Raeburn v. Department of Housing Preservation and Development of The City of New York et al
MEMORANDUM AND ORDER granting 46 Motion to Dismiss or, in the alternative, for Summary Judgment with respect to the Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act claims set forth in Counts I, II and III of the Complaint. The Court declines to exercise supplemental jurisdiction with respect to the state-law claims set forth in Counts IV, V and VI, and those claims are dismissed without prejudice. The Clerk of Court is directed to enter judgment in accordance with this Memorandum and Order and to close this case. Ordered by Judge Sandra L. Townes on 6/22/2015. Copy mailed to Patricia Raeburn. (Barrett, C)
F IL L)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N
* JUN 22OlS *
MEMORANDUM AND ORDER
DEPARTMENT OF HOUSING PRESERVATION
AND DEVELOPMENT OF THE CITY OF NEW
YORK, THE CITY OF NEW YORK, SIMON
BONNANO and RAYMOND PYNN,
TOWNES, United States District Judge:
Plaintiff Patricia Raeburn brings this employment discrimination action against her
employer, the Department of Housing Preservation and Development of the City of New York
("HPD"), the City of New York, and two HPD supervisors, Simon Bonnano and Raymond Pynn,
alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e
et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; and New
York State law. Defendants, all of whom are represented by the Corporation Counsel of the City
of New York, now move to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56. For the
reasons stated below, the Court grants defendants' motions with respect to plaintiff's Title VII
and ADEA claims, declines to exercise supplemental jurisdiction with respect to the three statelaw claims, and dismisses this action without prejudice to pursuing those three claims in state
The following facts are drawn from plaintiff's Verified Complaint (the "Complaint"), the
non-conclusory allegations of which are assumed to be true for purposes of this Memorandum
and Order. Plaintiff is an African-American woman, who was 60 years old at the time she
commenced this action in October 2010. Plaintiff has worked for defendant HPD, an agency of
the City of New York, since 1988. Although plaintiff has worked in various capacities during
her tenure at HPD, she has worked as an Inspector since approximately 2000.
In April 2004, plaintiff applied to work as a lead-paint inspector in HPD's lead paint
section. Plaintiff was offered the position. However, when she called defendant Simon
Bonnano—then the chief of HPD '5 Hooper Street, Brooklyn, office—on or about September 1,
2004, to announce that she was preparing to report for duty, Bonnano advised plaintiff not to take
the position, stating that the job required inspectors to carry ladders. Plaintiff disregarded
Botmano's comments and reported to work at the Hooper Street office nonetheless. She also
reported Bonnano's comments, which she interpreted as implying that a middle-aged woman
would not be able to perform the job of lead-paint inspector, to HPD Chief William Tompson as
Although plaintiff does not allege that Tompson took any action on her complaint,
plaintiff alleges, on information and belief, that Bonnano came to learn of plaintiff's complaint to
Tompson and "decided to create a hostile, discriminatory and retaliatory environment for
Plaintiff when she reported for duty at the Hooper Street office." (Complaint, ¶ 17). Plaintiff
alleges that she "put up with the hostile and discriminatory work environment ... for well over a
year and a] half from the commencement of her new job ...." (Id., ¶ 18). However, plaintiff
does not allege what, if any actions, Bonnano took to create a hostile work environment.
Indeed, the Complaint does not allege any specific hostile or discriminatory acts which
took place in the more than 21-month period between September 1, 2004, and June 8, 2006. On
the latter date, plaintiff and a co-worker, Patrick Roberts, "went to the field" to inspect three
buildings. (Id., ¶ 19). En route to the office after completing these inspections, Roberts spent
approximately an hour in a retail store, leaving plaintiff to wait in the car they shared. Believing
that Roberts had "absconded for an hour of work time" in "violation of HPD policy" (id.),
plaintiff reported Roberts' actions to their supervisor, defendant Raymond Pynn.
Pynn not only failed to take action on plaintiff's complaint, but excoriated plaintiff for
making it. According to plaintiff, Pynn summoned her into the men's changing room, where he
"removed his shoes, banged them on the table and yelled at Plaintiff to leave his 'best man'
alone." (Id., ¶ 20). Plaintiff implies that Pynn's decision to berate her in the men's changing
room, rather than in his office, and his failure to even investigate Robert's alleged misconduct
was "motivated by Pynn's discriminatory and hostile attitude toward Plaintiff as a woman
employee." (Id., ¶ 21).
While plaintiff alleges, upon information and belief, that Roberts was never disciplined,
plaintiff does not allege that Pynn took any further actions against her. According to the
Complaint, the next incident involving plaintiff did not occur until sometime in or after March
2007, following the hiring of a young white male employee, Richard Kogan. Kogan was
assigned to a computer which was shared by plaintiff and other employees.
Shortly after he arrived at the Hooper Street office, Kogan began complaining that
plaintiff powered down the shared computer after using it. Although the computer was also used
by other employees, any one of whom could have powered it down, Bonnano confronted plaintiff
with Kogan' s accusation. Plaintiff denied having powered down the computer, stating that she
only "logged off the computer as policy required." (Id., ¶ 24). Bonnano apparently credited
Kogan and "chose to disbelieve Plaintiff." (Id.).
On or about April 3, 2007, while working in the field, plaintiff received a radio call from
Bonnano. He screamed at her, demanding to know why the computer had been powered down
again. Plaintiff "found this call both offensive and unwarranted not only because ... Bonnano
called her in the course of her field assignment to upbraid her about a matter that could have
awaited her return to the office, but also because he had once again chosen to believe the false
claims of Kogan, Plaintiff's earlier denials notwithstanding." (Id., ¶ 26).
Upon returning to the office, plaintiff found a note on the computer she shared with
Kogan. The note instructed plaintiff not to sign onto that computer, but to use another computer
which was assigned to another African-American employee. Plaintiff does not allege that the
new computer was in any way inferior to the computer she shared with Kogan, but asserts that
the decision to reassign her to a new computer was "retaliation and harassment." (Id., ¶ 28).
On April 7, 2007, Pynn summoned plaintiff to the men's changing room, where he served
her with a disciplinary notice charging her with failure to report an arrest. Two days later,
plaintiff, who had never been arrested, went to the office of HPD's Inspector General and told an
investigator that the charge was spurious. Plaintiff was nonetheless required to appear at a
proceeding to answer the "defamatory charge." (Id., ¶ 32).
At that proceeding on April 11, 2007, plaintiff learned that the charge against her had
been changed to "use of profane language toward co-workers." (Id., ¶ 33). That charge was
based on an e-mail from Roberts dated April 4, 2007, which was allegedly authored by three
other witnesses to the profanity. Plaintiff alleges, however, that Robert was the sole author of the
Plaintiff stated that she wanted to consult an attorney and, at her request, the proceedings
were adjourned. Approximately one week later, Dawn Naidu-Walton of HPD's Inspector
General's Office called plaintiff and offered her a "job transfer." (Id., ¶ 35). According to
plaintiff, Naidu-Walton "acknowledged that Plaintiff was working in a hostile environment."
(Id.). Plaintiff declined the transfer because she believed that "it was incumbent upon HPD to
change such 'hostile environment,' instead of simply transferring Plaintiff ...." (Id.).
The Complaint alleges that, on or about May 9, 2007, plaintiff filed a charge of sex, age
and race discrimination (hereafter, the "Charge") with the U.S. Equal Employment Opportunity
Commission (the "EEOC"). On July 20, 2010, the EEOC issued a "right-to-sue letter." Plaintiff
retained counsel, who commenced this action by filing the Complaint on October 20, 2010.
The Complaint names four defendants: the HPD, the City of New York, Simon Bonnano,
and Raymond Pynn. The Complaint alleges that the Hooper Street office was already "hostile to
and discriminatory against its female employees" when plaintiff began working there because it
had a men's changing room, but no similar facility for plaintiff and the two other female
employees. (Id., ¶ 18). However, the Complaint also alleges that "Bonnano decided to create a
hostile, discriminatory and retaliatory environment for Plaintiff when she reported for duty at the
Hooper Street office" in disregard of his advice not to do so. (Id., ¶ 17).
Although the Complaint alleges that plaintiff "put up with the hostile and discriminatory
work environment in the office without complaint for well over a year and [a] half from the
commencement of her new job in or about September ... 2004," (id, ¶ 18), the pleading alleges
only three discriminatory incidents which occurred after plaintiff began work as a lead-paint
inspector: Pynn's actions in response to her reporting Robert's misconduct in June 2006;
Bonnano's actions in response to Kogan's complaints about the computer in the Spring of 2007;
and the disciplinary charges against plaintiff in April 2007. With respect to the disciplinary
charges, the Complaint alleges that plaintiff was charged with "failure to report an arrest" and
"use of profane language," but does not allege what, if any, any adverse action plaintiff suffered
as a result of these charges. In addition, while the Complaint conclusorily asserts that "HPD's
agents have since continued to harass and retaliate against Plaintiff by causing her to be
summoned before the HPD Disciplinary Unit on all manner of baseless, contrived, vague or
convoluted charges," (id., ¶ 36), the pleading does not allege facts relating to any of these other
The Complaint alleges six "counts," the first three of which allege violations of federal
statutes. The first two causes of action allege that plaintiff was subjected to sex and race
discrimination, respectively, in violation of Title VII. The third cause of action alleges that
"Plaintiff was subjected to discrimination on the basis of age in violation of [the] ADEA." (Id.,
¶J 46). The three other counts allege violations of state statutes. The fourth count alleges a
claim pursuant to the NYCHRL, the fifth count advances a claim for intentional infliction of
emotional distress, and Count VI alleges a common-law claim for negligent supervision.
In November 2012—after lengthy delays occasioned by, among other things, the
withdrawal of plaintiffs counsel—defendants filed a motion to dismiss the Complaint. That
motion raised six points, the first and third of which relied on documents submitted in support of
the motion by defendants' counsel. In the first point, defendants argued that plaintiff's Title VII
and ADEA claims were barred by plaintiffs failure to commence her action within 90 days of
the right-to-sue notice. In support of that argument, defendants introduced evidence that the
EEOC had mailed plaintiff a right-to-sue notice on December 31, 2007, which related to a charge
of discrimination which plaintiff had filed on or about May 9, 2007. Defendants did not contest
the Complaint's allegation that a right-to-sue letter was received on July 20, 2010, but allege that
this was the second of two right-to-sue letters which plaintiff received from the EEOC.
In the third point, defendants argued that the Court lacked subject-matter jurisdiction over
plaintiffs Title VII and ADEA claims because the conduct giving rise to those claims was not
alleged in the Charge. In support of that argument, defendant relied on Charge Number 5202007-03090—a charge of discrimination signed by plaintiff on May 9, 2007, and filed with the
EEOC on July 11, 2007. That charge related solely to the disciplinary proceeding commenced
against plaintiff in April 2007, and made no mention of events which occurred previously.
Although plaintiff was no longer represented at the time she was served with defendants'
motion to dismiss, she filed apro se response dated October 23, 2012, entitled an "Answer to
Motion to Dismiss." That document consisted of a six-page, sworn declaration, to which
plaintiff attached excerpts from the HPD's Rules of Conduct and excerpts from an HPD
handbook entitled, "Supervisor's Duties & Responsibilities." The declaration contained a vague
allegation that unspecified male supervisors had told an unspecified female employee to "suck
my dick," and an argument suggesting that plaintiff made "management" aware of this allegation
in a "complaint." In fact, the charge of discrimination signed by plaintiff on May 9, 2007 (the
"Charge") contained no such allegation.
In a memorandum and order dated September 30, 2013, this Court noted that the first and
third points of defendants' motion relied on matters outside of the four corners of the Complaint.
See Raeburn v. Dep 't of Housing Pres. & Dev., No. 10-CV-4818 (SLT)(MDG), 2013 WL
5521235 (E.D.N.Y. Sept. 30, 2013). Accordingly, the Court converted the motion into a motion
for summary judgment, directed plaintiff to re-serve the notice pursuant to Local Rule 12. 1, and
set a briefing schedule which afforded plaintiff the opportunity to file additional materials
relevant to the motion. The Court advised plaintiff that such additional materials might include
"an affidavit from Plaintiff clarifying whether she filed a second charge of discrimination with
the SDHR and, if so, how that charge differed from the charge filed with the EEOC on May 9,
2007." Id., 2013 WL 5521235, at *4.
In November 2013, plaintiff filed another sworn declaration. Although the document was
entitled, "Answer," it made ten statements under penalties of perjury and in opposition to
defendants' motion to dismiss. It stated, among other things, that plaintiff received "only one 90
day letter," and that she provided her attorney with a copy of this letter as soon as she received it.
Answer sworn Nov. 12, 2013, ¶ 2.
On June 20, 2014, defendants filed a second motion to dismiss. However, after oral
argument on July 30, 2014, that motion was withdrawn and defendants were granted leave to file
a third motion. That motion to dismiss or, in the alternative, for summary judgment was
ultimately filed in December 2014. The Memorandum of Law in Support of that Motion
("Defendants' Memo") raises the same six points as the memorandum of law in support of the
initial motion to dismiss. However, the arguments relating to Points I and III rely on additional
documents contained in the Declaration of Gloria M. Yi dated October 17, 2014 (the "Yi
Declaration"), and differ slightly from the arguments raised in support of the original motion.
The Instant Motion to Dismiss or, in the alternative, for Summary Judgment
As in the initial motion to dismiss, Point I argues that plaintiff's Title VII and ADEA
claims are barred because plaintiff failed to bring suit within 90 days of receiving a right-to-sue
notice. Defendants concede that the EEOC issued two right-to-sue notices in this case—one
dated December 31, 2007, and a second dated July 20, 2010—but argue that these notices related
to identical charges of discrimination, both dated May 9, 2007, and filed on June 11, 2007.
Defendants cite to several cases for the proposition that the 90-day deadline runs from the date
that the first right-to-sue letter was received.
In Point II, defendants argue that Title VII and ADEA claims arising from incidents
which occurred more than 300 days prior to the filing of the Charge must be dismissed as timebarred. Although the copies of the Charge which are attached to the Yi Declaration indicate that
the Charge was filed with the EEOC on June 11, 2007, Defendants' Memo credits the
Complaint's allegation that the Charge was filed on May 9, 2007, and assumes that the Charge
was dual filed with the New York State Division of Human Rights (the "SDHR"). Defendants
reason that Title VII and ADEA claims arising from the incidents which occurred prior to July
13, 2006—i.e., 300 days prior to May 9, 2007—must be dismissed.
In Point III, defendants argue that this Court does not have subject-matter jurisdiction
over Title VII or ADEA claims alleging hostile work environment or retaliation. Defendants
note that this Court only has jurisdiction to hear Title VII or ADEA claims that are either
included in an EEOC Charge or based on conduct subsequent to that Charge which is reasonably
related to that alleged in the EEOC Charge. Defendants note that the Charge which plaintiff filed
with the EEOC relates solely to the disciplinary proceedings commenced in April 2007 and was,
therefore, insufficient to put the EEOC on notice that plaintiff was claiming hostile work
environment or retaliation.
Point IV of the Instant motion asserts that the Complaint fails to state a plausible claim
for relief. First, defendants argue that the Complaint does not allege facts suggesting that
plaintiff suffered an adverse employment action, one of the elements of a Title VII discrimination
claim. Second, defendants note that none of the allegedly adverse actions occurred under
circumstances giving rise to an inference of discrimination. Third, defendants argue that plaintiff
does not allege facts suggesting that plaintiff's age was a "but-for" cause of any adverse
employment actions. Fourth, defendants argue that plaintiff's Title VII and ADEA claims
against Bonnano and Pynn must be dismissed because Title VII and the ADEA do not provide
for individual liability. Fifth, defendants argue that the Complaint fails to adequately allege a
hostile work environment. Sixth and finally, defendants argue that the Complaint fails to state a
cause of action for retaliation.
Point V argues that plaintiff's state-law claims for intentional infliction of emotional
distress and negligent supervision are time-barred and fail to state a claim. First, defendants
argue that plaintiff's notice of claim was not filed until June 1, 2007, and did not place the City
on notice of the claims plaintiff intended to file. Second, defendants argue that the Complaint
does not allege facts sufficient to make out an emotional distress claim or a negligent supervision
claim. Point VI relates to damages, arguing that punitive damages are not available against
Although plaintiff has not filed any papers in opposition to the Instant motion, the Court
is nevertheless required to review the merits of the defendants' arguments. See McCall
232 F.3d 321, 323 (2d Cir. 2000) ("If a complaint is sufficient to state a claim on which relief can
be granted, the plaintiffs failure to respond to a Rule 12(b)(6) motion does not warrant
dismissal."); Foster v. Phillips, No. 03 CIV 3629 MBM DF, 2005 WL 2978686, at *3 (S.D.N.Y.
Nov. 7, 2005) ("where a Rule 12(b) motion has not been opposed, this Court must review the
merits of the motion and determine whether the movant has carried its burden."). In considering
a motion to dismiss pursuant to Rule 12(b)(6), a court "must accept as true all of the factual
allegations contained in the complaint." Swierkiewicz v. Sorema N A., 534 U.S. 506, 508, n. 1
(2002). However, "the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions" or "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). To survive a motion to dismiss, a complaint must allege sufficient facts "to state a claim
to relief that is plausible on its face." Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007). If a
party has not "nudged [her] claims across the line from conceivable to plausible, the complaint
must be dismissed." Id. Even if the complaint does not plausibly state a claim to relief, a court
must grant leave to amend the complaint if a liberal reading of the pleading "gives any indication
that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see
also Gomez v. USAA Fed. Say. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
In this case, defendants not only move to dismiss some claims pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, but also move, in the alternative, for summary judgment
on other claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. In a motion
pursuant to Rule 56, summary judgment is appropriate only when "there is no genuine issue as to
any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(a); see Celotex v. Catrett, 477 U.S. 317, 322 (1986). "[G]enuineness runs to whether
disputed factual issues can reasonably be resolved in favor of either party, [while] materiality
runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome
under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1,
5 (2d Cir. 1999) (internal quotation marks omitted).
Upon a motion for summary judgment, the moving party bears the burden of showing that
there is no genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
If the movant meets this burden, "the non-movant must set forth specific facts showing that there
is a genuine issue for trial." See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d
Cir. 1990) (internal quotations and citation omitted). The non-movant cannot avoid summary
judgment "through mere speculation or conjecture" or "by vaguely asserting the existence of
some unspecified disputed material facts." Id. at 121 (internal quotations and citations omitted).
Moreover, the disputed facts must be material to the issue in the case, in that they "might affect
the outcome of the suit under the governing law." Anderson, 477 U.S. at 248.
When evaluating a motion for summary judgment, "[t]he court must view the evidence in
the light most favorable to the party against whom summary judgment is sought and must draw
all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d
Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
"No genuine issue exists if, on the basis of all the pleadings, affidavits and other papers on file,
and after drawing all inferences and resolving all ambiguities in favor of the non-movant, it
appears that the evidence supporting the non-movant's case is so scant that a rational jury could
not find in its favor." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996). "If
the evidence [presented by the non-moving party] is merely colorable, or is not significantly
probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.
1998) (internal quotation marks omitted) (brackets in original).
Timeliness of the Title VII and ADEA Claims
In order to be timely, a claim under Title VII or the ADEA must be filed within 90 days
of the claimant's receipt of a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1) (governing Title
VII claims); 29 U.S.C. § 626(e) (governing ADEA claims). In Point I, defendants argue that
plaintiff's Title VII and ADEA claims are barred because plaintiff failed to meet this deadline.
Although the complaint alleges that plaintiff did not receive a right-to-sue letter until July 20,
2010, defendants have adduced proof that the EEOC issued a right-to-sue notice on December
31, 2007. Since this action was not commenced until October 20, 2010, defendants reason that
plaintiff's Title VII and ADEA claims are time-barred.
There is a presumption that a notice provided by a government agency was mailed on the
date shown on the notice. Tiberio v. Allergy Asthma Immunology, 664 F.3d 35, 37 (2d Cir.
2011). In addition, courts normally assume that a mailed document is received three days after
its mailing. Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996) (citing
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1 (1984)). Accordingly, the Court
presumes that the right-to-sue notice dated December 31, 2007, was mailed on that date and was
received three days later.
That presumption is not irrebutable. "The presumption may be rebutted by admissible
evidence that the document was not mailed, was received late, or was never received." Isaacson
v. N V. Organ Donor Network, 405 F. App'x 552, 553 (2d Cir. 2011) (summary order) (citing
Sherlock, 84 F.3d at 526). Under some circumstances, the mere denial of receipt of a document
may be insufficient to rebut the presumption. See Meckel v. Cont '1 Resources Co., 758 F.2d 811,
817 (2d Cir. 1985) (relying on New York law in holding that mere denial of receipt of a notice
does not rebut presumption of receipt which arises from proof that an office procedure followed
in a regular course of business required that the notice be properly addressed and mailed).
However, in the absence of evidence establishing adherence to an office mailing procedure or
other proof of mailing, courts in this district have held that a sworn affidavit denying receipt of a
right-to-sue notice is sufficient to create a genuine issue of material fact with respect to the
receipt of that notice. See, e.g., Capobianco v. Sandow Media Corp., Nos. 11 Civ. 3162 (LAP),
11 Civ. 3163 (LAP), 2012 WL4561761, at *3 (S.D.N.Y. Sept. 29, 2012) (a plaintiff's sworn
testimony that she did not receive a right-to-sue letter creates dispute of material fact that
precludes dismissal of an ADA claim on the ground that it was not timely filed); Hilton v.
Bedford Paving LCC, 769 F. Supp. 2d 92, 99 (W.D.N.Y. 2010) (allowing a Title VII claim to
proceed where plaintiff and counsel both submitted sworn affidavits stating neither received the
right-to-sue letter and where defendant merely relied upon the presumption of receipt);
Greenidge v. Ben Hur Moving & Storage, Inc., No. 02 Civ. 1635 (ERK), 2002 WL 1796812, at
*3 (E.D.N.Y. Aug. 6, 2002) ("[A]n affidavit by the claimant stating that she never received the
right-to-sue letter sent by the EEOC may rebut the presumption of receipt.").
In this case, plaintiff has submitted a declaration (incorrectly labeled an "answer") in
which she states under penalty of perjury that she received "only one 90 day letter" and that she
provided that document to her attorney. Answer sworn Nov. 12, 2013, ¶ 2. That attorney then
filed the Complaint, which unequivocally stated that "the EEOC issued a right-to-sue letter
informing Plaintiff of her right to sue defendants in federal court" on July 20, 2010. Collectively,
these documents constitute evidence that plaintiff never received a copy of the right-to-sue letter
dated December 31, 2007. Moreover, this evidence is corroborated to some extent by the fact
that the SDHR duplicated the efforts of the EEOC by investigating the same Charge, which
suggests that the SDHR, too, may not have received a copy of the December 31, 2007, right-tosue letter. This proof is sufficient to raise a genuine issue of material fact with respect to whether
plaintiff ever received the December 31, 2007, right-to-sue letter, and precludes this Court from
granting summary judgment on the ground that plaintiff's Title VII and ADEA claims were
The second and third points raised in Defendants' Memo relate to the administrative
exhaustion requirements of Title VII and the ADEA. "Before an individual may bring a Title VII
suit in federal court, the claims forming the basis of such a suit must first be presented in a
complaint to the EEOC or the equivalent state agency." Williams v. N Y. C. Housing Auth., 458
F.3d 67, 69 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-5). Similarly, "[b]efore bringing a suit
under the ADEA, a plaintiff must file a timely complaint with the EEOC." Ximines v. George
Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008) (citing 29 U.S.C. § 626(d)). The purpose
of the exhaustion requirement is to permit the EEOC or equivalent state agency to resolve the
complaint without litigation. See Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 26 (2d Cir. 1985)
("[t]he purpose of the [ADEA] notice provision ... is to encourage settlement of discrimination
disputes through conciliation and voluntary compliance..."); Stewart v. US. Immigration and
Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985) ("the purpose of the [Title VII]
exhaustion requirement ... is to give the administrative agency the opportunity to investigate,
mediate, and take remedial action ....").
Since that purpose "would be defeated if a complainant could litigate a claim not
previously presented to and investigated by the EEOC," Miller, 755 F.2d at 26, a district court
can only "hear Title VII claims that either are included in an EEOC charge or are based on
conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the
EEOC charge." Butts v. City of New York Dept. of Housing Pres. & Dev., 990 F.2d 1397, 1401
(2d Cir. 1993) (citing cases). Unexhausted claims are "reasonably related" where (1) "the
conduct complained of would fall within the 'scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination;" (2) the plaintiff is "alleging
retaliation by an employer against an employee for filing an EEOC charge;" or (3) "a plaintiff
alleges further incidents of discrimination carried out in precisely the same manner alleged in the
EEOC charge." Id. at 1402-03 (quotation and other citations omitted). "In determining whether
claims are reasonably related, the focus should be on the factual allegations made in the [EEOC]
charge itself, describing the discriminatory conduct about which a plaintiff is grieving." Deravin
v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (brackets in original).
The time period for filing a charge of discrimination varies, depending on whether the
individual files his charge directly with the EEOC or with a state or local agency. In New York,
which has both state and local fair employment agencies, an individual who initially files a
grievance with the state or local agency must file a charge with the EEOC within 300 days "after
the alleged unlawful employment practice occurred," or within 30 days after receiving notice that
the state or local agency has terminated the proceeding, whichever is earlier. 42 U.S.C.
§ 2000e-5(e)(1). If a charge is filed solely with the EEOC, it must be filed within 180 days after
the alleged unlawful employment practice occurred. Id.
A discrete retaliatory or discriminatory act occurs on the day that it happens.
Passenger Corp. v. Morgan, 536 U. S. 101, 110 (2002). A plaintiff must, therefore, file a Charge
of Discrimination within either 180 or 300 days of the date of those discrete retaliatory or
discriminatory acts or lose the ability to recover for them. Id. "[D]iscrete discriminatory acts are
not actionable if time barred, even when they are related to acts alleged in timely filed charges."
Id. at 113.
In contrast, hostile work environment claims involve repeated conduct which occurs over
a series of days or perhaps years. Id. at 115. This sort of "unlawful employment practice
cannot be said to occur on any particular day." Id. Accordingly, "[ijn order for the charge to be
timely, the employee need only file a charge within 180 or 300 days of any act that is part of the
hostile work environment." Id. at 118.
Although exhaustion of administrative remedies is a precondition to filing an action in
federal court under Title VII or the ADEA, it is not a jurisdictional requirement. Francis v. City
of New York, 235 F.3d 763, 768 (2d Cir. 2000). Rather, it is a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling. Id. at 767. However,
administrative exhaustion remains "an essential element of Title Vii's statutory scheme, ... and
one with which defendants are entitled to insist that plaintiffs comply." Id. at 768 (internal
quotations and citation omitted).
In this case, defendants advance two arguments relating to the administrative exhaustion
requirement. In Point II, defendants argue that Title VII and ADEA claims arising from incidents
which occurred more than 300 days prior to the filing of the Charge of Discrimination with the
EEOC must be dismissed as time-barred. In Point III, defendants argue that this Court does not
have subject-matter jurisdiction over Title VII or ADEA claims alleging hostile work
environment or retaliation because those claims were not raised in the Charge filed with the
With respect to Point II, the Complaint alleges that plaintiff filed a Charge of
Discrimination with the EEOC on or about May 9, 2007. Complaint, ¶ 3. Documents filed by
defendants in support of the instant motion cast doubt on the accuracy of this allegation, in that
they indicate that plaintiff filed a charge of discrimination with both the EEOC and the SDHR on
June 11, 2007. See Yi Declaration, Exs. B & E. However, it is unnecessary for purposes of
Point II to determine exactly when and where the Charge of Discrimination was filed.
Defendants' argument assumes the facts in the manner most favorable to plaintiff: that the
Charge was filed with the SDHR on May 9, 2007. Defendants then argue that claims which
occurred before July 13, 2006—i.e., 300 days prior to May 9, 2007—are time-barred. See
Defendants' Memo, p. 9.
The Complaint alleges several discrete acts of discrimination and/or retaliation, which
can be grouped into four categories. First, the complaint alleges a conversation which took place
shortly before plaintiff started work in September 2004, in which defendant Bonnano
unsuccessfully attempted to discourage plaintiff from accepting the position as a lead paint
inspector. Second, the pleading alleges acts which took place on or around June 8, 2006, after
plaintiff reported to Pynn that her co-worker, Roberts, was shopping during work hours. Third,
the Complaint alleges acts which took place in March 2007 and on April 3, 2007, in connection
with Kogan's accusation that plaintiff was improperly powering down the computer they shared.
Finally, the pleading alleges acts in connection with disciplinary proceedings initiated in April
To the extent that the Complaint is claiming that acts in the first two categories
constituted discrete acts of discrimination or retaliation in violation of Title VII or the ADEA,
those claims are time barred. As defendants correctly note, plaintiff did not file a charge within
300 days after these acts occurred and does not allege a basis for equitable tolling of the 300-day
limitations period. Accordingly, these discriminatory or retaliatory acts are not actionable. See
Morgan, 536 U. S. at 110. In contrast, the acts in the latter two categories occurred within 300
days of the filing of the Charge and are not time-barred. These would be actionable to the extent
that they are either raised in the Charge or reasonably related to acts that were raised in the
As defendants note in Point III, however, plaintiff's Charge related solely to the acts in
the fourth category. The Charge made no mention of Kogan or the acts which allegedly occurred
as a result of his computer-related complaints. In addition, the Charge did not allege retaliation
or the creation of a hostile work environment. Rather, the Charge alleged only that HPD was
fabricating disciplinary violations in an effort to terminate plaintiff, and that HPD wanted to
terminate plaintiff because of her gender, race and age. Since these are the only claims included
in the Charge which plaintiff filed with the EEOC, only these claims and any claim based on
conduct 'reasonably related' to these claims are administratively exhausted.
Butts, 990 F.2d at
1401. Other claims, including plaintiff's retaliation claims and hostile work environment claims,
are not administratively exhausted and must be dismissed.
Failure to State a Claim
Even if all of plaintiff's Title VII and ADEA claims were timely and administratively
exhausted, they would still be dismissed for failure to state a claim pursuant to Rule 12(b) of the
Federal Rules of Civil Procedure. To make out a prima facie Title VII discrimination claim, a
plaintiff "must demonstrate the following: (1) she was within the protected class; (2) she was
qualified for the position; (3) she was subject to an adverse employment action; and (4) the
adverse action occurred under circumstances giving rise to an inference of discrimination."
United States v. Brennan, 650 F.3d 65, 93 (2d Cir. 2011) (quoting Leibowitz v. Cornell Univ.,
584 F.3d 487, 498 (2d Cir. 2009)). "[A] discrimination complaint need not allege facts
establishing each element of a prima facie case of discrimination to survive a motion to dismiss,"
but it must nevertheless comply with the plausibility standard set forth in Twombly and Iqbal.
E.E.O.C. v. Port Auth. ofN.Y. & NJ, 768 F.3d 247, 254 (2d Cir. 2014) (quoting Swierkiewicz,
534 U.S. at 510). Thus, Title VII discrimination claims which fail to plausibly allege that the
plaintiff suffered an adverse employment action are subject to dismissal upon a motion to
dismiss. See, e.g., Chung v. City Univ. of New York, ---
F. App'x ---, No. 14-3611-CV, 2015 WL
1428192, at *2 (2d Cir. Mar. 31, 2015) (summary order).
The incidents in which Bonnano allegedly discouraged plaintiff from accepting the
position as a lead-paint inspector; in which Pynn yelled at plaintiff for reporting Roberts'
misconduct, and in which Bonnano credited Kogan' s accusations and screamed at plaintiff for
powering down a computer do not constitute adverse employment actions. For purposes of a
Title VII discrimination claim by a person already employed, an adverse employment action is
defined in our Circuit as a "materially adverse change in the terms and conditions of
employment." Sanders v. N. Y. C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (internal
quotation marks and citation omitted). "Title VII ... does not set forth 'a general civility code for
the American workplace," Burlington N & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)), and does not
require supervisors "to engage in unfailingly decorous or diplomatic conduct" or "empower
courts to act as super-personnel departments, poised to question the reasonableness or fairness of
every supervisor-employee interaction." Marcus v. Barilla America NY, Inc., 14 F. Supp. 3d
108, 114 (W.D.N.Y. 2014). Accordingly, "being yelled at, ... publicly reprimanded, and
condescended to ... are not actionable via Title VII... " E.E.O.C. v. Bloomberg L.P., 967 F.
Supp. 2d 816, 885 (S.D.N.Y. 2013).
In contrast, the allegations that disciplinary proceedings were commenced against
plaintiff on contrived charges could make out an adverse employment action. "Being forced to
defend against disciplinary charges may constitute an adverse employment action." Rolon v.
Ward, 345 F. App'x 608, 610 (2d Cir. 2009) (summary order) (citing Albert v. City of Hartford,
529 F. Supp. 2d 311, 335 (D.Conn. 2007)). However, "mistreatment at work ... is actionable
under Title VII only when it occurs because of an employee's sex, or other protected
characteristic. Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Thus, to state a claim, a
plaintiff must at a minimum allege facts that suggest that the complained-of conduct was motived
by discriminatory animus. Patane v. Clark, 508 F.3d 106, 112 & n. 3 (2d Cir. 2007) (explaining
that although a plaintiff need not plead a prima facie case to survive a motion to dismiss,
dismissal is nevertheless appropriate where the plaintiff "failed to allege even the basic elements
of a discriminatory action claim."); see also Hedges v. Town of Madison, 456 F. App'x 22, 23 (2d
Cir.2012) (summary order) (describing post-Iqbal pleading standards in Title VII actions).
In this case, plaintiff's pleadings do not allege facts to suggest that the disciplinary
charges were motivated by discriminatory animus. Rather, the Complaint alleges that the charge
against which plaintiff was ultimately forced to defend—the allegation that plaintiff used profane
language toward co-workers—was fabricated by Roberts, the co-worker who plaintiff had
reported for shopping during work hours. In addition, the Complaint implies that Pynn, the
supervisor who served the initial disciplinary charge on plaintiff, was supportive of Roberts, who
Pynn considered his "best man." These facts strongly suggest that the allegedly false charges
were the result of personal animus between Roberts and plaintiff, and that Pynn was favorably
disposed toward Roberts and inclined to credit his claims. In contrast, the Complaint contains no
factual allegations that suggest the disciplinary charges arose from discriminatory animus.
Accordingly, the allegations relating to the disciplinary charges do not state a Title VII claim.
See Wilson v. Family Dollar Stores off. Y, Inc., No. CV-06-639 (DGT), 2008 WL 4426957, at
*8 (E.D.N.Y. Sept. 25, 2008) (behavior which "merely indicates personal enmity rather than
discrimination ... does not violate Title VII.")
ADEA and Retaliation
The Complaint also fails to state a claim of age discrimination or retaliation. To establish
a prima facie case of discrimination under the ADEA, a plaintiff must show "(1) that she was
within the protected age group, (2) that she was qualified for the position, (3) that she
experienced [an] adverse employment action, and (4) that such action occurred under
circumstances giving rise to an inference of discrimination." Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 107 (2d Cir. 2010). Similarly, to establish a prima facie case of retaliation, a
plaintiff must show: "(1) participation in a protected activity; (2) that the defendant knew of the
protected activity; (3) an adverse employment action; and (4) a causal connection between the
protected activity and the adverse employment action." See Hicks v. Baines, 593 F.3d 159, 164
(2d Cir. 20 10) (internal quotation marks omitted). As discussed above, the incidents in which
Bonnano credited Kogan's accusations and screamed at plaintiff for powering down a computer
do not constitute adverse employment actions, and the Complaint does not allege facts
suggesting that the disciplinary charges were motivated by discriminatory animus or a desire to
retaliate against plaintiff for engaging in protected activity.
Hostile Work Environment
As noted above, plaintiff's Charge pertained solely to the disciplinary proceedings, and
did not allege a hostile work environment. Even if it had, the Complaint fails to state a claim for
hostile work environment. "A hostile work environment exists under Title VII where the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment." Moll v. Telesector Res. Group, Inc., 760 F.3d 198, 203 (2d Cir. 2014).'
To state a claim based on a hostile work environment, a plaintiff is required "to plead facts that
demonstrate '(1) that [the] workplace was permeated with discriminatory intimidation that was
sufficiently severe or pervasive to alter the conditions of [the] work environment, and (2) that a
specific basis exists for imputing the conduct that created the hostile environment to the
employer." Chick v. County of Suffolk, 546 F. App'x 58, 59 (2d Cir. 2013) (summary order)
(quoting Schwapp v. Town ofAvon, 118 F.3d 106, 110 (2d Cir. 1997)).
"There is no 'mathematically precise test' ... for deciding whether an incident or series of
incidents is sufficiently severe or pervasive to alter the conditions of a plaintiff's working
environment. Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22-23 (1993)). "[C]ourts must assess the totality of the
circumstances, considering elements such as '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." Id. (quoting Harris,
5 1 U. S. at 23). "Facially neutral incidents may be included ... among the 'totality of the
circumstances' ... , so long as a reasonable fact-finder could conclude that they were, in fact,
based on [a protected characteristic]." Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002).
'The analysis of the hostile working environment theory of discrimination is the same
under the ADEA as it is under Title VII. Brennan v. Metro. Opera Assn, Inc., 192 F.3d 310, 318
(2d Cir. 1999).
"[T]he conduct complained of must be severe or pervasive enough that a reasonable person
would find it hostile or abusive, and the victim must subjectively perceive the work environment
to be abusive." Raspardo, 770 F.3d at 114 (quoting Harris, 510 U.S. at 21-22). "Isolated
incidents generally will not suffice to establish a hostile work environment unless they are
extraordinarily severe." Kaytor v. Electric Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010).
In this case, the Complaint alleges four incidents over a two and one-half year period,
none of which could be characterized as severe and most of which had little or nothing to do with
plaintiff's protected characteristics. First, just before plaintiff transferred to the Hooper Street
office in September 2004, Bonnano advised plaintiff not to accept the position of lead-paint
inspector because it required her to carry ladders. Although plaintiff perceived this comment as
"impl[ying] that ... a middle-aged woman ... would not be able to perform her new job on account
of her age and/or sex," Complaint, ¶ 15, the Complaint does not allege that Bonnano made
explicit reference to plaintiff's gender or age. Morever, the comments did not express hostility
towards women or elderly workers, and plaintiff does not allege that Bonnano made any other,
similar comments thereafter.
Indeed, the Complaint does not allege that any further incidents occurred until June 2006,
approximately 21 months later. Although Pynn summoned plaintiff to the men's locker room in
order to yell at her, there is nothing to suggest that Pynn' s hostility toward plaintiff had anything
to do with her protected characteristics. Pynn made no comments about plaintiff's sex, race, or
age, but made it clear that he was infuriated about her actions in reporting Roberts' misconduct.
Similarly, there is nothing to suggest that Bonnano's decision to credit Kogan's
accusations and to yell at plaintiff for powering down the computer had anything to do with
plaintiff's race, gender or age. Although plaintiff alleges that she was "singled out for 'improper'
computer use ... because she was an older African-American female," Complaint, ¶ 24, her
pleading does not allege any facts that would support this speculation. Moreover, while
Bonnano may have unjustly screamed at plaintiff in a public manner, she was not subjected to
any adverse employment actions as a result of Kogan's accusations. Furthermore, the fact that
she was subsequently reassigned to share a computer with another African-American employee
does not justify the inference that Bonnano's conduct was racially motivated.
As noted above, the only conduct alleged in the complaint that rose to the level of an
adverse employment action related to the disciplinary proceedings which were commenced in
April 2007. Those proceedings were apparently based on Roberts' allegations that plaintiff had
used profanity in conversations with co-workers. Again, there is nothing to suggest that those
disciplinary proceedings were motivated by discriminatory animus, rather than the personal
animus that Roberts and, perhaps, Pynn felt toward plaintiff because of the June 2006 incident.
Aside from these four incidents, the only other factual allegations which plaintiff makes
in support of her hostile work environment claim relate to the lack of a female locker room.
However, the Complaint does not allege that she and the other women had no place to change or
that the lack of a locker room affected her ability to perform her job. See, e.g., Dauer v. Verizon
Commc'ns Inc., No. 03 Civ. 05047 (PGG), 2009 WL 186199, at *7 (S.D.N.Y. Jan. 26, 2009)
(holding that proof of a failure to provide separate bathroom facilities for women, standing alone,
was insufficient to make out a hostile work environment claim.)
In sum, the Complaint does not allege facts that suggest that the Hooper Street office
"was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter
the conditions of [plaintiff's] work environment." See Chick, 546 F. App'x at 59. To the
contrary, the Complaint alleges a few isolated incidents, only some of which were even arguably
discriminatory in nature. Accordingly, the Complaint fails to state hostile work environment
claims under Title VII or the ADEA.
A district court "may decline to exercise supplemental jurisdiction over a claim ... [if]
the district court has dismissed all claims over which it has original jurisdiction ...." 28 U.S.C.
§ 1367(c)(3). Although "[t]he exercise of supplemental jurisdiction is within the sound
discretion of the district court," Lundy v. Catholic Health Sys. of Long Al. Inc., 711 F.3d 106 5
117 (2d Cir. 2013), the Second Circuit has repeatedly stated that "if a plaintiff's federal claims
are dismissed before trial, 'the state claims should be dismissed as well." Brzak v. United
Nations, 597 F.3d 107, 113-14 (2010) (quoting Cave v. E. Meadow Union Free Sch. Dist., 514
F.3d 240, 250 (2d Cir.2008)). This rule is consonant with the Supreme Court's observation that
when "all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and
comity—will point toward declining to exercise jurisdiction over the remaining state-law
claims." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
For the reasons stated above, plaintiff's Title VII and ADEA claims, set forth in Counts I
through III of the Complaint, are dismissed. The remaining three counts allege state-law claims:
a claim pursuant to the NYCHRL, a claim for intentional infliction of emotional distress, and a
claim for negligent supervision. Since all federal claims have been dismissed, the Court declines
to exercise supplemental jurisdiction over these three counts.
For the reasons stated above, defendants' motion to dismiss or, in the alternative, for
summary judgment is granted is granted with respect to the Title VII and ADEA claims set forth
in Counts I, II and III of the Complaint. The Court declines to exercise supplemental jurisdiction
with respect to the state-law claims set forth in Counts IV, V and VI, and those claims are
dismissed without prejudice. The Clerk of Court is directed to enter judgment in accordance
with this Memorandum and Order and to close this case.
/s/ Sandra L. Townes
United States District Judge
Dated: June 22, 2015
Brooklyn, New York
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