Jones v. Bloomingdale's

Filing 21

MEMORANDUM OPINION AND ORDER: re: 11 MOTION to Dismiss Complaint, filed by Bloomingdale's. For the reasons stated above, Defendant's motion is granted as to Plaintiffs federal claims and the Court declines jurisdiction as t o Plaintiffs remaining state-law claims. The case is dismissed without prejudice and Jones is granted leave to amend the complaint to correct the deficiencies noted in this memorandum opinion, so long as his amendments are made in good faith. Pla intiff shall file his first amended complaint no later than April 9, 2018. If Plaintiff fails to do so by that time, this case will be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 11, and as further set forth in this order. Motions terminated: 11 MOTION to Dismiss Complain, filed by Bloomingdale's, (Amended Pleadings due by 4/9/2018.) (Signed by Judge Ronnie Abrams on 3/8/2018) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 3/8/2018

DEREK PRESTON JONES,
Plaintiff,
v.

17-CV-1974 (RA)
MEMORANDUM OPINION AND
ORDER

BLOOMINGDALE'S,
Defendant.
RONNIE ABRAMS, United States District Judge:

Derek Jones, proceeding pro se, brings this suit against Bloomingdale's, Inc., asserting
claims for discrimination on the basis of his race, sex, and other characteristics under federal, state,
and local laws. Defendant moved to dismiss, and Plaintiff responded. For the reasons that follow,
Defendant's motion is granted. In light of Plaintiffs pro se status, however, Plaintiff is also
granted leave to file an amended complaint. All amendments to the complaint must be made in
good faith, and Plaintiff must file the amended complaint by April 9, 2018. If Plaintiff fails to file
an amended complaint by that date, this case will be dismissed with prejudice.

BACKGROUND
I.

Factual Background
The following facts are drawn from the complaint and the EEOC Intake Questionaire that

Plaintiff attached to the complaint. These facts are assumed to be true for the purposes of resolving
Defendant's motion to dismiss. See Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017).
In October 1998, Derek Jones was hired as a sales associate at Bloomingdale's. He worked
there without incident for five years. Sometime around 2004, a woman named Bea Bagdziunas
became the head of the store's HR department. Jones alleges that she "just did not like black

people in general" and that she had a problem with him because he is a black male. According to
Jones, Bagdziunas started harassing him and "slandering [his] name throughout the store to
management and sales associates." He alleges that she made him "take a drug test" at some point
and "continued to harass" him after the test came back negative. The following year, she required
Jones to prove that he was an American citizen. Jones further alleges that Bagdziunas "had
managers try to set [him] up for customer complaints" and that she tried to suspend him without
pay after he had a disagreement with his manager. At some point, a manager told Jones that "they
love to destroy the brothers," meaning black men.
On October 8, 2009, Jones resigned from his position at Bloomingdale's. He alleges that,
since then, he has been "apply[ing] for jobs weekly" and he "get[s] rejected because" of negative
references from Bloomingdale' s. He asserts that Bloomingdale' s has been "slandering [his] name"
to other employees and that they have "made it very very hard for [him] to get a job within the last
six years." 1
II.

Procedural History

On October 28, 2015, Jones completed an EEOC Intake Questionnaire, in which he
indicated that he wanted to file a charge of discrimination on the basis of race against
Bloomingdale's. In January 2017, the EEOC provided Jones with a Notice of Dismissal and Right
to Sue.
Jones thereafter filed this lawsuit against Bloomingdale's. In the complaint, he asserts
violations of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of

1

Jones uses identical "within the last six years" language in both his 2017 complaint and his 2015
EEOC Intake Questionnaire (in fact, both documents contain an entire identical attached page of
allegations). Given that Jones left Bloomingdale's in 2009, the language appears to refer to the
six years before he submitted his EEOC form (2009 to 2015), rather than to the six years before
he filed the complaint (2011 to 201 7).
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1990, the New York State Human Rights Law ("NYSHRL"), and the New York City Human
Rights Law ("NYCHRL"). He identifies the failure to promote him, unequal terms and conditions
of his employment, and harassment as the discriminatory conduct of which he complains. He
further asserts that the alleged discrimination was based on his race, color, and gender/sex.
Bloomingdale's now moves to dismiss the complaint, arguing that Jones's claims are
untimely, unexhausted, and otherwise insufficiently pled. In Jones's opposition papers, Jones
alleges facts not included in the complaint. For the first time, he alleges that his "failure to
promote" claim was based on an incident in which a Bloomingdale's "shop manager" position
became open but was never posted because a man named David Fisher forced the company to hire
his sister-in-law. For that reason, Jones alleges, "no one had the opportunity to apply for that job
in that department." He also alleges for the first time that "Ms. Bagdziunas made it known that
they wanted to eliminate the positions of Black individuals[,] particularly Black Men." His
response also includes new facts about his failure to get a job after he left Bloomingdale's:
After obtaining no help from my union, I decided to leave
Bloomingdales . . . . However, after interviewing at countless
retailers, . . . I noticed a pattern. The interview process would
progress only to the point when references were requested. After
further investigation, it turned out that Bloomingdales had been the
primary if not the only reference called .... [T]he interviews would
always go well[, but] when they would call Bloomingdales my name
and character would get slandered.
As support for these accusations, he attaches to his opposition papers a handwritten list of the
employers that have rejected him over the years.
Finally, Jones contends in his opposition papers that the delay between his resignation and
the filing of his claim was "due to health issues that [he] needed to address and prioritize" and that
he had not realized that his "case may be feasible" until some unidentified time when he was
allegedly informed of his case's merit by the Westside Campaign Against Hunger.

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LEGAL STANDARD
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must plead
"enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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."' Id. (quoting Twombly, 550 U.S. at 557). On a Rule 12(b)(6)
motion, the question is "not whether [the plaintiff] will ultimately prevail," but rather "whether his
complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer, 562 U.S. 521,
529-30 (2011) (internal quotation marks omitted). In answering this question, the Court must
"accept[] all factual allegations as true, but giv[ e] no effect to legal conclusions couched as factual
allegations." Stadnick, 861 F.3d at 35 (quoting Starr v. Sony BMG Music Entm 't, 592 F.3d 314,
321 (2d Cir. 2010)). This Court must construe a prose plaintiffs pleadings liberally. Sealed

Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). But even prose litigants must
still "state a claim to relief that is plausible on its face." Mancuso v. Hynes, 379 Fed. App'x 60, 61
(2d Cir. 2010) (citations omitted).

DISCUSSION
I.

Federal Claims for Discrimination on the Basis of Race, Color, and Sex
Jones asserts that Defendant violated Title VII by harassing him, not promoting him, and

subjecting him to unequal terms and conditions of employment while he worked at
Bloomingdale's. He further contends that, after he left Bloomingdale's, the company continued

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to "slander[]'' his name and give negative references to other potential employers for six years,
allegedly preventing him from obtaining a new job.
A. Workplace Discrimination under Title VII
The first set of Plaintiffs claims are based on alleged discrimination during his
employment at Bloomingdale's, which undisputedly ended in 2009. Defendant argues that these
Title VII workplace discrimination claims must be dismissed because they were not exhausted
with the EEOC in a timely manner. Before plaintiffs may bring Title VII claims in federal court,
they must exhaust their administrative remedies by filing an employment discrimination charge
with the EEOC. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384-85 (2d Cir. 2015); see

also 42 U.S.C. § 2000e-5(e). "An employment discrimination claim must be filed with the EEOC
within 300 days of the alleged discrimination in a state, like New York, with a fair employment
agency." Francis v. Blaikie Grp., 372 F. Supp. 2d 741, 746 (S.D.N.Y. 2005) (citation omitted),

aff'd, 177 F. App'x 121 (2d Cir. 2006). This "administrative exhaustion requirement applies to
pro se and counseled plaintiffs alike," and is subject to equitable defenses such as tolling. Id.
"[T]he burden of pleading and proving" that plaintiffs have not properly exhausted their Title VII
claims "lies with defendants and operates as an affirmative defense." Hardaway v. Hartford Pub.

Works Dep 't, 879 F.3d 486, 491 (2d Cir. 2018). Affirmative defenses may be considered on a
motion to dismiss "only where the defense appears on the face of the pleading and the documents
incorporated therein." Levine v. Columbia Labs., Inc., No. 03 CIV. 8943 (LAK), 2004 WL
1392372, at *1 (S.D.N.Y. June 22, 2004).
Here, Defendant argues that Plaintiffs workplace discrimination claims were not timely
exhausted because the face of the complaint and the EEOC Intake Questionnaire attached to it
show that Plaintiff quit his job in 2009 and did not attempt to file an EEOC charge until October

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2015, well over 300 days later. 2 There is no reason on the face of the complaint and EEOC
questionnaire to think that Jones has an adequate excuse for this six-year delay.
In his opposition to Defendant's motion to dismiss, Jones contends for the first time that
"[t]he claim was filed late due to health issues that [he] needed to address and prioritize" and that
he did not realize that his "case may be feasible" until some unidentified time when he met with
an organization called the "Westside Campaign Against Hunger." Liberally construed, Plaintiff
appears to be making an argument for equitable tolling. The doctrine of equitable tolling applies
"only in rare and exceptional circumstances" where a party "has been prevented in some
extraordinary way from exercising his rights." Francis, 372 F. Supp. 2d at 747 (citation omitted).
To determine whether equitable tolling is appropriate, "a district court must consider whether the
person seeking application of the equitable tolling doctrine ( 1) has 'acted with reasonable diligence
during the time period she seeks to have tolled,' and (2) has proved that the circumstances are so
extraordinary that the doctrine should apply." Zerilli-Edelglass v. NYC Transit Auth., 333 F.3d
74, 80-81 (2d Cir. 2003).

There is some disagreement in this District about whether facts

supporting equitable tolling must be pled in the complaint itself, or whether they can be raised in
opposition to a motion to dismiss. Compare Mira v. Kingston, 218 F. Supp. 3d 229, 236-37
(S.D.N.Y. 2016), with Guo v. IBM 401(k) Plus Plan, 95 F. Supp. 3d 512, 527 (S.D.N.Y. 2015).

2

Defendant in its motion papers assumes that the EEOC Intake Questionnaire here counts as an
EEOC "charge." The Court will do the same, because the Questionnaire here states Jones's intent
to file a charge of discrimination and Defendant has not pointed to any regulatory deficiency that
would preclude the questionnaire from acting as a charge. See Anderson v. City ofNew York, No.
16-CV-1051 (GBD) (KHP), 2017 WL 3251603, at *3 (S.D.N.Y. July 31, 2017) ("The filing of an
EEOC Intake Questionnaire ... may constitute a charge for the purposes of bringing a Title VII
claim ... if it is 'reasonably construed as a request for the agency to take remedial action to protect
the employee's rights or otherwise settle a dispute between the employer and the employee."'
(citation omitted)); see also Fed Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008).

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Even under the more lenient standard permitting Plaintiff to raise new facts in his
opposition papers, however, Jones has failed to allege facts "provid[ing] the Court with some
reason to believe that [he] might have been incapable of filing a charge with the EEOC until [he]
finally did so." Mira, 218 F. Supp. 3d at 237. Jones's assertions that he asked his union about his
claims and that he belatedly discovered his claims' viability do not establish reasonable diligence
during the nearly six-year period between when Jones left Bloomingdale's and when he submitted
his EEOC questionnaire. Moreover, the requirement to file an EEOC charge is "not tolled or
delayed pending the employee's realization that the conduct was discriminatory unless the
employee was actively misled by his employer, he was prevented in some extraordinary way from
exercising his rights, or he asserted his rights in the wrong forum[.]" See Miller v. Int'l Tel. & Tel.
Corp., 755 F.2d 20, 24 (2d Cir. 1985). Thus, Jones's ignorance of the merits of his claims and his
union's alleged failure to advise him about them also do not rise to the level of extraordinary
circumstances that justify tolling. Cf Francis, 372 F. Supp. 2d at 748 (holding that neither
"ignorance of [the] ability to file a charge with the EEOC" nor a plaintiffs attorneys' "alleged
failure to return" documents and provide advice justified tolling).
Jones's assertion of unspecified "health issues" is similarly "insufficient for equitable
tolling purposes," because Jones has not alleged facts indicating that his illness so incapacitated
him that he was "unable to protect [his] legal rights because of an overall inability to function in
society." Mira, 218 F. Supp. 3d at 236-37 (citation omitted). Jones himself admits-in both his
complaint and the EEOC form attached to it-that he was seeking work throughout the six-year
period during which he was allegedly prioritizing his unidentified "health issues." Accepting as
true Plaintiff's allegations in his complaint, the attached EEOC form, and even in his opposition

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papers, Jones has still not plausibly alleged that his poor health rendered him unable to file his
EEOC form until years after the 300-day period expired.
Plaintiff also cannot claim the benefits of the so-called "continuing violation doctrine,"
which sometimes allows plaintiffs who file "a timely EEOC charge about a particular
discriminatory act committed in furtherance of an ongoing policy of discrimination extends the
limitations period for all claims of discriminatory acts committed under that policy even if those
acts, standing alone, would have been barred by the statute of limitations." Francis, 372 F. Supp.
2d at 746-4 7 (citations omitted). This doctrine applies only if "all acts which constitute the claim
are part of the same unlawful employment practice and at least one act falls within the time period."
Nat'/ R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). Meanwhile, "claims of discrete

discriminatory or retaliatory acts" must each be exhausted within the requisite 300-day period
unless some other tolling doctrine applies. Id.; see also id. at 113 ("[D]iscrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in timely filed
charges."). Plaintiff's workplace discrimination and post-employment claims comprise distinct
federal claims. Thus, although Plaintiff's complaint alleges that the discrimination against him
continued for over six years after 2009 through repeated negative references to other potential
employers, that allegation is not enough to protect his workplace discrimination claims from
dismissal. For all these reasons, the Court grants Defendant's motion to dismiss Plaintiff's federal
workplace discrimination claims.
B. Negative-Reference Claims

Plaintiff's remaining claims are based on the alleged negative references and "slander" that
Jones asserts has continued since he stopped working at Bloomingdale's. As an initial matter, any
causes of action for slander or other defamation that Plaintiff may have arise under state law rather

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than federal law. See generally Lee v. Healthfirst, Inc., No. 04 CIV. 8787 (THK), 2007 WL
634445, at *26 (S.D.N.Y. Mar. 1, 2007) ("[C]ourts routinely dismiss state defamation, libel, and
slander claims for want of subject matter jurisdiction once the underlying federal cause of action
is no longer alive." (citation omitted)). Here, the Court addresses only Jones's federal Title VII
claims based on the allegedly negative references.
Jones's complaint appears to assert that Bloomingdale's continued to discriminate against
him on the basis of his race after he left the company. Regardless of whether this claim is construed
as a Title VII discrimination claim or Title VII retaliation claim, Plaintiff must allege facts making
it plausible that the company's allegedly negative references "were made for retaliatory reasons"
or were motivated by discriminatory animus. 3 See Blutreich v. N Shore-Long Island Jewish

Health Sys., Inc., No. 13-CV-8583 (DAB), 2015 WL 1515255, at *5 (S.D.N.Y. Apr. 2, 2015); see
also 42 U.S.C. § 2000e-2(m). He has failed to do so. He has not, for example, alleged any facts
about who at Bloomingdale's provided the allegedly negative references or what they said. Nor
has he alleged any facts supporting his contention that the speaker or speakers providing the
references, whoever they were, expressed negative views of Jones based on discriminatory animus
or for retaliatory reasons. The Court thus "has no reason to draw an inference of causation between
the allegedly negative references and the protected activity" or between the references and
discriminatory animus. See Blutreich, 2015 WL 1515255, at *5; see also Roth v. Farmingdale

3

Courts in this Circuit have upheld retaliation claims under Title VII when a person's former
employer provides negative job references in retaliation for activity protected under that statute.
See Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 178-79 (2d Cir. 2005); see also Thomas v.
iStar Fin., Inc., 438 F. Supp. 2d 348, 365 (S.D.N.Y. 2006) ("Giving negative references or refusing
to give positive references in retaliation for a protected activity has also been considered retaliation
in violation of Title VII."). It is less clear whether Plaintiff can assert a Title VII racial
discrimination claim on the basis of post-employment conduct, but some courts have permitted
similar claims. See Charlton v. Paramus Bd of Educ., 25 F.3d 194, 198 & n.4 (3d Cir. 1994).
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Pub. Sch. Dist., No. 14-CV-6668, 2016 WL 767986, at *6 (E.D.N.Y. Feb. 26, 2016) (dismissing
pro se complaint that was "completely devoid of any factual allegations showing how the

defendant's [conduct] was motivated by plaintiffs" protected characteristics). Jones's negativereference allegations are little more than "speculation premised on ... [his] alleged inability to
find a job" and his assumptions that his prospective employers called Bloomingdale's for a
reference and were provided negative ones due to discrimination or retaliation. See McCalman v.
Partners in Care, No. 01-CV-5844 (FM), 2003 WL 22251334, at *7 (S.D.N.Y. Sept. 30, 2003).

Such conclusory and speculative allegations are insufficient to state a claim under Title VII.
II.

Federal Claims for Discrimination on the Basis of Disability

The Court also grants Defendant's request to dismiss Plaintiffs ADA claim. Generally
speaking, "[t]he ADA 'prohibits discrimination by covered entities, including private employers,
against qualified individuals with a disability.'" Clark v. Jewish Childcare Ass 'n, Inc., 96 F. Supp.
3d 237, 248 (S.D.N.Y. 2015) (citation omitted). Yet Jones's complaint and his response to
Defendant's motion to dismiss provide no factual allegations whatsoever about what his disability
might be, let alone facts supporting an inference that anyone discriminated against him on the basis
of such disability. Furthermore, even Jones's own complaint and EEOC Intake Questionnaire
appear to undermine his ADA claim: when asked what characteristics he believed were the cause
of the alleged discrimination, he did not check the boxes marked "disability." See Compl., Dkt. 2
at 3, 10. Plaintiffs complaint thus cannot be construed to state a claim for discrimination on the
basis of disability and his ADA claim is dismissed.
III.

State-Law Claims and Leave to Amend

The parties in this action are not diverse, because Plaintiff resides in New York City and
Defendant is headquartered there. See 28 U.S.C. § 1332(c)(l). Thus, this Court has jurisdiction

10

over this action only by virtue of Plaintiffs federal claims. See id. §§ 1332(a), 1331. Generally
speaking, Courts decline to exercise supplemental jurisdiction over state-law claims once all
federal claims are dismissed. See Anegada Master Fund, Ltd. v. PXRE Grp. Ltd., 680 F. Supp. 2d
616, 625 (S.D.N.Y. 2010). "In determining whether to continue to retain jurisdiction, district
courts consider factors such as judicial economy, convenience, fairness, and comity." Id. Here,
those factors weigh in favor of declining jurisdiction and dismissing Jones's state-law claims. The
Court does so without prejudice.

CONCLUSION
For the reasons stated above, Defendant's motion is granted as to Plaintiffs federal claims
and the Court declines jurisdiction as to Plaintiffs remaining state-law claims.

The case is

dismissed without prejudice and Jones is granted leave to amend the complaint to correct the
deficiencies noted in this memorandum opinion, so long as his amendments are made in good faith.
Plaintiff shall file his first amended complaint no later than April 9, 2018. If Plaintiff fails
to do so by that time, this case will be dismissed for failure to prosecute under Federal Rule of
Civil Procedure 41.
The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 11.
SO ORDERED.
Dated:

March 8, 2018
New York, New York
Ro e Abrams
United States District Judge

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