Farsetta v. Department of Veterans Affairs

Filing 37

OPINION AND ORDER.....The defendants May 26, 2017 motion to dismiss is granted. The Clerk of Court shall enter judgment for the defendants and close the case. (Signed by Judge Denise L. Cote on 8/24/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
JOSEPH FARSETTA,
:
Plaintiff,
:
:
-v:
:
DEPARTMENT OF VETERANS AFFAIRS and
:
DAVID J. SHULKIN, in his capacity as
:
Secretary of the Department of Veterans:
Affairs,
:
:
Defendants.
:
:
-------------------------------------- X

16cv6124 (DLC)
OPINION AND ORDER

APPEARANCES:
For the plaintiff:
John C. Luke, Jr.
Jonathan A. Tand
Jonathan A. Tand & Associates, P.C.
990 Stewart Avenue
Garden City, NY 11530
For the defendants:
Dominika Natalia Tarczynska
Assistant United States Attorney
Joon H. Kim
Acting United States Attorney
for the Southern District of New York
One St. Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge:
Joseph Farsetta (“Farsetta”) alleges that he was
discriminated against and subjected to a hostile work
environment based on his age, race, and sex while employed at
the Department of Veteran’s Affairs (the “VA”).

He also brings

a claim for “free speech retaliation” under the First Amendment.

For the reasons that follow, the defendants’ motion to dismiss
is granted.
Background
The following facts are drawn from the amended complaint
and are construed in favor of the plaintiff. 1

See Keiler v.

Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir. 2014).
Farsetta is a fifty-seven-year-old white male.

He has worked in

the VA for approximately six years. He is currently working as a
GS13 career employee with the title Program Specialist Series
0301.

He suffers from several serious health ailments and

experienced a heart attack in 2013.
Farsetta’s grievances arise from the period following a
restructuring at the VA in 2014.

Farsetta was assigned a new

supervisor, Jadwiga Kustra (“Kustra”), a female who is younger
than Farsetta.

Her race is not specified.

Deputy Director of the NCO-3 Region.

Kustra became the

Farsetta alleges that

after the reorganization, Kustra and his former supervisor,
Yolanda Borges (“Borges”), “began eliminating opportunities for
males within the department.”

Borges is now the Director for

the NCO-3 Region.

The description that follows is drawn from the amended
complaint, but is written and organized to provide as much
clarity regarding its allegations as possible.
1

2

Beginning in late 2014, Kustra began imposing “unreasonable
workloads” on Farsetta in order to make him fail.

These changes

to his job duties were in violation of “mandatory OPM
guidelines.”

The new work included “menial clerical work far

below his pay grade” and work Kustra herself was supposed to do,
specifically supervising contract employees.

Kustra denied

Farsetta’s request for training in Excel that would have been
helpful in performing the clerical work and “OSHA 30” training. 2
Kustra was aware that Farsetta was in poor health, and this
extra work worsened his medical condition.

Farsetta’s

evaluation for the year 2015 listed goals for the position of
0343 Data Analyst, but correctly identified his job title.
Despite this inconsistency, Farsetta “was intimidated into
signing the document.”
In January 2015, Kustra began requiring Farsetta to use his
“unlimited” sick leave in lieu of his vacation time, which was
capped at six weeks a year, when he needed to take days off for
doctors’ appointments or to care for his ill wife.

Farsetta

The complaint explains that OSHA 30 training is relevant to
construction work. The complaint adds that, although Farsetta
was no longer involved in such work, OSHA 30 training is
“beneficial to all employees”.
2

3

asserts that this practice violated his union contract and meant
that Farsetta “could not accrue any more” vacation time. 3
In February 2015, Farsetta complained to Borges that the
workload of a “black female supervisor” was reduced through the
reorganization.

Farsetta characterizes this as a “reward” given

by management for that employee’s poor performance.
In June 2015, Farsetta complained to Borges that female
staff in the office were given preferential treatment and that
he was being targeted for harassment as the “oldest white male”
in the office.

Farsetta threatened to complain to the VA’s

Equal Employment Opportunity Office (the “EEO”).

On June 27,

2015, Farsetta emailed Cherie Widger-Kresge (“Widger-Kresge”), a
director for NCO-2, about his workload and sick time issues, and
Kustra’s “overall hostility” towards him.
On July 7, Kustra told Farsetta “in an angry and aggressive
manner” that she would be reducing his workload and also that he
would have to complete the work currently being performed by
contract employees who were slated to be released.

Two days

later, Farsetta told Kustra that she was imposing “wholly
unrealistic goals and setting him up to fall short.”

Kustra

immediately called Farsetta to her office, closed the door, and

Neither the amended complaint nor the plaintiff’s memorandum in
opposition to this motion explains how the demand that he use
unlimited sick time prejudiced Farsetta.
3

4

told him in an “angry and aggressive manner”, “who do you think
you are[?]” and “how dare you”.

She called him “disrespectful”

and “insubordinate” when he requested union representation.
Kustra pointed in Farsetta’s face, “scream[ed] at him, and
stepped around her desk to approach Farsetta.”

Farsetta fled to

Borges’ office and told her “that the whole exchange had caused
his blood pressure to spike so high that he feared he would have
a stroke.”

Farsetta went to a hospital emergency room, where he

stayed for approximately seven hours.
A few days later, on July 12, Farsetta was hospitalized for
“unstable angina.”
leave.

Farsetta took several weeks of medical

Kustra did not fill out the necessary forms for

Farsetta’s leave immediately but “eventually acquiesced”.

Among

these forms was a request for “Workers[’] Compensation,” in
which Kustra “denied the incident occurred in the workplace” and
gave a “wholly false account of the events of July 9.”
was denied Workers’ Compensation.

Farsetta

On August 21, 2015, Farsetta

filed an informal complaint with the EEO, alleging
discrimination based on age, race, and sex. 4
Farsetta returned to work on September 21, 2015.

Despite a

request from his psychiatrist that Farsetta not be supervised by
Kustra, he was not assigned a new supervisor immediately.

On

The amended complaint does not explain what activities were the
subject of the August 21 EEO complaint.
4

5

September 22, Widger-Kresge told Farsetta that if he wanted to
transfer to another office he would have to drop his EEO
complaint. 5

On September 23, she changed her mind and advised

Farsetta that she would begin the transfer process.

Although

Farsetta was informed that he would be transferred shortly after
October 1, the transfer did not occur until December.

During

this time he was shunned by upper management.
On October 30, Kustra issued Farsetta a Letter of
Counseling with an inaccurate account of the July 9 events.
When Farsetta wrote a letter rebutting Kustra’s version of the
incident, Kustra “questioned why he believed that he had the
right to respond to her letter.”
More recently, Farsetta has been denied the opportunity to
transfer from contracting to another department.

Farsetta

alleges that he met the posted job requirements, but that the VA
determined that Farsetta was “not qualified” and he was not
“afforded the opportunity for an interview.”
hired a young, black female.

Instead, the VA

The amended complaint does not

identify the position or department to which Farsetta wished to
move, when he applied for the transfer, or explain how he was
disadvantaged by a denial of this opportunity.

As noted above, Farsetta worked in NCO-3, while Widger-Kresge
was a director of NCO-2.
5

6

Farsetta alleges generally that Kustra and Borges demoted
or harassed male or white or older employees.

Most of the

examples given in support of this assertion focus on gender
discrimination and describe instances in which women employees
were promoted or in which men were not treated as well as women.
The specific examples are as follows:
•

Orlando Nieves (a male whose age, race, and title are not
plead) was given a supervisory position, was “set up to
fail in that position”, was replaced by a younger female
employee, and was demoted without being afforded
“graduated discipline”.

•

John Hurban (a male contract review attorney whose age
and race are not plead) declined the job of Division
Chief because he would have had to travel from his home
in Putnam County to work in Northport, New York.

That

position was given instead to Sherin Rabadi (a “series
1102K specialist” whose race and age are not plead), who
was allowed to work at a Bronx office of the VA.

Rabadi

was given this position even though she had no
supervisory experience.

Rabadi had reported to a male

supervisor in health care acquisitions named Selah Scott
(whose race and age are not plead), but Scott was
demoted.

In addition, when Hurban injured himself on the

job, Kustra denied that the injury occurred at work.
7

This resulted in Hurban being denied Workers’
Compensation.

In contrast, Kustra had submitted Workers’

Compensation forms for a woman “despite the fact that no
one at the VA witnessed her injury.”
•

A supervisory position was held open for Stephanie
Bellanger (another “series 1102K specialist” whose age
and race are not plead) until she could complete the
college degree that the position required.

She later

left that position.
•

After the VA required that supervisors have a college
degree, a male supervisor was demoted because he lacked a
degree, but a female supervisor without a degree was
allowed to retain the position.

•

Borges and Kustra promoted four other women (whose
titles, ages, and race are not plead) to supervisory
roles even though the women possessed no supervisory
experience.

They performed poorly and three of them left

the new positions.
•

An “older white Caucasian supervisor” was denied a
reasonable accommodation for her health issues.

8

Farsetta brings several causes of action against the
Secretary of the VA based on these events. 6

They include: (1)

sex discrimination and a hostile work environment in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”); (2) race discrimination and a hostile
work environment in violation of Title VII; (3) age
discrimination and a hostile work environment in violation of
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq. (the “ADEA”); and (4) free speech retaliation in violation
of the First Amendment of the United States Constitution. 7
Farsetta filed the original complaint on August 2, 2016.
On February 14, 2017, the defendants moved to dismiss the
complaint.

A February 15 Order allowed the plaintiff to amend

the complaint and warned that it would be “unlikely that
plaintiff will have a further opportunity to amend.”

After

Farsetta has consented to the dismissal of his claims against
the Department of Veterans Affairs. See 42 U.S.C. § 2000e16(c).
6

Farsetta has consented to dismiss all of his claims brought
under the New York State and New York City Human Rights Laws.
See Rivera v. Heyman, 157 F.3d 101, 105 (2d Cir. 1998)
(affirming dismissal of claims under state and city law because
Title VII provides the exclusive remedy for federal employees
claiming employment discrimination). The ADEA provides a cause
of action for federal employees for age discrimination. See 29
U.S.C. § 633a(a) (“All personnel actions affecting employees or
applicants for employment who are at least 40 years of age . . .
in executive agencies . . . shall be made free from any
discrimination based on age.”).
7

9

receiving two extensions, Farsetta filed an amended complaint on
April 14. 8
dismiss.

On May 26, the defendants renewed their motion to
The motion became fully submitted on June 30.
Discussion

When deciding a motion to dismiss under Rule 12(b), Fed. R.
Civ. P., a court must “accept all allegations in the complaint
as true and draw all inferences in the non-moving party’s
favor.”

LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d

471, 475 (2d Cir. 2009).

“To survive a motion to dismiss under

Rule 12(b)(6), a complaint must allege sufficient facts which,
taken as true, state a plausible claim for relief.”

Keiler, 751

F.3d at 68; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A]
complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its
face.”).

A claim has facial plausibility when “the factual

content” of the complaint “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Tongue v. Sanofi, 816 F.3d 199, 209 (2d

Cir. 2016) (citation omitted).

“Where 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.”

Iqbal, 556 U.S. at 678 (citation

The April 14 complaint principally adds allegations regarding
other employees. It asserts identical claims for relief.
8

10

omitted).

In sum, “a plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (citation omitted).
I.

Discrimination Based on Differential Treatment
Under the ADEA it is “unlawful for an employer . . . to

fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.”
§ 623(a)(1).

29 U.S.C.

Title VII prohibits “discriminat[ion] against any

individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2.

In general, the “same standards govern disparate treatment
claims” arising under either Title VII or the ADEA.

Brennan v.

Metro. Opera Ass’n, Inc., 192 F.3d 310, 316 (2d Cir. 1999).
In order establish a prima facie case of discrimination
under Title VII, a plaintiff must show that “(1) she is a member
of a protected class; (2) she is qualified for her position; (3)
she suffered an adverse employment action; and (4) the
circumstances give rise to an inference of discrimination.”
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d
11

Cir. 2015).

But “an employment discrimination plaintiff need

not plead a prima facie case of discrimination at the motion to
dismiss stage.”

Id. (citation omitted).

To state a claim for

employment discrimination under Title VII, “a plaintiff must
plausibly allege that (1) the employer took adverse action
against him, and (2) his race, color, religion, sex, or national
origin was a motivating factor in the employment decision.”
Shultz v. Congregation Shearith Israel of City of New York, No.
16-3140-CV, 2017 WL 3427130, at *3 (2d Cir. Aug. 10, 2017). 9
At the pleadings stage, then, a plaintiff must allege
that the employer took adverse action against her at
least in part for a discriminatory reason, and she may
do so by alleging facts that directly show
discrimination or facts that indirectly show
discrimination by giving rise to a plausible inference
of discrimination.
Vega, 801 F.3d at 87.

Direct evidence is typically in the form

of remarks made about the plaintiff, or the protected class to
which she belongs.

In determining whether a remark is probative

of discrimination, courts consider four non-exhaustive factors:
(1) who made the remark (i.e., a decision-maker, a
supervisor, or a low-level co-worker); (2) when the
remark was made in relation to the employment decision
at issue; (3) the content of the remark (i.e., whether
a reasonable juror could view the remark as
discriminatory); and (4) the context in which the
remark was made (i.e., whether it was related to the
decision-making process).
A plaintiff bringing suit under the ADEA, however, must
ultimately show that “age was a ‘but for’ cause of” the adverse
action. Delaney v. Bank of Am. Corp., 766 F.3d 163, 168 (2d
Cir. 2014) (citation omitted) (summary judgment).
9

12

Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010)
(summary judgment).
At the pleadings stage, a plaintiff may also allege
disparate treatment by pleading “the more favorable treatment of
employees not in the protected group,” Littlejohn v. City of New
York, 795 F.3d 297, 312 (2d Cir. 2015), who are “similarly
situated in all material respects,” Brown v. Daikin Am. Inc.,
756 F.3d 219, 230 (2d Cir. 2014) (citation omitted).

Whether

the plaintiff and these comparator employees are similarly
situated in “all material respects will vary from case to case,”
and while “[t]he plaintiff’s and comparator’s circumstances must
bear a reasonably close resemblance,” they “need not be
identical.”

Id. (citation omitted).

While “detailed factual

allegations are not required, a formulaic recitation does not
suffice.”

Vega, 801 F.3d at 86 (citation omitted).

An adverse employment action exists if an employee “endures
a materially adverse change in the terms and conditions of
employment.”

Id. at 85 (citation omitted).

This must be “more

disruptive than a mere inconvenience or an alteration of job
responsibilities.”

Id. (citation omitted).

“Examples of

materially adverse employment actions include termination of
employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits,

13

significantly diminished material responsibilities, or other
indices unique to a particular situation.”

Feingold v. New

York, 366 F.3d 138, 152 (2d Cir. 2004) (citation omitted).

A

“disproportionately heavy workload” can constitute an adverse
employment action.

Vega, 801 F.3d at 85.

“A denial of a

transfer may also constitute an adverse employment action, but
we require a plaintiff to proffer objective indicia of material
disadvantage; subjective, personal disappointment is not
enough.”

Beyer v. Cty. of Nassau, 524 F.3d 160, 164 (2d Cir.

2008) (citation omitted).
In opposition to this motion to dismiss, Farsetta contends
that the following five actions constitute adverse employment
actions:

(1) Kustra stripped Farsetta of duties, ordered him to

perform new duties, and overburdened him with work; (2) Kustra
denied him training in Excel and OSHA; (3) Kustra forced him to
use unlimited sick time rather than restricted vacation time;
(4) Farsetta was denied Workers’ Compensation because Kustra
falsely described the July 9 events; and (5) Farsetta was denied
a transfer, either in the form of a delayed reassignment to a
new supervisor in the Fall of 2015 or through a denied
opportunity to transfer to another department at some
unspecified date thereafter. 10
The defendants also argue that Farsetta’s claims regarding the
denial of Workers’ Compensation and the denial of a transfer to
10

14

The amended complaint does not plausibly allege that three
of these actions are significant enough to constitute adverse
employment actions.

They are the denial of training in Excel

and OSHA; the obligation to use unlimited sick leave, rather
than his accrued vacation days, for health-related leave; and
the approximately two month delay in a transfer to a different
supervisor and the failure to transfer Farsetta to some other
unspecified job.

The amended complaint does plausibly allege

that the defendant took adverse employment actions against
Farsetta in his work assignments, when those allegations are
considered as a whole, and in obstructing his effort to obtain
Workers’ Compensation.

another department have not been administratively exhausted,
because Farsetta did not include these facts in his EEO
complaint. “Title VII requires that individuals aggrieved by
acts of discrimination file a charge with the EEOC within 180
or, in states like New York that have local administrative
mechanisms for pursuing discrimination claims, 300 days ‘after
the alleged unlawful employment practice occurred.’” Vega, 801
F.3d at 78–79 (quoting 42 U.S.C. § 2000e–5(e)(1)). “The purpose
of this exhaustion requirement is to give the administrative
agency the opportunity to investigate, mediate, and take
remedial action.” Fowlkes v. Ironworkers Local 40, 790 F.3d
378, 384 (2d Cir. 2015) (citation omitted). The exhaustion
requirement is not a jurisdictional bar, but rather a
precondition of suit subject to equitable defenses. Id. Where
the allegations are “‘reasonably related’ to the discrimination
about which [the plaintiff] had filed an earlier charge . . .
the failure to raise the allegations in the complaint before the
EEOC may not bar federal court proceedings.” Id. at 386-87
(citation omitted).
15

With respect to each of the five alleged adverse employment
actions, however, Farsetta’s discrimination claims fail for a
separate reason.

Farsetta has not met his minimal burden to

plead facts that would give rise to a plausible inference of
discrimination.

He does not plead direct evidence of age, race

or gender discrimination.

Nor does he identify comparators who

were similarly situated in all material respects (except, of
course, for any one of his protected characteristics) and
treated more favorably.
Series 0301.

For example, he is a Program Specialist

He does not identify any other Program Specialist

Series 0301 who was given materially less work and was younger,
female, or non-white.

Nor does he allege that there are any

employees with another job title but roughly equivalent
responsibilities, and for which the work of white, older, and/or
males in that position was more burdensome than the workload of
comparators.

Conversely, many of the allegations in the amended

complaint concern women being given promotions, but the
complaint does not assert that Farsetta ever applied for a
promotion that he was not given, much less that a less qualified
woman was promoted to a position for which he applied.
In opposition to this motion, Farsetta points to only a few
allegations from the amended complaint to argue that they are
sufficient to support a plausible inference of discrimination.
Those allegations are examined here.
16

Farsetta points to only

one comparator for whom the amended complaint suggests that age
may have influenced the VA’s actions. 11

He points to his

allegation that an older, white woman was denied a reasonable
accommodation for her health issues.

Farsetta does not suggest

that he ever requested and was denied an accommodation for a
health issue.

Nor does he plead any other facts that would

reasonable support an inference that this comparator was
similarly situated in ways material to his claims.
The amended complaint’s allegations regarding race are
sparse and Farsetta identifies no comparators in opposition to
this motion to dismiss that he argues are relevant to
allegations regarding race.

Accordingly, this claim can be

swiftly dismissed.
The amended complaint primarily makes allegations regarding
gender.

Again, however, it makes no allegations of explicit

discrimination, such as disparaging comments made about gender.
In opposition to this motion Farsetta focuses on three alleged
comparators.

He argues that there is a plausible inference of

In opposition to the motion, Farsetta also argues that his age
discrimination claim is supported by his awareness that several
older men were targeted for harassment. This conclusory
statement is inadequate to support a plausible claim of
discrimination. He refers as well to Kustra’s denial that John
Hurban was injured on the job. But, the amended complaint
provides no basis to infer that this was due to his age -- his
age is not plead -- and no basis to find that Hurban -- a
contract review attorney -- was similarly situated to Farsetta
in any way relevant to the adverse actions at issue here.
11

17

gender discrimination against him because (1) a male employee,
John Hurban, was denied Workers’ Compensation coverage when
Kustra stated that Hurban did not fall and injure himself at
work; (2) Kustra submitted Workers’ Compensation forms for a
woman “despite the fact that no one at the VA witnessed her
injury”; and (3) a black, female supervisor who could not
effectively manage her section’s workload was rewarded by
“management” by having her workload reduced through the
reorganization.

These exemplars do not provide a basis from

which to infer discriminatory intent.
Starting with the last of the three examples, it is not
relevant to any of the plaintiff’s claims.

Farsetta was not a

supervisor, and he pleads no facts from which it would be fair
to infer that any adjustment made to the female supervisor’s
workload sheds light on the alleged discriminatory animus of the
VA towards Farsetta.

The other two examples touch tangentially

on one of Farsetta’s identified adverse actions:

Kustra’s

alleged misrepresentation of their confrontation on July 9 and
the effect of that misrepresentation on his application for
Workers’ Compensation benefits.

But, the fact that there were

three employees who applied for Workers’ Compensation benefits,
and that the VA supported the application of the female employee
but not the application of the two male employees is
insufficient by itself to create an inference of animus due to
18

gender.

More facts would have to be alleged for the amended

complaint to support a fair inference that these applicants or
applications were similarly situated such that a claim of
discriminatory intent is plausible.
In sum, the complaint does not contain sufficient
information from which to infer that any of the men or women it
mentions were so similarly situated to Farsetta that their
treatment provides any basis from which to infer discriminatory
intent.

Accordingly, the age, race, and gender discrimination

claims must be dismissed.
II.

Hostile Work Environment

Farsetta also alleges that he was subjected to a hostile
work environment based on his age, race, and sex in violation of
Title VII and the ADEA.

“The analysis of the hostile working

environment theory of discrimination is the same under the ADEA
as it is under Title VII.”

Brennan, 192 F.3d at 318.

“In order

to establish a hostile work environment claim under Title VII, a
plaintiff must show that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.”
Shultz, 2017 WL 3427130, at *7 (citation omitted) (motion to
dismiss).

“It is axiomatic that the plaintiff also must show

that the hostile conduct occurred because of a protected
19

characteristic.”

Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir.

2015).
“At the pleading stage of the case, however,
plaintiffs need not plead a prima facie case of
discrimination based on hostile work environment, so
long as they provide in the complaint a short and
plain statement of the claim that shows that
plaintiffs are entitled to relief and that gives the
defendant fair notice of plaintiffs’ claim for hostile
work environment and the grounds upon which that claim
rests.”
Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 241 (2d
Cir. 2007) (citation omitted).
In opposition to this motion to dismiss, Farsetta asserts
that the following allegations plead a hostile work environment:
(1) that Kustra imposed an unreasonable workload on him,
stripped him of duties, and ordered him to perform duties
outside of his job description; (2) that Kustra denied him
training; and (3) that Kustra verbally and physically threatened
Farsetta at the July 9 meeting to the point that he was
hospitalized.

With one exception, this does not plead the

creation of a hostile work environment.

Complaints about work

assignments are not generally sufficient to state a hostile work
environment claim.

See Vega, 801 F.3d at 85 (an “alteration of

job responsibilities” not sufficient to support a hostile work
environment).

Nor are complaints about the denial of desired

but unnecessary training.

See Gregory v. Daly, 243 F.3d 687,

693 (2d Cir. 2001) (allegations of “deprivation of necessary
20

training, that directly interfered with [the plaintiff’s]
ability to do her job” as well as “verbal abuse, ostentatious
and graphic references to sexual assault and women’s
vulnerability to it, and intimidating physical behavior” plead
claim for hostile work environment) (emphasis added).

The

allegations regarding the July 9 incident, however, describe a
sufficiently severe encounter that it may constitute an event
that altered the conditions of Farsetta’s employment.

But, as

discussed above, the amended complaint does not provide a
plausible basis to infer that this incident “occurred because of
a protected characteristic.”

Tolbert, 790 F.3d at 439.

III. Free Speech Retaliation Under the First Amendment
Farsetta purports to bring a “free speech retaliation” claim
under the First Amendment.

He does not identify which acts were

taken in retaliation for the exercise of these rights, but they
would appear to be the approximately two month delay in
transferring him to another supervisor and the failure to
transfer him to some unspecified post after that time.
The United States has not waived sovereign immunity for
constitutional tort claims.
106, 110 (2d Cir. 1994).

Castro v. United States, 34 F.3d

Accordingly, the Court lacks subject

matter jurisdiction over Farsetta’s claim that the VA violated
his First Amendment rights.

21

IV.

Request to Change Legal Theory

Farsetta requests in opposition to this motion that the
court “move forward” on his retaliation claim under Title VII
and the ADEA.

But, the amended complaint does not bring

retaliation claims under those two statutes, and a plaintiff may
not amend the complaint through a brief filed in opposition to a
motion to dismiss.

See Wright v. Ernst & Young LLP, 152 F.3d

169, 178 (2d Cir. 1998).
Nor will Farsetta be given an opportunity to amend his
pleading for a second time.

The defendants moved to dismiss the

original complaint’s claim asserting “free speech retaliation”
in violation of the First Amendment on the ground that there is
no subject matter jurisdiction over that First Amendment claim. 12
The defendants’ brief also identified and argued against any
potential claim “pursuant to Title VII and the ADEA for
retaliation based on prior protected activity.”

A February 15,

2017 Scheduling Order allowed Farsetta an opportunity to amend
his complaint and warned that “[i]t is unlikely that plaintiff
will have a further opportunity to amend.”

Following two

extensions, Farsetta filed an amended complaint on April 14.
reasserts its cause of action for “free speech retaliation” in

It

The amended complaint also brought retaliation claims under
NYCHRL and NYSHRL, which Farsetta consented to dismiss.
12

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violation of the First Amendment.

The defendants then filed

this renewed motion to dismiss.
Given the scheduling orders entered in this case, the
standard set by Rule 16 and not Rule 15 governs this
application.

A district court “does not abuse its discretion in

denying leave to amend the pleadings where the moving party has
failed to establish good cause, as required by Rule 16(b), to
amend the pleadings after the deadline set in the scheduling
order.”

Kassner, 496 F.3d at 243.

“Whether good cause exists

turns on the diligence of the moving party.”

BPP Illinois, LLC

v. Royal Bank of Scotland Grp. PLC, 859 F.3d 188, 195 (2d Cir.
2017) (citation omitted).
Farsetta has not shown good cause to justify further
amendment of the complaint.

Despite having notice of the

pleading deficiency in mid-February, receiving two extensions of
the deadline to amend, and a warning that a further opportunity
to amend was unlikely, the plaintiff failed to remedy the
deficiency in his pleading.

Nor has plaintiff’s counsel

attempted to show good cause in the opposition brief for a
further opportunity to amend.

Accordingly, the plaintiff’s

request to “move forward on claims under Title VII, and the
ADEA” is denied.

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Conclusion
The defendants’ May 26, 2017 motion to dismiss is granted.
The Clerk of Court shall enter judgment for the defendants and
close the case.
Dated:

New York, New York
August 24, 2017
____________________________
DENISE COTE
United States District Judge

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