Thompson v. MTA New York City Transit et al

Filing 35

MEMORANDUM DECISION AND ORDER. I dismiss the plaintiff's title VII claims, and decline to exercise jurisdiction over the plaintiff's remaining state law claims. Ordered by Judge Ann M. Donnelly on 10/17/2018. (Greene, Donna)

FILED
1
CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y,
UNITED STATES DISTRICT COURT

^ OCT 1 7 2018 -k

EASTERN DISTRICT OF NEW YORK
X

BROOKLYN OFFICE

TRAMELL THOMPSON,
Plaintiff,
MEMORANDUM
DECISION AND ORDER

- against17-CV-5857(AMD)
(RLM)
JOHN LANDERS,WILLIAM RIVERA,and
MTA NEW YORK CITY TRANSIT,
Defendants.

X

ANN M.DONNELLY,United States District Judge:

The plaintiff, Tramell Thompson, brings this action against MTA New York City Transit,

and MTA employees John Landers and William Rivera,' alleging violations of Title VII ofthe
Civil Rights Act of 1964, New York State Human Rights Law § 296, and New York City Human

Rights Law § 8-107, as well as defamation and libel. On April 26,2018,the plaintifffiled an
amended complaint to address deficiencies the defendants identified in their pre-motion letters to
the Court. (ECF No. 22.) The defendants move to dismiss the amended complaint in its entirety.
(ECF Nos. 24, 25.) For the reasons that follow, I dismiss the plaintiffs Title VII claims and

decline to exercise supplemental jurisdiction over the remaining claims.
BACKGROUND*

The plaintiffstarted working for the MTA on September 29, 2013,and became a
conductor sometime before 2016. (ECF No. 22

9,12.) In February of2016,the plaintiff

'The plaintiff does not state whether Landers and Rivera are supervisors or co-workers.(See ECF No.22
117, 8.)

*A11 facts are taken from the amended complaint and its attached exhibits. (ECF No. 22.)
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became a shop steward for his Union, TWU-Local 100, and "became vocal in his opposition to a
contract between his Union" and the MTA. (ECF No. 22

10-11.) The plaintiff continued to

express his opinion that the Union and the MTA were "working together to the detriment of
black employees."(M ^ 13.) In November of2016, he posted a photograph of himself wearing
a sweatshirt that said "Gentrify My Paycheck" on Facebook. (Jd.)
After the plaintiff announced on a radio show that he would not strike with the Union

because he felt that "the negotiation process was unfair" {id. ^ 14), his fellow employees sent
him insulting messages on Facebook. On December 17,2016, John Landers, a white MTA

employee, told the plaintiff, by way of a private Facebook message, that his "ilk has no chance of

winning EVER" and not to "shoot [himjself in the foot so early in [his] career." {Id. ^ 16; ECF

No. 22-2.) Landers also sent an image of black men in "hip-hop" outfits with the caption"We be
like f[***]in those MTA crackers up if we don't get ours." (ECF No. 22 ^ 15; ECF No. 22-2.)
He also sent a poster that labeled the plaintiff a "scab," and someone who "betrayed his Master."

(ECF No. 22 H 17.)^ On December 30,2016, William Rivera, another MTA employee, posted a
picture ofthe plaintiff with the caption,"Beware ofthis Sexual Predator." {Id.f 18; ECF No.
22-3.) The plaintiff replied on Facebook that Rivera could not"even gamer solidarity within
[his] own union." (ECF No. 22-4.) Rivera responded by calling the plaintiff a "Tranny," who
was "too new in this business to even know what[he was] talking about." (ECF No.22^ 19;
ECF No. 22-4.) The plaintiff claims that both Landers and Rivera made flyers out ofthese

offensive images and comments and distributed them at work. (ECF No.22

15-20.)

On January 7, 2017,the plaintiff reported Landers' and Rivera's conduct to the MTA.
{Id. H 20.) He filed a second complaint ten days later. {Id. TI21.) On January 27,2017,the MTA

^ The defendant MTA replicated the message in its reply brief, and points out that it does not include the
"betrayed his Master" language that the plaintiff alleges. (ECF No.33 at 4.)

informed the plaintiff that it was not going to "open an investigation into this matter" because it
involved "off-duty, off-premises conduct on social media," which "fall[s] outside ofthe [MTA's]
purview." (ECF No. 22-5.)

On January 29,2017,the plaintiff requested that the Equal Employment Opportunity

Commission("EEOC")bring discrimination charges against the defendants. (ECF No. 22 ^ 24.)

On September 19, 2017,^ the EEOC issued the plaintiff a right-to-sue letter(ECF No.22 ^ 25;
ECF No. 22-6), and on October 6,2017,the plaintiff brought this action, claiming, among other
things, that the defendants engaged in racial discrimination, sexual harassment, and created a
hostile work environment in violation of Title VII and New York state and city laws. (ECF No.
1.) On April 26,2018,the plaintiff filed an amended complaint(ECF No. 22), which the
defendants now move to dismiss. (ECF Nos. 24, 25.)
DISCUSSION

To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,570(2007).
This means that it must "plead[] factual content that allows 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)(citing Twombly^ 550 U.S. at 556). While it does not require "detailed factual
allegations," this standard requires more than "a formulaic recitation ofthe elements of a cause
of action" and more than an "unadorned, the-defendant-unlawfully-harmed-me accusation."
Iqbal, 556 U.S. at 678 (citing Twombly., 550 U.S. at 555). In deciding a Rule 12(b)(6) motion to

dismiss, the Court "must accept as true all ofthe allegations contained in the complaint;"
however,this tenet does not apply to legal conclusions. Iqbal, 556 U.S. at 678 (internal citations

^ The amended complaint alleges that the letter was issued on September 19, 2017(ECF No.22 ^ 25), but
the attached letter is dated August 31,2017(ECF No.22-6).
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omitted).
L

Title VII Claims

Title VII makes it unlawful for an employer to "discriminate against any individual with
respect to his compensation, terms, conditions, or privileges ofemployment" because ofthe
individual's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a){I). Under

Title VII, a plaintiff may assert claims of"direct discrimination (the so-called 'quid pro quo'
variety),... and 'hostile workplace environment' harassment." Leibovitz v. New York City

Transit Auth., 252 F.3d 179, 188(2d Cir. 2001)(citing Carrero v. New York City Housing Auth.,
890 F.2d 569,577(2d Cir. 1989)); Deberry v.

No. I2-CV-625I,2016 WL 3840673, at

*5(E.D.N.Y. July 12, 2016), ajfd sub nom. DeBerry v. Brookdale Hosp. Med. Ctr., 699 F.
App'x 72(2d Cir. 2017). The plaintiff alleges that Landers' and Rivera's conduct constituted
race and gender discrimination and created a hostile work environment, which the MTA

condoned by refusing to fire or reprimand them. (ECF No. 22

27-35.) These claims do not

survive the defendants' motions to dismiss.

As an initial matter, individuals cannot be held liable under Title VII, so the claims

against defendants Landers and Rivera must be dismissed. Guerra v. Jones, 421 F. App'x 15, 17
(2d Cir. 2011)(Title VII does not "subject[] individuals, even those with supervisory liability
over the plaintiff, to personal liability,")(citing Tomka v. Seiler Corp.,66 F.3d 1295,1313(2d
Cir. 1995)); Patterson v. County ofOneida, NY,375 F.3d 206,221 (2d Cir. 2004)("[W]e note
that individuals are not subject to liability under Title VII.")(citation and internal quotation
marks omitted); Figueroa v. RSquaredNY, Inc., 89 F. Supp. 3d 484,492(E.D.N.Y. 2015)

("Individual defendants may not be held personally liable for alleged violations of Title VII.")
(citations omitted).

Nor has the plaintiff stated a discrimination claim against the MTA. To establish a prima
facie case of discrimination under Title VII, a plaintiff must show that "(1)be is a member of a
protected class;(2)he was qualified for the position he held;(3)he suffered an adverse

employment action; and (4)the adverse action took place under circumstances giving rise to an
inference of discrimination," Ruiz v. Cnty. ofRockland,609 F.3d 486,492(2d Cir. 2010)

(citation omitted); see Deberry,2016 WL 3840673, at *5."^ The plaintiff does not claim that he
suffered any adverse employment action, much less an adverse employment action that was
motivated by racial or gender discrimination; therefore, his direct discrimination claims are

dismissed.^ MacDonnell v. Liberty Cent. Sck Dist., 115 F. App'x 489,491 (2d Cir. 2004)
(affirming dismissal of Title Vll claim because "[the plaintiff] fail[ed] to state a prima facie case

as she d[id] not allege an adverse employment action"); Jaeger v. N. Babylon Union Free Sck
Dist., 191 F. Supp. 3d 215,229(E.D.N.Y. 2016)(Court dismissed discrimination claim where

"the complaint fail[ed] to state facts to make it plausible that Jaeger suffered an adverse
employment action."); Argeropoulos v. Exide Techs., No.08-CV-3760,2009 WL 2132443, at
*4(E.D.N.Y. July 8,2009)(same).

The plaintiffs hostile work environment claim is similarly flawed. "[l]t is 'axiomatic'
that in order to establish a...hostile work environment under Title Vll, a plaintiff must

demonstrate that the conduct occurred because of[his]" protected status. Alfano v. Costello, 294
F.3d 365, 374(2d Cir. 2002)(quoting Brown v. Henderson,257 F.3d 246, 252(2d Cir. 2001)).

'* "[A] Title VII plaintiff need not allege specific facts establishing each element ofa prima facie case of
discrimination;" however he must allege that "the employer took adverse action against him and ...his race, color,
religion, sex, or national origin was a motivating factor in the employment decision." Pothen v. Stony Brook Univ.,
211 F. Supp. 3d 486,493(E.D.N.Y. 2016)(citing Vega v. Hempstead Union Free Sck Dist., 801 F.3d 72,84, 86
(2d Cir. 2015))(internal quotation marks omitted).

^ The plaintiffs claim that the MTA engaged in racial discrimination by refusing to punish Landers and Rivera and
that it has punished African-American employees for similar behavior is entirely speculative.(See ECF No.22 ^
23.)

Further,"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 of
the victim's employment and create an abusive working environment.'" Littlejohn v. City ofNY,

795 F.3d 297,320-21 (2d Cir. 2015)(citing Harris v. Forklift Sys., Inc., 510 U.S. 17,21 (1993)).

A court considering whether a work environment is hostile should consider the totality of the
circumstances, including "(1)the frequency ofthe conduct,(2)the severity ofthe conduct,(3)
whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and

(4) whether the conduct unreasonably interferes with the employee's work performance."
Brennan v. Metro. Opera Ass'n, 192 F.3d 310,319(2d Cir. 1999){citing Harris, 510 U.S. at 23).

While the messages that Landers and Rivera sent were tasteless and offensive, the
plaintiff has not established that the defendants harassed him because of his race or gender.

Rather, it is clear from the complaint that Landers and Rivera were responding to the plaintiffs
criticism ofthe Union. Neither Landers nor Rivera said anything to the plaintiff until he
announced that he would not strike with the Union. (ECF No. 22

14-19.) Landers' messages

referenced the plaintiffs career and other MTA employees. (ECF No. 22-2.) Rivera's remeirks
were in response to the plaintiffs taunt that Rivera could not"even gamer solidarity within [his]
own union." (ECF No. 22-4.)

Moreover,the plaintiff does not allege that Rivera used the terms "sex offender" and

"Tranny"^ because ofthe plaintiffs gender. Instead, Rivera leveled these insults to embarrass
and insult the plaintiff—apparently because oftheir disagreement about the Union. See Dingle v.
Bimbo Bakeries, No. 1 l-CV-2879,2012 WL 2872161, at *4, n.l (E.D.N.Y. July 12,2012)(Co-

workers' portrayal ofthe plaintiff as a "pervert and a homosexual" did not "suggest gender-

® The plaintiff does not claim that Rivera used this term to target the plaintiffs sexual orientation or gender identity.
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based animus towards men in the workplace."); BorsJd v. Staten Island Rapid Transit, No.04CV-3614,2006 WL 3681142, at *3(E.D.N.Y. Dec. 11,2006)(Court dismissed gender-based
discrimination claim where a supervisor and co-workers posted cartoons ofthe plaintiff in
sexual situations and cross-dressing because these acts demonstrated "personal animus against
Mr. Borski,.. and not gender-based animus against men."). Rivera's comments do not

constitute sex-based discrimination merely because they include sexual content. Dingle,2012
WL 2872161, at *4 ("The fact that the harassment suffered by the plaintiff was sexual in nature .
.. does not make it gender-based discrimination.")(citation omitted); see Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75,80(1998)
("We have never held that workplace harassment..
.is automatically discrimination because ofsex merely because the words used have sexual
content or connotations.").
Even if the plaintiff had sufficiently alleged race- or gender-based animus, the incidents
were not "severe" or "pervasive" enough to create a hostile work environment. Defendants

Landers and Rivera allegedly distributed the flyers^ on three separate occasions—^December 17,
December 30, and an unspecified date—over the span ofone month. (ECF No.22

15-19.)

These isolated acts over a short period oftime were not pervasive and do not establish a hostile

work environment. See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58(2d Cir. 2004)
(holding that three incidents of sexual harassment over a one-month period "were few and
occurred over a short span oftime" and "far from being pervasive"); Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62,69(2d Cir. 2000)("Incidents that are few in number and that

occur over a short period oftime may fail to demonstrate a hostile work environment.")

' MTA argues that the offending Facebook messages and pictures were never distributed at the
The
plaintiffs workplace, and therefore, the MTA cannot be held liable for co-worker disputes that occurred
offsite. (ECF No. 30 at 7-9.) Because at the motion to dismiss stage, the Court"must accept as true all
ofthe allegations contained in the complaint,"Iqbal, 556 U.S. at 678,1 do not address this argument.

(citations and internal quotation marks omitted). Moreover,the plaintiff does not specify how or
when the posters were distributed, what information they contained, or the effect—^if any—^they
had on the plaintiffs ability to work. Without more, distributing the flyers in the plaintiffs

workplace does not amount to a hostile work environment. See Caver v. City ofTrenton,420
F.3d 243,263(3d Cir. 2005)("[I]nappropriate racist comments, graffiti, and flyers ... was
insufficient...to establish a hostile work environment."). The few incidents in a one-month

period did not "alter the conditions ofthe victim's employment," and thus fall short ofthe
requisite severity and pervasiveness under Title VII. Littlejohn, 795 F.3d at 320-21.
The conduct about which the plaintiff complains stemmed from personal conflict and
union disputes, not discrimination. While "Title VII prohibits discrimination,...it is not a
shield against harsh treatment at the work place." Stepheny v. Brooklyn Hebrew Sch.for Special
Children, 356 F. Supp. 2d 248, 262(E.D.N.Y. 2005)("The plaintiff cannot turn a personal feud
into a sex discrimination case.")(citations and internal quotation marks omitted); see Oncale,

523 U.S. at 80("Title VII does not prohibit all verbal or physical harassment in the workplace; it
is directed only at 'discriminat[ion]... because of...race [or]... sex.'"). Accordingly, the

plaintiffs Title VII claims are dismissed.^
II.

Remaining State Law Claims

"Where a court dismisses all claims over which it has original jurisdiction, it may,in its

discretion, decline to exercise supplementaljurisdiction over remaining claims." Wolfinger v.
Consolidated Edison Co. ofNew York, Inc., No. 17-CV-1710,2018 WL 3637964, at *12

(E.D.N.Y. July 31, 2018)(citing 42 U.S.C. § 1367(c)(3)). In deciding whether to exercise

® The defendants also argue, relying on extrinsic documents,that the Title VII claims should be dismissed
because the plaintiff has not exhausted his EEOC remedies(ECF No.30 at 6-7)and his EEOC right-tosue letter did not name the individual defendants(ECF No. 24-5 at 6-8). Because the Title VII claims are
dismissed on other grounds, I do not reach these arguments.
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supplemental jurisdiction, district courts should balance the values ofjudicial economy,
convenience, fairness, and comity. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 343
(1988); United Mine Workers ofAm. v. Gibbs, 383 U.S. 715, 726(1966)("Needless decisions of

state law should be avoided both as a matter of comity and to promote justice between the
parties, by procuring for them a surer-footed reading of applicable law."); Kolari v. New YorkPresbyterian Hosp.,455 F.3d 118,123(2d Cir. 2006)("[FJederal policy concerns may argue in

favor of exercising supplemental jurisdiction even after all original—jurisdiction claims have been
dismissed."). Because the federal claims have been dismissed, 1 decline to exercise supplemental
jurisdiction over remaining state claims. Klein & Co. Futures. Inc. v. Bd, ofTrade,464 F.3d
255,262(2d Cir. 2006)("[WJhere, as here, the federal claims are eliminated in the early stages
of litigation, courts should generally decline to exercise pendent jurisdiction over remaining state
law claims.").
CONCLUSION

For the reasons above, I dismiss the plaintiffs Title Vll claims, and decline to exercise
jurisdiction over the plaintiffs remaining state law claims.

SO ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge

Dated: Brooklyn, New York
October 17, 2018