McDowell v. McDonough

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TYRONE MCDOWELL,
Plaintiff,
v.
DENIS MCDONOUGH, Secretary,
Department of Veterans Affairs,
Defendant.
REPORT AND
RECOMMENDATION
Case No. 1-22-cv-00873-JLS-JJM
Pro se plaintiff Tyrone McDowell seeks recovery for alleged harassment and
retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., in
the course of his employment by the Department of Veterans Affairs (“VA”). Complaint [1].1
Before the court is VA Secretary McDonough’s motion seeking dismissal of the Complaint
pursuant to Fed. R. Civ. P. (“Rule”) 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6)
for failure to state a claim upon which relief can be granted [18], which has been referred to me
by District Judge John L. Sinatra, Jr. for initial consideration [19, 28].
Having reviewed the parties’ submissions [18, 30, 322 ], for the following reasons
I recommend that the motion be granted.
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
2 	Plaintiff also filed a sur-reply. [34] However, he did not request permission to file a sur-reply
pursuant to Local Rules of Civil Procedure Rule 7(2)(a)(6): “[a]bsent permission of the Judge hearing the
motion, sur-reply papers are not permitted”. Therefore, I did not consider the sur-reply.
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BACKGROUND
On November 14, 2022, McDowell, proceeding pro se, commenced this action
against his employer, the Department of Veterans Affairs, and others, alleging discrimination
due to his race or color in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).
Complaint [1]. McDowell alleged that based on his race or color, defendant McDonough, as
Secretary of the Department of Veteran Affairs (the “VA”) and his employer the VA Western
New York Healthcare System (the “Buffalo VA”) subjected him to “harassment on the basis of
unequal terms and conditions of my employment”, “retaliation because I complained about
discrimination or harassment”, and “reprisal due to previous EEOC activity” in the course of his
employment. In the narrative section of the complaint, plaintiff also adds that the Buffalo VA
“on the basis of his disability”. [1] at 5.
This claim is related to two others that McDowell filed concerning interrelated
claims of discrimination and retaliation under Title VII. See McDowell v. McDonough, 21-cv-
338 (“Action #1”) and McDowell v. McDonough, 22-cv-843 (“Action #2”). There are motions
for summary judgment pending in Action #1 and a motion to dismiss pending in Action #2. I
filed a Report and Recommendation in each case addressing those motions. Accordingly, only
issues raised by McDowell in his Complaint in this case will be considered. The facts of this
case are largely the same as the facts alleged in those cases.
Briefly, as alleged in the Complaint in this action, and its attachments, McDowell
was a Health Systems Specialist at the Buffalo VA. [1] at 7. Plaintiff’s first complained of the
alleged discrimination to the Equal Employment Office (“EEO”) on September 29, 2016. [1] at
32. He filed charges with the EEOC for the events alleged in this Complaint on December 20,
2016. [1] at 3. Shortly after he was promoted to the Health Systems Specialist role, he was
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assigned additional duties of a Controlled Substance Coordinator (“CSC”) as a collateral duty,
with no additional pay. Id. at 7-8. Plaintiff believed the CSC role should have been classified as
a full time position at the Buffalo VA because it was classified as a full time position at the
Albany VA. Id. at 8, 11-17. However, as discussed extensively in my Report and
Recommendation in Action #1, the CSC position at the Buffalo VA had never been a full-time
position, and the two women (one black woman and one white woman) that performed the role
before him did not receive additional pay. Id. at 33-34. McDowell alleges that his superiors
refused to reassign the CSC duties until January 1, 2017, when it was reassigned to two white
women, also without additional pay. Id. at 8, 33-34. McDowell alleges that he attempted to be
relieved of the CSC duty from October 2010 to January 2017.
In September 2016, the Buffalo VA assigned an additional collateral duty to
McDowell: Contracting Officer’s Representative (“COR”). Id. at 8, 34. Individuals performing
this duty oversee various contracts the Buffalo VA has with other entities “to ensure it is
appropriately established and managed”. Id. at 34. “Dozens” of individuals are assigned COR
duties at any given time and none receive additional pay. Id.
McDowell participated in Alternative Dispute Resolution (“ADR”) with the
Buffalo VA on November 28, 2016 in an attempt to resolve his claims concerning these
collateral duties. Id. at 8. The ADR was unsuccessful, and he filed his EEOC claim on
December 20, 2016. Id. McDowell alleges that after he participated in the ADR, leadership at
the Buffalo VA began “subjecting Plaintiff to continuous discriminatory and retaliatory
employment actions.
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The claims in this action, as stated by the Equal Employment Opportunity
Commission in his administrative claim3 , allege a hostile work environment and retaliation due
to the following fourteen events:
1. 	September 8, 2010: a manager “volunteered” plaintiff for the CSC position,
“used threats and intimidation to force Plaintiff into accepting the position”;
and told plaintiff it would be a temporary position;
2. 	May 3, 2013 to September 29, 2015: the Chief of Staff and facility Director
“contributed to the denial of Plaintiff’s professional growth, training and
potential career advancement, and promotion opportunities” that were
afforded to his peers;
3. 	September 2010 to November 2015: plaintiff was not compensated for the
CSC position;
4. 	September 2010 to November 2016: plaintiff was not compensated for the
CSC position;
5. 	May 3, 2014 to November 2016: management failed to reassign plaintiff’s
collateral duties to other employees;
6. 	May 3, 2013 to November 2016: management failed to reassign plaintiff’s
collateral duties to other employees;
7. 	December 16, 2014: plaintiff received no explanation for being removed from
the Executive Career Field position list;
8. 	September 26, 2016: the Chief of Staff assigned plaintiff the COR collateral
duty;
9. 	October 2016: the Chief of Staff “began to isolate plaintiff, withheld work
assignments, and decreased her communication with plaintiff;
10. January 19, 2017: the Chief of Staff “failed to respond to Plaintiff and gave
Plaintiff a “look of disgust” when he told her “Good morning”;
11. March 2014: plaintiff heard third-hand that an Associate Director said he did
not like plaintiff that he was going to fire plaintiff and plaintiff’s supervisor
did nothing about it;
3 	“A district court may hear only Title VII claims that are included in an EEOC charge or are based
on conduct subsequent to the EEOC charge which is “reasonably related” to those alleged in the EEOC
charge.” Cooper v Xerox Corp., 994 F .Supp. 429, 432 (W.D.N.Y. 1998).
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12. November 21, 2017: the Chief of Staff stated in front of other staff that she
was going to make sure plaintiff’s workers’ compensation claim would not be
approved;
13. November 2017: the Chief of Staff attempted to gain unlawful access to his
medical records; and
14. January 16, 2018: plaintiff became aware that his supervisor disclosed his
workers’ compensation medical information.
[1] at 8-9 and 21-23.
In its motion to dismiss, defendant argues that: McDowell impermissibly split his claims;
several of his claims and this action are time-barred; and he fails to plead claims for hostile
environment or retaliation. See Defendant’s Memorandum of Law [18-1].
DISCUSSION
A. 	Pro Se Pleading Requirements.
Courts must construe a “pro se complaint liberally to raise the strongest
arguments that it suggests. To survive dismissal, however, a complaint must plead enough facts
to state a claim to relief that is plausible on its face, and that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Costabile v. New York City Health and Hospitals Corp., 951 F.3d 77, 80-81 (2d Cir. 2020).
B. 	The Standard Governing a Rule 12(b)(6) Motion
Because I find that plaintiff has failed to plead a claim upon which relief can be
granted, I will address only those arguments that defendant made under Rule 12(b)(6).
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To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face . . . . 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. “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 . . . . Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (internal quotations omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. See also Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citing Iqbal, supra).
In deciding whether to dismiss a complaint under Rule 12(b)(6), this court “is
limited to the facts as asserted within the four corners of the complaint, the documents attached
to the complaint as exhibits, and any documents incorporated in the complaint by reference”.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). I must “assume that all
well-pleaded factual allegations in the complaint are true unless they are contradicted by more
specific allegations or documentary evidence.” Vengalottore v. Cornell University, 36 F.4th 87,
112 (2d Cir. 2022) (internal alterations omitted). That rule is “inapplicable to legal conclusions”.
Iqbal, 556 U.S. at 678 (2009).
C. 	McDowell Has Not Plausibly Alleged a Hostile Work Environment
Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin”. 42 U.S.C. §2000e-2(a)(1). Federal
employees, such as the plaintiff, receive the protections of Title VII through 42 U.S.C. §2000e-
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16: “All personnel actions affecting employees . . . in executive agencies . . . shall be made free
from any discrimination based on race, color, religion, sex, or national origin”.
“To state a claim for a hostile work environment in violation of Title VII, 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 plaintiff’s [race].” Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotations omitted). “This test sets a ‘high bar’
as the plaintiff must show not only that he subjectively perceived the environment to be abusive,
but also that the environment was objectively hostile and abusive.” Sealy v. State University of
New York at Stoney Brook, 834 Fed. Appx. 611, 615 (2d Cir. 2020) (Summary Order).
“The incidents complained of must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive. . . . In determining whether a plaintiff suffered a
hostile work environment, we must 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”. Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir.
2015).
Defendant argues that “[p]laintiff’s allegations do not even approach those cases
where this Court has found allegations sufficient to meet the high bar needed for a hostile work
environment”. [18-1] at 16. McDowell argues that he “was subjected to a series of retaliatory
actions, such as being forced to perform the CSC duties . . denied professional development
opportunities, and isolated from colleagues, as well as acts of threats and intimidation.” [30] at 2.
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First, if plaintiff is alleging that the hostile work environment he encountered was
in retaliation for pursuing his rights under Title VII, the actions he complained of that pre-date
his first complaint of discrimination to the Buffalo VA could not have been part of any
retaliation. 	Plaintiff first contacted an EEO counselor on September 29, 2016. [1] at 32.
However, even if I were to assume that plaintiff’s claims were timely and can be
properly considered as part of his hostile environment claim4 , I agree that McDowell did not
plead sufficient facts in his Complaint to satisfy the elements of a hostile environment claim.
First, he does not allege that any supervisor or any other employee made comments or jokes, or
even alluded to, his race, color, or any disability he might have. Nor do the actions that he
alleged were hostile appear to be intrinsically based upon his race, color, or disability. He has
therefore not alleged that any of the allegedly hostile conduct occurred because of his race, color,
or disability.
Furthermore, the conduct that he complains of falls far short of the type of severe
and pervasive conduct that satisfies the “high bar” for hostile environment claims. Plaintiff’s
claims here are analogous to claims that the Second Circuit has found were not severe and
pervasive enough to state a claim for hostile environment. For example, in Littlejohn, supra, the
Court found that plaintiff had not plead facts sufficient to support a “finding of a hostile
environment so severe and pervasive as to have altered the conditions of Littlejohn’s
employment”. Littlejohn, 795 F.3d at 321. There, plaintiff alleged:
“Baker made negative comments about Littlejohn to Mattingly;
Baker was impatient and used harsh tones with Littlejohn; Baker
distanced herself from Littlejohn when she was nearby; Baker
4 	I considered plaintiff’s argument that assignment to the CSC duties under the law applicable to
retaliation claims in Action #1 and found his claim related to that assignment was time-barred and that the
continuing violation doctrine did not apply. See Action #1, 21-cv-338 [147] at 7-12.
Defendant makes similar arguments here. See [14] at 13-15.
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declined to meet with Littlejohn; Baker required Littlejohn to
recreate reasonable accommodation logs; Baker replaced Littlejohn
at meetings; Baker wrongfully reprimand Littlejohn; and Baker
increased Littlejohn’s reporting schedule. Baker also sarcastically
told Littlejohn ‘you feel like you are being left out,’ and that
Littlejohn did not ‘understand the culture’ at ACS.”
Id.
Similarly, in Fleming v. MaxMara USA, Inc., 371 Fed. Appx. 115 (2d Cir. 2010)
(Summary Order), the Court concluded that plaintiff had not pled a hostile environment claim
where the record contained evidence of one racially motivated remark, followed by other
allegedly harassing events:
“Fleming does not allege any fact to connect this comment to her
other allegations of unfair treatment, which are not facially related
to her race. Moreover, her other allegations are generally quite
minor—she alleges that defendants wrongly excluded her from
meetings, excessively criticized her work, refused to answer work-
related questions, arbitrarily imposed duties outside of her
responsibilities, threw books, and sent rude emails to her. These
incidents do not support a finding of a hostile work environment
that is pervasive or severe.”
Id. at 119.
Here, plaintiff makes similar allegations: he was assigned additional duties
without increased pay; his supervisor gave him a “look of disgust” on one occasion when he said
“good morning”; he heard that another person who was not his supervisor did not like him and
wanted to fire him; his supervisor began to isolate him, withhold work assignments, and
decreased communication with him; a manager to whom he did not report used “threats and
intimidation” to force him to accept the CSC position; management failed to reassign the CSC
and COR collateral duties that were assigned to him; he was removed from an Executive Field
Position list; and denied professional growth, training, and potential career advancement and
promotion opportunities.
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Here, as in Littlejohn and Fleming, plaintiff’s allegations “do not support a
finding of a hostile work environment that is pervasive or severe”. 	Fleming, 371 Fed. Appx. at
119. In addition, none of the allegedly hostile conduct occurred under such circumstances that
one could infer that they happened because of his race, color, or disability. Therefore, I
recommend that plaintiff’s hostile work environment claim be dismissed.
D. 	McDowell Has Not Plausibly Alleged Retaliation
Title VII also prohibits an employer from “discriminat[ing] against any of his
employees . . . because he has opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter”. 42 U.S.C. §2000e-
3(a).
“To establish a prima facie case of retaliation, an employee must show that (1)
[he] was engaged in protected activity; (2) the employer was aware of that activity; (3) the
employee suffered a materially adverse action; and (4) there was a causal connection between the
protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.
2012). Plaintiff’s Complaint fails to allege facts that, if true, would satisfy the “materially
adverse action” element.
Here, because none of the actions that occurred prior to plaintiff’s first contact
with the EEO office on September 29, 2016 could have been retaliatory. I will therefore address
only items nine, ten, twelve, thirteen, and fourteen alleged in plaintiff’s complaint. [1] at 9.
“[I]n the context of a Title VII retaliation claim, an adverse employment action is
any action that could well dissuade a reasonable worker from making or supporting a charge of
discrimination”. Vega v. Hempstead Union Free School District, 801 F.3d 72, 90 (2d Cir. 2015);
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Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006). “This
definition covers a broader range of conduct than does the adverse-action standard for claims of
discrimination under Title VII: The antiretaliation provision, unlike the substantive
discrimination provision, is not limited to discriminatory actions that affect the terms and
conditions of employment.” Vega, 801 F.3d at 90. See also Belton v. Borg & Ide Imaging, P.C.,
512 F. Supp. 3d 433, 446 (W.D.N.Y. 2021) (“‘[a]dverse employment action’ in the retaliation
context is broader than for discrimination claims”). Even so, “Title VII . . . protects individuals
not from all retaliation, but from retaliation that produces an injury or harm”. Mula v. Abbvie,
Inc., 2018 WL 501277, *5 (W.D.N.Y. 2018).
There is no dispute here that plaintiff was engaged in protected activities or that
the Buffalo VA was aware of the protected activity. He filed his first EEOC claim on December
20, 2016 and engaged in ADR concerning his complaints on November 28, 2016. [1] at 3-4.
However, despite the broader definition of adverse employment action in the retaliation context,
McDowell has not alleged an adverse action in his Complaint, because he has not identified any
harm that resulted from those actions.
“[T]he significance of any given act of retaliation will often depend upon the
particular circumstances. Context matters . . . . [A]n act that would be immaterial in some
situations is material in others.” Burlington Northern, 548 U.S. at 69.“[T]he standard is tied to
the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII
complaint.” Id. Here, however, plaintiff has not alleged that he suffered any adverse action as
the result of the incidents described in his Complaint, let alone a material one. He does not
allege any change in his work status, or the loss of any benefit to which he was entitled.
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In his Opposition to Defendant’s Motion to Dismiss, plaintiff argues that his
Complaint adequately alleges a materially adverse action:
“The retaliatory actions Plaintiff experienced – such as being
denied reasonable accommodations, the failure to rotate duties as
promised, and the denial of promotion opportunities . . . were
substantial enough to create a hostile and discriminatory work
environment. . . . The failure to provide reasonable
accommodations and the continuous denial of compensation for
the additional duties Plaintiff was forced to take on, despite the
clear evidence that others were compensated appropriately for
similar work, constitute materially adverse actions.”
[30] at 3. First, plaintiff’s claims concerning the assignment of the CSC position with no
additional pay were resolved in Action #1, so I will not revisit that issue here. McDowell also
fails to point to any factual allegations in his complaint from which one could infer that he
informed his employer of a disability or requested any accommodation, or that he was denied,
applied for, or even indicated an interest in any specific promotion opportunity.
Items twelve, thirteen, and fourteen of plaintiff’s Complaint appear related to
plaintiff’s workers’ compensation claim, and McDowell makes no factual allegation that ties
them to his EEOC claim. Even if true, these allegations suggest that these actions were not
related to plaintiff’s pursuit of his EEOC claims, but rather to events that occurred in his
workers’ compensation claim. In any event, McDowell does not allege in his Complaint that any
materially adverse consequence resulted from these actions. He does not allege that his workers’
compensation claim was denied, or that he lost other benefits to which he was entitled as the
result of these actions.
Items number nine and ten are the only remaining allegations in the Complaint
that post-date McDowell’s initial contact with the EEO office. These include that the Chief of
Staff “began to isolate” him, “withheld work assignments, and decreased communication” with
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him, and, on one occasion, gave him a “look of disgust” and otherwise failed to respond to
plaintiff when he said “Good morning”. [1] at 9. Even if I were to assume that the Chief of Staff
behaved this way due to McDowell’s September 29, 2016 EEO complaint due to the timing,
McDowell does not allege in his Complaint that any of these actions resulted in any adverse
consequence.
Because the actions complained of did not result in any adverse action, I find that
the allegedly retaliatory actions McDowell identifies in his Complaint would not “dissuade a
reasonable worker from making or supporting a charge of discrimination”. Vega, 801 F.3d at 90.
McDowell has not, therefore, plead sufficient facts to satisfy the “materially adverse” element of
a retaliation claim.
CONCLUSION
For these reasons, I recommend that the defendant’s motion to dismiss [18] be
granted. Unless otherwise ordered by Judge Sinatra, any objections to this Report and
Recommendation must be filed with the clerk of this court by October 16, 2025. Any requests for
extension of this deadline must be made to Judge Sinatra. A party who “fails to object timely . . .
waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838 F.
2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
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proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
with these provisions may result in the district judge’s refusal to consider the objections.
Dated: September 29, 2025
__/s/ 	Jeremiah J. McCarthy_________
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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