Baez v. The State of New York et al

Filing 86

MEMORANDUM & ORDER denying 46 Motion to Dismiss; granting 60 Motion to Dismiss. For the foregoing reasons, Defendants' motion to dismiss the Second Amended Complaint is GRANTED. This resolves Dkt. No. 60. Docket No. 46 is administratively denied as moot. The Clerk is requested to terminate the case. (Signed by Judge Alison J. Nathan on 9/29/2014) (lmb)

USDCSDNY
DOCUMENT
ELECTRONICALLY FH ED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

- -·-~
- - - - - --·---...
DATE FILED~SEE. 2 9 2014DOC#:

SARAH BAEZ,
Plaintiff,
12-cv-8229 (AJN)

-vMEMORANDUM &
ORDER

THE STATE OF NEW YORK et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Plaintiff Sarah Baez, proceeding prose, brings this suit under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and New York State Human Rights Law, N.Y. Exec. Law§ 290 et

seq., alleging illegal discrimination and retaliation by her employer, the State of New York and
the New York State Office of Temporary and Disability Assistance (OTDA). Defendants have
filed a motion to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure
12(b)(6). See Dkt. No. 46. For the following reasons, that motion is GRANTED.
I.

Background

For the purposes of this motion, the Court accepts as true the factual allegations in the
Second Amended Complaint of November 8, 2013. Plaintiff is a sixty-year-old female of Puerto
Rican descent. Compl.

~

3 (Dkt. No. 52). She was hired by Defendant OTDA to the position of

"Disability Analyst 1 Spanish Speaking" in 1979, and in 2001 she was "upgraded" to Disability
Analyst 2 after the level-1 position ceased to exist. Id.

~

18. She remained in that position until

she was suspended with a demand for her termination on January 4, 2013, after which she
retired. Id.

~~

27, 32.
1

During the course of her employment, Plaintiff was diagnosed with a series of
debilitating ailments that made it difficult for her to perform her job; these ailments either
manifested or worsened after 2000.

Id.~~

21-26, 32. These health problems included lower

back degenerative disease and cervical spine degenerative disease, id.
neuropathy and arthritis, id.

~

23; carpal tunnel syndrome, id.

visual disturbance, pain, and aura, id.

~

25; and glaucoma, id.

~

22; upper extremity

~

24; migraine headaches involving

~

26.

Plaintiff requested a series of accommodations for these ailments, with several examples
listed in the Complaint. She asked for voice recognition software in 2001, and her request was
denied until 2002 when she pointed out that other employees had been given the software
without a medical need. Id.

~

32. On other occasions, she was denied requests for replacement

of a broken electronic stapler, reassignment of her work space away from a hostile male
coworker due to her anxiety, a flat screen computer monitor, and movement to another, more
dimly lit workspace to lessen her migraines. Id.

~~

32-49. Her supervisors also refused to let her

remove a second monitor at her workstation to clear up desk space and store files in a filing a
cabinet located behind her workspace. Id.

~~

50-59. When she did not receive a satisfactory

outcome on this last request, she contacted the New York State Public Employee Safety and
Health Bureau, which sent investigators to visit her workspace on November 18, 2010, but
subsequently reached a decision unfavorable to her. Id.

~~

62, 64. Five days after the

investigation, Plaintiff was given a notice of discipline demanding her termination. Id.

~

63.

In 1994 or 1995, 1 Plaintiff brought a federal lawsuit against Defendants alleging
discrimination in their failure to promote Hispanic employees and retaliation for bringing it to
Defendants' attention. Id.

~~

28-29, 84. That lawsuit settled. Id.

1

~

30. In 2008, Plaintiff began

In Plaintiffs employment discrimination action filed in New York state court, the coutt identified the year
this first federal lawsuit was filed as 1992. See Dkt. No. 62-2 at 18.

2

applying for a promotion to "Disability Analyst 3" and "Disability Analyst 3 Spanish Language"
positions, but was not promoted that year, nor when she repeatedly applied in 2010, 2011, and
2012.

Id.~~

65, 79, 91-98, 101. She took the promotional examination in June 2010, and

received a score of "90."

Id.~~

81-82. In August 2012, she was interviewed for a level-3

position, but was told she scored only 2 out of 3 on the Spanish proficiency examination,
although she was not permitted to see the results. Id.

~~

101-05. She alleges that she was

similarly situated to the candidates who got the promotions, in the sense that she was a Disability
Analyst 2 when applying, had passed a competitive civil service examination for her current
position, and passed an oral examination in Spanish. Id.

~

68. She maintains that she was more

highly qualified than these other candidates, however, because of her years of experience, her
high rate of decisional accuracy, and positive comments from co-workers. Id.

~~

69-71. Based

on her performance, she was asked to train new level-2 Disability Analysts in 1998. Id.

~

99.

Instead of being promoted, Plaintiff says she was discriminated and retaliated against by
placement on a "Medical Assistance Aid to the Disabled" project team, which she alleges was an
assignment reserved for "older workers" seen as "incompetent or problematic." Id.

~

77. Even

with this assignment, Plaintiff retained her position of Disability Analyst 2, pay grade, and
seniority during this time frame. Id.

~

77. The unit was reassigned to evaluating Continuing

Disability Review claims in 2009, but remained in the same location with the same personnel.

Id.

~

78. That unit was disbanded while Plaintiff was suspended in the summer of 2012, but

upon her return, she was assigned back to the unit as its sole member. Id.
Plaintiff alleges that as of April 2009, of 124 Disability Analyst 3 positions, only one
"generic" (that is, non-Spanish language) position was occupied by a Hispanic employee. Id.
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85. Five Hispanic employees were in Disability Analyst 3 Spanish Language positions, three

3

of them for "many years," and two promoted in 2008, allegedly because of Plaintiffs
complaints. Id.

~

86. Both of those employees scored in the 70's on the promotion examination,

compared to Plaintiffs 90. Id.

~~

19, 90. In 2011, out of 544 Disability Analyst 2s, 29 were

Hispanic, and out of 135 Disability Analyst 3s, there was one Hispanic employee in a "generic"
position and three in Spanish Language positions. Id.

~

88.

In 2010, Plaintiff filed an action in New York state court alleging a pattern or practice of
discriminatory and retaliatory acts against her between 2000 and 2009. Id.

~

111. Beginning in

August 2010, she began to receive a series of disciplinary notices, including ones on August 4,
2010; November 23, 2010; May 4, 2011; April 2, 2012; and January 11, 2013.

Id.~

113. The

first of these notices "demanded" that Plaintiff be suspended without pay, and the rest
"demanded" her termination. Id.

~

114. These notices charged Plaintiff with insubordination for

not performing her job, and were accompanied by representations to a labor arbitrator that the
office had given Plaintiff every reasonable accommodation for which she had asked. Id.

~~

116-

20. On January 4, 2013-the last day Plaintiff worked for Defendants-she was given a notice
of immediate suspension and escorted from the building, and a week later was informed that it
was for insubordination in failing to follow directions and failure to manager her caseload. Id.
~~

121-25. She claims the Defendants falsely represented the she had more than the average

number of open cases and that she had breached the confidentiality of clients, and that she had
not been receiving new cases for seven weeks. Id.

~~

123-35.

Plaintiffs final allegation is that Defendants denied her the opportunity to work overtime
that it offered to other level 2 Disability Analysts. She claims that after she was placed in the
aforementioned Medical Assistance Aid to the Disabled unit for discriminatory and retaliatory
reasons, she was repeatedly denied opportunities for overtime and to transfer out of the unit, and

4

was told that overtime work was not permitted in that unit. Id

~~

145-151. Analysts doing

standard Social Security Administration processing were permitted such overtime. Id.

~~

147,

151. After the Medical Assistance unit was disbanded and Plaintiff returned to Social Security
Administration work, she was told she could not take overtime because she was being assigned
to fewer cases than other analysts, and was told she could not transfer to other types of work. Id.
~~

155-59. On another occasion, when an email was sent to all analysts offering overtime,

Plaintiff was told she could not participate because her performance evaluation was
unsatisfactory. Id.

II.

~~

162-64.

Abstention

Defendants first contend that the Court should abstain from hearing this case because of a
pending state action brought by Plaintiff. They argue that abstention under Colorado River
Water Conservation District v. United States, 424 U.S. 800 (1976), is applicable. The Court
disagrees.

A. LegalStandard
Federal courts have a "virtually unflagging" obligation to hear cases within their
jurisdiction. Lexmark Int'!, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386
(2014) (quoting Sprint Commc 'ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)). The abstention
doctrines recognized by the Supreme Court provide an "extraordinary and narrow exception" to
this rule for situations where requiring the parties to litigate only in state court "would clearly
serve an important countervailing interest" to this obligation to decide the case before the court.
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (quoting Cnty.
ofAllegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)). Colorado River abstention
may apply "in situations involving the contemporaneous exercise of concurrent jurisdictions" by

5

federal and state courts, when abstaining from federal jurisdiction would serve the interests of
"conservation of judicial resources and comprehensive disposition of litigation." Colo. River,
424 U.S. at 817.
For Colorado River abstention to be appropriate, the federal and state litigation must first
be parallel, in the sense that "substantially the same parties are contemporaneously litigating
substantially the same issue in another forum." Dittmer v. Cnty. of Suffolk, 146 F.3d 113, 118
(2d Cir. 1998) (quoting Day v. Union Mines Inc., 862 F.2d 652, 655 (7th Cir. 1988)); see also

Nat'! Union Fire Ins. Co. v. Karp, 108 F.3d 17, 22 (2d Cir. 1997) ("Federal and state
proceedings are 'concurrent' or 'parallel' for purposes of abstention when the two proceedings
are essentially the same; that is, there is an identity of parties, and the issues and relief sought are
the same."). If there are parallel proceedings, the court then weighs six factors to determine
whether to abstain under the Colorado River doctrine:
(1) the assumption of jurisdiction by either court over any res or property,
(2) the inconvenience of the federal forum,
(3) the avoidance of piecemeal litigation, ...
(4) the order in which jurisdiction was obtained ....
(5) whether state or federal law supplies the rule of decision, and
(6) whether the state court proceeding will adequately protect the rights of the party
seeking to invoke federal jurisdiction.

Burnett v. Physician's Online, Inc., 99 F.3d 72, 76 (2d Cir. 1996). These factors are not a
"mechanical checklist," but are to be balanced in light of the specific nature of the case, with the
scale heavily weighted in favor of the exercise of jurisdiction from the outset of the analysis.

Moses H Cone Mem 'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983); De Cisneros v.
Younger, 871 F.2d 305, 307 (2d Cir. 1989).

B. Analysis
There can be no Colorado River abstention if Plaintiffs federal and state actions are not
parallel. Plaintiff, with the assistance of counsel, filed the Complaint in her state-court suit on
6

April 2, 2010. See Baez v. State of New York et al., Index No. 110301/09 (N.Y. Sup. Ct. Apr. 2,
2010). That case involves the same parties that are before the Court in this lawsuit, and involves
almost the exact same factual allegations (although developed with some additional detail),
although the allegations end in 2009 rather than 2013. See Dkt. No. 62-1. That complaint
alleges discrimination against Plaintiff on the basis of her race, national origin, and age, as well
as disability discrimination and failure to accommodate, under New York State Human Rights
Law, N.Y. Exec. Law§ 296.
The New York Supreme Court dismissed the majority of Plaintiff's state complaint on
November 9, 2010. See Dkt. No. 62-2. The court found that all of Plaintiff's allegations from
before July 2006 were time-barred by New York's three-year statute of limitations for
employment discrimination suits, and that she had failed to state a claim that Defendants had
created a hostile work environment. Id. It further dismissed her retaliation claim as too remote
in time from any protected action, and her age discrimination claim as conclusory. Id. However,
the court denied Defendants' motion to dismiss Plaintiff's disability discrimination claim, id.,
which is now the subject of a fully submitted motion for summary judgment in the state court.

See Dkt. No. 85 (Status Letter).
At first blush, Plaintiff's federal claims bear so many similarities to those in her state suit
that a finding of parallel litigation would seem to follow. Many of Plaintiff's factual allegations
in this case are duplicative of her state complaint, and both suits state claims of national origin
discrimination, retaliation, and failure to provide reasonable accommodations against the State of
New York and the Office of Disability and Temporary Assistance. See Compl.

iii! 167-83.

Moreover, in addition to her federal causes of action, Plaintiff includes in her federal complaint
the same state causes of action that she pleaded in state court-that is, violations of the New
York State Human Rights law.
Nevertheless, Plaintiff's state suit and her federal suit contrast in one particularly
important way: this suit was filed 2013, after several intervening alleged acts of discrimination
by the Defendants, whereas the state suit was filed in 2010. The bulk of Plaintiff's state-law
7

claims had been dismissed by November 9, 2010, before several of the key events alleged by
Plaintiff in her federal complaint, including: denied applications to the Disability Analyst 3
position in 2010, 2011, and 2012, Compl. ,-r 79; her August 2012 interview for the same position
and Spanish proficiency examination, id. ,-i,-i 101-05; the inspection of her workspace by the
Public Employee Safety and Health Bureau on November 18, 2010 and the subsequent
unfavorable decision, id. ,-i,-i 62, 64; her suspension in 2012 and placement as the sole member of
the Medical Assistance Aid to the Disabled team, id. i-f 78; and most importantly for her
retaliation claim, the disciplinary action occurring after her filing of the state claim, id. ,-i,-i 111,
113, 116-20. Her final suspension and resignation occurred in this time period as well.
It would be odd to conclude that "wise judicial administration" required closing the

federal courthouse to Plaintiffs later allegations of workplace discrimination merely because
different, earlier allegations were filed in state court. To be sure, Plaintiff repeats the facts
underlying her state claim in her federal complaint; to the extent those claims could form part of
this case, a stay until the resolution of her state lawsuit might be prudent. But all of Plaintiffs
pre-2010 allegations would be time-barred. See discussion infra. That means there is no chance
that this suit will require re-litigation of the issues already decided or still under consideration in
the state suit, and thus the two suits (though they involve similar theories) do not touch on the
same subject matter. The suits are not parallel, so Colorado River abstention ought not apply.
Defendants argue that the suits should be considered parallel despite the disparate
timeframes of the underlying events because Plaintiff could have amended her state complaint to
include the facts that now form the basis of her federal claims. Amendments to pleadings
offered more than 20 days after service of the complaint require leave of the court or the
stipulation of all parties in New York. See N.Y. CPLR 3025. This possibility is not enough to
overcome "the presumption ... in favor of the federal court's retaining jurisdiction, not yielding
it." United States v. Pikna, 880 F.2d 1578, 1582 (2d Cir. 1989). Indeed, a plaintiff generally
"has no continuing obligation to file amendments to the complaint to stay abreast of subsequent

8

events; plaintiff may simply bring a later suit on those later-arising claims." Curtis v. Citibank,

NA., 226 F.3d 133, 139 (2d Cir. 2000) (discussing application of resjudicata).
Even if the proceedings were parallel, the bare fact of parallel litigation is not enough to
make abstention appropriate. See Gregory v. Daly, 243 F.3d 687, 702 (2d Cir. 2001). There
would also have to be "exceptional circumstances," for example "the danger of conflicting
remedies or a party's initiation of a second suit after receiving a preliminary adverse ruling on the
merits in the first suit." Id. As explained above, Plaintiff's inability to plead timely claims that
overlap with her state suit mean that there is no threat of conflicting remedies, and that this is not
a case of a plaintiff invoking federal jurisdiction solely because she received an adverse ruling
based on the same facts in state court.
Plaintiff's only allegation that raises a concern in that regard is her hostile work
environment claim. Such claims are based on a continuing course of conduct, and (as explained
below) are timely as long as one event in the course of conduct underlying the allegation took
place within the period to file a discrimination or retaliation charge. See Nat'! R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 117 (2002). Accordingly, some of Plaintiff's pre-2011
allegations could for the basis both for her previous unsuccessful hostile work environment
claim, and for the one alleged in this action. The Court is aware of the concern this raises that
Plaintiff has alighted to the federal forum only after an adverse ruling on the same claim in state
court, but two factors counsel against making that concern determinative here. First, again, is the
existence of a significant number of allegations in the Complaint post-dating the state court's
judgment. Second is the existence of other principles, such as res judicata, to prevent relitigation
of claims that have already proven unsuccessfully. Those principles, rather than abstention, are
the better way to deal with any chance of conflicting judgments here. Abstention under the

Colorado River doctrine is not warranted.

III.

Eleventh Amendment

9

The Eleventh Amendment bars suits against a state brought by a private citizen in federal
court unless the state consents, or Congress has abrogated the state's sovereign immunity with
regard to the specific claim at issue. See U.S. Const. amend. XI; Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984). Furthermore, "[a]n official arm of a state enjoys the same
Eleventh Amendment immunity from suit in federal court as is enjoyed by the state itself." Posr
v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999). OTDA is an "arm of the
state" for Eleventh Amendment purposes. Cincotta v. N. Y C. Human Res. Admin., No. OO-cv9064 (JGK), 2001WL897176, at *9 (S.D.N.Y. Aug. 9, 2001); McCluskey v. Comm 'r of Nassau
Cnty. Dep't ofSoc. Servs., No. 12-cv-3852 (JFB) (ETB), 2013 WL 4780954, at *1 (E.D.N.Y.
Sept. 5, 2013).
Because Plaintiff's suit alleges discrimination in employment on the basis of her
disability, it arises under Title I of the ADA. See 42 U.S.C. § 12112(a). The Supreme Court has
held that Congress did not validly abrogate the states' sovereign immunity to suits for money
damages when it passed Title I. Bd. ofTrs. of the Univ. ofAla. v. Garrett, 531 U.S. 356, 374
(2001). Although Title II of the ADA does, at least in some applications, validly abrogate the
states' sovereign immunity, see Tennessee v. Lane, 541 U.S. 509, 533-34 (2004), that title of the
statute applies only to discrimination in the "provision or operation of public services, programs,
or activities," id. at 517; 42 U.S.C. § 12132. Accordingly, Plaintiff's ADA claims must be
dismissed for lack of subject-matter jurisdiction. See Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 72-73 (1996) (suits "must be dismissed for a lack of jurisdiction" when state is immune).
Meanwhile, New York has not consented to be sued in federal court under its human
rights laws. See Pennhurst, 465 U.S. at 99; Sulehria v. New York, No. 12-cv-21 (LEK/ATB),
2012 U.S. Dist. LEXIS 148666 at *4 (S.D.N.Y. Sept. 17, 2012); Canales-Jacobs v. N. Y State
Office of Court Admin., 640 F. Supp. 2d 482, 498 (S.D.N.Y. 2009). All claims brought by
Plaintiff under these laws must be dismissed as well.

10

Congress has abrogated the states' sovereign immunity for claims under Title VII, so the
Eleventh Amendment does not bar Plaintiffs claims under that statute. See Fitzpatrick v. Bitzer,
427 U.S. 445, 448 (1976).

IV.

Timeliness

Filing a timely complaint with the Equal Opportunity Employment Commission
("EEOC") is a precondition to bringing a lawsuit under Title VII. 42 U.S.C. § 2000e-5(f)(l );
Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). An EEOC charge, in turn, must be filed

within 180 days of when the alleged unlawful employment practice occurred, unless the
complainant first files a complaint with a state or local agency for the same practice, in which
case the EEOC charge must be filed within 300 days. 42 U.S.C. § 2000e-5(e)(l); Nat'! R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).

According to the Complaint, Plaintiff filed a charge with the EEOC on May 30, 2012.
See Compl.

ii 12.

The Defendants argue that the EEOC charge was filed on April 30, 2012, but

the Court will accept Plaintiffs allegation for the purpose of evaluating the 12(b)( 6) motion.
Although the Court has not been made aware that a complaint with a state or local agency was
filed, the Court will accept Defendants' suggestion to apply the more generous 300-day filing
deadline, see Deft Mem. Supp. Mot. Dismiss at 16 (Dkt. No. 61), particularly because the
exhaustion requirement is waivable and not a jurisdictional prerequisite. See Francis v. City of
New York, 235 F.3d 763, 766-67 (2d Cir. 2000). Accordingly, all allegations from July 5, 2011

onward are timely, and any allegations from before that date are untimely.
Plaintiffs allegations of discrimination are based on the incidents of failure to promote,
failure to reassign Plaintiff to her original unit and instead keeping her in the Medical Assistance
Aid to the Disabled unit, assigning her to "lower level" positions, failing to provide reasonable
accommodations, suspending her, and denying her overtime. Compl.

ii 171.

The only allegedly

discriminatory acts occurring after July 5, 2011 were: failure to promote to Disability Analyst 3
on March 8, 2012, Compl.
2012, id.

ii 96; Plaintiffs four-month suspension without pay on March 9,

ii 97; Plaintiffs assignment as the sole member of the Medical Assistance Aid to the
11

Disabled unit upon her return from suspension in July 10, 2012, id.
August 2012, id.

~

~

78; failure to promote in

106; notices of discipline on April 2, 2012 and January 11, 2013, id.

her suspension on January 4, 2013,

id.~

~

113;

123; refusal to transfer Plaintiff out of her unit on

November 30, 2011, and denial of the opportunity for overtime on July 31, 2012,

id.~~

158, 162-

64. All of Plaintiffs others allegations are time-barred.
Unlike her discrimination claims, Plaintiff pleaded her retaliation claim under a hostile
work environment theory dating back to 1994. See Compl.

~

174. For the purpose of

determining whether a hostile work environment claim was timely filed, "[i]t does not matter ...
that some of the component acts of the hostile work environment fall outside the statutory time
period." Morgan, 536 U.S. at 117. It is enough that "an act contributing to the claim occurs
within the filing period" to allow a court to consider the entire period of the alleged hostile
environment. Id. Defendants do not argue that Plaintiffs retaliation claim is time-barred. See
Def.'s Mem. Supp. Mot. Dismiss at 15-17 (Dkt. No. 61) (discussing only discrimination claims).
Accordingly, Plaintiffs retaliation claim under Title VII is also timely.

V.

Failure to State a Claim
A. Legal Standard

When deciding a motion to dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6), a court must accept as true all well-pleaded facts and draw all
reasonable inferences in the light most favorable to the non-moving party. See Kassner v. 2nd
Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). Although factual allegations are
therefore afforded a presumption of truth, a court is "not bound to accept as true a legal
conclusion couched as a factual allegation." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "To survive a motion to dismiss,
the plaintiffs pleading must contain sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).

12

To state a claim of national origin discrimination under Title VII, Plaintiff must plead
facts showing that she suffered an "adverse employment action" based on her national origin.

Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). A plaintiff can survive a motion to dismiss
by pleading facts "that would create an inference that any adverse action taken by any defendant
was based upon her" national origin. Maldonado v. George Weston Bakeries, 441 F. App'x 808,
809 (2d Cir. 2011) (citing Patane, 508 F.3d at 112). Circumstances that can constitute an
adverse employment action include "a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices ... unique to a particular situation."

Williams v. R.H Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (quoting Galabaya v.
N. Y C. Bd. of Educ., 202 F .3d 636, 640 (2d Cir. 2000)) (quotation marks omitted) (alteration in

original).
Defendants state that "the Second Circuit has not yet resolved the question of whether a
plaintiff alleging Title VII discrimination must plead a prima facie case" under McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Def.'s Mem. Supp. Mot. Dismiss at 18 (Dkt.
No. 61). But in Swierkiewicz v. Sorema NA., the Supreme Court made clear that "[t]he prima
facie case under McDonnell Douglas ... is an evidentiary standard, not a pleading requirement."
534 U.S. 506, 510 (2002); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007)
(explaining Swierkiewicz was consistent with that holding); Brown v. Daikin America Inc., 756
F.3d 219, 228-29 (2d Cir. 2014) (expressing skepticism at claim that question is unsettled in
Second Circuit in light of Swierkiewicz). Accordingly, while a complaint alleging facts that
would satisfy the McDonnell Douglas standard for a primafacie case would survive a motion to
dismiss, it is not necessary to do so as long as the plaintiff plausibly alleges facts that would give
rise to an inference of unlawful discrimination.
To state a Title VII claim for retaliation, "a plaintiff must plead facts that would tend to
show that: (1) she participated in a protected activity known to the defendant; (2) the defendant
took an employment action disadvantaging her; and (3) there exists a causal connection between
13

the protected activity and the adverse action." Patane, 508 F.3d at 115 (citing Feingold v. New
York, 366 F.3d 138, 156 (2d Cir. 2004)). A "protected activity" is an action taken "to protest or

oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d
Cir. 2000), overruled on other grounds by Swierkiewicz, 534 U.S. at 510. "In assessing whether
a plaintiff has established that an adverse employment action was motivated by discriminatory
retaliation, 'there are two distinct ways for a plaintiff to prevail-either by proving that a
discriminatory motive, more likely than not, motivated the defendants or by proving both that the
reasons given by the defendants are not true and that discrimination is the real reason for the
actions."' Summa v. Hofstra Univ., 708 F.3d 115, 129 (2d Cir. 2013) (quoting Gordon v. NYC.
Bd of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).

Title VII's anti-retaliation provisions are broader than its antidiscrimination provisions,
and cover employer conduct that might not constitute a change in the "terms and conditions of
employment" necessary to state a discrimination claim. See Burlington N & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 64 (2006). "[A]ny action that 'could well dissuade a reasonable worker

from making or supporting a charge of discrimination' could constitute retaliation." Patane, 508
F.3d at 116 (quoting Burlington Northern, 548 U.S. at 57).
B. Discussion
Plaintiff alleges several adverse employment actions sufficient to underlie a
discrimination claim, but her Complaint fails to state a claim related to these actions because it
does not give rise to a plausible inference that the reason for these actions was her national
origin. As explained above, Plaintiff can state timely Title VII claims based on the following
alleged adverse employment actions: failure to promote to Disability Analyst 3 after she
interviewed on March 8, 2012, Compl.
on March 9, 2012, id.

~

~~

96, 98; Plaintiffs four-month suspension without pay

97; Plaintiffs assignment as the sole member of the Medical Assistance

Aid to the Disabled unit upon her return from suspension in July 10, 2012, id.
promote in August 2012, id.
id.

~

~

~

78; failure to

106; notices of discipline on April 2, 2012 and January 11, 2013,

113; her suspension on January 4, 2013,

id.~

123; refusal to transfer Plaintiff out of her unit
14

on November 30, 2011, and denial of the opportunity for overtime on July 31, 2012, id.

i!il

158, 162-64.
Regarding the failures to promote in March and August 2012, Plaintiff alleges that the
individuals who received the promotions to Disability Analyst 3 (either in English-language or
Spanish-language positions) were generally less qualified than she was, scored worse on the
promotion examination, and had less seniority. Compl. i!il 69, 99, 100, 108, 110. Plaintiff also
states that her Spanish language proficiency was higher than the individual chosen for the
Disability Analyst 3-Spanish Language position in August 2012, and though Plaintiff scored a
two out of three on the Spanish proficiency examination, the allegations construed liberally
implied that this result was falsified. Id.

i!il 101-05, 109.

Even if the allegations that Plaintiff was the most qualified individual for the job were to
prove true, that would not be enough to state a claim under Title VII. The statute does not
require employers to hire the most qualified candidate out of all applicants, but rather that the
choice of a candidate to fill the job was not based on illegal discrimination. See Lieberman v.

Gant, 630 F.2d 60, 67 (2d Cir. 1980); see also Tex. Dep 't of Cmty. Affairs v. Burdine, 450 U.S.
248, 259 (1981 ). There must be something in the allegations to raise an inference that the reason
Plaintiff was not promoted was her national origin. While being passed over for candidates with
lesser qualifications can contribute to such an inference, see Burdine, 450 U.S. at 259, in the
circumstances of this case this allegation alone does not give rise to that inference, first and
foremost because the Complaint contains no allegations that Plaintiff was passed over for
promotions in favor of individuals outside of her protected class. As Plaintiff explains in her
response to the motion to dismiss, Defendants promoted six individuals who allegedly scored
lower on the promotion examination than Plaintiff to the position of Disability Analyst 3Spanish Language positions. See Pl. 's Resp. to Mot. to Dismiss at 17 (Dkt. No. 71). Of those
six employees, Plaintiff states that five are of Puerto Rican descent. Id. Meanwhile, Plaintiff
raises no allegations regarding the national origins of those hired for the generic Disability
Analyst 3 positions when she applied; the only allegations in the Complaint that touch on this
15

matter are the statistics regarding the number of Hispanic Analysts in 2011, but these show little
about the hiring decisions made when Plaintiff applied. See Compl.

~

88. Being passed over for

a member of the same protected class tends to make an inference of discrimination on the basis
of membership in that class implausible. See Fleming v. MaxMara USA, Inc., 371 F. App'x 115,
117 (2d Cir. 2010); White v. Pacifica Found, 973 F. Supp. 2d 363, 381 (S.D.N.Y. 2013);
DeJesus v. Dist. One Cmty. Educ. Council, No. 08-cv-10666 (GBD), 2010 WL 3959624, at *4
(S.D.N.Y. Sept. 14, 2010).
To be sure, Plaintiff brought a lawsuit against her employer in the mid-l 990s alleging
Defendants' hiring and promotion practices were discriminatory against Hispanic employees,
and obtained what the Complaint characterizes as a favorable settlement. See Compl.

~~

29-

30, 84. The Complaint also contains statistics alleging continuing underrepresentation of
Hispanic workers in the Disability Analyst 3 position. Id

~~

85-88. However, Plaintiff also

explains that other Hispanic analysts (she does not mention their national origins) who applied
for promotions at the same time as her continued to be promoted to Disability Analyst-3 and
Disability Analyst-4 positions. Id.

~~

86-92. To the extent that successful settlement of a lawsuit

alleging racial discrimination nearly twenty years ago raises an inference that Plaintiff was at one
time discriminated against on the basis of her national origin (a distinction the Court will elide in
service of construing the Complaint liberally), it does not on its own continue to raise that
inference after such a significant passage of time when there is a lack of any other allegations
showing national origin discrimination. To hold otherwise would mean that an employee who
settles a discrimination suit with an employer could continuously subject that employer to
plausible claims of discrimination based on any subsequent adverse employment action. There is
no reason this should be so.
There is a similar lack of allegations of plausible allegations of national origin
discrimination surrounding the other adverse employment actions Plaintiff suffered. There is no
direct evidence of animus (such as discriminatory statements) on the part of the decision-makers
responsible for the disciplinary notices, suspensions, assignment to an allegedly lower-status unit
16

and refusal to transfer Plaintiff away from that unit, or refusal to schedule Plaintiff for overtime.
Nor is there any evidence that would lead to an inference that these actions were taken on the
basis of Plaintiffs Puerto Rican national origin. With regard to each adverse actions, there is no
allegation that similarly situated individuals not of Plaintiffs protected class were treated
differently. Indeed, there is no allegation linking Plaintiffs national origin to these actions at all,
other than ones stated in conclusory and implausible terms. Plaintiffs allegations of
discrimination must therefore be dismissed.
Plaintiffs allegations of unlawful retaliation stand on different footing. She pleads her
retaliation claim on the theory of hostile work environment, but construing this allegation
liberally in light of Plaintiffs pro se status, it seems more accurate to say that Plaintiff is alleging
that Defendants undertook a retaliatory "course of conduct" against her. See Rivera v. Rochester

Genesee Reg'! Transp. Dep't, 743 F.3d 11, 25 (2d Cir. 2012) (quoting Tepperwien v. Entergy
Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011)). Plaintiff filed two previous
lawsuits that could serve as the basis for a claim of illegal retaliation, one in federal court in or
around 1994 and one in 2010.
The passage of time since Plaintiffs 1994 would make any finding ofretaliation unlikely.
With the exception of Plaintiffs placement on the Medical Assistance Aid to the Disabled team
in 2002, see Compl.

~

77, all of Plaintiffs allegations not related to alleged disabilities are from

2008 or later (and the bulk are from after 2010). Even if Plaintiffs requests for disability
accommodations can be considered part of a "hostile work environment" created by Defendants,
her earliest allegation relating such accommodations is from September 2000, six years after she
filed the suit and a year after it settled. That gap in time is too much to raise an inference of
retaliation. See, e.g., Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d
590, 593 (2d Cir. 1988); Nicastro v. Runyon, 60 F. Supp. 2d 181, 185 (S.D.N.Y. 1999).
Plaintiff pleaded three causes of action in her state lawsuit filed on April 10, 2010:
disability discrimination, age discrimination, and retaliation based on her 1994 lawsuit. See Dkt.
No. 62-1 at 16-19. Filing a lawsuit alleging age discrimination and disability discrimination is
17

not a protected activity under Title VII, because that statute protects employees against
retaliation only for opposing a "practice made an unlawful employment practice by this
subchapter." 42 U.S.C. § 2000e-3(a). Neither age nor disability is protected by Title VII, and
Plaintiff's ADA claim is barred by the Eleventh Amendment, as discussed above. See Risco v.

McHugh, 868 F. Supp. 2d 75, 111 (S.D.N.Y. 2012) ("[A] complaint about disability-related
discrimination cannot form the basis of a retaliation claim under Title VII.").
However, retaliation against an employee for opposing discrimination is an unlawful
employment practice under Title VII, so under the terms of Title VII a Plaintiff is protected for
opposing retaliation against her for filing a retaliation suit. Given that the filing of this suit
occurred so long before Plaintiff filed her EEOC charge, however, the only way for her to state a
timely claim for retaliation based on that lawsuit is to show a continuing violation. See Lambert

v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), abrogated on other grounds by Kasten v. SaintGobain Performance Plastics Corp., 131 S. Ct. 1325, 1330-31 (2011). However, even that
doctrine applies only to "specific discriminatory policies or mechanisms," and "multiple
incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or
mechanism do not amount to a continuing violation." Lambert, IO F.3d at 53. Here, there are
allegations that Plaintiff was retaliated against several times through the use of notices of
discipline and failure to promote, but there is no fair inference that these actions were the result
of a continuing policy on the part of Defendants. Moreover, Plaintiff's treatment following
initiation of her state suit does not rise to the level of creating a hostile work environment, which
requires a showing that harassment was so "severe and pervasive" that it altered the conditions of
her employment and created an "abusive working environment," and that "the workplace was so
severely permeated with discriminatory intimidation, ridicule, and insult that the terms and
conditions of her employment were thereby altered." Alfano v. Costello, 294 F.3d 365, 373 (2d
Cir. 2002). While Plaintiff complains of unfair treatment, her allegations do not plausibly
demonstrate this sort of abuse and harassment.

18

In their filings in support of and in opposition to the motion to dismiss, both Defendants
and Plaintiff raise the possibility that the EEOC charge underlying this case could be construed
as another protected action based on which Plaintiff could claim retaliation. See Def. 's Mem.
Supp. Mot. Dismiss at 26 (Dkt. No. 61); Pl.'s Resp. to Mot. to Dismiss at 13 (Dkt. No. 71). In
the first instance, Plaintiff has not filed an EEOC charge based on any events that have occurred
since her previous EEOC charge, so this claim is not administratively exhausted. Regardless,
Defendants correctly argue that Plaintiff did not allege retaliation based on that EEOC charge in
her Complaint. Even giving the Complaint a liberal construction in light of Plaintiffs pro se
status, the only protected activities on which she bases her retaliation charges are her federal
lawsuits. Plaintiff cannot amend her Complaint in her opposition to a motion to dismiss. See
Lazaro v. Good Samaritan Hosp., 54 F. Supp. 2d 180, 184 (S.D.N.Y. 1999) (citing O'Brien v.
Nat'! Prop. Analyst Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989). Plaintiffs retaliation
claim must therefore be dismissed.

VI.

Conclusion

For the foregoing reasons, Defendants' motion to dismiss the Second Amended
Complaint is GRANTED.
This resolves Dkt. No. 60. Docket No. 46 is administratively denied as moot. The Clerk
is requested to terminate the case.

SO ORDERED.

Dated:

5'\\ ·

,2014

New York, New York

19