Williams v. New York State Unified Court System Office of Court Administration et al

Filing 51

MEMORANDUM AND OPINION: For the reasons stated here, the Individual Defendants' motion for partial dismissal, (Doc. 40), is GRANTED IN PART and DENIED IN PART. Count II is dismissed in its entirety. Counts I, III and IV are dismissed in part, as they fail to state a claim for: (1) hostile work environment against the Individual Defendants, (2) discrimination and retaliation under § 1983 and the NYSHRL against the Individual Defendants based on Plaintiff's July 2013 Suspension ; (3) discrimination and retaliation under § 1983 and the NYSHRL against Defendant O'Brien based on the decision to place Plaintiff on probation; (4) discrimination and retaliation under § 1983 and the NYSHRL against Defendant O 9;Brien based on the June 2015 Termination; (5) retaliation under § 1983 and the NYSHRL against Defendant Loehr; and (6) sex discrimination under the NYSHRL against the Individual Defendants. The parties are instructed to meet and confer regar ding the scheduling of discovery and should submit a proposed case management plan and scheduling order on or before October 27, 2017. The Clerk of Court is respectfully directed to terminate the pending motion at Document 40. (Signed by Judge Vernon S. Broderick on 9/30/2017) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
:
SHANNON WILLIAMS,
:
:
Plaintiff,
:
:
-against:
:
NEW YORK STATE UNIFIED COURT
:
SYSTEM OFFICE OF COURT
:
ADMINISTRATION, JOSEPH ACCETTA,
:
individually and as Chief Clerk of the
:
Westchester County Surrogate’s Court,
:
JOHANNA O’BRIEN, individually and as
:
Deputy Chief Clerk of the Westchester County :
Surrogate’s Court, SUSAN NEWMAN LOEHR,
:
individually and as Commissioner of Jurors of :
Westchester County,
:
:
Defendants. :
:
---------------------------------------------------------- X

9/30/2017

16-CV-2061 (VSB)
MEMORANDUM & OPINION

Appearances:
Sandra D. Parker
Law Office of Sandra D. Parker
New York, New York
Counsel for Plaintiff
Michael A. Berg
for Eric T. Schneiderman
Attorney General of the State of New York
New York, New York
Counsel for Defendants Joseph Accetta, Johanna O’Brien, and Susan Newman Loehr
VERNON S. BRODERICK, United States District Judge:
Plaintiff Shannon Williams, an African-American male and former clerical employee,
brings claims of race and gender discrimination, retaliation, and hostile work environment
against his former employer, the New York Unified Court System Office of Court

Administration (“OCA”), Joseph Accetta, Johanna O’Brien, and Susan Newman Loehr in their
individual and official capacities (the “Individual Defendants,” and collectively with OCA,
“Defendants”). Specifically, Plaintiff asserts: (1) a claim against OCA for racial discrimination,
retaliation, and hostile work environment, in violation of 42 U.S.C. § 2000e et seq. (“Title VII”)
(“Count I”); (2) a claim against the Individual Defendants in their official capacities for
deprivations of equal protection and the right to make and enforce contracts on the basis of race,
in violation of 42 U.S.C. § 1981 and § 1983 (“Count II”); (3) a claim against the Individual
Defendants in their individual capacities for deprivation of equal protection on the basis of race,
in violation of § 1983 (“Count III”); and (4) a claim against the Individual Defendants in their
individual capacities for disparate treatment on the basis of race and gender, in violation of New
York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”) (“Count IV”). The
Individual Defendants move to dismiss (1) Count II for lack of subject matter jurisdiction; (2)
Counts II,1 III, and IV for failure to state a claim of (a) discrimination against any of the
Individual Defendants based on Plaintiff’s suspension and termination, and also against
Defendant O’Brien based on the decision to place Plaintiff on probation, (b) a hostile work
environment, and (c) retaliation (i) against the Individual Defendants based upon general
allegations against “Defendants” and Plaintiff’s suspension and termination, and (ii) against
Defendant O’Brien based on the decision to place Plaintiff on probation; and (3) Count IV to the
extent it alleges discrimination based on sex. For the reasons stated herein, the Individual
Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART.

1

Defendants move to dismiss Count II for failure to state a claim on which relief can be granted in the alternative
should I deny their motion to dismiss that Count for lack of subject matter jurisdiction.

2

Factual Background2
Plaintiff is an African American male who began working for OCA in about August 2000
as a Court Office Assistant assigned to the Westchester Court Surrogate’s Court (“Surrogate’s
Court”). (SAC 6, ¶ 37.)3 During his fourteen years of employment, Plaintiff performed his
duties satisfactorily. (Id. at 7, ¶ 38.) Approximately four years after beginning his employment,
Williams earned the position of Senior Court Office Assistant. (Id. at 7, ¶ 39.) In about March
2007, Plaintiff earned the position of Senior Surrogate’s Court Clerk. (Id. at 7, ¶ 40.) His duties
in that capacity included supervising other employees assigned to work in the Clerk’s Office of
the Surrogate’s Court. (Id. at 7, ¶ 41.)
Defendant Accetta, a Caucasian male, was the Chief Clerk of the Surrogate’s Court. (Id.
at 2–3, ¶ 11.) His duties included the management and supervision of employees working in the
Surrogate’s Court, including the supervision of Plaintiff and Defendants O’Brien and Loehr, as
well as subordinates who reported to Plaintiff. (Id. at 3, ¶ 12.) Defendant O’Brien, a Caucasian
female, was the Deputy Chief Clerk of the Surrogate’s Court. (Id. at 3, ¶ 13.) Her duties
included the management and supervision of employees at the Surrogate’s Court, including
Plaintiff and the subordinates who reported to Plaintiff. (Id. at 3, ¶ 14.) Defendant Loehr, a
Caucasian female, was the Commissioner of Jurors of Westchester County. (Id. at 3, ¶ 15.)
Defendant Loehr did not supervise Plaintiff at any point during his employment. (Id. at 3, ¶ 16.)

2

The following factual summary is drawn from the allegations of the second amended complaint, which I assume to
be true for purposes of this motion. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).
My references to these allegations should not be construed as a finding as to their veracity, and I make no such
findings. I also consider the declarations attached to the Individual Defendants’ motion to dismiss for lack of
subject matter jurisdiction based upon their argument that certain claims are barred by the Eleventh Amendment.
See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“In resolving a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.”).
3
“SAC” refers to Plaintiff’s second amended complaint filed on December 13, 2016. (Doc. 33.) The citations in
this Order to the second amended complaint refer both to the numbered paragraph and the page number for clarity.

3

Plaintiff was “one of the very few non-Caucasian and male non-Caucasian employees
who had supervisory responsibilities over Caucasian employees” working in the Surrogate’s
Court. (Id. at 7, ¶ 42.) Williams alleges that his Caucasian subordinates “openly challenged his
authority, disregarded his directives, and expressed dissatisfaction to management,” which
included Defendants O’Brien and Accetta. (Id. at 7, ¶ 43.) His subordinates also “openly
questioned Williams’s competence, and attempted to dictate how Williams should execute his
duties,” but did not subject Caucasian supervisory personnel to the same treatment. (Id. at 7–8,
¶¶ 45–46.) Defendants O’Brien and Accetta encouraged this insubordinate conduct and “were
receptive to the numerous challenges” to Plaintiff’s authority by the subordinates. (Id. at 7,
¶ 44.)
Williams complained to Accetta, O’Brien, and others about this treatment. (Id. at 8,
¶ 47.) Rather than remedy the situation, Defendants “subject[ed Williams’s] performance to
punitive scrutiny and criticism” by “repeatedly trying to take disciplinary action against Williams
based on the bogus complaints lodged by his subordinates.” (Id. at 8, ¶¶ 48–49.) During
meetings with Williams about the complaints made by his subordinates, Defendants allegedly
“reprimanded Williams” and “attempted to force Williams to relinquish or reduce his authority
over said Caucasian subordinates.” (Id. at 8, ¶ 51.) When Defendant O’Brien did so, Williams
then complained to Defendant Accetta about what had happened, and Accetta took no action in
response. (Id. at 9, ¶¶ 53–54.) Instead, in alleged retaliation, Defendant Accetta assigned
Defendant O’Brien to conduct Williams’s performance review despite the fact that O’Brien
lacked knowledge of Williams’s performance of his duties to conduct such a review. (Id. at 9,
¶ 54.) Defendant O’Brien rated Williams’s performance as poor, (id. at 9, ¶ 55), and when
Plaintiff complained about O’Brien’s unfair review to Defendant Accetta, Accetta did nothing in

4

response, (id. at 9, ¶ 57).
Other alleged discriminatory and retaliatory acts included (1) Defendant Accetta calling
Williams at his home and falsely accusing him of being absent without leave despite the fact that
Defendant Accetta had previously approved of the time off, and (2) Defendant O’Brien denying
Williams’s request to attend an in-house interview for a promotional position, despite “routinely
grant[ing] such requests when made by Caucasian employees.” (Id. at 10, ¶¶ 59, 60.)
Other male non-Caucasian employees were subjected to similar treatment. (Id. at 10,
¶¶ 59–61.) In about 2011, Defendant Accetta, Defendant O’Brien, and other Caucasian
employees, assigned Williams and another non-Caucasian male additional duties above and
beyond their regular assignments without imposing additional responsibilities on the Caucasian
employees. (Id. at 10–11, ¶¶ 62, 63.)
Defendants have also taken punitive disciplinary measures against Williams while
“ignoring or dismissing the misconduct of Caucasian employees.” (Id. at 11, ¶ 65.) This
included suspending Williams “in connection with an unconstitutional stop and frisk incident.”
(Id. at 11, ¶ 66.) Even though Defendants knew that the stop and frisk was unconstitutional and
that the charges associated with it were dismissed, on about July 2013, Defendants suspended
Williams for ten days (the “July 2013 Suspension”). (Id. at 11, ¶¶ 67, 68.) Defendants did not
take similar action against a female Caucasian employee who was arrested and charged with
theft of property. (Id. at 12, ¶¶ 70, 71.) Defendants also ignored the misconduct of Caucasian
employees, while taking punitive disciplinary measures against non-Caucasian employees for
“trumped up infractions” or the slight deviations from established code of conduct. (Id. at 12, ¶
72.) Similarly, Caucasian employees who exhibited poor work performance were not subject to
disciplinary measures like the non-Caucasian employees. (Id. at 12–13, ¶¶ 75–78.) Specifically,

5

Defendants “routinely ignored the misconduct of Caucasian employees,” including two female
Caucasian employees, Amy Carvelli-Thompson and Maryann Dirruso. (Id.) According to
Williams, Defendant O’Brien personally witnessed Dirruso “berate and use profane language
during her interaction with a customer,” yet Defendant O’Brien “took no disciplinary action
against Dirruso for her misconduct.” (Id. at 13, ¶ 78.)
On another occasion, Defendant Accetta instituted disciplinary charges against Williams
after Defendant Loehr accused Williams of being insubordinate towards her during a January 24,
2014 meeting, despite the fact that Defendant Loehr was not Williams’s supervisor and
Defendant Accetta allegedly knew the accusation was false. (Id. at 3, ¶¶ 15–16; 13–14, ¶¶ 80–
82.) As a result of this disciplinary charge, Williams was placed on probation for one year. (Id.
at 14, ¶ 83.)
Defendants terminated Williams’s employment on June 9, 2015 (the “June 2015
Termination”), citing Williams’s alleged violation of the time and attendance rules. (Id. at 15,
¶¶ 89–90.) However, Caucasian employees had routinely violated the time and attendance rules
without being subject to such disciplinary action, and none of the Caucasian employees “faced
the severe sanction of summary termination of their employment.” (Id. at 15, ¶¶ 92–93.)
Procedural History
Plaintiff initiated this action by filing a complaint against OCA and the Individual
Defendants on March 21, 2016. (Doc. 1.) On May 3, 2016, Plaintiff filed his first amended
complaint. (Doc. 5.) On July 1, 2016, OCA filed its answer to the first amended complaint,
(Doc. 11.) On the same day, the Individual Defendants filed a letter requesting a pre-motion
conference to discuss the Individual Defendants’ anticipated motion to dismiss the first amended
complaint, (Doc. 12), and Plaintiff filed his response letter on July 11, 2016, (Doc. 17). The

6

parties appeared before me for a pre-motion conference on July 27, 2016. (Doc. 15.) At the premotion conference, I ordered that a mediation session scheduled for September 9, 2016 go
forward as planned, and the parties agreed to a briefing schedule to commence after September
9, 2016. (Doc. 19.) After mediation was unsuccessful in resolving any issue in the case, (Doc.
18), the Individual Defendants filed a motion to dismiss the first amended complaint on
September 28, 2016, (Doc. 21).
On December 6, 2016, in lieu of filing his opposition, Plaintiff cross-moved to file a
second amended complaint, which sought to eliminate all claims under § 1981 and the New York
City Human Rights Law. (Docs. 28–30.) By order dated December 12, 2016, I granted
Plaintiff’s cross-motion for leave to amend, and denied Defendants’ motion to dismiss the first
amended complaint as moot with permission to re-file. (Doc. 32.) I further ordered that the
parties meet and confer about the possibility of proceeding with discovery while any anticipated
motion to dismiss was pending, and requested that they provide me with a proposed case
management plan or inform me of any disagreements by December 23, 2016. (Id.) On
December 13, 2016, Plaintiff filed his second amended complaint (“Second Amended
Complaint”). (Doc. 33.)
After a number of disputes regarding discovery arose, (see Docs. 34–39), the parties were
directed to appear before me on February 8, 2017 to discuss discovery, (Doc. 39). On January
13, 2017, the Individual Defendants filed the instant motion to partially dismiss the Second
Amended Complaint and accompanying memorandum of law. (Docs. 40–41.) Plaintiff filed his
opposition on February 10, 2017, (Doc. 47), and Defendants filed their reply on February 24,
2017, (Doc. 48). The parties appeared before me on February 8, 2017 to discuss the discovery
disputes, and discovery with respect to the Individual Defendants was stayed pending the

7

resolution of the instant motion.
Legal Standard
Federal Rule of Civil Procedure 12(b)(1)
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova,
201 F.3d at 113. If challenged, a plaintiff is required to show that subject matter jurisdiction
exists by a preponderance of the evidence, id., and in analyzing such a challenge “the district
court must take all uncontroverted facts in the complaint . . . as true, and draw all reasonable
inferences in favor of the party asserting jurisdiction,” Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, “jurisdiction must be shown
affirmatively, and that showing is not made by drawing from the pleadings inferences favorable
to the party asserting it.” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir.
2008) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)). Furthermore, “[i]n resolving
a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court
may consider evidence outside the pleadings.” Id.
Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim will have “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. This standard demands “more than a sheer possibility
that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations:

8

the full factual picture presented by the complaint, the particular cause of action and its elements,
and the existence of alternative explanations so obvious that they render plaintiff’s inferences
unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011). A
complaint need not make “detailed factual allegations,” but it must contain more than mere
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal,
556 U.S. at 678 (internal quotation marks omitted). Although all allegations contained in the
complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id. In the
employment discrimination context, this pleading standard applies in conjunction with the
employment discrimination pleading standards described below. See Drew v. Plaza Constr.
Corp., 688 F. Supp. 2d 270, 275 (S.D.N.Y. 2010).
Discussion
Sovereign Immunity
Count II of the Second Amended Complaint asserts claims against the Individual
Defendants in their official capacities. (SAC 17–18, ¶¶ 100–05.) The Individual Defendants
argue that I lack jurisdiction over the claims brought against them in their official capacity
because they are barred by the state’s sovereign immunity.
1. Applicable Law
The Eleventh Amendment provides that “[t]he judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
U.S. Const. amend. XI. The Eleventh Amendment has been interpreted to “bar federal suits
against state governments by a state’s own citizens,” and “applies unless a state affirmatively
waives its immunity.” Morales v. New York, 22 F. Supp. 3d 256, 267 (S.D.N.Y. 2014) (citations

9

omitted). “[S]overeign immunity extends to claims against state officials for acts committed in
their official capacities.” Blige v. City Univ. of N.Y., No. 15 Civ. 08873 (GBD) (KHP), 2017 WL
1064716, at *2 (S.D.N.Y. Mar. 21, 2017). “A claim that is barred by a state’s sovereign
immunity must be dismissed pursuant to the Eleventh Amendment for lack of subject matter
jurisdiction.” Morales, 22 F. Supp. 3d at 268.
Under the doctrine of Ex parte Young, plaintiff may, however, “sue a state official acting
in his official capacity—notwithstanding the Eleventh Amendment—for ‘prospective injunctive
relief’ from violations of federal law.” In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.
2007). “Whether a litigant’s claim falls under the Ex parte Young exception to the Eleventh
Amendment’s bar against suing a state is a ‘straightforward inquiry’ that asks “whether the
complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.’” In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372 (2d Cir. 2005)
(quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)).
2. Application
The State of New York has not waived immunity and to the extent the Second Amended
Complaint seeks monetary damages on Count II, it is barred by the Eleventh Amendment and
must be dismissed. See Dean v. Univ. at Buffalo Sch. Of Med. & Biomedical Sciences, 804 F.3d
178, 193 (2d Cir. 2015) (“The Eleventh Amendment bars a damages action in federal court
against a state and its officials when acting in their official capacity unless the state has waived
its sovereign immunity or Congress has abrogated it.”). Similarly, to the extent the Second
Amended Complaint seeks a “declaration that the acts and practices complained of” in the
Second Amended Complaint are in violation of federal law, (SAC 19, ¶ 1), it must also be
dismissed because it relates to past violations and as such is barred by the Eleventh Amendment,

10

see Green v. Mansour, 474 U.S. 64, 73 (1985).
As relief for the alleged violations in Count II, Plaintiff also seeks to be reinstated to his
previous position at OCA. The Individual Defendants claim that none of them are in a position
to reinstate Williams to his former position, and have signed declarations attesting to that fact.
(See Defs.’ Mem. 3–4; O’Brien Decl. ¶ 6; Loehr Decl. ¶¶ 7–8; Accetta Decl. ¶¶ 6–9.)4 Plaintiff
does not contest the fact that the Individual Defendants have no authority to reinstate him to his
prior position, and thus cannot provide the relief he seeks. (Pl.’s Mem. 14.)5 Instead, he argues
that he seeks prospective relief in the form of an injunction barring the Individual Defendants
from future discriminatory conduct. (Id. at 14–15.) However, because Plaintiff no longer works
for OCA, and none of the Individual Defendants are alleged to be involved in ongoing violation
of federal law, there is no prospective relief available, and the Eleventh Amendment thus bars
Plaintiff’s claims against the Individual Defendants in their official capacities. Therefore, the
Individual Defendants’ motion to dismiss Plaintiff’s claims brought against them in their official
capacity is granted, and Count II is dismissed.
Hostile Work Environment Claims
Count I of the Second Amended Complaint asserts a claim for hostile work environment
(SAC 16, ¶ 95.)6 The Individual Defendants seek dismissal of Plaintiff’s hostile work

4
“Defs.’ Mem.” refers to Memorandum of Law in Support of the Individual State Defendants’ Motion for Partial
Dismissal of the Second Amended Complaint. (Doc. 41.) “O’Brien Decl.” refers to the Declaration of Johanna
O’Brien in Support of Defendants’ Motion for Partial Dismissal dated January 11, 2017. (Doc. 43.) “Loehr Decl.”
refers to the Declaration of Susan Newman Loehr in Support of Defendants’ Motion for Partial Dismissal dated
January 11, 2017. (Doc. 44.) “Accetta Decl.” refers to the Declaration of Joseph M. Accetta in Support of
Defendants’ Motion for Partial Dismissal dated January 11, 2017. (Doc. 42.)
5

“Pl.’s Mem.” refers to Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion. (Doc. 47.)

6
Count I of the Second Amended Complaint asserts that “Defendant OCA” forced Plaintiff “to work in a hostile
environment.” (SAC 16, ¶ 95.) Plaintiff argues that a review of the foregoing paragraphs in the Second Amended
Complaint makes clear that Williams also asserts his hostile work environment claim against the Individual
Defendants. (Pl.’s Mem. 2.) Plaintiff addressed this issue in his opposition, but the Individual Defendants failed
address the issue in their reply and thus may have abandoned this argument. See Persh v. Petersen, No. 15-CV-141,
2015 WL 5326173, at *6 (S.D.N.Y. Sept. 14, 2015) (“Plaintiff responded to Defendant’s service argument, but

11

environment claim, as against the Individual Defendants, for failure to state a claim.
1. Applicable Law
To state a claim for hostile work environment under Title VII, “a plaintiff must show that
‘the 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.’” Littlejohn v. City of New York, 795 F.3d 297, 320–21 (2d Cir.
2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “This standard has both
objective and subjective components: the conduct complained of must be severe or pervasive
enough that a reasonable person would find it hostile or abusive, and the victim must
subjectively perceive the work environment to be abusive.” Id. at 321 (quoting Raspardo v.
Carlone, 770 F.3d 97, 114 (2d Cir. 2016)); see also Bermudez v. City of New York, 783 F. Supp.
2d 560, 579 (S.D.N.Y. 2011) (“Hostile work environment claims are meant to protect individuals
from abuse and trauma that is severe.” (citation omitted)). Plaintiff must allege that the incidents
were “more than episodic; they must be sufficiently continuous and concerted in order to be
deemed pervasive.” Littlejohn, 795 F.3d at 321 (quoting Raspardo, 770 F.3d at 114). I consider
the totality of the circumstances in evaluating a hostile work environment claim, including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Harris, 510 U.S at 23.
A plaintiff must also plausibly allege “that the hostile work environment was caused by
animus towards [him] as a result of [his] membership in a protected class.” Bermudez, 783 F.

Defendant did not mention service at all in his reply brief, and therefore may have abandoned it.”). Since OCA
cannot be liable except through the actions of its employees, I will address the merits of the argument.

12

Supp. 2d at 578. “[I]t is ‘axiomatic that mistreatment at work, whether through subjection to a
hostile environment or through other means, is actionable . . . only when it occurs because of an
employee’s protected characteristic,’ such as race or gender.” Lloyd v. Holder, No. 11 Civ.
3154(AT), 2013 WL 6667531, at *11 (S.D.N.Y. Dec. 17, 2013) (quoting Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001)); see also Rogers v. Fashion Inst. of Tech., No. 14 Civ. 6420
(AT) 2016 WL 889590, at *8 (S.D.N.Y. Feb. 26, 2016) (“Plaintiff must plausibly allege a basis
to infer that Defendants took these unfavorable actions against him because of his race.”).
2. Application
The Second Amended Complaint alleges that Plaintiff’s subordinates “openly
challenged” his authority, disregarded his directives, and complained to management, who,
instead of remedying the situation, reprimanded Plaintiff and tried to convince him to relinquish
his supervisory authority. Plaintiff also alleges that he was unjustly subjected to poor
performance reviews and was given additional duties above and beyond his regular assignments.
Even assuming that this conduct was motivated by discriminatory animus, these allegations do
not support a finding of a hostile work environment that is “so severe or pervasive as to have
altered the conditions of [Plaintiff’s] environment.” Littlejohn, 795 F.3d at 321 (affirming
dismissal of hostile work environment claim where employer made negative statements about
plaintiff, was impatient and used harsh tones with plaintiff, distanced herself and declined to
meet with plaintiff, required plaintiff to recreate work, wrongfully reprimanded plaintiff,
increased plaintiff’s schedule, and was sarcastic to plaintiff); Fleming v. MaxMara USA, Inc.,
371 F. App’x 115, 119 (2d Cir. 2010) (summary order) (affirming dismissal of hostile work
environment claim where defendants excluded plaintiff from meetings, excessively criticized her
work, refused to answer her work-related questions, imposed additional duties on her, and threw

13

books and sent rude emails to her); Trachtenberg v. Dep’t of Educ. of N.Y., 937 F. Supp. 2d 460,
472–73 (S.D.N.Y. 2013) (dismissing hostile work environment claim where plaintiff alleged
that, on account of her age, she was subjected to excessive scrutiny, negative performance
evaluations, a lack of training opportunities, and a poorly ventilated office); Davis-Molinia v.
Port Auth. of N.Y. & N.J., No. 08 CV 7586(GBD), 2011 WL 4000997, at *11 (S.D.N.Y. Aug. 19,
2011) (finding no hostile work environment where plaintiff was excluded from meetings,
deliberately avoided, yelled at, and talked down to), aff’d, 488 F. App’x 530 (2d Cir. 2012).
The cases Plaintiff cites in support of his argument are materially distinguishable. See
Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) (plaintiff alleged hostile work environment
where she regularly observed supervisor watching and handling pornographic videos, and
discovered pornographic material on her workplace computer); Drew, 688 F. Supp. 2d at 280
(plaintiff alleged hostile work environment where supervisor was harsh and critical, made
unreasonable demands, often raised his voice at and directed profanity towards plaintiff, told
plaintiff he was permitted to curse at him as plaintiff’s boss, and treated Caucasian employees
much more favorably). Therefore, the Individual Defendants’ motion to dismiss Plaintiff’s
hostile work environment claim under Title VII7 against the Individual Defendants is granted,
and the claim is dismissed.
Retaliation Claims
Counts I, III and IV of the Second Amended Complaint assert retaliation claims under
Title VII, § 1983, and the NYSHRL.8 (SAC 16, ¶ 95; 18, ¶ 108; 19 ¶ 114.) The Individual

7

While Count I only asserts a hostile environment claim under Title VII, I note that Plaintiff’s hostile work
environment would fail for the same reasons under § 1983 and the NYSHRL. See Littlejohn, 795 F.3d at 320–21
(explaining that the same standards apply under Title VII, § 1981, or § 1983); Lenart v. Coach Inc., 131 F. Supp. 3d
61, 66 (S.D.N.Y. 2015) (applying same standard under the NYSHRL).
8

Count I of the Second Amended Complaint asserts that “Defendant OCA . . . retaliated against Williams for
complaining of Defendant’s discriminatory conduct.” (SAC 16, ¶ 95.) Plaintiff argues that a review of the

14

Defendants seek dismissal, in substantial part, of Plaintiff’s retaliation claims. (See Defs.’ Mem.
18–21.) In addition to arguing that the Individual Defendants were not personally involved in
certain retaliatory actions, (see infra Section III.D), the Individual Defendants argue that
Plaintiff’s retaliation claims against Defendants Accetta and O’Brien should be dismissed
because Williams fails to plead the requisite adverse employment action.
1. Applicable Law
To state a claim for retaliation, a plaintiff must plausibly allege “(1) defendants
discriminated—or took an adverse employment action—against him, (2) because he has opposed
any unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90
(2d Cir. 2015) (internal quotation marks omitted). An adverse employment action in the context
of a retaliation claim “covers a broader range of conduct than does the adverse-action standard
for claims of discrimination under Title VII” and “is not limited to discriminatory actions that
affect the terms and conditions of employment.” Id. (citation omitted). A plaintiff must also
plausibly plead “a connection between the act and his engagement in protected activity.” Id. “A
retaliatory purpose can be shown indirectly by timing: protected activity followed closely in time
by adverse employment action.” Id. Further, “for an adverse retaliatory action to be ‘because’ a
plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’
cause of the employer’s adverse action.” Id. “[T]he elements of a retaliation claim based on an
equal protection violation under § 1983 mirror those under Title VII,” id. at 91, as do claims
under the NYSHRL, see McMenemy v. City of Rochester, 241 F.3d 279, 283 n.1 (2d Cir. 2001).

foregoing paragraphs in the Second Amended Complaint makes clear that Williams also asserts his retaliation claim
against the Individual Defendants. (Pl.’s Mem. 2.) As noted above, Plaintiff addressed this issue in his opposition,
but the Individual Defendants failed address the issue in their reply and thus may have abandoned this argument.
See Persh, 2015 WL 5326173, at *6 (“Plaintiff responded to Defendant’s service argument, but Defendant did not
mention service at all in his reply brief, and therefore may have abandoned it.”). Since OCA cannot be liable except
through the actions of its employees, I will address the merits of the argument.

15

2. Application
Here, the Second Amended Complaint states that Plaintiff complained about
discriminatory treatment by his subordinates to Defendants Accetta and O’Brien, (SAC 8, ¶ 47),
who then took no remedial action and instead subjected Plaintiff to additional scrutiny and
criticism, including calling Plaintiff in for meetings, reprimanding him, and attempting to force
him to relinquish supervisory authority, (id. at 8, ¶¶ 47–51). The Second Amended Complaint
further alleges that when Plaintiff complained to Defendant Accetta about Defendant O’Brien’s
discriminatory treatment, (id. at 9, ¶ 53), Defendant Accetta took no remedial action and instead
assigned Defendant O’Brien to conduct Plaintiff’s performance review, (id. at 9, ¶ 54). Plaintiff
also alleges that Defendant Accetta falsely accused Plaintiff of being absent without leave
despite previously approving the time off, (id. at 10, ¶ 59), and that Defendant O’Brien denied
Plaintiff the opportunity to interview for a promotional position, (id. at 10, ¶ 60). These actions
are sufficient to plead adverse employment actions, as they “could well dissuade a reasonable
worker from making or supporting a charge of discrimination.” Vega, 801 F.3d at 90 (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). Therefore, the Individual
Defendants’ motion to dismiss Plaintiff’s retaliation claims under § 1983 and the NYSHRL
against Defendants Accetta and O’Brien for failure to plead the requisite adverse employment
action is denied.
Individual Defendants’ Personal Involvement
Counts II, III, and IV allege discrimination, hostile work environment, and retaliation
claims under § 1983 and the NYSHRL. The Individual Defendants seek dismissal of Counts II,
III, and IV against the Individual Defendants to the extent they allege claims based on the July
2013 Suspension and June 2015 Termination, and against Defendant O’Brien to the extent they

16

allege claims based on the decision to place Plaintiff on probation. Specifically, the Individual
Defendants argue that the Second Amended Complaint does not allege that (1) the Individual
Defendants were personally involved in the July 2013 Suspension; (2) the Individual Defendants
were personally involved in the June 2015 Termination; and (3) Defendant O’Brien was
personally involved in Plaintiff being placed on probation as a result of his alleged conduct
during the January 24, 2014 meeting. (Defs.’ Mem. 13–16.)
1. Applicable Law
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013).
Personal involvement can be established by showing that: “(1) the
defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom
under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the defendant was grossly
negligent in supervising subordinates who committed the wrongful acts, or
(5) the defendant exhibited deliberate indifference . . . by failing to act on
information indicating that unconstitutional acts were occurring.”
Littlejohn, 795 F.3d at 314 (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365
F.3d 107, 127 (2d Cir. 2004)). A plaintiff “must also establish that the supervisor’s actions were
the proximate cause of the plaintiff’s constitutional deprivation. Finally, as with individual
liability, in the § 1983 context, a plaintiff must establish that a supervisor’s behavior constituted
intentional discrimination on the basis of a protected characteristic.” Raspardo, 770 F.3d at 116
(citations omitted). Likewise, a claim under NYSHRL must allege each defendant’s “actual
participat[ion].” See Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004).

17

2. Application
First, because I find that the Second Amended Complaint fails to state a hostile work
environment claim, (supra Section III.B), I need not decide whether the Individual Defendants
were personally involved in that conduct.
Second, I agree with Defendants that the Second Amended Complaint fails to allege how
any of the Individual Defendants were involved in the July 2013 Suspension following the
“unconstitutional stop and frisk.” (Defs.’ Mem. 15.) The Second Amended Complaint attributes
Plaintiff’s suspension to “Defendants” generally, without specifying which if any Individual
Defendants were involved. (SAC 11, ¶¶ 66–68.) Therefore, the discrimination and retaliation
claims under § 1983 and the NYSHRL stemming from the July 2013 Suspension are dismissed
as to the Individual Defendants.
Third, I agree with Defendants that the Second Amended Complaint fails to allege how
Defendant O’Brien was involved in the decision to place Plaintiff on probation following the
January 24, 2014 meeting. (Defs.’ Mem. 15.)9 The Second Amended Complaint states only that
Defendant Loehr made false allegations against Plaintiff and that Defendant Accetta was both at
the meeting and involved in the decision to institute disciplinary charges. There is no allegation
that Defendant O’Brien was even at the meeting or involved with the decision to bring
disciplinary charges. Therefore, the discrimination and retaliation claims under § 1983 and the
NYSHRL stemming from the decision to place Plaintiff on probation are dismissed as to
Defendant O’Brien.

9
Defendants Accetta and Loehr do not move to dismiss for failure to allege their personal involvement in the
probation decision. (Defs.’ Mem. 15 n.4.)

18

Fourth, I reject Defendants’ argument that none of the Individual Defendants were
involved in the June 2015 Termination. Because the Second Amended Complaint alleges that
Plaintiff’s termination stemmed from Plaintiff being placed on probation, (SAC 15, ¶ 89 (“In
further discrimination and retaliation against Williams, Defendants used his now converted
probationary status to take additional punitive measures against Williams and terminate his
employment on or about June 9, 2015.”)), which was allegedly due to the involvement of
Defendants Accetta and Loehr, the Second Amended Complaint states a plausible claim that
those Defendants were also personally involved in the June 2015 Termination. Therefore, the
discrimination and retaliation claims under § 1983 and the NYSHRL stemming from the
decision to terminate Plaintiff’s employment are dismissed as to only Defendant O’Brien.
Fifth, because the Second Amended Complaint does not allege that Plaintiff complained
to Defendant Loehr about his concerns about discrimination or state that she somehow became
aware of his concerns, it does not state a claim of retaliation under § 1983 and the NYSHRL
against her. The Second Amended Complaint alleges only that Plaintiff reported his concerns
about discrimination in the workplace to Defendants Accetta and O’Brien. Therefore, the
retaliation claims under § 1983 and the NYSHRL against Defendant Loehr are dismissed.
Accordingly, for the reasons stated above, (1) the discrimination and retaliation claims
under § 1983 and the NYSHRL stemming from the July 2013 Suspension are dismissed as to the
Individual Defendants; (2) the discrimination and retaliation claims under § 1983 and the
NYSHRL stemming from the decision to place Plaintiff on probation are dismissed as to
Defendant O’Brien; (3) the discrimination and retaliation claims under § 1983 and the NYSHRL
stemming from the June 2015 Termination are dismissed as to Defendant O’Brien; and (4) the
retaliation claims under § 1983 and the NYSHRL against Defendant Loehr are dismissed.

19

Sex Discrimination Claims
Count IV of the Second Amended Complaint asserts discrimination claims based on sex
and race under the NYSHRL. (SAC 19 ¶ 114.) Specifically, Plaintiff alleges disparate treatment
on the basis of sex and race by the Individual Defendants. (Id. at 19, ¶¶ 113–15.) In the instant
motion, the Individual Defendants seek to dismiss Count IV to the extent it states a sex
discrimination claim. (See Defs.’ Mem. 21–22.)
1. Applicable Law
Discrimination claims brought under the NYSHRL are governed by the same standards
as discrimination claims brought under Title VII. See Fowler v. Scores Holding Co., Inc., 677 F.
Supp. 2d 673, 681–82 (S.D.N.Y. 2009) (“New York courts require the same showing for claims
brought under the NYSHRL as federal employment discrimination claims brought under Title
VII . . . .”). To state a claim for discrimination under the NYSHRL, the “plaintiff must initially
establish a prima facie case of discrimination by showing that (1) he is a member of a protected
class; (2) he is qualified for his position; (3) he suffered an adverse employment action; and (4)
the circumstances give rise to an inference of discrimination.” Green v. Jacob & Co. Watches,
Inc., No. 15 Civ. 3611 (PAC), 2017 WL 1208596, at *5 (S.D.N.Y. Mar. 31, 2017) (quoting
Vega, 801 F.3d at 83).
“A plaintiff sustains an adverse employment action if he or she endures a ‘materially
adverse change’ in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000); see also Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)
(“An ‘adverse employment action’ is one which is more disruptive than a mere inconvenience or
an alteration of job responsibilities.” (quoting Galabya, 202 F.3d at 640)). This can include
“termination of employment, a demotion evidenced by a decrease in wage or salary, a less

20

distinguished title, a material loss of benefits, significantly diminished material responsibilities,”
or “a disproportionately heavy workload.” Vega, 801 F.3d at 85 (citations omitted).
At the motion to dismiss stage, “allegation of facts supporting a minimal plausible
inference of discriminatory intent suffices as to this element of the claim.” Doe v. Columbia
Univ., 831 F.3d 46, 55 (2d Cir. 2016). This is a “low bar” and includes, but is not limited to “the
employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious
comments about others in the employee’s protected group; or the more favorable treatment of
employees not in the protected group; or the sequence of events leading to the plaintiff’s
discharge.” Lewis v. Roosevelt Island Operating Corp., No. 17-cv-03071 (ALC) (SN), 2017 WL
1169647, at *5 (S.D.N.Y. Mar. 28, 2017) (quoting Littlejohn, 795 F.3d at 312); see also Crawley
v. Macy’s Retail Holdings, Inc., No. 15 Civ. 2228 (KPF), 2016 WL 6993777, at *7 (S.D.N.Y.
Nov. 29, 2016) (noting that, at the motion to dismiss stage, a plaintiff need only “give plausible
support to a minimal inference of discriminatory motivation” (quoting Littlejohn, 795 F.3d at
111)).
Where a plaintiff relies on the disparate treatment to support his discrimination claim, he
must allege that “[he] was similarly situated in all material respects to the individuals with whom
[he] seeks to compare herself.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)
(quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)); see also Crawley, 2016
WL 6993777, at *7 (dismissing sex discrimination claim under Title VII and the NYSHRL
because plaintiff failed to allege that she and her comparator were “similarly situated in all
material respects”). While the plaintiff’s and the comparator’s circumstances “must bear a
‘reasonably close resemblance,’” they “need not be ‘identical.’” Brown, 756 F.3d at 230
(quoting Graham, 230 F.3d at 40). “In the context of employee discipline[,] the plaintiff and the

21

similarly situated employee must have engaged in comparable conduct, that is, conduct of
comparable seriousness.” Shein v. New York City Dep’t of Educ., No. 15cv4236 (DLC), 2016
WL 676458, at *5 (S.D.N.Y. Feb. 18, 2016) (quoting Raspardo, 770 F.3d at 126). In addition,
“[e]mployees may be similarly situated . . . if they are ‘subject to the same standards governing
performance evaluation and discipline.’” Brown, 756 F.3d at 230 (quoting Norville v. Staten
Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999)).
2. Application
As an initial matter, the Individual Defendants do not argue that Plaintiff is a member of
a protected class, is qualified for his position, and suffered an adverse employment action. The
Individual Defendants instead argue that Plaintiff has failed to plausibly allege an inference of
discrimination. I agree. Assuming the facts in the Second Amended Complaint to be true and
drawing all inferences in Williams’s favor, as I must, there are only two non-conclusory
allegations in the Second Amended Complaint relating to sex discrimination, both of which are
founded on disparate treatment. First, Defendants suspended Plaintiff in July 2013 for his prior
arrest, while “Defendants failed to take any action against a female Caucasian employee who
was arrested and charged with engaging in criminal activity.”10 (SAC 12, ¶¶ 70–71). Second,
Defendants “routinely ignored the misconduct of Caucasian employees,” including two female
Caucasian employees, Amy Carvelli-Thompson and Maryann Dirruso.11 (Id. at 12–13, ¶¶ 75–

10

I note that Plaintiff’s opposition does not point to a single allegation in the Second Amended Complaint that
relates to discrimination based on sex. (See Pl.’s Mem. 10–11.) Instead, Plaintiff’s opposition points only to
allegations relating to discrimination based on race. (See id.) None of these allegations or arguments address
Defendant’s motion to dismiss Count IV for failure to allege a sex discrimination claim.
11

Plaintiff also appears to identify two male Caucasian employees as comparators in this allegation. However,
“[d]ifferent treatment of similarly situated individuals within [Plaintiff’s] same protected class does not create an
inference of discrimination,” Weiss v. La Suisse, 260 F. Supp. 2d 644, 655 (S.D.N.Y. 2003), and the more favorable
treatment of other male employees only undermines Plaintiff’s claim of an inference of discriminatory intent based
on sex, see Henny v. New York, 842 F. Supp. 2d 530, 555 n.24 (S.D.N.Y. 2012) (plaintiff’s argument that she was
treated differently than other members of her protected class undermined any inference that she was terminated

22

78.) Plaintiff further alleges that Defendant O’Brien personally witnessed Dirruso “berate and
use profane language during her interaction with a customer,” yet Defendant O’Brien “took no
disciplinary action against Dirruso for her misconduct.” (Id. at 13, ¶ 78.)
These allegations are insufficient even under the low pleading standard. See Crawley,
2016 WL 6993777, at *7 (dismissing sex discrimination claim under Title VII and the NYSHRL
for failure to state a claim). As explained above, (supra Section III.D), Plaintiff fails to allege
how any of the Individual Defendants were personally involved in the July 2013 Suspension.
Moreover, even if such personal involvement is assumed, Plaintiff fails to allege that he is
“similarly situated in all material aspects” to his comparators with respect to both the July 2013
Suspension and the allegation involving Dirruso’s misconduct involving a customer. See
Crawley, 2016 WL 6993777, at *7. Although Plaintiff identifies his comparators by name and
alleges that they are “employees,” Williams does not allege any facts showing how he was
similarly situated to these employees. For example, Plaintiff does not allege that he was
employed in the same department, subject to the same supervisors, or of a similar experience
level as his comparators. See Yan v. Ziba Mode Inc., No. 15-cv-47 (RJS), 2016 WL 1276456, at
*5 (S.D.N.Y. Mar. 29, 2016) (dismissing disparate treatment claim where plaintiff “fail[ed] to
plead any facts regarding how [plaintiff’s comparators’] identities, experience levels, and
conduct compared to [plaintiff’s]”); Pothen v. Stony Brook Univ., 211 F. Supp. 3d 486, 495
(E.D.N.Y. 2016) (allowing disparate treatment claim where plaintiff identified one comparator
by name and alleged he was subject to the same supervisor). Accordingly, the Individual
Defendants’ motion to dismiss Plaintiff’s sex discrimination claim is granted.

based on discriminatory animus).

23

Conclusion
For the reasons stated here, the Individual Defendants’ motion for partial dismissal, (Doc.
40), is GRANTED IN PART and DENIED IN PART. Count II is dismissed in its entirety.
Counts I, III and IV are dismissed in part, as they fail to state a claim for: (1) hostile work
environment against the Individual Defendants, (2) discrimination and retaliation under § 1983
and the NYSHRL against the Individual Defendants based on Plaintiff’s July 2013 Suspension;
(3) discrimination and retaliation under § 1983 and the NYSHRL against Defendant O’Brien
based on the decision to place Plaintiff on probation; (4) discrimination and retaliation under §
1983 and the NYSHRL against Defendant O’Brien based on the June 2015 Termination; (5)
retaliation under § 1983 and the NYSHRL against Defendant Loehr; and (6) sex discrimination
under the NYSHRL against the Individual Defendants. The parties are instructed to meet and
confer regarding the scheduling of discovery and should submit a proposed case management
plan and scheduling order on or before October 27, 2017. The Clerk of Court is respectfully
directed to terminate the pending motion at Document 40.
SO ORDERED.
Dated: September 30, 2017
New York, New York
______________________
Vernon S. Broderick
United States District Judge

24