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holding failure to exhaust disability discrimination claim where before EEOC plaintiff claimed she was discriminated against "on the basis of her race and retaliated against [] for filing a complaint with the EEOC and filing a sexual harassment suit"
Summary of this case from Fiorillo v. United Techs. Corp.Opinion
12 Civ. 46 (WHP)
11-20-2012
ESSIE EDWARDS, Plaintiff, v. NEW YORK STATE UNIFIED COURT SYSTEM, Defendant.
Copies to: Essie Edwards #2A 21 West Mosholu Highway North Bronx, NY 10467 Plaintiff Pro Se Antonio Galvao, Esq. State of N.Y. Unified Court System 25 Beaver Street New York, NY 10004 Counsel for Defendant
MEMORANDUM & ORDER
:
Plaintiff pro se Essie Edwards ("Edwards"), an African-American woman, brings this Title VII employment discrimination action against the New York State Unified Court System ("UCS"). UCS moves to dismiss Edwards's amended complaint for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, UCS's motion to dismiss is granted.
BACKGROUND
I. Factual Allegations
Edwards worked at UCS from June 2, 1983 until her retirement in August 2010. (Amended Complaint, dated June 4, 2012 ("Am. Compl.") at 2, ¶ 2; Am Compl. at 10-11: Equal Employment Commission Charge of Discrimination, dated Feb. 24, 2011 ("EEOC Charge") at 2.) At the time of her retirement, she was an Assistant Court Analyst in the Bronx County Branch of the Civil Court of the City of New York. (Am. Compl. ¶ 1.)
In February 2001, Edwards filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that her supervisor, Joseph Monastra ("Monastra"), sexually harassed her. (Edwards v. State of N.Y. Unified Court Sys., EEOC Charge No. 160-A1-1010.) After the EEOC issued a Right to Sue letter, Edwards brought a Title VII action in the Southern District of New York. On September 7, 2004, the district court dismissed Edwards's complaint. (See Edwards v. OCA, 02 Civ. 2041 (JSR) (DFE), Dkt. No. 38.)
After Edwards's unsuccessful lawsuit, UCS assigned her to a desk on the same floor as Monastra. (EEOC Charge at 1.) Edwards's workspace remained near Monastra's from 2005 until her retirement in 2010. (EEOC Charge at 1.) According to Edwards, the proximity of her desk to Monastra's workspace was humiliating, and Monastra frequently took steps to ensure that Edwards knew "that he was in the immediate area." (Am. Compl. ¶ 14.) Although she frequently asked to be moved, UCS denied her requests. (EEOC Charge at 1.)
Edwards also contends that UCS supervisors subjected her to harsh treatment. For instance, UCS employee Alia Razzaq ("Razzaq") "yelled at" Edwards several times before November 2, 2007. (Am. Compl. ¶ 6.) On January 3, 2010, UCS employee Lydia Grima ("Grima") threatened Edwards with disciplinary action. (Am. Compl. ¶ 9.) Shortly thereafter, at some time before April 26, 2010, UCS employees Millie Velez ("Velez") confronted Edwards about her work "in an accusatory manner." (Am. Compl. ¶ 9.) Edwards also claims that supervisors monitored her "every move," that no one did her work for her when she was out of the office on vacation, and that she was instructed to "work continuously from 9 to 5 with [a] one hour lunch to catch up on work." (Am. Compl. ¶¶ 5, 7.) Edwards claims that no other UCS employee was treated so poorly and that working from 9 to 5 aggravated her carpal tunnel syndrome. (Am. Compl. ¶ 7.)
Finally, Edwards alleges that she was denied transfers and promotions available to white employees. (Am. Compl. ¶ 13.) She most recently requested a transfer on October 20, 2005. (Am. Compl. at 53.) UCS denied the request on October 25, 2005. (Am. Compl. at 52.) Edwards most recently applied for a promotion on January 25, 2008, when she sought a Court Analyst position in Criminal Court. (Am. Compl. at 43.) UCS denied Edwards's application on March 27, 2008. (Am. Compl. at 42.)
II. Procedural Background
On February 24, 2011, Edwards filed a second discrimination charge with the EEOC complaining of her placement near Monastra and her mistreatment at work. On November 21, 2011, the EEOC issued a Right to Sue Letter, determining that "[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the [discrimination] statutes." (Am. Compl. at 12: EEOC Dismissal & Notice of Rights, dated Nov. 21, 2011.) Edwards then commenced this action.
DISCUSSION
I. Legal Standard
On a motion to dismiss, a court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in plaintiff's favor. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). Nonetheless, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all of the allegations in the complaint are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (requiring plaintiff to plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [her claim]"). "To survive a 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 (2009) (quoting Twombly, 555 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). A court's "consideration [on a motion to dismiss] is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).
Because Edwards is a pro se litigant, this Court construes her complaint liberally and interprets it to raise the strongest arguments it suggests. See Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (a pro se litigant's submissions are held to "less stringent standards than [those] drafted by lawyers"). Nevertheless, the Court need not accept as true "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).
II. Timeliness
Before a plaintiff may bring a Title VII action in federal court, she must first timely file a charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); see also Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010).
In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the
employment practice; in all other States, the charge must be filed within 180 days. A claim is time barred if it is not filed within these time limits.Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
"The timeliness requirement of Title VII 'is analogous to a statute of limitations.'" McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 214 (2d Cir. 2006) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996)). The failure to timely file an EEOC charge precludes a claimant from bringing her Title VII claim in federal court. See Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 133-34 (2d Cir. 2003); see also McPherson, 457 F.3d at 214. Here, Edwards filed her EEOC Charge on February 24, 2011. Thus, any alleged discriminatory acts that occurred before May 1, 2010—300 days before her EEOC filing—cannot form the basis of Edwards's Title VII claim.
Failures to promote or transfer are discrete acts, and "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Morgan, 536 U.S. at 114. Here, all of the purportedly discriminatory failures to promote or transfer occurred before May 1, 2010. Indeed, Edwards's most recent request for a transfer and its subsequent denial occurred well before that date, as did UCS's most recent denial of a promotion. Because Edwards did not allege that UCS denied her a promotion or transfer within 300 days before she filed her complaint with the EEOC, her Title VII claims for failure to promote and transfer are untimely. And because UCS's purportedly unlawful failures to transfer or promote Edwards were discrete acts, Edwards may not rely on the "continuous violation" theory. See Ortiz-Moss v. N.Y.C. Dep't of Transp., 623 F. Supp. 2d 379, 390 (S.D.N.Y. 2008) ("[R]eliance on the continuous violation theory is inappropriate with respect to discrete acts of discrimination.").
Many of Edwards's allegations of retaliation are also time-barred. An employee claiming retaliation must file with the EEOC within 300 days of the employer's challenged conduct, and the employee must allege at least one adverse employment action within the applicable time period. Morgan, 536 U.S. at 109-10. In her amended complaint, Edwards claims that Grima threatened her with disciplinary action on January 3, 2010. But because Edwards filed with the EEOC more than 300 days later, Grima's conduct is not actionable. Similarly, Velez allegedly confronted Edwards before April 26, 2010, so her conduct cannot form the basis of a retaliation claim.
Edwards's amended complaint, however, contains some allegations of retaliatory conduct that occurred within the 300 days before she filed with the EEOC. Specifically, Edwards's allegations concerning her seating assignment, UCS's close monitoring of her behavior, and the requirements that she work through the day and complete the work assigned to her while on vacation may be timely. Accordingly, the court considers whether these allegations—accepted as true—state a plausible retaliation claim.
II. Retaliation
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any . . . employee[] . . . because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, "a plaintiff must show that a reasonable [person] would have found the challenged action materially adverse, which . . . means it well might have dissuaded a reasonable [person] from making or supporting a [complaint]." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal citations and quotation marks omitted). A plaintiff need not plead all the elements of a prima facie case to state a claim for retaliation. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12 (2002). But dismissal is warranted where a plaintiff fails to plead facts plausibly showing that she suffered adverse action. See Iqbal, 556 U.S. at 678; see also Milne v. Navigant Consulting, No. 08 Civ. 8964 (NRB), 2010 WL 4456853, at *7-*8 (S.D.N.Y. Oct. 27, 2010) (dismissing Title VII retaliation claim where plaintiff failed to allege facts plausibly showing adverse action). "An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience." White, 548 U.S. at 68.
Most of Edwards's claims lack factual allegations supporting the plausible inference that her employer took an adverse action against her. Edwards's proximity to Monastra amounts to nothing more than an annoyance or embarrassment. See White, 548 U.S. at 68. Further, being yelled at by her supervisors does not constitute an adverse action. See Katz v. Beth Isr. Med. Ctr., 95 Civ. 7183 (AGS), 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001) (being yelled at by supervisors is not an adverse action). That her supervisors expected her to complete work that accumulated while she was on vacation and that they told her to do her job throughout the day also fail to constitute adverse employment actions. See, e.g., Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 628 (S.D.N.Y. 2009) ("Plaintiff's claim that he was retaliated against by receiving an assignment that would normally take two and a half hours only fifteen minutes before he was due to leave for the day was a minor and isolated event and does not constitute an act that would reasonably likely deter a person from engaging in a protected activity."). Because Edwards fails to allege facts that suggest adverse action, her retaliation claim is dismissed.
III. Race and Gender Discrimination
An employer may not "discriminate against any individual with respect to [her] 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). 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 competent to perform the job or is performing his duties satisfactorily; (3) [she] suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on [her] membership in the protected class." Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 767 (2d Cir. 2002). The plaintiff must show that the adverse employment actions occurred "because of a protected characteristic. Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (internal quotation marks omitted). The plaintiff's claim must offer more than conclusory statements; the complaint must contain factual allegations supporting the plausible inference that the employer discriminated against the plaintiff because of the plaintiff's protected characteristic. See Alvarez v. Rosa, 11 Civ. 3818 (KBF), 2012 WL 651630, at *4 (S.D.N.Y. Feb. 28, 2012) (dismissing Title VII claim because "plaintiff fails to plead any allegations connecting her alleged harassment to a protected trait").
Edwards is an African-American woman. Her UCS supervisors assigned her to sit near Monastra, told her to work all day, yelled at her, and closely monitored her. Without alleging any facts that support a discriminatory motive, Edwards avers in a conclusory fashion that her employers "displayed [her] as a personal black joke in front of the staff," (Am. Compl. at 2), and that she feels that UCS treated her unfairly because of her race. (Am. Compl. at ¶ 15.) Edwards therefore "does nothing more than allege the familiar faulty syllogism: something bad happened to me at work; I am (fill in the blank with one or more protected categories); therefore it must have happened because I am (fill in the blank with the applicable protected categor[ies])." House v. Wackenhut Servs., Inc., 10 Civ. 9476 (CM) (FM), 2012 WL 4017334, at * 1 (S.D.N.Y. Aug. 20, 2012). Edwards's amended complaint, even when liberally construed, fails to link the alleged discriminatory conduct to a protected characteristic and therefore does not state a plausible discrimination claim.
Edwards's claim also fails to the extent that she alleges that UCS discriminated against her on the basis of sex. Edwards alleges that UCS assigned her to a seat near Monastra, and she also claims that her supervisors monitored her more closely than they monitored other employees and often chastised her. But Edwards alleges no facts supporting the inference that UCS or her supervisors took these actions because she is a woman. Accordingly, Edwards fails to state a Title VII claim based on sex. See House, 2012 WL 4017334, at *1.
IV. Hostile Work Environment
Edwards claims that over the course of several years, UCS placed her uncomfortably near Monastra, that her supervisors yelled at her and closely monitored her work habits, and that no one did her work while she was on vacation. Because some of this conduct continued up until the time she left, both the conduct before and after May 1, 2010, may be considered in Edwards hostile work environment claim. Morgan, 536 U.S. at 115 ("[C]onsideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period.").
To state a hostile work environment claim under Title VII, a plaintiff must "show that the complained of conduct; (1) is objectively severe or pervasive—that is, . . . creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [membership in a protected category]." Patane, 508 F.3d at 113 (internal quotation marks omitted).
To constitute a hostile work environment, the discriminatory conduct "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Leibovitz v. N.Y.C. Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001). "[T]he standard for establishing a hostile work environment is high." Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003). In evaluating a hostile work environment claim, courts consider "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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
The workplace indignities that Edwards alleges do not meet this high standard. Although Edwards was permanently placed near Monastra, the other incidents she complains of were too infrequent and isolated to constitute a hostile work environment. See e.g., Trotta v. Mobil Oil Corp., 788 F. Supp. 1336, 1350 (S.D.N.Y. 1992) (eleven incidents over the course of more than seven years too infrequent to create hostile work environment). Likewise, her complaints that her supervisors closely monitored her during the workday and that they sometimes chastised her are not sufficiently severe to create a hostile work environment. See Castro v. N.Y.C. Bd. of Educ. Pers., 96 Civ. 6314 (MBM), 1998 WL 108004, at *7 (S.D.N.Y. Mar. 12, 1998) ("[A]lthough reprimands and close monitoring may cause an employee embarrassment or anxiety, such intangible consequences are not materially adverse alterations of employment conditions."). Similarly, Edwards's allegation that no one did her work while she was on vacation and her placement near Monastra are no more than the everyday workplace grievances. They are not so severe as to create a hostile work environment. See Castro, 1998 WL 108004, at * 7. Accordingly, Edwards's hostile work environment claim fails.
V. Disability Discrimination
In her amended complaint, Edwards claims that her supervisors made her work all day without breaks, aggravating the pain she experiences as result of her carpal tunnel syndrome. Liberally construed, Edwards's pleading raises a claim of disability discrimination under the Americans with Disabilities Act ("ADA"). Nevertheless, Edwards did not place a checkmark on her pro se amended complaint form indicating that she intended to assert an ADA claim. And when, as here, a pro se plaintiff fails to check a prominently displayed box on a form complaint, courts have declined to construe the plaintiff's pleading to raise such a claim. See Veliz v. Collins Bldg. Servs., Inc., 10 CIV. 06615 (RJH), 2011 WL 4442712, at *5 n.5 (S.D.N.Y. Sept. 26, 2011) (declining to address potential state law where the pro se plaintiff failed to check a box for "[r]elated claims under New York Law"). For this reason, this Court declines to consider any ADA claim.
In any event, Edwards's ADA claim is procedurally barred because she did not exhaust her administrative remedies. A plaintiff must file ADA claims with the EEOC before bringing suit in federal court. 42 U.S.C. § 12117(a); see also Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). "Claims not raised in an EEOC complaint, however, may be brought in federal court if they are 'reasonably related' to the claim filed with the agency." Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006). "A claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made." Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001) (internal quotation marks omitted). The central question is whether the EEOC would have had adequate notice to investigate both the discrimination mentioned in the EEOC complaint and the discrimination that was not mentioned in the EEOC complaint. Williams, 458 F.3d at 70.
In her EEOC Charge, Edwards claimed that UCS discriminated against her on the basis of her race and retaliated against her for filing a complaint with the EEOC and filing a sexual harassment suit. She did allude to carpal tunnel syndrome. (See EEOC Charge at 1-2.) Edwards's allegations of disability discrimination are not, therefore, reasonably related to the race discrimination and retaliation claims she filed with the EEOC. Accordingly, to the extent Edwards raises an ADA claim, such a claim is barred.
CONCLUSION
For the foregoing reasons, UCS's motion to dismiss is granted, and Edwards's amended complaint is dismissed. The Clerk of the Court is directed to terminate all pending motions, mark this case as closed, and enter judgment for the New York State Unified Court System. Dated: November 20, 2012
New York, New York
SO ORDERED:
/s/_________
WILLIAM H. PAULEY III
U.S.D.J
Copies to:
Essie Edwards
#2A
21 West Mosholu Highway North
Bronx, NY 10467
Plaintiff Pro Se Antonio Galvao, Esq.
State of N.Y. Unified Court System
25 Beaver Street
New York, NY 10004
Counsel for Defendant