RONNIE ABRAMS, District Judge:
Plaintiff Shanti Novak brings this action against Defendants Waterfront Commission of New York Harbor, Captain Scott Politano, Chief John Hennelly and Sergeant Kristen Brylinski (collectively, "Defendants"). Novak asserts claims of sex discrimination under Title VII of the Civil Rights Act of 1964 and sex discrimination and retaliation under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290, et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101, et seq. She also asserts state common law claims for negligent supervision or retention of an unfit employee, intentional infliction of emotional distress and prima facie tort. Before the Court is Defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in its entirety.
In or around July 2006, Novak began dating Politano, at the time a detective in the Commission's Brooklyn field office. (Id. ¶ 8.) Their relationship, well-known in the Police Division, progressed and the two became live-in partners. (Compl. ¶¶ 18-19.) In December 2006, Politano was promoted to Lieutenant and, in May 2007, was transferred to the New Jersey field office, thereby becoming Novak's supervisor. (56.1 Stmt. ¶¶ 9-11.) Novak terminated her relationship with Politano shortly thereafter, in June or July 2007. (Id. ¶ 12.)
Novak's breakup with Politano led to an uncomfortable work environment for Novak, which continued even after Politano was replaced by Brylinski as Novak's supervisor. (Id. ¶ 13; Provost Aff. Ex. A (Transcript of the Deposition of Shanti Novak Kurschner) at 224:15-225:14.) According to Novak, Politano and Brylinski "treated [her] differently than everyone else in [her] squad," subjected her to excessive scrutiny, and otherwise "belittled," "spoke down to" and made "an example of" her. (56.1 Stmt. ¶ 38; First DHR Compl. ¶ 7; Provost Aff. Ex. A at 224:15-225:14.) Specifically, Novak asserts that, following her breakup with Politano:
Novak filed her First DHR Complaint on December 19, 2008, alleging that "immediately after ... [her] split with Lt. Politano," she began to be subjected to various of the above-listed "unlawful discriminatory actions." (First DHR Complaint ¶¶ 1, 7-8; 56.1 Stmt. ¶ 20.) Shortly thereafter, on January 5, 2009, Novak filed her Second DHR Complaint, alleging claims of continued discrimination and also a claim that she was retaliated against for filing the First DHR Complaint. (Dkt. 20-4; 56.1 Stmt. ¶ 27.) The alleged retaliation took the form of a written "memoranda of counseling" Novak and another detective received in connection with a December 11, 2008 incident whereby they arrived forty-five minutes late to a mandatory department-wide training session. (Dkt. 20-4; 56.1 Stmt. ¶¶ 19, 21, 23; Provost Aff. Exs. E, F, G, H.)
As a result of the stress she felt from her job, Novak experienced stomach problems, headaches, sore throats and heart palpitations. (56.1 Stmt. ¶ 59.) Novak visited a psychologist to address depression and anxiety, though she never sought medical treatment for her physical conditions or took medication for any emotional condition. (Id. ¶¶ 57, 60-61; Provost Aff. Ex. A at 227:10-18.)
At no point during the relevant period was Novak terminated or suspended, nor did she suffer a loss of pay or other compensation, such as sick time or vacation time. (56.1 Stmt. ¶¶ 25, 51, 53.) Novak was never demoted or denied an opportunity for promotion, and she was never formally disciplined during her employment at the Commission.
Novak filed the Complaint in this action on December 30, 2010. (Dkt. 1.) Defendants moved to dismiss on April 21, 2011.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact is `material' for these purposes when it `might affect the outcome of the suit under the governing law,'" and "[a]n issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A court reviewing a motion for summary judgment must `construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003)). Although the Second Circuit has noted that "an extra measure of caution" is needed in granting summary judgment in discrimination cases since direct evidence of discriminatory intent is rare, summary judgment nonetheless "remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir.2006) (citations omitted); Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.").
Title VII provides that it is an "unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Courts analyze the legal sufficiency of a sex discrimination claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, Novak must first establish a prima facie case of discrimination by showing that she is within a protected class, she was qualified for the position, she was subject to an adverse employment action, and the adverse action occurred under circumstances giving rise to an inference of discrimination. Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir.2009).
If a plaintiff establishes a prima facie case, "the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse act." Id. at 498-99 (internal quotation marks omitted). If the defendant carries that burden, the burden shifts back to the plaintiff to demonstrate that the legitimate reasons offered by the defendant were a pretext for discrimination. Id. at 499. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Defendants do not dispute that Novak is a member of a protected class and that she is qualified for her position. Defendants
As explained by the Second Circuit, "[t]he sine qua non of a gender-based discriminatory action claim under Title VII is that `the discrimination must be because of sex.'" Patane v. Clark, 508 F.3d 106, 112 (2d Cir.2007) (emphasis in original) (quoting Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 189 (2d Cir.2001)); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) ("It is axiomatic that mistreatment at work... is actionable under Title VII only when it occurs because of an employee's sex, or other protected characteristic").
In this case, there is simply no evidence that would permit a rational juror to conclude that Novak was subjected to unfair treatment because she is a woman. There is evidence, however, that she was treated unfairly due to animus resulting from her decision to end her consensual relationship. Indeed, as Novak testified at her deposition, she believes the discrimination to which she was allegedly subjected stems directly from her decision to break up with Politano. See Provost Aff. Ex. A at 91:24-92:8 ("Q. Is it your understanding or impression that [Politano] treated you that way [i.e., different that her co-workers], raising his voice, disrespecting you, speaking to you in a disrespectful manner, because of the fact that you two had broken up? A. Yes, absolutely. Q. Okay. Was there another reason for it? No."); see also id. at 124:24-126:8 ("Q. Is it your allegation that you were reassigned from [assisting on the FBI task force project] to general investigative work because you broke up with Politano? A. Yes, I believe that.... Q. Did [the officers who reassigned Novak] make any statements that would lead you to believe that you were removed from this assignment because of your sex? A. No."); 136:24-137:10 ("Q. Do you allege that you received a written counseling arising out of the incident in which you were late to the mandatory training session because you broke up with Lieutenant Politano? ... A. There's a way of putting it but yes."); 172:11-14 ("Q. Are you alleging that you were assigned to office duty because you broke up with Lieutenant Politano? A. Yes."); 173:14-17 ("Q. Do you believe that Captain Politano intentionally omitted your name from this email [disseminating a shooting range schedule] because you broke up with him? A. Yes."); 175:5-9 ("Q.... [O]n April 27th you were the only detective to whom newly hired detectives were not assigned, are you alleging that this was done because you broke up with Lieutenant Politano? A. Yes."); 178:22-179:2 ("Q. Okay. Are you alleging that Sergeant Brylinski asked you to submit a case management form in connection with your job responsibilities is because [sic] you broke up with Lieutenant Politano? A. Yes."); 184:8-13 ("Q. Nevertheless, you are still alleging that Sergeant Alexander came to check, to ensure that you were actually sick on a day that you used sick leave time because you broke up with Lieutenant Politano; is that correct? A. Yes.").
In DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304, 308 (2d Cir.1986), the Second Circuit held that "voluntary, romantic relationships cannot form the basis of a [Title VII] sex discrimination suit," thus barring claims against a supervisor who recommended his romantic partner for promotion instead of plaintiffs. Courts in this district have since cited DeCintio in holding that Title VII sex discrimination claims may not be premised solely on evidence of mistreatment following the termination of a romantic relationship. See Kahn v. Objective Solutions, Int'l, 86 F.Supp.2d 377, 382 (S.D.N.Y.2000) ("Participation in a consensual office affair does
Novak makes no effort to distinguish these cases from her own case, but instead argues that "discriminatory animus may be based on evidence that a supervisor mistreated an employee because she rejected his sexual advances." (Opp'n 10.) The Court does not dispute this general principle, see Fitzgerald v. Henderson, 251 F.3d 345, 356 (2d Cir.2001), which sounds in quid pro quo sexual harassment. There are clearly circumstances in which an employee's failed romantic relationship with a supervisor can lead to an actionable Title VII claim, such as when the employee's subsequent mistreatment can be tied to the rejected supervisor's unwanted sexual advances or other inappropriate efforts to resume the relationship. See Babcock v. Frank, 729 F.Supp. 279, 287-88 (S.D.N.Y. 1990) (inference of discrimination existed where, following plaintiff's decision to terminate romantic relationship with supervisor, he "threatened her with destruction of her career ... if she did not return his affections and that when she no longer did, she suffered retaliation"); Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1150, 1157 (E.D.N.Y.2003) (finding that where supervisor "repeatedly stalked [subordinate], demanding that they resume their relationship and threatening various consequences if they did not," constituted actionable discrimination).
Where, as here, however, there is no evidence that the spurned supervisor made any sexual advances towards Novak following their breakup, or engaged in other efforts to renew the relationship, there is no actionable Title VII violation. See, e.g., Doherty v. Nederlander Producing Co., No. 04 Civ. 3324(LTS)(JCF), 2006 WL 2239421, at *5 (S.D.N.Y. Aug. 4, 2006) (summary judgment for defendant appropriate on harassment claim where spurned coworker's improper conduct was motivated by no more than "frustration about the failed relationship" and not by plaintiff's sex); Conklin v. Cnty. of Suffolk, 859 F.Supp.2d 415, 428 (E.D.N.Y.2012) ("[C]ourts often find that harassment by a co-worker is not considered to be `based on sex' when it arises from a failed relationship."); Stepheny v. Brooklyn Hebrew Sch. for Special Children, 356 F.Supp.2d 248, 263 (E.D.N.Y.2005) ("Conduct motivated by personal animosity does not run afoul of Title VII's prohibition against altering the terms and conditions of employment because of sex....").
Even if Novak had produced evidence sufficient to give rise to an inference of discrimination, she has still failed to show that she suffered a legally cognizable adverse employment action. As the Second Circuit has explained, "[a] plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000) (citation and internal quotation marks omitted). Such an action "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices... unique to a particular situation." Id.
Here, Novak did not suffer any of the employment actions typically considered to be adverse. She is still employed as a detective by the Waterfront Commission and was at no point demoted or denied an opportunity for promotion. She did not lose wages, vacation time or sick time and she was not formally disciplined during her employment at the Commission.
That Novak was assigned work she deemed "unfavorable" (office duty) and was removed from a project she apparently favored (assisting detectives on an FBI matter) does not mean she was subjected to a material adverse action. See Morrison v. Potter, 363 F.Supp.2d 586, 590-91 (S.D.N.Y.2005) ("[I]n order to qualify as an adverse employment action, a change in responsibilities must be so unsuited to plaintiff's skills as to constitute `a setback to plaintiff's career' ... subjective feelings about a change in job duties do not transform a reassignment into an adverse employment action.") (quoting Galabya, 202 F.3d at 641); see also Dotson v. City of Syracuse, No. 04 Civ. 1388, 2009 WL 2176127, at *10 (N.D.N.Y. July 21, 2009) ("[P]laintiff's preference for desk duty in lieu of road duty does not constitute adverse employment action under Title VII as it was not a materially significant disadvantage with respect to her employment.").
A similar analysis applies to Novak's allegation that she did "not receive any further formal Detective training, even though [she had] witnessed many co-workers being permitted to attend training." Although Novak nowhere goes so far as to allege that Defendants actually denied her permission to attend training, any such allegation would be unsupported by evidence that such denial affected "either plaintiff's opportunities for professional growth and career advancement or ... plaintiff's compensation." Nakis v. Potter, No. 01 Civ. 10047(HBP), 2004 WL 2903718, at *20 (S.D.N.Y. Dec. 15, 2004); see also Hill v. Rayboy-Brauestein, 467 F.Supp.2d 336, 352 (S.D.N.Y.2006) ("When an employee cannot show material harm from a denial of training, such as a failure to promote or a loss of career advancement opportunities, there is no adverse employment action.").
Moreover, that Novak received a disproportionate number of evening and weekend shifts and was denied shift change requests are not, without more, events so material as to constitute adverse actions. Antonmarchi v. Consol. Edison Co., No. 03 Civ. 7735(LTS)(KNF), 2008 WL 4444609, at *14 (S.D.N.Y. Sept. 29, 2008) ("[U]nfavorable hours do not constitute an
Nor do Novak's various claims of excessive scrutiny — questioning Novak's entitlement to overtime pay, singling Novak out during morning roll call, monitoring Novak's sick day usage — constitute adverse actions by Defendants. See Stoddard v. Eastman Kodak Co., 309 Fed.Appx. 475, 478-79 (2d Cir.2009) ("[U]ndue and overly harsh criticism by [plaintiff's] boss" did not constitute an adverse employment action.); Hill, 467 F.Supp.2d at 354-55 ("[E]xcessive scrutiny and review by [plaintiff's] supervisors" is not an adverse employment action.).
Finally, while certain conduct by Defendants may have been harsh and offensive, it was not so egregious as to have constituted an adverse employment action. "Title VII prohibits discrimination; it is not a shield against harsh treatment at the work place. Personal animosity is not the equivalent of sex discrimination [and][f]he plaintiff cannot turn a personal feud into a sex discrimination case." Doherty, 2006 WL 2239421, at *5 (internal punctuation omitted). Therefore, Politano's alleged hostile attitude or sarcastic remarks, for example, are not actionable. See, e.g., Barounis v. N.Y.C. Police Dep't, No. 10 Civ. 2631(SAS), 2012 WL 6194190, at *12 (S.D.N.Y. Dec. 12, 2012) ("Although Barounis has offered proof that Lts. Medina and Algarin were hostile to him by yelling at him in front of co-workers and giving him a hard time — this is not an adverse employment action."); Scott v. City of N.Y. Dep't of Corr., 641 F.Supp.2d 211, 231 (S.D.N.Y.2009) ("[V]erbal abuse is typically insufficient to constitute an adverse employment action because negative or otherwise insulting statements are hardly even actions, let alone adverse actions.") (citation and internal punctuation omitted); Honey v. Cnty. of Rockland, 200 F.Supp.2d 311, 321 (S.D.N.Y.2002) ("The fact that [plaintiff's supervisor] did not engage plaintiff in conversation, and only addressed her if she first addressed him, does not constitute an adverse employment action.").
Novak also brings sex discrimination claims, as well as retaliation claims,
Bi-state entities created pursuant to the Compact Clause of the U.S. Constitution
Id. at 979-980, 529 N.Y.S.2d 67, 524 N.E.2d 421 (citations omitted). In light of that background, the Malverty court held the law to be inapplicable to the Commission, reasoning that:
Id. at 980, 529 N.Y.S.2d 67, 524 N.E.2d 421.
Although the Court is unaware of cases holding the NYSHRL and NYCHRL to be
Nothing in the relevant statutes, the case law or the record in this case gives the Court pause in concluding that the principles that courts have repeatedly applied to the Port Authority in this arena may be applied equally to the Waterfront Commission.
Novak's NYSHRL and NYCHRL claims are therefore dismissed as to the Waterfront Commission, and by logical extension, the individual Defendants. See Evans v. Port Auth., 192 F.Supp.2d 247, 281-82 (S.D.N.Y.2002) ("Defendants are correct that the respective antidiscrimination laws of New York and New Jersey do not apply to the Authority because it is an agency created by an interstate compact. A fortiori, they do not apply to the Authority's agents acting in their capacities as such.").
As explained above at footnote seven, the Court declines to exercise supplemental jurisdiction over Novak's state common law claims. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) ("[I]f the federal law claims are dismissed before trial ... the state claims should be dismissed as well.").
For the reasons stated above, Defendants' motion is granted in its entirety. The Clerk of Court is directed to close item number thirty-nine (39) on the docket and to terminate this action.
SO ORDERED.
