NONI v. County of Chautauqua

511 F. Supp. 2d 355 (2007)

Brande M. NONI, Plaintiff,
v.
COUNTY OF CHAUTAUQUA, et al., Defendants.

No. 03-CV-600A.

United States District Court, W.D. New York.

September 13, 2007.

David Rodriguez, Esq., Buffalo, New York, Attorney for Plaintiff.

Goldberg Segalla LLP, Julie P. Apter, of Counsel, Buffalo, New York, Attorneys for Defendants.

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on September 15, 2003. On November 30, 2004, defendants filed a motion for summary judgment. On March 7, 2007, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendants' motion for summary judgment should be granted.

Plaintiff filed objections to the Report and Recommendation on April 13, 2007 and the defendants filed a response. Oral argument on the objections was held on May 22, 2007.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

In her objections, plaintiff argues that the Magistrate Judge erred by failing to consider the EEOC's determination letter as evidence of discrimination. Although EEOC determination letters fall within the hearsay exemption under Fed. R.Evid. 803(8)(C), see Chandler v. Roudebush, 425 U.S. 840, 863, n. 39, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976); Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 64 (2d Cir.1998), their admissibility is still subject to a finding that the probative value of the determination is not substantially outweighed by a danger of unfair prejudice. See Fed.R.Evid. 403. Indeed, the Second Circuit has made clear that "the fact that evidence is within an exception to the hearsay rule does not by itself make it admissible per se." Paolitto, 151 F.3d at 64.

In this case, the EEOC issued a determination letter finding "[d]irect evidence. . . . revealing that [the County] retaliated against the [plaintiff] . . . by providing unfavorable references to perspective employers . . ." The EEOC does not indicate the "evidence" supporting its determination. Because the EEOC's determination letter contains only conclusory findings that fail to describe the nature of its investigation or the basis of for its conclusions, it is of little probative value and is likely to be found inadmissible at trial. Id.

The Magistrate Judge correctly determined that the plaintiff had failed to present sufficient admissible evidence of retaliation. Specifically, the plaintiff failed to show that the defendants actually gave a negative employment reference to any perspective employer. The evidence presented showed only that the defendants spoke negatively about the plaintiff to two individuals posing as perspective employers. Plaintiff has not provided any affidavits or other admissible evidence indicating that a perspective employer ever contacted the County to ask for a reference for the plaintiff.^[1] Plaintiff would have the Court infer that perspective employers called simply based upon the fact that she had applied for many positions but has never received an interview. As the Magistrate Judge correctly noted, the record does not indicate that any of these business ever invited plaintiff to interview, spoke to her about possible employment, or otherwise seriously considered her for a position and then contacted the defendants for a reference.

In Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir.2005), the Second Circuit held that to state an employment discrimination claim based upon a negative employment reference, the employee was not required to provide a sworn affidavit from the prospective employer attributing its decision to deny employment to the negative reference. However, unlike the plaintiff in this case, plaintiff Jute had actually interviewed for a specific position and received an offer that was subsequently withdrawn after the negative employment reference. The Court found that based upon those facts, a jury could infer that the negative job reference caused the company to rescind its offer. Here, in contrast, there is no evidence that the plaintiff was interviewed or seriously considered for any open positions to which she applied, nor is there evidence that a prospective employer actually contacted the defendants and obtained a negative reference. Absent admissible evidence supporting her claim that a negative job reference was actually given to a perspective employer, the Court finds that summary judgment must be granted.

Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motion for summary judgment is granted. The Clerk of Court shall take all steps necessary to close the case.

SO ORDERED.

REPORT and RECOMMENDATION

LESLIE G. FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on September 15, 2003 for all pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motion for summary judgment (Doc. No. 13), filed November 30, 2004.

BACKGROUND

Plaintiff commenced this action on August 6, 2003, against Defendants, including her former employer Chautauqua County Home ("the Home"), an agency of Defendant Chautauqua County ("the County"), and the Home's Food Service Director Ross DiBiase ("DiBiase") (together, "Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and New York Human Rights Law, New York Executive Law § 290 et seq. In particular, Plaintiff claims that DiBiase retaliated against Plaintiff, who had previously brought an employment discrimination action against Defendants, by informing potential employers seeking references and recommendations about Plaintiffs lawsuit and describing Plaintiffs work habits in a negative manner. Defendants' answer (Doc. No. 3) was filed on September 9, 2003.

On November 30, 2004, Defendants filed the instant motion for summary judgment (Doc. No. 13) ("Defendants' Motion"). The motion is supported by the attached Affidavit of Julie P. Apter, Esq. ("Apter Affidavit"), Exhibits A through G ("Defendants' Exh(s) ___"), and Defendants' Statement of Material Facts Not In Dispute, as well as Defendants' Memorandum of Law (Doc. No. 15) ("Defendants' Memorandum").^[1] In opposition to summary judgment, Plaintiff filed, on January 31, 2005, a Memorandum of Law (Doc. No. 18) ("Plaintiffs Memorandum"), and, on February 1, 2005, the Affirmation of David Rodriguez, Esq. (Doc. No. 21) ("Rodriguez Affirmation"), Plaintiffs Statement of Undisputed Material Facts (Doc. No. 23) ("Plaintiffs Statement of Facts")^[2], attached to which is the Affidavit of Daniel Travis ("Travis Affidavit"), and a document entitled "Continuation of Exhibits" (Doc. No. 25), attached to which are five separate exhibits ("Plaintiffs Exh(s) ___"). In further support of summary judgment, Defendants filed on February 17, 2005 an Amended Statement of Material Facts Not in Dispute (Doc. No. 28) ("Defendants' Statement of Facts"), with attached exhibits, and, on February 30, 2005, the Reply Affidavit of Julie P. Apter, Esq. (Doc. No. 30) ("Apter Reply Affidavit").^[3] Oral argument was deemed unnecessary.

Based on the following, Defendants' motion for summary judgment should be GRANTED. Alternatively, Plaintiff should be limited to seeking only compensatory damages.

FACTS^[4]

On August 31, 1995, Plaintiff, Brande M. Noni ("Plaintiff'), commenced employment as a dietary aide with Defendant Chautauqua County Home ("the Home"), an agency of Defendant County of Chautauqua ("County"). Plaintiffs reported to Wanda Hall ("Hall") and Tim Odelbraski ("Odelbraski"). As a dietary aide, Plaintiff engaged in general food preparation, serving and cleaning. Beginning in 1997, Plaintiff was assigned for a period of time the task of buttering bread for the noon-time meals served at the Home. While assigned to the bread buttering task, Plaintiff claims Odelbraski often referred to Plaintiff as "bread and butter Barbie," which Plaintiff interpreted as an attempt to belittle her based on her gender. Plaintiff maintains that when she asked Odelbraski to stop referring to her as "bread and butter Barbie," Odelbraski just laughed, and when Plaintiff complained of Odelbraski's conduct to Hall, Hall advised Plaintiff to ignore it. According to Plaintiff, Odelbraski's use of the offensive moniker continued until August 13, 2000, when Plaintiff left her employment with the Home.

In an internal Memorandum dated August 14, 2000, Defendant Ross DiBiase ("DiBiase"), Home's Food Service Director, described to the Home's Administrator Tim Hellwig ("Hellwig") a variety of employment issues the Home's food services department staff was experiencing with Plaintiff, including Plaintiffs repeated failure to report for work as scheduled, inability to get along with co-workers, refusal to perform assigned tasks, and walking off the job. At that time, DiBiase wished to terminate Plaintiffs employment, but Hellwig instructed DiBiase to provide Plaintiff with an opportunity to work out her employment issues. Despite being advised, in writing, by DiBiase that Plaintiff was scheduled to work in September and October, 2000, Plaintiff never again reported for work at the Home. Defendants kept Plaintiff on the payroll until October 2000, on the assumption that Plaintiff would eventually return to work.

On October 23, 2001, Plaintiff commenced, pursuant to 42 U.S.C. § 1983, a civil rights action in this court, Noni v. County of Chautauqua, 01-CV-0745E(Sr) ("Noni I"), against the Home and the County asserting she was constructively discharged from her employment with the Home when constant sexual harassment resulted in a hostile work environment. In that case, Plaintiff also alleged she suffered retaliation when she denied a co-worker's sexual advances. On August 5, 2003, Noni I was dismissed sua sponte for lack of subject matter jurisdiction based on Plaintiffs failure to allege a predicate violation of federal law. Noni I, August 5, 2003 Order (Doc. No. 24) at 2-3.

On August 6, 2003, Plaintiff filed the instant action ("Noni II"), alleging that since terminating her employment at the Home, Defendant DiBiase has "embarked on a pattern of continuous discriminatory retaliation against plaintiff for her complaints of discrimination by making adverse comments to potential employers." Complaint ¶ 15. In particular, Plaintiff maintains that between August 13, 2000 and September 9, 2002, DiBiase made negative comments to persons seeking job references as to Plaintiff. Id. ¶ 17-21. Specifically, DiBiase allegedly revealed that Plaintiff had previously filed an employment discrimination action against the Home and the County, Complaint ¶ 17, and made negative comments to the inquiries, including that Plaintiff "was nothing but trouble," id. ¶ 18, "[i]f I was in your shoes, I would not hire her," id. ¶ 19, "she would not be an asset to your company," id. ¶ 20, and that DiBiase would not recommend Plaintiff for employment, id. ¶ 21. Plaintiff attributes the fact that she has applied for employment with 36 different potential employers, but has yet to receive a single employment offer, to DiBiase's alleged negative job references. Seeking to substantiate her suspicions, Plaintiff asked a friend, Daniel Travis ("Travis"), to telephone Defendants posing as a potential employer, and request a personal reference about Plaintiff.

On August 2, 2002, Travis telephoned the Home and asked to speak with DiBiase about a reference for Plaintiff. Travis Affidavit ¶ 3. According to Travis, DiBiase, in response to Travis's reference request, made several negative statements regarding Plaintiff, including that the Home "had nothing but trouble with [Plaintiff]." Id. ¶ 6. DiBiase explained that Plaintiff would arrive at work "impeccably clean," but that "the minute she got a spot on anything she would leave the tray line, she'd leave the dish room, you know she didn't care and her priority was herself and her appearance. She wouldn't do cleaning and stuff." Id. DiBiase further revealed that after leaving her dietary aide job with the Home, Plaintiff sued the Home and the County for harassment. Id. ¶¶ 8-9. In that conversation, DiBiase explained to Travis that Plaintiff was never a full-time employee at the Home but, rather, worked as a "sub" and did not have a permanent schedule. Id. ¶¶ 5 and 12. According to DiBiase, 75% of Plaintiffs work hours were "prescheduled to replace dietary staff who was on vacation, personal time, holiday time, etc.," id. ¶ 13, Plaintiffs work attendance was described as "very poor," id. ¶ 15, and DiBiase commented that he did not believe Plaintiff would be an asset to Travis's facility. Id. ¶¶ 10, 20. Additionally, DiBiase stated that there were "a lot of problems with [Plaintiffs] interaction of [sic] other employees." Id. ¶ 11.

Upon learning of the statements DiBiase allegedly made to Travis, Plaintiff hired a private investigator, Paul H. Lawrence ("P.I. Lawrence" or "Lawrence") of Empire Investigations "to either confirm or debunk the theory that defendant DiBiase was intentionally retaliating against Plaintiff by mentioning her discrimination lawsuit against defendant in job reference requests." Plaintiffs Statement of Facts ¶ 7. On August 16, 2002, posing as a potential employer, P.I. Lawrence telephoned the Home and spoke with DiBiase regarding Plaintiffs employment with the Home. P.I. Lawrence's Investigation Report, Plaintiff's Exh. B. According to Lawrence, DiBiase's comments throughout their telephone conversation were essentially the same as those comments reported by Travis, and included such comments as Plaintiff did what she wanted and did not take orders, and confirmed that Plaintiff had filed a harassment claim against the Home and the County. Id. DiBiase also advised Lawrence to "stay away from [Plaintiff] like the plague," and that Plaintiff was "nothing but trouble." Id.

On September 9, 2002, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging retaliation by Defendants for her earlier employment discrimination complaints and for bringing her earlier § 1983 claim, Noni I. On September 17, 2002, the EEOC acknowledged receipt of Plaintiffs claim and commenced an investigation. On March 5, 2003, the EEOC issued its determination, finding direct evidence that Defendants had retaliated against Plaintiff for her earlier complaints by providing unfavorable references to prospective employers. March 5, 2003 EEOC Determination Letter, Plaintiffs Exh. E.

DISCUSSION

Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The court is required to construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999) (citing Anderson, supra, 477 U.S. at 255, 106 S. Ct. 2505). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, supra, 477 U.S. at 322, 106 S. Ct. 2548; see Anderson, supra, at 247-48, 106 S. Ct. 2505 ("summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). In assessing a record to determine whether there is genuine issue of material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. Rattner, supra, 930 F.2d at 209.

"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be `made and supported as provided in this rule [FRCP 56],' and Rule 56(e) therefore requires the non-moving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, supra, 477 U.S. at 323-24, 106 S. Ct. 2548 (1986) (quoting Fed.R.Civ.P. 56). Thus, "as to issues on which the nonmoving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the nonmoving party's case." Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir.1998). Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995).

Although a summary judgment motion may be made with or without supporting affidavits, if affidavits are submitted, they "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(a). Rule 56 further provides that

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed.R.Civ.P. 56(e).

"However, if the motion for summary judgment is not made and supported as provided in Rule 56, the Rule does not impose on the party opposing summary judgment an obligation to come forward with affidavits or other admissible evidence of his own." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir.2000) (reversing granting of summary judgment in favor of defendant because defendant failed to allege factual basis for assertions contained in defendant's affidavit such that plaintiff, as the party opposing summary judgment, was not required to adduce evidence to defeat summary judgment and the "self-serving" nature of plaintiff's affidavit statements went to the weight of the statements, rather than to their admissibility).

In the instant case, Defendants argue in support of summary judgment that Plaintiff is unable to establish the requisite causal connection between DiBiase's alleged unfavorable comments regarding Plaintiffs employment at the Home, and Plaintiffs inability to secure new employment since leaving her dietary aide position at the Home. Defendants' Memorandum at 12-13 (citing Weinstock v. Columbia University, 224 F.3d 33 (2d Cir.2000)). Defendants also maintain that insofar as Plaintiff seeks in this § 1983 action to recover consequential damages, such damages are not available from municipal defendants, including the County, the Home and DiBiase insofar as DiBiase is sued in his official capacity. Id. at 5-7. In opposition to summary judgment, Plaintiff argues that the requisite causal connection between Plaintiffs filing of her § 1983 action, Noni I, and Plaintiffs inability to secure other employment, is established by the statements DiBiase made in response to the requests of Travis and P.I. Lawrence, posing as potential employers, regarding Plaintiffs work ethics and earlier employment discrimination action. Plaintiffs Memorandum at 3-5. In further support of summary judgment, Defendants assert that the evidence Plaintiff submitted in opposition to summary judgment is not in admissible form and, as such, is insufficient to defeat summary judgment. Apter Reply Affidavit ¶¶ 6-7. Alternatively, Defendants maintain such information fails to establish the requisite causal connection to support Plaintiffs retaliation claim. Id. ¶¶ 8-15.

As relevant to the instant case, Title VII forbids any employer from

discriminating against any of [its] employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a).

Such retaliation claims under Title VII are evaluated under a three-step burden-shifting analysis. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005) (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998)). See also Donato v. Plainview — Old Bethpage Central School District, 96 F.3d 623, 633 (2d Cir.1996) (stating Title VII retaliation claims "are analyzed under the three-step burden shifting approach originally explained in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)."). Further, retaliation claims under New York's Human Rights Law "are generally governed by the same standards as federal claims under Title VII." Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 609-610 (2d Cir.2006) (citing cases and granting summary judgment dismissing plaintiffs retaliation claim under New York Human Rights Law for failure to establish a triable issue on federal retaliation claim under Title VII).

To establish a prima facie case of retaliatory discharge, a plaintiff must demonstrate "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.'" Jute, supra, at 173 (citing McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir.2001)). A Title VII plaintiffs burden of proof to survive a summary judgment motion at the prima facie stage is de minimis. Jute, supra (citing Woodman v. WWOR-TV, 411 F.3d 69, 76 (2d Cir.2005)). "In determining whether this initial burden is satisfied in a Title VII retaliation claim, the court's role in evaluating a summary judgment request is to determine only whether proffered admissible, evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive." Jute, supra (citing Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987)).

If the plaintiff meets the initial burden of establishing a prima facie case of retaliation in violation of Title VII, then a presumption of such retaliation arises. Jute, supra. The burden then shifts to the defendant employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. Id. (citing Quinn, supra, at 768). Provided the employer meets its burden, the presumption of retaliation dissipates and the burden of proof shifts back to the plaintiff to show that the employer's proffered reason was a pretext for retaliation, and that the employer's true motivation was unlawful retaliation. Donato, supra, at 634. In the instant case, Plaintiff has failed to establish a prima facie case of retaliation because Plaintiff is unable to demonstrate the requisite causal connection between Defendants' alleged negative employment references and her inability to secure employment.

Plaintiff has met three of the four elements necessary to establish a prima facie case of Title VII retaliation. In particular, Plaintiff has established that she participated in a protected activity when she complained to Hall, her supervisor at the Home, of Odelbraski's repeated use of an offensive nickname, i.e., "bread and butter Barbie," a complaint which later was the basis for Plaintiff's § 1983 action, Noni I, against Defendants County and the Home. It is not clear from the record whether Plaintiff ever filed a charge with the EEOC regarding the alleged employment discrimination prior to commencing Noni I, which was brought pursuant to § 1983 and which was subsequently dismissed sua sponte for lack of subject matter jurisdiction and failure to state a claim given Plaintiff failed to allege a predicate violation of federal law, Noni I, August 5, 2003 Order (Doc. No. 24) at 2-3. Nevertheless, "the law is clear that opposition to a Title VII violation need `not rise to the level of a formal complaint in order to receive statutory protection, [and] this notion of `opposition' includes activities such as `making complaints to management. . . .'" Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.2000) (quoting Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990)). Thus, Plaintiff's failure to exhaust administrative remedies with regard to the underlying predicate action does not remove Plaintiff's complaints to Hall and the filing of the § 1983 action from Title VII's protection. Nor does the fact that Noni I was dismissed for lack of subject matter jurisdiction have any effect on the validity of Plaintiffs present retaliation claim because a plaintiff need not establish that the conduct she opposed was actually a violation of the statute so long as she can establish that she possessed a "`good faith, reasonable belief that the underlying challenged actions of the employer violated that law.'" Quinn, supra, at 769 (quoting Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). The first element of Plaintiffs retaliation claims is therefore established.

As to the second element, the fact that Defendants County and the Home were also named as defendants in Noni I, an action in which Defendants' appeared and defended, establishes Defendants' awareness of Plaintiffs participation in activity within Title VII's protection. See Jute, supra, at 175-76 (holding defendant employer knew plaintiff had engaged in activity protected under Title VII where plaintiff was identified as a potential witness by a co-worker plaintiff in a deposition given in a prior Title VII employment discrimination action brought by the co-worker against the employer). See also Collette v. St. Luke's Roosevelt Hosp., 132 F. Supp. 2d 256, 276 (S.D.N.Y.2001) (commenting that where plaintiff made employment discrimination complaints directly to the employer, rather than to a government agency, "there is no question" that the employer was aware of the complaints). The second element of Plaintiffs prima facie case of retaliation in violation of Title VII is thus established.

Further, it is well-settled that a negative employment reference given to a potential employer seeking to hire the defendant employer's former employee qualifies as an adverse employment action. Jute, supra, at 178-79 (observing that negative job reference that adversely affects a plaintiffs ability to secure employment constitutes an adverse employment action). See also Pantchenko v. C.B. Dolge Company, Inc., 581 F.2d 1052, 1055 (2d Cir.1978) (although no longer employed by defendant, plaintiff remained defendant's employee for purposes of maintaining Title VII retaliation action alleging that after plaintiff left defendant's employment, defendant refused to provide letter of recommendation and made disparaging and false statements to prospective employers to retaliate for plaintiffs filing of EEOC claim). In fact, the Second Circuit has suggested that, "as a matter of law a former employer's giving an entirely neutral reference to an inquiring prospective employer, leading the prospective employer to decline to hire the applicant, can constitute an adverse employment action." Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir.1999) (analyzing retaliation claim under Americans with Disabilities Act).

In the instant case, Plaintiff attempts to demonstrate that DiBiase provided negative references to potential employers by submitting statements from two individuals, Travis and P.I. Lawrence, who were not potential employers but who, at Plaintiff s request, posed as potential employers in an attempt to discover what type of references Defendants were likely to provide to an actual potential employer of Plaintiff. As such, Plaintiff cannot rely on the Travis Affidavit or P.I. Lawrence's Investigation Report to establish that but for a positive employment reference from Defendants, a potential employer would have hired Plaintiff. Further, as hearsay, neither the Travis Affidavit nor P.I. Lawrence's Investigation Report constitutes admissible evidence as required to defeat summary judgment. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004) ("Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertion that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial.") (citing Sarno, supra, at 160 (requiring elements of prima facie case of employment discrimination be supported by "legally sufficient evidence")).

In particular, the Travis Affidavit contains only hearsay statements given that Travis recounts statements supposedly made by DiBiase and proffered for the truth of the matter asserted. Fed.R.Evid. 801(c). P.I. Lawrence's Investigation Report is not a sworn statement and, as such, does not qualify as admissible evidence. Fed.R.Civ.P. 56(e) (requiring sworn statements in opposing summary judgment). Significantly, Plaintiff fails to point to any exception to the hearsay rule available under the Federal Rules of Evidence to support the admissibility of the Travis Affidavit or the P.I. Lawrence Investigation. Report Plaintiff filed in opposition to summary judgment.

Moreover, even assuming, arguendo, that Plaintiffs proffered evidence could be admitted to establish circumstantial evidence that Defendants were providing negative employment references to prospective employers considering hiring Plaintiff, Jute, supra, at 179 (holding circumstantial evidence that defendant former employer was providing negative employment reference to plaintiffs prospective employers was sufficient to defeat summary judgment on the causation element of prima facie case), Plaintiff still fails to establish the requisite causal connection between the negative references and loss of prospective employment because there is no evidence in the record that any of the employers with whom Plaintiff allegedly sought employment ever actually considered Plaintiff for employment.

Specifically, although Plaintiff provides the names and addresses of 36 business entities with whom Plaintiff allegedly sought employment after leaving the Home's employ, Plaintiffs Response to Defendants' Interrogatory No. 7 ("Plaintiffs Response to Interrogatory No. 7"), Defendants' Exh. D, the record is devoid of any evidence that such business actually had open employment positions for which Plaintiff was qualified. Nor does the record indicate that any of the 36 businesses ever invited Plaintiff to interview for or otherwise spoke with Plaintiff about possible employment, or seriously considered hiring Plaintiff before contacting Defendants for an employment reference. Rather, a review of Plaintiffs Response to Interrogatory No. 7 shows that despite listing 36 different businesses with which Plaintiff maintains she sought employment, Plaintiff failed to identify, as Interrogatory No. 7 requested, the specific job titles, duties, salaries and locations of the positions sought with any of these possible employers. Id. Plaintiff also failed to indicate whether she submitted a resume, was interviewed for any position, or whether she took any written or oral tests in connection with the applications. Id. Significantly, Plaintiff has not even proffered evidence as to what information she provided the 36 businesses regarding her employment at the Home, or any contact information for the Home should an employment reference concerning Plaintiff be sought. See Plaintiffs Deposition Transcript, Defendants' Exh. E, at 23. Nor has Plaintiff inquired of any of the businesses as to why she was not contacted for employment. Id. at 43. Indeed, Plaintiff admitted during her deposition that she never interviewed for any of the employment positions for which she contends she applied after leaving the Home's employ, and that none of the employers ever advised Plaintiff as to why Plaintiff was not interviewed for the various positions. Plaintiffs Deposition Transcript, Defendants' Exh. E, at 43, 52-53.

Moreover, Plaintiff does not dispute Defendants' contentions that Plaintiff was not terminated from but, rather, voluntarily left her employment at the Home. In particular, DiBiase asserts that Plaintiff "voluntarily terminated her employment with the County of Chautauqua on October 10, 2000." DiBiase Affidavit ¶ 4. According to DiBiase, throughout Plaintiffs employment at the Home, "there were numerous production and safety problem issues which were involved with [Plaintiff's] employment," for which Plaintiff was given numerous opportunities to correct. Id. ¶ 5. For example, following a meeting with Plaintiff in August 2000 regarding Plaintiffs work performance, including Plaintiffs failure to make herself available when called to work, Plaintiff continued to fail to respond to Defendants' efforts to schedule Plaintiff for work in September and October 2000. Id. ¶¶ 5, 18. DiBiase maintains that Plaintiffs continued failure to report to work as, scheduled caused DiBiase to recommend terminating Plaintiffs employment, but that Home Administrator Tim Hellwig instructed DiBiase to provide Plaintiff with the opportunity to resolve her employment issues. Id. at 21 (citing DiBiase's August 14, 2000 Internal Memorandum to Administrator Hellwig, Defendants' Exh. E, describing a variety of employment issues the Home's food services department staff was experiencing with Plaintiff, including Plaintiffs repeated failure to report for work as scheduled, inability to get along with co-workers, refusal to perform assigned tasks, and walking off the job). DiBiase's assertions regarding Plaintiffs work habits are corroborated by copies of portions of Plaintiffs personnel file submitted by Defendants in support of summary judgment. See Defendants' Exhs. A through E. Significantly, Plaintiff has not challenged the accuracy of these statements and exhibits.

As such, the record is devoid of any issue of fact from which a reasonable jury could find Plaintiffs failure to secure employment since leaving her position at the Home could be attributed to Defendants' providing negative employment references to Travis and P.I. Lawrence, including mentioning Plaintiffs earlier § 1983 action, Noni I, against the County and the Home. Nor is there any evidence that any alleged negative employment references were made to retaliate against Plaintiff for complaining to management and commencing her earlier litigation, Noni I. Summary judgment should thus be GRANTED in favor of Defendants.

Alternatively, Defendants maintain that insofar as the County is a municipal entity, the Home is an agency of the County, and DiBiase is sued in his official capacity as a County employee, punitive damages are unavailable and Plaintiff may seek only compensatory damages. Defendants' Memorandum at 5-7. Plaintiff has not responded to this argument.

It is settled that punitive damages may not be awarded against a municipality under § 1983. DiSorbo v. Hoy, 343 F.3d 172, 182 (2d Cir.2003) (citing Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). As such, should Chief Judge Arcara disagree with the primary recommendation to grant summary judgment in favor of Defendants based on Plaintiffs failure to establish the requisite causal connection between the alleged unfavorable employment references and Plaintiffs participation in activity protected under Title VII, then Plaintiff should be limited to seeking only compensatory damages.

CONCLUSION

Based on the foregoing, Defendants' motion for summary judgment (Doc. No. 13) should be GRANTED; the Clerk of the Court should be directed to close the case. Alternatively, Plaintiff should be limited to seeking only compensatory damages.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir.1988).

Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendants.

SO ORDERED.

DATED: March 7, 2007, Buffalo, New York.

NOTES

[1] Plaintiff also claims that her uncle contacted the County as a perspective employer and was given a negative reference for the plaintiff. Plaintiff's statements in this regard are hearsay. Plaintiff has not presented an affidavit from her uncle supporting her allegations that he called the County to request an employment reference for the plaintiff and that a negative reference was in fact given. As the Magistrate Judge correctly noted, the plaintiff cannot rely upon her unsupported hearsay assertions to defeat the defendant's motion for summary judgment.

[1] Originally filed on November 30, 2004 as Doc. No. 14, to correct an electronic filing error, Defendants' Memorandum was refiled on December 1, 2004, as Doc. No. 15.

[2] Plaintiff's Statement of Facts was originally filed on February 1, 2005 as Doc. No. 19 without the attached Travis Affidavit.

[3] Originally filed on February 17, 2005 as Doc. No. 26, to correct an electronic filing error, the Apter Reply Affidavit was refiled on February 17, 2005 as Doc. No. 30.

[4] Taken from the pleadings and motion papers filed in this action.