Dimps v. Taconic Correctional Facility

Filing 126

OPINION & ORDER re: 114 MOTION to Dismiss in part. filed by NYS Department of Corrections and Community Supervision., NYS Department of Corrections and Community Supervision answer due 4/24/2024. For the foregoing reasons, the De fendant's partial motion to dismiss is GRANTED and Plaintiff's claims of hostile work environment and retaliation brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. are dismissed with prejudice. Defen dants are directed to file an answer on or before April 24, 2024. The parties are also directed to submit a Case Management Plan (attached) on or before May 13, 2024. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 114. The Clerk of Court is further directed to mail a copy of this Opinion & Order to pro se Plaintiff at the address listed on ECF and to show service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 4/3/2024) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

4/03/2024

SHIRLEY DIMPS,
Plaintiff,

No. 17-CV-08806 (NSR)

-against-

OPINION & ORDER

NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION (DOCCS)
Defendant.
NELSON S. ROMÁN, United States District Judge:

Shirley Dimps (“Plaintiff”), proceeding pro se, asserts claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) alleging that the New York State
Department of Corrections and Community Supervision (“DOCCS”) racially discriminated and
unlawfully retaliated against Plaintiff, and created a hostile work environment. (See Second
Amended Complaint (“SAC”), ECF No. 96).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant moved to partially
dismiss the SAC (ECF No. 114). For the following reasons, Defendant’s Motion is GRANTED.
BACKGROUND
The following facts are drawn from Plaintiff’s SAC and are assumed as true for purposes
of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
I.

Facts
Plaintiff, who is African American, began working at Taconic Correctional Facility

(“Taconic”) in July 2005 and retired in 2020. (Id. at ¶¶ 1, 6, 109). Plaintiff started at Taconic

Correctional Facility (“Taconic”) as a Clerk 1, Grade 6. (Id. ¶ 6). Plaintiff “sought to be
promoted throughout” her tenure at Taconic, but alleges that, “[d]espite [her] work background,
college degree, and performance on the Civil Service Examinations, Taconic passed over [her],
blocked, and denied her promotional opportunities on numerous occasions.” (Id. at ¶¶ 14, 22).
Specifically, Plaintiff alleges that she was passed over for promotions awarded to “equally or
less-qualified candidates of other races.” (Id at ¶ 23). She also notes that she took and passed “at
least three Civil Service examinations between 2005 and 2016, seeking promotion
opportunities,” and “at one point was on four different Civil Service Eligible Lists,” used in
promotion decisions. (Id. at ¶¶ 18-19). Plaintiff asserts she was denied the following positions:
Office Assistant 2 (Store Mail), Office Assistant 2 (Calculations), Secretary 1, Agency Program
Aide at the Bedford Hills Correctional Facility, Office Assistant 3 (Provisional), and Offender
Rehabilitation Aide. 1 (Id. at ¶¶ 27-65, 67-95). In all but two instances, a white or South Asian
employee was selected over Plaintiff. (Id. at ¶¶ 37-39, 46-47, 54, 60). 2 Plaintiff also references a
“[q]uestionable appointment” but it is not clear from the SAC whether Plaintiff applied for the
position in question. (Id. ¶ 66).
Plaintiff also alleges that African Americans are not promoted at the same rate as white
and South Asian employees, with those latter two categories “fill[ing] most of the higher grade
positions.” (Id. ¶ 92). According to Plaintiff, “only one position of higher grade was filled by an
African American . . .” as of October 16, 2016, with the rest filled by white and South Asian
employees. (Id. ¶ 93). Moreover, of the sixteen employees promoted at Taconic between 2005

Plaintiff applied for the positions of Office Assistant 2 (Store/Mail), Secretary 1, and (Agency) Program Aide at
Bedford Hills Correctional Facility more than once. (SAC at ¶¶ 27-41, 57; 55-65, 88; 67, 89).
2
Plaintiff asserts she was not selected for an “Agency Program Aide” or “Program Aide” position at Bedford hills
Correctional Facility but does not assert the race of the individuals who did obtain those positions. (See SAC ¶¶ 6768, 89-95).
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and 2016, fourteen were of white or South Asian descent. (Id. ¶ 95). White and South Asian
employees were promoted despite lesser scores on the Civil Service examinations and without
seniority compared to African American employees. (Id. ¶ 105).
Plaintiff further asserts she was denied promotions for “about a decade.” (Id. ¶ 109). She
also states that co-workers would comment on her many applications for promotions and indicate
that the Albany DOCCS could prevent officers from receiving promotions. (Id. ¶ 106, 109).
Plaintiff also recounts three promotions received by a white employee who began working at
Taconic “one or at most two years prior to Plaintiff.” (Id. ¶¶ 96-103).
On August 3, 2016, Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). (Id. p.6, ¶ 25). On October 27, 2016, Plaintiff was
promoted to an Office Assistant 2 position at Taconic. (Id. at ¶ 75.). Plaintiff received a notice of
right to sue from the EEOC on August 21, 2017. (Id. at ¶ 25.)
PROCEDURAL HISTORY
Plaintiff initiated this action on November 13, 2017 against DOCCS, Taconic, the New
York State Department of Civil Service (NYSDCS), and the Civil Service Employees Association,
Inc. (“CSEA, Inc.”). (ECF. No. 1). The initial defendants filed their respective motions to dismiss,3
which the Court granted on March 20, 2019 (ECF No. 71). On February 5, 2020, the Second Circuit
Court of Appeals issued a Summary Order vacating the Court’s March 27, 2019 judgment to the
extent it denied Plaintiff leave replead her Title VII claims against DOCCS. See Dimps v. Taconic
Correctional Facility, 802 Fed. App’x 601 (2d Cir. 2020); (see also ECF No. 76). The Court

CSEA, Inc. filed a motion to dismiss on June 12, 2018 (ECF No. 22); DOCCS and Taconic filed a motion to
dismiss on September 10, 2018 (ECF No. 49); NYSDCS filed a motion to dismiss on September 10, 2018 (ECF No.
56).

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received the Plaintiff’s SAC on May 5, 2023 (ECF. No. 96). The parties submitted a fully briefed
motion to dismiss on November 13, 2023, consisting of: (1) Defendant’s (a) Motion to Dismiss in
part (ECF No. 114); (b) Memorandum of Law in Support of Motion to Dismiss (“Def. Mem”, ECF
No. 115); (c) Reply in Support of Motion to Dismiss (ECF No. 117); and (2) Plaintiff’s
Memorandum of Law in Opposition to Motion to Dismiss (ECF No. 116). Plaintiff also filed,
without the Court’s leave, a Sur-Reply in Opposition to the Defendant’s Motion to Dismiss on
November 27, 2023. (ECF No. 120).
LEGAL STANDARD
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). “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.” Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007).
In considering whether a complaint states a claim upon which relief can be granted, the court
“begins by identifying pleadings that, because they are no more than conclusions, are not entitled
to the assumption of truth.” Iqbal, 556 U.S. at 679. Where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has alleged, but
has not shown that the pleader is entitled to relief. Id.
However, pro se complaints are held to less stringent standards than those drafted by
lawyers. Thomas v. Westchester County, 2013 WL 3357171 (S.D.N.Y. July 3, 2013).
Furthermore, a pro se party’s pleadings should be read, “to raise the strongest arguments that
they suggest . . . .” Id. at 2 (quoting Kevilly v. New York, 410 Fed. App’x 371, 374 (2d Cir. 2010)
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(summary order) (internal quotations omitted). Regardless, recitals of the elements of a cause of
action with conclusory statements are not sufficient. Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010).
DISCUSSION
Plaintiff brings all of her claims under Title VII, alleging racial discrimination, the
creation of a hostile work environment, and unlawful retaliation. (SAC pp.3, 5). Defendant only
seeks to dismiss her retaliation and hostile work environment claims (Def. Mem, p.1).
A. Hostile Work Environment
To state a hostile work environment claim, Plaintiff must allege that Defendant’s conduct
(1) was “objectively severe or pervasive,” (2) created an environment that was “subjectively
perceived as hostile or abusive,” and (3) created such an environment “because of” the plaintiff’s
race. See Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F. Supp.3d 763, 780 (S.D.N.Y.
2019). To survive a motion to dismiss, a complaint alleging hostile work environment must
demonstrate: “(1) that the harassment was ‘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 v. Costello, 294
F.3d 365, 373 (2d. Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.
1997)). The analysis consists of objective and subjective prongs: “the misconduct 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.” Id. at 374 (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Additionally, for incidents to be deemed
pervasive, they must be “sufficiently continuous and concerted . . . .” Alfano, 294 F.3d at 374.
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“Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.” Id.
Finally, “whether a work environment is ‘hostile’ or ‘abusive’ can be determined by looking at
all the circumstances, which may include the frequency of the discriminatory conduct; its
severity; whether it is . . . threatening or humiliating. . . and whether it unreasonably interferes
with an employee’s work performance.” Harris, 510 U.S. at 23. A court may also consider,
among the totality of the circumstances, the conduct’s effect on the employee’s psychological
well-being. Id.
Plaintiff fails to state a hostile work environment claim. Plaintiff contends that the
Defendant created a hostile work environment by not promoting African Americans and
Hispanics, further nothing this failure was “severe and pervasive to change [P]laintiff’s career,
terms and conditions of [her] employment.” (SAC ¶ 108). Plaintiff further contends that
Taconic’s and DOCCS’s failure to promote Plaintiff and other African Americans “like they
would Caucasians and South Asian[-]descen[ded] racial groups due to race and color was severe
and/or pervasive to create a work environment that any A[frican] A[merican] and . . . Hispanics
would consider intimidating, hostile and . . . abusive.” (Id.) According to Plaintiff, the failure to
promote her led co-workers to comment, “[h]ow many times have you tried a promotion and did
not get it?” and “[i]f Albany [DOCCS office] doesn’t want you to get a promotion, then you’re
not going to get one.” (Id). First, it is not abundantly clear these comments, the only two
referenced in the SAC, are hostile in nature, as, notably, these comments do not contain any
overt racial component. Even construing them as such, two isolated comments do not meet an
objective “threshold of severity or pervasiveness.” Alfano, 294 F.3d at 374 (citing Brennan v.
Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 318 (2d Cir. 1999)). Further, Plaintiff makes no
claim as to how such comments unreasonably interfered with her work performance or how these
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comments affected her. While comments need not push her to a nervous breakdown, “[a]
discriminatorily abusive work environment, even one that does not seriously affect employees’
psychological well-being, can and often will detract from employees’ job performance,
discourage employees from remaining on the job, or keep them from advancing in their careers.”
Harris, 510 U.S. at 22. Here, Plaintiff makes no allegations that her performance suffered as a
result her these comments or her repeated denials of new positions.
Moreover, the Court agrees with Defendant that Plaintiff conflates the adverse
employment actions underpinning her racial discrimination claim with a hostile work
environment claim. (See Def. Mem. at pp.1, 8). Plaintiff’s primary contention seems to revolve
around her claims of racially disparate promotion practices. A racial discrimination claim cannot
be given the dress of a hostile work environment claim and survive a motion to dismiss. See
Singa v. Corizon Health, Inc., 17-cv-4482, 2018 WL 324884, at *3 (E.D.N.Y. Jan. 8, 2018)
(dismissing a hostile work environment claim as duplicative of the plaintiff’s disparate treatment
claim).
Consequently, Plaintiff’s hostile work environment claims must be dismissed.
B. Retaliation
“Title VII forbids an employer to retaliate against an employee for . . . complaining of
employment discrimination prohibited by Title VII . . . .” Kessler v. Westchester Cnty. Dep’t of
Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). At the motion to dismiss stage, “the allegations in
the complaint need only give plausible support to the reduced prima facie requirements that arise
under McDonnell Douglas in the initial phase of a Title VII litigation.” Duplan v. City of New
York, 888 F.3d 612, 625 (2d Cir. 2018). Under the McDonnell Douglas test, a plaintiff
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establishes a prima facie case of retaliation by alleging “(1) participation in a protected activity;
(2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a
causal connection between the protected activity and the adverse employment action. Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2005) (quoting McMenemy v. City of Rochester,
241 F.3d 279, 282–83 (2d Cir. 2001)).
Accordingly, for a retaliation claim to survive a motion to dismiss, the complaint must
plausibly allege that: (1) defendants took an adverse employment action against [her], (2)
‘because’ [s]he has opposed any unlawful employment practice.” Vega,, 801 F.3d at 90. “A
plaintiff’s burden at this prima facie stage is de minimis.” Kirkland-Hudson v. Mount Vernon
City School District, 665 F. Supp.3d 412, 459 (S.D.N.Y. 2023) (quoting Treglia v. Town of
Manlius, 313 F.3d 713, 719 (2d Cir. 2002)).
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.” Kirkland-Hudson, 665 F.Supp.3d at 459 (citation omitted). Accordingly, “an
action need not affect the terms and conditions of a plaintiff’s employment for purposes of a
retaliation claim.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 n.6 (2d Cir.
2010). 4
To sufficiently plead causation, a plaintiff must “plausibly allege that the retaliation was a
‘but-for’ cause of the employer’s adverse action.” Duplan, 888 F.3d at 625 (quoting Vega, 801
F.3d at 90-91). A plaintiff is not required to show that retaliation was the sole cause of the
employer’s action, “but only that the adverse action would not have occurred in the absence of

Though Fincher involves a claim brought under 42 U.S.C. § 1981, the analyses for both that statute and Title VII
are identical. See Fincher, 604 F.3d at 720.

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the retaliatory motive.” Id. It is possible for causation to be shown “by direct evidence of
retaliatory animus or inferred through temporal proximity to the protected activity.” Id.; See
Clark County School Dist. v. Breeden, 532 U.S. 268, 273–274 (2001).
For her retaliation claims, Plaintiff alleges that she was (1) “retaliated against from the
beginning of my employment . . . until the end of my employment,” and (2) then “after my
retirement” with “the issuing of a payroll check in 2021”; as well as (3) by “defendants . . .
telling me that [I] was hired to be a Switchboard Operator after [I] was hired, “despite
correspondence indicat[ing] that plaintiff was a Clerk 1; and (4) “Plaintiff was denied
promotions which expended to around or about decade.” (SAC at ¶ 109).
Defendant has correctly asserted that nowhere does Plaintiff allege that she engaged in
any form of protected activity or that anyone in management was aware of the protected activity.
(Def. Mem., p.6). Again, Plaintiff appears to be relying on elements of her racial discrimination
claim to underpin a separate retaliation cause of action. What’s more, each of her allegations are
plainly conclusory.
Taken most liberally, it appears Plaintiff argues that her multiple applications for advance
constitute a protected activity. Even assuming, arguendo, such applications constitute a protected
activity, Plaintiff’s claim fails. It cannot be that a mere application for a new post, if denied, rises
to the level of a retaliation claim. Plaintiff is required to show more to establish but-for
causation, failing to do so here.
Consequentially, the Plaintiff’s retaliation claims must be dismissed.

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CONCLUSION
For the foregoing reasons, the Defendant’s partial motion to dismiss is GRANTED and
Plaintiff’s claims of hostile work environment and retaliation brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. are dismissed with prejudice. Defendants are
directed to file an answer on or before April 24, 2024.
The parties are also directed to submit a Case Management Plan (attached) on or before
May 13, 2024.
The Clerk of Court is respectfully directed to terminate the motion at ECF No. 114. The
Clerk of Court is further directed to mail a copy of this Opinion & Order to pro se Plaintiff at the
address listed on ECF and to show service on the docket.
Dated:

April 3, 2024
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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