Febrianti v. Starwood WorldWide

Filing 45

OPINION AND ORDER re: 33 MOTION to Dismiss the Second Amended Complaint. MOTION to Dismiss for Lack of Jurisdiction the Second Amended Complaint filed by Tatyana Gritt, Vincent Jeophanion, Ernest Semexant, Starwood Wo rldWide: For the reasons stated above, Defendants' motion to dismiss is GRANTED, and the Complaint is dismissed in its entirety. The only remaining question is whether Plaintiff should be granted leave to amend her Complaint. Although lea ve to amend a complaint should be freely given "when justice so requires," Fed. R. Civ. P. 15(a)(2), and courts should generally grant pro se plaintiffs leave to amend "at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated," Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam) (internal quotation marks omitted), it is "within the sound discretion of the district court to grant or deny le ave to amend," McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Here, the Court declines to grant Plaintiff leave to amend. First, a district court may deny leave to amend when, as here, amendment would be futile because the problem with the claim "is substantive [and] better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Second, Plaintiff has already amended her complaint twice - once soon after filing (see Docket No. 3) and once when she was granted leave to amend to cure deficiencies raised in Defendant's first motion to dismiss, and was explicitly cautioned that she "w[ould] not be given any further opportunity to amend the complaint to address iss ues raised by the motion." (See Docket No. 23). (Notably, Plaintiff's amended complaint - nearly seventy pages of largely speculative ramblings - is even less illuminating than her initial two complaints. (Compare Docket Nos. 2, 3, and 28).) Moreover, Plaintiff has had numerous opportunities to allege facts in support of her claims - in the two revisions to her original Complaint here, not to mention in her complaints and rebuttal statements in the DHR proceedings - but the al legations have changed markedly little. (See Reply Mem. Law Further Supp. Mot. To Dismiss (Docket No. 44) 2-3, 18-20; Docket Nos. 2, 3, 28; SAC, Ex. 1, at 27-30; SAC, Ex. 3, at 1-2). Finally, although Plaintiff appears to ask for leave to amend ( see, e.g., Docket No. 41 at 6, 8, 10), she has not "given any indication that [s]he is in possession of facts that would cure the problems identified in this opinion." Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014). The Clerk of Court is directed to terminate Docket No. 33, to mail a copy of this Opinion and Order to Plaintiff, and to close the case. (Signed by Judge Jesse M. Furman on 2/8/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
ERICA FEBRIANTI,
:
:
Plaintiff,
:
:
-v:
:
STARWOOD WORLDWIDE, et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X

02/08/2016

15-CV-0635 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Erica Febrianti, proceeding pro se, brings a variety of discrimination and
retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,
against her former employer, Starwood WorldWide (“Starwood”), and some Starwood
employees, Tatyana Gritt, Vincent Jerphanion, and Ernest Semexant (the “Individual
Defendants” and, with Starwood, “Defendants”). Defendants now move to dismiss, pursuant to
Rule 12(b) of the Federal Rules of Civil Procedure. For the reasons stated below, Defendants’
motion is GRANTED.
BACKGROUND
The following facts are taken from the Second Amended Complaint (which appears to be
the first dozen pages filed as Docket No. 28), the many exhibits annexed thereto, and any factual
allegations in Plaintiff’s opposition papers that are consistent with the Complaint. See, e.g.,
Karmely v. Wertheimer, 737 F.3d 197, 199 (2d Cir. 2013); Reynolds v. City of Mt. Vernon, No.
14-CV-1481 (JMF), 2015 WL 1514894, at *1 (S.D.N.Y. Apr. 15, 2015) (noting that courts may
consider factual allegations in a pro se plaintiff’s opposition papers, so long as they are

consistent with the complaint). Plaintiff was employed by Starwood as a cleaner in the Union
Square W Hotel from June 12, 2005, until she tendered her resignation on June 30, 2014. (See
Second Am. Compl. (Docket No. 28) (“SAC”) 3, 16). 1 Plaintiff identifies as a Southeast Asian
non-Chinese speaker. (Id. at 17). In December 2008, she filed a complaint with the New York
Department of Human Rights (“DHR”), alleging that she had been subjected to discrimination
because of her race. (See id., Ex. 3, at 1-2). On May 19, 2010, the DHR found that there was no
probable cause to support Plaintiff’s claim of race-based discrimination because Starwood had
offered legitimate, non-discriminatory reasons for the actions about which Plaintiff had
complained. (See id. at 8-11). 2
Plaintiff alleges that in the following years she was subjected to numerous criticisms,
comments, and demotions. For example, she alleges that one colleague told her “we are
Dominican and we don’t like [you].” (SAC 4-5). She contends also that more junior employees
received preferential treatment in work assignments and that she was no longer able to enjoy
certain work benefits, such as the ability to claim overtime jobs. (See, e.g., id. at 3-4, 7-8, 10-

1

As noted, Plaintiff attaches many exhibits to her Complaint. For the sake of simplicity,
references to the SAC’s page numbers are to the page number generated by ECF.
2

As part of her filings in this case, Plaintiff asks the Court to reopen her 2008 DHR case
because she was not timely notified of DHR’s determination and was unable to appeal to the
Equal Employment Opportunity Commission (“EEOC”) or state court as a result. (See Docket
No. 7; Mem. Law Supp. Mot. To Dismiss (Docket No. 34) (“Defs.’ Mem.”) 5 n.5). In her
opposition papers, Plaintiff also argues that some of DHR’s factual findings were incorrect and
that some documents were falsified. (See Opp’n Mot. To Dismiss Sec. Am. Compl. (Docket No.
40) (“Pl.’s Opp’n”) 32-41). Putting aside the question of whether Plaintiff may challenge DHR’s
findings in this forum, her challenge is untimely given that she had notice of DHR’s ruling no
later than November 2010 and neither sought review of that ruling nor brought Title VII claims
before the EEOC or a federal court. (See First Am. Compl. (Docket No. 3) 12). Moreover, to
the extent that the Court could consider Plaintiff’s prior discrimination claims here, they fall well
outside of the statute of limitations for Title VII claims and Plaintiff has made no showing that
the statute of limitations should be equitably tolled. See, e.g., Fellows v. Earth Constr., Inc., 794
F. Supp. 531, 534-35 (E.D.N.Y. 1992).

2

11). She alleges that Defendants disclosed her personnel files to her colleagues, which led to
additional hostility. (See id. at 4, 11). Plaintiff further describes an “incident” that took place on
February 28, 2014, when she was accused of violating company policy by soliciting money from
her coworkers. (See id. at 8-9). She alleges that her coworkers made comments that she was a
“trouble maker” and accused her of stealing. (Id. at 8-9). On April 1, 2014, Plaintiff filed
another complaint with DHR, claiming that her employer and colleagues had been retaliating
against her for her 2008 DHR complaint. (See id. at 8; id., Ex. 1, at 27-30). (It also appears that
Plaintiff made internal complaints to Starwood in March 2014. (See SAC 26)). On September
22, 2014, DHR found that there was no evidence to support a claim of retaliation. (See id. at 8;
id., Ex. 2, at 45-46). The EEOC adopted DHR’s findings on October 27, 2014. (See SAC, Ex. 1,
at 26).
On June 19, 2015, some Starwood employees (including Defendant Jerphanion) escorted
Plaintiff from the building and told her that she was “under investigation.” (SAC 2). (Plaintiff
does not elaborate on the purported nature of the investigation in her papers). On June 30, 2015,
Plaintiff was asked to resign because she violated company policy by not cooperating with the
investigation. (Id. at 3). Plaintiff decided not to return to work, voluntarily resigning her
position. (Opp’n Mot. To Dismiss Sec. Am. Compl. (Docket No. 40) (“Pl.’s Opp’n”) 11; see
Mem. Law Supp. Mot. To Dismiss (Docket No. 34) (“Defs.’ Mem.”) 12). Plaintiff filed a
complaint in this Court bringing claims for employment discrimination under Title VII on
January 28, 2015, which she amended on February 2, 2015 and again on July 23, 2015. (See
Docket Nos. 2, 3, 28).

3

LEGAL STANDARDS
In evaluating a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all facts
set forth in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. See,
e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam).
Significantly, however, the Supreme Court has made clear that a court should not accept nonfactual matter or “conclusory statements” set forth in a complaint as true. Ashcroft v. Iqbal, 556
U.S. 662, 686 (2009). Instead, a court must follow a two-step approach in assessing the
sufficiency of a complaint in the face of a Rule 12(b)(6) motion. See id. at 680-81. First, the
court must distinguish between facts, on the one hand, and “mere conclusory statements” or legal
conclusions on the other hand; the latter are not entitled to the presumption of truth and must be
disregarded. Id. at 678-79. Second, the court must “consider the factual allegations in [the
complaint] to determine if they plausibly suggest an entitlement to relief.” Id. at 681.
A claim is facially plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2008)). A plaintiff must show
“more than a sheer possibility that a defendant acted unlawfully,” id., and cannot rely on mere
“labels and conclusions” to support a claim, Twombly, 550 U.S. at 555. If the plaintiff’s
pleadings “have not nudged [his or her] claims across the line from conceivable to plausible,
[the] complaint must be dismissed.” Id. at 570. Finally, because Plaintiff is proceeding pro se,
her pleadings “must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)). Nonetheless, a pro se litigant must still state a plausible claim for relief. See, e.g.,
Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Put another way, the Court’s “‘duty to

4

liberally construe a plaintiff’s complaint [is not] the equivalent of a duty to re-write it.’”
Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (alteration in original)
(quoting 2 Moore’s Federal Practice § 12.34[1][b], at 12-61).
DISCUSSION
Plaintiff brings claims only under Title VII. 3 More specifically, she alleges claims of
retaliation, hostile work environment (on the basis of race and sex), and constructive discharge
against Starwood and the Individual Defendants. As a threshold matter, to the extent that
Plaintiff brings these claims against the Individual Defendants, they must be dismissed because it
is well established that there is no individual liability under Title VII. See, e.g., Spiegel v.
Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (per curiam) (collecting cases). Additionally, to the
extent that Plaintiff premises her claims on conduct and events prior to June 5, 2013, her claims
are time barred because under Title VII, a plaintiff who presents discrimination claims to a state
agency must file a charge within 300 days of the allegedly unlawful practice to bring suit; in this
case, Plaintiff filed her DHR complaint on April 1, 2014. See 42 U.S.C. § 2000e-5(e)). 4 The
Court turns, then, to Plaintiffs’ claims against Starwood that post-date June 5, 2013.
3

In particular, Plaintiff does not bring claims under the New York State Human Rights
Law, N.Y. Exec. Law § 290, et seq., or the New York City Human Rights Law, N.Y. City
Admin. Code 8-101, et seq.. Had she done so, her claims would have been barred by DHR’s
determinations. See Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d Cir. 2013); Daniel
v. T&M Prot. Res. LLC, 87 F. Supp. 3d 621, 631 (S.D.N.Y. 2015). By contrast, and
notwithstanding Defendants’ arguments otherwise (see Defs.’ Mem. 14-16), DHR’s
determinations do not preclude Plaintiff’s federal claims because she did not seek review of the
determinations in state court. See, e.g., Univ. of Tenn. v. Elliott, 478 U.S. 788, 796 (1986)
(“Congress did not intend unreviewed state administrative proceedings to have preclusive effect
on Title VII claims.”); accord Joseph v. Athanasopoulos, 648 F.3d 58, 62 (2d Cir. 2011).
4

In some circumstances, otherwise time-barred discriminatory conduct may be considered
pursuant to the “continuing violation” exception, which applies to discriminatory acts that were
part of a continuing policy and practice of prohibited discrimination. See Lambert v. Genesee
Hosp., 10 F.3d 46, 53 (2d Cir. 1993), abrogated on other grounds by Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1 (2011); Chukwueze v. N.Y.C. Emps. Ret. Sys., 891 F.
5

A. Plaintiff’s Retaliation Claims
The most substantial allegations in Plaintiff’s Complaint sound in the realm of retaliation.
At the motion to dismiss stage for a Title VII retaliation claim, “the allegations in the complaint
need only give plausible support to the reduced prima facie requirements that arise under
McDonnell Douglas in the initial phase of a Title VII litigation.” Littlejohn v. City of N.Y., 795
F.3d 297, 318 (2d Cir. 2015). That means that “a plaintiff must present evidence that shows
(1) participation in a protected activity; (2) that the defendant knew of the protected activity;
(3) an adverse employment action; and (4) a causal connection between the protected activity
and the adverse employment action.” Id. at 315 (internal quotation marks omitted). Here,
Plaintiff’s allegations are plainly sufficient to satisfy the first two prongs of the prima facie test.
First, Plaintiff’s 2008 and 2014 DHR complaints obviously qualify as “protected activity,” and
her alleged internal complaints to Starwood’s human resources department arguably do as well.
(See SAC 26). And second, Defendants do not contest Plaintiff’s allegation that at least some of
her co-workers and supervisors were aware of her intention to file, and eventual filing of, the
DHR complaints. (See Defs.’ Mem. 20-26).
Thus, Plaintiff’s retaliation claims turn on whether the Complaint plausibly alleges that
any actions taken by Plaintiff’s supervisors or other colleagues constituted “materially adverse”
actions causally connected to her protected activities. Significantly, the anti-discrimination and
anti-retaliation provisions of Title VII “are not coterminous.” Burlington N. & Santa Fe Ry. Co.

Supp. 2d 443, 451 (S.D.N.Y. 2012). Plaintiff here has alleged discrete discriminatory acts, rather
than any discriminatory policy, and so her claims are not subject to the continuing violation
exception. See Lambert, 10 F.3d at 53 (“[M]ultiple incidents of discrimination, even similar
ones, that are not the result of a discriminatory policy or mechanism do not amount to a
continuing violation.”); Chukwueze, 897 F. Supp. 2d at 51. Accordingly, any claims based on
conduct or events occurring before June 5, 2013, are time barred.

6

v. White, 548 U.S. 53, 67 (2006). That is, although Title VII’s discrimination provision limits
actionable claims to employer activities that affect the terms and conditions of employment, the
statute’s “anti-retaliation provision applies broadly to ‘employer actions that would have been
materially adverse to a reasonable employee or job applicant.’” Hicks v. Baines, 593 F.3d 159,
165 (2d Cir. 2010) (quoting White, 548 U.S. at 57). A plaintiff, however, must prove “material”
adversity, which helps to ensure that Title VII does “not set forth a general civility code for the
American workplace.” Id. (internal quotation marks omitted). Materially adverse actions are
those that are “‘harmful to the point that they could well dissuade a reasonable worker from
making or supporting a charge of discrimination,’” id. (quoting White, 548 U.S. at 57), and may
include “unchecked retaliatory co-worker harassment, if sufficiently severe,” Rivera v. Rochester
Genesee Reg’l Transp. Auth., 743 F.3d 11, 26-27 (2d Cir. 2014) (internal quotation marks
omitted). “Material adversity is to be determined objectively, based on the reactions of a
reasonable employee.” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d
Cir. 2011). Further, “the alleged acts of retaliation need to be considered both separately and in
the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross as to be
actionable.” Hicks, 593 F.3d at 165 (internal quotation marks omitted).
Measured against those standards, most of Plaintiff’s allegations fall short. Plaintiff
alleges a series of scattered incidents of hostility or censure. For example, she alleges that in
October 2013 she was assigned to clean a less desirable floor despite her seniority (see SAC 1011); that in February 2014, co-workers made critical comments, such as calling her a “trouble
maker” (see id. at 8-9); that in the same month, she was charged with violating Starwood’s
solicitation policy (see id. at 27-28); that on April 4, 2014, her “personal information files” were
disclosed (see id. at 4, 11); that in June 2014, she was forced to provide supplies for her co-

7

workers, which was not a part of her job (see id. at 11); and that on June 22, 2014, one of her coworkers said “we are Dominican and we don’t like her,” referring to Plaintiff (see id. at 4-5).
Viewed in context, as they must be, see White, 548 U.S. at 69, this handful of isolated incidents
across the span of almost one year does not comprise actions that are “harmful to the point that
they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. at 57. Instead, they fall into the category of “the sorts of petty slights and
personality conflicts that are not actionable” under Title VII. Tepperwien, 663 F.3d at 571
(internal quotation marks omitted); see Nunez v. N.Y. State Dep’t of Corr. & Cmty. Supervision,
No. 14-CV-6647 (JMF), 2015 WL 4605684, at *14.
The most compelling of these claims — relating to the disclosure of her personal files
and her reassignment to a different floor — fail to give rise to an actionable claim of retaliation
for another reason: lack of a causal connection between any protected activity and the adverse
employment action. 5 “[P]roof of causation can be shown either: (1) 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 (2) directly, through evidence of retaliatory animus directed against the plaintiff by
the defendant.” Gordon v. NYC Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Here, Plaintiff
included allegations about the disclosure of her personal files in her 2014 DHR complaint,
5

Defendants contend that Plaintiff has no non-speculative basis to believe that her personal
files were ever disclosed. (See Defs.’ Mem. 24). There is some truth to that contention, although
Plaintiff repeatedly alleges that the files were disclosed, and pleads at least one specific incident
suggesting that some of her personal information — at least the fact that she filed DHR
complaints, which may well have been kept confidential in her files — was shared with her coworkers. (See SAC 11 (“The respondent has deliberately revealing [sic] my personal files
information to other coworkers. Lorna Goulborne was asking me ‘why you filled [sic] the
complaint’, ‘why you did [sic] that’, ‘I had been discriminated about racial [sic] but I did not
filled [sic] the complaint.’”). Accordingly, the Court accepts the allegations as true.

8

making it clear that the disclosure of the files was the reason for the complaint, not the other way
around. (See Certification Nicholas A. Duston, Esq. Supp. Defs.’ Mot. To Dismiss, Ex. F, at 2).
Plaintiff does not allege that the disclosure of the files followed any statement of her intention to
file the 2014 complaint; to the contrary, she contends that the disclosure was in retaliation for her
filing of the 2008 DHR complaint. (See, e.g., SAC 18). But, ignoring her conclusory assertions,
as the Court must, she includes no allegations that would plausibly support a finding of
retaliatory animus, and the nearly six-year gap between her filing of the 2008 complaint and the
alleged disclosures makes any circumstantial argument implausible. See, e.g., Robles v. Cox &
Co., 841 F. Supp. 2d 615, 629 (E.D.N.Y. 2012) (holding that a ten-year gap does not support an
inference of retaliation and citing cases where twenty-month and two-year gaps were held to be
insufficient). Similarly, Plaintiff’s 2013 floor reassignment could not be retaliation for the April
2014 complaint, and there is no evidence other than Plaintiff’s conclusory statements connecting
it to the 2008 complaint.
That leaves Plaintiff’s allegation that she was falsely accused and implicated in an
unspecified investigation — which ultimately led to her resignation. Facing a false accusation of
misconduct that could potentially lead to punishment or dismissal is certainly the kind of
retaliation that might dissuade an employee from engaging in protected activity under Title VII.
But Plaintiff’s claim on that score falls short on the issue of causation. Plaintiff offers no direct
evidence of retaliatory animus, as Plaintiff’s allegations of retaliation are wholly conclusory.
(See, e.g., Pl.’s Opp’n 1 (“[T]he defendants [were] looking for [an] excuse to fire me not because
of my lack [of] performance but because of my race and retaliation.”), 3 (“I have strongly
believed that my protected activity was the real issue of the investigation. I was targeted [and]
under surveillance because of my race and also because I [filed a] lawsuit in federal court,

9

EEOC, [and] DHR.”)). Nor does she point to any circumstantial evidence, such as disparate
treatment of fellow employees who engaged in similar conduct, that could support an inference
of causation. Thus, the only possible basis for a finding of causation would be the temporal
proximity between her protected activity and the investigation, as the latter began about two and
a half months after Plaintiff filed her 2014 DHR complaint and about four months after she
notified Starwood’s human resources department about her concerns.
Temporal proximity can certainly provide indirect evidence of causation. See, e.g.,
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“Though this Court has
not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond
which a temporal relationship is too attenuated to establish causation, we have previously held
that five months is not too long to find the causal relationship.”); Gorman-Bakos v. Cornell
Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554-55 (2d Cir. 2001) (noting differences
of opinion about whether a span of months suffices as indirect evidence of retaliation). In the
absence of any other evidence of retaliation, however, the Court concludes that temporal
proximity is not enough to “nudge[ Plaintiff’s] claims across the line from conceivable to
plausible”; Plaintiff’s uniformly vague allegations about the events surrounding the investigation
and her recommended resignation in no way suggest that the temporal proximity of the
investigation to her complaints is anything but coincidence. Twombly, 550 U.S. at 570; see, e.g.,
Brown v. City of N.Y., — F. App’x —, 2015 WL 7252726, at *1 (2d Cir. 2015) (summary order)
(affirming dismissal of a retaliation claim where “[t]he time lapses between Brown’s protected
activities and the alleged retaliatory acts — ranging from two months to several years — were
simply too attenuated to establish that the alleged adverse employment actions were the product
of a retaliatory motive absent other supporting factual allegations”); Kouakou v. Fideliscare N.Y.,

10

920 F. Supp. 2d 391, 401 (S.D.N.Y. 2012) (dismissing a retaliation claim where four months
elapsed between the complaint and the adverse action because “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”) (internal quotation marks omitted); Murray v. Visiting
Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007) (“[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.” (collecting cases)); see also Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d
Cir. 2001) (“Where timing is the only basis for a claim of retaliation, and gradual adverse job
actions began well before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.”). Accordingly, Plaintiff’s retaliation claims must be and are dismissed
B. Plaintiff’s Other Discrimination Claims
Plaintiff’s other potential claims — alleging sex discrimination, hostile work
environment, and constructive discharge — can be more easily and swiftly rejected. First,
Defendants are correct that any sex discrimination claim is barred by Plaintiff’s failure to exhaust
her administrative remedies. (See Defs.’ Mem. 16-19). A plaintiff bringing a Title VII suit in
federal court must first present the claims to the EEOC or the equivalent state agency. See
Littlejohn, 795 F.3d at 322. Claims that were not so presented may form the basis of a Title VII
suit only to the extent they are “reasonably related to the claim filed with the agency.” Id.
(internal quotation marks omitted). Here, as in Littlejohn, Plaintiff limited her DHR and EEOC
claims to race-based discrimination. (See, e.g., Defs.’ Mem. 17; SAC, Ex. 3, at 1-2; id., Ex. 1, at
27-30). In her opposition to Defendants’ original motion to dismiss, Plaintiff makes allegations
for the first time that she was sexually harassed by two male co-workers. (See SAC 33). She did

11

not reference these incidents in any of her prior filings with this Court or with the administrative
agencies, and there is no indication of any connection between the harassment and the
allegations she made in her DHR complaints about retaliation and race-based discrimination.
Any sex discrimination claim, therefore, fails for failure to exhaust. See Littlejohn, 795 F.3d at
322-23.
Second, Plaintiff’s hostile work environment claims fail as a matter of law. (See Defs.’
Mem. 28-30). To prevail on such a claim, a plaintiff must show that his or her “workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (internal quotation
marks and alteration omitted). That is, Title VII “forbids only behavior so objectively offensive
as to alter the ‘conditions’ of the victim’s employment.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998). Here, Plaintiff fails to plausibly allege behavior so “extraordinarily
severe . . . to have altered the conditions of her working environment.” Cruz v. Coach Stores,
Inc., 202 F.3d 560, 570 (2d Cir. 2000). Most of her allegations of mistreatment or unkind
comments from her coworkers bear no connection to Plaintiff’s race or national origin, despite
the fact that she references her co-workers’ race and national origin in describing their behavior.
(See, e.g., SAC 9-11). The few allegations that arguably do raise an inference of racial animus
by no means indicate a severe or pervasive pattern of discrimination, particularly given the time
period across which they are spread. (See, e.g., SAC 32 (alleging that a coworker told Plaintiff
“I know you don’t like white people” and, in 2008, “this is not your country”; id. at 34 (alleging
that, in 2011, a coworker asked her “are you sure you are not from Cambodia[?]”)). That is
plainly insufficient to state a hostile work environment claim under Title VII.

12

Finally, Plaintiff does not plead a viable claim for constructive discharge. (See SAC 2-3).
As the Second Circuit has explained, constructive discharge “occurs when an employer, rather
than directly discharging an individual, intentionally creates an intolerable work atmosphere that
forces an employee to quit involuntarily. Working conditions are intolerable if they are so
difficult or unpleasant that a reasonable person in the employee’s shoes would have felt
compelled to resign.” Serricchio v. Wachovia Sec. LLC, 658 F. 3d 169, 185 (2d Cir. 2011).
Plaintiff contends that she was constructively discharged because she was told that she was under
investigation and that the investigation was a sham that was “created” in order to force her to
leave her job. (See SAC 2). When she did not cooperate with the investigation, Plaintiff was
asked to resign. (See id. at 3). The Complaint could also plausibly be read to include the
allegations about co-workers’ taunts as contributing factors to the constructive discharge. As
discussed above, however, conclusory assertions aside, nothing in Plaintiff’s voluminous papers
suggests that the investigation was intentionally fabricated in order to force Plaintiff to quit. She
may have been dissatisfied with her job and on poor terms with her colleagues, but that is
insufficient to state a claim of constructive discharge; her conclusory allegations do not cross the
line into plausible. See Twombly, 550 U.S. at 570; Stetson v. NYNEX Serv. Co., 995 F.2d 355,
360-61 (2d Cir. 1993). Any constructive discharge claim is accordingly dismissed. 6

6

Defendants also argue that any retaliation claim brought pursuant to the Workers’
Compensation Law should be dismissed. (See Defs.’ Mem. 19-20). The Court does not read
Plaintiff’s Complaint to raise any such claim, but to the extent that it does, the claims would have
to be dismissed because the Workers’ Compensation Board is the exclusive forum in which to
bring such claims. See N.Y. Workers’ Comp. Law § 120; Benjamin v. Health & Hosp. Corp.,
No. 07-CV-2487 (KAM) (LB), 2009 WL 2959622, at *7 (E.D.N.Y. 2009) (dismissing a
workers’ compensation retaliation claim under the ADA for lack of jurisdiction).

13

CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss is GRANTED, and the
Complaint is dismissed in its entirety. The only remaining question is whether Plaintiff should
be granted leave to amend her Complaint. Although leave to amend a complaint should be freely
given “when justice so requires,” Fed. R. Civ. P. 15(a)(2), and courts should generally grant pro
se plaintiffs leave to amend “at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated,” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795
(2d Cir. 1999) (per curiam) (internal quotation marks omitted), it is “within the sound discretion
of the district court to grant or deny leave to amend,” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 200 (2d Cir. 2007). Here, the Court declines to grant Plaintiff leave to amend. First, a
district court may deny leave to amend when, as here, amendment would be futile because the
problem with the claim “is substantive [and] better pleading will not cure it.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Second, Plaintiff has already amended her
complaint twice — once soon after filing (see Docket No. 3) and once when she was granted
leave to amend to cure deficiencies raised in Defendant’s first motion to dismiss, and was
explicitly cautioned that she “w[ould] not be given any further opportunity to amend the
complaint to address issues raised by the motion.” (See Docket No. 23). (Notably, Plaintiff’s
amended complaint — nearly seventy pages of largely speculative ramblings — is even less
illuminating than her initial two complaints. (Compare Docket Nos. 2, 3, and 28).) Moreover,
Plaintiff has had numerous opportunities to allege facts in support of her claims — in the two
revisions to her original Complaint here, not to mention in her complaints and rebuttal statements
in the DHR proceedings — but the allegations have changed markedly little. (See Reply Mem.
Law Further Supp. Mot. To Dismiss (Docket No. 44) 2-3, 18-20; Docket Nos. 2, 3, 28; SAC, Ex.

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1, at 27-30; SAC, Ex. 3, at 1-2). Finally, although Plaintiff appears to ask for leave to amend
(see, e.g., Docket No. 41 at 6, 8, 10), she has not “given any indication that [s]he is in possession
of facts that would cure the problems identified in this opinion.” Clark v. Kitt, No. 12-CV-8061
(CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014).
The Clerk of Court is directed to terminate Docket No. 33, to mail a copy of this Opinion
and Order to Plaintiff, and to close the case.

SO ORDERED.
Date: February 8, 2016
New York, New York

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