Carter v. Verizon et al
OPINION AND ORDER re: 27 MOTION to Dismiss the Second Amended Complaint filed by Chris Shea, Julaine Lowe, Paul Donovan, Tishawn Kinsey, Verizon: For the foregoing reasons, Defendants' motion to dismiss is GRANTED in its entirety. Specifically, Plaintiff's federal, state, and city law claims of employment discrimination and hostile work environment are DISMISSED WITH PREJUDICE, with the exception of his claim of hostile work environment because of gender un der the NYCHRL. Plaintiff's federal claims of unlawful retaliation against individual Defendants are DISMISSED WITH PREJUDICE. Plaintiff's federal claims of unlawful retaliation as to Defendant Verizon, and his state and city claims of unla wful retaliation as to all Defendants are DISMISSED WITHOUT PREJUDICE to amendment. If he wishes to do so, Plaintiff may file a third amended complaint in accordance with this Order on or before February 20, 2015. The Court cautions Plaintiff not to attempt to replead his claims that have been dismissed with prejudice, and to focus on repleading his retaliation claims. If Plaintiff does not file an amended complaint by February 20, 2015, the Court will issue an order transferring the NYCHRL hos tile work environment claim to New York State Supreme Court within seven days of that deadline. If Plaintiff files an amended complaint in accordance with this Opinion, the Court will promptly set a conference to discuss discovery or further motion practice. (Signed by Judge Katherine Polk Failla on 1/20/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VERIZON, et al.,
KATHERINE POLK FAILLA, District Judge:
DOC #: _________________
DATE FILED: January 20, 2015
13 Civ. 7579 (KPF)
OPINION AND ORDER
On March 11, 2013, Plaintiff Michael Carter, proceeding pro se and in
forma pauperis, filed this action under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621 to 634 (the “ADEA”), the New York
State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (the “NYSHRL”), and
the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131
(the “NYCHRL”). Construing his allegations in the strongest manner possible,
Plaintiff alleges employment discrimination (in both disparate treatment and
hostile work environment forms) and retaliation based on his gender and his
age. Defendants, Verizon and several of its employees, have moved to dismiss
Plaintiff’s Second Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6); Plaintiff has submitted no opposition. For the reasons set
forth in the remainder of this Opinion, Defendants’ motion is granted in part
and denied in part, and Plaintiff is given leave to amend certain of his
Plaintiff began working at Verizon on June 26, 1997, in the “Manhattan
Business Office.” (SAC 4, 9).2 In early 2011, when Plaintiff was 48 years old,
the management team at the Manhattan Business Office changed; Defendant
Julane Lowe became “office manager,” and Defendant Ti-shawn A. Kinsey
became “team leader” of the team on which Plaintiff worked. (Id. at 4). Both
women functioned as Plaintiff’s supervisors. Plaintiff complains that, starting
at the time of this transition in management, he was subjected to
discrimination, harassment, and retaliation based on his age and gender. (Id.
As is necessary on a motion to dismiss, the facts set forth in the Second Amended
Complaint (or “SAC”) are accepted as true. Citations to the Second Amended Complaint
are made using the pagination imposed by the Court’s electronic case filing (“ECF”)
system. In considering a motion to dismiss, a court may also consider documents that
are integral to the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53
(2d Cir. 2002). These documents are attached as exhibits to the Declaration of Howard
M. Wexler (the “Wexler Decl.”). For convenience, Defendants’ brief is referred to as “Def.
Br.,” and the transcripts to the April 1, 2014 conference and May 28, 2014 telephone
conference are referred to as “[DATE] Tr.”
During his employment with Verizon, Plaintiff was a member of the Communications
Workers of America (the “CWA”). (SAC 5). This meant the terms and conditions of his
employment were governed by a Collective Bargaining Agreement (a “CBA”) between
Verizon and the CWA. (Wexler Decl. Ex. C). Courts in this Circuit have held that
collective bargaining agreements may constitute documents integral to the complaint.
See Salamea v. Macy’s E., Inc., 426 F. Supp. 2d 149, 153-55 (S.D.N.Y. 2006)
(considering CBA on motion to dismiss for Labor Management Relations Act (“LMRA”)
preemption and exhaustion purposes where dispute as to whether CBA breached, even
where plaintiff did not explicitly rely on CBA in complaint). While the Court does not
rely on the CBA in deciding the instant motion, it does remark on the potential impact
of the document on Plaintiff’s claims. See note 7, infra.
Specifically, Plaintiff complains that on or about December 10, 2011,
Defendant Lowe “made a snide comment about the fact that she didn’t like the
way [his] clothes fit.” (SAC 4). Plaintiff also claims that, unlike all of the other
employees, Lowe did not say “Good morning” to Plaintiff when she arrived at
work each morning, even though Plaintiff’s work station was located near the
entrance to the office. (Id.). Plaintiff further alleges that he was not selected for
“a new retention team [that] was formed” because of “[f]avoritism” and because
Lowe, the supervisor of the team, said that she “wanted ‘new blood.’” (Id. at 5).
With regards to Defendant Kinsey, Plaintiff claims he was “observed
constantly” by her, either “side-by-side or remote.” (SAC 4). According to
Plaintiff, the side-by-side observations “began to take on a bizarre twist” when
Kinsey “would place her hands on [Plaintiff’s] shoulders and press her breasts
against [him].” (Id.). Co-workers joked about the “attention” Plaintiff received
from Kinsey. (Id.). “[A]t times,” claims Plaintiff, Kinsey also “would walk by
[his] desk, touch [his] shoulders and ask, ‘Do you have some money for me?,’”
although Plaintiff effectively concedes that the “money” to which Kinsey was
referring pertained to Plaintiff’s sales to Verizon customers. (Id. at 4-5).
Because of some or all of these incidents, at some point between
December 2011 and August 2012, Plaintiff filed an internal complaint against
Kinsey, and perhaps others, for alleged Title VII violations. (SAC 5). Plaintiff
asserts that “they” (presumably Verizon management) informed Defendants
Lowe and Kinsey of his grievance. (Id.). Plaintiff claims that after he filed this
complaint, observations of his work performance “increased exponentially,” and
“[o]ther managers” also began observing him. (Id.). This increased observation
of his work performance, Plaintiff admits, caused him to “forget the call flow.”
(Id.).3 “Soon thereafter,” Plaintiff claims, he was placed on Verizon’s
disciplinary track, in “Step 2 (reprimand)” of the “performance plan.” (Id.).
Plaintiff also claims that, at some point, he was placed on the less
desirable “Billing pin” telephone duty, rather than the more desirable “Order
pin” duty. (SAC 5 (noting that “Billing pin” involved resolution of “intense
billing issues” with “irate” Verizon customers, while “Order pin” involved
customers who were “only looking to purchase something”)). Plaintiff asserts
that this was because Kinsey would give “Order pin” duty to her friends or
others whom she favored in the office. (Id.). Plaintiff also admitted “a problem
reading the scripted call flow.” (Id.). Because he did not “mesh well” with his
supervisor Kinsey, Plaintiff sought the assistance of other team leaders. (Id.).
Those managers, however, referred him back to Kinsey, which Plaintiff claims
“made it clear there was some sort of retaliation in effect.” (Id.).
In August 2012, Plaintiff was placed on “Step 3” of Verizon’s disciplinary
plan “for not following the call flow.” (SAC 5). While Plaintiff was given some
additional training and a new template at this point, he still had difficulty with
“the volume of irate Verizon users” and the existence of “serious billing
problems.” (Id.). Plaintiff claimed that the “high rate of absenteeism” of his co-
The Court discerns from Plaintiff’s complaint that the “call flow” pertains to the manner
in which Verizon employees such as Plaintiff are trained to respond to customer
inquiries, and that a “template” is a reference sheet setting forth the proper call flow for
different factual circumstances. (See SAC 5-6).
workers increased his workflow, and meant his job included “not only billing
resolution but collections and repair calls.” (Id. at 6). Verizon also
implemented a “new system” at that time, on which Plaintiff needed to be
trained. (Id.). Plaintiff was overwhelmed with what he called “the hostile work
environment, intimidation, and added responsibilities,” and he apparently
could not get enough help for “issues [he] could not solve.” (Id.). On
September 10, 2012, Plaintiff “went out sick with stress disability,” from which
he did not return until December 10, 2012. (Id.).
By that time, Hurricane Sandy had flooded Verizon’s Manhattan office,
and at least some employees in the Business Office, including Plaintiff, were
transferred to an office in Brooklyn. (SAC 6). At this new location, Plaintiff had
a new supervisor, Defendant Christopher Shea. (Id.). Plaintiff advanced
numerous complaints while working at the Brooklyn office, including that the
computer systems did not function properly, the office was kept too hot, he was
asked to perform his job with only limited training on the new computer
system, and he did not have his template for calls. (Id.). When he complained
to Shea that he was “uncomfortable taking calls without [his] template,” Shea
explained that no one had been able to retrieve their belongings from the
flooded Manhattan business office, as unfortunate as that was. (Id.). Plaintiff
claims that this, too, was evidence that the “hostile work environment was
being implemented by all the managerial staff.” (Id.). On February 28, 2013,
Plaintiff was fired by Defendants Shea and Kinsey. (Id.).
On or about April 26, 2013, Plaintiff filed a charge of discrimination with
the United States Equal Employment Opportunity Commission (the “EEOC”) on
the basis of race, sex, and age discrimination, as well as retaliation. (Wexler
Decl. Ex. D).4 Plaintiff received a Dismissal and Notice of Rights letter from the
EEOC on July 31, 2013. (SAC 7-8). Plaintiff filed this suit on October 24,
2013. (Dkt. #1). All Defendants were served by February 27, 2014 (Dkt. #810, 15-16), and all promptly sought leave to move to dismiss Plaintiff’s
complaint in a pre-motion letter (see Dkt. #13).
In light of Plaintiff’s pro se status, and after two conferences before the
Court on Defendants’ proposed motion (Dkt. #17, 22), the Court permitted
Plaintiff to file an Amended Complaint (Dkt. #19), and then a Second Amended
Complaint (Dkt. #24), the latter of which was filed on June 10, 2014. The
Court made clear to Plaintiff during the course of his requests to amend that
the last-filed complaint would be the operative pleading document. (May 28,
2014 Tr. 2-4).
Plaintiff attached his “Dismissal and Notice of Rights” letter from the EEOC to his
Second Amended Complaint; the Court thereby considers him to have incorporated his
EEOC charge into his complaint by reference. In any event, “documents filed with the
EEOC … and determinations issued by [such] agencies are records of administrative
proceedings which may properly be relied upon in connection with the Court’s review of
a motion to dismiss.” Smith v. Westchester County, 769 F. Supp. 2d 448, 461 n.12
(S.D.N.Y. 2011); Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 436 (E.D.N.Y.
2010) (“[W]ith respect to administrative filings (such as the NYSDHR and the EEOC)
and decisions, the Court may consider such documents because they are public
documents filed in state administrative proceedings, as well as because they are
integral to plaintiff’s claims.”).
Plaintiff’s Second Amended Complaint alleges age and gender
discrimination and retaliation under Title VII, the ADEA, the NYSHRL, and the
NYCHRL against Verizon and individuals Lowe, Kinsey, Shea, and Paul
Donovan (the latter of whom is described by Plaintiff as the “Director of the
Manhattan Business Office”). (Dkt. #24). Before the Court is Defendants’
motion, filed July 23, 2014, to dismiss the Second Amended Complaint. (Dkt.
#27). Plaintiff submitted no opposition to Defendants’ motion.
Motions to Dismiss Under Fed. R. Civ. P. 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court should “draw all reasonable inferences in Plaintiff[’s]
favor, assume all well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” (internal quotation marks
omitted)). A plaintiff is entitled to relief if he alleges “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
2007) (“While Twombly does not require heightened fact pleading of specifics, it
does require enough facts to nudge plaintiff’s claims across the line from
conceivable to plausible.” (internal quotation marks omitted) (citing Twombly,
550 U.S. at 570)).
“[C]ourts must construe pro se pleadings broadly, and interpret them to
raise the strongest arguments that they suggest.” Cruz v. Gomez, 202 F.3d
593, 597 (2d Cir. 2000) (internal quotation marks omitted) (citing Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citation and
quotation marks omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed
as to do justice.”). To survive a Rule 12(b)(6) motion to dismiss, however, a pro
se plaintiff’s factual allegations must be at least “enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555.
A court is not bound to accept “conclusory allegations or legal
conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517
F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“[A]lthough a court must accept
as true all of the allegations contained in a complaint, that tenet is inapplicable
to legal conclusions, and threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” (internal
quotation marks omitted) (quoting Iqbal, 556 U.S. at 678)). Moreover, “[w]here
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.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
The Court Dismisses Plaintiff’s Claims of Disparate Treatment Based
on Age and Gender
Title VII makes it unlawful for an employer to “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). To establish a prima facie case of
discrimination, a plaintiff must demonstrate (i) membership in a protected
class5; (ii) qualifications for the position; (iii) an adverse employment action;
and (iv) circumstances surrounding that action giving rise to an inference of
discrimination. Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir.
Plaintiff’s claims under the ADEA and the NYSHRL are analyzed
similarly, see Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir.
1997), but not his claims under the NYCHRL. For many years, courts
construed the NYCHRL to be coextensive with federal and state antidiscrimination laws. See generally Mihalik v. Credit Agricole Cheuveux N. Am.,
Inc., 715 F.3d 102, 108 (2d Cir. 2013). In 2005, however, the New York City
Council amended, and thereby expanded the reach of, the NYCHRL. Id. at 109;
In an ADEA claim, the protected class consists of individuals who are at least 40 years
of age. 29 U.S.C. § 631. Here, Plaintiff was 48 years of age or older when the alleged
incidents giving rise to the Second Amended Complaint took place. (SAC 3).
see Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85.
“Pursuant to these revisions, courts must analyze NYCHRL claims separately
and independently from any federal and state law claims, construing the
NYCHRL’s provisions broadly in favor of discrimination plaintiffs.” Mihalik, 715
F.3d at 109 (internal citations and quotation marks omitted).
The Second Circuit in Mihalik declined to decide “whether, and to what
extent, the McDonnell Douglas burden-shifting analysis has been modified for
NYCHRL claims,” 715 F.3d at 110 n.8, but offered the following analysis:
While it is unclear whether McDonnell Douglas
continues to apply to NYCHRL claims and, if so, to what
extent it applies, the question is also less important
because the NYCHRL simplified the discrimination
inquiry: the plaintiff need only show that [his] employer
treated [him] less well, at least in part for a
discriminatory reason. The employer may present
evidence of its legitimate, nondiscriminatory motives to
show the conduct was not caused by discrimination,
but it is entitled to summary judgment on this basis
only if the record establishes as a matter of law that
“discrimination play[ed] no role” in its actions.
Id. (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38 (1st Dep’t
Mihalik arose in the context of a summary judgment motion, but its
principles have been extended by the Second Circuit to motions to dismiss,
albeit in non-precedential decisions. In Gorokhovsky v. N.Y.C. Hous. Auth., 552
F. App’x 100, 101-02 (2d Cir. 2014) (summary order), the Court reversed in
part a dismissal order, finding that the district court had erred in dismissing
certain NYCHRL claims “because it improperly applied the same standard as in
its analysis of the ADEA, Title VII, and NYSHRL claims.” The Court went on to
say that “[t]o state a claim for discrimination under the NYCHRL, a plaintiff
must only show differential treatment of any degree based on a discriminatory
motive; ‘the NYCHRL does not require either materially adverse employment
actions or severe and pervasive conduct.’” Id. at 102 (quoting Mihalik); see also
Leung v. N.Y. Univ., 580 F. App’x 38, 40 (2d Cir. 2014) (summary order)
(remanding to district court to consider hostile work environment claims
independently under the NYCHRL).
The Supreme Court has held that, to withstand a motion to dismiss, an
“employment discrimination plaintiff need not plead a prima facie case of
discrimination.” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 515 (2002).
Rather, in light of Swierkiewicz and the pleading standards subsequently
articulated in Iqbal, 556 U.S. at 678, the Second Circuit clarified in the context
of the analogous Equal Pay Act that “while a discrimination complaint need not
allege facts establishing each element of a prima facie case of discrimination to
survive a motion to dismiss, it must at a minimum assert nonconclusory
factual matter sufficient to nudge its claims across the line from conceivable to
plausible to proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d
Cir. 2014) (internal citations and quotation marks omitted); accord Brown v.
Daikin Am. Inc., 756 F.3d 219, 228-29 n.10 (2d Cir. 2014) (discussing Title VII
claims); see also Boykin v. KeyCorp, 521 F.3d 202, 214-16 (2d Cir. 2008)
(finding that as long as the complaint gives the defendant “fair notice of [the
plaintiff’s] claim and the grounds upon which it rests,” and “indicate[s] the
possibility of discrimination and thus present[s] a plausible claim for disparate
treatment,” the complaint satisfies the strictures of Fed. R. Civ. P. 8(a)). As a
practical matter, however, while a plaintiff need not allege specific facts
establishing a prima facie case of discrimination in order to withstand a motion
to dismiss, the elements of a prima facie case often provide an outline of what
is necessary to render a plaintiff’s claims for relief plausible. See Wilson v.
N.Y.C. Dep’t of Corr., No. 11 Civ. 9157 (PAE), 2013 WL 922824, at *4 (S.D.N.Y.
Mar. 8, 2013), appeal dismissed (July 24, 2013).
Defendants argue that, even construing Plaintiff’s complaint liberally,
Plaintiff fails to state claims of discriminatory treatment because his Complaint
makes only conclusory allegations and does not provide any indication of how
any alleged adverse or dispreferential employment action was connected to
Plaintiff’s gender or age. (Def. Br. 6-11). The Court agrees: Plaintiff’s
conclusory allegations of disparate treatment discrimination are insufficient to
“nudge [his] claims across the line from conceivable to plausible to proceed,”
EEOC, 768 F.3d at 254, even under the more liberal standard afforded by the
Plaintiff’s Second Amended Complaint recites that he was placed on
Verizon’s disciplinary track, tasked with calls on the apparently less-favorable
“Billing pin” duty, not placed on a special project he calls the “new retention
team,” and ultimately terminated. However, Plaintiff does not allege that any of
these actions took place because of his gender or his age. See, e.g., Patane v.
Clark, 508 F.3d 106, 112 (2d Cir. 2007) (“The sine qua non of a gender-based
discriminatory action claim under Title VII is that the discrimination must be
because of sex.” (citation and quotation marks omitted)). Instead, Plaintiff
simply makes vague, conclusory allegations of “intimidation” and “hostile work
environment,” and does not connect any action by any supervisor (indeed, any
Verizon employee) to his gender or age. (See, e.g., SAC 5 (claiming that being
placed on Verizon’s performance plan “intimidated [him] further” and created a
“hostile work environment”)).6 Such conclusory allegations are insufficient to
survive a motion to dismiss. See EEOC, 768 F.3d at 254.
Nor does Plaintiff set forth any factual circumstances from which a
gender- or age-based motivation for these actions might be inferred. Plaintiff
does not, for example, allege that Kinsey or any other defendant made any
remarks that could fairly be viewed as reflecting discriminatory animus. The
only comments the Second Amended Complaint catalogues are Lowe’s
comment that she “didn’t like the way [Plaintiff’s] clothes fit”; Kinsey’s question,
“Do you have some money for me?”; and Lowe’s comment that she “wanted
‘new blood’” on the “new retention team.” (SAC 4-5). None of these comments
directly remarks on Plaintiff’s gender or has any sexual overtones. Nor do they,
individually or collectively, give rise to a reasonable inference that Verizon
discriminated against Plaintiff on the basis of gender. See Sank v. City Univ. of
N.Y., No. 10 Civ. 4975 (RWS), 2011 WL 5120668, at *9 (S.D.N.Y. Oct. 28, 2011)
(dismissing pro se plaintiff’s discrimination claim because “[t]he Complaint
This Opinion considers Plaintiff’s claim for a gender- and age-based hostile work
environment separately below.
does not, for instance, allege that any specific decision-maker at City College
made comments to or about [plaintiff] from which discriminatory animus based
on gender could reasonably be inferred”); see generally Chertkova v. Conn. Gen.
Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (noting that “circumstances that give
rise to an inference of discriminatory motive include actions or remarks made
by decisionmakers that could be viewed as reflecting a discriminatory
Lowe’s “new blood” comment similarly cannot give rise to a reasonable
inference of age discrimination. See, e.g., De la Cruz v. City of New York, 783
F. Supp. 2d 622, 643 (S.D.N.Y. 2011) (finding that reference to “new blood” did
not raise inference of discrimination without more); Veleanu v. Beth Isr. Med.
Ctr., No. 98 Civ. 7455 (VM), 2000 WL 1400965, at *5 (S.D.N.Y. Sept. 25, 2000)
(finding comment referring to “fresh blood” that was directed to length of
tenure, which could apply with equal force to employees under age 40, was
age-neutral); see also Fortier v. Ameritech Mobile Commc’ns, Inc., 161 F.3d
1106, 1113 (7th Cir. 1998) (finding that statements such as needing “new
blood” or an employee with a “lot of energy,” standing alone, do not raise an
inference of age discrimination); cf. Abdu-Brisson v. Delta Air Lines, Inc., 239
F.3d 456, 468 (2d Cir. 2001) (upholding grant of summary judgment after
finding, among other things, that “the stray remarks of a decision-maker,
without more, cannot prove a claim of employment discrimination”). Plaintiff
does not allege that Lowe specifically mentioned anything about his age. And it
would be rank speculation to infer that the comment had anything to do with
Plaintiff’s age, since it could just as easily refer to bringing new members into a
group, regardless of age, for a fresh perspective. Not only does Plaintiff note in
the Second Amended Complaint that he was in fact included in a previous
“retention group,” but also he admits that, while he had seniority over “most of
the people who were selected,” he did not have seniority over all of them.
(SAC 5 (emphasis added)).7 Conversely, Plaintiff does not allege that all of the
members selected for the group were younger than he. Under these
circumstances, the Court cannot reasonably draw an inference of
discriminatory animus from the “new blood” statement.8
The Second Amended Complaint also nowhere alleges that younger or
female employees were given preferential treatment as compared to Plaintiff,
which circumstances might also give rise to an inference of discrimination. See
Seniority, of course, is typically used to refer to an employee’s tenure at a company as
opposed to the employee’s age. However, because Plaintiff is pro se and has made
claims of age discrimination, the Court considers his assertions regarding “seniority” in
that context. As Defendants argue, to the extent Plaintiff argues that the terms of his
employment or his termination were not consonant with his seniority at the company,
those assertions are in fact allegations that Defendants breached the CBA’s seniority
provisions. (See Def. Br. 19-21). Such claims could not be brought under the state and
city laws on which Plaintiff relies because they would be preempted by Section 301 of
the LMRA. See Morrissey v. Verizon Commc’ns Inc., No. 10 Civ. 6115 (PGG), 2011 WL
2671742, at *4 (S.D.N.Y. July 7, 2011) (“Courts generally hold that where a state-law
discrimination claim turns on application of a collective bargaining agreement’s
seniority provisions, the claim is preempted by Section 301 of the LMRA.” (collecting
cases)). Moreover, while “[t]he Court affords plaintiff special solicitude as a pro se
litigant[,] [it] declines to consider plaintiff’s claims as if he had asserted them under
section 301 because plaintiff did not exhaust the CBA grievance procedures,”
Maldonado v. Good Day Apartments, Inc., No. 12 Civ. 2017 (PKC)(AJP), 2013 WL
3465793, at *8 (S.D.N.Y. July 9, 2013), and before bringing a claim under Section 301,
“[o]rdinarily an employee is required to attempt to exhaust any grievance or arbitration
remedies provided in the collective bargaining agreement,” Vera v. Saks & Co., 335 F.3d
109, 118 (2d Cir. 2003) (citation and alterations omitted).
Additionally, as Defendants note, Plaintiff fails to allege any facts indicating that
Plaintiff actually applied for or expressed interest in participating in the “new retention
team” before its selection (Def. Br. 11), making even more remote an inference of
Patane, 508 F.3d at 112 (dismissing gender discrimination claim where
plaintiff, inter alia, failed to allege disparate treatment).
Finally, while affording Plaintiff latitude because of his pro se status, the
Court cannot draw unreasonable inferences that are not consistent with the
actual allegations contained in the Second Amended Complaint. See Pahuja v.
Am. Univ. of Antigua, No. 11 Civ. 4607 (PAE), 2012 WL 6592116, at *1 (S.D.N.Y.
Dec. 18, 2012) (“Although this Court is mindful of the special solicitude
afforded to a pro se plaintiff, courts cannot read into pro se submissions claims
that are not consistent with the pro se litigant’s allegations[.]” (internal
citations and quotation marks omitted)); see also Giambattista v. Am. Airlines,
Inc., 584 F. App’x 23, 25 (2d Cir. 2014) (summary order) (finding the court need
not credit “general, conclusory allegations when they are belied by more
specific allegations of the complaint” (internal citation and quotation marks
omitted)). In this regard, Plaintiff’s own Complaint alleges that both the more
favorable “Order pin” duty and positions on the “new retention team” were
given to other employees based on “favoritism” (SAC 5) — and, a fortiori, not
As for the disciplinary performance plan, Plaintiff admits that he was
placed in the plan for “forget[ting] the call flow,” and that he advanced to the
final step before termination, “Step 3,” for “not following the call flow.” (SAC 5).
These are work-performance, and not discriminatory, reasons for Plaintiff to
have been placed on the performance plan. Moreover, Plaintiff not only
concedes, but sets forth in striking detail, his ongoing work-performance
problems even after he was placed in “Step 3”: despite additional training and a
new template, Plaintiff continued to have difficulty with “the volume of irate
Verizon users” and “serious billing problems” (id.); he was overwhelmed by his
workflow (id. at 6); he was frustrated with Verizon’s new computer system
despite being provided the same training as other employees (id.); and he
struggled with calls without his template, which had been left in the flooded
Manhattan office through no fault of Defendants’ (id.). These facts belie
Plaintiff’s conclusory allegations that he suffered illegal discrimination; indeed,
although Plaintiff alleges he was fired “callously,” he does not explicitly allege
that he was fired for any discriminatory reason, or allege any facts that could
give rise to such an inference. (Id.).
For the foregoing reasons, Plaintiff has not alleged any discrimination in
the form of disparate treatment that would plausibly entitle him to relief under
federal, state, or city law. Accordingly, those claims under Title VII, the ADEA,
the NYSHRL, and the NYCHRL are dismissed with prejudice.
The Court Dismisses All But One of Plaintiff’s Gender- and AgeBased Hostile Work Environment Claims
Plaintiff also alleges sexual and age harassment in the form of a hostile
work environment under Title VII, the ADEA, the NYSHRL, and the NYCHRL.
Defendants argue first, that Plaintiff’s sexual harassment claim is time-barred,
and second, that Plaintiff fails plausibly to plead that he was subjected to a
hostile work environment on account of his age or gender. Because Plaintiff’s
Second Amended Complaint does not specify dates or time periods for many of
the incidents of which he complains, this Opinion addresses only the second of
Defendants’ arguments.9 While Plaintiff’s claims are plainly insufficient under
state or federal law, his claim of a hostile work environment based on gender
satisfies — just barely — the lower pleading threshold of the NYCHRL.
The Supreme Court has explained that Title VII’s prohibition of
employment-related discrimination on the basis of race, color, religion, sex, or
national origin extends to “a discriminatorily hostile or abusive [work]
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A hostile
work environment claim under that statute requires “conduct [i] that is
‘objectively’ severe or pervasive — that is, if it creates an environment that a
reasonable person would find hostile or abusive [the ‘objective’ requirement],
[ii] that the plaintiff subjectively perceives as hostile or abusive [the ‘subjective’
requirement], and [iii] that creates such an environment because of
plaintiff’s … characteristic protected by Title VII.” Gregory v. Daly, 243 F.3d
687, 691-92 (2d Cir. 2001) (internal citations omitted); see also Patane, 508
F.3d at 113.
Hostile work environment claims arising under the ADEA and the
NYSHRL are reviewed under the same standard as Title VII claims. See
That is not to say that Plaintiff’s claims are not time-barred; indeed, as Defendants
argue, given the dates that Plaintiff does plead and the context of the claims, it would
appear that some of his federal claims, at least as they relate to his allegations of sexual
harassment under Title VII, would be time-barred. (Def. Br. 12-13). However, because
the Court finds those claims to be without merit, as discussed below, it is not necessary
to reach this issue or to allow Plaintiff to re-plead with more specificity as to timing.
Further, the Court notes that both New York State and New York City employment
discrimination claims are governed by a three-year statute of limitations, so those
claims would not be time-barred. See N.Y. C.P.L.R. § 214(2); N.Y.C. Admin. Code § 8502(d).
Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 240-41 (2d Cir. 2007)
(ADEA); Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d
Cir. 2010) (NYSHRL). However, the NYCHRL permits liability for harassment
that does not rise to the level of “severe” or “pervasive” conduct, but only
amounts to “unwanted gender- [or age-]based conduct.” Anderson v. Davis
Polk & Wardwell LLP, 850 F. Supp. 2d 392, 404 (S.D.N.Y. 2012) (citing
Williams, 872 N.Y.S.2d at 38). Accordingly, “claims under the [NYCHRL] must
be given ‘an independent liberal construction.’” Loeffler v. Staten Island Univ.
Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (quoting Williams, 872 N.Y.S.2d at 31).
A plaintiff under the NYCHRL is required only to “show differential
treatment — that [he] [was] treated ‘less well’ — because of a discriminatory
intent.” Mihalik, 715 F.3d at 110; see also id. at 102 (noting that, in a hostile
work environment claim under the NYCHRL, “even a single comment may be
actionable in appropriate circumstances.” (internal quotation marks omitted));
Hernandez v. Kaisman, 957 N.Y.S.2d 53, 58-59 (1st Dep’t 2012) (“Indeed, we
can only dismiss the [NYCHRL] claim if we determine that this is a ‘truly
insubstantial case’ in which defendant’s behavior cannot be said to fall within
the ‘broad range of conduct that falls between “severe and pervasive” on the
one hand and a “petty slight or trivial inconvenience” on the other.’” (quoting
Williams in summary judgment context)).10
Citing Williams, the Mihalik Court observed that “the NYCHRL is not a general civility
code, and a defendant is not liable if the plaintiff fails to prove the conduct is caused at
least in part by discriminatory or retaliatory motives, or if the defendant proves the
conduct was nothing more than petty slights or trivial inconveniences.” 715 F.3d at 113
(quoting Williams, 872 N.Y.S.2d at 39-40 & n.27). Whether a court may employ this
As with a discrimination claim, at the pleading stage a plaintiff need not
establish a prima facie case of hostile work environment; he need only make a
short and plain statement of the claim that shows entitlement to relief and that
gives the defendant fair notice of the claim for hostile work environment and
the grounds upon which that claim rests. See Swierkiewicz, 534 U.S. at 512.
Plaintiff’s Claims for Hostile Work Environment Because of
Age Are Dismissed with Prejudice
All of Plaintiff’s claims of age harassment fail: as Defendants argue,
Plaintiff has not asserted that any of the conduct of which he
complains — snide remarks, shoulder touches, failures to say “Good morning,”
or observations of Plaintiff’s work performance — is connected to his age.
While it is true that Plaintiff need not “append to each allegation of harassment
the conclusory declaration ‘and this was done because of my [protected
characteristic]’,” he still must allege “factual circumstances that permit the
inference that plaintiff was subjected to a hostile work environment because of
[his protected characteristic].” Gregory, 243 F.3d at 694 (emphasis added); see
standard at the motion to dismiss stage, however, is not clear. For starters, the
Williams Court offered this standard as a means of effectuating the broad reading of the
NYCHRL sought by the Restoration Act:
The way to avoid this result [i.e., reading the statute as a “general
civility code”] is not by establishing an overly restrictive “severe or
pervasive” bar, but by recognizing an affirmative defense whereby
defendants can still avoid liability if they prove that the conduct
complained of consists of nothing more than what a reasonable
victim of discrimination would consider “petty slights and trivial
872 N.Y.S.2d at 40-41. The fact that the standard was presented initially as an
affirmative defense would suggest that it is premature to employ it at the motion to
dismiss stage, although a few New York State courts have done so. See, e.g., Massaro v.
Dep’t of Educ. of N.Y.C., 993 N.Y.S.2d 905, 905-06 (1st Dep’t 2014); Kim v. Goldberg,
Weprin, Finkel, Goldstein, LLP, 987 N.Y.S.2d 338, 344 (1st Dep’t 2014).
also Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (“[T]he
plaintiff must establish that the hostile or abusive treatment was because of
his or her sex.” (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
Plaintiff simply does not allege that any purportedly hostile actions took
place “because of” his age. Therefore, even under the more liberal standard of
the NYCHRL, Plaintiff’s hostile work environment claims based on age warrant
dismissal. See Harris v. NYU Langone Med. Ctr., No. 12 Civ. 454 (RA)(JLC),
2013 WL 3487032, at *27 (S.D.N.Y. July 9, 2013) (dismissing NYCHRL hostile
work environment claims where plaintiff made “no allegations that she was
disciplined … because of her race or disability”), report and recommendation
adopted as modified, No. 12 Civ. 454 (RA), 2013 WL 5425336 (S.D.N.Y.
Sept. 27, 2013); Fattoruso v. Hilton Grand Vacations Co., LLC, 873 F. Supp. 2d
569, 578 (S.D.N.Y. 2012) (dismissing NYCHRL hostile work environment claim
because plaintiff alleged nothing to indicate that he was treated unequally
based on his gender), aff’d, 2013 WL 2123088 (2d Cir. May 17, 2013); Williams
v. Metro-North Commuter R.R. Co., No. 11 Civ. 7835 (CM), 2012 WL 2367049, at
*13 (S.D.N.Y. June 20, 2012) (finding plaintiff’s failure to allege that
defendant’s acts were “perpetrated against him because of either his race or his
gender” was “fatal to his hostile work environment claim”); Ortiz v. Standard &
Poor’s, No. 10 Civ. 8490 (NRB), 2011 WL 4056901, at *4 & n.10 (S.D.N.Y. Aug.
29, 2011) (dismissing plaintiff’s hostile work environment claims under Title
VII, the NYSHRL, and the NYCHRL because they failed “to state a claim under
even the more permissive NYCHRL standard” and did not “show that he
experienced disparate treatment because of his age or disability”).
The only statement that Plaintiff even hints might be tied to his age is
Defendant Lowe’s comment that she wanted “new blood” on the “new retention
team.” But, for the reasons discussed above, any connection of this phrase to
Plaintiff’s age is dubious. Even if it were referring to Plaintiff’s age, such an
isolated comment cannot plausibly state a claim for hostile work environment.
See Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004) (“Simple teasing,
offhand comments, or isolated incidents of offensive conduct (unless extremely
serious) will not support a claim of discriminatory harassment.”); see also
Johnson v. City of New York, No. 10 Civ. 6294 (RJS), 2012 WL 1076008, at *7
(S.D.N.Y. Mar. 28, 2012) (finding that plaintiff did not establish that comment
that he was an “idiot” was related to his disability, and that, in any event,
single comment cannot support a hostile work environment claim). Thus,
Plaintiff’s hostile work environment claims based on age under federal, state,
and city law are dismissed.
Plaintiff’s Federal and State Claims for Hostile Work
Environment Because of His Gender Are Dismissed
Plaintiff’s claims of a gender-based hostile work environment — with one
exception discussed below — fail for similar reasons. For the great majority of
the purportedly hostile actions — the snide remarks, the failures to say “Good
morning,” the observations of Plaintiff’s work performance, the refusal on the
part of other managers to provide assistance — Plaintiff fails to tie these
actions to his gender. Moreover, Plaintiff’s allegations do not permit the
inference that Plaintiff was treated the way he was because he was a man. See
Gregory, 243 F.3d at 694; Redd, 678 F.3d at 175. As to these allegations,
Plaintiff’s failure to allege a link to his gender requires that they be dismissed.
See Section 2.b., supra (collecting cases); see also Winston v. City of New York,
No. 12 Civ. 0395 (FB)(VVP), 2013 WL 4516097, at *3 (E.D.N.Y. Aug. 23, 2013)
(“Dispositive to the inquiry, a plaintiff must demonstrate that the hostility is
‘discriminatory’ — that is, impermissibly based upon gender.”), on
reconsideration, No. 12 Civ. 0395 (FB)(VVP), 2014 WL 2957488 (E.D.N.Y. July
However, reading his Second Amended Complaint generously, Plaintiff’s
allegations could be construed to suggest that the incidents in which
Defendant Kinsey “would place her hands on [Plaintiff’s] shoulders and press
her breasts against [Plaintiff]” or “would walk by [Plaintiff’s] desk, touch [his]
shoulders, and ask, ‘Do you have some money for me?’” are connected to
gender as unwanted touchings from an individual of the opposite sex.
Additionally, as it relates to Kinsey’s question about money, Plaintiff states that
“the comment itself was emasculating and not proper office decorum.” (SAC 5
As a general matter, neither federal, state, nor city discrimination laws
are intended to operate as a “general civility code” for the workplace. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (discussing
Title VII); Williams, 872 N.Y.S.2d at 40 (discussing the NYCHRL). “[Im]proper
office decorum,” without more, is simply not actionable under discrimination
laws, however uncomfortable it may make someone. Plaintiff’s conclusory
allegation that a comment devoid of any reference to his sex or apparent
discriminatory animus was “emasculating” is simply not enough to give rise to
any reasonable inference of a hostile work environment based on sex.
Plaintiff’s allegations regarding “observations” and physical touchings
also do not amount to a plausible claim under federal or state law because they
are neither severe nor pervasive. A case decided in this District, Anderson v.
Davis Polk & Wardwell LLP, 850 F. Supp. 2d 392 (S.D.N.Y. 2012), is
instructive. In Anderson, the plaintiff claimed a hostile work environment
where he alleged, “[w]ithout specifying a time period,” that his supervisor
“would come around my cube on occasions and place her vagina literally on my
left shoulder or inches from my face” and “would at times come to my cube and
position herself in such a way that her vagina is practically sitting on my left
shoulder, or would stand so close to me that if I was to turn to my left my nose
would be directly in front of the bottom of her stomach.” 850 F. Supp. 2d at
404. The district court dismissed plaintiff’s claims, holding:
We find that plaintiff’s allegations at most support the
inference that on some occasions [individual
defendant], who was plaintiff’s supervisor and
accordingly had reason to visit him in his cubicle, …
stood too close to plaintiff. From an objective
perspective, her conduct is far short of what might be
called “severe” or “pervasive” and so is facially
insufficient to support a claim under [Title VII and the
Id. (citing Williams, 872 N.Y.S.2d at 40); see also Redd, 678 F.3d at 177
(“Casual contact that might be expected among friends — a hand on the
shoulder, a brief hug, or a peck on the cheek — would normally be unlikely to
create a hostile environment in the absence of aggravating circumstances such
as continued contact after an objection.” (citations and alterations omitted));
Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (“[I]ncidents must be more
than episodic; they must be sufficiently continuous and concerted in order to
be deemed pervasive.” (internal citation and quotation marks omitted)).
The Second Circuit and district courts within this Circuit have routinely
rejected gender-based hostile work environment claims alleging similar or even
more offensive incidents. See, e.g., Cristofaro v. Lake Shore Cent. Sch. Dist.,
473 F. App’x 28, 30 (2d Cir. 2012) (summary order) (holding that where, over a
seven- year period, an employee’s supervisor “occasionally commented on
[plaintiff’s] physical appearance,” “participated in a bet with three other male
employees as to when [the supervisor] would be able to engage [plaintiff] in
sexually explicit conversation,” engaged “in conversation unrelated to work
once a month for three-and-half years,” and “briefly made contact with the side
of [plaintiff’s] body,” among other actions, the “record [was] insufficient as a
matter of law to permit a reasonable factfinder to identify a hostile work
environment based on sex” under federal or state law); Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 763-64 (2d Cir. 1998) (finding insufficient evidence
of hostile work environment under federal and state law where co-employee
“told [plaintiff] she had been voted the ‘sleekest ass’ in the office” and
“deliberately touched [plaintiff’s] breasts with some papers that he was holding
in his hand”); Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450 (LAP),
1999 WL 796172, at *11 (S.D.N.Y. Sept. 30, 1999) (holding that allegations that
plaintiff’s supervisor “stood so close to [plaintiff] that he brushed up against
her on ‘some occasions’” were insufficient to support claim of hostile work
environment); id. (holding that allegations that plaintiff’s supervisor would put
his arm around plaintiff’s shoulder or through her arm and say “Come, Wife,”
“Come, Dear,” or “Let’s go, Hon” insufficient to support claim of hostile work
environment); Lamar v. NYNEX Serv. Co., 891 F. Supp. 184, 185 (S.D.N.Y.
1995) (holding that allegations that plaintiff’s supervisor touched her hand,
said she looked “hot,” and stared at her were “too mild and innocuous to
constitute sexual harassment as a matter of law” under Title VII).
By the same token, this case is distinguishable from those in which
courts have sustained hostile work environment claims: Plaintiff does not, for
example, allege Kinsey’s conduct was a sexual advance, that it happened on a
daily basis, or that he asked Kinsey to stop touching him but that the
touchings continued anyway. See, e.g., Holtz v. Rockefeller & Co., Inc., 258
F.3d 62, 70, 74-76 (2d Cir. 2001) (finding a triable issue on Title VII and ADEA
claims in summary judgment context where harasser touched plaintiff in
unwelcome manner “constantly or daily,” “touch[ed] her hair a lot,” made
“obscene leers at her,” “tried to peer down her blouse and up her skirt,” and
made “approximately ten or twenty” insinuating remarks about her sex life);
Guzman v. Macy’s Retail Holdings, Inc., No. 09 Civ. 4472 (PGG), 2010 WL
1222044, at *5 (S.D.N.Y. Mar. 29, 2010) (concluding that allegation of sexual
advance in which supervisor pressed his genitals against female plaintiff
employee repeatedly, after having been asked to stop, was sufficient to
withstand motion to dismiss claims made under federal and state law).
The vast majority of Plaintiff’s allegations in the Second Amended
Complaint concern his frustrations and annoyances with his workplace and
with supervisors with whom he did not get along. See Alfano, 294 F.3d at 377
(“Everyone can be characterized by sex, race, ethnicity, or (real or perceived)
disability; and many bosses are harsh, unjust, and rude. It is therefore
important in hostile work environment cases to exclude from consideration
personnel decisions that lack a linkage or correlation to the claimed ground of
discrimination. Otherwise, the federal courts will become a court of personnel
appeals.”). These grievances are not actionable as a hostile work environment
under federal or state law.
Whether Plaintiff’s allegations support a claim under the more expansive
NYCHRL is a closer question. Reading the Second Amended Complaint
liberally, Plaintiff alleges that (i) he was attuned (as a result of prior work
experience) to “detecting insensitivity or hostility in others” (SAC 4); (ii) though
Plaintiff had always been outnumbered by women in his work experiences, he
never felt threatened or intimidated by women until he was supervised by Lowe
and Kinsey (id.); (iii) Kinsey observed him “constantly” while supervising him,
but her observations “began to take on a bizarre twist as Ms. Kinsey would
place her hands on my shoulders and press her breasts against me” (id.);
(iv) Kinsey’s behavior was blatant enough to merit comments from co-workers
about her attention (id.); (v) separate and apart from her remote or side-by-side
“observations” of Plaintiff’s work, Kinsey would walk by and touch Plaintiff’s
shoulders while asking, “Do you have some money for me?” (id. at 5); (vi) only
after Plaintiff filed an internal complaint at Verizon did the touching stop (id.).
To be sure, Plaintiff’s allegations are inartful; there is no indication, for
instance, of the number and frequency of these episodes, nor does Plaintiff
specifically allege that the touchings took place because of his gender.
However, in light of Plaintiff’s prefatory allegations about his training in sexual
harassment and the potentially gender-charged physicality of the conduct
alleged, the Court understands Plaintiff to be alleging that the repeated
touchings to which he was subjected occurred because of his gender. This is
barely sufficient, but sufficient, under the NYCHRL for Rule 12(b)(6) purposes.
See, e.g., Sletten v. LiquidHub, Inc., No. 13 Civ. 1146 (NRB), 2014 WL 3388866,
at *8 (S.D.N.Y. July 11, 2014) (denying motion to dismiss NYCHRL hostile work
environment claim brought by employee who heard, secondhand, that other
employees were mocking him based on his sexual orientation, which learning
adversely affected his work environment and “meant that he was treated less
well than other employees based on his sexual orientation”); Garrigan v. Ruby
Tuesday, Inc., No. 14 Civ. 155 (LGS), 2014 WL 2134613, at *4 (S.D.N.Y. May
22, 2014) (denying motion to dismiss hostile work environment claim under the
NYCHRL, where the complaint alleged that the defendant “treated Plaintiff less
well by spreading rumors about her at work”).
The Court Dismisses Plaintiff’s Retaliation Claims
The Court also understands Plaintiff to bring claims for retaliation
pursuant to Title VII, the ADEA, the NYSHRL, and the NYCHRL.11 Defendants
argue that Plaintiff’s retaliation claims fail because Plaintiff fails to establish
any causal connection between his protected activities and any adverse
Broadly speaking, federal, state, and city law make it unlawful for an
employer to retaliate against an employee because that employee has made a
charge or complaint of discrimination. See 42 U.S.C. § 2000e-3(a) (Title VII);
29 U.S.C. § 623(d) (ADEA); N.Y. Exec. Law § 296(7) (NYSHRL); N.Y.C. Admin.
Code § 8-107(7) (NYCHRL). In order to establish a prima facie case of
retaliation, an employee must show: “[i] participation in a protected activity
known to the defendant; [ii] an employment action disadvantaging the plaintiff;
and [iii] a causal connection between the protected activity and the adverse
employment action.” Anderson, 850 F. Supp. 2d at 413 (citing Richardson v.
Comm’n on Human Rights & Opportunities, 532 F.3d 114, 123 (2d Cir. 2008)).
The same analysis applies to Title VII, the ADEA, and the NYSHRL; under
the NYCHRL, a plaintiff need not prove any materially adverse employment
action, only that the employer “engaged in conduct that was reasonably likely
As noted above, while still employed at Verizon, Plaintiff filed an internal complaint.
(SAC 5). Plaintiff was terminated in February 2013, and did not file his EEOC charge
until April 2013. The Court therefore understands that Plaintiff’s allegations of
retaliation relate to his internal complaint, and not the EEOC charge.
to deter a person from engaging” in a protected activity. Mihalik, 715 F.3d at
112; see also Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (stating that
ADEA claims are analyzed under the same framework as claims brought
pursuant to Title VII).
Despite Plaintiff’s mixed record of success in alleging disparate treatment
and hostile work environment claims, he still may be able to succeed in setting
forth a retaliation claim. See Holland v. City of New York, No. 10 Civ. 2525
(PKC), 2011 WL 6306727, at *9 (S.D.N.Y. Dec. 16, 2011) (noting “plaintiff need
not establish a prima facie case of discrimination, but must nonetheless allege
evidence stating a plausible claim of retaliation” (citing Boykin, 521 F.3d at
213-14)). Again, the elements of a prima facie retaliation claim provide the
Court a guide to determine what is necessary to render a plaintiff’s claims for
relief plausible, although a plaintiff need not set forth specific facts establishing
a prima facie case. Wilson, 2013 WL 922824, at *4.
Defendant does not dispute that the Second Amended Complaint
adequately pleads that Plaintiff engaged in a protected activity by filing an
internal discrimination complaint at Verizon. (See SAC 5; Def. Br. 16). As
relevant to his retaliation claims, Plaintiff alleges that after he filed his internal
[T]hey informed Ms. Lowe and Kinsey of my grievances
and the two set out to make my working conditions
more difficult. The side by side and remote observations
increased exponentially. Other managers were
instructed to observe me…. Soon thereafter I was
place[d] on Step 2 (reprimand) of the pep (performance
(SAC 5).12 Plaintiff fails to specify when he filed his internal complaint and
when these allegedly retaliatory actions took place. Because the next date set
forth in the Second Amended Complaint is August 2012, by which time he had
been put on “Step 3” of Verizon’s performance plan (id.), the Court can draw
the reasonable inference that Plaintiff filed his internal complaint in July 2012
or earlier (but after December 10, 2011, which is the date of his first
complained-of conduct). In February 2013, Plaintiff was fired. (SAC 6).
First of all, Plaintiff’s complaints about his work performance being
“observed” are “too non-specific to support a retaliation claim.” See Baez v.
Visiting Nurse Serv. of N.Y. Family Care Serv., No. 10 Civ. 6210 (NRB), 2011 WL
5838441, at *6 (S.D.N.Y. Nov. 21, 2011) (“The generalized ‘harassment,
bullying, intimidations, and stalking’ plaintiff claims to have experienced after
filing [a complaint] are too non-specific to support a retaliation claim.”).
Nonetheless, as Defendants recognize, being placed in a disciplinary program
The Court notes here that Plaintiff alleges he was put on “Step 2” of the “performance
plan” subsequent to his internal discrimination complaint. This suggests that Plaintiff
had been placed in “Step 1” of the plan prior to his internal complaint, which, as an
adverse employment action due to poor performance beginning prior to his complaint,
would seem to vitiate any causal connection. See, e.g., Deebs v. Alstom Transp., Inc.,
346 F. App’x 654, 657-58 (2d Cir. 2009) (summary order) (finding where adverse
employment actions due to poor performance preceded plaintiff’s filing of an EEOC
complaint, no causal connection could arise despite temporal proximity); Dixon v. Int’l
Fed’n of Accountants, No. 09 Civ. 2839 (HB), 2010 WL 1424007, at *6 (S.D.N.Y. Apr. 9,
2010) (“[Plaintiff] was subjected to repeated critiques and complaints about her
management and performance skills before she ever lodged any complaints about
discrimination and, as such, her retaliation claim must be dismissed.”), aff’d, 416 F.
App’x 107 (2d Cir. 2011) (summary order). However, given the lack of temporal
specificity in the Second Amended Complaint and the dearth of factual allegations
regarding the structure of Verizon’s disciplinary program, the Court cannot consider
this issue at this time.
and being fired both unquestionably rise to the level of adverse employment
action (and, therefore, certainly meet the lower NYCHRL threshold of “conduct
that was reasonably likely to deter a person from engaging” in a protected
activity, Mihalik, 715 F.3d at 112).
But, even assuming that Plaintiff has alleged that he engaged in a
protected activity and subsequently suffered adverse employment actions, he
has again failed properly to allege a causal nexus. A plausible inference of a
causal connection can be drawn either “[i] indirectly, by showing that the
protected activity was followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment of fellow employees
who engaged in similar conduct; or [ii] directly, through evidence of retaliatory
animus directed against the plaintiff by the defendant.” Hicks v. Baines, 593
F.3d 159, 170 (2d Cir. 2010) (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000)). Here, Plaintiff does not plausibly allege consequential
disparate treatment or retaliatory animus, so he must rely on temporal
“While the Second Circuit has articulated no ‘bright line’ rule for when an
alleged retaliatory action occurs too far in time from the exercise of a federal [or
state] right to be considered causally connected, it is well settled that when
‘mere temporal proximity’ is offered to demonstrate causation, the protected
activity and the adverse action must occur ‘very close’ together.” Henry v. NYC
Health & Hosp. Corp., 18 F. Supp. 3d 396, 412 (S.D.N.Y. 2014) (citations
omitted) (analyzing federal and state rights together); see also Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (holding that to establish causation
in retaliation claim, “temporal proximity must be ‘very close’”); Baldwin v.
Cablevision Sys. Corp., 888 N.Y.S.2d 1, 6 (1st Dep’t 2009) (concluding, in
context of NYCHRL retaliation claim, that four months between protected act
and alleged retaliatory action was “not temporally proximate enough to satisfy
the causality element of plaintiff’s retaliation claim” (citing Clark Cnty. Sch.
Dist., 532 U.S. at 273)).
In Henry, the court found that plaintiff’s allegations that “defendants
retaliated against her when she complained” and “after she complained and/or
the conduct became known to others,” failed “to state with even a modicum of
specificity when the relevant events occurred.” Henry, 18 F. Supp. 3d at 412
(emphases in Henry). The Court held that “[s]uch conclusory allegations are
simply too vague in nature and non-specific as to time to serve as a basis for
her retaliation claims.” Id. (internal citation and quotation marks omitted); see
also Winston, 2013 WL 4516097, at *3 (dismissing retaliation claim because
plaintiff’s “blanket statement that the demotion took place ‘upon return from a
vacation taken shortly after [the protected activity]’ [was] insufficient to satisfy
Iqbal’s standards”); cf. Winston, 2014 WL 2957488, at *2 (on reconsideration,
permitting plaintiff to amend her complaint with a specific time frame and
finding that as amended, it pled facts sufficient to raise an inference of
retaliatory animus). The Henry court granted defendants’ motion to dismiss
the plaintiff’s retaliation claims based on Title VII and the NYSHRL. Henry, 18
F. Supp. 3d at 413.
Here, Plaintiff uses language just as vague and non-specific as in Henry
and Winston when referring to when he was placed on Verizon’s disciplinary
program: he simply states that his placement in “Step 2” occurred “soon
thereafter” and says nothing about his placement in “Step 1.” (SAC 5). If
Plaintiff filed his internal complaint in July 2012 and was also placed in the
performance program in July 2012, perhaps this could raise a reasonable
inference of retaliatory animus. But if Plaintiff lodged his complaint in
December 2011 and was not placed in the performance program until July
2012, it could not. See, e.g., Clark Cnty. Sch. Dist., 532 U.S. at 273-74 (noting
that the two events must be “very close,” and that a proximity of three months
or more is insufficient); Dixon v. Int’l Fed’n of Accountants, 416 F. App’x 107,
110 (2d Cir. 2011) (summary order) (finding four months, without more, to be
insufficient circumstantial evidence of causation). Likewise, Plaintiff’s firing in
February 2013, which occurred seven months or more after he lodged his
internal complaint, is not close enough in time to his filing of the internal
complaint to give rise to any plausible causal inference. Accordingly, Plaintiff’s
retaliation claims under Title VII, the ADEA, the NYSHRL, and the NYCHRL
must be dismissed.
The Court Will Grant Plaintiff Leave to Amend His Retaliation
Plaintiff filed no opposition to Defendants’ motion to dismiss, and he has
not otherwise sought leave to amend his Second Amended Complaint.
However, the principle that the “court should freely give leave [to amend a
pleading] when justice so requires,” Fed R. Civ. P. 15(a)(2), is particularly
applicable to pro se plaintiffs, see Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003). “A pro se complaint should not be dismissed without the court granting
leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010). “Where it appears that granting leave to amend is
unlikely to be productive, however, it is not an abuse of discretion to deny leave
to amend.” Lucente v. Int’l Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002)
Here, as it concerns Plaintiff’s discrimination and hostile work
environment claims, despite having been given several opportunities to amend
his complaint, Plaintiff has not alleged facts sufficient to “nudge [his] claim[ ]
across the line from conceivable to plausible.” Twombly, 550 U.S. at 547.
Plaintiff was put on notice, both by Defendants’ pre-motion letter (Dkt. #13)
and by the Court during the April 1 and May 28, 2014 conferences (Dkt. #17,
22), that there were deficiencies as to these claims, including a lack of causal
nexus with his gender and age. The Court gave him two opportunities to
amend. Nonetheless, with the exception of the claim for gender-based hostile
work environment under the NYCHRL, Plaintiff’s allegations are utterly
conclusory and plead no factual matter that ties the conduct of which he
complains to his gender or his sex. They are paradigmatic examples of an
“unadorned, the-defendant-unlawfully-harmed-me accusation” that “will not
do.” Iqbal, 556 U.S. at 678. Accordingly, the Court will deny Plaintiff leave to
amend his discrimination and hostile work environment claims as futile, and
dismiss those claims (with the exception of the above-mentioned NYCHRL
claim) with prejudice.
However, the Court will give Plaintiff the opportunity to amend his
federal, state, and city retaliation claims. First, the sufficiency of his retaliation
claims was not addressed in Defendants’ pre-motion letter,13 nor did the Court
give them specific attention at the May 28, 2014 conference. Plaintiff therefore
was not on prior notice of the insufficiency of those claims. Moreover, the
Court’s dismissal of Plaintiff’s retaliation claims at this juncture hinges on his
failure to allege specific dates and time periods, a defect that is easily remedied.
See Winston, 2014 WL 2957488, at *2 (permitting plaintiff to amend her
complaint with specific time frame despite multiple prior amendments). At the
same time, as Defendants argue, neither Title VII nor the ADEA “subjects
individuals, even those with supervisory liability over the plaintiff, to personal
liability.” Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011) (summary order).
Therefore, Plaintiff’s retaliation claims arising under Title VII and the ADEA are
dismissed with prejudice as to individual Defendants Lowe, Kinsey, Shea, and
Donovan, and without prejudice as to Verizon. Plaintiff’s retaliation claims
arising under the NYSHRL and the NYCHRL are dismissed without prejudice as
to all Defendants.
Defendants did argue in their letter that Plaintiff’s federal retaliation claims under Title
VII must be dismissed because Plaintiff failed to exhaust administrative remedies by not
asserting such a claim in his charge filed with the EEOC. (Dkt. #13 at 2). However,
Defendants abandon this argument in their motion to dismiss, presumably because,
upon review of the full EEOC charge, it is clear that Plaintiff did assert a retaliation
claim. (See Wexler Decl. Ex. D at 15).
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in
its entirety. Specifically, Plaintiff’s federal, state, and city law claims of
employment discrimination and hostile work environment are DISMISSED
WITH PREJUDICE, with the exception of his claim of hostile work environment
because of gender under the NYCHRL. Plaintiff’s federal claims of unlawful
retaliation against individual Defendants are DISMISSED WITH PREJUDICE.
Plaintiff’s federal claims of unlawful retaliation as to Defendant Verizon, and
his state and city claims of unlawful retaliation as to all Defendants are
DISMISSED WITHOUT PREJUDICE to amendment. If he wishes to do so,
Plaintiff may file a third amended complaint in accordance with this Order on
or before February 20, 2015. The Court cautions Plaintiff not to attempt to replead his claims that have been dismissed with prejudice, and to focus on repleading his retaliation claims. If Plaintiff does not file an amended complaint
by February 20, 2015, the Court will issue an order transferring the NYCHRL
hostile work environment claim to New York State Supreme Court within seven
days of that deadline. If Plaintiff files an amended complaint in accordance
with this Opinion, the Court will promptly set a conference to discuss discovery
or further motion practice.
January 20, 2015
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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