Holland v. City of New York et al

Filing 42

MEMORANDUM AND ORDER: The defendants' motion for judgment on the pleadings is granted in part and denied in part. The motion of the City of New York and DoITT to dismiss is GRANTED as to plaintiffs claims under Title VII, the ADEA, and the ADA, but DENIED as to plaintiff's claims under section 1981, section 1983, NYSHRL, and NYCHRL. Local 1549's motion to dismiss is GRANTED as to all of plaintiff's claims. Counsel for the City of New York and DoITT are directed to provide to plaintiff copies of all unreported cases cited herein. (Signed by Judge P. Kevin Castel on 12/15/2011) (ft)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
JOYCE F. HOLLAND,
Plaintiff,

10 Civ. 2525 (PKC) (RLE)

-againstMEMORANDUM
AND ORDER
CITY OF NEW YORK, DoITT, DC 37,
LOCAL 1549,
Defendants.
-----------------------------------------------------------x
P. KEVIN CASTEL, District Judge:
Plaintiff Joyce F. Holland, proceeding pro se, brings this employment
discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
as amended by the Civil Rights Act of 1991 (“Title VII”), the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 721 et seq. (“ADEA”), the Americans with Disabilities
Act, 42 U.S.C. § 12112 et seq. (“ADA”), the New York State Human Rights Law, N.Y. Exec. L.
§ 290 et seq. (“NYSHRL”), the New York City Human Rights Law, N.Y. City Admin. Code § 8101 et seq. (“NYCHRL”), and 42 U.S.C. §§ 1981 and 1983. Plaintiff alleges that her former
employer, the New York City Department of Information Technology and Telecommunications
(“DoITT”), unlawfully terminated her on the basis of race, gender, age, and disability. Plaintiff
also alleges that Local 1549 of District Council 37, American Federation of State, County, and
Municipal Employees, AFL-CIO (“Local 1549”)—the union that represented plaintiff—
breached its duty of fair representation by failing to fully investigate her discrimination claims
against DoITT.
In her Amended Complaint (“AC”), plaintiff names as defendants the City of
New York, DoITT, and Local 1549. (AC at 1–2.) The City, representing itself and the DoITT,

and Local 1549 have each moved for judgment on the pleadings under Rule 12(c), FED. R. CIV.
P. For the reasons set forth below, the defendants’ motion is granted in part and denied in part.
BACKGROUND
Plaintiff is an African-American female born in 1956 and blind in her left eye.
(AC at 3, 7.) Plaintiff began working for the City of New York as a call center operator for the
DoITT on October 5, 2005. (Id. at 5.) Plaintiff worked eight-hour shifts beginning at midnight.
As one of many operators in the call center, plaintiff received incoming customer service calls.
Plaintiff’s two immediate managers, Lorrie Yard-Smith and Keith Heerey, are both Caucasian.
The immediate managers report to two supervisors, who are female and of Latin descent. (Id.)
Plaintiff alleges that she was terminated as a call center operator on February 7,
2007. (Id.) In general, plaintiff describes the call center as feeling “very much like a
plantation.” (Id. at 6.) In detail, plaintiff alleges that approximately 80% of the operators at the
DoITT’s 311 call center were African-American women, the managers “primarily[]
Caucasian[],” and the supervisors “primarily Latino.” (Id.) Plaintiff further alleges that one of
her managers, Ms. Yard-Smith, “openly disgraced” the mostly African-American operators on
numerous occasions by “kicking open desk drawers” and labeling as insubordinate any AfricanAmerican operators who objected. (Id.)
In support of her claim of gender discrimination, plaintiff alleges that the male
call center employees “were sort of ‘given a pass’ and [were] treated differently” than the female
employees. (Id.) Plaintiff contends that the DoITT had a practice of favoring male employees in
granting overtime. Plaintiff describes an incident in which her request for overtime was denied,
whereas the requests of two of her co-workers—a white male and an African-American male—
were granted. (Id.)

2

In support of her claim of age discrimination, plaintiff alleges that on multiple
occasions, younger employees “were given a pass” for arriving late to work and that in two
specific instances, she observed “two young women . . . [who were] given a pass on being late.”
(Id.) Plaintiff attests that “on a number of occasions,” DoITT management “disrespected” and
“openly and clearly” disgraced older African-American female employees by criticizing their
skills as “inadequate.” (Id.) Lastly, plaintiff describes a specific instance in which a younger
African-American male employee received a promotion and then, in a supervisory role, would
stand over older African-American female employees “with a clear intent to discredit them.” (Id.
at 7.)
Plaintiff also alleges that the DoITT discriminated against her on the basis of her
disability, blindness in her left eye. (Id.) According to plaintiff, Ms. Yard-Smith frequently
called plaintiff into her office to discuss plaintiff’s infractions wherein Yard-Smith would inquire
about the condition of plaintiff’s disability. Plaintiff further alleges that she was denied all
requests for “copies [of] these write-ups” and that they were absent from her personnel folder.
(Id.)
Plaintiff worked at the DoITT until February 7, 2007 when, after missing
“approximately 4 to 5 days” or “about a week” of work due to surgery on her left eye, plaintiff
states she was “given a letter stating that [she] was terminated.” (Id.) According to plaintiff, the
DoITT terminated her because of her “medical absence” and that the City therefore “failed to
accommodate [her] disability.” (Id.)
In her Amended Complaint, plaintiff admits to never having discussed her
objections to any of the aforementioned discriminatory practices with anyone at DoITT because
she “felt [they] would fall on deaf ears” and for “fear that [she] would be terminated like so

3

many of the other older black women.” (Id. at 6, 7.) Instead, plaintiff consulted her local union
representative, Eddie Douglas. According to plaintiff, Mr. Douglas “never looked into” her
discrimination claims and merely advised her to “never be late.” (Id. at 6.)
Plaintiff commenced the present suit in February 2010, alleging discrimination
against the City of New York and the DoITT (“City Defendants”), and her union, Local 1549. In
an Order dated March 22, 2010, Chief Judge Preska granted plaintiff’s request to proceed in
forma pauperis and directed plaintiff to file an amended complaint “detailing whether she
exhausted her claims with the U.S. Equal Employment Opportunity Commission (“EEOC”) prior
to commencing her action. (Docket #3.) On May 21, 2010, plaintiff filed an Amended
Complaint with this Court alleging the discrimination claims described above. (Docket #4.)
LEGAL STANDARD
All defendants have moved for judgment on the pleadings pursuant to Rule 12(c),
FED. R. CIV. P. A motion for judgment on the pleadings under Rule 12(c) is reviewed under “the
same standard as that applicable to a motion under Rule 12(b)(6).” King v. Am. Airlines, Inc.,
284 F.3d 352, 356 (2d Cir. 2002) (quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.
1999)). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “‘Labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do,’” rather, a plaintiff must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Twombly, 550 U.S. at 555). In considering a Rule 12(b)(6) motion to dismiss, all nonconclusory factual allegations are accepted as true, see id. at 1949–50, and all reasonable

4

inferences are drawn in plaintiff’s favor. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007) (per curiam).
For complaints alleging discrimination, the Iqbal plausibility standard applies in
conjunction with the pleading standards set forth in Swierkiewicz v. Sorema, N.A., 534 U.S. 506
(2002). See Twombly, 550 U.S. at 547 (“This analysis does not run counter to Swierkiewicz . . .
. Here, the Court is not requiring heightened fact pleading of specifics, but only enough facts to
state a claim to relief that is plausible on its face.”); Arista Records LLC v. Doe, 604 F.3d 110,
119–21 (2d Cir. 2010) (finding Swierkiewicz, Twombly, and Iqbal in agreement). Indeed,
Swierkiewicz “applies with equal force to any claim . . . that the McDonnell Douglas framework
covers” and retains its “vitality” in the wake of the Court’s decisions in Twombly and Iqbal. See
Boykin v. KeyCorp, 521 F.3d 202, 213–14 (2d Cir. 2008)).
At the pleading stage, Swierkiewicz teaches that a plaintiff is not required to come
forth with allegations sufficient to make a prima facie case of employment discrimination or to
satisfy the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). Rather, “a complaint must
include . . . a plain statement of the claim . . . [that] give[s] the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal
quotations omitted). Accordingly, to overcome a motion to dismiss in an employment
discrimination action, a complaint must give fair notice of the basis of plaintiff’s claims and the
claims themselves must be facially plausible.
In this action, plaintiff proceeds pro se. Courts are to review pro se complaints
under a more lenient standard than that applied to “formal pleadings drafted by lawyers.” Haines
v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Accordingly, the Court construes plaintiff’s

5

submissions liberally and interprets them “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (emphasis in original)
(internal quotations omitted). Although this applies with particular force when a plaintiff alleges
civil rights violations, McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), the Court need
not accept as true plaintiff’s “conclusions of law or unwarranted deductions of fact.” First
Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).
In ruling on a motion for judgment on the pleadings under Rule 12(c), “a district
court may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court may also consider any document integral to
the complaint upon which it “relies heavily.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153
(2d Cir. 2002). Lastly, this Court may consider matters of public record for which it make take
judicial notice. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
DISCUSSION
Plaintiff alleges discrimination under Title VII, ADEA, ADA, sections 1981 and
1983, and the NYSHRL and NYCHRL. (AC at 1–2, 5.) Plaintiff also appears to allege that
Local 1549 breached its duty of fair representation by failing to “look[] into” plaintiff’s
grievances with DoITT management prior to her termination. (Id. at 6.)
I.

Defendants’ Motion to Dismiss Plaintiff’s Claims Under Title VII, ADEA, and
ADA for Failing to Exhaust Administrative Remedies Is Granted
Both the City Defendants and Local 1549 move to dismiss plaintiff’s claims under

Title VII, the ADEA, and the ADA for plaintiff’s failure to exhaust her administrative remedies.
A plaintiff claiming discrimination under Title VII must exhaust his or her claim prior to
bringing an action in federal court. 42 U.S.C. § 2000e-5(b). To exhaust a claim, a plaintiff must
6

bring his charges of discrimination with the U.S. Equal Employment Opportunity Commission
(“EEOC”) or a relevant state agency authorized to entertain private discrimination claims.
McPherson v. N.Y. City Dep’t of Educ., 457 F.3d 211, 213 (2d Cir. 2006) (citing 42 U.S.C. §
2000e-5(f)(1)) (“Under Title VII and the ADEA, a plaintiff can sue in federal court only after
filing timely charges with the EEOC.”). A private Title VII plaintiff must also first receive a
“right-to-sue” letter from the EEOC prior to instituting suit in federal court. Id.
The exhaustion requirement also applies to charges of age discrimination under
the ADEA. Holowecki v. Fed. Express Corp., 440 F.3d 558, 562 (2d Cir. 2006). Unlike a Title
VII claim, however, a plaintiff need not receive a right-to-sue letter prior to bringing a federal
action provided the charge “was pending before the EEOC for at least 60 days.” McPherson,
457 F.3d at 215. Just as with a claim under Title VII or the ADEA, a precondition to filing an
ADA claim in federal court is the exhaustion of administrative remedies and the timely filing of
a complaint with the EEOC. See Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir. 2004); Harris
v. Beth Israel Med. Ctr., 2009 WL 612498, at *8 (S.D.N.Y. Mar. 4, 2009) (“ADA claims cannot
be brought until a plaintiff exhausts administrative remedies.”). A plaintiff’s failure to timely
exhaust her discrimination claims before the EEOC or related state agency is grounds for
dismissal. See, e.g., Edmundson, 392 F.3d at 503 (affirming dismissal of pro se ADA claim
where there was “no evidence in the record that [plaintiff] exhausted her administrative remedies
prior to filing her ADA claim in federal court”); Mauro v. N.Y. City Transit Auth., 2010 WL
1424009, at *2–*3 (S.D.N.Y. Apr. 9, 2010) (granting motion to dismiss Title VII and ADEA
discrimination claims “in [their] entirety” where pro se plaintiff “failed to exhaust administrative
remedies”).

7

Plaintiff’s claims under Title VII, the ADEA, and the ADA are dismissed for
failure to exhaust her administrative remedies with the EEOC or an appropriate New York state
agency. Plaintiff has produced no evidence that she filed charges with the EEOC or any New
York state agency authorized to hear discrimination claims. In response to a preprinted question
contained in her Amended Complaint, provided by the Court’s Pro Se Office, plaintiff
acknowledges that the EEOC “has not issued a Notice of Right to Sue letter.” (AC at 4.)
Moreover, after receipt of her initial complaint, this Court directed plaintiff to amend her
complaint stating whether she had exhausted her claims with the EEOC and, if so, to attach a
copy of her Notice of Right to Sue letter. (Docket #3.) Plaintiff has not so stated, nor has she
attached any correspondence from the EEOC; rather, plaintiff admits in her Amended Complaint
that the deadline to file charges had passed by the time she “finally contacted the EEOC.” (AC
at 5.)
As plaintiff presents no evidence in her Amended Complaint that she ever filed a
disability-related discrimination claim in federal court or before a relevant state agency—and
explicitly admits to having missed the deadline before “finally contact[ing] the EEOC” (AC at
4)—both defendants’ motions for judgment on the pleadings as to plaintiff’s claims under Title
VII, the ADEA, and the ADA are granted. See McPherson, 457 F.3d at 213. Plaintiff’s claims
under these statutes are therefore dismissed as against both the City Defendants and Local 1549.
II.

Defendants’ Motion to Dismiss Plaintiff’s Claims Under Section 1981, Section
1983, NYSHRL, and NYCHRL as Untimely Is Denied
Plaintiff also alleges discrimination under sections 1981 and 1983, and the

NYSHRL and NYCHRL. (AC at 1, 5.) Both the City Defendants and Local 1549 move to
dismiss these claims as barred by the applicable statute of limitations.

8

“The statute of limitations applicable to claims brought under §§ 1981 and 1983
in New York is three years.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004).
Although the New York state statute of limitations is used to compute time, “[f]ederal law
determines when a federal claim accrues.” Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994).
Under federal law, a cause of action accrues “when the plaintiff knows or has reason to know of
the injury which is the basis of his action.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.
2002). In employment discrimination cases, a claim arises “on the date the employee learns of
the employer’s discriminatory conduct.” Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d
Cir. 2000).
As with claims under sections 1981 and 1983, claims under the NYSHRL and
NYCHRL are each subject to a three-year statute of limitations. See Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 765 (2d Cir. 2002); Butler v. N.Y. Health & Racquet Club, 768 F. Supp. 2d
516, 536 n.12 (S.D.N.Y. 2011) (“The statute of limitations is three years for claims brought
under both the NYSHRL and the NYCHRL.”) (citing N.Y. C.P.L.R. § 214(2); N.Y. City Admin.
§ Code 805-2(d)). As discussed above, “the timeliness of a discrimination claim is measured
from the date the claimant receives notice of the allegedly discriminatory decision.” Morse v.
Univ. of Vt., 973 F.3d 122, 125 (2d Cir. 1992). Accordingly, this Court considers the timeliness
of plaintiff’s claims under sections 1981 and 1983 and the NYSHRL and NYCHRL together.
The last discrete act of discrimination plaintiff alleges was the termination of her
employment on February 7, 2007. (AC at 7.) Therefore, plaintiff’s discrimination claims as they
relate to her termination are timely only if she properly commenced this action on or before
February 7, 2010. As will be discussed, the complaint was time-stamped received by the Court’s
night depository on February 5, 2010, but was not received by the Court’s Pro Se Office until

9

February 8, 2010. The defendants urge that the receipt by the Pro Se Office controls and that
plaintiff’s action is thus untimely.
In this action, plaintiff proceeds pro se and in forma pauperis. “At least where in
forma pauperis relief is granted, the action should be treated as timely, provided the complaint
was received by the clerk’s office prior to the expiration of the limitations period.” Toliver v.
Sullivan Cnty., 841 F.2d 41, 42 (2d Cir. 1988). “Where a pro se plaintiff submits her complaint
to the Pro Se Office, and the complaint is not filed until a later date, the date that [the plaintiff]
filed his complaint with the Pro Se Office . . . is the relevant date for purposes of determining
whether [her] claims are time-barred.” Jackson v. N.Y. State Dep’t of Labor, 709 F. Supp. 2d
218, 228–29 n.5 (S.D.N.Y. 2010) (internal quotations omitted). Interpreting Toliver, courts in
this district have considered pro se actions “filed” on the date the Pro Se Office receives the
complaint and accompanying request to proceed in forma pauperis, if applicable. See, e.g.,
Howard v. MTA Metro-North Commuter R.R., 2011 WL 5335390, at *7 (S.D.N.Y. Nov. 7,
2011) (“[T]he date to determine the timeliness of a complaint is the date the pro se office
received the complaint . . . .”); Smith v. St. Luke’s Roosevelt Hosp., 2009 WL 2447754, at *11
(S.D.N.Y. Aug. 11, 2009) (“The law is clear in this Circuit that a complaint is deemed filed for
statute of limitations and similar purposes when received by the Court’s Pro Se Office.” (internal
quotations omitted)).
Plaintiff’s original complaint and request to proceed in forma pauperis (“IFP
request”) are stamped “RECEIVED” by “U.S. DISTRICT COURT, S.D.N.Y.” on February 5,
2010 at 5:51 PM and 5:59 PM, respectively. (Docket #2; Docket #41 at 14, 15.) However, the
documents were not stamped “RECEIVED” by this Court’s Pro Se Office until February 8,
2010—three days later, after the expiration of the three-year limitations period. (AC at 10.)

10

Citing to this Court’s Manual for pro se litigants—which states the normal business hours of the
Pro Se Office as between 8:30 AM and 5:00 PM—the defendants contend that plaintiff’s action
is untimely because the Pro Se Office of this Court did not officially “receive” plaintiff’s
complaint and IFP request until the morning of February 8. (City Defs.’ Mem. in Further
Support at 2–3; Union Defs.’ Mem. in Further Support at 4.)
This Court considers plaintiff’s complaint filed as of February 5, 2010. Local
Civil Rule 1.2 provides in pertinent part: “After regular business hours, papers for the District
Court may only be deposited in the night depository. Such papers will be considered as having
been filed in the District Court as of the date stamped thereon, which shall be deemed
presumptively correct.” Id. It is undisputed that plaintiff delivered her complaint to this Court’s
night depository on the evening of February 5 and that her complaint and IFP request were
stamped “RECEIVED” at 5:51 and 5:59 that evening. (Docket #2; Docket #41 at 14, 15.) Local
Civil Rule 1.2 commands that all “papers” are to be considered filed on the date stamped
thereon. Expressly or otherwise, this rule does not distinguish between complaints, papers
purporting to commence an action, motion papers, or any other type of submission.
The Second Circuit’s holding in Toliver supports this Court’s conclusion. The
court in Toliver held that the date a pro se complaint and IFP request should be considered
“filed” is not the date such documents are stamped “filed” on the docket sheet, but when they are
actually received by the Court. Id. at 42. That the complaint in Toliver was stamped as
“received” by the Pro Se Office on the same day plaintiff delivered his complaint does not
require the conclusion that a court does not “receive” a pro se complaint until the Pro Se Office
literally stamps it as such. Indeed, neither Toliver nor any case cited by the defendants presents
the situation where plaintiff’s commencing papers were stamped “received” by the Court’s after-

11

hours depository, but not stamped as “received” by the Pro Se Office until some period after the
relevant limitations period had lapsed. See also Ocasio v. Fashion Institute of Tech., 9 Fed.
Appx. 66 (2d Cir. 2001) (“Ocasio delivered his motion to proceed in forma pauperis, along with
the first complaint, to the district court on May 13, 1995, thereby tolling the statute of limitations
with two days to spare.” (citing Toliver, 841 F.2d at 42)). The Toliver court’s announcement of
a broad prophylactic instruction advising district courts not to allow receipt and filing procedures
to “work to [a plaintiff]’s disadvantage” is hardly served by dismissing plaintiff’s complaint on
the basis that its RECEIVED stamp came from one office but not the other. See id. (“This delay
[between plaintiff’s delivery of complaint and its filing by Pro Se Office] should not work to
[his] disadvantage.”).1
Lastly, to the extent that there exists doubt about whether receipt of a pro se
complaint requires a stamp by the Court’s Pro Se Office—as opposed to physical receipt
reflected via depository with the Clerk’s Office’s night depository—defendants’ motion to
dismiss plaintiff’s claims as untimely should be decided in plaintiff’s favor. Ortiz v. Cornetta,
867 F.2d 146 (2d Cir. 1989) (reversing Rule 12(b)(6) dismissal of pro se complaint where “there
was some doubt as to whether the complaint was actually first received by the pro se office on
June 26, 1987, or whether it first arrived sometime prior to . . . the date that the statute of
limitations expired”). “This doubt is all that is necessary to withstand a motion to dismiss under
[R]ule 12(b)(6).” Id. (citing Egelston v. State Univ. Coll., 535 F.2d 752, 754 (2d Cir. 1976)
(holding a Rule 12(b)(6) dismissal improper unless it “appears beyond doubt” that plaintiff’s
claim is barred by applicable statute of limitations).

1

Chief Judge Preska’s Order dated March 22, 2010 noted that plaintiff’s initial complaint “was received” by the Pro
Se Office on February 8, 2010. (Docket #3.) This statement is correct and does not foreclose this Court’s
conclusion that plaintiff’s complaint was timely filed with the Court on February 5, 2010.

12

Accordingly, all defendants’ motions to dismiss plaintiff’s claims under sections
1981 and 1983 and the NYSHRL and NYCHRL as untimely are denied.
III.

Local 1549’s Motion to Dismiss Plaintiff’s Discrimination Claims for Failure to
State a Claim Is Granted
Alternatively, Local 1549 moves to dismiss plaintiff’s discrimination claims for

failure to state a claim upon which relief can be granted. (Union Defs.’ Mem. at 8–10.) As
plaintiff’s claims under Title VII, the ADEA, and the ADA are dismissed for failure to exhaust
her administrative remedies, this Court considers Local 1549’s argument only as it relates to
plaintiff’s claims under sections 1981 and 1983, and the NYSHRL and NYCHRL.
Section 1981 provides that “[a]ll persons within the jurisdiction of the United
States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white
citizens.” 42 U.S.C. § 1981. Section 1981 thus proscribes discrimination on the basis of race.
Oneida v. Cnty. of Patterson, 375 F.2d 206, 224 (2d Cir. 2004). The phrase “‘make and enforce
contracts’ includes the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.”
Lauture v. Int’l Bus. Machs. Corp., 216 F.3d 258, 260–61 (2d Cir. 2000) (emphasis in original).
“To establish a § 1981 claim, a plaintiff . . . must show: (1) that [she] is a member of a racial
minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) that the
discrimination concerned one or more of the activities enumerated in § 1981.” Id. at 261
(internal citation omitted).
Employment discrimination claims under the NYSHRL are construed pursuant to
the same standards at its federal counterparts, including section 1981. See Ruiz v. Cnty. of
Rockland, 609 F.3d 486, 491–92 (2d Cir. 2010). When an issue of statutory construction arises,
the NYCHRL is to be construed more liberally than federal standards and the NYSHRL. See
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Williams v. N. Y. City Housing Auth., 61 A.D.3d 62, 66–67 (1st Dep’t 2009). At this stage,
plaintiff is not required to state a prima facie case of discrimination, but merely to present
facially plausible claims that give the defendant fair notice of the basis of those claims and the
grounds upon which they rest. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007).
Construed generously, plaintiff fails to state a facially plausible discrimination
claim against Local 1549. Plaintiff’s allegation consists only that her union representative, Eddie
Douglas, “never looked into” DoITT’s alleged discrimination and merely advised her only to
never be late.” (AC at 6.) Nowhere does plaintiff allege any facts suggesting: that Mr. Douglas
or any other representative or employee of Local 1549 acted with discriminatory intent toward
plaintiff; the basis of any possible discriminatory animus by the union; that the union was
involved in the City’s decision to terminate plaintiff or otherwise caused her injury; or that the
union’s failure to have a “sit down with management” contributed to the City’s decision to
terminate plaintiff. (Id.)
To the extent that plaintiff seeks to assert her section 1983 claim against the Local
1549, such a claim is dismissed. Section 1983 is “not a source of substantive rights . . . . but
merely provides a method for vindicating federal rights conferred elsewhere.” Id. (internal
citations and quotations omitted). Oneida, 375 F.3d at 225. Because plaintiff’s potential
discrimination claims against Local 1549 depend upon the existence of independent violations of
the Constitution or federal law—and as this Court has found that none have been stated—
plaintiff’s section 1983 claim against Local 1549 is dismissed. See Segal v. City of N.Y., 459
F.3d 207, 219 (2d Cir. 2006) (affirming dismissal of 1983 claim where district court “properly
found no underlying constitutional violation”).2

2

As plaintiff has failed to state a discrimination claim under applicable federal or state law, it is unnecessary to
determine whether Local 1549 was acting under “color of state law” or otherwise conspired with DoITT or the City

14

Accordingly, plaintiff’s discrimination claims against Local 1549 under sections
1981 and 1983 and the NYSHRL and NYCHRL are dismissed.
IV.

Plaintiff’s Retaliation Claim Against Both Defendants Is Dismissed
Plaintiff also brings a retaliation claim, which this Court construes as asserted

against both the City Defendants and Local 1549. (AD at 3.) “‘[T]o establish a prima facie case
of retaliation, an employee must show [1] participation in a protected activity known to the
defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection
between the protected activity and the adverse employment action.’” Richardson v. Comm’n on
Human Rights & Opportunities, 532 F.3d 114, 123 (2d Cir. 2008) (quoting Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 769 (2d Cir.1998)), petition for cert. filed, 77 U.S.L.W. 3563 (U.S.
Jan. 26, 2009). At this stage, plaintiff need not establish a prima facie case of discrimination, but
must nonetheless allege evidence stating a plausible claim of retaliation. Boykin v. KeyCorp,
521 F.3d 202, 213–14 (2d Cir. 2008). As plaintiff failed to exhaust her administrative remedies
for her claims under Title VII, the ADEA, and the ADA, I consider plaintiff’s retaliation claim
only under section 1981, NYSHRL, and NYCHRL.
Plaintiff’s retaliation claim must be dismissed for failing to plausibly allege that
she engaged in a protected activity. A protected activity is an activity taken in good faith to
protest or oppose a prohibited practice under any of the relevant anti-discrimination statutes. See
Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 210 (2d Cir. 2006) (quoting
McMenemy, 241 F.3d at 285). The protected activity must put the employer “on notice” of the
aggrieved employee’s claims of discrimination. See, e.g., Morrow v. Metro. Transit Auth., 2009
WL 1286208, at *8 (S.D.N.Y. May 8, 2009) (dismissing retaliation claim where plaintiff only

of New York in terminating plaintiff. See Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (noting
that labor unions “generally are not state actors” absent additional evidence).

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“alluded” to discrimination in EEOC charge and never complained of discrimination to his
employer). “[G]eneral corporate knowledge that the plaintiff has engaged in protected activity”
is sufficient. Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007) (internal citation omitted).
Here, it is undisputed that plaintiff never filed a complaint with the EEOC. (AC
at 5.) Moreover, nowhere in plaintiff’s Amended Complaint does she allege that she ever
brought charges before the New York State Division of Human Rights or relevant state agency,
or that she ever complained to any of her managers or supervisors with the DoITT about its
discriminatory practices. Indeed, plaintiff admits that she “did not bring these incidents [of
alleged discrimination] to upper-level management” because she “felt [they] would fall on deaf
ears.” (Id. at 6.) As the plaintiff does not plausibly demonstrate she ever engaged in a protected
activity in opposing the DoITT’s allege discriminatory practices, her retaliation claim against the
City Defendants is dismissed. Morrow, 2009 WL 1286208, at *8 (dismissing retaliation claim
where employee sent two letters to corporate president, neither of which complained of
discrimination).
To the extent that plaintiff also alleges retaliation against Local 1549, this claim
must be similarly dismissed. Plaintiff claims she complained of DoITT’s discrimination not to
DoITT, but to her union representative, Eddie Douglas, who “never looked into [plaintiff’s]
grievances.” (AC at 6.) Even were this Court to construe plaintiff’s discussions with Douglas as
protected activity under any relevant statute, plaintiff does not present plausible allegations that
her employer, DoITT, was ever put on notice of her complaints to Douglas, that the union ever
took an adverse employment action against her, or that there was any causal connection between
those discussions and plaintiff’s February 7, 2007 termination. See, e.g., Jackson v. N.Y. State
Dep’t of Labor, 709 F. Supp. 2d 218, 228 (S.D.N.Y. 2010) (dismissing retaliation claim where

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plaintiff failed to allege facts that plausibly suggested an adverse employment action or causal
connection). Accordingly, any retaliation claim against Local 1549 must also be dismissed.
V.

Plaintiff’s Claim for Breach of the Duty of Fair Representation Against Local
1549 Is Dismissed
Construed generously, plaintiff’s Amended Complaint appears to allege that the

Union defendants breached their duty of fair representation toward plaintiff by not adequately
investigating plaintiff’s allegations of discrimination toward the DoITT. (AC at 6.) To the
extent that plaintiff alleges a breach of the duty of fair representation by Local 1549, her claim is
dismissed.
“Under New York state law, a claim against a union for violating the duty of fair
representation is subject to a four-month statute of limitations.” Williams v. City Housing Auth.,
458 F.3d 67, 69 (2d Cir. 2006) (citing N.Y. C.P.L.R. § 217(2)(a)). N.Y. C.P.L.R. 217(2)(a)
provides, in pertinent part, that a plaintiff bringing such a claim must do so within four months of
when she “knew or should have known that the breach has occurred” or the date she “suffer[ed]
actual harm, whichever is later.” Id. As discussed above, plaintiff initially filed her complaint in
this action on February 5, 2010. Plaintiff alleges that she was terminated on February 7, 2007,
and her discussions with Eddie Douglas purportedly occurred sometime prior to her termination.3
Plaintiff has not brought any charges against Local 1549 prior to instituting this action. As such,
plaintiff’s potential claim against Local 1549 is untimely and must be dismissed.
Accordingly, Local 1549’s motion for judgment on the pleadings as to plaintiff’s
claim for breach of the duty of fair representation is granted.

3

Plaintiff states in her Amended Complaint: “Fearful, that I would loose [sic] my job, I did not bring these incidents
to upper-level management . . ., but instead my union representative, Eddie Douglas.” (AC at 6.)

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CONCLUSION
For the foregoing reasons, the defendants' motion for judgment on the pleadings
is granted in part and denied in part. The motion of the City of New York and DoITT to dismiss
is GRANTED as to plaintiffs claims under Title VII, the ADEA, and the ADA, but DENIED as
to plaintiff's claims under section 1981, section 1983, NYSHRL, and NYCHRL. Local 1549's
motion to dismiss is GRANTED as to all of plaintiff's claims.
Counsel for the City of New York and DoITT are directed to provide to plaintiff
copies of all unreported cases cited herein.

SO ORDERED.

/d!~

Dated: New York, New York
December 15,2011

P

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P. Kevin Castel
United States District Judge