Spence v. Housing Preservation & Development et al

Filing 36

OPINION AND ORDER re: 29 FIRST MOTION to Dismiss Third Amended Complaint filed by Kathleen Bukofzer, Housing Preservation & Development: For the foregoing reasons, the Court GRANTS Spence's request to re-open the case in light of the parties' failure to consummate the settlement agreement. Doc. 35. The Clerk of the Court is respectfully directed to re-open the matter. The Court GRANTS in part and DENIES in part Defendants' motion to dismiss as follows: The Court DE NIES Defendants' motion to dismiss the § 1981 claims against Bukofzer. The Court GRANTS Defendants' motion to dismiss the § 1981 claims against HPD without prejudice. The Court GRANTS Defendants' to dismiss the Title VII clai ms against Bukofzer with prejudice. The Court DENIES Defendants' motion to dismiss the Title VII claims against HPD. The Court GRANTS Defendants' motion to dismiss the intentional and negligent infliction of emotional distress claims agains t both Bukofzer and HPD with prejudice. Should Spence wish to amend to include a 1981 Monell claim, the Fourth Amended Complaint shall be filed by April 27, 2017. The Clerk of Court is respectfully directed to terminate the motion, Doc. 29. The parties are directed to appear for a conference on May 3, 2017 at 10:00 A.M. (Status Conference set for 5/3/2017 at 10:00 AM before Judge Edgardo Ramos.) (Amended Pleadings due by 4/27/2017.) (Signed by Judge Edgardo Ramos on 3/30/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CARDELL SPENCE,
Plaintiff,

OPINION AND ORDER
15 Civ. 6167 (ER)

– against –
KATHLEEN BUKOFZER, and CITY OF NEW YORK
DEPARTMENT OF HOUSING PRESERVATION &
DEVELOPMENT,
Defendants.

Ramos, D.J.:
Cardell Spence (“Plaintiff” or “Spence”) alleges thirteen claims, sounding primarily in
employment discrimination and retaliation, against Kathleen Bukofzer (“Bukofzer”) and the City
of New York Department of Housing Preservation and Development (“HPD”) (collectively, the
“Defendants”). Before the Court is Defendants’ partial motion to dismiss Plaintiff’s Third
Amended Complaint (“TAC”) pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated
below, Defendants’ motion is GRANTED in part and DENIED in part.
I.

FACTUAL BACKGROUND 1
Ms. Spence, a sixty-one year old black female, has worked for HPD since 1980. TAC

(Doc. 28) at ¶¶ 5, 16. When Spence began working for HPD as a clerk, she earned

1

The following factual background is based on allegations in the Third Amended Complaint, Doc. 28, which the
Court accepts as true for purposes of the instant motion. See Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d
Cir. 2012). The Court also considers documents incorporated by reference therein, and public filings filed with the
New York State Division of Human Rights submitted to the Court and annexed to the Declaration of Scott C.
Silverman (“Silverman Decl.”) (Doc. 30). See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)
(“the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference”); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)
(“courts routinely take judicial notice of documents filed in other courts, again not for the truth of the matters
asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”); Day v.
Distinctive Pers., Inc., 656 F. Supp. 2d 331, 332 n.2 (E.D.N.Y 2009) (“[i]n deciding motions to dismiss employment

approximately $38,000 a year. Id. at ¶ 17. In 1988, she was promoted to the position of
Provisional Housing Inspector, and earned approximately $53,000. Id. at ¶ 18. Spence explains
that although her title was Provisional Housing Inspector, she did the same work as Housing
Inspectors. Id. In 2011, a new law required that she take a test and reapply in order to continue
working under the title of Housing Inspector. Id. at ¶ 18. In March 2012, Spence took and
passed the test. Id. at ¶¶ 18, 21. She was not, however, given the title of Housing Inspector
immediately. See id. at ¶ 25.
In approximately June 2013, HPD began to interview the individuals who passed the
housing inspector test. Id. at ¶ 22. Spence was promoted to Housing Inspector in March 2014,
approximately two years after she passed the test, and she received an annual salary of
approximately $54,000 a year. Id. at ¶ 25. She was assigned to the Bronx office, where
Defendant Bukofzer was a Chief. Id. at ¶¶ 9, 25. As a new Housing Inspector, Spence was put
on a one year probationary period, and her performance was subject to assessment on a quarterly
basis. Id. at ¶ 26.
Spence alleges a number of examples of discriminatory behavior that she was subjected
to once she arrived at the Bronx Office. For example, on March 4, 2014, Bukofzer immediately
issued her a report for leaving her post without permission. Id. at ¶ 28. But Spence claims that
she was not informed to whom she should report and thought she had permission to leave her
post to carry out basic job functions. Id. Defendants also regularly assigned Spence to conduct
inspections by herself in unsafe “2-man areas” that were generally assigned to two or more
inspectors for safety reasons. Id. at ¶ 29. Additionally, Spence alleges that black employees

discrimination actions under Title VII, courts regularly take notice of EEOC and NYSDHR filings and
determinations relating to plaintiff’s claims.”).

2

were called “monkeys” and “slaves.” Id. at ¶¶ 31–33. 2 Spence also alleges that Bukofzer posted
signs around the office saying, “Not my monkey, not my circus” as a reference to the phrase
“Not my job, not my problem,” but she and her co-workers viewed the sign as racially
derogatory. Id. at ¶ 33. Spence also cites a specific instance when she was excluded from
attending a meeting and another when she was accused of lying in a meeting led by Bukofzer.
Id. at ¶¶ 38–39. It was at this second meeting in May 2014 that Spence was demoted to
performing radio dispatch duties with an annual salary of approximately $41,000 a year. Id. at ¶
40.
In June 2014, Spence complained to HPD’s internal Equal Employment Opportunity
(“E.E.O”) Department about what she perceived to be a “racially hostile work environment” and
the “continuing racial discrimination” she was subjected to. Id. at ¶¶ 41–42. She then followed
up with another internal complaint on September 12, 2014. Id. at ¶ 44. This department was
also responsible for conducting the quarterly evaluations that were required during Spence’s
probationary period as a Housing Inspector, but she notes it did not conduct them. Id. at ¶ 43.
Spence was evaluated once during her probationary year, in September 2014—at
approximately the same time she filed her second complaint of discrimination to the E.E.O.
Department. Id. at ¶ 45. She was evaluated by supervisors named Wilson and Frias, and they
rated her as “satisfactory” for her work during the probation period. Id. However, Bukofzer
“decided to re-evaluate Ms. Spence herself,” and issued Spence the lowest possible rating of
“unsatisfactory.” Id. Defendants did not provide Spence with a copy of the evaluation for
discussion or acknowledgement. Id. at ¶ 46. On October 17, 2014, Spence was called to a
meeting where she was stripped of her Housing Inspector title and demoted to payroll clerk, with

2

Spence does not allege whether these terms were directed to her specifically.

3

an annual salary of approximately $41,000. Id. at ¶¶ 48–50. She remains in that position today.
Id.
On December 30, 2014, Spence filed a discrimination complaint against Defendants with
the New York State Division of Human Rights (“SDHR”) and the Equal Employment
Opportunity Commission (“EEOC”), charging unlawful discrimination on the basis of race and
sex. Doc. 30, Ex. A (SDHR Verified Complaint in Spence v. City of New York Housing
Preservation and Development, SDHR Complaint No. 10172622; Federal Charge No.
16GB500907). On June 16, 2015, the SDHR dismissed the complaint as time-barred because
her allegations occurred more than one year prior to filing, and because their investigation
“failed to uncover sufficient evidence to establish a causal nexus between [Defendants’]
treatment of [Spence] and her race/color and sex.” See Doc. 30, Ex. B (SDHR Determination
and Order After Investigation in Spence v. City of New York Housing Preservation and
Development, SDHR Complaint No. 10172622; Federal Charge No. 16GB500907) (“SDHR
Order”). On July 23, 2015, the EEOC provided Spence with a Right to Sue letter. TAC at ¶¶
15, 50.
II.

PROCEDURAL BACKGROUND
Plaintiff commenced the instant action on August 5, 2015 by filing a complaint pro se

against Bukofzer and HPD, and the matter was referred to the Court’s Mediation Program.
Docs. 1, 6. Spence then amended her complaint twice, on October 20, 2015 and January 21,
2016 respectively. Docs. 8, 20. A mediation session was held on February 29, 2016, and the
mediator reported that settlement was reached on all issues. Doc. 25. On March 1, 2016, the

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Court then ordered that “the … action be … discontinued, without costs to either party, subject
to reopening should the settlement not be consummated within thirty (30) days.” Doc. 26.
Approximately five weeks later, on April 11, 2016, Spence retained counsel. Doc. 27.
On April 14, 2016, Spence filed her TAC. Doc. 28. On April 28, 2016, Defendants filed their
motion to dismiss the TAC, and briefing was completed on May 9, 2016. See Docs. 29, 33.
Plaintiff wrote to the Court on January 24, 2017 notifying the Court that the parties did
not reach settlement and were under the impression that the case thus remained active, as
evidenced by the filing of the TAC and subsequent motion practice. Doc. 34. The Court
directed Defendants to respond by February 1, 2017, see Doc. 35, but Defendants did not do so.
In light of Defendants’ failure to respond, the Court GRANTS Plaintiff’s request to re-open the
case in light of the parties’ failure to reach a settlement agreement, and now considers the
pending motion to dismiss.
The TAC asserts thirteen causes of action in twelve counts:
•

Section 1981 discrimination and retaliation (Count I);

•

Title VII discrimination (Count II) and retaliation (Count III);

•

New York State Human Rights Law (“NYSHRL”) discrimination under New
York State Executive Law § 296 (Count IV), retaliation under New York State
Executive Law § 296(7) (Count V), and aiding and abetting discrimination under
New York State Executive Law § 296(6) (Count VI);

•

The New York City Human Rights Law (“NYCHRL”) discrimination under the
New York Administrative Code § 8-107 (Count VII), retaliation under the New
York Administrative Code § 8-107(l)(e) (Count VIII), aiding and abetting
discrimination under the New York Administrative Code § 8-107(19) (Count IX),

5

and vicarious discrimination under the New York Administrative Code § 8107(13) (Count X);
•

Intentional infliction of emotional distress (Count XI); and

•

Negligent infliction of emotional distress (Count XII).

Spence now withdraws seven of her thirteen claims—specifically, all the claims asserted
under NYSHRL and NYCHRL. Plaintiff’s Opposition to Defendants’ Motion to Partially
Dismiss the Third Amended Complaint (“Pl.’s Opp.”) (Doc. 32) at 3 (“[P]laintiff consents to the
withdrawal of Counts using the SHRL and CHRL, however asserts that the allegations as to facts
go to other counts of the complaint.”). Therefore, the claims that remain are alleged under §
1981, Title VII, and state tort law for negligent and intentional infliction of emotional distress.
While the TAC labels each cause of action using the titles “discrimination” and
“retaliation,” the TAC also makes reference to Spence’s belief that she was subjected to a hostile
work environment. TAC at ¶ 1; see also id. at ¶ 53 (“The aforementioned pervasive
discrimination and adverse work consequences created by defendants was clearly an unlawful
hostile work environment…”). The Court therefore construes the TAC to also be asserting
hostile work environment discrimination claims. See, e.g., Kassner v. 2nd Ave. Delicatessen
Inc., 496 F.3d 229, 240 (2d Cir. 2007) (“Although the complaint does not explicitly allege
discrimination based on a hostile work environment, the complaint alleges ‘continued
harassment’ of Kassner and alleges facts from which we may infer pleading of hostile work
environment claims…”); Meyer v. N.Y. Office of Mental Health, No. 12 Civ. 6202 (PKC), 2014
WL 1767818, at *6 (E.D.N.Y. May 2, 2014) (construing a hostile work environment claim where
no “specific count” alleges hostile work environment, but the allegations sound in that relief).
Defendants move to partially dismiss the TAC on grounds that: (1) Spence’s claims are
partially time-barred; (2) the retaliation claim under Title VII is barred by her failure to exhaust
6

administrative remedies; (3) she fails to plead a plausible claim for discrimination; (3) she fails to
plead a plausible claim for hostile work environment; (4) she fails to plead facts that plausibly
establish a claim for municipal liability under § 1981; and (5) her state tort claims must be
dismissed for failure to comply with notice of claim requirements. See Reply Memorandum of
Law of in Further Support of Defendants’ Motion to Partially Dismiss the Third Amended
Complaint (“Defs.’ Repl.”) (Doc. 33) at 1. Defendants do not challenge Spence’s claims for
discrimination against HPD pursuant to Title VII, or against Bukofzer pursuant to § 1981, but
concede that they are all sufficient only with respect to the circumstances related to her
demotion. See id. at 20.
III.

LEGAL STANDARDS
When ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must

accept all factual allegations in the complaint as true and draw all reasonable inferences in the
plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court is not required to
credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of
action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly,
550 U.S. at 570). 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. (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege
sufficient facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Id.

7

If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 680.
IV.

DISCUSSION
A. Statute of Limitations
1. Title VII
Defendants argue that to the extent Spence alleges discrete discriminatory or retaliatory

acts occurring prior to March 5, 2014, (i.e. more than 300 days prior to the filing of her
SDHR/EEOC complaint on December 30, 2014), her Title VII claims are barred by the
applicable 300-day statute of limitations. Defs.’ Mem. at 8. Claimants under Title VII must file
a complaint with the EEOC “within 180 days after the alleged discriminatory act occurred,” or
“if [s]he has already filed the charge with a state or local agency that monitors fair employment
practices, [she] must file [her] EEOC charge within 300 days of the alleged discriminatory act.”
Falso v. Gates Chili Cent. Sch. Dist., 408 F. App’x 494, 495 (2d Cir. 2011) (summary order); see
also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109–10 (2002); EEOC v. Bloomberg
L.P., 967 F. Supp. 2d 816, 831 (S.D.N.Y. 2013) (citing 42 U.S.C. § 2000e–5(e)(1)). The filing
deadlines for a charge of discrimination effectively act as a “statute of limitations” and a failure
to timely file a charge acts as a bar to a plaintiff’s action. Hill v. Citibank Corp., 312 F. Supp. 2d
464, 472 (S.D.N.Y. 2004); see also Francis v. City of N.Y., 235 F.3d 763, 767 (2d Cir. 2000)
(quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)).
In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the
Supreme Court held that 42 U.S.C. § 2000e–5(e)(1) “precludes recovery for discrete acts of
discrimination or retaliation that occur outside the statutory time period.” Id. at 105. “[D]iscrete
acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to

8

identify. Each incident of discrimination ... constitutes a separate actionable ‘unlawful
employment practice.’” Id. at 114. Even if they are related to the acts alleged in timely filed
charges, discrete discriminatory acts are not actionable if time-barred. Id. at 113.
While discrete claims of discrimination and retaliation must be brought within the 300day limitations period to be actionable, a different rule applies with regard to hostile work
environment claims. The Supreme Court has explained that hostile work environment claims are
different because they “cannot be said to occur on any particular day.” Id. at 115. Rather, such
claims “occur[ ] over a series of days or perhaps years and, in direct contrast to discrete acts, a
single act of harassment may not be actionable on its own.” Id. Because hostile work
environment claims by their very nature involve repeated conduct over a long period of time, the
Supreme Court explained that, as long as any act contributing to the hostile work environment
claim falls within the 300-day period, “the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability.” Id. at 117. Thus, the Court
analyzes whether the intentional discrimination/retaliation claims and hostile work environment
claims are time-barred separately.
Here, Spence filed her complaint jointly with the SDHR/EEOC on December 30, 2014.
See SDHR Order at 1. Defendants argue that any discrete discriminatory or retaliatory acts
occurring prior to March 5, 2014 would thus be time-barred for purposes of Title VII. Defs.’
Mem. at 2–3. However, Defendants reference only one discrete act in the TAC that would be

9

barred by the statute of limitations—the report Bukofzer issued Spence on March 4, 2014 for
leaving her post without permission. See Defs.’ Mem. at 5–6. 3
The Court finds the March 4, 2014 report issued to Spence is a separate and discrete
occurrence of discrimination, and that it took place before March 5, 2014. Accordingly, it is
time-barred for purposes of her Title VII discrimination and retaliation claims. However, to the
extent Spence’s hostile work environment claim is predicated on any act on or after March 5,
2014, “the entire time period of the hostile environment may be considered by a court for the
purposes of determining liability.” Nat’l R.R. Passenger Corp., 536 U.S. at 117.
2. Section 1981
Spence’s § 1981 claims are governed by a four year statute of limitations. See Jones v.
R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004) (holding that if a plaintiff’s claim was
“made possible by” post-1990 amendments to § 1981, the claim should be subject to the federal
four-year statute of limitations). Accordingly, Defendants argue that any of Spence’s § 1981
claims that occurred prior to August 5, 2011 are time-barred. However, Spence alleges no acts
of discrimination in the TAC prior to this date. In fact, the TAC alleges that the discrimination
and hostile work environment began in approximately June 2013. See TAC at ¶ 13. Therefore,
the Court does not dismiss any claims on this basis.
B. Failure to State a Claim for Discrimination Under § 1981 and Title VII
1. Analytical Framework for Discrimination and Retaliation Claims
Spence’s Title VII and §1981 claims for disparate treatment and retaliation are properly
analyzed under the three-step burden-shifting framework set forth by the Supreme Court in

3

Indeed, Defendants acknowledge that the majority of alleged discriminatory or retaliatory acts in the TAC occurred
after March 5, 2014. See, e.g., TAC at ¶¶ 31–32, 40, 45, 49–50.

10

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Littlejohn v. City of N.Y., 795
F.3d 297, 312 (2d Cir. 2015) (applying McDonnell framework to Title VII and §1981 claims);
Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (applying McDonnell
framework to retaliation claim). Under the McDonnell framework, a plaintiff alleging
discrimination under Title VII must first demonstrate a prima facie case of discrimination.
McDonnell Douglas Corp., 411 U.S. at 802. The Second Circuit has explained that a plaintiff’s
burden at this stage is “de minimus.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467
(2d Cir. 2001); see also Littlejohn, 795 F.3d at 312 (noting that “reduced prima facie
requirements [ ] arise under McDonnell Douglas in the initial phase of a litigation”).
If a plaintiff successfully presents a case of discrimination, the defendant must then rebut
the presumption by offering legitimate and non-discriminatory reasons for the adverse
employment action demonstrated in plaintiff’s prima facie case. Abdu-Brisson, 239 F.3d at 468
(citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). To satisfy the second
step of the McDonnell analysis, “[i]t is sufficient if the defendant’s evidence raises a genuine
issue of fact as to whether it discriminated against the plaintiff.” Burdine, 450 U.S. at 254. “If
the defendant carries this burden of production, the presumption [of discrimination] raised by the
prima facie case is rebutted,” and “drops from the case.” Id. at 255 n.10. Under the third step of
the McDonnell Douglas framework, the burden then shifts back to the plaintiff to prove
intentional discrimination by a preponderance of the evidence. Fields v. N.Y. State Office of
Mental Retardation & Developmental Disabilities, 115 F.3d 116, 121 (2d Cir. 1997).
To survive a motion to dismiss under Title VII, “what must be plausibly supported by
facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified,
suffered an adverse employment action, and has at least minimal support for the proposition that

11

the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311; see also
DeVore v. Neighborhood Hous. Servs. of Jamaica Inc., No. 15 Civ. 6218 (PKC), 2017 WL
1034787, at *4 (E.D.N.Y. Mar. 16, 2017) (“At the pleading stage, a plaintiff does not need to
prove discrimination, or even allege facts establishing every element of the McDonnell Douglas
prima facie case, but the facts alleged must give plausible support to the reduced requirements of
the prima facie case.”) (citing Littlejohn, 795 F.3d at 311) (internal quotation marks omitted).
Courts making the plausibility determination should do so “mindful of the elusive nature of
intentional discrimination” and the frequency by which plaintiffs must “rely on bits and pieces of
information to support an inference of discrimination, i.e., a mosaic of intentional
discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)
(internal citations and quotation marks omitted).
2. Analytical Framework for Hostile Work Environment Claims
Section 1981 and Title VII have been interpreted to provide a cause of action for
employment discrimination based on a hostile work environment. See, e.g., Whidbee v.
Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000) (§ 1981); Patterson v. Cty. of
Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004) (Title VII). However, hostile work environment
claims are not analyzed using the McDonnell Douglas three-part burden-shifting test described
above. See Grant v. United Cerebral Palsy of N.Y. City, Inc., No. 11 Civ. 00018 (LGS), 2014
WL 902638, at *8 (S.D.N.Y. Mar. 7, 2014). Instead, to establish a claim for hostile work
environment, a plaintiff must show that the harassment was “sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working environment.”
Terry v. Ashcroft, 336 F.3d 128, 147–148 (2d Cir. 2003) (quoting Alfano v. Costello, 294 F.3d

12

365, 373 (2d Cir. 2002)); see also Whidbee, 223 F.3d at 69 (noting hostile work environment
claims are analyzed under the same standards for both § 1981 and Title VII claims).
* * *
Defendants argue Spence fails to state a plausible claim for two reasons: (1) many of the
allegations do not constitute “adverse employment actions” for purposes of the discrimination
claim; and (2) she failed to plead facts sufficiently severe or pervasive to give rise to a hostile
work environment claim.
3. Discrimination: Adverse Employment Actions
To establish a prima facie case for employment discrimination, plaintiff must establish
that: (1) she is a member of a protected class; (2) was qualified for the position held; (3) suffered
an adverse employment action; and (4) “has at least minimal support for the proposition that the
employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311. An adverse
employment action is a “materially adverse change in the terms and conditions of employment.”
Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks
omitted). To be materially adverse, a change in working conditions must be “more disruptive
than a mere inconvenience or an alteration of job responsibilities.” Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (citing Galabya, 202 F.3d at 639).
Materially adverse change may be indicated by “a termination of employment; a demotion with a
decrease in wage or salary or a less distinguished title; a material loss of benefits; significantly
diminished material responsibilities; or other indices unique to a particular situation.” Borrero v.
Am. Exp. Bank Ltd., 533 F. Supp. 2d 429, 436 (S.D.N.Y. 2008).
Here, the TAC contains factual allegations, that when construed together, state a claim
for discrimination. Spence alleges that she was subject to the following actions:

13

•

A superior issued her a disciplinary report on March 4, 2014, TAC at ¶ 28; 4

•

She was assigned to less desirable or unsafe posts, id. at ¶¶ 28–29;

•

She was excluded from one meeting and accused of lying during another meeting, id. at
¶¶ 23–39;

•

She received an unfavorable evaluation from Bukofzer, id. at ¶ 45; and

•

She was demoted in May 2014 and October 17, 2014 and her salary was decreased, id. at
¶¶ 40, 49.
Defendants do not dispute that the demotions Spence received in May 2014 and on

October 17, 2014 may be deemed adverse for purposes of this motion, but argue the remainder of
the allegations do not rise to the level of adverse employment actions sufficient to state a claim.
See Defs.’ Mem. at 12.
Being assigned less desirable posts or being excluded from meetings do not alone
constitute adverse employment actions. See James v. Mun. Credit Union, No. 13 Civ. 4568
(LTS), 2016 WL 698136, at *4 (S.D.N.Y. Feb. 19, 2016) (dismissing discrimination claim where
employee felt excluded from certain company events and employer made negative remarks about
her). However, reprimands and negative performance evaluations or ratings “may, in some
circumstances, constitute adverse employment action for purposes of a discrimination claim.”
Lawrence v. Mehlman, 389 F. App’x 54, 56 (2d Cir. 2010) (listing cases and noting that whether
the action is adverse “is typically a question of fact for the jury”). Where a plaintiff’s negative
reviews lead to “tangible harm or consequences,” they may constitute adverse actions. Valentine
v. Standard & Poor’s, 50 F. Supp. 2d 262, 284 (S.D.N.Y. 1999), aff’d, 205 F.3d 1327 (2d Cir.
2000). Here, Spence alleges that in May 2014 she was demoted to performing radio dispatch

4

For the reasons discussed above, this report cannot be considered for purposes of the Title VII discrimination claim
under the applicable statute of limitations.

14

duties with a salary decrease. TAC at ¶ 40. She further alleges that approximately one month
after receiving an unfavorable review from Bukofzer—despite her original favorable review
from other supervisors—she was stripped of her Housing Inspector title and was demoted to the
position of payroll clerk. Id. at ¶¶ 48–50. These allegations of negative performance reviews
that thereafter led to a diminution of responsibilities, demotion, and salary reduction are
sufficient to plausibly allege a claim for discrimination.
4. Hostile Work Environment Claims
To adequately plead a hostile work environment claim, a plaintiff must allege conduct
that “(1) ‘is objectively severe or pervasive—that is, ... creates an environment that a reasonable
person would find hostile or abusive’; (2) creates an environment ‘that the plaintiff subjectively
perceives as hostile or abusive;’ and (3) ‘creates such an environment because’” the plaintiff is a
member of a protected class. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting
Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001)). A workplace can be regarded as hostile
if it 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.” Harris, 510 U.S. at 21.
An environment’s hostility should be assessed based on the “totality of the
circumstances.” Id. at 23. Factors that a court might consider in assessing the totality of the
circumstances include: (1) the frequency of the discriminatory conduct; (2) its severity; (3)
whether it is threatening and humiliating, or a mere offensive utterance; and (4) “whether it
unreasonably interferes with an employee’s work performance.” Id. “Ultimately, to avoid
dismissal…a plaintiff need only plead facts sufficient to support the conclusion that she was
faced with “harassment ... of such quality or quantity that a reasonable employee would find the

15

conditions of her employment altered for the worse,” and the Second Circuit has “repeatedly
cautioned against setting the bar too high in this context.” Patane, 508 F.3d at 113 (citing Terry,
336 F.3d at 148) (emphasis and internal quotation marks omitted).
Here, Spence’s hostile work environment claim is predicated on the following
allegations—which are substantially the same as the discriminatory acts alleged that support her
discrimination claim: she received a negative evaluation from Bukofzer; she was excluded from
one meeting and accused of lying at another; she received unfavorable or unsafe assignments;
she was demoted and received salary decreases; and Bukofzer referred to black employees as
“her monkeys” and “slaves.” Moreover, Spence alleges that she repeatedly complained
internally “about the racially hostile work environment” and the “continuing racial
discrimination issues” in her office to no avail. TAC at ¶¶ 41, 44.
Spence’s hostile work environment claim, when viewed in the light most favorable to
her, plausibly describes an objectively hostile work environment that could have reasonably
interfered with her ability to work—especially in light of the alleged derogatory statements and
Spence’s multiple complaints. See, e.g., Vega, 801 F.3d at 92 (“Some of these actions,
considered individually, might not amount to much. Taken together, however, they plausibly
paint a mosaic of retaliation…”). Although the TAC does not state how pervasive the racial
slurs were or whether Spence herself was subjected to these slurs, a jury could well conclude that
she was subject to severely offensive conduct that interfered with her ability to perform her
functions. See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (concluding that “general
allegations of constant abuse” create a jury question as to severity and pervasiveness “even in the
absence of specific details about each incident”). Although whether a particular work
environment is objectively hostile is necessarily a fact-intensive inquiry, the Court concludes that

16

Spence has alleged sufficient facts to be “entitled to offer evidence to support her claim.” See
Patane, 508 F.3d at 114 (vacating district court’s dismissal of hostile work environment claim).
The Court therefore DENIES Defendants’ motion to dismiss the hostile work environment claim.
C. Failure to Exhaust Administrative Remedies for Title VII Retaliation Claim
Defendants further argue that the Title VII retaliation claim must be dismissed for failure
to exhaust administrative remedies. Defs.’ Mem. at 8–9. 5 It is well established that Title VII
requires a plaintiff to exhaust administrative remedies before filing suit in federal court. Fowlkes
v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015); Ragone v. Atlantic Video at
Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010). “The purpose of this exhaustion requirement
is to give the administrative agency the opportunity to investigate, mediate, and take remedial
action.” Fowlkes, 790 F.3d at 384 (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d
Cir. 1998)). Thus, if a plaintiff does not include a claim in its filing with the EEOC, that
particular claim is generally barred from review in federal court. See Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (“Exhaustion of administrative remedies
through the EEOC is ‘an essential element’ of the Title VII ... statutory scheme[] and, as such, a
precondition to bringing such claims in federal court.”). However, Courts allow plaintiffs to
proceed with claims that have not been exhausted if the allegations are deemed “reasonably
related” to those asserted in the administrative complaint. Id.
Here, Defendants argue that the Title VII retaliation claim must be dismissed for failure
to exhaust administrative remedies because Spence made no allegations in her SDHR complaint
that she was retaliated against. Defs.’ Mem. at 9. However, the Second Circuit has held that
“alleging retaliation by an employer against an employee for filing a discrimination charge is one

5

Defendants do not argue her Title VII discrimination claim should also be dismissed on this basis. See id.

17

type of claim we have recognized as ‘reasonably related’ to the underlying discrimination
charge.” Legnani, 274 F.3d at 686.
Defendants further argue that Spence cannot claim that her alleged retaliation took place
as a result of her filing the complaint with SDHR on December 30, 2014 because the termination
of her probationary period as a Housing Inspector took place on October 17, 2014—over two
months before she filed her SDHR Complaint. Defs.’ Mem. at 9. However, Defendants ignore
the discriminatory conduct she alleges occurred immediately after she complained to HPD’s
E.E.O. Department in June and September 2014. Spence lodged discrimination complaints with
the E.E.O. Department on both June 24, 2014 and September 12, 2014, and on September 12,
2014—contemporaneous to her second internal complaint—was given a rating of
“unsatisfactory” by Bukofzer. TAC at ¶¶ 41–45. Moreover, Spence alleges that HPD
unlawfully terminated her probationary employment a month after her second internal complaint.
Id. at ¶¶ 47–49.
As such, the Court finds Spence’s retaliation claim is reasonably related to the underlying
discrimination charge. Therefore, Spence’s Title VII retaliation claim is not time-barred, and
Defendants’ motion with respect to this claim is DENIED.
D. Liability of the Individual and City Defendants
Defendants correctly assert that the Title VII claims against Bukofzer must be dismissed
because Title VII does not permit individual liability. See Reynolds v. Barrett, 685 F.3d 193,
202 (2d Cir. 2012) (“Employers, not individuals, are liable under Title VII.”); Patterson, 375
F.3d at 226 (“Title VII claims are not cognizable against individuals, individuals may be held

18

liable under §§ 1981 and 1983 for certain types of discriminatory acts.”). Accordingly, the Court
GRANTS Defendants’ motion to dismiss the Title VII claims against Bukofzer with prejudice.
Defendants also argue that Spence’s § 1981 claims against HPD must be dismissed
because she fails to plausibly plead municipal liability. See Defs.’ Mem. at 16–17. A
municipality cannot be held liable under § 1981 solely on a theory of respondeat superior.
Patterson, 375 F.3d at 226 (citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S.
658, 690–91 (1978)). A § 1981 claim can only be brought against a municipality if the action
that is alleged to be unconstitutional was the result of an official policy or custom. Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 735 (1989) (holding that because the “express ‘action at law’
provided by § 1983 ... provides the exclusive federal damages remedy for [a] violation of the
rights guaranteed by § 1981,” plaintiff “must show that the violation of his ‘right to make
contracts’ protected by § 1981 was caused by a custom or policy within the meaning of Monell
and subsequent cases”); see also Monell, 436 U.S. at 694 (holding that a local government may
not be sued under § 1983 unless “execution of [the] government’s policy or custom ... inflicts the
injury”); Sullivan v. Newburgh Enlarged Sch. Dist., 281 F. Supp. 2d 689, 708 (S.D.N.Y. 2003)
(applying Monell standard to hostile work environment claim under 42 U.S.C. § 1983). 6
The Second Circuit has established a two-pronged test for claims brought against a
municipality. First, the plaintiff must prove “‘the existence of a municipal policy or custom in
order to show that the municipality took some action that caused his injuries beyond merely

6

The requirements for imposing municipal liability under 42 U.S.C. § 1983 are the same as those applicable to
claims brought against municipalities under 42 U.S.C. § 1981. See Daughtry v. City of New York, No. 12 Civ. 2655
(RER), 2015 WL 2454115, at *8 (E.D.N.Y. Feb. 23, 2015) (“Case law suggests that courts resolve §§ 1981 and
1983 claims under the same substantive standards, although they might frame the analysis differently.”) (collecting
cases); Carmody v. Village of Rockville Ctr., 661 F. Supp. 2d 299, 330 (E.D.N.Y. 2009) (claims of discrimination
and retaliation under Section 1981 employ “the same standard for prevailing on a claim of municipal liability under
Section 1983, also known as a Monell claim”).

19

employing the misbehaving [official].’” Johnson v. City of New York, No. 06 Civ. 9426 (GBD),
2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (quoting Vippolis v. Vill. of Haverstraw, 768
F.2d 40, 44 (2d Cir. 1985)). Second, the plaintiff must establish a causal connection between the
policy or custom and the alleged deprivation of his constitutional rights. Id.
To satisfy the first prong of the test on a motion to dismiss, a plaintiff must allege the
existence of:
(1) a formal policy which is officially endorsed by the municipality; (2) actions
taken or decisions made by government officials responsible for establishing
municipal policies which caused the alleged violation of the plaintiff’s civil
rights; (3) a practice so persistent and widespread that it constitutes a custom or
usage and implies the constructive knowledge of policy-making officials; or (4)
a failure by official policy-makers to properly train or supervise subordinates to
such an extent that it amounts to deliberate indifference to the rights of those
with whom municipal employees will come into contact.
Cuellar v. Love, No. 11 Civ. 3632 (NSR), 2014 WL 1486458, at *10 (S.D.N.Y. Apr. 11,
2014) (quoting Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y. 1996)).
The TAC does not allege that HPD adopted any recognized policy under the first prong
of the Second Circuit test, nor does it suggest that Bukofzer is a final policymaker sufficient to
satisfy the second prong. Thus, the only remaining alternatives to plead Monell liability requires
alleging a practice so widespread that it constitutes a custom or usage, or a failure to train or
supervise. Here, Spence has failed to plead the requirements to impose municipal liability under
either alternative. Spence fails to allege any facts that HPD has a policy, practice, or custom that
caused violations of Spence’s constitutional rights or contributed to a hostile work environment,
or that HPD engaged in inadequate training and supervision that amounts to deliberate
indifference. While Spence argues that “[i]t is clear from the facts alleged that there is a policy
that has been endorsed by the HPD … which gave rise to Ms. Bukofzer performing these

20

actions,” Pl.’s Opp. at 5, she cites to no specific facts from the TAC to support this wholly
conclusory assertion, and the Court discerns none within it.
Thus, Spence has not met her burden with respect to her § 1981 claims against HPD.
Accordingly, Defendants’ motion with respect to the § 1981 claims against HPD is GRANTED,
and the claims against HPD are dismissed without prejudice. Should Spence decide to pursue
the § 1981 claims against HPD, she is granted leave to amend the Complaint.
* * *
In sum, Spence’s discrimination, retaliation, and hostile work environment claims survive
against HPD only under Title VII and against Bukofzer only under § 1981. For both the Title
VII discrimination and retaliation claims, any discrete events or acts that took place before
March 5, 2014—including the issuance of the March 4, 2014 report—are time-barred. For her
Title VII hostile work environment claim, unlike the claims for discrimination and retaliation,
the Court shall take into account all allegedly hostile incidents asserted in the TAC as long as
one of them occurred within the 300-day statutory time period. See Nat’l R.R. Passenger Corp.,
536 U.S. at 117. Spence will be given the opportunity to amend her § 1981 claims to plead
municipal liability against HPD.
E. State Tort Claims for Intentional and Negligent Infliction of Emotional Distress
Defendants argue that Spence’s state tort claims for intentional and negligent infliction of
emotional distress must be dismissed for failure to comply with the notice of claim requirements.
Doc. 29 at 2. 7 Under New York law, a notice of claim is a condition precedent to bringing a tort
claim against a municipality and such notice of claim must be served within 90 days of the claim

7

Defendants also argue that Spence fails to state a plausible claim for intentional or negligent infliction of emotional
distress, see Defs.’ Mem. at 19, but the Court need not decide this issue as the notice of claim issue is dispositive.

21

arising. See N.Y. Gen. Mun. Law § 50-e. 8 The Second Circuit has held that state notice-ofclaim statutes apply to state law claims brought in federal court. Hardy v. N.Y. City Health &
Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999). Notice of claim requirements “are construed
strictly by New York state courts,” and failure to comply with these requirements “ordinarily
requires a dismissal for failure to state a cause of action.” Id. at 793–94 (internal quotation
marks and citations omitted). “The purpose of the notice-of-claim requirement is to afford the
municipality an adequate opportunity to investigate the claim in a timely and efficient manner
and, where appropriate, to settle claims without the expense and risks of litigation.” Id. (quoting
Fincher v. Cnty. of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997)). A notice of claim
must also identify the individual employees whom a plaintiff seeks to assert claims against. See
Schafer v. Hicksville Union Free Sch. Dist., No. 06 Civ. 2531 (JS), 2011 WL 1322903, at *11
(E.D.N.Y. Mar. 30, 2011) (Plaintiffs “may not file a notice of claim naming a municipal entity
and then commence an action against a roster of individual municipal employees.”) (internal
quotation marks omitted).
Here, Spence did not file a notice of claim with respect to either Defendant. Moreover,
her failure to comply with the statutory notice of claim requirements is not cured by the fact that
she filed the initial complaint and notice of claim pro se. See, e.g., Castillo v. City of N.Y., 24
Misc. 3d 1231(A), 899 N.Y.S.2d 58, 58 (Sup. Ct. 2009) (“Petitioner asserts that there is a
reasonable excuse for delay because she attempted to serve a Notice of Claim pro se. However,
courts have not accepted that ignorance of the law serves as a valid excuse for failure to file a

8

The statute reads in relevant part that “[i]n any case founded upon tort where a notice of claim is required by law as
a condition precedent to the commencement of an action or special proceeding against a public corporation, as
defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall
comply with and be served in accordance with the provisions of this section within ninety days after the claim
arises...” Id.

22

Notice of Claim.”) (listing cases); see also Davis v. Ventimiglia, 07 Civ. 6043 (LAP), 2009 WL
4910047 (S.D.N.Y. Dec. 21, 2009) (dismissing pro se plaintiff’s state law claims for failure to
comply with notice of claim procedures).
Accordingly, the Court GRANTS Defendants’ motion with respect to the negligent and
intentional infliction of emotional distress claims against Defendants.
V.

CONCLUSION
For the foregoing reasons, the Court GRANTS Spence’s request to re-open the case in

light of the parties’ failure to consummate the settlement agreement. Doc. 35. The Clerk of the
Court is respectfully directed to re-open the matter.
The Court GRANTS in part and DENIES in part Defendants’ motion to dismiss as
follows:
•

The Court DENIES Defendants’ motion to dismiss the § 1981 claims against
Bukofzer.

•

The Court GRANTS Defendants’ motion to dismiss the § 1981 claims against
HPD without prejudice.

•

The Court GRANTS Defendants’ to dismiss the Title VII claims against Bukofzer
with prejudice.

•

The Court DENIES Defendants’ motion to dismiss the Title VII claims against
HPD.

•

The Court GRANTS Defendants’ motion to dismiss the intentional and negligent
infliction of emotional distress claims against both Bukofzer and HPD with
prejudice.

23