Brown v. City of New York et al
Filing
38
OPINION & ORDER re: 35 FIRST MOTION for Reconsideration re: 33 Clerk's Judgment, and Motion to Amend. filed by Sheila Brown. The Court therefore denies Brown's motion for reconsideration and for leave to file a SAC. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 35, and to close this case. (Signed by Judge Paul A. Engelmayer on 11/11/2014) (djc) Modified on 11/12/2014 (djc).
2005); see also Goonan v. Fed. Reserve Bank of N.Y., No. 12 Civ. 3859 (JPO), 2013 WL
1386933, at *2 (S.D.N.Y. Apr. 5, 2013) (“Simply put, courts do not tolerate such efforts to
obtain a second bite at the apple.”). Rather, reconsideration is appropriate “only when the
[moving party] identifies an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel
Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (citation
omitted). Here, Brown does not identify a change in controlling law, nor does she allege that
new evidence has become available. Instead, she argues that the Court must reconsider its
previous decision and grant leave to amend to prevent manifest injustice. See Pl. Br. 4–8.
To establish a prima facie case of unlawful retaliation, a plaintiff must show: “(1) that she
participated in an activity protected by Title VII, (2) that her participation was known to her
employer, (3) that her employer thereafter subjected her to a materially adverse employment
action, and (4) that there was a causal connection between the protected activity and the adverse
employment action.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010). If the
plaintiff can establish a prima facie case, “the burden shifts to the defendant employer to provide
a legitimate, non-discriminatory reason for the action.” Raspardo v. Carlone, No. 12 Civ. 1686,
2014 WL 4958157, at *24 (2d Cir. Oct. 6, 2014). “If the employer is able to satisfy that burden,
the inquiry then returns to the plaintiff, to demonstrate that the proffered reason is a pretext for
discrimination.” United States v. City of New York, 717 F.3d 72, 102 (2d Cir. 2013).1
1
The same standards apply to claims asserted under Title VII and the New York State Human
Rights Law. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir.
2011). For the reasons stated in the Court’s October 23 Opinion, the Court declines to exercise
supplemental jurisdiction over Brown’s New York City Human Rights Law claim, which must
be analyzed “separately and independently.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
715 F.3d 102, 109 (2d Cir. 2013).
2
As discussed in the Court’s October 23 Opinion, Brown engaged in protected activity
when she filed a previous lawsuit in this Court on April 29, 2011; when she filed an EEOC
charge on March 25, 2014; and when she made her first pro se filing to initiate this lawsuit on
April 25, 2014. See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 171 (2d Cir. 2005). The
proposed SAC adds that the EEOC issued Brown a Notice of Dismissal and Right to Sue on
April 1, 2014. SAC ¶ 14. And defendants have not disputed that they were aware of Brown’s
protected activities. See Dkt. 19–22, 28. Brown has therefore sufficiently alleged the first two
elements of the prima facie case of retaliation.
The proposed SAC identifies five potential adverse employment actions. For each,
Brown bases her claim of a causal connection between her protected activity and the alleged
adverse action—the fourth element of the prima facie case—on the ostensible temporal
proximity of these events. “Close temporal proximity between the plaintiff’s protected action
and the employer’s adverse employment action may in itself be sufficient to establish the
requisite causal connection between a protected activity and retaliatory action.” Kaytor, 609
F.3d at 552. However, a plaintiff who relies solely on temporal proximity must plead that the
events were “very close” in time. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(citation omitted); see also, e.g., Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224
(2d Cir. 2001) (“The causal connection needed for proof of a retaliation claim can be established
indirectly by showing that the protected activity was closely followed in time by the adverse
action.”). “[D]istrict courts within the Second Circuit have consistently held that the passage of
two to three months between the protected activity and the adverse employment action does not
allow for an inference of causation.” Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d
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257, 275 (S.D.N.Y. 2007); see also Brown v. City of New York, No. 11 Civ. 2915 (PAE), 2013
WL 3789091, at *17 (S.D.N.Y. July 19, 2013) (collecting cases).2
The Court considers each of Brown’s allegations in turn. First, Brown alleges that, at
some point in 2004, her supervisor declined to contact the Personnel Department about
increasing Brown’s pay. SAC ¶¶ 10–11, 21. This purportedly retaliatory action occurred several
years before Brown first engaged in protected activity. It therefore cannot give rise to an
inference of retaliation. See Wilcox v. Cornell Univ., 986 F. Supp. 2d 281 (S.D.N.Y. 2013)
(“Because this adverse action took place before Plaintiff engaged in any protected activity, she
cannot establish a causal link between her termination and her complaints.”).
Second, Brown alleges that her supervisor gave her an unsatisfactory performance
evaluation on April 2, 2012. SAC ¶ 15; see also Pl. Br. 2; Dkt. 17 (“FAC”), at 6. The new
allegations in the proposed SAC strengthen Brown’s contention that the negative performance
evaluation qualifies as a materially adverse action, potentially curing one defect in Brown’s First
Amended Complaint.3 See SAC ¶ 15. However, the SAC has not remedied the other defect in
2
The authority cited in Brown’s memorandum is not to the contrary. See Pl. Br. 7–8. Each case
involved allegedly retaliatory actions taken within one month of the plaintiff’s protected activity.
See Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 435, 446–47 (2d Cir. 1999)
(adverse actions occurred in the same month as protected activity); Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 769 (2d Cir. 1998) (adverse actions occurred 10 days after protected
activity); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980) (plaintiffs alleged
hundreds of retaliatory actions throughout the year and a half following the protected activities).
Moreover, each of these cases predated the Supreme Court’s decision in Clark County School
District v. Breeden, which approvingly cited cases that found three- and four-month gaps
insufficient to give rise to an inference of retaliation. See 532 U.S. at 273. This calls into
question any dicta suggesting that a lengthier gap could still support such an inference.
3
Whether the proposed SAC in fact adequately alleges that the performance evaluation was a
materially adverse action is far from clear. It alleges that the unsatisfactory evaluation precluded
Brown from receiving a promotion or transfer. SAC ¶ 15. This allegation is, however,
seemingly contradicted by the allegation, which is made three paragraphs later, that Brown was
thereafter considered for a promotion. SAC ¶ 18.
4
Brown’s First Amended Complaint—the lack of a causal connection. To establish temporal
proximity between the alleged adverse action and Brown’s protected activity, Brown’s counsel
inexplicably states that April 2, 2012, the date of the unfavorable evaluation, came after April 1,
2014, the date the EEOC issued Brown a Notice of Dismissal and Right to Sue. See Pl. Br. 2. In
fact, that assertion is the lynchpin of Brown’s motion for reconsideration. See Pl. Br. 7–8. But
that that statement is demonstrably false. Because the April 2, 2012 performance evaluation
came almost a year after Brown filed her first lawsuit in this Court on April 29, 2011, and almost
two years before Brown filed her next EEOC charge on March 25, 2014, this chronology does
not give rise to an inference of retaliation. See Murray, 528 F. Supp. 2d at 275.
Third, Brown alleges that on June 25, 2014, she received notice that she was required to
appear at the Office of Administrative Trials and Hearings (“OATH”) for disciplinary action.
SAC ¶ 16. As the Court noted in its October 23 Opinion, this event does not qualify as a
materially adverse action. An adverse employment action is a “materially adverse change in the
terms and conditions of employment.” Sanders v. N.Y. City Hum. Res. Admin., 361 F.3d 749,
755 (2d Cir. 2004) (citation and internal quotation marks omitted). “Examples of such a change
include termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, [and] significantly diminished material
responsibilities.” Id. (citation and internal quotation marks omitted). The OATH summons did
not, in itself, “trigger negative consequences to the conditions of employment,” Taylor v. N.Y.
City Dep’t of Educ., No. 11 Civ. 3582 (JG), 2012 WL 5989874, at *7 (E.D.N.Y. Nov. 30, 2012)
(citation omitted), and therefore does not qualify as a materially adverse employment action.
Moreover, more than two months passed between the time Brown filed a lawsuit on April 15,
2014 and the time she received the OATH summons on June 25, 2014. Even if the OATH
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summons qualified as a materially adverse action, the inference of a causal connection based
solely on this temporal proximity would be tenuous at best.
Fourth, Brown alleges that she interviewed for a promotion on July 3, 2014 but was not
awarded the position. SAC ¶ 18. Brown does not specify when she learned the results of her
interview. Even assuming an extremely prompt turnaround time, Brown was denied the
promotion almost three months after she filed a lawsuit on April 15, 2014. These events cannot
be characterized as “very close” in time. Clark Cnty. Sch. Dist., 532 U.S. at 273. Brown also
alleges that less qualified candidates were promoted. SAC ¶ 18. But that claim is pled in wholly
conclusory fashion. And any inference that the denial of the promotion was due to retaliation is
defeated by Brown’s concessions that the position she interviewed for was a poor fit, Dkt. 25, at
2 (“The distance from my home is 3 hours one way by public transportation.”), and that she was
permitted to put her name back on the list for the next promotional opportunity, SAC ¶ 18.
Fifth and finally, Brown alleges that, at the OATH hearing on September 9, 2014, she
was suspended for 10 days without pay. SAC ¶ 20. This action, although clearly materially
adverse, occurred nearly five months after Brown initiated this case. Absent any other
allegations that support an inference of retaliation, the temporal proximity between the protected
activity and the adverse action is too attenuated to establish a causal link. See, e.g., Dixon v. Int’l
Fed’n of Accountants, 416 F. App’x 107, 110 (2d Cir. 2011) (summary order) (adverse action
four months after protected activity is insufficient to establish causal connection); Williams v.
City of New York, No. 11 Civ. 9679 (CM), 2012 WL 3245448, at *11 (S.D.N.Y. Aug. 8, 2012)
(“The passage of even two or three months is sufficient to negate any inference of causation
when no other basis to infer retaliation is alleged.”). This conclusion is reinforced by the
apparent non-discriminatory reason for the adverse action, to wit, that Brown had refused to
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