Rojas v. Port Authority of New York and New Jersey

Filing 16

MEMORANDUM & ORDER re 10 Motion to Dismiss. For the reasons stated above, Defendant's Motion to Dismiss is GRANTED. The Amended Complaint is hereby DISMISSED. So Ordered by Judge Nicholas G. Garaufis on 10/7/2016. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT

Vlf

EASTERN DIS-rtUCT OF NEW YORK
-X

CARLOS ROJAS,
Plaintiff,
MEMORANDUM & ORDER

-against15-CV-6185(NGG)
(PK)
PORT AUTHORITY OF NEW YORK AND NEW

JERSEY,
Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Carlos Rojas, who is represented by counsel, brings this action against
Defendant Port Authority ofNew York and New Jersey seeking damages for allegedly

discriminatory employment practices. (See Am. Compl.(Dkt. 7).) Before the court is
Defendant's Motion to Dismiss the Amended Complaint. (Mot. to Dismiss(Dkt. 10).) For the
reasons stated below,the Motion is GRANTED.
I.

BACKGROUND

A. Plaintiffs Allegations

The following facts are taken from the Amended Complaint. "[P]laintiffis a Hispanic
male, who was bom in Ecuador, and who is a naturalized citizen ofthe United States." (Am.
Compl. 9.) Plaintiff has been "continuously employed" by Defendant"as a Police Officer

since February 5,2001." (Id. 17.) "During [PJlaintiffs career,[PJlaintiff has filed for various
assignments and promotions,including seeking promotion to the positions ofPolice Sergeant,
Canine(K-9) Officer, and Detective," but Plaintiff has "continuously throughout his career been
denied said promotions and assignments, although [PJlaintiffs qualifications and record [are]
equal to and in many if not most instances better than those who have been appointed." (Id.
1

10-11.) "Plaintiff alleges that a primary consideration in promotions and assignments made
by [Defendant] is race," and that, in particular. Defendant "discriminate[s] against those who are
Hispanic and/or bom in another coimtry." (Id. ^ 12.)

The Amended Complaint notes several instances where Plaintiff did not receive a
promotion that was awarded to one or more other officers. Plaintiff applied to be a K-9 Officer
in January 2008, but the position was ultimately given to a"non minority officer,junior and less

qualified than [Pjlaintiff." (Id. H 38.) Plaintiff also applied to be a K-9 Officer and/or a
Detective at two other unspecified "times between 2011 and 2014." (Id.) In addition, Plaintiff

applied for a Sergeant position in 2010 and was placed on the "horizontal roster" of candidates
eligible for promotion. (Id.^ 14-16.) Groups of officers were promoted to the Sergeant position
in September 2011 (id. ^ 23), January 2013(id ^ 24), January 2014(id ^ 29-31), Febmary 2014
(id

32-33), April 2014(id ^ 34), and August 2014(id ^ 35). Plaintiff alleges that

Defendant's promotion decisions were "motivated by race and place of national origin." (Id
^ 39.) Plaintiff alleges that Defendant's promotion practices, in general, were "tainted by
cronyism" and "nepotism," and that these practices "negatively impact minority members ofthe
[Port Authority Police Department("the Department")]." (Id 36.)
The Amended Complaint also includes allegations of discriminatory actions and events
unrelated to promotions. These allegations are undated. Plaintiff alleges that "from the
beginning of his career and up to date," he "has found obstacles to his ability to succeed at the
Port Authority Police Department." (Id K 41.) Plaintiff"has been labeled with derogatory
terms,found beans inside his work shoes,"found "notes glued to the front of his locker referring
to him as 'spic' and 'wet bag'[sic]," and leamed ofofficers mocking his accent "over the Port

Authority police radio." (Id.) Plaintiff"approached a high level supervisor with his concerns,"

but he was "confronted with more derogatory comments from that supervisor," who made
statements to the effect that "'individuals like you should not be working for this police

department.... We take care of our own kind. Mark my words; you will never advance at this
police department and stop complaining against those who work with you because you will go
down.'" (Id.) The Amended Complaint makes further reference to a formal complaint(the

"Internal Complaint")submitted by Plaintiff to "the highest authority at the command," a

subsequent "transfer to another work location" at Plaintiffs request, and "retaliatory actions,
such as being assigned to undesirable work areas and posts, social ostracism, public ridicule and
[an] unjust disciplinary charge filed against him to eliminate him from consideration from the
promotional process." (Id.

43-45.)

B. Procedural History

On October 10,2014,^ Plaintifffiled a Charge of Discrimination (the "Charge") with the
Equal Employment Opportunity Commission (the "EEOC"), alleging discrimination on the basis
ofrace, national origin, and retaliation. (Denalli Aff. in Supp. of Mot. to Dismiss ("Denalli

Aff.")(Dkt. 11)Ex. B at 1.)^ The Charge contained factual allegations substantially similar to
the Amended Complaint. On July 31,2015,the EEOC issued a Dismissal and Notice of Rights
informing Plaintiff that the EEOC would not be pursuing Plaintiffs complaints, and that Plaintiff
had 90 days in which to commence a private lawsuit, if so desired. (Compl.(Dkt. 1) at 13-14.)
Plaintiff initiated this action on October 28,2015 fSee generallv idX which was within

the 90-day period specified in the Dismissal and Notice of Rights. Plaintifffiled the Amended

'
Plaintiff asserts that the Charge was filed on October 3,2014. (Am. Compl.^ 58.) The court relies instead on
October 10,2014,the date the Charge was received by the EEOC,for the reasons discussed below in Section
n.C.l.b.

^ Plaintiff did not submit to the court a copy ofthe Charge. Defendant, however, attached a copy in support of its
Motion to Dismiss. (See Denalli Aff. Ex. B.) The court finds it necessary and appropriate to rely on this submission
for the reasons discussed below in Section II.A.2.

Complaint on April 7,2016,invoking the court's jurisdiction under the Fourth and Fourteenth
Amendments to the United States Constitution, Titles VI and VII ofthe Civil Rights Act of 1964,

42 U.S.C. § 1983,42 U.S.C. § 1985,42 U.S.C. § 1986, and 28 U.S.C. §§ 1900 etseq. (Am.

Compl. 1.) On May 25,2016, Defendant served Plaintiff with a motion to dismiss all claims
for failure to state a claim upon which relief can be granted under Federal Rule of Civil

Procedure 12(b)(6).^
n.

DISCUSSION

A. Defects in the Pleadings

The court notes with disapproval several omissions in Plaintiffs pleadings. Procedurally,
the court is unable to resolve Defendant's Motion without filling in certain gaps. First,

Plaintiffs legal claims are insuffciently precise. The court responds by inferring causes of
action from the Amended Complaint, seeking appropriate legal vehicles for Plaintiffs factual
allegations. Second,Plaintifffailed to attach or describe with specificity certain documents that
underlie Plaintiffs (inferred) causes of action. Defendant helpfully attached those documents to
its filings. In this section, the court outlines the legal basis for relying on Defendant's
submissions in considering a motion to dismiss.

^ Defendant also moves for dismissal under Rule 12(b)(1)for lack ofsubject matter jurisdiction. Defendant's sole
argument under Rule 12(b)(1), however, is that Plaintiffs Title VII claims are untimely based on the date that
Plaintiff filed the Charge with the EEOC. (Def.'s Mem. in Supp. of Mot. to Dismiss(Dkt. 12) at 4-7.) Defendant
contends that untimeliness "deprives a federal court ofsubject matter jurisdiction and requires the court to dismiss
the suit." (Id, at 4.) This is an inaccurate statement ofthe law. "[Fjiling a timely charge ofdiscrimination with the
EEOC is not ajurisdictional prerequisite to suit in federal court, but a requirement that... is subject to waiver,
estoppel, and equitable tolling." Fowlkes v. Ironworkers Local 40. 790 F.3d 378,385(2d Cir. 2015)(quoting Zipes
V. Trans World Airlines. Inc.. 455 U.S. 385,393(1982)). The court will thus construe Defendant's motion as
seeking dismissal solely under Rule 12(b)(6)for failure to state a claim upon which relief can be granted, asserting
grounds of both untimeliness and insufficiency ofthe pleadings.

1. Identifying Implied Causes of Action

The Amended Complaint does not enumerate any causes of action. After proceeding
through the factual allegations, the heading"AS FOR PLAINTIFF'S FEDERAL CLAIM"
introduces the following statements: first, that Plaintiff is "constitutionally entitled to due process

and equal protection"; second, that Defendant's actions "were premised all or in part" upon
Plaintiffs "race, ethnicity and religion"(introducing the element ofreligion for the first time, but
failing to mention the element of national origin, a central feature in the factual allegations); and
third, that Defendant "violated [Plaintiffs] rights under the US Constitution and the Civil Rights
Act ofthe United States. Plaintiff has been therefore damaged." (Id.

61-62.) Plaintiff offers

no further specification as to the specific rights that were allegedly violated, the specific causes
of action he seeks to assert, or the legal standard by which his claims should be assessed. Even
so, this language procedurally approximates the required "short and plain statement ofthe claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a).

The Supreme Court has cautioned against allowing potentially meritorious complaints to
founder on the shoals ofshoddy legal drafting. The "[f]ederal pleading rules...do not

countenance dismissal ofa complaint for imperfect statement ofthe legal theory supporting the
claim asserted." Johnson v. Citv of Shelby. Miss.,

U.S.

135 S. Ct 346,346(2014); see

also 5 Charles Alan Wright et al.. Federal Practice and Procedure § 1219(2016 ed.)("The
federal rules effectively abolish the restrictive theory ofthe pleadings doctrine, making it clear
that it is unnecessary to set out a legal theory for the plaintiffs claim for relief."(footnotes
omitted)). For example,"[a] failure to specify 42 U.S.C. § 1983 as the vehicle for pleading a

constitutional claim is not a defect warranting dismissal" as long as "plaintiffs have 'informed
[the defendant] of the factual basis for their complaint.'" Smith v. Campbell. 782 F.3d 93,99
(2d Cir. 2015)(quoting Johnson. 135 S. Ct. at 347)).

In an effort to bring legal substance and specificity to the Amended Complaint,the court
looks to Plaintiffs assertion offederal question jurisdiction, which cites the Fourth and
Fourteenth Amendments to the United States Constitution, Titles VI and VII ofthe Civil Rights

Act of 1964(cited twice, ostensibly for emphasis),42 U.S.C. § 1983 (cited by name and also as

"the Civil Rights Act of 1871," ostensibly for historical accuracy),42 U.S.C. § 1985, and 42

U.S.C. § 1986."^ (See Am.Compl. I.) For each ofthese provisions, the court will consider
whether Plaintiffs factual allegations plausibly suggest an available cause of action.
2. Consideration of Defendant's Submissions

On the facts, as well, the court seeks to shore up the Amended Complaint. Plaintiff

makes several allegations without specifying names, places, or dates; these allegations thus float

unmoored in space and time. (See Am. Compl.

38-45.) Plaintiff also failed to submit copies

ofkey documents referenced in the Amended Complaint. Notably, though Plaintiff submitted a
copy ofthe EEOC's Dismissal and Notice of Rights(see Compl. at 13-14),Plaintifffailed to
include a copy ofthe Charge, the document that underlies all ofPlaintiffs (inferred) Title VII
claims in this action. Plaintiff also failed to attach the Internal Complaint, or even to specify the

year in which it was written. (See Am. Compl. T[ 43.) This complaint, however, speaks to a
material element ofPlaintiffs retaliation claim, as discussed below in Section II.C.3.

Defendant submitted copies of both missing documents in support of its Motion to
Dismiss. (See Denalli Aff. Ex.B (the Charge), Ex. G at 15 (the Internal Complaint).) As a

general rule, courts "do not consider matters outside the pleadings in deciding a motion to
dismiss for failure to state a claim." Nakahata v. New York-Presbvterian Healthcare Svs., Inc.,

The jurisdictional statement is one instance where the Amended Complaint included more detail than was perhaps
necessary. In addition to the duplicate citations discussed in the text, Plaintiff cites 28 U.S.C. §§ 1900 et seq.. a set
ofprovisions that establish "fees and costs" in the federal judiciary. The court is unable to discern an ostensible
purpose for this citation with regard to either jurisdiction or potential causes of action.

723 F.Sd 192,202(2d Cir. 2013). "Rather, where matter outside the pleadings is offered and not
excluded by the trial court, the motion to dismiss should be converted to a motion for summary
judgment." Id at 202-03 (citing Fed. R. Civ. P. 12(d)). "[I]n some cases," however,"a
document not expressly incorporated by reference in the complaint is nevertheless 'integral' to

the complaint and, accordingly, a fair object of consideration on a motion to dismiss. A
document is integral to the complaint'where the complaint rehes heavily upon its terms and
effect.'" Goel v. Bunge. Ltd., 820 F.3d 554, 559(2d Cir. 2016)fquoting Chambers v. Time
Wamen Inc.. 282 F.3d 147,153(2d Cir. 2002)).

The court finds that the Charge and the Internal Complaint are integral to the pleadings

because Plaintiff explicitly references both in the Amended Complaint, and because Plaintiffs
causes of action under Title Vll "rel[y] heavily upon [the] terms and effect" in one or both
documents. Goel. 820 F.3d at 559; see also Global Network Commc'ns. Inc. v. Citv ofNew

York.458 F.3d 150, 157(2d Cir. 2006)(noting the permissibility of considering "legal
document[s] containing obligations upon which the plaintiffs complaint stands or falls").
B. Legal Standard for a Motion to Dismiss

"On a motion to dismiss, all factual allegations in the complaint are accepted as true and
all inferences are drawn in the plaintiffs favor." Littleiohn v. Citv ofNew York. 795 F.3d 297,

306(2d Cir. 2015)(citation omitted). The Supreme Court cautions, however,that this leniency
is "inapplicable to legal conclusions" or "[tjhreadbare recitals ofthe elements of a cause of

action, supported by mere conclusory statements." Ashcroft v. Iqbal. 556 U.S. 662,678(2009).
To defeat a Rule 12(b)(6) challenge,"a complaint must plead specific facts sufficient to support

a plausible inference that the defendant is liable for the misconduct alleged. While 'the
plausibility standard is not akin to a probability requirement, it asks for more than a sheer

possibility that a defendant has acted unlawfully.'" Doe v. Columbia Univ.. No. 15-1536,2016

WL 4056034, at *6(2d Cir. July 29,2016)(internal citations and alterations omitted)(quoting
Iqbal. 556 U.S. at 678).

Additional considerations apply in the context ofemployment discrimination claims.
"Ultimately, the plaintiff will be required to prove that the employer-defendant acted with
discriminatory motivation. However,in the first phase ofthe case, the prima facie requirements
are relaxed." Little]ohn. 795 F.3d at 306(analyzing a line of Supreme Court precedent jfrom
McDonnell Douglas Corp. v. Green. 411 U.S. 792(1973), to Iqbal, 556 U.S. 662). "[A]t the

pleadings stage ...,a plaintiff has a * minimal burden' of alleging facts 'suggesting an inference
of discriminatory motivation.'" Vega v. Hempstead Union Free Sch. Dist.. 801 F.3d 72, 84

(2d Cir. 2015)(quoting Little]ohn. 795 F.3d at 310). In sum,the allegations in the complaint
"need not give plausible support to the ultimate question of whether the adverse employment
action was attributable to discrimination. They need only give plausible support to a minimal
inference of discriminatory motivation." Little]ohn,795 F.3d at 311. This burden-shifting

framework applies to Plaintiffs claims ofemployment discrimination under both Title VII and
Section 1983. Id at 312(citing Ruiz v. Cntv. ofRockland,609 F.3d 486,491 (2d Cir. 2010)).

C. Employment Discrimination Claims Under Title VII and Section 1983
Title VII prohibits employment discrimination based on race, color, religion, sex or
national origin. S^42 U.S.C. § 2000e-2. The Amended Complaint could be read as implicitly
asserting Title VII claims under theories of(1)disparate treatment,(2)retaliation, and (3)hostile
work environment. Plaintiff is able to assert substantially equivalent claims under 42 U.S.C.

§ 1983, which protects against the violation offederal rights by persons acting under color of
state law. The court therefore considers the two statutes together.
Defendant moves to dismiss Plaintiffs Title VII claims on grounds of untimeliness and

failure to state a claim. (Def.'s Mem.in Supp. of Mot. to Dismiss ("Def.'s Mem.")(Dkt. 12)
8

at 4-7.) Defendant moves to dismiss Plaintiffs Section 1983 claims for failure to identify a
relevant federal right and,in the alternative, on grounds of untimeliness. (Id at 8; see also Def.'s
Reply(Dkt. 14) at 2-3.)

The court begins by defining the similarities and differences between employment
discrimination actions under Section 1983 and Title VII. The court then considers each of

Plaintiffs three causes of action to see whether the Amended Complaint states any timely

allegations, and if so, whether those allegations are sufficient to state a claim. Finding no viable
allegations, the court dismisses Plaintiffs claims under both Title VII and Section 1983.
1. Section 1983*s Annlicabilitv to Emnlovment Discrimination

"Section 1983 itself creates no substantive rights; it provides only a procedure for redress

for the deprivation ofrights established elsewhere. To prevail on a Section 1983 claim, a
plaintiff must establish that a person acting under color of state law deprived him ofa federal
right." Thomas v. Roach. 165 F.3d 137,142(2d Cir. 1999)(citations omitted). Defendant does
not dispute that, as a bi-state entity, it operates "under color of state law." Rather, Defendant
urges dismissal ofPlaintiffs Section 1983 claims on the grounds that the Amended Complaint
"contains no statement regarding the applicability of42 U.S.C. § 1983." (Def.'s Reply at 3.) As

explained above in Section II.A.1, however,"[a] failure to specify 42 U.S.C. § 1983 as the
vehicle for pleading a constitutional claim is not a defect warranting dismissal, at least in the
absence ofsome prejudice to the defendant." Smith. 782 F.3d at 99(citing Johnson. 135 S. Ct.
at 347)). When "plaintiffs have 'informed [the defendant] ofthe factual basis for their

complaint, they [are] required to do no more to stave offthreshold dismissal for want of an
adequate statement oftheir claim.'" Id.(alterations in original)(citing Johnson. 135 S. Ct.
at 347)).

Plaintiffs statement ofthe grounds for federal jurisdiction lists two constitutional

provisions that are potentially actionable through Section 1983: the Fourth and Fourteenth
Amendments. The Fourth Amendment is unequivocally irrelevant to this action because

Plaintiff has cited no facts that pertain in any way to "unreasonable searches and seizures."
U.S. Const, amend. IV. Plaintiff's Section 1983 action is therefore dismissed as to the Fourth

Amendment for failure to state a claim upon which relief can be granted.
Under the Equal Protection Clause of the Fourteenth Amendment,Plaintiff may use

Section 1983 to bring claims that largely "parallel^ his Title VII claim[s]" as long as the adverse
actions at issue were taken "under color of state law." Vega. 801 F.3d at 88 (internal quotation

marks and citations omitted)(discussing claims for disparate treatment); see also id. at 91

("[T]he elements of a retaliation claim based on an equal protection violation under § 1983
mirror those under Title VII."); Littleiohn. 795 F.3d at 320(finding that hostile work

environment claims imder Section 1983 use the same legal standard as under Title VII).^
The following sections explain two differences between employment discrimination
actions under Section 1983 and Title VII that are relevant to this action: an additional element for

Section 1983 claims, and the calculation oftimeliness under each statute.^
a. The "Custom or Policy"Requirementfor Section 1983
The first difference is that Section 1983 claims have an additional element when

plaintiffs bring action against certain types of public entities. A "section 1983 claim against the
Port Authority" must be dismissed if"there [is] no showing that the injury was caused by

^ Because these Section 1983 claims parallel Plaintiffs claims under Title VII, Defendant is imable to claim
prejudice or lack of notice under Smith v. Campbell. 782 F.Sd 93,99(2d Cir. 2015).
® One additional point of difference is that"a § 1983 claim, unlike a Title VII claim, can be brought against an
individual." Vega v. Hempstead Union Free Sch. Dist.. 801 F.3d 72,88(2d Cir. 2015). This distinction is

immaterial to the present action because Plaintiff has not named any individuals as defendants.
10

execution ofa custom or policy ofthe Port Authority." Ravsor v. Port Auth. ofN.Y. & N.J.. 768
F.2d 34, 38(2d Cir. 1985)(emphasis added)(citing Monell v. Den't of Soc. Servs.. 436
U.S. 658,691-95 (1978)). This required showing applies over and above the requirements of a
standard Title VII claim.

b. Calculating "Timeliness" Under Section 1983 and Title VII
The second difference between claims under Section 1983 and Title VII is the calculation

ofthe timeliness for a private action. "Section 1983 actions in New York are subject to a three-

year statute of limitations, running from the time a plaintiff knows or has reason to know ofthe
injury giving rise to the claim." Milan v. Wertheimer. 808 F.3d 961,963(2d Cir. 2015)(internal
citations and quotation marks omitted). Because Plaintiff initiated this action on
October 28, 2015,the statute of limitations bars Section 1983 claims for any actions occurring
prior to October 28,2012.

Under Title VII, a private action only becomes available after an individual exhausts
administrative remedies with the EEOC.

42 U.S.C. § 2000e-5(b). The statute also imposes

a time limitation:"A claim must generally be filed within 180 days after the alleged
discriminatory practice," but that window is extended to 300 days if"the practice occurs in a
State that has laws" and administrative enforcement mechanisms that target "the [same] sort of

discrimination plaintiff alleges." Dezaio v. Port Auth. ofN.Y.& N.J.. 205 F.3d 62,64
(2d Cir. 2000); see also 42 U.S.C. § 2000e-5(e)(l). Ifthe EEOC declines to pursue the claim, the
individual has the right to bring a private action based on the same allegations, but only ifthe
action is initiated within 90 days ofreceiving the EEOC's Dismissal and Notice of Rights. Id.
§ 2000e-5(f)(l).

In this action. Plaintiff satisfied the exhaustion requirement by filing the Charge with the
EEOC,and timely filed this action within 90 days ofreceiving the EEOC's Dismissal and Notice
11

of Rights.

supra Section LB. Defendant asserts, however, that the alleged discriminatory

conduct all occurred outside the permissible time window for the Charge, and that Plaintiffs
claim should thus be dismissed as time-barred. (Def.'s Mem. at 4-7.)

The court must determine the appropriate time period within which to examine Plaintiffs
allegations of discrimination. The parties disagree on two issues. First, the parties dispute which
ofthe two time windows should apply. rCompare PL's Resp. in Opp'n to Mot. to Dismiss("PL's

Resp.")(Dkt. 13)at 3(relying on the 300-day window) with Denalli Aff. at 4-5 (arguing in favor
ofthe 180-day window).) The Second Circuit has clearly stated, however,that "the 180-day

limitation period applies in the case of an employee ofthe Port Authority." Dezaio, 205 F.3d at
65. The second point of disagreement concems the Charge filing date, the starting point for
calculating the window. Defendant uses October 10,2014,the date the EEOC received the
Charge, (See, e.g., Denalli Aff. at 2.) Plaintiff cites primarily to October 3,2014,the date the
Charge was sent, though Plaintiff also cites the October 10 date in one instance. (See Am.
Compl K 58; PL's Resp. at 2. But see id at 3("[T]he EEOC filing took place on
October 10, 2014").) Defendant is correct that "charges are timely filed if received bv the
FEEOCI within 180 days from the date ofthe alleged violation." 29 C.F.R. § 1601.13(a)(1)
(emphasis added).

The court finds that October 10,2014,is the appropriate date firom which to calculate
the 180-day window for Plaintiffs Charge. The Title VII time window thus begins on
April 13, 2014.

c. The Court's Approachfor Assessing Plaintiff's Claims Under Title VII
and Section 1983

The Amended Complaint could be read to assert Title VII and Section 1983 claims imder

theories of(1) disparate treatment,(2)retaliation, and(3)hostile work environment. In
12

considering each theory, the court will determine whether Plaintiff has pleaded any relevant facts
that fall within the three-year statute of limitations for Section 1983 or the 180-day time window
for Title VIL If so,the court will consider whether Plaintiffs allegations are sufficient to state a
claim under Title VII. If so, the court will then consider whether, under Section 1983,Plaintiff

has successfully shown that Defendant's discriminatory actions were taken pursuant to a"custom
or policy" under Monell.
2. Plaintiffs Claim of Disparate Treatment

Looking solely at the allegations that fall within the permitted time periods for
Section 1983 and Title VII, the court finds that the Amended Complaint fails to state a claim of

disparate treatment. Plaintiffs disparate treatment claims must therefore be dismissed.
a. Legal Standard

"[T]o defeat a motion to dismiss ...in a Title VII discrimination case, a plaintiff must

plausibly allege that(1)the employer took adverse action against him, and(2)his race, color,
religion, sex, or national origin was a motivating factor in the employment decision." Vega. 801
F.3d at 87. A failure to promote can constitute an adverse employment action. See, e.g.. Mauro
V. S. New England Telecomms.. Inc.. 208 F.3d 384,386(2d Cir. 2000). Therefore, the court
must determine whether Plaintiff has met his burden of"showing circumstances giving rise to an
inference of discrimination." Vega. 801 F.3d at 87.

Even the "relaxed" pleading requirements for employment discrimination cases require a
minimal factual basis suggestive of discrimination. At the very least. Plaintiff must allege that
he was qualified for the position he sought,that he did not receive the position, and that the

position either remained open or was filled by an individual who does not belong to the protected
class.

Mauro. 208 F.3d at 386(A plaintiff alleging discriminatory failure to promote can

survive a motion to dismiss by showing that"(1)he is a member of a protected class;(2)he
13

applied for promotion to a position for which he was qualified;(3)he was rejected for the
position; and(4)the employer kept the position open and continued to seek applicants.");

Littleiohn. 795 F.3d at 313 n. 11 (If a plaintiff alleges discriminatory termination,"the mere fact
that [the] plaintiff was replaced by someone outside the protected class will suffice for the

required inference of discrimination."(quoting Zimmermann v. Assocs. First Capital Corp.,251
F.3d376,380(2d Cir. 2001)).
b. Application

The Amended Complaint describes multiple instances in which Plaintiff was not chosen
for promotion. These instances span a period oftime firom January 2008 to August 2014. The
court begins by identifying which ofthese allegations are timely. For the purposes ofan EEOC
Charge, an "unlawful employment practice" in a seniority system "occurs," at the latest,"when a
person aggrieved is injured by the application ofthe seniority system or provision ofthe system."
42 U.S.C. § 2000e-5(e)(2). In this case, the date ofinjury is the date when a desired promotion
was issued to someone other than Plaintiff. Applying that framework,the three-year statute of
limitations for Plaintiffs Section 1983 claim includes five instances of denied promotions(from

January 2013 to August 2014),and the time window for Plaintiffs Title VII claim includes one
denied promotion(August 15, 2014).

Having found that Plaintiff has at least one timely allegation of disparate treatment under
each statute, the court turns to the sufficiency ofthe pleadings. The court finds that none of

Plaintiffs timely allegations are sufficiently specific to establish a presumption of discriminatory
intent under Littleiohn. The Amended Complaint merely "tenders 'naked assertion[s]' devoid of
'further factual enhancement,'" which are insufficient to save a claim from dismissal. Iqbal, 556

U.S. at 678 (quoting Bell Atl. Com, v. Twomblv. 550 U.S. 544(2007)).

14

The August 2014 promotion is illustrative. Plaintiff states that he "was not listed for
promotion" on August 15, 2014, but he makes no specific allegations regarding the race, national
origin, or qualiJhcations ofthe officers who^receive promotions. fSee Am. Compl.fl 35-37.)
Plaintiff states only that the "list of officers promoted...reflected the continuing discriminatory
practices ofthe agency that are tainted by cronyism [and] nepotism[,] and that negatively impact
minority members ofthe [Department]." (Id ^ 36.) Plaintiffs allegations are similarly

conclusory with regard to all the other denied promotions stretching back to January 2013.^
These allegations closely resemble the factual claims rejected by the Iqbal Court. In that
case, the plaintiff alleged that the government defendants subjected him to "harsh conditions of
confinement as a matter of policy, solelv on account of his religion, race, and/or national origin
and for no legitimate penological interest." Iqbal. 556 U.S. at 680(emphasis added)(internal
alterations, quotation marks, and citations omitted). Similarly, Plaintiffs allegations in this
action are "no more than conclusions," and are thus "not entitled to the assumption oftruth" that
attaches to well-pleaded factual allegations. Id at 679.
By way of contrast. Plaintiffs allegations of discriminatory K-9 Officer promotions

in 2008 contained additional material details. Plaintiff alleged that he "was the only non natural
citizen participating for the canine detail," but that"a non minority officer,junior and less

' Am. Compl. 24(January 2013:"[U]pon information and belie]^" the thirteen promotions "had a
disproportionate effect on minorities."), 30(January 2014:"Upon information and belief," the 27 promotions "again
reflected the nepotism, cronyism and discriminatory practices ofthe agency that negatively impacted on minority
employees."), 32-33 (Februaiy 2014: The promotions were "tainted by [Defendant's] continued discriminatory
practices," which "impacted negatively on minority employees."), 34(April 2014:"[U]pon information and belief,"
the eight promotions "reflected [Defendant's] discriminatoiy practices.").
Plaintiff also alleges two instances "between 2011 and 2014" when he was denied promotions for K-9
Officer and/or Detective. (Id Tf 38.) The absence ofspecific dates leaves the court unable to determine whether
those instances before or after the October 2012 cut-off date for Section 1983 or the August 2014 cut-off date for

Title VII. Regardless, consideration ofthese two promotions would not alter the court's conclusion. As with the
allegations cited above, Plaintiff offers only the conclusory statement that Defendant's promotion decisions "were
motivated by race and place ofnational origin." (Am. Compl. 39.)
15

qualified than the plaintiff, obtained the canine position." (Am. Compl. H 38.) Ifthese
allegations were not time-barred, they may have been sufficient to create a presumption of
discrimination under Littleiohn. As it stands, however, a single well-pleaded allegation of

discrimination in 2008 does not establish a presumption of discrimination with regard to
promotion decisions that occurred four or more years later.

Plaintiffs disparate treatment claim cannot survive a motion to dismiss even with the
court taking as true the allegations that Defendant "failed to apply objective criteria in

evaluating" candidates and "failed to conduct the promotional process" in accordance with its
own policies. rSee Am. Compl.

17-18.) Such conduct by an employer may well be

frustrating for employees who strive for promotion based on merit. Standing alone, however,
those allegations fail to show "circumstances giving rise to an inference of discrimination" on the
basis ofrace or national origin. Vega. 801 F.3d at 87(emphasis added).
Because the court finds that Plaintiff has failed to state a claim under Title VII, the court

need not reach the additional required showing under Section 1983 that Defendant acted
pursuant to a "custom or policy" under Monell. Plaintiffs claims for disparate treatment under
Title VII and Section 1983 must be dismissed.

3. Plaintiffs Claim of Retaliation

The court finds that Plaintiff has failed to allege any relevant facts within the relevant

tune periods under Section 1983 or Title VII. Therefore, his retaliation claim must be dismissed
as untimely.
a. Legal Standard

"To establish a presumption ofretaliation at the initial stage of a Title VII litigation, a
plaintiff must present evidence that shows '(1) participation in a protected activity;(2)that the
defendant knew ofthe protected activity;(3)an adverse employment action; and(4)a causal
16

connection between the protected activity and the adverse employment action.'" Littleiohn, 795
F.3d at 315-16 rquotins Hicks v. Baines. 593 F.3d 159, 164(2d Cir. 2010)).
b. Application

Plaintiff alleges that he was harassed by his peers and a superior officer on the basis of

his race and national origin. (Am. Compl.K 41.) Plaintiff"thereafter submitted a time stamped
Port Authority form to the highest authority at the command stating his discrimination issues."
(Id. H 43.) Plaintiff"verbally and in written form complain[ed] to supervisory levels ofthe Port
Authority that he had suffered derogatory remarks, racial slurs and discriminatory treatment," but
alleges that "his complaints were ignored or [he] was subjected to retaliatory actions, such as
being assigned to undesirable work areas and posts, social ostracism, public ridicule and [an]

unjust disciplinary charge filed against him to eliminate him from consideration from the
promotional process." (Id. 144.)
Plaintiff does not specify when these events took place. The Internal Complaint

submitted by Defendant,^ however, contains harassment allegations that are virtually identical to
those in the Amended Complaint. (Compare Denalli Aff. Ex. G at 15 with Am.Compl. 1[ 41.)

The Internal Complaint thus appears to be the "time stamped Port Authority form" referenced in
the Amended Complaint. (See Am. Compl.f 43.) The Internal Complaint is dated
July 18,2002. (Denalli Aff. Ex. G at 15.) Defendant argues that "by [Plaintiffs] own
recounting," the harassment described in paragraph 41 ofthe Amended Complaint "occurred
between February 5,2001, when [Plaintiff became a Port Authority employee[,] and
July 18,2002," when he submitted the Intemal Complaint. (Denalli Aff. at 7(footnotes
omitted).)

® The court relies on this submission for the reasons articulated above in Section n.A.2.

17

The court is unable to accept Defendant's argument at face value, however, because
Plaintiffintroduces his allegations of harassment with the following statement: "[PJlaintiff, from
the beginning of his career and up to date, has found obstacles to his ability to succeed at the Port

Authority Police Department." (Am. Compl.^41 (emphasis added).) The Second Circuit
considered similar language in Vega v. Hempstead Union Free School District and found that,

though the complaint was"not precise in terms of dates," the plaintiffs allegations nonetheless
"seem[ed]to suggest an ongoing practice" ofemployment discriniination. 801 F.3d at 80. The
Vega court noted allegations about when certain actions "began"(with no end date specified),
and how, as ofthe filing ofthe complaint,the defendants were "still committing these acts" and
"continue to do so whenever they get a chance." Id. Vega is clearly distinguishable from the
present action, however,for three reasons.

First, the allegations in the Vega complaint did not also appear, nearly verbatim,in a
separate document created several years earlier. The Amended Complaint, meanwhile,
rearticulates the exact allegations of harassment listed in the Intemal Complaint, and says that
Plaintiff"thereafter submitted" the Intemal Complaint to Defendant. (Id 143(emphasis

added).) This phrasing suggests that the Amended Complaint is proceeding in chronological
order, with paragraph 41 laying out the harassment that Plaintiff suffered in 2001 and 2002, and
paragraph 43 explaining that he responded to the harassment by filing the Intemal Complaint.
Second,the complaint in Vega described the specific discriminatory practices that were

alleged to be ongoing, namely that the plaintiffs workload had increased because he was
assigned a disproportionate number of Spanish-speaking students. S^ 801 F.3d at 80. The

Vega complaint may not have been "precise in terms of dates," but it was precise in terms ofthe
specific misconduct that allegedly continued until the complaint was filed. In the present action.

18

Plaintiff states only that "from the beginning of his career and up to date,[he] has found
obstacles to his ability to succeed at the Port Authority Police Department." (Am. Compl.^41

(emphasis added).) This ambiguous pronouncement introduces a recitation of harassment that is
otherwise identical to the Internal Complaint. Given that context, it appears that Plaintiff
referenced the harassment"from the beginning of his career" merely as background for the
allegedly discriminatory promotion decisions, which continue "up to date."

Finally, the alleged discrimination in Vega began a mere three years before the plaintiff
filed a charge with the EEOC.

801 F.3d at 77. Vega complained to his employer on at least

two occasions in the intervening years, thereby evincing his ongoing displeasure with the way he
was being treated.

id. In the present action, by contrast,twelve years passed between

Plaintiffs Internal Complaint and the filing ofthe Charge. In addition. Plaintiff requested and
"received a transfer to another work location" after he submitted the Internal Complaint(Am.
Compl. H 43), meaning that he spent those years in a new environment with new coworkers.

Whereas Vega's repeated statements of displeasure suggest ongoing discriminatory practices.
Plaintiff does not allege specific facts that would suggest continued harassment.

For these reasons, the court finds that the harassment described in paragraph 41 ofthe

Amended Complaint occurred during the period from 2001 to 2002. The court now turns to the
allegations ofretaliatory actions that followed the Internal Complaint. (See Am.Compl.% 44.)
These, too, are imdated. To fall within the three-year statute oflimitations for Section 1983, at

least one retaliatory action would need to have occurred after October 28,2012. The court is

conscious of its obligation to draw all reasonable inferences in Plaintiffs favor.

Littleiohn.

795 F.3d at 306. The court finds it unreasonable to assume, without any factual basis, that the

19

alleged retaliation occurred in the fall of 2012, a full decade after Plaintifffiled the Internal
Complaint.

The court has already determined that the denied promotion of August 2014 is not

entitled to a presumption of discriminatory motivation. Plaintiff has failed to allege any other
retaliatory acts within the Section 1983 statute of limitations or the Title VU time window.
Plaintiffs claim ofretaliation is therefore time-barred under both statutes, and must be
dismissed.

4. Plaintiffs Claim of Hostile Work Environment

The court finds that Plaintiff has failed to allege any relevant facts within the relevant
time periods under Section 1983 or Title VII. Therefore, his claim of hostile work environment
must be dismissed as untimely.
a. Legal Standard

"To establish a hostile work environment under Title VII,...a plaintiff must show that

'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions ofthe victim's employment and create an
abusive working environment.'" Littleiohn. 795 F.3d at 320-21 (quoting Harris v. Forklift Svs..
Inc., 510 U.S.17,21 (1993)). "The incidents complained of must be more than episodic; they
must be sufficiently continuous and concerted in order to be deemed pervasive." Littleiohn. 795
F.3d at 321 (quoting Raspardo v. Carlone. 770 F.3d 97,114(2d Cir. 2014)).

For this type ofclaim,the boundaries ofthe time window may be relaxed somewhat
under the "continuing violation" doctrine:"[W]ith respect to hostile work environment claims,
consideration is given to 'behavior alleged outside the statutory time period, so long as [at least
one] act contributing to that hostile environment takes place within the statutory time period.'"
Orlando v. Dep't of Transp.. Comm'r.459 F. App'x 8, 9-10(2d Cir. 2012)(alterations omitted)
20

^quoting Nat'l R.R. Passenger Corp. v. Morgan,536 U.S. 101, 105 ^2002)1: see also Washington
V. Ctv. of Rockland. 373 F.3d 310, 318(2d Cir. 2004)("Conduct that has been characterized as a

continuing violation is 'composed ofa series of separate acts that collectively constitute one

unlawful employment practice.'"(quoting Morgan.536 U.S. at 111)).^
b. Application

Even after taking into account the continuing violation doctrine. Plaintiff's claim of

hostile work environment must be dismissed as untimely. The relevant allegations for this claim
are the same as for Plaintiff's claim ofretaliation. (See Am. Compl.

41-44 (describing the

harassment that preceded the Internal Complaint and the retaliatory harassment that followed).)
As described above, any harassment that preceded the Internal Complaint was found to have
occurred on or before July 18,2002. Any ensuing retaliatory harassment cannot reasonably be
assumed to have occurred as recently as October 2012.
*

*

*

Plaintiffs factual allegations are insufficient to support causes of action for disparate
treatment, retaliation, or hostile work environment. Therefore, the court grants Defendant's
Motion to Dismiss as to Plaintiffs clgdms under Title VII and Section 1983.

D. Title VI of the Civil Rights Act

Title VI prohibits employment discrimination against protected classes in programs and
activities that receive federal financial assistance. See 42 U.S.C. § 2000d. "[F]or a claimant to

recover under Title VI...,a threshold requirement is that the employer be the recipient of

' Amended Complaint could be read as implicitly asserting a "continuing violation" claim of disparate
The
treatment. (See Am.Compl. ^11 (alleging that Plaintiff has been denied promotions "continuously throughout his
career").) The Second Circuit is clear, however,that "[w]ith respect to claims based on...failure to promote,"
Title VII "precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time
period, even ifother acts of discrimination occurred within the statutory time period." McGullam v. Cedar
Graphics. Inc..609 F.3d 70,75(2d Cir. 2010)(emphasis, internal citations, and quotation marks omitted).
21

federal funds aimed primarily at providing employment." Ass'n Against Discriniination in

Employment. Inc. v. City of Bridgeport. 647 F.2d 256,276(2d Cir. 1981)(emphasis added)
(citations omitted). A district court may not consider a Title VI claim without first making a
finding, based on the record, as to the primary purpose ofthe releyant federal funds. Id.
at 276-77.

Plaintiff has made no allegations as to the existence ofany federal funding, much less the

primary purpose thereof. Without any releyant record on this mandatory threshold inquiry, the
court is precluded from considering Plaintiff's Title VI claim. The claim must thus be dismissed.
E. Sections 1985 and 1986

Section 1985 establishes three causes of action that target conspiracies to interfere with

ciyil rights.

42 U.S.C. § 1985. Section 1986,in turn, proyides a cause of action against a

person who neglects to preyent a harm under Section 1985. See id. § 1986. The court considers
these statutes together because "a § 1986 claim must be predicated upon a yalid § 1985 claim."
Mian y. Donaldson. Lufkin & Jenrette Sec. Corp.. 7 F.3d 1085,1088(2d Cir. 1993)(citation
omitted).

All three actions under Section 1985 require a showing of conspiracy among "two or

more persons." 42 U.S.C. § 1985. To satisfy the conspiracy element,"a plaintiff must proyide
some factual basis supporting a meeting ofthe minds, such that defendants entered into an
agreement, express or tacit, to achieye the unlawful end." Robinson y. Allstate Ins. Co.. 508 F.
App'x 7,9(2d Cir. 2013)(quoting Webb y. Goord. 340 F.3d 105,110(2d Cir. 2003)).
Defendant correctly points out that the Amended Complaint "is wholly silent with regard to any

agreement, express or understood, between the Port Authority and any person or entity, and yoid
of any facts regarding the effectuation of a conspiracy by the Port Authority." (Def.'s Mem.
at 9.)
22

Plaintiff fails to state a claim under Section 1985 or Section 1986. Defendant's Motion to

Dismiss is granted as to these statutes.
in.

CONCLUSION

For the reasons stated above, Defendant's Motion to Dismiss is GRANTED. The
Amended Complaint is hereby DISMISSED.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brookl)m,New York
October

NICHOLAS G. GARAUBIS

2016

United States District Judge

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