Batiste v. The City University of New York et al

Filing 43

MEMORANDUM OPINION & ORDER re: 24 MOTION to Dismiss the Amended Complaint. filed by The City University of New York, Suri Duitch, 29 MOTION to Dismiss the FIRST AMENDED COMPLAINT. filed by Research Foundation of CUNY, Celeste Clarke: Plaintiff Beverly Batiste brings this action against The City University of New York ("CUNY"), the Research Foundation of The City University of New York ("RFCUNY"), Celeste Clarke ("Clarke"), and Suri D uitch ("Duitch") (collectively, "Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 2 9 U.S.C. § 621 et seq. ("ADEA"), the Executive Law of the State of New York, New York State Human Rights Law, Section 296, et seq. ("NYSHRL"), and the Administrative Code of the City of New York, New York City Human Rights La w, Section 8-101, et seq. ("NYCHRL"). Plaintiff also alleges breach of contract and breach of fiduciary duty. Defendants have moved to dismiss the Complaint for failure to state a claim. For the foregoing reasons, Defendants' motions to dismiss are GRANTED. Plaintiff's ADEA claim alleging age discrimination and Title VII claims alleging a hostile work environment and retaliation are dismissed with prejudice because Plaintiff failed to exhaust her administrative remedies as t o those claims. Plaintiff's Title VII race and color discrimination claims are dismissed without prejudice. If Plaintiff chooses to amend her complaint further, she must do so no later than July 21, 2017, and she must allege facts that go beyond the allegations included in her Amended Complaint and the affidavit filed in support of her opposition to Defendants' motions to dismiss. Because all of Plaintiff's federal claims are dismissed, the Court declines to exercise supplemental jurisdiction over Plaintiff's state and local law claims. The Clerk of Court is respectfully directed to close the open motions at docket entries twenty-four and twenty-nine. ( Amended Pleadings due by 7/21/2017.) (Signed by Judge Valerie E. Caproni on 7/7/2017) (jwh) Modified on 7/7/2017 (jwh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
BEVERLY BATISTE,
:
:
:
Plaintiff,
:
:
-against:
:
THE CITY UNIVERSITY OF NEW YORK,
:
RESEARCH FOUNDATION OF CUNY,
:
CELESTE CLARKE, individually and in her
official capacity, and SURI DUITCH, individually :
:
and in her official capacity,
:
:
Defendants. :
-------------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
7/7/17
DATE FILED:

16-CV-3358 (VEC)
MEMORANDUM
OPINION & ORDER

VALERIE CAPRONI, United States District Judge:
Plaintiff Beverly Batiste brings this action against The City University of New York
(“CUNY”), the Research Foundation of The City University of New York (“RFCUNY”), Celeste
Clarke (“Clarke”), and Suri Duitch (“Duitch”) (collectively, “Defendants”), alleging violations
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title
VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), the
Executive Law of the State of New York, New York State Human Rights Law, Section 296, et
seq. (“NYSHRL”), and the Administrative Code of the City of New York, New York City
Human Rights Law, Section 8-101, et seq. (“NYCHRL”). Plaintiff also alleges breach of
contract and breach of fiduciary duty. Defendants have moved to dismiss the Complaint for
failure to state a claim. For the following reasons, Defendants’ motions are GRANTED.

BACKGROUND1
Plaintiff, a black female over the age of forty, was employed by RFCUNY between May
1, 2002 and October 26, 2015. Am. Compl. ¶¶ 29, 74 (Dkt. 15). RFCUNY is a private, not-forprofit education corporation that supports CUNY faculty and staff in identifying, obtaining and
administering government and private funding. Decl. of Christopher G. Gegwich in Supp. of
RFCUNY and Clarke’s Mot. to Dismiss the First Am. Compl. (“Gegwich Decl.”), Ex. A (Dkt.
30-1). When employed by RFCUNY, Plaintiff provided office support and handled programs
and office operations at CUNY and RFCUNY. Am. Compl. ¶¶ 31, 32. As of June 2012,
Plaintiff’s title was Administrative Assistant, but she performed tasks generally given to office
managers and assistant managers. Id. ¶¶ 33, 34. Plaintiff’s job performance was excellent. Id. ¶
35.
In May 2015, Clarke became Plaintiff’s direct supervisor. Id. ¶ 36. Clarke and her
supervisor, Duitch, recognized that Plaintiff’s salary and title did not match the work she was
performing. Id. ¶¶ 38, 41, 42. To that end, on July 20, 2015, Clarke told Plaintiff that she
“wanted to discuss . . . getting [Plaintiff’s] job title changed to reflect [her] job duties and a
salary increase.” Id. ¶ 44. Instead of receiving a promotion, however, on August 11, 2015, in a
meeting with Clarke and Duitch, Plaintiff received a Corrective Action Plan (“CAP”). Id. ¶ 45.
Pursuant to the CAP, Plaintiff was required to improve her performance by November 3, 2015,
or face disciplinary action, including termination. Id. ¶ 51. During the August 11 meeting,
Duitch threw a pen on the table in the direction of Plaintiff. Id. ¶ 46. There were no complaints
or write-ups against Plaintiff before or during the time Clarke and Duitch were Plaintiff’s
supervisors; Plaintiff believes Defendants’ “malicious and discriminatory intent[,]” rather than

1

The facts are taken from the Amended Complaint, and for purposes of this motion, are assumed to be true.
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).

2

Plaintiff’s performance, was the reason for the CAP. Id. ¶¶ 49, 50, 52. Clarke accused Plaintiff
of being disrespectful when she learned she was not being promoted. Id. ¶ 55.
The following day, Plaintiff complained to Eric Hoffman (“Hoffman”), the University
Director for Collaborative Programs, about the unfair and inaccurate write-up she had received.
Id. ¶ 53. Plaintiff also complained to Duitch about Clarke and the CAP, but Duitch refused to
accept Plaintiff’s rebuttal to the CAP or her complaint, declined to conduct an investigation, and
suggested it would be a waste of time to submit a rebuttal. Id. ¶¶ 58, 59. Plaintiff also
complained to the Senior Director of Human Resources, who refused to review Plaintiff’s
complaint because it was “voluminous.” Id. ¶¶ 60, 61. The Amended Complaint does not allege
that any of these complaints referenced discrimination. Id. ¶¶ 53, 58-61.
In September 2015, as requested by Clarke, Plaintiff scheduled an exterminator to come
to the building where she worked. Id. ¶¶ 63, 64. Clarke also ordered an exterminator. Id. ¶ 65.
As a result of the duplicative exterminators, Plaintiff received another CAP on October 8, 2015.
Id. ¶ 62; Decl. of Rudy A. Dermesropian in Opp. to RFCUNY and Clarke’s Mot. to Dismiss
(“Dermesropian Decl. Opp. RFCUNY”), Ex. 3 (Dkt. 35-3). On October 26, 2015, Clarke and
Duitch terminated Plaintiff’s employment. Id. ¶ 74.
Plaintiff alleges the following facts to support her claim that she was discriminated
against: an Asian female who reported directly to Clarke, Mary Louie, had “performance issues”
but received a promotion and salary increase rather than being terminated, id. ¶ 69; Hoffman told
Plaintiff that John Mogulescu, a Dean at CUNY (“Dean Mogulescu”), had stated, in substance,
that Plaintiff, as a black woman, needed to be supervised by a black woman, id. ¶ 70; and
Plaintiff was replaced by a younger employee. Id. ¶ 79.
After being terminated, Plaintiff filed a charge of race discrimination against CUNY with
the U.S. Equal Employment Opportunity Commission (“EEOC”). Dermesropian Decl. Opp.
3

RFCUNY, Ex. 3. Plaintiff did not name RFCUNY in the EEOC charge, and Plaintiff selected
only “race discrimination” among the options provided on the EEOC charge form. Id. The
EEOC dismissed the charge in January 2016. Gegwich Decl., Ex. C (Dkt. 30-3).
On July 14, 2016, Plaintiff filed an Amended Complaint with this Court. She brings a
mélange of claims against Defendants, but she brings federal law claims against only CUNY and
RFCUNY. Plaintiff brings Title VII claims for race and color discrimination, hostile work
environment, and retaliation against CUNY and RFCUNY; Plaintiff brings similar claims against
Clarke and Duitch, but pursuant to NYSHRL and NYCHRL. Plaintiff brings an ADEA age
discrimination claim against only RFCUNY, an NYSHRL age discrimination claim against all
Defendants, and an NYCHRL age discrimination claim against RFCUNY, Clarke, and Duitch.
Finally, Plaintiff alleges a breach of contract claim against CUNY and RFCUNY.
DISCUSSION
For the reasons discussed below, Plaintiff’s Title VII and ADEA claims against CUNY
and RFCUNY are dismissed. Plaintiff failed to exhaust administrative remedies with respect to
her claims for age discrimination, hostile work environment, and retaliation, and she failed to
allege sufficient facts to state a plausible claim for race, color, or age discrimination, hostile
work environment, or retaliation pursuant to Title VII and the ADEA. Because the Court
dismisses all of Plaintiff’s federal law claims, the Court declines to exercise supplemental
jurisdiction over the remaining state and local law claims. See 28 U.S.C. § 1367(c)(3) (“The
district courts may decline to exercise supplemental jurisdiction over a claim . . . if the district
court has dismissed all claims over which it has original jurisdiction.”).
I.

Legal Standard
In reviewing a motion to dismiss under Rule 12(b)(6), courts “accept all factual

allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.”
4

Meyer v. JinkoSolar Holdings Co., Ltd., 761 F.3d 245, 249 (2d Cir. 2014) (quoting N.J.
Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119 (2d Cir. 2013)
(alterations omitted)). To survive a motion to dismiss for failure to state a claim upon which
relief can be granted, “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 has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556). “At this stage, dismissal is appropriate only where [Plaintiff] can prove no set
of facts consistent with the complaint that would entitle [her] to relief.” Meyer, 761 F.3d at 249.
II.

Failure to Exhaust Administrative Remedies
Although Plaintiff exhausted her administrative remedies with respect to her race and

color discrimination claims against CUNY and RFCUNY, she failed to exhaust her age
discrimination, hostile work environment, and retaliation claims.
A. Absence of RFCUNY in the EEOC Complaint
In order to bring a federal lawsuit under Title VII or the ADEA, a plaintiff must first
exhaust her administrative remedies with the EEOC. 42 U.S.C. § 2000e-5(e); Johnson v. Palma,
931 F.2d 203, 209 (2d Cir. 1991) (Title VII); 29 U.S.C. § 626(d); Holowecki v. Fed. Exp. Corp.,
440 F.3d 558, 562 (2d Cir. 2006) (ADEA). In general, a plaintiff may not bring a civil suit under
Title VII or the ADEA against a party not named as a respondent in the EEOC charge. France v.
Touro Coll., No. 14 CIV. 4613 (NGG) (CLP), 2016 WL 1105400 at *4 (E.D.N.Y. Feb. 16, 2016)
(Title VII); Hanley v. Chi. Title Ins. Co., No. 12 CIV. 4418 (ER), 2013 WL 3192174 at *4
(S.D.N.Y. June 24, 2013) (ADEA). There is an exception to the general rule which permits a
plaintiff to proceed with a Title VII or ADEA action against a party not named in the EEOC
5

charge “where there is a clear identity of interest between the unnamed defendant and the party
named in the administrative charge.” Johnson, 931 F.2d at 209 (Title VII); see also Jackson v.
N.Y.C. Transit, No. 05 CIV. 1763 (FBLB), 2005 WL 2664527, at *3 (E.D.N.Y. Oct. 19, 2005)
(ADEA).
The Second Circuit has adopted a four part test to determine whether an identity of
interest exists, taking into consideration:
1) whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint; 2)
whether, under the circumstances, the interests of a named [party] are so similar
as the unnamed party’s that for the purpose of obtaining voluntary conciliation
and compliance it would be unnecessary to include the unnamed party in the
EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted
in actual prejudice to the interests of the unnamed party; 4) whether the unnamed
party has in some way represented to the complainant that its relationship with the
complainant is to be through the named party.
Johnson, 931 F.2d at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.
1977)). In addition to these factors, Johnson implied a fifth factor relevant to the identity of
interest inquiry: whether the defendant, although not named as a respondent in the caption, is
named in the body of the charges as having played a role in the discrimination. Hanley, 2013
WL 3192174, at *5. “This multi-factor test is not a mechanical one, and no single factor is
dispositive.” Zustovich v. Harv. Maint., Inc., No. 08 CIV. 6856 (HB), 2009 WL 735062, at *8
(S.D.N.Y. Mar. 20, 2009).
In the present case, there is an identity of interest between RFCUNY and CUNY. First,
the roles of RFCUNY and CUNY are overlapping and somewhat unclear. Plaintiff alleges that
CUNY exercises control over RFCUNY’s employees, Am. Compl. ¶ 30, and RFCUNY “works
closely with CUNY” in its mission to support CUNY faculty and staff in identifying, obtaining,
and administering outside funding. Gegwich Decl., Ex. A (Dkt. 30-1). “Thus, is it not surprising
that an employee might not understand, in filing an EEOC complaint, that both [RFCUNY] and
6

[CUNY] should be named.” Zhao v. State Univ. of N.Y., 472 F. Supp. 2d 289, 305 (E.D.N.Y.
2007).
Second, under the circumstances of this case, RFCUNY and CUNY have similar interests
with respect to conciliation and compliance. Clarke, an employee of RFCUNY, and Duitch, an
employee of CUNY, were both directly involved in Plaintiff’s termination, Am. Compl. ¶ 74,
and Plaintiff described Clarke’s involvement in the EEOC charge. Dermesropian Decl., Opp.
RFCUNY, Ex. 3. Clarke and Duitch’s joint involvement in Plaintiff’s termination establishes
that RFCUNY and CUNY possess “a commonality of interests.” See Dortz v. City of N.Y., 904
F. Supp. 127, 143 (S.D.N.Y 1995) (finding the second element satisfied because employees of
the unnamed party “were directly involved in the events giving rise to th[e] action”).
RFCUNY argues that RFCUNY and CUNY do not share common interests and that
Plaintiff was required to name RFCUNY in the EEOC complaint because the National Labor
Relations Board (“NLRB”) has determined that RFCUNY and CUNY are not a single employer.
Res. Found. of The City Univ. of N.Y., 337 NLRB. 965, 971 (2002). The NLRB’s finding is not
dispositive, however. Different tests apply to determine whether two entities constitute a single
employer, and thus share liability under Title VII, and whether two entities share an identity of
interest, and thus need not both be named in EEOC complaints. See Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235, 1241-42 (2d Cir. 1995) (adopting the NLRB test to assess single
employer status and separately examining the Johnson factors to assess identity of interest). The
NLRB test looks at objective criteria to determine whether two entities constitute a single
employer, Res. Found., 337 NLRB. at 970, while the Johnson test takes into consideration both
the plaintiff’s subjective understanding and objective factors. The relevant distinction is that the
second Johnson factor requires a case-specific assessment of the two entities’ interests. See
Johnson, 931 F.2d at 209-10 (“whether, under the circumstances, the interests of a named [party]
7

are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in the EEOC proceedings”)
(emphasis added). Notwithstanding NLRB’s general finding that RFCUNY’s labor relations
policies and practices are independently administered by RFCUNY, Res. Found., 337 NLRB at
971, in this case it is clear that the two entities share a similar interest with respect to conciliation
and compliance.
With respect to the third factor, because the EEOC dismissed Plaintiff’s charge, there is
no indication that RFCUNY was prejudiced by not being named in the charge. See Perez v. Int’l
Bhd. of Teamsters, AFL-CIO, No. 00 CIV. 1983 (LAP) (JCF), 2002 WL 31027580, at *7
(S.D.N.Y. Sept. 11, 2002) (“[T]he EEOC dismissed plaintiff’s charge because it was unable to
determine that [the named defendant] violated the statutes, so there is no evidence the [unnamed
defendant] was prejudiced.”). As to the fourth factor, although Plaintiff believes that CUNY
exercises control over RFCUNY employees, Am. Compl. ¶ 30, there is no indication that
RFCUNY represented to Plaintiff in any way that its relationship with Plaintiff was to be through
CUNY.
Finally, Plaintiff satisfied the implicit fifth factor, which considers whether the defendant
was, at a minimum, named in the body of the EEOC charge. While Plaintiff did not name
RFCUNY in the body of the EEOC charge, Plaintiff did name Clarke, an employee of RFCUNY,
and Plaintiff described Clarke’s role in the alleged discrimination. The fact that Clarke was
named in the EEOC complaint should have given RFCUNY notice that it was potentially liable
for Clarke’s conduct. Zustovich, 2009 WL 735062, at *9.
Because only the fourth Johnson factor weighs in favor of Defendants, the Court finds
that the identity of interest exception applies. See Zhao, 472 F. Supp. 2d at 306 (finding identity
of interest exception applicable where only the fourth factor favored defendants). As such, any
8

administrative remedies for particular claims exhausted against CUNY will be deemed to have
been exhausted against RFCUNY as well.
B. Failure to Exhaust Administrative Remedies for Particular Claims
Plaintiff failed to exhaust her claims against CUNY and RFCUNY for age
discrimination, hostile work environment, and retaliation. A district court has jurisdiction to hear
Title VII and ADEA claims that either are included in an EEOC charge or are based on conduct
that is “reasonably related” to that alleged in the EEOC charge. Terry v. Ashcroft, 336 F.3d 128,
151 (2d Cir. 2003) (ADEA); Butts v. City of N.Y. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397,
1401 (2d Cir. 1993) (Title VII). There are three situations in which claims not raised in an
EEOC charge will be deemed “exhausted”:
1) where the conduct complained of would fall within the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination; 2) where the complaint is one alleging retaliation by an employer against
an employee for filing an EEOC charge; and 3) where the complaint alleges further
incidents of discrimination carried out in precisely the same manner alleged in the EEOC
charge.
Butts, 990 F.2d at 1402-03 (internal quotation marks omitted).
Plaintiff’s claim of color discrimination falls into the first of the above categories and
thus was properly exhausted. See Clements v. St. Vincent’s Hosp. and Med. Ctr. of N.Y., 919 F.
Supp. 161, 164 (S.D.N.Y. 1996) (“A color discrimination claim and a race discrimination claim
are ‘of the same type and character’ such that ‘the defendant cannot claim to be unfairly
surprised by the allegation of [color] discrimination.’”) (quoting Avagliano v. Sumitomo Shoji
Am., 614 F. Supp. 1397, 1403 (S.D.N.Y. 1985)). In contrast, Plaintiff’s age discrimination,
hostile work environment, and retaliation claims are not sufficiently related to the race
discrimination claim described in the EEOC charge, and thus, have not been exhausted.

9

i. Age Discrimination
Plaintiff’s age discrimination claim is not reasonably related to the claim of race
discrimination that she filed with the EEOC. While the Amended Complaint states that Plaintiff
filed a timely complaint of discrimination with the EEOC, Am. Compl. ¶ 27, the EEOC charge
itself makes absolutely no reference to age discrimination, Dermesropian Decl. Opp. RFCUNY,
Ex. 3. Instead, Plaintiff complained to the EEOC that “management is biased against [her]
because [she is] black.” Id.
Because nothing in Plaintiff’s charge provided the EEOC with notice of possible age
discrimination, Plaintiff’s claim that she was discriminated against based on age does not fall
within the scope of the EEOC investigation that one could reasonably expect to grow out of the
EEOC charge. See Littlejohn v. City of New York, 795 F.3d 297, 324 (2d Cir. 2015) (affirming
the district court’s dismissal of a sexual harassment claim because the EEOC charge only
claimed race discrimination); Carter v. New Venture Gear, Inc., 310 F. App’x. 454, 458 (2d Cir.
2009) (plaintiff could not bring gender discrimination claims because the EEOC charge only
raised race-based complaints); Givens v. City of New York, No. 11 CIV. 2568 (PKC)(JCF), 2012
WL 75027, at *6 (S.D.N.Y. Jan. 10, 2012) (“[a]llegations of new acts of discrimination, offered
as the essential basis for the requested judicial review are not appropriate.”) (internal quotation
marks omitted). Nor does Plaintiff’s age discrimination claim fall into the second or third Butts
categories because Plaintiff alleges that age discrimination occurred before she filed the EEOC
charge.
ii. Hostile Work Environment
Plaintiff also failed to exhaust her administrative remedies with respect to her Title VII
hostile work environment claim. “To present a hostile work environment claim to the EEOC, a
plaintiff must have alleged facts sufficient to suggest ‘a pervasive, abusive environment upon
10

which a rational trier of fact could find that he was subjected to a hostile work environment due
to his [membership in a protected class].’” 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) (quoting Bazile v. City of
N.Y., 215 F. Supp. 2d 354, 361 (S.D.N.Y. 2002)).
Plaintiff’s EEOC charge contains nothing to suggest that she was the victim of a hostile
work environment. Aside from a single conclusory assertion that Plaintiff was “harassed . . . in
violation of Title VII,” the allegations in the EEOC charge suggest only that Plaintiff’s job
performance was unfairly and inaccurately criticized on two occasions and that the motives
behind Plaintiff’s eventual termination were questionable. See Dermesropian Decl. Opp.
RFCUNY, Ex. 3 (“[T]he unfair write-up was writhe with inaccuracies”; “My supervisor,
inaccurately portrayed [a telephone] conversation as one in which I was either disrespectful for
hanging-up the telephone or not being receptive to her criticism”; “[M]y supervisor incorrectly
concluded, I had not [completed a task].”). Plaintiff’s hostile work environment claims are not
reasonably related to the claims raised in the EEOC complaint, which mention only several
discrete instances of general unfair treatment. See Perez v. N.Y. and Presbyterian Hosp., No. 05
CIV. 5749 (LBS), 2009 WL 3634038, at *10 (S.D.N.Y. Nov. 3, 2009) (“[T]he allegations in the
EEOC charge relate solely to several discrete instances of alleged discrimination or retaliation,
which are insufficient to exhaust a hostile work environment claim.”) Nor does Plaintiff’s
hostile work environment claim fall into the second or third Butts categories because Plaintiff
alleges that the hostile work environment existed before she filed the EEOC charge.
iii. Retaliation
Plaintiff’s retaliation claim is also not reasonably related to the allegation of racial
discrimination. Although Plaintiff’s EEOC charge mentions that Plaintiff complained internally,
nowhere does it suggest that Plaintiff was terminated because of her complaints; rather, the
11

charge states “[i]t is my contention that management is biased against me because I am Black.”
Dermesropian Decl. Opp. RFCUNY, Ex. 3. “Where the EEOC charge alleges discrimination but
not retaliation, the reasonable scope of the agency’s investigation cannot be expected to
encompass allegations of retaliatory motive.” Gambrell v. Nat’l R.R. Passenger Corp., No. 01
CIV. 6433 (NRB), 2003 WL 282182, at *8 (S.D.N.Y. Feb. 3, 2003); see also Batista v.
DeGennaro, No. 13 CIV. 1099 (DAB), 2014 WL 1046735, at *6 (S.D.N.Y. Mar. 10, 2014)
(plaintiff could not bring a retaliation claim where the EEOC charge failed to put the EEOC on
notice that plaintiff had engaged in protected activity). The second Butts category is not
applicable because Plaintiff alleges retaliation only for filing internal complaints before being
terminated, not for filing the EEOC complaint after her termination. The third category is also
inapplicable because Plaintiff’s retaliation claim is not a further incident of retaliation “carried
out in precisely the same manner alleged in the EEOC charge.” Terry, 336 F.3d at 151 (quoting
Butts, 990 F.2d at 1402-03).
In sum, Plaintiff failed to exhaust her administrative remedies with respect to age
discrimination, hostile work environment, and retaliation, and the Court therefore lacks
jurisdiction over those claims. Even if the Court assumes, arguendo, that those claims are
reasonably related to the race and color discrimination claims filed with the EEOC, they would
be dismissed under Rule 12(b)(6), as explained below.
III.

Failure to Allege Sufficient Facts to State a Plausible Claim
A. Title VII
Title VII prohibits employers from discriminating on the basis of race, color, religion,

sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging discrimination in
violation of Title VII must “include reference to sufficient facts to make [her] claim
plausible . . . in light of the presumption that arises in plaintiff’s favor [under McDonnell
12

Douglas v. Green, 411 U.S. 792, 802 (1973)] in the first stage of the litigation.” Littlejohn, 795
F.3d at 310. “[W]hile a discrimination complaint need not allege facts establishing each element
of a prima facie case of discrimination to survive a motion to dismiss, it 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) (citations and internal quotation marks omitted). The elements of a prima facie case
are “an outline of what is necessary to render [a plaintiff’s employment discrimination] claims
for relief plausible.” Yan v. Ziba Mode Inc., No. 09-cv-3000 (BSJ) (AJP), 2016 WL 1276456, at
*4 (S.D.N.Y. Mar. 29, 2016) (citations and internal quotation marks omitted).
Accordingly, “what must be plausibly supported by facts alleged in the complaint is that
the plaintiff is a member of a protected class, was qualified, suffered an adverse employment
action, and has at least minimal support for the proposition that the employer was motivated by
discriminatory intent.” Littlejohn, 795 F.3d at 311. The alleged facts “need only give plausible
support to a minimal inference of discriminatory motivation.” Id.. Nonetheless, a complaint is
properly dismissed if the plaintiff fails “to plead any facts that would create an inference that any
adverse action taken by any defendant was based upon [a protected characteristic of the
plaintiff].” Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (per curiam) (internal quotation
marks omitted).
Plaintiff’s allegations satisfy only three of the required elements. Plaintiff is a member of
a protected class as “a light-skinned Black female,” Am. Compl. ¶ 3, and Plaintiff suffered an
adverse employment action when she was terminated.2 Am. Compl. ¶ 74. Although Defendants

2

Plaintiff contends the CAPs were adverse employment actions. Pl. Mem. in Opp. to CUNY and Duitch, at
16. “Excessive scrutiny” normally “does not rise to the level of an adverse employment action,” Nidzon v. Konica
Minolta Bus. Solutions, USA, Inc., 752 F. Supp. 2d 336, 350 (S.D.N.Y. 2010), but a negative performance
evaluation may constitute an adverse employment action if it is “accompanied by negative consequences, such as
demotion, diminution of wages, or other tangible loss[.]” Siddiqi v. N.Y.C. Health & Hosps. Corp., 572 F. Supp. 2d

13

disagree with Plaintiff’s assertion that her performance was excellent, the Court finds that
Plaintiff has adequately alleged that she was qualified for her position inasmuch as she was
employed by RFCUNY for over thirteen years. See Mira v. Argus Media, No. 15-CV-9990
(RJS), 2017 WL 1184302, at *4 (S.D.N.Y. Mar. 29, 2017) (“[T]he fact that Mira worked at
Argus for nearly a year and a half suggests that this element was likewise adequately pleaded.”)
The Amended Complaint founders on the final element, however, because it does not allege facts
that “give plausible support to a minimal inference of discriminatory motivation.” Littlejohn, 795
F.3d at 311.
i. Race and Color Discrimination
“An inference of discrimination can arise from 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 the sequence of events leading to the
plaintiff’s discharge.’” Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d
487, 502 (2d Cir. 2009)). Aside from a number of conclusory statements,3 the Amended
Complaint contains only two factual allegations that even remotely relate to race or color
discrimination, and they do not suffice to raise an inference of such discrimination.

353, 367 (S.D.N.Y. 2008). Thus, it is conceivable that a CAP could be an adverse employment action. See Gordon
v. City of N.Y., No. 14 CIV. 6115 (JPO), 2015 WL 3473500, at *12 (S.D.N.Y. June 2, 2015) (holding a CAP
constituted an adverse employment action where the plaintiff alleged “specific negative consequences from [the]
scrutiny”). In this case, however, Plaintiff only vaguely alleges that the first CAP was “detrimental to [her] job and
career,” without providing any specific adverse consequences of the CAP. Am. Compl. ¶ 58. But even if the CAPs
were adverse employment actions, Plaintiff has not plead facts that create an inference that the CAPs or her
termination were motivated by race or age discrimination, as discussed below.
3

See, e.g., Am. Compl. ¶ 52 (“The CAP was clearly biased and a pretext for Defendants’ malicious and
discriminatory intents.”); id. ¶¶ 56-57 (“Plaintiff was also accused of not responding to items with the appropriate
amount of emotions. With such egregious and juvenile accusations, Defendants’ underlying malicious and
discriminatory intents were apparent.”)

14

The Amended Complaint alleges that Hoffman told Plaintiff that Dean Mogulescu had
said to him that “[Plaintiff] is a black woman, so she needs to be supervised by a black woman so
she can better handle her.” Am. Compl. ¶ 70. This allegation is inadequate to raise an inference
that Plaintiff was terminated on account of her race. In determining whether a statement is
“probative of discriminatory intent,” courts often consider the following factors: “(1) who made
the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark
was made in relation to the employment decision at issue; (3) the content of the remark (i.e.,
whether a reasonable juror could view the remark as discriminatory); and (4) the context in
which the remark was made (i.e., whether it was related to the decision-making process).”
Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010).
Here, Plaintiff’s allegation that Dean Mogulescu stated that Plaintiff needed to be
supervised by a black woman fails to raise an inference of discriminatory motivation. Plaintiff
does not allege that Dean Mogulescu was a decision-maker with respect to Plaintiff’s
termination, and the Amended Complaint is silent concerning the temporal proximity of the
remark to Plaintiff’s termination. Although a reasonable juror could view the remark as
discriminatory, the Amended Complaint provides no context for the Dean’s statement nor does it
allege how, if at all, the statement was related to Defendants’ decision to terminate Plaintiff. In
short, Dean Mogulescu’s statement appears to be a stray remark that lacks any causal nexus to
Defendants’ decision to terminate Plaintiff.4 See Yan, 2016 WL 1276456, at *4 (finding that
derogatory statements were “stray remarks” and insufficient to raise an inference of
discriminatory motive where the plaintiff did not demonstrate how such comments affected or

4

Plaintiff argues that Dean Mogulescu made this remark “around the same time” Clarke and Duitch became
Plaintiff’s supervisors, which was five months before Plaintiff’s termination. Pl. Mem. in Opp. to RFCUNY and
Clarke, at 13. The Court need not decide whether that temporal connection would be sufficient to establish the
requisite causal nexus to the decision to terminate the Plaintiff (although it is highly skeptical that it would) because
Plaintiff failed to include that fact in the Amended Complaint.

15

were related to the termination decision). Thus, Dean Mogulescu’s alleged statement fails to
raise an inference of discriminatory motivation.
The Amended Complaint also alleges that “[an]other direct report[] of Clarke, . . . Mary
Louie, an Asian female, exhibited performance issues but was not treated similarly to Plaintiff
and was not terminated, but instead was promoted and received a salary increase.” Am. Compl.
¶ 69. This allegation is equally inadequate to raise an inference that Plaintiff was terminated on
account of her race. “An inference of discrimination can arise from circumstances
including . . . more favorable treatment of employees not in the protected group.” Littlejohn, 795
F.3d at 312 (internal quotation marks omitted). But, a plaintiff claiming disparate treatment must
allege facts to establish that “she was similarly situated in all material respects to the individuals
with whom she seeks to compare herself.” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir.
2003) (internal quotation marks omitted). While the Amended Complaint states that Louie was a
“direct report” of Clarke, there is no allegation that Plaintiff and Louie had similar job
descriptions or responsibilities, a prerequisite to raising an inference of discrimination based on
disparate treatment. See Johnson v. Andy Frain Servs., Inc., 638 F. App’x 68, 70 (2d Cir. 2016)
(summary order) (“Johnson’s third amended complaint did not allege that she and her co-worker
had similar job descriptions or responsibilities.”). Furthermore, Plaintiff failed to allege that she
and Louie were similarly situated because she did not allege any facts with respect to Louie’s
“performance issues.” See Marcus v. Leviton Mfg. Co., Inc., 661 F. App’x 29, 32 (2d Cir. 2016)
(“Without any information as to whether these employees were otherwise similarly situated or
the specifics of their conduct, the mere allegation that two other employees—one younger and
one similar in age—used profanity without being fired does not give rise to even a minimal
inference of age discrimination.”). In short, Plaintiff has failed to create an inference of
discrimination based upon disparate treatment.
16

Aside from Dean Mogulescu’s statement and Louie’s promotion, which are insufficient
to raise an inference of race or color discrimination, the factual allegations in the Amended
Complaint suggest only that the decision to terminate Plaintiff was unfair, but there is nothing to
connect the alleged unfairness to Plaintiff’s race or color. Therefore, the Amended Complaint
does not state a claim for race or color discrimination under Title VII.
ii. Hostile Work Environment
Plaintiff has failed to allege facts to state a plausible hostile work environment claim. To
establish a hostile work environment claim under Title VII, a plaintiff must allege 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, 795 F.3d at 320–21 (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)). The defendant’s conduct must be objectively severe or pervasive enough
that a reasonable person would find it hostile and abusive, and the plaintiff must subjectively
perceive the work environment as abusive. Id. Moreover, the plaintiff also must allege that the
hostile conduct occurred because of the protected characteristic, here her race or color. Tolbert
v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).
Nothing alleged in the Amended Complaint rises to the level of abuse required to state a
hostile work environment claim under Title VII. The only specific incidents Plaintiff alleges that
are even remotely related to such a claim are: (1) Clarke issuing the first CAP, Am. Compl. ¶ 45;
(2) Duitch throwing a pen on the table in Plaintiff’s direction during a meeting, id. ¶ 46; (3)
Clarke accusing Plaintiff of being disrespectful when Plaintiff learned she was not receiving the
promotion, id. ¶ 55; (4) Duitch failing to investigate Plaintiff’s complaints about the CAP, id. ¶¶

17

58-59; (5) Clarke issuing a second CAP, id. ¶ 62;5 and (6) Hoffman telling Plaintiff that Dean
Mogulescu had stated, out of Plaintiff’s hearing, that Plaintiff needed to be supervised by a black
woman, id. ¶ 70.
The first five alleged incidents are not sufficiently “severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” See, e.g.,
Littlejohn, 795 F.3d at 321 (no hostile work environment when supervisor made negative
statements about plaintiff, was impatient and used a harsh tone of voice, refused to meet with
plaintiff, replaced plaintiff at meetings, wrongly reprimanded plaintiff, increased plaintiff’s
workload, and made sarcastic comments); Fleming v. MaxMara USA, Inc., 371 F. App’x 115,
119 (2d Cir. 2010) (no hostile work environment when “defendants wrongly excluded [plaintiff]
from meetings, excessively criticized her work, refused to answer work-related questions,
arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude emails to
her”).
The statement allegedly made by Dean Mogulescu that Plaintiff needed to be supervised
by a black woman is also insufficient to support a hostile work environment claim. The alleged
statement was a single, stray remark, and it was neither directed to nor heard by Plaintiff. See
Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (“As a general rule, incidents must be more
than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive.’” (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997))); Carr v. N.
Shore-Long Island Jewish Health Sys., No. 14 CIV. 3157 (JS), 2015 WL 4603389 at *3
(E.D.N.Y. July 30, 2015) (overheard discriminatory comment without more is insufficient to
state claim); Jowers v. Fam. Dollar Stores, Inc., No. 09 CIV. 2620, 2010 WL 3528978, at *1, 3

5

Plaintiff and Clarke also had a failure of communication regarding scheduling an exterminator, id. ¶¶ 6367. The Court fails to see how a miscommunication could rise to the level of a hostile work environment.

18

(S.D.N.Y. Aug. 16, 2010) (single statement that “black people are lazy and incompetent” made
eight days prior to plaintiff’s termination was a stray remark insufficient to establish an inference
of discrimination on its own), aff’d, 455 F. App’x 100 (2d Cir. 2012).
Even if these various incidents added up to a hostile environment, Plaintiff entirely fails
to allege a basis from which the Court can infer that Defendants took these actions because of
her race or color. Plaintiff does not allege any facts suggesting the necessary discriminatory
motive behind the alleged hostility and instead states in conclusory terms that “[w]ith such
egregious and juvenile accusations, Clarke’s underlying malicious and discriminatory intents
were apparent” and that “Clarke’s actions were permeated with malicious and discriminatory
intentions.” Am. Compl. ¶¶ 52, 57. Those conclusory allegations are insufficient to state a claim
for hostile work environment. See Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001), as
amended (Apr. 20, 2001) (“[B]ald assertions and conclusions of law are not adequate, and a
complaint consisting only of naked assertions, and setting forth no facts upon which a court
could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).”
(internal quotation marks omitted)).
iii. Retaliation
Plaintiff has failed to allege facts to state a claim for retaliation. Title VII prohibits
retaliation against an employee who has opposed any employment practice that is unlawful under
Title VII. 42 U.S.C. § 2000e-(3)(a). Retaliation claims are analyzed pursuant to the McDonnell
Douglas burden-shifting evidentiary framework. Littlejohn, 795 F.3d at 315. To allege a prima
facie case of retaliation under Title VII, a plaintiff must allege that “(1) she engaged in protected
activity; (2) the employer was aware of that activity; (3) the employee suffered a materially
adverse action; and (4) there was a causal connection between the protected activity and the
adverse action.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14
19

(2d Cir. 2013) (per curiam) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)).
As with discrimination claims, “allegations in [support of a retaliation claim] need only give
plausible support to the reduced prima facie requirements that arise under McDonnell Douglas in
the initial phase of a Title VII litigation.” Littlejohn, 795 F.3d at 316.
Protected activity includes any action that protests or opposes statutorily prohibited
discrimination. Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). “Informal
complaints to supervisors, instituting litigation, or filing a formal complaint are protected
activities under Title VII.” Giscombe v. N.Y.C. Dep’t of Educ., 39 F. Supp. 3d 396, 401
(S.D.N.Y.2014) (citations and internal quotation marks omitted). The complaints, however,
whether formal or informal, must be about some act that the employee reasonably and in good
faith believes is unlawful under the anti-discrimination laws. See Kelly, 716 F.3d at 14-15.
Complaining about general unfairness, unaccompanied by any indication that plaintiff’s
protected class status caused the unfairness, does not qualify as protected activity. See Rojas v.
Roman Cath. Diocese of Rochester, 660 F.3d 98, 107–08 (2d Cir. 2011) (“[I]mplicit in the
requirement that the employer have been aware of the protected activity is the requirement that it
understood, or could reasonably have understood, that the plaintiff's [complaint] was directed at
conduct prohibited by Title VII.” (internal quotation marks omitted)); Williams v. Time Warner,
Inc., 09 CIV. 2962 (RJS) 2010 WL 846970 at *4 (S.D.N.Y. Mar. 3, 2010) (“[W]orkplace
difficulties entirely consistent with non-race-non-gender personality disputes . . . are plainly not
actionable under statutes intended to root out discrimination on the basis of certain statutorily
defined protected characteristics.”), aff’d, 440 F. App’x 7 (2d Cir. 2011).
Plaintiff has not alleged that she engaged in any protected activity prior to her
termination. Plaintiff spoke to various people about the alleged inaccuracies in and unfairness of
the CAP, Am. Compl. ¶¶ 53, 58, 60, but nothing in the Amended Complaint suggests that
20

anything she said would have alerted a reasonable person that she was complaining about
discrimination.6 Plaintiff alleges that she complained to Duitch about Clarke and the CAP
because it was “unfounded, false and detrimental to Plaintiff’s job and career,” id. ¶ 58, but
nowhere in the Amended Complaint does Plaintiff allege that she complained to anyone about
discrimination. As such, Plaintiff has failed to state a plausible claim of retaliation under Title
VII.
B. Age Discrimination
Plaintiff has failed to allege facts to state a plausible claim for age discrimination under
the ADEA. The ADEA prohibits employers from discharging or otherwise discriminating
against any individual on the basis of age. 29 U.S.C. § 623(a). The statute defines the protected
age group as individuals at least 40 years of age. Id. at § 631(a). The Second Circuit has
extended the Littlejohn Title VII analysis to ADEA claims, holding that a plaintiff need only
plausibly plead that she is “a member of a protected class, was qualified, suffered an adverse
employment action, and has at least minimal support for the proposition that the employer was
motivated by discriminatory intent.” Andy Frain Servs., 638 F. App’x at 70 (quoting Littlejohn,
795 F.3d at 311).
Although Plaintiff has plausibly pled that she is a member of the protected class, was
qualified for the position, and suffered an adverse employment action, the Amended Complaint
contains no allegations from which the Court could infer that her age played any part in the
employer’s motivation. Plaintiff’s only support for her claims of age discrimination is an
allegation that Defendants replaced her with “a much younger female under the age of forty.”7

6

Although Plaintiff engaged in protected activity when she filed the EEOC complaint, Plaintiff has not
alleged that she suffered a materially adverse action after filing the EEOC complaint.

7

Plaintiff claims that on several occasions Clarke said to Plaintiff, “[a]s you get older, it’s harder to keep
up.” Decl. of Rudy A. Dermesropian in Opp. to CUNY and Duitch’s Mot. to Dismiss, Ex. 2, ¶ 4 (Dkt. 37-2). The

21

Am. Compl. ¶ 79. Because Plaintiff provides nothing more to support her claims of age
discrimination, this claim must be dismissed. See Marcus, 661 F. App’x at 32-33 (“[T]he mere
fact that an older employee was replaced by a younger one does not plausibly indicate
discriminatory motive.”).
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss are GRANTED. Plaintiff’s
ADEA claim alleging age discrimination and Title VII claims alleging a hostile work
environment and retaliation are dismissed with prejudice because Plaintiff failed to exhaust her
administrative remedies as to those claims. Plaintiff’s Title VII race and color discrimination
claims are dismissed without prejudice. If Plaintiff chooses to amend her complaint further, she
must do so no later than July 21, 2017, and she must allege facts that go beyond the allegations
included in her Amended Complaint and the affidavit filed in support of her opposition to
Defendants’ motions to dismiss. Because all of Plaintiff’s federal claims are dismissed, the
Court declines to exercise supplemental jurisdiction over Plaintiff’s state and local law claims.
The Clerk of Court is respectfully directed to close the open motions at docket entries twentyfour and twenty-nine.
SO ORDERED.
_________________________________
____________________________
___
__
__
__
__
VALERIE CAPRONI
United States District Judge

Date: July 7, 2017
New York, New York

Court need not consider this fact because it was not alleged in the Amended Complaint, but even if it had been,
Plaintiff’s ADEA claim would still be dismissed because, as discussed above, Plaintiff failed to exhaust her
administrative remedies with respect to this claim.

22