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dismissing Title VII discrimination claim based on allegations that, inter alia, defendant transferred plaintiff to a more remote work location; denied plaintiff a key to supply room; required Plaintiff to wait 45 minutes to access the supply room; assigned plaintiff a vehicle that was frequently in the shop; and denied plaintiff new tools to be insufficient to allege adverse employment action
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17-CV-01137 (LDH) (LB)
2019-09-30
Colin SEALY, Plaintiff, v. STATE UNIVERSITY OF NEW YORK AT STONY BROOK, Defendant.
Colin Sealy, Brentwood, NY, pro se. Daniel Scott Hallak, Office of the New York State Attorney General, Patricia M. Hingerton, NYS Office of the Attorney General, Hauppauge, NY, Johane Severin, NYS Office of The Attorney General, New York, NY, for Defendant.
Colin Sealy, Brentwood, NY, pro se.
Daniel Scott Hallak, Office of the New York State Attorney General, Patricia M. Hingerton, NYS Office of the Attorney General, Hauppauge, NY, Johane Severin, NYS Office of The Attorney General, New York, NY, for Defendant.
MEMORANDUM AND ORDER
Lashann DeArcy Hall, United States District Judge Plaintiff Colin Sealy, proceeding pro se, brings the instant action against his employer, State University of New York at Stony Brook (the "University"), asserting claims for retaliation, discrimination, and hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. (Am. Compl. ("Compl."), ECF No. 32.) Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the amended complaint ("Complaint") in its entirety. (ECF No. 35.)
In his opposition brief, Plaintiff withdraws his claim under the New York State Human Rights Law. (Pl.'s Opp. Def.'s Mot. Dismiss ("Pl.'s Opp.") at 1, ECF No. 40.) Pursuant to Federal Rule of Civil Procedure 41(a)(2), the claim is dismissed with prejudice.
The following facts are taken from the complaint and are assumed to be true for the purpose of this order.
Plaintiff is black and originally from Barbados. (Compl. ¶ 2.) He began working for the University as a plumber and steam fitter on September 17, 1992. (Id. ) In January 2015, Plaintiff was transferred from the University's main campus to its Chapin complex. (Id. ¶ 3.) Since his transfer, Plaintiff has been unable to access various equipment and a supply room. (Id. ¶¶ 5-10.) Plaintiff was verbally reprimanded for not having the necessary parts to make certain repairs and complete work assignments. (Id. ¶¶ 12, 13, 19.) For some unspecified period, Plaintiff was required to utilize a work truck that was often under repair. (Id. ¶¶ 5, 14.) While Defendant provided Plaintiff with a newer truck to use in August 2015, by January 2016 that truck was reassigned to Plaintiff's colleague Tom Schirmuhly, who is white. (Id. ¶¶ 14-15.) Plaintiff was then reassigned the original truck, which was still in disrepair. (Id. ¶ 15.) After informing a colleague that he did not feel safe driving the truck, Plaintiff was assigned another truck, which he shared with an electrician assigned to his area. (Id. ¶ 16.) Plaintiff claims this made his job harder to do and had a negative impact on his efficiency and ability to complete assignments. (Id. ) Two years later, on July 12, 2018, Plaintiff was provided with "a relatively new truck." (Id. ¶ 42.)
On or about May 12, 2016, Plaintiff was threatened by a coworker, Rudy Cuskin, who Plaintiff believes was angry because Plaintiff would not provide him with a reference for a pistol permit. (Id. ¶ 23.) On or about September 22, 2016, Plaintiff was again threatened by Mr. Cuskin, who became angry that certain work needed to be completed on a project. (Id. ¶ 29.) Plaintiff does not specify the nature of either threat, but alleges that he reported both to his supervisor. (Id. ) According to the complaint, when Mr. Cuskin learned that Plaintiff had reported the threats, he again grew angry and threw a computer keyboard at Plaintiff. (Id. ¶ 30.) Plaintiff further alleges that, after he filed the instant action, Mr. Cuskin was reassigned to the Chapin complex in retaliation for Plaintiff's filing a complaint against Defendant. (Id. ¶¶ 34, 35.)
On or about April 25, 2017, Plaintiff was assigned to assess a clogged toilet. (Id. ¶ 38.) Several days later, Plaintiff was instructed to replace the toilets, at which time another individual, Ron Daniel, was instructed to "watch over [him]" while he worked. (Id. ) Then, on July 27, 2017, Plaintiff's supervisor asked him to initial a blank annual-performance evaluation form. (Id. ¶ 39.) Plaintiff found this unusual and demanded a copy of the form. (Id. ) On or about September 26, 2017, after a request for a new set of tools had been previously denied, Plaintiff was provided with a new set of tools. (Id. ¶ 40.) Plaintiff was required to sign for the tools, which he alleges other plumbers were not required to do. (Id. )
Between June 2015 and the beginning of 2018, Plaintiff was rarely offered plumbing-related overtime. (Id. ¶ 44.) In particular, in one instance, on or about April 7, 2016, Plaintiff was passed over for overtime for which his colleague Dennis Brinkman was called instead. (Id. ¶ 22.) After Mr. Brinkman could not complete the assignment, Plaintiff was called in the next day and completed the job. (Id. )
Plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("DHR") on April 15, 2016, and received a notice of right to sue from the Equal Opportunity Employment Commission ("EEOC") on December 5, 2016. (Id. at 6, 16, 17.) Plaintiff commenced this action on February 27, 2017.
STANDARD OF REVIEW
To withstand a Rule 12(b)(6) motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the alleged facts allow the court to draw a "reasonable inference" of a defendant's liability for the alleged misconduct. Id. While this standard requires more than a "sheer possibility" of a defendant's liability, id. , "[i]t is not the Court's function to weigh the evidence that might be presented at trial" on a motion to dismiss. Morris v. Northrop Grumman Corp. , 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, "the Court must merely determine whether the complaint itself is legally sufficient, and, in doing so, it is well settled that the Court must accept the factual allegations of the complaint as true." Id. (citations omitted).
Moreover, where, as here, a plaintiff is proceeding pro se, his pleadings "must be construed liberally and interpreted to raise the strongest arguments that they suggest." Sykes v. Bank of Am. , 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) ). A pro se complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp , 521 F.3d 202, 213–14 (2d Cir. 2008) (quoting Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)). This rule is "particularly so when the pro se plaintiff alleges that [his] civil rights have been violated." Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008) (citing McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004) ). Still, "even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level.’ " Jackson v. NYS Dep't of Labor , 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
DISCUSSION
I. Discrimination in Violation of § 1981
Plaintiff brings a claim against the University under § 1981 for employment discrimination on the basis of his race. However, the Supreme Court has long held that "the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units." Jett v. Dall. Indep. Sch. Dist. , 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (emphasis added). Even construing Plaintiff's § 1981 claim as one properly brought under § 1983 does not save his claim, as it is otherwise barred. See Dube v. State Univ. of N.Y. , 900 F.2d 587, 594-95 (2d Cir. 1990) (finding the Eleventh Amendment extends immunity not only to a state, but also applies to agencies of the State such as the State University of New York). That is, as a general rule, the Eleventh Amendment bars a citizen from bringing a suit against a state, or one of its agencies, unless the state has consented to such a suit or there is an express statutory waiver of immunity. Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 54-57, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Section 1983 was not intended to override a state's sovereign immunity. Dube , 900 F.2d at 594. And New York has not consented to § 1983 suits in federal court. Mamot v. Bd. of Regents , 367 F. App'x 191, 192 (2d Cir. 2010) (summary order). Therefore, Plaintiff's discrimination claim must be dismissed as the University is immune from suit.
II. Causes of Action under Title VII
A. National-Origin-Based Discrimination
Defendant maintains that Plaintiff's Title VII discrimination claim based on national origin must be dismissed due to Plaintiff's failure to exhaust his administrative remedies. (Mem. Law Supp. Def.'s Mot. Dismiss Am. Compl. ("Mot.") at 10-11, ECF No. 35-1.) Defendant is correct. Under law, prior to filing a federal lawsuit under Title VII, a plaintiff must file a charge with the EEOC within 300 days of the alleged discriminatory conduct. Lewis v. City of Chicago , 560 U.S. 205, 210, 130 S.Ct. 2191, 176 L.Ed.2d 967 (2010) (citing 42 U.S.C. § 2000e-5(e)(1) ). Although Plaintiff did file a charge with the DHR, which could potentially satisfy the filing requirement, that charge does not identify national original as a basis for discrimination by checking the corresponding box or otherwise. (Compl. at 20.) Indeed, Plaintiff complained that he was discriminated against based only on his "race/color or ethnicity." (Id. ) Thus, on its face, Plaintiff's DHR complaint fails to satisfy the exhaustion requirement with respect to any claim of discrimination on the basis of national origin.
That the Second Circuit has determined that "claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are reasonably related to those that were filed with [a state] agency" does not alter the Court's conclusion. Deravin v. Kerik , 335 F.3d 195, 200 (2d Cir. 2003) (quoting Legnani v. Alitalia Linee Aeree Italiane, S.P.A. , 274 F.3d 683, 686 (2d Cir. 2001) ). In his DHR complaint, Plaintiff alleges only that he was discriminated against because he is "black" and "report[ed] [an] incident." (Compl. at 20.) The DHR complaint contains no factual allegations regarding any purported discrimination on the basis of his national origin. Indeed, Plaintiff's DHR complaint does not even include information identifying his national origin, or the nationality of those Plaintiff claims were treated more favorably than him. Cf. Bailey v. Sunrise Senior Living Mgmt., Inc. , No. 16-CV-7184, 2017 WL 2371196, at *1, 2-3 (E.D.N.Y. May 31, 2017) (finding pro se plaintiff failed to set forth facts from which the court could infer a national-origin-based motivation where plaintiff did not identify his national origin and "left blank the spaces that call for [his] national origin"); see also Williams v. N.Y.C. Hous. Auth. , 458 F.3d 67, 70 (2d Cir. 2006) ("The central question is whether the complaint filed with the EEOC gave that agency ‘adequate notice to investigate discrimination on both bases.’ " (quoting Deravin , 335 F.3d at 202 )). Therefore, to the extent Plaintiff asserts a Title VII discrimination claim on the basis of his national origin, that claim is dismissed.
As Defendant aptly notes, there are no allegations upon which the Court could conclude that equitable tolling should apply. (Mot. at 10.)
B. Race-Based Discrimination
By its motion, Defendant also seeks dismissal of Plaintiff's race-based discrimination claim. Defendant maintains that the Court need not reach the merits of Plaintiff's claim, as Plaintiff fails to address Defendant's arguments for its dismissal. (Reply Mem. Law Further Supp. Def.'s Mot. Dismiss Am. Compl. ("Reply") at 2, ECF No. 41.) A review of Plaintiff's submission reveals that it is limited to arguments opposing dismissal of his hostile-work-environment and retaliation claims. In other words, Plaintiff has abandoned his race-based discrimination claim and it is therefore subject to dismissal. McNair v. Ponte , No. 16-CV-1722, 2019 WL 1428349, at *6 (S.D.N.Y. Mar. 29, 2019) (finding notwithstanding a plaintiff proceeding pro se "[a] court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed" (internal quotation marks and citations omitted)). With that said, even if Plaintiff had not abandoned the claim, it would otherwise be ripe for dismissal, as it is insufficiently pleaded.
A Title VII claim is analyzed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corporation v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). At the first step of this analysis, a plaintiff bears the burden of establishing a prima facie case of employment discrimination by showing that (1) he belongs to a protected class, (2) he was qualified for the position he held, and (3) he suffered an adverse employment action that (4) occurred under circumstances giving rise to an inference of discrimination. Terry v. Ashcroft , 336 F.3d 128, 138 (2d Cir. 2003). If the plaintiff makes out a prima facie case, the burden of production shifts to the defendant, who must proffer a legitimate, nondiscriminatory reason for the challenged employment action. Id. However, to survive a motion to dismiss, an employment-discrimination plaintiff need not plead a prima facie case of discrimination. Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Rather, a plaintiff must allege facts that plausibly support "that plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and [that offer] at least minimal support for the proposition that the employer was motivated by discriminatory intent." Littlejohn v. City of New York , 795 F.3d 297, 311 (2d Cir. 2015). Defendant does not challenge the first two elements of Plaintiff's discrimination claim. Defendant contends, instead, that Plaintiff has not sufficiently pleaded facts that would plausibly support the remaining two elements: (1) that Plaintiff suffered an adverse employment action; and (2) that the employer was motivated by discriminatory intent. (Mot. 12-18.)
A plaintiff "sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 85 (2d Cir. 2015) (citations omitted) ("An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities." (quoting Terry , 336 F.3d at 138 )). Quintessential examples of materially adverse employment actions include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation. Id. (internal citations and quotations omitted). Of particular relevance here, the Second Circuit has held that "[e]veryday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions within the meaning of Title VII." La Grande v. DeCrescente Distrib. Co. , 370 F. App'x 206, 211 (2d Cir. 2010) (summary order) ("Instead, an actionable adverse employment action is ‘a materially significant disadvantage with respect to the terms of [plaintiff's] employment.’ " (quoting Williams v. R.H. Donnelley, Corp. , 368 F.3d 123, 128 (2d Cir. 2004) ). Even under the most liberal reading of the complaint, the Court is compelled to conclude that most of Plaintiff's allegations fall into these categories of non-actionable conduct. (See, e.g. , Compl. ¶¶ 3, 8, 10, 14, 38-40 (alleging Plaintiff was transferred from the main campus to the Chapin complex; Defendant denied Plaintiff a key to supply room; Defendant required Plaintiff to wait 45 minutes to access the supply room; Defendant assigned Plaintiff a vehicle that was frequently in the shop; Defendant directed Mr. Daniel to "watch over" Plaintiff while he worked; Defendant requested that Plaintiff sign a blank annual performance evaluation form; Plaintiff was required to "sign" for tools; and Defendant denied Plaintiff new tools)).
Plaintiff alleges that the Chapin complex was "a less desirable, more remote location" than the University's main campus. (Pl.'s Opp. at 3.) These allegations, of course, do not demonstrate that the transfer had a material adverse effect on Plaintiff's employment. See La Grande , 370 F. App'x at 211 (noting that that "[e]veryday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions").
The Court recognizes that a negative performance evaluation could be deemed an adverse employment action if it has other negative consequences that affect the plaintiff's employment. E.g., Dimitracopoulos v. City of New York , 26 F. Supp. 3d 200, 214 (E.D.N.Y. 2014) (" ‘[N]egative employment evaluation letters may ... be considered adverse,’ if they trigger other negative consequences in the terms and conditions of the plaintiff's employment, qualifying as a materially adverse." (quoting Treglia v. Town of Manlius , 313 F.3d 713, 720 (2d Cir. 2002) )). However, not only has Plaintiff failed to allege that he received any negative evaluations, he has not asserted any facts to suggest the blank evaluation form triggered any other negative consequences.
The complaint does include at least one allegation that could plausibly be construed as an adverse employment action—the denial of overtime opportunities. (See Compl. ¶ 44); see also Rivers v. N.Y.C. Hous. Auth. , 176 F. Supp. 3d 229, 252 (E.D.N.Y. 2016) ("A deprivation of the opportunity to earn overtime can be an adverse employment action."). However, even if Plaintiff's allegations concerning overtime (or other alleged conduct by Defendant for that matter) were sufficient to allege an adverse employment action, Plaintiff has not sufficiently pleaded that the conduct occurred under circumstances giving rise to an inference of discrimination. Plaintiff highlights two instances where he was denied overtime opportunities. In one instance, he alleges the overtime opportunity was given to another employee, Mr. Brinkman, and in another instance, he simply alleges that given the scope of a waste water leak, he should have been called to the assignment sooner, which would have resulted in overtime pay. (Compl. ¶¶ 22, 28.) Nothing about these allegations allows for the reasonable inference—based on either direct or indirect evidence—that Plaintiff's race was a motivating factor in the alleged denial of overtime opportunities. See Offor v. Mercy Med. Ctr. , 676 F. App'x 51, 53 (2d Cir. 2017) (summary order) (affirming dismissal where plaintiff conclusorily alleged that she was mistreated because of her race and plaintiff otherwise "allege[d] no facts to show that [the defendants] were driven by discriminatory animus"). For example, Plaintiff does not allege that Defendant made any comments concerning his race that would suggest that race played a role in any alleged denial. See, e.g., Greene v. Brentwood Union Free Sch. Dist. , 966 F. Supp. 2d 131, 140 (E.D.N.Y. 2013) (granting summary judgment where, among other bases, the comments were not probative of the defendants' motive for taking action against plaintiff and were "remote and oblique" in relation to the adverse employment action (quoting Tomassi v. Insignia Fin. Grp., Inc. , 478 F.3d 111, 115 (2d Cir. 2007), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ). Likewise, Plaintiff has failed to plead facts that a similarly situated person from outside of his protected class was given the overtime opportunity in his place. See Littlejohn , 795 F.3d at 312 ("[A]dverse actions taken against employees who are not similarly situated cannot establish an inference of discrimination."). Plaintiff does not identify the race of Mr. Brickman, who was given the first overtime assignment, and as for the second purported denial, it appears from the pleadings that no other person was given the overtime opportunity in Plaintiff's stead. Plaintiff's Title VII discrimination claim must be dismissed.
C. Retaliation
To make out a prima facie case for retaliation under Title VII, a plaintiff must show: "(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." Littlejohn , 795 F.3d at 315-16 (quoting Hicks v. Baines , 593 F.3d 159, 164 (2d Cir. 2010) ). However, to survive a motion to dismiss, the plaintiff must merely allege facts that plausibly support an inference that: "(1) [the] defendants discriminated—or took an adverse employment action—against him, (2) ‘because’ he has opposed any unlawful employment practice." Vega , 801 F.3d at 90 (quoting 42 U.S.C. § 2000e-3(a) ). With all but one exception, Plaintiff fails to plead the requisite causal connection.
It is axiomatic that for any conduct to be deemed actionable as retaliation, it must occur after the protected activity. It is not altogether clear to what extent Plaintiff seeks redress for conduct that predates his protected activity. However, to remove all doubt, the Court considers only alleged conduct that occurred after the filing of Plaintiff's April 15, 2016 DHR complaint or the March 15, 2017 service of the instant action on Defendant. Accordingly, the alleged conduct at issue is: (1) Plaintiff's receipt of verbal threats from Mr. Cuskin on May 12, 2016 and September 22, 2016; (2) Plaintiff's being denied overtime; (3) Plaintiff's being "watch[ed] over" while he completed an assignment on April 25, 2017; (4) Plaintiff's being asked to sign a blank annual performance evaluation form on July 27, 2017; and (5) Mr. Cuskin's March 2, 2017 reassignment to the Chapin complex. Although each of these acts post-dates a protected activity, Plaintiff's allegations do not allow for the inference that they occurred "because of" Plaintiff's participation in the protected activity.
A causal connection in retaliation claims can be shown "directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Littlejohn , 795 F.3d at 319 (quoting Gordon v. N.Y.C. Bd. of Educ. , 232 F.3d 111, 117 (2d Cir. 2000) ). There are simply no such allegations present here. Of course, Plaintiff may allege the requisite causal link "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." Id. (quoting Gordon , 232 F.3d at 117 ). Here, however, the temporal relationship between Plaintiff's protected activity and the alleged retaliatory act is simply too attenuated, and no other circumstantial evidence supports a causal link.
Although the Second Circuit has not established a bright-line rule, it is well settled that the protected activity and the adverse action must occur "very close" together. Perry v. NYSARC, Inc. , 424 F. App'x 23, 26 (2d Cir. 2011) (summary order) (quoting Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ). Accordingly, district courts in this circuit "have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation." Moore v. Verizon , No. 13-CV-6467, 2016 WL 825001, at *15 (S.D.N.Y. Feb. 5, 2016) (quoting Murray v. Visiting Nurse Servs. of N.Y. , 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007), and collecting cases); see also Marquez v. Starrett City Assocs. , 13-CV-2362, 2017 WL 4402434, at *7 (E.D.N.Y Sept. 30, 2017) (finding five-month time lapse between plaintiff's complaints and his suspension "temporally too remote ... to support a claim for retaliation").
Plaintiff alleges that he was denied an overtime opportunity on September 14, 2016; he was threatened by Mr. Cuskin on September 22, 2016; and Mr. Cuskin was reassigned to the Chapin complex on March 2, 2017. (Compl. ¶¶ 28, 29, 35.) This conduct occurred at least five months, but as long as eleven months, after Plaintiff filed his complaint with the DHR. Similarly, Plaintiff alleges that he was asked to sign a blank evaluation form on July 27, 2017, which occurred four months after the instant complaint was served on Defendant in this action. (Id. ¶ 39.) Although the May 12, 2016 threat by Mr. Cuskin occurred "very close" to the filing of Plaintiff's April 15, 2016 complaint with the DHR, Perry , 424 F. App'x at 26, Plaintiff's allegation belies any notion that the threat was because of any protected activity. Indeed, the allegations state specifically that Plaintiff believed that the May 12, 2016 threat occurred because Mr. Cuskin had been angry with Plaintiff because Plaintiff would not provide him with a reference for a pistol permit. (Compl. ¶ 23.)
Therefore, Plaintiff's claim for retaliation too must be dismissed.
D. Hostile Work Environment
To establish a hostile-work-environment claim under Title VII, a plaintiff must allege that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's 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, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ). The cause of action has both objective and subjective components. In other words, "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. In assessing the sufficiency of the allegations, a court must "consider the totality of the circumstances, including ‘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.’ " Id. (quoting Harris , 510 U.S. at 21, 114 S.Ct. 367 ). Against this backdrop, Plaintiff fails to adequately allege that Defendant subjected him to an environment that a reasonable person would find hostile or abusive.
Plaintiff claims that he was reassigned to the Chapin complex located across campus, denied certain overtime opportunities, prevented access to workplace storage facilities, provided with a work vehicle in disrepair, denied new tools, and threatened by a coworker. (Compl. ¶¶ 3, 5, 8, 10, 29, 45.) In seeking dismissal, Defendant argues that the incidents Plaintiff purports create a hostile work environment, instead "evidence Plaintiff's general dissatisfaction" with the conduct of the University and ultimately "fall short of the type or magnitude of conduct needed to sufficiently plead a claim of hostile work environment." (Mot. at 21.) Here again, Defendant is correct. See Littlejohn , 795 F.3d at 321 (finding that allegations supervisor made negative statements about the plaintiff, was impatient and used harsh tones with the plaintiff, distanced herself from the plaintiff when she was nearby, declined to meet with the plaintiff, replaced the plaintiff at meetings, and wrongfully reprimanded the plaintiff could not support a finding of a hostile work environment that was so severe or pervasive as to have altered the conditions of the plaintiff's employment).
Even if the Court were to find that some of Defendant's conduct was sufficiently severe or pervasive, Plaintiff has not alleged that Defendant's conduct was motivated by race, a requisite to a successful hostile-work-environment claim. In the absence of these sorts of allegations, Plaintiff's hostile-work-environment claim fails. See Lucio v. N.Y.C. Dep't of Educ. , 575 F. App'x 3, 5 (2d Cir. 2014) (affirming dismissal of hostile-work-environment claim where complaint pleaded no facts "that would allow a court to draw a reasonable inference that [the plaintiff] was subjected to any mistreatment or adverse action because of her race"). III. Leave to Amend
Plaintiff's opposition to Defendant's motion to dismiss includes new factual allegations that (1) Plaintiff experienced a workplace accident in October 2018 that caused him to go on medical leave and (2) Mr. Castro tore down Plaintiff's poster of President Obama and stated that "Black people ‘have too many rights’ and he wished society could return to the ‘way it used to be.’ " (Pl.'s Opp. at 7, 10.) While the Court is permitted to consider these new factual allegations, they are nonetheless deficient to save his claim from dismissal. Plaintiff has not plausibly alleged that Defendant denied Plaintiff the authority to call a carpenter for assistance was because of Plaintiff's race. Moreover, Plaintiff's allegation that Mr. Castro tore down Plaintiff's President Obama poster and "launched into a racially hostile rant," while reprehensible, is not sufficiently severe or pervasive to create the inference that Plaintiff was subjected to a hostile work environment. See Petrosino v. Bell Atl. , 385 F.3d 210, 223 (2d Cir. 2004) ("Simple teasing, offhand comments, or isolated incidents of offense conduct (unless extremely serious) will not support a claim of discriminatory harassment."); Littlejohn , 795 F.3d at 321 ("The incidents complained of must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." (citation omitted)); Awad v. City of New York , No. 13-CV-5753, 2014 WL 1814114, at *7 (E.D.N.Y. May 7, 2014) (finding a single episode of preventing the plaintiff from writing up another employee and sending an interoffice memorandum requesting the plaintiff's demotion did not give rise to a hostile-work-environment claim where actions did not "substantially interfere with or impair" the plaintiff's ability to do his job). But see La Grande , 370 F. App'x at 210-11 (finding plaintiff stated a claim for hostile work environment based on race where a coworker made racially derogatory comments, he was threatened with termination after complaining about the incident to human resources, and a manager physically threatened him and called him "nigger"); Williams v. N.Y.C. Hous. Auth. , 154 F. Supp. 2d 820, 825-26 (S.D.N.Y. 2001) (finding African-American plaintiffs sufficiently alleged a hostile work environment where their white supervisor hung a noose in his office for three days).
Plaintiff requests leave to file a second amended complaint in order to add: (1) a § 1983 claim against Mr. Sabia; and (2) a retaliation claim based on Plaintiff's October 2018 request for a carpenter's assistance with a repair assignment was denied. (Pl.'s Opp. at 17-20.) Although Plaintiff identifies the allegations and causes of action he intends to include in his amended complaint, he does so only generally. Plaintiff has not provided the Court with a formal motion setting forth a legal basis for amending his complaint, nor has Plaintiff provided the Court with a proposed amended complaint. For these reasons, Plaintiff's request may be rightly denied. See In re Tamoxifen Citrate Antitrust Litig. , 466 F.3d 187, 220 (2d Cir. 2006) ("It is within the court's discretion to deny leave to amend implicitly by not addressing the request when leave is requested informally in a brief filed in opposition to a motion to dismiss."), abrogated on other grounds by F.T.C. v. Actavis, Inc. , 570 U.S. 136, 133 S.Ct. 2223, 186 L.Ed.2d 343 (2013) ; see also Malin v. XL Capital, Ltd. , 312 F. App'x 400, 403 (2d Cir. 2009) (summary order) (affirming denial of leave to replead where plaintiff, among other things, (1) did not make a formal motion for leave to amend and (2) did not proffer an amended pleading for the district court's review).
Moreover, although Rule 15(a) provides that leave to amend should be freely given, the Second Circuit has consistently held that "it is within the sound discretion of the district court to grant or deny leave to amend." Morency v. NYU Hosps. Ctr. , 728 F. App'x 75, 76 (2d Cir. 2018) (summary order) (quoting McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir. 2007) ). "The liberality with which a court grants leave to amend does not impart to litigants the privilege of re-shaping their legal theories endlessly." Id. (citations omitted). The Court has already provided Plaintiff one opportunity to amend (and identified the deficiencies in need of remedy) (ECF No. 23), and having considered the additional allegations Plaintiff seeks to include in an amended complaint, the Court finds another amendment would be futile. As such, Plaintiff's request for leave to file an amended complaint is denied.
Notably, Plaintiff's proposed retaliation claim based on an October 2018 denial of carpenter assistance occurred over nineteen months after Plaintiff filed his DHR complaint. This is far too attenuated to be actionable.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is GRANTED. Plaintiff's claims for retaliation and hostile work environment under Title VII and the NYSHRL are dismissed with prejudice. Plaintiff's claim for racial discrimination in violation of 42 U.S.C. § 1981 is dismissed without prejudice.
SO ORDERED: