Mooney v. New York City Department of Sanitation et al

Filing 32

OPINION AND ORDER....The defendants May 23, 2018 motion to dismiss the FAC for failure to state a claim is granted in part. Portions of Mooneys Title VII, NYSHRL, NYCHRL, and Section 1983 claims may proceed as described above. (Signed by Judge Denise L. Cote on 9/12/2018) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------X
:
JANICE MOONEY,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, PAUL VISCONTI, :
Individually and in his Official
:
Capacity and JAVIER LOJAN,
:
Individually and in his Official
:
Capacity,
:
:
Defendants.
:
:
-------------------------------------- X

18cv328(DLC)
OPINION AND ORDER

APPEARANCES
For the plaintiff:
Hope Senzer Gabor
Jonathan A. Tand & Associates, P.C.
1025 Old Country Road, Suite 314
Westbury, New York 11590
For the defendants:
Leora R. Grushka
Bruce Rosenbaum
Zachary W. Carter
Corporation Counsel of the City of New York
100 Church Street
New York, New York 10007
DENISE COTE, District Judge:
Plaintiff Janice Mooney, an employee of the New York City
Department of Sanitation (“DSNY”), an agency of the City of New
York (the “City”), alleges that two of her supervisors,
defendants Paul Visconti and Javier Lojan, discriminated and
retaliated against her in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000a et seq. (“Title VII”), the
New York State Human Rights Law, N.Y. Executive Law § 290 et
seq. (“NYSHRL”), the New York City Human Rights Law, N.Y.C.
Admin. Code § 8-101 et seq. (“NYCHRL”), and 42 U.S.C. § 1983
(“Section 1983”).

The defendants have moved to dismiss the

amended complaint (“FAC”).

For the reasons that follow, the

motion is granted in part.

Background
The following facts are alleged in the FAC.
working for DSNY in 2000.

Mooney began

In 2012, she began working in the

Bronx sub-department as a One-Star Deputy Chief, under the
supervision of defendant Visconti.
In January 2014, Mooney was transferred to the Queens West
sub-department and was no longer under Visconti’s direct
supervision.

Visconti did not provide Mooney her 2013

evaluation until September 2014, when Visconti rated her
“Conditional.”

Mooney was the only employee who did not receive

her evaluation until that time; all other employees received
their evaluations in February 2014.

Mooney contested her

“Conditional” rating, but the review did not occur until August
2015.

This delay prevented Mooney from “qualifying” for a

promotion.

When the review occurred, it did not comply with

DSNY procedures because the Chief of Personnel was not present

2

during the review.

The review left Mooney’s Conditional rating

unchanged.
After Mooney’s transfer to Queens West, she again began
receiving “Superior” ratings.

These ratings resulted in Mooney

being promoted to Executive Officer by Borough Chief Thomas
Albano.

In June 2015, Albano retired and was replaced as

Borough Chief by defendant Lojan.
In February 2016, Lojan removed Mooney from the Executive
Officer position and replaced her with Ignacio Azzara, a male
with less seniority than Mooney.

When Mooney asked Lojan for an

explanation, he told her that he “did not need to give [Mooney]
a reason because he was the boss and that [Mooney] was not his
first choice” for the position.

The removal made it “more

difficult” for Mooney to be promoted.
On April 2, 2016, Mooney oversaw a cleaning job.
informed Mooney that the work was “satisfactory.”

Lojan

Two days

later, Lojan sent Mooney several emails stating that there were
“discrepancies” with the project.
In May 2016, Mooney underwent surgery on her right foot,
and her recovery time took longer than expected.

Mooney sought

to convert scheduled vacations in July and August 2016 to sick
leave.

Lojan, however, docked Mooney two weeks’ vacation

despite her still being eligible to use sick leave.

This

violated DSNY rules, which require the medical department to

3

make sick leave determinations.
When Mooney was first transferred to Queens West, she was
given the use of a locker room with running water.

In November

2016, Lojan took the locker room previously assigned to Mooney
for himself and moved Mooney to “a dilapidated room (which he
indicated was the new female locker room) with no running water
and a ceiling that was falling down.”
Around February 14, 2017, there was a “snow event” that
caused the “entire department” to work.

This was Mooney’s day

off, and Lojan did not permit Mooney to work, thereby denying
her an opportunity to earn overtime pay.

The same week, Lojan

requested that Azzara be assigned work on his scheduled day off
so that Azzara could earn overtime pay.
On February 22, Lojan gave Mooney her 2016 evaluation,
which was “drastically worse” than her previous evaluations.
Mooney was given “Conditional” ratings for many tasks for which
she had previously been rated “Superior.”

The 2016 evaluation

also notes that Mooney had “issues with timeliness and
absences.”

But “none of these incidents were officially

documented in [DSNY’s] absence and lateness log.”

One male DSNY

employee, Joe Austin, arrived two hours late for work once in
March 2017, and “his lateness was not documented, and he was not
disciplined for this infraction.”

In the comments section of

her 2016 evaluation, Mooney wrote that she was not being treated

4

equally as compared to her male coworkers.
In late August or early September 2017, Lojan issued Mooney
an Official Letter of Warning falsely asserting that Mooney had
failed to properly report an incident involving a vehicle.
Mooney wrote on the Official Letter of Warning that “she was not
being treated the same as her male coworkers.”

Then, on

September 12, Lojan issued a second Official Letter of Warning
to Mooney “regarding a lateness which occurred weeks prior.”
Warnings for tardiness were normally issued “the day of the
lateness.”
On September 16, 2017, Lojan approved only two of the three
weeks of leave that Mooney requested.

Then, on September 26,

Lojan assigned Mooney to “cover the night relief” during one of
those two weeks.

There were other male employees who did not

request that week off and who were available to cover the night
relief.
In January 2018, Mooney received a “Satisfactory” 2017
evaluation from her new Borough Chief.

The “sole[]” reason

Mooney received this rating was because of the two warning
letters from Lojan in her file.

As a result of the

“Conditional” rating she received from Lojan in 2016 and the
“Satisfactory” rating she received in 2017, Mooney is

5

“ineligible” to apply for promotions.1
This action was filed on January 12, 2018.

On April 9,

Mooney was transferred to the Queens East sub-department, which
is “known throughout [DSNY] as an unpromotable position.”
defendants filed a motion to dismiss on April 16, to which
Mooney responded by filing the FAC.
The FAC asserts claims of gender discrimination and
retaliation in violation of Title VII, the NYSHRL, and the
NYCHRL, and denial of equal protection in violation of 42 U.S.C.
§ 1983, against DSNY,2 Visconti, and Lojan.

The defendants moved

to dismiss the FAC on May 23, 2018, and the motion became fully
submitted on July 20.

Discussion
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to

The FAC is not entirely clear whether Lojan’s annual
performance evaluation for Mooney for the year 2016 gave Mooney
an overall Conditional rating or only a Conditional rating for
some tasks.
1

In the defendants’ motion to dismiss, they point out that the
FAC names DSNY as a defendant, but that the agencies of the City
of New York (the “City”) are not suable entities. See Nnebe v.
Daus, 644 F.3d 147, 158 n.6 (2d Cir. 2011). Having received no
objection from Mooney, the Court orders DSNY dropped as a
defendant and the City added as a defendant. See Fed. R. Civ.
P. 21 (“On motion or on its own, the court may at any time, on
just terms, add or drop a party.”). The caption of this case
has been amended accordingly.
2

6

relief that is plausible on its face.”

Cohen v. Rosicki,

Rosicki & Assocs., 897 F.3d 75, 80 (2d Cir. 2018) (citation
omitted).

A claim to relief is plausible when the factual

allegations in a complaint “allow[] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Progressive Credit Union v. City of New

York, 889 F.3d 40, 48 (2d Cir. 2018) (citation omitted).

A

court “must accept as true all of the allegations contained in a
complaint, though threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”

Carlin v. Davidson Fink LLP, 852 F.3d 207, 212 (2d

Cir. 2017) (citation omitted).
I. Discrimination Claims
A. Federal and State Discrimination Claims
Title VII makes it unlawful to “discriminate against any
individual with respect to [their] compensation, terms,
conditions, or privileges of employment, because of such
individual’s . . . sex.”

42 U.S.C. § 2000e-2(a)(1).

“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, 867 F.3d 298, 304 (2d Cir. 2017) (citation

7

omitted).

Claims of sex-based discrimination under Title VII

and the NYSHRL are analyzed under the “same standards.”

Walsh

v. N.Y.C. Housing Auth., 828 F.3d 70, 75 (2d Cir. 2016)
(citation omitted).
An adverse employment action is a “materially adverse
change in the terms and conditions of employment” that is “more
disruptive than a mere inconvenience or alteration of job
responsibilities.”

Shultz, 867 F.3d at 304 (citation omitted).

The loss of “overtime opportunities” can be a materially adverse
change in conditions of employment.

Fairbrother v. Morrison,

412 F.3d 39, 56 (2d Cir. 2005), abrogated in part on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53 (2006).

Being given a “less distinguished title” may also

constitute an adverse employment action.

Galabya v. N.Y.C. Bd.

of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citation omitted).
A transfer between positions is an adverse employment
action in only some circumstances.

“Without a real change in

the conditions of employment, a transfer is” not an adverse
action, and in such cases “the fact that the employee views the
transfer either positively or negatively does not of itself
render the . . . transfer an adverse employment action.”
Fairbrother, 412 F.3d at 56 (citation omitted).

“[A] transfer

is an adverse employment action if it results in a change in
responsibilities so significant as to constitute a setback to

8

the plaintiff’s career.”

Galabya, 202 F.3d at 641.

Similarly,

a negative performance evaluation is not an adverse employment
action unless it has “negative ramifications for the plaintiff’s
job conditions.”

Fairbrother, 412 F.3d at 56.

A plaintiff can meet the burden of pleading causation “by
alleging facts that directly show discrimination or facts that
indirectly show discrimination by giving rise to a plausible
inference of discrimination.”

Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 87 (2d Cir. 2015).

“The facts required” to

survive a motion to dismiss “need not give plausible support to
the ultimate question of whether the adverse employment action
was attributable to discrimination,” but must “give plausible
support to a minimal inference of discriminatory motivation.”
Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir.
2015).

“At the pleadings stage, a plaintiff may . . . allege

disparate treatment by pleading the more favorable treatment of
employees not in the protected group, who are similarly situated
in all material respects.”

Farsetta v. Dep’t of Veterans

Affairs, No. 16cv6124(DLC), 2017 WL 3669561, at *5 (S.D.N.Y.
Aug. 24, 2017) (citation omitted).

“[D]etailed factual

allegations are not required” to establish whether a comparator
employee is similarly situated, but “a formulaic recitation”
does not suffice.

Vega, 801 F.3d at 86; Farsetta, 2017 WL

3669561, at *5.

9

To state a hostile work environment claim, a plaintiff must
plead conduct that “(1) is objectively severe or pervasive -that is, creates an environment that a reasonable person would
find hostile or abusive; (2) creates an environment that the
plaintiff subjectively perceives as hostile or abusive; and (3)
creates such an environment because of the plaintiff’s sex.”
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citation
omitted).

A workplace is objectively hostile when it “is

permeated with discriminatory intimidation, ridicule, and
insult.”

McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d

Cir. 2010) (citation omitted).
A plaintiff states a claim against a municipality under
Section 1983 by alleging that they experienced gender
discrimination due to the “policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.”

Back v. Hastings on Hudson Union

Free Sch. Dist., 365 F.3d 107, 128 (2d Cir. 2004) (citation
omitted).

The “relevant practice [must be] so widespread as to

have the force of law” to be actionable under Section 1983.

Id.

(citation omitted).
To state a Section 1983 claim against an individual, a
plaintiff must allege “(a) that the defendant is a person acting
under the color of state law, . . . (b) that the defendant
caused the plaintiff to be deprived of a federal right,” and (c)

10

that the defendant was “personal[ly] involve[d]” in the
deprivation.

Id. at 122 (citation omitted).

“State employment

is generally sufficient to render the defendant a state actor.”
Id. at 123 (citation omitted).
Individuals may not be held liable under Title VII.
Chauca v. Abraham, 841 F.3d 86, 89 n.1 (2d Cir. 2016).

See
A

supervisor may, however, be held liable under the NYSHRL “if
that supervisor actually participates in the conduct giving rise
to the discrimination.”

Feingold v. New York, 366 F.3d 138, 157

(2d Cir. 2004) (citation omitted).
liable under Section 1983.
140, 149 (2d Cir. 2006).

Individuals may also be held

See Demoret v. Zegarelli, 451 F.3d
The motion to dismiss is accordingly

granted to the extent of dismissing Mooney’s Title VII claims
against Visconti and Lojan.
Mooney filed her charge with the EEOC on April 4, 2017, so
events occurring after June 8, 2016 are timely for her Title VII
claims.3

See Duplan v. City of New York, 888 F.3d 612, 621 & n.7

(2d Cir. 2018).

This suit was filed on January 12, 2018.

Although Mooney seeks to take advantage of the so-called
continuing violation doctrine to include events prior to this
date in her lawsuit, the defendants correctly note that, to the
extent Mooney complains of “discrete acts of discrimination or
retaliation,” those acts must have occurred during the
limitations period to be actionable. See Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 105 (2002). Acts outside the
limitations period may, however, be considered when assessing
Mooney’s hostile work environment claim. See id.
3

11

Accordingly, events that occurred after January 12, 2015 are
timely for her Section 1983 claims.

See Duplan, 888 F.3d at 619

(three-year statute of limitations for Section 1983 claims).
The NYSHRL has a three-year statute of limitations, but the
limitations period is tolled during the pendency of EEOC
proceedings.

See Negron v. Bank of Am. Corp., No.

15cv8296(DLC), 2016 WL 7238959, at *1 (S.D.N.Y. Dec. 13, 2016).
Mooney filed her EEOC charge on April 4, 2017, and received a
right-to-sue letter on October 20, 2017, so the limitations
period for her NYSHRL claims is extended by 199 days.
Accordingly, events that occurred after June 27, 2014 are timely
for her NYSHRL claims.
In opposition to this renewed motion to dismiss, Mooney
contends that the following ten events constitute adverse
employment actions.

(1) Visconti and Lojan removed her as

Executive Officer of the Queens West sub-department in February
2016, replacing her with a less experienced male.

(2) In April

2016, Lojan criticized Mooney’s performance overseeing a
cleaning detail in multiple emails.

(3) Lojan required Mooney

to use two weeks of her scheduled vacation time in July and
August 2016 when she would have preferred use sick leave.

(4)

In November 2016, Lojan took Mooney’s locker room for himself
and moved her locker room to a dilapidated room with no running
water.

(5) Lojan did not request Mooney to work overtime on a

12

day in February 2017 when the rest of the Department was
working.

(6) In February 2017, Lojan gave Mooney a Conditional

rating in many areas of her 2016 performance review.

(7) In

September 2017, Lojan permitted Mooney to use only two of the
three weeks of leave time that she requested.

(8) In September

2017, Lojan required Mooney to cover “night relief” for a week
of her two-week leave time.

(9) Because Lojan had issued Mooney

two warning letters in August and September 2017, Mooney’s new
supervisor gave her a Satisfactory rating in 2018 on her 2017
performance review, rendering her ineligible for promotion for
two years.

(10) Finally, in April 2018, DSNY transferred Mooney

to Queens East, which is considered an “unpromotable” position.
Mooney also alleges that her treatment at DSNY constituted a
hostile work environment.
With three exceptions, Mooney has failed to plead a claim
of gender discrimination.

Many of the ten incidents on which

she rests her claims suffer from multiple infirmities.

Some do

not constitute adverse actions, others are time barred, some are
pleaded against ineligible defendants, and for others there is
no plausible claim that gender discrimination animated the
action.
Events 1 and 2 are not timely under Title VII.
1983 claim against the City is also dismissed.

The Section

The FAC does not

allege that either DSNY specifically or the City of New York

13

generally has a policy of discriminating against women
sanitation employees.

And Mooney has not alleged facts that

could support the conclusion that the final decisionmakers
within DSNY engaged in or approved of any gender discrimination.
Accordingly, the motion to dismiss is granted as to her Section
1983 claim against the City.
Several of these ten events do not constitute adverse
actions.

For instance, a negative performance review or a

transfer to another post do not ordinarily constitute adverse
actions, but if the review or transfer affected the plaintiff’s
ability to obtain a promotion, then they may very well be found
to be adverse actions by the fact finder.

Here, in item 9,

Mooney pleads that pursuant to DSNY policy employees are not
eligible for promotion within DSNY for two years after they
receive an overall annual rating of less than Superior or
Outstanding, and that in 2018 she received only a Satisfactory
rating for 2017.

In item 10, she asserts that a transfer to

Queens East in 2018 was a dead end transfer from which no
promotion was possible as a practical matter.

Mooney has not

identified, however, any job opening in DSNY in 2018 for which
she was otherwise qualified, which would have constituted a
promotion for her, and for which she would have applied but for
her poor performance rating for the year 2017 or her current
posting to Queens East.

Without at least the identification of

14

such positions, it will be impossible for discovery to be taken
or for a jury to evaluate whether either item 9 or 10
constituted a material alteration to the terms of Mooney’s
employment.4
Similarly, items 2 and 6 do not constitute adverse
employment actions.

Criticisms of an employee’s performance at

the time the work is performed, or through less than favorable
ratings in certain categories of performance during an annual
review, without more, do not constitute adverse employment
actions.
Items 7 and 8 concern a supervisor’s use of discretionary
authority to grant or deny requested leave or to arrange for
coverage of shifts.

Lojan only partially granted Mooney’s

request for leave and then assigned her to provide coverage
during part of that time.

These are the inconveniences of

employment that do not rise to the level of adverse employment
actions.
Accordingly, the FAC had adequately pleaded only four
adverse employment actions.

They are items 1, 3, 4 and 5.

The defendants’ motion is also granted as to Mooney’s

The defendants argue that the plaintiff had to actually apply
for a new position to plead an adverse action premised on a
failure to promote. Because of the failure of the FAC to even
identify the position or positions that the plaintiff desired to
have, it is unnecessary to grapple further with the defendants’
argument.
4

15

hostile work environment claim, because the FAC does not allege
severe or pervasive conduct.

The FAC does not allege that DSNY

was so “permeated” with sexism as to alter the terms and
conditions of Mooney’s employment.
77.

See McGullam, 609 F.3d at

Generally speaking, the FAC alleges that Mooney had a

disappointing and tense working relationship with her supervisor
and over the course of approximately four years, faced petty
slights at work, and the loss of two weeks of vacation and the
opportunity to accrue one day of overtime pay.
Allegations 2, 3, 6, 7, 8, 9, and 10 fail to plead a causal
connection between the defendants’ actions and Mooney’s gender.
The FAC repeatedly pleads that Mooney is “unaware of any male
employees” who were treated in the same manner as her.

That is

not a factual allegation sufficient to plead a causal
relationship between Mooney’s gender and her employer’s conduct.
The question is whether any similarly situated male employee was
treated differently in comparison to Mooney.
795 F.3d at 312-13.

See Littlejohn,

Mooney is not required to present detailed

evidence about comparators at this stage, but the FAC must
contain a factual allegation that similarly situated comparators
exist.5

Because the FAC fails to provide plausible support for a

The allegation that a male employee, Joe Austin, was not
disciplined for arriving two hours late to a shift in March
2017, whereas Mooney was disciplined for tardiness, comes the
closest to alleging a comparator. But the FAC does not plead
5

16

“minimal inference of discriminatory motivation,” these
allegations are dismissed.

Littlejohn, 795 F.3d at 311.

Conversely, allegations 1, 4, and 5 state a claim of gender
discrimination.

The FAC alleges that, in February 2016, Lojan

replaced Mooney as Executive Officer of her DSNY department with
a male employee, Azzara, who had less experience than Mooney.
The loss of a job title may be an adverse employment action, and
the allegation that Mooney was replaced by a male employee with
less seniority is sufficient, for the purpose of defeating a
motion to dismiss, to state a claim of discrimination.

Because

this event occurred before June 2016, it is beyond the Title VII
statute of limitations; accordingly, Mooney may proceed as to
this allegation under Section 1983 against Lojan and Visconti.
Individuals may be liable under the NYSHRL if they are
personally involved, and Mooney alleges that “the directive to
remove [her] as an Executive Officer came directly from
Visconti.”

Accordingly, the NYSHRL claim may proceed against

the City, Lojan, and Visconti.
The FAC also alleges that, in November 2016, Lojan
reassigned Mooney from a locker room with running water to a
dilapidated locker room with no running water, and informed her
that this was the new women’s locker room.

This states a claim

facts to support the inference that Austin is similarly situated
to Mooney in all material respects.
17

of gender discrimination.

The room’s association with a single

gender and Lojan’s reference to Mooney’s gender when reassigning
her to the dilapidated locker room raises an inference that
Lojan was motivated by Mooney’s gender in doing so.

This claim

may proceed against the City under Title VII, against Lojan and
the City under the NYSHRL, and against Lojan under Section 1983.
The FAC also alleges that Mooney was denied the opportunity
to earn overtime pay on a day in February 2017, which pleads an
adverse action.6

It also alleges that during that same time

frame Lojan asked a male employee, Azzara, to work on his day
off and thereby earn overtime pay.7

The FAC also identifies

Azzara as a less senior male coworker.

The allegation of a

specific comparator is sufficient to raise an inference of
causation.

Accordingly, the defendants’ motion to dismiss is

denied as to the allegation that DSNY and Lojan discriminated
against Mooney when Lojan denied her overtime work on a day in
February 2017.

Mooney’s Title VII claim may proceed on this

theory against the City, her NYSHRL claim may proceed against

Whether the loss of the opportunity to earn overtime pay for
one day’s work was material must await summary judgment practice
or trial.
6

Mooney argues both that it was discriminatory to require her to
cover a night shift while on leave, and to not require her to
work one day while taking one of her days off. Despite the
tension in these positions, the claim regarding the loss of an
opportunity to earn one day’s overtime pay in February 2016 may
proceed.
7

18

the City and against Lojan, and her Section 1983 claim may
proceed against Lojan.
B. NYCHRL Discrimination Claims
NYCHRL claims must be analyzed separately from the NYSHRL
and from Title VII.

See Mihalik v. Credit Agricole Cheuvreux N.

Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013).

To state a claim

for gender discrimination, a plaintiff must allege that “she has
been treated less well than other employees because of her
gender.”

Id. at 110 (citation omitted).

“[T]he challenged

conduct need not even be tangible (like hiring or firing),” but
“[t]he plaintiff still [must allege] that the conduct is caused
by a discriminatory motive.”

Id. (citation omitted).

A hostile work environment is actionable under the NYCHRL
even if a plaintiff has not alleged that harassment is severe
and pervasive.

See Williams v. N.Y.C. Housing Auth., 872

N.Y.S.2d 27, 41 (1st Dep’t 2009).

The entire range of conduct

above the “petty slight or trivial inconvenience” is actionable
under the NYCHRL.

Id.

A plaintiff must, however, allege

“unequal treatment based on gender.”

Id. at 40.

As with the NYSHRL, an individual may be liable for
violating the NYCHRL if they individually participate in
discriminatory conduct.

See Feingold, 366 F.3d at 158.

The

statute of limitations for NYCHRL claims is three years, see
N.Y.C. Admin. Code § 8-502(d), and is tolled while EEOC

19

proceedings are pending.

See Negron, 2016 WL 7238959, at *1.

Accordingly, events that occurred after June 27, 2014 are timely
for Mooney’s NYCHRL claims.
Mooney bases her NYCHRL claim on the same conduct as her
Title VII, NYSHRL, and Section 1983 claims.

Although the NYCHRL

covers a greater range of employer action than Title VII and the
NYSHRL, all but three of Mooney’s allegations of gender
discrimination in violation of the NYCHRL must be dismissed for
failure to plead that the alleged discrimination was motivated
by Mooney’s gender.
The FAC fails to allege a causal connection between the way
she was treated at work and her gender.

As discussed above,

allegations 2, 3, 6, 7, 8, 9, and 10 of Mooney’s gender
discrimination claim are not supported by any specific
allegation that a similarly situated employee of a different
gender exists.

Nor has Mooney identified evidence from which a

discriminatory motive may be inferred.

Accordingly, Mooney’s

NYCHRL claim is dismissed insofar as it is based on allegations
2, 3, 6, 7, 8, 9, and 10.
For the same reasons described above, the FAC states a
claim of discrimination against the City and against Lojan
insofar as it is based on the denial of overtime work for a day
in February 2017, against the City and Lojan insofar as it is
based on Mooney’s assignment in November 2016 to a dilapidated

20

locker room, and against all three defendants insofar as it is
based on Mooney’s removal as an Executive Officer in February
2016.
The NYCHRL permits a wider variety of hostile work
environment claims to go forward than federal or state law.
Williams, 872 N.Y.S.2d at 40-41.

See

Nonetheless, Mooney has failed

to state a NYCHRL hostile work environment claim.

The claims

that survive are discrete acts of differential treatment based
on Mooney’s gender, and do not allege that the defendants
created an environment of harassment.

Mooney’s NYCHRL hostile

work environment claim is therefore dismissed.
II. Retaliation Claims
A. Federal and State Retaliation Claims
For a retaliation claim to survive a motion to dismiss,
“the plaintiff must plausibly allege that:

(1) defendants

discriminated -- or took an adverse employment action -- against
him, (2) because he has opposed any unlawful employment
practice.”

Duplan, 888 F.3d at 625 (citation omitted).

“In the

context of retaliation, ‘adverse employment action’ is broader
than it is in the context of discrimination.”
at 309.

Shultz, 867 F.3d

To be actionable, an “employer’s conduct must be

harmful to the point that it could well dissuade a reasonable
worker from making or supporting a charge of discrimination.”
Id. (citation omitted).

21

To adequately plead causation, the plaintiff must
plausibly allege that the retaliation was a but-for
cause of the employer’s adverse action. But-for
causation does not, however, require proof that
retaliation was the only cause of the employer’s
action, but only that the adverse action would not
have occurred in the absence of the retaliatory
motive.
Duplan, 888 F.3d at 625 (citation omitted).

As is true of

discrimination claims, the NYSHRL and Section 1983 each prohibit
retaliation to the same extent as Title VII.

See Vega, 801 F.3d

at 82 (Section 1983); McMenemy v. City of Rochester, 241 F.3d
279, 283 n.1 (2d Cir. 2001) (NYSHRL claims).
A causal connection may be pleaded
either (1) indirectly, by showing that the protected
activity was followed closely by discriminatory
treatment, or through other circumstantial evidence
such as disparate treatment of fellow employees who
engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the
plaintiff by the defendant.
Littlejohn, 795 F.3d at 319 (citation omitted).

When indirect

causation is alleged, there is no “bright line” rule that
“define[s] the outer limits beyond which a temporal relationship
is too attenuated to establish a causal relationship.”

Id.

The

Second Circuit has held that causation was sufficiently alleged
where retaliatory conduct occurred approximately three months
after protected activity.

See Vega, 801 F.3d at 92.

Mooney identifies only three protected activities in which
she engaged.

First, she alleges that she protested her 2016

22

evaluation that was provided to her on February 22, 2017, when
she wrote in the comments section of that evaluation that she
was “not being treated the same as her male coworkers.”

Second,

she alleges that, when she received an Official Letter of
Warning from Lojan in late August or early September 2017, she
wrote on the letter that “she was not being treated the same as
her male coworkers.”

Third, she filed an EEOC complaint in

April 2017 and filed this lawsuit in January 2018.

Each of

these acts could be construed as opposing gender discrimination.
Mooney alleges that the defendants took a number of actions
to retaliate against her.

To the extent Mooney relies on

conduct that occurred before the protected activity, the FAC
does not plausibly allege that the defendants’ actions were
caused by conduct that had not yet occurred.

For instance,

although Mooney claims that the 2016 evaluation itself was
retaliatory, she has not identified any preceding protected
activity.
The FAC alleges that Lojan retaliated against Mooney for
her February 2017 comment that she was being treated differently
than her male coworkers when he issued a warning letter for
failing to properly report an incident in August 2017.

This

six-month gap between protected activity and alleged retaliation
does not plausibly allege a causal connection.

The FAC does not

allege that the defendants took any retaliatory actions closer

23

in time to the February 2017 comment, and the FAC alleges no
other linkage.

Accordingly, the motion to dismiss is granted as

to this portion of Mooney’s retaliation claim.
In contrast, the FAC states a retaliation claim to the
extent it alleges that the defendants retaliated against Mooney
in September 2017.

Specifically, the FAC alleges (1) that Lojan

issued Mooney a second warning letter on September 12, 2017,
regarding tardiness that occurred weeks prior; (2) that Lojan
approved leave time for Mooney on September 18, 2017, and then
rescinded the leave approval and mandated that Mooney work night
relief shifts during the time she had requested off; and (3) on
April 9, 2018, Mooney was transferred to Queens East.8

The

motion to dismiss is denied as to these portions of Mooney’s
Title VII, NYSHRL, and Section 1983 retaliation claims.9

Whether

these actions were taken in retaliation for protected activity
or whether they are serious enough to dissuade a reasonable
worker from protesting discrimination must be determined through
summary judgment practice or at trial.

Mooney’s Title VII

retaliation claim may proceed against the City on all three

The FAC does not allege that the individual defendants were
involved in this decision, so the Queens East transfer may only
proceed against the City.
8

As with her Section 1983 discrimination claim against the City,
Mooney’s Section 1983 retaliation claim against the City does
not allege a policy or custom of retaliation and so fails to
state a claim.
9

24

acts, her NYSHRL retaliation claim may proceed against the City
on all three acts and against Lojan as to acts 1 and 2, and her
Section 1983 retaliation claim may proceed against Lojan on acts
1 and 2.

Her NYSHRL and Section 1983 retaliation claims against

Visconti are dismissed because there is no allegation that he
personally participated in any retaliatory acts.
B. NYCHRL Retaliation Claims
“[T]o prevail on a retaliation claim under the NYCHRL, the
plaintiff must show that she took an action opposing her
employer’s discrimination, and that, as a result, the employer
engaged in conduct that was reasonably likely to deter a person
from engaging in such action.”
(citation omitted).

Mihalik, 715 F.3d at 112

“[O]pposing any practice can include

situations where a person, before the retaliatory conduct
occurred, merely made clear her disapproval of the defendant’s
discrimination by communicating to him, in substance, that she
thought his treatment of the victim was wrong.”
omitted).

Id. (citation

As with Title VII retaliation claims, temporal

proximity may be used to support an inference of indirect
causation, and there is no bright line rule to determine when a
gap in time attenuates an inference of retaliatory motive.

See

Harrington v. City of New York, 70 N.Y.S.3d 177, 181 (1st Dep’t
2018).
As with her Title VII and NYSHRL retaliation claims, Mooney

25

alleges that she took two actions to oppose discriminatory
treatment:

writing a comment in February 2017 on her 2016

evaluation, and writing a comment in September 2017 on a warning
letter she received in late August or early September 2017.
alleges retaliatory acts consisting of:

She

(1) the warning letter

issued in August or September 2017, (2) the warning letter
issued in late September 2017, (3) the denial of time off and
imposition of night relief shifts described above, and (4) her
transfer to Queens East in April 2018.

For the reasons

discussed above, Mooney’s NYCHRL claim may proceed as to the
second warning letter against the City and Lojan, the night
relief shifts against the City and Lojan, and the Queens East
transfer against the City only.

The time between Mooney’s

February 2017 comment and the first warning letter is too
attenuated to raise a reasonable inference of retaliatory
motive, however, so that claim is dismissed.

Mooney’s NYCHRL

retaliation claims against Visconti are also dismissed because
there is no allegation that he participated in the retaliatory
conduct.

Conclusion
The defendants’ May 23, 2018 motion to dismiss the FAC for
failure to state a claim is granted in part.

Portions of

Mooney’s Title VII, NYSHRL, NYCHRL, and Section 1983 claims may

26

proceed as described above.

Dated:

New York, New York
September 12, 2018
____________________________
DENISE COTE
United States District Judge

27