McMahon v. Tompkins County, New York

Filing 11

DECISION and ORDER: that the County's Dkt. No. 5 motion to dismiss is Granted in part and Denied in part; that McMahon's Title VII claims are dismissed; that McMahon's state law claims are Dismissed without prejudice and that the Clerk of the Court is directed to enter judgment accordingly and close the file. Signed by Judge David N. Hurd on 10/4/2017. (hmr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------KAREN MCMAHON,
Plaintiff,
-vTOMPKINS COUNTY, NEW YORK,
Defendant.
----------------------------------APPEARANCES:

5:16-CV-922

OF COUNSEL:

OFFICE OF EDWARD E. KOPKO
Attorneys for Plaintiff
308 N. Tioga Street, 2nd Floor
Ithaca, NY 14850

EDWARD E. KOPKO, ESQ.

OFFICE OF TOMPKINS COUNTY
ATTORNEY
Attorneys for Defendant
125 East Court Street
Tompkins County Office Building
Ithaca, NY 14850

JONATHAN WOOD, ESQ.

DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
Plaintiff Karen McMahon ("McMahon" or "plaintiff"), a corrections officer employed by
the Sheriff's Office, filed this civil rights action against her employer, defendant Tompkins
County, New York (the "County" or "defendant"), alleging violations of her rights under Title
VII of the Civil Rights Act of 1964 ("Title VII") and related state law.
On October 7, 2016, the County moved under Federal Rule of Civil Procedure ("Rule")
12(b)(6) seeking to dismiss McMahon's complaint in its entirety. The motion has been fully
briefed and will be decided on the basis of the submissions without oral argument.

II. BACKGROUND
The following facts are taken from McMahon's complaint and are assumed true for
purposes of resolving the County's motion to dismiss.
On May 15, 2000, the County hired McMahon, a lesbian, as a corrections
officer. Compl. ¶¶ 12-13. In September of 2001, plaintiff "lost a substantial amount of body
weight and as a result her uniform pants did not properly fit her." Id. ¶ 15. Plaintiff's
supervisor, Chief Debra Niemi ("Chief Niemi"), refused to process plaintiff's request for
"alternative uniform pants." Id. ¶ 16.
On August 14, 2002, McMahon underwent surgery. Compl. ¶ 17. While she was in
the hospital, she received a telephone call from Anita Fitzpatrick, the County's Commissioner
of Personnel ("Commissioner Fitzpatrick"). Id. Commissioner Fitzpatrick told plaintiff that
"she did not have an accrual of disability benefit time and would not be paid by" the
County. Id ¶ 18. According to plaintiff, Jackie Yoder, a Benefits Manager for the County, told
her that she had accrued 10 weeks of disability time. Id. Plaintiff filed a grievance through
her union about this issue. Id ¶ 19.
On October 2, 2002, the County sent McMahon a letter stating that plaintiff "needed to
personally pay her health insurance premium as she was not currently on the
payroll." Compl. ¶ 20.
On November 20, 2002, County Sheriff Peter Meskill ("Sheriff Meskill") presented a
grievance settlement to McMahon. Compl. ¶ 21. At the time, Sheriff Meskill told plaintiff that
"if she wanted to have a good Christmas for her children, she should sign the agreement." Id

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In August of 2003, Chief Niemi "berated and harassed McMahon because [she] did not
volunteer to work additional hours on behalf of another corrections officer, although McMahon
had worked many shifts in excess of her required schedule." Compl. ¶ 22.
On October 31, 2003, Chief Niemi issued a written disciplinary memorandum to
McMahon "falsely alleging that [she] had failed to obey an order." Compl. ¶ 23. According to
plaintiff, Chief Niemi issued a second disciplinary memorandum "falsely alleging that [she]
had improperly interacted with inmates." Id. ¶ 24.
On December 1, 2003, Lieutenant Raymond Bunce ("Lt. Bunce") denied McMahon's
request for time off even though the "minimum staffing requirement was met." Compl. ¶ 25.
Around July 1, 2004, McMahon received another written disciplinary memorandum
"falsely alleging improper professional behavior on June 12, 2004." Compl. ¶ 26.
On March 5, 2005, someone ordered McMahon to "stay away from the housing unit of
an inmate due to the inmate falsely alleging improper conduct against [her]." Compl. ¶ 27.
On March 16, 2005, someone reassigned McMahon to another shift after an inmate
threatened her. Compl. ¶ 28.
On June 14, 2005, the County denied McMahon "use of disability time that she was
entitled [to] and charged 8 hours of vacation time instead." Compl. ¶ 29.
On October 23, 2005, Chief Niemi changed McMahon's "time card by charging
[plaintiff] with the use of [three-and-a-half hours] of personal time that should have been
charged [as] . . . holiday time." Compl. ¶ 30.
On March 2, 2007, a representative from the County's Personnel Office contacted
"First Choice" to set up an Independent Medical Exam ("IME") for McMahon after she was

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"taken out of work by her medical professional." Compl. ¶ 31. According to plaintiff, "other
officers were not subject to an IME as quickly as she had been." Id. ¶ 32.
On April 12, 2007, Lt. Bunce telephoned McMahon to "falsely alleg[e] that [she] had
improperly served legal process upon a third party." Compl. ¶ 33.
On April 30, 2007, someone stated to McMahon that "she was prohibited from serving
legal process on anyone without the consent of the Sheriff." Compl. ¶ 34. When plaintiff
asked Lt. Bunce "for the authority for his verbal reprimand," he stated that "he was the
authority." Id. ¶ 35.
On December 12, 2008, Sheriff Meskill reduced McMahon's pay "by an additional one
quarter hour alleging that she was not at work, when she actually was." Compl. ¶ 36.
Plaintiff filed a grievance about this issue with her union. Id. ¶ 37.
On December 16, 2008, Chief Niemi telephoned McMahon shortly after she had
finished a shift and told her "that she is not to write in the control room log book the comings
and goings of certain specific employees, inclusive of herself." Compl. ¶ 38.
On October 14, 2009, McMahon attended a Labor-Management meeting in her
capacity as the President of the County's Correction Officers Union Local 2062. Compl. ¶ 39.
On October 28, 2009, McMahon received a Counseling Memorandum alleging she
had failed to report for duty on October 25. Compl. ¶ 40.
On November 12, 2009, McMahon filed a grievance with her union because she was
not paid for work she performed on October 25. Compl. ¶ 41.
On December 29, 2009, Chief Niemi and Lt. Bunce "harassed and yelled at" McMahon
about a union member and "his disability." Compl. ¶ 42.

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On September 15, 2010, Chief Niemi yelled at McMahon, alleging that she was
"starting rumors and making statements to a local newspaper about the Sheriff's
Office." Compl. ¶ 43.
On September 30, 2010, Jeff Potter, a fellow corrections officer, "glared at" McMahon
and stated that "someone started rumors about him to members of the Groton Rotary
Club." Compl. ¶ 44. Plaintiff and other corrections officers reside in Groton, New
York. Id. ¶ 45.
On May 2, 2011, Commissioner Fitzpatrick altered McMahon's time card and
"deplete[d]" her "disability fringe time by eight hours" without plaintiff's consent. Compl. ¶ 46.
Plaintiff filed a grievance about this issue with her union. Id. ¶ 47.
On June 14, 2011, McMahon asked Sergeant Matt DeMatteo ("Sgt. DeMatteo"), her
shift supervisor, why she "could not receive a hard copy of the department Policy and
Procedure manual as other officers (male) were being issued them." Compl. ¶ 48. Plaintiff
alleges that Sgt. DeMatteo stated to her that "she was a minority and a female and that was
the way it was." Id.
On June 15, 2011, Lt. Bunce spoke to McMahon about "bothering" Sgt.
DeMatteo. Compl. ¶ 49. At that time, Lt. Bunce stated that plaintiff "wasn't getting the
manual. Period." Id.
On June 16, 2011, Lt. Bunce handed McMahon "an old empty binder and papers
instructing her to put her own manual together." Compl. ¶ 50.
On June 19, 2011, McMahon wrote to Sgt. DeMatteo "asking him to make time so they
could talk." Compl. ¶ 51.

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On June 20, 2011, Lt. Bunce spoke to McMahon in Sgt. DeMatteo's presence "about
an alleged act of insubordination." Compl. ¶ 52.
On June 23, 2011, someone gave McMahon a "written Performance Correction notice
making note of a 'verbal correction.'" Compl. ¶ 53.
On April 15, 2012, Lt. Bunce placed McMahon on light duty after her personal
physician indicated she was capable of performing light duty tasks. Compl. ¶ 54. However,
Lt. Bunce assigned plaintiff "to duties inconsistent with her present physical
injuries." Id. ¶ 55.1 When plaintiff told Lt. Bunce that "she experienced pain while sitting and
typing all day," he stated that "she should type with one hand or one finger and that he did
not care if she was injured." Id ¶ 56.
On April 20, 2012, while McMahon's mother was dying, she asked Lt. Bunce if she
could "remain on her shift working in the control room so that she could continue to work,
attend to her physical therapy, and care for her mother." Compl. ¶¶ 57-58. However, he
denied her request and stated there was no light duty available in the control room. Id.
According to plaintiff, "other correction[s] officers had performed light duty in the control room
and [ ] they still do." Id. ¶ 60.
Around 6:00 or 7:30 that evening, Commissioner Fitzpatrick contacted McMahon to
ask how she "could work a second job while she was on light duty with a shoulder
injury." Compl. ¶ 61.

1

McMahon's complaint begins to refer to Lt. Bunce as "Capt. Bunce." Compare, e.g., Compl. ¶¶ 4950, with, e.g., id. ¶¶ 52, 55-56. For the sake of consistency, this recitation of the facts neglects to adopt the
unexplained change in title.
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On May 13, 2012, McMahon requested bereavement time off after her mother passed
away. Compl. ¶ 62. Lt. Bunce waited to tell plaintiff that her leave had been approved until
8:00 a.m. the morning of her mother's funeral. Id. ¶ 63.
On November 19, 2012, McMahon filed a grievance with her union about certain lost
pay and benefit time. Compl. ¶ 64.
On November 26, 2012, Chief Niemi instructed McMahon that "she had to sign her
name to inmate request forms, not a badge number." Compl. ¶ 65. According to plaintiff, she
"was aware that other officers [ ] only signed their badge numbers to the requests." Id. ¶ 66.
On December 9, 2012, McMahon received a "performance correction alleging that she
had abused her benefit time by taking a personal day in November 2012 knowing that she did
not have personal time accrued." Compl. ¶ 67. Plaintiff alleges that she did have personal
time to use, and claims that Chief Niemi improperly charged her for certain time. Id. ¶ 68.
On February 5, 2013, someone denied McMahon's request to take on overtime work
that another corrections officer "was being forced to accept." Compl. ¶ 69. Plaintiff alleges
that "many officers are given the opportunity to accept overtime after an officer has been
forced." Id. ¶ 70.
On April 8, 2013, McMahon attempted to return defective footwear, but "was told that
there was no control over a company's warranty or return policy." Compl. ¶ 71. According to
plaintiff, "two other officers were allowed to return their footwear manufactured by the same
company." Id. ¶ 72.
In May of 2013, Lt. Bunce ordered McMahon "to not post anything on the Union board
in the briefing room." Compl. ¶ 73. Plaintiff told Lt. Bunce that Sergeant Pat Masters ("Sgt.

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Masters") "was performing actions that were improper, illegal, abusing his title as a sergeant
and [Lt.] Bunce had no say in the discussion of matters within the union body." Id. ¶ 74.
In June of 2013, Lt. Bunce told McMahon that she incorrectly wrote up an incident
report. Compl. ¶ 75. Plaintiff allege that "many officers' reports are wrong without being
corrected or addressed. Id. ¶ 76.
On October 2, 2013, Sgt. Masters "allowed McMahon to be harassed, berated and
belittled by professional visitors in the jail while attempting to perform her job
duties." Compl. ¶ 77.
On January 30, 2014, McMahon's union demanded arbitration on her behalf against
the County based on a light duty grievance she had filed earlier that month. Compl. ¶ 78.
According to plaintiff, she "was compelled to return to work for an off duty injury although
there is no language in the [collective bargaining agreement] about light duty." Id. Plaintiff
alleges that Lt. Bunce informed her that he "assigns her duties other than control room for
light duty because she is capable of performing other administrative tasks, more so than
other officers." Id ¶ 79.
In February of 2014, McMahon asked Lt. Bunce "for a reasonable accommodation of
specific days off for health reasons." Compl. ¶ 80. He refused. Id. ¶ 81.
On April 15, 2014, McMahon and Lt. Bunce "had a discussion" about his management
of the Corrections Division. Compl. ¶ 82. At the time, plaintiff complained he had been
violating her rights. Id. Later that evening, plaintiff learned that a previously approved leave
request had been denied. Id. ¶ 83. According to plaintiff, "many other officers are allowed to
leave shift early in the same manner as she had requested." Id ¶ 84.

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On May 13, 2014, McMahon sought medical attention for an injury she sustained to
her right knee. Compl. ¶ 85.
On May 30, 2014, McMahon's union demanded arbitration on her behalf against the
County for a grievance she had filed on April 23. Compl. ¶ 86.
On July 30, 2014, McMahon's union demanded arbitration on her behalf against the
County for a grievance she had filed on July 3. Compl. ¶ 87.
McMahon's alleges that Captain Brett George ("Captain George"), another member of
the County Sheriff's Office but employed by a different division, is her neighbor. Compl. ¶ 88.
Plaintiff claims Captain George "did provide information to other individuals in the
neighborhood' about plaintiff's "disability." Id. As a result, individuals in the neighborhood
harassed plaintiff "almost daily." Id. Plaintiff also alleges that Captain George "allowed
videotaping of [plaintiff] from his property." Id.
On September 9, 2014, Sheriff Kenneth Lansing ("Sheriff Lansing") "presented
McMahon with a document stating that if she resigned her position . . . she would not be
prosecuted for the felony by police officers." Compl. ¶ 90. Plaintiff refused. Id. ¶ 91.
On September 16, 2014, McMahon received a notice of discipline alleging that she
had "falsely claimed to be totally disabled and incapable [of] performing her duties as a
corrections officer." Compl. ¶ 89. This notice further alleged that plaintiff had "falsely
represented her medical condition to the workers compensation insurance provider" and to
other supervisory officials at the County Sheriff's Office. Id. The same day, police officers
with the County Sheriff's Office arrested McMahon and charged her with filing a fraudulent
insurance claim, a felony offense. Id. ¶ 92.

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On October 27, 2014, Lt. Bunce wrote a letter to the New York State Division of
Criminal Justice Services ("DCJS") stating that McMahon was arrested." Compl. ¶ 94.
According to plaintiff, she had been seeking a "waiver for the NYS Security Guard training
program" at the time. Id.
At some point after McMahon's arrest, County Assistant District Attorney Eliza
Filipowski ("ADA Filipowski") presented charges to the grand jury based on the conduct for
which plaintiff had been arrested. Compl. ¶ 95. However, the grand jury refused to indict
plaintiff. Id.
Thereafter, an arbitrator rejected each of the charges initiated by the County Sheriff's
Officer and ordered that McMahon be reinstated to employment and made whole for all
monetary losses." Compl. ¶ 96. Since being reinstated, plaintiff "has been subjected to
comments making light of her arrest, ridiculed and was made aware of derogatory comments
made regarding her character." Id. ¶ 97.
McMahon alleges that she is aware of other officers being found guilty of falsifying
time sheets and not being charged with a crime. Comp. ¶ 98. Plaintiff further alleges that
she is aware of other officers performing second jobs while out on disability who were not
investigated. Id. ¶ 99. Plaintiff alleges she "has been given many additional assignments
since her return without being given time and space to complete the duties." Id ¶ 101. As a
result, she "fears retaliation." Id.
On April 29, 2016, the Equal Opportunity Employment Commission ("EEOC") issued to
McMahon a Notice of Right to Sue letter. Compl. ¶ 5. Plaintiff filed this action on July 26,
2016.

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III. LEGAL STANDARD
"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
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)).

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IV. DISCUSSION
A. Title VII Discrimination
McMahon asserts a Title VII claim for discrimination. According to the County, this
claim must be dismissed because Title VII does not protect against sexual orientation
discrimination and, even assuming otherwise, her claim is untimely. Plaintiff's brief in
opposition does not attempt to engage with these arguments but rather asserts quite simply
that her complaint "contains all of the necessary allegations to overcome a motion to
dismiss."
It does not. 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 v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015).
"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, 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.
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"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)).
After reviewing the allegations in McMahon's complaint and considering her
seven-page opposition memorandum, plaintiff's Title VII discrimination claim fails to pass
muster even under this generous standard.
First, as the County points out, Title VII "provides no remedy for discrimination based
upon sexual orientation." Harder v. New York, 117 F. Supp. 3d 157, 165 (N.D.N.Y. 2015)
(citation omitted). Accordingly, to the extent that McMahon's decision to specifically plead her
sexual orientation suggests that she believes it is relevant to this analysis, Compl. ¶ 13, it
cannot be considered a protected class for purposes of determining whether or not she has
stated a Title VII claim.
Even if Title VII did in fact provide such protection, McMahon's pleading appears to
offer up her sexual orientation gratuitously, since none of her allegations attempt to draw any
causal connection between the alleged misconduct undertaken by the various actors in her

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complaint and her sexual orientation.2 Nor does she allege that other individuals outside her
protected class were treated more favorably.
In fact, the vast majority of the factual allegations in McMahon's complaint, which
details events over a fourteen-year period going back to the beginning of her employment
with the County in May of 2000, are barred by Title VII's 300-day statute of limitations.
"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, 801 F.3d at 78-79 (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 "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.

2

The result would be the same if McMahon's complaint is construed as asserting a claim based on a
failure to conform to gender stereotypes, since nowhere in her pleading does she make any sort of allegation
to that effect. See, e.g., Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 199-200 (2d Cir. 2017)
(discussing Supreme Court's recognition of that theory of sex discrimination as viable under Title VII).
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McMahon claims that she filed a charge of discrimination with the EEOC on July 9,
2015, making September 12, 2014, the relevant 300-day time period for purposes of Title
VII. Accordingly, plaintiff's allegations of discriminatory acts occurring prior to that date are
time barred and must be dismissed.
In her opposition, McMahon seeks to have the incidents from that period considered
timely under 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).
Accordingly, 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)).

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"Such discrete acts include termination, disparate disciplining, and negative
performance evaluations." Edner, 134 F. Supp. 3d at 664 (collecting cases); see also 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.").
McMahon seeks to cast the allegations in her complaint as part of a pattern of
discrimination, but virtually all of the conduct that she describes is precisely the sort of
discrete instances of misconduct to which the continuing violation does not apply.
Notably, "[t]he continuing violation[ ] doctrine is disfavored and courts are hesitant to
apply it absent a showing of compelling circumstances." Boza–Meade v. Rochester Hous.
Auth., 170 F. Supp. 3d 535, 545 (W.D.N.Y. 2016) (citation omitted). Because the litany of
incidents described in McMahon's complaint do not plausibly form part of a "continuing
violation" for purposes of Title VII, they are time-barred. See id. ("A continuing violation may
not be premised on discrete incidents of discrimination not related to discriminatory policies or
mechanisms." (citation omitted)).
The remaining allegations in McMahon's complaint fail to state a plausible
claim. According to her timely allegations, the County served plaintiff with a notice of
discipline alleging that she had falsely represented her medical condition to her employer and
to other entities. See Compl. ¶ 89. In addition to the notice of discipline, plaintiff was
arrested on a felony charge for similar alleged misconduct. Id. ¶ 92. Thereafter, Lt. Bunce
wrote to DJCS stating plaintiff had been arrested. Id. ¶ 94. And in connection with plaintiff's
arrest, ADA Filipowksi presented those charges to a grand jury, which refused to indict
her. Id. ¶ 95. Plaintiff alleges that she returned to work after an arbitrator also rejected the

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County's charges of misconduct. Id. ¶ 96. And upon her return, she has been "made aware
of derogatory comments made regarding her character." Id. ¶ 97.
First, any insensitive comments made by one or more of unspecified co-workers are
insufficient bases on which to sustain a Title VII disparate treatment claim. See, e.g., Davis
v. NYS Dep't of Corr. Attica Corr. Facility P.O. Box 149 Attica, N.Y. 14011, 46 F. Supp. 3d
226, 236 (W.D.N.Y. 2014) ("Whispering, gossiping, and making negative comments about an
employee [ ] do not rise to the level of an adverse employment action . . . .").
Second, McMahon's description of her arrest and subsequent return to work, while no
doubt distressing, fails to include any explanation of how this series of events resulted in a
materially adverse change in the terms and conditions of her employment. Cf. Jaeger v. N.
Babylon Union Free Sch. Dist., 191 F. Supp. 3d 215, 227 (E.D.N.Y. 2016) ("Courts in this
Circuit have held that investigations alone are . . . not adverse employment actions." (citation
omitted)).
However, drawing all inferences in McMahon's favor, it can be gleaned from the
complaint that plaintiff may have been temporarily placed on some form of unpaid leave or
probation. See Compl. ¶ 96 (alleging the arbitrator "ordered that McMahon be reinstated to
employment and made whole for all monetary losses").
That kind of change in working conditions can be sufficient for purposes of Title
VII. Cf. Johnson v. Long Island Univ., 58 F. Supp. 3d 211, 223 (E.D.N.Y. 2014) (holding that
an employer's reprimand is not an adverse employment action in the absence of other
negative results such as a decrease in pay or being placed on probation). But even this
allegation suffers from an overarching failure by McMahon to allege any sort of causal

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connection between her protected status as a female and any of the allegedly adverse
employment actions that occurred.
"An 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)).
McMahon alleges that she is "aware of" other corrections officers who falsified time
sheets but were not charged with a crime. Compl. ¶¶ 98, 100. She also alleges that other
officers worked other jobs on disability without being investigated. Id. ¶ 99. And since she
has been back at work, she has been "given many additional assignments." Id. ¶ 101.
But nothing in McMahon's complaint plausibly suggests that her gender was a
"substantial" or "motivating" factor behind any of this unfairness. See Vega, 801 F.3d at 85;
see also 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.").
On the contrary, the tenor of McMahon's allegations seem to be little more than an
invitation to second-guess her employer's decision-making. Simply put, this Court does not
sit as a kind of "super-personnel department." See, e.g., Damon v. Fleming Supermarkets,
196 F.3d 1354, 1361 (11th Cir. 1999) (noting that court is not concerned with whether

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employment decision was "prudent or fair," but only with whether it was motivated by unlawful
discriminatory animus). Accordingly, plaintiff's Title VII claim must be dismissed.
B. Hostile Work Environment
Out of an abundance of caution, the allegations in McMahon's complaint have also
been considered to determine whether they might state a plausible claim for a hostile work
environment.
"A hostile work environment claim 'is a wholly separate cause of action designed to
address other types of work place behavior, like constant jokes and ridicule or physical
intimidation.'" Hughes v. Xerox Corp., 37 F. Supp. 3d 629, 648 (W.D.N.Y. 2014) (citation
omitted).
"To establish a hostile work environment under Title VII, . . . a plaintiff must show that
'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim's employment and create
an abusive working environment.'" Littlejohn, 795 F.3d at 320-21 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)).
"This standard has both objective and subjective components: the conduct
complained of must be severe or pervasive enough that a reasonable person would find it
hostile or abusive, and the victim must subjectively perceive the work environment to be
abusive." Littlejohn, 795 F.3d at 321 (quoting Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir.
2014)). "The incidents complained of must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive." Id.
"In determining whether a plaintiff suffered a hostile work environment, [a court] must
consider the totality of the circumstances, including 'the frequency of the discriminatory
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conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.'" Littlejohn, 795 F.3d at 321 (quoting Harris, 510 U.S. at 23).
At the outset, it is recognized that "a hostile work environment claim is treated as a
continuing violation and treated as timely if one act contributing to the claim occurred within
the 300-day period . . . ." Baroor v. N.Y. City Dep't of Educ., 362 F. App'x 157, 159 (2d Cir.
2010) (summary order). Accordingly, the otherwise-untimely allegations set forth in plaintiff's
pleading will be considered in evaluating the plausibility of a hostile work environment claim.3
Yet even considering McMahon's time-barred allegations, any hostile work
environment claim must fail. Merely pleading a series of generally unpleasant, undesirable,
or even harmful behavior is insufficient; rather, a plaintiff must plausibly allege that the hostile
work environment at issue was created because of one or more of protected
characteristics. See Robinson v. Harvard Prot. Servs., 495 F. App'x 140, 141 (2d Cir. 2012)
(summary order) (reiterating the causal requirement for hostile work environment claims)
As with the discrimination claim set forth above, McMahon repeatedly details instances
in which she was subjected to increased or unfair scrutiny and marginal or unfavorable
treatment. But there is no evidence that any of this mistreatment was causally related to any
characteristic protected by the anti-discrimination laws. Accordingly, any hostile work
environment claim must be dismissed. See Ortiz v. Metro. Transp. Auth., 615 F. App'x 702,
703 (2d Cir. 2015) (summary order) (affirming grant of summary judgment on hostile work

3

At the same time, however, courts have cautioned that "[h]ostile work environment is not a vehicle
for resurrecting time-barred claims of discrimination." Hughes, 37 F. Supp. 3d at 648.
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environment claim where "most of the complained-of conduct bears no apparent connection
to [plaintiff's] sex, race, or national origin").
C. Retaliation
Finally, it is noted that McMahon invokes the word "retaliation" in her pleading,
Compl. ¶ 101, and purports to bring a Title VII retaliation claim as her Second Cause of
Action, id. ¶ 106. This claim must also be dismissed.
"[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 Title VII 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 under Title VII: '[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).
"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

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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.
"Courts 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). However, as the Supreme Court has cautioned, "[c]ontext matters." White,
548 U.S. at 69.
McMahon's pleading fails to satisfy even this minimal standard. The vast majority of
plaintiff's complaint details what appears to be little more than back-and-forth conduct over a
fourteen-year period between the County, plaintiff, her union, some supervisors, and some
other corrections officers who appear to be co-workers. In instances where plaintiff felt
mistreated, she regularly grieved the situation, which often appears to resulted in some form
of favorable resolution to her grievance.
More importantly for present purposes, McMahon's pleading does not provide any
factual allegation, or combination of factual allegations, that plausibly gives rise to even an
indirect inference that one or more of the actions plaintiff identifies as attributable to her
employer, the County—assuming in the first place that these actions are sufficiently "adverse"
in light of the lower standard applied in the retaliation context—were in any way somehow
causally related to the protected conduct in which she engaged, informal or otherwise, over
this fourteen-year period. Accordingly, this claim will also be dismissed.

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IV. CONCLUSION
McMahon has failed to establish any plausible federal claims. Accordingly,
supplemental jurisdiction over plaintiff's state law claims will be declined. See 28
U.S.C. § 1367(c)(3).
Therefore, it is
ORDERED that
1. The County's motion to dismiss is GRANTED in part and DENIED in part;
2. McMahon's Title VII claims are DISMISSED; and
3. McMahon's state law claims are DISMISSED without prejudice.
The Clerk of the Court is directed to enter judgment accordingly and close the file.
IT IS SO ORDERED.

Dated: October 4, 2017
Utica, New York.

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