Duplan v. City of New York
Filing
29
MEMORANDUM AND ORDER granting 22 Motion to Dismiss: For the reasons stated in the attached Memorandum and Order, the City's Motion to Dismiss (Doc. No. 22 ) is granted. The Clerk of Court is directed to enter judgment accordingly, and close the case. Ordered by Judge Roslynn R. Mauskopf on 3/30/2017. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
LOUIS DUPLAN,
Plaintiff,
- against -
MEMORANDUM AND ORDER
15-CV-4136 (RRM) (LB)
THE CITY OF NEW YORK,
Defendant.
---------------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff Louis Duplan brings this action against his employer, defendant the City of New
York (the “City”), alleging race and national origin discrimination, retaliation, and hostile work
environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”) and 42 U.S.C. § 1981 (“§ 1981”). (See generally Second Am. Compl. (Doc. No.
17).) Before the Court is the City’s motion to dismiss Duplan’s second amended complaint
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim upon
which relief can be granted. (See Mot. Dismiss (Doc. No. 22).)
For the reasons that follow, the City’s motion is granted.
BACKGROUND
The following facts are taken from Duplan’s second amended complaint and considered
to be true for purposes of this motion to dismiss.1 Duplan is “a Black, gay male from Haiti.”
(Second Am. Compl. at ¶ 7.) Beginning in 2002, Duplan was employed by the City in the
Department of Health and Mental Hygiene (the “DHMH”). (Id.) From 2002–2005, Duplan
served as the Assistant Director for the Administration Unit of the Environmental Health
Duplan originally commenced this action pro se against the City on July 10, 2015. (See Compl. (Doc. No. 1).) On
July 17, 2015, Duplan obtained counsel and filed his first amended complaint. (Am. Compl. (Doc. No. 5).) By
Order dated November 18, 2015, Duplan was granted leave to amend his complaint for a second time; and on
November 25, 2015, Duplan filed his second amended complaint. (See generally Second Am. Compl.)
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Division. (Id.) From 2005–2011, Plaintiff served as the Director of Operations for the
Administration Unit of the Bureau of HIV/AIDS Prevention and Control (the “Bureau”). (Id.)
I.
Factual Background Prior to Duplan’s Formal Complaints
Around June 2011, Duplan applied to replace Randolph Rajpersaud as Director of
Administration for the Bureau. (Second Am. Compl. at ¶ 9.) Rajpersaud was on the hiring
committee to determine his own replacement. (Id.) Duplan had expressed interest in the
position to Rajpersaud before the job vacancy was posted. (Id.) In July 2011, Duplan was
passed over for the position, which was instead filled by “a White, straight, American-born
woman named Lori Cohen.” (Id. at ¶¶ 9–10.)
Duplan alleges that he “was the most logical candidate for the position,” but he was
discriminated against in the hiring process because of “his race, national origin, and sexual
orientation.” (See id. at ¶¶ 10, 13.) Duplan contends that he was more qualified than Cohen,
who had only been working for the City for one year prior and had never performed the duties of
the Director of Administration. (Id. at ¶¶ 10–11.) Between 2005–2011, Duplan had allegedly
accompanied Rajpersaud to many meetings and fulfilled Rajpersaud’s duties in his absence. (Id.
at ¶ 9.) Moreover, Duplan was one of only two directors who had directly reported to the
Director of Administration. (Id.)
Duplan “believe[s] that Mr. Rajpersaud had tried, in the months prior to the position
being posted, to set the stage for, and justify, Plaintiff not receiving the position . . . by making
false, derogatory comments about his performance to other managers, such as that he didn’t take
initiative and was insubordinate . . . .” (Id. at ¶ 13.) Duplan alleges that Rajpersaud
“diminish[ed] the substance of Plaintiff’s position in or about May of 2011” by “removing and
transferring one of Plaintiff’s five subordinates/supervisees” and removing and reassigning some
of Duplan’s responsibilities as Director of Operations. (See id.)
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Duplan also alleges that Rajpersaud told him many times that “the Black people who
worked in the Bureau were lazy and . . . that Haitians were troublemakers.” (Id. at ¶ 12.) Duplan
references other incidents that allegedly indicate Rajpersaud’s negative feelings towards other
black, gay, and Haitian employees. (See id.) Specifically, Duplan alleges that Rajpersaud had
demoted Kermit Bostock, another black and gay employee, from the position of Director of
Contracts and replaced him with “a non-Black (Hispanic) male named Jonathan Santos.” (Id.)
Rajpersaud also allegedly “hired a White female named Rosanna Volpe to the position of
Director of Fiscal Management over a Black, Haitian employee named Merline Jean-Cashmir,
even though Ms. Jean-Cashmir had a higher civil service title than Ms. Volpe.” (Id.)
II.
Factual Background During and After Duplan’s Formal Complaints
On July 26, 2011, Duplan filed a complaint with the DHMH’s Equal Employment
Opportunity (“EEO”) Office alleging discrimination on the basis of race, national origin, and
sexual orientation. (Second Am. Compl. at ¶ 14.) On August 9, 2011, Duplan also filed
complaints with the New York State Division of Human Rights (“SDHR”) and the United States
Equal Employment Opportunity Commission (“EEOC”). (Id. at ¶ 15.) After an investigation,
the SDHR found that no probable cause existed to support a finding of discrimination or
retaliation; the EEOC subsequently adopted the SDHR’s findings and issued a right-to-sue letter
on July 30, 2012. (See Def.’s Ex. B (Doc. No. 24-2); Def.’s Ex. C (Doc. No. 24-3).)
Duplan alleges that after his July and August 2011 complaints, the City retaliated against
him by stripping him of his duties under the pretext of “re-organization” and effectively
demoting him. (Id. at ¶ 15.) Duplan alleges that the City and Rajpersaud stripped him of many
of his job duties, including overseeing “human resources/personnel-related activities,” “facilities
management,” and “several telecommunications-related and transportation-related issues.” (Id.
at ¶ 16.) The City also removed “his subordinates.” (Id. at ¶ 16–17.) As a result, Duplan was
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left “with a great deal of idle time,” and his new position was “materially less prestigious,
materially less suited to his skills and experience and materially less conducive to career
advancement. (Id. at ¶ 17.) Moreover, while the Bureau’s website still listed his position as
Director of Operations, his annual performance evaluations listed his title as “Manager of
Personnel.” (Id. at ¶ 17.)
Duplan alleges that since his July and August 2011 complaints, he (1) was twice passed
over for the job of Director of Administration (in 2013 and 2014); (2) did not receive a salary
increase, unlike many other employees; and (3) was rigorously prosecuted in March 2014 by the
EEO Office for sexual harassment claims made against Duplan, despite the complainant
requesting merely an informal conference. (See id. at ¶ 18.) Moreover, the City allegedly
overlooked Duplan in September 2014 for the position of Deputy Director of Human Resources
and Operations, a job which Duplan claims contained all of the responsibilities stripped of him
during the “reorganization.” (Id. at ¶ 18(a).) When Duplan approached John Rojas, the Director
of Administration, about why he could not reinstate Duplan’s job responsibilities rather than find
someone else to fulfill them as Deputy Director of Human Resources and Operations, Rojas
claimed that “all matters were out of his control at that point.” (Id.) Duplan also claims that
Rojas was “told by the upper management that when it comes to Plaintiff, he (John Rojas) would
be given information on a ‘need to know’ basis . . . .” (Id. at ¶ 18(d).)
In September 2014, Duplan emailed numerous City officials complaining that he had
been discriminated against because of his race and retaliated against for his formal complaints to
the EEO Office. (Id. at ¶ 19.) In October 2014, Duplan filed additional SDHR and EEOC
charges, in which he complained about the City’s retaliation against him for his formal
complaints. (Id. at ¶ 20.) After an investigation, the SDHR again found that no probable cause
existed to support a finding of discrimination or retaliation; the EEOC subsequently adopted the
4
SDHR’s findings and issued a right-to-sue letter on June 16, 2015. (See Def.’s Ex. D (Doc. No.
24-4); Def.’s Ex. E (Doc. No. 24-5); Def.’s Ex. F (Doc. No. 24-5).)
Within a month of his 2014 SDHR and EEOC filings, Duplan was assigned maintenance
jobs that “were below his civil service title.” (Id. at ¶ 21.) Shortly thereafter, Duplan emailed
another City official to complain that his new maintenance jobs were in retaliation for his formal
complaints about discrimination. (Id. at ¶ 22.)
On June 16, 2015, Duplan received a Right to Sue letter from the EEOC, and on July 10,
2015, Duplan filed suit in this Court. (Id. at ¶ 6; see generally Compl.) In September 2015, after
filing his first amended complaint, the City allegedly stripped Duplan of his “only remaining
responsibility from when he was the Director of Operations by cancelling [his] access to the
electronic system to complete time management, leaving [him] completely idle at work since
then.” (Second Am. Compl. at ¶ 25.)
STANDARD OF REVIEW
Pursuant to Rule 12(b)(6), a party may move to dismiss a cause of action that “fail[s] to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to withstand a
motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Hayden v. Paterson, 594 F.3d 150,
161 (2d Cir. 2010). A claim is plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal, 556 U.S. at
678). The Court assumes the truth of the facts alleged, and draws all reasonable inferences in the
nonmovant’s favor. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). A complaint need not
contain “detailed factual allegations,” but it must contain “more than an unadorned, the5
defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
555. Although all factual allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. In other words,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
In the context of employment discrimination claims, “plaintiff need not plead a prima
facie case of discrimination . . . to survive [a] motion to dismiss.” Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 515 (2002). Instead, the complaint must plead “enough facts to state a claim for
relief that is plausible on its face.” Patane v. Clark, 508 F.3d 106, 111–12 (2d Cir. 2007)
(quoting Twombly, 550 U.S. at 570). Specifically, the complaint must allege “the essential
elements of an employment discrimination claim—that [the] plaintiff suffered discrimination on
the basis of protected status.” Mabry v. Neighborhood Defender Serv., 769 F. Supp. 2d 381, 392
(S.D.N.Y. 2011).
DISCUSSION
The City seeks to dismiss Duplan’s § 1981 and Title VII claims as untimely, or in the
alternative, for failure to state a claim for relief under the applicable standards. For the reasons
that follow: Duplan’s § 1981 discrimination, retaliation, and hostile work environment claims are
dismissed for failure to state a claim for relief against a state actor; Duplan’s Title VII retaliation
claims arising before December 27, 2013 are dismissed as untimely; and Duplan’s remaining
Title VII retaliation and hostile work environment claims are dismissed for failure to state a
claim for relief.
I.
§ 1981 Claims
Duplan brings claims against the City under 42 U.S.C. § 1981; however, § 1983
“constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state
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governmental units . . . .” Jett v. Dallas Independent School District, 491 U.S. 701, 733 (1989)
(emphasis added); Buckley v. New York, 959 F. Supp. 2d 282, 295 (E.D.N.Y. 2013) (finding
§ 1981 does not provide an implied private cause of action for damages against state and
municipal actors). Although some courts have questioned whether Jett remains good law after
Congress amended § 1981 in the Civil Rights Act of 1991, all but one of the federal appellate
courts to have subsequently addressed the amendments have held that Jett remains good law.
See Gladwin v. Pozzi, 403 F. App’x 603, 605 (2d Cir. 2010) (summary order) (citing Jett in
finding that § 1983 provides the exclusive remedy for the plaintiff to state a claim against a state
actor); Smith v. Metro. Dist. Comm’n, 105 F. Supp. 3d 185, 189 (D. Conn. 2015) (finding that
although one circuit court has found the private right of action exists under § 1981, “every other
circuit court to have considered the issue” has held otherwise).2
While some courts have construed a plaintiff’s § 1981 claims as encompassed by that
plaintiff’s § 1983 claims, at no point has Duplan pleaded or argued § 1983 claims against the
City. (See generally Compl.; Pl.’s Opp’n (Doc. No. 25)); see, e.g., Westbrook v. City Univ. of
N.Y., 591 F. Supp. 2d 207, 223 (E.D.N.Y. 2008) (construing plaintiff’s § 1981 claim as arising
under § 1983 because plaintiff had alleged and briefed similar claims under § 1983).
Accordingly, Duplan may not seek damages against state or municipal actors pursuant to § 1981.
Thus, Duplan’s § 1981 claims are dismissed for failure to state a claim for relief against the
City.3
2 See also Brown v. Sessoms, 774 F.3d 1016, 1021 (D.C. Cir. 2014); Campbell v. Forest Pres. Dist. of Cook Cty.,
Ill., 752 F.3d 665, 671 (7th Cir. 2014); McGovern v. City of Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009);
Arendale v. City of Memphis, 519 F.3d 587, 598 (6th Cir. 2008); Bolden v. City of Topeka, Kan., 441 F.3d 1129,
1137 (10th Cir. 2006); Oden v. Oktibbeha Cty., Miss., 246 F.3d 458, 464 (5th Cir. 2001); Butts v. Cty. of Volusia,
222 F.3d 891, 894 (11th Cir. 2000); Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir.1995).
Even if the Court were to construe Duplan’s claims as arising under § 1983, Duplan’s 2011 claims of
discrimination would be untimely under the applicable three-year statute of limitations. See Jones v. R.R. Donnelley
& Sons Co., 541 U.S. 369, 382 (2004) (holding that the three-year statute of limitations applies to § 1981 claims that
were made possible before the 1991 amendments). Additionally, to the extent that Duplan’s § 1981 retaliation and
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II.
Title VII Claims
a. Timeliness of Claims
In order to bring Title VII claims in federal court, a plaintiff must first exhaust
administrative remedies through the EEOC. See 42 U.S.C. § 2000e-5(e); Shah v. N.Y. State
Dep’t of Civ. Serv., 168 F.3d 610, 613 (2d Cir. 1999); see also Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). A Title VII claimant must file an EEOC
charge within 300 days of the accrual of the cause of action. See 42 U.S.C. § 2000e-5(e)(1);
Legnani, 274 F.3d at 685–86. The claimant will then receive an EEOC “right to sue letter” and
must file an action in court within 90 days of the receipt of that letter. 42 U.S.C. § 2000e-5(f)(1).
Here, Duplan failed to sue within 90 days of receiving the right to sue letter for his 2011
EEOC charge, dated July 12, 2012. As such, the following claims related to his 2011 EEOC
charge are dismissed as time-barred: (1) the failure to promote Duplan in July 2011, (see Second.
Am. Compl. at ¶¶ 9–13); (2) the removal of many of Duplan’s job responsibilities, which
occurred “from in or about the end of July 2011 to in or about September 2011,” (see id. at ¶ 16);
(3) the alleged demotion to “Manager of Personnel” as listed in his annual performance
evaluations in 2011, (see id. at ¶ 17) ; and (4) Rajpersaud’s alleged attempts to decrease Duplan’s
salary in “late 2011,” (see id. at ¶ 18(b)). (See also Def.’s Ex. C (Doc. No. 24-3).)4
hostile work environment claims are not time-barred, they are dismissed for failure to demonstrate a causal
connection and failure to demonstrate sufficiently severe or pervasive harassment, respectively. See Section II.b,
II.c infra; see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 91 (2d Cir. 22015) (finding that the
elements of a retaliation claim under § 1983 mirror those under Title VII).
4 In resolving motions to dismiss, courts may consider documents attached to, integral to, or referred to in the
complaint, as well as documents filed in other courts and other public records. See Glob. Network Commc'ns, Inc. v.
City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006). Accordingly, this Court has considered the SDHR and EEOC
determinations as referenced in Duplan’s second amended complaint and attached in the City’s brief. See Macer v.
Bertucci’s Corp., No. 13-CV-2994 (JFB) (ARL), 2013 WL 6235607, at *1 n.1 (E.D.N.Y. Dec. 3, 2013) (“[I]n
deciding motions to dismiss in discrimination actions, courts regularly take notice of [SDHR] filings and
determinations relating to a plaintiff’s claims.”).
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Moreover, any Title VII discrimination claims brought by Duplan before December 27,
2013 – 300 days before his October 23, 2014 administrative filing to the EEOC – are dismissed
as time-barred. Although a number of Duplan’s factual allegations lack specific dates, to the
extent that the following claims occurred before December 27, 2013, they are dismissed as timebarred: (1) the failure to promote Duplan to “Director of Administration” in “late 2013,” (see
Second Am. Compl. at ¶ 18(c)); (2) the related allegation that the individual who filled the
Director of Administration position in 2013 “alienated, humiliated, and isolated” Duplan, (see id.
at ¶ 18(d)); (3) the failure to promote Duplan to various managerial positions “since August
2011,” (see id. at ¶ 18(g)); and (4) the failure to give Duplan a merit salary increase on an
unknown date in or about late 2013 to late 2014, (see id. at ¶ 18(e)). (See also Def.’s Ex. D
(Doc. No. 24-4); Def.’s Ex. E (Doc. No. 24-5).)
b. Retaliation Under Title VII
Duplan centers most of his complaint on claims of retaliation, asserting that alleged
adverse employment actions taken against him after his 2011 complaints were motivated by
discriminatory animus. For Duplan’s retaliation claims to survive a motion to dismiss, Duplan
must plausibly allege: “(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.” Littlejohn v. City of New York, 795 F.3d
297, 311 (2d Cir. 2015) (internal citation and quotation marks omitted). While the second
amended complaint fails to allege that anyone with knowledge of Duplan’s protected activity
retaliated against him, even assuming that Duplan demonstrates the first two elements of the
prima facie case of retaliation, Duplan fails to plausibly allege a sufficient causal connection for
the alleged retaliatory actions that occurred before he filed his October 2014 EEOC charge and
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fails to plausibly allege an adverse employment action for the alleged retaliatory actions that
occurred after he filed his October 2014 EEOC charge.
i. Causal Connection
To plead causation for a retaliation claim, “the plaintiff must plausibly allege that the
retaliation was a ‘but-for’ cause of the employer’s adverse action.” Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015); accord Univ. of Texas Sw. Med. Ctr. v. Nassar,
123 S. Ct. 2517, 2527 (2013). A plaintiff can demonstrate a causal connection indirectly by
demonstrating a “very close” temporal proximity between the alleged adverse employment
actions and the plaintiff’s protected activity, or directly by evidence of retaliatory animus against
the plaintiff. Vega, 801 F.3d at 90; accord Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001); see Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d Cir. 2007) (holding that an
almost one-year gap “undermin[es] any causal nexus based on temporal proximity); see also
Woodworth v. Shinseki, 447 F. App’x 255, 258 (2d Cir. 2011) (fifteen-month gap); Yarde v.
Good Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005) (six-month gap).
Here, the more than two-year gap between Duplan’s protected activity in July 26, 2011
and the alleged retaliatory actions in 2013–14 undermines any causal nexus based on temporal
proximity. (See Second Am. Compl. at 18; Pl.’s Opp’n at 19–28.)5 Likewise, Duplan fails to
plausibly allege any evidence that gives rise to an inference of retaliatory motive sufficient to
demonstrate a causal connection. See also Vega, 801 F.3d at 90–91 (“It is not enough that
retaliation was a ‘substantial’ or motivating factor in the employer’s decision. . . . [But-for
causation requires] that the adverse action would not have occurred in the absence of the
retaliatory motive.” (internal citation omitted)); accord Littlejohn, 795 F.3d at 319.
5
For ease of reference, citations to Court documents utilize the Electronic Case Filing System (“ECF”) pagination.
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For example, Duplan alleges that the Bureau’s investigation of a sexual harassment
complaint filed against him by another Bureau employee was retaliatory. (See Second Am.
Compl. at ¶ 18(f).) However, Duplan fails to identify any plausible retaliatory motive in
connection with that investigation. In fact, Duplan does not allege that the employee who filed a
sexual harassment claim against him was or is aware of Duplan’s internal or external complaints.
(See generally id.) Moreover, Duplan’s own statement that his supervisor in 2014, John Rojas,
was given information about Duplan “on a need to know basis” belies any evidence that Rojas
knew of Duplan’s protected activity and responded by failing to promote him or reinstate his job
responsibilities. (Id. at ¶ 18(d).) Duplan cannot simply rely on the conclusory statement that
“Defendant had retaliatory animus toward Plaintiff” in an attempt to establish but-for causation.
(See Pl.’s Opp’n at 28; Second Am. Compl.); see also Iqbal, 556 U.S. at 678 (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”).
Accordingly, Duplan’s conclusory allegation of retaliatory animus is not sufficient to
survive a motion to dismiss.
ii. Adverse Employment Action
With respect to Duplan’s remaining allegations that the City again retaliated against him
after he filed his October 2014 EEOC charge and complaint in this Court, those claims fail to
demonstrate an adverse employment action. An adverse employment action is one that would
dissuade a reasonable employee from engaging in a protected activity. Vega, 801 F.3d at 90; see
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“The antiretaliation
provision protects an individual not from all retaliation, but from retaliation that produces an
injury or harm.”). Examples of materially adverse actions “include termination of employment,
a demotion evidenced by a decrease in wage or salary . . . [or] significantly diminished material
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responsibilities . . . .” See Vega, F.3d at 85 (emphasis added). For diminished material
responsibilities to constitute an adverse employment action, a change in job responsibilities must
amount to an action “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” See Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); see also
Demoret v. Zegarelli, 361 F. Supp. 2d 193, 202–03 (S.D.N.Y. 2005), rev’d on other grounds,
451 F.3d 140 (2d Cir. 2006).
Here, neither the assignment of new responsibilities nor the cancellation of Duplan’s time
management access rises to the level of an adverse employment action. First, Duplan’s claim
that the assignment of new responsibilities in November 2014 and January 2015 constitutes
retaliation rests on the conclusory assertion that these assignments “were well below [Duplan’s]
civil service as well as his functional title.” (See Second Am. Compl. at ¶¶ 21, 23; see also Pl.’s
Opp’n at 29–30.) However, Duplan provides no factual allegations that plausibly demonstrate
that his new responsibilities were below his title. In fact, when Duplan made similar allegations
to the SDHR in 2014, the SDHR found that Duplan’s newly assigned responsibilities of
“facilities management,” “oversight,” and “fire warden” fall under the general duties of his civil
service title. (See Def.’s Ex. E at 5.) Accordingly, Duplan fails to plausibly allege that the
assignments of new responsibilities constitute adverse employment action. Thus, Duplan’s
claims of retaliation occurring after the filing of his October 2014 EEOC charge are dismissed.
Similarly, Duplan’s claim that an unknown City employee cancelled his access to the
time management system in September 2015, after he filed this action, fails to plausibly allege an
adverse employment action. (See Second Am. Compl. at ¶ 25.) Courts have recognized that the
mere alteration of job responsibilities – without evidence of diminished pay, benefits, or other
terms of employment – does not constitute an adverse employment action. Brown, 673 F.3d at
150; see Reckard v. Cty. of Westchester, 351 F. Supp. 2d 157, 161 (S.D.N.Y. 2004) (finding that
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failing to assign the plaintiff her desired job responsibilities did not constitute adverse
employment action because it did not affect her “pay, benefits or any other terms of her
employment”); Awad v. City of New York, No. 13-CV-5753 (BMC), 2014 WL 1814114, at *11
(E.D.N.Y. May 7, 2014) (finding no adverse employment action where plaintiff lost access to her
time management system).6 Therefore, the factual allegations in Duplan’s second amended
complaint do not give rise to an inference that losing access to the time management system –
without evidence of diminished pay or benefits – is more than a mere alteration of Duplan’s job
responsibilities. Accordingly, Duplan’s retaliation claim regarding his allegedly cancelled access
to the time management system is dismissed.
c. Hostile Work Environment
To state a hostile work environment claim, Duplan must plead facts that would tend to
show that the 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, in this case, Duplan’s race and national origin. Patane, 508
F.3d at 113; accord Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001); see Figueroa v.
Johnson, 648 F. App’x 130, 134–35 (2d Cir. 2016). In other words, plaintiff must show that “the
workplace is permeated with discriminatory intimidation, ridicule, and insult, [sic] that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
6 Duplan’s conclusory assertion that he was left with “little to do” after the City cancelled his access to the time
management system is belied by his own factual allegations. Duplan’s second amended complaint alleges that the
City gave him additional responsibilities in November 2014 and January 2015. (See Second Am. Compl. at ¶¶ 21,
23.) At best, Duplan’s allegation suggests that the City has continued to alter his job responsibilities in line with the
general duties that persons with his civil service title may be assigned. (See Def.’s Ex. E at 5.) As discussed, the
mere alteration of Duplan’s job responsibilities is not sufficient to state a claim of adverse employment action. See
Brown, 673 F.3d at 150.
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abusive working environment.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.
2010) (emphasis added) (internal quotation marks and citation omitted).
To the extent that Duplan alleges a retaliatory hostile work environment, Duplan has not
made out a prima facie case. As noted above, Duplan has failed to plausibly allege that the acts
taken against him were in retaliation for any protected activity. Moreover, the actions
complained of are hardly give rise to the type of severe course of conduct actionable as a hostile
work environment, including his conclusory allegations that he was “alienated, humiliated, and
isolated.” (Comp. ¶ 18.) Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011). To the extent
that Duplan asserts a hostile work environment based on Rajpersaud’s remarks in 2011, this
claim fails as well. The Second Circuit has held that “a few isolated incidents” of racial epithets
do not constitute a hostile work environment; “there must be a steady barrage of opprobrious
racial comments.” Schwapp v. Town of Avon, 118 F.3d 106, 110–11 (2d Cir. 1997) (internal
citations and quotation marks omitted); accord Dorrilus v. St. Rose’s Home, 234 F. Supp. 2d
326, 335 (S.D.N.Y. 2002) (“Casual comments . . . will not trigger []relief pursuant to [Title
VII].” (internal quotation marks omitted)); Suarez v. N.Y. City Dep’t of Human Res. Admin., No.
09-CV-8417 (WHP), 2011 WL 1405041, at *4 (S.D.N.Y. Mar. 24, 2011) (supervisor’s reference
to plaintiff as “fat ass” and “Puerto Rican wet back” were “stray remarks” that did not amount to
a hostile work environment); Pagan v. N.Y. State Div. of Parole, No. 98-CV-5840 (FM), 2003
WL 22723013, at *6 (S.D.N.Y. Nov. 18, 2003) (“Even if [defendant] called [plaintiff] a ‘fat
Puerto Rican’ twice rather than once, the series of [four] disparaging remarks attributed to him
clearly does not amount to the sort of ‘extremely serious’ behavior required to give rise to a
hostile work environment under Title VII.”). Thus, by any measure, Duplan has failed to
plausibly allege that his workplace was “permeated with [retaliatory] intimidation, ridicule, and
14
insult” objectively severe or pervasive enough to alter the conditions of his employment. See
Gorzynski, 596 F.3d at 102.
CONCLUSION
For the reasons set forth above, the City’s motion to dismiss (Doc. No. 22) is granted.
The Clerk of Court is respectfully directed to enter judgment accordingly and close this case.
SO ORDERED.
Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge
Dated: Brooklyn, New York
March 30, 2017
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