Reyes v. The Village of Spring Valley
OPINION & ORDER re: 15 MOTION to Dismiss . filed by The Village of Spring Valley. For the foregoing reasons, Defendant's motion to dismiss is DENIED. Defendant is directed to file an Answer to the Complaint on or before Septem ber 29, 2021. The parties are directed to file a Case Management Plan and Scheduling Order on or before October 13, 2021 (template attached). The Clerk of the Court is respectfully directed to terminate Defendant's Motion to Dismiss at ECF No. 15. (The Village of Spring Valley answer due 9/29/2021.) (Signed by Judge Nelson Stephen Roman on 9/7/2021) (rro)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
No. 20-cv-1883 (NSR)
OPINION & ORDER
-againstTHE VILLAGE OF SPRING VALLEY,
NELSON S. ROMÁN, United States District Judge:
Plaintiff Victor Reyes (“Plaintiff”) commenced this action, pursuant to Title VII of the
Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e, et seq., (“Title VII”), by the filing of
his Complaint on March 1, 2020. (See Complaint (“Compl.”) (ECF No. 1).) Plaintiff asserts that
Defendant, the Village of Spring Valley (“Defendant” or the “Village”), his former employer,
violated Title VII by terminating him in retaliation for his complaint to it that a nonparty male
coworker violated Title VII and sexual harassed—i.e., threatened to anally rape—a female
nonparty coworker. (See id.) Presently before the Court is the motion of Defendant to dismiss the
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). (ECF No. 15.) Defendant
submitted a memorandum of law in support of its motion. (Memorandum of Law in Support of
Defendant’s Motion to Dismiss (“Def’s Mem.”) (ECF No. 15-3).) Plaintiff opposed Defendant’s
motion. (Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Dismiss (“Pl’s
Opp.”) (ECF No. 16-1).) Finally, Defendant submitted a memorandum in further support of its
motion. (Memorandum of Law in Further Support of Defendant’s Motion to Dismiss (“Def’s
Reply”) (ECF No. 17).) For the following reasons, Defendant’s motion is DENIED.
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The following facts are derived from the Complaint or matters of which the Court may take
judicial notice, are taken as true, and constructed in the light most favorable to pro se Plaintiff for
the purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016).
Between November 2007 and December 12, 2018, Plaintiff was employed by Defendant
and was initially stationed as a court officer in the Spring Valley Justice Court. (Compl. ¶¶ 7-8.)
Subsequently, on or about July 3, 2018, Plaintiff was notified by Anthony Mallia (“Mallia”) “an
aide to Mayor Alan Simon,” that there was a need for increased security in a different village
building referred to as the “Village Hall.” (Id. ¶ 10.) Plaintiff and a coworker, Simeon Naemit
(“Naemit”), were sometime afterwards assigned to work as security officers at the Village Hall,
and Plaintiff worked approximately 21 hours per week in this position. (Id. ¶¶ 13-14.)
Sometime in or around December 2018, an alleged sexual harassment incident occurred
between two of Plaintiff’s colleagues. Justin Montgomery (“Mr. Montgomery”), an employee of
Defendant assigned to the Village’s Section 8 Housing Department, allegedly sexually harassed
his colleague, Meagan Izquierdo (“Ms. Izquierdo”). (Id. ¶ 16.) Plaintiff suggests that Mr.
Montgomery may have benefited from the protection of his mother, Diana Montgomery (“Ms.
Montgomery”), who is also employed by Defendant as the Village Clerk. (Id. ¶ 17.) The sexual
harassment allegedly consisted of Mr. Montgomery’s statement to Ms. Izquierdo that her “man
ain’t shit” and (in what appears to be a loose quotation of Mike Tyson’s notorious statement to
reporters at a press conference on January 22, 2002) that he “would fuck [Ms. Izquierdo] in the
ass until she told him she loved him.” (Id. ¶ 19.)
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Plaintiff came to learn about this alleged sexual harassment during a shift as a security
officer at Village Hall on December 7, 2018. (Id. ¶¶ 18-19.) On that date, Ms. Izquierdo told
Plaintiff and Naemit that she was being sexually harassed by Mr. Montgomery and described Mr.
Montgomery’s threat of forcible adulterous anal sex. (Id.) After hearing Ms. Izquierdo’s account,
Naemit (not Plaintiff) reported the sexual harassment complaint to Mayor Simon and Mallia and
later discussed the “complaint and what should be done” about the allegations with Plaintiff. (Id.
Later that day, Ms. Izquierdo’s father, Nelson Izquierdo (“Mr. Izquierdo”), arrived at
Village Hall to see his daughter after hearing about the threat she received from Mr. Montgomery.
(Id. ¶ 22.) After Mr. Izquierdo discussed the matter with Plaintiff and Naemit, he requested an
audience with Mallia and Mayor Simon. (Id. ¶ 23.) Plaintiff then went to the Mayor’s office and
“told Mallia that Ms. Izquierdo was being subjected to sexual harassment by [Mr.] Montgomery
and that her father wanted to speak with the Mayor about it.” (Id. ¶ 24.) After Mallia told him
that he wanted to speak with Mr. Izquierdo after dealing with another task, Plaintiff “told Mallia
[that] it was a serious situation and that he should come out to speak with them [i.e., Mr. Izquierdo
and Ms. Izquierdo 1] immediately” and that “he would call the police if the situation was not
addressed.” (Id. ¶ 25.) Mallia then met with Ms. Izquierdo, Mr. Izquierdo, Assistant Village
Attorney Anthony Brigandi, and Naemit to discuss the sexual harassment allegation and promised
attendees of the meeting (which did not include Plaintiff) that the Village would take the complaint
seriously and address the matter by the following Monday. (Id. ¶¶ 26-27.)
Though Plaintiff does not directly state that “them” refers to Mr. Izquierdo and Ms.
Izquierdo, it can be fairly inferred that he is referring to the father and daughter from his use of a
plural pronoun and his subsequent allegation that Mallia met with Ms. Izquierdo and Mr.
Izquierdo. (See Compl. ¶¶ 25-26.)
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Four days later, on December 12, 2018, Plaintiff reported to work for the first time since
his confrontation with Mallia and was summoned to Village Attorney Brigandi’s office for a
meeting at 9:10 a.m. (Id. ¶¶ 29-30.) During the meeting, which was attended by Village Attorney
Brigandi and Ms. Montgomery, Plaintiff was told by Village Attorney Brigandi that Plaintiff and
Naemit were being terminated as security officers in Village Hall, and he was handed a letter from
his union president that allegedly contained a pretextual reason for terminating him. (Id. ¶¶ 3031.)
Fed. R. Civ. P. 12(b)(6)
On a Fed. R. Civ. P. 12(b)(6) motion, dismissal is proper unless the complaint “contain[s]
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)). When there are well-pleaded factual allegations in the complaint, “a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. at 679.
While the Court must take all material factual allegations as true and draw reasonable
inferences in the non-moving party’s favor, the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 662, 678 (quoting
Twombly, 550 U.S. at 555). The critical inquiry is whether the plaintiff has pled sufficient facts to
nudge the claim(s) “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555; see
also Iqbal, 556 U.S. at 678 (noting that a claim is facially plausible when the factual content
pleaded allows a court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged”). While it is not necessary for the complaint to assert “detailed factual
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allegations,” it still must allege “more than labels and conclusions.” Twombly, 550 U.S. at 555.
The facts in the complaint “must be enough to raise a right to relief above the speculative level on
the assumption that all the allegations in the complaint are true.” Id.
Defendant seeks dismissal of Plaintiff’s sole claim on the grounds that Plaintiff failed to
articulate one of the elements of a prima facie Title VII retaliation claim – i.e., he asserts that
Plaintiff failed to demonstrate that he engaged in a protected activity. (Def’s Mem. at 3-4.)
Plaintiff responds that he adequately alleges protected activity in the form of third party reporting
of a Title VII violation, i.e., the sexual harassment of a co-worker. Although this is a close call,
as discussed below, the Court agrees with Plaintiff.
Applicable Law in Third Party Title VII Opposition Clause Claims
Title VII retaliation claims are evaluated under the burden-shifting framework established
in McDonnel Douglas v. Green, 411 U.S. 792 (1973). See Sayed v. Hilton Hotels Corp., 627 F.3d
931, 932-33 (2d Cir. 2010) (per curiam). As an initial matter, the plaintiff must make a prima facie
case: (1) that she engaged in a protected activity; (2) that the defendant knew she engaged in a
protected activity; (3) that the defendant took an adverse employment action against her; and (4)
that there was a causal connection between Plaintiff’s protected activity and the adverse
employment action. See Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010). The plaintiff’s burden
of proof at this stage is de minimis. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000);
Norton v. Sam’s Club, 145 F.3d 114, 118 (2d Cir. 1998) (describing burden as “minimal”). In
evaluating whether a plaintiff has met this burden, the Court “focus[es] only on whether the
allegations in the complaint give plausible support to the reduced prima facie requirements that
arise under McDonnell Douglas in the initial phase of a litigation.” Littlejohn v. City of New York,
795 F.3d 297, 312 (2d Cir. 2015).
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Pursuant to the ‘opposition clause,’ Title VII forbids an employer from discriminating
against an employee because the employee “has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). “The word ‘oppose[d],’ which
is not defined in the statute, has been interpreted, in part, to mean ‘adverse to, as in opinion’ and
does not require any action ‘to advance a position beyond disclosing it.’” Abromavage v. Deutsche
Bank Sec. Inc., No. 18-CV-6621 (VEC), 2021 WL 1061596, at *3 (S.D.N.Y. Mar. 19, 2021)
(quoting Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 276, 277
(2009)). “[P]rotected activities are not limited to complaints involving discrimination against the
complainant herself, but also extend to complaints of discrimination on behalf of other
employees.” Littlejohn, 795 F.3d at 317.
Communications by third parties concerning discriminatory conduct—e.g., reports made
by plaintiffs supporting their co-workers or statements made by plaintiffs solicited by investigators
in an internal investigation—have regularly been considered protected activity with some key
caveats. On the one hand, communications that are critical of conduct at issue and outside the
scope of employment responsibilities are deemed protected activity. Thus, “‘[w]hen an employee
communicates to her employer a belief that the employer has engaged in . . . a form of employment
discrimination, that communication’ virtually always ‘constitutes the employee’s opposition to the
activity.’” Crawford, 555 U.S. at 276 (citing EEOC Compl. Man. §§ 8–II–B(1), (2), p. 614:0003
For example, a plaintiff’s statement during an internal investigation that he
witnessed the use of racial slurs and that there was a locker room atmosphere with respect to
treatment of women was deemed to be an adequate expression of disapproval so as to qualify as
protected activity. Abromavage, 2021 WL 1061596, at *4; see also, e.g., Hagan v. City of New
York, 39 F. Supp. 3d 481, 501 (S.D.N.Y. 2014) (concluding that plaintiff plausibly pleaded a
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retaliation claim where her “allegations suggest that . . . she advocated for systemic reform and the
rights of minority employees and, in so doing, became a thorn in the side of officials who wanted
to persist in unlawful discriminatory practices. This is quintessential opposition activity that goes
beyond mere participation in her role as an EEO Officer.”); Adams v. Northstar Location Servs.,
LLC, 09-CV-1063, 2010 WL 3911415, at *4 (W.D.N.Y. Oct. 5, 2010) (concluding that plaintiff’s
assertion to management “that it would be ‘inappropriate’ to fire certain minority employees”
constituted a protected activity, but that plaintiff’s “actions in investigating [a] complaint of racebased harassment would not constitute protected activity” because those actions were within the
scope of her employment as human resources director); cf. Cooper v. New York Dep’t of Labor,
14-CV-0717, 2015 WL 5918263, at *6 (N.D.N.Y. Oct. 9, 2015) (explaining that plaintiff alleged
facts plausibly suggesting that she “personally complained” of, and was “critical” about, “proposed
changes to complaint-handling procedures within state agencies,” but that plaintiff failed to allege
facts plausibly suggesting that defendants “were engaging in unlawful discrimination through the
new complaint-handling procedures”).
On the other hand, “[t]o the extent an employee is required as part of her job duties to report
or investigate other employees’ complaints of discrimination, such reporting or investigating by
itself is not a protected activity under § 704(a)’s opposition clause, because merely to convey
others’ complaints of discrimination is not to oppose practices made unlawful by Title VII.”
Littlejohn, 795 F.3d at 318. Thus, courts have concluded that a third party fails to allege protected
activity in connection with their disclosure of an alleged Title VII violation where the complainant
does not condemn the at-issue conduct or convey an assessment that discrimination has occurred,
or where the disclosure itself was within the scope of the complainant’s job responsibilities. See,
e.g., Whethers v. Nassau Health Care Corp., 956 F. Supp. 2d 364, 381 (E.D.N.Y. 2013) (finding
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that plaintiff’s activity of providing a document containing viable discrimination claims “is clearly
within the plaintiff’s duties as a representative of the Office of Diversity to present cases of
discrimination to upper management and does not constitute a protected activity.”).
Though not relevant to resolution of the instant motion—as Defendant solely argues that
Plaintiff failed to articulate a prima facie Title VII claim—once a plaintiff has made a prima facie
case, the burden then shifts to the employer to articulate a “legitimate, nondiscriminatory reason”
for the employment action. McDonnell Douglas, 411 U.S. at 802. Upon the defendant’s proffer
of a non-discriminatory reason, the presumption of discrimination arising with the prima facie case
“drops from the picture,” Weinstock, 224 F.3d at 42 (citing Hicks, 509 U.S. at 510-11), and the
“final and ultimate burden” then returns to the plaintiff to demonstrate that “defendant’s reason is
in fact [a] pretext for unlawful discrimination,” Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 231
(2d Cir. 2015); accord McDonnell Douglas, 411 U.S. at 804; Weinstock, 224 F.3d at 42. The
plaintiff must “produce not simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and
that more likely than not the discrimination was the real reason for the employment action.”
Weinstock, 224 F.3d at 42 (internal quotation marks omitted) (citation omitted).
Application of Title VII Third Party Opposition Clause Principles to Instant Case
In its moving brief, Defendant argues that Plaintiff cannot make out a prima facie case that
he engaged in protected activity because reporting egregious conduct directed at another person
does not qualify as protected activity. (Def’s Mem. at 4.) Plaintiff persuasively responded that
reporting conduct can be protected activity and is adequately alleged here because Plaintiff did not
merely pass along an allegation but also conveyed his condemnation of the alleged activity and his
conclusion that sexual harassment has occurred. (Pl’s Opp. at 3-7.) In its reply papers, Defendant
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principally argues that Plaintiff’s claim fails because, even if he spoke to his employer, he did not
engage in protected activity insofar as he failed to file a formal complaint. (Def’s Reply at 4-5.)
Though it is a close call, the Court concludes that Plaintiff has sufficiently alleged protected
activity. In relevant part, Plaintiff has alleged that he went to Mallia and told him “that Ms.
Izquierdo was being subjected to sexual harassment by Montgomery.” (Compl. ¶ 24.) He also
advised Mallia that “it was a serious situation and he should come speak with them [i.e., Mr.
Izquierdo and Ms. Izquierdo] immediately” and that “he would call the police if the situation was
not addressed.” (Id. ¶ 25.) Though these allegations are relatively thin, Plaintiff’s claim that he
told Mallia that a coworker was subjected to harassment by another coworker sufficiently states
that Plaintiff “communicate[d] to h[is] employer a belief that the employer has engaged in . . . a
form of employment discrimination,” Crawford, 555 U.S. at 276, and accordingly it is sufficient
to plausibly support the prima facie requirement of a protected activity at this stage of the litigation.
Likewise, Plaintiff’s threat to call the police unless Mallia spoke with the alleged victim and her
father suggests that he was “critical of the conduct at issue.” Abromavage, 2021 WL 1061596, at
*4. Finally, contrary to Defendant’s suggestion, the Court notes that the informality of Plaintiff’s
communication is not a basis to conclude that Plaintiff failed to plausibly support the prima facie
requirement of a protected activity. See Lamberson v. Six West Retail Acquisition Inc., 122 F.Supp.
2d 502, 511 (S.D.N.Y. 2000) (“Protected oppositional activities include informal as well as formal
complaints and complaints to management”).
A number of Defendant’s arguments are wildly inappropriate at this stage insofar as they
are predicated upon decisions reached on summary judgment motions and attempts to
mischaracterize or contradict the facts alleged in the Complaint. For example, after discovery,
Defendant may ultimately be able to prove that the interaction between Plaintiff and Mallia
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consisted of Plaintiff attempting to manage a reception issue—i.e., the appearance of a frustrated
visitor at Village Hall—within his job responsibilities and that Plaintiff was not earnestly
conveying his belief that sexual harassment had occurred. Nonetheless, Plaintiff did not plead that
he was merely acting as a receptionist (as Defendant suggests in its motion) and, at this stage of
the litigation, Plaintiff’s allegations are sufficient to give de minimis plausible support to the prima
facie requirement that he engaged in protected activity. Likewise, Defendant may be able to
persuasively argue at a later stage of this litigation that Plaintiff could not have reasonably formed
a conclusion that discriminatory activity occurred considering that, among other things, “Plaintiff
did not witness the alleged harassment” or “provide evidence about the harassment.” (Def’s Mem.
at 4.) It is true that, with respect to an opposition clause claim, “a cause of action is stated so long
as plaintiff possessed a ‘good faith, reasonable belief that the underlying challenged actions of the
employer violated the law.’”
Kunzler v. Canon, USA, Inc., 257 F.Supp.2d 574, 579
(E.D.N.Y.2003) (quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d
590, 593 (2d Cir. 1988)). Nonetheless, the Court disagrees with Defendant’s suggestion that a
third party complainant must personally witness sexual harassment in order to form a good faith
and reasonable belief that a violation of Title VII occurred. Finally, Defendant may prevail on its
argument that Plaintiff did not engage in protected activity because Mallia is not his employer and
is only loosely affiliated with Plaintiff’s employer. Nonetheless, at this stage, the Court cannot
conclude that Mallia did not qualify as Plaintiff’s employer or manager, especially given that
Plaintiff alleges that Mallia was involved in hiring him, played a leading role in the investigation
of the sexual harassment incident, and made representations to the victim regarding the Village’s
position on the seriousness of sexual harassment and even set the timeline for resolving the
complaint. (Compl. ¶¶ 10, 20-21, 26-27.)
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For the foregoing reasons, Defendant’s motion to dismiss is DENIED. Defendant is
directed to file an Answer to the Complaint on or before September 29, 2021. The parties are
directed to file a Case Management Plan and Scheduling Order on or before October 13, 2021
(template attached). The Clerk of the Court is respectfully directed to terminate Defendant’s
Motion to Dismiss at ECF No. 15.
Dated: September 7, 2021
White Plains, New York
NELSON S. ROMÁN
United States District Judge
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Rev. Jan. 2012
CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER
- against -
This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with
counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):
All parties [consent] [do not consent] to conducting all further proceedings before
a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).
The parties are free to withhold consent without adverse substantive consequences.
(If all parties consent, the remaining paragraphs of this form need not be
This case [is] [is not] to be tried to a jury.
Joinder of additional parties must be accomplished by
Amended pleadings may be filed until _____________________.
Interrogatories shall be served no later than ___________________, and responses
thereto shall be served within thirty (30) days thereafter. The provisions of Local
Civil Rule 33.3 [shall] [shall not] apply to this case.
First request for production of documents, if any, shall be served no later than
Non-expert depositions shall be completed by ____________________________.
Unless counsel agree otherwise or the Court so orders, depositions shall not
be held until all parties have responded to any first requests for production
Depositions shall proceed concurrently.
Whenever possible, unless counsel agree otherwise or the Court so orders,
non-party depositions shall follow party depositions.
Case 7:20-cv-01883-NSR Document 18 Filed 09/07/21 Page 13 of 13
Any further interrogatories, including expert interrogatories, shall be served no
later than _______________________.
Requests to Admit, if any, shall be served no later than
Expert reports shall be served no later than ______________________.
Rebuttal expert reports shall be served no later than ______________________.
Expert depositions shall be completed by ______________________.
Additional provisions agreed upon by counsel are attached hereto and made a part
ALL DISCOVERY SHALL BE COMPLETED BY ______________________.
Any motions shall be filed in accordance with the Court’s Individual Practices.
This Civil Case Discovery Plan and Scheduling Order may not be changed without
leave of Court (or the assigned Magistrate Judge acting under a specific order of
The Magistrate Judge assigned to this case is the Hon.
If, after entry of this Order, the parties consent to trial before a Magistrate Judge,
the Magistrate Judge will schedule a date certain for trial and will, if necessary,
amend this Order consistent therewith.
The next case management conference is scheduled for _____________________,
at ____________. (The Court will set this date at the initial conference.)
Dated: White Plains, New York
Nelson S. Román, U.S. District Judge
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