Opinion
11 Civ. 4457 (DAB)(MHD)
08-22-2012
TRACY KING, Plaintiff, v. U.S. SECURITY ASSOCIATES, INC., Defendant.
REPORT & RECOMMENDATION
TO THE HONORABLE DEBORAH A. BATTS, U.S.D.J.:
Pro se plaintiff Tracy King brings this action against her former employer, United States Security Associates Inc. ("USSA"), alleging that she has been subjected to discriminatory treatment, including insulting comments and a demotion after a very brief promotion. In her June 15, 2011 complaint, she asserts claims of race and age discrimination, invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ("ADEA"), the New York State Human Rights Law, N.Y. Exec. Law §§ 290-297 ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 to § 8-131("NYCHRL"). (Compl. at 1).
Defendant has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that plaintiff failed to exhaust her administrative remedies under Title VII and the ADEA, and that the complaint fails to state a claim for employment discrimination. Plaintiff has not responded to the motion.
For the reasons that follow, we recommend that defendant's motion to dismiss be granted with leave to replead.
BACKGROUND
Plaintiff, a former employee of USSA, alleges principally that she was subjected to discriminatory treatment in that her employer either failed to promote her or demoted her in favor of an underqualified "white" employee, and otherwise subjected her to unequal terms and conditions in employment on the basis of race. In her brief statement of facts in her form complaint, she alleges that "Supervisor AKA[] John Kahn made discriminatory comments about me wearing to[o] much make-up to other employee[]s, and not treating plaintiff as other employee[]s. Defendant promote[d] plaintiff for one day, then gave the job to a white employee with no experience." (Compl. ¶ 2(E)).
Ms. King states that she filed a charge with the Equal Employment Opportunity Commission ("EEOC") regarding this treatment on February 12, 2011 and received a right-to-sue letter on May 19, 2011. However, the document that she attaches to the complaint is a right-to-sue letter dated March 21, 2011, and appears to relate to a different employer, the New York City Department of Parks and Recreation ("Parks Department").
Defendant moves to dismiss the complaint on three grounds, arguing that: (1) plaintiff has failed to demonstrate that she exhausted the required administrative remedies under Title VII and the ADEA; (2) plaintiff fails to state a cause of action for age discrimination; and (3) plaintiff fails to state a claim for race discrimination. (See Def.'s Mem. of Law in Supp. of Mot. to Dismiss ("Dismissal Mem. of Law") at 1-8).
By order dated October 18, 2011, we directed plaintiff to serve and file her response to the motion to dismiss by no later than November 10, 2011, and defendant to file and serve any reply by November 17, 2011. Plaintiff did not file or serve a response. On November 17, 2011, defendant filed a reply, reiterating its application for dismissal based on the arguments in its prior submission. (See Def.'s Reply Mem. of Law).
ANALYSIS
We start with a brief summary of the legal standards governing Rule 12(b)(6) motions and then assess defendant's proffered grounds for dismissal seriatim.
I. Legal Standards on a Motion to Dismiss
We start by noting the stringency of the standard that the movant must meet in order to obtain dismissal for failure to state a claim. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 41S U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); accord, e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 476 (2d Cir. 2006) (per curiam). In assessing such a motion, the court must assume the truth of the well-pled factual allegations of the complaint and must draw all reasonable inferences against the movant. See, e.g., Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006); Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).
The traditional test on a Rule 12(b)(6) motion required that the complaint not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006) (per curiam) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has since rejected this formulation, however, and hence a complaint is now subject to dismissal unless its factual allegations, if credited, make the claim "plausible". See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-70 (2007).
When addressing a Rule 12(b)(6) motion, the court may not consider evidence proffered by the moving party. Rather, it is limited to reviewing the four corners of the complaint, any documents attached to that pleading or incorporated in it by reference, any documents that are "integral" to plaintiff's allegations even if not explicitly incorporated by reference, and facts of which the court may take judicial notice. See, e.g., ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Leonard F. v. Israel Disc. Bank, 199 F.3d 99, 107 (2d Cir. 1999).
In view of plaintiff's status as an untutored pro se litigant, we read her complaint liberally and derive from it the most reasonable claims and arguments that it may be read to imply. See, e.g., Triestman, 470 P.3d at 474-76. Moreover, liberal pleading rules apply "with particularly stringency to [pro se] complaints of civil rights violations." Phillip v. Univ. of Rochester, 316 F.3d 291, 293-94 (2d Cir. 2003). However, the "plausibility" standard articulated in Twombly and Iqbal applies to the pleadings of pro se plaintiffs as well as to those of represented litigants. See, e.g., Carvel v. Cuomo, 357 Fed. App'x 382, 383-84 (2d Cir. 2009); Sheehy v. Brown, 335 Fed. App'x 102, 104 (2d Cir. 2009); Collins v. West Hartford Police Dep't, 324 Fed. App'x 137, 138-39 (2d Cir. 2009); Dorsey v. Fisher, 2009 WL 4985421, *2, *4 (N.D.N.Y. Dec. 15, 2009); Conseillant v. Lafontant, 2009 WL 2163263, *1 (N.D.N.Y. July 20, 2009).
II. Exhaustion
Defendant asserts, as its first basis for dismissal, that plaintiff failed to "demonstrate" that she exhausted her administrative remedies, as required by Title VII and the ADEA. (Dismissal Mem. of Law at 3). At this stage, and in view of defendant's reliance on Rule 12(b)(6), plaintiff is not required to "demonstrate" exhaustion, but we agree that her complaint does not meet the pleading requirements for exhaustion.
A. Legal Standard
A plaintiff seeking to assert a claim under Title VII and the ADEA must exhaust her available administrative remedies before filing suit. See, e.g., Pauling v. Sec'y of the Dep't of the Interior, 160 F.3d 133, 133-34 (2d Cir. 1998); Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996). Such exhaustion requires that the claimant present to the pertinent administrative agency -- in this case, the EEOC all claims that she will seek to pursue in court. See, e.g., Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superceded by statute on other grounds as recognized in Hawkins v. 1115 Legal Servs. Care, 163 F.3d 684 (2d Cir. 1998); Francis v. City of New York, 235 F.3d 763, 767-68 (2d Cir. 2000).
We note that defendant does not attack plaintiff's state and city claims based on a failure to exhaust administrative remedies.
B. Analysis
Defendant asserts that plaintiff has not shown that she exhausted her administrative remedies, as the right-to-sue letter that she appended to her complaint does not refer to a charge against USSA. (Dismissal Mem. of Law at 3-4; see also Compl. at Attach). It argues that this failure compels dismissal of her federal claims.
Plaintiff reports that she exhausted her administrative remedies. Specifically, she indicates in her complaint that she filed a charge with the EEOC on February 12, 2011 and received a right-to-sue letter on May 19, 2011. (Compl. ¶ III (A)-(B)). In conflict with this representation, however, she appends an EEOC letter that is dated March 21, 2011 and that refers to the Parks Department rather than to USSA.
It is, of course, possible that plaintiff filed separate EEOC charges against two employers, and then mistakenly appended the wrong EEOC letter to her complaint. Since, however, she never responded to the current dismissal motion, this is a matter of pure speculation. Furthermore, in cases with somewhat similar factual scenarios, courts have dismissed plaintiffs' claims for failure to exhaust administrative remedies. For instance, in Barton v. MikelHayes, 2010 WL 980708 (N.D.N.Y. Mar. 15, 2010), the EEOC right-to-sue letter attached to plaintiff's complaint did not name one of the defendants, and the court thus dismissed the claim against that defendant, even though the plaintiff contended that he had amended his original EEOC complaint to include that particular defendant. See id. at *4 ("[B]ecause only Defendant TAC was listed on Plaintiff's notice-of-right-to-sue, Plaintiff has failed to exhaust his administrative remedies as to the FUMC."); see also Mann v. Sunshine Biscuit, 1998 WL 352534, *1 (S.D.N.Y. Apr. 23, 1998) (ADEA claims against a defendant dismissed where the plaintiff attached a right-to-sue letter that named only a different defendant). Similarly here, plaintiff asserts that she exhausted her administrative remedies (see Compl. ¶ III), but her right-to-sue letter attached to the complaint names only the Parks Department. Accordingly, we recommend that plaintiff's claims under Title VII and the ADEA be dismissed for failure to exhaust administrative remedies. Because we recognize, based on the assertions in her complaint, the possibility that plaintiff did in fact properly exhaust her remedies, we recommend that the dismissal be without prejudice to replead. See Robinson v. Front-Line Sec. Inc., 68 Fed. App'x 258, 260-61 (2d Cir. 2003).
III. Plaintiff's Pleading of Age and Race Discrimination
Defendant also seeks dismissal of all of plaintiff's claims on the asserted ground that she fails to state a cognizable cause of action under federal, state and city laws. Under the liberal standards appropriate to pro se pleadings, we conclude that one set of plaintiff's claims survives pleading scrutiny.
A. The Pleading Standard
Under Title VII, it is unlawful for any employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Similarly, the ADEA forbids employers to "discharge . . . or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). The ADEA protects only those persons who are forty years of age or older. Id. at § 631. In addition, both the NYSHRL and NYCHRL make it unlawful for an employer to discriminate against an employee "because of" his race or age. N.Y. Exec. Law § 296(1)(a); N.Y.C. Admin. Code § 8-107(1)(a).
Individual employment discrimination claims that arise under Title VII are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as are claims arising under the ADEA, the NYSHRL, or the NYCHRL. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Under the McDonnell Douglas framework, the initial burden is on the plaintiff to establish a prima facie case of discrimination. Chacko v. Worldwide Flight Servs., Inc., 2010 WL 424025, *3 (E.D.N.Y. Feb. 3, 2010); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).
The Supreme Court has held, however, that the prima facie case requirement under McDonnell Douglas is an evidentiary standard, not a pleading requirement. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12 (2002); accord Boykin v. KeyCorp, 521 F.3d 202, 212 (2d Cir. 2008). At the pleading stage, the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," which will "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S at 512 (quoting Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nonetheless, consistent with Twombly, 550 U.S. at 569-70, and Iqbal, 556 U.S. at 678-79, although "a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss . . . 'the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.'" Barbosa v. Continuum Health Partners, Inc., 716 F. Supp.2d 210, 215 (S.D.N.Y. 2010) (quoting Fowler v. Scores Holding Co., 677 F. Supp.2d 673, 679 (S.D.N.Y. 2009)).
"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." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (per curiam) (quoting Iqbal, 556 U.S. at 678). Thus, although a plaintiff need not plead a prima facie case at the pleading stage, she must allege sufficient facts to plead a plausible claim. For this conclusion to be drawn, a plaintiff must allege facts that allow the court in substance to infer elements of a prima facie case. See, e.g., Fernandez v. City of New York, 2012 WL 2402642, *3-4 (S.D.N.Y. June 26, 2012) (dismissing claims under 42 U.S.C §§ 1981 and 1983 because plaintiff failed to plead sufficient facts establishing a material adverse employment action); see also Romaine v. New York City Coll. of Tech. of the City Univ. of New York, 2012 WL 1980371, *2 (E.D.N.Y. June 1, 2012) ("The elements of a prima facie discrimination claim are . . . relevant to the determination of whether a complaint provides a defendant with fair notice and contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.") (quoting Chacko, 2010 WL 424025, at *3).
B. Age Discrimination
Defendant argues that the complaint is completely devoid of the allegations necessary to articulate an age-discrimination claim. Specifically, it points to plaintiff's failure to allege that she is a member of the protected class or to offer any pertinent factual allegations, and that she instead simply "plac[ed] a checkmark on the line adjacent to the ADEA column on page 1." (Dismissal Mem. of Law at 4).
We agree that plaintiff does not allege facts that suggest that age was a basis for any alleged discrimination. She does not indicate whether she is part of the class of protected employees -- those older than forty under the ADEA, see 29 U.S.C. § 631(a) -- and nowhere in her brief narrative does she imply that the adverse actions she mentions were triggered by age animus. Indeed, her one reference to discriminatory intent suggests only race discrimination. (Compl. ¶ II(E)). A claim that does not contain any supporting factual allegations cannot withstand a Rule 12(b)(6) motion. See Iqbal, 556 U.S. at 678.
We therefore recommend that plaintiff's age-discrimination claim under federal, state and city law be dismissed. However, because plaintiff is a pro se litigant and may conceivably be able to articulate a viable age claim, we recommend that the dismissal be without prejudice.
C. Race Discrimination
We interpret plaintiff's race discrimination allegations to consist of two separate claims -- a claim for failure to promote, or demotion, and a claim for disparate treatment or hostile work environment based on alleged comments by plaintiff's supervisor. We address these theories separately.
1. Failure to Promote/Demotion
To state a claim for either denial of promotion or demotion based on race, plaintiff must allege at least some facts suggesting that she is a member of a protected class, that she was either denied a promotion for which she applied or was demoted, that she was qualified for the position and that the circumstances surrounding that action permit an inference of discrimination. See, e.g., Romaine, 2012 WL 1980371, at *3 ("[A] plaintiff is [] required to allege that he or she applied specifically for the position in question."); Delgado v. Triborough Bridge & Tunnel Auth., 485 F. Supp.2d 453, 463 (S.D.N.Y. 2007) ("[Plaintiff] must specifically allege events claimed to demonstrate intentional discrimination as well as circumstances giving rise to a reasonable inference of racially discriminatory intent."); Evans-Gadsden v. Bernstein Litowitz Berger & Grossman, LLP, 332 F. Supp.2d 592, 596 (S.D.N.Y. 2004) ("A plaintiff must 'specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.'") (internal citations omitted). Plaintiff also invokes New York State and City law, and because, as noted, those claims are subject to the same analysis as claims under Title VII, we analyze all claims together. See, e.g., Bush v. Fordham Univ., 452 F. Supp.2d 394, 405 (S.D.N.Y. 2006).
Plaintiff alleges that she was promoted for a day, and that the position was then given to a "white employee with no experience." (Compl. ¶ II(E)). In response, defendant argues that plaintiff fails to allege that she is a member of a protected group, that she applied for a position for which defendant was seeking applicants, or that she was qualified for that position. (Dismissal Mem. of Law at 7). Defendant also asserts that plaintiff's allegation that she was promoted for a day amounts to an admission that she did not suffer any adverse employment action. (Id.).
Plaintiff does not explicitly state her race. Nonetheless, she identifies the employee who replaced her as "white," and we may therefore infer that plaintiff is non-white and is, in these circumstances, a member of a protected class. As to whether she applied for a position for which she was qualified, she alleges that she was initially given the promotion, implying that she applied and was qualified.
Of course, the fact that plaintiff was allegedly given a promotion, albeit brief, demonstrates that there was no failure to promote. Liberally reading her complaint, however, we infer that she is seeking to assert a claim for a racially discriminatory demotion.
Cognizant of that potential interpretation, defendant argues that plaintiff's allegations are insufficient to permit an inference of discrimination. In support of this argument, defendant cites the "same actor inference," which courts have invoked in some circumstances to preclude claims for discrimination. See, e.g., Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997); Anderson v. Hertz Corp., 507 F. Supp.2d 320, 329-30 (S.D.N.Y. 2007), aff'd, 303 Fed. App'x 946 (2d Cir. 2008). According to defendant, since plaintiff's alleged demotion is said to have occurred one day after her promotion, that demotion was unlikely to have been related to her race. (See Dismissal Mem. of Law at 7).
This argument is misguided here. Typically, the "same actor inference" is applied on summary-judgment motions, when the individual who hires a person within the protected class later fires that employee, since it is difficult to impute to the decision-maker an invidious motivation in such circumstances. See, e.g., Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000); Anderson, 507 F. Supp.2d at 329-30. In this case, we are still at the pleading stage and must therefore assume the truth of plaintiff's factual allegations. So limited, we see no suggestion in the complaint that the person who promoted plaintiff also demoted her, and accordingly, the inference is unavailable here. Morever, even at the summary-judgment stage of litigation, "the same-actor inference is permissive, not mandatory, and even if the same individuals made both decisions, the Court would not be compelled to give [the defendant] the benefit of the inference." Memnon v. Clifford Chance US, LLP, 667 F.Supp.2d 334, 351 (S.D.N.Y.2009); see also Copeland v. Rosen, 38 F.Supp.2d 298, 305 (S.D.N.Y.1999) ("The 'same actor' inference is not a necessary inference, it is only a plausible one, and decisions in this Circuit addressing it have warned that its use is not to become a substitute for a fact-intensive inquiry into the particular circumstances of the case at hand." (citing, inter alia, Grady, 130 F.3d at 560)).
As a matter of pleading, since plaintiff alleges in substance that after only one day she was replaced in her new job by someone of a different race who had no experience, "the circumstances surrounding th[ese] action[s] permit an inference of discrimination." Santos v. Engelhard Corp., 2009 WL 2432736, *9 (S.D.N.Y. Aug. 6, 2009) (quoting Williams v. R.H. Donnelly Corp., 368 F.3d 123, 126 (2d Cir. 2004), and citing Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001) ("[M]ere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis.")); Rouse v. City of New York, 2009 WL 1532054, *7 (S.D.N.Y. June 2, 2009) ("[T]he successful applicants for the promotions that [plaintiff] was denied -- none of whom are black -- are sufficiently similarly situated to [plaintiff] to support 'at least a minimal inference' that the disparate treatment may be attributable to racial discrimination.") (citation omitted); Singleton v. Fed. Bureau of Prisons, 2006 WL 1329712, *5 (E.D.N.Y. May 16, 2006) (plaintiff established a prima facie case by showing that "both jobs went to individuals not members of his protected class"). Plaintiff's allegations suffice to state a claim for racially motivated demotion, and hence justify denial of defendant's motion to dismiss this claim on the basis of inadequate pleading.
2. Disparate Treatment/Hostile Work Environment
Plaintiff claims to have suffered "unequal terms and conditions of [] employment" (Compl. ¶ II(A)), presumably on the basis of her race. The only factual allegation -- demotion aside -- that may relate to this claim is plaintiff's assertion that her supervisor "made discriminatory comments about [her] wearing to[o] much make-up to other employee[]s, and not treating [her] as other employee[]s," (Compl. ¶ II(E)). Defendant argues that plaintiff's allegations are too conclusory to pass 12(b)(6) muster. We agree.
To state a claim for disparate treatment, plaintiff must allege facts that would permit a finding that she is in a protected class, that she suffered an adverse employment action and that the circumstances surrounding the action gave rise to an inference of discrimination, including that she was "similarly situated in all material respects to the individuals with whom she seeks to compare herself." Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 2012 WL 1918427, *1 (2d Cir. May 29, 2012); see also Delqado, 485 F. Supp.2d at 463. We assume that plaintiff also asserts discrimination claims under New York State and City law, which are subject to the same analysis as claims under Title VII. See, e.g., Bush, 452 F. Supp 2d at 405.
Plaintiff states that she was criticized for wearing too much makeup, but there is no basis from this bare allegation to infer that these comments involved racially discriminatory animus. In any event, a supervisor's critical comments do not amount to an adverse employment action. See, e.g., Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (criticism of an employee is not an adverse employment action); Scott v. City of N.Y. Dep't of Corr., 641 F. Supp.2d 211, 231 (S.D.N.Y. 2009), aff'd, 445 Fed. App'x 389 (2d Cir. 2011) (verbal abuse typically insufficient to constitute adverse employment action); Teachout v. N.Y. City Dep't. of Educ., 2006 WL 452022, *13 (S.D.N.Y. Feb. 22, 2006) ("Negative comments . . . are not, standing alone, adverse employment actions, because mere comments do not materially affect employment."); Smalls v. Allstate Ins. Co., 396 F.Supp.2d 364, 371 (S.D.N.Y. 2005) ("[B]eing yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments . . . do not rise to the level of adverse employment actions."). The only other allegation that plaintiff offers is the conclusory and unenlightening assertion about defendant "not treating plaintiff as other employees." (Compl. ¶ II(E)). This bare statement does not allege any adverse action by defendant, much less any discriminatory animus that might have motivated such unarticulated adverse action. It, too, plainly does not state a viable claim.
In view of plaintiff's pro se status, we could also read her allegations about a superior's comments concerning her makeup to reflect an effort to state a hostile-work-environment claim, which does not require proof of an adverse employment action. See Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). Such a claim would not survive on the current pleading, however, since the cited comment does not meet the stringent standards for demonstrating a hostile-work-environment claim. Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness. See Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999); accord Robins v. N.Y. City Bd. of Educ., 2010 WL 2507047, *11 (S.D.N.Y. June 21, 2010); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Here, plaintiff's allegations do not meet either standard.
D. State-Law Claims
Defendant moved to dismiss all of plaintiff's federal-law claims for failure to exhaust administrative remedies, but made no such argument with respect to plaintiff's state-law claims under the NYSHRL and the NYCHRL. While we recommend that all of plaintiff's federal-law claims be dismissed on the basis that plaintiff failed to exhaust her administrative remedies, and that her federal and state claims regarding age discrimination and disparate treatment/hostile work environment be dismissed for failure to state a claim, we have found that her race discrimination claim regarding her demotion passes muster on this motion. Thus, her state-law claims for discriminatory demotion, analyzed under the same standard as Title VII claims, also pass muster, and defendant has not asserted that they are barred by a failure to exhaust administrative remedies or to comply with other procedural requirements. Accordingly, those claims survive, and we must decide whether this court should exercise supplemental jurisdiction over them.
A district court has discretion to decline to exercise supplemental jurisdiction over state-law claims after dismissal of all claims over which it had original jurisdiction. 28 U.S.C. § 1367(c)(3). The Second Circuit has held that, in general, "if a plaintiff's federal claims are dismissed before trial, the state law claims should be dismissed as well." Oneida Indian Nation of N.Y. v. Madison Cnty., 665 F.3d 408, 437 (2d Cir. 2011); accord Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998). Factors the court should consider include "the values of judicial economy, convenience, fairness, and comity." Mabry v. Neighborhood Defender Serv., 769 F. Supp.2d 381, 402 (citing, inter alia, Klein & Co. Futures, Inc. v. Bd. of Trade, 464 F.3d 255, 262 (2d Cir. 2006)). Moreover, "in the usual case in which all federal-law claims are eliminated before trial . . . [those factors] will point toward declining to exercise jurisdiction over the remaining state-law claims." Id.
We have recommended that all of plaintiff's federal claims under Title VII and the ADEA be dismissed with leave to replead. Given such dismissal, and upon consideration of the relevant factors in this case, we recommend that the court decline at this time to exercise supplemental jurisdiction over any remaining state-law claims under the NYSHRL or the NYCHRL. See, e.g., id. at 402 (declining to exercise supplemental jurisdiction over plaintiff's claims under NYSHRL and NYCHRL after dismissal of federal claims); Burchette v. Abercrombit & Fitch Stores, Inc., 2010 WL 1948322, *12 (S.D.N.Y. May 10, 2010) (declining to exercise supplemental jurisdiction over claims under NYCHRL after dismissal of federal claims). In the event that plaintiff successfully repleads one or more federal claims, she may assert her parallel state and city claims.
CONCLUSION
For the reasons noted, we recommend that defendant's motion to dismiss be granted with respect to all federal claims of race and age discrimination based on plaintiff's failure to allege in adequate fashion that she has exhausted her administrative remedies, and that her both her state and federal claims of age discrimination and race discrimination other than the claim based on her alleged demotion -- be dismissed for failure to state a claim. We recommend that the court decline to exercise jurisdiction over plaintiff's surviving state-law claims. We further recommend that the dismissal of plaintiff's claims be without prejudice and that plaintiff be given thirty days from the dismissal to serve and file an amended complaint if she can provide evidence of her exhaustion of administrative remedies and adequately allege a factual basis for one or more employment-discrimination claims.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Deborah A. Batts, Room 2510, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York, 10007-1312. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985), reh'q denied, 474 U.S. 1111 (1986); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(d). Dated: New York, New York
August 22, 2012
RESPECTFULLY SUBMITTED,
/s/_________
MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE The foregoing Report and Recommendation has been mailed today to: Ms. Tracy King
43 Ludwig Lane
Richmond, New York 10303 Philip K. Davidoff, Esq.
Ford & Harrison LLP
100 Park Avenue, Suite 2500
New York, New York 10017