Opinion
Civil Action 20 Civ. 8544 (PGG) (SLC)
06-21-2021
YVETTE WILLIAMS-LAWSON, Plaintiff, v. SUBWAY SURFACE SUPERVISORS ASSOCIATION, MICHAEL CARRUBE, and WILLIAM TORRES, Defendants.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE:
I. INTRODUCTION
Pro se Plaintiff Yvette Williams-Lawson brings this employment discrimination action against Defendants Subway Surface Supervisors Association (“SSSA”), Michael Carrube, and William Torres (SSSA, Carrube, and Torres together, “Defendants”), asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”), New York State Human Rights Law, N.Y. Exec. L. §§ 290 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. (“NYCHRL”). (See ECF No. 2 (the “Complaint”)). Williams-Lawson alleges generally that Defendants terminated her employment, retaliated against her, and created a hostile work environment. (Id. at 10). She seeks to recover lost wages, compensation for vacation and sick time, and emotional distress. (Id. at 11).
Defendants now move for dismissal of Williams-Lawson's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 14 (the “Motion”)). For the reasons set forth below, I respectfully recommend that Defendants' Motion be converted to a motion for summary judgment under Federal Rule of Civil Procedure 56, and that the Motion be GRANTED.
II. BACKGROUND
A. Factual Background
1. Williams-Lawson's allegations
The Court describes the following facts Williams-Lawson set forth in her Complaint, to which she attached her Equal Employment Opportunity Commission (“EEOC”) Charge of Discrimination dated August 26, 2019 (the “EEOC Charge”). (ECF No. 2 at 14-17).
Williams-Lawson, who is female, African-American, and Jewish, alleges that she was the only African-American female “to be elected to an executive position, ” that is, Executive Vice President (“EVP”), of the SSSA, a union for transit supervisors. (ECF No. 2 at 10, 14). As the EVP, Williams-Lawson was “[second] in command” of the SSSA behind Carrube, who was the President. (Id. at 14). During her tenure as EVP, Williams-Lawson alleges that she “was systematically harassed, treated differently, slandered publicly, and disrespected” by Carrube and Torres, who was the SSSA's Secretary/Treasurer. (Id. at 10, 14).
Although Williams-Lawson alleges generally that Defendants' discriminatory treatment began in January or February of 2017, the first date on which Defendants engaged in any allegedly discriminatory act was in 2018, when she was removed from her role as co-creator and editor of the SSSA's annual magazine, “SSSA Express.” (ECF No. 2 at 15). Carrube hired a white male, Michael Skelly, to replace her and act as a publicist. (Id.) Carrube did not respond to her requests for a reason why she was removed from her role on SSSA Express. (Id.) Williams-Lawson's role was not mentioned in the 2018 and 2019 issues of SSSA Express, while the white males were mentioned, thus making her “invisible to the membership.” (Id.)
In October 2018, Carrube told Williams-Lawson that he would “come after” her after she assisted “a member who wanted to bring charges against him.” (ECF No. 2 at 16).
On April 25, 2019, Carrube, during an Executive Board meeting held while she was on vacation for Passover, “changed the structure and hierarchy of the union, and greatly diminished the role of EVP.” (ECF No. 2 at 14-15). On July 30, 2019, Carrube held a second Executive Board meeting, which he deliberately scheduled while she was on vacation. (Id. at 15). On August 26, 2019, Williams-Lawson learned that Carrube scheduled a Nominations Meeting for October 9, 2019, which fell on Yom Kippur, such that she would be unable to attend. (Id. at 14). Carrube then refused Williams-Lawson's requests for minutes to these meetings. (Id. at 15).
On July 18, 2019, Williams-Lawson discovered the Executive Conference Room was locked, and when she asked Carrube why, he gave her “an unbelievable [sic] lame reason, ” although she does not indicate what that reason was. (ECF No. 2 at 15). Carrube also refused to give her access to locked areas of the union hall, while “the staff ha[d] full access to these areas.” (Id.) Also in July 2019, Williams-Lawson “was summoned” to a staff meeting already in progress, and had to stand while all of the white males were seated. (Id. at 16).
On August 13, 2019, after Carrube “came to the hall and [she] wasn't there, ” Carrube sent Williams-Lawson a “threatening email, ” although she does not relay what the threats were. (ECF No. 2 at 15). Carrube also told her to “stay at the hall and help run the union[, a]s opposed to being out dealing with members face to face, ” which she alleges “is a tactic to prevent [her] from being in the field[] interacting with members[, ]” while other “[white] males on staff are free to come and go to interact with their colleagues.” (Id.)
On November 26, 2019, Williams-Lawson “was wrongfully terminated from the union, ” and Carrube terminated her “leave of absence from MTA-NYCT, ” such that she “had to return to [her] civil service title at MTA.” (ECF No. 2 at 10). Thereafter, Carrube refused to pay her for vacation and sick leave she accrued in 2019, and for sick leave she accrued in 2015-2018. (Id.) Carrube also refused to sign her time cards, which delayed the accurate calculation of her pension. (Id.)
Williams-Lawson's Complaint includes several undated incidents of alleged discrimination. Carrube and Torres made reservations for an annual union convention without notifying her, despite her past attendance at the convention. (ECF No. 2 at 15). Carrube refused Williams-Lawson's request to take Fridays off to prepare for the Sabbath, telling her that “most managers are off on Sundays.” (Id.) Carrube instructed Williams-Lawson to remove Bible quotes from her email signature. (Id.) After Williams-Lawson sent Carrube an email informing him that his staff, “comprised of predominantly white males, refused to follow [her] specific instructions on procedural matters, ” she “was retaliated against with a 2-week suspension without pay, and without due process.” (Id. at 16). When Williams-Lawson sought to reestablish a Women's Committee, she “was told” she could not do so. (Id.) When Williams-Lawson sought to arrange a meeting with all station supervisors, Carrube precluded the meeting, telling her “he wanted to concentrate on contract negotiations.” (Id.) At the same time, white male members held meetings in the hall. (Id.) Carrube instructed the SSSA's Executive Administrator not to give her access to updated membership information, while Skelly, a white male, was allowed access. (Id.) Williams-Lawson also alleges that Torres was in charge of ordering customized shirts for the SSSA, but refused her request to order female shirts, stating that “the place didn't sell female shirts.” (ECF No. 2 at 16). Williams-Lawson then purchased female shirts herself, but Torres refused her request to arrange for them to be customized, instead giving her the address of the customizer he used. (Id. at 16-17). Williams-Lawson took the female shirts to the customizer, but “the job was botched” and “the shirts were ruined.” (Id. at 17). Torres was also in charge of ordering business cards, but the ones he ordered for Williams-Lawson had “the wrong look and information on them.” (Id.) Williams-Lawson re-ordered her own cards, but when she went to pick them up, the employee told her that “Torres told him not to give [her] the cards.” (Id.)
2. The SSSA Constitution
The SSSA's Constitution states that the organization's objectives “are to organize supervisors engaged in the transportation and allied industries in the City of New York” for the purpose of, inter alia, improving supervisors' conditions of employment, “provide mutual aid and protection, ” and “establish and maintain harmonious relations between employees and employers.” (ECF No. 14-3 at 3 art. II). The Executive Board is the governing body of the SSSA “[b]etween meetings” of members, and consists of the President, EVP, Secretary/Treasurer, Executive Administrator, Field Representatives, Section Vice-Presidents, and Section Representatives. (Id. at 3 art. III § 3; 10-11 art. VIII § 7). Between meetings of the Executive Board, the Executive Officers - President, EVP, Secretary/Treasurer, and the Vice-Presidents for sections established by the Executive Board - have governing authority. (Id. at 3 art. III § 4; 11 art. VIII § 8). The Executive Officers are elected to four-year terms by the SSSA's members. (Id. at 7 art. VII §§ 1-2). The process by which members are nominated and elected for Executive Officer positions is detailed in the Constitution. (Id. at 7-8 art. VII § 2).
Defendants have submitted in support of the Motion the version of the SSSA Constitution effective July 17, 2007, and the version effective May 13, 2019. For purposes of the Motion, the only material difference to which Defendants point is that, in 2019, the Secretary/Treasurer was divided into two positions, Recording Secretary and Financial Treasurer. (See ECF Nos. 14-5 at 11 n.2; 14-4 at 18-21 art. VII §§ 4-5). The Court thus refers to the Constitution effective July 17, 2007 unless otherwise noted.
If any member holding an elected position fails to discharge his or her duties for three consecutive SSSA meetings, absent sufficient excuse, the Executive Board may declare that position vacant. (ECF No. 14-3 at 13 art. XI § 1). An Executive Officer can be removed from office “after due trial by the Trial Committee upon charges preferred [sic] against him/her in writing and sustained by a two-thirds (2/3) vote of both the Executive Board and the membership” of the SSSA present and voting at the special meeting called for the purpose of considering the charges. (Id. at 13 art. XI § 2).
The duties of the EVP include, inter alia, assisting the President, serving as the SSSA's chief grievance officer, co-signing checks, acting as trustee of SSSA funds, and performing duties assigned by the President. (ECF No. 14-3 at 9 art. VIII § 2). The EVP is a “full time Executive Officer.” (Id. at 9 art. VII § 2(h)). The Executive Board determines the amount of compensation for Executive Officers, provided there is no “reduction in compensation during his/her term of office.” (Id. at 14 § XIII).
B. Procedural History
On August 26, 2019, Williams-Lawson filed her EEOC Charge. (ECF No. 2 at 14). On March 3, 2020, the EEOC issued a right-to-sue notice stating that it was closing the file on Williams-Lawson's charge and that it was “unable to conclude that the information obtained establishes violations of the statutes.” (ECF No. 2 at 19 (the “EEOC Notice”)). The EEOC Notice also stated that it declined to certify that the SSSA was “in compliance with the statutes, ” and that Williams-Lawson had 90 days from that date to file any lawsuit against the SSSA under federal law or her “right to sue based on this charge will be lost.” (Id.; see id. at 21)).
On October 9, 2020, Williams-Lawson filed the Complaint. (ECF No. 2). On October 19, 2020, the Clerk of the Court issued summonses for the SSSA, Carrube, and Torres, who were then served by mail on November 2, 2020. (ECF Nos. 7, 9-11). After Defendants failed to answer or otherwise respond to the Complaint by the deadline of January 4, 2021, on January 5, 2021, the Court ordered Williams-Lawson to initiate default proceedings. (ECF No. 12 (the “January 5 Order”)). On January 13, 2021, Williams-Lawson requested certificates of default as to the Defendants. (ECF No. 13). Two days later, on January 15, 2021, Defendants filed the Motion. (ECF No. 14). With the Motion, Defendants filed the “Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings, ” as required by Local Civil Rule 12.1. (ECF No. 14-1 (the “12.1 Notice”)).
On January 21, 2021, Judge Gardephe amended the order of reference to direct the undersigned to prepare this Report and Recommendation on the Motion. (ECF No. 17). On February 4, 2021, Defendants asked the Court to vacate the January 5 Order and for an extension of time to file their reply in further support of the Motion, which Williams-Lawson opposed by letter dated the same day. (ECF Nos. 19, 20). On February 5, 2021, the Court granted Defendants' request, vacating the January 5 Order, granting Plaintiff until February 19, 2021 to file her opposition to the Motion, and granting Defendants until March 5, 2021 to file their reply. (ECF No. 21).
On February 18, 2021, Williams-Lawson submitted a letter, to which she attached her February 4, 2021 letter, stating that it was “part of [her] opposition to” the Motion. (ECF No. 22 (the “First Opposition”)). In the First Opposition, Williams stated that she “retired from MTA New York City Transit” on December 21, 2019, but has not received her full pension because Defendants failed to submit to the MTA all of her timecards for her tenure as EVP of the SSSA. (Id. at 1). She disputed Defendants' asserted basis for their untimely response to the Complaint, stated her interest in resolving the case through settlement, and referred to the allegations in her EEOC Charge. (Id. at 1-2). On February 19, 2021, Williams-Lawson requested an extension until March 19, 2021 to submit her opposition to the Motion. (ECF No. 23). On February 24, 2021, the Court granted that extension, and similarly extended Defendants' reply deadline to April 2, 2021. (ECF No. 24).
On March 22, 2021, Williams-Lawson filed a one-page letter referring the Court to her Complaint and listing seven examples of the discriminatory actions she faced as EVP of the SSSA: (i) she was denied access to areas of the workplace; (ii) she was wrongfully removed on November 26, 2019; (iii) she was suspended without cause and without pay for two weeks; (iv) she was precluded from participating in decisions and meetings; (v) she was excluded from union social and networking activities; (vi) she was “constantly subjected to disparate treatment”; and (vii) Defendants changed the Constitution “to ensure the EVP title no longer had the power it had prior to the Defendants being elected into the position [sic] ¶ 2014.” (ECF No. 25 (the “Second Opposition”)).
On April 2, 2021, Defendants filed their Reply in further support of the Motion. (ECF No. 26).
III. DISCUSSION
A. Legal Standards
1. Motion to dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Ent., 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 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).
“In applying this standard, a court accepts as true all well-pled factual allegations but does not credit ‘mere conclusory statements' or ‘[t]hreadbare recitals of the elements of a cause of action.'” Gottesfeld v. Anderson, No. 18 Civ. 10836 (PGG), 2020 WL 1082590, at *4 (S.D.N.Y. Mar. 6, 2020) (quoting Iqbal, 556 U.S. at 678). The Court shall not give “effect to legal conclusions couched as factual allegations.” Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007). “Where a court can infer no more than the mere possibility of misconduct from the factual averments - in other words, where the well-pled allegations of a complaint have not ‘nudged [plaintiff's] claims across the line from conceivable to plausible' - dismissal is appropriate.” Gottesfeld, 2020 WL 1082590, at *4 (quoting Twombly, 550 U.S. at 570).
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). “Where a document is not incorporated by reference, the court may never[the]less consider it where the complaint ‘relies heavily upon its terms and effect,' thereby rendering the document ‘integral' to the complaint.'” DiFolco, 622 F.3d at 111 (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006)). For a document to be integral to the complaint, “the plaintiff must have (1) ‘actual notice' of the extraneous information and (2) ‘relied upon th[e] document[] in framing the complaint.'” DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 60 (S.D.N.Y. 2010) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
In deciding a motion to dismiss, “the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted). Despite that consideration, “a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face.” Gottesfeld, 2020 WL 1082590, at *5. Despite the Court's obligation “to draw the most favorable inferences” from a complaint, it “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
Local Civil Rule 12.1 requires a represented party who moves to dismiss or for judgment on the pleadings supported by evidence outside the pleadings to provide the following notice to a pro se litigant:
The defendant in this case has moved to dismiss or for judgment on the pleadings pursuant to Ruel 12(b) or 12(c) of the Federal Rules of Civil Procedure, and has submitted additional written materials. This means that the defendant has asked the Court to decide this case without a trial, based on these written materials. You are warned that the Court may treat this motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For this reason, THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION ON TIME by filing sworn affidavits as required by Rule 56(c) and/or other documents. The full text of Rule 56 of the Federal Rules of Civil Procedure is attached.
In short, Rule 56 provides that you may NOT oppose the defendants' motion simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising specific facts that support your claim. If you have proof of your claim, now is the time to submit it. Any witness statements must be in the form of affidavits. An affidavit is a sworn statement of fact based on personal knowledge stating facts that would be admissible in evidence at trial. You may submit your own affidavit and/or the affidavits of others. You may submit affidavits that were prepared specifically in response to defendant's motion.
If you do not respond to the motion on time with affidavits and/or documents contradicting the facts asserted by the defendant, the Court may accept defendant's facts as true. Your case may be dismissed and judgment may be entered in defendant's favor without a trial.Local Civil R. 12.1.
2. Motion for summary judgment
“Summary judgment is warranted where the moving party shows that ‘there is no genuine dispute as to any material fact' and that it ‘is entitled to judgment as a matter of law.'” Gottesfeld, 2020 WL 1082590, at *5 (quoting Fed.R.Civ.P. 56(a)). “A dispute about a ‘genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). “[W]here the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.” Bay v. Times Mirror Mags., Inc., 936 F.2d 112, 116 (2d Cir. 1991).
In deciding whether summary judgment is warranted, the Court must “resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.” Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001). To avoid summary judgment, a plaintiff “must ‘do more than simply show that there is some metaphysical doubt as to the material facts.' . . . She must come forth with evidence sufficient to allow a reasonable jury to find in her favor.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “Mere conclusory statements, conjecture or speculation” by the plaintiff is not sufficient to defeat summary judgment. Gross v. Nat'l Broad. Co., 232 F.Supp.2d 58, 67 (S.D.N.Y. 2002).
“Although the same standards apply when a pro se litigant is involved, ‘the pro se litigant should be given special latitude in responding to a summary judgment motion.' . . . [T]he Court must liberally construe the claims of a pro se litigant.” Brown v. Selwin, 250 F.Supp.2d 299, 306- 07 (S.D.N.Y. 1999), aff'd, 29 Fed.Appx. 762 (2d Cir. 2002) (quoting Shepherd v. Fraisher, No. 96 Civ. 3283 (JGK), 1999 WL 713839, at *2 (S.D.N.Y. Sept. 14, 1999) (internal citation omitted)).
B. Application
1. Conversion to summary judgment
In support of the Motion, Defendants have submitted materials that fall outside the scope of the Complaint - that is, the SSSA Constitution. (ECF Nos. 14-3, 14-4). When they filed the
Motion, Defendants also served on Williams-Lawson the 12.1 Notice as required by the Court's Local Civil Rules. (ECF No. 14-1). Accordingly, it is appropriate for the Court to consider Defendants' Motion “as one brought under Rule 56.” Taggart v. Off. of Inspector Gen., No. 10 Civ. 5447 (PGG), 2011 WL 13128214, at *2 (S.D.N.Y. Sept. 22, 2011), aff'd sub nom. Taggart v. Off. of Inspector Gen. (OIG), 530 Fed.Appx. 17 (2d Cir. 2013).
2. The Title VII claim is untimely.
a. Applicable law
Title VII requires a plaintiff alleging discrimination to file a charge with the EEOC before filing an action in federal court. See Moore v. City of New York, No. 08 Civ. 8879 (PGG), 2010 WL 742981, at *7 (S.D.N.Y. Mar. 2, 2010); Kubicek v. Westchester Cty., No. 08 Civ. 372 (KMK), 2009 WL 3720155, at *4 (S.D.N.Y. Oct. 8, 2009). “Under Title VII, a claim must be filed in federal court within 90 days of the plaintiff's receipt of a right-to-sue letter from the EEOC.” Rivera v. Child.'s & Women's Physicians of Westchester, LLP, No. 16 Civ. 714 (PGG) (DF), 2017 WL 1065490, at *8 (S.D.N.Y. Mar. 18, 2017) (citing 42 U.S.C. § 200e-5(f)(1)). “[The 90-day] 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. A1 Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)); see Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 38 (2d Cir. 2011) (finding Title VII claim filed 93 days after receipt of right-to-sue notice was untimely); Rivera, 2017 WL 1065490, at *10 (finding Title VII claim filed 92 days after receipt of right-to-sue notice was untimely). “Although pro se plaintiffs are entitled to leniency in other areas of litigation, the case law is clear: The 90-day deadline is strictly enforced against represented and pro se plaintiffs alike.” Perez v. Mason Tenders Dist. Council Tr. Funds, No. 17 Civ. 1022 (PAE) (AJP), 2017 WL 5125542, at *3 (S.D.N.Y. Nov. 1, 2017) (collecting cases in which Title VII claims were dismissed as untimely for being filed just a few days late), aff'd, 742 Fed.Appx. 584 (2d Cir. 2018).
“There is a presumption that a notice provided by a government agency was mailed on the date shown on the notice.” Tiberio, 664 F.3d at 37. “There is a further presumption that a mailed document is received three days after its mailing.” Id. “Although such presumptions are convenient and reasonable in the absence of evidence to the contrary, ” these presumptions are not “irrebuttable.” Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996). “[A]llegations in a complaint-in addition to testimony or affidavits-may be sufficient to rebut the presumption.” Rivera, 2017 WL 1065490, at *8; Johnson El v. New York City Admin. for Child.'s Servs., No. 19 Civ. 4352 (LGS), 2021 WL 293327, at *3 (S.D.N.Y. Jan. 28, 2021) (explaining that plaintiff can rebut three-day mailing presumption with “‘sworn testimony or other admissible evidence'”) (quoting Sherlock, 84 F.3d at 526).
b. Application
Williams-Lawson's EEOC Notice is dated March 3, 2020. (ECF No. 2 at 19, 21). She filed the Complaint on October 9, 2020, over seven months after the presumed date of receipt of the EEOC Notice. (Id.) In neither the First nor the Second Opposition does Williams-Lawson offer any affidavit or other evidence to rebut the three-day presumption of receipt, nor any grounds to warrant excusing the filing deadline under the doctrine of equitable tolling. See Johnson El, 2021 WL 293327, at *3-4 (finding evidence insufficient to rebut three-day presumption or to apply equitable tolling). Accordingly, I recommend that Williams-Lawson's Title VII claim be dismissed with prejudice as untimely. See Saudagar v. Walgreens Co., No. 18 Civ. 437 (KPF), 2019 WL 498349, at *11 (S.D.N.Y. Feb. 8, 2019) (dismissing untimely Title VII claim with prejudice).
3. Williams-Lawson is not an employee covered by Title VII.
In the event that the District Court disagrees with the conclusion that Williams-Lawson's Title VII claim is untimely, I address Defendants' alternative argument that she was not an “employee” under Title VII. (ECF No. 14-5 at 13-14).
Defendants also argue that SSSA is not an “employer” under Title VII, and Carrube and Torres were individual supervisors not subject to suit under Title VII. (ECF No. 14-5 at 10-13). Because Williams-Lawson is not an “employee” under Title VII, she cannot sustain a claim under Title VII and it is unnecessary to reach these alternative arguments.
a. Applicable law
“Title VII makes it ‘an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'” Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 370 (2d Cir. 2006) (quoting 42 U.S.C. § 2000e-2(a)). “[T]he existence of an employer-employee relationship is [thus] a primary element of Title VII claims.” Id. The Second Circuit has noted that, “[a]lthough Title VII provides definitions of both ‘employer' and ‘employee, ' neither definition is particularly helpful in deciding whether an employment relationship exists.” Id. at 370-71. As a result of this definitional ambiguity, “the Supreme Court has stressed that, ‘when Congress has used the term “employee” without defining it, . . . Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.'” Id. at 371 (quoting Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989)). As further guidance to determine when an individual is an employee, “the Supreme Court culled the following non-exhaustive, thirteen-factor list of considerations from federal case law and the Restatement (Second) of Agency:
Under Title VII, “[t]he term ‘employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service . . ., or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26 . . . .” 42 U.S.C. § 2000e(b).
Under Title VII, “[t]he term ‘employee' means an individual employed by an employer.” 42 U.S.C. § 2000e(f).
[T]he hiring party's right to control the manner and means by which the product is accomplished . . .[;] the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.Gulino, 460 F.3d at 371 (quoting Reid, 490 U.S. at 751-52).
“In this Circuit, however, ‘courts turn to common-law principles to analyze the character of an economic relationship only in situations that plausibly approximate an employment relationship.'” Gulino, 460 F.3d at 372 (quoting O'Connor v. Davis, 126 F.3d 112, 115 (2d Cir. 1997) (internal citation omitted)). “[A] prerequisite to considering whether an individual is [an employee] under common law agency principles is that the individual have been hired in the first instance.” O'Connor, 126 F.3d at 115 (emphasis added). To determine whether an individual has been “hired, ” courts look to “whether [a plaintiff] has received direct or indirect remuneration from the alleged employer.” Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468, 473 (2d Cir. 1999) (internal citation omitted). “Where no financial benefit is obtained by the purported employee from the employer, no plausible employment relationship of any sort can be said to exist.” O'Connor, 126 F.3d at 115-16 (internal citation omitted).
b. Application
Although Williams-Lawson alleges that Carrube failed to pay her compensation in the form of vacation and sick leave, she fails to meet the threshold showing that the SSSA hired her, and for that reason, cannot establish Defendants' liability under Title VII. See Gulino, 460 F.3d at 379. The SSSA Constitution provides that the EVP is one of the four categories of Executive Officers who “shall be elected” by the SSSA's “membership at large.” (ECF No. 14-3 at 7 art. VII § 1). The record does not reflect when or how Williams-Lawson was elected as EVP, but the process by which a member is nominated and elected as EVP is detailed in the SSSA Constitution, and Williams-Lawson does not allege or present any evidence that her election occurred in a different manner. (Id. at 7 art. VII §§ 1-2). Accordingly, the undisputed record on the Motion reflects that Williams-Lawson was elected, not hired, and therefore she has not demonstrated the “prerequisite” showing that she was an employee under Title VII. O'Connor, 126 F.3d at 115-16; see Gulino, 460 F.3d at 379, 388 (dismissing Title VII claim against defendant who did not hire any plaintiff).
Even if Williams-Lawson met the threshold requirement of having been hired by Defendants, she “would still need to show [the] traditional master-servant relationship under the multi-factor test from Reid[, ]” a standard that “focuses largely on the extent to which the alleged master has ‘control' over the day-to-day activities of the alleged ‘servant.'” Gulino, 460 F.3d at 379. The Second Circuit has explained that “[t]he Reid factors countenance a relationship where the level of control is direct, obvious, and concrete, not merely indirect or abstract.” Id. In addition, the Supreme Court has explained that, when considering whether a board member is an employee, courts should consider six non-exhaustive factors: (1) “[w]hether the organization can hire or fire the individual or set the rules and regulations of the individual's work;” (2) “[w]hether and, if so, to what extent the organization supervises the individual's work”; (3) “[w]hether the individual reports to someone higher in the organization”; (4) “[w]hether and, if so, to what extent the individual is able to influence the organization”; (5) “[w]hether the parties intended that the individual be an employee, as expressed in written agreements or contracts”; and (6) “[w]hether the individual shares in the profits, losses, and liabilities of the organization.” Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 449-50 (2003) (quoting 2 Equal Emp. Opportunity Comm'n, Compliance Manual § 605:0009).
Applying these factors, the Court finds that no reasonable juror could find that Williams-Lawson was an employee of Defendants. As discussed above, Williams-Lawson was not hired but rather was elected to the position of EVP, and could be removed only after a trial by the Trial Committee and a vote of two-thirds of the SSSA's membership. (ECF No. 14-3 at 7 art. VII § 1; 13 art. XI § 2; see ECF No. 2 at 14 (referring to the fact that Williams-Lawson was “elected to the position of [EVP]”)). In addition, the SSSA Constitution, not the SSSA, established her duties. (ECF No. 14-3 at 9 art. VIII § 2). Those duties included acting as a “chief grievance officer, ” indicating the extent to which she had influence over the organization. (Id.) In addition, as EVP, Williams-Lawson was a member of the SSSA's Executive Board, which was the SSSA's “governing body . . . between regular or special membership meetings.” (Id. at 11 art. VIII § 7; see ECF No. 2 at 14 (as EVP, Williams-Lawson was “2nd in command”)). Williams-Lawson does not allege that any written employment agreement existed, and as a non-profit labor organization, there were no profits, losses, or liabilities in which she could have had to share. (ECF No. 14-3 at 3 art. II (describing the SSSA's objectives)). While Carrube, as President, could assign her duties, there is no indication that Torres, as Secretary/Treasurer, could do so. (Id. at 9 art. VIII § 2(i)).
Accordingly, on balance, the Clackamas factors demonstrate that, as a matter of law, Williams-Lawson was not an employee under Title VII and cannot maintain a Title VII claim. Therefore, summary judgment dismissing the Title VII claim is appropriate.
4. § 1981 claims
The Court construes Williams-Lawson's complaint as asserting claims under § 1981 for discrimination, retaliation, and hostile work environment. (ECF No. 2 at 9-10). See Jean-Louis v. Am. Airlines, No. 08 Civ. 3898 (FB), 2010 WL 3023943, at *3 (E.D.N.Y. July 30, 2010) (interpreting complaint to assert § 1981 claims for discrimination, retaliation, and hostile work environment).
Section 1981 provides that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and extractions of every kind, and to no other.42 U.S.C. § 1981(a). Under this statute, “make and enforce contracts” is defined to “include[] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b).
Accordingly, any § 1981 claim “must initially identify an impaired ‘contractual relationship'” pursuant to “which the plaintiff has rights.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (quoting 42 U.S.C. § 1981(b)). According to the United States Supreme Court, “[§] 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.” Id. The statute does not protect against alleged “discrimination on the basis of gender[, ] . . . religion, national origin, or age.” Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998) (internal citations omitted); see Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (holding that § 1981 does not prohibit alleged discrimination as to religious expression); Williams v. Victoria's Secret, No. 15 Civ. 4715 (PGG) (JLC), 2017 WL 1162908, at *9 (S.D.N.Y. Mar. 28, 2017) (dismissing § 1981 claim based on alleged age discrimination).
“[T]he Second Circuit has held that [§] 1981 does not require the exhaustion of administrative remedies.” Bradley v. Rockland Cnty. Cmty. Mental Health Ctr., No. 79 Civ. 6722 (GLG), 1980 WL 250, at *3 (S.D.N.Y. Oct. 1, 1980) (citing Goss v. Revlon, 548 F.2d 405, 407 (2d Cir. 1976)). The statute of limitations for claims under § 1981 is four years. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). As noted above, the earliest specific instance of Defendants' alleged unlawful actions was 2018 (ECF No. 2 at 14-16), and Williams-Lawson filed her Complaint on October 9, 2020, thus making her § 1981 claims timely.
a. Discrimination
i. Applicable law
To plead discrimination under § 1981, “a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). A plaintiff asserting a § 1981 claim “must demonstrate some affirmative link to causally connect the [defendant] with the discriminatory action . . . [P]ersonal liability under [§] 1981 must be predicated on the [defendant's] personal involvement.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (citation omitted).
To establish a prima facie case of discrimination under § 1981, the plaintiff must show that “(1) she belongs to a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) she ‘has . . . some minimal evidence suggesting an inference that [her] employer acted with discriminatory motivation.'” Jones-Cruz v. Rivera, No. 19 Civ. 6910 (PGG), 2021 WL 965036, at *7 (S.D.N.Y. Mar. 14, 2021) (quoting Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015)). “The burden then shifts to the employer to articulate ‘a legitimate, non-discriminatory reason' for the employment action.” Concey v. N.Y. State Unified Ct. Sys., No. 08 Civ. 8858 (PGG), 2011 WL 4549386, at *14 (S.D.N.Y. Sept. 30, 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). “‘[O]nce the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision,' the presumption raised by the prima facie case is rebutted and drops from the case.” Id. (quoting Reeves, 530 U.S. at 143). The plaintiff then has the “opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not true reasons, but were a pretext for discrimination.” Id. (quoting Reeves, 530 U.S. at 143). “[T]he test for summary judgment is [ultimately] whether the evidence can reasonably support a verdict in plaintiff's favor.” James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).
To demonstrate an adverse employment action for purposes of a § 1981 discrimination claim, a plaintiff must demonstrate that she suffered “‘. . . a materially adverse change in the terms and conditions of employment.'” Morgan v. NYS Att'y Gen.'s Off., No. 11 Civ. (PKC) (JLC), 2013 WL 491525, at *5 (S.D.N.Y. Feb. 8, 2013) (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). “‘To be materially adverse[, ] a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.'” Id. (quoting Galabya, 202 F.3d at 640).
To demonstrate discriminatory intent, the Second Circuit has explained that “[a]n inference of discrimination can arise from circumstances including . . . more favorable treatment of employees not in the protected group.” Johnson v. Andy Frain Servs., Inc., 638 Fed.Appx. 68, 70 (2d Cir. 2016) (quoting Littlejohn, 795 F.3d at 312). A plaintiff who relies on disparate treatment evidence, however, “must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” Id. at 70 (quoting Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)).
ii. Application
Defendants argue that Williams-Lawson's § 1981 claim is defective because she has failed to demonstrate “that she was the victim of racial discrimination with respect to a breach of her rights under the [SSSA] [C]onstitution.” (ECF No. 14-5 at 15-16).
Williams-Lawson's allegations that she was suspended without pay for two weeks and terminated (see ECF No. 25) constitute materially adverse changes in employment for purposes of her § 1981 claim. See Morales v. Div. of Youth & Fam. Just., No. 14 Civ. 7253 (JGK), 2019 WL 3430168, at *4 (S.D.N.Y. July 30, 2019) (“Examples of materially adverse employment actions include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.'”) (quoting Sanders v. N.Y.C. Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)). The Court finds, however, that her allegations that she was not able to access areas of the workplace, not permitted to take Fridays instead of Sundays off, excluded from meetings and networking opportunities, denied meeting minutes, and removed from the SSSA magazine fall into the category of “slights” that are equivalent to “[e]veryday workplace grievances, disappointments, and setbacks” that “do not constitute adverse employment actions” to support a § 1981 claim. Walder v. White Plains Bd. of Educ., 738 F.Supp.2d 483, 498 n.18 (S.D.N.Y. 2010) (internal citation omitted); see Jones-Cruz, 2021 WL 965036, at *8 (“A less desirable work schedule, without more, does not constitute a materially adverse change in the terms and conditions of employment”) (collecting cases); Concey, 2011 WL 4549386, at *15-16 (holding that plaintiff's alleged lack of access to areas of the workplace were “inconveniences” that were “not ‘material'”). Accordingly, Williams-Lawson's § 1981 claim may rest only on her alleged suspension without pay and termination.
In their memorandum of law, Defendants state that Williams-Lawson's “two week suspension was apparently with pay” and that her “‘termination' was in fact the loss of her union release leave of absence.” (ECF No. 14-5 at 21). Because Defendants offer no evidentiary support for these statements, they do not negate the Court's conclusion that Williams-Lawson's alleged suspension without pay and termination constitute adverse employment actions. See Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (“An attorney's unsworn statements in a brief are not evidence.”); Giannullo v. City of New York, 322 F.3d 139, 142 (2d Cir. 2003) (“[A] memorandum of law . . . is not evidence at all.”).
To succeed on her § 1981 claim, however, Williams-Lawson must also establish that “similarly situated employees were treated differently from [her].” Concey, 2011 WL 4549386, at *15. As the Second Circuit has explained, “where a plaintiff seeks to make out her prima facie case by pointing to the disparate treatment of a purportedly similarly situated employee, the plaintiff must show that she shared sufficient employment characteristics with that comparator so that they could be considered similarly situated.” McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (internal citation omitted). Unfortunately, Williams-Lawson has failed to plead, or show evidence in response to the Motion, demonstrating that she is similarly situated to individuals whom she believes were treated better than she was. Indeed, she does not even allege Carrube's and Torres's race or ethnicity. The only allegations that white individuals were treated differently than she are that “predominantly white” male staff were able to sit in a meeting in which she had to stand, and that “predominantly white male[]” staff refused to follow her instructions. (ECF No. 2 at 16). Williams-Lawson does not allege, however, what role these other individuals had at the SSSA, that they “were subject to the same performance evaluation and discipline standards, ” or any other identifying information. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). Her description of these individuals as “staff” (ECF No. 2 at 16), instead indicates that they were not similarly situated - the SSSA Constitution provides that Executive Officers, which includes the EVP, are elected, but does not specify how staff are chosen and leaves their duties to be “assigned by the President.” (ECF No. 14-3 at 11 §§ 8-9). Furthermore, her “assertion that [s]he is Black and they are White is simply insufficient as a factual pleading to allege racially motivated discrimination for purposes of a plausible [§] 1981 claim.” Jones-Cruz, 2021 WL 965036, at *9 (quoting Raymond v. City of New York, 317 F.Supp.3d 746, 766 (S.D.N.Y. 2018)) (internal quotation marks omitted); see Smalls v. Allstate Ins. Co., 396 F.Supp.2d 364, 371-72 (S.D.N.Y. 2005) (“[A] [p]laintiff's speculations, generalities, and gut feelings, however genuine, when they are not supported by specific facts, do not allow for an inference of discrimination to be drawn.” (quoting Little v. State of New York, No. 96 Civ. 5132 (SJ), 1998 WL 306545, at *6 (E.D.N.Y. June 8, 1998), aff'd, 173 F.3d 845 (2d Cir. 1999))). Accordingly, the Court finds that Williams-Lawson “has not shown that [she was] similarly situated” to the “staff” she contends were treated more favorably than she was and therefore has not established a § 1981 discrimination claim. Concey, 2011 WL 4549386, at *15.
b. Retaliation
i. Applicable law
To establish a retaliation claim under § 1981, a plaintiff “must satisfy four elements: 1) [she] engaged in a protected activity, 2) Defendants knew of the protected activity, 3) Defendants took adverse action against Plaintiff, and 4) a causal connection existed between the protected activity and the adverse employment action.” Whitley v. Montefiore Med. Grp., No. 12 Civ. 4176 (LTS), 2016 WL 1267788, at *10 (S.D.N.Y. Mar. 30, 2016) (quoting Cretella v. Liriano, 633 F.Supp.2d 54, 74 (S.D.N.Y. 2009)) (explaining that these are required elements for retaliation claim under § 1981). “The trial court's role in evaluating a retaliation claim on summary judgment is to determine whether the proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.” Id. (citing Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)). In addition, the plaintiff must present “proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
For the first element, the term “protected activity” refers to “action taken to protest or oppose statutorily prohibited discrimination.” Wimes v. Health, 157 Fed.Appx. 327, 328 (2d Cir. 2005) (citation omitted). The plaintiff must “demonstrate that she has asserted a claim of discrimination based on her status as a member of a protected category.” Whitley, 2016 WL 1267788, at *11. “A generalized complaint about perceived mistreatment without a specific connection to discrimination based on membership in a protected class is insufficient to establish a protected activity.” Id.
For the fourth element, a plaintiff may provide either direct evident of retaliatory animus, or, in the absence of direct evidence, “must rely on circumstantial evidence; namely[, ] the temporal proximity between the alleged protected activity and retaliatory adverse action.” Whitley, 2016 WL 1267788, at *11. Generally, a gap of two to three months is “hardly the close proximity of time” sufficient to establish the causal element of a retaliation claim. Ponticelli v. Zurich Am. Ins. Grp., 16 F.Supp.2d 414, 436 (S.D.N.Y. 1998); see Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (holding that three-month gap between protected act and adverse action was insufficient to meet the “very close” proximity requirement); Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990) (same).
ii. Application
The Court finds that Williams-Lawson has failed to establish the second and fourth required elements. Williams-Lawson states that after she informed Carrube “that his staff, which is comprised of predominantly white males, refused to follow [her] specific instructions on procedural matters, ” she “was retaliated against with a 2-week suspension without pay.” (ECF No. 2 at 16). The Court interprets Williams-Lawson to be alleging that staff refused to follow her instructions because she is Black, and that her email to Carrube was protected activity for purposes of a retaliation claim.
The Court finds that such a complaint does not constitute protected activity because a racial comment or discriminatory act by a co-worker or subordinate, “absent any allegation that [he] was involved in any decision affecting plaintiff's employment, is insufficient to establish a § 1981 claim” for retaliatory termination. Jean-Louis, 2010 WL 3023943, at *8; see Griffin v. Ambika Corp., 103 F.Supp.2d 297, 309 (S.D.N.Y. 2000) (finding it “fatal” to plaintiffs' claim that none of the racist remarks in complaint were made by a decision-maker). As set forth above, Williams-Lawson was an elected Executive Officer of the SSSA, and the SSSA Constitution does not vest staff with any decision-making authority over her election, duties, or removal. (See § III(B)(3)(b), supra; see ECF No. 14-3 at 7-8 art. VII; 9 art. VIII § 2; 13 art. XI). Therefore, the conduct about which she was complaining was not “statutorily prohibited discrimination, ” and her email to Carrube was not “protected activity.” Wimes, 157 Fed.Appx. at 328.
Even if Williams-Lawson's email to Carrube did constitute protected activity, she has not shown when she sent the email, nor when she received the suspension without pay. Absent this information, she has failed to establish the temporal proximity between the alleged protected activity (her email to Carrube) and the retaliatory adverse action (the suspension). See Whitley, 2016 WL 1267788, at *11 (granting summary judgment dismissing retaliation claim where plaintiff failed to demonstrate “causal nexus”).
Accordingly, Williams-Lawson has not established a retaliation claim under § 1981.
c. Hostile work environment
i. Applicable law
To establish a hostile work environment claim under § 1981, a plaintiff must demonstrate either that “a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (citation omitted); see Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723-24 (2d Cir. 2010) (explaining that § 1981 “plaintiff ‘must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered'” (quoting Alfano, 294 F.3d at 373-74)). “Courts analyzing hostile work environment claims consider the totality of the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the employee's work performance.'” Whitley, 2016 WL 1267788, at *9 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “This inquiry has both objective and subjective prongs: ‘the misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.'” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (internal citations omitted)). “Severity is [the] hallmark of a hostile work environment claim[], ” which is “not intended to promote or enforce civility, gentility or even decency.” Fernandez v. City of New York, No. 12 Civ. 2125 (RWS), 2012 WL 2402642, at *4 (S.D.N.Y. June 26, 2012) (quoting Ennis v. Sonitrol Mgmt. Corp., No. 02 Civ. 9070, 2006 WL 177173, at *9 (S.D.N.Y. Jan. 25, 2006)).
“[T]he plaintiff must show ‘more than a few isolated incidents of racial enmity.'” Williams v. Cnty. of Westchester, 171 F.3d 98, 100-01 (2d Cir. 1999) (quoting Snell v. Suffolk Cnty., 782 F.2d 1094, 1103 (2d Cir. 1986)). “Cases in which a single incident was found to be sufficiently severe to support a hostile work environment claim include those where the plaintiff was physically assaulted.” Jean-Louis, 2010 WL 3023943, at *5-6 (finding that single incident of racial remark accompanied by physical assault were sufficient to support racially hostile work environment claim).
ii. Application
Although Williams-Lawson satisfies the subjective element of a hostile work environment claim-she believed that the environment at the SSSA was abusive-the Court finds that she has failed to satisfy the objective element of this claim. Williams-Lawson does not allege that anyone, including Carrube, her superior, made any racially-based comments to or about her or physically assaulted her; the only incidents with any arguably racial component are the July 2019 meeting during which she stood while white males, who arrived before her, sat, and her belief that race was the reason Carrube's staff failed to follow her instructions. (ECF No. 2 at 16). Having to stand for a single meeting, for which she admittedly was the last to arrive, fails to demonstrate “conduct sufficiently severe or pervasive to alter [her] conditions of employment or create an abusive working environment.” Fernandez, 2012 WL 2402642, at *5. Williams-Lawson also does not describe any statements on which she bases her belief that race was the basis for the staff's refusal to follow her instruction; it appears to rest only on the fact that Carrube's staff was “predominately white, ” while she is Black, (ECF No. 2 at 16), which is “insufficient . . . to allege racially motivated discrimination for purposes of a plausible [§] 1981 claim.” Jones-Cruz, 2021 WL 965036, at *9 (quoting Raymond, 317 F.Supp.3d at 766). These events simply do “not rise to the severity necessary to constitute a hostile work environment.” Gadsden v. Bernstein Litowitz Berger & Grossman, 323 Fed.Appx. 59, 60-61 (2d Cir. 2009) (affirming dismissal of hostile work environment claim); see Whitley, 2016 WL 1267788, at *10 (granting summary judgment dismissing hostile work environment claim where “context” was “not one of racial hostility”).
Accordingly, the Court finds that Williams-Lawson has failed to establish a hostile work environment claim under § 1981.
Because the Court recommends dismissal of each of Williams-Lawson's § 1981 claims on their merits, it is unnecessary to reach Defendants' argument that they are barred for failure to exhaust internal union remedies. (ECF No. 14-5 at 16-18).
5. NYSHRL and NYCHRL claims
“A district court may decline to exercise supplemental jurisdiction over a claim if it ‘has dismissed all claims over which it has original jurisdiction.'” Fitzgibbons v. Putnam Dental Assocs., P.C., 368 F.Supp.2d 339, 345 (S.D.N.Y. 2005) (quoting 28 U.S.C. § 1367(c)). In deciding whether to exercise supplemental jurisdiction over state or local claims, the district court has “considerable discretion over what state law claims it will include within its supplemental jurisdiction in a particular case.” Yaba v. Cadwalader, Wickersham & Taft, 931 F.Supp. 271, 275 (S.D.N.Y. 1996) (quoting Cushing v. Moore, 970 F.2d 1103, 1110 (2d Cir. 1992)).
Because all of Williams-Lawson's federal claims are subject to dismissal, I respectfully recommend that the District Court exercise its discretion to dismiss her NYSHRL and NYCHRL claims without prejudice. See Fitzgibbons, 368 F.Supp.2d at 345 (dismissing state law claims where all federal claims were dismissed).
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend that the Motion be GRANTED, that Williams-Lawson's Title VII and § 1981 claims be DISMISSED WITH PREJUDICE, and her NYSHRL and NYCHRL claims be DISMISSED WITHOUT PREJUDICE.
SO ORDERED
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Williams-Lawson does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, she may request copies from Defendants' counsel. See Local Civ. R. 7.2.