Brooking v. New York State Department of Taxation and Finance et al
Filing
27
DECISION AND ORDER granting in part and denying in part # 17 Defendant's Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted. All of plaintiff's claims are dismissed, EXCEPT for Plain tiff's retaliation claims against Defendants Mattox and Woodward pursuant to 42 U.S.C. §§ 1981 and 1983 and the aider and abettor provision pursuant to New York State Human Rights Law § 296(6). Defendant New York State Department of Taxation and Finance is dismissed from this action. Defendants Mattox and Woodward are directed to file an answer to Plaintiff's Complaint within FOURTEEN (14) DAYS of the date of this Decision and Order pursuant to Fed.R.Civ.P. 12(a)(4)(A). This case is referred back to Magistrate Judge Hummel for a Rule 16 conference and the scheduling of pretrial deadlines. Signed by Chief Judge Glenn T. Suddaby on 7/5/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JOSEPH BROOKING,
Plaintiff,
1:15-CV-0510
(GTS/CFH)
v.
NEW YORK STATE DEP'T OF TAXATION
& FIN.; THOMAS MATTOX; and JAMIE
WOODWARD,
Defendants.
________________________________________
APPEARANCES:
OF COUNSEL:
SUSSMAN & WATKINS
Counsel for Plaintiff
1 Railroad Avenue, Suite 3
P.O. Box 1005
Goshen, New York 10924
CHRISTOPHER D. WATKINS, ESQ.
ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action filed by Joseph
Brooking ("Plaintiff") against the New York Start Department of Taxation and Finance, Thomas
Mattox, and Jamie Woodward (collectively, "Defendants"), is Defendants' motion to dismiss
Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed.
R. Civ. P. 12(b)(6). (Dkt. No. 17.) For the reasons set forth below, Defendants' motion is
granted in part and denied in part.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Complaint
Generally, in his Complaint, Plaintiff alleges as follows. (Dkt. No. 1.)
1.
Plaintiff's Employment
Plaintiff, a 60-year-old African American male, has been employed by the New York
State Department of Taxation and Finance ("the Department") since 1988. (Id. at ¶ 9.) In 2009,
Plaintiff was appointed to serve as the Department's Director of the Office of Diversity and
Affirmative Action ("ODAA"). (Id. at ¶ 11.) Prior to Plaintiff's appointment, ODAA had only
one staff member, who was "tasked with handling EEO [equal employment opportunity]
complaints and investigations for the entire Department of 5,600 employees." (Id. at ¶ 14.)
Under Plaintiff's direction, ODAA "created a new website, founded a diversity council
and built an electronic hiring system." (Id. at ¶ 16.) ODAA also developed formal procedures
for conducting investigations of EEO complaints. (Id. at ¶ 17.) ODAA received praise both
"internally and externally," including, in 2010, an award from the Capital Region's Human
Resource Association for ODAA's "creativity and innovation." (Id. at ¶ 18.)
In early 2011, Defendant Thomas Mattox ("Mattox") became Commissioner of the
Department. (Id. at ¶ 19.) At some point thereafter, the Department's Buffalo District Office
("DO") was the subject of "numerous complaints of race and gender discrimination." (Id. at ¶
21.) Plaintiff and other ODAA staff members developed a strategy to address those concerns,
which included "several 'town hall' style meetings" to be held at the Buffalo DO, training
sessions, and focus groups. (Id. at ¶¶ 22-23.)
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On November 26, 2012, the Department held the first Buffalo DO town hall meeting,
which was attended by Mattox and "directors of other district offices." (Id. at ¶ 24.) Plaintiff
spoke during the meeting; and, during a question-and-answer session, some Buffalo DO
employees "voiced criticisms of" ODAA in general and of Steven McGough, an ODAA
investigator, in particular. (Id. at ¶ 25.) McGough was an African American staff member of
ODAA who was investigating specific complaints of discrimination arising in the Buffalo DO.
(Id.)
2.
Removal of ODAA's Investigatory Function
Within a few days of the meeting, Defendant Jamie Woodward ("Woodward"), Executive
Deputy Commissioner of the Department and the individual to whom Plaintiff reported,
informed Plaintiff that ODAA "would no longer be investigating EEO complaints within the
Department." (Id. at ¶¶ 7, 12, 26.) Woodward asserted that there were two reasons for this
decision. (Id. at ¶ 27.) The first reason was that ODAA was "consistently tardy in responding to
requests from the" Equal Employment Opportunity Commission ("EEOC") and New York State
Division of Human Rights ("NYSDHR"). (Id. at ¶ 28.) In response to Woodward's first reason
for relieving ODAA of responsibility for investigating EEO complaints, Plaintiff noted that the
heavy workload and understaffing "occasionally led to a delay in responding," but that no case
had ever been adversely affected by such a delay. (Id. at ¶ 28.) Plaintiff "also pointed out that
other similarly-sized offices within the Department faced the same issue, but no other office had
been stripped of their [sic] responsibilities as a result." (Id.)
The second reason cited by Woodward was that numerous employees had complained
about the manner in which ODAA "handled EEO investigations," and "a number of" those
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complaints concerned McGough specifically. (Id. at ¶ 29.) To that reason, Plaintiff responded
that McGough "was tasked with investigating complaints of discrimination," and complaints
about McGough made by "those who he was investigating (who were Caucasian) might be rooted
in discrimination." (Id. at ¶ 30.) Moreover, the majority of ODAA's employees were African
American, but the "vast majority" of the Department's employees–including nearly 90 percent of
the 215 employees in the Buffalo DO–were white. (Id. at ¶¶ 31-32.) Woodward "dismissed
[P]laintiff's concerns" regarding the complaints about ODAA and McGough, and advised
Plaintiff that the Department's Office of Internal Affairs ("OIA") would assume responsibility for
conducting EEO investigations. (Id. at ¶¶ 33-34.) At the time, OIA had no racial or ethnic
minorities on staff. (Id. at ¶ 35.)
3.
Notice of Termination of Plaintiff's Employment
On January 10, 2013, Plaintiff and Robert Smith, an African-American ODAA employee,
met with Mattox at the Department's New York City office "in an attempt to dissuade Mattox
from transferring ODAA duties to OIA." (Id. at ¶ 36.) During the meeting, Plaintiff advised
Mattox that discriminatory attitudes were not limited to the Buffalo DO, but rather were
"widespread throughout the Department," and cited two examples. (Id. at ¶ 37.) First, in the
spring of 2012, the "head of the Syracuse DO" expressed a reluctance to hire the most qualified
candidate for an internship program because the candidate "was believed to be an ethnic
minority." (Id. at ¶ 38.) When Plaintiff pointed out to "the Syracuse director" that nearly every
employee in the Syracuse DO was white and that greater diversity would be beneficial, the
director replied sarcastically, "So, we might as well not interview white men in the future?" (Id.)
Second, in late 2011 or early 2012, a "DO Audit Manager in Brooklyn" told Plaintiff that his
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office had hired several employees of Asian descent because the DO Audit Manager "believed
that they were 'docile and obedient,' generally 'easier to work with,' and 'they don't give you a
hard time.'" (Id. at ¶ 39.)
On February 7, 2013, Mattox advised Plaintiff that "his services would no longer be
needed at the Department," and that the Department "wanted to go in a 'different direction' with
the ODAA." (Id. at ¶ 40.) Plaintiff stated to Mattox that he had not planned to retire "for some
time" and that he still "had four months left before he reached 30 years of service." (Id. at ¶ 41.)
Mattox assured Plaintiff that he would "be allowed to get that," and that Mattox would also
"reach out on Plaintiff's behalf to the Governor's appointments office" if Plaintiff wanted to
continue working for the State. (Id. at ¶¶ 41-42.) Plaintiff responded that he would appreciate
Mattox's assistance and, on February 20, 2013, Plaintiff advised Mattox of "some positions
outside of the Department for which he wanted to be considered[.]" (Id. at ¶ 44.)
4.
Report of Continuing Concerns in the Buffalo DO
On February 28, 2013, Plaintiff received a telephone call from Jalisa Williams, an
African American ODAA staff member. (Id. at ¶ 45.) Williams reported that she, Robert Smith
and Nicole Moore (an African American "DO employee") had been conducting training sessions
and focus groups in the Buffalo DO. (Id. at ¶ 46.) During a break, a "white male manager"
approached Williams, Smith, and Moore, and asked if any ODAA "had any white employees"
who could conduct the training sessions and focus groups instead because "the 'message' would
be better received if it came from a white person." (Id.) The manager advised Williams that
other Buffalo DO managers felt similarly, one of whom had asked, "Why do I have to be trained
by black people?" (Id. at ¶ 46.) Williams also reported to Plaintiff that she had been approached
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by two female Buffalo DO employees who complained of a different white male manager
making "several sexist remarks" during a focus group. (Id. at ¶ 47.)
Williams advised Plaintiff that she was "very upset by these racist and sexist comments,"
and Plaintiff directed Williams to summarize the incidents in writing so that Plaintiff could
address them with "Mattox and others[.]" (Id. at ¶ 48.) Williams provided a written summary
and, on March 1, 2013, Plaintiff sent the summary to Mattox, Woodward, and Department
counsel Amanda Heller. (Id. at ¶ 49.) In so doing, Plaintiff did three things: (1) he reiterated that
"discriminatory attitudes" were not limited to the Buffalo DO, but rather existed throughout the
Department; (2) he expressed his suspicion that the "individuals who had made the racist
comments reported by Williams" were the same individuals who had previously complained
about McGough and ODAA; and (3) he "stated that the Department had to be prepared to take
disciplinary action to demonstrate that the Department was committed to rooting out
discrimination." (Id. at ¶¶ 50-51.)
5.
Mattox's Threat to Provide Plaintiff with a Poor Recommendation
On March 8, 2013, Mattox spoke with Plaintiff by telephone and advised Plaintiff that he
could either "retire in a few months" (i.e., once he reached 30 years of service), or Mattox could
"let [P]laintiff go the following Monday." (Id. at ¶ 52.) Despite his earlier assurance that he
would assist Plaintiff with finding another position with the State, Mattox advised Plaintiff that
"he would give [P]laintiff a poor recommendation based on a bogus issue regarding [P]laintiff's
time and attendance" if Plaintiff attempted to secure other State employment.1 (Id. at ¶ 53.) In
1
Plaintiff alleges that, during the summer of 2012, Woodward advised Plaintiff that
the Department was "investigating" Plaintiff's attendance during a period of two or three weeks.
(Id. at ¶ 55.) Plaintiff further alleges that the investigation was "baseless" and that he provided
the Department with "concrete proof of his attendance" during the period in question. (Id.)
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light of Mattox's threats of immediate termination and a poor recommendation if he attempted to
seek other employment, Plaintiff notified Mattox in writing that he would retire from State
service in June 2013 (i.e., once he reached 30 years of service). (Id. at ¶ 57.)
6.
Plaintiff's Performance Evaluation
During the five-year period in which Plaintiff was director of ODAA, he never received a
written performance evaluation. (Id. at ¶ 58.) In May 2013, he received a written performance
evaluation, purportedly prepared by Woodward. (Id. at ¶ 59.) The evaluation rated Plaintiff's
performance as "unsatisfactory" and cited "baseless allegations" to support that rating, including
Plaintiff's disobedience. (Id. at ¶ 59.) Plaintiff met with Woodward on May 7, 2013, and, when
he told Woodward that he "took exception to the evaluation's allegation that he had been
disobedient, Woodward responded, 'I never said that.'" (Id. at ¶ 60.) Woodward "responded in
the same way" with regard to other "criticisms" in the evaluation, and it thus appeared that
Woodward had "neither written, nor ever read, [P]laintiff's performance evaluation." (Id. at ¶
60.)
Based upon the foregoing, Plaintiff asserts the following claims: (1) a claim that the
Department retaliated against him "for complaining of racial discrimination within the
Department," in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq.; (2) a claim that the Department subjected him to racial discrimination in violation of Title
VII; (3) a claim that Mattox and Woodward each subjected him to racial discrimination and
retaliation in violation of the Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution and 42 U.S.C. §§ 1981 and 1983; and (4) a claim that Mattox and
Woodward subjected him to racial discrimination and retaliation in violation of the aider and
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abettor provision of the New York State Human Rights Law ("NYSHRL"), New York Executive
Law § 296(6). (Id. at ¶¶ 62, 67-69.)
B.
Parties' Briefing on Defendants' Motion to Dismiss
1.
Defendants' Memorandum of Law
Generally, in support of their motion to dismiss Plaintiff's Complaint, Defendants
advance four arguments: (1) Plaintiff's Title VII claims should be dismissed as untimely because
he filed his administrative complaint with the EEOC on December 24, 2013, more than 300 days
after the date he was notified that he would be terminated (February 7, 2013);2 (2) all of
Plaintiff's claims against Woodward should be dismissed because he has failed to allege facts
plausibly suggesting that Woodward was personally involved in either Plaintiff's termination or
the determination not to recommend Plaintiff for another position working for New York State;
(3) Plaintiff's §§ 1981 and 1983 claims must be dismissed because (a) Plaintiff's Complaint fails
to allege facts plausibly suggesting that his employment was terminated because of his race, and
(b) Plaintiff's Complaint alleges other, nondiscriminatory reasons for Plaintiff's termination,
specifically, ODAA was stripped of its responsibilities for conducting EEO investigations due to
its tardiness in providing information to the EEOC and NYSDHR and complaints about the
manner it in which it conducted those investigations; and (4) Plaintiff's retaliation claims must be
dismissed because his Complaint fails to allege facts plausibly suggesting that he engaged in a
2
Plaintiff's Complaint alleges that he filed a timely administrative complaint with
the EEOC, while he did not file those documents with his Complaint. (Dkt. No. 1 at ¶ 8.)
Defendants have attached, as exhibits to their motion to dismiss, Plaintiff's administrative
complaint, filed with the EEOC on December 24, 2013, and the EEOC's Dismissal and Notice of
Rights, dismissing Plaintiff's complaint as "not timely filed[.]" (Dkt. No. 17, Attach. 1, at 17,
31.)
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protected activity under Title VII or the NYSHRL. (See generally Dkt. No. 17, Attach. 1 [Defs.'
Memo. of Law].)
2.
Plaintiff's Opposition Memorandum of Law
Generally, in opposition to Defendants' motion to dismiss, Plaintiff advances five
arguments: (1) his Title VII retaliation claim is timely because, within 300 days of the filing of
his EEOC complaint, Mattox first advised Plaintiff that he would terminate him within days
unless he agreed to retire, while also telling Plaintiff that he would give him a negative
recommendation if he sought another State position; (2) his Title VII claims (both of retaliation
and discrimination) are timely because the oral notice that his services "would no longer be
needed," first received more than 300 days before he filed his EEOC complaint, was "indefinite,"
and he did not "know definitively that he would be terminated" until March 8, 2013 (i.e., also
within 300 days of the filing of his EEOC complaint); (3) he has alleged facts plausibly
suggesting that Woodward was personally involved in adverse actions taken against him,
specifically, that Woodward informed him that ODAA was being stripped of its function of
investigating departmental EEO complaints; (4) he has alleged facts plausibly suggesting that he
was subjected to discrimination based upon his race in two ways, specifically, that (a) Defendants
"acceded to the discriminatory attitudes of others within the Department who voiced displeasure
with the racial make-up of the ODAA," and (b) Defendants subjected "[P]laintiff and his
predominately African-American staff" to disparate treatment by assigning ODAA's "EEO
investigative function" to "an all-white office, the OIA"; (5) he has alleged facts plausibly
suggesting that he engaged in a protected activity in that he (a) complained (to both Woodward
and Mattox) that the Department's decision to transfer the responsibility to conduct EEO
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investigations to the OIA, "which was completely white," was apparently "rooted in
discrimination," (b) complained of disparate treatment by noting to Woodward that "other
similarly-sized offices" were not stripped of their responsibilities even though they had delays
similar to those experienced by ODAA in reporting to the EEOC and NYSDHR, (c) complained
of "widespread discrimination" within the Department, and (d) complained to Mattox,
Woodward, and the Department's legal counsel about "specific acts of discrimination" directed at
identified ODAA employees while they were at the Buffalo DO. (See generally Dkt. No. 24
[Plf.'s Opp'n Memo. of Law].)
3.
Defendants' Reply Memorandum of Law
Generally, in reply to Plaintiff's opposition, Defendants advance five arguments: (1)
Plaintiff's Title VII claims are time-barred because he filed his EEOC charge more than 300 days
after he received notice of termination of his employment, and any other factual predicate for his
claims, such as removal of ODAA's investigatory functions, occurred before that time as well; (2)
any Title VII claim predicated upon the alleged threat that Plaintiff would be given a negative
reference fails to state a cause of action upon which relief can be granted because Plaintiff does
not allege that Mattox provided negative information about him to a prospective employer, or
that he even applied for other positions; (3) Plaintiff has not alleged facts plausibly suggesting
that he engaged in a protected activity outside of his job duties; (4) Plaintiff has not alleged facts
plausibly suggesting that Mattox or Woodward were personally involved in any discrimination
against Plaintiff; (5) Plaintiff has not alleged facts plausibly suggesting that Mattox or Woodward
"acceded to" the discriminatory attitudes of others within the Department because (a) Plaintiff
has not alleged that any employees complained of ODAA's manner of handling of investigations
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based upon Plaintiff's race, and (b) any comments made by Buffalo DO employees during
training in February 2013 occurred after Plaintiff was notified of his termination and after
ODAA's investigatory functions had been removed. (See generally Dkt. No. 25 [Defs.' Reply
Memo. of Law].)
II.
GOVERNING LEGAL STANDARD
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain” pleading
standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at
212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by
requiring the above-described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2)
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requires that the pleading contain a statement that “give[s] the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212, n.17
(citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in
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detail the facts upon which [the claim is based],” it does mean that the pleading must contain at
least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Iqbal, 129 S.Ct. at
1949. “[D]etermining whether a complaint states a plausible claim for relief . . . [is] a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is
entitled to relief.” Id. at 1950 (internal quotation marks and citations omitted). However, while
the plausibility standard “asks for more than a sheer possibility that a defendant has acted
unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly,
a pleading that only “tenders naked assertions devoid of further factual enhancement” will not
suffice. Id. (internal citations and alterations omitted). Rule 8 “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted).
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III.
ANALYSIS
A.
Whether Plaintiff's Title VII Claims Predicated on Events Occurring Prior
to February 27, 2013, Must Be Dismissed as Untimely
After carefully considering this matter, and for the reasons set forth in Defendants'
memoranda of law, the Court answers this question in the affirmative. (Dkt. No. 17, Attach. 1, at
3-4 [Defs.' Memo. of Law]; Dkt. No. 25 at 2-3 [Defs.' Reply Memo. of Law].) To those reasons,
the Court adds the following analysis.
A plaintiff who wishes to pursue a federal employment discrimination suit under Title VII
must file a charge with the EEOC within 300 days of the alleged unlawful employment practice
or challenged discriminatory act. 42 U.S.C. § 2000e-5(e)(1); see also Petrosino v. Bell Atl., 385
F.3d 210, 219 (2d Cir. 2004). Plaintiff's EEOC charge was filed on December 24, 2013, and any
claim based upon an allegedly unlawful employment practice that occurred before February 27,
2013, is therefore time-barred. Plaintiff's Complaint alleges that he learned "[w]ithin a few days
of" November 26, 2012, that ODAA would no longer be tasked with investigating EEO
complaints within the Department." (Dkt. No. 1 at ¶¶ 24, 26.) Moreover, Plaintiff's Complaint
alleges that, on February 7, 2013, he was notified, without equivocation, "that his services would
no longer be needed by the Department," but that he would be permitted to reach 30 years of
service, a milestone he was scheduled to reach in June 2013. (Id. at ¶¶ 40-41.) See also Flaherty
v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000) ("In discriminatory discharge cases . . . the
illegal act is often the decision to terminate the employee, and the limitations period begins to run
on the date that the employer gives definite notice of that decision to the employee."). Plaintiff
was given definite notice that his employment was terminated (effective after he reached 30 years
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service, if he chose to remain until that time) more than 300 days before his EEOC charge was
filed.3 Accordingly, the Court concludes that any Title VII claim predicated on his termination or
any event that occurred before that time is also time-barred and is therefore dismissed.
B.
Whether Plaintiff's Title VII Claims Predicated on Mattox's Threat to
Provide a Poor Recommendation to Prospective Employers Must Be
Dismissed
After careful consideration, and for the reasons set forth in Defendants' reply
memorandum of law, the Court answers this question in the affirmative. (Dkt. No. 25 at 3-4
[Defs.' Reply Memo. of Law].) To those reasons, the Court adds the following analysis.
Plaintiff cites case law for the point of law that providing negative references regarding
an employee in retaliation for the employee's participation in a protected activity may give rise to
a Title VII retaliation claim.4 (Dkt. No. 24 at 7.) However, conspicuously lacking from
Plaintiff's Complaint is any allegation that (1) he actually sought other employment after his
termination or (2) Mattox actually provided a negative reference to a prospective employer. See,
e.g., Blutreich v. N. Shore-Long Island Jewish Health Sys., Inc. 13-CV-8583, 2015 WL 1515255,
at *4-5 (S.D.N.Y. Apr. 2, 2015) (concluding that plaintiff failed to state a Title VII retaliation
claim where she alleged that defendant doctor and another doctor provided certain statements to
3
The Court notes that Plaintiff does not argue that any grounds for tolling this
limitations period applies.
4
See, e.g., Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178-79 (2d Cir. 2005)
(explaining that a retaliation claim may lie where an employer "retaliatorily furnishe[s] a negative
job reference" if plaintiff can establish that the reference constituted an adverse employment
action); Pantchenko v. C. B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam)
("[A]ppellant's complaint clearly alleges that Dolge refused to provide her with post-employment
reference letters in retaliation for her earlier filing of an employment discrimination charge with
the EEOC.").
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plaintiff's "reference checker," but "fail[ed] to make any non-conclusory factual allegations that
[d]efendants made similar statements to actual prospective employers of Plaintiff's"); cf. Sarno v.
Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999) ("Where . . . there is no
admissible evidence that the statements of a former employer caused or contributed to the
rejection by the prospective employer, the plaintiff has failed to present a prima facie case [of
retaliation under the Americans with Disabilities Act].") (citing Bailey v. USX Corp., 850 F.2d
1506, 1508 [11th Cir. 1988] [concluding that plaintiff failed to establish Title VII retaliation
claim where he failed to prove that a prospective employer's failure to hire him was casually
related to a negative reference by his former employer]). As a result, the Court concludes that
Plaintiff's Complaint does not allege facts plausibly suggesting that Defendants' retaliated against
him by threatening to provide a poor recommendation to prospective employers state a Title VII
claim based on his allegation that Mattox asserted that he would provide a prospective employer
with a negative recommendation.5
For these reasons, and the reasons set forth in Part III.A of this Decision and Order,
Plaintiff's Title VII claims are dismissed.
5
Plaintiff alleges that he advised Mattox that "he would retire from State service"
"[b]ased on" Mattox's "threats to immediately terminate" him and to provide a "negative
reference" to prospective employers. (Dkt. No. 1 at ¶ 57.) However, Plaintiff's Complaint
provides no further factual amplification regarding whether Mattox took any steps to carry out
that threat or Plaintiff's efforts (if any) to seek other employment despite the theat. Moreover, the
Court notes that "[t]hreats of retaliation standing alone do not generally constitute adverse
employment actions." Rivers v. New York City Housing Auth., 11-CV-5065, 2016 WL 1305161,
at *16 (E.D.N.Y. Mar. 31, 2016) (citing Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247,
269 [E.D.N.Y. 2012]); accord, Gross v. Home Depot U.S.A., Inc., 386 F. Supp. 2d 296, 298 n.2
(S.D.N.Y. 2005).
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C.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that Mattox and/or
Woodward Subjected Him to Racial Discrimination
After careful consideration, and for the reasons set forth in Defendants' memoranda of
law, the Court answers this question in the negative. (Dkt. No. 17, Attach. 1, at 6-8 [Defs.'
Memo. of Law]; Dkt. No. 25 at 6-9 [Defs.' Reply Memo. of Law].) To those reasons, the Court
adds the following analysis.6
In opposition to Defendants' motion, Plaintiff argues that his Complaint alleges facts
plausibly suggesting that he was subjected to racial discrimination in two ways: (1) Defendants
"acceded to the discriminatory attitudes of others within the Department who voiced displeasure
6
A few words on the various authorities cited in support of Plaintiff's claims is
appropriate. Section 1981 of Title 42, United States Code, "outlaws discrimination with respect
to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such
as employment[.]" Patterson v. County of Oneida, N.Y., 375 F.3d 206, 224 (2d Cir. 2004).
"Section 1983 'is not itself a source of substantive rights,' but "merely provides 'a method for
vindicating federal rights elsewhere conferred,' such as those conferred by § 1981." Patterson,
375 F.3d at 225 (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 [1979]). "Indeed, 'the
express cause of action for damages created by § 1983 constitutes the exclusive federal remedy
for violation of the rights guaranteed by § 1981 by state governmental units . . . .'" Id. (quoting
Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 733 [1989]). "'A Title VII plaintiff is not
precluded from bringing a concurrent § 1983 cause of action,' such as a claim for denial of equal
protection, 'so long as the § 1983 claim is based on a distinct violation of a constitutional
right[.]'" Id. (quoting Gierlinger v. New York State Police, 15 F.3d 32, 34 [2d Cir. 1994]). There
are, however, "several significant differences" between Title VII claims and 42 U.S.C. §§
1981/1983 claims. Id. First, the statute of limitations applicable to §§ 1981 and 1983 claims in
New York is three years, rather than the 180- or 300-day periods applicable to Title VII claims.
Id. Second, unlike Title VII, individuals may be held liable under §§ 1981 and 1983. Id. at 226;
accord, Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 151 n.6 (2d Cir. 2014) (explaining that
"[t]he substantive standards under [Title VII and 42 U.S.C. § 1981] are similar, but, unlike Title
VII, section 1981 permits a plaintiff, under certain circumstances, to sue persons other than
employers"). Third, "although in certain circumstances a Title VII claim may be established
through proof of a defendant's mere negligence, without a showing of discriminatory intent, a
plaintiff pursuing a claimed violation of § 1981 or denial of equal protection under § 1983 must
show that the discrimination was intentional[.]" Patterson, 375 F.3d at 226 (citations omitted);
accord, Reynolds v. Barrett, 685 F.3d 193, 201 (2d Cir. 2012).
-17-
with the racial make-up of the ODAA," and (2) Defendants subjected "[P]laintiff and his
predominately African-American staff" to disparate treatment by assigning ODAA's "EEO
investigative function" to "an all-white office, the OIA." (Dkt. No. 24 at 12-14 [Plf.'s Opp'n
Memo. of Law].)7 The Court concludes that Plaintiff has not alleged facts plausibly suggesting
that he was subjected to racial discrimination based on either of these arguments for four reasons.
First, Plaintiff's Complaint does not allege facts plausibly suggesting that Woodward or
Mattox made any statements even remotely reflecting a discriminatory animus. See generally
Boza-Meade v. Rochester Housing Auth., 14-CV-6356, 2016 WL 1157643, at *12 (W.D.N.Y.
Mar. 21, 2016) ("Plaintiff has not provided any allegations that are racially-discriminatory on
their face, nor has she provided any allegations that would raise the logical inference that she was
being discriminated against[.]"). To the contrary, the only statements attributed to Woodward
were his race-neutral explanations that ODAA was being relieved of its investigatory duties
because ODAA was "consistently tardy" in responding to requests from the EEOC and NYSDHR
and that employees had complained about the manner in which ODAA handled investigations.
(Dkt. No. 1 at ¶¶ 28-29.) Although Woodward also noted that McGough had been the subject of
complaints, Plaintiff does not allege that Woodward conveyed any complaints about Plaintiff
specifically. (Id. at ¶ 29.)
7
"Discrimination claims under § 1981, § 1983, and NYSHRL are analyzed under
the same framework and pleading standard as Title VII claims." Awad v. City of New York, 13CV-5753, 2014 WL 1814114, at *5 (E.D.N.Y. May 7, 2014) (citing Ruiz v. Cty. of Rockland, 609
F.3d 486, 491 [2d Cir. 2010] and Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 [2d Cir.
2000]) (further citations omitted). To establish a discrimination claim, a plaintiff must show "(1)
that she is a member of a protected class, (2) that she is qualified for the position at issue, (3) that
she was subject to a materially adverse employment action, and (4) that the circumstances give
rise to an inference of invidious discrimination." Lore v. City of Syracuse, 670 F.3d 127, 169 (2d
Cir. 2012) (citations omitted). Defendants' argument is focused on the fourth element.
-18-
Second, with regard to his allegations preceding the removal of ODAA's responsibility
for investigating EEO complaints, Plaintiff alleges that, during a town hall meeting at the Buffalo
DO, employees "voiced criticisms of ODAA" and McGough, an ODAA investigator. (Dkt. No.
1 at ¶ 25.) However, Plaintiff's Complaint does not identify the Buffalo DO employees who
allegedly criticized ODAA or McGough (or their position[s] with the Department), allege the
number of employees who "voiced criticisms," allege whether he (as opposed to ODAA
generally) was the target of any criticism, or explain what the criticisms entailed, other than that,
according to Woodward, they concerned "the way in which" ODAA "handled" its investigations.
(Id. at ¶ 29.) These allegations concerning remarks made by Buffalo DO personnel (who are not
alleged to have been decision makers with regard to Plaintiff's duties or employment status) do
not plausibly suggest that the ultimate decision to alter ODAA's responsibilities was motivated
by discriminatory animus based on Plaintiff's race, or that Mattox or Woodward capitulated to
discriminatory attitudes harbored by the unidentified employees who voiced unspecified
criticisms of ODAA. See, e.g., Perry v. NYSARC, Inc., 424 F. App'x 23, 25 (2d Cir. 2011)
(summary order) ("Perry points to the remarks of an unidentified human resources officer as
evidence of a discriminatory motive on the part of NYSARC. Yet there was nothing in the
officer's expression of concern to suggest that the employer's decision to alter Perry's duties was
motivated by assumptions or attitudes regarding the abilities of persons with epilepsy as a class.")
(footnote omitted). In the absence of any such allegations, Plaintiff's assertion that these
criticisms "might be rooted in discrimination" because McGough's job was to investigate EEO
complaints, and that the Department then acceded to these unspecified views by thereafter
tasking OIA with EEO investigations, is too conclusory and speculative to withstand Defendants'
motion to dismiss.
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Third, as Defendants correctly note, any "discriminatory attitudes" reflected in statements
allegedly made by Buffalo DO personnel in February 2013 (as summarized by Williams and
forwarded to Plaintiff, who then forwarded the summary to Woodward and Mattox) do not
plausibly suggest racial discrimination directed at Plaintiff on the part of Woodward and Mattox.
(Dkt. No. 25 at 8 [Defs.' Reply Memo. of Law].) As an initial matter, Woodward and Mattox
could not have "acceded to the discriminatory attitudes" reflected by such statements because
ODAA's investigatory function had been handed off to OIA several months earlier, and Plaintiff
had already been notified of his termination. (Dkt. No. 1 at ¶¶ 26, 40, 45-51.) Moreover,
Plaintiff's Complaint does not allege facts plausibly suggesting that Mattox and/or Woodward
endorsed those statements or "acceded" to those employees' sentiments by sending non-minority
personnel to the Buffalo DO to conduct classes or focus groups.
Fourth, Plaintiff has not alleged facts plausibly suggesting that he was subjected to
disparate treatment as compared to any similarly situated employee outside of his protected
group. "To be 'similarly situated,' the individuals with whom [plaintiff] attempts to compare
herself must be similarly situated in all material respects." Spencer v. Holley Cent. Sch. Dist.,
734 F. Supp. 2d 316, 318-19 (W.D.N.Y. 2010) (quoting Shumway v. United Parcel Serv., 118
F.3d 60, 64 [2d Cir. 1997]). “[T]he standard for comparing conduct requires a reasonably close
resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a
showing that both cases are identical." Ruiz, 609 F.3d at 494 (quoting Graham v. Long Island
R.R., 230 F.3d 34, 40 [2d Cir. 2000]). "Ordinarily, '[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." Brown v. Daikin America Inc., 756 F.3d 219, 230 (2d Cir. 2014) (quoting Graham,
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230 F.3d at 39). However, "the court 'still must determine whether, based on a plaintiff's
allegations in the complaint, it is plausible that a jury could ultimately determine that the
comparators are similarly situated.'" Vaher v. Town of Orangetown, N.Y., 916 F. Supp. 2d 404,
434 (S.D.N.Y. 2013) (quoting Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815
F.Supp.2d 679, 697-98 [S.D.N.Y. 2011]) (granting defendants' motion to dismiss equal
protection claim because the complaint was "devoid of factual allegations" regarding any
similarly situated individuals).
In this case, Plaintiff's Complaint alleges only that (1) ODAA's investigatory function was
transferred to OIA, which, "[u]pon information and belief . . . did not have any racial or ethnic
minorities on staff," and (2) although a heavy workload "occasionally" caused ODAA a "delay in
responding" to requests from the EEOC and the NYSDHR, "other similarly-sized offices within
the Department faced the same issue, but no other office had been stripped of their
responsibilities as a result." (Dkt. No. 1 at ¶¶ 28, 35.) Setting aside the fact that Plaintiff appears
to concede one of Woodward's explanations as to why ODAA was relieved of its investigatory
function (i.e., tardiness), Plaintiff's Complaint identifies neither a specific instance of disparate
treatment nor a specific, similarly situated comparator who was treated differently.8 See, e.g.,
Yan v. Ziba Mode Inc., 15-CV-0047, 2016 WL 1276456, at *5 (S.D.N.Y. Mar. 29, 2016)
(dismissing discrimination claim premised in part on disparate treatment where plaintiff's
8
Plaintiff alleges that "similarly-sized offices," rather than any identified, similarly
situated individuals, were treated more favorably than he and/or ODAA. Even assuming that
such a comparison may conceivably provide a viable basis for alleging or showing racial
discrimination (a proposition for which Plaintiff cites no authority), Plaintiff identifies no
particular "office," the racial composition, qualifications, and/or duties of its staff, the manner in
which any such office "faced the same issue" as ODAA, or what exactly that "same issue" is.
(Dkt. No. 1 at ¶ 35.)
-21-
complaint alleged that white employees were treated differently but was "otherwise silent as to
these comparators, and fail[ed] to plead any facts regarding how these employees' identities,
experience levels, and conduct compared to Plaintiff's") (citations and internal quotation marks
omitted); Ray v. Weit, 13-CV-6416, 2016 WL 1229056, at *5 (E.D.N.Y. Mar. 28, 2016) (noting
that plaintiff failed to allege purported comparators' "job titles, supervisors, or any other facts
from which the Court could infer such," or that they "engaged in comparable conduct") (citation
and internal quotation marks omitted); Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396,
408 (S.D.N.Y. 2014) (concluding that plaintiff failed to allege facts plausibly suggesting
disparate treatment because, "[w]ithout factual amplification, the general allegation of disparate
treatment related to an unspecific class of Caucasian persons is simply not sufficient to 'nudge . .
. [her] claims across the line from conceivable to plausible'") (quoting Twombly, 550 U.S. at
570).
For all of these reasons, as well as those set forth in Defendants' memoranda of law, the
Court concludes that Plaintiff has not alleged facts plausibly suggesting that he was subjected to
discrimination based upon his race under § 1981, § 1983, and the NYSHRL.9 Accordingly,
Defendants' motion to dismiss is granted with respect to Plaintiff's claims of discrimination
pursuant to 42 U.S.C. §§ 1981 and 1983, the Equal Protection Clause, and NYSHRL § 296(6).10
9
Moreover, because the legal standard governing Plaintiff's discrimination claims
under § 1981, § 1983, and the NYSHRL also governs his discrimination claim against the
Department under Title VII, his failure to allege facts plausibly suggesting that he was subjected
to racial discrimination also constitutes an alternative ground for dismissal of that time-barred
Title VII claim.
10
Because the Court concludes that Plaintiff has failed to allege facts plausibly
suggesting he was subjected to discrimination based on his race, "it necessarily follows that the
Plaintiff's claims against [individual] employees under an 'aiding and abetting theory' also must
-22-
D.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that He Engaged
in a Protected Activity for Purposes of His Retaliation Claims
After careful consideration, and for the reasons set forth in Plaintiff's opposition
memorandum of law, the Court answers this question in the affirmative. (Dkt. No. 24 at 14-22
[Plf.'s Opp'n Memo. of Law].) To those reasons, the Court adds the following analysis.
As an initial matter, Defendants argue only that Plaintiff's Complaint does not allege facts
plausibly suggesting that he engaged in a protected activity under §§ 1981 and 1983 or the
NYSHRL; in other words, Defendants do not dispute that Plaintiff has adequately pleaded the
other elements necessary to state a claim of retaliation.
As with his discrimination claims, "[a]ll of [P]laintiff['s] retaliation claims [pursuant to
42 U.S.C. §§ 1981, 1983, and the NYSHRL] are analyzed pursuant to Title VII principles."
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (citing Patterson, 375 F.3d at 225 ["Most of
the core substantive standards that apply to claims of discriminatory conduct in violation of Title
VII are also applicable to claims of discrimination in employment in violation of § 1981 or the
Equal Protection Clause"]; Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 [2d Cir.
1996] [We consider [plaintiff's] state law claims in tandem with her Title VII claims because
New York courts rely on federal law when determining claims under the New York [State]
Human Rights Law."]); accord, Vega v Hempstead Union Free Sch. Dist., 801 F.3d 72, 91 (2d
Cir. 2015) ("[T]he elements of a retaliation claim based on an equal protection violation under §
fail." Lee v. Winthrop Univ. Hosp., 13-CV-5003, 2015 WL 7161955, at *20 (E.D.N.Y. Nov. 13,
2015) (citing, inter alia, Ying v. City Univ. of New York, 10-CV-4990, 2011 WL 6337666, at *2
[E.D.N.Y. Dec. 19, 2011] [explaining that, because plaintiff failed to "state a viable claim for sex
discrimination, her claim for aiding and abetting sex discrimination fails as well."]).
Accordingly, Plaintiff's claims pursuant to New York Executive Law § 296(6), to the extent
predicated on a claim that he was subjected to racial discrimination, are also dismissed.
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1983 mirror those under Title VII."). To establish a prima facie case of retaliation, "a plaintiff
must demonstrate that '(1) she engaged in protected activity; (2) the employer was aware of that
activity; (3) the employee suffered a materially adverse action; and (4) there was a causal
connection between the protected activity and that adverse action.'" Kelly v. Howard I. Shapiro
& Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (quoting Lore, 670 F.3d at
157); accord, Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir.
2011); Hicks, 593 F.3d at 164.
With regard to the first element, "[p]rotected activities typically refer to 'actions taken to
protest or oppose statutorily prohibited discrimination,' such as 'the filing of a formal complaint
with the Equal Employment Opportunity Commission or making complaints to management
about an activity that the employee reasonably believes violates the law." Venezia v. Luxoticca
Retail N. Am. Inc., 13-CV-4467, 2015 WL 5692146, at *11 (S.D.N.Y. Sept. 28, 2015) (quoting
Gioia v. Forbes Media LLC, 09-CV-6114, 2011 WL 4549607, at *10 [S.D.N.Y. Sept. 30, 2011],
aff'd, 501 F. App'x 52 [2d Cir. 2012]). Courts within the Second Circuit have analyzed whether a
plaintiff engages in a protected activity (or plausibly alleges doing so) for purposes of a
retaliation clam pursuant to § 1981, § 1983, and the NYSHRL under the same standard as
whether a plaintiff engages in a protected activity (or plausibly alleges doing so) for purposes of a
retaliation claim pursuant to Title VII. See, e.g., Littlejohn v. City of New York, 795 F.3d 297,
316, 320 (2d Cir. 2015) (concluding that plaintiff's complaint alleged facts plausibly suggesting
that she engaged in a protected activity under Title VII's anti-retaliation provisions, 42 U.S.C. §
2000e-3[a], and that her Title VII and § 1981 retaliation claims therefore should not have been
dismissed as to certain defendants); Nieblas-Love v. New York City Housing Auth., 14-CV-5444,
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2016 WL 796845, at *6-7 (S.D.N.Y. Feb. 26, 2016) (explaining that, "[f]or each of Plaintiff's
[retaliation] claims [pursuant to, inter alia, Title VII, § 1981, and the NYSHRL], 'protected
activity' means action taken to protest or oppose statutorily prohibited discrimination") (citing,
inter alia, Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313 n.11 [2004]); Cooper v. New
York Dep't of Labor, 14-CV-0717, 2015 WL 5918263, at *6-7 (N.D.N.Y. Oct. 9, 2015)
(Suddaby, J.) (concluding that plaintiff did not allege facts plausibly suggesting that she engaged
in a protected activity under Title VII and Littlejohn, and dismissing plaintiff's Title VII and
NYSHRL retaliation claims).
The issue here is the extent to which Plaintiff's complaints of discrimination qualify as
protected activities under the opposition clause, rather than merely falling within his job
responsibilities as the director of ODAA. In his Complaint, Plaintiff alleges that, for at least a
portion of the time relevant to his claims, he conducted discrimination investigations and
employed other measures to prevent and address discrimination within the Department. (Dkt.
No. 1 at ¶¶ 11-26.)
The Second Circuit's opinion in Littlejohn, although primarily concerned with the antiretaliation provisions of Title VII, is instructive. "The opposition clause [contained in Section
704(a) of Title VII] makes it unlawful for an employer to retaliate against an individual because
she 'opposed any practice' made unlawful by Title VII, while the participation clause makes it
unlawful to retaliate against an individual because she 'made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under' Title VII."
Littlejohn, 795 F.3d at 316 (quoting Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 48 [2d Cir.
2012]); accord, 42 U.S.C. § 2000e-3(a). The Court explained that,
-25-
[t]o the extent an employee is required as part of her job duties to
report or investigate other employees' complaints of discrimination,
such reporting or investigating by itself is not a protected activity
under § 704(a)'s opposition clause, because merely to convey
others' complaints of discrimination is not to oppose practices
made unlawful by Title VII. But if an employee–even one whose
job responsibilities involve investigating complaints of
discrimination–actively "support[s]" other employees in asserting
their Title VII rights or personally "complain[s]" or is "critical"
about the "discriminatory employment practices" of her employer,
that employee has engaged in a protected activity under § 704(a)'s
opposition clause.
Littlejohn, 795 F.3d at 318 (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 [2d Cir.
1990]). As noted above, the Second Circuit analyzed both of plaintiff's retaliation
claims–pursuant to Title VII and § 1981–together, concluding that plaintiff adequately alleged
that she engaged in a protected activity for purposes of both claims as to certain defendants. Id.
at 320.
In the present case, construed liberally, Plaintiff's Complaint alleges facts plausibly
suggesting that he did the following: (1) complained to Mattox and Woodward of prevalent
discrimination in the Department (citing two specific examples in separate Department offices);
(2) reinforced the imperative that the Department had to be "willing to take action" to address
these discrimination issues; (3) conveyed his good-faith concerns that complaints directed at
McGough and ODAA may have originated with individuals who McGough was already tasked
with investigating for discrimination-related conduct; and (4) after its investigatory function was
taken from it and given to OIA (which had no racial or ethnic minorities on staff), advocated for
the reinstatement of that function with ODAA. (See generally Dkt. No. 1.)11 On that basis,
11
In light of these allegations, the Court rejects Defendants' argument that Plaintiff
has merely expressed "disagreement with internal complaint-handling procedures[.]" (Dkt. No.
-26-
Plaintiff has done more than merely convey others' complaints concerning discrimination
pursuant to the responsibilities attendant to his role with ODAA. See Littlejohn, 795 F.3d at 319
(noting that plaintiff was "not simply conveying others' complaints of discrimination," but rather
"was complaining about what she believed was unlawful discrimination in [a] personnel
decision-making process" during a merger); accord, e.g., Hagan v. City of New York, 39 F. Supp.
3d 481, 501 (S.D.N.Y. 2014) (concluding that plaintiff plausibly pleaded a retaliation claim
where her "allegations suggest that . . . she advocated for systemic reform and the rights of
minority employees and, in so doing, became a thorn in the side of officials who wanted to
persist in unlawful discriminatory practices. This is quintessential opposition activity that goes
beyond mere participation in her role as an EEO Officer."); Adams v. Northstar Location Servs.,
LLC, 09-CV-1063, 2010 WL 3911415, at *4 (W.D.N.Y. Oct. 5, 2010) (concluding that plaintiff's
assertion to management "that it would be 'inappropriate' to fire certain minority employees"
constituted a protected activity, but that plaintiff's "actions in investigating [a] complaint of racebased harassment would not constitute protected activity" because those actions were within the
scope of her employment as human resources director); cf. Cooper, 2015 WL 5918263, at *6
(explaining that plaintiff alleged facts plausibly suggesting that she "personally complained" of,
and was "critical" about, "proposed changes to complaint-handling procedures within state
agencies," but that plaintiff failed to allege facts plausibly suggesting that defendants "were
engaging in unlawful discrimination through the new complaint-handling procedures").
25 at 6 [Defs.' Reply Memo. of Law] [citing Brush v. Sears Holdings Corp., 466 F. App'x 781,
786 (11th Cir. 2012) (summary order)].)
-27-
For these reasons, as well as those set forth in Plaintiff's opposition memorandum of law,
the Court concludes that Plaintiff has, albeit barely, alleged facts plausibly suggesting that he
engaged in a protected activity for purposes of his retaliation claims. Accordingly, Defendants'
motion to dismiss Plaintiff's retaliation claims against Mattox and Woodward under §§ 1981 and
1983, as well as his claim pursuant to the aider and abettor provision in New York Executive
Law § 296(6) in connection therewith, is denied.
E.
Whether Plaintiff Has Alleged Facts Plausibly Suggesting that Woodward
Was Personally Involved in Any Unlawful Retaliatory Conduct
After careful consideration, and for the reasons set forth in Plaintiff's opposition
memorandum of law, the Court answers this question in the affirmative. (Dkt. No. 24 at 9-11
[Plf.'s Opp'n Memo. of Law].) To those reasons, the Court adds the following analysis.
"In contrast to Title VII, individual liability is available under the NYSHRL, 42 U.S.C. §
1983, and 42 U.S.C. § 1981." Rodriguez v. Glen Cove City Sch. Dist., 14-CV-3815, 2016 WL
951524, at *6 (E.D.N.Y. Mar. 8, 2016). "Individuals may be personally liable under the NYHRL
and § 1981 where the individual possessed power to do more than carry out personnel decisions
made by others, or is shown to have actually participate[d] in the conduct giving rise to a
discrimination claim." Karam v. Cty. of Rensselaer, New York, 13-CV-1018, 2016 WL 51252, at
*18 (N.D.N.Y. Jan. 4, 2016) (D'Agostino, J.) (citations and internal quotation marks omitted);
accord, Allessi v. New York State Dep't of Corr. & Cmty. Supervision, 16 F. Supp. 3d 221, 226
(W.D.N.Y. 2014) (explaining that "a state employee may be held liable in his or her individual
capacity under [New York] Executive Law § 296(6) for aiding, abetting, inciting, compelling or
coercing a discriminatory act forbidden by NYSHRL."); see also Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 82 (2d Cir. 2015) ("[W]e hold that a state employee may bring a
-28-
retaliation claim under § 1983 against a supervisor who, acting under color of law, retaliates
against him for opposing discrimination in the terms of his employment."); Littlejohn, 795 F.3d
at 314 ("An individual may be held liable under §§ 1981 and 1983 only if that individual is
personally involved in the alleged deprivation.") (citations and internal quotation marks omitted);
Vosburgh v. Amer. Nat. Red Cross, 08-CV-0653, 2014 WL 4826688, at *13 (N.D.N.Y. Sept. 29,
2014) (Kahn, J.) ("To be found liable under [New York Executive Law § 296(6)], an individual
need not have supervisory or hiring and firing power but still must have actually participated in
the conduct giving rise to the claim of discrimination and engaged in direct, purposeful,
participation."); Frank v. Lawrence Union Free Sch. Dist., 688 F. Supp. 2d 160, 174 (E.D.N.Y.
2010) (noting that "the NYSHRL's aiding and abetting section imposes individual liability on a
person who 'actually participates' in the improper conduct [and t]he New York Court of Appeals
has never held otherwise"). Personal involvement for purposes of a NYSHRL claim will suffice
to establish personal involvement in behavior unlawful under 42 U.S.C. § 1983. See Feingold,
366 F.3d 138, 160 (2d Cir. 2004) ("Feingold has presented sufficient evidence to permit the
conclusion that all of the named individual defendants were personally involved in behavior
unlawful under the NYSHRL. . . . He has also, therefore, presented sufficient evidence to permit
the conclusion that they were personally involved in behavior that violates Section 1983.")
(citations and internal quotation marks omitted). Personal involvement may be established by
evidence showing that the following:
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
-29-
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference . . . by failing to act on
information indicating that unconstitutional acts were occurring.
Littlejohn, 795 F.3d at 314 (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365
F.3d 107, 127 [2d Cir. 2004]).
Courts in this Circuit have found personal involvement to exist where, for example, the
individual defendant (1) signed a written notice that the plaintiff would not be reinstated, or (2)
was involved in the decision to terminate the plaintiff. See, e.g., Pinero v. Long Island State
Veterans Home, 375 F. Supp. 2d 162, 169 (E.D.N.Y. 2005) (finding defendant was personally
involved where the complaint alleged that defendant "was the individual that signed the letter
that informed [plaintiff] that she would not be reinstated" and "was personally involved in the
decision to terminate the Plaintiff”); Duse v. IBM Corp., 748 F.Supp. 956, 968 (D.Conn. 1990)
(finding genuine issue of fact where a dispute existed regarding whether supervisor did more than
just sign a termination letter). On the other hand, courts have also held that "[i]nvolvement in
discussions that lead to a decision is not personal involvement under § 1983." Conklin v. Cty. of
Suffolk, 859 F. Supp. 2d 415, 441 (E.D.N.Y.2012) (quoting Zdziebloski v. Town of E. Greenbush,
N.Y., 336 F. Supp. 2d 194, 202 [N.D.N.Y. 2004] [Kahn, J.]).
In this case, when construed liberally, the crux of Plaintiff's allegations related to
Woodward (his direct supervisor) is that Woodward summarily advised Plaintiff that ODAA
would no longer be conducting EEO investigations, a function which was handed off to the OIA
(an office staffed by white personnel) after employees in the Buffalo DO criticized ODAA.12
12
Plaintiff does not allege facts plausibly suggesting that Woodward was personally
involved in the decision to terminate Plaintiff's employment or Mattox's threat to provide him
with a poor recommendation, or that Woodward acted improperly (or failed to act) with respect
-30-
(Dkt. No. 1 at ¶ 26 [Plf.'s Compl.]; accord, Dkt. No. 24 at 9-11 [Plf.'s Opp'n Memo. of Law].)
Moreover, Plaintiff alleges that Woodward disregarded his concerns (apparently without further
inquiry) that complaints lodged against ODAA and McGough may have been racially motivated.
(Dkt. No. 1 at ¶ 33.) Based upon the foregoing, the Court concludes that Plaintiff has, again
albeit barely, alleged facts plausibly suggesting that Woodward was personally involved in
conduct alleged to have been undertaken for the purpose of unlawfully retaliating against
Plaintiff. Accordingly, Defendants' motion to dismiss Plaintiff's claims as to Woodward on this
ground is denied.
ACCORDINGLY, it is
ORDERED that Defendants' motion to dismiss Plaintiff's Complaint for failure to state a
claim upon which relief can be granted (Dkt. No. 17) is GRANTED in part and DENIED in
part; and it is further
ORDERED that the following claims are DISMISSED from Plaintiff's Complaint (Dkt.
No. 1):
(1) Plaintiff's discrimination claim against the Department pursuant to Title VII;
(2) Plaintiff's retaliation claim against the Department pursuant to Title VII;
(3) Plaintiff's discrimination claims against Defendant Mattox pursuant to 42 U.S.C. §§
1981 and 1983, the Equal Protection Clause of the U.S. Constitution, and the aider and
abettor provision pursuant to New York State Human Rights Law § 296(6); and
to the written summary drafted by Williams and forwarded by Plaintiff. Moreover, Plaintiff does
not allege facts plausibly suggesting that his receipt of a negative performance evaluation in May
2013 was the result of any unlawful conduct by Woodward; rather, Plaintiff alleges that, from all
appearances, Woodward did not prepare, or even read, the negative performance evaluation
(which post-dated Plaintiff's notice of termination). (Dkt. No. 1 at ¶¶ 59-60.)
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(4) Plaintiff's discrimination claims against Defendant Woodward pursuant to 42 U.S.C.
§§ 1981 and 1983, the Equal Protection Clause of the U.S. Constitution, and the aider and
abettor provision pursuant to New York State Human Rights Law § 296(6); and it is
further
ORDERED that SURVIVING Defendants' motion are Plaintiff's retaliation claims
against Defendants Mattox and Woodward pursuant to 42 U.S.C. §§ 1981 and 1983 and the aider
and abettor provision pursuant to New York State Human Rights Law § 296(6); and it is further
ORDERED that Defendant New York State Department of Taxation and Finance is
dismissed from this action; and it is further
ORDERED that Defendants Mattox and Woodward file an answer to Plaintiff's
Complaint within FOURTEEN (14) DAYS of the date of this Decision and Order pursuant to
Fed. R. Civ. P. 12(a)(4)(A). This case is referred back to Magistrate Judge Hummel for a Rule
16 conference and the scheduling of pretrial deadlines.
Dated: July 5, 2016
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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