Szala v. New York City Department of Transportation et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ANTONIO SZALA,
Plaintiff,
-against-
NEW YORK CITY DEPARTMENT OF
TRANSPORTATION and LEON
HEYWARD, Deputy Commissioner
Sidewalk Inspection Management,
Defendants.
23-CV-7778 (NRM) (CHK)
MEMORANDUM AND ORDER
NINA R. MORRISON, United States District Judge:
Plaintiff Antonio Szala, proceeding pro se, brings this action under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging discrimination, hostile
work environment, and retaliation. 	He also brings a First Amendment retaliation
claim under the U.S. Constitution, U.S. Const. amend. I, and claims of discrimination,
hostile work environment, and retaliation under New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 296, and New York City Human Rights Law
(“NYCHRL”). 	N.Y.C. Admin. Code § 8-101 et seq. 	Plaintiff’s claims revolve around
Defendant 	New 	York 	City 	Department 	of 	Transportation’s 	(“DOT”) 	alleged
discrimination and hostile treatment of him based on his Guyanese national origin
and alleged retaliation against him for filing complaints about the DOT. Defendants
have moved to dismiss the complaint in its entirety.
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For the reasons below, the Court GRANTS Defendants’ motion to dismiss as to
Plaintiff’s federal claims and declines to exercise supplemental jurisdiction over
Plaintiff’s state law claims.
FACTUAL BACKGROUND
Plaintiff’s Amended Complaint asserts the following facts, which the Court
must accept as true for purposes of Defendants’ motion to dismiss. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Plaintiff began his employment with the DOT as an Apprentice Inspector in
the Division of Sidewalk Inspection and Management in January 2020. 	Amended
Compl. (“Am. Compl.”) ¶ 1, ECF No. 23 (July 12, 2024). 	Plaintiff is of Guyanese
national origin. 	Id. ¶ 2. After Plaintiff requested proper training, he overheard his
supervisors remark, in sum and substance, that “all these Guyanese are like this”
when he was leaving the meeting. 	Id. ¶ 7. 	Plaintiff alleges that he has been
involuntarily transferred to multiple locations and placed under the supervision of
many different advisors following his various complaints to his employer’s Equal
Employment 	Opportunity 	office 	(“EEO”) 	and 	the 	federal 	Equal 	Employment
Opportunity Commission (“EEOC”) about the daily harassment he experienced and
the lack of training he received. 	Id. ¶¶ 4, 9, 13. 	In addition, the daily inspection
reports submitted by Plaintiff were altered or deleted, and his supervisors falsely
claimed that the reports were incorrect or incomplete. Id. ¶ 11. Plaintiff also alleges
that he received inadequate training, suffered a decrease in work hours, received
multiple 	disciplinary 	write-ups, 	overheard 	derogatory 	comments 	regarding 	his
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national origin, and experienced disparate treatment relative to his non-Guyanese
colleagues. Id. ¶ 5.
PROCEDURAL BACKGROUND
Plaintiff initiated this action on October 17, 2023. Compl., ECF No. 1. He filed
his Amended Complaint on July 12, 2024. Am. Compl. Defendants moved to dismiss
the action on September 12, 2024. Mot. to Dismiss, ECF No. 24; see also Def. Mem.
in Supp. of Mot. to Dismiss, ECF No. 24-1; Pl. Mem. in Opp’n to Mot. to Dismiss, ECF
No. 25; Def. Reply in Supp. of Mot. to Dismiss, ECF No. 26.
The Court concluded that review of the earlier charges and Notice of Right to
Sue letters mentioned in Plaintiff’s Amended Complaint1 may be necessary for a full
review of Defendant’s Motion to Dismiss and directed the parties to file these
additional documents. Dkt. Order dated Sep. 24, 2025.
The additional documents provided by the parties establish that Plaintiff filed
his first charge of discrimination with the New York State Division of Human Rights
(“DHR”) and the EEOC on July 6, 2021. Charge of Discrimination (“First Charge”),
ECF No. 30 at 2–5.2 He received the corresponding Notice of Right to Sue Letter on
January 13, 2022. Dismissal and Notice of Rights (“First Right to Sue Letter”), ECF
1 In Plaintiff’s Amended Complaint, he attaches an EEOC Notice of Right to
Sue letter dated August 8, 2023. 	Determination and Notice of Rights (“Operative
Right to Sue Letter”), ECF No. 23 at 16–19. Plaintiff also alleges that he filed charges
with the EEOC or his EEO counselor on July 6, 2021, and July 28, 2022, and that he
received additional EEOC Notice of Right to Sue letters dated January 13, 2024, and
March 23, 2023. Am. Compl. at 6.
2 All page references use ECF pagination except where noted.
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No. 30 at 6–7. Plaintiff filed his second charge of discrimination with the DHR and
the EEOC on May 25, 2022. 	Charge of Discrimination (“Second Charge”), ECF No.
30 at 9–15. He received the corresponding Notice of Right to Sue Letter on March 23,
2023. 	Determination and Notice of Rights (“Second Right to Sue Letter”), ECF No.
30 at 16. 	Plaintiff, who filed his initial Complaint on October 17, 2023, did not
commence action in federal court within ninety days from the issuance of the first
two Right to Sue Letters.
Plaintiff filed his third charge of discrimination with the EEOC on July 28,
2022. 	Charge of Discrimination (“Operative Charge”), ECF No. 31 at 2–4. 	He
received the corresponding Notice of Right to Sue Letter on August 8, 2023.
Operative Right to Sue Letter at 16. Plaintiff commenced action in this Court within
ninety days from the issuance of the third Operative Right to Sue Letter.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft, 556 U.S. at 678 (quoting 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 is liable for the misconduct
alleged.” 	Id. at 663. 	Courts “must construe [a complaint] liberally, accepting all
factual allegations therein as true and drawing all reasonable inferences in the
plaintiffs’ favor.” Sacerdote v. N.Y. Univ., 9 F.4th 95, 106–07 (2d Cir. 2021). However,
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courts must also “disregard conclusory allegations, such as ‘formulaic recitation[s] of
the elements of a cause of action.’” Id. at 107 (quoting Twombly, 550 U.S. at 555).
Because Plaintiff is proceeding pro se, the Court must “liberally” construe his
submissions and interpret them “to raise the strongest arguments that [they]
suggest[].” Peralta v. New York City Dep’t of Educ., No. 21-CV-6833 (EK) (LB), 2023
WL 6201507, at *3 (E.D.N.Y. Sep. 22, 2023) (quoting Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010)); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (collecting cases). 	However, “‘threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice,’ even
for a pro se plaintiff.” Peralta, 2023 WL 6201507 at *3 (quoting Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009)).
DISCUSSION
For the reasons discussed below, Plaintiff’s Title VII claims are time-barred,
and Plaintiff has failed to state a First Amendment retaliation claim. 	Because the
Court grants Defendant’s motion to dismiss all of Plaintiff’s federal claims, it declines
to exercise supplemental jurisdiction on his state law claims of discrimination, hostile
work environment, and retaliation under NYSHRL and NYCHRL.
I. 	Plaintiff’s Title VII claims are time-barred.
Plaintiff’s Title VII claims of discrimination, hostile work environment, and
retaliation are time-barred because he did not commence action in federal court
within ninety days from the issuance of the First or Second Right to Sue Letter, which
were based on the same operative facts as his third Operative Right to Sue Letter.
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“Title VII requires that a plaintiff file a complaint in a United States District
Court within ninety days of receiving a right-to-sue letter from the EEOC.” Allen v.
City of New York, No. 18-CV-9663 (JGK), 2019 WL 5450874, at *5 (S.D.N.Y. Oct. 23,
2019) (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) and 42
U.S.C. § 2000e-5(f)(1)). 	“When a plaintiff receives multiple right-to-sue letters from
the EEOC, the plaintiff has ninety days from the issuance of the first right-to-sue
letter to commence the action in federal court if the letters are based upon the same
underlying facts.” Id. (citation omitted). “Otherwise, the time limitations of 42 U.S.C.
§ 2000e–5(f)(1) would be meaningless, because potential Title VII plaintiffs could
evade those requirements simply by seeking additional Notices of Right to Sue
whenever they pleased.” 	Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d
827, 828 (2d Cir. 1986) (citations omitted).
Plaintiff received his first EEOC determination on January 13, 2022. See First
Right to Sue Letter at 6. He received the second EEOC determination on March 23,
2023. 	See Second Right to Sue Letter at 16. 	However, Plaintiff did not commence
the action in federal court until October 17, 2023. See Compl. A closer examination
of the allegations that Plaintiff made in the three Charges of Discrimination reveals
that the various Right to Sue Letters are based upon the same underlying facts. All
three Charges allege that Plaintiff experienced discrimination based on his Guyanese
national original and faced retaliation for filing complaints with the DOT EEO and
the 	EEOC, 	and 	all 	three 	Charges 	allege 	that 	he 	experienced 	a 	hostile 	work
environment. 	See 	generally 	First 	Charge; 	Second 	Charge; 	Operative 	Charge.
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Significantly, the only factual allegations in the Amended Complaint that might
support an inference of national origin discrimination occurred prior to the First
Charge. 	Am. Compl. ¶ 7 (“On or about March 10, 2020, as I was leaving a meeting
with Mr. Reyes and Mr. Rashad where I requested proper training. I overheard Mr.
Reyes comment to Mr. Rashad, in sum and substance, ‘all these Guyanese are like
this.’” (emphasis added)).
Moreover, the EEOC made identical determinations as to each of Plaintiff’s
Charges. 	See First Right to Sue Letter at 6 (“The EEOC issues the following
determination: The EEOC will not proceed further with its investigation, and makes
no determination about whether further investigation would establish violations of
the statute. This does not mean the claims have no merit. This determination does
not certify that the respondent is in compliance with the statutes. The EEOC makes
no finding as to the merits of any other issues that might be construed as having been
raised by this charge.”); Second Right to Sue Letter at 16 (same); Operative Right to
Sue Letter at 16 (same).
Plaintiff also acknowledged in both subsequent Charges that they were based
on the same alleged course of conduct. In the Second Charge, Plaintiff wrote:
This situation continued after I filed a complaint against DOT NYC, that
investigation was completed [on] 01/13/2022, Case# 520-2021-00660, I
was giv[en] a letter with right to sue by the EEOC. Which I refused to
after thinking I could’ve work[ed] things out with my management, and
the situation came to a stop, but things just got more hostile.
Second Charge at 13 (emphasis added). In the Operative Charge, Plaintiff wrote:
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[O]n or around July 6, 2021, I submitted a Charge of Discrimination to
the [EEOC]. On or around January 13, 2022, I was issued a Notice of
Right to Sue. However, instead of suing, I tried unsuccessfully to resolve
the issue internally. Since the 90 days connected to the receipt of my
Notice of Right to Sue have passed, my situation remain[s] unresolved
and I have continued to experience ongoing discrimination and hostile
retaliatory behaviors by my supervisors.
Operative Charge at 2 (emphasis added).
These statements make clear that these latter Charges were based upon the
same underlying facts, and Plaintiff only sought the Operative Right to Sue Letter
because he believes he was unable to resolve internally the discrimination and
retaliation that he alleges he experienced before he filed his First Charge. 	These
statements also indicate that Plaintiff was aware of the 90-day statutory deadline to
file a federal court action but elected not to do so. Moreover, both the Second Charge
and the Operative Charge specifically refer to alleged retaliation that occurred after
Plaintiff filed the First Charge and received the First Right to Sue Letter on January
13, 2022, underscoring the factual overlap between the Second and Operative
Charges.
The conduct Plaintiff alleged in the third Operative Charge is reasonably
related to the conduct alleged in both the First and Second Charges. Because Plaintiff
did not commence action in federal court within 90 days from the issuance of the
Second Right to Sue Letter, and because the Operative Charge is based upon the
same underlying facts as the First and Second Charges, his Title VII claims are time-
barred. 	See Allen, 2019 WL 5450874, at *5 (holding that the time to sue must be
measured from the first of multiple right-to-sue letters “if the letters are based upon
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the same underlying facts”); Soso Liang Lo, 787 F.2d at 828 (explaining that this rule
is necessary to preserve the time limitations mandated in 42 U.S.C. § 2000e–5(f)(1));
cf. Dahbany-Miraglia v. Queensboro Cmty. Coll., No. 03-CV-8052 (SAS), 2004 WL
1192078, at *4, *6–7 (S.D.N.Y. May 27, 2004) (noting that Soso Liang Lo can be
distinguished where charges are “distinct enough to warrant separate findings by the
EEOC” and holding that a new charge may survive the 90-day time bar where it
“allege[s] discrete acts of discrimination that cannot be considered reasonably related
to the earlier charges”). 	Accordingly, this Court is constrained to dismiss Plaintiff’s
federal Title VII claims.
II. 	Plaintiff has failed to state a First Amendment retaliation claim.
Plaintiff’s 	Complaint 	also 	asserts 	a 	retaliation 	claim 	under 	the 	First
Amendment to the United States Constitution; he argues that the DOT unlawfully
retaliated against him for making complaints and raising concerns about the lack of
workplace training. 	See Am. Compl. ¶¶ 13–14, 25–26, 30, 42, 48. 	However, the
workplace 	speech 	and 	alleged 	retaliation 	that 	Plaintiff 	cites 	in 	his 	Amended
Complaint does not state a claim under the First Amendment.
The Second Circuit “ha[s] described the elements of a First Amendment
retaliation claim in several ways, depending on the factual context.” 	Williams v.
Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). 	Where a plaintiff is a public
employee, to establish a prima facie case of First Amendment retaliation, the plaintiff
must show that “(1) the speech or conduct at issue was protected; (2) the defendant
took adverse action against the plaintiff; and (3) there was a causal connection
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between 	the 	protected 	speech 	and 	the 	adverse 	action.” 	Kohutka 	v. 	Town 	of
Hempstead, 994 F. Supp. 2d 305, 317–18 (E.D.N.Y. 2014) (citing Scott v. Coughlin,
344 F. 3d 282, 287 (2d Cir. 2003)).
“[I]n assessing the first prong of the retaliation test — whether a public
employee’s speech is protected — [courts] must consider ‘two separate subquestions’:
(1) whether the employee ‘spoke as a citizen rather than solely as an employee,’ and
(2) whether he spoke on ‘a matter of public concern.’” Shara v. Maine-Endwell Cent.
Sch. Dist., 46 F.4th 77, 82–83 (2d Cir. 2022) (quoting Matthews v. City of New York,
779 F.3d 167, 172 (2d Cir. 2015)).
With regards to the first subquestion, Plaintiff spoke solely as an employee
when he made the statements at issue here. 	“[W]hen public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” 	Garcetti v. Ceballos, 547 U.S. 410, 421
(2006). “The objective inquiry into whether a public employee spoke ‘pursuant to’ his
or her official duties is ‘a practical one.’” Weintraub v. Bd. of Educ. of City Sch. Dist.
of City of New York, 593 F.3d 196, 202 (2d Cir. 2010) (quoting Garcetti, 547 U.S. at
424). “[U]nder the First Amendment, speech can be ‘pursuant to’ a public employee’s
official job duties even though it is not required by, or included in, the employee’s job
description, or in response to a request by the employer.” Id. at 203.
In this case, Plaintiff’s speech concerned, inter alia, the lack of training he
received, the alteration or deletion of his reports, the loss of overtime work, and the
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lack of payment for his time serving on jury duty. 	See, e.g., Am. Compl. ¶¶ 11–12,
15–16, 48. 	All of these are “part-and-parcel of his concerns about his ability to
properly execute his duties” and directly related to the terms and conditions of his
employment. 	Weintraub, 593 F.3d at 203 (finding that a public-school teacher was
speaking as an employee when he complained to others and filed a formal grievance
with his union representative about his supervisor’s failure to discipline a child who
threw a book at him); see also Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012) (finding
that a payroll clerk’s speech to her superiors about pay discrepancies was unprotected
because it was part of her job responsibilities).
Plaintiff’s statements related only to his own official job duties and what he
perceived as the unfair treatment he alone received on the job. 	This distinguishes
his case from those in which plaintiffs speak as citizens and are entitled to First
Amendment protection, because they are airing broader grievances that are “not in
furtherance of the execution of one of [their] core duties.” Weintraub, 593 F.3d at 203;
see also Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414 (1979)
(finding that a teacher’s communication with her principal about the school's alleged
racially discriminatory practices was constitutionally protected and emphasizing
“that a public employee [does not forfeit] his protection against governmental
abridgement of freedom of speech if he decides to express his views privately rather
than publicly”); Matthews, 779 F.3d at 174 (finding that an NYPD police officer spoke
as a citizen when he reported the existence of a quota system in his precinct, because
[s]uch policy-oriented speech was neither part of his job description nor part of the
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practical reality of his everyday work”); Dillon v. Suffolk Cnty. Dep’t of Health Servs.,
917 F. Supp. 2d 196, 210 (E.D.N.Y. 2013) (distinguishing Weintraub and finding that
the plaintiff, a physician, spoke as a citizen when her “complaints referred to systemic
mistreatment and corruption extending outside of her own personal duties and
affecting inmates with whom she had no personal or job connection”).
With regards to the second subquestion, Plaintiff does not make a colorable
allegation that any of his individual complaints might “be fairly considered as
relating to any matter of political, social, or other concern to the community.” Jackler
v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (quoting Connick v. Myers, 461 U.S. 138,
146 (1983)). 	In Jackler, by contrast, the Court found that “police malfeasance
consisting of the use of excessive force is plainly a matter of public concern” because
it implicates “public safety and welfare — as well as preservation of the public fisc.”
Id. at 236–37; cf., 461 U.S. at 148 & n.8 (finding that an assistant district attorney’s
questionnaire surveying fellow staff members about the office transfer policy, office
morale, and other employment-related questions did not implicate matters of public
concern, while contrasting it with the plaintiff in Givhan who “protest[ed] racial
discrimination — a matter inherently of public concern”); Shara, 46 F.4th at 88
(finding 	that 	a 	bus 	driver’s 	arguments 	with 	fellow 	school 	district 	personnel
“concerning the frequency of bus safety reports does not rise to the level of speech
involving a matter of public concern [because it] concerned an internal work dispute
over paperwork that would not be of interest to the public”). 	For, as the Second
Circuit has instructed, “speech does not involve a matter of public concern when it
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‘principally focuses on’ the speaker’s personal issues or speech ‘that is calculated to
redress personal grievances,’ even if it also incidentally ‘touch[es] on a matter of
general importance.’” 	Id. at 85 (quoting Montero v. City of Yonkers, 890 F.3d 386,
399–400 (2d Cir. 2018)). Here, Plaintiff has not pleaded that he spoke on a matter of
public concern when he submitted his complaints to the DOT.
Because the facts Plaintiff has pleaded do not satisfy the first prong of the
retaliation test and show that his speech was protected, his Amended Complaint fails
to establish a prima facie case of First Amendment retaliation. See, e.g., Kalderon v.
Finkelstein, 495 F. App’x 103, 108 (2d Cir. 2012) (affirming district court’s dismissal
of pro se plaintiff’s First Amendment claim because plaintiff “was acting pursuant to
her official duties” (citation modified)); Foy v. New York State Unified Ct. Sys., 740 F.
Supp. 3d 136, 153 (E.D.N.Y. 2024), appeal dismissed, No. 24-2242, 2025 WL 2470039
(2d Cir. Mar. 12, 2025) (dismissing pro se plaintiff’s First Amendment claim because
plaintiff’s speech “amounted to a discussion of personal grievances rather than
protected speech” (citation modified)). 	Accordingly, Plaintiff’s First Amendment
retaliation claim must also be dismissed.
III. 	The Court declines to exercise supplemental jurisdiction over
Plaintiff’s state law claims.
Plaintiff raises state law claims of discrimination, hostile work environment,
and retaliation under NYSHRL and NYCHRL. See Am. Compl. at 4. A district court
“may decline to exercise supplemental jurisdiction over a claim . . . if the district court
has 	dismissed 	all 	claims 	over 	which 	it 	has 	original 	jurisdiction.” 	28 	U.S.C.
§ 1367(c)(3). The Supreme Court has indicated that “decisions of state law should be
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avoided both as a matter of comity and to promote justice between the parties,” and
that “if the federal claims are dismissed before trial, . . . the state claims should be
dismissed as well.” United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); see also
Denney v. Deutsche Bank AG, 443 F.3d 253, 266 (2d Cir. 2006) (“A district court
usually should decline the exercise of supplemental jurisdiction when all federal
claims have been dismissed at the pleading stage.”). 	There is no reason to depart
from that general rule here.
Thus, the Court will not exercise supplemental jurisdiction over Plaintiff’s
state law claims. 	See, e.g., Graves v. Goodnow Flow Ass’n, Inc., 746 F. App’x 45, 48
(2d Cir. 2018) (finding that, “[b]ecause there was no basis for federal subject matter
jurisdiction, the district court properly declined to exercise supplemental jurisdiction
over [pro se plaintiff’s] state law claim”); Corley v. Vance, 365 F. Supp. 3d 407, 462–
63 (S.D.N.Y. 2019) (declining to exercise supplemental jurisdiction over pro se
plaintiff’s state law claims after dismissing his constitutional claims), aff’d sub nom.
Corley v. Wittner, 811 F. App’x 62 (2d Cir. 2020). 	Plaintiff’s claims are dismissed
without prejudice for Plaintiff to pursue those claims in state court.
/ / /
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CONCLUSION
For the reasons discussed above, the Court GRANTS Defendants’ motion to
dismiss with regard to all of Plaintiff’s federal claims. The Court declines to exercise
supplemental jurisdiction on Plaintiff’s state law claims. 	The Clerk of Court is
respectfully directed to enter judgment, mail a copy of the Memorandum and Order
and the Judgment to pro se Plaintiff, and close this case.
SO ORDERED.
/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: November 12, 2025
Brooklyn, New York
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