Parke v. Assist Ambulance

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARCIA PARKE,

Plaintiff,

MEMORANDUM AND ORDER

-against- 23-CV-09066 (OEM) (CLP)

ASSIST AMBULANCE,

Defendant.

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ORELIA E. MERCHANT, United States District Judge:

Plaintiff Marcia Parke (“Plaintiff”) commenced this action against her former employer

Defendant Assist Ambulance (“Defendant”), asserting claims of gender and racial discrimination,

retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. §§ 2000e–2000e-17, 42 U.S.C. § 1981 (“Section 1981”), and the New York State

Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq. Complaint (“Compl.”), ECF 1.

Before the Court is Defendant’s fully briefed motion to dismiss. For the following reasons,

Defendant’s motion to dismiss is GRANTED.

BACKGROUND

A. Factual Background1

Plaintiff is an African American woman. Compl. ¶¶ 38, 45. On or about June 11, 2018,

Defendant hired Plaintiff as an Emergency Medical Technician (“EMT”) in its Brooklyn, New

York location to transport and provide care to patients and to assist paramedics. Id. ¶ 14. Plaintiff

alleges that her supervisors “followed her more than they followed other employees” and that her

co-workers “always noticed that they were followed more than usual when [they were] working

with [her].” Id. ¶¶ 16, 17. Plaintiff further alleges that she “did not have to work as hard when

1 For the purpose of ruling on the motion to dismiss, the following facts are accepted as true.

she worked on Saturdays with a white female employee” and that her workload “was significantly

reduced when the white female was her partner.” Id. ¶ 18.

Plaintiff alleges that, on or about December 23, 2020, she had spilled coffee on her shirt

on her way to work and that because the shirt was soaked, she removed it. Id. at 21. While Plaintiff

was at work, her supervisor Jason Cohen (“Cohen”) asked her whether she was wearing a work

uniform shirt under her jacket. Id. Plaintiff was wearing a “low-cut” t-shirt under her jacket, and

she responded that she was not wearing a uniform shirt. Id. She states that Cohen could have seen

that she was not wearing her work uniform, but Cohen nonetheless asked that she unzip her jacket

so that he could confirm Plaintiff was not wearing a work uniform shirt and “insisted [that] she

unzip her jacket more so he could see more.” Id. Plaintiff alleges that Cohen asked her to unzip

her jacket a “third time” thereby “exposing part of her [upper] breast.” Id.

Later that day, Plaintiff met with Cohen, Assistant Ambulance employees Carey Peguese,

and Carlos2 where she was informed that she would be suspended. Compl. ¶ 22. Plaintiff alleges

she confronted Cohen and told the other supervisors about what happened earlier that day. Id. The

other supervisors then told her that she was no longer suspended. Id. Plaintiff alleges that she

never returned to work after that day and instead started working for another employer. Id.

Plaintiff contends that Assist Ambulance indicated that she had violated the company’s

standard operating procedures and required that she complete a protocol update coursework by

December 28, 2020, or she would be placed on disciplinary probation for 90 days. Id. ¶ 27. She

was later advised by another employee that her failure to complete the course work by December

29, 2020, would result in her termination. Id. ¶¶ 27-29. Plaintiff did not complete the coursework

2 Plaintiff did not provide a last name for this individual in her complaint.

and “did not answer [Assist Ambulance’s] email to her” because “she had no intention of returning

to Assist Ambulance.” Id. ¶¶ 24, 27.

According to Plaintiff, on December 28, 2020, she complained by e-mail to the human

resources department of Assist Ambulance about “ongoing harassment” over the preceding

months, including that Cohen had sexually assaulted her on December 23, 2020, that she was

receiving more calls than other EMT employees working for Assist Ambulance, that her supervisor

“clocked her out before [she had] return[ed] to base,” and that she was disciplined for arriving late

at work while others who also arrived late were not disciplined. Compl. ¶ 26.

Plaintiff asserts that “her employment record was not bad” and in fact Defendant “tried

several times to keep [her] on the job.” Compl. ¶ 28. Further, she alleges that “Assist [Ambulance]

was exaggerating about her employment record because she [had] complained about her check and

Cohen.” Id. Plaintiff alleges that that she left Assist Ambulance on December 23, 2020. 3 Id. ¶

22.

1. NYSHDR Complaint

On October 19, 2021, Plaintiff filed a complaint against Defendant and Jason Cohen4 with

the New York State Division of Human Rights (the “NYSDHR Complaint”), “charg[ing]

respondents [Defendant and Cohen] with an unlawful discriminatory practice relating to

employment because of sex, in violation of NYSHRL Section 296 . . . [and] Title VII.” Compl.

Ex. B. at 21. On the form complaint, as the basis of alleged discrimination, Plaintiff only checked

“sex” that involved “sexual harassment” and checked “suspended me” for the acts of alleged

discrimination. Def’s Mot. Ex. B at 2. Plaintiff did not check a box on the form in response to the

3 Plaintiff also asserts that she “was separated from [Defendant] for her failure to comply with” Defendant’s company

procedures and protocols. Compl. ¶ 25.

4 In the NYSDHR Complaint, Plaintiff spells Jason Cohen’s last name as “Choson.” Based on the complaint and

motion to dismiss papers, this appears to be a typographical error and refers to the same individual.

prompt that if claimant “believe[s] [he or she] were treated differently after [he or she] filed or

helped someone file a discrimination complaint, participated as a witness to a discrimination

complaint, or opposed or reported discrimination” to check the “retaliation” box and explain “how

did [they] oppose discrimination.” Id.

On the NYSDHR Complaint, Plaintiff provided the following narrative description of the

alleged discrimination:

My name is Marica Parke[.] I worked for Assist Ambulance [for] 2+ years as an

[EMT]. I am writing about an incident that happened and I deemed it inappropriate.

On the morning of December 23, 2020, while on duty, I was approached by my

supervisor Jason [Cohen], who asked me if I had uniform shirt on[.] I told him no,

he asked what am I wearing? I explained to Jason that I was wearing a blouse.

[H]e then asked me what kind? I told him the kind (blouse). He went asking me

what color? I told him gray, [but] he insisted that I unzip my jacket. As I unzip my

jacket enough for him to see my blouse[,] [h]e told me to pull down my zipper

more[.] I reluctantly unzip[ed] my zip because I felt bullied. He also threate[ne]d

me saying ‘after this call I needed to go back to the office and I should wait and

see[.]’ I felt very disrespect[ed] and violated that my boss has used his power to

intimidate me and then took me back to base to humiliated me.

While I was back at bas[e], Mr. [Cohen] threatened to suspend me, but after I made

him aware of what he was doing [] was wrong and I explained to him how I felt he

withdrew his t[h]reat. I love my job[,] however, ethically thinking this doesn't feel

right what Mr. [Cohen] did. Until this day I struggled with the fact that I can’t even

work as an EMT. As a kid I went through similar situation, [and] I feel no one [is]

ever being [held] accountable for what they do to me. A meeting was held to

discuss the matter and they made me feel like I was wrong. These are some of the

reasons I struggle every day as I try to cope with my pass.

To conclude my statement, if Mr. Cohen had asked me why I wasn’t wearing my

uniform shirt he would have realized that I had my shirt in my car after I spilt coffee

on it while driving to work that morning and had to put on a gray shirt I had in my

car. Also, when I got to work no supervisor was at work at that time.

Def’s Mot. Ex. B at 6.

On June 21, 2023, NYSHDR issued its determination and order after an investigation,

finding that there was “NO PROBABLE CAUSE to believe that the respondents ha[d] engaged in

or are engaging in the unlawful discriminatory practice complained.” Compl. Ex. B at 21.

NYSDHR determined that Plaintiff “d[id] not present any allegations that demonstrate [Assist

Ambulance] and [Cohen]’s actions toward her in regard to her uniform inspection were because

of her sex or were in any way gender-based.” Id. at 22. NYSDHR instead found that Defendant

and Cohen’s action toward Plaintiff “regarding checking her uniform was appropriate given that

all parties . . . confirmed [that] [Parke’s] clothing on that day was not in compliance with [Assist

Ambulance’s] uniform policy[.]” Compl. Ex. B at 22. NYDSHR states that Plaintiff “d[id] not

contest [that] she was not wearing the required uniform.” Id. at 23. As such, NYDSHR “dismissed

[the case before it] as having no probable cause of discrimination on the basis of sex occurred.”

Id. at 23.

2. EEOC Complaint

Plaintiff also filed a NYSHDR Complaint with the U.S. Equal Employment Opportunity

Commission (EEOC), alleging violations of Title VII. See Compl. Ex. B; Def’s Mot., Exs. B, C.

On September 5, 2023, the EEOC issued a letter to Plaintiff informing her that it declined to further

investigate her claims and made no finding as to the merits of her claims. See Compl. Ex. A. The

letter also informed Plaintiff that the EEOC dismissed her charge and provided her notice of her

right to sue in court. Id.

B. Procedural History

Plaintiff initiated this action on December 8, 2023, by filing a pro se complaint under Title

VII, Section 1981, and NYSHRL, asserting claims for discrimination and retaliation on the basis

of sex and race. See Compl. Plaintiff attached as exhibits to her complaint: (1) a “determination

and notice of rights” letter issued by the EEOC on September 5, 2023, in which EEOC dismissed

her charge and informed her of her rights to sue in court (Exhibit A), and (2) the New York State

Division of Human Rights’ “determination and order after investigation” informing that the

division found no probable cause to her allegations and therefore dismissed her complaint (Exhibit

B). Plaintiff seeks compensatory and punitive damages, declaratory judgment, costs, and any other

relief by the Court. Id.

The Court set a briefing schedule on Defendant’s motion to dismiss. See April 29, 2024

and May 29, 2024 Orders. An attorney filed a notice of appearance of counsel on behalf of Plaintiff

on May 29, 2024. Notice of Appearance on behalf Plaintiff (“Notice of Appearance”), ECF 16.

Defendant filed its motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for

failure to state claims on which relief can be granted, supported by a memorandum of law, the

declaration of Joseph Anci, and accompanying exhibits.5 Plaintiff opposed the motion to dismiss,

Plaintiff’s Response in Opposition (“Pl’s Opp.), ECF 19, and Defendant filed a reply, Def’s Reply,

ECF 24.

LEGAL STANDARDS

To survive a motion to dismiss under Rule 12(b)(6), “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 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Hogan

v. Fischer, 738 F.3d 509, 514 (2d Cir. 2013). Federal Rule of Civil Procedure 8(a)(2) requires

only that a complaint contain “a short and plain statement of the claim[.]” FED. R. CIV. P. 8(a)(2).

“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.” Iqbal, 556

U.S. at 678; Hogan, 738 F.3d at 514. “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.”

5 Defendant’s Notice of Motion to Dismiss, ECF 21; Defendant’s Memorandum of Law in Support of Motion to

Dismiss (“Def’s Mot.”), ECF 22; Declaration of Joseph Anci (“Anci Decl.”), ECF 23; Complaint, Anci Decl., Exhibit

A (“Def’s Mot. Ex. A”), ECF 23-1; NYSDHR Complaint, Anci Decl., Exhibit B (“Def’s Mot. Ex. B”), ECF 23-2;

NYSDHR’s Determination and Order, Anci Decl., Exhibit C (“Def’s Mot. Ex. C”), ECF 23-3.

Iqbal, 556 U.S. at 678. “[T]he tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; see also Pension

Benefit Guar. Corp., 712 F.3d at 717 (a court is “not bound to accept as true a legal conclusion

couched as a factual allegation.”) (internal quotation marks omitted). “While legal conclusions

can provide the framework of a complaint, they must be supported by factual allegations.” Pension

Benefit Guar. Corp. ex rel. St. Vincent Cath. Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt.

Inc., 712 F.3d 705, 717 (2d Cir. 2013).

In considering a motion to dismiss for failure to state a claim, courts “may consider the

facts alleged in the complaint, documents attached to the complaint as exhibits, and documents

incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111

(2d Cir. 2010). In employment discrimination cases, courts may consider filings with state

administrative agencies or the EEOC to the extent that a complaint necessarily rests upon them.

See Littlejohn v. City of New York, 795 F.3d 297, 305 n.3 (2d Cir. 2015) (“‘It is proper for this

court to consider the plaintiff’s relevant filings with the EEOC’ and other documents related to the

plaintiff’s claim . . . so long as those filings are . . . ‘integral to’ and ‘solely relied’ upon by the

complaint.”) (quoting Holowecki v. Fed. Express Corp., 440 F.3d 558, 565–66 (2d. Cir. 2006))

(cleaned up). Likewise, a court may consider exhibits attached to a motion to dismiss that are

incorporated in the complaint but not attached to the complaint and which Plaintiff had actual

notice without converting the motion into a motion for summary judgment. Cortec Indus., Inc. v.

Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).

Generally, a court must treat the submissions of pro se plaintiffs “to less stringent standards

than formal pleadings drafted by lawyers” and must “read the pleadings of a pro se plaintiff

liberally and interpret them ‘to raise the strongest arguments that they suggest.’” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, courts “remain

obligated to construe a pro se complaint liberally”).

In this case, Plaintiff commenced this action as pro se, see Compl., but before the parties

briefed the motion to dismiss, an attorney entered an appearance on her behalf in this action and

subsequently signed and filed Plaintiff’s opposition to Defendant’s motion to dismiss. See Notice

of Appearance; Pl’s Opp. at 2, 12. Thus, Plaintiff’s opposition papers need not be given the liberal

reading afforded a pro se party. Cf. Ibok v. Sector, 05-CV-6584, 2006 WL 302336, at *1, n.1

(S.D.N.Y. Feb. 9, 2006) (“The Court may consider the factual allegations in plaintiff’s Response

to supplement those in his complaint because of the liberal standard afforded to the pleadings of

pro se litigants.”); Rosario v. New York City, 12-CV-4795, 2013 WL 2099254, at *1-2 n. 1

(S.D.N.Y. May 15, 2013) (“[B]ecause [plaintiff] is proceeding pro se, the Court also considers

factual allegations contained in [his] two submissions in opposition to defendants' motion to

dismiss, to the extent consistent with the Complaint.”).

On a Rule 12(b)(6) motion to dismiss in an employment discrimination case, the three-step

burden-shifting framework articulated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973), is inapplicable. Buon v. Spindler, 65 F.4th 64, 79 (2d Cir. 2023); Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 79 (2d Cir. 2015) (emphasis added) (“[O]ur decision in

Littlejohn [v. City of New York, 795 F.3d 297 (2d Cir. 2015)] makes clear that a plaintiff is not

required to plead a prima facie case under McDonnell Douglas, at least as the test was originally

formulated, to defeat a motion to dismiss.”). This is because McDonnell Douglas framework “is

an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506,

510 (2002). Thus, a plaintiff need not plead facts or carry a burden of presenting evidence

establishing a prima facie case that she might ultimately bear under McDonnell Douglas at

summary judgment because “the precise requirements of a prima facie case can vary depending

on the context,” and “[b]efore discovery has unearthed relevant facts and evidence, it may be

difficult to define the precise formulation of the required prima facie case in a particular case.” Id.

at 511, 512 (contemplating the possibility that discovery may produce direct evidence of

discrimination, rending McDonnell Douglas burden-shifting framework inapplicable at summary

judgment). Instead, a plaintiff need only satisfy the plausibility requirement to withstand a motion

to dismiss.

Absent direct evidence of discrimination, “what must be plausibly supported by facts

alleged in the complaint is that the plaintiff [(1)] is a member of a protected class, [(2)] was

qualified, [(3)] suffered an adverse employment action, and [(4)] has at least minimal support for

the proposition that the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at

311; see Buon, 65 F.4th at 79 (holding same). This is not to say that a plaintiff bears no burden at

the pleading stage. “At the pleadings stage of an employment discrimination case, a plaintiff has

a minimal burden of alleging facts suggesting an inference of discriminatory motivation,” meaning

that “the facts alleged in the complaint must provide at least minimal support for the proposition

that the employer was motivated by discriminatory intent.” Vega, 801 F.3d at 85.

DISCUSSION

A. Plaintiff’s Retaliation Claims under Title VII, NYSHRL, and Section 1981

1. Title VII Retaliation Claim Was Not Administratively Exhausted

Defendant argues that the retaliation claim brought under Title VII should be dismissed

because Plaintiff failed to exhaust her remedies at the administrative level. See Def’s Mot. at 4-7.

Before bringing suit under Title VII, a plaintiff must first file a timely charge with the EEOC or

with a “[s]tate or local agency with authority to grant or seek relief from such practice.” 42 U.S.C.

§ 2000e–5(e)(1); Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (holding that a

plaintiff asserting Title VII claims must first present these claims in a complaint before EEOC or

the appropriate state agency and must subsequently “receive a ‘Notice of Right to Sue’ letter from

the EEOC”). “Exhaustion is ordinarily ‘an essential element’ of a Title VII claim.” Williams, 458

F.3d 67 at 70 (quoting Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir.

2001)). “The purpose of this exhaustion requirement is to give the administrative agency the

opportunity to investigate, mediate, and take remedial action.” Fowlkes v. Ironworkers Local 40,

790 F.3d 378, 384 (2d Cir. 2015). Claims that were not included in EEOC charge or complaint

before an administrative agency may nonetheless be asserted in subsequent action in court in only

three situations: (1) where the claims “fall within the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of discrimination;” (2) where the claims allege

retaliation for filing an EEOC charge; or (3) where the claims allege “further incidents of

discrimination carried out in the same manner alleged in precisely the EEOC charge.” Carter v.

New Venture Gear. Inc., 310 F. App’x 454, 455 (2d Cir. 2009); see also Williams, 458 F.3d 67 at

70. The first category “is essentially an allowance of loose pleading[,] and is based on the

recognition that EEOC charges frequently are filled out by employees without the benefit of

counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff

claims [s]he is suffering.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003). Courts must focus

“on the factual allegations made in the EEOC charge itself” and whether they “gave that agency

adequate notice to investigate” the claims subsequently asserted in federal court. Williams, 458

F.3d at 70.

Here, Plaintiff’s NYSHDR Complaint, which was also filed with the EEOC, only raised

claims of gender discrimination. In that complaint, Plaintiff asserted that the alleged

discrimination was based on “sex” and “sexual harassment” and did not check “retaliation” in the

form. Upon its review of the NYSHDR Complaint, the EEOC characterized the “basis for

discrimination” as “sex” and nowhere concluded that that the events described also supported a

claim for retaliation. Def’s Mot. Ex. B at 15. The NYSDHR Complaint states that, after Cohen

found her not wearing her uniform, he “threatened to suspend [her]” but that he “withdrew his

treat.” Def’s Mot. Ex. B. at 6. Based on that single allegation in the NYSDHR Complaint, it is

not reasonable to conclude that this would have prompted an investigation into possible claims of

retaliation.

And none of the three exceptions apply here. Plaintiff does not allege retaliation for filing

an EEOC charge or further incidents of discrimination. Further, the antidiscrimination provision

and antiretaliation provision in Title VII serve different purposes. Burlington N. & Santa Fe Ry.

v. White, 548 U.S. 53, 63 (2006) (explaining that the antidiscrimination provision seeks to “prevent

injury to individuals based on who they are” while the antiretaliation provision seeks to “prevent

harm to individuals based on what they do”). Thus, these two provisions are “materially different”

and therefore are “not reasonably related.” Wilson v. Southampton Hosp., 14-CV-5884 (ADS)

(GRB), 2015 WL 5124481, at *10-11 (E.D.N.Y. Aug. 28, 2015) (dismissing the plaintiff’s Title

VII retaliation claims because she did not include the claims in her EEOC charge). Plaintiff has

therefore failed to exhaust her Title VII retaliation claim at the administrative level, and because

her retaliation claim is not reasonably related to her discrimination claim, the exceptions to the

administrative exhaustion requirements are inapplicable. Consequently, Plaintiff’s Title VII

retaliation claim is dismissed.

2. Plaintiff Has Not Stated Retaliation Claims under Section 1981 and

NYSHRL

At the motion to dismiss stage, a plaintiff must allege “(1) participation in a protected

activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action;

and (4) a causal connection between the protected activity and the adverse employment action.”

Littlejohn v. City of New York, 795 F.3d 297, 315-16 (2d Cir. 2015) (internal quotation marks

omitted).

Defendant argues that Plaintiff failed to plead both a protected activity and a causal

connection between any alleged adverse action and any purported protected activity. Def’s Mot.

at 5-6. Defendant argues that the only putative protected activity would be the NYSHDR

Complaint but that it was filed after Plaintiff was terminated. Id. Plaintiff responds by opposing

dismissal of her Section 1981 and NYSHRL racial discrimination claims, but does not address her

Section 1981 and NYSHRL retaliation claims. See Pl’s Opp. at 5, 6.

“Numerous courts in this District have held that a party’s failure to address an issue in its

response to a Rule 12(b)(6) motion ‘amounts to a concession or waiver of the argument.’” Piuggi

v. Good for You Prods. LLC, 739 F. Supp. 3d 143, 169 (S.D.N.Y. 2024) (quoting Francisco v.

Abengoa, S.A., 559 F. Supp. 3d 286, 318 n.10 (S.D.N.Y. 2021); see First Capital Asset Mgmt.,

Inc. v. Brickellbush, Inc., 218 F. Supp. 2d 369, 392-393 & n.116 (S.D.N.Y. 2002) (considering

argument waived where not addressed in opposition brief). Therefore, Plaintiff, who was

represented by counsel at the time, has waived any argument that she sufficiently pleaded

retaliation claims. Accordingly, Plaintiff’s retaliation claims under Section 1981 and NYSHRL

are dismissed.

B. Plaintiff’s NYSHRL Discrimination Claim

Defendant argues that Plaintiff’s discrimination claim under NYSHRL is barred by the

“election of remedies” provision under Section 297(9). Def’s Mot. at 7. The NYSHRL’s election

of remedies provision provides that if a person files a complaint with the NYSHDR alleging

discrimination, he or she thereby waives the right to assert that claim in court. See Moodie v.

Federal Reserve Bank of New York, 58 F.3d 879, 882 (2d Cir. 1995). It reads:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall

have a cause of action in any court of appropriate jurisdiction . . . unless such person

had filed a complaint hereunder or with any local commission on human rights . . .

provided that, where the division has dismissed such complaint on the grounds of

administrative convenience, on the grounds of untimeliness, or on the grounds that

the election of remedies is annulled, such person shall maintain all rights to bring

suit as if no complaint had been filed with the division.

NYS Executive Law § 297(9).

The provision applies equally in federal and state courts. See York v. Ass’n of the Bar of

City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002); see also McGullam v. Cedar Graphics, Inc., 609

F.3d 70, 74 n. 3 (2d Cir.2010) (“[A] state law depriving its courts of jurisdiction over a state law

claim also operates to divest a federal court of jurisdiction to decide the claim.”) (internal citation

and quotation marks omitted).

Here, the election of remedies bar requires dismissal of Plaintiff’s NYSHLR discrimination

claims. The NYSDHR Complaint asserted claims based on sex discrimination on the same set of

events as alleged in her complaint before this Court. NYSDHR investigated Plaintiff’s allegations

and found there was no probable cause to believe that Defendant and Cohen’s conduct constituted

sex discrimination. Consequently, Plaintiff’s NYSHRL claims are dismissed.6 See Higgins v.

6 Plaintiff summarily states that she was denied the opportunity to “present all the facts” by a human rights specialist.

Pl’s Opp. at 6. But Plaintiff’s argument ends there. The Court will not conjure up factual or legal support for a party’s

assertions in filings when that party is represented by counsel. See Lipton v. Cnty. of Orange, 315 F. Supp. 2d 434,

NYP Holdings, Inc., 836 F. Supp. 2d 182, 189 (S.D.N.Y. 2011) (barring NYSHLR claims under

election of remedies because they “emerge[d] from the exact same operative events” brought

before NYSDHR); see also Guardino v. Vill. of Scarsdale Police Dep’t, 815 F. Supp 2d 643, 646

(S.D.N.Y. 2011) (election of remedies bars claims that were “based on the same instance of

termination” that were previously charged at NYSHDR complaint).

C. Plaintiff’s Title VII Discrimination and Hostile Work Environment Claims

Plaintiff asserts a Title VII sex discrimination claim for harassment on numerous occasions,

including the December 23, 2020 incident involving Cohen. See Compl. Title VII makes it “an

unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge . . . or

otherwise to discriminate against any individual with respect to his [or her] compensation, terms,

conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e–

2(a)(1). To state a claim for discrimination under Title VII discrimination, a plaintiff must

plausibly allege “(1) she is a member of a protected class; (2) she is qualified for her position; (3)

she suffered an adverse employment action; and (4) the circumstances give rise to an inference of

discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015)

(citation omitted). To state a claim for hostile work environment, a plaintiff must plead facts that

would tend to show the complained of conduct: (1) “is objectively severe or pervasive—that it

creates an environment that a reasonable person would find hostile or abusive”; (2) creates an

environment “that the plaintiff subjectively perceives as hostile or abusive”; and (3) “creates such

an environment because of the plaintiff’s sex.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)

(citing Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir. 2001)) (cleaned up).

439 n.3 (S.D.N.Y. 2004); (finding that it is not the Court’s “responsibility, particularly in a counseled case, to form

[P]laintiff’s arguments for [her] by researching . . . relevant case law”).

Defendant argues that Plaintiff’s Title VII sex discrimination claims should be dismissed

because Plaintiff failed to allege how her sex played any role in her termination for violation of

company policy and because Plaintiff did not allege “a single sexist or gender-related comment by

anyone at Assist [Ambulance] that could plausibly be read as animus towards her sex.” Def’s

Memo at 11. Therefore, Defendant contends, her membership in a protected class, alone, is

insufficient to state a discrimination claim. Id. Defendant also argues that Plaintiff’s hostile work

environment claim should be dismissed because a single incident—Cohen’s request to unzip her

jacket—was not sufficiently severe or pervasive to sustain such a claim. Id.

Plaintiff’s opposition does not address Defendant’s argument for dismissal of her Title VII

claims and therefore Plaintiff has abandoned these claims. See Felix v. City of New York, 344

F.Supp.3d 644, 654 (S.D.N.Y. 2018) (“Courts may, and generally will, deem a claim abandoned

when a plaintiff fails to respond to a defendant’s arguments that the claim should be dismissed.”);

see also Flanag an v. Girl Scouts of Suffolk Cnty., Inc., 21-CV-7513, 2023 WL 6594885, at *8

(E.D.N.Y. Aug. 25, 2023) (finding that plaintiff’s failure to address an argument in opposition to

defendants’ motion to dismiss “amounts to a concession of th[e] argument”).

Moreover, Plaintiff has failed to sufficiently allege facts to plausibly support a minimal

inference of discrimination.7 Based on “the totality of the circumstances, including the severity of

the discriminatory conduct,” the allegations do not support a finding of hostile work environment

that was so severe or pervasive. See Littlejohn, 795 F.3d at 321. “Hostile work environment

claims are meant to protect individuals from abuse and trauma that is severe. They are not intended

to promote or enforce civility, gentility or even decency.” Bermudez v. City of N.Y., 783 F. Supp.

2d 560, 579 (S.D.N.Y. 2011). Indeed, to sustain a hostile work environment claim, “incidents

7 As stated in Legal Standard Section, McDonnell Douglas framework does not apply on a motion to dismiss. As

such, Defendant’s argument that Plaintiff failed to a make a prima facie case of discrimination is inapposite.

must be more than ‘episodic; they must be sufficiently continuous and concerted in order to be

deemed pervasive.’” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (citation omitted). Here,

Plaintiff has alleged a single “[i]solated act[], unless very serious, do[es] not meet the threshold of

severity or pervasiveness.” Id. But see Howley v. Town of Stratford, 217 F.3d 141, 154 (2d

Cir.2000) (vile and sexually explicit verbal abuse of a female firefighter that challenged her

competence, was witnessed by a large group that included her subordinates, and created a justified

fear that she would be left in peril at fire scenes).

D. Plaintiff’s Racial Discrimination Claim under Section 1981

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

the same right in every State and Territory to make and enforce contracts . . . and to the full and

equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by

white citizens[.]” 42 U.S.C. § 1981(a). “[T]he term ‘make and enforce contracts’ includes the

making, performance, modification, and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.S. § 1981(b).

Section 1981’s protections apply to employment relationships. See Patterson v. Cty. of Oneida,

375 F.3d 206, 224-25 (2d Cir. 2004). “To state a claim under Section 1981, a plaintiff must allege

facts in support of the following elements: (1) the plaintiff is member of a racial minority; (2) an

intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned

one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and

be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,

1087 (2d Cir. 1993) (citations omitted); accord Raymond v. City of New York, 317 F. Supp. 3d

746, 760 (S.D.N.Y. 2018).

Here, Plaintiff states that she is an African American EMT officer employed by Defendant.

She alleges that other employees “did not like working with [her] because they had to work harder

when they worked with her[,]” that her co-workers have “told [her that] their workload was always

heavier when they worked with [her].” Compl. ¶ 16. In her opposition, Plaintiff asserts that her

complaint “states that she was discriminated against[,]” that “other workers did not want to work

with her because the load was much heavier with her[,]” and that “her supervisor clocked her out

before she returned to base and her job day ended.” Pl’s Opp. at 6. Plaintiff therefore argues that

“[a] jury should decide” whether she was discriminated against and goes on to provide a litany of

case law and summary on the McDonnell Douglas decision without articulating why, in light of

this legal authority, her claim should not be dismissed. See Pl’s Opp. at 6-11. “A skeletal

argument, unsupported by relevant authority or reasoning, is merely an assertion which does not

sufficiently raise the issue to merit the court's consideration.” Alberti v. County of Nassau, 393 F.

Supp. 2d 151, 162, n. 1 (E.D.N.Y. 2005) (citations omitted); see also Painting v. City of Rochester,

2022 WL 16856662, at *3 (W.D.N.Y. 2022) (declining “to address . . . unsupported and skeletal

arguments . . . . It is not enough merely to mention a possible argument in the most skeletal way,

leaving the court to do counsel's work”). Thus, Plaintiff has abandoned her claim.

Even if Plaintiff had properly opposed dismissal of her disparate treatment claim, the claim

still must fail. Plaintiff has not alleged any facts from which the Court could infer that racial

animus was the motivating factor for Defendant’s actions, and she has not alleged, even in a

conclusory fashion, that the actions were motivated by race. Jenkins v. Arcade Bldg. Maint., 44

F.Supp.2d 524, 528 (S.D.N.Y.1999); Dickerson v. State Farm Fire & Cas. Co, 95-CIV-10733

(MBM), 1996 WL 445076, at *3 (S.D.N.Y. Aug. 1, 1996) (“It is not enough merely to assert that

the defendant took adverse action against the plaintiff, and that the action was the product of racial

animus. The complaint must allege specific facts supporting both the existence of the racial animus

and the inference of a link between the adverse treatment and the racial animus.”). Further, “a

complaint that identifies other possible motives”—here, Plaintiff’s violations of company

procedures—“combined with a lack of specific factual support of racial animus, contradicts a

claim of racial discrimination.” Hicks v. IBM, 44 F. Supp. 2d 593, 598 (S.D.N.Y. 1999)

Plaintiff’s allegations that she was treated less favorably than her white counterparts also

fail to support a plausible inference of disparate treatment. Where a plaintiff alleges differential

treatment, she may establish an inference of discrimination by alleging that “[s]he was treated less

favorably than similarly situated employees of other races[.]” Brown v. Daikin Am. Inc., 756 F.3d

219, 229 (2d Cir. 2014).8 However, “it is insufficient for a plaintiff to make naked assertions of

disparate treatment without factual allegations indicating those employees treated differently were

similarly situated.” Sosa v. N.Y.C. Dep't of Educ., 368 F. Supp. 3d 489, 514 (E.D.N.Y. 2019). The

“plaintiff must . . . identify at least one comparator to support a minimal inference of

discrimination” to survive a motion to dismiss. Goodine v. Suffolk Cnty. Water Auth., 14-CV4514

(JS) (ARL), 2017 WL 1232504, at *4 (E.D.N.Y. Mar. 31, 2017). The complaint lacks any factual

basis from which the Court could reasonably infer that the relevant white employee was similarly

situated to Plaintiff in material terms. While “[a]n inference of discrimination may be supported

at this stage by showing more favorable treatment of an employee not in the plaintiff’s protected

class[,]” Pollock v. Shea, 568 F. Supp. 3d 500, 509 (S.D.N.Y. 2021), the only fact that Plaintiff

provides regarding the comparator is that she is a “white female employee who drove a Jeep” and

with whom Plaintiff partnered on Saturdays. Compl. ¶ 18. But the complaint is otherwise silent

8 To do so, “a plaintiff must allege that ‘she was similarly situated in all material respects to the individuals with whom

she seeks to compare herself.’” Brown, 756 F.3d at 230 (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d

Cir. 2000)). But allegations of “adverse actions taken against employees who are not similarly situated cannot

establish an inference of discrimination.” Littlejohn, 795 F.3d at 312.

as to the specifics on the comparator—that is, how the comparator is similarly situated to Plaintiff,

what her responsibility was, and who that person is. Aside from the statement that when she

worked with a “certain” “white female employee” her workload was reduced, Plaintiff does not

allege any other facts that would elevate her allegations beyond that of a “naked assertion.” See,

e.g., Stinnett v. Delta Air Lines, Inc., 278 F. Supp. 3d 599, 612 (E.D.N.Y. 2017) (dismissing Title

VII disparate treatment claims because “Plaintiff failed to demonstrate that she was similarly

situated in all material respects to the male employees she identifies”) (quotations omitted);

Goodine, 2017 WL 1232504, at *4 (“Plaintiff refers to a generic class of white probationary

employees, which is insufficient even at the pleadings stage.”). Consequently, Plaintiff’s racial

discrimination claim under Section 1981 is dismissed.

CONCLUSION

For the foregoing reasons, Defendant Assist Ambulance’s motion to dismiss is granted,

and Plaintiff’s complaint is hereby dismissed. The Clerk of Court is directed to close this action.

SO ORDERED.

/s/

ORELIA E. MERCHANT

United States District Judge

February 17, 2025

Brooklyn, New York