Ray v. New York State Insurance Fund et al

Filing 58

MEMORANDUM AND ORDER: granting 50 Motion to Dismiss. The Fund's motion to dismiss is granted in its entirety. Ray's NYSHRL claims are barred by the Eleventh Amendment, her Title VII hostile work environment claim fails because she failed to exhaust her administrative remedies, and her Title VII retaliation claim fails because she not does not plausibly allege that she experienced an adverse employment action because of her engagement in protected activities. To the extent the FAC ca n be interpreted to assert a discrimination claim based on disparate treatment, that claim also fails because the FAC does not raise a plausible inference of discriminatory motive for the one cognizable adverse employment action that it adequately al leges. Ray has previously been afforded an opportunity to amend her complaint in order to cure the alleged deficiencies identified by the Fund's first pre-motion letter, which sought to dismiss Ray's original complaint and raised many of th e deficiencies forming the basis of our decision here. See Order, June 8, 2017, ECF No. 37; Letter from D. Stan O'Laughlin to the Court, June 1, 2017, ECF No. 35. Having had the opportunity to amend once, and having made only cursory amendments that did not meaningfully address the deficiencies identified by the Fund, Ray is "not entitled to an advisory opinion from the Court informing [her] of the [additional] deficiencies in the complaint and then an opportunity to cure those deficie ncies." Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007). Further leave to amend, the scope of which would be significantly limited by Title VII's exhaustion requirement and the statute of limitations, is simply not warrante d at this junction. See Lopez v. CT Partners Exec. Search Inc., 173 F. Supp. 3d 12, 44 (S.D.N.Y. 2016) (Engelmayer, J.) ("[W]here the problems with a claim are 'substantive' rather than the result of an 'inadequately or in artful ly pleaded' complaint, an opportunity to replead would be 'futile' and 'should be denied.'" (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Therefore, Ray's Title VII claims are dismissed with prejudic e. However, because we lack subject matter jurisdiction over Ray's NYSHRL claims, those claims must be dismissed without prejudice. See Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 199 9) ("[W]here a court lacks subject ma tter jurisdiction, it also lacks the power to dismiss with prejudice."). The Clerk of the Court is respectfully directed to terminate the motion pending at docket entry number 50, to enter judgment in the Fund's favor, and to terminate this case. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 7/18/2018) (ama) Modified on 7/19/2018 (ama).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------X
DIEDRE V. RAY,
Plaintiff,
MEMORANDUM AND ORDER
- against 16 Civ. 2895 (NRB)
NEW YORK STATE INSURANCE FUND,
Defendant.
--------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Diedre Ray, an African American woman, sues her
employer, the New York State Insurance Fund (the “Fund”), alleging
that the Fund discriminated and retaliated against her on the basis
of race in violation of Title VII of the Civil Rights Act of 1964
and on the basis of race and disability in violation of the New
York State Human Rights Law (NYSHRL).

For the reasons set forth

below, we dismiss Ray’s complaint in its entirety: her NYSHRL
claims are dismissed for lack of subject matter jurisdiction and
her Title VII claims are dismissed for failure to state a claim.
I.

Background
A.

Factual Allegations 1

Ray is an African American woman who was employed by the Fund
from April 1986 to July 29, 2015, in a “Hearing Representative”

1

These factual allegations are drawn from the operative First Amended
Complaint (FAC), which we must accept as true for purposes of deciding this
motion.

1

capacity within the deposition department for at least part of
this time.
American

FAC ¶¶ 14-15, 31-33, 74. 2

employee

in

her

division

She was the only African

and

department

during

her

employment, FAC ¶¶ 32-33, and none of the management personnel at
the Fund were African American, FAC ¶ 34. These personnel included
three individuals of particular relevance: Scott Rachelson, a Fund
supervisor and Ray’s superior and manager with control over Ray’s
employment,

FAC

¶¶ 17-20,

Lorraine

Mirabella,

another

Fund

supervisor and Ray’s superior and manager with control over her
employment, FAC ¶¶ 21-24, and Joseph Mullen, the Fund’s director
of personnel and also Ray’s superior and manager with control over
her employment, FAC ¶¶ 25-28.
Ray alleges that over the course of her employment, she
experienced numerous instances of poor treatment based on her race.
We recite Ray’s allegations without repeatedly reiterating that
they are allegations at this stage that we must accept as true.
Specifically,

Ray

asserts

that

(1)

“non

African-American

employees” were permitted “to maintain one location, while [she]
would be required to travel to other boroughs,” FAC ¶ 36; (2) that
Caucasian employees were permitted “to leave work early on a
regular

basis”

and

“take

time

off”

whereas

African

American

employees were not, FAC ¶¶ 37-38; and (3) that Mirabella directed

2

The FAC contains no allegations regarding Ray’s job duties as a “hearing
representative.”

2

that other employees email their requests to Ray while other nonAfrican
requests

American
alike

employees

verbally,”

were
FAC

permitted

¶ 39.

As

“to
a

discuss

result

their

of

these

practices, Ray filed a complaint against Mirabella on March 2,
2009.

FAC ¶ 40.

Following this complaint against Mirabella, Ray was subject
to further poor treatment.

At some indeterminate time, Mirabella

threatened that she “would create” complaints against Ray.
¶ 42.

FAC

In 2012, Rachelson yelled at Ray and called her a “nigger,”

which resulted in Ray filing a complaint against him.

FAC ¶ 44.

Further, the Fund refused to provide her with a replacement chair
when her chair broke, even though a white coworker was provided
“with the new equipment promptly” on his request.
on

the

denial

of

her

chair

request,

Ray

FAC ¶ 45.

“complained

Based

to

the

Defendant,” on July 29, 2014, that that white coworker had been
treated more favorably.

FAC ¶ 46.

On October 7, 2014, Ray again

requested “to be treated with the same rights and respect as [her]
white co-workers.”

FAC ¶ 47 (alteration in original).

“On or

about” the next day, October 8, Ray was not permitted to work from
a different office location, though white coworkers were generally
permitted to work from other locations.
about this disparity the same day.

FAC ¶ 50.

Ray complained

FAC ¶ 51.

The next week, on October 14, 2014, Ray and Mirabella had an
altercation following a meeting in Mirabella’s office.
3

Mirabella

demanded that Ray leave, and while Ray was leaving, Mirabella
grabbed Ray’s left arm (which had been in a cast as a result of a
prior injury), pushed Ray, and slammed her office door on Ray’s
left shoulder.

FAC ¶¶ 53-54.

Ray was taken to the hospital by

ambulance and suffered severe emotional distress as a result of
this altercation.

FAC ¶ 55.

Ray again complained to the Fund

about Mirabella, FAC ¶ 56, and filed a police report regarding the
incident the same day, FAC ¶ 57.

One of Ray’s African American

coworkers saw the altercation, but was not acknowledged by the
Fund as a witness.
The

following

FAC ¶ 58.
week,

on

October

22,

2014,

Ray

was

“interrogated” about the October 14 incident “in a small room” by
two Fund employees, Alice Siegel and Jackie Herman, who selectively
recorded parts of this interview.

FAC ¶ 59.

White employees who

had previously (1) had a physical altercation in the workplace,
(2) threatened to bomb the Fund office building, and (3) threatened
a judge were not similarly interrogated.

FAC ¶¶ 60-62.

Ray completed an EEOC intake questionnaire on February 17,
2015. 3

FAC ¶ 63; see Decl. of D. Stan O’Laughlin ex. 1 at 37-40,

ECF No. 51 (“Feb. 2015 EEOC Form”). 4

3

On this form, Ray identified

The complaint relies on the intake questionnaire to plead administrative
exhaustion.
Accordingly, we deem the intake questionnaire integral to the
complaint and will consider the contents of the questionnaire. See DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
4 We note that the attachment of all of “plaintiff’s EEOC filings” as a
single exhibit to the O’Laughlin Declaration, with no delineation of which pages
correspond to what filings made at what time, is less than entirely helpful to
the Court.

4

race,

age,

disability,

discrimination claim.

and

retaliation

as

the

Feb. 2015 EEOC Form at 38.

bases

for

her

She stated that

she was “assaulted by white supervisor Lorrain[e] Mirabel[la]” and
that she was subsequently “interrogated for insubordination by
Alice Siegel.”

Id.

She further stated that Ryan McGrath, her

immediate supervisor, “stood by and did nothing,” and that, even
after she had called the police and had been taken to the hospital,
the Fund “responded by doing nothing to the attacker or future
prevention.”

Id.

Additionally, under the disability section of

the questionnaire, Ray stated that, in July 2014, Ryan McGrath
denied her the “ability to work at my field location whenever
possible,” but had “allowed a white coworker, John Hempel, to do
so.”

Id. at 39.

The end of the form provided two checkboxes and

directed the respondent to “check one of the boxes below to tell
us what you would like us to do with the information you are
providing on this questionnaire.”

Id. at 40.

Box 1 stated in

part that “I want to talk to an EEOC employee before deciding
whether to file a charge.”

Id.

Box 2, which Ray checked, stated

in part that “I want to file a charge of discrimination, and I
authorize the EEOC to look into the discrimination I described
above.”

Id.

5

Ray sent a letter to the EEOC on March 1, 2015, further
describing her claims. 5

FAC ¶ 64; see O’Laughlin Decl. ex. 1 at

44-45 (“Mar. 2015 Letter”).

In the letter, Ray stated that “[she]

was assaulted by a white supervisor” on October 14, 2014, that
“not one staff member tried to stop the attack,” and that she was
“intimidated into an interrogation by Alice Siegel and Jackie
Herman of personnel” afterwards, which she contended was an attempt
“to intimidate [her] and retaliate against [her] for claiming
Racial Discrimination in 7/2014 and retaliation for filing a
complaint against a white supervisor.”

Id. at 44.

On June 29, 2015, the Fund told Ray that she would be
terminated effective July 28, 2015, FAC ¶ 71, and Ray was indeed
terminated on that date, FAC ¶ 74.
termination

resulted

from

her

The Fund contended that Ray’s

having

exhausted

her

worker’s

compensation time, but she, in actuality, had more time available.
FAC ¶¶ 72-73.

On July 28, 2015 -- the same day Ray was terminated

-- the EEOC notified the Fund that it had received a charge of
employment discrimination against the Fund.

FAC ¶ 70.

Ray filed an amended EEOC charge on September 25, 2015. 6

FAC

¶ 65; see O’Laughlin Decl. ex. 1 at 14-18 (“Sept. 2015 EEOC
Charge”).

On this charge, Ray again identified race, retaliation,

5 We also deem the letter integral to Ray’s complaint and consider its
contents.
6 As with the February 2015 EEOC Form and Ray’s March 2015 letter to the
EEOC, we consider the amended EEOC charge because it is integral to Ray’s
complaint.

6

age, and disability as the bases of discrimination, and contended
that the latest instance of discrimination occurred on October 28,
2014.

Id. at 14.

In particular, Ray identified the Fund’s July

2014 refusal to accommodate her by allowing her to work at a remote
location as a basis for disability discrimination and the October
2014 altercation with Mirabella as a basis for race discrimination.
Id. at 14.

Additionally, in a document that appears to have been

attached to the amended charge, 7 Ray discussed (1) Mullen’s refusal
to provide her with a new office chair despite other staff having
received new chairs; (2) the Fund’s disparate application of a
policy allowing employees to leave work early; (3) Mirabella’s
“allow[ing] [Ray] to be talked down to” and directing that other
employees email requests to Ray and Ray’s resulting filing of an
Affirmative Action against Mirabella in 2009; (4) Rachelson’s use
of the racial epithet in 2012; (5) the October 14, 2014 altercation
with Mirabella; (6) the subsequent interrogation by Alice Siegel
and Jackie Herman. 8

Id. at 17.

Finally, after Ray’s termination, Rachelson testified against
her in a Workers’ Compensation Board (WCB) proceeding on November
23, 2015, which she asserts was in retaliation for the complaint

7

This document is undated, but bears a seal from the same notary who
notarized the amended charge itself.
We assume, in Ray’s favor, that the
document was in fact attached.
8 Ray also identified in this document a number of instances of alleged
disability discrimination, including her termination. As we will discuss, these
instances are not relevant to the resolution of the Fund’s motion to dismiss.

7

filed against him in 2012.

FAC ¶ 78.

The EEOC issued Ray a right-

to-sue February 16, 2016, and this suit followed.
B.

Procedural History

Ray initially filed suit April 19, 2016, naming the Fund,
Rachelson, Mirabella, and Mullen as defendants.
1.

Compl., ECF No.

The complaint asserted four causes of action: (1) a hostile

work environment claim based on race 9 under Title VII, Compl.
¶¶ 85-98; (2) a retaliation claim under Title VII, Compl. ¶¶ 99109; (3) a hostile work environment claim based on race and
disability

under

the

NYSHRL,

Compl.

¶¶ 110-18;

and

retaliation claim under the NYSHRL, Compl. ¶¶ 119-23.

(4)

a

After Ray

had some difficulty achieving service of process on the defendants,
the

parties

agreed

that

the

individual

defendants

would

be

dismissed (thereby leaving the Fund as the only defendant) and
that the Fund would waive any challenge to service of process.
See Endorsed Letter, Jan. 23, 2017, ECF No. 30.
With the service of process issues resolved, the Fund filed
a pre-motion letter seeking to move to dismiss Ray’s complaint in
its entirety.

The Fund contended (1) that Ray’s NYSHRL claims

were barred by the Eleventh Amendment, (2) that Ray did not exhaust
her administrative remedies and that her claims were time-barred

9 Ray also asserts, under Title VII, that she experienced a hostile work
environment based on disability. E.g., FAC ¶ 89. Disability, of course, is
not a protected ground under Title VII. See 42 U.S.C. § 2000e-2(a) (designating
“race, color, religion, sex, or national origin” as protected grounds).

8

in part based on the EEOC charges that she did file, (3) that Ray
did not allege a sufficiently hostile work environment or that the
hostility was motivated by racial animus, and (4) that Ray did not
allege adverse employment actions that were causally connected to
any protected activity that she undertook.

See Letter from D.

Stan O’Laughlin to the Court, June 1, 2017, ECF No. 35.

After

receiving Ray’s response, see Letter from Leopold Raic to the
Court, June 6, 2017, ECF No. 36, we granted Ray leave to file an
amended complaint “to cure any alleged deficiencies raised by
defendant’s letter,” Order, June 8, 2017, ECF No. 37.
Ray

then

filed

the

Consistent

with

the

individual

defendants,

Mirabella,

and

Mullen

operative

parties’
the
as

first

agreed-upon

FAC

no

defendants.

longer

amended

complaint.

dismissal
names

of

the

Rachelson,

Additionally,

the

FAC

contains (1) previously unasserted allegations regarding Ray’s
filing of an EEOC charge in February 2015 that was supplemented by
a March 2015 letter and a September 2015 amended charge, FAC ¶¶ 6,
63-65, and (2) new allegations regarding Ray’s termination in 2015:
that she was notified of her termination on June 28, 2015, FAC
¶ 71, that she was told that her termination resulted from her
having exhausted her worker’s compensation time following her
March 2012 injury, FAC ¶ 72, and that she in fact had additional
workers’ compensation time remaining, FAC ¶ 73.

Besides these

changes and several minor differences (such as the replacement of
9

the term “Defendants” with “Defendant”), the initial complaint and
the FAC are identical.

Accordingly, the FAC continues to assert

four causes of action: for hostile work environment under Title
VII, FAC ¶¶ 83-96; for retaliation until Title VII, FAC ¶¶ 97-107;
for hostile work environment under the NYSHRL, FAC ¶¶ 108-16; and
for retaliation under the NYSHRL, FAC ¶¶ 117-21.
The Fund again moved to dismiss, identifying largely the same
bases as in its first pre-motion letter.
II.

Discussion
To survive a motion to dismiss brought under Rule 12(b)(6),

a complaint must include “enough facts to state a claim to relief
that is plausible on its face.”
U.S 544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable

inference

misconduct alleged.”

that

the

defendant

is

liable

for

the

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In assessing the sufficiency of a complaint, we must “accept[] as
true all factual allegations in the complaint, and draw[] all
reasonable inferences in the plaintiff’s favor.”
Burwell, 777 F.3d 106, 111 (2d Cir. 2015).

Barrows v.

However, we “are not

bound to accept as true a legal conclusion couched as a factual
allegation,” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555),

and

“may

consider

the

facts

alleged

in

the

complaint,

documents attached to the complaint as exhibits, and documents
10

incorporated

by

reference

in

the

complaint”

in

assessing

sufficiency, DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d
Cir. 2010).

“Where a document is not incorporated by reference,

the court may never[the]less consider it where the complaint
‘relies heavily upon its terms and effect,’ thereby rendering the
document ‘integral’ to the complaint.”

Id. (quoting Mangiafico v.

Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)).
Following the Supreme Court’s decision in Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002), “a plaintiff is not required to
plead a prima facie case under [the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)]
. . .

to

defeat

a

motion

discrimination context.

to

dismiss”

in

the

employment

Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72, 84 (2d Cir. 2015) (citing Littlejohn v. City of New
York, 795 F.3d 297, 306, 311 (2d Cir. 2015)).

That is, “a

discrimination complaint need not allege facts establishing each
element of a prima facie case of discrimination to survive a motion
to

dismiss,”

but

it

nonetheless

“must

at

a

minimum

assert

nonconclusory factual matter sufficient to nudge its claims across
the line from conceivable to plausible to proceed.”

EEOC v. Port

Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (alterations
incorporated) (internal quotation marks omitted).

Ultimately,

both in the employment discrimination context and outside it,
“[t]hreadbare recitals of the elements of a cause of action,
11

supported by mere conclusory statements, do not suffice.”

Brown

v. Daikin Am., Inc., 756 F.3d 219, 225 (2d Cir. 2014) (quoting
Iqbal, 556 U.S. at 678).
Applying these standards, we consider whether each of the
claims that Ray asserts in the FAC has been sufficiently pleaded.
A.

NYSHRL Claims

We consider Ray’s NYSHRL claims first, given the Fund’s
jurisdictional objections.

We conclude that these claims must be

dismissed because the Eleventh Amendment deprives us of subject
matter jurisdiction.
The Eleventh Amendment proscribes, when brought in federal
court and in the absence of a state’s consent, “a suit in which
the State or one of its agencies or departments is named as the
defendant.”

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 100 (1984).
the

nature

of

“This jurisdictional bar applies regardless of
the

relief

sought,”

id.,

and

“neither

pendent

jurisdiction nor any other basis of jurisdiction may override” it,
id. at 121.

Accordingly, “[a] federal court must examine each

claim in a case to see if the court’s jurisdiction over that claim
is barred by the Eleventh Amendment.”

Oneida Indian Nation of New

York v. County of Oneida, 617 F.3d 114, 132 (2d Cir. 2010)
(alteration in original) (quoting Pennhurst, 465 U.S. at 121).
“If [a defendant] is entitled to Eleventh Amendment immunity, we

12

would lack jurisdiction.”

Nat’l R.R. Passenger Corp. v. McDonald,

779 F.3d 97, 100 (2d Cir. 2015).
Ray’s NYSHRL claims are barred. “Although in certain respects
[the Fund] functions similarly to a private insurer, . . . it is
nonetheless
immunity.”

a

State

agency

entitled

to

Eleventh

Amendment

Lipofsky v. Steingut, 86 F.3d 15, 16 (2d Cir. 1996)

(per curiam).

Further, “New York State has not consented to be

sued in federal court under the NYSHRL,” Baez v. New York, 629 F.
App’x 116, 118 (2d Cir. 2015) (summary order), as “[n]othing in
the text of the NYSHRL constitutes a waiver of immunity or consent
to be sued,” Goonewardena v. N.Y. State Workers’ Comp. Bd., No. 09
Civ. 8244 (LTS), 2011 WL 4822553, at *4 (S.D.N.Y. Oct. 5, 2011)
(alterations incorporated) (quoting Tuckett v. N.Y. State Dep’t of
Taxation & Fin., No. 99 Civ. 679 (BSJ), 2000 WL 1028662, at *2
(S.D.N.Y. July 26, 2000)).

Ray contends that Emengo v. State, 143

A.D.3d 508, 509-10 (1st Dep’t 2016), supports the proposition that
the Fund may be sued for violations of the NYSHRL, but Emengo’s
implicit holdings regarding the Fund’s amenability to suit in New
York state court have no bearing on its amenability to suit in
federal court in light of the Eleventh Amendment.

The Eleventh

Amendment, of course, bears only on the “Judicial power of the
United States,” U.S. Const. amend. XI, i.e., the power of federal
courts,

not

that

of

state

courts.

Ray’s

NYSHRL

claims

therefore dismissed for lack of subject matter jurisdiction.
13

are

B.

Title VII Claims

While a state (or agency thereof) cannot be sued in federal
court for violations of state law absent consent, it may be sued
in federal court for violations of Title VII.
Bitzer, 427 U.S. 445, 455-56 (1976).

See Fitzpatrick v.

We accordingly turn to

whether the FAC states a claim under Title VII, considering Ray’s
claims for hostile work environment, retaliation, and disparate
treatment 10 in turn.
1.

Hostile Work Environment

Before considering Ray’s hostile work environment claim on
its merits,

we

first

consider

whether

she

has

exhausted

her

administrative remedies as to that claim.
a.

Exhaustion

“[E]xhaustion of administrative remedies through the EEOC
stands as an essential element of Title VII’s statutory scheme,”
Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)
(internal quotation marks omitted), but “filing a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite
to suit in federal court,” Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393 (1982).

“[T]he burden of pleading and proving

[lack of] Title VII exhaustion lies with defendants and operates

10

The FAC is hardly clear as to whether it asserts a claim for
discrimination beyond a hostile work environment and the FAC’s first claim
focuses primarily on hostile work environment. Even though Ray has advanced an
“imperfect statement of the legal theory supporting the claim asserted,” the
FAC’s legal imprecision does not by itself warrant dismissal of a disparate
treatment claim. Johnson v. City of Shelby, 135 S. Ct 346, 346 (2014).

14

as an affirmative defense.” Hardaway v. Hartford Pub. Works Dep’t,
879 F.3d 486, 491 (2d Cir. 2018).
“Before

bringing

a

Title

VII

suit

in

federal

court,

an

individual must first present ‘the claims forming the basis of
such a suit . . . in a complaint to the EEOC or the equivalent
state agency.’”

Littlejohn, 795 F.3d at 322 (quoting Williams v.

N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (per curiam));
see also 42 U.S.C. § 2000e-5(f)(1).

There need not, however, be

perfect overlap between the claims raised administratively and the
claims advanced in a Title VII suit.

“Claims not raised in an

EEOC complaint” nonetheless “may be brought in federal court if
they are ‘reasonably related’ to the claim filed with the agency.”
Williams, 458 F.3d at 70.

“In determining whether claims are

reasonably related, the focus should be ‘on the factual allegations
made in the [EEOC] charge itself, describing the discriminatory
conduct about which a plaintiff is grieving.’”

Deravin v. Kerik,

335 F.3d 195, 201 (2d Cir. 2003) (alteration in original) (quoting
Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir.
2002)).
the

“The central question is whether the complaint filed with

EEOC

gave

that

agency

discrimination on both bases.’”

‘adequate

notice

to

investigate

Williams, 458 F.3d at 70 (quoting

Deravin, 335 F.3d at 202).
Though “the ‘reasonably related’ inquiry requires a factintensive analysis,” Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d
15

Cir. 2008), the Second Circuit has recognized that “[h]ostile
environment claims are different in kind from discrete acts,” id.
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002)).

Accordingly, courts in this district have consistently

held that “allegations in the EEOC charge [that] relate solely to
several

discrete

instances

of

alleged

discrimination

or

retaliation . . . are insufficient to exhaust a hostile work
environment claim.”

Batiste v. City Univ. of N.Y., No. 16 Civ.

3358 (VEC), 2017 WL 2912525, at *6 (S.D.N.Y. July 7, 2017) (quoting
Perez v. N.Y. & Presbyterian Hosp., No. 05 Civ. 5749 (LBS), 2009
WL 3634038, at *10 (S.D.N.Y. Nov. 3, 2009)); see also Wright v.
N.Y.C. Off-Track Betting Corp., No. 05 Civ. 9790 (WHP), 2008 WL
762196, at *3 (S.D.N.Y. Mar. 24, 2008) (“[P]resenting a disparate
treatment or retaliation claim to the EEOC will not exhaust a
hostile work environment claim.”).

Rather, “to properly exhaust

[such a] claim, a plaintiff must actually allege a hostile work
environment claim in his EEOC Charge.” Khater v. API Indus., Inc.,
No. 16 Civ. 6695 (CS), 2017 WL 6515531, at *3 (S.D.N.Y. Dec. 19,
2017) (alteration in original) (quoting Levitant v. Hilt N.Y.
Waldorf LLC, No. 10 Civ. 4667 (PKC), 2012 WL 414515, at *7
(S.D.N.Y. Feb. 6, 2012)).

Ray offers no reason for departing from

this well-established line of authority.
Accordingly, Ray’s hostile work environment claim fails for
lack of administrative exhaustion.
16

At no point in her February

2015 intake questionnaire, her March 2015 letter, or her September
2015 amended charge did Ray explicitly assert that she was being
subjected to a hostile work environment. 11
raise

a

hostile

work

environment

attaching the specific label.

claim

Nor did her filings
in

substance

without

Rather, those filings assert, at

most, six discrete instances of maltreatment occurring over a fiveyear period between 2009 and 2014 (if not longer).

Allegations of

these discrete incidents do not exhaust a Title VII hostile work
environment claim, see, e.g., Batiste, 2017 WL 2912525, at *6;
Wright, 2008 WL 762196, at *3, and Ray’s failure to exhaust her
administrative remedies alone warrants dismissal of her hostile
work environment claim.
b.

Merits

Ray’s Title VII hostile work environment claim additionally
fails because the FAC does not plausibly allege such a claim.

“To

state a claim for a hostile work environment in violation of Title
VII, a plaintiff must plead facts that would tend to show that the
complained of conduct: (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

of

the

plaintiff’s

11 We consider more extensively below whether the February 2015 intake
questionnaire has exhaustive effect. The resolution of this question has no
bearing on whether Ray failed to exhaust her hostile work environment claim.

17

[protected class].’”

Patane v. Clark, 508 F.3d 106, 113 (2d Cir.

2007) (per curiam) (omission in original) (quoting Gregory v. Daly,
243 F.3d 687, 691-92 (2d Cir. 2001)).

This test “has both an

objective and subjective component”: the work environment must
both be “objectively hostile or abusive,” and the “victim must
also subjectively perceive” the environment as such.

Petrosino v.

Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004) (quoting Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).
“Accordingly, to analyze a hostile work environment claim, we
are required to look to the [complaint] as a whole and assess the
totality of the circumstances.”

Gorzynski v. JetBlue Airways

Corp., 596 F.3d 93, 102 (2d Cir. 2010).

“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.”
(internal quotation marks omitted).

Patane, 508 F.3d at 113

“[A] plaintiff need not show

that her hostile working environment was both severe and pervasive;
only that it was sufficiently severe or sufficiently pervasive, or
a sufficient combination of these elements, to have altered her
working conditions.”

Redd v. N.Y. Div. of Parole, 678 F.3d 166,

175 (2d Cir. 2012) (quoting Pucino v. Verizon Wireless Commc’ns,
Inc., 618 F.3d 112, 119 (2d Cir. 2010)).
18

Though “a single incident

of sufficient severity may so alter the terms and conditions of
employment as to create such an environment,” “isolated incidents
ordinarily

will

environment.”

not

rise

to

the

level

of

a

hostile

work

Patterson v. County of Oneida, 375 F.3d 206, 227

(2d Cir. 2004).
The FAC sufficiently pleads that Ray subjectively perceived
the working environment as hostile and abusive, but the handful of
incidents alleged in the FAC over the course of five years are
neither sufficiently severe nor sufficiently pervasive to create
an objectively hostile work environment.

None of the incidents

are of severity comparable to that of the single incidents found
to have been sufficient, standing alone, to create a hostile work
environment, such as that of a “lengthy, vulgar tirade against the
plaintiff in the presence of a large group of co-workers,” Raspardo
v. Carlone, 770 F.3d 97, 118 (2d Cir. 2014) (citing Howley v. Town
of Stratford, 217 F.3d 141, 149, 154 (2d Cir. 2000)), or that of
a sexual assault, see Ferris v. Delta Air Lines, Inc., 277 F.3d
128, 136 (2d Cir. 2001).
Nor are the incidents alleged in the FAC, occurring over a
number of years taken by a number of different Fund employees,
“sufficiently

continuous

and

concerted

conditions of [Ray’s] working environment.”

to

have

altered

the

Desardouin v. City of

Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (quoting Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)).
19

Raspardo, in

which the Second Circuit dismissed one plaintiff’s claim alleging
hostile work environment but sustained a second plaintiff’s claim,
see 770 F.3d at 118-19, is instructive.

The “four principal

incidents” and “over ten” additional comments identified by the
second plaintiff, “all over a period of just one year,” were
sufficient to support a hostile work environment claim, but the
“two incidents,” “as well as the use of [a sexual] nickname, spread
over more than a year,” identified by the first plaintiff were
insufficient as a matter of law.

Id.

The incidents that Ray

alleges are far closer to the conduct identified by the first
plaintiff in Raspardo and are equally insufficient.

See also

Feingold, 366 F.3d at 150 & n.9 (comparing “almost daily” antiSemitic

remarks

experienced

by

the

plaintiff,

which

were

sufficient to state a hostile work environment claim, and similar
comments that “were isolated” and “made infrequently over a period
of five years,” which were insufficient “although arguably more
vicious”).
Accordingly, Ray’s hostile work environment fails because the
FAC does not allege an objectively hostile or abusive environment
as required under Title VII in addition to being unexhausted.
Though the FAC alleges -- assuming the allegations are true as we
must -- conduct that is certainly objectionable, “Title VII simply
‘does not set forth a general civility code for the American
workplace.’”

McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 76
20

(2d Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006)).

Ray’s Title VII hostile work environment

claim is dismissed.
2.

Retaliation

Turning to Ray’s retaliation claim, we first address the
Fund’s statute of limitations and exhaustion arguments before
considering the merits.
a.

Statute of Limitations

The Fund contends, at the threshold, that Ray’s February 2015
EEOC intake questionnaire does not constitute a “charge” for either
statute of limitations or exhaustion purposes.

Because a “charge

shall be filed by or on behalf of the person aggrieved within three
hundred

days

after

the

alleged

unlawful

employment

practice

occurred,” 42 U.S.C. § 2000e-5(e)(1), 12 whether several of the
discriminatory acts alleged by Ray may support a retaliation claim
rests on our resolution of this question.
Title VII does not define the term “charge” by statute, nor
has the EEOC promulgated regulations specifically delineating what
constitutes a “charge” in the Title VII context.

However, in

Federal Express Corp. v. Holowecki, 552 U.S. 389, 395 (2008), the
Supreme

Court

considered

whether

an

intake

questionnaire

12 “The three-hundred-day look-back period is in fact an extended period
that Title VII affords to plaintiffs complaining about conduct that occurred in
a state with its own antidiscrimination enforcement mechanisms, which includes
New York.” Duplan v. City of New York, 888 F.3d 612, 621 n.7 (2d Cir. 2018).

21

constituted a “charge” filed with the EEOC, which is also a
prerequisite

to

filing

suit

under

the

Age

Employment Act (ADEA), 29 U.S.C. § 626(d).

Discrimination

in

Holowecki concluded

that the intake questionnaire submitted by the plaintiff in that
case constituted a charge, adopting the rule that “a filing is
deemed a charge if the document reasonably can be construed to
request agency action and appropriate relief on the employee’s
behalf,” 552 U.S. at 404, and noting that the questionnaire at
issue “was supplemented with a detailed six-page affidavit” and
included a request that the EEOC “force [the employer] to end their
age discrimination plan so we can finish out our careers absent
the

unfairness

and

hostile

work

environment

created

[by

the

complained-of policy],” id. at 405.
While

Holowecki

relied

on

the

plaintiff’s

supplemental

affidavit and additional request to conclude that the intake
questionnaire was a charge, “the EEOC has [since] modified its
form Intake Questionnaire . . . to facilitate the determination
whether such a questionnaire, in any particular case, constitutes
a charge.”

Brown v. City of New York, No. 11 Civ. 2915 (PAE),

2013 WL 3789091, at *8 (S.D.N.Y. July 19, 2013).
the

EEOC

modified

its

intake

questionnaire

to

Specifically,
offer

the

two

checkboxes presented to Ray: Box 1 stating that “I want to talk to
an EEOC employee before deciding whether to file a charge,” and
Box 2 stating that “I want to file a charge of discrimination, and
22

I authorize the EEOC to look into the discrimination I described
above.” When a would-be plaintiff checks the second box indicating
that she “wish[es] to file a charge of discrimination” and that
she

“authorize[s]

the

EEOC

to

look

into

the

discrimination”

described in the questionnaire -- and the intake questionnaire
satisfies

the

various

criteria

set

forth

in

the

EEOC’s

regulations 13 -- the intake questionnaire at issue constitutes a
charge for statute of limitations and exhaustion purposes.

See

Brown, 2013 WL 3789091, at *8-9; see also Acheampong v. N.Y.C.
Health & Hosps. Corp., No. 11 Civ. 9205 (LTS), 2015 WL 1333242, at
*7-8 (S.D.N.Y. Mar. 25, 2015); Robinson v. Macy’s, No. 14 Civ.
4937 (CM), 2014 WL 6997598, at *6-7 (S.D.N.Y. Dec. 5, 2014); Harris
v. NYU Langone Med. Ctr., No. 12 Civ. 454 (RA), 2013 WL 5425336,
at *2 (S.D.N.Y. Sept. 27, 2013). Ray, on her intake questionnaire,
unambiguously checked Box 2, expressing her desire that the EEOC
investigate the discrimination of which she complained.

That is

sufficient to render the intake questionnaire a “charge” for
statute of limitations and exhaustion purposes.
The Fund offers no reason to stray from this well-established
post-Holowecki line of authority.

13

Rather, the single authority

At minimum, the “charge shall be in writing and signed.” 29 C.F.R.
§ 1601.9. Additionally, the EEOC must be able “to identify the parties, and to
describe generally the action or practices complained of” based on the written
statement.
Id. § 1601.12(b).
There can be no dispute that Ray’s intake
questionnaire was a written document and provided the EEOC with sufficient
information to identify the Fund and inform it of Ray’s complaint well before
Ray’s September 2015 amended charge.

23

that it (somewhat misleadingly) cites in support of the blanket
proposition that an intake questionnaire is not a charge, Simpson
v. City of N.Y. Dep’t of Hous. Pres. & Dev., No. 08 Civ. 185
(SHS)(KNF), 2009 WL 996388 (S.D.N.Y. Apr. 13, 2009), did not
address the Supreme Court’s decision in Holowecki, held only that
a “questionnaire generally does not meet the requirements for
filing a charge,” and noted that the questionnaire in question did
not evidence “an intent by [the plaintiff] to ‘activate’ the EEOC’s
administrative process,” id. at *6 (emphasis added).

Those simply

are not the facts of this case, and Simpson is particularly inapt
following

the

questionnaire. 14

EEOC’s

post-Holowecki

revisions

to

its

intake

Because Ray’s February 2015 intake questionnaire

constitutes a charge, her retaliation claims are timely to the
extent they are based on events occurring fewer than 300 days
before Ray’s February 17, 2015 intake questionnaire, 15 or those
after April 23, 2014. 16

14

Further, the Fund’s argument cannot be reconciled with the EEOC’s July
2015 notice to the Fund that Ray had filed a charge of discrimination against
it, two months prior to the September 2015 amended charge that the Fund contends
to be the only charge in this case.
15 The submission of Ray’s questionnaire on February 17, 2015 is the
operative date rather than the EEOC’s March 11, 2015 receipt of that
questionnaire.
See 42 U.S.C. § 2000e-5(e)(1) (requiring that a charge “be
filed” within 300 days, not that it be received).
16 In her opposition, Ray refers to the availability of equitable tolling
in the Title VII context. This statement is correct as a matter of law, see
Morgan, 536 U.S. at 113 (“[The] time period for filing a charge is subject to
equitable doctrines such as tolling or estoppel.”), but Ray offers no argument
that tolling is “necessary to prevent unfairness” because she “is not at fault
for her lateness in filing,” Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d
318, 322 (2d Cir. 2004).

24

b.

Merits

While Ray need not specifically plead each element a prima
facie case for

retaliation, 17 she

nonetheless “must plausibly

allege that: (1) defendants discriminated -- or took an adverse
employment action -- against [her], (2) ‘because’ [s]he has opposed
any unlawful employment practice.”
42 U.S.C. § 2000e-3.

Vega, 801 F.3d at 90; see also

That is, Ray must plead (1) engagement in

opposition to an unlawful employment practice; (2) an adverse
employment action; and (3) factual matter rendering plausible an
inference of causation between her protected activity and the
adverse employment action.
“For
protected,

purposes
[42

of

U.S.C.

See Vega, 801 F.3d at 90.

determining
§ 2000e-3]

whether

includes

an

both

activity
an

is

opposition

clause and a participation clause.”

Littlejohn, 795 F.3d at 316

(internal quotation marks omitted)).

“The opposition clause makes

it unlawful for an employer to retaliate against an individual
because she ‘opposed any practice’ made unlawful by Title VII,”
whereas “the participation clause only encompasses participation
in formal EEOC proceedings.”

Id.

For purposes of the opposition

clause, a plaintiff “need not establish that the conduct she
opposed was actually a violation of Title VII, but only that she

17 However, “the elements of a prima facie case may be used as a prism to
shed light upon the plausibility of the claim.” Littlejohn, 795 F.3d at 311
n.9 (quoting Rodriguez–Reyes v. Molina–Rodriguez, 711 F.3d 49, 54 (1st Cir.
2013)).

25

possessed a good faith, reasonable belief that the underlying
employment practice was unlawful under that statute.”

Summa v.

Hofstra Univ., 708 F.3d 115, 126 (2d Cir. 2013) (internal quotation
marks omitted).
a

belief

that

“[W]hen an employee communicates to her employer
the

employer

has

engaged

in

. . .

a

form

of

employment discrimination, that communication virtually always
constitutes
Littlejohn,

the
795

employee’s
F.3d

at

317

opposition
(emphasis

to

the

omitted)

activity.”

(omission

in

original) (quoting Crawford v. Metro. Gov’t of Nashville & Davidson
Cty., 555 U.S. 271, 276 (2009)).
Ray’s
activities.

complaint

adequately

Specifically,

Ray

pleads

a

number

alleges

that

she

of
(1)

protected
filed

a

complaint against Mirabella in March 2009, FAC ¶ 40; (2) filed a
complaint against Rachelson in 2012, FAC ¶ 44; (3) complained in
July 2014 about the Fund’s failure to provide her with a functional
chair, FAC ¶ 46; (4) requested on October 7, 2014 that she be
treated with “the same rights and respect” as white employees, FAC
¶ 47; (5) complained on October 8, 2014 after her request to work
from a remote location was denied, FAC ¶ 51; (6) filed a police
report and complained about the assault in Mirabella’s office, FAC
¶¶ 56-57; and (7) began the EEOC administrative process in February
2015, FAC ¶ 63.
“[A]n adverse employment action is any action that ‘could
well dissuade a reasonable worker from making or supporting a
26

charge

of

discrimination.’”

Vega,

801

F.3d

at

90

(quoting

Burlington, 548 U.S. at 57). This standard, which does not require
that an adverse action impact “an employee’s ‘compensation, terms,
conditions, or privileges of employment,’” Kessler v. Westchester
Cty. Dep’t of Soc. Servs., 461 F.3d 199, 208 (2d Cir. 2006),
therefore “covers a broader range of conduct than does the adverseaction standard for claims of discrimination under Title VII,”
Vega,

801

F.3d

at

90.

However,

“‘[p]etty

slights

or

minor

annoyances that often take place at work and that all employees
experience’ do not constitute actionable retaliation.”

Hicks v.

Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington, 548
U.S. at 68).
based

on

the

“Material adversity is to be determined objectively,
reactions

of

a

reasonable

employee.

‘Context

matters,’ as some actions may take on more or less significance
depending

on

the

context.”

Tepperwien

v.

Entergy

Nuclear

Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011). Because the
Second Circuit’s “standard for First Amendment retaliation claims
has always been the equivalent to the standard set forth in
Burlington Northern,” Zelnik v. Fashion Inst. of Tech., 464 F.3d
217, 227 (2d Cir. 2006), cases addressing adverse actions in the
First Amendment retaliation context apply with equal force in the
Title VII retaliation context.
Ray’s complaint lists a number of actions that were taken
against her following her protected activity: (1) that Mirabella
27

threatened

(at

an

unidentified

time)

that

she

would

“create

complaints” against Ray, FAC ¶ 42; (2) that Rachelson used a racial
epithet in 2012, FAC ¶ 44; (3) that Ray was denied a functional
office chair, FAC ¶ 45; (4) that she was denied the opportunity to
work from a different office location on October 8, 2014, FAC ¶ 50;
(5) that Mirabella assaulted Ray on October 14, 2014, FAC ¶ 53;
(6) that Alice Siegel and Jackie Herman interrogated Ray on October
22, 2014, FAC ¶ 59; (7) that Ray was terminated effective July 28,
2015 after having been notified on June 29, 2015, FAC ¶¶ 71, 74;
and

(8)

that

Rachelson

testified

against

her

in

a

Workers’

Compensation Board (WCB) hearing in November 2015, FAC ¶ 78.

We

consider the extent to which any of these actions may form the
basis of a retaliation claim.
First,

Mirabella’s

threat

to

“create

complaints”

cannot

support a retaliation claim because it was not exhausted through
Ray’s EEOC filings.

Further, Ray does not allege that this threat

was made on or after April 23, 2014, such that it would be timely.
Rather, Ray offers no specifics as to when Mirabella made this
threat,

and

this

failure

“to

state

with

even

a

modicum

of

specificity when the relevant events occurred” offers yet another
basis on which to conclude that Mirabella’s threat here cannot
support a retaliation claim.

Carter v. Verizon, No. 13 Civ. 7579

(KPF), 2015 WL 247344, at *15 (S.D.N.Y. Jan. 20, 2015) (quoting

28

Henry v. NYC Health & Hosps. Corp., 18 F. Supp. 3d 396, 412
(S.D.N.Y. 2014) (Engelmayer, J.)).
Second, Rachelson’s use of a racial epithet in 2012 cannot
support a retaliation claim because the conduct complained of
occurred well before April 23, 2014.

The claim is untimely.

Third, the refusal to provide Ray with a functional chair
also does not sustain Ray’s retaliation claim.

As an initial

matter, Ray alleges only that the Fund refused to provide her with
a functional chair “at all times herein relevant,” FAC ¶ 45, and
this allegation is too “non-specific as to time to serve as a basis
for her retaliation claims.”

Carter, 2015 WL 247344, at *15;

Henry, 18 F. Supp. 3d at 412.

Even if we were to infer that this

denial occurred before July 29, 2014 (when Ray complained about
the denial, FAC ¶ 46), it must have occurred after April 23, 2014
in order to be timely.
But a denial in April 2014 would still be too remote in time
from Ray’s preceding protected activity -- her complaints against
Mirabella in 2009 and against Rachelson in 2012 -- to support an
inference of causation.
“temporal
inference.

proximity

must

As the Supreme Court has emphasized,
be

very

close”

to

support

such

an

Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (internal quotation marks omitted).

The Second Circuit has

declined to establish a “bright line to define the outer limits
beyond which a temporal relationship is too attenuated,” Abrams v.
29

Dep’t of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014), but a
temporal

gap

of

more

than

a

few

months

will

generally

be

insufficient to raise a plausible inference of causation without
more, see Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d
257, 275 (S.D.N.Y. 2007) (Sullivan, J.) (collecting post-Breeden
authority); see also, e.g., Dressler v. City Sch. Dist. of the
City of N.Y., No. 15 Civ. 3696 (JPO), 2016 WL 4367967, at *4
(S.D.N.Y. Aug. 15, 2016); Carter v. Verizon, No. 13 Civ. 7579
(KPF), 2015 WL 247344, at *14 (S.D.N.Y. Jan. 20, 2015); Brown v.
City of New York, No. 14 Civ. 2668 (PAE), 2014 WL 5861995, at *23 & n.2 (S.D.N.Y. Nov. 12, 2014); Williams v. City of New York,
No. 11 Civ. 9679 (CM), 2012 WL 3245448, at *11 (S.D.N.Y. Aug. 8,
2012); Mazurkiewicz v. N.Y.C. Health & Hosps. Corp., No. 09 Civ.
5962 (WHP), 2010 WL 3958852, at *5 (S.D.N.Y. Sept. 16, 2010).

The

FAC contains no other allegations bearing on the Fund’s retaliatory
motive in denying Ray a functional chair, and the temporal gap of
more than a year cannot raise a plausible inference of retaliatory
motive.
Fourth, the denial of Ray’s remote work request from the
Fund’s

125th

Street

location

on

days

when

she

calendar” cannot support her retaliation claim. 18
raise

the

denial

with

the

EEOC

and

it

is

was

“off

the

While Ray did

timely,

the

mere

18 The FAC does not explain what “off the calendar” status means.
We
interpret the term to refer to days where Ray’s physical presence at her usual
working location was not strictly necessary.

30

inconvenience of working from a different location does not,
without

some

other

employment action.

impact,

rise

to

the

level

of

an

adverse

“The courts in this Circuit have generally

declined to find that transfers (or denials of transfers) amount
to adverse employment actions, even in the context of a retaliation
claim, where the action results merely in ‘an inconvenience, such
as an increased commute or unfavorable hours.’”

Taylor v. N.Y.C.

Dep’t of Educ., No. 11 Civ. 3582 (JG), 2012 WL 5989874 (E.D.N.Y.
Nov. 30, 2012) (quoting Antonmarchi v. Consol. Edison Co. of N.Y.
Inc., No. 03 Civ. 7735 (LTS), 2008 WL 4444609, at *15 (S.D.N.Y.
Sept. 29, 2008)); see Hoag v. Fallsburg Cent. Sch. Dist., 279 F.
Supp. 3d 465, 486-87 (S.D.N.Y. 2017) (Seibel, J.).

The denial of

Ray’s request to work remotely is of even less significance: it
was not a permanent transfer, it pertained only to her off-calendar
days, and it did not inconvenience her but rather denied her a
convenience by merely requiring her to work from her normal working
location.

Taken in context, the denial of Ray’s remote work

request cannot rise to the level of an adverse employment action.
Fifth, the October 14, 2014 altercation in Mirabella’s office
also

does

not

support

a

claim

of

retaliation,

even

though

“[p]hysical assaults can constitute adverse actions for purposes
of a retaliation claim.”

Kelly v. N.Y. State Office of Mental

Health, 200 F. Supp. 3d 378, 404 (E.D.N.Y. 2016) (Matsumoto, J.);
see, e.g., Cortes v. City of New York, 700 F. Supp. 2d 474, 482
31

(S.D.N.Y. 2010) (Swain, J.) (finding that plaintiff’s allegations
of physical assault sufficiently pleaded an adverse employment
action); Manon v. Pons, 131 F. Supp. 3d 219, 233 (S.D.N.Y. 2015)
(Caproni, J.) (“The physical assault that [plaintiff] describes
-- during which [defendant] allegedly ran full-throttle into her,
causing significant injury -- would be sufficient to dissuade a
reasonable person from exercising her First Amendment rights”). 19
While an alleged assault is not an adverse employment action if,
for example, the assailant makes no contact with the plaintiff,
cf. Ejiogu v. Grand Manor Nursing & Rehab. Ctr., No. 15 Civ. 505
(DLC), 2017 WL 1322174, at *3 (S.D.N.Y. Apr. 5, 2017), Ray alleges
that the she was “taken to hospital by ambulance” after Mirabella
“grabbed

Plaintiff’s

left

Plaintiff,

and

slammed

shoulder.”

her

arm

(which

office

was

door

on

in

cast),

pushed

Plaintiff’s

left

FAC ¶¶ 53-55.

Nonetheless, Ray does not allege that Mirabella assaulted her
with retaliatory motive.
of

any

allegation,

As an initial matter, the FAC is devoid

however

conclusory,

19

that

the

assault

was

The Fund correctly argues that Batista v. Waldorf Astoria, No. 13 Civ.
3226 (LGS), 2015 WL 4402590 (S.D.N.Y. July 20, 2015), held that an assault is
not an adverse employment action in the retaliation context. Batista reasoned
that the assault did not “permanently alter[] Plaintiff’s working conditions,”
id. at *11, and cited the Second Circuit’s holding in Mathirampuzha that
supervisor violence did not amount to an adverse employment action in the
discrimination context (as opposed to the retaliation context), see 548 F.3d at
79. Accordingly, while we agree supervisor violence generally is not an adverse
employment action for purposes of a Title VII discrimination claim, we
respectfully disagree with Batista to the extent it holds that supervisor
violence can never constitute an adverse employment action for purposes of a
Title VII retaliation claim.

32

prompted by Ray’s prior protected activity or that the assault
would not have occurred but-for Ray’s prior complaints.

Rather,

the FAC’s retaliation allegations focus on Mirabella’s threat to
“create complaints,” Ray’s termination, and Rachelson’s testimony
against Ray in a subsequent WCB hearing.

Similarly, Ray does not

argue in her opposition that Mirabella’s assault was retaliatory;
rather, her opposition recites the allegations in the complaint
and

focuses

specifically

on

Mirabella’s

threat

to

“create

complaints” and Ray’s termination.

Further, Ray does not allege

that

July

Mirabella

was

aware

of

her

2014

or

October

2014

complaints about discrimination (her only protected activity of
sufficient temporal proximity), nor does the FAC give rise to such
an inference in light of Ray’s nonspecific allegations that her
prior complaints were made “to the Defendant” -- the Fund. 20
Accordingly, we conclude that the October 14, 2014 assault does
not support Ray’s retaliation claim because the FAC does not raise
a plausible inference that the assault was driven by a retaliatory
motive on Mirabella’s part.
Sixth, the October 22, 2014 “interrogation” by Alice Siegel
and Jackie Herman cannot sustain Ray’s retaliation claim.
accepting

Ray’s

characterization

of

the

interview,

Even
an

interrogation of the type described does not constitute an adverse

20 Ray’s initial complaint, which named Mirabella, Mullen, and Rachelson
as defendants was no more specific; her initial complaint alleged that she
complained “to the Defendants.” Compl. ¶¶ 53, 54, 58.

33

employment action as a matter of law, especially when it was
unaccompanied by any further consequences.

See Tepperwien, 663

F.3d at 569-70 (reasoning that being subject to three fact-finding
investigations

by

the

employer

did

not

support

Title

VII

retaliation); see also Wrobel v. County of Erie, 692 F.3d 22, 3132 (2d Cir. 2012) (holding that an “interrogation” and additional
questioning were “de minimis slights and insults that do not amount
to retaliation” in the First Amendment context).
Seventh, Ray’s termination in July 2015 is unquestionably an
adverse employment action, but the complaint does not plausibly
allege that her termination occurred “‘because’ [s]he has opposed
any unlawful employment practice.”

Vega, 801 F.3d at 90.

While

we cannot consider the Fund’s proffered explanation (that Ray was
terminated by operation of section 71 of the New York Civil Service
Law) on a Rule 12(b)(6) motion, see Littlejohn, 795 F.3d at 311
(“The plaintiff cannot reasonably be required to allege more facts
in the complaint than the plaintiff would need to defeat a motion
for summary judgment made prior to the defendant’s furnishing of
a

non-discriminatory

justification.”

(emphasis

added)),

Ray’s

allegations make clear that the Fund had decided to terminate her
-- and informed her of that decision -- on June 29, 2015, FAC ¶ 71,
one month before the EEOC notified the Fund of Ray’s February 2015
charge, FAC ¶ 70.

Because the notice of termination is the

operative act, cf. Shultz v. Congregation Shearith Israel, 867
34

F.3d 298, 305 (2d Cir. 2017) (“[A] discrimination claim accrues
upon notice of termination, rather than upon the implementation of
that decision.”), this sequence of events renders implausible any
inference that Ray’s EEOC filing caused the Fund’s termination
decision.

The other protected activity in which Ray engaged, all

of which occurred at least eight months prior to Ray being informed
of her termination, is too remote in time to support a plausible
inference of causation.

See, e.g., Breeden, 532 U.S. at 273;

Brown, 2014 WL 5861995, at *2-3.
Eighth, Rachelson’s November 2015 testimony against Ray at a
WCB hearing also fails to sustain her retaliation claim.

As an

initial matter, some question remains as to whether Rachelson’s
testimony, unaccompanied by a denial or reduction of workers’
compensation benefits, constitutes an adverse employment action.
Cf. Campbell v. N.Y.C. Transit Auth., 93 F. Supp. 3d 148, 170
(E.D.N.Y. 2015) (Brodie, J.) (“[T]he [employer’s] decision to
controvert

[plaintiff’s]

workers’

compensation

claim

did

not

constitute adverse action [for purposes of a discrimination claim]
as it did not result in a material loss of benefits.”).

But even

accepting that Rachelson’s testimony against her constituted an
adverse employment action, the three-year temporal gap between
Ray’s 2012 complaint against Rachelson, FAC ¶ 44, and Rachelson’s
November 2015 WCB testimony dispositively undercuts any inference

35

of causation.

See, e.g., Breeden, 532 U.S. at 273; Brown, 2014 WL

5861995, at *2-3.
Though we conclude that none of the individual acts identified
in Ray’s complaint constitute an adverse employment action, the
Second Circuit has instructed that “the alleged acts of retaliation
need to be considered both separately and in the aggregate, as
even minor acts of retaliation can be sufficiently ‘substantial in
gross’ as to be actionable.”

Hicks, 593 F.3d at 165.

But the

eight acts that Ray alleges -- dispersed over multiple years and
many of which individually are de minimis -- do not add up to
actionable retaliation.

And as the Second Circuit has noted,

“while the test is an objective one, it is relevant that [Ray]
[her]self was not deterred from complaining -- [s]he complained
numerous times.”

Tepperwien, 663 F.3d at 572.

Because Ray has not plausibly alleged that the Fund took an
adverse employment action against her because of her opposition to
the Fund’s allegedly unlawful employment practices, her Title VII
retaliation claim fails.
3.

It is accordingly dismissed.

Discrimination

Finally, we consider whether the FAC adequately pleads a
discrimination claim.

To state a Title VII discrimination claim,

“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
36

decision.”

Vega, 801 F.3d at 86.

Because “Title VII makes it

unlawful for an employer ‘to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment,’” Hicks, 593 F.3d at 164 (quoting 42 U.S.C. § 2000e2(a)), an adverse action must effect “a materially adverse change
in the terms and conditions of employment” and must be “more
disruptive than a mere inconvenience or an alteration of job
responsibilities,” Vega, 801 F.3d at 85 (internal quotation marks
omitted).

“Examples

of

materially

adverse

changes

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. (quoting

Terry, 336 F.3d at 138).
Before considering individually each act alleged in the FAC,
we first address Ray’s argument that she has pleaded a “pattern
and practice” of discrimination that is properly treated as a
single claim, thereby entitling her to rely on discriminatory acts
occurring before the 300-day period under the Supreme Court’s
decision in Morgan, 536 U.S. 101.

This argument misreads Morgan

and misunderstands the purpose of a “pattern-or-practice” claim.
In Morgan, the Supreme Court held a plaintiff may rely on
acts occurring outside the 300-day period to support a hostile
work

environment

claim,

536

U.S.
37

at

120-21,

reasoning

that

“[h]ostile environment claims are different in kind from discrete
acts” because “[t]heir very nature involves repeated conduct,” id.
at 115.

Accordingly, “[a]lthough many of the acts upon which [the

plaintiff’s] claim depends occurred outside the 300 day filing
period, we cannot say that they are not part of the same actionable
hostile environment claim.”

Id. at 120-21.

However, in so

holding, the Supreme Court explicitly distinguished hostile work
environment claims and claims based on “discrete discriminatory
acts,” which “are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.”

Id. at 113.

Rather, “[e]ach discrete discriminatory act starts a new clock for
filing charges alleging that act.”

Id.

As the Second Circuit has

emphasized following Morgan, “[d]iscrete acts [such as denials of
promotions,

transfers,

limitations

period,

and

cannot

firings],
be

which

brought

fall

within

outside

it,

even

the
when

undertaken pursuant to a general policy that results in other
discrete acts occurring within the limitations period.”

Chin v.

Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012). 21
Each of the acts that Ray alleges here is, at most, a discrete
discriminatory

act,

even

though

she

alleges

they

were

taken

pursuant to a general “pattern or practice” of discrimination.

21 The relevant part of the one authority on which Ray relies in arguing
the contrary was reversed by the Second Circuit’s decision in Chin. See Port
Auth. Police Asian Jade Society of N.Y. & N.J., Inc. v. Port Auth. of N.Y. &
N.J., 681 F. Supp. 2d 456 (S.D.N.Y. 2010), aff’d in part, rev’d in part, and
remanded sub nom. Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135.

38

Indeed, Ray’s argument misapprehends the meaning of the term
“pattern or practice.”

“Title VII disparate treatment claims are

of two types: (1) individual claims, which follow the familiar
McDonnell Douglas burden-shifting framework, and (2) pattern-orpractice

claims,

which

focus

on

allegations

of

widespread

discrimination and generally follow the Teamsters burden-shifting
framework.”
(citing

Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012)

McDonnell

Douglas,

411

U.S.

792,

and

Int’l

Bhd.

of

Teamsters v. United States, 431 U.S. 324 (1977)). That is, “the
term ‘pattern or practice’ . . . refer[s] not to an element of a
[Title VII] claim, but to the method of proof that the Supreme
Court endorsed in Teamsters for the adjudication of such claims.”
Chin, 685 F.3d at 147-48.

“[T]he pattern-or-practice method of

proof is not available to nonclass, private plaintiffs” like Ray.
Id. at 150. 22
Accordingly, we analyze separately each of the discrete acts
alleged in the FAC: requiring Ray to travel to other boroughs, FAC
¶ 36; not allowing Ray to leave work early, FAC ¶¶ 37-38; directing
other employees to email Ray instead of communicating verbally,
FAC ¶ 39; and the eight acts considered in connection with Ray’s
retaliation claim.

Only one -- Ray’s termination -- suffices.

22 The Fund correctly notes that a number of courts in this district have
adopted such a rule, as well as six other Courts of Appeals. So has the Second
Circuit, the one of particular relevance to us.

39

See Vega, 801 F.3d at 85 (“Examples of materially adverse changes
include termination of employment . . . .”).
First, the allegation that Ray was required to travel to other
boroughs is unexhausted and cannot support Ray’s discrimination
claim.

See Williams, 458 F.3d at 70.

Second, while Ray exhausted the allegation that she was not
allowed to leave work early (and further assuming that the claim
is timely), the requirement that she maintain her regular working
hours, axiomatically, cannot amount to an adverse change the “terms
or conditions” of her employment.

Vega, 801 F.3d at 85.

Third, the allegation that Ray was required to accept email
requests

instead

timeliness,

is

of

too

employment action.

verbal

requests,

insignificant

to

again

assuming

constitute

an

its

adverse

Even accepting that Ray “felt humiliated and

embarrassed” as a result, FAC ¶ 40, the receipt of email requests
rather

than

verbal

requests

would

at

most

be

a

“mere

inconvenience,” Vega, 801 F.3d at 85, not an actionable adverse
employment action.
Fourth,

Mirabella’s

threat

to

“create

complaints”

cannot

support Ray’s discrimination claim because it is unexhausted.

See

Williams, 458 F.3d at 70.
Fifth,

Rachelson’s

2012

use

of

a

racial

epithet

is

insufficient because it occurred before than April 23, 2014, 300
days

before

the

date

of

Ray’s
40

February

2015

EEOC

intake

questionnaire.

Ray’s allegations of subsequent discriminatory

acts do not bring that act within the 300-day period.

See Chin,

685 F.3d at 157.
Sixth, the refusal to replace Ray’s chair does not rise to
the level of an adverse employment action.
provide
precludes

equipment”
job

that

“significantly

performance,

or

creates

While “a refusal to
interferes

unreasonably

with

or

dangerous

conditions,” may amount to an adverse employment action, courts
have generally held “that the failure to provide the desired
equipment does not constitute an adverse employment action” when
“the equipment at issue is more desirable, but the job can be
performed without it.”

Dauer v. Verizon Commc’ns, Inc., 613 F.

Supp. 2d 446, 456-57 (S.D.N.Y. 2009) (Gardephe, J.) (internal
quotation marks omitted), vacated and remanded on other grounds
sub nom. Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112.
While a more functional chair would unquestionably have been
preferable, the FAC lacks any allegation that the broken chair
went

beyond

substantially

merely

causing

interfered

with

Ray
her

unreasonably dangerous conditions.
continued

to

“satisfactor[il]y

discomfort
job

such

performance

that
or

it

created

Indeed, the fact that Ray
perform[]

her

duties

and

responsibilities,” FAC ¶ 16, following the denial of her request
for a new chair would strongly suggest that the denial of a new
chair did not significantly interfere with her job performance.
41

Accordingly, Ray has not plausibly alleged that the denial of her
request for a new chair amounts to an adverse employment action.
Seventh, the denial of Ray’s request to work from a different
location -- even assuming beyond the FAC that it inconvenienced
Ray -- is not an adverse employment action.

See Formilien v. Beau

Dietl & Assocs., Inc., No. 10 Civ. 3077 (NRB), 2012 WL 2359819, at
*10 (“Even where the inconvenient location of the new workplace
combines with less favorable hours of employment, a transfer may
not amount to an adverse employment action.”); Antonmarchi, 2008
WL 4444609, at *15; Johnson v. Eastchester Union Free Sch. Dist.,
211 F. Supp. 2d 514, 518 (S.D.N.Y. 2002) (Stein, J.).

This

principle applies with particular force here, where the requested
transfer was only temporary and pertained only to a limited number
of days.
Eighth, Mirabella’s assault is not an adverse employment
action.

The Second Circuit has concluded that allegations that a

supervisor

“grabbed

the

plaintiff’s

arm,

punched

him

in

the

shoulder and the chest, spit in his face, and poked him in the
eye” such that the plaintiff subsequently “required eye surgery,”
Mathirampuzha, 548 F.3d at 73, did not amount to an adverse
employment

action

for

discrimination

purposes,

id.

at

79.

Mirabella’s physical encounter with Ray “is certainly no more
severe than the encounter at issue in Mathirampuzha, and thus is
not an adverse employment action.”
42

Benjamin v. City of Yonkers,

No. 13 Civ. 8699 (VB), 2014 WL 6645708, at *7; see also Sethi v.
Narod, 12 F. Supp. 3d 505, 527 (E.D.N.Y. 2014) (Brodie, J.)
(rejecting supervisor violence as basis for adverse action).
Ninth, the interrogation by Alice Siegel and Jackie Herman is
not an adverse employment action, particularly because it was
unaccompanied by any disciplinary action or other lasting effects
on Ray’s standing at work.

See Hoag, 279 F. Supp. 3d at 477

(“[B]eing ‘singled out for excessive scrutiny and discipline’ was
not [an] adverse employment action.” (quoting Bowen-Hooks v. City
of New York, 13 F. Supp. 3d 179, 216-17 (E.D.N.Y. 2014) (Brodie,
J.))); Chinnery v. N.Y. State Office of Children & Family Servs.,
No. 10 Civ. 882 (DAB)(FM), 2014 WL 1651950, at *9 (S.D.N.Y. Apr.
25, 2014) (“[T]he ‘mere inconvenience’ of being questioned . . .
does not constitute an adverse employment action.”), report &
recommendation adopted, 2015 WL 1029601 (S.D.N.Y. Mar. 10, 2015).
Finally, Rachelson’s testimony against Ray at the WCB hearing
four months after her termination is not an adverse employment
action.

Even assuming a post-termination action can effect a

change in the “terms and conditions” of Ray’s employment (which
had, by construction, already ended at that time), Vega, 801 F.3d
at 85, the FAC alleges no loss of benefits such that it impacted
those terms and conditions of employment, see Campbell, 93 F. Supp.
3d at 170.

43

Ray’s termination is therefore the only cognizable adverse
employment action pleaded in the FAC, and we proceed to consider
whether Ray has plausibly alleged that her race “was a motivating
factor in the employment decision,” Vega, 801 F.3d at 86.
inference

of

discrimination

can

arise

from

“An

circumstances

including, but 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

discharge.”

the

sequence

of

events

leading

to

the

plaintiff’s

Littlejohn, 795 F.3d at 312 (quoting Leibowitz v.

Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)).

Additionally,

as relevant here, “an inference of discrimination also arises when
an employer replaces a terminated or demoted employee with an
individual outside the employee’s protected class.”

Id. at 312-

13.
The Fund contends that no inference of discrimination arises
here because Ray has failed to plead that the white co-workers
receiving better treatment were similarly situated to her.
Fund

is

correct

in

arguing

that,

at

summary

judgment,

The
“[a]

plaintiff relying on disparate treatment evidence must show she
was similarly situated in all material respects to the individuals
with whom she seeks to compare herself.”

Raspardo, 770 F.3d at

126 (quoting Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d
44

Cir. 2003)), but whether a plaintiff must carry a similar burden
at the motion to dismiss stage is hardly settled, 23 see Nguedi v.
Fed. Reserve Bank of N.Y., No. 16 Civ. 636 (GHW), 2017 WL 5991757,
at *6 (S.D.N.Y. Dec. 1, 2017)

(“[T]here appears to be a developing

question in the Circuit . . . : must a plaintiff allege specific
facts showing that the comparators are similarly situated in all
material respects or are less detailed notice pleadings regarding
relevant comparators sufficient to give rise to an inference of
discrimination?”).

While “[n]umerous courts within the Second

Circuit have granted motions to dismiss disparate treatment claims
where the complaint was entirely devoid of any details regarding
the purported comparators, e.g., who they are, what their positions
or responsibilities were at the company, how their conduct compared
to plaintiffs’ or how they were treated differently by defendants,”
Blige v. City Univ. of New York, No. 15 Civ. 8873 (GBD)(KHP), 2017
WL 498580, at *9 (S.D.N.Y. Jan. 19, 2017) (internal quotation marks
omitted) (alterations incorporated), report and recommendation
adopted, 2017 WL 1064716 (S.D.N.Y. Mar. 21, 2017), and the Second
Circuit has also so required in a number of nonprecedential summary
orders, see, e.g., Kpaka v. City Univ. of N.Y., 708 F. App’x 703,
705 (2d Cir. 2017); Marcus v. Leviton Mfg. Co., 661 F. App’x 29,

23 Indeed, given that the Supreme Court and Second Circuit have directed
distinct modes of analysis for employment discrimination cases at the motion to
dismiss stage and those at the summary judgment stage, the Fund’s reliance on
cases addressing summary judgment in support of such a rule are not entirely
persuasive.

45

32 (2d Cir. 2016); other courts have held to the contrary, see,
e.g., Yang v. Dep’t of Educ., No. 14 Civ. 7037 (SLT), 2016 WL
4028131 (E.D.N.Y. July 26, 2016) (“[T]he the law does not require
detailed

pleadings

regarding

the

similarly

situated

comparators.”).
However, we need not definitively resolve this question, as
the FAC fails to plausibly allege an inference of discrimination
regardless.

To the extent that a plaintiff is required to plead

that comparators are similarly situated, the FAC falls well short.
Ray’s allegations referencing a comparator discuss only the race
of the comparator and the comparator’s conduct, with no allegation
that the comparator is otherwise similarly situated.
38, 45, 50, 61-62.

FAC ¶¶ 36,

But even to the extent that a plaintiff need

not plead similarity in situation, the FAC still falls short.
While Ray does allege that certain Fund employees (who are white)
were better treated than she was, those allegations related only
to other discriminatory acts and not her termination.
That

is,

Ray

does

not

allege

that

a

similarly

situated

comparator outside her protected class was not terminated, nor
does she allege that she was replaced by an employee outside her
protected class.

Accordingly, any inference of discrimination

raised by the FAC requires, at minimum, two steps: (1) that Ray’s
race was a motivating factor for her less-favorable treatment on
other occasions, and (2) that such race-based motivation can be
46

extrapolated to her termination.

While this two-part inference

could conceivably be sufficient to withstand a motion to dismiss
under a different set of allegations, its plausibility here is
significantly

undermined

by

the

fact

that

the

less-favorable

treatment that Ray alleges she experienced is dispersed over a
period of numerous years and was caused by a number of different
individuals. 24

We therefore conclude that Ray has not plausibly

alleged that her race was a motivating factor in her termination.
Because Ray’s termination is the only adverse employment action
that the FAC pleads, her discrimination claim is also dismissed.
III. Conclusion
The Fund’s motion to dismiss is granted in its entirety.
Ray’s NYSHRL claims are barred by the Eleventh Amendment, her Title
VII hostile work environment claim fails because she failed to
exhaust her administrative remedies, and her Title VII retaliation
claim fails because she not does not plausibly allege that she
experienced an adverse employment action because of her engagement
in protected activities.

To the extent the FAC can be interpreted

to assert a discrimination claim based on disparate treatment,
that claim also fails because the FAC does not raise a plausible
inference of discriminatory motive for the one cognizable adverse
employment action that it adequately alleges.

24 For the same reason, even if Mirabella’s October 14, 2014 assault
constituted an adverse employment action, the FAC does not raise the plausible
inference that the assault was racially motivated.

47

Ray has previously been afforded an opportunity to amend her
complaint in order to cure the alleged deficiencies identified by
the Fund’s first pre-motion letter, which sought to dismiss Ray’s
original complaint and raised many of the deficiencies forming the
basis of our decision here.

See Order, June 8, 2017, ECF No. 37;

Letter from D. Stan O’Laughlin to the Court, June 1, 2017, ECF No.
35.

Having had the opportunity to amend once, and having made

only cursory amendments that did not meaningfully address the
deficiencies identified by the Fund, Ray is “not entitled to an
advisory opinion from the Court informing [her] of the [additional]
deficiencies in the complaint and then an opportunity to cure those
deficiencies.”

Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118

(2d Cir. 2007).

Further leave to amend, the scope of which would

be significantly limited by Title VII’s exhaustion requirement and
the

statute

junction.

of

limitations,

is

simply

not

warranted

at

this

See Lopez v. CTPartners Exec. Search Inc., 173 F. Supp.

3d 12, 44 (S.D.N.Y. 2016) (Engelmayer, J.) (“[W]here the problems
with a claim are ‘substantive’ rather than the result of an
‘inadequately or inartfully pleaded’ complaint, an opportunity to
replead would be ‘futile’ and ‘should be denied.’” (quoting Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000))).
Therefore,
prejudice.

Ray’s

Title

VII

claims

are

dismissed

with

However, because we lack subject matter jurisdiction

over Ray’s NYSHRL claims, those claims must be dismissed without
48

prejudice.
123

(2d

See Hernandez v. Conriv Realty Assocs., 182 F.3d 121,
Cir.

199 9)

("[W]here

a

court

lacks

subject

matter

jurisdiction, it also lacks the power to dismiss with prejudice.").
The Clerk of the Court is respectfully directed to terminate
the motion pending at docket entry number 50, to enter judgment in
the Fund's favor,

and to terminate this case. 2 ~

SO ORDERED.

Dated:

New York, New York
July L__f'; 2018

~~~h~
NAMIRErcE BUCHWALD
UNITED STATES DISTRICT JUDGE

25 Though 1t does not affect our resolution of the pending motion (and Ray
1s unl:kely to have been preJudiced because her memorandum of law in opposition
was not constrained in length), the Fund is reminded that Rule 2.D of this
Court's Individual Rules of Practice provide that "[u)nless prior permission
has been gran~ed, memoranda of law in support of and in opposition to motions
are limited to 25 pages, and reply merroranda are limited to 10 pages."
The
Fund's 77-page initial memorandum and 16-page reply memorandum (which also lacks
a table of authorities) were plainly non-compliant.

49