Keaton v. Rehabilitation Services et al
ORDER. For the reasons discussed in the attached, the 54 motion to dismiss is GRANTED in part and DENIED in part. The case will proceed with respect to Keaton's failure-to-promote and retaliation claims (Counts One and Two). Counts Three and F our, as well as Keaton's claim for punitive damages, are DISMISSED.Defendant argues that the Court should not consider Keaton's Second Amended Complaint at all, as it was filed one day after the court-ordered deadline, and as the Co urt had previously warned Keaton that the Court would not allow further amendments in the event she continued to miss court-ordered deadlines. (ECF No. 54-1 at 5-6, 9-12.) Keaton's Second Amended Complaint was in fact untimely filed, and there was no ambiguity in the Court's order requiring Keaton to file any second amended complaint within fourteen days of May 16, 2017, i.e., no later than May 30, 2017. (ECF No. 49.) The Court appreciates that defense counsel has had to draft and fil e several iterations of a motion to dismiss because of Keaton's failure to comply with court-ordered deadlines regarding amendments to the complaint, and that this case has been substantially delayed as a result. Nonetheless, the Court finds tha t striking the Second Amended Complaint would have no practical effect because the Court has dismissed Count Four, the claim that Keaton untimely added (ECF No. 29 at 3-5). This does not mean, however, that there should be no sanction for Pla intiff's repeated failures -- even after multiple warnings -- to follow court orders, as set forth on pages 3 to 6 and 9 to 12 of Defendant's brief. (ECF No. 54-1.) Because the Court is loath to punish the Plaintiff for the apparent repeate d errors of her lawyer, however, the Court finds that it should consider imposing some sanction against Plaintiff's counsel. Therefore, within fourteen days of this order, Defendant shall file a statement estimating the extra time defense counsel was required to spend responding to the Second Amended Complaint and shall indicate the hourly rate the State assigns to her time for purposes of fee applications. Within seven days of such filing, Plaintiff's counsel sha ll file a statement showing cause why the Court should not require him to pay the State the expenses set forth in defense counsel's statement, or at least a reasonable portion thereof. Failure by Plaintiff's counsel to respond timely to the Defendant's filing in response to this order will result in the Court's imposing a monetary sanction of $250.00 on Plaintiff's counsel in addition to any fee award. As discovery was stayed pending the Court's ruling on the motion to dismiss, within fourteen days of this order, the parties shall also confer and file a proposed revised schedule for this case in accordance with Local Rule 26(f). Signed by Judge Michael P. Shea on 3/9/2018. (Taykhman, N.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:16-CV-1810 (MPS)
STATE OF CONNECTICUT DEPARTMENT OF
RULING ON THE DEFENDANT’S MOTION TO DISMISS THE SECOND AMENDED
Plaintiff Antoinette H. Keaton filed this action against Defendant, the State of Connecticut
Department of Rehabilitation Services (“DORS”), after she was denied a promotion to the position
of Senior Vocational Rehabilitation Counselor. Invoking Fed. R. Civ. P. 12(b)(1) and 12(b)(6),
Defendant moves to dismiss the Second Amended Complaint, which sets forth claims for
discriminatory failure to promote, retaliation, and hostile work environment under Title VII of the
Civil Rights Act of 1964 (“Title VII”) (Counts One through Three); and deprivation of Keaton’s
rights under 42 U.S.C. § 1981 (Count Four). (ECF No. 50.) Keaton seeks compensatory and
punitive damages, and an order placing Keaton in the position of Senior Vocational Rehabilitation
Counselor, among other relief.
For the reasons discussed below, I DENY the motion to dismiss as to Keaton’s failure-topromote and retaliation claims (Counts One and Two). I GRANT the motion to dismiss as to
Keaton’s hostile work environment and Section 1981 claims (Counts Three and Four), and as to
Keaton’s claim for punitive damages.
A. Keaton’s Employment at DORS
Keaton, an African-American woman, has worked for the State of Connecticut for more
than 23 years. (ECF No. 50 ¶ 2.) She began working for DORS, a state agency charged with
maximizing opportunities for people with disabilities to live, learn, and work independently, in
2009, and has worked for that agency for eight years. (Id. ¶¶ 2-3, 9.)
B. DORS Denies Keaton’s Request for a Promotion to the Position of Senior
Vocational Rehabilitation Counselor
In 2011, Keaton applied for and was denied a promotion to the position of Senior
Vocational Rehabilitation Counselor. (Id. ¶ 5.) On January 7, 2013, in a letter to her supervisor,
David Johnson, Keaton again requested that she be considered for a promotion to that position.
(Id.) Keaton met all of the requirements “of the job description and the position posting”: she had
previously worked for two and a half years as a senior vocational rehabilitation counselor with
another Connecticut agency, Disability Determination Services; she had a Master’s degree “from
an accredited college”; she had at least four years of experience as a vocational rehabilitation
counselor, at least one of which was spent with DORS; and she earned excellent evaluations while
serving as a vocational rehabilitation counselor. (Id. ¶ 6.)
Lynn Frith, DORS’s Northern Region District Director, denied Keaton’s request for the
promotion in a memo dated June 24, 2013, but which Keaton received on August 1, 2013. (Id. ¶
C. DORS Promotes Two White Women to the Position of Senior Vocational
DORS promoted to the “Senior Vocational Rehabilitation Counselor position sought by
the Plaintiff” two white women, Allison Kopie and Alicia Kucharczyk, who Keaton alleges were
less qualified for the position than she was. (Id. ¶ 8.) Keaton was as or more senior and had greater
relevant work experience than either Kopie or Kucharczyk. (Id. ¶ 9.)
David Johnson supervised Kopie, Kucharczyk, and Keaton, but recommended only Kopie
and Kucharczyk for the promotion. (Id. ¶ 10.) While Johnson offered to and did assist Kopie for a
year with preparing her cases for review in connection with her candidacy for the promotion,
Johnson never offered assistance to Keaton, leaving her disadvantaged in the promotion process.
(Id. ¶ 13.) Johnson also permitted Kopie to “complete a summary of her caseload review in
connection with her effort to be promoted but denied” Keaton the same opportunity. (Id. ¶ 14.)
Kopie was promoted on August 1, 2013, the same day Keaton received the notice she was not
promoted. (Id. ¶ 16.)
DORS cited four “eligibility determination errors” Keaton made as grounds for the denial
of her request for promotion. (Id. ¶ 17.) Keaton alleges that these errors were subsequently
determined to be the result of a DORS computer system defect “and were approved by” her
supervisor, Johnson. She also alleges that other employees “routinely” committed these errors. (Id.
¶ 17.) Keaton alleges that while white employees made errors, those employees’ errors did not
prevent them from being promoted. (Id. ¶ 18.) For example, Kopie erroneously authorized the
purchase of a prosthesis for an individual before that individual was determined to be eligible for
DORS’s services. (Id. ¶ 19.) Johnson erroneously closed multiple cases prematurely. (Id. ¶ 20.)
Keaton alleges that these errors were more serious than her own, but did not prevent Kopie or
Johnson from being promoted. (Id. ¶¶ 19-20.)
D. Minority Employees and Clients Experience Negative Treatment at DORS
Keaton alleges that Johnson has never recommended any black person for a promotion to
the position of Senior Vocational Rehabilitation Counselor. (Id. ¶ 10.) Keaton “and many of her
co-workers feel that David Johnson possesses a negative animus toward African Americans and
Latinos.” (Id. ¶ 11.) In support of this allegation, Keaton alleges that she and her co-worker
Latarsha Johnson heard David Johnson refer to a black male DORS client as “scum.” (Id. ¶ 11.)
Keaton also alleges that David Johnson, in the course of his work for DORS, “routinely attempted
to deny eligibility to African American consumers for even the most minimal services, such as
short term transportation, clothing and other resources to assist such consumers in obtaining
employment.” (Id. ¶ 12.)
Furthermore, a survey of DORS employees conducted at an annual meeting, which Keaton
participated in, revealed that DORS’s “minority employees believe that [DORS] promotes very
few, if any, minority employees,” and “revealed the perception that [DORS] . . . treat[s] people of
color unfairly.” (Id. ¶¶ 15, 29.) DORS’s most recent promotions were of three white women,
Kucharczyk, Kopie, and Maureen Furey, and a white man, Johnson. (Id. ¶ 16.)
E. Keaton Challenges DORS’s Promotion Decision and Criticizes DORS’s
Treatment of Minority Employees and Clients
After she learned that DORS denied her request to be promoted to the Senior Vocational
Rehabilitation Counselor position, Keaton filed a grievance challenging the decision. (Id. ¶ 26.)
Keaton alleges that “the substance of this grievance was that she was not promoted while a white
female co-worker with less seniority and less experience was promoted.” (Id. ¶ 27.) DORS attaches
to its motion to dismiss a grievance that a union representative filed on behalf of Keaton. The
entire “Statement of Grievance” reads: “Bargaining unit sought promotion. Employer denied the
promotion in violation of the Contract. Employer otherwise violated the Contract.” (ECF No. 543 at 1.) The grievance DORS submits does not mention that Keaton’s white, female co-worker was
promoted while she was not, and includes no allegations that Keaton was not promoted for
discriminatory reasons. Keaton stated in her amended CHRO complaint that she “did not mention
discrimination” in her union grievance “because [she] was unsure of the reason for the denial of
[the] promotion” at the time (ECF No. 54-2 at 6.) Keaton reiterated in her opposition brief that she
did not use “the word ‘discrimination’” in the grievance. (ECF No. 57 at 11)
“[S]ubsequent to not being promoted and prior to November 14, 2013,” Keaton “joined
with other co-workers in openly expressing doubt that people of color within the DORS had a fair
and equal opportunity for advancement within the department.” (Id. ¶ 27.) Keaton “openly
complained” that she, the only black person under Johnson’s supervision, was not promoted, while
three white women were. (Id. ¶ 28.)
Keaton also confronted Johnson “on a number of occasions . . . concerning his disparaging
description of a Black client as well as his habit of attempting to deny services to prospective
clients based on the prospective client’s race rather than the prospective client’s disability and need
for services.” (Id. ¶ 30.)
Keaton alleges that DORS was aware of her comments about DORS’s discriminatory
treatment of her, other employees, and “clients and prospective clients” of color. (Id. ¶ 31.) DORS
was also aware of her grievance, as DORS is typically notified of grievances when they are filed.
(Id. ¶ 32.)
F. Keaton Receives a Negative Performance Evaluation and Experiences Additional
Scrutiny at Work
On November 14, 2013, Johnson approached Keaton with his written performance
evaluation of her and “insisted that she sign it immediately.” (Id. ¶ 33.) In response, Keaton
indicated to Johnson that she wanted the opportunity to read and review the evaluation before
signing it. (Id. ¶ 34.) Johnson “threatened” to report Keaton’s refusal to sign the evaluation to Frith
if she did not sign immediately. (Id. ¶ 35.)
Keaton reviewed the evaluation and discovered that Johnson rated her performance as
“unsatisfactory” and awarded her 20 supervisor discretionary points, despite awarding her 31
supervisor discretionary points and rating her as “excellent” in all five of the categories assessed
in her previous evaluation. (Id. ¶¶ 36-37.) Keaton alleges that she exhibited no change in work
performance, that she had not received any complaints, criticism, or warnings, and had not been
placed on a performance improvement plan or corrective action plan in the year preceding the
November 2013 evaluation. (Id. ¶ 38.) The November 2013 evaluation was Johnson’s first
opportunity to evaluate Keaton’s work after she filed her grievance and openly criticized DORS.
(Id. ¶ 40.)
Also on November 14, 2013, “[a]mong other dates and times,” Keaton reported
“harassment” to Frith, who did nothing. (Id. ¶ 93.)
From July 5, 2014 onward, Keaton was the only employee in her office who did not have
an onsite supervisor. (Id. ¶ 41.) While she was away from her office, Johnson “demanded keys to
her file cabinet on the pretense that he may have to access her files while she was away.” (Id. ¶
44.) From June 25, 2014 to July 7, 2014, Keaton was the only person in her office who could not
access her computer, causing her to be concerned that her year-end statistics would be affected.
(Id. ¶ 42.) Keaton later learned from Information Technology personnel that “someone had done
something to her computer.” (Id. ¶ 43.) Keaton alleges that she was ostracized by management
after she filed her grievance. (Id. ¶ 45.)
G. Administrative Complaints and this Lawsuit
Keaton filed administrative complaints with the Connecticut Commission on Human
Rights and Opportunities (“CHRO”) and the Equal Employment Opportunity Commission
(“EEOC”) and received notice of her right to file a lawsuit from both agencies.1 Keaton filed this
Although Keaton does not attach the right-to-sue letters to the Second Amended Complaint, she
did attach them to the Amended Complaint (ECF No. 29-1 and 29-2). Keaton also states in her
opposition to the motion to dismiss that her original CHRO/EEOC charge and her amended
lawsuit in Connecticut Superior Court, after which DORS removed the case to this Court. (ECF
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court must dismiss an
action when it “lacks the statutory or constitutional power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it exists.” Id. “In resolving a motion to
dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint
. . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon
v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). In deciding a
Rule 12(b)(1) motion, “the court may also rely on evidence outside the complaint.” Cortlandt
Street Recovery Corp. v. Hellas Telecommunications, S.À.R.L., 790 F.3d 411, 417 (2d Cir. 2015).
Under Rule 12(b)(6), the Court must determine whether the plaintiff has alleged “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts all of the complaint’s
factual allegations as true when evaluating a motion to dismiss. Id. at 572. The Court must “draw
all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent
Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). “When a complaint is based solely
CHRO/EEOC charge both have been “incorporated by reference” into the operative complaint.
(ECF No. 57 at 22.) The CHRO complaint, which Defendant attaches to its motion to dismiss,
indicates that it was filed on April 14, 2014 and that Keaton amended her charge on April 22, 2014.
(ECF No. 54-2.)
on wholly conclusory allegations and provides no factual support for such claims, it is appropriate
to grant [a] defendant[’]s motion to dismiss.” Scott v. Town of Monroe, 306 F. Supp. 2d 191, 198
(D. Conn. 2004). “[W]hile a discrimination complaint need not allege facts establishing each
element of a prima facie case of discrimination to survive a motion to dismiss, it must at a
minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from
conceivable to plausible to proceed.” E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d
Cir. 2014) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); Iqbal, 556 U.S. at 680).
In deciding a Rule 12(b)(6) motion, courts may consider documents attached to, integral
to, or incorporated by reference in the complaint. See Fed. R. Civ. P. 10(c); Chambers v. Time
Warner, 282 F.3d 147, 153 (2d Cir. 2002) (“Even where a document is not incorporated by
reference, the court may nevertheless consider it where the complaint relies heavily upon its terms
and effect, which renders the document integral to the complaint.”) (internal quotations omitted).
A. Discrimination in Violation of Section 1981
The Court lacks jurisdiction over Keaton’s claim that DORS discriminated against her in
violation of 42 U.S.C. § 1981. That statute affords “[a]ll persons within the jurisdiction of the
United States . . . the same right in every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens.” 42 U.S.C. § 1981(a).
Keaton appears to concede that her Section 1981 claim against DORS, an arm of the State
of Connecticut, is barred by the Eleventh Amendment. (ECF No. 57 at 4-5.) “Stated as simply as
possible, the Eleventh Amendment means that, as a general rule, state governments may not be
sued in federal court unless they have waived their Eleventh Amendment immunity, or unless
Congress has abrogated the states’ Eleventh Amendment immunity when acting pursuant to its
authority under Section 5 of the Fourteenth Amendment.” Gollomp v. Spitzer, 568 F.3d 355, 366
(2d Cir. 2009).
Courts in the Second Circuit have held that the Eleventh Amendment precludes Section
1981 claims against a State agency. See Wang v. Office of Prof’l. Med. Conduct, N.Y., 354 F.
App’x 459, 460 (2d Cir. 2009); Allah v. City of New York, No. 15-CV-6842 (CBA)(LB), 2016 WL
676394, at *3 (E.D.N.Y. Feb. 17, 2016) (“Congress has not abrogated sovereign immunity from
claims brought under 42 U.S.C. § . . . 1981. . . ). Further, “the State of Connecticut has not waived
its sovereign immunity” under Section 1981. Coger v. Connecticut, 309 F. Supp. 2d 274, 281 (D.
Conn. 2004). This immunity extends to Keaton’s claim for a prospective injunction. See, e.g.,
Rodriguez v. Fed. Bureau of Investigation, No. 16-CV-6655 (ENV) (LB), 2017 WL 3917156, at
*2 (E.D.N.Y. Sept. 6, 2017) (“[A]ny possible claim for a prospective injunction would need to be
dismissed due to [plaintiff’s] failure to follow the requirement, established in Ex Parte Young, . . .
that a plaintiff seeking prospective relief from the state must name as defendant a state official
rather than the state or a state agency directly.”) (internal quotation marks omitted); Coger, 309 F.
Supp. 2d at 281 (“This Eleventh Amendment bar exists whether the relief sought is legal or
Because the Eleventh Amendment precludes a Section 1981 suit against DORS, the Court
does not have jurisdiction over Keaton’s Section 1981 claim. I grant DORS’s motion to dismiss
Keaton’s Section 1981 claim (Count Four) under Rule 12(b)(1).
B. Failure to Promote in Violation of Title VII
Defendant argues that Keaton fails to allege facts to support a plausible failure-to-promote
claim under Title VII. I disagree.
To state a claim for discriminatory failure to promote under Title VII, a plaintiff must
plausibly allege that “(1) she is a member of a protected class; (2) she applied and was qualified
for a job for which the employer was seeking applicants; (3) she was rejected for the position; and
(4) the position remained open and the employer continued to seek applicants having the plaintiff’s
qualifications.” Petrosino v. Bell Atlantic, 385 F.3d 210, 226 (2d Cir. 2004) (internal quotation
marks omitted). “In all cases . . . there must be proof that the plaintiff was rejected under
circumstances which give rise to an inference of unlawful discrimination.” Aulicino v. New York
City Dep’t. of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009) (internal quotation marks omitted).
To survive a motion to dismiss, “the facts pled need only give ‘plausible support to a minimal
inference of discriminatory motivation.’” Sellers v. First Student, Inc., No. 16-CV-236 (JCH),
2016 WL 6440111, at *4 (D. Conn. Oct. 28, 2016) (quoting Littlejohn v. City of N.Y., 795 F.3d
297, 311 (2d Cir. 2015)).
The second element, that the plaintiff applied and was qualified for a job for which the
employer was seeking applicants, “cannot be established merely with evidence that a plaintiff
generally requested promotion consideration. A specific application is required to ensure that, at
the very least, the plaintiff employee alleges a particular adverse employment action, an instance
of alleged discrimination, by the employer.” Petrosino, 385 F.3d at 227 (internal quotation marks
and alterations omitted) (rejecting plaintiff-appellant’s argument that she adequately applied for a
management position “by telling her managers that she wanted to be a manager”).
Defendant does not dispute that Keaton, an African-American woman, is a member of a
protected class for the purpose of her Title VII claim. As to the remaining elements, Keaton alleges
that she “requested consideration for a promotion to the position of Senior Vocational
Rehabilitation Counselor” with DORS by sending “a letter to her supervisor, Mr. David Johnson.”
(ECF No. 50 ¶ 5.) She also alleges that the position was “post[ed]” (Id. ¶ 6) and that Kopie, a white
woman, was promoted to the position on the same day Keaton received the letter from Frith—
dated over a month earlier—notifying her that she did not receive the position. (Id. ¶ 16.) Drawing
all inferences in her favor, I find that Keaton sufficiently pleads that she applied to a vacant position
for which DORS was seeking applicants and that DORS filled the vacant position with a person
outside of her protected class.
Keaton also sufficiently alleges that the denial of her promotion occurred under
circumstances giving rise to an inference of race discrimination. “One way of raising an inference
of discrimination is through a showing of disparate treatment—that is, a showing that an employer
treated plaintiff less favorably than a similarly situated employee outside her protected group.”
Stinnett v. Delta Air Lines, Inc., ---F. Supp. 3d ---, 2017 WL 4443520, at *7 (E.D.N.Y. Sept. 30,
2017) (quoting Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010) (internal quotation
marks omitted). A plaintiff may also “creat[e] a ‘mosaic’ of intentional discrimination by
identifying bits and pieces of evidence that together give rise to an inference of discrimination.”
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).
Keaton alleges that Kopie, a white woman with less experience and less than or the same
level of seniority as her, was promoted to the position of Senior Vocational Rehabilitation
Counselor. (ECF No. 50 ¶¶ 8-9.) She also alleges that Johnson never recommended any black
person for promotion to that position, and that DORS’s last four promotions were of white
employees, despite the fact that two of those employees, Johnson and Kopie, made errors at work,
and despite the fact that DORS attributed Keaton’s failure to be promoted to errors she made at
work. (Id. ¶¶ 10, 17-18.) These allegations “give plausible support to a minimal inference of
discriminatory motivation,” Vega, 801 F.3d at 84, that is, that Keaton was treated less favorably
than her similarly situated white co-workers because of her race. I therefore DENY DORS’s
motion to dismiss Keaton’s failure-to-promote claim (Count One).
C. Retaliation in Violation of Title VII
Defendant also moves to dismiss Keaton’s claim that Defendant retaliated against her for
criticizing DORS’s treatment of people of color. To state a claim for retaliation under Title VII,2
a plaintiff must plausibly allege that “(1) defendants discriminated—or took an adverse
employment action—against [her], (2) ‘because’ [she] has opposed any unlawful employment
practice.” Id. at 90. “Title VII retaliation claims must be proved according to traditional principles
of but-for causation . . . .” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
1. Protected Activity
Under Title VII, protected activity includes both “opposing discrimination proscribed by
the statute and . . . participating in Title VII proceedings.” Jute v. Hamilton Sundstrand Corp., 420
F.3d 166, 173 (2d Cir. 2005).
The opposition clause of Title VII “makes it unlawful for an employer to retaliate against
an individual because [he] ‘opposed any practice’ made unlawful by Title VII . . . .” Littlejohn,
795 F.3d at 316 (quoting 42 U.S.C. § 2000e-3(a)). The Supreme Court clarified in Crawford v.
Metropolitan Government of Nashville & Davidson County “that any activity designed ‘to resist
or antagonize . . . ; to contend against; to confront; resist; [or] withstand’ discrimination prohibited
by Title VII constitutes a protected oppositional activity.” Littlejohn, 795 F.3d at 317 (quoting
Crawford, 555 U.S. 271, 276 (2009)). “[I]f an employee . . . actively ‘support[s]’ other employees
The anti-retaliation provision of Title VII states, in relevant part: “It shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . . because
[the employee] 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).
in asserting their Title VII rights or personally ‘complain[s]’ or is ‘critical’ about the
‘discriminatory employment practices’ of her employer, that employee has engaged in a protected
activity under § 704(a)’s opposition clause.” Id. at 318 (quoting Sumner v. United States Postal
Serv., 899 F.2d 203, 209 (2d Cir. 1990)). The participation clause “makes it unlawful to retaliate
against an individual because she made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under Title VII.” Id. at 316.
Keaton does not allege, and does not argue, that she participated in an investigation,
proceeding, or hearing under Title VII that could be protected activity under the participation
clause. At issue is whether she engaged in protected activity under the opposition clause.
I find that Keaton has plausibly alleged that she engaged in protected activity by criticizing
DORS’s promotion practices with respect to minority employees and “openly complain[ing]” that
Johnson had promoted three white women instead of her, an African-American woman. (ECF No.
50 ¶ 28.) Defendant argues that Keaton “does not allege that she made a formal or informal
complaint to management regarding discrimination, and generally expressing displeasure or doubt
about advancement opportunities is not protected activity under Title VII.” (ECF No. 54-1 at 25.)
Defendant principally relies on Cooper v. N.Y. State Dep’t of Labor, 819 F.3d 678 (2d Cir. 2016),
in which the Second Circuit affirmed the dismissal of a Title VII retaliation claim where the
plaintiff alleged that she engaged in protected activity when she complained about changes in the
department’s complaint handling procedure and said they would “increase the likelihood of future
unredressed Title VII violations.” Cooper, 819 F.3d at 681. The Court held that the plaintiff did
not have a good faith belief that changing the department’s complaint handling procedures would
qualify as an unlawful employment practice under Title VII. Id. at 681.
Unlike the plaintiff in Cooper, however, Keaton does not allege merely that she complained
about potential, future discrimination against minority employees. Rather, construing Keaton’s
allegations in the light most favorable to her, Keaton’s allegations that she “openly express[ed]
doubt that people of color within the DORS had a fair and equal opportunity for advancement”
and “openly complained . . . that while three white females were successful in their efforts to
become promoted, she was not” (ECF No. 50 ¶¶ 27-28), suggest that Keaton protested unlawful
employment activity that had already occurred. This conduct constitutes protected activity under
Title VII. See Littlejohn, 795 F.3d at 317 (“§ 704(a)’s opposition clause protects [formal] as well
[as] informal protests of discriminatory employment practices, including making complaints to
management, writing critical letters to customers, protesting against discrimination by industry or
by society in general, and expressing support of co-workers who have filed formal charges”)
(quoting Sumner, 899 F.2d at 209)). 3
2. Adverse Employment Action
Keaton argues that Defendant subjected her to an adverse employment action when
Johnson gave her a negative performance evaluation despite no change in her performance from
the previous year, “attempted to compel her to sign” the evaluation without giving her an
opportunity to review it, and threatened to report her to Frith for refusing to sign the evaluation.
(ECF No. 50 ¶¶ 33-38.) Keaton also alleges that from July 5, 2014 onward, she was the only
employee in her office without an onsite supervisor (ECF No. 50 ¶ 41), and that from June 25,
2014 to July 7, 2014, she was the only person in her office without access to her computer, and
Because I find that Keaton plausibly alleges that she engaged in protected activity by criticizing
DORS’s promotion practices, I need not consider whether her union grievance, participation in a
DORS survey about treatment of minority employees, confrontation of Johnson regarding his
disparagement of a black client, and filing of an administrative complaint also constitute protected
later learned from IT personnel that “someone had done something to her computer . . . .” (ECF
No. 50 ¶ 43.) She also alleges that Johnson “demanded keys to her file cabinet” while she was
away, causing Keaton to be concerned that “her work would be sabotaged . . . .” (ECF No. 50 ¶
44.) Finally, Keaton alleges that she was “ostracized by management.” (ECF No. 50 ¶ 45.)
Title VII’s anti-retaliation provision covers only an employer’s actions that are “materially
adverse.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59-60 (2006). In the context
of Title VII retaliation claims, “[m]aterially adverse” actions are those that “well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68.
“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 of conditions
of employment.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citing
Burlington, 548 U.S. at 64) (internal quotation marks and alterations omitted). Nonetheless,
“[a]ctions that are ‘trivial harms’—i.e., those petty slights or minor annoyances that often take
place at work and that all employees experience’—are not materially adverse.” Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011). “Material adversity is to be
determined objectively, based on the reactions of a reasonable employee. Context matters, as some
actions may take on more or less significance depending on the context.” Id. (internal citations and
quotation marks omitted).
The Second Circuit held in Vega that the plaintiff-appellant adequately pleaded a Title VII
retaliation claim based on his negative performance review. Vega, 801 F.3d at 92. The Court noted
that, “of course, a poor performance evaluation could very well deter a reasonable worker from
Keaton alleges that after engaging in protected activity, she received a performance
evaluation in which “Johnson had rated her performance as unsatisfactory by awarding her only
20 supervisor discretionary points,” despite awarding her “31 supervisor discretionary points” in
her previous evaluation, and despite there having been no change in her performance from the
previous year. (ECF No. 50 ¶¶ 37-38.) Although she concedes that DORS ultimately corrected the
review, increasing her supervisor discretionary score to 26 points, this was still a substantial drop
from the previous year. (ECF No. 57 at 16.)4 Drawing all reasonable inferences in her favor,
however, I find that Keaton has alleged that receiving an “unsatisfactory” performance evaluation
with an allegedly substantial decrease in her award of “supervisor discretionary points” could
“dissuade a reasonable worker from making or supporting a charge of discrimination,”
Burlington, 548 U.S. at 68, and therefore constitutes an adverse employment action. 5
Finally, Keaton has adequately alleged causation for the purpose of her retaliation claim.
In order to state a claim for retaliation, Keaton must plausibly plead “a connection between the act
and [her] engagement in protected activity.” Vega, 801 F.3d at 90. Keaton must allege that the
Defendant argues that DORS “immediately corrected” Keaton’s performance evaluation by
increasing her award of supervisor discretionary points from 20 to 26, and attaches the apparently
corrected evaluation. (ECF No. 54-1 at 28; ECF No. 54-2 at 9.) Keaton does not dispute this, but
responds that “[i]ncreasing the award of points from 20 to 26 is no remedy, [as] 26 is still an
unfavorable rating.” (ECF No. 57 at 16.) It may be that, once the evidence in this case is developed,
it will be evident that an award of 26 supervisor discretionary points—down from a previous award
of 30 points—does not constitute a materially adverse employment action. But that is not a
judgment the Court can make at the pleadings stage.
I need not consider whether Johnson’s alleged threat to report Keaton to Frith for refusing to sign
her performance evaluation, Johnson’s request for keys to Keaton’s file cabinet while she was
away, and Keaton’s being left without a supervisor in the office, possible tampering with her
computer, and generally being “ostracized by management” were materially adverse employment
retaliation was the “but-for” cause of the adverse action—that “the adverse action would not have
occurred in the absence of the retaliatory motive.” Id. at 90-91 (internal quotation marks omitted).
Keaton alleges that she learned that her request for a promotion was denied on August 1,
2013, and criticized DORS’s promotion practices at some point before November 14, 2013, when
she received a negative performance evaluation. (ECF No. 50 ¶¶ 7, 27.) She also alleges that the
November 2013 evaluation “was Johnson’s first opportunity to assess and evaluate [her]
immediately subsequent to [Keaton’s] grievance and her outspoken criticism of the Defendant’s
practices,” and that she was given an “unfavorable evaluation” despite there having been “no
significant change in her performance from the previous year.” (Id. ¶¶ 38, 40.)
“While the Second Circuit has articulated no ‘bright line’ rule for when an alleged
retaliatory action occurs too far in time from the exercise of a federal right to be considered
causally connected, it is well settled that when ‘mere temporal proximity’ is offered to demonstrate
causation, the protected activity and the adverse action must occur ‘very close’ together.” Henry
v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396, 412 (S.D.N.Y. 2014) (internal quotation marks
and citations omitted). Though Keaton does not specifically allege when she criticized DORS’s
promotion practices, and though a period of up to three and a half months between the alleged
protected activity and adverse action is not “very close,” Keaton’s allegation that her November
2013 performance evaluation was the first opportunity that Johnson had to assess her work after
she openly criticized DORS’s promotion practices (ECF No. 50 ¶ 40) is sufficient to plead a
connection, especially because I must draw all reasonable inferences in her favor at this stage. See
Vega, 801 F.3d at 92 (holding that plaintiff plausibly alleged a temporal proximity between
protected activity and allegedly retaliatory actions, and therefore causation for the purpose of a
Title VII retaliation claim, where plaintiff alleged two-to-three month duration between protected
activity and adverse employment action).
Because Keaton adequately alleges that she suffered a material adverse employment action
as a result of her open criticism of DORS’s promotion practices, I DENY the motion to dismiss
Keaton’s retaliation claim (Count Two).6
D. Hostile Work Environment in Violation of Title VII
Keaton also claims that she faced a hostile work environment while employed at DORS.
“To state a claim for 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 the plaintiff’s [protected characteristic].” Patane v. Clark, 508
F.3d 106, 113 (2d Cir. 2007).
Defendant argues that Keaton failed to administratively exhaust several of her allegations by
failing to include them in her amended administrative charge, which Defendant attaches at ECF
No. 54-2. “[T]he failure to exhaust administrative remedies is a precondition to bringing a Title
VII claim in federal court, rather than a jurisdictional requirement.” Hardaway v. Hartford Pub.
Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018). “[C]laims that were not asserted before the EEOC
may be pursued in a subsequent federal court action if they are ‘reasonably related’ to those that
were filed with the agency.” Shah v. New York State Dep’t of Civil Serv., 168 F.3d 610, 613 (2d
Cir. 1999). Keaton’s amended administrative charge includes claims that she was denied a
promotion for discriminatory reasons, retaliated against for opposing discrimination by receiving
a negative performance evaluation, and subjected to a hostile work environment, including by
being criticized at work. (ECF No. 54-2 at 6-8.) Drawing all reasonable inferences in favor of
Keaton as required at this stage, I conclude that the allegations in the Second Amended Complaint
are reasonably related to the claims included in her amended administrative charge for the purpose
of deciding the motion to dismiss. See Gupta v. City of Bridgeport, No. 3:14CV00112 (MPS),
2015 WL 1275835, at *6-8 (D. Conn. Mar. 19, 2015) (holding that plaintiff’s allegations were
reasonably related to those included in her EEOC charge).
As a general rule, alleged incidents supporting a hostile work environment claim must be
more than “episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal citations and quotation
marks omitted). “Isolated acts, unless very serious, do not meet the threshold of severity or
pervasiveness.” Id. But it is “well-settled in [the Second] Circuit that even a single act can meet
the threshold if, by itself, it can and does work a transformation of the plaintiff’s workplace.” Id.
“[T]he test is whether ‘the harassment is of such quality or quantity that a reasonable employee
would find the conditions of her employer altered for the worse.’” Terry v. Ashcroft, 336 F.3d 128,
148 (2d Cir. 2003) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir.
2000) (emphasis in original)).
Among the factors courts consider when determining whether an environment is
sufficiently hostile are “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.” Terry, 336 F.3d at 148 (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “Whether the challenged conduct is sufficiently severe
or pervasive depends on the totality of the circumstances.” Aulicino, 580 F.3d at 82 (internal
citations and quotation marks omitted).
Keaton’s allegations are insufficient to state a hostile work environment claim under Title
VII. In support of her hostile work environment claim, Keaton reiterates the factual allegations
that supported her failure-to-promote and retaliation claims, and then adds that DORS subjected
her “to harassment in the form of unwelcome verbal or physical conduct” in the following ways:
1) by giving her an unwarranted, lower service rating; 2) by exercising subjective
discretion in a manner extremely adverse to the plaintiff; 3) by not affording the
plaintiff an opportunity for summary case load review prior to acting upon her
request for promotion; 4) by attempting to intimidate the plaintiff into signing a
performance evaluation without the opportunity to review it and otherwise acting
in a manner contrary to her best interests[;] 5) by withdrawing support; 6) by not
providing direct supervision; 7) by subjecting the plaintiff’s work to heightened
scrutiny; 8) by [denying her] promotional opportunities; and 9) [by] undermining,
sabotaging and otherwise discrediting the plaintiff’s work, all thereby contributing
to a hostile work environment, making it more difficult for the plaintiff to
effectively perform the responsibilities of her job.
(ECF No. 50 ¶ 91.) Some of these allegations are simply conclusory in that they are unsupported
by any factual elaboration in the complaint. For example, there are no facts in the complaint
specifying the alleged “subjective discretion” or “heightened scrutiny” or “discrediting” of the
plaintiff’s work. The remaining allegations, even when amplified by the facts set forth in the
complaint, simply do not add up to a hostile work environment claim. Keaton’s assertions that she
was denied a promotion and given a negative performance review allege “discrete discriminatory
acts rather than repeated and pervasive conduct” as required to support a hostile work environment
claim. See, e.g., Guy v. MTA New York City Transit, No. 15-CV-2017 (LDH) (LB), 2016 WL
8711080, at *8 (E.D.N.Y. Sept. 23, 2016) (plaintiff’s allegations that he was demoted, suspended,
and denied a promotion were insufficient to state a hostile work environment claim).
More generally, none of these allegations support a claim that Keaton endured treatment
that was “so severe or pervasive as to have altered the conditions of [Keaton’s] environment.”
Littlejohn, 795 F.3d at 321 (affirming dismissal of hostile work environment claim where employer
made negative statements about the plaintiff, used harsh tones and sarcasm with plaintiff, distanced
herself and declined to meet with plaintiff, wrongfully reprimanded plaintiff, and required plaintiff
to recreate work). See also Fleming v. MaxMara USA, Inc., 371 Fed. Appx. 115, 119 (2d Cir.
2010) (summary order) (affirming dismissal of hostile work environment claim where defendants
excluded plaintiff from meetings, excessively criticized her work, refused to answer her workrelated questions, imposed additional duties on her, threw books at, and sent rude emails to her);
Williams v. N.Y. State Unified Court Sys. Office of Court Admin., 16-CV-2061 (VSB), 2017 WL
4402562, at *7 (S.D.N.Y. Sept. 30, 2017) (dismissing hostile work environment claim where
plaintiff alleged that he was reprimanded, unjustly subjected to poor performance reviews, and
given additional duties above and beyond his regular assignments). I therefore GRANT the motion
to dismiss Keaton’s harassment claim (Count Three).7
E. Punitive Damages
Finally, Keaton concedes that she cannot recover punitive damages against the State of
Connecticut under Title VII. (ECF No. 57 at 5-6.) See, e.g., Ettinger v. State Univ. of New York
State Coll. of Optometry, No. 95 Civ. 9893 (RWS), 1998 WL 91089, at *7 (S.D.N.Y. Mar. 2, 1998)
(dismissing claim for punitive damages against governmental entity under 42 U.S.C. §
1981a(b)(1)). Therefore, Keaton’s claim for punitive damages is dismissed.
F. Potential Sanctions
Defendant argues that the Court should not consider Keaton’s Second Amended Complaint
at all, as it was filed one day after the court-ordered deadline, and as the Court had previously
warned Keaton that the Court would not allow further amendments in the event she continued to
miss court-ordered deadlines. (ECF No. 54-1 at 5-6, 9-12.) Keaton’s Second Amended Complaint
was in fact untimely filed, and there was no ambiguity in the Court’s order requiring Keaton to file
any second amended complaint within fourteen days of May 16, 2017, i.e., no later than May 30,
Keaton does not cite any authority to support a hostile work environment claim based on the facts
she alleges – rather, she requests leave to amend the complaint. (ECF No. 57 at 21.) She does not
explain, however, what allegations she would add if she had the opportunity to amend. She also
does not explain why “justice . . . requires” that the Court grant Keaton leave to file a third amended
complaint, Fed. R. Civ. P. 15(a), given that the Court warned that she would have no further
opportunities to amend her complaint; that, as Defendant points out, she has failed to comply with
court-ordered deadlines no fewer than five times in this case; and that another opportunity to
amend would only create further delay and impose further expense on the Defendant.
2017. (ECF No. 49.) The Court appreciates that defense counsel has had to draft and file several
iterations of a motion to dismiss because of Keaton’s failure to comply with court-ordered
deadlines regarding amendments to the complaint, and that this case has been substantially delayed
as a result. Nonetheless, the Court finds that striking the Second Amended Complaint would have
no practical effect because the Court has dismissed Count Four, the claim that Keaton untimely
added (ECF No. 29 at 3-5).
This does not mean, however, that there should be no sanction for Plaintiff’s repeated
failures—even after multiple warnings—to follow court orders, as set forth on pages 3 to 6 and 9
to 12 of Defendant’s brief. (ECF No. 54-1.) Because the Court is loath to punish the Plaintiff for
the apparent repeated errors of her lawyer, however, the Court finds that it should consider
imposing some sanction against Plaintiff’s counsel.
Therefore, within fourteen days of this order, Defendant shall file a statement estimating
the extra time defense counsel was required to spend responding to the Second Amended
Complaint and shall indicate the hourly rate the State assigns to her time for purposes of fee
applications. Within seven days of such filing, Plaintiff’s counsel shall file a statement showing
cause why the Court should not require him to pay the State the expenses set forth in defense
counsel’s statement, or at least a reasonable portion thereof. Failure by Plaintiff’s counsel to
respond timely to the Defendant’s filing in response to this order will result in the Court’s
imposing a monetary sanction of $250.00 on Plaintiff’s counsel in addition to any fee award.
For the reasons stated above, the motion to dismiss is GRANTED in part and DENIED in
part. The case will proceed with respect to Keaton’s failure-to-promote and retaliation claims
(Counts One and Two). Counts Three and Four, as well as Keaton’s claim for punitive damages,
As discovery was stayed pending the Court’s ruling on the motion to dismiss, within
fourteen days of this order, the parties shall confer and file a proposed revised schedule for this
case in accordance with Local Rule 26(f).
IT IS SO ORDERED.
Michael P. Shea, U.S.D.J.
March 9, 2018
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