Cain v. North Country Community College

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

PRECIOUS CAIN,

8:20-cv-232

Plaintiff, (GLS/DJS)

v.

NORTH COUNTRY COMMUNITY

COLLEGE et al.,

Defendants.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFF:

Finn Law Offices RYAN M. FINN, ESQ.

P.O. Box 66509

Albany, NY 12206

FOR THE DEFENDANTS:

North Country Community

College & Tara Smith

Sugarman Law Firm LLP PAUL V. MULLIN, ESQ.

211 West Jefferson Street JENNA WHITE KLUCSIK, ESQ.

Syracuse, NY 13202

Victoria Barber

HON. LETITIA JAMES KASEY K. HILDONEN

New York State Attorney General MARK G. MITCHELL

The Capitol Assistant Attorneys General

Albany, NY 12224

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Precious Cain commenced this action against defendant

North Country Community College (NCCC), Victoria Barber, and Tara

Smith, pursuant to Title VI,1 42 U.S.C. §§ 1981 and 1983, and New York

State law. (Compl., Dkt. No. 1.) Pending are defendants’ motions to

dismiss. (Dkt. Nos. 12, 15.) For the following reasons, the motions are

granted.

II. Background

A. Facts2

Cain, an African American female, was employed by NCCC as an

adjunct professor in August 2018. (Compl. ¶¶ 1, 15.) As an adjunct

professor, she worked in several prisons as part of a “Second Chance Pell

Program,” which allows eligible inmates to earn a two-year degree. (Id.

¶ 16.)

In January 2019, Cain “applied for a full-time position as a business

1 See 42 U.S.C. §§ 2000d-2000d-7.

2 The facts are drawn from Cain’s complaint, (Dkt. No. 1), and presented in the light

most favorable to her.

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instructor” for NCCC, which “would have been a promotion for [her].” (Id.

¶ 20.) Her supervisor in the business department encouraged her to do so.

(Id.) “Despite having superior qualifications for the position, [Cain] was not

even granted an interview; was consistently misled about the status of the

selection process; and, ultimately in May 2019 [she] was passed over by

two white males who obtained the position of business instructor despite

having inferior qualifications.” (Id. ¶ 21.) Cain “was not happy” about this

decision and was “especially disturbed by the fact that the selection

committee did not even bother to interview her for the position for which

she was qualified.” (Id. ¶ 22.)

In June 2019, Cain “was wrongfully accused of theft and sabotaging

a co-worker’s desk.” (Id. ¶ 23.) “Because of the workplace stress, [Cain]

had developed a hand tremor.” (Id. ¶ 24.) One morning, while Cain was

entering the Franklin Correctional Facility, an employee of the prison

noticed her hand tremor, and called Barber, Deputy Superintendent for

Programs at Franklin Correctional Facility, and “informed her that [Cain]

was acting nervous and suspicious.” (Id. ¶¶ 4, 25-26.) Barber, who “was in

a position of power and was trying to intimidate” Cain, “wrongfully accused

[her] of being under the influence of alcohol”; “made up this false

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accusation about suspicion of alcohol use”; and “leaned into [Cain’s] face,

yelling at her and asking her if she felt nervous.” (Id. ¶¶ 27-28, 33.)

Cain “informed her supervisor that it was concerning and alarming

that . . . Barber had acted so aggressively and that she made up this false

allegation,” and she “raised several concerns about the mistreatment and

informed her supervisors that she believed that the decision was racially

motivated.” (Id. ¶¶ 29-30.) Cain’s supervisor said she “understood [Cain’s]

concerns and that she completely understood if [Cain] did not want to

return to the [p]rison,” (id. ¶ 31), and the “Chair of the Business

Department . . . said he [also] completely understood [Cain] not wanting to

return to the prisons,” (id. ¶ 41).

“Despite the issue of race discrimination being raised, there was no

investigation, no remedial action taken, and no opportunity for [Cain] to be

further heard regarding her mistreatment.” (Id. ¶ 32.) As “the only

employee at [NCCC], or in the prison, that was a person of color, . . . she

felt targeted and unsafe.” (Id. ¶ 34.) In the spring of 2019, Cain “was

falsely accused of theft and trashing a coworker’s classroom/desk.” (Id.

¶ 36.) Cain “felt the false accusations were racially motivated and that

[Barber] had a vendetta.” (Id. ¶ 37.)

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Cain’s last day of work was at the end of June 2019, because she

“was constructively discharged after her working conditions became

intolerable,” and there were no other jobs available, nor were any offered to

her. (Id. ¶¶ 17, 43.) She “notified her supervisors of the decision to resign

her position on July 4th and 5th, 2019.” (Id. ¶ 18.)

“[NCCC] policy requires a prompt and thorough investigation

whenever an issue of racial discrimination is suspected or complained

about,” but, NCCC “failed to investigate even though [Cain] made clear she

felt unsafe as she was the only African American and was singled out and

targeted,” which “should have triggered an investigation by [NCCC].” (Id.

¶ 45.) Smith, the Director of Human Resources at NCCC, “was aware of

the allegations and refused to investigate even though it is her duty and

responsibility.” (Id. ¶¶ 6, 46.) In addition, Cain alleges that NCCC, through

Smith, “provided false information and argument to the New York State

Unemployment Department by claiming that [Cain] quit her job without

good reason, and that she had declined other employment opportunities.”

(Id. ¶ 47.)

B. Procedural History

Cain brings the following causes of action: (1) a violation of Title VI

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against NCCC; (2) an employment discrimination claim pursuant to 42

U.S.C. §§ 1981 and 1983 against all defendants; (3) a retaliation claim

pursuant to 42 U.S.C. §§ 1981 and 1983 against all defendants; (4) a

hostile work environment claim pursuant to 42 U.S.C. §§ 1981 and 1983

against all defendants; and (5) a violation of the New York Human Rights

Law (NYHRL)3 against all defendants. (Compl. ¶¶ 48-79.) Barber moves

to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), (Dkt. No. 12), and NCCC

and Smith move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6),

(Dkt. No. 15).

V. Standards of Review

The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled

and will not be repeated here. For a full discussion of the governing

standard, the court refers the parties to its prior decision in Ellis v. Cohen &

Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

Under Rule 12(b)(1), the standard of review is similar to that of Rule

12(b)(6), except that the court “may refer to evidence outside the pleadings

. . . [and a] plaintiff asserting subject matter jurisdiction has the burden of

proving by a preponderance of the evidence that it exists.” Makarova v.

3 See N.Y. Exec. Law § 296.

6

United States, 201 F.3d 110, 113 (2d Cir. 2000) (citations omitted).

IV. Discussion

As an initial matter, Cain concedes dismissal of her § 1981 claims.

(Dkt. No. 18 at 154.) Cain has also withdrawn her Title VI claim against

NCCC, as well as her purported constructive discharge claim and her

request for punitive damages. (Id.) Thus, Cain’s remaining claims are her

employment discrimination, hostile work environment, and retaliation

claims, all pursuant to § 1983, as well as her claim alleging a violation of

NYHRL against all defendants. (Compl. ¶¶ 58-79.)

A. Employment Discrimination

Defendants argue that Cain’s employment discrimination claim is

subject to dismissal because she fails to plausibly allege that she suffered

an adverse employment action, or that any alleged mistreatment was

racially motivated.4 (Dkt. No. 12, Attach. 2 at 7-9; Dkt. No. 15, Attach. 4

at 3-8.) The court agrees.

4 NCCC asserts that it cannot be held liable under § 1983 because Cain has failed to

plausibly allege Monell liability against it and Smith, and because Cain does not allege that

Smith had any personal involvement in the facts giving rise to her claims. (Dkt. No. 15,

Attach. 4 at 12-16.) Barber argues that the allegations against her must be dismissed because

she is entitled to qualified immunity. (Dkt. No. 12, Attach. 2 at 18-19.) As explained below,

because the complaint fails to state a claim pursuant to § 1983, the court need not reach these

issues.

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To establish a claim of employment discrimination under Section

1983, a plaintiff must allege that: “(1) [s]he is a member of a protected

class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered

an adverse employment action; and (4) the adverse action took place

under circumstances giving rise to the inference of discrimination.” Ruiz v.

Cty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010) (noting that

discrimination claims brought pursuant to Title VII and Section 1983 are

analyzed under the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)); see also Patterson v. Cnty.

of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To satisfy the prima facie

requirements of a discrimination claim in the employment context, a plaintiff

need not provide “substantial evidence of discriminatory intent” at the initial

stage of the litigation, but still has the “minimal burden of showing facts

suggesting an inference of discriminatory motivation.” Littlejohn v. City of

New York, 795 F.3d 297, 311 (2d Cir. 2015) (citations omitted). “Therefore,

to avoid dismissal, a plaintiff must ‘allege facts showing a plausible

inference of discrimination’ because of a protected characteristic.”

Sanders-Peay v. N.Y.C. Dep’t of Educ., No. 14-CV-4534, 2014 WL

6473507, at *3 (E.D.N.Y. Nov. 18, 2014) (quoting De La Pena v. Metro. Life

8

Ins. Co., 552 F. App’x 98, 98-100 (2d Cir. 2014)). “Naked assertions of

race discrimination . . . without any specific factual allegation of a causal

link between the defendants’ conduct and the plaintiff’s protected

characteristic are too conclusory to withstand a motion to dismiss.” Id.

(citation and alterations omitted).

Here, Cain fails to allege facts plausibly suggesting that she suffered

an adverse action. Indeed, it is unclear what, if any, adverse action Cain

suffered. Cain argues that “the false claims raised against [her] including

her separation of employment and her employer providing false information

to Unemployment can constitute adverse action, since the damage to [her]

reputation would plausibly have a tangible negative effect on [her] future

job prospects.” (Pl.’s Mem. of Law at 16-17.)5 She further contends that

“such acts by NCCC and Smith plausibly alleges ‘but for’ causation

because the chilling effect of the actions would likely dissuade a

reasonable employee from making a complaint.” (Id.)

Notably, Cain’s own allegations state that she made a “decision to

5 Citations to “Pl.’s Mem. of Law” are to Cain’s responsive memorandum of law, which

is contained within a voluminous filing. (Dkt. No. 18 at 144-62.) Along with her opposition to

defendants’ motions, Cain also included the transcript from her hearing before the New York

State Unemployment Insurance Appeal Board. (Id. at 3-130.) Pursuant to Fed. R. Civ.

P. 12(d), the court has excluded from its consideration the transcript of the proceeding, which

is outside of the pleadings.

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quit,” and she “stopped teaching with the consent of her supervisor and

department chair.” (Compl. ¶¶ 19, 47.) And, “[a]lthough a constructive

discharge can constitute an adverse action,” Ryle v. Rehrig Pac. Co.,

No. 1:19-CV-1478, 2020 WL 6196144, at *10 (N.D.N.Y. Oct. 22, 2020),

Cain has conceded that her constructive discharge claim has no merit,

(Dkt. No. 18 at 154).

Further, Cain has not alleged any type of demotion, loss of benefits,

change in her job duties, or that she was facing any reasonable threat of

termination. (See generally Compl.) Nor does she allege any specific

reason for her decision to leave her job other than the purported false

accusations made against her by Barber, the “workplace stress,” and

NCCC’s alleged failure to address her complaints. (Id. ¶¶ 24, 27-28, 45,

47); see Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)

(explaining that examples of adverse actions “include a termination of

employment, a demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly diminished

material responsibilities, or other indices . . . unique to a particular

situation.” (internal quotation marks and citation omitted)); Ryle, 2020

WL 6196144, at *10. And, Cain’s argument that “the damage to [her]

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reputation would plausibly have a tangible negative effect on [her] future

job prospects,” (Dkt. No. 18 at 160-61), is entirely speculative.

To the extent Cain alleges that she “was passed over [for a

promotion] by two white males who obtained the position of business

instructor despite having inferior qualifications,” and that she was not

interviewed “for the position for which she was qualified,” (Compl.

¶¶ 21-22), such conclusory allegations are insufficient to support her claim.

Indeed, Cain provides no specificity as to the alleged differences in her

qualifications as compared to the “two white males,” nor do her allegations

support an inference of discriminatory intent. See Pertillar v. AAA W. &

Cent. N.Y., No. 5:16-cv-238, 2018 WL 583115, at *5 (N.D.N.Y. Jan. 26,

2018) (“Although the amended complaint generally alleges that [the

plaintiff] was passed over for a promotion while a white individual, who was

allegedly less qualified, was promoted, the amended complaint fails to

provide meaningful specifics of the alleged difference in qualifications, let

alone discriminatory intent. Without any specificity as to the qualifications

considered for each position and without any reference to specific

statements or individual circumstances that suggest discriminatory

treatment, [the plaintiff’s] allegations do not support an inference that [the

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defendant] acted with a discriminatory purpose.” (citations omitted)).

Finally, to the extent Cain argues that defendants’ failure to

investigate constitutes an adverse action, (Pl.’s Mem. of Law at 16-17), “the

Second Circuit has held that a complete ‘failure to investigate a complaint

of discrimination cannot be considered an adverse employment action.’”

Nunez v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 14-CV-6647,

2015 WL 4605684, at *17 (S.D.N.Y. July 31, 2015) (quoting Fincher v.

Depository Tr. & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)); see

Brooks v. City of Utica, 275 F. Supp. 3d 370, 379 (N.D.N.Y. 2017) (“[I]f a

failure to investigate does not qualify as an adverse employment action

under Title VII’s broader definition of the term for retaliation claims, such

failure plainly does not qualify under the stricter definition for discrimination

claims.” (citation omitted)).

Even if Cain has alleged facts plausibly suggesting that she suffered

an adverse action, there are no allegations to support a plausible inference

that any of the defendants acted with a discriminatory purpose. Cain’s

allegations that she “felt targeted and unsafe,” (Compl. ¶ 34), and “felt the

false accusations [against her] were racially motivated and that [Barber]

had a vendetta,” (id. ¶ 37), do not suffice. See Brodt v. City of New York, 4

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F. Supp. 3d 562, 568 (S.D.N.Y. 2014) (“In reviewing the sufficiency of a

complaint’s allegations, a plaintiff’s ‘feelings and perceptions of being

discriminated against are not evidence of discrimination.’” (quoting

Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999)); Williams v.

Wellness Medical Care, P.C., No. 11-CV-5566, 2013 WL 5420985, at *6

(S.D.N.Y. Sept. 27, 2013) (“[W]ithout sufficient facts, even the most

sincerely held beliefs [of discrimination] do not comprise a sufficient basis

for withstanding a 12(b)(6) attack.” (citations omitted)). Indeed, Cain does

not allege any facts connecting her claims of unfair treatment to her race.

See Sanders-Peay, 2014 WL 6473507, at *3 (dismissing employment

discrimination claim where the plaintiff’s claim “rest[ed] solely on personal

disputes” and allegations that she “was treated unfairly because of [the

defendant’s] personal vendetta against [her].” (internal quotation marks and

citations omitted)).

For all of these reasons, defendants’ motions to dismiss Cain’s

employment discrimination claim are granted, and the claim is dismissed.

B. Retaliation

To state a § 1983 retaliation claim, “the plaintiff must plausibly allege

that: (1) defendants acted under the color of state law, (2) defendants took

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adverse employment action against h[er], (3) because [s]he complained of

or otherwise opposed discrimination.” Vega v. Hempstead Union Free

Sch. Dist., 801 F.3d 72, 91 (2d Cir. 2015).

As explained above, because Cain has not alleged facts plausibly

suggesting that she suffered an adverse action, her retaliation claim also

fails.

And, even assuming that Cain suffered an adverse action, there are

no allegations to support a plausible inference that the “adverse action

would not have occurred in the absence of [a] retaliatory motive.” Vega,

801 F.3d at 90-91 (“[B]ut-for causation does not . . . 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.” (internal quotation marks and citation omitted)).

Accordingly, defendants’ motions to dismiss Cain’s retaliation claim

are granted, and the claim is dismissed.

C. Hostile Work Environment

Defendants argue that Cain fails to state a hostile work environment

claim because her allegations do not rise to the requisite level, nor does

she allege any facts that would “suggest that any conduct by any person

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was motivated, in whole or in part, by her race.” (Dkt. No. 12, Attach. 2

at 14-17; Dkt. No. 15, Attach. 4 at 8-9.) The court agrees.

To establish a § 1983 hostile work environment claim, “a plaintiff

must show that the workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to alter the

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

environment.” Littlejohn, 795 F.3d at 320-21 (internal quotation marks and

citation omitted). The workplace environment must be objectively “severe

or pervasive enough that a reasonable person would find it hostile or

abusive, and the victim must subjectively perceive the work environment to

be abusive.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014)

(citations omitted). And, when asserting a claim for hostile work

environment based on discriminatory animus, a plaintiff must also

“adequately plead a causal connection between his protected status and

the alleged hostile work environment.” Trujillo v. City of New York, No. 14

Civ. 8501, 2016 WL 10703308, at *14 (S.D.N.Y. Mar. 29, 2016), aff’d, 696

F. App’x 560 (2d Cir. 2017) (citations omitted).

Cain has failed to state a claim for a hostile work environment. She

argues that she has raised a plausible inference of a hostile work

15

environment for the following reasons: there was “more favorable treatment

of employees not in the protected group, coupled with the circumstances

surrounding [her] suspension”; there were “false allegations made against

[her] on two different occasions”; her “altercation” with Barber was of a

“threatening nature”; defendants “fail[ed] to investigate”; and there were

“false statements made to Unemployment after her separation from

employment.” (Pl.’s Mem. of Law at 14.) However, a review of the

complaint reveals only vague and conclusory allegations that fail to support

a plausible inference of a hostile work environment. See Trujillo, 2016 WL

10703308, at *14 (“[B]ald statements—without any supporting facts—are

too conclusory to permit an inference of discriminatory animus.” (citations

omitted)).

Accordingly, defendants’ motions to dismiss Cain’s hostile work

environment claim are granted, and the claim is dismissed.

D. NYHRL

Because all of Cain’s federal claims are dismissed, the court declines

to exercise supplemental jurisdiction over her NYHRL claim. See Klein &

Co. Futures, Inc. v. Bd. of Trade of City of N.Y., 464 F.3d 255, 262 (2d Cir.

2006) (“It is well settled that where, as here, the federal claims are

16

eliminated in the early stages of litigation, courts should generally decline

to exercise pendent jurisdiction over remaining state law claims.” (citations

omitted)). Accordingly, Cain’s NYHRL claim is dismissed as well.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Barber’s motion to dismiss (Dkt. No. 12) is

GRANTED; and it is further

ORDERED that NCCC’s and Smith’s motion to dismiss (Dkt. No. 15)

is GRANTED; and it is further

ORDERED that Cain’s complaint (Dkt. No. 1) is DISMISSED; and it is

further

ORDERED that the Clerk close this case; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

December 8, 2020 oe

Albany, New York a Tie

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