Opinion
05 Civ. 2750 (DC).
January 31, 2006
GINA WILLIAMS, Springfield Gardens, NY, Pro Se Plaintiff.
Steven J. Rappaport, Esq., Donna M. Murphy, Esq., RICARDO ELIAS MORALES, Esq., General Counsel for Defendant New York City Housing Authority, New York, NY.
Barry J. Peek, Esq., Jordan Rossen, Esq., MEYER, SUOZZI, ENGLISH KLEIN, P.C. Attorneys for Defendant Local 237, I.B.T., New York, NY.
MEMORANDUM DECISION
Pro se plaintiff Gina Williams is an employee of defendant New York City Housing Authority ("NYCHA") and a member of defendant Local 237, I.B.T. ("Local 237"). In this case, Williams contends that NYCHA and Local 237 violated her rights by discriminating against her because of her sex, denying her due process and equal protection of the laws, and retaliating against her for filing grievances against defendants. Specifically, she brings this action pursuant to 42 U.S.C. §§ 1981 and 1983 and New York City Administrative Code § 8-107(a)(1), (6), and (7). This is the latest in a series of employment cases she has filed against NYCHA, Local 237, and others.
NYCHA moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief may be granted. Local 237 moves pursuant to Rule 12(c) for judgment on the pleadings dismissing the complaint. For the reasons that follow, both motions are granted and the complaint is dismissed.
BACKGROUND
The facts are drawn primarily from plaintiff's complaint and supporting materials attached thereto. They are assumed to be true for purposes of these motions. See, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) ("we read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest") (internal quotations and citation omitted). In addition, the Court takes judicial notice of judicial findings made in other proceedings, for "it is proper to consider public documents on a motion to dismiss to determine whether claims are barred by prior litigation." Karamoko v. NYCHA, 170 F. Supp. 2d 372, 375 n. 1 (S.D.N.Y. 2001).
Williams has been employed at NYCHA since May 1992, where she is represented by her union, Local 237. She was employed as a Heating Plant Technician before being promoted to a Civil Service Assistant Superintendent on June 7, 2004. (Compl. ¶ 6). Williams contends that defendants have engaged in adverse employment actions against her dating back to mid-2003.
Specifically, on May 28, 2003, plaintiff's manager at NYCHA denied her a leave of absence, docked her pay, and deprived her of annual leave and pay. Meanwhile, a male counterpart at work took a leave of absence, when no one could cover for him, but was neither denied leave nor docked payment. (Id. ¶ 8).
In June 2003, a superintendent, Michael Lopez, who previously had been named by plaintiff in a suit against NYCHA, and an assistant superintendent "counseled" plaintiff about her uniform without her union representative present. The superintendent denied plaintiff's request to have her union represent her during the exchange. (Id. ¶ 9). Despite plaintiff's prior "clean record" with NYCHA, on July 14, 2003, she received a "counseling memo" from Lopez about an incident that took place on June 23, 2003. The memo was the first time plaintiff had heard of the incident. After bringing the issue to the attention of Local 237, plaintiff was told that the memo was "out of procedure" and would be removed from her record, but there was no follow-up. (Id. ¶ 10). In contrast, a male co-worker was "verbally counseled" in the same week, but unlike plaintiff, he was immediately notified instead of receiving a written counseling memo. (Id. ¶ 11).
On September 11, 2003, plaintiff received another counseling memo for wearing her uniform home, even though no adequate changing facility was available for women in her position, and she would have had to change in the Heating Plant Technician Office in the presence of male co-workers and other staff. (Id. ¶ 12, Ex. A). When she received that memo, a Local 237 shop steward served as a witness for NYCHA in violation of NYCHA and union policy. Moreover, Local 237 "refused to take action" on the inadequate changing facility. (Id. ¶ 13). That same month, plaintiff filed an Occupational Safety and Health Agency complaint regarding the inadequate changing facility. (Id. ¶ 14). This complaint was sustained by the Public Employee Safety and Health Bureau in January 2004. (Id. ¶ 14, Ex. B).
In October 2003, Lopez breached standard procedures and the union contract when he authorized a janitorial "caretaker" to supervise Williams. (Id. ¶¶ 16-17). Plaintiff complained to Local 237, but no action was taken against NYCHA, despite Local 237's admission that there were improprieties with the supervision. (Id. ¶ 18, Ex. C).
That same month, Lopez told plaintiff she could not work on October 2 and October 3, 2003, because those days would be the start of plaintiff's regular days off. Plaintiff lost annual leave and overtime because she could not complete a five-day work week. (Id. ¶ 15).
On Thursday, February 19, 2004, on one of plaintiff's regular days off, the superintendent and two assistant superintendents threw a staff appreciation party. Plaintiff filed a complaint with NYCHA's Department of Equal Opportunity that she was being retaliated against by being excluded from the staff parties, but this claim was denied. (Id. ¶¶ 19-21, Ex. D E). In March 2004, plaintiff was "excluded" from another staff party for an assistant superintendent. (Id. ¶ 22).
In March 2004, plaintiff requested compensation for working as a heating plant technician "on shift." NYCHA refused to honor the request, and plaintiff claims she is missing "Two Years of compensated days from April 2003 and April 2004." (Id. ¶¶ 23-24). Plaintiff also contacted Local 237 for assistance, but Local 237 refused to file a retaliation complaint against NYCHA. (Id. ¶ 25).
B. Prior Proceedings
Plaintiff has filed numerous prior administrative charges and complaints against NYCHA and has also filed charges against Local 237. For example:
In 1999, Williams filed a Title VII case in this Court against NYCHA, alleging gender discrimination, sexual harassment, and hostile work environment. This claim was dismissed in 2001 on the grounds that plaintiff failed to file a timely charge of discrimination with the Equal Employment Opportunity Commission.See Williams v. NYCHA, No. 99 Civ. 10244 (RMB) (S.D.N.Y. Jan. 2, 2001).
In 2001, Williams filed an employment case in the Supreme Court, New York County, against NYCHA and others, claiming hostile work environment and retaliation. See Williams v. NYCHA, No. 115453/01. That case apparently is still pending.See Williams v. NYCHA, 802 N.Y.S.2d 55 (1st Dep't 2005).
Williams filed at least two additional proceedings against NYCHA in Supreme Court, New York County, in 2001 and 2005. See Williams v. NYCHA, Nos. 116855/01 402823/05.
On October 2, 2003, Williams filed suit in this Court against NYCHA and Local 237 (the "October 2003 action"), alleging,inter alia, discrimination and retaliation. See Williams v. NYCHA, No. 03 Civ. 7764 (WHP). By order dated April 15, 2004, Judge Pauley dismissed the complaint for failure to: (1) exhaust administrative limitations, (2) comply with Title VII's statute of limitations, (3) sufficiently allege "adverse employment action," and (4) sufficiently allege the requisite causal connection. The matter is apparently pending on appeal in the Second Circuit. See Williams v. NYCHA, No. 04-2531.
The present complaint was filed on February 22, 2005, in the Supreme Court, New York County, and was removed to this Court on March 10, 2005. Broadly construed, the complaint alleges that both defendants violated the Fourteenth Amendment and the New York City Administrative Code by discriminating against plaintiff on the basis of her sex, denying her due process, and retaliating against her because she petitioned the government for the redress of her grievances. (Id. ¶¶ 26-27, 29). She claims that NYCHA denied her the opportunity granted other employees to file discrimination complaints, failed to properly train and supervise employees, and did not process her discrimination complaint or discipline employees. (Id. ¶¶ 29-33). Additionally, plaintiff alleges that Local 237 conspired with NYCHA to retaliate against her and disregarded her requests for hearings to redress her grievances. (Id. ¶¶ 35-37).
These motions followed.
DISCUSSION
Plaintiff raises a multitude of claims that defendants argue should be dismissed. First, I discuss the standards applicable to motions to dismiss and motions for judgment on the pleadings. Second, I discuss the doctrine of res judicata and conclude that plaintiff's claims based on events occurring prior to October 2, 2003 must be dismissed. Third, I discuss the remaining claims,i.e., the claims based on events occurring on or after October 2, 2003, and conclude that they must be dismissed as well.
A. Motions to Dismiss and for Judgment on the Pleadings
In reviewing a motion to dismiss, I must accept the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). A complaint may not be dismissed under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The pleadings of a pro se plaintiff must be construed liberally, especially in a civil rights complaint.Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).
The test for dismissal is not whether the plaintiff is likely to prevail, but whether she is entitled to offer evidence to support her claims. Chance, 143 F.3d at 701. "In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference."Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).
A motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is analyzed under the same standard applicable to a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Accordingly, judgment on the pleadings is appropriate only if, drawing all reasonable inferences in favor of the non-moving party, it is apparent from the pleadings that no material issues of fact need to be resolved and that the moving party is entitled to judgment as a matter of law. See id.; Carballo ex rel. Cortes v. Apfel, 34 F. Supp. 2d 208, 214 (S.D.N.Y. 1999). In deciding a motion for judgment on the pleadings, a court may consider the pleadings and attached exhibits, statements or documents incorporated by reference, and matters subject to judicial notice. Prentice v. Apfel, 11 F. Supp. 2d 420, 424 (S.D.N.Y. 1998) (citing Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)).
B. Res Judicata 1. Applicable Legal Principles
The doctrine of res judicata, or claim preclusion, establishes that "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94 (1980); see also Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 368 (2d Cir. 1997). For the doctrine of res judicata to apply, there must be "both an identity of parties and an identity of issues between the prior and subsequent suits." Expert Elec. Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir. 1977).
A party may not escape the effects of res judicata by "`splitting' his claim into various suits, based on different legal theories," Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 110 (2d Cir. 2000), for "it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action [for res judicata purposes], not the legal theory upon which a litigant relies," Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991); see also Karamoko v. NYCHA, 170 F. Supp. 2d 372 (S.D.N.Y. 2001). Under this transactional approach, res judicata bars a second suit that involves the same "nucleus of operative fact" as the first suit. Waldman, 207 F.3d at 108. To ascertain whether a suit arises out of the same factual grouping as an earlier litigated claim, the Court "`look[s] to whether the underlying facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations.'" Id. at 108 (quoting Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997)) (internal quotations and citation omitted); see also Peters v. Timespan Commc'ns, Inc., No. 97 Civ. 8750 (DC), 2000 WL 340900, at *4 (S.D.N.Y. Mar. 30, 2000). "[C]ases consistently hold that the facts essential to the barred second suit need not be the same as the facts that were necessary to the first suit." Waldman, 207 F.3d at 110. It is enough that "the facts essential to the second were [already] present in the first." Computer Assocs., 126 F.3d at 369.
To prove that a claim is precluded by res judicata, a defendant must show that (1) the prior action concluded with a final adjudication on the merits; (2) the prior claims and the current claims involve the same parties or those in privity with them; and (3) the claims asserted in the present action were, or could have been, asserted in the prior action because they arise from a common nucleus of operative fact. See Monahan v. N.Y. City Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000). The party seeking to invoke res judicata bears the burden of proving that the second action is barred. See Computer Assocs., 126 F.3d at 369.
2. Application
Plaintiff's claims based on events occurring prior to the filing of the October 2003 action are barred by res judicata.
First, the October 2003 action resulted in a final adjudication on the merits. The district judge ruled that plaintiff's Title VII claims were barred because she failed to exhaust, certain of her Title VII claims were untimely, and her retaliation claims failed to state a claim because she did not suffer adverse employment action and was unable to show the requisite causal connection. Hence, this was a decision on the merits. Although the appeal is under consideration by the Second Circuit, the pendency of an appeal does not suspend the res judicata effect of an otherwise final judgment. See Petrella v. Siegel, 843 F.2d 87, 90 (2d Cir. 1988).
Second, the litigants in both the October 2003 action and the instant action are identical.
Third, many of the claims in the current complaint arise from the same nucleus of operative facts as the claims in the October 2003 action. Many of the allegations in the instant complaint would have formed a convenient trial unit with the prior action. As in the October 2003 action, plaintiff alleges acts of retaliation and discrimination motivated by the ongoing litigation and gender discrimination. Many of the grievances that form the basis of her current complaint — denial of leave, docked pay, the counseling memos, and the inadequate changing facility — took place prior to the commencement of the October 2003 action and were, or could have been, asserted in that case.
Consequently, plaintiff's claims based on events occurring prior to October 2, 2003 are barred by res judicata.
C. The Remaining Claims
Plaintiff's remaining claims, arising out of incidents after the October 2003 action was filed, are not barred by res judicata. But they are defective on the merits. I discuss the remaining claims under § 1981, § 1983, and the Administrative Code in turn.
To survive a motion to dismiss a claim under § 1981, a plaintiff "must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994). Allegations of gender discrimination or gender-based retaliation are not actionable under the statute. See Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998). Plaintiff's complaint does not allege racial discrimination, nor does she assert any facts that demonstrate discrimination on the basis of race. Accordingly, her § 1981 claims are dismissed.
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show that (1) defendants acted under color of state law, and (2) defendants' actions deprived plaintiff of her constitutional rights or privileges. Knight v. City of N.Y., 303 F. Supp. 2d 485, 501 (S.D.N.Y. 2000) (citing Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir. 1994)). The Court "will dismiss a complaint that `consist[s] of nothing more than naked assertions, and set[s] forth no facts upon which a court could find a [constitutional] violation.'" Mitchell v. Keane, 974 F. Supp. 332, 338 (S.D.N.Y. 1997) (quoting Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)); see also Alfaro Motors, Inc v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) ("[A] complaint must contain specific allegations of fact which indicate a deprivation of constitutional rights; . . . broad, simple, and conclusory statements are insufficient to state a claim under § 1983.").
a. Color of Law
NYCHA acted under color of state law. Local 237, however, is not a state actor and Williams does not allege otherwise. See Hussein v. Waldorf Astoria Hotel, No. 99 Civ. 1652 (DC), 2000 WL 16928, at *3 (S.D.N.Y. Jan. 11, 2000) (recognizing that unions are not governmental actors). Nonetheless, a § 1983 claim may be asserted against Local 237 if Williams alleges that Local 237 "conspired" with NYCHA to retaliate against her. While Williams makes a general statement regarding a conspiracy, she fails to allege facts to support the existence of an agreement between NYCHA and Local 237 to "act in concert to inflict unconstitutional injury" upon her, or allege an "overt act" in furtherance of that injury. Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). "`[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.'" Id. at 325 (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993)).
Because Williams's claims against the union lack sufficient specificity, Local 237's motion to dismiss the § 1983 claims against it are granted on this basis.
b. Deprivation of Rights, Privileges, and Immunities
As to the second prong of the test, Williams alleges two types of deprivations: due process and equal protection.
i. Due Process
To sustain a § 1983 claim based on an alleged violation of due process, a plaintiff must show that (1) she possesses a liberty or property interest protected by the Constitution or federal statutes and (2) she was deprived of that liberty or property interest without due process. Ciambriello, 292 F.3d at 313 (citing Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995)). Here, no liberty interest is at stake, and thus the threshold issue is whether plaintiff possessed a property interest.
Property interests are not created by the Constitution, but "`stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.'" Id. at 313 (quotingBoard of Regents v. Roth, 408 U.S. 564, 577 (1972)). To state a claim under § 1983, "plaintiff must have a property interest in a benefit that is `more than an abstract need or desire for it. [She] must instead have a legitimate claim of entitlement to it' under state or federal law." Finley v. Giacobbe, 79 F.3d 1286, 1296 (2d Cir. 1996) (quoting Roth, 408 U.S. at 577)). For example, a property interest exists in a government job where one has a reasonable expectation of continued employment. See Roth, 408 U.S. at 576-78.
Here, Williams bases her claims of due process on four predicate acts: improper supervision, exclusion from staff parties, deprivation of leave and overtime, and withholding of "compensated days." None of these alleged deprivations involves what could reasonably be characterized as a property interest.
1) Improper Supervision
Williams alleges that on one occasion she was given a work assignment by an unauthorized supervisor and that this action did not follow office procedures. Her complaint does not specify how long the supervision lasted, but it could not have been an extended period of time. The complaint alleges the event took place in October 2003, and she annexed to her complaint a letter from NYCHA, dated November 13, 2003, indicating that the matter was investigated and any improprieties were corrected. Receipt of assignments from an unauthorized supervisor for a period of a few weeks at most does not implicate a property interest protected by law.
2) Exclusion From Staff Parties
Williams claims that she was "intentionally" excluded from two staff parties. On at least one of these occasions, the party took place on a Thursday, one of Williams's regular days off. NYCHA's Department of Equal Opportunity refused to conduct an internal investigation. Copies of letters in which plaintiff complained about being left out of parties and feeling retaliated against were attached to her complaint, along with NYCHA's responses showing it considered her grievances and took steps to avoid a recurrence. In any event, plaintiff had no property interest in being invited to parties for co-workers. The failure of her supervisors to invite her to these two parties does not trigger the deprivation of a protected property interest.
3) Deprivation of Leave and Overtime
Williams also claims that she "lost annual leave and overtime" because she was forced by Lopez to take off October 2 and 3, 2003, thus preventing her from completing a five-day work week. Lopez told her not to work those days because instead of a regular Monday through Friday schedule, she was being moved to a Saturday through Wednesday work week. A government employee may very well have a property interest in "annual leave and overtime," but Williams fails to provide any detail here to show the deprivation of a property interest. The amount of annual leave and overtime that she could have lost because she did not work two days must be de minimis, and in the absence of any allegations that would support a finding of the deprivation of a property interest, this claim fails as well.
4) Loss of Compensated Days
Plaintiff alleges that in May 2004 she requested "compensated days" for working as a heating plant technician "on shift." NYCHA refused. As a consequence, plaintiff alleges, she "is missing Two Years of compensated days from April 2003 and April 2004." (Compl. ¶ 23).
Plaintiff does not explain what "compensated days" are, and the complaint alleges no facts as to what compensation she was denied or how much money (if any) is at stake. The complaint does not even allege that Williams had a right to "compensated days," nor does it explain the basis for the assertion of any such right. To the extent that, by "compensated days," she means what is sometimes referred to as "comp time" — time off to compensate for unpaid overtime work — she has not alleged the basis for any claim or entitlement to comp time or the amount of comp time she claims she was denied. Moreover, the allegation in the complaint in this respect makes no sense on its face, as plaintiff claims that she "is missing Two Years of compensated days from April 2003 and April 2004" (emphasis added), as opposed to some specified number of hours or days. In addition, in her two affidavits submitted in connection with these motions, plaintiff makes no effort to explain her claim for "compensated days." Under these circumstances, I can only conclude that plaintiff has failed to allege a property interest protected by due process, and this claim is therefore dismissed.
ii. Deprivation of Equal Protection
"To state a claim for an equal protection violation, [plaintiff] must allege that a government actor intentionally discriminated against [her] on the basis of race, national origin[,] or gender." Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). Williams alleges that she was denied equal protection of the law because of her gender and because she was retaliated against for filing grievances. Because the equal protection claims mirror plaintiff's discrimination and retaliation claims, I leave the discussion of the equal protection claims for the discussion of the discrimination and retaliation claims below. See Knight, 303 F. Supp. 2d at 501 ("Claims of retaliation are not cognizable under the Equal Protection Clause because Title VII provides an exclusive remedy for such claims.") (internal citation omitted).
Williams asserts one equal protection claim that is distinct from her other discrimination and retaliation claims. She alleges that NYCHA deprived her of the same opportunity to file discrimination complaints as other employees. (Compl. ¶ 30). This claim must be dismissed as a matter of law. First, as the complaint and its supporting documents make clear, Williams has filed numerous grievances and complaints against NYCHA, and NYCHA has responded to them. Second, the complaint does not allege, at least in this respect, a purportedly improper basis for this alleged deprivation of equal protection. It only alleges that plaintiff has not been given the same opportunity as other "municipal defendant employees that are similarly situated" to file complaints with NYCHA's Department of Equal Opportunity. (Id.). Hence, no equal protection claim in this respect has been stated.
3. The New York City Administrative Code
Finally, plaintiff alleges that NYCHA violated the New York City Administrative Code by discriminating against her on the basis of gender and retaliating against her for filing a prior lawsuit. She contends that Local 237 violated the Code by aiding and abetting NYCHA's discriminatory and retaliatory acts.
Claims of discrimination and retaliation under the New York State and New York City Human Rights Laws are evaluated using the same analytic framework as Title VII actions. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000). Both discrimination and retaliation claims require a plaintiff to prove an adverse employment action. See Farias v. Instruct'l Sys., 259 F.3d 91, 98 (2d Cir. 2001); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). A plaintiff suffers adverse employment action if she "endures a materially adverse change in the terms and conditions of employment."Galabya v. N.Y. City Bd. of Ed., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotations and citation omitted). Adverse employment action results "in a change in responsibilities so significant as to constitute a setback to the plaintiff's career," id. at 641, and "must be more disruptive than a mere inconvenience or an alteration of job responsibilities," id. at 640.
Here, plaintiff's claims of retaliation and discrimination fail because she has not alleged a material adverse employment action. The four post-October 2, 2003 actions alleged in the complaint — the temporary supervision of plaintiff by a janitorial caretaker, her exclusion from two staff parties, the loss of annual leave and overtime for not working two days, and the loss of undefined compensated days — simply do not amount to materially adberse changes in the conditions of her employment. As a matter of law, they fall far short of the threshold necessary to trigger a violation of the employment laws or the equal protection clause. Moreover, plaintiff's promotion in 2004 undercuts any notion that she has experienced a "change in responsibilities so significant as to constitute a setback to [her] career." Id. at 641.
In addition, as no discrimination or retaliation claim is properly alleged NYCHA, the aiding and abetting claim against Local 237 fails as well.
CONCLUSION
For the foregoing reasons, both NYCHA's motion to dismiss and Local 237's motion for judgment on the pleadings are granted. The complaint is dismissed, with prejudice. The Clerk of the Court shall enter judgment accordingly.
SO ORDERED.