Ciulla-Noto v. Xerox Corporation
DECISION AND ORDER: Xerox's motion to dismiss 4 is GRANTED. Plaintiff's complaint 1 is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 02/07/2017. (ZS)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 16-CV-6362-FPG
DECISION AND ORDER
A very basic question lies at the heart of this employment discrimination case: did Xerox
Corporation (“Xerox”) fire Plaintiff Tamara Ciulla-Noto (“Plaintiff”) for a prohibited reason?
Plaintiff claims that she was fired in retaliation for engaging in protected activity and seeks relief
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title
VII”), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”). But
Plaintiff’s complaint lacks any plausible factual allegations regarding the causal connection
between her protected activity and her termination. Therefore, Xerox’s motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 4) must be granted.
Plaintiff began working at Xerox in 1988 and most recently held the position of “M-2
Material Handler/Fork Truck Driver.” During Plaintiff’s time at Xerox, she had repeatedly
complained to management and to her union about discrimination and was well known for
vocally opposing unlawful treatment in the workplace. On August 23, 2013, Plaintiff filed an
The following allegations are taken from Plaintiff’s complaint (ECF No. 1) and are accepted as true for the
purpose of evaluating Xerox’s motion to dismiss.
EEOC charge alleging disability and gender discrimination. 2 The EEOC issued its determination
on September 26, 2013. 3
A year later, on September 25, 2014, Plaintiff was involved in an altercation with coworker Susan Arena. Shortly after Plaintiff’s shift, Arena approached Plaintiff in the workplace
and began yelling at her and threatening her without any provocation. Arena said she would
“kick [Plaintiff’s] fucking ass” and pointed her finger near Plaintiff’s face in an offensive and
Plaintiff did not reciprocate and instead attempted to remove herself from the situation by
walking away, but Arena followed Plaintiff to another area and continued to wave her finger in
Plaintiff, feeling physically threatened and intimidated by Arena, “gently
removed Ms. Arena’s hand away from her facial area to protect herself.” After Plaintiff moved
Arena’s hand away from her face, Arena walked away from Plaintiff and said “she’s a rat and I
want to kill her.” Plaintiff alleges that she “conducted herself as a model employee” during this
incident, “never once reciprocating or engaging in any offensive response to Ms. Arena’s
On October 7, 2014, after investigating the September 25, 2014 altercation, Xerox
decided to fire both Plaintiff and Arena. Xerox concluded that Plaintiff used “inappropriate
language” in violation of the Xerox Code of Conduct, but Plaintiff alleges that she never used
“any language that was inappropriate in the slightest.” Although dock security cameras would
have corroborated Plaintiff’s version of events, they “were conveniently not in operation at the
time of the incident.”
Prior to this charge, Plaintiff had filed “approximately” nine other discrimination and retaliation complaints
during her tenure at Xerox. Plaintiff does not indicate whether those other complaints alleged discrimination on the
basis of gender or disability.
Plaintiff does not allege the substance of the EEOC’s determination.
Following her termination, Plaintiff received an unsolicited telephone call from a former
co-worker who she refers to as “Mr. R.” Mr. R told Plaintiff that he had observed the September
25, 2014 incident and was “shocked and dismayed” that Xerox fired Plaintiff. Mr. R also said
that he had relayed his observations, which matched Plaintiff’s version of events, to Xerox
Despite Xerox’s stated justification for her termination, Plaintiff alleges that the “real
reason” Xerox filed her was to retaliate against her for having previously opposed discrimination
in the workplace. Specifically, Plaintiff claims that Xerox fired her for filing an EEOC charge
on August 23, 2013 alleging disability and gender discrimination and for filing approximately
nine previous discrimination and retaliation complaints during her employment at Xerox.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a party may move to
dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). In reviewing a motion to dismiss under Rule 12(b)(6), a court “must accept as true
all of the factual allegations contained in the complaint,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 572 (2007), and “draw all reasonable inferences in Plaintiff’s favor.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). 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.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Twombly, 550
U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative
level.”). The application of this standard is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Xerox argues that Plaintiff fails to state a claim for retaliation 4 under either Title VII or
the ADA because she has failed to plausibly allege a causal connection between her protected
activity and her termination. ECF No. 4. The Court agrees.
Title VII prohibits employers from discriminating against an employee because that
employee “has opposed any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Similarly,
the ADA provides that “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.”
42 U.S.C. § 12203(a).
To state a claim for
retaliation under either Title VII or the ADA, a plaintiff must plausibly allege that: (1) the
defendant discriminated—or took an adverse employment action—against her, (2) “because” she
opposed a practice made unlawful by the relevant statute. Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 90 (2d Cir. 2015). 5
With respect to the second prong, a plaintiff must plausibly plead a causal connection
between her protected activity and the adverse employment action. Id. Retaliation must be the
“but-for” cause of the adverse action, meaning that the adverse action would not have occurred
in the absence of a retaliatory motive. Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, ---U.S. ---, 133 S.Ct. 2517, 2533 (2013)).
Plaintiff also mentions the terms “harassment,” “hostile work environment,” and “discrimination” in the
introduction to her complaint and in her prayer for relief. However, Plaintiff does not allege any acts of harassment,
hostile work environment, or discrete discrimination.
Although the Second Circuit in Vega set forth the pleading standard for a retaliation claim under Title VII,
courts routinely use the same framework to analyze retaliation claims under Title VII and the ADA. Sarno v.
Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). The Court will adopt that same approach
Here, Plaintiff’s complaint falls short of that standard. Plaintiff filed her EEOC charge
alleging gender and disability discrimination on August 23, 2013, and the EEOC issued its
determination a month later. On October 7, 2014, over a year after Plaintiff had engaged in
protected activity but less than two weeks after she had been involved in a heated altercation
with her co-worker Arena, Xerox decided to fire both Plaintiff and Arena. Although retaliatory
purpose may be shown indirectly by alleging that the protected activity was followed “closely in
time” by an adverse employment action, no such inference is reasonable in this case. Id.;
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (“Though this Court has
not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond
which a temporal relationship is too attenuated to establish causation, we have previously held
that five months is not too long to find the causal relationship.”); Perry v. NYSARC, Inc., 424 F.
App’x 23, 26 (2d Cir. 2011) (holding that an eleven-month gap is insufficient, absent any other
allegations in plaintiff’s complaint suggesting a causal connection).
The bulk of Plaintiff’s complaint is dedicated to her allegation that Xerox’s stated reason
for firing her—namely, that Plaintiff violated the Xerox Code of Conduct by using inappropriate
language—was erroneous. At this stage of the litigation, the Court assumes that Plaintiff’s
version of the events on September 25, 2014 is accurate and that Plaintiff did not use
inappropriate language. But even so, Plaintiff has not alleged sufficient facts to raise Plaintiff’s
right to relief “above the speculative level.” Twombly, 550 U.S. at 555. Rather, given Plaintiff’s
factual allegations, it is much more plausible that Xerox either (1) made a mistake in concluding
that Plaintiff had used inappropriate language or (2) decided to adopt a zero-tolerance attitude
towards disruptive confrontations at work by firing both employees who had been involved. See
Brandon v. O’Mara, No. 10-CV-5174, 2011 WL 4478492, at *8 (S.D.N.Y. Sept. 28, 2011)
(dismissing ADA retaliation claim where plaintiff’s allegations merely challenged the
employer’s stated reasons for its actions, rather than supporting a plausible inference of
“Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement
to relief.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotations
For the reasons stated above, Xerox’s motion to dismiss (ECF No. 4) is GRANTED.
Plaintiff’s complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court is
directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: February 7, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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