Exhibit B 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 1 of 19
Page 1 

LEXSEE 

Positive 

As of: Mar 05, 2008 

BARBARA PHILLIPS, Plaintiff, -against- MT. SINAI MEDICAL 

CENTER, Defendant. 

01 Civ. 5656 (GBD)(FM) 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN 

DISTRICT OF NEW YORK 

2005 U.S. Dist. LEXIS 32312 

November 14, 2005, Decided 

SUBSEQUENT HISTORY: Adopted by, 

Summary judgment granted by, Complaint 

dismissed at Phillips v. Mt. Sinai Med. Ctr., 

2006 U.S. Dist. LEXIS 2606 (S.D.N.Y., Jan. 

24, 2006)

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff former 

employee sued defendant former employer 

alleging violations of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C.S. § 2000e et 

seq., the Age Discrimination in Employment 

Act (ADEA), 29 U.S.C.S. § 621 et seq., the 

New York State Human Rights Law 

(NYSHRL), N.Y. Exec. Law § 290 et seq., and 

the New York City Human Rights Law 

(NYCHRL), New York City, N.Y., Admin. 

Code § 8-101 et seq. The employer moved for 

summary judgment. 

OVERVIEW: Although the employee 

established the first three elements of her prima 

facie case of age discrimination, there was a 

question as to whether she had shown that an 

adverse employment action occurred under 

circumstances giving rise to an inference of age 

discrimination. The employee's contentions to 

support the inference of age discrimination 

included, inter alia, allegations that a younger 

employee was the one who should have been 

disciplined for one incident and that the 

younger employee paid a dead employee and 

overpaid an employee without receiving 

disciplinary notices. The court concluded, 

however, that the employee could not prove 

that the employer's legitimate, nondiscriminatory reason for terminating the 

employee, her repeated errors, was a pretext. 

As for the employee's national origin claims 

under the NYSHRL and NYCHRL, the court 

concluded that the remarks made about the 

employee's accent were insufficient to support 

such claims. Finally, the court held that the 

employee's retaliation claim relating to her 

filing of a charge of discrimination with the 

Equal Employment Opportunity Commission 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 2 of 19
2005 U.S. Dist. LEXIS 32312, * 

Page 2 

survived as the temporal nexus of three months 

was sufficient to support the claim. 

OUTCOME: The magistrate recommended 

that the employer's motion for summary 

judgment be denied as to the employee's 

retaliation claim under the ADEA relating to 

her filing of a charge of discrimination with the 

Equal Employment Opportunity Commission, 

and be granted as to all other claims. 

CORE TERMS: payroll, summary judgment, 

retaliation, termination, notice, index card, nonproductive, age discrimination, national origin, 

prima facie case, accent, mail, clerk, card, 

protected activity, deposition, younger, nexus, 

time cards, warning notice, discriminated, 

disciplinary, conclusory, proffered, causal, sick, 

nondiscriminatory reason, disciplined, 

terminated, suspension 

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > 

Standards > General Overview

[HN1]Under Fed. R. Civ. P. 56(c), summary 

judgment is appropriate only when the 

pleadings, depositions, answers to 

interrogatories, and admissions on file, together 

with the affidavits, if any, 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. 

Civil Procedure > Summary Judgment > 

Standards > General Overview

[HN2]In deciding a motion for summary 

judgment, a court must view the evidence in the 

light most favorable to the party against whom 

summary judgment is sought and draw all 

permissible inferences in favor of that party. 

The court also must accept as true the nonmoving party's evidence, if supported by 

affidavits or other evidentiary material. 

Assessments of credibility, choosing between 

conflicting versions of the events, and the 

weighing of evidence are matters for the jury, 

not for the court. Thus, the court's function is 

not to resolve disputed issues of fact but only to 

determine whether there is a genuine issue of 

material fact to be tried. 

Civil Procedure > Summary Judgment > 

Burdens of Production & Proof > General 

Overview

[HN3]To defeat a motion for summary 

judgment, the non-moving party cannot merely 

rely upon allegations contained in the pleadings 

that raise no more than some metaphysical 

doubt as to the material facts. Rather, the nonmoving party must offer concrete evidence 

from which a reasonable juror could return a 

verdict in his favor. 

Civil Procedure > Summary Judgment > 

Standards > General Overview

[HN4]The Second Circuit has cautioned that 

summary judgment is often inappropriate in 

cases where the trier of fact will have to delve 

into an employer's intent, because intent is an 

issue as to which direct evidence is rarely 

available. However, when an employer has 

explained its conduct and the plaintiff has 

offered only conclusory assertions in 

opposition, summary judgment may be granted. 

Labor & Employment Law > Discrimination > 

Age Discrimination

[HN5]Under the Age Discrimination in 

Employment Act, 29 U.S.C.S. § 621 et seq., it 

is unlawful for an employer to discharge any 

individual or otherwise discriminate against 

any individual with respect to his or her 

compensation, terms, conditions, or privileges 

of employment, because of such individual's 

age. 29 U.S.C.S. § 623(a)(1). 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 3 of 19
2005 U.S. Dist. LEXIS 32312, * 

Page 3 

Labor & Employment Law > Discrimination > 

Age Discrimination

[HN6]The New York State Human Rights Law, 

N.Y. Exec. Law § 290, et seq., and the New 

York City Human Rights Law, New York City, 

N.Y., Admin. Code § 8-101 et seq. make it 

unlawful for an employer to discriminate 

against an employee in the terms, conditions, or 

privileges of employment on the basis of age. 

N.Y. Exec. Law § 296(1)(a); New York City, 

N.Y., Admin. Code § 8-107(1)(a). 

Labor & Employment Law > Discrimination > 

Age Discrimination

[HN7]The framework for analyzing age 

discrimination claims under the New York 

State Human Rights Law, N.Y. Exec. Law § 

290 et seq., and the New York City Human 

Rights Law, New York City, N.Y., Admin. 

Code § 8-101 et seq. is essentially the same as 

under the Age Discrimination in Employment 

Act, 29 U.S.C.S. § 621 et seq.

Labor & Employment Law > Discrimination > 

Age Discrimination > Proof > Burdens of 

Proof

[HN8]In assessing a claim under the Age 

Discrimination in Employment Act, 29 

U.S.C.S. § 621 et seq., a court must apply the 

burden-shifting analysis set forth in McDonnell 

Douglas Corp. and its progeny. Under that 

rubric, a plaintiff must satisfy an initial burden 

of proving by a preponderance of the evidence 

a prima facie case of discrimination. To 

establish a prima facie case, an employee must 

show that: (1) she was within the protected age 

group; (2) she was qualified for the job; (3) she 

was subjected to an adverse employment 

decision or discharge; and (4) the adverse 

action occurred under circumstances giving rise 

to an inference of age discrimination. 

Labor & Employment Law > Discrimination > 

Age Discrimination > Proof > Burdens of 

Proof

[HN9]Once a plaintiff makes out a prima facie 

case of age discrimination under the Age 

Discrimination in Employment Act, 29 

U.S.C.S. § 621 et seq., a rebuttable 

presumption of discrimination arises and the 

burden then shifts to the defendant to articulate 

a legitimate nondiscriminatory reason for the 

employment decision. Finally, if the defendant 

provides a nondiscriminatory rationale for its 

conduct, the rebuttable presumption drops out 

of the case. The burden then rests on the 

plaintiff to prove not only that the proffered 

nondiscriminatory reason was pretextual, but 

also that the defendant discriminated against 

the plaintiff. 

Civil Procedure > Summary Judgment > 

Burdens of Production & Proof > General 

Overview

Labor & Employment Law > Discrimination > 

Age Discrimination > Proof > Burdens of 

Proof

[HN10]Conclusory allegations concerning the 

treatment of similarly situated employees do 

not raise a genuine issue of material fact for 

purposes of age discrimination claims. 

Labor & Employment Law > Discrimination > 

National Origin Discrimination

[HN11]The New York State Human Rights 

Law, N.Y. Exec. Law § 290, et seq., and the 

New York City Human Rights Law, New York 

City, N.Y., Admin. Code § 8-101 et seq. make 

it unlawful for an employer to discriminate 

against an employee in the terms, conditions or 

privileges of employment on the basis of 

national origin. N.Y. Exec. Law § 296(1)(a); 

New York City, N.Y., Admin. Code § 8-

107(1)(a). 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 4 of 19
2005 U.S. Dist. LEXIS 32312, * 

Page 4 

Labor & Employment Law > Discrimination > 

National Origin Discrimination > Proof > 

Evidence

[HN12]As a general rule, isolated and 

disconnected derogatory remarks by a decision 

maker are by themselves insufficient to raise an 

inference of discrimination. 

Labor & Employment Law > Discrimination > 

Retaliation > Statutory Application > Age 

Discrimination in Employment Act

[HN13]Under the Age Discrimination in 

Employment Act, 29 U.S.C.S. § 621 et seq., it 

is unlawful for an employer to retaliate against 

an employee who has exercised her statutory 

right to complain about conduct that she 

considers discriminatory. 

Labor & Employment Law > Discrimination > 

Retaliation > Statutory Application > Age 

Discrimination in Employment Act

[HN14]The New York State Human Rights 

Law, N.Y. Exec. Law § 290 et seq., and the 

New York City Human Rights Law, New York 

City, N.Y., Admin. Code § 8-101 et seq. both 

provide that an employer may not retaliate 

against an employee engaged in a protected 

activity. N.Y. Exec. Law § 296(7); New York 

City, N.Y., Admin. Code § 8-107(7). 

Labor & Employment Law > Discrimination > 

Retaliation > Elements > General Overview

[HN15]To make out a prima facie case of 

retaliation, a plaintiff must show that (1) she 

participated in a protected activity; (2) the 

employer knew of this activity; (3) she was 

subjected to an adverse employment action; 

and (4) there is a causal connection between the 

protected activity and the adverse employment 

action. The last of these elements can be 

established: (a) directly through evidence of 

retaliatory animus directed against a plaintiff 

by the defendant; or (b) indirectly by showing 

that the protected activity was followed closely 

by discriminatory treatment or through other 

evidence such as disparate treatment of fellow 

employees who engaged in similar conduct. 

Labor & Employment Law > Discrimination > 

Retaliation > Burdens of Proof

[HN16]Once a prima facie showing has been 

made, an employee's retaliation claim is subject 

to the McDonnell Douglas burden-shifting 

analysis. Consequently, if the employer 

furnishes a legitimate nondiscriminatory reason 

for the contested actions, the burden of 

persuasion rests with the employee, who must 

demonstrate that there is sufficient potential 

proof for a reasonable juror to find the 

proffered legitimate reason merely a pretext for 

impermissible retaliation. 

Labor & Employment Law > Discrimination > 

Retaliation > Elements > Causal Link

[HN17]The Second Circuit has not drawn a 

bright line as to the maximum amount of time 

between a protected activity and an adverse 

employment action that will satisfy the 

causation element of a retaliation claim. 

Nevertheless, a gap of only a month or two 

clearly warrants the inference that a causal 

nexus may exist. On the other hand, durations 

longer than that may not be sufficient to defeat 

a motion for summary judgment in the absence 

of other corroborative evidence. 

Civil Procedure > Summary Judgment > 

Burdens of Production & Proof > General 

Overview

[HN18]A party opposing summary judgment 

may not rely on conclusory allegations or 

unsubstantiated speculation. 

COUNSEL: For Barbara A. Phillips, Plaintiff 

Pro se: Robert J. Barsch, New York, NY. 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 5 of 19
2005 U.S. Dist. LEXIS 32312, * 

Page 5 

For Mount Sinai Medical Center, Defendant: 

Laura E. Evangelista, Ricki E. Roer, Wilson, 

Elser, Moskowitz, Edelman & Dicker LLP, 

New York, NY. 

JUDGES: [*1] FRANK MAAS, United 

States Magistrate Judge, THE HONORABLE 

GEORGE B. DANIELS. 

OPINION BY: FRANK MAAS 

OPINION 

REPORT AND RECOMMENDATION 

TO THE HONORABLE GEORGE B. 

DANIELS

FRANK MAAS, United States Magistrate 

Judge. 

I. Introduction 

Plaintiff Barbara Phillips ("Phillips") brings 

this employment discrimination action against 

her former employer, Mt. Sinai Medical Center 

("Mt. Sinai"), under federal, state, and local 

law. Phillips alleges that she was improperly 

terminated on the basis of her age and national 

origin and was also the victim of unlawful 

retaliation. Following the close of discovery, 

Mt. Sinai has moved for summary judgment 

pursuant to Rule 56 of the Federal Rules of 

Civil Procedure. For the reasons set forth 

below, Mt. Sinai's motion for summary 

judgment should be granted in part and denied 

in part. 

II. Facts 

Unless otherwise noted, the following facts 

either are undisputed or are set forth in the light 

most favorable to Phillips. 

A. Phillips' Employment at Mt. Sinai 

On January 29, 1990, Phillips began her 

employment at Mt. Sinai as a payroll clerk in 

the Payroll Department. (See Def.'s R. 56.1 

Stmt. P1; [*2] Def.'s Ex. B (Dep. of Barbara 

Phillips, taken on Dec. 17, 2004 and Jan. 6, 

2005 ("Phillips Dep.")), at 28-29). 1 At the time 

of her hiring, Phillips was 46 years old. 

(Phillips Dep. 30). In 1995, Mt. Sinai agreed to 

Phillips' request that she be transferred from the 

Payroll Department to the Cardiac Care Unit to 

become a Patient Care Administrator. (Def.'s R. 

56.1 Stmt. P2; Phillips Dep. 31-32). Mt. Sinai 

also paid for her retraining. (Phillips Dep. 8). 

After approximately four months in the Cardiac 

Care Unit, Phillips asked to be transferred back 

to the Payroll Department as a payroll clerk. 

(Id. at 32-33). Once again, Mt. Sinai granted 

her request. (Id.). 

1 All but one of the exhibits proffered 

to the Court in connection with Mt. 

Sinai's summary judgment motion are 

defense exhibits. Accordingly, unless 

otherwise noted, all subsequent citations 

to exhibits by letter refer to the exhibits 

submitted by Mt. Sinai. 

Phillips' responsibilities as a payroll clerk 

included completion of payroll and 

informational [*3] forms, answering 

telephones at a front desk, and processing a 

"manual" payroll. (See Ex. D) (Duties and 

Responsibilities List). As part of her duties in 

connection with the manual payroll, Phillips 

was required to pick up employee time cards 

from the Mt. Sinai mail room and review them 

to identify any "non-productive" time, such as 

sick time. (See Phillips Dep. 45, 49-50). If an 

employee requested payment for nonproductive time, Phillips was required to check 

the employee's index card to determine whether 

the employee had an appropriate time credit in 

the "bank." If the employee did have time 

available, Phillips was required to process a 

salary payment for the employee and note the 

payment on the index card. (Id. at 45-46). If the 

employee did not have time available, Phillips 

was required to note on the index card that a 

request for time had been made and denied due 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 6 of 19
2005 U.S. Dist. LEXIS 32312, * 

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to lack of available non-productive time. (Id.; 

see also id. at 126-127). 

According to Phillips, misplaced index 

cards were a "big problem" in the Payroll 

Department. (Aff. of Barbara Phillips, sworn to 

on March 31, 2005 ("Phillips Aff."), P11). 

Accordingly, whenever an employee's index 

card could [*4] not be located, Phillips would 

"put the time card[] through" since she "could 

not post non-productive time on the card[] if 

the card[] could not be located." (Id.). Phillips 

contends that this was the uniform "practice 

[in] the department." (Id.). Phillips similarly 

contends that time not worked on holidays was 

routinely not posted on the index cards because 

there were "too many cards, so you let it go 

through." (Phillips Dep. 152-53). When holiday 

or other non-productive time was not properly 

posted on index cards, employees received 

payments in excess of their proper wages. (Id.). 

B. Warnings to Phillips 

On Monday, March 27, 2000, Phillips was 

scheduled to process the weekly manual 

payroll. (See Ex. E; Phillips Dep. 96). That 

morning, Phillips called in sick and did not 

arrive at work until 2 p.m. (Phillips Dep. 99-

100). In her absence, another Payroll 

Department employee, Brenda Anthony, picked 

up the mail from the mail room. (Id. at 100). 

According to Phillips, Anthony removed some, 

but not all, of the time cards from the mail bag. 

(Id. at 100-02). When Phillips came into the 

office, she noticed the mail bag sitting near a 

printer and placed [*5] it in the incoming mail 

box without realizing that some of the time 

cards remained in the bag. (Id.). In keeping 

with her understanding that the first task after 

retrieving the mail bag was to segregate all the 

time cards, Phillips did not look inside the mail 

bag because she believed that Anthony had 

removed all of the cards. (Id. at 102-03). As a 

result of this mistaken assumption, 150 

employees did not receive their paychecks on 

time. (See Def.'s R. 56.1 Stmt. P6). Mt. Sinai's 

computer system also had to be taken off its 

regular schedule so that a special payroll could 

be run. (See Ex. F). On April 5, 2000, as a 

result of this incident, Phillips was issued a 

Warning Notice. (Id.). The notice charged that 

Phillips had refused to follow a supervisor's 

instructions or accept a job. (Id.). Phillips was 

cautioned that "further disregard for the 

Medical Center's policies will result in 

additional disciplinary actions up to and 

including termination." (Id.). Phillips filed a 

grievance, but her union failed to pursue it, 

claiming that it was untimely. (Phillips Dep. 

113). 

On October 5, 2000, Phillips received a 

second Warning Notice and a three-day 

suspension [*6] for overpaying an employee 

on medical disability on two occasions. (See

Ex. G). The notice charged that on August 14 

and 28, 2000, Phillips had approved the 

payment of 37.5 sick hours to an employee who 

did not have the requisite sick time available. 

(Id.; Phillips Dep. 119-23). According to the 

notice, in the second instance, Phillips posted 

on the employee's index card that "five days 

were requested and none were paid." (See Ex. 

G). The two payments resulted in the employee 

receiving a total of $ 1,364 to which she was 

not entitled. (Phillips Dep. 127). 

Phillips does not deny that she paid the 

employee in error on the first occasion, but 

asserts that her immediate supervisor, Hassan 

Shroff, told her on the second occasion that the 

employee was entitled to be paid. (Phillips Aff. 

P7; Phillips Dep. 123-27). Phillips further 

contends that the two alleged errors both 

resulted from "poor management by Mr. Lopez 

and Mr. Shroff in maintaining the index cards 

that list the employee's information," which 

were "often misplaced." (Phillips Aff. P7). 

Despite this contention, the Warning Notice 

issued by Mt. Sinai charged that "[Phillips'] 

failure to follow instructions has caused [*7] 

needless overpayments to an employee of the 

Medical Center." (Ex. G). 

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2005 U.S. Dist. LEXIS 32312, * 

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Mt. Sinai terminated Phillips on April 20, 

2001. The Termination Notice issued to her 

cited two further incidents involving Phillips' 

failure to post non-productive time on 

employee time cards. According to the notice, 

on February 26, 2001, Phillips failed to record 

non-productive time on four employee index 

cards, which resulted in overpayments to them. 

(Phillips Dep. 145-46). Thereafter, on March 

19, 2001, Phillips failed to record holiday time 

on another employee's index card. (Id. at 153-

58). The Termination Notice alleged that, 

"despite previous disciplinary actions 

concerning [Phillips'] failure to follow 

instructions and conduct detrimental to [Mt. 

Sinai]'s operations, no improvement has been 

made." (Notice of Motion Ex. H) (Termination 

Notice). 

Phillips concedes that she failed to post 

non-productive time on employee index cards 

and therefore caused overpayments to be made. 

(See Phillips Dep. 119-20, 123-27, 145-48, 

150-52, 156-58). Phillips argues, however, that 

the practice in the Payroll Department was to 

put a time card through if a clerk was unable to 

find the employee's index card. (Phillips [*8] 

Aff. P11). Phillips contends that other payroll 

clerks, including at least one who was under the 

age of forty, also failed to post non-productive 

time on index cards. (Id. PP9, 11). 

C. Administrative Proceedings 

On April 24, 2000, Phillips filed a charge 

against Mt. Sinai with the State Division of 

Human Rights ("SDHR"), in which she alleged 

that she was the victim of age discrimination in 

violation of Section 296 of the New York State 

Human Rights Law ("NYSHRL"). (See Ex. J). 

This charge was filed only a few weeks after 

Phillips received her first Warning Notice. It is 

unclear from the record how her complaint was 

resolved. 

On January 23, 2001, Phillips filed a 

Charge of Discrimination against Mt. Sinai 

with the federal Equal Employment 

Opportunity Commission ("EEOC"). (See Ex. 

K). Phillips alleged that she was discriminated 

against because of her age in violation of the 

Age Discrimination in Employment Act 

("ADEA"). Phillips cited several instances of 

alleged age discrimination by Mt. Sinai. (Id.). 

In her charge, Phillips conceded that she had 

"overpaid a client for [one] week ( $ 300.00)." 

(Id.). With respect to the March 27, 2000 

episode, Phillips [*9] alleged that "it was the 

responsibility of a younger employee . . . 

Brenda Anthony . . . to retrieve time cards and 

place them in the incoming mail boxes. I was 

blamed for the error that was committed by my 

younger counterpart." (Id.). Phillips also cited 

two other incidents in which younger 

employees (Anthony and Shroff) had overpaid 

Mt. Sinai employees without being sanctioned. 

In the first incident, Anthony allegedly paid a 

doctor the sum of $ 18,000 in error. (Id.). In the 

second, Shroff allegedly caused an employee to 

be paid for four weeks of sick leave he had not 

earned. (Id.). 

On March 23, 2001, the EEOC issued a 

Right to Sue letter to Phillips, in which it stated 

that its investigation did not lead to the 

conclusion that Mt. Sinai had violated the 

ADEA. (See Ex. L). 

On February 13, 2002, after she was 

terminated, Phillips filed a second EEOC 

Charge of Discrimination against Mt. Sinai, in 

which she alleged that Mt. Sinai had unlawfully 

retaliated against her for filing her first EEOC 

complaint. (See Phillips Aff. Ex. A). She 

further alleged that "the termination continued 

the age discrimination [she] encountered from 

[her] supervisor . . . [who] [*10] often derided 

[her] national origin, Jamaican, by making fun 

of [her] accent, and [by making] other 

derogatory comments about Jamaicans." (Id.). 

Although the disposition of Phillips second 

EEOC charge is not part of the record, Mt. 

Sinai does not dispute that this claim was 

properly exhausted. 

D. Federal Action 

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2005 U.S. Dist. LEXIS 32312, * 

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Phillips commenced this action by 

delivering her complaint to the Pro Se Office of 

the Court on or about June 21, 2000. (See

Docket No. 1). Thereafter, she retained Robert 

J. Barsch, Esq., as her attorney; he appeared on 

October 16, 2001, and filed an amended 

complaint on March 13, 2002. (See Docket No. 

8). Phillips' amended complaint alleges that she 

was discriminated against on the basis of her 

national origin and age and was the victim of 

unlawful retaliation. The amended complaint 

alleges that Mt. Sinai's discriminatory conduct 

violated Title VII of the Civil Rights Act of 

1964, as amended, 42 U.S.C. §§ 2000e, et seq.; 

the ADEA, 29 U.S.C. § 621, et seq.; the New 

York State Human Rights Law ("NYSHRL"), 

Executive Law § 290, et seq.; and the New 

York City Human Rights Law ("NYCHRL"), 

New York [*11] City Administrative Code § 

8-101, et seq. Subsequently, pursuant to a May 

30, 2002 Stipulation and Order, Phillips 

withdrew her claim of national origin 

discrimination under Title VII. (See Docket No. 

11). 

E. Summary Judgment Motion 

Mt. Sinai filed its motion for summary 

judgment on February 23, 2005. (Docket Nos. 

22, 23). On August 2, 2005, following several 

extensions, Phillips served her opposition 

papers. (Docket Nos. 10, 18, 21, 24, 28). 

Thereafter, on May 6, 2005, Mt. Sinai filed a 

reply memorandum. (Docket No. 25). Once the 

motion was fully submitted, Your Honor 

referred it to me on September 7, 2005, for a 

Report and Recommendation. (Docket No. 29). 

III. Discussion 

A. Summary Judgment Standard 

[HN1]Under Federal Rule of Civil 

Procedure 56(c), summary judgment is 

appropriate only when: 

 

 the pleadings, depositions, 

answers to interrogatories, and 

admissions on file, together with 

the affidavits, if any, 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. 

 

[HN2]In deciding a motion for summary 

judgment, the court must "view the [*12] 

evidence in the light most favorable to the party 

against whom summary judgment is sought and 

. . . draw all permissible inferences in favor of 

that party." Fischl v. Armitage, 128 F.3d 50, 55 

(2d Cir. 1997). The Court also must accept as 

true the non-moving party's evidence, if 

supported by affidavits or other evidentiary 

material. See Kulak v. City of New York, 88 

F.3d 63, 70 (2d Cir. 1996). Assessments of 

credibility, choosing between conflicting 

versions of the events, and the weighing of 

evidence are matters for the jury, not for the 

court. Fischl, 128 F.3d at 55. See also Fed. R. 

Civ. P. 56(e) 1963 advisory committee's note. 

Thus, "the court's function is not to resolve 

disputed issues of fact but only to determine 

whether there is a genuine issue of material fact 

to be tried." Fischl, 128 F.3d at 55. 

[HN3]To defeat a motion for summary 

judgment, the non-moving party cannot merely 

rely upon allegations contained in the pleadings 

that raise no more than "some metaphysical 

doubt as to the material facts." Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

[*13] Rather, the non-moving party must offer 

"concrete evidence from which a reasonable 

juror could return a verdict in his favor." 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 

[HN4]The Second Circuit has cautioned 

that summary judgment is often inappropriate 

in cases where the trier of fact will have to 

delve into an employer's intent, because intent 

is an issue as to which direct evidence is rarely 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 9 of 19
2005 U.S. Dist. LEXIS 32312, * 

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available. See, e.g., Gallo v. Prudential 

Residential Servs. Ltd. P'ship, 22 F.3d 1219, 

1224 (2d Cir. 1994); Patrick v. LeFevre, 745 

F.2d 153, 159 (2d Cir. 1984). However, when 

an employer has explained its conduct and the 

plaintiff has offered only conclusory assertions 

in opposition, summary judgment may be 

granted. See, e.g., Meiri v. Dacon, 759 F.2d 

989, 998 (2d Cir. 1985) ("To allow a party to 

defeat a motion for summary judgment by 

offering purely conclusory allegations of 

discrimination, absent any concrete particulars, 

would necessitate a trial in all [discrimination] 

cases."). 

B. Substantive Claims 

1. Age Discrimination 

a. Applicable Law 

[HN5]Under the ADEA, it is unlawful 

[*14] for "an employer . . . to discharge any 

individual or otherwise discriminate against 

any individual with respect to [her] 

compensation, terms, conditions, or privileges 

of employment, because of such individual's 

age." 29 U.S.C. § 623(a)(1). Similarly, 

[HN6]the NYSHRL and NYCHRL make it 

unlawful for an employer to discriminate 

against an employee in the terms, conditions, or 

privileges of employment on the basis of age. 

See N.Y. Exec. Law § 296(1)(a); N.Y. City 

Admin. Code § 8-107(1)(a). 

[HN7]The framework for analyzing 

NYSHRL and NYCHRL age discrimination 

claims is essentially the same as under the 

ADEA. See Molin v. Permafiber Corp., 2002 

U.S. Dist. LEXIS 23674, No. 01 Civ. 9279 

(SHS), 2002 WL 31760215, at *3 (S.D.N.Y. 

Dec. 9, 2002) ("Claims made pursuant to the 

New York State Human Rights Law and the 

New York City Human Rights Law are subject 

to the same analysis as claims brought pursuant 

to the ADEA."); Schreiber v. Worldco, LLC, 

324 F. Supp. 2d 512, 520 (S.D.N.Y. 2004)

(same); see also Carr v. WestLB Admin., Inc., 

171 F. Supp. 2d 302, 307 n.1 (S.D.N.Y. 2001)

(treating plaintiff's NYSHRL age 

discrimination claim [*15] "in a manner 

identical to" plaintiff's ADEA claim). 

Accordingly, only Phillips' ADEA claim need 

be discussed in detail. 

[HN8]In assessing an ADEA claim, a court 

must apply the burden-shifting analysis set 

forth in McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802-03, 93 S. Ct. 1817, 36 L. Ed. 

2d 668 (1973), and its progeny. Under that 

rubric, the plaintiff must satisfy an initial 

burden of "proving by a preponderance of the 

evidence a prima facie case of discrimination." 

Texas Dep't of Cmty. Affairs v. Burdine, 450 

U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 

207 (1981). To establish a prima facie case, an 

employee must show that: (1) she was within 

the protected age group; (2) she was qualified 

for the job; (3) she was subjected to an adverse 

employment decision or discharge; and (4) the 

adverse action occurred under circumstances 

giving rise to an inference of age 

discrimination. See Stratton v. Dep't For the 

Aging, 132 F.3d 869, 879 (2d Cir. 1997); 

Stetson v. Nynex Service Co., 995 F.2d 355, 

359 (2d Cir. 1993). 

[HN9]Once the plaintiff makes out a prima 

facie case, "a rebuttable presumption of 

discrimination arises and the burden then shifts 

[*16] to the defendant to articulate a legitimate 

nondiscriminatory reason for the employment 

decision." Stratton, 132 F.3d at 879. The 

purpose of this step is "to force the defendant to 

give an explanation for its conduct, in order to 

prevent employers from simply remaining 

silent while the plaintiff founders on the 

difficulty of proving discriminatory intent." 

Fisher v. Vassar College, 114 F.3d 1332, 1335-

36 (2d Cir. 1997) (en banc). 

Finally, if the defendant provides a 

nondiscriminatory rationale for its conduct, the 

rebuttable presumption drops out of the case. 

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 

510-11, 113 S. Ct. 2742, 125 L. Ed. 2d 407 

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2005 U.S. Dist. LEXIS 32312, * 

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(1993). The burden then rests on the plaintiff to 

prove not only that the proffered 

nondiscriminatory reason was pretextual, but 

also that the defendant discriminated against 

the plaintiff. Slattery v. Swiss Reinsurance Am. 

Corp., 248 F.3d 87, 91 (2d Cir. 2001). 

b. Plaintiff's Prima Facie Case 

Phillips has established the first three 

elements of her prima facie case. At the time of 

her termination, Phillips was 56 years old and 

therefore within the protected age group. The 

[*17] fact that Mt. Sinai approved Phillips' 

request to transfer to the Cardiac Care Unit and 

then her request to transfer back to the Payroll 

Department also suggests that she was qualified 

for the job. (See Phillips Dep. 31-32; Def.'s R. 

56.1 Stmt. P2). Finally, it is clear that Phillips' 

suspension and later termination were adverse 

employment actions. Thus, the only question 

remaining is whether Phillips has shown that an 

adverse employment action occurred under 

circumstances giving rise to an inference of age 

discrimination. 

Phillips does not contend that Lopez or any 

other Mt. Sinai employee made ageist remarks 

to her or in her presence. Instead, she offers 

several alleged examples of disparate treatment 

on the basis of her age. First, she notes that she 

received a disciplinary notice for the March 27, 

2000 payroll error despite the fact that 

Anthony, whom she describes as younger, was 

the person who brought the time cards to the 

Payroll Department from the mail room. 

(Phillips Aff. P3). Second, Phillips complains 

that after her co-worker Desiree Green was 

terminated, Lopez reassigned all of her payroll 

clerk duties to Phillips without "any effort to 

divide them evenly among the [*18] 

employees." (Id. P6). Third, Phillips contends 

that Anthony paid a dead employee, and Shroff, 

whom she also describes as "younger," 

overpaid an employee for unearned sick pay for 

over two years, without receiving disciplinary 

notices. (Id. P9). Fourth, Phillips asserts that 

Shroff directed her to make the August 14, 

2000 overpayment as part of a deliberate effort 

to cause her to make errors. (Id. P7; Phillips 

Dep. 123-27). Fifth, Philips notes that Lopez 

"refused to train" her on the "Atkins" system, a 

computerized payroll system used by the 

Payroll Department. (Phillips Aff. P4). Sixth, 

Phillips claims that, on one occasion, Lopez 

accused her of overpaying more than thirty 

employees, but dropped the matter without 

disciplining anyone once he learned that 

another employee had handled the payroll. (Id.

P12). For purposes of the McDonnell Douglas

analysis, I will assume that some or all of these 

allegations make out a prima facie case that the 

true motivation for Mt. Sinai's actions was age 

discrimination. 

c. Mt. Sinai's Defense 

On the assumption that Phillips has 

established a prima facie case, the burden shifts 

to Mt. Sinai to articulate a legitimate, [*19] 

nondiscriminatory reason for its decision to 

suspend and eventually terminate Phillips. Mt. 

Sinai's position, quite simply, is that Phillips 

was a serial offender, who made repeated errors 

despite several warnings. Mt. Sinai asserts that 

Phillips was suspended and then terminated 

solely for these payroll errors, as evidenced by 

the disciplinary notices previously issued to 

her. Having stated a legitimate 

nondiscriminatory reason for its actions, the 

burden shifts to Phillips to show that the 

proffered reasons are pretextual and that Mt. 

Sinai's real motivation was age discrimination. 

As noted earlier, this is not a case in which 

there is any direct evidence of age 

discrimination. For example, there is no proof 

that Lopez or anyone else in the Payroll 

Department made any remarks reflecting a bias 

against older Mt. Sinai employees. Instead, 

Phillips apparently seeks to prove that Mt. 

Sinai's purportedly ageneutral reasons for its 

actions are pretextual because younger 

employees were treated more favorably. Since 

Phillips took no depositions during discovery 

and has not proffered any exhibits other than 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 11 of 19
2005 U.S. Dist. LEXIS 32312, * 

Page 11 

her EEOC retaliation complaint as part of her 

motion papers, the record in this regard [*20] 

is remarkably sparse. 

In her papers, Phillips alleges that Anthony 

should have been disciplined for her role in the 

March 27, 2002 failure to process a large 

number of payroll checks, but was not - 

presumably because she was younger. 2

 (See

Pl.'s Mem. at 4). In order to warrant an 

inference of discrimination on the basis of age, 

Phillips would have to show that Anthony was 

similarly situated in all material respects. See 

Lloyd v. Bear Stearns & Co., 2004 U.S. Dist. 

LEXIS 24914, No. 99 Civ. 3323 (GBD), 2004 

WL 2848536, at *7 (S.D.N.Y. Dec. 9, 2004). 

Phillips has made no such showing in this case. 

3

 Accordingly, the fact that Anthony was not 

disciplined does not show that Phillips was 

treated disparately, much less that the 

differences in treatment are attributable to their 

respective ages. Indeed, as Mt. Sinai notes, 

during the period from 1998 through 2001, 

three payroll clerks other than Phillips were 

given disciplinary warnings. (Ex. M at 7) 

(Resp. to Interrog. No. 13). Two of the three 

employees were under the age of forty. (Id.

2004 U.S. Dist. LEXIS 24914, at [WL] 8) 

(Resp. to Interrog. No. 15). 

2 In her affidavit, Phillips alleges that 

Anthony is in her 30s. (Phillips Aff. 

P10). At her deposition, however, 

Phillips testified that Anthony was 

"maybe 40, 41." (Phillips Dep. 76-77). 

For its part, Mt. Sinai contends that 

Anthony was, in fact, 43 years old in 

2001. (See Ex. C at 5 n.2). The only 

documentary support for this assertion is 

an excerpt from a letter that Mt. Sinai's 

in-house counsel sent to the EEOC on 

March 16, 2001. (See id.). To the extent 

that this letter is offered for the truth of 

its contents, it plainly is inadmissible. 

See Fed. R. Civ. P. 56(e), Fed. R. Evid. 

802. 

 [*21] 

3 Mt. Sinai contends that Anthony was 

a Payroll Coordinator, not a Payroll 

Clerk like Phillips. (See Def.'s Reply 

Mem. at 4). Here, again, however, the 

only documentary support proffered by 

Mt. Sinai is a letter containing 

inadmissible hearsay. 

Phillips also alleges that Anthony and 

Shroff committed other errors comparable to 

hers without being disciplined. More 

specifically, Phillips states that Anthony once 

"paid a dead person, Noel Johnson, and was not 

disciplined," and that Shroff paid another 

employee, Ms. Cleckly, "for unearned sick pay 

for over two years." (Phillips Aff. P9). She 

similarly avers that, because of the many 

problems arising out of a manual payroll 

system, "overpaying errors . . . were not 

grounds for suspension or termination unless 

many errors were made." 4

 (Id.). 

4 Phillips does not indicate how many 

errors were too many under Mt. Sinai's 

alleged policy. Mt. Sinai contends, 

however, that Phillips committed 

numerous errors after receiving her 

second Warning Notice. (See Def.'s 

Reply Mem. at 4 n.1) 

 [*22] Phillips has not indicated how many 

errors were necessary for an employee to cross 

the disciplinary threshold. Her affidavit also 

fails to describe the circumstances surrounding 

the payments to Johnson and Cleckly. She 

therefore has not shown that the errors she cites 

are comparable to those that caused Mt. Sinai 

to discipline her. Moreover, although she 

provides the names of the payees and a 

generalized description of the alleged errors, 

Phillips has not shown, as Rule 56(e) of the 

Federal Rules of Civil Procedure requires, that 

she has personal knowledge of the matters at 

issue and is competent to testify as to them. Her 

statements concerning alleged errors by other 

Payroll Department employees, and the 

circumstances under which such employees are 

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2005 U.S. Dist. LEXIS 32312, * 

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disciplined, consequently cannot be considered 

by the Court in connection with Mt. Sinai's 

motion. 

Phillips also complains that she was 

assigned all of the duties formerly handled by 

Desiree Green after Green was fired by Lopez. 

(Phillips Aff. P6). Phillips suggests that these 

duties should have been divided evenly among 

the remaining Payroll Department employees. 

(Id.). Ironically, Green was [*23] significantly 

younger than Phillips. (See Phillips Dep. at 41) 

(stating that Green was "30-something" in 

2000). Although Phillips speculates that Lopez 

took such steps as redistributing Green's work 

unevenly "to either worsen [Phillips'] job 

performance or to make [her] quit," (Phillips 

Aff. P6), such conclusory assertions obviously 

are not admissible to show that Lopez acted on 

the basis of Phillips age. See Randolph v. CIBC 

World Mkts., 2005 U.S. Dist. LEXIS 4839, No. 

01 Civ. 11589 (RWS), 2005 WL 704804, at *6 

(S.D.N.Y. Mar. 29, 2005) (citing Shumway v. 

United Parcel Serv., Inc., 118 F.3d 60, 65 (2d 

Cir. 1997) [HN10]("conclusory" allegations 

concerning the treatment of similarly situated 

employees "do not raise a genuine issue of 

material fact")); see also Alston v. New York 

City Transit Auth., 1999 U.S. Dist. LEXIS 

11376, No. 97 Civ. 1080 (RWS), 1999 WL 

540442, at *7 (S.D.N.Y. July 26, 1999)

(finding that Title VII plaintiff's "conclusory 

allegations and failure to provide some factual 

support for his prima facie case of 

discrimination did not satisfy even the light 

burden with which [he] is faced at this stage of 

the proceedings"). 

Phillips also suggests that at least one of 

[*24] the August 2000 erroneous payments 

was made because Shroff told her that the 

payee had time available. (Phillips Aff. P7). 

She also avers that both of her alleged errors in 

August were attributable to "poor management 

by Lopez and Shroff." (Id.). Assuming that 

both of these assertions are correct, they plainly 

do not suggest that either Lopez or Shroff was 

motivated to act as they did on the basis of 

Phillips' age. 

Phillips also alleges that she "wanted to 

learn the [computerized] Atkins system" so that 

she would not have to locate index cards in 

order to perform her work, but that Lopez 

refused this request. (Id. PP4, 9). Again, this 

brief statement provides no particulars as to the 

timing of her request, how comparable 

individuals were treated, or the reasons why her 

request was denied. In the absence of such 

details, there is no basis upon which a finder of 

fact could reasonably conclude that the alleged 

denial of her request evidences Lopez's bias 

against older persons. Phillips' fleeting 

reference to an occasion when Lopez accused 

her of overpaying thirty or more employees, 

but then "dropped the matter without 

disciplining anyone" after he learned that 

someone else [*25] had "handled the payroll," 

is similarly bereft of any evidentiary detail 

from which a finder of fact could reasonably 

conclude that the incident evidenced Lopez's 

bias against older employees. (Id. P12). 

In sum, taken individually or as a group, the 

events that Phillips relies upon as the basis for 

her claim of age discrimination would not 

permit a finder of fact to conclude that Mt. 

Sinai discriminated against her on the basis of 

her age. Mt. Sinai therefore is entitled to 

summary judgment on these claims. 

2. National Origin 

Phillips' original EEOC complaint made no 

mention of her national origin as a basis for Mt. 

Sinai's alleged discrimination. (See Ex. K). 

Apparently for that reason, Phillips has 

withdrawn her claim of discrimination on the 

basis of her national origin under Title VII. 

(See Docket No. 11). This claim consequently 

is being pursued only under the NYSHRL and 

NYCHRL. Those statutes [HN11]make it 

unlawful for an employer to discriminate 

against an employee in the terms, conditions or 

privileges of employment on the basis of 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 13 of 19
2005 U.S. Dist. LEXIS 32312, * 

Page 13 

national origin. See N.Y. Exec. Law § 

296(1)(a); N.Y. City Admin. Code § 8-

107(1)(a). Although Title [*26] VII is not 

available as a basis for Phillips to recover 

damages for this claim, the McDonnell Douglas

framework nevertheless is applicable. See Cruz 

v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 

(2d Cir. 2000); Landwehr v. Grey Adver., Inc., 

211 A.D.2d 583, 622 N.Y.S.2d 17 (App. Div.

1st Dep't 1995). 

Phillips was born in Panama, but her 

grandparents were Jamaican. (See Phillips Aff. 

P1; Phillips Dep. at 5-6, 193-94). Her national 

origin discrimination claim rests on her belief 

that Lopez discriminated against her because 

she is of Jamaican descent. (See Pl.'s Mem. at 

4-5). Phillips does not contend that anyone 

other than Lopez discriminated against her 

because of her national origin. (Phillips Dep. 

285). 

The evidence that Phillips offers to support 

her claim is largely a rehash of the evidence 

that she cited in support of her age 

discrimination claim. For example, Phillips 

notes that Anthony and Shroff, who are not 

Jamaican, were not disciplined although they 

also made errors in the processing of Mt. 

Sinai's payroll. (See Pl.'s Mem. at 5). Phillips 

also again relies on Lopez's alleged refusal to 

train her on the Atkins system. ( [*27] Id.). 

The only evidence that Phillips relies upon 

which even remotely suggests that Lopez may 

have discriminated against her based on her 

heritage relates to an occasion in 2000 or 2001 

when Phillips answered an office telephone and 

told Lopez, "Sue called." Lopez apparently 

thought Phillips said "Stew called," and 

responded, "I don't understand your Jamaican 

accent." (Phillips Dep. 197). In her affidavit, 

Phillips maintains that Lopez "constantly" 

made fun of her Jamaican accent in front of 

office staff, despite the fact that he clearly 

could understand her speech. (Phillips Aff. P3). 

When Phillips was asked during her deposition 

whether Lopez made other comments about her 

Jamaican accent, she said, "To be frank, Mr. 

Lopez was always talking about everybody's 

accent." (Phillips Dep. 199). She also testified 

that she did not recall Lopez saying "anything 

else" about her accent. (Id. at 200). Mt. Sinai 

reads this deposition testimony as an admission 

that Lopez only made a comment about her 

accent on a single occasion. (See Def.'s Mem. 

at 6-7). The testimony can also be read to 

indicate that Lopez was "always talking about" 

Phillips accent, but restricted his remarks to 

statements [*28] about his alleged difficulty 

understanding her. 

Even if a finder of fact were to conclude 

that Lopez frequently made fun of Phillips' 

accent, there is nothing in the record before the 

Court which indicates a nexus between those 

comments and his decision to discipline or 

terminate her. Moreover, with the exception of 

the one incident involving a telephone call from 

"Sue," Phillips has provided no details as to 

Lopez's allegedly repeated acts. Phillips also 

did not complain to the EEOC or SDHR about 

Lopez's alleged harassment prior to her 

termination. (See Exs. J, K). 5

5 Following her termination, in her 

EEOC complaint charging Mt. Sinai with 

retaliation, Phillips alleged for the first 

time that "my supervisor often derided 

my national origin, Jamaican, by making 

fun of my accent, and made other 

derogatory comments about Jamaicans." 

(Phillips Aff. Ex. A). 

In these circumstances, Lopez's alleged 

remarks about Phillips' accent are insufficient 

to establish a prima facie case of discrimination 

on national [*29] origin grounds. See Danzer 

v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 

1998) [HN12]("As a general rule, isolated and 

disconnected derogatory remarks by a decision 

maker are by themselves insufficient to raise an 

inference of discrimination."); see also 

O'Connor v. Viacom Inc., 1996 U.S. Dist. 

LEXIS 5289, No. 93 Civ. 2399 (LMM), 1996 

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2005 U.S. Dist. LEXIS 32312, * 

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WL 194299, at *5 (S.D.N.Y. April 23, 1996)

("Stray remarks in the workplace, by 

themselves, and without a demonstrated nexus 

to the complained of personnel action will not 

defeat the employer's motion for summary 

judgment."); De La Cruz v. New York City 

Human Res. Admin. Dep't of Soc. Servs., 884 F. 

Supp. 112, 116 (S.D.N.Y. 1995) (granting 

employer's motion for summary judgment, 

despite allegations of stray racial remarks, 

where plaintiff's work contained "numerous 

and critical errors"). 

3. Retaliation 

Phillips' Third Cause of Action alleges that 

Mt. Sinai violated the ADEA by terminating 

her in retaliation for her filing of a Charge of 

Discrimination with the EEOC. (Am. Compl. 

PP 34-37). Similarly, her Sixth and Ninth 

Causes of Action allege that Mt. Sinai violated, 

respectively, the NYSHRL and the NYCHRL 

by retaliating against [*30] her. (Id. PP54-60, 

73-79). 

[HN13]Under the ADEA, it is unlawful for 

an employer to retaliate against an employee 

who has exercised her statutory right to 

complain about conduct that she considers 

discriminatory. See Slattery v. Swiss 

Reinsurance Am. Corp., 248 F.3d 87 at 94; see 

also Davis v. State Univ. of N.Y., 802 F.2d 638, 

642 (2d Cir. 1986) ("A finding of unlawful 

retaliation is not dependent on the merits of the 

underlying discrimination complaint."). 

Similarly, [HN14]the NYSHRL and NYCHRL 

both provide that an employer may not retaliate 

against an employee engaged in a protected 

activity. See N.Y. Exec. Law § 296(7); N.Y. 

City Admin. Code § 8-107(7). 

Retaliation claims brought under all three 

statutes are governed by the same standards. 

See Duffy v. Drake Beam Morin, Harcourt 

General, Inc., 1998 U.S. Dist. LEXIS 7215, 

No. 96 Civ. 5605 (MBM), 1998 WL 252063, at 

*6 n.7 (S.D.N.Y. May 19, 1998); Devlin v. 

Transp. Communs. Int'l Union, 2002 U.S. Dist. 

LEXIS 10048, No. 95 Civ. 0742 (JFK), 2002 

WL 413919, at *12 (S.D.N.Y. Mar. 14, 2002), 

aff'd sub nom Milone v. Travelers Ins. Co., 93 

Fed. Appx. 323, 324 (2d Cir. 2004); see also 

Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n.4 

(2d Cir. 1995) [*31] (standard of proof for 

claims under the state Human Rights Law is the 

same as for those brought under Title VII); 

Pace Univ. v. Comm'n on Human Rights, 200 

A.D.2d 173, 182-83, 611 N.Y.S.2d 835 (1st 

Dep't 1994), rev'd on other grounds, 85 N.Y.2d 

125, 647 N.E.2d 1273, 623 N.Y.S.2d 765 

(1995) (setting forth elements of retaliation 

claim under NYCHRL and noting that the 

requirements of Title VII are "virtually 

identical"). Accordingly, [HN15]to make out a 

prima facie case of retaliation, Phillips must 

show that (1) she participated in a protected 

activity; (2) Mt. Sinai knew of this activity; (3) 

she was subjected to an adverse employment 

action; and (4) there is a causal connection 

between the protected activity and the adverse 

employment action. See Cifra v. GE, 252 F.3d 

205, 216 (2d Cir. 2001); Holt v. KMIContinental, Inc., 95 F.3d 123, 130 (2d Cir. 

1996). The last of these elements can be 

established: (a) "directly through evidence of 

retaliatory animus directed against a plaintiff 

by the defendant;" or (b) "indirectly by 

showing that the protected activity was 

followed closely by discriminatory treatment . . 

. or through other evidence such as disparate 

[*32] treatment of fellow employees who 

engaged in similar conduct . . ." DeCintio v. 

Westchester County Med. Ctr., 821 F.2d 111, 

115 (2d Cir. 1987) (internal citations omitted) 

(emphasis in original). 

[HN16]Once a prima facie showing has 

been made, an employee's retaliation claim is 

subject to the McDonnell Douglas burdenshifting analysis. Consequently, if the employer 

furnishes a legitimate nondiscriminatory reason 

for the contested actions, the burden of 

persuasion rests with the employee, who must 

"demonstrate that there is sufficient potential 

proof for a reasonable juror to find the 

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2005 U.S. Dist. LEXIS 32312, * 

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proffered legitimate reason merely a pretext for 

impermissible retaliation." Richardson v. New 

York State Dep't of Correctional Serv., 180 

F.3d 426, 443 (2d Cir. 1999). 

 

In this case, Phillips retaliation claim founders 

on the shoals of the causal nexus requirement. 

Phillips concedes that the first Mt. Sinai 

Warning Notice could not have been issued in 

retaliation for her NYSDHR complaint because 

her filing was made several weeks after Mt. 

Sinai acted. (Pl.'s Mem. at 6). She argues, 

however, that she has made a prima facie

showing of causation because her suspension 

and termination [*33] occurred after her 

NYSDHR and EEOC filings. Indeed, it is 

undisputed that Phillips was suspended on 

October 6, 2000, six months after she filed her 

NYSDHR complaint. It similarly is undisputed 

that Phillips was terminated on April 20, 2001, 

approximately three months after she filed her 

first EEOC complaint on January 23, 2001. 

(Def.'s R. 56.1 Stmt. P7; Phillips Aff. P11). The 

alleged temporal nexus between Phillips' filings 

and her suspension and termination is the only 

evidence that Phillips proffers in an effort to 

establish that Mt. Sinai's actions were 

retaliatory. (See Pl.'s Mem. at 6-7). 

[HN17]The Second Circuit has not drawn a 

bright line as to the maximum amount of time 

between a protected activity and an adverse 

employment action that will satisfy the 

causation element of a retaliation claim. 

Gorman-Bakos v. Cornell Co-op Extension of 

Schenectady County, 252 F.3d 545, 554 (2d 

Cir. 2001). Nevertheless, a gap of only a month 

or two clearly warrants the inference that a 

causal nexus may exist. See, e.g., Treglia v. 

Town of Manlius, 313 F.3d 713, 721 (2d Cir. 

2002) ("The temporal proximity between . . . 

protected activity in February 1998 [*34] and 

the allegedly adverse employment actions in 

March 1998 is sufficient to establish the 

required causal link for a prima facie case."); 

Cifra, 252 F.3d at 217 (summary judgment 

should not have been granted where employee 

was fired "just 20 days after GE learned that 

she had hired an attorney to pursue her claim of 

gender discrimination"); Quinn v. Green Tree 

Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998)

(error to grant summary judgment where 

plaintiff's "discharge came less than two 

months after she filed a complaint with 

[defendant's] management and just ten days 

after she filed a complaint with the [SDHR]"). 

On the other hand, durations longer than that 

may not be sufficient to defeat a motion for 

summary judgment in the absence of other 

corroborative evidence. See, e.g., Hollander v. 

Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 

1990) (finding three-month gap too long to 

"fulfill the final requirement of a causal nexus" 

between the protected activity and retaliatory 

action); Gilford v. City of New York, 2004 U.S. 

Dist. LEXIS 13150, No 03 Civ. 0091 (SHS), 

2004 WL 1574695, at *7 (S.D.N.Y. Jul. 14, 

2004) (plaintiff "failed to raise an [*35] 

inference of retaliation based on temporal 

proximity" because nearly four months had 

elapsed between filing of charge and alleged 

retaliation); Allen v. St. Cabrini Nursing Home, 

Inc., 198 F. Supp. 2d 442, 450 (S.D.N.Y. 2002)

("Claims of retaliation are routinely dismissed 

when as few as three months elapse between 

the protected activity and the alleged act of 

retaliation."); but see, e.g., Suggs v. Port. Auth. 

of N.Y. and N.J., 1999 U.S. Dist. LEXIS 6319, 

No. 97 Civ. 4026 (RPP), 1999 WL 269905, at 

*6 (S.D.N.Y. May 4, 1999) (six-month interval 

between EEOC filing and termination suggests 

causal relationship); Stephens v. SUNY at 

Buffalo, 11 F. Supp. 2d 242, 250 (W.D.N.Y. 

1998) (summary judgment denied despite 

seven-month gap). 

In this case, Phillips' assertion that she was 

suspended in retaliation for her filing of a 

discrimination complaint with the NYSDHR 

fails as a matter of law. At the outset, the 

warning notice that triggered her suspension 

was issued some six months after she 

commenced the state administrative 

proceeding, which substantially attenuates any 

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2005 U.S. Dist. LEXIS 32312, * 

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inference of causal nexus that might be drawn. 

Furthermore, Phillips has not shown that Lopez 

[*36] or anyone else involved in the decision 

to suspend her was aware that her NYSDHR 

complaint had been filed. For these reasons, 

Phillips has not made the required prima facie

showing. 

The temporal nexus between the filing of 

Phillips' first EEOC charge and her subsequent 

termination is much greater since only about 

three months elapsed between the two events. It 

furthermore is clear that Mt. Sinai knew about 

Phillips' filing since its Associate General 

Counsel, Marine O. Lowy, Esq., sent the EEOC 

a detailed response to Phillips' complaint on 

March 16, 2001. (Ex. C). 6

 For these reasons, 

Phillips arguably has established a prima facie

retaliation claim with respect to her 

termination. 

6 The first page of Ms. Lowy's letter is 

not annexed to Exhibit C, but it is clear 

from the text of the letter that the EEOC 

is the addressee. (See, e.g., id. at 5 n.3 

("Should the EEOC require that 

information, arrangements will be made 

to provide it.")). 

Mt. Sinai, in turn, contends that Phillips 

was fired, after [*37] two prior warnings, 

because she overpaid an additional five 

employees. More specifically, Mt. Sinai's 

termination notice alleged that Phillips failed to 

record non-productive time on the record cards 

of four employees, one of whom was on 

medical disability. (Ex. H). Mt. Sinai's notice 

further alleged that Phillips failed to record the 

non-productive time of an additional employee 

on March 19, 2001. (Id.). During her 

deposition, Phillips essentially admitted that 

she failed to record non-productive time on the 

first of these dates. (See Phillips Dep. 145-48). 

Accordingly, Mt. Sinai has proffered a 

legitimate nondiscriminatory reason for firing 

Phillips - namely, her failure to follow 

instructions. To defeat Mt. Sinai's motion, 

Phillips therefore must show that there is 

evidence from which a reasonable juror could 

conclude that Mt. Sinai's asserted reasons for 

firing her are pretextual. 

Phillips contends that it was the practice in 

Mt. Sinai's Payroll Department not to make a 

contemporaneous record of holiday time. As 

she explained at her deposition, "whenever 

there is a holiday there are too many cards to 

record, so what we do is the following day if 

we find the card . . . [*38] we will go and post 

it. That's what we do." (Id. at 151). Taking 

issue with Lopez's allegation that this was 

contrary to the instructions that she was given, 

Phillips testified, "That's the rules. That's the 

rules from [when a prior manager] was there 

until I left in 2001." (Id. at 152; see also id. at 

30-31 (indicating that Lopez replaced the prior 

manager in or around 1996)). 

Mt. Sinai has not introduced any evidence 

of a written policy concerning the posting of 

nonproductive holiday time. As a consequence, 

the arguments of both sides rest on their 

respective understandings as to what the rules 

required. Faced with these dueling 

interpretations, a finder of fact could 

reasonably adopt Phillips' testimony and 

conclude that Mt. Sinai's purported reasons for 

firing her were pretextual. For this reason, 

Phillips is entitled to a trial, but only insofar as 

she contends that she was fired in retaliation for 

the filing of her first EEOC complaint. 

4. Overtime and Vacation Time 

Phillips final claim is that she is owed 

accrued vacation pay of less than $ 1,000 for 

calendar year 2000, plus $ 32 in unpaid 

overtime. (See Phillips Aff. P14). Phillips has 

not submitted [*39] any documentary evidence 

to establish her entitlement to either amount. 

With respect to the vacation pay, she claims 

that every Mt. Sinai employee lost the same 

amount of vacation time in 2000 due to "some 

glitch in the system." (Phillips Dep. at 218). At 

her deposition, however, she conceded that 

Case 1:07-cv-03583-LBS-RLE Document 25-3 Filed 04/28/2008 Page 17 of 19
2005 U.S. Dist. LEXIS 32312, * 

Page 17 

Shroff was supposed to "fix the problem" and 

that she did not know if he did. (Id. at 220-21). 

She also was unable to explain her overtime 

claim, admitting that she did not know the dates 

or times to which it related. (Id. at 223-24). 

In sum, the only evidence in the record 

regarding these wages claims is Phillips' 

conclusory statements. Such unsubstantiated 

speculation does not entitle Phillips to recover 

any damages. Lloyd, 2004 U.S. Dist. LEXIS 

24914, 2004 WL 2848536, at *7 (citing Fujitsu 

Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 

(2d Cir. 2001) [HN18](party opposing 

summary judgment "may not rely on 

conclusory allegations or unsubstantiated 

speculation") and Scotto v. Almenas, 143 F.3d 

105, 114 (2d Cir. 1998) (same). 

IV. Conclusion 

For the reasons set forth above, Mt. Sinai's 

motion for summary judgment should be 

granted, except insofar as Phillips [*40] 

contends in her Third Cause of Action that Mt. 

Sinai unlawfully retaliated against her for filing 

her first EEOC complaint. 

V. Notice of Procedure for Filing of 

Objections to this Report and Recommendation 

The parties are hereby directed that if they 

have any objections to this Report and 

Recommendation, they must, within ten days 

from today, make them in writing, file them 

with the clerk of the Court, and send copies to 

the chambers of the Honorable George B. 

Daniels, United States District Judge, United 

States Courthouse, 40 Centre Street, New York, 

New York 10007, to the chambers of the 

undersigned, at the United States Courthouse, 

500 Pearl Street, New York, New York 10007, 

and to any opposing parties. See U.S.C. § 

636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b). Any 

requests for an extension of time for filing 

objections must be directed to Judge Daniels. 

The failure to file timely objections will result 

in a waiver of those objections for purposes of 

appeal. See Thomas v. Arn, 474 U.S. 140, 106 

S. Ct. 466, 88 L. Ed. 2d 435 (1985); 28 U.S.C. 

§ 636(b)(1) [*41] ; Fed. R. Civ. P. 6(a), 6(e), 

72(b). 

Dated: New York, New York 

November 14, 2005 

FRANK MAAS 

United States Magistrate Judge 

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