McDowell v. McDonough et al

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. 1-21-cv-00338-JLS-JJM
Pro se plaintiff Tyrone McDowell seeks recovery for alleged racial discrimination
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)(6) for failure to state a claim upon which relief can be
granted [33], 2 which has been referred to me by District Judge John L. Sinatra, Jr. for initial
consideration [17].
Having reviewed the parties’ submissions [33, 41, 43], for the following reasons I
recommend that the motion be denied.
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
2 	Although Secretary McDonough did not file a Notice of Motion along with his Memorandum of
Law In Support of Motion to Dismiss [33], this was apparently an oversight, as the Certificate of Service
[33-1] states that a Notice of Motion was served upon McDowell. Therefore, in accordance with Rule 61,
I will disregard his failure to docket the Notice of Motion as harmless error.
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 1 of 9

- 2 -
BACKGROUND
McDowell alleges that between October 2010 and January 2017 he was required
to work two full-time positions (Health Systems Specialist and Controlled Substance
Coordinator) while only being compensated for one of them, whereas none of his white
counterparts were subject to that requirement. Complaint [1] at 7; Opposition [41] at 3.3 He
further alleges that once he complained of this treatment, the VA refused to timely provide him a
copy of his 2016 performance review, thereby preventing him from applying for other positions
for which he was qualified. Complaint [1] at 7-8; Opposition [41] at 3-5.
In moving to dismiss, the Secretary argues that McDowell was not subject to an
adverse employment action, that he failed to allege a nexus between the alleged adverse
employment action and his race or color, and that he failed to adequately allege retaliation. See
Secretary’s Memorandum of Law [33].
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
3 	Because McDowell is acting pro se, I “deem [his] complaint to include the facts contained in his
memorandum of law filed in response to [the] motion to dismiss”. Drake v. Delta Air Lines, Inc., 147
F.3d 169, 170, n.1 (2d Cir. 1998); Turner v. Procopio, 2016 WL 11483436, *3 (W.D.N.Y. 2016).
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 2 of 9

- 3 -
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).
“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 . . . . 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).
B. 	Has McDowell Plausibly Alleged Discrimination?
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). “To state a
Title VII . . . discrimination claim, a plaintiff must show that (1) he is a member of a protected
class; (2) he was qualified for the position held; 3) he suffered an adverse employment action;
and (4) the adverse action took place under circumstances giving rise to the inference of
discrimination.” Belton v. Borg & Ide Imaging, P.C., 512 F.Supp.3d 433, 441 (W.D.N.Y. 2021).
In moving to dismiss McDowell’s claim of discrimination, the Secretary argues
that McDowell’s “allegations do not support that he was subject to an ‘adverse employment
action’ . . . . Neither additional job duties nor a delayed performance appraisal is an ‘adverse
employment action’ within the meaning of Title VII”. Secretary’s Memorandum of Law [33] at
5. “An adverse employment action is one which is more disruptive than a mere inconvenience or
an alteration of job responsibilities . . . . 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,
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 3 of 9

- 4 -
or other indices unique to a particular situation”. Feingold v. State of New York, 366 F.3d 138,
152 (2d Cir. 2004).
I agree with the Secretary that, for purposes of a discrimination claim, “[t]he
delay of an annual performance review is not an adverse employment action”. See Secretary’s
Memorandum of Law [33] at 13, quoting Elliott v. National American Insurance Co., 2009 WL
10703152, *3 (W.D. Okla. 2009). However, I do not agree that assigning McDowell additional
duties cannot constitute an adverse employment action. Although the Secretary argues that “[a]n
increased workload in the same job . . . does not constitute an adverse employment action”
(Secretary’s Memorandum of Law [33] at 12), McDowell is not complaining about an increased
workload “in the same job”. “[T]here is a significant difference between additional job duties
and/or collateral duties and the position description of the Controlled Substance Coordinator
which has been . . . categorized as Full-Time Employee (FTE) position”. McDowell’s
Opposition [41] at 6. He alleges that “the VA assigned him the full-time position of Controlled
Substance Coordinator (CSC) while [he] was already performing his primary full-time position
as Health Systems Specialist . . . . Plaintiff was directed to work two full-time positions without
proper compensation for over six years”. Id. at 3 (emphasis in original).
“There are no ‘bright-line rules’ for determining whether an employee has
suffered an adverse employment action.” Jaeger v. North Babylon Union Free School District,
191 F. Supp. 3d 215, 226 (E.D.N.Y. 2016). Therefore, “what ultimately constitutes an adverse
employment action is assessed on a case-by-case basis”. Adlah v. Emergency Ambulance
Services, 2018 WL 3093972, *5 (E.D.N.Y. 2018). “[T]he denial of pay increases [can] constitute
adverse employment actions”, Elliott, 2009 WL 10703152, *3, and requiring McDowell to work
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 4 of 9

- 5 -
two full-time positions, while paying him only for one of them, would certainly seem to fit this
definition.
The Secretary also argues that McDowell fails “to allege a nexus between the
alleged adverse employment action and his race or color”. Secretary’s Memorandum of Law
[33], Point I. However, “at the initial stage of a litigation, the plaintiff's burden is minimal - he
need only plausibly allege facts that provide at least minimal support for the proposition that the
employer was motivated by discriminatory intent.” Adlah, 2018 WL 3093972, *6. “The facts
required . . . to be alleged in the complaint need not give plausible support to the ultimate
question of whether the adverse employment action was attributable to discrimination. They
need only give plausible support to a minimal inference of discriminatory motivation.” Littlejohn
v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)
“Whether the facts give rise to a plausible inference of discrimination is a flexible
standard that can be satisfied differently in differing factual scenarios.” Jaeger, 191 F. Supp. 3d
at 229. McDowell alleges that none of his “white counterparts” were “forced to assume a second
full-time employee position” (McDowell’s Opposition [41] at 5), that he “was the only black
direct report out of 34 and was selected and forced to assume the full-time position of CSC as an
additional duty” (id. at 7-8), and that “his white counterparts were performing the duty of CSC as
a full-time position while he was assigned the responsibility as CSC as a collateral duty”. Id. at
8. These allegations create at least a “minimal inference of discriminatory motivation”.
Littlejohn, supra.
B. Has McDowell 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
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 5 of 9

- 6 -
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).
McDowell alleges that not only did the VA discriminate against him in the terms
and conditions of his employment, but it also retaliated against him for complaining about
discrimination, by failing to timely provide him with a copy of his 2016 performance evaluation.
See Complaint [1] at 7, 8; Opposition [41] at 4 (“[prior to Plaintiff initiating contact with ORM
[Office of Resolution Management] to report discrimination, [in] his previous 13 years of
employment with the VA he always received his performance appraisal in a timely fashion.
However, after contacting ORM, the VA refused to give Plaintiff his performance appraisal
causing him to miss out on multiple employment promotion opportunities with the Department
of Homeland Security”).4
“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). “However, in order to recover for retaliation for having filed such a complaint, the
plaintiff need not prove that [the] underlying complaint of discrimination had merit.” Id.
I have already concluded that the VA’s alleged delay in providing McDowell with
his performance appraisal is not an “adverse employment action” for purposes of a
discrimination claim. However, “in the context of a Title VII retaliation claim, an adverse
4 	McDowell alleges that he was also “subjected to numerous discriminatory/retaliatory
employment actions”, and that his EEOC claim listed “a total of 14 events”. Complaint [1] at 7. However,
since he does not describe these other actions or events, I do not consider them to be part of this case.
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 6 of 9

- 7 -
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); 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”).
“[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. McDowell alleges that the delay in providing him with his performance appraisal
prevented him from applying for other employment opportunities in the Department of
Homeland Security, because “[i]f your last two performance appraisals were not included your
application would be deemed incomplete”. Complaint [1] at 8. Whether or not he would have
obtained those positions is not dispositive as to this claim, for “to retaliate by excluding an
employee from [an event] that contributes significantly to the employee’s professional
advancement might well deter a reasonable employee from complaining about discrimination”.
Burlington Northern, 548 U.S. at 69.
The Secretary argues that “[t]o assert a retaliation claim, a complainant is required
to have had a good faith, reasonable belief that he was opposing an employment practice made
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 7 of 9

- 8 -
unlawful by Title VII . . . . Here, increased work to a promoted employee represents an ordinary
tribulation of the workplace and cannot amount to a good faith, reasonable belief of
discrimination, particularly where the Complaint pleads no discriminatory nexus”. Secretary’s
Memorandum of Law [33] at 13. I disagree. As previously discussed, McDowell alleges more
than a mere increased workload, and sets forth a plausible basis for concluding that there was a
discriminatory nexus.
Finally, the Secretary argues that “if an employer’s conduct before and after an
employee complaint is consistent, the post-complaint conduct is not retaliatory . . . . Here, while
Plaintiff claims that the delay in providing his performance appraisal was retaliatory, he also
admits that the delay began before he filed an EEOC claim”. Secretary’s Memorandum of Law
[33] at 14 (emphasis in original). McDowell responds that his “initial contact with the Office of
Resolution Management (ORM) began on September 29, 2016, prompting [him] and the VA to
participate in Alternative Dispute Resolution (ADR) on November 28, 2016, which resulted in
no resolution. Plaintiff’s initial claim originated before the end of the fiscal year and before
performance appraisals are scheduled . . . . However, after contacting ORM, the VA refused to
give Plaintiff his performance appraisal”. McDowell’s Opposition [41] at 3-4.
“To be sure, informal protests of discriminatory employment practices, including
making complaints to management can constitute protected activity”, provided “that the
employer is put on notice that the plaintiff believes [ ]he is being discriminated against on the
basis of a protected characteristic.” Belton, 512 F. Supp. 3d at 445. Since McDowell alleges that
he complained to the VA concerning discrimination before he filed an EEOC complaint
(McDowell’s Opposition [41] at 14), and that the delay in processing his performance evaluation
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 8 of 9

- 9 -
followed that initial complaint, he has adequately alleged a claim for retaliation. Whether he can
ultimately prove that the VA discriminated or retaliated against him is a question for another day.
CONCLUSION
For these reasons, I recommend that the Secretary’s motion to dismiss [33] be
denied. Unless otherwise ordered by Judge Sinatra, any objections to this Report and
Recommendation must be filed with the clerk of this court by January 9, 2023. 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
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: December 21, 2022
__________________________________
JEREMIAH J. MCCARTHY
United States Magistrate Judge
Case 1:21-cv-00338-JLS-JJM Document 49 Filed 12/21/22 Page 9 of 9