Humphries v. City University of New York et al

Filing 15

OPINION & ORDER re: 4 MOTION to Dismiss. filed by Katherine Krupat, Edith Rivera, Laurence Jackson, Gregory Mantsios, Yosette Jones-Johnson, Ella Kiselyuk, City University of New York. For the foregoing reasons, the Court grants defendants motion to dismiss, with prejudice, all claims in the Amended Complaint brought under Title VII, and all claims brought under the NYSHRL and the NYCHRL, except for the claim of retaliation under the NYSHRL. The Court also declines to exercise supplemental ju risdiction over that claim, and dismisses it without prejudice to Humphries' right to bring such a claim in state court. The Clerk of Court is directed to terminate the motion pending at docket number 4 and to close this case. (Signed by Judge Paul A. Engelmayer on 11/26/2013) (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------------X
:
JILL HUMPHRIES,
:
Plaintiff,
:
:
-v:
:
CITY UNIVERSITY OF NEW YORK et al.,
:
:
Defendants.
:
:
------------------------------------------------------------------------X

13 Civ. 2641 (PAE)
OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:
Plaintiff Dr. Jill Humphries (“Humphries”) brings this action against the City University
of New York (“CUNY”), her former employer, and several named CUNY employees
(collectively, “defendants”). Humphries alleges race discrimination, gender discrimination, and
hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et. seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law §§ 290
et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8101 et seq. (“NYCHRL”). Humphries also brings a claim for retaliation under the NYSHRL.
Defendants now move to dismiss all but the NYSHRL retaliation claim under Federal
Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court: (1) dismisses
Humphries’ discrimination and hostile work environment claims under Title VII, the NYSHRL,
and the NYCHRL; and (2) declines to exercise supplemental jurisdiction over Humphries’
NYSHRL retaliation claim.

I.

Background
A.

Facts1

Humphries, an African-American woman, has worked in academia for the past 20 years
“as a Researcher, Lecturer, Instructor or Professor.” EEOC Charge ¶ 2; Am. Compl. ¶ 5. She
holds a Ph.D. in Public Administration, a masters degree in Public Administration, a masters
degree in Public Health, and a Bachelor of Arts degree in Anthropology. EEOC Charge ¶ 4. In
fall 2006, Humphries began to work for CUNY2 as an adjunct assistant professor in the Urban
Studies Department at Queens College. Id. ¶ 9. In spring 2008, Humphries was hired “as an
adjunct assistant faculty member” for CUNY’s Joseph S. Murphy Institute for Worker Education
and Labor Studies (“JSMI”). Id. ¶ 12.

1

For the purpose of resolving the motion to dismiss, the Court assumes all well-pled facts to be
true, drawing all reasonable inferences in favor of the plaintiff. See Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012). Humphries attached four exhibits to her Amended Complaint
(“Am. Compl.”) (Dkt. 7). The most significant is Humphries’ Charge of Discrimination to the
EEOC (“EEOC Charge”). Humphries incorporated the EEOC Charge into her Amended
Complaint. See Am. Compl. ¶ 15 (“Plaintiff Dr. Jill Humphries hereby incorporates her EEOC
Charge of Discrimination, annexed as Exhibit B, and adds the following:”). The Court’s account
of the facts is drawn exclusively from the Amended Complaint and the EEOC Charge. See
Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (citing Allen v.
Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)).
Humphries also submitted two affidavits along with her opposition to defendants’ motion to
dismiss: the Affidavit of Dr. Jill Humphries (Dkt. 12), which attaches four new exhibits, and the
Affidavit of Sherilyn Dandridge (Dkt. 13), which attaches several e-mails exchanged between
Humphries and the individual defendants. Because these documents are outside the Amended
Complaint, the Court has not considered them on this motion to dismiss. See Williams v. Time
Warner Inc., 440 F. App’x 7, 9 (2d Cir. 2011) (in deciding whether to dismiss a complaint under
Rule 12(b)(6), a court “is generally limited to the facts as presented within the four corners of the
complaint, to documents attached to the complaint, or to documents incorporated within the
complaint by reference”). In any case, these outside materials are not “integral” to the Amended
Complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation omitted).
2

CUNY is a public university with 11 senior colleges, six community colleges, a law school, a
school of professional studies, a graduate center, and a school of journalism. Am. Compl. ¶ 6.
2

In May 2010, Humphries accepted an administrative position at the JSMI. Her job title
was “Urban Studies Academic Program Manager/Higher Education Associate.” Am. Compl.
¶ 5; EEOC Charge ¶ 13. The posted salary range for a CUNY Academic Program Manager was
between $55,602 and $74,133. EEOC Charge ¶ 20 n.1. Humphries was initially offered a salary
of $62,665, which she declined. Id. ¶¶ 19–20. Humphries then accepted the position at a salary
of $64,956. Id. ¶ 20. Later, Humphries learned that Pamela Whitfield, a Caucasian female who,
Humphries alleges, “performed similar job functions” and “had less academic experience and
fewer academic credentials,” was paid a salary of $79,242. Id. ¶¶ 18, 21–22; Am. Compl. ¶ 19.
On August 2, 2010, Humphries started working in her new role. EEOC Charge ¶ 25.
Humphries alleges that during her employment, she experienced numerous adverse actions
attributable to her race and gender, resulting in a “hostile, discriminatory, and retaliatory work
environment.” Am. Compl. ¶¶ 18, 30. In particular, she alleges that:
(1) Katherine Krupat (“Krupat”), the Associate Director of Worker Education at the
JSMI, subjected Humphries to “pejorative words” whenever she submitted completed
work assignments. Am. Compl. ¶ 18(A).
(2) Krupat changed Humphries’ job description on July 19, 2010 (before Humphries
started) and on September 21, 2010, “for no other reason other than to subject
Plaintiff to a hostile working environment where Plaintiff could not possibly succeed
as her job responsibilities and performance goals changed, arbitrarily and materially,
day-to-day.” Id.
(3) Laurence Jackson (“Jackson”), the JSMI Associate Director for Administration and
Personnel, “failed to timely provide [her] an office, keys, and access card,” id. ¶ 23,
denied her request to purchase “statistical software for the Murphy Institute,” EEOC
Charge ¶¶ 33–43, and denied her request for an “ergonomic chair,” id. ¶ 44; Am.
Compl. ¶ 23.
(4) Humphries spoke to Jackson about these issues, but “found Jackson’s communication
harsh and demeaning for no apparent reason other than her sex and skin color.” Am.
Compl. ¶ 24.
(5) Humphries had difficulty obtaining an ergonomic chair. EEOC Charge ¶ 61; Am.
Compl. ¶ 29. On September 24, 2010, Humphries sent Jackson and Yosette Jones-

3

Johnson (“Jones-Johnson”)—the Assistant Vice President for Faculty and Staff
Relations at CUNY’s Graduate Center—a letter from her physician “regarding her
medical condition and her need for an ergonomic chair.” Am. Compl. ¶¶ 10, 27.
Jones-Johnson forwarded Humphries’ request to Ella Kiselyuk (“Kiselyuk”), the
Director for Human Resources for CUNY’s Graduate Center. Id. ¶ 28. On
September 27, 2010, Humphries and Kiselyuk met to discuss the request. EEOC
Charge ¶ 54. Kiselyuk requested permission to speak to Humphries’ doctor, which
Humphries denied. Id. ¶¶ 56–57. On October 5, 2010, Humphries asked Kiselyuk to
put her medical request in writing for review before forwarding it to Humphries’
physician. Id. ¶¶ 58–60. Humphries never received an ergonomic chair.
(6) Krupat, Jackson, and other JSMI employees “inappropriately labeled [Humphries] as
an ‘Angry Black Woman’” by “categorizing her appropriate and effective
assertiveness with pejorative words likened to the Angry Black Women Syndrome:
‘aggressive’, ‘agitated’, ‘angry’, ‘belligerent’, ‘disruptive’, ‘hands on hip’, ‘hostile’,
‘threatening’, and ‘Vituperative’, among others.” Am. Compl. ¶¶ 26, 26(A).3
Humphries also alleges that she complained to her supervisors about Jackson’s denial of
her software request, but that they “sid[ed] with” defendant Jackson. Id. ¶ 25. On September 20,
2010, Humphries met with Edith Rivera (“Rivera”), the Chief Diversity Officer for CUNY’s
Affirmative Action Office (“AAO”). Id. ¶¶ 36–38. Also present was Kristin Maynard, a
representative of the School of Professional Studies, CUNY Graduate Center. EEOC Charge
¶ 85. At the meeting, Humphries felt “Rivera was dismissive of her discrimination claims
suffered at the hands of all Defendants.” Am. Compl. ¶ 38. Humphries alleges that Rivera “tried
to bully and discourage [her] from pursuing a formal complaint against Defendant CUNY and its
agents.” Id. Humphries further alleges that Rivera “failed to follow written CUNY policy and
procedure in investigating [Humphries’] allegation of race and gender discrimination.” Id.
¶ 38(A).4
3

For several of Humphries’ allegations, she pleads that “[u]pon information and belief, [her]
non-Black and/or male colleagues were not subject to” the same treatment. See Am. Compl.
¶¶ 18, 21, 23, 26, 26(A), 28, 29, 41.

4

As alleged, Rivera apparently did conduct an internal investigation of some kind into
Humphries’ discrimination complaint. EEOC Charge ¶ 91 (“On October 18, 2010, I was
informed that my discrimination complaint lacked merit.”).
4

After Humphries’ September 20, 2010 meeting with CUNY’s AAO, Humphries “insisted
on union representation during all management-initiated meetings” regarding her performance.
Id. ¶ 40(C). Krupat scheduled a meeting with Humphries on October 4, 2010, but Humphries
did not attend. EEOC Charge ¶ 96. As a result, Krupat told Humphries to “put all work in
progress on hold,” and to “not go further with any project or any meetings with Urban Studies
staff.” Am. Compl. ¶ 40(A). Humphries characterizes this as a “de facto” suspension, which
was “lifted,” 11 days later, on October 15, 2010. Id.; EEOC Charge ¶ 110. On October 12,
2010, Krupat directed Humphries to attend the Urban Studies program team meeting scheduled
for October 13, 2010. EEOC Charge ¶ 108. Humphries attended the meeting, but was,
apparently, “belligerent.” Id. ¶ 111. On October 15, 2010, Krupat placed in Humphries’
personnel file “an instructional memo labeling [her] as being belligerent during” that meeting.
Id.
Between October 21, 2010 and January 3, 2011, Humphries took a 10-week leave of
absence to care for her ailing father. Id. ¶¶ 112–113. Upon her return, Humphries “received a
notice of Intent for Immediate Discharge from the Instructional Staff” of the CUNY Graduate
Center. Id. ¶ 114. Four days later, on January 7, 2011, Humphries was fired. Id. ¶ 115; Am.
Compl. ¶ 40(F).
Humphries filed a grievance against CUNY under the Collective Bargaining Agreement,
see EEOC Charge ¶ 121, which was submitted for arbitration on January 20, 2012, see
Humphries v. City University of New York, Index No. 651699/2013 (Sup. Ct. N.Y. Co., Singh, J.)
(June 26, 2013).5 The purpose of the Arbitration was to determine whether CUNY had just

5

The Court takes judicial notice of the docket in the above-captioned case, Humphries v. City of New
York, in which Humphries challenged the arbitrators’ denial of her collective bargaining grievance.
See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely take

5

cause under the collective bargaining agreement and CUNY by-laws to terminate Humphries.
Id. The Arbitrator ruled in favor of CUNY. Humphries’ petition in New York State Court to
vacate this ruling was denied. Id.
B.

Procedural History

On April 27, 2011, Humphries filed a charge of discrimination with the U.S. Equal
Employment Opportunity Commission (“EEOC”), alleging that she had suffered discrimination
and retaliation on the basis of race, sex, and disability. See EEOC Charge. On January 22, 2013,
the EEOC issued Humphries a “right to sue letter.” See Am. Comp. Ex. A.
On April 22, 2013, Humphries filed her initial Complaint. Dkt. 1. On June 28, 2013,
defendants submitted a motion to dismiss, Dkt. 4, and a supporting memorandum of law, Dkt. 5
(“Def. Br.”). On July 19, 2013, Humphries filed an Amended Complaint. Dkt. 7. On July 31,
2013, defendants submitted a letter stating that they would “stand on their original papers.” Dkt.
8. On August 26, 2013, Humphries submitted a memorandum of law in opposition to the motion
to dismiss, Dkt. 11 (“Pl. Br.”), the Affidavit of Dr. Jill Humphries, Dkt. 12, and the Affidavit of
Sherilyn Dandridge, Dkt. 13. On September 9, 2013, defendants filed their reply. Dkt. 14 (“Def.
Rep. Br.”).
II.

Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a Complaint must allege facts that,

accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
judicial notice of documents filed in other courts.”). The Court does not consider the procedural
history or any filings in that court case for the truth of the matters asserted in that litigation, but
simply to establish the fact of and background to that litigation, which was referenced in
Humphries’ EEOC Charge.

6

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting
Twombly, 550 U.S. at 557) (internal quotation marks omitted).
A complaint is not required to provide “detailed factual allegations,” but it must assert
“more than labels and conclusions” and more than “a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S at 555. The facts pled “must be enough to raise a right to
relief above the speculative level on the assumption that all the allegations in the complaint are
true.” Id. (internal citations omitted). The Court must accept all factual allegations in the
complaint as true, and draw all reasonable inferences in favor of the non-moving party. ATSI
Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Burnette v. Carothers, 192
F.3d 52, 56 (2d Cir. 1999).
Recently, the Second Circuit stated that “[t]he pleading standard for employment
discrimination complaints is somewhat of an open question in our circuit.” Hedges v. Town of
Madison, 456 F. App’x 22, 23 (2d Cir. 2012) (summary order). At a minimum, however,
“employment discrimination claims must meet the standard of pleading set forth in Twombly and
Iqbal, even if pleading a prima facie case is not required.” Id. Although “a complaint need not
establish a prima facie case of employment discrimination[, it] must be facially plausible and
must give fair notice to the defendants of the basis for the claim.” Munoz-Nagel v. Guess, Inc.,
No. 12 Civ. 1312 (ER), 2013 WL 1809772, at *4 (S.D.N.Y. Apr. 30, 2013) (quoting Barbosa v.
Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010)). “In the absence
of a facially plausible discrimination claim that gives fair notice to a defendant of the acts that
form the basis of the claim, dismissal at the pleading stage is warranted.” Williams v. Addie Mae

7

Collins Cmty. Serv., No. 11 Civ. 2256 (LAP), 2012 WL 4471544, at *3 (S.D.N.Y. Sept. 27,
2012) (citing Patane v. Clark, 508 F.3d 106, 111–13 (2d Cir. 2007)).
III.

Discussion
A.

Defining the Title VII Claims in the Amended Complaint

At the outset, it is necessary to define Humphries’ claims under Title VII, i.e., her federal
claims. These claims are set out in her first cause of action, which states that defendants’ acts
“were designed, intended and used to discriminate against Plaintiff, and create a hostile working
environment, due to her sex/gender and race in violation of Title VII, 42 U.S.C. § 2000e.” Am.
Compl. ¶¶ 43. On the face of her pleading, the Court construes Humphries’ Title VII claims to
be for: (1) race and gender discrimination; and (2) a hostile work environment. She does not
plead a Title VII claim for retaliation.6

6

Humphries, who is represented by counsel, pleads a retaliation claim only under the New York
State Human Rights Law. See Am. Compl. ¶ 47 (“The aforementioned acts toward the Plaintiff
by Defendants . . . constitute retaliation in violation of NY Exec. Law § 296(7).”) (emphasis
added). Humphries’ Title VII Cause of Action does not mention retaliation. See Am. Compl.
¶¶ 43 (defendants’ acts “were designed, intended and used to discriminate against Plaintiff, and
create a hostile working environment, due to her sex/gender and race in violation of Title VII, 42
U.S.C. § 2000e.”). Humphries’ brief in opposition does briefly refer to federal law governing
retaliation claims brought under Title VII, Def. Br. at 9–11, but a reference in an opposition brief
is no cure for failing to plead such a federal claim in her Amended Complaint.
See Olde Monmouth Stock Transfer Co., Inc. v. Depository Trust & Clearing Corp., 485 F. Supp.
2d 387, 393 (S.D.N.Y. 2007) (“It is long-standing precedent in this circuit that parties cannot
amend their pleadings through issues raised solely in their briefs.”) (citation omitted); Lazaro v.
Good Samaritan Hosp., 54 F. Supp. 2d 180, 184 (S.D.N.Y. 1999) (“[I]t is axiomatic that the
Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”) (citation
omitted). Defendants state, in their reply brief, that they “did not move against the retaliation
claim, recognizing that, at the pleading stage, temporal proximity between a complaint and an
adverse employment action, like termination, is enough.” Def. Rep. Br. at 4 n.3 (citing Morris v.
Landau, 196 F.3d 102, 113 (2d Cir. 1999)). The Court construes this statement to explain the
decision not to move to dismiss Humphries’ retaliation claim, brought under state law, because
that is the only retaliation claim pled in the Amended Complaint, not to acknowledge that the
Amended Complaint contains a federal-law retaliation claim.
8

The Amended Complaint is less than pellucid as to whether it is intended to plead a claim
for sexual harassment. Humphries’ first cause of action, which alleges a “hostile working
environment, due to her sex/gender and race,” appears to so plead, and the Amended Complaint
recites several allegations consistent with an intention to bring such a claim. Most notably, the
Amended Complaint alleges that Krupat “stare[d] at [Humphries] in a sexually suggestive
manner,” “deliberately leered at [her] body,” and “stare[d] at her breast.” Am. Compl. ¶ 31–33.
But the Amended Complaint’s summary paragraph identifying Humphries’ causes of action does
not mention sexual harassment, see, e.g., id. at ¶ 1, and the term “sexual harassment” does not
appear anywhere in the Amended Complaint. Furthermore, although defendants devote a large
section of their memorandum of law arguing for dismissal of a sexual harassment claim, see Def.
Br. at 13–19, Humphries’ opposition papers do not mention, let alone defend, such a claim. See
also Def. Rep. Br. at 1 (noting “plaintiff’s apparent abandonment of the sexual harassment claim
against either CUNY or Katherine Krupat”). Nonetheless, despite Humphries’ casual pleading
on this point, the Court will construe the Amended Complaint to have alleged a hostile work
environment on account of sex, and will consider the above allegations regarding Krupat as part
of that claim.
Finally, Humphries has withdrawn her Title VII claims against the individual defendants.
Pl. Br. at 12 (“Plaintiff withdraws the Title VII Claims against defendants Mantsios, Krupat,
Jackson, Jones-Johnson, Rivera, and Kiselyuk.”). In so doing, Humphries appears to have
acknowledged legal reality: In the Second Circuit, individuals cannot be held personally liable
under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (an individual
defendant “may not be held personally liable under Title VII”), abrogated on other grounds by
Faragher v. City of Boca Raton, 524 U.S. 775, 807–08 (1998) and Burlington Indus., Inc. v.

9

Ellerth, 524 U.S. 742, 764–65 (1998). Personal liability is unavailable regardless of whether a
supervisor has been shown to have committed discrimination. See Finn v. N.Y. State Off. of
Mental Health-Rockland Psychiatric Ctr., No. 08 Civ. 5142 (VB), 2011 WL 4639827, at *10
(S.D.N.Y. Oct. 6, 2011) aff’d, 489 F. App’x 513 (2d Cir. 2012) (citation omitted).
Accordingly, Humphries’ Title VII claims apply against only defendant CUNY.
Defendants have moved to dismiss both Title VII claims: (1) race and gender discrimination; and
(2) hostile work environment. The Court considers each in turn.
B.

The Amended Complaint Fails to State a Claim Under Title VII For Race or
Gender Discrimination

Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any
individual, or to otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. §§ 2000e-2(a)(1) (emphasis added). To establish a prima
facie case of discrimination under Title VII, a plaintiff must demonstrate that: (1) she was within
the protected class, (2) she was qualified for the position, (3) she experienced an adverse
employment action, and (4) the adverse action occurred under circumstances giving rise to an
inference of discrimination. Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129
(2d Cir. 2012) (citing Gorzynski v. JetBlue Airways, Corp., 596 F.3d 93, 107 (2d Cir. 2010)).
The “sine qua non of a . . . discriminatory action claim under Title VII is that the discrimination
must be because of” the employee’s protected characteristic. Patane, 508 F.3d at 112 (citation
omitted) (emphasis in the original); see also Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.
2001) (“It is axiomatic that mistreatment at work . . . is actionable under Title VII only when it
occurs because of an employee’s sex, or other protected characteristic.”) (emphasis added).

10

Although Humphries is not required to establish a prima facie case of employment
discrimination at the pleading stage, the elements of a prima facie case “provide an outline of
what is necessary to render [a plaintiff's employment discrimination] claims for relief plausible.”
Sommersett, 2011 WL 2565301. Accordingly, a claim for discrimination under Title VII is
properly dismissed where the plaintiff fails “to plead any facts that would create an inference that
any adverse action taken by any defendant was based upon” the protected characteristic. Patane,
508 F.3d at 112 (citation omitted).
Here, defendants do not dispute that Humphries has adequately alleged the first two
elements of a prima facie case. As an African-American woman, Humphries is a member of a
protected class both as to her race and her gender. And she alleges that she was qualified for her
position. Thus, to make out a plausible case under Title VII, Humphries must allege that she was
subject to an adverse employment action, and that the adverse employment action took place
under circumstances giving rise to an inference of discrimination based upon her race or gender.
Reading Humphries’ discursive pleadings liberally, the Court identifies just two
potentially plausible adverse employment actions: Humphries (1) received a lower salary than
Pamela Whitfield, a female Caucasian employee; and (2) was terminated. Defendants’ motion to
dismiss therefore argues that Humphries has not alleged facts sufficient to give rise to a plausible
inference that either of these two actions occurred because of her race or gender.
1.

Disparate Pay

The first adverse employment action is that Humphries was paid less than a Caucasian
female co-worker, Pamela Whitfield (“Whitfield”). “Subjecting an employee to unequal pay
can, of course, constitute a materially adverse employment action.” Butler v. New York Health
& Racquet Club, 768 F. Supp. 2d 516, 532 (S.D.N.Y. 2011) (citing Borrero v. Am. Express Bank

11

Ltd., 533 F. Supp. 2d 429, 438 (S.D.N.Y. 2008)). Here, Humphries was paid a salary of $64,956,
while Pamela Whitfield, a Caucasian female, was paid $79,242. Am. Compl. ¶ 19; EEOC
Charge ¶¶ 18–20.
However, to establish an inference of discrimination based on a showing of disparate
treatment, Humphries must plead that “she was similarly situated in all material respects to the
individuals with whom she seeks to compare herself.” Graham v. Long Island R.R., 230 F.3d 34,
39 (2d Cir. 2000) (citation omitted). What constitutes “all material respects” varies from case to
case, but “must be judged based on [] whether the plaintiff and those [s]he maintains were
similarly situated were subject to the same workplace standards.” Id. at 40. The standard
requires “a reasonably close resemblance of facts and circumstances.” Id.; see also McGuinness
v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (“[W]here a plaintiff seeks to establish the
minimal prima facie case by making reference to the disparate treatment of other employees,
those employees must have a situation sufficiently similar to plaintiff’s to support at least a
minimal inference that the difference of treatment may be attributable to discrimination.”).
Here, Humphries has failed to plead facts to establish that she and Whitfield were
similarly situated with respect to relevant experience and/or length of employment. Humphries
does not plead how long Whitfield had been working for CUNY or, for that matter, anything
about Whitfield’s relevant administrative experience. Nor does she plead facts about Whitfield’s
job responsibilities or her annual reviews. Humphries simply pleads that Whitfield: (1) was an
Academic Program manager; (2) “performed similar job functions;” and (3) “had less academic
experience and fewer academic credentials.” EEOC Charge ¶¶ 18–22; Am. Compl. ¶ 19. These
conclusory statements about a co-workers’ qualifications are insufficient to raise an inference of
discrimination. See Gupta v. New York City Sch. Const. Auth., 305 F. App’x 687, 689 (2d Cir.

12

2008) (upholding district court’s decision to treat as “mere speculation” plaintiff’s allegation that
“employees who were promoted or retained were less academically qualified with less
professional experience”); Sharpe v. MCI Commc’ns Servs., Inc., 684 F. Supp. 2d 394, 405
(S.D.N.Y. 2010) (because plaintiff did not “present any concrete facts regarding the training,
qualifications, or abilities of the retained employees,” speculation about former colleagues’
qualifications is “insufficient to raise an inference of discrimination”). On this basis alone,
Humphries has failed to plead plausibly that CUNY discriminated against her on the basis of
race by paying her less than Whitfield.
It is also significant that, as alleged, Humphries’ salary fell squarely within the posted
range of $55,602 to $74,133 for an Academic Program Manager. EEOC Charge ¶ 20 n.1.
Humphries was originally offered a salary of $62,665, which she declined. Id. at ¶ 19. She then
accepted the offer of $64,956. Id. at ¶ 20. Accordingly, Humphries was hired to start at a salary
almost exactly in the middle of the posted range for her position. A bald allegation that one of
Humphries’ white colleagues—of unknown years of service, training, or experience—made 20%
more than Humphries’ starting salary is not enough, standing alone, to raise an inference of
discrimination. And the Amended Complaint does not plead any other facts (e.g., statements
from personnel responsible for the setting of the two women’s salaries) that might give rise to an
inference that the salary differential reflected the women’s different races.
Because the Amended Complaint does not supply a plausible basis on which one could
infer that a decision to pay Humphries less than Whitfield was based on gender or race
discrimination, Humphries’ Title VII claim for pay discrimination is dismissed.

13

2.

Termination of Employment

Humphries’ termination, on January 7, 2011, was the quintessential materially adverse
employment action. See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004);
Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). The question is whether
Humphries has alleged facts that could give rise to a plausible inference that her termination
occurred because of her race or gender. Humphries makes two broad allegations that, if backed
up by adequately pled facts, could supply a plausible basis for such an inference: (1) CUNY
employees treated her worse than similarly situated Caucasians and men throughout her short
period of employment; and (2) CUNY employees used stereotypical terminology to refer to her,
so as to reveal their discriminatory animus.
a. Allegations of Disparate Treatment
The Amended Complaint repeatedly alleges that Humphries was treated worse than
similarly situated men and Caucasians. Some eight times it makes the generic statement: “Upon
information and belief, Dr. Jill Humphries’ non-Black and/or male colleagues were not subject
to” the same treatment. See Am. Compl. ¶¶ 18, 21, 23, 26, 26(A), 28, 29, 41. But beyond the
allegation of disparate pay—discussed supra—the Amended Complaint does not make any
concrete factual allegations on which the conclusion could plausibly be drawn that she was
treated differently from similarly situated white or male colleagues. The treatment of which she
complains consist of: (1) two changes to her job description (one after she started); (2) the denial
of her request for statistical software; (3) delayed provision of her keys and office; and (4) denial
of her request for an ergonomic chair. These modest slights and inconveniences, even viewed
cumulatively, are not indicative, on their face, of racism or sexism. Instead, they reflect
“workplace difficulties entirely consistent with non-race, non-gender-based personality

14

disputes—disputes that are plainly not actionable under statutes intended to root out
discrimination on the bases of certain statutorily defined protected characteristics.” Williams v.
Time Warner Inc., No. 09 Civ. 2962 (RJS), 2010 WL 846970, at *4 (S.D.N.Y. Mar. 3, 2010),
aff’d, 440 F. App’x 7 (2d Cir. 2011). Difficulties in obtaining necessary work supplies or keys
are routine annoyances familiar to anyone who has ever worked in an office.
In any event, the Amended Complaint does not, except in conclusory fashion, link these
alleged slights or indignities to Humphries’ race or gender. It states that Humphries “found
Jackson’s communication harsh and demeaning for no apparent reason other than her sex and
skin color.” Am. Compl. ¶ 24. But this is conclusory. Humphries does not allege that Jackson
actually said anything demeaning (such as using racist language)—but merely that, without
explanation, Humphries perceived his communication as harsh and demeaning and perceived
that he so acted based on her race and gender. Humphries alleges no facts to support her
subjective perceptions. In effect, the Amended Complaint tars Jackson as a racist and sexist
without alleging any factual basis for these labels. Such purely conclusory allegations of
discrimination, absent any concrete particulars would fail to establish a prima facie case.
The same shortcoming applies to the Amended Complaint’s repeated statement that
“[u]pon information and belief” her non-Black and male colleagues were not subjected to the
same administrative inconveniences. See p. 14, supra. At the pleading stage, it is not enough to
assert mere “labels and conclusions” and “a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S at 555. Yet the Amended Complaint does not back up this claim
with any concrete factual allegations which might support such a belief. It does not, for
example, allege that Humphries’ non-Black and male colleagues received their keys or offices
faster, or that their offices were equipped with more advanced software or ergonomic chairs.

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There are literally no facts alleged in the Amended Complaint that could plausibly support an
inference that CUNY treated Humphries any differently from her white or male colleagues.
b. Allegations of Stereotypical Language
The other possible basis for inferring discrimination is the Amended Complaint’s claim
that CUNY employees referred to Humphries using stereotypical language. Discriminatory or
stereotypical remarks are often admissible, because they may tend to show discriminatory
animus. Whether remarks by defendants or defendants’ employees support an inference of
discrimination depends, however, on the context in which they were made and whether, fairly
considered, they themselves reveal discrimination or “tend[] to show that the decision-maker was
motivated by assumptions or attitudes relating to the protected class.” Tomassi v. Insignia Fin.
Grp., 478 F.3d 111, 116 (2d Cir. 2007).
Here, the Amended Complaint alleges that Humphries’ supervisors and co-workers
referred to her using “pejorative words likened to the Angry Black Women Syndrome:
‘aggressive’, ‘agitated’, ‘angry’, ‘belligerent’, ‘disruptive’, ‘hands on hip’, ‘hostile’,
‘threatening’, and ‘Vituperative’, among others.” Am. Compl. ¶ 26(A). It does not, however,
allege that anyone at CUNY ever actually referred to Humphries as an “angry black woman” or
otherwise ever used language that explicitly referenced Humphries’ race or skin color. Instead,
the Amended Complaint merely alleges that, based on the above adjectives, Humphries
perceived herself to have been stereotyped on account of race. But “feelings and perceptions of
being discriminated against are not evidence of discrimination.” Bickerstaff v. Vassar Coll., 196
F.3d 435, 456 (2d Cir. 1999)); accord Fisher v. Vassar Coll., 70 F.3d 1420, 1439 (2d Cir.1995)
(Plaintiff’s “sense of being discriminated against is not evidence.”). Although use of the above
adjectives to describe an employee could, in combination with other concrete factual allegations,

16

support a claim of racial and/or gender discrimination, here there are no such allegations.
Without more, Humphries’ subjective interpretation of her co-workers’ use of these critical but
facially non-discriminatory terms does not, itself, reveal discriminatory animus.
The Amended Complaint thus fails to plead a plausible case of disparate treatment or
discriminatory animus on the part of CUNY. Because Humphries’ termination, as pled, did not
occur under circumstances giving rise to an inference of race or gender discrimination, the
Amended Complaint fails to state a plausible claim for discrimination under Title VII.7
Defendants’ motion to dismiss Humphries’ Title VII discrimination claim is, therefore,
granted.
C.

The Amended Complaint Fails to State a Claim Under Title VII For Hostile
Work Environment

The Court next considers the Amended Complaint’s claim that the actions of CUNY’s
employees, as discussed above, created a hostile work environment on account of her gender or
race.
Title VII “prohibits the creation of a hostile work environment.” Vance v. Ball State
Univ., 133 S. Ct. 2434, 2441 (2013). The Second Circuit has described the elements of a hostile
work environment as follows:
To state a claim for a hostile work environment . . . , a plaintiff must plead facts
that would tend to show that the complained of conduct: (1) “is objectively severe
7

The Amended Complaint also alleges that Humphries was temporarily suspended. Although a
suspension is an adverse action, the Amended Complaint pleads no facts to support an inference
that this suspension came about because of her race or gender. Instead, it simply pleads that
Humphries was de facto suspended (with pay) on October 4, 2010, see Am. Compl. ¶ 40(A), and
that this suspension “was lifted” on October 15, 2010, see EEOC Charge ¶ 110. And Humphries
has acknowledged that she was suspended from her job duties for a different reason than her race
or gender—“for refusing to meet with [Krupat] and Dr. Mantsios without [her] union
representative.” EEOC Charge ¶ 96. There is, therefore, no factual pleading on which the
inference could be plausibly be drawn that Humphries’ 11-day suspension derived from race or
gender discrimination.
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or pervasive—that is, . . . creates an environment that a reasonable person would
find hostile or abusive”; (2) creates an environment “that the plaintiff subjectively
perceives as hostile or abusive”; and (3) “creates such an environment because of
the plaintiff’s [protected class].”
Patane, 508 F.3d at 113 (quoting Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001)); see
also Sotomayor v. City of N.Y., 862 F. Supp. 2d 226, 260 (E.D.N.Y. 2012). Importantly, Title
VII “does not set forth ‘a general civility code for the American workplace.’” Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation omitted); see also
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (emphasizing that Title VII
does not prohibit all workplace harassment, but only harassment that reflects or derives from
statutorily proscribed forms of discrimination).
“[A] work environment’s hostility should be assessed based on the totality of the
circumstances.” Patane, 508 F.3d at 113 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)). Factors that may be considered include: (1) the frequency of the discriminatory
conduct; (2) its severity; (3) whether it is threatening and humiliating, or a mere offensive
utterance; and (4) whether it unreasonably interferes with an employee’s work performance. See
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) (citation omitted). Thus,
“whether a particular work environment is objectively hostile is necessarily a fact-intensive
inquiry,” and, accordingly, the Second Circuit has “repeatedly cautioned against setting the bar
too high” in the context of a motion to dismiss such a claim. Id. at 113 (quoting Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).
The allegations in the Amended Complaint fail to clear even a low bar. Putting aside the
conclusory claim of a “hostile working environment where [she] could not possibly succeed,”
see Am. Compl. ¶ 18, Humphries’ allegations are that, for the fewer than three months during
which she worked for CUNY at the JSMI, her requests for software and an ergonomic chair were

18

denied; her job description changed once before she started and again a couple of months later;
she had to wait to get her office and her keys; and she was characterized by co-workers as angry
and hostile. She also alleges that her supervisor stared and leered at her in “a sexually suggestive
manner,” and made some comments about her “attire.” Am. Compl. ¶ 31–34. These vague and
conclusory allegations do not adequately plead that Krupat ever acted in any “sexually
suggestive” or inappropriate manner. In any case, assuming the truth of all of Humphries’
allegations, and viewing them in their totality, they fall well short of the sort of conduct that
courts have found “sufficiently pervasive to alter the conditions of the victim’s employment.”
See Alfano v. Costello, 294 F.3d 365, 379–80 (2d Cir. 2002) (collecting cases in which courts
have and have not found sufficient evidence of a hostile work environment); Mendez-Nouel v.
Gucci Am., Inc., No. 10 Civ. 3388 (PAE), 2012 WL 5451189 (S.D.N.Y. Nov. 8, 2012) aff’d,
2013 WL 5584317 (2d Cir. Oct. 11, 2013) (“The episodes Mendez–Nouel complains of are
simply too episodic, insufficiently serious, and, most important, insufficiently tied to his gender
or sexual orientation, to have materially altered the conditions of Mendez–Nouel’s employment
on the basis of any protected classification.”)
The conduct concretely alleged in the Amended Complaint, viewed in totality, was not
sufficiently pervasive in its hostility to alter the conditions of Humphries’ employment at CUNY.
Nor is it plausible that this conduct constituted harassment on the basis of Humphries’ gender or
race. Defendants’ motion to dismiss Humphries’ Title VII hostile work environment claim is,
therefore, granted.
D.

Humphries Fails to State a Claim of Discrimination or Hostile Work
Environment Under the NYSHRL or NYCHRL

The Amended Complaint also pleads claims under the state and local Human Rights
Laws. In its second cause of action, the Amended Complaint pleads, under the NYSHRL, claims

19

of race and gender discrimination and retaliation. Am. Compl. ¶¶ 44–47 (citing NYSHRL §§
296(6) and 296(7)). In its third cause of action, it pleads, under the NYCHRL, claims of race
and gender discrimination. Am. Compl. ¶¶ 48–49 (citing NYCHRL § 8-107). The NYSHRL
and NYCHRL claims are brought against CUNY and six named individual defendants.
At the outset, the Court dismisses the claims under the NYSHRL and NYCHRL against
CUNY. As Humphries acknowledges, CUNY, as a state instrumentality, is not subject to suit
under city law. See Pl. Br. at 12; see also Jattan v. Queens College, 883 N.Y.S.2d 110, 112 (2d
Dep’t 2009) (“As an instrumentality of the State, Queens College is not subject to the provisions
of the New York City Human Rights Law [NYCHRL].”). Humphries argues, however, that
CUNY is subject to suit under the NYSHRL. Pl. Br. at 12. But as a matter of law, under the
Eleventh Amendment, CUNY is not subject to suit in federal court for alleged violations of state
law. See Clissuras v. CUNY, 359 F.3d 79 (2d Cir. 2004) (affirming dismissal of claims against
CUNY on Eleventh Amendment sovereign immunity grounds); id. at 81 (“It is well settled that
the ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued
by private individuals in federal court.”) (citation omitted); Jungels v. State University of New
York, 922 F. Supp. 779 (W.D.N.Y. 1996), aff’d sub nom. Jungels v. Jones, 112 F.3d 504 (2d Cir.
1997) (Eleventh Amendment forbids federal court from considering state human rights law
claims against state agencies). Accordingly, all NYSHRL and NYCHRL claims against CUNY
are dismissed.8

8

Humphries’ NYSHRL claim against CUNY for retaliation is dismissed without prejudice to
Humphries’ right to bring such a claim in state court. However, because Humphries’ NYSHRL
claims against CUNY for race and gender discrimination and hostile work environment are
substantively deficient, see infra at 21, they are dismissed with prejudice.
20

As to the NYSHRL and NYCHRL claims against the individual defendants, these
defendants have moved to dismiss the race and gender discrimination claims under the NYSHRL
and NYCHRL, but not the retaliation claim, which is brought only under the NYSHRL.
The NYSHRL and NYCHRL each make it unlawful “[f]or an employer . . . because of an
individual’s . . . race [or] sex . . . to discharge from employment . . . or to discriminate against
such individual in compensation or in terms, conditions or privileges of employment.” N.Y.
Exec. Law § 296(1)(a); N.Y. City Admin. Code § 8–107(1)(a).
“[C]laims brought under New York State’s Human Rights Law are analytically identical
to claims brought under Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,
107 (2d Cir. 2011) cert. denied, 132 S. Ct. 1744 (2012) (citing Torres v. Pisano, 116 F.3d 625,
629 n. 1 (2d Cir.1997)). Accordingly, Humphries’ claims under the NYSHRL for race or gender
discrimination must be, and are, dismissed.
As to the NYCHRL, race and gender discrimination claims under the New York City law
are subject to a more liberal judicial construction than those brought under federal or state law.
The NYCHRL “requires that courts give the statute an independent and more liberal construction
than its federal and state counterparts.” Sotomayor, 862 F. Supp. 2d at 257 (citation omitted);
see also id. (“The provisions of this [] title shall be construed liberally for the accomplishment of
the uniquely broad and remedial purposes thereof, regardless of whether federal or New York
State civil and human rights laws, including those laws with provisions comparably-worded to
provisions of this title, have been so construed.”); Loeffler v. Staten Island Univ. Hosp., 582 F.3d
268, 278 (2d Cir. 2009) (“[C]laims under the City HRL must be reviewed independently from
and ‘more liberally’ than their federal and state counterparts.”); Albunio v. City of N.Y., 16
N.Y.3d 472, 478–79 (2011) (NYCHRL must be construed “broadly in favor of discrimination

21

plaintiffs, to the extent that such a construction is reasonably possible”); Williams v. N.Y.C.
Hous. Auth., 872 N.Y.S.2d 27, 30 (1st Dep’t 2009) (“[C]ourts [must] be sensitive to the
distinctive language, purposes, and method of analysis required by the [NYCHRL], requiring an
analysis more stringent than that called for under either Title VII or the [NYSHRL].”).
Notwithstanding this more liberal standard of review, “[o]ur consideration of claims
brought under the state and city human rights laws parallels the analysis used in Title VII
claims.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 (2d Cir. 2000). Under that framework,
Humphries would still have to demonstrate that: (1) membership in a protected class, (2)
qualifications for the position, (3) an adverse employment action, and (4) circumstances giving
rise to an inference of discrimination. Bucalo, 691 F.3d at 129. For the reasons stated above, the
Amended Complaint fails to plead any facts that could give rise to an inference that Humphries’
disparate pay or her termination of employment was motivated by race or gender discrimination;
it thus fails to state a claim even under the more liberal standards of the NYCHRL. Accordingly,
Humphries’ NYCHRL claims of discrimination are dismissed.
E.

The Court Declines to Exercise Supplemental Jurisdiction Over the
Amended Complaint’s NYSHRL Claim for Retaliation Against the
Individual Defendants

Having dismissed all Title VII claims brought in the Amended Complaint, the Court must
next determine whether to exercise supplemental jurisdiction over Humphries’ only remaining
claim—retaliation under the NYSHRL against the individual defendants. Federal district courts
have supplemental jurisdiction over state-law 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). However, such jurisdiction is
discretionary, see City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997), and a

22

district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). A district court should, in
deciding whether to exercise its supplemental jurisdiction, balance the traditional “values of
judicial economy, convenience, fairness, and comity.” Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988). Both the Second Circuit and the Supreme Court have held that, as a
general rule, “when the federal claims are dismissed the ‘state claims should be dismissed as
well.’” In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (quoting United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). Although the exercise of supplemental
jurisdiction is discretionary, the ordinary case “will point toward declining jurisdiction over the
remaining state-law claims.” In re Merrill Lynch, 154 F.3d at 61 (citing Cohill, 484 U.S. at 350
n.7).
Here, no circumstances counsel in favor of the Court exercising supplemental jurisdiction
over Humphries’ NYSHRL retaliation claim against the individual defendants. The Court has
done little more than resolve a motion to dismiss, which did not address the retaliation claim.
The Court has not yet invested the resources necessary to make itself familiar with this claim, let
alone to resolve it. Nor do convenience, fairness, or comity counsel in favor of retaining
jurisdiction. The Court accordingly declines to exercise supplemental jurisdiction over this
claim. The Amended Complaint’s NYSHRL retaliation claim against the individual defendants
is dismissed without prejudice.
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion to dismiss, with prejudice,
all claims in the Amended Complaint brought under Title VII, and all claims brought under the
NYSHRL and the NYCHRL, except for the claim of retaliation under the NYSHRL. The Court

23

also declines to exercise supplemental jurisdiction over that claim, and dismisses it without
prejudice to Humphries' right to bring such a claim in state court.
The Clerk of Court is directed to terminate the motion pending at docket number 4 and to
close this case.
SO ORDERED.

pa~~ng:ay~
United States District Judge

Dated: November 26, 2013
New York, New York

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