Opinion
23-CV-2980 (JMF)
08-02-2024
DENISE EMANUEL, Plaintiff, v. CITY OF NEW YORK et al., Defendants.
OPINION AND ORDER
JESSE M. FURMAN, UNITED STATES DISTRICT JUDGE
In this action, Plaintiff Denise Emanuel, a former employee of the New York City Human Resources Administration (“HRA”), sues New York City (“the City”), HRA, and three of her former colleagues (Dinorah Rodriguez, Dennis Whinfield, and Marlene Wright) for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and 42 U.S.C. § 1983; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296; and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107. More specifically, Emanuel alleges that Rodriguez, her former supervisor, filed disciplinary charges against her in retaliation for an internal complaint of discrimination that she had filed against Rodriguez and that Whinfield and Wright, two Equal Employment Opportunity (“EEO”) officers at HRA, delayed processing Emanuel's internal complaint to ensure that the disciplinary charges would appear to come first in time. Now pending are two motions to dismiss, one filed by the City, HRA, and Rodriguez (collectively, the “City Defendants”), ECF No. 25, and another by Whinfield and Wright (together, the “Employee Defendants”), ECF No. 36. For the reasons that follow, the motions are GRANTED in part and DENIED in part.
BACKGROUND
The following facts - drawn from the Complaint, ECF No. 13 (“Compl.”), and documents that are incorporated by reference in, or integral to, the Complaint - are assumed to be true for purposes of this motion. See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
Defendants ask the Court to consider for its truth an undated and unsigned document they submit titled only “Exhibit ‘A'” - which they describe as Emanuel's “Discipline Charges and Specifications” - on the ground that it is referenced in the Complaint. ECF No. 25-1 (“City Defs.' Mem.”), at 2 n.4, 3, 10. That request is frivolous. First, although the relevant paragraph of the Complaint alleges that Emanuel “was served with the disciplinary charges,” Compl. ¶ 11, it is not clear whether Exhibit “A” is a copy of those charges. Second, and in any event, the gravamen of Emanuel's claims is that the disciplinary charges were “fictitious” and filed in retaliation for her charge of discrimination. Id. ¶ 49. It would be absurd to hold, as Defendants appear to suggest, that by citing the charges in the Complaint Emanuel conceded the truth of their contents. See, e.g., DiFolco, 622 F.3d at 111 (“Even if a document is integral to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or the accuracy of the document.” (cleaned up)). Thus, the Court will not consider Exhibit “A” here.
Emanuel, an African-American woman, began working for HRA in May 2004. Compl. ¶¶ 24, 31. In October 2016, she was promoted to Application Processing Supervisor at the agency's Hunts Point Job Center. Id. ¶ 32. Under Emanuel's supervision, her unit “moved up in ranking” from nineteenth (out of nineteen) to fifth and achieved a “record of 100% accuracy.” Id. ¶¶ 33, 36. In February 2017, however, Rodriguez became Director of the Hunts Point Job Center and Emanuel's circumstances began to change. Id. ¶ 35. Rodriguez began to “show immediate disdain towards” Emanuel and “showed favor towards Hispanic workers . . . while ignoring [Emanuel].” Id. Rodriguez then “began a campaign of harassment against” Emanuel, “which included pulling workers off of [Emanuel's] team, creating staffing shortages and interfering with [Emanuel's] ability to timely process applications, removing [Emanuel] from the Applications Unit and replacing her with a Hispanic co-worker who had no experience or knowledge with the work of the Unit, and consistently denying [Emanuel's] overtime request while approving other employees' requests.” Id. ¶ 37.
In 2018, Emanuel filed a complaint alleging that Rodriguez had discriminated against her on the basis of race and national origin with HRA's Equal Employment Opportunity (“EEO”) Department, which deemed the complaint “unfounded.” Id. ¶¶ 38-39. This decision “[e]mboldened” Rodriguez to encourage Emanuel's co-workers and subordinates to “turn[] on her,” affecting Emanuel's “ability to do her job effectively.” Id. ¶¶ 40-42. On February 11, 2021, Emanuel filed a retaliation complaint against Rodriguez; Felix Reeder, the Center's Deputy Director; and “Mr. Espinal, a colleague at the same supervisory level as” Emanuel. Id. ¶ 43. HRA's EEO Department “acknowledged receipt of' Emanuel's retaliation complaint and provided her with the contact information for Whinfield, who was an HRA EEO officer at the time. Id. ¶ 44. Whinfield then interviewed Emanuel over the phone and told her that he would “be in touch.” Id. ¶ 46. But Emanuel never heard from “Whinfield, or the EEO office, again.” Id. ¶ 47. Instead, Whinfield (or someone else at the EEO Department) “immediately contacted” Rodriguez and Reefer and notified them of Emanuel's complaint. Id. ¶ 48.
The next day, on February 12, 2021, Rodriguez filed disciplinary charges against Emanuel “based on fictitious allegations.” Id. ¶ 49. Significantly, however, Emanuel was not served these charges until November 16, 2021, when she found out that Rodriguez had filed charges against her via e-mail “the day after [Emanuel] filed her EEO retaliation complaint.” Id. ¶¶ 51, 54 (emphasis omitted). Between December 3, 2021, and December 8, 2021 - after she had had received the disciplinary charges - Emanuel e-mailed Whinfield four times to obtain a status update on her retaliation complaint. Id. ¶ 57. (She had emailed him to the same effect on April 16, 2021, but got no response. Id. ¶¶ 52-53.) On December 8, 2021, Whinfield replied that 3 he was no longer at the EEO Department and that the agency would contact Emanuel if it needed more information from her. Id. ¶ 58. Jason Hryckowian, another EEO officer whom Emanuel had copied on her emails to Whinfield, “eventually” replied that he too was no longer employed at the EEO Department. Id. ¶ 59.
After Emanuel sent “multiple emails to various departments within” HRA, Wright, an EEO officer, finally reached out to Emanual on January 10, 2022. Id. ¶ 61 (emphasis omitted). Wright “acknowledged that the EEO [had] received [Emanuel's] complaint on February 11, 2021, but also advised that the . . . EEO Department never entered the complaint into their system, never investigated the complaint and never made any determinations.” Id. ¶ 62. Wright advised Emanuel that she would need to “complete a whole new complaint form and date it January 2022.” Id. ¶ 63. Despite that advice, Emanuel simply resubmitted a copy of her February 11, 2021 complaint to Wright. Id. ¶ 64. Wright “rejected” the complaint and reaffirmed that Emanuel “must fill out a new complaint form, and date it January 2022,” or the EEO Department “would not accept or investigate” it. Id. ¶ 65 (emphasis omitted).
In March 2022, Emanuel appeared before the City's Office of Administrative Trials and Hearings (“OATH”) regarding the disciplinary charges against her. Id. ¶ 74. During the conference, the administrative law judge advised HRA's attorney that “some of the charges filed against [Emanuel] would not be admissible as the witnesses named in the complaint should have made complaints with . . . HRA's EEO Department as opposed to having them addressed in a disciplinary proceeding.” Id. ¶ 74. Then, on May 9, 2022, Emanuel received an email from the EEO Department - which listed Hryckowian as an EEO Officer even though he had told Emanuel that he no longer worked there - “advising that she [had been] named as a Respondent in charges that were brought against her on January 29, 2020, almost two and a half years ago.” Id. ¶¶ 75-76 (emphasis omitted).
Emanuel filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on July 28, 2022, and received a Notice of Right to Sue on March 28, 2023. Id. ¶ 22; see also ECF No. 13-1. She then brought this action on April 10, 2023. After the City, HRA, and Rodriguez moved to dismiss Emanuel's Complaint in July 2023, “it c[a]me to [Emanuel's] attention that . . . Whinfield and . . . Wright [had] not [been] served” despite the process server's efforts because “the office in which these individuals [had] worked . . . had been closed since March of 2020, presumably due to COVID-19 pandemic.” ECF No. 30, at 2. With leave of Court, Emanuel managed to serve Whinfield and Wright thereafter, see ECF Nos. 31, 32, 39, and Whinfield and Wright then filed a separate motion to dismiss, see ECF No. 36.
Whether intentionally or recklessly, defense counsel filed the exact same reply memorandum of law in support of Whinfield's and Wright's motion to dismiss, ECF No. 43 (“Employee Defs.' Reply”), as she had filed in support of the motion filed by the City, HRA, and Rodriguez, ECF No. 29 (“City Defs.' Reply”). Counsel did not even bother to change the date of the memorandum - let alone remove the footnote stating that “[u]pon information and belief, putative individual defendants Marlene Wright and Dennis Whinfield were not served,” and that “no representation [was] being made on their behalf.” Employee Defs.' Reply 1 n.1. The fact that she did so is all the more egregious given that Whinfield's and Wright's motion did not raise the same arguments as the earlier motion to dismiss. For example, the reply memorandum of law purportedly filed “in support” of Whinfield's and Wright's motion to dismiss focuses in large part on issues of timeliness, see Employee Defs.' Reply 3-6, which Whinfield and Wright did not even raise in their opening brief, see ECF No. 37 (“Employee Defs.' Mem.”). Defense counsel is cautioned that if such conduct recurs it may result in sanctions.
LEGAL STANDARDS
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Giunta v. Dingman, 893 F.3d 73, 79 (2d Cir. 2018). A court will not dismiss any claims unless the plaintiff has failed to plead sufficient facts to state a claim to relief that is facially plausible, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) - that is, one that contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). More specifically, a plaintiff must allege facts showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Further, if the plaintiff “ha[s] not nudged [her] claims across the line from conceivable to plausible, [those claims] must be dismissed.” Id. at 570. Where, as here, a plaintiff brings claims of retaliation, however, the facts “alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to [retaliation]. They need only give plausible support to a minimal inference of [retaliatory] motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86-87 (2d Cir. 2015).
DISCUSSION
Before turning to Defendants' arguments in favor of dismissal, it is necessary to clarify what claims Emanuel even asserts. That is because the parties' briefing is all over the place and discusses claims that are not asserted in the Complaint and even expressly disavowed.
First, the Complaint does not allege a claim of discrimination on the basis of race or national origin (let alone a plausible such claim). Were there any doubt on this score, Emanuel explicitly states in her memorandum of law in opposition to the City Defendants' motion to dismiss that her Complaint does “not raise ‘discrimination' claims.” ECF No. 28 (“Pl.'s First Opp'n”), at 17. In light of that, the issue would barely warrant mention, except that, inexplicably, the Employee Defendants addressed the substance of any such claims again in their later memorandum of law, see ECF No. 37 (“Employee Defs.' Mem.”), at 7-9, and, even more inexplicably, Emanuel, in her opposition to that motion, appears to reverse course and assert that the Complaint does assert “race and national origin discrimination claims” against the City Defendants (and, if necessary, requests leave to amend the Complaint to plead her national origin), see ECF No. 42 (“Pl.'s Second Opp'n”), at 10-11. That is insufficient to revive a claim that Emanuel expressly disavowed in her earlier filing. And in any event, the Complaint does not even come close to asserting a plausible claim of discrimination. Accordingly, the Court will not consider the parties' arguments regarding any claims of race and national origin discrimination (and denies Emanuel's request for leave to amend). See Reed Int'l Trading Corp. v. Donau Bank AG, 866 F.Supp. 750, 756 (S.D.N.Y. 1994) (“[I]t is axiomatic that a complaint cannot be amended by the briefs in opposition to a motion to dismiss.” (cleaned up)).
Second, contrary to Emanuel's assertions in her memoranda of law, see Pl.'s First Opp'n 21-23; Pl.'s Second Opp'n 11-14, the Complaint does not raise any claim of hostile work environment (let alone a plausible such claim). Indeed, the Complaint uses the phrase “hostile work environment” only twice, once in alleging the bases for Emanuel's February 11, 2021 internal complaint (and, thus, the predicate for her claim of retaliation), see Compl. ¶ 86 (“[Defendants'] outright refusal to take and investigate [Plaintiff's] claims of retaliation and a hostile work environment is directly causing said hostile environment to continue against [Plaintiff].”), and once in reference to how Defendants retaliated for that complaint, see id. ¶ 97 (listing “hostile work environment” as one consequence (out of many) of “the [retaliatory] acts and conduct complained of herein”). The Court will therefore not consider the parties' arguments regarding any such claim. See Dunn v. City Univ. of New York, No. 11-CV-8210 (PAE), 2012 WL 5511607, at *6 n.4 (S.D.N.Y. Nov. 14, 2012) (declining to consider a claim that appeared for the first time in plaintiff's “opposition to the motion to dismiss,” because it did not “appear anywhere in her Second Amended Complaint, and [plaintiff] did not seek leave to amend that complaint to add this new theory”), vacated on other grounds sub nom. Dunn v. Sederakis, 602 Fed.Appx. 33, 34 (2d Cir. 2015); Karnauskas v. Columbia Sussex Corp., No. 09-CV-7104 (GBD), 2012 WL 234377, at *6 (S.D.N.Y. Jan. 24, 2012) (declining to consider a “claim [that] does not appear anywhere in plaintiff's amended complaint” because plaintiff “has not made a short and plain statement giving [defendants] fair notice of a cause of action . . . and is therefore not entitled to now seek relief on the basis of such a claim”).
Elsewhere, the Complaint uses the terms “hostile” and “hostility” without reference to the “environment” or “work environment.” Compl. ¶¶ 7, 40, 42, 103, 118, 148. But these conclusory allegations are plainly insufficient to support a hostile work environment claim. See, e.g., Veras v. N.Y.C. Dep't of Educ., No. 1:22-CV-00056 (JLR) (SN), 2024 WL 3446498, at *7 (S.D.N.Y. July 17, 2024) (“[G]eneralized assertions of ridicule, slurs and a hostile work environment are bare conclusory statements and are not sufficient to state a claim.”); see generally Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
Finally, the Complaint does not include a claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978) (let alone a plausible such claim). It makes no mention of Monell. And it includes no allegations regarding municipal policy, custom, or practice, as would be necessary to sustain a Monell claim. See id. at 694-95. Despite that, the City Defendants argued in their motion to dismiss that Emanuel's “claims against the City on a Monell basis” should be dismissed, City Defs.' Mem. 12, an argument to which Emanuel did not respond, implicitly conceding the absence of (or abandoning) any such claim, see Pl.'s First Opp'n; see also, e.g., Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC, No. 08-CV-442 (TPG) (FM), 2014 WL 4723299, at *7 (S.D.N.Y. Sept. 23, 2014) (“At the motion to dismiss stage . . ., a plaintiff abandons a claim by failing to address the defendant's arguments in support of dismissing that claim.”). In light of that, this issue too would barely warrant mention, except that, once again inexplicably, Emanuel's memorandum of law in opposition to the Employee Defendants' motion to dismiss makes reference to her “Monell claims” (even though the Employee Defendants made no reference to Monell in their motion to dismiss). See Pl.'s Second Opp'n 22 (“Plaintiff's section 1983 claims are not Monell claims and are not based on municipal liability. Instead, Plaintiff's Monell claims are based on the conduct of these individuals in violating Plaintiff's rights while each acting under color of law.” (citation omitted)). That (slightly incoherent) reference plainly does not suffice to assert (or revive) a Monell claim.
In short, the Complaint is limited to claims of retaliation under federal law (Title VII and Section 1983), state law, and local law. Accordingly, the discussion that follows is limited to those claims and those claims alone. Further, it is limited to those claims against the City, Rodriguez, Whinfield, and Wright because, as Defendants note (and Emanuel wisely does not contest), HRA is not a suable entity. See City Defs.' Mem. 12 n.6; Koulkina v. City of New York, No. 06-CV-11357 (SHS), 2009 WL 210727, at *6 (S.D.N.Y. Jan. 29, 2009) (collecting cases).
A. Timeliness
Defendants first argument for dismissal of Emanuel's retaliation claims is that they are untimely. See City Defs.' Mem. 4-5. Under Title VII, a plaintiff in New York State must file a charge with the EEOC within three hundred days of the allegedly unlawful practice to bring suit. See 42 U.S.C. § 2000e-5(e)(1). Defendants argue that because Emanuel did not file any charge of discrimination with the EEOC until July 28, 2022, her Title VII retaliation claim is time barred to the extent it is premised on any discriminatory acts that “occurred prior to September 21, 2021,” which would include the core of Emanuel's claim - namely, Rodriguez's filing of the allegedly retaliatory disciplinary charges on February 12, 2021, and Defendants' initial failure to act on Emanuel's February 11, 2021 retaliation complaint. City Defs.' Mem. 4-5. Emanuel “concedes” that her claims would normally be limited to discriminatory acts that occurred “within 300 days” prior to the filing of her EEOC charge, but she argues that two “exceptions” to that rule - the “continuing violation” doctrine and equitable tolling - apply and that her claims are thus timely. Pl.'s First Opp'n 12-17.
As noted above, this argument is not made in the Employee Defendants' initial memorandum of law. The Court could therefore deem the argument forfeited as to those Defendants.
The Court concludes that the “question of equitable tolling is a highly factual issue that cannot be resolved on the pleadings at this stage of the proceedings.” Zhongwei Zhou v. Wu, No. 14-CV-1775 (RJS), 2015 WL 925962, at *4 (S.D.N.Y. Mar. 3, 2015) (Sullivan, J.); see, e.g., Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006) (“Generally, the applicability of equitable tolling depends on matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss . . . if equitable tolling is at issue.”). In Title VII cases, equitable tolling may apply “where the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting his rights.” Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978). Emanuel plausibly alleges that that is the case here, as she alleges that Rodriguez's disciplinary charges, although filed on February 12, 2021, were not served on her until November 16, 2021. Compl. ¶ 54. If true (and the Court must assume the allegation is true at 10 this stage of the litigation), it “would have been impossible” for Emanuel to file her claim until at least November 16, 2021, and she may therefore be entitled to equitable tolling. Predun v. Shoreham-Wading River Sch. Dist., 489 F.Supp.2d 223, 229 (E.D.N.Y. 2007). That is true even if the nine-month delay in notice did not arise from “misleading conduct” on the part of HRA, Id., as “courts do not penalize litigants for [an agency's] mistakes and misinformation,” Harris v. City of New York, 186 F.3d 243, 248 n.3 (2d Cir. 1999). Nor, contrary to Defendants' argument, does the fact that Emanuel “repeatedly raised” claims of retaliation with HRA undermine her entitlement to equitable tolling. City Defs.' Reply 5. Those claims were in reference to Rodriguez's prior retaliatory conduct - namely, the conduct that formed the basis of her February 11, 2021 complaint - not in reference to the retaliatory conduct that underlies her claims of retaliation pressed in this case. Accordingly, Defendants' argument that Emanuel's claims must be dismissed as untimely is rejected.
Given that conclusion, the Court need not and does not address Emanuel's argument that the “continuing violation” doctrine also applies. See Pl.'s First Opp'n 13-15.
B. Failure to State a Claim
As noted, Plaintiff brings retaliation claims under Title VII, the NYSHRL, and the NYCHRL - based on a theory of vicarious liability as to the City and on a theory of individual liability as to Rodriguez, Whinfield, and Wright. To establish a prima facie case of retaliation under Title VII, a plaintiff must show that “(1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Nieblas-Love v. N.Y.C. Housing Auth., 165 F.Supp.3d 51, 69-70 (S.D.N.Y. 2016) (internal quotation marks omitted). To satisfy the “causal connection” requirement, a plaintiff must plausibly allege that “retaliation was a ‘but-for' cause of the employer's adverse action[s],” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018) (quoting Vega, 801 F.3d at 90-91), “not simply a ‘substantial' or ‘motivating' factor in the employer's decision,” Vaughn v. Empire City Casino at Yonkers Raceway, No. 14-CV-10297 (KMK), 2017 WL 3017503, at *20 (S.D.N.Y. July 14, 2017) (quoting Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013)). “[P]roof of causation can be shown either: (1) 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; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Generally, “a close temporal relationship between a plaintiff's participation in protected activity and an employer's adverse actions can be sufficient to establish causation.” Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002). The NYSHRL and the NYCHRL are at least as protective as Title VII, so a plaintiff who states a claim of retaliation under Title VII necessarily states retaliation claims under the state and city laws as well. See, e.g., McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 157 (2d Cir. 2017) (per curiam); see also, e.g., Baptiste v. City Univ. of N.Y., 680 F.Supp.3d 415, 426-27 (S.D.N.Y. 2023); Charles v. City of New York, No. 21-CV-5567 (JPC), 2023 WL 2752123, at *6-7 (S.D.N.Y. Mar. 31, 2023).
Both sides incorrectly assert that the standards applicable to claims brought under the NYSHLR are identical to those that apply to claims under Title VII. See City Defs.' Mem. 6; Pl.'s First Opp'n 18. That was the case “until recently,” but “in August 2019, . . . New York amended the NYSHRL to direct courts to construe the NYSHRL, like the NYCHRL, liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws including those laws with provisions worded comparably to the provisions of the NYSHRL have been so construed.” Halkitis v. N.Y.C. Dep't of Educ., No. 19-CV-11753 (JMF), 2022 WL 392911, at *7 (S.D.N.Y. Feb. 9, 2022) (cleaned up).
1. Claims Against the City
Measured against these standards, Emanuel states plausible claims of retaliation against the City. As for the first element, there is no dispute that Emanuel alleges that she engaged in “protected activity” by filing an internal retaliation complaint against Rodriguez. See City Defs.' Mem. 9; see also Compl. ¶ 43. Focusing on the second element, Defendants argue that they could not have been aware of Emanuel's February 11, 2021 complaint because, as Emanuel herself alleges, “HRA's EEO Department never entered the complaint into their system, never investigated the complaint and never made any determinations.” City Defs.' Mem. 9 (quoting Compl. ¶ 62). But that argument is frivolous, as it ignores Emanuel's allegation that Rodriguez was made aware of the complaint because Whinfield “immediately contacted” her upon receiving it. Id. ¶ 48. As for the third element, Emanuel plainly alleges that she was subject to an “adverse employment action” when Rodriguez filed disciplinary charges against her. See Washington v. Cnty. of Rockland, 373 F.3d 310, 320 (2d Cir. 2004) (holding that “the filing of [] administrative charges” could, “as a matter of law, constitute an adverse employment action”); Giscombe v. N.Y.C. Dep't of Educ., 39 F.Supp.3d 396, 401 (S.D.N.Y. 2014) (“Plaintiff was subjected to adverse employment action . . . when he was subjected to disciplinary charges.”).
That leaves the fourth element, whether “a causal connection exists between the alleged adverse action and the protected activity.” Nieblas-Love, 165 F.Supp.3d at 69-70 (internal quotation marks omitted). Defendants argue that there is no plausible connection here because there was a nine-month gap between Emanuel's February 11, 2021 retaliation complaint and Rodriguez's disciplinary charges, citing Emanuel's “admi[ssion] that she received her disciplinary charges” on November 16, 2021. City Defs.' Mem. 10. But that argument ignores the crux of Emanuel's retaliation claims: that, regardless of when the allegedly retaliatory 13 disciplinary charges were served, Rodriguez filed them only one day after Emanuel filed her complaint against Rodriguez. Compl. ¶ 54. Defendants (rightly) do not dispute that a one-day gap between a protected activity and an adverse employment action is enough to “indirectly” show causation. See Gordon, 232 F.3d at 117; see also Rivera v. JPMorgan Chase, 815 Fed.Appx. 603, 608 (2d Cir. 2020) (summary order). It follows that Emanuel states plausible claims of retaliation. See, e.g., Vega, 801 F.3d at 84 (explaining that, in the employment discrimination context, a plaintiff is not even required to “plead a prima facie case . . . to defeat a motion to dismiss”). Whether Defendants “had legitimate . . . and non-retaliatory reasons for [their] actions,” as they suggest, cannot be determined on the current record and is, thus, “an issue to be decided on summary judgment, not at the motion to dismiss stage.” Robinson v. Gucci Am., No. 11-CV-3742 (JPO), 2012 WL 259409, at *6 (S.D.N.Y. Jan. 27, 2012); see City Defs.' Mem. 10.
The City Defendants argue for the first time in their reply memorandum of law that Emanuel's claims fail because she is challenging the outcome of her OATH hearing and “[a]n Article 78 proceeding is the only vehicle through which to” do so. See City Defs.' Reply 2-3. The Court deems that argument forfeited. See, e.g., Conn. Bar Assn v. United States, 620 F.3d 81, 91 n.13 (2d Cir. 2010) (“Issues raised for the first time in a reply brief are generally deemed waived.”). In any case, Emanuel clarifies that she is “challenging]” the outcome of her disciplinary proceedings to the extent she “identifie[s them] as retaliatory,” which is the gravamen of her claims under Title VII, the NYSHRL, and the NYCHRL. Pl.'s First Opp'n 10.
Finally, the City may plainly be held liable for Rodriguez's actions because she was a supervisor who possessed (and exercised) the power to “remov[e] [Emanuel] from the Applications Unit” and “deny[] [Emanuel's] overtime request.” Compl. ¶¶ 35, 37; see Vance v. Ball State Univ., 570 U.S. 421, 424 (2013) (holding that an employer may be held vicariously liable under Title VII for the acts of a supervisor who is “empowered by the employer to take tangible employment actions against the victim”); Oliver v. City of New York, No. 19-CV-11219 (PGG), 2023 WL 2160062, at *19 (S.D.N.Y. Feb. 22, 2023) (same under the NYSHRL and the NYCHRL); Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F.Supp.3d 763, 787 (S.D.N.Y. 2019) (collecting cases). Because that is enough to uphold Emanuel's retaliation claims against the City for now, the Court need not and does not address whether the same can be said with respect to Whinfield's and Wright's actions. But the answer is likely no. A plaintiff can establish vicarious liability for a nonsupervisory coworker by alleging that “the employer knew, or reasonably should have known, about” the conduct violating Title VII. See Alvarado, 404 F.Supp.3d at 788 (quoting Hoag v. Fallsburg Central Sch. Dist., 279 F.Supp.3d 465, 480 (S.D.N.Y. 2017)). Emanuel makes no such allegations here. Moreover, “an employer's failure to investigate a complaint of discrimination,” which is the thrust of Emanuel's allegations regarding Whinfield and Wright, “cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010).
2. Claims Against Rodriguez, Whinfield, and Wright
That leaves Emanuel's claims against Rodriguez, Whinfield, and Wright. Specifically, Emanuel alleges that they were personally involved in unlawful retaliation in violation of Section 1983 and that they aided and abetted such retaliation in violation of the NYSHRL and the NYCHRL. See Compl. ¶¶ 128-43, 158-89. To the extent that Emanuel brings a Section 1983 claim against these Defendants in their official capacities, the claim is easily dismissed, as it is duplicative of her claims against the City. See, e.g., Anemone v. Metro. Transp. Auth., 410 F.Supp.2d 255, 264 n.2 (S.D.N.Y. 2006) (“An official-capacity suit is . . . to be treated as a suit against the entity . . . . Where, as here, the entity also is named as a defendant, the official capacity claims are redundant and are properly dismissed.” (cleaned up)); accord Adams-Flores v. City of New York, No. 18-CV-12150 (JMF), 2020 WL 996421, at *4 (S.D.N.Y. Mar. 2, 2020). To the extent that she brings claims against these Defendants in their personal capacities, however, they cannot be so swiftly dismissed.
First, contrary to Defendants' arguments, see Employee Defs.' Mem. 16, a “claim of retaliation for a complaint that alleged discrimination is actionable under § 1983.” Vega, 801 F.3d at 81. Indeed, the elements required for aprimafacie case of retaliation under Section 1983 are the same as those required under Title VII. See Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015). To state a Section 1983 claim, however, a plaintiff must also plead that the defendant was “personally involved” in the alleged retaliation, see Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016), which “means direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates,” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Emanuel plainly does so as to Rodriguez. But by contrast, she fails to do so as to Whinfield and Wright. For one thing, Emanuel fails to allege that either Whinfield or Wright took any adverse employment action against her. According to the Complaint, Whinfield tipped off Rodriguez and withheld action on Emanuel's complaint “so that [Rodriguez's] retaliatory disciplinary charges . . . would come first in time,” Compl. ¶¶ 48, 66, and Wright “refuse[d] [Emanuel's] complaint unless [she] dated the complaint for January of 2022 or later,” Compl. ¶¶ 65, 67. On their own, however, these actions do not constitute adverse employment actions. See Fincher, 604 F.3d at 721. Furthermore, Emanuel does not allege a causal connection between Whinfield's and Wright's actions and her protected activity, let alone that a retaliatory motive was the “but-for” cause of their actions. Put differently, although Whinfield's and Wright's actions may have been taken in service of Rodriguez's retaliatory scheme (and thus support aiding-and-abetting claims, as discussed below), Emanuel does not allege that her February 11, 2021 complaint implicated Whinfield and Wright in any way, or that Whinfield and Wright took their alleged actions because of that complaint. Thus, while Emanuel's Section 1983 claim as to Rodriguez survives, her Section 1983 claims as to Whinfield and Wright must be and are dismissed.
Defendants make a pro forma argument that Emanuel's Section 1983 claims fail because the individual Defendants are entitled to qualified immunity. See City Defs.' Mem. 12; Employee Defs.' Mem. 17-18. The Court need not and does not address the argument with respect to Whinfield and Wright given that those claims fail for other reasons. As to Rodriguez, the argument borders on frivolous as the facts supporting the defense certainly do not “appear on the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).
The reverse is true for Emanuel's aiding-and-abetting claims under the NYSHRL and NYCHRL. To state a claim for aiding and abetting unlawful retaliation under both the State and City laws, a plaintiff must plead both that the “defendant actually participate[d] in the conduct giving rise to the retaliation claim,” Farmer v. Shake Shack Enters., LLC, 473 F.Supp.3d 309, 337 (S.D.N.Y. 2020) (internal quotation marks omitted); see also Lewis v. Turning Point Brooklyn, Inc., No. 17-CV-7560, 2019 WL 1433068, at *6 (E.D.N.Y. Mar. 29, 2019), and that the defendant “share[d] the intent or purpose of the principal actor,” Friedv. LVI Servs., Inc., No. 10 Civ. 9308 (JSR), 2011 WL 2119748, at *7 (S.D.N.Y. May 23, 2011) (internal quotation marks omitted); see, e.g., Feingoldv. New York, 366 F.3d 138, 158 (2d Cir. 2004) (noting that the same standard governs aiding-and-abetting claims under the NYSHRL and the NYCHRL “because the language of the two laws is virtually identical” (internal quotation marks omitted)). The aider and abettor need not have had an employer-employee or supervisory relationship with the plaintiff. See N.Y. Exec. Law § 296(6); N.Y.C Admin. Code § 8-107(6); Feingold, 366 F.3d at 158 (“[A] co-worker who actually participates in the conduct giving rise to a discrimination claim [can] be held liable under the NYSHRL [or NYCHRL] even though that co-worker lacked the authority to either hire or fire the plaintiff.”). Significantly, however, “an individual cannot aid and abet his or her own violation” of the statute. Baptiste, 680 F.Supp.3d at 427 (quoting Hardwick v. Auriemma, 983 N.Y.S.2d 509, 512-13 (1st Dep't 2014)); see also Singhal v. Doughnut Plant, Inc., No. 20-CV-3295 (ALC), 2022 WL 976885, at *5 (S.D.N.Y. Mar. 31, 2022) (“Under the NYSHRL and NYCHRL, [an] individual[] may not be held liable merely for aiding and abetting his own discriminatory conduct but only for assisting another party in violating that law.” (cleaned up)).
At least one judge in this District has held that the NYCHRL and the NYCHRL do “extend[] to . . . aiding and abetting allegedly unlawful discrimination by an employer even where an individual defendant's actions serve as the predicate for the employer's vicarious liability.” Xiang v. Eagle Enterprises, LLC, No. 19-CV-1752 (PAE), 2020 WL 248941, at *5 (S.D.N.Y. Jan. 16, 2020) (emphasis added) (cleaned up); see also McHenry v. Fox News Network, LLC, 510 F.Supp.3d 51, 73-74 (S.D.N.Y. 2020). But even proponents of this view acknowledge that the analysis involves a “a strange and confusing circularity where the person who has directly perpetrated the unlawful discrimination only becomes liable through the employer whose liability in turns hinges on the conduct of the direct perpetrator.” Ulrich v. Soft Drink, Brewery Workers & Delivery Employees, 425 F.Supp.3d 234, 244 n.10 (S.D.N.Y. 2019) (internal quotation marks omitted). In light of that, and the First Department's clear statement on the issue as to the NYSHRL, see Hardwick v. Auriemma, 983 N.Y.S.2d 509, 513 (1st Dep't 2014) (“[A]n individual cannot aid and abet his or her own violation of the Human Rights Law.”), the Court declines to follow suit and adheres to its prior rulings on issue, see Baptiste, 680 F.Supp.3d at 427; Boyce v. Weber, No. 19-CV-3825 (JMF), 2020 WL 5209526, at *2 (S.D.N.Y. Sept. 1, 2020).
Measured against these standards, Emanuel's allegations against Whinfield and Wright are sufficient to state claims under the NYSHRL and NYCHRL. To be sure, the “actual participation” required for an aiding-and-abetting claim and the “personal involvement” required for a Section 1983 claim are “sufficiently analogous legal concepts.” Campo v. City of New York, No. 19-CV-4364 (NGG), 2022 WL 970730, at *25 (E.D.N.Y. Mar. 31, 2022). But they are not identical, and this may be the rare case where the daylight between them matters. After all, as discussed above, Emanuel does not allege that Whinfield and Wright were personally involved in their employer's retaliation; but she does allege that they actually participated in aiding their colleague's retaliatory scheme. See Compl. ¶¶ 48, 65-67; see also, e.g., Lewis v. Roosevelt Island Operating Corp., 246 F.Supp.3d 979, 992 (S.D.N.Y. 2017) (holding that the plaintiff sufficiently alleged that two of the defendants had “aided and abetted [the principal actor]” in her retaliatory actions but not that “their own conduct violated [the plaintiff's] constitutional rights” in violation of Section 1983). Meanwhile, whether Whinfield and Wright shared Rodriguez's alleged “intent or purpose” is a close call. See Fried, 2011 WL 2119748, at *7. But drawing all inferences in Emanuel's favor, the Court concludes that her allegation that they took their alleged actions “so that [Rodriguez's] retaliatory disciplinary charges . . . would come first in time” is enough at this stage to cross the plausibility threshold. Compl. ¶¶ 14, 66. By contrast, because Rodriguez was the principal actor in the alleged retaliatory scheme, she cannot be held liable on an aiding-and-abetting theory under the NYSHRL and NYCHRL. See Baptiste, 680 F.Supp.3d at 427. Accordingly, while Emanuel's aiding-and-abetting claims as to Whinfield and Wright survive, her aiding-and-abetting claims as to Rodriguez must be and are dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part. Specifically, the following claims are dismissed:
• All claims under Section 1983 against Whinfield and Wright;
• Claims under Section 1983 against Rodriguez in her official capacity;
• Claims under the NYSHRL and NYCHRL against Rodriguez; and
• All claims against the HRA.
All other claims survive. With respect to the dismissed claims, the Court declines to sua sponte grant Emanuel leave to amend. To be sure, leave to amend a pleading should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). But it is “within the sound discretion of the district court to grant or deny leave to amend,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and there are several reasons to exercise that discretion to deny leave here. First, the problems with Emanuel's dismissed claims are substantive, so amendment would be futile. See, e.g., Roundtree v. NYC, No. 19-CV-2475 (JMF), 2021 WL 1667193, at *6 (S.D.N.Y. Apr. 28, 2021) (citing cases). Second, Emanuel does not request leave to amend (for the above-listed claims) or suggest that she is in possession of facts that would cure the problems with the dismissed claims. See, e.g., Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014) (“A plaintiff need not be given leave to amend if [she] fails to specify how amendment would cure the pleading deficiencies in [she] complaint.”); accord TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505-06 (2d Cir. 2014). Finally, the Court granted Emanuel leave to amend her original complaint in response to Defendants' first motion to dismiss, which raised some of the defects in the dismissed claims discussed above, and explicitly warned that Emanuel would “not be given any further opportunity to amend the complaint to address issues raised by the motion to dismiss.” ECF No. 26. Emanuel's “failure to fix deficiencies in her previous pleadings is alone sufficient ground to deny leave to amend sua sponte.” Transeo S.A.R.L. v. Bessemer Venture Partners VI L.P., 936 F.Supp.2d 376, 415 (S.D.N.Y. 2013) (citing cases).
Unless and until the Court orders otherwise, Defendants shall file their Answer to Emanuel's remaining claims within three weeks of the date of this Opinion and Order. See Fed.R.Civ.P. 12(a)(4)(A). In addition, the initial pretrial conference is hereby reinstated and 20 RESCHEDULED for September 12, 2024, at 9:00 a.m. The conference will be held remotely in accordance with the Court's Individual Rules and Practices in Civil Cases, available at https://nysd.uscourts.gov/hon-jesse-m-furman. The parties are reminded that, no later than the Thursday before the initial pretrial conference, they are required to submit a joint status letter and proposed Case Management Plan. See ECF No. 12.
The Clerk of Court is directed to terminate ECF No. 36 and to terminate as Defendants the HRA, as well as Dinorah Rodriguez, Dennis Whinfield, and Marlene Wright in their official capacities.
SO ORDERED.