Bowman v. New York State Housing and Community Renewal (NYS HCR)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LORITA M. BOWMAN,

Plaintiff,

– against –

OPINION & ORDER

NEW YORK STATE HOUSING AND 18 Civ. 11596 (ER)

COMMUNITY RENEWAL, ARLENE

MARDER, and MARGARET

RAMROOP,

Defendants.

RAMOS, D.J.:

Lorita M. Bowman, proceeding pro se, brings this suit against her employer, the

New York State Division of Housing and Community Renewal (“HCR”), and HCR

employees Arlene Marder and Margaret Ramroop. Bowman alleges that the defendants

failed to promote her because of her race, age, national origin, and sex. Bowman filed an

Equal Employment Opportunity Commission (“EEOC”) complaint concerning this

discrimination, and Defendants allegedly retaliated by transferring Bowman to a different

position. Bowman additionally claims she suffered from a hostile work environment.

�ese claims are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

1981, the Age Discrimination in Employment Act of 1967 at 29 U.S.C.A. § 621 et seq.

(“ADEA”), and New York Civil Service Law § 61 ((McKinney 2012). Lastly, Bowman

claims that her right to union representation was violated. Pending before the Court is

Defendants’ motion to dismiss Bowman’s Complaint on the basis of lack of subject

matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6).

For the reasons set forth below, Defendants’ motion to dismiss Bowman’s

Complaint is GRANTED. Bowman’s case is dismissed, but she may replead her

discrimination, retaliation, and hostile work environment claims.

I. BACKGROUND

A. Bowman’s Employment with HCR

Bowman’s allegations are set forth in a 106-page Complaint, consisting of a pro

se form complaint, her written statement of claim, documents and communications with

the EEOC, documents and communications with HCR, attachments of legal regulations,

and written statements and documents describing Bowman’s co-workers.

Bowman is a 61-year old, black and Cherokee Indian woman. Compl. at 3–4,

Doc. 2. She has been employed with the New York State HCR at their Rent Score

Operations Unit (“Score”) since 2012 where she screens and dockets rental applications

and serves petitions for administrative review. Compl. at 9, 17, 84. Prior to working

with the Score unit, Bowman was assigned to HCR’s Major Capital Improvement Unit

(“MCI”) for four years. Id. at 82; Mem. of Law in Supp. Of Defs.’ Mot. to Dismiss, Doc.

27 at 4.

Documents provided by Bowman show that in March 2013, HCR’s Bureau Chief

and then-Deputy Bureau Chief Anthony Tatano conducted an investigative interview with

Bowman concerning a complaint that she had instigated a fight between other employees

and called other employees “stupid.” Id. at 47–48. �e two were also told by other

employees that Bowman advised co-workers not to do their work and to ignore

supervisors, and spoke derogatorily about other employees. Id. at 61. In a memorandum

to Bowman after the interview, Tatano wrote that the employees provided the information

“in confidence and thus [Tatano] will not disclose their names, and therefore no formal

action will be taken at this time.” Id. at 61–62. In response to the complaints, Bowman

denied any wrong-doing in March 2013 memorandum and a June 2013 affidavit. Id. at

47–52.

Several years later, in May 2016, the Bureau Chief emailed her regarding

complaints by her co-workers about her phone use. Id. at 74. Specifically, the co-workers

reported Bowman frequently had personal phone conversations during the workday. Id.

Some of these conversations reportedly disparaged co-workers who were within earshot.

Id. Bowman replied to the manager’s email, denying that she used the telephone or

disparaged co-workers. Id.

More than one year later, in August 2017, Bowman had a separate dispute with

another employee over her spraying of a “very light and airy Mist fragrance.” Compl. at

68–69. �e other employee accused Bowman of continuing to spray the fragrance

throughout the day despite her requests to stop. Bowman’s supervisor was aware of this

dispute, but Bowman denied any wrong-doing in an August 2017 affidavit submitted to

her supervisor. Id.

In that same year, Bowman received a positive performance review describing her

work as “exemplary.” Compl. at 98.

B. HCR’s 2017 Promotions

Bowman took a civil service exam in January 2017 in order to apply for a position

listed on the “Rent Examiner Trainee List.” Compl. at 7. She passed the exam with a

grade of 80 percent. Id. However, she was notified in November 2017 that she would

not be promoted.1 Id.

Bowman’s claims that two employees with lower passing scores of 70 percent

were promoted. As alleged, both employees are female and under the age of forty, one is

white, and the other is white and Hispanic. Compl. at 43. Both employees worked for

HCR for less time than Bowman did: the first was employed for two years and four

months, Id. at 38, and the second was employed for two years. Id. at 43. In her

1 Bowman adds that in 2015, the “same situation happened,” i.e. that she had applied for a position listed on

the Rent Examiner Trainee List but had not been promoted, though she did not file any formal complaints

then. Compl. at 7.

complaint, Bowman states that she worked with HCR for approximately ten years, six

years in the Score unit and for four years in the MCI unit prior to that. Id. at 82.

C. EEOC Complaint

On April 23, 2018, Bowman filed a complaint with the EEOC alleging

discrimination based on her race, age, and national origin. Compl. at 9, 12. In the charge

Bowman stated that she was not promoted while the employees that were younger, white,

had lower exam grades, and had less seniority than she were promoted. Id. at 9.

Bowman did not include any claims of discrimination based on her sex or hostile work

environment in the EEOC charge. Id. at 9, 12, 87.

�e next day, on April 24, 2018, Bowman was summoned by Margaret Ramroop,

an HCR “Specialist 2” of the Score unit, to meet with Anthony Tatano, Chief of the

Property Management Bureau. Compl. at 82. Bowman’s direct supervisor, Arlene

Marder, also attended the meeting. Compl. at 7, 82.

Tatano stated that work in Bowman’s department was being reduced in size due to

technological developments, and that Bowman would be transferred from the Score unit

to the MCI unit, where she had originally worked until 2011. Bowman describes the

MCI unit in her Complaint as “unfavorable.” Compl. at 82, 87. Bowman’s

responsibilities at the MCI unit were to “docket MCI applications.” Id. at 82. She does

not describe how these responsibilities differed from those in the Score unit, nor how the

MCI unit was otherwise “unfavorable.” Bowman claims that her work at Score was

given to a newly appointed probationary Junior Rent Examiner who had been appointed

to Score less than six months prior. Id.

Approximately one week after the meeting, in a May 1, 2018 memorandum to

Tatano, Bowman claimed that her transfer was due to her challenging Tatano with a

“‘verbal’ rebuttal and exercise[ing her] NYS Civil Service rights.” Id. at 85. Bowman’s

Complaint does not state the time or content of this verbal rebuttal. �e day after Tatano

informed Bowman of her transfer, Bowman contacted the EEOC to bring an additional

charge of retaliation and age discrimination. Compl. at 87.

�e EEOC reviewed Bowman’s allegations and was unable to conclude that a

violation of federal law had occurred. Bowman submitted a written rebuttal of the

EEOC’s evaluation to the EEOC on August 31, 2018. Id. at 16. �e EEOC reviewed

Bowman’s rebuttal, and issued a Notice of Dismissal and Right to Sue letter on

September 12, 2018. Compl. at 12. Bowman filed her Complaint on December 12, 2018.

II. STANDARD

Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for

lack of subject matter jurisdiction when the district court lacks the statutory or

constitutional power to adjudicate the case. �e party asserting subject matter

jurisdiction carries the burden of establishing, by a preponderance of the evidence, that

jurisdiction exists. Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir.

2008). When evaluating a motion to dismiss for lack of subject matter jurisdiction, the

Court accepts all material factual allegations in the complaint as true, but does not draw

inferences from the complaint favorable to the plaintiff. J.S. ex rel. N.S. v. Attica Cent.

Sch., 386 F.3d 107, 110 (2d Cir. 2004).

When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must

accept all factual allegations in the complaint as true and draw all reasonable inferences

in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). �e Court is not

required to credit “mere conclusory statements” or “threadbare recitals of the elements of

a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)); see also id. at 681 (citing Twombly, 550 U.S. at

551). “To survive a motion to dismiss, a complaint must contain sufficient factual matter

. . . to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly,

550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

�e same standard applies to motions to dismiss pro se complaints. See Zapolski

v. Fed. Republic of Germany, 425 F. App’x 5, 6 (2d Cir. 2011). �e Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and

interpret them to raise the “strongest [claims] that they suggest.” Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006) (internal quotation marks and

citations omitted).

While the Court must construe a pro se complaint liberally, Hill v. Curcione, 657

F.3d 116, 122 (2d Cir. 2011), “even pro se plaintiffs asserting civil rights claims cannot

withstand a motion to dismiss unless their pleadings contain factual allegations sufficient

to raise a right to relief above the speculative level.” Jackson v. N.Y.S. Dep’t. of Labor,

709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555) (internal

quotation marks omitted). A pro se plaintiff’s pleadings still must contain “more than an

unadorned, the defendant-unlawfully-harmed me accusation.” Iqbal, 566 U.S. at 678. A

complaint that “tenders naked assertion[s] devoid of further enhancement” will not

suffice. Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

III. ELEVENTH AMENDMENT IMMUNITY

Defendants argue that Bowman’s ADEA and Section 1981 claims are barred by

Eleventh Amendment immunity.2 �is argument is only partially correct. Bowman’s

ADEA and Section 1981 claims for relief against HCR are barred by sovereign immunity.

However, only claims for legal relief against Marder and Ramroop in their official

capacities are barred by sovereign immunity, while equitable claims are not. In other

words, the Eleventh Amendment bars Bowman’s claims for money damages, but not her

claims for an injunction against Marder and Ramroop ordering her promotion.

2 Defendants make no immunity argument against Bowman’s Title VII claims.

Although Bowman does not specify, the Court will consider Bowman’s claims to

be against Marder and Ramroop in both their individual and official capacities. See

Garcia v. Munoz, No. 94 Civ. 7940, 1995 WL 498777, at *1 (S.D.N.Y. Aug. 21, 1995)

(“Where the complaint leaves doubt as to which capacity the official is being sued in, it is

preferable for the court to review both possibilities.”); see also Frank v. Relin, 1 F.3d

1317, 1326 (2d Cir. 1993) (explaining that courts give leeway in reading under which

capacity a governmental defendant is sued).

In general, “state governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity, or unless Congress has abrogated the

states’ Eleventh Amendment immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir.

2009) (citation omitted) (quotations omitted). �is immunity extends both to states

themselves and to their agents and instrumentalities. Id. HCR is a division of New York

State. Compl. at 9. For this reason, ADEA and Section 1981 claims against HCR are

dismissed with prejudice. Additionally, legal claims under the ADEA and Section 1981

against Marder and Ramroop in their official capacities are dismissed with prejudice.

�e Eleventh Amendment, however, “does not bar suits against state officials in

their official capacities, where those suits seek prospective injunctive or declaratory relief

for violations of federal law.” Keitt v. New York City, 882 F. Supp. 2d 412, 448 (S.D.N.Y.

2011) (citing Ex Parte Young, 209 U.S. 123, 159–60 (1908)). Under this framework, the

Court is “specifically required . . . to examine whether there exists an ongoing violation

of federal law.” State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 96 (2d Cir.

2007) (emphasis original). �is is satisfied “when Plaintiff allege[s] that the defendants

[are] continuing to adhere to the approach that was used to revoke [the plaintiff’s]

liberty.” Pierre v. New York Dep’t of Corr. Servs., No. 05 Civ. 0275 (RJS), 2009 WL

1583475, at *18 (S.D.N.Y. June 1, 2009) (emphasis original) (citation omitted).

Bowman alleges that Defendants are continuing to adhere to their violative

decisions — namely, that she continues to have an unfavorable assignment and is being

denied a promotion due to discrimination, and that she was assigned to the MCI unit due

to retaliation. Compl. at 7, 43, 85. Bowman’s claims for equitable relief thus satisfy the

injunctive relief exception to Eleventh Amendment immunity.

Equitable relief is available under the ADEA. “In any action brought to enforce

[the ADEA] the court shall have jurisdiction to grant such legal or equitable relief as may

be appropriate to effectuate the purposes of this chapter.” 29 U.S.C. § 626(b). Equitable

relief is likewise available under Section 1981. “A § 1981 suit is treated in the same

manner as a § 1983 action for purposes of Eleventh Amendment Immunity,” so “when

prospective injunctive relief is sought, the Eleventh Amendment is no bar to

using [Section 1981] as the vehicle for such relief.” Scelsa v. City Univ. of New York, 806

F. Supp. 1126, 1138 (S.D.N.Y. 1992).

Accordingly, Bowman’s equitable claims against Marder and Ramroop in their

official capacities are not barred by sovereign immunity. However, these equitable claims

are nevertheless dismissed for failure to state a claim, as set forth more fully below.

Bowman’s claims under the ADEA and Section 1981 against HCR and her legal claims

against Marder and Ramroop in their official capacities are barred by sovereign

immunity, and are dismissed with prejudice and may not be replead.

IV. DISCRIMINATION, RETALIATION,

AND HOSTILE WORK ENVIRONMENT CLAIMS

Bowman’s complaint does not sufficiently establish violations of Title VII,

Section 1981, and the ADEA for discrimination, retaliation, and hostile work

environment. �e claims are dismissed without prejudice and may be replead.

A. Discrimination

Bowman fails to allege that HCR discriminated against her. To establish a prima

facie case of discrimination under Title VII, Section 1981, and the ADEA, a plaintiff

“must show: (1) he belonged to a protected class; (2) he was qualified for the position he

held; (3) he suffered an adverse employment action; and (4) that the adverse employment

action occurred under circumstances giving rise to an inference of discriminatory

intent.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citation omitted).

For purposes of the instant motion, Defendants contest just the fourth element,

arguing that Bowman fails to plead her alleged mistreatment was because of her

membership in a protected class. Discriminatory mistreatment at work is actionable

“only when it occurs because of an employee’s sex, or other protected characteristic.”

Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). “[T]he fact that the promotions in

question were given to younger people of a different race is not sufficient” to show

discrimination. Duviella v. JetBlue Airways, 353 F. App’x 476, 478 (2d Cir. 2009).

Rather, “[a] plaintiff relying on disparate treatment evidence must show she was similarly

situated in all material respects to the individuals with whom she seeks to compare

herself.” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (citations

omitted) (quotations omitted).

In this case, Bowman states her own race, age, national origin, and sex and those

of two other employees. Compl. at 3–7. However, Bowman does not plead facts to show

that she was not promoted because of her race, age, national origin, or sex as required by

Patane. 508 F.3d at 112. Bowman does not plead that she and the two promoted

employees are similarly situated in all material respects. Bowman also fails to plead facts

showing that Defendants’ decisions were motivated by discrimination, and thereby

insufficiently pleads that Defendants discriminated against her.

Additionally, Bowman’s sex discrimination claims under Title VII must be

dismissed because Bowman did not exhaust her remedies by including sex discrimination

in her EEOC charge. “[C]laims that were not asserted before the EEOC may be pursued

in a subsequent federal court action if they are reasonably related to those that were filed

with the agency.” Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003). �is requirement

is met when the “conduct complained of would fall within the scope of the EEOC

investigation which can reasonably be expected to grow out of the charge that was

made.” Id. at 200–01. Essentially, this exception functions as “an allowance of loose

pleading” and “is based on the recognition that EEOC charges frequently are filled out by

employees without the benefit of counsel and that their primary purpose is to alert

the EEOC to the discrimination that a plaintiff claims [he] is suffering.” Id. (citations

omitted).

In Bowman’s case, Bowman’s EEOC complaint made no mention of sex or

gender at all. Compl. at 9. With no mention at all of sex or gender, these sex

discrimination claims cannot be reasonably expected to grow out of the charges made.

Accordingly, Bowman’s claims of race, age, and national origin discrimination are

insufficiently pleaded, but are dismissed without prejudice and may be replead.

Bowman’s Title VII claim of sex discrimination is not properly pleaded or properly

exhausted, and is dismissed with prejudice and may not be replead.

B. Retaliation

Bowman insufficiently pleads her claim of retaliation. Retaliation claims under

Title VII, Section 1981, and the ADEA are analyzed under the same framework. Dickens

v. Hudson Sheraton Corp., LLC, 167 F. Supp. 3d 499, 522 (S.D.N.Y. 2016), aff’d, 689 F.

App’x 670 (2d Cir. 2017). A retaliation claim has four elements: “(1) the employee

engaged in [a] protected activity; (2) the employer was aware of that activity; (3) the

employee suffered an adverse employment action; and (4) there was a causal connection

between the protected activity and the adverse employment action.” Id.

�e Court finds that the second and third retaliation element are not sufficiently

pleaded.

Protected Activity

A retaliation claim requires that “the employee engaged in [a] protected activity.”

Dickens 167 F. Supp at 522. “[B]oth formal and informal complaints [are] protected

activity….” Schaper v. Bronx Lebanon Hosp. Ctr., 408 F. Supp. 3d 379, 391 (S.D.N.Y.

2019) (citing Hubbard v. Total Commc’ns, Inc., 347 F. App’x 679, 680–81 (2d Cir. 2009).

Bowman’s filing of a formal EEOC charge is sufficient to establish that she engaged in a

protected activity. �is element is satisfied.

Knowledge of Protected Activity

�e second element of a retaliation claim requires showing that Defendants knew

of Bowman’s protected activity. Dickens 167 F. Supp. 3d at 522. To be clear, this

knowledge does not need to be personal knowledge. “Knowledge of professionals within

the institution tasked with investigating and evaluating claims of discrimination, even if

such individuals do not influence the decisionmaker, is sufficient” to satisfy this element.

Moccio v. Cornell Univ., 889 F. Supp. 2d 539, 585 (S.D.N.Y. 2012), aff’d, 526 F. App’x

124 (2d Cir. 2013).

Here, Bowman simply does not allege that Defendants knew of her protected

activity. Bowman’s Complaint makes no reference to HCR, Marder, Ramroop, or any

other HCR employees being aware of her EEOC complaint. While Bowman alleges that

her transfer was because of her EEOC complaint, Compl. at 81–86, she does not allege

Defendants’ knowledge with reference to any factual support. Bowman claims that her

transfer to the MCI unit was due to her challenging Tatano with a “verbal’ rebuttal and

exercis[ng her] NYS Civil Service rights.” Id. at 85. �is claim alone, with no details,

does not establish that this rebuttal made Tatano or any other HCR employee aware of

Bowman’s EEOC complaint. Bowman’s Complaint thereby fails to sufficiently plead this

required element.

Adverse Employment Action

Bowman also fails to sufficiently show that her transfer constituted an adverse

employment action. To show an adverse action, Bowman must plead facts that show the

alleged adverse action “could well have dissuaded a reasonable employee in his position

from complaining of unlawful discrimination.” Davis-Garett v. Urban Outfitters, Inc.,

921 F.3d 30, 44 (2d Cir. 2019). While Defendants’ arguments rely on Galabya v. New

York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) and related cases, “Galabya . . .

no longer represents the state of the law.” Davis-Garett 921 F.3d 30, 43 (2d Cir. 2019)

(citation omitted) (quotation omitted).3

Notably, “[t]he standard for an ‘adverse employment action’ in a retaliation claim

. . . is not as demanding as it is in a discrimination claim.” Quadir v. New York State

Dep’t of Labor, 39 F. Supp. 3d 528, 542 (S.D.N.Y. 2014). An employer’s action can be

materially adverse under a retaliation claim “even if the challenged action does not affect

the employee’s compensation, terms, conditions, or privileges of employment” and thus

would not be materially adverse for purposes of a discrimination claim. Cerni v. J.P.

Morgan Sec. LLC, 208 F. Supp. 3d 533, 539 (S.D.N.Y. 2016) (citing Kessler v.

Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 208 (2d Cir. 2006)) (quotations

omitted).

In Bowman’s case, she only describes that she was transfered from the Score unit

to the MCI unit. Bowman’s complaint contains no details on any change in the

conditions of her employment, diminishment of pay, or lessened chances for promotion.

�e only distinction suggested by the Complaint is that the responsibilities of Score and

of MCI differ in that they deal with docketing different applications, but no details are

provided on how that docketing differs between units. Compl. at 82, 84. Bowman only

states that the MCI unit is an “unfavorable unit.” Compl. at 89. �ough transfer to an

“unfavorable unit” could be a diminishment in prestige or a lessened chance of

promotion, Bowman’s statement is wholly conclusory. Without elaboration on how the

transfer to the MCI unit materially effects Bowman, Bowman falls short of showing a

materially adverse employment action.

But-for Cause

“To establish causation, a plaintiff must show that the protected [activity] was a

substantial motivating factor in the adverse employment action.” Cioffi v. Averill Park

3 Under Galabya, to sustain an adverse employment action one must “endure a materially adverse change

in the terms and conditions of employment.” 202 F.3d at 640.

Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir. 2006) (citations omitted)

(quotations omitted). Importantly, “[a] plaintiff may establish causation indirectly by

showing his [protected activity] was closely followed in time by the adverse employment

action.” Id. Bowman establishes but-for cause by pleading that the transfer took place

one day after the EEOC complaint. �is is sufficiently close in time to establish

causation. Bowman’s complaint thus meets the fourth, but-for cause element of a

retaliation claim.

***

A retaliation claim must satisfy all four of the elements considered above.

Dickens 167 F. Supp. 3d at 522. Bowman insufficiently pleads her retaliation claim by

failing to show that Defendants knew of her protected activity or that she suffered an

adverse employment action. Her retaliation claims are dismissed without prejudice and

may be replead.

C. Hostile Work Environment

Bowman’s hostile work environment claim fails for two reasons. First, Bowman

does not meet the exhaustion of remedies requirement under Title VII and the ADEA.4

Second, her claim fails because Bowman does not show that her workplace was

permeated with hostility.

In order to bring a claim under Title VII or the ADEA, a plaintiff must first

exhaust her remedies with administrative agencies such as the EEOC. Fleming v. Verizon

N.Y., Inc., 419 F. Supp. 2d 455, 462, 467 (S.D.N.Y. 2005) (Title VII); Holowecki v. Fed.

Express Corp., 440 F.3d 558, 562–63 (2d Cir. 2006), aff’d, 552 U.S. 389 (2008) (ADEA).

For hostile work environment in particular, a plaintiff must actually allege a hostile work

environment claim in her EEOC charge. “Generally, presenting a disparate treatment or

retaliation claim to the EEOC will not exhaust a hostile work environment claim.”

4 While Section 1981 claims do not have an exhaustion requirement, for the reasons set forth below,

Bowman fails to adequately allege a hostile work claim under the Section.

Wright v. New York City Off-Track Betting Corp., No. 05 Civ. 9790 (WHP), 2008 WL

762196, at *3 (S.D.N.Y. Mar. 24, 2008) (collecting cases).

In this case, Bowman did not include a hostile work environment charge in her

EEOC complaint and thereby did not exhaust her remedies for her Title VII and ADEA

claims. Compl. at 9. To be clear, Defendants do not argue that Bowman’s claims under

Section 1981 carry any exhaustion requirements. Bowman’s hostile work environment

claims under Title VII and the ADEA are dismissed with prejudice and may not be

replead.

Even if she had properly exhausted her administrative remedies with regard to her

hostile work environment claim, it would still fail because Bowman fails to show that her

workplace was permeated with hostility. Hostile work environment claims under Title

VII, the ADEA, and Section 1981 require the same elements. Davis-Garett, 921 F.3d at

41 (linking the ADEA to Title VII); Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 227

(2d Cir. 2004) (linking Section 1981 to Title VII). A hostile work environment claim

requires “showing [1] that the harassment was sufficiently severe or pervasive to alter the

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

[2] that a specific basis exists for imputing the objectionable conduct to the employer.”

Alfano v. Costello, 294 F.3d 365, 373–74 (2d Cir. 2002). For the first element, a plaintiff

must show that the “workplace was so severely permeated with discriminatory

intimidation, ridicule, and insult that the terms and conditions of her employment were

thereby altered.” Id. at 373. Generally, one-off incidents are not enough to establish a

hostile work environment, but a single incident can establish a hostile work environment

if it is extraordinarily severe. Id.

Defendants contest that Bowman does not sufficiently plead the first element. �e

Court agrees. It is unclear what exactly Bowman considers to be hostile. Bowman’s lack

of promotion is a one-off event, and she does not allege that her dealings with

management resulted in disciplinary action. Even if she were to allege that her 2013 and

2016 run-ins with management were “hostile,” Bowman’s Complaint does not show that

her workplace was otherwise “permeated with discriminatory intimidation, ridicule, and

insult.” Alfano, 294 F.3d at 373. She therefore fails to meet the first element of a hostile

work environment.

Bowman’s hostile work environment claims are insufficiently pleaded, and are

dismissed without prejudice and may be replead.

V. CLAIMS AGAINST MARDER AND RAMROOP

To the extent that Bowman sues Marder and Ramroop in their individual

capacities, her claims also fail because Title VII and the ADEA do not permit claims

against defendants in their individual capacities. “Neither [Title VII nor the ADEA]

subjects individuals, even those with supervisory liability over the plaintiff, to personal

liability.” Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011).

Additionally, though Section 1981 does permit claims against defendants in their

individual capacities, no facts are pleaded to show Marder or Ramroop were personally

involved in the allegedly discriminatory conduct. Under Section 1981, “[i]t must be

shown that the defendant had personal involvement in the allegedly discriminatory

conduct in order for personal liability to attach.” Schanfield v. Sojitz Corp. of Am., 663 F.

Supp. 2d 305, 344 (S.D.N.Y. 2009) (citation omitted). A position of seniority is not

enough to hold an individual liable. Id. at 344 (citing Black v. Coughlin, 76 F.3d 72, 74

(2d Cir. 1996)) (“[P]ersonal liability of a defendant may not be predicated solely on a

position of seniority.”).

In this case, Bowman has not alleged that Marder and Ramroop had personal

involvement in the allegedly discriminatory conduct. Bowman pleads that Ramroop

called her into the meeting at which Bowman was transferred and that Marder was

present. Compl. at 82. No pleadings indicate that Marder or Ramroop were involved in

the actual decision to transfer Bowman. See Schanfield, 663 F. Supp. at 343 (discussing

personal involvement in the decision to fire plaintiff). �e conduct giving rise to

Bowman’s claim is discriminatory failure to promote and retaliation, and it is unclear

whether Marder and Ramroop “actually participate[d] in the conduct giving rise to [those

claims.].” Id. at 343 (citation omitted) (quotations omitted). �ese facts alone are

insufficient to establish discriminatory conduct.

Title VII and ADEA claims against Marder and Ramroop in their individual

capacities are dismissed with prejudice because Title VII and the ADEA do not permit

claims against defendants in their individual capacities. Section 1981 claims are

dismissed without prejudice because, while such claims are allowed under Section 1981,

in Bowman’s case there are insufficiently pleaded.

VI. CLAIMS REGARDING WEINGARTEN UNION RIGHT VIOLATIONS

Bowman’s claim that her Weingarten right was violated is dismissed. When

employees in unionized workplaces face a confrontation with their employer, �e

National Labor Relations Act guarantees them the right to assistance from a union

representative. N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 260 (1975) (citing National

Labor Relations Act, §§ 7, 8(a)(1) as amended 29 U.S.C.A. §§ 157, 158(a)(1)). �is right

does not extend to workplaces in which the employees are not represented by a union.

IBM Corp., 341 NLRB 1288 (2004). Nothing in Bowman’s pleadings indicates that

Bowman is in a union or entitled to union representation in discussions with her

employers.

Moreover, if Bowman’s Weingarten right has been violated, the proper forum to

hear her complaint is the National Labor Relations Board, not this Court. �e “NLRB

has exclusive jurisdiction . . . when there is an arguable violation of the NLRA.” Rest.

Law Ctr. v. City of New York, 360 F. Supp. 3d 192, 223 (S.D.N.Y. 2019) (citing Marine

Engineers Beneficial Ass’n v. Interlake S. S. Co., 370 U.S. 173 (1962)). Any claim that

Bowman’s Weingarten right was violated is dismissed with prejudice and may not be

replead.

VII. CLAIMS UNDER NEW YORK CIVIL SERVICE LAW

Bowman’s claims under New York state law are misplaced. Bowman brings a

claim mistakenly citing the predecessor form of a statute that is adjacent to the one which

governs this situation.5 �e effective section governing promotions is New York Civil

Service Law § 61 (McKinney 2012). See Oliphant v. Caldwell, 212 F. Supp. 3d 480, 483

(S.D.N.Y. 2016) (“When a position opens up, the [civil service employer] must certify a

list of candidates from the eligible list who are willing to accept the position or

promotion, and must hire or promote a candidate who has or is tied for one of the three

highest scores.”) (citing N.Y. Civ. Serv. Law § 61(1)).

�e Court’s independent review establishes that Bowman’s state law claims are

not appropriate for federal court. Disputes over New York agency promotion decisions

belong in Article 78. See Cherry v. New York State Civil Serv. Comm'n, 55 A.D.3d 604,

604, 865 N.Y.S.2d 303, 303 (2008) (proceeding pursuant to Article 78 to review

compliance of New York State Division of Housing and Community Renewal promotion

decisions with Civil Service Law § 61); see also N.Y. C.P.L.R. § 7803 (McKinney 2019).

“[T]he [New York] Supreme Court has exclusive jurisdiction over Article 78 proceedings,

with the exception of the Article 78 proceedings that must be brought in the Appellate

Division.” Cartagena v. City of New York, 257 F. Supp. 2d 708, 710 (S.D.N.Y. 2003)

(citation omitted) (quotation omitted). In employment cases against New York state for

which “there is no mention by either plaintiff or defendants of a prior Article 78 hearing,”

federal courts decline to exercise jurisdiction. Camacho v. Brandon, 56 F. Supp. 2d 370,

380 (S.D.N.Y.), on reconsideration in part, 69 F. Supp. 2d 546 (S.D.N.Y. 1999); see also

Birmingham v. Ogden, 70 F. Supp. 2d 353, 372 (S.D.N.Y. 1999) (“[F]ederal courts are

loath to exercise jurisdiction over Article 78 claims. Even where a plaintiff has one or

5 Bowman cites N.Y. Civ. Serv. Law § 16 (McKinney 1909), a predecessor to Promotions examinations,

N.Y. Civ. Serv. Law § 52 (McKinney 2012). While § 52 describes factors in promotion, § 61 describes the

actual appointment or promotion procedure. N.Y. Civ. Serv. Law § 61 (McKinney 2012).

more federal claims still alive . . . the interests of judicial economy are not served by

embroiling this court in a dispute over local laws and state procedural requirements.”).

Bowman does not plead that there was a prior Article 78 hearing and pleads

nothing to indicate her claims regarding violations of the process of selecting promotions

belong anywhere except in an Article 78 proceeding. As such, Bowman’s state law

claims are dismissed with prejudice and may not be replead.

VIII. CONCLUSION

For the reasons set forth above, Bowman’s Complaint is dismissed. However,

Bowman may replead certain claims, specifically:

 Discrimination, retaliation, and hostile work environment claims under

Section 1981 for legal and equitable relief against Marder and Ramroop in

their individual capacities.

 Discrimination, retaliation, and hostile work environment claims under

Section 1981 for equitable relief against Marder and Ramroop in their official

capacities.

 Discrimination and retaliation claims under Title VII against HCR, except

those alleging sex discrimination.

 Discrimination and retaliation claims Title VII against Marder and Ramroop

in the official capacities, except those alleging sex discrimination.

 Discrimination and retaliation claims under the ADEA for equitable relief

against Marder and Ramroop in their official capacities.

All other claims are dismissed with prejudice and may not be re-filed.

If Bowman choses to re-file, she must do so by April 15, 2020. Defendants’

answer or objections to an Amended Complaint by Bowman must be submitted by May

6, 2020.

The Clerk of the Court is directed to terminate the motions, Docs. 26 and 30.

It is SO ORDERED.

Dated: March 11, 2020

New York, New York Ze /

EDGARDO Ramos, U.S.D.J.

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