In DiLeo v. McDonough, Case No. 19-CV-2405 (FB) (MMH), 2024 WL 3758808 (E.D.N.Y. August 12, 2024), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s claim of gender discrimination asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
The familiar, three-part McDonnell Douglas burden-shifting framework governs Plaintiff’s Title VII gender-discrimination claim. See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Under this framework: (1) Plaintiff must establish a prima facie case of discrimination; (2) Defendant must produce an explanation to rebut the prima facie case by showing that the adverse employment actions were taken “for a legitimate, nondiscriminatory reason”; and (3) Plaintiff must show pretext by demonstrating that intentional discrimination, not the employer’s proffered explanation, was the true reason for the adverse employment action. Id. at 128-29.Plaintiff must state a prima facie case of gender discrimination by showing that: (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination. See Ruiz v. Cty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010).
The fourth element of this test may be satisfied “through direct evidence of intent to discriminate, or by indirectly showing circumstances giving rise to an inference of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).
The Court finds that Plaintiff fails to establish discriminatory animus based on her gender, or alternatively, that she fails to carry her burden at step three of McDonnell Douglas. See Collins v. New York City Transit Auth., 305 F.3d 113, 119 n.1 (2d Cir. 2002) (noting that the fourth criteria for a prima facie case and the third step of McDonnell Douglas “tend to collapse as a practical matter under the McDonnell Douglas framework”). Plaintiff’s sole evidence of gender discrimination is her allegation that Byrd treated her proffered male comparator, Manhattan Blood Bank supervisor Nathan Venka, better than she treated Plaintiff.1 Byrd supervised both Venka and Plaintiff.
“A showing of disparate treatment — that is, a showing that an employer treated plaintiff ‘less favorably than a similarly situated employee outside [her] protected group’ — is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case.” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Employees are “similarly situated to co-employees if they were (1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct,” meaning that the comparator must be “similarly situated to the plaintiff in all material respects.” Ruiz, 609 F.3d at 494 (internal citations and quotations omitted) (emphasis added). Plaintiff fails to establish comparator evidence for two reasons.First, Plaintiff and Venka were not similarly situated in “all material respects.” The record reveals that to the extent Byrd “scrutinized” Plaintiff’s scheduling and job responsibilities, it was because of Plaintiff’s individual issues with the Blood Bank reorganization and scheduling. Plaintiff admitted that she struggled with the reorganization plan and scheduling and got into “arguments” with Byrd about the reorganization plan’s staffing, while she proffers no evidence that Venka did. In fact, Byrd threatened to audit Plaintiff only because timecards showed that Plaintiff was scheduled to be on duty. Pl. Aff. ¶ 21, Ex. CC. Thus, Plaintiff’s comparator argument fails because she does not show that Venka also struggled with the reorganization and scheduling, which caused Plaintiff’s friction with Byrd. See, e.g., Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (plaintiff did not prove she was similarly situated to coworkers where “plaintiff presented no evidence that the alleged conduct of the comparators was similar to her conduct”); McKinney v. Dep’t of Transportation, 168 F. Supp. 3d 416, 425 (D. Conn. 2016) (plaintiff’s deposition “based solely on her subjective belief that these other employees were similarly situated to her and received less severe discipline … is insufficient to create a genuine issue of material fact.”).
Second, even assuming Plaintiff and Venka were similarly situated, Plaintiff’s admission that Venka “was temporarily reassigned by Byrd and investigated regarding his performance as the supervisor of the Manhattan Blood Bank” in 2020 undermines her claim that Venka received more favorable treatment from Byrd.2 Venka’s actual reassignment and investigation were worse than the potential discipline that Plaintiff faced and resulted in her ultimate resignation. Def. 56.1 Stmt., ¶ 59; Pl. Aff. ¶ 21, Ex. CC. Where comparators outside a protected group face similar, let alone worse, treatment from a common supervisor, the comparator argument fails. See Shumway, 118 F.3d at 64 (discrimination claim fails because “[e]ach case was handled exactly as Shumway’s was, and in each case, the supervisor either resigned or was terminated”); Williams v. Alterra Assisted Living Home Health Corp./Brookdale, No. 07-CV-0492, 2010 WL 5072587, at *6 (W.D.N.Y. Dec. 10, 2010) (no material issue of fact where plaintiff failed to “show that these similarly situated employees were treated more favorably”).
The court concluded by noting that while it “does not doubt that Plaintiff perceived her work environment as emotionally taxing” plaintiff offers “no evidence that VA management treated her worse than similarly situated employees because of her gender” and therefore since it “cannot rely on Plaintiff’s conclusory allegations about gender discrimination” defendant was entitled to summary judgment as to this claim.