Gray v. Onondaga-Cortland-Madison BOCES
SUMMARY ORDER - That defendant's 9 Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART as follows: GRANTED as it relates to plaintiff's claim of sexual harassment. DENIED in all other respects. Signed by Senior Judge Gary L. Sharpe on 4/13/2018. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Plaintiff McKenzie Gray, a female teaching assistant, brings this
action against her former employer, defendant Onondaga-CortlandMadison BOCES (OCM BOCES), alleging that she was subjected to
sexual harassment, disability discrimination, and retaliation in violation of
the Americans with Disabilities Act,1 Title VII of the Civil Rights Act of
1964,2 and the Civil Rights Act of 19913. (See generally Compl., Dkt. No.
1; Dkt. No. 18 at 14.)
In its pending motion for judgment on the pleadings, (Dkt. No. 9),
See 42 U.S.C. §§ 12101-12213.
See 42 U.S.C. §§ 2000e-2000e-17.
See 42 U.S.C. § 1981-2000h-6.
OCM BOCES’ contends that the complaint should be dismissed, in part
because it merely sets forth conclusory allegations that are insufficient to
state a claim for sexual harassment. (Dkt. No. 9, Attach. 1 at 6.) In
response, after citing to the improper conceivability standard4 no less than
three times, (Dkt. No. 18 at 4-5), Gray argues that her claim of sexual
harassment is sufficiently plead when analyzed under the proper
plausibility standard, (id. at 17-20).
Fed. R. Civ. P. 8(a)(2) requires that a pleading contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” It
is well-settled that “a plaintiff’s obligation to provide the grounds of his [or
her] entitle[ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do[.]” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks
and citation omitted). Rule 8(a)(2) “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). And a complaint must do more than “tender ‘naked
Under this since-retired standard, “a wholly conclusory statement of claim would survive a
motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish
some set of [undisclosed] facts to support recovery.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561
(2007) (internal quotation marks omitted). However, the conceivability standard “is best forgotten as an
incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately,
it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting
Twombly, 550 U.S. at 557). It “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.
(quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556).
Pursuant to EEOC regulations5
Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature constitute
sexual harassment when (1) submission to such conduct is made
either explicitly or implicitly a term or condition of an individual’s
employment, (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile, or offensive working environment.
29 C.F.R. § 1604.11. In determining whether conduct constitutes sexual
harassment in violation of Title VII, a court may look to “the nature of the
sexual advances and the context in which the alleged incidents occurred.”
Id. The impermissible character of the underlying conduct must be stated
Although not controlling, these guidelines “constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944) (Jackson, J.).
in order to permit an inference that it rises to the level of sexual
harassment. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 80-81 (1998) (stressing that Title VII is not a “general civility code”
and only prohibits harassment that involves certain statutorily-proscribed
forms of discrimination); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986) (“For sexual harassment to be actionable, it must be sufficiently
severe or pervasive to alter the conditions of [the victim’s] employment and
create an abusive working environment.”) (internal quotation marks and
citation omitted); Gibson v. Jacob K. Javits Convention Ctr. of N.Y., No. 95
CIV. 9728, 1998 WL 132796, at *8-9 (S.D.N.Y. Mar. 23, 1998) (finding that
blanket assertions of sexual harassment were insufficient to survive a
motion to dismiss).
Here, the complaint merely concludes that Gray “was . . . sexually
harassed” by students in her classroom, (Compl. ¶¶ 19, 24), and vaguely
describes the students’ conduct as “unceasing, pervasive[,] and
outrageous in nature,” (id. ¶ 20), but omits any factual allegations regarding
the students’ conduct that allegedly constituted sexual harassment, (see
generally Compl.). And the court cannot reasonably infer whether such
unidentified conduct constituted sexual harassment merely from allegations
relating to Gray’s resulting injury, (id. ¶ 27), or OCM BOCES’ response
upon learning of such conduct, (id. ¶¶ 12, 26, 28-29).6 Moreover,
“[d]efendants cannot be required to respond, and be held to those
responses in future litigation, where the factual . . . allegations remain so
unclear.” Castiglione v. Papa, No. 1:09–CV–0967, 2010 WL 2044688, at
*6 (N.D.N.Y. May 24, 2010), aff’d, 423 F. App’x 10 (2d Cir. 2011); (Dkt. No.
8 at 2 ¶ 6.) In sum, Gray cannot affix a conclusory label of “sexual
harassment” on unspecified conduct without alleging facts that, if accepted
as true, allow the court to draw a reasonable inference that OCM BOCES
is liable. See Iqbal,556 U.S. at 678; Twombly, 550 U.S. at 556-57. As
such, Gray’s sexual harassment claim is dismissed.
The court has carefully considered OCM BOCES’ remaining
arguments––related to sovereign immunity, and whether Gray adequately
alleged a qualifying disability under the ADA or a causal relationship to
support her retaliation claim––and considers them to be without merit,
given the reasonable inferences that can be drawn from the complaint at
A court may consider a plaintiff’s administrative agency filings, even if they are not attached to
the complaint, when those filings are incorporated by reference. See Littlejohn v. City of New York, 795
F.3d 297, 305 n.3 (2d Cir. 2015). Although the complaint references charges filed with the EEOC and
New York State Division of Human Rights, (Compl. ¶¶ 4, 10, 23), Gray has not provided the court with
any filings which may have adequately stated the conduct allegedly constituting sexual harassment.
Instead, Gray has only attached to her complaint the one-page “right to sue letter” issued by the EEOC,
which contains no factual allegations regarding sexual harassment. (Dkt. No. 1, Attach. 1.)
this stage. Accordingly, it is hereby
ORDERED that defendant’s motion for judgment on the pleadings,
(Dkt. No. 9), is GRANTED IN PART and DENIED IN PART as follows:
GRANTED as it relates to plaintiff’s claim of sexual
DENIED in all other respects; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
IT IS SO ORDERED.
April 13, 2018
Albany, New York
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