Rivas v. New York State Lottery

MOTION to Dismiss for Failure to State a Claim

N.D.N.Y.March 8, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ZELMA RIVAS, Plaintiff, -against- NEW YORK STATE LOTTERY, Defendant. NOTICE OF MOTION 16-CV-1031 (BKS/DJS) PLEASE TAKE NOTICE that upon the accompanying memorandum of law, Defendant, New York State Lottery, on May 4, 2017, at 10:00 a.m., or as soon thereafter as counsel can be heard, will make a motion before the Hon. Brenda K. Sannes at the United States District Court, Northern District of New York, Syracuse, New York, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order granting Defendant’s Motion to Dismiss Plaintiff's Complaint in its entirety, together with such other or further relief as may be just. PLEASE TAKE FURTHER NOTICE that pursuant to Rule 7.1(b) of the Local Rules of Practice for the Northern District of New York, opposition papers, if any, shall be filed with the Clerk and served upon Counsel for the defendants not less than seventeen (17) days prior to the return date of the motion and that the failure to file opposition papers may be deemed by the Court as consent to the granting of the motion. Case 1:16-cv-01031-BKS-DJS Document 19 Filed 03/08/17 Page 1 of 2 Dated: Albany, New York ERIC T. SCHNEIDERMAN March 8, 2017 Attorney General of the State of New York Attorney for Defendant The Capitol Albany, NY 12224-0341 By: s/Joshua E. McMahon Joshua E. McMahon Assistant Attorney General, of Counsel Bar Roll No. 516821 Telephone: (518) 776-2603 Email: Joshua.McMahon@ag.ny.gov To: Zelma Rivas P.O. Box 4478 1516 Huntridge Drive Clifton Park, NY 12065 (518) 605-4386 Case 1:16-cv-01031-BKS-DJS Document 19 Filed 03/08/17 Page 2 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ZELMA RIVAS, Plaintiff, -against- NEW YORK STATE LOTTERY, Defendant. 16-CV-1031 (BKS/DJS) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant The Capitol Albany, New York 12224-0341 Joshua E. McMahon Assistant Attorney General, of Counsel Bar Roll No. 516821 Telephone: (518) 776-2603 Email: Joshua.McMahon@ag.ny.gov Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 1 of 12 i TABLE OF CONTENTS PRELIMINARY STATEMENT ..................................................................................................1 STANDARD OF REVIEW ...........................................................................................................1 ARGUMENT ..................................................................................................................................2 POINT I ..........................................................................................................................................2 PLAINTIFF’S COMPLAINT IS UNTIMELY POINT II .........................................................................................................................................3 PLAINTIFF’S COMPLAINT TO THE EEOC WAS UNTIMELY POINT III .......................................................................................................................................5 PLAINTIFF FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES POINT IV .......................................................................................................................................6 PLAINTIFF FAILS TO STATE A PRIMA FACIE CASE OF RETALIATION CONCLUSION ..............................................................................................................................9 Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 2 of 12 1 PRELIMINARY STATEMENT In this pro-se action brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), Plaintiff, Zelma Rivas, claims that she has been subjected to a litany of unlawful employment practices that first began when she was hired by Defendant, New York State Lottery,1 in November of 1995 and continued even after her termination in October of 2010. In particular, Plaintiff claims that she was discriminated against because of her race and national origin and subjected to a hostile working environment. Beginning in December of 2012, two years after her termination, she also claims that she was retaliated against because she had “reach[ed] out to [her] Employer and request[ed] assistance” in January of 2010 after experiencing a number of unspecified instances of “on-going threats” (Dkt. No. 1, at 54 of 57). Plaintiff’s Complaint is untimely because she failed to commence this federal action within 90 days of receiving a right-to-sue-letter from the Equal Employment Opportunity Commission (“EEOC”). Plaintiff’s Complaint is also barred because her charges with the EEOC were not filed within 300 days of the last alleged unlawful employment act. Finally, Plaintiff failed to exhaust her administrative remedies as to all Title VII claims involving specific incidents of discrimination or hostile work environment, and the Complaint fails to state a prima facie case of retaliation. STANDARD OF REVIEW To state a claim upon which relief can be granted, Plaintiff’s complaint must contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To adequately demonstrate entitlement to the relief sought, Plaintiff’s Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to 1 The New York State Division of the Lottery no longer exists, having been subsumed by the New York State Gaming Commission as of February 1, 2013. N.Y. Racing, Pari-Mutuel Wagering and Breeding Law § 117; L.2012, c.60, Part A, § 1. Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 3 of 12 2 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)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief (internal citations and punctuation marks omitted).” Id. at 679. “In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor (citations omitted).” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Courts are “obligated to construe a pro se complaint liberally (citations omitted).” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). ARGUMENT POINT I PLAINTIFF’S COMPLAINT IS UNTIMELY Title VII requires that a Plaintiff commence a federal action within 90 days of receiving an EEOC right-to-sue-letter. See 42 U.S.C. §2000e-5(f)(1)(“within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved”). “This requirement should be strictly enforced and not extended ‘by even one day.’” Holmes v. NBC/GE, 914 F. Supp. 1040, 1042 (S.D.N.Y. 1996)(quoting Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir.1984); accord Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982)). While Courts presume that right-to-sue letters Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 4 of 12 3 were mailed on the date shown on the notice, and that a Plaintiff received a right-to-sue notice within three days after the EEOC mailed same, see Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-526 (2d Cir.1996), that presumption is rebuttable. Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011)2010 WL 2680427, at *2. Plaintiff’s Complaint alleges that she received a Notice of Right to Sue from the EEOC in this case on May 24, 2016 (see Dkt. No. 1, at 4 of 57; see also Dkt. No. 1-1). In order to timely comply with the 90-day requirement, Plaintiff was required to have filed her pleadings in this matter by August 22, 2016. However, Plaintiff did not file until August 23, 2016, and the Complaint does not contain any information or allegations that would warrant the “rare and exceptional” application of the equitable tolling provisions. Martinez v Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015). Accordingly, Plaintiff’s Complaint must be dismissed. See, e.g., Moscowitz v. Brown, 850 F. Supp. 1185, 1192 (S.D.N.Y. 1994)(action untimely even where filed 91 days after receipt of the right-to-sue letter). POINT II PLAINTIFF’S COMPLAINT TO THE EEOC WAS UNTIMELY Before commencing any Title VII action, a Plaintiff must first file an EEOC charge within the statutory time period. See 42 U.S.C. § 2000e-5(e); see generally Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). “In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days.” Mudholkar v. University of Rochester, 261 Fed. Appx. 320, 322-323 (2d Cir. 2008); see 42 U.S.C. § 2000e-5(e). Failure to file an administrative charge with the EEOC within this 300-day period extinguishes the claim and prohibits recovery. See Butts v. New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 5 of 12 4 1401 (2d Cir. 1993). According to documentation submitted as part of her Complaint, Plaintiff was last employed by Defendant on October 18, 2010 (see Dkt. No. 1-6, at 21-22; see also Dkt. No. 1, at 39 of 57 [claiming that, as early as July of 2010, Plaintiff “no longer worked for the NYS Lottery”]). These allegations are confirmed in her EEOC charge, which states that she “worked f[or] the [New York State Lottery] from on or about 1995 to on or about 2010” (Dkt. No. 1-1, at 4). That charge, which Plaintiff submits as the operative EEOC charge in this matter (see Dkt. No. 1, at 4 of 57), was filed on or about May 5, 2016 (see Dkt. No. 1-1, at 4), or 2,026 days after Plaintiff’s last official date of employment with Defendant. Although Title VII retaliation causes of action may be based upon actions taken against a former employee following his or her termination from employment,2 see Robinson v. Shell Oil Co., 519 U.S. 337 (1997), here, the last instance of retaliation referenced in Plaintiff’s Complaint3 is alleged to have occurred on May 20, 2015 (see Dkt. No. 1, at 51 of 57), or 351 days prior to the date Plaintiff filed the operative EEOC charge4 (see Dkt. No. 1-1, at 4). As such, Plaintiff’s claims are time-barred and must be dismissed. 2 The same cannot be said for Title VII causes of action sounding in hostile work environment or discrimination, the particular incidents of which must be said to have been capable of “affect[ing Plaintiff’s] employment or alter[ing] the conditions of the workplace.” Ruggerio v. Dynamic Elec. System Inc., 12-CV-0100, 2012 WL 3043102, at * 7-9 (E.D.N.Y. July 25, 2012). 3 It is notable that Plaintiff’s 57 page Complaint does not contain a single allegation of an unlawful employment practice, including acts of retaliation, taken by Defendant after the November of 2010 arbitration hearing (see Dkt. No. 1, at 33-39) that upheld her termination. instead, Plaintiff alleges that a non-party, AAG Roger W. Kinsey, engaged other non-parties to stalk Plaintiff and engage in “dangerously painful workplace bullying, ridicule, intimidation, [and] harassment” (Id., at 39-46). 4 Plaintiff is not entitled to the benefit of the continuing violation exception, which provides that, “if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone (internal quotation marks omitted).” Chin v Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-156 (2d Cir. 2012). Plaintiff’s Complaint fails to allege sufficiently that Defendant’s conduct was part of a discriminatory policy or mechanism and, even if it did, Plaintiff does not establish, nor does she allege, that any acts or Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 6 of 12 5 POINT III PLAINTIFF FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES Even if Plaintiff’s Complaint were timely, all Title VII claims involving specific incidents of discrimination or hostile work environment must nevertheless be dismissed because Plaintiff failed to exhaust her administrative remedies. “As a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC.” Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). To be actionable, a Title VII claim must be based upon those events that were the subject of the administrative charge and EEOC right-to-sue-letter. See, e.g., Legnani v Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). Moreover, generalized allegations of impropriety are insufficient to have alerted the agency of the need to investigate newly articulated, specific instances of an employer’s alleged misconduct; “if it were, the exhaustion requirement would be eviscerated.” Alfano v Costello, 294 F.3d 365, 382 (2d Cir. 2002). Plaintiff’s Complaint includes allegations that she was subjected to a hostile work environment and discriminated against on the basis of her “race or color” and “national origin” (Dkt. No. 1, at 2 of 57). As Plaintiff’s May 5, 2016, EEOC charge shows, however, such allegations were not raised at the administrative level, where Plaintiff appears to have instead limited her claims to those involving retaliation only (see Dkt. No. 1-1, at 4). Indeed, of the 10 options found in the “Discrimination Based On” portion of Plaintiff’s EEOC charge, which include options for “Race,” “Color” and “National Origin,” only the box marked “Retaliation” was incidents of discrimination, retaliation, or hostile work environment occurred within the limitations period. In any event, the continuing violation theory cannot be used to revive claims “otherwise barred” for failure “to act within 90 days of [a prior] EEOC right-to-sue-letter.” Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 207 (E.D.N.Y. 2014); see also, supra, at Point I. Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 7 of 12 6 checked (Id.). In contrast, Plaintiff’s Compliant checked boxes for “Termination of employment,” “Failure to promote,” “Unequal terms and conditions of employment” and “Retaliation.” In explaining the particulars of her EEOC charge, Plaintiff also noted that she “believe[d]” Defendant had been retaliating against her because she had previously “protested employment practices and policies that were prohibited by employment discrimination statutes,” but does not claim or allege any particular discriminatory acts or facts amounting to a hostile work environment (Id.). Further support for this conclusion can be found in the correspondence Plaintiff received from Buffalo’s EEOC Director, John E. Thompson, Jr., informing her that “the Commission [wa]s unable to conclude that the information [she provided] establishe[d] a violation of Federal law on the part of” Defendant (Id., at 2). Therein, Plaintiff’s EEOC charge is described as having raised allegations of “retaliation for filing a charge of discrimination against [Defendant] in the past” (Id., at 2). Having failed to raise specific incidents of discrimination or hostile work environment with the EEOC, Plaintiff failed to exhaust her administrative remedies. As such, Plaintiff’s Title VII causes of action sounding in discrimination and hostile work environment must be dismissed. POINT IV PLAINTIFF FAILS TO STATE A PRIMA FACIE CASE OF RETALIATION Finally, Plaintiff’s Complaint must be dismissed because she fails to state a prima facie case of retaliation. To establish a prima facie case of Title VII retaliation, 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.” McMenemy v City of Rochester, 241 F.3d 279, 282-283 (2d Cir. 2001). As to the causation element, Plaintiff “‘must show that retaliation was a ‘but-for’ cause of Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 8 of 12 7 the adverse action, and not simply a ‘substantial’ or ‘motivating’ factor in the employer’s decision.’” Panagopoulos v N.Y. State Dep’t of Transp., 13-CV-0459, 2016 U.S. Dist. LEXIS 38366, at *62 (N.D.N.Y. March 24, 2016) (quoting Zann Kwan v Andalex Grp. LLC, 737 F.3d 834, 8453 (2d Cir. 2013); accord University of Tex. Sw. Med. Ctr. v Nassar, 133 S. Ct. 2517, 2533 (2013)). Moreover, Plaintiff’s prima facie burden cannot be met with conclusory, subjective attributions of retaliatory animus. See Stroud v New York City, 374 F. Supp. 2d 341, 351 (S.D.N.Y. 2005). Instead, proof of causation is established either (1) “directly, through evidence of retaliatory animus directed against the Plaintiff by the defendant,” or (2) 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.” Gordon v New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Direct evidence of a Defendant’s retaliatory animus is established through statements or correspondence linking the alleged unlawful act to the protected activity. See Forest v N.Y. State Office of Mental Health, 13-CV-1762, 2015 U.S. Dist. LEXIS 152222, *22 (S.D.N.Y. Nov. 10, 2015). Indirect proof of causation may be established through evidence of the temporal proximity of an unlawful act to its attendant protected activity; however, “to establish a prima facie case . . . the temporal proximity must be very close.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Although the Second Circuit has “not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of [a protected activity] and an allegedly retaliatory action,” Espinal v Goord, 554 F.3d 216, 228 (2d Cir. 2009), “district courts in this Circuit have consistently held that a passage of two months . . . seems to be the dividing line (internal quotation marks omitted).” Panagopoulos, 2016 U.S. Dist. LEXIS 38366, at *72 (quoting Rizzo v Health Research, Inc., 12- Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 9 of 12 8 CV-1397, 2016 U.S. Dist. LEXIS 18707, at *16 (N.D.N.Y. Feb. 16, 2016)); accord Ruhling v Tribune Co., 04-CV-2430, 2007 U.S. Dist. LEXIS 116, at *23 (E.D.N.Y. Jan. 3, 2007)); see also Ponticelli v Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 436 (S.D.N.Y. 1998) (two-and-a-half months before termination). Here, Plaintiff fails to state a prima facie case of Title VII retaliation because, among other things, she fails to provide facts that, even if true, establish the requisite causal connection between any protected activity and alleged adverse employment actions. In particular, Plaintiff’s May 5, 2016, EEOC charge notes that, “[s]ince on or about December 2012, [Plaintiff] believe[d] that the [New York State Lottery] ha[d] been retaliating against [her] by engaging a third-party governmental entity to stalk and bully [her]” (Dkt. No. 1-1, at 4). As best Defendant can divine from the pleadings, the last “protected activity”5 included in the Complaint would have occurred in late January of 2010, when Plaintiff “reach[ed] out to [her] Employer and request[ed] assistance” after experiencing a number of unspecified instances of “on-going threats” (Dkt. No. 1, at 54 of 57). Prior to that, the only references Defendant can find that would rise to the level of protected activity under Title VII is a federal employment lawsuit Plaintiff appears to have filed sometime before February of 2001 and an even earlier “complaint [filed] in 1996 about the discrimination, harassment, workplace bullying, threats, [and] intimidation [she] was forced to 5 Defendant disputes that Plaintiff’s Complaint has adequately pled facts sufficient to establish that she engaged in a protected activity, or that Defendant was sufficiently aware of same under Title VII. While informal complaints may constitute protected activity, see Treglia v Town of Manlius, 313 F.3d 713, 720 n.5 (2d Cir. 2002), “[m]ere complaints of unfair treatment . . . are not protected speech under Title VII.” McNutt v Nasca, No. 1:10-CV-1301 (MAD/RFT), 2013 US Dist. LEXIS 7059, at **48-49 (N.D.N.Y. Jan. 17, 2013). Instead, Plaintiff must have clearly informed the employer that her complaint of unfair treatment was due to her membership in a protected class as opposed to a complaint of unfair treatment generally. Id.; see also Dinice-Allen v Yale-New Haven Hosp., No 3:06-CV-0675 (PCD), 2008 U.S. Dist. LEXIS 1802, at **11-13 (D. Conn. Jan. 9, 2008). Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 10 of 12 9 endure at the NYS Lottery” (Id., at 53 of 57). These facts are insufficient to establish the requisite causal connection between any of these alleged protected activities and the occurrence of any of the alleged retaliatory actions taken since December of 2012. Moreover, the approximately six months separating Plaintiff’s vague January 2010 request for assistance from the first, subsequent incident of alleged retaliation in July of 2010 (see Dkt. No. 1, at 44 of 57) far exceeds that which courts in this Circuit have required to establish temporal proximity. See, e.g., Panagopoulos, 2016 U.S. Dist. LEXIS 38366, at *72. Although not expressly raised in the Complaint, any claim that Plaintiff was retaliated against for filing the May 5, 2016, EEOC charge must also fail because Plaintiff has not alleged that any adverse employment actions were suffered after January 13, 2015 (Dkt. No. 1, at 50 of 57), or, at the latest, January 28, 2016 (Dkt. No. 1-1, at 4). See, e.g., Hill v. Rayboy-Brauestein, 467 F. Supp.2d 336, 362, n. 29 (S.D.N.Y. Nov. 9, 2006)(noting that a party cannot be retaliated against for a protected activity that has not yet been taken). CONCLUSION For all of these reasons, Plaintiff’s Complaint should be dismissed in its entirety. Dated: Albany, New York ERIC T. SCHNEIDERMAN March 8, 2017 Attorney General of the State of New York Attorney for Defendant The Capitol Albany, NY 12224-0341 By: s/Joshua E. McMahon Joshua E. McMahon Assistant Attorney General, of Counsel Bar Roll No. 516821 Telephone: (518) 776-2603 Email: Joshua.McMahon@ag.ny.gov Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 11 of 12 10 CC: Zelma Rivas P.O. Box 4478 1516 Huntridge Drive Clifton Park, NY 12065 (518) 605-4386 PRO SE Case 1:16-cv-01031-BKS-DJS Document 19-1 Filed 03/08/17 Page 12 of 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ZELMA RIVAS, Plaintiff, -against- NEW YORK STATE LOTTERY, Defendant. DECLARATION OF SERVICE 16-CV-1031 (BKS/DJS) I, JOSHUA E. MCMAHON, declare pursuant to 28 USC § 1746, that on March 8, 2017, true and correct copies of Defendant, New York State Lottery’s, Memorandum of Law in Support of Defendant’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6), Notice of Motion, and this Declaration of Service, were served upon Plaintiff, Zelma Rivas, by enclosing same in a securely sealed, postpaid envelope via First Class Mail at the address set forth below: Zelma Rivas P.O. Box 4478 1516 Huntridge Drive Clifton Park, NY 12065 Dated: March 8, 2017 Albany, New York s/ Joshua E. McMahon Joshua E. McMahon Case 1:16-cv-01031-BKS-DJS Document 19-2 Filed 03/08/17 Page 1 of 1