Summary
holding that employer's yelling at and requiring employee to seek permission to use the washroom were petty slights or minor annoyances that did not rise to the level of materially adverse changes in employment
Summary of this case from Figurowski v. Marbil Inv'rs, LLCOpinion
13cv6628
08-19-2014
KWAME OZUKATA EL, Plaintiff, v. NEW YORK STATE PSYCHIATRIC INSTITUTE Defendant.
Copy mailed to: Kwame Ozukata El 2200 Tiebout Avenue #5F Bronx, NY 10457 Plaintiff pro se Copy sent via ECF to: Katherine Brady Dirks Jane R. Goldberg New York State Office of the Attorney General 120 Broadway New York, NY 10271 Counsel for Defendant
MEMORANDUM & ORDER
:
Plaintiff pro se Kwame Ozukata El filed this Title VII action for employment discrimination based on his race and gender. Defendant New York State Psychiatric Institute moves to dismiss El's claims. For the following reasons, Defendant's motion is granted.
BACKGROUND
The following facts, gleaned from the Complaint and attached documents, are accepted as true for the purposes of this motion. El, a black male, worked at NYSPI for over thirty years. (Compl. at 6-7.) In 2009, NYSPI began disciplinary proceedings against him. (Compl. at 8.) Later that year, NYSPI directed El to perform receptionist duties, despite his title. (Compl. at 7.) To ensure the reception desk was staffed at all times, NYSPI required El to seek permission from a supervisor to use the washroom. (See Compl. at 6.) In 2010, the disciplinary proceedings concluded with El's receipt of a Notice of Discipline. (Compl. at 8.) El filed an EEOC charge that same year. (Compl. at 3,) However he does not describe the basis for that charge. The EEOC conducted a full investigation but never notified El of its decision. (Compl. at 6.) After the investigation, the staff expressed "hostility and visible anger" toward El, (Compl. at 6,) the only black man working on that floor of the Audobon Clinic. (Compl. at 6.)
El's title was Mental Health Therapy Aide. (Opp'n at 5.)
The Audobon Clinic appears to be a unit of NYSPI.
In subsequent years, El experienced further difficulties. In 2011, NYSPI treated a racist white patient who cursed and demeaned El. (Compl. at 9.) El later found a sign on the front desk that advised him and two other black employees that the patient could go directly to her appointments without speaking to them. (Compl. at 9.) A white doctor told El this was for the patient's benefit. (See Compl. at 9.)
When El's mother passed away in July of 2012, he took a few days off. (Compl. at 6.) A white nurse called and asked him when he was returning. (Compl. at 6.) When El returned to work, he asked his supervisor for additional time off. (Compl. at 6.) He found the experience demoralizing, (Compl. at 6,) but does not allege he was denied additional leave.
Thereafter, El's actions were closely monitored. He alleges that staff members yelled at him and directed him to "shut up" when he asked questions. (Compl. at 3.)
In January of 2013, El's ex-girlfriend, a fellow employee, accused him of sexual harassment. (Compl. at 6; EEOC Charge, Dirks Decl., Ex. A, at 1, ECF No. 27.) According to El, rumors about their relationship caused some staff to view him with contempt. (Compl. at 6.) NYSPI either suspended or terminated El in June of 2013. (Compl. at 2-3; EEOC Charge 1.)
Because the Complaint and the attached Notice of Right to Sue letter reference El's recent EEOC charge, (Compl. at 3, 5,) and because El relies on the charge in bringing his Title VII claim, his 2013 EEOC charge is incorporated in the Complaint by reference. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also Muhammad v. N.Y.C. Transit Auth., 450 F. Supp. 2d 198, 204 (E.D.N.Y. 2006).
El also complains of a number of actions unrelated to his employment by NYSPI. For example, El alleges that the person who screens students to perform rotations at the clinic only admits white students. And El asserts the IRS has garnished his wages from 2008 through 2013 and has issued a "lock letter" prescribing his tax withholding rate.
El filed a second EEOC charge against NYSPI on June 25, 2013. (EEOC Charge 1.) In the charge, El alleged NYSPI had retaliated against him for his first EEOC charge by (1) directing him to conduct out-of-title work, (2) terminating him without warning, and (3) forcing him to find someone to cover the front desk before using the washroom. He also alleged an individual employee yelled at him in October of 2012. (EEOC Charge 1.) After receiving a right-to-sue letter dated July 31, 2013, (Compl. at 5,) El commenced this action, raising disparate treatment, hostile work environment, and retaliation claims under Title VII.
DISCUSSION
I. Legal Standard for a Motion to Dismiss
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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To determine plausibility, courts follow a "two-pronged approach." Iqbal, 556 U.S. at 679. "First, although 'a court must accept as true all of the allegations contained in a complaint,' that 'tenet' 'is inapplicable to legal conclusions,' and ' [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (alteration in original) (quoting Iqbal, 556 U.S. at 678). Second, a court determines "whether the 'well-pleaded factual allegations,' assumed to be true, 'plausibly give rise to an entitlement to relief.'" Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
Generally, on a motion to dismiss, "consideration 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)). However, "a district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion" to determine whether the pro se party's additional allegations may state a claim. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013).
Because El is a pro se litigant, this Court construes his complaint liberally and interprets it to raise the strongest arguments it suggests. See Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (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 Naionwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).
II. Whether El Exhausted His Administrative Remedies
A plaintiff must exhaust his administrative remedies before filing a Title VII claim. Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001). To exhaust, a plaintiff must file a written description of the unlawful employment practice with the EEOC or state or local agency within 300 days of its occurrence. 42 U.S.C. § 2000e-5(e)(1); Williams v. NYC Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (citations omitted). If the agency chooses not to undertake the charge, it sends the plaintiff a notice of right to sue letter, and the plaintiff then has 90 days to bring suit. 42 U.S.C. § 2000e-5(f)(1).
"Pursuant to a longstanding Work Sharing Agreement between the EEOC and the New York State Division of Human Rights," claims filed with the EEOC are considered filed with the state agency, "and accordingly a complaint filed within 300 days of the unlawful employment practice with the EEOC is timely." Anderson v. Davis Polk & Wardwell LLP, 850 F. Supp. 2d 392, 405 (S.D.N.Y. 2012).
El's Complaint includes claims for retaliation and disparate treatment for being moved into a secretarial position in 2009, being required to seek permission to use the washroom beginning in 2009, being subjected to hostile co-workers in 2010, the incident with a racist patient in 2011, and a July 2012 event involving his leave. All of these alleged events occurred more than 300 days before El filed his EEOC Charge on July 8, 2013. Having failed to timely exhaust retaliation and disparate treatment claims based on this conduct, El cannot raise them now.
But the inquiry for a hostile work environment claim may encompass incidents outside of the statute of limitations period where they are part of a "continuing violation"—a series of incidents in furtherance of an ongoing policy of discrimination. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002); Chin v. Port Auth. of NY & NJ, 685 F.3d 135, 155-56 (2d Cir. 2012). Alleging even related acts may be insufficient to plead the existence of an ongoing policy of discrimination. See Chin, 685 F.3d at 156 (citing Morgan, 536 U.S. at 113-15).
Here, the pre-2013 incidents El describes—assigning El receptionist duties in 2009, hostility by co-workers in 2010, enabling a racist patient to avoid speaking with him in 2011, an inquiry about his return date in July 2012, and yelling in October 2012—are discrete, episodic events unrelated to any identifiable policy and occurring infrequently. See, e.g., Morgan, 536 U.S. at 113-15 (discrete acts include termination, failure to promote, denial of transfer, or refusal to hire); see also Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003). They are insufficient to suggest a continuing violation. See Morgan, 536 U.S. at 117-18.
A plaintiff may bring suit only for claims within the scope of his EEOC charge. Claims not raised before the EEOC may nonetheless be heard if the claims are reasonably related to a claim filed with the agency. Williams, 458 F.3d at 70. Claims are reasonably related if the charge gave the agency "adequate notice to investigate discrimination on both bases." Williams, 458 F.3d at 70 (citation omitted). "[T]he focus should be on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving." Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir. 2008) (quoting Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003)).
The 2013 EEOC charge alleges various retaliatory actions by NYSPI in response to El's 2010 EEOC complaint, including that NYSPI (1) terminated him without warning, (2) asked him to perform out-of-title tasks, and (3) forced him to request permission to use the bathroom. El also alleges a nurse yelled at him in October 2012 but never yelled at female employees. El checked boxes alleging NYSPI discriminated against him based on his race and sex and retaliated against him for protected activity. These allegations gave the EEOC adequate notice of possible claims for retaliation and for disparate treatment. But no facts in the 2013 EEOC charge put the EEOC on notice of a hostile work environment claim based on El's race. Mathirampuzha, 548 F.3d at 76; see also Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994).
Therefore, the only allegations El exhausted are disparate treatment claims based on his sex and race and retaliation claims stemming from his allegations that (1) NYSPI terminated him without warning, (2) a nurse yelled at him in October of 2012, and (3) his actions have been closely monitored, and a hostile work environment claim based on his gender.
III. Disparate Treatment
"[A] complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Twombly, 550 U.S. at 569 (alteration in original) (citation omitted), affirming Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). But to establish facial plausibility, "a plaintiff must allege facts that allow the court in substance to infer elements of a prima facie case." Mohawk v. William Floyd Sch. Dist., 13 Civ. 2518 (JS) (GRB), 2014 WL 838162, at *2 (E.D.N.Y. Mar. 3, 2014) (citation omitted), cited with approval in Brown v. Daikin Am. Inc., --- F.3d ----, 2014 WL 2895974, at *5 & n.10 (2d Cir. June 27, 2014) (discussing standard's evolution). To make out a prima facie case of disparate treatment, a plaintiff has to show that "(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005).
"A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citations omitted). "An 'adverse employment action' is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities." Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (citation omitted). "Examples of materially adverse changes 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." Joseph, 465 F.3d at 90. "[B]eing yelled at, [or] receiving unfair criticism[]. . . do[es] not rise to the level of adverse employment actions . . . ." Smalls v. Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005) ((citations omitted)). Some actions may contribute to an inference that an adverse employment action has taken place, but do not themselves constitute adverse employment actions. See Honey v. Cnty. of Rockland, 200 F. Supp. 2d 311, 320 (S.D.N.Y. 2002). A supervisor's "excessive scrutiny" of an employee, for example, does not constitute a material change to the terms of employment. See Uddin v. City of New York, 427 F. Supp. 2d 414, 429 (S.D.N.Y. 2006).
El's allegations that his supervisors closely scrutinized his work and a nurse yelled at him are therefore insufficient to allege an adverse employment action.
But El also alleges he was terminated, a classic adverse action. See Joseph, 465 F.3d at 90. "It is axiomatic that mistreatment at work . . . is actionable under Title VII only when it occurs because of an employee's sex, or other protected characteristic." Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (alteration in original) (citation omitted). A complaint must allege "factual circumstances from which a gender-[ or race-]based motivation for such an action might be inferred." Patane, 508 F.3d at 112.
El characterizes his termination as retaliatory. (EEOC Charge 1.) But a retaliatory motive is not a gender or race-based motive. Patane, 508 F.3d at 112. El further alleges he was the only black male working in the Audobon Clinic in 2010. (See Compl. at 6.) The fact that El, the only black male on his floor in 2010, was terminated in 2014 does not "render plausible" an inference that he was terminated because of his gender or race. See De La Peña v. Metro. Life Ins. Co., 953 F. Supp. 2d 393, 413 (E.D.N.Y. 2013) aff'd, 552 F. App'x 98 (2d Cir. 2014) ("The fact that the Plaintiff was the only Filipino in his office is not sufficient to connect the Defendants' actions and behavior to a discriminatory intent.") see also Coleman v. brokersXpress, LLC, 08 Civ. 5085 (SAS), 2009 WL 275474, at *2-3 (S.D.N.Y. Feb. 4, 2009) (finding allegations insufficient where the plaintiff "alleges little more than that he is Jewish[ ] and that he was terminated." (alteration in original)) aff'd, 375 F. App'x 136 (2d Cir. 2010).
El's retaliation claim is addressed in Section V.
In El's EEOC Charge, he alleges a certain employee yelled at him once and that he never observed her yell at a female employee. (EEOC Charge 1.) This is insufficient to create a plausible inference that El's suspension was motivated by his gender. See Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 675 (S.D.N.Y. 2012) (finding yelling at sole black female dentist does not suggest yelling motivated by gender), appeal dismissed (Aug. 14, 2012). El offers no facts that would support an inference of discrimination.
IV. Hostile Work Environment
Even if El's hostile work environment claim were timely, he has failed to state such a claim. A hostile work environment arises "[w]hen 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." Morgan, 536 U.S. at 116 (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Courts "look to 'all 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.'" Morgan, 536 U.S. at 116 (citation omitted). The environment must be one that "would reasonably be perceived, and is perceived, as hostile or abusive." Forklift Sys., 510 U.S. at 22.
The actions do not support an inference of an abusive working environment. El contends staff members yelled at him at least once in public, told him to "shut up" when he asked questions, required him to seek permission to use the washroom, closely monitored his actions, and assigned him a receptionist's duties. But "Title VII 'does not set forth a general civility code for the American workplace.'" See Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Allegations an employer subjected an employee to excessive scrutiny and a public scolding are far from sufficient. See Trachtenberg v. Dep't of Educ. of City of N.Y., 937 F. Supp. 2d 460, 472-73 (S.D.N.Y. 2013) (excessive scrutiny, intimidating stares, negative performance evaluations, letters containing "scurrilous charges," and one public scolding insufficient).
And El alleges no facts supporting an inference that staff members were motivated by racial or gender animus. The sole offensive utterance by an NYSPI employee—false accusations of sexual harassment by El's ex-girlfriend (and co-worker)—cannot plausibly support an inference that her statements were motivated by El's race or gender. Cf. Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (supervisor's preference of paramour fails to state a claim). Although El's EEOC charge claimed a particular nurse yells only at men and not at women, it only described one incident in which that person yelled at anyone. This does not suggest an improper race- or gender-based motive. See Dean v. Westchester Cnty. Dist. Attorney's Office, 119 F. Supp. 2d 424, 429 (S.D.N.Y. 2000). El's conclusory allegation that he was treated differently because he was a black male is insufficient to plead the employees acted with improper motives. See Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 360 (S.D.N.Y. 2006) ("When a person only makes general allegations that African-Americans are treated differently in the workplace, those allegations are insufficient to support a hostile work environment claim.").
For the foregoing reasons, El's claim is insufficient to create an inference of a hostile work environment.
V. Retaliation
"Title VII forbids retaliation against an employee for complaining of employment discrimination." Suarez v. City of N.Y., 09 Civ. 8417 (WHP), 2012 WL 4786383, at *4 (S.D.N.Y. Sept. 26, 2012) (citing 42 U.S.C. § 2000e-3(a)). To plead a retaliation claim, a plaintiff must allege that "(1) [the employee] engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action." Kelly, 716 F.3d at 14 (citing Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)). "[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse [employment] action." Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation marks and citation omitted) (second alteration in original).
The Supreme Court's recent decision in Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013), holding "that 'Title VII retaliation claims must be proved according to traditional principles of but-for causation,'" does not affect the plaintiff's prima facie burden. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013); see also Kirkland v. Cablevision Sys., 13 Civ. 3625, 2014 WL 3686090 (2d Cir. July 25, 2014). --------
For retaliation claims, an action is materially adverse if it "well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington, 548 U.S. at 67-68 (citation omitted). "[T]hose petty slights or minor annoyances that often take place at work and that all employees experience" are not materially adverse. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (quoting Burlington, 548 U.S. at 68). Yelling at or requiring employees to seek permission to use the washroom fall into this category.
Suspension is a classic materially adverse action, see Burlington, 548 U.S. at 73, but El alleges no facts supporting an inference of a causal connection between his 2010 EEOC complaint and his 2013 suspension. He was terminated three years after he filed his initial EEOC claim, a far cry from temporal proximity. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) ("Action taken . . . 20 months later suggests, by itself, no causality at all."); Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012) ("[C]ourts in this circuit have typically measured that gap as a matter of months, not years.").
Finally, El alleges that the only recent hostility and contempt expressed by co-workers was caused by an angry ex-girlfriend and her accusations of sexual harassment, not from El's initial EEOC complaint. (See Compl. at 6.) Therefore, El fails to state a claim of retaliation.
CONCLUSION
For the foregoing reasons, New York State Psychiatric Institute's motion to dismiss the Complaint is granted. The Clerk of Court is directed to terminate the motion pending at ECF No. 24 and to mark this case closed. Dated: August 19, 2014
New York, New York
SO ORDERED:
/s/_________
WILLIAM H. PAULEY III
U.S.D.J.
Copy mailed to:
Kwame Ozukata El
2200 Tiebout Avenue #5F
Bronx, NY 10457
Plaintiff pro se
Copy sent via ECF to:
Katherine Brady Dirks Jane R. Goldberg New York State Office of the Attorney General 120 Broadway New York, NY 10271 Counsel for Defendant