Collazo v. Social Services

Filing 29

ORDER granting in part and denying in part 18 Motion to Dismiss. Signed by Judge Victor A. Bolden on 9/20/2017. (Williams, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALFONSO COLLAZO,
Plaintiff,

:
:
:
v.
:
:
STATE OF CONNECTICUT
:
DEPARTMENT OF SOCIAL SERVICES, :
Defendant.
:

CASE NO. 3:16-cv-00528 (VAB)

RULING ON MOTION TO DISMISS
Alfonso Collazo (“Plaintiff”), pro se, brings employment discrimination and retaliation
claims against the State of Connecticut Department of Social Services (“Defendant,” or “DSS”)
under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title
VII”), and the Connecticut Fair Employment Practices Act (“CFEPA”). DSS has moved to
dismiss all of Mr. Collazo’s claims under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Def. Mot. to Dismiss, ECF No. 18.
For the reasons outlined below, DSS’s [18] Motion to Dismiss is GRANTED IN PART
AND DENIED IN PART. The motion is GRANTED as to Mr. Collazo’s disability claims
under the ADA, and the motion is DENIED as to Mr. Collazo’s hostile work environment and
retaliation claims under Title VII.
I.

FACTUAL SUMMARY1
Alfonso Collazo, who is Hispanic, worked for DSS as a shopkeeper for over twenty-six

(26) years. Compl. at 3, ECF No. 1. He claims that his duties in that role were primarily
physical, and that, in 2005, he suffered a back injury in the workplace. Id. Following this injury,

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The following facts are taken from Mr. Collazo’s Complaint, ECF No. 1.

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his doctor ordered him to perform only “light duty” without “bending or lifting.” Id. He alleges
that his superiors were aware of these physical limitations. Id.
In February of 2014, DSS assigned him a new supervisor, Bernard Szreders. Id.
According to Mr. Collazo, in March of 2014, Mr. Szreders called him “boy” on two occasions.
CHRO Compl. at 2, Compl. Ex. B, ECF No. 1-2.2 Mr. Collazo alleges that he told Mr. Szreders
not to call him “boy,” and that, in response, Mr. Szreders stated: “Great. Now I have to deal with
this Spic who I’d rather put a bullet in, than argue with.” Id.
Later that same month, Mr. Collazo states that he reported this interaction to DSS’s
Director of Affirmative Action, Astread Ferron-Poole, as well as to the Director of Personnel and
the Deputy Commissioner. Id. at 2; Compl. at 3, ECF No. 1. Mr. Collazo claims that, following
this internal complaint, he was subjected to harassment in the workplace that ultimately
concluded with his departure. Id. He states that, following his internal complaint, Mr. Szreders
docked his pay on May 22, 2014 after a doctor’s appointment took longer than expected,
upgraded a verbal warning into a written warning against Mr. Collazo in April 2014, denied Mr.
Collazo’s requests for vacation days, and “micromanaged” his activities, including by requiring
him to complete a daily report and questioned him about the amount of time he would spend in
the restroom. CHRO Compl. at 3, Compl. Ex. B, ECF No. 1-2.
Mr. Collazo also claims that Mr. Szreders made his work environment difficult by
deliberately disregarding Mr. Collazo’s doctor’s orders, exacerbating his back injury. Id.
According to Mr. Collazo, Mr. Szreders ordered him to perform physical duties despite clear
doctor’s orders that he was to be restricted to “light duty with no bending or lifting....” Id. Mr.

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Mr. Collazo’s Complaint includes all facts alleged in his CHRO Complaint, which he attached to his Complaint as
Exhibit B. See Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002) (pleadings include “any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”) (citation and
internal quotation marks omitted); see also Fed. R. Civ. P. 10(c).

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Collazo also alleges that, as an accommodation to his physical limitations, he requested a transfer
to the Purchasing Department from his post at the Facilities Management Department, where he
was required to perform more physical labor, but his request was denied. CHRO Compl. at 3,
Compl. Ex. B, ECF No. 1-2. Mr. Collazo alleges that he suffered severe depression as a result of
this treatment, and that he has not been able to return to work in this environment given his
physical limitations. Id.
On September 1, 2014, Mr. Collazo filed for disability retirement from the State of
Connecticut, and, on March 14, 2016, DSS notified him that they were no longer holding his
position. Compl. at 3, ECF No. 1. Mr. Collazo filed an administrative complaint with the
Connecticut Commission on Human Rights and Opportunities (“CHRO”) on June 16, 2014, and
the Equal Employment Opportunities Commission (“EEOC”) issued a release of jurisdiction on
February 9, 2015. CHRO Compl., Compl. Ex. B, ECF No. 1-2; EEOC Letter, Compl. Ex. A,
ECF No. 1-1. He then filed suit in this Court on April 5, 2016.
II.

STANDARD OF REVIEW
A district court may not entertain a case where it lacks subject matter jurisdiction. See

Fed. R. Civ. P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case
is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it.”). Generally, the plaintiff bears
the burden to prove, by a preponderance of the evidence, that the court has subject matter
jurisdiction over its claims. Id. This burden is met “as long as [the] complaint states a colorable
federal claim.” Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (citation omitted).
When reviewing a motion to dismiss under Rule 12(b)(1), “a court must accept as true all
material factual allegations in the complaint.” Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d

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129, 131 (2d Cir. 1998) (citation omitted). The court, however, must also refrain from “drawing
from the pleadings inferences favorable to the party asserting [jurisdiction].” APWU v. Potter,
343 F.3d 619, 623 (2d Cir. 2003) (citation omitted).
A district court may also dismiss a case for failure to state a claim under Fed. R. Civ. P.
12(b)(6). In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
factual allegations sufficient to “raise a right to relief above the speculative level” and “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
555, 570 (2007). A claim is facially plausible if “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). Although “detailed factual allegations”
are not required, a complaint must offer more than “labels and conclusions,” or “a formulaic
recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual
enhancement.” Twombly, 550 U.S. at 555, 557 (2007). Plausibility at the pleading stage is
nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very
remote and unlikely.” Id. at 556 (internal quotation marks omitted).
Cases brought by pro se plaintiffs must be reviewed “with a lenient eye, allowing
borderline cases to proceed.” Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (citation
omitted). Generally, pro se litigants “are entitled to a liberal construction of their pleadings,
which should be read ‘to raise the strongest arguments that they suggest.’” Green v. United
States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996)); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that the allegations in a pro se
complaint are “h[e]ld to less stringent standards than formal pleadings drafted by lawyers”).

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III.

DISCUSSION
DSS seeks dismissal of Mr. Collazo’s Complaint in its entirety. DSS argues that the

ADA and CFEPA claims should be dismissed under Rule 12(b)(1) for lack of subject matter
jurisdiction, asserting that such suits are barred by the Eleventh Amendment. He also seeks
dismissal of the Title VII hostile work environment and retaliation claims under Rule 12(b)(6),
arguing that (1) the racial slur alleged by Mr. Collazo is insufficient to state a hostile work
environment claim; and (2) the alleged adverse actions are insufficient to support a retaliation
claim.
For the reasons outlined below, DSS’s motion to dismiss is granted as to Mr. Collazo’s
ADA and CFEPA claims and denied as to Mr. Collazo’s Title VII claims.
A. ADA
DSS seeks dismissal of Mr. Collazo’s disability claims under the ADA because the
Eleventh Amendment prevents this Court from having subject matter jurisdiction over those
claims. In support of this argument, DSS explains that Title I of the ADA provides the exclusive
remedy for disability suits against employers with fifteen or more employees and that a plaintiff
may not bring claims against a state agency under this statutory provision. Def. Mem. in Supp.
at 5-7, ECF No. 18. The Court agrees.
Title I of the ADA, as amended, prohibits a private, state, or local government employer
with fifteen or more employees from discriminating against a qualified individual with a
disability. 42 U.S.C. §§ 12101, et seq. Title I explicitly addresses employment, 42 U.S.C. §
12111, and provides the exclusive remedy for employees making discrimination claims against
employers covered by that Title. See Mary Jo Co. v. New York State and Local Retirement
System, 707 F.3d 144, 171 (2d Cir. 2013) (“[T]he [ADA] unambiguously limits employment

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discrimination claims to Title I. A public employee may not bring a Title II claim against his or
her employer, at least when the defendant employer employs fifteen or more employees.”).3
Public employees, however, may not avail themselves of the remedy provided by Title I,
as the Eleventh Amendment bars suits in federal court against a state (or its agencies) unless
Congress validly abrogated states’ immunity or the state expressly consents to being sued. Bd. of
Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001). In Garrett, the Supreme Court
held that the ADA does not validly abrogate states’ Eleventh Amendment immunity from private
lawsuits, at least with respect to suits for damages under Title I. Id. The Court found that
Eleventh Amendment immunity does not protect states against conduct that is enforceable under
the Fourteenth Amendment, see id. at 364 (recognizing that “the Eleventh Amendment, and the
principle of state sovereignty which it embodies, are necessarily limited by the enforcement
provisions of § 5 the Fourteenth Amendment”).
The Supreme Court, however, ultimately concluded that the ADA does not constitute a
valid enforcement action under Section 5 of the Fourteenth Amendment. Id. at 368-374 (“States
are not required by the Fourteenth Amendment to make special accommodations for the
disabled.... [T]o uphold the Act’s application to the States would allow Congress to rewrite the
Fourteenth Amendment law laid down by this Court....”). Thus, Eleventh Amendment immunity
protects states from being subject to suit under the ADA. Id.
In light of the Supreme Court’s ruling in Garrett, courts within this Circuit regularly
dismiss ADA claims for lack of subject matter jurisdiction when those claims are brought against
states and their agencies by public employees. See Fleming v. State Univ. of New York, 502 F.

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Title II of the ADA prohibits a state or local government or “any public entity that provides public transportation,
to discriminate against a qualified individual with a disability in the provision of public services....” BARBARA
LINDEMANN. ET AL., 1 EMPLOYMENT DISCRIMINATION LAW 13–9 (5 ed. 2012); 42 U.S.C. §§ 12131–12165 (2006).

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Supp. 2d 324, 334 (E.D.N.Y. 2007) (“[T]he Court notes that to the extent that plaintiff had styled
his lawsuit as sounding in Title II in an effort to circumvent Garrett’s holding that Title I’s
prohibition on disability-based employment discrimination does not apply to state employers, the
Court may not permit him to do so.”); Reddick v. Southern Conn. State Univ., No. 3:10-cv-1118
(JBA), 2011 WL 1833288 at *2 (D. Conn. May 12, 2011) (“Unlike claims brought under Title I,
claims for money damages under Title II of the ADA are not barred by the Eleventh
Amendment.”).
Because the Eleventh Amendment bars claims brought under Title I of the ADA, the
Court lacks subject matter jurisdiction over these disability claims and all claims for monetary
relief under the ADA are appropriately dismissed.4
B. CFEPA
Mr. Collazo’s Complaint alleges without specificity that DSS’s actions violated the
Connecticut Fair Employment Practices Act (“CFEPA”). Compl., ECF No. 1. DSS argues that
any claims Mr. Collazo is attempting to bring under §§ 46a-60(a)(1) or 46a-58(a), which govern
causes of action under CFEPA, are barred by the Eleventh Amendment because the State did not
make any clear declaration of its intention to submit to federal jurisdiction. The Court agrees.

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The Court notes that, while claims for monetary relief may be barred by the doctrine of sovereign immunity, the
Court’s decision in Garrett does not leave persons with disabilities without recourse against disability
discrimination. Unlike suits for monetary damages, the Eleventh Amendment does not bar Title I ADA suits against
states for prospective injunctive relief. See Garrett, 531 U.S. at 374 n. 9 (noting that the ADA “can be enforced ... by
private individuals in actions for injunctive relief under [the doctrine of] Ex parte Young”); Henrietta D. v.
Bloomberg, 331 F.3d. 261, 288 (2d Cir. 2003) (“[T]he Ex parte Young exception to the Eleventh Amendment bar to
suit is viable under the ADA.”); Marino v. City University of New York, 18 F. Supp. 3d 320, 333 (noting that, in
order to determine whether the Ex parte Young doctrine circumvents an Eleventh Amendment bar to suit, “a court
need only conduct a straightforward inquiry into whether the complaint [1] alleges an ongoing violation of federal
law and [2] seeks relief properly characterized as prospective.”) (quoting Verizon Maryland, Inc. v. Pub. Serv.
Comm’n of Maryland, 535 U.S. 635, 645 (2002)) (internal quotations omitted). Mr. Collazo’s Complaint, however,
does not request prospective injunctive relief under the ADA.

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It is settled in this District that claims against a state or its agencies under CFEPA may
not be brought in federal court because the State of Connecticut has not expressly waived its
Eleventh Amendment immunity to such suits. See Pawlow v. Dep't of Emergency Servs. & Pub.
Prot., 172 F. Supp. 3d 568, 577–78 (D. Conn. 2016) (aggregating cases); see also Moore v.
Department of Correction, No. 3:13-CV-01160 (JAM), 2017 WL 2413690, at *8 (D. Conn. June
2, 2017) (“[This court] will grant defendant's motion for summary judgment on plaintiff's
CFEPA claim . . . because the Eleventh Amendment plainly bars relief against the DOC as an
entity of the State of Connecticut and because neither the State nor Congress has waived
Eleventh Amendment immunity against CFEPA claims in federal court.”) (citation omitted).
Rather, the State of Connecticut has waived its immunity only with regard to CFEPA claims
brought in Connecticut’s state court and that waiver does not extend to federal courts. See e.g.
Brown v. Conn. Dept. of Children and Families, No. 3:08-cv-1478 (MRK), 2010 WL 2220580 at
*14–15 (D. Conn. May 27, 2010) (aggregating cases); Lyon v. Jones, 168 F. Supp. 2d 1, 6 (D.
Conn. 2001) (Hall J.) (“The state has clearly waived immunity to claims brought under CFEPA
as to cases brought in the Connecticut state courts... However, this court has found that there is
nothing in the Connecticut General Statutes that constitutes an express waiver of Eleventh
Amendment immunity for CFEPA claims.”); Walker v. Connecticut, 106 F. Supp. 2d 364, 369
(D. Conn. 2000) (Burns, J.) (“The only way Plaintiff may bring a CFEPA claim in federal court
against the State is by the consent of the State to be sued in that forum. The State has waived its
immunity, but only as to cases brought in the Superior Court.”).5

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The statutory language of CFEPA unambiguously states that discrimination complaints against state agencies may
be brought in Connecticut’s state courts. See Conn. Gen. Stat. § 46a-100 (“Any person who has filed a complaint
with the commission . . . may bring an action in the superior court for the judicial district in which the
discriminatory practice is alleged to have occurred, the judicial district in which the respondent transacts business or
the judicial district in which the complainant resides . . . .”). CFEPA §§ 46a-99 and 46a-100, however, do not

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Because the Court lacks subject matter jurisdiction over Mr. Collazo’s CFEPA claims,
DSS’s motion is granted with respect to those claims and Mr. Collazo’s state law claims are
dismissed under Rule 12(b)(1).
C. Title VII
Mr. Collazo has raised two separate claims under Title VII: a claim of hostile work
environment and a retaliation claim. Compl., ECF No. 1. DSS seeks dismissal of all Title VII
claims, arguing that the Complaint fails to state a claim, as required under Rule 12(b)(6). Def.
Mem. in Supp. at 10-15, ECF No. 18. The Court disagrees, and both Title VII claims will be
permitted to proceed at this stage of the case.
1. Hostile Work Environment
DSS argues that the facts alleged in the Complaint do not satisfy the basic elements of a
hostile work environment claim. The Court disagrees.
In order to state an actionable hostile work environment claim, a plaintiff must allege that
he or she was subjected to harassment that was severe or pervasive enough “to alter the
conditions of the victim’s employment and create an abusive working environment, and ... that a
specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello,
294 F.3d 365, 373 (2d Cir. 2002) (internal quotation marks and citations omitted). The plaintiff
must demonstrate that the workplace atmosphere was “permeated with ‘discriminatory
intimidation, ridicule, and insult’ ... that is ‘sufficiently severe or pervasive to alter the conditions

explicitly authorize actions in any federal forum and, consistent with the established principle that a state’s waiver of
immunity in its own courts does not automatically indicate consent to federal jurisdiction, courts have interpreted
this silence as restrictive. See Walker, 106 F. Supp. 2d at 369 (“A state does not consent to suit in federal court by
consenting to suit in the courts of its own creation.”) (quoting Smith v. Reeves, 178 U.S. 436, 441–445 (1900));
Beers v. State, 61 U.S. 527, 529, (1857) (“[T]he sovereign cannot be sued in its own courts, or in any other, without
its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a
defendant in a suit by individuals, or by another State. And as this permission is altogether voluntary on the part of
the sovereignty, it follows that it . . . may withdraw its consent whenever it may suppose that justice to the public
requires it.”).

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of the victim's employment and create an abusive working environment....’” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986)).
“Courts look at all circumstances to ascertain whether an environment is sufficiently
hostile or abusive to support a claim.” Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 188
(2d Cir. 2001). These circumstances include factors such as the frequency of the discriminatory
conduct; the severity of the discriminatory conduct; whether the conduct is physically
threatening or humiliating (as opposed to merely offensive); and whether it unreasonably
interferes with an employee’s work performance. Harris, 510 U.S. at 23. These factors are to be
evaluated holistically, and no single one is required. Id.
Furthermore, the test for sufficiency of a hostile work environment claim has both
subjective and objective prongs: the plaintiff must subjectively perceive the environment to be
abusive, and the discriminatory conduct must be “severe or pervasive enough to create an
objectively hostile or abusive work environment.... An environment that a reasonable person
would [not] find hostile or abusive ... is beyond Title VII’s purview.” Id. at 21.
Here, DSS focuses its arguments exclusively on one incident in March of 2014 during
which Mr. Collazo’s supervisor, Mr. Szreders, allegedly called him a racial slur, arguing that this
event is insufficient to state a claim of hostile work environment. Def. Mem. in Supp. at 13,
ECF No. 18-1 (“Here, the one-time incident about which Plaintiff complains is insufficient, as a
matter of law to meet the threshold of severity of pervasiveness required for a hostile work
environment claim.”).
If Mr. Collazo’s only allegation had been that his supervisor called him a racial slur on a
single occasion, DSS may have some valid basis to seek dismissal of Mr. Collazo’s claims at this

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stage. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“[M]ere utterance of an . . .
epithet which engenders offensive feelings in an employee does not sufficiently affect the
conditions of employment to implicate Title VII.”) (internal quotations and marks omitted);
Dorrilus v. St. Rose’s Home, 234 F. Supp. 2d 326, 335 (S.D.N.Y. 2002) (finding that
supervisor’s isolated uses of derogatory slurs to refer to a defendant does not alter conditions of
employment enough to implicate Title VII); Stembridge v. City of New York, 88 F. Supp. 2d 276
(S.D.N.Y. 2000) (finding that “seven instances [of offensive comments] over three years does
not create a work environment permeated with racial hostility”).6
Mr. Collazo’s racially charged interaction with his supervisor in March of 2014,
however, is not Mr. Collazo’s only allegation regarding the hostility and abusiveness of his work
environment. As the Supreme Court noted in Harris, “whether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at all the circumstances.” Harris, 510 U.S. at 23.
In addition to alleging that his supervisor used a racial slur in a threatening manner on a single
occasion, Mr. Collazo also alleges that, in the aftermath of his decision to report the incident to
the Affirmative Action Department, this same supervisor and other personnel of DSS engaged in
a continuous campaign of discriminatory harassment through specific actions, including the
following: denying his request for a transfer; giving him a written warning in April, 2014;
docking his pay on May 22, 2014; denying his requests for vacation days and micromanaging his
daily activities; and violating explicit orders from his doctor restricting him to light duty with no

Notably, while DSS’s filings contain numerous citations to cases in which courts dismissed Title VII hostile work
environment claims at the summary judgment stage, under Rule 56, DSS has not identified any comparable case law
in which courts dismissed similar hostile work environment claims at the motion to dismiss stage, under Rule
12(b)(6). The only case cited by DSS in which the court dismissed hostile work environment claims at the motion to
dismiss stage is Marcus v. Barilla Am. NY, Inc., 14 F. Supp. 3d 108 (W.D.N.Y. 2014). This case, however, is
inapposite. The plaintiff’s hostile work environment claims in Marcus focus on several incidents of “yelling,” and
the court found that the plaintiff failed to make any factual allegations suggesting that such yelling was based on a
discriminatory motive. Thus, the court in Marcus ultimately granted the motion to dismiss not because of the lack
of severity of the defendant’s conduct, but rather because of the lack of causation, which is not at issue here.
6

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bending or lifting, leading to the exacerbation of a previous injury. Compl., ECF No. 1. When
considering whether Mr. Collazo has stated a hostile work environment claim at this early stage
of the litigation, the Court must take all of these circumstances into account. Harris, 510 U.S. at
23.
It is evident from Mr. Collazo’s Complaint that he subjectively perceived his work
environment as transformed following the incident on March 14, 2014. The Complaint states
Mr. Collazo’s belief that, subsequent to the incident and his meeting with the Affirmative Action
Department, he became the victim of harassment perpetrated by his supervisor and other DSS
personnel. Compl. at 3, ECF No. 1; CHRO Compl. at 7-8, Compl. Ex. B, ECF 1-2. He further
alleges that this harassment had a significant and detrimental impact on his mental and physical
well-being. See Compl. at 3, ECF No. 1 (noting that the alleged harassment “has caused me
severe depression and further physical limitations”).
Drawing all inferences in favor of Mr. Collazo, as is required at this stage, these
perceptions could be considered objectively reasonable. See Harris, 510 U.S. at 23 (factors for
determining whether a work environment is objectively hostile or abusive include (1) the
frequency and severity of the discriminatory conduct, (2) whether it is threatening or humiliating
or merely offensive, and (3) whether it unreasonably interferes with the employee’s work
performance.). Mr. Collazo has alleged that his superiors at DSS engaged in racially-motivated
misconduct by willfully disregarding the “light duty” restrictions ordered by his doctor following
his meeting with the Affirmative Action Department, conduct that allegedly ultimately led to the
exacerbation of his previous back injury and the substantial debilitation of his physical and
mental condition. Compl. at 3, ECF No. 1. Construing all allegations in the light most favorable

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to Mr. Collazo, he has plausibly alleged that his superiors at DSS interfered with his work
performance in a manner that was humiliating, severe, and injurious.
Taken together, these allegations are sufficient to state a hostile work environment claim
under Title VII. Accordingly, at this early stage of the case, DSS’s motion is denied with respect
to this claim.
2. Retaliation
Finally, DSS seeks dismissal under Rule 12(b)(6) of any claims that DSS retaliated
against Mr. Collazo in violation of Title VII, arguing that Mr. Collazo has not alleged sufficient
adverse employment action on the part of DSS to state a prima facie retaliation case. Def. Mem.
in Supp. at 13-15, ECF No. 18-1; Def. Reply. Br. at 5, ECF No. 25 (arguing that that Mr.
Collazo’s allegations of adverse employment actions lack sufficient substance or specificity “to
rise above the [threshold] level of petty slights and annoyances”). The Court disagrees.
Title VII “prohibits employers from retaliating against any employee because that
individual has opposed any practice made unlawful by Title VII.” Ya-Chen Chen v. City Univ. of
N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (citing 42 U.S.C. § 2000e–3(a)) (internal quotations
omitted). To establish a prima facie case of retaliation under Title VII, the plaintiff bears the
initial burden to submit “evidence that []he ‘participated in a protected activity,’ ‘suffered an
adverse employment action,’ and ‘that there was a causal connection between [his] engaging in
the protected activity and the adverse employment action.’” Id. (quoting Gorzynski v. Jet Blue
Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)). The parties do not dispute that Mr. Collazo
engaged in protected activity when he filed an internal complaint with the Affirmative Action
Department; rather, DSS argues that Mr. Collazo has failed to state a claim with respect to the
second element, adverse employment action.

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An adverse employment action is any action that causes the Plaintiff to “endure[] a
materially adverse change in the terms and conditions of employment . . . [and a] materially
adverse change is one that has an attendant negative result, a deprivation of a position or an
opportunity.” Gutierrez v. City of N.Y., 756 F. Supp. 2d at 506 (citations and internal quotation
marks omitted). Termination of employment or discharge from employment are therefore
inherently adverse employment actions. Id.
Termination, however, is not the only adverse employment action recognized in Title VII
claims. Courts in this Circuit have also recognized the creation of a hostile work environment as
an adverse employment action. Villar v. City of N.Y., 135 F. Supp. 3d 105, 137 (S.D.N.Y. 2015)
(evaluating argument that plaintiff was subjected to a “retaliatory hostile work environment” at
summary judgment stage); Sclafani v. PC Richard & Son, 668 F. Supp. 2d 423, 439 (E.D.N.Y.
2009) (recognizing that “unchecked retaliatory co-worker harassment, if sufficiently severe, may
constitute adverse employment action so as to satisfy [that prong] of the retaliation prima facie
case”) (internal marks and quotations omitted). “To establish that a retaliatory hostile work
environment constitutes a materially adverse change that might dissuade a reasonable worker
from reporting activity prohibited by Title VII, a plaintiff must satisfy the same standard that
governs hostile workplace claims....” Id. at 438 (citation and internal quotation marks omitted).
DSS argues that Mr. Collazo’s allegations of harassment were not severe, frequent, or
objectively physically threatening, and therefore do not meet the threshold requirement for a
retaliatory hostile work environment action. Def. Mem. in Supp. at 14, ECF No. 18-1.
According to DSS, Mr. Collazo’s allegations regarding the issuance of a written warning,
docking pay, denying requests for vacation days and micromanaging do not rise above the level
of “[p]etty slights or minor annoyances that often take place at work and that all employees

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experience [and thus] do not constitute actionable retaliation.” Hicks v. Baines, 593 F. 3d 159,
165 (2d Cir. 2010) (internal quotations and marks omitted). DSS, however, ignores Mr.
Collazo’s allegation that his supervisor purposefully violated his work restrictions forbidding
bending or lifting. Compl. at 3, ECF No. 1. According to Mr. Collazo, this alleged misconduct
on the part of his supervisor was intentional, humiliating, and mentally and physically injurious.
Id.
Mr. Collazo has also alleged that DSS retaliated against him by denying his request for a
transfer to the Purchasing Department. Id. The Complaint suggests that Mr. Collazo’s transfer
request was motivated by the desire to escape the retaliatory abuses of his supervisor as well as
to assume less physically demanding job duties, as he was suffering from a back injury. Id.;
CHRO Compl. at 5, Compl. Ex. B, ECF 1-2. “[C]ourts in this Circuit have generally declined to
find that transfers (or denials of transfers) amount to adverse employment actions ... where the
action results merely in an inconvenience....” Krachenfels v. N. Shore Long Island Jewish
Health Sys., No. 13-CV-243 (JFB) (WDW), 2014 WL 3867560 at *17 (E.D.N.Y. July 29, 2014)
(citation and internal quotation marks omitted). Nevertheless, Mr. Collazo’s allegations indicate
that the denial of his transfer request exposed him to ongoing harassment and physical tasks he
was unable to safely perform, thereby resulting in physical and mental injuries serious enough to
render him incapable of performing his job, suggesting more than mere inconvenience here.
Taking all of Mr. Collazo’s factual allegations as true and drawing all inferences in the
light most favorable to Mr. Collazo, the Complaint contains sufficient allegations to state a claim
for retaliation under Title VII. Accordingly, DSS’s motion to dismiss is denied as to this claim.

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IV.

CONCLUSION
DSS’s [18] Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The

motion is GRANTED as to Mr. Collazo’s disability claims under the ADA, and the motion is
DENIED as to Mr. Collazo’s hostile work environment and retaliation claims under Title VII.

SO ORDERED at Bridgeport, Connecticut this 20th day of September, 2017.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT COURT

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