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finding that plaintiff failed to state a retaliation claim where plaintiff had "fail[ed] to allege sufficient facts regarding the timing of his complaints to establish causation"
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14 Civ. 6420 (AT)
02-26-2016
ALVIN ROGERS, Plaintiff, v. FASHION INSTITUTE OF TECHNOLOGY, JOYCE F. BROWN, STEVEN FRUMKIN, ERIC ODIN, GRISELDA GONZALEZ, TAUR D. ORANGE and MARIO FEDERICI, jointly and severally, Defendants.
MEMORANDUM AND ORDER :
In this employment discrimination action, Plaintiff pro se, Alvin Rogers, alleges that Defendants, Fashion Institute of Technology ("FIT"), Joyce F. Brown, Steven Frumkin, Eric Odin, Griselda Gonzalez, Taur D. Orange, and Mario Federici, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Defendants move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is GRANTED.
BACKGROUND
The following facts are taken from Plaintiff's complaint and opposition papers and are accepted as true for purposes of this motion. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering facts alleged in affidavit submitted by pro se plaintiff in opposition to motion to dismiss); see also, e.g., Flores v. N.Y.C. Human Res. Admin., No. 10 Civ. 2407, 2011 WL 3611340, at *1 n.1 (S.D.N.Y. Aug. 16, 2011) ("Because of [plaintiff's] pro se status, . . . the Court may consider factual allegations [plaintiff] makes in her opposition papers, in addition to the allegations in the complaint."); Rodriguez v. McGinnis, 1 F. Supp. 2d 244, 246-47 (S.D.N.Y. 1998) ("Although material outside a complaint generally is not to be taken into consideration on a motion to dismiss, the policy reasons favoring liberal construction of pro se complaints permit a court to consider allegations of a pro se plaintiff in opposition papers on a motion where, as here, those allegations are consistent with the complaint.").
In August 2001, Plaintiff, an African American, was hired to be a part-time adjunct professor in FIT's production management department. Compl. ¶¶ 8, 20, ECF No. 1. Plaintiff claims that throughout his tenure there he has been subjected to a various forms of inequitable treatment on the basis of his race. Id. ¶ 2. Plaintiff alleges that this treatment began in 2003, when he was placed on probation by Mario Federici, the chair of FIT's production management department. Id. ¶¶ 15, 30. Plaintiff claims that the probation was imposed in a manner inconsistent with FIT's standard practices and that he was relegated to "an inferior status in the department: i.e., he would not get to choose which courses to teach until after the entire faculty selected their courses." Id. ¶¶ 27-28, 31-32.
In early 2004, Plaintiff applied for a full-time position in the production management department. Id. ¶ 33. Plaintiff claims that although he was qualified for the job, Federici did not interview him. Id. Instead, Federici hired a white applicant, who Plaintiff alleges was less qualified and did not hold a bachelor's degree, a credential required for the position. Id. Despite being passed over for the full-time job, Plaintiff became eligible to be considered for Certificate of Continuous Employment ("CCE") tenure at FIT in the fall of 2004. Id. ¶¶ 27, 34. Plaintiff claims that at this stage FIT does not require current faculty members to reprove qualifications they needed to show when they were hired. Id. ¶ 35. Nevertheless, Federici informed Plaintiff that he would be fired unless he submitted proof of requisite industry experience. Id. ¶ 34. Plaintiff complied. Id. ¶ 36. Nevertheless, by letter delivered on or about January 11, 2015, Federici informed Plaintiff that he had been denied tenure. Id. ¶¶ 37-38. Federici also stated that human resources had determined that Plaintiff was not qualified. Id. ¶ 37.
The day after, Plaintiff spoke with the human resources department, and was told that human resources had concluded he was qualified, "but that Federici had unilaterally altered the letter" prior to sending it to Plaintiff. Id. ¶ 38. On January 25, 2005, FIT's vice president of academic affairs directed that Federici reinstate Plaintiff. Id. ¶ 39. Following reinstatement, FIT's president approved Plaintiff for CCE tenure. Id. ¶ 41. Although Federici's actions purportedly violated provisions of the collective bargaining agreement, he was not reprimanded. Id. ¶ 40. Later that year, Plaintiff decided to apply for a different full-time position in production management. Id. ¶ 42. However, Plaintiff states that when he informed Federici of his plans, Federici advised Plaintiff that he should not bother because he was not qualified. Id. The position went to a white faculty member who Plaintiff claims did not possess the requisite computer skills. Id.
Plaintiff alleges that other professors have complained of similar barriers to promotion at FIT, including Joyce Early, an African-American faculty member, who in 2006 sent a letter to human resources criticizing Federici's hiring decisions. Id. ¶ 43. However, Plaintiff claims that these practices persisted and that he was again passed over for a full-time position in April 2008. Id. ¶ 44. Although all the applicants were purportedly subjected to the same evaluation process, Federici nevertheless hired a white candidate who lacked experience in fashion production. Id.; Pl. Mem. 2, ECF No. 23. Following this rejection, Plaintiff sent letters to the hiring committee, which included Federici, as well as human resources, complaining of the decision. Compl. ¶ 45. Plaintiff did not receive a response. Id. A month later, Federici barred Plaintiff from teaching "a basic course in manufacture," a course he had taught before but for which he received low student evaluation scores. Id. ¶ 46. Plaintiff claims Federici's actions departed from common practice at FIT, as Plaintiff was not offered training or development to remedy his low evaluation scores. Id. ¶¶ 27, 46.
In 2010, Plaintiff began complaining about racially discriminatory employment practices at faculty meetings. Id. ¶ 47. In particular, Plaintiff questioned what he believed was favoritism afforded to white professors with low student evaluation scores, whom Plaintiff claims were not placed on probation, precluded from teaching courses, or otherwise disciplined as severely as similarly situated minority faculty members. Id. ¶¶ 27, 47; Pl. Mem. 2. In October 2011, Plaintiff met with Eric Odin, FIT's director of human resources services, Griselda Gonzalez, co-chair of FIT's diversity council, and Esther Oliveras, a representative from faculty services, to discuss his frustration related to denial of "full-time work and the ability to teach classes." Compl. ¶¶ 12-13, 48; Pl. Mem. 3. Odin acknowledged Plaintiff's concerns but stated that Odin did not believe the disparity was related to Plaintiff's race. Compl. ¶ 48. Nevertheless, Odin told Plaintiff that Odin would undertake an investigation. Id. On November 16, 2011, Plaintiff had a follow-up meeting with Odin and Gonzalez, at which Odin accused Plaintiff of unduly suggesting race played a role in the school's hiring decisions, and suggested that Plaintiff apply for the next full-time position available. Id. ¶ 49. The following day, Plaintiff met with Oliveras, who allegedly told Plaintiff that Odin's actions in resolving the matter did not constitute a formal investigation. Id. ¶ 50.
In May 2012, after receiving a master's degree, Plaintiff again met with Federici to discuss obtaining a full-time position. Id. ¶ 51. Plaintiff claims that Federici told Plaintiff that he was still not qualified and would never be qualified to work at FIT full-time. Id. On May 21, 2012, Plaintiff met with Federici and Steven Frumkin, dean of business and technology, complaining that Plaintiff "had been denied courses" and that Federici had wrongfully refused to promote Plaintiff. Id. ¶¶ 11, 53. Frumkin said he would look into the matter. Id. ¶ 53. At a follow-up meeting on July 14, 2012, Plaintiff accused FIT of racial discrimination. Id. ¶ 54. Frumkin responded that department chairs have considerable latitude in making hiring decisions and that Plaintiff should consider finding another job. Id. Plaintiff alleges that he received a similar response when, on several occasions, he voiced his concerns to FIT's president, Joyce F. Brown, who he claims declined to investigate and told him, "race isn't the issue." Id. ¶¶ 10, 62.
Plaintiff does not specify when he complained to Brown.
At the end of 2012, Plaintiff was given only three teaching hours per week in FIT's educational opportunities program ("EOP"). Id. ¶ 55. Plaintiff claims that a less-qualified white professor had been assigned more hours and that the time allocation was not in keeping with assurances made to Plaintiff by Taur D. Orange, the director of EOP, who told Plaintiff that he would be given an increased courseload. Id. ¶¶ 14, 56; Pl. Mem. 3-4. Plaintiff alleges that when he met with Orange to discuss the issue, Orange promised him more hours the following semester and stated that she was aware that Plaintiff was being treated unfairly because of his complaints. Compl. ¶ 57. On April 11, 2013, Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). Id. ¶ 60. On July 1, 2013, EOP course allocations were made, and, again, Plaintiff was not assigned additional courses. Id. ¶ 61.
In his complaint, Plaintiff also alleges that he was denied training by Aaron Schoor, the less-qualified white professor who he claims was unfairly assigned more EOP hours than he. Compl. ¶¶ 55-56. However, in his memorandum in opposition, Plaintiff clarifies that he did not seek training from Schoor, but rather wanted to discuss course objectives. Pl. Mem. 3-4.
DISCUSSION
I. Standard of Review
To withstand a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter . . . 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)). A plaintiff is not required to provide "detailed factual allegations" in the complaint, but must assert "more than labels and conclusions." Twombly, 550 U.S. at 555. Ultimately, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. The court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-movant. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
The court must "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). "The policy of liberally construing pro se submissions is driven by the understanding that implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks, brackets, and citation omitted). Although the court is "obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [the court] cannot invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
II. Title VII
Plaintiff asserts disparate treatment, retaliation, and hostile work environment claims under Title VII. Compl. ¶¶ 66-73, 105-10. As an initial matter, although Plaintiff asserts Title VII claims against all Defendants, "individuals are not subject to liability under Title VII." Patterson v. Cnty. of Oneida, New York, 375 F.3d 206, 221 (2d Cir. 2004) (internal quotation marks and citation omitted). Accordingly, the Title VII claims against the individual Defendants are DISMISSED.
A. Timeliness
"Title VII requires that individuals aggrieved by acts of discrimination file a charge with the EEOC within 180 or, in states like New York that have local administrative mechanisms for pursuing discrimination claims, 300 days 'after the alleged unlawful employment practice occurred.'" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78-79 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-5(e)(1)). In this context, "practice" means "a discrete act or single 'occurrence,'" and "a discrete retaliatory or discriminatory act 'occurred' on the day that it 'happened.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-11 (2002). Accordingly, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Id. at 114. "Under Title VII's continuing violation doctrine," however, "if a plaintiff has experienced a continuous practice and policy of discrimination, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Washington v. Cnty. of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (internal quotation marks, ellipsis and citation omitted). "Conduct that has been characterized as a continuing violation is 'composed of a series of separate acts that collectively constitute one unlawful employment practice.'" Id. at 318 (quoting Morgan, 536 U.S. at 111).
Plaintiff filed his charge with the EEOC on April 11, 2013. Thus, discrete acts of discrimination that occurred before June 15, 2012, 300 days prior to the filing date, are not actionable. Patterson, 375 F.3d at 220 ("[Section] 2000e-5(e)(1) 'precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period,' even if other acts of discrimination occurred within the statutory time period." (quoting Morgan, 536 U.S. at 105)). Plaintiff, whose complaint details grievances dating back to 2003, contends that the alleged discriminatory acts that occurred prior to June 15, 2012 remain viable pursuant to Title VII's continuing violation doctrine. Pl. Mem. 5, 8. Plaintiff is incorrect. The acts outlined in the complaint that predate June 15, 2012 are discrete and, therefore, not actionable. See Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 157 (2d Cir. 2012) (holding that discrete acts "which fall outside the limitations period [ ] cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period"). Accordingly, the only alleged acts of discrimination that can serve as a basis for Plaintiff's Title VII disparate treatment and retaliation claims are: (1) Frumkin's declining to address Plaintiff's race discrimination complaints; (2) Brown's refusal to investigate Plaintiff's concerns regarding promotion and advancement; and (3) FIT's failure to offer Plaintiff the opportunity to teach more courses.
The Court acknowledges, however, that even though many of the acts about which Plaintiff complains occurred outside the statute of limitations period, they may be used "as background evidence in support of a timely claim." Morgan, 536 U.S. at 113; see also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176-77 (2d Cir. 2005) ("[E]vidence of an earlier alleged [discriminatory or] retaliatory act may constitute relevant background evidence in support of [a] timely claim . . . [and] may be considered to assess liability on the timely alleged act." (internal quotation marks and citation omitted)).
Indeed, courts have routinely found acts of the variety that Plaintiff alleges occurred prior to June 15, 2012 to be discrete. See, e.g., Morgan, 536 U.S. at 114 (explaining that termination and failure to promote are discrete acts); Vega, 801 F.3d at 80 (explaining that unfavorable work assignments are discrete acts); Pietri v. N.Y.S. Office of Court Admin., 936 F. Supp. 2d 120, 134 (E.D.N.Y. 2013) (explaining that discriminatory disciplinary practices are discrete acts); Bey v. I.B.E.W. Local Union No. 3, No. 05 Civ. 7910, 2008 WL 821862, at *13 (S.D.N.Y. Mar. 26, 2008) (explaining that an alleged failure to investigate is a discrete act), aff'd sub nom. Bey v. I.B.E.W. Local Union #3 Union Representatives, 374 F. App'x 187 (2d Cir. 2010).
However, because a "hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice,'" the entire time period of the alleged hostile environment "may be considered by a court for the purposes of determining liability" so long as "an act contributing to the claim occurs within the filing period." Morgan, 536 U.S. at 117. Plaintiff alleges that the timely discriminatory acts described above paired with other time-barred conduct gave rise to a hostile work environment. Compl. ¶¶ 64, 67-68. It appears that Plaintiff is attempting to "piggyback the discrete adverse acts about which he complains onto hostile work environment in order to make them actionable." Ben-Levy v. Bloomberg L.P., 11 Civ. 1554, 2012 WL 2477685, at *5 (S.D.N.Y. June 26, 2012) (internal quotation marks and citation omitted), aff'd, 518 F. App'x 17 (2d Cir. 2013). In any event, because Plaintiff alleges that all these acts contributed to a single hostile work environment, the Court will assess the viability of the hostile work environment claim using the full scope of conduct alleged.
B. Disparate Treatment
1. Applicable Law
Title VII makes it unlawful for an employer 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). In the absence of direct evidence of discrimination, claims brought under Title VII are analyzed using the burden-shifting framework adopted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015). To establish a prima facie case of discrimination, a plaintiff must show that: "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
"The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement." Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). Accordingly, "at the initial stage of the litigation" in a Title VII case, "the plaintiff does not need substantial evidence of discriminatory intent." Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). Rather, "what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent." Id.; see also Vega, 801 F.3d at 87 ("[T]o defeat a motion to dismiss . . . in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision."). Ultimately, the complaint "need only give plausible support to a minimal inference of discriminatory motivation." Littlejohn, 795 F.3d at 311 (emphasis added). Although a plaintiff is not required to plead a prima facie case to withstand dismissal, "the elements of a prima facie case may be used as a prism to shed light upon the plausibility of the claim." Id. at 311 n.9 (quoting Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (internal quotation marks omitted)).
2. Application
Defendants argue that Plaintiff's disparate treatment claim should be dismissed because: (1) Frumkin and Brown's failure to investigate Plaintiff's discrimination claims do not constitute adverse employment actions; and (2) Plaintiff has not plausibly alleged that FIT's failure to offer Plaintiff an increased courseload was the result of discriminatory motivation and, even if he had, denial of teaching time does not qualify as an adverse employment action. See Def. Mem. 8-11, ECF No. 19. The Court agrees.
First, the Second Circuit has held with respect to retaliation claims brought under 42 U.S.C. § 1981 that "an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint." Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010) (explaining that "[a]n employee whose complaint is not investigated cannot be said to have . . . suffered a punishment for bringing that same complaint: Her situation in the wake of her having made the complaint is the same as it would have been had she not brought the complaint or had the complaint been investigated but denied for good reason or for none at all.") A failure to investigate may, however, constitute an adverse employment action "if the failure is in retaliation for some separate, protected act by the plaintiff." Id. at 722.
Plaintiff's allegations are akin to the facts presented in Fincher. Indeed, Plaintiff does not allege that Brown or Frumkin failed to investigate in response to a separate, protected act, but rather premises his claim on Defendants generally "ignoring [his] complaints of discrimination." Compl. ¶ 75. Such allegations fail to plausibly state a claim for discriminatory retaliation. See, e.g., Price v. Cushman & Wakefield, Inc., 808 F. Supp. 2d 670, 690 (S.D.N.Y. 2011) (holding that "failure to follow up on [plaintiff]'s claims of discrimination is not an adverse employment action."); Milne v. Navigant Consulting, No. 08 Civ. 8964, 2010 WL 4456853, at *8 & n.16 (S.D.N.Y. Oct. 27, 2010) (dismissing Title VII retaliation claim because "an employee's knowledge that her employer has declined to investigate a complaint cannot be viewed as a threat of future harm or a deterrent to making or filing a complaint" especially when "the complaint makes clear that plaintiff herself was not at all deterred by the lack of an investigation"). Because this conduct does not qualify as an adverse employment action under Title VII's broader definition of the term applicable to retaliation claims, it follows that it does not constitute an adverse employment action under the more circumscribed definition applied to discrimination claims. See, e.g., Nunez v. New York State Dep't of Corr. and Cmty. Supervision, No. 14 Civ. 6647, 2015 WL 4605684, at *17 (S.D.N.Y. July 31, 2015) (dismissing Title VII discrimination claim premised on alleged failure to investigate because the failure to investigate did not constitute an adverse employment action for purposes of a Title VII retaliation claim).
Even assuming Plaintiff alleged that these decisions not to investigate were distinct retaliatory acts, Plaintiff's "complaints were not 'separate' from h[is] earlier complaints," but instead were part "a single alleged retaliatory scheme." Williams v. Columbia Univ., 11 Civ. 8621, 2012 WL 3879895, at *3 (S.D.N.Y. Aug. 28, 2012) (dismissing sex discrimination retaliation claim under Title IX, which applies the same standard as Title VII, because all of plaintiff's complaints, which spanned multiple years, were related to the same grievance).
Likewise, the Court finds that the allegations related to FIT's failure to assign Plaintiff more courses are insufficient to state a claim. Even assuming FIT's denial of Plaintiff's request to teach additional courses constitutes an adverse employment action, Plaintiff's allegations do not plausibly support even a minimal inference of discriminatory motive. Indeed, although Plaintiff identifies a purportedly less-qualified white professor who was allegedly given a preferential course allocation, the complaint lacks sufficient factual allegations related to this faculty member's qualifications and professional standing plausibly demonstrating that he and Plaintiff are similarly situated. See, e.g., Mesias v. Cravath, Swaine & Moore LLP, 106 F. Supp. 3d 431, 437 (S.D.N.Y. 2015) (dismissing discrimination claim because plaintiff did not allege facts related to job title, responsibilities, and supervision that plausibly demonstrated that she and her alleged comparator were similarly situated). In fact, Plaintiff's allegations undermine such a showing, for he does not compare himself with another adjunct professor, but rather a "full-time professor." Pl. Mem. 8. Furthermore, Plaintiff claims that Orange, the director of EOP who controls course allocation, was sympathetic to his grievances. Compl. ¶ 56.
Although Defendants argue that work assignments generally do not qualify as adverse employment actions, Def. Mem. 11, work assignments may constitute adverse employment actions if they affect, inter alia, compensation or prospects for professional advancement, see Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006) (finding that actions affecting compensation satisfied adverse employment action prong); see also, e.g., Johnson v. Long Island Univ., 58 F. Supp. 3d 211, 223-24 (E.D.N.Y. 2014) (finding that plaintiff adequately alleged adverse employment action based on allegations that he was denied the "opportunity to earn additional compensation that other similarly situated employees were permitted to earn"); Nakis v. Potter, No. 01 Civ. 10047, 2004 WL 2903718, at *20 (S.D.N.Y. Dec. 15, 2004).
Therefore, Plaintiff's allegations are insufficient to state a disparate treatment claim under Title VII.
C. Retaliation
1. Applicable Law
Title VII prohibits discrimination against an employee "because he has opposed any practice made an unlawful employment practice." 42 U.S.C. § 2000e-3(a). "Retaliation claims under Title VII . . . are . . . analyzed pursuant to Title VII principles and the McDonnell Douglas burden-shifting evidentiary framework." Littlejohn, 795 F.3d at 315. "To establish a presumption of retaliation at the initial stage of a Title VII litigation, a plaintiff must present evidence that shows '(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.'" Id. at 315-16 (citation omitted); see also Vega, 801 F.3d at 90 ("[F]or a retaliation claim to survive . . . a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an adverse employment action—against him, (2) 'because' he has opposed any unlawful employment practice." (quoting 42 U.S.C.A. § 2000e-3(a))). "[T]he allegations in the complaint need only give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation." Littlejohn, 795 F.3d at 316.
"[I]n the context of a Title VII retaliation claim, an adverse employment action is any action that 'could well dissuade a reasonable worker from making or supporting a charge of discrimination.'" Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). With respect to causation, "the plaintiff must plausibly allege that the retaliation was a 'but-for' cause of the employer's adverse action." Id. But-for causation "does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive." Id. at 91 (internal quotation marks and citation omitted).
2. Application
Plaintiff alleges that he was subjected to adverse employment actions in retaliation for his complaints against FIT allegedly discriminatory practices. Compl. ¶¶ 106-07. Plaintiff does not specify which particular acts were taken against him in retaliation for his complaints, but the Court presumes that Plaintiff considers all the timely adverse actions described above, see supra Section II.A, to be retaliatory acts.
For reasons already discussed, see supra Section II.B.2, Frumkin and Brown's failure to investigate Plaintiff's complaints of discrimination do not qualify as adverse employment actions and, therefore, cannot serve as a basis for a retaliation claim. In addition, even assuming that Plaintiff's filing of an EEOC charge and his complaints regarding discriminatory practices to members of FIT's administration constitute protected activities, FIT's failure to offer an increased courseload cannot serve as a basis for his retaliation claim, for he has not plausibly alleged a causal connection between that and either the filing of the charge or his general complaints of discrimination.
The filing of a formal or informal complaint that challenges conduct that the employee reasonably believes violates Title VII is a protected activity for purposes of a retaliation claim. See, e.g., Summa v. Hofstra Univ., 708 F.3d 115, 126-27 (2d Cir. 2013).
First, although Plaintiff alleges that the EEOC charge was filed on April 11, 2013, only a few months before FIT denied Plaintiff the opportunity to teach additional courses on July 1, 2013, the notice of charge was not issued to FIT until July 31, 2013. Def. Mem. Ex. A. Plaintiff does not claim that he informed FIT of the filing of the charge or that FIT otherwise had knowledge prior to issuance of the notice. Absent such allegations, Plaintiff fails to allege a viable causal connection. See, e.g., Palummo v. St. Vincent's Med. Ctr., 4 F. App'x 99, 102 (2d Cir. 2001) (summary order) (affirming dismissal of retaliation claim because causation could not be established when, inter alia, the alleged retaliatory act took place before defendants' receipt of the EEOC's notice of charge).
The Court may consider the EEOC notice of charge. See, e.g., Henriquez-Ford v. Council of Sch. Sup'rs & Adm'rs, No. 14 Civ. 2496, 2015 WL 3867565, at *4 (S.D.N.Y. June 23, 2015) (considering EEOC notices of charge in resolving motion to dismiss).
In addition, Plaintiff does not allege a connection between any of his complaints to FIT faculty, including those to Frumkin and Brown, and the denial of teaching assignments in 2012 or 2013. Although Plaintiff may rely on temporal proximity to establish causation, Littlejohn, 795 F.3d at 319 ("A causal connection in retaliation claims may be shown . . . indirectly, by showing that the protected activity was followed closely by discriminatory treatment (citation omitted)), Plaintiff fails to allege sufficient facts regarding the timing of his complaints to establish causation, see, e.g., Jones v. Target Corp., No. 15 Civ. 4672, 2016 WL 50779, at *9 (E.D.N.Y. Jan. 4, 2016) (finding allegations of causal connection insufficient because the complaint did not "identify any facts regarding when the alleged events and adverse actions occurred"). Even when Plaintiff does allege facts indicating the timing of his complaints, the gaps in time are too long to establish causation. See, e.g., Williams v. City of New York, 11 Civ. 9679, 2012 WL 3245448, at *11 (S.D.N.Y. Aug. 8, 2012) ("The passage of even two or three months is sufficient to negate any inference of causation when no other basis to infer retaliation is alleged."). Indeed, Plaintiff alleges that he has consistently complained about race discrimination since 2010—two years before FIT failed to increase his courseload—and temporal proximity is generally measured from the time the employer has knowledge of the protected activity. See, e.g., Howard v. City of New York, 602 F. App'x 545, 549 (2d Cir. 2015) (finding that plaintiff failed to establish causation where he "began complaining of race discrimination . . . as early as October 2008 and continued to raise it for the ensuing ten months until [the adverse action occurred] on August 21, 2009").
Therefore, Plaintiff's allegations are insufficient to state a retaliation claim under Title VII.
D. Hostile Work Environment
1. Applicable Law
To plead a hostile work environment claim under Title VII, a plaintiff must allege facts plausibly demonstrating that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." Littlejohn, 795 F.3d at 320-21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted)). "This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive." Id. at 321 (internal quotation marks and citation omitted). Finally, a plaintiff must allege facts that plausibly show that the conduct complained of "creates such an environment because of . . . [a] characteristic protected by Title VII." Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001) (citation omitted).
2. Application
Plaintiff's hostile work environment claim is predicated on allegations that FIT higher-ups subjected him to racially discriminatory actions, including intimidation, denial of teaching assignments and opportunities for professional advancement, and inaction in the face of his complaints of discrimination. Compl. ¶ 67. Considering the totality of the circumstances, the Court finds that Plaintiff has not plausibly alleged facts sufficient to "support a finding of hostile work environment that is so severe or pervasive as to have altered the conditions of [his] employment." Littlejohn, 795 F.3d at 321.
For starters, Plaintiff must plausibly allege a basis to infer that Defendants took these unfavorable actions against him because of his race. Gregory, 243 F.3d at 692. In many instances, Plaintiff's allegations fail to connect the unfavorable personnel actions taken against him to his status as an African American. See Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002) ("Everyone can be characterized by . . . race . . .; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination.").
Moreover, Plaintiff fails to plausibly allege conduct of sufficient severity or pervasiveness to state a hostile work environment claim. First, the Second Circuit has explained that a failure to investigate does not "contribute[] to or constitute[] a hostile work environment," for such inaction does not "alter the terms and conditions of . . . employment." Fincher, 604 F.3d at 724. In addition, Plaintiff's allegations concerning FIT's failure to offer more course assignments to Plaintiff, its failure to promote Plaintiff, and its imposition of other obstacles to his professional advancement—which largely recast his timely and time-barred claims of disparate treatment—do not suggest the sort of objective hostility necessary to support a hostile work environment claim. See, e.g., Hughes v. Xerox Corp., 37 F. Supp. 3d 629, 646-48 (W.D.N.Y. 2014) (dismissing hostile work environment claim predicated principally on facially neutral allegations of disparate treatment over three years, including exclusion from meetings, loss of work duties, derision regarding career advancement, denial of promotional opportunities, and unfair targeting, because such allegations did not evince a sufficient degree of objective hostility); Parekh v. Swissport Cargo Serv., Inc., No. 08 Civ. 1994, 2009 WL 290465, at *5 (E.D.N.Y. Feb. 5, 2009) (concluding that plaintiff's complaints concerning "unfair disciplinary actions, shift changes, reduction in manpower, wrongfully withheld vacation time, failure to provide him with proper equipment, workplace transfers, failure to promote, and his termination" did not sufficiently suggest the degree of hostility or offensiveness required to withstand a motion to dismiss). Indeed, a hostile work environment claim "is a wholly separate cause of action designed to address other types of work place behavior, like constant jokes and ridicule or physical intimidation." Ben-Levy, 2012 WL 2477685, at *12 (internal quotation marks and citation omitted). Finally, the episodic instances of disparate treatment alleged—comprised of isolated acts spanning more than a decade—do not plausibly suggest harassment of sufficient regularity to state a hostile work environment claim. See, e.g., Johnson, 58 F. Supp. 3d at 225-26 (dismissing hostile work environment claim predicated on isolated adverse employment actions spread over two years).
Therefore, Plaintiff's allegations are insufficient to state a hostile work environment claim under Title VII.
E. Conclusion
Accordingly, Plaintiff's disparate treatment, retaliation, and hostile work environment claims under Title VII are DISMISSED.
III. Section 1981
A. Applicable Law
Plaintiff also asserts disparate treatment, retaliation, and hostile work environment claims under Section 1981, Compl. ¶¶ 74-80 111-16, which "outlaws discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment," Patterson, 375 F.3d at 224. Plaintiff's Section 1981 race discrimination claims are analyzed using the same substantive standards of liability as his claims under Title VII. Littlejohn, 795 F.3d at 312, 315, 320. However, a four-year statute of limitations applies to claims brought under Section 1981. Morales v. Cnty. of Suffolk, 952 F. Supp. 2d 433, 436 (E.D.N.Y. 2013) ("The statute of limitations for claims brought pursuant to [Section 1981] is also three years unless the claims arise out of a post-1990 Act of Congress such as the 1991 Amendments to [Section 1981] . . . in which case the statute of limitations is four years." (citing, inter alia, Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004))). In addition, individual liability exists under Section 1981. Patterson, 375 F.3d at 229. "[T]o make out a claim for individual liability under [Section 1981], a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action." Id. (internal quotation marks and citation omitted).
B. Application
Plaintiff's complaint was filed on August, 08, 2014, and, therefore, only acts that are alleged to have occurred after August 08, 2010 are pertinent to his Section 1981 claims. Accordingly, the following alleged acts are now within the Court's purview: (1) Odin's failure to properly investigate Plaintiff's discrimination claims; and (2) Federici's telling Plaintiff that he should not apply for a full-time position and that he would never be qualified for full-time position. Consideration of these additional acts, however, does not make Plaintiff's Section 1981 claims anymore viable than his Title VII claims.
Defendants indicate that equitable tolling may be warranted in this case. See Def. Mem. 7. On November 27, 2013, Plaintiff, who was counseled at the time, filed a complaint that covered substantially the same subject matter as his current complaint, and he claims that his attorney withdrew the complaint without his knowledge. See Pl. Mem. 4. Although there may be grounds for equitable tolling, the Court declines to address the issue, as tolling of the limitations period back to November 27, 2009 would not bring any additional acts within the scope of the Court's consideration.
First, for reasons discussed above, see supra Section II.B.2, Odin's alleged failure to properly investigate Plaintiff's discrimination claims does not constitute an adverse employment action and, therefore, cannot serve as a basis for a disparate treatment or retaliation claim under Section 1981. In addition, although Plaintiff claims he expressed interest in a full-time position but was told not to apply, "a plaintiff must allege that she 'applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she generally requested promotion.'" Hughes, 37 F. Supp. 3d at 643 (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998) (ellipsis omitted)). Plaintiff does not claim that he applied for the job, and, therefore, fails to allege an adverse employment action that could serve as a basis for a discrimination or retaliation claim. Finally, Plaintiff's Section 1981 hostile work environment claim fails for the same reasons as his Title VII hostile work environment claim. See supra Section II.D.2.
Because Plaintiff has not alleged facts sufficient to establish an actionable claim under Section 1981, the claims for individual liability necessarily fail. See, e.g., Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 688 (S.D.N.Y. 2012); Carris v. First Student, Inc., No. 13 Civ. 923, 2015 WL 5535807, at *26-27 (N.D.N.Y. Sept. 18, 2015).
C. Conclusion
Accordingly, Plaintiff's disparate treatment, retaliation, and hostile work environment claims under Section 1981 are DISMISSED.
IV. NYSHRL and NYCHRL
Plaintiff asserts disparate treatment, retaliation, hostile work environment, and aider and abettor claims under the NYSHRL and the NYCHRL. Compl. ¶¶ 81-104, 117-27. "[D]istrict courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims." Pension Benefit Guar. Corp. ex rel. Saint Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013) (internal quotation marks and citation omitted). As Plaintiff's claims under Title VII and Section 1981 have been dismissed and the factors of judicial economy, convenience, fairness, and comity do not favor retaining jurisdiction, the Court declines to exercise supplemental jurisdiction over Plaintiff's NYSHRL and NYCHRL claim, and those claims are DISMISSED without prejudice.
V. Leave to Replead
Although Plaintiff did not request leave to amend in the event of dismissal, "dismissals for insufficient pleadings are ordinarily with leave to replead." Stern v. Gen. Elec. Co., 924 F.2d 472, 477 (2d Cir. 1991). At this juncture, the Court cannot conclude that amendment would be futile, and, therefore, Plaintiff is GRANTED leave to amend his complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (recognizing that "[a] pro se complaint is to be read liberally" and that "the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated" (emphasis added)). Should Plaintiff decide to reassert his claims, he shall file an amended complaint by March 31, 2016. Failure to amend by that date may result in dismissal with prejudice. See Fed. R. Civ. P. 41(b). Plaintiff is advised that the amended pleading will replace the prior complaint in its entirety.
By letter dated October 15, 2015, Plaintiff requested leave to amend so that he may add allegations of recent discriminatory and retaliatory acts by Federici and representatives of Plaintiff's union. ECF No. 29. Plaintiff may incorporate these new allegations in his amended complaint. --------
CONCLUSION
For the reasons stated above, Defendants' motion to dismiss is GRANTED, and Plaintiff's claims are DISMISSED without prejudice.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this order and all unpublished decisions cited therein to Plaintiff pro se.
SO ORDERED. Dated: February 26, 2016
New York, New York
/s/_________
ANALISA TORRES
United States District Judge