Serrano v. New York State et al
MEMORANDUM-DECISION AND ORDER granting in part and denying in part 11 Motion to Dismiss: The Court hereby ORDERS that Defendants' motion to dismiss the amended complaint is GRANTED in part and DENIED in part in accordance with this Memorandum -Decision and Order; and the Court further ORDERS that Plaintiff's request for leave to re-plead is DENIED; and the Court further ORDERS that Plaintiff shall have THIRTY (30) DAYS from the filing date of thisMemorandum-Decision and Order to effe ct service on Defendant Gerould and file proof of such service with the Court; and the Court further ORDERS that, if Plaintiff fails to effect service on Defendant Gerould within THIRTY(30) DAYS of the filing date of this Memorandum-Decision and Order, Defendant Gerould will be dismissed from this action, without further order of the Court. Signed by U.S. District Judge Mae A. D'Agostino on 12/20/13. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NEW YORK STATE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION;
COMMISSIONER JOE MARTENS; MAJOR STEVEN
GEROULD; PETER FANELLI, DIRECTOR, DIVISION
OF LAW ENFORCEMENT; ERIC TUPAJ, LIEUTENANT,
DIVISION OF LAW ENFORCEMENT,
OFFICE OF LOWELL R. SIEGEL
23 Indian Ladder Drive
Altamont, New York 12009
Attorneys for Plaintiff
LOWELL R. SIEGEL, ESQ.
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorneys for Defendants
JAMES SEAMAN, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff, Alelie Serano, commenced this suit against her employer, New York State
Department Environmental Conservation ("DEC"), and various DEC employees on October 24,
2012. Plaintiff was terminated from her position on January 25, 2013 and she filed an amended
complaint on February 13, 2013. Pending before this Court is Defendants' motion to dismiss
Plaintiff's amended complaint.
Plaintiff was employed at the DEC as a dispatcher from October 2006 until January 2013.
See Dkt. No. 9 at 4. During this time, Plaintiff was the only dispatcher at the DEC of Puerto
Rican/Hispanic descent. See id. at 5. One of the main reasons Plaintiff was hired was because of
her fluency in Spanish. See id. Plaintiff worked in the Ray Brook office from October 2006 until
February 2010, when she was transferred to Albany. See id. at 4. In 2007, Defendant Tupaj
replaced Lieutenant Stabak as Plaintiff's main supervisor. See id. at 5. Defendant Gerould
supervised the Central Dispatch Unit in the Central Office in Albany from May 2007 to April
2011. See Dkt. No. 11-12 at 1. He has had no supervisory control over the Central Dispatch Unit
since his relocation in April 2011. See id.
On March 4, 2008, Plaintiff filed a charge of discrimination with the Affirmative Action
Office of the DEC. See Dkt. No. 11-5 at 7. The Affirmative Action Office issued a finding of
discriminatory behavior and recommended remedial action to ensure an end of such behavior.
See id. at 9. On August 26, 2008, Plaintiff filed a complaint with the New York State Division of
Human Rights ("DHR") alleging retaliation for filing her previous Affirmative Action complaint.
See id. at 1. On October 8, 2008, Plaintiff filed another charge with the DHR alleging
discrimination and harassment. See Dkt. No. 11-6 at 1. On March 23, 2009, the DHR issued a
statement that "there is probable cause that Complainant may have been subjected to
discriminatory treatment, including retaliation, and said treatment may be ongoing." See Dkt. No.
11-7 at 6. On March 30, 2010, Plaintiff filed another charge of discrimination with the DHR. See
Dkt. No. 11-10 at 1. The DHR determined that this charge showed no probable cause of
discrimination because, inter alia, the "allegations regarding ridiculing behavior from coworkers
were already litigated during the December 2009 Division hearing." See Dkt. No. 11-11 at 2.
On or about May 18, 2012, Plaintiff filed a charge of discrimination and retaliation based
on her race/national origin with the Equal Employment Opportunity Commission ("EEOC"). See
Dkt. No. 11-3 at 2. The EEOC determined that it did "not seem that [they] would find a violation
of the law" because "most of [Plaintiff's] allegations are untimely (beyond 300 days) or have
already been investigated by the NYSDHR." See Dkt. No. 11-2 at 2. On July 26, 2012, the
EEOC issued a right to sue letter, allowing Plaintiff ninety days to file a suit against the DEC.
See id. at 3. Plaintiff commenced this action on the ninetieth day, October 24, 2012. See Dkt.
On January 4, 2013, Plaintiff filed another hostile work environment and discrimination
complaint with the Affirmative Action Bureau of the DEC. See Dkt. No. 11-13 at 6. Plaintiff
was then terminated on January 25, 2013, by a letter stating in part, "[t]he reasons for this
decision include your persistent and unfounded complaints that have disrupted the workplace,
conduct that undermined the mission of the unit, insubordination, and time and attendance
concerns." See Dkt. No. 15-3 at 2.
Several alleged instances of workplace conduct are relevant to this case. These instances
include: (A) alleged conduct which has been previously adjudicated by the DHR, (B) undated
allegations of conduct that have not been previously adjudicated, and (C) facts surrounding the
service of Defendant Gerould.
Allegations of conduct adjudicated by the DHR
Plaintiff alleged that a co-worker, Angela Reynolds, complained about Plaintiff speaking
Spanish in the workplace and Sergeant Cranker advised Plaintiff to consider relocating to Puerto
Rico. See Dkt. No. 9 at 5–6. Plaintiff alleged several offensive items had been placed in her
vicinity after filing a discrimination complaint at Ray Brook including: a can with "bullshit"
written on the label, a set of "eyeballs," a Mr. Bill doll, a bull's eye target, and a hangman's noose
placed near Plaintiff's locker. See id. at 6. Defendant Gerould allegedly minimized the
Affirmative Action Office's determination of a hostile work environment by calling the report
"embellished." See id. Similarly, Defendant Tupaj allegedly minimized the counseling
memoranda in relation to the Affirmative Action determination, calling them a "slap on the hand."
See id. Plaintiff claims that Defendants were permitted access to her work e-mail so that her
activities could be closely monitored and that Defendants engaged in "hyper-supervision" of
Plaintiff. See id. at 6–7. Plaintiff was excluded from training given to other dispatchers at Ray
Brook and Defendants allegedly failed to allow Plaintiff to engage in diversity training. See id.
Plaintiff claims that she was required to provide a doctor's note when she missed work, and
overtime was allegedly limited to her and given to others with less seniority. See id. at 7.
Plaintiff alleges that she was struck in the head by Angela MacBride with a binder and that her
car was vandalized by co-workers. See id. at 6–7.
Undated allegations of conduct that have not been previously adjudicated
Plaintiff alleged that co-workers Laurenzo and Nightengale referred to Plaintiff as a "spic"
in the presence of other employees and that she was also referred to as "wildlife." See id. at 5–6.
Similar to the objects placed near Plaintiff at Ray Brook, a can with "bullshit" on the label, a Mr.
Bill doll, and a pair of eye balls were placed near Plaintiff in Albany after she had made known
that these items offended her at Ray Brook. See id. at 7. In the Albany office, Plaintiff's coworkers allegedly discarded her personal items and Christopher Laurenzo and Jennifer Quade
barricaded Plaintiff in her workstation. See id. Defendants allegedly excluded Plaintiff from
training opportunities provided to others while she was in Albany. See id. at 7–8. Defendant
Tupaj allegedly criticized Plaintiff for providing early sick leave notification and refused to
address her seniority after her transfer to Albany. See id.
Facts surrounding service of Defendant Gerould
Defendant Gerould's business address is at the Avon regional office and he does not
regularly receive business correspondence from the Albany office. See Dkt. No. 11-12 at 1. In
November 2012, Defendant Gerould was handed a summons with his name on it and a copy of
the complaint filed in this case. See id. at 2. The envelope containing the summons was
addressed to the Albany office, delivered to the Avon office through intra-agency mail, and
handed to Defendant Gerould by a member of the Avon support staff. See id. A professional
process server served a summons and amended complaint on Defendant Gerould at his home on
May 28, 2013. See Dkt. No. 15-4 at 2.
Pending before the Court
Plaintiff's amended complaint asserts (1) Title VII discrimination, retaliation, and hostile
work environment claims on the basis of her race/color and ancestry/national origin, (2) New
York Executive Law § 290 ("HRL") discrimination and retaliation claims, and (3) a 42 U.S.C. §
1983 equal protection violation. See Dkt. No. 9 at 12-15. Plaintiff has requested that, if any of
her claims are ruled deficient, this Court grant leave to re-plead such claims. See Dkt. No. 15-5 at
Defendants have filed a motion to dismiss Plaintiff's amended complaint arguing dismissal
on seventeen different grounds. See Dkt. No. 11-13. Generally, Defendants contend as follows:
(1) individuals are not subject to Title VII liability; (2) Plaintiff has failed to exhaust her
administrative remedies; (3) Plaintiff has failed to state a claim upon which relief may be granted;
(4) the statute of limitations bars certain aspects Plaintiff's claims; (5) the Eleventh Amendment
bars Plaintiff's claims against Defendants in their official capacities; (6) Plaintiff has failed to
allege Defendants' personal involvement; (7) Plaintiff's equal protection claim is duplicative of
her Title VII allegations; (8) Plaintiff's HRL claims are barred by the election of remedies
doctrine; (9) personal jurisdiction over Defendant Gerould has not been obtained; and (10) the
Court should not exercise supplemental jurisdiction over Plaintiff's state law claims. See id.
Individual Liability under Title VII
"[I]ndividuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d
119, 120 (2d Cir. 2000). Plaintiff has conceded this and has withdrawn her Title VII claims
against the individual Defendants. See Dkt. No. 15-5 at 25 n.5.
Based on the foregoing, the Court grants Defendants' motion to dismiss on this ground and
the Title VII claims asserted against Defendants in their individual capacity are dismissed.
Filing a charge with the EEOC is "an essential element" of a Title VII claim and a
prerequisite to bringing suit in federal court. See Butts v. City of N.Y. Dep't of Hous., 990 F.2d
1397, 1402 (2d Cir. 1993), abrogated by statute on other grounds as stated in Hawkins v. 1115
Legal Service Care, 163 F.3d 684 (2d Cir. 1998); see also Francis v. City of N.Y., 235 F3d 763,
767-68 (2d Cir. 2000); 42 U.S.C. § 2000e-5(e). Jurisdiction is conferred if a claim was
previously raised in an EEOC charge or if the federal claim is "reasonably related" to such a
claim. See Butts, 990 F.2d at 1401–02. A claim is "reasonably related" to one raised in an EEOC
charge (1) when it falls within the "scope of the EEOC investigation which can reasonably be
expected to grow out of the charge;" (2) where the claim alleges retaliation for filing the EEOC
charge, and it would likely be discovered during the EEOC investigation; and (3) "where a
plaintiff alleges further incidents of discrimination carried out in precisely the same manner
alleged in the EEOC charge." Id. at 1402–03 (citations omitted).
"In determining whether a particular claim is reasonably related to the plaintiff's EEOC
complaint, '[w]e look not merely to the four corners of the often inarticulately framed charge, but
take into account the scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.'" Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir. 1992)
(quotation omitted). This loose pleading standard has subsequently been limited to instances
where the facts stated in the EEOC claim could have reasonably been expected to alert the EEOC
to an additional, unstated claim. See McKinney v. Eastman Kodak Co., 975 F. Supp. 462, 467
(W.D.N.Y. 1997) (failing to find reasonable relatedness between disparate impact and retaliation
claims when the employee claimed she was discharged in retaliation for previous complaints but
did not allege any facts describing the process that employer implemented in deciding to
terminate its employees). The focus is not necessarily on the specific claims charged with the
EEOC, but rather "'on the factual allegations made in the [EEOC] charge itself, describing the
discriminatory conduct about which a plaintiff is grieving.'" Deravin v. Kerik, 335 F.3d 195, 201
(2d Cir. 2003) (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir.
2002)). While EEOC claims need not be artfully pleaded, they must state more than "vague,
general allegations" to satisfy the EEOC exhaustion requirement. Butts, 990 F.2d at 1403.
In this case, Plaintiff filed an EEOC charge on March 16, 20121 alleging discrimination
based on national origin and retaliation. See Dkt. No. 11-3 at 2. Plaintiff's EEOC charge states:
I am a Hispanic female. I have worked for Respondent since 2006.
I have filed multiple national origin discrimination charges with the
New York State Division of Human Rights against Respondent. In
retaliation for having filed multiple discrimination charges against
Respondent, I have been subjected to harassment and different
terms and conditions of employment. Some of the most recent
incidents occurred since Autum[n] [sic] 2011. My Supervisors
continue to treat me unequally. My coworkers, Angela Reynolds,
Alicia Bormer and Ann Mcbride are always being granted all sorts
of training outside the Region with lodgin[g] [sic], food and
accommodations being paid for, but I have not received the same
1. Race Discrimination
The Second Circuit has held that, because "'[a]n assertion of racial bias is conceptually
distinct from a claim of discrimination on the basis of national origin,' raising a national origin
claim before the EEOC does not automatically suffice to alert the agency to investigate incidences
of racial discrimination." Deravin, 335 F.3d at 201 (quoting Sinai v. New England Tel. & Tel.
Co., 3 F.3d 471, 475 (1st Cir. 1993)). While national origin and race are often distinct elements,
"the term 'Hispanic' may trigger the concept of race." Alonzo v. Chase Manhattan Bank, N.A., 25
F. Supp. 2d 455, 459 (S.D.N.Y. 1998) (finding "reasonable relation" between race and national
origin when an employee described as Hispanic only checked the "national origin" box, and not
the "race" box, in an EEOC charge).
Although the EEOC charge states that the discrimination took place on March 16, 2012,
this is apparently an error and the parties have treated the EEOC charge as filed on or about this
date since no other indication of a date is included on the charge.
In the present matter, the Court finds that, since Plaintiff asserted an EEOC national origin
charge and described herself as Hispanic, the national origin charges are reasonably related to
racial claims; and, therefore, Plaintiff has sufficiently exhausted her administrative remedies in
regards to her claims of race discrimination. See Alonzo, 25 F. Supp. 2d at 459. Defendants'
motion to dismiss Plaintiff's Title VII race discrimination claims for failure to exhaust
administrative remedies is denied.
In her EEOC charge, Plaintiff asserted that she had been "subjected to harassment and
different terms and conditions of employment" in retaliation for filing discrimination charges
against Defendants. See Dkt. No. 11-3. Defendants admit that Plaintiff satisfactorily exhausted
her retaliation claim, but contend that the Title VII claim should be limited to the specific instance
of retaliation – lack of training opportunities – that Plaintiff stated in her EEOC charge. See Dkt.
No. 16 at 5.
The exhaustion requirement does not require a recital of each factual instance relied upon
in a Title VII claim; rather, "a district court may 'hear Title VII claims that either are included in
an EEOC charge or are based on [reasonably related] conduct subsequent to the EEOC charge . . .
.'" Danials-Kirisits v. N.Y. State Office of Court Admin., No. 05-CV-800S, 2013 WL 1755663,
*15 (W.D.N.Y. Apr. 24, 2013) (quoting Butts v. City of N.Y. Dep't of Hous., 990 F.2d 1397, 1401
(2d Cir. 1993)) ("Thus, a reasonably related claim applies only to alleged discriminatory conduct
that occurred after the EEOC charge is filed") (internal quotations omitted).
Plaintiff has fulfilled the exhaustion requirement for her retaliation claim due to her
specific statement of being denied training opportunities. See Dkt. No. 11-3 at 2. Plaintiff's
allegation of "harassment and different terms and conditions of employment" in connection with
her denial of training opportunities further supports her retaliation charge. See id. The Court
finds these allegations sufficient to exhaust this claim; and, therefore, Defendants' motion to
dismiss Plaintiff's Title VII retaliation claim for lack of exhaustion is denied.
Defendants contend that a plaintiff's reference in an EEOC charge alleging that she filed
previous discrimination complaints as a reason for retaliation does not, without other mention of
discrimination, sufficiently exhaust the discrimination claim. See Dkt. No. 16 at 5 (citing
Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996)). While Plaintiff's pro se EEOC
charge may be inartfully pled, liberally construing Plaintiff's statements that coworkers received
benefits not afforded to her, in connection with her reference to her multiple previous
discrimination charges and her national origin, the Court finds that the allegations were sufficient
to exhaust this claim. See Deravin v. Kerik, 335 F.3d 195, 201-02 (2d Cir. 2003). Specifically,
Plaintiff mentioned that she has previously filed national origin discrimination charges against
Defendants and that she was retaliated against for having filed those charges. See Dkt. No. 15-2.
Thereafter, Plaintiff claims that she has been subjected to harassment and different conditions of
employment, and that specifically identified coworkers have been granted training opportunities
that she has not. See id. Liberally construed, these allegations are sufficient to withstand
Defendants' motion to dismiss.
Based on the foregoing, Defendants' motion to dismiss Plaintiff's Title VII discrimination
claim for lack of exhaustion is denied.
Failure to State a Claim
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111–12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading , the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 152–53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the complaint must be dismissed[,]" id. at 570.
1. Title VII Claims
a. Hostile Work Environment
"In order to establish a hostile work environment claim under Title VII, a plaintiff must
produce enough evidence to 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.'" Gorzynski v. JetBlue
Airways Co., 596 F.3d 93, 102 (2d Cir. 2010) (quotation omitted). "A plaintiff must show not
only that she subjectively perceived the environment to be abusive, but also that the environment
was objectively hostile and abusive." Id. (citation omitted). "Generally, unless an incident of
harassment is sufficiently severe, 'incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.'" Id. (citation omitted). Moreover,
the alleged hostile work environment must have been created by conduct relating to a
characteristic protected by Title VII. See Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001).
"Beyond demonstrating a hostile work environment, a plaintiff must show a basis for
imputing the objectionable conduct to the employer." Gorzynski, 596 F.3d at 103 (citation
omitted). "When . . . the alleged harasser is in a supervisory position over the plaintiff, the
objectionable conduct is automatically imputed to the employer." Id. (citing Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Faragher v. City of
Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)).
It has been repeatedly held that "ordinary tribulations of the workplace, such as the
sporadic use of abusive language, gender-related jokes, and occasional teasing" are not
objectively severe enough to establish a hostile work environment. Faragher v. City of Boca
Raton, 524 U.S. 775, 778 (1998). The test not only looks at isolated incidents, but requires
consideration of all the circumstances present in the workplace contributing to its environment,
such as the amount that the alleged conduct interferes with an employee's work performance, its
frequency, severity, and threatening nature. See Harris, 510 U.S. at 23.
Plaintiff alleges that, starting in 2007, she had been the victim of several repeated
instances of noteworthy conduct. Specifically, Plaintiff claims that hangman's nooses, cans with
"bullshit" painted on them, pairs of eye balls and bull's-eye targets were placed near her
workstation, after she made it known that this conduct offended her. See Dkt. No. 9 at 6–8.
Plaintiff has been barricaded in her workplace, her personal items have been thrown away, and
she has been hit in the head by co-workers. See id. Moreover, Plaintiff alleges that her car was
vandalized and derogatory terms such as "spic" and "wildlife" were used towards her. See id.
These allegations rise above the ordinary tribulations of the workplace and are sufficient
to satisfy the objective prong. See id. Moreover, Plaintiff's complaint sufficiently alleges that she
had the subjective view that these instances were sufficiently abusive as evidenced by her
multiple DHR complaints of a hostile work environment. Accordingly, the Court finds that
Plaintiff has sufficiently pled a claim for hostile work environment; and, therefore, Defendants'
motion to dismiss this claim is denied.
b. Disparate Treatment
Title VII states that it is unlawful for an employer "to discharge any individual, or
otherwise to discriminate against any individual . . . because of such individual's race . . . or
national origin." 42 U.S.C. § 2000e-2(a)(1) (2013). To assert a prima facie Title VII disparate
treatment claim, a plaintiff must establish that:
(1) [s]he is a member of a protected class; (2) [s]he is competent to
perform the job or is performing h[er] duties satisfactorily; (3) [s]he
suffered an adverse employment decision or action; and (4) the
decision or action occurred under circumstances giving rise to an
inference of discrimination based on h[er] membership in the
Dotson v. City of Syracuse, No. 5:11-CV-620, 2013 WL 1293775, *10 (N.D.N.Y. Mar. 27, 2013)
(citations omitted). At the pleading stage, however, a plaintiff need not establish a prima facie
case, and can survive a motion to dismiss by asserting a plausible claim that "gives the defendant
fair notice of the plaintiff's claim, the grounds upon which it rests and indicate[s] the possibility of
discrimination." Acosta v. City of N.Y., No. 11 Civ. 856, 2012 WL 1506954, *5 (S.D.N.Y. Apr.
26, 2012) (citation omitted).
To constitute a Title VII adverse employment action, there must be a "materially adverse"
change in working conditions which "might be indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, . . . or other indices
. . . unique to a particular situation." Giscombe v. N.Y.C. Dep't of Educ., No. 12 Civ. 464, 2013
WL 829127, *5 (S.D.N.Y. Feb. 28, 2013) (citations omitted); see also Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998) ("A tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significant different responsibilities, or a decision causing a significant change in benefits").
Further, a "tangible employment action in most cases inflicts direct economic harm" and "requires
an official act of the enterprise" which must be done with the "official power of the enterprise,"
not merely harm inflicted by a co-worker. Burlington Indus., 524 U.S. at 762.
The plaintiff must "raise a plausible inference that the action was taken on account of [her]
race or national origin." Acosta, 2012 WL 1506954, at *5; see also Griffin v. Brighton Dental
Group, No. 09-CV-6611P, 2013 WL 1221915, *5 (W.D.N.Y. Mar. 5, 2013) ("Evidence that an
individual was treated differently from other employees, standing alone, is insufficient to prove
discrimination"). Evidence that the plaintiff was treated less favorably than other, similarlysituated employees who were not a member of the plaintiff's protected class supports an inference
of discriminatory intent. See Griffin, 2013 WL 1221915, at *6. Also, evidence that the plaintiff
was subjected to offensive treatment, "such as name-calling, slurs, or bad jokes," directed at the
plaintiff's membership in a protected class indicates discrimination. Id. (internal quotations
In the present matter, Defendants concede the first two elements, i.e., that Plaintiff is a
member of a protected class and that she was qualified for her position. See Dkt. No. 15-5 at 21.
Regarding the alleged adverse employment, Plaintiff alleges that she was denied training
opportunities and overtime pay that other, non-Hispanic employees were not. See Dkt. No. 9 at
6–7. This allegation, in connection with discriminatory comments directed towards Plaintiff –
such as being called a "spic" and "wildlife," and being told to consider moving to Puerto Rico –
give rise to an inference that Plaintiff suffered an adverse employment action because of her race
or national origin. See id. Therefore, the Court denies Defendants' motion to dismiss Plaintiff's
Title VII disparate treatment claim.
To avoid dismissal of a Title VII retaliation claim, a plaintiff must plausibly allege that:
"'(1) she was engaged in an activity protected under Title VII; (2) the employer was aware of
plaintiff's participation in the protected activity; (3) the employer took adverse action against
plaintiff; and (4) a causal connection existed between the plaintiff's protected activity and the
adverse action taken by the employer.'" Gordon v. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000)
(quotation omitted). "Protected activity" includes any "action taken to protest or oppose
statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.
2000). Proof of causation can be shown either indirectly through circumstantial evidence, or
"directly, through evidence of retaliatory animus directed against the plaintiff by the defendant."
Gordon, 232 F.3d at 117. In order to show a retaliatory motive by means of circumstantial
evidence, there must be temporal proximity between the adverse employment action and the
protected activity. See Muhammad v. Juicy Couture/Liz Clairborne, Inc., No. 09-Civ-8978, 2010
WL 4032735, *6 (S.D.N.Y. July 30, 2010). "At the pleading stage, Plaintiff 'need not establish
[such] a prima facie case of discrimination, but must nonetheless allege evidence stating a
plausible claim of retaliation.'" Stewart v. City of New York, No. 11 Civ. 6935, 2012 WL
2849779, *10 (S.D.N.Y. July 10, 2012) (quotation and other citation omitted).
When a plaintiff claims retaliation for filing previous complaints of discrimination, such
complaints "are protected activity even when the underlying conduct complained of was not in
fact unlawful so long as [the plaintiff] can establish that he possessed a good faith, reasonable
belief that the underlying challenged actions of the employer violated [the] law." Amin v. Akozo
Nobel Chems., Inc., 282 Fed. Appx. 958, 961 (2d Cir. 2008) (internal quotations omitted).
In Amin, the Second Circuit found that the plaintiff met his burden of establishing
retaliatory motive through evidence that he (1) repeatedly complained about discrimination and
racism by employer, (2) was instructed to stop making such complaints, (3) persisted in making
such complaints, and (4) was fired shortly after one such complaint. See id. at 962. Even though
the defendant claimed that the plaintiff was fired for "insubordinate behavior and difficulty in
working effectively with others," the court held that the proffered reasons for the plaintiff's
termination may have been pretextual, and the plaintiff fulfilled his burden of showing that "the
employment decision of which he complains 'was more likely than not motivated, in whole or in
part,' by unlawful reasons." Id. (quotation omitted).
In the present matter, Plaintiff filed several claims of discrimination or harassment with
various regulatory agencies.2 See Dkt. No. 11-13 at 5–6. The Affirmative Action Office of the
DEC issued a determination that probable cause existed as to Plaintiff's complaint of
discriminatory treatment. See Dkt. No. 11-7 at 8. Moreover, as to Plaintiff's second DHR claim
of retaliation, the office found that there is sufficient evidence to indicate that there is probable
cause to believe that Plaintiff may have been subject to discriminatory treatment, including
retaliation. See Dkt. No. 11-7 at 6. Plaintiff's other DHR claim was determined to not give rise to
probable cause of discrimination. See Dkt. No. 11-11 at 2. The EEOC charge was dismissed
because "most of [Plaintiff's] allegations [were] untimely (beyond 300 days) or [had] already been
investigated by the NYSDHR." See Dkt. No. 11-2 at 2.
While Plaintiff's alleged discrimination in these administrative complaints may not have
been an actual violation of Title VII, her factual assertions, coupled with the findings of probable
cause from the DHR, establish that Plaintiff acted with good faith and a reasonable belief that
such violations existed. Moreover, the investigations clearly demonstrate that Defendants were
In March 2008, Plaintiff filed a discrimination charge with the DEC's Affirmative Action
Office. In October 2008, Plaintiff filed hostile work environment and retaliation claims with
DHR. On March 30, 2010, Plaintiff filed discrimination and retaliation charges with DHR. On
May 18, 2012, Plaintiff filed a discrimination charge with the EEOC. On January 4, 2013,
Plaintiff filed a hostile work environment and discrimination complaint with DEC's Affirmative
aware of Plaintiff's protected activity. See Dkt. No. 11-8 at 8. The final two elements are
satisfied by Plaintiff's termination letter. Defendants took adverse action against Plaintiff and a
causal connection to the protected activity is demonstrated by the fact that she was terminated
based upon "persistent and unfounded complaints that have disrupted the workplace, conduct that
undermined the mission of the unit, insubordination, and time and attendance concerns." See Dkt.
No. 15-3 at 2. Moreover, Plaintiff was terminated twenty-one days after filing her last complaint
with DEC's Affirmative Action Office, and while this civil action was ongoing. See Dkt. No. 1113 at 6.
Based on the foregoing, the Court finds that Plaintiff has plausibly alleged that her
termination was, at least in part, due to her filing of previous discrimination complaints; and,
therefore, denies Defendants' motion to dismiss the Title VII retaliation claim for failure to state a
4. HRL Claims
a. Discrimination and Retaliation
Discrimination and retaliation "claims under the HRL are evaluated using the same
analytical framework used in Title VII actions." Lore v. City of Syracuse, 670 F.3d 127, 169 (2d
Cir. 2012). Accordingly, Defendants' motion to dismiss Plaintiff's HRL discrimination and
retaliation claims for failure to state a cause of action is denied.
b. Aid and Abet
As explained below, Plaintiff has sufficiently pled that Defendants Tupaj and Garneau
aided and abetted prohibited conduct in violation of HRL § 296(6). See infra Part (F)(2).
Therefore, Defendants' motion to dismiss Plaintiff's HRL aid and abet claim for failure to state a
cause of action is denied.
5. Equal Protection
An equal protection violation requires a plaintiff to allege that "(1) the [plaintiff],
compared with others similarly situated, was selectively treated; and (2) that such selective
treatment was based on impermissible considerations . . . ." Diesel v. Town of Lewisboro, 232
F.3d 92, 103 (2d Cir. 2000) (citations omitted). To establish an inference of discriminatory
motive, the plaintiff must sufficiently plead "that other similarly situated individuals – who are
outside of the protected class to which the plaintiff belongs – have been treated differently."
Faccio v. Landry, No. 1:10–CV–785, 2012 WL 3637412, *3 (N.D.N.Y. Aug. 22, 2012); see also
Village of Willobrook v. Olech, 528 U.S. 562, 563 (2000) (recognizing equal protection claims
where there is no rational basis for the difference in treatment between similarly situated
Plaintiff indicates several incidents where she was allegedly treated differently from
similarly situated individuals. First, Plaintiff was put on sick leave notification while other, nonHispanic employees were not. See Dkt. No. 9 at 9. Second, Plaintiff alleges that other, nonHispanic coworkers were afforded training opportunities that she was not. See id. at 7. Third,
Plaintiff alleges that Defendants limited her overtime in spite of her seniority, while other nonHispanic employees with less seniority were afforded overtime. See id. at 10.
Defendants failed to provide any explanation for the instances Plaintiff has alleged she
was treated differently from similarly situated coworkers. See Dkt. No. 11-13 at 21–22. At this
stage in the litigation, Plaintiff's allegations are sufficient to state a plausible equal protection
claim. Accordingly, Defendants' motion to dismiss the Section 1983 equal protection claim for
failure to state a claim is denied.
Statute of Limitations
1. Title VII Claims
In New York, an employee must file an EEOC charge within 300 days3 after the alleged
unlawful employment action occurred. See 42 U.S.C. § 2000e-5(e)(1). If a plaintiff files an
EEOC charge that is timely as to any incident of discrimination, the continuing violations
exception treats any related "incident of discrimination in furtherance of an ongoing policy of
discrimination" as timely as well, "even if they would be untimely standing alone." Lambert v.
Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), abrogated in part on other grounds by Kasten v.
Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011). The continuing violations
exception requires showing "specific discriminatory policies or mechanisms such as
discriminatory seniority lists, or discriminatory employment tests." Id. (internal citations
omitted); see also Askew v. New York, No. 1:09-CV-553, 2013 WL 450165, *7 (N.D.N.Y. Feb. 6,
2013) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997)) ("[T]he mere
allegation of the existence of such a policy would be sufficient to withstand a challenge for failure
to state a claim . . ."). The exception does not apply, however, to "multiple incidents of
discrimination, even similar ones, that are not the result of a discriminatory policy or
mechanism." Id.; but see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)
(applying the continuing violations doctrine to "serial violations").
The EEOC charge does not have a date on it and the parties have indicated that it was
issued either on or around May 18, 2012 or sometime before May 2, 2012. Defendants argue that
July 22, 2011 is the cutoff date for the statute of limitations. See Dkt. No. 11-13 at 18.
Hostile work environment claims are treated with a different approach because "[t]heir
very nature involves repeated conduct." Nat'l R.R. Passenger Corp., 536 U.S. at 115, 117 (2002)
("It does not matter, for purposes of [Title VII], that some of the component acts of the hostile
work environment fall outside the statutory time period"). Hostile work environment claims are
judged by the cumulative affect of individual acts which may not be themselves actionable, but
together amount to a one "unlawful employment practice." See 42 U.S.C. § 2000e-5(e)(1). To
file a timely hostile work environment claim, the plaintiff need only show that one of the
contributing acts occurred within the 300 day statutory requirement. See Nat'l R.R. Passenger
Corp., 536 U.S. at 117.
Plaintiff has listed several alleged instances of discriminatory or retaliatory conduct in the
workplace starting after Defendant Tupaj assumed a supervisory role in early 2007. See Dkt. No.
9 at 5-8; Dkt. No. 11-8 at 3. Plaintiff alleges discriminatory conduct from at least nine named coworkers. See Dkt. No. 9 at 5-8. The alleged conduct includes, among others, comments about
Plaintiff's national origin; co-workers placing objects near Plaintiff's work station that she
considered offensive; requiring Plaintiff to provide extended notice for sick leave; denying
Plaintiff from participating in training opportunities; and Defendant Tupaj's refusal to address
Plaintiff's seniority after her transfer to Albany. See id. Plaintiff alleges that after she was
transferred from Ray Brook to Albany, the same type of discriminatory conduct continued to
occur because she "had made it known that [this conduct] offended her when she was assigned to
Ray Brook." See Dkt. No. 9 at 7.
Plaintiff asserts that this conduct was the result of a policy to tolerate, condone, and
encourage such conduct established and implemented by Defendants Tupaj and Gerould and that
Defendant DEC "fostered the pervasively hostile work environment by failing to take action to
remedy the situation and neglecting to provide diversity training." See Dkt. No. 9 at 8. This
alleged discriminatory policy of the DEC is sufficient to invoke the continuing violations
exception at the pleading stage. Plaintiff's transfer from Ray Brook to Albany does not establish a
new, distinct continuing violation because the alleged conduct, the supervisors, and the alleged
policy of the DEC remained essentially the same at each location. See Cornwell v. Robinson, 23
F.3d 694, 704 (2d Cir. 1994) (finding a continuing violation even after plaintiff's three-year
absence because the plaintiff "suffered the same kinds of harassment . . . under the aegis of some
of the same supervisory personnel").
Based on the foregoing, the Court denies Defendants' motion to dismiss the discriminatory
conduct contributing to the alleged Title VII violations occurring before July 22, 2011.
2. HRL Claims
New York has adopted the continuing violation doctrine for HRL violations, see Fleming
v. Verizon N.Y., Inc., 419 F. Supp. 2d 455, 465 (S.D.N.Y. 2005). Since Plaintiff has alleged a
continuing pattern of illegal conduct under the HRL, Defendants' motion to dismiss Plaintiff's
HRL claims accruing before October 24, 2009 is denied.
3. Equal Protection
In their reply brief, Defendants asserted a statute of limitations defense for Plaintiff's equal
protection claim. See Compania del Bajo Caroni (Caromin), C.A. v. Boliviarian Republic of
Venez., 341 Fed. Appx. 722, 724 (2d Cir. 2009) ("A district court enjoys broad discretion  to
consider arguments made for the first time in a reply brief"). Section 1983 claims arising in New
York are subject to a three-year statute of limitations. See Pearl v. City of Long Beach, 296 F.3d
76, 79 (2d Cir. 2002); N.Y. C.P.L.R. § 214 (McKinney 2013).
While Plaintiff's failure to include dates of events listed in her complaint does not lead to
dismissal of her claims at the pleading stage, the previously adjudicated DHR complaints provide
a timeline for the conduct. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007) ("The pleading
requirements in the Federal Rules of Civil Procedure . . . do not compel a litigant to anticipate
potential affirmative defenses, such as the statute of limitations, and to affirmatively plead facts in
avoidance of such defenses"). Defendants contend that conduct that was adjudicated in the
August 2008 and October 2008 DHR complaints occurred prior to the three year limitation for
Section 1983 claims. Although Defendants correctly state that Section 1983 claims in New York
are governed by a three-year statute of limitations, Defendants fail to address the continuing
"Under the continuing violation doctrine, 'if a plaintiff has experienced a continuous
practice and policy of discrimination, . . . the commencement of the statute of limitations period
may be delayed until the last discriminatory act in furtherance of it.'" Bermudez v. City of N.Y.,
783 F. Supp. 2d 560, 574 (S.D.N.Y. 2011) (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359
(2d Cir. 2001)). In the present matter, since it is unclear whether the alleged conduct would
constitute a continuing violation and because this argument was first raised in Defendants' reply
thereby depriving Plaintiff an opportunity to respond to the argument, the Court finds that
dismissal on this ground is inappropriate at this time. See Allen v. Egan, 303 F. Supp. 2d 71, 79
(D. Conn. 2004) ( "Determining whether the events comprising the basis for [plaintiff's] claim are
part of a single, continuing course of conduct is fact-intensive, and therefore inappropriate at this
stage of the proceedings. Defendants may, of course, re-assert this defense in a properly
supported motion under Rule 56 of the Federal Rules of Civil Procedure"); Bloom v. N.Y. City Bd.
of Educ., No. 00 Civ. 2728, 2003 WL 1740528, *10 (S.D.N.Y. Apr. 2, 2003) (denying motion to
dismiss as premature where the plaintiff alleged a continuing violation and set forth at least one
timely adverse employment action alleged to be discriminatory).
Based on the foregoing, Defendants' motion to dismiss Plaintiff's equal protection claim as
untimely is granted in part and the events adjudicated in the two 2008 DHR claims are dismissed
with regards to Plaintiff's equal protection claim.
Eleventh Amendment Immunity
The Eleventh Amendment protects a state against suits brought in federal court by "private
parties seeking to impose a liability which must be paid from public funds in the state treasury."
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). This immunity extends to both state agencies
and officials sued for damages in their official capacities when the essence of the plaintiff's claim
seeks recovery from the state as the real party in interest. See, e.g., Daisernia v. State of N.Y., 582
F. Supp. 792, 798-99 (N.D.N.Y. 1984) (citations omitted). Further, "[t]o the extent that a state
official is sued for damages in his official capacity, such a suit is deemed to be a suit against the
state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the
state." Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) (citations omitted).
Although this immunity bars recovery of "retroactive monetary relief" against a state, it does not
shield against claims seeking "prospective injunctive relief." Hutto v. Finney, 437 U.S. 678, 690
1. Section 1983 Claims
Plaintiff is seeking "all forms of relief recoverable under [Section 1983] including back
pay, front pay and compensatory damages." See Dkt. No. 9 at 15. Plaintiff has asserted Section
1983 equal protection claims against the DEC and Defendant Martens in his official capacity as
head of the DEC. See id. at 3. Plaintiff does not indicate whether Defendants Gerould and Tupaj
are being sued in their individual or official capacities. See id. Defendants ask this Court to infer
that Plaintiff's failure to specifically indicate the capacity in which Defendants Gerould and Tupaj
are being sued should result in the determination that they are being sued in their official
capacities. See Dkt. No. 11-13 at 20.
It is well-established that, on a motion to dismiss, all reasonable inferences must be drawn
in the plaintiff's favor. See Scutti Enters., LLC. v. Park Place Entm't Corp., 322 F.3d 211, 214
(2d Cir. 2003). To the extent that Plaintiff has brought this claim against Defendants Gerould and
Tupaj in their official capacities, the claims are dismissed. To the extent that the claims are
brought against these Defendants in their individual capacities, however, dismissal is
inappropriate at this time. Accordingly, the Court grants Defendants' motion to dismiss Plaintiff's
official capacity equal protection claims for monetary damages. Further, the Court dismisses
Plaintiff's official capacity equal protection claims against Defendants Martens and DEC for
2. HRL Claims
"[T]he New York Human Rights Law includes no waiver of the state's [Eleventh
Amendment] immunity to suit in federal court." Lambert v. Office of Mental Health, No.
97–CV–1347, 2000 WL 574193, *7 (E.D.N.Y. Apr. 24, 2000). Therefore, Defendants' motion to
dismiss Plaintiff's HRL discrimination and retaliation claims due to Eleventh Amendment
immunity is granted in part and Plaintiff's HRL discrimination and retaliation claims against
Defendant DEC and the individual Defendants sued in their official capacities are dismissed.4
Defendants argue that Plaintiff failed to allege the personal involvement of Defendants
Gerould and Tupaj. See Dkt. No. 11-13 at 20. Plaintiff alleges that Defendant Gerould
minimized the Affirmative Action Office's finding of hostile work environment by calling it
"embellished." See Dkt. No. 9 at 6. Plaintiff asserts that Defendant Tupaj minimized the
importance of counseling memos issued to other dispatchers in response to the Affirmative
Action Office's finding by calling them a "slap on the hand." See id. Further, Plaintiff claims that
Defendant Tupaj criticized Plaintiff for requesting sick leave in advance and required her to
provide doctors notes for sick leave absences, which was not required of other employees. See id.
at 7. Plaintiff alleges that Defendant Tupaj "refused to address Plaintiff's seniority after her
transfer to Albany." See id. at 8. Moreover, Plaintiff claims that both Defendants Tupaj and
Gerould "fostered the pervasively hostile work environment by engaging in the improper conduct
[themselves] and failing to take action to remedy the situation." See id. Defendant Fanelli is only
named in the caption and nowhere in the body of the complaint. See id. at 1. The only mention
of Defendant Martens in the complaint is as follows: "Defendant Joe Martens is the
Commissioner of the Dept. of Environmental Conservation and is sued in his official capacity as
head of the Dept. of Environmental Conservation." See id. at 9.
"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
Plaintiff's HRL aid and abet claims against Defendants Tupaj and Gerould in their
individual capacities are not dismissed on this ground.
1994) (quotation and other citations omitted). A defendant in a supervisory position may be
found personally involved if:
The defendant may have directly participated in the infraction, . . .
after learning of the [alleged constitutional] violation through a
report or appeal, may have failed to remedy the wrong, . . . [if he]
created a policy or custom under which unconstitutional practices
occurred, or allowed such a policy or custom to continue, . . . [or if
he] was grossly negligent in managing subordinates who caused the
Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986) (internal citations omitted). Merely
naming a defendant as a party to the action without any further indication of participation in
constitutional violations is insufficient pleading for purposes of personal involvement. See Jaffer
v. Chem. Bank, No. 93 CIV. 8459, 1994 WL 392260, *3 (S.D.N.Y. July 26, 1994) (citations
1. Equal Protection
Plaintiff claims that both Defendants Tupaj and Gerould – who were in supervisory
positions during the relevant time periods – knew of the alleged discriminatory conduct against
Plaintiff and that each of them failed to take adequate action to remedy the conduct of Plaintiff's
coworkers. See Dkt. No. 9 at 6–8. Rather than relying on a "formulaic recitation" of the elements
of the claim as Defendants suggest, Plaintiff provided specific factual allegations of instances
where the Defendants failed to take adequate remedial measures. See id. at 6 (noting the lack of
action after the Affirmative Action Bureau's probable cause finding of discriminatory conduct).
These factual allegations, coupled with the allegation of condoning and fostering a pervasively
discriminatory workplace, sufficiently plead Defendants Tupaj and Gerould's personal
involvement. However, since Plaintiff only mentions Defendants Martens and Fanelli in the list
of parties and the caption, Defendants' motion to dismiss the Section 1983 equal protection claim
for lack of personal involvement is granted as to Defendants Martens and Fanelli. See Jaffer,
1994 WL 392260, at *3 (holding that "[w]hen a complaint's caption names a defendant but the
complaint does not indicate that the named party injured the plaintiff or violated the law, the
motion to dismiss must be granted") (citations omitted).
2. HRL Aid and Abet
While an individual employee is not ordinarily subject to suit under the HRL, "[u]nder the
aiding and abetting provision of NYHRL, an individual employee who actually participates in the
conduct giving rise to a discrimination claim may be held personally liable." Miotto v. Yonkers
Pub. Sch., 534 F. Supp. 2d 422, 427 (S.D.N.Y. 2008); see also N.Y. EXEC. LAW § 296(6)
(McKinney 2013) ("It shall be an unlawful discriminatory practice for any person to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden under this article"). In claims
regarding the actions of a supervisor, a plaintiff need not allege that the said supervisor personally
carried out the discriminatory conduct. See Lewis v. Triborough Bridge & Tunnel Auth., 77 F.
Supp. 2d 376, 384 (S.D.N.Y. 1999). "Rather, the case law establishes beyond cavil that a
supervisor's failure to take adequate remedial measures can rise to the level of 'actual
participation' under HRL § 296(6)." Id.
As the analysis for personal involvement under HRL § 296(6) is essentially the same as a
Section 1983 equal protection claim, the Court finds that Plaintiff has sufficiently pleaded
Defendants Gerould and Tupaj's personal involvement. As such, the Court denies Defendants'
motion to dismiss Plaintiff's HRL aid and abet claim.
A Section 1983 claim may not "be brought to vindicate rights conferred only by a statute
that contains its own enforcement structure, such as Title VII." Alvarado v. Metro. Transp. Auth.,
No. 07 Civ. 3561, 2012 WL 1132143, *16 (S.D.N.Y. Mar. 30, 2012). Although Title VII claims
are not cognizable against individuals, individuals may be held liable under Section 1983 for
certain discriminatory acts. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir.
2004); see also Gierlinger v. N.Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994) ("A Title VII
plaintiff is not precluded from bringing a concurrent § 1983 cause of action, so long as the § 1983
claim is based on a distinct violation of a constitutional right"). Thus, claims against individual
defendants, "sued in their individual capacities under §  1983, are not automatically
Since Plaintiff has withdrawn her Title VII claims against the individual Defendants, her
equal protection claims against Defendants Gerould and Tupaj in their individual capacities are
not duplicative of her Title VII claims. See Dkt. No. 15-5 at 25 n.5. Accordingly, Defendants'
motion to dismiss Plaintiff's Section 1983 equal protection claims against Defendants Gerould
and Tupaj as duplicative of her Title VII claims is denied.
Election of Remedies
"Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a
cause of action . . . unless such person had filed a complaint hereunder or with any local
commission on human rights." N.Y. EXEC. LAW § 297(9) (McKinney 2013). Plaintiff incorrectly
argues that the election of remedies doctrine seeks to prevent only identical claims. See Dkt. No.
15-5 at 28. To the contrary, "[c]laims need not be identical in order to be barred by the state or
city election of remedies provision." Rosario v. N.Y.C. Dep't of Educ., No. 10 Civ. 6160, 2011
WL 1465763, *2 (S.D.N.Y. Apr. 15, 2011) ("Since the underlying facts of the claim  brought
before the NYSDHR are almost identical to those alleged in this case, the plaintiff's state law
claims are barred pursuant to NYSHRL § 297(9)").
Plaintiff filed discrimination claims with the DHR on or about August 27, 2008, October
8, 2008, and March 30, 2010. See Dkt. Nos. 11-5, 11-6, 11-9. The factual allegations in these
claims are set out in Part II(A) of this opinion. See infra Part II(A). Since these allegations have
been previously adjudicated by the DHR, Defendants' motion to dismiss Plaintiff's HRL claims
insofar as they relate to the factual allegations listed in Part II(A) is granted.5
Personal Jurisdiction over Defendant Gerould
Rule 4 of the Federal Rules of Civil Procedure states that an individual may be served in a
judicial district of the United States by "following state law for serving a summons . . . in the state
where the district court is located or where service is made." FED. R. CIV. P. 4(e). Rule 308 of
the New York Civil Practice Law and Rules ("CPLR") states that an individual may be served:
by delivering the summons within the state to a person of suitable
age and discretion at the actual place of business, dwelling place or
usual place of abode of the person to be served and by either
mailing the summons to the person to be served at his or her last
known residence or by mailing the summons by first class mail to
the person to be served at his or her actual place of business . . . .
N.Y. C.P.L.R. § 308(2) (McKinney 2013); see also N.Y. C.P.L.R. § 308(6) ("'[A]ctual place of
business' shall include any location that the defendant, through regular solicitation or
advertisement, has held out as its place of business"). Additionally, service may be effected by
This dismissal is only applicable to the HRL claims and does not have any impact on
Plaintiff's Title VII or equal protection claims.
"delivering a copy of the summons and of the complaint to the individual personally." FED. R.
CIV. P. 4(e)(2)(A). The purpose of the service requirements is "to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections." Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); see also Durant v. Traditional Invs.,
Ltd., No. 88 CIV. 9048, 1990 WL 33611,*3 (S.D.N.Y. Mar. 22, 1990) ("[W]hen a defendant
receives actual notice of a lawsuit brought against him, technical imperfections with service will
rarely invalidate the service").
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural
requirement of service of summons must be satisfied." Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987). Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a
defendant may assert insufficiency of process by motion. "The burden is on the plaintiff to
establish that his service was not insufficient. If the court determines that it was insufficient, the
court may, but is not required to, dismiss the action. Alternatively, the court may grant leave to
allow the plaintiff to cure the insufficiency." Sajimi v. City of New York, No. 07–CV–3252, 2011
WL 135004, *3 (E.D.N.Y. Jan. 13, 2011) (internal citations omitted).
In the present matter, summonses were issued by the Court on October 25, 2012. See Dkt.
No. 3. Further, the record indicates that, on November 16, 2012, Plaintiff attempted to serve
Defendant Gerould at the Albany office, and this service was accepted by Jonathan Binder, a
senior attorney with Defendant DEC. See Dkt. No. 5 at 6. On that same date, Plaintiff served the
New York State Attorney General. See id. at 1. According to Defendant Gerould's affidavit,
however, he was transferred from the Central Office in Albany to the Avon Office in April of
2011. See Dkt. No. 11-12 at ¶ 2. As such, Defendant Gerould claims that service was improper
because the Albany Office was no longer his "actual place of business." N.Y. C.P.L.R. § 308(2).
As Defendants correctly point out, the term "actual place of business" has been defined as
a place where the defendant is regularly physically present or regularly transacts business. See
Sajimi, 2011 WL 135004, at *3 (citation omitted). Although Defendant Gerould undoubtedly
would have been properly served between May 2007 and April 2011 when he worked for the
DEC out of the Albany Office, service was not proper on November 16, 2012 – one year and
eight months after he had been transferred to the Avon Office. See Pierce v. Village of
Horseheads Police Dept., 107 A.D.3d 1354, 1355-56 (3d Dept. 2013) (citations omitted); Lange
v. Town of Monroe, 213 F. Supp. 2d 411, 420-21 (S.D.N.Y. 2002). As such, Plaintiff failed to
properly serve Defendant Gerould and the Court does not have personal jurisdiction over him.
Since service was not made within 120 days of filing the complaint, the Court must decide
whether to dismiss the complaint against Defendant Gerould or whether Plaintiff should be
provided with an extension of time to effect proper service.6
Rule 4 provides, in relevant part:
If a defendant is not served within 120 days after the complaint is
filed, the court — on motion or on its own after notice to the
plaintiff — must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m).
However, even, as here, "where good cause does not exist, courts remain free to exercise
The Court notes that on May 28, 2013, Plaintiff apparently served Defendant Gerould
with a summons and the amended complaint. See Dkt. No. 15-4. As Defendant correctly points
out, this service was not effected within 120 days of filing the complaint. Rule 4(m) and the
relevant case law, however, clearly articulate that the availability of a plaintiff to serve the
complaint beyond the 120 day limit is a privilege that must be granted by the Court. See Efaw v.
Williams, 473 F.3d 1038, 1041 (9th Cir. 2007). As such, without first obtaining permission from
the Court, Plaintiff's attempted service of the complaint on Defendant Gerould on May 28, 2013
their discretion in extending the time for service." Feingold v. Hankin, 269 F. Supp. 2d 268, 277
(S.D.N.Y. 2003); see also Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007) ("[A]
district court may grant an extension in the absence of good cause, but it is not required to do so"
(citation omitted)). In determining whether a discretionary extension is appropriate in the
absence of good cause, courts consider the following four factors: "(1) whether the applicable
statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of
the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the
defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiff's
request for relief from the provision." Beauvoir v. U.S. Secret Service, 234 F.R.D. 55, 58
(E.D.N.Y. 2006) (citations omitted); see also Feingold, 269 F. Supp. 2d at 277 (citation omitted).
With respect to the first factor, "'[c]ourts have consistently considered the fact that the statute of
limitations has run on a plaintiff's claim as a factor favoring the plaintiff in a Rule 4(m) analysis.'"
Id. (citations omitted). Indeed, this factor alone may be sufficient to justify extending the time for
service. See id. (citation omitted); see also Advisory Committee Notes to Fed. R. Civ. Proc. 4(m)
("Relief may be justified, for example, if the applicable statute of limitations would bar the refiled
action . . .").
In the present matter, the first, second and fourth factors all weigh in favor of granting an
extension to serve. First and most important, many of Plaintiff's claims against Defendant
Gerould would be time barred because of the applicable statute of limitations. Second, it is
apparent that Defendant Gerould had actual notice of the action, which he admits in his affidavit
in support of the motion to dismiss. See Dkt. No. 11-12 at ¶ 5. The third factor weighs against
Plaintiff because Defendant Gerould first raised this issue in the December 28, 2012 motion to
dismiss the original complaint. However, the Court also finds that Defendant Gerould would not
be prejudiced by an extension of time to serve him and that a fair balance of the four factors
favors granting Plaintiff a discretionary extension under Rule 4(m). As such, Plaintiff will be
given thirty days in which to effect service upon Defendant Gerould and Defendants' motion to
dismiss on this ground is denied. If Plaintiff fails to effect service within thirty days of the filing
date of this Memorandum-Decision and Order, Defendant Gerould will be dismissed from this
action, without further order of the Court.
Defendants assert that the Court should decline to exercise supplemental jurisdiction over
Plaintiff's state HRL claims because all federal claims should be dismissed. See Dkt. No. 11-13 at
22. Since not all of Plaintiff's federal claims have been dismissed, Defendants' motion for this
Court to decline supplemental jurisdiction is denied.
Leave to Re-plead
Rule 15 of the Federal Rules of Civil Procedure states that a court should freely grant
leave to re-plead "when justice so requires." FED. R. CIV. P. 15(2). It is "well-established that
'outright dismissal for reasons not going to the merits is viewed with disfavor in the federal
courts.'" Harrison v. Enventure Capital Group, Inc., 666 F. Supp. 473, 479 (W.D.N.Y. 1987)
(quoting Nagler v. Admiral Corporation, 248 F.2d 319, 322 (2d Cir. 1957)). For this reason,
"dismissals for insufficient pleadings are ordinarily with leave to replead." Stern v. General Elec.
Co., 924 F.2d 472, 477 (2d Cir. 1991). Leave to amend a pleading need not be granted, however,
if it would be futile to do so. See O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002)
(citing Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995)).
The amended complaint before the Court is Plaintiff's second pleading. See Dkt. No. 9.
As discussed, the majority of claims dismissed were on substantive grounds and not due to
inadequate pleading. First, Plaintiff voluntarily withdrew her Title VII claims against the
individual Defendants. See Dkt. No. 15-5 at 25 n.5. Second, Plaintiff's equal protection claim for
events previously adjudicated in two 2008 DHR claims are dismissed for reasons of statutory
limitations. Third, several of Plaintiff's claims against Defendants in their official capacities are
precluded by the Eleventh Amendment. Fourth, portions of Plaintiff's HRL claims are dismissed
based on the election of remedies doctrine, not due to insufficient pleading. As to Plaintiff's
failure to plausibly allege Defendants Martens and Fanelli's personal involvement, Plaintiff has
failed to provide the Court with any reasons to grant leave to re-plead. Moreover, Defendants
would be prejudiced due to the length of time this action has already been pending and this issue
was brought to Plaintiff's attention in Defendants' motion to dismiss the original complaint.
Although Plaintiff filed an amended complaint in response to the motion, she failed to remedy
this defect despite being placed on notice through Defendants' motion.
Based on the foregoing, the Court denies Plaintiff's request for leave to re-plead.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion to dismiss the amended complaint is GRANTED in
part and DENIED in part in accordance with this Memorandum-Decision and Order;7 and the
Plaintiff's remaining claims are Title VII retaliation, hostile work environment, and
disparate treatment against Defendants Martens and DEC; Section 1983 equal protection claims
ORDERS that Plaintiff's request for leave to re-plead is DENIED; and the Court further
ORDERS that Plaintiff shall have THIRTY (30) DAYS from the filing date of this
Memorandum-Decision and Order to effect service on Defendant Gerould and file proof of such
service with the Court; and the Court further
ORDERS that, if Plaintiff fails to effect service on Defendant Gerould within THIRTY
(30) DAYS of the filing date of this Memorandum-Decision and Order, Defendant Gerould will
be dismissed from this action, without further order of the Court.
ORDERS that the Clerk of the Court shall serve the parties with a copy of this
Memorandum-Decision and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 20, 2013
Albany, New York
against Defendants Gerould and Tupaj, individually; and HRL § 296(6) aid and abet claims
against Defendants Gerould and Tupaj relating to events not mentioned in the 2008 DHR
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