Rubert v. King

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOSE LUIS RUBERT,

Plaintiff,

No. 19-CV-2781 (KMK)

v.

OPINION & ORDER

DANIEL KING, et al.,

Defendants.

Appearances:

Jose L. Rubert

Goshen, NY

Pro se Plaintiff

Christine L. Hogan, Esq.

Emily C. Haigh, Esq.

Littler Mendelson, P.C.

New York, NY

Counsel for Defendant Walmart, Inc.

KENNETH M. KARAS, United States District Judge:

Pro se Plaintiff Jose Luis Rubert (“Plaintiff”) brings this Action, pursuant to 42 U.S.C.

§ 1981, Title VII, and New York State Human Rights Law (“NYSHRL”), against Walmart, Inc.

(“Walmart”), Walmart security guard Daniel King (“King”), Walmart store manager “Carry,”

and Walmart assistant manager “Sam,” (collectively, “Defendants”), alleging that Defendants

discriminated and retaliated against him because of his race and national origin. (See Amended

Complaint (“Am. Compl.”) (Dkt. No. 6).) Before the Court is Walmart’s Motion To Dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 27).) For the

following reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts, drawn from Plaintiff’s Amended Complaint, are taken as true for the

purpose of resolving the instant Motion.1

During the relevant period, Plaintiff, who is Puerto Rican and of Hispanic heritage, was

an employee of Walmart at a store location in Monticello, NY. (Am. Compl. 3.)2 King, who is

white, worked at the same Walmart store as a “security guard supervisor.” (Id. at 8, 11.) From

March 2016 through February 2017, King sent numerous text messages to Plaintiff’s wife,

falsely claiming that Plaintiff was having an affair with two Walmart employees. (Id. at 5.)

King’s conduct eventually “destroyed [Plaintiff’s] marriage and forced [Plaintiff] to move out of

[his] home.” (Id. at 8.) Plaintiff first discovered that King was sending these text messages in

June 2017. (Id.) Plaintiff then “tried to have a discussion” with King about King’s conduct; but,

in response, King “initiated a campaign against [Plaintiff] at work.” (Id.) In particular, King

1 Where appropriate, the Court also considers factual allegations contained in Plaintiff’s

opposition papers to the extent that those allegations are consistent with the Amended

Complaint. See Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y.

Aug. 2, 2013) (“[W]here a pro se plaintiff is faced with a motion to dismiss, a court may

consider materials outside the complaint to the extent that they are consistent with the allegations

in the complaint.” (citation, italics, and quotation marks omitted)); Gadson v. Goord, No. 96-

CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997) (“[T]he mandate to read the

papers of pro se litigants generously makes it appropriate to consider [a] plaintiff’s additional

materials, such as his opposition memorandum.” (citations omitted)). The Court also considers

official documents, including Plaintiff’s arrest and conviction records. See United States v.

Marsalis, 314 F. Supp. 3d 462, 464 n.2 (E.D.N.Y. 2018) (“The [c]ourt takes judicial notice of

[the d]efendant’s prior convictions.”); 2002 Lawrence R. Buchalter Alaska Tr. v. Philadelphia

Fin. Life Assurance Co., 96 F. Supp. 3d 182, 206 (S.D.N.Y. 2015) (explaining that a court may

take “judicial notice of documents in the public record at the [m]otion [t]o [d]ismiss stage . . . to

establish their existence and legal effect, or to determine what statements they contained”).

2 Because Plaintiff’s Amended Complaint is not paginated consistently, the Court cites to

the page number contained in the ECF stamp. Quotations from the Amended Complaint also

reflect minor corrections to spelling, grammar, and punctuation.

told Plaintiff’s coworkers that Plaintiff was a “drug addict,” and called him names, including,

“junkie,” “spic,” “lowlife,” and “other expletives.” (Id.) King also used “his position as a

security guard” to “harass[]” and “stalk[]” Plaintiff, “watching [Plaintiff] through the cameras,

sending [him] text messages and basically tormenting [him].” (Id. at 9.)

In July 2017, Plaintiff brought a copy of a text message exchange in which King called

Plaintiff a “spic” to his store manager, Sam, and told Sam that he found King’s message racist

and humiliating. (Id. at 10.) In reply, Sam “laughed and told [Plaintiff] not to take Daniel King

seriously,” but said he would speak with King. (Id.) However, King’s behavior simply

“intensified.” (Id.) Plaintiff therefore spoke to Carry, a Walmart assistant manager as well. (Id.)

Carry responded that she “didn’t know that the word ‘spic’ was racist against Hispanics”

(although she acknowledged knowing that the word “wetback” was a racial epithet). (Id.)

Thereafter, King’s behavior “got worse” as was subsequently witnessed by several additional

coworkers. (Id.)

On August 2, 2017, Plaintiff engaged in a “confrontation [with King] in a Walmart

parking lot after [] King made reference [to Plaintiff’s] daughters, ages 7 and 11 at the time,

going to [King’s] house.” (Id. at 11; see also Decl. of Emily Haigh, Esq. in Supp. of Mot.

(“Haigh Decl.”) Ex. B (“Arrest Report”) (Dkt. 29-2).) Police arrived at the scene, and arrested

Plaintiff on several charges, including assault, and reported that Plaintiff had cut King’s arm.

(See generally Arrest Report.) The altercation and arrest led to Plaintiff’s termination by

Walmart and his conviction in Sullivan County Court. (See Am. Compl. 11; see also Haigh

Decl. Ex. A (“Certificate of Conviction”) (Dkt. 29-1).)

Plaintiff now seeks $7,000,000 in damages relating to the loss of his job, wages, and

marriage, as well as violations of company policy, and the discrimination, retaliation, and

harassment he alleges he endured. (Am. Compl. 6.) Plaintiff acknowledges that he did not file a

discrimination charge with the EEOC or any other government agency, but explains that this was

because he “did not know about such organization (EEOC),” and because he tried to resolve the

issue with Walmart management. (Id.)

B. Procedural Background

On March 26, 2019, Plaintiff filed his initial Complaint and an Application to proceed in

forma pauperis (“IFP”). (See Dkt. Nos. 1–2.) On April 9, 2019, IFP status was granted. (See

Dkt. No. 4.) On April 30, 2019, Chief Judge McMahon ordered Plaintiff to amend his

Complaint, noting that Plaintiff’s initial Complaint did not adequately allege that Walmart was

aware of a racial dimension to Plaintiff’s dispute with King. (See Dkt. No. 5.) On June 19,

2019, Plaintiff filed his Amended Complaint. (See Am. Compl.) On July 25, 2019, the Court

issued an Order of Service as to Walmart and King, and directed Walmart to ascertain the

identities of “Sam, the Store Manager” and “Carry, the Assistant Manager” and provide the

information to Plaintiff. (See Order of Service (Dkt. No. 9).) The Order of Service further

specified that, within 30 days of receiving the information from Walmart, Plaintiff should amend

his complaint to properly name Sam and Carry. (See id.) On September 30, 2019, the U.S.

Marshals Service served copies of the Summons and Complaint on Walmart, and believing that

they had thereby served King as well, reported that service was executed as to both. (See Dkt.

Nos. 17–18.) On October 4, 2019, Counsel for Walmart entered an appearance on behalf of

Walmart only. (See Dkt. Nos. 13–14.)

On November 1, 2019, Walmart provided the requested information and filed a letter-

motion requesting permission to file a motion to dismiss. (See Dkt. Nos. 19–20.) On November

18, 2019, Plaintiff filed a letter opposing Walmart’s request. (See Dkt. No. 23.) On November

20, 2019, the Court reminded Plaintiff that, pursuant to the Court’s Order of Service, he must file

an amended complaint identifying “Sam” and “Carry” by December 1, 2019. (See Dkt. No. 24.)

The Court also set a briefing schedule for Walmart’s proposed motion. (See id.) Plaintiff did

not, however, file a second amended complaint. (See Dkt.)

On January 17, 2020, Walmart filed the instant Motion and accompanying papers. (See

Not. of Mot.; Mem. of Law in Supp. of Mot. (“Def.’s Mem.”) (Dkt. No. 28); Haigh Decl.) On

February 26, 2020, Plaintiff filed his Opposition. (See Pl.’s Mem. of Law in Opp’n to Mot.

(“Pl.’s Mem.”) (Dkt. No. 33); Pl.’s Decl. in Opp’n to Mot. (“Pl.’s Decl.”) (Dkt. No. 34).) On

March 17, 2020, Walmart filed its Reply. (See Def.’s Reply Mem. of Law in Further Supp. of

Mot. (“Def.’s Reply”) (Dkt. No. 37).) On May 29, 2020, Plaintiff filed a Sur-Reply. (See “Pl.’s

Reply Mem.” (Dkt. No. 39).) On June 9, 2020, Walmart filed a letter noting that Plaintiff’s Sur-

Reply was impermissible. (See Dkt. No. 40.)3 On July 14, 2020, at the request of the Court,

Walmart filed a letter explaining why the purported service on King was insufficient, and

clarifying that Counsel for Walmart represented only Walmart and not King. (See Dkt. No. 41.)

II. Discussion

A. Standard of Review

The Supreme Court has held that although a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure

3 The Court notes that Plaintiff is proceeding pro se against one of the world’s largest

corporations. The Court will consider Plaintiff’s Sur-Reply.

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it

tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation

marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been

stated adequately, it may be supported by showing any set of facts consistent with the allegations

in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to

relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims

across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also

Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief

will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. But where the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” (citation omitted) (second alteration in

original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous

departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the

doors of discovery for a plaintiff armed with nothing more than conclusions.”).

In considering Defendant’s Motion, the Court is required to “accept as true all of the

factual allegations contained in the [Amended Complaint].” Erickson v. Pardus, 551 U.S. 89, 94

(2007); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court must

“draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992

F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145

(2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must “construe[] [his

complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].”

Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted).

However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from

compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp.

2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County,

517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves

regarding procedural rules and to comply with them.” (italics and quotation marks omitted)).

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial notice

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation

marks omitted). However, when the complaint is drafted by a pro se plaintiff, the Court may

consider “materials outside the complaint to the extent that they are consistent with the

allegations in the complaint,” Alsaifullah, 2013 WL 3972514, at *4 n.3 (quotation marks

omitted), including “documents that a pro se litigant attaches to his opposition papers,” Agu v.

Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted),

statements by the plaintiff “submitted in response to [a] defendant’s request for a pre-motion

conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2

(E.D.N.Y. Sept. 19, 2013), and “documents either in [the] plaintiff[’]s possession or of which

[the] plaintiff[] had knowledge and relied on in bringing suit,” Chambers v. Time Warner, Inc.,

282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted).

B. Analysis

Walmart argues that Plaintiff’s Title VII claims are time-barred; that Plaintiff has failed

to state a plausible claim of discrimination or retaliation under § 1981 or the NYSHRL; that

Plaintiff does not allege conduct that is sufficiently severe or pervasive to support hostile work

environment claims; and that as Plaintiff’s pleading issues are substantive, dismissal should be

with prejudice. (See generally Def.’s Mem.) The Court addresses these arguments only to the

extent necessary to decide the instant Motion.

1. Title VII Claims

It is well established that a Title VII plaintiff “may bring suit in federal court only if she

has filed a timely complaint with the EEOC and obtained a right-to-sue letter.” Holmes v. YMCA

of Yonkers, Inc., No. 19-CV-620, 2020 WL 85389, at *2 (S.D.N.Y. Jan. 7, 2020) (citing Legnani

v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per curiam)). “[I]n

states such as New York that have an agency with the authority to address charges of

discriminatory employment practices, the statute of limitations for filing a charge of

discrimination with the Equal Employment Opportunity Commission is 300 days.” Ragone v.

Atl. Video at Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010) (alteration, citation and quotation

marks omitted). The administrative exhaustion requirement applies to pro se and counseled

plaintiffs alike. See Pikulin v. City Univ. of N.Y., 176 F.3d 598, 599–600 (2d Cir. 1999) (per

curiam) (explaining that pro se plaintiffs’ “complete failure to file a complaint with the EEOC,

and their insistence that they are not required to file such, bar consideration of their Title VII

claim”). However, “the exhaustion requirement, while weighty, is not jurisdictional.” Boos v.

Runyon, 201 F.3d 178, 182 (2d Cir. 2000). It is a “requirement that, like a statute of limitations,

is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 393 (1982); see also Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir. 2006) (“Because

[the] failure to exhaust [one’s] administrative remedies is not a jurisdictional defect, it is subject

to equitable defenses.”). Failure to file a charge with the EEOC thus constitutes an “affirmative

defense to claims under [Title VII].” Rodriguez v. N.Y.C. Dep’t of Transp., No. 11-CV-3056,

2012 WL 4447101, at *2 (E.D.N.Y. Sept. 25, 2012). Nevertheless, “if non[-]exhaustion is clear

from the face of the complaint (and incorporated documents), a motion to dismiss pursuant to

Rule 12(b)(6) for failure to exhaust should be granted.” Gomez v. N.Y.C. Police Dep’t, 191 F.

Supp. 3d 293, 299 (S.D.N.Y. 2016) (citations and quotation marks omitted); see also Arnold v.

Research Found. for State Univ. of N.Y., 216 F. Supp. 3d 275, 286–87 (E.D.N.Y. 2016)

(“Although a plaintiff is not required to explicitly plead or demonstrate exhaustion at the

pleading stage, a court should nonetheless grant a motion to dismiss pursuant to 12(b)(6) for

failure to exhaust if it is clear from the face of the complaint that a plaintiff has not exhausted

their remedies.” (citation and quotation marks omitted)).

Here, Plaintiff's Title VII claims—that Walmart discriminated against him based on his

race and national origin—rely solely on conduct that occurred in 2016 and 2017. (See Am.

Compl. 5–8.) Indeed, the last possible date that any such conduct could have occurred was the

day on which Plaintiff was terminated, sometime in 2017. (See id. at 10–11; see also Pl.’s Reply

Mem. ¶ 3.) However, Plaintiff acknowledges that he never filed a discrimination charge with

any government agency, either within 300 days of his termination or at any point thereafter. (See

Am. Compl. 3.) The 300-day statutory deadline had thus clearly run by the time Plaintiff filed

his initial Complaint on April 1, 2019. (See Dkt. Nos. 1–2.) Plaintiff has, therefore, failed to

exhaust his administrative remedies.

To the extent Plaintiff argues that his ignorance of the EEOC entitles him to equitable

tolling of this deadline, his argument is unavailing. “Equitable tolling of the 300-day statutory

deadline is only appropriate in rare and exceptional circumstances in which a party is prevented

in some extraordinary way from exercising his rights.” Zerilli-Edelglass v. N.Y.C. Transit Auth.,

333 F.3d 74, 80 (2d Cir. 2003) (citation and quotation marks omitted). Thus, when determining

whether equitable tolling is applicable, a district court must consider whether the plaintiff (1) has

“acted with reasonable diligence during the time period she seeks to have tolled, and (2) has

proved that the circumstances are so extraordinary that the doctrine should apply.” Id. (citation

and quotation marks omitted). Moreover, courts in the Second Circuit have repeatedly explained

that mere ignorance of exhaustion requirements is not adequate grounds for applying equitable

tolling. See Francis v. Blaikie Grp., 372 F. Supp. 2d 741, 748 (S.D.N.Y. 2005) (explaining that

the plaintiff’s “ignorance of her ability to file a charge with the EEOC” was not “a sufficient

basis for tolling the limitation period”); see also Rudaj v. Treanor, 522 F. App’x 76, 77 (2d Cir.

2013) (“[N]either [the plaintiff’s] pro se status nor his professed ignorance of the law

demonstrate “rare and exceptional circumstance[s] warranting equitable tolling.” (citation and

quotation marks omitted)); Woods v. Unum Life Ins. Co. of Am., No. 09-CV-809, 2011 WL

166205, at *5 (D. Conn. Jan. 19, 2011) (explaining, in the context of ERISA claims, that “a

claimant ignorant of the exhaustion requirement is not relieved of the requirement”); Jowers v.

Lakeside Family & Children's Servs., 435 F. Supp. 2d 280, 284 (S.D.N.Y. 2006) (explaining that

a plaintiff’s ignorance of the discriminatory nature of his termination did not justify equitable

tolling); accord Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) (“Mistakes of law or

ignorance of proper legal procedures are not extraordinary circumstances warranting invocation

of the doctrine of equitable tolling.”). Accordingly, Plaintiff’s simple assertion that he “did not

file with the EEOC because [he] did not know about” the EEOC, (Am. Compl. 6), is insufficient

to establish a sufficient basis for equitable tolling. See Dezaio v. Port Auth. of NY & NJ, 205

F.3d 62, 64–65 (2d Cir. 2000) (explaining that exhaustion requirements “trip[] up laypersons and

lawyers alike,” but that “ignorance of the law excuses no one; not because courts assume

everyone knows the law, but because this excuse is one all will plead and no one can refute”).

Similarly, to the extent Plaintiff argues that he is entitled to equitable tolling because

Walmart misled him into refraining from pursuing administrative remedies, that argument fails

as well. To be sure, extraordinary circumstances may sometimes be present when “an adversary

‘induced or tricked’ the plaintiff into filing after a deadline passed, . . . [or] affirmative

misconduct by the defendant ‘lulled [the] plaintiff into inaction.’” Jiles v. Rochester Genesee

Reg'l Transp. Auth., 217 F. Supp. 3d 688, 691 (W.D.N.Y. 2016) (quoting South v. Saab Cars

USA, Inc., 28 F.3d 9, 11–12 (2d Cir. 1994)); see also Zhou v. Wu, No. 14-CV-1775, 2017 WL

1233994, at *3 (S.D.N.Y. Mar. 31, 2017) (“Federal courts have typically extended equitable

relief only sparingly in suits against private litigants, allowing tolling where the claimant has

actively pursued his judicial remedies by filing a defective pleading or where he has been

induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.”

(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96–97 (1990))). However, to invoke a

defendant’s misconduct as a basis for equitable tolling or estoppel, “a plaintiff must show that he

brought his action within a reasonable time after the facts giving rise to the estoppel have ceased

to be operational.” Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1494 (2d Cir. 1995) (citing

Overall v. Estate of Klotz, 52 F.3d 398, 404 (2d Cir. 1995) (quotation marks omitted)); see also

Harper v. Ercole, 648 F.3d 132, 136 (2d Cir. 2011) (explaining that a statute of limitations is

suspended only “for the duration of the extraordinary circumstances supporting tolling,” after

which the statute of limitations continues to run).

Here, Plaintiff alleges that Walmart informed him that he had to “exhaust [his] remedies

through Walmart management first,” and that “management [then] failed to act.” (Am. Compl.

6.) The Court need not decide whether such an alleged statement by Walmart suffices in theory

to justify equitable tolling, because Plaintiff continued his failures long after—indeed, for well

more than 300 days after—he ended his employment with Walmart. “Once the circumstances

inducing reliance are exposed, the plaintiff’s obligation to timely file is reimposed.” Buttry, 68

F.3d at 1491 (citation omitted). Thus, “even if [Plaintiff] relied on a misrepresentation made to

[him] by [Defendant], [Plaintiff] had to bring h[is] action within a reasonable time after [his

termination]. This []he did not do.” Id. Plaintiff’s tardiness in pursuing remedies following his

termination “amounted to no more than excusable neglect undeserving of equitable tolling.”

Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566, 579 (E.D.N.Y. 2011) (citation omitted).

Plaintiff’s Title VII claims must therefore be dismissed.

2. Section 1981 Claims

Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall

have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . .”

42 U.S.C. § 1981(a). Section 1981 thus prohibits racial discrimination “with respect to the

enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as

employment.” Calvelos v. City of New York, No. 19-CV-6629, 2020 WL 3414886, *9 (S.D.N.Y.

June 22, 2020) (citation omitted).4 Accordingly, as with Title VII and § 1983 claims, a § 1981

4 Unlike Title VII, the statute of limitations for claims brought under § 1981 is four years.

See Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 209 (E.D.N.Y. 2014). Plaintiff’s

plaintiff may allege that discrimination occurred in the form of discrete adverse employment

actions, as well as by means of conduct creating a “hostile work environment.” See Patterson v.

County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (discussing the similarities and differences

between Title VII, § 1981, and § 1983). Although § 1981 does not itself “specifically authorize[]

private lawsuits to enforce” its prohibitions, the Supreme Court has “created a judicially implied

private right of action.” Comcast Corp. v. Nat'l Ass’n of African Am.-Owned Media, 140 S. Ct.

1009, 1015 (2020).

Generally, “[p]ersonal liability under section 1981 must be predicated on the actor’s

personal involvement.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68, 75 (2d.

Cir. 2000); see also Patterson, 375 F.3d at 206 (same). Relatedly, a plaintiff may pursue § 1981

claims only where the defendants acted “with discriminatory intent.” See Gen. Bldg.

Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982) (explaining that “§ 1981

reaches only purposeful discrimination”); Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 68

(2d Cir. 2015). And as the Supreme Court has recently clarified, “[t]o prevail, a [§ 1981]

plaintiff must initially plead and ultimately prove that, but for race, [he] would not have suffered

loss of his legally protected rights.” Comcast Corp., 140 S. Ct. at 1019. In other words, a

successful § 1981 plaintiff must plausibly allege that the defendant’s discriminatory intent was a

“but-for” cause of an actionable adverse employment action or hostile environment. Id.

In the Second Circuit, § 1981 claims are generally “assessed using the burden-shifting

framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).” Bowen-Hooks, 13 F. Supp. 3d at 209. Thus, a plaintiff bringing a discrimination

claims of discrimination accrued between 2016 and 2017, for which the statute of limitations had

not yet run when Plaintiff filed his initial Complaint on March 26, 2019.

claim must plausibly allege that: “(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 and quotation

marks omitted). Under the same framework, a plaintiff bringing a retaliation claim must

establish that (1) he “participat[ed] in a protected activity”; (2) the defendant “kn[ew] of the

protected activity”; (3) he suffered an “adverse employment action”; and (4) the existence of a

“causal connection between the protected activity and the adverse employment action.” See

Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013) (citation and quotation marks

omitted).

a. Discrimination Based on Discrete Adverse Employment Actions

Here, Plaintiff has alleged that his termination is the actionable adverse employment

action. Indeed, termination does qualify as an adverse employment action. See Mathirampuzha

v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (“To be materially adverse, a change in working

conditions must be more disruptive than a mere inconvenience or an alteration of job

responsibilities. Examples of such a change include 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.” (citation omitted)); Opoku v. Brega, No. 15-CV-2213, 2016 WL 5720807, at *7

(S.D.N.Y. Sept. 30, 2016) (explaining that termination is a “quintessential materially adverse

employment action,” but that “excessive scrutiny, criticism, and negative evaluations . . . are

not . . . unless such conduct is accompanied by negative consequences, such as demotion,

diminution of wages, or other tangible loss” (quotation marks and citations omitted)). However,

Plaintiff fails to provide non-conclusory allegations that plausibly suggest that his race, national

origin, or a relevant protected activity, was a “but-for” cause of his termination. Indeed, Plaintiff

can point to no racially discriminatory statements or conduct by his Walmart supervisors, or

anyone conceivably involved in the decision to fire him. (See generally Am. Compl.)5 Rather,

Plaintiff simply (and conclusorily) alleges that he was “fired because defendants saw him as

another expendable Hispanic,” and that “Walmart has a history of discrimination and illegal

conduct.” (Pl.’s Reply Mem. ¶ 6.) These are “boilerplate assertion[s]” unsupported by specific

facts. Lopes v. Westchester County, No. 18-CV-8205, 2020 WL 1445729, at *5 (S.D.N.Y Mar.

25, 2020) (citation and quotation marks omitted).

Further, Plaintiff’s conclusory assertion regarding the reason for his firing is contradicted

by Plaintiff’s own pleadings. Indeed, Plaintiff acknowledges that it was his confrontation with

King in the Walmart parking lot—and thus, his subsequent arrest and conviction—that directly

led to his termination. (See Am. Compl. 11 (explaining this his “confrontation in [the] Walmart

parking lot . . . led me to get fired”).) Such an altercation, and surely Plaintiff’s related arrest and

conviction, amount to “legitimate, nondiscriminatory” reasons for his discharge. See Smith v.

N.Y. & Presbyterian Hosp., 440 F. Supp. 3d 303, 335 (S.D.N.Y. 2020) (explaining that an

employee’s “disruptive behavior in the workplace” constitutes a legitimate, non-discriminatory

reason for adverse actions); Welland v. Citigroup, Inc., No. 00-CV-738, 2003 WL 22973574 at

*6 (S.D.N.Y. Dec. 17, 2003) (“Discharging an employee for violating company policy

5 While Plaintiff suggests that King “had authority over” him because King was a

“security guard supervisor,” (Am. Compl. 6), the allegation is conclusory. Indeed, Plaintiff does

not allege that he himself was a security guard, and rather asserts that he worked in “electronics.”

(See Pl.’s Mem. ¶ 7.) In any event, whatever kind of “authority” Plaintiff refers to here cannot

be reasonably interpreted as suggesting that King (a security guard) would be involved in the

decision to fire Plaintiff (a member of the “electronics” staff).

constitutes a legitimate nondiscriminatory reason for terminating employment.” (citations

omitted)), aff’d, 116 F. App’x 321 (2d Cir. 2004). Plaintiff’s own allegation therefore suggests

that his termination did not occur “under circumstances giving rise to an inference of

discriminatory intent.” Brown, 673 F.3d at 150. Rather, Plaintiff’s own pleadings (and matters

of which the Court may take judicial notice) suggest that he was fired based on a violent

altercation, arrest, and conviction. Plaintiff has therefore failed to allege circumstances

suggesting “a causal connection between the alleged adverse employment action and [his] race.”

Edwards v. Thomson Reuters (Tax & Accounting) Inc., No. 19-CV-93, 2020 WL 2132348, at *4

(S.D.N.Y. May 5, 2020).

Moreover, Plaintiff’s allegations are particularly self-defeating in light of the Supreme

Court’s recent decision establishing “but-for” causation as a necessary element of § 1981 suits.

See Comcast, 140 S. Ct. at 1019. In light of this requirement, Plaintiff’s affirmative

acknowledgement of sufficient, non-discriminatory reasons for his termination is determinative.

As the Second Circuit has recently explained, where “but-for” causation is required, a plaintiff

“must establish that the employer’s stated non-discriminatory reason is either false or inadequate

to support the adverse employment action.” Naumovski v. Norris, 934 F.3d 200, 215 (2d Cir.

2019). Plaintiff’s express acknowledgement, apparent from the face of his Amended Complaint,

that the altercation (a sufficient, non-discriminatory reason) led to his termination is thus fatal to

his claims, even at the pleading stage. See Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 222

(E.D.N.Y. 2018) (dismissing a plaintiff’s retaliation claims because materials integral to her

complaint “undercut but-for causation,” and explaining that the plaintiff thus “failed to

successfully plead that ‘but for’ the [p]laintiff’s complaints of gender, race, and national origin

discrimination, the [d]efendants would not have terminated [the plaintiff]”); see also Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (explaining that a plaintiff

pursuing Title VII retaliation claims “must plausibly allege that the retaliation was a ‘but-for’

cause of the employer’s adverse action” (citation omitted)); Langella v. Mahopac Cent. Sch.

Dist., No. 18-CV-10023, 2020 WL 2836760, at *11 (S.D.N.Y. May 31, 2020) (dismissing ADA

claims for failing to plausibly allege that disability was the “but-for” cause of an adverse

employment decision).6

To the extent that Plaintiff argues that Walmart’s differential treatment of himself and

King—a white employee—reflects racially discriminatory treatment, (see Pl.’s Mem ¶¶ 4–5),

this argument also fails. To show disparate treatment, “the individuals with whom [the plaintiff]

attempts to compare herself must be similarly situated in all material respects.” See Bush v.

Fordham Univ., 452 F. Supp. 2d 394, 410 (S.D.N.Y. 2006) (quoting Graham v. Long Island

R.R., 230 F.3d 34, 39 (2d Cir. 2000)); see also O’Neal v. State Univ. of N.Y., No. 01-CV-7802,

2006 WL 3246935, at *11 (E.D.N.Y. Nov. 8, 2006) (holding that the focus should be on

“employees that have similar qualifications, display similar disciplinary records[,] or committed

similar insubordinate acts”). Here, Plaintiff and King were decidedly not similarly situated.

First, as Plaintiff acknowledges, he and King held different jobs, with Plaintiff working in

electronics and King working as a security guard. (See Am. Compl. 8; Pl.’s Mem. ¶ 7.) Second,

6 To be clear, a plaintiff has no “obligation to anticipate and disprove, in [his] prima facie

case, the employer’s proffer of a legitimate, non-discriminatory basis for its decision.” Tyson v.

Town of Ramapo, No. 17-CV-4990, 2019 WL 1331913, at *12 (S.D.N.Y. Mar. 25, 2019)

(quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001)). However,

where sufficient non-discriminatory reasons are apparent from the face of the complaint, they

may undermine the “causation” element of a plaintiff’s prima facie case, particularly where “but-

for” causation is required. See Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018)

(“To adequately plead causation, the plaintiff must plausibly allege that the retaliation [or

discriminatory intent] was a ‘but-for’ cause of the employer’s adverse action.” (citation and

quotation marks omitted)); Amaya, 295 F. Supp. 3d at 222 (dismissing a plaintiff’s retaliation

claims because materials integral to the complaint “undercut but-for causation”).

and more importantly, while the August 2, 2017 confrontation led to Plaintiff’s arrest and

conviction, (see Arrest Record; Certificate of Conviction), Plaintiff has alleged nothing remotely

similar with respect to King. An employee who has been arrested for and convicted of assault on

or near the workplace premises is not similarly situated to an employee who was not arrested or

convicted for assault. See Williams v. Metro-North R.R., No. 17-CV-3092, 2020 WL 1489832,

at *9 (S.D.N.Y. Mar. 27, 2020) (explaining that a “substantial difference between [the p]laintiff’s

and [a coworker’s] disciplinary histories . . . undermines any attempt to use [the coworker] as a

similarly situated comparator” (quotation marks omitted)); Whittle v. County of Sullivan, No. 16-

CV-725, 2017 WL 5197154, at *7 (S.D.N.Y. Nov. 8, 2017) (rejecting comparator analysis where

the plaintiff failed to plead, inter alia, how supposed comparators’ “disciplinary histories

compared to his”); see also Jenkins v. N.Y.C. Transit Auth., 201 F. App’x 44, 46 (2d Cir. 2006)

(dismissing a § 1981 claim because “no similarly situated white employee received more

favorable treatment”); Colon v. Fashion Inst. of Tech., 983 F. Supp. 2d 277, 289 (S.D.N.Y. 2013)

(explaining that a plaintiff’s “co-workers with whom she compares herself were not similarly

situated, and therefore were not adequate comparators to show disparate treatment”).

Accordingly, Walmart’s differential treatment of Plaintiff and King cannot sustain a claim for

racial discrimination.7

7 Insofar as Plaintiff pursues claims for retaliation, such claims are rejected for the same

reasons already identified. Plaintiff fails to allege that Walmart had or expressed any retaliatory

animus toward Plaintiff. Further, Plaintiff acknowledges that Walmart’s stated reason for his

termination—his confrontation with King that led to Plaintiff’s arrest and conviction—is true,

and, as a matter of law, that reason is clearly adequate for Plaintiff’s termination. Thus, Plaintiff

cannot adequately plead that any protected activity is a cause, much less a “but-for” cause, of his

termination. See Colon, 983 F. Supp. 2d at 290 (dismissing a § 1981 retaliation claim where the

plaintiff failed to show that an adverse employment action was taken in response to protected

activity).

Accordingly, because Plaintiff has failed to allege that Walmart terminated Plaintiff

based on discriminatory intent, any § 1981 claim based on his termination must be dismissed.8

b. Discrimination Based on Hostile Work Environment

To state a claim of hostile work environment under § 1981, a plaintiff must plausibly

allege that his “workplace was permeated with discriminatory intimidation, ridicule, and insult,

that was sufficiently severe or pervasive to alter the conditions of her employment and create an

abusive working environment.” Watkins v. N.Y.C Transit Auth., No. 16-CV-4161, 2020 WL

1888839, at *8 (S.D.N.Y. Apr. 16, 2020) (quotation marks and citation omitted); see also

Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 723–24 (2d Cir. 2010) (same). A

plaintiff may satisfy this standard by “demonstrat[ing] either that a single incident was

extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to

have altered the conditions of her working environment.” Alfano v. Costello, 294 F.3d 365, 374

(2d Cir. 2001) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)). Conduct

that is “episodic” and not sufficiently “continuous and concerted” will not be deemed pervasive.

Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (citation omitted). Moreover, a

plaintiff must establish that the defendants “create[d] such an environment because of the

plaintiff’s race.” Amaya, 295 F. Supp. 3d at 224 (citation, quotation marks, and alterations

omitted); see also Colon, 983 F. Supp. 2d at 292 (noting that a hostile work environment must

have been created because of the plaintiff’s “membership in a protected class”). In determining

8 Because the McDonnell Douglas framework discussed above applies to both the

NYSHRL and § 1981, the Court dismisses Plaintiff’s NYSHRL claims for substantially the same

reasons discussed above. See Soto v. Marist Coll., No. 17-CV-7976, 2019 WL 2371713, at *3,

*12 (S.D.N.Y. June 5, 2019) (noting that race-based NYSHRL and § 1981 claims all require that

a plaintiff suffer an “adverse employment action” on account of his race).

whether a plaintiff has plausibly alleged an actionable hostile environment, courts must look at

the “totality of the circumstances,” including “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.” Littlejohn, 795 F.3d

at 321 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

Here, Plaintiff’s hostile work environment claims survive the instant Motion for several

reasons. First, the Court notes that whether “conduct is not severe or pervasive enough to

successfully state a claim for hostile work environment under § 1981 . . . is a factual question

that is generally inappropriate for the Court to determine on a motion to dismiss.” Amaya, 295 F.

Supp. 3d at 224; see also Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) (explaining that

“whether a particular work environment is objectively hostile is necessarily a fact-intensive

inquiry”). Second, while Plaintiff’s Amended Complaint alleges only a single specific incident

where King called him a “spic,” (Am. Compl. 8), Plaintiff expands on this allegation in his

subsequent filings, explaining that King used the word “spic” over a prolonged period of time,

(Pl.’s Mem. ¶ 6), and called him a “‘spic’ not once but several times,” (Pl.’s Sur-Reply ¶ 6). To

be sure, “[f]or racist comments, slurs, and jokes to constitute a hostile work environment,” there

must be “a steady barrage of opprobrious racial comments” rather than “a few isolated incidents

of racial enmity.” See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citation and

quotation marks omitted); see also McDowell v. North Shore-Long Island Jewish Health Sys.,

Inc., 788 F. Supp. 2d 78, 82 (E.D.N.Y. 2011) (explaining that “stray remarks” from coworkers

do not amount to a hostile work environment under § 1981 (quotation omitted)). However, in

light of Plaintiff’s allegation that King’s use of slurs was prolonged, the Court cannot determine

as a matter of law that such slurs did not amount to “a steady barrage.” Schwapp, 118 F.3d at

110. After all, whether racial slurs constitute a hostile work environment typically depends upon

the “quantity, frequency, and severity of those slurs.” Id. at 110–11 (quotation marks omitted).

Third, Plaintiff has alleged offensive conduct beyond King’s use of racial slurs that may

have contributed to the hostile environment. For example, Plaintiff alleges that King spread false

allegations about him at work, and used “his position as a security guard” to “harass[] and

“stalk[]” Plaintiff, “watching [Plaintiff] through the cameras, sending [him] text messages and

basically tormenting [him].” (Am. Compl. 9.) Standing alone, these allegations do not suggest

racially motivated harassment. However, when combined with allegations that King repeatedly

used ethnic slurs in referring to Plaintiff, Plaintiff is entitled to the inference that King’s other

offensive conduct was motivated, at least in part, by racial animus. See Rasmy v. Marriott Int’l,

Inc., 952 F.3d 379, 388 (2d Cir. 2020) (“Our case law is clear that when the same individuals

engage in some harassment that is explicitly discriminatory and some that is not, the entire

course of conduct is relevant to a hostile work environment claim.”); Pucino v. Verizon Wireless

Commc’ns, Inc., 618 F.3d 112, 118 (2d. Cir 2010) (“A plaintiff may rely on incidents of sex-

based abuse to show that other ostensibly sex-neutral conduct was, in fact, sex-based.” (citation

omitted)); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547–48 (2d Cir. 2010) (“Circumstantial

evidence that facially sex-neutral incidents were part of a pattern of discrimination on the basis

of gender may consist of evidence that the same individual engaged in multiple acts of

harassment, some overtly sexual and some not.” (citation and quotation marks omitted)).9 Of

9 This is not to say that any vaguely discriminatory remark will automatically suffice to

suggest that other adverse conduct by the speaker is motivated by animus. See Harrison v. State

Univ. of N.Y. Downstate Med. Ctr., No. 16-CV-1101, 2018 WL 4055278, at *14 (E.D.N.Y. July

6, 2018) (“[The defendant’s] expressions of disdain for women at various points during the more

than ten years that plaintiff worked [for her employer] are insufficient to plead that the specific

events in January and early February 2015 were caused by such disdain. At no point does

plaintiff allege that [the defendant] made such a remark during the relevant period.”), report and

course, Walmart urges the Court to draw the opposite inference: that Plaintiff’s allegations must

be “taken within the context of King and Plaintiff’s feud over Plaintiff’s wife,” and thus that

King’s conduct should be understood as the product of a personal feud rather than King’s racial

animus. (Def.’s Reply 6.) However, at this stage, the Court must draw all inferences in

Plaintiff’s favor, not Walmart’s. Moreover, parsing the possible causes of King’s conduct is a

fact-dependent inquiry ill-suited to decision at this stage of the proceedings. See Patane, 508

F.3d at 114 (vacating and remanding because a district court made fact-dependent judgments

regarding a hostile work environment claims on a motion to dismiss).

Fourth, Walmart has advanced no arguments regarding the extent (or lack thereof) of its

own involvement in and liability for King’s conduct. The Court notes that the precise contours

of supervisory liability in the § 1981 context are unsettled. On the one hand, it is clear that

§ 1981 claims require personal involvement and discriminatory intent. See Gen. Bldg.

Contractors, 458 U.S. at 389 (explaining that § 1981 claims require “purposeful

discrimination”); Burgis, 798 F.3d at 68 (explaining that § 1981 claims require “discriminatory

intent”); Whidbee, 223 F.3d at 68 (explaining that § 1981 claims “must be predicated on the

actor’s personal involvement”); Lauture v. Int’l Bus. Machines Corp., 216 F.3d 258, 261 (2d Cir.

recommendation adopted, 2018 WL 4054868 (E.D.N.Y. Aug. 24, 2018). Rather, such

inferences necessarily depend on the “totality of the circumstances.” Kaytor, 609 F.3d at 547.

While the plaintiff in Rasmy raised § 1981 claims as well as Title VII claims, the Second

Circuit’s analysis focused exclusively on Title VII standards. Rasmy does not, therefore,

specifically address whether § 1981 requires a greater degree of connection between evidence of

a defendant’s racial animus and his offensive conduct. Thus, while Rasmy makes clear that, for

the purposes of Title VII, a defendant’s use of ethnic slurs at one moment will often be sufficient

to suggest that the defendant’s separate conduct is racially motivated, it is not clear that the same

holds true for § 1981 claims. Indeed, in light of Title VII’s “lessened causation standard,”

Naumovski, 934 F.3d at 21, there is reason to think otherwise. However, as Walmart has not

raised this argument, the Court need not consider it at this stage.

2000) (“To establish a § 1981 claim, a plaintiff . . . must show . . . an intent to discriminate on

the basis of race by the defendant . . . .”). Additionally, in the context of § 1983 claims, the

Supreme Court has explained that these same requirements necessarily demand that a supervisor

himself act with discriminatory purpose, rather than with mere acceptance of an employee’s

discriminatory purpose. See Iqbal, 556 U.S. at 677 (rejecting the view that “a supervisor’s mere

knowledge of his subordinate’s discriminatory purpose amounts to” a violation of the Equal

Protection Clause, and explaining that “[i]n the context of determining whether there is a

violation of a clearly established right to overcome qualified immunity, purpose rather than

knowledge is required”); see also Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y.

2009) (explaining that Iqbal’s rejection of liability based on “a supervisor’s mere knowledge of

his subordinate’s discriminatory purpose” applies to “intent-based constitutional claims . . . ,

specifically racial discrimination”). Given the similarities between race discrimination claims

under § 1981 and § 1983, see Patterson, 375 F.3d at 226 (discussing the nearly identical legal

standards governing § 1981 and § 1983), Iqbal’s requirements may well apply to § 1981 claims

as well, see Juarez v. Nw. Mut. Life Ins. Co., 69 F. Supp. 3d 364, 368 (S.D.N.Y. 2014) (applying

Iqbal’s “purposeful discrimination” standard to § 1981 claims); see also Burgis, 798 F.3d at 69

(discussing how statistics may be used to provide a plausible inference of “discriminatory intent

in a § 1981 or Equal Protection case” in light of Iqbal).

On the other hand, Iqbal was decided specifically in the context of constitutional claims,

and of government officials protected by qualified immunity. See Iqbal, 556 U.S. at 677 (“In the

context of determining whether there is a violation of a clearly established right to overcome

qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the

subordinate for unconstitutional discrimination . . . .”). Here, Plaintiff’s claims against Walmart

are statutory, and Walmart is a private entity which has no claim to qualified immunity.

Moreover, prior to Iqbal, the Second Circuit had decided that “personal involvement” in a civil

rights tort included both “fail[ure] to remedy the wrong” after learning of it, and “gross

negligen[ce] in supervising subordinates who committed the wrongful acts.” Colon v. Coughlin,

58 F.3d 865, 873 (2d Cir. 1995) (citation omitted). Although Iqbal altered that standard for

constitutional discrimination claims, courts in the Second Circuit have continued to apply

Colon’s personal involvement standard in other contexts, explaining that “Colon still controls

with respect to claims that do not require a showing of discriminatory intent.” Lebron v.

Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017). Moreover,

some courts have asserted, even after Iqbal, that “respondeat superior claims may reach private

entities under § 1981.” Tchatat v. City of New York, No. 14-CV-2385, 2015 WL 5091197, at

*13 (S.D.N.Y. Aug. 28, 2015), on reconsideration in part, 2015 WL 6159320 (S.D.N.Y. Oct. 20,

2015). There is, therefore, a lack of clarity regarding the standards by which an employer may

be held liable for the discriminatory conduct of its employees. Compare Wiercinski v. Mangia

57, Inc., 787 F.3d 106, 113 (2d Cir. 2015) (asserting, without analysis, that an employer’s

liability under § 1981 “depends on the plaintiff showing that the employer knew (or reasonably

should have known) about the harassment but failed to take appropriate remedial action”), with

Littlejohn, 795 F.3d at 314 (asserting, without analysis, that “[a]n individual may be held liable

under §§ 1981 and 1983 only if that individual is personally involved in the alleged deprivation”

(quotation marks omitted)).

Here, Plaintiff has alleged that he complained about King’s conduct to two of his

Walmart supervisors, and that they failed to take any action in response. (Am. Compl. 10.)

However, Plaintiff has not alleged that these supervisors were Walmart policymakers, nor that

they acted pursuant to Walmart policy. See Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406,

409 (2d Cir. 1990) (explaining, in the context of § 1983, that for private businesses as for

municipalities, “action pursuant to official . . . policy” is required to establish personal

involvement). Whether King’s conduct is attributable to Walmart thus turns on the precise legal

standards by which an employee’s discrimination can be imputed to his employer under § 1981,

particularly in the aftermath of Iqbal. In the absence of any discussion or argument from

Walmart with respect to these issues, the Court declines to consider them sua sponte. Plaintiff’s

hostile work environment claims therefore survive the instant Motion.10

3. Claims against Sam and Carry

As noted above, Plaintiff’s Amended Complaint contains only partial names for (and

insufficient information with which the U.S. Marshalls might serve) Sam and Carry.

Accordingly, on July 25, 2019, the Court directed Walmart to provide such information to

Plaintiff, and directed Plaintiff to file an amended complaint within 30 days of receiving such

information. (See Order of Service 2.) The Court noted as well that it is Plaintiff’s responsibility

to “request an extension of time for service” if service was delayed. (See id. (citing Meilleur v.

Strong, 682 F.3d 56, 63 (2d Cir. 2012)).) While Walmart provided the requested information on

November 1, 2019, and the Court reminded Plaintiff of his responsibility to file an amended

complaint by December 1, 2019, Plaintiff failed to file such a complaint. (See Dkt. Nos. 19–24.)

Accordingly, the Court dismisses the claims against Sam and Carry for failure to properly name

these individuals, failure to serve them, and failure to comply with the Court’s orders directing

10 Plaintiff’s NYSHRL hostile work environment claims survive for substantially the

same reasons discussed above. See Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (“Hostile

work environment claims under Title VII and the NYSHRL are governed by the same standard.”

(citation omitted)).

that he do so. See Spencer v. Starner, No. 18-CV-365, 2020 WL 419312, at *1 (S.D.N.Y. Jan.

27, 2020) (discussing a court’s authority to dismiss claims for failure to prosecute claims and

failure to comply with court orders); Cruz v. City of New York, 232 F. Supp. 3d 438, 448

(S.D.N.Y. 2017) (“[W]here a plaintiff has had ample time to identify a John Doe defendant but

gives no indication that he has made any effort to discover the [defendant’s] name, . . . the

plaintiff simply cannot continue to maintain a suit against the John Doe defendant.” (citation and

quotation marks omitted)).

4. Claims Against King

In contrast to Plaintiff’s failures with respect to Cary and Sam, Plaintiff’s failure to effect

service on King should not be held against him. As noted above, in serving copies of the

Summons and Complaint on Walmart, the U.S. Marshals Service believed they had thereby

served King as well, and so reported that service was executed as to both Walmart and King.

(Dkt. Nos. 17–18.) A pro se plaintiff should not be expected to micromanage the service efforts

of the U.S. Marshals Service, especially when ECF docket entries appear to reflect that service

has been successful. Accordingly, the Court directs Walmart to provide, within 30 days, an

address at which King can be served. The Court will then issue a renewed Order of Service

directing service on King.

III. Conclusion

For the foregoing reasons, the Motion is granted in part and denied in part.

Plaintiff’s Title VII claims, § 1981 and NYSHRL claims based on disparate treatment,

and all claims against Carry and Sam are dismissed. However, Plaintiff’s hostile work

environment claims against Walmart and King (pursuant to § 1981 and NYSHRL) survive. The

Court directs Walmart to provide, within 30 days, an address at which King can be served.

Because Plaintiff has already amended his complaint once in response to an Order To

Amend issued by Chief Judge McMahon, (see Dkt. Nos. 5—6), and because the Court provided

Plaintiff with an additional opportunity to amend (which he ignored), (see Dkt. Nos. 9, 24), the

dismissals are with prejudice. See Kamdem-Ouaffo v. Pepsico, Inc., 160 F. Supp. 3d 553, 574

n.28 (S.D.N.Y. 2016) (“[T]he [cJourt has given [p]laintiff two bites at the apple, and there is no

need for a third bite.”); see also Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (explaining

that a plaintiff is not entitled to “a third go-around”); Treppel v. Biovail Corp., No.03—CV-3002,

2005 WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005) (explaining that “leave to amend would be

futile because [the] plaintiff has already had two bites at the apple and they have proven

fruitless”).

The Court will hold a Status Conference in this Action on October 26, 2020 at 10:30 a.m.

The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.

27), and to mail a copy of this Opinion to Plaintiff.

SO ORDERED.

Ay

DATED: __ September 24, 2020 ij His 7

White Plains, New York Z ; / ma

KENNETHM.KARAS—~—~—

UNITED STATES DISTRICT JUDGE

27