Little v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LYNN LITTLE,

Plaintiff, MEMORANDUM AND ORDER

v. 20-CV-1979 (RPK) (MMH)

CITY OF NEW YORK DEPARTMENT OF

FINANCE, CARMELITA HORTON,

MARY SCHEMAN-STELLA, AKUSTA

PANTIN, HAROLD HUTCHER,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

In this lawsuit, pro se plaintiff Lynn Little principally alleges that she suffered gender

discrimination and retaliation in connection with her employment at the City of New York

Department of Finance. For the reasons discussed below, defendants’ motion to dismiss Little’s

claims is granted in part and denied in part.

BACKGROUND

The following facts are drawn primarily from the second amended complaint (“SAC”) and

are assumed true for the purposes of this order. Because plaintiff proceeds pro se, the Court

considers both the facts in her SAC and “the facts and allegations contained in [her] additional

submissions.” Manley v. New York City Police Dep’t, No. 05-CV-679 (FB) (LB), 2005 WL

2664220, at *1 (E.D.N.Y. Oct. 19, 2005).

Plaintiff began working as a clerical associate at the New York Department of Finance on

October 15, 2018. Rosenfeld Decl., Ex. A 1 (Dkt. #36). She alleges that while she worked in the

Department of Finance’s Research and Correction Unit, defendant Harold Hatcher “yelled all day,

every day” on the phone. SAC 2. Plaintiff complained to her supervisor, defendant Carmelita

Horton, about Hatcher “yelling like he was in a park,” but she was told that “the Agency could not

force Harold Hatcher to seek medical attention for his hearing deficit.” Id. at 2–3. Plaintiff claims

that her work performance was negatively impacted by Hatcher’s “yelling.” Id. at 3. She further

alleges that Hatcher “violated [her] right to a healthy work environment and subjected [her] to age

discrimination by him for not seeking a reasonable accommodation for his hearing deficiency.”

Ibid.

On March 14, 2019, plaintiff received a negative performance review. Ibid.; First Am.

Compl. (“FAC”) 4 (Dkt. #7). The review gave her three ratings of “Good” and one rating of

“Marginal,” as well as an overall evaluation of “Marginal.” SAC 2. Later that day, plaintiff was

transferred to the Department of Finance’s Land Records Division. Id. at 3. Plaintiff states that

“the [t]ransfer was effected through” the negative performance review, but that she was actually

transferred in retaliation for complaining about Hatcher. Id. at 1, 3. She also claims, without more

detail, that Horton subjected her to “derogatory comments.” Id. at 6.

Plaintiff alleges that her supervisor in the Land Records Division, defendant Akustaa

Pantin, touched her inappropriately and engaged in “Visual Sexual Harassment.” Id. at 4, 9.

According to plaintiff, Pantin touched her “upper arm area” without consent on three occasions,

and he “look[ed] at [her] body and made [her] feel uncomfortable.” Id. at 4; Opp’n 8 (Dkt. #40).

On the same day of one of the incidents involving unwanted touching by Pantin—April 22,

2019—a visiting supervisor asked plaintiff to file a set of twelve documents. SAC 3. The

supervisor made the request around 4:00 p.m., and plaintiff was unable to file the documents before

the close of business at 5:00 p.m. Ibid.

That evening, plaintiff texted the Deputy in the Land Records Division, defendant Mary

Scheman-Stella, and asked to speak with her the next day “to address an issue of unwanted

touching that occurred on my upper arm area on or about Thursday of last week in the front area

and today in KP’s space while I was sitting in his guest chair.” Opp’n 8. Plaintiff stated that such

touching had occurred three times, that she “[b]elieve[d] it’s calculated,” and that she “need[ed]

to address it now to stop it.” Ibid.; SAC 3. At 8:00 a.m. the next morning, Scheman-Stella texted

back, “Yes you can talk to me.” SAC 3. But plaintiff states that the conversation was “not the

first call of business” that day. SAC 3, 9.

Scheman-Stella later notified plaintiff that her name appeared in a report of incomplete

filings—apparently referring to the documents that plaintiff had not filed before close of business

on April 22. Id. at 4. Scheman-Stella issued plaintiff a “Memorandum of Failing to Complete

Assigned Tasks.” Ibid. Plaintiff claims that she was never trained or informed of the procedure

for filing the documents. Ibid. She further claims that Scheman-Stella “harass[ed] and

antagonize[d] [her] by yelling and screaming across the room and issuing Memorandums for

Failure to Complete Assigned Tasks.” Ibid.

Plaintiff alleges that Scheman-Stella terminated her employment on May 30, 2019. FAC

9; SAC 11.

On August 20, 2019, plaintiff filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”), claiming that she was discriminated against based on her sex

and that she had been retaliated against for engaging in protected activity. Rosenfeld Decl., Ex. A

1. The EEOC provided plaintiff with a right-to-sue letter on January 24, 2020. FAC 6–7.

Plaintiff then filed this suit on April 27, 2020. Compl. 1 (Dkt. #1). The Court construes

plaintiff’s complaint as raising (i) a claim that Hatcher and the Department of Finance violated the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; (ii) a claim that

Scheman-Stella breached her fiduciary duties in violation of New York law; and (iii) a claim that

every defendant but Hatcher committed gender discrimination, created a hostile work

environment, and retaliated against plaintiff in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq.

On November 24, 2021, defendants moved to dismiss plaintiff’s complaint.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint based on “failure to state a claim upon which relief can be granted.” To avoid dismissal

on that basis, a complaint must plead “enough 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 has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(discussing Fed. R. Civ. P. 8). The facial “plausibility standard is not akin to a ‘probability

requirement.’” Ibid. (quoting Twombly, 550 U.S. at 556). But it requires a plaintiff to allege

sufficient facts to enable the court to “draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ibid. In evaluating a motion to dismiss under Rule 12(b)(6), the court

must accept all facts alleged in the complaint as true. Ibid. But it need not adopt “[t]hreadbare

recitals of the elements of a cause of action” that are “supported by mere conclusory statements.”

Ibid.

The complaint of a pro se plaintiff must be “liberally construed, and . . . however inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotations and citations omitted). Pro

se status, however, does not “exempt a party from compliance with relevant rules of procedural

and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006)

(internal quotation marks omitted) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

DISCUSSION

Defendants’ motion to dismiss is granted as to all of plaintiff’s claims except for her

retaliation claim. Plaintiff’s claims against the individual defendants fail because plaintiff cannot

sue individual defendants under Title VII and the ADEA, and because plaintiff’s breach of

fiduciary duty claim is inadequately pleaded. Moreover, plaintiff has not adequately pleaded

against her employer claims of gender discrimination, hostile work environment, or age

discrimination. But plaintiff has set out sufficient facts to survive a motion to dismiss on her

retaliation claim.

I. Claims Against the Individually Named Defendants

Plaintiff’s claims against the individual defendants are dismissed.

Title VII. Plaintiff’s Title VII claims against Horton, Scheman-Stella, and Pantin are

deficient. Title VII is directed at prevented unlawful employment practices by employers. See 42

U.S.C. § 2000e-2(a). Accordingly, the Second Circuit has made clear that “an individual

defendant cannot be held personally liable under Title VII.” Schiano v. Quality Payroll Sys., Inc.,

445 F.3d 597, 608 n.8 (2d Cir. 2006); see Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995)

(“We now hold that individual defendants with supervisory control over a plaintiff may not be held

personally liable under Title VII.”), abrogated on other grounds, Burlington Ind. v. Ellerth, 524

U.S. 724 (1998).

ADEA. Plaintiff’s ADEA claim against Hatcher fails for the same reason. Because the

ADEA “was modeled after Title VII,” “[c]ourts in this circuit have . . . consistently found that the

ADEA, like Title VII, does not impose liability on individuals.” Williams v. New York City Dep’t.

of Educ., No. 17-CV-1996 (AJN), 2018 WL 4735713, at *4 (S.D.N.Y. Sept. 29, 2018) (citation

omitted); see 29 U.S.C. § 623(a); see also Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011)

(“[D]ismissal of the Title VII and ADEA claims against the individual Defendants was appropriate

as neither statute subjects individuals, even those with supervisory liability over the plaintiff, to

personal liability.”). Plaintiff’s ADEA claim against Hatcher is therefore dismissed with prejudice.

Breach of fiduciary duties. Insofar as plaintiff seeks to press a claim against Scheman-

Stella for breach of fiduciary duties, see SAC 8, that claim is dismissed. “To state a cause of action

to recover damages for breach of fiduciary duty, a plaintiff must allege: ‘(1) the existence of a

fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the

defendant’s misconduct.” Yukos Capital S.A.R.L. v. Feldman, 977 F.3d 216, 241 (2d Cir. 2020)

(citation omitted). Here, plaintiff has not alleged facts sufficient to show any fiduciary relationship

on the part of Scheman-Stella. “A fiduciary relationship exists under New York law ‘when one

[person] is under a duty to act for or to give advice for the benefit of another upon matters within

the scope of the relation.’” Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 599 (2d Cir.

1991) (citation omitted). In contrast, “the employer-employee relationship does not, on its own,

create a fiduciary relationship.” Daniels v. Am. Airlines, No. 19-CV-03110 (MKB), 2020 WL

9816000, at *25 (E.D.N.Y. Sept. 4, 2020). Plaintiff appears to contend that Scheman-Stella failed

to perform certain work duties—for example, maintaining filing equipment or providing storage

space for documents. SAC 8, 10. But she alleges no facts suggesting the existence of a fiduciary

relationship that was breached. Accordingly, defendants’ motion to dismiss plaintiff’s fiduciary-

duty claim is granted.

II. Claims Against Plaintiff’s Employer

Construing plaintiff’s claims against her employer as being brought against the City of

New York, I grant in part and deny in part defendants’ motion to dismiss those claims. Plaintiff’s

claims against the City of New York Department of Finance should have been brought against the

City of New York, because the Department of Finance is a non-suable entity. See N.Y. City

Charter Ch. 17 § 396; Ximines v. George Wingate High Sch., 516 F.3d 156, 159–60 (2d Cir. 2008).

But the City has not sought dismissal on that ground and addresses the claims on the merits. I

therefore construe plaintiff’s claims against the City of New York Department of Finance as being

brought against the proper defendant, the City of New York, and direct the Clerk of Court to update

the case caption accordingly. See, e.g., Thompson v. Grey, No. 08-CV-4499 (JBW), 2009 WL

2707397, at *5 (E.D.N.Y. Aug. 26, 2009) (“Where plaintiff’s claims are brought against non-

suable entities, the court construes them as brought against the City of New York.”); Philippe v.

NYC Dep’t of Educ., No. 11-CV-3693 (NGG) (CLP), 2012 WL 4756073, at *1 n.1 (E.D.N.Y. Oct.

3, 2012) (“Although the [Department of Education] is not a suable entity under the New York City

Charter, the court construes Plaintiff’s action as being brought against the City of New York.”).

So construed, plaintiff’s claims alleging gender discrimination and hostile work environment are

not adequately pleaded, but plaintiff’s retaliation claim survives. The motion to dismiss the ADEA

claims against the City is also granted.

A. Any gender-discrimination claim against the City is dismissed without prejudice.

Insofar as plaintiff seeks to press a gender-discrimination claim against the City, that claim

is dismissed. To state a claim for gender discrimination, a plaintiff must plausibly allege that

“(1) she was within [a] protected class; (2) she was qualified for [a] position; (3) she was subject

to an adverse employment action; and (4) the adverse action occurred under circumstances giving

rise to an inference of discrimination.” Walsh v. New York City Housing Authority, 828 F.3d 70,

75 (2d Cir. 2016) (citation omitted).

Here, plaintiff has not plausibly alleged that she suffered any adverse employment action

because of her gender. To adequately plead that an adverse employment action was motivated by

gender discrimination, a female plaintiff must offer direct evidence of discriminatory intent or at

least plausibly allege “that she was treated differently from ‘similarly situated’ males.” Shumway

v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997) (citation omitted); see Montana v.

First Fed. Sav. and Loan Ass’n of Rochester, 869 F.2d 100, 106 (2d Cir. 1989) (“To establish a

prima facie case of sex discrimination under Title VII, plaintiff was required to show that she was

treated less favorably than comparable male employees in circumstances from which a gender-

based motive could be inferred.”). Plaintiff fails to make either showing here. Accordingly, any

gender-discrimination claim in the complaint is dismissed.

B. Plaintiff’s hostile-work-environment claim against the City is dismissed without

prejudice.

Plaintiff fails to allege a plausible hostile-work-environment claim against the City.

Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The Supreme

Court has held that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a

congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in

employment, which includes requiring people to work in a discriminatorily hostile or abusive

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal quotation

marks omitted). To prevail on a hostile work environment claim, a plaintiff must show, among

other requirements, harassment that “was ‘sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment.’” Alfano v. Costello, 294

F.3d 365, 373 (2d Cir. 2002) (citation omitted). “[R]epeated touching of intimate parts of an

unconsenting employee’s body is by its very nature severely intrusive.” Redd v. New York Div. of

Parole, 678 F.3d 166, 179 (2d Cir. 2012). But “[c]asual contact” such as “[a] hand on the

shoulder” or a “a brief hug” would not generally “create a hostile environment in the absence of

aggravating circumstances such as continued contact after an objection.” Id. at 177 (quoting

Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006)) (second alteration in original); see

Carter v. State of New York, 151 F. App’x 40, 41 (2d Cir. 2005). Applying these standards, courts

in this circuit have found plaintiffs failed to state a claim based on allegations of touching a

“[p]laintiff’s shoulder and bicep on three occasions,” Bell v. Baruch Coll.—CUNY, No. 16-CV-

8378 (VSB), 2018 WL 1274782, at *5 (S.D.N.Y. Mar. 9, 2018); touching a plaintiff’s “shoulders

on three occasions,” Lonergan-Milligan v. New York State Off. of Mental Health, No. 14-CV-

274S, 2018 WL 6605686, at *4 (W.D.N.Y. Dec. 17, 2018); and a manager’s “persistently putting

his arm on [an employee’s] shoulder while speaking to her in an office setting,” along with telling

the employee “that she ‘would look hot’ in red coveralls,” MacMaster v. City of Rochester, No.

05-CV-6509, 2007 WL 2892015, at *9 (W.D.N.Y. Sept. 28, 2007).

Plaintiff has failed to adequately plead a claim of hostile work environment program under

these principles. Plaintiff’s allegations that Pantin touched her “upper arm area” on three occasions

and “kept looking at [her] body” on at least one other occasion, Opp’n 8; SAC 4, when viewed in

the light most favorable to her, do not constitute allegations of conduct “‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.’” Alfano, 294 F.3d at 373 (citation omitted). Instead, they closely resemble

allegations that courts in this circuit have previously found not “so extraordinarily severe as to be

actionable under Title VII.” MacMaster, 2007 WL 2892015, at *9. Accordingly, plaintiff’s

hostile-work-environment claim is dismissed.

C. Plaintiff’s retaliation claim against the City survives.

Plaintiff has adequately pleaded that the City retaliated against her in violation of Title VII.

Title VII prohibits an employer from discriminating against an employee “because [the

employee] has opposed any practice made an unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted, or participated in any manner in any

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To make

out a prima facie case of retaliation, a plaintiff must ultimately demonstrate that “(1) she was

engaged in protected activity; (2) the employer was aware of that activity; (3) the employee

suffered a materially adverse action; and (4) there was a causal connection between the protected

activity and that adverse action.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11,

24 (2d Cir. 2014). But at the motion-to-dismiss stage, “the allegations in the complaint need only

give plausible support to the . . . prima facie requirements.” Duplan v. City of New York, 888 F.3d

612, 625 (2d Cir. 2018). Accordingly, to survive a motion to dismiss, the plaintiff must only

“plausibly allege that: (1) defendants discriminated—or took an adverse employment action—

against [her], (2) because [s]he has opposed any unlawful employment practice.” Ibid.

Plaintiff has satisfied that standard. She alleges that she was fired because she complained

about being sexually harassed by Pantin. SAC 4. And her allegations regarding the timing of her

firing are sufficient to give rise to an inference of retaliatory intent. While the Second Circuit has

“not ‘drawn a bright line’ defining the maximum time period that can give rise to an inference of

causation, six weeks fits comfortably within any line [the court] might draw.” Nagle v. Marron,

663 F.3d 100, 111 (2d Cir. 2011) (citation omitted); see, e.g., White v. Dep’t of Corr. Servs., 814

F. Supp. 2d 374, 390 (S.D.N.Y. 2011) (“[T]he passage of approximately one month between the

protected activity and the retaliation is a sufficiently short period of time for a reasonable jury to

determine that the two events were causally connected.”); Offor v. Mercy Med. Ctr., 676 F. App’x

51, 54 (2d Cir. 2017) (“[Defendant] put [plaintiff] on . . . probation only one month after she

retained an attorney, and that temporal proximity is enough at this stage to give rise to an inference

of retaliatory intent.”); Joseph v. Ownes & Minor Distrib., Inc., 5 F. Supp. 3d 295, 319 (E.D.N.Y.

2014) (“Plaintiff alleges that his first complaint to management was on August 30, 2010, and he

was terminated one month later. This is sufficient to meet Plaintiff’s ‘minimal’ burden to show a

causal connection at the prima facie stage.”). Here, the complaint alleges that plaintiff reported

sexual harassment by Pantin on April 22, 2019, and was fired on May 30, 2019. FAC 4. That

temporal proximity suffices to plead a causal connection at this stage of the case.

Defendants’ contrary arguments lack merit. Defendants contend that plaintiff was fired

because she failed to perform her job satisfactorily, citing negative performance reviews and

written reprimands that plaintiff received. Opp’n 12, 14. But at the motion-to-dismiss stage,

plaintiff’s allegations “need only give plausible support to the reduced prima facie requirements

that arise . . . in the initial phase of a Title VII litigation,” Duplan, 888 F.3d at 625, and this Court

must consider only the allegations in the complaint and draw all reasonable inferences in plaintiff’s

favor, Penguin Grp., 609 F.3d at 34. Under this standard, plaintiff has adequately pleaded

retaliation. Accordingly, defendants’ motion to dismiss is denied with respect to plaintiff’s

retaliation claim.

D. Plaintiff’s ADEA claim against the City is dismissed without prejudice.

Plaintiff’s allegations fail to establish a plausible age-discrimination claim against the City.

Under the ADEA, 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 age.” 29 U.S.C. § 623(a)(1) (emphasis added). Plaintiff identifies no facts suggesting

that the City treated her differently because of her age. For example, plaintiff does not allege that

the City considered her age when terminating her employment or transferring her to the Land

Records Division. Plaintiff contends only that Hatcher “yell[ed] all day everyday” because

“Hatcher was older in age,” but Hatcher’s alleged failure “to obtain a reasonable accommodation

for his hearing deficiency” does not constitute unlawful age discrimination, even if it “was

distracting and precluded the Plaintiff from performing her [t]ask[s] and [a]ssignments.” SAC 7.

CONCLUSION

Defendants’ motion to dismiss is granted in part and denied in part. Plaintiff’s Title VII

and ADEA claims against the individually named defendants are dismissed with prejudice,

because the defects with these claims are “substantive” and cannot be cured with “better pleading.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). The Court construes

plaintiff’s claims against the Department of Finance as against the City of New York, and the Clerk

of Court is directed to update the case caption accordingly. Defendants’ motion to dismiss

plaintiff’s retaliation claim against the City of New York is denied. Plaintiff’s gender

discrimination, harassment, retaliation, and age discrimination claims against the City of New

York are dismissed without prejudice, as is plaintiff’s fiduciary-duty claim against Scheman-

Stella. These claims are dismissed without prejudice because it is possible that a valid claim might

be stated were additional supporting facts set out in an amended complaint. See Gomez v. USAA

Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999). Within 30 days, plaintiff may file an amended

complaint that addresses the defects outlined in this memorandum.

Absent an amended complaint, litigation will continue on plaintiff’s remaining claim.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: September 28, 2022

Brooklyn, New York