Falcon v. City University of New York et al
MEMORANDUM OF DECISION AND ORDER - For the reasons stated above, CUNYs 33 motion for a judgment on the pleadings pursuant to Rule 12(c), dismissing the Plaintiffs complaint, is granted in part, and denied in part. It is granted to the extent that t he Plaintiffs hostile work environment claim is dismissed; the Plaintiff may not rely on any events before 2008 in her Title VII discrimination claim; and the Plaintiff may only proceed on her Title VII retaliation claim based on CUNYs alleged acts after she filed an internal complaint in December 2014. It is denied to the extent that the Plaintiffs Title VII discrimination and retaliation claims nevertheless survive 12(b)(6) scrutiny. The case is respectfully referred to Magistrate Judge Arlene R. Lindsay for the remainder of discovery. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 7/10/2017. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-againstCITY UNIVERSITY OF NEW YORK,
Jonathan A. Tand & Associates
Co-counsel for the Plaintiff
990 Stewart Avenue, Suite 225
Garden City, NY 11530
Jonathan A Tand, Esq.,
Jennifer Spirn, Esq., Of Counsel
Derek Smith Law Group, PLLC
Co-counsel for the Plaintiff
30 Broad Street
New York, NY 10004
John C Luke, Jr., Esq., Of Counsel
New York State Attorney General
Attorneys for the Defendant
200 Old County Road, Suite 240
Mineola, NY 11501
Ralph Pernick, Assistant Attorney General
SPATT, District Judge:
This case arises from allegations by the Plaintiff Nancy Falcon (the “Plaintiff”) that her
current employer the Defendant City University of New York (“CUNY”) violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) by engaging in gender
discrimination, creating a hostile work environment, and retaliating against her for objecting to the
Presently before the Court is a motion by CUNY for a judgment on the pleadings pursuant
to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(c), dismissing the Plaintiff’s
complaint. For the following reasons, CUNY’s motion is granted in part, and denied in part.
A. The Relevant Facts
The relevant facts have already been recited and summarized by this Court in a previous
memorandum of decision and order. (See ECF No. 29); Falcon v. City Univ. of N.Y., No.
15CV3421ADSARL, 2016 WL 3920223, 2016 U.S. Dist. LEXIS 92396 (E.D.N.Y. July 15, 2016).
Therefore, the Court need not repeat them here.
B. The Relevant Procedural History
On March 17, 2015, the U.S. Department of Justice notified the Plaintiff that conciliation
efforts had failed and issued to the Plaintiff a right to institute a civil action based on her first
charge for gender and age discrimination.
On June 8, 2015, the EEOC issued a second notice of a right to sue based on the Plaintiff’s
second charge for gender discrimination, age discrimination, and retaliation.
On June 12, 2015, the Plaintiff commenced the instant action against CUNY and former
defendant Queens College at the City University of New York (“Queens College”). The Plaintiff’s
original complaint included causes of action brought under the Age Discrimination in Employment
Act of 1967, 29 U.S.C.A. § 621 et seq. (“ADEA”) and 42 U.S.C. § 1983 (“Section 1983”), as well
as under Title VII. The Plaintiff attached two exhibits to her complaint: the EEOC’s January 31,
2012 determination, and her right to sue letter issued on March 17, 2015 by the United States
Department of Justice.
On November 13, 2015, CUNY and Queens College filed a motion to dismiss all claims
except the Plaintiff’s Title VII claims against CUNY pursuant to Rules 12(b)(1) and 12(b)(6).
On December 4, 2015, the Plaintiff filed an amended complaint (the “FAC”) as a matter of
right. The Plaintiff did not allege any new facts, or bring any new causes of action. The amended
complaint included an additional exhibit—namely, the June 8, 2015 letter from the EEOC to the
Plaintiff notifying her of her right to sue based on her second EEOC charge of discrimination and
On December 21, 2015, the Plaintiff filed a motion to amend her complaint a second time
pursuant to Rule 15 to add additional defendants.
On July 15, 2016, the Court issued a memorandum of decision and order granting CUNY
and Queens College’s partial motion to dismiss in its entirety, and denying the Plaintiff’s crossmotion for leave to amend.
On September 9, 2016, CUNY filed the instant motion for a judgment on the pleadings
pursuant to Rule 12(c). CUNY attached several documents to its motion, all of which fall into one
of four categories: documents from the Plaintiff’s 2008 EEOC complaint; documents from the
Plaintiff’s 2012 EEOC complaint; a CUNY charge of discrimination form completed by the
Plaintiff; and the Plaintiff’s letter, with exhibits, to the EEOC on December 1, 2014.
As of April 19, 2017, the Plaintiff had not filed a memorandum in opposition to CUNY’s
motion for a judgment on the pleadings, so the Court ordered the Plaintiff to show cause why the
motion should not be granted as unopposed. The Plaintiff responded on April 28, 2017. On May
4, 2017, despite the fact that the Plaintiff had not shown good cause as to why she had not
responded, the Court extended the Plaintiff’s time to respond to CUNY’s motion. In doing so, the
Court noted that there was a strong preference for deciding cases on their merits; and even if the
Court were to analyze the Defendant's motion as unopposed, it would still have to accept the factual
assertions in the Plaintiff's complaint as true and construe all possible inferences in her favor.
The motion was fully briefed on June 14, 2017.
A. The Relevant Legal Standard
The standard for a motion for a judgment on the pleadings pursuant to Rule 12(c) is the
same as a motion to dismiss a complaint pursuant to Rule 12(b)(6). Irish Lesbian & Gay Org. v.
Giuliani, 143 F.3d 638, 644 (2d Cir. 1998).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of
the Plaintiff. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013); Cleveland v. Caplaw
Enters., 448 F.3d 518, 521 (2d Cir. 2006); Bold Elec., Inc. v. City of N.Y., 53 F.3d 465, 469 (2d
Cir. 1995); Reed v. Garden City Union Free School Dist., 987 F. Supp. 2d 260, 263 (E.D.N.Y.
Under the now well-established Twombly standard, a complaint should be dismissed only
if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929
(2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule
12(b)(6) is guided by two principles:
First, although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice. Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss and [d]etermining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664, 129
S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009)).
Thus, “[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and . . . determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556
U.S. at 679.
B. As to CUNY’s Exhibits
The Court first notes that it will take judicial notice of CUNY’s exhibits without converting
the motion into one for summary judgment. The Plaintiff prepared most of the documents; she
had notice of them; and the EEOC files are part of the administrative proceedings of which the
Court can take notice.
“When determining the sufficiency of plaintiff[’s] claim for Rule 12(b)(6) purposes,
consideration is limited to the factual allegations in [the] complaint, documents attached to the
complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be
taken, or documents either in plaintiff[’s] possession or of which plaintiff[ ] had knowledge and
relied in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Therefore, when a plaintiff chooses not to attach to the complaint or incorporate by reference a
document upon which she relies and which is integral to the complaint, the court may nevertheless
take that document into consideration in deciding a defendant’s motion to dismiss, without
converting the motion into one for summary judgment. Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47–48 (2d Cir. 1991).
However, when a party submits additional evidence to the Court in connection with a
motion to dismiss, beyond the scope of those allowed under Brass and Cortec, “a district court
must either ‘exclude the additional material and decide the motion on the complaint alone’ or
‘convert the motion to one for summary judgment under Fed. R .Civ. P. 56 and afford all parties
the opportunity to present supporting material.’” Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir.
2000) (quoting Fonte v. Bd. of Mgrs. of Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988));
see also Fed. R. Civ. P. 12(b); 5C Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1366.
Here, the complaint references the Plaintiff’s EEOC filings, and she even included the
EEOC’s findings, and her right to sue letters. Although she did not include all of the EEOC
paperwork supplied by CUNY, she has notice of those documents because she submitted them and
received them, and she based the instant action on those proceedings.
Furthermore, the Court “may take judicial notice of the records of state administrative
procedures, as these are public records, without converting a motion to dismiss to one for summary
judgment.” Evans v. N.Y. Botanical Garden, No. 02 Civ. 3591, 2002 WL 31002814, at *4
(S.D.N.Y. Sept.4, 2002) (citations omitted); see also Daniel v. Long Island Hous. P'ship, Inc., No.
08-CV-01455 JFB/WDW, 2009 WL 702209, at *5 n.4 (E.D.N.Y. Mar. 13, 2009) (“The Court may
consider the EEOC charges because they are public documents filed in state administrative
proceedings, as well as because they are integral to her Title VII claim.”) (citations omitted);
Lindner v. Int'l Bus. Mach. Corp., No. 06 Civ. 4751(RJS), 2008 WL 2461934, at *1 n. 1 (S.D.N.Y.
June 18, 2008) (taking judicial notice of an EEOC filing); Muhammad v. New York Citv Transit
Auth., 450 F. Supp. 2d 198, 204–05 (S.D.N.Y. 2006) (taking judicial notice of an EEOC charge
and agency determination); Dutton v. Swissport USA, Inc., No. 04 CV 3417, 2005 WL 1593969,
at *1 (E.D.N.Y. July 1, 2005) (taking judicial notice of transcript from Worker's Compensation
Board hearing and plaintiff's NYSDHR complaint); Brodeur v. City of N.Y., No. 04 Civ. 1859(JG),
2005 U.S. Dist. LEXIS 10865, at *9, 2005 WL 1139908 (E.D.N.Y. May 13, 2005) (stating that
the court could consider “public documents of which the plaintiff has notice” on a Rule 12(b)(6)
motion to dismiss); Thomas v. Westchester Cty. Health Care Corp., 232 F. Supp. 2d 273, 276
(S.D.N.Y. 2002) (taking judicial notice of the transcript from a disciplinary hearing brought
pursuant to section 75 of the New York State Civil Service Law and a report of the Impartial
Hearing Officer that resulted from the hearing).
Therefore, the Court will consider CUNY’s exhibits without converting the motion into
one for summary judgment.
C. As to the Plaintiff’s Title VII Discrimination Claim
CUNY argues that any factual allegations in the FAC that occurred before 2008 are timebarred; that the Plaintiff’s allegations related to Massiah’s June 2012 promotion are insufficiently
alleged; and that the Plaintiff’s 2014 internal complaint does not add anything of substance. The
Plaintiff argues that her claims are subject to the continuing violation doctrine. The Court agrees
with CUNY that any factual allegations that pre-date 2008 are time barred because the continuing
violation doctrine is explicitly inapplicable to Title VII discrimination claims. However, the Court
finds that the Plaintiff’s claims related to Massiah’s June 2012 promotion survive scrutiny.
1. The Relevant Law
To evaluate claims of discrimination and retaliation under Title VII, courts must apply the
burden shifting framework, laid out by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The framework has four steps. The Plaintiff
has the initial burden of proving a prima facie case of discrimination. Id. at 802. If the Plaintiff
establishes a prima facie case, the burden shifts to the Defendant to articulate a legitimate, nondiscriminatory reason for its adverse employment decision. Id. If the Defendant succeeds in
meeting its burden, the presumption of animus “drops out of the picture.” St. Mary’s Honor Ctr.
v. Hicks, 509 U.S. 502, 510–11, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). The Plaintiff must
then show that the Defendant’s actions were the result of impermissible discrimination. Holcomb
v. Iona College, 521 F.3d 130,138 (2d Cir. 2008).
To establish a prima facie case of discrimination under Title VII, a plaintiff must show that
“(1)[the] plaintiff is a member of a protected class; (2) [the] plaintiff was qualified for   her
position; (3) plaintiff was subjected to an adverse employment action; and (4) the adverse
employment action took place under circumstances giving a rise to an inference of discrimination
based on plaintiff’s membership in the protected class.” El–Din v. N.Y.C. Admin. for Childs.’
Servs., No. 12 Civ. 1133(PAE), 2012 WL 3839344, at *4 (S.D.N.Y. Sept. 5, 2012) (citing
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)).
As to the final element,
[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 employee’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 v. City of N.Y., 795 F.3d 297, 312 (2d Cir. 2015) (quoting Leibowitz v. Cornell Univ.,
584 F.3d 487, 502 (2d Cir. 2009)). If the Plaintiff seeks to compare herself to other comparable
employees, they “must be similarly situated in all material respects—not in all respects.”
McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (quoting Shumway v. United Parcel
Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (internal quotation marks and emphasis omitted).
However, at the pleadings stage, a plaintiff does not need to prove discrimination, or even
allege facts establishing every element of a prima facie case, but the facts alleged must give
“plausible support to the reduced requirements” of the prima facie case. Littlejohn, 795 F.3d at
311; Dawson v. N.Y.C. Transit Auth., 624 F. App’x. 763, 765–67 (2d Cir. 2015) (summary order);
Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 71 (2d Cir. 2006). Specifically,
absent direct evidence of discrimination, what must be plausibly supported by 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. The
facts alleged must give plausible support to the reduced requirements that arise
under McDonnell Douglas in the initial phase of a Title VII litigation. The facts
required by Iqbal to be alleged in the complaint need not give plausible support to
the ultimate question of whether the adverse employment action was attributable to
discrimination. They need only give plausible support to a minimal inference of
Littlejohn, 795 F.3d at 311.
2. Application to the Facts
a. As to Whether the Plaintiff’s Factual Allegations Before 2008 are TimeBarred
The Supreme Court has explicitly stated that
Title 42 U.S.C. § 2000e–5(e)(1) is a charge filing provision that “specifies with
precision” the prerequisites that a plaintiff must satisfy before filing suit. An
individual must file a charge within the statutory time period and serve notice upon
the person against whom the charge is made. In a State that has an entity with the
authority to grant or seek relief with respect to the alleged unlawful practice, an
employee who initially files a grievance with that agency must file the charge with
the EEOC within 300 days of the employment practice; in all other States, the
charge must be filed within 180 days. A claim is time barred if it is not filed within
these time limits.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S. Ct. 2061, 2070, 153 L. Ed. 2d
106 (2002). The Court went on to say that “[d]iscrete acts such as termination, failure to promote,
denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable “unlawful employment
practice,” id. at 114, and specifically held that the Court of Appeals erred by applying the
continuing violations doctrine. “[D]iscrete [ ] acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges. Each discrete [ ] act starts a new clock for
filing charges alleging that act.” Id. at 113 (emphasis added).
Here, the Plaintiff’s first EEOC complaint was filed on October 31, 2008. Therefore, any
discrete act of discrimination which occurred before January 5, 2008 is not actionable. See id. at
114 (“All prior discrete discriminatory acts are untimely filed and no longer actionable.”).
Accordingly, the Plaintiff will not be able to proceed based on CUNY’s failure to promote the
Plaintiff in the years preceding 2008; or her demotion in title and stripping of responsibilities in
b. As to Whether the Plaintiff Sufficiently Alleged a Failure to Promote in
CUNY argues that the Plaintiff’s claims stemming from Massiah’s June 2012 promotion
must fail because CUNY failed to consider a male candidate; and therefore no inference of
discrimination can be drawn from the occurrence. As stated above, an inference of discrimination
can be drawn from “the employer’s criticism of the plaintiff’s performance in ethnically degrading
terms; or its invidious comments about others in the employee’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. While the Plaintiff does not respond to this
argument in any meaningful way, the Court finds that an inference of discrimination can be drawn
from the sequence of events as well as the favorable treatment of an employee not in the protected
In a letter to the EEOC in which she rebutted CUNY’s claims, the Plaintiff said the
following about the June 2012 position:
Effective tune 1, 2012, Mr. Massiah was reclassified from Assistant Director to
Deputy Director, which was not a new position. Respondent fails to mention that
Mr. Massiah’s position actually carries the title of Lieutenant/Assistant Director. I
had previously been told that the position of Deputy Director was no longer part of
the Security Office structure. The prior occupant of the Deputy position was Jay
tones (a HEO position), and it was vacant since Mr. Jones retired. Another member
of the Security force, Sgt. Louis Padron (who is now retired but has indicated he is
available and willing to provide testimony) also was told that the Deputy position
was no longer available. He subsequently took and passed both the competitive
and non-competitive lieutenant’s examination and passed both tests, and he was not
even given the opportunity to interview for the Lieutenant position. Mr. Massiah
has not taken the test for a lieutenant’s position, and has, in fact, failed one part of
the sergeant’s test, according to Mr. Padron. While this information may not be
directly germane to my case, it demonstrates a pattern of favoritism and
discrimination in how promotions are made at Queens College.
(Def.’s Ex. C at C4).
CUNY states that because there was a male employee who was also not told of the position,
Sgt. Louis Padron, the Plaintiff’s discrimination claim based on this instance must fail. That is,
CUNY argues that since an individual outside of the Plaintiff’s protected class who was similarly
situated was also not considered for the position, an inference of discrimination cannot be drawn
from the situation. The Court disagrees.
The Plaintiff does not allege that Sgt Padron was similarly situated, nor is it clear whether
he was similarly situated. Therefore, the Court cannot say that an individual outside of the
Plaintiff’s protected class, similarly situated, was treated differently. In her EEOC complaint, the
Plaintiff lists Massiah as similarly situated. Although he allegedly had fewer qualifications than
the Plaintiff, Massiah received a promotion for which she was not even considered. An inference
of discrimination can be drawn from a situation such as this one. See, e.g., Butts v. N.Y.C. Dep’t
of Hous. 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,
307 F. App’x 596 (2d Cir. 2009).
Furthermore, although the continuing doctrine is inapplicable here, the “sequence of events
leading to the” failure to consider the Plaintiff for the Deputy Director position allows the Court
to draw an inference of discrimination. Littlejohn, 795 F.3d at 312. That is, the Plaintiff alleges
that Massiah had already effectively replaced the Plaintiff by subsuming her old responsibilities
despite the fact that he purportedly was less qualified; the Plaintiff lost many of her responsibilities;
then Massiah was again chosen over the Plaintiff to become Deputy Director.
Therefore, the Court finds that the Plaintiff has sufficiently alleged that CUNY
discriminated against her on the basis of her gender when it failed to consider her for Deputy
Director in June 2012, and that said discrimination was in violation of Title VII. Accordingly,
CUNY’s motion for a judgment on the pleadings pursuant to Rule 12(c) dismissing the Plaintiff’s
discrimination claim is denied.
D. As to the Plaintiff’s Title VII Retaliation Claim
CUNY contends that the Plaintiff has not sufficiently alleged a causal connection between
the protected activity and any alleged adverse action. While the Plaintiff does not respond to this
argument in any meaningful way, the Court finds that the Plaintiff has alleged sufficient facts to
survive a motion for a judgment on the pleadings with regard to her December 4, 2014 internal
1. The Relevant Law
In order to establish a prima facie case of retaliation, a plaintiff must establish “(1) [he]
engaged in protected activity; (2) the employer was aware of this activity; (3) the employee
suffered a materially adverse employment action; and (4) there was a causal connection between
the alleged adverse action and the protected activity.” Kelly v. Howard I. Shapiro & Assocs.
Consult. Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam) (quoting Lore v. City of
Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)); see Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d
2. Application to the Facts
The Plaintiff filed EEOC complaints on November 4, 2008, and September 9, 2012; and
filed an internal complaint with CUNY on December 4, 2014.
The Plaintiff does not allege that her employment was materially adversely affected after
her first EEOC charge until June 2012, when the Plaintiff alleges that she was not considered for
the position of Deputy Director of Public Safety. This occurred almost four years after the Plaintiff
filed her initial EEOC complaint, and is too far removed in time for the Court to find a causal
connection. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 274, 121 S. Ct. 1508, 149 L .Ed. 2d
509 (2001) (“Action taken . . . 20 months later suggests, by itself, no causality at all.”) (per
curiam); Woodworth v. Shinseki, 447 F. App’x 255, 258 (2d Cir. 2011) (finding fifteen months
and eighteen months to far removed to support an inference of retaliation); Richardson v. N.Y.
State Dep't of Corr. Serv., 180 F.3d 426, 447 (2d Cir. 1999) (two year gap between complaint and
discharge insufficient to prove causation), abrogated on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006); cf. Summa v. Hofstra
Univ., 708 F.3d 115, 125 (2d Cir. 2013) (“The seven-month gap between [plaintiff’s] filing of the
instant lawsuit and the decision to terminate her employment privileges is not prohibitively
remote.” (internal citations omitted)).
While the Plaintiff alleges that CUNY attempted to marginalize her by requiring CUNY
security staff to obtain permission from Massiah before transporting the Plaintiff; having the
Plaintiff serve subpoenas off-campus; and denying her request to work on a security detail at a
concert, these are not materially adverse employment actions. To be “materially adverse,”
Plaintiff’s working conditions must undergo a change “more disruptive than a mere inconvenience
or an alteration in job responsibilities.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000). “While adverse employment actions extend beyond readily quantifiable losses, not
everything that makes an employee unhappy is an actionable adverse action.” Pimentel v. City of
N.Y., No. 00 Civ. 326, 2002 WL 977535, at *3 (S.D.N.Y. May 14, 2002) (internal citations and
quotation marks omitted).
Similarly, the Plaintiff does not allege any materially adverse employment action after her
2012 EEOC complaint. According to the FAC, the Plaintiff’s job was not altered until late 2014.
On October 9 and 21, 2014, CUNY allegedly failed to notify the Plaintiff that a potential predator
was present on the campus. Nevertheless, this allegation is too remote in temporal proximity.
However, in the Court’s opinion, the Plaintiff has alleged sufficient facts to survive
12(b)(6) scrutiny regarding retaliation against her internal complaint filed on December 4, 2014.
The law also does not require that the employee file a formal complaint when opposing the
discriminatory practices—an informal complaint is sufficient. See Cruz, 202 F.3d at 566 (“[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 . . . and expressing support of co-workers who have filed
formal charges.’” (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990))); Ellis
v. Century 21 Dep’t Stores, 975 F. Supp. 2d 244, 281 (E.D.N.Y. 2013) (“In order to oppose sexual
harassment, [p]laintiff need not have filed a formal complaint as long as she complained of activity
that she had a good faith, reasonable belief violated the law.”); Bennett v. Hofstra Univ., 842
F. Supp. 2d 489, 500 (E.D.N.Y. 2012) (noting that Title VII does not require a formal complaint);
Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202, 227 (E.D.N.Y. 2010) (“It is clearly established
that informal complaints to supervisors constitute protected activity under Title VII.” (internal
citations and quotation marks omitted)).
The Plaintiff alleges that in early December 2014, CUNY transferred the majority of her
responsibilities to a male co-worker. A significant loss of material responsibilities can constitute
a materially adverse employment action. See Galabya, 202 F.3d at 640 (“A materially adverse
change might be indicated by a . . . a demotion evidenced by a decrease in wage or salary, a less
title, . . . significantly
indices . . . unique to a particular situation.” (internal citations and quotation marks omitted)).
While it is possible that this occurred in the three days in December before the Plaintiff filed her
internal complaint on December 4, 2014, the Court will construe the FAC liberally and interpret
early December to mean the first half of the month.
The Court notes that the FAC states that the Plaintiff “complained to the Defendants on
several occasions regarding CUNY’s failure to promote her in favor of younger male candidates.”
(FAC ¶ 24). However, as the complaint does not allege when these complaints were made, the
Court cannot analyze whether they were sufficiently proximate in time to any materially adverse
Accordingly, CUNY’s motion for a judgment on the pleadings pursuant to Rule 12(c)
dismissing the Plaintiff’s retaliation claim is denied, as the Plaintiff has alleged sufficient facts as
to her internal December 4, 2014 complaint.
E. As to the Plaintiff’s Title VII Hostile Work Environment Claim
CUNY asserts that the Plaintiff has not sufficiently plead a claim for hostile work
environment, and that even if she has, her claim is untimely. In opposition, the Plaintiff argues
that she has sufficiently alleged that she was subjected to a hostile work environment, and that the
claim receives the benefit of the continuing violation doctrine. The Court finds that although the
Plaintiff is correct that hostile work environment claims are subject to the continuing violation
doctrine, see Morgan, 536 U.S. at 115–17, she has failed to allege sufficient facts to support such
1. The Relevant Law
To establish a hostile work environment claim under Title VII, a plaintiff must show that
her workplace was “permeated with discriminatory intimidation, ridicule, and insult, that [was]
sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive
working environment.” Harris, 510 U.S. at 21 (quotation marks and citations omitted); Patterson
v. Cty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004).
Courts must look at the totality of the circumstances to determine whether an environment
is “hostile” or “abusive” and should consider: (1) the frequency of the discriminatory conduct; (2)
its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance;
and (4) whether it unreasonably interferes with an employee’s “work performance.” Harris, 510
U.S. at 23.
The Plaintiff must demonstrate that the conduct at issue created an environment that is both
objectively and subjectively hostile. Richardson, 180 F.3d at 436; White v. Fuji Photo Film USA,
Inc., 434 F. Supp. 2d 144, 154–155 (S.D.N.Y. 2006). Therefore, the Plaintiff must allege not only
that she found the environment offensive, but that a reasonable person also would have found the
environment to be hostile or abusive. Harris, 510 U.S. at 21–22.
Even when a plaintiff establishes that she was exposed to an objectively and subjectively
hostile work environment, “she will not have a claim . . . unless she can also demonstrate that the
hostile work environment was caused by animus towards her as a result of her membership in a
protected class.” Sullivan v. Newburgh Enlarged Sch. Dist. Clarence Cooper, 281 F. Supp. 2d
689, 704 (S.D.N.Y. 2003); see also Fordham v. Islip Union Free Sch. Dist., 662 F. Supp. 2d 261,
273 (E.D.N.Y. 2009) (stating that incidents comprising a hostile work environment claim must
occur under circumstances where the “incidents can reasonably be interpreted as having taken
place on the basis of that trait or condition”).
However, a plaintiff need not prove all of these elements at the pleading stage.
“Specifically, for a 12(b)(6) motion, a ‘plaintiff need only plead facts sufficient to support the
conclusion that he was faced with harassment . . . of such quality or quantity that a reasonable
employee would find the conditions of her employment altered for the worse.’” Buckley v. N.Y.,
959 F. Supp. 2d 282, 300 (E.D.N.Y. 2013) (Spatt, J.) (quoting Patane v. Clark, 508 F.3d 106, 113
(2d Cir. 2007)). However, the Plaintiff must still allege that she was subjected to that harassment
or hostility because of her membership in that class.
2. Application to the Facts
Reviewing the totality of the Plaintiff’s allegations, she states that she was marginalized
by having to submit to Massiah’s supposed authority; was denied the opportunity to work security
detail at a concert; was not informed of the presence of a predator on two occasions; and had to
serve subpoenas off-campus.
Even while recognizing that the Court should not set “the bar too high,” Patane, 508 F.3d
at 113, the Plaintiff still fails to plead sufficient facts to allege a viable hostile work environment
claim. In the Court’s view, none of these allegations rise to the level of “harassment . . . of such
quality or quantity that a reasonable employee would find the conditions of her employment
altered for the worse.” Buckley, 959 F. Supp. 2d at 300 (internal citations and quotation marks
omitted). It does not appear that the Plaintiff was harassed. At best, the Plaintiff’s treatment at
work could be considered inconveniences, and the Plaintiff does not connect her treatment to her
gender in any way. “While these duties or events may offend Plaintiff, they lack the minimum
factual specificity necessary . . . to demonstrate how h[er] work environment was hostile.”
Uwakwe v. Bridging Access to Care, Inc., No. 15CV06703DLIRER, 2017 WL 1048070, at *9
(E.D.N.Y. Mar. 16, 2017).
“Title VII does not establish a ‘general civility code’ for the American workplace,” La
Grande v. DeCrescente Distrib. Co., 370 F. App’x 206, 210 (2d Cir. 2010); (quoting Petrosino v.
Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004)), and “not every unpleasant matter short of discharge
or demotion constitutes an adverse action under Title VII.” Gentile v. Potter, 509 F. Supp. 2d 221,
239 (E.D.N.Y. 2007) (citing Delgado v. Triborough Bridge and Tunnel Auth., 485 F. Supp. 2d
453, 461 (S.D.N.Y. 2007)); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68,
126 S. Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (“[N]ormal petty slights, minor annoyances, and
simple lack of good manners will not create such deterrence.”) (internal citations omitted). “The
fact that [the] Plaintiff may be a member of a minority group and something happens to [her] that
[s]he does not like is not nearly sufficient to constitute an employment discrimination claim.”
Buckley v. N.Y., No. 11-cv-5512 (ADS) (AKT), U.S. Dist. LEXIS 190837, at *37 (E.D.N.Y. Sept.
Therefore, the Plaintiff has not sufficiently plead a cause of action for hostile work
environment pursuant to Title VII. In this regard, the Court need not address CUNY’s other
arguments. Accordingly, CUNY’s motion for a judgment on the pleadings pursuant to Rule 12(c)
dismissing the Plaintiff’s hostile work environment claim is granted.
Therefore, for the reasons stated above, CUNY’s motion for a judgment on the pleadings
pursuant to Rule 12(c), dismissing the Plaintiff’s complaint, is granted in part, and denied in part.
It is granted to the extent that the Plaintiff’s hostile work environment claim is dismissed; the
Plaintiff may not rely on any events before 2008 in her Title VII discrimination claim; and the
Plaintiff may only proceed on her Title VII retaliation claim based on CUNY’s alleged acts after
she filed an internal complaint in December 2014. It is denied to the extent that the Plaintiff’s
Title VII discrimination and retaliation claims nevertheless survive 12(b)(6) scrutiny.
The case is respectfully referred to Magistrate Judge Arlene R. Lindsay for the remainder
It is SO ORDERED:
Dated: Central Islip, New York
July 10, 2017
________/s/ Arthur D. Spatt_________
ARTHUR D. SPATT
United States District Judge
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