KAMROWSKI v. MORRISON MANAGEMENT SPECIALIST

Plaintiff alleges that Mr. Chandler, her supervisor, withheld information from her regarding career-development programs because of her gender. (Tr. 115-18.) "A plaintiff alleging unequal access to training under Title VII must demonstrate that the employer offered training to other employees and that the plaintiff was denied that training under circumstances giving rise to an inference of discrimination." Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 379 (S.D.N.Y. 2007); see also Ani v. IMI Sys., Inc., No. 98-CV-8430, 2002 WL 1888873, at *6-7 (S.D.N.Y. Aug. 15, 2002) (holding that a plaintiff cannot establish a prima facie case of failure to train absent evidence which creates an inference of discriminatory treatment).

Plaintiff fails to adduce any evidence to support her failure-to-train claim. In particular, Plaintiff has not produced evidence to support her allegation that another employee received career-advancing training because her bare allegations fail to identify any individuals of the opposite sex who received career-advancing training. The only employee whom Plaintiff alleges that Defendant offered such training was Ms. Hanslmaier — a woman. (Tr. 118.) On this record, there is no basis from which a jury could reasonably conclude that Plaintiff was denied training under circumstances giving rise to an inference of discrimination. See Chan v. NYU Downtown Hosp., No. 03-CV-3003, 2006 WL 345853, at *5-6 (S.D.N.Y. Feb. 14, 2006) (finding that plaintiff failed to establish a prima facie case of race discrimination when, inter alia, she did not "identify any similarly situated individuals outside her protected class who were treated preferentially" (emphasis added)); see also Ani, 2002 WL 1888873, at *4 (noting that a plaintiff may show an inference of discrimination using evidence "showing that similarly-situated employees, not within the plaintiff's protected class, were not subject to the complained-of adverse employment action"). Accordingly, Defendant's Motion for Summary Judgment on Plaintiff's failure to train claim is granted.

b. Failure to Promote

Plaintiff also claims that Defendant unlawfully failed to promote her. To establish a prima facie case on her Title VII failure to promote claim, Plaintiff must submit evidence to "demonstrate that . . . she applied and was qualified for a job for which the employer was seeking applicants; . . . she was rejected for the position; and . . . the position remained open and the employer continued to seek applicants having the plaintiff's qualifications." Petrosino v. Bell Atl., 385 F.3d 210, 226 (2d Cir. 2004) (internal quotation marks omitted); see also Siddiqi v. N.Y.C. Health Hosps. Corp., 572 F. Supp. 2d 353, 368 (S.D.N.Y. 2008) (same). It is well settled in the Second Circuit that a "prima facie case cannot be established merely with evidence that a plaintiff generally requested promotion consideration." Petrosino, 385 F.3d at 227. "A specific application is required to ensure[] that, at the very least, the plaintiff employee alleges a particular adverse employment action, an instance of alleged discrimination, by the employer." Id. (internal quotation marks omitted); see also Wilson v. N.Y.C. Hous. Auth., No. 05-CV-6538, 2007 WL 1032262, at *6 (S.D.N.Y. Apr. 2, 2007) (noting that plaintiff's "failure to proffer evidence identifying any specific positions for which he applied . . . means that he has not made out a prima facie case of discrimination").

Here, the only promotion that Plaintiff sought while employed by Defendant was for a position that was not vacant. (Tr. 133-34.) When, in March 2003, Plaintiff requested that she be promoted to the position of Assistant Director of Food and Nutrition, that position belonged to an individual who only was on a leave of absence. ( Id.) It is undisputed that Defendant never placed a new individual in that position because "[t]he individual holding the position returned from leave and ultimately there was no job vacancy." (Def.'s Mem. 16.) Indeed, as Plaintiff acknowledged in her deposition, she did not receive that promotion "because [the individual] came back" from his leave of absence and not because of her gender. (Tr. 135.) Other than this request in March 2003, it is undisputed that Plaintiff never applied for a specific promotion. ( Id. at 133-35.) Accordingly, Plaintiff cannot establish a prima facie case of a failure to promote actionable under Title VII. See Finkelshteyn v. Staten Island Univ. Hosp., 687 F. Supp. 2d 66, 84 (E.D.N.Y. 2009) (finding that the plaintiff could not show that the denial of his request for reinstatement was retaliation in violation of Title VII when his former position was not vacant and no other similar positions were available); Blake v. Bronx Lebanon Hosp. Ctr., No. 02-CV-3827, 2007 WL 2981465, at *8 (S.D.N.Y. Oct. 10, 2007) (granting summary judgment on failure to promote claim when the position was eliminated, noting that when "no applicants are sought, no failure to promote claim exists"). Defendant's Motion for Summary Judgment on this claim is, therefore, granted.

c. Discriminatory Termination

Finally, Plaintiff claims that her termination violated Title VII. It is well-settled in the Second Circuit that termination of employment constitutes an adverse employment action. See Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (determining that an adverse employment action includes "termination of employment"); see also Steele-Hegg v. Computer Assocs. Int'l, Inc., No. 03-CV-5939, 2007 WL 1989434, at *10 (E.D.N.Y. July 9, 2007) ("[T]he case law within the Second Circuit is well-settled that termination of employment constitutes an adverse employment action. . . ."). Therefore, whether Plaintiff has established a prima facie case of discrimination based on her termination turns on whether she has presented sufficient evidence that the circumstances surrounding her termination give rise to an inference of discrimination.

"[T]here is no unbending or rigid rule about what circumstances allow an inference of discrimination when there is an adverse employment decision. . . ." Vinokur v. Sovereign Bank, 701 F. Supp. 2d 276, 291 (E.D.N.Y. 2010) (internal quotation marks omitted). "A plaintiff may support an inference of [] discrimination by demonstrating that similarly situated employees of a different" gender were not subjected to the same adverse treatment, Debidat v. Marriott International, Inc., 580 F. Supp. 2d 300, 305-06 (S.D.N.Y. 2008), by showing that there were "remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus," Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 91 (2d Cir. 1996), or by showing that there were other "circumstances giving rise to an inference of discrimination on the basis of plaintiff's" gender, Farias v. Instructional Systems, 259 F.3d 91, 98 (2d Cir. 2001). But, Plaintiff "must point to facts that suggest" that the adverse action was motivated, at least in part, by discriminatory animus. Kalsi v. N.Y.C. Transit Auth., 62 F. Supp. 2d 745, 753 (E.D.N.Y. 1998), aff'd, 189 F.3d 461 (2d Cir. 1999); see also Vinokur, 701 F. Supp. 2d at 291 ("A plaintiff cannot sustain an action based on her conclusory allegations of discrimination." (internal quotation marks and brackets omitted)).

Plaintiff has not presented any admissible evidence that raises an inference of discrimination based on her gender. She has presented no evidence that similarly situated employees of a different gender were treated differently. Nor has she shown any other evidence that suggests an inference of gender discrimination. She contends that her supervisor, Mr. Chandler, displayed a general hostility toward women, alleging that he referred to female employees in "derogatory" terms (Am. Compl. Ex. 24, at 5), such as when he called two of her co-workers "fat ass" and "dumb as a door knob" behind their backs, (Pl.'s Stmt. ¶¶ 289, 302). She claims that Chandler further demonstrated his disdain for women, and for her in particular, when he allegedly commented that Plaintiff reminded him of his mother, whom he said he did not like. (Am. Compl. Ex. 24, at 18.)

Plaintiff provides no evidence to support her contention that these alleged comments were made because Plaintiff and her two co-workers were women. The "fat ass" and "dumb as a door knob" comments, though certainly rude, are gender neutral statements that do not indicate gender animus. See Ford v. N.Y.C. Dep't of Health Mental Hygiene, 545 F. Supp. 2d 377, 389 (S.D.N.Y. 2008) (finding no inference of gender discrimination where woman was called "fat fish" and "stupid fish," as those comments, while "disrespectful and rude . . . are not objectively indicative of gender animus"); Wilson v. Family Dollar Stores of N.Y., Inc., No. 06-CV-639, 2008 WL 4426957, at *7-8 (E.D.N.Y. Sept. 25, 2008) (finding no inference of discrimination when the supervisor called the plaintiff "a liar" and "engaged in favoritism and displayed angry facial expressions" because although this "behavior may be rude and unprofessional, it merely indicate[d] personal enmity rather than discrimination"); see also Bickerstaff v. Vassar Coll., 196 F.3d 435, 451 (2d Cir. 1999) ("Title VII does not insulate an individual from criticism that is not based on an impermissible reason."). Moreover, Mr. Chandler's alleged comment regarding his mother, while disrespectful to Plaintiff (not to mention to his mother) and clearly indicative of Mr. Chandler's dislike for her, does not objectively indicate hostility on the basis of gender. See Romano v. Stora Enso Corp., No. 07-CV-4293, 2010 WL 986535, at *10, *17 (E.D.N.Y. Feb. 12, 2010) (granting summary judgment and finding that comments were gender-neutral when the plaintiff alleged, inter alia, that her supervisor told female employees that "she felt like their mother"), adopted by 2010 WL 1005760 (E.D.N.Y. Mar. 17, 2010). This conclusion is strongly supported by the fact that Plaintiff's hiring and firing were recommended by Mr. Chandler within a relatively short time span. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (noting, in the ADEA context, that "when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire"); see also Woodard v. Monticello Cent. Sch. Dist., No. 06-CV-13361, 2008 WL 5062125, at *14 (S.D.N.Y. Dec. 1, 2008) (finding that the conclusion that the plaintiff's termination was not racial discrimination was "strongly supported by the fact that [her] hiring and firing were recommended by the same individual within a relatively short time span").

Plaintiff's only allegation that suggests an inference of discrimination based on gender is her allegation that Mr. Chandler commented to "numerous people" — but not to her personally — that he "wanted a man for the position." (Pl.'s Stmt. ¶ 292.) Yet this allegation is nowhere supported by admissible evidence. Plaintiff has not presented an affidavit of a single individual who can verify that Mr. Chandler made this statement. Because Plaintiff cannot rely solely on this or any other hearsay allegation to survive summary judgment, Defendant's Motion for Summary Judgment on this claim is granted. See Fed.R.Civ.P. 56(e)(1) (requiring that affidavits supporting or opposing a Rule 56 motion "be made on personal knowledge"); Velez v. SES Operating Corp., No. 07-CV-10946, 2009 WL 3817461, at *10 (S.D.N.Y. Nov. 12, 2009) (finding that the plaintiff "fail[ed] to create a triable issue of material fact" because, inter alia, her evidence was hearsay); see also Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 356 (S.D.N.Y. 2006) ("Although the burden of meeting the prima facie case is `de minimis,' [the p]laintiff must adduce some admissible evidence that would support her claims."). 2. Hostile Work Environment Claim

Plaintiff claims that she was subject to a hostile work environment. To establish a prima facie claim based on a hostile work environment under Title VII, Plaintiff must present evidence that she was subjected to harassment based on her gender. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). She must also demonstrate "(1) that the harassment was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment, and (2) that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (internal quotation marks omitted); see also Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) ("Generally, unless an incident of harassment is sufficiently severe, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." (internal quotation marks omitted)). "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." Alfano, 294 F.3d at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Here, Plaintiff's hostile work environment claim centers around her allegations of mistreatment by her co-workers, inappropriate statements by Mr. Chandler, and Mr. Shoemaker's inappropriate conduct toward other employees.

a. Allegations of Harassment by Co-Workers

Plaintiff's complaints of disrespectful or uncivil behavior by her co-workers are not actionable under Title VII. Plaintiff's allegations that her co-workers "spoke rudely about" her (Pl.'s Stmt. ¶ 66), gossiped about her ( id. ¶¶ 157, 161), cursed at her ( id. ¶¶ 287, 321), threw items at her ( id. ¶ 7), and left "hand cream on [her] chair" ( id. ¶ 380), do not state a claim for a hostile working environment under Title VII because there is no basis from which to conclude that this conduct was based on her gender. While her co-workers' alleged conduct may be obnoxious and sophomoric, Title VII is not a "`general civility code' for the American workplace." Petrosino, 385 F.3d at 223 (quoting Oncale, 523 U.S. at 81). Thus, "[s]imple teasing, offhand comments, or isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment," id., particularly where, as here, there is no reason to conclude that the conduct was aimed at Plaintiff because of her gender. Accordingly, these claims are dismissed.

b. Allegations of Harassment by Mr. Chandler

Plaintiff also cannot withstand summary judgment on her claim that Mr. Chandler's alleged comments contributed to a hostile working environment. As discussed above, the comments that Mr. Chandler allegedly made to Plaintiff, while rude, did not convey gender-related hostility. Indeed, at her deposition, Plaintiff was clear that she viewed Mr. Chandler as a "harasser," not a sexual harasser. (Tr. 151.) The former is not governed by Title VII. Moreover, as already discussed, Plaintiff's allegation that Mr. Chandler told several of her co-workers that he "wanted a man for the position" (Pl.'s Stmt. ¶ 292) does not provide a basis to deny summary judgment, as Plaintiff has failed to present admissible evidence to support this allegation. See Hill, 467 F. Supp. 2d at 356 ("Plaintiff must adduce some admissible evidence that would support her claims."); see also Early v. Wyeth Pharm., Inc., 603 F. Supp. 2d 556, 579 (S.D.N.Y. 2009) (noting that the plaintiff could not rely on hearsay statements of other employees to support her hostile work environment claim). Although it is undisputed that Chandler did occasionally use inappropriate language in the workplace (Swedish Aff. ¶ 7; id. Ex. C), Plaintiff has produced no evidence to suggest that this language was used "because of [Plaintiff's] sex," Oncale, 523 U.S. at 80, or that his use of inappropriate language was "sufficiently severe or pervasive to alter the conditions of [Plaintiff's] employment," Rowe v. Jagdamba, Inc., 302 F. App'x 59, 62 (2d Cir. 2008) (internal quotation marks omitted). Defendant's summary judgment motion on this issue, therefore, is granted.

c. Allegations of Harassment by Mr. Shoemaker

Plaintiff's final hostile work environment claim is based upon Mr. Shoemaker's allegedly inappropriate statements and actions toward other women employed at CRMC, which Plaintiff did not actually witness. (Tr. 149.) Though it is not clear whether Defendant disputes the specific conduct alleged by Plaintiff, Plaintiff does not dispute that Defendant ultimately terminated Mr. Shoemaker for making inappropriate gestures and comments in the workplace. (Swedish Aff. ¶ 7.) Defendant argues that Plaintiff has failed to state a prima facie case of hostile working environment because a plaintiff may not "recover damages by pointing to alleged harassment against others." (Def.'s Mem. 18.) Contrary to Defendant's view, the Second Circuit has held that a plaintiff can have standing to sue under Title VII for "injury to her own work environment, which she experienced as hostile by reason of the alleged harassment of other women out of her presence." Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001). To establish such a claim, a plaintiff must demonstrate that, in addition to the standard elements, the "harassment adversely affected the terms and conditions of her own employment." Id. at 189 (emphasis added).

In Leibovitz, the Second Circuit reversed the district court and granted judgment as a matter of law to a defendant in a case in which "much of the alleged harassment did not occur in plaintiff's immediate vicinity and much of what she knew about the situation was second- or third-hand." Id. (internal quotation marks omitted). Although the Second Circuit recognized that a plaintiff could potentially recover in such a case if her own working environment was affected, it determined that the plaintiff could not recover because she "presented no evidence that her own working environment was hostile[] and failed to allege or prove that harassment of other women adversely affected the terms and conditions of her own employment." Id. at 190. Notably, the Second Circuit emphasized that "the women who were allegedly harassed were working in another part of the employer's premises, out of [the plaintiff's] sight . . . were doing another job, and were allegedly subjected to harassment by a supervisor who supervised them but did not supervise [the plaintiff]," and that "the experiences of those women came to [the plaintiff's] notice via hearsay." Id. at 189. District courts within the Second Circuit have been similarly reluctant to accept a prima facie case of a hostile work environment based on harassment experienced by a third party. See, e.g., Byra-Grzegorczyk v. Bristol-Myers Squibb Co., 572 F. Supp. 2d 233, 248 (D. Conn. 2008) (noting that "harassing conduct directed at someone other than a plaintiff . . . does not have the same impact as harassment suffered by a plaintiff herself." (internal quotation marks and brackets omitted)); Pronin v. Raffi Custom Photo Lab, Inc., 383 F. Supp. 2d 628, 635 (S.D.N.Y. 2005) ("[M]erely working in the same area as [the individual who was harassed] and witnessing" a harassing incident does not, without more, affect "the terms and conditions of [a plaintiff's] employment.").

Here, Plaintiff vaguely claims that the hostile work environment created by Mr. Shoemaker's alleged conduct against other women affected her own work environment by "interfering with [her] ability to get [her] work done." (Pl.'s Stmt. ¶ 354.) For example, Plaintiff alleges that a female employee, Ms. Reeves, informed Plaintiff that she had overheard Mr. Shoemaker discussing "cucumber sex" ( id. ¶¶ 338-40; Reeves Aff. ¶ 25), and that another female co-worker, Ms. Banks, reported to Plaintiff that Mr. Shoemaker had told her to "get on the table and be the dessert," (Pl.'s Ex. E, at unnumbered page 72). However, as in Leibovitz, Plaintiff did not personally witness Mr. Shoemaker's allegedly harassing conduct (Tr. 149), instead learning of the conduct second- and third-hand from her co-workers (Pl.'s Stmt. ¶¶ 338-40, 352). Indeed, Plaintiff admitted in her deposition that Mr. Shoemaker's presence did not affect her (Tr. 149), and the only explanation for why his actions interfered with her work was that she was told about his conduct and did not "know what to do," ( id. at 151). Likewise, Plaintiff has not produced evidence showing that the women who were allegedly harassed worked in the same area as Plaintiff and/or that Mr. Shoemaker, who was undisputedly one of Defendant's supervisors, actually supervised Plaintiff. Although it is undisputed that Mr. Shoemaker engaged in some conduct that was sufficiently inappropriate to justify his termination, Plaintiff has failed to produce statements from either Ms. Reeves or Ms. Banks confirming her allegations that they were harassed by Mr. Shoemaker, relying instead on Plaintiff's own conclusory hearsay. Because Plaintiff has not produced any other evidence to support her subjective belief that Mr. Shoemaker's conduct affected her work environment, Plaintiff's claim must fail. See Hill, 467 F. Supp. 2d at 355 (noting that the plaintiff's subjective belief that she was subjected to excess scrutiny on account of her race was insufficient to defeat summary judgment); Boyd v. Presbyterian Hosp. in the City of N.Y., 160 F. Supp. 2d 522, 540 (S.D.N.Y. 2001) (noting that even if "the [p]laintiff may indeed [have] subjectively fe[lt] that the work environment under [her supervisor] was a hostile one, [p]laintiff's subjective belief [wa]s not enough"). Finally, Plaintiff's claim that she suffered injury in the form of management's inaction on her claim of sexual harassment is belied by the fact that Mr. Shoemaker was terminated for his inappropriate conduct. See Pitts v. Onondaga Cnty. Sheriff's Dep't, No. 04-CV-828, 2009 WL 3165551, at *10 (N.D.N.Y. Sept. 29, 2009) (noting that when "a plaintiff's supervisor is the alleged harasser, an employer will be liable if the supervisor uses his actual or apparent authority to further the harassment," but "where a low-level supervisor does not rely on his supervisory authority to carry out the harassment . . . an employer will generally not be liable unless the employer either [1] provided no reasonable avenue of complaint or [2] knew of the harassment but did nothing about it." (internal citations and quotation marks omitted)). Thus, there is insufficient evidence for a reasonable factfinder to conclude that Mr. Shoemaker engaged in conduct toward third-parties that "adversely affected the terms and conditions of [Plaintiff's] own employment." Leibovitz, 252 F.3d at 189. Accordingly, the Court grants summary judgment for Defendant on this claim.

3. Title VII Retaliation Claims

Plaintiff alleges that Defendant further violated Title VII by disciplining and terminating her in retaliation for voicing complaints about racial and gender discrimination in the workplace. To prove a prima facie case of retaliation under Title VII, a plaintiff must demonstrate: (1) that she participated in a protected activity; (2) that her employer was aware of that activity; (3) that materially adverse action occurred; and (4) that there was a causal connection between the protected activity and the adverse employment action. See Kaytor v. Electric Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010); Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006). Even if a plaintiff can state a prima facie case of retaliation, her claim is still subject to the McDonnell Douglas burden shifting framework. See Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).

a. Complaints Regarding Alleged Sexual Harassment

Plaintiff alleges that she was disciplined and ultimately terminated because she reported Mr. Shoemaker's and Mr. Chandler's alleged sexual harassment to management. Defendants do not dispute that Plaintiff's report of alleged sexual harassment was protected activity, that Defendant was aware of this activity, and that Plaintiff being disciplined and terminated were adverse employment actions. However, Defendant contests that Plaintiff can show causation when her protected activity occurred after the discipline had begun.

Proof of causation can be shown either: (1) "directly, through evidence of retaliatory animus directed against the plaintiff by the defendant," or (2) "indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). But, "`where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.'" Blanc v. Sagem Morpho, Inc., No. 07-CV-3085, 2009 WL 1813236, at *15 (E.D.N.Y. June 25, 2009) (quoting Slattery, 248 F.3d at 95).

Here, Plaintiff first complained of Mr. Shoemaker's alleged sexual harassment of other employees in July 2003 (Tr. 145), and did not complain about any alleged sexual harassment by Mr. Chandler until September 23, 2003, (Swedish Aff. ¶¶ 3-4). Defendant has presented uncontested evidence that Mr. Chandler discussed his concerns about Plaintiff's performance "a number of times throughout her employment" (Chandler Aff. ¶ 11), and issued Plaintiff a warning letter regarding her problems managing employees and completing assignments in June 2003, before Plaintiff ever complained of sexual harassment by either Mr. Shoemaker or Mr. Chandler, ( id.; id. Ex. G). Furthermore, the undisputed evidence shows that Mr. Chandler and Ms. Swedish had decided to issue the final warning letter to Plaintiff before she complained of any sexual harassment by Mr. Chandler. ( Id. ¶ 13; id. Ex. H (showing that Mr. Chandler contacted Ms. Swedish on September 4, 2003 requesting edits on the draft final warning letter, and that Ms. Swedish responded on September 8, 2003 with suggested edits and advice on how to discuss the final warning letter with Plaintiff).) As a result, Plaintiff has failed to show causation when the record shows that the disciplinary action began prior to her protected activity. See Vaughn v. City of New York, No. 06-CV-6547, 2010 WL 2076926, at *15 (E.D.N.Y. May 24, 2010) (granting summary judgment when, despite a gap of only a few months between the protected activity and the alleged adverse action, the plaintiff failed to show causation because she was subject to reprimands and discipline before she engaged in any protected activity); Blanc, 2009 WL 1813236, at *15 (granting summary judgment and dismissing retaliation claim when the plaintiff was warned about his "performance deficiencies . . . five months before [he] engaged in any protected activity").

Moreover, even if Plaintiff can establish a prima facie case, Defendant has proffered a legitimate, non-discriminatory reason for the warning letters and termination by providing evidence that Plaintiff was challenging the decisions of her supervisor, not completing her work assignments, and having difficulties communicating and working with co-workers and other supervisors. (Chandler Aff. ¶¶ 7-10; id. Exs. B-F; Lutz Aff. ¶¶ 3-4); see Harrison v. N. Shore Univ. Hosp., No. 04-CV-2033, 2008 WL 656674, at *9 (E.D.N.Y. Mar. 6, 2008) (noting that insubordination and an "inability to get along with supervisors and co-workers" are legitimate, non-discriminatory reasons for termination); Lee v. Healthfirst, Inc., No. 04-CV-8787, 2007 WL 634445, at *24 (S.D.N.Y. Mar. 1, 2007) (finding that the "[p]laintiff's insubordination and failure to fulfill her job responsibilities . . . [we]re legitimate justifications for the withholding of her bonus and her discharge"). As a result, Plaintiff bears the burden of establishing pretext, which she has failed to do. First, Plaintiff admits that she disagreed with her supervisor about what areas and which employees were under her supervision (Tr. 75-80), and that she often challenged decisions made by Mr. Chandler or others, ( id. at 197-99, 283-84; Lutz Aff. ¶ 5). Second, Plaintiff's deposition, and her own affidavit, make clear that Plaintiff was highly critical of her co-workers and other managers. (Tr. 94-96, 99, 203, 206-07; Pl.'s Stmt. ¶¶ 22, 43-46, 52-53, 67.) Moreover, after she received the first warning letter, Plaintiff did not attend the classes that the letter instructed her to attend (Tr. 183), and she continued to fight with other managers and co-workers, (Chandler Aff. ¶ 12). Tellingly, Mr. Chandler posted Plaintiff's job position on the internal website in early September ( id. ¶ 13), and Plaintiff admits that she saw the vacancy posting in September "about the time" when she complained about Mr. Chandler to management, (Tr. 255-57). As a result, summary judgment is warranted because Plaintiff has offered no evidence of pretext to rebut Defendant's legitimate reasons for the discipline and termination, especially considering that the time-line suggests that Plaintiff used the harassment complaints as a weapon after learning that her employment was potentially being terminated. See Ford v. Consol. Edison Co. of N.Y., No. 03-CV-9587, 2006 WL 538116, at *12 (S.D.N.Y. Mar. 3, 2006) (granting summary judgment when the plaintiff's "conclusory allegations of pretext . . . [we]re completely undermined by the largely undisputed evidence that [the p]laintiff [failed to perform his job and was insubordinate]"); see also Lee, 2007 WL 634445, at *24 ("Where an employee has been warned that her job performance is unsatisfactory and she continues the same conduct, she cannot shield herself from legitimate managerial prerogatives by threatening a discrimination complaint and then alleging unlawful retaliation.").

Plaintiff also alleges that she was retaliated against for "living the anti-discrimination laws" and reporting racial discrimination in March 2003, before the first warning letter was issued. (Pl.'s Stmt. ¶¶ 162, 172.) As an initial matter, the Court notes that many of Plaintiff's allegations of "retaliation" involve complaints she made about non-actionable "mismanagement" issues. ( Id. ¶ 226.) In other words, Plaintiff appears to allege that she was retaliated against for reporting the mismanagement of others or for reporting incidents that she believed presented sanitation problems. ( Id. ¶¶ 198-99, 227, 240-45, 322, 324-25.) Similarly, Plaintiff alleges that she opposed the suspension of two African American employees for absenteeism because she believed it was unfair to suspend employees who had been sick or attending a funeral when absent, without alleging or providing evidence that she reported any racial discrimination related to the suspensions. ( Id. ¶¶ 174-75; Tr. 197-98.) Because Title VII does not protect employees from retaliation for opposing misbehavior of co-workers or supervisors that is unrelated to discrimination on account of one of the protected classes, these claims lack merit. See Santucci v. Veneman, No. 01-CV-6644, 2002 WL 31255115, at *4 (S.D.N.Y. Oct. 8, 2002) (granting motion to dismiss because the "[p]laintiff's retaliation claims d[id] not involve some sort of complaint about a type of discrimination that Title VII forbids;" instead the plaintiff "objected to the assignment/rotation system because of its relationship to an allegedly corrupt system of payoffs — not because defendant discriminated on the basis of race, color, religion, sex or national origin" (internal citation and quotation marks omitted)); Manatu v. Bowery Residents Comm., No. 99-CV-722, 2000 WL 1159330, at *2 (E.D.N.Y. Aug. 11, 2000) (finding that the plaintiff failed to show that she engaged in protected activity when she "allege[d] that she was retaliated against [for] [] report[ing] mismanagement . . . to state auditors" because "Title VII does not protect whistleblowers who complain about mismanagement"); Harper v. Hunter Coll., No. 95-CV-10388, 1999 WL 147698, at *1, *3 (S.D.N.Y. Mar. 15, 1999) (dismissing retaliation claim based on the plaintiff's reporting "unsafe conditions" because "`whistleblowing' activity of this nature is not protected under Title VII"). Additionally, Plaintiff proffers several incidents that she claims involved racial discrimination, such as Ms. Hanslmaier allegedly changing the work schedules of African American employees or once throwing coffee at an African American employee (Pl.'s Stmt. ¶¶ 177, 191-96), and an African American employee not receiving a promotion, ( id. ¶ 178). Plaintiff has failed to establish that she engaged in any protected activity related to these incidents as she does not allege, let alone provide evidence suggesting, that she reported these incidents to management or stated that they involved racial discrimination. That, in hindsight, she might have believed these incidents to have involved discrimination does not create a factual dispute about whether her conduct was protected by the law.

Plaintiff also alleges that, sometime in 2003, she told Mr. Chandler that, based on what she had been told by others, Ms. Hanslmaier did not "like black people" and reported an incident involving Ms. McDonald, when Ms. Hanslmaier allegedly did not check on Ms. McDonald after water was splashed in her face and told her she could be fired for leaving the kitchen. (Tr. 410-11; Pl.'s Stmt. ¶¶ 166, 181-85.) Plaintiff further alleges that in March 2003, she told Mr. Chandler about hearing from another supervisor that an employee had reported hearing a kitchen worker use a racial slur against another kitchen worker. (Tr. 383-86.)

Even construing all the facts in Plaintiff's favor, Plaintiff has failed to show that she engaged in protected activity within the meaning of Title VII. "[I]n order to establish that [she] engaged in protected activity, `a plaintiff need not prove that the conditions against which [she] protested actually amounted to a violation of Title VII.'" Dottolo v. Byrne Dairy, Inc., 08-CV-390, 2010 WL 2560551, at *6 (N.D.N.Y. June 22, 2010) (quoting Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999)). "Rather, [a plaintiff] must demonstrate only that [s]he had a good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Wimmer, 176 F.3d at 134 (internal quotation marks omitted); see also Martin v. State Univ. of N.Y., 06-CV-2049, 2010 WL 1257782, at *17 (E.D.N.Y. Mar. 26, 2010) ("Whether [the plaintiff's] belief [that the defendant's actions were unlawful] was `objectively reasonable,' and not merely subjective, is determined based on the facts and the record presented."); Blanc, 2009 WL 1813236, at *14 ("[A] plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as [she] . . . can establish that [she] possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated the law." (internal quotation marks and brackets omitted)). "Whether a plaintiff's belief is reasonable must be `assessed in light of the totality of the circumstances.'" Id. at *14 (quoting Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)). However, "an employee's complaint to an employer about unfair treatment in general is insufficient to constitute protected activity." Id., 2009 WL 1813236, at *13. Thus, even if an employee believes that another employee is a victim of discrimination, "an undisclosed belief of such treatment will not convert an ordinary employment complaint into a protected activity." Aspilaire v. Wyeth Pharm., Inc., 612 F. Supp. 2d 289, 309 (S.D.N.Y. 2009).

Plaintiff's vague report to Mr. Chandler about Ms. Hanslmaier not liking black people and the incident involving Ms. McDonald does not show a reasonable belief that Ms. Hanslmaier engaged in discriminatory conduct. First, although Plaintiff alleges that she reported the Ms. McDonald incident, she presented no evidence explaining what she reported to Mr. Chandler or even that this report occurred prior to the warning letters. See Sales v. YM YWHA of Wash. Heights Inwood, Nos. 00-CV-8641, 01-CV-1796, 2003 WL 164276, at *8 (S.D.N.Y. Jan. 22, 2003) (finding that the plaintiff's ambiguous complaint to his supervisor about a "racially derogatory" term was not protected activity when the plaintiff did not explain the ambiguous term). Second, although Plaintiff appears to subjectively believe that Ms. Hanslmaier's actions constituted racial discrimination, she has presented no evidence suggesting that this belief was reasonable. For example, Plaintiff makes conclusory claims of racism, but admits that Ms. Hanslmaier did not make any racial comments during the incident with Ms. McDonald. (Tr. 411.) Furthermore, Plaintiff has not alleged that Ms. Hanslmaier treated any employees outside the protected class differently than she treated Ms. McDonald. See Moore v. Transitional Servs. of N.Y., 96-CV-1193, 1998 WL 71824, at *5 (E.D.N.Y. Feb. 2, 1998) (granting summary judgment on retaliation claim when the plaintiff had not presented sufficient evidence that she engaged in protected activity because she did not show that the conflict between herself and her co-worker was motivated by gender). Indeed, Plaintiff admits that her subjective belief regarding Ms. Hanslmaier's motivations is based on what others told her. (Tr. 410.) Such vague and conclusory allegations of racial discrimination do not support a finding that Plaintiff's belief that Title VII was violated was reasonable. See Panzarino v. Deloitte Touche LLP, No. 05-CV-8502, 2009 WL 3539685, at *11 (S.D.N.Y. Oct. 29, 2009) (finding that the plaintiff's reporting, among a host of issues, that a supervisor told another employee to work on an assignment because the prospective client was African American, was not protected activity when the plaintiff did not report that "she thought the practice was discriminatory"); see also Blanc, 2009 WL 1813236, at *13 (noting that "[c]areless and uncounseled accusations of discrimination . . . are not necessarily protected" by Title VII (internal quotation marks omitted)); Soliman v. Deutsche Bank AG, 03-CV-104, 2004 WL 1124689, at *13 (S.D.N.Y. May 20, 2004) ("[W]here a plaintiff's complaint is vague or ambiguous and does not sufficiently articulate the nature of harassment, courts hold that a plaintiff has not engaged in a protected activity.").

Plaintiff's allegation that, in March 2003, she reported the incident involving the kitchen worker's use of a racial slur is somewhat less vague; however, Plaintiff has not shown that her belief that Title VII was violated was objectively reasonable when she reported an isolated comment involving people who were not employees of Defendant, that was reported to her by another supervisor, who had told Plaintiff what she had heard from another employee. See Abeln v. Ultra Life Batteries, No. 07-CV-6113, 2009 WL 857497, at *3 (W.D.N.Y. Mar. 30, 2009) (finding that the "plaintiff [did] not have [] a reasonable belief that his complaint concerning [an] isolated, `offensive utterance' constituted sexual harassment," when the comment "was not specifically directed toward [him]" and he did not allege that any other comments occurred); see also Dottolo, 2010 WL 2560551, at *7 (finding that allegation of reporting one sexual comment did not show that the plaintiff's belief that Title VII was violated was objectively reasonable); Middleton v. Metro. Coll. of N.Y., 545 F. Supp. 2d 369, 375 (S.D.N.Y. 2008) (finding that the plaintiff's reporting of the isolated use of a sexual profanity was not protected activity when the comment was uttered by a co-worker, during a fight, in front of the plaintiff's supervisor, and when the conduct was not repeated); Holmes v. Long Island R.R., No. 96-CV-6196, 2001 WL 797951, at *6 (E.D.N.Y. June 4, 2001) (granting summary judgment on retaliation claim because "[g]iven the isolated nature of the incidents complained of . . . [the] plaintiff could not have had an objectively reasonable belief that Title VII had been violated"). Put another way, Plaintiff has not shown that her third-hand reporting of this one-time comment by another employer's employees put Defendant on notice of potential discrimination, especially when another supervisor (who reported the comment to Plaintiff) had already expressed disapproval regarding the incident. See Galdieri-Ambrosini, 136 F.3d at 292 ("[I]mplicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that plaintiff's opposition was directed at conduct prohibited by Title VII.").

Furthermore, even assuming that Plaintiff has sufficiently shown that she engaged in protected activity, Plaintiff cannot show causation based solely on temporal proximity when almost four months passed between her reporting of allegedly discriminatory incidents in March 2003 and Mr. Chandler's first warning letter on June 27, 2003. See Barney v. Consol. Edison Co. of N.Y., No. 99-CV-823, 2009 WL 6551494, at *12 (E.D.N.Y. Oct. 1, 2009) ("[D]istrict courts within the Second Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation." (internal quotation marks omitted)); see also Ruhling v. Tribune Co., No. 04-CV-2430, 2007 WL 28283, at *23 (E.D.N.Y. Jan. 3, 2007) (noting that "a passage of two months between the protected activity and the adverse employment action seems to be the dividing line"); Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999) ("Claims of retaliation are routinely dismissed when as few as three months elapse between the protected EEO activity and the alleged act of retaliation."). In any event, even assuming that Plaintiff has satisfied her prima facie case, Defendant has, as already discussed, proffered a legitimate reason for the warning letters and termination. Plaintiff's extremely weak evidence of causation is insufficient to show pretext, especially when she admits that Mr. Chandler did not discipline her after she reported the incidents to him in March 2003. (Tr. 391); see Ford, 2006 WL 538116, at *11 (noting that "[a]t the pretext stage, the factual inquiry proceeds to a new level of specificity" (internal quotation marks omitted)); Mathurin v. Skrivaneck, No. 00-CV-1762, 2003 WL 23744279, at *13 (S.D.N.Y. June 10, 2003) ("Upon the proffer of [] a neutral reason, the burden returns to the plaintiff to prove that retaliation was a motivating factor in the employer's decision."). Considering the third-hand reporting of Plaintiff's complaint to Mr. Chandler and the undisputed evidence that Plaintiff was insubordinate and struggled as a manager, no reasonable juror could find that Defendant disciplined and terminated Plaintiff in retaliation for her complaints in March 2003. See Bynog v. SL Green Realty Corp., No. 05-CV-305, 2007 WL 831740, at *9 (S.D.N.Y. Mar. 20, 2007) (granting summary judgment on retaliation claim when the defendants "advanced a legitimate non-discriminatory reason for [the plaintiff's] termination, and [the plaintiff] [could not] refute it as pretextual"); Mathurin, 2003 WL 23744279, at *13 (dismissing retaliation claim when the "defendant invok[ed] the perceived inadequacy of plaintiff's performance as a neutral reason for her supervisors' actions, and [she] fail[ed] to offer any evidence that this explanation [wa]s untrue").

D. State Law Whistleblower Claims

Construed liberally, Plaintiff's Amended Complaint also arguably raises state law claims under New York Labor Law Section 741, which prohibits employers that "provide[] health care services" from retaliating against employees who "perform[] health care services" if those employees have "disclose[d] or threaten[] to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care." N.Y. Lab. Law § 741; see also N.Y. Lab. Law § 740(4) (authorizing civil action for retaliatory personnel action). However, having dismissed all of Plaintiff's federal claims, the Court must determine whether to exercise supplemental jurisdiction over these state law claims.

"The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction. . . ." 28 U.S.C. § 1367(c)(3). "Once a district court's discretion is triggered under § 1367(c)(3), it balances the traditional values of judicial economy, convenience, fairness, and comity, in deciding whether to exercise jurisdiction." Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (internal citations and quotation marks omitted). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988).

The Court finds that nothing distinguishes the instant case from "the usual case." Plaintiff's federal claims are all dismissed prior to trial, and there is no reason to believe that judicial economy, convenience, or fairness would be served by this Court exercising supplemental jurisdiction over Plaintiff's state law claims, and to do so would be inconsistent with the principle of comity. Thus, Plaintiff's putative state law whistleblower claims are dismissed without prejudice to refiling in state court.

For the reasons discussed above, Defendant's Motion for Summary Judgment is granted. The Clerk of Court is respectfully directed to terminate the pending motion (Dkt. No. 35), grant judgment for Defendant, and to close this case.

SO ORDERED.

Dated: September 29, 2010

White Plains, New York