Cromwell-Gibbs v. Staybridge Suite Times Square et al

Filing 21

OPINION AND ORDER re: 15 MOTION to Dismiss filed by Seen Kei Chiew, Staybridge Suite Times Square. For the reasons set forth above, Defendants' motion to dismiss is GRANTED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (As further set forth in this Opinion and Order.) (Signed by Judge Katherine Polk Failla on 6/20/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MERRILL CROMWELL-GIBBS,
:
:
:
Plaintiff,
:
v.
:
:
STAYBRIDGE SUITE TIMES SQUARE and :
SEEN KIE CHIEW,
:
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: June 20, 2017
______________

16 Civ. 5169 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiff Merrill Cromwell-Gibbs, an African-American woman, is the
former Director of Housekeeping at Defendant Staybridge Suites Times Square
(“Staybridge”). 1 In 2015, one of Plaintiff’s former co-workers, Nicole Pacheco,
sent a group e-mail attaching a video of Staybridge employees performing a skit
that contained racial epithets. After Plaintiff expressed her offense at the video
in a “reply all” e-mail, Staybridge’s General Manager, Defendant Seen Kie
Chiew (“Chiew,” and together with Staybridge, “Defendants”), admonished
Plaintiff for publicly airing her grievances. Chiew explained to Plaintiff that he
had privately reprimanded Pacheco, and asked that Plaintiff apologize to
Pacheco for calling her out. When Plaintiff refused to apologize, Chiew ceased
exchanging pleasantries with Plaintiff at work.

1

In his Complaint and Amended Complaint, Plaintiff erroneously refers to Staybridge as
“Staybridge Suite Times Square,” and this error has been replicated in the case’s
docket. The Clerk of Court is directed to amend this case’s caption as reflected above.

In 2016, Plaintiff sued Defendants, arguing that they created a hostile
work environment in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17 (“Title VII”); the New York State Human Rights
Law, N.Y. Exec. Law. §§ 290 to 301 (the “NYSHRL”); and the New York City
Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-131 (the “NYCHRL”).
Defendants have moved to dismiss Plaintiff’s Amended Complaint (the
operative complaint in this case) under Federal Rule of Civil Procedure 12(b)(6).
For the reasons set forth below, the Court grants Defendants’ motion.
BACKGROUND 2
A.

Factual Background
Staybridge is a hotel in New York City. (AC ¶ 7). Plaintiff worked at

Staybridge from October 2012 until January 2016, when she retired. (Id. at

2

This Opinion draws on facts from two sources. The first is Plaintiff’s Amended
Complaint (“AC” (Dkt. #12)), and for the purposes of this Opinion the Court assumes
that the allegations therein are true. E.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The second is the e-mail chain that gave rise to Plaintiff’s lawsuit (“E-mails” (Dkt. #166)). The e-mail chain is attached as an exhibit to a document Defendants filed:
Attorney Siobhan Healy’s Affirmation in Support of Motion to Dismiss. (See Dkt. #16).
The Court may consider the e-mail chain in deciding this Opinion because the Amended
Complaint incorporates the e-mail chain by reference. See, e.g., Goel v. Bunge, Ltd.,
820 F.3d 554, 559 (2d Cir. 2016) (limiting universe of materials district courts may
consider in assessing sufficiency of a complaint to “facts stated on the face of the
complaint, ... documents appended to the complaint or incorporated in the complaint
by reference, and ... matters of which judicial notice may be taken.” (quoting Concord
Assocs., L.P. v. Entm’t Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016))).
“To be incorporated by reference, the Complaint must make a clear, definite, and
substantial reference to the document[].” White v. City of N.Y., 206 F. Supp. 3d 920,
929 (S.D.N.Y. 2016) (quoting Helprin v. Harcourt, Inc., 277 F. Supp. 2d 327, 330-31
(S.D.N.Y. 2003)); accord Hagan v. City of N.Y., 39 F. Supp. 3d 481, 493 n.5 (S.D.N.Y.
2014). Just so here. The Amended Complaint contains nine paragraphs of factual
allegations. (AC ¶¶ 11-19). Six of those paragraphs make direct reference to the e-mail
chain, the contents of the e-mails exchanged, and/or the contents of the video Pacheco
attached to her e-mail that initiated the chain. (Id. at ¶¶ 13-18). Put simply, the
Amended Complaint clearly, definitely, and substantially references the e-mail chain.
And in turn, the Court deems the e-mail chain incorporated by reference into the
Amended Complaint. See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 112 (2d

2

¶ 11). At the time of the events giving rise to this lawsuit, Plaintiff was
Staybridge’s Director of Housekeeping, and Pacheco was Staybridge’s Front
Desk Manager. (Id. at ¶ 12; E-mails 2).
This case began with an ill-advised workplace e-mail. On June 13,
2015 — and evidently as part of a team-building exercise called “Celebrate
Service Week” — Pacheco sent a group e-mail to “13 or 14” Staybridge
employees, “including other management employees.” (AC ¶¶ 13-14; E-mails
1-2). Both Plaintiff and Chiew received the e-mail, attached to which was a
video of a group of Staybridge employees performing a musical skit. (AC ¶ 13;
E-mails 2). During the skit, the employees in the video — including at least
one “management level employee” — sang a song that included the word
“nigger.” (AC ¶¶ 14, 16). 3

Cir. 2010) (district court correctly determined that complaint incorporated by reference
e-mails attached as exhibits to a declaration filed by defense counsel in support of Rule
12(b)(6) motion to dismiss, where plaintiff “referred in her complaint to [the] e-mails”
but did not attach them as exhibits to her complaint); Worldwide Servs., Ltd. v.
Bombardier Aerospace Corp., No. 14 Civ. 7343 (ER), 2015 WL 5671724, at *8 (S.D.N.Y.
Sept. 22, 2015) (deeming eight documents, including four e-mails, incorporated by
reference in complaint, because “documents [were] clearly referenced by the
[c]omplaint” and “highly relevant”).
Even when a complaint incorporates a document by reference, a court adjudicating a
motion to dismiss may consider that document only if “there is no dispute regarding
[the document’s] authenticity, accuracy[,] or relevance.” In re PetroChina Co. Ltd. Sec.
Litig., 120 F. Supp. 3d 340, 354 (S.D.N.Y. 2015), aff’d sub nom. Klein v. PetroChina Co.,
644 F. App’x 13, 14 (2d Cir. 2016) (summary order); accord Faulkner v. Beer, 463 F.3d
130, 134 (2d Cir. 2006). Such is the case here. In her opposition submissions, Plaintiff
raised no objection to Defendants’ introduction of, and reliance on, the e-mail chain.
The Court, moreover, is confident that the e-mail chain is authentic, accurate, and
relevant: The e-mail chain is the sine qua non of the Amended Complaint, and the
Amended Complaint’s allegations about the e-mail chain align with the content of the emails themselves. Accordingly, the Court will consider the e-mail chain when
evaluating the sufficiency of the Amended Complaint.
3

It is unclear from the Amended Complaint whether the participants in the skit were
singing an existing song that contained such lyrics, a parody of an existing song, or an
entirely original musical composition.

3

“Plaintiff was highly offended by the video[.]” (AC ¶ 15). On the morning
of June 16, 2015, she “replied all” to Pacheco’s e-mail, writing:
It took me a while to be fully sure what I was hearing in
one of the videos was really what I was hearing. It is all
right to have fun, but we have to be very conscious not
to offend anyone especially as managers; because we
need to be examples to our employees. The language is
offensive and should not be part of our vocabulary.
(E-mails 1; AC ¶ 15).
Chiew responded to Plaintiff’s e-mail on the evening of June 16.
(AC ¶ 17; E-mails 1). Unlike Plaintiff, Chiew did not reply to every
recipient of Pacheco’s first e-mail — he wrote directly to Plaintiff, copying
one other Staybridge employee. (E-mails 1). Chiew “admonish[ed]
Plaintiff for sending out the e[-]mail in which Plaintiff voiced her objection
to the video.” (AC ¶ 17). Chiew wrote: “I expected nothing less than
respectful/conscious as you’ve indicated to have ‘replied all.’” (E-mails
1). And Chiew added that he “expect[ed]” Plaintiff to send an e-mail
“publically apologiz[ing] to” Pacheco by “tomorrow morning.” (Id.). Chiew
concluded his e-mail by explaining to Plaintiff that Pacheco had already
been disciplined for her conduct; Chiew and another Staybridge
employee had “spoke[n] directly to” Pacheco on June 13 (the day Pacheco
e-mailed the video). (Id.).
Plaintiff refused to apologize. (AC ¶ 18). She responded to Chiew’s
e-mail on June 17, 2015, writing that she had “replied all” precisely
because Pacheco had sent the video to a group of Staybridge employees.
(E-mails 1). “[M]y response,” Plaintiff wrote, “was to everyone so that
4

they are all aware that this type of language is offensive and racist and
should not be used[,] especially in the workplace.” (Id.). Plaintiff
reminded Chiew that she “ha[d] employees that are African
American” — and she asked Chiew to consider how those employees
might have reacted to the video. (Id.). Apologizing for replying to
Pacheco’s e-mail, Plaintiff wrote, would “go[] against [Plaintiff’s] belief and
standard.” (Id.). The Amended Complaint discloses no further
communications between Plaintiff and Chiew on this subject.
Thereafter, according to Plaintiff, Chiew “refused to speak to
Plaintiff unless he had to.” (AC ¶ 19). Plaintiff does not contend that
Chiew’s work-related conversations with her were testy or somehow
different in kind; rather, Chiew no longer said “good morning” or “good
night” to Plaintiff. (Id.).
Plaintiff retired from Staybridge in January 2016. (AC ¶ 11).
Plaintiff does not allege that her retirement was motivated by the incident
that gave rise to this lawsuit. (See Pl. Opp. 1 (“Plaintiff has not
maintained that she left her position other than voluntarily.”)).
B.

Procedural Background
Plaintiff filed her initial Complaint on June 29, 2016. (Dkt. #1). After

Defendants filed a letter announcing their intention to move to dismiss the
Complaint (Dkt. #6), the Court held a pre-motion conference on October 27,
2016 (10/27/16 Minute Entry). Pursuant to that conference, Plaintiff filed her
Amended Complaint — the operative complaint in this case — on November 14,
5

2016. (Dkt. #12). Defendants moved to dismiss the Amended Complaint on
December 9, 2016. (Dkt. #15-17). Plaintiff opposed the motion on January 10,
2017 (Dkt. #18), and briefing concluded when Defendants filed their reply on
January 23, 2017 (Dkt. #19).
DISCUSSION
Plaintiff alleges that Defendants created a hostile work environment in
violation of Title VII, the NYSHRL, and the NYCHRL. The events giving rise to
those claims, as presented in the Amended Complaint, are few. At this stage,
Plaintiff’s suit presents a narrow question: Does the Amended Complaint
allege plausibly that Pacheco’s group e-mail, Chiew’s e-mail to Plaintiff, and
Chiew’s reaction when Plaintiff refused to apologize to Pacheco, fostered an
actionable hostile work environment?
Even accepting all of the Amended Complaint’s allegations as true, the
Court concludes that the answer to this question is “no.” This is so even
though the video Pacheco circulated was perceived (not incorrectly) by Plaintiff
to be racist and offensive. And this is so even though Plaintiff was entitled to
express publicly her offense at the video. Ultimately, and as discussed herein,
the Amended Complaint falls far short of stating a cognizable hostile work
environment claim under Title VII. That conclusion eliminates Plaintiff’s lone
federal claim from this suit, and the Court declines to exercise supplemental
jurisdiction over Plaintiff’s NYSHRL and NYCHRL claims.
The rest of this Opinion proceeds in two parts. First, the Court will
address why Plaintiff has failed to state a claim for relief under Title VII.
6

Second, the Court will explain why it is declining supplemental jurisdiction
over Plaintiff’s NYSHRL and NYCHRL claims.
A.

Plaintiff Has Not Alleged a Plausible Hostile Work Environment
Claim Under Title VII
1.

Applicable Law

Two well-settled, interlocking legal principles guide this segment of the
Court’s analysis. The first is the pleading standard a complaint must satisfy to
survive a Rule 12(b)(6) motion to dismiss. The second is the showing a plaintiff
must make to state a cognizable Title VII hostile work environment claim.
Rule 12(b)(6): “To survive a [Rule 12(b)(6)] motion to dismiss, 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.” Id. And “[w]here a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief,’” and therefore cannot withstand a motion
to dismiss. Id. (internal quotation marks omitted) (quoting Twombly, 550 U.S.
at 557).
Title VII: “To establish a hostile work environment under Title VII, … a
plaintiff must show that ‘the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
7

environment.’” Littlejohn v. City of N.Y., 795 F.3d 297, 320-21 (2d Cir. 2015)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “This standard
has both objective and subjective components: [T]he conduct complained of
must be severe or pervasive enough that a reasonable person would find it
hostile or abusive, and the victim must subjectively perceive the work
environment to be abusive.” Id. at 321 (quoting Raspardo v. Carlone, 770 F.3d
97, 114 (2d Cir. 2014)). The Second Circuit has explained that a prima facie
Title VII hostile work environment claim has three elements — “a plaintiff must
plead facts that would tend to show that the complained of conduct”:
[i] [I]s objectively severe or pervasive — that is, ...
creates an environment that a reasonable person would
find hostile or abusive; [ii] creates an environment that
the plaintiff subjectively perceives as hostile or abusive;
and [iii] creates such an environment because of the
plaintiff’s [protected characteristic].
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks
and citation omitted).
But to survive a Rule 12(b)(6) motion to dismiss, a Title VII complaint
does not need to establish every element of a prima facie hostile work
environment claim. “At the motion to dismiss stage, … ‘a plaintiff need only
plead facts sufficient to support the conclusion that she was faced with
harassment ... of such quality or quantity that a reasonable employee would
find the conditions of her employment altered for the worse.’” Cowan v. City of
Mount Vernon, No. 14 Civ. 8871 (KMK), 2017 WL 1169667, at *4 (S.D.N.Y.
Mar. 28, 2017) (internal quotation marks omitted) (quoting Patane, 508 F.3d at

8

113). “As a practical matter, however, while a plaintiff need not allege specific
facts establishing a prima facie case of discrimination in order to withstand a
motion to dismiss, the elements of a prima facie case often provide an outline
of what is necessary to render a plaintiff’s claims for relief plausible.” Carter v.
Verizon, No. 13 Civ. 7579 (KPF), 2015 WL 247344, at *5 (S.D.N.Y. Jan. 20,
2015); see, e.g., Johnson v. J. Walter Thompson U.S.A., LLC, — F. Supp. 3d —,
No. 16 Civ. 1805 (JPO), 2016 WL 7217847, at *6-9 (S.D.N.Y. Dec. 13, 2016)
(considering all three factors of a prima facie Title VII hostile work environment
claim in order to determine whether complaint survived motion to dismiss). In
any case, “[i]n evaluating whether the circumstances” set forth in a complaint
“suffice to find a hostile work environment, the [Second Circuit] has ‘repeatedly
cautioned against setting the bar too high.’” Lewis v. Roosevelt Island
Operating Corp., — F. Supp. 3d —, No. 16 Civ. 3071 (ALC), 2017 WL 1169647,
at *6 (S.D.N.Y. Mar. 28, 2017) (quoting Patane, 508 F.3d at 113).
At bottom, a court tasked with determining whether a work environment
was actionably hostile “must consider the totality of the circumstances.”
Littlejohn, 985 F.3d at 321. Factors relevant to this analysis include: “[i] the
frequency of the discriminatory conduct; [ii] its severity; [iii] whether it is
threatening and humiliating, or a mere offensive utterance; and [iv] ‘whether it
unreasonably interferes with an employee’s work performance.’” George v.
Prof’l Disposables Int’l, Inc., 221 F. Supp. 3d 428, 452 (S.D.N.Y. 2016) (internal
quotation marks omitted) (quoting Patane, 508 F.3d at 113). This analysis is
“highly context-dependent,” and courts assessing a workplace’s hostility
9

“should evaluate the facts holistically rather than ‘view individual incidents in
isolation’ or in a ‘piecemeal fashion.’” Johnson, 2016 WL 7217847, at *5-6
(quoting Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012)).
“Generally, unless an incident of harassment is sufficiently severe,
‘incidents must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive.’” Gorzynski v. JetBlue Airways
Corp., 596 F.3d 93, 102 (2d Cir. 2010) (quoting Alfano v. Costello, 294 F.3d
365, 374 (2d Cir. 2002)). But “a single act can create a hostile work
environment if it in fact works a transformation of the plaintiff’s workplace.”
Green v. Jacob & Co. Watches, Inc., — F. Supp. 3d —, No. 15 Civ. 3611 (PAC),
2017 WL 1208596, at *7 (S.D.N.Y. Mar. 31, 2017) (quoting Feingold v. New
York, 366 F.3d 138, 150 (2d Cir. 2004)). “[T]hat single act must be
‘extraordinarily severe’” to rise to the level of a Title VII violation. Id. (quoting
Alfano, 294 F.3d at 374).
2.

Analysis

Even with a minimal pleading burden in her favor, Plaintiff has not
stated a claim for relief under Title VII. Nothing in the Amended Complaint
suggests that a reasonable person, after receiving Pacheco’s e-mail and being
admonished by Chiew, “would find the conditions of her employment altered
for the worse.” Cowan, 2017 WL 1169667, at *4 (internal quotation mark
omitted) (quoting Patane, 508 F.3d at 113). The totality of circumstances set
forth in the Amended Complaint make plain that Plaintiff experienced an

10

unfortunate, offensive workplace incident. They do not, however, establish that
Plaintiff’s work environment was hostile in violation of Title VII.
The Court considers first Pacheco’s e-mail attaching the video, which email is the genesis of Plaintiff’s suit and “[t]he essence of Plaintiff’s” Amended
Complaint. (Pl. Opp. 1). The Court credits completely Plaintiff’s allegation that
she “was highly offended by the video.” (AC ¶ 15). Pacheco should not have
sent it. But the Second Circuit has affirmed — repeatedly — that “[f]or racist
comments, slurs, and jokes to constitute a hostile work environment … there
must be more than a few isolated incidents of racial enmity.” Aulicino v. N.Y.C.
Dep’t of Homeless Servs., 580 F.3d 73, 83 (2d Cir. 2009) (quoting Schwapp v.
Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997)); accord, e.g., Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 724 (2d Cir. 2010); see also
Schwapp, 118 F.3d at 110 (“As the Supreme Court has stated, ‘mere utterance
of an ... epithet which engenders offensive feelings in an employee’ does not
sufficiently affect the conditions of employment to implicate Title VII.” (internal
quotation marks omitted) (quoting Harris, 510 U.S. at 21)). Nor does “the
sending of a single offensive e-mail … create a hostile work environment.”
Curtis v. DiMaio, 46 F. Supp. 2d 206, 213 (E.D.N.Y. 1999) (citing Owens v.
Morgan Stanley & Co., Inc., No. 96 Civ. 9747 (DLC), 1997 WL 403454, at *2
(S.D.N.Y. July 17, 1997)), aff’d, 205 F.3d 1322 (2d Cir. 2000) (unpublished
disposition). Plaintiff insists that Pacheco’s circulation of the video, standing
alone, establishes a cognizable hostile work environment claim. (Pl. Opp. 2).
Ample precedent demonstrates that Plaintiff is mistaken.
11

Plaintiff argues, in the alternative, that Pacheco’s e-mail cannot be
reduced to “a one-time event because it was published to at least 12 or 13
other co-workers.” (Pl. Opp. 5). This argument misses its mark: Pacheco sent
a single e-mail, attaching a single video in which Staybridge employees used
the word “nigger.” And that isolated incident, though reprehensible, did not
render Plaintiff’s work environment hostile within the meaning of Title VII.
Compare Boakye-Yiadom v. Laria, No. 09 Civ. 622 (DRH), 2012 WL 5866186, at
*10 n.2 (E.D.N.Y. Nov. 19, 2012) (“While certainly offensive, the single use of
the word ‘nigger’ or any other racial epithet is not enough to establish a hostile
work environment claim.”), with Green, 2017 WL 1208596, at *7 (plaintiff
plausibly alleged a hostile work environment claim under the NYSHRL and 42
U.S.C. § 1981, where plaintiff overheard employers make “multiple comments
about employees not ‘fitting the image of the store’ or referring to them as
‘monkeys’” (internal quotation marks omitted)).
One more contextual point about Pacheco’s e-mail bears mention here.
At the time Pacheco e-mailed the video, both she and Plaintiff held
management positions at Staybridge. Indeed, many of the recipients of
Pacheco’s e-mail were managers at Staybridge, a point Plaintiff underscored in
her reply-all response when she counseled her co-workers “to be very
conscious not to offend anyone especially as managers” and “to be examples to
our employees.” (E-mails 1). This undercuts Plaintiff’s claim that Staybridge is

12

liable for creating a hostile work environment in violation of Title VII.4 “An
employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998). But “[e]mployers are not generally liable for
the harassing behavior of a plaintiff’s co-workers.” Hill v. Rayboy-Brauestein,
467 F. Supp. 2d 336, 359 (S.D.N.Y. 2006). To the contrary, “employers are not
vicariously liable for the actions of a mere co-worker that create a hostile work
environment unless the plaintiff can show that ‘the employer knew (or
reasonably should have known) about the harassment but failed to take
appropriate remedial action.’” Dawson v. Cty. of Westchester, 351 F. Supp. 2d
176, 188 (S.D.N.Y. 2004) (quoting Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d
Cir. 2004)).
Here, just the opposite occurred: Chiew, Staybridge’s General Manager,
knew about Pacheco’s e-mail attaching the offensive video, because Pacheco
sent that e-mail to Chiew. And on the same day Pacheco sent the email — June 13, 2015 — Chiew and another Staybridge employee spoke to

4

The Amended Complaint does not clearly state whether Plaintiff brings her Title VII
claim against both Staybridge and Chiew, although it appears that Plaintiff brings that
claim against Staybridge alone. (Compare AC ¶ 22 (alleging in support of Title VII claim
that “Defendant Staybridge engaged in these discriminatory practices[.]”), with id. at
¶ 25 (alleging in support of NYSHRL claim that “Defendants have discriminated against
Plaintiff[.]”)). To be clear: Chiew cannot be liable under Title VII, because “[t]here is no
individual liability under Title VII.” Gomez v. N.Y.C. Police Dep’t, 191 F. Supp. 3d 293,
302 (S.D.N.Y. 2016).

13

Pacheco about it. Chiew, in other words, “t[ook] appropriate remedial action”
when he learned about an incident of harassment at Staybridge. Dawson, 351
F. Supp. 2d at 188 (internal quotation mark omitted) (quoting Petrosino, 385
F.3d at 225). Thus, even if Pacheco’s act of circulating a racist video
constituted actionable harassment under Title VII, the Amended Complaint
does not suggest that Staybridge would be liable for it.
Plaintiff concedes that the other events that form the basis of her
Amended Complaint — Chiew’s e-mail to Plaintiff, and Chiew’s subsequent
iciness towards Plaintiff — “standing alone or together,” are not “sufficient to
establish a hostile work environment claim.” (Pl. Opp. 2). Instead, she
suggests that Chiew’s treatment of Plaintiff, viewed alongside Pacheco’s e-mail,
created a hostile work environment. (Id.). The Court is mindful that it must
assess “the totality of the circumstances” when evaluating Plaintiff’s hostile
work environment claim. Littlejohn, 985 F.3d at 321. Here, those
circumstances confirm that Plaintiff’s work environment was not hostile.
Chiew’s e-mail to Plaintiff, and his subsequent brusqueness towards
Plaintiff, were facially neutral reactions to Plaintiff’s workplace behavior. It is
true that “[f]acially neutral incidents may be included ... among the ‘totality of
the circumstances’ that courts consider in any hostile work environment claim,
so long as a reasonable fact-finder could conclude that they were, in fact,
based on” a plaintiff’s protected characteristic. Kaytor v. Elec. Boat Corp., 609
F.3d 537, 547 (2d Cir. 2010) (quoting Alfano v. Costello, 294 F.3d 365, 378 (2d

14

Cir. 2002)). But Plaintiff gives the Court no reason to conclude that Plaintiff’s
race played a role in Chiew’s treatment of her.
More elementally, the Amended Complaint does not explain why a
reasonable person would believe that Chiew’s treatment of Plaintiff made
Plaintiff’s work environment worse. Chiew did not admonish Plaintiff for
expressing offense at Pacheco’s video. He took issue with the fact that Plaintiff
did so publicly. Chiew’s reprimand of Plaintiff, moreover, was private: He did
not criticize Plaintiff in front of her peers, but instead wrote a direct e-mail to
Plaintiff and one other Staybridge employee. And although Chiew initially
ordered Plaintiff to apologize to Pacheco, he did not push back when Plaintiff
refused to do so.
As for the fact that Chiew stopped saying “good morning” and “good
evening” to Plaintiff, it is axiomatic “that Title VII is not a ‘general civility code.’”
Beale v. Mount Vernon Police Dep’t, 895 F. Supp. 2d 576, 586 (S.D.N.Y. 2012)
(internal quotation marks omitted) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)). Nor does “Title VII … prohibit employers from
maintaining nasty, unpleasant workplaces[.]” Hiralall v. Sentosacare, LLC,
No. 13 Civ. 4437 (GBD), 2016 WL 1126530, at *10 (S.D.N.Y. Mar. 18, 2016)
(quoting Krasner v. HSH Nordbank A.G., 680 F. Supp. 2d 502, 513 (S.D.N.Y.
2010)), appeal dismissed (May 12, 2016). And because nothing in the
Amended Complaint suggests that Chiew ceased exchanging pleasantries with
Plaintiff because of her race, Chiew’s behavior likewise does not support
Plaintiff’s Title VII claim.
15

In sum, the totality of circumstances surrounding Pacheco’s e-mail and
Plaintiff’s subsequent interactions with Chiew establish that Staybridge did not
create a hostile work environment. And because Plaintiff has not requested
leave to further amend her Title VII claim, the Court dismisses that claim with
prejudice. See Gallop v. Cheney, 642 F.3d 364, 369-70 (2d Cir. 2011).
B.

The Court Declines to Exercise Supplemental Jurisdiction Over
Plaintiff’s NYSHRL and NYSHRL Claims
1.

Applicable Law

Under 28 U.S.C. § 1367(c)(3), a district court has discretion to “decline to
exercise supplemental jurisdiction over” pendent state-law claims “if … the
district court has dismissed all claims over which it has original jurisdiction.”
“Once a district court’s discretion is triggered under § 1367(c)(3), it balances
the traditional ‘values of [i] judicial economy, [ii] convenience, [iii] fairness, and
[iv] comity,’ in deciding whether to exercise jurisdiction.” Kolari v. N.Y.Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988)); accord United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726-27 (1966); cf. Benjamin v. N.Y.C. Dep’t of Health, 144
F. App’x 140, 142 (2d Cir. 2005) (summary order) (“In assessing whether
§ 1367(c)(3) discretion has been appropriately exercised, this Court looks
mainly to whether a District Court reached unsettled issues of state law and to
whether disposition was supported by significant considerations of judicial
economy.” (emphasis added)). Those factors generally tilt toward dismissing
state-law claims: “[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the
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pendent jurisdiction doctrine … will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Cohill, 484 U.S. at 350 n.7;
see also Motorola Credit Corp. v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (“[O]ur
Court has held, as a general proposition, that ‘if [all] federal claims are
dismissed before trial ..., the state claims should be dismissed as well.’”
(emphasis in original) (quoting Castellano v. Bd. of Trustees, 937 F.2d 752, 758
(2d Cir. 1991)).
2.

Analysis

Because the Court has dismissed Plaintiff’s Title VII claim, only her
NYSHRL and NYCHRL claims remain. And because all four of the Gibbs factors
suggest that the Court should decline supplemental jurisdiction over those
claims, the Court will dismiss them. 5
First, judicial economy counsels in favor of dismissing Plaintiff’s NYSHRL
and NYCHRL claims, given this case’s limited record and short procedural
history. See Chenensky v. N.Y. Life Ins. Co., 942 F. Supp. 2d 388, 392
(S.D.N.Y. 2013). Second, the Court can see nothing inconvenient about
requiring the parties to litigate their dispute in New York state court. Third,
declining jurisdiction would not “prejudice the parties,” id., given that they

5

Defendants urge the Court to exercise supplemental jurisdiction over Plaintiff’s NYSHRL
(but not her NYCHRL) claim. (Def Br. 8 n.3). But the case Defendants cite in support of
that argument — Rivera v. Rochester Genesee Regional Transportation Authority, 743
F.3d 11 (2d Cir. 2014) — does not address 28 U.S.C. § 1367(c)(3). Rather, the text of
Rivera that Defendants cite quotes directly from 28 U.S.C. § 1367(c)(1), (2), and (4),
which provide analytically distinct grounds for district courts to decline supplemental
jurisdiction over pendent state claims. (Def. Br. 8 n.3 (quoting Rivera, 743 F.3d at 28)).
28 U.S.C. § 1367(c)(3) and case law interpreting it, in contrast, confirm that
supplemental jurisdiction is not called for here.

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have thus far invested limited time litigating this case. And finally, comity
interests militate in favor of declining jurisdiction: Plaintiff seeks relief under
the NYSHRL and the NYCHRL, both of which protect the rights of New York
workers, and both of which provide for more expansive liability than Title VII.
See Emmanuel v. Cushman & Wakefield, Inc., No. 13 Civ. 2894 (GHW), 2015
WL 5036970, at *9-10 (S.D.N.Y. Aug. 26, 2015) (declining supplemental
jurisdiction over plaintiff’s NYCHRL claim after dismissing Title VII claims, in
part because of “the NYCHRL’s uniquely broad and remedial purposes,” and
noting that “courts in this District frequently decline to exercise supplemental
jurisdiction over NYCHRL claims” (alterations and citation omitted)); Lioi v.
N.Y.C. Dep’t of Health & Mental Hygiene, 914 F. Supp. 2d 567, 594-95
(S.D.N.Y. 2012) (declining supplemental jurisdiction over plaintiff’s NYSHRL
and NYCHRL claims after dismissing Title VII claims and noting that the
NYSHRL, unlike Title VII, allows for “supervisory liability”).
Here, “Plaintiff[’s] federal-law claims [have been] eliminated on a motion
to dismiss, prior to the investment of significant judicial resources, and [the
Court] can discern no extraordinary inconvenience or inequity occasioned by
permitting the claims to be refiled in state court where they will be afforded a
‘surer-footed reading of applicable law.’” Kolari, 455 F.3d at 123-24 (quoting
Gibbs, 383 U.S. at 726). The Court accordingly declines supplemental
jurisdiction over Plaintiff’s NYSHRL and NYCHRL claims, and both claims are
dismissed without prejudice to their refiling in state court.

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CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss is
GRANTED. The Clerk of Court is directed to terminate all pending motions,
adjourn all remaining dates, and close this case.
SO ORDERED.
Dated:

June 20, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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