Whittle v. County of Sullivan et al
OPINION AND ORDER re: 23 MOTION to Dismiss filed by County of Sullivan, Joshua Potosek, Joseph Todora, Lynda Levine. For the reasons stated above, Defendants' motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motion. (Doc. 23.) Plaintiff has leave to replead to include facts rendering his disparate treatment theory plausible. The case will be closed if no Second Amended Complaint is submitted by November 22, 2017. (Amended Pleadings due by 11/22/2017.) (Signed by Judge Cathy Seibel on 11/8/2017) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
- against COUNTY OF SULLIVAN, JOSEPH TODORA, LYNDA
LEVINE and JOSHUA POTOSEK,
No. 16-CV-725 (CS)
Michael H. Sussman
Sussman & Associates
Goshen, New York
Counsel for Plaintiff
Drew, Davidoff & Edwards Offices, LLP
Monticello, New York
Counsel for Defendants
Before the Court is the motion to dismiss of Defendants County of Sullivan, Joseph
Todora, Lynda Levine, and Joshua Potosek. (Doc. 23.)
I accept as true the facts, but not the conclusions, set forth in Plaintiff’s First Amended
Complaint. (Doc. 20 (“AC”).)
Plaintiff, who is sixty-seven years old and African-American, worked at the County of
Sullivan (“County”) Department of Social Services (“DSS”) as a caseworker for twenty-four
years. (Id. ¶¶ 1, 2, 8.) At all relevant times, Defendant Joseph Todora was the County’s Acting
Commissioner of the DSS, Defendant Lynda Levine was the County’s Commissioner of
Personnel, and Defendant Joshua Potosek was the County Manager. (Id. ¶¶ 3-5.)
During his time at DSS, Plaintiff received strong performance reviews and no
disciplinary notices until March 13, 2015, at which time he received a “contrived counseling
memorandum.” (Id. ¶ 8.) On the morning of May 29, 2015, Plaintiff made a verbal request to
his acting supervisor, Rachel Innella, to use two hours of personal leave time at the end of that
day, which she approved. (Id. ¶¶ 9-10.) Plaintiff alleges that Innella was authorized to, and
frequently did, approve such requests. (Id. ¶ 11.) Sometime before 3:00 p.m., Innella’s
supervisor, Kathi Hitt, refused to sign a form “approving the already approved leave.” (Id.
¶¶ 12-13.) Hitt did not tell Plaintiff that he could not go on leave or that he would be punished if
he did, just that she would “dock him for the time he was taking leave.” (Id. ¶¶ 13, 15.) Plaintiff
alleges that County policy and practice did not require employees to justify a request for personal
leave; it was “liberally authorized and not unreasonably denied.” (Id. ¶ 16.)
Apparently in response to his taking the two-hour personal leave, Plaintiff was charged
with insubordination. (Id. ¶ 18.) Plaintiff alleges that each Defendant sustained that charge,
despite knowing that Plaintiff’s leave had been approved, that Hitt had not ordered Plaintiff to
remain in the office, and that Hitt allowed similarly situated Caucasian employees “to use
personal time in such circumstances without any negative consequence.” (Id. ¶ 19.)
On July 7, 2015, after Plaintiff’s union president Sandra Shaddock informed Todora that
Plaintiff had been subjected to “disparate and uncommon” treatment,1 Plaintiff’s union filed a
grievance against the County and accused it of violating the collective bargaining agreement.
(Id. ¶¶ 20-21.) Shaddock further stated, “There have been many occasion [sic] where people
The AC does not allege that Shaddock suggested to Todora that Plaintiff was being subjected to disparate
treatment on account of his race.
have left the office, leaving no one on site – and just about every employee on the second floor
would attest to that. I have not been a party of any negotiation which would have made any
requirement for people to be in the office – or any sort of a schedule for who is in the field.” (Id.
¶ 22.) Levine denied the union’s “Step 2” grievance on August 3, 2015. (Id. ¶ 23.)2
On August 15, 2015, the County amended its charges against Plaintiff, adding seventeen
new charges. (Id. ¶ 24.)3 On August 20, 2015, Potosek denied Plaintiff’s “step III” grievance,
finding that “the needs of the department provided a reasonable basis for the denial of the
personal time [P]laintiff sought and was approved for on May 29, 2015.” (Id. ¶ 25.) In October
2015, Plaintiff’s union reiterated its demand for factual evidence substantiating Potosek’s
finding. (Id. ¶ 27.) In so doing, Shaddock wrote Potosek that “[t]he County has thus far failed to
demonstrate that ALL workers were in the field as alleged. The union has witnesses to the
contrary – and there should be proof in the form of case notes or mileage vouchers, etc. which
would provide [sic] if this was the case.” (Id. ¶ 28.) Plaintiff alleges that “[n]o such proof was
ever provided” and that Defendants knew Hitt subjected him to treatment inferior to that of
similarly situated white employees, (id. ¶ 29), although he does not state how they knew that.
“In tandem with denying” Plaintiff’s grievance, Todora, with the approval of Potosek and
Levine, continued to pursue disciplinary charges against Plaintiff and sought his dismissal. (Id.
¶ 26.) After June 2, 2015, Potosek and Todora “maintained [P]laintiff out of work.” (Id. ¶ 30.)4
Plaintiff refers to the “Step 2” grievance in his AC, (id.), but does not explain this term.
Plaintiff alleges that the County “amended its initial section 75 charges” – presumably referring to New York Civil
Service Law Section 75 – but does not articulate what the “initial section 75 charges” were. From context, I assume
he is referring to the “insubordination” charge referenced in paragraphs eighteen and nineteen of the AC. Plaintiff
does not describe the additional seventeen charges.
It is unclear whether “maintained” means that Plaintiff had been suspended prior to June 2, 2015.
On November 4, 2015, the County withdrew the additional seventeen charges. (Id. ¶ 32.)
After three days of hearings on unknown dates, “the [C]ounty’s hand-picked hearing officer”
sustained a single charge of insubordination against Plaintiff and recommended termination. (Id.
¶ 33.) On February 5, 2016, acting on behalf of the County, Todora terminated Plaintiff’s
employment. (Id. ¶ 34.) In March 2016, Plaintiff’s union appealed this decision, challenging
Plaintiff’s termination and the County’s findings of guilt regarding Plaintiff’s alleged
insubordination. (Id. ¶ 35.) Levine upheld the findings and Plaintiff’s termination “in
conclusory fashion” on May 24, 2016. (Id. ¶ 36.) Potosek later also upheld the termination. (Id.
¶ 37.) Both Levine and Potosek had been advised that Plaintiff’s leave had been approved and
that there was no factual basis for rescinding it, either because someone else from Plaintiff’s unit
was at the workplace while Plaintiff took his leave or because there was no requirement that
someone be there. (Id. ¶¶ 35, 37.)
Plaintiff alleges that similarly situated Caucasian employees (1) were “permitted to take
personal leave without question and without reference to supposed departmental needs,” (id.
¶ 38); (2) did not have a second supervisor reconsider a grant of leave, (id. ¶ 39); and (3) were
not terminated after their first disciplinary charge, (id. ¶ 40). Plaintiff further alleges that
Defendants “ratified and condoned [Hitt’s] disparate treatment of [P]laintiff and [did not]
intervene to overrule the discipline.” (Id. ¶ 42.)
Plaintiff submitted a claim of discrimination to the Equal Employment Opportunity
Commission (“EEOC”) on June 27, 2016. (Id. ¶ 6; Doc. 30 (“Whittle Aff.”) Ex. 1.) In it,
Plaintiff claimed that “there was presumptive discrimination in one or many factors.” (Whittle
Aff. Ex. 1 at 2.) He stated that, “I am a Jamaican native of African origin 67 years old and have
questioned certain practices by the Sullivan County Department of Family Services.” (Id.)
Plaintiff received a Notice of Right to Sue on November 21, 2016. (Id. Ex. 3 at 2.) The Notice
did not specify the basis for discrimination that the EEOC investigated. (See id.)
Plaintiff filed this action on January 31, 2017. (Doc. 1.) On March 16, 2017, Defendants
filed a letter requesting a pre-motion conference. (Doc. 17.) Plaintiff filed a response on March
20, 2017, (Doc. 19), and the parties appeared for a pre-motion conference on April 12, 2017 to
discuss the instant motion, (Minute Entry dated Apr. 12, 2017). Plaintiff filed his AC on April
18, 2017, (Doc. 20), bringing claims alleging race discrimination under Title VII of the Civil
Rights Act of 1964 (“Title VII”) against the County and under the Equal Protection Clause of the
Fourteenth Amendment, enforced through 42 U.S.C. § 1983, against the individual Defendants,
(id. ¶¶ 46-47).
Defendants filed the instant motion to dismiss on June 30, 2017. (Doc. 23.) They argue
that Plaintiff failed to (1) exhaust his administrative remedies because his EEOC charge alleged
discrimination on the basis of national origin, not race, (2) state a claim for disparate treatment
under Title VII and the Fourteenth Amendment because he did not plausibly plead similarly
situated comparators who were treated differently, and (3) allege the personal involvement of
Potosek. (See Doc. 25 (“Ds’ Mem.”).) Plaintiff responds that his letter to the EEOC reporting
discrimination referenced race, that he has sufficiently pleaded similarly situated Caucasian
comparators who engaged in similar behavior and were not treated as harshly, and that he has
properly pleaded Potosek’s personal involvement. (See Doc. 29 (“P’s Opp.”).)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, 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.” Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks
omitted). While Federal Rule of Civil Procedure 8 “marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.
In considering whether a complaint states a claim upon which relief can be granted, the
court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth,” and then determines whether the remaining well-pleaded
factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679.
Deciding whether a complaint states a plausible claim for relief is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id.
“[W]here 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 ‘shown’ – ‘that the pleader is entitled to
relief.’” Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).
Documents Properly Considered
When deciding a motion to dismiss, a court is entitled to consider:
(1) facts alleged in the complaint and documents attached to it or incorporated in it
by reference, (2) documents “integral” to the complaint and relied upon in it, even
if not attached or incorporated by reference, (3) documents or information
contained in defendant’s motion papers if plaintiff has knowledge or possession of
the material and relied on it in framing the complaint . . . , and (5) facts of which
judicial notice may properly be taken under Rule 201 of the Federal Rules of
Weiss v. Inc. Vill. of Sag Harbor, 762 F. Supp. 2d 560, 567 (E.D.N.Y. 2011) (internal quotation
marks omitted). To be incorporated by reference, the complaint must make “a clear, definite and
substantial reference to the documents.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60
(S.D.N.Y. 2010) (internal quotation marks omitted). “A document is integral to the complaint
where the complaint relies heavily upon its terms and effect. Merely mentioning a document in
the complaint will not satisfy this standard; indeed, even offering limited quotation[s] from the
document is not enough.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (alteration in
original) (citation and internal quotation marks omitted).
Both Plaintiff and Defendants have attached documents to their motion papers. Plaintiff
attached three exhibits: (1) his letter to the EEOC reporting discrimination dated June 27, 2016,
(2) a letter from the EEOC to Plaintiff dated October 27, 2016, and (3) a letter from the EEOC to
Plaintiff dated November 21, 2016 with the accompanying Notice of Right to Sue of the same
date. (Whittle Aff. Exs. 1-3.) Defendants attached seven exhibits to the affidavit of their
counsel, (Doc. 24 (“Davidoff Aff.”)): (1) Plaintiff’s Amended Complaint, (id. Ex. A), (2) a
Notice of Charge of Discrimination sent to the Sullivan County Department of Family Services,
dated October 21, 2016, (id. Ex. B), (3) the Notice of Right to Sue, (id. Ex. C), (4) the Civil
Service Law Section 75 Notice and Statement of Charges sent to Plaintiff, dated June 2, 2015,
(id. Ex. D), (5) the hearing officer’s findings and recommendations, dated February 5, 2016,
following the Civil Service Law Section 75 hearing, (id. Ex. E), (6) a letter from Todora to
Plaintiff regarding the hearing officer’s determination, dated February 5, 2016, (id. Ex. F), and
(7) Plaintiff’s notice of determination by a personnel officer on appeal filed pursuant to Section
76 of the Civil Service law, dated May 24, 2016, (id. Ex. G).
I may consider Plaintiff’s June 27, 2016 letter to the EEOC reporting discrimination,
(Whittle Aff. Ex. 1), and the Notice of Right to Sue, (id. Ex. 3 at 2; Davidoff Aff. Ex. C),
because they are incorporated into the AC by reference. (See AC ¶ 6.) I may not consider the
remaining documents, (Whittle Aff. Ex. 2; id. Ex. 3 at 1; Davidoff Aff. Exs. B, D-G), as none are
integral to the AC, nor are they referenced therein. Specifically, the October 21, 2016 notice of
charge of discrimination sent to the County, (Davidoff Aff. Ex. B), is not referenced in the AC
and Plaintiff claims he did not receive it, (P’s Opp. at 3). See Green v. City of Mount Vernon, 96
F. Supp. 3d 263, 284 (S.D.N.Y. 2015) (declining to consider documents of which there was no
evidence that Plaintiff had notice). That it is the only form the County received does not make it
appropriate for consideration on a motion to dismiss. Moreover, while the AC mentions the
amended Section 75 charges in which the County added seventeen charges, (id. ¶ 24), it does not
incorporate by reference the original Section 75 charge, which is seemingly what is attached as
Exhibit D to the Davidoff Affidavit. Similarly, Plaintiff references general decisions to sustain a
charge of insubordination in his AC, (id. ¶¶ 33, 36), but he does not make reference to the
specific documents attached as Exhibits E through G to the Davidoff Affidavit. Even if
Plaintiff’s references to these documents were more explicit, “[m]erely mentioning a document
in the complaint” is not enough to consider them on a motion to dismiss. Goel, 820 F.3d at 559.
Exhaustion of Administrative Remedies
Defendants argue that Plaintiff failed to exhaust his administrative remedies because
Plaintiff’s EEOC charge did not allege discrimination on the basis of race, only national origin.
(Ds’ Mem. at 7-9.) Plaintiff responds that he properly referenced race discrimination because his
letter to the EEOC stated that he is “a Jamaican native of African origin.” (P’s Opp. at 3-4;
Whittle Aff. Ex. 1 at 2.) Moreover, Plaintiff claims that the document on which Defendants base
their argument – the notice of charge of discrimination sent by the EEOC to the County – was
never sent to him and that the EEOC’s formulation of Plaintiff’s complaint was incorrect.
(P’s Opp. at 3.) Defendants argue in their reply brief that there is “no assertion in [Plaintiff’s]
letter, either directly or indirectly, of any claim of race discrimination.” (Doc. 27 at 1.)
Before a plaintiff may bring a suit in federal court, he must exhaust his administrative
remedies by filing his claims with the EEOC or a similar state agency. McGullam v. Cedar
Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010). “Claims not raised in an EEOC complaint,
however, may be brought in federal court if they are ‘reasonably related’ to the claim filed with
the agency.” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006).
A common sense reading of Plaintiff’s letter to the EEOC suggests that Plaintiff was
referring to both his national origin and race. In that letter, Plaintiff stated that he is “a Jamaican
native of African origin.” (Whittle Aff. Ex. 1 at 2.) Plaintiff seemingly first refers to his national
origin by stating that he is a “Jamaican native,” and then to his race when he states that he is of
“African origin.” While this phraseology could be interpreted to mean that Plaintiff was
referring to two national origins – Jamaican and African – the more logical reading is that
Plaintiff was born in Jamaica but his ancestors were African, referring to his race.
Even if the letter was not referring to Plaintiff’s race, his race discrimination claim is
reasonably related to his national origin discrimination claim.
A claim is considered reasonably related if the conduct complained of would fall
within the scope of the EEOC investigation which can reasonably be expected to
grow out of the charge that was made. In this inquiry, the focus should be on the
factual allegations made in the EEOC charge itself, describing the discriminatory
conduct about which a plaintiff is grieving. The central question is whether the
complaint filed with the EEOC gave that agency adequate notice to investigate
discrimination on both bases. The “reasonably related” exception to the exhaustion
requirement is essentially an allowance of loose pleading and is based on the
recognition that EEOC charges frequently are filled out by employees without the
benefit of counsel and that their primary purpose is to alert the EEOC to the
discrimination that a plaintiff claims he is suffering.
Williams, 458 F.3d at 70 (alterations, citations, and internal quotation marks omitted); see
Carlson v. Geneva City Sch. Dist., 679 F. Supp. 2d 355, 378 (W.D.N.Y. 2010) (claim is
reasonably related when it would fall “within the reasonably expected scope of an EEOC
investigation of the charges of discrimination”) (internal quotation marks omitted).
Defendants point to Williams v. City of New York, No. 04-CV-1993, 2005 WL 839103, at
*8 (S.D.N.Y. Apr. 12, 2005), which precluded a claim for race discrimination where the plaintiff
only raised the issue of gender discrimination with the EEOC. (Ds’ Mem. at 8-9.) But there is
no relationship between gender and race, while there may be and often is between national origin
[B]ecause racial categories may overlap significantly with nationality or ethnicity,
the line between discrimination on account of race and discrimination on account
of national origin may be so thin as to be indiscernible, or at least sufficiently
blurred so that courts may infer that both types of discrimination would fall within
the reasonable scope of the ensuing EEOC investigation for exhaustion purposes.
Deravin v. Kerik, 335 F.3d 195, 202 (2d Cir. 2003) (citation and internal quotation marks
omitted). Thus, “[c]ourts have held that claims of race discrimination would fall within the
scope of the EEOC’s investigation of a claim of national origin discrimination in an EEOC
charge.” Sharabura v. Taylor, No. 03-CV-1866, 2003 WL 22170601, at *3 (E.D.N.Y. Sept. 16,
For example, in Dixit v. City of New York Department of General Services, 972 F. Supp.
730 (S.D.N.Y. 1997), the Court held that the plaintiff’s assertion that she was “Asian Indian”
could be considered “a characterization of both race and national origin, since it denotes
someone with Asian racial characteristics whose ethnic background is Indian.” Id. at 735.
Similarly here, even if Plaintiff’s reference to his “African origin” was meant to connote only his
national origin, Plaintiff’s race – African-American, (AC ¶ 1) – is “correlated with [his] national
origin because of certain historical or demographic facts.” Dennis v. Pan Am. World Airways,
Inc., 746 F. Supp. 288, 291 (E.D.N.Y. 1990). Thus, by referencing his “African origin,” the
EEOC would have received “adequate notice to investigate discrimination” both on the basis of
national origin and race. Deravin, 335 F.3d at 202.5 Plaintiff has therefore exhausted his
Similarly Situated Comparators
Defendants next argue that even if Plaintiff has exhausted his administrative remedies, he
has failed to point to similarly situated comparators necessary to raise an inference of
discrimination for his Title VII and Equal Protection claims. (Ds’ Mem. at 10-14.)
“[I]n an employment discrimination case, a plaintiff must plausibly allege that (1) the
employer took adverse action against him and (2) his race, color, religion, sex, or national origin
Even if I could consider the notice of charge of discrimination the EEOC sent to the County, which checks the
boxes only for discrimination on the basis of national origin and age, it would not change my conclusion. Courts
have found a race claim to be reasonably related even where the plaintiff, in a form sent to the EEOC, explicitly
checked the box for national origin but not race. See, e.g., Dixit, 972 F. Supp. at 734-35. Here the EEOC, not
Plaintiff, prepared the charge of discrimination sent to the County. That the EEOC employee who completed the
form may have perceived the claim to be one for national origin does not mean that exploration of race would not
reasonably be expected to arise from reference to African origin as well as Jamaican nationality. Defendants have
pointed to no authority for the proposition that an EEOC employee’s understanding of a submitted claim is
dispositive on the issue of whether the claims are reasonably related.
was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72, 86 (2d Cir. 2015). “[H]e need only plausibly allege facts that provide at least
minimal support for the proposition that the employer was motivated by discriminatory intent.”
Id. at 86-87 (internal quotation marks omitted). There is no dispute that Plaintiff’s termination is
an adverse action.6
Plaintiff can raise an inference of discrimination “by showing that the employer subjected
him to disparate treatment, that is, treated him less favorably than a similarly situated employee
outside his protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citing
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). “At the pleading stage,
allegations that the plaintiff and comparators worked in the same group and were accountable to
the same supervisors, but were subjected to disparate treatment may be sufficient to raise an
inference of discrimination.” Pothen v. Stony Brook Univ., 211 F. Supp. 3d 486, 495 (E.D.N.Y.
2016). While a plaintiff “need only give plausible support to a minimal inference of
discriminatory motivation,” Littlejohn v. City of N.Y., 795 F.3d 297 (2d Cir. 2015), “a Title VII
plaintiff must still identify at least one comparator to support a minimal inference of
discrimination; otherwise the motion to dismiss stage would be too easy to bypass,” Goodine v.
Suffolk Cty. Water Auth., No. 14-CV-4514, 2017 WL 1232504, at *4 (E.D.N.Y. Mar. 31, 2017).
Identification of a “generic class of [similarly situated] white . . . employees” that allegedly
received better treatment” is “insufficient even at the pleadings stage.” Id.; see Henry v. N.Y.C.
Health & Hosp. Corp., 18 F. Supp. 3d 396, 408 (S.D.N.Y. 2014) (“Without factual
amplification, the generic allegation of disparate treatment related to an unspecified class of
Denial of two hours of personal leave does not amount to an adverse employment action. See Allen v. A.R.E.B.A.
Casriel, Inc., No. 15-CV-9965, 2017 WL 4046127, at *13 (S.D.N.Y. Sept. 12, 2017); Todoverto v. McDonald, No.
13-CV-4922, 2016 WL 3826281, at *12 (S.D.N.Y. July 7, 2016).
Caucasian persons is simply not sufficient to ‘nudge . . . claims across the line from conceivable
to plausible,’ and thus is insufficient to support [a] racial discrimination claim.”) (quoting
Twombly, 550 U.S. at 570); Yan v. Ziba Mode Inc., No. 15-CV-47, 2016 WL 1276456, at *5
(S.D.N.Y. Mar. 29, 2016) (no inference of discrimination where plaintiff “fail[ed] to plead any
facts regarding how the employees’ identities, experience levels, and conduct compared to
Plaintiff’s”); T.P. ex rel. Patterson v. Elmsford Union Free Sch. Dist., No. 11-CV-5133, 2012
WL 860367, at *6 (S.D.N.Y. Feb. 27, 2012) (“[T]o withstand a motion to dismiss, a plaintiff
must allege specific examples of others similarly situated who were treated more favorably.”).
Plaintiff has not provided sufficient information about his own situation or that of his
comparators. Plaintiff alleges that on May 29, 2015, his request for leave was approved by one
supervisor and then he was told by the next-level supervisor that she did not approve and that he
would be docked for the time. But he provides little detail about the insubordination charges
themselves, the purpose of the “counseling memorandum” he received on March 13, 2015 or
how it related to his firing, or his disciplinary history.
Likewise, although Plaintiff in his brief points to nine paragraphs in which he purports to
identify similarly situated comparators who were treated differently than he was, (P’s Opp. at 5-7
(citing AC ¶¶ 14, 17, 19, 22, 27-29, 35, 38)), none of these paragraphs provide sufficient facts to
render his conclusions plausible. Taken as a whole, these paragraphs allege that similarly
situated Caucasian employees (1) were “permitted to take personal leave without question and
without reference to supposed department needs,” (id. ¶ 38; see id. ¶¶ 14, 18, 19); (2) were not
required to receive a second supervisor’s approval to take personal leave, (id. ¶ 39); and (3) were
not terminated after their first disciplinary charge, (id. ¶ 40; see id. ¶ 29). The first two
categories do not relate to the relevant adverse employment action and while the third category is
relevant, nowhere in the AC does Plaintiff provide details regarding these alleged similarly
situated Caucasian employees, “e.g., who they are, what their positions or responsibilities were at
[the County], how their conduct compared to [P]laintiffs’ or how they were treated differently by
defendants.” Blige v. City Univ. of N.Y., No. 15-CV-8873, 2017 WL 498580, at *9 (S.D.N.Y.
Jan. 19, 2017) (internal quotation marks omitted), adopted by, 2017 WL 1064716 (S.D.N.Y.
Mar. 21, 2017)); see Dixon v. Office of N.Y.S. Comptroller, No. 16-CV-1184, 2017 WL 4357461,
at *10 (N.D.N.Y. Sept. 29, 2017) (allegations that plaintiff was treated less favorably than other
Caucasian employees insufficient to raise inference of discrimination on motion to dismiss).
Specifically, Plaintiff fails to provide facts as to which colleagues committed similar acts
but were not fired, what those acts were, to whom those employees reported, what their
responsibilities were, and how their disciplinary histories compared to his. “Such allegations are
necessary to render plausible the inference that Plaintiff’s [race], rather than any number of other
considerations, played a role” in Plaintiff’s termination. Mesias v. Cravath, Swaine & Moore
LLP, 106 F. Supp. 3d 431, 437 (S.D.N.Y. 2015) (requiring information regarding plaintiff’s
colleagues’ departments, job responsibilities and supervisors). Without such facts, and without
any other evidence of discriminatory intent (such as racially-charged remarks), Plaintiff has not
raised even a minimal inference that the employer was motivated by racial animus.
Plaintiff argues in his brief that the AC refers to “white employees who held the same
position as he did in the same unit under Hitt and were subject to the same rules and policies as
he was,” and that “Hitt was denying [P]laintiff’s previously approved leave on a ground which
she had not previously invoked and which was never the subject of any negotiation.” (P’s Opp.
at 6.) Not only are none of these facts pleaded in the AC,7 but they relate to the denial of leave,
Plaintiff may not amend his AC in an opposition brief. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d
not the termination. Plaintiff states in conclusory fashion that all “defendants . . . treated
[P]laintiff differently than similarly situated white employees who had spotless records for
several decades and were not terminated upon their first disciplinary charge,” (AC ¶ 40), but
provides no facts about any such other employees that would render that conclusion plausible.
Plaintiff’s decision to omit specifics means that he cannot plausibly allege “a reasonably close
resemblance of the facts and circumstances” or “an objectively identifiable basis for
comparability,” Graham, 230 F.3d at 40 (internal quotation marks omitted), with his alleged
similarly situated comparators.
Plaintiff has not alleged enough facts to “nudge [his] claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570. Accordingly, Plaintiff’s claims under
Title VII and the Equal Protection Clause for disparate treatment are dismissed. As further
discussed below, however, because I am granting Plaintiff one final opportunity to amend his
claims, I will briefly address the issue of whether Plaintiff has pleaded Potosek’s personal
Potosek’s Personal Involvement
Defendants argue that Plaintiff fails to allege the personal involvement of Potosek as
required by § 1983. (Ds’ Mem. at 15-17.) “[A] tangible connection between the acts of a
defendant and the injuries suffered” must be alleged by a plaintiff asserting a Section 1983 claim.
Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Therefore, “personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004)
(internal quotation marks omitted).
The personal involvement of a supervisory defendant may be shown by evidence
that: (1) the defendant participated directly in the alleged constitutional violation,
(2) the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994).
After Iqbal, however, courts within this Circuit have split into two camps, some holding
that all five Colon categories can still suffice to hold an individual liable for a constitutional
deprivation under § 1983 under a supervisory theory, depending on the underlying constitutional
claim, and others holding that only the first and part of the third categories meet the plausibility
standard. Compare, e.g., Delgado v. Bezio, No. 09-CV-6899, 2011WL 1842294, at *9
(S.D.N.Y. May 9, 2011) (holding that “where the claim does not require a showing of
discriminatory intent, the Colon analysis should still apply, insofar as it is consistent with the
particular constitutional provision alleged to have been violated”) (internal quotation marks
omitted), and Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009) (“Where the
constitutional claim does not require a showing of discriminatory intent, but instead relies on the
unreasonable conduct or deliberate indifference standards of the Fourth and Eighth Amendments,
the personal involvement analysis set forth in Colon v. Coughlin may still apply.”), with Bellamy
v. Mt. Vernon Hosp., No. 07-CV-1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009)
(“Only the first and part of the third Colon categories pass Iqbal’s muster – a supervisor is only
held liable if that supervisor participates directly in the alleged constitutional violation or if that
supervisor creates a policy or custom under which unconstitutional practices occurred.”), and
Young v. State of N.Y. Office of Mental Retardation & Developmental Disabilities, 649 F. Supp.
2d 282, 294 (S.D.N.Y. 2009) (same). I need not delve into this issue in light of my disposition
Plaintiff argues that Potosek was the final decision-maker and points to several
paragraphs in which Potosek is implicated. (P’s Opp. at 8-10.) While “final decision-maker” is
not one of the Colon categories, Plaintiff has provided sufficient facts plausibly alleging
Potosek’s personal involvement. The AC alleges that: (1) “Potosek was the County Manager
and terminated [P]laintiff’s employment,” (id. ¶ 5); (2) “Potosek ignored the . . . information
provided by the union . . . and denied its step III grievance,” (id. ¶ 25); (3) Shaddock wrote
Potosek regarding Plaintiff’s insubordination charges, (id. ¶ 28); (4) “Potosek and Todora
maintained [P]laintiff out of work,” (id. ¶ 30); and (5) Potosek upheld Plaintiff’s termination, (id.
¶ 37). While Shaddock’s communication to Potosek does not speak to any action by Potosek,
and while the denial of the union grievance did not result in Plaintiff’s termination, the first,
fourth, and fifth allegations indicate that Potosek played some direct role in sustaining Plaintiff’s
insubordination charge and approving his termination, satisfying the first Colon theory. See
Brooking v. N.Y.S. Dep’t of Taxation & Fin., No. 15-CV-510, 2016 WL 3661409, at *14
(N.D.N.Y. July 5, 2016) (personal involvement plausibly alleged where individual defendant
“was involved in the decision to terminate the plaintiff”).8
LEAVE TO AMEND
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). It is “within the sound discretion of the district court to grant or deny leave to
If Plaintiff amends and that complaint survives a motion to dismiss, but discovery reveals that Potosek’s
“termination” of Plaintiff was a “rubber stamp” of a subordinate’s decision, or that Potosek was not involved in
Plaintiff’s termination at all, as Defendants suggest, (Doc. 27 at 7), and as documents I cannot yet consider seem to
indicate, (Davidoff Aff. Exs. F-G), Potosek will be dismissed. See Scott v. Frederick, No. 13-CV-605, 2015 WL
127864, at *17 (N.D.N.Y. Jan. 8, 2015) (“the mere rubber-stamping of a disciplinary determination is insufficient to
plausibly allege personal involvement”); Brown v. Brun, No. 10-CV-397, 2010 WL 5072125, at *2 (W.D.N.Y. Dec.
7, 2010) (same) (collecting cases).
amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “Leave to
amend, though liberally granted, may properly be denied for: ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc.’” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)).
Plaintiff has already amended once, (Doc. 20), after having the benefit of a pre-motion
letter from Defendants outlining their proposed grounds for dismissal, (Doc. 17), and my
observations during the April 12, 2017 conference. Plaintiff’s failure to fix deficiencies in the
previous pleading, after being provided notice of them, is alone sufficient ground to deny leave
to amend sua sponte. See In re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242
(S.D.N.Y. 2005) (denying leave to amend because “the plaintiffs have had two opportunities to
cure the defects in their complaints, including a procedure through which the plaintiffs were
provided notice of defects in the Consolidated Amended Complaint by the defendants and given
a chance to amend their Consolidated Amended Complaint,” and “plaintiffs have not submitted a
proposed amended complaint that would cure these pleading defects”), aff’d sub nom. Bellikoff v.
Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (“[P]laintiffs were not entitled to an
advisory opinion from the Court informing them of the deficiencies in the complaint and then an
opportunity to cure those deficiencies.”) (internal quotation marks omitted); Payne v.
Malemathew, No. 09-CV-1634, 2011 WL 3043920, at *5 (S.D.N.Y. July 22, 2011) (“That
Plaintiff was provided notice of his pleading deficiencies and the opportunity to cure them is
sufficient ground to deny leave to amend sua sponte.”).
Further, Plaintiff has not asked to amend again or provided facts that would cure the
deficiencies outlined in this Opinion and Order. But where, as here, some of a complaint’s
“defects are potentially curable,” Zucker v. Five Towns Coll., No. 09-CV-4884, 2010 WL
3310698, at *3 (E.D.N.Y. Aug. 18, 2010), a court may exercise its discretion to grant leave to
amend, McCarthy, 482 F.3d at 200. Although I need not, I will do so here. I caution Plaintiff
that any Second Amended Complaint should contain more factual detail concerning the similarly
situated Caucasian employees who were allegedly treated better than Plaintiff, including
information regarding their positions, supervision and disciplinary history, and the circumstances
surrounding their terminations. Plaintiff must also clarify the facts regarding his own discipline
and termination so that the Court may determine if comparison of Plaintiff’s situation to that of
potential similarly situated employees gives rise to a minimal inference of discrimination.
For the reasons stated above, Defendants’ motion to dismiss is GRANTED. The Clerk of
Court is respectfully directed to terminate the pending motion. (Doc. 23.) Plaintiff has leave to
replead to include facts rendering his disparate treatment theory plausible. The case will be
closed if no Second Amended Complaint is submitted by November 22, 2017.
Dated: November 8, 2017
White Plains, New York
CATHY SEIBEL, U.S.D.J.
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