Opinion
11-CV-2432(RRM)(LB)
10-05-2012
DAWN T. HUNT, v. ARTHUR KILL CORRECTIONAL FACILITY, Defendant.
REPORT AND RECOMMENDATION
BLOOM, United States Magistrate Judge :
Plaintiff, Dawn T. Hunt, brings this pro se action against defendant Arthur Kill Correctional Facility pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as codified, 42 U.S.C. §§ 2000e to 2000e-17, and the Americans with Disabilities Act of 1990 ("ADA"), as codified, 42 U.S.C. §§ 12112-12117. Plaintiff alleges that defendant failed to accommodate her disability, subjected her to a hostile work environment based on her gender, and retaliated against her for filing a charge of discrimination. Defendant moves to dismiss plaintiff's amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Honorable Roslynn R. Mauskopf referred defendant's motion to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). It is respectfully recommended that defendant's motion to dismiss should be granted for the following reasons.
BACKGROUND
I. Factual Allegations
Plaintiff has been employed as a corrections officer at Arthur Kill Correctional Facility since 2005. (Compl. at 15, Pl.'s New York State Division of Human Rights Charge of Discrimination dated August 20, 2009 ("NYSDHR Charge").) In February 2007, plaintiff "became disabled ... due to a workplace accident." (Id.) Although plaintiff does not identify what her disability is, she alleges that defendant "was aware of [her] disabilities and refused to accommodate [her] with light duty on July 19, 2008." (Id.) Plaintiff further states that she was medically cleared to return to work on May 8, 2009, but defendant "sent [her] home." (Id.)
The factual allegations are taken from the amended complaint and two documents which were attached to the original complaint but omitted from the amended complaint. The first document is the NYSDHR Charge. (Compl. at 15.) The second document is plaintiff's May 29, 2009 letter to the United States Equal Employment Opportunity Commission ("Plaintiff's EEOC Letter"), which was attached to the NYSDHR Charge and referenced therein "for additional charge particulars." (Id. at 17-19.) Although an amended complaint completely replaces the original complaint, plaintiff's amended complaint contains fewer factual allegations than the original complaint. To the extent the amended complaint relies on facts set forth in the two attachments to the original complaint, the Court considers them herein. See generally, Difolco v. MSNBC Cable, LLC, 622 F.3d 104, 111 (2d Cir. 2010) ("In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.") (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). Defendant's motion to dismiss also considers these two documents when construing plaintiff's amended complaint. (Def.'s Mem. of Law at 2, ECF No. 25.)
Plaintiff also states that she was sexually harassed by defendant. Specifically, on May 26, 2009, Sergeant Sindoni "made a comment regarding [plaintiff's] work pants," saying that "[plaintiff] really look[ed] good in those pants." (Id.) In addition, after telling plaintiff "you got fired, you're caught selling real estate and picking up furniture," another sergeant "look[ed] [plaintiff] up and down with a smirk ... ." (Id. at 19, Plaintiff's EEOC Letter.). This sergeant continues to look at plaintiff in this manner "to no end." (Id.) Plaintiff also alleges that personnel employed by defendant spoke to her in a hostile and rude manner when she submitted medical documentation and personal leave slips. (Id. at 17-18.) For example, one officer told plaintiff "in a very demeaning tone, 'Pull you hair back and follow directive.'" (Id. at 18) Tanya Patterson of defendant's personnel office told plaintiff that the "facility is out to get your job" because plaintiff was "out on comp," that the Deputy Superintendent of Administration did not like plaintiff, and that plaintiff was a problem because she was selling real estate while out on Workers Compensation. (Id.) Plaintiff further asserts that she was unjustly given "formal counsel" for "3 days AWOL;" that her phone is monitored; and that she was only given four hours leave for a Workers Compensation Hearing. (Id.)
Finally, plaintiff asserts that defendant retaliated against her for filing her August 20, 2009 charge of sexual harassment with the Equal Employment Opportunity Commission ("EEOC"). (Am. Compl. ¶ 8.) Plaintiff alleges that shortly after she returned from leave without pay for an unspecified reason, which began on June 21, 2009 and ended on June 16, 2010, she was "brought up on charges [on August 5, 2010] for [an] alleged crime that happened [in] 2007." (Id.) Plaintiff was removed from payroll as of August 5, 2010 and asked to resign. (Id.)
Plaintiff's NYSDHR Charge was also filed with the EEOC. (Compl. at 15.)
II. Procedural History
Plaintiff commenced this pro se action on May 19, 2011. (ECF No. 1.) The original complaint attached an April 11, 2011 letter from the EEOC, resending plaintiff's notice of right to sue, which is dated February 23, 2011. (Id. at 6-7.) Defendant filed a letter requesting permission to move against the complaint in lieu of filing an answer, asserting that monetary damages under the ADA were barred by the Eleventh Amendment and that plaintiff failed to state a claim because she did not identify her disability and the alleged harassment was not pervasive or severe. (ECF No. 9.) The Court held an initial conference on October 14, 2011 to inform plaintiff of defendant's intent to move against the complaint. (ECF Nos. 12-13.) The Court noted that plaintiff could file an amended complaint as of right to try to cure the alleged deficiencies. Plaintiff was granted several months to retain an attorney and file an amended complaint. Although she remains pro se, plaintiff filed an amended complaint on January 17, 2012. (ECF No. 16.)
Defendant moved to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that (1) defendant is an improper defendant, (2) plaintiff's ADA claim is barred by the Eleventh Amendment, (3) plaintiff failed to exhaust her administrative remedies and her suit is time-barred, and (4) plaintiff fails to state a claim under Title VII or the ADA. (ECF No. 24.) Plaintiff has not opposed defendant's motion to dismiss.
DISCUSSION
I. Standard of Review
On a motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court "must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Sharkey v. Ouarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir.2001)). On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court also must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Iqbal, 129 S. Ct. at 1950.
The Court has the "obligation to construe pro se complaints liberally, even as [it] examine[s] such complaints for factual allegations sufficient to meet the plausibility requirement." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citation omitted). "It is well- established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (other citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotation marks and citation omitted). In deciding a motion to dismiss, the Court may consider, in addition to the complaint, documents that plaintiff attached to the pleadings, documents referenced in the complaint, documents that plaintiff relied on in bringing the action which were in plaintiff's possession or of which plaintiff had knowledge, and matters of which judicial notice may be taken. Halebian v. Berv, 644 F.3d 122, 131 (2d Cir. 2011).
II. Improper Defendant
Plaintiff sues Arthur Kill Correctional Facility as her employer. However, because correction officers, such as plaintiff, are employed by the New York State Department of Corrections and Community Supervision ("DOCCS"), formerly known as New York State Department of Correctional Services ("DOCS"), Arthur Kill Correctional Facility is not the proper defendant in this employment discrimination action. See Alfano v. Costello, 294 F.3d 365, 369 (2d Cir. 2002) (describing DOCS as a corrections officer's employer); Brown v. N.Y. State Dep't of Corr. Servs., 583 F. Supp. 2d 404, 410 (W.D.N.Y. 2008) (dismissing employment discrimination claims against a correctional facility because DOCS is a corrections officer's employer). Accordingly, the Court should grant defendant's motion to dismiss against Arthur Kill Correctional Facility on this basis. The remainder of defendant's motion to dismiss and the Court's analysis presumes that plaintiff intended to file this action against DOCCS.
III. ADA Claim
DOCCS first argues that plaintiff's claims under the ADA are barred by the Eleventh Amendment. The Eleventh Amendment states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend XI. The Eleventh Amendment bars suits in federal court against state governments unless the state waives its immunity or Congress validly abrogates that immunity. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). The Supreme Court has held that Congress did not validly abrogate the states' Eleventh Amendment immunity when it enacted Title I of the ADA. Garrett, 531 U.S. at 374 (addressing Title I of the ADA). This means that the states are not subject to the ADA. Moreover, New York has not waived its immunity for claims arising under the ADA. Trivedi v. N.Y. State Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 722 (S.D.N.Y. 2011).
The Court presumes that plaintiff brings her claims under Title I of the ADA, which prohibits discrimination in employment and hiring. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). Although the Second Circuit and the Supreme Court have not decided whether a public employee can bring employment discrimination claims under Title II of the ADA, which proscribes discrimination in access to public services, id., the Court agrees with the recent decision in Henny v. New York, 842 F.Supp.2d 530, 550 (S.D.N.Y. 2012), which after extensive discussion holds that "Title II of the ADA does not cover employment discrimination claims."
"The immunity recognized by the Eleventh Amendment extends beyond the states themselves to 'state agents and state instrumentalities' that are, effectively, arms of a state." Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 235 (2d Cir. 2006) (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). As DOCCS is an agency of the state of New York, it is entitled to sovereign immunity under the Eleventh Amendment. Richardson v. N.Y. State Dep't of Corr. Servs., 180 F.3d 426, 449 (2d Cir. 1999) (affirming dismissal of state law claims against DOCS on Eleventh Amendment grounds), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Santiago v. N.Y. State Dep't of Corr. Servs., 945 F.2d 25, 28 n. 1 (2d Cir.1991) (DOCS is an agency of the State, and therefore is entitled to assert Eleventh Amendment immunity); Nevelle v. N.Y. State Dep't of Corr. Servs., No. 05 CV 4071(ARR), 2005 WL 2305005, at *3 (E.D.N.Y. Sept. 21, 2005) (same). As plaintiff's ADA claim is barred by the Eleventh Amendment, the Court should dismiss this claim.
The Clerk of Court is directed to send plaintiff the attached copies of all unreported cases cited herein.
This Court lacks subject matter jurisdiction over plaintiff's disability discrimination claims against DOCCS under the ADA based on the Eleventh Amendment. Therefore, dismissal under Fed. R. Civ. P. 12(b)(1) is appropriate, not 12(bX6), which requires "a decision on the merits, and therefore, an exercise of jurisdiction." Magee v. Nassau Cty. Med. Ctr., 27 F. Supp. 2d 154, 158 (E.D.N.Y. 1998). Defendant also moves to dismiss this claim on the grounds that plaintiff fails to state a claim under the ADA. Since the Court finds that plaintiff's ADA claim is barred by the Eleventh Amendment, the Court should not address defendant's failure to state a claim argument but rather should dismiss the ADA claim based on the lack of subject matter jurisdiction.
IV. Title VII Claims
A. Timeliness and Exhaustion
Defendant argues that plaintiff failed to "ma[ke] sufficient allegations to show that she commenced this lawsuit within 90 days of receiving a right to sue letter from the EEOC." (Def.'s Mem. of Law at 12.) "In order to be timely, a claim under" Title VII "must be filed in federal district court within 90 days of the claimant's receipt of a right-to-sue letter from the EEOC." Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011) (citing 42 U.S.C. § 2000e-5(f)(1)). The Court presumes that "a notice provided by a government agency was mailed on the date shown on the notice" and that a "document is received three days after its mailing." Id. (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996)). Although plaintiff's amended complaint states that plaintiff received a right to sue letter on an unspecified date in "August," (Am. Compl. ¶ 12), the EEOC notice of right to sue letter attached to her original complaint is dated February 23, 2011, (Compl. at 7, Dismissal and Notice of Rights). Since plaintiff filed this action on May 19, 2011 - 82 days from the date she would be presumed to have received the right to sue letter - her complaint is timely.
Defendant also asserts that plaintiff's retaliation claim is unexhausted because she "has not met her burden of alleging that she filed a complaint with the EEOC regarding alleged retaliation by Arthur Kill within the required 300 day time period." (Def.'s Mem. of Law at 12.) This argument also fails. "Title VII's administrative exhaustion provision requires that any complaint be filed with the EEOC within 300 days of the alleged discriminatory act." McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010) (citing 42 U.S.C. § 2000e-5(e)(1)). However, there is a well-settled exception to this requirement for unexhausted claims that are "reasonably related" to those claims presented to EEOC. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). Second Circuit precedent explicitly holds that a claim "alleging retaliation by an employer against an employee for filing a discrimination charge is one type of claim ... [that is] 'reasonably related' to the underlying discrimination charge" and need not be exhausted before the administrative agency. Id. (internal quotation marks and citations omitted). See also Butts v. N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1992) (with regards to retaliation for filing an EEOC charge, the exhaustion requirement is "relaxed ... based on the close connection of the retaliatory act to both the initial discriminatory conduct and the filing of the charge itself"), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 164 F.3d 684 (2d Cir. 1998). As plaintiff alleges that defendant retaliated against her for filing a charge of discrimination, plaintiff's retaliation claim is reasonably related to the claims raised in her EEOC charge. Therefore, defendant's argument that plaintiff's retaliation claim should be dismissed for failure to exhaust should be denied.
B. Failure to State a Claim
1. Hostile Work Environment/Sexual Harassment
Defendant also argues that plaintiff fails to state a claim for hostile work environment/sexual harassment. To state a claim for a hostile work environment based on sex, "a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive - that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's sex." Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks and citation omitted). "Whether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (quoting Harris v. Forklift Svs., Inc., 510 U.S. 17, 23 (1993)).
"Isolated incidents usually will not suffice to establish a hostile work environment," however, "even a single episode of harassment can establish a hostile work environment if it is sufficiently 'severe.'" Id. at 175-76 (citing Pucino v. Verizon, 618 F.3d 112, 119 (2d Cir. 2010)). In addition, "[e]ven when a plaintiff establishes that she was exposed to an objectively and subjectively hostile work environment, 'she will not have a claim unless she can also demonstrate that the hostile work environment was caused by animus towards her as a result of her membership in a protected class.'" Bermudez v. City of New York, 783 F. Supp. 2d 560, 578 (S.D.N.Y. 2011) (quoting Sullivan v. Newburgh Enlarged Sch. Dist., 281 F. Supp. 2d 689, 704 (S.D.N.Y. 2003)). In other words, "[a]n environment that would be equally harsh for all workers, or that arises from personal animosity, is not actionable under the civil rights statutes." Forts v. City of N.Y. Dep't of Corr., No. 00 Civ. 1716(LTS)(FM), 2003 WL 21279439, at *4 (S.D.N.Y. June 4, 2003) (citations omitted).
Plaintiff alleges that personnel employed by defendant spoke to her rudely and in a hostile manner, told her defendant was out to get her job because she was on Workers Compensation or for selling real estate while out on Workers Compensation, told plaintiff to "[p]ull [her] hair back and follow directive" in a demeaning tone, unjustly disciplined her for three days she was allegedly absent, gave her only four hours for a Workers Compensation hearing, and monitored her phone. However, plaintiff does not allege any facts to plausibly suggest that any of this conduct was motivated by plaintiff's gender or sex. Mere allegations of hostility by themselves are insufficient to support a hostile work environment claim. Vandermark v. City of New York, 615 F. Supp. 2d 196, 209 (S.D.N.Y. 2009). As plaintiff alleges no facts linking the "rude" comments and conduct to her gender or sex, plaintiff fails to state a claim for a hostile work environment or for sexual harassment based on these actions. See e.g., Zucco v. Auto Zone, Inc., 800 F. Supp. 2d 473, 476 (W.D.N.Y. 2011) (pro se plaintiff failed to state a claim for hostile work environment where she alleged that a few employees made disparaging remarks, a male used the female restroom, and she was asked for proof of hotel reservations or airline tickets to receive vacation time); Murray-Dahnir v. Lowes Corp., No. 99 Civ. 9057(LLM), 1999 WL 639699, at *4 (S.D.N.Y. Aug. 23, 1999) (plaintiff failed to state a claim for race-based hostile work environment where unlike non-African American managers, he was required to work extra hours without proper support, his supervisor ceased direct communication with him and admonished him publicly and unjustifiably on numerous occasions, and he received an illegitimate critical memo).
Plaintiff does allege two facts related to her gender. Plaintiff asserts that on May 26, 2009, Sergeant Sindoni "made a comment regarding [plaintiff's] work pants," saying that "[she] really look[ed] good in those pants." (Compl. at 15, NYSDHR Charge). In addition, an unnamed sergeant continuously "look[s] [plaintiff] up and down with a smirk." (Id. at 19, Letter to EEOC.) However, this conduct is not sufficiently severe or pervasive to constitute a hostile work environment. First, plaintiff alleges that the supervisor commented on her pants once. A one-time comment is "[in]sufficiently continuous and concerted ... to be deemed pervasive." Alfano v. Costello, 294 F.3d 365, 374 (2d. Cir. 2002). Second, the comment in and of itself is not severe; at most, it is a "mere offensive utterance," Harris, 510 U.S. at 21. Cf. Cristofaro v. Lake Shore Centr. Sch. Dist., No. 06-CV-487S(WMS), 2011 WL 635263, at *7 (W.D.N.Y. Feb. 11, 2011) (comments that plaintiff looked good and/or fit were not sufficiently severe for a hostile work environment claim); Lamar v. Nysex Serv. Co., 891 F. Supp. 184, 185 (S.D.N.Y. 1995)(touching plaintiff's hand, comments that she looked "hot," and staring at her were "too mild and innocuous to constitute sexual harassment as a matter of law"). Third, courts in this Circuit have found that workplace environments consisting of more extreme and pervasive conduct than the conduct at issue here were not hostile or abusive as a matter of law. See Spina v. Our Lady of Mercy Med. Ctr., No. 97 Civ. 4661(KTD), 2003 WL 22434143, at *3 (S.D.N.Y. Oct. 23, 2003) (supervisor's comment that plaintiff looked good in tight pants, his leering at plaintiff, referring to plaintiff as a "bitch" twice, following her to the restroom door, yelling at her for no reason, and pointing his finger in her face were not sufficiently severe or pervasive to constitute a hostile work environment). See also Godineaux v. LaGuardia Airport Marriott Hotel 460 F. Supp. 2d 413, 422 (E.D.N.Y. 2006) (collecting cases where offensive, inappropriate, crude, or grotesque behavior did not meet the severe or pervasive standard as a matter of law); Prince v. Cablevisions Sys. Corp., No. 04 Civ. 8151(RWS), 2005 WL 1060373, at *6-7 (S.D.N.Y. May 6, 2005) (dismissing hostile work environment claim based on "an unspecified number of occasions of inappropriate sex talk," and one instance where alleged harasser "solicited [plaintiff] for sex" and "tried to kiss her"). Therefore, plaintiff's allegations that one sergeant complimented her appearance on one occasion and another looks her up and down, do not state a plausible hostile work environment/sexual harassment claim. As such, defendant's motion to dismiss this claim should be granted.
2. Retaliation
Defendant also argues that plaintiff's allegation that defendant retaliated against her for "fil[ing] a sexual harassment suit with the EEOC against [her employer] on August 20, 2009" (Am. Compl. ¶ 8), fails to state a claim. (Def.'s Mem. of Law at 15.) To establish a prima facie case of retaliation under Title VII, a plaintiff must show "(1) that she participated in a protected activity, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between her engaging in the protected activity and the adverse employment action." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (citation omitted). At this stage, plaintiff need not establish a prima facie case, but must nonetheless "allege facts that state a plausible retaliation claim." Jackson v. N.Y. State Dep't of Labor, 709 F. Supp. 2d 218, 228 (S.D.N.Y. 2010).
By filing an EEOC charge, plaintiff engaged in protected activity. See Townsend v. Benjamin Enter., Inc., 679 F.3d 41, 48 (2d Cir. 2012) ("Section 704(a) of Title VII ... make[s] it unlawful for an employer to retaliate against an individual 'because he has made a charge ... under this subchapter'") (quoting 42 U.S.C. § 2000e-3(a)). Plaintiff also alleges she suffered an adverse employment action, which is any action that could "dissuade[] a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry, 548 U.S. at 68 (citation and internal quotation marks omitted). Plaintiff alleges that she was brought up on charges, removed from payroll, and asked to resign. (Am. Compl. ¶ 8.) As these actions may discourage employees from engaging in protected activity, plaintiff has alleged that she suffered an adverse employment action. See, e.g., Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 474 (SDNY 2011) (filing disciplinary charges against and suspending an employee constituted adverse action).
Plaintiff alleges that she was "asked" to resign, (Am. Compl. at 8), and checked off "Termination of my employment" on the form complaint, (id. at 4). Whether plaintiff was actually terminated is immaterial, as plaintiff has pled an adverse employment action, even without alleging she was terminated.
Plaintiff can establish a causal connection, "either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (citing Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993)); accord Rodriguez v. City of New York, 644 F. Supp. 2d 168, 192 (E.D.N.Y. 2008). Here, plaintiff asserts that she was brought up on charges and taken off of payroll on August 5, 2010, almost one year after she filed her complaint with the EEOC on August 20, 2009. (Am. Compl. ¶ 8.) Plaintiff does not allege disparate treatment of fellow employees who engaged in similar conduct or retaliatory animus. The timing of the retaliation also "suggests, by itself, no causality at all," Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (referring to 20 month gap between protected activity and adverse employment action). Indeed, "district courts in this Circuit have consistently held that a passage of more than two months between the protected activity and the adverse employment action does not allow for an inference of causation." Garrett v. Garden Citv Hotel, Inc., No. 05-CV-962(JFB)(AKT), 2007 WL 1174891, at *21 (E.D.N.Y. Apr. 19, 2007) (collecting cases). Thus, in this case, the nearly "yearlong gap between the two events far exceeds the normal span of time from which causality may be inferred." Baez v. Visiting Nurse Serv. of New York Family Care Serv., No. 10 Civ. 6210(NRB), 2011 WL 5838441, at *6 (S.D.N.Y. Nov. 21, 2011). As plaintiff alleges no facts to suggest a plausible causal connection between the filing of the EEOC charge and the alleged retaliation, plaintiff fails to state a plausible retaliation claim. See e.g., id. (granting motion to dismiss where plaintiff alleged no facts from which a causal connection could be inferred and there was a one year gap between the protected activity and adverse action); Chukwueze v. NYCERS, No. 10 Civ. 8133(JMF), 2012 WL 3758452, at *10 (S.D.N.Y. Aug. 30, 2012) (granting motion to dismiss because the three to six month time gap did not establish causation and there were no other facts to state a plausible retaliation claim); Muhammad v. Juicy Couture/Liz Claiborne, Inc., No. 09 Civ. 8978(PAC)(THK), 2010 WL 4032735, at *6 (S.D.N.Y. July 30, 2010) (recommending dismissal with prejudice where plaintiff failed to state a plausible retaliation claim because of the two-year time gap and the absence of any other facts related to retaliatory animus or disparate treatment of a similarly situated employee), adopted at 2010 WL 4006159 (S.D.N.Y. Oct. 12, 2010). Accordingly, defendant's motion to dismiss plaintiff's retaliation claim should be granted.
Plaintiff does allege that defendant was "out to get" her because she was on Workers Compensation. Being on Workers Compensation or seeking to apply for it is not a protected activity under Title VII. Male v. Tops Mkts., LLC, No. 08-CV-6234(MAT), 2010 WL 4319769, at *2 (W.D.N.Y. Oct. 29, 2010) (granting motion to dismiss retaliation claim because plaintiff's complaints regarding ADA and FMLA violations were not protected activity under Title VII).
Although plaintiff has not opposed defendant's motion, she could have argued that her retaliation claim is plausible because defendant waited for an "opportune time," Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009), namely when plaintiff returned to work from her unpaid leave, to take an adverse action against plaintiff. However, plaintiff "has not alleged any facts from which the Court can infer that" August 5, 2010 "was a more 'opportune time' to [issue the charges]" than any other time during the unpaid leave or the first 50 days (from June 16, 2010 until August 4, 2010) after she returned from leave. Robles v. Cox & Co., Inc., 841 F. Supp. 2d 615, 630 (E.D.N.Y. 2012) (granting motion to dismiss retaliation claim where plaintiff failed to allege any facts from which to infer that the timing of plaintiff's termination was more opportune three months after her transfer, rather than any other time during the previous seven years following her reinstatement).
CONCLUSION
For the reasons set forth above, it is respectfully recommended that defendant's motion to dismiss should be granted. While "[a] pro se complaint 'should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated," Chavis v. Chappius, 618 F.3d 162, 170 (2d cir. 2010) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991), plaintiff has already been granted an opportunity to amend her complaint after being given notice of the deficiencies of her pleadings. As discussed above, the amended complaint did not cure the deficiencies in the pleadings and there is no basis to believe that another chance to amend will change the recommended outcome. Moreover, plaintiff has failed to oppose the instant motion. Therefore, I respectfully recommend that defendant's motion to dismiss the amended complaint should be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of Court. Any request for an extension of time to file objections must be made within the fourteen day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140 (1985). SO ORDERED.
/s/_________
LOIS BLOOM
United States Magistrate Judge Dated: October 5, 2012
Brooklyn, New York