Johnson v. Long Island University

Filing 15

MEMORANDUM & ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, LIU's motion to dismiss (Docket Entry 5) is GRANTED IN PART and DENIED IN PART. LIU's motion to dismi ss is GRANTED as to (1) Plaintiff's Title VII claims based on conduct occurring prior to March 28, 2012; (2) Plaintiff's Title VII, Section 1981, and NYSHRL claims based on gender; (3) Plaintiff's Title VII, Section 1981, and NYSHRL cl aims based on allegations that do not state adverse employment actions, as explained above; and (4) Plaintiff's hostile work environment claims. All of these claims are DISMISSED WITH PREJUDICE except that Plaintiff is granted leave to replead c ertain adverse employment actions identified in this Memorandum and Order. If Plaintiff wishes to replead, he must do so within thirty (30) days of the date of this Memorandum and Order. If he fails to do so, claims based on these alleged adverse employment actions will be dismissed with prejudice. So Ordered by Judge Joanna Seybert on 9/30/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
TREMAINE JOHNSON,
Plaintiff,
MEMORANDUM & ORDER
13-CV-2464(JS)(GRB)

-againstLONG ISLAND UNIVERSITY,

Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Gregory R. Preston, Esq.
Preston & Wilkins, PLLC
3000 Hempstead Turnpike, Suite 317
Levittown, NY 11756
For Defendant:

Matthew Aaron Siebel, Esq.
Long Island University
700 Northern Boulevard
Greenvale, NY 11548

SEYBERT, District Judge:
Plaintiff Tremaine Johnson (“Plaintiff”) commenced this
action

against

his

current

employer,

defendant

Long

Island

University (“LIU”), alleging disparate treatment and hostile work
environment on account of his race and gender in violation of:
(1) Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq.; (2) 42 U.S.C. § 1981; and (3) the New York
State Human Rights Law (“NYSHRL”), N.Y. EXEC. LAW § 290 et seq.
Currently pending before the Court is LIU’s motion to dismiss the
Complaint for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6).

(Docket Entry 5.)

For the following

reasons, LIU’s motion to dismiss is GRANTED IN PART and DENIED IN
PART.
BACKGROUND
I.

Factual Background1
Plaintiff is an African-American male currently employed

by LIU, a private university in Greenvale, New York. (Compl. ¶¶ 34.)

In 2012, Plaintiff applied for the positions of Assistant

Director of Residence Life and Resident Hall Director.

(Compl.

¶ 9.) LIU hired Plaintiff for the Hall Director position. (Compl.
¶ 10.)

However, Plaintiff claims that LIU did not interview him

for the Assistant Director position even though he was qualified
for that position and instead gave the position to a less-qualified
individual, Sean Lazarus (“Lazarus”).

(Compl. ¶¶ 11-12.)

The

Complaint does not identify Lazarus’ race but it does allege that
Shana Eustacy was only one other African American “staff member”
at LIU besides Plaintiff.

(Compl. ¶ 20.)

The Complaint then alleges several incidents during the
course of Plaintiff’s employment that Plaintiff claims constitute
disparate treatment and/or created a hostile work environment on
account of his race and gender.

In June 2011, Jennifer Fuoco

(“Fuoco”), LIU’s Associate Director of Residence Life, allegedly

1

The following facts are taken from the Complaint and are
presumed to be true for the purposes of this Memorandum and
Order.
2

told Plaintiff that he could not wear shorts, jeans, or sneakers
while working.

(Compl. ¶ 15.)

However, “days later,” Plaintiff

observed Fuoco wearing capris.

(Compl. ¶ 16.)

When Plaintiff

“asked if that meant he could at least wear Khaki shorts,” Fuoco
said

“no”

because,

according

to

Fuoco,

temperature attire was a women thing.”

“dressing

(Compl. ¶ 16.)

in

cool

Plaintiff

also alleges that he later observed Yuri Gulzman “[come] to a
mandatory Resident Assistant training session to teach a course in
shorts and sneakers, while others like [Plaintiff] was [sic]
dressed in business casual attire.”

(Compl. ¶ 17.)

He similarly

claims that Dan Ugenti (“Ugenti”) “wore shorts and sneakers during
his scheduled office hours when it was communicated to [Plaintiff]
that the dress code even during the summer was the standard attire
of slacks, collared shirt, and dress shoes.”

(Compl. ¶ 18.)

In September 2011, Plaintiff asked Fuoco “about working
with the athletic department.”

(Compl. ¶ 19.)

Fuoco advised

Plaintiff that he was not allowed to work with athletic teams
during “the scheduled work hours” of 9:00 a.m. to 5:00 p.m. and
that he also could not receive compensation for working with other
departments on campus.

(Compl. ¶ 19.)

However, Plaintiff claims

that “[s]imilarly situated employees who are not in a protected
class . . . were not also restricted.”

(Compl. ¶ 19.)

As an

example, during the 2012 spring semester, Kelly Carpino “interned
for a non-student affair related organization” two to three times
3

per week, which required her to leave work at 1:00 p.m.
¶ 19.)

(Compl.

Additionally, during the 2012 fall semester, Lazarus and

Ugenti allegedly taught “College 101” courses during the day for
compensation.

(Compl. ¶ 20.)

Plaintiff also complains that LIU denied his requests
“for special projects and trainings” but provided such training to
other,

unidentified

“similarly

situated

employees.”

(Compl.

¶ 13.)

Similarly, during the 2012 fall semester, Plaintiff spoke

to two officials in LIU’s athletic department about volunteering
for the department but “neither [official] would return his emails
or phone calls.”

(Compl. ¶ 35.)

In the Spring of 2012, Plaintiff was injured during a
student-staff basketball game and was out of work for five months
on workers compensation.

(Compl. ¶ 22.)

When he returned to work

in September 2012, LIU required him to make up the time he missed.
(Compl. ¶¶ 21, 24.)

This required Plaintiff “to take seven (7)

weeks of duty during the fall semester” while “no other Residence
Hall Directors had to take more than 2 weeks.”

(Compl. ¶ 23.)

When Plaintiff complained that he was experiencing pain due to the
increased duty schedule, Fuoco “stated that she had spoken with a
Human Resources representative . . . and was told if [Plaintiff]
was unable to do duty, then he could not keep his position.”
(Compl. ¶¶ 26-27.)

4

Plaintiff also received a performance review upon his
return in September 2012.

(Compl. ¶ 31.)

According to Plaintiff,

he was told that “he needed improvement” “in the area of student
life involvement.”

(Compl. ¶ 31.)

Additionally, Fuoco “referred

to [Plaintiff] as a schmoozer because he interacted with the other
departments on a regular basis,” and he “was told that he needed
to focus more on administrative duties than schmoozing with other
departments.”

(Compl. ¶ 31.)

He “was given an average for

professional etiquette,” which was the same score given to Ugenti.
(Compl. ¶ 32.)
Plaintiff additionally alleges that on November 4, 2012,
he “wanted to leave after work and go vote in Brooklyn,” but he
“was unable to vote in fear of losing his job.”

(Compl. ¶ 33.)

Thus, Plaintiff “left campus at 2 pm to make an attempt to vote
and was required to take a half day of work.”

(Compl. ¶ 34.)

However, his co-workers, Scott Towers and Dan Caccavale, left the
campus at 12:00 p.m., did not return until after 5:00 p.m., and
were not “required to take a half day.”

(Compl. ¶ 34.)

The Complaint is not entirely clear but Plaintiff also
appears to allege that he was not able to take pain medication
while he was on duty because it would make him drowsy and therefore
unable to respond to potential emergency phone calls during the
night.

(Compl.

¶¶

29-30.)

He

claims

that

an

unidentified

individual “expressed to all Residence Hall Directors that if they
5

[could not] be reached on duty their job would be in jeopardy,”
and that on November 1, 2012, Fuoco allegedly did not respond to
a call while she was on duty because she took medication that
caused her to fall into a “deep sleep.”

(Compl. ¶ 30)

Finally, in the Fall of 2011, Fuoco accused Plaintiff of
having

knowledge

concerning

an

“inappropriate”

relationship

between a fellow hall director and a student and told him that “he
may

be

disciplined

information.”

for

(Compl.

not
¶

being

39.)

forth

Fuoco

coming

advised

[sic]

with

that

hall

him

directors were not “allowed to have personal relationships with
students.”
director

(Compl. ¶ 40.)

has

a

“known

Plaintiff claims that another hall

relationship”

with

a

current

student.

(Compl. ¶ 41.)
II.

Procedural Background
Plaintiff filed an administrative complaint with the

Equal

Employment

Opportunity

Commission

(“EEOC”)

discrimination on account of race and disability.
Docket Entry 6, Ex. D.)

alleging

(Siebel Decl.,

On or about January 29, 2013, Plaintiff

received a “Notice of Right to Sue” from the EEOC.

(Compl. ¶ 7.)

On April 23, 2013, Plaintiff filed the Complaint in this action,
which includes claims for disparate treatment and hostile work
environment based on race and gender under Title VII, Section 1981,

6

and the NYSHRL.2

(Compl. ¶¶ 44-64.)

currently pending before the Court.

LIU’s motion to dismiss is
(Docket Entry 5.)

DISCUSSION
The Court will first set forth the applicable legal
standard

before

turning

to

LIU’s

motion

to

dismiss

more

specifically.
I.

Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007);
accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).

First,

although the Court must accept all allegations as true, this
“tenet”

is

“inapplicable

to

legal

conclusions;”

thus,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678; accord Harris, 572 F.3d at 72.

Iqbal,

Second, only

complaints that state a “plausible claim for relief” can survive
a Rule 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether a complaint does so is “a context-specific

2

Plaintiff has voluntarily discontinued his claims under the New
York City Human Rights Law, N.Y. CITY ADMIN. CODE § 8–107 et seq.
(See Pl.’s Opp. Br., Docket Entry 11, at 5 n.1.)
7

task that requires the reviewing court to draw on its judicial
experience and common sense.”
II.

Id.; accord Harris, 572 F.3d at 72.

Timeliness of Title VII Claims
As an initial matter, LIU argues that some of Plaintiff’s

Title VII claims are time-barred.
at 7-8, 15.)

(Def.’s Br., Docket Entry 5-2,

The Court agrees.

“An aggrieved employee wishing to bring a Title VII claim
in district court must file an administrative complaint with the
EEOC within 300 days of the alleged discriminatory act.” Petrosino
v. Bell Atl., 385 F.3d 210, 219 (2d Cir. 2004) (citing Elmenayer
v. ABF Freight Sys., Inc., 318 F.3d 130, 133 (2d Cir. 2003)).
Under

Title

VII,

“[e]ach

incident

of

discrimination . . . constitutes a separate actionable ‘unlawful
employment practice.’”

Lewis v. N.Y. City. Transit Auth., --- F.

Supp. 2d ----, 2014 WL 1343248, at *10 (E.D.N.Y. Mar. 31, 2014)
(first set of internal quotation marks omitted) (quoting Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061,
153 L. Ed. 2d 106 (2002)).

Thus, “Title VII ‘precludes recovery

for discrete acts of discrimination . . . that occur outside the
statutory time period, irrespective of whether other acts of
discrimination

occurred

within

the

statutory

time

period.’”

Jagmohan v. Long Island R.R. Co., No. 12-CV-3146, 2014 WL 4417745,
at *8 (E.D.N.Y. Sept. 8, 2014) (emphasis and ellipsis in original)

8

(quoting Mark v. Brookdale Univ. Hosp., No. 04-CV-2497, 2005 WL
1521185, at *16 (E.D.N.Y. June 22, 2005)).
Because Plaintiff filed his EEOC charge on January 22,
2013, any conduct occurring before March 28, 2012 is time-barred
and cannot serve as the basis for a Title VII claim.

LIU argues

that several allegations in the Complaint are untimely under Title
VII, including that LIU failed to interview and hire Plaintiff for
the Associate Director position; that Fuoco told Plaintiff that he
could not wear shorts, jeans, and sneakers to work; that Fuoco
reprimanded Plaintiff for allegedly withholding information; and
that Fuoco told Plaintiff he could not work with other departments
on campus.

(Def.’s Br. at 7.)

Plaintiff does not argue that these

allegations are timely, nor does he argue that any of these
allegations

are

saved

by

the

continuing

violation

doctrine.

Rather, he argues that these allegations may be used as background
evidence to support his timely Title VII claims.

(Pl.’s Br. at

13.)
Plaintiff is correct that Title VII “does not ‘bar an
employee from using . . . prior acts [that are untimely] as
background evidence in support of a timely claim.’”

Jagmohan,

2014 WL 4417745, at *8 (alteration in original) (quoting Morgan,
536 U.S. at 113); see also id. (“[B]ecause plaintiff filed the
EEOC charge on February 24, 2011, any acts occurring on or after
April 30, 2010, are timely under Title VII.
9

Earlier acts, such as

the May 2008 reassignment and alleged lack of promotion in November
2008,

are

timebarred,

but

they

may

be

used

as

background

evidence.”). However, the Court will defer ruling on whether these
allegations may be introduced as background evidence at trial, a
question that is more appropriately decided in a pre-trial motion
in limine. Accordingly, LIU’s motion to dismiss is GRANTED insofar
as it seeks dismissal of Title VII claims that seek recovery for
discrete acts of discrimination occurring before March 28, 2012.
Any such claims are therefore DISMISSED WITH PREJUDICE.3
III. Exhaustion of Administrative Remedies
LIU also argues that Plaintiff’s Title VII claims based
on gender must be dismissed because Plaintiff failed to exhaust
his administrative remedies with respect to those claims.
Br. at 14-15.)

(Def.’s

The Court agrees.

3

However, these claims may be asserted under Section 1981 and
the NYSHRL to the extent they fall within the statutes of
limitations for those statutes. See Johnson v. Cnty. of Nassau,
No. 10-CV-6061, 2014 WL 4700025, at *17 (E.D.N.Y. Sept. 22,
2014) (“[W]hereas Title VII claims must be filed within 300 days
of an EEOC filing, New York's three-year statute of limitations
governs the timeliness of claims brought under Sections
1981 . . . .”); Armstrong v. Metro. Transp. Auth., No. 07-CV3561, 2014 WL 4276336, at *14 (S.D.N.Y. Aug. 28, 2014);
Mitchell-Miranda v. City of N.Y., No. 08-CV-4031, 2011 WL
1210202, at *10 n.3 (S.D.N.Y. Mar. 24, 2011) (“The statute of
limitations for a violation of the NYSHRL is three years, rather
than 300 days measured from the date of the violation to the
filing of the administrative complaint as is true for claims
under Title VII . . . .”).

10

As noted above, a party wishing to bring a claim under
Title VII in federal court must first file an administrative
complaint with the EEOC and obtain a right to sue letter from the
EEOC.

“‘A district court only has jurisdiction to hear Title VII

claims that either are included in an EEOC charge or are based on
conduct subsequent to the EEOC charge which is ‘reasonably related’
to that alleged in the EEOC charge.’”
of

Taxation

&

Fin.,

No.

McClain v. N.Y. State Dept.

13-CV-3104,

2014

WL

4101517,

at

*5

(E.D.N.Y. Aug. 18, 2014) (quoting Butts v. N.Y. City Dep't of Hous.
Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)).

A claim is

“‘reasonably related if the conduct complained of would fall within
the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge that was made.’”

Deravin v.

Kerik, 335 F.3d 195, 200-01 (2d Cir. 2003) (quoting Fitzgerald v.
Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001)).
Here,

Plaintiff’s

EEOC

charge

alleges

that

LIU

discriminated against him based on his race and disability, (see
Siebel Decl. Ex. D.),4 and Plaintiff’s new claims based on gender

4

Neither party has produced the actual administrative complaint
Plaintiff filed with the EEOC. LIU instead has produced the
“Notice of Charge of Discrimination” prepared by the EEOC, which
indicates that Plaintiff alleged only race and disability
discrimination. (Siebel Decl. Ex. D.) However, Plaintiff does
not dispute that his charge only alleged discrimination based on
race and disability, and not based on gender. (Pl.’s Br. at 16
(“Plaintiff’s claim of gender discrimination is actionable under
the NYSHRL, although he did not raise the issue in his EEOC
Charge of Discrimination.”).
11

are not reasonably related to the race and disability claims
asserted in the EEOC charge. See Faber-Womack v. Town of Riverhead
Police Dept., No. 08-CV-2368, 2009 WL 2983022, at *3 (E.D.N.Y.
Sept. 10, 2009) (dismissing Title VII gender-based discrimination
claims because the plaintiff failed to include such allegations in
her EEOC charge and the allegations were not reasonably related to
race-based

discrimination

claims

asserted

in

EEOC

charge).

Accordingly, LIU’s motion to dismiss insofar as it seeks dismissal
of Plaintiff’s Title VII claims based on gender for failure to
exhaust administrative remedies is GRANTED.

These claims are

DISMISSED WITH PREJUDICE.
IV.

Discrimination Claims
The Court now turns to whether Plaintiff has stated

plausible discrimination claims.

As noted, Plaintiff alleges that

LIU failed to hire him for the Associate Director position and
subjected him to disparate treatment on account of his race and
gender in violation of Title VII, Section 1981, and the NYSHRL.
“Disparate treatment claims brought under Title VII, Section 1981,
and the NYSHRL are all analyzed under the same standard.”

Parra

v. City of White Plains, No. 13-CV-5544, 2014 WL 4468089, at *7
(S.D.N.Y. September 4, 2014) (citing Bowen–Hooks v. City of N.Y.,
No. 10-CV-5947, 2014 WL 1330941, at *16 & n.19 (E.D.N.Y. Mar. 31,
2014)); see also Vivenzio v. City of Syracuse, 611 F.3d 98, 106

12

(2d Cir. 2010). Thus, the Court will provide a singular discussion
of Plaintiff’s claims.5
Title VII prohibits discrimination based on, inter alia,
race or sex “with respect to . . . compensation, terms, conditions,
or privileges of employment.” 42 U.S.C. § 2000e–2(a)(1).
VII

employment

discrimination

claims

are

analyzed

Title

using

the

burden-shifting framework articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973). That framework requires a plaintiff to first
establish a prima facie case of discrimination.

To do so, a

plaintiff must show that: “(1) he 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

discrimination.”

giving

rise

to

[an]

inference

of

Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir.

2012) (alteration in the original) (quoting Ruiz v. Cnty. of
Rockland, 609 F.3d 486, 491–92 (2d Cir. 2010)).

5

With respect to

However, “‘Section 1981 does not prohibit discrimination on the
basis of gender’ . . . and instead only prohibits discrimination
based on race.” Petrisch v. HSBC Bank USA, Inc., No. 07-CV3303, 2013 WL 1316712, at *20 (E.D.N.Y. Mar. 28, 2013).
Additionally, the Court notes that “[t]he major distinction
between claims brought under Section 1981 and Title VII is that
Section 1981 provides for individual liability on the part of
non-employers.” De La Peña v. Metro. Life Ins. Co., 953 F.
Supp. 2d 393, 409 (E.D.N.Y. 2013). To the extent that there are
other differences between Section 1981 and Title VII, neither
party has raised them with the Court.
13

a prima facie case of failure to hire based on disparate treatment,
a plaintiff similarly must demonstrate “(i) that he belongs to a
[protected class]; (ii) that he applied and was qualified for a
job for which the employer was seeking applicants; (iii) that,
despite his qualifications, he was rejected; and (iv) that, after
his

rejection,

continued

to

the

qualifications.”

remained

applicants

seek

position

from

open

and

persons

of

the

employer

complainant's

Penn v. N.Y. Methodist Hosp., No. 11-CV-9137,

2013 WL 5477600, at *12 (S.D.N.Y. Sept. 30, 2013) (internal
quotation marks and citation omitted).
However, in Swierkiewicz v. Sorema N.A., 534 U.S. 506,
511, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), the Supreme Court
held that a plaintiff in an employment discrimination case need
not plead facts establishing a prima facie case of discrimination
under McDonnell Douglas in order to survive a motion to dismiss.
Swierkiewicz,

534

U.S.

at

510

(“The

prima

facie

case

under

McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.”).

Rather, “the ordinary rules for assessing the

sufficiency of a complaint apply.”

Id. at 511.

Swierkiewicz preceded Twombly and Iqbal, however, and
therefore relied on the more lenient notice pleading standard first
articulated in Conley v. Gibson, 355 U.S. 41 (1957), which Twombly
and

Iqbal

employment

rejected.

See

discrimination

Swierkiewicz,
complaint
14

534

“must

U.S.
simply

at

512

(An

‘give

the

defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.’” (quoting Conley, 355 U.S. at 47)).
Thus, the Second Circuit recently stated that “[t]he pleading
standard for employment discrimination complaints is somewhat of
an open question in our circuit.”

Hedges v. Town of Madison, 456

F. App'x 22, 23 (2d Cir. 2012) (summary order).

Although it

declined to resolve the issue,6 the Second Circuit did state that
“Swierkiewicz's reliance on Conley suggests that, at a minimum,
employment

discrimination

claims

must

meet

the

standard

of

pleading set forth in Twombly and Iqbal, even if pleading a prima
facie case is not required.”

Hedges, 456 F. App'x at 23.

Thus,

reconciling Swierkiewicz with the standards set forth in Twombly
and Iqbal, in the employment discrimination context, “a complaint
need not establish a prima facie case of employment discrimination
to survive a motion to dismiss [but] the claim must be facially
plausible and must give fair notice to the defendants of the basis
for the claim.”

Barbosa v. Continuum Health Partners, Inc., 716

F. Supp. 2d 210, 215 (S.D.N.Y. 2010) (internal quotation marks and
citation omitted); accord King v. U.S. Sec. Assocs., Inc., No. 11–
CV–4457, 2012 WL 4122025, at *4 (S.D.N.Y. Aug. 22, 2012), adopted
by 2012 WL 4327396 (S.D.N.Y. Sept. 18, 2012).

6

“A claim has facial

“We need not resolve these conflicts here, however, for
Hedges's claims fail any conceivable standard of pleading.”
Hedges, 456 F. App'x at 23.
15

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; accord
Turkman v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009).

“For this

conclusion to be drawn, a plaintiff must allege facts that allow
the court in substance to infer elements of a prima facie case.”
King, 2012 WL 4122025, at *5 (collecting cases).
Here, LIU does not dispute the first two elements of
Plaintiff’s discrimination claims--i.e., (1) that Plaintiff, as an
African American, is a member of a protected class, and (2) that
Plaintiff was qualified for his position and the Associate Director
position that he applied for. Instead, LIU contends that Plaintiff
has not plausibly alleged (1) an adverse employment action (with
the exception of LIU’s failure to hire Plaintiff for the Associate
Director position), or (2) that any of the alleged conduct occurred
under circumstances giving rise to an inference of discrimination.
(Def.’s Br. at 8-13.) The Court will address each element in turn.
1.

Adverse Employment Action

“A plaintiff sustains an adverse employment action if he
or she endures a ‘materially adverse change’ in the terms and
conditions of employment.”

Galabya v. N.Y.C. Bd. of Educ., 202

F.3d 636, 640 (2d Cir. 2000). To be considered materially adverse,
the change must be “more disruptive than a mere inconvenience or
an alteration in job responsibilities.”
16

Id. (internal quotation

marks and citation omitted).

The Second Circuit has held that

such a change “might be indicated by a termination of employment,
a demotion evidenced by a decrease in wage or salary, a less
distinguished

title,

a

material

loss

of

benefits,

significantly diminished material responsibilities.”

[or]

Id.; see

also Hill v. Rayboy–Brauestein, 467 F. Supp. 2d 336, 351 (S.D.N.Y.
2006).
The Complaint lists several incidents that Plaintiff
claims were adverse employment actions: (1) LIU denied Plaintiff’s
requests for “special projects and training” (Compl. ¶ 13); (2) the
athletic department never returned his phone calls or e-mails
regarding his desire to perform volunteer work (Compl. ¶ 35);
(3) he complied with LIU’s dress code and some of his co-workers
did not (Compl. ¶¶ 15-18); (4) he received a negative performance
evaluation
allegedly

(Compl.

¶¶

withholding

31-32);

(5)

information

Fuoco

reprimanded

regarding

an

him

for

inappropriate

relationship between a fellow hall director and a student (Compl.
¶ 39); (6) he took a half day off from work to go vote while other
co-workers left work to vote without taking any time off (Compl.
¶¶ 33-34); (7) he could not take pain medication while he was on
duty (Compl. ¶¶ 28-30); (8) LIU required him to make up the time
he missed while he was on workers compensation, which resulted in
seven weeks of duty for him while other hall directors only had
two weeks of duty (Compl. ¶¶ 21, 24); (9) LIU failed to interview
17

and hire him for the Associate Director position and hired a lessqualified

individual

outside

of

his

protected

class

instead

(Compl. ¶¶ 9-12); and (10) Fuoco told him that he could not work
with other departments on campus during his work hours or for
compensation but other similarly situated employees outside of his
protected class were not similarly restricted (Compl. ¶¶ 19-20).
As noted, LIU concedes that its decision not to hire
Plaintiff for the Associate Director position was an adverse
employment action but argues that the remaining allegations do not
plausibly allege adverse employment actions.

For the following

reasons, only those allegations that LIU required Plaintiff to
take extra duty and that LIU would not allow Plaintiff to work for
other departments for compensation plausibly describe adverse
employment actions.
Plaintiff’s allegation that he adhered to a dress code
while others did not amounts to nothing more than a complaint
regarding a mere inconvenience, not an adverse employment action.
See McKenzie v. Gibson, No. 07-CV-6714, 2008 WL 3914837, at *2-3
(S.D.N.Y.

Aug.

25,

2008)

(dismissing

Title

VII

gender

discrimination claim based on employer’s “policy in which male
employees could wear jeans to work while female employees could
not” because the plaintiff “fail[ed] to allege any facts that
suggest[ed] that th[e] policy altered the terms or conditions of
[the plaintiff’s] employment beyond ‘just a mere inconvenience’”
18

(citation omitted)). Similarly, Plaintiff’s allegations regarding
his negative performance review and Fuoco’s reprimand also do not
describe adverse employment actions because Plaintiff fails to
allege that he suffered any material negative consequences in the
terms of his employment as a result of either incident. See Parra,
2014 WL 4468089, at *8 (granting motion to dismiss Title VII race
discrimination claim because, inter alia, “[r]eprimands, threats
of disciplinary action and excessive scrutiny do not constitute
adverse employment actions in the absence of other negative results
such as a decrease in pay or being placed on probation” (internal
quotation marks and citation omitted)); see also Frankel v. City
of N.Y., Nos. 06-CV-5450, 07-CV-3436, 2009 WL 465645, at *3
(S.D.N.Y.

Feb.

25,

2009)

(“Plaintiff's

negative

performance

evaluations do not constitute adverse employment actions.”); Meder
v. City of N.Y., No. 05-CV-0919, 2007 WL 1231626, at *12 (E.D.N.Y.
Apr.

27,

2007)

(holding

that

“written

and

oral

criticisms . . . even if unjustified, are not adverse employment
actions”).
Plaintiff’s claim that he was unable to vote without
taking time off from work while his co-workers left work to vote
without

taking

time

employment action.

off

also

fails

to

describe

an

adverse

Plaintiff alleges that he took time off from

work to go vote because he was afraid of losing his job but the
Complaint does not allege that anyone at LIU told him that he could
19

not leave work to go vote, nor does it allege that LIU permitted
Plaintiff’s co-workers to leave work without taking time off.
Plaintiff’s subjective fear of losing his job absent an allegation
regarding conduct by LIU is insufficient to state an adverse
employment action.

Plaintiff’s claim that he could not take

medication while he was on duty similarly fails to state an adverse
employment action because the Complaint does not actually allege
that LIU took any action with respect to Plaintiff in this regard.
Plaintiff’s allegations that LIU denied him special
projects, professional training, and volunteer work also fail to
state

an

adverse

employment

action

because

the

denial

of

professional training opportunities may constitute an adverse
employment action “only where an employee can show material harm
from the denial, such as a failure to promote or a loss of career
advancement opportunities.”

Trachtenberg v. Dept. of Educ. of

City of N.Y., 937 F. Supp. 2d 460, 468 (S.D.N.Y. 2013) (emphasis
added) (internal quotation marks and citation omitted).

Here,

Plaintiff has not alleged any material harm resulting from the
alleged denial of special projects, professional training, or
volunteer work, and therefore, these allegations do not plausibly
state an adverse employment action.

See id. (“[Plaintiff] has not

alleged

resulting

any

negative

consequences

from

the

alleged

denial of professional training, and therefore any such denial
does not rise to the level of an adverse employment action.”);
20

Sekyere v. City of N.Y., No. 05-CV-7192, 2009 WL 773311, at *4
(S.D.N.Y. Mar. 18, 2009) (“Plaintiff does not contend that her
position was altered in any way by not receiving some specific
training, nor does she contend that she was disciplined, demoted,
transferred, or terminated for lack of some fundamental knowledge
that

should

have

been

provided

for

her

through

training.

Accordingly, any failure by Defendants to provide Plaintiff with
training does not rise to the level of an adverse employment
action.”).
However, the Court finds that Plaintiff’s claim that LIU
would not allow him to work with other departments on campus does
state an adverse employment action.

This claim, unlike the

allegations regarding the mere denial of training and volunteer
work, alleges that Plaintiff was denied the opportunity to earn
additional compensation that other similarly situated employees
were permitted to earn.
The

Court

This states an adverse employment action.

also

finds

that

Plaintiff’s

complaint

regarding his duty schedule in the Fall of 2012 is also sufficient
to

plausibly

allege

an

adverse

employment

action.

“Where

assignments fall within the duties of a plaintiff's position,
receiving unfavorable schedules or work assignments does not,
without more, rise to the level of an adverse employment action.”
Williams v. Ford Motor Co., No. 12-CV-0411, 2014 WL 1572302, at
*13 (W.D.N.Y. Apr. 18, 2013) (collecting cases).
21

However, the

Second

Circuit

has

held

that

can

“assignment
constitute

an

of

a

disproportionately

heavy

employment action.

Feingold v. New York, 366 F.3d 138, 152–53 (2d

Cir. 2004).

workload”

the

adverse

Here, Plaintiff alleges that LIU required him to make

up the time he missed while he was on workers compensation, which
resulted in seven weeks of duty for him while other hall directors
only had two weeks of duty.

This allegation, if true, would

demonstrate that Plaintiff suffered an adverse employment action.
In

sum,

only

those

allegations

that

LIU

required

Plaintiff to take extra duty and that LIU would not allow Plaintiff
to work for other departments for compensation plausibly describe
adverse employment actions.
2.
Having

Inference of Discrimination
found

that

Plaintiff

has

stated

adverse

employment actions, the Court will now assess whether Plaintiff
has

alleged

facts

sufficient

to

support

an

inference

discrimination for each alleged adverse employment action.

of
The

Court finds that Plaintiff has.
A plaintiff can show circumstances giving rise to an
inference of discrimination in a variety of ways, including “by
relying on the theory of disparate treatment; that is, by showing
that [his] employer treated [him] less favorably than a similarly
situated employee outside [his] protected group.” Risco v. McHugh,
868 F. Supp. 2d 75, 100 (S.D.N.Y. 2012).
22

“‘If a comparison with

another employee is to lead to an inference of discrimination it
is necessary that the employee be similarly situated in all
material respects.’”

Parra, 2014 WL 4468089, at *8 (quoting Staff

v. Pall Corp., 233 F. Supp. 2d 516, 536 (S.D.N.Y. 2002), aff’d, 76
F. App’x 366 (2d Cir. 2003)).
Here,
opportunity

to

Plaintiff
work

alleges

with

other

that

he

departments

was

denied

the

on

campus

for

compensation while other “[s]imilarly situated employees who are
not in a protected class . . . were not also restricted.”
¶ 19.)

(Compl.

The Complaint identifies at least two other employees who

were permitted to work for compensation during work hours.

He

additionally alleges that he had to work more than other hall
directors.

Although the Complaint is sparse on specifics with

respect to how his colleagues are similarly situated to him, the
Court finds that Plaintiff has stated a plausible inference of
discrimination based on disparate treatment with respect to the
claims

that

LIU

treated

him

differently

by

denying

him

the

opportunity to earn additional compensation and by assigning him
significantly more work than his fellow hall directors, but just
barely.

See Trachtenberg, 937 F. Supp. 2d at 471 (denying motion

to dismiss even though the complaint was “thin on specifics--both
as to how each comparator [was] similarly situated to [Plaintiff]
and what disparate treatment he or she was subjected to.”).

23

Plaintiff

also

has

stated

a

plausible

inference

discrimination related to his failure to hire claim.

of

He alleges

that he was qualified for the Assistant Director position and that
he applied for it but that LIU failed to interview him and instead
gave the position to Lazarus, a less-qualified individual outside
of Plaintiff’s protected class.
that

the

Complaint

does

not

LIU takes issue with the fact

identify

Lazarus’

race

but

the

Complaint also alleges that there was only one other African
American staff member at LIU, and LIU does not dispute that Lazarus
is not in Plaintiff’s protected class.
means a model of clarity.

The Complaint is by no

However, it provides enough detail to

support an inference of discrimination with respect to the failure
to hire claim.

See Butts v. N.Y. City Dep.t of Housing Preserv.

& Dev., No. 00-CV-6307, 2007 WL 259937, at *9 (S.D.N.Y. Jan. 29,
2007) (“An employer's choice of a less qualified employee not from
Plaintiff's protected class raises an inference of discrimination
sufficient

to

establish

a

prima

facie

case

of

discrimination . . . .”), aff’d, 308 F. App’x 596 (2d Cir. 2009).
In sum, the Court finds that Plaintiff has adequately
alleged that he suffered adverse employment actions that were
accompanied by inferences of discrimination based on race when LIU
denied him the opportunity to work for other departments for
compensation, assigned him a disproportionate amount of work, and
failed to hire him for the Associate Director position.
24

These

claims will proceed to discovery.

However, Plaintiff has not

alleged any adverse employment actions that were accompanied by
inferences of gender discrimination, and any such claims are
therefore DISMISSED WITH PREJUDICE.
V.

Hostile Work Environment Claims
Plaintiff also brings hostile work environment claims

under Title VII, Section 1981, and NYSHRL.

As discussed below,

the Court finds the allegations of the Complaint fail to state a
hostile work environment.
“A hostile work environment arises ‘when 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.’”

El v. N.Y. State Psychiatric Inst., No. 13-CV-

6628, 2014 WL 4229964, at *5 (S.D.N.Y. Aug. 19, 2014) (brackets
omitted) (quoting Morgan, 536 U.S. at 116).

To state a claim for

hostile work environment,
a plaintiff must plead facts that would tend
to show that the complained of conduct:
(1) “is objectively severe or pervasive--that
is, . . . creates an environment that a
reasonable person would find hostile or
abusive”; (2) creates an environment “that the
plaintiff subjectively perceives as hostile or
abusive”; and (3) “creates such an environment

25

because
of
the
characteristic].”

plaintiff's

[protected

Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (ellipsis in
original) (quoting Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir.
2001)). “[A] work environment's hostility should be assessed based
on the ‘totality of the circumstances.’”

Id. at 113 (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367,
126 L. Ed. 2d 295 (1993)).

In assessing the totality of the

circumstances, a court might consider: “(1) the frequency of the
discriminatory

conduct;

(2)

its

severity;

(3)

whether

it

is

threatening and humiliating, or a mere offensive utterance; and
(4) whether it unreasonably interferes with an employee's work
performance.”

Id.

(internal

quotation

marks

and

citation

omitted).
As best the Court can tell, Plaintiff appears to claim
that Fuoco created a hostile work environment on account of his
gender when she told him that he could not wear shorts and that
“dressing in cool temperature attire was a women thing.”
¶ 16.)

(Compl.

Plaintiff also appears to allege that LIU created a race-

based hostile work environment based on the adverse employment
actions outlined in the previous section of this Memorandum and
Order.

These allegations of conduct, either individually or

collectively, come nowhere close to the type and frequency of
conduct sufficient to create a hostile work environment.

26

See

Alfano v. Costello, 294 F.3d 365, 379–80 (2d Cir. 2002) (collecting
cases in which courts have and have not found sufficient evidence
of a hostile work environment).

Accordingly, LIU’s motion to

dismiss the hostile work environment claims is GRANTED and these
claims are DISMISSED WITH PREJUDICE.
VI.

Leave to Replead
The Second Circuit has stated that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend
the complaint.”

Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d

Cir.1999); see also FED. R. CIV. P. 15(a)(2) (“The court should
freely give leave [to amend] when justice so requires.”). “However,
a district court has the discretion to deny leave to amend where
there is no indication from a liberal reading of the complaint
that a valid claim might be stated.”

Perri v. Bloomberg, No. 11–

CV–2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (citing
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).

Here, the

Court will grant Plaintiff leave to replead his claims that LIU
discriminated

against

him

when

it

denied

him

training

opportunities and when he received a negative performance review.
However, the Court will not grant Plaintiff leave to replead any
other deficiencies identified in the Complaint since amendment
would be futile.

27

CONCLUSION
For

the

foregoing

reasons,

LIU’s

motion

to

(Docket Entry 5) is GRANTED IN PART and DENIED IN PART.

dismiss
LIU’s

motion to dismiss is GRANTED as to (1) Plaintiff’s Title VII claims
based on conduct occurring prior to March 28, 2012; (2) Plaintiff’s
Title VII, Section 1981, and NYSHRL claims based on gender;
(3) Plaintiff’s Title VII, Section 1981, and NYSHRL claims based
on allegations that do not state adverse employment actions, as
explained above; and (4) Plaintiff’s hostile work environment
claims.
that

All of these claims are DISMISSED WITH PREJUDICE except

Plaintiff

is

granted

leave

to

replead

certain

adverse

employment actions identified in this Memorandum and Order.

If

Plaintiff wishes to replead, he must do so within thirty (30) days
of the date of this Memorandum and Order. If he fails to do so,
claims based on these alleged adverse employment actions will be
dismissed with prejudice.

SO ORDERED.

/S/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

September __30__, 2014
Central Islip, NY

28