Malave-Sykes v. Geodis SCO USA LLC

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JOSHUA MALAVE-SYKES,
Plaintiff,
3:24-CV-1358
v. 	(GTS/ML)
GEODIS SCO USA LLC; and KIMBERLY
CONKLIN,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
JOSHUA MALAVE-SYKES
Plaintiff, Pro Se
15 Delaware Avenue, Apt #245
Endicott, New York 13760
FISHER & PHILLIPS 	PHILLIP BAUKNIGHT,
Counsel for Defendant Geodis SCO USA LLC 	ESQ.
400 Connell Drive, Suite 4000
Berkeley Heights, New Jersey 07922
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
The Clerk has sent an amended complaint in the above captioned action filed by pro se
plaintiff Joshua Malave-Sykes (“Plaintiff”) to the Court for review. (Dkt. No. 23.) In addition,
Senior United States District Judge Glenn T. Suddaby has referred Defendant Geodis SCO USA
LLC’s motion to dismiss (Dkt. No. 5) to the undersigned for a report and recommendation. For
the reasons discussed below, I (1) recommend that Plaintiff’s Amended Complaint (Dkt. No. 23)
be dismissed in its entirety without leave to amend for failure to state a claim upon which relief
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may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B), and (2) recommend that the motion to
dismiss (Dkt. No. 5) be denied as moot.
I. 	BACKGROUND
A. 	Procedural History
On November 7, 2024, Plaintiff commenced this action by filing a pro se Complaint
against Defendant Geodis SCO USA LLC (“Defendant Geodis”) alleging violations of Title VII
of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 (“ADA”)
together with an application to proceed in forma pauperis. (Dkt. Nos. 1, 2.)
On December 9, 2024, Defendant Geodis filed a pre-answer motion to dismiss for failure
to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No.
5.) On December 27, 2024, Plaintiff filed a response in opposition to the motion to dismiss.
(Dkt. Nos. 10, 11.)
On January 7, 2025, the undersigned filed an Order and Report-Recommendation
granting Plaintiff’s motion for leave to proceed in forma pauperis and recommending that the
action be dismissed with leave to amend. (Dkt. No. 13.) On March 28, 2025, Senior District
Judge Suddaby accepted and adopted the undersigned’s Report-Recommendation. (Dkt. No.
14.) Plaintiff’s Complaint (Dkt. No. 1) was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and
Plaintiff was granted thirty days to file an amended complaint that cured the pleading defects
identified by the Court. (Dkt. No. 14.)
On July 8, 2025, this action was sua sponte dismissed with prejudice for the reasons set
forth in the Court’s Decision and Order dated March 28, 2025, and Plaintiff’s failure to file an
amended complaint. (Dkt. No. 16.) Judgement was entered. (Dkt. No. 17.)
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On July 21, 2025, Plaintiff filed a memorandum of law seeking to reopen the action.
(Dkt. No. 18.)
On October 16, 2025, Senior Judge Suddaby granted in part, Plaintiff’s motion and
vacated the judgment entered on July 8, 2025. (Dkt. No. 20 [citing Dkt. No. 17].) Plaintiff was
granted thirty days from the date of Judge Suddaby’s order to file an amended complaint. (Dkt.
No. 20.)
On November 4, 2025, Plaintiff filed a motion to amend the complaint. (Dkt. No. 21.)
On November 10, 2025, the undersigned denied as moot Plaintiff’s motion to amend and
directed him to file the amended complaint pursuant to Judge Suddaby’s order. (Dkt. No. 22
[citing Dkt. No. 20].)
On November 18, 2025, Plaintiff filed the Amended Complaint asserting claims against
Defendant Geodis and Kimberly Conklin (collectively “Defendants”).1 (Dkt. No. 23.)
On December 9, 2025, Defendant Geodis filed a reply in further support of its motion to
dismiss. (Dkt. No. 24.)
On January 12, 2026, Plaintiff filed a sur-reply in further opposition to the motion to
dismiss. (Dkt. No. 25.)
On January 21, 2026, Judge Suddaby accepted in part, and rejected in part, Plaintiff’s sur-
reply. (Dkt. No. 26.) More specifically, Judge Suddaby accepted Plaintiff’s sur-reply to the
extent that responded to Defendant Geodis’s reply, which may have raised new arguments not
presented in the motion to dismiss “(e.g., regarding new claims or factual allegations set forth in
Plaintiff’s Amended Complaint).” (Id.)
1 	The Clerk of the Court is directed to add Defendant Kimberly Conklin as a defendant to
this action. (Dkt. No. 23 at 18 [“plaintiff is now adding Kimberly Conklin as a defendant in this
action”].)
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On January 21, 2026, Judge Suddaby referred Defendant Geodis’s motion to dismiss (as
amended by its reply) to the undersigned for a Report and Recommendation to be issued with the
Report and Recommendation sua sponte reviewing Plaintiff’s Amended Complaint. (Dkt. No.
27.)
B. 	Amended Complaint
The Amended Complaint alleges that Plaintiff—a Black disabled man—was wrongfully
terminated by Defendant Geodis. (See generally Dkt. No. 23.)
Plaintiff alleges that he was hired by Defendant Geodis on August 1, 2022, as an
associate inventory. (Dkt. No. 23 at ¶ 7.) Plaintiff alleges that within months he was selected
and began training as an assistant production manager—Plaintiff appears to also refer to this
position as “Team Leader”—based on his “excellent working abilities.” (Id. at ¶¶ 7, 9, 33.)
Plaintiff alleges that in mid-December 2022, he provided a verbal warning to two other
employees of Defendant Geodis—Jenna Rivera and Sherry Olk—regarding their unsatisfactory
work performance. (Dkt. No. 23 at ¶ 9.) Plaintiff alleges that after the verbal warning, Ms.
Rivera and Ms. Olk filed false employment misconduct charges against Plaintiff. (Id.) Plaintiff
alleges that on or about December 30, 2022, he made a verbal complaint to Robert Scoberville
(production manager for Defendant Geodis) that Ms. Rivera and Olk were “causing him stress
and anxieties.” (Dkt. No. 23 at ¶ 13.)
Plaintiff alleges that on January 6, 2023, Defendant Conklin (a human resources
representative of Defendant Geodis) summoned Plaintiff to a private office where Mr.
Scoberville informed Plaintiff that he was being sent home because of unspecified “complaints.”
(Dkt. No. 23 at ¶¶ 11-12.) Plaintiff alleges that he was required to surrender his employee badge
and Mr. Scoberville escorted him off of the property. (Id. at ¶ 12.)
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Plaintiff appears to allege that his termination was effective January 6, 2023. (Dkt. No.
23 at ¶ 14; Dkt. No. 25 at 35-36, 44.) Plaintiff alleges that Defendant Geodis failed to conduct
any fact-finding inquiry regarding the false allegations made by Ms. Rivera and Ms. Olk and
thus deprived Plaintiff of an opportunity to defend himself. (Id. at ¶ 17.) Plaintiff alleges that
Defendant Geodis refused to issue him a letter of termination, which violated his rights pursuant
to New York State Labor Law. (Id. at ¶ 14.)
The Amended Complaint alleges that after being terminated, Plaintiff filed complaints
with the New York State Division of Human Rights (“NYSDHR”) and New York State
Department of Labor (“NYSDOL”). (Id. at ¶ 15.) Plaintiff alleges that Defendant Geodis’s
attorney, Kieran Lalor, sent Plaintiff an unjustified “cease and desist” letter dated May 16, 2023.
(Id.)
Based on these factual allegations, Plaintiff asserts the following four claims: (1) a claim
of retaliation against Defendant Geodis in violation of Title VII of the Civil Rights Act of 1964
(42 U.S.C. § 2000e) based on Defendant Geodis’s failure to follow its internal grievance and
disciplinary procedures while terminating Plaintiff’s employment; (2) a claim of retaliation
against Defendants in violation of the ADA (42 U.S.C. § 12203 and 29 C.F.R. § 1630.12) based
on (a) Ms. Lalor’s cease and desist letter that was intended to intimidate and prevent Plaintiff
from filing further complaints for unlawful employment practices, (b) Defendant Geodis’s failure
to provide Plaintiff with a termination letter, and (c) Defendant Conklin’s misrepresentation of
material facts in an Endicott Police report that she filed against Plaintiff; (3) a claim of
discrimination in violation of the ADA (42 U.S.C. § 12101) based on Plaintiff’s apparent speech
impairment that is related to allegations made by Ms. Rivera and Ms. Olk; and (4) a claim that
Defendants violated Plaintiff’s rights under the Fair Labor Standards Act (“FLSA”) (29 U.S.C. §
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203) by terminating Plaintiff days before he was scheduled to receive an increased salary in his
position as Team Leader. (Dkt. No. 23 at 5-11.) As relief, Plaintiff seeks declaratory and
injunctive relief, compensation for lost wages, and punitive damages. (Id. at 11-13.)
Attached to the Amended Complaint are (1) an affidavit that was included in Plaintiff’s
motion to amend the complaint (compare Dkt. No. 21, Attach. 1, with Dkt. No. 23 at 14-20
[missing page 6]); and (2) a memorandum of law with exhibits that was included in Plaintiff’s
motion to amend the complaint (compare Dkt. No. 21, Attach. 2 at 1-3, 11-43, with Dkt. No. 23
at 21-23, 25-57).
C. 	Parties’ Briefing on the Motion to Dismiss
1. 	Defendant Geodis’s Motion to Dismiss
Generally, in support of its motion to dismiss, Defendant Geodis asserts that the action
should be dismissed because Plaintiff commenced this action 93 days after receiving his right to
sue letter from the Equal Employment Opportunity Commission (“EEOC”), which is three days
after the 90-day time-period to file a civil action expired. (See generally Dkt. No. 5.) More
specifically, Defendant Geodis argues that the EEOC issued Plaintiff a notice of right to sue on
August 6, 2024. (Dkt. No. 5, Attach. 2 at 4.) Defendant Geodis argues that the notice is
considered received at the time that it is emailed and/or made available via the EEOC’s
electronic portal. (Id. at 4-5.) Defendant Geodis argues that Plaintiff’s ninety-day period
expired on November 4, 2024, but that Plaintiff did not commence this action until November 7,
2024. (Id. at 5.) Hence, Defendant Geodis argues that Plaintiff’s claim is time-barred and
should be dismissed with prejudice. (Dkt. No. 5, Attach. 2 at 3.)
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2. 	Plaintiff’s Response
Generally, in opposition to Defendant Geodis’s motion to dismiss, Plaintiff asserts that he
did not receive the EECO right to sue letter until three days after it was mailed to him via the
United States Postal Service and, in any event, the three-day presumption doctrine is applicable.
(See generally Dkt. No. 10.) Plaintiff argues that he mailed the Complaint in this action on
November 9, 2024. (Dkt. No. 10 at 5.) Thus, Plaintiff argues that he timely commenced this
action. (Id.)
Plaintiff asserts that he validly stated claims for (1) gender discrimination because Ms.
Olk and Ms. Rivera are females and he put them on notice of their poor work performance, (2)
race discrimination because he is Black and his immediate supervisors, management, and owners
of Defendant Geodis are white. (Dkt. No. 10 at 8-9.)
3. 	Defendant Geodis’s Reply
Generally, in further support of its motion to dismiss, Defendant Geodis asserts the
following four arguments: (1) Plaintiff cannot salvage his untimely Title VII and ADA claims by
asserting delayed receipt of the EEOC right to sue notice where he had actual and constructive
notice of his right to sue on August 6, 2024, and did not file suit until 93 days later; (2) Plaintiff’s
Amended Complaint is untimely and should be dismissed because on October 16, 2025, the
Court directed Plaintiff to file any amended complaint within thirty days, and thirty-three days
later, on November 18, 2025, Plaintiff filed the Amended Complaint; (3) Plaintiff’s newly
asserted FLSA claim should be dismissed because (a) it exceeds the scope of the Court’s leave to
amend, (b) it fails to state claim upon which relief may be granted in that, Plaintiff fails to allege
facts plausibly suggesting that he was denied (i) minimum wage, (ii) overtime compensation, or
(iii) any shortfall in pay for hours worked, and (c) it is time-barred because it was filed more than
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two years after Plaintiff was terminated; and (4) the Amended Complaint fails to cure the
deficiencies identified by the Court in that it fails to (a) plead facts plausibly suggesting that
Plaintiff’s termination was related to discrimination on the basis of his race, disability, or gender,
(b) plead facts plausibly suggesting that Plaintiff engaged in protected activity to sustain a
retaliation claim, and (c) allege a disability pursuant to the ADA or plead facts plausibly
suggesting any causal connection between Plaintiff’s disability and an adverse action. (Dkt. No.
24.)
4. 	Plaintiff’s Sur-Reply
Generally, in further opposition to Defendant Geodis’s motion to dismiss, Plaintiff asserts
the following eight arguments: (1) he provided a verbal warning to Ms. Rivera and Ms. Olk
regarding their job performance and one week later, Ms. Rivera and Ms. Olk retaliated by falsely
alleging that Plaintiff was rude and frightening to them; (2) Defendant Geodis failed to identify
the accusers or to conduct a fair impartial investigation into the false allegations, which violated
its own rules and regulations; (3) Defendant Geodis improperly argues that Plaintiff’s Title VII
claim is time barred but if that was a concern, “the Court would have indicated and not allowed
this action to proceed” and, in any event, is incorrect because Plaintiff received the right to sue
letter three days after it was issued on August 6, 2023, and thus, commenced this action 89-days
later; (4) he did not need permission from the Court to assert a FLSA claim, his FLSA claim is
not time-barred, and state and federal agencies have proper subject matter jurisdiction over
FLSA claims; (5) he sufficiently asserted claims for race, wage, and gender discrimination based
on the false allegations made by Ms. Rivera and Ms. Olk; (6) he sufficiently alleged retaliation
based on the allegation that Ms. Rivera and Ms. Olk asserted false allegations against Plaintiff
after he cautioned them on their poor work productivity; (7) he sufficiently alleged a race
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discrimination claim because Plaintiff is Black and Ms. Rivera, Ms. Olk, Defendant Geodis
management and owners are all non-Black; and (8) he sufficiently alleged a disability
discrimination claim because Plaintiff has a speech impairment and suffers depression and
Defendant Geodis did not afford Plaintiff an opportunity to respond or challenge the allegations
of Ms. Rivera and Ms. Olk. (Dkt. No. 25 at 1-17.)
II. 	RELEVANT LEGAL STANDARDS
A. 	Legal Standard Governing Initial Review of The Complaint
Because Plaintiff is proceeding in forma pauperis, his Amended Complaint must be
reviewed in accordance with 28 U.S.C. § 1915(e)(2)(B). The legal standard governing review of
a pleading pursuant to 28 U.S.C. § 1915(e)(2)(B) was discussed at length in the Order and
Report-Recommendation issued by the undersigned dated January 7, 2025. (Dkt. No. 13 at 4-6.)
B. 	Legal Standard Governing Motions to Dismiss For Failure to State a Claim
Upon Which Relief May Be Granted
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
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to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).2
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
2 	Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v.
Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.).
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U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
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Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
However, “in a pro se case, the court must view the submissions by a more lenient
standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated
to “‘make reasonable allowances to protect pro se litigants’” from inadvertently forfeiting legal
rights merely because they lack a legal education. Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a
result, Twombly and Iqbal notwithstanding, the court must continue to “construe [a complaint]
broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following materials outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
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(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.3
Moreover, “a pro se plaintiff’s papers in response to a defendant’s motion to dismiss for
failure to state a claim may be considered as effectively amending the allegations of his
complaint—to the extent those papers are consistent with the allegations in the complaint.” See
Drake v. Delta Airlines, Inc., 147 F.3d 169, 170, n. 1 (2d Cir. 1998) (per curiam) (“[W]e deem
Drake’s complaint to include the facts contained in his memorandum of law filed in response to
Delta’s 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (“In his
3 	See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573,
2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to
dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.
R. Civ. P. 12[d] if the “matters outside the pleadings” in consideration consist of [1] documents
attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may never[the]less consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant’s motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
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affidavit submitted in opposition to defendants’ motion to dismiss, Gill asserts that Mooney’s
actions amounted to deliberate and willful indifference. Liberally construed under pro se
pleading standards, Gill’s allegations against Mooney involve more than ordinary lack of due
care for the prisoner’s interests or safety, . . . and therefore state a colorable claim under the
Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted);
Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Sharpe, M.J.) (“[I]n cases
where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to
consider materials outside of the complaint to the extent they “are consistent with the allegations
in the complaint.”) (collecting district court cases), vacated on other grounds, 317 F. Supp. 2d
160 (N.D.N.Y. 2004) (Hurd, J.).
C. 	Legal Standards Governing the Filing of Claims Pursuant to Title VII
“As a precondition to filing a Title VII [and/or ADA] claim in federal court, a plaintiff
must first pursue available administrative remedies and file a timely complaint with the EEOC.”
Hardaway v. Hartford Pub. Works Dept., 879 F.3d 486, 489 (2d Cir. 2018); Riddle v. Citigroup,
449 F. App’x 66, 69 (2d Cir. 2011). “A lawsuit based on a Title VII claim must be filed within
90 days of receiving a right-to-sue letter from the EEOC.” Bamba v. Fenton, 758 F. App’x 8, 10
(2d Cir. 2018) (citing 42 U.S.C. § 2000e-5[f][1]). “Courts in the Second Circuit presume that a
mailed document is received three days after its mailing . . . and that the notice is presumed to
have been mailed on the date shown in the notice [absent evidence to the contrary].” Ranaghan
v. New York Ass'n of Psychiatric Rehab. Servs., 20-CV-0488, 2021 WL 431165, at *1 (N.D.N.Y.
Feb. 8, 2021) (Sharpe, J.) (internal alterations and quotation marks omitted).
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III. 	ANALYSIS
In addressing the sufficiency of a plaintiff’s complaint, the court must construe his
pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Having reviewed Plaintiff’s Amended Complaint with this principle in mind, I recommend that it
be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§ 1915. Because of the recommended disposition, I recommend that Defendant Geodis’s motion
to dismiss be denied as moot.
A. 	Title VII Retaliation
“Title VII prohibits discrimination on the basis of race, color, religion, sex, or national
origin.” Nelson v. WSWHE Boces, 25-CV-0524, 2025 WL 3963791, at *3 (N.D.N.Y. Sept. 17,
2025) (Lovric, M.J.) (citing 42 U.S.C. § 2000e-2(a)(1)), report and recommendation adopted by
2025 WL 3718639 (N.D.N.Y. Dec. 23, 2025) (D’Agostino, J.).
“[F]or a retaliation claim . . . the plaintiff must plausibly allege that: (1) defendants
discriminated—or took an adverse employment action—against him, (2) ‘because’ he has
opposed any unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 90 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-3[a]). In the retaliation context, “an
adverse employment action is any action that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 [2006]). Unlike discrimination claims, a retaliation
claim requires that the retaliation was the but-for cause of the employer’s adverse action, such
that “‘the adverse action would not have occurred in the absence of the retaliatory motive.’”
Vega, 801 F.3d at 90 (quoting Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir.
2013)). Moreover, a plaintiff need not allege that the retaliatory action was taken related to a
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protected characteristic, but rather that the retaliatory action was taken because he or she had
engaged in a protected activity, such as reporting or opposing discrimination. Vega, 801 F.3d at
91.
An employee’s complaint may qualify as protected activity where (i) the employee “had
a good faith, reasonable belief that [he] was opposing an employment practice made unlawful by
Title VII,” and (ii) the employer “understood, or could reasonably have understood, that the
[employee’s] opposition was directed at conduct prohibited by Title VII.” Kelly v. Howard I.
Shapiro & Assoc. Consulting Engineers, P.C., 716 F.3d 10, 14-15 (2d Cir. 2013) (citations
omitted). “[I]nformal complaints to management as to discrimination on a basis prohibited by
Title VII” have been deemed protected activity. Amin v. Akzo Nobel Chems., Inc., 282 F. App’x
958, 961 (2d Cir. 2008) (summary order) (citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 566
(2d Cir. 2000)). But such informal complaints “must be sufficiently specific to make it clear that
the employee is complaining about conduct prohibited by Title VII.” Risco v. McHugh, 868 F.
Supp. 2d 75, 110 (S.D.N.Y. 2012); see also Whitley v. Montefiore Med. Grp., 13-CV-4126, 2016
WL 1267788, at *11 (S.D.N.Y. Mar. 30, 2016) (“A generalized complaint about perceived
mistreatment without a specific connection to discrimination based on membership in a protected
class is insufficient to establish a protected activity.”).
Plaintiff’s Title VII retaliation claim fails to state a claim upon which relief may be
granted because the Amended Complaint does not allege facts plausibly suggesting that Plaintiff
engaged in protected conduct pursuant to Title VII before experiencing an adverse action. (Dkt.
No. 23.) More specifically, the following six incidents set forth in the Amended Complaint
could liberally be construed as Plaintiff’s attempts to engage in protected speech: (1) his verbal
caution to Ms. Rivera and Ms. Olk regarding their poor work performance (Dkt. No. 23 at 3-4);
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(2) his verbal complaint to Mr. Scoberville that Ms. Rivera and Ms. Olk were “causing him
stress and anxieties” (Dkt. No. 23 at ¶ 13); (3) his complaint of March 2023, regarding safety
concerns to the Occupational Safety & Health Administration (“OSHA”) (Dkt. No. 23 at 39-40;
Dkt. No. 25 at 5, 50-59); (4) his complaint of March 2023, to NYSDHR alleging that Plaintiff
was fired “based on 2 Hispanic female co-workers who said they feel uncomfortable with
[Plaintiff] as a consequence of [him] warning these same 2 female co-workers of their poor work
performance” (Dkt. No. 25 at 4, 33-40); (5) his complaint of May 2023, to NYSDOL alleging
that Plaintiff was “fire[d] . . . on the sole basis of mere hearsay testimony of [] 2 Hispanic co-
workers who [he] had warned a week earlier . . . that their work performance was lacking” (Dkt.
No. 25 at 5, 42-48); and (6) his complaint of April 2023, to the New York State Attorney
General (“NYS OAG”) alleging that “on January 6, 2023, [Plaintiff] was fired because two
employees made complaints about [him]” (Dkt. No. 25 at 5, 63-64).
These complaints do not relate to opposing discrimination on the basis of race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Hence, none of these complaints
constitute protected activity within the meaning of Title VII.4
As a result, I recommend that Plaintiff’s retaliation claim pursuant to Title VII be
dismissed for failure to state a claim upon which relief may be granted.
B. 	ADA Retaliation
The ADA prohibits retaliation against an individual who has opposed any act or practice
made unlawful under the ADA. Harris v. Bronx Parent Hous. Network, Inc., 18-CV-11681,
2020 WL 763740, at *3 (S.D.N.Y. Feb. 14, 2020) (citing 42 U.S.C. § 12203). “As with ADA
4 	Moreover, the undersigned notes that Plaintiff’s complaints made to OSHA, NYSDHR,
NYSDOL, and NYS OAG all occurred after Plaintiff was terminated from employment with
Defendant Geodis and thus, could not be causally related to his termination.
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discrimination claims, retaliation claims under the ADA are . . . subject to the McDonnell
Douglas burden-shifting framework.” Telesford v. New York City Dep't of Educ., 21-227, 2023
WL 6366051, at *1 (2d Cir. Sept. 29, 2023) (citing Treglia v. Town of Manlius, 313 F.3d 713,
719 (2d Cir. 2002)).
“To establish a prima facie case of retaliation, [a plaintiff] must show that: ‘(1) he
engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the
employer took adverse employment action against him; and (4) a causal connection exists
between the alleged adverse action and the protected activity.’” Frantti v. New York, 850 F.
App’x 17, 21 (2d Cir. 2021) (quoting Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.
2002)); see also Mitchell v. Planned Parenthood of Greater New York, Inc., 745 F. Supp. 3d 68,
96-97 (S.D.N.Y. 2024) (noting similarity between ADA and Title VII retaliation provisions).
“An employee’s activity is protected even if ‘his condition was not a disability within the
meaning of the ADA,’ so long as he alleges ‘that he possessed a good faith, reasonable belief
that the underlying challenged actions of the employer violated’ the ADA, and that ‘the
employer understood, or could reasonably have understood’ that the employee believed the
challenged conduct was discriminatory.” Batista v. Consol. Edison of New York, Inc., 24-CV-
0082, 2025 WL 1042338, at *5 (S.D.N.Y. Jan. 22, 2025), report and recommendation adopted,
2025 WL 842940 (S.D.N.Y. Mar. 18, 2025) (quoting Sarno v. Douglas Elliman-Gibbons & Ives,
Inc., 183 F.3d 155, 159 (2d Cir. 1999); Trotter v. Nat'l Football League, 737 F. Supp. 3d 172,
182 (S.D.N.Y. 2024)).
To prove a causal connection for an ADA retaliation claim, a plaintiff must show that
‘but for’ the protected activity, the adverse action would not have been taken. Sharikov v.
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Philips Med. Sys. MR, Inc., 103 F.4th 159, 170 (2d Cir. 2024) (citing Tafolla v. Heilig, 80 F.4th
111, 125 (2d Cir. 2023)).
The Amended Complaint fails to allege facts plausibly suggesting that Plaintiff opposed
any act or practice made unlawful under the ADA. (See generally Dkt. No. 23.) The crux of
Plaintiff’s grievance appears to be that Ms. Rivera and Ms. Olk retaliated against him by lodging
a false complaint because Plaintiff warned them about their poor work performance. (Dkt. No.
23 at ¶ 10; Dkt. No. 25 at 3, 11, 12-13.) Notwithstanding, Plaintiff appears to allege that Ms.
Rivera and Ms. Olk were intimidated by him because of his speech impediment. (Dkt. No. 23 at
¶¶ 29-30 [alleging that Ms. Rivera and Ms. Olk were “scared of [P]laintiff and ha[d] a hard time .
. . comprehend[ing P]laintiff[’s] speech because [P]laintiff ha[s a] speech impairment.”]; see also
Dkt. No. 25 at 36 [Plaintiff’s complaint to the NYSDHR where Plaintiff alleged that his “co-
workers had [an] issue with [his] disability who lodged [a] hearsay complaint.”].) However,
Plaintiff does not allege that he ever informed Defendants or any managerial representative of
Defendant Geodis that he (or anyone else) was experiencing discrimination on the basis of a
disability. Indeed, the Amended Complaint alleges that upon termination, Defendant Conkin and
Mr. Scoberville did not describe the “nature of the complaints . . . lodged” against Plaintiff and
he was not provided an opportunity to rebut the complaints. (Dkt. No. 23 at ¶ ¶12, 17.) Hence,
the Amended Complaint fails to allege facts plausibly suggesting that Plaintiff engaged in an
activity protected by the ADA.5
5 	To the extent that the Amended Complaint is liberally construed as alleging that Plaintiff
engaged in protected activity by the filing of his NYSDHR complaint and the adverse action
taken by Defendant Geodis was the cease-and-desist letter dated May 16, 2023, I recommend
that it be dismissed for failure to state a claim upon which relief may be granted. First, Plaintiff
fails to allege facts plausibly suggesting a causal connection between his NYSDHR complaint
and the cease-and-desist letter. More specifically, Plaintiff’s NYSDHR complaint was affirmed
on March 13, 2023. (Dkt. No. 25 at 38.) Plaintiff was sent a cease-and-desist letter on May 16,
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As a result, I recommend that Plaintiff’s ADA retaliation claim be dismissed for failure to
state a claim upon which relief may be granted.
C. 	ADA Discrimination
To plead a claim of discrimination under the ADA, Plaintiff must allege that “(1) his
employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was
otherwise qualified to perform the essential functions of his job, with or without reasonable
2023. (Dkt. No. 25 at 91-92.) Thus, more than two months elapsed between Plaintiff’s alleged
protected conduct and the alleged adverse action. See Dodd v. City Univ. of N.Y., 489 F. Supp.
3d 219, 247 (S.D.N.Y. 2020) (“Generally, to show causation through temporal proximity alone,
courts in this Circuit require no more than two months to have passed between a protected
activity and an adverse action.”). Second, I find that the cease-and-desist letter (Dkt. No. 25 at
91-92) was not an adverse employment action. See Shinde v. Chamber Music Am., Inc., 23-CV-
2554, 2025 WL 1042284, at *8 (S.D.N.Y. Feb. 25, 2025) (finding that a cease-and-desist letter
sent after termination did not constitute an adverse employment action where the letter (1)
directed the plaintiff to cease and desist from making false and defamatory statements, and (2)
explicitly stated that it was not intended to interfere with any claims to the EEOC); Small v.
Garland, 18-CV-5659, 2021 WL 1226979, at *22 (S.D.N.Y. Mar. 31, 2021) (finding that a cease
and desist memorandum was “not an adverse employment action that could form the basis of a
retaliation claim on its own” where it was sent at the outset of an investigation telling the victim
and accused harasser to cease interacting with one another and was not maintained in personnel
records). Although Plaintiff fails to provide the Court with the cease-and-desist letter, the email
that attached the cease-and-desist letter clearly demands that Plaintiff stop any activities that
“constitute harassment, intimidation and defamation” against Defendant Geodis. (Dkt. No. 25 at
91.) Third, the undersigned notes that Plaintiff fails to allege facts plausibly suggesting that
Defendants were aware of Plaintiff’s alleged protected activity in the filing of his NYSDHR
complaint. On May 2, 2023, the NYSDHR returned Plaintiff’s submission because the narrative
failed to allege that Plaintiff was discriminated against on the basis of his disability. (Dkt. No.
25 at 33.) For each of these reasons, I find that Plaintiff has failed to allege an ADA retaliation
claim based on his NYSDHR complaint and the cease-and-desist letter that he received.
Moreover, to the extent that the Amended Complaint is liberally construed as alleging
that the adverse action is (1) Defendant Geodis’s refusal to give Plaintiff a termination letter, or
(2) the non-criminal police report of January 12, 2023, I recommend that it be dismissed for
failure to state a claim upon which relief may be granted because both of these alleged adverse
actions occurred before Plaintiff filed the NYSDHR complaint. Further, as set forth above,
Plaintiff fails to allege facts plausibly suggesting that Defendant Geodis was aware of Plaintiff’s
NYSDHR complaint given that the complaint was returned to Plaintiff by the NYSDHR. (Dkt.
No. 25 at 33.)
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accommodation; and (4) he suffered adverse employment action because of his disability.” Sista
v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)). “In his Amended Complaint,
Plaintiff alleges that he has depression and a speech impairment. However, Plaintiff's
allegations, without more, are insufficient to establish that Plaintiff is disabled.” Malave-Sykes v.
Children’s Home of Wyoming Conference, 25-CV-1547, 2026 WL 292071, at *3 (N.D.N.Y. Feb.
4, 2026) (Nardacci, J.) (citing Fitzgerald v. We Co., 20-CV-5260, 2022 WL 952963, at *7
(S.D.N.Y. Mar. 30, 2022) (explaining that a plaintiff claiming to be disabled must “(1) show that
[he] suffers from a physical or mental impairment; (2) identify the activity claimed to be
impaired, and establish that it constitutes a major life activity; and (3) show that [his] impairment
‘substantially limits’ the major life activity in question”)); see (Dkt. No. 23 at ¶¶ 29-30; Dkt. No.
25 at 15 [alleging that Plaintiff’s “disability involves a speech impairment and depression”].)
Additionally, even if Plaintiff had sufficiently alleged that he was disabled, Plaintiff fails to
allege any facts from which the Court could plausibly infer that he was terminated because of his
disability.
D. 	FLSA Claim
In general, the FLSA requires that employers pay employees a minimum wage and
provide overtime pay. See Locke v. St. Augustine's Episcopal Church, 690 F. Supp. 2d 77, 84
(E.D.N.Y. 2010). A plaintiff asserting a claim under the FLSA must demonstrate that he is an
“employee,” as defined by the FLSA, of “an enterprise engaged in commerce.” Fermin v. Las
Delicias Peruanas Restaurant, Inc., 93 F. Supp. 3d 19, 31-32 (E.D.N.Y. 2015) (citing 29 U.S.C.
§§ 206(a), 207(a)); Padilla v. Manlapaz, 643 F. Supp. 2d 298, 299 (E.D.N.Y. 2009). The FLSA
defines an employee as “any individual employed by an employer.” Fermin, 93 F. Supp. 3d at
32 (citing 29 U.S.C. § 203(e)(1)).
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Under the FLSA, a business is “an enterprise engaged in commerce” when it “has
employees engaged in commerce or in the production of goods for commerce, or [ ] has
employees handling, selling, or otherwise working on goods or materials that have been moved
in or produced for commerce . . . [and has] gross volume of sales made or business done . . . not
less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i)-(ii); see also Padilla, 643 F. Supp. 2d at 300.
In this context, commerce means interstate commerce. 29 U.S.C. § 203(b).
Plaintiff fails to allege facts plausibly suggesting that Defendant Geodis meets the
$500,000 gross annual sales or business threshold. Alternatively, Plaintiff also fails to plead that
he was engaged in commerce or in the production of goods for commerce. See Sanchez, 643 F.
Supp. 3d at 367 (defining “commerce” as “trade, commerce, transportation, transmission, or
communication” among several states or between any state and any place outside of it) (quoting
29 U.S.C. § 203(b)). Plaintiff’s Amended Complaint fails to indicate whether Plaintiff traveled
outside of New York as part of his job, whether he had any contact with out-of-state customers
or businesses, or whether the objects he used were delivered from outside New York State.
To the extent that Plaintiff brings FLSA claims against Defendant Conklin, Plaintiff fails
to sufficiently allege that Defendant Conklin exercised the requisite level of control to qualify as
an employer under the FLSA. “The FLSA permits an individual within a company that employs
a worker to be held personally liable for damages as that worker’s employer.” Nokaj v. Pappas
New York, 24-CV-1076, 2025 WL 2380403, at *2 (S.D.N.Y. Aug. 15, 2025) (internal quotation
marks, citation, and alterations omitted). “Courts consider four factors to determine whether
someone is an employer on a theory of formal control: ‘whether the alleged employer (1) had the
power to hire and fire the employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of payment, and (4) maintained
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employment records.’” Nokaj, 2025 WL 2380403, at *3 (quoting Carter v. Dutchess Cmty.
Coll., 735 F.2d 8, 12 (2d Cir. 1984)).
Here, while Plaintiff alleges that Defendant Conklin was a human resources
representative of Defendant Geodis and summoned Plaintiff to a private office, Plaintiff fails to
allege whether Defendant Conklin supervised his work, had the authority to hire and fire
employees, determine his rate of pay, maintain employee records, or control his work schedule.
See Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir. 2013) (affirming CEO as “employer”
subject to FLSA, noting that “[a] person exercises operational control over employees if his or
her role within the company, and the decisions it entails, directly affect the nature or conditions
of the employees’ employment” but the person does not need to “directly come into contact with
the [employees], their workplaces, or their schedules”).
Moreover, Plaintiff appears to be seeking a prospective wage increase, which is not
covered by the FLSA. Plaintiff does not allege that he was denied minimum wage, overtime
compensation, or any shortfall in pay for hours worked. (See generally Dkt. No. 23.)
For each of these reasons, I recommend that Plaintiff’s FLSA claim be dismissed for
failure to state a claim upon which relief may be granted.
E. 	Other Claims
To the extent that the Amended Complaint and Plaintiff’s Sur-reply are liberally
construed as asserting (1) a claim of Title VII race discrimination, (2), a claim of Title VII
gender discrimination, and (3) a claim that Plaintiff’s right to due process was violated, I
recommend that those claims be dismissed for failure to state a claim upon which relief may be
granted.
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First, with respect to a Title VII race or discrimination claim, Plaintiff fails to allege facts
plausibly suggesting that he was discriminated against on the basis of his race or his gender. As
was set forth by the undersigned in the Order and Report-Recommendation dated January 7,
2025, Plaintiff’s allegations that (1) he is Black and management, Ms. Rivera, and Ms. Olk are
white, and (2) he is male and Ms. Rivera and Ms. Olk are female, and therefore his termination
must have been discriminatory on the basis of race and gender are insufficient to plausibly raise a
reasonable inference of discriminatory animus. (Dkt. No. 13 at 7 [citing Cole v. Bd. of Trustees
of Northern Ill. Univ., 838 F.3d 888, 900 (7th Cir. 2016) (“[s]imply being a member of a
protected class, without something more to link that status to the action in question, is not
enough to raise a reasonable inference of discriminatory animus.”); Canady v. Union 1199/SEIU,
527 F. Supp. 3d 515, 516 (W.D.N.Y. 2021) (“simply falling into a protected category is not
enough”); Perry v. Cnty. of Westchester, 06-CV-3000, 2008 WL 11438085, at *17 (S.D.N.Y.
Mar. 31, 2008) (“Plaintiff’s membership in a protected class in and of itself does not establish
discriminatory animus”)].)
Second, with respect to a due process claim, Plaintiff fails to allege facts plausibly
suggesting that Defendants are state actors. The “Fourteen[th] Amendment[ is] inapplicable here
because Defendants are a private corporation and a private individual, not state actors.” Pierre v.
Capital One Financial Corp., 21-CV-0030, 2022 WL 801321, at *4 (E.D.N.Y. Mar. 16, 2022)
(citing Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005) (“[A] litigant
claiming that his constitutional rights have been violated must first establish that the challenged
conduct constitutes state action.”); Mathura v. Council for Hum. Servs. Home Care Servs., Inc.,
107 F.3d 3 (Table), 1997 WL 62940, at *1 (2d Cir. 1997) (“Purely private employment . . .
creates no property interest to which procedural due process protections apply”); McClary v.
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O’Hare, 786 F.2d 83, 88 (2d Cir. 1986) (explaining that substantive due process protects
individuals only against government actions)).
Further, to the extent that the Amended Complaint is construed as asserting any claims
pursuant to New York State law, I recommend that the Court decline to exercise supplemental
jurisdiction. See 28 U.S.C. § 1367(c)(3) (providing that a district court “may decline to exercise
supplemental jurisdiction over [pendent state law claims] if . . . the district court has dismissed
all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction
over the remaining state-law claims.”); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir.
1986) (citing Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974)) (holding that “federal
courts, absent exceptional circumstances, should abstain from exercising pendent jurisdiction
when federal claims in a case can be disposed of by summary judgment”).
F. 	Defendant Geodis’s Motion to Dismiss
Because I recommend dismissal of this action for failure to state a claim upon which
relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B), I recommend that Defendant
Geodis’s motion to dismiss (Dkt. No. 5) be denied as moot. However, for the sake of
completeness, the undersigned considered Defendant Geodis’s arguments.6
6 	In determining whether an action “fails to state a claim on which relief may be granted”
under 28 U.S.C. § 1915(e)(2)(B), courts use the standard established for Federal Rule of Civil
Procedure 12(b)(6). See, e.g., Sykes v. Bank of Am., 723 F.3d 399, 401, 403 (2d Cir. 2013)
(using the Rule 12(b)(6) standard to review a sua sponte dismissal for failure to state a claim
under 28 U.S.C. § 1915(e)(2)(B)(ii)). As a result, the undersigned does not analyze Defendant
Geodis’s arguments related to failure to state a claim upon which relief may be granted because
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First, the undersigned rejects Defendant Geodis’s argument that Plaintiff’s Amended
Complaint was untimely filed and should be dismissed on this basis. (Dkt. No. 24 at 4.) On
October 16, 2025, Judge Suddaby granted Plaintiff leave to file an amended complaint within
thirty days from the date of his order. (Dkt. No. 20.) On November 4, 2025, Plaintiff filed a
motion to amend. (Dkt. No. 21.) On November 10, 2025, the undersigned denied Plaintiff’s
motion as moot and directed Plaintiff to file the amended complaint pursuant to Judge Suddaby’s
order. (Dkt. No. 22.)
Thirty days after Judge Suddaby’s order was November 15, 2025, which was a Saturday.
On Tuesday, November 18, 2025, the Amended Complaint was filed. (Dkt. No. 23.) However,
Plaintiff’s Amended Complaint appears to have been mailed on November 15, 2025 (Dkt. No. 23
at 59), and given that the Amended Complaint was filed only two business days after the
expiration of Judge Suddaby’s deadline, I recommend that the Court accept Plaintiff’s pro se
Amended Complaint for consideration.
Second, the undersigned rejects Defendant Geodis’s argument that Plaintiff’s Title VII
and ADA claims should be dismissed as untimely. As documented by the submitted evidence,
the EEOC issued Plaintiff a right-to-sue letter on August 6, 2024. (Dkt. No. 23 at 53.) The letter
itself states that Plaintiff had 90 days from the date of receipt of that letter, and notes that receipt
“generally occurs on the date that you (or your representative) view this document.” (Id.)
Further guidance appended to the letter clarifies that the relevant date is when “you (or your
representative) opened this email or mail.” (Dkt. No. 23 at 54.) “As a result, the fact that the
doing so would be duplicative of the analysis set forth above in Parts III.A-E of this Report and
Recommendation.
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letter is dated [August 6, 2024], is not dispositive of the date of receipt.” Lia-Basile v. Cnty. of
Albany, 25-CV-0291, 2025 WL 3019150, at *8 (N.D.N.Y. Oct. 29, 2025) (Suddaby, J.).
The “fact that Plaintiff was sent [an] email on August 6, 2024, [notifying him that there
was a new document in his EEOC folder related to his relevant charge], is not proof that he
viewed or opened that email on that date, and it is the viewing or opening that appears to control
the definition of ‘receipt’ under the EEOC’s policies.” Lia-Basile, 2025 WL 3019150, at *8.
Plaintiff alleges he received the EECO right-to-sue letter by mail on August 9, 2024.
(Dkt. No. 10 at 4.) “Under the circumstances and affording special deference to Plaintiff's pro se
status, Plaintiff has at the very least plausibly alleged that []he did not receive the right-to-sue
letter (under the meaning discussed above) until [August 9], 2024. Accordingly, h[is] filing of
the Complaint on [November 7, 2024], was at least facially timely.” Lia-Basile, 2025 WL
3019150, at *8.7
As a result, I recommend that to the extent the Court considers Defendant Geodis’s
motion to dismiss, it deny the motion seeking dismissal of Plaintiff’s ADA and Title VII claims
as untimely, but that Defendant Geodis be permitted to renew its motion on this issue (as one for
summary judgment) at a later date if warranted by the evidence.
Third, with respect to Plaintiff’s FLSA claim, I reject Defendant Geodis’s argument that
the Court should dismiss the claim because it exceeded the scope of the Court’s leave to amend.
(Dkt. No. 24 at 4-5.) Judge Suddaby’s order of October 16, 2025, cautioned Plaintiff that any
amended complaint “must cure the pleading defects identified in the Report-Recommendation.”
(Dkt. No. 20.) Moreover, Judge Suddaby’s Order adopting the undersigned’s Report and
7 	This finding, made at such a preliminary stage based on limited and somewhat conflicting
information, might be subject to change if discovery reveals evidence that suggests Plaintiff in
fact was in receipt of the right-to-sue notice at an earlier date.
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Recommendation dated January 7, 2025, permitted Plaintiff to file “an AMENDED
COMPLAINT that cures the pleading defects identified in the Report-Recommendation.” (Dkt.
No. 14 at 2.) Neither of Judge Suddaby’s orders expressly limited Plaintiff to file an amended
complaint that only cured the pleading defects. Moreover, unrepresented litigants are entitled to
“a certain liberality with respect to procedural requirements.” Mount v. Book-of-the-Month Club,
Inc., 555 F.2d 1108, 1112 (2d Cir. 1977); see also Moates v. Barkley, 147 F.2d 207, 209 (2d Cir.
1998) (“[P]ro se litigants are afforded some latitude in meeting the rules governing
litigation[.]”).
Fourth, in the alternative to the reasons set forth above in Part III.D. of this Report and
Recommendation, I recommend that Plaintiff’s FLSA claim be dismissed as time-barred for the
reasons set forth in Defendant Geodis’s reply memorandum of law. (Dkt. No. 24 at 6-7.) The
Amended Complaint does not allege that Defendant Geodis acted willfully, and thus, a two-year
limitations period applies to Plaintiff’s FLSA claim. Whiteside v. Hover-Davis, Inc., 995 F.3d
315, 321 (2d Cir. 2021) (citing Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1008 (2d Cir. 1991)).8
As Defendant Geodis sets forth, relation back pursuant to Fed. R. Civ. P. 15(c)(1)(B) is
inapplicable to Plaintiff’s FLSA claim because the original Complaint set forth allegations of
discrimination and retaliation based on race, disability, and gender, none of which involved
8 	“An employer willfully violates the FLSA when it ‘either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by’ the Act.” Young v. Cooper
Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009) (quoting McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 133, 108 S.Ct. 1677 (1988)). “Mere negligence is insufficient.” Young, 586 F.3d
at 207. That is, “if an employer acts unreasonably, but not recklessly, in determining its legal
obligation, its action should not be considered willful.” Reich v. Waldbaum, Inc., 52 F.3d 35, 39
(2d Cir. 1995) (internal quotation marks and alterations omitted) (quoting McLaughlin, 486 U.S.
at 135 n.13, 108 S.Ct. 1677).
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29
Plaintiff’s compensation. See Bilal-Edwards v. United Planning Organization, 15 F. Supp. 3d 1,
17-18 (D.D.C. 2013).
As a result, I recommend that to the extent the Court considers Defendant Geodis’s
motion to dismiss, it grant the motion insofar as it seeks dismissal of Plaintiff’s FLSA claim as
untimely.
IV. 	OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se
litigant without granting leave to amend at least once “when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, where “the problem
with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).9
9 	See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
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30
I recommend that the Court decline to grant Plaintiff leave to amend. Plaintiff has
already amended his pleading once. (Dkt. Nos. 1, 23.) Any additional amendments are not likely
to be productive and will further clog the wheels of justice. See Official Comm. of Unsecured
Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168 (2d Cir. 2003)
(quoting Dluhos v. Floating & Abandoned Vessel, Known as “New York,” 162 F.3d 63, 69 (2d
Cir. 1998)) (finding that the “District Court did not abuse its discretion in denying [the plaintiff]
leave to amend the complaint because there was a ‘repeated failure to cure deficiencies by
amendments previously allowed.’ ”); Salinger v. Projectavision, Inc., 972 F. Supp. 222, 236
(S.D.N.Y. 1997) (“Three bites at the apple is enough.”).
ACCORDINGLY, it is
ORDERED that the Clerk of the Court shall add Kimberly Conklin to the docket of this
action as a defendant; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD
Plaintiff’s Amended Complaint (Dkt. No. 23) because it fails to state a claim upon which relief
may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
RECOMMENDED that the Court DENY as moot Defendant Geodis’s motion to
dismiss (Dkt. No. 5); and it is further respectfully
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on Plaintiff, along with copies of the unpublished decisions cited herein in
accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)
(per curiam).
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31
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.10 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
Dated: February ___, 2026
Binghamton, New York
10 	If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
18
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Batista v. Consolidated Edison of New York, Inc., Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1042338
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Anthony BATISTA, Plaintiff,
v.
CONSOLIDATED EDISON OF
NEW YORK, INC., Defendant.
24-CV-0082 (VSB) (RFT)
|
Signed January 21, 2025
|
Filed January 22, 2025
Attorneys and Law Firms
James Mermigis, Law Office of James Mermigis, Syosset,
NY, for Plaintiff.
Ivan A. Mendez Jr., Consolidated Edison Company of New
York, Inc., New York, NY, for Defendant.
REPORT AND RECOMMENDATION
ROBYN F. TARNOFSKY, United States Magistrate Judge
*1 TO THE HONORABLE VERNON S. BRODERICK,
UNITED STATES DISTRICT JUDGE:
Plaintiff Anthony Batista brings claims under federal, state,
and city law against Defendant Consolidated Edison of
New York, Inc. (“Con Edison”) for alleged employment
discrimination based on physical impairment, failure to
accommodate, and retaliation, in violation of federal, state,
and local law. (See generally ECF 17, Am. Compl.) Pending
before the Court is Defendant's motion to dismiss the
Amended Complaint (“AC”) pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure for failure to state a
claim. (See ECF 18, Mot. To Dismiss.) Having carefully
reviewed the parties’ submissions, and for the reasons set
forth herein, I respectfully recommend that Defendant's
motion be GRANTED.
FACTUAL BACKGROUND
For purposes of the pending motion to dismiss, the Court must
accept Plaintiff's well-pleaded allegations as true and draw
all reasonable inferences in his favor. See City of Providence
v. BATS Glob. Mkts., Inc., 878 F.3d 36, 50 (2d Cir. 2017). I
summarize Plaintiff's allegations below.
Plaintiff was employed by Con Edison for over seventeen
years, and he worked as a District Manager just prior to his
termination on September 1, 2022. (See ECF 17, Am. Compl.
¶ 26.)
On October 22, 2021, Con Edison announced a COVID-19
vaccine mandate: all employees were required to receive the
COVID-19 vaccine by December 8, 2021 or be placed on
unpaid leave and prohibited from working. (See id. ¶ 36.) Con
Edison stated that medical and religious exemptions from the
COVID-19 vaccine mandate were available. (See id. ¶ 37.)
On November 5, 2021, Plaintiff submitted a medical
exemption letter from his cardiologist, stating that Plaintiff
was unable to comply with the COVID-19 vaccine mandate
due to a documented heart condition, myocarditis. (See id.
¶¶ 39-40, 43.) Con Edison temporarily approved Plaintiff's
medical exemption until April 18, 2022. (See id. ¶ 41.) On
April 19, 2022, Con Edison notified Plaintiff that his medical
exemption had ended and that he had to provide evidence of
his first COVID-19 vaccination by April 25, 2022. (Id. ¶ 42.)
Plaintiff responded on April 20, 2022 with an updated letter
from his cardiologist, again asking for a medical exemption
due to Plaintiff's myocarditis diagnosis. (See id. ¶ 43.)
On May 5, 2022, the U.S. Food and Drug Administration
(“FDA”) limited its authorization of the Johnson & Johnson
COVID-19 vaccine due to the risk of thrombosis, or
potentially life-threatening blood clots. (See id. ¶ 44.) Con
Edison never spoke with Plaintiff's cardiologist after the FDA
announced this limitation, nor did Con Edison discuss with
Plaintiff whether Con Edison could reasonably accommodate
his medical exemption request. (See id. ¶¶ 45, 49, 53-54.)
Plaintiff was subsequently terminated on September 1, 2022
and has suffered lost wages and benefits as well as emotional
distress. (See id. ¶¶ 56, 60-61.)
PROCEDURAL HISTORY
On October 31, 2023, the U.S. Equal Employment
Opportunity Commission (“EEOC”) issued a Right-To-Sue
Letter to Plaintiff. (See ECF 1-1, Letter.) On January 5, 2024,
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Plaintiff timely filed a complaint alleging claims arising out of
his employment with Con Edison. (See ECF 1, Compl.) 1 By
Order of Reference dated January 12, 2024, the Court referred
this case to me for general pretrial supervision. (See ECF 3,
Order.)
*2 On April 10, 2024, Defendant filed a motion to dismiss.
(See ECF 11, Mot. To Dismiss; ECF 12, Def.’s Memo.
in Supp. of Mot. To Dismiss.) In support of the motion,
Con Edison annexed a declaration from Iván A. Mendez,
Jr., Associate Counsel with the Law Department at Con
Edison, which attached as an exhibit an email sent to Plaintiff
on June 23, 2022 by Defendant's Accommodation Review
Committee, addressing Plaintiff's medical accommodation
request. (See ECF 13, Declaration of Iván A. Mendez, Jr., Ex.
A.)
On April 12, 2024, the Court issued an order permitting
Plaintiff to file the AC pursuant to Rule 15(a)(1)(B) of the
Federal Rules of Civil Procedure. (See ECF 14, Order.) That
same day, the order of reference to me was amended to include
making recommendations on dispositive motions. (See ECF
15, Order.)
Plaintiff timely filed the AC on May 1, 2024. (See ECF
17, Am. Compl.) Defendant subsequently filed a motion
to dismiss on May 16, 2024, annexing the email from
Defendant's Accommodation Review Committee to Plaintiff.
(See ECF 18, Mot. To Dismiss; ECF 19 Def.’s Memo. in Supp.
of Mot. To Dismiss; ECF 20, Second Declaration of Iván A.
Mendez, Jr., Ex. A (“Second Mendez Declaration”).) Plaintiff
filed a memorandum of law opposing the motion to dismiss
on June 13, 2024. (See ECF 23, Pl.’s Opp.) Defendant filed
its reply brief on July 9, 2024. (See ECF 28, Def.’s Reply.)
LEGAL FRAMEWORK ON A MOTION TO DISMISS
Judgment on a Rule 12(b)(6) motion for “failure to state
a claim upon which relief can be granted” is appropriate
when the complaint does not “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). 2 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a
Rule 12(b)(6) motion for failure to state a claim, the Court
“must accept as true all of the allegations contained in a
complaint,” but “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Id. Determining whether a complaint states
a plausible claim is a “context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
In evaluating a Rule 12(b)(6) motion, “a district court
may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
Extrinsic evidence may not be considered by the court,
“[b]ecause a Rule 12(b)(6) motion ... challenges the complaint
as presented by the plaintiff, taking no account of its basis in
evidence.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir.
2016). “Where a document is not incorporated by reference,
the Court may nevertheless consider it where the complaint
relies heavily upon its terms and effect, thereby rendering the
document integral to the complaint.” DiFolco, 622 F.3d at
111.
DISCUSSION
Defendants seek dismissal of the Complaint pursuant to Rule
12(b)(6) on the ground that Plaintiff fails adequately to plead
each of his claims. I set out below the law relevant to each of
his causes of action and discuss the adequacy of his factual
allegations.
I. Extrinsic Evidence
*3 In support of its motion to dismiss, Defendant includes
an email sent to Plaintiff from Defendant's Accommodation
Review Committee concerning Plaintiff's accommodation
request for a medical accommodation. (See ECF 20,
Second Mendez Decl. Ex. A.) The email purports to
reflect a communication with Plaintiff's doctor about the
accommodation request. Plaintiff did not attach the document
to the AC. He did not incorporate the document by reference.
Nor did he rely on it in setting out his description of the
events preceding his termination. Indeed, Plaintiff's allegation
that Defendant never spoke to his physician after a May
2022 announcement from the US Centers for Disease Control
and Prevention about risks associated with the COVID-19
vaccine (see ECF 17, Am. Compl. ¶¶ 44-45) contradicts
the email, which suggests that Defendant communicated
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with Plaintiff's physician about the accommodation request. I
therefore conclude that the email is not integral to the AC and
that it falls within no exception that would allow the Court
to deviate from the rule that extrinsic documents may not be
considered on a motion to dismiss, see Lipsman v. Cortes-
Vazquez, No. 21-CV-4631 (JMF), 2021 WL 5827129, at *2
n.2 (S.D.N.Y. Dec. 7, 2021). I therefore do not consider the
email in analyzing whether Plaintiff has adequately supported
his claims.
II. Plaintiff Fails To State a Claim for Disability
Discrimination Under the ADA
A. Legal Framework for ADA Discrimination Claims
“The ADA prohibits employment discrimination against a
qualified individual on the basis of disability.” Sharikov v.
Philips Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir.
2024). “The elements of an ADA [discrimination] claim
are that: (1) the employer is subject to the ADA, (2) the
employee is disabled or is perceived to be disabled as defined
by the ADA, (3) the employee is qualified to perform the
essential functions of the job, with or without reasonable
accommodations, and (4) the employee suffers an adverse
employment action because of his disability.” Id.
1. An Employer Subject to the ADA
“To be subject to the terms of the ADA, the defendant must be
an employer, which, under the statute, is defined as a person
engaged in an industry affecting commerce who has fifteen
or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar
year.” Pavel v. Plymouth Mgmt. Grp., Inc., 198 F. App'x 38,
40-41 (2d Cir. 2006) (quoting 42 U.S.C. § 12111(5)(A)).
2. An Employee Who Is Disabled
or Perceived To Be Disabled
As relevant here, the ADA defines a disability as “a physical
or mental impairment that substantially limits one or more
major life activities of such individual” or “being regarded
as having such an impairment.” Newell v. State Univ. of
New York Westchester Cmty. Coll., No. 22-CV-08524 (PMH),
2023 WL 4082030, at *3 (S.D.N.Y. June 20, 2023) (quoting
42 U.S.C. § 12102(1)). “The ADA contains a non-exhaustive
list of major life activities, which includes caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating,
and working.” Anderson v. City of New York, 712 F. Supp.
3d 412, 432 (S.D.N.Y. 2024) (quoting 42 U.S.C. § 12102(2)
(A)). “A major life activity also includes the operation
of a major bodily function, including ... functions of the
immune system ... [and] circulatory ... functions.” 42 U.S.C.
§ 12102(2)(B) (2009); see also Devita v. Mount Sinai Hosp.,
No. 22-CV-9826 (LTS), 2024 WL 3046121, at *7 (S.D.N.Y.
June 18, 2024) (requiring a showing of substantial limitation
of “any major life function or activity such as the operation of
a major bodily function”). (See ECF 1-1, Letter at 4.) “Factors
to consider in determining whether a major life activity
is substantially limited include: the nature and severity of
the impairment; its duration or expected duration; and the
existence of any actual or expected permanent or long term
impact.” Anderson, 712 F. Supp. 3d at 432-33. “The term
substantially limits shall be construed broadly in favor of
expansive coverage ... and is not meant to be a demanding
standard,” Patterson v. EmblemHealth Inc., No. 22-CV-2177
(LTS), 2023 WL 5671531 at *4 (S.D.N.Y. Sept. 1, 2023),
but “vague factual allegations [that] do not describe the
conditions or disorders causing the alleged impairments,
or how these impairments substantially impacted several
major life activities or [the plaintiff's] ability to work” are
insufficient to survive a motion to dismiss. Anderson, 712 F.
Supp. 3d at 433.
3. An Employee Who Is Qualified To
Perform His Essential Job Functions With
or Without Reasonable Accommodations
*4 “The ADA does not define the term essential function,
but EEOC regulations indicate that the term encompasses
the fundamental job duties of the employment position.”
Schwartz v. Middletown City Sch. Dist., No. 23-CV-1248
(KMK), 2024 WL 1257095, at *4 (S.D.N.Y. Mar. 25, 2024).
4. An Employee Who Suffers an Adverse Employment
Action Because of His Disability or Perceived Disability
“[T]he plaintiff [must] allege that he was treated less well
because of his disability.” Gerard v. 1199 Nat'l Benefit
Funds, No. 23-CV-7950 (DEH), 2024 WL 4188469, at *5
(S.D.N.Y. Sept. 13, 2024). “Generally-applicable COVID-19
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vaccine mandates have been repeatedly upheld as permissible
conditions of employment.” Id.
B. Plaintiff Fails Adequately To Allege that He Is
Disabled Under the ADA
Defendant does not appear to challenge that it is subject to the
ADA, that Plaintiff was able to perform the essential functions
of his job, or that Plaintiff's termination was an adverse work
event. Defendant argues that Plaintiff has not sufficiently
pleaded that he is disabled under the ADA, because he does
not allege that his myocarditis limits any major life activity,
and that Plaintiff has not established the requisite causation
between his alleged disability and his termination. (See ECF
19, Def.’s Mem. in Supp. of Mot. To Dismiss at 4-9; ECF
28, Def.’s Reply at 3.) Plaintiff responds that he plausibly
alleged that he is disabled under the ADA because of his
myocarditis diagnosis (see ECF 23, Pl.’s Opp. at 8-9); and that
he plausibly pleaded the connection between his disability
and his termination (see id.at 9).
Plaintiff alleges that he is disabled within the meaning of the
ADA because he was diagnosed with myocarditis, which he
argues constitutes a physical impairment under the ADA's
definition of disability. (See ECF 17, Am. Compl. ¶¶ 4-6; ECF
23 Pl.’s Opp. at 8-9.) However, Plaintiff fails to allege that
his myocarditis “substantially limited any major life function
or activity.” Devita, 2024 WL 3046121, at *7. In Devita, the
Court concluded that the “[p]laintiff failed to state a viable
ADA claim” because she neglected to allege how her “pre-
existing, debilitating heart condition ... substantially limited
any major life function or activity,” including “the operation
of a major bodily function.” Id. Like the plaintiff in Devita,
Plaintiff had successfully performed his duties working for
Con Edison for several years prior to the implementation of
Con Edison's vaccination policy (see ECF 17, Am. Compl.
¶¶ 33), which “cuts against the plausibility of [his] disability
claim.” Devita, 2024 WL 3046121, at *7. Plaintiff also fails to
“supply any facts that would plausibly suggest that [he] was
regarded by Defendant[ ] as having such an impairment under
the meaning of the ADA.” Id.
Accordingly, Plaintiff has not sufficiently alleged that he was
disabled within the meaning of the ADA, and so his ADA
discrimination claim should be dismissed on that basis alone.
See id.
III. Plaintiff Fails To State a Claim for Failure To
Accommodate Under the ADA
A. Legal Standard for ADA Failure To Accommodate
Claims
“A plaintiff states a prima facie failure to accommodate
claim by demonstrating that (1) plaintiff is a person with a
disability under the meaning of the ADA; (2) an employer
covered by the statute had notice of his disability; (3)
with reasonable accommodation, plaintiff could perform
the essential functions of the job at issue; and (4) the
employer has refused to make such accommodations.”
Lake v. HealthAlliance Hosp. Broadway Campus, No. 22-
CV-656, 2024 WL 3226273, at *5 (N.D.N.Y. June 27,
2024) (quoting McMillan v. City of New York, 711 F.3d
120, 125-26 (2d Cir. 2013)). Alternatively, the plaintiff can
state a claim by meeting the first three criteria and by
showing that the defendant failed to engage in the interactive
process. See Gerard, 2024 WL 4188469, at *6. As is
required for discrimination claims, “a showing that plaintiff
is disabled within the meaning of the statute is the common
denominator.” Lake, 2024 WL 3226273, at *5.
B. Analysis of Plaintiff's ADA Failure To Accommodate
Claim
*5 Plaintiff has failed to allege that he has a disability
under the ADA. This issue is dispositive for Plaintiff's failure
to accommodate claim, and so it is unnecessary to address
the remaining elements. See Davis v. State of N.Y., No. 23-
CV-00116 (JLS) (JJM), 2023 WL 10351576, at *3 (W.D.N.Y.
Dec. 20, 2023) (“Whether plaintiff has plausibly alleged a
substantial limitation ... is a threshold question that must be
determined in order for [the] claim[ ] to proceed.”), report and
recommendation adopted, 2024 WL 1016211 (W.D.N.Y. Mar.
8, 2024); Wood v. ViacomCBS/Paramount, No. 22-CV-6323
(LTS) (KHP), 2024 WL 4451742, at *6 (S.D.N.Y. July 15,
2024) (“Because Plaintiff has failed to allege that he is a
person with a disability within the meaning of the ADA, he
does not satisfy the requirements for a failure to accommodate
claim. Accordingly, the failure to accommodate claim also
should be dismissed.”), report and recommendation adopted,
2024 WL 4263117 (S.D.N.Y. Sept. 23, 2024).
IV. Plaintiff Fails To State a Retaliation Claim Under the
ADA
A. Legal Standard for ADA Retaliation Claims
It is unlawful under the ADA for an employer “to coerce,
intimidate, threaten, or interfere with any individual in the
exercise or enjoyment of ... any right granted or protected
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by this chapter.” Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,
263 F.3d 208, 222 (2d Cir. 2001) (quoting 42 U.S.C. §
12203(b)). “To state an ADA retaliation claim, an employee
must show that [ ]he engaged in a protected activity, that
[ ]he suffered an adverse employment action, and that a
causal connection exists between that protected activity and
the adverse employment action.” Johnson v. Mount Sinai
Hosp., No. 23-466, 2024 WL 3289475, at *2 (2d Cir. July 3,
2024) (per curiam). An employee's activity is protected even
if “his condition was not a disability within the meaning of the
ADA,” so long as he alleges “that he possessed a good faith,
reasonable belief that the underlying challenged actions of
the employer violated” the ADA, Sarno v. Douglas Elliman-
Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999),
and that the “the employer understood, or could reasonably
have understood” that the employee believed the challenged
conduct was discriminatory. Trotter v. Nat'l Football League,
737 F. Supp. 3d 172, 182 (S.D.N.Y. 2024).
“With respect to causation,” a plaintiff must allege that, “but
for the protected activity, the adverse action would not have
been taken.” Johnson, 2024 WL 3289475, at *2.
B. Analysis of Plaintiff's ADA Retaliation Claim
Plaintiff alleges in the AC that “Defendant retaliated against
Plaintiff in the terms and conditions of his employment
on the basis of his disability.” (ECF 17, Am. Compl. ¶
73.) Critically, Plaintiff does not allege that he engaged in
any protected activity whatsoever. 3 That failure alone is
sufficient to warrant dismissal of his ADA retaliation claim.
See Smith v. City of New York, No. 12–CV–3250 (JMF),
2013 WL 1903856, at *5 (S.D.N.Y. May 8, 2013) (dismissing
complaint of pro se plaintiff who “checked off the box on the
form complaint provided by the Clerk of Court indicating that
she suffered retaliation” but “provide[d] absolutely no factual
support for that claim”).
V. The Court Should Decline To Exercise Supplemental
Jurisdiction Over Plaintiff's NYSHRL and NYCHRL
Claims 4
*6 If Your Honor agrees with my conclusion that Plaintiff
has failed to state a claim for violation of the ADA, I
respectfully recommend, for the reasons set forth below, that
the Court decline to exercise supplemental jurisdiction over
Plaintiff's state and local law claims.
A court with original jurisdiction over claims in a case “shall
have supplemental jurisdiction over all other claims that are so
related to claims in the action ... that they form part of the same
case or controversy under Article III.” F5 Cap. v. Pappas,
856 F.3d 61, 77 (2d Cir. 2017) (quoting 28 U.S.C. § 1367(a)).
Claims are considered “part of the same case or controversy
if they derive from a common nucleus of operative fact.”
Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234,
245 (2d Cir. 2011). Plaintiff's state law claims form part of
the same case or controversy as the federal claims that I have
recommended be dismissed.
Courts have discretion when deciding whether to exercise
supplemental jurisdiction over a state and local law claim,
see City of Chicago v. Int'l Coll. of Surgeons, 522 U.S.
156, 173-74 (1997), but when those claims meet the
“same case or controversy” test under section 1367(a), “the
discretion to decline supplemental jurisdiction is available
only if founded upon an enumerated category of subsection
1367(c).” Shahriar, 659 F.3d at 245. As relevant here,
subsection 1367(c) permits a court to decline to exercise
supplemental jurisdiction if it “has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Therefore, the Court may exercise its discretion to decline
supplemental jurisdiction over Plaintiff's remaining state and
local law claims.
However, a court should not decline to exercise supplemental
jurisdiction after dismissing all claims over which it has
original jurisdiction absent a determination that exercising
supplemental jurisdiction would not promote “economy,
convenience, fairness, and comity.” Jones v. Ford Motor
Credit Co., 358 F.3d 205, 214 (2d Cir. 2004) (citing United
Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)).
Both the Second Circuit and the Supreme Court have “held
that when the federal claims are dismissed the state claims
should be dismissed as well.” In re Merrill Lynch Ltd. P'ships
Litig., 154 F.3d 56, 61 (2d Cir. 1998) (quoting Gibbs, 383
U.S. at 726). While this rule is not mandatory, “the Supreme
Court has stated that in the usual case in which all federal-
law claims are eliminated before trial, the balance of factors
to be considered under the pendant jurisdiction doctrine –
judicial economy, convenience, fairness and comity – will
point toward declining jurisdiction over the remaining state-
law claims.” In re Merrill Lynch, 154 F.3d at 61 (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988)).
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Having considered these factors, I respectfully recommend
that Your Honor decline to exercise supplemental jurisdiction
over the NYSHRL and NYCHRL claims. 5 Resolution of
those claims in state court would “avoid needless decisions
of state [and city] law by this Court, which” would promote
“the interests of comity and justice.” Moran v. Tryax Realty
Mgmt., Inc., No. 15-CV-8570 (RJS), 2016 WL 3023326, at
*4 (S.D.N.Y. May 23, 2016) (quoting Gibbs, 383 U.S. at 726).
This case is in its infancy and “[t]his Court is, therefore, no
more familiar with the facts and legal issues of this case than
any court would be at the pleading stage.” Davila v. Gutierrez,
330 F. Supp. 3d 925, 944 (S.D.N.Y. 2018), aff'd, 791 F. App'x
211 (2d Cir. 2019). And declining to exercise supplemental
jurisdiction would not be unfair, because “the New York
state court system ... is extremely capable” of addressing the
NYSHRL and NYCHRL claims. Id.
VI. Leave To Amend
*7 If Your Honor agrees that Plaintiff has failed to state a
claim for violation of the ADA, I respectfully recommend
that he be permitted leave to file a second amended complaint
even though he has not requested leave to amend and even
though the Court is not obligated to grant leave to amend
sua sponte. See, e.g., Trautenberg v. Paul, Weiss, Rifkind,
Wharton & Garrison L.L.P., 351 F. App'x 472, 474 (2d Cir.
2009) (holding, where the plaintiff did not seek leave to
amend in opposition to the motion to dismiss, that the district
court did not abuse its discretion by failing to grant him
such leave sua sponte). It is true that a “plaintiff need not be
given leave to amend” where, as here, he “fails to specify ...
how amendment would cure the pleading deficiencies in [his]
complaint.” Moniodes v. Autonomy Cap. (Jersey) LP, No. 20-
CV-05648 (GHW), 2021 WL 3605385, at *8 (S.D.N.Y. Aug.
11, 2021). However, “[i]n this circuit, ‘[i]t is the usual practice
upon granting a motion to dismiss to allow leave to replead.’ ”
Leneau v. Ponte, No. 16-CV-0776 (GHW), 2018 WL 566456,
at *18 (S.D.N.Y. Jan. 25, 2018) (quoting Cortec Indus., Inc.
v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)).
Of course, “leave to amend a complaint may be denied
when amendment would be futile.” Tocker v. Philip Morris
Cos., 470 F.3d 481, 491 (2d Cir. 2006); see also Moniodes,
2021 WL 3605385, at *8. Here, Plaintiff may be able to
plead additional facts demonstrating that his myocarditis
substantially limited major life activities. See, e.g., Patterson,
2023 WL 5671531 at *5 (finding that the plaintiff had
adequately alleged the existence of a physical impairment
– his ongoing respiratory illness – that substantially limited
two statutorily recognized major life activities, breathing and
sleeping); Beshaw v. MVP Service Corp., No. 21-CV-584
(GLS/CFH), 2022 WL 4094451, at *3 (N.D.N.Y. Sept. 7,
2022) (classifying the plaintiff as disabled due to pulmonary
and cardiac sarcoidosis due to the described effects on
respiratory and circulatory functions). Plaintiff may also be
able to plead additional facts that demonstrate he engaged
in protected activity believing his employer's conduct to be
discriminatory and that his employer was on notice of this
belief and activity. Such allegations could support a claim for
violation of the ADA if Plaintiff can allege facts supporting
a plausible inference that he was terminated because of
his disability or his protected activity and not due to his
refusal to be vaccinated. This is a tall order: COVID-19
vaccination policies that cover all employees have repeatedly
been upheld as a permitted condition of employment. See,
e.g., Gerard, 2024 WL 4188469, at *5; Sharikov v. Philips
Med. Sys. MR, 659 F. Supp. 3d 264, 281 (N.D.N.Y. March
7, 2023) (explaining that when an employer implements a
COVID-19 vaccination policy for all employees, under which
all unvaccinated employees may either seek and qualify for
a medical or religious exemption or be terminated, “[t]hese
facts cannot support a plausible inference that Plaintiff
would not have been terminated or subjected to an adverse
employment action but for a disability”) aff'd, 103 F.4th 159
(2d Cir. 2024) (“[S]everal district courts have held that ... an
employee who is discharged for refusing to comply with a
company-wide vaccination mandate ... fails to state a claim
under the ADA.”); Devita, 2024 WL 3046121, at *7 (holding
that the plaintiff had failed adequately to allege that her
engagement in protected activity following the denial of
her heart condition-based medical exemption was the “but-
for cause of termination”; she would have been terminated
regardless pursuant to her employer's COVID-19 vaccine
mandate due to her failure to get vaccinated).
CONCLUSION
For the foregoing reasons, I respectfully recommend that
Defendant's motion to dismiss be GRANTED but that
Plaintiff be granted leave to replead. If Your Honor adopts
this recommendation, I further respectfully recommend that
Plaintiff be given 30 days to file a second amended complaint.
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NOTICE OF PROCEDURE FOR
FILING OBJECTIONS TO REPORT
AND RECOMMENDATION
The parties shall have fourteen days (including weekends and
holidays) from service of this Report and Recommendation
to file written objections pursuant to 28 U.S.C. § 636(b)(1)
and Rule 72(b) of the Federal Rules of Civil Procedure to this
Report and recommendation. A party may respond to another
party's objections within fourteen days after being served with
a copy. Fed. R. Civ. P. 72(b)(2). Such objections, and any
response to objections, shall be filed with the Clerk of the
Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any
requests for an extension of time for filing objections must be
addressed to Judge Broderick.
THE FAILURE TO OBJECT WITHIN FOURTEEN DAYS
WILL RESULT IN A WAIVER OF OBJECTIONS AND
WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S.
140, 152 (1985).
All Citations
Slip Copy, 2025 WL 1042338
Footnotes
1 The AC asserts multiple claims, including employment discrimination, failure to accommodate, and retaliation
under Title I of the Americans with Disabilities Act of 1990 (“ADA”) (see ECF 17, Am. Compl. ¶¶ 62-76);
disability discrimination, failure to accommodate, and retaliation under the New York State Human Rights Law
(“NYSHRL”) (see ECF 17, Am. Compl. ¶¶ 77-87); and disability discrimination, failure to accommodate, and
retaliation under the New York City Human Rights Law (“NYCHRL”) (see ECF 17, Am. Compl. ¶¶ 88-115).
2 Unless indicated otherwise, internal quotation marks, citations, and alterations are omitted from quotations.
3 The only activity alleged in the AC that could qualify as protected activity is Plaintiff's filing of his complaint
with the EEOC, however, Plaintiff fails to allege that the EEOC complaint was filed prior to his termination on
September 1, 2022 (see ECF 17, Am Compl. ¶¶ 26, 60).
4 Plaintiff misreads Defendant's motion to dismiss, asserting that Defendant did not seek dismissal of his
NYSHRL and NYCHRL claims, and therefore Plaintiff did not address the substance of Defendant's
arguments that those claims should be dismissed. (See ECF 23, Pl.’s Opp. at 11.) Defendant's brief in
support of the motion to dismiss clearly states that Defendant seeks dismissal of Plaintiff's claims “under
all statutes.” (See generally ECF 19, Def.’s Memo. in Supp. of Mot. To Dismiss. at 7.) Defendant takes the
position that Plaintiff abandoned any argument that his NYSHRL and NYCHRL should survive the motion to
dismiss. (See ECF 28, Def.’s Reply at 1-2; id. at 1 n.1.) I do not believe it is necessary to address whether
Plaintiff's misunderstanding of Defendant's argument effects a waiver of his right to oppose dismissal of his
NYSHRL and NYCHRL claims in light of my conclusions that Plaintiff has failed to state any viable federal
claims and my recommendation that Your Honor should decline to exercise jurisdiction over the state and
city law claims pursuant to 28 U.S.C. § 1367(c).
5 Magistrate judges in this district have routinely recommended that the Court decline to exercise supplemental
jurisdiction over similar NYSHRL and NYCHRL claims. See, e.g., Shahid-Ikhlas v. New York and Presbyterian
Hosp., Inc., 22-CV-10643 (GHW) (SDA), 2023 WL 3628151, at *6 (May 5, 2023) (recommending that the
Court “decline to exercise supplemental jurisdiction over the state-law and city-law claims” at the motion to
dismiss stage), report and recommendation adopted, 2023 WL 3626435 (S.D.N.Y. May 24, 2023).
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Batista v. Consolidated Edison of New York, Inc., Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 842940
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Anthony BATISTA, Plaintiff,
v.
CONSOLIDATED EDISON OF
NEW YORK, INC., Defendant.
24-cv-82 (VSB)
|
Signed March 18, 2025
Attorneys and Law Firms
James Mermigis, Law Office of James Mermigis, Syosset,
NY, Counsel for Plaintiff.
Ivan A. Mendez, Jr., Consolidated Edison Company of New
York, Inc, New York, New York, Counsel for Defendant.
OPINION & ORDER
VERNON S. BRODERICK, United States District Judge:
*1 Before me is Magistrate Judge Robyn F. Tarnofky's
Report and Recommendation, entered on January 22, 2025.
(Doc. 31 (“Report” or “R&R”).)
I. Procedural Background
On January 5, 2024, Plaintiff filed a complaint alleging
employment discrimination and retaliation under the
Americans with Disabilities Act of 1990 (“ADA”), the New
York State Human Rights Law (“NYSHRL”), and the New
York City Human Rights Law (“NYCHRL”). (Doc. 1.) This
case was assigned to Judge Jennifer H. Rearden.
On April 10, 2024, Defendant filed a motion to dismiss.
(Doc. 11.) The motion to dismiss was accompanied by a
memorandum of law and a declaration from counsel. (Docs.
12, 13.) On April 12, 2024, Judge Rearden granted Plaintiff
leave to file an amended complaint and specifically warned:
“Plaintiff will not be given any further opportunity to amend
the Complaint to address issues raised by the motion to
dismiss.” (Doc. 14.) On May 1, 2024, Plaintiff filed an
amended complaint. (Doc. 17.) On May 16, 2024, Defendant
moved to dismiss. (Doc. 18.) On June 13, 2024, Plaintiff
submitted an opposition brief. On July 9, 2024, Defendant
replied. (Doc. 28.)
On January 22, 2025, Judge Tarnofsky issued a Report and
Recommendation recommending that I dismiss Plaintiff's
federal claims for failure to allege that Plaintiff had a
disability or that he engaged in protected activity within
the meaning of the Americans with Disabilities Act. (See
R&R 9–10, 12.) Judge Tarnofsky also recommended I decline
to exercise supplemental jurisdiction over the NYSHRL
and NYCHRL claims. (Id. at 13.) Finally, Judge Tarnofsky
recommended that I sua sponte grant leave to amend the
operative complaint. (Id. at 15–17.) Neither party timely filed
objections or timely sought an extension to file objections.
On February 6, 2025, Defendant filed objections to the Report
one day after the deadline. (Doc. 32.) Defendant objects
only to the portion of the Report recommending I grant
Plaintiff leave to amend the operative complaint because (1)
Plaintiff failed to cure its pleading deficiencies despite the
prior motion to dismiss and (2) Judge Rearden had warned
Plaintiff that he would not be provided another opportunity
to amend. (Id. at 4.) Defense counsel also submitted a letter
on February 6, 2025, explaining that Defendant's objections
were filed late due to “an emergency involving one of
[defense counsel's] children.” (Doc. 35.) Plaintiff responded
in a letter arguing that Defendant's objections are untimely
and therefore waived, and that Defendant failed to request an
extension of time to file objections. (Doc. 36.)
II. Discussion
In reviewing a magistrate judge's report and recommendation,
a district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). Parties may raise
specific, written objections to the report and recommendation
within fourteen days of being served with a copy of the
report. Id.; see also Fed. R. Civ. P. 72(b)(2). When a party
submits a timely objection, a district court reviews de novo
the parts of the report and recommendation to which the party
objected. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P.
72(b)(3). When neither party submits an objection to a report
and recommendation, or any portion thereof, a district court
reviews the report and recommendation, or that portion, for
clear error. See Rodriguez v. Clearbrook Mgmt. Inc., No. 22-
CV-4442, 2023 WL 112756, at *1 (S.D.N.Y. Jan. 5, 2023);
Caballero v. Comm'r of Soc. Sec., No. 18-CV-7794, 2019 WL
2602849, at *1 (S.D.N.Y. June 25, 2019). A “[c]ourt need not
consider the merits of [a party's objections]” to a magistrate
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judge's report and recommendation because “ ‘failure to
object timely to a magistrate[ judge's] report operates as
a waiver of any further judicial review of the magistrate's
decision.’ ” Lithgow v. Keyser, No. 21-CV-998, 2021 WL
4942824, at *1 (S.D.N.Y. Oct. 22, 2021) (quoting Small v.
Sec'y of Health & Huan Servs., 892 F.2d 15, 16 (2d Cir.
1989)).
*2 The Report noted: “The parties shall have fourteen
days (including weekends and holidays) from service of
this Report and Recommendation to file written objections
pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure to this Report and
recommendation.” (R&R at 19.) Here, neither party timely
objected to the Report or timely requested additional time to
file objections. I need not consider the merits of Defendant's
objection, even if it were late by only one day. See, e.g.,
Thai Lao Lignite (Thailand) Co. v. Gov't of Lao People's
Democratic Republic, 924 F. Supp. 2d 508, 517–18 (S.D.N.Y.
2013) (declining to consider objections filed one day late).
However, because Defendant objected only one day late
due to defense counsel's family emergency, I review de
novo Defendant's objection to Judge Tarnofsky's Report
and Recommendation. See, e.g., Eyck v. Lee, No. 19-
CV-6924, 2023 WL 5917564, at *1 (S.D.N.Y. Sept. 11, 2023)
(reviewing objections de novo even though “objections were
technically untimely” by one day). Reviewing the Report de
novo, I would grant Plaintiff leave to amend. Notably, the
Report recommended dismissal of the ADA-retaliation claim
for failure to allege protected activity. (R&R 12.) However,
Defendant's memorandum of law in support of its prior
motion to dismiss seemed to have conceded that Plaintiff's
accommodation requests were protected activities. (Doc. 12
at 14) (describing Plaintiff's “two accommodation requests”
as his “lone protected activities”). Instead, Defendant's only
argument regarding the retaliation claim was that there was
no causal connection between the accommodation requests
and his termination, which is a separate prong in the ADA-
retaliation analysis. (Id. at 12–15). Plaintiff thus was not
on notice that the original complaint had potential pleading
deficiencies regarding protected activity. Accordingly, Judge
Rearden's warning that Plaintiff would be precluded from the
opportunity to further amend the complaint to “address issues
raised by the motion to dismiss” is inapplicable because the
issue of protected activity was not raised by the prior motion
to dismiss. (Doc. 14.) In light of the underlying facts and the
“permissive” and “liberal standard” for granting amendments,
see Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC,
797 F.3d 160, 190 (2d Cir. 2015), I would have overruled
Defendant's objection and adopted that portion of the Report
granting leave to amend.
Accordingly, I have reviewed Judge Tarnofsky's thorough and
well-reasoned Report de novo and, after careful review, found
no error. Accordingly, I ADOPT the Report.
III. Conclusion
The Clerk of Court is respectfully directed to enter judgment
per the terms stated in the Report and to close the open
motion at docket entry 18. In accordance with the Report's
recommendation, Plaintiff shall file a second amended
complaint within 30 days of this order.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 842940
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Brown v. Peters, Not Reported in F.Supp. (1997)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.
DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,
1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which
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forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo
determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
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Brown v. Peters, Not Reported in F.Supp. (1997)
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no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.
CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.
BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In
October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,
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upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eighty-
six days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.
DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork
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relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.
CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further
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RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355
Footnotes
1 I note, however, that the report-recommendation would survive even de novo review.
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Fitzgerald v. We Company, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 952963
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Alexandria FITZGERALD, Plaintiff,
v.
The WE COMPANY d/b/a WeWork and David Stiles, in
their Individual and professional capacities, Defendants.
20 Civ. 5260 (AT)
|
Signed 03/30/2022
Attorneys and Law Firms
Valdi Licul, Lindsay Michelle Goldbrum, Wigdor LLP, New
York, NY, Parisis G. Filippatos, Filippatos PLLC Wigdor
LLP, Pleasantville, NY, for Plaintiff.
David Wayne Garland, Matthew Savage Aibel, Epstein
Becker & Green, New York, NY, for Defendants The We
Company, David Stiles.
ORDER
ANALISA TORRES, United States District Judge:
*1 Plaintiff, Alexandria Fitzgerald, brings this action against
Defendants We Work Management LLC 1 (“WeWork”), and
its employee, David Stiles, 2 alleging that they discriminated
and retaliated against her on the basis of gender and disability,
in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, et seq., the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., the
New York State Human Rights Law (the “NYSHRL”), N.Y.
Exec. L. § 290 et seq., and the New York City Human Rights
Law (the “NYCHRL”), N.Y.C. Admin. Code § 8-107 et seq.
Am. Compl. ¶ 2, ECF No. 23. Fitzgerald also alleges that
WeWork's termination of her employment violated the Family
and Medical Leave Act (the “FMLA”), 29 U.S.C. § 2601 et
seq. Id. ¶¶ 2, 295–303.
Defendants move for summary judgment. Defs. Mot.,
ECF No. 41. For the reasons stated below, the motion
is GRANTED as to Fitzgerald's claims under Title
VII, the ADA, and the FMLA. The Court declines
to exercise supplemental jurisdiction over Fitzgerald's
remaining NYSHRL and NYCHRL claims, and those claims
are, accordingly, DISMISSED without prejudice to renewal
in state court.
BACKGROUND 3
WeWork provides office space for companies worldwide.
Defs. 56.1 ¶ 1, ECF No. 43. Alexandria Fitzgerald began
working for WeWork on March 25, 2019, as a Senior Lead
Program Manager in the Program Management Organization
(“PMO”). Id. ¶ 2.
I. Stiles
From May 10–11, 2019, Fitzgerald traveled to Kansas City,
Missouri, to check on issues at a client's project site. Id. ¶ 72.
Akash Agarwal, a Regional Head in the department, asked
David Stiles, another Senior Lead, to accompany Fitzgerald
on the trip. Id. ¶¶ 19, 73–74.
On May 13, 2019, when Fitzgerald returned from the trip, she
informed her supervisor, Nicole Rodriguez, that she had an
“uncomfortable” situation with Stiles in Kansas City. Id. ¶ 78.
Rodriguez escalated Fitzgerald's complaint to Agarwal, who
in turn, brought in WeWork's People team (akin to a human
resources department). Id. ¶¶ 80–83. The next day, the People
team began an investigation into the matter, led by Maria
Cox, a People Partner, and Alissa Horn, WeWork's Director
of Investigations and Employee Relations. Defs. 56.1 ¶¶ 90–
91, 108. On May 15, 2019, Cox interviewed Fitzgerald. Id.
¶ 96. According to Cox's contemporaneous interview notes,
Fitzgerald told Cox that during dinner in Kansas City, Stiles
asked her whether she had a boyfriend, and in response to her
stating that she “wanted to settle down,” he told her to “bang a
few out before [she] get[s] into a relationship.” Id. ¶ 98. Stiles
also wiped barbecue sauce off Fitzgerald's face with a napkin.
Id. ¶ 104. After dinner, Stiles returned to his hotel room, and
Fitzgerald went out for a drink. Id. ¶ 100. Fitzgerald initiated
a text conversation with Stiles, during which Stiles texted
her “lol, want to cuddle.” Id. ¶ 101. Fitzgerald responded,
but did not address the request. ECF No. 49-16 at 11. Stiles
later texted “I still did not get an answer on the cuddling”
with a tongue emoji. Id. at 12. Fitzgerald responded later that
evening “Phone died while I was out. No cuddling for me[.]”
Id. at 13.
*2 On May 17, 2019, Horn interviewed Stiles, who admitted
to the behavior Fitzgerald described. Defs. 56.1 ¶¶ 112–
16. Horn issued a report, finding that Stiles’ comments
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were “inappropriate, unprofessional[,] and in violation of
[WeWork's] Workplace Violence & Harassment Policy,” and
recommended he receive a “final written warning.” ECF
No. 52-21 at 1, 5. On May 22, 2019, Cox and Agarwal
met with Stiles to deliver the warning, which, among
other things, directed Stiles to fully comply with applicable
WeWork policies on workplace harassment, and warned
that any further violations “will result in [his] immediate
separation from WeWork.” Defs. 56.1 ¶¶ 129–32. Following
the issuance of the warning, Stiles did not engage in any
further inappropriate behavior towards Fitzgerald. Id. ¶ 149;
see also Fitzgerald Tr. at 186, ECF No. 49-3. And, for the
duration of Fitzgerald's employment, Stiles remained in a
different “pod” of the department, reporting to a different
supervisor. Defs. 56.1 ¶ 27. Fitzgerald contends, however,
that Stiles continued to “[make] inappropriate comments at
team meetings as jokes,” Fitzgerald Tr. at 186–87; and that he
exhibited inappropriate behavior, including touching a female
colleague's breast, id. at 187–88; “hit[ting] on” a client during
a business meeting by asking for her relationship status, id.
at 187, 191–92, and referring to a female colleague as a
“stripper,” id. at 188.
II. Fitzgerald's Therapy Sessions
In June 2019, Fitzgerald began attending therapy
appointments for her anxiety, typically between 3:00 and 5:00
p.m. on weekdays. Id. at 110–11, 231; Defs. 56.1 ¶ 150. She
did not seek permission to attend her therapy appointments;
rather, she generally would tell a supervisor that she was
leaving for the appointment and would return to the office
afterwards. Defs. 56.1 ¶ 151; see also Fitzgerald Tr. at 111. For
instance, on November 1, 2019, Fitzgerald informed Duong,
her supervisor at the time, see Fitzgerald Tr. at 34, that she had
a therapist appointment she could not move, but she explained
that she could “come back right after” and asked Duong to
“help play defense for [her] if any meetings pop up” while
she was gone, ECF No. 49-18 at 27. Similarly, Fitzgerald told
Agarwal, Rodriguez, and another supervisor, Catie Delay, that
she would put a “block in [her] calendar” and silence her
phone for therapy appointments, and that she would return to
the office when they were completed. Fitzgerald Tr. at 111–
14. Agarwal responded that Fitzgerald should “take care of
whatever [she] need[ed] to do.” Id. at 113. And, Rodriguez
told Fitzgerald she was “proud of [Fitzgerald] for getting
help.” Id. at 111–12.
Fitzgerald could not recall any instances in which Rodriguez,
Agarwal, or Delay prevented her from attending a scheduled
therapy appointment or made disparaging comments about
her attending therapy. Id. at 114–15. And, although Fitzgerald
believes there were times when Duong requested that she
move her therapy appointments if possible, she did not recall
any specific occasions when she had been required to cancel
her appointment at Duong's request. See id. at 106–10.
III. WeWork's Reduction-in-Force and Fitzgerald's
Termination
Beginning in 2019, following a failed IPO attempt and
changes in senior leadership, WeWork went through multiple
reorganizations and reductions-in-force (“RIFs”). See Defs.
56.1 ¶¶ 21, 23, 29, 31, 69–71. In the summer of 2019,
Fitzgerald's PMO group was combined with the Client
Services group to form a new “Enterprise Services” (“ES”)
department. Defs. 56.1 ¶ 6. Prior to the merger, Client
Services focused on the pre-deal, sales phase of projects,
and PMO focused on post-deal project execution for clients.
Defs. 56.1 ¶¶ 8–9. Fitzgerald, like every other employee
in the new ES department, received a title change—in her
case, to Associate Project Executive, and she gained some
additional responsibilities. Id. ¶¶ 14–17. Her job level and
compensation, however, remained unchanged. Id. ¶ 16. In
November 2019, WeWork conducted an RIF that led to
the elimination of 2,400 positions, or roughly 20% of their
workforce, including employees in Fitzgerald's role. Id. ¶¶ 21,
23–24.
In early 2020, Ivan Kondili, the co-head of ES, was
told to start planning for additional layoffs (the “April
2020 RIF”). Id. ¶ 30. In light of changing organizational
priorities within ES, Kondili sought to retain employees
with “deeper, hands-on experience in budgeting, contracting,
and construction,” and expertise in technical areas
like construction methodology, to ensure that remaining
employees “were equipped, with fewer resources than before,
to handle the end-to-end client experience.” Kondili Decl. ¶¶
16–18, ECF No. 47; see also Kondili Tr. at 74–75, ECF No.
49-1. Kondili did not base layoff decisions on a “performance
assessment,” but instead asked his direct reports—including
Agarwal—to identify employees in their reporting lines who
lacked the “caliber and skill sets” employees would need to
demonstrate moving forward. Defs. 56.1 ¶¶ 38–41; Kondili
Tr. at 68–69, 74–75.
*3 As part of his assessment of his team's abilities,
Agarwal reviewed employees’ resumes to assess whether
their experience and skills were sufficient. See Agarwal
Tr. at 59–60, ECF No. 49-5. He then recommended seven
employees, ranked from least to most likely to be successful
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in the new, leaner organization given their background
and expertise, for inclusion in the April 2020 RIF. The
three candidates ranked “least likely to succeed” including
Fitzgerald, were all Associate Project Executives who had
formerly been in the PMO side of ES. Agarwal Tr. at 168–69.
Agarwal concluded that these employees’ skills were largely
in project execution, and that they lacked the technical and
contracting skills needed to manage a client in the pre-deal
stages of a project. Id. at 59–60, 168–72; Defs. 56.1 ¶ 53,
Agarwal Decl. ¶ 6, ECF No. 44.
Kondili then chose five of the seven employees on Agarwal's
list for layoffs, based on both Agarwal's input and Kondili's
own experience with each employee. Defs. 56.1 ¶ 56; Kondili
Tr. at 71–73. He decided to fire all three remaining U.S.-
based Associate Project Executives—including Fitzgerald.
Defs. 56.1 ¶ 57; see also Kondili Tr. at 96–100. Based on
Kondili's eighteen years of construction experience and the
conversations he had with Fitzgerald, he determined that
Fitzgerald lacked “the construction technical knowledge that
she needed” to be successful moving forward. Kondili Tr.
at 70–73. Kondili also laid off Kim Koo, a female Proposal
Manager, and Pierce Reynoldson, a male Project Executive,
ranked fifth and sixth least likely to succeed, respectively.
Defs. 56.1 ¶ 56. Kondili retained Hayley Whitfield, a female
Project Executive, and Jacob Riedel, a male Pod Director,
ranked fourth and seventh least likely to succeed, respectively.
See id. ¶¶ 47, 51, 56.
In total, WeWork eliminated 300 employees, including eleven
positions in ES. Defs. 56.1 ¶ 65. The April 2020 RIF
eliminated Fitzgerald's role entirely, and WeWork has not had
any Associate Project Executives in ES since then. Id. ¶ 58.
WeWork went through at least two more RIFs, in June and
October 2020. Id. ¶¶ 69–70. As a result, ES shrunk from 250
employees at its peak to approximately twenty employees
today. Id. ¶ 71.
DISCUSSION
I. Legal Standard
Summary judgment is appropriate when the record shows
that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322–26 (1986). A genuine dispute exists “if
the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Anderson, 477 U.S. at
248. The moving party initially bears the burden of informing
the Court of the absence of a genuine dispute of material
fact by citing particular evidence in the record. Fed. R. Civ.
P. 56(c)(1); Celotex, 477 U.S. at 323–24; Koch v. Town of
Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). If the non-
moving party has the ultimate burden of proof on specific
issues at trial, the movant may also satisfy its own summary
judgment burden by demonstrating that the adverse party
cannot produce admissible evidence to support an issue of
fact. Celotex, 477 U.S. at 322–23; PepsiCo, Inc. v. Coca-Cola
Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).
If the moving party meets its initial burden, the burden then
shifts to the opposing party to establish a triable issue of
fact. Beard v. Banks, 548 U.S. 521, 529 (2006); PepsiCo, 315
F.3d at 105. In doing so, the non-moving party “may not rely
on conclusory allegations or unsubstantiated speculation,”
Scott v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citation
omitted), as “unsupported allegations do not create a material
issue of fact,” Weinstock v. Columbia Univ., 224 F.3d 33, 41
(2d Cir. 2000) (citation omitted). In deciding the motion, the
Court views the record in the light most favorable to the non-
moving party. Koch, 287 F.3d at 165.
*4 The Court must be “cautious about granting summary
judgment to an employer in a discrimination case when
the employer's intent is in question,” and must “carefully
scrutinize[ ]” the non-movant's affidavits and depositions
for “circumstantial proof which, if believed, would show
discrimination.” Schwapp v. Town of Avon, 118 F.3d 106,
110 (2d Cir. 1997) (quotation marks and citation omitted).
That said, summary judgment is warranted if the opposing
party “relies on conclusory allegations of discrimination and
the employer provides a legitimate rationale for its conduct.”
Figueroa v. N.Y. Health and Hosps. Corp., 500 F. Supp.
2d 224, 228 (S.D.N.Y. 2007) (quotation marks and citation
omitted). To defeat summary judgment, the opposing party
must set forth “concrete evidence from which a reasonable
juror could return a verdict in [its] favor.” Anderson, 477 U.S.
at 256.
II. Gender Discrimination
Fitzgerald raises claims of gender-based discrimination,
retaliation, and a hostile work environment under Title
VII, the NYSHRL, and the NYCHRL, citing the sexual
harassment she experienced from Stiles and her termination.
See, e.g., Am. Compl. ¶¶ 267, 272, 310. The Court addresses
each claim separately.
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A. Hostile Work Environment
Under Title VII, sexual harassment is cognizable as gender
discrimination, and may be analyzed as a hostile work
environment claim. Anderson v. Davis Polk & Wardwell
LLP, 850 F. Supp. 2d 392, 403 (S.D.N.Y. 2012). To state a
hostile work environment claim under Title VII, a plaintiff
must put forth evidence showing that her workplace was
“permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive work
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993) (quotation marks and citations omitted). She must
also show that the complained-of conduct creates such an
environment because of her gender. Patane v. Clark, 508 F.3d
106, 113 (2d Cir. 2007). Defendants argue that Fitzgerald
has failed to establish a prima facie case of a hostile work
environment based on Stiles’ inappropriate—but limited—
conduct towards her. Defs. Mem. at 12–13. The Court agrees.
Isolated incidents “usually will not suffice to establish a
hostile work environment, although ... even a single episode
of harassment can establish a hostile work environment if
the incident is sufficiently severe.” Redd v. New York Div.
of Parole, 678 F.3d 166, 175–76 (2d Cir. 2012) (quotation
marks omitted). A plaintiff must, therefore, demonstrate
“either that a single incident was extraordinarily severe, or
that a series of incidents were sufficiently continuous and
concerted to have altered the conditions of her working
environment.” Howley v. Town of Stratford, 217 F.3d 141,
153 (2d Cir. 2000) (citation omitted). For instance, courts
have found that a single instance of sexual assault qualifies
as “extraordinarily severe” for purposes of establishing a
hostile work environment claim. See Domingues v. Barton
Chevrolet Cadillac, No. 18 Civ. 7772, 2021 WL 637016, at
*4–5 (S.D.N.Y. Feb. 17, 2021) (collecting cases).
Here, Fitzgerald describes an isolated instance in which, over
the span of an evening, Stiles made comments about her
relationship status, including encouraging her to “bang a few
out,” and “have a bunch of one-night stands,” briefly touched
her face, and, during a text exchange, twice asked her to
“cuddle” in his hotel room, punctuated with a tongue emoji—
a sexually suggestive image. Defs. 56.1 ¶¶ 98, 100–01, 104;
see also ECF No. 49-16 at 12. Although Stiles’ comments
could be construed as vulgar and inappropriate, the Court
does not find that these comments and propositions, standing
alone, are sufficiently “severe and pervasive” as to establish a
hostile work environment claim. Compare Howley, 217 F.3d
at 154 (single instance of verbal abuse created hostile work
environment where offender went on a “tirade” about female
plaintiff being promoted for performing fellatio, “at length”
and “loudly” in front of large group of male subordinates),
with Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58–
59 (2d Cir. 2004) (two instances of supervisor propositioning
employee for sex in one month did not establish hostile work
environment claim).
*5 Moreover, Fitzgerald does not adduce admissible
evidence that Stiles’ behavior following the trip was
sufficiently “continuous and concerted [as] to have altered the
conditions of her working environment.” Howley, 217 F.3d at
153. Fitzgerald concedes that, after Stiles was reprimanded,
he did not direct any further inappropriate behavior towards
her. Fitzgerald Tr. at 186. And, although Fitzgerald levels
more serious allegations at Stiles—including that he touched
a co-worker's breast and made advances on a client, id. at
186–92—she offers only inadmissible hearsay in support
of these claims, which does not establish a triable issue
of fact, see Weinstock, 224 F.3d at 44. At best, Fitzgerald
adduces admissible evidence that Stiles occasionally made
inappropriate, isolated jokes in group settings. Fitzgerald
Tr. at 187–88. But, this does not rise to the level of
severe and pervasive conduct necessary to establish a hostile
work environment claim. Stiles’ actions, accordingly, “are
sufficiently isolated and discrete that a trier of fact could
not reasonably conclude they pervaded [Fitzgerald's] work
environment.” Quinn v. Green Tree Credit Corp., 159 F.3d
759, 768 (2d Cir. 1998). Accordingly, Defendants’ motion
for summary judgment on Fitzgerald's Title VII hostile work
environment claim is GRANTED. 4
B. Discriminatory Discharge
Fitzgerald argues that WeWork “discriminated against [her]
on the basis of her gender ... by subjecting her to disparate
treatment, including ... terminating her employment.” Am.
Compl. ¶ 305. Discriminatory discharge claims under Title
VII are subject to the three-part burden-shifting framework
described in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–04 (1973). To establish a prima facie case, a plaintiff
must show that “(1) she is a member of a protected class; (2)
she is qualified for her position; (3) she suffered an adverse
employment action; and (4) the circumstances give rise to
an inference of discrimination.” Weinstock, 224 F.3d at 42
(citing McDonnell Douglas, 411 U.S. at 802). The burden
then shifts to the defendant to demonstrate a “legitimate, non-
discriminatory reason” for the employment action. Tex. Dep't
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of Comm. Affs. v. Burdine, 450 U.S. 248, 254 (1981). Such a
proffer causes the “presumption of discrimination arising with
the establishment of the prima facie case [to] drop[ ] from
the picture.” Weinstock, 224 F.3d at 42. The plaintiff must
then adduce “sufficient evidence to support a rational finding
that the legitimate, non-discriminatory reasons proffered by
the [defendant] were false, and that more likely than not
[discrimination] was the real reason for the [employment
action].” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,
714 (2d Cir. 1996) (citation omitted).
Defendants argue that Fitzgerald “cannot show that WeWork
discharged her under circumstances giving rise to an inference
of gender discrimination.” Defs. Mem. at 22. The Court
agrees. In the absence of direct evidence of discrimination
—which Fitzgerald does not adduce 5 —she may raise
an inference of discrimination by demonstrating disparate
treatment, that is that she was treated “less favorably than a
similarly situated employee outside [her] protected group.”
Ruiz v. Cty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010)
(citation omitted). To make such a showing, Fitzgerald must
allege that she was “similarly situated in all material respects
to the individuals with whom she seeks to compare herself.”
Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)
(quotation marks and citations omitted); see also McGuinness
v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001). She may
also raise an inference of discrimination by demonstrating
a disparate impact through statistical evidence showing that
“male employees were more likely to survive [the April 2020]
RIF.” Vuona v. Merrill Lynch & Co., Inc., 919 F. Supp. 2d 359,
371–72 (S.D.N.Y. 2013).
*6 Fitzgerald has failed to show disparate treatment and
impact. As to disparate treatment, Fitzgerald does not identify
a male comparator who was similarly situated to her in all
material respects. The single male employee who survived
the RIF—Riedel—was a “manager” in a more senior role,
see Pl. Opp'n at 7, 23; Defs. 56.1 ¶ 51 (identifying Riedel
as a “pod director”). Fitzgerald does not demonstrate that
Riedel—or any other male employee not terminated in the
RIF—was subject to the same performance or evaluation
standards as Fitzgerald, that they shared a supervisor, or that
their positions were “sufficiently similar ... to support at least
a minimal inference that the difference in treatment may be
attributable to discrimination.” McGuinness, 263 F.3d at 54;
see also Brown, 756 F.3d at 230 (finding employees similarly
situated where they worked in the same group, reported to the
same supervisor, and were subject to the same performance
evaluation standards). And, the April 2020 RIF eliminated
all U.S.-based employees in Fitzgerald's role and department,
Defs. 56.1 ¶ 58—which does not support the existence of a
male comparator who received more favorable treatment.
Similarly, Fitzgerald's statistical evidence is insufficient
to demonstrate disparate impact. Seven employees—five
women and two men—were considered for termination in
the RIF, of which four women and one man were ultimately
let go. Defs. 56.1 ¶¶ 43–51, 55–56. The “small sample
size” at issue “renders this statistical evidence practically
meaningless,” particularly when Fitzgerald has not adduced
any evidence as to ES's demographics as a whole, or
the percentages of men and women laid off in the RIF.
Coleman v. Prudential Relocation, 975 F. Supp. 234, 240
(W.D.N.Y. 1997) (collecting cases). Because Fitzgerald has
not established an inference of discriminatory intent in
connection with her inclusion in the April 2020 RIF, she has
not made a prima facie case for her discriminatory discharge
claim.
Even assuming Fitzgerald established a prima facie case,
Defendants have put forth legitimate, non-discriminatory
business reasons for her termination. The April 2020 RIF
eliminated hundreds of positions, including all remaining
U.S.-based employees in Fitzgerald's role and department.
Defs. 56.1 ¶¶ 58, 65; Kondili Decl. ¶ 26. “A[n] RIF can
indeed provide a legitimate, non-discriminatory reason for
a termination,” Vuona, 919 F. Supp. 2d at 373, particularly
when all employees in the plaintiff's role are let go. Garcia
v. Barclays Capital, Inc., 281 F. Supp. 3d 365, 379–80
(S.D.N.Y. 2017). Kondili prioritized retaining employees
with substantive experience in “budgeting, contracting,
and construction,” specific technical skills in construction
management, and the ability to manage a client through
both the pre-deal and execution stages of a project. Defs.
56.1 ¶¶ 30–33; Kondili Decl. ¶¶ 16–18. He chose to fire
Fitzgerald—and the two remaining ES employees in the
same “junior-level role,” Fitzgerald Tr. at 221—because he
determined they lacked these skills. Defs. 56.1 ¶¶ 53, 56–
57. Defendants are entitled to “discharge an employee on the
basis of subjective business judgments, for any reason that is
not discriminatory,” and it is not the Court's role to second-
guess such business decisions. Risco v. McHugh, 868 F. Supp.
2d 75, 105 (S.D.N.Y. 2012).
Fitzgerald offers no evidence of pretext to rebut Defendants’
non-discriminatory rationale for her termination. She
“vehemently disagrees with Defendants’ assessment of [her]
performance and the decision to select [her] as one of the ...
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weakest employees of the group, [but] this does not show
pretext.” Pearson v. Lynch, No. 10 Civ. 5119, 2012 WL
983546, at *10–11 (S.D.N.Y. Mar. 22, 2012). Accordingly,
Defendants’ motion for summary judgment on Fitzgerald's
Title VII gender-based discriminatory discharge claim is
GRANTED.
C. Retaliation
Fitzgerald alleges that she was fired in retaliation for her
complaints about Stiles, in violation of Title VII. Am. Compl.
¶¶ 310. As with discriminatory discharge claims, Title VII
retaliation claims are subject to the McDonnell Douglas
burden-shifting framework. To establish a prima facie case
of retaliation, a plaintiff must show that (1) she engaged in
a protected activity by opposing a practice made unlawful
by Title VII; (2) her employer was aware of that activity;
(3) she suffered a materially adverse employment action; 6
and (4) there was a causal connection between the protected
activity and the adverse employment action. See Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005).
The burden then shifts to the employer to show that the
“adverse employment actions were taken for a legitimate,
non-retaliatory reason.” Giscombe v. N.Y.C. Dep't of Educ.,
39 F. Supp. 3d 396, 401 (S.D.N.Y. 2014) (quotation marks,
citation, and alterations omitted). If the employer makes such
a showing, the plaintiff must prove “that the desire to retaliate
was the but-for cause of the challenged employment action.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013). That is, Fitzgerald must show that “the adverse action
would not have occurred in the absence of the retaliatory
motive.” Vega v. Hempstead U. Free Sch. Dist., 801 F.3d 72,
91 (2d Cir. 2015) (citation omitted).
*7 Even assuming that Fitzgerald establishes the first three
elements of a prima facie case of retaliation, the Court finds
that Fitzgerald has not shown a causal connection between her
complaint about Stiles and her firing. A causal connection can
be established by showing either “that the retaliatory action
was close in time to the protected activity; that other similarly
situated employees were treated differently; or with direct
proof of retaliatory animus.” Uddin v. City of New York, 427
F. Supp. 2d 414, 432 (S.D.N.Y. 2006). Fitzgerald has failed
to adduce the requisite direct proof, arguing merely that it
is “uncontested” that she was “fired less than a year” after
complaining about Stiles’ sexual harassment, and that this
sequence of events establishes causality. Pl. Opp'n at 25. The
Court disagrees.
Although the Second Circuit has not set forth a specific time
period “between protected activity and adverse employment
action that defeats an inference of causation,” Burkybile v.
Bd. of Educ. of Hastings–On–Hudson Union Free Sch. Dist.,
411 F.3d 306, 314 (2d Cir. 2005), courts in this Circuit have
generally concluded that a gap of more than three months
between the protected activity and the retaliatory action “is
insufficient, standing alone,” to establish a causal connection,
see, e.g., Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 457–
58 (S.D.N.Y. 2012) (collecting cases); Vuona, 919 F. Supp. 2d
at 383 (finding nine-month gap between internal complaint
and RIF “outside the time frame traditionally considered to
allow for an inference of causation.”).
Fitzgerald also claims that she reiterated her concerns about
Stiles to Duong around “late December or early January”—
roughly four months before she was discharged. Fitzgerald
Tr. at 89–91. Even assuming both that this constitutes a
“protected activity,” and that it was sufficiently temporally
proximate to Fitzgerald's termination to establish causality,
her claim still fails. Defendants have adduced a legitimate,
non-discriminatory reason for Fitzgerald's termination—
namely, an RIF that eliminated every employee in her role.
Defs. 56.1 ¶¶ 58, 65. In response, Fitzgerald offers no
evidence to suggest her complaint was the “but-for” cause
of her termination. And, although temporal proximity may
be sufficient on its own to establish a prima facie case
of retaliation, it does not establish pretext at the summary
judgment stage. See Kwan v. Andalex Grp. LLC, 737 F.3d 834,
847 (2d Cir. 2013). Fitzgerald cannot, therefore, prevail on a
retaliation claim under Title VII, and Defendants’ motion for
summary judgment on this claim is, accordingly, GRANTED.
III. Disability Discrimination
Fitzgerald argues that WeWork discriminated against her on
the basis of her disability by terminating her employment after
she sought an accommodation—time off to attend therapy
sessions for her anxiety. E.g., Am. Compl. ¶ 315. She brings
claims for discriminatory discharge, retaliation, and hostile
work environment on the basis of disability under the ADA.
Id.
Fulfilling the ADA's statutory definition of a disability is a
“significant threshold for seeking redress under the ADA.”
Felix v. New York City Transit Auth., 324 F.3d 102, 107 (2d
Cir. 2003). Defendants argue that Fitzgerald's ADA claims
should be dismissed, because she has not established that she
has a “disability” within the meaning of the ADA. Defs. Mem.
at 26–27. The Court agrees.
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A plaintiff claiming disability under the ADA must (1) show
that she suffers from a physical or mental impairment; (2)
identify the activity claimed to be impaired, and establish
that it constitutes a major life activity; and (3) show that her
impairment “substantially limits” the major life activity in
question. Weixel v. Bd. of Educ. of City of New York, 287 F.3d
138, 147 (2d Cir. 2002) (citation omitted).
*8 Fitzgerald states that she is “disabled in her sleeping and
cognitive functions” because of anxiety. Fitzgerald Decl. ¶
2, ECF No. 53. Although generalized anxiety disorder has
been “recognized as constituting [an] impairment[ ] under
the ADA,” Cody v. Cty. of Nassau, 577 F. Supp. 2d 623,
640 (E.D.N.Y. 2008), aff'd 345 F. App'x 717 (2d Cir. 2009),
the “mere allegation that plaintiff had difficulty sleeping is
not sufficient to show a substantial limitation in [a] major
life activity,” Baker v. CSX Transp., Inc., 546 F. Supp. 2d
90, 98 (W.D.N.Y. 2008) (citation omitted); cf. Felix v. New
York City Transit Auth., 154 F. Supp. 2d 640, 654 (S.D.N.Y.
2001). Fitzgerald makes “no showing that [her] affliction is
any worse than is suffered by a large portion of the nation's
adult population.” Colwell v. Suffolk Cty. Police Dep't, 158
F.3d 635, 644 (2d Cir. 1998). Similarly, Fitzgerald's statement
that she is “disabled in ... cognitive functions,” Fitzgerald
Decl. ¶ 2, supported by nothing more than her own affidavit, is
too “[v]ague, conclusory, and self-serving” to create a triable
issue of fact as to whether her anxiety causes “substantial
limitations” in any major life activities, Baker, 546 F. Supp.
2d at 98.
Fitzgerald has not established that she is “disabled” within
the meaning of the ADA, and cannot, therefore, seek
redress under its provisions. Accordingly, Defendants’
motion for summary judgment on Fitzgerald's claims of
disability-related discrimination, retaliation, and hostile work
environment under the ADA is GRANTED.
IV. FMLA
Under the FMLA, eligible employees are entitled to twelve
weeks per year of unpaid leave because of a “serious health
condition that makes the employee unable to perform the
functions of the position of such employee.” Sista v. CDC
Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006); see also
29 U.S.C. § 2612(a)(1)(D). The Second Circuit recognizes
separate claims of interference and retaliation under the
FMLA. See Woods v. START Treatment & Recovery Ctrs.,
Inc., 864 F.3d 158, 166 (2d Cir. 2017). “[A]n employee brings
an ‘interference’ claim when her employer has prevented
or otherwise impeded the employee's ability to exercise
rights under the FMLA.” Id. And, an employee may bring a
retaliation claim based on “actually exercising her rights or
opposing perceived unlawful conduct under the FMLA and
then being subjected to some adverse employment action by
the employer.” Id. Fitzgerald asserts both claims here. Am.
Compl. ¶¶ 295–303.
A. FMLA Interference
Fitzgerald claims that she was “eligible for, and on a
regimen of, intermittent medical leave” under the FMLA by
“taking time off work weekly to attend her psychotherapy
appointments.” Id. ¶ 256. She alleges that WeWork interfered
with her FMLA rights by “unlawfully terminating her
employment.” Id. ¶ 302. She also alleges that “[d]uring [her]
employment at WeWork, [she] needed to miss, postpone
and cancel multiple therapy appointments.” Fitzgerald Supp.
Decl. ¶ 26, ECF No. 54.
An employer violates the FMLA's interference clause where it
has “denied or otherwise interfered with a benefit to which [an
eligible employee] was entitled under the FMLA.” Graziadio
v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). To
establish a prima facie case of FMLA interference, a plaintiff
must demonstrate: “(1) that she is an eligible employee under
the FMLA; (2) that defendants constitute an employer under
the FMLA; (3) that she was entitled to leave under the FMLA;
(4) that she gave notice to defendants of her intention to
take leave; and (5) that defendants denied her benefits to
which she was entitled by the FMLA.” Roberts v. Ground
Handling, Inc., 499 F. Supp. 2d 340, 351 (S.D.N.Y. 2007)
(quotation marks and citations omitted). Defendants argue
that Fitzgerald has failed to establish this prima facie case.
Defs. Mem. at 32–33. The Court agrees.
*9 Fitzgerald did not qualify as an “eligible employee” for
FMLA purposes until March 25, 2020, twelve months after
her start date. 7 See Defs. 56.1 ¶ 2. And, once Fitzgerald
was entitled to FMLA leave, she “was obligated to provide
[WeWork] with ... at least thirty days’ notice for leave that is
foreseeable.” Bowman v. CSX Transp., Inc., 22 F. Supp. 3d
181, 189 (N.D.N.Y. May 22, 2014). As Fitzgerald continued
attending a standing therapy appointment—as she had done
since June 2019—her need for leave was clearly foreseeable.
Fitzgerald Tr. at 231. But, the record does not establish that
Fitzgerald “provide[d] enough information to put [WeWork]
on notice that [she] may be in need of FMLA leave.” Bowman,
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22 F. Supp. 3d at 189 (citing Kobus v. Coll. of St. Scholastica,
Inc., 608 F.3d 1034, 1036–37 (8th Cir. 2010)).
There is no evidence that Fitzgerald actually requested time
off, or took “leave”—such as vacation or sick time—to attend
therapy appointments. She merely informed supervisors that
she would be unavailable during “blocks” on her calendar for
therapy, and would resume working thereafter. Fitzgerald Tr.
at 111–14. This assertion merely shows that Fitzgerald availed
herself of an accommodation—“flexibility with respect to in-
office time”—to attend appointments during the workday,
and not that she requested “any form of leave,” such as a
reduced schedule, to do so. See Macropoulos v. Metropolitan
Life Ins. Co., No. 15 Civ. 6096, 2018 WL 1508564, at *13
(S.D.N.Y. Mar. 26, 2018) (“Although FMLA regulations do
not require an employee to mention the FMLA specifically,
they do require an employee to request leave, not just an
accommodation.”). And, although “an employee's statements
may give rise to a duty on the part of the employer to
inquire into the nature of the employee's need for leave,
the employer is not required to be clairvoyant.” Slaughter
v. Am. Bldg. Maintenance Co. of New York, 64 F. Supp.
2d 319, 326 (S.D.N.Y. 1999) (quotation marks and citation
omitted). There is no basis to find that Fitzgerald's desire to
“maintain her [workday] flexibility put [WeWork] on notice
that she desired FMLA leave” after she became eligible for it.
Macropoulos, 2018 WL 1508564, at *13.
Moreover, FMLA “interference” claims are an ex ante remedy
to be used where an employer “has prevented or otherwise
impeded the employee's ability to exercise rights under the
FMLA.” Greenberg v. State Univ. Hosp.–Downstate Med.
Ctr., 838 F. App'x 603, 605 (2d Cir. 2020) (citing Woods, 864
F.3d at 166). There is no evidence suggesting that Fitzgerald's
supervisors ever discouraged or prevented her from attending
therapy, or otherwise impeded her ability to exercise FMLA
rights. See Fitzgerald Tr. at 111–14. Indeed, Fitzgerald
attended all her scheduled therapy appointments after March
25, 2020. See Defs. 56.1 ¶ 165. At best, Fitzgerald states
that she was occasionally asked to reschedule appointments,
Fitzgerald Tr. at 106–07—which does not establish a FMLA
interference claim, see Anderson v. New Orleans Jazz &
Heritage Festival & Found., Inc., 464 F. Supp. 2d 562,
568 (E.D. La. 2006). 8 Accordingly, Defendants’ motion for
summary judgment on Fitzgerald's FMLA interference claim
is GRANTED.
B. FMLA Retaliation
*10 The FMLA “protects an employee from discharge or
demotion ... if that action is motivated by the employee's
taking leave pursuant to the FMLA.” Hale v. Mann, 219
F.3d 61, 68 (2d Cir. 2000). Fitzgerald argues that WeWork
terminated her “shortly after she began requesting time off
to attend therapy appointments.” Pl. Opp'n at 27. Retaliation
claims brought pursuant to the FMLA are subject to the
McDonnell Douglas burden-shifting test. Alexander v. Bd. of
Educ. of City of New York, 648 F. App'x 118, 121 (2d Cir.
2016). A plaintiff must first establish a prima facie case of
retaliation by showing “(1) [s]he exercised rights protected
under the FMLA; (2) [s]he was qualified for h[er] position;
(3) [s]he suffered an adverse employment action; and (4)
the adverse employment action occurred under circumstances
giving rise to an inference of retaliatory intent.” Potenza
v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004).
Such an inference may be established through either direct
evidence of retaliatory animus, or circumstantial evidence,
such as showing that “the protected activity was followed
closely by discriminatory treatment,” or “disparate treatment
of fellow employees who engaged in similar conduct.” Smith
v. North Shore-Long Island Jewish Health Sys., 286 F. Supp.
3d 501, 514 (E.D.N.Y. 2018) (citing Littlejohn v. City of New
York, 795 F.3d 297, 307, 319 (2d Cir. 2015)). A defendant
may rebut this prima facie case with a “legitimate, non-
discriminatory reason for its actions.” Graziadio, 817 F.3d
at 429. The plaintiff must then show that the defendant's
proffered explanation is pretextual. Id.
As discussed, the record does not establish that Fitzgerald
“exercised rights protected under FMLA,” because her
testimony does not support that she requested “leave”—rather
than merely flexible working hours—to attend her therapy
appointments. See supra at 20–21. Fitzgerald similarly has
not established an inference of retaliatory intent motivating
her inclusion in the RIF—she points to “no document or
testimony suggesting that ... any [WeWork] decision-maker
considered her alleged need for FMLA leave as a negative
factor in [their] decision to terminate [her].” 9 Lievre v.
JRM Construction Mgmt., LLC, No. 17 Civ. 4439, 2019 WL
4572777, at *19 (S.D.N.Y. Sept. 19, 2019). Indeed, Fitzgerald
“has not pointed to a single instance” where she was forced
to miss or cancel a therapy appointment, or even that anyone
at WeWork “tried to make it difficult for her” to attend her
appointments, which casts doubt on her assertion that she was
terminated for doing so. Coleman v. Prudential Relocation,
975 F. Supp. 234, 246 (W.D.N.Y. 1997).
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Finally Defendants have provided a legitimate, non-
discriminatory reason for Fitzgerald's termination—a RIF
that eliminated all US-based employees in her role. Defs.
Mem. at 36; see also Lulo, 2022 WL 409224, at *6.
Fitzgerald argues that “Defendants’ incoherent explanation
for terminating [her] employment [was] wholly pretextual,”
but as explained, her subjective disagreement with Kondili
and Agarwal's assessment of her skills and expertise—
even if that assessment was wrong—does not, without
more, establish pretext. Kwan, 737 F.3d at 852 (Parker,
J., concurring in part). Fitzgerald has failed, accordingly,
to establish a prima facie case of FMLA retaliation, and
therefore, Defendants’ motion for summary judgment on this
claim is GRANTED.
V. NYSHRL and NYCHRL Claims
A district court has discretion to “decline to exercise
supplemental jurisdiction” where, as here, “it has dismissed
all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). Where all federal-law claims are eliminated
before trial, “the balance of factors to be considered
under the pendent jurisdiction doctrine ... point toward [a
federal court] declining to exercise jurisdiction over the
remaining state [and city] law claims.” Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also
Cohen v. Postal Holdings, LLC, 873 F.3d 394, 405 (2d
Cir. 2017). The Court has eliminated all of Fitzgerald's
federal law claims. And, the NYSHRL and NYCHRL
employ a different, more liberal substantive standard in
resolving both gender- and disability-based discrimination,
retaliation, and hostile work environment claims. See, e.g.,
Glaser v. Gap Inc., 994 F. Supp. 2d 569, 572–73 (S.D.N.Y.
2014); Mihalik v. Credit Agricole Cheuvreux North Am.,
Inc., 715 F.3d 102, 109 (2d Cir. 2013). 10 Accordingly, the
Court declines to exercise supplemental jurisdiction over
Fitzgerald's remaining NYSHRL and NYCHRL claims.
CONCLUSION
*11 For the reasons stated above, Defendants’ motion for
summary judgment is GRANTED as to Fitzgerald's Title VII,
ADA, and FMLA claims, and those claims are DISMISSED
with prejudice. The Court declines to exercise supplemental
jurisdiction over Fitzgerald's NYSHRL and NYCHRL
claims, and accordingly, those claims are DISMISSED
without prejudice to renewal.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 952963
Footnotes
1 The caption incorrectly refers to Fitzgerald's employer as the “The We Company d/b/a WeWork.” See Am.
Compl., ECF No. 23. The correct name is “We Work Management LLC.” Defs. Mem. at 1, 2 n.1, ECF No. 42.
2 Fitzgerald also initially named Danny Duong as a defendant in this action. However, Fitzgerald withdrew her
claims against him, “agree[ing] that there is insufficient proof” that Duong was a participant in the alleged
harassment or termination decisions, Pl. Opp'n. at 31 n.17, ECF No. 50, and subsequently dismissed with
prejudice her claims against Duong by stipulation, ECF No. 56.
3 The facts in this section are taken from the parties’ 56.1 statements, unless otherwise noted. Citations to a
paragraph in the Rule 56.1 statement also include the other party's response. The Court considers admitted
for purposes of the motion any paragraph that is not specifically controverted by a correspondingly numbered
paragraph in the statement required to be served by the opposing party. Local Civ. R. 56.1(c). Where there
are no citations, or where the cited materials do not support the factual assertions in the statements, the
Court may disregard the assertion. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).
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4 The Court notes, however, that under the more liberal provisions of the NYCHRL, conduct that does not qualify
as “severe or pervasive” may still support a hostile work environment claim because “questions of ‘severity’
and ‘pervasiveness’ are applicable to consideration of the scope of permissible damages, but not to the
question of underlying liability.” Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 38 (1st. Dept. 2009)
(citation omitted). Indeed, “[w]hether a statement or incident is isolated is irrelevant under the NYCHRL.”
Holohan v. Newmark & Co. Real Estate Inc., No. 18 Civ. 6275, 2019 WL 4743883, at *4 (S.D.N.Y. Sept. 16,
2019) (quotation marks and citation omitted). Although Fitzgerald has not met the threshold to prevail on her
federal hostile work environment claim under Title VII, she might prevail on a parallel cause of action under
the NYCHRL. The Court, however, declines to exercise supplemental jurisdiction over Fitzgerald's NYCHRL
claim, see infra at 23–24, and, accordingly, does not address the merits of this cause of action here.
5 Stiles had no involvement or input in the decision to include Fitzgerald in the RIF, and, thus, his actions do
not provide a basis to infer discriminatory intent in WeWork's decision to terminate her. See Suri v. Grey
Global Grp., Inc., 83 N.Y.S.3d 9, 6 (N.Y. App. Div. 2018) (where plaintiff was eliminated through RIF, and her
employer's decision to terminate her “was not made by [alleged harasser], nor was it made in consultation
with him,” his actions did not constitute evidence that “her termination was motivated by discrimination.”)
6 In addition to citing her termination, Fitzgerald argues that she was “demoted” in August 2019, three months
after her complaint. Pl. Opp'n at 7–8, 25; Fitzgerald Tr. at 220–23. It is undisputed that, at that time,
Fitzgerald's group was reorganized, and she—like every other employee in the new group—received a title
change. Fitzgerald Tr. at 220–23; Defs. 56.1 ¶¶ 14–15. But, Fitzgerald has not shown that she experienced
any “materially adverse changes” as a result of this reorganization, such as a salary decrease, a material
loss of benefits, or diminished responsibilities. Chung v. City Univ. of New York, 605 F. App'x 20, 22 (2d Cir.
2015); see also Defs. 56.1 ¶¶ 16–17. “The law does not support a claim that a title change, with no change in
salary or benefits, is considered an adverse employment action.” White v. Fuji Photo Film USA, Inc., 434 F.
Supp. 2d 144, 152–53 (S.D.N.Y. 2006). Accordingly, the alleged “demotion” does not constitute an adverse
employment action for purposes of Fitzgerald's retaliation claim.
7 “To be eligible for FMLA leave, an employee must have been employed for at least twelve months by the
employer from whom she is requesting leave,” and work for at least 1,250 hours in that twelve-month period.
Arroyo-Horne v. City of New York, 831 F. App'x 536, 539 (2d Cir. 2020). There is “no claim under the FMLA,
however, when an employee is ineligible at both the time the employee provides notice of her intent to take
leave, and the time the leave is to be taken.” Condon v. Dormitory Auth. of New York, No. 17 Civ. 1381,
2019 WL 1259569, at *4 (N.D.N.Y. Mar. 19, 2019). To the extent Fitzgerald's FMLA interference claim is
predicated on requests for leave prior to March 25, 2020, accordingly, “whether granted or denied, [they] are
not actionable because they occurred before the 12-month mark.” Daniel v. T&M Protection Resources LLC,
87 F. Supp. 3d 621, 648 (S.D.N.Y. 2015), vacated and remanded on other grounds, 689 F. App'x 1 (2017).
8 The Court also notes that in Greenberg, the Second Circuit cast doubt on whether a FMLA interference claim
can even be raised based on “allegations concerning [an] ex post adverse employment action[ ],” such as
termination of employment, because such claims are “appropriately aimed at allegations concerning [an] ex
ante denial of [a] request for FMLA leave.” 838 F. App'x at 606.
9 Fitzgerald alleges that, during the RIF, Agarwal and Kondili explicitly considered a male employee's
upcoming paternity leave in recommending him for inclusion in the RIF. Pl. Opp'n at 27. Defendants dispute
this characterization. See Kondili Tr. at 110–11. But, although treatment of another employee in similar
circumstances may provide circumstantial evidence of an employer's retaliatory intent, Lulo v. OTG Mgmt.,
LLC, No. 19 Civ. 3776, 2022 WL 409224, at *6 (S.D.N.Y. Feb. 10, 2022), because the Court finds that
Fitzgerald has failed to establish the prima facie requirement that she exercised rights protected under FMLA,
this allegation, even if true, is insufficient to create a triable issue of fact that would defeat summary judgment.
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10 Although previously the “substantive standards for liability under the NYSHRL and Title VII” were considered
to be “coextensive,” see, e.g., Vuona, 919 F. Supp. 2d at 393, recent amendments to the NYSHRL now
provide that its provisions “should be construed liberally, ‘regardless of whether federal civil rights law,
including those laws with provisions worded comparably to the provisions of this article, have been so
construed.’ ” Deveaux v. Sketchers USA, Inc., No. 19 Civ. 9734, 2020 WL 1812741, at *3 n.3 (S.D.N.Y.
Apr. 9, 2020) (quoting NY Legis. 160 (2019), 2019 Sess. Law News of N.Y. Ch. 160 (A. 8421)). These
amendments “effectively rendered the [NYSHRL] standard ... closer to that of the [NYCHRL].” Livingston v.
Roosevelt Union Free Sch. Dist., No. 17 Civ. 4189, 2020 WL 1172642, at *11 (E.D.N.Y. Jan. 15, 2020), report
and recommendation adopted, 2020 WL 1166450 (E.D.N.Y. Mar. 11, 2020). The amendments do not apply
retroactively, however. Id. As Fitzgerald's claims accrue after 2019, her NYSHRL claims are analogous to
the substantive standards of the NYCHRL, rather than Title VII.
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Harris v. Bronx Parent Housing Network, Inc., Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 763740
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Dwayne HARRIS, Plaintiff,
v.
The BRONX PARENT HOUSING
NETWORK, INC., Defendant.
18-CV-11681 (GBD)(SN)
|
Signed 02/14/2020
Attorneys and Law Firms
Corey Scott Stark, Corey Stark PLLC, New York, NY, for
Plaintiff.
Jennifer A. Redmond, Michelle Adams Callner, Redmond
Law PLLC, New York, NY, for Defendant.
ORDER
SARAH NETBURN, United States Magistrate Judge:
*1 Plaintiff Dwayne Harris (“Plaintiff”) alleges defendant
The Bronx Parent Housing Network, Inc. (“Defendant”)
wrongfully terminated his employment based on his
disability. Before the Court are several motions. Defendant
seeks a protective order in response to Plaintiff's request
for documents related to retaliation claims filed against
Defendant. ECF No. 33. Plaintiff moves “to compel
Defendant to comply with its discovery obligations.” ECF
No. 35. Specifically, Plaintiff maintains that Defendant failed
to respond fully to four interrogatories and seven requests for
documents and moves the Court to compel responses. For the
reasons that follow, Defendant's motion for a protective order
is GRANTED in part and DENIED in part and Plaintiff's
motion to compel is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff filed his complaint on December 13, 2018, seeking
damages under the Americans with Disabilities Act of 1990,
42 U.S.C. §§ 12010, et seq. (the “ADA”), the New York
Executive Law §§ 290, et seq. (the “NYSHRL”), and the
Administrative Code of the City of New York §§ 8-107, et seq.
(the “NYCHRL”) for discrimination and harassment on the
basis of his disability. He alleges that after suffering a stroke
in July 2017, his then-employer, Defendant, refused to engage
in an individualized interactive process or to accommodate
him as required by law. Plaintiff also alleges that eventually,
despite his continued satisfactory performance, Defendant
notified Plaintiff that he would either have to accept a
significant demotion or be fired. Plaintiff claims that he
declined a demotion and that Defendant then terminated his
employment. Discovery in this case in still ongoing.
DISCUSSION
I. Governing Legal Principles
Rule 26(b)(1) recognizes that a party “may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case ....” See Fed. R. Civ. P. 26(b)(1); see also Rule 26
Advisory Committee Notes to 2015 Amendments; Edebali
v. Bankers Standard Ins. Co., 14-cv-7095 (JSA)(KT), 2016
WL 4621077, at *1 (E.D.N.Y. Sept. 6, 2016). Relevant
information need not be admissible at trial if the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence. Id. If the responding party fails to
produce documents, the party seeking discovery may move
for an order compelling an answer, designation, production,
or inspection. Fed. R. Civ. P. 37(a)(3)(B). Motions to compel
made pursuant to Rule 37 are “entrusted to the sound
discretion of the district court.” United States v. Sanders, 211
F.3d 711, 720 (2d Cir. 2000).
A. Interrogatories
Rule 33 provides that a “party may serve on any other party
no more than 25 written interrogatories, including all discrete
subparts.” Fed. R. Civ. P. 33(a)(1). Interrogatories “may relate
to any matter that may be inquired into under Rule 26(b) ...
[and] [are] not objectionable merely because [they] asks for
an opinion or contention that relates to fact or the application
of law to fact ....” Fed. R. Civ. P. 33(a)(2). The responding
party is required to answer each interrogatory “separately and
fully under oath.” Fed. R. Civ. P. 33(b)(3). The Rule explicitly
requires the responding party to “provide the best answer they
can based upon information within their possession.” Edebali,
2016 WL 4621077, at *2.
*2 In order to ensure that each interrogatory is answered
“separately” and “fully” under Rule 33(b)(3), the responding
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party is required “to make an inquiry and obtain information
to answer the interrogatories which would include obtaining
the information to fully and completely answer the
interrogatories ....” Upstate Shredding, LLC v. Ne. Ferrous,
Inc., 3:12-cv-1015, 2016 WL 865299 (LEK)(DEP), at *8
(N.D.N.Y. Mar. 2, 2016); see Zanowic v. Reno, 97-cv-5292,
2000 WL 1376251 (JGK)(HBP), at *3 n.1 (S.D.N.Y. Sept. 25,
2000) (“In responding to interrogatories ... a party is under a
duty to make a reasonable inquiry concerning the information
sought in the interrogatories, and a party's failure to describe
his efforts to obtain the information sought ... renders his
responses insufficient.”). Where a party, despite conducting a
diligent inquiry, is nevertheless unable to provide a responsive
answer, any efforts utilized should be set forth in detail to
ensure a sufficient response is interposed. See Edebali, 2016
WL 4621077, at *2. Further, “an answer to an interrogatory
must be completed within itself and, it should be in a
form that may be used at trial ... [Therefore] [r]eference
to depositions, other answers to the interrogatories, other
document production, the complaint itself, or any other
documents are improper and thus unresponsive.” Id.
B. Requests for Production
“A party may serve on any other party a request within the
scope of Rule 26(b)” to produce any designated documents
or permit their inspection. Fed. R. Civ. P. 34(a). “For each
item or category, the response must either state that inspection
and related activities will be permitted as requested or state an
objection to the request, including the reasons.” Fed. R. Civ.
P. 34. If the responding party fails to produce documents, the
party seeking discovery may move for an order compelling
an answer, designation, production, or inspection. See Fed. R.
Civ. P. 37(a)(3)(B); see also Wright v. New Moda, L.L.C., 17-
cv-9737 (JGK)(SN), 2019 WL 2071158, at *3 (S.D.N.Y. May
10, 2019). If the requested documentation does not exist, the
responding party's good-faith averment will resolve the issue
of the failure of production. Menard v. Chrysler Grp. LLC,
14-cv-6325 (VB), 2015 WL 5472724, at *3 (S.D.N.Y. July 2,
2015).
C. Standard for Objections
“A party resisting discovery has the burden of showing
‘specifically how, despite the broad and liberal construction
afforded the federal discovery rules, each interrogatory
is not relevant or how each question is overly broad,
burdensome or oppressive ... by submitting affidavits or
offering evidence revealing the nature of the burden.’
” Pegoraro v. Marrero, 281 F.R.D. 122, 128 (S.D.N.Y.
2012) (quoting Compagnie Francaise d'Assurance Pour le
Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D.
16, 42 (S.D.N.Y. 1984) (citation omitted)). “The grounds for
objecting to any interrogatory must be stated with specificity.
Any ground not stated in a timely objection is waived
unless the court, for good cause, excuses the failure.” Fed.
R. Civ. P. 33(b)(4). “General and conclusory objections
as to relevance, overbreadth, or burden are insufficient to
exclude discovery of requested information.” Melendez v.
Greiner, 01-cv-7888 (SAS)(DF), 2003 WL 22434101, at *1
(S.D.N.Y. Oct. 23, 2003). Boilerplate objections that include
unsubstantiated claims of undue burden, overbreadth and lack
of relevancy, accompanied by a lack of document production
or interrogatory responses, “are a paradigm of discovery
abuse.” Jacoby v. Hartford Life & Accident Ins. Co., 254
F.R.D. 477, 478 (S.D.N.Y. 2009).
II. Defendant's Motion for a Protective Order
Defendant seeks a protective order in response to
Interrogatory Nos. 10 and 11, seeking “all retaliation
complaints made against Rivera and [Defendant];” Document
Request No. 27, seeking “retaliation complaints or charges,
whether formal or informal, made by any person against
Rivera and/or [Defendant];” and Document Requests Nos.
28 and 29, seeking “[a]ll Documents relating to any
litigation – pending, threatened, or completed – concerning ...
retaliation raised by any person against either Rivera and/
or [Defendant].” See ECF No. 33. Defendant argues that
whether other employees filed claims of retaliation against
Defendant is not relevant to this case, in which Plaintiff does
not allege retaliation. Plaintiff argues that he is entitled to
information about any retaliation claims against Defendant
because they are relevant to claims of discrimination against
the Defendant.
*3 Other claims of discrimination against a defendant are
discoverable if limited to the same form of discrimination.
See Vuona v. Merrill Lynch & Co., 10-cv-6529 (PAE), 2011
WL 5553709, at *7 (S.D.N.Y. Nov. 15, 2011). Other claims
of discrimination, in this context, refers to discrimination
based on the same protected characteristic. See id. (holding
that plaintiff claiming gender discrimination was entitled to
discover other claims of gender discrimination but not entitled
to “non-gender-based complaints”); Bolia v. Mercury Print
Prods., Inc., 02-cv-6510T (MWP), 2004 WL 2526407, at *2
(W.D.N.Y. Oct. 28, 2004) (holding that plaintiff was entitled
only to “general discovery ... relating to discrimination
claims” based on “age or disability” because those types
of claims were at issue in the case). The ADA prohibits
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retaliation against an individual who has “opposed any act
or practice made unlawful under the ADA.” 42 U.S.C.
§ 12203. Although Plaintiff does not claim retaliation,
whether other employees have been retaliated against in
connecting with disability discrimination is relevant to
Plaintiff's claims. If a pattern of discrimination exists, it
may show that Defendant's proffered reasons for its decision
regarding Plaintiff is pretextual. See Moll v. Telesector Res.
Grp., Inc., 760 F.3d 198, 204 (2d Cir. 2014) (“Evidence
relating to company-wide practices may reveal patterns of
discrimination against a group of employees, increasing
the likelihood that an employer's offered explanation for
an employment decision regarding a particular individual
masks a discriminatory motive.”) (quoting Hollander v. Am.
Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990)). To the
extent Plaintiff seeks the identification of other claims of
retaliation, he is entitled to the identification of claims of
retaliation based on allegations of disability discrimination
only. Defendant's request for a protective order is DENIED
in part and Defendant is directed to respond to Interrogatories
Nos. 10, 11 and Document Requests 27-29 to the extent based
on disability discrimination and filed within the past three
years. Defendant's request is GRANTED in all other respects.
III. Plaintiff's Motion to Compel
Plaintiff seeks additional responses to four Interrogatories
(Nos. 6, 13, 19, 20) and seven requests for document
production (Request Nos. 3, 4, 17, 19, 20, 21, 22). See ECF
No. 35.
A. Interrogatories
First, Plaintiff moves to compel Defendant to identify “each
employee Defendant terminated during the Relevant Time
Period” (Interrogatory No. 6). Plaintiff contends that other
employees may be his comparators and whether Defendant
terminated other disabled employees is relevant. Defendant
claims that the Interrogatory is overbroad and vague, seeks
disclosure of personal and private information concerning
employees other than Plaintiff for a period of time that pre-
dates and post-dates Plaintiff's employment, and “constitutes
an overbroad fishing expedition” for irrelevant information.
To the extent Plaintiff seeks information about other disabled
employees who were disciplined or terminated for the same
or similar reasons as him, this information is likely relevant
to Plaintiff's claims. Interrogatory No. 6, however, is not
written to achieve the discovery of that information in
reasonable manner. The request is overbroad, and to the
extent it seeks relevant information, such information will
be provided in response to Plaintiff's other interrogatories
about discrimination claims. Plaintiff's request regarding
Interrogatory No. 6 is DENIED.
Second, Plaintiff moves to compel Defendant to identify
“all documents concerning the interactive process that
[Defendant] engaged in during the Relevant Time Period
concerning Plaintiff” (Interrogatory No. 13). Defendant
opposes on the grounds that the request seeks “information
that pre-dates and post-dates Plaintiff's employment ... is
not relevant to any claims or defenses ... constitutes an
overly broad fishing expedition ... [and] is vague and
incomprehensible ....” This request is specifically related
to Plaintiff's claim that Defendants did not engage in
the requisite interactive process with him. Defendant has
not met its burden of demonstrating that the requested
discovery is overly broad, or offered any specific objection
to the request. If Defendant cannot identify any documents
concerning the interactive process between Defendant and
Plaintiff, Defendant must state so. Plaintiff's request regarding
Interrogatory No. 13 is GRANTED.
Third, Plaintiff moves to compel Defendant to identify “any
documents concerning any complaints about Plaintiff's work
performance” (Interrogatory No. 19). Defendant responds
by directing Plaintiff to 13 documents, already produced
and identified by Bates numbers. Plaintiff's response is that
these documents are non-responsive. To the extent there are
additional documents concerning complaints about Plaintiff's
work performance, Defendant is to identify them. Defendant
also must indicate whether all documents responsive to
the Interrogatory have been identified. Plaintiff's request
regarding Interrogatory No. 19 is GRANTED.
*4 Finally, Plaintiff moves to compel Defendant to
identify “all persons [Defendant] offered to demote to
avoid terminating them” (Interrogatory No. 20). Defendant
objects on the grounds that this request is “incomprehensible,
not relevant to any claim or defense in this litigation,
irrelevant as it seeks information concerning employees other
than Plaintiff, and requires the adoption of the disputed
assumption that Defendant offered to demote employees
to avoid terminating them ....” Whether Defendant took
similar adverse employment action against other individuals
similarly situated to Plaintiff is relevant. Plaintiff is entitled to
know the identity of other employees during the relevant time
period who were offered a demotion to avoid termination.
Plaintiff's request is GRANTED and the Court directs
Defendant to respond to Interrogatory No. 20.
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B. Document Requests
1. Work Performance Assessments
Plaintiff seeks “[a]ll appraisals or assessments of Plaintiff's
work performance” (Request No. 3), “[a]ll draft appraisals or
assessments of Plaintiff's work performance” (Request No.
4), “a copy of all communications with or about Plaintiff’
that concern Plaintiff's work performance” (Request No.
19), and “[a]ll [d]ocuments concerning any complaints about
Plaintiff's work performance” (Request No. 21).
Defendant objects to each on the grounds that these requests
are duplicative. I do not find the requests duplicative,
although they are undoubtedly similar in nature. For each of
these requests, Defendant also refers Plaintiff to documents
previously produced. As discussed in this Order, and as
stated at the conference dated December 13, 2019, this is
not a complete response. To the extent there are additional
documents, other than those produced to date, responsive to
the requests, Defendant should produce them. If no other
responsive documents exist, Defendant must indicate as
much. Finally, Defendant argues that Request Nos. 19 and
21 are “overbroad” because they seek “all” communications
(Request No. 19) and “all” documents (Request No. 21).
These requests are not overbroad. Defendant has made no
specific showing that producing “all” documents responsive
to these relevant requests would be overly burdensome.
Plaintiff's motions regarding Request Nos. 3, 4, 19, and 21 are
GRANTED.
2. Discipline Records
Plaintiff seeks “Each Document that concerns any Discipline
imposed upon Plaintiff” (request No. 17). Defendant objects
on the grounds that this request is “unduly burdensome,”
that the definition of the term “discipline” is overbroad,
vague, and contradictory, and that the request is duplicative
of Request Nos. 3, 4, 12, 15, 19, and 21. I find each of
these objections without merit. Defendant offers no more than
conclusory reasons why this request is improper, and has
made no specific showing that the request would be overly
burdensome, as is required to defeat a motion to compel.
Plaintiff's motion regarding Request No. 17 is GRANTED.
3. Interactive Process Documents
Plaintiff argues that he is entitled to “All Documents
concerning the interactive process that [Defendant]
engaged in during the Relevant Time Period concerning
Plaintiff” (Request No. 20). Defendant objects on the
grounds that this request is “incomprehensible and vague
and overbroad as is seeks ‘All Documents,’ ” and refers to
several documents already produced. Plaintiff states that the
identified documents are not responsive.
Plaintiff is entitled to all documents concerning the interactive
process for the reasons discussed above in connection
with Interrogatory No. 13. Defendant merely repeats its
standardized objections in response to this request and does
not make the requisite specific showing that production
of these documents would be unduly burdensome. If no
other responsive documents exist, Defendant must indicate
as much. Plaintiff's motion regarding Request No. 20 is
GRANTED.
4. Personnel Files for Plaintiff's Replacement(s)
*5 Plaintiff finally argues that he is entitled to the
personnel files of any individuals who replaced him
(Request No. 22). Defendant objects on the grounds that
the request is overbroad, not relevant and vague. This is an
unsupported position; Plaintiff is entitled to the personnel
file of any of his replacements. See Go v. Rockefeller
Univ., 280 F.R.D. 165, 178 (S.D.N.Y. 2012). Defendant
indicates that notwithstanding its objections, it is “in the
process of compiling ... and redacting private information
from these files.” Defendant has not justified redactions
of the information of individual replacement employees.
Accordingly, the responsive documents are to be produced to
Plaintiff's counsel. Defendant may designate these documents
confidential and redact any sensitive information, such as
social security numbers, contained therein. Plaintiff's counsel
is directed to comply with the following orders: Plaintiff's
counsel may show or disclose the documents’ contents only
to other employees of his law firm, to Plaintiff, and to trial
witnesses and consultants, and only to the extent necessary
for trial preparation. The individuals to whom the documents’
contents are disclosed are also prohibited from using that
information for any purpose other than trial preparation.
Plaintiff's counsel is to maintain physical custody of the
documents, as well as of all copies, and is to utilize them
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solely for purposes of this litigation. Moreover, all such
confidential documents and all copies are to be returned
to Defendant's counsel at the conclusion of the litigation.
Plaintiff's motions regarding Request No. 22 is GRANTED
subject to the directives herein.
CONCLUSION
Defendant's motion for a protective order is GRANTED in
part and DENIED in part, and Plaintiff's motion to compel
is GRANTED in part and DENIED in part. Defendant is
directed to provide Plaintiff with supplemental responses
that comply with this Order within 10 days. The Court,
in the exercise of discretion, will not impose sanctions on
Defendant for necessitating Plaintiff's motion, despite the
fact that Defendant's positions for refusing to comply with
Plaintiff's routine discovery demands were not substantially
justified in this case, as the Court strongly implied during the
conference held December 13, 2019.
Additionally, at the upcoming discovery conference
scheduled below, the Court will address, among other issues,
Defendant's refusal to produce fact witnesses for depositions.
The Court notes in advance of that conference that Defendant
should be making every effort to cooperate in producing fact
witnesses for depositions. If Defendant does not intend to
produce such witnesses, it must immediately provide contact
information so that Plaintiff may subpoena them.
Finally, the Court hereby enters the following schedule:
(1) A discovery conference to address the issues raised
in Plaintiff's February 6, 2020 Letter is scheduled for
Tuesday, February 25, 2020, at 4:00 p.m. in Courtroom
219, Thurgood Marshall Courthouse, 40 Foley Square,
New York, New York. If this date is unavailable for
any party, they must contact Courtroom Deputy Rachel
Slusher immediately at (212) 805-0286.
(2) All discovery in this case shall close March 20, 2020.
(3) Any party that wishes to move for summary judgment
shall do so by April 17, 2020.
The Clerk of Court is respectfully directed to terminate the
motions at Docket Nos. 33 and 35.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 763740
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 832708
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Theodore HUDSON, Plaintiff,
v.
Christopher ARTUZ, Warden Philip
Coombe, Commissioner Sergeant
Ambrosino Doctor Manion Defendants.
No. 95 CIV. 4768(JSR).
|
Nov. 30, 1998.
Attorneys and Law Firms
Mr. Theodore Hudson, Great Meadow Correctional Facility,
Comstock.
Alfred A. Delicata, Esq., Assistant Attorney General, New
York.
MEMORANDUM AND ORDER
BUCHWALD, Magistrate J.
*1 Plaintiff Theodore Hudson filed this pro se action
pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's
complaint alleges defendants violated his constitutional rights
while he was an inmate at Green Haven Correctional
Facility. 1 Plaintiff's complaint was dismissed sua sponte by
Judge Thomas P. Griesa on June 26, 1995 pursuant to 28
U.S.C. § 1915(d). On September 26, 1995, the Second Circuit
Court of Appeals vacated the judgment and remanded the case
to the district court for further proceedings.
The case was reassigned to Judge Barbara S. Jones on
January 31, 1996. Defendants moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996.
Thereafter, the case was reassigned to Judge Jed S. Rakoff
on February 26, 1997. On February 26, 1998, Judge Rakoff
granted defendants' motion to dismiss, but vacated the
judgment on April 10, 1998 in response to plaintiff's motion
for reconsideration in which plaintiff claimed that he never
received defendants' motion to dismiss.
By Judge Rakoff's Order dated April 14, 1998, this case was
referred to me for general pretrial purposes and for a Report
and Recommendation on any dispositive motion. Presently
pending is defendants' renewed motion to dismiss. Plaintiff
filed a reply on July 6, 1998. For the reasons discussed
below, plaintiff's complaint is dismissed without prejudice,
and plaintiff is granted leave to replead within thirty (30) days
of the date of the entry of this order.
FACTS
Plaintiff alleges that he was assaulted by four inmates in the
Green Haven Correctional Facility mess hall on March 14,
1995. (Complaint at 4.) He alleges that he was struck with
a pipe and a fork while in the “pop room” between 6:00
p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends
that the attack left him with 11 stitches in his head, chronic
headaches, nightmares, and pain in his arm, shoulder, and
back. (Id.) Plaintiff also states that Sergeant Ambrosino
“failed to secure [the] area and separate” him from his
attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz
is that he “fail [sic] to qualify as warden.” (Complaint at
4.) Plaintiff names Commissioner Coombes as a defendant,
alleging Coombes “fail [sic] to appoint a qualified warden
over security.” (Amended Complaint at 5.) Plaintiff further
alleges that Dr. Manion refused to give him pain medication.
(Complaint at 5.) Plaintiff seeks to “prevent violent crimes”
and demands $6,000,000 in damages. (Amended Complaint
at 5.)
Defendants moved to dismiss the complaint, arguing that: (1)
the Eleventh Amendment bars suit against state defendants
for money damages; (2) the plaintiff's allegations fail to state
a claim for a constitutional violation; (3) the defendants are
qualifiedly immune from damages; and (4) plaintiff must
exhaust his administrative remedies before bringing this suit.
DISCUSSION
I find that plaintiff's complaint runs afoul of Rules 8 and
10 of the Federal Rules of Civil Procedure and dismiss the
complaint without prejudice and with leave to amend. Federal
Rule 8 requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to
give fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Powell v. Marine Midland
Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v.
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the
“principal function of pleadings under the Federal Rules is to
give the adverse party fair notice of the claim asserted so as
to enable him to answer and prepare for trial”).
*2 Rule 10 of the Federal Rules of Civil Procedure requires,
inter alia, that the allegations in a plaintiff's complaint be
made in numbered paragraphs, each of which should recite,
as far as practicable, only a single set of circumstances.
Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule
10 also requires that each claim upon which plaintiff seeks
relief be founded upon a separate transaction or occurrence.
Id. 2 The purpose of Rule 10 is to “provide an easy mode
of identification for referring to a particular paragraph in a
prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL
392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright &
A. Miller, Federal Practice and Procedure, § 1323 at 735
(1990)).
A complaint that fails to comply with these pleading rules
“presents far too heavy a burden in terms of defendants'
duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of”
a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y.1996). It may therefore be dismissed by the court.
Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When
a complaint does not comply with the requirement that it
be short and plain, the court has the power to, on its own
initiative, ... dismiss the complaint”). Dismissal, however, is
“usually reserved for those cases in which the complaint is
so confused, ambiguous, vague, or otherwise unintelligible
that its true substance, if any, is well disguised.” Id. In those
cases in which the court dismisses a pro se complaint for
failure to comply with Rule 8, it should give the plaintiff leave
to amend when the complaint states a claim that is on its
face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d
Cir.1995).
In determining whether a nonfrivolous claim is stated, the
complaint's allegations are taken as true, and the “complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to
be liberally construed in his favor when determining whether
he has stated a meritorious claim. See Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it
is difficult to determine the actual substance of the plaintiff's
complaint, outright dismissal without leave to amend the
complaint is generally disfavored as an abuse of discretion.
See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of
New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.
Mar.12, 1997).
Here, plaintiff's pro se complaint fails to satisfy the
requirements of Federal Rules 8 and 10. The complaint is
often illegible and largely incomprehensible, scattering what
appear to be allegations specific to plaintiff within a forest
of headnotes copied from prior opinions. Defendants have
answered with a boilerplate brief, which is perhaps all a
defendant can do when faced with such a complaint. The
Court is left with an insurmountable burden in attempting to
make a reasoned ruling on such muddled pleadings.
*3 Although plaintiff's complaint is substantially
incomprehensible, it appears to plead at least some claims
that cannot be termed frivolous on their face. For example,
plaintiff clearly alleges that inmates assaulted him and that
Dr. Manion refused to provide him medical attention. He also
appears to assert that Sergeant Ambrosino failed to protect
him from the attack or take steps to prevent future attacks.
(Plaintiff's Reply at 5). It is well established that an inmate's
constitutional rights are violated when prison officials act
with deliberate indifference to his safety or with intent to
cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d
Cir.1991). It is similarly well established that an inmate's
constitutional rights are violated when a prison doctor denies
his request for medical care with deliberate indifference to
the inmate's serious medical needs. Estelle v. Gamble, 429
U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v.
Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S.
1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although
plaintiff provides few facts to support his allegations, I
disagree with defendants' assertion that outright dismissal is
appropriate because it “appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Defendant's Memorandum at 5 (quoting
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)).
Because plaintiff's complaint does not comply with Rules 8
and 10, it is hereby dismissed without prejudice, and plaintiff
is granted leave to replead within thirty (30) days of the date
of the entry of this Order. In drafting his second amended
complaint, plaintiff is directed to number each paragraph and
order the paragraphs chronologically, so that each incident in
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
which he alleges a constitutional violation is described in the
order that it occurred. Plaintiff is also directed to specifically
describe the actions of each defendant that caused plaintiff
harm, and to do so in separate paragraphs for each defendant.
Plaintiff's complaint shall contain the facts specific to the
incidents plaintiff alleges occurred, and not any facts relating
to any case that has been decided previously by a court of law.
Plaintiff's complaint shall also contain a clear statement of the
relief he seeks in addition to monetary damages.
CONCLUSION
For the reasons set forth above, plaintiff's complaint is
dismissed without prejudice, and plaintiff is granted leave to
replead within thirty (30) days of the date of the entry of this
Order.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 1998 WL 832708
Footnotes
1 Plaintiff is presently incarcerated at Sullivan Correctional Facility.
2 Rule 10 states:
(b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered
paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set
of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim
founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a
separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:24-cv-01358-GTS-ML Document 29 Filed 02/18/26 Page 66 of 195

L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Disagreement Recognized by United House of Prayer for All People v.
Therrien Waddell, Inc., D.C., March 26, 2015
647 F.3d 419
United States Court of Appeals, Second Circuit.
L–7 DESIGNS, INC., Plaintiff–Appellant,
v.
OLD NAVY, LLC, Defendant–Appellee.
Docket No. 10–573–cv
|
Argued: Feb. 7, 2011.
|
Decided: June 1, 2011.
Synopsis
Background: Manager of design services and intellectual
property rights filed action against retailer alleging wrongful
termination and trade disparagement to its claims for breach
of contract, breach of the implied covenant of good faith and
fair dealing, and fraud. Retailer counterclaimed. The United
States District Court for the Southern District of New York,
Denny Chin, J., 2010 WL 157494 and 2010 WL 532160,
dismissed action. Plaintiff appealed.
Holdings: The Court of Appeals, Shira A. Scheindlin, District
Judge, of the United States District Court for the Southern
District of New York, sitting by designation, held that:
[1] manager stated claim that retailer had breached duty to
negotiate licensing agreement in good faith and
[2] wrongful termination claim had been stated.
Affirmed in part, vacated in part, and remanded.
Procedural Posture(s): On Appeal; Motion to Dismiss;
Motion to Dismiss for Failure to State a Claim.
West Headnotes (17)
[1] Federal Civil Procedure Matters
considered
On a motion for judgment on the pleadings, a
court considers the complaint, the answer, any
written documents attached to them, and any
matter of which the court can take judicial notice
for the factual background of the case. Fed.Rules
Civ.Proc.Rule 12(c), 28 U.S.C.A.
775 Cases that cite this headnote
[2] Federal Civil Procedure Matters
considered
On a motion for judgment on the pleadings,
a complaint is deemed to include any written
instrument attached to it as an exhibit, materials
incorporated in it by reference, and documents
that, although not incorporated by reference, are
integral to the complaint.
732 Cases that cite this headnote
[3] Federal Civil Procedure Matters
considered
On motion for judgment on the pleadings, email
exhibits were “attached” to answer, even if they
were only “part of” counterclaims that were filed
in same document. Fed.Rules Civ.Proc.Rules
10(c), 12(c), 28 U.S.C.A.
20 Cases that cite this headnote
More cases on this issue
[4] Federal Civil Procedure Matters
considered
Emails of which plaintiff had notice well before
defendant attached them to its answer because
plaintiff sent or received them were “integral”
to negotiation exchange that plaintiff identified
as basis for its complaint, and thus could be
considered by court on motion for judgment on
the pleadings. Fed.Rules Civ.Proc.Rules 10(c),
12(c), 28 U.S.C.A.
184 Cases that cite this headnote
More cases on this issue
[5] Federal Courts Judgment on the pleadings
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
A district court's decision to grant a motion for
judgment on the pleadings is reviewed de novo.
Fed.Rules Civ.Proc.Rule 12(c), 28 U.S.C.A.
18 Cases that cite this headnote
[6] Federal Civil Procedure Judgment on the
Pleadings
Federal Civil Procedure Determination of
Motion
Federal Civil Procedure Matters deemed
admitted
When deciding a motion for judgment on
the pleadings, the same standard applicable to
dismissals pursuant to a motion to dismiss for
failure to state a claim upon which relief can be
granted is employed; thus, all factual allegations
in the complaint are accepted as true and all
reasonable inferences are drawn in the plaintiff's
favor. Fed.Rules Civ.Proc.Rule 12(b)(6), (c), 28
U.S.C.A.
722 Cases that cite this headnote
[7] Contracts Agreement to make contract in
future; negotiations in general
Under New York law, parties who enter into
binding preliminary agreements accept a mutual
commitment to negotiate together in good faith
in an effort to reach final agreement; these
agreements do not commit the parties to reach
their ultimate contractual objective, but, instead,
they create an obligation to negotiate the open
issues in good faith in an attempt to reach the
objective within the agreed framework.
17 Cases that cite this headnote
More cases on this issue
[8] Contracts Agreement to make contract in
future; negotiations in general
Under New York law, parties who enter
into binding preliminary agreements may not
renounce the deal, abandon the negotiations, or
insist on conditions that do not conform to the
preliminary agreement.
16 Cases that cite this headnote
More cases on this issue
[9] Contracts Agreement to make contract in
future; negotiations in general
In effect, an agreement to agree under New York
law buys a party an assurance that the transaction
will falter only over a genuine disagreement, thus
allowing a party strapped for time or money to
go ahead with arrangements with a sufficient
degree of confidence in the outcome; the parties
may abandon the transaction as long as they
have made a good faith effort to close the deal
and have not insisted on conditions that do not
conform to the preliminary writing.
11 Cases that cite this headnote
More cases on this issue
[10] Contracts Sufficiency of allegations to
show breach
Federal Civil Procedure Contract cases in
general
To state a claim for breach of contract for failure
to negotiate in good faith, a plaintiff must allege
the specific instances or acts that amounted to the
breach; generalized allegations and grievances
will not suffice to survive a motion for judgment
on the pleadings. Fed.Rules Civ.Proc.Rule 12(c),
28 U.S.C.A.
35 Cases that cite this headnote
[11] Damages Breach of contract
Damages Breach of contract
On a claim under New York law for breach of
contract for failure to negotiate in good faith,
out-of-pocket costs incurred in the course of
good faith partial performance are appropriate,
although lost profits are not available where no
agreement is reached.
49 Cases that cite this headnote
[12] Copyrights and Intellectual
Property Performance and breach
Manager of design services and intellectual
property rights stated claim that retailer had
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
breached duty under New York law to negotiate
licensing agreement in good faith on allegations
that retailer did not participate in negotiations
for nine months and never provided single
substantive comment with respect to draft license
at any time in particular year.
More cases on this issue
[13] Copyrights and Intellectual
Property Performance and breach
Manager of design services and intellectual
property rights stated claim that retailer had
breached duty under New York law to
negotiate licensing agreement in good faith
on allegations that retailer had made repeated
material representations that it would negotiate
terms of license agreement in good faith, which it
subsequently learned were false, such as retailer's
assurances to manager that its legal team already
was working on licensing agreement template,
and its multiple promises to get back to manager,
which either never happened or only occurred
after substantial delay.
2 Cases that cite this headnote
More cases on this issue
[14] Copyrights and Intellectual
Property Performance and breach in
general
Manager of design services and intellectual
property rights stated claim that retailer had
breached duty under New York law to negotiate
licensing agreement in good faith on allegations
that retailer had proposed terms it knew to be in
bad faith and economically unfair to manager,
believing they would be rejected, and then
reneged when manager did accept.
More cases on this issue
[15] Copyrights and Intellectual
Property Performance and breach
Design service provider stated wrongful
termination claim under New York law on
allegations that retailer's termination letter
provided only notice of termination, effective
immediately, although agreement had required
notice of material breach, 30 days' opportunity to
cure, failure to cure material breach, and notice
of termination.
4 Cases that cite this headnote
More cases on this issue
[16] Federal Courts Altering, amending,
modifying, or vacating judgment or order;
proceedings after judgment
Motions for reconsideration are generally
reviewed under an abuse of discretion standard.
6 Cases that cite this headnote
[17] Federal Courts Pleading
A denial of leave to amend that is based on a legal
interpretation, such as for futility, is reviewed de
novo. Fed.Rules Civ.Proc.Rule 15, 28 U.S.C.A.
3 Cases that cite this headnote
Attorneys and Law Firms
*421 Virginia R. Richard (Lori J. Van Auken on the
briefs), Winston & Strawn LLP, New York, NY, for Plaintiff–
Appellant.
Bruce P. Keller (Shannon R. Selden on the brief), Debevoise
& Plimpton LLP, New York, NY, for Defendant–Appellee.
Before: DENNIS JACOBS, Chief Judge, PETER W. HALL,
Circuit Judge, SHIRA A. SCHEINDLIN, * District Judge.
Opinion
SHIRA A. SCHEINDLIN, District Court Judge:
Plaintiff–Appellant L–7 Designs (“L–7”) appeals from a
judgment on the pleadings of the United States District
Court for the Southern District of New York (Denny Chin,
Judge ), entered on January 21, 2010, dismissing five counts
asserted in L–7's Complaint (the “Complaint” or “Compl.”),
each arising out of a Creative Services Agreement (the
“Agreement”) entered into between L–7 and Defendant–
Appellee Old Navy (“Old Navy”) in September of 2007. We
conclude that the District Court erred in dismissing Count
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
III against Old Navy for failure to negotiate in good faith an
alleged agreement to develop and launch a TODD OLDHAM
branded line of merchandise (the “Branded Line”) to be sold
exclusively in Old Navy stores. The District Court also erred
in dismissing Count I for declaratory judgment that Old Navy
wrongfully terminated the parties' Agreement under which L–
7's principal, Todd Oldham, was to provide design services
to Old Navy. Accordingly, we affirm in part and vacate in
part the District Court's judgment, and we remand for further
proceedings; in so doing we reverse in part the order of the
District Court that dismissed the Complaint and reinstate the
Complaint to the extent provided in this Opinion.
BACKGROUND 1
I. Materials Properly Considered on a
Motion for Judgment on the Pleadings
One of the critical issues in this appeal is whether the District
Court properly considered not only the Complaint, Old Navy's
Answer, and the written documents attached to the Complaint
in deciding Old Navy's Rule 12(c) motion, but also five
email exhibits to Old Navy's Counterclaims—exhibits that
were “attached” to Old Navy's Answer only by virtue of the
*422 fact that its Answer and Counterclaims were filed in
the same document. L–7 argues the District Court improperly
considered the exhibits without converting Old Navy's 12(c)
motion to one for summary judgment, as required by Rule
12(d).
[1] [2] [3] [4] On a 12(c) motion, the court considers
“the complaint, the answer, any written documents attached
to them, and any matter of which the court can take judicial
notice for the factual background of the case.” Roberts v.
Babkiewicz, 582 F.3d 418, 419 (2d Cir.2009). “A complaint
is [also] deemed to include any written instrument attached
to it as an exhibit, materials incorporated in it by reference,
and documents that, although not incorporated by reference,
are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57,
67 (2d Cir.2004) (citations omitted) (quoting Chambers v.
Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002)). There
is no question that the email exhibits were “attached” to
Old Navy's Answer, even if they were only “part of” Old
Navy's Counterclaims. See Fed.R.Civ.P. 10(c) (“a copy of a
written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes”) (emphasis added). Moreover,
these emails—of which L–7 had notice well before Old Navy
attached them to its Answer (because L–7 sent or received
them)—were “integral” to the negotiation exchange that L–
7 identified as the basis for its Complaint. See Sira, 380
F.3d at 67 (document not expressly cited in complaint was
“incorporated into the pleading because [it] was integral to
[plaintiff's] ability to pursue” his cause of action); Chambers,
282 F.3d at 153 (document “integral” to complaint where
complaint “relie[d] heavily upon its terms and effect”)
(quotation marks omitted); Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir.1991) (necessity of translating
motion into one under Rule 56 “largely dissipated” where
plaintiff had “actual notice” of information in documents and
“relied upon [them] in framing the complaint”). “Plaintiffs'
failure to include matters of which as pleaders they had
notice and which were integral to their claim—and that
they apparently most wanted to avoid—may not serve as a
means of forestalling the district court's decision on [a 12(b)
(6) ] motion.” Cortec, 949 F.2d at 44. For these reasons,
in reviewing de novo Old Navy's motion for judgment on
the pleadings, we draw all facts—which we assume to be
true unless contradicted by more specific allegations or
documentary evidence—from the Complaint and from the
exhibits attached thereto, 2 and we also consider the emails
attached to Old Navy's Counterclaims. See Blue Tree Hotels
Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide,
Inc., 369 F.3d 212, 222 (2d Cir.2004) (discrediting allegation
“belied” by letters attached to the complaint); Hirsch v. Arthur
Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995) (“General,
conclusory allegations need not be credited ... when they are
belied by more specific allegations of the complaint.”). The
facts thus derived, viewed in the light most favorable to L–
7, are as follows.
II. The Parties
L–7's principal, Todd Oldham, is a world famous artist,
fashion and graphic designer, photographer, writer, and
television personality. He formed L–7 in 1989 to manage
his design services and intellectual property rights, including
eight U.S. federal registrations for the mark TODD
OLDHAM. “[A] luminary in the fashion and design industry
for over twenty years,” Oldham is “considered one of
the most important designers of fashion and *423 home
furnishings working today” and “the singular talent behind
the internationally famous TODD OLDHAM brand.” Compl.
¶ 8. For more than a decade, Oldham and L–7 have
collaborated on a variety of TODD OLDHAM branded
merchandise. 3
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L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
Old Navy, a subsidiary of Gap Inc., operates a chain of retail
apparel stores, with more than a thousand stores throughout
the United States and Canada. For at least the last five years,
Old Navy has been suffering declining sales. One of its
strategies for increasing sales has been to increase its appeal
to younger consumers.
III. The Agreement
In the spring of 2007, L–7 approached Old Navy to discuss
the possibility of entering into a relationship with L–7, and
Old Navy, “enthusiastic about this possibility,” ultimately
requested that Oldham become the company's new Design
Creative Director. Id. ¶ 26. In order to induce Oldham to
join Old Navy's design team, Old Navy proposed to introduce
a TODD OLDHAM branded line of clothing, and to pay
royalties to L–7 in the form of five percent of the Branded
Line's sales. Faced with continuing declining sales, Old Navy
pushed Oldham to enter into an agreement quickly so that it
could publicly announce both Oldham's appointment as Old
Navy's Design Creative Director and also the launching of the
Branded Line.
On September 21, 2007, the parties entered into the
Agreement, 4 under which L–7 was to perform certain
“Services” and provide certain “Deliverables,” as set forth in
a “Scope of Work” (the “SOW”) attached to the Agreement.
Agreement § 1. Under the SOW, Oldham would provide
design services for Old Navy for three years in exchange for
an annual “fee” of $2 million; in addition, Oldham would
receive a guaranteed bonus of $0.5 million in year one and,
in years two and three, 1.25 percent of the year's incremental
sales (not to exceed $6 million). SOW §§ 1, 2. Section
5 provided that during the term of the Agreement, “either
party may terminate this Agreement, effective immediately
upon notice thereof, in the event of a material breach of this
Agreement that remains uncured after thirty (30) days written
notice of the breach to the other party.”
IV. The Licensing Agreement
Section 5 of the SOW, entitled “Todd Oldham Branded Line,”
provided as follows:
a. In September 2007, the parties will announce publicly
that Todd Oldham/[L–7] shall be serving as Design
Creative Director of Old Navy and that it is the intent of the
parties to develop and launch a line of products that will
bear TODD OLDHAM Marks to be sold exclusively at Old
Navy stores at a future time.
b. [L–7] and Old Navy acknowledge and agree that the
specific terms and conditions related to this proposed
line of products bearing TODD OLDHAM Marks are
to be negotiated and agreed upon by the parties in a
separate agreement. The parties plan to enter into a separate
agreement related to these products by October 1, 2008.
c. The parties agree that this separate agreement will
contain at least the following: (1) royalty fees paid to [L–
7] of 5% of Old Navy's retail sales for this particular line
only (not all Old Navy products) and (2) agreement and
final *424 approval by both Old Navy and [L–7] as to the
collections and products to be sold by Old Navy.
On September 21, 2007, Old Navy announced via a press
release that it intended to launch the Branded Line. On
October 3, 2007, Monika Fahlbusch (the Old Navy executive
assigned to the Branded Line) emailed Vital Vayness (L–7's
representative) to “recommend we plan to begin [discussion
on the license agreement for the Branded Line] in our new
fiscal year—say in April? We have until October so there is no
rush....” Ex. 19. Thereafter, L–7 and Oldham performed their
obligations under the Agreement, and Old Navy executives
publicly and privately praised Oldham's performance as
Design Creative Director.
V. April–October 2008 Negotiations
On April 2, 2008, L–7 (Vayness) “initiated negotiations to
finalize” the licensing agreement for the Branded Line by
emailing Fahlbusch (Old Navy) L–7's standard form license
agreement and a term sheet that outlined a three-year initial
term and annual guaranteed minimum royalties (the “April
Proposal”). Compl. ¶ 44. The email suggested that Old Navy
“formulate [its] initial thoughts, needs and objectives” and
then “present to [Oldham] in [M]ay” while Fahlbusch (Old
Navy), Vayness (L–7), and Old Navy's attorney “begin work
on the language of the contract.” Ex. 17.
Commencing in May 2008, Old Navy made “material
representations” that were “false, as [L–7] subsequently
learned.” Compl. ¶ 47; accord Ex. 19. For example in
May of 2008, Fahlbusch (Old Navy) assured Vayness (L–7)
that she was “already working with our legal team on the
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licensing agreement template.” Ex. 19. But throughout the
late spring and summer of 2008, L–7 repeatedly followed
up with Fahlbusch and Old Navy's Executive Vice President,
Douglas Howe, seeking feedback on the April Proposal and
on a “redirection” Old Navy was taking in its “approach,”
with little or no followup. Exs. 19–20. During one meeting in
June of 2008 at which Oldham (L–7), Howe (Old Navy), and
Tom Wyatt (another Old Navy executive) were present, Old
Navy proposed postponing discussions of the Branded Line.
Nevertheless, on June 12, 2008, Vayness (L–7) indicated to
Fahlbusch (Old Navy) that “things are proceeding in the right
direction with the branded line.” Ex. 19.
In a late July 2008 email, Fahlbusch (Old Navy) suggested
that the reason for Old Navy's delay in getting back to L–
7 was that “next steps” on the Branded Line license would
be “impacted by who is named President.” Id. Vayness (L–
7) responded the same day, reminding Fahlbusch (Old Navy)
that “we have a provision in the contract calling for the license
agreement to be entered into by October 1st.” Id.
On September 2, 2008, Vayness (L–7) emailed Fahlbusch
(Old Navy) seeking Old Navy's feedback on the terms set
forth in L–7's April 2008 email, indicating that L–7 was
“ready to discuss [11 points] as early as possible.” Ex. 20. L–
7 followed up with emails and telephone calls to Fahlbusch
(Old Navy) on September 7, 9, and 10, 2008. On September
10, 2008, Fahlbusch (Old Navy) recommended that Oldham
start working “directly” with Howe “as it seems we all have
a different understanding of the numerous conversations in
recent months related to the branded line.” Id.
On September 30, 2008, Wyatt (Old Navy) advised L–7 in
a telephone call for the first time that Old Navy wished to
postpone the signing of a license for the Branded Line “
‘indefinitely.’ ” Compl. *425 ¶ 52 (quoting Wyatt). 5 In
response, L–7 stated that it expected Old Navy to provide
it with definitive dates to restart negotiations, enter into
the licensing agreement, and launch the Branded Line, and
compensation for the postponement of the initial October 1,
2008 signing date. Old Navy failed to provide a response
within a week as promised.
VI. Fall 2008 Notice of Breach and Demand for Damages
On October 7, 2008, L–7 advised Old Navy's in-house
counsel that Old Navy was in material breach of the
Agreement for failing to negotiate in good faith. See Ex.
23. Counsel for Old Navy responded a week later, stating
Old Navy's view that the Agreement “does not obligate Old
Navy to enter into a separate license agreement for Todd
Oldham branded products” and that although Old Navy did
not “foreclose the possibility of engaging in discussions about
Todd Oldham branded products in the future if business
conditions permit, [Old Navy is] not currently in a position
to make a commitment to any such future discussions.” Ex.
24. The next day, Wyatt, then President of Old Navy, told
Oldham that Old Navy was “ ‘very, very sorry’ but because
of economic conditions, Old Navy could not follow through
with the promised license for a TODD OLDHAM branded
line of apparel to be carried exclusively in Old Navy stores.”
Compl. ¶ 55.
After waiting thirty days from Old Navy's receipt of L–
7's October 7th notice of breach, outside counsel for L–
7 sent a letter to Old Navy requesting that Old Navy
remedy the damage to L–7 caused by Old Navy's breach
by (1) compensating L–7 for lost royalties and reputational
damages (estimated at $75 million) and (2) paying Oldham
his expected fees for the second and third years of the
Agreement ($4 million).
VII. Old Navy's December 2008 Response
On December 3, 2008, counsel for Old Navy responded,
denying that Old Navy was obligated to enter into a license
agreement or had failed to negotiate in good faith. Counsel for
Old Navy explained that, in the course of their negotiations,
differences emerged in the parties'
positions, including on such essential
issues as the types of products to be
included in the line, how many stores
would be included in a launch, the
staffing necessary to support such a
line, and, most importantly, the timing
of any such launch.
Ex. 26. According to Old Navy's counsel, “business
circumstances made an extensive launch in the immediate
near term unfeasible.” Id. Thereafter, from December 15,
2008 to February 6, 2009, Old Navy engaged in “sham
negotiations,” falsely representing that it fully intended to
enter into a license agreement. Compl. ¶ 124.
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VIII. The Old Navy January 2009 Proposal
The parties met once in December 2008 and several times
in January 2009 to “work out the details of the license
agreement,” a further draft of which L–7 supplied to Old
Navy on December 15, 2008. Compl. ¶ 60. On January 8,
2009, one hour before a scheduled conference call, Old Navy
proposed a launch at 100 Old Navy stores (“As you know,
our history of presenting third party-branded product in our
stores is relatively short ...”); a one-year *426 commitment
beginning in the spring of 2010; no additional personnel
resources; and a one-year projected royalty of $1.5 million
(“... our previous discussions have never contemplated any
royalty minimum guarantees, and, as a general rule, our
company has not and will not agree to minimum guarantees.
This has been consistent in all of our recent agreements.”) (the
“January Proposal”). Ex. 27.
IX. January 2009 Discussions 6
Oldham responded immediately by email to Old Navy's
January Proposal:
[Your projections] seem
EXTREMELY uncommitted to me.
This feels like an effort to absolve old
navy's contractual responsibilities and
not a commitment to build a new brand
that was made to me when i joined and
what you reiterated to me last month.
100 stores will not work. the 1 million
in launch dollars will not be effective.
the one year commitment is too brief as
there are so many hiccups in launching
a brand.... i hope that we can get this
resolved but we are very far away from
a reasonable plan. the volume of work
necessary to bring a project of this
scale to bloom is at great odds with
your financial projections.
Counterclaims Ex. A. In the discussions that followed, L–7
asked for a minimum guarantee of $37.5 million for a three-
year term and then reduced the request to $20 million for a
two-year term. On January 16, 2009, L–7 inquired of Old
Navy whether it had “made any changes to any of its positions
as stated [in the January Proposal].” Id. Ex. E. Old Navy
responded the next day:
To date, we have not been
presented with any comprehensive
counteroffer and instead there has
been a [sic] insistence on large
guaranteed minimum payments that
we have explained are unacceptable
and inconsistent with our business
plans and practices....
Id. Ex. D. Additional emails were exchanged, and on January
29, 2009, the parties held a conference call, during which
they agreed to talk again after speaking with their respective
“principals.” Ex. 28. The same day, L–7 emailed Old Navy
a “revised proposal” reflecting Oldham's input on the points
discussed during the call. Id.
X. February 2009 Communications
Four days later, on February 2, 2009, Old Navy responded
to L–7's January 29th email, advising L–7 that “despite
our best efforts to negotiate an agreement that would be
reasonable and mutually acceptable, we have not reached and
will not be able to reach common ground on key business
terms,” reiterating that minimum guaranteed payments were
“inconsistent with our business plans and practices.” Id.
Vayness (L–7) responded the same day, explaining his
“surprise” at Old Navy's email given that the January 29,
2009 call was “completely amicable, polite, professional, and
[ ] friendly” and that none of the points discussed during
that call “was left off as a deal breaker.” Id. The email
went on to list items as to which L–7 contended there was
agreement (“number of stores,” “products,” “timeline and
term,” “marketing,” “royalty rate,” and “territory”); items
that it was “now prepared” to accept, including no minimum
guaranteed royalties; two points that needed clarification
(“personnel” and “development budget”); and one issue “to
be agreed to,” namely ownership of “designs.” *427 7 Id.
On February 6, 2009, Old Navy advised L–7 that material
“open issues” remained, and that, in light of the nature of the
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negotiations, Old Navy did not believe that a “collaborative
partnership” could be established. Compl. ¶ 62.
XI. Old Navy's Termination of the Agreement
On February 18, 2009, L–7 commenced this lawsuit against
Old Navy, filing under seal a complaint alleging breach
of contract, breach of the implied duty of good faith and
fair dealing, and fraud. Two days later, on February 20,
2009, counsel for Old Navy sent L–7 a letter terminating the
Agreement (“Termination Letter”) on the grounds that L–7
had
materially breached the [Agreement]
by filing a lawsuit against Old Navy,
by failing to provide meaningful input
on design processes and procedures,
by failing to participate meaningfully
in meetings with the Old Navy creative
team and by otherwise failing to
perform its obligations under the
[Agreement].
Ex. 29. Old Navy did not provide L–7 with an opportunity
to cure its alleged breaches. Prior to the February 20th
Termination Letter, Old Navy had voiced no complaints about
Oldham's performance under the Agreement; instead, he was
continuously praised.
PROCEDURAL HISTORY
L–7 filed its first complaint in the District Court on February
18, 2009, under seal. On April 17, 2009, L–7 filed under seal
the amended Complaint at issue in this appeal, adding claims
for (I) wrongful termination and (II) trade disparagement to
its claims for (III) breach of contract, (IV) breach of the
implied covenant of good faith and fair dealing, and (V) fraud.
Old Navy filed its Answer and Counterclaims on May 1,
2009, and L–7 filed a Reply on May 8, 2009. Old Navy's
motion for judgment on the pleadings was fully submitted on
August 21, 2009. On September 9, 2009, the District Court
stayed depositions and ruled that “a new discovery cut-off
will be set after the pending [Rule 12(c) ] motion is decided.”
Special Appendix to L–7 Appellate Brief (“L–7 App. Brief”)
at 66. In an opinion dated January 19, 2010, it granted Old
Navy's motion, dismissing L–7's Complaint with prejudice. It
issued a slightly amended opinion on January 21, 2010. L–7
moved to amend the judgment and replead two weeks later.
The District Court denied L–7's motion in an opinion dated
February 16, 2010.
I. Motion for Judgment on the Pleadings
A. Count III: Breach of Contract for
Failure to Negotiate in Good Faith
The District Court first dismissed L–7's claim for breach of
contract for Old Navy's failure to enter into the licensing
agreement. 8 It nonetheless concluded that Section 5 of the
SOW “undoubtedly did create [an] obligation on the part of
the parties to negotiate a license agreement in good faith,”
L–7 Designs, Inc. v. Old Navy, LLC, No. 09 Civ. 1432, 2010
WL 157494, at *8 (S.D.N.Y. Jan. 19, 2010). However, it
found that the “record” of the “detailed documentation of
the negotiations between *428 Old Navy and L–7 over the
anticipated license agreement,” combined with the detailed
allegations of the Complaint, “show, unequivocally, that L–
7's claim that Old Navy failed to negotiate in good faith is
not plausible.” Id. First, based on the fact that “the parties
exchanged numerous telephone calls and emails and, as L–
7 acknowledged, progress in the negotiations was made,” it
concluded that Old Navy “negotiated for some ten months.”
Id. Although “the parties seemed to reach an impasse and
negotiations broke down” in the fall of 2008, “the parties
resumed talks and met several times in December 2008
and January 2009” before L–7 rejected Old Navy's January
Proposal. Id.
Second, the District Court concluded that because “L–7 was
making extraordinarily high demands,” it was “not surprising
that Old Navy resisted these demands,” noting that at the
agreed-upon five percent royalty rate “some $200 million in
sales of Todd Oldham branded products would had to have
been generated in one year to generate” even the reduced
royalty request proposed by L–7 ($20 million over two years).
Id.
Third, L–7's only non-conclusory, specific “allegation” was
“its assertion that Old Navy decided to ‘renege’ on its own
January 8, 2009, proposal, and that this decision ‘is itself
damning evidence of [Old Navy's] bad faith.’ ” Id. at *9
(quoting L–7's Memorandum of Law in Opposition to Old
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Navy's Motion for Judgment on the Pleadings (“L–7 12(c)
Opp.”) at 23). But, the District Court concluded, the emails
attached to Old Navy's Counterclaims rendered this assertion
“not plausible” because they showed that “L–7's purported
acceptance of the January 8th proposal on February 2, 2009,
clearly was not [ ] an acceptance of the proposal ‘in its
entirety.’ ” Id. (quoting Compl. ¶ 61).
Fourth, because “insisting on ‘terms to the point of
impasse’ [is] not sufficient to show bad faith,” L–7 could
not argue that “Old Navy's refusal to agree to a minimum
guarantee [was] evidence of bad faith.” Id. (citing Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 96 F.3d 275, 279 (7th
Cir.1996)). 9
B. Count I: Wrongful Termination
The District Court also dismissed Count I—a request for
declaratory judgment (1) that Old Navy failed to provide
(i) written notice of its claims of breach or (ii) 30
days' opportunity to cure any claimed breach; (2) that
the Termination Letter did not effect a termination of the
Agreement; and (3) that Old Navy wrongfully terminated
the Agreement in retaliation for L–7's lawsuit against it. The
District Court offered three reasons why “the claim fails
as a matter of law,” 2010 WL 157494, at *9. First, “Old
Navy did provide written notice of termination.” Id. at *10
(citing the Termination Letter). Second, while acknowledging
Old Navy's admission that it failed to provide a 30–day
cure period, the District Court found that it was relieved
of this obligation because, for two reasons, notice of cure
would have been futile. Initially, the District Court reasoned,
“[i]t is difficult to imagine that Oldham could perform [his]
duties after he sued Old Navy.” Id. (citing Allbrand Discount
Liquors, Inc. v. Times Square Stores Corp., 60 A.D.2d 568,
399 N.Y.S.2d 700, 701 (2d Dep't 1977), for the proposition
that “when one party ‘will not live up to the contract, the
aggrieved party is *429 relieved from the performance of
futile acts' ”). In particular,
Oldham could not very well continue to help Old Navy
creatively, including with respect to public relations
matters, while pursuing a lawsuit against Old Navy.
( [Agreement] § 1). Among other things, Oldham was
supposed to, under the [Agreement], “[m]otivate, inspire,
coach, and share vision, insight and passion with Old
Navy's creative team,” and he was supposed to “[p]rovide
input” to Old Navy's president and leadership team. (Id.).
Id. Notice of breach would also have been futile, the
District Court reasoned, because “[e]ven a withdrawal of the
complaint—and it is highly unlikely that L–7 would have
withdrawn the complaint if Old Navy had sent L–7 a notice to
cure—would not have undone the harm caused by the public
filing of a lawsuit against Old Navy.” Id. Third, Count I failed
because “even assuming the failure to give a cure period was
a breach, in the context here it surely was not a material one.”
Id.
After then dismissing Counts II and V of the Complaint for
trade disparagement and fraud, the District Court granted Old
Navy's motion for judgment on the pleadings and dismissed
L–7's claims with prejudice. Judgment was entered in favor
of Old Navy on January 21, 2010.
II. Motion to Amend and Replead
L–7 filed a motion to amend the judgment and replead
on February 5, 2010 “based on information contained in
documents produced by Old Navy following the close of
briefing” on the Rule 12(c) motion. L–7 Motion to Amend and
Replead at 1. The District Court denied the motion, reasoning
that L–7 had already had “two bites at the apple, as it has
already filed two complaints”; “the request is untimely, as L–
7 has had the documents for months” yet “never indicated a
desire to amend its amended complaint prior to the granting
of the motion for judgment on the pleadings”; and, because
“the additional documents L–7 now seeks to rely on” would
not change the District Court's conclusions, “the proposed
amendment therefore would be futile.” L–7 Designs, Inc. v.
Old Navy, LLC, No. 09 Civ. 1432, 2010 WL 532160, at *2
(S.D.N.Y. Feb. 16, 2010). L–7 filed a timely notice of appeal
on February 17, 2010.
DISCUSSION
I. Motion for Judgment on the Pleadings
A. Standard of Review
[5] [6] We review de novo a district court's decision to
grant a motion for judgment on the pleadings pursuant to
Rule 12(c). See Hayden v. Paterson, 594 F.3d 150, 160 (2d
Cir.2010). In deciding a Rule 12(c) motion, we “employ[ ] the
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same ... standard applicable to dismissals pursuant to [Rule]
12(b)(6). Thus, we will accept all factual allegations in the
[C]omplaint as true and draw all reasonable inferences in
[Plaintiff's] favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d
Cir.2009) (quotation marks and citation omitted). 10
*430 In Ashcroft v. Iqbal, the Supreme Court set forth
a “two-pronged approach” to evaluate the sufficiency of a
complaint. 129 S.Ct. at 1949–50. “First, although a court
must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions,
and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quotation
marks and alterations omitted). “Second, only a complaint
that states a plausible claim for relief survives a motion
to dismiss, and determining whether a complaint states a
plausible claim for relief will ... be a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id. (quotation marks and alteration
omitted). “The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949
(quotation marks omitted). Plausibility thus depends on a host
of considerations: the full factual picture presented by the
complaint, the particular cause of action and its elements, and
the existence of alternative explanations so obvious that they
render plaintiff's inferences unreasonable. See id. at 1947–52.
B. Counts II, IV, and V
We affirm the District Court's dismissal of the trade
disparagement and common law fraud claims substantially
for the reasons articulated by the District Court. We also
affirm dismissal of the claim for breach of the implied duty
of good faith and fair dealing, but for a different reason. See
infra note 18.
C. Count III: Breach of Contract for
Failure to Negotiate in Good Faith
1. Applicable Law
[7] [8] Under New York law parties who enter into binding
preliminary agreements, such as Section 5 of the SOW,
“accept a mutual commitment to negotiate together in good
faith in an effort to reach final agreement....” Teachers Ins.
& Annuity Ass'n of Am. v. Tribune Co., 670 F.Supp. 491, 498
(S.D.N.Y.1987). These agreements do not commit the parties
to reach their ultimate contractual objective; instead, such
agreements create an “obligation to negotiate the open issues
in good faith in an attempt to reach the ... objective within
the agreed framework.” Adjustrite Sys., Inc. v. GAB Bus.
Servs., Inc., 145 F.3d 543, 548 (2d Cir.1998) (quotation marks
omitted). This obligation bars a party from “renouncing the
deal, abandoning the negotiations, or insisting on conditions
that do not conform to the preliminary agreement.” Tribune,
670 F.Supp. at 498.
[9] “In effect, an agreement to agree buys a party an
assurance that the transaction will falter only over a genuine
disagreement, thus allowing a party strapped for time or
money to go ahead with arrangements with a sufficient
degree of confidence in the outcome.” P.A. Bergner & Co.
v. Martinez, 823 F.Supp. 151, 156 (S.D.N.Y.1993); see also
Penguin Grp. (USA) Inc. v. Steinbeck, No. 06 CV 2438, 2009
WL 857466, at *2 (S.D.N.Y. Mar. 31, 2009) (“The linchpin
of negotiation is not that one side capitulates to the other,
but that there is a good faith, honest, articulation of interests,
positions, or understandings.”); *431 Venture Assocs. Corp.,
96 F.3d at 278 (“The parties may want assurance that their
investments in time and money and effort will not be wiped
out by the other party's foot-dragging or change of heart
or taking advantage of a vulnerable position created in the
negotiation.”). “[T]he parties may abandon the transaction as
long as they have made a good faith effort to close the deal
and have not insisted on conditions that do not conform to the
preliminary writing.” Adjustrite, 145 F.3d at 548.
[10] To state a claim for breach of contract for failure to
negotiate in good faith, a plaintiff must “allege the specific
instances or acts that amounted to the breach”; “generalized
allegations and grievances” will not suffice to survive a
motion for judgment on the pleadings. U.S. ex rel. Smith v.
New York Presbyterian Hosp., No. 06 Civ. 4056, 2007 WL
2142312, at *16 (S.D.N.Y. July 18, 2007); accord Prospect St.
Ventures I, LLC v. Eclipsys Solutions Corp., 23 A.D.3d 213,
804 N.Y.S.2d 301, 302 (1st Dep't 2005).
[11] Although lost profits are not available where no
agreement is reached, see Goodstein Constr. Corp. v. City of
New York, 80 N.Y.2d 366, 374, 590 N.Y.S.2d 425, 604 N.E.2d
1356 (1992), out-of-pocket costs incurred in the course of
good faith partial performance are appropriate, see Arcadian
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Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 74 n. 2 (2d
Cir.1989).
2. Application
[12] L–7 stated a plausible claim that Old Navy breached
its obligation to negotiate the license agreement in good
faith. The three bases alleged for this claim were that Old
Navy (1) “failed to participate in negotiations from April
2008 to December 15, 2008 and never provided a single
substantive comment with respect to the draft license at any
time in 2008,” L–7 12(c) Opp. at 5; 11 (2) made “repeated
material representations that it would negotiate the terms of
the license agreement in good faith,” which L–7 subsequently
learned were “false,” Compl. ¶ 47; and (3) “proposed terms
it knew to be in bad faith and economically unfair to [L–
7], believing they would be rejected, and then reneged when
[L–7] did accept,” L–7 12(c) Opp. at 23. These are legally
cognizable theories for breach of the duty to negotiate in
good faith. Moreover, drawing all reasonable inferences in L–
7's favor, the non-conclusory allegations in L–7's Complaint,
combined with the exhibits attached thereto, render each one
plausible. 12
First, L–7 plausibly alleged that Old Navy—who in June
of 2008 proposed postponing negotiations—was engaged
in dilatory tactics from April 2008 until December 15,
2008, during which time it failed to provide any substantive
comments on L–7's draft license agreement. The emails
exchanged between Vayness (L–7) and Fahlbusch (Old Navy)
from April 2008 until September 10, 2008—when Fahlbusch
finally “recommend[ed]” that Vayness and Oldham work
“directly with [Howe] in terms of the branded line,” Ex.
21—support *432 the plausible inference that Fahlbusch
was repeatedly putting L–7 off for undisclosed or pretextual
reasons (discussed further below). The mere exchange of
telephone calls and emails—most of which were initiated by
L–7 (according to L–7's exhibits) and some of which Old
Navy did not respond to (according to L–7's uncontradicted
allegations)—does not make the inference that “Old Navy
negotiated for some ten months,” 2010 WL 157494, at *8,
so obvious that L–7's opposing inference of dilatory tactics is
rendered implausible. 13
Similarly, whether or not L–7 agreed to Old Navy's alleged
request to postpone discussions in June of 2008—a question
of fact left open by the pleadings 14 —that would not defeat
L–7's allegations that Old Navy was engaged in dilatory
tactics. “[A]ssuming the pleaded facts to be true and read[ing
those facts] in [L–7's] favor,” Sepúlveda–Villarini v. Dep't
of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir.2010)
(Souter, J.), it suggests the converse—that L–7, eager to
execute the licensing agreement on terms as favorable to it as
possible, and trusting that its negotiating partner in good faith
believed a postponement of discussions would be mutually
advantageous, was negotiating in good faith. It is reasonable
to infer that, once L–7 became suspicious of what it believed
to be dilatory tactics on Old Navy's part, it took a firmer
stance, clarifying that while Old Navy may have “thought that
[Oldham] agreed to postpone the finalizing of an agreement,”
the “idea of postponing immediate discussions” was merely
“discussed,” and that the parties should work to ensure that
the Agreement did not “become breached,” Ex. 22.
[13] Second, L–7 plausibly alleged that, commencing in
May 2008, Old Navy made repeated material representations
that L–7 subsequently learned were false, such as Fahlbusch's
(Old Navy's) assurances to Oldham that she was already
working with Old Navy's legal team on the licensing
agreement template, or her multiple promises to get back
to L–7, which either never happened or only occurred after
substantial delay. 15 L–7's Complaint also suggests that,
instead of revealing “its true purpose, which was to avoid
entering *433 into the license agreement as required under
the [Agreement],” Compl. ¶ 121 (emphasis added), Old
Navy advanced pretextual reasons for its decision to delay
negotiations (economic conditions) and, ultimately, to cut
off negotiations (L–7's insistence on minimum guaranteed
royalties). See Teachers Ins. & Annuity Assoc. of Am. v. Butler,
626 F.Supp. 1229, 1233–34 (S.D.N.Y.1986) (upholding a
finding of bad faith, after a six-day non-jury trial, where
evidence suggested that defendant “deliberately intended” not
to close on an agreement that was no longer “economically
favorable” to it due to a decline in interest rates, “seiz[ing]
on” other terms of the agreement “as a pretext for not going
forward with” it at the eleventh hour). That Old Navy's “true
purpose” was to avoid negotiating at all can be inferred
from the fact that Old Navy informed L–7 (1) that it wished
to postpone the signing of a license indefinitely, (2) that
it could not make a commitment to any discussions, and,
ultimately, (3) that it “could not follow through with the
promised license,” Compl. ¶ 55.
Moreover, L–7's Complaint and the exhibits attached thereto
support the inference that Old Navy's purported reasons
for withdrawing from negotiations—i.e., that minimum
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guaranteed royalties were “inconsistent with [Old Navy's]
business plans and practices,” Ex. 28—were pretextual. As
of December 3, 2008, minimum guaranteed royalties were
not one of the four “essential issues” on which “differences
[had] emerged in the parties' positions” according to Old
Navy, Ex. 26 (describing “the timing of [the] launch” as the
“most important [ ]” issue); and assuming the truth of L–7's
uncontradicted documentary evidence, none of the points that
had “yet to be resolved” after the January 29th conference call
—including minimum guaranteed royalties—“was left off as
a deal breaker” to L–7, Ex. 28.
[14] Third, L–7 plausibly alleged that Old Navy's January
Proposal was designed to be “economically unfair” to L–7 so
that L–7 would reject it, pointing to Old Navy's “reneging”
on its offer when L–7 ultimately signaled—after several
counteroffers—that it would accept the bulk of the January
Proposal. See L–7 12(c) Opp. at 23. While the District Court
concluded as a matter of law that L–7 did not “accept”
Old Navy's January Proposal, we are inclined to see a fact
question as to whether L–7 plausibly alleged that Old Navy's
January Proposal was designed to elicit L–7's rejection. See
Venture Assocs., 96 F.3d at 280 (business owner would be
acting in bad faith if its purpose in demanding more than
prospective buyer would pay “was to induce [prospective
buyer] to back out of the deal”). Whether or not L–7 “rejected
key terms of Old Navy's” January Proposal or “made a
series of counter-demands” before attempting to resurrect it,
2010 WL 157494, at * 9, 16 the well-pled fact remains that,
when L–7 finally acquiesced to Old Navy's insistence on no
minimum guaranteed royalties and appeared willing to accept
an offer substantially on Old Navy's terms, Old Navy balked.
In light of the (1) documentary evidence that Old Navy's first
proposal for the Branded Line did not come until January of
2009, after the intervention of outside counsel; (2) allegations
that Old Navy's sluggish negotiations from December 15,
2008 to February 6, 2009 were a “sham,” Compl. ¶ 124; (3)
documentary evidence that L–7 was slowly retreating *434
from and ultimately abandoned its insistence on minimum
guaranteed royalties, a supposed sticking point for Old Navy;
and (4) allegations that, under new management and in a
deteriorating retail environment, Old Navy had decided it did
not want to close any deal with Oldham, the Complaint raised
the plausible inference that Old Navy's January Proposal was
designed to elicit L–7's rejection. For all of these reasons, L–
7 stated a claim for breach of contract for failure to negotiate
in good faith. 17
D. Count I: Wrongful Termination
[15] L–7 stated a claim for declaratory judgment for all three
prongs of Count I. First, L–7 stated a claim for declaratory
judgment that Old Navy failed to comply with the notice and
cure provisions of the Agreement. Before either party could
terminate the Agreement, section 5 required (1) notice of a
material breach, (2) 30 days' opportunity to cure, (3) failure
to cure the material breach, and (4) notice of termination. See
Agreement § 5. But Old Navy's Termination Letter provided
only notice of termination—effective immediately—without
providing L–7 with notice of its alleged breaches and 30 days'
opportunity to cure. Old Navy conceded as much in its motion
for judgment on the pleadings. See Old Navy's Memorandum
of Law in Support of Motion for Judgment on the Pleadings
at 23. Therefore, this claim should have survived.
Second, for the same reasons, L–7's claim for declaratory
judgment that the Termination letter did not effect a
termination of the Agreement should have survived.
Third, L–7 stated a claim for declaratory judgment that
Old Navy wrongfully terminated the Agreement. Old Navy
notified L–7 that it had “materially breached the [Agreement]
by [ (1) ] filing a lawsuit against Old Navy” and (2) by
failing to satisfy certain unspecified performance obligations.
Ex. 29. “[B]ringing suit to determine the meaning of an
agreement is not a breach of that agreement absent some
explicit contractual provision that the party will not bring
suit.” Prudential Equity Grp., LLC v. Ajamie, 538 F.Supp.2d
605, 611–12 (S.D.N.Y.2008). Moreover, as L–7 explained
to the District Court, “none of the vague, unspecified issues
mentioned in the Termination Letter had been previously
raised with L–7.... To the contrary, Mr. Oldham had been
repeatedly and widely praised by Gap and Old Navy
executives and staff throughout his Old Navy tenure.” L–
7 App. Brief at 50 (citing multiple allegations in, and
documentary evidence supporting, the Complaint). Old Navy
made no argument, and pointed to no evidence, contradicting
these well-pled facts. Therefore, accepting L–7's allegations
as true and drawing every inference in its favor, L–7 plausibly
alleged that it was in compliance with the Agreement, which
was therefore wrongfully terminated.
The District Court dismissed Count I upon its determination
that Old Navy had no duty to provide L–7 with an opportunity
to cure because such cure would have been futile. (Of
course, if the alleged grounds for L–7's termination did not
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constitute breach or material breach, then it is irrelevant
whether L–7 could have *435 “cured.”) Thus, the District
Court concluded that Oldham was unlikely to have been able
to “perform [his] duties after he sued Old Navy” and unlikely
to have withdrawn his complaint if Old Navy had sent a notice
of breach. But this appears to be speculative. That conclusion,
and the conclusion that withdrawal of the complaint could not
have “undone the harm caused by the public filing of a lawsuit
against Old Navy,” 2010 WL 157494, at *10 (emphasis
added), rests on the public nature of the litigation. However,
it is undisputed that both of L–7's complaints were filed under
seal. For all of these reasons, Count I survives Old Navy's
12(c) motion as a matter of law.
II. Motion to Amend the Judgment and Replead
[16] [17] We generally review motions for reconsideration
under an “abuse of discretion” standard. See Devlin v. Transp.
Commc'n Int'l Union, 175 F.3d 121, 131–32 (2d Cir.1999).
However, a denial of leave to amend that is based on a
legal interpretation, such as for futility, is reviewed de novo.
See Gorman v. Consol. Edison Corp., 488 F.3d 586, 592
(2d Cir.2007); Littlejohn v. Artuz, 271 F.3d 360, 362 (2d
Cir.2001).
The District Court erred in denying L–7's motion for leave
to replead its bad faith negotiation claim based on futility. 18
However, in light of our finding that Count III stated a claim
for relief, this error was harmless because that Count of L–7's
April 17, 2009 Complaint is reinstated.
CONCLUSION
For the foregoing reasons, we affirm in part and vacate in
part the District Court's judgment, and we remand for further
proceedings; in so doing we reverse in part the order of
the District Court that dismissed the Complaint and reinstate
Count I and Count III (on the three bases discussed in this
Opinion).
All Citations
647 F.3d 419
Footnotes
* The Honorable Shira A. Scheindlin, of the United States District Court for the Southern District of New York,
sitting by designation.
1 We set forth the pleadings in great detail to demonstrate the unusual amount of material the District Court
had before it on this 12(c) motion.
2 All exhibits cited herein are exhibits to the Complaint unless otherwise noted.
3 For example, Oldham entered into a licensing agreement with Mattel, Inc. for a special collector's edition of
a Barbie doll.
4 By its terms, the Agreement is governed by New York law.
5 The Complaint alleges that Howe, Old Navy's then-executive vice president, expressed this to L–7. See
Compl. ¶ 52. An October 7, 2008 email from Vayness (L–7) to Wyatt, however, indicates that Wyatt made
the statement. See Ex. 23.
6 L–7's Complaint and exhibits attached thereto largely omit reference to the parties' January 2009 discussions.
The “facts” set forth below are primarily drawn from the five email exhibits to Old Navy's Counterclaims.
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7 Citing this email, L–7 alleges in the Complaint that “[o]n February 2, 2009, L–7 ... accepted Old Navy's
January 8, 2009 proposal in its entirety.” Compl. ¶ 61. As the text of the email makes clear, however, this
was not quite so.
8 We affirm this portion of the District Court's dismissal of Count III.
9 The District Court then concluded that, because Count IV (breach of the implied duty of good faith and fair
dealing) was “essentially identical” to Count III “as both are based on the allegation that Old Navy failed to
negotiate a license agreement in good faith,” Count IV failed to state a claim “[f] or the [same] reasons.” 2010
WL 157494, at *9.
10 We note that, as plaintiffs carefully heed the admonition to support “legal conclusions” with factual allegations
—lest they be deemed “conclusory” and therefore denied a presumption of truthfulness, Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)—trial judges, and appellate judges who review
their determinations, are constantly faced with the task of evaluating competing inferences to be drawn from
those facts. In this sense, Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 586, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007), have rendered even more important (and more difficult) both trial judges' adherence to
the most fundamental pleading principles—namely, accepting as true all factual allegations and drawing all
reasonable inferences from those facts in plaintiffs' favor—and appellate judges' subsequent de novo review
of the decisions of the district courts.
11 See also L–7 12(c) Opp. at 23 (Old Navy “fail[ed] to engage [L–7] in negotiations on the license with [L–7]
for more than one year.”).
12 Citing Adjustrite, 145 F.3d at 548, Defendant argues that the District Court could find, as a matter of law
based on Old Navy's proposal of terms “consistent with” Section 5 of the SOW, that it negotiated in good
faith. However, the only term specified in the September 2007 agreement with which Old Navy's proposal
could have “conform [ed]” was the five percent royalty fee. That the January Proposal included this royalty
provision does not establish as a legal matter that it acted in good faith, especially in light of L–7's well-pled
allegations that the January negotiations were designed to induce L–7's rejection.
13 Nor is the inference that “progress in the negotiations was made,” 2010 WL 157494, at *8, so obvious from
L–7's June 12th email that “things are proceeding in the right direction with the branded line” that L–7's
reasonable, opposing inference must be discredited. Drawing all reasonable inferences in L–7's favor, and
taking into account its allegations that Old Navy was stalling, the June 12th email suggests that L–7, frustrated
with Old Navy's non-responsiveness, was politely encouraging Old Navy to entertain L–7's proposals, while
communicating its view that the parties still had a long way to go.
14 In the “Facts” section of its opinion, the District Court stated that “Old Navy wanted to postpone the launch
[of the Branded Line] and L–7 was prepared to do so, from October 1, 2008, to February 1, 2009.” 2010 WL
157494, at *2. However, in making this factual determination, it cited a draft email from Vayness (L–7) to
Howe (Old Navy) on Oldham's behalf. See Ex. 22 (entitled “2nd draft email to [Howe]”). The email Vayness
(L–7) actually sent states only his “underst[anding]” that Howe “thought that [Oldham] had agreed to postpone
the finalizing of an agreement.” Id. (emphasis added). The draft email written by Oldham's representative
about a June meeting for which he (the representative) was not present and where “the idea of postponing
the discussion ... was discussed” does not establish, at the motion for judgment on the pleadings stage, that
“L–7 was prepared” to postpone the launch of the Branded Line by four months, 2010 WL 157494, at *2.
15 A reasonable inference to draw from Old Navy's lack of communication and failure to supply counter-
proposals or comments—on a draft license agreement that Old Navy's legal team was supposedly “already
working” on as early as May 2008—is that Fahlbusch's (Old Navy's) representation was false.
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16 The District Court concluded that L–7's requests for minimum guaranteed royalties constituted “extraordinarily
high demands” to which Old Navy's resistance was “not surprising,” 2010 WL 157494, at *8. But L–7 argues,
and we are inclined to agree, that this factual determination was made without the benefit of discovery or
expert testimony.
17 Because L–7's claim for breach of the implied covenant of good faith and fair dealing (Count IV) is based on
the same facts as its claim for breach of contract, it should have been dismissed as redundant. See Harris
v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir.2002); Fasolino Foods Co. v. Banca Nazionale
del Lavoro, 961 F.2d 1052, 1056 (2d Cir.1992) (“[B]reach of [the duty of good faith and fair dealing] is merely
a breach of the underlying contract.”).
18 We affirm the District Court's denial of L–7's motion for leave to replead trade disparagement and fraud.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2025 WL 3019150
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Rosemarie J. LIA-BASILE, Plaintiff,
v.
The COUNTY OF ALBANY; Jeffrey J.P. Neal,
Director of Finance; Jennifer Clement, Former
Human Resources Commissioner and Present Health
Consortium; and Tania Spadaro, Foreclosure Clerk
(SR.) a/k/a Foreclosure Manager, Defendants.
1:25-CV-0291 (GTS/MJK)
|
Signed October 29, 2025
Attorneys and Law Firms
ROSEMARIE J. LIA-BASILE, Plaintiff, Pro Se, 5882 Veeder
Road, Slingerlands, NY 12159.
MICHAEL D. BILLOK, ESQ., BOND, SCHOENECK &
KING, PLLC, Counsel for Defendants, 268 Broadway, Suite
104, Saratoga Springs, NY 12866.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this employment
discrimination and retaliation action filed pro se by
Rosemarie J. Lia-Basile (“Plaintiff”) against the County
of Albany, Jeffrey J.P. Neal, Jennifer Clement, and Tania
Spadaro (collectively “Defendants”), is Defendants’ motion
to dismiss Plaintiff's Complaint for insufficient service of
process pursuant to Fed. R. Civ. P. 12(b)(5), and for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No.
11.) For the reasons set forth below, Defendants’ motion is
granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
Generally, in her Complaint, Plaintiff alleges that Defendants
have violated her rights in numerous ways, which the Court
has liberally construed as asserting the following claims: (1)
a claim of discrimination based on physical disabilities in
violation of the Americans with Disabilities Act (“ADA”); (2)
a claim of discrimination based on age in violation of the Age
Discrimination in Employment Act (“ADEA”); (3) a claim of
discrimination based on sex or gender in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”); (4) claims of
retaliation in violation of the ADA, ADEA, and Title VII; (5)
claims of hostile work environment in violation of the ADA,
ADEA, and Title VII; and (6) a claim of defamation under
New York State law. 1 (See generally Dkt. No. 1.)
B. The Parties’ Briefing on Defendants’ Motion
1. Defendants’ Memorandum of Law
Generally, in their motion to dismiss, Defendants make six
arguments. (Dkt. No. 11, Attach. 5.) First, Defendants argue
that Plaintiff's claims based on her age and disability are time-
barred because she filed this action more than 90 days after
receiving the right-to-sue letter from the EEOC, and there is
no basis for equitable tolling. (Id. at 10-12.)
Second, Defendants argue that Plaintiff has not exhausted
her administrative remedies related to her Title VII claims
because those claims were not raised in her EEOC charge, and
that, in the alternative, any such claim was not filed within 90
days of receiving the right-to-sue notice. (Id. at 12-13.)
Third, Defendants argue that Plaintiff has failed to allege facts
sufficient to plausibly state a claim of defamation because her
Complaint does not include any factual allegations regarding
what the allegedly defamatory words or statements were or to
whom such statements were communicated. (Id. at 13-14.)
Fourth, Defendants argue that Plaintiff's Complaint does not
comply with Fed. R. Civ. P. 8 because it is not a “short
and plain statement” that notifies Defendants of the claims
against them and the factual basis for such claims (given that it
consists of 641 handwritten pages and various documents that
do not plausibly suggest what Plaintiff is alleging with regard
to how Defendants allegedly harmed her). (Id. at 14-15.)
*2 Fifth, Defendants argue that Plaintiff's claims pursuant to
Title VII, the ADA, and the ADEA must be dismissed against
the individual Defendants because individuals are not subject
to liability under those statutes. (Id. at 15-16.)
Sixth, Defendants argue that there is no personal jurisdiction
over them because, although they received summons from
Plaintiff, they were never served with the Complaint. (Id. at
17.)
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2. Plaintiff's Opposition Memorandum of Law
Generally, in her opposition memorandum of law, Plaintiff
makes six arguments. (Dkt. No. 18.) First, Plaintiff argues
that she “mistakenly” failed to attach the Complaint to the
summons when she served Defendants because she believed
that it would be available electronically to Defendants’
counsel. (Id. at 1.)
Second, Plaintiff argues that her Complaint is not 641 pages as
Defendants suggest, but rather is primarily comprised of the
forms she believed she was required to complete and submit
as well as “proof and evidence” related to her claims. (Id. at
2-3.)
Third, Plaintiff argues that she attempted to address the issues
underlying her claims with her employer, but those issues
were not resolved, and that she followed the required process
of filing a timely report with the EEOC and waiting for a right-
to-sue letter before bringing this action. (Id. at 2.)
Fourth, Plaintiff argues that the individual Defendants named
in this action acted outside the scope of their employment
related to the actions taken against her and have been named
here because of the role they played in the circumstances
underlying her claims. (Id. at 3.)
Fifth, Plaintiff argues that her disabilities are not “alleged,”
but rather medically documented. (Id. at 4.)
Sixth, Plaintiff argues that her case should not be taken less
seriously or dismissed merely because she has filed it pro se,
especially given that she has provided ample allegations and
evidence to support her claims. (Id. at 4.)
3. Defendants’ Reply Memorandum of Law
Generally, in their reply memorandum of law, Defendants
make five arguments. (Dkt. No. 19.) First, and overarchingly,
Defendants argue that Plaintiff has not opposed any of the
grounds raised in their motion to dismiss other than to explain
why she failed to serve a copy of the Complaint with the
summons. (Id. at 4.)
Second, Defendants argue that Plaintiff's claims pursuant to
Title VII, the ADA, and the ADEA are all time-barred because
the Complaint was filed more than 90 days after she received
her right-to-sue letter from the EEOC. (Id. at 5.)
Third, Defendants argue that Plaintiff's Title VII claims are
not properly before the Court because she did not raise any
complaints about sex discrimination in her EEOC charge. (Id.
at 5.)
Fourth, Defendants argue that Plaintiff has not pled sufficient
facts to plausibly suggest a claim of defamation. (Id. at 6.)
Fifth, Defendants argue that Plaintiff's claims pursuant to Title
VII, the ADA, and the ADEA must be dismissed against the
individual Defendants because individuals are not subject to
liability under those statutes. (Id. at 6-7.)
4. Plaintiff's Sur-Reply Memorandum of Law
Generally, in her sur-reply (which was filed with leave of the
Court), Plaintiff makes five arguments. (Dkt. No. 24.) First,
Plaintiff argues that her claims were timely filed because,
although the right-to-sue letter is dated December 2, 2024, she
did not receive it in the mail until “a few days later.” (Id. at 3.)
*3 Second, Plaintiff argues that she did raise various claims
related to sex discrimination in her EEOC charge, but the
EEOC decided to focus on the age and disability portions of
her allegations. (Id. at 4.)
Third, Plaintiff argues that the Complaint includes proof to
support her defamation/slander claims, as well as proof that
she has “ ‘witnesses’ which will and are able to provide to
court the ‘defaming [and] slandering’ statements that were
spoken of the Plaintiff of which they were told, about her
(plaintiff).” (Id. at 5-6.) She also argues that the evidence and
information provided in the Complaint is all relevant to her
claims. (Id.)
Fourth, Plaintiff argues that her claims against the individual
Defendants should be permitted to proceed because they are
all individually responsible for the actions they took against
her, but that, if the Court should find itself unable to decide
the claims against those individual Defendants, she should
be permitted to file suit against them in whatever way is
permissible so that they may be held accountable. (Id. at 6-7.)
Fifth, Plaintiff notes that, in the time this motion has been
pending, she corrected her failure to serve Defendants with
the Complaint by doing so on April 7, 2025. (Id. at 7.)
II. GOVERNING LEGAL STANDARDS
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A. Legal Standard Governing Motion to Dismiss for
Insufficient Process
“Before a federal court may exercise personal jurisdiction
over a defendant, the procedural requirement of service of
summons must be satisfied.” Omni Capital Int'l, Ltd. v. Rudolf
Wolff & Co., 484 U.S. 97, 104 (1987). “ ‘When a defendant
raises a Rule 12(b)(5) challenge to the sufficiency of service
of process, the plaintiff bears the burden of proving its
adequacy.’ ” Mhina v. Citizens Bank, N.A., 22-CV-0427, 2022
WL 16572045, at *2 (N.D.N.Y. Nov. 1, 2022) (Sannes, C.J.)
(quoting Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246,
251 [S.D.N.Y. 2003]). “A plaintiff must, ‘through specific
factual allegations and any supporting materials, make a
prima facie showing that service was proper.’ ” Mhina, 2022
WL 16572045, at *2 (quoting Kwon v. Yun, 05-CV-1142,
2006 WL 416375, at *2 [S.D.N.Y. Feb. 21, 2006]).
B. Legal Standard Governing Motion to Dismiss for
Failure to State a Claim
It has long been understood that a dismissal for failure to
state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), can be based on one or both of two
grounds: (1) a challenge to the “sufficiency of the pleading”
under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal
cognizability of the claim. Jackson v. Onondaga Cty., 549 F.
Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.)
(adopting Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
some elaboration regarding that ground is appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
*4 On the one hand, the Supreme Court has long
characterized the “short and plain” pleading standard under
Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson,
549 F. Supp. 2d at 212 n.20 (citing Supreme Court case). On
the other hand, the Supreme Court has held that, by requiring
the above-described “showing,” the pleading standard under
Fed. R. Civ. P. 8(a)(2) requires that the pleading contain
a statement that “give[s] the defendant fair notice of what
the plaintiff's claim is and the grounds upon which it rests.”
Jackson, 549 F. Supp. 2d at 212 n.17 (citing Supreme Court
cases) (emphasis added).
The Supreme Court has explained that such fair notice has
the important purpose of “enabl[ing] the adverse party to
answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212 n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme
Court reversed an appellate decision holding that a complaint
had stated an actionable antitrust claim under 15 U.S.C. §
1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In
doing so, the Court “retire[d]” the famous statement by the
Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than
turn on the conceivability of an actionable claim, the Court
clarified, the “fair notice” standard turns on the plausibility
of an actionable claim. Id. at 555-70. The Court explained
that, while this does not mean that a pleading need “set out
in detail the facts upon which [the claim is based],” it does
mean that the pleading must contain at least “some factual
allegation[s].” Id. at 555. More specifically, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level [to a plausible level],” assuming (of course)
that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [W]here the well-pleaded facts do not
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permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.
Ct. at 1950 (internal quotation marks and citations omitted).
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
*5 Because of this requirement of factual allegations
plausibly suggesting an entitlement to relief, “the tenet that
a court must accept as true all of the allegations contained
in the complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.”
Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that
only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949
(internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Id.
Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 2
III. ANALYSIS
A. Whether the Court Has Personal Jurisdiction Over
Defendants
*6 After careful consideration, the Court answers the above
question in the affirmative as to Defendant County of Albany
and Defendant Neal, but in the negative as to Defendant
Clement and Defendant Spadaro. Although Defendants have
argued (and Plaintiff has admitted) that service was improper
under Fed. R. Civ. P. 4(c) because Plaintiff failed to serve a
copy of the Complaint along with the summons, the Court
notes that Plaintiff has since at least attempted to serve
the Complaint on all Defendants. (Dkt. Nos. 14, 15, 16,
17.) Defendants notably do not appear to argue that this
service of the Complaint was insufficient despite filing their
reply memorandum of law after such service occurred. (Dkt.
No. 19.) However, while the proof of services filed on the
docket show that the Complaint was properly served on
the County of Albany by being personally delivered to a
representative and on Defendant Neal by being left at his
residence with a person of suitable age and discretion, they
also show that the Complaint was mailed by certified mail
to Defendants Clement and Spadaro after initial unsuccessful
attempts at service at their residences. (Id.) However, “service
by certified mail is not an approved method for service of
process under federal law.” Smith v. Smith, 19-CV-1638, 2021
WL 3524160, at *3 (E.D.N.Y. Aug. 11, 2021) (citing Morris
v. N.Y. Gaming Comm'n, 2019 WL 2424716, at *3 [W.D.N.Y.
Mar. 14, 2019]).
Compliance with state law for serving a summons can provide
a basis for personal jurisdiction, but the service here also does
not appear to meet New York's requirements. Firstly, while
New York permits what has colloquially been referred to as
“nail and mail” service where more typical methods of service
cannot be made with due diligence, there is no indication here
that Plaintiff's process server “affix[ed] the [complaint] to the
door of either the actual place of business, dwelling place
or usual abode” of either Defendant Clement or Defendant
Spadaro. N.Y. C.P.L.R. § 308(4). The proof of service as to
those Defendants indicates that, on first attempt, the process
server returned the Complaint unexecuted because of an
inability to reach an individual willing to accept service, and
that, a few days later, she mailed the Complaint by certified
mail to those Defendants; they do not state that a copy of the
Complaint was left at the relevant addresses in addition to also
mailing it as required by N.Y. C.P.L.R. § 308. (Dkt. Nos. 14,
17.)
Secondly, while New York law permits personal service by
mail apart from the “nail and mail” option, Plaintiff has
not complied with the requirements of that provision either.
Section 312-a of the New York Civil Practice Law and
Rules permits service “by mailing to the person or entity
to be served, by first class mail, postage prepaid, a copy
of the summons and complaint ... together with two copies
of a statement of service by mail and acknowledgment of
receipt ... with a return envelope, postage prepaid, addressed
to the sender,” and specifies that service is not considered to
be complete until the date upon which that acknowledgment
of receipt is mailed or delivered to the sender by the defendant
or another authorized individual. N.Y. C.P.L.R. § 312-a(a),
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(b)(1). Although the submitted proof of service indicates the
complaint was mailed, there is nothing to suggest that service
was ever completed through acknowledgement of receipt.
As a result, Plaintiff has not shown that the Complaint was
properly served on Defendants Clement and Spadaro.
For the above reasons, the Court finds that, based on
the information presented, it lacks personal jurisdiction
over the claims asserted against Defendants Clement and
Spadaro at this time, and therefore such claims must be
dismissed without prejudice. It does, however, have personal
jurisdiction over Defendants County of Albany and Neal,
and therefore will consider Defendants’ other arguments
pertaining to Plaintiff's claims.
B. Whether Plaintiff Has Exhausted Her
Administrative Remedies as to the Title VII Claims
After careful consideration, the Court answers the above
question in the negative for the reasons stated in Defendants’
memoranda of law. See supra, Parts I.B.1. and I.B.3. of this
Decision and Order. To those reasons, the Court adds the
following analysis (which is intended to supplement, but not
supplant, the reasons provided by Defendants).
*7 “As a precondition to filing a Title VII claim in
federal court, a plaintiff must pursue available administrative
remedies and file a timely complaint with the EEOC.”
Hardaway v. Hartford Pub. Works Dept., 879 F.3d 486, 499
(2d Cir. 2018) (quoting Deravin v. Keriik, 335 F.3d 195,
200 [2d Cir. 2003]). Although exhaustion is an essential
requirement for a Title VII claim, the Second Circuit
has “repeatedly held that ‘failure to exhaust administrative
remedies is a precondition to bringing a Title VII claim in
federal court, rather than a jurisdictional requirement,’ ” and
thus “is ‘subject to equitable defenses.’ ” Hardaway, 879 F.3d
at 489-90 (quoting Francis v. City of New York, 235 F.3d
763, 768 [2d Cir. 2000]; Fowlkes v. Ironworkers Local 40,
790 F.3d 378, 385 [2d Cir. 2015]). As an affirmative defense,
the burden to show that a plaintiff has failed to exhaust
administrative remedies rests on the defendant. Hardaway,
879 F.3d at 490-91. The Second Circuit has also recognized
that, in situations where an EEOC charge has been filed,
“claims that were not asserted before the EEOC may be
pursued in a subsequent federal court action if they are
reasonably related to those that were filed with the agency.”
Buon v. Spindler, 65 F.4th 64, 77 (2d Cir. 2023) (quoting
Deravin, 335 F.3d at 200).
Plaintiff argues in her sur-reply that she included various
claims and allegations beyond discrimination under the ADA
and ADEA in her EEOC charge, but that the EEOC “decided
to focus on the Age and Disability discriminations” in
their investigation while telling her that her other claims
and charges “would be discussed when the case goes to
court.” (Dkt. No. 1, at 24.) As an initial matter, Defendants
do not ever argue that Plaintiff's EEOC charge was limited
solely to discrimination, merely that it was limited to claims
based on her age and disability (which are not covered by
Title VII). As a result, to the extent that Plaintiff has alleged
retaliation, denial of work or promotions, denial of pay, and
hostile work environment based on her age or disability in the
EEOC charge, Defendants have not challenged the exhaustion
of such claims, nor does the Court find those claims to not be
reflected in (or at the very least related to) the charge. (Dkt.
No. 1, Attach. 1, at 51-52.) What Defendants do argue is that
Plaintiff's EEOC charge does not reflect any claim (whether
it be discrimination, retaliation, hostile work environment,
or any other action) based on her sex or gender that would
implicate Title VII.
The failure to make any allegations of sex or gender
claims is obvious from a consideration of the EEOC charge
itself and the EEOC's response to that charge following its
investigation. Plaintiff specifically states multiple times in
the charge that the adverse actions taken against her were
because of her age and disability, but never once mentions
sex or gender. (Dkt. No. 1, Attach. 1, at 51-52.) Likewise,
the EEOC's decision letter does not provide any indication
that it was on notice of or investigated any allegations
regarding treatment based on sex or gender as opposed to age
and disability. (Dkt. No. 1, Attach. 1, at 5.) In a statement
submitted with her Complaint that appears to have been
provided by her to the EEOC as part of the investigation
process, Plaintiff herself states multiple times that when she
had reported the conduct to her employer, they erroneously
treated those complaints as being related to sexual harassment
or her asserting that she was being treated differently because
she was a woman, but that “those are not what my concerns
were,” and she clarified that the real nature of her complaints
was harassment and unfair treatment based on her age and
disability. (Dkt. No. 1, Attach. 1, at 83-84.) Based on the
evidence provided, there is simply nothing to suggest that
Plaintiff ever even attempted to raise a claim based on her
sex or gender (or any other characteristic protected by Title
VII) when she filed the EEOC charge, and thus she has not
exhausted any claim pursuant to Title VII.
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*8 Nor is there any basis for finding that claims of sex
or gender discrimination (or retaliation or hostile work
environment) are reasonably related to the age and disability
claims that were raised in the EEOC charge. “A claim is
considered reasonably related if the conduct complained
of would fall within the scope of the EEOC investigation
which can be reasonably expected to grow out of the charge
that was made.” Deravin, 335 F.3d at 200-01 (quoting
Fitzgerald v. Henderson, 251 F.3d 345, 359-60 [2d Cir.
2001]). Again, Plaintiff very specifically states that the
actions were taken against her based on her age and disability,
and she specifically denied in subsequent information she
provided to the EEOC that sex or gender discrimination was
one of her concerns. None of what was provided to the EEOC
would alert it to the possibility that Plaintiff intended to allege
any claim based on her sex or gender.
For the above reasons, any claims Plaintiff has purported to
assert based on sex or gender pursuant to Title VII have not
been properly exhausted and thus must be dismissed without
prejudice. See Franklin v. New York City Transit Auth.–
Metropolitan Transp. Auth., 18-CV-6436, 2021 WL 4710762,
at *6 (S.D.N.Y. Oct. 8, 2021) (noting that dismissals of Title
VII claims for failure to exhaust administrative remedies are
without prejudice) (citing Robinson v. Front-Line Sec. Inc.,
68 F. App'x 258, 260 [2d Cir. 2003]); accord Standard Inv.
Chartered, Inc. v. Nat'l Ass'n of Secs Dealers, Inc., 560 F.3d
118, 124 (2d Cir. 2009).
C. Whether Plaintiff's Claims Pursuant to the ADA
and ADEA Have Been Timely Filed
After careful consideration, the Court answers the above
question in the affirmative for the purposes of the allegations
and evidence currently presented on this motion to dismiss.
“As a predicate to filing suit under [Title VII, the ADEA,
and the ADA], a private plaintiff must first file a timely
charge with the EEOC.” Riddle v. Citigroup, 449 Fed. App'x
66, 69 (2d Cir. 2011). “Additionally, ‘under the ADA, Title
VII, and the ADEA, a plaintiff must file an action in federal
court within 90 days of receipt of a right-to-sue letter from
the EEOC.’ ” Corns v. Good Samaritan Hosp. Med. Ctr.,
23-CV-0093, 2024 WL 4008244, at *5 (E.D.N.Y. Aug. 30,
2024) (quoting Henriquez-Ford v. Council of Sch. Sip'rs &
Adm'rs, 14-CV-2496, 2015 WL 3867565, at *5 [S.D.N.Y.
June 23, 2015]); accord Schleuderer v. Town of Woodstock,
25-CV-0155, 2025 WL 2710761, at *2 (N.D.N.Y. Sept.
23, 2025) (Kahn, J.) (quoting Tiberio v. Allergy Asthma
Immunology of Rochester, 664 F.3d 35, 37 [2d Cir. 2011]).
As documented by the submitted evidence, the EEOC issued
a right-to-sue letter on Plaintiff's disability and age-related
claims on December 2, 2024. (Dkt. No. 1, Attach. 1, at
1.) The letter itself states that Plaintiff had 90 days from
the date of receipt of that letter, and notes that receipt
“generally occurs on the date that you (or your representative)
view this document.” (Id.) Further guidance appended to
the letter clarifies that the relevant date is when “you (or
your representative) opened this email or mail.” (Dkt. No. 1,
Attach. 1, at 2.) As a result, the fact that the letter is dated
December 2, 2024, is not dispositive of the date of receipt.
As Defendants highlight in their argument, Plaintiff's
attachments to the Complaint include documentation of an
email sent to Plaintiff on December 2, 2024, that notified
her that there was a new document in her EEOC folder
related to her relevant charge. (Dkt. No. 1, Attach. 1, at
45-47.) However, the fact that Plaintiff was sent this email
on December 2, 2024, is not proof that she viewed or opened
that email on that date, and it is the date of viewing or
opening that appears to control the definition of “receipt”
under the EEOC's policies. Although there is one instance in
the handwritten portion of her Complaint where she alleges
that she received the right-to-sue letter on December 2, 2024,
she states multiple times in other places when directly asked
that she in fact received it on December 9, 2024. (Dkt. No.
1, at 10, 16, 24, 79.) Under the circumstances and affording
special deference to Plaintiff's pro se status, Plaintiff has at
the very least plausibly alleged that she did not receive the
right-to-sue letter (under the meaning discussed above) until
December 9, 2024. Accordingly, her filing of the Complaint
on March 5, 2025, was at least facially timely.
*9 The Court recognizes that this finding, made at such a
preliminary stage based on limited and somewhat conflicting
information, might be subject to change if discovery reveals
evidence that suggests Plaintiff in fact was in receipt of the
right-to-sue notice at an earlier date. For this reason, the Court
denies Defendants’ motion to dismiss as to the remaining
ADA and ADEA claims, but will permit Defendants to renew
their motion on this issue (as one for summary judgment) at
a later date if warranted by the evidence.
D. Whether Plaintiff's Complaint Complies with Fed.
R. Civ. P. 8
After careful consideration, the Court answers the above
question in the affirmative for the following reasons.
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Rule 8 of the Federal Rules of Civil Procedure requires that a
pleading that states a claim for relief must contain “a short and
plain statement of the grounds for the court's jurisdiction,” as
well as “of the claim showing that the pleader is entitled to
relief,” and a “demand for the relief sought.” Fed. R. Civ. P.
8(a). “Dismissal pursuant to [Rule 8] ‘is usually reserved for
those cases in which the complaint is so confused, ambiguous,
vague, or otherwise unintelligible that its true substance, if
any, is well disguised.’ ” Wynder v. McMahon, 360 F.3d 73,
80 (2d Cir. 2004) (quoting Salahuddin v. Cuomo, 861 F.2d 40,
42 [2d Cir. 1988]).
Here, although the relevant “complaint” filing totals 641
pages, many of those pages are considered to be attachments
to the Complaint, while the Complaint itself consists of
multiple standard pro se forms related to Plaintiff's various
claims and a handwritten statement of factual allegations
totaling approximately 45 pages. (Dkt. No. 1, at 1-80.)
Further, although Plaintiff's handwritten pages are certainly
more difficult to read than printed material, they are not “all
but illegible” as Defendants argue; indeed, the Court was able
to decipher the entirety of that handwritten statement with
only a few limited exceptions. While that statement is not
particularly well organized or simple to read, it does not rise
to the level of being so ambiguous, vague or unintelligible
that it provides no indication of what Plaintiff is alleging.
Moreover, Plaintiff's use of the standard forms provides
specific information about what claims she is intending to
assert, and she includes a separate handwritten page wherein
she lists her intended causes of action in a succinct manner.
(Dkt. No. 1, at 31.) Taken together, her completed forms
and written statement provide adequate notice of the claims
she has asserted and the factual allegations supporting such
claims. Although lengthy, Plaintiff's Complaint does not rise
to the level of violating Fed. R. Civ. P. 8.
For the above reasons, Defendant's motion on this issue is
denied.
E. Whether Plaintiff's Claims Pursuant to the
ADA and ADEA Should Be Dismissed Against the
Individual Defendants
After careful consideration, the Court answers the above
question in the affirmative for the reasons stated in
Defendants’ memoranda of law. See supra, Parts I.B.1. and
I.B.3. of this Decision and Order. To those reasons, the Court
adds the following analysis (which is intended to supplement,
rather than supplant, the reasons provided by Defendants).
As Defendants argue, “individuals are not subject to liability
under the ADEA and the ADA.” Brown v. UPS United
Parcel Serv., Inc., 22-CV-0762, 2023 WL 3322702, at
*8 n.5 (N.D.N.Y. Mar. 28, 2023) (Dancks, M.J.), report-
recommendation adopted 2023 WL 3032195 (N.D.N.Y. Apr.
21, 2023) (Sannes, C.J.) (citing Scalercio-Isenberg v. Morgan
Stanley Servs. Grp. Inc., 19-CV-6034, 2019 WL 6916099,
at *7 [S.D.N.Y. Dec. 19, 2019]); accord Karupaiyan v.
CVS Health Corp., 19-CV-8814, 2021 WL 4341132, at *8
(S.D.N.Y. Sept. 23, 2021) (citing Tomka v. Seiler Corp., 66
F.3d 1295, 1317 [2d Cir. 1995], abrogated on other grounds
by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 [1998]).
As a result, these claims must be dismissed as a matter of law
against Defendants Neal, Clement, and Spadaro.
*10 The Court acknowledges Plaintiff's argument that these
individuals were involved in the conduct she alleges occurred.
However, because neither the ADA nor the ADEA subject
individuals to liability, claims cannot be, as a legal matter,
brought against these Defendants pursuant to those statutes.
This does not prevent Plaintiff from pursuing recovery under
these statutes for the actions taken by these individuals
through her claims against Defendant County of Albany, to
the extent it could be held legally responsible for the conduct
of those individuals. The Court denies Plaintiff's request to
dismiss these claims without prejudice because there is no
legal basis upon which she could assert such claims under the
ADA or ADEA in this or any other action. Simply put, the law
does not provide a cause of action against individuals under
these statutes.
For the above reasons, Plaintiff's claims pursuant to the ADA
and ADEA against Defendants Neal, Clement, and Spadaro
are dismissed with prejudice.
F. Whether Plaintiff Has Stated a Claim of
Defamation
After careful consideration, the Court answers the above
question in the negative for the reasons stated in Defendants’
memoranda of law. See supra, Parts I.B.1. and I.B.3. of this
Decision and Order. To those reasons, the Court adds the
following analysis (which is intended to supplement, rather
than supplant, the reasons provided by Defendants).
“Under New York law, to state a claim for defamation, a
plaintiff must allege ‘(1) a written [or spoken] defamatory
statement of and concerning the plaintiff, (2) publication to a
third party, (3) fault, (4) falsity of the defamatory statement,
and (5) special damages or per se actionability.’ ” Miller
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v. James, 751 F. Supp. 3d 21, 35 (N.D.N.Y. 2024) (Kahn,
J.) (quoting Kesner v. Dow Jones & Co., Inc., 515 F. Supp.
3d 149, 169-70 [S.D.N.Y. 2021]). “ ‘In assessing whether a
defamation claim has been [pled] with sufficient particularity,
courts look to whether said complaint references the alleged
defamatory statement, identifies who made the statement,
when it was made, the context in which it was made, whether
it was made orally or in writing and whether it was made
to a third party.’ ” Lewis v. R. L. Vallee, Inc., 24-CV-0069,
2024 WL 2112384, at *3 (N.D.N.Y. Feb. 20, 2024) (Stewart,
M.J.), report-recommendation adopted by 2024 WL 1739608
(N.D.N.Y. Apr. 23, 2024) (Nardacci, J.), aff'd Lewis v. R.L.
Vallee, Inc., 24-1438, 2025 WL 1077412 (2d Cir. Apr. 10,
2025).
Plaintiff's allegations related to her defamation claim are
sparse and they appear to suggest that this claim is
asserted against only Defendant Spadaro, over whom, as was
discussed above, the Court does not currently have personal
jurisdiction. Notwithstanding the personal jurisdiction issue
(and because that deficiency could be corrected by proper
service), the Court finds also that the allegations do
not meet the basic requirements to plead a claim of
defamation. Plaintiff mentions the circumstances underlying
her defamation claim three times in her lengthy Complaint:
(1) she alleges that “Tania also committed ‘slander’ as I
learned after I was moved upstairs to the foreclosure unit
from the Tax Collection ... learned from a coworker how
Tania Spadaro had been terrible and said terrible mean things
about me to others” (Dkt. No. 1, at 21); (2) she alleges that,
in or around October 2019, “I soon also learned that Tania
Spadaro mainly was slandering myself as well as my family
making untrue statements about my family and myself” (Dkt.
No. 1, at 54); and (3) regarding her defamation/slander
claim, she alleges that an unidentified individual was “telling
my coworkers terrible and mean and untrue things about
myself and my family” (Dkt. No. 1, at 22). These allegations
do not provide any specificity regarding what the relevant
statements were, and suggestions that they were “mean” or
“terrible” or slanderous are simply insufficient to meet the
pleading requirement for specificity regarding the allegedly
defamatory statements. As a result, Plaintiff has not alleged
facts sufficient to state a defamation claim.
*11 Moreover, although not raised by Defendants, there
appears to be a significant suggestion, based on Plaintiff's
allegations, that any defamation claim she has attempted to
assert is not timely. Under New York law, the statute of
limitations for a claim of defamation is one year. Button
v. Breshears, 24-CV-3757, 2025 WL 2771663, at *6-7
(S.D.N.Y. Sept. 26, 2025) (citing N.Y. C.P.L.R. § 215[3]).
Plaintiff filed her Complaint on March 3, 2025. (Dkt. No.
1.) Yet the statements allegedly made by Defendant Spadaro
that constitute the basis for her defamation claim appear,
according to Plaintiff's allegations, to have both been made
and brought to her attention in approximately October of
2019. (Dkt. No. 1, at 21, 54.) It therefore appears that this
claim would be time-barred even if Plaintiff could provide
more detailed allegations regarding the alleged statements.
For these reasons, the Court finds that Plaintiff's defamation
claim must be dismissed. However, affording Plaintiff special
solicitude because of her pro se status, the Court will permit
her to file a motion for leave to amend the Complaint as to her
defamation claim (assuming she first remedies the deficits in
service of the Complaint on Defendant Spadaro) should she
have additional allegations that would (a) remedy the lack of
specificity identified above, and (b) plausibly suggest that any
defamatory statements were made within one year prior to her
filing of the Complaint.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 11)
is GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff's claims against Defendant Clement
and Defendant Spadaro are DISMISSED without prejudice
due to a lack of personal jurisdiction as a result of insufficient
service of process; and it is further
ORDERED that the following claims are DISMISSED:
(a) Plaintiffs’ Title VII claims against all Defendants
(without prejudice);
(b) Plaintiff's ADA and ADEA claims against Defendant
Neal, Clement, and Spadaro (with prejudice); and
(c) Plaintiff's defamation claim (without prejudice to
refiling upon a successful motion to amend); and it is
further
ORDERED that Plaintiff's ADA and ADEA claims against
Defendant County of Albany SURVIVE.
All Citations
Slip Copy, 2025 WL 3019150
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Footnotes
1 The Court notes that Plaintiff's “claims” related to acts such as denial of employment or promotions, denial
of performance reviews, denial of training, and denial of ability to utilize her knowledge, education, skills and
capabilities are all encompassed by the above-stated claims.
2 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1,
2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary
judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1]
documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering
a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the complaint.... Where a
document is not incorporated by reference, the court may nevertheless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... However, even
if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues of
fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”)
(internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir.1995) (per curiam) (“ ‘[W]hen a plaintiff chooses not to attach to the complaint or incorporate
by reference a [document] upon which it solely relies and which is integral to the complaint,’ the court may
nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without
converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Malave-Sykes v. Children's Home of Wyoming Conference, Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 292071
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Joshua MALAVE-SYKES, Plaintiff,
v.
CHILDREN'S HOME OF WYOMING
CONFERENCE and George T. Dermody, Defendants.
3:25-cv-01547 (AMN/DJS)
|
Signed February 4, 2026
Attorneys and Law Firms
JOSHUA MALAVE-SYKES, 15 Delaware Avenue – Apt.
245, Endicott, New York 13760, Plaintiff pro se.
ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On November 3, 2025, Plaintiff pro se Joshua Malave-
Sykes commenced this action against his former employer,
Children's Home of Wyoming Conference (“Children's
Home”), and the Chief Executive Officer (“CEO”) of
Children's Home, George T. Dermody, alleging that
Defendants unlawfully discriminated against him based on
his race and disability in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), and that Defendants denied
him overtime pay and retaliated against him in violation of
the Fair Labor Standards Act (“FLSA”). See Dkt. No. 1
(“Complaint”).
This matter was referred to United States Magistrate Judge
Daniel J. Stewart, who reviewed the Complaint pursuant
to 28 U.S.C. § 1915(e), and on December 23, 2025,
recommended that the Complaint be dismissed with leave
to amend, with the exception of Plaintiff's Title VII claim
against Defendant Dermody, which Magistrate Judge Stewart
recommended be dismissed with prejudice because it cannot
be cured by a better pleading. See Dkt. No. 6 at 6-7. 1
Magistrate Judge Stewart advised that, pursuant to 28
U.S.C. § 636(b)(1), Plaintiff had fourteen days within which
to file written objections and that failure to object to
the Report-Recommendation within fourteen days would
preclude appellate review. Id. at 7-8. On January 6, 2026,
Plaintiff filed objections to the Report-Recommendation, see
Dkt. No. 8, and an Amended Complaint. Dkt. No. 9.
The Court reviews the sufficiency of the allegations in
Plaintiff's Amended Complaint pursuant to 28 U.S.C. §
1915. 2 Following that review, and for the reasons discussed
below, Plaintiff's Amended Complaint is dismissed without
prejudice and with leave to amend as to Plaintiff's NYSHRL
and FLSA claims against all Defendants, and Plaintiff's Title
VII and ADA claims against Children's Home.
II. STANDARD OF REVIEW
This Court reviews de novo those portions of a magistrate
judge's report-recommendation that have been properly
preserved with a specific objection. Petersen v. Astrue, 2
F. Supp. 3d 223, 228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)
(1)(C). If no specific objections have been filed, this Court
reviews a magistrate judge's report-recommendation for clear
error. See Petersen, 2 F. Supp. 3d at 229 (citing Fed. R. Civ.
P. 72(b), Advisory Committee Notes: 1983 Addition). “When
performing such a ‘clear error’ review, ‘the court need only
satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.’ ” Dezarea W.
v. Comm'r of Soc. Sec., No. 21-cv-1138, 2023 WL 2552452,
at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm'r
of Soc. Sec., No. 17-cv-367, 2017 WL 5484663, at *1 n.1
(N.D.N.Y. Nov. 14, 2017)).
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haines
v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). “A complaint filed pro se “must be construed
liberally with ‘special solicitude’ and interpreted to raise the
strongest claims that it suggests.” Hogan v. Fischer, 738
F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657
F.3d 116, 122 (2d Cir. 2011)). The Second Circuit has held
that courts are obligated to “make reasonable allowances to
protect pro se litigants” from inadvertently forfeiting legal
rights merely because they lack a legal education. Govan,
289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)). “This is particularly so when the pro
se plaintiff alleges that her civil rights have been violated.”
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d
Cir. 2008) (citation omitted). After appropriate review, “the
court may accept, reject, or modify, in whole or in part, the
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findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION
*2 On January 6, 2026, Plaintiff filed an Amended
Complaint reciting a wide array of federal and state law.
See generally Dkt. No. 9. Plaintiff's Amended Complaint
makes additional allegations in support of his Title VII and
FLSA claims. The Amended Complaint also adds Weldon
Sickler, Plaintiff's immediate supervisor, as a defendant, and
appears to raise additional claims under the Americans with
Disabilities Act of 1990 (“ADA”), the New York State Human
Rights Law (“NYSHRL”), the First Amendment, and Article
6(A) of the New York State Public Service Law (the “Personal
Privacy Protection Law” or “PPPL”). See generally id.
After de novo review, the Court considers the sufficiency of
the allegations in the Amended Complaint pursuant to 28
U.S.C. § 1915 and finds that the Amended Complaint suffers
from various deficiencies, which the Court briefly outlines
below.
First, to the extent that Plaintiff seeks to bring his Title VII
and ADA claims against Defendants Dermody and Sickler,
such claims must be dismissed with prejudice because Title
VII and the ADA do not provide for individual liability. See
Cayemittes v. City of New York Dep't of Hous. Pres. & Dev.,
641 F. App'x 60, 61-62 (2d Cir. 2016) (affirming dismissal
of Title VII claims against individual defendants “because
Title VII does not provide for individual liability” (collecting
cases)); Perros v. Cnty. of Nassau, 238 F. Supp. 3d 395,
402 n.3 (E.D.N.Y. 2017) (noting that “it is well-established
that there is no individual liability under the ADA ...
whether the individual is sued in their official or individual
capacity” (collecting cases)).
Second, Plaintiff fails to plead a discrimination claim under
Title VII or the NYSHRL as against Children's Home. To
assert a discrimination claim under Title VII or the NYSHRL,
a plaintiff must allege facts showing that “(1) the employer
took adverse action against him, and (2) his race, color,
religion, sex, or national origin was a motivating factor in
the employment decision,” which can be shown “by alleging
facts that directly show discrimination or facts that indirectly
show discrimination by giving rise to a plausible inference
of discrimination.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 87 (2d Cir. 2015) (citation omitted). “A
plaintiff may demonstrate circumstances giving rise to an
inference of discrimination by alleging that he was treated
less favorably than similarly situated employees[.]” Brown
v. Daikin Am. Inc., 756 F.3d 219, 229 (2d Cir. 2014). “An
employee is similarly situated to co-employees if they were
(1) subject to the same performance evaluation and discipline
standards and (2) engaged in comparable conduct.” Ruiz v.
Cnty. of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010)
(internal quotation marks and citation omitted). Here, Plaintiff
alleges that Defendants provided two white custodians with
promotional opportunities and more favorable scheduling.
See Dkt. No. 9-1 at 2. Specifically, Plaintiff alleges that
other white employees were assigned to Children's Home's
Endicott facility, which is located near Plaintiff's residence.
See Dkt. No. 9-2 at 14. However, Plaintiff does not allege
facts indicating that these employees were similarly situated
to Plaintiff, specifically, whether they were probationary
employees, like Plaintiff, who were employed by Children's
Home for a period of less than six months. See id. at 87. 3
*3 Third, to the extent that Plaintiff raises a hostile
work environment claim under Title VII against Children's
Home, Plaintiff fails to sufficiently plead facts indicating
that Defendants’ conduct “(1) is objectively severe or
pervasive ...; (2) creates an environment that the plaintiff
subjectively perceives as hostile or abusive; and (3) creates
such an environment because of the plaintiff's race.” Hughes
v. Xerox Corp., 37 F. Supp. 3d 629, 646 (W.D.N.Y. 2014)
(quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir.
2007) (per curiam)) (internal quotation marks and alterations
omitted). Here, the only conduct that Plaintiff relies upon
to substantiate this claim is that Defendant Sickler yelled
profanities and threatened to terminate Plaintiff's employment
because he refused to perform work duties outside of his job
description after the conclusion of his work shift. See Dkt. No.
9-2 at 2. But Plaintiff fails to allege any connection between
such conduct and a protected characteristic. See Choudhury v.
Northwell Health, Inc., No. 23-cv-1406, 2025 WL 2300220,
at *8 (E.D.N.Y. Aug. 8, 2025).
Fourth, Plaintiff fails to plead a discrimination claim under
the ADA against Children's Home. To plead a claim of
discrimination under the ADA, Plaintiff must allege that
“(1) his employer is subject to the ADA; (2) he was
disabled within the meaning of the ADA; (3) he was
otherwise qualified to perform the essential functions of
his job, with or without reasonable accommodation; and
(4) he suffered adverse employment action because of his
disability.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169
(2d Cir. 2006)). In his Amended Complaint, Plaintiff alleges
that he has depression and a speech impairment. See Dkt.
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No. 9 at 6. However, Plaintiff's allegations, without more,
are insufficient to establish that Plaintiff is disabled. See
Fitzgerald v. We Co., No. 20-cv-5260, 2022 WL 952963, at *7
(S.D.N.Y. Mar. 30, 2022) (explaining that a plaintiff claiming
to be disabled must “(1) show that [he] suffers from a physical
or mental impairment; (2) identify the activity claimed to be
impaired, and establish that it constitutes a major life activity;
and (3) show that [his] impairment ‘substantially limits’ the
major life activity in question” (quoting Weixel v. Bd. of Educ.
of City of New York, 287 F.3d 138, 147 (2d Cir. 2002))).
Additionally, even if Plaintiff had sufficiently alleged that he
was disabled, Plaintiff fails to allege any facts from which the
Court could plausibly infer that he was terminated because of
his disability.
Fifth, Plaintiff fails to show that Children's Home is subject
to the FLSA. To establish liability under the FLSA, Plaintiff
must show that: (i) Defendant Children's Home is an
employer subject to the FLSA, (ii) Plaintiff is an employee
within the meaning of the FLSA, and (iii) the employment
relationship is not exempted from the FLSA. Sanchez v. Ms.
Wine Shop Inc., 643 F. Supp. 3d 355, 366 (E.D.N.Y. 2022)
(citation omitted). An employer is subject to the FLSA if
“(1) their employees are ‘engaged in commerce,’ or (2) the
employer is an ‘enterprise engaged in commerce.’ ” Id. at
366-67 (quoting 29 U.S.C. §§ 206, 207) (citation omitted).
Here, Plaintiff's allegations are insufficient to establish that
Children's Home is an employer subject to the FLSA. An
employer is an “enterprise engaged in commerce” if it
“has employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced
for commerce by any person” and has an “annual gross
volume of sales made or business done of not less than
$500,000.” Yanchaliquin v. Chuqui Builders Corp., No.
23-cv-504, 2023 WL 7299810, at *3 (N.D.N.Y. Nov. 6,
2023) (quoting 29 U.S.C. § 203(s)(1)(A)(i)-(ii)) (alterations
omitted). Plaintiff fails to allege specific facts demonstrating
that Children's Home meets the $500,000 gross annual sales
or business threshold. Alternatively, Plaintiff also fails to
plead that he was engaged in commerce or in the production
of goods for commerce. See Sanchez, 643 F. Supp. 3d at 367
(defining “commerce” as “trade, commerce, transportation,
transmission, or communication” among several states or
between any state and any place outside of it) (quoting 29
U.S.C. § 203(b)). Plaintiff's Amended Complaint fails to
indicate whether Plaintiff traveled outside of New York as
part of his job, whether he had any contact with out-of-state
customers or businesses, or whether the objects he used were
delivered from outside New York State.
*4 Sixth, to the extent that Plaintiff brings FLSA claims
against Defendants Dermody and Sickler, Plaintiff fails to
sufficiently allege that they exercised the requisite level
of control to qualify as employers under the FLSA. “The
FLSA permits an individual within a company that employs
a worker to be held personally liable for damages as that
worker's employer.” Nokaj v. Pappas New York, No. 24-
cv-1076, 2025 WL 2380403, at *2 (S.D.N.Y. Aug. 15, 2025)
(internal quotation marks, citation, and alterations omitted).
“Courts consider four factors to determine whether someone
is an employer on a theory of formal control: ‘whether the
alleged employer (1) had the power to hire and fire the
employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the
rate and method of payment, and (4) maintained employment
records.’ ” Id. at *3 (quoting Carter v. Dutchess Cmty. Coll.,
735 F.2d 8, 12 (2d Cir. 1984)). Here, while Plaintiff alleges
that Defendant Sickler is Plaintiff's immediate supervisor,
Plaintiff fails to allege whether Defendant Sickler had the
authority to hire and fire employees, determine his rate of
pay, maintain employee records, or control his work schedule.
Likewise, while it appears that Defendant Dermody is the
CEO of Children's Home, see Dkt. No. 9-2 at 47, Plaintiff
has not alleged whether Defendant Dermody exercises
operational control over Children's Home employees. See
Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir. 2013)
(affirming CEO as “employer” subject to FLSA, noting that
“[a] person exercises operational control over employees if
his or her role within the company, and the decisions it entails,
directly affect the nature or conditions of the employees’
employment” but the person does not need to “directly come
into contact with the [employees], their workplaces, or their
schedules”).
Lastly, Plaintiff alleges that Defendant Sickler violated
Plaintiff's First Amendment rights and the PPPL by sharing
the nature of his pending lawsuits with other coworkers
without his knowledge or consent. Dkt. No. 9 at 3; Dkt.
No. 9-1 at 3. The First Amendment does not contain a
constitutional right to privacy of this type. To the extent that
Plaintiff asserts a violation of his right to privacy protected
by the Due Process Clause of the Fourteenth Amendment,
it “can be violated only by conduct that may be fairly
characterized as ‘state action.’ ” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 924 (1982). Here, the actions of Defendants
—a private corporate entity and private employees—do
not constitute state action. See Johnson v. Carpenter Tech.
Corp., 723 F. Supp. 180, 185 (D. Conn. 1989) (noting that
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“in the context of an employee's claim against a private
employer,” a right to privacy “has little force because it
protects against incursions by the government and persons
acting as government agents”). Plaintiff's PPPL claim also
fails because there is no private right of action under the PPPL
and the law only applies to “agencies,” as defined by Section
92(1) of the PPPL. See Eckert v. City of Buffalo, No. 22-
cv-540, 2025 WL 2836547, at *21, 21 n.34 (W.D.N.Y. Oct.
6, 2025) (citing, inter alia, Lawrence v. State, 688 N.Y.S.2d
392, 395-96 (N.Y. Ct. Cl. 1999)).
Accordingly, the Amended Complaint is dismissed with leave
to amend as to Plaintiff's NYSHRL and FLSA claims against
all Defendants, and Plaintiff's Title VII and ADA claims as to
Children's Home.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 6, is
terminated as moot in light of Plaintiff's subsequent filing of
the Amended Complaint; and the Court further
ORDERS that Plaintiff's Title VII and ADA claims
against Defendants Dermody and Sickler and Plaintiff's First
Amendment and PPPL claims against all Defendants be
DISMISSED with prejudice and without leave to amend;
and the Court further
ORDERS that Plaintiff's Title VII and ADA claims against
Children's Home and Plaintiff's NYSHRL and FLSA claims
against all Defendants be DISMISSED without prejudice
and with leave to amend; and the Court further
ORDERS that any amended complaint must be filed within
thirty (30) days of the filing date of this Order; and the Court
further
ORDERS that, if Plaintiff timely files an amended complaint,
it shall be referred to Magistrate Judge Stewart for review;
and if Plaintiff fails to file a timely amended complaint, the
Clerk is directed to close this case without further order of this
Court; and the Court further
ORDERS that the Clerk serve a copy of this Order on all
Parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 292071
Footnotes
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system.
2 The Court does not review the Report-Recommendation assessing the sufficiency of the allegations in the
Complaint, given the subsequent filing of an Amended Complaint. See Dkt. No. 9.
3 To the extent that Plaintiff raises a retaliation claim under Title VII or the NYSHRL, Plaintiff fails to link his
termination to protected activity (i.e., opposition to statutorily prohibited discrimination). See Krul v. Brennan,
501 F. Supp. 3d 87, 99 (N.D.N.Y. 2020) (quoting Vega, 801 F.3d at 90) (explaining that to state a claim
of retaliation under Title VII, a plaintiff must plausibly plead a connection between the alleged retaliatory
act and engagement in a protected Title VII activity); see also Ronen v. RedRoute, Inc., 763 F. Supp. 3d
319, 333-34 (E.D.N.Y. 2025) (noting that demonstrating causation under NYSHRL aligns with the standard
under NYCHRL, which requires that the protected activity be a motivating factor in the adverse action). While
Plaintiff has alleged that he filed a series of grievances seeking overtime compensation and a pay raise, see
Dkt. No. 9 at 1-2, 5, Plaintiff does not allege that he complained of discriminatory treatment on the basis of his
race. See, e.g., Harris v. Off. of N.Y. State Comptroller, No. 20-cv-8827, 2022 WL 814289, at *17 (S.D.N.Y.
Mar. 17, 2022) (dismissing retaliation claim where plaintiff “failed to allege that he engaged in protected
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activity” because he “d[id] not allege that he ever explicitly raised the issue of gender discrimination when
he complained”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Mathura v. Council for Human Services Home Care Services, Inc., 107 F.3d 3 (1997)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
107 F.3d 3
Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a “Table of
Decisions Without Reported Opinions” appearing in
the Federal Reporter. See Federal Rule of Appellate
Procedure 32.1 and this court's local Rule 32.1.1. for
rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Second Circuit.
Robert MATHURA, Plaintiff-Appellant,
v.
COUNCIL FOR HUMAN SERVICES HOME
CARE SERVICES, INC., Defendant-Appellee.
No. 96-7687.
|
Feb. 12, 1997.
Appeal from the United States District Court for the Southern
District of New York (Owen, Judge).
Attorneys and Law Firms
Appearing for Appellant: Robert Mathura, pro se, Bronx,
New York.
Appearing for Appellee: Mark E. Brossman, Chadbourne &
Parke LLP, New York, New York.
Before OAKES, WINTER and CABRANES, Circuit Judges.
Opinion
*1 This cause came to be heard on the transcript of record
from the United States District Court for the Southern District
of New York and was argued.
ON CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED that the
judgment of the District Court is hereby affirmed.
Robert Mathura, pro se, appeals from Judge Owen's dismissal
of his complaint against the Council for Human Services
Home Care Services, Inc. (“CHS”). Mathura claims that while
he was employed as an Assistant Director of Administrative
Services at CHS, his supervisor subjected him to harassment,
verbal abuse, and discrimination based on race and color, in
violation of Title VII, 42 U.S.C. § 2000e et seq., and New
York State's Human Rights Law, N.Y. Exec. L. § 290 et seq.
The district court entered summary judgment on behalf of
CHS.
Mathura challenges the summary judgment order on four
grounds: (i) CHS's attorney filed an affidavit in support
of summary judgment that was not made on her personal
knowledge; (ii) issues remained in the case regarding
Mathura's vacation benefits; (iii) CHS's failure to follow its
internal grievance procedure violated Mathura's due process
rights; and (iv) the grant of summary judgment was improper.
We find all four claims meritless.
Mathura's claim that an affidavit filed by CHS's attorney,
Eileen Fields, was not based on her personal knowledge, in
violation of Rule 56(e), Fed.R.Civ.P., fails because Mathura
has not identified anything in the affidavit of which Mrs.
Field lacked personal knowledge. Mathura's second claim
regarding his accumulated vacation and benefits fails because
Mathura made no proffer in support of this claim in response
to CHS's motion for summary judgment. Similarly, Mathura's
third claim, that CHS violated his due process right by failing
to follow its own grievance procedures, fails because he made
no proffer in support of this claim either. Moreover, as a
private employer, CHS is not subject to the procedural due
process requirements of the Constitution. See Wal-Juice Bar,
Inc. v. Elliott, 899 F.2d 1502, 1507 (6th Cir.1990) (“[P]urely
private employment of the plaintiffs creates no property
interest to which procedural due process protections apply.”).
Mathura also argues that the district court's order of summary
judgment was improper. We disagree. To the extent that
Mathura's claims were based on acts that occurred prior to
August 16, 1990, the claims are time barred because they
occurred 300 days before Mathura filed his complaint with the
New York State Department of Human rights. See 42 U.S.C.
§ 2000e-5(e) (Title VII plaintiff initially seeking relief with a
state agency must file complaint with the EEOC within 300
days of alleged unlawful act). We reject the claims that arose
after August 16, 1996, for failure to establish a prima facie
case of discrimination substantially for the reasons stated by
the district court. Mathura v. Council for Human Servs. Home
Care Servs., Inc., No. 95 Civ. 4191(RO), 1996 WL 157496
(S.D.N.Y. Apr. 2, 1996). We also reject Mathura's claims
alleging discrimination on grounds other than race or color, as
those claims were not raised in his administrative complaint
and are not “reasonably related” to the complaint. Butts v. City
of New York Dep't of Hous. Preservation and Dev., 990 F.2d
1397, 1401-02 (2d Cir.1993).
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*2 We therefore affirm. All Citations
107 F.3d 3, 1997 WL 62940 (Table)
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Nelson v. WSWHE Boces, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 3963791
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James NELSON, Plaintiff,
v.
WSWHE BOCES, Defendant.
1:25-CV-0524 (MAD/ML)
|
Signed September 17, 2025
Attorneys and Law Firms
JAMES NELSON, Plaintiff, Pro Se, 1019 State Route 196,
Hudson Falls, New York 12839.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
*1 The Clerk has sent a pro se complaint in the above
captioned action together with an application to proceed in
forma pauperis, filed by James Nelson (“Plaintiff”) to this
Court for review. (Dkt. Nos. 1, 2.) For the reasons discussed
below, I grant Plaintiff's in forma pauperis application (Dkt.
No. 2) and recommend that the Complaint (Dkt. No. 1) be (1)
accepted in part for filing, and (2) dismissed in part.
I. BACKGROUND
On April 29, 2025, Plaintiff commenced this action by
filing a pro se Complaint against defendant WSWHE Boces
(“Defendant”) alleging violations of his civil rights in the
context of his employment with Defendant. (See generally
Dkt. No. 1.) Plaintiff's Complaint consists of two form
complaints one alleging violations pursuant to Title VII of the
Civil Rights Act (“Title VII”), as amended, and one pursuant
to the Americans with Disabilities Act (“ADA”). (Id.)
More specifically, the Complaint alleges that on December
29, 2022, while working for Defendant, another employee
(Boris) snuck up behind Plaintiff and placed his butt on
Plaintiff, which pressed Plaintiff into the machine Plaintiff
was operating. (Dkt. No. 1 at 3.) The Complaint alleges that
Plaintiff pushed Boris away and Boris said he was trying to
fart because “they were smelly on his way to work.” (Id.) The
Complaint alleges that Plaintiff directed Boris to never do that
again. (Id.)
The Complaint alleges that a short while later, Plaintiff
bent over to pick up something and Boris again snuck up
behind Plaintiff and thrusted “his genitals into [Plaintiff's]
rear end.” (Id.) Plaintiff alleges that he “freaked out” and
told Boris to stop being behind Plaintiff. (Id.) The Complaint
alleges that a few minutes later, Boris was downstairs from
where Plaintiff was located and yelled like he needed Plaintiff
immediately. (Id.) Plaintiff alleges that when he arrived
downstairs, Boris merely wanted to point out a woman
walking her dog and informed Plaintiff of “what he would like
to do to” the woman. (Id.)
Plaintiff alleges that Boris then “locked his lips” and looked at
Plaintiff's “penis area and asked if [Plaintiff] was gay.” (Dkt.
No. 1 at 3.) The Complaint alleges that Plaintiff then
physically removed Boris from the door frame that he was
standing in and texted their supervisor (Kevin B.) about the
uncomfortable work environment. (Id.)
The Complaint alleges that Plaintiff resumed his work and
Boris again snuck up behind him and recorded Plaintiff trying
to work. (Id.) Plaintiff alleges that Boris then pressed himself
into Plaintiff again and farted or made the farting noise. (Id.)
Plaintiff alleges that he then left the job site and took his lunch
break. (Id.)
The Complaint alleges that Kevin B. reported Plaintiff's
interaction with Boris to human resources, which resulted
in Plaintiff being sat down with “[a] lady” and “some
random guy that wasn't HR.” (Id.) Plaintiff alleges that
“[t]he HR lady” directed him not to tell anyone about his
experience or he could be terminated. (Id.) The Complaint
alleges that from December 29, 2022, until January 25, 2023,
Plaintiff “had to work at the same place where [he] reported
sexual harassment, unwanted touching, many haz[ard]ous
happenings, and retaliation.” (Id.)
*2 Plaintiff alleges that at some point in time an individual
named Wayne C. spoke with him in the open while other
people listened to what was happening. (Dkt. No. 1 at
3.) Plaintiff alleges that the people who overheard his
conversation with Wayne C., laughed and one made eye
contact with him. (Id.)
The Complaint alleges that Kevin B. asked Plaintiff to work
on January 25, 2023, beginning at 11 a.m., but that Plaintiff's
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contracted hours were 3 p.m. to 11 p.m. (Dkt. No. 1 at 9.)
Plaintiff alleges that he was exposed to hazardous conditions
including dust and debris without proper personal protective
equipment, which resulted in an infection in Plaintiff's lungs
and long-term effects that included difficulty being around
strong scents and changes to Plaintiff's ability to taste and
smell. (Id. at 9-10.)
The Complaint alleges that for approximately 66 days, several
unnamed teachers and staff exposed Plaintiff to strong scents
in the building he was tasked with cleaning, which created a
hostile work environment. (Dkt. No. 1 at 10.)
Plaintiff alleges that he informed a co-worker (“Nate G.”) that
another co-worker (“Blake S.”) sought overtime to complete
work that was done by Nate G., and this report to Nate G.
ultimately resulted in Plaintiff's termination. (Id.)
Plaintiff alleges that he continues to take medication for
asthma, has difficulty breathing, and coughs up debris. (Id.)
Plaintiff alleges that after he reported the unsafe working
conditions he endured, he was subject to retaliation in that (1)
he was assigned to less favorable tasks, (2) his hours were
manipulated, and (3) he was assigned extra duties. (Dkt. No.
1 at 13.)
Plaintiff alleges that his supervisors lodged baseless
allegations of incompetence and insubordination against him
because he sought protection for his health and reported the
harassment he endured. (Id.)
Plaintiff alleges that he endured a hostile work environment
that senior management failed to address, which made him
feel “powerless and unsupported.” (Dkt. No. 1 at 13.)
Based on these factual allegations, Plaintiff asserts the
following five claims: (1) a claim of retaliation in violation
of Title VII of the Civil Rights Act of 1964, (2) a claim of
discrimination in violation of the Americans with Disabilities
Act, (3) a claim of discrimination in violation of the New York
State Human Rights Law, (4) a claim that Defendant violated
the Occupational Safety and Health Act (“OSHA”), and (5)
a claim that Defendant retaliated against Plaintiff in violation
of the Fair Labor Standards Act (“FLSA”). (Dkt. No. 1 at 13.)
As relief, Plaintiff seeks a “very hard penalty”; the
reinstatement of Nate Guay (an individual who Plaintiff
alleges was terminated because he testified on Plaintiff's
behalf at a Section 75 hearing); back salary; and future lost
wages, benefits, and retirement. (Dkt. No. 1 at 12.)
Plaintiff seeks leave to proceed in forma pauperis (“IFP”).
(Dkt. No. 2.)
II. PLAINTIFF'S APPLICATION TO PROCEED IN
FORMA PAUPERIS
When a civil action is commenced in a federal district court,
the statutory filing fee, currently set at $405, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized, however,
to permit a litigant to proceed IFP status if a party “is unable
to pay” the standard fee for commencing an action. 28 U.S.C.
§ 1915(a)(1). 1 After reviewing Plaintiff's IFP application
(Dkt. No. 2), the Court finds that Plaintiff meets this standard.
Therefore, Plaintiff's application to proceed IFP is granted. 2
III. LEGAL STANDARD FOR REVIEW OF THE
COMPLAINT
*3 “Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at any
time if the court determines that ... the action ... (i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In order to state a claim upon which relief can be granted,
a complaint must contain, inter alia, “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). The requirement that a
plaintiff “show” that he or she is entitled to relief means that
a complaint “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis
added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
[2007]). “Determining whether a complaint states a plausible
claim for relief ... requires the ... court to draw on its judicial
experience and common sense.... [W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has
not shown–that the pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint ... the court must accept the
material facts alleged in the complaint as true and construe all
reasonable inferences in the plaintiff's favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
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However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff's pro se complaint “broadly, as we
must” and holding that the complaint sufficiently raised a
cognizable claim). “[E]xtreme caution should be exercised in
ordering sua sponte dismissal of a pro se complaint before the
adverse party has been served and [the] parties ... have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the
court must construe his pleadings liberally. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having
reviewed Plaintiff's Complaint with this principle in mind, I
recommend that it be accepted in part for filing and dismissed
in part.
A. Title VII
“A common requirement of Plaintiff's Title VII claims ... is
that [ ]he must plausibly allege that the actions taken against
[him] were related to a protected characteristic.” Collings
v. State Univ. of New York at Cortland, 24-CV-0534, 2025
WL 904649, at *7 (N.D.N.Y. Mar. 25, 2025) (Suddaby, J.).
Title VII prohibits discrimination on the basis of race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2 (a)(1).
Claims brought pursuant to Title VII are required to meet
certain conditions precedent to filing in federal court, and
must adhere to certain time limits. Specifically, in New
York State, a plaintiff must file a complaint with the Equal
Employment Opportunity Commission (“EEOC”) or the New
York State Division of Human Rights (“NYSDHR”) within
300 days of the alleged discriminatory or retaliatory conduct.
King v. Aramark Servs. Inc., 96 F.4th 546, 559 (2d Cir. 2024).
Discrete adverse events that occurred more than 300 days
before that complaint are time-barred and cannot constitute
a basis for a plaintiff's claim of discrimination or retaliation.
See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d
72, 78-79 (2d Cir. 2015) (noting that discrete retaliatory or
discriminatory acts occur on the day they happen and are not
actionable if they occur outside of the relevant time period
[which is 300 days in New York], “even when they are related
to acts alleged in timely filed charges”).
*4 Here, Plaintiff alleges in his Complaint that he filed
charges with the EEOC on or about April 12, 2024. (Dkt. No.
1 at 5.) As a result, Plaintiff must have identified an adverse
action occurring on or after June 17, 2023, in order to state
a claim for discrimination or retaliation; any alleged discrete
adverse actions occurring before that date are time-barred and
cannot provide the basis for his claim.
1. Retaliation
“[F]or a retaliation claim ... the plaintiff must plausibly
allege that: (1) defendants discriminated – or took an adverse
employment action – against [her], (2) ‘because’ [she] has
opposed any unlawful employment practice.” Vega, 801 F.3d
72, 90 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-3[a]). In
the retaliation context, “an adverse employment action is any
action that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’ ” Vega,
801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 57 [2006]). Unlike discrimination claims,
a retaliation claim requires that the retaliation was the but-
for cause of the employer's adverse action, such that “ ‘the
adverse action would not have occurred in the absence of
the retaliatory motive.’ ” Vega, 801 F.3d at 90 (quoting Zann
Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013)).
Moreover, a plaintiff need not allege that the retaliatory action
was taken related to a protected characteristic, but rather
that the retaliatory action was taken because he or she had
engaged in a protected activity, such as reporting or opposing
discrimination. Vega, 801 F.3d at 91.
An employee's complaint may qualify as protected activity
where (i) the employee “had a good faith, reasonable
belief that [he] was opposing an employment practice made
unlawful by Title VII,” and (ii) the employer “understood,
or could reasonably have understood, that the [employee's]
opposition was directed at conduct prohibited by Title VII.”
Kelly v. Howard I. Shapiro & Assoc. Consulting Engineers,
P.C., 716 F.3d 10, 14-15 (2d Cir. 2013) (citations omitted).
“[I]nformal complaints to management as to discrimination
on a basis prohibited by Title VII” have been deemed
protected activity. Amin v. Akzo Nobel Chems., Inc., 282 F.
App'x 958, 961 (2d Cir. 2008) (summary order) (citing Cruz
v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)). But
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such informal complaints “must be sufficiently specific to
make it clear that the employee is complaining about conduct
prohibited by Title VII.” Risco v. McHugh, 868 F. Supp.
2d 75, 110 (S.D.N.Y. 2012); see also Whitley v. Montefiore
Med. Grp., 13-CV-4126, 2016 WL 1267788, at *11 (S.D.N.Y.
Mar. 30, 2016) (“A generalized complaint about perceived
mistreatment without a specific connection to discrimination
based on membership in a protected class is insufficient to
establish a protected activity.”).
The Complaint can be liberally construed as alleging that
Plaintiff's report of his interaction with Boris constituted his
opposition to an unlawful employment practice.
With respect to whether Plaintiff suffered a timely adverse
employment action is a more difficult question.
Plaintiff's Complaint alleges that sometime in December
2022, he spoke to a human resources representative of
Defendant. (Dkt. No. 1 at 3, 5.) Plaintiff alleges that he
informed the “HR lady” of the sexual harassment he endured
from Boris and she directed Plaintiff not to tell anyone about
the experience or he could be terminated. (Id. at 3, 5.) To
the extent that Plaintiff's retaliation claim is premised on this
alleged threat of termination, it is untimely based on filing of
Plaintiff's EEOC complaint.
*5 To the extent that Plaintiff bases his retaliation claim on
his termination, which appears to have occurred in October
2023, the Complaint fails to allege facts plausibly suggesting
that the termination was related to Plaintiff's protected
activity. (Dkt. No. 1 at 10.) First, the Complaint alleges
that Plaintiff was terminated because he informed Nate G.
that Blake S. filed for overtime to complete work that Nate
G. actually completed. (Id.) This is not based on Plaintiff's
report or opposition to discrimination. Second, even if
the Complaint is liberally construed as alleging temporal
proximity between Plaintiff's reported sexual harassment in
December 2022, and his termination in October 2023, this
time lapse is too attenuated to draw an inference of causation.
(Compare Dkt. No. 1 at 3, with Dkt. No. 1 at 10.)
“There is no firm outer limit to the temporal proximity
required, but most courts in the Second Circuit have held
that a lapse of time beyond two or three months will break
the causal inference.” De Figueroa v. N.Y., 403 F. Supp. 3d
133, 157 (E.D.N.Y. 2019) (citing Walder v. White Plains
Bd. of Educ., 738 F. Supp. 2d 483, 503–04 (S.D.N.Y. 2010)
(collecting cases)); see also Dodd v. City Univ. of N.Y., 489
F. Supp. 3d 219, 247 (S.D.N.Y. 2020) (“Generally, to show
causation through temporal proximity alone, courts in this
Circuit require no more than two months to have passed
between a protected activity and an adverse action.”).
More than ten months elapsed between Plaintiff's alleged
protected conduct in December 2022, and the alleged adverse
action terminating his employment in October 2023. As a
result, I recommend that, to the extent Plaintiff's retaliation
claim is premised on his termination, it be dismissed for
failure to allege facts plausibly suggesting causation between
his protected conduct and the adverse action.
However, to the extent that Plaintiff bases his retaliation claim
on alleged inaccurate negative evaluations, assignment to less
favorable tasks, assignment of additional duties, and a change
in the hours that he was assigned to work (Dkt. No. 1 at 9,
13), I find that these actions could deter a reasonable person
from complaining about an unlawful employment practice. 3
See Herling v. N.Y.C. Dep't of Educ., 13-CV-5287, 2014 WL
1621966, at *9 (E.D.N.Y. Apr. 23, 2014) (quoting Zelnik v.
Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir. 2006))
(in the education context “[t]he Second Circuit has found
that ‘negative evaluation letters, express accusations of lying,
assignment of lunchroom duty, reduction of class preparation
periods, failure to process teacher's insurance forms, [and]
transfer from library to classroom teaching ...’ may qualify
as adverse employment actions for purposes of a retaliation
claim.”). In addition, the Complaint alleges that these actions
occurred “to punish [Plaintiff] for asserting his rights.” (Dkt.
No. 1 at 13.)
Out of an abundance of caution, mindful of the Second
Circuit's instruction that a pro se plaintiff's pleadings must
be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d
at 191, and without expressing an opinion as to whether
Plaintiff can withstand a properly filed motion to dismiss
or for summary judgment, I recommend that a response be
required to Plaintiff's Title VII retaliation claim related to the
alleged adverse actions of inaccurate negative evaluations,
assignment to less favorable tasks, assignment of additional
duties, and a change in the hours that he was assigned to work,
because Plaintiff reported his interaction with Boris.
2. Discrimination and Hostile Work Environment
To the extent that the Complaint is liberally construed as
alleging discrimination and hostile work environment claims
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pursuant to Title VII, I recommend that they be dismissed for
failure to state a claim upon which relief may be granted.
a. Discrimination
*6 At this stage of Title VII litigation, a plaintiff must allege
(1) that he is a member of a protected class; (2) that he was
qualified for employment in the position; (3) that he suffered
an adverse employment action; and (4) facts suggesting
an inference of discriminatory motivation in imposing the
adverse action. Littlejohn v. City of New York, 795 F.3d 297,
307 (2d Cir. 2015). An adverse employment action, for the
purpose of a discrimination claim, is “a ‘materially adverse
change’ in the terms and conditions of employment.” Buon v.
Spindler, 65 F.4th 64, 79 (2d Cir. 2023) (quoting Sanders v.
N.Y.C. Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)). “
‘Examples of materially adverse changes include termination
of employment, a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other
indices ... unique to a particular situation.’ ” Buon, 65 F.4th
at 79 (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.
2003)).
As an initial matter, Plaintiff has variously alleged (or his
Complaint could be liberally construed as alleging) that he
faced discriminatory conduct on the basis of sex or sexual
harassment. (Dkt. No. 1 at 2.)
However, the Complaint fails to allege facts plausibly
suggesting that any of the allegedly adverse employment
actions Plaintiff experienced (i.e., termination or reduction in
wages (Dkt. No. 1 at 2)) were motivated by discrimination
on the basis of his sex. (See generally Dkt. No. 1.) “Simply
being a member of a protected class, without something more
to link that status to the action in question, is not enough
to raise a reasonable inference of discriminatory animus.”
Cole v. Board of Trustees of Northern Ill. Univ., 838 F.3d
888, 900 (7th Cir. 2016); see also Canady v. Union 1199/
SEIU, 527 F. Supp. 3d 515, 516 (W.D.N.Y. 2021) (“simply
falling into a protected category is not enough”); Perry v.
County of Westchester, 06-CV-3000, 2008 WL 11438085,
at *17 (S.D.N.Y. Mar. 31, 2008) (“Plaintiff's membership
in a protected class in and of itself does not establish
discriminatory animus”); see also Karunakaran v. Borough
of Manhattan Cmty. Coll., 18-CV-10723, 2022 WL 902370,
at *3 (S.D.N.Y. Mar. 28, 2022) (quoting Littlejohn v. City of
New York, 795 F.3d 297, 311 (2d Cir. 2015)) (“Although a
plaintiff is not required to plead facts proving each element of
a prima facie case of discrimination at the pleading stage, her
allegations must provide ‘plausible support’ for a ‘minimal
inference’ that the employer was motivated by discriminatory
intent.”).
Instead, the Complaint alleges that after reporting unsafe
working conditions and harassment, Plaintiff was “reassigned
to less favorable tasks, and [his] hours were manipulated
to punish [him] for speaking up.” (Dkt. No. 1 at 13.)
Plaintiff also alleges that he was ultimately terminated but
Plaintiff believes that “was the result of retaliation.” (Id.) The
Complaint is devoid of facts plausibly suggesting any adverse
employment action was motivated by discriminatory animus.
As a result, I recommend that Plaintiff's Title VII
discrimination claim be dismissed for failure to state a claim
upon which relief may be granted.
b. Hostile Work Environment
“To state a hostile work environment claim, a plaintiff must
plead facts tending to show that the complained of conduct:
(1) is objectively severe or pervasive—that is, creates an
environment that a reasonable person would find hostile
or abusive; (2) creates an environment that the plaintiff
subjectively perceives as hostile or abusive; and (3) creates
such an environment because of the plaintiff's sex, or another
protected characteristic.” Robinson v. Harvard Prot. Servs.,
495 F. App'x 140, 141 (2d Cir. 2012); see also Feingold v.
New York, 366 F.3d 138, 149-50 (2d Cir. 2004).
*7 The Complaint fails to allege facts plausibly suggesting
that any of the allegedly hostile conditions that Plaintiff
experienced (i.e., “bloody tampons being placed in various
locations, including sinks, toilets, and inappropriately on and
around garbage cans[, and t]eachers also left vomit and urine
on floors”) were created because of Plaintiff's sex or other
protected characteristic. (Dkt. No. 1 at 10, 14.)
Moreover, Plaintiff worked as a custodian for Defendant. (Id.)
Hence, the conditions that Plaintiff alleges constituted the
hostile environment, were instead a fundamental component
of his job duties.
As a result, I recommend that any hostile work environment
claim pursuant to Title VII be dismissed for failure to state a
claim upon which relief may be granted.
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c. Hostile Work Environment – Sexual Harassment
Under a hostile work environment theory of sexual
harassment, a plaintiff may “recover even in the absence of a
tangible job action against him.” Perks v. Town of Huntington,
251 F. Supp. 2d 1143, 1155 (E.D.N.Y. 2003). “To establish a
hostile work environment under Title VII ... a plaintiff must
show that ‘the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment
and create an abusive working environment.” Littlejohn v.
City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Although Plaintiff's allegations related to the incident with
Boris on December 29, 2022, may support each element of a
hostile work environment claim based on sexual harassment,
Plaintiff fails to allege facts plausibly suggesting that he
acted within 300 days of the alleged incident (or that a more
recent incident occurred) by filing a charge with the EEOC
or NYSDHR.
As a result, I recommend that Plaintiff's hostile work
environment claim premised on sexual harassment be
dismissed for failure to comply with the administrative
agency charge provisions of Title VII.
B. The ADA
Title I of the ADA prohibits employers from “discriminat[ing]
against a qualified individual on the basis of disability
in regard to ... the hiring, advancement, or discharge of
employees.” 42 U.S.C. § 12112(a) (emphasis added).
In order to plead a viable ADA claim, Plaintiff must allege
that “(1) his employer is subject to the ADA; (2) he was
disabled within the meaning of the ADA; (3) he was otherwise
qualified to perform the essential functions of his job, with
or without reasonable accommodation; and (4) he suffered
adverse employment action because of his disability.” Brown
v. N.Y.C. Dep't of Educ., 806 F. App'x 45, 49 (2d Cir. 2020)
(alterations in original) (quoting Sista v. CDC Ixis N. Am.,
Inc., 445 F.3d 161, 169 (2d Cir. 2006)).
“A plaintiff alleging disability discrimination ‘can base [his]
claim on any of three available theories: (1) intentional
discrimination (disparate treatment); (2) disparate impact; and
(3) failure to make reasonable accommodation.’ ” Brooklyn
Ctr. for Psychotherapy, Inc. v. Phila. Indem. Ins. Co., 955 F.3d
305, 311 (2d Cir. 2020) (quoting Fulton v. Goord, 591 F.3d
37, 43 (2d Cir. 2009)).
The ADA defines a disability as “a physical or mental
impairment that substantially limits one or more major life
activities of such individual; a record of such an impairment;
or being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). To establish a disability under the first prong,
“a plaintiff must: (1) show that she suffers from a physical
or mental impairment; (2) identify the activity claimed to
be impaired and establish that it constitutes a major life
activity; and (3) show that her impairment substantially limits
the major life activity previously identified.” Perez v. N.Y.
Presbyterian/Weill Cornell Med. Ctr., 23-CV-6152, 2024 WL
4847549, at *4 (S.D.N.Y. Apr. 8, 2024). But “allegations
that merely track the language of the statute or vague,
conclusory assertions without details on how a plaintiff's
condition actually affects a major life activity are insufficient
to survive a motion to dismiss.” Perez, 2024 WL 1514216, at
*5 (quoting Baluch v. 300 W. 22 Realty, LLC, 21-CV-9747,
2023 WL 112547, at *5 (S.D.N.Y. Jan. 5, 2023)).
*8 Plaintiff alleges that his disability is “workplace
asthma.” (Dkt. No. 1 at 8.) The Complaint alleges that
Plaintiff still takes medication for his asthma and has
“difficulty breathing and cough[s] up debris.” (Dkt. No. 1
at 10.) The undersigned assumes—without deciding—that
this sufficiently alleges that Plaintiff is disabled within the
meaning of the ADA. Moreover, the undersigned assumes
that Plaintiff was qualified to perform the essential functions
of the job.
However, Plaintiff fails to allege facts plausibly suggesting
an inference of discrimination on the basis of his disability.
See Kirkland-Hudson v. Mount Vernon City Sch. Dist., 665
F. Supp. 3d 412, 457 (S.D.N.Y. 2023) (dismissing plaintiff's
disability claim because she failed to “link the [adverse
actions] to her alleged disability ... for instance, by identifying
any instances of direct animus or differential treatment of
similarly situated competitors”); Harris v. N.Y.C. Hum. Res.
Admin., 20-CV-2011, 2022 WL 3100663, at *11 (S.D.N.Y.
Aug. 4, 2022) (dismissing plaintiff's disability discrimination
claims under the ADA because the complaint did not “allege
a single act by [plaintiff's supervisor] which reflected animus
towards [plaintiff's] ... disability”).
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Plaintiff fails to identify a single statement or act that suggests
even “a minimal inference” that his asthma played a role
in decision-making related to him. Wright v. City of New
York, 23-CV-3149, 2024 WL 3952722, at *7 (S.D.N.Y. Aug.
27, 2024) (citing Dooley v. JetBlue Airways Corp., 636 F.
App'x 16, 21 (2d Cir. 2015)). In addition, Plaintiff fails
to provide examples of differential treatment of similarly
situated individuals. Wright, 2024 WL 3952722, at *7 (citing
Sosa v. N.Y.C. Dep't of Educ., 368 F. Supp. 3d 489, 514
(E.D.N.Y. 2019)) (“[I]t is insufficient for a plaintiff to
make naked assertions of disparate treatment without factual
allegations indicating those employees treated differently
were similarly situated.”)
As a result, I recommend that Plaintiff's ADA discrimination
claim be dismissed for failure to state a claim upon which
relief may be granted.
C. The OSHA
“[I]t is now well established that ‘OSHA violations do not
themselves constitute a private cause of action for breach.’
” Am. Fed'n of Gov't Employees, AFL-CIO v. Rumsfeld, 321
F.3d 139, 143-44 (D.C. Cir. 2003) (quoting Crane v. Conoco,
Inc., 41 F.3d 547, 553 (9th Cir. 1994); citing Pedraza v. Shell
Oil Co., 942 F.2d 48, 52 (1st Cir. 1991) (“[E]very court faced
with the issue has held that OSHA creates no private right of
action.”)).
As a result, I recommend that any claims Plaintiff attempts to
assert pursuant to OSHA be dismissed for failure to state a
claim upon which relief may be granted.
D. The FLSA
To prevail on a FLSA retaliation claim, a plaintiff must
show “(1) participation in protected activity known to the
defendant, such as the filing of a FLSA lawsuit; (2) an
employment action disadvantaging the plaintiff; and (3) a
causal connection between the protected activity and the
adverse employment action.” Velazquez v. Yoh Servs., LLC,
803 F. App'x 515, 517 (2d Cir. 2020) (quoting Mullins v. City
of New York, 626 F.3d 47, 53 (2d Cir. 2010)). To engage in
protected activity, an employee must make a complaint that
is “sufficiently clear and detailed for a reasonable employer
to understand it ... as an assertion of rights protected by the
statute and a call for their protection.” Greathouse v. JHS
Sec. Inc., 784 F.3d 105, 107 (2d Cir. 2015) (quoting Kasten
v. Saint-Gobain Performance Plastics Corp., 531 U.S. 1, 14
(2011)).
*9 The FLSA was enacted to remedy “labor conditions
detrimental to the maintenance of the minimum standard of
living necessary for health, efficiency, and general well-being
of workers.” 29 U.S.C. § 202(a). An employee need not
cite a specific statute, but her “complaint to the employer
[must] be of a colorable violation of the statute.” Castagna
v. Luceno, 09-CV-9332, 2011 WL 1584593, at *12 (S.D.N.Y.
Apr. 26, 2011); see also Patel v. Baluchi's Indian Rest., 08-
CV-9985, 2009 WL 2358620, at *11 (S.D.N.Y. July 30, 2009)
(finding that the plaintiffs had successfully satisfied the first
prong of the test after complaining to their employer of
“substandard and unsafe working conditions, low wages, and
lack of benefits”).
Plaintiff alleges that he reported unsafe working conditions
that included exposure to “chemicals and allergens.” (Dkt.
No. 1 at 13.) Plaintiff alleges that in close temporal proximity
to his reported unsafe working conditions, he was assigned to
“less favorable tasks” and his hours were manipulated. (Id.)
Out of an abundance of caution, mindful of the Second
Circuit's instruction that a pro se plaintiff's pleadings must
be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at
191, and without expressing an opinion as to whether Plaintiff
can withstand a properly filed motion to dismiss or for
summary judgment, I recommend that a response be required
to Plaintiff's FLSA retaliation claim against Defendant.
E. New York State Human Rights Law
New York law requires Plaintiff to serve a notice of claim
prior to bringing a claim pursuant to NYSHRL against
Defendant. N.Y. Educ. Law § 3813(1) (“No action or special
proceeding ... shall be prosecuted or maintained against any
school district ... unless it shall appear by and as an allegation
in the complaint or necessary moving papers that a written
verified claim upon which such action or special proceeding
is founded was presented to the governing body of said
district or school within three months after the accrual of such
claim[.]”). Plaintiff has not pled that he filed such a notice of
claim. (See generally Dkt. No. 1); see also Winbush v. New
York City Dep't of Educ., 23-CV-1230, 2025 WL 2624350,
at * (S.D.N.Y. Sept. 10, 2025) (finding that the plaintiffs’
“failure to file a notice of claim under Section 3813 prior
to initiating this litigation therefore bars the NYSHRL claim
asserted ... against the Municipal Defendants.”); Johnson v.
Rockland Cnty. BOCES, 21-CV-3375, 2022 WL 4538452, at
*5 (S.D.N.Y. Sept. 28, 2022) (quoting Carlson v. Geneva City
Sch. Dist., 679 F. Supp. 2d 355, 366 (W.D.N.Y. 2010); citing
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Benedith v. Malverne Union Free Sch. Dist., 38 F. Supp. 3d
286, 311 (E.D.N.Y. 2014)) (“Education Law § 3813(1) is a
statutory condition precedent to a [plaintiff's] bringing of a
proceeding against a school district or board of education, and
a [plaintiff's] failure to comply is a fatal defect mandating
dismissal of the action.”) (alterations in original).
As a result, I recommend that this cause of action be dismissed
for failure to state a claim upon which relief may be granted.
See Logan v. Albany City Sch. Dist., 24-CV-0887, 2025 WL
2457080, at *7 (N.D.N.Y. Aug. 27, 2025) (Nardacci, J.)
(citing Legra v. Bd. of Educ. of the City Sch. Dist. of the City
of N.Y., 14-CV-9245, 2016 WL 6102369, at *3 (S.D.N.Y. Oct.
19, 2016) (“Here, the plaintiff alleges only the date that she
filed the EEOC charge. She does not allege that the EEOC
charge provided the required notice. She also does not allege
that she served the notice on the governing arm of the district,
much less that she did so within three months of the time
that her claims accrued. Accordingly, the plaintiff does not
meet statutory notice of claim requirements, and all state law
claims against the [defendant] are dismissed.”)) (dismissing
the plaintiff's claims against defendant where she “failed to
adequately allege that she complied with the notice of claim
requirements that ... govern her NYSHRL claims.”).
V. OPPORTUNITY TO AMEND
*10 Generally, a court should not dismiss claims contained
in a complaint filed by a pro se litigant without granting
leave to amend at least once “when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991);
see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave when justice so requires.”). An opportunity to
amend is not required, however, where “the problem with [the
plaintiff's] causes of action is substantive” such that “better
pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a
plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”).
Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, ... it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.). 4
With respect to Plaintiff's OSHA claim, I recommend that it
be dismissed without leave to replead because the defect with
the claim is substantive. Hendrix v. Pactiv LLC, 19-CV-6419,
2020 WL 562748, at *4 (W.D.N.Y. Feb. 5, 2020) (“Leave
to replead would be futile, since OSHA creates no private
cause of action. In other words, the defect in this claim is
substantive, and better pleading would not cure it.”).
However, with respect to Plaintiff's claims (1) pursuant
to the ADA, (2) pursuant to the NYSHRL, (3) alleging
discrimination pursuant to Title VII, (4) alleging a hostile
work environment pursuant to Title VII, and (5) alleging
retaliation pursuant to Title VII based on his termination, out
of deference to his pro se status, I recommend that he be
granted leave to amend.
If Plaintiff chooses to file an amended complaint, he
should note that the law in this circuit clearly provides
that “ ‘complaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.’
” Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995)
(McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363
(2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-
CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22,
1995) (Pooler, J.). Therefore, in any amended complaint,
Plaintiff must clearly set forth facts that give rise to the
claims, including the dates, times, and places of the alleged
underlying acts, and each individual who committed each
alleged wrongful act. In addition, the revised pleading should
allege facts demonstrating the specific involvement of any
of the named defendants in the constitutional deprivations
alleged in sufficient detail to establish that they were tangibly
connected to those deprivations. Bass v. Jackson, 790 F.2d
260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any
such amended complaint will replace the existing Complaint,
and must be a wholly integrated and complete pleading that
does not rely upon or incorporate by reference any pleading
or document previously filed with the Court. See Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)
(“It is well established that an amended complaint ordinarily
supersedes the original and renders it of no legal effect.”).
*11 ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma
pauperis (Dkt. No. 2) is GRANTED; and it is further
respectfully
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RECOMMENDED that the Court (1) require a response
to Plaintiff's (a) Title VII retaliation claim related to the
alleged adverse actions of inaccurate negative evaluations,
assignment to less favorable tasks, assignment of additional
duties, and a change in the hours that he was assigned to
work, and (b) FLSA retaliation claim; (2) DISMISS with
leave to replead Plaintiff's claims (a) pursuant to the ADA,
(b) pursuant to the NYSHRL, (c) alleging discrimination
pursuant to Title VII, (d) alleging a hostile work environment
pursuant to Title VII, and (e) alleging retaliation pursuant to
Title VII based on his termination; and (3) DISMISS without
leave to replead Plaintiff's claim pursuant to OSHA; and it
is further
ORDERED that the Clerk of the Court shall file a copy of
this order, report, and recommendation on the docket of this
case and serve a copy upon the parties in accordance with the
local rules. 5
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 6 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v.
Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
All Citations
Slip Copy, 2025 WL 3963791
Footnotes
1 The language of that section is ambiguous because it suggests an intent to limit availability of IFP status to
prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment
of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”).
The courts have construed that section, however, as making IFP status available to any litigant who can meet
the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City
of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
2 Plaintiff is reminded that, although his IFP application has been granted, he is still required to pay fees that
he may incur in this action, including copying and/or witness fees.
3 The Complaint is unclear when these alleged actions took place. To the extent that they occurred before
June 16, 2023, they are untimely.
4 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.)
(explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)—
that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely
it might be, that an amended complaint would be successful in stating a claim”—is likely not an accurate
recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds,
682 F. App'x 30.
5 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
6 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional
days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the
report, recommendation, and order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the
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last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended
until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2025 WL 3718639
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James NELSON, Plaintiff,
v.
WSWHE BOCES, Defendant.
1:25-cv-00524 (MAD/ML)
|
Signed December 23, 2025
Attorneys and Law Firms
JAMES NELSON, 1019 State Route 196, Hudson Falls, New
York 12839, Plaintiff pro se.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, United States District Judge:
I. INTRODUCTION
*1 On April 29, 2025, Plaintiff James Nelson commenced
this action pro se, asserting various claims arising out of
his employment at Defendant WSWHE BOCES. Dkt. No.
1. Plaintiff brings these claims pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), the Americans
with Disabilities Act (“ADA”), the Occupational Safety
and Health Act (“OSHA”), the Fair Labor Standards Act
(“FLSA”), and the New York State Human Rights Law
(“NYSHRL”). See id.
On September 17, 2025, Magistrate Judge Miroslav Lovric
issued an Order and Report-Recommendation (“R&R”)
granting Plaintiff's application to proceed in forma pauperis
(“IFP”) and recommending that the Court: (1) require
Defendant to answer or respond to (a) Plaintiff's Title VII
retaliation claim related to the alleged adverse actions of
inaccurate negative evaluations, assignment to less favorable
tasks, assignment of additional duties, and a change in the
hours that he was assigned to work, and (b) Plaintiff's
FLSA retaliation claim; (2) dismiss, with leave to replead,
Plaintiff's claims (a) pursuant to the ADA, (b) pursuant to the
NYSHRL, (c) pursuant to Title VII alleging discrimination,
(d) pursuant to Title VII alleging a hostile work environment,
and (e) pursuant to Title VII alleging retaliation based on
his termination; and (3) dismiss, without leave to replead,
Plaintiff's OSHA claim. See Dkt. No. 5 at 22. Plaintiff filed
objections to the R&R on October 1, 2025. Dkt. No. 6. For
the reasons set forth below, the R&R is adopted as modified
by this Memorandum-Decision and Order.
II. BACKGROUND
For a full recitation of the factual background, the Court refers
the parties to Magistrate Judge Lovric's R&R. See Dkt. No.
5 at 1-4.
III. DISCUSSION
A. Standard of Review
When a party files specific objections to a magistrate
judge's order and report-recommendation, the district court
makes a “de novo determination of those portions of the
report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1). When
a party declines to file objections or files “[g]eneral or
conclusory objections, or objections which merely recite
the same arguments presented to the magistrate judge,”
the court reviews those recommendations for clear error.
O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1
(N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted).
After appropriate review, “the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
For a plaintiff's complaint to meet the federal pleading
standard, the plaintiff need only plead “a short and plain
statement of the claim,” see Fed. R. Civ. P. 8(a)(2), with
sufficient factual “heft to ‘sho[w] that the pleader is entitled
to relief[,]’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007). Under this standard, the pleading's “[f]actual
allegations must be enough to raise a right to relief above
the speculative level,” id. at 555 (citation omitted), and
present claims that are “plausible on [their] face,” id. at
570. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). A complaint that
“pleads facts that are ‘merely consistent with’ a defendant's
liability” generally does not meet the pleading standard. See
id. (quoting Twombly, 550 U.S. at 557). However, complaints
by pro se parties must receive a more liberal construction than
those filed by attorneys. See Erickson v. Pardus, 551 U.S.
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89, 94 (2007). As such, this Court “must construe [a pro se
complaint] broadly, and interpret [it] to raise the strongest
arguments that [it] suggests.” Weixel v. Bd. of Educ., 287 F.3d
138, 146 (2d Cir. 2002) (citation omitted).
B. Plaintiff's Objections
*2 As an initial matter, Plaintiff's objections state that “[t]he
report is not completely accurate and it sounds like I'm being
made out to be someone just doing this for monetary gain.”
Dkt. No. 6 at 1. “This bare statement, devoid of any reference
to specific findings or recommendations to which [Plaintiff]
object[s] and why, and unsupported by legal authority,” is
not a cognizable objection to Magistrate Judge Lovric's R&R.
Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002).
Plaintiff also asserts nine numbered points. First, Plaintiff
states that he has seen “cameras in both Sandford [sic] street
school and SAEC BOCES,” and that “[t]hey know what
happen[ed] at sandford [sic] street to be factual.” Dkt. No.
6 at 1. Plaintiff also contends that he believes Defendant
is “in violation of Title IX[,] FAFSA, CEP (Community
Eligibility Provision), Direct Student Loans, Pell Grants,
Workforce Investment [Act], SEOG, others, they accept
federal funding.” Id. Also, within point one, Plaintiff states
that his “SA [which the Court understands to mean “sexual
assault”] was reported to HR to investigate. Kate A, told me
to not tell anyone or I can be punished up to termination for
breach of confidentiality.” Id. Second, Plaintiff argues that the
R&R “assumes the Blake incident was related to the Sanford
Street incident's, for me. No, the Blake incident was part of the
hostile workplace claim.” 1 Id. Third, Plaintiff reiterates his
allegations regarding his lung infection diagnosis, allegedly
caused by harmful debris and aromatics used by teachers
within the school. See id. Fourth, Plaintiff states he was “not
happy with the change in hours and what not.” Id. at 1-2. Fifth,
Plaintiff adds allegations that there is an elderly woman who
works at the Sanford Street school who is treated in a manner
with which Plaintiff disagrees. See id. at 2. Sixth, Plaintiff
reiterates that he was subject to a hostile work environment
due to Defendant's failure to resolve his complaints, adding
that the duration of his suffering was sixty-six days. See id.
Seventh, Plaintiff makes additional allegations about a gym
teacher using aerosol sprays and someone manipulating the
air conditioners where he worked, apparently in a conspiracy
against him. See id. Eighth, Plaintiff adds that the areas where
he worked were not properly ventilated and that an employee
of Defendant recorded him wearing plastic around his shoes
while Plaintiff performed lawn care. See id. In his ninth and
final objection, Plaintiff mentions an incident where his hand
was jammed between a refrigerator and a doorway, causing
an injury to his left pinky finger. See id. This incident was not
mentioned in the complaint. See id.; see generally Dkt. No. 1.
*3 Points five, seven, eight, nine, and part of point one add
new information that was not before Magistrate Judge Lovric
at the time of his decision. See Dkt. Nos. 1, 6. Although it is
“conceivable” that some of these new factual allegations may
correct the pleading defects identified by Magistrate Judge
Lovric, the proper place for the addition of factual allegations
“is in an amended complaint ....” Syfert v. City of Rome,
No. 6:17-CV-0578, 2017 WL 5195230, *3 (N.D.N.Y. Nov. 9,
2017) (“[S]pecial solicitude is not a license to piece together
an actionable pleading through a prolix complaint and a prolix
objection to a report-recommendation, especially when the
product contains a shotgun spray of factual allegations that
a defendant must (somehow) admit or deny under Fed. R.
Civ. P. 8(b)(1)(B)”). Moreover, points one, three, four, and six
“merely recite the same arguments presented to the magistrate
judge,” and therefore do not constitute proper objections.
O'Diah, 2011 WL 933846, at *1.
In sum, most of Plaintiff's objections merely reiterate, bolster,
or add to the allegations contained in the complaint. See Dkt.
No. 6. Each objection also fails to contest specific portions of
the R&R. See id. Indeed, Plaintiff does not contest Magistrate
Judge Lovric's application of the law and has not raised
any particularized objections to the R&R's findings. See id.
Accordingly, the Court reviews the R&R for clear error. 2
C. Title VII
As an overarching matter with respect to Plaintiff's Title VII
claims, the Court agrees with Magistrate Judge Lovric that,
because the complaint alleges that Plaintiff filed charges with
the EEOC on or about April 12, 2024, see Dkt. No. 1 at
5, discrete adverse actions occurring before June 17, 2023
are time-barred, see Dkt. No. 5 at 7. The Second Circuit
has recognized that “[u]nder Title VII, plaintiffs must file a
charge with the EEOC ‘within 180 [days] or, in states like
New York that have local administrative mechanisms for
pursuing discrimination claims, 300 days “after the alleged
unlawful employment practice occurred.” ’ ” King v. Aramark
Servs. Inc, 96 F.4th 546, 559 (2d Cir. 2024) (quoting Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 78-79 (2d Cir.
2015)).
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1. Title VII Retaliation
On the Title VII retaliation claim, Magistrate Judge Lovric
correctly noted that the alleged threat of termination (as
opposed to the termination itself) if Plaintiff told anyone about
the Boris incident allegedly took place around December
2022. Dkt. No. 1 at 3; see Dkt. No. 5 at 8-9. Thus, on that
basis, the retaliation claim is time-barred under the 300-day
requirement imposed by Title VII.
To the extent that Plaintiff's Title VII retaliation claim is
premised on his alleged termination in October 2023, the
Court agrees with Magistrate Judge Lovric that the complaint
fails to allege a causal connection between any protected
activity and Plaintiff's termination. See Dkt. No. 5 at 9-10.
Title VII retaliation plaintiffs must prove but-for causation,
and can “meet this burden by ‘showing that the protected
activity [against which the defendant allegedly retaliated] was
followed closely by discriminatory treatment ....’ ” Guerrero
v. Albany Med. Health Sys., No. 1:24-cv-01344, 2025 WL
2645540, *12 (N.D.N.Y. Sept. 15, 2025) (quoting Bader v.
Special Metals Corp., 985 F. Supp. 2d 291, 324 (2d Cir.
2013)). “In general, a temporal gap of less than two months
is sufficient to give rise to an inference of causation.” Bader,
985 F. Supp. 2d at 324. Here, the facts alleged in the complaint
do not support such an inference. Indeed, the ten-month gap
between Plaintiff's alleged protected activity in December
2022 and the alleged adverse action of Plaintiff's termination
in October 2023, without allegations that plausibly suggest
retaliatory animus, is too attenuated to support a retaliation
claim. Thus, Magistrate Judge Lovric correctly concluded
that Plaintiff failed to allege facts that plausibly suggest
Defendant terminated Plaintiff in retaliation for his report
about Boris. See Dkt. No. 5 at 10.
*4 To the extent Plaintiff premises his Title VII retaliation
claim on inaccurate negative evaluations, assignment to
less favorable tasks, assignment of additional duties, and a
change in the hours he was assigned to work, the Court
agrees with Magistrate Judge Lovric that a response from
Defendant is warranted. To properly plead a retaliation
claim in the Second Circuit, Plaintiff must allege: “(1) ‘[he]
participated in an activity protected by Title VII’ ...; (2) the
employer knew about [his] participation; (3) ‘the employer
“subjected [him] to a materially adverse” action thereafter’;
and (4) ‘a “causal connection” existed between the “protected
activity” and the adverse action.’ ” Guerrero, 2025 WL
2645540, at *10 (quoting Moll v. Telesector Res. Grp., Inc.,
94 F.4th 218, 239 (2d Cir. 2024)). As Magistrate Judge
Lovric pointed out, Plaintiff's alleged protected activity was
his report of Boris's behavior. Likewise, Plaintiff alleges
Defendant's knowledge of that activity because he made
the report to a designated HR representative. Furthermore,
the Court agrees with Magistrate Judge Lovric that the
purported negative evaluations, unfavorable assignments, and
undesirable change in work hours plausibly rise to the level
of materially adverse actions. Dkt. No. 5 at 10-11; see
also Feingold v. New York, 366 F.3d 138, 152 (2d Cir.
2004) (citation omitted) (identifying termination, demotion,
“a less distinguished title,” “material loss of benefits,”
and “significantly diminished material responsibilities” as
adverse employment actions). Finally, as Magistrate Judge
Lovric stated, the complaint alleges that Defendant subjected
Plaintiff to the adverse employment actions because he
exercised his rights. Dkt. No. 5 at 11 (citing Dkt. No. 1 at
13). Thus, in light of Plaintiff's pro se status, the Court directs
Defendant to respond to this portion of Plaintiff's Title VII
retaliation claim.
2. Title VII Discrimination
The Court agrees with Magistrate Judge Lovric that the
complaint fails to adequately allege Title VII discrimination.
See Dkt. No. 5 at 11-13. “[A]t the pleadings stage of an
employment discrimination case, a plaintiff has a ‘minimal
burden’ of alleging facts ‘suggesting an inference of
discriminatory motivation.’ ” Vega, 801 F.3d at 85 (quoting
Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir.
2015)). Thus, a plaintiff must plead that an employer has
discriminated against him by taking an adverse employment
action, and that such action was “because of his race, color,
religion, sex, or national origin.” Id. Importantly, “Title VII
discrimination claims do not require a showing of but-for
causation. Rather, a plaintiff's claim can survive if [he]
pleads facts suggesting that [his] membership in a protected
class was simply a motivating factor behind the alleged
discriminatory conduct.” Guerrero, 2025 WL 2645540, at *8
(citing Vega, 801 F.3d at 85-86; 42 U.S.C. § 2000e-2(m)).
As Magistrate Judge Lovric pointed out, liberally construed,
the complaint does allege that Plaintiff faced materially
adverse employment actions. See Dkt. No. 1 at 2. However,
none of the facts alleged in the complaint suggest that “the
adverse employment decision[s] [were] motivated at least
in part by an ‘impermissible reason,’ i.e., a discriminatory
reason.” Vega, 801 F.3d at 87 (citations omitted). Thus, the
Court agrees with Magistrate Judge Lovric that nothing in the
complaint supports an inference that Plaintiff's sex motivated
his reassignment to less favorable tasks, changes in his hours,
or other adverse actions against him in any way. Therefore,
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Plaintiff fails to state a Title VII discrimination claim, and this
cause of action is dismissed.
3. Title VII Hostile Work Environment
The Court further concludes that Magistrate Judge Lovric
appropriately determined the complaint fails to adequately
allege a hostile work environment claim under Title VII.
See Dkt. No. 5 at 13-14. To plead a Title VII hostile
work environment claim, “a plaintiff must plead facts that
would tend to show that the complained of conduct: (1)
‘is objectively severe or pervasive—that is, ... creates an
environment that a reasonable person would find hostile
or abusive’; (2) creates an environment ‘that the plaintiff
subjectively perceives as hostile or abusive’; and (3) ‘creates
such an environment because of the plaintiff's [protected class
membership].’ ” Patane v. Clark, 508 F.3d 106, 113 (2d Cir.
2007) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir.
2001)).
Even assuming that the first two elements are met, Magistrate
Judge Lovric is correct that Plaintiff fails to show how
any of the hostile conditions he allegedly experienced were
inflicted because of his sex or other protected characteristic.
See Dkt. No. 5 at 13-14. Furthermore, even if Plaintiff's
interaction with Boris in December 2022 rises to the level of
sexual harassment and a possible hostile work environment,
Magistrate Judge Lovric is correct that Plaintiff fails to allege
any facts suggesting he filed his EEOC charge within 300
days of that incident. Id. at 14. Therefore, Plaintiff's Title VII
hostile work environment claim is dismissed.
D. ADA
*5 The Court agrees with Magistrate Judge Lovric that
Plaintiff's complaint fails to state an ADA claim upon which
relief can be granted. See id. at 17. To state a prima facie case
under the ADA, Plaintiff must allege: “(1) his employer is
subject to the ADA; (2) he was disabled within the meaning
of the ADA; (3) he was otherwise qualified to perform the
essential functions of his job, with or without reasonable
accommodation; and (4) he suffered adverse employment
action because of his disability.” Giordano v. City of New
York, 274 F.3d 740, 747 (2d Cir. 2001) (citation omitted).
Furthermore, the Second Circuit has made clear that ADA
claims use a but-for causation standard. Natofsky v. City of
New York, 921 F.3d 337, 348 (2d Cir. 2019).
As Magistrate Judge Lovric correctly pointed out, even
assuming that Plaintiff's employer is subject to the ADA,
Plaintiff's “workplace asthma” is a disability within the
meaning of the ADA, and that he was otherwise qualified to
perform the essential functions of his job, the complaint fails
at the causation element. See Dkt. No. 5 at 16. Magistrate
Judge Lovric properly considered Plaintiff's complaint and
correctly decided that “Plaintiff fails to allege facts plausibly
suggesting an inference of discrimination on the basis of his
disability.” Id. The Court therefore agrees with Magistrate
Judge Lovric that Plaintiff has not stated a claim for
discrimination under the ADA, and this claim is dismissed.
E. OSHA
Magistrate Judge Lovric also properly determined that
Plaintiff does not have standing to sue his employer under the
Occupational Safety and Health Act. See id. at 17. “Under
OSHA, employees do not have a private right of action.”
Donovan v. Occupational Safety & Health Rev. Comm'n, 713
F.2d 918, 926 (2d Cir. 1983) (citations omitted). Therefore,
Plaintiff's OSHA claim is dismissed with prejudice.
F. FLSA Retaliation
The Court agrees with Magistrate Judge Lovric's conclusion
that Plaintiff's FLSA retaliation claim warrants a response.
See Dkt. No. 5 at 18. As Magistrate Judge Lovric pointed
out, “a plaintiff alleging retaliation under [the] FLSA must ...
show[ ] (1) participation in protected activity known to the
defendant ...; (2) an employment action disadvantaging the
plaintiff; and (3) a causal connection between the protected
activity and the adverse employment action.” Mullins v. City
of New York, 626 F.3d 47, 53 (2d Cir. 2010) (citation omitted).
As with Title VII retaliation, a causal connection can be
established through a showing of temporal proximity between
the protected activity and the adverse employment action. See
id. (citation omitted).
Magistrate Judge Lovric is correct that the complaint may be
read liberally to allege that Plaintiff reported unsafe working
conditions and that he was subject to adverse employment
actions soon thereafter. See Dkt. No. 5 at 18 (citing Dkt.
No. 1 at 13). Accordingly, in light of Plaintiff's pro se
status, the Court sees no clear error in Magistrate Judge
Lovric's recommendations on this cause of action. Defendant
is ordered to file a response to Plaintiff's FLSA claim.
G. NYSHRL
Lastly, Magistrate Judge Lovric correctly recommended
dismissal of Plaintiff's claim pursuant to the New York State
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Human Rights Law, since Plaintiff does not allege that he
complied with the statutory notice of claim requirements. See
id. at 18-20. New York Education Law § 3813(1) requires that
a notice of claim be served on the governing body of a board
of cooperative educational services (“BOCES”) within three
months of accrual as a condition precedent to suit against that
BOCES. See N.Y. Educ. Law § 3813(1). Although an EEOC
charge may “satisfy the notice of claim requirement” if it puts
the defendant on adequate notice of the plaintiff's allegations,
Bernheim v. N.Y.C. Dep't of Educ., No. 19-CV-9723, 2020
WL 3865119, *6 (S.D.N.Y. July 9, 2020), Magistrate Judge
Lovric correctly noted that Plaintiff's civil complaint fails to
allege that the EEOC charge put Defendant's governing body
on notice within the statutory timeframe. See Dkt. No. 5 at
19-20. Therefore, this claim is dismissed.
IV. CONCLUSION
*6 After carefully reviewing the entire record in this matter,
the parties’ submissions, and the applicable law, and for the
reasons set forth above, the Court hereby
ORDERS that Magistrate Judge Lovric's Order and Report-
Recommendation (Dkt. No. 5) is ADOPTED in its entirety;
and the Court further
ORDERS that Plaintiff's claim pursuant to OSHA is
DISMISSED with prejudice and without leave to replead;
and the Court further
ORDERS that Plaintiff's Title VII discrimination claim, Title
VII hostile work environment claim, Title VII retaliation
claim based on his termination, ADA claim, and NYSHRL
claim are DISMISSED without prejudice and with leave to
replead; and the Court further
ORDERS that the Clerk of the Court shall issue a summons
and forward it with a copy of the complaint and this
Memorandum-Decision and Order to the United States
Marshal for service; and the Court further
ORDERS that Defendant file a response to: (1) Plaintiff's
Title VII retaliation claim based on inaccurate negative
evaluations, assignment to less favorable tasks, assignment of
additional duties, and a change in the hours he was assigned
to work; and (2) Plaintiff's FLSA retaliation claim; and the
Court further
ORDERS that the Clerk of the Court shall serve a copy of this
Memorandum-Decision and Order on Plaintiff in accordance
with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 3718639
Footnotes
1 Although this objection could be read as a specific objection to a portion of the R&R, and does not merely
repeat the allegations in the complaint or improperly assert new allegations, Plaintiff misconstrues Magistrate
Judge Lovric's analysis. Magistrate Judge Lovric explained that the complaint alleges Plaintiff was terminated
in October 2023 because “he informed Nate G. that Blake S. filed for overtime to complete work that Nate
G. actually completed[,]” Dkt. No. 5 at 9, and the complaint fails to allege that the termination was based on
any opposition to discrimination and is too attenuated from the December 2022 report of sexual harassment
to draw an inference of causation, see id. at 9-10.
2 Plaintiff has also submitted six attachments to his objections, which contain pictures, purported witness
statements, text messages, and emails. See Dkt. Nos. 6-1 to 6-6. Plaintiff cannot bolster his allegations with
exhibits that were not part of the record presented to Magistrate Judge Lovric; therefore, the Court declines
to consider these exhibits. See Kelsey v. Kessel, No. 1:21-CV-0911, 2021 WL 5277195, *4 n.4 (N.D.N.Y.
Nov. 12, 2021) (citation omitted).
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2025 WL 2380403
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Adriana NOKAJ, et al., Plaintiffs,
v.
PAPPAS NEW YORK, et al., Defendants.
24-CV-01076 (MMG)
|
Signed August 15, 2025
Attorneys and Law Firms
Emre Polat, Emre Polat, PLLC, New York, NY, for Plaintiffs.
Alan Avery Heller, Jeanne Claire Barenholtz, Foster Garvey
P.C., New York, NY, for Defendants Pappas New York,
Pappas OG, LLC, Danielle Jimenez Marine.
Sarah Michal Matz, Adelman Matz P.C., New York, NY,
Barry Maxwell Golden, Pitcoff Law Group, PC, New York,
NY, for Defendants Dream Hospitality Group, LLC, George
Karavias.
Saul Fellus, Law Office of Saul Fellus, Brooklyn, NY, for
Defendants Joseph Licul, Dennis Turcinovic.
OPINION & ORDER
MARGARET M. GARNETT, United States District Judge:
INTRODUCTION
*1 Plaintiffs bring this purported collective and class
action against their former employers, asserting claims for:
unpaid minimum wage under the Fair Labor Standards Act
(“FLSA”) and New York Labor Law (“NYLL”) (Counts I
and IV); unpaid overtime under FLSA and NYLL (Counts
II and V); retaliation under FLSA and NYLL (Counts III
and VIII); unpaid spread-of-hours premiums under NYLL
(Count VI); misappropriated gratuities under NYLL (Count
VII); untimely wage payments under NYLL (Count IX);
nonpayment of wages under NYLL (Count X); civil damages
for fraudulent filing of information returns under 26 U.S.C.
§ 7434(a) (Count XI); discrimination under New York
State Human Rights Law (“NYSHRL”) and New York City
Human Rights Law (“NYCHRL”) (Counts XII and XIV);
and retaliation under NYSHRL and NYCHRL (Counts XIII
and XV). Individual Defendants Joseph Licul and Dennis
Turcinovic move to dismiss all claims against them pursuant
to Federal Rule of Civil Procedure 12(b)(6). For the reasons
that follow, the Court dismisses the claims under NYSHRL,
NYCHRL, and 26 U.S.C. § 7434(a) as to only Licul and
Turcinovic, and otherwise denies the motion to dismiss.
BACKGROUND
I. FACTUAL BACKGROUND 1
Plaintiffs comprise servers, cooks, bartenders, barbacks, and
other workers formerly employed at Pappas New York
(“Pappas”), a restaurant owned and operated by Defendants.
AC ¶¶ 77–79. They allege that Defendants regularly required
them to perform unpaid work before and after their scheduled
shifts and required them to undergo a period of unpaid
training. Id. ¶¶ 82–83. Although Plaintiffs worked over 40
hours per week, Defendants failed to pay them overtime
premiums. Id. ¶ 255. Additionally, Defendants failed to pay
Plaintiffs minimum wage, failed to pay Plaintiffs spread-of-
hour premiums; paid Plaintiffs late; failed to provide Plaintiffs
with proper wage notices and accurate wage statements;
and failed to maintain proper time and payroll records. Id.
¶¶ 256–59. During the course of their employment, which
began around February 2023, certain Plaintiffs complained
about being improperly paid and not receiving appropriate
compensation for their hours worked. Id. ¶¶ 79, 120, 196,
219, 230, 241, 251–52. Plaintiffs, who are predominantly
of Albanian origin, also allege they were subjected to
discriminatory comments and threats based on their national
origin. Id. ¶¶ 262–63. Around December 17, 2023, all
Plaintiffs were fired from Pappas, while the restaurant
retained all non-Albanian workers. Id. ¶ 263.
II. PROCEDURAL HISTORY
*2 Plaintiffs filed an initial Complaint on February 14, 2024,
Dkt. No. 1, which they amended on May 10, 2024, Dkt. No.
24. Defendants Pappas OG, LLC; Pappas New York; and
Danielle Jimenez Marine answered on June 10, 2024, denying
Plaintiffs’ substantive allegations and asserting cross claims
for contribution and indemnity against Defendants Dream
Hospitably Group, LLC; George Karavias; Joseph Licul;
and Dennis Turcinovic. Dkt. No. 27. Defendants Licul and
Turcinovic filed a motion to dismiss the Amended Complaint
on August 5, 2024. Dkt. No. 41 (“Motion”). On September 17,
2024, Plaintiffs filed a response, Dkt. No. 46 (“Opposition”),
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and Licul and Turcinovic filed a reply on September 24, 2024,
Dkt. No. 49 (“Reply”).
DISCUSSION
Licul and Turcinovic argue that the Court should dismiss
all fifteen counts against them for failure to state a claim.
They assert that the Amended Complaint lacks specificity and
merely makes conclusory allegations or general allegations
that do not provide necessary detail or identify actions taken
by particular individuals. See generally Motion. Relatedly,
they assert that the Amended Complaint fails to allege that
Licul and Turcinovic specifically, as individuals, are liable for
any of the alleged violations. See id. at 1–2.
I. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A complaint is properly dismissed where, as a
matter of law, “the allegations in a complaint, however true,
could not raise a claim of entitlement to relief.” Twombly,
550 U.S. at 558. When resolving a motion to dismiss, the
Court must assume all well-pleaded facts to be true, “drawing
all reasonable inferences in favor of the plaintiff.” Koch
v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
That tenet, however, does not apply to legal conclusions. See
Iqbal, 556 U.S. at 678. Pleadings that offer only “labels and
conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555.
II. FLSA AND NYLL CLAIMS
The Amended Complaint plausibly states a claim for every
cause of action brought under FLSA and NYLL because
Plaintiffs adequately allege both the substantive elements of
those violations and that Licul and Turcinovic may be held
liable for the violations as Plaintiffs’ employers.
A. Individual Liability
As an initial matter, Licul and Turcinovic may be held
individually liable for the FLSA and NYLL violations alleged
in the Amended Complaint—even where Plaintiffs do not
specify actions taken individually by Licul and Turcinovic
that caused the violations—because the Amended Complaint
properly alleges that they exercised sufficient control to
qualify as employers under both statutes.
“[T]he FLSA permits ‘an individual within a company that ...
employs a worker [to be held] personally liable for damages
as that worker's employer.’ ” Inclan v. New York Hosp. Grp.,
Inc., 95 F. Supp. 3d 490, 507 (S.D.N.Y. 2015) (internal
quotation marks omitted) (quoting Irizarry v. Catsimatidis,
722 F.3d 99, 105 (2d Cir. 2013)). FLSA defines an employer
as “any person acting directly or indirectly in the interest
of an employer in relation to an employee.” 29 U.S.C. §
203(d). The Second Circuit has directed courts to evaluate
employee-employer relationships “on a case-by-case basis
by review of the totality of the circumstances,” and has
“identified different sets of relevant factors based on the
factual challenges posed by particular cases” to guide this
inquiry. Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp.
2d. 253, 308 (S.D.N.Y. 2011) (internal quotation marks
omitted) (quoting Barfield v. New York City Health & Hosps.
Corp., 537 F.3d 132, 141–42 (2d Cir. 2008)). Looking to
these factors, “[i]n its narrowest form, this analysis evaluates
whether an alleged employer exercised formal control, and
at its broadest it evaluates functional control.” Hsieh Liang
Yeh v. Han Dynasty, Inc., No. 18-CV-06018 (PAE), 2019
WL 633355, at *5 (S.D.N.Y. Feb. 14, 2019). Therefore, “the
exercise of formal control over employees is sufficient, but
not necessary, to adequately allege an employer relationship.”
Id. (internal quotation marks omitted) (quoting Xiaoyan Liu
v. Canteen 82 Inc., No. 17-CV-07862 (KPF), 2018 WL
6067228, at *5 (S.D.N.Y. Nov. 20, 2018)).
*3 Courts consider four factors to determine whether
someone is an employer on a theory of formal control:
“whether the alleged employer (1) had the power to hire
and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment,
(3) determined the rate and method of payment, and (4)
maintained employment records.” Carter v. Dutchess Cmty.
Coll., 735 F.2d 8, 12 (2d Cir. 1984) (internal quotation marks
and citation omitted). “The statutory standard for employer
status under the NYLL is nearly identical to that of the
FLSA,” and as a result, “district courts in this Circuit have
consistently interpreted the definition of ‘employer’ under the
New York Labor Law coextensively with the definition used
by the FLSA.” Williams v. Epic Sec. Grp., 358 F. Supp. 3d
284, 305 (S.D.N.Y. 2019) (internal references omitted).
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The Amended Complaint alleges that Licul and Turcinovic
were directors and owners of Pappas who “exercised control
over the employment terms and conditions of Plaintiffs and
exercised the power and authority to (i) fire and hire [and]
(ii) determine the rate and method of pay....” AC ¶¶ 56–60,
66–70. In then motion to dismiss, Licul and Turcinovic do
not argue that the Amended Complaint fails to allege formal
control. Indeed, they appear to admit that they had managerial
authority over the restaurant. See Motion at 1 (“Defendants
Joseph Licul and Dennis Turcinovic took over management
of Pappas on or about April 2023 and left on December
2023.”). Nothing more is required at this stage of the case.
Accordingly, the Court finds that the Amended Complaint
sufficiently alleges that Licul and Turcinovic are employers
who can be subject to liability under both FLSA and NYLL.
B. Minimum Wage, Overtime, and Spread-of-Hours
Claims
Turning to the substance of the allegations, the Amended
Complaint sufficiently pleads facts to state minimum wage,
overtime, and spread-of-hours claims under both FLSA and
NYLL, which can properly be brought against Licul and
Turcinovic for the reasons stated above. Under both statutes,
covered employees are required to be paid certain minimum
wage rates and compensated at an overtime rate of one-and-
one-half times then regular hourly pay for time worked in
excess of 40 hours in a week. See 29 U.S.C. §§ 206, 207(a)(1);
NYLL § 663(1); 12 NYCRR § 146-1.4. In addition, NYLL
requires that employers pay covered employees one extra
hour of compensation, at the basic minimum wage rate, for
each day on which the “spread of hours exceeds 10 hours” or
where there is a split shift. 12 NYCRR § 146-1.6.
“To state a FLSA minimum wage claim, a plaintiff must
allege hours worked for which he or she did not receive a
minimum wage.” Hernandez v. Spring Rest Grp., LLC, No.
17-CV-06084 (AJN), 2018 WL 3962832, at *3 (S.D.N.Y.
Aug. 17, 2018). “[T]o state a plausible FLSA overtime claim,
a plaintiff must sufficiently allege 40 hours of work in a given
workweek as well as some uncompensated time in excess
of the 40 hours.” Lundy v. Cath. Health Sys. of Long Island
Inc., 711 F.3d 106, 114 (2d Cir. 2013). “Courts apply the
same analysis for FLSA and NYLL wage and hour violations,
except that the NYLL does not require plaintiffs to show a
nexus with interstate commerce or a minimum amount of
annual sales.” Tackie v. Keff Enters. LLC, No. 14-CV-02074
(JPO), 2014 WL 4626229, at *2 n.2 (S.D.N.Y. Sept. 16, 2014)
(citing Alvarez v. Michael Anthony George Const. Corp., 15
F. Supp. 3d 285, 291 (E.D.N.Y. 2014)). To state a NYLL
spread-of-hours claim, a plaintiff must allege that he or she
worked “more than ten hours per day ... and [was] not paid
an additional hour at the minimum wage rate for days in
which [he or she] worked [ten] or more hours.” Nguyen
v. Pho Vietnam 87 Corp., No. 23-CV-04298 (JLR) (VF),
2025 WL 564546, at *4 (S.D.N.Y. Jan. 31, 2025) (quotation
omitted), report and recommendation adopted, 2025 WL
562763 (S.D.N.Y. Feb. 19, 2025).
*4 Plaintiffs have met their burden here because
the Amended Complaint specifies each plaintiff's work
schedules, alleging that they worked over 40 hours per week
without receiving an overtime premium, that they worked
at least ten hours on some days without receiving a spread-
of-hours-premium, and that they were uncompensated for
some hours such that their hourly pay fell below the required
minimum. See Anderson v. Hudson Nat'l Golf Club, Inc., No.
23-CV-00522 (KMK), 2024 WL 4241359, at *12 (S.D.N.Y.
Sept. 19, 2024) (“Plaintiffs have plausibly alleged unpaid-
overtime claims because they have averred that their regularly
scheduled workweek[s] ... included more than forty hours of
work.”) (internal references omitted); id. at *7 (“To state a
plausible minimum wage claim, ‘it is sufficient for a plaintiff
to allege facts about [his or] her salary and working hours,
such that a simple arithmetical calculation can be used to
determine the amount owed per pay period.’ ”) (quoting Su
v. Advanced Care Staffing, LLC, 733 F. Supp. 3d 119, 131
(E.D.N.Y. 2024)).
Contrary to Defendants’ argument, the specificity of the
Amended Complaint's allegations is sufficient for Plaintiffs’
claims to survive a motion to dismiss. See Huerta v.
J.D. Workforce, Inc., No. 23-CV-05382 (KMK), 2025 WL
674329, at *6 (S.D.N.Y. Mar. 3, 2025) (“[T]he Second Circuit
recently clarified that ‘[s]o long as the complaint adequately
alleges that .... each [plaintiff] worked more than forty hours
each week they were employed ... that is enough to state
a claim under the FLSA and defeat a motion to dismiss.”)
(quoting Herrera v. Comme des Garcons, Ltd., 84 F.4th 110,
112 (2d Cir. 2023)); Bachayeva v. Americare Certified Special
Servs., Inc., No. 12-CV-01466 (RRM), 2013 WL 1171741, at
*6 (E.D.N.Y. Mar. 20, 2013) (“The burden placed on plaintiffs
is not an onerous one. They are not required to state every
single instance of overtime work or to state the exact amount
of pay which they are owed; instead, they are only required to
provide some approximation of the overtime hours that they
worked.”) (quotations omitted).
C. Non-payment and Untimely Payment Claims
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NYLL requires that a “manual worker shall be paid weekly
and not later than seven calendar days after the end of the
week in which the wages are earned,” NYLL § 191, and
affords a private right of action to employees who are not
timely paid, see Zachary v. BG Retail, LLC, 716 F. Supp. 3d
339, 347 (S.D.N.Y. 2024). Along similar lines, NYLL permits
employees to recover wages that are not paid at all. NYLL §
198. The Court readily concludes that Plaintiffs have stated a
claim under each provision by alleging that Defendants paid
Plaintiffs every two to three weeks and that Defendants failed
to pay Plaintiffs for work provided during training weeks. See,
e.g., AC ¶¶ 83, 87, 93, 97, 101, 109.
D. Misappropriated Gratuities
Under NYLL, “[n]o employer ... shall ... retain any part
of a gratuity or of any charge purported to be a gratuity
for an employee.” NYLL § 196-d. Section 196-d applies
to managers and employees with “meaningful or significant
authority or control over subordinates” who are ineligible to
share in tips. Salinas v. Starjem Rest. Corp., 123 F. Supp. 3d
442, 465 (S.D.N.Y. 2015) (quoting Barenboim v. Starbucks
Corp., 21 N.Y.3d 460, 473 (2013)). Although the Amended
Complaint does not specifically identify Licul and Turcinovic
as having individually misappropriated gratuities, it does
allege that all Defendants failed to provide Plaintiffs with
the tips they earned. See, e.g., AC ¶¶ 130, 191. Given the
Amended Complaint's allegations pertaining to Licul and
Turcinovic's managerial control of Pappas, the Court finds it
proper at this stage to allow Plaintiffs’ Section 196-d claim to
proceed against all Defendants. See supra § II(A).
E. Retaliation
FLSA provides that it is “unlawful for any person ... to
discharge or in any other manner discriminate against any
employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under
[FLSA].” 29 U.S.C. § 215(a)(3). Similarly, NYLL provides
that an employer shall not “discharge, threaten, penalize, or
in any other manner discriminate or retaliate against any
employee ... because such employee has made a complaint ...
that the employer has engaged in conduct that the employee,
reasonably and in good faith, believes violates [NYLL].”
NYLL § 215(1)(a)(i). FLSA and NYLL retaliation claims
are governed by the same standard. Santi v. Hot in Here,
Inc., No. 18-CV-03028 (ER), 2019 WL 290145, at *4
(S.D.N.Y. Jan. 22, 2019). A plaintiff alleging retaliation under
FLSA and NYLL must plead facts showing a prima facie
case of retaliation, namely: “(1) participation in protected
activity known to the defendant; (2) an employment action
disadvantaging the plaintiff; and (3) a causal connection
between the protected activity and the adverse employment
action.” See Mullins v. City of New York, 626 F.3d 47, 53–54
(2d Cir. 2010).
*5 Plaintiffs have adequately pled all three elements. First,
the Amended Complaint alleges that Plaintiffs participated
in protected activity by complaining about being improperly
paid and not receiving appropriate compensation. AC ¶ 273;
see also Greathouse v. JHS Sec. Inc., 784 F.3d 105, 107
(2d Cir. 2015) (holding that oral and written complaints to
supervisors may constitute protected activity so long as the
complaint is “sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and context,
as an assertion of rights protected by the statute and a call
for their protection.”) (internal references omitted). Second,
the Amended Complaint alleges that Plaintiffs suffered an
adverse employment action because they were terminated.
AC ¶ 274. Thud, a causal connection between the complaints
and the terminations is specifically alleged and readily
inferred by close temporal proximity. See, e.g., AC ¶¶ 230,
241, 251–52; see also Santi, 2019 WL 290145, at *5.
Accordingly, drawing all permissible inferences in favor of
Plaintiffs at this stage of the case, the Amended Complaint
states a claim for retaliation under FLSA and the NYLL, for
which Licul and Turcinovic can be held liable as employers.
III. CLAIM UNDER 26 U.S.C. § 7434
Plaintiffs assert a claim for civil damages for the fraudulent
filing of information returns under 26 U.S.C. § 7434. See
AC ¶¶ 304–06. That statute “provides a private right of
action for an individual who was the subject of a falsely filed
information return, allowing her to bring a civil action for
damages against ‘any person [who] willfully files a fraudulent
information return with respect to payments purported to be
made to’ the individual.” Rosario v. Fresh Smoothies LLC,
No. 20-CV-05831 (LJL), 2021 WL 5847633, at *6 (S.D.N.Y.
Dec. 9, 2021) (quoting 26 U.S.C. § 7434(a)). “To state a
claim under § 7434, ‘a plaintiff must allege facts to support
that: (1) the defendant issued an information return; (2) the
information return was fraudulent; and (3) the defendant
willfully issued the fraudulent information return.’ ” Castro
v. Hyper Structure Corp., No. 21-CV-01391 (ENV) (JRC),
2022 WL 2467242, at *8 (E.D.N.Y. March 7, 2022) (quoting
Munn v. APF Mgmt. Co., No. 19-CV-10791 (CS), 2020 WL
7264471, at *4 (S.D.N.Y. Dec. 10, 2020)); see also Katzman
v. Essex Waterfront Owners LLC, 660 F.3d 565, 568–69 (2d
Cir. 2011) (holding that willfulness is a required element
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of a claim under Section 7434). In their motion to dismiss,
Licul and Turcinovic argue that the Amended Complaint fails
to plead a Section 7434 claim with the requisite specificity.
See Motion at 5–6. The Court agrees because the Amended
Complaint does not plead any facts that suggest Licul and
Turcinovic acted willfully.
Although the Second Circuit has not defined the willfulness
requirement of a Section 7434 claim, and district courts in this
Circuit rarely address the issue, the Court agrees with Judge
Roman's conclusion in Wang v. Leo Chuliya, Ltd., consistent
with other tax code violations, that “Section 7434 requires
showing that a defendant voluntarily and intentionally
violated a legal duty.” No. 23-CV-02463 (NSR), 2024 WL
2221237, at *3 (S.D.N.Y. May 16, 2024). “Therefore, to
survive a motion to dismiss, a complaint must contain specific
allegations supporting a plausible inference that a defendant
voluntarily and intentionally filed a false information return.”
Id. The Amended Complaint alleges that Defendants failed
to provide Plaintiffs with accurate IRS forms, failed to report
all monies paid to Plaintiffs, and failed to properly report
monies withheld. AC ¶ 305. Based on those facts, Plaintiffs
allege in conclusory fashion that Defendants willfully filed
fraudulent information returns. That is not sufficient to plead
willfulness as to Licul and Turcinovic. Wang, 2024 WL
2221237, at *3 (“Plaintiff only conclusorily alleges that
‘Defendants willfully filed fraudulent information returns
with respect to payments purported to be made to Plaintiff,’
and that ‘[t]hese information returns falsely stated that taxable
income was received by Plaintiff and the [putative] Class in
the form of wages and/or tips that were never actually paid.’
”); see also In re Domino's Pizza Inc., No. 16-CV-06274
(AJN), 2018 WL 1587593, at *8 (S.D.N.Y. Mar. 27, 2018)
(dismissing Section 7434 claim where the “complaint [did]
not contain any details or factual allegations—other than the
alleged FLSA and NYLL violations—to support [a finding of
willfulness]”); Bao Guo Zhang v. Shun Lee Palace Rest., Inc.,
No. 17-CV-00840 (VSB), 2021 WL 634717, at *11 (S.D.N.Y.
Feb. 16, 2021) (holding that assertions that defendants failed
to keep accurate employment records and did not properly
compensate plaintiffs were “insufficient to plead a plausible
claim, much less a ‘willful’ filing of information returns”)
(quotation omitted). More than mere filing of inaccurate
returns is required to create a plausible inference that a
defendant acted willfully, such as, for example, an allegation
that the defendant accurately reported wages paid by check
but omitted wages paid in cash, see Collado v. Adolfo
Meat Mkt. Corp., No. 22-CV-09366 (JGLC), 2025 WL
588063, at *3 (S.D.N.Y. Feb. 24, 2025)). Here, the Amended
Complaint alleges nothing whatsoever with respect to Licul
and Turcinovic, much less with respect to their state of
mind, or the state of mind of any entity under their control.
Consequently, the Section 7434 claim is dismissed as to
Defendants Licul and Turcinovic.
IV. NYSHRL AND NYCHRL CLAIMS
*6 Plaintiffs bring claims for discrimination and retaliation
under both NYSHRL and NYCHRL. As with Plaintiffs’
other claims, Defendants Licul and Turcinovic object that the
Amended Complaint does not make specific allegations about
their conduct as individuals. Motion at 7–8. Plaintiffs respond
that Licul and Turcinovic can be held individually liable for
corporate violations of NYSHRL and NYCHRL based on
the same allegations that establish individual liability under
FLSA and NYLL. Opposition at 9. Plaintiffs are mistaken.
Licul and Turcinovic do not qualify as employers under
NYSHRL or NYCHRL, and the Amended Complaint does
not make allegations that otherwise state a NYSHRL or
NYCHRL claim based on their individual conduct.
A. Discrimination
1. NYSHRL
“NYSHRL permits liability for discrimination by employers
only.” Kulick v. Gordon Prop. Grp., LLC, No. 23-CV-09928
(KPF), 2025 WL 448333, at *9 (S.D.N.Y. Feb. 7, 2025)
(emphasis omitted); see also N.Y. Exec. Law § 296(1)
(a). Courts in this Circuit have routinely found that an
individual defendant may be liable for discrimination where
such individual is an “employer,” within the meaning of the
law. Lee v. Riverbay Corp., 751 F. Supp. 3d 259, 288–89
(S.D.N.Y. 2024). However, “[a]s the New York Court of
Appeals clarified in Doe v. Bloomberg L.P., 143 N.Y.S.3d
286, 292 (2021), where a corporate entity is the plaintiff's
employer, an individual affiliated with the entity cannot
himself qualify as the employer under the NYSHRL.” Doyle
v. Am. Glory Rest. Corp., No. 23-CV-07624 (PAE), 2024
WL 1466161, at *8 (S.D.N.Y. Apr. 4, 2024). Under Doe,
even “individual owners, officers, employees, or agents of
a business entity” are not considered “employers” under
NYSHRL. Harding v. Doriton Cap. Advisors LLC, 635 F.
Supp. 3d 286, 297 (S.D.N.Y. 2022); see also Bueno v.
Eurostars Hotel Co., No. 21-CV-00535 (JGK), 2022 WL
95026, at *7 (S.D.N.Y. Jan. 10, 2022) (“Under a recent
decision by the New York Court of Appeals, a corporate
employee—even its owner and CEO—no longer qualifies
as an ‘employer’ under [NYSHRL].”) Therefore, Licul and
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Turcinovic are not employers for purposes of the NYSHRL,
and the discrimination claims against them must be dismissed.
2. NYCHRL
The holding in Doe applies equally to a claim under
NYCHRL. See Kent-Friedman v. N.Y. State Ins. Fund, No. 18-
CV-04422 (VM), 2023 WL 6292693, at *8 (S.D.N.Y. Sept.
27, 2023) (“The Doe court ultimately held that the NYCHRL
should be interpreted like the NYHRL[.]”). However, “[i]n
contrast to the NYSHRL, the NYCHRL extends liability
to employees, not just employers, a feature of the statute
that Doe itself recognizes.” Nezaj v. PS450 Bar & Rest.,
719 F. Supp. 3d 318, 330 (S.D.N.Y. 2024). Therefore,
individuals may incur liability under NYCHRL for their
own personal discriminatory conduct. Id. But the Amended
Complaint alleges nothing regarding Licul's or Turcinovic's
own conduct, and the NYCHRL discrimination claim against
them must also be dismissed.
B. Retaliation
“The NYSHRL and NYCHRL both permit individual liability
of any person for retaliatory acts regardless of whether the
individual can be considered an employer,” so long as the
“individual defendant ... ‘actually participates in the conduct
giving rise to’ the plaintiff's retaliation claim.” Torres v.
N.Y. Methodist Hosp., No. 15-CV-01264 (PKC) (PK), 2016
WL 3561705, at *12 (E.D.N.Y. Jan. 7, 2016) (first quoting
N.Y. Exec. Law § 296(7); and then quoting Hozer v. Pratt
Indus. (USA), Inc., 10-CV-03874, 2012 WL 2049498, at
*1 n.1 (E.D.N.Y. June 6, 2012)); see also Harte v. Pace
Univ., No. 22-CV-03820 (ALC), 2024 WL 1348700, at
*7 (S.D.N.Y. Mar. 29, 2024) (“ ‘[I]ndividual employees
who actually participate[d] in the conduct giving rise to
plaintiff's retaliation claim’ may be held individually liable
under both the NYSHRL and NYCHRL.”) (quoting Schaper
v. Bronx Lebanon Hosp. Ctr., 408 F. Supp. 3d 379, 395
(S.D.N.Y. 2019)). But, again, the Amended Complaint does
not allege that Licul and Turcinovic personally participated
in any retaliatory conduct, so Plaintiffs have not stated a
claim against them for retaliation under either NYSHRL or
NYSCHRL.
CONCLUSION
*7 For the foregoing reasons, the motion to dismiss is
GRANTED IN PART and DENIED IN PART. Counts XI,
XII, XIII, XIV, and XV of the Amended Complaint are hereby
DISMISSED as to Defendants Licul and Turcinovic only. The
remaining claims against all Defendants remain.
All Citations
Slip Copy, 2025 WL 2380403
Footnotes
1 The Court draws the facts in this decision principally from the Amended Complaint, Dkt. No. 24 (“Amended
Complaint” or “AC”). See DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (“In considering a
motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts
alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by
reference in the complaint.”). For purposes of the motion to dismiss under Rule 12(b)(6), the Court accepts all
factual allegations in the Amended Complaint as true, drawing all reasonable inferences in Plaintiffs’ favor.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 11438085
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ted PERRY, Plaintiff,
v.
COUNTY OF WESTCHESTER, Defendant.
Case No. 06-CV-3000 (KMK)
|
Signed 03/31/2008
Attorneys and Law Firms
Pamela D. Hayes, Esq., Law Office of Pamela D. Hayes, Esq.,
New York, New York, Counsel for Plaintiff.
Stuart E. Kahan, Esq., Oxman Tulis Kirkpatrick Whyatt &
Geiger, LLP, White Plains, New York, Counsel for Defendant.
OPINION AND ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 On April 19, 2006, Plaintiff Ted Perry (“Plaintiff”)
filed this employment discrimination suit against Defendant
County of Westchester (“Defendant”). Before the Court
is Defendant's Motion for Summary Judgment, seeking
dismissal of Plaintiff's Complaint. For the reasons stated
herein, Defendant's Motion is GRANTED.
I. Background
A. Employment and Disciplinary History
The following facts are undisputed, except where indicated.
Plaintiff, an African-American man, began his employment
with Defendant in June 1988 as a seasonal laborer in the
Department of Parks Recreation and Conservation. (Def.'s
Revised Statement of Material Facts Pursuant to Local Civil
Rule 56.1(a) ¶¶ 1-2 (“Def.'s 56.1 Stmt”); Pl.'s Revised
Counter-Statement of Material Facts Pursuant to Local Rule
56.1(b) ¶¶ 1-2 (“Pl.'s 56.1 Stmt”).) Shortly thereafter, in
July 1988, Plaintiff was promoted to a full-time Maintenance
Laborer, Grade IV. (Def.'s 56.1 Stmt ¶ 3; Pl.'s 56.1 Stmt
¶ 3.) In 1992, Plaintiff was promoted to the position of
Maintenance Mechanic II, Grade VII. (Def.'s 56.1 Stmt ¶ 4;
Pl.'s 56.1 Stmt ¶ 4.)
Later, in 1993, Plaintiff's title was reclassified to the position
of Housekeeper, Grade VII. (Def.'s 56.1 Stmt ¶ 5; Pl.'s 56.1
Stmt ¶ 5.) The titles of two other employees – Roger Emery
(“Emery”) and John Ponce (“Ponce”), both of whom are
Caucasian – were also reclassified to Housekeeper, but, unlike
Plaintiff, these employees filed a union grievance regarding
this reclassification. (Def.'s 56.1 Stmt ¶¶ 6-7; Pl.'s 56.1 Stmt
¶¶ 6-7.) Emery and Ponce were successful in their grievance
and had their positions reclassified to Maintenance Mechanic.
(Def.'s 56.1 Stmt ¶ 8; Pl.'s 56.1 Stmt ¶ 8; Aff. of Stuart E.
Kahan, Ex. H (“Kahan Aff.”).)
In the fall of 1995, Plaintiff was suspended for approximately
sixty days without pay in connection with an altercation
between Plaintiff and a co-worker. (Def.'s 56.1 Stmt ¶¶ 9-12;
Pl.'s 56.1 Stmt ¶¶ 9-12; Kahan Aff., Ex. J.) Plaintiff was soon
thereafter reassigned to the Division of General Maintenance
in November 1995. (Def.'s 56.1 Stmt ¶ 13; Pl.'s 56.1 Stmt ¶
13.) Years later, in 2000, Plaintiff was reassigned to Croton
Point Park, and in 2001, Plaintiff was again reassigned to
the Bronx River Parkway Reservation, where he reported to
superintendent Robert Bates (“Bates”). (Def.'s 56.1 Stmt ¶¶
21-22; Pl.'s 56.1 Stmt ¶¶ 21-22.)
Plaintiff was issued a warning notice by Bates on May 14,
2002 for “refus[ing] to do the work assigned to him and
[for leaving the] work site without permission.” (Def.'s 56.1
Stmt ¶ 23; Pl.'s 56.1 Stmt ¶ 23.) On October 24, 2002, Bates
issued to Plaintiff another warning notice, citing Plaintiff
for “time abuse.” (Def.'s 56.1 Stmt ¶ 25; Pl.'s 56.1 Stmt ¶
25.) According to Plaintiff, on November 8, 2002, he missed
several hours of work to answer a jury summons in the
Bronx County Courthouse. (Def.'s 56.1 Stmt ¶ 26; Pl.'s 56.1
Stmt ¶ 26.) Plaintiff alleges that on the following work day,
November 12, 2002, Bates reprimanded Plaintiff for attending
jury duty and told him that his pay would be docked for the
time missed. (Def.'s 56.1 Stmt ¶ 27; Pl.'s 56.1 Stmt ¶ 27.) 1
Defendant claims that Plaintiff's time was never docked for
jury duty (Def.'s 56.1 Stmt ¶ 28), but Plaintiff insists that it
was (Decl. of Pl. Ted Perry in Opp'n to Def.'s Mot. for Summ.
J. ¶ 14 (“Pl.'s Decl.”) ). On November 25, 2002, Plaintiff was
issued another warning notice, this time for taking time off
on November 18, 2002, though he had already used up all
of his available time. (Kahan Aff., Ex. Y.) Plaintiff, however,
denies missing work on November 18, 2002, and insists
that this warning notice was actually for the time he missed
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attending jury duty. (Pl.'s Decl. ¶ 14.) Yet more warning
notices were issued to Plaintiff on December 30, 2002, for
failing to produce a driver's license, and on January 24, 2003
and January 27, 2003, for calling in sick with no sick leave
balance. (Kahan Aff, Ex. AA, BB.)
*2 On May 2, 2003, Plaintiff injured his back while working,
which he did not report until May 5, 2003. (Def.'s 56.1 Stmt
¶¶ 34-35; Pl.'s 56.1 Stmt ¶¶ 34-35.) Also on May 5, Plaintiff
was issued a warning notice for inappropriate conduct and
insubordination. (Kahan Aff., Ex. DD.) That was the last day
Plaintiff went to work. Plaintiff was issued two more warning
notices, on May 8, 2003 and May 9, 2003, both for failing
to report to work and failing to call in. (Def.'s 56.1 Stmt ¶
37; Pl.'s 56.1 Stmt ¶ 37.) Thereafter, Plaintiff began collecting
worker's compensation and social security disability benefits.
(Def.'s 56.1 Stmt ¶ 39; Pl.'s 56.1 Stmt ¶ 39.) Defendant
officially terminated Plaintiff's employment on October 28,
2004. (Def.'s 56.1 Stmt ¶¶ 44-45; Pl.'s 56.1 Stmt ¶¶ 44-45.)
B. Plaintiff's Allegations of Discrimination
Plaintiff alleges that Defendant discriminated against him on
the basis of race in violation of Title VII of the Civil Rights
Act of 1964 and of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981. Plaintiff claims that he was subjected to disparate
treatment and a hostile work environment when he was forced
to work out-of-title – while his Caucasian co-workers were
not – from 1995 through May 5, 2003, performing dangerous
and undesirable tasks that had no relationship to his job duties
and that ultimately resulted in his back injury. (Compl. 3-4,
7-8.) 2 Further, Plaintiff asserts that, from 1999 to 2003, he
was subjected to a hostile work environment when he was
disciplined for minor infractions, while Caucasian employees
were not disciplined for the same or worse behavior. (Id. 3.)
One incident highlighted by Plaintiff is alleged to have taken
place in November 2002, when Plaintiff claims to have had
his pay docked for attending jury duty. Plaintiff asserts that
Caucasian employees – in particular, Jason Aubry (“Aubry”)
– were never docked pay for attending court appearances. (Id.
4-5, 7.)
In sum, Plaintiff alleges that:
Plaintiff has continually been
disciplined and treated in a disparage
[sic] fashion, due to his race. He
was forced to work out of title since
1995 when he was required to perform
tasks which had no relationship
to his duties. He was docked for
performing legitimate duties, such
as jury duty, all the while white
employees were given time off to
go to court. He was disciplined,
while other white employees were
not disciplined for the same or worse
behavior. Said discrimination occurred
solely because of Plaintiff's race, and
amounted to a hostile environment.
(Id. 1-2.)
C. Procedural History
On October 5, 1999, Plaintiff filed a complaint alleging
harassment on account of his race with the Westchester
County Equal Employment Opportunity/Affirmative Action
Office (“EEO/AAO”). (Def.'s 56.1 Stmt ¶ 14; Pl.'s 56.1 Stmt
¶ 14.) In February 2000, the EEO/AAO determined that there
existed no evidence of racial discrimination or harassment,
and in May 2000, the EEO/AAO closed its file on Plaintiff's
complaint. (Def.'s 56.1 Stmt ¶¶ 15-16; Pl.'s 56.1 Stmt ¶¶
15-16.) Plaintiff filed a complaint dated June 2, 2000 with
the Equal Employment Opportunity Commission (“EEOC”),
alleging racial discrimination and retaliation premised on a
continuing violation spanning from August 2, 1999 to April
14, 2000. (Def.'s 56.1 Stmt ¶ 17; Pl.'s 56.1 Stmt ¶ 17.) In June
2001, the EEOC issued to Plaintiff a Dismissal and Notice of
Rights Letter, in which it “adopted the findings of the State
or Local Fair Employment Practices Agency that investigated
this charge.” (Def.'s 56.1 Stmt ¶ 19; Pl.'s 56.1 Stmt ¶ 19.)
Plaintiff never filed a lawsuit in connection with these claims.
(Def.'s 56.1 Stmt ¶ 20; Pl.'s 56.1 Stmt ¶ 20.)
*3 On August 11, 2003, Plaintiff filed another complaint
alleging discrimination with the New York State Department
of Human Rights (“NYSDHR”). (Def.'s 56.1 Stmt ¶ 40; Pl.'s
56.1 Stmt ¶ 40.) In this complaint, Plaintiff claimed that he
had been treated disparately by Defendant due to his race
from 1999 until May 5, 2003, and that he had been assigned
undesirable tasks at work since 1999. (Kahan Aff., Ex. GG.)
The NYSDHR determined on September 28, 2005, that there
existed no probable cause to support Plaintiff's allegations of
discrimination. (Def.'s 56.1 Stmt ¶ 42; Pl.'s 56.1 Stmt ¶ 42.)
On January 17, 2006, the EEOC issued to Plaintiff a Dismissal
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and Notice of Rights letter. (Def.'s 56.1 Stmt ¶ 43; Pl.'s 56.1
Stmt ¶ 43.)
Plaintiff initiated the present lawsuit on April 19, 2006,
alleging: (i) employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 as amended, 42 U.S.C.
§ 2000e-5(f) (Compl. 8); and (ii) racial discrimination in
violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981
(id. 6). Discovery closed on January 3, 2007. On February
26, 2007, Defendant filed a Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56(b), seeking
summary judgment in its favor on the following grounds:
(a) portions of plaintiff's complaint
are time barred pursuant to the
300 day limitations period set forth
[in] 42 U.S.C. § 2000e-5(e); (b)
plaintiff may not seek damages due
to his termination from employment
since plaintiff failed to exhaust
administrative remedies; (c) the
plaintiff has failed to make out a prima
facie case of racial discrimination via
disparate treatment since the plaintiff
cannot prove that he was subjected
to an adverse employment action or
that a reasonable inference of racial
discrimination can be reached based
upon defendant's actions; (d) assuming
that plaintiff has met the minimal
requirements for a prima facie case
of racial discrimination, the County
presented a race neutral reason for
its employment decisions regarding
[Plaintiff] and the plaintiff cannot
prove that the County's actions were
mere pretext; (e) the plaintiff's claim
based upon the existence of a hostile
work environment must be dismissed
because there is no evidence that
such an environment existed; and (f)
plaintiff's Section 1981 claim must be
dismissed.
(Def.'s Mem. of Law in Supp. of Def. County of Westchester's
Mot. for Summ. J. 1-2 (“Def.'s Mem.”).)
Plaintiff did not file opposition papers by the March 12, 2007
deadline set by Judge Colleen McMahon, to whom this case
was originally assigned. On June 28, 2007, Judge McMahon
issued an order, stating: “Plaintiff's opposition was due March
12, 2007. The court has not received any response. Plaintiff
has 30 days to file a response to the motion. If no response has
been filed, the motion will be deemed submitted and the court
will decide it without benefit of any response.” (Docket No.
27.) Plaintiff failed to file opposition papers within the thirty-
day deadline set by Judge McMahon on June 28, 2007. On
August 6, 2007, the case was reassigned to this Court. Plaintiff
finally filed opposition papers on August 22, 2007 – without
explanation as to the delay or permission from the Court to
do so. The Court held oral argument on March 11, 2008.
For reasons stated herein, Defendant's Motion for Summary
Judgment is GRANTED.
II. Discussion
A. Standard of Review
Summary judgment may be granted when it is shown that
there is “no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). The Court must view all evidence in
the light most favorable to the non-moving party and must
draw all reasonable inferences in the non-movant's favor.
See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d
Cir. 2006). A party seeking summary judgment bears the
burden of establishing that no genuine issue of material fact
exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157
(1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir.
2006). “Once the moving party has made a properly supported
showing sufficient to suggest the absence of any genuine issue
as to a material fact, the nonmoving party, in order to defeat
summary judgment, must come forward with evidence that
would be sufficient to support a jury verdict in his favor.”
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,
18 (2d Cir. 1995). “The motion ‘will not be defeated merely ...
on the basis of conjecture or surmise.’ ” Id. (quoting Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) ); see also
McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4
(2d Cir. 2006) (“[S]peculation alone is insufficient to defeat
a motion for summary judgment.”); Caldarola v. Calabrese,
298 F.3d 156, 160 (2d Cir. 2002) (“[The non-movant] must do
more than simply show that there is some metaphysical doubt
as to the material facts.” (internal quotation marks omitted) ).
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*4 The materiality of the facts considered by the Court
will be governed by substantive law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment,
the Court is not charged with weighing the evidence and
determining its truth, but with determining whether there is
a genuine issue for trial. See Westinghouse Elec. Corp. v.
N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y.
1990); see also Castro v. Metro. Transp. Auth., No. 04-
CV-1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006).
A court's goal should be to “isolate and dispose of factually
unsupported claims.” Celotex, 477 U.S. at 323-24.
While courts are to be “particularly cautious” about granting
summary judgment to employers in cases where the
discriminatory intent of the employer is contested, Schwapp
v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), “[i]t is
now beyond cavil that summary judgment may be appropriate
even in the fact-intensive context of discrimination cases,”
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001). Though district courts must pay careful attention
to affidavits and depositions that may reveal circumstantial
proof of discrimination, see Gallo v. Prudential Residential
Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994), courts
are not to “treat discrimination differently from other ultimate
questions of fact.” Abdu-Brisson, 239 F.3d at 466 (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000) ); see also Schiano v. Quality Payroll Sys., Inc.,
445 F.3d 597, 604 (2d Cir. 2006) (noting the caution with
which the Second Circuit reviews the grant of summary
judgment in discrimination cases “because direct evidence of
discriminatory intent is rare and such intent often must be
inferred from circumstantial evidence found in affidavits and
depositions[,]” but stating that “summary judgment remains
available for the dismissal of discrimination claims in cases
lacking genuine issues of material fact” (internal quotation
marks omitted) ).
B. Applicable Time Limitations
In its Motion for Summary Judgment, Defendant argues that
Plaintiff is not entitled to base his claim on any discrete acts
of alleged discrimination occurring before October 14, 2002
because such acts are more than 300 days before Plaintiff's
NYSDHR complaint was filed. 3 (Def.'s Mem. 3.) Further,
Defendant argues that acts of alleged discrimination that
served as the basis of Plaintiff's 1999 complaint with the
NYSDHR may not form the basis of Plaintiff's present claim
because Plaintiff failed to file suit on those acts within ninety
days of the EEOC's June 11, 2001 Notice of Rights letter. (Id.
5-6.)
To these arguments, Plaintiff responds that his present claims
are not dependent on any discrete acts occurring before those
time periods but insists that consideration of past acts is
appropriate in demonstrating the existence of a hostile work
environment and validating a theory of a continuing violation
based on disparate treatment and out-of-title work. (Pl.'s
Mem. of Law in Opp'n to Def. County of Westchester's Mot.
for Summ. J. Pursuant to Fed. R. of Civ. P. 56(b) 4 (“Pl.'s
Mem.”) (“These instances provide the Court with a history
of how the underlying cause of action came to pass and does
not specifically ask for action on events which started years
earlier. It merely demonstrates the theory of a continuing
violation.”).)
*5 The Supreme Court has made clear that discrete acts
occurring more than 300 days before Plaintiff filed his
complaint with the NYSDHR are not actionable. See Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in
timely filed charges. Each discrete discriminatory act starts
a new clock for filing charges alleging that act. The charge,
therefore, must be filed within the ... 300-day time period
after the discrete discriminatory act occurred.”). Recently, in
Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court
elaborated:
A new violation does not occur,
and a new charging period does
not commence upon the occurrence
of subsequent nondiscriminatory acts
that entail adverse effects resulting
from past discrimination. But of
course, if an employer engages in
a series of acts each of which is
intentionally discriminatory, then a
fresh violation takes place when each
act is committed.... [C]urrent effects
alone cannot breathe life into prior,
uncharged discrimination....
127 S. Ct. 2162, 2169 (2007)
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Acts that were the subject of Plaintiff's 1999 EEO/AAO and
EEOC complaints are also not actionable because Plaintiff
failed to bring suit on those acts within ninety days from
receipt of the EEOC Notice of Rights letter. To the extent that
the second right-to-sue letter, dated January 2006, is based
on the same facts as the first, Plaintiff cannot complain about
those claims in this lawsuit. See Lo v. Pan Am. World Airways,
787 F.2d 827, 828 (2d Cir. 1986) (per curiam) (denying claims
where second EEOC complaint was based on same facts as
earlier lapsed right-to-sue letter). However, the June 2001
right-to-sue letter will not preclude the current suit “to the
extent that plaintiff's Complaint is based on allegations in the
second [EEOC complaint] which did not appear in the first
[EEOC complaint].” Dahbany-Miraglia v. Queensboro Cmty.
Coll., No. 03-CV-8052, 2004 WL 1192078, at *7 (S.D.N.Y.
May 27, 2004). Time-barred acts will only be considered
to the extent that they constitute “background evidence in
support of a timely claim.” Morgan, 536 U.S. at 113 (“The
existence of past acts and the employer's prior knowledge
of their occurrence, however, does not bar employees from
filing charges about related discrete acts so long as the acts are
independently discriminatory and charges addressing those
acts are themselves timely filed.”); see also Williams v. British
Airways, PLC, 06-CV-5085, 2007 WL 2907426, at *11 n.20
(E.D.N.Y. Sept. 27, 2007) (“[C]ertain incidents, even if time-
barred, ‘may constitute relevant background evidence in a
proceeding in which the status of a current practice is at issue.’
” (quoting Morgan, 536 U.S. at 112) ).
The continuing violation theory is a tolling mechanism that
rarely permits recovery for otherwise untimely violations.
See Santiago v. Newburgh Enlarged City Sch. Dist., 485 F.
Supp. 2d 327, 331 (S.D.N.Y. 2007) (“Very few acts qualify as
continuing violations, so as to trigger a continuous tolling of
the statute of limitations.”). A hostile work environment claim
is a type of continuing violation based on the “cumulative
affect of individual acts,” which together constitute “one
unlawful employment practice.” See Morgan, 536 U.S at
115. “It does not matter, for purposes of the [time limitation
in the] statute, that some of the component acts of the
hostile work environment fall outside the statutory time
period. Provided that an act contributing to the claim occurs
within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes
of determining liability.” Id. at 117; accord Santiago, 485
F. Supp. 2d at 331 (“[I]n a hostile work environment case,
acts outside the 300 day limit that contribute to an ongoing
hostile work environment are actionable under a continuing
violation theory.”). The Supreme Court, however, has rejected
the notion “that an employment practice committed with no
improper purpose and no discriminatory intent is rendered
unlawful nonetheless because it gives some effect to an
intentional discriminatory act that occurred outside the
charging period.” Ledbetter, 127 S. Ct. at 2172.
*6 To the extent Plaintiff is able to establish that there
existed a hostile work environment during his employment
with Defendant, recovery may be premised even on untimely
acts as long as they – in conjunction with timely acts – created
a hostile work environment. The Court notes, however, that
even if the past acts contributed to a hostile work environment
under a continuing violation theory, those acts would not
be actionable to the extent that they formed the basis of
Plaintiff's 1999 complaint. Plaintiff's opportunity to file suit
on those alleged violations has long since passed and no
tolling doctrine will revive them at this point. With respect
to Plaintiff's disparate treatment claim based on adverse
employment actions, Plaintiff can only rely on discrete acts
of alleged discrimination occurring within the 300-day period
preceding Plaintiff's August 11, 2003 EEOC complaint. See
Morgan, 536 U.S. at 113.
C. Plaintiff's Request to Supplement the Record
On March 13, 2008, after March 11 oral argument, Plaintiff's
counsel submitted to the Court an application to supplement
the record with a new affidavit from Plaintiff and with what
appears to be the minutes of a meeting held on November
9, 1999. 4 According to Plaintiff's counsel, these additional
submissions “clearly show Plaintiff was treated differently,
that everyone knew about it ... and [that] Plaintiff was held to
a different standard which was discriminatory and caused him
to suffer damages.” (Letter from Pamela D. Hayes, Esq., to the
Court, dated March 17, 2008.) Notably absent from Plaintiff's
counsel's recent submissions is an explanation as to why it has
taken until now to submit these items to the Court – over a
year after Plaintiff's full response to Defendant's Motion was
due.
“Under Fed. R. Civ. P. 6(b)(2), the Court has discretion to
allow plaintiff to submit new evidence if the Court determines
that plaintiff's failure to submit such evidence in a timely
fashion ‘was the result of excusable neglect.’ ” Davidson v.
Scully, 148 F. Supp. 2d 249, 251 (S.D.N.Y. 2001) (quoting
Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984)
). “The determination whether neglect is ‘excusable’ in a
particular case rests with the sound discretion of the district
court.” Keenan, 740 F.2d at 132. In making the equitable
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determination of whether failure to make a more timely
submission of new evidence constitutes excusable neglect, the
factors that the Court may consider include: “ ‘the danger of
prejudice’ to the non-moving party, ‘the length of the delay
and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good
faith.’ ” Scully, 148 F. Supp. 2d at 251-52 (quoting Pioneer
Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380,
395 (1993) ).
Here, the Court has little trouble finding that Plaintiff (or,
really his counsel) has failed to meet the excusable neglect
burden. The information Plaintiff seeks to add was available
to him long ago (over a year) and obviously any first-
hand testimony he offers has always been available to him.
Moreover, Defendant is plainly prejudiced by the late use
of this information as it likely would have been the subject
of rigorous inquiry during Plaintiff's deposition and other
discovery. Nor is there good faith. Plaintiff's counsel only
tendered these new offerings when it was clear that her initial
representations were exposed as wholly unsupported by the
record as it existed at the time the Motion was fully briefed.
Thus, the Court finds the extraordinary delay here to be
inexcusable. Therefore, Plaintiff's request to supplement the
record with the March 13 submissions is denied.
D. Plaintiff's Claims of Employment Discrimination
*7 Plaintiff claims he was the victim of employment
discrimination. To establish a claim of racial discrimination,
Plaintiff must show that either: “(1) an adverse employment
action under circumstances giving rise to an inference of
discrimination based on race; or (2) harassment on the basis of
race that amounts to a hostile work environment.” Williams,
2007 WL 2907426, at *11 (citing Feingold v. New York, 366
F.3d 138, 149 (2d Cir. 2004) ). Plaintiff asserts claims of racial
discrimination based on each of these theories, so the Court
will consider them in turn.
1. Disparate Treatment Claim & the
McDonnell Douglas Framework
Title VII of the Civil Rights Act of 1964 makes it an “unlawful
employment practice for an employer ... to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race....” 42 U.S.C. § 2000e-2(a)(1). The
Supreme Court's opinion in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), “established an allocation of
the burden of production and an order for the presentation of
proof in Title VII discriminatory-treatment cases.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). First, the
plaintiff must establish, by a preponderance of the evidence,
a prima facie case of racial discrimination. Id. Plaintiff's
burden in establishing a prima facie case is “de minimis.”
See Douglas v. Dist. Council 37 Mun. Employees' Educ. Fund
Trust, 207 F. Supp. 2d 282, 289 (S.D.N.Y. 2002). However,
a party's bald assertions, without more, are insufficient to
overcome a motion for summary judgment. See Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985) (“To allow a party to
defeat a motion for summary judgment by offering purely
conclusory allegation of discrimination, absent any concrete
particulars, would necessitate a trial in all Title VII cases.”);
Fair v. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *3
(S.D.N.Y. Sept. 28, 2006) (“To avoid summary judgment ...
the non-moving party must offer ‘some hard evidence’ of its
version of the facts, not merely rely on conclusory allegations
or speculation.”); During v. City Univ. of N.Y., No. 01-
CV-9584, 2005 WL 2276875, at *4, *8-9 (S.D.N.Y. Sept. 19,
2005) (granting summary judgment on discrimination claim
where only evidence was conclusory allegations of plaintiff).
The establishment of a prima facie case gives rise to a
presumption of discrimination. Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 (1981). At that point, the
burden of production (not persuasion) shifts to the defendant
“to provide a legitimate, nondiscriminatory reason for [its]
decision.” Reg'l Econ. Cmty. Action Program, Inc. v. City
of Middletown, 294 F.3d 35, 49 (2d Cir. 2002) (hereinafter
RECAP) (citing Reeves, 530 U.S. at 142 and Heyman v.
Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, Inc., 198 F.3d 68, 72 (2d. Cir. 1999)
). A defendant's burden in this regard is not high; indeed,
a defendant need not prove that it was actually motivated
by these legitimate reasons. See Deravin v. Kerik, No. 00-
CV-7487, 2007 WL 1029895, at *6 (S.D.N.Y. Apr. 2, 2007)
(citing Burdine, 450 U.S. at 254).
If the defendant makes a satisfactory showing, the
presumption of discrimination disappears and the burden
shifts back to the plaintiff. See id. The plaintiff must then
“prove that the defendant[ ] intentionally discriminated
against [him] on a prohibited ground.” RECAP, 294 F.3d at
49. In other words, the plaintiff must show that defendant's
“articulated, legitimate, non-discriminatory reasons were
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pretextual.” Id. (internal quotation marks omitted); accord
Feingold, 366 F.3d at 152 (“If the defendant has stated a
neutral reason for the adverse action, ‘to defeat summary
judgment ... the plaintiff's admissible evidence must show
circumstances that would be sufficient to permit a rational
finder of fact to infer that the defendant's employment
decision was more likely than not based in whole or in part
on discrimination.’ ” (quoting Stern v. Trs. of Columbia Univ.,
131 F.3d 305, 312 (2d Cir. 1997) ) ); Deravin, 2007 WL
1029895, at *6 (“The plaintiff ‘may succeed in this either
directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of
credence.’ ” (quoting Burdine, 450 U.S. at 254) ).
*8 Under McDonnell Douglas and its progeny, the plaintiff
has the ultimate burden of proving discrimination, regardless
of whether the defendant offers evidence of a legitimate
reason for the adverse employment action at issue. See St.
Mary's Honor Ctr., 509 U.S. at 507; Burdine, 450 U.S. at
253; Calabro v. Westchester BMW, Inc., 398 F. Supp. 2d 281,
292 (S.D.N.Y. 2005) (holding that plaintiff ultimately has
the burden of proving employer's discriminatory animus to
survive summary judgment).
a. Prima Facie Case
A plaintiff may establish a prima facie case of disparate
treatment by demonstrating: “1) that he belonged to a
protected class; 2) that he was qualified for the position
he held; 3) that he suffered an adverse employment action;
and 4) that the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory
intent.” Feingold, 366 F.3d at 152.
Because Plaintiff is an African-American man, he belongs
to a protected class and thereby satisfies the first prong of
his prima facie case. Defendant is willing to assume, as is
the Court, that Plaintiff was qualified for the position he
held while working for Defendant, satisfying the second
prong. (Def.'s Mem. 9.) Defendant argues that it is entitled
to summary judgment on Plaintiff's discrimination claim
because Plaintiff failed to satisfy the third and fourth prongs
of his prima facie case.
i. Adverse Employment Action
An adverse employment action is a “ ‘materially adverse
change’ in the terms and conditions of employment. To be
‘materially adverse’ a change in working conditions must be
more disruptive than a mere inconvenience or an alteration of
job responsibilities.” Galabya v. N.Y. City Bd. of Educ., 202
F.3d 636, 640 (2d Cir. 2000) (internal citations and quotation
marks omitted). The Second Circuit has “defined adverse
employment action broadly to include ‘discharge, refusal to
hire, refusal to promote, demotion, reduction in pay, and
reprimand.’ ” Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263
F.3d 208, 223 (2d Cir. 2001) (quoting Morris v. Lindau, 196
F.3d 102, 110 (2d Cir. 1999) ); accord Feingold, 366 F.3d
at 152 (“Examples of materially adverse employment actions
include termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular
situation.” (internal quotation marks omitted) ).
Plaintiff argues that the following constitute adverse
employment actions: (1) the alleged docking of Plaintiff's pay
for attending jury duty on November 8, 2002 (Pl.'s Mem. 11);
and (2) the out-of-title work Plaintiff was allegedly forced to
perform, particularly on May 2, 2003, which led to his back
and neck injury and significant loss of earning potential (id.
9-11). 5 Defendant argues that neither of these constitutes an
adverse employment action. (Def.'s Mem. 10, 12-15.)
*9 Plaintiff alleges that he was docked pay for the several
hours of work he missed on November 8, 2002, when he
answered a jury summons in Bronx County. (Pl.'s Mem. 11;
Compl. 4.) On November 25, 2002, Bates issued to Plaintiff
a warning notice, in which Bates wrote: “Mr. Perry has used
up all his time and continues to take off. On November 18,
2002 [he] used 3 ½ hrs. [leave without pay]. This is warning
no. 2.” (Kahan Aff., Ex. Y.)
Defendant argues that Plaintiff was never docked pay for
attending jury duty on November 8, 2002, but that he was
docked 3.30 hours of pay for being absent on November
18, 2002. In support of this position, Defendant submitted
Plaintiff's leave history, which shows that Plaintiff was not
docked any time on November 8, 2002, and that he was
docked 3.30 hours on November 18, 2002. (Kahan Aff.,
Ex. W.) Defendant also offered affidavits from Joan Vassari,
Defendant's director of personnel, and Bates, Plaintiff's then-
supervisor, both of whom swear that Plaintiff was never
docked pay for attending jury duty. (Aff. of Joan Vassari ¶ 13
(“Vassari Aff.”); Aff. of Robert Bates ¶ 8 (“Bates Aff.”); Dep.
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of Joan Vassari 11 (“Vassari Dep.”) (“[An employee] would
never be docked for jury duty.”).)
The only evidence in the record that supports Plaintiff's
claim that he was docked pay for attending jury duty on
November 8, 2002, is his own deposition testimony and his
own declaration, in which Plaintiff claims that Bates told him
that he would be docked for attending jury duty. (Dep. of Ted
Perry 81-82 (“Pl.'s Dep.”); Pl.'s Decl. ¶ 14.) Plaintiff swears
that he was not absent from work on November 18, 2002,
arguing instead that the time he took off for jury service was
not docked from his paycheck until the following pay period
on November 18, 2002. Plaintiff claims that the November
25, 2002, warning notice was actually for the time Plaintiff
missed on November 8, 2002. (Pl.'s Decl. ¶ 14.)
Thus, with regard to whether Plaintiff was docked pay for jury
duty, the Court has before it conflicting evidence, giving rise
to a factual question suited for a jury. Therefore, construing
the evidence in the non-movant's favor, the Court assumes
for purposes of this Motion that Plaintiff was docked pay for
attending jury duty.
Assuming therefore that Plaintiff's pay was docked for his
jury duty service, the next question is whether such a docking
of pay qualifies as an adverse employment action; in other
words, whether it constitutes a “materially adverse change in
the terms and conditions of employment.” See Galabya, 202
F.3d at 640 (internal quotation marks omitted). For purposes
of this Motion, the Court is willing to assume that it does. See
Cunningham v. Consol. Edison Inc., No. 03-CV-3522, 2006
WL 842914, at *17 (E.D.N.Y. Mar. 28, 2006) (“[D]ocking
of an employee's pay is an adverse employment action.”);
see also Hicks v. Baines, 99-CV-315, 2006 WL 1994808, at
* (W.D.N.Y. July 14, 2006) (“The only specific allegations
that arguably evince an adverse employment action are the
docking of two hours of [one plaintiff's] pay ... and the
docking of 15 minutes of [the other plaintiff's] pay....”).
Therefore, Plaintiff satisfies the third prong of his prima facie
case with respect to the jury duty issue.
Plaintiff argues that he also suffered an adverse employment
action when he was forced to work outside of his Housekeeper
title – often performing the duties meant for employees with
higher pay grades – beginning in 1995. 6 (Pl.'s Mem. 12.)
New York State Civil Service Law § 61(2) prohibits out-of-
title work by declaring that “[n]o person shall be appointed,
promoted or employed under any title not appropriate to the
duties to be performed and, except upon assignment by proper
authority during the continuance of a temporary emergency
situation, no person shall be assigned to perform the duties
of any position unless he has been duly appointed, promoted,
transferred or reinstated to such position....” New York courts
have further defined out-of-title work to encompass situations
“when an employee has been assigned ... to perform the duties
of a higher grade, without a concomitant increase in pay,
frequently, recurrently and for long periods of time.” Sprague
v. Governor's Office of Employee Relations, 786 N.Y.S.2d
634, 635 (App. Div. 2004) (internal quotation marks omitted)
(ellipses in original). 7 However, “not all additional duties
constitute out-of-title work, and the mere fact that there may
be some overlap between two particular positions does not
mandate a finding that a petitioner is being compelled to
perform out-of-title work.” Woodward v. Governor's Office of
Employee Relations, 718 N.Y.S.2d 465, 467 (App. Div. 2001).
*10 Plaintiff claims that his working out-of-title eventually
led to a back injury when, on May 2, 2003, he was ordered
to move several concrete bumpers. (Compl. 3-4; Pl.'s Decl.
¶ 17.) This injury resulted in a partial permanent disability
and loss of Plaintiff's earning potential, which, according to
Plaintiff, constituted an adverse employment action. (Pl.'s
Mem. 9-11; Compl. 7.)
Defendant disputes Plaintiff's claim that he was working out-
of-title or that he was performing the work of a higher salary
grade employee. (Def.'s Mem. 13.) Defendant cites Healy v.
County of Nassau, 796 N.Y.S.2d 377, 379 (App. Div. 2005),
for the proposition that “work is not considered ‘out-of-title’
where it is related to, similar in nature to, or a reasonable
outgrowth of, the ‘in-title’ work.” According to Defendant,
the job assignments that Plaintiff was asked to complete either
fell under his title of Housekeeper or were “reasonably related
to” the Housekeeper job description (Def.'s Mem. 14.), and,
in either case, were based on the needs of the Department (id.
19).
The Court finds a genuine issue of material fact as to
whether the assignments given to Plaintiff – particularly
the May 2, 2003 assignment – were out-of-title, in-title, or
reasonably related to in-title work. In order for Plaintiff to
establish that allegedly out-of-title assignments, particularly
the assignment to move concrete bumpers, constituted an
adverse employment action, Plaintiff must demonstrate that
such assignments resulted in a “ ‘materially adverse change’
in the terms and conditions of [his] employment.” Galabya,
202 F.3d at 640. If what Plaintiff claims is true – that he was
assigned duties outside of his Housekeeper title that somehow
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were typically performed by employees in a higher pay grade
– then Plaintiff will have satisfied his minimal burden of
demonstrating that he suffered an adverse employment action,
at least with regard to out-of-title work performed within the
300-day-period preceding the filing of Plaintiff's NYSDHR
complaint. See Santiago, 485 F. Supp. 2d at 335-36 (referring
to employer's refusal to compensate employee's performance
of out-of-title duties as discrete act). Defendant has failed
to adequately demonstrate that there exists no genuine issue
of material fact with regard to whether Plaintiff's pay was
concomitant with the duties he was assigned. Therefore, for
purposes of this Motion, the Court assumes that Plaintiff
suffered an adverse employment action by being assigned out-
of-title work usually performed by employees with a higher
pay grade.
ii. Inference of Discriminatory Intent
To establish his prima facie case, and thereby shift the
burden of production to Defendant, Plaintiff must establish
an inference of discrimination. Though not required, this is
most commonly done by demonstrating that other similarly
situated persons, not of Plaintiff's protected class, were treated
more favorably than he was in the workplace. See Abdu-
Brisson, 239 F.3d at 467-68. Indeed, Plaintiff has chosen
this approach to make his case. To be similarly situated,
these persons must have been subject to the same standards
governing performance evaluation and discipline and must
have engaged in conduct similar to Plaintiff's. See Norville
v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir.
1999); see also McGuinness v. Lincoln Hall, 263 F.3d 49,
54 (2d Cir. 2001) (“[W]here a plaintiff seeks to establish
the minimal prima facie case by making reference to the
disparate treatment of other employees, those employees
must have a situation sufficiently similar to plaintiff's to
support at least a minimal inference that the difference of
treatment may be attributable to discrimination.”). Evidence
of disparate treatment, however, cannot be based on
conclusory allegations. See Finney v. Planned Parenthood
of N.Y. City, Inc., No. 02-CV-7942, 2003 WL 22928730, at
*4 (S.D.N.Y. Dec. 10, 2003) (granting summary judgment
where only evidence of disparate treatment was plaintiff's
own conclusory allegations); Griffin v. Ambika Corp., 103
F. Supp. 2d 297, 308 (S.D.N.Y. 2000) (“Statements that
are devoid of any specifics, but replete with conclusions,
are insufficient to defeat a properly supported motion for
summary judgment.” (internal quotation marks omitted) ).
*11 Defendant argues that even if Plaintiff did suffer
adverse employment actions, Plaintiff failed to establish that
such actions took place under circumstances giving rise to
an inference of discriminatory intent. (Def.'s Mem. 16-18.)
Plaintiff relies on the alleged disparate treatment between
him and his Caucasian co-workers (in particular, Aubry,
Emery and Ponce) to support his claim that he suffered
adverse employment actions under circumstances giving rise
to an inference of discriminatory intent. (Pl.'s Mem. 12-13.)
More specifically, Plaintiff claims that he was constantly
disciplined and forced to do undesirable out-of-title work,
while his Caucasian co-workers were not. According to
Plaintiff, this disparate treatment demonstrates that the
adverse employment actions he suffered were motivated by
racial discrimination.
In 1993, Emery, Ponce and Plaintiff had their positions
reclassified to that of Housekeeper – the position Plaintiff
still held when his employment with Defendant ended. After
filing a grievance, Emery and Ponce had their positions
reclassified to Maintenance Mechanic, which, according to
Plaintiff, left them “open to higher salaries and promotion
opportunities.” (Pl.'s Decl. ¶¶ 7-8.) Plaintiff claims that he
was not allowed to grieve his reassignment. (Id. ¶ 8.) Plaintiff
makes this argument with no proof whatsoever.
As previously noted, after oral argument, Plaintiff submitted
to the Court an application to supplement the record with
what appears to be the minutes from a meeting that took place
in November 1999. According to Plaintiff, this document
demonstrates that “Defendant treated Plaintiff differently
from the white County employees (Mr. Em[e]ry and Mr.
Ponce), thereby showing that Defendant ... was fully aware
that Plaintiff's title was supposed to have been changed
and was not.” (Letter from Pamela D. Hayes, Esq., to the
Court, dated Mar. 17, 2008.) Despite Plaintiff's urging, this
document cannot be used to create an issue of fact because
the meeting minutes are inadmissible hearsay. See Patterson
v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004);
Witkowich v. Gonzales, 05-CV-7756, 2008 WL 701280, at
*10 n.11 (S.D.N.Y. Feb. 25, 2008) (“[I]nadmissible hearsay ...
[cannot] be used to defeat summary judgment.”). Further, as
discussed above, Plaintiff has failed to demonstrate to the
Court that excusable neglect was to blame for this document
not being added to the record earlier. Cf. Scully, 148 F.
Supp. 2d at 251-52 (plaintiff was permitted to supplement the
summary judgment record because the new evidence was not
previously available, plaintiff exercised good faith, and only
minimal delays would result). Moreover, even if admissible,
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these minutes do Plaintiff no good, for they fail to rebut
Defendant's argument that Plaintiff was always free to grieve
his assignment, but never did. Plaintiff claims he was unaware
of this option, a claim contradicted by the minutes themselves,
but Plaintiff still fails to tender any evidence that Defendant
engaged in any conduct blocking Plaintiff's efforts to grieve
his assigned title.
Without this inadmissible and tardy information, Plaintiff has
no admissible evidence showing that Defendant prohibited
him from grieving his reassignment, that Defendant had an
affirmative obligation to notify Plaintiff of his right to grieve
his reassignment or to help him do it, or that Defendant helped
Emery and Ponce to grieve their status. Moreover, this alleged
act of discrimination was a discrete act occurring several years
before Plaintiff initiated legal action. Therefore, the Court will
not entertain Plaintiff's argument that discriminatory intent
can be inferred from Emery and Ponce being reclassified to
the Maintenance Mechanic position after filing grievances.
Plaintiff also focuses on what he sees as the disparate
treatment between him and Aubry. Plaintiff claims that he
was docked for attending jury duty, but that when Aubry
had to appear in court on several occasions, he was given
time off and never had his pay docked. (Compl. 4-5; Pl.'s
Dep. 117 (“Jason used to go to jail for long periods of
time and come back and have his job and nothing said or
nothing done.”).) 8 Also, Plaintiff alleges that Aubry was
permitted to drive County vehicles without a license – even
though one was required for his position – but that Plaintiff
was disciplined for failing to produce a driver's license –
even though his position did not require that he have such
a license. (Compl. 5; Pl.'s Mem. 13; Kahan Aff., Ex. AA.)
Indeed, according to Plaintiff, he was disciplined for not
having a license, while Defendant actually helped Aubry
obtain his license. (Pl.'s Mem. 13.) Further, Plaintiff claims
that he was constantly disciplined for minor infractions, while
Aubry committed much more serious infractions and was not
similarly disciplined or docked pay. (Id. 13; Compl. 4-5; Pl.'s
Decl. ¶ 19; Kahan Aff., Ex. GG (“In contrast to Mr. Aubry, I
have been written up for numerous incidents, none of which
are as grave as the incidents involving Mr. Aubry.”).)
*12 Plaintiff offers no evidence to support his argument
that Aubry went undisciplined while committing infractions
similar to or worse than those committed by Plaintiff.
Plaintiff was disciplined many times during the course of
his employment with Defendant, mostly for infractions such
as time abuse and insubordination, and he offers no proof
that those were improperly imposed sanctions. (Def.'s 56.1
Stmt ¶¶ 9-12, 23, 25, 29-33, 36-37.) Moreover, Defendant
submitted unrefuted evidence demonstrating that Aubry was
in fact disciplined for time abuse, at least during 2003 and
2004. (Kahan Aff., Exs. LL-NN.) In fact, the evidence shows
that, because of his excessive absenteeism, Aubry was denied
salary increments on August 13, 2003, November 10, 2003,
and February 19, 2004, and that he was denied an unpaid
leave of absence on February 2, 2004. (Id., Ex. MM.) Further,
an Amended Notice of Charges dated April 15, 2004, was
issued to Aubry, detailing 169 charges and specifications
brought against him by Defendant for time abuse spanning
from January 16, 2003, through April 5, 2004. (Id., Ex. LL.)
Aubry resigned before the charges could be resolved. (Id.)
According to Plaintiff, this evidence does nothing to disprove
his claim of disparate treatment since “nothing was done to
Mr. Aubry while Plaintiff was on the job.” (Pl.'s Mem. 13.)
Although the Court agrees with Plaintiff that the record
contains evidence of discipline of Aubry (who was employed
by Defendant for far less time than Plaintiff) that largely
post-dates Plaintiff's employment and, therefore, it does little
to disprove Plaintiff's claim of disparate treatment, it is not
Defendant's burden to disprove an unsupported claim of
disparate treatment. Plaintiff has the ultimate burden under
the McDonnell Douglas framework, St. Mary's Honor Ctr.,
509 U.S. at 507, and he cannot satisfy his burden by making
bare and conclusory assertions that he and Aubry were
similarly situated but that they were treated differently. 9 A
conclusory allegation without support in the record will not
give rise to an inference of discriminatory intent nor will it
defeat a motion for summary judgment.
Aubry, who was a Maintenance Laborer, was required to
have a driver's license. Based on the Housekeeper job
specifications, it appears that Plaintiff was not. 10 (Kahan
Aff., Ex. I.) On December 30, 2002, however, Plaintiff was
issued a warning notice by Bates for failure to produce a
license. (Id., Ex. AA (“Mr. Perry could be asked to drive
at any time and should have his license with him.”).) The
record shows that on June 17, 2002, Aubry was notified
by Commissioner Stanley G. Motley that his probationary
appointment would be terminated if he failed to produce a
driver's license by July 22, 2002. (Pl.'s Exs. in Opp'n Pursuant
to Local Rule 56.1(a) 21 (“Pl.'s Ex.”).) In response to this
notification, Aubry wrote a letter to Motley on July 8, 2002,
indicating that he was in the process of getting his license
back, but that he may not have it back from the Department of
Motor Vehicles (“DMV”) within the time limit specified. (Id.)
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Motley replied to Aubry on July 10, 2002, stating that “[the
County] will try to expedite the return of your driver's license
through the Department of Motor Vehicles. I[n] the event we
can not please be assured that you will still be an employee
in good standing since you have met the legal requirements
and are just awaiting the return of your paperwork from the
State of New York.” (Id.)
*13 Again, Plaintiff has not pointed to any evidence in the
record from which the Court could conclude that Plaintiff
and Aubry were similarly situated with regard to the driver's
license issue. The record demonstrates that Aubry was
threatened with termination (by someone other than Bates) if
he did not produce a driver's license by a certain date. The
record also suggests that Defendant did not offer to “help”
Aubry until it was satisfied that Aubry had done all that he
could to obtain his driver's license and that he was waiting
on paperwork from the DMV. Plaintiff offers no evidence
suggesting that, at the time he was issued a warning notice,
he, like Aubry, had done all that could to obtain his license
but was waiting on documentation from the DMV. Further,
Plaintiff and Aubry did not hold the same positions. Though it
is not entirely clear from the record why Plaintiff was issued a
warning notice for failure to produce a driver's license, there
is nothing in the record suggesting that the reason was racial
discrimination. And, Plaintiff's bare belief that Defendant was
“messing” with him is not evidence of anything. See Powell
v. Consol. Edison Co., 97-CV-2439, 2001 WL 262583, at *12
(S.D.N.Y. Mar. 13, 2001) (“[P]laintiff's subjective belief that a
supervisor had an improper motive is not evidence at all....”).
From this feeble evidence, no reasonable jury could find that
Plaintiff and Aubry were similarly situated but were treated
disparately under circumstances giving rise to an inference of
discriminatory intent.
Plaintiff argues that he was forced to work out-of-title, while
his similarly-situated Caucasian co-workers were not. Some
of his complained of out-of-title duties included digging
ditches, performing firefighter duties, and moving concrete
parking lot bumpers, none of which expressly appear on the
illustrative list of possible Housekeeper duties. (Compl. 3-4;
Kahan Aff., Ex. I.) 11 Even if the Court accepts Plaintiff's
argument that he was given assignments outside of his
Housekeeper title, Plaintiff has offered no evidence from
which the Court could infer that such assignments were
given on account of Plaintiff's race as opposed to any other
reason (such as department need or even personal dislike of
Plaintiff). It is noteworthy that in regard to this claim, Plaintiff
has submitted no evidence of disparate treatment.
Defendant has submitted an affidavit from Bates, in which
he stated that “[t]he decisions regarding jobs to be performed
depended upon the needs of the department and who is
available.... Perry's job assignments were no more difficult,
demanding or dangerous than assignments given to other ...
employees. That Perry did not like some of [ ]his job
assignments is true, but Perry was not singled out for
particular jobs.” (Bates Aff. ¶¶ 3-4.) Plaintiff testified that
during a meeting while Plaintiff was at Bronx River Parkway,
Bates said that “any shit detail that was going to be done,
[Plaintiff] would be doing it.” (Pl.'s Dep. 45.) Plaintiff also
testified that, while at Bronx River Parkway, he worked as
part of a crew – albeit “not the popular crew.” (Id. 44.)
Plaintiff cannot defeat Defendant's Summary Judgment
Motion with these statements. By themselves, these alleged
comments show only that Bates might have disliked Plaintiff
(and others in the group), not that he discriminated against
him. Thus, it is even more apparent that Plaintiff has failed
to demonstrate that any of the work he was assigned –
including the assignment that allegedly led to his back
injury on May 2, 2003 – was assigned to him because of
his race. In a conclusory fashion, Plaintiff claims that he
was made to perform dangerous and demanding out-of-title
work, while Caucasian co-workers were not. (Pl.'s Mem.
9.) Plaintiff has not made any specific allegations asserting,
nor has he provided any admissible evidence suggesting,
that Plaintiff was given assignments more dangerous or
demanding than similarly-situated Caucasian co-workers. 12
See Meiri, 759 F.2d at 998 (“To allow a party to defeat a
motion for summary judgment by offering purely conclusory
allegations of discrimination, absent any concrete particulars,
would necessitate a trial in all Title VII cases.”); Jones,
2008 WL 495498, at *11 (finding plaintiff failed to establish
prima facie case of discrimination because plaintiff offered
no specific information or evidence to substantiate his
conclusory allegation that “white [co-workers] with less
seniority and experience were provided summer employment
while he was not”); Marro v. Nicholson, No. 06-CV-6644,
2008 WL 699506, at *10 (E.D.N.Y. Mar. 12, 2008) (holding
vague and conclusory statements that similarly situated
employees were treated differently failed to give rise to issue
of material fact regarding disparate treatment); Randolph v.
CIBC World Markets, No. 01-CV-11589, 2005 WL 704804,
at *13 (S.D.N.Y. Mar. 29, 2005) (“Although [plaintiff] has
made the general allegation that he was treated more harshly
than white ... employees who committed similar violations ...,
there is no other evidence in the record to support this
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assertion. Conclusory allegations of this sort are insufficient
to survive a motion for summary judgment.”).
*14 As set forth above, Plaintiff has failed to establish a
prima facie case of racial discrimination based on disparate
treatment because he has not offered admissible evidence
suggesting that he suffered adverse employment actions
under circumstances giving rise to an inference of racial
discrimination.
2. Hostile Work Environment Claim
Plaintiff also brings a hostile work environment claim. “The
question of whether a work environment is sufficiently hostile
to violate Title VII is one of fact. On a motion for summary
judgment, the question for the court is whether a reasonable
factfinder could conclude, considering all the circumstances,
that the harassment is of such quality or quantity that a
reasonable employee would find the conditions of [his]
employment altered for the worse.” Schiano, 445 F.3d at 600
(internal quotation marks and citations omitted).
In order to prevail on a hostile work
environment claim, a plaintiff must
first show that the harassment was
sufficiently severe or pervasive to
alter the conditions of the victim's
employment and create an abusive
working environment. Second, the
plaintiff must demonstrate a specific
basis for imputing the conduct creating
the hostile work environment to the
employer.
Feingold, 366 F.3d at 149-50 (internal citations and quotation
marks omitted).
The first prong involves an objective and a subjective
component: “the misconduct shown must be severe or
pervasive enough to create an objectively hostile or abusive
work environment, and the victim must also subjectively
perceive that environment to be abusive.” Id. (internal
quotation marks omitted). In determining whether a work
environment is “hostile” or “abusive,” courts are to look at
the totality of the circumstances, as guided by the following
factors: “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), abrogated
on other grounds by, Burlington Indust., Inc. v. Ellerth,
524 U.S. 742 (1998). Thus, to satisfy the first prong, a
plaintiff “ ‘must demonstrate either that a single incident
was extraordinarily severe, or that a series of incidents
were ‘sufficiently continuous and concerted’ to have altered
the conditions of [his] working environment.’ ” Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Cruz v.
Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) ). Though
a single incident may be severe enough to materially alter
employment conditions, see Patterson, 375 F.3d at 227, in
general the actions taken by the defendant “must be more than
‘episodic; they must be sufficiently continuous and concerted
in order to be deemed pervasive.’ ” Alfano, 294 F.3d at 375
(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997) ); see also Carrero v. N.Y. City Hous. Auth., 890
F.2d 569, 577 (2d Cir. 1989) (holding “incidents must be more
than episodic”). “Where reasonable jurors could disagree as to
whether alleged incidents of racial insensitivity or harassment
would have adversely altered the working conditions of a
reasonable employee, the issue of whether a hostile work
environment existed may not properly be decided as a matter
of law.” Patterson, 375 F.3d at 227.
*15 The existence of a hostile environment alone is
insufficient to make out a Title VII claim, however.
Plaintiff must also show there is some reason to impute
the discriminatory conduct of the employees that created
the hostile work environment to the employer. See Perry,
115 F.3d at 149. Employers are not generally liable for the
harassing behavior of a plaintiff's co-workers; to make an
employer liable for a hostile work environment claim, the
harassment must generally come from a supervisor with
authority over a plaintiff. See Mack v. Otis Elevator Co.,
326 F.3d 116, 123 (2d Cir. 2003) (“[I]t is only when a
supervisor with immediate (or successively higher) authority
over the employee has engaged in the complained of conduct,
that the employer may be subject to vicarious liability.
Employers are not, by contrast, vicariously liable for hostile
work environment created by a mere co-worker of the
victim.” (internal citations and quotation marks omitted) ).
Finally, Plaintiff must prove that the hostile conduct occurred
because of his membership in a protected class. To make
such a showing, a plaintiff must introduce evidence of hostile
conduct that a reasonable juror could find was a result of the
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plaintiff's membership in a protected class. See Brennan v.
Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999).
Plaintiff argues that the accumulation of the following
incidents – which occurred from 1995 through May 2003 –
demonstrate that he was treated differently than his Caucasian
co-workers and constitute a hostile work environment: 13 (1)
After filing a grievance, Emery and Ponce were reclassified
from the Housekeeper title to the Maintenance Mechanic title,
and Plaintiff was not (Pl.'s Mem. 15); (2) Plaintiff was told he
would be fired if he did not do what he was told, regardless
of whether the assignment was in- or out-of-title (id.; Compl.
5; Pl.’s Dep. 112); (3) Plaintiff was the only person docked
pay for going to jury duty (Pl.'s Mem. 15); (4) Plaintiff was
written up for excessive absenteeism on May 8 and 9, 2003,
even though his supervisor knew that he was out because
of the May 2, 2003 injury (id.); (5) Plaintiff had to drive
Aubry around, even though Aubry was required to have a
license (id.; Pl.'s Dep. 113); (6) Plaintiff was not allowed to
wear safety equipment like his Caucasian co-workers (Pl.'s
Mem. 15); (7) Plaintiff was subjected to “Kunta Kinte” jokes
(id. 15-16); 14 and (8) Plaintiff was disciplined for minor
infractions while his Caucasian co-workers were not (Compl.
3). Plaintiff acknowledges that he was not generally subjected
to racial epithets or insults, but insists that, because he was
the only African-American person in his group, no outright
insults were necessary. (Pl.'s Mem. 16.)
*16 Plaintiff does not suggest, and the Court does not find,
that any one of these alleged incidents was severe enough
by itself to alter the conditions of Plaintiff's employment and
thereby constitute hostile work environment. 15 Therefore,
the Court considers these incidents in the aggregate to
determine whether, under the totality of the circumstances,
Plaintiff was subjected to a hostile work environment during
his employment with Defendant. For present purposes, with
regard to timeliness, the Court will assume – without deciding
– that these acts are all properly before the Court as part of
Plaintiff's hostile work environment claim, unless otherwise
noted.
The first issue for the Court is whether Plaintiff was subjected
to an objectively hostile environment during his employment
with Defendant. Feingold, 366 F.3d at 150. In making this
determination, the Harris factors guide the Court's “totality of
the circumstances” analysis. See Harris, 510 U.S. at 23. The
conduct complained of spans a period of approximately eight
years, which is a considerable amount of time considering
the fact that most of the incidents complained of are isolated
occurrences. The fact that the incidents are spread out over
a long period of time tends to weigh against a finding that
Plaintiff's work environment was altered for the worse. See
Williams, 2007 WL 2907426, at *11 (“The incidents that
plaintiff points to were isolated in nature and took place over a
number of years.... Taken together, the incidents described are
separated in time and space and do not demonstrate a change
in work environment.”).
Nonetheless, keeping in mind that it is not for the Court
to act as a “ ‘hierophant of social graces,’ ” see Schiano,
445 F.3d at 605 (quoting Holtz v. Rockefeller Co., 258 F.3d
62, 75 (2d Cir. 2001) ), the Court is unwilling to say that
no reasonable jury could find that the incidents listed above
were severe enough in the aggregate to alter the conditions of
Plaintiff's employment, though the Court has serious doubts.
Indeed, the Second Circuit has cautioned that “hostile work
environment claims present ‘mixed question[s] of law and
fact’ that are ‘especially well-suited for jury determination.’
” Id. (quoting Richardson v. N.Y. State Dep't of Corr. Serv.,
180 F.3d 426, 437 (2d Cir. 1999) ) (alteration in original).
Only when “application of the law to th[e] undisputed facts
will reasonably support only one ultimate conclusion” is
summary judgment appropriate. Richardson, 180 F.3d at 438.
Because reasonable minds may differ on the issue of whether
the conduct complained of altered Plaintiff's employment for
the worse, the Court will not grant summary judgment to
Defendant on the objective element of Plaintiff's hostile work
environment case.
With regard to whether Plaintiff subjectively believed that
his work environment with Defendant was hostile, Plaintiff
has pled that he was caused to “undergo an intimidat[ing],
hostile and offensive work environment causing [him]
monetary damages and emotional injuries and numerous
other injuries.” (Compl. 8.) At this stage, Defendant does not
challenge Plaintiff's claim that he found the work environment
subjectively hostile, so the Court will assume, for purposes of
this Motion, that this element is satisfied.
Plaintiff must show a basis upon which to impute the
discriminatory conduct of the employees that created the
hostile work environment to the employer. See Perry, 115
F.3d at 149. Because most of the complained-of conduct was
alleged to have been committed by Bates, Plaintiff's direct
supervisor, Defendant can be held vicariously liable for any
resulting hostile work environment. See Mack, 326 F.3d at
123.
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*17 Finally, Plaintiff must demonstrate that the hostile
conduct occurred because of his membership in a protected
class. See Brennan, 192 F.3d at 318. “Although the incidents
comprising a hostile work environment claim need not make
reference to any trait or condition on the basis of which
the discrimination has occurred ... they must occur under
circumstances in which ... the incidents can reasonably be
interpreted as having taken place on the basis of that trait
or condition.” Williams, 2007 WL 2907426, at *10 (internal
quotation marks omitted) (ellipses in original). Plaintiff points
to no admissible evidence in the record suggesting that his
race played a role in the way he was treated during his
employment with Defendant. Instead, Plaintiff relies on his
own conclusory statements that: (1) race must have been
a motivating factor because Plaintiff was the only African
American employee in the group (Pl.'s Mem. 16); and (2)
he was treated differently from his Caucasian co-workers
(Compl. 1-2, 3-5, 7; Pl.'s Mem. 15). The problem, however,
is that Plaintiff's membership in a protected class in and of
itself does not establish discriminatory intent. See Ghent v.
Moore, 519 F. Supp. 2d 328, 338 (W.D.N.Y. 2007) (“Without
other evidence of discrimination, [the fact that plaintiff was
the only African-American employee] alone is not probative
of unlawful discrimination.”); Bennett v. Watson Wyatt &
Co., 136 F. Supp. 2d 236, 252 (S.D.N.Y. 2006) (“It is
not enough simply to be a member of a protected class.
To invoke the protections of Title VII, an employee must
have actually suffered discrimination.”). Further, as discussed
above, Plaintiff has offered no evidence demonstrating
that these Caucasian co-workers were similarly-situated to
and actually treated differently than Plaintiff. See Hill v.
Rayboy-Brauestein, 467 F. Supp. 2d 336, 360 (S.D.N.Y.
2006) (“When a person only makes general allegations that
African-Americans are treated differently in the workplace,
those allegations are insufficient to support a hostile work
environment claim.”); see also Marro, 2008 WL 699506, at
*10; Randolph, 2005 WL 704804, at *13.
The Second Circuit has said that “[i]n a hostile work
environment case, it may well be a proper exercise of the
district court's broad discretion to allow the plaintiff to build
[his] case partly by adducing incidents for which the link to
any discriminatory motive may, in the first instance, appear
tenuous or nonexistent.” Schiano, 445 F.3d at 605. However,
the Second Circuit has stood firm on its position that district
courts are not to “treat discrimination differently from other
ultimate questions of fact.” Abdu-Brisson, 239 F.3d at 466;
accord Schiano, 445, F.3d at 603 (“[S]ummary judgment
remains available for the dismissal of discrimination claims
in cases lacking genuine issues of material fact.” (internal
quotation marks omitted) ). On the record before the Court,
no reasonable jury could find that Plaintiff was subjected to a
hostile work environment on account of his membership in a
protected class. Therefore, Defendant's Motion for Summary
Judgment dismissing Plaintiff's hostile work environment
claim is granted.
3. Section 1981 Claim
The McDonnell Douglas burden-shifting framework also
applies to 42 U.S.C. § 1981 claims. See Evans-Gadsden v.
Bernstein Litowitz Berger & Grossman, LLP, 491 F. Supp. 2d
386, 402 (S.D.N.Y. 2007). “To establish the requisite prima
facie case for a violation of [Section 1981], a plaintiff must
establish: (1) that [he] is a member of a racial minority; (2) that
the Defendant intended to discriminate against Plaintiff on the
basis of [his] race; and (3) that the Defendant discriminated
in connection with one of the statute's enumerated activities.”
Id. (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d
Cir. 1999) ).
An individual may be held liable under Section 1981 where
the plaintiff demonstrates “some affirmative link to causally
connect the [defendant] with the discriminatory action.”
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75
(2d Cir. 2000) (internal quotation marks omitted). Although
the elements of a Section 1981 claim and a Title VII claim
are distinct, discriminatory intent is a necessary element
of a Section 1981 claim. See Patterson, 375 F.3d at 226
(“[A] plaintiff pursuing a claimed violation of § 1981 ...
must show that the discrimination was intentional.”). Thus,
a failure to establish sufficient evidence of discriminatory
intent to survive summary judgment on a Title VII claim
is fatal to a similar claim of racial discrimination under
Section 1981. See Gonzalez v. City of New York, 354 F.
Supp. 2d 327, 330 n.2 (S.D.N.Y. 2005) (“Although claims
under 42 U.S.C. § 1981 ... involve different elements than
those involved in Title VII claims, they share in common
with Title VII claims the essential element of intentional
unlawful discrimination. Therefore, the Court's determination
that certain of Plaintiffs' Title VII claims do not survive
summary judgment due to the inadequacy of evidence
regarding discriminatory intent also results in dismissal of
Plaintiffs' § 1981 ... claims.” (internal quotation marks and
citations omitted) ); Patterson, 375 F.3d at 225 (holding
that reasons supporting summary judgment for defendants on
Title VII claims also merited dismissal of plaintiff's Section
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1981 claims). As described in the previous section, Plaintiff
has failed to show intentionally discriminatory conduct on
the part of Defendant, and therefore, summary judgment on
Plaintiff's Section 1981 claim is granted.
III. Conclusion
*18 For the reasons stated herein, Plaintiff's application to
supplement the record is DENIED, and Defendant's Motion
for Summary Judgment is GRANTED. The Clerk of Court is
respectfully directed to terminate all pending motions (Dkt.
Nos. 23, 45), to enter judgment for Defendant, and to close
this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2008 WL 11438085
Footnotes
1 Defendant's Employee Handbook provides the following:
If you are required to serve as a juror or to appear in court pursuant to a subpoena or court order, you will
be granted a leave with pay for such required attendance. Any fees received for such attendance, other
than travel and meals, must be paid to the County. This leave with pay does not apply when your own
personal interests are the subject of the court activity.
(Kahan Aff., Ex. Z.)
2 The Court will cite to Plaintiff's Complaint by page number rather than paragraph number in an attempt to
alleviate the confusion resulting from Plaintiff's reuse of paragraph numbers within the document.
3 “[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially
instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ...,
such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged
unlawful employment practice occurred....” 42 U.S.C. § 2000e-5(e)(1).
4 Plaintiff offered these tardy additions to the record, after he failed to provide the record evidence he claimed
would prove that a supervisor had referred to Plaintiff as “Kunta Kinte.” Obviously, the Court found Plaintiff's
assertion of this claim in response to Defendant's Summary Judgment Motion, which was not backed up
by any evidence in the record (despite representations to the contrary), to be potentially material, if not
dispositive, in resolving the Motion. Accordingly, the Court asked counsel for Plaintiff to show where in the
record there was support for this assertion. Plaintiff never did provide any evidence in the record as it existed
when he responded (several months late) to Defendant's Motion. Instead, Plaintiff sought to augment the
record with the March 13 submissions.
5 Defendant reads Plaintiff's submissions to assert that the various warning notices Plaintiff was issued for time
abuse and failure to produce a driver's license were adverse employment actions in support of this claim.
The Court disagrees with this reading. Instead, it is evident to the Court, based on its reading of Plaintiff's
various submissions, that Plaintiff relies on these warning notices not as adverse employment actions, but
as evidence of discriminatory intent and in support of his hostile work environment claim.
6 Plaintiff offers no specific allegations – let alone evidence – to support this claim. First of all, Plaintiff never
identifies which title would be the appropriate recipient of such duties, nor does he identify the salary grade
appropriate to these duties. Despite these significant infirmities in Plaintiff's claim and because the outcome
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herein is the same either way, the Court will assume – for purposes of this Motion – that the complained-of
assignments would normally be given to an employee with a higher salary-grade title.
7 Interestingly, Plaintiff does not here claim a failure to compensate for higher grade work he allegedly was
assigned, but claims that the out-of-grade work he was assigned both was highly undesirable (which one
would imagine would be lower-grade work) and led to his injuries in May 2003.
8 In his Complaint, Plaintiff also states “the other white employees were given time off without being docked
when they had to perform citizenship duties.” (Compl. 7.) Without any specific allegations or evidence to
support this statement, it cannot be relied upon to establish the fourth prong of Plaintiff's prima facie case. See
Jones v. W. Suffolk Boces, No. 03-CV-3252, 2008 WL 495498, at *11 (E.D.N.Y. Feb. 20, 2008) (finding as
insufficient to satisfy fourth prong of prima facie case plaintiff's conclusory allegation that “white [employees]
with less seniority and experience were provided summer employment while [plaintiff] was not”).
9 On December 14, 2006, Magistrate Judge George A. Yanthis ordered that Defendant turn over to Plaintiff in
discovery Aubry's leave history from 2001 through 2004. (Dkt. No. 15.) Exhibit 34 to Plaintiff's Local Civ. R.
56.1 Statement indicates that these records were in fact provided to Plaintiff. Interestingly, however, Plaintiff
decided not to include Aubry's leave history in the present record. Based solely on the record before it,
the Court has no way of knowing whether Aubry was excessively absent while Plaintiff was employed by
Defendant or, more importantly, whether his pay was ever docked as a result. The Court cannot assume
either of these things to be the case based solely on Plaintiff's bare assertions.
10 The Court notes, however, that there is evidence in the record to suggest that, in May 2002, Plaintiff was
told that some work assignments would require him to drive. (Kahan Aff., Ex. V.) During his deposition,
Plaintiff testified to his belief that his supervisors would make him drive because “they w[ere] just messing
with [him].” (Pl.'s Dep. 60.)
11 Plaintiff elaborated more fully on this issue in his complaint before the NYSDHR:
Since Mr. Bates became my supervisor, I have been assigned tasks that no one else wants to do. These
tasks are the most physically demanding and dangerous assignments. For example, I have been assigned
to dig holes without a back hoe or assistance, and I have been required to move concrete parking lot
bumpers despite the fact that I have a documented back injury. I have been sent to do weed-whacking jobs
without chaps, safety glasses and ear protection. The aforementioned examples are not an exhaustive
list of undesirable duties I have been assigned since 1999. It should be noted that when co-workers are
assigned to work with me, they view the assignments as a form of punishment. I am being punished
everyday especially since almost all the work I perform is out of my job title.
(Kahan Aff., Ex. GG.) Again, it is entirely unclear from Plaintiff's allegations and submissions the title for which
Plaintiff believes these duties are appropriate.
12 One of the alleged out-of-title assignments that Plaintiff complains of was when he was allegedly asked
to perform “firefighter duties.” (Compl. ¶ 1.) However, in an undated letter written by Donald Kranker, a
Maintenance Laborer and Shop Steward, he complains of an August 23, 2002 firefighting assignment that
was given to him, Plaintiff, Jason Aubry and one other employee. (See Pl.'s Ex. 29.) Thus, at least with
respect to the firefighting assignment, the record not only fails to show that Plaintiff was singled out for the
assignment, but actually demonstrates that Caucasian co-workers were given the same assignment; in fact,
Jason Aubry – who happens to be the employee Plaintiff focuses on to demonstrate disparate treatment
– was one of the employees sent to perform firefighting duties with Plaintiff. Therefore, there is no basis
whatsoever for Plaintiff to claim that he was assigned firefighter duties based on his race.
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13 In his Complaint, Plaintiff alleged that the hostile work environment spanned from 1999 to 2003. (Compl. 3.)
14 In his opposition brief, Plaintiff asserted – as evidence that he was subjected to a hostile work environment
– that he endured comments about “Kunta Kinte.” (Pl.'s Mem. 15-16.) In support of this allegation, Plaintiff
offered the Court an unhelpful and erroneous citation – without page number – to Plaintiff's Exhibit 3, which
is an approximately 50-page excerpt from Plaintiff's deposition testimony. Yet, there was no reference to this
comment in Plaintiff's deposition. In fact, nothing Plaintiff provided in opposition to the Summary Judgment
Motion contained any evidence that Plaintiff was subjected to such comments.
During oral argument, the Court asked Plaintiff's counsel what in the record supported the allegation that
Plaintiff was subjected to “Kunta Kinte” comments. Plaintiff's counsel represented to the Court that Plaintiff
testified during his deposition that he was referred to as “Kunta Kinte” by his supervisor. Defendant's counsel
indicated that he had a recollection of such testimony. Plaintiff's counsel further represented that she would
send the relevant pages from Plaintiff's deposition transcript to the Court the following day, which she failed
to do.
Instead, on March 12, 2008, Defendant's counsel sent to the Court Plaintiff's entire deposition transcript
and a letter, in which he represented: “I have found no reference to the ‘Kunta Kinte’ comment referenced
by plaintiff's counsel. I was in error when I stated that such a comment was made by Mr. Perry at his
deposition.” (Letter from Stuart E. Kahan, Esq., to the Court, dated Mar. 11, 2008.)
On March 14, 2008, the Court received from Plaintiff's counsel via overnight mail: (1) a letter dated March
13, 2008, in which she admitted, “[t]here is no reference to [the “Kunta Kinte” comment] in the deposition
transcript,” and (2) an application to supplement the record with a new affidavit from Plaintiff and what appears
to be the minutes of a meeting held on November 9, 1999. (Letter from Pamela D. Hayes, Esq., to the Court,
dated Mar. 13, 2008.) In his putative supplemental affidavit, Plaintiff states that he was referred to as “Kunta
Kinte” by a supervisor identified only as “Mike,” without any details regarding when or where this allegedly
occurred.
This affidavit is suspicious. First, Plaintiff never made this allegation in either claim he made to the EEOC, nor
included it in his Complaint. Second, it is plainly lacking in details – including the full identity of the speaker
and the date. In any event, the Court will not accept this affidavit, as it is way out of time from a party that
has already demonstrated, through his counsel, a profound disregard for deadlines and process in this case.
Cf. Scully, 148 F. Supp. 2d at 251-52 (allowing plaintiff to oppose defendant's summary judgment with new
evidence for limited purposes because plaintiff could not have submitted new evidence earlier and plaintiff
demonstrated good faith).
15 Again, this excludes the alleged “Kunta Kinte” reference.
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Pierre v. Capital One Financial Corporation, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 801321
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Cynthia PIERRE, Plaintiff,
v.
CAPITAL ONE FINANCIAL CORPORATION
and Richard D. Fairbank, Chairman and
Chief Executive Officer, Defendants.
21-CV-30 (PKC) (JRC)
|
Signed 03/16/2022
Attorneys and Law Firms
Cynthia Pierre, Brooklyn, NY, Pro Se.
Kelly Marie Cardin, Ogletree Deakins, Stamford, CT, Jessica
Rose Schild, Ogletree, Deakins, Nash, Smoak & Stewart,
P.C., New York, NY, for Defendants Richard D. Fairbank,
Capital One Financial Corporation.
MEMORANDUM & ORDER
Pamela K. Chen, United States District Judge:
*1 Plaintiff Cynthia Pierre brings this action against
Defendants Capital One Financial Corporation (“Capital
One”) and Richard D. Fairbank, Chairman and Chief
Executive Officer of Capital One. Plaintiff is a former
employee of Capital One who believes she was wrongfully
terminated. Currently before the Court is Defendants’ motion
to dismiss Plaintiff's Third Amended Complaint (“TAC” 1 )
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)
(6), as well as Plaintiff's request for leave to amend. For the
reasons explained below, Defendants’ motion to dismiss is
granted, Plaintiff's request for leave to amend is denied, and
this case is dismissed in its entirety.
BACKGROUND
I. Factual Allegations 2
Plaintiff was employed with Defendant Capital One for seven
years—first part-time, then full-time, and eventually as a
lead teller and branch ambassador. (See TAC, Dkt. 1-1, ¶
33.) On September 19, 2016, Plaintiff's cashbox showed
an overage of $15,125.53. 3 (Id. ¶¶ 19–20.) Months later,
Plaintiff was told by her bank manager, Ogbonna Obi, that
the overage was caused by a systems error. (Id. ¶ 21.) On
December 28, 2018, Plaintiff's cashbox again showed an
overage, this time in the sum of $2,021.05. (Id. ¶ 5.) Plaintiff
asked Obi whether “he [had] heard anything regarding [the]
difference,” whether “the error [was] found,” and whether
“there [were] any updates on the error.” (Id. ¶¶ 24–26.) Obi
“reassure[d] [her] that everything w[ould] be fine.” (Id. ¶ 27.)
On March 12, 2019, however, Obi called Plaintiff into his
office and terminated her employment because the $2,021.05
overage “was never located nor figured out,” and the error
was attributed to Plaintiff. (Id. ¶ 32.) Plaintiff alleges that
other employees and former employees have similarly had
overages (as well as shortages) in their cashboxes, but were
not terminated. (Id. ¶¶ 34–45.)
II. Procedural History
Plaintiff initially filed this case in New York state court on
March 12, 2020, against Obi, Defendant Fairbank, and Sharon
Andrews. (Complaint, Dkt. 10-1.) Plaintiff subsequently filed
an Amended Complaint in the state court action, naming
only Obi and Andrews as defendants, and listing a single
cause of action for wrongful termination. (First Amended
Complaint (“FAC”), Dkt. 10-2.) On July 13, 2020, Obi and
Andrews moved to dismiss, arguing that Plaintiff was an
at-will employee, and that New York does not recognize a
wrongful termination cause of action for at-will employees.
(Motion to Dismiss, Dkt. 10-4.) After holding oral argument,
the state court granted the motion to dismiss—with leave to
replead—in a brief, handwritten order that instructed Plaintiff
to name Capital One Bank as the defendant, and to “specify
which laws [the Complaint] is based on: city, state[,] or
federal, or all, and [to] cite which sentence(s) of the laws she
claims were violated.” (Affidavit of Kelly Cardin (“Cardin
Aff.”), Dkt. 10, at ¶ 6; State Court Order, Dkt. 10-5.) On
December 8, 2020, Plaintiff filed the TAC, which contains
substantially similar factual allegations as the FAC (compare
FAC, Dkt. 10-2, with TAC, Dkt. 1-1), but names as defendants
Fairbank and, for the first time, Capital One, and lists as
the “Cause of Action,” “Capital One Bank Code of Business
Conduct and Ethics Policy Sections 1.1, 1.2, 1.3, [and] 2.1,”
as well as “CPLR Sections 1001(a), [and] 1501” (TAC, Dkt.
1-1, ¶ 58). 4 Plaintiff attached to the TAC Capital One's “Code
of Conduct.” (Dkt. 1-1, at ECF 5 24–57.) Section 1.1 of that
document is titled “Our Code of Conduct” and states:
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*2 At Capital One, we share a proud
commitment to upholding the highest
standards of professional ethics. Our
Code of Conduct (Code) reflects our
core values of Excellence and Do the
Right Thing. Our Code memorializes
Capital One's commitment to comply
with applicable laws and regulations
governing our operations, and to earn
our reputation for honesty, fair dealing,
and integrity every day. We owe it to
one another, our customers, and the
communities we serve.
(Id. at ECF 29.)
Section 1.2, titled “Our People,” states:
Our Code applies to all Capital
One associates and members of
the Company's Board of Directors,
and extends to all Capital One
subsidiaries. References to “Capital
One associates” in this Code cover
Board members and associates,
including those in our international
locations. The conduct of our vendors,
suppliers, service providers, and
affiliates (Third Parties) is governed
by the Third Party Code of Business
Conduct and Ethics.
(Id.)
Section 1.3, titled “Our Responsibilities,” states:
We expect all associates to live our Company's values
by doing the right thing. Knowing, understanding, and
following applicable laws and regulations are critical to
living our values, safeguarding Capital One's reputation,
and maintaining our customers’ trust. Our Code should be
read and understood in conjunction with relevant Capital
One policies, standards, and procedures. References in
this document to “the Code” and “Company policy” are
intended to include all relevant policies, standards, and
procedures.
Where applicable laws or regulations differ from our Code,
policies, standards, or procedures, or where a line of
business, department, office, group or team has specific
requirements, we are expected to follow the most restrictive
applicable requirement. We must comply with the letter and
spirit of the law and our Code, use fact-based and sound
judgment, and seek guidance whenever needed. Associates
who violate the Code will be subject to legal action and
discipline up to and including termination of employment.
(Id. at ECF 30.)
Section 2.1, titled “Fairness, Dignity, and Respect,”
includes sections on diversity and inclusion, harassment and
discrimination, and equal employment opportunities. (Id. at
35–36.)
In her TAC, Plaintiff alleges that § 1.3's requirement to
“comply with the letter and spirit of the law and our Code, use
fact-based and sound judgment, and seek guidance whenever
needed,” was “never utilized to ascertain the facts during the
investigation of the $2,021.05” overage, which led to her
termination. (Compl., Dkt. 1-1, ¶¶ 50–51. 6 ) Plaintiff also
alleges that Capital One's “Employees Manual” 7 authorizes
termination of employees for unexplained overages and
shortages, which Plaintiff asserts is an “unfair-dealing
practice.” (Id. ¶ 54.) Also attached to the TAC is a letter sent
to Defendant Fairbank before this case was filed, demanding
$500,000 for lost wages and “mental anguish from the
wrongful termination AND discrimination.” (Dkt. 1-1, at ECF
21.)
*3 After Plaintiff filed the TAC, Capital One removed
the case to this Court based on diversity jurisdiction (Dkt.
1), and Plaintiff filed a motion to remand (Dkt. 7), which
this Court denied (Dkt. 14). 8 In February 2021, Defendants
requested a pre-motion conference to discuss filing a motion
to dismiss pursuant to Rule 12(b)(6). (Dkt. 12. 9 ) In their
request, Defendants noted that Plaintiff was an at-will
employee, and that New York does not recognize wrongful
termination claims for at-will employees—substantially the
same arguments made by Obi and Andrews in their motion
to dismiss the First Amended Complaint in state court. (Id.;
Dkt. 10-4.)
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The Court held the requested conference on March 23, 2021.
At the conference, the Court explained to Plaintiff that her
TAC appeared to allege that Defendants had failed to follow
their Code of Conduct, but that violation of Capital One's
internal policy alone does not give rise to a cause of action.
The Court also informed Plaintiff that if she was an at-will
employee, she did not have a cause of action for wrongful
termination, but that if she had a written employment contract,
or even an informal assurance that she could be fired only
for just cause, she might. Plaintiff, however, confirmed that
she was an at-will employee, and stated that she did not
have a written employment contract and had never been told
or received anything indicating that she could be fired only
for cause. Plaintiff reiterated that she believed that the sole
reason that she was fired was due to the overage, and that she
believed that her termination violated Capital One's Code of
Conduct. She also explained that she had named Fairbank as
a Defendant only because of her belief that he had created
Capital One's policies. Explaining to Plaintiff that the Court
was attempting to determine if there was any reason to allow
Plaintiff to amend her complaint before deciding the motion
to dismiss, the Court asked Plaintiff again if she felt that she
had alleged all of the facts relevant to her termination, and
Plaintiff replied that she had.
At the close of the conference, the Court informed the
parties that it would construe Defendants’ pre-motion letters
as their motion to dismiss, allow Defendants to file an
additional letter supplementing their arguments, and then
allow Plaintiff to respond. (03/23/2021 Docket Order.) In
Defendants’ supplemental letter, they argue that New York
does not recognize wrongful termination claims, and that a
claim based on an alleged violation of Capital One's internal
policy is not actionable. (Dkt. 18. at 3–4.) In her response,
Plaintiff reasserted her claims under Capital One's Code of
Conduct, and also, for the first time, asserted claims under
the Fourteenth Amendment of the United States Constitution,
arguing that her termination violated both substantive and
procedural due process, under a “job as property” theory.
(Dkt. 19 at 3–4. 10 ) Defendants submitted a brief reply noting
that they are not state actors, and thus neither the Fifth or
Fourteenth Amendments, or the “job as property” doctrine,
apply to them. (Dkt. 20.)
MOTION TO DISMISS
I. Legal Standard
*4 To survive a motion to dismiss pursuant to Rule 12(b)(6),
“a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A “claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The “plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Id.
Determining whether a complaint states a plausible claim for
relief is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”
Id. at 679. In addressing the sufficiency of a complaint,
courts are required to accept the well-pleaded factual
allegations in the complaint as true, see Bldg. Indus. Elec.
Contractors Ass'n v. City of New York, 678 F.3d 184, 187
(2d Cir. 2012), but “need not credit conclusory statements
unsupported by assertions of facts or legal conclusions and
characterizations presented as factual allegations,” In re
Livent, Inc. Noteholders Sec. Litig., 151 F. Supp. 2d 371, 404
(S.D.N.Y. 2001) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)); see also Rothstein v. UBS AG, 708 F.3d 82, 94 (2d
Cir. 2013). Additionally, a court “need not feel constrained to
accept as truth conflicting pleadings that make no sense, or
that would render a claim incoherent, or that are contradicted
either by statements in the complaint itself or by documents
upon which its pleadings rely, or by facts of which the court
may take judicial notice.” In re Livent, 151 F. Supp. 2d at 405–
06 (citing Hirsch v. Arthur Andersen & Co., 72 F.3d 1085,
1095 (2d Cir. 1995)).
“A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted). “Nonetheless, a pro se
complaint must state a plausible claim for relief.” Meadows
v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020).
II. Application
The motion to dismiss must be granted because, even liberally
construed, Plaintiff's complaint does not state a plausible
claim for relief. Defendants are correct that “New York ...
does not recognize a cause of action for ‘wrongful discharge.’
” Sandberg v. KPMG Peat Marwick, L.L.P., 111 F.3d 331, 335
(2d Cir. 1997) (citing Murphy v. Am. Home Prod. Corp., 448
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N.E.2d 86, 89–90 (N.Y. 1983) (“[W]here an employment is
for an indefinite term it is presumed to be a hiring at will[,]
which may be freely terminated by either party at any time for
any reason or even for no reason.”)). Accordingly, an at-will
employee has a cause of action stemming from termination
only where there was (1) “a constitutionally impermissible
purpose,” (2) “a statutory proscription,” or (3) “an express
limitation in the individual contract of employment.” Lauture
v. Int'l Bus. Machines Corp., 216 F.3d 258, 262 (2d Cir. 2000)
(emphasis removed) (quoting Murphy, 448 N.E.2d at 91).
Plaintiff has not plausibly alleged that her termination was
the result of a constitutionally impermissible purpose. On
that issue, Defendants are correct that the Fifth and Fourteen
Amendments are inapplicable here because Defendants are a
private corporation and a private individual, not state actors.
Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178, 186
(2d Cir. 2005) (“[A] litigant claiming that his constitutional
rights have been violated must first establish that the
challenged conduct constitutes state action.”); Mathura v.
Council for Hum. Servs. Home Care Servs., Inc., 107
F.3d 3 (Table), 1997 WL 62940, at *1 (2d Cir. 1997)
(“Purely private employment ... creates no property interest to
which procedural due process protections apply.”) (brackets
omitted) (quoting Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502,
1507 (6th Cir. 1990)); McClary v. O'Hare, 786 F.2d 83, 88 (2d
Cir. 1986) (explaining that substantive due process protects
individuals only against government actions). 11
*5 With respect to statutory proscriptions, the Court is
mindful of its obligation to interpret pro se submissions “to
raise the strongest arguments that they suggest,” Meadows,
963 F.3d at 243, and that many cases of wrongful termination
allege discriminatory discharge in violation of statutes such
as 42 U.S.C. § 1981, Title VII, or the New York State or New
York City Human Rights laws. In particular, at the pleading
stage, a plaintiff can demonstrate circumstances giving rise to
an inference of discriminatory discharge by alleging that she
fell within a protected group and was treated less favorably
than a similarly situated employee who was not a member
of that protected group. Brown v. Daikin Am. Inc., 756 F.3d
219, 229 (2d Cir. 2014). Here, however, even considering all
of Plaintiff's submissions together, and liberally construing
them, Plaintiff has not plausibly alleged that her termination
was the result of impermissible discrimination. Her demand
letter to Defendant Fairbank did mention “mental anguish
from ... discrimination” (Dkt. 1-1, at ECF 21), but did not
allege discrimination based on being a member of a protected
class. Her TAC is similarly devoid of such allegations.
Presumably, she meant discrimination between herself and
other employees who had overages and were not terminated.
On that issue, the TAC does allege, with some level of
specificity, that other employees who had overages were not
terminated. (TAC, Dkt. 1-1, ¶¶ 34–45.) However, she does
not allege that any of those employees were not members
of a protected class to which she belongs, which might
have permitted this Court to find that the TAC gives rise
to an inference of discrimination. The Court finds it notable
that, when attempting to frame her claims as constitutional
violations, Plaintiff made only due process arguments, and
not equal protection arguments (which also would have been
inapplicable to the private Defendants, see Flagg, 396 F.3d
at 186). Moreover, at the conference held before this Court,
Plaintiff made it clear that she believes what her TAC alleges
—that she was terminated exclusively because of the overage,
not because of any impermissible discrimination.
Finally, while New York does not recognize a “wrongful
termination” claim, violation of an “express limitation in
the individual contract of employment” may give rise to a
breach of contract claim. Baron v. Port Auth. of N.Y. and
N.J., 271 F.3d 81, 85 (2d Cir. 2001); see also Lauture, 216
F.3d at 262. The Court notes that, “[w]hile an ‘at will’
employment relationship is terminable at any time by either
the employer or the employee, with or without cause, the
relationship indisputably is contractual in nature.” Hartzog
v. Reebok Int'l Ltd., 77 F. Supp. 2d 478, 479 (S.D.N.Y.
1999) (collecting New York cases). Furthermore, in some
circumstances, portions of internal policies may become part
of the employment contract itself. Baron, 271 F.3d at 85.
Defendants are correct that, without more, a violation of an
internal company policy does not support a cause of action,
unless the violation also contravenes federal, state, or local
law. Fattoruso v. Hilton Grand Vacations Co., LLC, 873 F.
Supp. 2d 569, 581 (S.D.N.Y. 2012), aff'd, 525 F. App'x 26 (2d
Cir. 2013).
As discussed above, despite interpreting Plaintiff's
submissions to raise their strongest possible arguments,
this Court concludes that Plaintiff has not alleged any
constitutional or statutory violation. Liberally construed,
however, Plaintiff's references to the Capital One Code of
Conduct are an attempt to argue that (1) the Code of Conduct
should be incorporated into her contract of employment, (2)
the Code of Conduct placed an express limitation on her
contract of employment, (3) her termination violated the Code
of Conduct, and thus (4) Plaintiff's termination breached her
contract of employment. 12
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Even so, Plaintiff's argument falls short because an
ancillary document such as a personnel manual can
become a part of the employment contract only where
it “specif[ies] the employer's practices with respect to
the employment relationship, including the procedures or
grounds for termination,” and the employee can prove “(1)
an express written policy limiting the employer's right of
discharge exists, (2) the employer (or one of its authorized
representatives) made the employee aware of this policy,
and (3) the employee detrimentally relied on the policy in
accepting or continuing employment.” Baron, 271 F.3d at 85.
“The New York Court of Appeals has admonished that this is a
difficult pleading burden, and that routinely issued employee
manuals, handbooks and policy statements should not lightly
be converted into binding employment agreements.” Id.
(internal quotation marks, citations, brackets, and emphasis
omitted) (collecting New York cases). Furthermore, generic
anti-discrimination policies and manuals “cannot serve as the
basis for a breach of contract claim.” Price v. Cushman &
Wakefield, Inc., 808 F. Supp. 2d 670, 700 (S.D.N.Y. 2011)
(collecting cases).
*6 Here, the Court has not only considered the sections
of Capital One's Code of Conduct that Plaintiff relied
on—which are outlined and quoted above—but also
reviewed the document in its entirety. Although stating that
“[a]ssociates who violate the Code will be subject to legal
action and discipline up to and including termination of
employment” (Dkt. 1-1, at ECF 30), there is nothing in the
Code of Conduct that can reasonably be construed as an
express policy limiting Capital One's right to discharge its
employees. Accordingly, Plaintiff has not plausibly alleged a
breach of contract claim.
For the reasons explained above, none of Plaintiff's filings,
even considered together and liberally construed, state a
plausible claim for relief. Accordingly, Defendants’ Rule
12(b)(6) motion to dismiss must be granted. 13
LEAVE TO AMEND
Under Rule 15(a), “[t]he court should freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2);
TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d
Cir. 2014). Nevertheless, “it is within the sound discretion
of the district court to grant or deny leave to amend,” Green
v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009), and leave
to amend may be denied for, among other reasons, futility,
Williams v. Citigroup, Inc., 659 F.3d 208, 213–14 (2d Cir.
2011) (per curiam). Leave to amend is futile where a Plaintiff
cannot, in good faith, add allegations that would enable
the complaint to survive a motion to dismiss. See Panther
Partners Inc. v. Ikanos Commc'ns, Inc., 347 F. App'x 617,
622 (2d Cir. 2009) (summary order). Here too, pro se parties
are given special solicitude. See Ahlers v. Rabinowitz, 684
F.3d 53, 66 (2d Cir. 2012). A pro se plaintiff should be given
leave to amend “at least once[,] when a liberal reading of
the complaint gives any indication that a valid claim might
be stated.” Id. However, because Plaintiff “has suggested no
new material she wishes to plead,” and “the problem with [the
plaintiff's] causes of action is substantive,” “[s]uch a futile
request to replead should be denied.” Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000); Edwards v. Black, 854 F. App'x
382, 386 (2d Cir. 2021) (summary order) (applying Cuoco
where plaintiff was not represented on appeal).
Here, Plaintiff has already amended her complaint twice.
Between the first and second amendment, the defendants
(albeit different from the present Defendants) moved to
dismiss on substantially identical grounds to those presented
here (Compare Motion to Dismiss, Dkt. 10-4, with Dkt. 18),
and the state court held oral argument and granted Plaintiff
leave to amend with specific instructions on how to attempt
to state a claim (Cardin Aff., Dkt. 10, at ¶ 6; State Court
Order, Dkt. 10-5). Nevertheless, when Plaintiff amended her
complaint, she continued to make nearly identical factual
allegations. (Compare FAC, Dkt. 10-2, with TAC, Dkt. 1-1.)
In addition, before setting the briefing schedule on the current
motion to dismiss, this Court held a conference with the
parties, in part to determine whether Plaintiff should be
given leave to amend before the motion was filed. At the
conference, Plaintiff confirmed on the record that she was an
at-will employee, stated that she had not been told or received
anything indicating that she could be fired only for cause,
reaffirmed that she believed that the sole reason she was fired
was because of the overage, and said that she had already
alleged all of the facts relevant to her termination.
*7 Nevertheless, in her opposition to the present motion to
dismiss, Plaintiff requests leave to amend, though she does not
explain what additional material she would allege in another
amended complaint. (Dkt. 19, at 5.) The Court finds that
amendment would be futile, and thus the request must be
denied. Based on all of the above, it is clear that “the problem
with [Plaintiff's] causes of action is substantive,” she has
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no new allegations that she could, in good faith, add to her
complaint that would enable it to survive a motion to dismiss,
and thus Plaintiff's leave to amend “should be denied.” Cuoco,
222 F.3d at 112; see Edwards, 854 F. App'x at 386; Panther
Partners, 347 F. App'x at 622.
CONCLUSION
For the reasons explained in this Memorandum & Order,
Defendants’ motion to dismiss is granted, and Plaintiff's
request for leave to amend is denied. Plaintiff's complaint is
thus dismissed, with prejudice and without leave to replead,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The Clerk of Court is respectfully directed to enter
judgment accordingly and close this case.
All Citations
Not Reported in Fed. Supp., 2022 WL 801321
Footnotes
1 This case was originally filed in state court and, while the operative complaint is titled the “Third Amended
Complaint,” as far as the Court can tell, the complaint has been amended only twice, as explained in the
below review of the procedural history.
2 The factual allegations are drawn from Plaintiff's TAC and, for the purposes of this motion to dismiss, the
Court assumes their truth. See Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424,
429 (2d Cir. 2012).
3 An “overage” refers to when the cashbox contains more money than the records indicate it should, as opposed
to a “shortage,” which refers to when the cashbox contains less money than the records indicate it should.
(See TAC, Dkt. 1-1, ¶¶ 20, 23.)
4 N.Y. C.P.L.R. § 1001(a) covers the necessary joinder of parties, and § 1501 covers service and judgments
in cases of joint liability. Neither provides an independent cause of action.
5 Citations to “ECF” refer to the pagination generated by the Court's CM/ECF docketing system and not the
document's internal pagination.
6 The Complaint includes multiple paragraphs numbered 50–53. This citation references the first paragraphs
numbered 50–51.
7 Beyond the Code of Conduct, no additional document titled an “Employees Manual” is in the record. Plaintiff
may be referring to the Code of Conduct itself. The Code of Conduct contains a section titled “Accurate
Recordkeeping and Reporting,” which notes that “all Capital One associates are responsible for maintaining
accurate and complete accounting and financial records.” (Id. at ECF 43.) Neither that section nor any other
section in the Code of Conduct, however, specifically mentions overages or shortages. As discussed below,
Plaintiff has squarely stated that she has never been given any document indicating that she could be
terminated only for cause, and thus the potential existence of a separate Employees Manual does not change
the Court's reasoning or conclusion on either the motion to dismiss or request for leave to amend.
8 The motion was styled as an objection to the removal, but the Court construed it as a motion for remand.
(01/18/2021 Docket Order.)
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9 By separate letter, Defendant Fairbank joined this request and also sought leave to file a motion to dismiss
pursuant to Rule 12(b)(2) for lack of personal jurisdiction. (Dkt. 16.) At the pre-motion conference, the Court
informed Defendant Fairbank that, depending on the outcome of the Rule 12(b)(6) motion, the Court might
set a briefing schedule on his Rule 12(b)(2) motion at a later date. (03/23/2021 Minute Entry.)
10 The response is styled as a motion to strike Defendants’ motion to dismiss, but a subsequent letter from
Plaintiff explained that the submission was Plaintiff's opposition to the motion to dismiss. (See Dkt. 21.)
11 Although Plaintiff did not raise these constitutional claims until her opposition to the motion to dismiss, in
the case of a pro se litigant, courts may consider new claims—as well as new facts—raised in opposition
papers. Davila v. Lang, 343 F. Supp. 3d 254, 267 (S.D.N.Y. 2018) (collecting cases); see also Walker v.
Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to dismiss may consider
factual allegations made by a pro se party in his papers opposing the motion.”).
12 In determining what legal claims a pro se litigant has raised, “the court's imagination should be limited only by
[the pro se litigant's] factual allegations, not by the legal claims set out in [her] pleadings.” Phillips v. Girdich,
408 F.3d 124, 130 (2d Cir. 2005).
13 Given the Court's conclusion, it need not reach Defendant Fairbank's argument that “even assuming that her
wrongful termination claim was cognizable[,] ... Plaintiff has identified no basis pursuant to which individual
liability for her termination could attach to Mr. Fairbank.” (Dkt. 18, at 3.)
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Ranaghan v. New York Association of Psychiatric..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 431165
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Denise RANAGHAN, Plaintiff,
v.
NEW YORK ASSOCIATION OF PSYCHIATRIC
REHABILITATION SERVICES, Defendant.
1:20-cv-488 (GLS/ATB)
|
Signed 02/08/2021
Attorneys and Law Firms
Kimberly Webster, Law Office of Kimberly Webster PLLC,
New Paltz, NY, for Plaintiff.
Kristi Rich Winters, Jackson Lewis P.C., Albany, NY, for
Defendant.
SUMMARY ORDER
Gary L. Sharpe, U.S. District Judge
*1 Plaintiff Denise Ranaghan brings this action
against defendant New York Association of Psychiatric
Rehabilitation Services (NYAPRS) alleging sex
discrimination in violation of Title VII, 1 and disability
discrimination in violation of the Americans with Disabilities
Act (ADA). 2 (Dkt. No. 1, Compl. at 20-22.) Before the court
is NYAPRS's motion to dismiss Ranaghan's complaint. (Dkt.
No. 8.) For the reasons that follow, the motion is granted, and
Ranaghan's complaint is dismissed.
Ranaghan filed a complaint with the New York State Division
of Human Rights in April 2019. (Compl. ¶ 20.) “During
the last week of January 2020, the Equal Employment
Opportunity Commission [(EEOC)] mailed [Ranaghan] a
Notice of Right to Sue letter.” (Id. ¶ 21.) The right to sue letter
is dated January 24, 2020. (Dkt. No. 1, Attach. 1 at 1.)
Ranaghan commenced this action pro se on April 30, 2020.
(Compl.) After NYAPRS filed its motion to dismiss, (Dkt.
No. 8), counsel entered a notice of appearance on behalf of
Ranaghan, (Dkt. No. 14), and filed Ranaghan's opposition to
the motion to dismiss, (Dkt. No. 17).
The standard of review under Fed. R. Civ. P. 12(b)(6) is well
settled and will not be repeated here. For a full discussion of
the governing standard, the court refers the parties to its prior
decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d
215, 218 (N.D.N.Y. 2010).
In seeking dismissal of Ranaghan's complaint, NYAPRS
argues that Ranaghan failed to commence her action
within ninety days of receiving her right to sue letter, in
contravention of 42 U.S.C. § 2000e-5(f)(1), and, thus, her
complaint is untimely and must be dismissed. (Dkt. No.
8, Attach. 1 at 4-7.) In response, Ranaghan argues that
NYAPRS cannot prove that her complaint was untimely;
even if her complaint was untimely, equitable tolling and/
or equitable estoppel applies; and NYAPRS “does not and
cannot plausibly argue prejudice.” (Dkt. No. 17 at 2-13.) The
court agrees with NYAPRS.
A. Timeliness
“In order to be timely, claims under Title VII [and the ADA]
must be filed within 90 days after receipt of the right to sue
letter from the EEOC.” Troise v. SUNY Cortland NY, No.
5:18-cv-734, 2021 WL 75708, at *5 (N.D.N.Y. Jan. 8, 2021)
(citation omitted); see Tiberio v. Allergy Asthma Immunology
of Rochester, 664 F.3d 35, 37-38 (2d Cir. 2011). “This [90-
day] requirement should be strictly enforced and not extended
by even one day.” Barney v. H.E.L.P. Homeless Serv. Corp.,
No. 19 Civ. 5959, 2020 WL 1699984, at *3 (S.D.N.Y. Apr.
8, 2020) (internal quotation marks and citations omitted).
“Courts in the Second Circuit ‘presume[ ] that a mailed
document is received three days after its mailing ... and that
the notice is presumed to have been mailed on the date shown
on the notice.’ ” Troise, 2021 WL 75708, at *5 (quoting Ko
v. JP Morgan Chase Bank, N.A., 730 F. App'x 62, 63 (2d
Cir. 2018)). “However, if a claimant presents sworn testimony
or other admissible evidence from which it could reasonably
be inferred either that the notice was mailed later than its
typewritten date or that it took longer than three days to reach
her by mail, the initial presumption is not dispositive.” Id.
(internal quotation marks, alteration, and citation omitted).
*2 Here, Ranaghan does not allege the date she received the
right to sue letter. (See generally Compl.) However, the letter
is dated January 24, 2020, (Dkt. No. 1, Attach. 1), which,
absent any evidence to the contrary, creates a presumption that
it was mailed on that same day. See Troise, 2021 WL 75708, at
*5. Presuming that the document was received three days after
its mailing, see id., Ranaghan should have filed her complaint
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on or before April 27, 2020. 3 Ranaghan filed her complaint
on April 30, 2020—three days late. (Compl.)
In arguing that the surrounding facts rebut the presumption
that the letter was mailed on the date shown on the notice
and received three days later, Ranaghan asserts the following:
she relocated nine days before the date shown on the right
to sue letter, and, “[a]lthough [she] has not claimed to have
updated her address with the EEOC during that short time
period,” it would be improper to fault her for this because
“the EEOC had been silent for several months”; she “was very
busy with getting settled in her new home and consequently
did not check her mail frequently for a fair amount of time
afterward”; “[i]t is likely she did not actually receive the letter
on the same day it arrived in her mailbox”; “the relevant
question is not when the letter may have arrived in a mailbox
where [she] either currently receives or previously received
mail, but rather when she herself actually received the letter”;
“[p]recedent indicates that the EEOC's letter date is not
always its mailing date,” and, although she “does not have
the envelope that contained the EEOC letter, ... the fact that
this issue of mismatching dates has arisen multiple times in
this district calls into question any presumption that the letter
date and mailing date are equivalent”; and “[r]elevant U.S.
Postal Service data calls the propriety of the presumption into
question.” (Dkt. No. 17 at 2-5 (emphasis omitted).)
These arguments are unavailing. Indeed, “a person who
files a claim with the EEOC is responsible for ensuring
the agency possesses their current address.” Troise, 2021
WL 75708, at *6 (citations omitted); see Taylor v. Fresh
Direct, No. 12 Civ. 2084, 2012 WL 6053712, at *5 n.16
(S.D.N.Y. Dec. 5, 2012) report and recommendation adopted
No. 12 Civ. 2084, 2013 WL 1897778 (S.D.N.Y. May 7, 2013)
(“EEOC regulations require the Commission to be notified
of a claimant's address change: The person claiming to be
aggrieved has the responsibility to provide the Commission
with notice of any change in address and with notice of any
prolonged absence from that current address so that he or
she can be located when necessary during the Commission's
consideration of the charge. On this basis alone, courts
routinely reject equitable tolling arguments where a plaintiff's
failure to timely receive an EEOC right to sue letter was
caused by his own failure to notify the EEOC of an address
change.” (citations omitted)); Felton v. New York Post, No.
90 CIV 2251, 1990 WL 113176, at *2, 5 (S.D.N.Y. Aug. 2,
1990) (“[I]t is well established that non-receipt of a right-to-
sue letter because of a change of address about which the
EEOC was not informed is not an event beyond a plaintiff's
control.” (citations omitted)).
Further, as previously noted, “[i]t is presumed that a
government notice was mailed on the date shown on the
notice and received three days later.” Stevenson v. City of
N.Y. Dep't of Corr., No. 09-CV-5274, 2011 WL 13175927,
at *2 (E.D.N.Y. July 11, 2011) (citing Sherlock v. Montefiore
Med. Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996)). Although
this presumption may be rebutted by either sworn testimony
or other admissible evidence to show that the notice was
mailed later than its stated date, or that it took longer than
three days to be received, see Sherlock at 526, Ranaghan
has offered no such evidence. See Rosas v. Berry Plastics
(Pliant LLC), 649 F. App'x 3, 4 (2d Cir. 2016) (“[Plaintiff's]
complaint did not state when he received the right-to-sue
letter; [plaintiff] instead left that portion of the complaint
blank. In the absence of contrary evidence or a challenge to
that effect, it is presumed that [plaintiff] received the right
to sue letter [three days after the date on the EEOC notice],
and the time to file his complaint expired 90 days later.”).
Accordingly, because Ranaghan offers nothing beyond mere
speculation to support her arguments, she fails to rebut the
presumption that she received the right to sue letter three days
after the date shown on the notice.
*3 As such, because the right to sue letter is dated
January 24, 2020, and Ranaghan did not commence the
action until more than ninety-three days later, her claims
are time-barred. See Foster v. Walgreen Co., 12 F. Supp. 3d
615, 618 (W.D.N.Y. 2014) (“Indeed, ‘in the absence of a
recognized equitable consideration the court cannot extend
the limitations period by even one day.’ ”) (quoting Johnson
v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d
Cir. 1984)); Thomas v. Providence Hous. Dev. Corp., No. 11-
CV-6480, 2013 WL 2147422, at *1 (W.D.N.Y. May 15, 2013)
(dismissing plaintiff's claims as untimely because they were
filed 93 days after receipt of right-to-sue letter). 4
B. Equitable Tolling
Next, Ranaghan argues that, even if her complaint is found
to be untimely, equitable tolling applies. (Dkt. No. 17 at
6.) Specifically, she argues that the pro se filing of her
complaint 5 was delayed by “confusion about technical legal
matters”; “[t]he coronavirus pandemic severely delayed [her]
progress in several respects”; her attorney had an immediate
family member who was in the emergency room during part of
the week before the filing; and “[t]he pandemic has impaired
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the flow of necessary materials and information from
government entities to [Ranaghan] and [her] undersigned
counsel.” (Id. at 6-10.)
“The time limits for filing a complaint are not jurisdictional
and, therefore, in the appropriate circumstances, could be
subject to equitable tolling.” Morgan v. Mohawk Valley
Psychiatric Ctr., No. 6:20-CV-740, 2020 WL 7395622, at *2
(N.D.N.Y. Dec. 17, 2020) (citation and alterations omitted).
“The 90-day deadline to file suit may be equitably tolled if the
district court finds that the circumstances that caused the delay
in filing are rare and exceptional.” Id. (internal quotation
marks and citations omitted); see Rosas, 649 F. App'x at 5
(“Equitable tolling applies only in the rare and exceptional
circumstance.” (citation omitted)).
In order to receive the benefit of equitable tolling, the
plaintiff “must establish two elements: (1) that [s]he has
been pursuing h[er] rights diligently, and (2) that some
extraordinary circumstance stood in h[er] way and prevented
timely filing.” Hunt v. Con Edison Co. N.Y.C., No. 16-
CV-0677, 2017 WL 6759409, at *4 (E.D.N.Y. Dec. 29, 2017)
(internal quotation marks and citation omitted). “Although
held to more lenient standards, pro se litigants are not excused
from establishing these elements.” Id. (citations omitted).
*4 Here, Ranaghan's “confusion about technical legal
matters” when filing her complaint pro se does not qualify
as a rare or exceptional circumstance. See Bray v. Suffolk
Cty. Dep't of Health Servs., No. 18-CV-4962, 2019 WL
4736740, at *3 (E.D.N.Y. Sept. 27, 2019) (“While the Court
is sympathetic to her circumstances, [plaintiff's] status as a
pro se litigant and her confusion are not grounds for equitable
tolling.”); Ayala v. U.S. Postal Serv., No. 15-CV-4919, 2017
WL 1234028, at *7 (S.D.N.Y. Mar. 31, 2017), aff'd sub nom.,
727 F. App'x 15 (2d Cir. 2018) (“A pro se litigant's mistake
about the correct way to calculate the ninety-day period does
not warrant equitable tolling.” (citations omitted)); Glover v.
Fed'n of Multicultural Programs, No. 14-CV-4006, 2015 WL
4600645, at *6 (E.D.N.Y. July 29, 2015) (“[W]hether due
to a mistake of law or a miscalculation of time, [a pro se
plaintiff's] incorrect belief [about] the 90-day deadline is not
a valid reason to toll the time limitation.”).
And the remainder of her arguments also fail. Although the
court is sympathetic to the aforementioned circumstances,
such arguments do not provide a basis for equitable tolling.
Indeed, the inability to find an attorney does not constitute a
rare and exceptional circumstance. See Stevenson v. City of
N.Y. Dep't of Corr., No. 09-CV-5274, 2011 WL 13175927, at
*4 (E.D.N.Y. July 11, 2011), aff'd sub nom. Stevenson v. N.Y.
Dep't of Corr., 489 F. App'x 517 (2d Cir. 2012) (“A plaintiff's
inability to secure counsel, despite a diligent search during
the statutory period, does not provide a sufficient basis for
equitable tolling of the 90-day limitation period.” (citations
omitted)).
Further, it is unclear how or why these circumstances
impaired Ranaghan's ability to file her complaint a mere
three days earlier, within the ninety-day limitation period.
See Mandarino v. Mandarino, 408 F. App'x 428, 430 (2d
Cir. 2011) (“[W]e have held that a litigant seeking equitable
tolling cannot rely on conclusory and vague claims.” (internal
quotation marks, alteration, and citation omitted)); Pillco v.
Bradt, 10 Civ. 2393, 2010 WL 3398467 at *2 (S.D.N.Y.
Aug. 26, 2010) (“To meet the extraordinary circumstances
standard, a petitioner must prove that the cause of his
delay was both beyond his control and unavoidable even
with diligence.” (internal quotation marks and citations
omitted)). Accordingly, an application of equitable tolling is
not warranted here.
C. Equitable Estoppel
Ranaghan also argues that equitable estoppel applies, because
NYAPRS's counsel “purposely induced [Ranaghan] to delay
her filing.” (Dkt. No. 17 at 11.) Specifically, Ranaghan
argues that defense counsel stated, “obviously I am willing
to work with you to be reasonable,” and, “[r]elying on
that representation, [Ranaghan and her] counsel expended
time and effort presenting a settlement offer rather than
ensuring [Ranaghan's] filing [was timely].” (Id.) However,
it is unclear how this alleged statement “induced” Ranaghan
to delay her filing, and Ranaghan does not allege any
factual allegations in support of this contention, nor does
she offer sufficient evidence indicating as such. See Barbosa
v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210,
216 (S.D.N.Y. 2010) (“As one district court noted, the
ninety-day filing requirement can only be tolled for reasons
such as ... the defendant engaged in affirmative misconduct,
encouraging the plaintiff to take no action. In the absence of
a recognized equitable consideration, the court cannot extend
the limitations period by even one day.” (internal quotation
marks, alteration, and citations omitted)).
*5 Similarly, Ranaghan's argument that equitable
estoppel applies because defendant “achieved its favorable
administrative result by procuring the absence of an
unfavorable witness and withholding evidence,” (Dkt. No. 17
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at 11), also fails for those same reasons. And, in any event,
it is unclear how this allegation relates to, and prevented
Ranaghan from, filing a timely complaint. See Morgan,
2020 WL 7395622, at *2. Accordingly, Ranaghan has not
demonstrated that equitable estoppel is applicable here.
Finally, to the extent Ranaghan contends that NYAPRS does
not, and cannot, argue that it has been prejudiced by her failure
to file her complaint three days earlier, (Dkt. No. 17 at 12-13),
as discussed at length herein, “[t]he 90-day limit at issue
here is not merely a suggestion; it is a statutorily-imposed
requirement necessitating strict adherence, subject only to
very narrow exceptions.” Celestine v. Cold Crest Care Ctr.,
495 F. Supp. 2d 428, 432 (S.D.N.Y. 2007). And, [a]lthough
the time period is subject to extension, the statutory limits
imposed by Congress are not to be taken lightly.” Id. As
such, because Ranaghan failed to file her complaint within the
ninety-day time period, and because neither equitable tolling
nor equitable estoppel applies, NYAPRS's motion to dismiss
is granted, and Ranaghan's claims are dismissed.
Accordingly, it is hereby
ORDERED that NYAPRS's motion to dismiss (Dkt. No. 8)
is GRANTED; and it is further
ORDERED that Ranaghan's complaint (Dkt. No. 1) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary
Order to the parties.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 431165
Footnotes
1 See 42 U.S.C. §§ 2000e-2000e-17.
2 See 42 U.S.C. §§ 12101-213.
3 The third day, April 26, fell on a weekend. Therefore, the limitations period is extended “until the end of the
next day that is not a Saturday, Sunday or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).
4 Ranaghan also argues that the EEOC's determination “may not be final.” (Dkt. No. 17 at 5-6.) Specifically,
she states that “she has filed a timely request to reopen the state administrative agency proceeding upon
which the EEOC's determination is based,” and, “[b]ecause the EEOC used the incomplete record it received
from its state equivalent, the still-pending request to reopen with the state agency arguably renders the initial
decision from the EEOC no longer a final action.” (Id. at 5 (internal quotation marks and citations omitted).)
However, Ranaghan does not allege that she filed a request to reopen the proceeding, nor does she allege
that such a request was granted, (see generally Compl.), nor does she offer any evidence indicating as such.
Indeed, similar to her other arguments, Ranaghan's contention that the EEOC's determination “may” not be
final is entirely speculative.
5 As noted above, Ranaghan filed her complaint pro se, (Compl.), but obtained counsel in opposing the motion
to dismiss.
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Shindé v. Chamber Music America, Inc., Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1042284
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Gargi SHINDÉ, Plaintiff,
v.
CHAMBER MUSIC AMERICA,
INC., et al., Defendants.
23-CV-2554 (AT) (OTW)
|
Signed February 25, 2025
Attorneys and Law Firms
Zachary J. Liszka, Zachary J. Liszka, Esq., Brooklyn, NY, for
Plaintiff.
John Joseph Byrnes III, Elizabeth Rolande Gorman, Milber,
Makris, Plousadis & Seiden, LLP, Woodbury, NY, Victoria
Scaglione, Lewis Brisbois Bisgaard & Smith LLP, New York,
NY, James S. Yu, Seyfarth Shaw LLP, New York, NY, for
Defendant Kevin Kwan Loucks.
John Joseph Byrnes III, Milber, Makris, Plousadis & Seiden,
LLP, Woodbury, NY, Victoria Scaglione, Lewis Brisbois
Bisgaard & Smith LLP, New York, NY, for Defendants
Margery Hwang, Chamber Music America, Inc., Kevin Kwan
Loucks, Jennifer Grim, Lecolion Washington.
James S. Yu, Marlin Duro-Martinez, Seyfarth Shaw LLP,
New York, NY, for Defendant Peter A. Walker.
REPORT & RECOMMENDATION TO
THE HONORABLE ANALISA TORRES
Ona T. Wang, United States Magistrate Judge
I. INTRODUCTION
*1 Plaintiff Gargi Shindé (“Plaintiff”), brings this action
against Chamber Music America, Inc. (“CMA”), Kevin Kwan
Loucks (“Loucks”), Margery Hwang (“Hwang”), Lecolion
Washington (“Washington”), Jennifer Grim (“Grim,”
collectively, the “CMA Defendants”), and Peter A. Walker
(“Walker), alleging that Defendants engaged in unlawful
discriminatory practices in violation of the New York City
Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§
8-107(6), (7), (19), and retaliation in violation of 42 U.S.C.
§ 1981. (ECF 1). The CMA Defendants and Walker filed
separate motions to dismiss on July 29, 2024. (ECF Nos. 79,
81). The motions were then referred to me by Judge Torres on
July 31, 2024, for report and recommendation, (ECF 84) and
were fully briefed on August 30, 2024. For the reasons below,
I respectfully recommend that Defendant Walker's motion to
dismiss be GRANTED, and CMA Defendants’ motion to
dismiss be GRANTED in part and DENIED in part.
II. BACKGROUND
Unless otherwise noted, the following facts are taken from
the First Amended Complaint (“FAC”) (ECF 60) and are
accepted as true for purposes of the motion to dismiss. 1
A. Plaintiff Joins CMA and Works with Susan Dadian
After garnering 15 years of industry experience in the
performing arts scene and specific expertise in, among other
things, dismantling institutional bias and strategic program
transformation, Plaintiff Gargi Shindé accepted an offer
of employment and joined CMA as the program director
of CMA's jazz grant program. (ECF 60 ¶¶ 55-57). Her
responsibilities included managing the jazz grant program,
outreach to increase the diversity of the applicant pool, and
consultations and workshops, among other things. (ECF ¶
58). Plaintiff reported directly to CMA's CEO, Margaret
Lioi. (ECF 60 ¶ 59). Plaintiff also worked with Susan
Dadian (“Dadian”), who was the program director for CMA's
contemporary/classical grant programs. (ECF 60 ¶ 63).
Dadian also reported directly to Lioi. (ECF 60 ¶ 64).
Starting in 2017, CMA established certain equity goals,
and, under the leadership of Lioi, CMA's Board of
Directors enacted a Diversity, Equity, and Inclusion (“DEI”)
commitment and directed and trained its staff to implement
it in their work. (ECF 60 ¶¶ 67-68). However, Plaintiff
became increasingly concerned that Dadian was attempting
to interfere with the ability of members of the public
to obtain grants from CMA because of race. (ECF 60 ¶
72). Plaintiff recounts numerous instances involving friction
between Dadian and CMA's DEI program, including, most
importantly, an event in late 2017 where Dadian told
Plaintiff, “in sum and substance, that there was nothing left
for white people at CMA anymore because of Defendant
CMA's recently-enacted equity commitments.” (ECF 60 ¶¶
72-73). Plaintiff reported this comment to Lioi, who later
reprimanded Dadian via email. (ECF 60 ¶¶ 74-75). Dadian
was also forced to undergo racial sensitivity training, to track
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her progress for outreach to Black/African musicians, and to
report back to Lioi weekly. (ECF 60 ¶ 76).
*2 Despite this punishment, Dadian continued to make
similar comments about race and CMA's DEI initiatives for
the next several years. For example:
• In December of 2017, Dadian made derogatory remarks
to Plaintiff about a Black grant applicant, calling him a
“con” who was exploiting his heritage;
• In April 2018, Dadian told Plaintiff that she would need
to “bring in a low bar panel” for Black grant applicants
to be successful;
• In December 2018, a CMA staff member informed
Plaintiff that Dadian needed a “serious intervention”
because of how Dadian was acting towards CMA's DEI
initiatives;
• In February 2019, Dadian texted Plaintiff that she
had been specifically instructed to engage with Black/
African artists, saying “Don't they understand my
difficulty, I cannot find an African American;”
• In April 2019, a CMA staff member complained to
Plaintiff that Dadian was misrepresenting the goals of
CMA's DEI program and implied that white men and
Asian women were “throwing off [her] numbers;”
• In November 2019, a CMA staff member told Plaintiff
that Dadian was making racist comments and was
attempting to evade punishment by re-allocating her
duties to other staff members; and
• In April 2020, Dadian texted Plaintiff “I haven't marketed
to white males for year.”
(ECF 60 ¶¶ 72-73). Dadian then turned her attention to
Plaintiff, telling Plaintiff “in sum and substance” that Plaintiff
was selected to represent CMA at conferences and CMA
favored her jazz grant programs because of her skin color. 2
(ECF 60 ¶ 77).
B. Plaintiff's Promotion and Dadian's Backlash
On May 6, 2021, Lioi promoted Plaintiff to “Director of
Grant Programs.” (ECF 60 ¶ 60). As part of her promotion,
CMA issued a press release touting Plaintiff's success in
incorporating CMA's equity goals. (ECF 60 ¶ 61). Around the
same time, Lioi demoted Dadian to “Grants Officer,” which
resulted in a salary decrease. (ECF 60 ¶ 79).
After Plaintiff's promotion and Dadian's demotion, Dadian
began acting out towards Plaintiff, screaming at Plaintiff that
she had “taken money out of her pocket.” (ECF 60 ¶¶ 81-82).
In October of 2021, Dadian refused to introduce Plaintiff, her
now supervisor, as the new Director of Grant Programs at
a meeting with CMA constituents. (ECF 60 ¶ 83). Between
September of 2021 and March of 2022, Dadian “feign[ed]
inability to competently respond to grant inquiries” and told
Plaintiff to respond to them herself. (ECF 60 ¶ 84).
In August 2021, while Lioi was on vacation, Plaintiff told
Nichole Knight, the Director of Operations, about Dadian's
behavior and explained that she felt the misconduct was
motivated by her race and/or skin color. (ECF 60 ¶ 85). In
September 2021, Lioi stepped down from her role as CEO and
was replaced by Loucks. (ECF 60 ¶ 80).
C. Plaintiff Reports Dadian's Behavior
After Loucks assumed the role of CEO, in September 2021,
Plaintiff called Loucks and informed him that (1) CMA
staff reported that Dadian made offensive race-based remarks
about members of the public and (2) Dadian started acting “in
an extremely hostile manner” towards Plaintiff after Plaintiff
was promoted. (ECF 60 ¶¶ 88-89). Loucks responded that he
would “clean up culture,” but did not say anything further
on the matter. (ECF 60 ¶ 89). Loucks did not take any
action immediately after the call with Plaintiff. (ECF 60 ¶¶
90-91). In October 2021, Plaintiff and Loucks held another
meeting wherein Plaintiff recounted to Loucks Dadian's past
resistance to CMA's DEI initiatives, Lioi's reprimanding
of Dadian, CMA staff members’ complaints about certain
remarks Dadian made about CMA grant applicants and
grantees on the basis of race or color, Plaintiff's belief that
at least two staff members had quit because of Dadian, and
Dadian's hostile behavior toward Plaintiff, which she believed
was based on Plaintiff's race. (ECF 60 ¶ 93). Loucks did
not ask follow-up questions and instead shifted the meeting
to discuss deliverables before concluding shortly thereafter.
(ECF 60 ¶ 94).
*3 In November 2021, Plaintiff emailed Loucks and
expressed her desire to have a meeting with Loucks and
Dadian, to which he replied that day that he agreed and
said: “I think we need to have a discussion. I have also
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been considering making some personnel changes that might
remedy the situation and wanted to explore them with
you.” (ECF 60 ¶¶ 95-96). However, Loucks did not convene
a meeting with Plaintiff and Dadian or take any other action
with respect to Dadian's behavior. (ECF 60 ¶¶ 98-99).
D. Plaintiff Escalates Her Complaints
In January 2022, nearly four months after Plaintiff's initial
complaints to Loucks, Plaintiff emailed Loucks again,
attaching a letter that explained in detail the issues that
Plaintiff and others at CMA have had with Dadian since at
least 2017. (ECF 60 ¶¶ 98-102). Four days later, on January
6, 2022, having heard no response from Loucks, Plaintiff
emailed a similar letter to Hwang, Chair of the CMA Board of
Directors and Chair of the Executive Committee, and stated
that she believed Loucks was fostering a hostile workplace
and failing to address the discrimination she was facing
from Dadian. (ECF 60 ¶ 104). The following day, Hwang
wrote to Plaintiff and encouraged her to “work out your
differences with Kevin Loucks directly.” (ECF 60 ¶ 105).
Then, on January 20, 2022, Plaintiff emailed CMA Executive
Committee Members Washington and Grim with a letter that
detailed the actions of Dadian and stating that Hwang had
“abdicated her duty in this matter.” (ECF 60 ¶ 106). Neither
Washington nor Grim ever responded to Plaintiff's email.
(ECF 60 ¶ 107).
In February 2022, Loucks held a ceremony for Dadian to
honor her service to CMA. (ECF 60 ¶¶ 108-109). Plaintiff
emailed Loucks that she would not attend the ceremony
and conveyed that she thought Loucks's failure to properly
investigate or otherwise act with respect to Dadian's behavior
made him complicit in her actions. (ECF 60 ¶ 110). Plaintiff
also informed Loucks in her email that she would be filing
a complaint with the New York City Commission on Human
Rights. (ECF 60 ¶ 110). That afternoon, Loucks replied by
email and stated the company was retaining an attorney to
look into the issues [Plaintiff] raised,” and “[a]lternatively,
if you believe that you no longer wish to be a part of the
CMA team, please also let me know this so that I may get
authorization from the Board to discuss with you an exit
package and strategy so that we can work cooperatively to
support you as you transition to other employment.” (ECF 60
¶ 110).
On February 12, 2022, Plaintiff emailed to Loucks her
board report—a report that she had previously routinely
submitted to Lioi—regarding the successes and challenges
she faced in administering her program and asked that she
be consulted before any changes were made. (ECF 60 ¶¶
112-115). The report contained a section titled “Program
Challenges” wherein Plaintiff stated that she was operating
in isolation due to HR, personnel, and operational challenges
that had all been reported to the CEO and Board Chair. (ECF
60 ¶ 116). The report contained another section titled “Puerto
Rico Advocacy,” which stated that no artists from Puerto Rico
were invited to a CMA conference as speakers or attendees
because Plaintiff was excluded from the conference by the
Director of Operations “with the knowledge and approval of
the CEO.” (ECF 60 ¶ 116). The report also contained a section
titled “BIPOC Advocacy,” which stated that there were very
few Black jazz artists and Black classical ensemble members
registered for an upcoming conference, and that a “CMA
junior associate, who is herself a Black jazz artist, was also
excluded from conference planning and execution.” (ECF 60
¶ 116). Loucks replied later that day and stated: “I will make
any changes and adjustments [to the board report] that I see
fit... If you attempt to go over my head by reaching out to
Board members and disrespecting the established chain of
command, it will be seen as both detrimental to the agenda
of the meeting ... as well as insubordinate.” (ECF 60 ¶ 119).
Loucks then removed the three sections and submitted the
report to the board. (ECF 60 ¶ 120).
*4 After receiving Loucks's February 12 email, Plaintiff
reported to Hwang that Loucks had threatened her with a
charge of insubordination and said that she would be filing an
EEOC charge in response. (ECF 60 ¶ 121). Hwang responded
later that day and said Loucks was entitled to make any
changes as he saw fit to Plaintiff's board report and, with
respect to the EEOC charge, that she “was disappointed
that [Plaintiff] fe[lt] the need to take this matter outside
of CMA, but that is your right.” (ECF 60 ¶¶ 123-124).
Hwang then sent an email with a letter titled “Litigation
Hold Notice and Document Preservation Instructions” to the
CMA Board of Directors. (ECF 60 ¶ 125). The Litigation
Hold Notice stated that Plaintiff was claiming race and
gender discrimination and a hostile work environment, 3
claims which were “unfounded,” and asked recipients to
preserve documents related to Plaintiff and Loucks. (ECF 60
¶¶ 126-129). Hwang's Litigation Hold Notice did not require
preservation of documents concerning Plaintiff and Dadian.
(ECF 60 ¶ 130).
On March 16, 2022, Hwang emailed the Board of Directors,
informing them that the investigation into Plaintiff's claims
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had concluded, that Loucks would soon be in touch to share
the findings, and that Plaintiff was on leave from CMA. (ECF
60 ¶ 133). The next day, Hwang emailed Plaintiff to notify
her that the investigation had concluded and asked for a good
time to discuss the results. (ECF 60 ¶ 134). Plaintiff replied
by email on March 18, 2022, stating that Walker had already
shared the results of the “sham” investigation with her over
the phone, which cleared Loucks of any wrongdoing, and
asked that the results be emailed to her for future use with the
NYC Commission on Human Rights and the EEOC. (ECF 60
¶ 135).
On April 1, 2022, Loucks emailed Plaintiff a termination
letter which stated that she was being terminated because,
among other things: (1) Plaintiff objected to Loucks's
leadership by writing to Hwang and seeking his resignation
for “mishandling [her] racial harassment complaint” and
editing a board report; and (2) Plaintiff reached out to Hwang
and accused her, Washington, and Loucks of “being complicit
in covering up” Dadian's actions. (ECF 60 ¶¶ 135, 140).
E. After Plaintiff's Termination
After Plaintiff's termination, Loucks directed all CMA staff
to give a prepared statement to anyone inquiring about the
circumstances of Plaintiff's termination. (ECF 60 ¶ 152). The
prepared statement said that Plaintiff was no longer with
CMA, and that Seyfarth Shaw LLP had investigated Plaintiff's
claims and found no claim was true. (ECF 60 ¶ 152). Hwang
also directed the Board of Directors to re-direct all inquiries
regarding Plaintiff's termination to Loucks. (ECF 60 ¶ 153).
On April 5, 2022, Walker sent a cease-and-desist letter to
Plaintiff that reads in relevant part:
It has come to CMA's attention that over the past
few weeks, including while you were still employed by
CMA, you have been making untrue and defamatory
statements about CMA, its employees and Board Executive
Committee. Among other things, you have accused CMA,
its Executive Committee and executives of being complicit
in covering up discrimination.... We are aware that you
have made these false and defamatory statements verbally
in telephone conversations and by email. The purpose
of this letter is to demand that you immediately cease
and desist from this conduct. Making such statements is
unlawful under New York law.
...
You have informed us (as well as the recipients of
your defamatory comments) that you have commenced
an action with the City Commission on Human Rights
and the Equal Employment Opportunity Commission.
These agencies will investigate your discrimination claims
and are appropriate venues for your claims and nothing
contained in this letter is intended to interfere with your
continuing to pursue your claims with these agencies
or to pursue any claims or otherwise communicate with
or cooperate with any other public body as defined by
New York State's Whistleblower Law. We look forward to
rebutting your claims in the appropriate forum.
*5 ...
To avoid potential litigation over these issues, you must
also provide CMA with a sworn, written statement
confirming that you will cease and desist from making
any more false and defamatory statements and publications
regarding CMA and anyone associated with the CMA
(including specifically Kevin Kwan Loucks); that you will
cease encouraging Funders and others from doing business
with CMA and that you will return all CMA property and
information in your possession without retaining copies of
such information. Failure to do so may result in litigation.
Please do not hesitate to let me know if you have any
questions about this very serious matter. I look forward to
hearing from you and receiving your affidavit no later than
Friday, April 15, 2022. We hope that we can count on your
cooperation so that litigation will not be necessary.
(ECF 92-1) (emphasis in original). 4 In June 2022, four
members of the Board of Directors circulated a letter
expressing their concern with how Plaintiff's complaints of
race discrimination and harassment had been handled. (ECF
60 ¶ 159). Dadian was then promoted to “Associate Director
of Grant Programs.” (ECF 60 ¶ 160).
III. PROCEDURAL HISTORY
Plaintiff originally filed this action in state court on December
28, 2022. (ECF 1-1). Defendants then removed the case to
federal court on March 26, 2023, (ECF 1), and Judge Torres
referred it to me for General Pretrial Management. (ECF
7). Plaintiff filed their FAC on April 19, 2023. (ECF 60).
Defendant Walker filed a motion to dismiss as to himself,
(ECF 79), and the CMA Defendants filed a separate motion to
dismiss, (ECF 81), both on July 29, 2024. On July 31, 2024,
Judge Torres issued an amended referral order, referring to
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me the pending motions to dismiss. (ECF 84). The motions to
dismiss were fully briefed on August 30, 2024.
IV. DISCUSSION
A. Standard of Review
When deciding a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), the Court must accept all
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor. McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The
Court's function on a motion to dismiss is “not to weigh
the evidence that might be presented at trial but merely to
determine whether the complaint itself is legally sufficient.”
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).
If the plaintiff has stated “enough facts to state a claim to
relief that is plausible on its face,” the complaint should
not be dismissed. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the
reasonable inference that the defendant[s] [are] liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). For a claim to sufficiently “raise a right to relief
above the speculative level,” it must be grounded on factual
allegations. Twombly, 550 U.S. at 555. A claim grounded on
mere suspicion is not enough to meet this standard. Id. Nor
is mere consistency with the facts as pleaded sufficient to
cross the line between a possibility and plausibility. Id. at
557. “ ‘[L]abels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’ Nor does
a complaint suffice if it tenders ‘naked assertion[s]’ devoid
of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555, 557) (internal citation
omitted, alteration in original). “ ‘A litigant cannot merely
plop ‘upon information and belief’ in front of a conclusory
allegation and thereby render it non-conclusory.” JPMorgan
Chase Bank, N.A. v. 29-33 Ninth Avenue, LLC, No. 22-
CV-3865 (JPO), 2024 WL 68527, at *10 (S.D.N.Y. Jan. 5,
2024) (quoting Citizens United v. Schneiderman, 882 F.3d
374, 384 (2d Cir. 2018)).
*6 Generally, “[w]hen considering a motion to dismiss,
the Court's review is confined to the pleadings themselves,”
because “[t]o go beyond the allegations in the [c]omplaint
would convert the Rule 12(b)(6) motion to dismiss into one
for summary judgment pursuant to [Rule] 56.” Thomas v.
Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273,
275 (S.D.N.Y. 2002) (citation omitted). However, “the Court's
consideration of documents atached to, or incorporated by
reference in the [c]omplaint, and maters of which judicial
notice may be taken, would not convert the motion to dismiss
into one for summary judgment.” Id. (citations omited);
Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021); Maroney
v. Woodstream Corp., 695 F. Supp. 3d 448, 453 (S.D.N.Y.
2023). “Where a document is not incorporated by reference,
a court may never[the]less consider it where the complaint
‘relies heavily upon its terms and effect,’ thereby rendering
the document ‘integral’ to the complaint... For a document to
be integral to the complaint, the plaintiff must ‘rel[y] on the
terms and effect of a document in drafting the complaint...
mere notice or possession is not enough.” U.S. ex rel Foreman
v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021); see also Dwyer
v. Allbirds, Inc., 589 F. Supp. 3d 137, 147-48 (S.D.N.Y.
2022) (considering documents atached to defendant's motion
to dismiss where they “formed the factual basis for most of
the allegations in the Amended Complaint”).
B. Claims Against Defendant Walker
As an initial matter, the Court will address Plaintiff's claims
against Defendant Walker, as he raised unique defenses in his
motion to dismiss.
Generally, “under New York law an attorney cannot be
held liable to third parties for injuries caused by services
performed on behalf of a client or advice offered to that client,
absent a showing of fraud, collusion, or a malicious or tortious
act.” Farrell v. Hellen, 03-CV-4083 (JCF), 2004 WL 433802,
at *5 (S.D.N.Y. Mar. 10, 2005) (internal citations omitted);
see also Ottah v. Bracewell LLP, 21-CV-455 (KPF), 2021 WL
5910065, at *10 (S.D.N.Y. Dec. 10, 2021). The complained
of act of the attorney must be “either tortious in character
or go beyond the scope of his honorable employment.”
Newburger, Loeb & Co. v. Gross, 563 F.2d 1057, 1080
(2d Cir. 1977); compare Farrell, 2004 WL 433802 at *6
(“In this case, the acts attributed to Mr. Davis were all,
with one possible exception, attorney services provided to
a client: drafting an affidavit, drafting disciplinary charges,
serving as counsel to a disciplinary board, and providing
representation in court.”); with Alredo Productions, Inc. v.
Sandra Carter Productions, Inc., 03-CV-0790 (CSH) (THK),
2006 WL 453248, at *4-5 (S.D.N.Y. Feb. 22, 2006) (“Plaintiff
does allege facts sufficient to implicate Phillips in fraudulent
conduct... Plaintiff alleges that Phillips had knowledge that
Carter fraudulently manufactured Apropal's invoice, yet
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Phillips made false statements to Plaintiff in order to induce
Plaintiff to pay the invoice... These facts, if properly alleged
in the Complaint, are sufficient to support an allegation that
Phillips was involved in some kind of fraudulent behavior
and was motivated by fraudulent intent.”). New York courts
have routinely come to the same conclusion. See, e.g., Art
Capital, LLC v. Neuhaus, 70 A.D.3d 605, 606 (1st Dept. 2010)
(“Moreover, it is recognized that public policy demands that
attorneys, in the exercise of their proper functions, shall not
be civilly liable for their acts when performed in good faith
and for the honest purpose of protecting the interests of their
clients... [W]e find that plaintiffs’ causes of action are not
viable because all of the aforementioned acts fall completely
within the scope of defendant's duties as an attorney.”).
Defendant Walker is an attorney licensed to practice in New
York and retained by the CMA Defendants to “look into the
issues [Plaintiff] raised” concerning her racial discrimination
and harassment claims, (ECF 60 ¶¶ 54, 111), and Walker
sent Plaintiff the cease-and-desist letter on behalf of CMA
Defendants after her termination. (ECF 60 ¶ 158). Plaintiff
argues that because Walker “is alleged to have actually made
the threat,” (ECF 85 at 17), his actions constitute personal
involvement and are violations of NYCHRL §§ 8-107(19)
and 8-107(6). Plaintiff fails to plead any facts, however, that
suggest that Walker in any way acted outside the scope of
his employment as CMA Defendants’ attorney. Because the
only allegations as to Walker involve services he performed
for CMA Defendants that fall within the scope of his duties
at an attorney, Walker cannot be held individually liable. See
Farrell, 2004 WL 433802 at *6; Art Capital, 70 A.D.3d at
606.
*7 Accordingly, Defendant Walker's motion to dismiss the
FAC as to himself should be GRANTED. The following
will discuss Plaintiff's remaining claims against the CMA
Defendants.
C. Section 1981 Retaliation Claim
To state a claim for retaliation under § 1981, a plaintiff
must plausibly allege that: (1) the plaintiff participated in a
protected activity; (2) the defendant knew of the protected
activity; (3) the plaintiff suffered an adverse employment
action; and (4) there is a causal connection between the
plaintiff's protected activity and the adverse employment
action. Moore v. Hadestown Broadway Ltd. Liab. Co., 722
F. Supp. 3d 229, 246 (S.D.N.Y. 2024); see also Mitura v.
Finco Services, Inc., 712 F. Supp. 3d 442, 459 (S.D.N.Y.
2024). A protected activity includes any opposition by
an employee to what they reasonably and in good faith
believe is an unlawful employment practice that violates anti-
discrimination laws. Trotter v. National Football League,
737 F. Supp. 3d 172, 182 (S.D.N.Y. 2024). “Complaining
to a supervisor, instituting litigation, or filing a formal
complaint about the defendant's discriminatory conduct are
each considered protected activities.” Moore, 722 F. Supp.
at 246. However, to qualify as a protected activity, the
“employee's opposition must be directed at an unlawful
employment practice of his employer.” Trotter, 737 F. Supp.
at 188 (internal quotations omitted).
Courts construe “adverse employment action” to encompass
anything that “could well dissuade a reasonable worker from
making or supporting a charge of discrimination.” Lee v.
Riverbay Co., --- F. Supp. 3d ---, 22-CV-7504 (LTS), 2024
WL 4312166, at *8 (S.D.N.Y. Sept. 27, 2024). Termination
qualifies as an adverse employment action. Moore, 722 F.
Supp. at 247. Generally, an employer's failure to investigate
a complaint of discrimination is not considered an adverse
employment action. Fincher v. Depository Trust and Clearing
Corp., 604 F.3d 712, 721 (2d Cir. 2010). However, a failure
to investigate may be an adverse employment action where
the failure to investigate itself is in retaliation for a separate
protected activity. Rogers v. Fashion Institute of Tech., 14-
CV-6420 (AT), 2016 WL 889590, at *5 (S.D.N.Y. Feb. 26,
2016).
A causal connection between the protected activity and the
adverse employment action “may be established through
evidence of retaliatory animus directed against a plaintiff by
a defendant, or by showing that the protected activity was
closely followed in time by the adverse action.” Mitura, 712
F. Supp. at 459. A plaintiff must “plausibly allege that the
retaliation was a but-for cause of the employer's adverse
action, which does not require that retaliation was the only
cause of the employer's action, but only that the adverse action
would not have occurred in the absence of the retaliatory
motive.” Lee, 2024 WL 4312166 at *8 (internal quotations
omitted).
i. Plaintiff Has Pleaded Her
Participation in Protected Activity
While not entirely clear from the parties’ briefing, Plaintiff
appears to allege at least two instances where she engaged
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in protected activities: (1) Plaintiff's initial complaint to
Loucks about Dadian's hostile behavior toward her, which she
believes was due to her race; and (2) Plaintiff's complaint to
Hwang about Loucks's failure to respond to her complaints
about racial harassment from Dadian. Plaintiff's initial
complaint to Loucks cannot be a protected activity, because
the underlying action that Plaintiff was opposing was that of
an employee of the company, not an unlawful employment
practice committed by her employer. See Trotter, 737 F.
Supp. at 188. However, Plaintiff's subsequent complaints to
Hwang alleging that she was facing racial discrimination
and her immediate supervisor, Loucks, had failed to act
and was therefore complicit, may well constitute a protected
activity. While Plaintiff only brings retaliation claims under
§ 1981, the Court notes that under a § 1981 discrimination
claim, a supervisor's failure to act after becoming aware of
racial discrimination by employees may result in liability
for discrimination. See Thompson v. Shutterstock, Inc., 23-
CV-4155 (JGLC), 2024 WL 2943813, at *17 (S.D.N.Y. June
10, 2024). Thus, Loucks's failure to respond to Plaintiff's
complaints of racial discrimination by Dadian may have
reasonably been interpreted by Plaintiff as an unlawful
employment practice, and reporting this to Hwang constitutes
a protected activity. Knowledge of this protected activity is
undisputed, as Plaintiff exchanged several emails with Hwang
about the issue, and Hwang later sent a litigation hold to the
company regarding Plaintiff's claims.
ii. Plaintiff Has Pleaded That She
Suffered an Adverse Employment Action
*8 Having determined a protected activity exists, we now
turn to whether Plaintiff suffered an adverse employment
action. Plaintiff appears to propose three adverse employment
actions: (1) Loucks’ failure to properly investigate her claims
of racial harassment; (2) her termination from CMA and
(3) the cease-and-desist letter sent by Walker on behalf of
the CMA Defendants. Loucks's failure to investigate cannot
constitute an adverse employment action because the general
failure to investigate is not sufficient to be an adverse
employment action, and Loucks's failure to investigate here is
not alleged to be in retaliation for a separate protected activity.
See Fincher, 604 F.3d at 721; Rogers, 2016 WL 889590
at *5. Plaintiff's termination from CMA clearly qualifies as
an adverse employment action. See Moore, 722 F. Supp. at
247. Finally, the cease-and-desist letter sent after Plaintiff's
termination does not constitute an adverse employment
action. The letter instructed Plaintiff to cease and desist from
making false and defamatory statements about CMA, from
discouraging funders from supporting CMA, and directing
her to return all CMA property in her possession. The letter
also explicitly states that it is not intended to interfere with
any claims to the New York City Commission on Human
Rights and the Equal Employment Opportunity Commission.
Without more, this letter, which clearly intended to carve
out any protected activity, cannot be said to “well dissuade
a reasonable worker from making or supporting a charge
of discrimination,” and thus does not constitute an adverse
employment action. See Lee, 2024 WL 43121656 at *8. Thus,
the only adverse employment action Plaintiff has plausibly
alleged is her termination from CMA.
iii. Plaintiff Has Pleaded Causation
Finally, we turn to causation between the protected activity
and the adverse employment action. Plaintiff first complained
to Hwang about Loucks's handling of her race discrimination
complaints on January 6, 2022. After an internal investigation
and being placed on leave, Plaintiff received a termination
letter from Loucks on April 1, 2022. This three-month
period between Plaintiff's protected activity and the adverse
employment action supports a finding of a causal relationship.
See Trotter, 737 F. Supp. at 189-190 (“The Second Circuit
has not drawn a bright line defining, for the purposes of a
prima facie case, the outer limits beyond which a temporal
relationship is too attenuated to establish causation, but it
has previously held that five months is not too long to find
the causal relationship.”) (internal quotations omitted). There
is also evidence of retaliatory animus, as the termination
letter directly refers to Plaintiff's protected activity: “You
objected to my leadership of CMA. For example, on February
12, 2022, you wrote to [Hwang] seeking my resignation
for, among other things, mishandling your racial harassment
complaint...” (ECF 60 ¶ 140). Taken together, Plaintiff has
pleaded sufficient facts such to plausibly infer a causal
connection between Plaintiff's complaint to Hwang and her
later termination.
iv. Defendants Washington and Grim
In sum, (1) Plaintiff engaged in a protected activity when
she complained to Hwang that Loucks was mishandling her
racial harassment complaint; (2) CMA Defendants knew of
the protected activity because Hwang herself corresponded by
email with Plaintiff about these issues; (3) Plaintiff suffered
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an adverse employment action by being terminated from
CMA; and (4) there is a causal connection between Plaintiff's
complaint to Hwang and her termination.
However, not all of the CMA Defendants can be held liable
under § 1981. “An individual may be held liable for retaliation
under Section 1981 if that individual is personally involved
in the alleged deprivation.” Thompson, 2024 WL 2943813 at
*18. As alleged, of the CMA Defendants, only CMA, Loucks,
and Hwang appear to be involved in Plaintiff's termination.
The FAC is devoid of any factual allegation to suggest that
Defendants Washington or Grim were personally involved
in the decision to fire Plaintiff. The only allegations with
respect to Washington and Grim are that Plaintiff sent them
a letter detailing her issues with Loucks after receiving an
unsatisfactory response from Hwang, and Plaintiff admits
that neither Washington nor Grim “respond[ed] to or even
acknowledge[d] receipt of Plaintiff Shindé’s email,” (ECF
60 ¶ 107), and conclusorily alleges that the Executive
Committee, of which Washington and Grim were members,
had “been involved” in Plaintiff's firing. However, Hwang
was also the Chair of the Executive Committee, (ECF 60 ¶
45), and the FAC makes no representation as to how many
members are on the Executive Committee or how many of
its members were involved in Plaintiff's termination. Without
more, the FAC contains insufficient facts such that it would
not be reasonable to infer that Washington or Grim were
involved and thus liable for retaliation under § 1981.
*9 Accordingly, the CMA Defendants’ motion to dismiss
Plaintiff's § 1981 retaliation claim (Count IV) should be
GRANTED with respect to Defendants Washington and
Grim and DENIED with respect to Defendants CMA,
Loucks, and Hwang.
D. NYCHRL Claims
Plaintiff also brings claims under Sections 8-107(7), (6), and
(19) of the NYCHRL. The Court will address each in turn.
i. Retaliation Under NYCHRL § 8-107(7)
In addition to their retaliation claim under § 1981, Plaintiff
brings a claim for retaliation under Section 8-107(7) of the
NYCHRL. Because the “NYCHRL is sufficiently distinct
from its federal and state counterparts,” NYCHRL claims
“must be analyzed separately and independently.” Edelman
v. NYU Langone Health System, 708 F. Supp. 3d 409, 436
(S.D.N.Y. 2023).
A defendant is liable for retaliation under § 8-107(7) if they
“retaliate or discriminate in any manner against any person
because such person has opposed any practice forbidden
under this chapter.” NYCHRL § 8-107(7). To state a claim,
a plaintiff must show (1) they have engaged in protected
activity; (2) the defendant was aware of the protected activity;
(3) the plaintiff suffered an adverse action based on the
protected activity; and (4) a causal connection between
the protected activity and the adverse action. Benzinger v.
NYSARC, Inc. New York City Chapter, 385 F. Supp. 3d
224, 240 (S.D.N.Y. 2019). “The NYCHRL's definition of
retaliation is broader than its federal and state counterparts”
and requires a Plaintiff to show “she took an action opposing
her employer's discrimination, and that, as a result, the
employer engaged in conduct that was reasonably likely to
deter a person from engaging in such action.” Bloise v. Q4
Generational Wealth, Inc., 22-CV-10488 (JHR) (SDA), 2023
WL 11836897, at *10 (S.D.N.Y. Nov. 22, 2023); see also
Edelman, 708 F. Supp. 3d at 436. “Also, the NYCHRL's
causation element is more forgiving than the Title VII's,
since the plaintiff need not show but-for causation under the
City law. Rather, causation is met so long as the action was
motivated ‘at least in part’ by a retaliatory motive.” Edelman,
708 F. Supp. 3d at 436.
Here, for the same reasons that sustain Plaintiff's § 1981
claims, Plaintiff has plausibly alleged retaliation under
NYCHRL § 8-107(7). Plaintiff engaged in protected activity
when she reported to Hwang that Loucks was mishandling
her racial discrimination complaints. Defendant knew of
this activity because Hwang herself responded to Plaintiff's
emails. Plaintiff suffered an adverse action when she was
terminated from CMA. Finally, Plaintiff has plausibly pleaded
a causal connection between her complaint to Hwang and her
termination because of the temporal relationship between the
two events (only three months), and her termination letter
specifically cites to Plaintiff's complaint letter to Hwang as a
reason for firing her.
For the reasons described above, however, Plaintiff's claims
fail as to Defendants Washington and Grim, as the
FAC contains insufficient facts to show “direct, personal
involvement” in the alleged retaliation. See Ogleton v. City of
New York, 21-CV-6889 (PGG) (OTW), 2023 WL 3012027,
at *2 (S.D.N.Y. Feb. 17, 2023), report and recommendation
adopted, 21-CV-6889 (PGG) (OTW), 2023 WL 2731735
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(S.D.N.Y. Mar. 31, 2023) (“Plaintiff does not allege that
Defendant La Rocca knew of or participated in the hostile
work environment that he was allegedly subjected to, or that
she discriminated or retaliated against him... Accordingly,
Plaintiff's NYSHRL and NYCHRL claims against Defendant
La Rocca must be dismissed.”).
*10 Accordingly, CMA Defendants’ motion to dismiss
Plaintiff's retaliation claims under NYCHRL § 8-107(7)
(Count I) should be GRANTED with respect to Defendants
Washington and Grim and DENIED with respect to
Defendants CMA, Loucks, and Hwang.
ii. Aiding and Abetting Under NYCHRL § 8-107(6)
“To state a claim for aiding and abetting unlawful
discrimination or retaliation, a plaintiff must plead that the
defendant actually participated in the unlawful conduct of the
principal actor.” Nezaj v. PS450 Bar and Restaurant, 719 F.
Supp. 3d 318, 333 (S.D.N.Y. 2024); Doe v. Yeshiva Uni., 703
F. Supp. 3d 473, 507 (S.D.N.Y. 2023). The defendant must
also “share the intent or purpose of the principal actor.” Nezaj,
719 F. Supp. 3d at 333.
As the CMA Defendants raised in their motion to dismiss,
Plaintiff's claims for aiding and abetting are brought against
the alleged principal actors of the underlying retaliation. As
alleged, these claims cannot stand because Plaintiff cannot
satisfy the elements of aiding and abetting. Plaintiff cannot
plead, for instance, that Loucks was a participant that shared
the intent or purpose of his own actions—to hold otherwise
would allow any plaintiff to double the liability of a defendant
by bringing claims against them for unlawful discrimination
or retaliation under § 8-107(7) and aiding and abetting
themselves under § 8-107(6). The language of the statute itself
reads: “It shall be an unlawful discriminatory practice for
any person to aid, abet, incite, compel or coerce the doing
of any of the acts forbidden under this chapter, or to attempt
to do so.” NYCHRL § 8-107(6). Each of the words “aid,”
“abet,” “incite,” “compel,” and “coerce” necessarily imply
an interaction with the actions of another person, meaning
that the principal actor must be a different person from
the one aiding and abetting them. For the same reasons,
Plaintiff's aiding and abetting claim necessarily fails as to
Defendant Hwang; Plaintiff pleads that Hwang's participation
in sending Plaintiff's termination letter constitutes aiding and
abetting, yet this is the same activity that underlies Plaintiff's
retaliation claim against Hwang. Further, Plaintiff pleads in
conclusory fashion that Hwang aided and abetted Loucks
but fails to allege any facts to support this assertion. With
respect to Washington and Grim, who were not involved in the
underlying retaliation, Plaintiff fails to allege any facts that
suggest either defendant was at all involved with the actions
of Loucks and Hwang. While it is possible that Washington
and Grim knew of Loucks's and Hwang's actions and aided
them in some capacity, Plaintiff has failed to plead any such
facts in order to cross the line from possibility to plausibility.
Further, CMA Defendants raise in their reply brief that
Plaintiff failed to respond to CMA Defendant's arguments
for dismissal of these claims in their motion to dismiss. This
alone is sufficient to deem that Plaintiff has waived their claim
under § 8-107(6). See Piuggi v. Good for You Productions
LLC, 739 F. Supp. 3d 143, 168 (S.D.N.Y. 2024) (“Numerous
courts in this District have held that a party's failure to address
an issue in its response to a Rule 12(b)(6) motion amounts to
a concession or waiver of the argument.”) (internal quotations
omitted). By failing to address CMA Defendants’ arguments
entirely, Plaintiff has waived their aiding and abetting claim.
*11 Accordingly, CMA Defendants’ motion to dismiss
Plaintiff's aiding and abetting claim under NYCHRL §
8-107(6) (Count III) should be GRANTED.
iii. Interference with Protected
Rights Under NYCHRL § 8-107(19)
NYCHRL § 8-107(19) provides:
It shall be an unlawful discriminatory
practice for any person to coerce,
intimidate, threaten or interfere with,
or attempt to coerce, intimidate,
threaten or interfere with, any person
in the exercise or enjoyment of, or on
account of such person having aided
or encouraged any other person in the
exercise or enjoyment of, any right
granted or protected pursuant to this
section.
NYCHRL § 8-107(19). “A threat is a required element of
a claim ... for violation of Section 8-107(19). A threat is
the creation of an impression of impending injury.” Cadet v.
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Alliance Nursing Staffing of New York, Inc., 632 F. Supp. 3d
202, 236 (S.D.N.Y. 2022). A plaintiff must show the existence
of an “affirmative threat beyond the adverse employment
action itself.” Id. at 237.
Plaintiff asserts that the cease-and-desist letter constitutes a
threat in violation of § 8-107(19), and relies almost entirely
on a single case, Mitura v. Finco Services, Inc., to support this
assertion. 712. F. Supp. 3d 442 (S.D.N.Y. 2024). In Mitura,
a woman sued her former employer, alleging discrimination
on the basis of gender, age, race, and familial status. Among
other things, the plaintiff argued that when the defendants
learned that plaintiff was going to file a lawsuit against
them, they threatened to seek sanctions against her and to
countersue, claiming disclosure of company salaries in the
complaint would breach her confidentiality obligations. 712
F. Supp. 3d 442, 462 (S.D.N.Y. 2024). The court in Mitura
held that the defendants’ threats of sanctions and countersuit
were intended to coerce and intimidate her into not pursuing
her discrimination claims against the company, and such
conduct violated § 8-107(19). Id.
Here, Plaintiff claims that the CMA Defendants, by sending
Plaintiff the April 2022 cease-and-desist letter, “threatened to
use legal process to coerce and/or intimidate, and/or attempt
to coerce and/or intimidate, Plaintiff Shindé into waiving a
right granted to her” under § 8-107(7). Plaintiff's reliance on
Mitura is misguided. Unlike the broad and severe threat of
sanctions and a countersuit, the cease-and-desist letter here
carefully circumscribes the types of activities that it does and
does not apply to and does not evince an intent to prevent
Plaintiff from exercising her rights. The letter does not make
nearly as broad of a proscription as Plaintiff suggests in their
briefing. (ECF 85 at 16) (“Here, like in Mitura, Plaintiff
plausibly alleges that the CMA Defendants’ purpose or intent
of threatening a lawsuit was to coerce or intimidate her into
ceasing her opposition to practices she believed violated ... §
8-107... The letter expressly stated its purpose was to get her
to stop making such statements.”).
Reading the facts in the light most favorable to Plaintiff,
the letter can hardly be said to evince an intent to coerce or
intimidate Plaintiff into ceasing her opposition to practices
she believe violated the law. Plaintiff argues that the letter
still constitutes a threat because CMA Defendants did not
carve out all other possible protected activities. (ECF 85 at
16). However, CMA Defendants need not carve out every
potential protected activity in their letter in order for a court
to find the letter was not intended as a threat designed to
interfere with Plaintiff's rights under NYCHRL or other laws.
And the letter clearly did not impede Plaintiff from bringing
this lawsuit. Plaintiff pleads no facts that plausibly suggests
that this cease-and-desist letter rises anywhere near the level
of the threats in Mitura.
*12 Accordingly, CMA Defendants’ motion to dismiss
Plaintiff's claims under NYCHRL § 8-107(19) (Count II)
should be GRANTED.
V. CONCLUSION
For the foregoing reasons, I respectfully recommend that (1)
Defendant Walker's motion to dismiss the amended complaint
(ECF 79) be GRANTED; (2) CMA Defendants’ motion to
dismiss (ECF 81) be GRANTED as to Counts II and II; and
(3) CMA Defendants’ motion to dismiss be GRANTED with
respect to Defendants Washington and Grim and DENIED
with respect to Defendants CMA, Loucks, and Hwang as to
Counts I and IV.
VI. OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ.
P. 72(b), the parties shall have fourteen (14) days (including
weekends and holidays) from receipt of this Report to file
written objections. See also Fed. R. Civ. P. 6. A party
may respond to any objections within fourteen (14) days
after being served. Such objections, and any responses to
objections, shall be addressed to the Honorable Analisa
Torres, United States District Judge. Any requests for an
extension of time for filing objections must be directed to
Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN
FOURTEEN (14) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140,
155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d
1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298,
300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58
(2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237–38
(2d Cir. 1983).
SO ORDERED.
All Citations
Slip Copy, 2025 WL 1042284
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Footnotes
1 For the purposes of deciding a motion to dismiss, the Court accepts the complaint's factual allegations as
true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2 Plaintiff identifies as “a person from India, of brown skin color, who speaks English with a foreign accent.” (ECF
60 ¶ 93).
3 Plaintiff's FAC does not claim race or gender discrimination against the Defendants.
4 The block-quoted language is quoted directly from the cease-and-desist letter, which was filed by Defendants
at ECF 92-1. Because Plaintiff relied on the letter in drafting the FAC, it is thus integral to the FAC.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Small v. Garland, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 1226979
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Julie SMALL, Plaintiff,
v.
Merrick B. GARLAND, Attorney
General of the United States, Defendant.
18-CV-5659 (BCM)
|
Signed 03/31/2021
Attorneys and Law Firms
Brenna Ellen Stewart Rabinowitz, Menken Simpson &
Rozger LLP, New York, NY, John A. Beranbaum, Crumiller
P.C., Brooklyn, NY, for Plaintiff.
OPINION AND ORDER
BARBARA MOSES, United States Magistrate Judge.
*1 Plaintiff Julie Small brought this action pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e, et seq., as amended (Title VII), alleging that she
was subject to unlawful sexual harassment, retaliation, and
retaliatory harassment while employed by the Federal Bureau
of Prisons (BOP) at the Metropolitan Correctional Center
(MCC) in Manhattan. 1 Plaintiff alleges that another MCC
employee, Lieutenant Casanova Madison, sexually assaulted
her in an MCC elevator on October 18, 2013 by smacking and
squeezing her buttocks, and – more generally – that she was
forced to endure a sexualized workplace at the MCC.
Plaintiff further alleges that after she reported the elevator
assault to MCC management on November 4, 2013, she was
subject to retaliation by the BOP, including the issuance of
an initial cease-and-desist letter prohibiting her from further
interaction with Madison, followed by a formal letter of
reprimand for using her government computer to exchange
personal emails with Madison. The emails, exchanged in
July 2013, were uncovered during the BOP's investigation of
the elevator incident. Plaintiff was not otherwise disciplined.
Madison, who also received a cease-and-desist letter at the
outset of the investigation, was quickly moved to a different
shift, to reduce any potential interaction with Small, and
ultimately suspended for 30 days as discipline for the elevator
assault, the use of his government computer to exchange
personal emails with Small, and an unrelated incident in
which he “inadvertently” attempted to enter the MCC with a
personal firearm.
Plaintiff further contends that she was passed over for several
promotions between October 28, 2013 and July 19, 2016,
at which point she was in fact promoted. Finally, plaintiff
claims that she was subjected to retaliatory harassment at the
hands of coworkers who made demeaning comments about
her, would not permit her to heat up food, spread lascivious
rumors about her, and on two occasions transported her to the
roof of MCC instead of the floor she requested.
On January 30, 2014, plaintiff filed a complaint of
sexual harassment with the Equal Employment Opportunity
Commission (EEOC), which she later amended to add
retaliation claims. On August 31, 2017, after a seven-day
evidentiary hearing, an EEOC Administrative Judge (AJ)
issued an order in favor of defendant. On March 23, 2018, the
DOJ upheld the AJ's decision. Small filed this action on June
21, 2018.
Now before the Court is defendant's motion for summary
judgment on all three of plaintiff's claims. As to her sexual
harassment claim, defendant argues that to the extent it is
premised on conduct other than the October 2013 elevator
assault, it is barred for failure to exhaust administrative
remedies, because plaintiff's EEOC complaint was limited to
that incident. Even if incidents other than the elevator assault
are considered, defendant contends that the harassment claim
fails on the merits because plaintiff cannot establish severe or
pervasive harassment, nor a continuous and concerted course
of harassment sufficient to alter the conditions of her working
environment. Defendant further contends that the harassment
cannot be imputed to the BOP, because Madison was not
plaintiff's supervisor; because she cannot show that the BOP
knew or should have known of the offensive conduct but
failed to take appropriate corrective action; that the BOP did
take appropriate corrective action, which successfully put an
end to the harassing behavior; and that, even if Madison was
plaintiff's supervisor, the BOP exercised reasonable care to
prevent and promptly correct any sexually harassing behavior.
*2 With respect to plaintiff's retaliation claim, defendant
argues that the cease-and-desist letter issued to both plaintiff
and Madison was not an adverse employment action; that the
formal reprimand she later received (in lieu of a three-day
suspension, as originally recommended by her supervisor)
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was appropriate in light of her personal use of her BOP
email, and not retaliatory; and that she was passed over for
promotions due to legitimate non-retaliatory reasons, with
her October 2016 promotion further belying any claim of
retaliatory failure-to-promote. Finally, defendant argues that
plaintiff's retaliatory harassment claim fails because she does
not allege any instances sufficiently severe to create a hostile
work environment, and the BOP was not adequately notified
of the harassment in a manner that would have enabled
leadership to take remedial action.
For the reasons set forth below, defendant's motion will be
granted to all of plaintiff's claims except the portion of her
retaliation claim premised on the reprimand that she received
for personal use of a BOP computer, which a reasonable jury
could find to have been a pretext for retaliation, and which,
therefore, may proceed to trial. As to plaintiff's harassment
claim, the Court concludes that Madison was not plaintiff's
supervisor; that defendant was not negligent in controlling her
working conditions; that defendant provided an appropriate
avenue for plaintiff to lodge her complaint, which she did
ten days after the incident; and that the BOP promptly
investigated the complaint and took remedial measures. As
to the portion of plaintiff's retaliation claim premised on the
alleged failure to promote, plaintiff has presented no evidence
that retaliatory intent played any role in the promotions that
she did not get – all of which were competitive – while
defendant has presented evidence (including the fact that
she was promoted in October 2016) that there was no such
intent. The Court further concludes that the handful of isolated
incidents that plaintiff complains of following her protected
activity do not rise to the level of a hostile work environment;
consequently, her retaliatory harassment claim also fails.
Accordingly, for the reasons set forth more fully below,
defendant's motion for summary judgment will be denied with
respect to the portion of plaintiff's retaliation claim based on
the issuance of the formal reprimand for personal computer
use, and otherwise granted.
I. BACKGROUND
A. Facts
The relevant facts are taken from (i) defendant's Statement
of Material Undisputed Facts Pursuant to Local Civil Rule
56.1 (Def. 56.1 Stmt.) (Dkt. No. 52); (ii) the Declaration
of Barbara Latham (Latham Decl.) (Dkt. No. 50); (iii) the
Declaration of Rachel L. Doud (Doud Decl.) (Dkt. No. 49),
together with the evidentiary materials attached thereto; (iv)
plaintiff's Response to Defendant's Statement of Material
Undisputed Facts Pursuant to Local Civil Rule 56.1 (Pl.
56.1 Resp.) (Dkt. No. 61); (v) the Declaration of John A.
Beranbaum (Beranbaum Decl.) (Dkt. No. 59), together with
the evidentiary materials attached thereto; and (vi) the Reply
Declaration of Rachel L. Doud (Doud Reply Decl.) (Dkt.
No. 65), together with the evidentiary materials attached
thereto, and the Supplemental Declaration of Barbara Latham
(Latham Supp. Decl.) (Dkt. No. 66), but only to the extent
that these materials respond directly to new material issues
raised in plaintiff's opposition papers. See Bayway Ref. Co. v.
Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226-27 (2d
Cir. 2000) (“reply papers may properly address new material
issues raised in the opposition papers”) (internal citation
omitted); accord Kellman v. Metropolitan Transp. Auth., 8 F.
Supp. 3d 351, 371 n.10 (S.D.N.Y. 2014).
Except where otherwise noted, the facts are undisputed.
Where the material facts are disputed, the Court has, as
required, resolved those disputes in favor of the plaintiff for
purposes of the pending motion. See Benn v. Kissane, 510
F. App'x. 34, 36 (2d Cir. 2013) (summary order) (“a federal
court considering a summary judgment motion must resolve
material factual disputes in favor of the non-moving party.”),
cert. denied, 571 U.S. 820 (2013).
1. BOP's Anti-Discrimination
and Anti-Harassment Policies
*3 The BOP's Anti-Discrimination Policy forbids
discrimination, harassment, and retaliation of any kind,
including sexual harassment, unwelcome sexual advances,
requests for sexual favors, and other verbal or physical
harassment of a sexual nature. Def. 56.1 Stmt. ¶ 12; Pl.
56.1 Resp. ¶ 12. Its Anti-Harassment Policy provides that
“BOP will not tolerate harassing conduct by anyone in
the workplace,” including harassing conduct of a sexual
nature. Def. 56.1 Stmt. ¶ 13; Pl. 56.1 Resp. ¶ 13. These
policies – at least, the versions referenced in defendant's
moving papers, Doud Decl. Ex. C (Dkt. No. 49-3) at
187-99 – did not come into effect until June 16, 2014, ten
months after the October 2013 elevator incident. Id.; Pl.
56.1 Resp. ¶¶ 12-13. However, the BOP's Discrimination
and Retaliation Complaints Processing Policy (Complaints
Processing Policy), which was in place in October 2013,
included a chapter addressing sexual harassment, which
explicitly stated that the BOP “will not condone acts of sexual
harassment or inappropriate behavior by staff or inmates” and
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that “[a]ll employees will be informed that sexual harassment
is prohibited conduct[.]” Doud Reply Decl. Ex. EE (Dkt.
No. 65-1) at US06061-64. The Complaints Processing Policy
also stated that the agency “will not condone retaliation
against the victim or any employee who provided information
related to the allegations,” and that management should
scrutinize employment decisions affecting the victim and
witnesses “during and after the investigation to ensure
such decisions are not based on retaliatory motives.” Id. at
US06062-63. Further, the BOP's February 5, 1999 Standards
of Employee Conduct required that “employees conduct
themselves professionally” and “in a manner which will not
be demeaning to inmates, fellow employees, or others,” and
warned that employees violating the standards may be subject
to sanctions. Def. 56.1 Stmt. ¶ 14; Pl. 56.1 Resp. ¶ 14; Doud
Decl. Ex. E (Dkt. No. 49-5) (Standards of Employee Conduct)
at 2, 7, 9.
Pursuant to the Anti-Harassment Policy, when a BOP
supervisor or management official witnesses or receives
an allegation of harassing conduct, he or she must take
appropriate action to stop the conduct and prevent further
harassing conduct, and must determine (1) whether a “threat
assessment” is needed, and (2) whether to report it to the
warden of the facility for possible referral to the Office of
Internal Affairs (OIA). Def. 56.1 Stmt. ¶ 20; Pl. 56.1 Resp. ¶
20. A threat assessment entails an evaluation by the warden
and, as appropriate, a team of other staff, as to whether a staff
member poses a threat to anyone at the institution. Def. 56.1
Stmt. ¶ 21; Pl. 56.1 Resp. ¶ 21. The relevant written policies
were posted on the BOP's intranet, available to all staff on any
agency workstation. Def. 56.1 Stmt. ¶ 16; Pl. 56.1 Resp. ¶ 16.
In addition to maintaining the written policies summarized
above, the BOP provided its employees with instruction
on its anti-discrimination and anti-harassment policies at
mandatory yearly refresher trainings. Def. 56.1 Stmt. ¶ 17;
Pl. 56.1 Resp. ¶ 17. The slide decks from the 2012 and
2013 trainings include separate slides (in the section of
the deck entitled “Discrimination and the EEO Process”)
covering “Harassment and Hostile Work Environment,”
“Sexual Harassment,” and “Hostile Work Environment.”
Doud Reply Decl. Ex. FF (Dkt. No. 65-2) at US02128-34; id.
Ex. GG (Dkt. No. 65-3) at US02193-96. There are no slide
decks for the 2014 training in evidence, but there are course
outlines for the 2013 and 2014 trainings; they both include
a one-hour timeslot for the subject, “Discrimination and the
EEO Process,” but no further detail. Pl. 56.1 Resp. ¶ 17; Doud
Decl. Ex. C at 173-78.
Catharine Linaweaver, who served as Warden at the MCC
from 2013 to 2014, testified at the EEOC hearing that the
annual trainings covered that the BOP “has a zero tolerance
policy on sexual harassment of any type.” Beranbaum Decl.
Ex. 1 (Dkt. Nos. 59-1 and 59-2) (EEOC Tr.) at 669:14-674:22.
Esker Tatum, who was the MCC Warden from March 2016
through January 2018, also testified that sexual harassment
was covered annually. Doud Decl. Ex. I (Dkt. No. 49-9)
(Tatum Dep. Tr.) at 6:10-11, 9:3-11:17. However, Tyrone
Covington (who at the time of the relevant events was a Senior
Officer Specialist at the MCC and the President of Local
MCC/NY 3148) testified at the EEOC hearing that there was
not “a specific area” discussing sexual harassment, and how
to go about investigating it, during the annual trainings. See
Beranbaum Decl. Ex. 12 (Dkt. No. 59-17) (Covington Decl.)
¶ 1; EEOC Tr. at 651:10-20.
During plaintiff's deposition, when she was asked if sexual
harassment specifically was discussed at the annual trainings,
she testified that she could not remember if it was discussed
each time but she “would think so.” Doud Decl. Ex. A (Dkt.
No. 49-1) (Small Dep. Tr.) at 38:21-39:25. In her motion
papers, however, plaintiff denies that the annual trainings
addressed sexual harassment, pointing to her own equivocal
deposition testimony and Covington's hearing testimony (as
well as other testimony that, upon inspection, does not state
or suggest that the annual trainings did not cover sexual
harassment). Pl. 56.1 Resp. ¶ 17. For purposes of defendant's
summary judgment motion, therefore, the Court accepts that
there is a dispute of fact as to whether sexual harassment was
specifically discussed at each and every annual training.
*4 It is undisputed that wardens received additional
training, including training on sexual harassment, at wardens’
conferences. Def. 56.1 Stmt. ¶ 18; Pl. 56.1 Resp. ¶ 18.
2. Plaintiff and Madison: Background and Roles
Plaintiff Small has been employed by the BOP at MCC since
2009. Def. 56.1 Stmt. ¶ 1; Pl. 56.1 Resp. ¶ 1. From 2009
until September 2016, she worked as a General Schedule
level 7 (GS-7) Medical Records Technician, reporting to the
Assistant Health Service Administrator and, ultimately, the
Health Service Administrator. Def. 56.1 Stmt. ¶ 2; Pl. 56.1
Resp. ¶ 2. Her primary responsibilities included maintaining
medical records of inmates and processing outside requests
for medical information, but, like all other MCC staff, she was
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also responsible for assuming a correctional (or “custody”)
post – i.e., supervising inmates – if needed. Def. 56.1 Stmt.
¶¶ 3-4; Pl. 56.1 Resp. ¶¶ 3-4.
Casanova Madison has been a Lieutenant at MCC since 2010.
Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Resp. ¶ 8. At the time of the events
complained of, Madison was one of 10 to 12 lieutenants
who supervised the correctional officers overseeing inmates
at MCC. Def. 56.1 Stmt. ¶ 9; Pl. 56.1 Resp. ¶ 9.
Madison is not directly in plaintiff's reporting line, and he
has never had the authority to fire or promote her, affect
her benefits, or make any changes to her employment status;
however, when plaintiff worked a custody post, Madison
would directly supervise her for those shifts, including an
estimated 95% of the 47 eight-hour overtime shifts she
worked between October 18, 2012 and on October 18, 2013
(the date of the elevator assault). Def. 56.1 Stmt ¶ 10; Pl.
56.1 Resp. ¶ 10; Latham Decl. ¶¶ 3-6; Beranbaum Decl.
Ex. 2 (Dkt. Nos. 59-3 and 59-4) at 42-43; EEOC Tr. at
42:11-43:11, 48:8-19, 370:22-371:4. When plaintiff worked
a custody post, Madison, as the Activities Lieutenant, had
broad authority to oversee her and the other officers working
custody, including planning, scheduling, and coordinating
their work, re-assigning them to less (or more) desirable
posts, giving orders regarding how duties were carried out,
awarding overtime, skipping employees on the overtime
list, investigating misconduct, recommending employees for
promotions or special awards, and ordering employees to fill a
post to relieve another employee having lunch. Pl. 56.1 Resp.
¶ 10; Covington Decl. ¶¶ 4, 8-13. 2 Plaintiff worked a custody
post either voluntarily or when needed on a limited basis,
including being called to do lunch relief approximately twice
a month. Def. 56.1 Stmt. ¶ 11; Pl. 56.1 Resp. ¶ 11; Small Dep.
Tr. at 156:17-157:7.
3. Work Environment Prior to October 2013 Incident
*5 Beginning in 2010, when she joined the MCC, plaintiff
greeted her colleagues with a hug and a kiss, a practice that
was common among MCC employees. Def. 56.1 Stmt. ¶
96; Pl. 56.1 Resp. ¶ 95. Although plaintiff testified, at the
EEOC proceeding, that it made her uncomfortable, EEOC
Tr. at 47:5-23, she acknowledges that she both initiated and
reciprocated this type of greeting with both male and female
colleagues, including Madison. Def. 56.1 Stmt. ¶¶ 23-24,
97; Pl. 56.1 Resp. ¶¶ 23-24, 96. Plaintiff never informed
any of her colleagues – including Madison – that these
greetings made her uncomfortable. Def. 56.1 Stmt. ¶¶ 24,
98; Pl. 56.1 Resp. ¶¶ 24, 98. At deposition, plaintiff testified
that following the elevator incident with Madison in October
2013, she no longer wanted to greet other employees with a
hug and a kiss, and “just stop[ped] doing it.” Def. 56.1 Stmt.
¶ 100; Pl. 56.1 Resp. ¶ 100. Plaintiff further testified that
she continued engaging in the practice with one male friend
named Cole, even after the elevator incident, but that prior
to the incident, she would exchange physical greetings “a lot
more often.” Small Dep. Tr. at 45:12-46:18.
Prior to the elevator incident, Small heard certain colleagues
comment on the appearance of staff members and what they
were wearing, including Madison, who, among other things,
commented on plaintiff having a “big rear end,” and Captain
Ward, Lieutenant Cruz, Officers Gonzales, Officer Merrick,
Officer Schuppel, and Officer Reyes, all of whom commented
on plaintiff's and other female coworkers’ appearances. Def.
56.1 Stmt. ¶ 101; Pl. 56.1 Resp. ¶ 101; Small Dep. Tr.
at 59:24-60:10, 209:12-211:8. Captain Ward would “always
tell [plaintiff] how pretty [she] was”; Officer Gonzales once
texted her “I want to be with you. Be my girlfriend. I'm in love
with you. You're so beautiful”; and others made comments
to her such as, “Oh, Ms. Small, you're looking good in that
uniform,” “you got a fat behind,” or “you smell good today.”
Def. 56.1 Stmt. ¶ 102; Pl. 56.1 Resp. ¶ 102; Small Dep. Tr. at
216:16-18, 220:1-8; EEOC Tr. at 44:5-12. Plaintiff also heard
an unnamed male officer ask an inmate (in reference to jeans
she was wearing on the day Madison smacked her buttocks),
“Why else would people come in here with tight clothing and
not expect anything?” Pl. 56.1 Resp. ¶ 102; Beranbaum Decl.
Ex. 11 (Dkt. Nos. 59-15 and 59-16) (Small EEOC Dep. Tr.) at
125:17-126:2. When asked about unwanted sexual advances
at deposition, plaintiff testified that officers (some unnamed)
asked her out to eat and for her number, including Officers
Milton Gonzales and Clark Mullens, and that Madison made
(unspecified) unwanted advances, as well. Def. 56.1 Stmt. ¶
103; Pl. 56.1 Resp. ¶ 103; Small Dep. Tr. at 60:23-62:17. With
respect to such comments and advances, plaintiff laughed
them off and the officers “eventually stopped,” but after
Gonzales texted plaintiff that he was in love with her, plaintiff
had her husband respond to him. Def. 56.1 Stmt. ¶ 104; Pl.
56.1 Resp. ¶ 104; Small Dep. Tr. 62:18-25.
Plaintiff also testified that unnamed co-workers spread
rumors that she sent explicit photographs of herself to
Madison and others. Plaintiff's knowledge of these rumors is
based on one conversation that occurred in 2014, in which
a co-worker (whose identity she could not recall) told her
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there was a rumor that she sent a video to Madison. Def.
56.1 Stmt. ¶ 105; Pl. 56.1 Resp. ¶ 105. However, two of
plaintiff's coworkers, Marisol Vega and Tijuana Doctor, stated
in affidavits during the BOP internal investigation of the
October 18, 2013 elevator incident, that there were explicit
photographs of plaintiff “flowing around the building.” Pl.
56.1 Resp. ¶ 105; Beranbaum Decl. Ex. 26 (Dkt. No. 59-31)
at 419, 421.
4. October 2013 Incident
Plaintiff and Madison were friendly acquaintances for at
least a year before October 2013. Def. 56.1 Stmt. ¶¶ 22-24;
Pl. 56.1 Resp. ¶ 22-24. Prior to the October 2013 incident,
they frequently saw each other around MCC, engaged in
conversation, and greeted each other with a hug and a kiss,
with plaintiff both initiating and reciprocating the greeting,
and never complaining that it was unwelcome. Def. 56.1 Stmt.
¶¶ 23-24; Pl. 56.1 Resp. ¶¶ 23-24. A handful of emails from
July 2013, discussed in greater detail below, showed that they,
at least on one occasion, flirted with each other. Def. 56.1
Stmt. ¶¶ 59-61; Pl. 56.1 Resp. ¶¶ 60-62.
*6 On October 18, 2013, plaintiff was in an elevator with
Madison, elevator operator John Alicea, two other MCC
corrections officers, and an inmate. Def. 56.1 Stmt. ¶ 25;
Pl. 56.1 Resp. ¶ 25. The elevator occupants were discussing
plaintiff's recent weight loss. Madison commented, “[y]ou're
losing the weight” and “it looks good.” Def. 56.1 Stmt. ¶
26; Pl. 56.1 Resp. ¶ 26. When the elevator opened on the
third floor, Madison took plaintiff by her right arm, turned
her around, bent her over, slapped and squeezed her buttocks,
saying “Mmm” as he did so. Def. 56.1 Stmt. ¶¶ 26-28; Pl.
56.1 Stmt. ¶¶ 26-28; EEOC Tr. at 71:22-72:25, 423:8-19;
Beranbaum Decl. Ex. 2 at 33; Small EEOC Dep. Tr. at
43:15-44:13.
Plaintiff and Madison spoke again later that day, first in a short
phone call, and then when Madison went to plaintiff's office.
Def. 56.1 Stmt. ¶ 29; Pl. 56.1 Resp. ¶ 29. First, at the urging of
her friend and MCC psychologist, Christina Liberati, plaintiff
called Madison that day, saying, “I need to talk to you about
what you did. [ ] It wasn't right.” Pl. 56.1 Resp. ¶ 29; EEOC
Tr. at 78:8-79:7. Madison then came to her office, where she
was sitting at her desk, put his arm around her, pulled her
up, escorted her into the hallway, and then pleaded with her
not to report the incident. Pl. 56.1 Resp. ¶ 29; Small Dep.
Tr. at 93:5-22. At the EEOC hearing, plaintiff testified that
Madison apologized and said “[p]lease don't report it,” and
“I'll never do that again.” Def. 56.1 Stmt. ¶ 30; Pl. 56.1 Resp.
¶ 29; EEOC Tr. at 79:8-80:21. 3
After the incident, plaintiff reported to work, from October
18, 2013 to November 4, 2013, including voluntary overtime
shifts in correctional services on four separate days. Def. 56.1
Stmt. ¶ 31; Pl. 56.1 Resp. ¶ 30. On November 4, 2013, plaintiff
reported the incident to Warden Linaweaver, and, prior to that,
on October 28, 2013, she reported the incident to the MCC's
Equal Employment Opportunity (EEO) Counselor. Def. 56.1
Stmt. ¶ 32; Pl. 56.1 Resp. ¶ 31; EEOC Tr. at 83:25-85:7;
Beranbaum Decl. Ex. 2 at 14-16. Later, on November 3,
Warden Linaweaver referred plaintiff's complaint to the OIA
and directed that a threat assessment be conducted. Def. 56.1
Stmt. ¶ 33; Pl. 56.1 Resp. ¶ 32.
5. MCC's Investigation and Responses
a) Threat Assessment and Madison's Shift Change
On November 5, 2013, in response to plaintiff reporting the
elevator incident to Warden Linaweaver, a threat assessment
team was convened and performed an assessment, which,
according to threat assessment team leader, Associate Warden
Charleston Iwuagwu, was incomplete as the team failed to
interview Madison. Def. 56.1 Stmt. ¶ 34; Pl. 56.1 Resp. ¶ 33;
EEOC Tr. at 958:1-8, 992:23-993:8. The threat assessment
team submitted a report (the Threat Assessment Report) of
their findings and recommendations to Warden Linaweaver
on November 19, 2013. Def. 56.1 Stmt. ¶ 35; Pl. 56.1 Resp.
¶ 34; Doud Decl. Ex. L (Dkt. No. 49-12) at 73-77.
The Threat Assessment Report stated that staff were not
threatened or exposed to danger but cease and desist
letters should be issued to both plaintiff and Madison to
avoid further interaction between them, and recommended
a further investigation be performed. Def. 56.1 Stmt. ¶ 36;
Pl. 56.1 Resp. ¶ 35; Threat Assessment Rep. at 73, 77.
Several members of the threat assessment team testified at
the EEOC hearing that they were concerned about Small
and other female staff continuing to be around Madison,
and thus had recommended, in internal threat assessment
team meetings, that Madison be placed on home duty and
his shift be changed to avoid contact with plaintiff, even
though those recommendations did not make it into the
Threat Assessment Report. Pl. 56.1 Resp. ¶¶ 34-35; EEOC
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Tr. at 586:3-587:2, 590:1-594:8, 602:10-603:2, 609:1-20,
965:14-971:25. Consistent with the recommendations in the
Threat Assessment Report, cease and desist memoranda were
issued to Madison on November 6, 2013, and Small on
January 10, 2014. Def. 56.1 Stmt. ¶ 37; Pl. 56.1 Resp. ¶ 36;
Doud Decl. Ex. L at 79; id. Ex. C at 165.
*7 The cease and desist memoranda were intended to
prevent plaintiff and Madison from coming into contact and
interfering with ongoing investigations, and to ensure both
could continue to perform their jobs. Def. 56.1 Stmt. ¶ 38;
Pl. 56.1 Stmt. ¶ 37. Covington testified that he “would
believe that it [the cease and desist memorandum] would
be” maintained in plaintiff's personnel file for an unknown
number of months or years and could be used as a record
in any future incidents; however, he did not know this for a
fact. Pl. 56.1 Resp. ¶ 38; EEOC Tr. at 652:9-653:13. Latham,
the Human Resources Manager, testified that cease and desist
letters are not maintained in personnel records. Latham Supp.
Decl. ¶¶ 3-4. 4
Madison was off duty, using a combination of sick leave, days
off, annual leave, and holiday leave, or on special assignment
(working in the phone room and emergency preparedness
office) from November 2, 2013 until January 12, 2014 when
he returned to his regular duties as activities lieutenant. Def.
56.1 Stmt. ¶¶ 42-43; Pl. 56.1 Resp. ¶¶ 41-42; Doud Decl. Ex. P
(Dkt. No. 49-16) at 22-23; EEOC Tr. at 1230:4-1234:5. When
Madison returned to his regular duties, he was moved to a
different shift (the evening shift), to reduce potential overlap
with plaintiff, although plaintiff still saw Madison at least
twice a week following the shift change. Def. 56.1 Stmt. ¶
40, 43; Pl. 56.1 Resp. ¶ 39, 42; EEOC Tr. at 136:7-137:3,
1320:5-16, 1322:21-24.
Additionally, on November 10, 2013, plaintiff took a 45-
day medical leave of absence, due to emotional distress from
Madison's assault, which was made worse because everyone
at MCC knew about the incident and asked her questions
about it, including inmates. Def. 56.1 Stmt. ¶ 41; Pl. 56.1
Resp. ¶ 40; EEOC Tr. at 114:24-115:15; Beranbaum Decl.
Ex. 25 (Dkt. No. 59-30) at 3-4; Doud Decl. Ex. B (Dkt.
No. 49-2) at 718:21-719:12. After the October 2013 incident,
plaintiff's communications with Madison were limited. They
talked a few times on the phone, but only when Madison
called plaintiff's department to let them know overtime
was available and plaintiff answered the phone, or when
plaintiff initiated calls to see if there was overtime available,
with the conversations limited to discussing the overtime
post available. Def. 56.1 Stmt. ¶ 48; Pl. 56.1 Resp. ¶ 47;
Beranbaum Decl. Ex. 9 (Dkt. No. 59-12) (Madison EEOC
Dep. Tr.) at 85:17-87:16.
In February 2014, plaintiff was assigned to Correctional
Services for two weeks while staff participated in annual
training. Def. 56.1 Stmt. ¶ 44; Pl. 56.1 Resp. ¶ 43. During that
entire two-week period, Madison worked the same shift as
plaintiff and was her supervisor, but he was instructed to make
arrangements for the other lieutenant on duty to make rounds,
and to avoid interaction with plaintiff, which was successful
as plaintiff did not see or speak to Madison at any point during
the two-week assignment. Def. 56.1 Stmt. ¶¶ 45-47; Pl. 56.1
Resp. ¶¶ 44-46; Small Dep. Tr. at 154:6-155:18; EEOC Tr. at
133:2-135:4, 728:10-729:15.
Plaintiff is unable to identify any specific instances after
February 2014 when Madison was one of the lieutenants on
duty while she was assigned to a custody post. She testified
that she's “pretty sure that it happened,” but did not know
“the exact dates.” Def. 56.1 Stmt. ¶ 49; Pl. 56.1 Resp. ¶
48; Small Dep. Tr. at 159:6-17, 188:15-189:7. Madison has
not made rounds in plaintiff's unit at any point since the
October 2013 incident, except when responding to body
alarms on two or three occasions. Def. 56.1 Stmt. ¶ 50; Pl.
56.1 Resp. ¶ 49; Madison EEOC Dep. Tr. at 92:2-93:7; EEOC
Tr. at 347:7-348:2. Madison has not behaved inappropriately
towards plaintiff at any point since the October 2013 incident.
Def. 56.1 Stmt. ¶ 51; Pl. 56.1 Resp. ¶ 50.
b) OIA Investigation
*8 In addition to the threat assessment, an internal
investigation of the October 2013 incident was conducted
by Special Investigative Agent Mary Wade-Jones with the
OIA, on referral from Warden Linaweaver. Def. 56.1 Stmt. ¶¶
52-55; Pl. 56.1 Resp. ¶¶ 51-54.
Madison told Wade-Jones that plaintiff had previously sent
him several emails and photographs that were sexual in
nature. Def. 56.1 Stmt. ¶ 56; Pl. 56.1 Resp. ¶ 55. Wade-Jones
recounted this in an email to Brian Barrick (an OIA Special
Agent), reporting that Madison alleged that plaintiff made
“several sexual advances” towards him, sent him several
explicit emails and photographs of herself, and that she had
been doing so for a year, with the emails and photographs
stored on his hard drive. Pl. 56.1 Resp. ¶ 55; Beranbaum
Decl. Ex. 30 (Dkt. No. 59-35). Further, Madison informed
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Wade-Jones that he believed plaintiff had asked a computer
services employee to erase the information from his hard
drive. Pl. 56.1 Resp. ¶ 55; Beranbaum Decl. Ex. 30. In a
sworn statement to Wade-Jones, Madison also reported that
plaintiff sent him “valentine lollipop grams,” and emails that
were “flirtations.” Def. 56.1 Stmt. ¶ 57; Pl. 56.1 Resp. ¶ 56.
Based on these reports from Madison, Wade-Jones obtained
approval for, and conducted, an email search. Def. 56.1 Stmt.
¶ 58; Pl. 56.1 Resp. ¶ 57. The search uncovered two non-
work-related email chains between plaintiff and Madison,
sent on the BOP system on July 16, 2013. Def. 56.1 Stmt.
¶ 59; Pl. 56.1 Resp. ¶ 58. In the first of the two chains,
plaintiff sent an email to Madison, stating, “AWWWWWW
I just heard the sweetest thing I am very flattered, I went to
Brooklyn today and a very nice neighbor of mine told me that
someone here, who is a lt. has a crush on me:):):).” Def. 56.1
Stmt. ¶ 60; Pl. 56.1 Resp. ¶ 59 (grammar as in the original).
Madison responded to that email with, “LOL, I [sic] going to
smack the HELL out of hear [sic].:).” Id. (grammar as in the
original.) In another email, Madison told plaintiff, “DON'T
GET SPOOKED!” to which Small responded, “nope I'm not
if you and i [sic] were single boy oh boy,” to which Madison
responded, “DAM, I no [sic] baby.” Id. (grammar as in the
original.) Plaintiff also emailed a photograph of herself to
Madison, in which she was wearing a dress below her knees
at an office party. Def. 56.1 Stmt. ¶ 61; Pl. 56.1 Resp. ¶ 60.
The photograph is a normal picture of plaintiff smiling. Doud
Decl. Ex. L at 68.
Wade-Jones completed her investigation on April 7, 2014
and concluded that Madison had inappropriately touched
plaintiff's buttocks. Def. 56.1 Stmt. ¶¶ 62-63; Pl. 56.1 Resp.
¶¶ 61-63. Wade-Jones also found, based on the non-work-
related emails that plaintiff and Madison exchanged via BOP
computers, that both had misused government computers in
violation of the Standards of Employee Conduct. Def. 56.1
Stmt. ¶ 64; Pl. 56.1 Resp. ¶ 64. 5
*9 The BOP Standards of Employee Conduct provide that
government property is to be used for authorized purposes
only. However, “authorized purposes” include “personal
use of Government office equipment such as computers,”
provided there is only a “negligible cost to the Government.”
Def. 56.1 Stmt. ¶ 65; Pl. 56.1 Resp. ¶ 65; Standards of
Employee Conduct at 12. 6 Emails of a sexually explicit
nature violate the policy, even if the number of emails
exchanged is de minimis. Def. 56.1 Stmt. ¶ 66; Pl. 56.1 Resp.
¶ 66. 7
Wade-Jones further concluded that plaintiff had exhibited
a lack of candor, because she initially denied sending a
photograph of herself to Madison. Def. 56.1 Stmt. ¶ 67; Pl.
56.1 Resp. ¶ 67. When Wade-Jones confronted her with the
picture, plaintiff responded that she had simply forgotten
about it, given that the email was sent over a year ago.
Pl. 56.1 Resp. ¶ 56; EEOC Tr. 153:11-24. Barrick reviewed
Wade-Jones's investigation and directed her to remove the
proposed finding against plaintiff for lack of candor as there
was insufficient evidence that plaintiff had been purposefully
deceitful. Def. 56.1 Stmt. ¶¶ 68-69; Pl. 56.1 Resp. ¶¶ 68-69.
The OIA sustained the charges against Madison for
unprofessional conduct of a sexual nature and against both
Madison and plaintiff for misuse of government computers.
Def. 56.1 Stmt. ¶ 70; Pl. 56.1 Resp. ¶ 70.
c) 2016 Disciplinary Action Against Plaintiff and Madison
On April 12, 2016, over two years after Wade-Jones
completed her investigation, plaintiff's supervisor issued
a letter recommending that she be suspended for three
days for misuse of a government computer, and explained
that the Warden would make the final decision on the
proposed discipline. Def. 56.1 Stmt. ¶ 71; Pl. 56.1 Resp.
¶ 72. Plaintiff's counsel objected to the proposed three-day
suspension on the grounds that plaintiff had used government
computers for personal reasons just twice in over two years,
a negligible amount; the disciplinary action was retaliatory
for plaintiff's sexual harassment complaints; the proposed
three-day suspension was so delayed (over two years after
the investigative report) as to be punitive; and the three-
day suspension conflicted with the standards promulgated by
the Merit Systems Protection Board with respect to federal
employee misconduct. Def. 56.1 Stmt. ¶ 72; Pl. 56.1 Resp. ¶
73; Beranbaum Decl. Ex. 31 (Dkt. No. 59-36). The Warden
at the time, Tatum, made the final disciplinary determination
on September 6, 2016, electing not to suspend plaintiff but
instead issuing her a letter of reprimand. Def. 56.1 Stmt. ¶ 72;
Pl. 56.1 Resp. ¶ 73. The letter of reprimand was to be removed
from plaintiff's personnel file after no more than two years.
Def. 56.1 Stmt. ¶ 73; Pl. 56.1 Resp. ¶ 74.
On October 19, 2016, based on the October 2013 elevator
incident, the exchange of non-work-related emails with
plaintiff, and a March 5, 2014 incident in which Madison
attempted to enter MCC with his personal firearm in his
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bag, Madison's supervisor recommended that he be removed
from his position. Def. 56.1 Stmt. ¶ 74; Pl. 56.1 Resp. ¶ 75.
On May 8, 2017, Warden Tatum issued an adverse action
letter to Madison, stating that he found the charges against
Madison supported by the evidence, and had decided to
suspend Madison for thirty days. Def. 56.1 Stmt. ¶ 75; Pl.
56.1 Resp. ¶ 76. Warden Tatum testified at his deposition that
he elected not to terminate Madison because he had a good
work record, there had not been any further incident, and
Madison had taken responsibility for his actions. Def. 56.1
Stmt. ¶ 76; Pl. 56.1 Resp. ¶ 77; Doud Decl. Ex. I (Dkt. No.
49-9) at 78:8-79:13. However, through the BOP investigation
and at his EEOC deposition (on February 10, 2017), Madison
continued to deny that the October 2013 elevator incident
occurred, rather than take responsibility for it. Pl. 56.1 Resp.
¶ 77; Madison EEOC Dep. Tr. at 1, 39:17-41:4; Doud Decl.
Ex. L at 31.
6. Plaintiff's Applications for Promotions
*10 Between plaintiff reporting the October 2013 incident
and the filing of this lawsuit on June 21, 2018, plaintiff applied
for 23 positions at the BOP, all of which would have been
promotions or had the potential for promotion to a higher
GS level. Def. 56.1 Stmt. ¶ 80; Pl. 56.1 Resp. ¶ 81. On July
19, 2016, she was selected for a promotion to a Correctional
Systems Officer, a GS-8 position, effective September 4,
2016. Def. 56.1 Stmt. ¶ 5; Pl. 56.1 Resp. ¶ 5.
When a job opening at the BOP is posted, applications are
submitted to the USA Jobs website, and then transmitted to
the BOP's consolidated human resources processing office in
Grand Prairie, Texas, which determines which applicants are
qualified for the job and compiles a list of “best qualified”
applicants, as well as a list of applicants who are excepted
from merit-based promotion processes because they already
hold, or have held, a position at the same level. Def. 56.1
Stmt. ¶¶ 77-78; Pl. 56.1 Resp. ¶¶ 78-79. Those lists are then
provided to the appropriate personnel at the facility where
the position is located, at which point facility personnel may
perform reference checks, or vouchering, using a prescribed
form. Def. 56.1 Stmt. ¶ 79; Pl. 56.1 Resp. ¶ 80.
Of the 23 positions plaintiff applied for during the relevant
time period, she was on the “best qualified” list for eight of
them, and the “exception to merit promotion” list for two.
Def. 56.1 Stmt. ¶ 81; Pl. 56.1 Resp. ¶ 81. The first selection
decision for a position for which plaintiff was on the “best
qualified” list and not selected was made on October 20, 2014,
more than 11 months after she reported the October 2013
incident; 18 other BOP employees were identified as eligible
for that position. Def. 56.1 Stmt. ¶¶ 82-83; Pl. 56.1. Resp. ¶¶
82-83. The next selection decision where plaintiff was on the
“best qualified” list but not selected was made on May 26,
2015; 27 other employees were identified as eligible for that
position. Def. 56.1 Stmt. ¶ 84; Pl. 56.1 Resp. ¶ 84. No further
details are provided with respect to these two positions.
Thomas Bergami and Herman Quay and were the
selecting officials for two additional positions that plaintiff
unsuccessfully applied for. Def. 56.1 Stmt. ¶¶ 86, 90; Pl.
56.1 Resp. ¶¶ 86, 89. Bergami, the Associate Warden at
Metropolitan Detention Center in Brooklyn (MDC) from
2014 to 2016, was the selecting official in 2015 for a position
for which plaintiff applied and was not selected. Def. 56.1
Stmt. ¶ 86; Pl. 56.1 Resp. ¶ 86. For that position, nine
employees (including plaintiff) were on the “best qualified
list” and 11 more were on the “exception to merit” list or
the disabled veterans preference list. Def. 56.1 Stmt. ¶ 87;
Pl. 56.1 Resp. ¶ 86. In making the selection, Bergami was
unaware of whether there was any EEO activity by any of the
applicants, as the information was not provided or considered
in the selection process, but Bergami did not know whether
or not the two officials who conducted plaintiff's reference
check learned about her prior EEO activity. Def. 56.1 Stmt. ¶
88; Pl. 56.1 Resp. ¶ 87; Doud Decl. Ex. V (Dkt. No. 49-22)
at 4-5. Bergami selected the person for the position who he
determined would be the best fit for the open position and who
he believed was more qualified for the job than plaintiff or
any other applicant. Def. 56.1 Stmt. ¶ 89; Pl. 56.1 Stmt. ¶ 88.
Quay, the Warden at the MDC from December 2015 through
May 2019, was the selecting official in 2016 for a position for
which plaintiff applied but was not selected. Def. 56.1 Stmt.
¶ 90; Pl. 56.1 Resp. ¶ 89. For that position, 10 employees,
including plaintiff were on the “best qualified” list and
another 11 were on the “exception to merit” list. Def. 56.1
Stmt. ¶ 91; Pl. 56.1 Resp. ¶ 90. Quay selected “several
individuals” for the position to which plaintiff applied, all of
whom were already working at MDC at the time they received
their promotions. Def. 56.1 Stmt. ¶ 92; Pl. 56.1 Stmt. ¶ 91. 8
During his 24 years working for the BOP, Quay never heard
the issue of whether an applicant has filed an EEO or any
other sort of complaint raised in connection with the BOP's
reference checking process for promotions. Def. 56.1 Stmt. ¶
93; Pl. 56.1 Resp. ¶ 92. 9
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*11 Tatum selected plaintiff for the promotion she received
in 2016. Def. 56.1 Stmt. ¶ 94; Pl. 56.1 Resp. ¶ 93. During his
26-year career with the BOP, he was not aware of any instance
in which the issue of whether an applicant had made an EEO
complaint came up in connection with any selection process
in which he was involved. Def. 56.1 Stmt. ¶ 95; Pl. 56.1 Resp.
¶ 94.
Neither party points to any of plaintiff's other job applications
as relevant to the summary judgment motion.
7. Work Environment After Plaintiff
Reported October 2013 Incident
Plaintiff alleges that she was subject to retaliatory harassment
from coworkers at MCC after she reported the October 2013
incident. On March 7, 2014 she submitted a letter to Regional
Director Norwood in which she stated, inter alia, that “[s]ince
I have reported the sexual assault I have been outcast and
retaliated against.” Def. 56.1 Stmt. ¶ 106; Pl. 56.1 Resp.
¶ 106. Norwood never responded to her. Pl. 56.1 Resp. ¶
106; EEOC Tr. at 167:22-168:9. Her letter was forwarded to
Executive Assistant Lewis (who also served as MCC's human
resources manager), who met with plaintiff twice to discuss
her concerns. Def. 56.1 Stmt. ¶ 107; Pl. 56.1 Resp. ¶ 107;
EEOC Tr. at 672:22-673:9.
During the meetings between plaintiff and Lewis on March
14 and 17, 2014, plaintiff did not identify any specific staff
members who had retaliated against her, or any specific
instances of co-worker retaliation. Def. 56.1 Stmt. ¶ 108; Pl.
56.1 Resp. ¶ 108. Lewis's report does not indicate whether
plaintiff was specifically asked to identify specific staff
members. Pl. 56.1 Resp. ¶ 108; Doud Decl. Ex. Y (Dkt. No.
49-25).
Plaintiff's March 7, 2014 letter also referenced the incident
on March 5, 2014, when Madison attempted to bring his
personal firearm into the MCC facility, stating “I feel as if Lt.
C. Madison's attempt to introduce a loaded firearm into the
institution was a direct attempt to physically harm me.” Def.
56.1 Stmt. ¶ 109; Pl. 56.1 Resp. ¶ 109. The BOP's Office of the
Inspector General (OIG) investigated that incident, examined
whether it had any connection to plaintiff, and did not find
any evidence that it did. Def. 56.1 Stmt. ¶ 110; Pl. 56.1 Resp.
¶ 110.
Several instances of conduct that plaintiff characterizes
as retaliatory harassment by coworkers occurred following
plaintiff's report of the October 2013 incident. Beginning
in 2014, one coworker would not let her heat up her food,
although he did not say anything to her about the incident with
Madison when he prevented her from doing so (it is unclear
whether he prevented her from doing so once or multiple
times). Def. 56.1 Stmt. ¶ 111; Pl. 56.1 Resp. ¶ 111; Small Dep.
Tr. at 134:13-16, 135:16-136:6.
On two occasions when plaintiff was in the elevator, it
inexplicably went up to the inmate recreation area on the roof,
which she would have no cause to visit and where she was left
for an unspecified period of time. Def. 56.1 Stmt. ¶ 111; Pl.
56.1 Resp. ¶ 111; Small Dep. Tr. at 133:14-134:21. Plaintiff
describes these incidents as “[j]ust dumb things.” Small Dep.
Tr. at 134:18-135:7. Other times, when she was waiting for
the elevator, the person controlling it would deliberately skip
floors where she was waiting. Def. 56.1 Stmt. ¶ 111; Pl.
56.1 Resp. ¶ 111; Small Dep. Tr. at 133:9-135:15. The record
does not contain further details or specific instances of this
occurring.
*12 Plaintiff also thought there were instances where her
name was skipped when employees were called for overtime
or her overtime pay was improperly calculated, though she
did not know when that occurred and did not identify who
was responsible. Def. 56.1. Stmt. ¶ 111; Pl. 56.1 Resp. ¶
111. Further, there was an incident where she was not paid
for about 30 overtime shifts, which required her to request
a review by the Associate Warden. Pl. 56.1 Resp. ¶ 111;
Small Dep. Tr. at 138:25-139:20. The Associate Warden
was “surprised” to discover the issue, and then opened
“this whole big thing” and did “some review” on her chart,
after which she was paid all money owed. Small Dep. Tr.
at 139:15-140:4. Plaintiff was not given an explanation of
what caused the underlying issue and speculated at her
deposition that someone was ripping up the papers reflecting
her overtime. Id. at 140:5-14.
Certain coworkers stopped saying hello to plaintiff, although
at deposition, she could not remember who, explaining that
people “just [weren't] talking to me.” Def. 56.1. Stmt. ¶ 111;
Pl. 56.1 Resp. ¶ 111; Small Dep. Tr. at 133:9-135:15. Plaintiff
also describes three instances of improper comments being
made to her. In one instance, she was standing in an elevator
and an officer told the people there, “Hands up, we wouldn't
want any problems on the elevator.” Pl. 56.1 Resp. ¶ 111;
Small EEOC Dep. Tr. at 113:4-11. In another instance, four
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officers said to her, “I heard those videos are real good,”
apparently referencing a rumor in the institution that she was
sending pornographic videos and naked pictures of herself to
others at the institution. Pl. 56.1 Resp. ¶ 111; Small EEOC
Dep. Tr. at 113:16-23. Finally, in another instance, Officer
Mack Rose told incoming employees, “Don't talk to her.
That's the sexual harassment girl. [ ] She'll report you.” Pl.
56.1 Resp. ¶ 111; EEOC Tr. at 170:8-18, 321:12-322:20.
Plaintiff does not allege any other instances of harassment
after she reported the October 2013 incident.
8. EEOC Proceedings
Plaintiff made initial contact with an EEO counselor on
October 28, 2013. Def. 56.1 Stmt. ¶ 112; Pl. 56.1 Resp. ¶ 112.
She filed a formal Complaint of Discrimination on January
30, 2014. Def. 56.1 Stmt. ¶ 113; Pl. 56.1 Resp. ¶ 113; Doud
Decl. Ex. C at ECF page 5 (EEO Complaint). On the form,
when asked why she believed she was discriminated against,
plaintiff checked boxes marked “Sex,” “Female,” and “Sexual
Harassment.” She also wrote, “See attached document.”
However, neither plaintiff nor defendant has supplied the
attached document to the Court. Plaintiff amended her EEO
Complaint on February 24, 2014 and April 1, 2014, to add
retaliation claims. Def. 56.1 Stmt. ¶ 115; Pl. 56.1 Resp. ¶ 115.
Although the record in this case does not include the
attachment to plaintiff's original EEO Complaint, or her
amendments, her claims before the EEOC were summarized
by EEO Officer Mina Raskin on May 14, 2014, as follows:
• On October 18, 2013, you allege that you were subjected
to sexual harassment when the Lieutenant [Madison]
grabbed and squeezed your buttocks as he exited the
elevator. Additionally, you allege that the Lieutenant
came to your office later that day, telling you not to report
the incident. (Original allegation)
• On January 10, 2014, you allege that you were
issued a Cease and Desist letter and informed that
the Lieutenant would not be scheduled on the same
shift with you. However, he was Activities Lieutenant
on evening watching during your scheduled shift.
(Amended allegation)
• On March 10, 2014, you allege that you were referred
for Special Investigative Services (SIS) investigation for
Lack of Candor and Misuse of Computer. (Amended
allegation)
Doud Decl. Ex. C at 21-23. It thus appears that plaintiff's
harassment claim, as presented to the EEOC, was limited to
the October 2013 elevator incident and Madison's visit to her
office later that day.
*13 An evidentiary hearing was held before AJ Monique
Roberts of the EEOC on January 30 and 31 and February 1, 2,
3, 4, and 10, 2017. Def. 56.1 Stmt. ¶ 116; Pl. 56.1 Resp. ¶ 116;
see also Doud Decl. Ex. M (Dkt. No. 49-13) (AJ Decision)
at 2. 10 On August 31, 2017, AJ Roberts issued a written
decision in favor of the BOP. Id. at 17. 11 Plaintiff's counsel
did not receive the AJ Decision until February 22, 2018. Def.
56.1 Stmt. ¶ 117; Pl. 56.1 Resp. ¶ 117. On March 23, 2018,
the Complaint Adjudication Officer issued the DOJ's Final
Order upholding the AJ Decision, as well as a Memorandum
Explaining the Final Order. Def. 56.1 Stmt. ¶ 118; Pl. 56.1
Resp. ¶ 118; Doud Decl. Ex. Z (Dkt. No. 49-26).
B. Procedural History
Plaintiff filed this action on June 21, 2018. (Dkt. No. 1.) On
December 12, 2018, the parties consented to my jurisdiction
for all purposes. (Dkt. No. 23.) Following the completion
of discovery, defendant moved for summary judgment on
September 20, 2019. (Dkt. Nos. 48-52.) Plaintiff filed her
opposition papers on November 17, 2019. (Dkt. Nos. 59-61.)
Defendant filed his reply papers on December 6, 2019. (Dkt.
Nos. 64-66.)
II. DISCUSSION
A. Legal Standards
1. Summary Judgment Standards
A court may grant a motion for summary judgment “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Holt v. KMI-Cont'l, Inc., 95 F.3d
123, 128-29 (2d Cir. 1996). The moving party bears the initial
burden of informing the court of the basis for the motion and
identifying those portions of the record that demonstrate the
absence of a genuine dispute as to any material fact. Fed.
R. Civ. P. 56(c); Celotex, 477 U.S. at 322; Koch v. Town of
Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). In evaluating
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the record, the court must construe the evidence in the light
most favorable to the non-moving party and must draw all
reasonable inferences in the non-moving party's favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d
Cir. 2008).
If the moving party meets his initial burden, the burden then
shifts to the non-moving party to establish a genuine dispute
of material fact. Celotex, 477 U.S. at 322; Beard v. Banks, 548
U.S. 521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683
(2d Cir. 2001). The non-moving party must present specific,
admissible evidence in support of his contention that there
is a genuine dispute as to the material facts. Celotex, 477
U.S. at 324; see also Jeffreys v. City of New York, 426 F.3d
549, 553-54 (2d Cir. 2005); D'Amico v. City of New York, 132
F.3d 145, 149 (2d Cir. 1998) (nonmoving party must offer
“some hard evidence showing that its version of the events
is not wholly fanciful”). Furthermore, the evidence must be
sufficient to permit a reasonable jury to return a verdict in
the non-moving party's favor. Anderson, 477 U.S. at 242,
248. Thus, “conclusory statements, conjecture, or speculation
by the party resisting the motion will not defeat summary
judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.
1996).
*14 In this District, these principles are incorporated into
Local Civil Rule 56.1, which requires that a party moving
for summary judgment submit a statement with numbered
paragraphs setting forth “the material facts as to which
the moving party contends there is no genuine issue to
be tried.” The opposing party must specifically controvert
each numbered paragraph of the movant's statement in a
corresponding paragraph of its own. Local Civil Rule 56.1(c).
If the opposing party fails to do so, that paragraph is deemed
admitted. Id.; see also Giannullo v. City of New York, 322
F.3d 139, 140 (2d Cir. 2003) (if the non-moving party fails
to submit a Rule 56.1 counter-statement, all material facts
offered by the movant, if supported by the record, will
be deemed admitted); Galasso v. Eisman, Zucker, Klein &
Ruttenberg, 310 F. Supp. 2d 569, 574 (S.D.N.Y. 2004) (“If
a party opposing a motion for summary judgment does
not submit a Rule 56.1 Statement, the factual assertions
contained in the movant's Statement are deemed admitted and
uncontroverted.”). Each statement by the moving or opposing
party, “including each statement controverting any statement
of material fact, must be followed by citation to evidence
which would be admissible, set forth as required by Fed. R.
Civ. P. 56(c).” Local Civil Rule 56.1(d). “A genuine dispute of
fact does not exist merely because a litigant makes conclusory
allegations to raise a dispute, particularly if the underlying
evidence contradicts the litigant's assertion.” Blue v. City of
New York, 2018 WL 1136613, at *2 (S.D.N.Y. Mar. 1, 2018).
Thus, where a plaintiff disputes a fact asserted by the moving
defendant, courts considered whether the plaintiff cites to
admissible evidence and whether the cited evidence supports
the plaintiff's assertion. Id.
2. Sexual Harassment
“Title VII prohibits an employer from ‘discriminat[ing]
against any individual with respect to [her] compensation,
terms, conditions, privileges of employment, because of,’
inter alia, ‘such individual's ... sex.’ ” Redd v. N.Y. Div. of
Parole, 678 F.3d 166, 174-75 (2d Cir. 2012) (quoting 42
U.S.C. § 2000e-2(a)(1)). “A plaintiff seeking relief for sex
discrimination can proceed under two theories: (1) ‘quid pro
quo’ and (2) ‘hostile work environment.’ ” Kotcher v. Rosa
and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir.
1992). 12
“In order to prevail on a claim that sexual harassment caused a
hostile work environment in violation of Title VII, a plaintiff
must establish two elements.” Howley v. Town Stratford,
217 F.3d 141, 153 (2d Cir. 2000). “First, the plaintiff must
show that the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult ... that is sufficiently severe
or pervasive to alter the conditions of the victim's employment
and create an abusive working environment.’ ” Id. (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal
quotation marks omitted)). “Second, the plaintiff must show
that ‘a specific basis exists for imputing the conduct that
created the hostile work environment to the employer.’ ”
Howley, 217 F.3d at 153 (quoting Perry v. Ethan Allen, Inc.,
115 F.3d 143, 149 (2d Cir. 1997)).
a) Administrative Exhaustion
“Before bringing a Title VII action in the district court,
an aggrieved employee is required to exhaust [her]
administrative remedies.” Fernandez v. Chertoff, 471 F.3d 45,
54 (2d Cir. 2006). “A court may only entertain Title VII claims
that were raised in or are reasonably related to the claims in
the plaintiff's EEOC charge.” Fleming v. Verizon N.Y., Inc.,
419 F. Supp. 2d 455, 462 (S.D.N.Y. 2005) (citing Deravin
v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003)). “The Second
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Circuit has recognized only three circumstances in which
claims not alleged in an EEOC charge are sufficiently related
to the charge to be asserted in the civil action: (1) where the
claim concerns conduct that would fall within the scope of
the EEOC investigation that can reasonably be expected to
grow out of the charge; (2) where the claim alleges retaliation
for filing the EEOC charge; or (3) where the claim concerns
further incidents of discrimination carried out in precisely
the same manner alleged in the EEOC charge.” Id. (citing
Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (citation
omitted)). “[T]he burden of pleading and proving Title VII
exhaustion lies with defendants and operates as an affirmative
defense.” Hardaway v. Hartford Public Works Dep't, 879 F.3d
486, 491 (2d Cir. 2018). Additionally, “discrete prior acts”
not timely alleged in an EEOC charge may nonetheless, in an
appropriate case, “be used as ‘background evidence in support
of a timely claim.’ ” Cusher v. Mallick, 2020 WL 109510, at
*13 (N.D.N.Y. Jan. 9, 2020) (quoting Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
b) Severe and Pervasive Discrimination
*15 As to the first element, the kinds of conduct that may
be actionable as sexual harassment include “[u]nwelcome
sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature.” Redd, 678 F.3d
at 175 (quoting Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57, 65 (1986)). “[W]hether an environment is ‘hostile’
or ‘abusive’ can be determined only by looking at all the
circumstances.” Id. (quoting Harris, 510 U.S. at 23).
These may include the frequency
of the discriminatory conduct; its
severity; whether it is physically
threatening or humiliating, or a
mere offensive utterance; and whether
it unreasonably interferes with an
employee's work performance. The
effect on the employee's psychological
well-being is, of course, relevant
to determining whether the plaintiff
actually found the environment
abusive. But while psychological
harm, like any other relevant factor,
may be taken into account, no single
factor is required.
Harris, 510 U.S. at 23. A plaintiff “need not show that her
hostile working environment was both severe and pervasive;
only that it was sufficiently severe or sufficiently pervasive, or
a sufficient combination of these elements, to have altered her
working conditions.” Redd, 678 F.3d at 175 (quoting Pucino
v. Verizon Communications, Inc., 618 F.3d 112, 119 (2d Cir.
2010) (emphasis in the original)).
“[D]irect contact with an intimate body part constitutes one
of the most severe forms of sexual harassment.” Redd, 678
F.3d at 177. (quoting Worth v. Tyler, 276 F.3d 249, 268 (7th
Cir. 2001)). A single instance of intentional groping can
defeat a motion for summary judgment as to a hostile work
environment claim. See Dillon v. Ned Mgmt., Inc., 85 F. Supp.
3d 639, 663 (E.D.N.Y. 2015) (finding that a single incident
where a co-worker “made direct contact with ... [plaintiff's]
buttock was sufficient to constitute the creation of a hostile
work environment”); Stathatos v. Gala Resources, LLC, 2010
WL 2024967, at *5 (S.D.N.Y. May 21, 2010) (finding that
plaintiff's allegation that a coworker “intentionally groped her
buttocks can alone defeat defendants’ motion for summary
judgment”).
However, “Title VII is not ‘a general civility code.’ ”
Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d
Cir. 2001) (quoting Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998)). “[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms
and conditions of employment.” Id. (quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 778 (1998) (citation
and internal quotation marks omitted)). “The incidents of
allegedly offensive conduct must also be ‘more than episodic;
they must be sufficiently continuous and concerted in order to
be deemed pervasive.’ ” Id. (quoting Perry, 115 F.3d at 149
(citation and internal quotation marks omitted)).
c) Imputing Conduct to Employer
As to the second element, “[w]here the hostile environment
is created by a nonsupervisory coworker, the employer is
liable only if it was negligent in controlling the working
conditions.” Hoag v. Fallsburg Central School Dist., 279 F.
Supp. 3d 465, 480 (S.D.N.Y. 2017) (citing Vance v. Ball State
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Univ., 570 U.S. 421, 424 (2013)). “An employee is considered
a supervisor ‘only when the employer has empowered that
employee to take tangible employment actions against the
victim, i.e., to effect a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a change in benefits.’ ” Id. (quoting Vance, 570
U.S. at 431-32). “The employer's vicarious liability for
nonsupervisory coworkers depends on a showing that the
employer knew, or reasonably should have known, about the
harassment but failed to take appropriate remedial action.” Id.
(citing Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir.
2004)). “The appropriateness of an employer's action must be
assessed from the totality of the circumstances.” Id. (quoting
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir.
2014) (internal quotation marks omitted)).
*16 However, where the harasser is a supervisor, “[i]f the
supervisor's harassment culminates in a tangible employment
action, the employer is strictly liable. But if no tangible
employment action is taken, the employer may escape
liability by establishing, as an affirmative defense: (1) that
the employer exercised reasonable care to prevent and correct
any harassing behavior, and (2) that the plaintiff unreasonably
failed to take advantage of the preventative or corrective
opportunities that the employer provided.” Vance, 570 U.S.
at 424.
3. Retaliation
“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). “First,
the plaintiff must establish a prima facie case,” by showing:
“(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.” Id. (quoting
McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir.
2001)). At the summary judgment stage, the burden of proof
for a prima facie case “has been characterized as ‘minimal’
and ‘de minimis.’ ” Id. (quoting Woodman v. WWOR-TV, 411
F.3d 69, 76 (2d Cir. 2005)) (internal quotation marks omitted).
The Court's role in determining whether this initial burden is
satisfied at the summary judgment stage is “to determine only
whether proffered admissible evidence would be sufficient to
permit a rational finder of fact to infer a retaliatory motive.”
Id.
If the plaintiff sustains the initial burden, a presumption of
retaliation arises and then the “onus falls on the employer to
articulate a legitimate, non-retaliatory reason for the adverse
employment action.” Jute, 420 F.3d at 173. “Finally, as
for the third step, once an employer offers such proof,
the presumption of retaliation dissipates and the employee
must show that retaliation was a substantial reason for the
employment action.” Id.
“To establish an adverse employment action for purposes of
a retaliation claim, ‘[a] plaintiff must show that a reasonable
employee would have found the challenged action materially
adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.’ ” Bowen-Hooks v. City of N.Y., 13
F. Supp. 3d 179, 224 (E.D.N.Y. 2014) (quoting Fincher v.
Depository Trust and Clearing Corp., 604 F.3d 712, 721 (2d
Cir. 2010)). “The anti-retaliation law ‘protects an individual
not from all retaliation, but from retaliation that produces
an injury or harm.’ ” Fincher, 604 F.3d at 721 (quoting
Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53,
68 (2006)). Further, “the alleged acts of retaliation need to
be considered both separately and in the aggregate, as even
minor acts of retaliation can be sufficiently ‘substantial in
gross’ as to be actionable.” Hicks v. Baines, 593 F.3d 159, 165
(2d Cir. 2010).
As to proof of causation, that can be shown either: “(1)
indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment
of fellow employees who engaged in similar conduct; or
(2) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of
Educ., 232 F.3d 111, 117 (2d Cir. 2000). “Title VII retaliation
claims must be proved according to traditional principles of
but-for causation,” which “requires proof that the unlawful
retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.” Univ.
of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013).
*17 “[D]istrict courts within the Second Circuit have
consistently held that the passage of two to three months
between the protected activity and the adverse employment
action does not allow for an inference of causation.” Murray
v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275
(S.D.N.Y. 2007) (collecting cases).
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4. Retaliatory Harassment
“To establish alleged retaliatory harassment by a co-worker,
a Title VII plaintiff must prove, among other things,
that (i) the alleged retaliatory harassment was sufficiently
severe to constitute an adverse change in the terms and
conditions of her employment, and (ii) her employer knew
about but failed to take action to abate the retaliatory
harassment.” Brown v. Henderson, 115 F. Supp. 2d 445,
451 (S.D.N.Y. 2000). The plaintiff must “satisfy the same
standard that governs hostile workplace claims by showing
that the incidents of harassment following complaints were
sufficiently continuous or concerted to have altered the
conditions of [her] employment.” Hahn v. Bank of America
Inc., 2014 WL 1285421, at *22 (S.D.N.Y. Mar. 31, 2014)
(quoting Rasco v. BT Radianz, 2009 WL 690986, at *15
(S.D.N.Y. Mar. 17, 2009)), aff'd 607 F. App'x 55 (2d Cir.
2015).
B. Analysis
1. Sexual Harassment Claim
a) Administrative Exhaustion
As a threshold matter, the parties dispute the scope of
plaintiff's sexual harassment claim properly before this Court.
Defendant contends that to the extent the claim is based
on conduct other than the October 18, 2013 assault by
Madison, plaintiff failed to exhaust it at the EEOC, because
her allegations there extended only to the elevator incident,
and because her “sexualized workplace” allegations, which
involve conduct by other actors, are not sufficiently related
to her EEOC charge to be asserted herein. Def. Mem. at
16-17. Under Fleming, the question is whether these broader
allegations concern “conduct that would fall within the scope
of the EEOC investigation” and that could be reasonably
expected to grow out of the charge she filed regarding the
sexual assault. 419 F. Supp. 2d at 462. Here, plaintiff argues
that the allegations in her Complaint are reasonably related
to her EEOC charge because “a reasonable investigator
examining a situation in which a male superior officer slapped
and grabbed a female subordinate's buttocks would ask what
conditions – both at the institution and in their relationship –
led to such brazenly inappropriate behavior.” Id. a 21-22. 13
*18 This is, in many ways, an academic dispute, because,
as discussed in § II(B)(1)(b) below, the October 18, 2013
assault alone is sufficient for a reasonable jury to conclude
that plaintiff was subject to a hostile work environment.
Nonetheless, I conclude that, to the extent plaintiff's
allegations encompass other conduct by Madison, those
allegations could reasonably be expected to grow out of
her EEOC charge. Her broader allegations of a sexualized
workplace, however, were not implicated by her EEOC
charge (and even if they were properly raised before the
EEOC, they do not rise to the level of severity that supports
a hostile work environment claim).
Plaintiff's EEOC charge focused on the elevator incident with
Madison, and was thereafter amended to include retaliation
stemming from her filing a formal complaint about the
incident. See Doud Decl. Ex. C at 21-23; AJ Dec. at 1-2. 14
Many of plaintiff's allegations relate specifically to arguably
inappropriate behavior by Madison, including that they would
greet each other with a hug and a kiss, which made plaintiff
uncomfortable, Def. 56.1 Stmt. ¶ 99; Pl. 56.1 Resp. ¶ 99;
that Madison would comment on her having a “big rear
end,” as well as on other female coworkers’ appearances,
Def. 56.1 Stmt. ¶ 101; Pl. 56.1 Resp. ¶ 101; that Madison
made unwanted sexual advances towards her, Def. 56.1 Stmt.
¶ 103; Pl. 56.1 Resp. ¶ 103; and that there were rumors
that plaintiff sent explicit photographs of herself to Madison.
Def. 56.1 Stmt. ¶ 105; Pl. 56.1 Resp. ¶ 105. I conclude
that because these incidents concern the same individual
implicated by the EEOC charge, and are similar in nature to
the behavior alleged in the EEOC charge, they “fall within
the scope of the EEOC investigation that can reasonably be
expected to grow out of the charge.” Fleming, 419 F. Supp.
2d at 462. See Rose v. N.Y.C. Bd. of Educ., 257 F.3d 156,
163 (2d Cir. 2001) (finding that an investigation following
an EEOC charge of discrimination involving a specific
individual “could reasonably be expected to inquire into other
instances of alleged discrimination by the same actor”). Even
if plaintiff did not administratively exhaust her claims based
on allegations against Madison beyond the elevator incident,
evidence of that conduct could be admissible as “discrete
prior acts,” which “may be used as ‘background evidence in
support of a timely claim.’ ” Cusher, 2020 WL 109510, at *13
(quoting Nat'l R.R. Passenger Corp., 536 U.S. at 113).
I come to a different conclusion with respect to plaintiff's
allegations against other employees. To accept her argument
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that a reasonable investigator examining a situation where
an individual grabbed another individual's buttocks would
“ask what conditions ... at the institution ... led to such
brazenly inappropriate behavior,” Pl. Mem. at 21-22, would
be to create an exception that would swallow the rule. In
effect, plaintiff asks the Court to adopt a rule whereby
once an allegation of sexual misconduct is raised in an
EEOC proceeding, the plaintiff can then raise any number
of unrelated allegations, concerning conduct by different
employees, in future district court proceedings, so long as
they relate to “conditions ... at the institution.” The Court
declines to adopt such a rule, as “[t]he purpose of the notice
provision, which is to encourage settlement of discrimination
disputes through conciliation and voluntary compliance,
would be defeated if a complainant could litigate a claim
not previously presented to and investigated by the EEOC.”
Miller v. Int'l Telephone & Telegraph, 755 F.2d 20, 26 (2d Cir.
1985), cert. denied, 474 U.S. 851 (1985). See Mathirampuzha
v. Potter, 548 F.3d 70, 77 (2d Cir. 2008) (where “plaintiff's
administrative complaint contain[ed] no reference to repeated
conduct or the cumulative effect of individual acts” but
was “based on [a] single act of abuse,” plaintiff failed
to exhaust administrative remedies with respect to other,
unrelated acts); Lumhoo v. Home Depot USA, Inc., 229 F.
Supp. 2d 121, 134-35 (E.D.N.Y. 2002) (concluding, where
plaintiffs’ administrative complaints consisted of a single,
specific “alleged discriminatory incident,” an investigation
into claims relating to earlier complaints of discrimination or
hostile work environment would not be reasonably expected
to grow out of the administrative complaints).
*19 In any event, as discussed below, the October 18, 2013
incident is sufficient to establish a hostile work environment,
whereas plaintiff's other allegations regarding the work
environment are not sufficiently severe and pervasive to
support a hostile work environment claim.
b) Work Environment
In the Second Circuit, “even a single incident of sexual assault
sufficiently alters the conditions of the victim's employment
and clearly creates an abusive work environment under Title
VII.” Richardson v. New York State Dep't of Correctional
Serv., 180 F.3d 426, 437(2d Cir. 1999) (quoting Tomka v.
Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)) (internal
quotation mark omitted), abrogation on other grounds
recognized by Kessler v. Westchester County Dep't of Social
Servs., 461 F.3d 199, 207 (2d Cir. 2006)); see also Dillon,
85 F. Supp. 3d at 663 (finding that a single incident where
a co-worker “made direct contact with ... [plaintiff's] buttock
was sufficient to constitute the creation of a hostile work
environment”); Stathatos, 2010 WL 2024967, at *5 (finding
that plaintiff's allegation that a coworker “intentionally
groped her buttocks can alone defeat defendants’ motion
for summary judgment”); Reid v. Ingerman Smith LLP, 876
F. Supp. 2d 176, 185-86 (E.D.N.Y. 2012) (concluding that
a single instance of a co-worker “grabbing and squeezing”
one of plaintiff's breasts was enough to defeat summary
judgment because “[i]ntentionally grabbing, squeezing, or
otherwise feeling an intimate part of another's body is vastly
different than brushing against it—whether on purpose or by
accident.”) (collecting cases).
Accordingly, even without taking into account any of
plaintiff's allegations aside from the October 18, 2013 assault,
it is clear that because Madison intentionally slapped and
squeezed her buttocks, in a manner that was not accidental
and involved bending her over, Def. 56.1 Stmt. ¶¶ 25-28;
Pl. 56.1 Resp. ¶¶ 25-28, a reasonable jury could find that
plaintiff suffered a hostile work environment. See Redd, 678
F.3d at 177 (quoting Worth, 276 F.3d at 268) (“Direct contact
with an intimate body part constitutes one of the most severe
forms of sexual harassment.”). Conversely, plaintiff's other
complaints, both those that are barred by the administrative
exhaustion doctrine and those that are not (i.e., those relating
specifically to Madison), are not severe and pervasive enough
(when considered separately from the elevator assault) to
alter the conditions of her employment, especially since, with
respect to the practice of employees greeting each other with
a hug and a kiss, she both reciprocated and initiated the
greeting, never complained that it made her uncomfortable,
and was able to “[j]ust stop” doing it at her will. Def. 56.1
Stmt. ¶¶ 95-100; Pl. 56.1 Resp. ¶¶ 95-100; see Holtz, 258
F.3d at 75 (quoting Faragher, 524 U.S. at 778) (citation and
internal quotation marks omitted) (“[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and
conditions of employment.”).
c) Employer Liability
Having established that a reasonable jury could conclude that
plaintiff was subject to a hostile work environment, the Court
must determine whether “a specific basis exists for imputing
the conduct that created the hostile work environment to the
employer.” Howley, 217 F.3d at 153 (quoting Perry, 115
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F.3d at 149). “Where the hostile environment is created by a
nonsupervisory coworker, the employer is liable only if it was
negligent in controlling the working conditions.” Hoag, 279
F. Supp. 3d at 480.
*20 The parties dispute whether Madison was, in fact, a
supervisory coworker with respect to plaintiff. The Court
concludes that because Madison was not empowered to take
tangible employment actions against plaintiff, i.e., actions
constituting “a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits,” Edwards v. Khalil, 2016 WL
131249, at *14 (S.D.N.Y. Mar. 31, 2016) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)), he was not
plaintiff's supervisor for purposes of Title VII liability.
Plaintiff notes that Vance created an exception to the rule that a
supervisor must be empowered to take a tangible employment
action against the victim, holding that where a modern
organization has abandoned a hierarchical management
structure and confined decision-making power to a small
number of individuals, “[u]nder those circumstances, the
employer may have effectively delegated the power to make
tangible employment actions to the employees on whose
recommendations it relies.” Pl. Mem. at 26-27 (quoting
Vance, 570 U.S. at 446-47). Building on that, plaintiff relies
on Rock v. Blaine, 2018 WL 1415202 (N.D.N.Y. Mar. 20,
2018), which involved the question of whether a prison
lieutenant was a supervisor over the plaintiff. Pl. Mem. at
27-28. In Rock, the lieutenant in question “signed off on
[plaintiff's] annual evaluation and had the authority to give her
orders with regard to how she carried out her duties.” 2018
WL 1415202, at *10. Here, however, there is no evidence
in the summary judgment record suggesting that decision-
makers in the BOP relied on Madison's recommendations (or
that he even made such recommendations) about plaintiff in
making employment decisions.
Further, courts interpreting Vance have rejected arguments
that tie “supervisor status to the ability to exercise significant
direction over another's daily work.” Ward v. Shaddock, 2016
WL 4371752, at *10 (S.D.N.Y. Aug. 11, 2016) (quoting
Vance, 570 U.S. at 431). Neither assigning tasks outside the
plaintiff's job duties, distributing daily work assignments,
recommending discipline to superiors, nor controlling an
employee's hours and assignments within their job description
have been held sufficient to establish supervisor status. Id.
(collecting cases).
In this case, the record on summary judgment shows that,
at most, Madison was intermittently in a managerial role,
when plaintiff worked voluntary overtime or was selected
to augment a custody post, and if he was on shift at the
same time. Def. 56.1 Stmt. ¶¶ 10-11; Pl. 56.1 Resp. ¶¶
10-11; Latham Supp. Decl. ¶ 8. However, the record also
demonstrates that Madison was not in plaintiff's reporting
line, had no control over her benefits and compensation,
was not involved in her evaluations or consideration for
promotions, and was in no greater position to report her
for misconduct or recommend her for awards than any
other employee. Latham Supp. Decl. ¶¶ 11, 13-15. Plaintiff's
primary role, as a Medical Records Technician, involved
reporting to the Assistant Health Service Administrator and
the Health Service Administrator, Def. 56.1 Stmt. ¶ 2; Pl. 56.1
Resp. ¶ 2, and maintaining medical records of inmates, and
thus she was in a different department from Madison, who
was one of the 10 to 12 lieutenants that supervise correctional
officers overseeing inmates. Def. 56.1 Stmt. ¶ 9; Pl. 56.1
Resp. ¶ 9. Accordingly, plaintiff must show that defendant
was negligent in controlling the working conditions at MCC.
*21 “An employer may be negligent where it ‘did not
monitor the workplace, failed to respond to complaints,
failed to provide a system for registering complaints, or
effectively discouraged complaints from being filed.’ ”
Holt v. Dynaserv Indus., Inc., 2016 WL 5108205, at *9
(S.D.N.Y. Sept. 19, 2016) (quoting Vance, 570 U.S. at
449). In this case, the summary judgment evidence shows
that defendant had an anti-discrimination policy in place
that was posted on its intranet, trained wardens regarding
sexual harassment at conferences, and provided annual
refresher training that included (at least in some years) sexual
harassment. Moreover, plaintiff clearly knew how to make a
harassment complaint, and did so, reporting the October 2013
assault to the EEO Counselor ten days after it occurred. Def.
56.1 Stmt. ¶ 32; Pl. 56.1 Resp. ¶ 31. The BOP conducted
a prompt investigation as soon as plaintiff complained, took
immediate steps to minimize contact between plaintiff and
Madison, and effectively put a stop to Madison's harassing
behavior.
Plaintiff feels that Madison's ultimate punishment was
insufficient, and that greater steps should have been taken to
prevent her from seeing him, as they still had some overlap
within the MCC. Def. 56.1 Stmt. ¶ 40; Pl. 56.1 Resp. ¶ 39.
However, their interactions following the elevator incident
appear to have been limited to merely seeing each other in
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passing, Def. 56.1 Stmt. ¶ 43; Pl. 56.1 Resp. ¶ 42, and an
occasional phone call to discuss a custody post. Def. 56.1
Stmt. ¶ 48; Pl. 56.1 Resp. ¶ 47. Even when their shifts
overlapped, when plaintiff was working custody, Madison
was instructed to make arrangements for the other lieutenant
on duty to make the rounds on her unit, and plaintiff does
not contend they interacted during these shifts. Def. 56.1
Stmt. ¶¶ 46-47; Pl. 56.1 Resp. ¶¶ 45-46. After February
2014 (when a two-week annual training resulted in plaintiff
being assigned to correctional services, Def. 56.1 Stmt. ¶
44; Pl. 56.1 Resp. ¶ 43), plaintiff cannot recall any specific
instances where Madison was one of the lieutenants on duty
while she was assigned to a custody post, although she's
“pretty sure it happened.” Def. 56.1 Stmt. ¶ 49; Pl. 56.1 Resp.
¶ 48. 15 Plaintiff concedes that Madison has not behaved
inappropriately towards her, in any way, since the October
2013 incident. Def. 56.1 Stmt. ¶ 51; Pl. 56.1 Resp. ¶ 50.
Plaintiff's contention that Madison's punishment was too light
is not only a subjective opinion; it is “immaterial” because
“there is no requirement that the remedy include punishing
the co-worker responsible for the sexual harassment”; Title
VII “simply requires that the remedial action taken be
reasonably calculated to end the sexual harassment.” Cowan
v. City of Mount Vernon, 2017 WL 1169667, at *6 (S.D.N.Y.
Mar. 28, 2017) (quoting Cooper v. Wyeth Ayerst Lederle,
106 F. Supp. 2d 479, 495 (S.D.N.Y. 2000)). Here, because
defendant's remedial measures successfully prevented further
harassment by Madison, plaintiff cannot show that defendant
was “negligent in controlling the working conditions.” Hoag,
279 F. Supp. 3d at 480; see also Oliver v. N.Y. State
Police, 2020 WL 1989180, at *31 (N.D.N.Y. Apr. 27,
2020) (where the harasser was directed to have no further
supervisory contact with plaintiff and plaintiff did not allege
any further harassment by him after that date, the employer
was not negligent, and summary judgment was warranted,
even though the internal investigation unit disregarded
corroborating testimony of gender discrimination).
Here, the undisputed facts show that Madison was not
plaintiff's supervisor and that defendant – which provided
an avenue for plaintiff to complain when she was sexually
assaulted and then took prompt remedial steps – was not
negligent in controlling the working conditions at MCC.
Defendant is therefore entitled to summary judgment on
plaintiff's sexual harassment claim.
2. Retaliation Claim
*22 Plaintiff's retaliation claim is premised on the following
three incidents, which she contends constituted retaliation for
her having initiated EEOC proceedings following the October
2013 incident: (1) the cease and desist letter that she received,
instructing her to cease further contact with Madison (which
Madison also received); (2) the fact that the OIA investigation
resulted in her being investigated, and ultimately formally
reprimanded for personal use of a BOP computer, which was
uncovered during the course of investigating her complaint of
sexual assault; and (3) jobs for which she applied following
her complaints of harassment, for which she was not selected,
before ultimately being selected for a promotion on July 19,
2016.
a) Retaliation Premised on
Investigation and Disciplinary Action
Title VII “protects an individual not from all retaliation, but
from retaliation that produces an injury or harm.” Fincher,
604 F.3d at 721 (quoting Burlington N., 548 U.S. at 68). Brief
inquiries that do not result in any discipline have been held
to be “trivial harms” or “petty slights or minor annoyances”
that do not support a retaliation claim. Tepperwien Entergy
Nuclear Ops, Inc., 663 F.3d 556, 569-70 (2d Cir. 2011)
(quoting Burlington N., 548 U.S. at 68). Even a “notice of
discipline” is not “a materially adverse employment action”
if it “does not create a materially adverse change in working
conditions.” Mitchell v. SUNY Upstate Med. Univ., 243 F.
Supp. 3d 255, 279-80 (N.D.N.Y. Mar. 17, 2017) (citing Weeks
v. N.Y. State (Div. of Parole), 273 F.3d 76, 86 (2d Cir. 2001),
abrogated on other grounds by Nat'l R.R. Passenger Corp.,
536 U.S. 101)); Lyman v. NYS OASAS, 928 F. Supp. 2d
509, 520 (N.D.N.Y. 2013) (“[T]he issuance of a ‘counseling
memorandum’ and a ‘notice of discipline,’ without any
further evidence regarding a materially adverse effect thereof,
is not an adverse employment action as a matter of law.”).
Here, cease and desist memoranda were issued to both
plaintiff and Madison at the outset of the initial investigation,
instructing them to avoid further interaction with each other.
Def. 56.1 Stmt. ¶¶ 36-37; Pl. 56.1 Resp. ¶¶ 35-36. There
is no evidence in the record that these memoranda carry
any adverse effect on employment. Plaintiff points out
that Associate Warden Iwuagwu, who headed the threat
assessment team, testified that he has since realized that
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handing a cease and desist letter to a complaining employee
is akin to a punishment “by saying you are part of the
problem.” Def. 56.1 Stmt. ¶ 39; Pl. 56.1 Resp. ¶ 38; EEOC
Tr. at 1013:6-20. 16 However, Associate Warden Iwuagwu's
retrospective feelings about the memoranda do not go to
the legal question of whether they amount to a retaliatory
adverse employment action, which depends on whether they
“create a material adverse change in working conditions” or
otherwise “produce[ ] an injury or harm.” Further, Latham
testified, based on personal knowledge, that cease and desist
memoranda are not maintained in personnel records. Latham
Supp. Decl. ¶¶ 1-4. Accordingly, an initial memorandum, at
the outset of an investigation, which tells both the victim and
the accused harasser to cease interacting with each other, and
which is not maintained in personnel records, is not an adverse
employment action that could form the basis of a retaliation
claim on its own.
Plaintiff's complaints about the OIA investigation, however,
include a sufficiently plausible claim of retaliation to
survive summary judgment. The investigation resulted in a
recommendation that plaintiff be suspended for three days
for purported misuse of BOP computers. Def. 56.1 Stmt. ¶¶
58, 64-66, 70-71; Pl. 56.1 Resp. ¶¶ 57, 64-66, 70, 72. This
recommendation was reduced to a formal reprimand only
after plaintiff's attorney became involved, Def. 56.1 Stmt. ¶
72; Pl. 56.1 Resp. ¶ 73, and the reprimand would remain in
her personnel file for up to two years following the date it was
issued, September 6, 2016. Def. 56.1 Stmt. ¶ 73; Pl. 56.1 Resp.
¶ 74. Such an outcome could dissuade a reasonable employee
from lodging a complaint of sexual harassment.
*23 “A formal reprimand can be an adverse action for
purposes of a retaliation claim, ‘even when ... the letter
does not directly or immediately result in any loss of wages
or benefits, and does not remain in the employment file
permanently,’ because ‘it can reduce an employee's likelihood
of receiving future bonuses, raises, and promotions, and it
may lead the employee to believe (correctly or not) that his
job is in jeopardy.’ ” Bowen-Hooks, 13 F. Supp. 3d at 227-28
(quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 165 (2d
Cir. 2011) and collecting cases). This is because, under the
objective standard established by Burlington N., a formal
reprimand “might ... dissuade[ ] a reasonable worker from
making or supporting a charge of discrimination.” MvAvey v.
Orange-Ulster BOCES, 2012 WL 161839, at *2 (S.D.N.Y.
Jan. 18, 2012) (quoting Burlington N., 548 U.S. at 68).
Further, in light of the mandate to consider the alleged acts
of retaliation “both separately and in the aggregate,” as “even
minor acts of retaliation can be sufficiently ‘substantial in
gross’ as to be actionable,” Hicks, 593 F.3d at 165, and
because “[c]ontext matters,” Rivera v. Rochester Genesee
Regional Transp. Auth., 743 F.3d 11, 25 (2d Cir. 2014)
(quoting Tepperwien, 663 F.3d at 568), the Court must
consider that plaintiff only avoided a three-day suspension,
her original recommended punishment, because her attorney
became involved. Def. 56.1 Stmt. ¶ 72; Pl. 56.1 Resp. ¶ 73.
Since the formal reprimand, standing alone, is sufficient to
establish a retaliation claim, plaintiff has met her prima facie
burden by offering sufficient evidence to permit a reasonable
jury to conclude that she was retaliated against for engaging
in protected EEO activity.
Defendant argues that there was no actionable retaliation
because it has articulated a legitimate, non-retaliatory reason
for the reprimand – namely that plaintiff violated the BOP's
computer policy by sending three personal emails to Madison
on BOP equipment. Def. Mem. at 27-30. However, although
the Standards of Employee Conduct state that government
property should be used for authorized purposes only,
personal use of such office equipment is authorized where
“there is only a negligible cost to the Government.” Def.
56.1 Stmt. ¶ 65; Pl. 56.1 Resp. ¶ 65; Standards of Employee
Conduct at 12. Defendant makes no showing that the cost
of those three emails was more than “negligible.” Instead,
defendant notes that emails of a sexually explicit nature
violate the policy, even if the number of emails exchanged
is de minimis. Def. 56.1 Stmt. ¶ 66; Pl. 56.1 Stmt. ¶ 66.
However, plaintiff's emails were not sexually explicit; nor
was the picture she sent, which showed her in a dress below
her knees from a holiday party. Def. 56.1 Stmt. ¶ 61; Pl.
56.1 Resp. ¶ 60; Doud Decl. Ex. L at 68. Moreover, the
letter recommending plaintiff's suspension says noting about
sexually explicit content; rather, it states that she “misused
a government computer to receive and transmit non-work
related messages of an inappropriate nature with a coworker
while on duty,” while citing to the portion of the Standards
of Employee Conduct that explicitly authorizes personal
use of BOP computers so long as the cost to the BOP is
negligible. Doud Decl. Ex. Q (Dkt. No. 49-17); see Standards
of Employee Conduct at 13.
On this record, a reasonable trier of fact could conclude
that defendant's articulated reason for reprimanding plaintiff
was a pretext to mask retaliatory intent, such that summary
judgment is inappropriate as to plaintiff's retaliation claim.
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See Emilla v. Cosmopolitan Club, 936 F. Supp. 2d 229, 249-50
(S.D.N.Y. 2013) (“The apparent inconsistencies between
Defendant's formal disciplinary policies and how Plaintiff
was treated, together with the temporal proximity of Plaintiff's
purported claims and her termination, are enough to create a
triable issue off act as to whether Defendant's stated reason for
[taking an adverse employment action against plaintiff] was
pretextual.”) (collecting cases).
b) Retaliation Premised on Failure to Promote
*24 I reach a different conclusion with respect to plaintiff's
retaliation claim to the extent it is premised on BOP's
purported failure to promote her. “[C]ourts within the Second
Circuit have held that allegations of a failure to promote
quickly do not establish an adverse employment action and,
thus, fail to allege unlawful discrimination.” Hettirachchi v.
County of Suffolk, 2020 WL 5848617, at *19 (E.D.N.Y. Sept.
30, 2020) (collecting cases and emphasis in the original);
see also Ulrich v. Moody's Corp., 2014 WL 12776746, at
*14 (S.D.N.Y. Mar. 31, 2014) (“plaintiff's failure-to-promote
claim cannot survive a motion to dismiss because of the
simple fact that plaintiff actually received a promotion”),
report and recommendation adopted as modified, 2014 WL
4977562 (S.D.N.Y. Sept. 30, 2014). Accordingly, the fact
that plaintiff was selected for a promotion on July 19, 2016,
effective September 4, 2016, Def. 56.1 Stmt. ¶¶ 5, 94; Pl. 56.1
Resp. ¶ 5, 93, undercuts her retaliation claim with respect to
defendant's purported failure to promote her.
Moreover, plaintiff has not provided any evidence that any
individual in charge of the decision-making with respect to
any of the positions for which she applied was even aware of
her EEO activity, let alone that they had retaliatory animus
towards her. Def. 56.1 Stmt. ¶¶ 77-95; Pl. 56.1 Resp. ¶¶ 78-94.
Given that “[t]he ultimate burden of persuasion, of course,
remains with the plaintiff,” Sumner v. U.S. Postal Serv., 899
F.2d 203, 209 (2d Cir. 1990) (collecting cases), the lack of
any evidence of a retaliatory animus is fatal. See Grandy v.
Manhattan and Bronx Surface Transit Operating Auth., 2018
WL 4625768, at *11 n.20 (S.D.N.Y. Sept. 26, 2018) (granting
summary judgment, in a single footnote, as to plaintiff's
retaliation claims arising out of a failure to promote because
she “offered no evidence at all of a causal connection.”).
As to the first relevant position for which plaintiff was passed
up (where she and 18 other BOP employees were identified
as eligible for the position), the selection decision was made
on October 20, 2014 – more than 11 months after she reported
Madison's assault – and plaintiff presents no evidence that the
decisionmaker had knowledge of her EEO activity, let alone a
retaliatory motive. Def. 56.1 Stmt. ¶¶ 82-83; Pl. 56.1 Resp. ¶¶
82-83. See Murray, 528 F. Supp. 2d at 275 (collecting cases)
(“[D]istrict courts within the Second Circuit have consistently
held that the passage of two to three months between the
protected activity and the adverse employment action does
not allow for an inference of causation.”).
The second relevant position was one where plaintiff and
27 other employees were identified as eligible, and plaintiff
again presents no evidence that the decisionmaker had
knowledge of her EEO activity, let alone a retaliatory motive.
Def. 56.1 Stmt. ¶ 84; Pl. 56.1 Resp. ¶ 84.
Further, the evidence shows that Associate Warden Bergami,
who was the selecting official for a position in 2015 for
which plaintiff applied but was not selected (out of 19
eligible candidates), was not aware of any EEO activity
by any applicant. Def. 56.1 Stmt. ¶¶ 86-89; Pl. 56.1 Resp.
¶¶ 86-88. Plaintiff concedes all of this, offering only that
Bergami was not aware of whether or not two officials who
conducted plaintiff's reference check learned about her prior
EEO activity. Pl. 56.1 Resp. ¶ 87. This is not evidence; it is,
at best, speculation. Plaintiff offers no evidence that her EEO
activity was actually known by a decisionmaker, much less a
factor in the hiring decision.
With respect to another position for which plaintiff applied
and was not selected (another position with MDC) the
decisionmaker, Warden Quay, was presented with 21
qualified applicants, including plaintiff, selected seven
individuals, all of whom already worked at MDC at the time,
and was unaware of any instance where an applicant's EEO
activity was raised in connection with reference-checking for
promotions. Def. 56.1 Stmt. ¶¶ 90-93; Pl. 56.1 Resp. ¶¶ 89-92.
*25 Plaintiff attempts to overcome this by pointing out
that she was denied for 10 promotions for which she was
qualified and “[r]ejection for multiple promotions for which
an employee is qualified may preclude summary judgment.”
Pl. Mem. at 38. However, in the case plaintiff cites to, Chavis
v. Wal-Mart Stores, Inc., 265 F. Supp. 3d 391 (S.D.N.Y. 2017),
the defendant did not simply fail to promote plaintiff into
eight positions for which she was qualified; it claimed that
she was unqualified because the role required Sunday work –
to which she had a religious objection – notwithstanding that
the job description did not mention any requirement to work
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on Sunday. Id. at 404-06. Chavis is thus inapposite, as there
is no evidence in the case before me that the legitimate, non-
retaliatory reasons for passing plaintiff up for promotion were
illusory.
Plaintiff also points out that of the seven applicants selected
by Warden Quay for the position at MDC, plaintiff was
more qualified than two of them. Pl. Mem. at 17-18, 38-39.
However, plaintiff elsewhere concedes that all seven of those
individuals were already working at MDC at the time of
their promotion. Def. 56.1 Stmt. ¶ 92; Pl. 56.1 Resp. ¶ 91.
Quay testified that he had never encountered a situation where
an applicant's EEO activity came up during the vouchering
process, and plaintiff offers no response to his legitimate, non-
retaliatory explanations for why he chose other individuals for
the position. In short, plaintiff has not offered any evidence,
whether it be temporal proximity, circumstantial evidence
(such as disparate treatment of other employees engaged in
similar protected activity), or evidence of specific retaliatory
animus directed against her by the decision-makers who
elected not to promote her for the positions she applied
for, see Gordon, 232 F.3d at 117, that could “permit a
rational finder of fact to infer a retaliatory motive.” Jute,
420 F.3d at 173. See also U.S. v. N.Y.C. Dep't of Educ.,
407 F. Supp. 3d 365, 403 (S.D.N.Y. 2018) (noting that if
defendant establishes a non-retaliatory motive, the plaintiff
“must produce not simply some evidence, but sufficient
evidence to support a rational finding that the legitimate,
non-discriminatory reasons proffered by the defendant were
false, and that more likely than not discrimination was the
real reason for the employment action” and that a “plaintiff
may prove a retaliatory motive by demonstrating weaknesses,
implausibilities, inconsistencies, or contradictions in the
employer's proffered legitimate, nonretaliatory reasons for
its action.”) (internal citations and quotation marks omitted)
(collecting cases).
Further, although the Court must consider “allegations of
retaliation ‘both separately and in the aggregate’ ” to
determine whether an adverse employment action occurred
because “even minor acts of retaliation can be sufficiently
‘substantial in gross’ to be actionable,” Collazo v. County
of Suffolk, 163 F. Supp. 3d 27, 52 (E.D.N.Y. 2016) (quoting
Burlington N., 548 U.S. at 67-69), unlike the cease-and-desist
memorandum and the OIA investigation, plaintiff's non-
selection for jobs involved entirely different decisionmakers,
with no connection to those involved in disciplining her,
and there is no evidence in the record that those instances
of non-selection even constitute “minor acts of retaliation,”
such that they must be considered in the aggregate with
plaintiff's surviving retaliation claim. For the foregoing
reasons, the Court concludes that defendant is entitled to
summary judgment as to the portion of plaintiff's retaliation
claim that is premised on a purported failure to promote.
3. Retaliatory Harassment Claim
Plaintiff's allegations of retaliatory harassment are limited to
a few vague incidents – she was prevented from heating up
her food by a co-worker; on two occasions she was sent to
the roof of MCC and left there for an indeterminate period of
time; once she thought the elevator purposefully skipped her
floor when she was waiting on it; certain coworkers stopped
saying hello to her; she thought there were instances where
her name was skipped for overtime; once she was not paid for
30 overtime shifts (but was subsequently paid all the money
owed); and on three occasions coworkers made derogatory
comments about her, including telling incoming employees,
“Don't talk to her. That's the sexual harassment girl. [ ] She'll
report you.” Def. 56.1 Stmt. ¶ 111; Pl. 56.1 Resp. ¶ 111; Small
Dep. Tr. 133:9-135:15, 138:25-140:14.
*26 A plaintiff alleging retaliatory hostile work environment
following complaints of discrimination “must satisfy the
same standard that governs hostile workplace claims
by showing that the incidents of harassment following
complaints were sufficiently continuous and concerted to
have altered the conditions of [her] employment.” Villar v.
City of N.Y., 135 F. Supp. 3d 105, 137 (quoting Rasco, 2009
WL 690986, at *15). The isolated incidents that plaintiff
complains about are not pervasive and concerted, were not
extreme in their severity (plaintiff described being sent to
the wrong floor and her treatment after her EEO activity as
“[j]ust dumb things,” Small Dep. Tr. at 133:14-134:21, and
she did not even recall the three instances where derogatory
comments were made towards her at her deposition, only
testifying as to them at her EEOC hearing, see Def. 56.1 Stmt.
¶ 111; Pl. 56.1 Resp. ¶ 111), and thus cannot support a claim
for retaliatory harassment. See Bobbitt v. N.Y.C. Health and
Hosp. Corp., 2009 WL 4975196, at *9 (S.D.N.Y. Dec. 22,
2009) (in the context of a hostile work environment claim
for Title VII racial discrimination, “[f]or racist comments,
slurs, and jokes to constitute a hostile work environment,
there must be more than a few incidents of racial enmity,
meaning that instead of sporadic racial slurs, there must be
a steady barrage of opprobrious racial comments”) (footnote
omitted); Eldaghar v. City of N.Y. Dep't of Citywide Admin.
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Servs., 2008 WL 2971467, at *15 (S.D.N.Y. July 31, 2008)
(finding that where plaintiff alleged six instances of being
belittled, undermined, and shouted at by his supervisor, even
assuming they were all driven by his national origin or
age, “such ‘[i]solated incidents or episodic conduct [would]
not support a hostile work environment claim.’ ”) (quoting
Richardson, 180 F.3d at 437 and collecting cases). None
of the instances alleged following plaintiff's complaint of
EEO activity approach the level of severity of sexual assault,
where an isolated incident can alone support a hostile work
environment claim.
Since the summary judgment record does not contain any
evidence of actionable retaliatory harassment, the Court does
not reach the question of whether there is a basis to impute the
purported harassment to the defendant. Defendant is entitled
to summary judgment as to plaintiff's claim for retaliatory
harassment.
III. CONCLUSION
For the reasons stated above, it is hereby ORDERED that
defendant's motion for summary judgment is DENIED as
to plaintiff's claim for retaliation, insofar as it relates to
the reprimand she received for misuse of BOP computers
(including the circumstances and investigation leading up to
that reprimand), and GRANTED as to all of plaintiff's other
claims.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 1226979
Footnotes
1 The BOP is under the purview of the United States Department of Justice (DOJ). When this action was filed,
Jefferson B. Sessions III was the United States Attorney General and was named, in his official capacity, as
the defendant herein. By Order dated March 25, 2021 (Dkt. No. 70), Merrick B. Garland, the current Attorney
General, was substituted as the defendant.
2 In her reply declaration, Barbara Latham, a former MCC Human Resources manager, describes Madison's
scope of authority over non-correctional officers working a custody post in more limited terms. See Latham
Supp. Decl. ¶¶ 5-9, 11-15. The Court thus accepts that there is a dispute of fact as to this relatively narrow
issue – the extent of Madison's supervisory authority over plaintiff when she worked a custody post – which
the Court resolves in plaintiffs’ favor for purposes of the instant motion.
3 Plaintiff's 56.1 Response appears to accidentally omit paragraph 30 of Defendant's 56.1 Statement, instead
first denying paragraph 29 as not accurately reflecting the evidence, before including a response of
“[a]dmitted” untethered to any paragraph number. The Court presumes that plaintiff intended the untethered
response to be in response to paragraph 30. More generally, plaintiff's 56.1 Response alternates between
properly matching its paragraph numbering to defendant's 56.1 Statement and being off by one on the
paragraph numbering. However, it remains clear throughout which paragraph plaintiff intends to respond to.
4 Covington's testimony on this point, couched explicitly in speculative language, “is not admissible, because
it is simply speculation,” and “the Court can only rely upon admissible evidence in the context of summary
judgment.” Kiefer v. Crane Co., 2014 WL 6778704, at *3 (S.D.N.Y. Feb. 3, 2014). Accordingly, there is not
a genuine issue of fact.
5 Plaintiff attempts to dispute this, contending that the executive summary from Wade-Jones stated only that
plaintiff, not Madison, had misused a government computer. Pl. 56.1 Resp. ¶ 64. In fact, the executive
summary clearly states that the investigation revealed sufficient evidence that “Madison inappropriately
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touched Small's buttocks and misused a government computer.” Doud Decl. Ex. L at 7. Accordingly, this is
not a genuine dispute.
6 At the EEOC hearing, Linaweaver testified that she had received personal emails on a government computer,
and explained that in determining whether the personal use is de minimis, the issue is how the employee
responds to those emails. According to Linaweaver, responding with a one line email is de minimis use, but
four pages of personal greetings would be abuse. EEOC Tr. at 721:4-722:5.
7 There is no evidence in the record that any “emails of a sexually explicit nature” were exchanged between
Madison and plaintiff.
8 Plaintiff denies this assertion, stating that “there were seven individuals ... selected for the job.” Pl. 56.1 Resp.
¶ 91. This does not appear to be a dispute of fact, much less a material fact, since “several individuals” is
not inconsistent with “seven individuals.”
9 Plaintiff points out that a report issued in 2010 by the EEOC identified the BOP practice of “vouchering,”
whereby the hiring supervisor speaks with an employee's current or past supervisors and learns of the
employee's past EEO activity, “result[ing] in employees’ fear that if they filed an EEO complaint they will never
be promoted.” Pl. 56.1 Resp. ¶ 92; Beranbaum Decl. Ex. 8 (Dkt. No. 59-11) (2010 EEOC Rpt.). However,
plaintiff does not deny Quay's testimony or otherwise or argue that her EEO activity was discovered in the
manner described in the 2010 EEOC Report.
10 In her Rule 56.1 response, plaintiff disputes this, contending that the hearing took six, not seven days, and
that there was no hearing on February 4, 2017. Pl. 56.1 Resp. ¶ 116. However, she does not cite to any
evidence in the record to support that contention, which is at odds with the AJ Decision. In any event, this
is not a material dispute.
11 The AJ Decision, like the earlier letter from EEO Officer Raskin, describes plaintiff's claim of sexual
harassment as limited to the October 18, 2013 elevator incident and Madison's visit to her office later that
day. AJ Dec. at 2. There is no discussion, anywhere in the 17-page decision, of any allegation by plaintiff that
she was subject to sexual harassment before – or after – that date.
12 As defendant notes, plaintiff “does not contend that she suffered quid pro quo sexual harassment.”
Defendant's Memorandum of Law in Support of Motion for Summary Judgment (Dkt. No. 51) (Def. Mem.)
at 17.
13 Plaintiff also argues that defendant is estopped from asserting its exhaustion defense because the BOP did
not object to evidence of the sexualized work environment being introduced at the EEOC hearing. Plaintiff's
Memorandum of Law in Opposition to Motion for Summary Judgment (Dkt. No. 60) (Pl. Mem.) at 19-20. This
argument is without merit. A party is estopped from raising a defense “that could have been raised or decided
in a previous suit, even if the issue or defense was not actually raised or decided.” Woods v. Dunlop Tire
Corp., 972 F.2d 36, 38 (2d Cir. 1992) (citation omitted), cert. denied, 506 U.S. 1053 (1999). A failure-to-
exhaust argument can only be made – and thus can only be waived – in federal district court. Plaintiff provides
no case law, and the Court was unable to locate any, that supports the novel theory that not objecting to
the admission of evidence at an EEOC hearing can estop the non-objecting party from raising a failure-to-
exhaust defense in a later civil suit.
14 Plaintiff does not dispute that the letter from EEO Officer Raskin and the AJ Decision accurately summarize
her EEOC charge and amendments thereto. See Pl. Mem. at 20-22.
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Small v. Garland, Not Reported in Fed. Supp. (2021)
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15 And even during those two weeks, Madison was instructed to have the other lieutenant on shift make the
rounds in plaintiff's unit. Def. 56.1 Stmt. ¶ 46; Pl. 56.1 Resp. ¶ 45.
16 By contrast, Warden Linaweaver, Captain Ward, and Covington testified that a cease and desist
memorandum is not a disciplinary action. Def. 56.1 Stmt. ¶ 39; Pl. 56.1 Resp. ¶ 38; EEOC Tr. at 652:9-653:13,
734:12-13, 1204:7-18.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Telesford v. New York City Department of Education, Not Reported in Fed. Rptr. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 6366051
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Edgar D. TELESFORD, Plaintiff-Appellant,
v.
NEW YORK CITY DEPARTMENT
OF EDUCATION, Defendant-Appellee,
Malik Small, Joyce Stallings-Harte, Defendants.
No. 21-227
|
September 29, 2023
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Amon, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Amira Privott-Yeiser,
Bronxville, NY, only at argument. Edgar D. Telesford, pro se,
Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Jesse A. Townsend,
Assistant Corporate Counsel (Ingrid R. Gustafson, on the
brief), for Hon. Sylvia O. Hinds-Radix, Corporation Counsel,
New York, NY.
PRESENT: JOHN M. WALKER, JR., DENNY CHIN, BETH
ROBINSON, Circuit Judges.
SUMMARY ORDER
*1 Plaintiff-Appellant Edgar D. Telesford appeals the
district court's judgment in favor of Defendant-Appellee New
York City Department of Education (“DOE”) dismissing
his Americans with Disabilities Act (“ADA”) claims. 1 The
district court issued an order granting DOE's motion for
summary judgment. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and
the issues on appeal.
This Court “review[s] de novo a district court's grant of
summary judgment after construing all evidence, and drawing
all reasonable inferences, in favor of the non-moving party.”
Sotomayor v. City of N.Y., 713 F.3d 163, 164 (2d Cir. 2013)
(per curiam). “Summary judgment is appropriate only when
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Id. 2
A genuine dispute requires evidence that “would permit a
reasonable juror to find for the party opposing the motion.”
Figueroa v. Mazza, 825 F.3d 89, 98 (2d Cir. 2016).
“Title I of the ADA prohibits discrimination against a
qualified individual on the basis of disability.” Davis v. N.Y.C.
Dep't of Educ., 804 F.3d 231, 234–35 (2d Cir. 2015) (per
curiam). To prevail on an ADA discrimination claim, the
plaintiff must show, among other things, that “discrimination
was the but-for cause of [the] adverse employment action.”
Natofsky v. City of N.Y., 921 F.3d 337, 348 (2d Cir. 2019).
Claims alleging ADA discrimination are subject to the
McDonnell Douglas burden-shifting framework. Davis, 804
F.3d at 235; see McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Under that framework, the plaintiff must
“establish a prima facie case of discrimination,” after which
“the burden of proof shifts to the defendant to articulate
some legitimate, nondiscriminatory reason for the employer's
conduct.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d
Cir. 2019). If the defendant does so, “the plaintiff must then
demonstrate that the employer's assigned reason was a pretext
or discriminatory in its application.” Id.
The ADA also prohibits retaliation. See Treglia v. Town
of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citing 42
U.S.C. § 12203(a)). To prevail on an ADA retaliation claim,
the plaintiff must show, among other things, that “a causal
connection exists between the protected activity and the
adverse action.” Natofsky, 921 F.3d at 353. As with ADA
discrimination claims, retaliation claims under the ADA
are also subject to the McDonnell Douglas burden-shifting
framework. See Treglia, 313 F.3d at 719.
*2 Here, even assuming that Telesford made an initial
showing of discrimination and retaliation under the ADA,
summary judgment was proper. The district court correctly
concluded that Telesford did not submit evidence that would
have permitted a reasonable juror to conclude that the
DOE's proffered nondiscriminatory and nonretaliatory bases
for denying tenure and revoking the reversal letter were
pretextual.
Telesford received disciplinary letters and poor performance
evaluations before he was injured or engaged in protected
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Telesford v. New York City Department of Education, Not Reported in Fed. Rptr. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
activity. Cf. Slattery v. Swiss Reins. Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001) (holding that an inference
of retaliation did not arise where “gradual adverse job
actions began well before the plaintiff had ever engaged
in any protected activity”). Most significantly, in May
2014, Telesford refused the principal's instruction to cover
another class during Telesford's free period and received
a disciplinary letter. The letter warned that the incident
could lead to further disciplinary action, “including an
adverse rating and [Telesford's] termination.” Dist. Ct. Docket
81-2 at 258. Moreover, in his six performance reviews,
wherein Telesford could receive ratings of “ineffective,”
“developing,” “effective,” and “highly effective,” Telesford
mostly received “ineffective” or “developing” ratings on the
full range of metrics evaluated. The DOE completed these
reviews before Telesford sustained his injury and engaged
in protected activity. Although his ratings showed some
improvement by the spring (before his injury), Telesford still
received only 5 ratings of “effective,” as contrasted with 12
ratings of “developing” in his last review of the year. His final
global rating for the year was “developing.” In the principal's
view, Telesford was not “tenurable.” This evidence supports
the DOE's claim that it had legitimate, nondiscriminatory
reasons for declining tenure.
Telesford has not produced sufficient evidence from which
a reasonable jury could conclude that these reasons were
pretextual. In an affidavit filed in response to the DOE's
motion, Telesford contends that before he was injured, the
principal invited him to teach a summer course and to
return the following school year. He also asserts that the
principal said he would shred Telesford's disciplinary letters
so he would start with a “clean slate.” Dist. Ct. Docket
80-4 at 2–3. A jury could credit these assertions in part.
In his initial deposition testimony, Telesford did not say
that he was invited to teach again the following school
year. Nor did he mention that the principal had promised
to shred his disciplinary letters. The Chancellor's Committee
Report, generated by the committee that reviewed Telesford's
administrative challenge to the denial of certification, does
not reflect that Telesford reported these events to the
committee. A jury could nevertheless credit Telesford's claim
that, prior to his tenure review, the principal offered him
a position the next academic year. But a jury could not
credit his assertion that the principal promised to shred his
past disciplinary reports. See Hayes v. N.Y.C. Dep't of Corr.,
84 F.3d 614, 619 (2d Cir. 1996) (“[F]actual issues created
solely by an affidavit crafted to oppose a summary judgment
motion are not ‘genuine’ issues for trial.”) (emphasis added).
Telesford's eleventh-hour claim that the principal would shred
his disciplinary reports cannot be squared with his failure
to recount this event during his deposition and during the
Chancellor's Committee proceeding. See Perma Rsch. & Dev.
Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (“If a party
who has been examined at length on deposition could raise an
issue of fact simply by submitting an affidavit contradicting
his own prior testimony, this would greatly diminish the utility
of summary judgment[.]”).
*3 We are thus left with two facts to consider: that Telesford
was scheduled to teach the following school year and that the
principal offered him a summer teaching position. Accepting
these facts as true, they are insufficient to rebut the DOE's
legitimate, nondiscriminatory reasons for denying him tenure.
Telesford does not dispute that his probationary contract
continued into the next school year. With this understanding,
when the principal invited Telesford to teach that summer
and said he would have a position the following academic
year, this evidence supports the inference that Telesford was
scheduled to work through the remainder of his probationary
term, which extended into the next academic year.
But Telesford urges us to infer more. He suggests that because
in the spring, before his actual tenure review, the principal
offered him a teaching position in the summer and in the
new school year, the principal must have intended at that
time to approve his tenure effective at the expiration of his
probationary contract. But Telesford has offered no evidence
to support that broader inference. Nor did he submit any
evidence suggesting that the offer to teach a summer course
within the term of his probationary contract meant that he
was tenurable, or that the DOE intended to certify him for
tenure. Telesford's theory requires impermissible speculation
and conjecture. See Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d 494, 499 (2d Cir. 2001) (“[M]ere speculation and
conjecture is insufficient to preclude [summary judgment.]”).
We also reject his second theory of pretext: that the
Chancellor's Committee's split recommendation to reverse
Telesford's tenure denial suggests that the reasons offered for
his termination were pretextual. This fact is but a “scintilla
of evidence” in support of Telesford's position, and it cannot
defeat summary judgment. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). Notably, the Committee's
majority found that the documentation regarding Telesford's
performance ratings was “thorough and comprehensive.”
Dist. Ct. Docket 81-2 at 367. The Committee also observed
that Telesford did not achieve an overall instructional rating of
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Telesford v. New York City Department of Education, Not Reported in Fed. Rptr. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
“effective,” which is required to achieve tenure. Id. The fact
that two of the three Committee members thought Telesford
should have been given better mentorship and more time
between evaluations does not suggest that the DOE's partial
reliance on those evaluations—all conducted before his injury
—was pretextual.
Finally, as to his retaliation claim, Telesford contends that the
superintendent initially intended to reinstate his tenure after
receiving the Committee's recommendation, but, after she
saw his request for reasonable accommodations, she changed
her mind. This argument is too speculative to show pretext.
See Harlen Assocs., 273 F.3d at 499. The superintendent's
denial was consistent with her prior determination. She and
her secretary testified that they sent Telesford the wrong form
letter and corrected their error within days. Telesford has
provided no evidence from which a reasonable juror could
find pretext. See D'Amico v. City of New York, 132 F.3d 145,
149 (2d Cir. 1998) (“The non-moving party may not rely
on mere conclusory allegations nor speculation, but instead
must offer some hard evidence showing that its version of the
events is not wholly fanciful.”).
We have considered all of Telesford's remaining arguments
and find them to be without merit. Accordingly, we AFFIRM
the judgment of the district court.
All Citations
Not Reported in Fed. Rptr., 2023 WL 6366051
Footnotes
1 Telesford also raised a denial-of-tenure claim under 42 U.S.C. § 1983, a failure-to-accommodate claim under
the ADA, and claims under state and city human rights law. Because Telesford's brief does not address these
claims, they are deemed abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).
2 Unless otherwise noted, this order omits all internal quotation marks, alterations, footnotes, and citations in
its quotations from case law and the parties’ briefings.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 3:24-cv-01358-GTS-ML Document 29 Filed 02/18/26 Page 184 of 195

Whitley v. Montefiore Medical Group, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Drouillard v. Sprint/United Management Company,
E.D.N.Y., March 22, 2019
2016 WL 1267788
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Latonya WHITLEY, Plaintiff,
v.
MONTEFIORE MEDICAL GROUP, Defendant.
No. 13CV4126-LTS
|
Signed 03/30/2016
Attorneys and Law Firms
Marjorie Mesidor, Phillips & Phillips Attorneys at Law,
PLLC, Brittany Alexandra Stevens, Nicole Ann Welch,
Phillips & Associates, Attorney at Law, PLLC, John Michael
Lambros, Law Office of John M. Lambros, New York, NY,
for Plaintiff.
Jean L. Schmidt, Joseph Eric Field, Littler Mendelson, P.C.
(NYC), New York, NY, for Defendant.
MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, United States District Judge
*1 Plaintiff Latonya Whitley (“Whitley” or “Plaintiff”)
brings this employment discrimination and civil rights action
against Defendant Montefiore Medical Group (“Montefiore”
or “Defendant”), seeking redress for alleged violations
of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 1981 and the New York City Human Rights
Law (“NYCHRL”). Plaintiff claims that she has suffered
discrimination, harassment and retaliatory conduct at the
hands of several Montefiore employees as a result of her
race. Montefiore now moves for summary judgment, arguing
that certain of Plaintiff's claims are untimely and that she is
unable to establish basic elements of the rest. The Court has
jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and
1367.
The Court has considered carefully the parties' submissions.
For the reasons stated below, Defendant's motion for
summary judgment is granted in its entirety.
BACKGROUND 1
Montefiore Medical Center is an integrated health care
delivery system, with three main campuses in the Bronx,
New York, along with a network of neighborhood health
centers offering a wide range of home health care and
rehabilitation services throughout the Bronx and Westchester.
(See Def. 56.1 St. ¶ 1.) Defendant Montefiore is a division
of Montefiore Medical Center that operates 23 health care
centers. (See id. ¶ 2.) Montefiore has written policies
prohibiting all forms of discrimination, harassment and
retaliation, and trains all of its managers regarding those
policies. (Id. ¶¶ 3-4.)
Plaintiff Latonya Whitley, an African American woman,
began working at Montefiore as a full time, at will, employee
on October 3, 2005. (Id. ¶¶ 7-9.) From October 2005 through
November 2011, Whitley worked at the Comprehensive
Health Community Center (“CHCC”) site in the Bronx. (Id. ¶
16.) Lawrence Martin (“Martin”) has been the administrative
director of CHCC since November 2007. (Id. ¶ 13.) Whitley
began her employment at Montefiore as a Patient Service
Representative (“PSR”), a job that entailed registering
patients, setting up appointments, answering telephones and
handling charts and records. (Id. ¶ 17.) In 2008, a vacancy
opened for a 5C Senior Clerk position in the OBGYN
department at CHCC; the position was ultimately filled by
Vialka Gonzalez, a former Montefiore employee who was
returning to New York from Florida. (Id. ¶ 18.) After Vialka
Gonzalez was appointed to the 5C Clerk position, Montefiore
was served with a grievance by 1199 SEIU Healthcare
Workers East (the “Union”) contesting Gonzalez's placement
as a violation of the collective bargaining agreement. (Def.
56.1 St. ¶ 19.) This grievance was filed on behalf of Whitley
and three other PSRs. (Id.) The grievance was ultimately
resolved pursuant to an agreement whereby Vialka Gonzalez
was allowed to remain in her position and one of the grievants
would be placed in a 5C Senior Clerk position in Adult
Medicine. (Id. ¶ 23.) The 5C Adult Medicine position was
ultimately given to Whitley. (Id.) Martin was not advised, and
was otherwise unaware, that Whitley was disappointed that
she had been placed in Adult Medicine rather than OBGYN,
since she had been working in Adult Medicine since she
began at CHCC. (Id. ¶ 25.) 2
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Whitley v. Montefiore Medical Group, Not Reported in Fed. Supp. (2016)
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*2 In December 2010, Whitley was promoted to a
position as an Administrative Supervisor, a non-union
management position. (Id. ¶¶ 27, 31.) Whitley was given
this promotion despite the fact that she lacked two
recommended qualifications for the position – a bachelor's
degree and ambulatory management experience. (Id. ¶ 33.)
The promotion included a standard six-month probationary
period. (Id. ¶ 32.) If Whitley did not pass this probationary
period, her employment could be terminated or the probation
period extended at the discretion of Montefiore. (Id.) Because
of Whitley's lack of management experience, Martin advised
her that the promotion was likely to present a “rough road,”
but he stated that he and Whitley's direct supervisor would be
there to support her. (Id. ¶ 35.) Whitley believes that she never
received any such support. (Id. ¶ 36.)
As an Administrative Supervisor, Whitley was responsible
for supervising PSRs in the Adult Medicine Department,
assigning them tasks and making their schedules. (Def. 56.1
St. ¶ 38.) Prior to her promotion, Whitley had been a co-
worker of the PSRs she was now responsible for supervising.
(Id. ¶ 40.) Trevor Francis (“Francis”) and Jose Gonzalez
(“Gonzalez”) were among those PSRs. (Id. ¶ 41.) Many of
Whitley's former co-workers found it difficult to report to her
as their supervisor and expressed dissatisfaction and jealousy
over her promotion. (Id. ¶ 42.) Several of her reports regularly
called out of work on short notice or came into work late. (Id.
¶ 43.) As a result, Whitley had multiple conversations with
Samantha DeBurra (“DeBurra”), the Assistant Administrator
of CHCC, about her direct reports not respecting her authority.
(Id. ¶¶ 14, 45.) 3
At the time of Whitley's promotion to the management
position, the CHCC was in the midst of ongoing physical
renovations. (Id. ¶ 49.) Thus, Whitley was never provided
with her own private office; rather, she was shown an
office that she was told she would occupy once renovations
were complete. (Id. ¶ 50.) Throughout her employment as
Administrative Supervisor, Whitley had use of an office
behind the front desk as well as one near the head nurse,
both of which had computers, printers and phones. (Def.
56.1 St. ¶ 51.) Although Whitley did not have a personal
computer during this time, she was also able to use computers
located in several other offices, and had access to conference
rooms located beneath the Adult Medicine floor to the extent
she wanted to meet with patients or staff in private. (Id.
¶¶ 51-53.) 4 In order to assist Whitley in her new role,
Montefiore sent her to classes on how to become an effective
supervisor, leader and communicator. (Id. ¶ 68.) She received
time off from work to attend these classes and did not have to
pay for them. (Id. ¶ 69.)
*3 In late February or early March of 2011, Whitley
had a PSR named Tiffany Williamson assist her in getting
prescription eye drops from an onsite Montefiore doctor at
CHCC. (Id. ¶¶ 55-56.) Whitley used Williamson's name and
identity to get a prescription filled at the CHCC pharmacy
for her own use, though she asserts that this was done under
the supervision of a Montefiore doctor. (Pl. 56.1 St. ¶ 57;
Def. 56.1 St. ¶ 57.) After being advised of this incident,
DeBurra called Whitley to discuss the matter, at which time
DeBurra informed Whitley that her conduct in obtaining
the prescription was illegal. (Def. 56.1 ¶ 60.) DeBurra
decided not to terminate Whitley at that time. (Id. ¶ 62.)
Instead, DeBurra issued Whitley a “Final Notice in Lieu of
Termination” which advised Whitley that she had engaged in
“completely inappropriate behavior,” that her decision was
“gross misconduct and poor judgment,” and warned that
“[a]ny future actions of a similar nature [would] result in
termination.” (Id. ¶¶ 62-64.)
On June 13, 2011, DeBurra extended Whitley's probation.
(Id. ¶ 72.) Montefiore claims that this was done to “give
[Whitley] more time to work on areas where she needed to
improve, particularly her leadership skills and motivating her
staff.” (Def. 56.1 St. ¶ 72.) Whitley, however, asserts her
belief that her probation was extended “as a way to retaliate
against her for complaints.” (Pl. 56.1 St. ¶ 72.) On August 8,
2011, Whitley met with Martin and DeBurra in a conference
room and was told that she would have to find a new position.
(Def. 56.1 St. ¶ 79.) Whitley was informed at that meeting
that she was not being fired, but rather that her position was
not working out and she should consider looking for a new
one. (Id. ¶ 80.) She was asked by human resources employee
Tisa Hall whether she would consider being placed back into
a 5C position, but indicated that she would not agree to any
such proposal. (Id. ¶ 83.)
By August 2011, Jorge Rodriguez, Associate Vice President
at Montefiore and Martin's supervisor, understood that
Whitley would not pass her extended probationary period as
an Administrative Supervisor, and offered to try to place her
in a 4C position, which she declined. (Id. ¶ 89.) Whitley had
previously complained to Rodriguez about the perceived lack
of support she was receiving from Montefiore as well as the
lack of respect she was receiving form her subordinates. (Id.
¶ 84.)
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On or about August 11, 2011, Whitley had advised Hall that
she was having a panic attack, and she met with a doctor
at Montefiore's Occupational Health Services (“OHS”) to be
evaluated. (Id. ¶¶ 94-95.) The doctor filled out a note stating
that Whitley was to remain off duty until she was cleared to
return to work by her primary care provider. (Id. ¶ 95.) At a
follow-up visit on August 18, 2011, the OHS doctor extended
Whitley's off-duty status until such time as she was cleared to
return by her primary care provider. (Id. ¶ 96.) In late August,
2011, Whitley saw her psychiatrist, Dr. Anthony Stern. (Id. ¶
98.) Dr. Stern advised that Whitley was not yet ready to return
to work, and that he would reevaluate her in September. (Def.
56.1 St. ¶ 98.) Dr. Stern subsequently reevaluated Whitley on
or about September 8, 2011, September 22, 2011, and October
25, 2011, extending her “out of work” status each time. (Id. ¶¶
99, 100, 103.) On or about September 15, 2011, Whitley had a
call with Rodriguez in which Rodriguez advised Whitley that,
due to a hiring freeze at Montefiore, she would not be placed
in another position at that time. (Id. ¶ 92.) Dr. Stern's internal
notes regarding Whitley's October 25, 2011, visit include
his recommendation that Whitley's out of work status be
extended due to the hiring freeze at Montefiore, and Whitley
testified at her deposition that Dr. Stern submitted notes on
her behalf to help keep her out of work while Montefiore
attempted to place her in a new position. (Id. ¶¶ 104, 107.)
Whitley never returned to work at any time after August 12,
2011, yet she testified at her deposition that she was “ready,
willing and able to work all the time.” (Id. ¶¶ 105-06.)
*4 On August 26, 2011, Whitley filed online for
unemployment benefits with the New York State Department
of Labor (the “DOL”). (Id. ¶ 110.) In her online application,
Whitley indicated that she was “able and available to start
work immediately.” (Id. ¶ 111.) Although she represented
to the DOL that she was able to work “immediately,” she
advised Montefiore at that time and thereafter, by way of
letters from Dr. Stern, that she was unable to return to
work. (Id. ¶ 112.) 5 Whitley also represented to the DOL
that she lost her employment due to “lack of work,” yet
she had not been terminated by Montefiore at the time she
filed for unemployment benefits. (Def. 56.1 St. ¶¶ 114-15.) 6
Whitley testified at her deposition that she recognized the
inconsistency between the information that she had submitted
to Montefiore and the representations she had made to the
DOL. (Id. ¶ 113.)
In November 2011, Martin was advised by Montefiore's
Human Resources Department that Whitley had been
receiving unemployment benefits while she was out on a
medical leave of absence and thus should be terminated. (Id.
¶ 116.) Whitley was informed of her termination by a letter
dated November 21, 2011, in which Martin indicated that
her application for unemployment benefits while she was out
on medical leave was a terminable offense. (Id. ¶¶ 117-119.)
Montefiore maintains that “Whitley's application for and
receipt of unemployment benefits while she represented to
Montefiore she was unable to work and needed a medical
leave of absence was the basis for Montefiore's decision to
terminate her employment.” (Id. ¶ 122.)
In or around November 2011, the DOL began an investigation
into Whitley's application for unemployment benefits. (Id. ¶
123.) During the course of the investigation, the investigator
communicated with Dr. Stern, who advised her that he had
been prepared to clear Whitley to return to work once the
hiring freeze at Montefiore was over. (Id. ¶ 130.) The DOL
eventually awarded Whitley unemployment benefits. (Id. ¶
131.) While Montefiore objected to the DOL's determination,
it failed to send a representative to a hearing on the award,
which was ultimately upheld by an Administrative Law
Judge. (Id. ¶ 132.) However, in late March or early April
2014, Whitley received a notice from the DOL to report
for a meeting with a DOL representative regarding her past
receipt of unemployment benefits. (Def. 56.1 St. ¶ 133.) The
DOL later determined that Whitley had made willfully false
statements to obtain benefits on more than one occasion, and
assessed her penalties representing overpaid benefits totaling
over $18,000. (Id. ¶¶ 135-39.) 7 Whitley has admitted that she
was dishonest with Montefiore in obtaining unemployment
benefits from the DOL for the period of May 2010 through
January 2011, which covered a period of time in which
Plaintiff was actively working at Montefiore following her
return from maternity leave. (Id. ¶¶ 142-43.)
DISCUSSION
Rule 56 Summary Judgment Standard
*5 Pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment is to be granted in favor of a
moving party where that party can demonstrate “that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986). Thus, a party that is unable to “make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the
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burden of proof at trial” will not survive a Rule 56 motion.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
moving party bears the burden of demonstrating the absence
of a material fact, and the court must be able to find that,
“'after drawing all reasonable inferences in favor of a non-
movant, no reasonable trier of fact could find in favor of that
party.'” Marvel Entertainment, Inc. v. Kellytoy (USA), Inc.,
769 F. Supp. 2d 520, 523 (S.D.N.Y. 2011) (quoting Heublein
v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)). For
the purposes of summary judgment motion practice, a fact is
considered material “if it might affect the outcome of the suit
under the governing law,” and an issue of fact is “genuine”
where “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Holtz v. Rockefeller &
Co. Inc., 258 F.3d 62, 69 (2d Cir. 2001) (internal quotation
marks and citations omitted). “[M]ere conclusory allegations
or denials ... cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation
marks and citation omitted). “As to issues on which the non-
moving 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 Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).
Whitley's Discrimination Claims: Causes of Action One,
Two and Three
Whitley's first three Causes of Action assert discrimination
claims based on race in violation of Title VII, 42 U.S.C.
§ 1981 and the New York City Human Rights Law. In
situations such as this, where the plaintiff has proffered no
direct evidence of discrimination, courts apply the three-step
burden-shifting analysis articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973), in evaluating
Title VII and Section 1981 claims. See e.g., Terry v. Ashcroft,
336 F.3d 128, 141 (2d Cir. 2003); see also Pronin v. Raffi
Custom Photo Lab, Inc., 383 F. Supp. 2d 628, 634 (S.D.N.Y.
2005) (“In the absence of direct evidence of discrimination,
a plaintiff in an employment discrimination case usually
relies on the three-step McDonnell Douglas test.”). The
McDonnell Douglas test requires a plaintiff to make out a
prima facie case of discrimination by demonstrating that: (1)
she is a member of a protected class; (2) she performed her
job satisfactorily; (3) she suffered an adverse employment
action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of discrimination.
See e.g., Arnow v. Aeroflot Russian Airlines, 980 F. Supp.
2d 477, 483 (S.D.N.Y. 2013) (citing Stratton v. Dep't for
Aging for N.Y.C., 132 F.3d 869, 879 (2d Cir. 1997)). Once the
plaintiff has established a prima facie case of discrimination,
the burden shifts to the defendant to proffer a legitimate, non-
discriminatory reason for its action. Stratton, 132 F.3d at 879.
If defendant is able to provide such a reason, the presumption
of discrimination raised by the prima facie case is rebutted,
and “drops out of the picture,” and the plaintiff must show,
on the basis of all of the evidence presented, that it is more
likely than not that the employer's decision was motivated by
discrimination. See id. (quoting St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 510-11 (1993)). “The ultimate burden
of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with
the plaintiff.” Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). See also Anderson v. State of New
York, Office of Court of Admin. of Unified Court System, 614
F. Supp. 2d 404, 425 (S.D.N.Y. 2009) (applying McDonnell
Douglass test to Section 1981 claim; Men of Color Helping
All Soc., Inc. v. City of Buffalo, 529 F. App'x 20, 26 (2d
Cir. 2013)) (“Race discrimination claims under Title VII,
NYHRL, and §§ 1981 and 1983 are analyzed under the
burden-shifting framework of McDonnell Douglas Corp. v.
Green”); Davis v. Oyster Bay-East, No. 03CV13720-SJF-
JO, 2006 WL 657038, at *8 n.12 (E.D.N.Y. Mar. 9, 2006)
(“discrimination claims under Title VII, [and] 42 U.S.C. §
1981 and 1983 ... are analyzed together, as the same analytic
framework applies to each.”).
*6 The standard for NYCHRL claims is less stringent. In
order to “survive summary judgment, 'the plaintiff need only
show that her employer treated her less well, at least in part
for a discriminatory reason.'” Wilcox v. Cornell University,
986 F. Supp. 2d 281, 286 (S.D.N.Y. 2013) (quoting Mihalik
v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d
102, 110 n.8 (2d Cir. 2013).) As under the McDonnell
Douglas framework, an employer may present evidence of
a legitimate, non-discriminatory reason for its actions, but
summary judgment dismissing NYCHRL claims is only
appropriate “if the record establishes as a matter of law that
discrimination play[ed] no role in [the challenged] actions.”
Mihalik, 715 F.3d at 110 n.8 (internal quotation marks and
citations omitted).
It is undisputed that Whitley has demonstrated that she was
a member of a protected group, as she is African American.
(See Def. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.) Furthermore, although
there appears to be some disagreement as to whether Whitley
was truly “qualified” for her position, it is not contested that
she was promoted to the subject position of Administrative
Supervisor (see Def. 56.1 St. ¶ 27; Pl. 56.1 St. ¶ 27) and
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neither side offers any legal argument with respect to her
qualifications. The Court, accordingly, turns to the question
of whether Plaintiff's evidence demonstrates that she suffered
any adverse employment action. Plaintiff argues that the
adverse employment action element of her discrimination
claim is met by: (1) the denial of a promotion in 2008; (2)
the alleged failure by Montefiore to provide her with adequate
support and training; and (3) her termination. The Court
examines each of these contentions in turn.
1. 2008 Denial of Promotion
Whitley claims that she was discriminated against because
she was denied a promotion in 2008. (See Complaint,
Docket Entry No. 1 ¶ 11.) Montefiore argues that any such
failure to promote claim is time-barred. (See Defendant's
Memorandum of Law in Support of Its Motion for Summary
Judgment (“Def. Memo”), Docket Entry No. 35 at p. 16.) In
response, Whitley offers a one-sentence argument in which
she asserts that her failure to promote claim is not time-barred
because it is “part and parcel of the racially hostile work
environment Plaintiff alleges she endured while employed
by the Defendant.” (See Plaintiff's Memorandum of Law in
Opposition to Defendant's Motion for Summary Judgment
(“Pl. Memo”), Docket Entry No. 44 at p. 10.) Aside from
the fact that Whitley's responsive argument conflates two
separate causes of action, it fails as a matter of law.
Title VII requires a plaintiff to file a charge of discrimination
with the Equal Employment Opportunity Commission
(“EEOC”) within 300 days of an unlawful employment
practice. See 42 U.S.C. § 2000e-5(e)(1); see also National
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105-06
(2002). “A discrete retaliatory or discriminatory act [such
as an alleged failure to promote] 'occurr[s]' on the day that
it 'happen[s].'” Morgan, 536 US at 110. Thus, the statute
of limitations for a failure to promote claim runs from
the date the promotion was actually denied, even if this
occurred within the larger context of an allegedly hostile
work environment. See id. at 111-12 (“We have repeatedly
interpreted the term 'practice' to apply to a discrete act or
single 'occurrence,' even when it has a connection to other
acts.”). Because Whitley filed her EEOC charge on April 13,
2012 (see Field Decl., Ex. KK), any discrete Title VII claims
arising prior to May 17, 2011 – including the alleged 2008
failure to promote claim – are time-barred.
*7 The statute of limitations governing Whitley's Section
1981 claims is four years. See Jones v. R.R. Donnelley &
Sons Company, 541 U.S. 369 (2004); see also Fernandez
v. M & L Milevoi Management, Inc., 357 F. Supp. 2d 644,
649 (E.D.N.Y. 2005) (“In Donnelley, the Supreme Court
decreed uniformity when it held that a Section 1981 claim
is governed by the four-year statute of limitations if it arose
under a post-1990 Act of Congress.”). 8 The New York City
Administrative Code provides that the statute of limitations
for claims arising under the NYCHRL is three years. See
N.Y.C. Admin. Code § 8-502(d). Whitley's Complaint in
this action was filed on June 14, 2013. (See Docket Entry
No. 1.) Thus, all NYCHRL claims arising prior to June 14,
2010 are time-barred, as are all Section 1981 claims arising
prior to June 14, 2009. Whitley's failure to promote claim,
which arises from a 2008 employment decision, is thus time-
barred under all three statutory schemes. The Court therefore
grants Montefiore's motion for summary judgment insofar as
it seeks dismissal of Whitley's employment discrimination
claims under Title VII, Section 1981 and the NYCHRL that
are based on her failure to receive a promotion in 2008.
2. Lack of Resources and Support
In the context of a Title VII claim, the Second Circuit
“define[s] an adverse employment action as a 'materially
adverse change' in the terms and conditions of employment.”
Sanders v. New York City Human Resources Admin, 361 F.3d
749, 755 (2d Cir. 2004) (quoting Richardson v. New York
State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999)).
“To be materially adverse, a change in working conditions
must be 'more disruptive than a mere inconvenience or
an alteration of job responsibilities' ... Examples of such
a change include 'termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly diminished
material responsibilities, or other indices ... unique to a
particular situation.'” Sanders, 361 F.3d at 755 (quoting Terry
v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). Section 1981
claims are subject to the same standard. See e.g., Henry
v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396, 411
(S.D.N.Y. 2014). To make out this prong of a claim under
the NYCHRL, “a plaintiff must simply show that she was
treated differently from others in a way that was more than
trivial, insubstantial, or petty.” Moore v. Metropolitan Transp.
Authority, 999 F. Supp. 2d 482, 501 (S.D.N.Y. 2013) (internal
quotation marks and citation omitted).
Whitley has failed to satisfy the adverse employment action
or differential treatment prong of the discrimination inquiry
under any of these statutory schemes. Although Whitley
generally asserts that she did not receive appropriate support
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to help with her transition into a new position following
her promotion, it is uncontested that Montefiore sent her
to classes on how to become an effective supervisor and
leader, that she was given time off from work to attend these
classes and that she did not have to pay for them. (Def.
56.1 St. ¶¶ 68-69.) Whitley admits these facts, and points to
no conflicting evidence that might raise a material issue of
fact. Thus, Montefiore has proffered uncontroverted evidence
demonstrating that Whitley did, in fact, receive support
and training upon her promotion. Furthermore, Plaintiff has
proffered no evidence that any similarly-situated employee
was treated differently.
Whitley argues that she never received a personal office or
computer and was therefore “unable to succeed in her position
in large part due to a lack of necessary resources.” (See Pl.
Memo at p. 10.) However, Montefiore's failure to provide
Whitley with her own office or computer does not rise to the
level of an adverse employment action within the meaning
of either Title VII or Section 1981. Indeed, Whitley has
not proffered any evidence that demonstrates that her failure
to receive a computer or office was anything more than a
“mere inconvenience,” and certainly does not point to any
evidence demonstrating that Montefiore's failure to provide
her with such resources was comparable to termination of
employment, a demotion, a decrease in wage or salary, a less
distinguished title, a material loss of benefits, or significantly
diminished material responsibilities. See Sanders 361 F.3d
at 755; see also Berland-Starling v. Disney Pub. Worldwide,
166 F. Supp. 2d 820, 825 (S.D.N.Y. 2001) (“plaintiff claims
that she was not provided with a new computer, but only
received improvements to her existing computer and that she
did not receive training on the so-called 'Oracle project.' These
alleged[ ] ... acts may have been unpleasant for plaintiff,
but they do not amount to anything close to an adverse
employment action”); Vito v. Bausch & Lomb, Inc., No.
07CV6500-CJS, 2010 WL 681230, at *13 (W.D.N.Y. Feb. 23,
2010) (“dissatisfaction with the size of her cubicle and the fact
that she was not given a personal computer” are not enough
for plaintiff to make out prima facie case of discrimination).
It is indisputable that computers were available for her use,
as were rooms for private meetings. (Def. 56.1 St. ¶¶ 52-53.)
Thus, Whitley has failed to demonstrate that she suffered an
adverse employment action for the purposes of Title VII or
Section 1981 analysis. Nor has Whitley offered any evidence
that her failure to receive an office or computer constituted
“differential treatment” as required to make out a claim of
discrimination under the NYCHRL. See Moore 999 F. Supp.
2d at 501. 9 Thus, because Whitley has failed to proffer
evidence sufficient to meet her burden of demonstrating that
she suffered an adverse employment action or was subjected
to differential treatment in terms of the provision of resources
or support, the Court grants Montefiore's motion for summary
judgment to the extent it seeks dismissal of her Title VII,
Section 1981 and NYCHRL discrimination claims insofar as
they are based on the alleged failure to provide resources and
support.
3. Whitley's Termination
*8 It is uncontested that Whitley was terminated from her
position. (See Def. 56.1 St. ¶¶ 116-19; Pl. 56.1 St. ¶¶ 116-19.)
Termination is undoubtedly an “adverse employment action”
within the meaning of the McDonnell Douglas test. See e.g.,
Miller v. Praxair, Inc., 408 F. App'x 408, 410 (2d Cir. 2010)
(“typical examples of actionable adverse employment actions
include termination of employment”) (internal quotation
marks and citation omitted). The Court therefore turns to
the question of whether Whitley has proffered evidence
that her termination occurred under circumstances giving
rise to an inference of discrimination. This inquiry is
contiguous with the Section 1981 question of whether
Whitley has demonstrated that Montefiore exhibited “an
intent to discriminate on the basis of race.” See, e.g., Tovar
v. KLM Royal Dutch Airlines, No. 98CV5178, 2000 WL
1273841, at *5 (S.D.N.Y. Sept. 6, 2000). Similarly, the
NYCHRL requires a demonstration that the complained of
treatment was, at least in part, based on race. Williams v.
Regus Management Group, LLC, 836 F. Supp. 2d 159, 172
(S.D.N.Y. 2011) (holding that, to make out a discrimination
claim under NYCHRL, a plaintiff must “demonstrate by a
preponderance of the evidence that she has been treated less
well than other employees due to unlawful discrimination”)
(internal citation omitted).
Whitley has proffered no evidence that could support a
rational inference of discrimination on the part of Montefiore.
Indeed, in her brief, Whitley makes no argument, and points
to no evidence, in support of the fourth step of the McDonnell
Douglas analysis, arguing instead that Montefiore's proffered
justification for her termination is merely pretextual. (See Pl.
Memo at pp. 7-8.) In making her argument, Whitley glosses
over the essential fourth step in the prima facie portion of the
McDonnell Douglas analysis and, in so doing, fails to present
any evidence indicating that her termination might have been
the result of race-based animus. Her sole proffer is of her
own conclusory deposition testimony in which she makes
generalized complaints of bias toward Hispanics and unfair
treatment. (See Pl. Dep. at, e.g., 352-356.) Such evidence is
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insufficient to defeat a summary judgment motion. See e.g.,
Deebs v. Alstom Transp., Inc., 346 F. App'x 654, 656 (2d Cir.
2009) (“[T]he only 'evidence' cited in plaintiffs' brief is their
own self-serving testimony ... Such evidence is insufficient
to defeat summary judgment”); see also Pfunk v. Cohere
Communications, LLC, 73 F. Supp. 3d 175, 187 (S.D.N.Y.
2014) (“if the only evidence cited is self serving testimony
and no attempt has been made to square that testimony with
'the hard evidence adduced during discovery,' such testimony
is insufficient to defeat summary judgment”) (citing Deebs,
346 F. App'x at 656). Thus, Whitley has failed to establish the
fourth element of her prima facie case for the purposes of both
Title VII and Section 1981 analysis. 10 On this record, the
Court also finds that Whitley has presented no evidence from
which a rational juror could conclude that Montefiore “treated
her less well, at least in part for a discriminatory reason,”
Mihalik, 715 F.3d at 110 n.8. Her NYCHRL claim must
therefore fail as well. The Court therefore grants Montefiore's
motion for summary judgment insofar as it seeks dismissal of
Whitley's discrimination claims based on her termination.
*9 For the foregoing reasons, the Court grants Montefiore's
motion for summary judgment with respect to Whitley's Title
VII, Section 1981 and NYCHRL discrimination claims and
dismisses Causes of Action One, Two and Three in their
entirety.
Whitley's Hostile Work Environment Claims: Causes of
Action Four, Five and Six
Although styled as claims for “racial harassment,” Whitley's
Fourth, Fifth and Sixth Causes of action are appropriately
construed as hostile work environment claims, in that they
allege “constant and severe racial harassment [at work],
including constant use of the 'N' word and severe hostility
based on her race.” (See Complaint ¶¶ 24-31.) Under Title
VII, a hostile work environment claim requires a showing
“(1) that the harassment was 'sufficiently severe or pervasive
to alter the conditions of the victim's employment and create
an abusive working environment,' and (2) that a specific
basis exists for imputing the objectionable conduct to the
employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.
2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149
(2d Cir. 1997).) Courts analyzing hostile work environment
claims consider the totality of the circumstances, including
“the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes
with an employee's work performance.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993). This inquiry has both
objective and subjective prongs: “the misconduct must be
severe or pervasive enough to create an objectively hostile
or abusive work environment, and the victim must also
subjectively perceive that environment to be abusive.” Terry
v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (internal
quotation marks and citation omitted). The standards for
proving such a claim under Section 1981 are substantively
similar. See Patterson v. County of Oneida, N.Y., 375 F.3d
206, 225 (2d Cir. 2004) (“most of the standards applicable
to the conduct alleged to constitute hostile work environment
in violation of Title VII are also applicable to [plaintiff's]
employment claims under § 1981”); see also Fincher v.
Depository Trust and Clearing Corp., 604 F.3d 712, 723-24
(2d Cir. 2010) (“In order to establish a hostile work
environment claim under 42 U.S.C. § 1981, a plaintiff must
show that the workplace was so severely permeated with
discriminatory intimidation, ridicule, and insult that the terms
and conditions of her employment were thereby altered”)
(internal quotation marks and citation omitted).
“The standard for maintaining a hostile work environment
claim is lower under the NYCHRL.” Bermudez v. City of
New York, 783 F. Supp. 2d 560, 579 (S.D.N.Y. 2011). The
NYCHRL imposes liability for harassing conduct that does
not qualify as severe or pervasive. Bermudez, 783 F. Supp.
2d at 579. To survive summary judgment, a plaintiff need
only proffer evidence of the existence of unwanted race-based
conduct, as liability under the NYCHRL is determined by
the existence of unequal treatment. Id. “Petty, slight or trivial
inconveniences,” however, are not actionable. Id. (internal
quotation marks and citations omitted). While the standard is
less severe, the NYCHRL is not meant to operate as a general
civility code. See Kaur v. New York City Health and Hospitals
Corp., 688 F. Supp. 2d 317, 340 (S.D.N.Y. 2010).
*10 Whitley's hostile work environment claim appears to
rest entirely upon her allegations that her subordinates Francis
and Gonzalez, who were persons of color, used profanity
and the “N word” in her presence and at least once to
address her, and that management's response to the conduct
consisted solely of a remark indicating that a “swear jar”
would be established. (See at Pl. Dep. at 51:7-52:18; Pl.
56.1 St. ¶¶ 146-49.) The general use of profanity, when
unconnected to hostility based on a protected characteristic
of a plaintiff, will not, however, support a Title VII hostile
work environment claim. See Brown v. Henderson, 257 F.3d
246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment
at work, whether through subjection to a hostile environment
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or through such concrete deprivations as being fired or being
denied a promotion, is actionable under Title VII only when it
occurs because of an employee's ... protected characteristic.”).
Indeed, “[e]ven when a plaintiff establishes that she was
exposed to an objectively and subjectively hostile work
environment, she will not have a claim ... unless she can also
demonstrate that the hostile work environment was caused
by animus towards her as a result of her membership in a
protected class.” Bermudez, 783 F. Supp. 2d at 578 (internal
quotation marks and citation omitted). Thus, Francis and
Gonzalez's general use of profanity is insufficient to establish
a basis for a viable hostile work environment claim.
Whitley argues that the employees' use of the “N word” in
particular, while speaking with each other, and, at least once in
speaking with Plaintiff, created a hostile work environment.
This argument falls short of the requisite demonstration
of race-based animus. While it is true that courts have
recognized that the use of that particular word standing alone
may establish a hostile work environment (see e.g., Rogers
v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.
1993) (“no single act can more quickly alter the conditions of
employment and create an abusive working environment than
the use of an unambiguously racial epithet such as 'nigger'
by a supervisor in the presence of his subordinates”)), the
context presented by Plaintiff's evidentiary proffers is not
one of racial hostility. Rather, Whitley's alleged complaints
to DeBurra and her account of the use of the word depict
an atmosphere of excessive interpersonal familiarity with,
and insubordination toward, a former co-worker who was
now tasked with supervising vulgar employees. 11 Whitley's
failure to demonstrate race-based hostility similarly dooms
her hostile work environment claim under the NYCHRL.
The Court therefore grants Montefiore's motion for summary
judgment with respect to Whitley's Title VII, Section
1981 and NYCHRL hostile work environment claims and
dismisses Causes of Action Four, Five and Six in their
entirety.
Whitley's Retaliation Claims: Causes of Action Seven, Eight
and Nine
“In order to establish a prima facie case for retaliation
under Title VII, Plaintiff must satisfy four elements: 1)
[she] engaged in a protected activity, 2) Defendants knew
of the protected activity, 3) Defendants took adverse action
against Plaintiff, and 4) a causal connection existed between
the protected activity and the adverse employment action.”
Cretella v. Liriano, 633 F. Supp. 2d 54, 74 (S.D.N.Y.
2009) (citing Kessler v. Westchester County Dept. of Soc.
Servs., 461 F.3d 199, 205–06 (2d Cir. 2006).) The same
standard applies to retaliation claims brought under Section
1981. See Little v. Northeast Utilities Service Co., 299
F. App'x 50, 52 (2d Cir. 2008). The trial court's role in
evaluating a retaliation claim on summary judgment is to
determine whether the proffered admissible evidence would
be sufficient to permit a rational finder of fact to infer a
retaliatory motive. See Hicks v. Baines, 593 F.3d 159, 164
(2d Cir. 2010). Furthermore, the Supreme Court has held
that “Title VII retaliation claims must be proved according to
traditional principles of but-for causation ... [which] requires
proof that the unlawful retaliation would not have occurred
in the absence of the alleged wrongful action or actions of
the employer.” University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517, 2533 (2013). “To establish
a retaliation claim under the NYCHRL, a plaintiff must prove
that: (1) she engaged in a protected activity; (2) her employer
was aware that she participated in such activity; (3) she
suffered an action that would be reasonably likely to deter a
person from engaging in the protected activity; and (4) there
is a causal connection between the protected activity and the
adverse action.” Roberts v. United Parcel Service, Inc., No.
13CV6161-JBW, 2015 WL 4509994, at *21 (E.D.N.Y. July
27, 2015); see also Mihalik, 715 F.3d at 112, 116.
*11 With respect to the first prong of the inquiry, “the term
'protected activity' refers to action taken to protest or oppose
statutorily prohibited discrimination.” Wimes v. Health, 157
F. App'x 327, 328 (2d Cir. 2005) (internal quotation marks and
citation omitted). This requires that a plaintiff demonstrate
that she has asserted a claim of discrimination based on
her status as a member of a protected category. See e.g.,
McDowell v. T-Mobile USA, Inc., 307 F. App'x 531, 534
(2d Cir. 2009). A generalized complaint about perceived
mistreatment without a specific connection to discrimination
based on membership in a protected class is insufficient
to establish a protected activity. See e.g., Mayling Tu v.
OppenheimerFunds, Inc., No. 10CV4971-PKC, 2012 WL
516837, at *9-10 (S.D.N.Y. Feb. 16, 2012).
Whitley's claims again fail. She has proffered no evidence
demonstrating that she engaged in a protected activity. While
Whitley testified at her deposition that she complained to
DeBurra and other supervisors about the behavior of Francis
and Gonzalez, she clearly indicated that her complaints
focused on their insubordination and general demonstrations
of disrespect, rather than on any alleged racial hostility.
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(See Pl. Dep. 59:15-19) (“As I stated before, I would go to
my superior, Ms. DeBurro [sic], in reference to these two
gentlemen as far as them being disciplined, even removed
off of my unit for being insubordinate”; 62:20-63:4 (“Q: And
did you have any conversations with Ms. Crisp about your
issues with these associates? A: Yes, I did. Q: And what do
you recall about those conversations? A: Telling her how
disrespectful they were and how they were disrespectful,
blatantly disrespectful in front of patients.”).) Whitley has
pointed to no evidence demonstrating that she asserted a claim
of illegal discrimination based on her status as a member of a
protected group and thus cannot establish that she engaged in
a “protected activity” for the purposes of making out a prima
facie case of retaliation under Title VII, Section 1981 or the
NYCHRL.
Even if Whitley were able to demonstrate that she had
engaged in a protected activity, her claim must fail because
she has proffered no evidence demonstrating a causal link
between any adverse action she may have suffered and the
alleged protected activity. Any attempt to link the alleged
denial of support and resources to her complaints regarding
Francis and Gonzalez must fail, because the record is clear
that she was never provided with an office or dedicated
computer resources, and her allegations regarding failure to
provide support generally are not related in any temporal
manner to her alleged complaints regarding Francis and
Gonzales. Adverse actions that do not follow allegedly
protected activities do not support claims of retaliation. See
e.g., McAllister v. Queens Borough Pub. Lib., 309 F. App'x
457, 459 (2d Cir. 2009).
As the Court has explained, the only adverse action that
Whitley has proved she suffered is her termination. She has
not proffered any proper evidentiary basis for an inference
of a causal link to the termination of her employment.
“Because Whitley has failed to proffer any direct evidence” of
retaliatory animus, she must rely on circumstantial evidence;
namely the temporal proximity between the alleged protected
activity and retaliatory adverse action. See e.g., Dixon v.
International Federation of Accountants, 416 F. App'x 107,
110 (2d Cir. 2011). It is undisputed that Whitley went on
medical leave and did not return to work after August 12,
2011. (Def. 56.1 St. ¶ 105, Pl. 56.1 St. ¶ 105.) Whitley's
termination occurred on November 21, 2011. (Def. 56.1
St. ¶ 117; Pl. 56.1 St. ¶ 117.) Thus, it is undisputed that
there was a three month gap between the latest point at
which Whitley could have engaged in any protected activity
(August 12, 2011) and her termination (November 21, 2011).
Such a gap is, as a matter of law, insufficient to support
an inference of causation for the purposes of a retaliation
analysis. See Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (holding that three month span between
protected act and adverse action is insufficient to meet the
“very close” proximity requirement); see also Hollander v.
American Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990)
(same); Ponticelli v. Zurich American Ins. Group, 16 F.
Supp. 2d 414, 436 (S.D.N.Y. 1998) (period of two-and-a-half
months is “hardly the close proximity of time” contemplated
to allow a plaintiff to establish the causal nexus element of a
retaliation claim). Thus, because Whitley cannot, as a matter
of law, demonstrate a causal nexus between her termination
and any alleged protected acts she may have engaged in while
at Montefiore, her retaliation claims under Title VII, Section
1981 and the NYCHRL must fail. The Court therefore grants
Montefiore's motion for summary judgment insofar as it seeks
dismissal of Causes of Action Seven, Eight and Nine.
CONCLUSION
*12 For the foregoing reasons, Montefiore's motion
for summary judgment is granted in its entirety. This
Memorandum Opinion and Order resolves Docket Entry
Number 30. The Clerk of Court is respectfully requested to
enter judgment in Defendant's favor and close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 1267788
Footnotes
1 The following facts are undisputed unless otherwise indicated. Facts recited as undisputed are identified
as such in the parties' statements pursuant to S.D.N.Y. Local Civil Rule 56.1 or drawn from evidence as to
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which there is no non-conclusory contrary factual proffer. Citations to the parties' respective Local Civil Rule
56.1 Statements (“Def. 56.1 St.” or “Pl. 56.1 St.”) incorporate by reference the parties' citations to underlying
evidentiary submissions.
2 Although Whitley purports to contest the facts proffered by Montefiore in paragraphs 23 and 25 of its Rule 56.1
Statement, her counter-statements are not directly responsive and she has provided no citations to directly
contradictory evidence. (See Pl. 56.1 St. ¶¶ 23, 25.) The Court therefore deems these facts undisputed.
3 In an uncontroverted portion of her deposition testimony, Whitley indicated that certain subordinates –
including Francis and Gonzalez – used profanity around her. (See Declaration of Marjorie Mesidor in
Opposition to Motion for Summary Judgment, Ex. B, Docket Entry Nos. 45:2-6, Deposition of Latonya Whitley
(“Pl. Dep.”) at 49:7-56:3.) Whitley claims that they often used words such as “shit, fuck, [and] bitch.” (Id. at
50:5-6.) Whitley further claims that they used the word “nigger” regularly in her presence, primarily amongst
each other, but at least once towards her when they called her “my nigga.” (Id. at 51:7-52:18.) While Whitley
claims that she complained about the conduct to DeBurra and that DeBurra announced that she would
institute a “swear jar” monetary penalty system, and also alleges generally that she sent emails regarding the
issue, DeBurra denies that Whitley ever complained about associates using the “N word” at CHCC. (Def. 56.1
St. ¶ 147; Pl. 56.1 St. ¶¶ 146-49.) Furthermore, Whitley did not complain to Rodriguez that her subordinates
were using such language, and did not tell Rodriguez that she had complained to Martin or DeBurra about
the use of such language. (Def. 56.1 St. ¶¶ 150-51.) Whitley's testimony regarding these alleged complaints
put them in the context of insubordination. (See Pl. Dep. at 47:9-54:18, 58:11-60:25.)
4 Whitley again purports to dispute the facts proffered by Montefiore in paragraphs 51 through 53 of their
Rule 56.1 Statement, but fails to make counter-statements that are directly responsive, and fails to identify
contradictory evidence. (See Pl. 56.1 St. ¶¶ 51-53.)
5 Once again, Whitley purports to contest the facts proffered by Montefiore, yet fails to controvert these facts
with relevant evidence. (See Pl. 56.1 St. ¶ 112.) Whitley's deposition testimony that “Dr. Stern was primarily
concerned with the job freeze,” in submitting his letters extending her out of work status does not controvert
the fact that Dr. Stern was representing to Montefiore that Whitley was “not yet ready to return to work.” (See
Declaration of Joseph Field in Support of Motion for Summary Judgment (“Field Decl.”), Docket Entry No.
33-9, Ex. X, Letters from Dr. Stern.)
6 Whitley's deposition testimony indicating her belief that she was “effectively terminated” does not controvert
the fact that she had not, in fact, been terminated. (See Pl. 56.1 St. ¶ 115; see also Declaration of Lawrence
Martin in Support of Motion for Summary Judgment (“Martin Decl.”), Docket Entry No. 32 ¶ 11.)
7 Whitley maintains that the overpayment penalties were not assessed for benefits received during the period
of time in which Plaintiff considers herself to have been “terminated” by Montefiore, an assertion that appears
to be borne out by the time line cited by Montefiore. (Pl. 56.1 St. ¶¶ 142-43.)
8 Section 1981 claims regarding the terms and conditions of employment are authorized by the 1991
amendments to Section 1981. See Fernandez, 357 F. Supp. 2d at 649 (“In the specific case before it,
the Supreme Court held that the employees' wrongful termination, hostile work environment, and failure-to-
transfer claims were governed by the four-year statute of limitations because they were made possible by
the 1991 amendments to Section 1981.”).
9 Indeed, it is undisputed that Whitley was shown an office that she was told she would occupy following the
completion of renovations to the CHCC. (See Def. 56.1 St. ¶ 50; Pl. 56.1 St. ¶ 50.) To the extent that Whitley
alleges that her replacement, a Hispanic woman named “Carmen,” received an office prior to the completion
of these renovations, thus giving rise to an inference of racial animus, Whitley offers only a statement made
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during her deposition as “evidence.” However, Whitley's statement is premised on what another employee
allegedly told her, and thus constitutes inadmissible hearsay. See Kolesnikow v. Hudson Valley Hosp. Center,
622 F. Supp. 2d 98, 114 n.12 (S.D.N.Y. 2009). Moreover, the Reply Declaration of Lawrence Martin proffers
uncontroverted evidence that at the time “Carmen” began at CHCC, “the physical renovations that were being
made while Ms. Whitley was working there were completed ... As a result there was no difficulty in providing
[“Carmen”] with a private office.” (See Reply Declaration of Lawrence Martin, Docket Entry No. 48 ¶ 4.)
10 Moreover, Montefiore has proffered argument with respect to, and evidence of, its legitimate
nondiscriminatory reason for terminating Whitley; to wit, her filing for and collecting unemployment benefits
while on medical leave from her position. (See Def. Memo at pp.13-15; Def. 56.1 St. ¶¶ 94-114, 116-20.) The
Second Circuit has held that an employer's good faith belief that an employee has engaged in fraudulent or
dishonest conduct is a valid, non-discriminatory basis for termination. See, e.g., Roge v. NYP Holdings, Inc.,
257 F.3d 164, 169 (2d Cir. 2001) (holding that employer's belief that employee had fraudulently obtained
disability benefits “provided a legitimate non-discriminatory reason for terminating him.”). In response, Whitley
argues that the existence of an email between Rodriguez and Martin, in which Rodriguez asks whether
Montefiore can terminate Whitley upon her return from medical leave, proves that Montefiore's proffered
legitimate reason is pretextual because the subject email predates Montefiore's knowledge of Whitley's
receipt of any benefits. (See Pl. Memo at pp. 8-9, Mesidor Decl. Exs. CD.) However, Whitley has proffered
no evidence that Montefiore's proffered reason is “pretext masking intentional racial discrimination,” as the
law requires. See Lloyd v. WABC-TV, 879 F. Supp. 394, 402 (S.D.N.Y. 1995) (emphasis added); see also
Clough v. City of New Haven, 29 F. App'x 756, 759 (2d Cir. 2002). Because Whitley has failed to offer any
evidence that considerations of race were involved in Montefiore's decision to terminate her, her opposition
to Montefiore's request for summary judgment on this issue must fail.
11 Despite the arguments Whitley currently presses in her brief, it is clear from the transcript of her deposition
testimony that she subjectively interpreted the use of this language as a demonstration of insubordination,
rather than a race-based affront, at the time she allegedly made her complaints. (See Pl. Dep. at 47:9-54:18,
58:11-60:25.) The Court thus finds that, based on the record before it, no rational finder of fact could conclude
that Whitley has established that Francis' and Gonzalez's use of the “N word” was objectively or subjectively
hostile. This is fatal to her hostile work environment claim.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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