Givens v. City of New York et al

Filing 78

MEMORANDUM AND ORDER: granting 17 Motion for Judgment on the Pleadings; granting 34 Motion to Dismiss; granting 54 Motion to Dismiss. For the foregoing reasons, the CCHR Defendants' motion for judgment on the pleadings (Docket # 17), City Defendants' motion to dismiss (Docket # 34), and Norman Seabrook's motion to dismiss (Docket # 54), are GRANTED, and the Amended Complaint is dismissed in its entirety. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Defendants' attorneys are directed to provide copies of all unpublished opinions cited herein to plaintiff pro se. (Signed by Judge P. Kevin Castel on 1/9/2012) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
VERA L. GIVENS,
Plaintiff,

11 Civ. 2568 (PKC) (JCF)

-againstMEMORANDUM
AND ORDER
CITY OF NEW YORK,
NEW YORK CITY DEPARTMENT
OF CORRECTIONS, NEW YORK CITY
COMMISSION ON HUMAN RIGHTS,
COMMISSIONER PATRICIA GATLING,
PAUL LABOSSIERE, MARK WILSON,
WARDEN WILLIAM THOMAS,
WARDEN CARMINE LABRUZZO,
DEPUTY WARDEN DALE DOUGLAS,
DEPUTY WARDEN DIANE CARN,
CAPTAIN RONELL VISMALE, CAPTAIN
CYNTHIA BARRETT, CAPTAIN GERALD
VAUGHN, CAPTAIN PEDRO ROJAS,
CAPTAIN JACQUELINE BORGES, DEPUTY
PAMELA WALTON, C.O. PHYLLIS SMALL,
C.O. KENNETH CHAPMAN, C.O. WILLIE
GLOVER, C.O. CHANDRA LASONDE,
EEO COMMISSIONER LUIS BURGOS,
EEO INVESTIGATOR MIGDALIA ORTEGA,
COBA PRESIDENT NORMAN SEABROOK,
Defendants.
-----------------------------------------------------------x
P. KEVIN CASTEL, District Judge:
Vera Givens, plaintiff pro se, brings this action against the above-captioned
defendants asserting discrimination on the basis of disability in violation of city, state, and
federal law. Defendants City of New York (“City”), New York City Department of Corrections
(“DOC”), Warden Carmine Labruzzo, and Equal Employment Opportunity (“EEO”)
Commissioner Luis R. Burgos (collectively “City Defendants”) now move to dismiss the

Amended Complaint for failure to state a claim upon which relief can be granted. Defendant
Norman Seabrook separately moves to dismiss on the same ground. Defendants New York City
Commission on Human Rights (“CCHR”), Patricia L. Gatling, Paul Labossiere, and Mark
Wilson (collectively “CCHR Defendants”) move for judgment on the pleadings. For the reasons
discussed below, the federal claims are dismissed as to all defendants, and the Court declines to
exercise supplemental jurisdiction over the city and state law claims.
BACKGROUND
The facts below are taken from plaintiff’s Amended Complaint and the record of
her state administrative proceedings. The Court consults the state administrative record because
plaintiff references both her termination hearing and her CCHR complaints—and names CCHR
as a defendant—but does not fully describe the proceedings or their outcomes. See Samuels v.
Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993) (court may “consider documents
incorporated by reference or attached to the complaint as exhibits, documents the plaintiff knew
of or possessed and relied upon in framing the complaint, and items of which judicial notice
maybe taken”); Evans v. New York Botanical Gardens, No. 02 Civ. 3591, 2002 WL 31002814,
*4 (S.D.N.Y. Sept. 4, 2002) (court “may take judicial notice of the records of state administrative
procedures, as these are public records, without converting a motion to dismiss to one for
summary judgment.”)
Plaintiff began working for DOC in 2001. (Am. Compl. ¶ 3.) In May and
September 2004, plaintiff injured her right foot and knee, necessitating physical therapy and
medication. (Am. Compl. ¶ 4.) In January 2005, plaintiff asked for and received a day-tour
accommodation. (Am. Compl. ¶ 5-6.) In February 2006, plaintiff asked for and received a
transfer to a Bronx facility but was put on a rotating shift. (Am. Compl. ¶¶ 6-7.) In September

2

2006, plaintiff submitted a doctor’s note “requesting” a full-duty morning tour. (Am. Compl. ¶
8.) In October 2006, DOC briefly granted plaintiff a morning day tour but quickly revoked it.
(Am. Compl. ¶¶ 9-12.)
Plaintiff then contacted the EEO office of DOC to complain about the withdrawal
of her day-tour accommodation. (Am. Compl. ¶ 13.) The EEO office responded on October 30,
2006, that DOC could not accommodate plaintiff because plaintiff’s documentation did not
establish a disability. (Am. Compl. ¶ 14.) Plaintiff made numerous appeals for reinstatement of
her accommodation to different officers of DOC, the EEO office, and the Correction Officer
Benevolent Association (“COBA”), but she received no further accommodation. (Am. Compl.
¶¶ 15-20.)
In August 2007, plaintiff filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) and her first complaint with CCHR, alleging that DOC had
discriminated against her by refusing to accommodate her disability.1 (Am. Compl. ¶ 23;
Minnah-Donkoh Decl. Ex. A, CCHR Verified Complaint, August 2, 2007 (“Ex. A”).)
Thereafter, several events occurred that plaintiff alleges were retaliation for her complaints.
First, on December 5, 2007, plaintiff’s car was “vandalized” while it was parked
in the lot of a “secured/camera monitored correctional facility.” (Am. Compl. ¶ 21.) DOC
concluded that the damage was done by the wind, but plaintiff alleges that DOC did not conduct
an adequate investigation. (Id.)
Second, during much of her “sick leave,” DOC ordered plaintiff to appear at the
Health Management Division (“HMD”). (Am. Compl. ¶ 34.) She was required to report to

1

Plaintiff’s Amended Complaint does not make clear when she filed either the EEOC charge or the CCHR
complaint. However, the CCHR complaint itself (Ex. A) is dated August 3, 2007, and it references the filing of the
EEOC charge (see Ex. A ¶ 19).

3

HMD four days in one week in July 2008 and has been required to report even when the doctor
she was scheduled to see was not present. (Am. Compl. ¶ 35.)
Third, in June 2008, on the basis of plaintiff’s allegedly excessive absences and
other alleged misconduct, DOC began disciplinary proceedings against plaintiff by filing
“charges and specifications” against her before the New York City Office of Administrative
Trials and Hearings (“OATH”). (Am. Compl. ¶ 31.) In September 2008, OATH held a hearing
on the charges, at which plaintiff testified and presented documentary evidence. (MinnahDonkoh Decl. Ex. C, Report and Recommendation, OATH Index No. 393/09, Dec. 29, 2008
(“Ex. C”), at 1.) On December 29, 2008, Administrative Law Judge (“ALJ”) Kevin F. Casey
issued his Report and Recommendation recommending that petitioner’s employment be
terminated. (See id.) ALJ Casey concluded:
While respondent [Givens] attributed most of her absences
to work-related injuries, that claim was not credible. In any event,
her absenteeism is extraordinary. She missed nearly 140 days in 14
months. Respondent also violated Department procedure when she
filed a complaint against a co-worker without waiting for her
command to conduct a proper investigation. All of this evidence
demonstrates that respondent cannot be relied on to perform her
obligations as a correction officer.
(Id. at 10.) On February 3, 2009, DOC terminated plaintiff’s employment. (Minnah-Donkoh Ex.
D, CCHR Determination and Order, September 30, 2010 (“Ex. D”), at 2.)
Meanwhile, on August 25, 2008, plaintiff had amended her CCHR complaint to
add a charge of retaliation based on the events described above. (See Minnah-Donkoh Decl. Ex.
B (“Ex. B”), ¶¶ 18-20.) On September 10, 2010, CCHR issued its Determination and Order after
Investigation, which determined that “there is NO PROBABLE CAUSE to believe that
Respondents [DOC] engaged in the unlawful discriminatory practices alleged,” either by
removing plaintiff’s accommodation or by retaliating for her filing of complaints. (Ex. D. at 1.)
4

CCHR found that, as regards the accommodation, DOC had established a history of engaging in
a “meaningful interactive process” with plaintiff and that DOC had offered her a steady tour—
though not necessarily a steady day tour—in 2006 that would have met plaintiff’s stated needs.
(Id. at 2.) As regards retaliation, CCHR found nothing suggestive of retaliation in the damage to
plaintiff’s car, which had been investigated by the police, or in requiring plaintiff to appear at
HMD. (Id. at 3.) Finally, DOC’s decision to charge plaintiff and seek her termination was the
result of “non-discriminatory business judgment” after plaintiff was absent from 47% of her
scheduled work days in a 14-month period. (Id.)
Upon plaintiff’s request, the Chair of the Commission reviewed the CCHR
determination; she affirmed the No Probable Cause determination. (Minnah-Donkoh Decl. Ex.
G., CCHR Determination and Order after Review, January 18, 2011 (“Ex. G”).)
Plaintiff then brought an Article 78 petition in the Supreme Court of the State of
New York, County of New York, for a review of the CCHR determination, and the Supreme
Court concluded that the CCHR determination was supported by substantial evidence. Givens v.
Gatling, Index No. 101969/2011 (N.Y. Sup. Ct. August 11, 2011) (unfiled judgment)
(reproduced as Minnah-Donkoh Decl. Ex. N). The state court rejected plaintiff’s argument that
CCHR had inadequately addressed her retaliation complaint, holding that “DOC did try to
reasonably accommodate petitioner and [] petitioner’s termination was motivated by valid
business reasons.” (Id. at 12.)
On March 1, 2011, EEOC adopted the CCHR findings, dismissed plaintiff’s
charge, and issued a right-to-sue letter. (Compl. Attach. 1.) Plaintiff filed her Amended
Complaint with this Court on May 20, 2011. (Docket # 12). The Amended Complaint repeats

5

essentially verbatim the allegations plaintiff made in her amended complaint to CCHR (compare
Ex. B ¶¶ 1-22; with Am. Compl. ¶¶ 1-20, 67, 71-73) and adds new factual allegations.
Briefly, the additional allegations are as follows. First, two DOC Captains,
defendants Burges and Vismale, harassed and threatened plaintiff. (Am. Compl. ¶¶ 23, 58-63.)
Second, another correction officer, Phyllis Small, assaulted plaintiff and afterward was treated
favorably by her superiors (aside from being suspended), while plaintiff was treated unfavorably.
(Am. Compl. ¶¶ 25, 27-30, 48, 50-52). Third, a correction officer who suffered from the same
“panic disorder/anxiety disorder” as plaintiff was absent more than plaintiff, but no charges were
brought against that officer. (Am. Compl. ¶¶ 38, 40.) Fourth, COBA and COBA’s president,
defendant Seabrook, successfully fought charges against a different officer who had more
absences than plaintiff (Am. Compl ¶¶ 42-46, 65-66); but, instead of supporting plaintiff, COBA
“continued to discriminate, annoy, intimidate, harass and in a retaliatory bias manner issue a
news letter” discriminating against plaintiff and championing Phyllis Small. (Compl. ¶ 49.)
On the basis of the foregoing alleged conduct, plaintiff asserts violations of New
York City law, New York State law, and Titles I and V of the Americans with Disabilities Act
(“ADA”). (Am. Compl. ¶¶ 67, 71-73); see N.Y. City Admin Code § 8-107; N.Y. Exec. Code §
296; 42 U.S.C. §§ 12112(a) & (b)(5), 12203(a).
DISCUSSION
I.

Standard of Review

For the purposes of a motion to dismiss, all non-conclusory factual allegations of
the non-movant are accepted as true, see Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009), and
all reasonable inferences are drawn in favor of the non-movant, In re Elevator Antitrust Litig.,
502 F.3d 47, 50 (2d Cir. 2007). The same standard applies to motions for judgment on the

6

pleadings. L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). Despite this
solicitude, however, affirmative defenses that are apparent on the face of a complaint may be
raised and considered on a motion to dismiss. Pani v. Empire Blue Cross Blue Shield, 152 F.3d
67, 74 (2d Cir.1998); see also Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (res judicata as
basis for dismissal).
II.
There is No Individual Liability
for ADA Discrimination or Retaliation Claims.
Title I of the ADA prohibits disability discrimination, including failures to
accommodate, see 42 U.S.C. § 12112(a) & (b)(5)(a), and Title V prohibits retaliation, see 42
U.S.C. § 12203(a). However, neither of these ADA claims is enforceable against individuals.
“[T[he retaliation provision of the ADA . . . cannot provide for individual
liability.” Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010). This is so because “‘the
remedial provisions of Title VII [of the Civil Rights Act of 1964], including § 2000e-5, do not
provide for individual liability,’ and the retaliation provision of the ADA ‘explicitly borrows the
remedies set forth in § 2000e-5.’” Parada v. Banco Industrial de Venezuala, C.A., No. 10 Civ.
883, 2011 WL 519295, *4 (S.D.N.Y. February 15, 2011) (quoting Spiegel, 604 F.3d at 79); see
also Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (no individual liability under Title
VII).
Similar reasoning dictates that there can be no individual liability for
discrimination. Parada, 2011 WL 519295 at *4. Under Title VII, there is no individual liability
for discrimination, because individual employees are not “employer[s]” as defined and regulated
by that title. Tomka, 66 F.3d at 1314. The ADA definition of “employer” mirrors the Title VII
definition. Compare 42 U.S.C. § 12111(5), with 42 U.S.C. § 2000e(b). Therefore, individual
employees are also not employers as defined and regulated by the ADA. Parada, 2011 WL
7

519295 at *4; see also Corr v. MTA Long Island Bus, 27 F. Supp. 2d 359, 370 (E.D.N.Y.) (“In
light of Tomka, and the overwhelming authority in the Second Circuit construing Tomka as
prohibiting individual liability under the ADA, Plaintiff's ADA claim against [individual
defendants] must be . . . dismissed.”), aff’d, 199 F.3d 1321 (2d Cir. 1999) (unpublished opinion).
Accordingly, the ADA claims against all individual employees named in the Amended
Complaint must be dismissed.
III.

DOC is Not a Suable Entity.

The New York City Charter provides that “all actions and proceedings for the
recovery of penalties for the violation of any law shall be brought in the name of the City of New
York and not in that of any agency, except where otherwise provided by law.” N.Y. City Charter
Ch. 17 § 396. Therefore, DOC is not a suable entity, Adams v. Galletta, 966 F.Supp. 210, 212
(S.D.N.Y. 1997), and it must be dismissed from the action.
IV.

Plaintiff States No Claim against CCHR.

In order to state a claim for relief, a plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 129 S.Ct at 1949. The Amended Complaint makes no allegations at
all regarding misconduct by CCHR. (See generally Am. Compl.) Accordingly CCHR is
dismissed from this case. See, e.g., Clarke v. Flushing Manor Care Center, No. 02 Civ.
3079, 2009 WL 2136385, *1 n.1 (S.D.N.Y. July 17, 2009).
V.

Plaintiff’s Accommodation and Retaliation Claims are Precluded.

Plaintiff’s ADA claims against the City for DOC’s alleged failure to
accommodate and subsequent retaliation are barred by the doctrine of collateral estoppel, also

8

called issue preclusion.2 The full faith and credit statute, 28 U.S.C. § 1738, requires that federal
courts “afford the same full faith and credit to state court judgments that would apply in the
State’s own courts.” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 463 (1982). Thus, absent an
express or implied repeal of section 1738, a federal court must apply the collateral estoppel
principles of the rendering state. Allen v. McCurry, 449 U.S. 90 (1980) (section 1983 action);
see Kremer, 456 U.S. 461 (Title VII action). Since the Court is pointed to no statute that repeals
section 1738 as to ADA claims, the preclusion law of New York State applies. “In New York,
collateral estoppel has two essential elements. ‘First, the identical issue necessarily must have
been decided in the prior action and be decisive of the present action, and second, the party to be
precluded from relitigating the issue must have had a full and fair opportunity to contest the prior
determination.’” Jenkins v. City of New York, 478 F.3d 76, 85 (2d Cir. 2007) (quoting Juan C.
v. Cortines, 89 N.Y.2d 659, 667 (1997)).
In this case, the issues that resolve plantiff’s ADA claim were necessarily
resolved against her in state proceedings. Plaintiff asserts that DOC “violated title 1 of the
Americans with disabilities act, 42 U.S.C. ¶ 12101 et seq on the basis of her disability and in
2

Plaintiff’s ADA claims may also be barred by res judicata, or claim preclusion. New York takes a “transactional”
approach to claim preclusion, which precludes all subsequent claims arising from the same “factual grouping”
underlying the first claim. Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192-93 (1981). There is little doubt that the
present action arises from the same factual grouping as the claims brought before CCHR. (Compare Am Compl.,
with Ex. B.) However, claim preclusion “will not be applied if the initial forum did not have the power to award the
full measure of relief sought in later litigation.” Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir. 1986). In
Davidson, the Second Circuit concluded that “damages for civil rights violations are not included in [the relief
available in Article 78 proceedings].” Id. But, in Kirkland v. City of Peekskill, the Second Circuit distinguished
Davidson and applied claim preclusion based on an Article 78 review of an administrative agency determination,
because the agency had the power to award the full relief sought. In this case, plaintiff seeks punitive damages from
the City, a form of relief that CCHR does not expressly offer. See N.Y. City Admin. Code § 8-120 (CCHR can
require respondent to take affirmative action “including, but not limited to” various remedies among which punitive
damages not listed). However, punitive damages are not available under federal employment discrimination law
against “a government, government agency or a political subdivision.” 42 U.S.C. § 1981(b)(1). Therefore, even
assuming CCHR cannot award punitive damages, the relief available before CCHR was likely as extensive as the
relief available now. If so, the present facts align with those of Peekskill, making claim preclusion appropriate.

9

retaliation.” (Am. Compl. ¶ 71.) Mindful of plaintiff’s pro se status, the Court has read this
statement to assert violations of both Title I and Title V of the ADA, which prohibit
discrimination by failure to accommodate and retaliation, respectively. See 42 U.S.C. §§
12112(a) & (b)(5) (discrimination & failure to reasonably accommodate); 42 U.S.C. § 12203(a)
(retaliation). But CCHR determined that there was no probable cause to believe that DOC had
failed to accommodate plaintiff’s alleged disability or retaliated against her, as those terms are
defined in the city code. (See Ex. D.) The city code definition of disability is more generous
than that of the ADA, Giordano v. City of New York, 274 F.3d 740, 753 (2d Cir. 2001), and the
code’s definitions of discrimination, failure of accommodation and retaliation are at least as
broad as those in the ADA, compare N.Y. City Admin. Code §§ 8-107(1)(a), (7), (15), with 42
U.S.C. §§ 12112(a) & (b)(5)(a), 12203(a)-(b). Therefore, the CCHR determination necessarily
resolved the issues of accommodation and retaliation under the ADA. The Supreme Court of
New York’s holding that the CCHR determination was supported by substantial evidence is a
judgment entitled to preclusive effect. See Kremer, 456 U.S. at 479-80 & n.21.
Plaintiff had a full and fair opportunity to litigate these issues. “In testing the
fairness of the earlier litigation, the presence of counsel on behalf of the losing party, the
regularity of the procedures . . . the adequacy of those procedures in the particular case and the
limits of the jurisdiction in the first court are all significant and helpful guides.” Read v.
Sacco, 375 N.Y.S.2d 371, 375 (2d Dep’t 1975). In her proceedings before CCHR, plaintiff was
represented by counsel, who later personally attested to the “large number of hours” and “time
and energy put forth . . . to gain justice for [his] client.” (Am. Compl. Attach. 2, Affirmation of
Lloyd Somer, at ¶ 3.) CCHR made its determination based not only on a record including
“medical notes, DOC’s internal investigations into the petitioner’s disability, and memos from

10

both parties, among other items,” but also on the findings of the ALJ in the OATH hearing—a
hearing at which plaintiff testified and presented evidence. Givens, Index No. 101969/2011 at
10; (Ex. C at 1). The Commissioner of CCHR, defendant Gatling, then reviewed “the complaint;
the answer; comments from all parties (if submitted); the Determination and Order after
Investigation; and complainant’s request for review,” and affirmed the determination. (MinnahDonkoh Decl. Ex. G.) Finally, the Supreme Court of New York reviewed the determination,
specifically considered plaintiff’s contention that the CCHR investigation was “one sided and
incomplete,” and found the determination supported by substantial evidence. Givens, Index No.
101969/2011. In short, plaintiff, with the help of counsel, participated in extensive, regular
procedures that provided her ample opportunity to vigorously litigate the issues of
accommodation and retaliation. Cf. Kremer, 461 U.S. at 483-85 (holding that similar “panoply
of procedures” under New York State Division of Human Rights, “complemented by
administrative as well as judicial review,” satisfies Due Process Clause). Therefore, plaintiff is
now collaterally estopped from relitigating those issues.
Plaintiff does not avoid this result by adding factual allegations to her Amended
Complaint. As has been described, plaintiff now alleges harassment by superior officers, an
assault by a fellow officer, and disparate treatment of others similarly situated. (See Am.
Compl. ¶¶ 23-66.) These new allegations appear directed at bolstering plaintiff’s retaliation
claim, but as such they are further evidence factually supporting an issue that is already
precluded: “[I]f the party against whom preclusion is sought did in fact litigate an issue of
ultimate fact and suffered an adverse determination, new evidentiary facts may not be brought
forward to obtain a different determination of that ultimate fact.” Restatement (Second) of
Judgments § 27 cmt. c; cf. Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 457 (1985) (relying on

11

Restatement (Second) of Judgments § 27). Because the adverse resolution of these issues
disposes of plaintiff’s accommodation and retaliation claims under the ADA, those claims must
be dismissed.
VI.

Plaintiff Fails to State a Hostile Environment Claim.

Alternatively, plaintiff may allege the new facts to support a claim for a different
form of discrimination, namely a hostile working environment.3 Assuming arguendo that the
Second Circuit recognizes a hostile working environment cause of action under the ADA, see,
e.g., Braun v. Securitas Sec. Services USA, Inc., No. 07 Civ. 2198, 2009 WL 150937, *8
(E.D.NY. January 20, 2009), plaintiff still fails to state such a claim.
In order to state a claim for any violation of Title I of the ADA, a plaintiff must
first file a charge as to that violation with EEOC. McInerney v. Rensselaer Polytechnic Inst, 505
F.3d 135, 138 (2d Cir. 2007). The purpose of this administrative-exhaustion requirement “is to
give the administrative agency the opportunity to investigate, mediate, and take remedial action.”
Stewart v. INS, 782 F.2d 193, 198 (2d. Cir. 1985) (Title VII requirement); see also 42 U.S.C. §
12117(a) (adopting procedures and remedies of Title VII). That purpose “would be defeated if a
complainant could litigate a claim not previously presented to and investigated by the EEOC.”
Miller v. ITT, 755 F.2d 20, 26 (2d Cir. 1985). A hostile working environment claim, like any
other Title I claim, is subject to this requirement. See, e.g., Giannattasia v. City of New
York, No. 09 Civ. 0062, 2011 WL 4629016, *3 (E.D.N.Y. Sept. 30, 2011).
A claim not actually exhausted may be deemed exhausted if it is “reasonably
related” to the charge brought before EEOC. Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir.
3

The final paragraph of plaintiff’s Amended Complaint alleges that “[r]espondents / defendants caused and/or
exacerbated complainant’s disability, caused undue hardship, and subjected complainant to a hostile working
environment.” (Am. Compl. ¶ 73.) The paragraph continues with an extensive list of vaguely stated alleged wrongs
from which it is not possible to infer any other non-precluded federal claims. (See id.)

12

2008) (citing Butts v. City of New York Dep’t of Hous. Preservation and Dev., 990 F.2d 1397,
1402 (2d Cir. 1993)). A claim is reasonably related to the EEOC charge if it would fall within
the scope of the administrative investigation of the charge. See id. The purpose of this “loose
pleading” rule is to make allowance for an unrepresented employee filling out an EEOC charge
with the primary purpose of alerting EEOC to the discrimination that the employee claims she is
suffering. Butts, 990 F.2d at 1402. Accordingly, courts “focus on the factual allegations made
in the EEOC charge” to determine whether the charge “gave th[e] agency adequate notice to
investigate discrimination on the [newly alleged basis].” Mathirampuzha, 548 F.3d at 76-77
(internal quotations and citations omitted). Ultimately “[j]udicial claims which serve to amplify,
clarify, or more clearly focus earlier [EEOC] complaints are appropriate,” but “[a]llegations of
new acts of discrimination, offered as the essential basis for the requested judicial review are not
appropriate.” McGuire v. U.S. Postal Service, 749 F.Supp. 1275, 1287 (S.D.N.Y. 1990) (quoting
Ray v. Freeman, 626 F.2d 429, 443 (5th Cir. 1980)).
When examining reasonable relation in the context of newly alleged hostile
environment claims, the Second Circuit has emphasized that “[h]ostile environment claims are
different in kind from discrete acts.” Mathirampuzha, 548 F.3d at 76-77 (quoting Nat’l R.R.
Passenger Corp v. Morgan, 536 U.S. 101, 115 (2002)). Instead, a hostile work environment is
created “[w]hen 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.” Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75, 78 (1998). And, “[a]s a general rule, incidents must be more than episodic; they must
be sufficiently continuous and concerted in order to be deemed pervasive.” Terry v. Ashcroft,
336 F.3d 128, 148 (2d. Cir. 2003) (internal quotations and citations omitted). Because discrete

13

acts do not suggest a hostile environment claim, in Mathirampuzha the Second Circuit found
plaintiff’s hostile environment claim unrelated to his EEO charge describing a single, albeit
severe, physical assault. 548 F.3d at 77.
In this case, the “reasonably related” analysis is complicated by plaintiff’s
omission of an EEOC charge from her pleadings. However, plaintiff authorized CCHR to accept
her federal charges on behalf of EEOC (Ex. B. ¶ 22), and EEOC adopted the findings of CCHR
when it dismissed plaintiff’s charge (Compl. Attach 1). Therefore, the court assumes that
plaintiff’s amended CCHR complaint, prepared with the help of counsel, is at least as detailed as
any earlier-filed EEOC charge, and, moreover, that the CCHR investigative record discloses the
full extent of the charges actually investigated by CCHR on behalf of EEOC.
Review of these CCHR materials makes clear that plaintiff’s hostile environment
claim is not reasonably related to her administrative charges. Plaintiff authorized CCHR to
accept on behalf of EEOC the charge that DOC “violated Title I of the [ADA], on the basis of
[plaintiff’s] disability, and in retaliation.” (Ex. A ¶ 19.) Neither this nor any other paragraph in
the amended CCHR complaint makes any mention of a hostile environment charge. (See id.)
True, the amended CCHR complaint does allege that DOC failed to sufficiently investigate the
damage to plaintiff’s car in December 2007, forced her to appear excessively at HMD while on
sick leave in 2008, and began termination proceedings against her in June 2008. (Id.) But these
events do not suggest a hostile environment claim. Although plaintiff alleges more events than
did the plaintiff in Mathirampuzha, the events are still “episodic.” Terry, 336 F.3d 148. Amd.
instead of being “sufficiently severe . . . [to] create an abusive working environment,” Onacle,
523 U.S. at 78, the alleged events are all administrative actions attenuated from plaintiff and her
literal working environment. Therefore, even if the administrative record did not reveal the

14

content of the administrative investigation, it would be clear that plaintiff’s amended CCHR
complaint did not give “adequate notice” of a hostile environment claim. See Mathirampuzha,
548 F.3d at 77. Moreover, the administrative record reveals that the actual CCHR investigation
did not address a hostile environment charge (see Ex. D), so such a claim cannot have been
“within the scope,” Butts, 990 F.2d at 1402, of the administrative investigation. Instead,
plaintiff’s hostile environment claim is a new claim that relies on new factual allegations not
presented for administrative review (compare Am. Compl, with Exs. A & B.), and to allow
plaintiff to assert it now would thwart the purposes of administrative exhaustion, see Miller, 755
F.2d at 26.4
VII.

The Court Declines to Exercise
Supplemental Jurisdiction over Plaintiff’s City and State Law Claims.

Section 1367 of title 28 of the United States Code governs the exercise of
supplemental jurisdiction and states in relevant part:
[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.
28 U.S.C. § 1367(a).
Section 1367(c)(3) states that a district court “may decline to exercise
4

If plaintiff had exhausted her hostile environment claim, she would be collaterally estopped from bringing that
claim now. The premise of “reasonably related” exhaustion is the assumption that the new claim was reasonably
within the scope of the administrative investigation. See Williams v. New York City Hous. Auth., 458 F.3d 67,
70 (2d Cir. 2006). If the hostile environment charge was within the scope of the CCHR investigation, then the
CCHR determination also included a determination of no probable cause to believe DOC created a hostile working
environment. The Supreme Court of New York’s decision upholding that determination would then preclude
relitigation of the issue whether the facts alleged gave rise to a hostile working environment, just as it precludes
relitigation of the accommodation and retaliation issues. See Section VI, supra. And, as with the retaliation issue,
plaintiff could not avoid preclusion of the hostile environment issue by offering new factual allegations to bolster
her precluded assertion. See id. Plaintiff’s claim cannot now be both non-exhausted and non-precluded.

15

supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed
all claims over which it has original jurisdiction . . . .” Although section 1367(c)(3) is couched in
permissive terms, the Second Circuit has made clear that the Court's discretion “is not
boundless.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003). “In deciding
whether to exercise jurisdiction over supplemental state-law claims, district courts balance the
values of judicial economy, convenience, fairness, and comity—the ‘Cohill factors.’” Klein &
Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006) (citing
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point
toward declining to exercise jurisdiction over the remaining state-law claims.” Cohill, 484 U.S.
at 350 n.7. Because plaintiff’s federal claims are herein dismissed and none of the Cohill factors
support exercising supplemental jurisdiction over the remaining city and state law claims, those
claims are dismissed without prejudice.5
CONCLUSION
For the foregoing reasons, the CCHR Defendants’ motion for judgment on the
pleadings (Docket # 17), City Defendants’ motion to dismiss (Docket # 34), and Norman
Seabrook’s motion to dismiss (Docket # 54), are GRANTED, and the Amended Complaint is
dismissed in its entirety. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this Order would not be taken in good faith, and therefore in forma pauperis status is denied
for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

5

The Court also notes that city and state law present jurisdictional bars to plaintiff’s bringing any other city or state
law claims, in any court, based on the same incidents that were the basis of her CCHR complaint. See N.Y. Exec.
Law § 297(9); N.Y. City Admin. Code § 8-502; York v. Ass'n of the Bar, 286 F.3d 122, 127 (2d. Cir. 2002).

16

Defendants' attorneys are directed to provide copies of all unpublished opinions cited herein to
plaintiff pro se.
SO ORDERED.

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Dated: New York, New York
January 9,2012

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P. K.evrn Castel
United States District Judge