Chinnery v. New York State Office of Children-N-Family Services et al

Filing 50

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 31 Report and Recommendations, 23 Motion to Dismiss filed by New York State Office of Children-N-Family Services. The Court APPROVES, ADOPTS, and RATIFIES the Report's factual recitations (see id. at 1-8) and all remaining legal findings and recommendations (see id. at 8-17). Accordingly, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part. (Signed by Judge Deborah A. Batts on 11/5/2012) (ae)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------x

MAURICE A. CHINNERY,

Plaintiff,

v.

10 Civ. 882 (DAB)
ORDER

NEW YORK STATE OFFICE OF CHILDREN
AND FAMILY SERVICES and ROGER RASCO,

Defendants.

------------------------------------x

DEBORAH A. BATTS, United States District Judge.

On March 23, 2012, United States Magistrate Judge George A.
Yanthis issued a Report and Recommendation ("Report"),
recommending that the Motion to Dismiss of the New York State
Office of Children and Family Services ("Defendant") be GRANTED
as to Plaintiff's New York State Human Rights Law ("HRL") claims
and DENIED as to Plaintiff's Title VII claims.

(Report at 17.)

For the reasons set forth below, after conducting a de novo
review of Parties' Objections where appropriate, the Report of
Magistrate Judge Yanthis dated March 23, 2012 shall be modified
as to the proper pleading standard for pro se plaintiffs.
11).

(Id at

The Report shall be adopted as to all other findings and

recommendations.

Accordingly, the Court GRANTS Defendant's

Motion to Dismiss Plaintiff's HRL claims and DENIES Defendant's
Motion to Dismiss Plaintiff's Title VII claims.

I.

Objections to the Report and Recommendation

"Within fourteen days after being served with a copy (of a
Magistrate Judge's Report and Recommendation], a party may serve
and file specific written objections to the proposed findings and
recommendations."
636(b) (1) (C).

Fed. R. Civ. P. 72(b) (2); accord 28 U.S.C. §

The Court may adopt those portions of the Report

to which no timely Objection has been made, as long as there is
no clear error on the face of the record.

DiPilato v. 7-Eleven,

Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009).

A district court

must review de novo "those portions of the report or specified
proposed findings or recommendations to which objection is made."
28 U.S.C.

§

636(b) (1).

However, "to the extent that the party

makes only conclusory or general arguments, or simply reiterates
the original arguments, the Court will review the Report strictly
for clear error."

DiPilato, 662 F. Supp. 2d at 339 (internal

quotation marks and ellipses omitted); see also Ortiz v. Barkley,
558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008)

("Reviewing courts

should review a report and recommendation for clear error where
objections are merely perfunctory responses, argued in an attempt
to engage the district court in a rehashing of the same arguments
2

set forth in the original petition.")

(internal quotation marks

omitted). After conducting the appropriate levels of review, the
Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the Magistrate Judge.
U.S.C.

§

28

636(b) (1).

Plaintiff and Defendant have each filed timely Objections to
Judge Yanthis's Report.

Plaintiff objects to the Report's

findings and recommendations regarding his HRL claims.

Defendant

objects to the Reports's findings and recommendations regarding
Plaintiff's Title VII claims.

The Court takes these arguments in

turn here, applying a de novo review as appropriate to those
portions of the Report addressed by specific Objections of the
Parties.

II.

Plaintiff's Objections

Plaintiff objects to the Report's recommendation that
Defendant's Motion to Dismiss be granted as to his HRL claims.
(See Pl. Obj. at 2.)

Judge Yanthis bases his recommendation on

jurisdictional grounds, finding that the Eleventh Amendment and
the HRL's election-of-remedies provision bar Plaintiff from
bringing his HRL claims in federal court.

(See Report at 9-11.)

Objections of pro se parties are Ugenerally accorded
leniency and should be construed to raise the strongest arguments
3

that they suggest."

Howell v. Port Chester Police Station, No.

09 Civ. 1651(CS}, 2010 WL 930981, at *1 (S.D.N.Y. Mar. 15, 2010)
(internal quotation marks omitted).

"Nonetheless, even a pro se

party's objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a second
bite at the apple by simply re1itigating a prior argument."

Id.

(internal quotation marks omitted).
Although Plaintiff wholeheartedly disagrees with the
Report's recommendation that his HRL claims be dismissed, his
Objections do not specifically address Judge Yanthis's finding
that the Court lacks subject matter jurisdiction.
at 2.)

(See Pl. Obj.

Instead, they provide additional examples of Defendant's

allegedly discriminatory employment practices.
Plaintiff's Objections are therefore insufficient to trigger de
novo review of the Report's findings and recommendations as to
- the HRL claims, and the Court reviews this portion of the Report
for clear error.

The Court, having found none, adopts the

Report's findings and recommendations regarding Plaintiff's HRL
claims.

The Defendant's Motion to Dismiss Plaintiff's HRL claims

for lack of subject matter jurisdiction is granted.

III.

Defendant's Objections
4

A.

Pleading Standard for Title VII Claims of Pro Se
Plaintiffs

Plaintiff claims that Defendant violated Title VII by
discriminating on the basis of Plaintiff's race and sex and
retaliating against Plaintiff after he filed formal complaints
with Defendant's Office of Equal Opportunity and Diversity
Development ("EODD") and the New York State Division of Human
Rights ("NYSDHR").

In his Report, Judge Yanthis recommends that

the Court deny Defendant's Motion to Dismiss as to Plaintiff's
Title VII claims.

(Report at 17.)

Defendant argues in its Objections that Judge Yanthis
applies too liberal a standard of review in assessing the legal
sufficiency of Plaintiff's Complaint.
7.)

(See Def. Obj. at 3, 5,

Specifically, Defendant appears to object to Judge Yanthis's

finding that (1) to withstand a motion to dismiss, a Title VII
plaintiff need not plead facts sufficient to establish a prima
facie case of employment discrimination and retaliation, and (2)
the Court "should not dismiss a pro se complaint 'for failure to
state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.'11

(Report at 11-13 (quoting Hughes v.

Rowe, 449 U.S. 5, 10 (1980».)
Upon de novo review, the Court finds that to withstand a
5

motion to dismiss, Plaintiff is not required to plead facts
sufficient to establish a prima facie case.
has held that "[t]he prima facie case.
standard, not a pleading requirement."

The Supreme Court
is an evidentiary

Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 510 (2002); see also Boykin v. KeyCorp., 521
F.3d 202, 212

(2d Cir. 2008) (citing Swierkiewicz to hold that

Plaintiff need not establish prima facie case of discrimination
to withstand Motion to Dismiss); Langford v. Int'l Union of
Operating Eng'rs, Local 30, 765 F. Supp. 2d 486, 497 (S.D.N.Y.
2011)

(noting that Swierkiewicz applies to Title VII claims of

disparate treatment and retaliation).

At the pleading stage, a

plaintiff alleging discrimination in violation of Title VII must
provide facts that give the defendant "fair notice of what the
plaintiff's claim is and the grounds upon which it rests."
Swierkiewicz, 534 U.S. at 512.

"[O]ur charge is not to weigh the

evidence that might be presented at a trial but merely to
determine whether the complaint itself is legally sufficient."
Chosun Int'l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 327
(2d Cir. 2005)

(internal quotation marks omitted).

In addition,

the plaintiff must have pleaded "enough facts to state a claim to
relief that is plausible on its face."
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

"A claim has facial

plausibility," the Supreme Court has explained, "when the
6

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged."

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). "[A] plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do."

Twombly, 550 U.S. at 555 (internal quotation marks

omitted). "In keeping with these principles," the Supreme Court
stated, "[w]hile legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.

When

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief."

Iqbal, 556 U.S. at 679.

The Supreme Court decided Twombly and Iqbal after
Swierkiewicz, and a recent Second Circuit Summary Order notes
that whether Swierkiewicz remains good law after Twombly and
Iqbal is "somewhat of an open question in our circuit."

Hedges

v. Town of Madison, 456 Fed. App'x 22, 23 (2d Cir. 2012); see
also Schwab v. Smalls, 435 Fed. App'x 37, 40 (2d Cir. 2011)
(noting that "[q]uestions have been raised . . . as to
Swierkiewicz's continued viability in light of Twombly and Iqbal"
and pointing to a Third Circuit opinion finding that Twombly and
Iqbal repudiated part of Swierkiewicz).
7

However, the Circuit has

refrained from overturning Boykin, supra, or from otherwise
deciding the issue.

Instead, the Circuit has stated, U[A]t a

minimum, employment discrimination claims must meet the standard
of pleading set forth in Twombly and Iqbal, even if pleading a
prima facie case is not required."

Hedges, 456 Fed. App'x at 23.

Other judges within this district have reconciled Swierkiewicz,
Twombly, and Iqbal similarly.

See, e.g., Anderson v. Davis Polk

& Wardwell LLP, 850 F. Supp. 2d 392, 402 (S.D.N.Y. 2012)
(UReconciling Swierkiewicz, Twombly, and Iqbal, a complaint need
not establish a prima facie case of employment discrimination to
survive a Motion to Dismiss; however, the claim must be facially
plausible and must give fair notice to the defendants of the
basis for the claim.")

(internal quotation marks omitted);

Shamilov v. Human Res. Admin., No. 10 Civ. 8745(PKC), 2011 WL
6085550, at *3, 4 (S.D.N.Y. Dec. 6, 2011)

(UFor complaints

asserting claims of discrimination, the Igbal plausibility
standard applies in conjunction with the pleading standards set
forth in Swierkiewicz . . . . Accordingly, to overcome a Rule
12(b) (6) motion to dismiss in an employment discrimination case,
a complaint must give fair notice of the basis of plaintiff's
claims and the claims themselves must be facially plausible.");
Flores v. N.Y.C. Human Res. Admin., No. 10 Civ. 2407(RJH), 2011
WL 3611340, at *1 (S.D.N.Y. Aug. 16, 2011)

8

("Employment

discrimination complaints need not contain facts establishing
prima facie cases of employment discrimination; instead such
complaints must simply comply with Federal Rule of Civil
Procedure 8(a) {2} and put the defendant on fair notice of what
the plaintiff's claim is and the grounds upon which it rests.");
Jackson v. NYS Dep't of Labor, 709 F. Supp. 2d 218, 223-24
(S.D.N.Y. 2010) ("In the context of a discrimination claim, the
Iqbal plausibility standard applies in conjunction with
employment discrimination pleading standards.

Employment

discrimination claims need not contain specific facts
establishing a prima facie case of discrimination.")

(internal

quotation marks omitted), appeal dismissed for lack of appellate
jurisdiction, 431 Fed. App'x 21 (2d Cir. 2011).
Upon consideration of the Second Circuit's approach toward
the Title VII pleading standard and that of other judges within
this district, this Court adopts Judge Yanthis's finding that
Plaintiff need not establish a prima facie case in order to
survive Defendant's Motion to Dismiss.

It is sufficient that

Plaintiff's Complaint give fair notice of the basis of his
claims, and that his claims be facially plausible under Twombly
and Iqbal.
However, on de novo review of Defendant's related Objection,
the Court modifies Judge Yanthis's findings regarding the proper
9

pleading standard for pro se complaints.

The Report incorrectly

states that a "court should not dismiss a pro se complaint 'for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.'"
449 U.S. at 10).)

(Report at 11 (quoting Hughes,

Rather, "the 'plausibility' standard

articulated in Twombly and Iqbal applies to the pleadings of pro
se plaintiffs as well as to those of represented litigants."
Thomas v. Calero, 824 F. Supp. 2d 488, 497

(S.D.N.Y. 2011).

Even

in the wake of Iqbal and Twombly, however, "we remain obligated
to construe a pro se complaint liberally."
F.3d 66, 72

(2d Cir. 2009).

Harris v. Mills, 572

A pro se complaint, "however

inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers."

Boykin, 521 F.3d at 214

(quoting Erickson v. Pardus, 551 U.S. 89, 94

(2007».

The court

should "interpret the complaint liberally to raise the strongest
claims that the allegations suggest."
Corp., 785 F. Supp. 2d 269, 282

Grimes v. Fremont Gen.

(S.D.N.Y. 2011).

The Court thus

modifies Judge Yanthis's findings to reflect the correct standard
for pro se complaints.

B. Plaintiff's Title VII Discrimination Claim

Defendant makes two Objections to the Report's findings

10

regarding Plaintiff's Title VII discrimination claim:

(1) several

actions Plaintiff claims Defendant undertook are not "adverse
employment actions"; and (2) Plaintiff fails to plead facts that
raise an inference of discrimination.

1. Adverse Employment Actions
Defendant argues that Judge Yanthis should have determined
whether three of the five alleged employment actions were
adverse.

(Def. Obj. at 7-9.)

The Court, upon de novo review,

adopts Judge Yanthis's finding that it is unnecessary to decide
at the pleading stage whether these three particular allegations
constitute adverse employment actions.

To survive a motion to

dismiss, a plaintiff "must allege facts from which a trier of
fact could plausibly conclude that he suffered an adverse
employment action because of discrimination on the basis of the
plaintiff's protected status."

Williams v. City of New York, No.

11 Civ. 9679(CM), 2012 WL 3245448, at *4

(S.D.N.Y. Aug. 8, 2012)

(citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)
curiam».

(per

However, at the pleading stage, a court need not

determine that every fact a plaintiff alleges amounts to an
adverse employment action.
"mistake[s]

Requesting this level of analysis

[Plaintiff's] burden at this stage in the litigation"

because "whether certain employment actions qualify as adverse
11

for the purposes of Title VII, is a fact-specific inquiry .
to be resolved at a later stage of litigation."

Flores, 2011 WL

3611340, at *8 (internal quotation marks omitted).
The two cases Defendant cites are not to the contrary; they
examine the adverseness of the alleged employment actions to
determine whether a jury could plausibly conclude that Plaintiffs
suffered any adverse employment action because of discrimination.
See Salaam v. Syracuse Model Neighborhood Facility, No. 11 civ.
948 (MAD) , 2012 WL 893487, at *5 (N.D.N.Y. Mar. 15, 2012) (finding
that Plaintiff failed to allege plausibly any facts indicating
that an adverse employment action had resulted from
discrimination); Roff v. Low Surgical & Medical Supply, Inc., No.
03 Civ. 3655 (SJF) , 2004 WL 5544995, at *4 (E.D.N.Y. May 11, 2004)
(finding that Plaintiff failed to allege plausibly any facts
constituting an adverse employment action).

In contrast, at

least one of Plaintiff's allegations - his suspension without pay
- plausibly constitutes an adverse employment action.

See, e.g.,

Lovejoy-Wilson v. NaCO Motor Fuel, Inc., 263 F.3d 208, 223
Cir. 2001)

(2d

("[S]uspension without pay is sufficient to constitute

an adverse employment action."); Satterfield v. United Parcel
Serv., Inc., No. 00 Civ. 7190 (MHD) , 2003 WL 22251314, at *10
(S.D.N.Y. Sept. 30, 2003)

("[Plaintiff's] one-day suspension

. arguably does fall within the Second Circuit's definition of
12

'materially adverse' action since plaintiff presumably was forced
to forego one day's worth of wages.")i Page v. Conn. Dep't of
Pub. Safety, Div. of State Police, 185 F. Supp. 2d 149, 157 (D.
Conn. 2002)

("In this Circuit, suspension without pay constitutes

adverse employment action.").

Because Plaintiff has plausibly

alleged at least one adverse employment action, the Court finds
on de novo review that parsing Plaintiff's Complaint to determine
which of the other alleged employment actions are "adverse" is
best suited for later stages of the litigation.

2. Inference of Discrimination
Defendant next objects that the discussion of comparators in
Plaintiff's pleadings is insufficient to establish an inference
of discrimination.

(Def. Obj. at 4-6.)

Plaintiff, an African-American man, alleges that four
employees were similarly situated to him but treated more
favorably: three men who are not African-American and one
African-American woman.

Defendantis first Objection, reviewed de

novo here, is that because each person Plaintiff names is either
the same race or same gender as Plaintiff, each comparator is a
member of Plaintiff's protected class, and thus, no inference of
discrimination can arise.

(Id. at 4-5.)

Defendant cites no

authority for the proposition that to raise an inference of
13

discrimination, Plaintiff must, as a matter of law, find a non­
African-American, female comparator.
The Second Circuit has recognized that Ua plaintiff's
discrimination claims may not be defeated . . . based merely on
the fact that certain members of a protected class are not
subject to discrimination, while another subset is discriminated
against based on a protected characteristic shared by both
subsets."

Gorzynski v. Jetblue Airways Co., 596 F.3d 93, 109 (2d

Cir. 2010); see also Wolf v. Time Warner, Inc., No. 09 Civ.
6549 (RJS) , 2011 WL 856264, at *7 (S.D.N.Y. Mar. 3, 2011)

(holding

that Plaintiff sufficiently pleaded an inference of
discrimination on the bases of sex and sex-pIus-age where
comparators were men and younger women).

Thus, this Court will

not dismiss Plaintiff's claim that he was discriminated against
as an African-American man merely because his employer may not
have discriminated against African-American women or against men
who are not African-American.
The Court next reviews Defendant's Objection that Plaintiff
fails to allege any facts indicating that he was similarly
situated in all material respects to his comparators.
at 5-6.)

(Def. Obj.

This Objection repeats the same argument Defendant made

in its Motion to Dismiss.

(Mot. to Dismiss at 12.)

Arguments

that relitigate issues are entitled to review only for Uclear
14

error."

See IndyMac Bank, F.S.B. v. Nat'l Settlement Agency,

Inc., 07 civ. 6865 (LTS), 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3,
2008).

The Court, having found none, adopts Judge Yanthis's

finding that Plaintiff's allegations give Defendant fair notice
of his discrimination claim, which is facially plausible.
Defendant next argues that Plaintiff and his comparators
are, in fact, not similarly situated.

When deciding whether a

comparator is similarly situated, courts consider, inter alia,
uwhether the conduct [engaged in by Plaintiff and his comparator]
for which the employer imposed discipline was of comparable
seriousness."

Jenkins v. St. Lukes-Roosevelt Hosp. Ctr., No. 09

Civ. 12 (RMB) , 2009 WL 3682458, at *7

(S.D.N.Y. Oct. 29, 2009)

(internal quotation marks omitted).

The cases Defendant cites to

show that Plaintiff's conduct was not of comparable seriousness
to that of his comparators are inapposite.

In Jenkins, the

comparator had not committed the same violation as the Plaintiff.
Id. at *8.

Here, Plaintiff alleges and Defendant concedes that

Plaintiff and his comparators violated the same workplace policy
- failing to make phone calls at the proper times.
Obj. at 6.)

In Anderson, the Uplaintiff hard]

(See Def.

failed to allege

in even conclusory fashion that he and (the comparator] were
similarly-situated employees."

850 F. Supp. 2d at 407.

In

contrast, Plaintiff names four people not in his protected class
15

who he alleges were "in the same situation" and committed the
same violation, but were "treated more favorably."
Compl. at 13.)

(See Pl.

"[Oln a motion to dismiss, these allegations

satisfy the fourth prong of the prima facie case, i.e., that the
action taken against [Plaintiff] may be construed as having
occurred under circumstances giving rise to an inference of
discrimination.

II

Morales v. Long Island R.R. Co., No. 09 Civ.

8714(HB), 2010 WL 1948606, at *4 (S.D.N.Y. May 14, 2010)
(internal quotation marks omitted)

(holding that Plaintiff was

similarly situated to comparators who had also allegedly been
caught sleeping on the job).

Therefore, the Court adopts all of

Judge Yanthis's findings as to Plaintiff's use of comparators.

C. Defendant's Objections to Plaintiff's Retaliation
Claim
Defendant objects to Judge Yanthis's finding that
Plaintiff's retaliation claim is facially plausible, arguing that
Plaintiff fails to raise an inference of retaliation because (1)
four months elapsed between Plaintiff's protected activity and
the alleged retaliation, and (2) Plaintiff was subject to
disciplinary action before, during, and after engaging in
protected activity.

(Def. Obj. at 10-12.)

These Objections,

however, merely repeat the arguments Defendant made in its Motion
16

to Dismiss (see Mot. to Dismiss at 16-18), and therefore are
entitled only to "clear error" review.
4810043, at *1.

See IndyMac Bank, 2008 WL

Having found no clear error, the Court adopts

Judge Yanthis's finding that Plaintiff's pleadings allege a
plausible retaliation claim.

IV. Portions of the Report to Which Neither Party Has
Objected
The Court may apply a "clear error" standard of review to
those portions of the Report to which neither Party has objected.
DiPilato, 662 F. Supp. 2d at 339.

Having found no clear error,

the Court adopts Judge Yanthis's findings as to those parts of
the Report to which no timely Objections have been made.

V. Conclusion
Having conducted the appropriate levels of review of the
Report and Recommendation of United States Magistrate Judge
George A. Yanthis dated March 23, 2012, this Court MODIFIES the
Report's legal findings pertaining to the proper pleading
standard for pro se plaintiffs.

(See Report at 11.)

The Court

APPROVES, ADOPTS, and RATIFIES the Report's factual recitations
(see id. at 1-8) and all remaining legal findings and
recommendations (see id. at 8-17).
17

Accordingly, Defendant's

Motion to Dismiss is GRANTED in part and DENIED in part.

SO ORDERED.

Dated:

New York, New York

Deborah A. Batts

United States District Judge

18