Pothen v. Stoney Brook University
Filing
51
MEMORANDUM & ORDER granting in part and denying in part 47 Motion to Dismiss for Failure to State a Claim the Second Amended Complaint. SO ORDERED that defendant's motion to dismiss is granted with respect to plaintiff's claim for Title VII discrimination as it relates to his termination, but denied with respect to the Title VII discrimination claim based upon a failure to promote, denial of overtime, negative reviews, and receipt of a disproportionately heavy workload. Defendant's motion to dismiss is also denied as to the retaliation and hostile work environment claims under Title VII. Ordered by Judge Joseph F. Bianco on 9/30/2016. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NQ 13-CV-6170 (JFB)(AYS)
STEPHEN POTHEN,
Plaintiff,
VERSUS
STONY BROOK UNIVERSITY,
Defendant.
MEMORANDUM AND ORDER
September 30, 2016
JOSEPH F. BIANCO, District Judge:
Stephen Pothen ("Pothen" or "plaintiff''),
proceeding pro se and in forma pauperis,
filed this action against the State University
ofNew York at Stony Brook ("Stony Brook"
or "defendant") on November 7, 2013,
alleging that Stony Brook violated Title VII
of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. ("Title VII") by
discriminating and retaliating against him
based upon his race, national origin, color,
and religion. The Court, in an order dated
March 21, 2014 (the "March 21, 2014
Order"), dismissed plaintiffs complaint for
failure to state a cause of action and gave
plaintiff an opportunity to amend. 1 Plaintiff
filed an amended complaint on June 26,
2014, and a second amended complaint on
April28, 2015. 2
1
2
The Court also dismissed plaintiff's claim that he was
discriminated against based upon his age in violation
of the Age Discrimination in Employment Act of I 967
("ADEA''). (See March 21, 2014 Order, Docket No.
14.) Plaintiff's second amended complaint does not
appear to raise a claim for discrimination based upon
plaintiff's age. If it had, the Court would dismiss such
a claim on the sovereign immunity grounds set forth in
the March 21, 2014 Order. (!d.)
Plaintiff's initial complaint and his amended
complaint indicated that he was bringing claims under
Title VII. (See Docket Nos. I and 19.) Although
plaintiff's second amended complaint does not
specifically state the statute under which he seeks
relief and plaintiff alludes to requests for
compensation for psychological trauma, mental pain
and depression, sciatica, "physical and mental
overload which turned my family life equal to hell,"
humiliation in the work place, "salary and leave loss,"
and "the salary equivalent to the number of days" of
environment by engaging in a conspiracy to
destroy his career and by failing to provide a
safe working environment in violation of
Stony Brook's code of conduct. (Id. at 1-3.)
Plaintiff alleges that he was given "bad"
reports, denied overtime, denied a promotion,
given undesirable work assignments, denied
an assistant for work assignments where one
was customary, yelled at and called names by
his supervisors, and terminated from his
position. (Id. at 2-9.)
Defendant moves to dismiss the second
amended complaint pursuant to Rules 8(a)
and 12(b)(6) of the Federal Rules of Civil
Procedure on the grounds that (I) plaintiff
fails to state a Title VII discrimination claim;
(2) plaintiff fails to state a claim for
retaliation under Title VII; (3) plaintiff fails
to state a claim for hostile work environment;
and (4) plaintiff failed to properly serve the
second amended complaint and did not
comply with the Court's orders such that
dismissal under Federal Rule of Civil
Procedure 41 (b) is warranted.
Plaintiff alleges that he and his coworker, also of Indian descent, were given
"bad reports" by a supervisor, Frank Nappie
("Nappie"), who "hated Indians." (Id. at 12.) Plaintiff claims that, under a prior
supervisor, his service record was good. (!d.
at 8.) Plaintiff states that he is Christian and
has Jewish grandparents. (Id. at 3.) He alleges
that he was denied a promotion to the position
of "Engineer 2" and that management
provided him with ''no utility assistant
(except on [S]aturdays and [S]undays during
the last year of my service) as they did to
other engineers," which caused plaintiff to
have to do his work as an engineer and the
work an assistant would do. (!d.) Plaintiff
also alleges that Nappie was responsible for
allotting overtime and requested plaintiff
give him money in exchange for an allotment
of overtime. (Id. at 3.) Plaintiff alleges that,
after he refused to pay Nappie for overtime
on religious grounds, Nappie withheld
overtime from him, but provided overtime to
plaintiff's colleagues. (Jd.)
As discussed below, defendant's motion
to dismiss is granted in part and denied in
part.
l.
BACKGROUND
A. Factual Background
The following facts are taken from the
second amended complaint filed on April28,
2015 ("SAC")3 and are not findings of fact by
the Court. Instead, the Court will assume the
facts in the SAC to be true and, for purposes
of the pending 12(b)(6) motion to dismiss,
will construe them in a light most favorable
to plaintiff, the non-moving party. 4
Beginning in 2005, plaintiff worked as a
maintenance engineer at Stony Brook. (SAC
at 1.) Plaintiff alleges that his supervisors
discriminated and retaliated against him
because of his Indian national origin and his
religion, and created a hostile work
4
leave consumed, the Court assumes, for the purposes
of this motion, that plaintiffs claims are for the
violation of Title VII since that is the claim for which
notice was given.
Plaintiff's complaint is difficult to follow and
contains lengthy explanations about the harm he
allegedly suffered. The Court does not provide details
of all of the alleged harm here and, instead, includes
only those facts necessary for deciding the instant
motion.
3
Attached to plaintiff's SAC are his initial complaint,
filed November 7, 2013, as well as several additional
documents. The Court cites to the pagination of the
SAC.
2
Plaintiff also alleges the following
specific incidents were the result of
discrimination and contributed to a hostile
work environment: 5 (I) on April 20, 2013,
plaintiffs supervisor David Kingsly
("Kingsly") "hammered on the table," yelled
at plaintiff, and called him stupid; (2) on June
15, 2013, the assistant director questioned
plaintiff about a building inspection log and
yelled at plaintiff; (3) on June 12, 2013,
plaintiff was asked to clean paint which
caused him dizziness and other discomfort, a
task he alleges other engineers were not
asked to do; (4) on September 10, 2012,
plaintiff had an accident, which his
supervisor refused to report and which led to
an altercation; (5) on June 10, 2013, Kingsly
threw a soiled raincoat at plaintiff,
interrogated and yelled at plaintiff, told
plaintiff that he needed treatment for
paranoia, asked plaintiff to do an "imposed
job" of energy survey (a task plaintiff alleges
he was only tasked with doing on Saturdays
and Sundays), and refused to give plaintiff a
log sheet used to track plaintiffs work; and
(6) on May 27, 2013, Kinglsy permitted
plaintiffs colleague to leave early, but denied
plaintiffs request to leave the next day and
threatened to take action against him. (!d. at
5-7.)
threatening him, glVlng him unfavorable
work assignments without an assistant, and
denying him a promotion. (!d. at 13.)
B. Procedural History
Plaintiff filed the initial complaint on
November 7, 2013. By order dated
November 20, 2013, the Court stated that it
would dismiss the action without prejudice if
service of the summons and complaint were
not made on Stony Brook by March 7, 2014,
or if plaintiff failed to show good cause as to
why such service had not been effected.
Plaintiff submitted an affirmation of service
dated January 6, 2014 stating that he served
the summons and complaint by mailing
copies to the "Director" of Stony Brook, the
Attorney General of the United States, and
the United States Attorney for the Eastern
District of New York. On February 7, 2014,
Stony Brook filed its first motion to dismiss
based upon failure to state a claim, which the
Court granted on March 21, 2014. Plaintiff
was given leave to amend, which plaintiff
attempted to do by letter and which Stony
Brook opposed. By Order dated May 28,
2014, the Court gave plaintiff one final
opportunity to amend his complaint. Plaintiff
filed an amended complaint on June 26, 2014
and, on October 20, 2014, Stony Brook made
a second motion to dismiss. On March 25,
2015, the Court permitted plaintiff to file the
SAC. The SAC was filed on Apri128, 2015,
and on May 29, 2015, the defendant filed a
third motion to dismiss. By order dated
August 10, 2015, the Court directed the
plaintiff to serve "the defendant with a full,
paper copy of the Second Amended
Complaint and a copy of the disc he has filed
with the Court" by August 23,2015. By letter
dated August 27, 2015, defendant advised the
With respect to his claim of retaliation,
plaintiff alleges that he filed numerous
complaints with various departments at Stony
Brook, and filed complaints with the Human
Rights Commission ("HRC") and the Equal
Employment Opportunity Commission
("EEOC"), including a "workplace violence
complaint" on September27, 2013. (!d. at 1.)
Plaintiff alleges that he was retaliated against
by supervisors who mistreated him, including
by trying to poison him, manhandling and
The Court infers that plaintiff intends to allege that
these incidents provide the basis for his claims of both
s Plaintiff does not distinguish between discrimination
on the basis of national origin or religion in alleging
that these incidents were the result of discrimination.
religious and national origin discrimination.
3
Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010)
(quoting Bell At/. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). This standard does not
require "heightened fact pleading of
specifics, but only enough facts to state a
claim to relief that is plausible on its face."
Twombly, 550 U.S. at 570.
Court that plaintiff did not comply with the
portion of the Court's order requiring him to
serve a complete copy of the SAC that had
been filed with the Court and indicated that
the SAC served contained different text than
the SAC filed with the Court. On August 31,
2015, the Court ordered plaintiff to serve
defendant with "actual copies" of the full
documents, and warned that a failure to
comply with the Order could result in
dismissal of the action under Rule 41 (b) of
the Federal Rules of Civil Procedure for
failure to prosecute. On September 21, 2015,
plaintiff filed a letter with the Court and
attached a disc with documents. Defendant
filed its motion to dismiss on October 16,
2015, and after plaintiff failed to file an
opposition, the Court ordered the plaintiff to
respond in writing as to why the action should
not be dismissed for failure to prosecute.
Plaintiff filed a certificate of service on April
14, 2016. Defendant submitted a letter to the
Court on April 19, 2016 arguing that
defendant's motion should be granted
because plaintiff failed to show that he
properly effected service of the SAC and
failed to respond to defendant's motion to
dismiss.
II.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Supreme Court
instructed district courts to first "identifY[ ]
pleadings that, because they are no more than
conclusions, are not entitled to the
assumption of truth." !d. at 679 (explaining
that though "legal conclusions can provide
the framework of a complaint, they must be
supported by factual allegations"). Second, if
a complaint contains "well-pleaded factual
allegations, a court should assume their
veracity and then determine whether they
plausibly give rise to an entitlement to relief."
!d. A claim has "facial 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. The plausibility standard is not akin
to a 'probability requirement,' but it asks for
more than a sheer possibility that a defendant
has acted unlawfully." !d. at 678 (quoting and
citing Twombly, 550 U.S. at 556-57 (internal
citation omitted)).
STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6),
the Court must accept the factual allegations
set forth in the complaints as true and draw
all reasonable inferences in favor of the nonmoving party. See Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006);
Nechisv. Oxford Health Plans, Inc., 421 F.3d
96, I 00 (2d Cir. 2005). "In order to survive a
motion to dismiss under Rule 12(b)(6), a
complaint must allege a plausible set of facts
sufficient 'to raise a right to relief above the
speculative level."' Operating Local 649
Annuity Trust Fund v. Smith Barney Fund
The Court notes that, in adjudicating this
motion, it is entitled to consider "any written
instrument attached to the complaint as an
exhibit or incorporated in the complaint by
reference, as well as documents upon which
the complaint relies and which are integral to
the complaint." Subaru Distributors Corp. v.
Subaru of Am., Inc., 425 F.3d 119, 122 (2d
Cir. 2005).
4
Where, as here, the plaintiffis proceeding
prose, "[c]ourts are obligated to construe the
[plaintiff's] pleadings . . . liberally."
McClusky v. New York State Unified Court
Sys., No. 10-CV-2144 (JFB)(ETB), 2010 WL
2558624, at *2 (E.D.N.Y. June 17, 2010)
(citing Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008) and
McEachin v. McGuinnis, 357 F.3d 197, 200
(2d Cir. 2004)). A pro se plaintiff's
complaint, while liberally interpreted, still
must "state a claim to relief that is plausible
on its face." Mancuso v. Hynes, 379 F. App'x
60, 61 (2d Cir. 2010) (citing Iqbal, 556 U.S.
at 678) (internal quotation marks omitted);
see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (applying Twombly and Iqbal to
pro se complaint).
III.
A court may, in its discretion, dismiss a
case under Rule 41 (b) "(i]f the plaintiff fails
to prosecute or to comply with these rules or
a court order.... "Fed. R. Civ. P. 4l(b). In
analyzing whether to dismiss a plaintiff's
case pursuant to Rule 41 (b), a district court
must consider five factors, including: "(!) the
duration of the plaintiff's failure to comply
with the court order, (2) whether plaintiff was
on notice that failure to comply would result
in dismissal, (3) whether the defendants are
likely to be prejudiced by further delay in the
proceedings, (4) a balancing of the court's
interest in managing its docket with the
plaintiffs interest in receiving a fair chance
to be heard, and (5) whether the judge has
adequately considered a sanction less drastic
than dismissal." Baptiste v. Sommers, 768
F.3d 212, 216 (2d Cir. 2014) (internal
quotation marks omitted). "Generally, no one
factor is dispositive." Martens v. Thomann,
273 F.3d 159, 180 (2d Cir. 2001).
A pro se litigant's claim should be dismissed
for failure to prosecute "only when the
circumstances are sufficiently extreme."
LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d
206, 209 (2d Cir. 2001) (internal quotation
marks omitted).
DISCUSSION
A. Dismissal Under Federal Rule of
Civil Procedure 41 (b)
Defendant argues that plaintiffs failure
to properly serve the SAC in violation of the
Court's orders warrants dismissal under Rule
4l(b) of the Federal Rules of Civil Procedure.
Defendant asserts that plaintiff has been
deficient in properly effecting service of
process on defendant by initially providing
defendant with a version of the SAC that did
not contain exhibits or the disc provided to
the Court and, following the Court's August
I 0, 2015 Order, providing defendant with an
SAC containing content that differs from the
SAC filed with the Court. Defendant argues
that plaintiff still has not properly effected
service in violation of the Court's August 31,
2015 Order directing plaintiff to serve the
Attorney General with a full and complete
copy of the actual document filed with the
Court, and that violation of this Order and
plaintiffs failure to properly serve defendant,
warrants dismissal.
The Court cannot conclude that these
factors support dismissal. Plaintiff was made
aware of deficient service and directed by the
Court on several occasions to serve defendant
with full and complete copies of the SAC
including all of the documents that had been
previously filed with the Court. Although
plaintiff apparently has failed to fully comply
with that Order and appears to have served
and filed different versions of the SAC, this
non-compliance does not appear to be willful
but rather appears to be due to plaintiff's pro
se status. Moreover, defendant was served
with the April 28, 2015 SAC on August 20,
2015 (attached as Exhibit C to defendants'
motion) and the differences between that
5
document and other documents filed with the
Court on other dates are not determinative for
purposes of this motion to dismiss. Any
documents or allegations not contained in the
April 28, 2015 SAC are not critical to the
Court's analysis and can be reconciled
between the parties with the assistance of the
Magistrate Judge. In short, defendant has
demonstrated no prejudice, especially
because it is clear that defendant was able to
access and review plaintiff's SAC, and other
filings, in connection with the motion to
dismiss. Thus, the Court does not conclude
that this is a situation warranting the harsh
remedy of dismissal under Rule 41 (b).
20 15). "Under Iqbal and Twombly ... in an
employment discrimination case, a plaintiff
must plausibly allege that (I) the employer
took adverse action against him and (2) his
race, color, religion, sex, or national origin
was a motivating factor in the employment
decision." !d. at 86. In his complaint, "a
plaintiff must allege that the employer took
adverse action against [him] at least in part
for a discriminatory reason, and [he] may do
so by alleging facts that directly show
discrimination or facts that indirectly show
discrimination by giving rise to a plausible
inference of discrimination." !d. at 87. '"[A ]t
the initial stage of the litigation' in a Title VII
case, 'the plaintiff does not need substantial
evidence of discriminatory intent."' Johnson
v. Andy Frain Servs., Inc., No. 15-CV-1143,
2016 WL 210098, at *I (2d Cir. Jan. 19,
2016) (quoting Littlejohn v. CityofNew York,
795 F.3d 297,311 (2d Cir. 2015)). "Rather,
what must be plausibly supported by the facts
alleged in the complaint is that the plaintiff is
a member of a protected class, was qualified,
suffered an adverse employment action, and
has at least minimal support for the
proposition that the employer was motivated
by discriminatory intent." /d. (citations and
internal quotation marks omitted).
B. Title VII Discrimination
Title VII makes it unlawful for an
employer "to discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of
employment, because of such individual's
race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a). "To establish a prima
facie case of employment discrimination
under Title VII, a plaintiff must show that
'(I) 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 giving rise to an inference of
discrimination."' Chang v. N.Y. C. Dep 't for
the Aging, No. 11-CV-7062 (PAC)(JLC),
2012 WL 1188427, at *4 (S.D.N.Y. Apr. 10,
2012)(quotingRuizv. Cnty. ofRockland, 609
F.3d 486, 492 (2d Cir. 2010)), report &
recommendation adopted, 2012 WL 2156800
(S.D.N.Y. June 14, 2012).
Defendant argues that plaintiff's
discrimination claims should be dismissed
because most of the alleged actions do not
constitute "adverse employment actions"
under Title VII and the SAC does not include
sufficient factual allegations to support a
conclusion that any adverse employment
action occurred under circumstances giving
rise to an inference of discrimination. For the
reasons set forth below, the Court grants in
part and denies in part defendant's motion to
dismiss plaintiff's Title VII discrimination
claims. In particular, the Court agrees that
plaintiff's discrimination claim based upon
his termination should be dismissed because
there are no facts to support a plausible claim;
At the pleading stage, a Title VII plaintiff
need not allege specific facts establishing
each element of a prima facie case of
discrimination. Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 84 (2d Cir.
6
however, the remainder of the discrimination
claim survives defendant's motion to
dismiss.
Galabya v. New York City Bd. of Educ., 202
F.3d 636, 640 (2d Cir. 2000) (internal
quotation marks omitted).
I. Adverse Employment Actions
Plaintiff's allegations regarding "bad
reports" and various altercations with
supervisors could quality as adverse
employment actions depending on the
circumstances. Thus, this fact-specific
determination cannot be resolved on a motion
to dismiss in this case. Although plaintiff
does not specifically allege material negative
consequences in the terms of his employment
as a result of either his negative reviews or
the altercations, the Court believes that,
based on the totality of the allegations
contained in the SAC, the absence of that
particular aspect of his allegations does not
warrant dismissal, particularly in light of
plaintiff's pro se status.
Defendant concedes that some of the
alleged actions referred to in the SAC may
constitute adverse employment actions under
Title VII, including plaintiff's termination,
his failure to receive a promotion, and the
denial of overtime, but argues that plaintiff's
"bad reports,"
complaints regarding
undesirable
work
assignments,
and
altercations with plaintiff's supervisors are
workplace grievances that do not constitute
adverse employment actions. (Defs. Mot. at
9-1 0.)
To constitute an adverse employment
action in the context of a discrimination
claim, an action must cause "a materially
adverse change in the terms and conditions of
employment." Henry v. NYC Health & Hasp.
Corp., 18 F. Supp. 3d 396, 404 (S.D.N.Y.
20 14) (quoting Mathirampuzha v. Potter, 548
F.3d 70, 78 (2d Cir. 2008)). "[T]here is no
exhaustive list of what constitutes an adverse
employment action. Courts have held that
termination, demotion, denial of promotion,
addition of responsibilities, involuntary
transfer that entails objectively inferior
working conditions, denial of benefits, denial
of a requested employment accommodation,
denial of training that may lead to
promotional opportunities,
and
shift
assignments that make a normal life difficult
for the employee, among other things,
constitute adverse employment actions."
Collins v. Potter, No. 05-CV-3474
(JFB)(LB), 2008 WL 4104459, at *4
(E.D.N.Y. Aug. 29, 2008) (quoting Little v.
NBC, 210 F. Supp. 2d 330, 384 (S.D.N.Y.
2002)). An "adverse employment action" is
"more disruptive than a mere inconvenience
or an alteration of job responsibilities."
Similarly, with respect to plaintiff's
allegations regarding work assignments, the
Court finds that plaintiff has plausibly
alleged an adverse employment action.
Defendant categorizes plaintiff's allegations
as complaints related to unfavorable work
assignments. Indeed, "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-CV0411, 2014 WL 1572302, at *13 (W.D.N.Y.
Apr. 18, 2014) (collecting cases). However,
the assignment of "a disproportionately
heavy workload" can constitute an adverse
employment action. Feingold v. New York,
366 F.3d 138, 152-53 (2d Cir. 2004). Here,
plaintiff's allegations that, unlike other
engineers, he was at times not provided with
a utility assistant, requiring him to "do the
work of engineer I and assistant at the same
time" (SAC at 3), and was asked to clean
paint on June 12, 2013, even though "[o]ther
engineers also dropped paint ... but [were]
7
not asked to clean" (SAC at 6), go beyond
alleging the receipt of unfavorable
assignments. If true, plaintiff's allegations
would show that he suffered an adverse
employment action when he received
assignments of a disproportionately heavy
workload. See Johnson v. Long Island Univ.,
58 F. Supp. 3d 211, 223-24 (finding plaintiff
sufficiently pled the adverse employment
action of assignment of a disproportionately
heavy workload when he was assigned seven
weeks of duty while his colleagues were
given only two weeks of duty).
individuals with whom [he] seeks to compare
[him]self." Brown v. Daikin Am. Inc., 756
F.3d 219, 229-30 (quoting Graham v. Long
Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).
Generally, "[w]hether two employees are
similarly situated ... presents a question of
fact," rather than a legal question to be
resolved on a motion to dismiss. !d. At the
pleading stage, allegations that the plaintiff
and comparators worked in the same group
and were accountable to the same
supervisors, but were subjected to disparate
treatment may be sufficient to raise an
inference of discrimination. !d. (concluding
that plaintiff plausibly alleged he and
comparator employees were similarly
situated even though he did not plead facts
about the comparator employees' job
function, experience, qualifications, and rate
of pay).
2. Inference of Discrimination
Defendant also argues that plaintiffs
claim fails because the SAC does not include
sufficient factual allegations to support the
conclusion that the adverse employment
actions occurred under circumstances giving
rise to an inference of discrimination. The
Court agrees with respect to plaintiffs
discharge claim, but finds that plaintiff has
stated a plausible inference of discrimination
with respect to claims regarding denial of a
promotion, denial of overtime, and the
receipt of a disproportionately heavy
workload.
With respect to plaintiff's claims that he
was denied a promotion, denied overtime,
and given a disproportionately heavy
workload, the Court finds that plaintiff has
stated a plausible inference of discrimination.
Plaintiff does not specifically identify the
national origin or religion of the engineer
who plaintiff alleges received a promotion
instead of him or of the other comparators he
alleges
received
overtime
and
disproportionately
lighter
workloads.
However, plaintiff does identify the engineer
promoted by name and he claims that
comparators were engineers who were
accountable to the same supervisors. Plaintiff
alleges that he and these engineers were
similarly situated, but were subjected to
disparate treatment because of plaintiffs
national origin and religion. Drawing all
reasonable inferences in plaintiff's favor, this
is sufficient to state a plausible inference of
discrimination. See Bakeer v. Nippon Cargo
Airlines, Co., No. 09-CV-3374 (RRM), 2011
WL 3625103, at *27-28 (E.D.N.Y. July 25,
2011) (finding plaintiffs' allegations that
In general,
"[a]n
inference of
discrimination can arise from circumstances
including, but not limited to, the employer's
criticism of the plaintiff's performance in
ethnically degrading terms; or its invidious
comments about others in the plaintiff's
protected group; or the more favorable
treatment of employees not in the protected
group; or the sequence of events leading to
the plaintiff's discharge." Littlejohn, 795
F.3d at 312 (internal quotation marks
omitted). In seeking to demonstrate that he
received less favorable treatment than
employees not in a protected group, a
plaintiff may demonstrate he "was similarly
situated in all material respects to the
8
their comparators were offered different
terms and conditions of employment was
sufficient to establish that they were similarly
situated, without pleading additional facts
about how they were similarly situated);
Trachtenberg v. Department ofEduc. of City
of New York, 937 F. Supp. 2d 460, 471
(S.D.N.Y. 2013) (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"); Brown, 756 F.3d at 230
(rejecting defendant's argument that plaintiff
was required to specifically allege
comparator employees had the same job
function, experience, qualifications, and rate
of pay and finding that it is reasonable to
conclude when drawing all reasonable
inferences in favor ofplaintiffthat employees
were subject to the same performance
evaluation and disciplinary standards, and
therefore similarly situated in their
employment circumstances based on
allegations that the employees worked in the
same group).6
termination was the result of discrimination
based on plaintiff's national origin or
religion. Thus, there are insufficient
allegations to support a plausible claim of
discrimination in connection with plaintiff's
termination. 7
Accordingly, defendant's motion to
dismiss is denied with respect to plaintiff's
Title VII discrimination claims for denial of
a promotion, denial of overtime, the receipt
of a disproportionately heavy workload,
unfavorable reviews,
and workplace
grievances related to altercations with
supervisors, but granted with respect to
plaintiff's termination claim.
C. Title VII Retaliation
"Title VII forbids an employer to
retaliate against an employee for, inter alia,
complaining of employment discrimination
prohibited by Title VII." Kessler v.
Westchester County Dep 't ofSoc. Servs., 461
F.3d 199, 205 (2d Cir. 2006); see also 42
U.S.C. § 2000e-3(a) (making it unlawful "for
an employer to discriminate against any of
his employees ... because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].").
Generally, in order to establish a prima facie
case of retaliation, a plaintiff must
demonstrate "(!) the employee was engaged
in protected activity; (2) the employer was
aware of that activity; (3) the employee
suffered an adverse employment action; and
(4) there was a causal connection between the
protected activity and the adverse
employment action." Gregory v. Daly, 243
However, the Court agrees with
defendant that no inference of discrimination
under Title VII arises with respect to
plaintiff's discharge. Plaintiff simply alleges
that he was terminated for lack of mental
fitness after being on "sick leave with half
pay for two years because of mental
depression." (SAC at 4.) Although plaintiff
alleges that the discrimination he experienced
while employed at Stony Brook made him
"mentally sick" (id. ), he does not allege any
facts that give rise to an inference that his
6
plaintiff's favor, the Court finds this is sufficient to
Defendant argues that the SAC attributes the denial
of overtime solely to plaintiff's refusal to pay a
allege an inference of discrimination.
"bribe," rather than any discriminatory animius. (Def.
7
Mot. At 13.) However, plaintiff alleges that he refused
to pay the bribe for religious reasons and that, after he
communicated this to his supervisor, he was denied
overtime. Drawing all reasonable inferences in
As defendant noted, the lack of a plausible claim on
the termination is further highlighted by the fact (as set
forth in the SAC) that the termination was made
pursuant to New York State Civil Service Law§ 73.
9
F.3d 687, 700 (2d Cir. 200l)(quoting Reedv.
A. W. Lawrence & Co., 95 F .3d 1170, 1178
(2d Cir. 1996)); see also Lore v. City of
Syracuse, 670 F.3d 127, 157 (2d Cir. 2012);
Patane,
508
F.3d
at
115.
For
a Title VII retaliation claim, plaintiff need
only show that the adverse action "could ...
have dissuaded a reasonable employee in [the
plaintiff's] position from complaining of
unlawful discrimination." Feliciano v. City of
New York, 2015 WL 4393163, at *9
(S.D.N.Y. July 15, 2015) (quoting Kessler v.
Westchester Cnty. Dep 't of Soc. Servs., 461
F.3d 199, 209 (2d Cir. 2006)). To allege
causation, "the plaintiff must plausibly allege
that the retaliation was a 'but-for' cause of
the employer's adverse action." Id. But-for
causation "does not require proof
that retaliation was the only cause of the
employer's action, but only that the adverse
action would not have occurred in the
absence of the retaliatory motive." !d. at 91
(internal quotation marks and citation
omitted).
temporal proximity to his DHR complaint.
Temporal proximity between a protected
activity and an adverse employment action
can support an inference of discriminatory
intent. See Garman-Bakos v. Cornell Coop.
Extension ofSchenectady Cty., 252 F.3d 545,
554 (2d Cir. 2001). However, "the temporal
proximity must be 'very close."' Clark Cty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273
(200 I); see
Vega, 80 I
F.3d
at
90 (retaliatory purpose can be shown
indirectly by the timing of a protected activity
if the activity was "followed closely in time
by adverse employment action" (citing Cifra
v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir.
2001))). Although the Second Circuit "has
not drawn a bright line to define the outer
limits beyond which a temporal relationship
is too attenuated to establish a causal
relationship," Garman-Bakos, 252 F.3d at
554-55, district courts in this Circuit have
held that a gap of more than two months
between the protected activity and the alleged
adverse employment action is too long to
establish an inference of causation. See
Garrett v. Garden City Hotel, Inc., No. 05CV-0962 (JFB)(AKT), 2007 WL 1174891, at
*21 (E.D.N.Y. 2007) (citing cases).
Plaintiff asserts that the incidents
described in the SAC are "retaliation against
[his] human rights complaint." (SAC at 8.)
Defendant argues that plaintiff does not state
a retaliation claim with respect to this
complaint. In particular, defendant notes that
plaintiff filed his complaint with DHR on
December 7, 2012, and the incidents
occurring before December 7, 2012 cannot
give rise to an inference of retaliatory animus.
See Pinero v. Long Island State Veterans
Home, 375 F. Supp. 2d 162, 168 (E.D.N.Y.
2005) (finding no inference of retaliatory
animus where the adverse employment action
occurred prior to the protected activity).
Defendant further contends that, with respect
to the incidents between April 20, 2013 and
June 20, 2013, plaintiff does not allege any
facts to support a causal connection to his
DHR complaint and such allegations lack
However, the analysis is more complex
than suggested by defendant. In particular,
although the DHR complaint was filed in
December 2012, plaintiff was claiming
"discrimination" in emails in the months
leading up to the formal complaint.
Defendant does not substantively address the
numerous other complaints plaintiff alleges
he filed with Stony Brook other than to argue
(i) that the SAC is "devoid of any specific
dates on which these were filed" and (ii) that
the one complaint that is dated is irrelevant
because it was a "workplace violence
complaint" filed with Stony Brook's Labor
Relations department on September 12, 2013.
(Def. Mot. at 23.) Although plaintiff does not
10
108 (2d Cir. 2011) (alteration and citation
omitted).
give exact dates for each of the complaints in
the SAC, he attaches emails indicating
complaints he filed with Stony Brook. (SAC
at 39.) "[T]he law is clear that opposition to
a Title VII violation need not rise to the level
of a formal complaint in order to receive
statutory protection, this notion of
'opposition' includes activities such as
'making complaints to management, writing
critical letters to customers, protesting
against discrimination by industry or by
society in general, and expressing support of
co-workers who have filed formal
charges."' Cruz v. Coach Stores, Inc., 202
F.3d 560, 566 (2d Cir. 2000) (quoting
Sumner v. US. Postal Serv., 899 F.2d 203,
209 (2d Cir. 1990)); see also Bennett v.
Hofstra Univ., 842 F. Supp. 2d 489, 500
(E.D.N.Y. 2012) (noting that a protected
activity under Title VII does not require a
formal complaint to management); Borski v.
StatenlslandRapidTransit, No. 04-CV-3614
(SLT) (CLP), 2006 WL 3681142, at *4
(E.D.N.Y. Dec. II, 2006) ("For Plaintiff's
conduct to constitute participation in a
protected activity, it is enough that he has
made informal protests of discrimination,
including
making
complaints
to
management." (internal quotation marks
omitted)). The Court recognizes that some of
plaintiff's emails do not complain about
discrimination at all and others only vaguely
characterize certain events as discrimination
without any reference to plaintiffs protected
status (for example, "[o]n 6-2-13 Dunson
spent half hour washing his car on duty.
Kingsly knew about it but did not issue a
councilling. This is discrimination" (SAC at
27)). However, at the motion to dismiss stage
(without the full context for the allegations
and emails), the Court cannot conclude as a
matter of law that Stony Brook could not
"reasonably have understood [ ] that the
plaintiff's complaint was directed at conduct
prohibited by Title VII." Rojas v. Roman
Catholic Diocese of Rochester, 660 F.3d 98,
In short, plaintiff alleges a series of
adverse actions following his alleged
informal and formal complaints of
discrimination. Although there were alleged
adverse actions that pre-dated such
complaints (and are, therefore, not a proper
basis for a retaliation claim), plaintiff has a
plausible claim that the alleged adverse
actions occurring after his purported
protected
activity
were
retaliatory.
Accordingly, defendant's motion to dismiss
plaintiff's retaliation claim is denied.
D. Hostile Work Environment
Plaintiff also makes allegations related to
"workplace violences," which the Court
liberally construes to assert a Title VII hostile
work environment claim. (SAC at 2, 7, 8.) As
set forth below, defendant's motion to
dismiss this claim is denied.
Defendant argues that, as a threshold
matter, plaintiff does not indicate whether
such a claim has been administratively
exhausted and, therefore, defendant's claim
must be dismissed. However, even assuming
arguendo that plaintiff did not exhaust this
particular claim, it appears from the face of
the SAC that the allegations in this claim may
be "reasonably related" to his claims of
discrimination. Under such circumstances,
plaintiff would not be precluded from
asserting this claim. See Butts v. City ofNew
York Dep't Hous. Pres. & Dev., 990 F.2d
1397, 1401 (2d Cir. 1993). Defendant did not
address whether plaintiff's claims could be
considered "reasonably related" in its motion
papers. Accordingly, there is no basis to
dismiss the claim for failure to exhaust at this
juncture.
II
overloaded him with work, and caused him
psychological trauma. (!d. at 8.) If proven,
this conduct could plausibly be sufficiently
pervasive or severe to constitute a hostile
work environment.
Defendant also argues that the claim
should be dismissed because there are no
allegations that link the harassment to, inter
alia, plaintiff's national origin. As set forth
below, in light of plaintiff's prose status and
the detailed allegations in the complaint, the
Court concludes that this claim should
survive a motion to dismiss.
Moreover, although these alleged
instances are not specifically linked to
plaintiff's status in a protected class (such as
with specific alleged comments), it is wellsettled that "(f]acially neutral incidents may
be included, of course, among the 'totality of
the circumstances' that courts consider in any
hostile work environment claim." Alfano v.
Costello, 294 F.3d 365, 378 (2d Cir. 2002).
In viewing the totality of the circumstances,
plaintiff has alleged that he and another coworker of Indian descent were treated
differently than similarly situated co-workers
in terms of work assignments, overtime, and
promotions. Ifthose allegations are proven, it
is certainly plausible that the other alleged
harassment could also be related to plaintiffs
status in a protected class, even if such status
was not referenced specifically by anyone
during the incident. In short, the Court
concludes that, if the alleged hostile work
environment is proven, it is plausible, under
the totality of the circumstances, that the
alleged conduct was motivated by the
defendant's membership in a protected class
(such as his national origin) or based upon his
protected activity. Accordingly, defendant's
motion to dismiss the hostile work
environment claim is denied.
In order to prevail on a hostile work
environment claim, a plaintiff must make two
showings: (I) that the harassment was
sufficiently severe or pervasive to alter the
conditions of the victim's employment and
create an abusive working environment and
(2) that there is a specific basis for imputing
the conduct creating the hostile work
environment to the employer. Summa v.
Hofstra Univ., 708 F.3d 115, 123-24 (2d Cir.
2013). Relevant factors to consider in
determining whether an environment is
sufficiently hostile include "the frequency of
the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with
an employee's work performance." Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).
A plaintiff is not required to establish a prima
facie case of hostile work environment; he
need only make a short and plain statement of
the claim that shows entitlement to relief and
gives defendant fair notice of the claim for
hostile work environment and the grounds
upon
which
that
claim
rests.
See Swierkiewicz v. Sorema, N.A., 534 U.S.
506, 512 (2002).
IV.
Plaintiff refers to a number of altercations
in which supervisors yelled at him,
"hammered on the table also along with
yelling," and called him stupid. (SAC at 58.) Plaintiff also states that superiors,
managers, colleagues, and assistants made
life miserable for him, ridiculed him,
CONCLUSION
For the foregoing reasons, defendant's
motion to dismiss is granted with respect to
plaintiff's claim for Title VII discrimination
as it relates to his termination, but denied
with respect to the Title VII discrimination
claim based upon a failure to promote, denial
of overtime, negative reviews, and receipt of
12
a disproportionately heavy workload.
Defendant's motion to dismiss is also denied
as to the retaliation and hostile work
environment claims under Title VII.
,SO ORpE\ffiD.
s/ Joseph F. Bianco
SEPH F. BIANCO
nited States District Judge
Dated: September 30, 2016
Central Islip, New York
•
•
•
Plaintiff is proceeding prose, 5 Coolidge
Court, Coram, New York 11727. Defendant
is represented by Patricia M. Hingerton,
Susan M. Connolly, and Theresa N. Wilson,
New York State Office of the Attorney
General, 300 Motor Parkway Suite 230,
Hauppauge, New York 11788.
13
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