# Dubie v. Buffalo Concrete Accessories, Inc.

> District Court, W.D. New York · March 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10364794

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 28, 2022
- **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/10364794

## How later opinions describe it (automated extraction)

- declining to excuse plaintiff’s failure to exhaust where plaintiff alleged that EEOC misplaced materials submitted to EEOC and EEOC employee told plaintiff that “both [discriminatory] categories would be examined”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CELESTINE DUBIE,

Plaintiff,
21-CV-744-LJV
v. DECISION & ORDER

BUFFALO CONCRETE ACCESSORIES,
INC.,

Defendant.

On June 16, 2021, the pro se plaintiff, Celestine Dubie, commenced this action,
alleging that the defendant, Buffalo Concrete Accessories, Inc. (“Buffalo Concrete”),
subjected her to discrimination based on race and color, sexual harassment, a hostile
work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq. See Docket Item 1 (complaint); Docket Item 3
(Equal Employment Opportunity Commission (“EEOC”) charge and right-to-sue letter).
On July 19, 2021, Buffalo Concrete moved to dismiss the complaint, Docket Item 8; on
August 10, 2021, Dubie responded, Docket Item 13; and on August 24, 2021, Buffalo
Concrete replied, Docket Item 15.
For the following reasons, Buffalo Concrete’s motion to dismiss will be granted
unless Dubie amends her complaint to correct the deficiencies noted below.
FACTUAL BACKGROUND1

Dubie was employed by Buffalo Concrete from April 29, 2019, until she was
discharged in early January 2020.2 Docket Item 1 at ¶¶ 4-6; Docket Item 3 at 2. Buffalo
Concrete has five to ten employees. Docket Item 1 at ¶ 2.

1On a motion to dismiss, the Court “accept[s] all factual allegations as true and
draw[s] all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). In deciding the
motion, the Court may consider any written documents that are attached to the
complaint, incorporated by reference, or integral to it. Sira v. Morton, 380 F.3d 57, 67
(2d Cir. 2004). Here, the EEOC charge, right-to-sue letter, and notice are all three, and
the Court considers each document.
When Dubie filed her response to the motion to dismiss, she also filed several
exhibits in support of her response. See Docket Items 12, 14. Those exhibits are: (1)
excerpts from Buffalo Concrete’s employee manual, Docket Item 12 at 2-9; (2) an email
sent from Dubie to Mary Hartley, a supervisor at Buffalo Concrete, on June 4, 2019, id.
at 10; (3) an email draft from Dubie to Hartley dated December 10, 2019, id. at 11-13;
(4) an email draft from Dubie to “Kathy”—presumably Kathy Grimm, the former
President of Buffalo Concrete—dated December 11, 2019, id. at 14; (5) an appeal letter
addressed to the New York State Department of Labor Appeal Board, id. at 15-17; (6)
research on the origins of the expression “in a coon’s age,” id. at 18; (7) an envelope
from an EEOC mailing, Docket Item 14 at 2; (8) Form 161 from the EEOC entitled
“Information Related to Filing Suit,” id. at 3; (9) a status report from BestSelf Behavioral
Health, id. at 4-6; and (10) a settlement offer from Dubie to Buffalo Concrete, id. at 7-10.
Dubie’s complaint refers to an email from “June 4th.” Docket Item 1 at ¶ 19.
Accordingly, the Court deems the email from Dubie to Hartley sent on June 4, 2019,
Docket Item 12 at 10, as incorporated by reference in the complaint and considers it on
the present motion to dismiss. Dubie’s complaint does not refer to the other documents,
and the Court therefore does not consider them.
Dubie should understand that any written material she seeks to include in any
amended complaint should be attached to the amended complaint or incorporated by
reference. See Sira, 380 F.3d at 67.
2 In the complaint, Dubie alleges that the last discriminatory act occurred on
January 3, 2020, but she does not specify what that act was. Docket Item 1 at ¶¶ 6-7.
In the EEOC charge, however, Dubie says that she was discharged “[o]n or about
January 8, 2020.” Docket Item 3 at 2.
Throughout her employment, Dubie heard her “co-workers and [her] potential
new boss” say “comments[,] such as ‘coon’ and ‘roots.’” Docket Item 3 at 2. Dubie
researched the meaning of a phrase that included the word “coon.” Id. When Buffalo
Concrete saw an email regarding her research on that comment, Buffalo Concrete

began “blind carbon cop[ying]” her emails “without [her] knowledge.” Id.
Dubie also “experienced what felt and seemed like personal attacks regarding
[her] work performance.” Id. This included accusations regarding “making coffee, . . .
loss of documents, and smoking in a restroom.” Id. These attacks “happened regularly,
daily[,] and throughout the week” during the entirety of Dubie’s employment. Id.; see
also Docket Item 1 at ¶¶ 5-6. Indeed, the attacks happened so often that they affected
Dubie’s emotional, mental, and physical well-being. Docket Item 3 at 2.
At some point during Dubie’s employment, a “tenant” of Buffalo Concrete also
made an “implied sexual innuendo” to Dubie about the general manager of Buffalo
Concrete and how Dubie might keep her job.3 Docket Item 1 at ¶ 19.

Dubie raised her concerns three times with the owner of Buffalo Concrete, but
the “owner failed to hear [her] grievances on” each occasion. Id. Instead, the owner
“allow[ed] the acts to continue.” Id. “All [of the] acts were carried out . . . by the then
[general manager and] now co-owner.” Id. And Dubie’s co-workers followed the lead of
the general manager’s behavior. Id.

3 The precise allegation in the complaint reads a “tenant of defendant implied
sexual innuendo to GM to keep employment.” Docket Item 1 at ¶ 19. The Court
assumes that Dubie means that a tenant directed a sexual innuendo at Dubie regarding
her and the general manager of Buffalo Concrete. If this is incorrect, Dubie should
clarify this allegation in any amended complaint. In particular, she should provide
enough detail so that the Court can discern what was said, whether a sexual reference
was made, to whom it was directed, and about whom it was made.
On August 13, 2020, Dubie filed an EEOC charge. Docket Item 3 at 2. In the
EEOC charge, Dubie indicated that Buffalo Concrete discriminated against her based
on her race and color, but she did not indicate that she was discriminated against based
on her sex. Id. The EEOC issued a “right-to-sue letter” and notice on March 16, 2021.

Id. at 3-4. The notice instructed Dubie that any lawsuit she may wish to file “under
federal law . . . must be filed WITHIN 90 DAYS of your receipt of this notice; or your
right to sue based on this charge will be lost.” Id. at 4 (bold emphasis, capitalization,
and underlining in original). In her compliant, Dubie says that she received the notice
on the same day it was issued—March 16, 2021. Docket Item 1 at ¶¶ 12, 18.

LEGAL PRINCIPLES
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Although the
statute of limitations is ordinarily an affirmative defense that must be raised in the
answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the
defense appears on the face of the complaint.” Conn. Gen. Life Ins. Co. v. BioHealth
Labs., Inc., 988 F.3d 127, 131-32 (2d Cir. 2021) (quoting Thea v. Kleinhandler, 807 F.3d
492, 501 (2d Cir. 2015)).
DISCUSSION

Buffalo Concrete argues that all Dubie’s claims must be dismissed because she
does not allege that Buffalo Concrete is an “employer” within the meaning of Title VII
and because her complaint is time-barred. Docket Item 8-1. In addition, Buffalo
Concrete argues that Dubie failed to exhaust her administrative remedies on her sexual
harassment claims. Id. Finally, it argues that Dubie’s claims for racial discrimination,
retaliation, and hostile work environment also fail to plausibly state a claim for relief. Id.
The Court addresses each argument in turn.

I. EMPLOYER STATUS UNDER TITLE VII
Title VII “makes it unlawful for an employer ‘to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.’” Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-2(a)(1)). It
applies, however, only to entities that meet the statute’s definition of “employer.”

Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005). Under Title
VII, an “employer” is defined as “a person engaged in an industry affecting commerce
who has fifteen or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 2000e(b).
That requirement of fifteen or more employees is a substantive element of a
plaintiff’s Title VII claim. Arbaugh v. Y&H Corp., 546 U.S. 500, 504 (2006) (“[T]he
threshold number of employees for application of Title VII is an element of a plaintiff's
claim for relief, not a jurisdictional issue.”). Therefore, to survive a motion to dismiss, a
plaintiff must allege facts plausibly suggesting that her employer is covered under Title
VII. Shultz v. Valley View Cheese, Inc., 2021 WL 4025248, at *3 (W.D.N.Y. Sept. 2,
2021).
In her complaint, Dubie does not allege that Buffalo Concrete employed fifteen or

more employees. Docket Item 1. In fact, she alleges the opposite—that Buffalo
Concrete had only five to ten employees. Id. at ¶ 2. Therefore, Dubie has not plausibly
alleged that Buffalo Concrete had fifteen or more employees for twenty or more weeks
of the year and was a covered employer under Title VII.
In her response, Dubie raises new allegations about who worked at Buffalo
Concrete and seeks to provide context for the factual allegations raised in the
complaint. Docket Item 13. She alleges that Buffalo Concrete had three retail
locations, and she says that she meant to plead that Buffalo Concrete had five to ten
employees at the location where she worked, not overall. Id. at 3. Dubie also alleges
that an employee was out on disability and that Buffalo Concrete hired Dubie to replace

another employee. Id. And she alleges that in a 2017 news article, Buffalo Concrete
said that it had ten employees but “intended to increase that number.” Id. at 4. Lastly,
she alleges that she had heard about four previous employees, id., but she does not
allege when or for how long those employees worked at Buffalo Concrete.
Putting aside whether the Court may and should consider these new allegations,4
those allegations still do not plausibly suggest that Buffalo Concrete was a covered

4 Normally, a court “will not consider [] factual allegations raised for the first time
in a brief in opposition to a motion to dismiss.” Harrell v. N.Y. State Dep’t of Corr. &
Cmty. Supervision, 2019 WL 3817190, at *2 n.3 (S.D.N.Y. Aug. 14, 2019). In any future
filings, any facts that Dubie wants the Court to consider should be pleaded in any
amended complaint and not raised in a response.
employer under Title VII. Although she alleges that Buffalo Concrete said that it
intended to increase its number of employees beyond ten in 2017 and that she knew of
another employee out on disability, Dubie does not allege any facts to plausibly suggest
Buffalo Concrete grew to fifteen or more employees. Likewise, although she says that

she heard about four other employees and that Buffalo Concrete had other locations,
she still alleges nothing that would add up to fifteen.
Dubie therefore has failed to plead that Buffalo Concrete is an employer within
the meaning of Title VII. And for that reason, she has failed to state a claim under Title
VII. 5

II. TIMELINESS OF COMPLAINT
Title VII claims must be filed in federal court within 90 days of the claimant’s
receipt of a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1). “The
[90-day] period is measured in calendar days, not business days.” Carpenter v. City of
New York, 2011 WL 2118599, at *2 (W.D.N.Y. May 25, 2011). And the deadline is
strict. See Manley v. N.Y.C. Police Dep’t, 2005 WL 2664220, at *3-5 (E.D.N.Y. Oct. 19,

5 In her response, Dubie asks the Court for leave to conduct discovery on Buffalo
Concrete’s employee history. Docket Item 13 at 3, 14-15. In reply, Buffalo Concrete
asks that the motion to dismiss be converted to one for summary judgment and to
permit Buffalo Concrete to submit evidence that it employed fewer than fifteen people.
Docket Item 15 at 7. Both parties’ requests are denied without prejudice to renewal
should Dubie file an amended complaint. If Dubie is uncertain about the number of
employees Buffalo Concrete had at the time of her employment but believes that Buffalo
Concrete had at least fifteen employees, she may allege that fact based upon her
“information and belief.” See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.
2010) (“[A] plaintiff [may] ‘plead[] facts alleged “upon information and belief”’ where the
facts are peculiarly within the possession and control of the defendant, or where the
belief is based on factual information that makes the inference of culpability plausible.”
(internal citations omitted)).
2005) (dismissing pro se plaintiff’s claims as untimely when plaintiff filed complaint 91
days after receiving right-to-sue letter); see also Hughes v. Elmira Coll., 584 F. Supp. 2d
588, 590 (W.D.N.Y. 2008) (same). In fact, “[i]n the absence of a recognized equitable
consideration, the court cannot extend the limitations period by even one day.” Johnson

v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (citation omitted).
Dubie alleges that she received the right-to-sue letter on March 16, 2021.6
Docket Item 1 at ¶¶ 12, 18. She filed her suit 92 days later—on June 16, 2021. Docket
Item 1. Based on the allegations in her complaint, therefore, Dubie’s complaint is
untimely.7
If this Court were to instead consider Dubie’s new allegations in her response,
her suit would be timely. In her response, Dubie alleges that she actually received the
EEOC’s right-to-sue letter on March 20, 2021, Docket Item 13 at 4-5, meaning that her
suit filed 88 days later on June 16, 2021, would have been timely.8 But based on the

6 The EEOC issued the right-to-sue letter that same day, Docket Item 3 at 3-4, so
the allegation that Dubie received the letter on the day that it was issued may well be a
typographical error or otherwise simply a mistake. If so, that mistake should be
corrected in any amended complaint.
7 Dubie does not assert that equitable tolling extended her time to commence a
lawsuit, nor does she allege any extraordinary facts that would trigger equitable tolling.
“[T]he Supreme Court has recognized only four situations justifying equitable tolling of
Title VII's time limits: (1) where a claimant receives inadequate notice of the right to sue;
(2) where circumstances justify tolling while a claimant's motion for appointment of
counsel is pending; (3) where the court has led a plaintiff to believe she has done
everything required of her; or (4) where affirmative conduct by the defendant has lulled
the plaintiff into inaction.” Coffey v. Donahoe, 2013 WL 3244788, at *5 (W.D.N.Y. June
26, 2013) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)).
8 Buffalo Concrete’s reply suggests that Dubie may have downloaded the
right-to-sue letter from the EEOC portal on March 16 or 17, 2021. Docket Item 15 at 7.
It argues that if Dubie did indeed download the letter from the portal, the date of the
download—not the date the letter arrived by mail—should be used as the date received.
Id. Based on that suggestion, Buffalo Concrete asks the Court to convert the motion to
allegations in her complaint—which, as noted above, the Court relies on here—Dubie’s
complaint is untimely, and her suit is time-barred.9

III. EXHAUSTION OF REMEDIES FOR SEXUAL HARASSMENT CLAIMS
“Title VII requires a plaintiff to exhaust administrative remedies before filing suit in
federal court.” 10 Fowlkes v. Ironworkers Loc. 40, 790 F.3d 378, 384 (2d Cir. 2015).
Under a narrow exception to the exhaustion requirement, “claims not raised in an EEOC
complaint may still be part of the complaint later filed in federal court if they are
reasonably related to the claim filed with the agency.” Littlejohn v. City of New York,
795 F.3d 297, 322 (2d Cir. 2015) (citation and internal quotation marks omitted). A
claim is reasonably related “if 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.
Dubie’s EEOC charge focuses solely on discrimination based on race and color,
not sex: She checked boxes indicating that she was discriminated against based only
on race and color, and she left the box labelled “sex” blank. See Docket Item 3 at 2.

dismiss to a motion for summary judgment and to permit limited discovery on when
Dubie received the letter. Id. at 7-8. That request is denied without prejudice. If Dubie
amends her complaint to allege a later date of receipt, Buffalo Concrete may raise this
argument in a later motion for summary judgment.
9 In any amended complaint, Dubie should clarify the precise date on which she
received the right-to-sue letter.
10 Buffalo Concrete asserts that the exhaustion requirement is jurisdictional and
moves to dismiss this claim based on lack of subject matter jurisdiction. Docket Item
8-1 at 15. But the exhaustion requirement is not jurisdictional; rather, it is a precondition
to bringing suit that is subject to equitable exceptions. See Fowlkes v. Ironworkers Loc.
40, 790 F.3d 378, 384-86 (2d Cir. 2015). Buffalo Concrete’s motion to dismiss based
on lack of subject matter jurisdiction therefore is denied.
Moreover, the allegations in the EEOC charge were limited to racially-charged
comments by “co-workers and [her] potential new boss.” Id. And the EEOC charge
concluded with a statement that Dubie believed she had been “discriminated against
because of [her] race . . . and color” but said nothing about discrimination based on sex.

Id.
Moreover, Dubie’s sexual harassment claims are not “reasonably related” to the
claims raised in her EEOC charge. The complaint in this Court alleges that a tenant of
Buffalo Concrete made an “implied sexual innuendo” to Dubie about the general
manager of Buffalo Concrete and how Dubie might “keep [her] employment.” Docket
Item 1 at ¶ 19. That allegation of sexual harassment has nothing to do with the race-
and color-based discrimination Dubie claims and therefore does not “fall within the
scope of the EEOC investigation which can reasonably be expected to grow out of the
charge that was made.” See Littlejohn, 795 F.3d at 322. In fact, the person who made
the remark that gave rise to the claim of sexual harassment—a tenant—was not

involved in the alleged racial discrimination described in the EEOC charge. Cf. id. at
323 (sexual harassment claim not “reasonably related” to EEOC racial discrimination
claims where alleged perpetrator of sexual harassment not involved in alleged racial
discrimination). So the allegations of sexual harassment and racial discrimination seem
to be completely unrelated.
In her response, Dubie argues that she actually did exhaust her administrative
remedies on her sexual harassment claims, or that her failure to exhaust should be
excused, for two reasons. Docket Item 13. First, she asserts that telling an EEOC
investigator about the “sexual innuendo” in a phone interview before the charge was
filed met her exhaustion obligation. Id. at 5. And second, she alleges that she
uploaded an “appeal letter” detailing the sexual innuendo to the EEOC portal and sent
the letter via email to the EEOC investigator, thereby raising the issue with the EEOC.
Id.

“[M]isrepresentations by a governmental official do not bind the government or
excuse noncompliance with a statutory requirement”—including “the exhaustion
requirement.” Chukwueze v. NYCERS, 891 F. Supp. 2d 443, 452-53 (S.D.N.Y. 2012)
(citing Schweiker v. Hansen, 450 U.S. 785 (1981)). So even if the EEOC investigator
erred by omitting Dubie’s allegations of sexual harassment from the EEOC charge after
a phone interview, that would not excuse Dubie’s failure to exhaust her remedies on the
sexual harassment claims. Cf. id. (declining to excuse plaintiff’s failure to exhaust
where plaintiff alleged that EEOC misplaced materials submitted to EEOC and EEOC
employee told plaintiff that “both [discriminatory] categories would be examined”).
Dubie’s allegation that she uploaded an “appeal letter” about the sexual innuendo

to the EEOC portal and emailed the letter to the EEOC investigator fares no better.
Even if Dubie had taken those steps, that would not excuse Dubie’s failure to exhaust:
letters sent to the EEOC raising “additional claims of discrimination unrelated to the
claims described in the EEOC charge cannot ‘enlarge [the] scope [of the original
charge] to include new claims.’” Littlejohn, 795 F.3d at 323 (alterations in original).
EEOC regulations permit “‘written statements’ of fact to amend a charge, but only
insofar as they ‘clarify and amplify allegations made’ in the original charge or ‘alleg[e]
additional acts which constitute unlawful employment practices related to or growing out
of the subject matter of the original charge.’” Holtz v. Rockefeller & Co., 258 F.3d 62,
83 (2d Cir. 2001) (quoting 29 C.F.R. § 1601.12(b)).
Here, the EEOC could have considered Dubie’s appeal letter only to the extent
that it amplified or clarified the original charge of racial discrimination. So to the extent

that the letter alleged different acts related to a new “unlawful employment practice[]”—
sexual harassment—it was not subject to EEOC review and did not exhaust
administrative remedies. See id.; see also Littlejohn, 795 F.3d at 323-24 (plaintiff’s
supplemental letter about sexual harassment could not amend EEOC charge about
racial discrimination because it included a “‘new unlawful employment practice[] or
bas[i]s for discrimination’ based on sexual harassment”).
Because Dubie did not exhaust administrative remedies for her sexual
harassment claim and has not plausibly alleged an exception to the exhaustion
requirement, she fails to state a claim for sexual harassment.

IV. FAILURE TO STATE A CLAIM
A. Racial Discrimination
To state a prima facie case of racial discrimination under Title VII, the plaintiff
must show “(1) that she is a member of a protected class; (2) that she was qualified for
employment in the position; (3) that she suffered an adverse employment action; and
[(4) that she has] some minimal evidence suggesting an inference that the employer
acted with discriminatory motivation.” Littlejohn, 795 F.3d at 307. If she meets her

burden, the defendant is presumed to have unlawfully discriminated against her, and
the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for
the adverse employment action. Id. If the defendant makes that showing, the burden
shifts back to the plaintiff to show that the defendant’s stated reason is pretextual. Id. at
307-08.
To state a viable claim, an employment-discrimination plaintiff must plead
“enough nonconclusory factual matter to nudge her claim[s] across the line from

conceivable to plausible.” Mandala v. NTT Data, Inc., 975 F.3d 202, 208 (2d Cir. 2020)
(alterations, citations, and internal quotation marks omitted). More specifically, to defeat
a motion to dismiss, an employment-discrimination plaintiff alleging racial discrimination
under Title VII “need only give plausible support to a minimal inference of discriminatory
motivation” behind an adverse employment action. Vega, 801 F.3d at 84; Littlejohn,
795 F.3d at 306, 311. “An inference of discrimination can arise from circumstances
including, but not limited to, [1] ‘the employer’s criticism of the plaintiff’s performance in
ethnically degrading terms; [2] its invidious comments about others in the employee’s
protected group; [3] the more favorable treatment of employees not in the protected
group; [4] the sequence of events leading to the plaintiff’s discharge’[; or 5] . . . when an

employer replaces a terminated or demoted employee with an individual outside the
employee’s protected class.” Littlejohn, 795 F.3d at 312-13 (citations omitted).
Although “actions or remarks made by decisionmakers that could be viewed as
reflecting a discriminatory animus” may give rise to an inference of discrimination,
Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir.1996), “stray remarks
alone do not support a discrimination suit,” Danzer v. Norden Sys., Inc., 151 F.3d 50, 56
(2d Cir. 1998) (internal quotation marks omitted). “In determining whether a remark is
probative [of discriminatory intent], [courts] have considered four factors: (1) who made
the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the
remark was made in relation to the employment decision at issue; (3) the content of the
remark (i.e., whether a reasonable juror could view the remark as discriminatory); and
(4) the context in which the remark was made (i.e., whether it was related to the
decision-making process).” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir.

2010). And “[c]ourts in the Second Circuit routinely dismiss discrimination claims where
the only allegations made in support are stray remarks by non-decisionmakers wholly
unconnected to the adverse employment action underlying the claim.” Ahmad v. White
Plains City Sch. Dist., 2019 WL 3202747, at *7 (S.D.N.Y. July 16, 2019) (collecting
cases).
Dubie’s discrimination claim appears to be based on her “discharge” from Buffalo
Concrete in January 2020. See Docket Item 1 at ¶¶ 6-7; Docket Item 3 at 2. But even
assuming that her “discharge” was an adverse action,11 Dubie has not plausibly alleged
circumstances giving rise to an inference that racial discrimination triggered that
adverse action. She alleges that she heard “co-workers and [her] potential new boss”

make comments that included the words “coon” and “roots.” Docket Item 3 at 2. But
she does not allege that these individuals had decision-making authority in personnel
decisions, let alone that they were involved in Dubie’s discharge. In other words, Dubie
does not connect those allegations to her discharge, and they therefore do not give rise
to an inference that racial discrimination triggered the adverse employment action
against her. Because Dubie’s allegations do not plausibly support even a minimal

11 The complaint is not clear as to the circumstances of Dubie’s “discharge.” See
Docket Item 1. From the complaint, the Court cannot tell whether Dubie was fired, quit,
felt compelled to quit, or left employment for some other reason.
inference of discriminatory motivation, her complaint fails to state a claim for racial
discrimination.

B. Retaliation
To establish a prima facie case of retaliation under Title VII, “a plaintiff must
demonstrate that (1) she engaged in protected activity; (2) the employer was aware of
that activity; (3) the employee suffered a materially adverse action; and (4) there was a
causal connection between the protected activity and that adverse action.” Kelly v.
Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013)
(citation and internal quotation marks omitted).
“‘Protected activity’ includes opposition to a discriminatory employment practice,”

Hubbard v. Total Commc’ns., Inc., 347 F. App’x 679, 680-81 (2d Cir. 2009), and
encompasses “informal protests” such as “making complaints to management,” Belton
v. Borg & Ide Imaging, P.C., 2021 WL 98392, at *7 (W.D.N.Y. Jan. 12, 2021) (citation
omitted). “But such [informal] complaints must be sufficiently specific so that the
employer is put on notice that the plaintiff believes she is being discriminated against on
the basis of a protected characteristic.” Id. (internal quotation marks omitted); Brummell
v. Webster Cent. Sch. Dist., 2009 WL 232789, at *5 (W.D.N.Y. Jan. 29, 2009)). In other
words, “[g]eneralized complaints” about mistreatment are insufficient. McCullough v.
John T. Mather Hosp. of Port Jefferson, N.Y., Inc., 2019 WL 1755436, at *8 (Apr. 19,

2019). “To the extent that an employee complains about perceived ‘unfair’ treatment
relating to job responsibility, hiring practices, or corporate policy, but fails to link the
treatment to unlawful discrimination or to h[er] protected status, [s]he fails to establish
that [s]he was engaged in [a] protected activity.” Id. (citation omitted).
Dubie alleges that the “owner failed to hear [her] grievances on three separate
occasions.” Docket Item 1 at ¶ 19. But she does not allege what she was complaining
about, much less that she complained that she was “being discriminated against on the
basis of” her race. See Belton, 2021 WL 98292, at *7. In fact, based on the allegations

Dubie raises in her response, it appears that Dubie complained to Hartley about the
manner in which Hartley corrected Dubie’s work. See Docket Item 12 at 10; Docket
Item 13 at 8. So Dubie’s generalized grievances to management could not have put the
defendant on notice that Dubie believed she was being discriminated against based on
her race and color.
Because Dubie has not alleged that she suffered adverse action as a result of a
protected activity such as complaining about racial discrimination, she has failed to state
a viable retaliation claim under Title VII.

C. Hostile Work Environment
“Under Title VII, an employee seeking to bring a hostile work environment claim
must show [1] that she . . . is a member of a protected class; [2] that she suffered
unwelcome harassment; [3] that she was harassed because of her membership in a
protected class; and [4] that the harassment was sufficiently severe or pervasive to alter
the conditions of employment and create an abusive work environment.” Monterroso v.
Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 584 (S.D.N.Y. 2008). “This test has

objective and subjective elements: the misconduct must be ‘severe or pervasive
enough to create an objectively hostile or abusive work environment,’ and the victim
must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294
F.3d 365, 374 (2d Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). Courts look at the totality of the circumstances and examine factors 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.” Harris, 510 U.S. at 23.

Although “[t]he standard for a hostile work environment claim is a demanding
one” and “Title VII is not intended to create a code of civility,” Scott v. Memorial Sloan-
Kettering Cancer Ctr., 190 F. Supp. 2d 590, 599 (S.D.N.Y. 2002), the Second Circuit
“ha[s] repeatedly cautioned against setting the bar too high,” Terry v. Ashcroft, 336 F.3d
128, 148 (2d Cir. 2003).
[W]hile a mild, isolated incident does not make a work environment hostile,
the test is whether “the harassment is of such quality or quantity that a
reasonable employee would find the conditions of her employment altered
for the worse.” The environment need not be “unendurable” or “intolerable.”
Nor must the victim’s “psychological well-being” be damaged. In short, “‘the
fact that the law requires harassment to be severe or pervasive before it
can be actionable does not mean that employers are free from liability in all
but the most egregious cases.’”

Id. (citations omitted).

“While discrete claims of discrimination and retaliation must be brought within the
300-day limitations period to be actionable, a different rule applies with regard to hostile
work environment claims.” Zoulas v. N.Y.C. Dep’t of Educ., 400 F. Supp. 3d 25, 50
(S.D.N.Y. 2019) (citation omitted). “Hostile environment claims are different in kind from
discrete acts. Their very nature involves repeated conduct.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115 (2002). Therefore, “as long as any act contributing
to the hostile work environment claim falls within the 300-day period, ‘the entire time
period of the hostile environment may be considered by a court for the purposes of
determining liability.’” Zoulas, 400 F. Supp. 3d at 50 (citing Morgan, 536 U.S. at 117).
Dubie filed a charge of discrimination on August 13, 2020. Docket Item 1 at ¶ 8;
Docket Item 3 at 2. Therefore, as long as an act contributing to the hostile work
environment occurred within 300 days before that—that is, on or after October 18,
2019—the entire time period of her hostile work environment may be considered.

Dubie alleges that she was subject to “microagression[s]; racial bias[]; workplace
harassment; [and] racial slurs, jokes, [and] stereotype[s]” throughout her employment at
Buffalo Concrete. Docket Item 1 at ¶¶ 5, 6, 13(j). She identifies May 16 to June 4,
2019; June 10, 2019; August 1, 2019; September 1, 2019; October 1, 201912;
November 1, 2019; December 1, 2019; and January 3, 2020, as when discriminatory
acts occurred. Id. at ¶¶ 5-6.
But Dubie does not allege any specific act of discrimination connected to any
specific date, and the complaint therefore fails to allege any action within the 300-day
limitations period. Indeed, even considering the new allegations raised in her response
to the motion to dismiss, Dubie still has not alleged an act within the limitations period

that allegedly contributed to the hostile work environment. See Docket Item 13 at 8
(email regarding mistreatment sent on June 4, 2019); id. (emails drafted regarding
“behavior still being endured in September 2019”); id. at 11 (racial slur said in Dubie’s
presence in June 2019). And with no allegation of any act inside the limitations period,
none of the alleged related acts from outside the limitations period may be considered.

12 The complaint alleges that an act of discrimination occurred in the month of
“October” without a particular day or year. Id. at ¶ 6. Based on the sequence of dates
that includes August 1, September 1, November 1, and December 1 of 2019, see id.,
the Court assumes that Dubie intended to allege a discriminatory act in October 2019.
The complaint therefore fails to state a timely claim for a hostile work
environment.13

V. LEAVE TO AMEND
In Dubie’s response, she asks for leave to amend her complaint. 14 Docket Item
13 at 14. Because leave to amend should be “freely given” whenever a complaint is
dismissed, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007),
Dubie has 45 days to file an amended complaint that corrects the deficiencies noted
above.

CONCLUSION
For the reasons stated above, Buffalo Concrete’s motion to dismiss, Docket Item
8, will be granted unless Dubie amends her complaint, within 45 days, to correct the

13 Buffalo Concrete also argues that Dubie fails to plausibly allege that the
workplace misconduct was “severe or pervasive enough to create an objectively hostile
or abusive work environment.” Docket Item 8-1 at 21-23 (quoting Agosto v. N.Y.C.
Dep’t of Educ., 982 F.3d 86, 101 (2d Cir. 2020)). Given the multitude of other pleading
deficiencies in the complaint, the Court leaves that analysis for another day. But in any
amended complaint, Dubie should be sure to allege facts that plausibly show workplace
misconduct “severe or pervasive enough to create an objectively hostile or abusive work
environment.” See Alfano, 294 F.3d at 374.
14 Dubie also asks for discovery on the “[n]ame and information of Peter Gaglio’s
sister who worked in the ECMC [e]mergency [r]oom.” Docket Item 13 at 15. That
request is denied as premature. “Local Rule of Civil Procedure 26(b) provides that
‘[s]ubject to the requirements of Fed. R. Civ. P. 26(a)(1), a party may not seek discovery
from any source prior to the Rule 26(f) conference, absent the parties’ agreement or a
Court order setting a discovery schedule.’” Micolo v. Fuller, 2016 WL 158591, at *2
(W.D.N.Y. Jan. 13, 2016). Moreover, given the nature of Dubie’s claims, it is not clear
to this Court that Dubie’s discovery request is relevant. See Fed R. Civ. P. 26(b)(1)
(scope of discovery is limited to “nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case”).
deficiencies noted above. No later than 30 days after any amended complaint is filed,
Buffalo Concrete may answer, move against, or otherwise respond to the amended
complaint. If Dubie does not file an amended complaint within 45 days, her complaint
will be dismissed and the Clerk of the Court shall close this case without further order.

SO ORDERED.

Dated: March 28, 2022
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364794. Public record. Not legal advice.