Peguero-Miles v. City University of New York et al

Filing 59

MEMORANDUM AND ORDER granting in part and denying in part 39 Motion to Dismiss. As set forth within, Defendants' motion to dismiss Plaintiff's claims under the NYSHL and NYCHRL is GRANTED; Defendants' motion to dismiss Plaintiff 9;s claims under Title VII is DENIED; and Defendants' motion to dismiss Plaintiff's claims under Sections 1981 and 1983 is DENIED. This Memorandum and Order resolves Dkt. No. 39. (Dkt. No. 36 was resolved on November 6, 2013, Dkt. No. [50 ].) In light of the resolution of the Defendants' motion that prompted the stay of discovery entered in this matter on October 2, 2013, the stay is hereby lifted and the matter is referred back to Magistrate Judge Andrew J. Peck for further general pre-trial proceedings. SO ORDERED. (Signed by Judge Alison J. Nathan on 9/25/2014) (ajs)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DATEF-IL-E-D:..,,..S""""EP_2_5_2_01~4

Anarosa Peguero-Miles,
Plaintiff,
13-CV-1636

-vMEMORANDUM AND
ORDER

City University of New York, et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Before the Court is the Defendants' 1 motion to dismiss Plaintiff's Third Amended
Complaint. In her Complaint, Plaintiff brings state-law claims under New York's Human Rights
Law ("NYSHRL"), city-law claims under New York City's Human Rights Law ("NYCHRL"),
and federal-law claims under Title VII, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. §§ 1981 and
1983. Plaintiff also brought a claim under Section 301 of the Labor Management Relations Act,
29 U.S.C. § 1985, against Defendant Professional Staff Congress/CUNY, but she voluntarily
dismissed this claim. 2 Dkt. No. 50. For the reasons discussed below, the motion is GRANTED
in part and DENIED in part.
I.

BACKGROUND
The following facts are drawn from Plaintiff's Complaint, and are presumed true and

construed in Plaintiff's favor on this motion to dismiss. Kassner v. 2nd Ave. Delicatessen, Inc.,
496 F.3d 229, 237 (2d Cir. 2007).

1

The remaining Defendants include: City University of New York Borough of Manhattan Community College;
State University ofNew York Manhattan Educational Opportunity Center; Rodney Alexander; Angela Rita-Farias;
and Walida Najeeullah.
2
Plaintiff also made allegations of slander suggesting a claim on that basis under New York state law, but clarified
in her opposition papers that she "did not file a complaint of slander under New York State" law. Opp. at 16.

1

Plaintiff describes herself as a "bilingual, dark skinned, petite Dominican woman."
Comp!. at 14. She began working for the State University of New York Manhattan Educational
Opportunity Center ("MEOC"), which is administered by the City University of New York
("CUNY"), in December 2009 as a Food Stamp Employment and Training Job Developer in the
Counseling Department. Compl. at 15. The Counseling Department was managed at the time by
Defendant Angela Rita-Farias. In February 2010, Plaintiff assumed the duties of the MEOC
Career Job Developer and was then officially appointed to that position from April 2010 through
August 2010. Compl. at 15. 3 For a brief period of time in August 2010, she reported to both the
Counseling Department, managed by Rita-Farias, and the Research Department, managed by
Steven Jacobs. Comp!. at 15. By the end of August 2010, she reported only to Jacobs and
retained the title of Job Developer. Compl. at 15. As a Job Developer, Plaintiffs duties
included training students to find suitable work, conducting resume and cover letter writing
workshops, cultivating relationships with various employers, and finding employment for
students. Comp!. at 15. She received two satisfactory performance evaluations from Jacobs on
February 22, 2011 and Rita-Farias on June 14, 2010. Compl. at 15, 39. 4
Plaintiff alleges that during her employment at the MEOC, she was subjected to
numerous discriminatory remarks and adverse employment actions after she complained about
these comments. She provides a long list of statements allegedly attributed to Rita-Farias and
other MEOC employees that derogatively discuss Plaintiffs national origin 5 and race 6 as well as

3

Plaintiff's Complaint states that these dates occurred in 2011, but this is inconsistent with other facts alleged in
Plaintiff's Complaint, and so the Court assumes that this was a typographical error; Defendants' moving papers also
suggest that the relevant dates stated here occurred in 2010. Def. BR. at 4.
4
Plaintiff attached what appears to be a satisfactory performance evaluation dated January 24, 2011 rather than
February 22, 2011.
5
See, e.g., Comp!. at 17 ("I hate Dominicans. Dominicans talk too much shit and are full of shit. All the time."); ("I
don't like them, I hate them.");
6
See, e.g., Comp!. at 18 ("N***ers don't know shit; that is why they come to me."); ("N***ers and Dominicans are
ignorant."); Comp!. at 20 ("You are a voodoo doll, because a voodoo doll is black.").

2

others' national origin, 7 race, and religion 8• The exact chronology of Plaintiffs complaints
regarding these comments is unclear, but she alleges that she may have made her first "informal"
complaint about Rita-Farias's comments in August 2010, Compl. at 6, which is around the time
her supervisor changed from Rita-Farias to Jacobs. Plaintiff alleges that she lodged additional
complaints at various times to the following individuals: Defendant Rodney Alexander, the
Executive Director of the MEOC; Jacobs; Sadie Bragg, Borough of Manhattan Community
College ("BMCC") Vice President; Iyana Titus, BMCC's Affirmative Action Counselor;
Defendant Walida Najeeullah, MEOC's Operations Coordinator; and union representatives.
Compl. at 16, 20, 26. 9 Plaintiff further alleges that other MEOC employees made similar
complaints to Alexander, including Renetta Mason, Steve Elson, and Jannet Rivera, and that
Alexander failed to address any of the complaints until after Plaintiff raised her complaints with
Titus. Compl. at 27. According to Plaintiffs Complaint, Rivera was not reappointed five
months after she filed a complaint and she later settled a case of retaliation filed against CUNY.
Compl. at 20.
Plaintiff alleges that she was shut out ofRita-Farias's inner circle after she complained
about discrimination and a hostile work environment and was similarly shut out of certain work
projects and committees. Compl. at 20. She also claims that shortly thereafter, Alexander came
to her and told her that "I hear you're making comments about discrimination. We don't
discriminate here at the MEOC. Come on, stop saying those things." Compl. at 26.
The exact sequence of events leading to Plaintiffs termination is less than clear, but the
chronology as provided in Plaintiffs Complaint appears to be as follows. On or about February
10, 2011, Plaintiff had a meeting with Alexander, Najeeullah, and Jacobs at which she allegedly
stated that she was a victim of discrimination. Compl. at 26. On February 25 or 28, 2011,
7

See, e.g., Comp!. at 19 (referring to those of Caribbean origin, "Arlene Broome should go to school to get rid of
that accent"); ("Peruvians are like Dominicans. They always cheat on their girls.").
8
See, e.g.,, Comp!. at 19 ("Erick Neutuch is just a fucking kiss ass Jewish boy ... ");("I dated one of them and he
only cared about money.").
9
Plaintiff alleges that she filed complaints on numerous dates ranging from January 13, 2010 through March 25,
2011. Comp!. at 27-29.

3

Alexander sent to Plaintiff an email detailing "several troubling incidents" and complaints about
Plaintiffs behavior. Compl. at 34; Rodriguez Deel. Ex. E. Then on March 3, 2011, Plaintiff had
a meeting with Alexander to discuss the issues raised in the email. Compl. at 29; Rodriguez
Deel. Ex. F. Plaintiff alleges that she then met with Titus on March 11, 2011 to file a complaint
of discrimination. Compl. at 29. On March 15, 2011, Alexander issued a memo reminding
Plaintiff to treat her colleagues with civility and forbearance. Compl. at 29. On March 17, 2011
Plaintiffs husband was escorted offMEOC premises, and on March 25, 2011, Plaintiff was
placed on administrative leave before she was terminated on July 1, 2011. Compl. at 29. Thus,
she alleges that two weeks after she filed a formal complaint she was effectively terminated.
Compl. at 23. Plaintiff also alleges that Rita-Farias had some part in Alexander's decision not to
reappoint Plaintiff. Compl. at 16. Defendants allegedly initially told Plaintiff on July 1, 2011
that she was terminated because of budget cuts, but on September 8, 2011, the Defendants
allegedly changed their position and informed Plaintiff that she was refused reappointment
because of a series of "troubling incidents." Compl. at 13.
On April 4, 2011, Plaintiff filed a Complaint with the New York State Department of
Human Rights. Compl. at 9; Rodriguez Deel. Ex. C at 1. Following a hearing at which
witnesses testified, the administrative law judge made factual findings and concluded that in light
of the evidence, Defendants "credibly showed that Complainant's employment was terminated
because of Complainant's behavior towards her co-workers." Rodriguez Deel. Ex. C at 1. The
DHR endorsed the administrative law judge's findings on September 28, 2012. Rodriguez Deel.
Ex. D at 2. At some point, Plaintiff filed a complaint with the Equal Employment Opportunity
Commission ("EEOC"), which closed its case on Plaintiffs claim because the "EEOC has
adopted the findings of the state or local fair employment practices agency that investigated this
charge." Compl. at 12. The EEOC then issued to Plaintiff a right-to-sue letter on December 12,
2012, Compl. at 12, and Plaintiff timely filed this suit on March 11, 2013 within 90 days of
receiving that letter, Dkt. No. 2.

4

II.

LEGALSTANDARD
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 Krassner, 496
F.3d at 237. Thus, factual allegations are presumed true, but a court is "not bound to accept as
true a legal conclusion couched as a factual allegation." Bell Atl. 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). "Further, [the Court] must interpret the factual allegations
of a pro se complaint 'to raise the strongest arguments that they suggest."' Grullon v. City of

New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (quoting Harris v. City ofN. Y, 607 F.3d 18, 24
(2d Cir. 2010)).
Claims for employment discrimination are analyzed under the burden-shifting framework
of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), which requires a plaintiff to first
establish a prima facie case of discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d
Cir. 2010) (citing Holcomb v. Iona College, 521F.3d130, 138 (2d Cir. 2008); Back v. Hastings

on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004)). But "[t]he Supreme Court
has held ... that 'the requirements for establishing a prima facie case under McDonnell Douglas
[do not] apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to
dismiss."' Williams v. N. Y City Hous. Auth., 458 F.3d 67, 71 (2d Cir. 2006) (quoting

Swierkiewicz v. Sorema, NA., 534 U.S. 506, 510 (2002)). Rather, plaintiffs need only satisfy the
pleading requirements of Federal Rule of Civil Procedure 8( a) as interpreted by the Supreme
Court's holdings in Twombly and Iqbal to survive a motion to dismiss. Barbosa v. Continuum

5

Health Partners, Inc., 716 F. Supp. 2d 210, 214-15 (S.D.N.Y. 2010) (discussing the interplay of
Swierkiewicz, Twombly, and Iqbal). Nonetheless, "the elements of the primafacie case [still]
'provide an outline of what is necessary to render a plaintiffs ... claims for relief plausible,"'
and so "courts 'consider these elements in determining whether there is sufficient factual matter
in the complaint which, if true, gives Defendant a fair notice of Plaintiffs claim and the grounds
on which it rests."' Cruz v. N. Y. State Dep 't of Corr. & Cmty. Supervision, No. 13 Civ. 1335
(AJN), 2014 U.S. Dist. LEXIS 77428, at *5-6 (S.D.N.Y. June 4, 2014) (quoting Henry v. NYC

Health & Hosp. Corp., No. 13 Civ. 6909 (PAE), 2014 U.S. Dist. LEXIS 32821, at *9-10
(S.D.N.Y. Mar 10, 2014)).
Finally, "[a] court may take judicial notice of 'the status of other lawsuits in other courts
and the substance of papers filed in those actions."' Peoples v. Fischer, No. 11 Civ. 2694 (SAS),
2012 U.S. Dist. LEXIS 62428, at *12 (S.D.N.Y. May 3, 2012) (quoting Schenk v.

Citibank/Citigroup/Citicorp, No. 10 Civ. 5056, 2010 U.S. Dist. LEXIS 130305, at *5 (S.D.N.Y.
Dec. 9, 2010) ); see also Conopco, Inc. v. Roll Int 'l, 231 F .3d 82, 86-87 (2d Cir. 2000) (taking
judicial notice of final judgment entered and notice of appeal in state court).

III.

DISCUSSION
A.

State- and City-Law Claims

Plaintiff brings claims for discrimination, retaliation, and hostile work environment under
the NYSHRL and the NYCHRL. However, Plaintiff already brought these same claims before a
state administrative body in the form of the New York State Department of Human Rights. See
Compl. at 9; Rodriguez Deel. Ex. B (Department of Human Rights Verified Complaint); Ex. C.
(Recommended Findings of Fact, Opinion and Decision, and Order); Ex. D. (Notice and Final
Order). Plaintiff does not contest the fact that she raised these claims before the Department of
Human Rights, only that she should not be barred from bringing them now.

6

New York Executive Law § 297(9) and the New York City Administrative Code 8502(a) both provide private rights of action for unlawful discriminatory practices; indeed, the
provisions are essentially identical. York v. Ass 'n of the Bar of the City of NY, 286 F.3d 122,
127 (2d Cir. 2002). The State's statute and the City's code also contain an election-of-remedies
provision, which has been consistently interpreted as barring the commencement of an action in
court after a party has filed a complaint with the Department of Human Rights concerning the
same discrimination, unless the complaint was dismissed for administrative convenience. Id.
(citing Moodie v. Fed. Reserve Bank, 58 F.3d 879, 882 (2d Cir. 1995)). "Furthermore, there is
no question that the election-of-remedies provisions at issue here apply to federal courts as well
as state." Id. (citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir.
2000)).
Because Plaintiff elected to bring her state- and city-law claims for discrimination before
the Department of Human Rights as an initial matter, she is barred by the very terms of the
statute and code creating those claims from bringing them before this federal court now. Id.;
Moodie, 58 F.3d at 882. More accurately, the election-of-remedies provision has been
interpreted as a jurisdictional bar that deprives courts of jurisdiction to hear a case where a
complaint was previously filed before the Department of Human Rights. Moodies, 58 F.3d at
884. And "a state law depriving its courts of jurisdiction over a state law claim also operates to
divest a federal court of jurisdiction to decide the claim." Moodie, 58 F.3d at 884 (citations
omitted). Having concluded that this Court lacks jurisdiction to hear Plaintiffs state- and citylaw claims based on the election-of-remedies provision, the Court need not address Defendants'
alternative argument that she also failed to satisfy the notice of claim requirements under the
statute and code.

B.

Federal Claims

Plaintiff also brings federal claims under Title VII and Sections 1981 and 1983 for
discrimination on the basis of race and national origin, hostile work environment, and retaliation.

7

Plaintiff's federal claims are analyzed under similar frameworks and so are discussed together
unless otherwise noted. See, e.g., Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004)
(noting that "[m]ost of the core substantive standards that apply to claims of discriminatory
conduct in violation of Title VII are also applicable to claims of discrimination in employment in
violation of§ 1981 or the Equal Protection Clause." (citing Whidbee, 223 F .3d at 69 (§ 1981 );

Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (§ 1983); Sorluco v. NY City Police Dep 't,
888 F.2d 4, 6-7 (2d Cir. 1989) (same)). The Court concludes that Plaintiff alleges sufficient facts
to state each of these claims and finds Defendants' arguments to the contrary unavailing.
1.

Employment Discrimination

A prima facie case of employment discrimination requires the plaintiff to "show: (i)
membership in a protected class; (ii) qualifications for the position; (iii) an adverse employment
action; and (iv) circumstances surrounding that action giving rise to an inference of
discrimination." Collins v. NY City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002) (citing

Norville v. Staten Island Univ. Hosp., 196 F .3d 89, 95 (2d Cir. 1999); Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)). As noted above, Plaintiff need not actually establish
her prima facie case at the motion to dismiss stage, but the elements to be proven at trial will
guide the Court's determination as to whether she alleges sufficient factual matter to give
Defendants fair notice of her claim and the ground on which it rests.

Defendants acknowledge

that Plaintiff alleges she "is a member of a protected class on the basis of her color and national
origin, performed her job duties satisfactorily as a Job Developer and that she was terminated
from her position at MEOC." Def. Br. at 14. But Defendants contend Plaintiff fails to state a
claim upon which relief can be granted because she alleges no circumstances giving rise to an
inference of discrimination for three reasons.
First, Defendants contend no inference of discrimination can be found since the
decisionmaker responsible for terminating Plaintiff's employment is of the same protected class
as Plaintiff. As a factual matter, Defendants only contend that the decisionmaker who terminated

8

Plaintiff, Alexander, is African-American, not that he is of Dominican national origin. Thus,
Alexander is not in the exact same protected class as Plaintiff. Moreover, the case relied on by
Defendants, Tucker v. New York City, merely states that an inference of discrimination is
undermined by the fact that the decisionmaker is of the same protected class as Plaintiff. No. 05
Civ. 2804 (GEL), 2008 U.S. Dist. LEXIS 76900, at* 14 (S.D.N.Y. Sept. 30, 2008) (citing Fosen

v. N. Y Times, No. 03-CV-3785 (KMK)(THK), 2006 U.S. Dist. LEXIS 75662, at* 14 (S.D.N.Y.
Oct. 11, 2006)). Regardless of whether an inference is or is not undermined, the fact that
Plaintiff was of the same protected class as the decisionmaker who terminated her is not
dispositive. For example, courts have recognized the "cat's paw" theory of discrimination under
which "an employer may be held liable for employment discrimination based on the
discriminatory animus of an employee who influenced, but did not make, the ultimate
employment decision." Staub v. Proctor Hosp., 131S.Ct.1186, 1189 (2011). Under such a
theory, "if a supervisor performs an act motivated by [discriminatory] animus that is intended by
the supervisor to cause an adverse employment action, and if that act is a proximate cause of the
ultimate employment action, then the employer is liable" for employment discrimination. Staub,
131 S.Ct. at 1194 (internal footnotes omitted). Here, Plaintiff alleges facts indicating that her
former supervisor, Rita-Farias, demonstrated racial and national origin animus and that
individuals other than Alexander were responsible for the complaints against her in the
"Troubling Issues Memo," which appears to have been Alexander's primary basis for
terminating Plaintiff. Thus, the fact that Alexander is African-American does not foreclose
Plaintiffs claims at this stage.
Second, Defendants cite authority from other circuits for the proposition that Plaintiffs
claim fails to raise an inference of discrimination because she does not allege "with particularity"
when various discriminatory comments were made. Def. Br. at 15 (citing Grasty v. World

Flavors, Inc., No. 11-1778, 2011 U.S. Dist. LEXIS 89277, *16 (E.D. Pa. Aug. 11, 2011);
Thomas v. Pocono Mountain School Dist., No. 3:10-CV-1946, 2011 U.S. Dist. LEXIS 65792, at
*16 (M.D. Pa. June 21, 2011)). But Defendants cite no authority from this Circuit, nor is the
9

Court aware of any such authority, that would support a heightened pleading requirement
necessitating the dates and times when allegedly discriminatory remarks occurred. In fact, the
Second Circuit expressly held that "'the Federal Rules do not contain a heightened pleading
standard for employment discrimination suits."' Kassner, 496 F.3d at 237 (quoting

Swierkiewicz, 534 U.S. at 514-15). Here, Plaintiff detailed a number of discriminatory
comments allegedly made by Rita-Farias and other MEOC employees. On a motion to dismiss,
she is not required to state the exact dates and times when such comments were made. In any
event, the Court notes that Plaintiff's allegations would likely still satisfy the "particularity"
requirement stated in the cases the Defendants rely on. See Grasty, 2011 U.S. Dist. LEXIS
89277, at *16-17 (finding that plaintiff satisfied particularity requirement where plaintiff "avers
that his supervisors referred to him as 'little black boy' and 'little black guy' on multiple
occasions"); Thomas, 2011 U.S. Dist. LEXIS 65792, at *16 (stating that "pleader may be able to
show [that he faced discrimination] by particularly alleging (for example) who made specific
comments in which evaluation, and stating the content of the comment").
Third, Defendants argue that Plaintiff fails to allege an inference of discrimination
because Rita-Farias hired Plaintiff and was once social with her. It is true that the Second Circuit
has noted discrimination may be unlikely where, for example, "the person who made the
decision to fire was the same person who made the decision to hire," and that "[t]his is especially
so when the firing has occurred only a short time after the hiring." Grady v. Affiliated Cent.,

Inc., 130 F.3d 553, 560 (2d Cir. 1997) (collecting cases). But Grady and the case relied on by
Defendants were decided at the summary judgment stage, not a motion to dismiss. The fact that
Plaintiff was hired and fired by the same person may make an inference of discrimination less
likely, not implausible. Moreover, unlike the plaintiff in Grady, Plaintiff worked for more than a
year before she was fired, thus weakening any inferential force of this fact.
In sum, Defendants acknowledge that Plaintiff is a member of a protected class,
performed her job duties satisfactorily, and was terminated from her position at MEOC, and they
offer no convincing arguments as to why she alleges no circumstances giving rise to an inference
10

of discrimination. Therefore, Defendants' motion to dismiss Plaintiffs claims of employment
discrimination are DENIED.

2.

Retaliation

To make out a prima facie case of retaliation, Plaintiff must show "( 1) participation in a
protected activity known to Defendants; (2) an adverse employment action; and (3) a causal
connection between the two." Schanjield v. Sojitz Corp. ofAm., 663 F. Supp. 2d 305, 341
(S.D.N.Y. 2009) (collecting cases). Protected activity covers any "action taken to protest or
oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d
Cir. 2000). Plaintiff alleges that she complained about Rita-Farias's discriminatory conduct on
several occasions and, more concretely, that she informed Alexander, Najeeullah, and Jacobs that
she was the victim of discrimination on or about February 10, 2011 and was then placed on
administrative leave on or about March 25, 2011 before being terminated on July 1, 2011.
Compl. at 26, 29. It is plausible that a termination coming so close on the heels of a complaint is
causally connected to the complaint. See, e.g., Sulehria v. City of N. Y, 670 F. Supp. 2d 288, 307
(S.D.N.Y. 2009) ("Plaintiff may establish a causal connection either directly, through proof of
retaliatory animus, or indirectly, through circumstantial evidence that, for example, the adverse
action followed close on the heels of the protected activity, or that the employer also took
adverse action against other employees who engaged in protected conduct." (citing Gordon v.

N. Y City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000); Sumner v. US. Postal Serv., 899 F.2d
203, 209 (2d Cir. 1990)).
In response, Defendants contend only that "the [Complaint] itself and documents it
attaches and incorporates by reference provide a credible, non-discriminatory explanation [for]
Plaintiffs termination which critically undermines Plaintiffs theory of retaliation." Def. Br. at
17. But, again, undermining a theory ofretaliation is not the same as failing to state a claim for
retaliation. Moreover, Defendants primarily point to the "Troubling Issues" memo detailing
complaints about Plaintiffs behavior as undermining her theory of retaliation. Plaintiff alleges,

11

however, that the events detailed in the "Troubling Issues" memo were fabricated by Najeeullah
after Plaintiff complained of discrimination. Plaintiffs allegation, which the Court must accept
as true on a motion to dismiss, thus counters Defendants' only argument against her retaliation
claim.
Therefore, because Plaintiff states sufficient facts to allege a claim of retaliation, the
Defendants' motion to dismiss her claims ofretaliation is DENIED.

3.

Hostile Work Environment

To establish a claim for hostile work environment, a Plaintiff must establish that "( 1) she
is a member of a protected class; (2) she suffered unwelcome harassment; (3) she was harassed
because of her membership in a protected class; and (4) the harassment was sufficiently severe
or pervasive to alter the conditions of employment and create an abusive work environment."
Caban v. City of NY, No. 11 Civ. 3417 (SAS), 2012 U.S. Dist. LEXIS 170981, at *11-12
(S.D.N.Y. Nov. 30, 2012) (citing Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567,
584 (S.D.N.Y. 2008)).
Defendants do not dispute that Plaintiff sets forth sufficient facts to support a claim for
hostile work environment. Rather, Defendants cite Frieson v. NASDAQ/AMEX Mkt. Grp., No.
96 Civ. 7102 (WK), 2001 U.S. Dist. LEXIS 2665, at *4 (S.D.N.Y. Mar. 14, 2001), for the
proposition that Plaintiff must plead discriminatory statements with specificity to state a claim
for hostile work environment. But in Frieson, Judge Knapp held that a plaintiff failed to state a
claim for hostile work environment where "[a]ll plaintiff states is that she overheard numerous
racially insensitive remarks. She does not identify a single remark nor the person(s) who uttered
any of them." 2001 U.S. Dist. LEXIS 2665, at *4. Plaintiff, in contrast, points to dozens of
remarks on an ongoing basis made by Rita-Farias that pejoratively discuss Plaintiffs race and
national origin, as well as the race, national origin, and religion of others. 10 Plaintiff further
alleges that after she first began to complain about these comments, Rita-Farias responded by

10

See footnotes 6-9 for a sample of the many comments that Plaintiff alleges were made.

12

essentially shunning Plaintiff, removing her from certain work-related committees, and
excluding her from certain projects. Furthermore, when she complained to Alexander, he
allegedly told her to stop complaining. Thus, the facts that Plaintiff alleges are sufficient to
plausibly state a claim for hostile work environment. See, e.g., Awad v. City of NY, No. 13 Civ.
5753, 2014 U.S. Dist. LEXIS 63234, at *20-21 (E.D.N.Y. 2014) (denying motion to dismiss
hostile work environment claim based on allegations that supervisor made harassing and
discriminatory comments, such as comparing Egyptian plaintiff to terrorists, over course of two
years and excluded plaintiff from certain projects and meetings); Patterson v. Xerox Corp., 732
F. Supp. 2d 181, 191-92 (W.D.N.Y. 2010) (denying motion to dismiss hostile work environment
claim based on plaintiffs allegations ofrepeated racial, sexual, and ethnic statements including
expressing a dislike for people of plaintiffs gender and race); see also La Grande v.
DeCrescente Distrib. Co., 370 F. App'x 206, 210-11 (2d Cir. 2010) (reversing motion to dismiss
where plaintiff alleged, inter alia, racial comments from coworkers and then, following
complaint to human resources, was told his complaint was not "sufficient" and had his workload
doubled).
Therefore, because Plaintiff pleads sufficient facts to put Defendants on notice of her
claims and the grounds on which they rest, Defendants motion to dismiss Plaintiffs claims for
employment discrimination, retaliation, and hostile work environment under Title VII is
DENIED. The above analysis applies equally to Plaintiffs claims under Sections 1981 and 1983
except insofar as discussed in Part III.B.4.

4.

Additional Arguments Regarding Plaintiff's Claims under Sections
1981 and 1983

As noted above, Plaintiffs claims under Sections 1981 and 1983 overlap substantially
with her Title VII claims, but Defendants raise separate arguments specific to Sections 1981 and
1983 that the Court addresses here. See, e.g., Patterson, 375 F.3d at 225-27 (describing the ways
in which claims under Sections 1981 and 1983 differ from Title VII claims).

13

First, Defendants correctly point out that to succeed on a claim under Sections 1981 and
1983, Plaintiff must establish that the discrimination was intentional. Id. at 226. But a finding of
"invidious discriminatory purpose may often be inferred from the totality of the relevant facts,"

Washington v. Davis, 426 U.S. 229, 242 (1976), and Plaintiff alleges sufficient relevant facts to
set forth a plausible claim of intentional discrimination based on her allegations of racially and
ethnically charged statements and an adverse employment action following complaints regarding
those statements. Moreover, "[s]uch a finding may [also] be supported by evidence that the
defendant has given conflicting reasons for its treatment of the plaintiff," Tolbert v. Queens

College, 242 F.3d 58, 70 (2d Cir. 2001) (citations omitted), and Plaintiff alleges that Defendants
initially indicated they fired her for budgetary reasons and then changed the reason to complaints
about her unprofessional behavior. Compl. at 13.
Second, Defendants contend that Plaintiff cannot state a claim under Section 1983 against
the individual defendants because she does not allege that they acted under color of state law.
Def. Br. at 21. "A person acts under color of state law when exercising power 'possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the authority of
state law."' Gonzalez v. Kahan, No. CV 88-922 (RJD), 1996 U.S. Dist. LEXIS 22715, at *5
(E.D.N.Y. Nov. 27, 1996) (quoting Polk County v. Dodson, 454 U.S. 312, 317 (1981)). Plaintiff
alleges that individuals employed by CUNY used their position to discriminate against her.
Because CUNY is an institution of New York State, its employees may be clothed with the color
of state law. See, e.g., id. at *5 ("As a result of his employment relationship with CUNY, an
institution of New York State, Professor Kahan's actions as a tenured University professor are
clothed with the color of state law"). Defendants offer no authority to support their argument to
the contrary other than to suggest that Plaintiff did not use the magic phrase "under color of state
law." While it is true that "mere employment by the state does not mean that the employee's
every act can properly be characterized as state action," Patterson, 375 F.3d at 230 (citation
omitted), and it may well be the case that the particular legal structure of the MEOC or the
individual Defendants' roles within the organization provide a legal basis to refute the claim that
14

they were acting under color of state law, Defendants offer no such arguments in their motion to
dismiss.
Third, Defendants assert that Plaintiffs Section 1983 claim against CUNY and MEOC
fails because she offers no facts tending to show that any of the alleged discriminatory conduct
occurred due to an official policy or custom as required by Monell v. NY. City Dep 't of Soc.

Servs., 436 U.S. 658, 690-95 (1978). Def. Br. at 21. "To show a policy, custom, or practice, the
plaintiff need not identify an express rule or regulation." Patterson, 375 F.3d at 226 (citing

Sorlucco v. NY. City Police Dep 't, 971 F.2d 864, 870 (2d Cir. 1992)). Rather, "[i]t is sufficient
to show, for example, that a discriminatory practice of municipal officials was so persistent or
widespread as to constitute a custom or usage with the force of law, or that a discriminatory
practice of subordinate employees was so manifest as to imply the constructive acquiescence of
senior policy-making officials." Id. (internal quotation marks and citations omitted). Moreover,
"[a] policy, custom, or practice may be inferred where 'the municipality so failed to train its
employees as to display a deliberate indifference to the constitutional rights of those within its
jurisdiction."' Id. (quoting Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996)).
Defendants argue that "the mere assertion ... that a municipality has such a custom or
policy is insufficient in the absence of allegations of fact tending to support, at least
circumstantially, such an inference." Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.
1995) (quoting Dwares v. City of NY., 985 F.2d 94, 100 (2d Cir. 1993)). But their contention
that Plaintiff merely asserts a custom or policy without any factual details is inaccurate.
Plaintiffs Complaint alleges widespread and persistent discriminatory comments coming from
her supervisor, numerous complaints to senior officials that went unheeded-including an
allegation that Alexander, MEOC's Executive Director, told her to stop complaining-and
similar complaints made by colleagues, including one who was subsequently fired. The Second
Circuit has recognized that a policy or custom "may be inferred from the informal acts or
omissions of supervisory municipal officials," and, moreover, "inaction such as the persistent
failure to discipline subordinates who violate persons' civil rights could give rise to an inference
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of an unlawful municipal policy of ratification of unconstitutional conduct." Id. (internal
citations and quotation marks omitted); see also Ricciuti v. N.YC. Transit Auth., 941F.2d119,
123 (2d Cir. 1991). For example, the Second Circuit recently affirmed ajury verdict based on
testimony from plaintiff that he suffered "frequent and severe" discriminatory comments and
harassment from coworkers over a period of time and that his complaints to supervisors went
unheeded. Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 63 (2d Cir. 2014). The Second
Circuit concluded that "the continuation of the harassment in several forms over time certainly
supports the reasonableness of the conclusion that [the supervisor's] 'fail[ure] properly to
investigate and address allegations' of harassment allowed for 'the conduct [to] become[] an
accepted custom or practice of the employer."' Id. at 63 (quoting Gierlinger v. N. Y State Police,
15 F.3d 32, 34 (2d Cir. 1994)). Assuming, as the Court must on a motion to dismiss, that, as
alleged, Plaintiffs employer disregarded complaints of discrimination, discouraged employees
from complaining about discrimination, and fired other individuals who similarly complained of
discrimination, Plaintiff does not merely assert that a policy or custom exists but instead alleges
facts from which, at least circumstantially, such a policy can be inferred.
Therefore, because the Court finds Defendants' arguments in support of their motion to
dismiss Plaintiffs Sections 1981 and 1983 claims unpersuasive, the Court DENIES Defendants'
motion to dismiss these claims. 11
IV.

CONCLUSION
For the reasons stated herein, Defendants' motion to dismiss Plaintiffs claims under the

NYSHL and NYCHRL is GRANTED; Defendants' motion to dismiss Plaintiffs claims under
Title VII is DENIED; and Defendants' motion to dismiss Plaintiffs claims under Sections 1981
and 1983 is DENIED. This Memorandum and Order resolves Dkt. No. 39. (Dkt. No. 36 was
resolved on November 6, 2013, Dkt. No. 50.)

11

Issue preclusion may require dismissal of Plaintiff's claims under Sections 1981 and 1983 based on Plaintiff's
prior action before the New York State Department of Human Rights. See, e.g., De Cintio v. Westchester Cnty.
Med. Ctr., 821 F .2d 111 (2d Cir. 1987). Defendants did not raise this argument in their motion to dismiss.

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In light of the resolution of the Defendants' motion that prompted the stay of discovery
entered in this matter on October 2, 2013, the stay is hereby lifted and the matter is referred back
to Magistrate Judge Andrew J. Peck for further general pre-trial proceedings.

SO ORDERED.

Dated:

September").~ 2014
New York, New York

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