Gittens v. Winthrop Hospitalist Associates, P.C.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

DEON GITTENS,

Plaintiff,

v.

MEMORANDUM AND ORDER

WINTHROP HOSPITALIST ASSOCIATES, P.C.,

NYU WINTHROP HOSPITAL, NYU LANGONE 19-CV-5070 (LDH) (LB)

HEALTH SYSTEM, and DORIS MCKEON, In

Her Individual and Official Capacities,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Deon Gittens (“Plaintiff”) brings the instant action against Winthrop Hospitalist

Associates, P.C., NYU Winthrop Hospital, NYU Langone Health System (collectively

“Winthrop”), and Doris McKeon (“Mckeon,” and together with Winthrop, “Defendants”)

alleging claims for discrimination, hostile work environment, and retaliation in violation of 42

U.S.C. § 1981 and New York State Human Rights Law (“NYSHRL”). Defendants move

pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the second amended complaint in

its entirety.

BACKGROUND1

Plaintiff is African American. (See Second Am. Compl. (“Compl.”) ¶¶ 23–24, ECF No.

18.) On November 7, 2005, Plaintiff was hired by Winthrop as a transporter, and thereafter,

reported to Doris McKeon. (Id. ¶¶ 9, 18.) From Fall 2007, through some time in 2009, Plaintiff

1 The following facts are taken from the second amended complaint and are assumed to be true for the purposes of

this memorandum and order.

attended Winthrop’s School of Radiography where he trained to become a radiologic

technologist. (Id. ¶¶ 19, 21.) Plaintiff completed his studies in 2009. (Id. ¶ 21.)

Upon graduating from the school of radiography, Plaintiff applied for positions in

Winthrop’s radiology department. (Id. ¶ 22.) Winthrop did not extend Plaintiff a job in the

radiology department but instead hired two white males who had no affiliation with Winthrop.

(Id.) As a result of what Plaintiff perceived to be a pattern of discrimination, Plaintiff

complained to Winthrop’s human resources department that he was not hired in the radiology

department because of his race. (Id. ¶ 24.) Subsequently, Plaintiff was interviewed and hired to

work as a “per diem” radiologic technologist. (Id. ¶ 25.)

In or around May 2010, Plaintiff passed New York’s examination and became a certified

radiologic technologist. (Id. ¶ 26.) Plaintiff informed Winthrop’s human resources department

of his certification on June 9, 2010. (Id. ¶ 27.) At this time, and on different occasions through

2014, Plaintiff applied for positions, both full-time and part-time, in Winthrop’s radiology

department. (Id. ¶¶ 28, 30.) Each time Plaintiff applied, Winthrop hired non-Black employees

to fill the vacancies, because according to Winthrop these other candidates were more qualified

than Plaintiff. (Id. ¶¶ 29, 30.) By 2014, Plaintiff had five years of relevant experience. (Id. ¶

33.)

On or about September 11, 2014, Plaintiff applied to work as a part-time radiologic

technologist in Winthrop’s Ambulatory Surgery Center, a position for which he was

subsequently hired on October 1, 2014. (Id. ¶¶ 34–35.)2 As a part-time radiologic technologist,

Plaintiff was given a three-day work schedule consisting of 30–40 hours per week. (Id. ¶ 36.)

From 2014, to 2017, Plaintiff was required to perform tasks beyond the scope of his formal

2 Throughout the second amended complaint, Plaintiff uses the titles “radiology technologist” and “radiologic

technologist” interchangeably. (See Compl. ¶¶ 34–35.)

duties such as mopping the floor, taking out the trash, and cleaning the operating room after

surgery. (Id. ¶ 37.) Other radiologic technologists, who were white, did not have to perform

such tasks. (Id.) In or around October 2016, Plaintiff applied for a position as a full-time

radiology technologist. (Id. ¶ 38.) By this time, Plaintiff had been certified as a radiologic

technologist for six years. (Id.) Plaintiff was not offered the position. (Id.)

By December 2017, Plaintiff was “fed up” and “directly complained” of a “racially

hostile work environment.” (Id. ¶ 39.) Plaintiff does not allege to whom he complained. In any

event, after Plaintiff complained, in or around December 2017, he was “prevented” from

applying for a full-time radiologic technologist position. (Id. ¶ 41.) Then, in or around January

2018, Plaintiff complained to Defendant McKeon that his pay had been improperly docked for

lunch breaks he had not taken. (Id. ¶ 42.) According to the second amended complaint, other

radiologic technologists who were white were paid correctly. (Id.) On or about February 26,

2018, Plaintiff’s work schedule for that day was reassigned to an outside per diem technician, a

white male. (Id. ¶ 43.) On and around March 2018, Plaintiff complained to Winthrop’s human

resources department about a “retaliatory hostile work environment.” (Id. ¶ 44.) Approximately

three months later, in June 2018, Plaintiff again applied to be a full-time radiology technologist

with Winthrop. (Id. ¶ 46.) The job was offered to a white woman. (Id.)

Plaintiff filed a charge of discrimination with Nassau County’s Human Rights

Commission “in or around October 2018.” (Id. ¶ 49.) “In or around October 2018,” Winthrop

transferred Plaintiff to its main hospital where his regular schedule was reduced to 15–20 hours

per week. (Id. ¶ 50.) In or about May 2019, Plaintiff applied for yet another full-time radiology

technologist position with Winthrop but was again denied an offer. (Id. ¶ 55.) Over the course

of fourteen years with Winthrop, Plaintiff applied for and was denied positions on at least ten

separate occasions. (Id. ¶¶ 57–58.)

STANDARD OF REVIEW

To withstand a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible when the alleged facts allow the court to draw a

“reasonable inference” of defendants’ liability for the alleged misconduct. Id. While this

standard requires more than a “sheer possibility” of defendants’ liability, id., “[i]t is not the

Court’s function to weigh the evidence that might be presented at trial” on a motion to dismiss,

Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the

Court must merely determine whether the complaint itself is legally sufficient, and, in doing so,

it is well settled that the Court must accept the factual allegations of the complaint as true.” Id.

(citations omitted).

DISCUSSION

I. Timeliness of Plaintiff’s Section 1981 Claims

The statute of limitations governing claims brought pursuant to Section 1981 is four

years. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004) (concluding that cause

of action under § 1981 is governed by § 1658’s four-year statute of limitations). Defendants

argue that Plaintiff’s claim of discrimination is founded, in part, on conduct that is time-barred.

(Defs.’ Mem. L. Supp. Mot. Dismiss (“Defs.’ Mem.”) 4–6, ECF No. 28.) Defendants are

correct.

Plaintiff commenced the instant action on September 5, 2019. (See ECF No. 1.) Thus to

be timely, the conduct at issue must have occurred no earlier than September 5, 2015. As

pleaded, Plaintiff’s discrimination claim rests, in part, on allegations concerning Winthrop’s

failure to hire or promote Plaintiff on multiple occasions between 2010 and 2014. (See Compl. ¶

32.) Because that conduct falls outside the limitations period, it is time-barred. In other words,

to the extent Plaintiff’s § 1981 discrimination claim is premised upon Winthrop’s alleged refusal

to hire or promote Plaintiff prior to September 5, 2015, the claim is dismissed as untimely. See,

e.g., Russell v. Cty. of Nassau, 696 F. Supp. 2d 213, 230 (E.D.N.Y. 2010) (finding § 1981

discriminations claims arising four years prior to filing the complaint were time-barred).

Plaintiff’s attempt to save his claim from dismissal by invoking the continuing violation

doctrine is unpersuasive. (See Pl.’s Mem. L. Opp’n Mot. Dismiss (“Pl.’s Mem.”) 5–9, ECF No.

29.) The time-barred conduct—Winthrop’s repeated failure to hire or promote Plaintiff between

2010 and 2014—can be properly characterized as discrete discriminatory acts, such that the

continuing violation doctrine does not apply. See Valtchev v. City of New York, 400 F. App’x

586, 588 (2d Cir. 2010) (“Termination, failure to promote, and refusal to hire are considered

‘discrete acts’ which are ‘easy to identify[.]’”); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 110–15 (2002) (rejecting argument that the continuing violation doctrine applies to discrete

acts of discrimination or retaliation); Washington v. Cty. of Rockland, 373 F.3d 310, 317 (2d Cir.

2004) (finding Title VII’s continuing violations doctrine did not apply to § 1981 and § 1983

discrimination claims). And, as Defendants correctly note, each discriminatory act starts a new

clock for the filing of a claim arising therefrom. (See Defs.’ Mem. 5 (citing Nat’l R.R. Passenger

Corp., 536 U.S. at 113).) Indeed, “[r]ecovery for discrete acts of discrimination that occur

outside of the applicable limitations period is precluded, even if the acts are related to acts

alleged in timely filed charges.” Lukasiewicz–Kruk v. Greenpoint YMCA, 404 F. App’x 519, 520

(2d Cir. 2010). This is not to say, as Plaintiff argues (Pl.’s Mem. at 5–6), that conduct outside

the limitations period may not be relevant or admissible as “background evidence” for timely

claims. See, e.g., Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 146 (2d Cir.

2012) (holding that district court properly admitted background evidence predating the onset of

the limitations period and that there was sufficient evidence for a reasonable juror to conclude

that the defendant discriminated against plaintiffs within the limitations period); Thomson v.

Odyssey House, No. 14-CV-3857, 2015 WL 5561209, at *10 (E.D.N.Y. Sept. 21, 2015)

(collecting cases and applying on motion to dismiss), aff’d, 652 F. App’x 44 (2d Cir. 2016). In

any event, discrete acts occurring outside the statute of limitations cannot revive Plaintiff’s

untimely claims.

II. Timeliness of Plaintiff’s NYSHRL Claims

“[C]laims under the NYSHRL . . . are time-barred unless filed within three years of the

alleged discriminatory acts . . . .” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d

Cir. 2007) (citing, inter alia, N.Y.C.P.L.R. § 214(2)). Moreover, courts in this circuit have

determined that the statute of limitations applicable to claims under NYSHRL is “tolled during

the period in which a complaint is filed with the EEOC.” See Taylor v. City of New York, 207 F.

Supp. 3d 293, 302 (S.D.N.Y. 2016) (collecting cases). Defendants argue that Plaintiff’s claim

based on alleged acts occurring prior to January 17, 2016, is time-barred. (Defs.’ Mem. at 7.)

The Court agrees.

According to the second amended complaint, Plaintiff filed a charge of discrimination

with Nassau County’s Human Rights Commission in or around October 2018. (Compl. ¶ 49.)

When a work-sharing agreement is in place, charges that are timely filed with the state agency

are “automatically dual-filed” with the EEOC and vice versa. See Hanley v. Chicago Title Ins.

Co., No. 12-CV-4418, 2013 WL 3192174, at *7 (S.D.N.Y. June 24, 2013) (recognizing same).

Plaintiff received a right to sue letter from the EEOC on June 13, 2019—231 days after the

EEOC received his charge.3 (See Ltr. dated Sept. 10, 2019, Ex. A, ECF No. 6-1.) Accordingly,

Plaintiff’s NYSHRL discrimination claim based on alleged acts occurring prior to January 17,

2016—three years and 231 days before Plaintiff commenced the instant action—is dismissed as

untimely.4

III. Plaintiff’s Actionable Section 1981 and NYSHRL Discrimination Claims

Pursuant to 42 U.S.C. § 1981 “[a]ll persons . . . shall have the same right . . . to make and

enforce contracts . . . 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 . . . .” 42 U.S.C. § 1981(a). Thus,

Section 1981 “outlaws discrimination with respect to the enjoyment of benefits, privileges,

terms, and conditions of a contractual relationship, such as employment.” Patterson v. Cty. of

Oneida, 375 F.3d 206, 224 (2d Cir. 2004). To plead a prima facie case of discrimination, a

plaintiff must allege: (1) plaintiff’s membership in a protected class; (2) plaintiff’s qualification

for a particular position of employment; (3) an adverse employment action by the employer; and

(4) minimal evidence suggesting an inference that the employer acted with discriminatory

motivation. See Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015) (outlining

prima facie case of employment discrimination).

In assessing whether a plaintiff has successfully pleaded a claim under Section 1981 and

NYSHRL, courts employ the same standards used to assess Title VII claims. See Littlejohn, 795

3 Defendants assert in their memorandum of law that Plaintiff filed his discrimination charge on October 25, 2018.

(Defs.’ Mem. at 7.) Plaintiff does not allege the date his discrimination charge was filed, only that it was filed “[i]n

or around October 2018.” (Compl. ¶ 49.) Even if the Court were to assume that Plaintiff filed his discrimination

charge on October 1, 2018, the difference does not alter the analysis here.

4 Here again, Plaintiff argues that the continuing violation doctrine saves his claim from dismissal. (See Pl.’s Mem.

at 9.) For the same reasons stated above with respect to Plaintiff’s Section 1981 claim, the Court is unpersuaded that

the continuing violation doctrine saves Plaintiff’s NYSHRL claim.

F.3d at 312 (analyzing § 1981 claim “pursuant to Title VII principles and the McDonnell

Douglas burden-shifting evidentiary framework”); see also Henry v. NYC Health & Hosp. Corp.,

18 F. Supp. 3d 396, 404, n.4. (S.D.N.Y. 2014) (citing Rojas v. Roman Catholic Diocese of

Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011) (“[C]laims brought under [NYSHRL] are

analytically identical to claims brought under Title VII.”)). Under this standard, the complaint

need not allege facts establishing each element of a prima facie case of discrimination to survive

a motion to dismiss. Alleyne v. NAACP Legal Defense and Educ. Fund, Inc., No. 14-cv-6675,

2015 WL 6869731, at *2 (E.D.N.Y. Nov. 6, 2015) (collecting cases). Instead, a plaintiff need

only plead facts that give plausible support to his claim. Id. Accordingly, at the pleading stage,

a plaintiff alleging employment discrimination must allege that an employer took an adverse

action against him at least in part for a discriminatory reason. Vega v. Hempstead Union Free

Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (citing Littlejohn, 795 F.3d at 310). A plaintiff may do

so either directly, by alleging facts that show an intent to discriminate, or indirectly, by alleging

circumstances that give rise to a plausible inference of discrimination. Id. Defendants do not

dispute that Plaintiff belongs to a protected class, but rather argue that Plaintiff has failed to set

forth any facts establishing a causal connection between any alleged adverse action and racially

discriminatory animus. (Defs.’ Mem. at 14–16.) Put plainly, they maintain that Plaintiff has

failed to plead any facts sufficient to allow a plausible inference of race discrimination. (See id.)

The Court agrees, but only in part.

Defendants devote much of their argument to Plaintiff’s claims concerning discrimination

in its failure to hire Plaintiff to a fulltime position. (See id.) According to Defendants, “other

than alleging that certain positions were given to others who were not [B]lack, his complaint is

completely devoid of any factual evidence that race played any role whatsoever in his

employment at [Winthrop].” 5 (Id. at 15.) Defendants’ argument reveals their misapprehension

of the law. As the Second Circuit has long advised, “[t]he fact that a plaintiff was replaced by

someone outside the protected class will ordinarily suffice for the required inference of

discrimination at the initial prima facie stage . . . including at the pleading stage.” Littlejohn, 795

F.3d at 297 (citation omitted). Here, Plaintiff alleges that in June 2018, he applied for a

radiology technologist position—a position for which he was qualified—that was given to a

white woman. (Compl. ¶ 46.) These allegations, coupled with Defendants alleged history of

preferring white candidates over Plaintiff from 2010 to 2014, are sufficient to meet Plaintiff’s

minimal burden. (See id. ¶¶ 30, 32.) The same cannot be said, however, of Plaintiff’s

allegations concerning Defendants’ failure to hire him in October 2016 and May 2019. (See id.

¶¶ 38, 55.) As to those allegations, Plaintiff offers no facts from which the Court might conclude

that his failure to be hired was motivated by discrimination. Most glaringly, Plaintiff does not

even allege that on those occasions Defendants hired someone outside of his protected class.

Next, Defendants challenge the sufficiency of Plaintiff’s allegations concerning the

menial tasks he was required to perform, Plaintiff’s docked pay during lunch breaks, and single-

day work reassignment. (Defs.’ Mem. at 15–16.) As Defendants’ argument goes, these

allegations are insufficient because Plaintiff has not alleged that he is similarly situated to his

white counterparts whom Plaintiff alleges were treated differently. (Id. at 16.) The Court agrees,

except with respect to Plaintiff’s allegations that he was required to perform menial tasks.

Certainly, to raise an inference of discrimination by reference to comparators outside his

protected class, a plaintiff must sufficiently allege facts that allow the inference that he “was

5 The Court takes this opportunity to remind Defendants that at the pleading stage a Plaintiff need not adduce

“evidence” to support his claim. Rather, the allegations alone, if sufficient, are all that is necessary to defeat a

motion to dismiss.

similarly situated in all material respects to the individuals with whom [he] seeks to compare

[himself].” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotation

marks omitted). The Second Circuit has advised that what constitutes “in all material respects”

varies from case to case, but judgment rests on whether the plaintiff and his comparators were

“subject to the same workplace standards” such as “the standards governing performance

evaluations and discipline.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014). In

other words, the plaintiff and comparators must bear a “reasonably close resemblance,” but need

not be “identical.” Id.

Plaintiff’s allegations of single-day reassignment and docked pay, even assuming these

incidents constitute adverse employment actions6—a point neither side specifically addressed—

are insufficient to raise an inference of discrimination. Plaintiff alleges that his daily work

assignment on or around February 26, 2018, was reassigned to a Caucasian “outside per diem

technician . . . .” (Compl. ¶ 43.) But Plaintiff fails to allege any facts that comparators outside of

his protected class were not subject the same reassignment on occasion. Additionally, Plaintiff

alleges that he “made a complaint . . . about his pay being improperly docked for lunch breaks

not taken[,]” and that “[o]ther radiologic technologists (Caucasian) were paid correctly.” (Id. at

¶ 42.) These allegations fail to provide any detail with respect to whether Plaintiff’s comparators

were similarly situated in all material respects. Specifically, there are no allegations as to

whether these comparators were full-time or part-time employees, or whether they were paid by

salary or hourly. Thus, Plaintiff’s allegations are insufficient to allow the Court to determine if

6 Of note, Plaintiff does not allege that his complaint of docked pay went unresolved, only that the complaint was

lodged. For this reason, the Court would likely deem the allegation insufficient to plead an adverse employment

action. See, e.g., Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (adverse action

that is subsequently rescinded may not be actionable) (collecting cases). Similarly, Plaintiff does not explain how a

single day work re-assignment altered the conditions of his employment.

these comparator’s “lunch breaks” were subject to the same pay structure as Plaintiff. At

bottom, the Court cannot glean from the allegations of re-assignment and docked pay whether

Plaintiff’s white counterparts were treated differently. Such bare allegations fail to give rise to

an inference of discrimination.

Conversely, with respect to allegations concerning menial duties, Plaintiff’s alleged

comparators are sufficiently similar in all material respects. That is, Plaintiff did not compare

himself to doctors, nurses, or other categories of employees at Winthrop. Instead, his

comparators were also radiologic technologists, a position that required both education and state

certification and licensing. Presumably, the radiologic technologists hired by Winthrop possess

the same requisite skills and qualifications for the position as Plaintiff. Indeed, the position is

one which calls for state certification requiring clinical training and classroom instruction, with

courses in anatomy and physiology, patient care procedures, radiation physics, radiation

protection, principles of imaging, medical terminology, positioning of patients, medical ethics,

radiobiology, and pathology. See Radiologic Technologists and Technicians, New York

Licensure Requirements, NEW YORK HEALTH CAREERS,

https://www.healthcareersinfo.net/radiologic-technologists-

technicians/#:~:text=To%20be%20licensed%20in%20New,www.arrt.org (last visited Feb. 3,

2022).7 Any critical difference among those working in the field is likely one of work

experience and seniority. It is difficult to imagine that the presence of more senior technicians in

the workplace could, under any circumstance, relegate the most junior technician to performing

7 The court takes judicial notice of the State of New York’s license requirements. See Wells Fargo Bank, N.A. v.

Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (taking judicial notice of “documents filed

with governmental entities and available on their official websites”). Though a court considering a Rule 12(b)(6)

motion ordinarily may not look outside the pleadings, the court “may take judicial notice of certain matters of public

record without converting the motion into one for summary judgment.” Crespo v. S.C. Johnson & Son, Inc., 394 F.

Supp. 3d 260, 267, n.3 (E.D.N.Y. 2019) (quoting Wells Fargo Bank, N.A., 127 F. Supp. 3d at 166).

janitorial duties like mopping the floor. Given the nature of the allegations—that Plaintiff was

asked to mop the floor, take out the trash, and clean the operating room after surgery where other

radiologic technologists were not—the Court is satisfied that the comparators are similarly

situated and that an inference of discrimination can be drawn. See Brown, 756 F.3d at 230

(rejecting the defendant’s argument that the plaintiff was required to specifically allege

comparator-employees had the same job function, experience, qualifications, and rate of pay and

finding that it was reasonable to conclude when drawing all reasonable inferences in plaintiff’s

favor that employees were subject to the same performance evaluation and disciplinary

standards, and therefore similarly situated, based on allegations that the employees worked in the

same group).

IV. Plaintiff’s Actionable Section 1981 and NYSHRL Hostile Work Environment Claims

A hostile work environment is a workplace that is “permeated with discriminatory

intimidation, ridicule, and insult[.]” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal

citations omitted). Courts analyze hostile work environment claims under § 1981 and NYSHRL

using the same standards as for claims under Title VII. See Love v. Premier Util. Servs., LLC,

186 F. Supp. 3d 248, 256 (E.D.N.Y. 2016) (collecting cases). To state a claim, a plaintiff must

plead facts that would tend to show that the complained-of conduct: “(1) is objectively severe or

pervasive—that is, . . . creates an environment that a reasonable person would find hostile or

abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive;

and (3) creates such an environment because of the plaintiff’s [race].” Patane v. Clark, 508 F.3d

106, 113 (2d Cir. 2007) (quotation marks omitted). Whether a work environment is sufficiently

severe or pervasive is determined by considering 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 an

employee’s work performance.” Harris, 510 U.S. at 23. To survive a motion to dismiss, “a

plaintiff need only plead facts sufficient to support the conclusion that [he] was faced with

‘harassment . . . of such quality or quantity that a reasonable employee would find the conditions

of [his] employment altered for the worse.’” Patane, 508 F.3d at 113 (quoting Terry v. Ashcroft,

336 F.3d 128, 148 (2d Cir. 2003) (internal emphasis omitted)). Defendants argue that Plaintiff

fails to allege severe or pervasive conduct or conduct demonstrating racial animus toward

Plaintiff. (See Defs.’ Mem. at 10–12.) The Court agrees, but here again, only in part.

Plaintiff alleges, among other things, that his applications for positions in the radiology

department were repeatedly denied; that his work was reassigned for a single day; that he

complained that his pay was improperly docked for lunch breaks he did not take; and that he was

involuntarily transferred to Winthrop’s main hospital with reduced work hours. (Pl.’s Mem. at

10 (citing Compl. ¶¶ 28–55).) Each of these events, as alleged, constitute discrete acts that do

not form the basis of a hostile work environment claim. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 114–15 (2002) (“Discrete acts such as termination, failure to promote,

denial of transfer, or refusal to hire are easy to identify . . . and differ in kind from [hostile work

environment claims]”). The unlawful employment practice that gives rise to hostile work

environment claims “cannot be said to occur on any particular day[.]” Id. at 115. Here, the

above allegations occurred on isolated occasions sometimes years apart from one another. At

bottom, these allegations cannot reasonably be characterized as “repeated and pervasive

conduct” that support a hostile work environment claim. Guy v. MTA New York City Transit,

407 F. Supp. 3d 183, 196 (E.D.N.Y. 2016)(“ Although Plaintiff refers repeatedly to his

demotion, suspension, and Defendant's failure to promote him, such actions are discrete

discriminatory acts rather than repeated and pervasive conduct.”); see also Thomson v. Odyssey

House, 14-cv-3857, 2015 WL 5561209, at *10 (E.D.N.Y. Sept. 21, 2015) (concluding that

plaintiff’s termination was a discrete act that could not support a hostile work environment

claim). Plaintiff’s hostile work environment claim premised on these allegations must fail.

That said, Plaintiff’s allegations that he was required to perform menial tasks outside of

his employment role are sufficient to state a claim for hostile work environment. Indeed, courts

in this district have now long found that a hostile work environment may exist where a plaintiff

was inappropriately assigned menial tasks. See Bowen-Hooks v. City of New York, 13 F. Supp.

3d 179, 237 (E.D.N.Y. 2014) (recognizing same and citing Rodriguez v. City of New York, 644

F.Supp.2d 168, 191 (E.D.N.Y. 2008)). This Court found the same in Watson v. Richmond

University Medical Center. See 408 F. Supp. 3d 249, 267 (E.D.N.Y. 2019) (finding the

assignment to menial tasks such as taking out the garbage, despite the plaintiff’s qualifications,

could support a hostile work environment claim). The Court has already determined that the

Plaintiff’s comparators—other radiologic technologists—are sufficiently situated to Plaintiff

with respect to allegations of menial tasks. The only other question then is whether the conduct

as alleged is sufficiently severe or pervasive. Let there be no doubt, the Court finds that it is. As

the Court stated in Watson, “[b]eing made to perform janitorial services and denied recognition

for an earned medical degree could be deemed as constantly humiliating as not returning a

salute.” Id. The same reasoning applies here.

V. Plaintiff’s Section 1981 and NYSHRL Retaliation Claims

To establish a presumption of retaliation at the pleading stage under Section 1981 and the

NYSHRL, a plaintiff must allege “(1) participation in a protected activity; (2) that the defendant

knew of the protected activity; (3) an adverse employment action; and (4) a causal connection

between the protected activity and the adverse employment action.” See Littlejohn, 795 F.3d at

316 (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)). Courts analyze retaliation

claims under § 1981 and NYSHRL using the same standards as claims Title VII. See Schiano v.

Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006) (applying same standard to

NYSHRL claims); Bermudez v. City of New York, 783 F. Supp. 2d 560, 586 (S.D.N.Y. 2011)

(collecting cases) (“Retaliation claims under [Title VII] are treated similarly to retaliation claims

under Section 1981.”). To adequately plead causation, “the plaintiff must plausibly allege that

the retaliation was a ‘but-for’ cause of the employer’s adverse action . . . . ‘But-for’ causation

does not, however, require proof that retaliation was the only cause of the employer’s action, but

only that the adverse action would not have occurred in the absence of the retaliatory motive.”

Vega, 801 F.3d at 90–91 (internal quotation marks, alterations, and citations omitted).

“Causation may be shown by direct evidence of retaliatory animus or inferred through temporal

proximity to the protected activity.” Duplan v. City of New York., 888 F.3d 612, 625 (2d Cir.

2018). Defendants argue that Plaintiff fails to allege that he suffered an adverse employment

action, let alone one that is causally connected to his engagement in a protected activity. (Defs.’

Mem. at 17.) The Court agrees in part.

Plaintiff first alleges that in December 2017 he “directly complained that the disparate

treatment created a racially hostile work environment.” (Compl. ¶ 39.) However, Plaintiff does

not allege to whom he complained, and it is unclear whether Defendants were aware of his

complaint. Thus, this allegation is insufficient to serve as a protected activity. See Castro v. City

of New York, 24 F. Supp. 3d 250, 270 (E.D.N.Y. 2014) (“Ambiguous complaints that do not

make the employer aware of alleged discriminatory misconduct do not constitute protected

activity.” (quoting Int’l Healthcare Exch., Inc. v. Glob. Healthcare Exch., LLC, 470 F. Supp. 2d

245, 257 (S.D.N.Y 2007)); see also Jaeger v. N. Babylon Union Free Sch. Dist., 191 F. Supp. 3d

215, 228–29 (E.D.N.Y. 2016) (finding allegations “lacking in any supporting factual detail” are

“insufficient to satisfy [plaintiff’s] pleading burden”) (collecting cases). Next, Plaintiff alleges

that he complained to Defendant McKeon in or around January 2018 regarding his pay being

improperly docked. (Compl. ¶ 42.) But Plaintiff does not allege an adverse employment action

resulting from this complaint. Rather, Plaintiff alleges that, one month later, a single day of his

work assignment was reassigned to an outside technician. (Id. ¶ 43.) Such conduct is not

enough to meet the definitional requirement of adverse employment action. That is, the conduct

would not “dissuade a reasonable worker from making or supporting a charge of discrimination.”

Hicks, 593 F.3d at 165 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)).

Plaintiff does allege that he made a complaint in March 2018 to Winthrop’s human

resources department regarding “the retaliatory hostile work environment [he] was subjected to.”

(Compl. ¶ 44.) Then, around June 2018, Plaintiff was denied a full-time radiology technologist

position. (Id. ¶ 46.) Given the timing of these events, separated by only three months,

Defendants’ June 2018 failure to hire Plaintiff following his March 2018 complaint is sufficient

to draw an inference of retaliation. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110

(2d Cir. 2010) (“Though this Court has not drawn a bright line defining, for the purposes of a

prima facie case, the outer limits beyond which a temporal relationship is too attenuated to

establish causation, we have previously held that five months is not too long to find the causal

relationship.”). Accordingly, Plaintiff’s retaliation claim survives with respect to these

allegations.

Further, Plaintiff alleges that he filed a charge of discrimination with Nassau County’s

Human Rights Commission in or around October 2018. (Pl.’s Mem. at 15; Compl. ¶ 49.)

Defendants rightly concede that filing a discrimination charge is a protected activity. (See Defs.’

Mem. at 19.) According to Plaintiff, in or around October 2018, he was transferred to

Winthrop’s main hospital, and his work schedule was subsequently reduced to 15–20 hours per

week. (Compl. ¶ 50.) Contrary to Defendants’ assertion, when a transfer results in reduced work

hours, (and therefore, reduced pay, as Plaintiff notes), the transfer can be deemed an adverse

employment action. See, e.g., Raymond v. City of New York, 317 F. Supp. 3d 746, 783

(S.D.N.Y. 2018) (finding that allegations of plaintiff’s transfer from his midnight tour to the day

tour, resulting in a difference in pay, support an inference that he experienced a “reduction in

pay” and therefore an adverse employment action). That is what is alleged to have happened

here. Nonetheless, as Defendants assert, Plaintiff’s failure to allege that, at the time he was

transferred, Defendants were aware that he previously filed a charge of discrimination operates

to defeat his claim. (See Def.'s Mem. at 19.)

In opposition, Plaintiff does not direct the Court to any allegations that might support the

inference that Defendants were aware of the charge at the time of his transfer. Instead, Plaintiff

counters that, as a general matter, it is the EEOC’s practice to forward a copy of any charge to

the respondent and refers the Court to the Commissions website. (Pl.’s Mem. at 16 (citing

Nassau County Human Rights Commission, Complaint Process, Formal Investigative

Procedures, available at https://www.nassaucountyny.gov/415/Complaint-Process (last visited

February 8, 2022)).). Presumably, Plaintiff asks the Court to take judicial notice of the

Commission’s practice and to infer that Defendants had knowledge that he filed a complaint.

Even if the Court chose to take notice, the existence of this practice alone does not allow an

inference that Defendants in this case were made aware of Plaintiff’s charge. Plaintiff alleges

that he filed a charge of discrimination “in or around October 2018.” (Compl. ¶ 49.) Likewise,

he alleges that the transfer occurred “in or around October 2018.” (Id. ¶ 50.) The Court has no

way to discern which came first. And, even if Plaintiff had provided some clarity by alleging

that the transfer occurred after the charge was made but nonetheless in the month of October, the

existence of the Commissioner’s practice to provide a copy of the charges to respondent does not

necessarily lend to the inference that Defendants would have received a copy of the charge in the

same month. Accordingly, Plaintiff fails to establish an inference of retaliation based on his

October 2018 charge of discrimination.

VI. Plaintiff’s NYSHRL Aiding and Abetting Claim

NYSHRL § 296(6) provides that it shall be an unlawful “[f]or any person to aid, abet,

incite compel or coerce the doing of any acts forbidden under this article, or attempt to do so.”

N.Y. Exec. Law § 296(6). Plaintiff seeks to hold McKeon liable under § 296(6). (See Compl. ¶

93.) To prevail under the statute, courts impose “a requirement that liability must first be

established as to the employer/principal before accessorial liability can be found as to an alleged

aider and abettor.” Soloviev v. Goldstein, 104 F. Supp. 3d 232, 253 (E.D.N.Y. 2015) (quoting

DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293 (S.D.N.Y. 1999)) (collecting cases). Indeed,

courts have dismissed claims for aiding and abetting where the underlying claim against the

principal was dismissed. See, e.g., Caputo v. Copiague Union Free Sch. Dist., 218 F. Supp. 3d

186, 192 (E.D.N.Y. 2016) (“[A]s the discrimination and retaliation claims under the NYSHRL

against the District fail, so too must any aider and abettor claims against Leunig.”). Defendants

argue that Plaintiff’s claim against McKeon fails entirely because Plaintiff has not adequately

pleaded a violation of NYSHRL against Winthrop. (See Defs.’ Mem. at 21.) The Court agrees.

Here, the only surviving claims under the NYSHRL are for discrimination and hostile

work environment based on the allegations that Plaintiff was made to perform menial tasks and,

with respect to discrimination and retaliation, Winthrop’s refusal to hire Plaintiff in June 2018.

However, Plaintiff fails to make nonconclusory allegations that McKeon played any role in the

alleged misconduct whatsoever. Indeed, the only nonconclusory allegation as to McKeon is that

Plaintiff reported to her. (Compl. ¶ 9.) Courts in this circuit have held that “‘[w]here the

plaintiff fails to plead any facts suggesting that a defendant displayed any intent to discriminate

or was in any way involved in the alleged discriminatory scheme’ the defendant may not be held

liable under the NYSHRL.” Aiola v. Malverne Union Free Sch. Dist., 115 F. Supp. 3d 321, 337

(E.D.N.Y. 2015) (quoting Lewis v. Triborough Bridge & Tunnel Auth., 77 F. Supp. 2d 376, 381

(S.D.N.Y.1999)). Plaintiff seeks to avoid this holding by arguing, without support, that

“Defendant McKeon, was responsible for the hostile work environment” simply by virtue of

being his employer. (Pl.’s Mem. at 17.) Plaintiff’s opposition is woefully underwhelming. The

claim against McKeon is dismissed.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss the second amended complaint

for failure to state a claim is GRANTED in part and DENIED in part. Plaintiff’s Section 1981

discrimination claim premised upon Defendant Winthrop’s alleged refusal to hire or promote

Plaintiff prior to September 5, 2015, is dismissed. Plaintiff’s NYSHRL discrimination claim

premised on alleged acts occurring prior to January 17, 2016, is dismissed. Plaintiff’s Section

1981 and NYSHRL claims for discrimination, retaliation, and hostile work environment are

dismissed except to the extent based on the allegation that Plaintiff was made to perform menial

tasks and, with respect to discrimination and retaliation, Winthrop’s refusal to hire Plaintiff in

June 2018. Those claims survive. Plaintiff’s NYSHRL claim against Defendant McKeon for

aiding and abetting is dismissed.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

February 18, 2022 LASHANN DEARCY HALL

United States District Judge