McGrath v. Fire Department of the City of New York

• Court: District Court, E.D. New York
• Decided: September 23, 2025
• Docket: 1:17-cv-01461
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK MICHAEL MCGRATH, MEMORANDUM & ORDER Plaintiff, 17-CV-1461 (NGG) (JRC) -against- FIRE DEPARTMENT OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Defendants.

NICHOLAS G. GARAUFIS, United States District Judge. Plaintiff Michael McGrath brings this action against Defendants Fire Department of the City of New York (the “FDNY”) and the City of New York (the “City”) (collectively, “Defendants”). On August 8, 2019, this court issued a Memorandum and Order granting in part and denying in part Defendants’ motion to dis- miss. McGrath v. Arroyo, No. 17-CV-1461 (NGG) (RER), 2019 WL 3754459, at *18 (E.D.N.Y. Aug. 8, 2019) (dismissing claims against individual defendants). Plaintiffs claims that survived that motion are allegations of violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (“Title VII”), Section 296 of the New York State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL”), Sections 40-c and 40-d of the New York Civil Rights Law, N.Y. Civ. Rights Law §§ 40-c & 40-d (“NYCRL”), and Section 8-107 of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (“NYCHRL”), for wrongfully retaliating against him on the basis of his race and gender. (See generally Am. Compl. (Dkt. 32).) Pending before the court is Defendants’ mo- tion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56, which McGrath opposes. (Defs.’ Not. of Mot. (Dkt. 134); Defs.’ Mem. in Supp. of Mot. (“Mot.”) (Dkt. 137); PI.’s Mem. in Opp’n. of Mot. (“Opp’n”) (Dkt. 142); Defs.’ Reply in Supp. of Mot. (“Reply”) (Dkt. 138).) For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED.

I. BACKGROUND A. Factual Background Michael McGrath is a white, male, retired FDNY officer. (See Defs.’ Rule 56.1 Statement (“Defs.’ 56.1 Stmt.”) (Dkt. 136) 4 1.) McGrath began his career as a fireman at the FDNY in 1979 and was employed by the FDNY until he retired on February 15, 2018. (See id. #4 15, 155.) Throughout his career at the FDNY, he was promoted several times, eventually becoming Battalion Commander for FDNY Battalion 47 in Far Rockaway, Queens in 2003. (See id. 7 16-18.) Two years into his command of FNDY Battalion 47, Battalion 47 became a “joint facilit[y]” housing both Fire Operations and EMS Operations. (Id. § 20; Pl.’s 56.1 Statement (“Pl.’s 56.1 Stmt.”) (Dkt. 141 at ECF pp. 44-56) 4 3.) The court refers to the joint facility where McGrath worked as the “Firehouse.” Both Fire Operations and EMS Operations housed in the Firehouse share common areas, including a gym, terrace, locker rooms, and bathrooms. (Defs.” 56.1 Stmt. 21.) In January 2014, McGrath met Marilyn Arroyo, an EMS Para- medic, when Arroyo was involved in a motor vehicle accident to which McGrath responded. (Pl.’s 56.1 Stmt. {9 9-10.) It is undis- puted that McGrath and Arroyo met several times after they first met, (see Aug. 15, 2016 FDNY EEO Investigation Mem. from Ce- cilia Loving to Daniel A. Nigro (“Nigro Mem.”) (Dkt. 135-10 at ECF pp. 13-16) at ECF p. 14), but the parties dispute whether these meetings were dates or “merely two co-workers getting to- gether because Arroyo asked for job-related advice due to having family members interested in applying to the FDNY,” (Pl.’s 56.1 Stmt. § 11). McGrath claims that shortly after meeting Arroyo, he began hearing rumors that Arroyo was having sex with a fire- fighter inside of the Firehouse. (See Pl.’s 56.1 Stmt. 4 13.) McGrath first approached Arroyo’s supervisor Chief Steven Russo with the allegations; Russo told McGrath that he would speak with Arroyo and get back to McGrath by the end of the day. (See

id. § 18.) Russo did not get back to McGrath that day. (See id. 4 19.) On March 15, 2015, McGrath approached Arroyo and dis- cussed the allegations with her.! (See Defs.’ 56.1 Stmt. { 26; Pl.’s 56.1 Stmt. 4 20.) McGrath then brought the allegations to Assis- tant Chief Edward Baggott and Division Commander James DiDomencio. (See Pl.’s 56.1 Stmt. §€ 30-31.) DiDomenico told McGrath that while the FDNY Bureau of Investigations and Trials (“BITs”) was not going to investigate the allegations, Arroyo’s EMS supervisor would speak with her. Ud. { 33.) Shortly there- after, DiDomenico instructed all Battalion Commanders (including McGrath) to give “drills on inappropriate behavior.” (Ud. 4 34.) 1. Arroyo FDNY EEO Complaint On April 3, 2015, Arroyo submitted a complaint to the FDNY’s Equal Opportunity Employment (“EEO”) Office alleging that McGrath sexually harassed her. (See Defs.’ 56.1 Stmt. 9 22, 47; Arroyo EEO Compl. (Dkt. 135-6).) The Arroyo FDNY EEO Com- plaint alleged that on March 15, 2015, McGrath asked Arroyo to meet him in the Firehouse’s mechanical room, where McGrath “informed [Arroyo] that firemen’s wives were making complaints about [Arroyo] with regard to rumors of inappropriate behavior with numerous firefighters from Battalion 47 as well as police officers from the local precincts.” (Arroyo EEO Compl. at ECF p. 3.) Arroyo alleged further that McGrath “claimed that the wives were unhappy with [Arroyo] having a personal relationship with a 35 year old fireman from E268.” (Id.) Arroyo claimed that McGrath said he could “make this all go away” if she agreed to

1 The parties dispute how many times McGrath met with Arroyo regarding the allegations, as well as the content of these conversations. (Compare Defs.’ 56.1 Stmt. 26-40 with Pl.’s 56.1 Stmt. {{ 21-27.) Defendants also assert that in the weeks following McGrath’s initial conversation with Arroyo about the alle- gations, McGrath discussed the allegations with other firefighters at the Firehouse, (See Defs.’ 56.1 Stmt. {| 41-47.)

transfer to another EMS Station and gave her until the following day to let him know her decision. (Id.) In March or April 2015, the FDNY reassigned McGrath to Queens Borough Command. (See Pl.’s 56.1 Stmt. 4 37.)? McGrath alleges that he was reassigned “without warning” and “stripped of his duties.” id.) The FDNY asserts that it acted pursuant to FDNY policy: “The FDNY transfer policy states that when a member’s unacceptable behavior, in violation of FDNY regulations and pol- icies, is of such a serious nature as to affect the administrative or operational effectiveness of a unit, a FDNY member may be de- tailed pending the outcome of formal disciplinary proceedings.” (Defs.’ 56.1 Reply 4 40.) On April 6, 2015, the FDNY EEO Office assigned a lawyer to investigate Arroyo’s complaint, and that lawyer conducted investigative interviews of the relevant individ- uals, including Arroyo, McGrath, and DiDomenico. (See Def.s’ 56.1 Stmt. 152; Defs.’ 56.1 Reply 4 43-44, 48-50.) 2. McGrath Agency Complaints On May 16, 2016, McGrath filed his own complaints with the FDNY EEO Office, the New York State Department of Human Rights (““NYSDHR”), and the United States Equal Employment Opportunity Commission (“US EEOC”) (collectively, “Agency Complaints”). (See Pl.’s 56.1 Stmt. € 45; Jul. 13, 2016 Mem. to Don H. Nguyen (“Nguyen Mem.”) (Dkt. 135-14).) According to an internal FDNY memorandum, McGrath’s FDNY EEO com- plaint alleged that McGrath “was transferred and demoted due to his race (Caucasian) and gender (male), and that Arroyo re- ceived differential treatment because she is female and Hispanic.” (Nguyen Mem.)

2 McGrath asserts that he was reassigned on or about March 27, 2015, (see Pl.’s 56.1 Stmt. { 37), while Defendants assert that McGrath was reassigned on April 9, 2015, (see Defs.” Reply to Pl.’s 56.1 Stmt. (“Defs.’ 56.1 Reply”) (Dkt. 138) 9 37).

3. Outcome of EEO Complaints Determinations in both Arroyo’s and McGrath’s FDNY EEO com- plaints came later that year. On July 13, 2016, McGrath’s FDNY EEO complaint was “administratively closed and . . . referred to the General Law Unit” because McGrath indicated during the in- take meeting for his FDNY EEO complaint that he had also filed a complaint outside the FDNY. (Id. (“Pursuant to the New York Citywide Policy, externally filed cases shall be closed and for- warded to the Agency General Counsel for further review and handling.”); see also Defs.’ 56.1 Stmt. {{ 70, 73, 75.)° With re- gard to Arroyo’s FDNY EEO complaint, on August 15, 2016, the FDNY EEO Office issued a memorandum to the Fire Commis- sioner Daniel A. Nigro substantiating Arroyo’s sexual harassment complaint against McGrath and recommending that “Arroyo and McGrath continue to be separated from working at the same lo- cation, and that McGrath be sent to EEO training and counseled by the [FDNY] EEO Office.” (See Pl.’s 56.1 Stmt. 52; Nigro Mem. at ECF p. 16.) The memorandum recommended further that the matter be referred to BITs “for appropriate discipline.” (Nigro Mem. at ECF p. 16.)4

3 On June 28, 2016, the FDNY EEO Office received a copy of McGrath’s NYSDHR complaint, which was “cross-filed” with McGrath’s US EEO Com- plaint. (Nguyen Mem.) 4 McGrath submitted a draft version of the FDNY EEO Office memorandum dated August 5, 2016 that substantiated Arroyo’s complaint and recommended that he continue to be separated from Arroyo, but had slightly different lan- guage in the recommendation section. (See Aug. 5, 2016 Draft FDNY EEO Investigation Mem. (“Draft Nigro Mem.”) (Dkt. 140-17).) For example, the Draft Nigro Memorandum noted that McGrath served in the FDNY for “over 37 years ... with an unblemished record” and that McGrath was detailed from his Battalion to the Queens Borough Command immediately after Arroyo filed the FDNY EEO complaint against McGrath, and McGrath “ha[d] been there ever since.” Ud. at 11.) The Draft Nigro Memorandum was later updated and presented by Cecilia Loving to Commissioner Daniel A. Nigro for his review and adoption. (See Nigro Mem.)

On September 9, 2016, BIT served McGrath with four charges under the FDNY’s internal rules and regulations relating to sexual harassment, making false statements, and general conduct. (See Pl.’s 56.1 Stmt. 4 58; Defs.’ 56.1 Stmt. 4 60-61.) As to McGrath’s NYSDHR complaint, the NYSDHR issued a “no probable cause” determination on November 10, 2016 dismissing McGrath’s com- plaint. (See Defs.’ 56.1 Stmt. 4 78 (citing NYSDHR Determination and Order After Investigation (Dkt. 135-16)).) 4. The Award and Medal Day FDNY firefighters who complete heroic acts are eligible for awards as determined by the FDNY’s Board of Merit, a rotating panel of five FDNY chiefs. (See Defs.’ 56.1 Stmt. 4 81-82.) When a meritorious act is submitted to the Board of Merit, the em- ployee’s supervisor recommends a specific class of award, listed as follows from highest to lowest class: Class I, Class II, Class III, Class A, or Class B. (See id. {{ 93, 88.) The Board of Merit then votes for which class of award each nominee should receive and the votes for each nominee are tabulated as follows: Class I votes are worth seven points, Class II votes worth six points, Class III votes are worth five points, Class A votes are worth four points, and Class B votes are worth three points. (See id. 88, 90-91.) The awards are determined by a tally of points determined by the Board vote, and the list of medal recipient candidates is re- viewed by senior FDNY leadership before the final awards are issued. (See id. {{ 90, 96, 107.) Generally, approximately 40 to 45 FDNY employees receive a medal on Medal Day held annually during the first Wednesday of June. (See id. 4 99, 97.) While recipients of Class I, II or II] awards are always invited to attend the ceremony, the parties dispute the extent to which recipients of Class A or B awards are invited to attend. (See id. □ 99-102.) Recipients of Class A or B awards who do not receive a medal on Medal Day nevertheless receive an award for their meritorious act, including a medal and uniform insignia. (See id. { 105.)

On August 13, 2016, McGrath performed an off-duty water res- cue of four individuals caught in a rip tide. (See Pl.’s 56.1 Stmt. 4 62.) As McGrath was not on duty during the rescue, McGrath submitted a meritorious act form to his supervisor DiDomenico. (See id. 64, 66.) DiDomencio recommended McGrath for a Class III award for McGrath’s rip tide rescue. (See Defs.’ 56.1 Stmt. § 113.) On December 15, 2016, the Board of Merit awarded McGrath a total of 21 points and voted to give McGrath a Class A award for his rip tide rescue. (See id. {{ 114, 118.) While Plaintiff was asked to complete a “medal day winner bio form’ on March 16, 2017, (see Defs.’ 56.1 Reply 4 77), the parties dispute whether McGrath was invited to attend Medal Day, (see Defs.’ 56.1 Stmt. 4 119). However, McGrath asserts that, after he filed the instant action on March 15, 2017, he learned on or around May 5, 2017 that he was not invited to Medal Day. (See Pl’s Counterstatement of Additional Material Facts (“Pl.’s 56.1 Counter Stmt.”) (Dkt. 141 at ECF pp. 1-44) 4 119 (noting that another firefighter William Felton who received fewer points for the same water rescue was invited to Medal Day); Pl.’s 56.1 Stmt. | 85.) McGrath discussed appealing the decision with DiDome- nico. (See Defs.’ 56.1 Stmt. 49 122-24.) 5. McGrath’s Disability Pension On January 16, 2018, the same day McGrath filed for retirement effective February 16, 2018, McGrath applied for a “Service In- curred Disability” pension. (See Defs.’ 56.1 Stmt. {4 153-54.) In his application for the Service Incurred Disability pension, he claimed several categories of disabilities such as respiratory con- ditions and post-traumatic stress disorder (“PTSD”) arising from his work at the World Trade Center following the September 11, 2001 terrorist attacks (“9/11”), and a spine and knee injury he claimed occurred as a result of a slip and fall in 2016. (See id. 1 144, 161; Pl.’s 56.1 Stmt. 4 91-92.) FDNY firefighters may retire

with a non-disability service retirement after completing 20 years of uniformed service. (See Defs.’ 56.1 Stmt. § 126.) FDNY firefighters may also apply for one or both types of supple- mental disability pensions: ordinary (non-service connected) or accidental (service connected). (See id. 4{ 126-27.) There are three layers of review for disability pensions. (See id. {4 128-43.) First, the FDNY Bureau of Health Services Medical Board (“BHS Medical Board”) must make a “fitness for duty” determination. (See id. 131.) For any member found permanently unfit for duty by the BHS Medical Board, the Fire Commissioner must apply for the disability retirement with the 1-B Medical Board—a panel of three physicians that is independent of the FDNY and Pension Board of Trustees. (See id. {{ 133-37, 140.) The 1-B Medical Board reviews the disability application and any supporting evi- dence from the applicant, and makes a determination that binds the Pension Board of Trustees as to whether the firefighter is dis- abled for retirement purposes, and makes a recommendation to the Pension Board of Trustees on whether the disability was caused by an accident in the firefighter’s line of duty. (See id. {{ 136-38.) The Pension Board of Trustees is comprised of City and Union representatives and makes the final determination. (See id. € 142.) While the Pension Board of Trustees cannot change the 1-B Medical Board’s determination on whether a firefighter is permanently disabled, it can overrule the 1-B Medical Board’s recommendation on the cause of the disability. (See id. { 143.) On April 7, 2017, the BIT requested that a hold be placed on any of McGrath’s existing or future retirement applications because of the ongoing adjudication arising from Arroyo’s substantiated FDNY EEO complaint. (See id. #4 150-52.) On February 16, 2018, the day after McGrath’s retirement became effective, this hold was lifted and he started receiving his non-disability pension ap- proximately fifteen days later. (See id. (§ 155-57.) On April 4,

2018, the 1-B Medical Board considered his application for disa- bility payments for the first time. (See id. € 163.) As to his right knee and spinal injuries, the 1-B Medical Board found that while he was considered “permanently disabled” and thus unfit for duty, his disability was caused by chronic degenerative diseases, rather than a 2016 slip and fall or any other service-related ac- tivities. (See id. 19 165-66, 183-84.) The 1-B Medical Board also denied his application with respect to his PTSD, finding that alt- hough he may have had symptoms in the past, he was “not permanently disabled due to a psychological illness.” (See id. 44 179-80.) Accordingly, the 1-B Medical Board recommended to the Pension Board of Trustees that McGrath receive ordinary dis- ability payments, rather than accident disability. (See id. | 167, 184.) On June 27, 2018 the Pension Board of Trustees reviewed McGrath’s case and directed that the 1-B Medical Board review a statement from McGrath dated June 19, 2018 and additional medical documentation from a 2002 magnetic resonance imag- ing (“MRI”) exam of his spinal injury. (See id. {4 185-86.) On September 14, 2018, the 1-B Medical Board reviewed his appli- cation a second time. (See id. 44 187.) The 1-B Medical Board reaffirmed its earlier decision, finding that McGrath’s MRI rec- ords supported its finding of a degenerative spinal condition. (See id. {{ 190, 192-93.) The 1-B Medical Board reviewed McGrath’s case again on February 6, 2019 and February 8, 2019, but did not change its initial determination. (See id. {f 198, 203, 204, 209.) On April 11, 2019, McGrath’s attorney sent the Pension Board of Trustees a letter and memorandum further asserting McGrath’s entitlement to a disability pension. (See id. 4 212.) On April 24, 2019, the Pension Board of Trustees reviewed McGrath’s case again and directed the 1-B Medical Board to re- view the letter from McGrath’s attorney and the minutes from the Pension Board of Trustees’ April 24, 2019 meeting. (See id. 4 213-14.) On June 19, 2019, the 1-B Medical Board met and con- cluded that “there [was] still no new medical evidence that

would lead [them] to modify [their] findings in this case.” (See id. {7 216-21.) On June 21, 2019, the 1-B Medical Board met again to review a letter from McGrath’s attorney but again con- cluded that his spinal injuries were “causally related to chronic degenerative disease.” (See id. {{ 222, 229-30.) On November 7, 2019, after a fifth review of McGrath’s case, and an additional interview and medical examination of McGrath fo- cusing on McGrath’s respiratory issues, the 1-B Medical Board recommended to the Pension Board of Trustees that McGrath be granted a disability pension for 9/11-related upper respiratory tract disease, noting that his condition had worsened since its previous evaluation of McGrath. (See id. 44 235-41). On Decem- ber 20, 2019, the Pension Board of Trustees approved McGrath’s service-incurred disability retirement. (See id. € 242.) McGrath started receiving payments in early 2020 and also received back payments retroactive to the date of his retirement in February 2018. (See id. 49 243-44.) B. Procedural Background On March 15, 2017, McGrath commenced this action against Marilyn Arroyo, Steven Russo, James Leonard, Daniel Nigro, Mayor Bill DeBlasio, the FDNY, and the City, alleging racial dis- crimination and retaliation under federal, state, and local laws, violation of his free speech rights, and several tort and contract claims. (See generally Compl. (Dkt. 1).) On December 5, 2017, Defendants filed their fully-briefed motion to dismiss the Com- plaint. (See First Mot. to Dismiss (Dkt. 24); Opp’n to First Mot. to Dismiss (Dkt. 26); Reply in Supp. of First Mot. to Dismiss (Dkt. 27).) On August 3, 2018, McGrath filed an Amended Complaint. (See generally Am. Compl. (Dkt. 32).) On February 15, 2019, de- fendants filed their fully-briefed motion to dismiss the Amended Complaint (Second Mot. to Dismiss (Dkt. 39); Opp’n to Second Mot. to Dismiss (Dkt. 42); Reply in Supp. of Second Mot. to Dis- miss (Dkt. 44).) On August 8, 2019, the court dismissed all

claims against defendants except for “(1) Title VII retaliation against FDNY and the City, (2) [NYSHRL] and NYCRL retaliation against FDNY and the City, and (3) NYCHRL retaliation claim against FDNY and the City.” See McGrath, 2019 WL 3754459, at *18. On January 3, 2024, the court denied McGrath’s motions for leave to amend his complaint for a second time as futile. (See Jan. 3, 2024 Order.) On February 9, 2024, the court denied McGrath’s motion for reconsideration of the court’s January 3, 2024 order. McGrath v. Arroyo, No. 17-CV-1461 (NGG) (JRC), 2024 WL 531251, at *4 (E.D.N.Y. Feb. 9, 2024). Pending before the court is Defendants’ fully-briefed mo- tion for summary judgment as to McGrath’s remaining retaliation claims. (See Mot.; Opp’n; Reply.) Il, LEGAL STANDARD To obtain Rule 56(a) relief, movants must “identify[] each claim or defense — or the part of each claim or defense — on which sum- mary judgment is sought.” Fed. R. Civ. P. 56(a). Movants are entitled to summary judgment if they “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.; Kemp v. Regeneron Pharms., Inc., 117 F.4th 63, 68 (2d Cir. 2024). A fact is material when it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute of fact is genuine “if the evidence is such that a reasona- ble jury could return a verdict for the nonmoving party,” Gayle v. Gonyea, 313 F. 3d 677, 682 (2d Cir. 2002).° “For a genuine dis- pute regarding a material fact to warrant a jury trial, there must be sufficient evidence supporting the claimed factual dispute ‘to require a jury or judge to resolve the parties’ differing versions of 5 When quoting cases, unless otherwise noted, all citations and internal quota- tion marks are omitted, and all alterations are adopted.

the truth at trial.” Goldberg v. City of New York, No. 19-CV-4241 (GBD) (KHP), 2021 WL 4482149, at *3 (S.D.N.Y. Sept. 30, 2021) (quoting Anderson, 477 U.S. at 249). However, “[w]hen no rational jury could find in favor of the nonmoving party be- cause the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). “The movant carries the burden of proving that no genuine fac- tual dispute exists.” Arce v. Sovereign Indus. Grp. Inc., No. 19-CV- 489 (NGG) (JRC), 2025 WL 102449, at *3 (E.D.N.Y. Jan. 15, 2025) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Even where, as here, there are cross-motions for sum- mary judgment, “each movant has the burden of presenting evidence to support its motion that would allow the district court, if appropriate, to direct a verdict in its favor.” Barhold v. Rodri- guez, 863 F.2d 233, 236 (2d Cir. 1988). In reviewing a summary judgment motion, the court “resolve[s] all ambiguities and draw[s] all permissible factual inferences in favor of the party against whom summary judgment is sought.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). However, the court need not draw any inference that is “blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007). To defeat a motion for summary judgment, the nonmoving party must provide “hard evidence,” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), “from which a reasonable infer- ence in [its] favor may be drawn,” Binder & Binder PC y. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007). Parties “cannot rely on inadmissible hearsay in opposing a motion for summary judg- ment.” Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985). The court relies on “the

pleadings, depositions, answers to interrogatories, and admis- sions on file, together with the affidavits” to determine whether summary judgment is appropriate. Ford y. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); see also Fed. R. Civ. P. 56(c). III. DISCUSSION Title VII, the NYSHRL, the NYCRL, and the NYCHRL prohibit em- ployers from retaliating against employees for opposing discriminatory employment practices. The court addresses McGrath’s claims brought under federal and state law together, then turns to his claim brought under New York City law. A. Applicable Law 1. Title VI, NYSHRL, and NYCRL “Title VII forbids an employer from discriminating against an em- ployee because the employee ‘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 man- ner in any investigation, proceeding, or hearing under this subchapter.” Farmer v. Shake Shack Enters., LLC, 473 F. Supp. 3d 309, 330 (S.D.N.Y. 2020) (quoting 42 U.S.C. § 2000e-3(a)). “The NYSHRL similarly makes it unlawful for an employer to retaliate or discriminate against an employee because [he] ‘has opposed any practices forbidden under this article or because. . . [he] has filed a complaint, testified or assisted in any proceeding under this article.” Id. (quoting N.Y. Exec. Law § 296(7)). “[Flacts suf- ficient to sustain a cause of action under [NYSHRL 8] 296 will support a cause of action under [S]ection 40-c of the [NYCRL].”° Hyman v. Cornell Univ., No. 15-CV-792 (FJS) (ATB), 2017 WL 1194231, at *10 (N.D.N.Y. Mar. 30, 2017), affd, 721 F. App’x 5 (2d Cir. 2017).

6 Section 40-d of the NYCRL creates a cause of action based on violation of Section 40-c. McGrath, 2019 WL 3754459, at *13 n.6.

At summary judgment, retaliation claims under Title VII and the NYSHRL are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (applying McDonnell Douglas framework to Title VII claim); Tafolla v. Heilig, 80 F.4th 111, 125 (2d Cir. 2023) (apply- ing McDonnell Douglas framework to NYSHRL claim). “Under the first step of the McDonnell Douglas framework, the plaintiff must establish a prima facie case of retaliation by showing 1) partici- pation in a protected activity; 2) the defendant’s knowledge of the protected activity; 3) an adverse employment action; and 4) a causal connection between the protected activity and the ad- verse employment action.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013). The Second Circuit has reasoned that an adverse employment action is a “materially adverse change in the terms and conditions of employment.” Weeks v. New York State Div. of Parole, 273 F.3d 76, 85 (2d Cir. 2001) (noting that indicators of a materially adverse change are “termi- nation of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of bene- fits, significantly diminished material responsibilities, or other indices unique to a particular situation”) (abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). The plaintiff must show that the retaliation was a “but- for” cause for the adverse employment action. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). The burden of production then shifts to the employer to “articulate some le- gitimate, non-retaliatory reason for the employment action.” Zann Kwan, 737 F.3d at 845. Finally, the plaintiff must then show that defendant’s non-retaliatory reason for its conduct “is a mere pretext for retaliation.” Id.

2. NYCHRL Section 8-107(7) of the NYCHRL prohibits employers from “re- taliat{ing] or discriminat[ing] in any manner against any person because such person has .. . opposed any practice forbidden un- der this chapter.” N.Y.C. Admin. Code § 8-107(7). “To prevail on a retaliation claim under the NYCHRL, the plaintiff must show that [he] took an action opposing [his] employer’s discrimina- tion, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 112 (2d Cir. 2013) (citing Albunio v. City of New York, 16 N.Y.3d 472, 479 (N.Y. 2011) and Williams v. New York City Hous. Auth., 872. N.Y.S.2d 27, 33-34 (1st Dep’t 2009).) The Second Circuit has emphasized that “courts must analyze NYCHRL claims separately and independently from any federal and state law claims.” Mihalik, 715 F.3d at 109, 110 n.8 (noting that “[i]t is unclear whether, and to what extent, the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims” and declining to resolve the issue). New York courts have broadly construed the NYCHRL’s retaliation provision. See Al- bunio, 16 N.Y.3d at 477-78 (noting that Section 8-107(7) must be construed broadly in favor of plaintiffs “to the extent that such a construction is reasonably possible”); see also Williams, 872 N.Y.S.2d at 34 (“[NJo challenged conduct may be deemed non- retaliatory before a determination that a jury could not reasonably conclude from the evidence” that the challenged con- duct was reasonably likely to deter the NYCHRL plaintiff from engaging in protected activity). B. The FDNY is not a suable entity As an initial matter, the court grants Defendants’ motion for sum- mary judgment as to McGrath’s claims against the FDNY because the FDNY is not a suable entity. (See Mot. at 21 (arguing that McGrath’s claims against the FDNY should be dismissed).) Under

the New York City Charter, “all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law.” N.Y. City Charter ch. 17, § 396. Accordingly, the court dismisses McGrath’s claims against the FDNY because the FDNY lacks the capacity to be sued. See Ximenes v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 2008) (“Section 396 of the [New York City] Charter has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued.”) (per curiam); Fahey v. City of New York, No. 10-CV-4609 CLG) (MDG), 2012 WL 413990, at *5 (E.D.N.Y. Feb. 7, 2012) (granting summary judgment as to all claims against the FDNY because it is not a suable entity) (collecting cases). C. Application 1. Title VII, NYSHRL, NYCRL a. McGrath’s prima facie retaliation case The parties agree that McGrath engaged in protected activity when he filed his Agency Complaints, and when he filed his Com- plaint with this court. (Mot. at 5; Opp’n at 6.) Accordingly, his earliest protected activity was when he filed his Agency Com- plaints on May 16, 2016 alleging that he was being discriminated against because of his race and gender. (See Pl.’s 56.1 Stmt. { 45; Defs.’ 56.1 Stmt. 49 66, 69.) Defendants were made aware of the Agency Complaints on the day when McGrath submitted them because he physically ap- peared at the FDNY’s EEO Office to submit his FDNY EEO complaint, and also informed the office that he had filed an ex- ternal complaint. (See Nguyen Mem.) McGrath argues that he suffered from several adverse employ- ment actions after he submitted his Agency Complaints and after he filed his Complaint with this court on March 15, 2017. These

actions concern Defendants’ handling of McGrath’s FDNY EEO complaint, Arroyo’s FDNY EEO complaint, McGrath’s disability pension application, McGrath’s award at Medal Day, and Defend- ants’ decision to station Arroyo at a location near where McGrath frequents to pick up his medications. The court addresses each of these in turn. b. McGrath’s FDNY EEO complaint McGrath points to the FDNY EEO Office’s failure to investigate his FDNY EEO complaint as retaliatory. (See Opp’n at 8-9 (citing Arkorful v. N.Y.C. Dep’t of Educ., 712 F. Supp. 3d 336 (E.D.N.Y. 2024)).) However, Arkorful is inapposite. In Arkorful, the court concluded that the New York City Department of Education’s fail- ure to investigate plaintiffs 2019 Office of Equal Opportunity (“OEO”) complaints following his 2016 complaint with the US EEOC was an adverse employment action. 712 F. Supp. 3d at 357-58 (“Failure to investigate a complaint can constitute an ad- verse employment action for purposes of a retaliation claim if the complaint is distinct from another separate, protected activity.”) (emphasis added) (citing Delisi v. Nat’l Ass’n. of Professional Women, Inc., 48 F. Supp. 3d 492, 497 (E.D.N.Y. 2014). In both Arkorful and Delisi, the defendants failed to investigate em- ployee-plaintiffs’ complaints to defendants because plaintiffs had made earlier, separate complaints to the US EEOC. 712 F. Supp. 3d at 357-58; 48 F. Supp. 3d at 497. However, unlike the plain- tiffs in Arkorful and Delisi McGrath never filed a “subsequent” complaint with the FDNY EEO Office after he filed his complaints with the US EEOC or NYSDHR. 712 F. Supp. 3d at 358 (noting that plaintiffs “2019 OEO Complaints contained allegations of subsequent discriminatory conduct that took place after the filing of the [US] EEOC complaint and the filing of this lawsuit”) (em- phasis added). Furthermore, in Arkorful the court found that the defendant did not offer a legitimate reason for its decision not to investigate or explain the OEO’s “purported” policy requiring that internal complaints be closed when external complaints are filed

based on the same facts. Id. Here, Defendants have entered their policy into the record and supplied evidence explaining its appli- cation to McGrath’s FDNY EEO complaint. (See FDNY EEO Policy (Dkt. 140-1) at 15 (“Complaints filed with agencies outside FDNY ... that are based on the same facts and circumstances as a complaint filed with the FDNY EEO Office shall be forwarded to the Deputy Commissioner of Legal Affairs and generally, the General Law Unit, for handling, defending or resolving any claims filed with the external agency.”); Nguyen Mem. (“During the May 16 intake, McGrath indicated to the EEO Office that he had filed an external complaint. . .. As such, the instant case is administratively closed and has been referred to the General Law Unit.”).) Accordingly, Defendants’ discontinuation of their inves- tigation of McGrath’s FDNY EEO complaint was not an adverse employment action. c. Arroyo’s FDNY EEO complaint The court notes at the outset that when an employer “undertakes a fact-finding investigation” in response to a complaint of wrong- ful conduct, the Second Circuit has cautioned lower courts against finding the investigation itself to be retaliatory because “the law must give breathing room for such investigations to be carried out.” Cox v. Onondaga Cnty. Sheriffs Dep’t, 760 F.3d 139, 146-47 (2d Cir. 2014) (collecting cases). However, the Cox court also noted that “an employer’s investigation may constitute a cognizable retaliatory action if carried out so as to result in a hos- tile work environment, constructive discharge, or other employment consequences of a negative nature, or if conducted in such an egregious manner as to ‘dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 147 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). Having already dismissed McGrath’s hostile work environment, constructive discharge, discrimination, First Amendment free speech, breach of contract, tortious interference with a contract, and intentional infliction of emotional distress

claims, see generally McGrath, 2019 WL 3754459. Defendants’ ar- gument that their investigation of Arroyo’s FDNY EEO complaint is not an adverse employment action is persuasive, (Reply at 3).” It is undisputed that McGrath was placed under oath as part of an FDNY EEO Office interview conducted in connection with Ar- royo’s FDNY EEO complaint in July 2016. (See Pl.’s 56.1 Stmt. 4 50.) While the court takes notice that the interviews that the FDNY conducted of other witnesses as part of that investigation did not have court reporters present and were not conducted un- der oath, (see Hilit Tolani Deposition Transcript 87:13-89:22), the court credits Defendants’ argument that McGrath “fails to cite any evidence aside from his own testimony to support his novel contention that the EEO Office cannot conduct interviews under oath, and in fact no provision of the EEO Policy prohibits such interviews,” (Reply at 4 (citing FDNY EEO Policy)). Indeed, the section of the FDNY EEO Policy titled “Interviews and the Obli- gation to Cooperate” describes interviewees’ right to have a union representative or attorney present during interviews and does not proscribe conducting sworn interviews. (See FDNY EEO Policy at 16-17.) There is nothing inherently adverse about being interviewed under oath as part of a sexual harassment investiga- tion. Accordingly, the FDNY EEO Office’s sworn interview of McGrath was not an adverse employment action.®

7 McGrath’s argument that the FDNY “suddenly revived” its investigation of Arroyo’s FDNY EEO complaint after he filed his FDNY EEO complaint is unper- suasive. (See Opp’n at 9-10). The FDNY EEO Office conducted multiple interviews before McGrath filed his complaints on May 16, 2016: McGrath on January 5, 2016, and Arroyo on April 6, 2015. (See Nguyen Mem.; Final Inves- tigative Memorandum (“Final Invest. Mem.”) (Dkt. 135-10 at ECF pp. 1-12) at ECF p. 3 nn. 1, 2).) 8 McGrath also argues that Defendants “harassed” McGrath by calling McGrath in for a BIT disciplinary hearing while he was on medical leave. (See Opp’n at 12-13; PL’s 56.1 Stmt. 4 105 (citing McGrath Deposition Transcript (“McGrath Dep. Tr.”) (Dkt. 140-12).)) McGrath testified at his deposition that it was

Finally, McGrath asserts that the FDNY EEO Office’s substantia- tion of Arroyo’s claims against him and the subsequent four charges that arose from the referral to BIT were an adverse em- ployment action.? On September 9, 2016, BIT served McGrath with four charges under the FDNY’s internal rules and regula- tions relating to sexual harassment, making false statements, and general conduct. (See Pl.’s 56.1 Stmt. { 58; Defs.’ 56.1 Stmt. 4 61.) Courts have opined that disciplinary charges resulting from an investigation may qualify as retaliation. See e.g., McGrath, 2019 WL 3754459, at *11; Monclova v. City of New York, No. 5- CV-3164 (DGT), 2008 WL 822117, at *7 (E.D.N.Y. Mar. 26, 2008) (“[D]isciplinary charges against plaintiffs are... an ad- verse employment action for the purpose of making out a prima facie case of retaliation. . . . [Because] charges of this sort can have significant future consequences for employment and could reasonably dissuade an employee from raising a claim of discrim- ination.”). Accordingly, the court finds that the FDNY’s

against FDNY policy to require him to appear for an interview or hearing while he was on medical leave. (See McGrath Dep. Tr. 97:18-22, 106:14-17.) How- ever, McGrath “cites no evidence that attempting to hold a disciplinary hearing while he was on medical leave violated any FDNY rule or regulation,” (Reply at 5), and McGrath does not otherwise show how this constitutes a “materially adverse change in the terms and conditions of [his] employment,” see Weeks, 273 F.3d at 85; Cox, 760 F.3d at 147. ° McGrath also asserts that edits made to the FDNY EEO Office memorandum recommending the case to BIT for discipline exacerbated that harm. (See Opp’n at 10-11 (citing Nigro Mem. and Draft Nigro Mem.).) Specifically, McGrath points to the Draft Nigro Memorandum’s recommendation section which notes McGrath’s 37 years of service “with an unblemished record” and does not in- clude a referral to BIT for discipline, (see Draft Nigro Mem. at 11), whereas the Nigro Memorandum dated 10 days later does not reference McGrath’s record in the recommendation section and includes a referral to BIT for discipline, (see Nigro Mem. at ECF p. 16). However, McGrath provides no evidentiary support for his assertion that the draft report was revised “after [it] was re- viewed, presumably by the FDNY Commissioner.” (See Opp’n at 11.) Nevertheless, the Draft Nigro Memo has in-line comments and tracked changes from its authors, (see Draft Nigro Mem. at 3), demonstrating that it was likely not the FDNY EEO Office’s final position.

substantiation of Arroyo’s claims and the subsequent charges that arose from the referral to BIT were an adverse employment ac- tion. However, to establish his prima facie case of retaliation, McGrath must also show that there was “a causal connection between [his] protected activity and [Defendants’] adverse employment action.” Zann Kwan, 737 F.3d at 844; Nassar, 570 U.S. at 362 (requiring a showing of “but-for” causation). McGrath’s only the- ory of causation is the temporal proximity between Defendants’ alleged adverse employment actions and his protected activity. (See Opp’n at 16-19.) Specifically, McGrath notes that immedi- ately after McGrath informed Arroyo’s supervisor Russo about the allegations McGrath had heard about Arroyo’s conduct in the Firehouse steam room, he was “banished” to Queens Borough Command, (Opp’n at 17; Final Invest. Mem. at ECF p. 10 (noting that McGrath was “detailed to Queens Borough Command in the beginning of April 2015”).) However, this cannot support McGrath’s causation argument because McGrath was not engag- ing in a protected activity when he reported Arroyo’s alleged sexual affairs to her supervisor. Complaining of a colleague’s al- leged sexual affairs is not a protected activity. As explained supra, McGrath’s earliest protected activity was when he submitted his Agency Complaints on May 16, 2016. (See Nguyen Mem.) Sealy v. State Univ. of N.Y.at Stony Brook, 408 F. Supp. 3d 218, 227 (E.D.N.Y. 2019) (“It is axiomatic that for any conduct to be deemed actionable as retaliation, it must occur after the pro- tected activity.”) (emphasis added), affd, 834 F. App’x 611 (2d Cir. 2020). Next, McGrath points to the fact that the FDNY EEO Office inter- viewed him again in connection with Arroyo’s complaint in July

2016,!° almost two months after he filed his FDNY EEO com- plaint and despite having already interviewed him on January 5, 2016. (See Opp’n at 17-18; Final Invest. Mem. at ECF p. 3 n. 2). Indeed, the FDNY interviewed several people in connection with Arroyo’s complaint after McGrath filed his FDNY EEO complaint, including Arroyo, O’Hal, and Chief Gary Rocco. (Final Invest. Mem. at ECF p. 3 n. 1, p. 10 n. 15.) On August 15, 2016, the FDNY substantiated Arroyo’s complaint against McGrath, (see Ni- gro Mem. at ECF p. 13.), and three weeks later, the BIT served McGrath with disciplinary charges under the FDNY’s internal rules and regulations, (see Pl.’s 56.1 Stmt. 4 58; Defs.’ 56.1 Stmt. { 61). That this all happened within a five-month period after McGrath filed his FDNY EEO compliant does not create a suffi- cient causal link because “[t]emporal proximity alone is insufficient to defeat summary judgment.” Zann Kwan, 737 F.3d at 847. Further, the FDNY EEO Office’s investigation of Arroyo’s complaint predated McGrath’s FDNY EEO complaint. (Compare Nguyen Mem. (McGrath made his FDNY EEO complaint on May 16, 2016) with Final Invest. Mem. at ECF p. 3 nn. 1 (Arroyo in- terviewed in connection with her complaint on April 6, 2015), 2 (McGrath interviewed in connection with Arroyo’s complaint on January 5, 2016).) Accordingly, McGrath has not shown that “but-for” his protected activities the FDNY would not have sub- stantiated Arroyo’s complaint against him or brought disciplinary charges. See Nassar, 570 U.S. at 362. d. McGrath’s disability pension application McGrath also claims that the FDNY’s placement of his disability pension and retirement application on hold and its numerous subsequent denials of his disability pension constitute adverse

10 The parties agree that McGrath’s second interview took place in July 2016, but dispute whether it took place on July 6, 2016 or July 8, 2016. (Defs.’ 56.1 Reply { 50.) The court need not and does not resolve this immaterial factual dispute.

employment actions. (Opp’n at 15-16.) The court looks to the undisputed record. As part of the BIT’s disciplinary proceedings concerning McGrath, on April 7, 2017, the BIT informed the Di- rector of the Pension Board of Trustees and other relevant officers that McGrath was “the subject of a pending BIT case” and requested that a hold be placed on any existing or new retirement applications. (Defs.’ 56.1 Stmt. 150-52.) On January 16, 2018, McGrath filed for retirement and a Service Incurred Disability . pension. (See id. 153-54.) On February 16, 2018, the day after McGrath’s retirement became effective, the hold on his retire- ment application was lifted and McGrath started receiving a non- disability pension. (See id. 4 156-57.) However, between April 4, 2018 and November 7, 2019, the 1-B Medical Board and the Pension Board of Trustees denied his dis- ability pension by concluding multiple times that McGrath’s physical condition was not a result of his FDNY service, and he did not suffer from PTSD, even if he may have previously had symptoms. (See id. €{ 163, 165-67, 179-80, 183-86, 190, 192-93, 198, 203-204, 209, 213-214, 222, 229-30.) During this period, McGrath retained an attorney to advocate on his behalf before the relevant boards. (See id. 212, 222, 229-30.) On November 7, 2019, after an additional interview and medical examination of McGrath focused on McGrath’s respiratory issues, the 1-B Medical Board recommended to the Pension Board of Trustees that McGrath be granted additional accidental disability retire- ment for his 9/11-related upper respiratory tract disease, noting that his condition had worsened since its previous evaluation of McGrath. (See id. 239-41.) The Pension Board of Trustees ap- proved McGrath’s Service Incurred Disability pension the following month, and McGrath started receiving payments in early 2020, including back payments retroactive to the date of his retirement. (See id. {| 242-44.)

McGrath’s claim that he suffered an adverse employment action because his disability pension application was placed on hold and denied several times before ultimately being approved is unavail- ing. While McGrath contends that “there are no laws, rules or regulations that state holds are appropriate for individuals seek- ing a disability pension with charges pending,” (see Pl.’s 56.1 Counter Stmt. { 149), the evidence demonstrates that there was a longstanding policy in place that explains why McGrath’s disa- bility pension application was put on hold, (Defs.’ 56.1 Stmt. 4 149). Both the Deputy Director and Assistant Commissioner of BIT testified that McGrath’s disability pension application was put on hold pursuant to BIT’s longstanding policy.'! (See Joseph Palazzolo Deposition Transcript (Dkt. 135-32) 117:23-118:3 (“[W]henever a fire member is served with charges, if there are any allegations of misconduct we place a pension hold on every single member.”), 118:14-23 (“If its a disability retirement where they’re receiving a disability pension, the Department will place what’s known as a pension hold on them while an investi- gation is pending, charges are pending, and my understanding is while that pension hold is in place, the member can’t be seen by the 1-B Board, which would be reviewing their application for a disability retirement.”); Robert Wallace Deposition Transcript (Dkt. 135-24) 58:11-19 (“So if a fire fighter or an EMT seeks to retire through normal retirement process, the Department would have 30 days by which to effectuate any charges or discipline if the case may be within that 30-day period. However, the Depart- ment could place a hold on disability applications, and did as a standard operating procedure.”).) Accordingly, this factual dis- pute on whether there was a policy in place does not require a jury to “resolve the parties’ differing versions of the truth at trial.” Goldberg, 2021 WL 4482149, at *3. Because Defendants were

11 When agency practices are “wide-spread” and “long-standing,” they can “constitute unwritten policies or customs.” See Rounds v. Thompson, No. 9:12- CV-953 (GLS) (TWD), 2013 WL 3187074, at *2 (N.D.N.Y. June 20, 2013).

acting pursuant to FDNY policy and the hold was ultimately lifted, Defendants’ placement of McGrath’s disability pension ap- plication on hold was not an adverse employment action. McGrath likewise fails to convince the court that the 1-B Medical Board and Pension Board of Trustees’ initial denials of his disa- bility pension after the hold was lifted constitute an adverse employment action. “In determining whether a plaintiff suffered ‘adverse consequences’ after a rescinded [determination by plain- tiffs employer], courts have focused on whether the defendant restored plaintiff to [his] previous. . . benefits.” Shultz v. Congre- gation Shearith Israel of the City of New York, 202 F. Supp. 3d 411, 418 (S.D.N.Y. 2016), affd in part, vacated in part, remanded sub nom. Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298 (2d Cir. 2017). Because McGrath ultimately received a disability pension, including back payments dating to when he first retired, (see Defs.’ 56.1 Stmt. {4 242-44), his initial denials also do not qualify as adverse employment actions, see Carvalho v. Associated Brands, Inc., No. 15-CV-72 (RJA) (MJR), 2016 WL 8709809, at *11 (W.D.N.Y. May 13, 2016) (reasoning that there was no adverse employment action because defendant provided disability carrier with the documentation that plaintiff requested and submitted evidence that “plaintiff was granted both short and long term disability benefits”), report and recom- mendation adopted, No. 15-CV-72 (MAT), 2017 WL 405403 (W.D.N.Y. Jan. 31, 2017), affd, 707 F. App’x 742 (2d Cir. 2017). e. Medal Day McGrath’s receipt of a Class A award in place of the Class III award for which he was originally recommended does not con- stitute an adverse employment action. McGrath has not put forward any evidence of improprieties within the Board of Merit’s vote taken on December 15, 2016 that could have caused the withholding of the more prestigious Class III award. (See Opp’n at 13-14.) McGrath’s only potentially cognizable adversity is

within the FDNY’s decision to rescind his invitation to be honored at Medal Day. On December 15, 2016, the Board of Merit awarded McGrath a total of 21 points and voted to give McGrath a Class A award for his rip tide rescue. (See Defs.’ 56.1 Stmt. 19 114, 118.) The FDNY captain that coordinated the Board of Merit meeting on that day testified that to determine which awardees would receive a medal on Medal Day, the FDNY has “this point system because we only give out... roughly 40 medals I want to say. So we take the highest, 40 points, and work our way down.” (Raymond Ar- cos Deposition Transcript (“Arcos Dep. Tr.”) (Dkt. 140-7) 37:6- 10.) While the parties dispute whether Defendants invited McGrath to attend Medal Day, (see Defs.’ 56.1 Stmt. § 119), it is undisputed that Defendants asked McGrath to complete a “medal day winner bio form” on March 16, 2017, (see Defs.’ 56.1 Reply { 77; Mar. 16, 2017 Email from Raymond Arcos to Michael McGrath (Dkt. 140-21)). FDNY emails from March 27, 2017 where staff members were planning the upcoming Medal Day ceremony note that “[Battalion Commander] McGrath” was “the person not getting the medal,” suggesting that the FDNY decided to rescind McGrath’s Medal Day invitation. (See Mar. 27, 2017 Emails Between Thomas Coleman and Janet Kimmerly (Dkt. 140-23) at ECF pp. 3-4.) McGrath invited family members from across the United States to witness the FDNY honor him during the Medal Day ceremony where the “Mayor presents award and medal recipients with [their awards] recognizing the heroic acts performed.” (See Pl.’s 56.1 Stmt. 99 75-76.) While the court rec- ognizes McGrath’s disappointment with the FDNY for not recognizing him at Medal Day, the court finds that this event does not constitute a “materially adverse change in the terms and conditions of [his] employment.” Weeks, 273 F.3d at 85 (reason- ing that sufficiently adverse changes include “a termination of employment, a demotion evidenced by a decrease in wage or sal- ary, a less distinguished title, a material loss of benefits, [or]

significantly diminished material responsibilities”). The court finds that the alleged rescission of his invitation was not an ad- verse employment action. f. Arroyo Reassignment McGrath asserts that the fact that Arroyo was later stationed by his home in Far Rockaway, Queens near the pharmacy where he picks up his medicine was retaliatory because it increased the chance of him running into her. (See Pl.’s 56.1 Stmt. {111 (citing McGrath Dep. Tr.).) Defendants dispute this assertion, and the only evidence McGrath cites in support of this position is his own deposition testimony, which merely restates this otherwise un- corroborated theory as an explanation for his retirement. (See McGrath Dep. Tr. 83:8-84:6.) McGrath has failed to provide “hard evidence” supporting retaliation on this ground that would permit the court to draw an inference in his favor. See D'Amico, 132 F.3d at 149. Accordingly, the FDNY’s alleged reassignment of Arroyo to a station near McGrath was not an adverse employ- ment action.

In sum, McGrath has failed to state a prima facie case of retalia- tion. Thus, the court need not proceed to the next step of the McDonnell Douglass burden-shifting analysis. See Zhengfang Liang v. Cafe Spice SB, Inc., 911 F. Supp. 2d 184, 206-207 (E.D.N.Y. 2012) (“Because plaintiff fails to establish a prima facie case, the Court need not address the second two steps of the McDonnell Douglas test.”). Nevertheless, the court turns to assess the evidentiary support for Defendants’ argument that the FDNY’s actions were supported by legitimate reasons.

g. Defendants’ explanation’? Defendants respond to McGrath’s allegation that they failed to investigate his FDNY EEO complaint by pointing to the FDNY’s EEO Policy. (Mot. at 11; Defs.’ 56.1 Stmt. 4 72 (citing FDNY EEO Policy).) The FDNY EEO Policy provides for FDNY EEO com- plaints to be administratively closed and transferred to the General Law Unit when complainants file complaints with exter- nal agencies. (See FDNY EEO Policy at 15.) The FDNY applied that policy when it administratively closed McGrath’s complaint upon learning that he had also filed complaints based on the same facts and circumstances with the NYSDHR and US EEO. (See Nguyen Mem.) Accordingly, the court finds this to be a “le- gitimate, non-retaliatory reason” for the FDNY’s administrative closure of McGrath’s EEO complaint. See Zann Kwan, 737 F.3d at 845.

12 McGrath argues that Defendants have offered inadmissible documents in support of their motion, specifically arguing that the Arroyo EEO Complaint and an attorney-drafted position statement submitted to the NYSDHR in re- sponse to McGrath’s NYSDHR complaint are hearsay and not based on personal knowledge. (See Opp’n at 4-5 (citing Arroyo EEO Complaint and NYSDHR Position Statement (Dkt. 135-5 at ECF pp. 1-8) (attaching the FDNY Policy Regarding Assignment and Transfer of Firefighter).) The court rejects McGrath’s argument as to the Arroyo EEO Complaint because it is being offered to establish that Arroyo made a complaint to the FDNY EEO Office, not to establish the truth of the contents of the complaint itself. See Anderson v. United States, 417 U.S. 211, 220 n. 8 (1974) (“Of course, evidence is not hearsay when it is used only to prove that a prior statement was made and not to prove the truth of the statement.”). The court declines to consider the NYSDHR Position Statement as evidence because it contains an FDNY attorney's written advocacy to the NYSDHR re- butting McGrath’s discrimination complaint. Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Gir. 2013) (“[T]he arguments of counsel are not evidence.”). The court is permitted, however, to consider the FDNY Policy Regarding Assign- ment and Transfer of Firefighter attached to the NYSDHR Position Statement. (See FDNY Policy Regarding Assignment and Transfer of Firefighter (Dkt. 135- 5 at ECF pp. 10-12).) See Medina v. Donaldson, No. 10-CV-5922 (VMS), 2014 WL 1010951, at *10n. 14 (E.D.NLY. Mar. 14, 2014).

Defendants similarly submit legitimate reasons for the substanti- ation of Arroyo’s complaint against McGrath and the subsequent disciplinary charges brought against McGrath. According to the Final Investigative Memorandum, Arroyo alleged that McGrath “spread[] rumors that she was having sex in the firehouse, t[old] her that firefighters’ wives wanted her out of the firehouse, de- mand[ed] that she transfer to a different FDNY facility, and engag[ed] in other misconduct.” (Ud. at ECF p. 2.) As part of De- fendants’ investigation into Arroyo’s complaint, the FDNY EEO Office interviewed both McGrath and Arroyo twice, and inter- viewed 12 other witnesses. (See Final Invest. Mem. at ECF p. 3.) Based on this extensive investigation, the FDNY EEO Office de- termined as follows: [T]he evidence shows that it is more likely than not that: McGrath and Arroyo spent time together after work hours in anon-platonic manner; Arroyo advised McGrath that she did not wish to purse a relationship; McGrath confronted Arroyo about unsubstantiated rumors of sexual misconduct in the workplace without addressing such alleged misconduct within his, and Arroyo’s, chain of command; suggested and/or threatened Arroyo with a transfer to a different sta- tion; and recommended to Arroyo’s supervisors that she be transferred to a different station. Viewing the totality of cir- cumstances, such conduct constitutes sexual harassment in violation of the EEO Policy. dd. at ECF p. 11.) The FDNY EEO Office accordingly recom- mended to Fire Commissioner Nigro that: (1) “Arroyo and McGrath continue to be separated from working at the same lo- cation;” (2) “McGrath be sent to EEO training and counseled by the EEO Office;” and (3) the matter be “referred to [BIT] for ap- propriate discipline.” (Nigro Mem. at ECF p. 16.) That referral resulted in BIT bringing several charges against McGrath under the FDNY’s internal rules and regulations. (See Pl.’s 56.1 Stmt. 4

58; Defs.’ 56.1 Stmt. { 61.) Courts of this Circuit have concluded that “a finding that an employee engaged in sexual harassment is a legitimate, non-discriminatory reason for discharging an ad- verse employment action.” Randolph v. CIBC World Mkts., 1-CV- 11589 (RWS), 2005 WL 704804, at *14 (S.D.N.Y. Mar. 29, 2005) (collecting cases). Although McGrath provides insufficient evidence to support his prima facie retaliation case as it relates to Medal Day, the evi- dence shows that the ultimate decision of who would be recognized on that day always rested with the FDNY’s most sen- ior leadership. (See Arcos Dep. Tr. 37:19-38:12, 40:3-8.) And the Fire Commissioner testified that he reviewed the proposed list of Medal Day awardees in accordance with the best interests of the FDNY: Q Getting back to the Medal Day, I believe it’s your testi- mony that Chief McGrath was dis-invited from Medal Day because of EEO substantiated conclusion; is that correct?

A Well, I don’t specifically recall any conversation, but... I would think it would be my, and it is my opinion, that it was not in the department’s best interest to have given someone a medal who was very recently involved in a substantiated EEO complaint. (Nigro Dep. Tr. 153:15-154:6.) Accordingly, the court finds that Defendants had “legitimate, non-retaliatory reason[s]” for their conduct. See Zann Kwan, 737 F.3d at 845. And as McGrath fails to state a prima facie case for retaliation, see Part III.C.1.a, McGrath similarly fails to show that Defendants’ conduct was “a mere pretext for retaliation,” id. The court concludes that there is no genuine dispute as to any mate- rial fact that warrants a jury trial on McGrath’s retaliation claims under Title VII, the NYSHRL, or the NYCRL. Fed. R. Civ. P. 56(a);

Kemp, 117 F.4th at 68. Accordingly, Defendants’ motion for sum- mary judgment as to these claims is granted. 2. NYCHRL The court now turns to McGrath’s retaliation claim under the NY- CHRL, which must be analyzed separately from his federal and state claims. See Mihalik, 715 F.3d at 109. While the court recog- nizes that the NYCHRL provides broader protections than its state and federal analogues, see id., McGrath must still “establish that there was a causal connection between his protected activity and the employer’s subsequent action, and must show that a de- fendant’s legitimate reason for [his] termination was pretextual or motivated at least in part by an impermissible motive,” Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 449 (S.D.N.Y. 2018). McGrath’s retaliation claim fails even under the NYCHRL. McGrath failed to offer evidence that Defendants’ conduct was reasonably likely to deter McGrath from engaging in protected activities. The evidence shows that the FDNY EEO Office substan- tiated Arroyo’s complaint against McGrath and _ brought disciplinary charges against McGrath not as a result of McGrath’s Agency Complaints, but because of the FDNY EEO Office’s exten- sive fact-finding that validated Arroyo’s sexual harassment allegations. McGrath’s scant evidence showing a causal link be- tween his protected activity and the alleged retaliatory actions is insufficient to defeat Defendants’ motion for summary judgment. See Reichman v. City of New York, 117 N.Y.S.3d 280, 287 (2d Dep’t 2020) (affirming summary judgment for defendants where plaintiff “did not suffer an adverse employment action based upon his engagement in a protected activity” and defendant “es- tablish[ed] that there [was] no causal connection between the protected activity and the alleged retaliatory actions”). McGrath failed to provide “hard evidence” that Defendant’s actions were “motivated at least in part by an impermissible motive.” See

D’Amico, 132 F.3d at 149; Hughes, 304 F. Supp. 3d at 449. As the court explained infra at Part III.C.b, Defendants had a legitimate explanation for their conduct. See Keles v. Yearwood, No. 15-CV- 03880 (NG), 2019 WL 1298480, at *8 (E.D.N.Y. Mar. 20, 2019) (granting defendants’ motion for summary judgment on NY- CHRL claim because “defendants. . . proffered a legitimate non- discriminatory reason” for their conduct). In sum, after conduct- ing a separate analysis for McGrath’s NYCHRL claim, the court concludes that that there is no genuine dispute as to any material fact that warrants a jury trial on McGrath’s retaliation claim un- der the NYCHRL. Fed. R. Civ. P. 56(a); Kemp, 117 F.4th at 68. Accordingly, Defendants’ motion for summary judgment as to this claim is granted. IV. CONCLUSION For the foregoing reasons, the court GRANTS Defendants’ motion for summary judgment. The Clerk of Court is respectfully DI- RECTED to enter judgment dismissing all of McGrath’s claims and close this case. SO ORDERED.

Dated: — Brooklyn, New York September 22, 2025 s/Nicholas G. Garaufis EAOLES G. GARAUFIS nited States District Judge