Olivier v. County Of Rockland et, al

Filing 28

OPINION & ORDER re: 19 MOTION to Dismiss , filed by County Of Rockland, Rockland County Sheriff's Department. Defendants ' Motion is granted with respect to those claims related to acts occurring before January 21, 2014. Plaintiff's claim for the disciplinary charge propounded on April 14, 2014 is unaffected by this Order. Should Plaintiff wish to assert claims for hostile work environment or retaliation, he may file an Amended Complaint within 30 days of the date of this Order, or alert the Court within 30 days that he does not intend to file an Amended Complaint. The Clerk of Court is respectfully directed to terminate the pending Motion. (See Dkt. No. 19.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/8/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

FRANK OLIVIER,
Plaintiff,
No. 15-CV-8337 (KMK)
v.
OPINION & ORDER
COUNTY OF ROCKLAND, ROCKLAND
COUNTY SHERIFF’S DEPARTMENT,
Defendants.

Appearances:
Michael H. Sussman, Esq.
Sussman & Watkins
Goshen, NY
Counsel for Plaintiff
Robert B. Weissman, Esq.
Saretsky Katz Dranoff & Glass LLP
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Frank Olivier (“Plaintiff”) brings this Action pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5 et seq., against Defendants County of
Rockland and Rockland County Sheriff’s Department (“Defendants”) alleging that Defendants
engaged in unlawful discrimination against him on the basis of his race. Before the Court is
Defendants’ Motion To Dismiss. (See Dkt. No. 19.) For the reasons to follow, the Motion is
granted in part.

I. Background
A. Factual Background
Because this case comes before the Court on a Motion To Dismiss, the Court takes as
true the facts set forth in Plaintiff’s Complaint.
Plaintiff is a black male of Haitian descent who has been employed by Defendants as a
correction officer for over 20 years. (See Compl. ¶¶ 1–2 (Dkt. No. 1).) Defendant Rockland
County Sheriff’s Department is Plaintiff’s direct employer. (See id. ¶ 2.) The basis of this
Action is Plaintiff’s allegation that “Defendants have subjected [him] to an ongoing series of
racially discriminatory actions which constitute a continuing violation of Title VII.” (Id. ¶ 5.)
On June 27, 2013, Defendants “propounded baseless disciplinary charges” against
Plaintiff, alleging that he was “passing several objects” to an inmate the day before and
interacting with the inmate in an inappropriate and unprofessional manner. (Id. ¶ 7 (internal
quotation marks omitted).) Plaintiff had, in fact, engaged in no inappropriate conduct on that
day, nor had he engaged in any conduct that violated the rules promulgated by Defendants. (See
id. ¶ 8.) Defendants had never lodged charges against white officers who engaged in
inappropriate conduct at the jail where Plaintiff works. (See id. ¶ 9.)
After these charges were issued against Plaintiff, the chief of the jail claimed that
Plaintiff had entered into an agreement allowing Defendants “to abrogate his bid assignment and
cost him overtime opportunities.” (Id. ¶ 10.)1 An arbitrator, however, subsequently determined
that Plaintiff never made any such agreement. (See id. ¶ 11.) Nevertheless, in the summer of
2013, Defendants “violated . . . [P]laintiff’s bid without any contractual basis or business

1

Plaintiff has made no effort to explain what a “bid assignment” is.
2

reason.” (Id. ¶ 12.) Defendants did not behave similarly with respect to similarly-situated white
officers. (See id. ¶ 13.)
On September 10, 2013, Defendants charged Plaintiff with another set of disciplinary
infractions, this time alleging that Plaintiff had violated the jail’s social networking and media
sites policy. (See id. ¶ 13A.)2 The charge arose from an allegation that Plaintiff appeared on a
Facebook page “in uniform carrying a weapon.” (See id. (internal quotation marks omitted).)
The charge, however, was without factual basis, and the hearing officer who reviewed the charge
on May 28, 2014, concluded that the allegation was baseless and ordered Defendants to pay back
the time Plaintiff lost while on unpaid suspension. (See id.) Defendants have treated white
officers charged with similar Facebook violations more leniently than they treated Plaintiff. (See
id. ¶ 15.)
On December 26, 2013, Defendants gave Plaintiff a poor evaluation, highlighting issues
that no supervisor had raised with Plaintiff before or during the evaluation period. (See id. ¶ 16.)
The next day, December 27, Defendants charged Plaintiff with using leave without pay absent a
prior written request several times in 2013: October 30, and December 2, 4, 5, 6, 9, 10, and 11.
(See id. ¶ 17.) Defendants acknowledged that Plaintiff was sick on these days and that Plaintiff
called in to work at least one-half hour prior to his scheduled shift on each day. (See id. ¶ 18.)
Additionally, when Defendants brought the charges, they knew that Plaintiff suffered
from a “chronic medically verified condition arising from work-related PTSD,” and that this
condition sometimes rendered him unable to report for duty. (See id. ¶ 19.) The collective
bargaining agreement governing the conduct of the Parties also contained a provision warning

2

Plaintiff uses two paragraphs 13 in his Complaint. This citation refers to the second
paragraph 13.
3

Defendants against unduly penalizing employees for absences “due to factors of health not
within their control.” (Id. ¶ 20 (internal quotation marks omitted).) Moreover, at the time
Plaintiff called into work, he had sufficient leave time available to cover the days. (See id. ¶ 21
(internal quotation marks omitted).) The hearing officer who heard the matter determined that
the charges were “patently erroneous.” (Id.)
On April 14, 2014, Defendants lodged more charges against Plaintiff, this time in relation
to his participation in a movie. (See id. ¶ 22.) According to Plaintiff, Defendants knew about the
movie for more than three years before propounding the disciplinary charges, thus making the
charges untimely. (See id.) As a result of these charges, Defendants suspended Plaintiff for
more than 30 days and have never convened a hearing to adjudicate the charges. (See id. ¶ 23.)
Defendants have not even selected a hearing officer to preside over the hearing. (See id. ¶ 27.)
After Defendants suspended Plaintiff without pay following the lodging of the
disciplinary charges in April 2014, Plaintiff sought to collect unemployment insurance benefits.
(See id. ¶ 28.) Although Defendants initially opposed Plaintiff’s request, (see id. ¶ 30), after
Plaintiff showed them evidence suggesting that the chief of the jail had viewed parts of the
movie at issue several years before propounding the disciplinary charges, Defendants withdrew
their objection to Plaintiff’s request for unemployment insurance benefits, (see id. ¶¶ 29–30).
Plaintiff further alleges that, apart from the disciplinary charges brought against him,
Defendants have “engaged in a continuing set of harassing practices which demonstrate the
intentional[ly] racial bias to which they have subjected [P]laintiff.” (Id. ¶ 31.) Specifically,
Plaintiff alleges that:

4

(1) In June 2013, Defendants assigned Plaintiff to work in the unit of an inmate whom
Plaintiff had shot during an escape attempt in 1995 and with whom Defendants knew
Plaintiff could not have contact, (see id. ¶ 31(a));
(2) Defendants suspended Plaintiff without pay and barred him from entering the jail while
his disciplinary charges were pending, even though Plaintiff did not pose a threat to the
jail’s operations, (see id. ¶ 31(b));
(3) Defendants have suborned the making of false statements by “Chief Volpe” against
Plaintiff, including statements related to Plaintiff’s participation in the movie in which he
appeared, (see id. ¶ 31(c));3 and
(4) After the filing of Plaintiff’s EEOC charge in connection with this suit, Defendants
served another set of baseless charges on Plaintiff, (see id. ¶ 31(d)).
Plaintiff also offers allegations regarding the treatment of similarly-situated white
officers. Plaintiff alleges, for instance, that one white officer, whom supervisors knew had
brought contraband into the jail, was promoted to sergeant. (See id. ¶ 33.) Additionally, several
white officers have taken time off when they did not have leave, and did so without following the
applicable procedures. (See id. ¶ 34.) And while other white officers were permitted to work
“overtime” while suspended, Plaintiff was never given a similar opportunity. (See id. ¶ 35.)
None of the white correction officers has been charged in the same way Defendants have
disciplined Plaintiff. (See id. ¶ 36.)

3

Though Plaintiff does not explain who “Chief Volpe” is, the Court assumes this refers
to the chief of the jail in which Plaintiff works.
5

As a result of this “continuing pattern of racial discrimination to which [Plaintiff] has
been subject,” Plaintiff’s PTSD has been exacerbated, and has worsened with each new act of
discrimination. (See id. ¶ 37.)
B. Procedural History
Plaintiff filed his Complaint on October 22, 2015. (See Dkt. No. 1.) On December 26,
2015, Defendants requested leave to file a Motion To Dismiss. (See Letter from Robert B.
Weissman, Esq., to Court (Dec. 26, 2015) (Dkt. No. 12).) Plaintiff responded two days later.
(See Letter from Michael H. Sussman, Esq., to Court (Dec. 28, 2015) (Dkt. No. 13).) On
February 3, 2016, the Court approved the proposed schedule for the Motion. (See Memo
Endorsement (Dkt. No. 18).) Defendants filed their Motion To Dismiss and accompanying
papers on March 1, 2016. (See Dkt. Nos. 19–21.) Plaintiff filed his opposition on April 1, 2016.
(See Dkt. No. 22.) Pursuant to Plaintiff’s request regarding the redaction of certain private
information, Defendants refiled their Declaration in support of the Motion on April 8, 2016. (See
Dkt. No. 26.) Defendants filed their reply brief on April 15, 2016. (See Dkt. No. 27.)
II. Discussion
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

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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)

7

(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same). The Court thus draws the pertinent facts from the Complaint and the
documents appended to the Complaint. See Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir.
2016). Here, that includes the complaints filed by Plaintiff with the EEOC.
B. Analysis
The chief issue in this Motion is whether Plaintiff has adequately pleaded a continuing
violation of Title VII such that all of his claims are timely. Accordingly, the Court will first
examine whether Plaintiff’s claims are timely before examining the remaining issues.
1. Timeliness of Pre-January 21, 2014 Claims
“An aggrieved employee wishing to bring a Title VII claim in district court must file an
administrative complaint with the EEOC within 300 days of the alleged discriminatory act.”
Petrosino v. Bell Atl., 385 F.3d 210, 219 (2d Cir. 2004); see also 42 U.S.C. § 2000e-5(e). “[A]
claim of employment discrimination accrues for statute of limitations purposes on the date the
employee learns of the employer’s discriminatory conduct.” Flaherty v. Metromail Corp., 235
F.3d 133, 137 (2d Cir. 2000).
Plaintiff filed his initial complaint with the EEOC on November 17, 2014. (See Decl. of
Robert B. Weissman (“Weissman Decl.”) Ex. A (Dkt. No. 26).) Defendants argue that any
claims for discrimination that accrued prior to January 21, 2014 are therefore time-barred. (See
Mem. of Law in Supp. of Defs.’ Mot. To Dismiss Pursuant to F.R.C.P. 12(b)(6) (“Defs.’ Mem.”)
3 (Dkt. No. 21).) Plaintiff does not dispute this basic point, but instead argues that under the
continuing violation doctrine, Plaintiff’s claims arising prior to January 21, 2014 may be
considered because they are part of a continuing practice and policy of discrimination, and at

8

least one of the discriminatory acts accrued after January 21, 2014. (See Mem. of Law in Opp’n
to Defs.’ Mot. To Dismiss (“Pl.’s Opp’n”) 7 (Dkt. No. 22).)
Under federal law, a claim ordinarily accrues when the “plaintiff knows or has reason to
know of the injury which is the basis of his action.” Cornwell v. Robinson, 23 F.3d 694, 703 (2d
Cir. 1994). “When a plaintiff experiences a ‘continuous practice and policy of discrimination,’
however, ‘the commencement of the statute of limitations period may be delayed until the last
discriminatory act in furtherance of it.’” Id. (some internal quotation marks omitted) (quoting
Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir. 1992)). Thus,
[w]hile discrete incidents of discrimination that are not related to discriminatory
policies or mechanisms may not amount to a continuing violation, a continuing
violation may be found where there is proof of specific ongoing discriminatory
polic[i]es or practices, or where specific and related instances of discrimination are
permitted by the employer to continue unremedied for so long as to amount to a
discriminatory policy or practice.
Id. at 704 (citation omitted). The Supreme Court has clarified that “discrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in timely filed
charges,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), and that “[e]ach
incident of discrimination and each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice,’” id. at 114. Accordingly, “an allegation of
an ongoing discriminatory policy does not extend the statute of limitations where the individual
effects of the policy that give rise to the claim are merely discrete acts.” Chin v. Port Auth. of
N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012).
Here, with the exception of the pending disciplinary charge filed on April 14, 2014 and
the allegedly “baseless charges” propounded on Plaintiff after he filed his first EEOC charge, all
of the allegedly discriminatory acts occurred prior to January 21, 2014. Plaintiff, apparently in
anticipation of Defendants’ argument, has peppered his Complaint with allegations that, among
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other things, “[D]efendants have engaged in a pattern and practice of racial discrimination,”
(Compl. ¶ 3), “Defendants have subjected [P]laintiff to an ongoing series of racially
discriminatory actions which constitute a continuing violation of Title VII,” (id. ¶ 5), and
“[D]efendants have engaged in a continuing set of harassing practices which demonstrate the
intentional[ly] racial bias to which they have subjected [P]laintiff,” (id. ¶ 31; see also id. ¶¶ 6,
12, 16, 39). However, as general allegations of an “ongoing discriminatory policy” do not
suffice to invoke the continuing violation doctrine where the “individual effects of the policy that
give rise to the claim are merely discrete acts,” Chin, 685 F.3d at 157, the Court must examine
the specific factual allegations to determine whether Plaintiff has pleaded facts sufficient to
invoke the continuing violation doctrine, see also Emmons v. City Univ. of N.Y., 715 F. Supp. 2d
394, 412 (E.D.N.Y. 2010) (“Mere allegation of . . . a continuing practice does not guarantee a
clear path.”).
Plaintiff’s allegations relate largely to disciplinary charges brought against him on June
27, 2013, September 10, 2013, and December 27, 2013, as well as a poor evaluation given to
Plaintiff on December 26, 2013. Courts in the Second Circuit are in agreement that disciplinary
actions against employees and negative employee evaluations are discrete acts that do not
constitute a continuing violation. See Yang v. Dep’t of Educ. of the City of N.Y., No. 14-CV7037, 2016 WL 4028131, at *5 (E.D.N.Y. July 26, 2016) (“The [c]ourt agrees with [the]
[d]efendant that the negative evaluations issued prior to February 26, 2013, cannot each serve as
the basis for a separate Title VII claim. Unsatisfactory ratings and negative evaluations are
discrete acts.”); Pietri v. N.Y.S. Office of Court Admin., 936 F. Supp. 2d 120, 134 (E.D.N.Y.
2013) (“[The] [p]laintiff alleges that Hispanic officers were routinely denied promotions,
subjected to disparate discipline, and denied transfer opportunities. These are all discrete acts of

10

discrimination and each incident constitutes a separate actionable unlawful employment
practice.” (citation and internal quotation marks omitted)); Sotomayor v. City of New York, 862
F. Supp. 2d 226, 250 (E.D.N.Y. 2012) (declining to apply the continuing violation doctrine to
“disciplinary letters issued to [the] plaintiff during the 2007–2008 and 2008–2009 school
years”), aff’d, 713 F.3d 163 (2d Cir. 2013); see also Valtchev v. City of New York, 400 F. App’x
586, 589 (2d Cir. 2010) (“[The plaintiff] ultimately raises only failure to promote claims and
discrete instances of retaliatory action, such as negative evaluations, that do not trigger the
continuing violation exception.”). These cases are consistent with the general principle that
“[t]he continuing violation doctrine only ‘allows the inclusion of action whose discriminatory
character was not apparent at the time they occurred,’ and ‘is not intended to allow employees a
second chance to bring stale claims once the statute of limitations has passed.’” Emmons, 715 F.
Supp. 2d at 412 (alteration omitted) (quoting Warren v. N. Shore Univ. Hosp. at Forest Hills,
No. 03-CV-19, 2006 WL 2844259, at *5 (E.D.N.Y. Sept. 29, 2006)); see also Oyelola v.
Hartford Fin. Servs. Grp., Inc., No. 13-CV-1685, 2014 WL 496880, at *9 (D. Conn. Feb. 5,
2014) (“[The plaintiff’s] allegations of being under-compensated, demoted, retaliated against,
forced to work excessive hours, and denied benefits all involve discrete acts of discrimination.”).
Courts are thus uniform in holding that disciplinary acts and negative evaluations, like
those alleged here, are “discrete acts of discrimination” that do not suffice to invoke the
continuing violation doctrine. Pietri, 936 F. Supp. 2d at 134. The Court thus has little trouble
concluding, as all other courts considering similar allegations have, that the allegations raised
here are not of the kind that warrant application of the continuing violation doctrine. See, e.g.,
Rogers v. Fashion Inst. of Tech., No. 14-CV-6420, 2016 WL 889590, at *1, *3–4 & n.5
(S.D.N.Y. Feb. 26, 2016) (holding that the continuing violation doctrine did not apply to

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allegations that the plaintiff was “subject[] to . . . various forms of inequitable treatment on the
basis of his race,” such as being “placed on probation” in “a manner inconsistent with [the
defendant’s] standard practice,” and noting that “courts have routinely found acts of the variety
that [the] [p]laintiff allege[d] . . . to be discrete”); Consoli v. St. Mary Home/Mercy Cmty.
Health, No. 13-CV-1791, 2014 WL 3849978, at *3 (D. Conn. Aug. 5, 2014) (holding that the
continuing violation doctrine did not apply to allegations that the plaintiff “was denied overtime
on the basis of her age, and that when she complained about her colleague’s age-related
comments, she was subjected to a series of false disciplines on the basis of her age and in
retaliation for her complaints”).4 That conclusion is reinforced by the fact that the time the
allegedly discriminatory acts took place, the “discriminatory character” of those acts was
undoubtedly “apparent” to Plaintiff. Emmons, 715 F. Supp. 2d at 412 (internal quotation marks
omitted).
In opposition, Plaintiff relies on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982),
wherein the Supreme Court found that the plaintiffs had timely stated claims under the Fair
Housing Act, even though many of the specific incidents of housing discrimination happened
outside of the statute of limitations, holding that “where a plaintiff, pursuant to the Fair Housing
Act, challenges not just one incident of conduct violative of the Act, but an unlawful practice that
continues into the limitations period, the complaint is timely when it is filed within 180 days of
the last asserted occurrence of that practice.” Id. at 380–81 (footnote omitted). Plaintiff’s
invocation of Havens is somewhat perplexing, however, as the Supreme Court made special note
that “a ‘continuing violation’ of the Fair Housing Act should be treated differently from one

4

To the extent Plaintiff suggests that his assignment in June 2013 to a unit in which an
inmate he had shot during an escape attempt was housed was a discriminatory act, Plaintiff has
not alleged that other officers were treated differently in this respect.
12

discrete act of discrimination.” Id. at 380. The Court thus distinguished claims for continuing
violations under the Fair Housing Act from “discrete act[s] of discrimination.” Plaintiff’s
citation to Havens thus begs the question of whether the allegations here are “discrete act[s] of
discrimination” that do not merit invocation of the continuing violation doctrine. In light of the
Supreme Court’s careful limitation on the scope of the holding, the Court does not see how
Havens supports Plaintiff’s claim here.
Plaintiff also cites to the Supreme Court’s statement in Morgan that “[h]ostile
environment claims are different in kind from discrete acts. Their very nature involves repeated
conduct.” 536 U.S. at 115. Plaintiff seems to conflate claims for disparate treatment and claims
for hostile work environment: these are two separate claims under Title VII. See Alfano v.
Costello, 294 F.3d 365, 373 (2d Cir. 2002). The continuing violation can apply to a claim for
disparate treatment, as the doctrine states that “if a Title VII plaintiff files an EEOC charge that
is timely as to any incident of discrimination in furtherance of an ongoing policy of
discrimination, all claims of acts of discrimination under that policy will be timely even if they
would be untimely standing alone.” Chin, 685 F.3d at 155–56. Separately, however, the
doctrine also applies to claims for hostile work environment because such claims do not involve
allegations of “incident[s] of discrimination in furtherance of an ongoing policy of
discrimination”; indeed, that was the very point made by the Supreme Court in Morgan, as
hostile work environment claims involve an unlawful employment practice that “occurs over a
series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment
may not be actionable on its own.” 536 U.S. at 115.5 Courts have recognized that hostile work

5

That is not to say, however, that when a plaintiff alleges a hostile environment claim,
the continuing violation doctrine serves to rope in every allegedly hostile act—the court must
“determine whether the acts about which an employee complains are part of the same actionable
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environment claims, and their timeliness, must be analyzed separately from claims for disparate
treatment. See, e.g., Rogers, 2016 WL 889590, at *4 (holding that the plaintiff’s claims for
disparate treatment were largely time-barred, but concluding that “[i]n any event, because [the]
[p]laintiff alleges that all these acts contributed to a single hostile work environment, the [c]ourt
will assess the viability of the hostile work environment claim using the full scope of conduct
alleged”); Sotomayor, 862 F. Supp. 2d at 250–51 (holding that the continuing violation doctrine
did not salvage a claim for discrimination arising out of “disciplinary letters . . . ; formal and
informal observations of [the] plaintiff . . . ; [and the] plaintiff’s assignments,” but separately
concluding that “[b]ecause some of the allegedly discriminatory conduct occurred after July 26,
2009, all of the discriminatory acts alleged may be considered timely for the purpose of [the]
plaintiff’s state law hostile work environment claim”); cf. Consoli, 2014 WL 3849978, at *3 n.5
(acknowledging that the Supreme Court has “held that hostile work environment claims were
different in kind from discrete retaliation or discrimination claims,” but declining to analyze the
claims under the hostile work environment standard because the “[p]laintiff’s counsel
acknowledged at oral argument that the [a]mended [c]omplaint makes no reference to a hostile
work environment claim”).
A plain reading of the Complaint, and of the bulk of Plaintiff’s brief in opposition,
suggests that Plaintiff’s claim is one for disparate treatment, that is, he was treated differently
from his non-minority coworkers and suffered adverse employment actions as a result. If
Plaintiff intended to also state a hostile work environment claim, he has fallen short in that effort.
To state a hostile work environment claim, a plaintiff must allege (1) “that the harassment was

hostile work environment practice.” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 76 (2d
Cir. 2010).
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‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment,’” and (2) “that a specific basis exists for imputing the
objectionable conduct to the employer.” Alfano, 294 F.3d at 373 (quoting Perry v. Ethan Allen,
Inc., 115 F.3d 143, 149 (2d Cir. 1997)). “The plaintiff must show that the workplace was so
severely permeated with discriminatory intimidation, ridicule, and insult that the terms and
conditions of her employment were thereby altered.” Id. A hostile work environment claim has
both an objective and a subjective element: “the misconduct shown must be severe or pervasive
enough to create an objectively hostile or abusive work environment, and the victim must also
subjectively perceive that environment to be abusive.” Feingold v. New York, 366 F.3d 138, 150
(2d Cir. 2004) (internal quotation marks omitted).
Plaintiff has not even attempted to plead the elements of a hostile work environment
claim. There is no allegation, for example, the Plaintiff perceived his work environment to be
“hostile” or “abusive.” Plaintiff’s belated invocation of the law governing hostile work
environment claims in his opposition papers, (see Pl.’s Opp’n 10), is thus insufficient to establish
the timeliness of his disparate treatment claims, see Ben-Levy v. Bloomberg L.P., No. 11-CV1554, 2012 WL 2477685, at *5 (S.D.N.Y. June 26, 2012) (“Here, [the] plaintiff alleges that [the]
defendants’ actions subjected him to a hostile work environment. However, this cannot save
[the] plaintiff’s claims from their respective statutes of limitations—‘the plaintiff cannot
piggyback the discrete adverse acts about which he complains onto hostile work environment in
order to make them actionable.’” (alteration omitted) (quoting Magadia v. Napolitano, No. 06CV-14386, 2009 WL 510739, at *17 (S.D.N.Y. Feb. 26, 2009)), aff’d, 518 F. App’x 17 (2d Cir.
2013). However, because Plaintiff has not yet amended his Complaint, and because he has

15

expressed an intent to state a hostile work environment claim, the Court will permit Plaintiff to
file an Amended Complaint setting forth a hostile work environment claim.
Defendants’ Motion is therefore granted with respect to Plaintiff’s claim for disparate
treatment for acts occurring prior to January 21, 2014. Plaintiff, however, will be given leave to
amend to include a claim for hostile work environment.
2. Retaliation Claim
Plaintiff argues in his opposition brief that he has pleaded “a viable claim for unlawful
retaliation” under Title VII. (See Pl.’s Opp’n 19.) In reply, Defendants argue that the
“Complaint contains no such claim.” (Reply Mem. of Law in Supp. of Defs.’ Mot. To Dismiss
Pursuant to F.R.C.P. 12(b)(6) 4 (Dkt. No. 27).) The Court agrees with Defendants.
To state a claim for unlawful retaliation under Title VII, a plaintiff must allege that “(1)
[]he engaged in a protected activity; (2) [his] employer was aware of this activity; (3) the
employer took adverse employment action against [him]; and (4) a causal connection exists
between the alleged adverse action and the protected activity.” Summa v. Hofstra Univ., 708
F.3d 115, 125 (2d Cir. 2013) (internal quotation marks omitted). Plaintiff’s only allegation that
could be construed as raising a claim for retaliation is his claim that “apart from these four sets of
charges and following [P]laintiff’s filing of this EEOC charge, [D]efendants served another
baseless set of charges upon [P]laintiff.” (Compl. ¶ 31(d).) Plaintiff has thus not alleged that
Defendants were aware of the EEOC charge or that a causal connection exists between the
alleged adverse action and the protected activity. The elements of a retaliation claim do not set a
high bar for plaintiffs, but the Court is not inclined to allow Plaintiff, who is represented by
counsel, to effectively amend his Complaint through his opposition papers. See CSX Transp.,
Inc. v. Emjay Envtl. Recycling, Ltd., No. 12-CV-1865, 2013 WL 1209116, at *2 (E.D.N.Y. Mar.

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25, 2013) (“[A party] cannot use its opposition brief to amend its allegation.”); 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). Without passing on their sufficiency, the Court
notes that Plaintiff included many more detailed allegations pertaining to Defendants’ alleged
retaliation in his supplemental charge to the EEOC. (See Weissman Decl. Ex. A.) Plaintiff will
therefore be given leave to amend his Complaint to include any allegations regarding retaliation
by Defendants.
3. Punitive Damages
Finally, Defendants move to dismiss any claim for punitive damages against the County
of Rockland on the ground that municipalities are immune from claims for punitive damages.
(See Defs.’ Mem. 7.) Plaintiff has not disputed this portion of Defendants’ Motion, and the law
is clear that municipal defendants, such as the County of Rockland, may not be held liable for
punitive damages under Title VII. See Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 254, 256–57
(2d Cir. 2005) (acknowledging the general rule that “no punitive damages are allowed [against
municipalities] unless expressly authorized by statute,” and noting that “government entities are
exempted from the punitive damages provision of Title VII” (internal quotation marks omitted));
see also 42 U.S.C. § 1981a(b)(1). Accordingly, to the extent Plaintiff seeks punitive damages
against the County of Rockland, that claim must be dismissed.

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III. Conclusion
For the foregoing reasons, Defendants ' Motion is granted with respect to those claims
related to acts occurring before January 21 , 2014. Plaintiffs claim for the disciplinary charge
propounded on April 14, 2014 is unaffected by this Order.6 Should Plaintiff wish to assert
claims for hostile work environment or retaliation, he may file an Amended Complaint within 30
days of the date of this Order, or alert the Court within 30 days that he does not intend to file an
Amended Complaint. The Clerk of Court is respectfully directed to terminate the pending
Motion. (See Dkt. No . 19.)
SO ORDERED .
DATED:

March~, 2017
White Plains, New York

6

Although Defendants initially moved to dismiss this claim as well, they withdrew that
request in their reply brief.

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