# Craven v. City Of New York

> District Court, S.D. New York · May 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10323220

## Case

- **Court:** District Court, S.D. New York
- **Decided:** May 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10323220

## How later opinions describe it (automated extraction)

- rejecting “the motivating factor test”
- holding that identification of a single comparator suffices at the pleading stage

## Opinion text

SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
CHERYL CRAVEN, :
:
Plaintiff, :
: 19-CV-1486 (JMF)
-v- :
: OPINION AND ORDER
THE CITY OF NEW YORK, et al., :
:
Defendants. :
:
---------------------------------------------------------------------- X

JESSE M. FURMAN, United States District Judge:
Plaintiff Cheryl Craven brings employment discrimination claims against her former
employer, the City of New York (“City”), and her former supervisors, Amy Weiswasser and
Laura Parker. In particular, Craven asserts claims under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e-2 et seq.; Section 1981 of the Civil Rights Act of 1866,
42 U.S.C. § 1981 (“Section 1981”), brought pursuant to 42 U.S.C. § 1983 (“Section 1983”); the
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law. §§ 290 et seq.; the New
York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101 et seq.; and the
Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). Defendants now move, pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, to dismiss all claims. For the reasons discussed below,
Defendants’ motion is GRANTED in part and DENIED in part.
BACKGROUND
The following facts — drawn from the First Amended Complaint (“Complaint”), ECF
No. 25 (“Compl.”) and documents that are incorporated by reference in, or integral to, the
Complaint — are assumed to be true for purposes of this motion. See DiFolco v. MSNBC Cable
Craven worked for the New York City Human Resources Administration (“HRA”) from
September 1995 to March 31, 2017. Compl. ¶ 13. She began as a Per Diem Fraud Investigator I
for the HRA’s Investigation Revenue and Enforcement Agency (“IREA”). Id. ¶ 36. Thereafter,
she received several promotions, most recently in August 2015 to the position of Administrative
Investigator, level M-1, and Managing Director of the Criminal Remedies Division (“CRD”) of
the Prosecution & Administrative Hearings Division (“PAHD”). Id. ¶¶ 33, 38, 41. She
remained in that role until her employment ended in March 2017. See id. ¶ 44.
Craven was supervised at CRD by Weiswasser, the Director of PAHD. Id. ¶ 45.
Weismasser, in turn, was supervised by Parker, a Deputy Assistant Commissioner for the IREA.

Id. ¶ 24. Craven and Parker are both African American; Weiswasser is white. Id. ¶¶ 12, 19, 25.
According the Complaint, Weiswasser engaged in “openly discriminatory behavior towards
black employees and other minorities,” including Craven, which Parker “condoned” and “failed
to address.” Id. ¶¶ 47, 108, 124. The Complaint alleges several forms of such behavior.
First, throughout Craven’s employment, Weiswasser made discriminatory comments
about minority and female employees. Id. ¶ 47. For instance, Weiswasser repeatedly described
minority employees as “surprisingly ‘articulate.’” Id. ¶¶ 48, 70. In August 2016, Weiswasser
commented that a “dark-skinned subordinate of Plaintiff was surprisingly ‘articulate and well-
spoken.’” Id. ¶ 69. Weiswasser also commented to Craven that Weiswasser had been
“reluctant” to hire a particular Administrative Investigator because “she was a woman” and that

Weiswasser “would have preferred to hire a man.” Id. ¶¶ 72, 74.

1 In particular, the Court relies on the charge Craven filed with the Equal Employment
Opportunity Commission (“EEOC”), which was submitted by Defendants in support of their
motion. See Mauro v. N.Y.C. Transit Auth., No. 09-CV-4732 (DLC), 2010 WL 1424009, at *1
n.1 (S.D.N.Y. Apr. 9, 2010) (relying on the plaintiff’s EEOC charge in identical circumstances).
60, 147. For instance, in January 2016, Weiswasser sent Craven a memorandum stating that
Craven did not display “optimism and positivity,” and directing Craven to set the “proper tone”
for her staff. Id. ¶ 61. On February 23, 2016, Weiswasser characterized Craven as “angry,” and
directed her to attend training on “positive counseling for problematic employees” or “productive
confrontation.” Id. ¶ 63. A few months later, Weiswasser again criticized Craven’s tone as
“angry” and said “there may be instances where you need to soften your tone, particularly in
interpersonal settings. . . . You have to be sensitive to your audience, the situation, and
perception.” Id. ¶ 68.
In addition, Weiswasser subjected Craven to “excessive criticism, incessant harassment

and other untoward conduct.” Id. ¶ 58. For instance, in the fall of 2014, during a discussion
about an African-American woman previously supervised by Craven, Weiswasser — who was
not yet Craven’s supervisor — said that Craven was “very black-white militant.” Id. ¶¶ 49-50,
54. When pressed, Weiswasser claimed she meant that Craven saw things “very black and
white.” Id. ¶ 51. A few months after Craven’s promotion in August 2015, when Weiswasser
was her supervisor, Weiswasser instructed her not to eat lunch with a black male employee and
to “distance herself” from him because “it doesn’t look good.” Id. ¶ 54. In December 2015,
Craven was hospitalized because of “severe emotional distress” caused by Weiswasser’s
“discriminatory actions,” “work stress,” “and other medical conditions.” Id. ¶ 59. Craven
returned to work in January 2016. Id. ¶¶ 60.

Weiswasser also increased Craven’s workload without increasing her pay. On March 28,
2016, Weiswasser added “goals” for Craven to complete during the one-year probation period
that followed her August 2015 promotion. Id. ¶¶ 46, 64. In addition, on August 29, 2016,
Weiswasser added “the managerial responsibilities and supervision of the External Affairs
increases, Weiswasser and Parker declined to raise Craven’s salary. Id. ¶¶ 121-22.
In September 2016, Craven was interviewed in connection with an internal investigation
of discrimination claims against Weiswasser by another of Weiswasser’s subordinates. Id. ¶¶ 72,
76, 83. After the interview, Weiswasser told Craven, “You know I treated [the employee]
fairly.” Id. ¶ 84. Later that month, Weiswasser added most of the former subordinate’s
responsibilities to Craven’s workload. Id. ¶¶ 85, 92. Craven still did not receive additional
salary or benefits, despite requesting them. Id. ¶¶ 86, 98. Craven also requested additional staff
to help with her responsibilities, but Weiswasser instead hired staff for other managers “who
were either white or never opposed Weiswasser’s discriminatory behavior.” Id. ¶¶ 99-100, 102.

On December 25, 2016, Weiswasser named Craven the permanent Director of PAHD/External
Affairs, adding even more to her responsibilities without any increase in salary. Id. ¶¶ 93-94.
The Complaint describes several other incidents following Craven’s interview in
September 2016. For instance, on September 28, 2016, Weiswasser “wrote in an assessment of
[Craven’s] performance” that she “came across as defensive” during a conference call on August
25, 2016. Id. ¶¶ 87-88. During a February 2017 meeting, Weiswasser explained an agency
policy by using Craven as an example of a felon affected by the policy. Id. ¶ 105. And on
February 9, 2017, Weiswasser accused Craven of being dishonest by secretly recording a
meeting. See id. ¶ 107; see also id. ¶¶ 65-67, 78-79, 103 (describing other incidents both before
and after Craven’s interview).

In January 2017, Phillip Schaffroth, Jr., a white man, transferred to PAHD and was
placed in charge of the Economic Crimes Unit (“ECU”). Id. ¶ 112. According to the Complaint,
Schaffroth was paid over ten thousand dollars more per year in base salary than Craven as of
January 2017. Id. ¶ 118. As directors of their respective units, however, Schaffroth and Craven
Medicaid and social services fraud,” id. ¶ 116; and they “attended the same routine meetings,”
id. ¶ 117. And when Schaffroth took his job as director of ECU, Craven had been working at
HRA for about two years longer than Schaffroth and had been a supervisor for nearly five years
longer. Id. ¶ 119. Schaffroth also managed fewer employees and fewer units than Craven. Id. ¶
115.
In January 2017, “Plaintiff pointed out to Weiswasser that her managerial duties were
more demanding than other . . . Directors like Debra Duguid, Twanda Hunter, Cathy Rush
Brown, and George Davis.” Id. ¶ 120. Weiswasser acknowledged that Craven’s work was more
demanding and agreed that Weiswasser would not have taken the position for so little money.

Id. ¶ 120. Two months later, on March 31, 2017, Craven left her job because her health had
deteriorated “to the point that she could no longer tolerate the discriminatory environment
created by Weiswasser and condoned by Parker.” Id. ¶ 124. On December 21, 2017, Craven
filed charges of discrimination with the EEOC, alleging discrimination from August 2015
through March 31, 2017. See id. ¶ 9; see also ECF No. 30-1, at 1. On November 14, 2018, the
EEOC issued Craven a Right to Sue Notice. Compl. ¶ 10. On February 15, 2019, Craven
commenced this lawsuit. See ECF No. 1.
LEGAL STANDARDS
In evaluating Defendants’ motion to dismiss pursuant to Rule 12(b)(6), the Court must
accept all facts set forth in the Complaint as true and draw all reasonable inferences in Craven’s

favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per
curiam). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts
sufficient “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). A plaintiff must show “more than a sheer possibility that a defendant has acted
unlawfully,” id., and cannot rely on mere “labels and conclusions” to support a claim, Twombly,
550 U.S. at 555. If the plaintiff’s pleadings “have not nudged [his or her] claims across the line
from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570. Where, as here, a
plaintiff brings claims of employment discrimination, however, “[t]he facts required by Iqbal to
be alleged in the complaint need not give plausible support to the ultimate question of whether
the adverse employment action was attributable to discrimination. They need only give plausible
support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York,

795 F.3d 297, 311 (2d Cir. 2015); see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
86-87 (2d Cir. 2015).
DISCUSSION
As noted, Craven brings claims under a variety of statutes and theories. The Court will
begin with her claims of race and sex discrimination and retaliation under Title VII, the
NYSHRL, and the NYCHRL; then turn to her race discrimination and retaliation claims under
Section 1981, brought pursuant to Section 1983; and then finish with her claims under the Equal
Pay Act.
A. Claims Under Title VII, the NYSHRL, and the NYCHRL
Craven brings two types of claims under Title VII, the NYSHRL, and the NYCHRL:

claims for race and sex discrimination and claims for retaliation.2 The Court will address each in

2 In her opposition brief, Craven makes reference to “a hostile work environment,” see
ECF No. 34 (“Pl.’s Opp’n”), at 1, 4 n.1, but she does not substantively argue that the Complaint
states a discrete claim of hostile work environment discrimination. Nor does the Complaint
explicitly reference such a claim. See Compl. ¶¶ 133-176. Thus, the Court does not construe the
1. Race and Sex Discrimination Claims
The Court begins with Craven’s race and sex discrimination claims under Title VII, the
NYSHRL, and the NYCHRL. These claims are subject to the well-known three-step burden-
shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See, e.g., Watson v. Geithner, No. 11-CV-9527 (AJN), 2013 WL 5441748, at
*4 (S.D.N.Y. Sept. 27, 2013).3 At the motion-to-dismiss stage, however, only the first step —
the plaintiff’s burden to allege a prima facie case of discrimination — is at issue. See Littlejohn,
795 F.3d at 311; McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case under all
provisions except the NYCHRL, a plaintiff must show that: (1) she was a member of a protected

class; (2) she was competent to perform the job in question, or was performing the job duties
satisfactorily; (3) she suffered a materially adverse employment action; and (4) the action
occurred under circumstances that give rise to a minimal inference of discrimination. See, e.g.,
Jeune v. City of New York, No. 11-CV-7424 (JMF), 2014 WL 83851, at *4 (S.D.N.Y. Jan. 9,
2014). The showing required for NYCHRL claims differs slightly, as the adverse action need
not be “material”; instead, a plaintiff need only demonstrate differential treatment that is “more
than trivial, insubstantial, or petty.” Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 530
(S.D.N.Y. 2015) (quoting Williams v. Regus Mgmt. Grp., LLC, 836 F. Supp. 2d 159, 173

Complaint to include a hostile work environment claim. To the extent the Complaint does
include such a claim, it is deemed abandoned. See, e.g., Kovaco v. Rockbestos-Surprenant Cable
Corp., 834 F.3d 128, 143 (2d Cir. 2016); Camarda v. Selover, 673 F. App’x 26, 30 (2d Cir.
2016) (summary order).
3 Strictly speaking, it is “unclear whether, and to what extent, the McDonnell Douglas
burden-shifting analysis has been modified for NYCHRL claims.” Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013). Nevertheless, courts in this
Circuit “typically . . . apply the liberal standards of the NYCHRL to the basic McDonnell
Douglas framework.” Jeune, 2014 WL 83851, at *4 (alterations and internal quotation marks
omitted).
inference of discrimination. Williams, 836 F. Supp. 2d at 177. Indeed, to survive a motion to
dismiss under all of the provisions at issue in this case, the facts alleged must provide “at least
minimal support for the proposition that the employer was motivated by discriminatory intent.”
Littlejohn, 795 F.3d at 311.
Applying these standards here, the Court concludes that Craven’s allegations are largely
sufficient. There is no dispute that she satisfies the first two prongs of the prima facie test. As
for the third, she plausibly alleges two adverse employment actions: that she was “paid less than
a white male” — namely, Schaffroth — and that she was given “an excessive workload.” Pl.’s
Opp’n 4; see, e.g., Butterfield-Bajinan v. City of New York, No. 16-CV-5919 (RJS), 2017 WL

4045175, at *4 (S.D.N.Y. Sept. 11, 2017) (finding allegations of unequal pay sufficient to
constitute an adverse action); Vega, 801 F.3d at 88 (“[T]he assignment of an excessive workload
as a result of discriminatory intent can be adverse employment action.” (internal quotation marks
and citations omitted)). Contrary to Defendants’ contentions, Craven’s allegations that she and
Schaffroth were “similarly situated” are sufficient to survive a motion to dismiss. See Compl. ¶¶
112-19; see also, e.g., Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (finding
substantial similarity where employees were allegedly in the same management group, reported
to the same supervisor, and were subject to the same performance evaluation and disciplinary
standards). And, as in Vega, Craven plausibly alleges an increased and excessive workload that
is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Vega,

801 F.3d at 88 (internal quotation marks omitted); see Compl. ¶¶ 92-94; cf. Forest v. N.Y. State
Office of Mental Health, 672 F. App’x 42, 45 & n.3 (2d Cir. 2016) (summary order) (holding that
extra assignments “within an employee’s job description” did not constitute adverse employment
So too, Craven satisfies her “minimal burden” of alleging facts “suggesting an inference
of discriminatory motivation” for these actions. Vega, 801 F.3d at 85 (internal quotation marks
omitted). Among other things, Craven alleges that a similarly situated white male colleague was
paid more than she was, despite having fewer responsibilities and equal or lesser credentials, and
that Weiswasser ignored Craven’s requests for additional staff despite filling other, “less
important” vacancies. See Compl. ¶¶ 99-100, 118-20. Additionally, the allegations of
Weiswasser’s discriminatory comments and conduct, “even if they do not independently
constitute adverse employment actions, provide relevant background evidence by shedding light
on Defendant[s’] motivation.” Vega, 801 F.3d at 88 (internal quotation marks omitted). Taken

together, these allegations create a “mosaic” of information supporting an inference of
discrimination. Id. at 86-87 (internal quotation marks omitted). In the face of these allegations,
and the reasonable inferences that can be drawn from them, Defendants’ arguments to the
contrary — that Craven was technically “promoted” during her employment, that any pay
differential between Craven and Schaffroth was based on the latter’s superior credentials, and
that Parker and Weiswasser were members of one or both of the protected classes to which
Craven herself belongs, see ECF No. 29 (“Defs.’ Mem.”), at 15-16 — are insufficient to warrant
dismissal at this stage.
That said, Craven’s discrimination claims do fall short to the extent they are based on a
claim of constructive discharge. Constructive discharge “occurs when an employer, rather than

4 Both of these adverse actions allegedly continued until the end of Craven’s employment,
which occurred within the 300 days preceding the filing of her charge with the EEOC.
Accordingly, Defendants contention that Craven’s Title VII claims are time barred because she
did not file a charge of discrimination with the EEOC within 300 days of the alleged unlawful
employment action, see Defs.’ Mem. 9-10, is without merit.
forces an employee to quit involuntarily.” Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185
(2d Cir. 2011). Thus, to state a claim, a plaintiff must allege not just that “[w]orking conditions
are . . . so difficult or unpleasant that a reasonable person in the employee’s shoes would have
felt compelled to resign,” id., but also that the defendant “intentionally or deliberately created
negative working conditions . . . so as to compel [the plaintiff] to resign,” Spires v. MetLife Grp.,
Inc., No. 18-CV-4464 (RA), 2019 WL 4464393, at *10 (S.D.N.Y. Sept. 18, 2019) (emphasis in
original). Here, Craven alleges only that “Defendants took all of the foregoing actions in order
to deprive Plaintiff of employment opportunities and other contractual opportunities.” Compl.
¶ 126. That does not suffice because, even if true, it does not suggest that Defendants intended

to compel Plaintiff to resign. See Dowrich-Weeks v. Cooper Square Realty, Inc., 535 F. App’x 9,
12 (2d Cir. 2013) (summary order) (“A constructive discharge cannot be proven merely by
evidence that an employee disagreed with the employer’s criticisms of the quality of [her] work,
or did not receive a raise, or preferred not to continue working for that employer.”). Thus, to the
extent that Craven’s discrimination claims are based on a theory of constructive discharge,
Defendants’ motion to dismiss is GRANTED; otherwise, the motion is DENIED.
2. Retaliation Claims
Next, the Court turns to Craven’s retaliation claims under Title VII, the NYSHRL, and
the NYCHRL. To adequately allege retaliation, a plaintiff must “give plausible support to the
reduced prima facie requirements” of “(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.” Febrianti v.
Starwood Worldwide, No. 15-CV-635 (JMF), 2016 WL 502027, at *3 (S.D.N.Y. Feb. 8, 2016).
More specifically, Craven must allege that “retaliation was a ‘but-for’ cause of the employer’s
quotation marks omitted). Measured against these standards, Craven’s allegations that she
received unequal pay and an excessive workload in retaliation for her participation in an
interview with HRA’s equal employment office are sufficient to state a claim. To be sure, the
adverse employment actions that were properly exhausted occurred about five months after
Craven’s September 2016 interview.5 But Craven alleges that the “adverse actions . . . occurred
against a backdrop of continuing antagonism” during the intervening period. Duplan, 888 F.3d
at 625; see Compl. ¶¶ 84-108; see also, e.g., Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 391 (2d
Cir. 2020) (noting that, in certain circumstances, “five months is not too long to find the causal
relationship” (internal quotation marks omitted)); Sassaman v. Gamache, 566 F.3d 307, 312 (2d

Cir. 2009) (“[A]n inference of discriminatory intent may be established by, inter alia, the
employer’s invidious comments about others in the employee’s protected group.” (internal
quotation marks and alterations omitted)). That is sufficient to survive Defendants’ motion.
B. Section 1981 Claims
Next, the Court turns to Craven’s claims under Section 1981. Craven’s Section 1981
retaliation claims based on unequal pay and excessive workload survive for the reasons
discussed above. See, e.g., Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 226 (E.D.N.Y. 2018)

5 Defendants argue that the decisions to add to Craven’s workload and deny her pay
increases were made before her interview. See ECF No. 35, at 7. But the Complaint includes
allegations that Weiswasser added to Craven’s responsibilities and denied additional requests for
a salary increase after the interview. Compl. ¶¶ 85-86, 92, 98. Moreover, Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87 (2d Cir. 2001), upon which Defendants rely in making this
argument, is inapposite because it concerned protected activity that occurred during “an
extensive period of progressive discipline,” and held that “[w]here timing is the only basis for a
claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever
engaged in any protected activity, an inference of retaliation does not arise.” 248 F.3d at 95
(internal quotation marks omitted). Here, there are no allegations that Craven was progressively
disciplined prior to her interview.
under Title VII.”). As for her Section 1981 race discrimination claims, the Supreme Court
recently clarified that, to bring such a claim, “a plaintiff must initially plead and ultimately prove
that, but for race, [she] would not have suffered the loss of a legally protected right.” Comcast
Corp. v. Nat’l Assoc. of African Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020) (rejecting “the
motivating factor test”). Craven’s unequal pay allegations are sufficient to pass that threshold, as
she alleges that she was equal to or more experienced than Schaffroth and that he is white while
she is black. By contrast, the allegations underlying Craven’s excessive workload claim do not
support an inference of but-for causation. The allegations fail, for example, to identify those to
whom Weiswasser might have assigned the work, but for Craven’s race. See, e.g., Compl. ¶ 120

(alleging that Craven’s “duties were more demanding than other BFI Directors like Debra
Duguid, Twanda Hunter, Cathy Rush Brown, and George Davis,” but failing to allege that
Weiswasser chose not to assign work to them because of their or Craven’s race). Accordingly,
Craven’s Section 1981 race discrimination claim based on excessive workload must be and is
dismissed.
Finally, Craven’s Section 1981 claims must also be dismissed to the extent that they are
brought against Parker.6 To bring claims against a state or local employee in her individual
capacity under Section 1983, a plaintiff must adequately allege that the employee was
“personally involved in the alleged deprivation.” Gonzalez v. City of New York, 377 F. Supp. 3d
273, 287 (S.D.N.Y. 2019). Personal involvement can include “being informed of the violation

through a report” and “fail[ing] to remedy the wrong,” as long as “the supervisor’s actions were

6 Craven clarifies in her opposition brief that she is not suing the City under Section 1983.
See Pl.’s Opp’n 23. Accordingly, the Court need not and does not address whether the
Complaint plausibly alleges a basis for liability under Monell v. Department of Social Services,
436 U.S. 658 (1978).
Admin., No. 16-CV-2061 (VSB), 2017 WL 4402562, at *8-9 (S.D.N.Y. Sept. 30, 2017). Here,
the Complaint adequately alleges Weiswasser’s personal involvement, as she was the one who
carried out almost all of the relevant conduct. By contrast, however, the Complaint falls short as
to Parker. The Complaint alleges only that Parker “ignored Plaintiff’s requests” for pay raises
and staff increases, Compl. ¶¶ 99, 121, and that Craven “reported” Weiswasser’s accusation that
Craven had secretly recorded a meeting and Weiswasser’s “continuing acts of discrimination” to
Parker, id. ¶ 108. Nowhere does the Complaint allege that Parker was ever informed of the
violations at issue here — namely, that Craven was being paid less than a white male colleague
for substantially equal work and that Craven was being retaliated against for participating in the

interview with the HRA’s equal employment office. Notably, Craven offers no argument to the
contrary in her opposition brief. See Pl.’s Opp’n 22-23. Accordingly, Craven’s Section 1981
claims against Parker in her individual capacity must be and are also dismissed.7
C. Claims Under the Equal Pay Act
Craven’s last set of claims are brought under the Equal Pay Act, which “prohibits

7 Defendants argue in passing that Weiswasser is entitled to qualified immunity, see Defs.’
Mem. 23-24, but there is no merit to the argument at this stage of the proceedings. Qualified
immunity “shields government officials from civil damages liability unless the official violated a
statutory or constitutional right that was clearly established at the time of the challenged
conduct.” Warburton v. John Jay Coll. of Crim. Justice of the City Univ. of N.Y., No. 14-CV-
9170 (JPO), 2016 WL 3748485, at *2 (S.D.N.Y. July 7, 2016) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)). It has “long been clearly established that individuals have the right to be
free from intentional race and gender discrimination,” Anderson v. N.Y.C., Health & Hosps.
Corp., No. 16-CV-1051 (GBD) (KHP), 2017 WL 9538862, at *15 (S.D.N.Y. Jan. 19, 2017), and
“to be free from intentional race discrimination and retaliation,” DeNigris v. N.Y.C. Health &
Hosps. Corp., 861 F. Supp. 2d 185, 196 (S.D.N.Y. 2012). Defendants argue that “[n]o
reasonable official could possibly have concluded that promoting an employee and then
requiring more and a higher level of work, together with mild reprimand and suggestions would
somehow violate an employee’s Constitutional rights.” Defs.’ Mem. 24. But that is not a fair
characterization of the allegations in the Complaint, which, at this stage, must be taken as true
and viewed in the light most favorable to Craven.
employees of the opposite sex for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under similar working conditions.”
Kairam v. West Side GI, LLC, 793 F. App’x 23, 25 (2d Cir. 2019) (summary order) (internal
quotation marks omitted). “Thus, to prove a violation of the EPA, a plaintiff must demonstrate
that (1) the employer pays different wages to employees of the opposite sex; (2) the employees
perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are
performed under similar working conditions.” E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d
247, 254-55 (2d Cir. 2014) (internal quotation marks and alterations omitted). Measured against
these standards, Craven’s allegations that she was paid less than Schaffroth, a male employee,

was paid and that her responsibilities were similar, if not greater, than his are sufficient to state
an Equal Pay Act claim. See, e.g., Isbell v. City of New York, 316 F. Supp. 3d 571, 589
(S.D.N.Y. 2018) (holding that identification of a single comparator suffices at the pleading
stage).
But Craven’s claim of retaliation in violation of the Equal Pay Act falls short. To
premise a retaliation claim on an oral complaint to her employer, a plaintiff must allege that her
complaint was “made with a ‘degree of formality’ and that its content and context provide ‘fair
notice that a grievance has been lodged and does, or should, reasonably understand the matter as
part of [the employer’s] business concerns.’” Lenzi v. Systemax, Inc., No. 14-CV-7509 (SJF),
2015 WL 6507842, at *5 (E.D.N.Y. Oct. 26, 2015) (quoting Kasten v. Saint-Gobain

Performance Plastics Corp., 563 U.S. 1, 14 (2011)). Here, the Complaint fails to plausibly
allege that Craven sufficiently notified Defendants that she was complaining of conduct that
violated the Equal Pay Act before any of Defendants’ alleged acts of retaliation. Craven
repeatedly alleges that she made “requests for a merit increase” to both Weiswasser and Parker,
demanding than other BFI Directors” in January 2017. Id. ¶ 120. But the “BFI Directors” that
Craven referenced included both men and women, and Craven notably did not mention
Schaffroth, the only comparator identified in the Complaint. Compl. ¶ 120. Accordingly, “there
is no indication that [she was] actually complaining of conduct that plausibly rises to an Equal
Pay Act violation.” Kent-Friedman v. N.Y. State Ins. Fund, No. 18-CV-4422 (VM), 2018 WL
6547053, at *2 (S.D.N.Y. Nov. 16, 2018) (internal quotation marks omitted). Thus, Craven’s
retaliation claim under the Equal Pay Act must be and is dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. In particular, the motion is granted as to Craven’s claims for discrimination
and retaliation under Title VII, the NYSHRL, and the NYCHRL based on constructive
discharge; discrimination under Section 1981 based on excessive workload and constructive
discharge; discrimination and retaliation under Section 1981 against Parker; and retaliation under
the EPA. The motion is denied as to Craven’s claims for discrimination and retaliation under
Title VII, the NYSHRL, and the NYCHRL based on unequal pay and excessive workload;
discrimination under Section 1981 based on unequal pay against Weiswasser; retaliation under
Section 1981 based on unequal pay and excessive workload against Weiswasser; and unequal
pay under the EPA.
As to the dismissed claims, the Court declines to grant Craven leave to amend sua sponte.

Craven has neither sought leave to amend nor suggested that she possesses any additional facts
that could cure the defects in her dismissed claims. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); Fischman v. Mitsubishi Chem. Holdings Am., Inc., No. 18-CV-8188 (JMF),
2019 WL 3034866, at *7 (S.D.N.Y. July 11, 2019) (declining to grant leave to amend as to
certain claims in the absence of any suggestion that additional facts could remedy defects in the
plaintiff's pleading). Furthermore, Craven was on notice of Defendants’ arguments when she
filed the Complaint in response to Defendants’ original motion to dismiss, and Craven was
expressly warned that she would “not be given any further opportunity” to amend the Complaint.
See ECF Nos. 21, 24, 25. In light of these circumstances, the Court will not sua sponte grant
leave to amend. See, e.g., Overby v. Fabian, No. 17-CV-3377 (CS), 2018 WL 3364392, at *14
(S.D.N.Y. July 10, 2018) (“Plaintiff's failure to fix deficiencies in his previous pleading, after
being provided ample notice of them, is alone sufficient ground to deny leave to amend sua
sponte.”); see also Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898 F.3d 243, 257-
58 (2d Cir. 2018) (“When a plaintiff was aware of the deficiencies in his complaint when he first
amended, he clearly has no right to a second amendment even if the proposed second amended
complaint in fact cures the defects of the first.” (alteration and internal quotation marks
omitted)).
Unless and until the Court orders otherwise, Defendants shall file their answer to the
remaining claims within three weeks of the date of this Opinion and Order. In addition, the
initial pretrial conference is reinstated and ADJOURNED to July 1, 2020, at 3:15 p.m. The
conference will be governed by the Court’s Order of February 25, 2019, and the parties should
prepare accordingly, including by submitting a joint status letter and proposed case management
plan no later than the Thursday prior to that conference. See ECF No. 9, at 2-3.
The Clerk of Court is directed to terminate ECF No. 28.
SO ORDERED.

Dated: May 28, 2020 c h. Z
New York, New York SSE RMAN
nited States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10323220. Public record. Not legal advice.