Romero v. City of New York et al
Filing
22
MEMORANDUM DECISION AND ORDER that Plaintiffs federal and NYSHRL claims are dismissed with prejudice and plaintiffs NYCHRL claims are dismissed without prejudice. ( Ordered by Judge Brian M. Cogan on 10/21/2016 ) *Forwarded for jgm (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
ROLANDO ROMERO,
:
:
Plaintiff,
:
: MEMORANDUM DECISION AND
- against : ORDER
:
CITY OF NEW YORK; FDNY FIRE
: 16 Civ. 4157 (BMC)
DEPARTMENT OF NEW YORK,
:
MICHAEL GALA, THOMAS BRADLEY,
:
CHARLES BARRACO, and JOHN AND
:
JANE DOES,
:
:
Defendants.
:
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COGAN, District Judge.
Plaintiff, a firefighter formerly employed by the Fire Department of the City of New
York (“FDNY”), has brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. (“Title VII”), 42 U.S.C. § 1983, 42 U.S.C. § 1981, the New York State Human
Rights Law, N.Y. Exec. Law §§ 290-301 (“NYSHRL”), and the New York City Human Rights
Law, N.Y.C. Admin. Code §§ 8-101 to 8-703 (“NYCHRL”), against the City of New York, the
FDNY, FDNY employees Michael Gala, Thomas Bradley, and Charles Barraco, in their
individual and official capacities, and unnamed FDNY Jane and John Doe defendants. He
claims that he suffered discrimination, a hostile work environment, and retaliation on the basis of
his race and for filing internal complaints with the FDNY’s Equal Employment Opportunity
(“EEO”) office. The named defendants have moved to dismiss the complaint, and for the
reasons stated below, I grant defendants’ motions.
SUMMARY OF COMPLAINT
Plaintiff is a 34-year old Hispanic male who was hired by the FDNY on June 11, 2006.
Plaintiff acknowledges that his appointment predated any of the allegations regarding FDNY’s
racially-motivated hiring practices, as are at issue in United States & Vulcan Society, Inc. v. City
of New York, 07 Civ. 2067 (NGG) (the “Vulcan litigation”). In that case, the United States and
the Vulcan Society alleged that the entrance exams used by the FDNY were biased against
minority applicants. Plaintiff acknowledges that initially he was treated like any newly-assigned
probationary firefighter; however, he alleges that he became a target for hostility once his
colleagues became aware that he was supportive of the plaintiffs in the Vulcan litigation.
Plaintiff broadly alleges that FDNY employees subjected him to discrimination, hostility,
and harassment because of his race. He alleges that he was subjected to “racial slurs being used
within earshot;” “being systematically ignored and shunned by his colleagues;” rude and abrupt
interactions “without any pleasantries or civilities;” assignments to inferior positions of duty; and
retaliatory charges of misconduct. Plaintiff alleges that he was refused “mutuals,” or the
switching of work shifts and other favors; that no one would check the rig when plaintiff was
working on it; and that he was regularly called a “skell,” which plaintiff defines as “a New Yorkcentric, derogatory term used to describe someone as a lowlife or crook.” Plaintiff nowhere
alleges that the term has any racial connotation, however.
In the winter of 2008, plaintiff made his first complaint of discrimination with FDNY’s
EEO, alleging a hostile work environment, discrimination, and disparate treatment because of his
race. The complaint in this Court does not give any of the specifics that were contained in
plaintiff’s 2008 administrative filing with the EEO. In any event, the EEO ruled that plaintiff’s
first complaint was unfounded. In 2010, plaintiff again complained to the EEO. Plaintiff’s
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complaint in this Court again contains no recitation of the allegations he made in his 2010
complaint, but plaintiff alleges that his superior officer advised him to file his 2010 EEO
complaint. The EEO determined that plaintiff’s second complaint was also unfounded.
Plaintiff alleges that after these two unsuccessful EEO complaints, the FDNY began to
retaliate against him. For example, plaintiff alleges that the FDNY “exaggeratedly monitored
plaintiff’s arrival times in the morning, allowing his Caucasian colleagues to arrive late but sign
in as though they had arrived on time,” while plaintiff was written up for the same conduct.
Plaintiff alleges that the retaliatory treatment caused him to cease participating in mealtimes,
which he describes as the most important part of teambuilding. Plaintiff further alleges that he
was subjected to frequent and direct racial slurs.
In early 2011, following an incident with colleagues who plaintiff alleges accosted and
racially berated him, plaintiff was transferred out of his Ladder Company 1 to FDNY
Headquarters, where he alleges he was subjected to disparate treatment, constant monitoring,
rudeness, and hostility. Plaintiff alleges this conduct was retaliation, and the retaliation “was
coming from the highest echelons” of the FDNY. Plaintiff alleges that his every move was
scrutinized and that he was forced to adhere to policies that others were permitted to disregard.
There appears to be a gap in time in the complaint, but plaintiff alleges that in July 2013,
as a result of being out of the firehouse for more than six months, plaintiff was made to attend
retraining, during which he describes the instructors as having been rude, hostile, intimidating,
and condescending. Further, on or about July 11, 2013, as part of the retraining, plaintiff’s
cohort undertook a firefighter removal drill, which is normally done with a fog machine or
1
The FDNY is comprised of fire companies, and there are six types of companies: (i) Engine Companies, (ii)
Ladder Companies, (iii) Rescue Companies, (iv) Squad Companies, (v) Marine Companies, and (vi) the Haz-Mat
Company. FDNY’s Ladder Companies are tasked with search and rescue, forcible entry, and ventilation at the
scene of a fire, and there are currently 143 Ladders in the FDNY.
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burning hay, but during this retraining, wood pallets were set on fire. Plaintiff alleges that he
was positioned dangerously close to the fire and that, as the instructors stood by laughing, the
flames started burning the firefighters, with plaintiff suffering second degree burns on his back
and shoulders, requiring four months of medical leave. When plaintiff returned in November
2013, he was returned to Headquarters. That same month, he was told he would be transferred
back to his Ladder, but the next day was told that the transfer was no longer happening. On May
1, 2014, plaintiff was terminated.
Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6).
DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To
survive 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, 129
S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.
1955, 1974 (2007)). “A plaintiff’s obligation . . . requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555, 127 S. Ct. at 1965.
To determine if a motion to dismiss for failure to state a claim is appropriate, the Court
must “accept as true all facts alleged in the complaint” and “draw all reasonable inferences in
favor of the plaintiff.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).
When considering a motion to dismiss, “[t]he appropriate inquiry is not whether a plaintiff is
likely to prevail, but whether he is entitled to offer evidence to support his claims.” Id. (internal
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quotation marks omitted). Although the Court must “take all of the factual allegations in the
complaint as true” for the purpose of a motion to dismiss, the Court is “not bound to accept as
true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S. Ct. at
1950.
Plaintiff alleges, pursuant to Title VII, 42 U.S.C. § 1983, 42 U.S.C. § 1981, NYSHRL,
and NYCHRL, causes of action for discrimination, hostile work environment, and retaliation on
the basis of his race and for filing internal FDNY EEO complaints. The complaint against all
defendants is dismissed for the following reasons: (i) the FDNY is an improper defendant;
(ii) the claims under 42 U.S.C. § 1981 are encompassed by the claims under 42 U.S.C. § 1983;
(iii) the statutes of limitations bar consideration of most of the complained-of conduct; and
(iv) the complaint fails to state a claim for relief.
I.
The FDNY is an Improper Defendant.
The New York City Charter provides that “[a]ll actions and proceedings for the recovery
of penalties for the violation of any law shall be brought in the name of the city of New York and
not in that of any agency, except where otherwise provided by law.” N.Y.C. Charter § 396. As a
result of this provision, the cases have uniformly held that the FDNY is not a suable entity. See,
e.g., Fahey v. City of New York, No. 10 CIV. 4609, 2012 WL 413990, at *5 (E.D.N.Y. Feb. 7,
2012) (“As an initial matter, summary judgment is granted on all claims brought against the
FDNY because the FDNY – a municipal agency – cannot be subject to suit.”).
Plaintiff’s opposition argues that the FDNY may be sued because the “otherwise
provided by law” exception applies here. Plaintiff argues that New York City Administrative
Code § 13-377, entitled “Protection against fraud or mistake,” cuts against defendants’ argument.
Section 13-377 provides that “[a]ny person who shall knowingly make any false statement, or
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shall falsify or permit to be falsified any record or records of this pension fund, shall be guilty of
a misdemeanor.” N.Y.C. Admin. Code § 13-377. Plaintiff argues that this law is applicable
because FDNY’s actions, ostensibly in terminating plaintiff, “affected” plaintiff’s pension rights.
This argument is meritless. The provision cited clearly has no application to the facts of
the case here: it simply outlines misdemeanor fraudulent conduct. Moreover, if a law intended
to create liability for an otherwise-not-suable entity, it would do so explicitly. See, e.g.,
Sossamon v. Texas, 563 U.S. 277, 284, 131 S. Ct. 1651, 1658 (2011) (“[O]ur test for
determining whether a State has waived its immunity from federal-court jurisdiction is a
stringent one. A State’s consent to suit must be unequivocally expressed in the text of the
relevant statute.” (internal quotation marks and citations omitted)). Accordingly, the Court finds
that, pursuant to the New York City Charter, the FDNY is an improper defendant and dismisses
all claims against it.
II.
Plaintiff’s Claims Pursuant to 42 U.S.C. § 1981 Are Encompassed in His Claims
Under 42 U.S.C. § 1983.
When the defendant is a state actor, 42 U.S.C. § 1983 is the exclusive remedy for
violations of the rights guaranteed under 42 U.S.C. § 1981. See Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 735, 109 S. Ct. 2702, 2723 (1989) (holding “that the express ‘action at law’
provided by § 1983 for the ‘deprivation of any rights, privileges, or immunities secured by the
Constitution and laws,’ provides the exclusive federal damages remedy for the violation of the
rights guaranteed by § 1981 when the claim is pressed against a state actor”). Here, the
remaining defendants are a municipality and city agency personnel, and the allegations in the
complaint relate to conduct in connection with their state roles.
Plaintiff’s opposition concedes that the holding in Jett applies to defendant the City of
New York and therefore does not object to the merging of his § 1981 and § 1983 claims with
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respect to the City. Plaintiff, however, maintains that his claims against the named defendants
are sufficient based on a “cat’s paw” theory, whereby a defendant may be found individually
liable where his conduct caused the state actor to retaliate. Plaintiff’s argument fails.
As the Second Circuit has found, a plaintiff’s § 1981 claims, whether against a
municipality, state entity, or state employee, “are encompassed by [his] § 1983 claims, and both
are therefore analyzed under § 1983.” Gladwin v. Pozzi, 403 F. App’x 603, 605 (2d Cir. 2010).
And this unification of claims is not limited to claims filed against an employee in his official
capacity: “Jett has been interpreted to encompass not only governmental entities but also
individuals sued in their individual capacities who are ‘state actors.’” Roper v. Hynes, No. 05
CIV. 7664, 2006 WL 2773032, at *12 (S.D.N.Y. Sept. 27, 2006). Accordingly, the Court
dismisses plaintiff’s claims arising under 42 U.S.C. § 1981 as duplicative of his claims arising
under 42 U.S.C. § 1983 against the City and the individual defendants. 2
III.
The Complaint Is Barred in Part by the Applicable Statutes of Limitations.
The majority of the allegations in the complaint are time-barred by one or both of the
applicable statutes of limitations. First, under Title VII, a plaintiff must file an administrative
charge with the Equal Employment Opportunity Commission (“EEOC”) or equivalent local
agency “within three hundred days after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1). Plaintiff filed his charge of discrimination with the EEOC on April
24, 2014, and defendants therefore argue that his allegations concerning acts that took place prior
to June 28, 2013, are time-barred under Title VII. Plaintiff’s opposition does not contest this
2
It is also worth mentioning that in any event, plaintiff has failed to plead sufficient facts to state a claim for relief
under § 1981. Nowhere in the complaint does plaintiff articulate the basis for his claim; he merely states that the
defendants interfered with his rights to enforce contracts. This is insufficient: “[A]s required by the plain text of the
statute, we hold that a plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the
existing (or proposed) contract that he wishes ‘to make and enforce.’ Section 1981 plaintiffs must identify injuries
flowing from a racially motivated breach of their own contractual relationship.” Domino’s Pizza, Inc. v. McDonald,
546 U.S. 470, 479-80, 126 S. Ct. 1246, 1252 (2006).
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point, conceding that the events predating June 28, 2013, are offered to illustrate the pattern of
treatment. 3
With respect to the claims brought under 42 U.S.C. § 1983, NYSHRL, and NYCHRL,
those claims are all governed by a three-year statute of limitations. Cloverleaf Realty v. Town of
Wawayanda, 572 F.3d 93, 94 (2d Cir. 2009) (42 U.S.C. § 1983); Kassner, 496 F.3d at 238.
(NYSHRL and NYCHRL). Plaintiff commenced this action on July 27, 2016. Accordingly,
plaintiff’s allegations concerning acts that took place prior to July 27, 2013, are similarly timebarred under 42 U.S.C. § 1983, NYSHRL, and NYCHRL. As a result of both limitations, the
vast majority of plaintiff’s allegations are time-barred, including all claims against defendant
Michael Gala, as all of the factual allegations in the complaint relating to Gala concern the time
period prior to June 6, 2013. Therefore, all claims against defendant Gala are dismissed.
IV.
The Complaint Fails to State a Claim for Relief for the Remaining Claims.
The only remaining defendants are the City of New York, Thomas Bradley, and Charles
Barraco, and the only allegations left are (i) the July 11, 2013 incident where plaintiff was
injured during a retraining exercise, arising under Title VII only; (ii) the November 2013
incident where plaintiff’s transfer back to his Ladder was rescinded, arising under Title VII, 42
U.S.C. § 1983, NYSHRL, and NYCHRL; and (iii) plaintiff’s termination from the FDNY
effective May 1, 2014, arising under Title VII, 42 U.S.C. § 1983, NYSHRL, and NYCHRL. For
the following reasons, the remaining claims are dismissed.
3
The Court notes that Title VII’s filing requirements are not a jurisdictional prerequisite to filing suit in federal
court; rather, they are requirements that, like statutes of limitations, are subject to waiver, estoppel, and equitable
tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132 (1982). Because plaintiff
did not raise these arguments and conceded the point, the Court need not engage in this analysis.
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A. The Complaint Fails to State a Claim Against Defendants Thomas Bradley
and Charles Barraco.
As defendants accurately argued in their motion to dismiss, defendants Bradley and
Barraco make no appearance in the factual allegation paragraphs of the complaint. They appear
once under “Parties” and then under several of the “Causes of Action,” for hostile work
environment, discrimination, and retaliation under 42 U.S.C. § 1983, NYSHRL, and NYCHRL.
Yet plaintiff’s allegations in the “Causes of Action” are comprised of entirely conclusory
allegations that each engaged in discriminatory and retaliatory conduct, allegations that fail to
meet the pleading requirements. For example, plaintiff pleads that Bradley and Barraco, “under
color of law, personally interfered with and deprived plaintiff of his constitutional rights,
including the rights: to enjoy freedom of speech, to petition his government for redress of his
grievances, to be secure in his person, to enjoy privacy, to be free from deprivation of life, liberty
and property without due process of law.” This does not come anywhere close to meeting the
standards in Twombly and Iqbal.
Plaintiff’s opposition did not include any semblance of a substantive argument in
response. Rather, plaintiff begins his section in response with the following language: “The
bane of all Plaintiff’s civil rights litigators is the so called Plausibility standard.” His only
engagement with the instant action is to say that “the facts alleged in the complaint give the
history leading up to Plaintiff’s termination.” That is as close as plaintiff comes to rebutting
defendants’ arguments, because the remainder of his section is devoted to “[t]he paramount
example of what the City of New York claims is implausible[,] . . . the time honored ‘Serpico’
factor.” Plaintiff concludes his summary of Frank Serpico’s life with a parenthetical, advising
that he has discussed this matter with Mr. Serpico. Plaintiff did not respond at all against
defendants’ arguments. Therefore, the claims against Bradley and Barraco are “deemed either
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abandoned or, in any event, without merit,” given that they fail to meet any pleading standard,
much less a plausibility standard. Cortes v. City of New York, 148 F. Supp. 3d 248, 255
(E.D.N.Y. 2015).
B. The Complaint Fails to State a Claim Against Defendant the City of New
York.
As stated above, only three events described in the complaint remain: (i) the July 11,
2013 retraining incident; (ii) the November 2013 rescission of plaintiff’s transfer back to his
Ladder; and (iii) plaintiff’s termination from the FDNY effective May 1, 2014. All three are
pled as retaliatory actions.
Without even having to reach the merits of the retaliation claims, the claims must be
dismissed. Defendants argue, just as they did with respect to Bradley and Barraco, that the
complaint lacks factual allegations suggesting that there was any retaliatory animus. Defendants
argue that plaintiff’s allegations following his reassignment to Headquarters amount to “nothing
more than the recitation of a false syllogism: (1) I am (insert name of a protected class); (2)
something bad happened to me at work; (3) therefore, it happened because I am (insert name of
protected class).” Bermudez v. City of New York, 783 F. Supp. 2d 560, 581 (S.D.N.Y. 2011).
Plaintiff here, again, has failed to respond to defendants’ arguments, and as summarized above,
instead used his response to discuss Frank Serpico. Just as above, plaintiff’s failure to oppose
these arguments means that he has abandoned them. Cortes, 148 F. Supp. 3d at 255; see also
Thomas v. N.Y.C. Dep’t of Educ., 938 F. Supp. 2d 334, 354 (E.D.N.Y. 2013) (“A court ‘may,
and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant’s
arguments that the claim should be dismissed’”) (collecting cases); Anti-Monopoly, Inc. v.
Hasbro, Inc., 958 F. Supp. 895, 907 n. 11 (S.D.N.Y. 1997) (“[T]he failure to provide argument
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on a point at issue constitutes abandonment of the issue . . . which provides an independent basis
for dismissal.”).
Even if the claims were not abandoned, they fail independently. Retaliation is actionable
under Title VII when the plaintiff “engaged in a protected activity, such as complaining about
race discrimination” and, as a result, his employer took an adverse action in retaliation. See
Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). To establish a prima facie case
of retaliation under Title VII, a plaintiff must show “(1) participation in a protected activity; (2)
that the defendant knew of the protected activity; (3) an adverse [retaliatory] action; and (4) a
causal connection between the protected activity and the adverse employment action.” Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010) (quoting Jute v. Hamilton Sunstrand Corp., 420 F.3d
166, 173 (2d Cir. 2005)). While plaintiff need not establish a prima facie case to survive a
motion to dismiss, “the court should still consider the elements of a prima facie case of
retaliation in making a determination of whether a plaintiff’s complaint gives a defendant fair
notice of the grounds of his claim.” Corbett v. Napolitano, 897 F. Supp. 2d 96, 111 (E.D.N.Y.
2012). Plaintiff’s complaint and his opposition to the instant motions set forth the instances of
perceived mistreatment that he suffered while working at the FDNY, but “Title VII is not a
general bad acts statute.” Wimmer v. Suffolk Cty. Police Dep’t, 176 F.3d 125, 135 (2d Cir.
1999) (quotation omitted). Plaintiff has done nothing more than allege disparate bad acts that
neither separately nor together amount to a viable claim.
First, with respect to the July 2013 incident where plaintiff sustained burns to his body
during a retraining exercise, plaintiff describes the event as retaliatory, but he has come nowhere
close to alleging any of the elements of retaliation. During oral argument, plaintiff
acknowledged that the claim was not intentional, conceded that it was not actionable, and
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abandoned the claim, instead characterizing the episode as included for the sake of historical
context. Given that plaintiff has abandoned his argument with respect to the July 2013 injury,
the Court dismisses all claim against the City arising from this incident.
Second, moving on to the remaining two incidents, the rescission of the transfer and the
termination, plaintiff has failed to allege that either was retaliatory. To demonstrate an adverse
action, “‘a plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.’” Fincher v. Depository Trust &
Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006)). By requiring a showing of material
adversity, Burlington preserves the principle that Title VII “does not set forth a general civility
code for the American workplace.” Burlington, 548 U.S. at 68, 126 S. Ct. at 2415 (internal
quotation marks omitted). “[P]etty slights or minor annoyances that often take place at work and
that all employees experience” do not constitute actionable retaliation. Id.
Regarding the rescission of the transfer back to plaintiff’s Ladder, even if the Court
accepts for argument’s sake that the rescission could be an adverse action, plaintiff has not pled
any causal connection between that action and plaintiff’s EEO complaints in 2008 and 2010.
Claims of retaliation require facts supporting an inference that there is “a causal connection
between the protected activity and that adverse action.” Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam). “‘[P]roof of causation can
be shown either: (1) indirectly, by showing that the protected activity was followed closely by
discriminatory treatment, or through other circumstantial evidence such as disparate treatment of
employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory
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animus.’” Hicks, 593 F.3d at 170 (quoting Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117
(2d Cir. 2000)).
Here, plaintiff cannot connect his protected activity to the rescission. First, he cannot
show indirect causation as the rescission came three years after the protected activity at the
shortest and five years at the longest. Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013)
(finding that a “temporal gap of almost two years between the date of [the] protected activity and
the alleged retaliation [to be] too great to give rise to an inference of causation”); see also Clark
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 1511 (2001) (“The cases that
accept mere temporal proximity between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be very close” and action taken “20 months
later suggests, by itself, no causality at all.”). Accordingly, three to five years is far too long to
argue causation.
Further, plaintiff has failed to provide the alternative indirect causation pleading: He has
not pled any factual allegation relating to the treatment of other employees who engaged in
similar conduct to plead indirect causation. Second, plaintiff has failed to plead direct causation
through retaliatory animus. He alleges retaliation in conclusory fashion, but a conclusory
allegation that the action was retaliation is not sufficient under either Twombly or Iqbal.
Accordingly, plaintiff’s retaliation claims arising from the rescission of the transfer are dismissed
for failure to state a claim.
For the same reasons as above, plaintiff has failed to plead any causation between his
termination and his EEO activity. His termination came in 2014, which means his termination
was four years after the protected activity at the shortest and six years at the longest. This is
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again far too long to demonstrate causation. Summa, 708 F.3d at 128; Clark Cty. Sch. Dist., 532
U.S. at 273-74, 121 S. Ct. at 1511. Plaintiff has not alleged any circumstantial facts either, nor
has he pleaded retaliatory animus apart from bare legal conclusions of retaliation. Finally,
plaintiff cannot tie his termination to his 2014 EEO complaint, as plaintiff references his
termination in the EEO complaint such that it is quite apparent that his termination was not a
result of the 2014 complaint. As a result, plaintiff’s retaliation claims arising from his
termination are also dismissed for failure to state a claim.
V.
Supplemental Jurisdiction and Plaintiff’s State Law Claims
Having dismissed all of plaintiff’s federal claims, the Court considers whether to exercise
supplemental jurisdiction over plaintiff’s claims under NYSHRL and NYCHRL. 28 U.S.C.
§ 1367(c)(3). Plaintiff’s NYSHRL claims are subject to the same standard as claims under Title
VII, and as a result, are dismissed with prejudice for the same reasons that his federal claims are
dismissed. See, e.g., Kelly, 716 F.3d at 14. NYCHRL, however, has a lower threshold of proof
than its federal counterparts; therefore, the claims cannot be dismissed on the merits like the
NYSHRL claims. See, e.g., Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715
F.3d 102 (2d Cir. 2013). As a result, plaintiff’s NYCHRL claims are dismissed without
prejudice to refiling in state court.
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CONCLUSION
Plaintiff’s federal and NYSHRL claims are dismissed with prejudice, and plaintiff’s
NYCHRL claims are dismissed without prejudice. The Clerk is directed to enter judgment
accordingly.
SO ORDERED.
Digitally signed by Brian
M. Cogan
U.S.D.J.
Dated: Brooklyn, New York
October 21, 2016
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