Rowe v. N.Y.S. Dept. of Tax & Finance

Filing 18

MEMORANDUM-DECISION & ORDER: GRANTING the # 8 Motion to Dismiss for Failure to State a Claim. The Clerk is directed to enter Judgment in favor of the defendant and close this case. Signed by Judge David N. Hurd on 7/10/2018. {Copy served upon the pro se plaintiff by regular and certified mail} (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------GEORGE ROWE,
Plaintiff,
-v-

1:17-CV-1390

N.Y.S. DEPT. OF TAX & FINANCE,
Defendant.
----------------------------------APPEARANCES:

OF COUNSEL:

GEORGE ROWE
Plaintiff, Pro Se
P.O. Box 12811
Albany, NY 12212
HON. BARBARA D. UNDERWOOD
Attorney General for the
State of New York
Attorneys for Defendant
The Capitol
Albany, NY 12224

MELISSA A. LATINO, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On December 28, 2017, pro se plaintiff George Rowe ("Rowe" or "plaintiff") filed this
civil rights action against his employer, defendant New York State Department of Taxation
and Finance ("NYSTF" or "defendant"). According to plaintiff's four-page form complaint and
144 pages of attached exhibits, defendant discriminated and retaliated against him in

violation of Title VII of the Civil Rights Act of 1964 ("Title VII") when it failed to promote him
on several different occasions.1
On February 7, 2018, NYSTF moved to dismiss Rowe's complaint pursuant to Federal
Rule of Civil Procedure ("Rule") 12(b)(6). The motion is fully briefed and will be considered
on the basis of the submissions without oral argument.
II. BACKGROUND2
In March of 1991, NYSTF hired Rowe, an African-American male, as a Grade 11 Tax
Compliance Representative. Compl. at 22.3 Plaintiff was promoted to Tax Technician
Trainee in June of 1993. Id. Around this time, he observed "what appeared to be an [sic]
Hispanic woman being loudly yelled at by a supervisor." Id. This made him "question[ ] if
[he] had made a good decision moving [to Albany]." Id.
During his two-year traineeship from 1993 to 1995, supervisor Herman Smith ("Smith")
made Rowe feel unwelcome. Compl. at 22. One day, Smith "stormed past" plaintiff and
struck him in the jaw with his left shoulder. Id. Plaintiff gave Earl Willis ("Willis"), a manager,
a "dated written complaint" about the incident but chose not to " go to Personnel" about it. Id.

1

Plaintiff's form complaint is the one ordinarily used for filing a 42 U.S.C. § 1983 action in this
District. As defendant correctly argues in its opening brief, any § 1983 claims would almost certainly be
barred by state sovereign immunity. However, plaintiff invokes Title VII's employment discrimination
protections and explains in his opposition memorandum that he did not intend to assert § 1983-based
claims. Accordingly, consideration of defendant's arguments on these points is unnecessary.
2

The following facts are taken from Rowe's complaint, attached exhibits, and his opposition
submission and are assumed true for purposes of resolving the motion to dismiss. See, e.g., Drake v. Delta
Air Lines, Inc., 147 F.3d 169, 170 n.1 (2d Cir. 1998) (per curiam) (approving district court's decision to deem
pro se plaintiff's complaint to include additional facts submitted in opposition to motion to dismiss); Crum v.
Dodrill, 562 F. Supp. 2d 366, 374 n.13 (N.D.N.Y. 2008) (treating pro se plaintiff's additional submissions in
opposition to a motion to dismiss as effectively amending the allegations in his complaint).
3

Pagination corresponds with CM/ECF.
-2-

At some point in early April of 1996, Rowe ran into Smith and Ira Hoke ("Hoke"),
another of his co-workers, in the bathroom. Compl. at 22. According to plaintiff, Smith made
a comment to Hoke that "appeared racial in nature" and that caused plaintiff "to become
concerned." Id. Plaintiff walked out of the bathroom. Id.
On December 30, 1996, NYSTF moved Rowe to the Registration Bond Unit as part of
an internal reorganization, and he was supervised there by Lois Defreest
("Defreest"). Compl. at 22. At some point thereafter, plaintiff filed a "non-contact grievance"
because he requested, but did not receive, a Performance Program that explained his
specific duties. Id. Plaintiff spent the next two years with the Registration Bond
Unit. Id. According to plaintiff, at some point Defreest asked her daughter's fiancé, a police
officer, to run a background check on him. Id.
On February 28, 1997, Rowe passed the Tax Auditor Trainee exam with a "100
score." Compl. at 22. Plaintiff interviewed for a promotion at multiple locations and
ultimately received an offer from NYSTF's Brooklyn office. Id. at 22-23. However, plaintiff
filed a discrimination complaint against the Brooklyn representatives because he believed
"management had inappropriately rushed the interview process." Id. at 23. Plaintiff pursued
this grievance for the next eighteen months. Id.
On July 25, 2002, Rowe scored "#3 on the Excise Tax Technician I exam and was
passed over for promotion for no good reason." Compl. at 23. According to plaintiff, he "was
viewed as an anomaly in the data and targeted to be passed over rather than rewarded for
the mountains of work [he] did to achieve high scores." Id.
On July 7, 2003, Harry Powers ("Powers"), a supervisor, became "very irritated and
exhibited a hostile act some might classify as violence." Compl. at 23. According to Rowe,
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Powers "violently snatched" papers from his hands and stormed away. Id. at 23-24. Just
over a week later, Powers injured plaintiff "when he tried to snatch a pen out of [his]
hand." Id. at 24. Plaintiff sought medical attention for the injury. Id.
After this incident, Rowe "filed reports," but "certain management" told him that he was
not the victim of violence. Compl. at 30. Instead, these unidentified members of
management indicated plaintiff had actually injured himself. Id. Thereafter, these
management members brought "false charges" against plaintiff accusing him of filing a false
medical report. Id. at 57. According to plaintiff, "Labor Relations" used these false charges
to attempt to terminate him. Id. However, after "maybe a year or so," an administrative law
judge rejected the charges against plaintiff, awarded him most of his back pay, and moved
him from the Miscellaneous Tax department to the Income Tax department. Id.
In 2005 and 2006, Rowe was not promoted despite scoring in the top three on a
necessary exam. Compl. at 23. Plaintiff's complaint also includes rejection notices from a
series of other jobs. See, e.g., Compl. at 67-69, 77, 100, 110-111. However, these notices
only indicate another candidate was selected. Id. In addition, plaintiff indicates that he
turned down job offers for "Auditor/Sr. Accountant" positions in 2014 because staying in his
current position—Grade 14 Tax Technician I—would result in more favorable retirement
benefits. Id. at 59. Thereafter, plaintiff appears to have applied for, and later been denied
promotion to, a number of different positions between June 2, 2016 and May 10, 2017. See
Compl. 64-121.
On May 11, 2017, Rowe filed an administrative complaint with the New York State
Division of Human Resources ("DHR") alleging constant discrimination beginning as early as
1993. Compl. at 10-25. DHR forwarded plaintiff's complaint to the Equal Employment
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Opportunity Commission ("EEOC") for dual filing purposes. Id. at 7. However, on July 19,
2017, plaintiff withdrew his DHR complaint. Id. at 2-27.
On September 26, 2017, the EEOC issued to Rowe a Dismissal and Notice of
Rights. Compl. at 148. Plaintiff remains employed with NYSTF as a Tax Technician I. See,
e.g., id. at 28.
III. LEGAL STANDARDS
A. Motion to Dismiss
"To survive a Rule 12(b)(6) motion to dismiss, the '[f]actual allegations must be
enough to raise a right to relief above the speculative level.'" Ginsburg v. City of Ithaca, 839
F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "Although a complaint need only contain 'a short and plain statement of the claim
showing that the pleader is entitled to relief' (FED. R. CIV. P. 8(A)(2)), more than mere
conclusions are required." Id. "Indeed, '[w]hile legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.'" Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)). "Dismissal is appropriate only where plaintiff has failed to provide
some basis for the allegations that support the elements of his claims." Id.; see also
Twombly, 550 U.S. at 570 (requiring "only enough facts to state a claim to relief that is
plausible on its face").
"When ruling on a motion to dismiss, the court must accept as true all of the factual
allegations contained in the complaint and draw all reasonable inferences in the
non-movant's favor." Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 344 (N.D.N.Y. 2014)
(Baxter, M.J.). In making this determination, a court generally confines itself to the "facts
stated on the face of the complaint, . . . documents appended to the complaint or
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incorporated in the complaint by reference, and . . . matters of which judicial notice may be
taken." Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs.,
L.P. v. Entm't Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
B. Pro Se Status
The basic pleading requirements set forth above apply to pro se plaintiffs as well as
plaintiffs represented by counsel, but "a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers." Ahlers v.
Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012) (internal quotation marks omitted) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)). In other words, "[w]here, as here, the complaint
was filed pro se, it must be construed liberally with 'special solicitude' and interpreted to raise
the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)
(quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)).
However, "all normal rules of pleading are not absolutely suspended" when a plaintiff
is proceeding pro se. Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 214 (N.D.N.Y.
2008) (McAvoy, J.) (internal quotation marks and footnote omitted). Even a pro se plaintiff
must plead sufficient factual allegations to suggest an entitlement to relief. See id. Simply
put, Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Iqbal, 556 U.S. at 678 (citations omitted).
IV. DISCUSSION
Liberally construed, Rowe's complaint attempts to assert claims for race discrimination
and retaliation covering a period from "1993 - present." According to plaintiff, he has been
passed over for promotion "numerous times for no good reason." Compl. at 32. Plaintiff has
since "discovered" that "minorities are underrepresented" at NYSTF, that minority employees
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"face roadblocks to promotion not created for non-minority co-workers," that they "experience
[a] lack of training and opportunity," and that, in "some cases, families get promoted" while
"minorities don't." Compl. at 14, 32.
A. Timeliness of Suit
As an initial matter, NYSTF argues Rowe's entire complaint must be dismissed
because he failed to file it within 90 days after the EEOC issued the right-to-sue letter on
September 26, 2017.
"To maintain a timely Title VII claim, a plaintiff must: (1) file a timely charge with the
EEOC, (2) receive an EEOC right-to-sue letter, and (3) file an action within 90 days of receipt
of that letter." Boza–Meade v. Rochester Housing Auth., 170 F. Supp. 3d 536, 549
(W.D.N.Y. 2016) (citation and internal quotation marks omitted).
"The 90-day period is strictly enforced and cannot be extended by even one
day." Hughes v. Elmira Coll., 584 F. Supp. 2d 588, 589 (W .D.N.Y. 2008). Importantly,
however, the law presumes "that a mailed document is received three days after its
mailing." Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir.
2011).
Rowe filed this action on December 28, 2017, 93 days after the date on which the
EEOC issued plaintiff a right-to-sue notice. But plaintiff is not presumed to have received
that notice until three days later, on September 29, 2017, which means his December 28,
2017 lawsuit falls within the 90-day period.4 Accordingly, plaintiff's filing is timely.

4

Indeed, plaintiff's opposition submission indicates he actually received the right-to-sue letter even
later than that: September 30, 2017. Pl.'s Opp'n at 6.
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B. The 300-Day Limitation
Next, NYSTF contends that any of Rowe's Title VII claims based on acts alleged to
have occurred on or before July 15, 2016 are time-barred by Title VII's 300-day requirement.
"Title VII requires that individuals aggrieved by acts of discrimination file a charge with
the [U.S. Equal Employment Opportunity Commission] within 180 or, in states like New York
that have local administrative mechanisms for pursuing discrimination claims, 300 days 'after
the alleged unlawful employment practice occurred.'" Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 78-79 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-5(e)(1)); see also Jiles v.
Rochester Genesee Regional Transp. Auth., 217 F. Supp. 3d 688, 690 (W .D.N.Y. 2016)
("Because New York is a so-called dual-filing or deferral state, a plaintiff must file a charge
under Title VII within 300 days of the occurrence of a discriminatory act.").
As the Supreme Court has explained, the word "practice" in the Title VII employment
discrimination context refers to "a discrete act or single 'occurrence,'" meaning that "a
discrete retaliatory or discriminatory act 'occurred' on the day that it 'happened.'" Vega, 801
F.3d at 79 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-11
(2002)). Consequently, "[e]ach discrete discriminatory act starts a new clock for filing
charges alleging that act." Morgan, 536 U.S. at 113.
Rowe filed his discrimination complaint with the DHR on May 11, 2017, making July
15, 2016 the relevant 300-day time period for purposes of Title VII. Compl. at 10.
Accordingly, plaintiff's allegations concerning (1) the April 1996 bathroom incident with Smith
and Hoke; (2) the December 1996 incident with Defreest; (3) the July 2003 incident with
Powers and the ensuing dispute with unnamed management personnel that ultimately
terminated in plaintiff's favor; and (4) the 2005 and 2006 job rejections are untim ely.
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Importantly, these time-barred incidents are not saved by Title VII's "continuing
violation exception." Under this exception, "if a plaintiff files a timely EEOC charge 'as to any
incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of
acts of discrimination under that policy will be timely even if they would be untimely standing
alone.'" Edner v. NYCTA-MTA, 134 F. Supp. 3d 657, 663 (E.D.N.Y. 2015) (quoting Chin v.
Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir. 2012)).
Generally speaking, "[t]he continuing violation exception applies to cases involving
specific discriminatory policies or mechanisms such as discriminatory seniority lists, or
discriminatory employment tests." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)
(internal citations omitted), overruled on other grounds by Greathouse v. JHS Sec. Inc., 784
F.3d 105 (2d Cir. 2015).
However, this doctrine is inapplicable to "discrete acts" of discrimination, even if they
are "related to acts alleged in timely filed charges." Edner, 134 F. Supp. 3d at 664 (citation
omitted); see also Cabrera v. NYC, 436 F. Supp. 2d 635, 642 (S.D.N.Y. 2006) ("The Second
Circuit has repeatedly ruled that 'multiple incidents of discrimination, even similar ones, that
are not the result of a discriminatory policy or mechanism do not amount to a continuing
violation.'" (citation omitted)).
Rowe contends that the events in his complaint, considered in the aggregate, tend to
indicate that "minorities are underrepresented" at NYSTF that minority employees "face
roadblocks to promotion not created for non-minority co-workers," that they "experience [a]
lack of training and opportunity," and that, in "some cases, families get promoted" while
"minorities don't." Compl. at 14, 32.

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However, the otherwise-untimely incidents alleged in Rowe's complaint are clearly a
series of discrete acts. Pietri v. N.Y.S. Office of Court Admin., 936 F. Supp. 2d 120, 134
(E.D.N.Y. 2013) ("Discrete acts of discrimination include termination, failure to promote,
denial of transfer, or refusal to hire."). Plaintiff's history of disputes with several different
co-workers at several different times, his disciplinary battle arising from the incident with
Powers, and his rejections from certain career advancement opportunities in 2005 and 2006
do not plausibly form part of a "continuing violation" for purposes of Title VII.
1. Disparate Treatment
This leaves for consideration Rowe's allegations that NYSTF failed to promote him to
a number of different positions between June 2, 2016 and May 10, 2017. See Compl.
64-121.
At the pleadings stage, Title VII "requires a plaintiff asserting a discrimination claim to
allege two elements: (1) the employer discriminated against him (2) because of his race,
color, religion, sex, or national origin." Vega, 801 F.3d at 85.
"As to the first element, an employer discriminates against a plaintiff by taking an
adverse employment action against him." Vega, 801 F.3d at 85. "A plaintiff sustains an
adverse employment action if he or she endures a materially adverse change in the terms
and conditions of employment." Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000) (internal quotation marks omitted).
"An adverse employment action is one which is more disruptive than a mere
inconvenience or an alteration of job responsibilities." Terry v. Ashcroft, 336 F.3d 128, 138
(2d Cir. 2003) (internal quotation marks omitted). "Examples of materially adverse changes
including termination of employment, a demotion evidence by a decrease in wage or salary,
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a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices unique to a particular situation." Vega, 801 F.3d at 85.
"As to the second element, an action is 'because of' a plaintiff's race, color, religion,
sex, or national origin where it was a 'substantial' or 'motivating' factor contributing to the
employer's decision to take the action." Vega, 801 F.3d at 85 (citation omitted). In other
words, "a plaintiff in a Title VII case need not allege 'but-for' causation." Id.
"At the pleadings stage, then, a plaintiff must allege that the employer took adverse
action against her at least in part for a discriminatory reason, and she may do so by alleging
facts that directly show discrimination or facts that indirectly show discrimination by giving
rise to a plausible inference of discrimination." Vega, 801 F.3d at 87 (citing Littlejohn v. City
of N.Y., 795 F.3d 297, 310 (2d Cir. 2015)).
Rowe has sufficiently alleged one or more adverse employment actions for purposes
of sustaining a Title VII discrimination claim. See, e.g., Gutierrez v. City of N.Y., 756 F.
Supp. 2d 491, 502 (S.D.N.Y. 2010) (analyzing Title VII claim based on a "failure to
promote"). However, neither plaintiff's form complaint nor his 144 pages of attached exhibits
contain even the slightest indication that any of these rejections occurred under
circumstances giving rise to a minimal inference of discriminatory intent.
At best, Rowe's attached exhibits indicate that he was denied promotion to several
positions because other candidates were selected. In so doing, he does not plausibly allege
that similarly situated applicants outside his protected class were treated more favorably
during this process in a manner that is even minimally likely to be attributable to racially
discriminatory motives. On the contrary, plaintiff repeatedly indicates it is nepotism, not

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racism, that seems to motivate the selection of these applicants. 5 Moultrie v. Carver Found.,
669 F. App'x 25, 26 (2d Cir. 2016) (summary order) ("Due to the absence of any specific
allegations in [plaintiff's] complaint giving rise to an inference of [discrimination], the
complaint must be dismissed for failure to state a claim upon which relief can be
granted."). Accordingly, plaintiff's Title VII discrimination claims must be dismissed.
2. Retaliation
Rowe also contends that his failed bids for promotion are attributable to retaliatory
animus stemming from earlier workplace disputes at NYSTF.
"[F]or a retaliation claim to survive a . . . motion to dismiss, the plaintiff must plausibly
allege that: (1) defendants discriminated—or took an adverse employment action—against
him; (2) 'because' he has opposed any unlawful employment practice." Vega, 801 F.3d at
90.
In the context of a retaliation claim, "an adverse employment action is any action that
'could well dissuade a reasonable worker from making or supporting a charge of
discrimination." Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006).
"This definition covers a broader range of conduct than does the adverse-action
standard for claims of discrimination. . . '[T]he antiretaliation provision, unlike the substantive
[discrimination] provision, is not limited to discriminatory actions that affect the terms and
conditions of employment.'" Vega, 801 F.3d at 90 (quoting White, 548 U.S. at 64).

5
In his opposition memorandum, plaintiff does state that a "white, much younger female coworker
accepted an offer." But as defendant points out, plaintiff has not identified the position she accepted, whether
he applied for the same position, if so, whether he was qualified for that position, or even whether or not her
qualifications were the same or similar.

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"As for causation, a plaintiff must plausibly plead a connection between the act and
his engagement in protected activity." Vega, 801 F.3d at 90. "A retaliatory purpose can be
shown indirectly by timing: protected activity followed closely in time by adverse employment
action." Id. "Unlike Title VII discrimination claims, however, for an adverse retaliatory action
to be 'because' a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation
was a 'but-for' cause of the employer's adverse action." Id.
This claim fares no better. To be sure, "[c]ourts in the Second Circuit have taken a
'generous' view of retaliatory acts at the motion to dismiss stage." Ingrassia v. Health &
Hosp. Corp., 130 F. Supp. 3d 709, 723 (E.D.N.Y. 2015). But the only protected activity Rowe
has identified in his filings is his decision to report the incident with Powers in July of
2003. Plaintiff asserts that this led to a subsequent attempt by unidentified members of
management to bring him up on "false charges," but that debacle ultimately resulted in an
administrative law judge rejecting those charges, awarding him back pay, and relocating him
to a different management unit with different supervisory personnel.
This alleged retaliatory misconduct appears to have occurred in 2004, well outside the
300-day limitations period. And even putting aside the fact Rowe was actually offered, but
turned down, a subsequent promotion, the fact he was later passed over for certain
advancements much later—in 2016 and 2017—presents far too attenuated a series of
circumstances to establish even a minimal inference of retaliation. Cf. Cifra v. Gen. Elec.
Co., 252 F.3d 205, 217 (2d Cir. 2001) ("The causal connection needed for proof of a
retaliation claim can be established indirectly by showing that the protected activity was
closely followed in time by the adverse action."). According, plaintiff's Title VII retaliation
claims must be dismissed.
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V. CONCLUSION
Even liberally construed in his favor, Rowe's current body of allegations fail to
establish any plausible Title VII claims and therefore his complaint must be
dismissed. However, plaintiff remains free to seek the protection of state and/or federal
anti-discrimination laws if he has suffered from one or more adverse employment actions in
the more recent past that may be attributable, at least in part, to discriminatory
motivations—if appropriate, plaintiff may file a new administrative charge with the DHR and, if
necessary, may even pursue a new federal lawsuit.
In light of the overall tenor of Rowe's factual allegations, as well as the fact that his
roughly 140 pages of supporting exhibits do not substantiate any federal claims, it is
unnecessary to permit plaintiff an opportunity to attempt to amend his complaint to cure the
substantive defects identified here. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993) (explaining that it may be appropriate to deny leave to replead in cases
"[w]here it appears that granting leave to amend is unlikely to be productive").
Therefore, it is
ORDERED that
Defendant's motion to dismiss is GRANTED. The Clerk of the Court is directed to
terminate the pending motions, enter a judgment dismissing the complaint, and close the file.
IT IS SO ORDERED.

Dated: July 10, 2018
Utica, New York.

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