Shultz v. Congregation Shearith Israel of the City of New York et al

Filing 69

OPINION AND ORDER re: 26 MOTION to Dismiss the Second Amended Complaint. filed by Congregation Shearith Israel of the City of New York, The Spanish and Portugese Synagogue, Michael Lustig, Barbara Reiss, Meir Soloveichik. For the foregoing reasons, Defendants' motion to dismiss is GRANTED. The Court dismisses the federal claims for failure to state a claim under Rule 12(b)(6) and dismisses the state- and city-law claims without prejudice because the Court declines to exercise supplemental jurisdiction over those claims. Plaintiff is granted leave to file a Fourth Amended Complaint provided that she does so on or before September 15, 2016. The Clerk of Court is directed to close the motion at Docket Number 26. (As further set forth in this Order), ( Amended Pleadings due by 9/15/2016.) (Signed by Judge J. Paul Oetken on 8/15/2016) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ALANA SHULTZ,
:
Plaintiff,
:
:
-v:
:
CONGREGATION SHEARITH ISRAEL OF
:
THE CITY OF NEW YORK, THE SPANISH
:
:
AND PORTUGUESE SYNAGOGUE; MEIR
SOLOVEICHIK, in his personal and
:
:
professional capacities; and MICHAEL
LUSTIG, in his personal and professional
:
capacities,
:
:
Defendants. :
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15-CV-7473 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Alana Shultz filed this action against Congregation Shearith Israel of the City of
New York, the Spanish and Portuguese Synagogue (the “Congregation”), Meir Soloveichik,
Michael Lustig, and Barbara Reiss (collectively, “Defendants”) on September 22, 2015. Shultz
alleges that Defendants discriminated and retaliated against her on the basis of her sex in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”),
New York State law, and New York City law. She also asserts claims for defamation and for
interference with rights protected by the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2612(a). Defendants move to dismiss each claim under Federal Rule of Civil Procedure
12(b)(6). For the reasons that follow, the motion is granted.
I.

Background
Unless otherwise noted, the following facts are taken from the Third Amended Complaint

(Dkt. No. 56 (“Compl.”)) and are assumed true for the purpose of this motion.

The Congregation is the oldest Jewish congregation in the United States. (Compl. ¶ 1.)
Soloveichik is one of its Rabbis; Lustig is a member of its Board of Trustees; and Reiss is its
Executive Director. (Compl. ¶¶ 22-24.) Shultz worked as the Congregation’s Program Director
from 2004 to 2015. (Compl. ¶ 25.) Her duties included “planning and coordinating events” and
“helping to organize the nursery school program.” (Compl. ¶ 25.)
Shultz was married on June 28, 2015. (Compl. ¶ 53.) At the time of her marriage, she
was pregnant. (Id.) Before leaving for her honeymoon, Shultz told Reiss that she was pregnant
and asked her to inform the Congregation’s Rabbis. (Compl. ¶ 54.) Shultz returned from her
honeymoon on July 20, 2015. (Compl. ¶ 56.) The next morning, Reiss inquired about Shultz’s
pregnancy, and the two employees “spoke in detail.” (Compl. ¶ 58.) Reiss then asked Shultz to
meet with her, Soloveichik, and Lustig. (Compl. ¶ 59.) At that meeting, Reiss told Shultz that
she was terminated, effective August 14, 2015, “because the Congregation was ‘eliminating’ her
position.” (Compl. ¶ 62.) Shultz responded that “being fired when she was pregnant and visibly
showing would make it extremely difficult, if not impossible, [for her] to obtain a new job.”
(Compl. ¶ 66.) Her statement “was met with complete silence” by Soloveichik and Lustig, who
“refused to speak to [her]” throughout the encounter. (Compl. ¶¶ 66-67.)
Reiss then presented Shultz with a severance agreement, which offered her six weeks of
pay in exchange for “a complete waiver of [her] right to commence an action for pregnancy or
gender discrimination or a claim pursuant to the FMLA.” (Compl. ¶¶ 69-70.) Shultz, who
believed that the restructuring “was a pretextual excuse to terminate her because Defendants
disapproved of the fact that she was pregnant at the time of her marriage,” retained counsel and,
on July 30, 2015, informed the Congregation that she had hired a lawyer “for her claims arising
from gender and pregnancy discrimination.” (Compl. ¶¶ 74-76.) Six days later, Reiss gave

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Shultz a letter reinstating her to her position as Program Director (the “rescission letter”).
(Compl. ¶ 79.)
Shultz asserts that the rescission letter was not “not a bona fide offer of unconditional
reinstatement.” (Compl. ¶¶ 80-81.) To support this assertion, she alleges that, after she received
the letter: (1) she overhead a phone call in which Reiss told Lustig that, “as an orthodox
synagogue, Defendants ‘had a right to disapprove of the fact that [she] was pregnant before her
wedding”; (2) she heard Reiss tell Lustig that Shultz was “looking for a lottery ticket” and had
“no problem having this [legal claim] out in the community”; (3) Soloveichik and Lustig did not
speak to her; and (4) Reiss “continued to instruct her to complete tasks prior to departure and [to]
transition [her] responsibilities to other employees.” (Compl. ¶¶ 82-94.) Shultz did not return to
work at the Congregation after August 14, 2015. (Compl. ¶ 94.)
Following Shultz’s departure, Defendants instructed the Congregation’s employees “not
to contact [Shultz] with questions.” (Compl. ¶ 97.) On September 25, 2015, three days after
Shultz filed suit and one day after Shultz effected service on Defendants, the Congregation sent
an email to its 500-plus person membership. (Compl. ¶ 99.) The email stated:
Congregation Shearith Israel categorically denies Ms. Shultz’s allegations of
discrimination or of doing anything wrong. In addition, Congregation Shearith Israel did
not terminate her employment. She continues to remain employed in the exact same title,
receiving the exact same compensation and benefits that she had been receiving all along.
Her claim of loss is fabricated and inaccurate. She has received (and continues to receive
to this very day) every penny, including for health benefits – even though she has not
been to work since August 14th. It is unfortunate that Ms. Shultz and her lawyers took
advantage of the Synagogue’s inability to respond to press inquiries in the hours before
Yom Kippur.
(Compl. ¶ 99.) The Congregation continued to issue paychecks to Shultz and to list her as a
Program Director in its publications after August 14, 2015. (Compl. ¶¶ 106-113; see also Dkt.
Nos. 59-60.)

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II.

Legal Standard
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on
its face.” Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility 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. (quoting Iqbal, 556 U.S. at 678). In determining whether this
standard is satisfied, courts assume that all “factual allegations contained in the complaint” are
true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572 (2007), and “draw all inferences in the
light most favorable to the non-moving party[],” In re NYSE Specialists Sec. Litig., 503 F.3d 89,
95 (2d Cir. 2007) (citation omitted).
III.

Discussion
Shultz asserts claims under Title VII, the FMLA, New York State Human Rights Law,

N.Y. Exec. Law § 296 et seq. (the “NYSHRL”), New York City Human Rights Law, N.Y.C.
Admin. Code § 8-107, et seq. (the “NYCHRL”), and New York defamation law. Her first set of
claims is based on her alleged termination by the Congregation. Shultz argues that Defendants
discriminated against her in violation of Title VII, the NYSHRL, and the NYCHRL by firing her
because she became pregnant before she was married. 1 She argues in the alternative that, even if
Defendants did not fire her, they constructively discharged her by rendering her workplace

1

Shultz’s first three complaints, which she filed before the Equal Employment Opportunity
Commission (“EEOC”) issued a right-to-sue notice, did not include Title VII claims. (See Dkt.
No. 35 at 10 n.5.) After the EEOC issued that notice, Shultz filed the Third Amended
Complaint, adding Title VII claims. (Dkt. No. 56.) The parties thereafter agreed that
Defendants’ arguments for dismissal of the NYSHRL claims in Shultz’s Second Amended
Complaint applied with equal force to her Title VII claims, and Defendants opted to rest on their
previously filed motion to dismiss. (See Dkt. No. 55.)
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conditions intolerable. Finally, Shultz asserts that, by firing or constructively discharging her,
Defendants interfered with her right to take FMLA-protected leave.
Shultz’s second set of claims concerns the email the Congregation circulated to its
membership in September 2015. She argues that the email constituted retaliation in violation of
Title VII, the NYSHRL, and the NYCHRL. Shultz also asserts a defamation claim based on the
Congregation’s statements.
The Court begins with Shultz’s federal claims.
A.

Title VII Discrimination

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To state a claim for employment
discrimination under Title VII, “a plaintiff must plausibly allege that (1) the employer took
adverse action against him, and (2) his race, color, religion, sex, or national origin was a
motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 87 (2d Cir. 2015). “‘[A]t the initial stage of the litigation’ in a Title VII case, ‘the
plaintiff does not need substantial evidence of discriminatory intent.’” Johnson v. Andy Frain
Servs., Inc., No. 15-1143, 2016 WL 210098, at *1 (2d Cir. Jan. 19, 2016) (quoting Littlejohn v.
City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). “Rather, what must be plausibly supported
by the 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 the employer was motivated by discriminatory intent.” Id. (citations and internal
quotation marks omitted).

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The dispositive question in this case is whether Shultz has plausibly alleged adverse
employment action. Shultz alleges that Defendants fired her because of her pregnancy, and thus,
because of her sex. See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1343 (2015) (“Title
VII’s prohibition against sex discrimination applies to discrimination based on pregnancy.”).
Defendants concede that Shultz is a member of a protected class and that firing someone is
adverse action. But they dispute that Shultz was fired “or subject to any other adverse
employment action.” (Dkt. No. 29 at 10.) Specifically, Defendants argue that, because they
rescinded Shultz’s termination prior to her last day of work and reinstated her “under the same
terms and conditions of employment [she] previously enjoyed,” Shultz has not pleaded
actionable adverse employment action. (Id.)
Under Second Circuit precedent, adverse employment action is a “materially adverse
change in the terms and conditions of employment.” Chung v. City of New York, 605 F. App’x
20, 22 (2d Cir. 2015) (quoting Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755
(2d Cir. 2004)). “Such a change must be ‘more disruptive than a mere inconvenience or an
alteration of job responsibilities.’” Id. (quoting Sanders, 361 F.3d at 755). Recognized
examples of adverse employment action include “termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices . . . unique to a particular
situation.” Id. (internal quotation marks and citation omitted).
There is no question that the termination of Shultz on July 21, 2015, by itself, would
constitute adverse employment action. However, Defendants gave her a letter explicitly
rescinding that termination shortly thereafter―and more than a week before the termination was

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to take effect. The question is whether her claim survives in light of the Congregation’s
rescission letter and subsequent conduct.
In analyzing claims concerning rescinded terminations, courts in this Circuit have
considered whether the rescission reinstated plaintiff to her previous position, or alternatively,
had lasting “adverse consequences.” Conkling v. Brookhaven Science Assoc., LLC, No. 10-CV4164, 2012 WL 2160439, at *4 (E.D.N.Y. June 12, 2012) (“[W]hile a termination that is
rescinded with no other adverse consequences does not constitute adverse employment action,
that is not what happened here. Although [p]laintiff’s termination was rescinded, she was not
reinstated to her previous position or salary.”) (internal citations omitted); see also Santiesteban
v. Nestle Waters N. Am., Inc., 61 F. Supp. 3d 221, 235 (E.D.N.Y. 2014) (holding that a
“withdrawn write up” was not adverse action); Cheshire v. Paulson, No. 04-CV-3884, 2007 WL
1703180, at *6 (E.D.N.Y. June 12, 2007) (holding that there was no adverse action where a
proposed suspension and termination was rescinded); Butler v. Potter, No. 06-CV-3828, 2009
WL 804722, at *13 (E.D.N.Y. Mar. 26, 2006) (“[T]he proposed notice of termination . . . is not a
materially adverse action because it is undisputed that it was expunged and there was no adverse
consequence to Butler, such as the loss of payment or time.”); Incarnato v. Tops Friendly
Markets, LLC, No. 04-CV-6599, 2006 WL 1330103, at *5 (W.D.N.Y. May 15, 2006), aff’d, 226
F. App’x 53 (2d Cir. June 4, 2007) (“While termination from employment certainly constitutes
an adverse employment action, where the termination is rescinded, and the plaintiff is offered reemployment under the same conditions as she previously enjoyed, the plaintiff cannot establish
that her employment was terminated.”). In determining whether a plaintiff suffered “adverse
consequences” after a rescinded termination, courts have focused on whether the defendant

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restored the plaintiff to her previous salary, title, and benefits. Conkling, 2012 WL 2160439, at
*4; see also Butler, 2009 WL 804722, at *13.
Courts outside this Circuit have taken a similar approach to adverse employment action.
See id. (collecting cases); Keeton v. Flying J, Inc., 429 F.3d 259, 263 (6th Cir. 2005) (“[W]hen
an otherwise adverse employment action is rescinded before the employee suffers a tangible
harm, the employee has not suffered an adverse employment action.”) The Second Circuit
appears to have approved this approach as well. In Tepperwien v. Entergy Nuclear Operations,
Inc., 663 F. 3d 556, 570 (2d Cir. 2011), an employee who had filed grievances about workplace
harassment was given a disciplinary “counseling letter” concerning safety protocols, which his
employer later rescinded. Id. at 564. The employee alleged that the counseling letter was
adverse action taken in retaliation for his complaints. 2 Id. at 570. The Second Circuit rejected
this argument because, among other reasons, “the counseling was rescinded.” Id. (citations
omitted). Noting that it did not “hold that rescinded discipline can never constitute materially
adverse action,” the court nonetheless concluded that there was no adverse action in that case.
Id.
These cases establish that a rescinded termination does not constitute adverse action
under Title VII, at least where the employee is restored to her prior position and salary with no
gap in employment and with no other tangible harm or material change in the conditions of
employment.

2

While Tepperwien concerned adverse action in the context of Title VII retaliation, the court’s
analysis of rescinded employer conduct relied on a number of Title VII discrimination cases. See
Tepperwein, 663 F.3d at 570 (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d
Cir. 2006), and Sanders, 361 F.3d at 756). As noted below, the term “adverse action” is broader
in the context of retaliation than it is in the context of discrimination. See Hicks v. Baines, 593 F.
3d 159, 165 (2d Cir. 2010); Hahn v. Bank of Am. Inc., No. 12-CV-4151, 2014 WL 1285421, at
*14 (S.D.N.Y. Mar. 31, 2014).
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Apart from the termination itself (which was rescinded before it took effect), the facts
alleged in this case are sparse. Shultz asserts, in sum, that after she received the rescission letter:
(1) she overheard a phone call in which Reiss “disparaged” her and her lawyers; (2) Reiss
required her to complete “her regular and customary work assignments ahead of schedule”; (3)
the Congregation removed her name from a wall and a synagogue membership newsletter, but
later listed her in newsletters and stated that she continued to be employed; and (4) Soloveichik
and Lustig did not speak to her and “noticeably failed to congratulate her on her pregnancy.”
(Compl. ¶¶ 82-107.) Shultz does not allege that the Congregation changed her title, salary, or
benefits, nor does she allege any gap in her pay. She does not plead any factual context about
whether she typically spoke with Soloveichik and Lustig in the course of her employment, and
thus, whether it was unusual not to speak to them. She does not explain how Defendants made
“clear . . . that her continued employment was conditional.” (Compl. ¶ 81.) And, while she
asserts that she knew “that Defendants would use every opportunity to berate and shame her,”
she does not allege facts, beyond those listed above, to explain or support that assertion. (Compl.
¶ 85.)
None of the post-rescission conduct alleged by Shultz constitutes adverse action under
the governing law. Neither the acceleration of an employee’s customary job duties nor the
failure to congratulate an employee on her pregnancy is adverse employment action. See Mills v.
S. Conn. State Univ., 519 F. App’x 73, 75 (2d Cir. 2013) (noting that disparaging remarks and
“shunning by [plaintiff’s] colleagues” did not constitute adverse employment action); Potash v.
Florida Union Free Sch. Dist., 972 F. Supp. 2d 557, 584 (S.D.N.Y. 2013) (“Changes in
assignments or responsibilities that do not ‘radical[ly] change’ the nature of work are not
typically adverse employment actions.”) (quoting Galabya v. New York City Bd. of Educ., 202

9

F.3d 636, 640 (2d Cir. 2000)); Davis v. Verizon Wireless, 389 F. Supp. 2d 458, 478 (W.D.N.Y.
2005) (“[B]eing shunned by co-workers does not constitute an adverse employment action.”).
Similarly, disparaging comments made in one phone call overheard by Shultz do not constitute
adverse action as that term is defined in the Second Circuit. See Mills, 519 F. App’x at 75;
Albuja v. Nat’l Broad. Co. Universal, Inc., 851 F. Supp. 2d 599, 606 (S.D.N.Y. 2009); Pacheco
v. New York Presbyterian Hosp., 593 F. Supp. 2d 599, 619-20 (S.D.N.Y. 2009) (discussing
“unfavorable criticism” and “rushed work assignment[s]” in the context of Title VII
discrimination claims).
At oral argument, Shultz’s counsel insisted that Defendants’ letter rescinding the
termination was not a “bona fide” offer of reinstatement. This argument fails for the same
reasons discussed above. In light of the employer’s letter unconditionally rescinding the
termination, Shultz must allege specific facts plausibly showing that her termination was not
genuinely being rescinded―either a change in her salary or title or some tangible, material
adverse change in her employment conditions. She has failed to allege such facts. The bare
allegation in the Complaint that the rescission was not “bona fide” is a legal conclusion, not a
factual allegation. To the extent that Plaintiff’s counsel is assuming that a “bona fide” rescission
of a termination must be sincere or heartfelt―in the sense that the employer must subjectively
want to rescind the termination and retain the employee―that assumption is unfounded under
the law. An employer may validly rescind a termination merely to avoid liability, even
begrudgingly, so long as the employer restores the employee to her position with no material
change or consequence.
Even assuming the truth of Shultz’s allegations, and drawing all inferences in her favor,
the Court concludes that Shultz has not plausibly alleged adverse employment action. To the

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extent that she alleges discrimination based on the termination of her employment or postrescission adverse employment action, Shultz has failed to state a claim.
B.

Constructive Discharge

Shultz’s primary theory of VII liability is that the Congregation fired her. She argues in
the alternative that she was constructively discharged. “The constructive-discharge doctrine
contemplates a situation in which an employer discriminates against an employee to the point
such that his working conditions become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign.” Green v. Brennan, 136 S. Ct. 1769,
1776 (2016) (citation and internal quotation marks omitted).
Plaintiffs alleging constructive discharge “face a demanding standard.” 3 Pryor v. Jaffe &
Asher, LLP, 992 F. Supp. 2d 252, 262 (S.D.N.Y. 2014) (internal quotation marks omitted); see
Ingrassia v. Health & Hosp. Corp., 130 F. Supp. 3d 709, 725 (E.D.N.Y. 2015) (“Creation of a
hostile work environment is a necessary predicate to a hostile-environment constructive
discharge case.”) (quoting Penn. State Police v. Suders, 542 U.S. 129, 149 (2004)); Early v.
Wyeth Pharmaceuticals, Inc., 603 F. Supp. 2d 556, 582 (S.D.N.Y. 2009) (“A constructive
discharge claim may be viewed as an aggravated case of hostile work environment.”) (citation
and internal quotation marks omitted). To succeed on a constructive discharge claim, an
employee must show, first, that her employer created an intolerable environment that forced her
to resign, and second, that a reasonable person in her circumstances would have found the work
conditions so intolerable as to compel resignation. Adams v. Festival Fun Parks, LLC, 560 F.

3

Pryor discusses the “demanding” standard for constructive discharge claims asserted under the
NYSHRL. Pryor, 992 F. Supp. 2d at 262. The same standard applies here because “[c]laims
brought under New York State’s Human Rights Law are analytically identical to claims brought
under Title VII of the Civil Rights Act of 1964.” Id. at 256 (quoting Torres v. Pisano, 116 F.3d
625, 629 n.1 (2d Cir. 1997)) (alternations omitted).
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App’x 47, 49-50 (2d Cir. 2014) (citing Petrosino v. Bell Atlantic, 385 F. 2d 210, 213 (2d Cir.
2004)); see also Edwards v. Huntington Union Free Sch. Dist., 957 F. Supp. 2d 203, 213
(E.D.N.Y. 2013) (“[C]onstructive discharge requires more than the employee finding the
employment environment to be “very uncomfortable”—the work environment must be
“intolerable.”) (quoting Petrosino, 385 F. 2d at 230).
For the reasons already discussed, Shultz has not met this high bar. Shultz alleges one
disparaging phone call, accelerated work assignments, a failure to congratulate her on her
pregnancy, and inconsistent public treatment of her employment status, culminating in her being
included in Congregation newsletters. She also asserts that Soloveichik and Lustig disapproved
of her, but as noted above, does not allege facts to support or contextualize this conclusory
assertion. Given the high standard for constructive discharge claims, Shultz has not plausibly
alleged that Defendants created an environment so intolerable as to compel her resignation. See
Febrianti v. Worldwide, No. 15-CV-0635, 2016 WL 502027, at *6 (S.D.N.Y. Mar. 7, 2016)
(Furman, J.) (dismissing a constructive discharge claim); Dowrich-Weeks v. Cooper Sq. Realty,
Inc., No. 11-CV-5966, 2012 WL 3826981, at *4 (S.D.N.Y. Sept. 4, 2012), aff’d, 535 F. App’x 9
(2d Cir. 2013) (same); Mohamed v. NYU, No. 14-CV-8373, 2015 WL 5307391, at *4 (S.D.N.Y.
Sept. 10, 2015) (same); De La Pena v. Metro. Life. Ins. Co., 953 F. Supp. 2d 393, 419 (E.D.N.Y.
2013) (same). Her constructive discharge claim is therefore dismissed.
C.

FMLA Claim

Shultz third claim is that Defendants violated her right to take leave protected by the
FMLA. “[T]o prevail on a claim of interference with her FMLA rights, a plaintiff must
establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an
employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4)

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that she gave notice to the defendant of her intention to take leave; and 5) that she was denied
benefits to which she was entitled under the FMLA.” Graziadio v. Culinary Inst. of Am., 817
F.3d 415, 424 (2d Cir. 2016). While a plaintiff need not establish a prime facie case of FMLA
interference at the initial pleading stage, her claim must be plausible to survive a motion to
dismiss. See Ross v. State of New York, No. 15-CV-3286, 2016 WL 626561, at *8 n.8 (S.D.N.Y.
Feb. 16, 2016) (discussing the pleading standard for FMLA claims).
Shultz’s sole theory of FMLA liability is that, in firing or constructively discharging her,
Defendants “impeded her ability to continue employment and take [protected] leave.” (Dkt. No.
35 at 27.) She offers no other argument as to how Defendants denied her benefits protected by
the FMLA. For reasons already stated, Shultz has not plausibly alleged that she was terminated,
constructively discharged, or otherwise subject to post-rescission adverse employment action. 4
She has thus failed to plausibly allege that Defendants denied her leave, and accordingly, has
failed to state an interference claim.
D.

Title VII Retaliation

Shultz’s final federal claim is that Defendants retaliated against her in violation of Title
VII. A prima facie case of retaliation under Title VII requires evidence showing: “(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.” Littlejohn, 795 F.3d at 316 (quoting Hicks v. Baines, 593 F.3d 159,
164 (2d Cir. 2010)). A plaintiff need not plead facts sufficient to establish a prima facie case to

4

Defendants also argue that Shultz has not alleged that she gave the Congregation notice of her
intent to take FMLA leave. (Dkt. No. 29 at 20.) In light of the conclusion that Shultz has not
plausibly pleaded that the Congregation denied her leave, the Court need not address this
alternative argument for dismissal.
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survive a motion to dismiss. Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 512 (S.D.N.Y.
2010) (Lynch, J.). But the complaint must contain factual allegations that provide “plausible
support” for a prima facie case of retaliation, Littlejohn, 795 F.3d at 316, and thus, “raise a right
to relief above the speculative level,” Twombly, 550 U.S. at 555.
Shultz alleges that Defendants retaliated against her for retaining counsel, threatening to
sue, and filing this lawsuit. See Mandel v. Rafe, No. 10-CV-6045, 2012 WL 1981453, at *5
(S.D.N.Y. May 31, 2012) (noting that retaining counsel and threatening to sue are protected
activities). In her moving papers, she argues that Defendants retaliated by: (1) “continu[ing] to
. . . discriminate against [her] for complaining about discrimination after she retained counsel”;
(2) “engag[ing] in a campaign of disparaging and defaming statements after she complained of
discrimination”; and (3) claiming to employees and the Congregation’s membership that she was
employed beyond her last day at work. (Dkt. No. 35 at 17-18.) In her Third Amended
Complaint, Shultz also alleges that the Congregation retaliated against her by stating in the
September 2015 email to its membership that she was still employed and that she “took
advantage of the Synagogue’s inability to respond to press inquiries in the hours before Yom
Kippur.” (Compl. ¶ 180.) Defendants argue that none of these acts constitutes adverse
employment action and that none of their conduct was retaliatory, i.e., causally connected to
Shultz’s protected activity.
Defendants’ argument prevails. The allegation that Defendants “continued to . . .
discriminat[e]” against Shultz after she retained counsel is conclusory. Moreover, it undermines,
rather than supports, any plausible inference that there was a causal connection between
Defendants’ conduct and her protected activity. By alleging “continued” conduct, Shultz is
arguing that Defendants persisted in actions that pre-dated her retention of counsel. In the

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absence of an assertion that Defendants engaged in adverse action after and in response to her
decision to seek a lawyer and assert her rights under Title VII, Shultz has not adequately pleaded
that Defendants acted in retaliation for her threat of legal action.
With respect to Shultz’s other allegations, while she asserts the existence of a “campaign”
of disparaging statements, Shultz’s specific factual allegations are that: (1) she overheard
offensive statements Reiss made in a phone call with Lustig; (2) the Congregation told
employees not to contact her after her last day at work; (3) the Congregation told its employees
and members that she was still employed after August 14, 2015; and (4) the Congregation’s
email to its members accused her of taking advantage of a religious holiday and filing a
“fabricated and inaccurate” claim. (Compl. ¶ 99.) The question is whether these statements
constitute adverse action.
The term “adverse action” is broader in the context of retaliation than it is in the context
of Title VII discrimination. See Hicks, 593 F. 3d at 165 (2d Cir. 2010) (“Title VII’s antidiscrimination and anti-retaliation provisions are not coterminous; anti-retaliation protection is
broader and extends beyond workplace-related or employment-related retaliatory acts and
harm.”) (citation and internal quotation marks omitted). For the purpose of a retaliation claim,
employer conduct is actionable when it is “materially adverse to a reasonable employee.” Id.
(citation and internal quotation marks omitted). Employer conduct meets this standard when it is
“harmful to the point that [it] could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Id. (quoting Burlington N. & Sante Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006)); see also Bowen-Hooks, 13 F. Supp. 3d at 224. “Actions that are ‘trivial
harms’—i.e., ‘those petty slights or minor annoyances that often take place at work and that all
employees experience’—are not materially adverse.” Tepperwien, 663 F.3d at 568 (quoting

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Burlington, 548 U.S. at 68). Thus, “Title VII does not protect an employee from ‘all retaliation,’
but only ‘retaliation that produces an injury or harm.’” Id. (quoting Burlington, 548 U.S. at 67).
Shultz has not plausibly alleged adverse action sufficient to support a retaliation claim.
Shultz asserts, in sum, that Defendants inaccurately stated that she was still employed and
encouraged employees not to contact her after her last day of work, that she overheard offensive
comments made by her boss, and that the Congregation distributed a strong statement about her
lawsuit after it had been filed. Even viewed together, and in the light most favorable to Shultz,
these allegations do not meet the governing standard for materially adverse action. See
Burlington, 548 U.S. at 68 (“[P]ersonality conflicts at work that generate antipathy and snubbing
by supervisors and co-workers are not actionable . . . .”); Hicks, 593 F. 3d at 167 (affirming
dismissal of retaliation claims based on conclusory allegations of “workplace sabotage”);
Tepperwein, 663 F. 3d at 571 (holding that a supervisor’s statement that “there are people here I
don’t like,” made while staring at the plaintiff, was not materially adverse action); Vazquez v.
Southside United Dev. Fund. Corp., No. 06-CV-5997, 2009 WL 2596490, at *12 (E.D.N.Y.
Aug. 21, 2009) (holding that a supervisor’s comment that plaintiff was a “traitor” who should be
fired, “while unprofessional and offensive,” were not materially adverse actions); Martinez v.
New York City Dep’t of Educ., No. 04-CV-2728, 2008 WL 2220638, at *12 (S.D.N.Y. May 27,
2008) (concluding that “incidents where [defendant] publicly yelled at [p]laintiff for various
reasons” and called him derogatory names were not actionable). Shultz’s Title VII retaliation
claim is therefore dismissed.
E.

State- and City-Law Claims

Shultz’s remaining claims arise under state and city law. Because it has dismissed all of
Shultz’s federal claims, the Court declines to exercise supplemental jurisdiction over these non-

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federal claims. See Oneida Indian Nation of New York v. Madison Cty., 665 F. 3d 408, 436-37
(2d Cir. 2011) (“Although federal courts may exercise jurisdiction over related state-law claims
. . . a court may . . . nonetheless decline to exercise supplemental jurisdiction over a claim
[where] . . . the district court has dismissed all claims over which it has original jurisdiction.”)
(citation and internal quotation marks omitted); Valencia ex rel. Franco v. Lee, 316 F. 3d 299,
305 (2d Cir. 2003) (“[I]n the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction
over the remaining state-law claims.”) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988)). Given the early stage of this litigation, the Court concludes that the Cohill
factors support the decision to decline supplemental jurisdiction in this case. Id.
F.

Leave to Amend

At oral argument, counsel for Shultz requested leave to amend the complaint in the event
that the Court grants the motion to dismiss. Although the operative complaint is her Third
Amended Complaint, Shultz has not yet had an opportunity to amend in light of the specific
issues addressed in this opinion. Therefore she will be granted to leave to file an amended
complaint if she has a good faith basis for alleging facts that are sufficient to state a claim under
the standards discussed above.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The Court

dismisses the federal claims for failure to state a claim under Rule 12(b)(6) and dismisses the
state- and city-law claims without prejudice because the Court declines to exercise supplemental
jurisdiction over those claims.

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Plaintiff is granted leave to file a Fourth Amended Complaint provided that she does so
on or before September 15, 2016.
The Clerk of Court is directed to close the motion at Docket Number 26.

SO ORDERED.
Dated: August 15, 2016
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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