Jenkins v. Consolidated Edison Company of New York, Inc.

Filing 42

REPORT AND RECOMMENDATION re: 21 MOTION to Dismiss For Partial Dismissal of Plaintiff's Amended Complaint filed by Consolidated Edison Company of New York, Inc.; 33 MOTION to Amend/Correct File a Second Amended Com plaint filed by Sherry Jenkins. For the reasons discussed above, I recommend that the defendant's motion to dismiss (Docket No. 21) and the plaintiff's cross-motion for leave to amend (Docket no. 33) each be granted in part and de nied in part. Specifically, I recommend that dismissal be granted and leave to amend be denied with respect to all of the plaintiff's claims except: (1) Race and sex discrimination claims under the NYCHRL to the extent that they are based on conduct that occurred on or after June 23, 2013, except that references to the plaintiff as "going to the fields" before that date are actionable under the continuing violation doctrine. (2) Retaliation claims under Title VII based on c onduct that occurred on or after June 7, 2013, and under the NYSHRL and NYCHRL based on conduct that occurred on or after June 23, 2013, except that the denial of the plaintiff's transfer request in April 2015 is not actionable under any stat ute. (3) Hostile work environment claims based on race and gender under Title VII based on conduct that occurred on or after June 7, 2013, and under the NYSHRL and NYCHRL based on conduct that occurred on or after June 23, 2013, except that refere nces to the plaintiff's as "going to the fields" before that date are actionable under the continuing violation doctrine. Pursuant to 28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Analisa Torres, Room 2210, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York, 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 6/5/2017.) (Signed by Magistrate Judge James C. Francis on 5/22/2017) Copies Transmitted this Date By Chambers. (anc)

that throughout her tenure at ConEd, she has been sexually harassed
by ConEd employees (Proposed SAC, ¶¶ 16, 20, 26, 29, 34, 47, 57);
her

colleagues

have

made

racist

and

sexist

comments

in

the

workplace (Proposed SAC, ¶¶ 17, 19, 22, 25, 38-39, 44, 60); she
has been denied training opportunities, access to facilities, and
other

favorable

working

conditions

given

to

male

employees

(Proposed SAC, ¶¶ 17, 24-26, 31-32, 40, 50); she has been demoted,
denied promotions, and denied wage increases because of her race,
sex, and pregnancy (Proposed SAC, ¶¶ 38, 45, 52); she has been
“written up,” denied training, and threatened with termination
because of injuries suffered on the job and medical conditions
associated with her pregnancy (Proposed SAC, ¶¶ 27, 35-36, 43);
and she has been retaliated against for reporting these alleged
acts of discrimination and harassment.
33, 42-44, 59).

(Proposed SAC, ¶¶ 20-21,

She also alleges that she was sexually assaulted

by a group of ConEd employees in 1991.

(Proposed SAC, ¶ 15).

On April 3, 2014, the plaintiff filed a charge with the United
States Equal Employment Opportunity Commission (“EEOC”) alleging
sex

and

national

origin

discrimination

and

retaliation

for

reporting such discrimination under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

(Notice of

Charge of Discrimination (“EEOC Charge”), attached as Exh. A to
Declaration of Lorie E. Almon dated Nov. 18, 2016; Proposed SAC,
¶ 103).

On April 12, 2016, the EEOC issued a Right to Sue Letter.
2

(Proposed SAC, ¶ 106).

The plaintiff commenced this action on

June 23, 2016.
On August 30, 2016, the parties entered into a stipulation
giving

the

plaintiff

leave

to

file

an

amended

complaint

(Stipulation to File an Amended Complaint dated Aug. 30, 2016
(“Stipulation”)), which she did on September 13, 2016. The Amended
Complaint

alleges

(1)

discrimination

based

on

race,

national

origin, sex, and religion under Title VII; the New York State Human
Rights Law, N.Y. Exec. Law § 296 et seq. (the “NYSHRL”); and the
New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (the
“NYCHRL”) (first, second, ninth, and twelfth causes of action); 2
(2) quid pro quo harassment (sixth cause of action); (3) hostile
work

environment

(seventh

cause

of

action);

(4)

retaliation

(eighth cause of action); (5) punitive damages under Title VII
(tenth cause of action) 3 (6) intentional infliction of emotional

2

The plaintiff also asserts facial discrimination, disparate
treatment, and disparate impact as separate causes of action.
(third, fourth, and fifth causes of action). As these are theories
of discrimination, not independent causes of action, I consider
them in connection with the plaintiff’s discrimination claims.
3

Because this is a damages claim, not a distinct cause of
action, I do not address it at this stage of the litigation. See
Denis v. Home Depot, U.S.A., Inc., No. 10 CV 3227, 2014 WL 6632486,
at *6 (E.D.N.Y. Nov. 21, 2014) (“Punitive damages are not a
separate cause of action and, thus, courts generally find motions
to strike punitive damages at the motion to dismiss stage to be
premature.”)
3

distress (eleventh cause of action); 4 (7) discrimination under the
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (the “PDA”)
(twelfth cause of action); (8) discrimination under the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”)
(twelfth cause of action); (9) discrimination under the Genetic
Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq.
(“GINA”) (twelfth cause of action); (10) discrimination under the
Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (the “FMLA”)
(twelfth cause of action); and (11) violation of the Employee
Retirement Income Security Act, 29 U.S.C. § 1132 et seq. (“ERISA”)
(twelfth cause of action).
On November 18, 2016, the defendant moved to dismiss the
Amended

Complaint

in

part,

seeking

dismissal

of

all

of

the

plaintiff’s claims except (1) the Title VII retaliation claim and
hostile work environment claims based on race and sex to the extent
that they are based on conduct that occurred on or after June 7,

4

The plaintiff brings this claim under the heading of “severe
emotional distress” (Amended Complaint (“FAC”), ¶¶ 112-119), which
the defendant construes as a claim for emotional distress damages,
not a separate cause of action. (Defendant Consolidated Edison
Company of New York, Inc.’s Memorandum of Law in Support of Its
Motion for Partial Dismissal of Plaintiff’s Amended Complaint
(“Def. Memo.”) at 5 n.6). Under the this heading, however, the
plaintiff alleges that (1) the defendant engaged in “outrageous
conduct” (2) “for the purpose of causing severe emotional
distress,” which (3) actually “caus[ed] emotional distress” that
was (4) severe. (FAC, ¶¶ 114-15, 117-18). These are the elements
of an intentional infliction of emotional distress claim under New
York Law. See Rentas v. Ruffin, 816 F.3d 214, 227 (2d Cir. 2016)
4

2013; and (2) the NYSHRL and NYCHRL retaliation claims and hostile
work environment claims based on race and sex to the extent that
they are based on conduct that occurred on or after June 23, 2013.
(Def. Memo. at 3 n.1).
On December 23, 2016, together with her opposition to the
motion to dismiss, the plaintiff cross-moved for leave to file a
second amended complaint.

The Proposed Second Amended Complaint

replaces the plaintiff’s religious discrimination claim with a
discrimination claim based on her ethnicity.
14, 62, 99).

(Proposed SAC, ¶¶ 1,

It otherwise alleges the same causes of action as

the Amended Complaint, though it reorganizes the claims under
different
under

the

headings,
FMLA,

the

recharacterizes
ADA,

and

the

GINA

discrimination

as

claims

for

claims

“unlawful

employment practices” (Compare FAC, ¶¶ 120-24, with Proposed SAC,
¶¶ 183-230), and clarifies that the quid pro quo harassment,
hostile work environment, and retaliation claims are each brought
pursuant to Title VII, the NYSHRL, the NYCHRL, the FMLA, the PDA,
the ADA, and GINA.

(Proposed SAC, ¶¶ 128, 139, 151-52, 158, 167).

Legal Standard
A.

Motion to Dismiss

To survive a motion to dismiss under Rule 12(b)(6) of the
Federal

Rules

of

Civil

Procedure,

“a

complaint

must

contain

sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678
5

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

The court’s charge in ruling on a 12(b)(6) motion “is

merely to assess the legal feasibility of the complaint, not to
assay the weight of the evidence which might be offered in support
thereof.” GVA Market Neutral Master Ltd. v. Veras Capital Partners
Offshore Fund, Ltd., 580 F. Supp. 2d 321, 327 (S.D.N.Y. 2008)
(quoting Eternity Global Master Fund Ltd. v. Morgan Guaranty Trust
Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004)).

The court

must construe the complaint in the light most favorable to the
plaintiff, “taking its factual allegations to be true and drawing
all reasonable inferences in the plaintiff’s favor.”

Harris v.

Mills, 572 F.3d 66, 71 (2d Cir. 2009).
B.

Leave to Amend

Rule 15 of the Federal Rules of Civil Procedure provides that
courts

should

requires.”

“freely

give”

leave

to

amend

“when

justice

so

Fed. R. Civ. P. 15(a)(2); accord Foman v. Davis, 371

U.S. 178, 182 (1962); Aetna Casualty & Surety Co. v. Aniero
Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005).
standard

is

consistent

with

[the

Second

“This permissive

Circuit’s]

preference for resolving disputes on the merits.’”

‘strong

Williams v.

Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (quoting New
York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)).

The court has

broad discretion over motions to amend, see McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and may deny
6

such a motion for the following reasons: (1) undue prejudice to
the non-moving party, (2) futility, (3) bad faith or dilatory
motive, (4) repeated failure to cure deficiencies by previous
amendments, or (5) undue delay, United States ex rel. Ladas v.
Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016).
Here, the defendant opposes leave to amend on the grounds of
futility and undue prejudice.

Leave to amend should be denied as

futile when the amended pleading would not survive a motion to
dismiss under Rule 12(b)(6). IBEW Local Union No. 58 Pension Trust
Fund and Annuity Fund v. Royal Bank of Scotland Group, PLC, 783
F.3d 383, 389 (2d Cir. 2015).

Thus, the standard governing leave

to amend is whether the amended pleading states a claim on which
relief can be granted when all facts pled are accepted as true and
construed in the light most favorable to the plaintiff.

See

Panther Partners Inc. v. Ikanos Communications, Inc., 681 F.3d
114, 119 (2d Cir. 2012) (citing Ashcroft, 556 U.S. at 678-80).
The defendant bears the burden of demonstrating that the proposed
amendment is futile.

See Allison v. Clos-ette Too, LLC, No. 14

Civ. 1618, 2015 WL 136102, at *2 (S.D.N.Y. Jan. 9, 2015).
In deciding whether the party opposing amendment would suffer
undue prejudice, courts evaluate whether the amendment would “(i)
require the opponent to expend significant additional resources to
conduct discovery and prepare for trial; (ii) significantly delay
the resolution of the dispute; or (iii) prevent the plaintiff from
7

bringing a timely action in another jurisdiction.”

Hutter v.

Countrywide Bank, N.A., 41 F. Supp. 3d 363, 371 (S.D.N.Y. 2014)
(quoting Monahan v. New York City Department of Corrections, 214
F.3d 275, 284 (2d Cir. 2000)). Courts also consider the particular
procedural posture of the case.

See, e.g., Ruotolo v. City of New

York, 514 F.3d 184, 192 (2d Cir. 2008) (“Undue prejudice arises
when an ‘amendment [comes] on the eve of trial and would result in
new problems of proof.’” (alteration in original) (quoting State
Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d
Cir. 1981))); Grochowski v. Phoenix Construction, 318 F.3d 80, 86
(2d Cir. 2003) (upholding denial of leave to amend sought after
discovery

had

closed

and

while

summary

judgment

motion

was

pending).

The non-moving party bears the burden of demonstrating

that undue prejudice would result if the proposed amendment were
granted.

Oneida Indian Nation of New York State v. County of

Oneida, 199 F.R.D. 61, 77 (S.D.N.Y. 2000).
Discussion
The

plaintiff

concedes

that

the

Proposed

Second

Amended

Complaint, rather than adding new causes of action or new factual
allegations, “merely clarifies the allegations contained in the
Amended Complaint” in order to plead the claims “more artfully.”
(Plaintiff’s

Memorandum

of

Law

Submitted

in

Opposition

to

Defendant’s Motion for Partial Dismissal of Plaintiff’s Amended
Complaint and in Support of Plaintiff’s Cross-Motion to Further
8

Amend the Complaint (“Pl. Memo.”) at 32).

With the exception of

the plaintiff’s replacement of her religious discrimination claim
with an ethnicity discrimination claim, this characterization of
the Proposed Second Amended Complaint is accurate.

Accordingly,

with that exception, the defendant’s motion to dismiss and the
plaintiff’s cross-motion for leave to amend present the same
question -- whether the allegations in the pleadings, which are
substantively identical, state claims on which relief can be
granted. 5

Cf. 3801 Beach Channel, Inc. v. Schvartzman, No. 05 CV

207, 2007 WL 2891119, at *11 (E.D.N.Y. Sept. 28, 2007) (denying
leave to amend where there were “serious substantive legal defects”
in the original complaint and “plaintiffs’ counsel [made] clear
[that] an amendment would do no more than reorganize and clarify
the factual allegations and legal theories already set forth in
the existing Complaint”).
The plaintiff alleges numerous incidents of discrimination,
retaliation, and harassment dating back to 1990.

For reasons that

will be discussed below, the statutes of limitations on all of the
plaintiff’s claims -- with the exception of the ERISA claim -- bar

5

The plaintiff argues that the Amended Complaint (but not
the Proposed Second Amended Complaint) should be construed
liberally, like a pro se pleading, because her relationship with
her lawyer was “on the rocks” at the time it was filed. (Pl. Memo.
at 4-5). There is no law to support this proposition. Therefore,
I do not evaluate the Amended Complaint under the more generous
pleading standard afforded to pro se plaintiffs.
9

consideration of conduct that occurred before June 7, 2013, at the
earliest.

Accordingly, before considering whether the allegations

in the plaintiff’s pleadings state claims on which relief can be
granted, I will review the allegations concerning events that
occurred since June 7, 2013.
The plaintiff alleges that certain conduct occurred “in 2013”
without providing a specific month or day. 6

For example, in 2013,

Devri Gibbs, another ConEd employee, asked a supervisor, Tye
Barnes, in the plaintiff’s presence if “he liked the plaintiff’s
‘big ass’” and “wants to fuck that big ass,” to which Mr. Barnes
responded, “Not everyone is into that.”

(Proposed SAC, ¶ 57).

“Instead of action being taken in response to . . . that episode,
the plaintiff was isolated from other workers[] and told not to
speak

to

anyone

or

(Proposed SAC, ¶ 57).

she

would

be

written

up

by

management.”

That same year, four different supervisors

-- Tom McEnery, Thomas Nolan, Eric Galloza, and Cory Jaworsky -told the plaintiff that “they rated male mechanics higher than
female mechanics,” calling male mechanics “top of the barrel” and
female mechanics “bottom of the barrel.”

(Proposed SAC, ¶ 58).

In 2014, the plaintiff alleges that she “was denied the
opportunity to replace a supervisor who was leaving.”

6

(Proposed

Viewing the facts in the light most favorable to the
plaintiff, I treat such conduct as timely under statutes of
limitations that bar consideration of conduct that occurred before
a specific date in 2013.
10

SAC, ¶ 52).

The supervisor, named Vormittagg, told her, “[Y]ou

don’t want this job, you have young kids and[] cannot help your
family.”

(Proposed SAC, ¶ 52).

men to apply for the position.

He then encouraged less qualified
(Proposed SAC, ¶ 52).

That same

year, Mr. McEnery told other ConEd employees that the plaintiff
“keeps getting pregnant so that she can get time off the job.”
(Proposed SAC, ¶ 60).

Meanwhile, a manager named Howie Sheard

told the plaintiff that she was “put into isolation” because she
was “a trouble maker” who “turns people into the EEO.”
SAC, ¶ 59).

(Proposed

Mr. Sheard also stated, “I do not trust your ass . .

. because I do not want you running to the EEO saying I tried to
grab you.”

(Proposed SAC, ¶ 59).

In April 2015, the plaintiff was denied a request to be
transferred

to

the

Bronx

--

the

“most

recent[]”

of

numerous

requests to be transferred there, all of which “have been summarily
and arbitrarily denied.”

(Proposed SAC, ¶ 21).

The plaintiff

alleges that she has been making these requests regularly since
1993, when she was involuntarily transferred away from the Bronx
for

reporting

Febrizio.

sexual

harassment

by

a

supervisor

named

Nick

(Proposed SAC, ¶¶ 20-21).

The remainder of the plaintiff’s allegations either concern
conduct before June 7, 2013, or allege that certain types of
conduct occurred throughout the duration of her employment without
discussing specific incidents since June 7, 2013.
11

For example,

she alleges that “for more than 20 years, [she] has been subjected
to

retaliation,

harassment

and

hostile

work

environment”

for

reporting the 1991 sexual assault (Proposed SAC, ¶ 16); that
“[b]eginning in 1993 and continuing to the present time,” numerous
supervisors referred to black female mechanics as “going to the
fields” while referring to white male mechanics as “going to the
job” (Proposed SAC, ¶ 22); and that “[t]hroughout [her] employment,
the standard practice at the company was to keep the medical
conditions of male employees strictly confidential, while opening,
revealing and discussing in public the medical conditions of female
employees.”
A.

(Proposed SAC, ¶ 23).

Exhaustion of Administrative Remedies

As a prerequisite to bringing suit under Title VII, GINA, or
the ADA, a plaintiff must first file a timely charge with the EEOC.
See Chin v. Port Authority of New York & New Jersey, 685 F.3d 135,
146 (2d Cir. 2012) (Title VII); Yajaira Bezares C. v. Donna Karan
Company Store LLC, Nos. 13 Civ. 8560, 13 Civ. 9123, 2014 WL
2134600,

at

*5

(S.D.N.Y.

May

22,

2014)

(GINA);

Benjamin

v.

Brookhaven Science Associates, LLC, 387 F. Supp. 2d 146, 154-55
(E.D.N.Y. 2005) (ADA).

Accordingly, a plaintiff may only raise

claims under these statutes if they were included in the EEOC
charge or are “reasonably related” to it.
F.3d 195, 200 (2d Cir. 2003).
burden

of

proving

the

Deravin v. Kerik, 335

Because the defendant bears the

plaintiff’s
12

failure

to

exhaust

administrative

remedies,

Broich

v.

Incorporated

Village

of

Southampton, 650 F. Supp. 2d 234, 246 (E.D.N.Y. 2009), “a plaintiff
is not required to explicitly plead or demonstrate exhaustion at
the pleading stage,” Arnold v. Research Foundation for the State
University of New York, __ F. Supp. 3d __, __, 2016 WL 6126314, at
*8 (E.D.N.Y. 2016).
The EEOC charge in this case, which the defendant attached as
an exhibit to its motion to dismiss, only alleges sex and national
origin discrimination and retaliation under Title VII.
Charge).

It does not allege discrimination under GINA, the ADA,

or Title VII based on race, religion, or ethnicity.
the

(EEOC

defendant

argues

that

those

claims

are

Accordingly,

barred

plaintiff’s failure to exhaust administrative remedies.

by

the
(Def.

Memo. at 9-10; Defendant’s Memorandum of Law in Opposition to
Plaintiff’s Cross-Motion to Further Amend the Amended Complaint
(“Def. Opp. Memo.”) at 7-8).
The plaintiff counters that the Right to Sue Letter, which
she attached as an exhibit to her opposition to the motion to
dismiss

and

cross-motion

for

leave

to

amend,

satisfies

the

exhaustion requirement because it states that it is “issued under
Title VII, the ADA, or GINA.”

(Right to Sue Letter, attached as

Exh. A to Jasne Decl.; Pl. Memo. at 5-10).

In the alternative,

she argues that the claims not explicitly mentioned in the EEOC
charge are reasonably related to those in the charge.
13

(Pl. Memo.

at 5-10).
Although the plaintiff is not required to plead exhaustion,
a court may in its discretion to convert a motion to dismiss into
a motion for partial summary judgment on the issue of exhaustion
of

administrative

remedies

where

both

parties

“submit[]

reference[] documents outside of the pleadings.”

and

Clemmer v.

Fordham Bedford Community Services, No. 14 Civ. 2343, 2015 WL
273657, at *3 n.l (S.D.N.Y. Jan. 16, 2015).

As both parties have

submitted such documents and briefed the issue, I exercise my
discretion to reach the issue here.
First, the plaintiff’s attempt to rely on what appears to be
boilerplate language in the Right to Sue Letter is without merit.
As

stated

above,

whether

a

plaintiff

properly

exhausted

administrative remedies depends on the claims contained in the
EEOC charge, not the Right to Sue Letter.

There is no dispute

that the charge did not raise claims under GINA, the ADA, or Title
VII based on race, religion, or ethnicity.
Second, a claim is “reasonably related” to those in an EEOC
charge when “the conduct complained of would fall within the scope
of the EEOC investigation which can reasonably be expected to grow
out of the charge that was made.”

Littlejohn v. City of New York,

795 F.3d 297, 322 (2d Cir. 2015) (quoting Deravin, 335 F.3d at
200-01).

This analysis focuses on “the factual allegations made

in the [EEOC] charge itself, describing the discriminatory conduct
14

about which a plaintiff is grieving.” Id. (alteration in original)
(quoting Deravin, 335 F.3d at 201).

Here, the EEOC charge does

not describe the discriminatory conduct suffered by the plaintiff,
such that it could have put the EEOC on notice to investigate
claims of discrimination based on disability, genetic information,
race, religion, or ethnicity.

The mere assertion of claims based

on sex and national origin is insufficient to give the EEOC notice
to investigate claims based on different characteristics. 7

See

Buksha v. New York City Dep’t of Corrections, No. 06 Civ. 5363,
2007 WL 2947982, at *2 (S.D.N.Y. Oct. 9, 2007) (discrimination
claims “based on different characteristics” and “different acts of
alleged

discrimination”

are

not

subject matter” in EEOC charges).

“‘reasonably

related’

to

the

Therefore, I recommend that

dismissal be granted and leave to amend be denied with respect to
the plaintiff’s GINA, ADA, and Title VII race, religion, and
ethnicity discrimination claims.

7

Courts in this Circuit have recognized two other types of
“reasonably related” claims: (1) where “the plaintiff alleges
retaliation for filing an EEOC charge”; and (2) “where a plaintiff
alleges further incidents of discrimination carried out in
precisely the same manner alleged in the EEOC charge.” Sahni v.
Legal Services of the Hudson Valley, No. 14 Civ. 1616, 2015 WL
4879160, at *6 (S.D.N.Y. Aug. 13, 2015) (quoting Butts v. City of
New York Department of Housing, 990 F.2d 1397, 1402-03 (2d Cir.
1993)). Neither exception is relevant here.
15

B.

Discrimination Claims
Title VII, PDA, 8 and NYSHRL

1.

a.

Statutes of Limitations

To bring claims under Title VII, a plaintiff must file an
EEOC charge within 300 days of the alleged discriminatory act.

42

U.S.C.

v.

§

2000e-5(e)(1);

National

Morgan, 536 U.S. 101, 109 (2002).
charge on April 3, 2014.

Railroad

Passenger

Corp.

The plaintiff filed her EEOC

Thus, her Title VII claims are barred to

the extent that they are based on conduct that occurred prior to
June 7, 2013, 300 days before she filed her EEOC charge.
The statute of limitations under the NYSHRL is three years.
CPLR § 214(2); Taylor v. City of New York, 207 F. Supp. 3d 293,
302 (S.D.N.Y. 2016).

The plaintiff’s NYSHRL claims are therefore

barred to the extent that they are based on conduct that occurred
prior to June 23, 2013, three years before she filed her complaint.
b.
Courts

in

this

Merits
Circuit

analyze

employment

discrimination

claims under Title VII and the NYSHRL according to the same
standard.

McGill v. University of Rochester, 600 F. App’x 789,

8

The PDA amended Title VII to clarify that its prohibition
on sex discrimination includes discrimination “because of or on
the
basis
of
pregnancy,
childbirth,
or
related
medical
conditions.” 42 U.S.C. § 2000e(k); Young v. United Parcel Service,
Inc. __ U.S. __, __, 135 S. Ct. 1338, 1345 (2015). Thus, analysis
of the plaintiff’s PDA claims is coextensive with that of her Title
VII sex discrimination claims.
16

790 (2d Cir. 2015); Taylor, 207 F. Supp. 3d at 303.

To survive a

motion to dismiss a discrimination claim under either statute, a
plaintiff must allege that she suffered an “adverse employment
action” and “sustain a minimal burden of showing facts suggesting
an inference of discriminatory motivation.”

Littlejohn, 795 F.3d

at 311; see also Taylor, 207 F. Supp. 3d at 304.

“A plaintiff

sustains an adverse employment action if he or she endures a
materially

adverse

change

in

the

terms

and

conditions

of

employment” that “is more disruptive than a mere inconvenience or
alteration of job responsibilities.”

Brown v. City of Syracuse,

673 F.3d 141, 150 (2d Cir. 2012) (quoting Joseph v. Leavitt, 465
F.3d 87, 90 (2d Cir. 2006)).
Only
merits

one

timely

significant

allegation
discussion

in

the

as

a

plaintiff’s

pleadings

discrimination

claim:

thatVormittagg discouraged her from applying for a promotion to
his position in 2014. 9

To establish a prima facie case of a

9

I do not analyze the denials of the plaintiff’s requests to
be transferred to the Bronx as a discrimination claim because she
alleges that retaliation -- not discrimination based on a protected
characteristic -- was the reason for the denials. (Proposed SAC,
¶¶ 20-21). I also do not analyze the purported statements of four
supervisors that they gave male mechanics higher ratings than
female mechanics as a discrimination claim because the plaintiff
does not allege that she suffered tangible negative consequences
from receiving such a rating. See Siddiqi v. New York City Health
& Hospitals Corp., 572 F. Supp. 2d 353, 367 (S.D.N.Y. 2008) (“A
negative employment evaluation, if accompanied by negative
consequences, such as demotion, diminution of wages, or other
tangible loss, may constitute an adverse employment action.
However, ‘negative evaluations, standing alone without any
17

discriminatory failure to promote, a plaintiff must show that “(1)
she is a member of a protected class; (2) she applied and was
qualified for a job for which the employer was seeking applicants;
(3) she was rejected for the position; and (4) the position
remained open and the employer continued to seek applicants having
the plaintiff's qualifications.”

Barrett v. Forest Laboratories,

Inc., 39 F. Supp. 3d 407, 441 (S.D.N.Y. 2014) (quoting Petrosino
v. Bell Atlantic, 385 F.3d 210, 226 (2d Cir. 2004)).
The plaintiff does not allege that she actually applied for
Vormittagg’s

position

or

that

her

application

was

rejected.

Rather, she alleges that she was discouraged from applying while
less qualified men were encouraged to apply.

Though Vormittagg’s

statement that the plaintiff would not want the job because she
needs to take care of her children would satisfy the plaintiff’s
burden of showing discriminatory motivation, such discouragement
alone does not constitute an adverse employment action under Title
VII or the NYSHRL.

See Rogers v. Fashion Institute of Technology,

No. 14 Civ. 6420, 2016 WL 889590, at *9 (S.D.N.Y. Feb. 26, 2016)
(“[A]lthough Plaintiff claims he expressed interest in a full-time
position but was told not to apply, ‘a plaintiff must allege that
she applied for a specific position or positions and was rejected

accompanying adverse results, are not cognizable.’”
(citation
omitted) (quoting Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d
236, 247 (S.D.N.Y.2001))).
18

therefrom . . . .’” (internal quotation marks omitted) (quoting
Hughes v. Xerox Corp., 37 F. Supp. 3d 629, 643 (W.D.N.Y. 2014)));
Johnston v. Carnegie Corp. of New York, No. 10 Civ. 1681, 2011 WL
1085033, at *11 (S.D.N.Y. Feb. 24, 2011) (“Even if Defendants
discouraged Plaintiff from applying for other positions . . . ,
such discouragement would not give rise to a claim for failure to
promote.”), report and recommendation adopted, 2011 WL 1118662
(S.D.N.Y. March 23, 2011).

Therefore, the plaintiff’s pleadings

fail to state a timely, colorable discrimination claim under Title
VII or the NYSHRL.
Nevertheless, the plaintiff argues that claims that accrued
before the

Title

VII

and

NYSHRL

statutes

of

limitations

are

actionable under the continuing violation doctrine (Pl. Memo. at
10-13), which provides that where “a plaintiff has experienced a
continuous

practice

and

policy

of

discrimination,

. . .

the

commencement of the statute of limitations period may be delayed
until

the

last

discriminatory

act

in

furtherance

of

it.”

Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004)
(alteration in original) (quoting Fitzgerald v. Henderson, 251
F.3d 345, 349 (2d Cir. 2001)).

The doctrine applies to claims

“composed of a series of acts that collectively constitute one
unlawful [] practice.”

Gonzalez v. Hasty, 802 F.3d 212, 220 (2d

Cir. 2015) (alteration in original) (quoting Washington, 373 F.3d
at 318).

It “has generally been limited to situations where there
19

are

specific

policies

or

mechanisms,

such

seniority lists or employment tests.”

as

discriminatory

Crosland v. City of New

York, 140 F. Supp. 2d 300, 307 (S.D.N.Y 2001).

Accordingly,

“discrete discriminatory acts are not actionable if time barred,
even

when

charges.”
the

they

are

related

to

acts

Morgan, 536 U.S. at 113.

plaintiff

‘allege[s]

. . .

alleged

in

timely

filed

The doctrine applies “only if
some

contributing to the alleged violation.”

non-time-barred

acts’

Gonzalez, 802 F.3d at 220

(alterations in original) (quoting Harris v. City of New York, 186
F.3d 243, 250 (2d Cir. 1999)).
Here, the plaintiff does not allege that ConEd instituted any
discriminatory policy or mechanism, much less that any non-timebarred acts contributed to such a policy or mechanism.

Therefore,

the continuing violation doctrine does not apply here. I recommend
that dismissal be granted and leave to amend be denied with respect
to the plaintiff’s Title VII and NYSHRL discrimination claims.
2.

NYCHRL
a.

Statute of Limitations

Like the NYSHRL, the statute of limitations under the NYCHRL
is three years.

N.Y.C. Admin. Code § 8-502(d); Taylor, 207 F.

Supp. 3d at 302.

Thus, the plaintiff’s NYCHRL claims are barred

to the extent that they are based on conduct that occurred prior
to June 23, 2013.

20

b.

Merits

Discrimination claims under the NYCHRL are governed by a more
liberal standard than claims under Title VII and the NYCHRL.
Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d
102, 109 (2d Cir. 2013).

Therefore, “even if the challenged

conduct is not actionable under federal and state law, federal
courts must consider separately whether it is actionable under the
broader New York City standards.”

Id.

“To establish a []

discrimination claim under the NYCHRL, the plaintiff need only
demonstrate ‘by a preponderance of the evidence that she has been
treated less well than other employees because of [a protected
characteristic].’”

Id. at 110 (quoting Williams v. New York City

Housing Authority, 61 A.D.3d 62, 78, 872 N.Y.S.2d 27, 39 (1st Dep’t
2009)); see also Taylor, 207 F. Supp. 3d at 304.

Under this

standard,

suffered

a

plaintiff

need

not

allege

that

she

a

materially adverse employment action to plead a discrimination
claim.

Mihalik, 715 F.3d at 114; Taylor, 207 F. Supp. 3d at 308.

Still, courts applying this standard “must be mindful that
the NYCHRL is not a ‘general civility code.’”

Mihalik, 715 F.3d

at 110 (quoting Williams, 61 A.D.3d at 79, 872 N.Y.S.2d at 40).
Accordingly, the NYCHRL permits defendants to establish, as an
affirmative defense, “that the conduct complained of consists of
nothing more than what a reasonable victim of discrimination would
consider petty slights and trivial inconveniences.”
21

Id. at 111

(internal quotation marks omitted) (quoting Williams, 61 A.D.3d at
80, 872 N.Y.S.2d at 41).
The plaintiff makes numerous timely allegations that she
received inferior treatment because she is a woman.
Vormittag

discouraging

her

from

applying

for

These include

his

supervisory

position because “you have young kids and[] cannot help your
family” (Proposed SAC, ¶ 52), Mr. Gibbs’ lewd remarks to Mr. Barnes
in her presence (Proposed SAC, ¶ 57), and supervisors in 2013
giving female mechanics lower ratings and calling them “bottom of
the barrel” in her presence.
incidents

amount

to

more

(Proposed SAC, ¶ 58).

than

petty

slights

and

These
trivial

inconveniences, as they reflect a workplace in which the plaintiff
was repeatedly demeaned and discouraged from opportunities to
advance

in

the

company

because

she

is

a

woman.

Thus,

the

plaintiff’s pleadings state a colorable sex discrimination claim
under the NYCHRL.
The only timely allegation that the plaintiff was treated
less well than other employees on the basis of race is that she
and other black women were referred to as “going to the fields,”
whereas

white

men

were

referred

to

as

throughout the duration of her employment. 10

10

“going

to

the

job,”

(Proposed SAC, ¶ 22).

Viewing the facts in the light most favorable to the
plaintiff, where the plaintiff alleges that conduct occurred
repeatedly and “throughout the duration of her employment,” I
22

Though this allegation concerns only one offensive phrase that is
not connected to any material adverse employment action, its
arguable reference to slavery 11 makes it more than a petty slight
or trivial inconvenience, particularly given that the plaintiff
alleges that the phrase was used throughout her time at ConEd by
more

than

ten

different

supervisors.

Thus,

the

plaintiff’s

pleadings also state a colorable claim of race discrimination under
the NYCHRL. 12
As with her Title VII and NYSHRL claims, the plaintiff argues
that the continuing violation doctrine permits consideration of

assume that at least some of the conduct occurred within the Title
VII, NYSHRL, and NYCHRL limitations periods.
11

This is the plaintiff’s interpretation of the phrase, which
may be accepted on a motion to dismiss. It is at least equally
probable that supervisors referred to “going into the field,”
meaning “out of the office,” a term with no connotations of
slavery.
Evidence of the context in which it was used will
ultimately shed light on the intended meaning of the phrase.
12

To the extent that allegations like Mr. Barnes’ lewd remarks
and references to the plaintiff as “going to the fields” appear to
constitute harassment rather than discrimination, courts in this
Circuit have recognized that “‘[u]nder the NYCHRL, there are not
separate standards for “discrimination” and “harassment” claims.’
Instead, ‘there is only the provision of the law that proscribes
imposing different terms, conditions and privileges of employment
based’ on a protected characteristic.”
Johnson v. Strive East
Harlem Employment Group, 990 F. Supp. 2d 435, 445 (S.D.N.Y. 2014)
(citations omitted) (quoting Clarke v. InterContinental Hotels
Group, PLC, No. 12 Civ. 2671, 2013 WL 2358596, at *11 (S.D.N.Y.
May 30, 2013)). I analyze the NYCHRL discrimination and harassment
claims separately only because the continuing violation doctrine
applies in different ways to discrimination and harassment claims
under the NYCHRL.
23

conduct that occurred before the statute of limitations.
Memo. at 10-13).

(Pl.

The continuing violation doctrine is given a

broader construction under the NYCHRL than under Title VII or the
NYSHRL.

Taylor, 207 F. Supp. 3d at 302-03; Mohamed v. NYU, No. 14

Civ. 8373, 2015 WL 5307391, at *3 n.8 (S.D.N.Y. Sept. 10, 2015).
Under the NYCHRL, “[o]therwise time-barred discrete acts can be
considered

timely

discrimination

‘where

are

specific

permitted

by

and
the

related
employer

instances
to

of

continue

unremedied for so long as to amount to a discriminatory policy or
practice.’”

Sotomayor v. City of New York, 862 F. Supp. 2d 226,

250 (E.D.N.Y. 2012) (quoting Fitzgerald v. Henderson, 251 F.3d
345, 359 (2d Cir.2001)).
instances

of

Courts tend to find that discrete

discrimination

are

sufficiently

“specific

and

related” where they consist of the same type of conduct or where
the

same

individual

targets

discriminatory acts over time.
(applying

continuing

a

plaintiff

with

similar

See Taylor, 207 F. Supp. 3d at 303

violation

doctrine

where

the

plaintiff

applied for the same position fourteen times without success);
Mohamed, 2015 WL 5307391, at *3-4 (applying continuing violation
doctrine to “recurring failure to pay Plaintiff higher wages”);
Sotomayor, 862 F. Supp. 2d at 251 (applying continuing violation
doctrine to conduct of individual defendant who “subject[ed] [the
plaintiff]

to

an

inordinate

number

24

of

formal

and

informal

observations[] and [gave] her negative ratings” over a three-year
period).
Repeated references to the plaintiff and other black women as
“going to the fields” consist of the same type of conduct carried
out over a long period of time by the same group of supervisors.
There is no allegation that the defendant attempted to remedy this
conduct, even though it persisted throughout the duration of the
plaintiff’s

employment.

Accordingly,

these

incidents

are

sufficiently specific and related to establish a discriminatory
practice
doctrine.

at

ConEd

under

the

NYCHRL’s

continuing

violation

Use of that phrase to the plaintiff before June 2013 is

actionable as part of her NYCHRL discrimination claim.
The plaintiff’s remaining allegations prior to June 2013, on
the other hand, concern a wide variety of discriminatory conduct
carried out by a number of different individuals.

Though some

individuals involved in timely allegations are also involved in
untimely

allegations,

the

incidents

are

sporadic,

and

the

plaintiff fails to connect the timely and untimely allegations in
any meaningful way.

Accordingly, the remainder of her untimely

allegations are not actionable under the continuing violation
doctrine, even under the NYCHRL’s more lenient standard.

See

Mohamed, 2015 WL 5307391, at *3-4 (declining to apply continuing
violation

doctrine

to

failure-to-promote

allegation

where

complaint did “not provide an adequate basis to determine whether
25

the

promotion

decision

[was]

connected

to

Plaintiff’s

timely

allegations”); Dimitracopoulos v. City of New York, 26 F. Supp. 3d
200, 212 (E.D.N.Y. 2014) (“Later evaluations and letters to file
by separate individuals are not part of the same continuing pattern
of discriminatory conduct by a prior principal.”).

Therefore, I

recommend that dismissal be denied and leave to amend be granted
with respect to the plaintiff’s race and sex discrimination claims
under the NYCHRL. 13

However, with the exception of references to

the plaintiff as “going to the fields” by various supervisors,
conduct that occurred before June 23, 2013, should be barred by
the statute of limitations.
3.

Disparate Impact and Facial Discrimination

All of the allegations discussed above consist of disparate
treatment claims, that is, that the plaintiff was “treated [] less
favorably

than

a

similarly

situated

employee

outside

[her]

protected group.”

Graham v. Long Island Railroad, 230 F.3d 34, 39

(2d Cir. 2000).

However, the plaintiff also asserts that she

suffered “disparate impact” and “facial discrimination.”
these claims are without merit.

Both of

To state a prima facie claim of

13

Though the plaintiff also asserts discrimination based on
religion, national origin, and ethnicity, none of the plaintiff’s
timely allegations describes inferior treatment based on these
characteristics. Therefore, dismissal should be granted and leave
to amend should be denied with respect to discrimination claims
based on these characteristics under Title VII, the NYSHRL, and
the NYCHRL.
26

disparate impact, a plaintiff must “(1) ‘identify a specific
employment practice’ or policy; ‘(2) demonstrate that a disparity
exists; and (3) establish a causal relationship between the two.’”
Chin, 685 F.3d at 151 (first quoting Malave v. Potter, 320 F.3d
321, 326 (2d Cir. 2003); then quoting Robinson v. Metro-North
Commuter Railroad Co., 267 F.3d 147, 160 (2d Cir. 2001)); see also
Lewis v. City of Chicago, 560 U.S. 205, 212 (2010).

Conversely,

a “policy is discriminatory on its face if it expressly classifies
persons on the basis of [a protected characteristic].”

Correction

Officers Benevolent Association of Rockland County v. Kralik, No.
04 Civ. 2199, 2011 WL 1236135, at *6 (S.D.N.Y. March 30, 2011)
(quoting Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir.
1999)).

None of the plaintiff’s timely allegations concerns a

policy or practice implemented by ConEd that either explicitly
discriminates on the basis of a protected characteristic or has a
disparate impact on a protected group.

Therefore, the plaintiff’s

pleadings do not state a claim based on either of these theories
of discrimination.
4.

ADA and GINA

Even if the plaintiff had properly exhausted administrative
remedies for her ADA and GINA claims, her pleadings fail to state
a discrimination claim under either statue.

To establish a prima

facie case of disability discrimination under the ADA, a plaintiff
must show that: (1) her employer is subject to the ADA; (2) she
27

was disabled within the meaning of the ADA; (3) she was otherwise
qualified to perform the essential functions of her job, with or
without reasonable accommodation; and (4) she suffered adverse
employment action because of her disability.

McMillan v. City of

New York, 711 F.3d 120, 125-26 (2d Cir. 2013).

To bring claims

under the ADA, a plaintiff must file an EEOC charge within 300
days of the alleged discriminatory act.

Harris, 186 F.3d at 247.

Thus, like the plaintiff’s Title VII claim, her ADA claims are
barred to the extent that they are based on conduct that occurred
prior to June 7, 2013.

The plaintiff fails to allege that she had

a disability or that an adverse employment action was taken against
her because of a disability since that date.
GINA makes it unlawful for an employer “to fail or refuse to
hire, or to discharge, any employee, or otherwise to discriminate
against any employee . . . because of genetic information with
respect to the employee.”

42 U.S.C. § 2000ff-1(a)(1).

The Act

defines “genetic information” as (1) an employee’s genetic tests;
(2) the genetic tests of the employee’s family members; or (3) the
manifestation a disease or disorder in the employee’s family
members.
that

42 U.S.C. § 2000ff(4).

anyone

at

ConEd

had

such

The plaintiff does not allege
information

or

discriminated against because of such information.

that

she

was

Therefore, the

plaintiff fails to state a colorable discrimination claim under
GINA or the ADA
28

C.

Retaliation Claims

As discussed earlier, the defendant does not move to dismiss
the retaliation claims under Title VII, the NYSHRL, and the NYCHRL
to the extent that they are based on conduct that occurred within
their respective statutes of limitations, with one exception.
(Def. Memo. at 3 n.1). 14

The timely allegations of retaliation in

the plaintiff’s pleadings are (1) that she was denied a transfer
to the Bronx in April 2015 as part of a systemic course of
retaliation against her (Proposed SAC, ¶¶ 20-21); (2) that she was
“put into isolation” for reporting acts of discrimination and
harassment to ConEd management and to the EEOC in 2013 and 2014
(Proposed SAC, ¶¶ 57, 59); and (3) that she was told she would be
“written up by management” if she told coworkers about Mr. Gibbs’
and Mr. Barnes’ lewd conversation about her in 2013.
SAC, ¶ 57).

(Proposed

Although the defendant does not move to dismiss the

timely retaliation claims in their entirety, it does move to
dismiss the claims based on the denial of the plaintiff’s transfer
request on the ground that that denial did not constitute an
adverse employment action.

(Def. Memo. at 15-16).

14

The defendant “incorporates all of the arguments contained
in its Motion to Dismiss into [its opposition to the plaintiff’s
cross-motion for leave to amend].” (Def. Opp. Memo. at 7 n.5).
Therefore, I assume that the defendant also does not oppose leave
to amend for these claims on the ground of futility.
29

1.

Denial of Transfer

Retaliation claims, like discrimination claims, are governed
by a different standard under Title VII and the NYSHRL than they
are under the NYCHRL.
a.

See Mihalik, 715 F.3d at 113.

Title VII and NYSHRL

To survive a motion to dismiss a retaliation claim under Title
VII or the NYSHRL, “the plaintiff must plausibly allege that: (1)
[the] defendant[] discriminated -- or took an adverse employment
action -- against [her], (2) ‘because’ [s]he has opposed any
unlawful employment practice.” Vega v. Hempstead Union Free School
District, 801 F.3d 72, 90 (2d Cir. 2015) (quoting 42 U.S.C. §
2000e-3(a)); accord Taylor, 207 F. Supp. 3d at 307. The definition
of “adverse employment action” sweeps more broadly in the context
of retaliation claims than it does in the context of discrimination
claims: “an adverse employment action is any action that ‘could
well dissuade a reasonable worker from making or supporting a
charge

of

discrimination.’”

Vega,

801

F.3d

at

90

(quoting

Burlington North & Santa Fe Railway Co. v. White, 548 U.S. 53, 57
(2006)).

In this analysis, “[c]ontext matters”; for example, “[a]

schedule change in an employee’s work schedule may make little
difference to many workers, but may matter enormously to a young
mother with school-age children.”
Railway, 548 U.S. at 69.

Burlington North & Santa Fe

Still, the standard is objective,

30

examining

the

impact

the

employee.

action

would

have

on

a

reasonable

Id. at 68-69.

Here, the plaintiff describes the Bronx as her “home base”
and explains that she made numerous requests to be transferred
there.

However, she fails to provide any information about how

the denial of the transfer actually affected her, such that it
might dissuade a reasonable employee in her shoes from reporting
discrimination or harassment.

This is insufficient to establish

an adverse employment action in the context of a retaliation claim
under Title VII or the NYSHRL.

See Feliciano v. City of New York,

No. 14 Civ. 6751, 2015 WL 4393163, at *7-8 (S.D.N.Y. July 15, 2015)
(granting motion to dismiss Title VII and NYSHRL retaliation claims
where the plaintiff “[did] not provide any information as to how
the transfer impacted him”).
Even if the plaintiff had sufficiently alleged an adverse
employment action, her retaliation claim based on the denial of
the transfer request would fail on the causation prong.

“[F]or an

adverse retaliatory action to be ‘because’ a plaintiff made a
charge, the plaintiff must plausibly allege that the retaliation
was a ‘but-for’ cause of the employer’s adverse action.”
801 F.3d at 90.

Vega,

Here, however, the plaintiff does not tie the

denial of the transfer request to the reporting of any act of
discrimination or harassment.

She makes only the conclusory

allegation that she “has been systematically retaliated against by
31

[the] [d]efendant and its employees” in that all of her requests
to be transferred to the Bronx have been denied since the she was
transferred out of the Bronx in 1993.

(Proposed SAC, ¶ 21).

This

is insufficient to establish the but-for causation needed to state
a retaliation claim.

See Feliciano, 2015 WL 4393163, at *7-8

(granting motion to dismiss where the plaintiff alleged nothing
“[b]eyond the conclusory allegation that in retaliation for his
complaints and prior lawsuits, Plaintiff was transferred to the
Bronx”).

Therefore, the denial of the transfer request does not

state a colorable retaliation claim under Title VII or the NYSHRL.
b.

NYCHRL

The claim based on the denial of the plaintiff’s transfer
request fails for similar reasons under the NYCHRL.

To state a

retaliation claim under the NYCHRL, a plaintiff must show that
“(1)

[she]

defendants;

participated
(2)

in

defendants

a

took

protected
an

action

activity
that

known

to

disadvantaged

[her]; and (3) a causal connection exists between the protected
activity and the adverse action.”

Taylor, 207 F. Supp. 3d at 308

(alterations in original) (quoting Fletcher v. Dakota, Inc., 99
A.D.3d 43, 51–52, 948 N.Y.S.2d 263, 269 (1st Dep’t 2012)).

As

discussed above, the plaintiff fails to make a causal connection
between the reporting of any specific act of discrimination or
harassment and the denial of the transfer request.

32

Therefore, the

denial of the transfer request also does not state a colorable
retaliation claim under the NYCHRL.
2.

Remaining Allegations

The defendant does not specify which of the remaining timely
allegations it concedes is adequately pled.

I therefore assume

that the defendant does not move to dismiss any of the remaining
timely allegations of retaliation.

The plaintiff, meanwhile,

argues that untimely allegations of retaliation should survive
under the continuing violation doctrine.
This

argument

is

without

merit.

The

(Pl. Memo. at 10-13).
plaintiff’s

untimely

allegations involve acts of retaliation carried out by different
individuals in retaliation for the reporting of different acts of
discrimination and harassment than those involved in her timely
allegations. 15

(See, e.g., Proposed SAC, ¶¶ 27, 34).

Thus, as

alleged, the time-barred and non-time-barred acts of retaliation

15

For example, Mr. Sheard, who was involved in the decision
to put the plaintiff “into isolation” in 2013 and 2014 (Proposed
SAC, ¶¶ 57, 59), is mentioned only once elsewhere in the
plaintiff’s pleadings -- as one of the supervisors who referred to
the plaintiff and other black female mechanics as “going to the
fields.” (Proposed SAC, ¶ 22). He is not mentioned in connection
with any other acts of retaliation. The same goes for Mr. Barnes,
who is otherwise mentioned in connection with pre-2013 conduct
only once -- for telling the plaintiff in 2012 that “no one wants
you around here because you turn people in.”
(Proposed SAC, ¶
56). The plaintiff also does not allege that she was “put into
isolation” at any point before 2013, let alone explain what
actually happened when she was “put into isolation,” such that
this act of retaliation might be connected to pre-2013 conduct as
part of a specific policy or mechanism instituted by ConEd.
33

are discrete events that were not carried out pursuant to a
specific policy or mechanism. I therefore recommend that dismissal
be granted and leave to amend be denied with respect to the Title
VII, NYSHRL, and NYCHRL retaliation claims based on all of the
untimely allegations under those statutes and based on the denial
of the plaintiff’s transfer request in April 2015. 16

The remaining

timely allegations of retaliation -- which the defendant concedes
are adequately pled -- survive.
D.

Harassment Claims
1.

Hostile Work Environment

As with the retaliation claims, the defendant does not move
to dismiss the plaintiff’s Title VII, NYSHRL, and NYCHRL hostile
work environment claims based on race and sex to the extent that
they are based on conduct that occurred within the statutes of
limitations.

(Def. Memo. at 3 n.1).

The timely allegations of

harassment in the plaintiff’s pleadings are: (1) Mr. Gibbs’ and
Mr. Barnes’ lewd conversation about the plaintiff’s body in 2013;
(2) Mr. Galloza, Mr. Nolan, Mr. McEnery, and Mr. Jaworsky calling
female mechanics “bottom of the barrel” in 2013; (3) Mr. Sheard
telling other ConEd employees that the plaintiff “keeps getting

16

Although the plaintiff also alleges retaliation under the
ADA and GINA, she makes no timely allegations of retaliation for
reporting discrimination or harassment based on a disability or
her genetic information.
I address her FMLA retaliation claim
later in this Report.
34

pregnant so she can get time off the job”; (4) Mr. Sheard telling
the

plaintiff,

“I

do

not

trust

your

ass”;

and

(5)

numerous

supervisors referring to the plaintiff and other black female
mechanics as “going to the fields” throughout the duration of her
employment.
Unlike with the retaliation claims, the defendant does not
argue that any of the timely allegations should be dismissed.

I

therefore assume that the defendant considers all of the above
conduct to be part of the adequately pled hostile work environment
claim.

Accordingly, the only question to resolve is whether the

untimely conduct is actionable as part of the same hostile work
environment under the continuing violation doctrine.
The

continuing

violation

doctrine

applies

differently

to

hostile work environment claims than it does to discrimination and
retaliation

claims,

though

the

standard

for

applying

the

continuing violation doctrine to hostile work environment claims
is the same under Title VII, the NYSHRL, and the NYCHRL. 17
207 F. Supp. 3d at 309 n.10.

Taylor,

Because “the entire hostile work

17

Still, the standard to establish the existence of a hostile
work environment is more lenient under the NYCHRL than it is under
Title VII or the NYSHRL.
Title VII and the NYSHRL require a
plaintiff to establish “severe and pervasive” harassment in the
workplace.
Summa v. Hofstra University, 708 F.3d 115, 124 (2d
Cir. 2013) (quoting Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.
2009)). By contrast, the NYCHRL does not require a plaintiff to
show severe and pervasive conduct, but only that the plaintiff was
treated less well based on a protected characteristic. Mihalik,
715 F.3d at 110; see also Johnson, 990 F. Supp. 2d at 445.
35

environment encompasses a single unlawful employment practice,”
all of the conduct that constitutes part of the hostile work
environment, including that which occurred before the limitations
period, is actionable as long as “any act that is part of the
hostile work environment” occurred within the limitations period.
Morgan, 536 U.S. at 117-18; see also E.E.O.C. v. Bloomberg, L.P.,
751 F. Supp. 2d 628, 647 (S.D.N.Y. 2010).
“offensive

incident

within

the

Under this standard, an

limitations

period

permits

consideration of an incident preceding the limitations period only
if the incidents are sufficiently related.”

McGullam v. Cedar

Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010).

This “requires

courts to make an individualized assessment of whether incidents
and

episodes

are

related,”

an

inquiry

in

which

courts

have

“flexibility [that] is useful in a context . . . as amorphous as
hostile work environment.”

Id.

The Supreme Court has held that untimely acts of harassment
are sufficiently related to timely acts where there is “evidence
from a number of . . . employees that managers made racial jokes,
performed

racially

derogatory

acts,

made

negative

comments

regarding the capacity of blacks to be supervisors, and used
various racial epithets.”

Morgan, 536 U.S. at 120; see also Rowe

v. Hussmann Corp., 381 F.3d 775, 781 (8th Cir. 2004) (where “the
same harasser . . . commit[ed] the same harassing acts . . . , the
acts before and after the limitations period were so similar in
36

nature, frequency, and severity that they must be considered to be
part and parcel of the hostile work environment”).
hand,

untimely

sufficiently

acts

and

related

when

timely
they

acts
are

of

On the other

harassment

committed

by

coworkers in a different section of the [workplace].”

are

not

“different
Dziedzic v.

State University of New York at Oswego, 648 F. App’x 125, 128 (2d
Cir. 2016).
The allegation that numerous supervisors referred to the
plaintiff -- along with other black female employees -- as “going
to the fields” throughout the duration of her employment consists
of the same harassing conduct committed by the same group of
supervisors.

Therefore, allegations that this occurred prior to

June 2013 are part of the same actionable hostile work environment
as allegations that it occurred after June 2013.
The

remaining

untimely

allegations

in

the

plaintiff’s

pleadings, on the other hand, date back as far as 1990 and involve
distinct

conduct

supervisors.

by

a

number

of

different

coworkers

and

To be sure, some of the people involved in timely

incidents of harassment are also involved in untimely allegations.
For example, in 2004, Mr. Galloza called the plaintiff “unreliable”
because of her pregnancy, and in 2000, he refused to give her to
access shower facilities that were used by men (Proposed SAC, ¶¶
32, 37); in 2004, Mr. McEnery refused to work with the plaintiff
on a job and stated that she “should be in the kitchen bare foot
37

and pregnant and have nothing to say on this job” (Proposed SAC,
¶ 38); in 2012, Mr. Barnes told the plaintiff that “no one wants
you around here because you turn people in.”

(Proposed SAC, ¶

56).
As the examples above demonstrate, however, the vast majority
of the untimely allegations of harassment by the same people
involved in timely allegations occurred nearly a decade, if not
more, before the timely conduct.
be

considered

environment.
year

gap

actionable

as

These acts are too sporadic to

part

of

the

same

hostile

work

See, e.g., Benjamin, 387 F. Supp. 2d at 154 (six-

between

alleged

events

precludes

application

of

continuing violation doctrine on hostile work environment claim).
Moreover, the plaintiff does not allege any facts connecting
Mr. Barnes’ 2012 statement to the lewd conversation he had with
Mr. Gibbs in 2013, as the former concerns the plaintiff turning
people into the EEOC and the latter consists of sexual harassment.
Nor does the plaintiff allege a plausible theory connecting the
remaining

untimely

allegations

of

harassment

committed

by

different individuals to the timely allegations in her pleadings.
Therefore,

with

the

exception

of

pre-2013

references

to

the

plaintiff as “going to the fields,” the continuing violation
doctrine does not apply the plaintiff’s hostile work environment
claims.

I recommend that the motion to dismiss be granted and

leave to amend be denied with respect to the plaintiff’s Title
38

VII, NYSHRL, and NYCHRL hostile work environment claims to the
extent that they are based on conduct before June 7, 2013 (Title
VII), and June 23, 2013 (NYSHRL and NYCHRL), with the exception
that

claims

based

on

supervisors

referring

to

black

female

employees as “going to the fields” before those dates should be
permitted to proceed. 18
2.

Quid Pro Quo Harassment

“Quid pro quo harassment occurs when ‘a tangible employment
action result[s] from a refusal to submit to a supervisor’s sexual
demands.’”

Brown v. City of New York, No. 10 Civ. 6491, 2011 WL

2693677, at *6 (S.D.N.Y. July 11, 2011) (alteration in original)
(quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753
(1998)).

In the context of a quid pro quo harassment claim, a

tangible

employment

action

means

“a

significant

change

in

employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.”

Schiano v.

Quality Payroll Systems, Inc., 445 F.3d 597, 604 (2d Cir. 2006)
(quoting Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d
Cir. 2004)).

Although the plaintiff alleges that Mr. Barnes and

Mr. Gibbs made lewd remarks about her body in her presence in 2013,

18

The plaintiff makes no timely allegations of harassment
based on religion, national origin, or ethnicity. Dismissal should
be granted and leave to amend should be denied with respect to the
hostile work environment claims based on these characteristics.
39

she does not allege that anyone at ConEd has made a sexual advance
toward her since June 2013 or that she was retaliated against for
refusing such an advance. 19 Accordingly, the plaintiff’s pleadings
fail to state a quid pro quo harassment claim.
E.

FMLA

Courts in this Circuit recognize two types of claims under
the FMLA: interference and retaliation.

See Potenza v. City of

New York, 365 F.3d 165, 167-68 (2d Cir. 2004); Drew v. Plaza
Construction Corp., 688 F. Supp. 2d 270, 276 (S.D.N.Y. 2010).

To

state an FMLA interference claim, a plaintiff must allege:
[(1)] that she is an eligible employee under the FMLA;
[(2)] that the defendant is an employer as defined by
the FMLA; [(3)] that she was entitled to take leave under
the FMLA; [(4)] that she gave notice to the defendant of
her intention to take leave; and [(5)] that she was
denied benefits to which she was entitled under the FMLA.
Graziadio v. Culinary Institute of America, 817 F.3d 415, 424 (2d
Cir. 2016); accord Smith v. Westchester County, 769 F. Supp. 2d
448, 465 (S.D.N.Y. 2011).

The statute of limitations under the

FMLA is two years unless the alleged violation is willful, in which
case the statute of limitations is three years.
2617(c)(1)-(2); Smith, 769 F. Supp. 2d at 463.
commenced this action on June 23, 2016.

19

29 U.S.C. §
The plaintiff

Thus, her FMLA claim is

The plaintiff does allege that she refused “repeated sexual
advances” by a supervisor named Dariene Wells from 2009 through
2011, which led to retaliation. (Proposed SAC, ¶ 47). However,
this allegation is untimely.
40

barred to the extent that it is based on conduct that occurred
before June 23, 2014, or, if any alleged conduct is willful, June
23, 2013. None of the plaintiff’s allegations since June 23, 2013,
concern the denial of benefits to which she was entitled under the
FMLA, willful or otherwise.
To establish a retaliation claim under the FMLA, a plaintiff
must show that she was punished for exercising her rights under
the FMLA.

Hill v. New York City Housing Authority, __ F. Supp. 3d

__, __, 2016 WL 6820759, at *6 (S.D.N.Y. 2016).

Though the

plaintiff alleges that Mr. McEnery complained that the plaintiff
“keeps getting pregnant so she can get time off the job” in 2014
(Proposed SAC, ¶ 60), she does not allege any instance within the
statute of limitations in which an adverse action was taken against
her for taking or attempting to take family or medical leave.
Thus, I recommend that dismissal be granted and leave to amend be
denied with respect to the plaintiff’s FMLA claims.
F.

Intentional Infliction of Emotional Distress

To

establish

liability

for

intentional

infliction

of

emotional distress (“IIED”), a plaintiff must prove that the
defendant engaged in “‘(1) extreme and outrageous conduct’ with
the ‘(2) intent to cause severe emotional distress,’ that there
was ‘(3) a causal connection between the conduct and the injury,’
and that ‘(4) severe emotional distress’ resulted.”

Rentas, 816

F.3d at 227 (quoting Bender v. City of New York, 78 F.3d 787, 790
41

(2d Cir. 1996)).
one year.

The statute of limitations for IIED claims is

CPLR § 215(3); Rentas, 816 F.3d at 226.

Thus, only

conduct that occurred on or after June 23, 2015, may be considered
part of the plaintiff’s IIED claim.

Not a single allegation in

the plaintiff’s pleadings, however, concerns conduct that occurred
on or after that date. 20
granted

and

leave

to

Therefore, I recommend that dismissal be
amend

be

denied

with

respect

to

the

plaintiff’s IIED claim.
G.

ERISA

The plaintiff does not expressly state the section of ERISA
under which she brings her claims. She alleges that ConEd “engaged
in practices and acts and policies in which [the] [p]laintiff[]
directly and indirectly suffered loss of benefits as to pensions
and retirement plans.”

(Proposed SAC, ¶ 225).

Thus, her claim is

properly characterized as a claim “to recover benefits due to [her]
under the terms of [her] plan[] [and] to enforce [her] rights under
the terms of the plan” under 29 U.S.C. § 1132(a)(1)(B).

20

Even assuming that at least one of the references to the
plaintiff as “going to the fields” occurred within the statute of
limitations, the plaintiff does not allege any emotional distress
within the limitations period. The general allegation that such
remarks were made throughout the duration of the plaintiff’s
employment is not enough to survive a motion to dismiss this
“highly disfavored cause of action.” De Sesto v. Slaine, 171 F.
Supp. 3d 194, 201-02 (S.D.N.Y. 2016) (quoting Guan N. v. NYC Dep't
of Education, No. 11 Civ. 4299, 2013 WL 67604, at *25 (S.D.N.Y.
Jan. 7, 2013)).
42

“ERISA does not expressly provide a statute of limitations
for civil enforcement actions, so the most similar state statute
of limitations applies to most ERISA claims . . . .”

Bilello v.

JPMorgan Chase Retirement Plan, 607 F. Supp. 2d 586, 592 (S.D.N.Y.
2009). In New York, claims under Section 1132(a)(1)(B) are subject
to a six-year statute of limitations, which is inferred from the
statute of limitations for breach of contract claims under CPLR §
213.

Burke v. PriceWaterHouseCoopers LLP Long Term Disability

Plan, 572 F.3d 76, 78 (2d Cir. 2009); Bilello, 607 F. Supp. 2d at
592.

Therefore, the plaintiff’s ERISA claim is barred to the

extent that it is based on conduct that occurred prior to June 23,
2010, six years before she commenced this action.
None of the plaintiff’s allegations since June 23, 2010,
concern the denial of benefits due to her under the terms of an
employee benefit plan.

Although the plaintiff attached a letter

to her cross-motion for leave to amend that provides dates on which
she took leave in connection with the calculation of her pension
benefits (Letter of Rosann C. Milian dated Dec. 7, 2016, attached
as Exh. C to Jasne Decl.), neither of her pleadings explains the
significance of this letter. Therefore, I recommend that dismissal
be granted and leave to amend be denied with respect to the
plaintiff’s ERISA claim.
H.

Undue Prejudice

As for the claims for which leave to amend is not futile, the
43

defendant

argues

that

permitting

amendment

would

be

unduly

prejudicial because the “[d]efendant should not be forced to expend
resources and bear the cost of filing a second motion to dismiss”
so that the plaintiff may file “a slightly tidier complaint.”
(Def. Opp. Memo. at 9).

However, the plaintiff’s motion for leave

to amend resolves the exact same issue that would be resolved by
a

motion

to

dismiss

--

whether

the

Proposed

Second

Amended

Complaint states claims on which relief can be granted.

The

proposition that the defendant would need to expend additional
resources to file a motion addressing the identical legal question
addressed here is dubious. Moreover, this is not a situation where
permitting

amendment

would

require

significant

additional

discovery or where the plaintiff is attempting to ambush the
defendant with new claims on the eve of trial.

Discovery has not

yet started, and both parties acknowledge that the Proposed Second
Amended Complaint raises the same claims as the Amended Complaint.
This leaves the defendant with only bare “[a]llegations that an
amendment will require the expenditure of additional time, effort,
or money,” which “do not [themselves] constitute undue prejudice.”
A.V.E.L.A. v. Estate of Monroe, 34 F. Supp. 3d 311, 318 (S.D.N.Y.
2014) (alterations in original) (quoting A.V. by Versace, Inc. v.
Gianni Versace S.p.A., 87 F. Supp. 2d 281, 299 (S.D.N.Y. 2000)).
Therefore, leave to amend should not be denied on the basis of
undue prejudice.
44

I.

Attorneys’ Fees

The plaintiff requests that she be awarded attorneys’ fees in
the event that she is ruled to be a prevailing party on any of her
claims.

(Pl. Memo. at 30-31).

I have made no such recommendation

here, nor is it possible for a plaintiff to be deemed a prevailing
party on a motion to dismiss or motion for leave to amend.
Therefore, the request for attorneys’ fees should be denied.
J.

Leave to Replead

“[I]t is the usual practice . . . to allow leave to replead”
when a complaint is dismissed for failure to state a claim upon
which relief can be granted.

Cruz v. TD Bank, N.A., 742 F.3d 520,

523 (2d Cir. 2013) (per curiam); Woodward v. Morgenthau, 740 F.
Supp. 2d 433, 441 (S.D.N.Y. 2010).

Leave to replead may be denied,

however, where a court has previously identified deficiencies in
the

pleadings

and

subsequent pleadings.

the

deficiencies

remain

uncorrected

in

Official Committee of Unsecured Creditors

of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 168
(2d Cir. 2003); see also Foman, 371 U.S. at 182.

Although the

plaintiff previously amended her complaint and conceded that some
of the claims in her original complaint were deficiently pled
(Stipulation), this is the first time that a court has identified
the deficiencies in her pleadings.

Therefore, I recommend giving

the

one

plaintiff

leave

to

replead

deficiencies identified above.

more

time

to

cure

the

However, leave to replead should
45

not be granted on the plaintiff’s GINA, ADA, and Title VII claims
based on race, religion, and ethnicity, as further amendment could
not

cure

the

plaintiff’s

failure

to

exhaust

administrative

remedies on these claims.
Conclusion
For

the

reasons

discussed

above,

I

recommend

that

the

defendant’s motion to dismiss (Docket No. 21) and the plaintiff’s
cross-motion for leave to amend (Docket no. 33) each be granted in
part and denied in part.

Specifically, I recommend that dismissal

be granted and leave to amend be denied with respect to all of the
plaintiff’s claims except:
1.

Race and sex discrimination claims under the NYCHRL
to the extent that they are based on conduct that
occurred on or after June 23, 2013, except that
references to the plaintiff as “going to the
fields” before that date are actionable under the
continuing violation doctrine.

2.

Retaliation claims under Title VII based on conduct
that occurred on or after June 7, 2013, and under
the NYSHRL and NYCHRL based on conduct that
occurred on or after June 23, 2013, except that the
denial of the plaintiff’s transfer request in April
2015 is not actionable under any statute.

3.

Hostile work environment claims based on race and
gender under Title VII based on conduct that
occurred on or after June 7, 2013, and under the
NYSHRL and NYCHRL based on conduct that occurred on
or after June 23, 2013, except that references to
the plaintiff’s as “going to the fields” before
that date are actionable under the continuing
violation doctrine.

46