Kaplan v. New York State Department of Labor et al

Filing 70

OPINION AND ORDER re: 61 MOTION to Dismiss filed by Roberta Reardon, Michael Paglialongo, New York State Department of Labor, Pico Ben-Amotz, 58 MOTION to Dismiss filed by Kathy Dix. For the foregoing reasons, De fendant Dix's motion to dismiss is GRANTED. The State Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff's state and local law claims against all Defendants are dismissed for lack of jurisdiction pursuant to the Eleventh Amendment. Plaintiff's Title VII claims against Commissioner Reardon were withdrawn and are dismissed. The Clerk of Court is directed to terminate Defendants Reardon, Dix, Paglialonga, and Ben-Amotz from this action. Plaintiff 's Title VII claims against DOL for hostile work environment and retaliation survive. The Clerk of Court is directed to terminate the motion at docket entries 58 and 61. The Court observes that many of Plaintiff's claims seem to hinge on the existence of a letter from DOL that Plaintiff argues differs from the August 16 Letter. If this letter is not produced in discovery, the Court is skeptical that Plaintiff's claim can survive further motion practice. DOL is hereby ORDERED to file its answer on or before July 29, 2019. The parties remaining in this litigation are hereby ORDERED to submit a joint letter and proposed case management plan on or before August 5, 2019. SO ORDERED. (Michael Paglialongo (in their individual capacities as aiders and abettors), Roberta Reardon (as Commissioner), Pico Ben-Amotz (in their individual capacities as aiders and abettors) and Kathy Dix (in their individual capacities as aiders and abettors) terminated.) (Signed by Judge Katherine Polk Failla on 7/19/2019) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FREDDY KAPLAN,
Plaintiff,
v.
NEW YORK STATE DEPARTMENT OF
LABOR, ROBERTA REARDON as
Commissioner, KATHY DIX, MICHAEL
PAGLIALONGA, and PICO BEN-AMOTZ
in their individual capacities as aiders
and abettors,

18 Civ. 3629 (KPF))
OPINION AND ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge 1:
This litigation arises from a workplace dispute at the New York State
Department of Labor (“DOL”). Plaintiff Freddy Kaplan claims that one of the
junior associates he supervised, J.R. Pichardo, made an anti-Semitic statement
directed at him, and harassed two female associates that Plaintiff supervised.
Plaintiff made a complaint about Pichardo’s actions to his superiors. But,
according to Plaintiff, after first receiving confirmation from his superiors that
the incidents happened, he was later accused of fabricating the incidents and
was subsequently terminated. Plaintiff contends that his termination was a
form of retaliation.
Plaintiff filed the instant action against DOL, DOL Commissioner Roberta
Reardon, DOL General Counsel Pico Ben-Amotz, and DOL Deputy Counsel

1

Anwar Akrouk, a rising second-year student at the University of California Berkeley
School of Law and an intern in my Chambers, provided substantial assistance in
researching and drafting this Opinion.

Michael Paglialonga (collectively, the “State Defendants”), as well as a former
DOL employee, Kathy Dix (together with the State Defendants, “Defendants”).
In it, Plaintiff alleges that DOL created a hostile work environment and engaged
in illegal retaliation when it terminated him and, further, that the individual
Defendants Dix, Paglialonga, and Ben-Amotz aided and abetted that retaliation.
Defendants have moved to dismiss all claims pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). For the reasons that follow, the Court grants
Defendants’ motion to dismiss all state and local law claims for lack of
jurisdiction, but denies the motion to dismiss Plaintiff’s federal claims.
BACKGROUND 2
A.

Factual Background
1.

The Parties

Plaintiff is a Jewish resident of Manhattan who, at the time of the events
discussed herein, was in his fifties. (Am. Compl. ¶¶ 7, 23). Plaintiff was an
employee at Defendant DOL, which is responsible for “enforcing state labor

2

The Court draws the facts in this section from the Amended Complaint (“Am. Compl.”
(Dkt. #68-1)). By letter dated June 26, 2019 (Dkt. #68), Plaintiff informed the Court
that the prior filing of the Amended Complaint (Dkt. #51) was missing its fourth page.
On June 27, 2019, the Court accepted the revised version of the Amended Complaint,
which was identical to the prior version beyond the inclusion of the missing page. (Dkt.
#69).
For convenience, the Court refers to the Memorandum of Law in Support of the State
Defendants’ Motion to Dismiss the Amended Complaint as “NY Br.” (Dkt. #63), the
Memorandum of Law in Support of Defendant Dix’s Motion to Dismiss the Amended
Complaint as “Dix Br.” (Dkt. #61), and Plaintiff’s Combined Memorandum of Law in
Opposition to the Motions to Dismiss as “Pl. Opp.” (Dkt. #64). Additionally, the Court
refers to the Reply Memorandum of Law in Support of the State Defendants’ Motion to
Dismiss the Amended Complaint as “NY Reply” (Dkt. #65), and the Reply Memorandum
of Law in Support of Defendant Dix’s Motion to Dismiss the Amended Complaint as “Dix
Reply” (Dkt. #67). The Court also refers to the Declaration of Michael Berg in Support
of the State Defendants’ Motion to Dismiss as the “Berg Decl.” (Dkt. #62).

2

laws, rules, and regulations.” (Id. at ¶¶ 8, 10). DOL is a state agency
headquartered in Albany, New York. (Id. at ¶ 9). Defendant Roberta Reardon
is the appointed Commissioner of DOL and is sued in her official capacity. (Id.
at ¶ 13). Defendants Kathy Dix, Michael Paglialonga, 3 and Pico Ben-Amotz are
all residents of New York State and were employees of DOL during the relevant
period. (Id. at ¶¶ 16-21). They are sued in their individual capacities. (Id.).
2.

Plaintiff’s Interactions with Pichardo

Plaintiff has been an attorney licensed to practice in the State of New
York since 1989. (Am. Compl. ¶ 24). He began his employment at DOL as a
Senior Attorney, where he “received positive performance evaluations and
incremental pay raises.” (Id. at ¶¶ 26, 27). In 2015, Plaintiff worked in DOL’s
Division of Labor Standards and Bureau of Public Works. (Id. at ¶ 28). There,
Plaintiff supervised three associate attorneys, one male and two females. (Id. at
¶ 29). The male associate, J.R. Pichardo, allegedly “frequently obstructed
Plaintiff’s directives and refused both his direction and training,” while also
disrupting the workplace environment. (Id. at ¶¶ 30, 31). Pichardo, as part of
these alleged disruptions, harassed the other two female attorneys “in a
misogynistic and derogatory manner.” (Id. at ¶ 32). Further, Plaintiff alleged
that in November 2015 Pichardo made a comment in Plaintiff’s presence about
“Jewing someone down.” (Id. at ¶ 33). Plaintiff objected to the anti-Semitic
statement and told Pichardo that this statement “was inappropriate in the

3

Defendant Michael Paglialonga is identified as “Michael Paglialongo” in the Amended
Complaint and in Plaintiff’s filings. The Court uses the correct spelling of his name in
this Opinion.

3

workplace.” (Id. at ¶ 34). At some later point, Plaintiff learned that Pichardo
referred to Plaintiff in the workplace more than once as a “Jew lawyer.” (Id. at
¶ 35).
3.

Plaintiff’s Reporting and the Subsequent Investigations

After learning of Pichardo’s conduct, Plaintiff telephoned his supervisor,
Defendant Dix, and “lodged complaints about Pichardo’s daily harassment of
his peers, his inappropriate behavior, and his incessant anti-Semitic
comments.” (Am. Compl. ¶ 36). Paglialonga, DOL’s deputy counsel, was
allegedly present for this telephone conversation. (Id. at ¶¶ 19, 37). Based on
the information discussed in the meeting, a complaint was filed on Plaintiff’s
behalf. (Id. at ¶ 38). Plaintiff states that he never received a copy of this
complaint or documentation regarding its creation. (Id. at ¶ 39).
In or around late January 2016, Plaintiff was interviewed by DOL’s
Human Resources division. (Am. Compl. ¶ 40). After the interview, Plaintiff
was provided with a letter in which DOL confirmed that Pichardo had made
comments that were anti-Semitic and had created a hostile work environment.
(Id.). However, Plaintiff alleges that the letter indicated that such behavior was
acceptable and that no action would be taken against Mr. Pichardo. (Id.).
4.

The Alleged Fabrication and Plaintiff’s Termination

In September 2016, Plaintiff was reassigned to the Bureau of Public
Works. (Am. Compl. ¶ 41). The following month, in October 2016, Plaintiff
travelled to Albany for work and met with Dix. (Id. at ¶ 43). In late April 2017,
Jim Rogers, DOL’s Deputy Commissioner, inquired of Plaintiff as to whether he
4

(Plaintiff) had invented the above-described claims against Pichardo. (Id. at
¶ 44). Plaintiff denied fabricating the allegations. (Id. at ¶ 45). In June 2017,
John Dorman met with Plaintiff, and claimed that Plaintiff had told Dix in their
October 2016 meeting that he had fabricated the allegations against Pichardo
in an effort to get him terminated from his job. (Id.). 4 Plaintiff denied this and
informed Dorman of the letter that he had received around January 2016,
which letter confirmed that Pichardo had made the anti-Semitic statements.
(Id. at ¶ 48).
Plaintiff states that he continued to perform his job duties satisfactorily.
(Am. Compl. ¶ 49). Despite this, on October 10, 2017, Paglialonga and BenAmotz notified Plaintiff that he should resign, or he would be terminated from
his position. (Id. at ¶ 50). On October 16, 2017, Plaintiff informed Paglialonga
and Ben-Amotz that he refused to resign, and he and was subsequently
terminated from his position at DOL. (Id. at ¶ 52). Plaintiff alleges that he
faced discrimination at his workplace on the basis of his religion and, further,
that he was terminated from his employment in retaliation for reporting
discrimination against both himself and his colleagues. (Id. at ¶ 54).
B.

Procedural History
Plaintiff filed his initial complaint in this action on April 24, 2018. (Dkt.

#1). On August 21, 2018, the State Defendants requested leave to file a motion
to dismiss. (Dkt. #38). On August 28, 2018, Defendant Dix requested leave to

4

The Amended Complaint does not indicate Dorman’s job title.

5

file a motion to dismiss. (Dkt. #41). On September 25, 2018, the Court held a
status conference and granted leave for Plaintiff to amend the complaint. (Dkt.
#49). On October 29, 2018, Plaintiff filed an amended complaint. (Dkt. #51).
On December 7, 2018, Dix and the State Defendants filed separate motions to
dismiss and supporting declarations. (Dkt. #58-63). On January 7, 2019,
Plaintiff filed his combined opposition to the motions to dismiss (Dkt. #64), and
on January 18, 2019, the State Defendants and Dix filed their respective reply
submissions (Dkt. #65-67).
Because Plaintiff’s Amended Complaint includes 15 claims for relief (Am.
Compl. ¶¶ 55-126), the Court briefly describes which claims are attributed to
which Defendants. Plaintiff brings claims under Title VII of the Civil Rights Act
of 1964 against his employer, DOL, for religious discrimination and retaliation.
(Id. at ¶¶ 56, 71, 83). 5 Plaintiff brings claims under the New York State Human
Rights Law (the “NYSHRL”) and the New York City Human Rights Law (the
“NYCHRL”) against DOL and Reardon for religious discrimination and
retaliation. (Id. at ¶¶ 61, 66, 76, 79, 88, 93). 6 Finally, Plaintiff brings claims
against Dix, Paglialonga, and Ben-Amotz for aiding and abetting in DOL’s

5

In his opposition brief, Plaintiff drops all Title VII claims against Commissioner Reardon
that were originally in the Amended Complaint. (Pl. Opp. 8).

6

In the Amended Complaint, Plaintiff’s claim for religious discrimination under the
NYCHRL is alleged against Defendants generally, unlike the remaining claims for which
specific defendants are identified. (See Am. Compl. ¶ 66). However, in an August 24,
2018 letter to the Court, Plaintiff specified that the religious discrimination claim was
not brought against Defendants Ben-Amotz and Paglialonga. (See Dkt. #40). Plaintiff
likewise makes no attempt to argue that that this claim is alleged against Dix. (See Dix
Reply 3 (arguing that Plaintiff has abandoned this claim against Dix)). The Court
understands that this claim is brought solely against Reardon and DOL, in the same
way as the religious discrimination claim brought pursuant to the NYSHRL.

6

discriminatory conduct, in violation of the NYSHRL and the NYCHRL. The
Court begins with the state and local law claims, as Defendants challenge the
Court’s jurisdiction over these claims. The Court then turns to Plaintiff’s Title
VII claims.
DISCUSSION
A.

The Eleventh Amendment Deprives the Court of Jurisdiction over
Plaintiff’s State and Local Law Claims
1.

Applicable Law
a.

Motions to Dismiss under Rule 12(b)(1)

The State Defendants principally argue that this Court lacks jurisdiction
to consider Plaintiff’s state and local law claims against them due to sovereign
immunity. They move under Rule 12(b)(1), which permits a party to move to
dismiss a complaint for “lack of subject-matter jurisdiction.” Fed. R. Civ. P.
12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the statutory or constitutional
power to adjudicate it.” Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211,
218 (S.D.N.Y. 2016) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000). In resolving a Rule 12(b)(1) motion, “the district court must take all
uncontroverted facts in the complaint ... as true, and draw all reasonable
inferences in favor of the party asserting jurisdiction.” Fountain v. Karim, 838
F.3d 129, 134 (2d Cir. 2016) (quoting Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). “A plaintiff asserting

7

subject matter jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Id. (quoting Makarova, 201 F.3d at 113).
b.

State Immunity Under the Eleventh Amendment

The Eleventh Amendment “render[s] states and their agencies immune
from suits brought by private parties in federal court.” In re Charter Oak
Assocs., 361 F.3d 760, 765 (2d Cir. 2004). Further, the “Eleventh Amendment
forecloses … the application of normal principles of ancillary and pendent
jurisdiction where claims are pressed against the State.” Cnty. of Oneida, N.Y.
v. Oneida Indian Nation, 470 U.S. 226, 251 (1985). More specifically, the
Supreme Court has admonished lower courts that “neither pendent jurisdiction
nor any other basis of jurisdiction may override the Eleventh Amendment. A
federal court must examine each claim in a case to see if the court’s
jurisdiction over that claim is barred by the Eleventh Amendment.” Pennhurst
State School and Hospital v. Halderman, 465 U.S. 89, 120 (1984). In addition
to this, agents of the state acting in their official capacity are also immune
under the Eleventh Amendment. Gan v. City of New York, 996 F.2d 522, 529
(2d Cir. 1993).
2.

Plaintiff’s Religious Discrimination and Retaliation Claims
under the NYSHRL and the NYCHRL Against DOL and Reardon
Are Barred by the Eleventh Amendment

Plaintiff brings six different religious discrimination and retaliation
claims under the NYSHRL and the NYCHRL against DOL and Commissioner
Reardon. These two parties, however, are immune from suit under the
Eleventh Amendment, and the claims against them are therefore dismissed.
8

The State Defendants’ arguments for dismissal of these counts are
straightforward: DOL is a state agency, and Commissioner Reardon is a state
official sued in her official capacity. (See NY Br. 8-11). A state and its agencies
are immune from suits brought by private parties in federal court, unless
Congress unequivocally expresses its intent to abrogate that immunity or a
state waives its immunity. See In re Charter Oak Assocs., 361 F.3d at 765.
The bar applies to officers of the state as well sued in their individual
capacities. See Gan, 996 F.2d at 529. “The State of New York has not
consented to suit in federal court through NYSHRL.” Jackson v. N.Y.S. Dep’t of
Labor, 709 F. Supp. 2d 218, 226 (S.D.N.Y. 2010). With particular respect to
claims under local law, such as the NYCHRL, the Second Circuit has made
plain that “[t]he City of New York does not have the power to abrogate the
immunity of the State, and … [has] found no evidence that the State has
consented to suit in federal court under the NYCHRL.” Feingold v. New York,
366 F.3d 138, 149 (2d Cir. 2004).
Plaintiff responds that the Court has power to hear these claims under
28 U.S.C. § 1367(a), which grants supplemental jurisdiction to federal courts
over state law claims. (See Pl. Opp. 6-8). Plaintiff reasons that because
Congress has abrogated sovereign immunity with respect to Title VII claims,
and thus that the Court has jurisdiction to hear Plaintiff’s federal claims, the
remainder of his claims should be heard at the same time in the interests of
judicial economy. (See id. at 7-8 (“In the absence of this Court exercising
supplemental or pendent jurisdiction over Mr. Kaplan’s NYSHRL and NYCHRL
9

claims …, he will be forced to file a separate, parallel proceeding against these
parties in state court. This second suit will invariably be duplicative … on the
same issues of fact.”)). While Plaintiff’s argument may well be true, it overlooks
the fact that the Supreme Court has decreed this precise result. In County of
Oneida, the Supreme Court held: “The Eleventh Amendment forecloses ... the
application of normal principles of ancillary and pendent jurisdiction where
claims are pressed against the State.” 470 U.S. at 251. It subsequently
confirmed that “§ 1367(a)’s grant of jurisdiction does not extend to claims
against nonconsenting state defendants.” Raygor v. Regents of Univ. of
Minnesota, 534 U.S. 533, 541-42, (2002). And on the specific issue of judicial
efficiency, the Court concluded that “considerations of policy cannot override
the constitutional limitation on the authority of the federal judiciary to
adjudicate suits against a State.” Pennhurst, 465 U.S. at 122-23.
Plaintiff does not address these cases, but rather rests his arguments on
case law that speaks generally to the broad goals of supplemental jurisdiction.
(See Pl. Opp. 7-8). As the State Defendants rightly note (see NY Reply 3-4),
there is an unbroken line of cases in which courts had dismissed NYSHRL and
NYCHRL claims brought against the state and its officers as barred by the
Eleventh Amendment, even where federal claims continued. See, e.g., Jackson,
709 F. Supp. 2d at 226. Plaintiff offers no basis for a different outcome. As
such, Plaintiff’s NYSHRL and NYCHRL claims against DOL and Commissioner
Reardon for discrimination and retaliation must be dismissed.

10

3.

Plaintiff’s Claims for Aiding and Abetting Violations of the
NYSHRL and the NYCHRL Must Be Dismissed in the Absence of
an Actionable Primary Violation

As noted, Plaintiff pleads individual aiding and abetting claims under the
NYSHRL and the NYCHRL against Defendants Dix, Paglialonga, and BenAmotz. Generally speaking, Plaintiff alleges that each of these Defendants
knew of the discrimination that Plaintiff faced and did nothing to address the
discrimination or prevent the allegedly retaliatory firing. (See Am. Compl.
¶¶ 99, 104, 109, 114, 119, 124). Defendants argue that the dismissal of the
primary state and local discrimination and retaliation claims necessitates
dismissal of the correlative aiding and abetting claims. (See NY Br. 11-13; Dix
Br. 8-9). The Court agrees that the dismissal of the primary claims requires
dismissal of the aiding and abetting claims against Dix, Paglialongo, and BenAmotz.
Individual government employees may be held liable under the NYSHRL
and the NYCHRL if they aid and abet illegal discriminatory practices. See N.Y.
Exec. Law § 296(6); N.Y.C. Admin. Code § 8-107(6). However, the principle is
firmly established in this District that liability under these statutes “must first
be established as to the employer/principal before accessorial liability can be
found as to an alleged aider and abettor.” DeWitt v. Lieberman, 48 F. Supp. 2d
280, 293 (S.D.N.Y. 1999).
In Soloviev v. Goldstein, a discrimination case against the City University
of New York (“CUNY”) and several of its individual employees, a sister court in
this Circuit held that “because the claims [against CUNY] [we]re barred by the
11

Eleventh Amendment, Plaintiffs also [could not] state a claim against the
Individual CUNY Defendants in their individual capacities as aiders and
abettors.” 104 F. Supp. 3d 232, 253 (E.D.N.Y. 2015) (collecting cases for this
principle, including, e.g., Ren Yuan Deng v. N.Y. State Office of Mental Health,
No. 13 Civ. 6801 (ALC) (RLE), 2015 WL 221046, at *5 (S.D.N.Y. Jan. 15, 2015)
(noting principal liability is a predicate for aider and abettor liability under both
the NYSHRL and the NYCHRL)); accord Ross v. State of New York, No. 15 Civ.
3286 (JPO), 2016 WL 626561, at *3 (S.D.N.Y. Feb. 16, 2016); Ardigo v. J.
Christopher Capital, LLC, No. 12 Civ. 3627 (JMF), 2013 WL 1195117, at *6
(S.D.N.Y. Mar. 25, 2013). The State Defendants argue that this line of cases
requires dismissal of all the aiding and abetting claims. (See NY Br. 13).
Plaintiff’s response is a largely irrelevant discussion of the merits of each
Defendant’s conduct. (See Pl. Opp. 18-20). As the State Defendants observe in
reply (see NY Reply 5-6), Plaintiff’s failure to address these arguments
effectively concedes that the claims cannot survive. That is, Courts will
normally deem a claim abandoned if a plaintiff fails to address or oppose a
defendant’s arguments requesting dismissal of that claim. See, e.g., Adams v.
N.Y.S. Educ. Dep’t, 752 F. Supp. 2d 420, 452 n.32 (S.D.N.Y. 2010) (collecting
cases). Even were the Court to consider Plaintiff’s brief a response to
Defendant’s argument, the Court can no discern no basis to distinguish this
case from those listed above. In sum, absent an actionable primary violation
under the NYSHRL or the NYCHRL, the aiding and abetting claims against Dix,

12

Paglialonga and Ben-Amotz cannot survive. The Court therefore dismisses all
claims for aiding and abetting. 7
B.

Plaintiff’s Title VII Claims Survive
Having dismissed the state and local law claims against Defendants as

barred by the Eleventh Amendment, the Court consider the remaining claims
under Title VII. Plaintiff has dropped all Title VII claims against Commissioner
Reardon (see Pl. Opp. 8), so the sole remaining claims are those brought
against DOL for a hostile work environment and retaliation. The State
Defendants seek dismissal of these claims for failure to state a claim under
Fed. R. Civ. P. 12((b)(6).
1.

Motions to Dismiss Generally
a.

Rule 12(b)(6)

When considering a motion to dismiss under Rule 12(b)(6), a court
should “draw all reasonable inferences in [the plaintiff’s] favor, assume all
well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting Selevan
v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). Thus, “[t]o survive a

7

This Court has previously recognized an open issue concerning whether “an individual
can be held liable for aiding and abetting his own conduct giving rise to a claim under”
the NYSHRL. See Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 522 (S.D.N.Y. 2015)
(collecting cases). The law on this issue remains unsettled. See Chau v. Donovan, 357
F. Supp. 3d 276, 286 (S.D.N.Y. 2019) (pointing to “differing conclusions in this district
over the extent to which an individual can be liable for aiding and abetting his own
conduct”). However, Plaintiff does not allege this theory of liability in the Amended
Complaint, and it is therefore not addressed further in this Opinion.

13

motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
“While Twombly does not require heightened fact pleading of specifics, it
does require enough facts to ‘nudge [a plaintiff’s] claims across the line from
conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007) (per curiam) (quoting Twombly, 550 U.S. at 570). “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 (quoting Twombly, 550 U.S. at 557). Moreover,
“the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
b.

The Court’s Consideration of Documents External to the
Complaint

“In considering a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010). “Even where a document is not incorporated
by reference, the court may nevertheless consider it where the complaint ‘relies
heavily upon its terms and effect,’ which renders the document ‘integral’ to the
14

complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir. 1995) (per curiam)). “To be integral to a complaint, the plaintiff must have
[i] ‘actual notice’ of the extraneous information and [ii] ‘relied upon the
documents in framing the complaint.’” DeLuca v. AccessIT Grp., Inc., 695 F.
Supp. 2d 54, 60 (S.D.N.Y. 2010) (quoting Chambers, 282 F.3d at 153).
“Merely mentioning a document in the complaint will not satisfy this
standard,” and the exception often applies where “the incorporated material is
a contract or other legal document containing obligations upon which the
plaintiff’s complaint stands or falls, but which for some reason — usually
because the document, read in its entirety, would undermine the legitimacy of
the plaintiff’s claim — was not attached to the complaint.” Goel v. Bunge, Ltd.,
820 F.3d 554, 559 (2d Cir. 2016) (quoting Global Network Commc’ns, Inc. v.
City of New York, 458 F.3d 150, 157 (2d Cir. 2006)). Moreover, “even if a
document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity[, relevance,] or accuracy of the
document.” DiFolco, 622 F.3d at 111 (quoting Faulkner v. Beer, 463 F.3d 130,
134 (2d Cir. 2006)).
The State Defendants submitted a letter along with their brief. (See Berg
Decl., Ex. A (the “August 16 Letter”)). The letter, which is addressed to Plaintiff
from DOL’s Division of Equal Opportunity, states that DOL investigated
Plaintiff’s complaint regarding Pichardo and found insufficient evidence to
conclude discrimination occurred, although a violation of DOL policies may
15

have occurred. (See id.). The State Defendants argue that this letter is the
letter to which Plaintiff referred in his Amended Complaint (see Am. Compl.
¶ 40), and, therefore, the Court should consider it as integral to the complaint.
(See NY Br. 19 n.6). The Court cannot agree.
On the record before it, the Court does not have a sufficient basis to
conclude that the August 16 Letter is the document referenced by Plaintiff in
the Amended Complaint. The relevant allegation is the following: “[Plaintiff]
received a letter confirming that Mr. Pichardo had made comments that were
both anti-Semitic and created a hostile work environment, but, indicating that
said behavior is acceptable at the DOL, no corrective action would be taken.”
(Am. Compl. ¶ 40). In opposition, Plaintiff states that there is no basis to
conclude the August 16 Letter is the letter he referenced. (See Pl. Opp. 12-13).
The Court agrees that the language is different, and the Amended Complaint
recites no date that would allow the Court to confirm that this is the referenced
letter.
While it seems unlikely to the Court that a different letter with a different
message exists, the standard for consideration at the motion to dismiss stage is
a strict one. “[E]ven if a document is ‘integral’ to the complaint, it must be
clear on the record that no dispute exists regarding the authenticity or
accuracy of the document. It must also be clear that there exist no material
disputed issues of fact regarding the relevance of the document.” Faulkner v.
Beer, 463 F.3d 130, 134 (2d Cir. 2006) (internal citations omitted). Here,
Plaintiff disputes that the letter he referenced is the August 16 Letter. At the
16

motion to dismiss stage, the Court cannot make a finding on disputed facts
that these letters are the same. The Court thus declines to consider the
August 16 letter at this time.
2.

Plaintiff Has Plausibly Alleged a Hostile Work Environment
Claim Under Title VII
a.

Applicable Law

To allege that a defendant created a hostile work environment, a plaintiff
must plausibly allege harassment that was sufficiently severe and pervasive to
alter the conditions of employment. See Feingold v. New York, 366 F.3d 138,
149-50 (2d Cir. 2004) (citing Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.
2002)). Episodic incidents are insufficient to demonstrate a hostile work
environment under federal law. See id.; Terry v. Ashcroft, 336 F.3d 128, 148
(2d Cir. 2003). Instead, “[t]he incidents complained of … must be sufficiently
continuous and concerted in order to be deemed pervasive.” Littlejohn v. City of
New York, 795 F.3d 297, 320-21 (2d Cir. 2015) (citation omitted); see generally
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir.
2014).
In evaluating “whether a plaintiff suffered a hostile work environment,” a
court “consider[s] the totality of the circumstances, including the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Littlejohn, 795 F.3d at 321
(citation omitted). “This standard has both objective and subjective

17

components: the conduct complained of must be severe or pervasive enough
that a reasonable person would find it hostile or abusive, and the victim must
subjectively perceive the work environment to be abusive.” Id. The plaintiff
must also allege “that there is a specific basis for imputing the conduct
creating the hostile work environment to the employer.” Summa v. Hofstra
Univ., 708 F.3d 115, 124 (2d Cir. 2013) (internal citations omitted)
b.

Plaintiff Has Adequately Alleged Pichardo’s Offensive
Conduct and DOL’s Failure to Remediate

Plaintiff argues that Pichardo’s anti-Semitic statements, “misogynistic
rants,” and refusal to follow Plaintiff’s instructions and orders, taken together,
meet the standard set by the courts for a hostile work environment under Title
VII. (See Pl. Opp. 10). While Kaplan “personally overheard” Pichardo talk
about “Jewing someone down,” he also became aware of “incessant antiSemitic comments [made] out[side] of his presence” by Pichardo. (Id. at 12
(internal citations and quotations omitted)). Furthermore, Plaintiff states that
he had received a letter from DOL confirming that Pichardo had engaged in
anti-Semitic behavior, but nonetheless declining to discipline him. (Id.).
Plaintiff states that these facts demonstrate that he faced conduct severe or
pervasive enough that a reasonable person would find it hostile or abusive, see
Littlejohn, 795 F.3d at 321, and there is a basis for imputing this conduct to
DOL, see Summa, 708 F.3d at 124.
The State Defendants respond that Plaintiff “fails to allege the kind of
severe and pervasive harassment necessary to establish a hostile work

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environment.” (NY Br. 17-18). In this regard, they rest much of their
argument on the allegation that Plaintiff only heard one anti-Semitic comment.
(Id. at 18). However, Plaintiff specifically alleges that Pichardo made numerous
other anti-Semitic comments to other employees outside Plaintiff’s presence.
(See Am. Compl. ¶¶ 35-36). 8 In other words, while Plaintiff only alleges one
comment that he heard, he alleges many other, equally egregious comments
made outside of his presence of which he became aware. (Id.). The Court finds
that Plaintiff has adequately alleged that Pichardo “engage[d] in a steady
barrage of opprobrious racial comments.” Schwapp v. Town of Avon, 118 F.3d
106, 110 (2d Cir. 1997) (internal quotation marks and citations omitted).
Accepting the allegations against Pichardo as true, the Court concludes that
they could state a claim for a hostile work environment.
Alternatively, the State Defendants argue that the alleged comments by
Pichardo cannot be imputed to DOL. (NY Br. 18-19). DOL argues that it
listened to Plaintiff’s complaint, investigated, and attempted to act to remedy
the situation. (Id.). As discussed above, the Court declines to consider the
August 16 Letter. Accepting the well-pleaded allegations of the Amended
Complaint, Plaintiff reported the misconduct to his superiors, who declined to

8

The State Defendants also argue that Plaintiff’s counsel’s statements in court contradict
the pleadings: “[Plaintiff’s] Counsel stated: ‘He heard one offensive comment, which, as
a 50-year-old lawyer who lives in New York, we can all manage to somehow survive, and
I get that.’ Although the Amended Complaint refers to Mr. Pichardo’s ‘incessant antiSemitic comments,’, that conclusory label is entitled to no weight, as it is belied by the
pleading’s factual allegations and counsel’s concession.” (NY Br. 17). The Court does
not consider the statements contradictory. Plaintiff alleged that he directly overheard
one offensive comment. He alleged that he learned of the other, similarly offensive
comments later.

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remedy the situation. (Am. Compl. ¶ 40). To impute liability to an employer,
Plaintiff must allege that “(i) someone had actual or constructive knowledge of
the harassment, (ii) the knowledge of this individual can be imputed to the
employer, and (iii) the employer’s response, in light of that knowledge, was
unreasonable.” Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009). The State
Defendants do not dispute the first or second of these elements, and accepting
Plaintiff’s representations as true, the third element is satisfied. Plaintiff has
stated that DOL informed him that Pichardo’s anti-Semitic conduct was not a
basis for corrective action. (Am. Compl. ¶ 40). The Court concludes that such
a response, assuming the truth of Pichardo’s continuous anti-Semitic
comments, would be unreasonable. Accordingly, Plaintiff has adequately
stated that a hostile work environment existed and can be imputed to
Defendant. Plaintiff’s hostile work environment claim survives.
3.

Plaintiff Has Plausibly Alleged an Unlawful Retaliation Claim
Under Title VII
a.

Applicable Law

To state a claim for retaliation, Plaintiff must plausibly allege four
factors: (i) the employee engaged in protected activity by opposing a practice
made unlawful by Title VII; (ii) the employer was aware of that activity; (iii) the
employee suffered adverse employment actions; and (iv) there was a causal
connection between the protected activity and the adverse action. Galdieri-

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Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).
Indeed,
[a]t the pleading stage, “the allegations in the complaint
need only give plausible support to the reduced prima
facie requirements that arise under McDonnell Douglas
in the initial phase of a Title VII litigation.” [Littlejohn,
795 F.3d] at 316. “[F]or a retaliation claim to survive a
motion for judgment on the pleadings or 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.” Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d
Cir. 2015) (internal quotation marks omitted).
Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018).
There is no “bright line to define the outer limits beyond which a
temporal relationship is too attenuated to establish a causal relationship”
between undertaking a protected act and a subsequent retaliation. GormanBakos v. Cornell Coop. Extension, 252 F.3d 545 (2d Cir. 2001). However, at
this stage of the proceedings, Plaintiff does not need to plead every part of a
prima facie case of retaliation, just enough facts for the claims to be plausible.
See Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 71-72 (2d Cir. 2006); accord
Vega, 801 F.3d at 90.
b.

Plaintiff’s Has Adequately Alleged Retaliation

Plaintiff’s claim for retaliation is broader than his hostile work
environment claim, as it encompasses not only his complaints regarding
Pichardo’s anti-Semitic statements, but also his complaints regarding
Pichardo’s treatment of his female co-workers. (See Pl. Opp. 16). Plaintiff
argues that he has pleaded that: (i) he opposed two unlawful practices (Am.
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Compl. ¶¶ 36-37); (ii) his employer was made aware in his meeting with Dix
and Paglialonga (id. at ¶ 37); (iii) he was terminated thereafter (id. at ¶ 52); and
(iv) he was terminated in relation to these complaints (id. at ¶ 53).
The State Defendants primarily contest the fourth element, claiming
there is no plausible connection between Plaintiff’s reporting and his
termination. (NY Br. 21). They argue that too much time (approximately 21
months) passed between the two events, and thus that there is insufficient
temporal proximity to establish a plausible connection. (Id.). To this end, the
State Defendants cite several recent Second Circuit and Southern District
decisions for this principle:
As the Second Circuit recently reaffirmed: “While we
have not ‘drawn a bright line to define the outer limits’
of temporal proximity in the Title VII retaliation context,
a ten-month period between the adverse action and the
protected activity does not support an inference of
causation.” N’Dama Miankanze Bamba v. Fenton, No.
17-2870, 2018 WL 6331611, at *2 (2d Cir. Dec. 4, 2018)
(quoting Hollander v. Am. Cyanamid Co., 895 F.2d 80,
85 (2d Cir. 1990) (declining to find causal nexus
between alleged retaliatory letter and protected activity
where letter was written three months later)). See also
Chang v. Safe Horizons, 254 F. App’x 838, 839 (2d Cir.
2007) (holding that lapse of “almost one year” between’
employee’s complaint of discrimination and her
termination “undermin[ed] any causal nexus based on
temporal proximity”); Woodworth v. Shinseki, 447 Fed.
App’x 255, 258 (2d Cir. 2011) (fifteen-month gap); Yarde
v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 562
(S.D.N.Y. 2005)(six-month gap).
(NY Br. 22). Furthermore, the State Defendants emphasize the length of time
between Plaintiff’s complaint and his subsequent dismissal because it
highlights another potentially valid, non-retaliatory reason for Plaintiff’s
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dismissal: DOL’s belief that Plaintiff fabricated the original claims. (See NY
Reply 10).
The Court agrees that Plaintiff has not plausibly alleged a causal
connection between his complaint and termination based on temporal
proximity alone. Plaintiff’s argument, that “the lengthy
procedural/investigatory measures undertaken by Defendants — which were
based upon his complaints concerning Mr. Pichardo and appear to have
extended from, the latest, April 2017 through to Mr. Kaplan’s termination in
October 2017 — [cannot] be held against him” (Pl. Opp. 17), seems to
misconceive the standard. Plaintiff does not need to show that the delay was
not his fault; rather, Plaintiff must allege that his termination was connected to
his complaint. The lengthy interval between these events forecloses such an
inference. The Court agrees that Plaintiff has failed to allege that the temporal
proximity between his complaint and termination indicates a retaliatory motive.
However, the Court finds that Plaintiff has plausibly alleged a retaliatory
motive in a different manner. “A plaintiff may assert causal connection
through allegations of retaliatory animus, or else by circumstantial evidence,
such as close temporal proximity between the protected activity and the
retaliatory action.” Perry v. State of N.Y. Dep’t of Labor, No. 08 Civ. 4610 (PKC),
2009 WL 2575713, at *6 (S.D.N.Y. Aug. 20, 2009), aff’d sub nom. Perry v. N.Y.
Dep’t of Labor, 398 F. App’x 628 (2d Cir. 2010) (summary order). Here, Plaintiff
has alleged that he made a complaint based on discrimination (Am. Compl.
¶¶ 36-37); that DOL accepted that complaint as true (id. at ¶ 40); and that DOL
23

then accused him of fabricating a complaint that it had already accepted as
true in order to justify its termination of his employment (id. at ¶¶ 44-52). The
Court must accept these allegations as true at this stage of the litigation.
Accordingly, an assertion of close temporal proximity alone is unnecessary,
because here DOL is alleged to have reversed its position regarding a complaint
it had already accepted as true. This offers a stronger circumstantial case for a
pretextual retaliatory firing than mere temporal proximity. If Plaintiff’s version
of events were accurate, DOL, with full awareness of the truth of his
complaints, fired him on the pretext that he fabricated the complaints. The
Court concludes that these allegations plausibly state a retaliatory motive for
Plaintiff’s termination. Plaintiff’s retaliation claim therefore survives.
CONCLUSION
For the foregoing reasons, Defendant Dix’s motion to dismiss is
GRANTED. The State Defendants’ motion to dismiss is GRANTED IN PART and
DENIED IN PART. Plaintiff’s state and local law claims against all Defendants
are dismissed for lack of jurisdiction pursuant to the Eleventh Amendment.
Plaintiff’s Title VII claims against Commissioner Reardon were withdrawn and
are dismissed. The Clerk of Court is directed to terminate Defendants
Reardon, Dix, Paglialonga, and Ben-Amotz from this action. Plaintiff’s Title VII
claims against DOL for hostile work environment and retaliation survive. The
Clerk of Court is directed to terminate the motion at docket entries 58 and 61.
The Court observes that many of Plaintiff’s claims seem to hinge on the
existence of a letter from DOL that Plaintiff argues differs from the August 16
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Letter. If this letter is not produced in discovery, the Court is skeptical that
Plaintiff’s claim can survive further motion practice.
DOL is hereby ORDERED to file its answer on or before July 29, 2019.
The parties remaining in this litigation are hereby ORDERED to submit a joint
letter and proposed case management plan on or before August 5, 2019.
SO ORDERED.
Dated:

July 19, 2019
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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