the same manner he had done previously only longer.
I was startled, scared of him, and in shock. I moved away from him showing
him physically that his fondling of me was unwelcome . . . . We then went to
Applebee’s for lunch. 	During lunch I told him that I believed an employee
called in a complaint about me. 	He said ‘You have nothing to worry about,
don’t worry about it. I had three complaints against me and nothing was done
about it.’ I felt . . . McGovern was letting me know that he could do whatever
he wanted and not to bother reporting it because nothing would be done about
it.”
Kozak Declaration [159-3], ¶35.
In March 2015, McGovern completed Kozak’s Performance Evaluation for the
previous year. See [156-1] at 125-30. Kozak received an overall rating of “Meets Expectations”,
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but there were several areas identified as “Needs Improvement”. Id. at 130; see also Office
Depot’s Local Rule 56(a)(1) Statement of Material Facts [156-2], ¶¶27-28.
Kozak states that during a March 2015 conference call among McGovern and
all the Store Managers in the district, “McGovern announced that he had three new recruits
that were all younger in the Store Manager Training Program and a lot of ‘Heads are going
to roll.’” Kozak Declaration [159-3], ¶38. Thereafter, she called David Seaner, the Store
Training Manager, to learn what McGovern meant. Seaner “said that there were a lot of the
younger managers coming in and older managers getting let go”. Id.
On March 26, 2015, McGovern returned to Store #6220, and Kozak states the
unwelcome touching continued:
“He told me the store was looking good . . . and I did a great job and the store
was cleaned up. When we finished, we went into the office. As my review was
already completed, I asked him if I was getting a raise. He said I was, but the
amount was undetermined. When we got up out of our chairs to go to lunch,
he again fondled me doing the same thing-taking his right hand and touching
my neck, shoulders, rubbing his hand on my back by my bra strap and clasp.
He touched the back of my neck, slid his hand all the way down by my bra clasp
and straps, then rubbed up to down. I was offended, humiliated, and afraid to
be alone with him . . . . His unwelcome touch was once again sensual. He knew
I was married and not available. I did not want him to fondle me so I moved
away and walked out of the office.”
Kozak Declaration [159-3], ¶39.
They then went to lunch together, where Kozak states McGovern told her
“You know I really like you a lot”, but she did not respond. Id. Upon their return to the
store, McGovern’s demeanor changed. He walked parts of the store with a yellow pad and
then shut Kozak’s door and “became angry”, telling Kozak “‘What’s wrong with you?! You
have to start learning the Profit/Loss Statement.’” Id. When she “again asked to be sent to
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the Manager Training Program as male employees had been. He yelled ‘NO! You don’t
need to go.’” Id.
McGovern created a “DSM Store Visit Guide” (“DSM”) on March 26, 2015,
hours after the store visit. See [156-1] at 185-87. Of the 80 metrics on the form, Kozak was
rated as “I” -“[i]neffective, improvement required” on more than half. Office Depot’s Local
Rule 56(a)(1) Statement of Material Facts [156-2], ¶42. In the written section, McGovern
identified several issues he described as “MAJOR”, including one that “Must get fixed
IMMEDIATELY”. [156-1] at 186. Kozak disputes these ratings and contends that she did not
see this DSM while employed by Office Depot. See Kozak Declaration [159-3], ¶40.
The Kendrick Investigation
On or about April 30, 2015, David Newman, an Assistant Store Manager under
Kozak, contacted McGovern concerning Kozak. See Office Depot’s Local Rule 56(a)(1)
Statement of Material Facts [156-2], ¶44; [156-1] at 149-53. Newman sent McGovern
screenshots of text messages between him and Kozak that Newman believed demonstrated that
Kozak was drunk. Plainly frustrated, he asked to be demoted. See Office Depot’s Local Rule
56(a)(1) Statement of Material Facts [156-2], ¶45; [156-1] at 150-53; Newman deposition
transcript [156-1] at 200. McGovern forwarded these communications to Gina Kendrick, a
Senior Consultant in Office Depot’s Employee Relations Department. See Office Depot’s Local
Rule 56(a)(1) Statement of Material Facts [156-2], ¶46.
Kendrick initiated an investigation, during which she interviewed Newman,
Sales Consultant Jim Brice, and Senior Consultant Emmanuel Pagan, Sr., which she
summarized in a May 7, 2015 e-mail to McGovern:
Newman “stated that there have been several instances in which he suspects that
Joann was impacted by alcohol. On one occasion, she called him on the phone,
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while he was at the store, to review updates on the store. David alleges that Joann
kept him on the phone for approximately an hour, and she appeared incoherent. She
also yelled at him, and became upset about certain tasks that were not completed.
He also mentioned another instance, when Joann returned to the store after her shift
had already ended. According to David, she appeared visibly drunk, imbalanced
and smelled of alcohol. David stated that he was able to convince her to go the
office, in an effort to hide her condition from the rest of the team. David stated that
there is an Applebees restaurant across the parking lot from the store, and Joann
went there after her shift with another worker. David further states that Joann asked
him to cover her shift the following morning because her mother-in-law was ill.
David suspects that this was not true, as an associate asked Joann about her mother-
in-law’s condition, subsequently, and Joann stated that she was fine and their [sic]
no issues. David further stated that a lot of associates feel that Joann she shows
favoritism towards legacy office depot associates.”
Bryce stated “that he has reached out to HR in the past about issues with scheduling.
He stated that changes are often made to the schedule after it is posted without
associates being notified of the change. Jim stated that within the last month or so,
this has improved. Jim said that recognition is lacking in the store, and many
employees feel ‘unappreciated and overworked.’ He further mentioned that he was
recently diagnosed with a pinched nerve. He has limitations with lifting over 25 lbs.
Alleges that Joann became frustrated after she received his doctor's note through
email. Jim stated that he is concerned about Joann not accommodating his schedule
for future doctor’s appointments.”
Pagan “stated that morale is very low in the building. He feels that there is a lot of
misdirection from Joann and a lack of communication. He stated that during the all
Store Meeting, in front of all associates she told him that he had no authority to tell
associates what to do. The following day, Joann spoke with him privately in the
lockup area, and asked him why isn’t he providing more direction to associates. He
alleges that Carol Cannon overheard this conversation. Manny also stated that
Joann is not there often. He alleges that Joann does not work her complete schedule
and often leaves early between 11am - 3pm, if she is scheduled until 5pm. Manny
stated that Joann regularly contacts him before his shift starts or on his day off to
review the status of orders in tech. He stated that Joann has contacted him as early
as 9am although he is not scheduled to start until 3pm. She has also contacted him
during his vacation. Manny states that there is a day planner that is used in the tech
department to communicate these things. He stated that there is also a digital copy
available on the desktop kiosk. Manny stated that he has informed Joann of this, as
he leaves all of his notes for the department in the planner, however she continues
to call him outside of work.”
[156-1] at 176. Kozak disputes these claims. See Kozak Declaration [159-3], ¶44.
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In the same May 7, 2015 e-mail, Kendrick informed McGovern that the
“suspicions regarding [Kozak’s] inebriated state” would be “a little more challenging to address”
than some of the other issues raised, “since [Kozak] has not admitted to being under the
influence”, and suggested that he “discuss the incidents with her and use the text messages”
Newman provided “as an example of her conduct, and ask her to provide an explanation for what
happened.” [156-1] at 176. She further explained that “[m]y initial thoughts are that this will
most likely lead to coaching, however we can discuss any other accountability you would like to
apply if you think it needs to be a written warning.” Id.
On May 9, 2015, McGovern prepared another DSM for Kozak’s store arising
from a May 7, 2015 visit. [156-1] at 188-90. Kozak received mostly ratings of Ineffective.
Id. Kozak disputes that the visit occurred, characterizing it as a “claimed” May 7, 2015
store visit, and also disputes the ratings received. Kozak Declaration [159-3], ¶45. She
further denies that she received this or any other DSM while employed by Office Depot. Id.
The May 9, 2015 DSM states that it was modified on May 27, 2015, but McGovern could
not explain why that appeared on the DSM. See McGovern deposition transcript [159-10] at
40-41. Although this DSM was completed two days after the May 7, 2015 visit, McGovern
testified he would not “normally” complete the form when he was no longer in the store, but
that “[a]t times I would write these up . . . after the visit. There was not a specific
requirement that I fill this out at the same time as conducting the review.” Id. at 37-38.
The PIP and PCD
On May 27, 2015, McGovern completed a Performance Improvement Plan
(“PIP”) for Kozak, which identified issues similar to the DSMs he completed in March and
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May of 2015 (see [156-1] at 94-97), 6 and a Performance Correction Document (“PCD”),
which addressed some of the same conduct identified during Kendrick’s investigation. See
id. at 78-79; O ffice Depot’s Local Rule 56(a)(1) Statement of Material Facts [156-2], ¶¶56, 60.
Although the discipline section of the PCD identified no current or previous
discipline ([156-1] at 79), the PIP cautioned that “[i]f the Action Plan is not timely completed,
the Action Plan steps are not timely implemented, other issues arise during the PIP period, or
performance is not improved to Company standards by the end of the process, termination of
employment may result. If performance declines during the PIP period or is not sustained after
successful completion of the PIP period, termination of employment may result.” [156-1] at 94.
In the “Expected results” section, McGovern further warned that “[p]rogress toward
standards . . . is urgent and required. We cannot continue to not progress as we have the first 5
months in the store. I expect to see SIGNIFICANT progress on these issues driven by flawless
execution of the programs immediately and for the next 30 days followed by development of the
behaviors to be 100% to standard by the end of 60 Days. We have significant work ahead of us
and we need to have the foundation locked in with an extremely high sense of urgency.” Id. at
95.
With respect to previous counseling activity, the PIP acknowledged that it was
“the first written documents provided to [Kozak].” Id. McGovern stated that he previously
“completed 2 notes to file based on our last 2 visits as well as provided focused detailed DSM
visit log’s in the RSSG 7 system for [Kozak] to access.” Id. He also stated that “[a]fter the last
two visits, you have not looked at the notes again after the visit (Not reviewed the first time
6 	Specifically, the PIP stated that it was based on two “DSM full visits so far” and that there had
been three “other visits prior to the start of RSSG that were also below expectations”. [156-1] at 94.
7 	It is not clear from the record what this acronym stands for.
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admittedly and no DSM visit posted the second time (I had to walk you through retrieving it
from the RSSG Dashboard again)).” Id.
The May 27, 2015 Incident
On May 27, 2015, McGovern met with Kozak in her office to give her the PIP
and PCD. The circumstances of what occurred during that meeting are sharply disputed.
According to Kozak,
“McGovern moved his chair in front of the door and placed his left hand on the
doorknob. He started yelling, asking why I cut hours. I responded that he emailed
me telling the managers to cut hours . . . . Newman came to the Store Manager’s
office door . . . . McGovern opened the door approximately 8 to l0 inches, and . . .
Newman reached in with his hand to grab his radio and earpiece on my desk . . . .
Newman was in and out within ten seconds . . . . McGovern closed the door,
blocking the door with his chair and placing his left hand on the doorknob. He
yelled asking where all of my logistics people were. I responded that when the
managers were told to cut hours, . . . Newman and I looked over the schedules and
cut hours when needed. He replied that he didn’t care and I should have had more
employees on. He asked why the shelves were empty. I replied that we were
dropping and filling with the clearance merchandise. He had been shaking his right
hand with the papers in his fist as he yelled at me. The office was maybe 6-feet by
5-feet in size, . . . McGovern was a bigger guy at almost 6 feet and approximately
250 pounds, and I was 100-110 pounds. I got up out of my chair to leave the office
because of . . . McGovern’s frightening and threatening behavior. He was yelling
very, very loudly. He blocked the door with his chair, he was turned away from it
facing me with his left hand on the doorknob. He would not let me leave the office.
He took the PCD and PIP he was angrily shaking at me in his fist, threw them on
the desk and told me to sign this. He yelled: ‘You sit down or you’re fire’. I was
very fearful and signed . . . . After he had me sign the document, he told me ‘and
don’t tell anybody what happened in this room.’”
Kozak Declaration [159-3], ¶46.
McGovern denies that he blocked Kozak’s ability to leave the office (see
[159-10] at 46), and in a subsequent June 17, 2015 e-mail that he sent to Mary Bryan,
Director of Field Employee Relations for Office Depot, he painted a very different picture of
the tone, tenor, and content of the meeting. See [156-1] at 178-79.
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According to the PIP, Kozak’s Action Plan was due on July 27, 2015. See
[156-1] at 95. However, Kozak states that at McGovern’s direction, she completed it the
same day. See Kozak Declaration [159-3], ¶46; [156-1] at 97; Office Depot’s Local Rule
56(a)(1) Statement of Material Facts [156-2], ¶¶64, 65.
Bryan testified that Office Depot generally gave employees approximately five
days to complete an Action Plan, and that it would be “unreasonable” to ask an employee to do
so in a period of several hours. Bryan deposition transcript [159-8] at 11, 35. Bryan also testified
that in her experience PCDs and PIPs are “[g]enerally not” given at the same time. Id. at 30-31.
McGovern also did not partner with HR before delivering the PIP, an Office Depot standard
policy. See [156-1] at 155.
On May 28, 2015, Kozak arrived at work but was too upset to enter the
building. Kozak Declaration [159-3], ¶48. When Scott Hahn, the Operations Manager,
came outside, she told him that she was unable to work and asked him to enter her time off
in the system. Id. From there, her husband, who was in the vehicle with her, drove her to
the Buffalo Police Department, where she completed a Police Report alleging that
McGovern “trap[ped] her in the office[ ] . . . and refused to let her leave” and “[f]or
approximately [30] minutes . . . . verbally abuse[d] her and force[d] her to sign paperwork
she did not agree with.” [156-1] at 163. Kozak never heard back from the Buffalo Police
concerning this complaint. See Kozak deposition transcript [156-1] at 72, deposition page
247.
Kozak then attended a pre-scheduled doctor’s visit that afternoon (see Kozak
deposition transcript [156-1] at 71, deposition pages 243-44), during which her doctor
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completed a note excusing her “from work . . . until further notice due to illness”. [156-1] at
26.
Kozak’s Complaints to Office Depot and HR’s Investigation
On May 28, 2015, Kozak made a complaint to Colleen Celmer, Office Depot’s
HR Business Partner (see Kozak Declaration [159-3], ¶48), who memorialized their conversation in
an e-mail that day to Kendrick:
“Kozak stated that. . . McGovern comes into her store, screams at her in the office,
and during his last visit he blocked the door and would not let her leave. She is so
stressed out regarding the situation she has gone to a physician. She is suffering
from medical problems exacerbated by the stress at work. She stated that it is a
hostile work environment and that she did not feel that he treated the male SM’s
[Store Managers] in this manner. She wanted to voice a complaint and have it
looked into. I gave her your #”.
[156-1] at 155.
Kozak next spoke to Kendrick on May 29, 2015, who advised her to contact
Bryan because she was the Director of HR. See Kozak deposition transcript [156-1] at 70-71,
deposition pages 241-42. Kendrick memorialized their conversation in a May 29, 2015 e-mail to
Bryan:
[Kozak] alleges that Scott yells at her in the manager’s office every time he enters
her store, and yesterday when they discussed her PIP, she stated that [McGovern]
informed her that if she got up to leave he would consider that her resignation.
[Kozak] said [McGovern] is very intimidating and the office is small so his position
blocked the door and she was nervous to leave as she thought she might be
terminated. [Kozak] signed the documents however stated that she was afraid, and
not completely aware of what she signed . . . . [Kozak] alleges that [McGovern] has
yelled at other managers including Kiki France Perry, Store Manager at location
6034. She also recommended that I speak with . . . Newman, and Customer Service
Manager Carol Cannon about yesterday’s incident. Son Vuong, Field Sales and
Services Manager was also in the store yesterday.”
[156-1] at 154.
Kendrick also advised Bryan that McGovern called her the previous evening to
inform her that he had provided Kozak with a PIP and PCD and that one of the managers told
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him that Kozak had reported to the police that he had held her against her will in the office
during their meeting. Id. 	At the bottom of her e-mail, Kendrick included a section entitled
“Background”, where she detailed her earlier investigation of employee complaints about Kozak.
Id.
In a May 30, 2015 e-mail, Kozak explained to Bryan that McGovern:
“yells in my ear evertime [sic] he is [in] the store[.] [On] wed[nesday]
5/27/2015, he came into my store had me in the office for seems liked a hour
yelling at me he blocked the door so I could not leave after he left i had a
nervous breakdown tried to go in to work fri but i was shaking really bad i could
not go back in he had me sign stuff that i did not even know what i was signing
my doc put me on medication for my nerves and is keeping me out of work for
further notice, I also filed a police report”.
[156-1] at 157. That same day, Kozak also forwarded a copy of her Buffalo Police Report
to Kendrick. See id. at 160.
The next day, Bryan responded that she would look into the matter when she
returned to the office later that week. See id. at 157. She also informed Kozak that she
notified Office Depot Regional Vice President Chris Richardson of her claim, and that she
would “likely discuss this matter with both he and [McGovern]” that week. Id. McGovern
was not suspended pending Office Depot’s investigation. See Bryan deposition transcript
[156-1] at 146. However, Bryan noted that since McGovern was not based in that store,
there “was not an immediate threat that he was going to be in the location”. Bryan
deposition transcript [159-8] at 25. She also believed that he was told not to visit the
location because of the claim against him. See id. at 25-26.
Kozak left a voicemail for Bryan on June 6, 2015. Kozak Declaration [159-3],
¶52; Bryan’s notes [156-1] at 164. When they eventually connected on June 8, 2015,
Kozak states that Bryan only asked her “specific questions” and did not allow her “to
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interject and tell her the details of what happened on May 27, 2015 and prior occasions.”
Kozak Declaration [159-3], ¶52.
Following their June 8, 2015 conversation, Bryan sent the following e-mail to
Kozak:
“As follow-up to our conversation, please be advised that I am conducting an
investigation into your claim about . . . McGovern. With regard to your leave
of absence, and as previously communicated to you on 5/31, you should refrain
from accessing company email and systems while you are on leave. This also
includes contacting your store or your associates.
It has come to my attention that you and/or your husband have been regularly
contacting your store team since you began your leave of absence on 5/28/15.
The intent of a leave of absence is to allow an associate to refrain from work
related matters while you are away. Therefore, we are requesting that you and
your husband immediately cease contacting the store and your associates, until
such time you return to work.”
[156-1] at 83. See also Pagan’s July 2, 2015 e-mail to McGovern [160-20] at 4 (discussing
Kozak’s contact with employees).
Cannon’s June 9, 2015 Written Statement
As part of Bryan’s investigation, she obtained a six-page handwritten
statement from Cannon dated June 9, 2015. It contained a variety of claims against Kozak,
including:
-- 	Kozak “knew that [McGovern] was coming” on May 27, 2015, and “said if it
doesn’t go good she had a plan. She wanted me there but it didn’t work out her way and I
had the day off”;
-- 	after the May 27, 2015 incident, Kozak called Cannon at “home crying and
said get to the store right away”. Upon her arrival, Kozak’s husband “looked at all of us and
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said anyone that doesn’t stick behind [Kozak] will be sorry”. When Kozak left she repeated
“I have a plan”;
-- 	when Cannon arrived at the store on May 28, 2015, Kozak’s husband repeated
that “anyone that doesn’t back [Kozak] will be sorry”;
-- 	later that day Kozak told Cannon “that she was going to [Buffalo] Police to
report . . . McGovern for holding [her] in the office against her will and also had the door
locked and wanted me to go and say I saw what he did”;
-- 	“the phone calls [to Cannon from Kozak] started May 28 everyday at least 4
to 5 a day”;
-- 	on May 29, 2015, Kozak asked her again to go and talk to the Buffalo Police,
but Cannon told her “I wasn’t even in the building. I can’t do this”. In response, Kozak said
“they will never know”. Kozak then called back and said to call Newman “and tell him to
punch you in”. Cannon told her “NO I don’t lye [sic] for anyone”;
-- 	during the next call from Kozak, she told Cannon that during a managers
meeting, McGovern “told her to keep writing up [Cannon] for anything because [she has]
been around to[o] long and make[s] too much money”. However, Cannon confirmed with a
friend who attended the meeting that “that never happen[ed]”;
-- 	the phone calls from Kozak “got worse they were 5-10 a day” causing Cannon
to take a few days off and for her daughter to tell Kozak “to stop calling or they were going
to press charges against her”;
-- 	“the straw that broke the camel[’]s back was when she called me at 2:41 AM
on June 8 that is when I call[ed] HR because I needed help. There is really something wrong
with [Kozak]”;
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-- 	Kozak “has a problem. She is a drinker. She has called the store drunk and
came into the store one night after drinking 3 sheets to the wind . . . . She would call assoc.
drunk and yell at them for things that should have been handled inside [of the] store”; and
-- 	“Dave [Newman], Scott [McGovern] and myself have held this store together
. . . . [D]on’t be worried about store 6502 we will turn it around, just give us a little time”.
[156-1] at 169-74 (emphasis in original).
Kozak disputes all aspects of Cannon’s statement, including Cannon’s claim
that she asked her to lie. See Kozak Declaration [159-3], ¶53. Bryan never told Kozak of
the information supplied by Cannon (Kozak Declaration [159-3], ¶53), explaining that “I
don’t know why I would need to do that. I was investigating . . . Kozak’s claim against . . .
McGovern and talking to witnesses about understanding the operation of the store.” Bryan
deposition transcript [156-1] at 145.
Bryan’s notes reflect that she also spoke with Cannon on June 10, 2015. See
[156-1] at 167. When asked at her deposition whether she spoke to anyone to check the
veracity of Cannon’s allegations, Bryan testified “I normally will look at a person’s
performance appraisal or just to make sure that is this person performing, does this person
have a reason to discount their leader. So we have forms of validation, so I don’t recall
exactly who I spoke with”. Bryan deposition transcript [159-8] at 22. See also [156-1] at 147
(Q. “[D]id you ever question at any time the veracity of the information . . . Cannon gave to
you, yes or no? A. By speaking to other associates in the location, we often look at is it
consistent with other associates in the location”). Bryan acknowledged that she did not ask
Kozak whether she had previously complained about Cannon’s performance to McGovern.
See Bryan deposition transcript [159-8] at 46.
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On June 17, 2015, McGovern e-mailed Bryan his statement concerning the
May 27, 2015 incident, telling her that he would put it on a “statement form”, if necessary.
[156-1] at 178-79. Bryan testified that she would have also questioned McGovern about
Kozak’s claim and that she would have documented that conversation, but those notes do
not appear in Bryan’s file. See Bryan deposition transcript [159-8] at 49-51.
On June 17, 2015, Bryan sent a follow-up e-mail to Kozak, stating that it had
come to her attention that Kozak had “been repeatedly contacting . . . store associates and
other Store Managers regarding [her] claim against . . . McGovern”. [156-1] at 84. She
again asked Kozak to cease these communications, which were “not only interfering with
the day to day business operations of [the] store, but could also be considered harassment of
other employees”. Id.
Bryan’s file also contained notes from a June 18, 2015 conversation with
Hahn, who “was reluctant to talk”, but did partially confirm Cannon’s statements
concerning Kozak’s husband: “Mr Kozak came to store and said if anybody has a problem
with [Kozak] or makes her upset . . . (He didn’t hear the result of what Mr. Kozak said).” Id.
at 166. Hahn also confirmed that Kozak “was visibly upset”. Id.
Kozak alleges that on June 18, 2015, she received a call from Bryan, who
“yelled” at her and warned that she “could be fired for making a false claim against [her]
supervisor”. Kozak Declaration [159-3], ¶54. Although Kozak denied this allegation, Bryan
“ignored” it, and also ignored her attempts to tell Bryan about McGovern’s “sexually
harassing conduct”. Id. According to Kozak, she never felt comfortable communicating
with . . . Bryan or [HR] after this conversation”, and states that she “was not interviewed”
regarding her complaints against McGovern. Id.
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Kozak’s Termination
Kozak was terminated in an e-mail dated June 30, 2015 from Bryan, which
read:
“As follow-up to our conversation on June 18, 2015, please be advised that we
have concluded our investigation into your complaint against . . . McGovern
. . . . You claim that you were subjected to a hostile work environment and . . .
McGovern held you against your will in your office on May 29, 2015 [sic] when
he presented you with a [PIP] . . . . We interviewed you and other appropriate
individuals and have determined your claim is unsubstantiated. The results of
the investigation have been documented.
During our initial conversation on June 8, 2015. I asked you how . . . McGovern
was creating a hostile environment. Your response was that he yells at you
because of how your store looks and that he ‘bitches’ about payroll. When I
asked you how . . . 	McGovern prevented you from leaving your office, you
stated that he was sitting in front of the office door and that you could not get
through. Yet, in that same conversation, you affirmed that you did not actually
try to leave the office and that . . . McGovern did not touch you nor try to
restrain you in any way. You further claim that . . . McGovern locked you in
your office during your conversation. However, during the same time you claim
you were locked in your office, Assistant Store Manager, David Newman
interrupted your conversation when he walked into your office to retrieve a
personal item he had left there previously . . . . Newman does not have a key
to your office. Your office door was unlocked. The fact that he was able to open
your office door and enter and exit your office freely without any assistance,
coupled with your own admissions, disproves your claim that Mr. McGovern
locked you in your office and held you against your will.
Based on the findings of our investigation, your claim of false imprisonment is
not factual and is unfounded, in fact, our investigation shows that not only did
you make a false claim against . . . McGovern, but you proceeded to promote
your false claim by calling and harassing associates in your store and several of
. . . McGovern’s direct reports to advise them of your plan to have him arrested.
Further, we also have documentation stating that you contacted one of your
associates and asked them to go to the Buffalo Police . . . and lie to them by
telling the police they had seen . . . McGovern confine you in the office when
in fact that individual was not in the building at the time the alleged incident
occurred.
To misrepresent facts and make a false claim against any associate, let alone
your supervisor, is dishonest and unprofessional. Additionally, your continuous
attempts to promote your false claim by repeatedly calling associates and
managers even after we requested you stop, impeded our internal investigation.
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Your actions have been unethical and unprofessional and violate our Code of
Ethical Conduct and will not be tolerated. As a result, your employment is
hereby terminated, effective immediately.”
[156-1] at 86. 8
Kozak states that she never saw the termination e-mail until October 2015
when she received her unemployment file. See Kozak Declaration [159-3], ¶55.9 According
to Kozak, her personal e-mail address was “closed due to spam”. Id. Following her
termination, Andrew Bland, a younger male, became Manager of Store #6502. See id. at
¶68.
Kozak’s Attempts to Obtain Short-Term Disability Benefits
In her May 31, 2015 e-mail, Bryan advised Kozak to contact Sedgwick
Claims Management Services, Office Depot’s Leave and Disability Administrator, to
initiate the leave of absence process. See [156-1] at 157. On June 3, 2015, Kozak e-mailed
Bryan, informing her that she had filed for short-term disability, and stated that she “can’t
afford to lose” her insurance. Id. at 81.
On June 22, 2015, Sedgwick denied Kozak’s claim for short-term disability
from June 1, 2015 because she failed to provide “a completed attending physician’s
statement” certifying that she was disabled from performing the duties of her occupation.
[163-2] at 2. It also denied her request that her leave of absence be “designated as FMLA,
8 	The termination e-mail stated that Newman, who did not possess a key, was able to enter the
office during the May 27, 2015 incident, thereby undermining Kozak’s claim that McGovern had locked
her in the office ([156-1] at 86), but it is unclear whether this was credited from McGovern’s written
statement of the incident or came from Newman himself. There are no notes of any conversation with
Newman or written statement by him to that effect in the investigatory file. Newman also testified that he
did not recall whether he entered (see Newman deposition transcript [156-1] at 193) and Kozak testified
that Newman entered the office, but did so after McGovern “let him in”. Kozak deposition transcript
[159-4] at 121.
9 	This is difficult to reconcile with Pagan’s July 2, 2015 e-mail to McGovern: According to Pagan,
Kozak stated “she has a lawyer, and he’s [sic] going to fight her being terminated because she’s on
disability” and that “Newman filled out unemployment papers on her behalf.” [160-20] at 4.
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State Family Medical leave or any other applicable leave under the Office Depot plan”,
because she failed to provide “medical documentation” supporting the request. Id. at 3.
The next day, Sedgwick sent an e-mail to McGovern, informing him of the
denials. See [163-3] at 2. On June 24 and July 6, 2015, Kozak faxed Sedgwick additional
medical forms from Lisa Bauman, PA-C, and Dr. Cleary. See [163-4] at 4-6; [163-5] at 3-6.
On July 7, 2015, Sedgwick again denied Kozak’s short-term disability claim
because “[t]he medical information provided did not document a severity of your
condition(s) that supported your inability to perform your occupation” and “did not identify
any examination findings indicating impairment in reasoning and judgment” or “any
significant abnormal examination findings”. [163-6] at 2. It also denied Kozak’s leave of
absence request because she was “no longer employed with Office Depot”. Id. at 3.
However, on July 7, 2015, Kozak was advised by Aetna that she qualified for New York
State Short-Term Disability benefits from May 28 through July 26, 2015. See [163-8] at 2;
Kozak Declaration [159-3], ¶63.
On October 29, 2015, Sedgwick reversed the denial of short-term disability
benefits from June 1 through July 27, 2015, but otherwise reaffirmed its denial of Kozak’s
leave of absence. See [163-12]; Kozak Declaration [159-3], ¶67.
Procedural Background
After satisfying the conditions precedent to suit, Kozak commenced this
action on November 23, 2016, asserting the following causes of action:
-- 	Sex discrimination in violation of Title VII and the NYSHRL (Complaint [1],
(First and Second Causes of Action));
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-- 	Hostile work environment in violation of Title VII and the NYSHRL for
creating “a sexually hostile working environment in which [Kozak] was intimidated,
harassed, and undermined in her attempts to succeed” (id. at Third and Fourth
Causes of Action);
-- 	Age discrimination in violation of the ADEA and the NYSHRL (id. at Sixth
and Seventh Causes of Action); and
-- 	Retaliation in violation of Title VII, the ADEA, the ADA, and the NYSHRL
(id. at Fifth, Eighth, Ninth and Tenth Causes of Action). 10
The First Case Management Order (“CMO”) was issued in February 2017,
and was extended several times thereafter. See the First, Second and Third Amended CMOs
[22, 74, 78]. During the course of discovery, Kozak filed three motions to compel [29, 79,
113]. She also twice moved to strike Office Depot’s Answer [81, 134].
On July 20, 2023, I denied the second motion strike, which alternatively
sought to compel discovery and to extend the CMO deadlines, in its entirety, as well as
Office Depot’s cross-motion for sanctions [136], “without prejudice to possible renewal at a
later time, if appropriate”, explaining that “[c]onsideration of those issues in the context of a
summary judgment motion will . . . better enable me to determine whether any sanctions
against either party are warranted”. Decision and Order [142] at 4. Shortly thereafter, I held
a conference at which the parties agreed to a deadline for Office Depot’s motion for
summary judgment. See July 28, 2023 Text Oder [144].
Following Judge Vilardo’s denial of Kozak’s motion [146] to stay the
summary judgment briefing schedule (see August 11, 2023 Decision and Order [147]),
10 	As discussed infra, there is a disagreement between the parties as to whether the Complaint also
alleges a disability discrimination claim.
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Office Depot moved for summary judgment [156]. As part of Kozak’s opposition to that
motion she relies on a Declaration from her attorney [163-34], which I have treated as a
Rule 56(d) application. See Kozak’s Memorandum of Law [173-1] at 13 (characterizing the
Greco Declaration as a Rule 56(d) application).
Office Depot has moved to strike that Declaration, as well as Kozak’s 46-page
Declaration [159-3] submitted in opposition to its motion for summary judgment. Although
Kozak argues that Office Depot’s failure to produce discovery warrants the striking of its
Answer (see, e.g., Kozak’s Memorandum of Law [173-1] at 14), neither party has formally
renewed their motion for sanctions.
DISCUSSION
A 	Motion to Strike
Office Depot moves to strike the Declarations of Kozak and her attorney,
Josephine Greco, arguing that they are “rife with . . . inadmissible legal arguments” and “riddled
with inadmissible hearsay and statements of opinion”. Office Depot’s Memorandum of Law
[170-2] at 5. It further argues that to “the extent that the Kozak Declaration contradicts or
attempts to change Kozak’s deposition testimony, it is inappropriate and cannot be relied upon to
raise a genuine issue of material fact.” Id. at 11.
Rule 56(c)(4) restricts what may be included in a declaration used to oppose a
motion for summary judgment: It “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” See also Loc. R. Civ. P. (“Local Rule”) 7(a)(3) (“legal arguments” must not
be included in a declaration). It is also well settled that a party may not “create an issue of fact
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by submitting an affidavit in opposition to a summary judgment motion that, by omission or
addition, contradicts the affiant’s previous deposition testimony.” Aptive Environmental, LLC v.
Village of East Rockaway, New York, 2022 WL 211091, *2 (2d Cir. 2022) (Summary Order).
“Striking a paper is a harsh remedy and is disfavored”, since it “has consequences
beyond not considering the stricken paper in a pending motion.” Black v. Buffalo Meat Service,
Inc., 2021 WL 763723, *4 (W.D.N.Y. 2021). “If stricken, that paper also would be removed
from any appellate record, depriving Plaintiff of whatever factual or legal arguments contained
therein and depriving the Second Circuit of a complete record.” Id. Therefore, rather than
striking “a declaration because it contains hearsay, argument, or statements unsupported by
citations to the record”, courts generally just “disregard the improper portions”. Coolidge v.
United States, 2015 WL 5714237, *3 (W.D.N.Y. 2015); Disabled in Action v. City of New
York, 437 F. Supp. 3d 298, 309 (S.D.N.Y. 2020) (“[w]hen an affidavit does not comply with
the[ ] basic requirements [of Rule 56(c)(4)], the offending portions should be disregarded by the
court”).
Those portions of Kozak’s Declaration that exceed what is proper under Rule
56(c)(4) or contradict Kozak’s prior deposition testimony will be disregarded, but Kozak’s
Declaration “is not so riddled with inadmissible material” to warrant striking the Declaration in
its entirety. Black, 2021 WL 763723 at *3.
Likewise, I find no basis to strike the Greco Declaration in its entirety. As
discussed above, it functions as a Rule 56(d) application and sets forth the status of proceedings
and discovery based upon counsel’s personal knowledge. To the extent any portions exceed that
purpose, they will also be disregarded.
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For these reasons and “[g]iven the discretion this Court has in deciding whether
(or to what extent) to strike an offending paper”, the motion is denied. Black, 2021 WL 763723
at *4.
B. 	Motion for Summary Judgment
“Summary judgment is appropriate only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits 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. The party seeking summary judgment has the burden to demonstrate that no genuine issue
of material fact exists. In determining whether a genuine issue of material fact exists, a court
must examine the evidence in the light most favorable to, and draw all inferences in favor of, the
non-movant. Summary judgment is improper if there is any evidence in the record that could
reasonably support a jury’s verdict for the non-moving party.” Ford v. Reynolds, 316 F.3d 351,
354 (2d Cir. 2003).
It is “beyond cavil that summary judgment may be appropriate even in the fact-
intensive context of discrimination cases . . . . [T]he salutary purposes of summary judgment -
avoiding protracted, expensive and harassing trials - apply no less to discrimination cases than to
other areas of litigation.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.
2001). As in any other case, “[t]he non-moving party may not rely on mere conclusory
allegations nor speculation, but instead must offer some hard evidence showing that its version
of the events is not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.
1998).
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1. 	Hostile Work Environment Claim
“A plaintiff seeking relief against an employer for sexual harassment in the work
place can proceed under two theories: quid pro quo harassment and a hostile work environment.”
Distasio v. Perkin Elmer Corp., 157 F.3d 55, 62 (2d Cir. 1998). Both parties have treated
Kozak’s sexual harassment claim as being based only on the latter.
As the Second Circuit has explained:
“A hostile work environment claim requires a plaintiff to show that his or her
workplace was so severely permeated with discriminatory intimidation, ridicule,
and insult that the terms and conditions of his or her employment were thereby
altered. This test has objective and subjective elements: the misconduct shown must
be severe or pervasive enough to create an objectively hostile or abusive work
environment, and the victim must also subjectively perceive that environment to be
abusive. The incidents typically must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive. A single
incident may qualify, but to do so it must be extraordinarily severe. Furthermore,
the plaintiff must demonstrate that the conduct occurred because of his protected
status . . . and also that a specific basis exists for imputing the conduct that created
the hostile environment to the employer”.
Agosto v. New York City Department of Education, 982 F.3d 86, 101-02 (2d Cir. 2020). The
standards for assessing Kozak’s hostile work environment claim are the same under Title VII and
the NYSHRL. See Summa v. Hofstra University, 708 F.3d 115, 123-24 (2d Cir. 2013).
The parties have different views of the conduct relevant to Kozak’s hostile work
environment claim. Office Depot focuses primarily on McGovern telling Kozak he liked her and
the following four instances of alleged touching that occurred between June/July of 2014 through
March 2015:
-- 	During a store visit in June or July of 2014, McGovern told Kozak “good job” and
shook her hand with his right hand and rubbed her arm from her elbow up to her shoulder with
his left hand, stroking back and forth;
-- 	During a visit to Store #3307 in October 2014, McGovern touched Kozak’s neck,
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shoulders, back, bra strap, and bra clasps while standing approximately one to two
feet away from her;
-- 	During a visit to Store #6502 in February 2015, McGovern rubbed Kozak’s back,
bra strap, and bra clasp; and
-- 	During a visit to Store #6502 in March 2015, McGovern rubbed his hand on her
back, bra strap, and bra clasp. Office Depot’s Memorandum of Law [156-3] at 28.
As the Second Circuit has recognized, “[d]irect contact with an intimate body part
constitutes one of the most severe forms of sexual harassment.” Redd v. New York Division of
Parole, 678 F.3d 166, 177 (2d Cir. 2012) (three incidents of contact with the plaintiff’s breasts
over a period of five months was sufficient to defeat summary judgment). Whether the alleged
contacts here, which fall below that threshold, rise to the level of a hostile work environment is
more difficult to determine:
“Casual contact that might be expected among friends - a hand on the shoulder, a
brief hug, or a peck on the cheek - would normally be unlikely to create a hostile
environment in the absence of aggravating circumstances such as continued
contact after an objection. And even more intimate or more crude physical acts -
a hand on the thigh, a kiss on the lips, a pinch of the buttocks - may be
considered insufficiently abusive to be described as ‘severe’ when they occur in
isolation. But when the physical contact surpasses what (if it were consensual)
might be expected between friendly coworkers . . . it becomes increasingly
difficult to write the conduct off as a pedestrian annoyance.”
Id.
However, I need not decide whether the touching incidents alone were sufficiently
severe or pervasive to create an objectively hostile work environment because, as Kozak notes,
other incidents, including, in particular, the May 27, 2015 incident, can be considered in making
this determination. See Kozak’s Memorandum of Law [163-35] at 9-13. As the Second Circuit
has explained, “[f]acially neutral incidents may be included . . . among the ‘totality of the
circumstances’ that courts consider in any hostile work environment claim, so long as a
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reasonable fact-finder could conclude that they were, in fact, based on sex. But this requires
some circumstantial or other basis for inferring that incidents sex-neutral on their face were in
fact discriminatory.” Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002).
“Circumstantial evidence that facially sex-neutral incidents were part of a pattern
of discrimination on the basis of gender may consist of evidence that the same individual
engaged in multiple acts of harassment, some overtly sexual and some not.” Townsend v. New
York State Department of Corrections and Community Supervision, 2012 WL 4510044, *5
(W.D.N.Y. 2012). Such facially neutral acts may include “a supervisor heap[ing] abuse on the
plaintiff because she had rejected his sexual advances. So long as there is some evidentiary basis
for inferring that facially sex-neutral incidents were motivated by the plaintiff’s gender, the
ultimate question of whether such abuse was ‘because of’ the plaintiff’s gender . . . is a question
of fact for the factfinder.” Kaytor v. Electric Boat Corp., 609 F.3d 537, 548 (2d Cir. 2010). See
also Edwards v. Khalil, 2016 WL 1312149, *14 (S.D.N.Y. 2016) (“[t]he ‘harassing conduct need
not be motivated by sexual desire to support an inference of discrimination on the basis of
sex.’. . . [A]buse may be considered ‘based on gender’ when an individual harasses a plaintiff in
retaliation for the plaintiff’s rejection of unwanted sexual advances”).
The hostile work environment alleged by Kozak is more expansive than just the
four instances of unwanted touching and McGovern telling Kozak he liked her. In particular, the
alleged harassment includes the May 27, 2015 incident, which was part of the alleged conduct
McGovern directed to Kozak after she was not receptive to his advances. In Banks v. General
Motors, 81 F.4th 242 (2d Cir. 2023), the Second Circuit addressed a similar incident:
“When Rush [a manager] confronted Banks [the plaintiff] over her decision to
dismiss a contractor . . . -- a decision within her discretion as Safety Supervisor --
he shook a rolled-up document in her face and started yelling at her in a loud and
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aggressive manner. Rush could be heard yelling from 50 feet away, his behavior
alarmed other colleagues, and Banks was so intimidated by his tirade and physically
threatening demeanor that she eventually withdrew the dismissal order. Another
plant employee, who went to Banks’s office when he heard Rush yelling, was so
concerned that he was prepared to physically protect Banks from Rush. Gouthro,
whose office was 50 feet away from the altercation, told Banks that the yelling was
so loud that she thought it was a drunk employee. Banks alleges that this incident
was so severe that it compelled her to take disability leave”.
Id. at 263-64. Based on these circumstances, the Second Circuit concluded that “a jury could
reasonably find that Rush’s reaction to Banks’s discretionary decision was disproportionate and
motivated by discriminatory animus”. Id. at 264.
Crediting Kozak’s version of events, the record demonstrates that after she did not
respond to McGovern’s advances, which included four instances of unwanted touching, his
conduct shifted to laying a foundation for her termination. These efforts culminated in the May
27, 2015 incident with McGovern taking actions so severe and disproportionate to this, or any,
workplace encounter, that it resulted Kozak filing a police report and taking a leave of absence.
Considering these circumstances as a whole and giving Kozak every favorable inference (as I
must), I conclude that a reasonable jury could find that the workplace was hostile. See
Richardson-Holness v. Alexander, 196 F. Supp. 3d 364, 370 (E.D.N.Y. 2016) (concluding that a
reasonable jury could find the plaintiff’s workplace hostile where, inter alia, “after plaintiff
rejected defendant's advances, he repeatedly rebuked her with a severity that allegedly drove one
witnessing colleague to tears and required plaintiff to seek inpatient care”).
Office Depot’s reliance on Mormol v. Costco Wholesale Corp., 364 F.3d 54 (2d
Cir. 2004) (Memorandum of Law [156-3] at 29; Reply Memorandum of Law [169] at 18) does
not compel a different conclusion. While it bears some similarities, unlike here, the plaintiff did
not “claim that the incidents were physically threatening . . . or that they interfered with her
ability to do her job.” Mormol, 364 F.3d at 59.
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However, establishing a hostile work environment does not the end of the inquiry.
As discussed above, in order “to recover against the employer, the plaintiff must establish a basis
to impute the harassing conduct to the employer.” Susko v. Romano’s Macaroni Grill, 142 F.
Supp. 2d 333, 338 (E.D.N.Y. 2001).
a. 	The Faragher/Ellerth Defense11
“An employer is presumed absolutely liable if the victim’s supervisor perpetrated
the harassment”, but “may interpose [the Faragher/Ellerth] affirmative defense to rebut that
presumption.” Harris v. Franziska Racker Centers, Inc., 340 F. Supp. 2d 225, 232 (N.D.N.Y.
2004). “The express purpose of the Faragher/Ellerth defense is to incentivize both employers
and employees to work towards preventing and minimizing the harm caused by sexual
harassment . . . . Thus, employers must make reasonable efforts to both thwart and remedy
hostile work environments, and employees risk being barred from asserting their claim if they
unreasonably fail to mitigate harm.” Cajamarca v. Regal Entertainment Group, 863 F. Supp. 2d
237, 252 (E.D.N.Y. 2012).
“The employer may raise the [Faragher/Ellerth] defense . . . only if one of two
[initial] elements is met: either (1) the employee’s supervisor took no ‘tangible employment
action,’ which involves an official company act, against the employee; or (2) any tangible
employment action taken against the employee was not part of the supervisor’s discriminatory
11 	Named for Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742 (1998). Although “[i]t is unclear whether the Faragher/Ellerth defense applies to
NYSHRL claims”, I will follow “the balance of authority in this Circuit applies the Faragher/Ellerth
defense to claims under the NYSHRL.” Green v. New York City Transit Authority, 2020 WL 5632743,
*10 (S.D.N.Y. 2020).
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harassment . . . . Otherwise, the employer is strictly liable for the supervisor’s misconduct.”
Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir. 2006).
In addition to that threshold showing, the employer must establish “that (1) ‘[it]
exercised reasonable care to prevent and correct promptly any [discriminatory] harassing
behavior,’ and (2) ‘the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’”
Id., quoting Faragher, 524 U.S. at 807. 12 The employer “bears the burden of establishing the
applicability of the Faragher/Ellerth affirmative defense and its entitlement to the same.”
Lolonga-Gedeon v. Child & Family Services, 144 F. Supp. 3d 438, 441 (W.D.N.Y. 2015).
Office Depot argues that Kozak cannot sustain a sexual harassment hostile work
environment claim against it “for four . . . reasons: (1) she did not suffer a tangible adverse
employment action as the result of McGovern’s alleged conduct; (2) Office Depot exercised
reasonable care to prevent sexually harassing behavior; (3) Kozak failed to avail herself of Office
Depot’s reporting procedures with respect to her sexual harassment claim; and (4) she does not
and cannot provide a legitimate basis for failing to do so.” Office Depot’s Memorandum of Law
[156-3] at 31-32.
12 	Office Depot points to a different test for the Faragher/Ellerth defense that has also been
recognized by the Second Circuit: “the employer is entitled to prevail if . . . the employer can show that it
‘exercised reasonable care to prevent and correct promptly any sexually harassing behavior,’ and (a) ‘the
plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise’ . . . or (b) the employee complained and the
employer took prompt and appropriate corrective action in response to the complaint”. Van Alstyne v.
The Ackerley Group, Inc., 8 F. App’x 147, 152 (2d Cir. 2001) (Summary Order) (emphasis added). See
Office Depot’s Memorandum of Law [156-3] at 31. However, Office Depot does not rely on that portion
of the test recognized in Van Alstyne, so it is unnecessary for me to reconcile the two tests or whether
Office Depot satisfied that prong. See id. at 31-32 (identifying the four reasons why the defense applies).
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i. 	Tangible Employment Action
A tangible employment action is 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”. Vance v. Ball State University, 570 U.S. 421,
431 (2013). “[E]mployers may not raise the [Faragher/Ellerth] defense when the supervisor’s
harassment culminates in a tangible employment action”. Ferrara v. Sterling, Inc., 2024 WL
485742, *1 n. 3 (2d Cir. 2024) (Summary Order) (emphasis added). Consequently, “[w]here the
tangible employment action occurred for a reason other than harassment, the tangible
employment action does not bar the defense.” Delgado v. City of Stamford, 2015 WL 6675534,
*29 (D.Conn. 2015).
Office Depot argues that McGovern took no tangible employment action against
Kozak because he “did not make the decision to terminate her employment, which occurred due
to her own false claim”. Office Depot’s Memorandum of Law [156-3] at 32. I agree. See Clarke
v. Mount Sinai Hospital, 2007 WL 2816198, *8 (E.D.N.Y. 2007) (“[t]here is nothing in the
record to link plaintiff’s rejection of her supervisor’s allege[d] sexual advances to [her
termination]”, where the harasser “did not participate in making the decision to discharge . . . .
[or] . . . the investigation of the incident”); Ferraro, 440 F.3d at 102 (plaintiff’s demotion and
reduction of salary were tangible employment actions, but since the employer had established
that “these actions were independent of [her supervisor’s] discriminatory harassment” of the
plaintiff, the employer was entitled to raise the Faragher/Ellerth defense).
In response, Kozak points to several other purported tangible employment actions
taken by McGovern. See Kozak’s Memorandum of Law [163-35] at 16-17 (Kozak “suffered
multiple tangible employment actions”). Among the alleged actions she identifies are being
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“forced out of work” as a result of the May 27 incident with McGovern, being “thwarted from
receiving supplemental disability benefits by Office Depot’s benefits administrator until . . .
October 29, 2015”, and being “wrongfully written up by McGovern”. Id. at 17.
I question whether these constitute tangible employment actions,13 or that
McGovern’s harassment culminated in any of these purported tangible employment actions, but
these are not addressed by Office Depot despite having the burden on this issue - and on this
motion - in demonstrating its entitlement to the Faragher/Ellerth defense. In any event, even if
Kozak was subjected to no tangible employment action or McGovern’s harassment did not
culminate in a tangible employment action, for the reasons that follow Office Depot has not
otherwise demonstrated its entitlement to summary judgment on the defense.
Office Depot must establish that it “exercised reasonable care to prevent and
correct promptly any [discriminatory] harassing behavior”, and that Kozak “unreasonably failed
to take advantage of any preventive or corrective opportunities provided by [Office Depot] or to
avoid harm otherwise.” Faragher, 524 U.S. at 807.
ii. 	Reasonable Care
“An employer may demonstrate the exercise of reasonable care, required by the
first element, by showing the existence of an antiharassment policy during the period of the
plaintiff’s employment, although that fact alone is not always dispositive.” Miller v. New York
13 	“Wrongful” write up - see Sarkis v. Ollie’s Bargain Outlet, 2013 WL 1289411, *11
(W.D.N.Y. 2013), aff’d, 560 F. App’x 27 (2d Cir. 2014) (“it is well settled that a negative performance
evaluation by itself is not a ‘tangible employment action’ within the meaning of the Faragher/Ellerth
defense”). “Forced out of work” - see Finnerty v. William H. Sadlier, Inc., 176 F. App’x 158, 161 (2d Cir.
2006) (Summary Order) (“a constructive discharge resulting from a hostile work environment does not
constitute a tangible employment action because generally a constructive discharge, like harassment itself,
is not ‘ratified or approved by the employer’”); Green v. New York City Transit Authority, 2020 WL
5632743, *9 n. 7 (S.D.N.Y. 2020).
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State Police, 2022 WL 1133010, *3 (2d Cir. 2022). “The employee may then rebut the
employer’s proof by showing that the sexual harassment policy is not effective”. O’Dell v. Trans
World Entertainment Corp., 153 F. Supp. 2d 378, 388 (S.D.N.Y. 2001), aff’d, 40 F. App’x 628
(2d Cir. 2002).
It is undisputed that during the relevant time period Office Depot had an Anti-
Harassment Policy that applied to “unwelcome touching”, which established the following
complaint procedure:
“If an associate believes they have been harassed or they observe an incident of
harassment contrary to this policy, they should report the incident immediately to
their supervisor before the conduct becomes severe or pervasive. However, if the
supervisor is the alleged harasser or if the associate feels uncomfortable talking to
his/her supervisor, the associate alternatively has the following options:
 	Inform his/her supervisor’s supervisor, the location manager(s) or the
Human Resources Representative . . . .
 	Office Depot South: contact the Hotline at . . . .
 	Office Depot North: contact the Tipline at . . . .
These processes initiate at a level that bypasses the individual allegedly involved.
Human Resources is always available as a point of contact and is involved in all
harassment issues.
Associates who have experienced or observed conduct they believe is contrary to
this policy have an obligation to take advantage of this complaint process.”
[156-1] at 107-08.
Kozak does not dispute that she knew that Office Depot maintained a policy for
dealing with the discriminatory behavior in question. Nor does she dispute the reasonableness of
Office Depot’s Anti-Harassment Policy or its complaint procedures. See Kozak’s Memorandum
of Law [163-35] at 18.
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iii. 	Unreasonable Failure to Use the Anti-Harassment Policy
Kozak argues that she availed herself of Office Depot’s Anti-Harassment Policy
by making “multiple complaints to McGovern that his conduct was unwelcome”. Kozak’s
Memorandum of Law [163-35] at 18. She concedes that these were not verbal or written
complaints, but instead contends that she communicated to McGovern that the conduct was
unwelcome by “pull[ing] away” from his touching. See Kozak deposition transcript [159-4] at
90, 95, 139.
Office Depot’s Anti-Harassment Policy recognizes that employees should
immediately “report” harassment to an employee’s supervisor ([156-1] at 107), but does not
define what form it should take or how it must be communicated. “Report has a “broad ordinary
meaning”. Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 408 (2011). “A ‘report’
ranges from ‘something that gives information’ or a ‘notification,’ Websters Third New
International Dictionary” to “‘[a]n official or formal statement of facts or proceedings,’ Black’s
Law Dictionary 1300 (6th ed.1990).” Id. at 407-08. See also Miller, 2022 WL 1133010, at *3
(assuming, without deciding, that the plaintiff’s “responses to [the harasser’s] alleged
comments”, which “ranged from disregard to deflection to mild chastisement to questioning”,
constituted “informal complaints”).
In any event, even assuming that Kozak’s actions could be construed as an
informal report, such “informal complaints to h[er] supervisor - and alleged harasser - are not
enough for [her] to show (as [s]he must to defeat the affirmative defense) that [s]he took
advantage” of Office Depot’s complaint procedures. Miller, 2022 WL 1133010 at *3. It would
be insufficient for Kozak “to complain only to the harasser because, as a realistic and practical
matter, there are other channels that are adequately indicated and are accessible and open.” Id.
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When asked at her deposition whether she complained “to anyone else at Office
Depot about the times prior to May 27th, 2015?”, Kozak testified “No”. Kozak deposition
transcript [156-1] at 70, deposition page 240. Office Depot relies on this testimony to establish
that “she did not make any complaint regarding the sexually harassing behavior that she now
alleges.” Office Depot’s Memorandum of Law [156-3] at 36 (emphasis in original).
Kozak’s attempts to circumvent that testimony by first arguing that she
complained to Szpylman, her Assistant Store Manager of Store #3307, about the incident with
McGovern, and that Szpylman had a “two-fold responsibility” of reporting it because he
observed it and because Kozak told him that she was afraid to report it, but Szpylman was
“untrained about what to do in these circumstances”. Kozak’s Memorandum of Law [163-35] at
22-23.
The fact that Office Depot’s Anti-Harassment Policy directed employees to report
incidents of harassment (see [156-1] at 107), does not impute liability to Office Depot. See
Russell v. County of Rockland, 2017 WL 3189873, *5 (S.D.N.Y. 2017) (“[t]he fact that the
Policy directs all employees to report any observed harassment does not mean that the purported
failure by low-level corrections officers in their capacities as union shop stewards allows
knowledge of the harassment to be imputed to Rockland County”). “[I]t would be anomalous if
under Ellerth a plaintiff’s failure to take advantage of multiple complaint procedures relieved the
employer of liability, but her co-worker’s failure to follow such procedures on her behalf
imposed liability on the employer.” Id. (emphasis in original).
Kozak further argues that “beginning on May 28, 2015, [she] . . . report[ed] the
hostile work environment and discrimination, and sexual harassment to human resources”.
Kozak’s Memorandum of Law [163-35] at 23. In particular, Kozak points to Celmer’s May 28,
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2015 e-mail to Kendrick ([156-1] at 155), stating that Kozak complained of “a hostile work
environment and that she did not feel that [McGovern] treated the male [Store Managers] in this
manner”. See Kozak’s Memorandum of Law [163-35] at 20.
Although Kozak did not expressly complain of any of the alleged touching
incidents to Celmer, she broadly complained of experiencing a hostile work environment
because of her sex and tied it to the May 27 th incident, conduct allegedly part of McGovern’s
sexual harassment. See Adams v. O’Reilly Auto, Inc., 2007 WL 5528404, *11 (W.D. Mo. 2007),
aff’d, 538 F.3d 926 (8th Cir. 2008) (“[h]ostile work environment claims encompass claims of
sexual harassment”); Hildebrandt v. Illinois Department of National Resources, 347 F.3d 1014,
1033 (7th Cir. 2003) (sexual “[h]arassment is not limited to acts of sexual desire, but rather is a
broad term which encompasses all forms of conduct that unreasonably interfere with an
individual’s work performance or create an intimidating, hostile, or offensive working
environment”).
Giving Kozak the benefit of every favorable inference, a reasonable juror could
conclude that Kozak availed herself of Office Depot’s complaint procedure for at least some of
McGovern’s allegedly sexually harassing conduct. The cases relied upon by Office Depot are
dissimilar and do not compel a different conclusion. See Office Depot’s Memorandum of Law
[156-3] at 35 (citing Setelius v. National Grid Electric Services LLC, 2014 WL 4773975, *28
(E.D.N.Y. 2014) (employee’s “generalized complaints about Delach’s conduct that in no way
referenced Plaintiff’s belief that such conduct was discriminatory or otherwise gender-based”,
“cannot reasonably be described as an effort to utilize National Grid’s Antidiscrimination
Policy”) and Schmidt v. State University of New York at Stonybrook, 2006 WL 1307925, *13
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(E.D.N.Y. 2006) (“‘generalities’” such as complaints about “feeling uncomfortable” are “not
enough to put an employer on notice” of sexual harassment).
In any event, even if this complaint was insufficient to put Office Depot on notice
that Kozak was complaining of sexual harassment, “a failure to report sexual harassment may be
excused where the employee has ‘a credible fear that her complaint would not be taken seriously
or that she would suffer some adverse employment action as a result of filing a complaint.’”
Chin-McKenzie v. Continuum Health Partners, 876 F. Supp. 2d 270, 285 (S.D.N.Y. 2012)
(quoting Leopold v. Baccarat, 239 F.3d 243, 246 (2d Cir. 2001)). “A credible fear must be based
on more than the employee’s subjective belief. Evidence must be produced to the effect that the
employer has ignored or resisted similar complaints or has taken adverse actions against
employees in response to such complaints.” Leopold, 239 F.3d at 246.
First, Kozak states that on February 12, 2015, she told McGovern that she
believed that an employee had made a complaint against her, and he responded that that she had
“nothing to worry about” because he “had three complaints against” him, but “nothing was
done”. Kozak Declaration [159-3], ¶35; Kozak’s Memorandum of Law [163-35] at 19. Kozak
states that this led her to believe that even if she complained, “nothing would be done about it.”
Id.
I question whether this testimony would be sufficient to excuse Kozak’s failure to
complain of McGovern’s sexual harassment. Kozak’s belief that Office Depot’s complaint
mechanism would be ineffective is difficult (if not impossible) to reconcile with the fact that
Kozak promptly complained about McGovern following the May 27, 2015 incident and it offers
no justification as to why she did not expressly complain of his sexual harassment at that time.
See Office Depot’s Memorandum of Law [156-3] at 36. Although not argued by Office Depot, I
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also question whether the failure to complain of sexual harassment can be excused without
evidence that Office Depot had ignored other similar complaints. Compare Brewster v. City of
Poughkeepsie, 447 F. Supp. 2d 342, 355–56 (S.D.N.Y. 2006) (“[p]laintiff may have had reasons
that were, for her personally, sufficient to support a decision not to report her supervisors’
behavior, but that cannot be part of our analysis. Plaintiff did not produce any evidence that her
employer has ignored or resisted similar complaints or has taken adverse actions against
employees in response to such complaints”) with Chin-McKenzie, 876 F. Supp. 2d at 285
(although the plaintiff offered no evidence that the employer had taken retaliatory actions against
others, she was found to have a credible fear of retaliation from the fact that “the alleged
harasser’s wife held a high position in the department in which [the plaintiff] worked”).
In any event, Kozak also states in her Declaration that she attempted to tell Bryan
about McGovern’s sexually harassing conduct during their June 8, 2015 conversation, but that
Bryan “did not allow me to interject and tell her the details of what happened on May 27, 2015
and prior occasions”. Kozak Declaration [159-3], ¶52. Likewise, she states that during their June
18, 2015 conversation “I kept trying to tell . . . Bryan of the sexually harassing conduct of . . .
McGovern on May 27, 2015 and earlier dates towards me, but . . . Bryan had no interest in
hearing the truth”. Id., ¶54. 14 Kozak’s allegations are supported by the Declaration of her
husband. See John Kozak Declaration [159-15], ¶¶15-16.
These are among the paragraphs of Kozak’s Declaration that Office Depot seeks
to strike. It argues that these particular statements impermissibly contradict Kozak’s
unequivocal deposition testimony that she did not complain to anyone at Office Depot, other
14 	Although analyzed under this prong of the Faragher/Ellerth defense, these arguments could be
applied to the reasonableness of Office Depot’s Anti-Harassment Policy - i.e., since HR avoids receiving
complaints, the complaint procedure was not reasonable.
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than McGovern, about McGovern’s pre-May 27, 2015 conduct. See Office Depot’s Reply
Memorandum of Law [174] at 6-7.
It is well settled that “a party may not create an issue of fact by submitting an
affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts
the affiant’s previous deposition testimony.” Crawford v. Franklin Credit Management Corp.,
758 F.3d 473, 482 (2d Cir. 2014). “However, this rule does not apply in two situations: (1)
where the subsequent sworn statement either does not actually contradict the affiant’s prior
testimony or addresses an issue that was not, or was not thoroughly, explored in the deposition;
and (2) where the deposition testimony at issue is contradicted by evidence other than the
deponent’s subsequent affidavit.” Wang v. Leo Chuliya, Ltd, 2024 WL 324789, *3 (S.D.N.Y.
2024).
Kozak’s Declaration supplements, rather than contradicts, her deposition
testimony. At her deposition Kozak was merely asked if she complained about McGovern’s
sexual harassment (deposition transcript [156-1] at 70, deposition page 240), not whether she
attempted to report it or what prevented her from reporting it. In fact, consistent with her
Declaration, Kozak testified that she wanted to speak to Bryan “[t]o let her know what happened
on the 27th and the other times that . . . he touched me”. Kozak deposition transcript [156-1] at
70-71, deposition pages 241-42. Crediting Kozak’s Declaration for purposes of this motion, it is
sufficient to create a triable issue of fact as to Office Depot’s entitlement to the Faragher/Ellerth
defense.
For these reasons, I recommend that this portion of Office Depot’s motion be
denied.
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2. 	Discrimination Claims15
“[M]ost discrimination and retaliation is not carried out so openly as to provide
direct proof of it.” Sanders v. New York City Human Resources Administration, 361 F.3d 749,
755 (2d Cir. 2004). Consequently, “plaintiffs asserting disparate treatment claims may show
discriminatory intent by either direct or circumstantial evidence of animus”. Wilson v.
Connecticut Department of Transportation, 2023 WL 8476262, *6 (D. Conn. 2023).
a. 	Direct Evidence
“[D]irect evidence does not necessarily mean the proverbial smoking gun, i.e., an
unequivocal statement by an employer that an employee is being terminated for an impermissible
reason. Rather, direct evidence is evidence ‘directly reflecting the alleged discriminatory
attitude.’” Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 768 (S.D.N.Y. 2002) (quoting Lightfoot v.
Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997) (emphasis in original). As Kozak notes,
“[d]irect evidence [of discrimination] includes ‘statements by persons involved in the decision-
making process that may be viewed as directly reflecting the alleged discriminatory attitude.’”
Kozak’s Memorandum of Law [163-35] at 24 (quoting Lightfoot, 110 F.3d at 913 (emphasis
added)).
Kozak points to McGovern’s statement that “‘heads are going to roll’”, as “direct
evidence of the discriminatory animus of the decision maker, McGovern”. Id. However, there is
no evidence that McGovern was the decisionmaker in terminating Kozak, or that he was part of
the decision-making process. See Laboy v. CSC Holdings, LLC, 2021 WL 4205179, *10
(E.D.N.Y. 2021) (“it is undisputed that the one supervisor whom she claims acted
15 	Although the parties lump the discrimination claims together, they are each subject to different
standards and supporting evidence. Therefore, I have treated them separately.
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inappropriately towards her . . . did not have any input on the decision to . . . terminate her
employment. As such, his comments are no more than stray remarks and his actions cannot
support an inference that [the plaintiff’s] termination was due to discriminatory animus”).
In any event, “[r]egardless of whether a plaintiff proceeds by direct or indirect
evidence, she still must meet the . . . statutory standard of causation”. Manon v. 878 Education,
LLC, 2015 WL 997725, *4 (S.D.N.Y. 2015). For the reasons that follow, Kozak has failed to do
so.
b. 	Circumstantial Evidence
Discrimination cases based on circumstantial evidence brought pursuant to Title
VII, the ADEA, the ADA, and the NYSHRL are analyzed under the familiar burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)
(Title VII); Gachette v. Metro-North Commuter Railroad Co., 804 F. App’x 65, 67 (2d Cir.
2020) (Summary Order) (NYSHRL); Gallegos v. Tompkins Consolidated Area Transit, Inc., 785
F. App’x 16, 17 (2d Cir. 2019) (Summary Order) (ADEA); Greene v. City of West Haven, 201
F.3d 431 (2d Cir. 1999) (ADA).
Under the McDonnell Douglas framework, a plaintiff must establish a prima facie
claim of discrimination by demonstrating: “(1) that she is a member of a protected class; (2) that
she was qualified for employment in the position; (3) that she suffered an adverse employment
action; and, in addition, has (4) some minimal evidence suggesting an inference that the
employer acted with discriminatory motivation”. Littlejohn v. City of New York, 795 F.3d 297,
307 (2d Cir. 2015). If a prima facie showing is made, the burden of production shifts to the
employer “to come forward with its justification for the adverse employment action against the
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plaintiff”, and then the burden shifts back to the “plaintiff to show that the defendant’s stated
reason is pretextual”. Id. at 307-08.
The burden at the final step of that framework differs among these claims:
Whereas the final step under Title VII requires the employee to demonstrate that discrimination
was a “motivating factor” in the unlawful employment practice, Radwan v. Manuel, 55 F.4th
101, 130 (2d Cir. 2022) (Summary Order), both the ADEA and the ADA require the employee to
establish but-for causation. See Lively v. WAFRA Investment Advisory Group, Inc., 6 F.4th 293,
303 (2d Cir. 2021); Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019). The same
standard applies to the companion NYSHRL claims. See Gilani v. Teneo, Inc., 2021 WL
3501330, *12 n. 24 (S.D.N.Y. 2021), aff’d, 2022 WL 17817895 (2d Cir. 2022) (“discrimination
claims brought pursuant to the NYSHRL are governed by the same standards as govern ADA,
ADEA, and Title VII claims”).
Office Depot states that “the only adverse employment action that [Kozak]
suffered” was “her termination”, which is not disputed by Kozak. Office Depot’s Memorandum
of Law [156-3] at 10. Even if Kozak was able to establish a prima facie showing of
discrimination, Bryan’s June 30, 2015 e-mail to Kozak demonstrates that Office Depot has
offered a legitimate, non-discriminatory reason for her termination. See Ruiz v. County of
Rockland, 609 F.3d 486, 492 (2d Cir. 2010) (“[m]isconduct may certainly provide a legitimate
and non-discriminatory reason to terminate an employee”). The crux of the parties’ dispute turns
on whether Kozak has established a triable issue of fact that the purported reason for her
termination was pretextual. See Kozak’s Memorandum of Law [163-35] at 34.
It is a “faulty assumption that termination for cause necessarily precludes the
possibility of termination motivated by unlawful animus.” Leon v. New York City Department
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of Education, 612 F. App’x 632, 635 (2d Cir. 2015) (Summary Order) (emphasis in original).
However, since courts do not “sit as a super-personnel department that reexamines employers’
judgments”, Ya-Chen Chen v. City University of New York, 805 F.3d 59, 73 (2d Cir. 2015), it is
not enough for a plaintiff to disagree with an employer’s personnel decision. Instead, the
plaintiff must offer sufficient evidence for a jury to find pretext. See Reichert v. Perdue, 786 F.
App’x 294, 298 (2d Cir. 2019) (Summary Order) (“[i]n the absence of evidence that these
decisions were motivated by . . . discrimination, we will not ‘sit as a super-personnel department
that reexamines [the employer’s] judgments’”); Zenie v. College of Mount Saint Vincent, 2021
WL 6105373, *1 (2d Cir. 2021) (Summary Order) (“because Zenie . . . presents no evidence that
the College’s [personnel decision] was pretext for discrimination, we must defer to the College’s
judgment”).
i. 	Age Discrimination
“The condition that a plaintiff’s age must be the ‘but for’ cause of the adverse
employment action is not equivalent to a requirement that age was the employers only
consideration, but rather that the adverse employment action would not have occurred without
it.” Delaney v. Bank of America Corp., 766 F.3d 163, 169 (2d Cir. 2014) (emphasis in original).
“Showing pretext requires more than simply some evidence”. Verne v. New York City
Department of Education, 2023 WL 6387274, *8 (S.D.N.Y. 2023). Instead, it requires
“sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons
proffered by the defendant were false, and that more likely than not discrimination was the real
reason for the employment action.” Angioletti v. Chao, 720 F. App’x 41, 47 (2d Cir. 2017)
(Summary Order); Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 92 (2d Cir.
1996) (“[t]o defeat a defendant’s properly supported motion for summary judgment, a plaintiff
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must show that there is a material issue of fact as to whether (1) the employer’s asserted reason
for discharge is false or unworthy of belief and (2) more likely than not the unlawful basis was
the real reason for the discharge”); Granica v. Town of Hamburg, 237 F. Supp. 3d 60, 75
(W.D.N.Y. 2017) (“[i]t is not enough for the plaintiff to produce some evidence of
discrimination; rather, to survive a motion for summary judgment, the plaintiff must present both
sufficient evidence that the purported non-discriminatory reason was false and evidence that age
was the but-for cause of the adverse actions”).
Because this is a two-part test, “it is not enough to show that [the employer’s]
reasons are inaccurate or even false, as the key question remains what motivated the challenged
actions.” Tromblee v. New York State Office for People with Developmental Disabilities, 2023
WL 2655471, *24 (N.D.N.Y. 2023). However, “[t]he falsity of a proffered reason can
demonstrate that the employer’s asserted reason was pretextual, and that the employer was
actually motivated by discriminatory animus, if the circumstances demonstrate either that the
employer knew the proffered reason was false or that the reason was so unworthy of credence
that the employer could not have believed its truth in good faith.” D’Alessandro v. Arrow
Pharmacy Holdings, LLC, 2023 WL 1967245, *9 (D. Conn. 2023). Hence, where there are
“weaknesses, implausibilities, inconsistencies, or contradictions in an employer’s offered reason
for its adverse action”, King v. Aramark Services, Inc., 2024 WL 1188985, *12 (2d Cir. 2024)
(Summary Order), a reasonable juror could find that it was pretextual - “in other words, false,
unworthy of belief, or implausible”. D’Alessandro, 2023 WL 1967245 at *9. See also Fleming v.
MaxMara USA, Inc., 371 F. App’x 115, 118 (2d Cir. 2010) (Summary Order) (“[o]nly where an
employer’s business decision is so implausible as to call into question its genuineness should this
Court conclude that a reasonable trier of fact could find that it is pretextual”).
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Guided by these standards and giving Kozak the benefit of every favorable
inference, I conclude that she nevertheless fails to raise a material issue of fact as to whether the
reasons given by Office Depot for her termination were false, unworthy of belief, implausible, or
motivated (in whole or even in part) by discrimination.
The record demonstrates that the results of Bryan’s investigation provided a
reasonable and sufficiently supported good-faith reason for terminating Kozak. While Bryan’s
investigation was prompted by Kozak’s allegations against McGovern, the investigation quickly
shifted to Kozak when Bryan received Cannon’s detailed handwritten account of Kozak’s
alleged misconduct, and then interviewed Cannon. See [156-1] at 167, 169-74. At the very least,
Bryan also had McGovern’s written statement (see id. at 178-79), which corroborated Cannon’s
claim that Kozak had concocted her claim against McGovern. Additionally, Cannon’s statement
was at least partially corroborated by Newman’s earlier report that Kozak had been intoxicated at
work (see id. at 150, 176) and Hahn’s report that - although he did not hear the entire statement -
Kozak’s husband said “if anybody has a problem with [Kozak] or makes her upset”. Id. at 166.
Kozak’s challenge focuses on the correctness of Bryan’s investigation and its
conclusions, arguing that Cannon was “an unreliable witness”, with a motive to lie. Kozak’s
Memorandum of Law [163-35] at 37. These arguments are difficult to reconcile with the fact
that Kozak herself identified Cannon to Kendrick as someone she should speak with as part of
her investigation. See Kendrick’s May 29, 2015 e-mail [156-1] at 154 (Kozak “recommended
that I speak with . . . Newman, and . . . Cannon”). Kozak also identifies nothing in Cannon’s
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personnel file at that time16 that would have alerted Bryan of a potential movie to lie. 17 In fact,
Kozak’s 2014 Manager Evaluation of Cannon completed in March 2015 was that she “Meets
Expectations” - the same positive assessment she points to receiving from McGovern before his
allegedly retaliatory conduct began. [161-25] at 12-17. See Kozak’s Memorandum of Law [163-
35] at 10 (McGovern’s “objective was to force Kozak to . . . be terminated as the result of
performance problems despite her recent ‘meets expectations’ performance evaluation”).
In any event, the Second Circuit has explained that “the reliability of the evidence
supporting [the employer’s] conclusions” is not the critical issue, because “[i]n a discrimination
case . . . [the court is] decidedly not interested in the truth of the allegations against plaintiff”,
but rather “in what ‘motivated the employer’”. McPherson v. New York City Department of
Education, 457 F.3d 211, 216 (2d Cir. 2006) (emphasis in original); Jimenez v. Delta Airlines,
Inc., 2023 WL 2910530, *2 (2d Cir. 2023) (Summary Order).18 So long as “an employer has a
16 	Kozak points to a PIP and a PCD issued by Bland to Cannon months after Kozak’s termination.
See [161-25] at 2-4.
17 	From the following excerpt from Pagan’s July 2, 2015 e-mail to McGovern ([160-20] at 4), it
appears that the Buffalo Police also found Cannon reliable: “The Police went to [Cannon’s] house
looking for you and [Cannon] told them that you don’t live around here. She explained the situation and
deescalated it and told her they now understand the situation and realize what [Kozak is] trying to do and
told [Cannon] that they don’t need her anymore and that she opened their eyes”.
18 	See also Hongyan Lu v. Chase Investment Services Corp., 412 F. App’x 413, 417 (2d Cir. 2011)
(Summary Order) (the plaintiff “has failed to offer sufficient evidence - aside from her own self-serving
and conclusory allegations that [the employer’s] proffered nondiscriminatory reasons for these actions are
false - to permit a reasonable factfinder to conclude that [the adverse employment action] was in fact
motivated by discriminatory animus”); Jacobs v. New York City Department of Education, 768 F. App’x
86, 88 (2d Cir. 2019) (Summary Order) (the plaintiff’s “contention that the [report that led to the adverse
employment action] is factually incorrect is unavailing, since in a discrimination case we are decidedly
not interested in the truth of the allegations against plaintiff”); Grastorf v. Community Bank, N.A., 2023
WL 2266336, *7 (W.D.N.Y.), recon. denied, 2023 WL 3570437 (W.D.N.Y. 2023) (“the Bank has a
nondiscriminatory reason for Grastorf’s discharge - the alleged falsified time records - and Plaintiff’s
mere refutation of the accuracy of that allegation does not show it to be pretextual”); Handler v. Dutchess
County Community College, 2024 WL 343091, *5 (S.D.N.Y. 2024) (where the plaintiff argued that the
defendant had “‘ignored relevant evidence that was contrary to its finding of guilt’”, including the
“existence of possible ulterior motives” by the complainants, and that its “‘neglect of such available
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good faith belief that an employee engaged in misconduct, the fact that the employer is actually
wrong is insufficient to show that the alleged misconduct is a pretext for discrimination.” Klein
v. Brookhaven Health Care Facility, 2023 WL 7413838, *8 (E.D.N.Y.), adopted, 2023 WL
6619377 (E.D.N.Y. 2023). See also Leiner v. Fresenius Kabi USA, LLC, 2019 WL 5683003, *8
(W.D.N.Y. 2019) (“[w]hat matters is that [the employer] relied on the results of its investigation
- flawed or not - as the basis to terminate [the plaintiff’s] employment, and there is no evidence
to the contrary. [The plaintiff] has thus failed to set forth sufficient evidence from which a
factfinder could reasonably determine that [the employer’s] legitimate, non-discriminatory
reason is false”); McCaskill v. ShopRite Supermarket, 2015 WL 419658, *10 (N.D.N.Y. 2015)
(even if the allegations of misconduct against the plaintiff “were false, there is no evidence from
which a fact-finder could infer that the real reason for [the] termination was discrimination.
Ultimately, it does not matter if the complaint [against the plaintiff] was true or false, because
defendant’s decision to terminate plaintiff need not be correct or even fair - it simply cannot be
discriminatory”).
Kozak points to a variety of other flaws in Bryan’s investigation into the May 27,
2015 incident. For instance, Kozak argues that that she was not given any opportunity to
respond to Cannon’s allegations, that “Kendrick did not take any notes of her conversation with
Kozak and, instead of conducting an investigation, merely forwarded the information on to
Bryan”, that “Bryan did not even speak with Kozak for over one week”, and that Bryan “simply
asked questions entirely unrelated to Kozak’s complaint of hostile work”. Kozak’s Memorandum
of Law [163-35] at 36- 37. However, “the irregularities identified in the investigation process
evidence constitutes proof of its discriminatory motive’”, the court explained that this “argument
essentially amounts to a disagreement with the panels’ findings and is therefore not sufficient evidence of
pretext”).
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are insufficient to create material issues of fact”, Klein, 2023 WL 7413838, at *9, particularly in
the absence of evidence that they were motivated by a discriminatory bias. See Bailey v. Nexstar
Broadcasting, Inc., 2021 WL 848787, *16 (D. Conn. 2021) (“[t]here is no dispute that Defendant
did not investigate the truth of the allegations raised by [one of the employee’s accusers]. But
neither the sufficiency of Defendant’s investigation nor its outcome are material as Plaintiff has
not produced evidence tending to show that the shortcuts taken or the conclusions reached during
the investigative process were because of any pre-conceived gender bias, beyond Plaintiff’s own
speculation about what motivated the decision”).
Kozak offers no evidence that Bryan - the investigator and decisionmaker - bore
any discriminatory motive. See Kinnin v. Skidmore College, 2023 WL 4072838, *2 (2d Cir.
2023) (Summary Order) (a termination was not pretextual where the plaintiff did “not allege any
discriminatory motive by [the individual], who fired her”). While Kozak argues that Bryan’s
conduct during the course of her investigation, including “investigating [her], not McGovern”
and yelling at her during their June 18, 2015 telephone call about making a false claim,
demonstrates Bryan’s “discriminatory and /or retaliatory bias” (Kozak’s April 12, 2024 letter
submission [185] at 7), this argument ignores Cannon’s written statement, which gave Bryan
reason to believe that Kozak’s complaint was untruthful and understandably shifted her
investigation from McGovern, the alleged harasser, to Kozak.
Kozak also fails to offer any evidence that Cannon - the primary witness upon
whom Bryan relied in terminating Kozak - held any discriminatory animus. See Kinnin, 2023
WL 4072838 at *2 (the plaintiff “fails to show that [the] adverse employment action was
proximately caused by a subordinate who had a discriminatory motive and intended to bring
about the adverse employment action”); Heinrich v. Xerox Corp., 2013 WL 4008736, *6
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(W.D.N.Y. 2013) (“there is no evidence that anyone who participated in the investigation or the
termination was motivated by anything other than an effort to verify the complaints made against
Plaintiff. Having conducted a thorough investigation and deciding that Plaintiff was not credible,
Xerox concluded that Heinrich’s conduct violated its Non–Harassment Policy . . . and decided
that their appropriate response was to . . . terminate Plaintiff’s employment. Accordingly,
Plaintiff failed to establish that the employer’s stated rationale is merely a pretextual coverup for
a discriminatory decision”).
Kozak points to the PIP, PCD, McGovern’s statement that “heads were going to
roll”, an alleged failure to provide her with training, and the alleged existence of a reduction in
workforce plan as support for her claim that the decision to terminate her was pretextual.
However, there is no evidence that McGovern, the PIP, PCD, the failure to receive training, or a
reduction in workforce plan played any role in her termination. See Bourara v. New York Hotel
Trades Council & Hotel Association of New York City, Inc. Employee Benefit Funds, 2020 WL
5209779, *14 (S.D.N.Y. 2020), aff’d, 2021 WL 4851384 (2d Cir. 2021) (Summary Order)
(remarks demonstrating alleged discriminatory animus were not sufficient to raise a triable issue
of fact regarding pretext, where they were not “connected to the decision-making process that
resulted in Plaintiff’s termination”); Osinoff v. Nuvance Health d/b/a Sharon Hospital, 2024 WL
967190, *12 (S.D.N.Y. 2024) (claims of lack of training can support a claim of discrimination
where they “involve allegations or evidence that substandard training played a role in an
employee’s termination. Plaintiff’s claim does not fit that mold, however”). There is no
evidence that Bryan, who led the investigation and terminated Kozak, was motivated in any way
by discriminatory animus, or that her decision was tied to the PIP, PCD, or any other reason not
articulated in Kozak’s termination e-mail.
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Kozak also argues that “there are numerous employees that engaged in conduct of
a similar or greater seriousness than Kozak, yet no action was taken against them”. Kozak’s
Memorandum of Law [163-35] at 29. In particular, Kozak points to:
-- 	Newman, who allegedly brought a false claim against Kozak about her being
drunk and used profanity in response to text messages from Kozak ([163-35] at 29);
-- 	McGovern and Bryan, who intentionally avoided the Buffalo Police’s
investigation of Kozak’s report against McGovern in an effort to “shield [Office Depot]” (id. at
30); and
-- 	Bland, who allegedly falsely indicated that he had not received a female
employee’s complaint of harassment against Newman several years later. Id. at 31-32.
“An employee is similarly situated to co-employees if they were (1) subject to
the same performance evaluation and discipline standards and (2) engaged in comparable
conduct. The standard for comparing conduct requires a reasonably close resemblance of the
facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that both
cases are identical.” Johnson v. L’Oreal USA, 2023 WL 2637456, *4 (2d Cir. 2023) (Summary
Order).
Unlike Kozak, none of these individuals were found by Office Depot to have
violated its Code of Ethical Behavior. See Campbell v. National Fuel Gas Distribution Corp., 723
F. App’x 74, 76 (2d Cir. 2018) (Summary Order) (alleged comparator was not similarly situated,
where the comparator “was never found to have engaged in misconduct”). In any event, even if
these individuals violated the Office Depot Code of Ethical Behavior, the misconduct of these
individuals does not bear a “reasonably close resemblance” to the more egregious misconduct
identified by Office Depot in terminating Kozak - i.e., initiating a false complaint against her
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supervisor, attempting to enlist a subordinate in that effort, and harassing employees in the
process. See Franklin v. Liberty Lines Transit, Inc., 685 F. App’x 41, 45 (2d Cir. 2017)
(Summary Order) (“Palmer was terminated because he physically assaulted a passenger. Franklin
cites no example of a white bus driver who was retained despite engaging in similar conduct”).
Finally, Kozak identifies eight Office Depot managers, including herself, that
were allegedly terminated and replaced with younger individuals. See Kozak’s Memorandum of
Law [163-35] at 33; Kozak’s Counter-Statement of Contested Material Facts [159], ¶¶47 and 96.
“It is well-settled that an individual disparate treatment plaintiff may use statistical evidence
regarding an employer’s general practices at the pretext stage to help rebut the employer’s
purported nondiscriminatory explanation.” Hollander v. American Cyanamid Co., 895 F.2d 80,
84 (2d Cir. 1990). However, the Second Circuit has “cautioned against attributing much if any
significance to the fact that another member of the protected class was discharged along with the
plaintiff, especially where the numbers involved are small”. Zimmermann v. Associates First
Capital Corp., 251 F.3d 376, 382 (2d Cir. 2001).
A plaintiff must “provide context to show that the purported negative outcomes
for the comparators in her same protected group are linked to animus.” Clarke-Green v. New
York City Department of Education, 2022 WL 4643385, *22 (E.D.N.Y.), adopted, 2022 WL
4662010 (E.D.N.Y. 2022). The “‘bare collateral circumstance’ that other protected-age
employees were replaced by younger employees cannot alone defeat a summary judgment
motion based on uncontroverted evidence of legitimate, nondiscriminatory reasons for the
employment decisions concerning plaintiff.” Id. See also Kittrell v. Department of Citywide
Administrative Services Division of Personnel, 2013 WL 2395198, *13 (E.D.N.Y. 2013), aff’d,
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561 F. App’x 30 (2d Cir. 2014) (“[c]ourts have repeatedly rejected attempts to prove a
discriminatory pattern and practice in the absence of rigorous statistical analysis”).
Lacking here is sufficient evidence concerning the context for each of the
terminations Kozak relies upon. In fact, on their face, not all of the terminations appear relevant
to Kozak’s age discrimination claim. For instance, two of the terminated Store Managers
identified by Kozak were under the age of 40 ([163-35] at 33), outside of the protect class. See
Benavides v. City of New York, 2024 WL 898943, *6 (S.D.N.Y. 2024) (“[p]eople forty years of
age or older are protected from age discrimination under federal law”).
Nor is there any basis to conclude that these terminations are statistically
significant. Missing are the overall demographics of Office Depot - e.g., the number and ages of
all Store Managers. See Gambello v. Time Warner Communications, Inc., 186 F. Supp. 2d 209,
224 (E.D.N.Y. 2002) (“[e]vidence that five out of thirty terminated employees were age-
protected, without evidence of the total number of age-protected employees before and after the
terminations and the percentage of discharged employees who were age-protected, is insufficient
to establish age-discrimination”).
Likewise, the fact that Kozak was replaced by Bland, a younger male, is not
sufficient alone, or when coupled with the other evidence that she relies upon, to raise a triable
issue as to pretext. See Harnack v. Health Research, Inc., 2013 WL 5951857, *4 (W.D.N.Y.
2013) (“[r]eplacement by a younger person may be enough to satisfy the fourth element of
plaintiff’s prima facie case, but it is not enough to create an issue of fact about whether
Defendant’s proffered reason for Plaintiff’s termination was pretextual”). “It is not a violation
of the [ADEA] to replace an employee in the protected class with a younger person, as long as
the protected employee is not replaced because of h[er] age.” Strohmeyer v. International Board
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of Painters & Allied Trades, 989 F. Supp. 455, 460 (W.D.N.Y. 1997), aff’d, 164 F.3d 619 (2d
Cir. 1998).
Read in a light most favorable to Kozak, the record as a whole demonstrates that
there is insufficient evidence from which a juror could reasonably conclude that Kozak’s age was
a motivating factor for her termination, much less the “but for” cause.
ii. 	Sex Discrimination
“To satisfy the third-stage burden under McDonnell Douglas and survive
summary judgment in a Title VII disparate treatment case, a plaintiff may, but need not, show
that the employer’s stated reason was false, and merely a pretext for discrimination; a plaintiff
may also satisfy this burden by producing other evidence indicating that the employer’s adverse
action was motivated at least in part by the plaintiff’s membership in a protected class.” Bart v.
Golub Corp., 96 F.4th 566, 576 (2d Cir. 2024).
Much of the evidence that Kozak puts forth as demonstrating a discriminatory
animus is directed to her claim of age discrimination. The only individual who Kozak identifies
as possessing an alleged discriminatory animus because of her gender is McGovern. I agree with
Kozak that McGovern’s conduct toward her and evaluation of her performance changed abruptly
after he told Kozak that he liked her but she did not reciprocate. Giving Kozak every favorable
inference, a juror could reasonably conclude that McGovern then took steps (e.g., the DSMs, PIP
and PCD) to lay a foundation for a possible termination, demotion, or other adverse employment
action against Kozak. However, these steps were ultimately unrelated to the reason for Kozak’s
termination.
Although McGovern was a participant in the May 27, 2015 incident that triggered
the chain of events leading to Kozak’s termination, Kozak offers no evidence that he was
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involved in the decision to terminate her. That decision was made by others, with no alleged
gender animus, and based on accusations made by Cannon, who also lacked any alleged
discriminatory animus, that were wholly unrelated to the performance issues identified by
McGovern in the DSMs, PCD, or PIP. See Heinrich, 2013 WL 4008736, *6.
The absence of any evidence linking McGovern or anyone else with an alleged
gender animus to the decision to terminate Kozak is what distinguishes this case from Bart,
supra. See 96 F4th at 578 (“[t]he alleged discriminatory intent harbored by [the supervisor]
Pappas, who the parties agree was involved in the decision to terminate [the employee] Bart,
might have infected the decision to terminate Bart even if Golub’s stated reasons were accurate
and sincerely held by others involved in the decision-making process”). For these reasons, as
well as those discussed above, Kozak has failed to raise a triable issue of material fact that her
gender was a motivating factor in her termination.
iii. 	Disability Discrimination
Office Depot treats the Ninth and Tenth Causes of Action as both asserting a
claim of retaliation in violation of the ADA (Office Depot’s Memorandum of Law [156-3] at
25), but does not respond to Kozak’s argument that she also asserted a claim of disability
discrimination (Kozak’s Memorandum of Law [163-35]) at 38). Notwithstanding the lack of any
response, I agree with Office Depot’s characterization of the Ninth and Tenth Causes of Action.
These Causes of Action are expressly framed as retaliation claims arising from the
fact that Kozak was allegedly treated “adversely because she requested a disability leave”, rather
than being treated adversely because of a disability. Complaint [1], ¶¶144, 153 (Kozak was
treated “adversely in retaliation for her complaints and opposition to unlawful discriminatory
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conduct on the basis of sex and/or age and/or in retaliation for requesting a disability leave”). See
McGrath v. Arroyo, 2024 WL 531251, *3 (E.D.N.Y. 2024) (“the sine qua non of an ADA claim
is that the plaintiff was treated differently ‘because of’ his impairment. Nowhere . . . does
Plaintiff allege that [the defendants] withheld his disability pension because of his disability,
rather he alleges they did so in retaliation” (emphasis in original). In fact, Kozak herself frames
this as a retaliation claim, by arguing that “a reasonable jury could find that [Office Depot]
discriminated against [her] because she claimed to be disabled as a result of [its conduct] and
filed a claim for disability benefits and a leave of absence.” Kozak’s Memorandum of Law [163-
35 at 38.
In any event, even if a disability discrimination claim had been alleged, that claim
would fail because there is no evidence that Office Depot had any role in Sedgwick’s decision to
deny her short-term disability or other leave benefits. See Byra-Grzegorczyk v. Bristol-Myers
Squibb Co., 572 F.Supp.2d 233, 251 (D. Conn. 2008) (the plaintiff’s “short-term disability
benefits was made not by [her employer], but by . . . a third-party administrator. [The plaintiff]
has presented no evidence to suggest that [the employer] was involved in [the third-party
administrator’s] decision-making process”).19
19 	Some courts have also held that the denial of short-term disability benefits does not constitute an
adverse employment action. See Lee v. Sony BMG Music Entertainment, Inc., 2008 WL 4787523, *1
(S.D.N.Y. 2008) (“[t]o the extent that Plaintiff is contending that the denial of her claims for short-and-
long term disability benefits somehow violated the ADA-or is alleging that the denial of disablity benefits
constitutes an adverse employment action-she is again barking up the wrong tree. The denial of disability
benefits is governed by ERISA and does not state a claim under the ADA”); Potter v. Xerox Corp., 88 F.
Supp. 2d 109, 112 (W.D.N.Y. 2000), aff’d, 1 F. App’x 34 (2d Cir. 2001) (“[p]laintiff has presented no
authority that a mere denial of disability benefits can properly be construed as a discrimination claim
under the ADA, and I am not persuaded that such a claim is proper”); Dedyo v. Baker Engineering New
York, Inc., 1998 WL 9376 *12 (S.D.N.Y. 1998) (“a simple denial of entitlement under a disability plan
does not state a claim under the ADA”).
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3. 	Retaliation
Like discrimination claims, “Title VII, ADA, ADEA and NYSHRL retaliation
claims are governed by the McDonnell Douglas burden-shifting analysis.” Concepcion v. City of
New York, 2016 WL 386099, *18 (S.D.N.Y. 2016), aff’d, 693 F. App’x 31 (2d Cir. 2017).
To establish a prima facie case, “the plaintiff must establish a prima facie case of
retaliation by showing (1) participation in a protected activity; (2) that the defendant knew of the
protected activity; (3) an adverse employment action; and (4) a causal connection between the
protected activity and the adverse employment action.” Hicks v. Baines, 593 F.3d 159, 164 (2d
Cir. 2010). If the defendant is able to then articulate a “legitimate, non-retaliatory reason” for
the challenged action, the plaintiff must then present enough evidence so that a jury could find
that the reasons offered were a pretext for retaliation and that retaliation was a ‘but-for’ cause of
the adverse action - i.e., that the adverse action would not have occurred in the absence of the
retaliatory motive.” Tassy v. Buttigieg, 2024 WL 20647, *1 (2d Cir. 2024) (Summary Order).20
For the reasons discussed above, Kozak has failed to offer evidence sufficient to
create an inference that Office Depot’s proffered reason for her termination was a pretext for
retaliation. Although Kozak’s termination came on the heels of her complaint against
McGovern, “mere temporal proximity between a complaint and the alleged retaliatory act is
insufficient to establish pretext at the summary judgment stage”. Hawkins v. New York State
Office of Mental Health, 845 F. App’x 9, 11 (2d Cir. 2021) (Summary Order).
Kozak also appears to argue that she undertook a “protected activity” by
demonstrating to McGovern that his touching was unwelcome and that his conduct in response
constituted an adverse employment action in retaliation for her protected activity. See Kozak’s
20 	Kozak does not dispute Office Depot’s reliance on the “but-for” standard for all of her claims.
See Office Depot’s Memorandum of Law [156-3] at 48.
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Memorandum of Law [163-35] at 40. Although this is not addressed by Office Depot, Kozak
also fails to cite any authority in support of this argument.
“The Second Circuit has never squarely addressed whether rejecting a harasser’s
sexual advance constitutes ‘protected activity’ under the opposition clause for purposes of
making a retaliation claim. Other circuits are split on this issue, as are the district courts within
this Circuit”. Williams v. New York City Department of Education, 2019 WL 4393546, *11
(S.D.N.Y. 2019) (citing cases). I side with those cases that have found that declining a
harasser’s sexual advances does not constitute a “protected activity”. See, e.g., Del Castillo v.
Pathmark Stores, Inc., 941 F. Supp. 437, 438–39 (S.D.N.Y. 1996) (“even the broadest
interpretation of a retaliation claim cannot encompass instances where the alleged ‘protected
activity’ consists simply of declining a harasser’s sexual advances, which is all that is alleged
here by way of ‘protected activity.’ If it were otherwise, every harassment claim would
automatically state a retaliation claim as well”). “[I]n many cases, a harasser will not inform his
employer of the harassing behavior, such that there will not be a basis to impute knowledge of
the discrimination to the employer. Requiring an employee to do more than simply reject a
sexual advance will serve the salutary purpose of informing the employer of alleged
discriminatory conduct in the workplace thus enabling the employer to take such corrective
measures as may be necessary.” Brauer v. MXD Group, Inc., 2019 WL 4192181, *5 (D. Conn.
2019).
4. 	Rule 56(d) application
A motion for summary judgment may be deferred or denied if the “nonmovant
shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to
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justify its opposition”. Rule 56(d) 	To satisfy its burden, the party seeking additional discovery
“must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2)
how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort
the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.”
Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d 414, 422 (2d Cir. 1989).
In short, “[t]he ultimate question for the court is whether the party requesting Rule 56(d)(1)
discovery had a “fair opportunity” to oppose the opponent’s summary judgment motion.” Diaz
Reyes v. W.D. Henry & Sons, Inc., 2019 WL 1723518, *5 (W.D.N.Y. 2019).
Although not expressly invoking Rule 56(d), Kozak’s counsel argues that Office
Depot has “deprived [Kozak] of the very evidence that [she] is entitled to have been provided in
support of her case.” Greco Declaration [163-34], ¶9. Specifically, counsel alleges that Office
Depot “was aware over eight years ago that [Kozak] claimed age discrimination and she was
entitled to information relative to store managers in her District such as regarding any
reduction(s) in force, store manager positions that became open or were created and how they
were filled among other information requested. Despite [Kozak’s] Request for the Production of
Documents requesting such information in multiple requests, no documents relative to Office
Depot’s nationwide reduction-in-force were produced in this case until January 18, 2023,
fourteen days before Ms. Celmer’s scheduled deposition on February 1, 2023, the last witness to
be deposed.” Id., ¶11. See Reynolds’ e-mail dated January 19, 2023 [160-3].
These allegations are troubling. However, Kozak’s counsel offers no reason why
she did not earlier seek - during the previous seven years the case had been pending - to compel
these documents, which she now argues are central to her case, particularly when she knew of the
existence of some reduction in work force plan by Office Depot since the 2016 New York State
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Division of Human Rights investigation. See New York State Division of Human Rights memo
dated March 3, 2016 [161-8] at 4 (Kozak “states Michael Bedford was replaced by a younger
manager however [Office Depot] states his position was [sic] part of a reduction in force and he
was not replaced”).
Under these circumstances, Kozak has not demonstrated that she lacked a full and
fair opportunity to develop her case. See White v. Fein, Such, & Crane, LLP, 2023 WL
1767159, *7 n. 9 (W.D.N.Y. 2023) (Vilardo, J.) (denying Rule 56(d) application where, inter
alia, “the plaintiffs have had more than six years to complete discovery, which was not stayed
during the pendency of the summary judgment motion . . . . [a]nd the deadline to complete
discovery has long passed”); Scott v. Koenigsmann, 2016 WL 1057051, *9 (N.D.N.Y. 2016)
(“[t]here is nothing in the record suggesting that plaintiff . . . was somehow unaware of the
identity of the witnesses she now seeks to depose”); Murphy v. City of Elmira, 2023 WL
5938777, *4 (W.D.N.Y. 2023), recon. denied, 2023 WL 8351889; 2024 WL 242494 (W.D.N.Y.
2024) (additional discovery under Rule 56(d) not warranted “[b]ecause Plaintiff has had the full
discovery window to obtain this information, been granted multiple extensions of time, and even
litigated a previous motion to compel, he has been given an adequate opportunity to discover the
information he now seeks”).
Although Kozak points to Moll v. Telesector Resources Group, Inc., 760 F.3d
198, 202 (2d Cir. 2014)) as demonstrating the importance of reduction in workforce evidence, in
Moll, the legitimate non-discriminatory reason for plaintiff’s termination was tied to a reduction
in workforce plan. See Kozak’s Memorandum of Law [163-35] at 25, 35-36. The same does not
hold true here, and despite the ample discovery Kozak has obtained during the more than seven
years this case has been pending, she fails to offer any evidence suggesting that her termination
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in 2015 was connected in any way to a reduction in work force plan in effect at that time. 21 In
fact, as Office Depot notes (Office Depot’s Memorandum of Law [156-3] at 42), Kozak’s
allegation that Office Depot used store closings as a subterfuge designed to terminate older
managers is difficult to reconcile with her own circumstances: A transfer at age 53 from Store
#3307 that was closing to the same position at Store #6502, when others, including Szpylman,
her Assistant Manager, were terminated. See Szpylman deposition transcript [159-12] at 3.
Kozak also contends that Office Depot has not produced a complete personnel file
for Kiki France-Perry, another female Store Manager in her fifties who was replaced by a
younger Manager. Kozak notes that the only document in France-Perry’s personnel file
concerning her termination, an Employee Change Information sheet, stated that it was for
“Unsatisfactory Performance” ([160-5] at 2), but Celmer testified that France-Perry was
terminated for misconduct and “believe[d]” that those documents should be in the personnel file.
See Celmer deposition transcript [159-14] at 31-33, 35.
The absence of any records in a personnel file concerning an incident that led to
an employee’s termination seems unusual, but Celmer acknowledged that she “didn’t manage
personnel files”, and explained that there would be no PIP or PCD because the incident - France-
Perry’s son getting caught selling drugs on a college campus while distributing Office Depot
flyers at her mother’s request - resulted in France-Perry’s immediate termination. Id. at 124, 294-
95.
21 	Kozak notes that her name appears in a “Region 10 Store Manager 9 Box Place” ([160-3] at 19),
a reduction in workforce document produced shortly before Celmer’s deposition. See Greco Declaration
[163-34], ¶14; Kozak’s Counter-Statement of Contested Material Facts [159], ¶47. However, that
document dates to August 2014 and specifically references Kozak working at Store #3307, which is not
surprising given that her store closed later that year. See [160-3] at 17, 19. Moreover, that store closure,
even if part of a reduction in workforce, did not result in Kozak’s termination.
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In any event, even crediting Kozak’s claim that not all personnel records
concerning France-Perry’s termination were produced, it is difficult to see from Celmer’s
testimony concerning the circumstances that led to France-Perry’s termination that those
documents could benefit Kozak. And, even if France-Perry’s termination was pretextual,
without more, that evidence is insufficient to raise a triable issue of fact as to whether Kozak’s
age was the but-for cause of her termination. See Hoffmann v. Airquip Heating & Air
Conditioning, 480 F. App’x 110, 112 (2d Cir. 2012) (Summary Order) (affirming the denial of a
Rule 56(d) application, where the plaintiff’s “attorney’s Rule 56(d) affidavit lacked any
particularity as to how the facts sought would create an issue of material fact”); Glass v.
Bozzuto’s, Inc., 2023 WL 3434989, *13 (D. Conn. 2023) (the plaintiff “has offered ‘no
persuasive basis’ from which the Court could ‘conclude that further discovery would yield proof’
that [his] age was a but-for cause of Defendant’s decision to terminate him”).
Finally, Kozak alleges that “although requested, no requisition form, job posting,
applications or any other documents were produced by [Office Depot] relative to hiring for [her]
position after her termination”. Greco Declaration [163-34], ¶13. In support of the existence of
such documents, she points to an application submitted by Kenneth Thompson for a Store
Manager position with Office Depot ([161-10] at 2-3), which she allegedly discovered though
“happenstance”. Kozak’s Counter-Statement of Contested Material Facts [159], ¶47. While
Kozak speculates that this undated application demonstrates that her position was posted prior to
her termination (id.), nothing on the face of the application substantiates that belief. The
Thompson application has a desired start date of July 20, 2015 - well after Kozak’s termination -
and while it shows a posting for an open Store Manager position at store #6502, the application
appears to be for store #6574. See [161-10] at 2-3. In any event, in the absence of any specific
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explanation as to why Kozak could not have earlier sought to obtain these documents (e.g., when
she came into possession of the Thompson application and what efforts she made before and
after that to obtain this class of records), she has failed to meet her burden under Rule 56(d).
CONCLUSION
For these reasons, I recommend that Office Depot’s motion to strike [170] be
denied and that its motion for summary judgment [156] be granted, except to the extent that it
seeks to dismiss Kozak’s hostile work environment claim.
Unless otherwise ordered by Judge Vilardo, any objections to this Report and
Recommendation must be filed with the clerk of this court by May 29, 2024. Any requests for
extension of this deadline must be made to Judge Vilardo. A party who “fails to object
timely . . . waives any right to further judicial review of [this] decision”. Wesolek v. Canadair
Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
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with these provisions may result in the district judge’s refusal to consider the objections.
Dated: May 15, 2024
/s/Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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