Javed et al v. Medgar Evers College of the City University of New York

Filing 49

MEMORANDUM and ORDER: All of Plaintiffs claims are dismissed with prejudice. Defendants motion 41 to dismiss is GRANTED in its entirety. Ordered by Judge Frederic Block on 9/29/2017. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------x
SYED JAVED and ANEELA WASIF,
Plaintiffs,
-against-

MEMORANDUM AND ORDER
15-cv-7424(FB)(ST)

MEDGAR EVERS COLLEGE OF THE
CITY UNIVERSITY OF NEW YORK,
JAMES HAGGARD, Deputy CIO;
CLAUDIA COLBERT, as former Chief
Information Officer; EDI RUIZ, as current
Chief Information Officer; and TANYA
ISAACS, Director of Human Resources
being sued Individually as employees of
defendant MEDGAR EVERS COLLEGE
OF THE CITY UNIVERSITY OF NEW
YORK,
Defendants.
--------------------------------------------------x
Appearances:
For the Plaintiff
BARRY R. FEERST
Barry R. Feerst & Associates
194 South 8th Street
Brooklyn, NY 11211

For the Defendant
MARK E. KLEIN
Office of the New York State
Attorney General
120 Broadway, 24th Floor
New York, NY 10271

BLOCK, Senior District Judge:
Plaintiffs Syed Javed (“Javed”) and Aneela Wasif (“Wasif”) seek damages and
injunctive relief against Javed’s former employer, Medgar Evers College of the City
University of New York (“Medgar Evers”). Plaintiffs allege Medgar Evers initiated
disciplinary proceedings, demoted, and eventually fired Javed on the basis of Javed’s

national origin and religion. Defendants move to dismiss Plaintiffs’ Second Amended
Complaint (“SAC”) pursuant to Fed. R. Civ. P. 12(b)(6). Defendants’ motion is granted.
I
To say that Plaintiffs’ SAC is not a model of effective pleading would be an
understatement. The presentation of facts in the complaint is unfocused, not in
chronological order, and rarely provides concrete dates for the events on which
Plaintiffs rest their claims. Key facts are often alluded to without detail. Plaintiffs
frequently make sweeping legal pronouncements without providing a basis for their
conclusion. The facts section provides no organization, running on for twelve and a half
pages with no subheadings. As a result, it is exceedingly difficult to make out a
coherent factual timeline sufficient to even begin evaluating Plaintiffs’ claims.
Given that Plaintiffs were given three full attempts to write a coherent
explanation of their claims, the total lack of organization and focus on display in the
SAC is particularly frustrating. Nonetheless, the Court has done its best to bring order
to the chaos of the SAC and create a coherent factual timeline. As always, the Court
takes Plaintiffs’ allegations, such as they are, as true for the purpose of a motion to
dismiss.1
1

For the purpose of a 12(b)(6) motion, the Court is limited to the four corners of the
Complaint, documents attached to it or incorporated by reference, documents that are ‘integral’
to Plaintiff’s claims even if not explicitly incorporated by reference, and facts of which the Court
may take judicial notice. Leason Ellis LLP v. Patent & Trademark Agency LLC, 2014 WL
2

A.

Background
Javed is a citizen of Pakistan and Canada and a Muslim. At all relevant times, he

lived in the United States with his wife Aneela. Javed and Aneela have two Americanborn children. Medgar Evers is a branch of the City University of New York (“CUNY”)
located in Kings County.2
Javed moved to New York from Canada to take a job at Medgar Evers in the
Information Technology (“IT”) field in 2001. As part of his employment, he was
sponsored for an H-1B visa, and Aneela received an H-4 visa as well. For many years,
his employment went well; he received positive performance reviews, raises, and
promotions, eventually resulting in the title “IT Security Manager” at “the time of his . .

3887194, at *2 (S.D.N.Y. July 2, 2014). Defendants provide additional documents which they
claim are “integral” to Plaintiff’s claim. A document is “integral” if a plaintiff has actual notice
of it, and that plaintiff’s complaint “relies heavily upon its terms and effect.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). Plaintiff’s reliance on the terms and effects of a
document is a necessary prerequisite before a court can consider it. Id. The Court will address
whether documents provided by Defendant meet this definition as needed.
2

Technically, Medgar Evers is a constituent senior college in the CUNY system and not a
legally cognizable entity apart from CUNY. See N.Y. Educ. Law §§ 6202(2) and (5), 6203;
Clissuras v. City Univ. of N.Y., 359 F.3d 79, 81 n.2 (2d Cir. 2004) (per curiam). “Consequently,
CUNY is the properly named Defendant in this action.” Id. Therefore, CUNY will be deemed
substituted in place of Medgar Evers as the properly named Defendant. See, e.g., Allen v. N.Y.C.
Dept. of Envtl. Prot., 51 F. Supp. 3d 504, 516 (S.D.N.Y. 2014) (substituting properly named
defendant for improperly named one). However, because all the alleged events took place at
Medgar Evers, for purposes of this opinion, the Court will continue to refer to Defendant by the
name Medgar Evers.
3

. termination.”3 This all ended with the entrance into the department of Defendant
Claudia Colbert (“Colbert”) in 2010.
B.

Colbert’s Alleged Discrimination
Colbert was the Chief Information Officer (“CIO”) of Medger Evers from 2010

to 2013 and appears to have had some sort of supervisory role over Javed (the
complaint does not specify their relationship).
The allegations against Colbert are salacious. Colbert “singled out and targeted
with intimidation, harassment and threats those employees of Middle Eastern or South
Asian national origin, race, and or [sic] of the Islamic religion.” SAC ¶ 22.The many
discriminatory acts Colbert is alleged to have committed against these employees
include:
•

Publicly humiliating them;

•

Demanding that they be fired (no specific instance was described);

•

Denying access to resources to impede their job performance (she
allegedly denied all requests made by Javed’s Iranian supervisor,
Mohammad Nematollahi (“Nematollahi”), to upgrade the
telecommunications system simply because he was Iranian);

•

Removing staff (she allegedly transferred the entire staff of Iranian Head
Librarian Danish Yazdani away from him, prompting him to resign, at
which point she transferred the entire staff back under the new Head
Librarian).

3

The SAC is inconsistent on this point; it later describes Javed as having been demoted to
IT Assistant Level III by the time he was fired.
4

Javed also alleges she committed the following specific acts against him:
•

•

At some point in 2012, she rerouted his Form I-129 through her office and
refused to sign it; however, a few weeks later, she returned it to him and
told him to process it through proper channels;

•

During one of these immigration disputes, she told Javed “[i]t might not
matter for you, but to me it does because I was raised in this country where
my ancestors belong []”;

•

C.

At some point in 2012 or 2013, Colbert demanded to see Javed’s
immigration papers and route his reapproval for his visa through her (even
though she had no authority to do so). According to Javed, this prevented
him from obtaining a green card (though he does not specify how). She
also attempted to prevent his visa paperwork from being renewed;

At an unspecified time, she learned Javed had contracted a virus from a
blood transfusion and forced him to stay away from work out of fear he
was “infectious.” When he returned with a doctor’s note saying he was not,
she put him in “quarantine conditions” away from other employees
anyway, publically humiliating him.

Colbert Leaves, Ruiz Takes Over
From here, the facts become murky. However, the following events appear to

have occurred, in some order during 2012 and 2013, with some relationship to one
another:
•

Nematollahi filed an unspecified legal action against Medger Evers related
to Colbert’s conduct.

•

Colbert was transferred from Medger Evers to Queens College.

•

Nematollahi was charged with disciplinary misconduct, of which it appears
he was eventually cleared.

5

Javed provided an affidavit in support of Nematollahi’s legal action.4

•

The outcome of Nematollahi’s legal action is unclear. However, it appears
possible that Colbert’s transfer was motivated in some part by Nematollahi’s legal
proceedings.
After Colbert left, Edi Ruiz (“Ruiz”) took over as the CIO some time in 2013.
Javed complains that Ruiz removed his assistant, Sana Fahad, also of “Middle Eastern,
Asian, or Muslim decent [sic],” who later resigned. Ruiz continued Colbert’s practice
of ignoring requests for resources for the IT Security department. When Javed
approached her to complain, Ruiz told him, “[I] don’t need much IT security.” SAC ¶
44. According to Javed, this neglect was, at least in part, responsible for what happened
next.
D.

The Disciplinary Proceedings
At some point in either 2013 or 2014, Medgar Evers appears to have suffered

some sort of IT systems failure. Once again, the SAC provides virtually no details as to

4

Defendants provide a copy of the affidavit. This document is properly before the Court
because Javed’s retaliation claim is based entirely on his filing of this affidavit, and therefore it is
integral to his complaint. The affidavit was filed September 10, 2013 and asserts that Medgar
Evers agreed to file Javed’s green card case but never did so.
6

what occurred.5 What is clear is Javed took partial blame for it.6
On May 21, 2014, Javed faced serious disciplinary charges stemming from this
failure and was demoted to “IT Assistant Level III” pending the close of investigation.
He was also placed on administrative leave. Javed was charged with the following:
CHARGE-I: Misconduct – Neglect of Duty and Incompetence
In or about and between July 2003 and May 20, 2014, Respondent
failed to monitor and remediate technical data vulnerabilities on the
network. The results of a vulnerability assessment conducted by CUNY
CIS on March 10, 2014 indicate that these assessments have either not
been performed or were inadequately performed. As a result, significant
security vulnerabilities and deficiencies were present, placing CUNY nonpublic university data and systems at risk.
CHARGE-II: Misconduct – Providing False Information on Official
CUNY Paperwork
In or about and between 2003 and 2013, Respondent failed to
ensure that there was accurate reporting of information on the IT Security
Attestation, which the College provides to CUNY CIS. As a result, the
college was not sufficiently verified for compliance and that, in fact,
significant vulnerabilities and deficiencies were present, placing CUNY
non-public university data and systems at risk.
SAC at 13.
Javed, of course, contests vigorously that he did anything wrong, calling these
charges “fabricated” and “bogus” throughout the SAC. He claims these charges were
brought in retaliation for his filing of an affidavit in Nematollahi’s lawsuit, that the

5

Defendants provide an explanation and supporting documentation here as well.
However, because Javed did not rely on these documents in making his claim, they were not
integral to his complaint. Therefore, the Court will not consider them now and will instead rely
on the facts as alleged in the SAC.
6

Indeed, according to the SAC, Nematollahi was cleared of wrongdoing related to the
failed IT system.
7

damage to Medgar Evers’s IT systems were caused by Colbert’s obstruction and Ruiz’s
neglect, and that, despite his job title “IT Security Manager,” the mismanagement of
Colbert and Ruiz had effectively neutered him and his entire department and rendered
him blameless for the failure of Medgar Evers’s IT security systems.
Javed faced a disciplinary hearing on June 10, 2014, at which time he
“documented the fabricated nature of the charges.” SAC ¶ 56. However, a final decision
was never issued, and Javed was left on administrative leave for nine months.
According to Javed, on the day of the hearing, Tanya Isaacs (“Isaacs”), Medgar Evers’s
HR Manager, told Javed that they intended to never resolve the disciplinary issue and
simply wait until Javed’s visa expired and terminate him on that basis. Javed also
alleges that James Haggard (“Haggard”), Deputy CIO of CUNY, “conspired” with
Isaacs in this plan.
Javed alleges, without specifics, that this was in violation of the Disciplinary
Procedure outlined in a document called the “CUNY Civil Service Employee
Handbook.”7

7

In their briefing, Defendants and Plaintiffs both refer to a different document, provided
by Defendants, called, in pertinent part, “2006-2009 Agreement covering Clerical Administrative
and Professional Employees of the Classified Service of the City University of New York . . . .”
(“2006-2009 Agreement”). Def’s Mot. Dismiss Ex. B. However, the operative facts of this case
occur from 2013-2015. Therefore, this document is not relevant.
8

E.

Javed Loses Work Visa and Job
On February 9, 2015, still with no resolution of his disciplinary action, Javed

received an email notifying him that his “TN-I immigration status expired on [Friday]
February 6” and that he was therefore terminated from his position. SAC ¶ 55.
II
On January 19, 2015, Javed filed a claim with the Equal Employment
Opportunity Commission (“EEOC”),8 and on October 3, 2015, he received a Dismissal
and Notice of Right to Sue from the EEOC.
Plaintiffs filed their complaint on December 30, 2015, their First Amended
Complaint (“FAC”) on May 27, 2016, and their Second Amended Complaint (“SAC”)
on October 14, 2016. The SAC grouped its claims into four causes of action:
discrimination, retaliation, conspiracy, and infliction of emotional distress/loss of
consortium. Within these four causes of action, Plaintiffs allege violations of Title VII,
42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1985, New York State Executive Law
§ 296, New York City Administrative Code § 8-107, and New York Labor Law § 215.
Defendants filed this Motion to Dismiss on February 28, 2017.
Under Fed. R. Civ. P. 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) “To

8

The SAC does not specify when Javed filed his EEOC claim. However, the First
Amended Complaint does. “The Court may take judicial notice of [a prior complaint] as matters
of public record.” Eaves v. Designs for Finance, Inc., 785 F. Supp. 2d 229, 245 (S.D.N.Y. 2011).
9

survive a motion to dismiss, the complaint must plead “enough facts to state a claim to
relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007), and “allow[] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“[W]hile a discrimination complaint need not allege facts establishing each
element of a prima facie case of discrimination to survive a motion to dismiss, it must at
a minimum assert nonconclusory factual matter sufficient to nudge[] [its] claims . . .
across the line from conceivable to plausible to proceed.” E.E.O.C. v. Port Authority,
768 F.3d 247, 254 (2d Cir. 2014) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510 (2002); Iqbal, 556 U.S. at 680) (citation omitted).
III
A.

Abandoned Claims
As an initial matter, Plaintiffs’ Opposition to Defendants’ Motion to Dismiss fails

to address many of Defendants’ arguments or defend three of their four claims.
“[C]ourts in this circuit have held that ‘[a] plaintiff’s failure to respond to contentions
raised in a motion to dismiss claims constitutes an abandonment of those claims.’ ”
McLeod v. Verizon New York, Inc., 995 F. Supp. 2d 134, 143 (E.D.N.Y. 2014) (quoting
Youmans v. Schriro, 2013 WL 6284422, at *5 (S.D.N.Y. Dec. 3, 2013)); see also Reid v.
Ingerman Smith LLP, 876 F. Supp. 2d 176, 186 (E.D.N.Y. 2012) (dismissing a claim
because plaintiff failed to defend it in her opposition brief).
10

Plaintiffs failed to defend any of Wasif’s claims, the Retaliation claim, the
Intentional and Negligent Infliction of Emotional Distress claims, the Loss of
Consortium claim, the 42 U.S.C. § 1981 claims, and the 42 U.S.C. § 1985 claims.
Therefore, all of these claims are dismissed. Because Plaintiff Wasif is left with no
claims, she is dismissed from this action. Because Plaintiffs’ second, third, and fourth
causes of action rely entirely on the Retaliation claim, 42 U.S.C. § 1985, and the
Emotional Distress and Loss of Consortium claims, these causes of action are
dismissed.
The Court moves on to the claims that Javed attempts to defend—his 42 U.S.C. §
1983 claims, Title VII Discrimination claim, and state law claims.
B.

Section 1983 Claims
Both parties treat the SAC as having pleaded procedural due process and equal

protection claims as part of his SAC. Though the Court is skeptical these causes of
action were clearly pleaded, it will address them anyway. Section 1983 provides, in
relevant part:
Every person who, under color [of law] . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983.
A § 1983 claim has two elements: (1) the defendant acted under color of state
11

law; and (2) as a result of the defendant’s actions, the plaintiff suffered a denial of his
federal statutory rights, or his constitutional rights or privileges. Quinn v. Nassau Cty.
Police Dept., 53 F. Supp. 2d 347, 354 (E.D.N.Y. 1999); Eagleston v. Guido, 41 F.3d
865, 876 (2d Cir. 1994).
The parties do not dispute that the Defendants operated under “the color of state
law.” Indeed, the Second Circuit has held that “[t]here can be no question that
defendants . . . are, in their personal capacities, amenable to suit under [§ 1983],
inasmuch as they were conducting themselves as supervisors for a public employer and
thus were acting under color of state law.” Annis v. Cty. of Westchester, 36 F.3d 251,
254 (2d Cir. 1994).
The question, then, is whether Javed has sufficiently pleaded a deprivation of his
constitutional rights. The Court holds that he has failed to do so.
1.

Eleventh Amendment
As a threshold matter, the Eleventh Amendment to the United States

Constitution bars suit in federal court for relief against a State by a private citizen
absent the State’s consent or a valid Congressional abrogation of immunity. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). This protection extends to the
senior colleges of CUNY, such as Medgar Evers, which are State entities. See
Clissuras, 359 F.3d 79, 81, 81 n.2 (2d Cir. 2004). This protection also covers the
individual Defendants acting in their official capacities. See Will, 491 U.S. at 71. This
12

leaves only the individual Defendants in their personal capacities.
Javed argues that he seeks prospective relief, namely reinstatement of his
position, and therefore, the Eleventh Amendment does not apply. See Verizon
Maryland, Inc. v. Pub. Serv. Com’n, 535 U.S. 635, 645 (2002); see also Ex parte
Young, 209 U.S. 123 (1908). However, to receive prospective relief, a plaintiff must
allege an “ongoing” violation of Federal law. Verizon Maryland, 535 U.S. at 645. “A
plaintiff may not . . . seek even equitable relief (such as reinstatement to an
employment position) as compensation for past, isolated state conduct.” A.A. v. Bd. of
Educ., Cent. Islip Union Free Sch. Dist., 196 F. Supp. 2d 259, 267 (E.D.N.Y. 2002).
Here, Javed cannot allege ongoing violation of Federal law because any
misconduct against him stopped, at the latest, when he was let go from Medgar Evers.
What he seeks instead is relief for “past, isolated state conduct.” See id.
Therefore, the Eleventh Amendment bars all 42 U.S.C. § 1983 claims against
Medgar Evers and the individual Defendants in their official capacities. It does not bar
suits against the Defendants in their individual capacities. See Hafer v. Melo, 502 U.S.
21, 31 (1991).
2.

Equal Protection Claim
The parties treat Javed’s SAC as having plead an equal protection claim.

However, the only language supporting an equal protection claim is in ¶ 95, as part of
Javed’s retaliation claim, where Javed alleges “[t]he plan of Defendants in so acting
13

was to prevent Javed, through legal, economic and psychological intimidation and
hardship, from seeking the equal protection of the laws.” SAC ¶95. Simply including
the words “equal protection” in a complaint is insufficient to allege a plausible cause of
action. See Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.”). Further, this claim is
included in Javed’s retaliation claim, which he abandoned in his Opposition. Finally,
even if Javed had not abandoned this claim, the Equal Protection Clause does not
support a claim for retaliation. See Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996)
(“[W]e know of no court that has recognized a claim under the equal protection clause
for retaliation following complaints of racial discrimination.”). Therefore, to any extent
that the SAC attempts to plead an equal protection claim, it fails.
3.

Procedural Due Process Claim
The parties treat the SAC’s allegation that CUNY’s failed to follow “the CUNY

protocol regarding disciplinary action” as a procedural due process claim. However, the
SAC does not allege what that protocol is or how it was violated. “The court need not
credit conclusory statements unsupported by assertions of fact or legal conclusions and
characterizations presented as factual allegations.” In re Livent, Inc. Noteholders Sec.
Litig., 151 F. Supp. 2d 371, 404 (S.D.N.Y. 2001) (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)).
In his Opposition, Javed attempts to resuscitate this claim by pointing to
14

language in the 2006-2009 Agreement, provided by Defendants, requiring a decision
within “days” of the disciplinary hearing. However, the 2006-2009 Agreement was not
operative in 2014, at the time of Javed’s hearing. Even if it were, Defendants rightfully
point out that the 2006-2009 Agreement provides a grieved party the right to escalate
the proceedings in the event that a decision was not timely made. Javed never exercised
that right.
Further, Javed had an adequate post-termination proceeding available to
him—an Article 78 proceeding in state court. See Hoover v. Cty. of Broome, 340 Fed.
App’x 708, 711 (2d Cir. 2009) (holding that failure to “utilize the adequate postdeprivation remedy of an Article 78 proceeding” warranted dismissal of plaintiff’s
procedural due process claim).9
Therefore, Javed has failed to provide factual support for his procedural due
process claim, and it must be dismissed.
C.

Title VII
This leaves Javed’s Title VII claim for discrimination. As an initial matter, “an

individual defendant cannot be held personally liable under Title VII.” Schiano v.
Quality Payroll Sys., Inc., 445 F.3d 597, 608 n.8 (2d Cir. 2006); see also Tomka v.
Seiler Corp., 66 F.3d 1295, 1313-14 (2d Cir. 1995), abrogated on other grounds by

9

The SAC at no point alleges that Javed was due a pre-deprivation procedure. Indeed, the
challenged procedure itself—the administrative hearing—was a post-deprivation procedure since
Javed had already been demoted and put on administrative leave at the time it occurred.
15

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Therefore, Javed’s Title VII
claims are dismissed against all defendants in their personal capacity.
1.

Title VII Time Bar
“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. Hous. Auth., 458 F.3d 67, 69 (2d Cir.
2006); 42 U.S.C. § 2000e-5. The claimant must make the EEOC filing within 300 days
of the alleged discriminatory conduct. Williams, 458 F.3d at 69. “[D]iscrete
discriminatory acts are not actionable if time barred, even when they are related to acts
alleged in timely filed charges.” National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002).
Javed alleges that he filed his EEOC complaint on January 19, 2015. Therefore,
any conduct that occurred prior to March 25, 2014, 300 days prior, is time barred.
Javed failed to respond to Defendants’ argument on this point; therefore, he has
abandoned his claims as applied to discrete acts before this date.10 This includes all
conduct by Defendant Colbert, who left the office in 2013.
The only alleged conduct that falls after this date is Javed’s demotion, forced

10

Javed also does not allege that Colbert’s actions were subject to the “continuing
violation” doctrine. Regardless, “[t]he courts of this Circuit have generally been loath to invoke
the continuing violation doctrine and will apply it only upon a showing of compelling
circumstances.” Falinski v. Kuntz, 38 F. Supp. 2d 250, 257 (S.D.N.Y. 1999). Here, Javed has
made no showing, much less a “compelling” one.
16

administrative leave, and eventual firing.
2.

Discrimination Claim
“In order to establish a prima facie Title VII claim, [a plaintiff] must show that

(1) [he] is a member of a protected class; (2) [he] was qualified for [his] position and
satisfactorily performed [his] duties; (3) [he] suffered an adverse employment action;
and (4) the circumstances surrounding that action giv[e] rise to an inference of
discrimination.” Buckley v. New York, 959 F. Supp. 2d 282, 296 (E.D.N.Y. 2013). To
satisfy the fourth prong, the plaintiff must allege facts “sufficiently to plausibly suggest
[a defendant’s] discriminatory state of mind” and “conclusory allegations are not
entitled to the presumption of truth.” Id. (citing Iqbal, 556 U.S. at 677-684).
It is proper to dismiss a claim for discrimination when the complaint itself
“acknowledge[s] [defendants had a] non-discriminatory reason for the adverse action
and fail[s] to allege facts which, if proved, would establish that this reason for the
penalty was pretextual, and that the action was, in fact, taken due to a discriminatory
animus.” Martinez v. New York, 338 Fed. App’x 71, 73 (2d Cir. 2009) (summary
order).11
Martinez is instructive. In Martinez, the plaintiff alleged he was fined three days’
pay because of his supervisor’s bias against African-Americans. Id. The district court
dismissed the case pursuant to a 12(b)(6) motion. Id. The Second Circuit affirmed
11

In the Second Circuit, Summary orders issued on or after January 1, 2007 may be cited,
though they do not have precedential effect. LR 32.1.1.
17

because the plaintiff’s own complaint acknowledged a non-discriminatory reason for
the dismissal—that plaintiff had confronted the supervisor—and the complaint failed to
allege facts which, if proved, would established that this reason was pretextual. Id.
Here, the adverse actions complained of by Javed are his demotion,
administrative leave, and eventual firing. However, Javed has not alleged any facts that
would give rise to an inference of discrimination surrounding these events. Instead, the
facts alleged in the SAC provide a much more pedestrian reason for Medgar Evers’s
actions against him: that he was disciplined because of the failure of Medgar Evers’s IT
security systems while he was IT Security Manager. This is borne out by the
disciplinary charges themselves, which accuse Javed of “Misconduct – Neglect of Duty
and Incompetence” and “Misconduct – Providing False Information on Official CUNY
Paperwork.” SAC ¶ 58. Further, Plaintiffs themselves admit that Nematollahi was
eventually cleared of misconduct, despite sharing the same protected class as Javed.
SAC ¶ 64.
All of Javed’s factual allegations of discriminatory conduct relate to one
person—Colbert. However, Colbert had been removed from her position months before
the disciplinary proceedings against Javed began and played no role in those
proceedings. Further, all of the conduct by Colbert is time-barred under Title VII, as
discussed above.
The worst conduct alleged against Ruiz was that she removed Javed’s assistant
18

and told Javed, “we don’t need much IT security.” However, Plaintiffs provide nothing
but conclusory statements to suggest these actions were motived by discrimination.
Javed may rightfully have a complaint that the actions of Ruiz inhibited his ability to
do his job, contributing to the failure of the IT system while he was in charge of it.
However, he provides no facts to suggest her actions were animated by discrimination,
rather than simple incompetence.
Javed alleges nothing against Isaacs and Haggard except that they were involved
in the decision to put him on administrative leave, and that Isaacs admitted that they
planned to let his immigration status expire and terminate him on that basis. These
allegations provide no evidence of a discriminatory animus, especially because Javed
admits that he was placed on administrative leave because of the the IT failure. Javed
further admits that he recommended security updates, that these recommendations were
ignored or overturned, and that the failure to install these updates contributed to the IT
failure under his watch. See SAC ¶ 45-46. However, Javed did nothing to alert higher
ups at the college about the glaring problem with security. Indeed, his second
disciplinary charge for Providing False Information on Official CUNY Paperwork
explicitly accuses him of providing false information to CUNY in order to cover up his
noncompliant and vulnerable IT systems.
Javed’s failure to perform the basic functions of his job is sufficient to explain
why he was disciplined. Nor has Javed alleged any facts tending to show that Medgar
19

Ever’s concern about the IT failure was pretextual.
Finally, Javed does not even attempt to dispute that he was ultimately fired
because his immigration status expired. Once that occurred, Medgar Evers no longer
had the legal right to employ Javed. Therefore, the decision to fire Javed, which was
mandatory under United State immigration law, could not have been because of
discrimination. Javed has failed to state a valid Title VII discrimination claim.
E.

State Law Claims
Because the Court has dismissed all of Javed’s federal claims, the Court may

exercise its discretion and dismiss Javed’s state law claims as well. See United Mine
Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (holding “if the federal claims
are dismissed before trial . . . the state claims should be dismissed as well.”)
Regardless, his state law claims largely overlap with his Title VII claims. Therefore, if
the Court were to reach them on the merits, it would dismiss them anyway.
IV
Despite the inadequate pleading and briefing, the Court did its best to
meticulously evaluate Plaintiffs’ claims in case a legitimate cause of action was hidden
within the mess of the SAC. At the end of the day, however, Plaintiffs were not
proceeding pro se, and it is not the Court’s job to do Plaintiffs’ counsels’ work for
them. The Court gave Plaintiffs two opportunities to amend their Complaint. They do
not need a third.
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All of Plaintiffs’ claims are dismissed with prejudice. Defendants’ motion to
dismiss is GRANTED in its entirety.

SO ORDERED

____________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
September 29, 2017

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