Opinion
21-CV-5053 (VEC) (JLC)
07-14-2022
MAYRA OBERGH and IVONNE BRITO, Plaintiffs, v. BUILDING MAINTENANCE SERVICES, LLC and ETHICAL CULTURE FIELDSTON SCHOOL, Defendants.
To the Honorable Valerie E. Caproni, United States District Judge:
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Mayra Obergh and Ivonne Brito (“Plaintiffs”), proceeding pro se, bring this gender-based employment discrimination action against Building Maintenance Services LLC and the Ethical Culture Fieldston School (“Defendants”) under Title VII of the Civil Rights Act and the New York City Human Rights Law. Defendants have moved to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. They argue that Brito did not comply with certain procedural requirements prior to bringing suit, and that both Plaintiffs have failed to state a claim for relief in their Complaint. For the reasons set forth below, I recommend that the motion be granted with prejudice as to Brito but without prejudice to Obergh amending her claims in a further pleading.
I. BACKGROUND
A. Factual Background
The following facts are taken from the Complaint dated June 7, 2021 and its accompanying documents, and are accepted as true for purposes of the pending motion. See, e.g., Smolen v. Wesley, No. 16-CV-2417 (KMK), 2019 WL 4727311, at *4 (S.D.N.Y. Sept. 25, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); Marecheau v. Equal Emp't Practices Comm'n, No. 13-CV-2440 (VEC), 2014 WL 5026142, at *2 (S.D.N.Y. Sept. 30, 2014) (on motion to dismiss, courts may consider “any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference . . . and documents possessed by or known to the plaintiff and upon which [plaintiff] relied in bringing the suit” (citation omitted)). Because Plaintiffs are proceeding pro se, the Court also considers allegations made for the first time in their opposition papers. See, e.g., Saudagar v. Walgreens Co., No. 18-CV-437 (KPF), 2019 WL 498349, at *1 n.1 (S.D.N.Y. Feb. 8, 2019) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”) (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)).
Defendants have submitted additional material to the Court, including Brito's complaint to the New York City Commission on Human Rights (“CCHR”) dated April 24, 2018, the affidavit of Armand Osmanovic (“Osmanovic”), the Director of Human Resources for Building Maintenance Services, and the Opinion and Award from an earlier arbitration proceeding (“Arbitration Award”). See Reply Declaration of Jerrold F. Goldberg dated February 24, 2022, Exhibit 1, Dkt. No. 28-1 (“CCHR Complaint”); Affidavit of Armand Osmanovic in Support of the Motion to Dismiss dated November 16, 2021, Dkt. Nos. 19 (“Osmanovic Aff.”) and 19-1 (Arbitration Award). Based on the legal standards for reviewing a motion to dismiss discussed elsewhere in this Report, the Court will consider the CCHR complaint because Plaintiffs incorporated it by reference in their pleadings, and because the answer to the CCHR complaint, as well as the Notice of Administrative Closure, were annexed to the Complaint. See, e.g., Marecheau, 2014 WL 5026142, at *2. Additionally, courts may resolve jurisdictional fact issues by referring to materials outside the pleadings. See, e.g., Doe v. Trump Corp., 385 F.Supp.3d 265, 274 (S.D.N.Y. 2019). However, the Arbitration Award will not be considered for the truth of its contents because it is “material[] outside the pleadings” that may only be considered if the motion is treated as one for summary judgment after affording the parties the opportunity to conduct appropriate discovery. See, e.g., Drew v. City of New York, 18-CV-10714 (ER), 2019 WL 3714932, at *2 (S.D.N.Y. Aug. 6, 2019); see also Saudagar, 2019 WL 498349, at *4.
Plaintiffs are both women who were employed as cleaners by Building Maintenance Services LLC (“BMS”) and stationed for work at the Ethical Culture Fieldston School (“Fieldston”) in the Bronx. Plaintiffs' Opposition (“Pl. Opp.”), Dkt. No. 27, at 3, 4. Brito had been employed since September 2009 at the time of the incidents giving rise to this lawsuit, and Obergh had been employed for an unknown period of time. CCHR Complaint ¶ 7. In or around February 2017, Plaintiffs allege that they were assigned to shovel snow one night sometime between 10:00 p.m. and 1:00 a.m., which was a task outside the scope of their usual employment. See Pl. Opp. at 3-4. They contend that they worked on this task alongside five other cleaners, all of whom were male and employed “under the same terms and with the same job title and responsibilities” as Plaintiffs. Pl. Opp. at 4. The seven cleaners allegedly worked in the snow for hours, without access to a building with heat, which was a “dangerous” condition that caused the elderly and diabetic Obergh to shake and her hands to turn purple. Id.
Plaintiffs allege that each of the cleaners assigned to shovel snow during this incident “made a complaint both to directors at Fieldston and to BMS.” Id. However, after these complaints, Plaintiffs contend that “[immediately] . . . things began to change” for them, but not for their male coworkers who also made complaints. Id. For instance, Plaintiffs allege that they were given more work than their male coworkers, newly forced to work on Saturdays and Sundays when their male colleagues were not, and once made to continually clean a single bathroom for 8 hours “as if they were being hazed.” Id. They also contend that they were not provided with the same assistance and support from Fieldston and BMS that was given to their male colleagues. Id.
In the CCHR Complaint, Brito alleges that it was “[i]n or around the summer of 2017” that she “began noticing” that BMS gave her and other female maintenance employees “more work and difficult assignments compared to the male maintenance employees” and that they “received more criticism and monitoring of their work” from BMS than other male maintenance employees. CCHR ¶ 9. The CCHR Complaint does not mention the snow shoveling incident.
On September 20, 2017, Plaintiffs allege that they began their shift at Fieldston “as usual,” but Fieldston employee Noel Soriano (“Soriano”) assigned them extra work in another building that “was already staffed by two men[.]” Id.; see also Complaint (“Compl.”), Dkt. No. 3, at 5. They contend that when they arrived at the other building to do the work as assigned, it had already been completed. Pl. Opp. at 4.
According to Plaintiffs, following this incident Soriano “lied” to a BMS supervisor that Plaintiffs “had acted insubordinately,” and they were subsequently suspended for one day. Id. Plaintiffs allege in their opposition papers that after their one day suspension, they returned to Fieldston, where a BMS employee informed them that they “wouldn't be permitted to work, asked them to return their keys, and gave them 15 minutes to gather their belongings and leave.” Id. at 4-5. Plaintiffs contend that they were specifically told they “could not clock in because [they] no longer work for the company.” Compl. at 6. “Several days later, [Plaintiffs] were fired by BMS.” Pl. Opp. at 5.
Plaintiffs point out that before September 20, 2017, there had been no complaints or notices of poor work performance at Fieldston against them. Id. at 5. They also contend that their “male colleagues had received suspensions for many different types of misconduct including disrespect to superiors, lasting multiple weeks.” Id. According to Plaintiffs, their union “pursued their case through arbitration.” Id. They claim that the arbitration process found the termination to be “without just cause,” and revealed further evidence of sexism, including documents in which male supervisors referred to Plaintiffs disrespectfully, and evidence that a new female hire at Fieldston was treated in a “denigrating and sexist manner.” Id.
Following her termination, Obergh filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and received a “Notice of Suit Rights” on March 9, 2021. See Compl. at 9. Brito filed a complaint with the CCHR, and her case was subsequently closed for “administrative cause” on December 28, 2020. Compl. at 13. Brito appealed the notice of closure by sending letters to the CCHR's Office of General Counsel on January 19, 2021. Id. at 11-13. Despite these letters, Brito alleges that even though she “thought she appealed,” she “can find no record of having done so, and the CCHR has no record of her having done so either.” Pl. Opp. at 3. She further alleges that she corresponded with two CCHR employees who “advised her that CCHR has no record of any appeal on [her] case.” Id. at 6.
B. Procedural History
Plaintiffs filed their Complaint on June 7, 2021, in which they brought suit against BMS, Fieldston, Soriano, Osmanovic, and Jorge Doe under Title VII of the Civil Rights Act (“Title VII”) and the New York City Human Rights Law (“NYCHRL”). Compl., Dkt. No. 3. Soriano, Osmanovic, and Doe were voluntarily terminated as Defendants on November 10, 2021. Dkt. No. 15.
The Complaint itself is signed and dated as of June 8, 2021. Compl. at 8. However, because it was filed on ECF the day before, the Court interprets the signed date as an error.
On November 19, 2021, Defendants moved to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim. Motion to Dismiss, Dkt. No. 16; Memorandum of Law (“Def. Mem.”) in Support of Motion to Dismiss, Dkt. No. 17; Declaration of Jerrod F. Goldberg in Support of Motion to Dismiss dated November 19, 2021 (“Goldberg Decl.”), Dkt. No. 18; Osmanovic Affidavit, Dkt. No. 19. Defendants filed proof of service on Plaintiffs on December 1, 2021, following two orders from the Court to do so. Dkt. Nos. 20, 22, 23. After prompting by the undersigned, Dkt. No. 24, Plaintiffs filed their opposition papers on February 10, 2022. Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss (“Pl.
Opp.”), Dkt. No. 27. Defendants filed a reply on February 24, 2022. Reply Memorandum of Law (“Def. Rep.”), Dkt. No. 29; Reply Declaration of Jerrold F. Goldberg dated February 28, 2022, Dkt. No. 28. The motion was referred to me for a report and recommendation on November 21, 2021. Dkt. No. 21.
II. DISCUSSION
A. Legal Standards
1. Subject Matter Jurisdiction under Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of an action when the district court lacks the statutory or constitutional power to adjudicate it.” Schwartz v. Hitrons Sols., Inc., 397 F.Supp.3d 357, 364 (S.D.N.Y. 2019) (cleaned up). “The party invoking the Court's jurisdiction bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F.Supp.3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When deciding a motion to dismiss under Rule 12(b)(1) at the pleading stage, “the Court ‘must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor.'” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F.Supp.3d at 274 (plaintiff invoking subject matter jurisdiction has burden to prove its existence by preponderance of evidence). When a defendant moves for dismissal under Rule 12(b)(1) in addition to other grounds, “the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Saint-Armour v. Richmond Org., Inc., 388 F.Supp.3d 277, 286 (S.D.N.Y. 2019) (cleaned up).
2. Failure to State a Claim Under Rule 12(b)(6)
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Menaker v. Hofstra Univ., 935 F.3d 20, 26 (2d Cir. 2019). To survive a Rule 12(b)(6) motion, the plaintiff must plead sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “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) (citing Twombly, 550 U.S. at 556). The plaintiff must allege facts sufficient to show “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. Furthermore, if the plaintiff has not “nudged [her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570. Although the Court “construe[s] the pleadings and affidavits in the light most favorable to plaintiffs . . . the Court will not draw argumentative inferences in the plaintiff's favor and need not accept as true a legal conclusion couched as a factual allegation.” Gilbert v. Indeed, Inc. 513 F.Supp.3d 374, 391 (S.D.N.Y. 2021) (cleaned up).
Finally, in deciding a Rule 12(b)(6) motion, a court may consider matters of which judicial notice may be taken under Rule 201 of the Federal Rules of Evidence. See, e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Kramer v. Time Warner, Inc., 937 F.2d 767, 773-75 (2d Cir. 1991). Such matters include “documents that are publicly available and whose accuracy cannot reasonably be questioned.” See Apotex, Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016). Specifically, courts “may take judicial notice of the records of state administrative procedures . . . without converting a motion to dismiss to one for summary judgment[,]” including charges filed with the New York State Division of Human Rights (“NYSDHR”). Saunders v. N.Y. Convention Center Operating Corp., No. 20-CV-5805 (GHW), 2021 WL 4340793, at *7 (S.D.N.Y. Sep. 23, 2021) (cleaned up) (collecting cases); see also Blige v. City University of New York, 15-CV-8873 (GBD) (KHP), 2017 WL 498580, at *9 (S.D.N.Y. Jan. 19, 2017) (“In construing the Amended Complaint liberally, the Court also has considered Plaintiff's allegations made in his NYSDHR Complaint, which is referenced in and attached to the Amended Complaint, as if they were set forth in the Amended Complaint itself”).
3. Title VII
Under Title VII, it is “unlawful for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). While a prima facie case of employment discrimination requires application of the well-known burden-shifting approach set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), surviving a motion to dismiss requires only that the plaintiff “give fair notice of the basis of [her] claims and the claims themselves must be facially plausible.” Shamilov v. Human Resources Administration, No. 10-CV-8745 (PKC), 2011 WL 6085550, at *4 (S.D.N.Y. Dec. 6, 2011); see also Colon v. City of New York et al., No. 19-CV-10435 (PGG) (SLC), 2021 WL 4427169, at *7 (S.D.N.Y. Sept. 26, 2021) (cleaned up) (“[A] plaintiff alleging employment discrimination or retaliation is not required to plead facts sufficient to establish a prima facie case . . . [i]nstead, the ordinary rules for assessing the sufficiency of a complaint under Federal Rule of Civil Procedure 8(a)'s notice pleading standard applies”).
On a motion to dismiss in an employment discrimination action, “a plaintiff must plausibly allege that . . . [her] race, color, religion, sex, or national origin was a motivating factor in the [adverse] employment decision.” Jeanty v. Rhino, No. 21-CV-8326 (LTS), 2021 WL 4865202, at *2 (S.D.N.Y. Oct. 18, 2021) (quoting Vega v. Hempstead Union Free School District, 801 F.3d 72, 86 (2d Cir. 2015)). A plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. (quoting Vega, 801 F.3d at 87). At the pleadings stage, a plaintiff need only allege that she “can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.” Lewis v. Roosevelt Island Operating Corp., 246 F.Supp.3d 979, 988 (S.D.N.Y. 2017) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).
4. NYCHRL
Discrimination claims under the NYCHRL must be interpreted independently and be more liberally construed to favor the plaintiff than in claims under Title VII. See, e.g., Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (courts analyze NYCHRL claims “separately and independently” from federal law claims); Harris v. NYU Langone Med. Ctr., No. 12-CV-454 (RA) (JLC), 2013 WL 3487032, at *25 (S.D.N.Y. July 9, 2013) (“The NYCHRL should be broadly construed ‘in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'”) (cleaned up), adopted as modified by 2013 WL 5425336 (Sept. 27, 2013). While federal and state law “may be used to aid in interpretation,” they should be considered “a floor below which the City's Human Rights law cannot fall[.]” N.Y.C. Local L. No. 85 of 2005 § 1.
“Nonetheless, the NYCHRL is not a general civility code, and the plaintiff must still show that the challenged conduct is caused by a discriminatory motive.” Stinnett v. Delta Air Lines, Inc. 803 Fed.Appx. 505, 508-09 (2d Cir. 2020) (cleaned up); see also Leroy v. Delta Air Lines, Inc., 36 F.4th 469, 474 (2d Cir. 2022) (NYCHRL scope is “not unlimited”). Even under the NYCHRL, a plaintiff must still plausibly allege that “unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor” for unequal treatment. Cardwell v. Davis Polk & Wardwell LLP, No. 19-CV-10256 (GHW), 2020 WL 6274826, at *19 (S.D.N.Y. Oct. 24, 2020) (cleaned up).
5. Standards Applicable to Pro Se Litigants
Because Plaintiffs are proceeding pro se, their submissions are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). In addition, as previously noted, the Court may also consider allegations that appear in a pro se plaintiff's opposition papers or other submissions to the Court. See e.g., Freud v. New York City Department of Education, 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss”) (citing Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)); Henning v. N.Y.C. Dep't of Corr., No. 14-CV-9798 (JPO), 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (“Although this allegation appears in his opposition papers, the Court -consistent with its duty to liberally construe pro se pleadings - will credit Plaintiffs assertion in evaluating the sufficiency of his complaint.”)
Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading and “dismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief[.]” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (cleaned up). The “duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.” Id. (cleaned up).
B. Analysis
Defendants argue that the Complaint should be dismissed in its entirety because (1) Brito's claims are barred by procedural defects due to her failure to meet conditions precedent to suit; (2) Both Brito and Obergh have failed to state a claim for discrimination; and (3) Fieldston is not liable as an employer under Title VII. Def. Mem. at 9-14. For the following reasons, the Court concludes that: (1) Brito's Title VII claim should be dismissed with prejudice for failure to exhaust administrative remedies; (2) supplemental jurisdiction should not be exercised over Brito's NYCHRL claim; and (3) Obergh's allegations fail to sufficiently state a claim for relief, but she should be permitted leave to replead to allege the requisite facts if they exist.
1. Federal Court Jurisdiction and Conditions Precedent to Suit a. Title VII
Defendants argue that Brito “has failed to obtain a right to sue letter” from the EEOC and “thus her Title VII claims are barred.” Def. Mem. at 9. Before commencing an action in federal court under Title VII, all plaintiffs, including those proceeding pro se, must exhaust all available administrative remedies. See, e.g., Bonilla v. City of New York, No. 18-CV-12142 (KPF), 2019 WL 6050757, at *7 (S.D.N.Y. Nov. 15, 2019). While Title VII exhaustion is not a jurisdictional prerequisite as Defendants appear to contend, see generally Def. Mem. at 9, Def. Rep. at 3-4, it is an affirmative defense that can be pleaded and proved by Defendants. See Hardaway v. Harford Public Works Dep't, 879 F.3d 486,489-19 (2d Cir. 2018) (in Second Circuit, “failure to exhaust administrative remedies is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement[;] therefore, “exhaustion requirement is subject to equitable defenses”) (cleaned up). However, exhaustion “can only be a proper basis for a motion to dismiss under Rule 12(b)(6) if failure to exhaust appears on the face of the complaint.” Frederic v. NFC Amenity Management, No. 17-CV-5769 (AJN), 2018 WL 4735715, at *2 (S.D.N.Y. Sept. 28, 2018).
Defendants have met their burden here, and Brito's failure to exhaust is apparent on the face of the Complaint and its attachments. In this case, Obergh received a “Notice of Suit Rights” from the EEOC on March 9, 2021, in which she was instructed of her right to sue in federal or state court within 90 days of receipt of the notice. See Compl. at 9. By the Court's calculation, the final date on which she was eligible to file suit was June 7, 2021 - the same day the Complaint was filed in this case. Thus, Obergh has demonstrated exhaustion of remedies for her Title VII claim, and her claim is not statutorily barred. Defendants do not contend otherwise.
See supra n. 3.
A review of the pleadings, however, reveals that Brito has not met the requirement to exhaust administrative remedies. First, Plaintiffs checked the box “No” in the Complaint to indicate that they did not receive a Notice of Right to Sue from the EEOC (presumably referring to Brito, because Obergh had received such a Notice). Compl. at 7. Second, despite that checkbox and as discussed above, the Complaint includes an EEOC notice for Obergh, which demonstrates that Brito was aware of its importance to the Complaint despite not submitting one for herself (nor pleading that she had done so). See id. at 9. Finally, Brito does not contest Defendants' exhaustion argument despite alleging additional new facts to address other elements of their argument. See, e.g., Pl. Opp. at 6-7; Def. Mem. at 9. Therefore, Defendants' motion to dismiss as to Brito's Title VII claim should be granted on the grounds that she failed to exhaust administrative remedies before bringing suit. See, e.g., Ray v. New York State Insurance Fund, No. 16-CV-2895 (NRB), 2018 WL 3475467, at *7 (S.D.N.Y. Jul. 18, 2018) (dismissing plaintiff's Title VII claims with prejudice when, in part, “failure to exhaust her administrative remedies alone warrants dismissal”).
b. NYCHRL
Defendants argue that Brito's NYCHRL claim should be dismissed (i) under the election of remedies doctrine, and (ii) because the Court should decline to exercise supplemental jurisdiction if her Title VII claim is dismissed. Def. Mem. at 5-7, 9. While the election of remedies doctrine does not provide a standalone basis for dismissal at this time, supplemental jurisdiction should not be exercised over Brito's NYCHRL claim because the Court is otherwise recommending dismissal of all the federal claims in this case.
i. Election of Remedies Doctrine
“Under the election of remedies doctrine, a complainant who files a complaint with . . . the [CCHR] cannot subsequently sue in court on the same claims.†Bonilla, 2019 WL 6050757, at *8. The election of remedies bar “‘is jurisdictional; a complaint that has previously been dismissed by the [CCHR] must be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).'” Id. at *9 (quoting Marecheau, 2014 WL 5026142, at *4). However, “where a complaint filed with the administrative agency is dismissed for administrative convenience rather than on the merits, a plaintiff is not barred from filing a lawsuit in federal court.” Williams v. City of New York, 916 F.Supp.2d 517, 522 (S.D.N.Y. 2013) (cleaned up).
Following her termination, Brito filed a complaint with the CCHR, and her case was closed for “administrative cause” on December 28, 2020. Compl. at 14, 15.Brito appears to have appealed the notice of closure by sending letters to the Office of General Counsel, New York City Commission on Human Rights, on January 19, 2021. Id. at 11-13. Defendants argue that Brito is barred from bringing her NYCHRL claim because “despite its initial dismissal, [Brito] has sought appeal of that decision.” Def. Mem. at 6. They contend that her NYCHRL claim is “premature” in this case “before a decision has been rendered” by the CCHR on her appeal. However, Defendants cite no case law for that carve out to the election of remedies exception.
No dispute exists as to whether the CCHR complaint raised the same claims as are at issue in this case.
Defendants note that Obergh and Brito each filed discrimination complaints with the CCHR, and that the CCHR closed both cases on December 28, 2020. Def. Mem. at 3. However, Obergh did not seek review of the CCHR's closure of her complaint. Osmanovic Aff. ¶ 9. Moreover, the Notice of Administrative Closure to which Defendants cite only names Brito as a complainant. Compl. at 15. Regardless, Defendants do not argue that Obergh is foreclosed from raising a NYCHRL claim under the election of remedies doctrine, and thus her NYCHRL claim is not barred on jurisdictional grounds. See Def. Mem. at 4.
Moreover, Brito alleges that while she “thought she appealed,” she “can find no record of having done so, and the CCHR has no record of her having done so either.” Pl. Opp. at 3. A review of the record indicates that the letters she filed as part of her Complaint do not reflect whether they were in fact mailed or otherwise received by the CCHR. See Compl. at 11-13. Further, Brito alleges that she corresponded with two CCHR employees who “advised her that CCHR has no record of any appeal on Ms. Brito's case” despite her letters. Id. at 6. Therefore, she argues, “it is clear that no final decision beyond the initial dismissal is forthcoming.” Id.
While Defendants accurately point out that Brito “provides no evidence” in support of her statements, Def. Rep. at 4, at the pleading stage, courts “must assume the factual allegations in the complaint to be true even if they are doubtful in fact, and a complaint may not be dismissed based on a judge's disbelief of a complaint's factual allegations.” Vega, 801 F.3d at 86 (cleaned up). Therefore, accepting Brito's factual allegations in the opposition papers as true, as is appropriate on a motion to dismiss in pro se cases, at this juncture she should not be denied the right to proceed with her NYCHRL claim based on the election of remedies doctrine.
ii. Supplemental Jurisdiction
Irrespective of election of remedies, Defendants argue that the Court should decline to exercise supplemental jurisdiction over Brito's NYCHRL claim. Def. Rep. at 4. If Brito's Title VII claim is dismissed for failure to exhaust, her only remaining claim will be the NYCHRL claim, over which the Court does not have original jurisdiction. Courts may “decline to exercise supplemental jurisdiction” when all claims over which they have original jurisdiction have been dismissed. 28 U.S.C. § 1367(c)(3). Plaintiffs argue that the Court should exercise supplemental jurisdiction over Brito's NYCHRL claim even if her Title VII claim is dismissed because the facts of her case stem from the same facts that give rise to Obergh's claims. See Pl. Opp. at 6-7. However, “where all federal-law claims are eliminated before trial, ‘the balance of factors to be considered under the pendent jurisdiction doctrine . . . point toward [a federal court] declining to exercise jurisdiction over the remaining state [and city] law claims.'” Fitzgerald v. We Company, No. 20-CV-5260 (AT), 2022 WL 952963, at *10 (S.D.N.Y. Mar. 30, 2022) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); citing Cohen v. Postal Holdings, LLC, 873 F.3d 394, 405 (2d Cir. 2017)). As discussed below, the Court recommends dismissal of all of Plaintiffs' federal claims, and therefore it likewise recommends that supplemental jurisdiction not be exercised and the NYCHRL claims be dismissed without prejudice to renewal in state court.
2. Failure to State a Claim for Relief
a. Title VII
Aside from the procedural defects with Brito's pleadings, Defendants argue that Plaintiffs have not sufficiently stated a claim for relief under Title VII. Def. Mem. at 8. To state a claim for gender-based discrimination, a plaintiff must allege: “(i) she is a member of a protected class, (ii) she was qualified for the position she held, (iii) she suffered an adverse employment action, and (iv) the adverse action took place under circumstances giving rise to an inference of discrimination.” Parra v. City of White Plains, 48 F.Supp.3d 542, 553 (S.D.N.Y. 2014) (citing Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012)). Defendants do not dispute that Plaintiffs satisfy the first three elements: (i) Plaintiffs are women and thus in a protected class on account of their gender; (ii) they were qualified for the positions they held; and (iii) they suffered the adverse employment action of termination. See, e.g., Stinnett v. Delta Air Lines, Inc. No. 18-CV-2704 (DLI) (LB), 2019 WL 1493224, at *7 (E.D.N.Y. Mar. 31, 2019) (as female, plaintiff was member of protected class; where employee already hired, there is an inference of qualification; termination constitutes an adverse employment action).
The fourth element is the issue in this case - whether Plaintiffs pleaded sufficient facts to allege that their termination “took place under circumstances giving rise to an inference of discrimination.” Parra, 48 F.Supp.3d at 553. This “inference of discrimination” can be demonstrated through, among other things: “the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Littlejohn, 795 F.3d at 312 (cleaned up). One recognized method of raising an inference of discrimination is by “[a] showing of disparate treatment-that is, a showing that the employer treated plaintiff ‘less favorably than a similarly situated employee outside [her] protected group.'” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). “A plaintiff relying on disparate treatment evidence ‘must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.'” Id. (quoting Graham, 230 F.3d at 39); see also Doe v. New York University, No. 20-CV-1343 (GHW), 2021 WL 1226384, at *21 (S.D.N.Y. Mar. 31, 2021) (“To assert a Title VII claim, a plaintiff must allege that she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.”) (cleaned up). “An employee is similarly situated to co-employees if they were (1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct.” Blaise v. Verizon New York Inc., 804 Fed.Appx. 68, 70 (2d Cir. 2020) (quoting Ruiz v. County of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010)).
Construing the pleadings liberally, the Court also interprets the additional poor treatment Plaintiffs allege - that they were given more work than their male coworkers, newly forced to work on Saturdays and Sundays when their male colleagues were not, and not provided with assistance and support from Fieldston and BMS that was given to their male colleagues, Pl. Opp. at 4 - as additional adverse actions as well as “relevant background evidence” that shed light on Defendants' motivations, bolster the claim for disparate treatment, and create a “mosaic” of information giving rise to an inference of discrimination. Vega, 801 F.3d at 87. However, unlike in Vega, Plaintiffs have not provided adequate details in their pleadings for their allegations to plausibly state a claim for relief. For example, they do not explain how much more time was spent working as compared to their male colleagues, whether that extra time was “excessive,” or whether it “exceed[ed]” standard policy as opposed to amounting to a mere “alteration of job responsibilities.” Id. at 88. Without more context and information, the Court is unable to consider these additional allegations sufficient to plead a cognizable claim for gender-based discrimination.
Here, Plaintiffs have not sufficiently pleaded an inference of discrimination. As a threshold matter, they allege that the “other five cleaners” with whom they shoveled snow seven months prior to their termination were employed “under the same terms and with the same job title and responsibilities as plaintiffs.” Pl. Opp. at 4. Even reading the pleadings and opposition papers liberally and in the light most favorable to Plaintiffs, however, the record does not indicate if these cleaners are the same coworkers later identified as the “male colleagues” Plaintiffs alleged to have received suspensions for misconduct but who had not been subsequently terminated. Pl. Opp. at 5. Plaintiffs do not otherwise specify if any of those latter “male colleagues” are similarly employed to Plaintiffs themselves. The generalized “male colleagues” to whom Plaintiffs refer, without names or other descriptions, is insufficient to identify a comparator. See Henry v. NYC Health & Hosp. Corp., 18 F.Supp.3d 396, 409 (S.D.N.Y. 2014) (allegation that “no male employee was sent home from work” for same reason as Plaintiff failed to allege purported comparator). Because the record is not clear as to which male colleagues Plaintiffs refer in their comparison, they have not sufficiently pleaded that both they and their “male colleagues [who] had received suspensions for many different types of misconduct including disrespect to superiors, lasting multiple weeks . . . [but were not] removed from Fieldston or terminated” were subject to the same performance evaluation and discipline standards. Pl. Opp. at 5.
Second, even if Plaintiffs had demonstrated that the purported male colleague comparators were subject to the same performance evaluation and discipline standards as they were, they still have not shown that the putative comparators “engaged in comparable conduct.” While the circumstances between a plaintiff and putative comparators “need not be identical[,]” they “must bear a reasonably close resemblance.” Doe v. New York University, 2021 WL 1226384, at *21 (cleaned up). “In the context of employee discipline, courts consider whether the comparators' offenses were of ‘comparable seriousness,' which ‘requires-in addition to an examination of the acts-an examination of the context and surrounding circumstances in which those acts are evaluated.'” Id. (quoting Graham, 230 F.3d at 40); see also Roenick v. Flood, No. 20-CV-7213 (JPC), 2021 WL 2355108, at *5 (S.D.N.Y. Jun. 9, 2021) (plaintiff must show similarly situated employees who went undisciplined engaged in comparable conduct).
Plaintiffs have not provided enough facts in their pleadings for the Court to “examine” the relevant acts or “the context and surrounding circumstances” of those acts. Doe, 2021 WL 1226384, at *21. Despite Plaintiffs' allegations that male coworkers were treated differently, their “pleadings give no indication that [they were] sufficiently similarly situated to these other [coworkers] plausibly to suggest a discriminatory motive” in part because they “fail[ed] to allege facts suggesting that the . . . putative comparators engaged in conduct similar to [theirs].” Stinnett, 803 Fed.Appx. at 509. Plaintiffs contend only that their male colleagues “had received suspensions for many different types of misconduct including disrespect to superiors.” Pl. Opp. at 5. The phrase “misconduct” is vague, and “disrespect to superiors” is the only example of such misconduct provided. A plain reading of “disrespect to superiors” is not comparable to the conduct about which Plaintiffs were allegedly terminated: “insubordination.” Pl. Opp at 3. Without more to analyze, the Court is “left merely to speculate” why the misconduct of which Plaintiffs' male colleagues were accused did not result in termination, when theirs did. Makhsudova v. City of New York, No. 20-CV-10728 (KPF), 2022 WL 1571152, at *7 (S.D.N.Y. May 18, 2022) (plaintiff failed to plead adverse employment action under circumstances giving rise to an inference of discriminatory intent when, among other things, absent from complaint was any allegation as to reason comparator was placed on probation).
In sum, Plaintiffs' allegations are not detailed enough to move their Title VII claims “from conceivable to plausible,” and should be dismissed. Twombly, 550 U.S. at 555.
b. NYCHRL
Claims brought under the NYCHRL “are analyzed using the same framework as Title VII . . . but must be viewed independently from and more liberally” than Title VII claims. Deveaux v. Skechers USA, Inc., No. 19-CV-9734 (DLC), 2020 WL 1812741, at *5 (S.D.N.Y. Apr. 9, 2020). However, as described above, courts have discretion to “decline to exercise supplemental jurisdiction” when all claims over which they have original jurisdiction have been dismissed. 28 U.S.C. § 1367(c)(3). It is well-settled that “[w]here all federal-law claims are eliminated before trial, ‘the balance of factors to be considered under the pendent jurisdiction doctrine . . . point toward [a federal court] declining to exercise jurisdiction over the remaining state [and city] law claims.'” Fitzgerald, 2022 WL 952963, at *10 (cleaned up). Because the Court recommends dismissal of all federal law claims in this case, it likewise recommends that supplemental jurisdiction not be exercised over the NYCHRL claims, and those claims be dismissed without prejudice to renewal in state court.
Moreover, even if the Court were to exercise supplemental jurisdiction over the NYCHRL claims, Plaintiffs “offer[] no independent argument for why this cause of action should survive” if the Title VII claims do not, and the NYCHRL claims would not survive on their own. See Roenick, 2021 WL 2355108, at *7.
c. Fieldston as a non-employer
Because the Court recommends dismissal of all of Plaintiffs' claims, it need not reach the issue as to whether Fieldston is an “employer” for purposes of Title VII and thus liable for those claims. However, for completeness, the Court will briefly address Defendants' argument that Fieldston is not liable under Title VII because it is not Plaintiffs' employer. Def. Mem. at 11; Def. Rep. at 9-10.
“[T]he existence of an employer-employee relationship is a primary element of Title VII claims.” Gulino v. New York State Educ. Dept., 460 F.3d 361, 370 (2d Cir. 2006). Courts “construe[] the definition of ‘employer' broadly under Title VII . . . to encompass persons who . . . control some aspect of an employee's compensation or terms, conditions, or privileges of employment.” Kemp v. NYC Dep't of Health and Mental Hygiene, No. 21-CV-0579 (LTS), 2022 WL 1292288, at *4 (S.D.N.Y. Apr. 29, 2022) (cleaned up). “Whether two related entities are sufficiently integrated to be treated as a single employer [in order to be liable in an employment action] is generally a question of fact not suitable to resolution on a motion to dismiss.” Brown v. Daikon America Inc., 756 F.3d 219, 226 (2d Cir. 2014).
In this case, Plaintiffs allege that they were “stationed” at Fieldston, but the “terms and conditions of [their] employment were governed by a collective bargaining agreement between BMS and [their] Union.” Pl. Opp. at 3. They further contend that “Fieldston didn't directly hire, pay, or assign specific duties to [P]laintiffs, [but] Fieldston did direct the duties and hours of [P]laintiffs' BMS supervisors. Fieldston also precipitated Plaintiffs' termination in part, by ordering their removal from the school.” Pl. Opp. at 8. Thus, the sole allegations on which Plaintiffs' claim rests is that Fieldston “direct[ed] the duties and hours of [P]laintiffs' BMS supervisors,” not Plaintiffs' themselves, and that Fieldston “precipitated [P]laintiffs' termination in part, by ordering their removal from the school.” Pl. Opp. at 8. These activities do not adequately plead Fieldston's “control” over BMS, or “an amount of participation [between Fieldston and BMS] . . . that is sufficient and necessary to the total employment process,” such as “final decisions regarding employment matters” related to Plaintiffs. Brown, 756 F.3d at 227. Other than asking Plaintiffs to leave the premises on one particular day, the pleadings do not allege any facts to suggest Fieldston had “control[] [of] the terms, conditions, and privileges of [Plaintiffs'] employment or compensation ....” Kemp, 2022 WL 1292288, at *5.
Thus, Plaintiffs have not adequately pleaded that Fieldston was their employer. Accordingly, even if the Title VII claims are not dismissed as to BMS, they should still be dismissed as to Fieldston.
3. Leave to Amend
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, a district court should “freely give leave [to amend] when justice so requires,” but “has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
Plaintiffs request leave to amend their Complaint to address any deficiencies identified by the Court. Pl. Opp. at 2. Defendants object on the grounds that any amendment would “effectively be the second time” Plaintiffs are able to add new allegations to their Complaint. Def. Rep. at 3. “Where a cause of action is dismissed due to deficient pleading, leave to amend should generally be granted.” Watkins v. City of New York Kings Cty., No. 14-CV-1512 (RRM) (LB), 2014 WL 4075769, at *4 (E.D.N.Y. Aug. 15, 2014) (collecting cases). “This is especially true where, as here, a litigant proceeds pro se.” Id. (citing, among other cases, Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be read liberally. Certainly the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” (citations omitted))).
Such is the case here as to Obergh's Title VII claim. Notwithstanding Defendants' contentions, the pending motion is the first adjudication of the claims on the merits. An amended complaint would not prejudice Defendants given the pretrial posture of the case, and Defendants do not argue otherwise. Thus, the Court recommends that Obergh be given an opportunity to allege the requisite facts, if they exist, to make her Title VII claims cognizable.
However, the time for Brito to exhaust her administrative remedies under Title VII has passed, because it is now more than 300 days since the alleged discrimination in September 2017. See 42 U.S.C. § 2000e-5(e)(1). Therefore, it is no longer possible for her to meet the condition precedent and granting leave for her to amend her Title VII claim would be futile. See, e.g., Felix v. Simon, 303 Fed.Appx. 21, 22 (2d Cir. 2008) (affirming dismissal of claim without leave to amend when plaintiff no longer has ability to exhaust administrative remedies).
C. Summary
While the Court's analysis may be somewhat confusing to Plaintiffs as pro se litigants, the bottom line is the Court is recommending that Obergh may amend her complaint as to her Title VII and NYCHRL claims, but because Brito is barred from amending her Title VII claims, she would have to pursue any remaining claims she has in state court. This may result in Obergh litigating in federal court the same claims that Brito is litigating in state court, but that is the necessary outcome in the Court's view unless Obergh does not amend her Complaint in this case and she and Brito choose to pursue their claims together in state court.
III. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss should be granted, but Obergh should be given leave to file an amended complaint.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
If Plaintiffs do not have access to cases cited herein that are reported on LexisNexis or Westlaw, they should request copies from counsel for Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local
Rules of the United States District Courts for the Southern and Eastern Districts of New York.