Upon the foregoing cited papers and after oral argument on July 17, 2024, pursuant to CPLR § 3212(b), Defendant Joan Indart-Etienne's Motion for Summary Judgment and dismissing the April 28, 2016 verified complaint is GRANTED.

Plaintiff Collins is a special education teacher and a former assistant principal employed by the New York City Department of Education ^[FN1] ("DOE"). She alleges that during her short tenure as an assistant principal under Defendant Etienne's supervision between November 2011 and June 2012 ^[FN2] , she was subject to adverse employment actions. Such adverse actions included threats of an unsatisfactory annual rating, constructive discharge, poor references, effective demotion, and retaliatory job assignments ^[FN3] . Ms. Collins claims she was subjected to such adverse employment action because she refused to submit to Defendant Etienne's "implicit" [*2]instructions to discriminate against certain teachers based on their age by issuing them unsatisfactory ratings following formal and informal classroom observations of their classes ^[FN4] .

Collins originally commenced an action in the United States District Court for the Southern District of New York ("District Court") on June 26, 2015 ^[FN5] ("Prior Action") against the DOE, the City of New York, and Defendant Etienne (among other individuals) (collectively "Original Defendants") asserting violations of various federal and state statutes, as well as the New York City Human Rights Law, Administrative Code § 8-101 et seq. ("City HRL"). In the Prior Action, the Original Defendants moved to dismiss the complaint for failure to state a claim. By Memorandum Opinion and Order dated January 11, 2016 ^[FN6] , in relevant part, the District Court denied dismissal of: (1) a portion of Collins's federal claim under § 504 of the Rehabilitation Act of 1973, 29 USC § 794 et seq. ("Rehabilitation Act claim"); and (2) the entirety of Collins's City HRL claim against Defendant Etienne ^[FN7] . At Plaintiff's request, on February 16, 2016, the District Court granted dismissal of her Rehabilitation Act claim, with the effect that the District Court relinquished supplemental jurisdiction over her City HRL claim without prejudice to refile such claim in state court. See Order dated February 16, 2016 ^[FN8] (Prior Action, Docket # 31).

On April 28, 2016, Plaintiff commenced the instant action raising the identical City HRL claim against Defendant raised in the Prior Action; namely, that Etienne retaliated against her for complaining about and/or refusing to engage in Etienne's discriminatory demands against teachers because of their age ^[FN9] . In lieu of filing an answer to said complaint, pursuant to CPLR § 3211(a)(7), Defendant moved for dismissal of the City HRL claim for failure to state a cause of action. By Decision/Order dated February 18, 2018, the Court (Levine, J.) denied that portion of Defendant's motion ("Prior Order")^[FN10] . In relevant part, the Prior Order held that Plaintiff sufficiently alleged in her complaint all four elements of the statutory retaliation claim under the [*3]City HRL ^[FN11] . However, the Prior Order cautioned that the Court's "function of a motion to dismiss [was] merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Collins, 59 Misc 3d at 1046 (internal quotation marks omitted).

After discovery was completed and a note of issue was filed, Defendant timely moved for summary judgment dismissing Plaintiff's retaliation claim under the City HRL. Plaintiff opposed it and the Court heard oral argument on July 17, 2024.

"[T]he law of the case doctrine is inapplicable where, as here, a summary judgment motion follows [the denial of] a motion to dismiss pursuant to CPLR [§] 3211(a)(7) for failure to state a cause of action." Borawski v Abulafia, 140 AD3d 817, 817-818 (2d Dept 2016); see Pentacon, LLC v 422 Knickerbocker, LLC, 165 AD3d 829, 830 (2d Dept 2018); 347 Cent. Park Assoc., LLC v Pine Top Assoc., LLC, 144 AD3d 785 (2d Dept 2016), lv denied 29 NY3d 909 (2017). The denial of "the prior motion to dismiss was based on the facts and law presented by the parties in that procedural posture, and no more." 191 Chrystie LLC v Ledoux, 82 AD3d 681, 682 (1st Dept 2011). Accordingly, the Prior Order's denial of Defendant's pre-answer motion to dismiss is not binding on the Court at the summary-judgment stage of litigation.

"[T]o make out an unlawful retaliation claim under the [City HRL], a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the [City HRL], (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct." Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235-1236 (2d Dept 2019) (internal quotation marks omitted); Thompson v City of New York, 83 Misc 3d 1213(A), 2024 NY Slip Op. 50701(U), *7 (Sup Ct, Kings County 2024).

"To establish [his or her] entitlement to summary judgment in a retaliation case [under the City HRL], a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual." Reichman v City of New York, 179 AD3d 1115, 1119-1120 (2d Dept 2020) (internal quotation marks omitted), lv denied 36 NY3d 904 (2021). "Although a plaintiff is not required to prove his [or her] claim to defeat summary judgment, once the defendant has satisfied [his or her] initial burden, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact." Brightman v Prison Health Serv., Inc., 108 AD3d 739, 741 (2d Dept 2013) (internal quotation marks omitted and citations omitted).

Here, even assuming that Plaintiff engaged in protected activity under the City HRL, Defendant made a prima facie showing that Plaintiff failed to raise a triable issue of fact as to whether Defendant was aware of such activity. Four principal reasons support the Court's finding in this regard.

First, Plaintiff's pretrial testimony ^[FN12] gives no indication that she raised with Defendant her belief that Etienne's references to "rubber room"^[FN13] teachers were age-discriminatory statements, rather than the facially age-neutral comments on the poor quality of their pedagogy. See Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 205 (1st Dept 2015). As the First Judicial Department observed in Cadet-Legos:

"The most significant language in question [that is complained of] is the colloquial expression, 'A leopard does not change its spots.' The record contains two emails in which plaintiff's supervisors used some variation of this expression....The racially derogatory meaning [that] the expression 'a leopard does not change its spots' may have had more than 100 years ago is too attenuated, without more, to permit a discriminatory meaning to be imputed to a speaker whenever the expression is uttered today.

In any event, on the evidence in the record, defendant's use of the language in reference to plaintiff is only consistent with the view, frequently expressed by defendant's employees and having no apparent reference to race whatsoever, that plaintiff was someone who, when faced with criticism or discipline, would reflexively argue that she was being treated unfairly or unjustly. A jury could not reasonably conclude that plaintiff's supervisors intended to employ the phrase in a racially charged manner." Cadet-Legros, 135 AD3d at 205-206 (1st Dept 2015) (footnote omitted; emphasis added).

See also Marseille v Mount Sinai Hosp., 2022 WL 14700981, *2 (2d Cir 2022) ("The term 'aggressive'...is a facially race-neutral term, and [plaintiff] has failed to offer evidence that could lead a reasonable jury to conclude that the statement in context actually reflected the speaker's use of this language in a racially coded manner.") (internal quotation marks omitted and alterations omitted)^[FN14] .

Second, nothing in the record indicates that Defendant was aware that Plaintiff's assignment of satisfactory ratings to low-performing teachers was made in opposition to [*4]Defendant's purported ongoing campaign of age discrimination against them. Stated another way, Plaintiff's silent refusal to follow Defendant's implicit directive to issue unsatisfactory ratings to low-performing teachers was not a form of open protest that would have put Etienne on notice that Collins was refusing Etienne's orders because they were discriminatory. See Khazin v City of New York, 2024 WL 1345739, *6 (ED NY 2024), appeal filed (2d Cir. May 8, 2024).

Third, the record fails to demonstrate that Defendant had a history of engaging in discriminatory conduct as to put Etienne on notice that Collins' silent refusal to follow her instructions to assign unsatisfactory ratings to low-performing teachers constituted an informal protest against age discrimination. See Khazin, 2024 WL 1345739, *6 ^[FN15] .

Fourth and finally, Plaintiff's complaints to Defendant during the annual review were entirely devoted to the validity of Plaintiff's annual review report instead of the validity of her underlying teacher ratings ^[FN16] . More specifically, during said annual review, Plaintiff complained to Defendant that Etienne's report: (1) failed to consider all the teacher observation reports that Collins filled out ^[FN17] ; (2) unjustly criticized Collins for failing to perform tasks for which she was [*5]not responsible ^[FN18] ; and (3) faulted Collins for matters with which she should not have been concerned ^[FN19] . See Diluglio v Liberty Mut. Group, Inc., 230 AD3d 643, 645-646 (2d Dept 2024)^[FN20] .

In opposition to Etienne's prima facie showing, Collins failed to raise a triable issue of fact. See Sanderson-Burgess, 173 AD3d at 1236; Brightman, 108 AD3d at 741-742. Collins' post-deposition affidavit dated June 7, 2024 ^[FN21] , presented "feigned issues of fact designed to avoid the consequences of her earlier deposition testimony." Tibbetts v Pelham Union Free School Dist., 143 AD3d 806, 808 (2d Dept 2016); see Kavenaght v 498 Seventh, LLC, — AD3d &mdash, 2024 NY Slip Op 04765, *1 (2d Dept 2024); Singh v 180 Varick, LLC, 203 AD3d 1194, 1196 (2d Dept 2022).

More specifically, Plaintiff's post-deposition affidavit consists of 65 single-spaced paragraphs spanning seven pages. It stretched her actual pretrial testimony far beyond its breaking point by drawing sinister "implications" of discriminatory motive from Defendant's facially age-neutral and undisputed true statements that incompetent (or, in the DOE parlance, "rubber room") teachers — irrespective of their age — should not be working with students, as more fully reproduced in the margin ^[FN22] .

Ultimately, "[t]he court's role is to prevent unlawful [employment] practices, not to act as [*6]a superpersonnel department that second guesses employers' business judgments." Alfano v Costello, 294 F3d 365, 377 (2d Cir 2002) (internal quotation marks and alterations omitted). "Significant harms must be distinguished from ordinary tribulations of the workplace. Rude treatment by coworkers, callous behavior and harsh criticisms by one's superiors, or differences of opinion and personality conflicts with one's supervisor, are not actionable as either discriminatory, retaliatory, or impermissibly hostile under...[the City HRL], in the absence (as relevant here) of the underlying [age-discriminatory] motives." McIntosh v City of New York, 79 Misc 3d 1231(A), 2023 NY Slip Op. 50761(U), *4 (Sup Ct, Kings County 2023) (emphasis omitted).

Accordingly, Plaintiff's complaint is dismissed in its entirety with prejudice, and without costs and disbursements.

This constitutes the Decision, Order, and Judgment of the Court.