Vannier v. New York State Department of Corrections and Community Services

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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ASHLEY VANNIER

Plaintiff,

-v- 1:24-CV-324

NEW YORK STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY

SERVICES and GREAT MEADOW

CORRECTIONAL FACILITY,

Defendants.

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APPEARANCES: OF COUNSEL:

GENDER EQUALITY LAW ALLEGRA L. FISHEL, ESQ

CENTER VICO D. FORTIER, ESQ

Attorney for Plaintiff

157 13th Street

Brooklyn, NY 12307

STATE OF NEW YORK ALEXANDER POWHIDA, ESQ

ATTORNEY GENERAL,

ALBANY OFFICE

Attorneys for Defendants

6 Tower Place

Albany, NY 12203

DAVID N. HURD

United States District Judge

DECISION and ORDER

I. INTRODUCTION

On March 6, 2024, plaintiff Ashley Vannier (“Vannier” or “plaintiff”), a

former corrections officer by at the New York State Department of

Corrections and Community Services (“NYSDOCCS”) and Great Meadow

Correctional Facility (“GMCF”) (collectively, “defendants”), filed this civil

rights action for alleged employment discrimination and harassment in

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New

York State Human Rights Law (the “NYSHRL”). Dkt. No. 1. Plaintiff is

seeking money damages and injunctive relief.1 Id.

On July 5, 2024, defendants moved to partially dismiss Vannier’s

complaint pursuant to Federal Rules of Civil Procedure (“Rules”) 12(b)(1) and

(6) for lack of subject matter jurisdiction and for failure to state a claim. Dkt.

No. 11.

The motion has been fully briefed and will be considered on the basis of the

submissions without oral argument. Dkt. Nos. 1, 11, 15.

1 Plaintiff also seeks injunctive relief whereby DOCCSS is ordered to remedy its policies and

practices to comply with Title VII and the NYSHRL and to affirmatively act to ensure that, in the

future, the effects suffered by Vannier during and after his gender transition are never again

endured by Vannier or any other future employees. See id.

II. BACKGROUND

The following facts are taken from Vannier’s complaint, Dkt. No. 1, and

will be assumed true for purposes of assessing defendants’ motion to dismiss.

Vannier is a transgender man. Compl. ¶1. From 2012 until August 2022,

Vannier worked as a corrections officer for NYSDOCCS and was assigned to

GMCF. Id. When Vannier was hired by NYSDOCCS, he initially presented

as a woman. Id. ¶ 2. But plaintiff soon began the process of physically

“transitioning” to become a male. Id.

In 2013, Vannier began taking testosterone and underwent multiple

procedures to complete his physical “transition.” Id. ¶ 2. But as plaintiff

started “transitioning” publicly, he also began to experience hostility and

abuse from his coworkers and supervisors relating to his gender identity.2 Id.

In 2018, Vannier formally announced that he identified as a man at work.

Compl. ¶ 2. But in response, his co-workers refused his requests to use male

pronouns and intentionally misgendered him for the remainder of his tenure

with NYSDOCCS. Id. ¶ 4. Vannier’s co-workers and supervisors at GMCF

taunted him using his prior female pronouns and laughed at him when this

2 Further, in the fall of 2013, plaintiff informed one of his supervisors at GMCF that he was

about to undergo the first of several gender transition surgeries. Compl. ¶ 33. Plaintiff indicated he

would be making several requests including transfer from the male to female locker room at GMCF.

Id. This supervisor ordered Vannier to keep quiet about transition until his final surgery was

completed before requesting workplace accommodations. Id. ¶ 34.

upset him.3 Id. ¶ 5. And the abuse was not solely verbal. Id. On one

occasion, plaintiff’s supervisors and co-workers vandalized his locker,

defacing it with derogatory graffiti that referred to plaintiff by name and

filling it with spit and chewing tobacco. Id. ¶ 6.

In 2018, Vannier was also physically threatened and, on at least one

occasion, chased up a flight of stairs by another NYSDOCCS employee while

co-workers and supervisors continued to taunt and ridicule him about his

gender identity. Compl. ¶ 7. Not only that, but plaintiff’s gender transition

was disclosed to the incarcerated male population at GMCF, further

jeopardizing his safety. Id. ¶ 8.

Beyond the day-to-day hostility Vannier faced at GMCF following his

transition, he began to struggle at work. Compl. ¶ 9. After presenting as a

male, plaintiff was denied a job opportunity after a supervisor told him that

he was not a “real man.” Id. Thereafter, plaintiff received an unfavorable

employment evaluation after he protested the intentional misgendering

perpetrated by his supervisors. Id. ¶ 9. All the while, plaintiff’s supervisors

assigned him tasks that were demeaning, dangerous, or both. Id.

3 Specifically, co-workers told Vannier he “was not a real man,” could not change his female

DNA, that he was an “offense to God.” Compl. ¶ 4. After presenting as a man at GMCF, plaintiff was

referred to by co-workers and supervisors with derogatory terms such as “add a dick to me,” “cunt,”

“dyke,” “queer,” and “faggot.” Id. ¶ 5.

In response, Vannier lodged complaints with his GMCF supervisors and

his union representation regarding the adverse and hostile treatment.

Compl. ¶ 11. But plaintiff’s complaints were ignored. Id. GMCF was later

provided with on-site mandatory LGBTQ+ anti-discrimination training. Id. ¶

12. However, during the training, the anti-discrimination trainer actually

ended up ridiculing and “out[ing]” plaintiff. Id. ¶ 12.

Vannier began to experience anxiety related to the harassment and

discrimination he experienced on a daily basis at GMCF. Comp. ¶ 13. By

April 2021, plaintiff’s anxiety escalated to the point where his blood pressure

was significantly elevated despite having no history of cardiovascular issues.

Id. ¶ 14. Plaintiff’s doctors concluded that his high blood pressure was

correlated to his stress. Id. ¶¶ 14, 116. As a result, plaintiff was ordered to

take a short-term medical leave and was not permitted to return until his

blood pressure decreased. Id.

In May 2021, Vannier was able to return to work at GMCF. Compl. ¶¶ 15,

117. But the hostility plaintiff faced at GMCF continued through the end of

2021 and into early 2022. Id. ¶¶ 15, 18–19.4 As a result, plaintiff’s anxiety

and high blood pressure returned. Id. Then, in February of 2022, plaintiff

suffered a heart attack. Id. Afterwards, plaintiff’s doctors informed him that

4 But plaintiff only alleges harassment in late 2021 and early 2022 perpetrated by inmates, not

staff. Compl. ¶ 118–119.

the heart attack was related to high levels of stress, and he was ordered to

take another leave of medical absence. Id. ¶ 16. But when Vannier

returned to GMCF, he faced the same gender identity-based hostility as

before. Compl. ¶ 17.

On August 4, 2022, Vannier suffered a major anxiety attack when various

GMCF supervisors assigned him duties which placed him in physical

jeopardy. Compl. ¶ 18. When plaintiff later protested this assignment, he

was re-assigned to work on prisoner logs out of a room at GMCF that was

uninhabitable.5 Id. Plaintiff later informed a co-worker that he intended to

protest this re-assignment due to the condition of his workspace. Id. Soon

after, plaintiff’s supervisors threatened to terminate his employment if he

filed any grievances with his union.6 Id. ¶ 19.

During this major anxiety attack, plaintiff’s symptoms included a racing

heart, chest pain, difficulty breathing, and dizziness. Compl. ¶ 19. Vannier

then sought immediate medical attention. Id. Since that day, plaintiff has

been unable to work, and NYSDOCCS terminated his employment. Id. ¶ 21.

5 Vannier was re-assigned to a room in the back of the GMCF facility to work on prisoner

activity logs. Compl. ¶ 138. When Vannier first visited this room, he noted that the floors, walls,

and furniture were covered in bird feces. Id. ¶ 139. There was no running water nor a usable

bathroom. Id. The room was infested with insects, there was black mold on the walls, and human

feces on the floor. Id. And because the furniture was covered in bird feces, Vannier had no desk or

chair from which to work. Id.

6 Presumably, plaintiff told a co-worker that he intended to file a grievance with the union

protesting the physically precarious assignment that he was prescribed.

Plaintiff continues to experience anxiety and depression related to the

hostility and harassment he faced at GMCF. Id. ¶ 22.

On October 10, 2022, Vannier filed a complaint with the Equal

Employment Opportunity Commission (the “EEOC”).7 Dec. of Powhida, Dkt.

No 11-3 at 1. On December 8, 2023, the EEOC issued Vannier a right to sue

letter. Id. This lawsuit followed.

III. LEGAL STANDARD

A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction under

Rule 12(b)(1) when the district court lacks the statutory or constitutional

power to adjudicate it.” Forjone v. Dep’t of Motor Vehicles, 414 F. Supp. 3d

292, 297–98 (N.D.N.Y. 2019) (cleaned up). Rule 12(b)(1) motions may be

either facial or fact-based. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56

(2d Cir. 2016).

Facial Rule 12(b)(1) motions are “based solely on the allegations of the

complaint . . . and exhibits attached to it[.]” Id. To resolve a facial motion,

7 Notably, plaintiff neither refers to the date of their EEOC complaint in the complaint nor have

they attached a copy of it as an exhibit. Defendants have instead appended plaintiff’s EEOC

complaint to their moving papers. Under Rule 12, courts may consider extraneous documents

“[where] the plaintiff has actual notice of all the information in the movant’s papers and has relied

upon these documents in framing the complaint[.]” Chambers v. Time Warner, Inc., 272 F.3d 147,

153 (quoting Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)). Here, plaintiff is

most certainly on notice of their own EEOC complaint. Thus, plaintiff’s EEOC complaint may be

properly considered by the Court for the purpose of this motion to dismiss.

the district court must “determine whether the pleading alleges facts that

affirmatively and plausibly suggest that the plaintiff has standing to sue.”

Id. (cleaned up). In doing so, the district court “must accept the complaint’s

allegations as true and draw all reasonable inferences in favor of the

plaintiff.” Wagner v. Hyra, 518 F. Supp. 3d 613, 623 (N.D.N.Y. 2021) (quoting

Nicholas v. Trump, 433 F. Supp. 3d 581, 586 (S.D.N.Y. 2020)).

By contrast, a defendant who makes a fact-based Rule 12(b)(1) motion

submits extrinsic evidence. Carter, 822 F.3d at 57. If defendant’s extrinsic

evidence reveals a dispute of fact whether jurisdiction is proper, plaintiff

must proffer evidence to controvert defendant’s evidence. Id. To resolve a

fact-based motion, the district court must then make findings of fact to

determine whether plaintiff has standing to sue. Id.

B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual

allegations must be enough to elevate the plaintiff’s right to relief above the

speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So

while legal conclusions can provide a framework for the complaint, they must

be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). In short, a complaint must contain “enough facts to state a

claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

To assess this plausibility requirement, the court must accept as true all of

the factual allegations contained in the complaint and draw all reasonable

inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94

(2007). In doing so, the court generally confines itself to the facts alleged in

the pleading, any documents attached to the complaint or incorporated into it

by reference, and matters of which judicial notice may be taken. Goel v.

Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.

v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).

IV. DISCUSSION

Vannier’s complaint sets forth claims under Title VII and the NYSHRL for

(1) retaliation; (2) a hostile work environment; and (3) constructive

discharge.8 Compl. ¶¶ 1–172. Defendants have moved to partially dismiss

Vannier’s complaint on jurisdictional grounds. Defs.’ Mem., Dkt. No. 11-2.

Specifically, defendants argue that (1) this Court lacks subject matter

jurisdiction over plaintiff’s state-law claims because defendants are immune

from suit in federal court for state law claims under the Eleventh

Amendment; (2) that any portion of plaintiff’s Title VII claims arising out of

8 Plaintiff’s complaint is not particularly transparent as to what legal theories he is pursuing

under Title VII or NYSHRL. The complaint lists two counts: gender-based discrimination under

Title VII and NYSHR, respectively. Upon review, in addition to plaintiff’s discrimination claim, it is

clear from the complaint that plaintiff is pleading a hostile work environment claim and a

constructive discharge claim. And while murkier, it also appears that plaintiff brings a retaliation

claim. Accordingly, the Court will review this as four distinct claims for 1) discrimination, 2)

constructive discharge, 3) a hostile work environment, and 4) disparate treatment.

acts of discrimination that occurred greater than three hundred days before

plaintiff filed his complaint with the EEOC must be dismissed; and (3) that

any portion of plaintiff’s NYSHRL claims arising out of acts of discrimination

that occurred greater than three hundred days before plaintiff filed his

complaint with the EEOC must be dismissed. Def.’s Mem., Dkt. No. 11-2 at

5–11.

A. NYSHRL Claims

As a threshold matter, defendants argue that the Court lacks subject

matter jurisdiction to adjudicate Vannier’s NYSHRL. Defs.’ Mem., Dkt. No.

11-2 at 2, 5–7. The Court agrees.

State governments and their agencies may not be sued in federal court

unless they waive their Eleventh Amendment immunity or Congress validly

abrogates that immunity. Panagopoulos v. New York State Dep't of

Transportation, 172 F. Supp. 3d 597, 627 (N.D.N.Y. 2016) (quoting Woods v.

Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.

2006)).

New York State has not waived its Eleventh Amendment immunity with

respect to the NYSHRL, nor has it consented to suit in federal court.

Muslom v. Sagamore Children’s Psychiatric Ctr., 2024 WL 3431959, at *10

(E.D.N,Y. July 15, 2024) (collecting cases). NYSDOCCS and, by virtue,

GMCF, are agencies of the State of New York. See e.g., Nicholas v. Tucker,

89 F. Supp. 2d, (S.D.N.Y. 2000).

Therefore, defendants are immune from suit in federal court for

NYHSHRL claims. Moreover, in his opposition papers, plaintiff appears to

consent to the dismissal of their NYSHRL claims with the desire to re-file

them in state court. Pl’s Opp’n, Dkt. No. 14 at 1, 17. Accordingly, each of

plaintiff’s NYSHRL claims (Counts IV, V, and VI) will be dismissed.9

B. Timeliness of Plaintiff’s Title VII Claims

Next, defendants argue broadly Vannier’s Title VII claims must be

dismissed as untimely.10 Defs.’ Mem. at 1–2, 7–11. Plaintiff opposes. Dkt.

No. 14.

Title VII provides that it is “an unlawful employment practice for an

employer . . . to discriminate against any individual with respect to his

9 Defendants separately argue that plaintiff’s NYSHRL claims should be dismissed because they

were not brought within the relevant statute of limitations period. Defs.’ Mem, Dkt. No. 11-2 at 1–2,

11. Because these state law claims will be dismissed on account of another jurisdictional bar, the

Court need not reach this argument.

10 Defendants moving papers are somewhat unclear. While defendants have filed a partial

motion to dismiss, they broadly urge the Court to find Vannier’s “Title VII” claims untimely.

Defendants have not specifically addressed plaintiff’s constructive discharge claim. Insofar as

defendants mean to move for dismissal of plaintiff’s constructive discharge claim, that motion will be

denied. Plaintiff’s constructive discharge claim is timely. To bring a constructive discharge claim

under Title VII, a plaintiff must plausibly allege that: (1) they were discriminated against by their

employer to the point where a reasonable person in the same position would have felt compelled to

resign and (2) they actually resign. Green v. Brennan, 578 U.S. 547, 555 (2016). Plaintiff alleges

that on August 4, 2022, he was assigned to work on prisoner logs books in a room containing mold

and feces with no usable furniture. Compl. ¶ 18. Thus, plaintiff has plausibly alleged that a

reasonable person in his position would have felt compelled to resign. Plaintiff never returned to

GMCF after that day and was terminated. Compl. ¶ 19. Accordingly, insofar as defendants’ intended

to dismiss plaintiff’s claim of constructive discharge, it will be denied.

compensation, terms, conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–

2(a)(1). As the Supreme Court clarified in Bostock v. Clayton Cnty., where an

employer discriminated against an employee because they are transgender,

the employer has discriminated against that person on the basis of their sex.

590 U.S. 644, 662 (2020).

Importantly, Title VII imposes a time limit by which plaintiffs must bring

their claims: plaintiffs bringing Title VII claims based upon discrete

discriminatory or retaliatory acts must file them within the appropriate time

period set forth in 42 U.S.C. § 2000e–5(e)(1). Nat'l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 122 (2002). In New York State, an aggrieved party

must file a charge with the EEOC within 300 days of the occurrence of an

unlawful discrimination practice. Morris v. New York State Police, 268

F.Supp.3d 342, 364 (N.D.N.Y. 2017).

Defendants broadly argue that Vannier’s discrimination, hostile work

environment, and retaliation claims arise from acts or events that transpired

greater than 300 days prior to plaintiff filing his discrimination charge with

the EEOC. Defs.’ Mem. at 1–2, 7–11. Plaintiff argues in opposition that their

Title VII claims are timely.11 Dkt. No. 14.

11 Plaintiff solely argues with specificity why their Title VII claims are timely with respect to

their hostile work environment claims and constructive discharge claims. Pl’s Opp’n at 8.

To establish a claim for gender discrimination under Title VII, a plaintiff

must plausibly allege: 1) they belonged to a protected class; 2) they were

qualified for a position; 3) they suffered an adverse employment action; and

4) the adverse employment action occurred under circumstances giving rise to

an inference of discriminatory intent. Terry v. Ashcroft, 336 F.3d 128, 138

(2d Cir. 2003). However, for the purposes of this motion, the inquiry is

centered upon timeliness.

Upon review, plaintiff’s Title VII claim for discrimination will be

dismissed as untimely. Plaintiff filed his EEOC claim on October 10, 2022.

Therefore, the statutory period during which plaintiff may base his

discrimination claim begins on or after December 14, 2021. Plaintiff has not

alleged that he suffered any adverse employment actions on or after

December 14, 2021. Instead, plaintiff has pleaded facts which occurred prior

to December 14, 2021. These facts constitute discrete acts and are barred.

Morgan, 536 U.S. at 122; Morris v. New York State Police, 268 F. Supp. 3d

342, 364. Therefore, plaintiff’s discrimination claim is untimely.

Accordingly, plaintiff’s discrimination claim will be dismissed.

Next, defendants argue that Vannier’s retaliation claim is also untimely.

Defs.’ Mem. at 7–11. Plaintiff does address the timeliness of his retaliation

claim in his opposition papers. Pl.’s Opp’n at 8–17.

Upon review, Vannier’s retaliation claim will be dismissed. Plaintiff has

not alleged that he participated in any protected activity. See, e.g., Lore v.

City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012) (holding that to establish a

prima facie case of retaliation under Title VII, an employee must show (1) she

was 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). Protected activity is the crux of a retaliation claim. Id. Here,

plaintiff has not alleged that he engaged in protected activity during the

statutory period and thus, has failed to state a plausible retaliation claim.

Id. Accordingly, plaintiff’s retaliation claim will be dismissed.

Lastly, defendants argue that Vannier’s hostile work environment claim is

similarly untimely. Defs.’ Mem. at 9–11. In opposition, plaintiff argues that

his Title VII claims are timely because the harassment or discrimination he

suffered prior to the statutory period were part of an ongoing hostile work

environment at GMCF and constitute a continuing violation. Pl’s Opp’n at 8.

As stated supra, plaintiffs bringing Title VII claims based upon discrete

discriminatory or retaliatory acts must file them within the appropriate time

period set forth in 42 U.S.C. § 2000e–5(e)(1). Morgan, 536 U.S. at 122.

However, there are exceptions to this rule.

One such exception is a claim for a hostile work environment: under Title

VII, a hostile work environment is one which is “permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an

abusive work environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993). Unlike claims based on discrete acts of discrimination or retaliation,

hostile work environment claims are often comprised of a “mosaic” of acts,

that, in the aggregate, alter the conditions of the plaintiff’s work

environment. Id. Where a plaintiff brings a hostile work environment claim

premised on a series of acts that are part of the same ongoing, discriminatory

employment practice and at least one act falls inside of the statutory period,

the reviewing court may consider all of the acts. Morgan, 536 U.S. at 122

(emphasis added); King v. Aramark Services, 96 F.4th 546, 561 (2d Cir. 2024).

Upon review, Vannier’s hostile work environment claims under Title VII

are timely. Plaintiff has alleged that he suffered a series of discriminatory

acts of intimidation, ridicule, and insults that occurred prior to December 14,

2021. See Compl. ¶¶ 1–172. Plaintiff also alleges that he suffered at least

one other act took place on or after December 14, 2021 when defendants re-

assigned plaintiff to an unsuitable workspace littered with feces and mold

without any usable furniture, bathroom, or running water. Id. ¶¶ 138–139.

Thus, plaintiff has alleged that defendants subjected him to an ongoing

discriminatory employment practice that went on from at least 2018 until

2022. As such, the Court may consider the entirety of plaintiff’s allegations

as they constitute a continuing violation. See Morgan, 536 U.S. at 122. In

consideration of all of plaintiff’s factual allegations, the Court finds that

plaintiff has plausibly alleged that he endured a hostile work environment at

GMCF. Accordingly, defendants’ motion to dismiss plaintiff’s hostile work

environment claim will be denied.

V. CONCLUSION

Therefore, it is

ORDERED that

1. Defendants’ partial motion to dismiss plaintiff’s complaint (Dkt. No. 11)

is GRANTED in part and DENIED in part;

2. Defendant’s motion to dismiss plaintiff’s claim for discrimination under

Title VII is GRANTED;

3. Defendant’s motion to dismiss plaintiff’s claim for retaliation under

Title VII is GRANTED;

4. Defendant’s motion to dismiss plaintiff’s claim for hostile work

environment under Title VII is DENIED;

5. Defendant’s motion to dismiss plaintiff’s claim for constructive

discharge under Title VII is GRANTED;

6. Plaintiff’s complaint (Dkt. No. 1) is DISMISSED as to all claims aside

from the hostile work environment and constructive discharge claims under

Title VII; and

4. Defendant shall file and serve and answer to Plaintiff's remaining

claims on or before February 18, 2025.

The Clerk of the Court is directed to terminate the pending motion.

IT IS SO ORDERED.

David N.fHurd

U.S. Disfrict Judge

Dated: January 30, 2025

Utica, New York.

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