Cowan v. The City of Mt. Vernon et al
OPINION & ORDER re: 41 MOTION to Dismiss , filed by City of Mt. Vernon Police Department, Nichelle Johnson, The City of Mt. Vernon, Martin Bailey. The Court grants Defendants' Motion To Dismiss in its entirety. As Plaintiff h as already had two opportunities to amend her pleadings, the Court dismisses her claims with prejudice. See Anthony v. Brockway, No. 15-CV-451, 2015 WL 5773402, at *3(N.D.N.Y. Sept. 30, 2015) (" [The] [p]laintiff has already been given one opp ortunity to amend [her] complaint..., and there is nothing in his second amended complaint suggesting that [she] could do better given another opportunity."); Al-Qadaffi v. Servs. for the Underserved (SUS), No.13-CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015) (denying leave to amend where " [the plaintiff] has already had one chance to amend his [c]omplaint, and there is still no indication that a valid claim might be stated if given a second chance"), aff'd, 63 2 F. App'x 31 (2d Cir. 2016); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an amended complaint with prejudice where the plaintiff failed to cure the deficiencies identified in his initial complaint despite "being given ample opportunity to do so"). The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 41 ), and close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/28/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION & ORDER
THE CITY OF MOUNT VERNON, MARTIN
BAILEY, NICHELLE JOHNSON,
Benjamin L. F. Leavitt, Esq.
Leavitt Legal PLLC
White Plains, NY
Counsel for Plaintiff
Paul J. Sweeney, Esq.
Coughlin & Gerhart, LLP
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Vanessa Cowan (“Plaintiff”) brings this Action against Defendants the City of
Mount Vernon (the “City”), Martin Bailey (“Bailey”), and Nichelle Johnson (“Johnson,” and
collectively, “Defendants”), alleging sexual discrimination, harassment and retaliation in
violation of the Equal Protection Clause of the Fourteenth Amendment, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and New York State law. Before the
Court is Defendants’ Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
(the “Motion”). (Dkt. No. 41.) For the reasons to follow, Defendants’ Motion is granted.
A. Factual Background
The following facts are drawn from Plaintiff’s Second Amended Complaint (“SAC”) and
are taken as true for the purpose of resolving the instant Motion.
Plaintiff was sworn into the Mount Vernon Police Department (the “Police Department”)
on January 6, 2013 and began her training at the Police Academy on or around January 8, 2013.
(Second Am. Compl. (“SAC”) ¶¶ 27–28 (Dkt. No. 36).) Following her graduation from the
Police Academy, Plaintiff joined the Police Department as a probationary employee. (Id. ¶ 28.)
At the time Plaintiff applied to the Police Department, Plaintiff had a Notice of Claim pending
with the City in connection with “sexual harassment she had endured as an employee of the
Mount Vernon Youth Bureau,” but had not filed any action against the City. (Id. ¶ 29.)
“From very early in [Plaintiff’s] employment as a police officer, [Defendant] Bailey[, an
employee of the Police Department,] engaged in sexual harassment of Plaintiff” through conduct
that included “making comments about Plaintiff’s body, making requests for sex[,] and even
going so far as demanding money from Plaintiff if she was unwilling to sleep with him.” (Id.
¶¶ 20, 30.) In response, Plaintiff filled out “MV-5” forms and filed several harassment
complaints about Bailey with the Police Department. (Id. ¶ 31.) Bailey told Plaintiff that “he
had been instructed by ‘friends’ in the Law Department for the City” to ensure “that Plaintiff was
fired from the Police Department.” (Id. ¶ 32.) Bailey made clear to Plaintiff that the “friend” in
the Law Department was Defendant Johnson, then-corporation counsel for the City. (Id.)
“[O]n numerous occasions,” Bailey threated Plaintiff that he would “spread rumors”
about her in connection with “that stuff that happened across the street,” a reference to the Notice
of Claim and subsequent lawsuit Plaintiff filed against the City. (Id. ¶ 33 (internal quotation
marks omitted).) Bailey also told Plaintiff that “he was going to make sure that superior officers
in the Police Department viewed her as a ‘problem’ employee,” and other officers in the Police
Department told Plaintiff that “everyone in the [D]epartment thinks you’re a problem.” (Id. ¶ 34
(internal quotation marks omitted).) Plaintiff also overheard Bailey tell another detective that
Plaintiff “was dangerous,” “needed to be stopped,” and that Bailey needed “help to get rid of
[Plaintiff].” (Id. ¶ 35 (internal quotation marks omitted).) In the presence of other Police
Department officers, Bailey told Plaintiff, “Bitch, your days are numbered.” (Id. ¶ 36 (internal
quotation marks omitted).)
Plaintiff followed all Police Department protocol in reporting Bailey’s “continued”
harassment. (Id. ¶ 37.) After filing “numerous written complaints concerning Bailey, Plaintiff
was transferred to another unit in the Police Department,” which Plaintiff describes as a “substation” where she was “ostracized,” “segregated,” and “cut off from other officers.” (Id. ¶¶ 38–
39.) Bailey’s harassment declined following the transfer. (Id. ¶ 39.)
Plaintiff asserts that the segregation was in part a response to Plaintiff’s sexual
harassment complaints, but was also a reaction to Plaintiff’s pending lawsuit against the City.
(Id. ¶ 40.) Specifically, Plaintiff alleges that the transfer “was explicitly designed to have a
negative impact o[n] her job performance” because Plaintiff had been told by multiple
administrators in the Police Department that “she could not sue the City and remain a [p]olice
[o]fficer.” (Id. (internal quotation marks omitted).) Despite the transfer, Plaintiff never received
negative comments, reviews, or reports about her job performance at the Police Department. (Id.
In early June 2014, Plaintiff was notified that she was being placed on “paid
administrative leave,” a status that Plaintiff asserts did not exist “under the Police Department
Rules and Regulations” or the “State o[r] City Civil Services Codes.” (Id. ¶ 42 (internal
quotation marks omitted).) Plaintiff alleges that such status served as an “effective
terminat[ion] without a hearing and without all of the processes due her under any and all
applicable law[s].” (Id. ¶ 43.) “Eventually,” Plaintiff was notified that she would not be retained
by the Police Department following her probationary period. (Id. ¶ 44.) Plaintiff requested, but
was denied, a formal meeting with the Commissioner of the Police Department, a right she was
allegedly afforded under Mount Vernon City Law, the City Charter, and applicable state and
federal law. (Id. ¶¶ 44–45.)
Plaintiff seeks compensatory and punitive damages in the amount of three million dollars,
as well as attorney’s fees. (Id. at 9.)
B. Procedural History
Plaintiff filed the Complaint in this Action on November 7, 2014, (Dkt. No. 1), and filed
an Amended Complaint on March 26, 2015, (Dkt. No. 8). Pursuant to a scheduling order issued
May 29, 2015, (Dkt. No. 11), Defendants filed a motion to dismiss and accompanying papers on
August 6, 2015, (Dkt. Nos. 17–19). On November 2, 2015, Plaintiff filed a memorandum in
opposition to Defendants’ motion to dismiss, and a cross-Motion To Amend, seeking leave to
file a SAC. (Dkt. Nos. 21–22.) Defendants did not file any papers in further support of their
motion to dismiss and did not oppose Plaintiff’s Motion To Amend. On March 17, 2016,
Plaintiff filed a renewed Motion To Amend. (Dkt. No. 32.) The Court granted the Motion To
Amend and denied Defendants’ motion to dismiss without prejudice. (Dkt. No. 35.)
Plaintiff filed the SAC on March 25, 2016. (Dkt. No. 36.) Defendants filed the instant
Motion To Dismiss and accompanying papers on April 26, 2016, (Dkt. Nos. 41–43), and
Plaintiff filed her opposition on May 25, 2016, (Dkt. No. 44). Defendants filed a reply on June
8, 2016. (Dkt. No. 45.)
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, the complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
Plaintiff brings hostile work environment claims against all Defendants (Counts I and II)
and a claim for retaliation against the City (Count III). Plaintiff asserts her hostile work
environment claims against the City under both Title VII and § 1983, and against Bailey and
Johnson under § 1983.1
As Defendants identify, certain portions of Plaintiff’s SAC address allegations of
conspiracy, procedural due process, and intentional infliction of emotional distress. (See SAC
¶ 15 (“[T]he above acts constituted . . . [a] violation of Plaintiff’s procedural due process rights
as well as conspiracy for the same”); id. ¶ 16 (“This case arises under 42 U.S.C. § . . . 1985”); id.
¶ 22 (alleging the sexual harassment was “the product of an unlawful conspiracy as well as a
conspiracy to wrongfully terminate Plaintiff”); id. ¶ 23 (“[Defendants] . . . engaged in the
wrongful termination of Plaintiff, a conspiracy to deprive Plaintiff of her First [A]mendment
[r]ights, intentional infliction of emotional distress . . . .”).) These allegations appear to be relics
of prior complaints in this Action, as nowhere does Plaintiff plead facts in connection with these
1. Hostile Work Environment
“Title VII prohibits an employer from discriminating in ‘compensation, terms,
conditions, or privileges of employment, because of [an] individual’s . . . sex . . . .’” Littlejohn v.
City of New York, 795 F.3d 297, 320 (2d Cir. 2015) (alteration in original) (quoting 42 U.S.C.
§ 2000e–2(a)(1)). The phrase “terms, conditions, or privileges of employment,” 42 U.S.C.
§ 2000e–2(a)(1), “evinces a congressional intent to strike at the entire spectrum of disparate
treatment . . . , which includes requiring people to work in a discriminatorily hostile or abusive
environment.” Littlejohn, 795 F.3d at 320 (internal quotation marks omitted). Similarly, § 1983,
through its application of the Equal Protection Clause of the Fourteenth Amendment, “protects
[public] employees from sex-based workplace discrimination, including hostile work
environments . . . .” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014); see also Patterson v.
County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“[A]lthough . . . Title VII claims are not
cognizable against individuals, individuals may be held liable under . . . [§] 1983 for certain
types of discriminatory acts, including those giving rise to a hostile work environment.”). “The
standard for showing a hostile work environment under Title VII [and] [§] 1983 . . . is essentially
the same.” Smith v. Town of Hempstead Dep’t of Sanitation Sanitary Dist. No. 2, 798 F. Supp.
2d 443, 451 (E.D.N.Y. 2011), reconsideration denied, 982 F. Supp. 2d 225 (E.D.N.Y. 2013); see
also Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (“[Section] 1983 and the Equal
Protection Clause protect public employees from various forms of discrimination, including
hostile work environment . . . on the basis of gender. Once action under color of state law is
established, the analysis for such claims is similar to that used for employment discrimination
claims. Additionally, such claims are not listed in the “Claims for Relief” section of the SAC.
(See id. ¶¶ 47–60.) Accordingly, to the extent Plaintiff seeks to assert such claims in this Action,
they are dismissed.
claims brought under Title VII . . . .”); Ruiz v. City of New York, No. 14-CV-5231, 2015 WL
5146629, at *8 (S.D.N.Y. Sept. 2, 2015) (“The same standard [used for Title VII claims] is used
for evaluating hostile work environment claims under [§] 1983. . . .”).
“To establish a hostile work environment under Title VII . . . or § 1983, a plaintiff must
show that the ‘workplace is permeated with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment.’” Littlejohn, 795 F.3d at 320–21 (quoting Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)); see also Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)
(“To state a claim for a hostile work environment in violation of Title VII, a plaintiff must plead
facts that would tend to show that the complained of conduct: (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.’” (quoting Gregory
v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001))).2 At the motion to dismiss stage, however, “a
plaintiff need only plead facts sufficient to support the conclusion that she was faced with
‘harassment . . . of such quality or quantity that a reasonable employee would find the conditions
of her employment altered for the worse.’” Patane, 508 F.3d at 113 (quoting Terry v. Ashcroft,
336 F.3d 128, 148 (2d Cir. 2003); see also Gonzalez v. City of New York, No. 15-CV-3158, 2015
WL 9450599, at *4 (E.D.N.Y. Dec. 22, 2015) (same).
“Employment discrimination claims under [§] 1983 that seek to vindicate a plaintiff’s
Fourteenth Amendment right to equal protection under the laws are measured against the same
standards as are [the] [p]laintiff’s Title VII hostile work environment and sex . . . discrimination
claims.” Cortes v. City of New York, 700 F. Supp. 2d 474, 487 (S.D.N.Y. 2010).
“[A] work environment’s hostility should be assessed based on the totality of the
circumstances.” Patane, 508 F.3d at 113 (internal quotation marks omitted); see also Humphries
v. City Univ. of N.Y., No. 13-CV-2641, 2013 WL 6196561, at *10 (S.D.N.Y. Nov. 26, 2013)
(same). Relevant circumstances include: “(1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and (4)
whether it unreasonably interferes with an employee’s work performance.” Humphries, 2013
WL 6196561, at *10 (citing Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir.
2010)); see also Rivera v. Rochester Genesee Regional Trans. Auth., 743 F.3d 11, 20 (2d Cir.
2012) (same). “[W]hether a particular work environment is objectively hostile is necessarily a
fact-intensive inquiry,” and accordingly, the Second Circuit has “repeatedly cautioned against
setting the bar too high” in the context of a motion to dismiss. Pantane, 508 F.3d at 113–14
(internal quotation marks omitted); see also Gonzalez, 2015 WL 9450599, at *4 (same);
Humphries, 2013 WL 6196561, at *10 (same); Jackson v. N.Y. State Dep’t of Labor, No. 09-CV6608, 2012 WL 843631, at *4 (S.D.N.Y. Mar. 12, 2012) (same).
Finally, the incidents of harassment, generally, “‘must be more than episodic; they must
be sufficiently continuous and concerted in order to be deemed pervasive.’” Raspardo, 770 F.3d
at 114 (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)). However, “even a single
act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff’s
workplace.” Alfano, 294 F.3d at 374; see also Camarda v. City of New York, No. 11-CV-2629,
2015 WL 5458000, at *7 (E.D.N.Y. Sept. 16, 2015) (same), aff’d, 2016 WL 7234686 (2d Cir.
Dec. 14, 2016).
a. Plaintiff’s Claims Against Individual Defendants
The extent of Plaintiff’s allegations of sexual harassment is that “[f]rom very early in her
employment as a police officer, Bailey engaged in sexual harassment of Plaintiff. His conduct
included making comments about Plaintiff’s body, making requests for sex[,] and even going so
far as demanding money from Plaintiff if she was unwilling to sleep with him.” (SAC ¶ 30; see
also Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. To Dismiss the SAC (“Pl.’s Opp’n”) 8 (Dkt. No.
44) (rebutting Defendants’ arguments regarding hostile work environment by noting that
“Plaintiff alleges that Defendant Bailey commented on Plaintiff’s body, made requests for sexual
relations[,] and demanded money i[f] Plaintiff would not have sex with him”).) While Plaintiff
argues in her opposition papers that she “does not allege that this happened just once[,] but that it
continued over her employment,” (Pl.’s Opp’n 8), specific allegations are missing from the SAC.
The lack of specific allegations is complicated by the fact that Plaintiff fails to offer a timeline of
events from which the Court can discern the course of the alleged violations. Plaintiff asserts
that Bailey’s harassment began “[f]rom very early in her employment,” the conduct “continued”
and was “pervasive and ongoing,” (SAC ¶¶ 30, 36–37), until Plaintiff was transferred and
“Bailey’s harassment declined,” (id. ¶ 38). Yet, Plaintiff does not indicate when the transfer
occurred and thus the Court cannot determine for how long the alleged harassment persisted.
To be clear, allegations of “comments about Plaintiff’s body,” and “requests for sex” are
troubling and, not surprisingly, are the type of allegations that routinely support a hostile work
environment claim. See, e.g., Cruz v. N.Y. State Dep’t of Corr. and Cmty. Supervision, No. 13CV-1335, 2014 WL 2547541, at *3 (S.D.N.Y. June 4, 2014) (“Examples of actionable conduct
can ‘include unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature.’” (alteration omitted) (quoting Redd v. N.Y. Div. of Parole, 678 F.3d
166, 175 (2d Cir. 2012)); Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 441 (E.D.N.Y.
2010) (holding that the plaintiff adequately stated a hostile work environment claim where the
complaint alleged, inter alia, that the defendant propositioned the plaintiff and frequently
suggested that the plaintiff kiss him in the morning). But Plaintiff’s SAC is entirely devoid of
any allegations regarding the frequency or severity of such occurrences. For instance, Plaintiff
does not state how many comments or requests were made and when, or what was said. Such
amorphous allegations are insufficient even to clear the low bar of plausibility. (See generally
SAC.) See Batista v. Waldorf Astoria, No. 13-CV-3226, 2015 WL 4402590, at *8 (S.D.N.Y.
July 20, 2015) (“The word ‘continuously’ is vague and does not communicate the quantity,
frequency[,] or cumulative effect on [the] [p]laintiff’s work environment . . . .”); Almontaser v.
N.Y.C. Dep’t of Educ., No. 13-CV-5621, 2014 WL 3110019, at *8 (E.D.N.Y. July 8, 2014)
(“Plaintiff’s allegation that these remarks were ‘frequent’ is simply too vague, because the
precise frequency of such comments is of great importance in analyzing a hostile work
environment claim.”); Negron v. City of New York, No. 10-CV-2757, 2011 WL 4737068, at *1,
*7 (E.D.N.Y. Sept. 14, 2011) (granting a motion to dismiss a hostile work environment claim
where the plaintiff alleged that the defendant “repeatedly tried to sexually proposition her every
time they were alone” because the conduct “was not objectively severe or pervasive and at most
lasted for several weeks” (alteration and internal quotation marks omitted)).
“Isolated harassing events do not reach the level [of altering the conditions of a plaintiff’s
workplace] unless they involve an extraordinarily severe single event, or a series of incidents that
were sufficiently continuous and concerted to alter the conditions of a plaintiff’s working
environment.” Scott v. City of N.Y. Dept. of Corr., 641 F. Supp. 2d 211, 224 (S.D.N.Y. 2009)
(internal quotation marks omitted), aff’d sub nom. Scott v. N.Y.C. Dep’t of Corr., 445 F. App’x
389 (2d Cir. 2011). And while an “extraordinarily severe” single event could constitute
harassment, Mathirampuzha v. Potter, 548 F.3d 70, 79 (2d Cir. 2008), here Plaintiff offers no
additional allegations about Bailey’s propositioning that would allow the inference that it was
“extraordinarily severe.” Scott, 641 F. Supp. 2d at 224.
Nor is the Court persuaded by Plaintiff’s arguments that “the City is in sole possession of
numerous written complaints about the sexual harassment” and thus Defendants are aware of
“the exact number of times Plaintiff complained and the exact nature of the complaints Plaintiff
made.” (Pl.’s Opp’n 9.) Such assertions say nothing about Plaintiff’s obligation to submit “wellpleaded facts” as to “permit the court to infer more than the mere possibility of misconduct.”
Iqbal, 556 U.S. at 679 (emphasis added). That is particularly true because Plaintiff presumably
has first-hand knowledge of what was said to her by Bailey and when and how often he made
any actionable comments. Accordingly, Plaintiff’s claims against Bailey and Johnson are
b. Plaintiff’s Claims Against the City
Even had Plaintiff sufficiently pleaded that Bailey (at the direction of Johnson) created a
hostile work environment, Plaintiff’s claims against the City (Count I and Count II) fail because
Bailey’s behavior cannot be imputed to the City.
i. Remedial Action Under Title VII
“Under Title VII, an employer’s liability for such harassment may depend on the status of
the harasser.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). For an employer to be
held liable for a hostile work environment, the plaintiff must demonstrate either that “a
supervisor used his or her authority to further the creation of a discriminatorily abusive working
environment, or that the employer knew or reasonably should have known about harassment by
non-supervisory co-workers, yet failed to take appropriate remedial action.” Turley v. ISG
Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014) (citations, and internal quotation marks
omitted). Where the offensive behavior occurs at the hands of a co-worker, “the employer is
liable only if it was negligent in controlling working conditions,” Vance, 133 S. Ct. at 2439, such
as where it “did not monitor the workplace, failed to respond to complaints, failed to provide a
system for registering complaints, or effectively discouraged complaints from being filed,” id. at
2453. Here, Plaintiff asserts that “the City’s response to Bailey’s harassment was not
reasonable.” (Pl.’s Opp’n 9.)
“Title VII simply requires that the remedial action taken be reasonably calculated to end
the sexual harassment.” Cooper v. Wyeth Ayerst Lederle, 106 F. Supp. 2d 479, 495 (S.D.N.Y.
2000). Here, there is no allegation that the harassment continued following Plaintiff’s transfer.
(See SAC ¶ 39 (“After th[e] transfer, Bailey’s harassment declined.”).) And while it is clear that
Plaintiff is displeased with the action the City took in response to the harassment (by transferring
her away from Bailey), “Title VII does not convey upon an employee the absolute right to
demand that a workplace dispute be resolved in a way that is most attractive to her.” Cooper,
106 F. Supp. 2d at 495. The City’s “fail[ure] to take corrective action against Bailey,” (SAC
¶ 53), is immaterial, as “there is no requirement that the remedy include punishing the co-worker
responsible for the sexual harassment,” Cooper, 106 F. Supp. 2d at 495.
ii. Monell Liability Under § 1983
“To state a claim under [§ 1983], the plaintiff must show that a defendant, acting under
color of state law, deprived him of a federal constitutional or statutory right.” Sykes v. Bank of
Am., 723 F.3d 399, 405–06 (2d Cir. 2013). “Congress did not intend municipalities to be held
liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a
constitutional tort.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978).
Thus, “to prevail on a claim against a municipality under [§] 1983 based on acts of a public
official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a
constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the
municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir. 2008); cf. Salvatierra v. Connolly, No. 09-CV-3722, 2010 WL 5480756, at *10 (S.D.N.Y.
Sept. 1, 2010) (recommending dismissal of a claim against agencies where plaintiff did not
allege that any policy or custom caused the deprivation of his rights), adopted by 2011 WL 9398
(S.D.N.Y. Jan. 3, 2011); Arnold v. Westchester County, No. 09-CV-3727, 2010 WL 3397375, at
*9 (S.D.N.Y. Apr. 16, 2010) (recommending dismissal of a claim against county because
complaint “[did] not allege the existence of an unconstitutional custom or policy”), adopted sub
nom. Arnold v. Westchester Cty. Dep’t of Corr., 2010 WL 3397372 (S.D.N.Y. Aug. 25, 2010).
The fifth element reflects the notion that “a municipality may not be held liable under § 1983
solely because it employs a tortfeasor.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403
(1997); see also Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008) (“As
subsequently reaffirmed and explained by the Supreme Court, municipalities may only be held
liable when the municipality itself deprives an individual of a constitutional right.”). In other
words, a municipality may not be liable under [§] 1983 “by application of the doctrine of
respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (italics omitted);
see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal
entity may only be held liable where the entity itself commits a wrong” (emphasis in original)).
Instead, there must be a “direct causal link between a municipal policy or custom and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see also City of
St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments should be held responsible
when, and only when, their official policies cause their employees to violate another person’s
“In determining municipal liability, it is necessary to conduct a separate inquiry into
whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff’d, 75 F. App’x 827 (2d Cir. 2003). A plaintiff may satisfy the “policy
or custom” requirement by alleging
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted).
In the end, therefore, “a plaintiff must demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the alleged injury.” Roe, 542 F.3d at 37 (quoting
Brown, 520 U.S. at 404); see also Tuttle, 471 U.S. at 824 n.8 (“The fact that a municipal ‘policy’
might lead to ‘police misconduct’ is hardly sufficient to satisfy Monell’s requirement that the
particular policy be the ‘moving force’ behind a constitutional violation. There must at least be
an affirmative link between[, for example,] the training inadequacies alleged, and the particular
constitutional violation at issue.” (emphasis in original)); Batista v. Rodriguez, 702 F.2d 393, 397
(2d Cir. 1983) (“Absent a showing of a causal link between an official policy or custom and the
plaintiffs’ injury, Monell prohibits a finding of liability against the [c]ity.”); Johnson v. City of
New York, No. 06-CV-9426, 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting that after
demonstrating the existence of a municipal policy or custom, “a plaintiff must establish a causal
connection—an affirmative link—between the policy and the deprivation of his constitutional
rights” (internal quotation marks omitted)).
In response to Defendants’ contention that the “City [c]annot be [l]iable [u]nder § 1983
[a]bsent a [c]ustom or [p]olicy to [d]eprive Plaintiff of a [c]onstitutional [r]ight,” (Mem. of Law
in Supp. of Defs.’ Mot. To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (“Defs.’ Mem.”) 10
(Dkt. No. 43)), Plaintiff asserts that “there is an adequate allegation that both Johnson and the
officials in the Police Department in charge of the sexual harassment complaint process were
‘decision makers’ for the purposes of §1983,” (Pl.’s Opp’n 12). The Court is perplexed by this
assertion. Nowhere in the SAC does Plaintiff plead any facts to support an allegation that certain
individuals had policymaking or decisionmaking authority, let alone that Johnson herself, or
those overseeing the sexual harassment complaint process, did.
Bailey was not a policymaker (or a supervisor) and there are no allegations suggesting as
such. While Johnson may have been corporate counsel at the time the alleged conduct took
place, there is no allegation that she was a policymaker as it relates to employment practices at
the Police Department. See Praprotnik, 485 U.S. at 123 (requiring that “the challenged action”
be “taken pursuant to a policy adopted by the official or officials responsible under state law for
making policy in that area of the city’s business”); Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir.
2000) (requiring proof that “the official who is a final policymaker in the area directly
committed or commanded the violation of the plaintiff’s federal rights or . . . indirectly caused
the misconduct of a subordinate municipal employee” (emphasis added); Vaher v. Town of
Orangetown, 133 F. Supp. 3d 574, 594 (S.D.N.Y. 2015) (“In order to hold a municipality liable
for a single decision by a municipal policymaker, a plaintiff must demonstrate the
decisionmaker’s final policymaking authority over the specific area of government behavior that
is being challenged.” (citation, alterations, and internal quotation marks omitted)); Hardy v.
Town of Greenwich, No. 06-CV-833, 2009 WL 2176117, at *4 (D. Conn. July 22, 2009)
(holding that “while [the defendant] had broad discretion over appointment of particular officers
to specialized units, he did not exercise final policymaking authority in this area” (emphasis
added)). Indeed, the SAC says nothing of Johnson’s connection to the policies that existed at the
Police Department, or even the sexual harassment complaint process itself. Any assertion that
Plaintiff has “adequate[ly] alleg[ed]” otherwise is simply untrue. (Pl.’s Opp’n 12.) As Plaintiff
has failed to establish that she was subject to a hostile work environment, Defendants’ Motion is
granted as to Counts I and II.
Count III of the SAC alleges that the City retaliated against Plaintiff for activity protected
by Title VII. (SAC ¶¶ 56–60.)3 Title VII prohibits discrimination against an employee “because
he [or she] has opposed any practice made an unlawful employment practice.” 42 U.S.C.
§ 2000e-3(a). Courts analyze claims for retaliation pursuant to Title VII under the familiar
framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973). See Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (“Federal and
state law retaliation claims are reviewed under the burden-shifting approach of McDonnell
Count III of the SAC is titled “Against the City [o]f M[ount] Vernon and the M[ount]
Vernon Police Department.” (SAC ¶¶ 56–60.) The Police Department is not a defendant in this
Action, nor is it a suable entity. See Carroll v. City of Mount Vernon, 707 F. Supp. 2d 449, 450
n.2 (S.D.N.Y. 2010) (noting that the fire department is an administrative arm of the city and
“administrative arms of municipalities ‘do not have a legal identity separate and apart from the
municipality, and cannot sue or be sued’” (quoting Warner v. Vill. of Goshen Police Dep’t, 256
F. Supp. 2d 171, 175–76 (S.D.N.Y. 2003))), aff’d, 453 F. App’x 99 (2d Cir. 2011); Hall v. City
of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments
which are merely administrative arms of a municipality, do not have a legal identity separate and
apart from the municipality and cannot sue or be sued.”).
Douglas.”). “Under the first step of the McDonnell Douglas framework, the plaintiff must
establish a prima facie case of retaliation.” Id. at 844. Once the plaintiff has done so, “the
burden shifts to the employer to articulate some legitimate, non-retaliatory reason for the
employment action.” Id. at 845. “The employee at all times bears the burden of persuasion to
show retaliatory motive.” Cox v. Onondaga Cty. Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir.
To establish a prima facie case of retaliation, the plaintiff must show that: “(1) she was
engaged in an activity protected under Title VII; (2) her employer was aware of her participation
in the protected activity; (3) the employer took adverse action against her; and (4) a causal
connection existed between the protected activity and the adverse action.” Kwan, 737 F.3d at
850. To survive a motion to dismiss, however, a plaintiff need not plead a prima facie claim
satisfying each of the four elements listed above. “While the plaintiff ultimately will need
evidence sufficient to prove discriminatory motivation on the part of the employer-defendant, at
the initial stage of the litigation . . . the plaintiff does not need substantial evidence of
discriminatory intent.” Littlejohn, 795 F.3d at 311. If the plaintiff makes a showing “(1) that she
is a member of a protected class, (2) that she was qualified for the position she sought, (3) that
she suffered an adverse employment action, and (4) can sustain a minimal burden of showing
facts suggesting an inference of discriminatory motivation,” id., then she has satisfied the
requirements of a prima facie case and “a presumption of discriminatory intent arises in her
favor,” id. At that point “the burden of production shifts to the employer, requiring that the
employer furnish evidence of reasons for the adverse action.” Id.; see also Rogers v. Fashion
Inst. of Tech., No. 14-CV-6420, 2016 WL 889590, at *5 (S.D.N.Y. Feb. 26, 2016) (“[A]t the
initial stage of the litigation in a Title VII case, the plaintiff does not need substantial evidence of
discriminatory intent.” (internal quotation marks omitted)). Accordingly, “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 [her], (2) ‘because’ [she] has
opposed any unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801
F.3d 72, 90 (2d Cir. 2015); see also Shein v. N.Y.C. Dep’t of Educ., No. 15-CV-4236, 2016 WL
676458, at *7 (S.D.N.Y. Feb. 18, 2016) (noting that unlike “discrimination claims under Title
VII, the plaintiff must plausibly allege that the retaliation was a but-for cause of the employer’s
adverse action” (internal quotation marks omitted)); Goodine v. Suffolk Cty. Water Auth., No. 14CV-4514, 2016 WL 375049, at *6 (E.D.N.Y. Jan. 29, 2016) (“For a retaliation claim to survive a
motion to dismiss, a plaintiff must allege facts showing that: ‘(1) defendants discriminated—or
took an adverse employment action—against [her], (2) because [s]he has opposed any unlawful
employment practice.’” (quoting Vega, 801 F.3d at 90)).
Defendants do not dispute that Plaintiff was engaged in protected activity and that the
alleged retaliator knew that Plaintiff was involved in such protected activity. (See Defs.’ Mem.
17 (“For purposes of this [M]otion, the City will address the third and fourth prongs [of the
prima facie case] which are in dispute.”).) The Court therefore addresses whether “the employer
took adverse action against [Plaintiff]” and whether “a causal connection existed between the
protected activity and the adverse action.” Kwan, 737 F.3d at 850.
a. Adverse Employment Action
In their Motion To Dismiss, Defendants contest that Bailey’s verbal threats, the transfer
of Plaintiff to a separate unit, her placement on paid administrative leave status, and her
termination without a hearing constitute adverse employment actions. (Defs.’ Mem. 17–20.) In
her opposition, Plaintiff contends that both her termination and the significant reduction of her
responsibilities were adverse employment actions, (Pl.’s Opp’n 12–13), but fails to address
Bailey’s threats or Plaintiff’s placement on paid administrative leave. The Court thus considers
only Plaintiff’s transfer and subsequent termination.
“The Supreme Court has held that in the context of a Title VII retaliation claim, an
adverse employment action is any action that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)); see also Hicks v. Baines, 593 F.3d 159,
162 (2d Cir. 2010) (“[R]etaliation is unlawful when the retaliatory acts were harmful to the point
that they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” (internal quotation marks omitted)). The action must be “more disruptive than a
mere inconvenience or an alteration of job responsibilities.” Terry v. Ashcroft, 336 F.3d 128,
138 (2d Cir. 2003) (internal quotation marks omitted). “Examples of materially adverse changes
include termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices unique to a particular situation.” Id. (alteration and internal quotation marks
i. Plaintiff’s Transfer
Plaintiff alleges that “[a]fter filling out numerous written complaints concerning Bailey,
Plaintiff was transferred to another unit in the Police Department,” and was “essentially
ostracized into a sub-station of the Police Department and cut off from other officers.” (SAC
¶ 38; see also id. ¶ 39 (alleging “Plaintiff had essentially been segregated from the rest of the
“[A] transfer is an adverse employment action if it results in a change in responsibilities
so significant as to constitute a setback to the plaintiff's career.” Galavba v. N.Y.C. Bd. of
Educ., 202 F.3d 636, 641 (2d Cir. 2000). “[L]ateral transfers can, in certain circumstances, be
tantamount to a demotion, and therefore, an adverse employment action.” Pacheco v. N.Y.
Presbyterian Hosp., 593 F. Supp. 2d 599, 618 (S.D.N.Y. 2009); see Cayemittes v. City of N.Y.
Dep’t of Hous. Pres. & Dev., No. 10-CV-8486, 2012 WL 406915, at *4 (S.D.N.Y. Feb. 9, 2012)
(finding the plaintiff “satisfied the adverse employment action requirement by alleging that his
transfer . . . constituted a demotion”). However, “[a] transfer that is truly lateral and involves no
significant changes in an employee’s conditions of employment is not an adverse employment
action regardless of whether the employee views the transfer negatively.” Watson v. Paulson,
578 F. Supp. 2d 554, 563 (S.D.N.Y. 2008), aff’d sub nom. Watson v. Geithner, 355 F. App’x 482
(2d Cir. 2009); see also Pimentel v. City of New York, No. 00-CV-326, 2002 WL 977535, at *4
(S.D.N.Y. May 14, 2002) (noting that there is no adverse employment action when the
transferred employee has “the same opportunities for promotion” (internal quotation marks
omitted)), aff’d, 74 F. App’x 146 (2d Cir. 2003). “The fact that [the] [P]laintiff may not have
wanted to transfer does not alter the analysis.” Pacheco, 593 F. Supp. 2d at 618; see also Garber
v. N.Y.C. Police Dep’t, No. 95-CV-2516, 1997 WL 525396, at *7 (S.D.N.Y. Aug. 22, 1997)
(“[The] [p]laintiff’s dissatisfaction with the transfer, standing alone, does not support his claim
of an adverse employment action.” (footnote omitted)), aff’d, 159 F.3d 13461998 WL 514222
(2d Cir. 1998).
In her opposition to Defendants’ Motion, Plaintiff argues that she “does not allege a
transfer in department,” but “[r]ather, . . . that she was segregated within the Police Department
and precluded from performing the duties that a probationary police officer would perform.”
(Pl.’s Opp’n 12 (emphasis added).) As to Plaintiff’s claims that she was segregated, such
conduct is not an adverse employment action. See Miksic v. TD Ameritrade Holding Corp., No.
12-CV-4446, 2013 WL 1803956, at *4 (S.D.N.Y. Mar. 7, 2013) (“With respect to [the]
[p]laintiff’s allegations that he was ‘isolated,’ ‘it is well established that ostracism and isolation
at work is not enough to constitute an adverse employment action.’” (alterations omitted)
(quoting Danieu v. Teamsters Local 264, No. 08-CV-500S, 2011 WL 1259839, at *9 (W.D.N.Y.
Mar. 31, 2011))). As to Plaintiff’s argument that she was “precluded from performing the duties
that a probationary police officer would perform,” (Pl.’s Opp’n 12), Plaintiff does not allege as
such in the SAC. While Plaintiff does allege that “[t]he segregation . . . was explicitly designed
to have a negative impact o[n] her job performance,” (SAC ¶ 40), she does not allege that the
transfer resulted in diminished responsibilities or indeed, responsibilities that were at all different
from those Plaintiff had prior to the transfer. See Jiggetts v. Local 32BJ, SEIU, No. 10-CV-9082,
2011 WL 4056312, at *10 (S.D.N.Y. Aug. 10, 2011) (dismissing Title VII retaliation claim
because the plaintiff had “not presented any facts or argument suggesting that his transfer
constituted a materially adverse change in the nature of his employment”). Plaintiff’s allegation
that she was placed “in a position where she was unable to adequately fulfill the duties of her
job,” (SAC ¶ 53), is wanting of any detail and, indeed, undercuts Plaintiff’s assertion that she
had “significantly diminished material responsibilities,” (Pl.’s Opp’n 12 (internal quotation
marks omitted)). Plaintiff “cannot use [her] opposition brief to amend [her] allegation.” CSX
Transp., Inc. v. Emjay Envtl. Recycling, Ltd., No. 12-CV-1865, 2013 WL 1209116, at *2
(E.D.N.Y. Mar. 25, 2013); see also Fadem v. Ford Motor Co., 352 F. Supp. 2d 501, 516
(S.D.N.Y. 2005) (“It is long-standing precedent in [the Second Circuit] that parties cannot amend
their pleadings through issues raised solely in their briefs.”), aff’d, 157 F. App’x 398 (2d Cir.
2005). Plaintiff has failed to plead that her transfer “was to a position materially less prestigious,
less suited to [her] skills, or less conducive to career advancement.” Pacheco, 593 F. Supp. 2d at
618. To conclude otherwise, “[the Court] would have to do more than read [the facts] in a light
favorable to [Plaintiff’s] claim; [the Court] would in effect have to invent that portion of her
complaint explaining why those actions are adverse to her.” Weeks v. N.Y. State (Div. of
Parole), 273 F.3d 76, 87 (2d Cir. 2001), abrogated on other grounds by Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002).
ii. Plaintiff’s Termination
Plaintiff alleges that “[i]n or around early June 2014, Plaintiff received notice from the
Police Department that she was being placed on ‘paid administrative leave,’” and accordingly,
Plaintiff “had been effectively terminated without a hearing and without all of the processes due
her under any and all applicable law[s].” (SAC ¶¶ 42–43.) At some later point, “Plaintiff
received notice that she was not going to be retained after her probationary period.” (Id. ¶ 44.)
Plaintiff asserts that she was entitled to a formal meeting with the Commissioner of the Police
Department, but her request to have such a meeting was denied. (Id. ¶¶ 44–45.) Defendants
argue that as a probationary employee, Plaintiff “was not entitled to a due process hearing.”
(Defs.’ Mem. 20.)
As noted above, in the context of a Title VII retaliation claim, an adverse employment
action is one that could “dissuade a reasonable worker from making or supporting a charge of
discrimination.” Vega, 801 F.3d at 90 (internal quotation marks omitted). “Termination is
clearly a materially adverse action that would dissuade a reasonable worker from making a
complaint.” Thomas v. iStar Fin., Inc., 438 F. Supp. 2d 348, 366 (S.D.N.Y. 2006). However,
here, it is unclear whether Plaintiff was actually terminated per se. Instead, Plaintiff was “not . . .
retained after her probationary period.” (SAC ¶ 44 (emphasis added).) However, Courts have
found that the decision not to rehire or retain an employee is a sufficient adverse employment
action. See Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) (“A claim
of refusal to rehire an individual following the filing of an employment discrimination charge
may be a basis for a claim of retaliation”); Travessi v. Saks Fifth Ave., Inc., No. 00-CV-8970,
2005 WL 1981705, at *4 (S.D.N.Y. Aug. 15, 2005) (“[The plaintiff] . . . has shown that she was
not rehired, which clearly is an adverse employment action.”); Walker v. City of New York, No.
98-CV-2695, 2002 WL 31051534, at *4 (E.D.N.Y. July 22, 2002) (finding the plaintiff suffered
an adverse employment action where she was “not retained for employment”); Carr v. Health
Ins. Plan of Greater N.Y., Inc., No. 99-CV-3706, 2001 WL 563722, at *2 (S.D.N.Y. May 24,
2001) (same). Whether Plaintiff was not retained or terminated is immaterial for the purposes of
the instant Motion, as the outcome for Plaintiff was the same: she was no longer employed by the
Police Department. The Court therefore finds that Plaintiff’s termination constituted an adverse
employment action that would “dissuade a reasonable worker from making or supporting a
charge of discrimination,” Vega, 801 F.3d at 90 (internal quotation marks omitted), and turns to
whether Plaintiff has presented evidence suggesting that “a causal connection existed between
the protected activity and the adverse action,” Kwan, 737 F.3d at 850.
b. Causal Connection
Plaintiff asserts that “Bailey undertook a concerted course of conduct intended to [e]nsure
that Plaintiff would be terminated from her position as a police officer,” and that Bailey did so
“as direct retaliation for both (i) Plaintiff having reported him for sexual harassment and (ii)
Plaintiff having filed a lawsuit against the City of M[ount] Vernon and the M[ount] Vernon
Youth Bureau for sexual harassment.” (SAC ¶ 57.) Plaintiff does not assert a retaliation claim
against Bailey, and, indeed, there is no suggestion that Bailey had supervisory capacity over
Plaintiff or any decisionmaking authority in regard to terminating her employment. However,
here, the Court construes Plaintiff’s allegations as asserted against the City.
A plaintiff can demonstrate the causal connection one of two ways: “(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.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000);
see also Richardson v. Bronx Lebanon Hosp., No. 11-CV-9095, 2014 WL 4386731, at *12
(S.D.N.Y. Sept. 5, 2014) (same); Weber v. City of New York, 973 F. Supp. 2d 227, 270
(E.D.N.Y. 2013) (same). As Plaintiff does not allege any direct evidence of retaliation, she can
only rely on a temporal connection between the protected activity and adverse employment
“[A] plaintiff can indirectly establish a causal connection to support a retaliation claim by
showing that the protected activity was closely followed in time by the adverse employment
action.” Kwan, 737 F.3d at 845 (alterations and internal quotation marks omitted); see also
Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (“We have held that a close
temporal relationship between a plaintiff’s participation in a protected activity and an employer’s
adverse actions can be sufficient to establish causation.”). Although the Second Circuit “ha[s]
not drawn a bright line to define the outer limits beyond which a temporal relationship is too
attenuated to establish a causal relationship between [a protected activity] and an allegedly
retaliatory activity,” Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (internal
quotation marks omitted), the temporal proximity must be “very close,” Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273–74 (2001) (per curiam) (internal quotation marks omitted); see, e.g.,
Williams v. Woodhull Med. & Mental Health Ctr., No. 10-CV-1429, 2012 WL 555313, at *2
(E.D.N.Y. Jan. 31, 2012) (“[D]istrict courts in [the Second] Circuit have consistently held that a
passage of more than two months between the protected activity and the adverse employment
action does not allow for an inference of causation.”), adopted by 2012 WL 567028 (E.D.N.Y.
Feb. 21, 2012); Baez v. Visiting Nurse Serv. of N.Y. Family Care Serv., No. 10-CV-6210, 2011
WL 5838441, at *6 (S.D.N.Y. Nov. 21, 2011) (“[T]he yearlong gap between two events far
exceeds the normal span of time from which causality may be inferred.”); Nicastro v. Runyon, 60
F. Supp. 2d 181, 185 (S.D.N.Y. 1999) (“Claims of retaliation are routinely dismissed when as
few as three months elapse between the protected EEO activity and the alleged act of
retaliation.” (citations omitted)).
Here, the Court is unable to determine whether Plaintiff has plausibly alleged a “close
temporal relationship” “sufficient to establish causation,” Treglia, 313 F.3d at 720, because
Plaintiff provides no detail as to the timeline of events. Plaintiff alleges that she was sworn into
the Police Department on January 6, 2013 and that she was placed on paid administrative leave
in early June 2014. (SAC ¶¶ 27, 42.) Plaintiff allegedly became the victim of Bailey’s
harassment at some point “very early in her employment” and “filed several harassment
complaints about Bailey with the Police Department.” (Id. ¶¶ 30–31.) But Plaintiff does not
indicate when these complaints were filed, the time between the filings, or most importantly,
how soon “[a]fter filling out numerous written complaints concerning Bailey,” Plaintiff was
transferred or terminated. (Id. ¶ 38.) Indeed, Plaintiff does not indicate how much time passed
between her placement on paid administrative leave and her receipt of notice that she would not
be retained after her probationary period. Plaintiff’s indication that such action occurred
“[e]ventually,” (id. ¶ 44), is simply not the type of “well-pleaded fact,” Iqbal, 556 U.S. at 679,
needed to “nudge [Plaintiff’s] claims across the line from conceivable to plausible,” Twombly,
550 U.S. 570.
This is not to imply that Plaintiff must recall with exact precision the dates on which each
event occurred. Plaintiff argues that Defendants “audaciously assert that [they] do not have
enough detail to understand what it is that Plaintiff complains of,” (Pl.’s Opp’n 3), but in fact, the
Plaintiff has failed to allege facts to plausibly state a retaliation claim. Far from “attempting to
lure Plaintiff into a memory game of gotcha” or “gain an advantage in this litigation by
challenging Plaintiff’s credibility,” (id.), Defendants are objecting to ensure that Plaintiff’s
claims are “sufficiently alleged to permit [Defendants] to prepare an answer, frame discovery,
and defend against these charges,” Dev. Specialists, Inc. v. Dechert LLP, No. 11-CV-5984, 2013
WL 4573733, at *9 (S.D.N.Y. Aug. 22, 2013). Plaintiff need not provide the exact date or even
the week or month in which the relevant conduct occurred. Even a particular season or time of
year or approximate lapse of time might be sufficient. But here, Plaintiff’s SAC offers no such
facts to assist the Court.
The same is true for Plaintiff’s claim that she was retaliated against for having filed a
lawsuit against the City and the Mount Vernon Youth Bureau. Plaintiff supplies no details of
when the suit was filed, other than her claim that “[a]t the time she applied to the Police
Department, Plaintiff had filed a Notice of Claim with the City . . . but no complaint had been
filed in any [c]ourt naming the City . . . as a defendant.” (SAC ¶ 29.) And while this Court is
familiar with the procedural history of Plaintiff’s case against the City and the Mount Vernon
Youth Bureau, without a clear timeline of the events underlying this Action, the Court cannot
determine whether the timing of the filing of Plaintiff’s previous lawsuit and the adverse action
in this case are close enough in time to allow for an inference of causation. See Anand v. N.Y.
State Dep’t of Taxation & Fin., No. 10-CV-5142, 2012 WL 2357720, at *6 (E.D.N.Y. June 18,
2012) (dismissing the plaintiff’s retaliation claim because the plaintiff “provided no dates of
the events, and the [c]ourt [could not] determine whether there was a genuine temporal
proximity between them”). Taking as true, at it must at this stage, Plaintiff’s allegations, the
Court finds that Plaintiff has failed to state a claim for retaliation against the City. Accordingly,
Defendants’ Motion To Dismiss this claim is granted.
C. State Law Claims
The SAC states that “Plaintiff . . . brings this [A]ction pursuant to 42 U.S.C. § 2000 et
seq. and New York State [l]aw.” (SAC 1.) As Defendants note, Plaintiff “does not allege a
violation of any specific provision of state law,” (Defs.’ Mem. 22), and Plaintiff does not
respond to this argument or cite to any state law in her opposition.
To the extent Plaintiff asserts state-law claims against Defendants, the Court declines to
exercise supplemental jurisdiction over any such claims because the Court has dismissed
Plaintiff’s federal claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1996)
(“Certainly, if the federal claims are dismissed before trial, . . . the state claims should be
dismissed as well.”); McGugan v. Aldana–Bernier, No. 11-CV-342, 2012 WL 1514777, at *8
(E.D.N.Y. Apr. 30, 2012) (“[W]hen all federal claims are eliminated in the early stages of
litigation, the balance of factors generally favors declining to exercise pendent jurisdiction over
remaining state law claims and dismissing them without prejudice.”), aff’d, 752 F.3d 224 (2d
In light ofthe foregoing, the Court grants Defendants' Motion To Dismiss in its entirety.
As Plaintiff has already had two opportunities to amend her pleadings, the Court dismisses her
claims with prejudice. See Anthony v. Brockway, No . 15-CV -451 , 2015 WL 5773402, at *3
(N.D.N.Y . Sept. 30, 2015) (" [The] [p]laintiffhas already been given one opportunity to amend
[her] complaint . .. , and there is nothing in his second amended complaint suggesting that [she]
could do better given another opportunity."); Al-Qadaffi v. Servs. for the Underserved (SUS) , No.
13-CV-8193, 2015 WL 585801 , at *8 (S.D .N .Y. Jan . 30, 2015) (denying leave to amend where
" [the plaintiff] has already had one chance to amend his [c ]om plaint, and there is still no
indication that a valid claim might be stated if given a second chance"), aff'd, 632 F. App ' x 31
(2d Cir. 2016); Bui v. Indus. Enters. ofAm. , Inc., 594 F. Supp. 2d 364, 373 (S .D .N .Y. 2009)
(dismissing an amended complaint with prejudice where the plaintiff failed to cure the
deficiencies identified in his initial complaint despite " being given ample opportunity to do so").
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.
41 ), and close this case.
SO ORDE RED .
Marchc28 , 2017
White Plains, New York
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