“Although the decision whether to decline to exercise supplemental jurisdiction is purely discretionary ... we have repeatedly said that if a plaintiff's federal claims are dismissed before trial, the state law claims should be dismissed as well.”
How later courts described this case
- “Although the decision whether to decline to exercise supplemental jurisdiction is purely discretionary ... we have repeatedly said that if a plaintiff's federal claims are dismissed before trial, the state law claims should be dismissed as well.”
Written by the judges who cited it.
The opinion
United States District Court
Eastern District of New York
-----------------------------------X
John Giambone,
Plaintiff,
Memorandum and Order
- against - No. 24-cv-5483 (KAM)(LGD)
Town of Southampton, New York and
Southampton Town Police Department,
Defendant.
-----------------------------------X
Kiyo A. Matsumoto, United States District Judge:
Pending before the Court is a motion to dismiss, (ECF
No. 17), filed by the Town of Southampton, New York and the
Southampton Town Police Department (“Defendants”) seeking to
dismiss pro se plaintiff John Giambone’s Second Amended Complaint
(“SAC”), (ECF No. 10), alleging state and federal discrimination
claims arising from Plaintiff’s employment as a police officer in
Southampton, New York.1 Plaintiff asserts these claims under the
New York State Human Rights Law (“NYSHRL”), the Age Discrimination
in Employment Act of 1967 (“ADEA”), and Title VII of the Civil
Rights Act of 1964 (“Title VII”).
Before proceeding to the analysis of Plaintiff’s age
discrimination claims, Plaintiff’s time-barred Title VII claims
1 This case was reassigned to this Court on September 4, 2025.
must be dismissed with prejudice at the outset because the claims
are untimely and because Plaintiff’s February 25, 2025 complaint
to the Equal Employment Opportunity Commission (“EEOC”), (ECF No.
17-3), failed to allege discrimination on the basis of a protected
characteristic under Title VII. “Before bringing a Title VII suit
in federal court, an individual must first present the claims
forming the basis of such a suit in a complaint to the EEOC or the
equivalent state agency.” Littlejohn v. City of New York, 795
F.3d 297, 322 (2d Cir. 2015) (citation modified). Plaintiff’s
EEOC complaint, upon which this action is premised, contained only
allegations of age discrimination and did not, explicitly or
implicitly, allege any discrimination on the basis of any protected
characteristic under Title VII.2 (See ECF No. 17-3 at 2.3)
Accordingly, the Court dismisses Plaintiff’s Title VII claims and
proceeds with analysis of Plaintiff’s state and federal age
discrimination claims.
As explained below, Plaintiff’s federal age
discrimination claims under the ADEA are dismissed for failure to
state a claim, and the Court declines supplemental jurisdiction
over Plaintiff’s state law claims under the NYSHRL.
2 Moreover, even if Plaintiff’s Title VII claims were not barred, the Second
Amendment Complaint lacks any allegation of discriminatory animus based on any
protected characteristic under Title VII.
3 All pinpoint citations refer to the page numbers assigned by the CM/ECF system.
BACKGROUND
I. Procedural Background
Plaintiff filed an age discrimination complaint to the
EEOC on February 25, 2022, (ECF No. 17-3), and was issued a “Right
to Sue” letter on May 7, 2024,4 (ECF No. 8 at 6.) On August 7,
2024, Plaintiff filed a pro se complaint in the Eastern District
of New York. (ECF No. 1 (“Complaint”).) On October 25, 2024,
Plaintiff filed a pro se First Amended Complaint, (ECF No. 8
(“FAC”)), and shortly thereafter on November 1, 2024, a pro se
Second Amended Complaint,5 (ECF No. 10).
Given that “the submissions of a pro se litigant must be
construed liberally and interpreted to raise the strongest
arguments that they suggest,” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir. 2006) (internal quotations omitted)
(emphasis in original), the Court will read Plaintiff’s Second
Amended Complaint to include hostile work environment, disparate
treatment, and retaliation claims based on his age. The Court
will further read the Second Amended Complaint as asserting these
claims under both state and federal law6 – specifically, under the
4 Although Plaintiff did not attach his “Right to Sue” letter from the EEOC in
his Second Amended Complaint (perhaps inadvertently), it was attached to his
First Amended Complaint. (See ECF No. 8.)
5 The Court accepts Plaintiff’s pro se Second Amended Complaint, (ECF No. 10),
as the operative complaint.
6 The Second Amended Complaint alludes to “any related claims under New York
law.” (SAC at 2.)
New York State Human Rights Law (“NYSHRL”), New York Executive Law
§ 290 et seq., and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.
II. Factual Background
Plaintiff is a “sixty-year-old white male who has served
as a Police Officer for the Town of Southampton Police Department
since 1995.” (SAC at 6.) Plaintiff alleges that he is “more
experienced and qualified than many younger officers,” but “[he
has] repeatedly been passed over for promotions and transfers,
which have instead been awarded to younger, less experienced
individuals, some of whom are of different races and genders.”
(SAC at 6.) In sum, Plaintiff alleges that he “ha[s] applied more
than twenty times for various positions with the police department
... and each time, [he] ha[s] been denied career advancements.”
(SAC at 8.)
Although Plaintiff’s factual allegations are devoid of
any allegation from which a factfinder could infer age-related
animus and include mostly events outside the statute of limitations
period, the Court will nonetheless summarize the facts as alleged
in the Second Amended Complaint. The Court will first summarize
Plaintiff’s bullying and misconduct allegations (Part II.A) and
then Plaintiff’s alleged denial of advancement opportunities (Part
II.B).
A. Bullying and Misconduct Allegations
Plaintiff describes four instances of alleged bullying
and misconduct spanning approximately 20 years. (SAC at 6-8.)
Each of these incidents is discussed below. Notwithstanding the
seriousness of some of the alleged misconduct, none of these
incidents are alleged to be related to Plaintiff’s age or be
motivated by age-related animus.
1. 2004 Incident
First, Plaintiff alleges that in 2004 he was “unjustly
suspended for six months without pay following a motor vehicle
accident in which [he] was responding to an emergency call.” (SAC
at 6.) Plaintiff states that “[t]his accident nearly cost [him
his] life as the vehicle rolled over several times, resulting in
bodily injury and having to be flown to a trauma center for [his]
injuries.” (SAC at 6.) Plaintiff alleges that “[n]o other officer
in the history of the police department has endured such a harsh
punishment.” (SAC at 6.) Plaintiff does not allege any factual
nexus between his suspension and his age or any other protected
characteristic. This alleged incident is outside the statute of
limitations and is not actionable.
2. 2006 Incident
Second, Plaintiff alleges that, “in early 2006, [he] was
physically assaulted unexpectedly by Lt. William Hughs during
classroom training through the use of an electronic stun gun placed
into the small of [Plaintiff’s] back, causing pain, mental anguish,
and embarrassment in front of the entire class as a result.” (SAC
at 6.) Plaintiff alleges that “[a]lthough Captain Tenaglia was
notified of the incident, he refused to do anything about it.”
(SAC at 6.) Similar to the 2004 car accident incident, Plaintiff
does not allege any factual nexus between Lt. Hughs’ alleged
assault and Plaintiff’s age or any other protected characteristic.
This alleged incident is also outside the statute of limitations
and not actionable.
3. 2014-2015 Incidents
Third, Plaintiff alleges that, “[b]etween 2014 and 2015,
Sgt. Steven Miller made disparaging and offensive remarks, even
questioning [his] sexuality, often referring to [him] as a fagot
[sic] and a queer.” (SAC at 6.) Plaintiff further alleges that,
“[i]n another instance, this Seargent would ask [Plaintiff] if
[he] was gay or would ask if [Plaintiff] was a Homosexual” and
that “Sgt Miller would demean [Plaintiff] and often cast a
perception of gayness on [his] character, even bullying
[Plaintiff] in front of others.”7 (SAC at 6-7.) Similar to the
previously discussed incidents, Plaintiff does not allege any
7 Plaintiff does not allege Title VII sex discrimination claims (related to
discrimination on the basis of perceived sexual orientation) based on these
alleged incidents of sexual harassment in 2014 and 2015, and any such claims
would be time-barred because “[i]n New York, the statute of limitations for
filing a charge with the EEOC is 300 days.” Odom v. Doar, 497 F. App'x 88, 89
(2d Cir. 2012) (summary order).
facts suggesting that the alleged homophobic sexual harassment by
Sgt. Miller in 2014 and 2015 was related to Plaintiff’s age.
Plaintiff alleges that he “filed a formal complaint
against Seargent Miller” and that “notification was made to Chief
Robert Pearce, the PBA, and the Town Board, informing them about
the inappropriate conduct and sexual harassment in the workplace.”
(SAC at 7.) According to Plaintiff, “in 2015, [he] proposed a
fair and equitable resolution to address this matter, and a verbal
agreement was made with the Town Human Resources to transfer [him]
to the Community Response Unit or the Detective Division as a
settlement alternative to a lawsuit,” but “this promise was never
fulfilled.” (SAC at 7.) Again, similar to the previously
discussed incidents, Plaintiff does not allege that the town of
Southampton’s failure to comply with the terms of the alleged
“verbal agreement” was related to Plaintiff’s age. This alleged
incident is also outside the statute of limitations and not
actionable.
4. 2021 Incident
Fourth, Plaintiff alleges that, “[i]n February 2021, a
Lieutenant fabricated and falsified an official Personnel Order
indicating that [Plaintiff] would be transferred to the Community
Response Unit.” (SAC at 7.) According to Plaintiff, the fake
Personnel Order “was issued by then, Lt. Howard Kalb and was posted
on the wall in Lt. Michael Joyce's office” and was considered a
“joke” but later “taken down when someone photographed it and
brought it to [Plaintiff’s] attention.” (SAC at 7.) Plaintiff
alleges that “[t]his act created false hope of advancing and
subjected [him] to public ridicule and mocking” and that he was
left with “a deep sense of defeat and humiliation.” (SAC at 7.)
Although Plaintiff’s complaint alleges a mean-spirited prank by
his colleagues and a culture of bullying, Plaintiff again does not
allege that this incident was related to Plaintiff’s age or any
protected characteristics. This alleged incident is also outside
the statute of limitations.
B. Denial of Advancement Opportunities
Plaintiff states that “[i]t had always been [his] hope
and dream to work in investigations and become a Detective, but
[he is] continually denied any advancement.” (SAC at 7.)
Plaintiff presents numerous examples of being denied promotions
and transfers throughout his decadeslong career at the police
department. Though Plaintiff alleges that he has been “denied
career advancements” “more than twenty times for various positions
with the police department,” (SAC at 8), Plaintiff’s operative
complaint details only three specific instances of denial of
advancement opportunities.
1. January 2021 Denial of Transfer
First, Plaintiff alleges a denial of transfer occurred
in January 2021 following his voluntary participation in a pilot
program during which he was temporarily transferred to preferred
units within the police department:
[I]n 2020, under Chief Steven Skrynecki, there was a
pilot program in which two other officers and I expressed
interest. So, in that time, I applied for a temporary
transfer from the patrol division, which I transferred
to the Detective Division from March 2020 to July 2020.
and then to the Community Response Unit from July 2020
to December 2020. Then, in January 2021, I was reassigned
and transferred back to the patrol division without
being considered for a permanent role despite meeting
all performance objectives during these assignments. The
two other officers, however, were later transferred or
promoted despite my seniority, qualifications, and
proven track record. Of the three officers in this pilot
program, I was the only officer who would not receive a
permanent position. Similarly, my temporary assignments
in 2020 still have not been converted to permanent
positions, further contributing to a toxic work
environment. Instead, the other two candidates, who were
much younger, were later transferred and or promoted to
other divisions and titles, even though I was the most
qualified, senior, and oldest officer. During this pilot
program, it was understood that if all the performance
objectives were met, there would be an opportunity for
a permanent transfer. During this time, I met all the
requirements and fulfilled my duties accordingly without
any objections. Moreover, when other positions became
available, I continued to apply every time, even today.
Sadly, I continue to be passed over in favor of much
younger, inexperienced officers, some in their twenties
and thirties with less than five years of on-the-job
experience. Also, this is not the first time I have been
passed over and denied a promotion in favor of vastly
younger and inexperienced officers, some with only
eighteen months or three years.
(SAC at 7.) Although these denials of Plaintiff’s requests to
transfer are related to Plaintiff’s age discrimination claims,
these alleged incidents with specified dates fall outside the
statute of limitations.
2. May 2021 Denial of Transfer
Second, Plaintiff alleges that in May 2021 he was
notified that his denial of permanent transfer opportunities was
due to his social media activity. (SAC at 7.) Plaintiff alleges
no facts to raise an inference of age discrimination. Plaintiff
states that he “maintained a personal account under an assumed
name and commented on religious and social issues as part of [his]
ministry studies” and that “these actions were cited as the
rationale for withholding a promotion.” (SAC at 7.)
Plaintiff makes a passing reference to a First Amendment
claim: “Despite my right to free expression under NYLL 201-d, these
actions were cited as the rationale for withholding a promotion,
violating my constitutional and state-protected rights.” (SAC at
7.) The Court does not construe this one-sentence allegation as
an assertion of a constitutional claim for First Amendment
retaliation, but even if the Court did so, Plaintiff’s “claims of
First Amendment retaliation ... are barred by the three-year
statute of limitations.” Smith v. New York City Dep't of Educ.,
524 F. App'x 730, 732 (2d Cir. 2013) (summary order). Plaintiff’s
original complaint was filed on August 7, 2024, (ECF No. 1), which
was over three years after the alleged denial of transfer in May
2021.8
8 Given the current procedural posture, the Court declines to consider, at the
motion to dismiss stage, Defendants’ exhibits containing inflammatory social
media posts allegedly authored by Plaintiff, (see ECF No. 17-7), and Defendants’
3. October 2024 Denial of Transfer
Third, Plaintiff alleges that “in October 2024, [he]
applied for the Community Response Unit, but Chief James Kiernan
again blocked [his] application.” (SAC at 8.) Plaintiff alleges
that he “sent an email to the review committee with an attached
cover letter, a proposal, and a research paper, copying Chief
Kiernan and Captain Kalb on the email, only to receive a response
from the chief thirty minutes before [Plaintiff’s] interview
indicating that [he] needed to focus [his] attention on the ‘task
at hand.’” (SAC at 8.) Plaintiff further alleges that, “[n]ot
only did the chief reply to ‘all’ on the email, but he further
went on to say that due to the lack of traffic enforcement,
[Plaintiff] was to be moved out of [his] sector, but that since
[Plaintiff] was supposed to retire last year, [he] was allowed to
remain in the sector.”9 (SAC at 8.) Plaintiff believes “[t]he
chief’s actions and response before the interview added to the
already tense situation, causing further stress and anxiety” and
that “[t]his kind of action also sent a clear message to those
conducting the interview, which would result in being denied.”
(SAC at 8.) These allegations, including a stated understanding
related argument that such posts undermined public trust and risked rendering
Plaintiff an unsuitable law enforcement witness in criminal cases, (ECF No. 17-
8 at 22).
9 It is unclear from the Second Amended Complaint whether Plaintiff had a target
retirement date provided by the Plaintiff, the police department, or an
agreement.
by Chief Kiernan that Plaintiff was going to retire, fail to assert
facts raising an inference of age discrimination under the ADEA.
LEGAL STANDARD
I. Motion to Dismiss
A. General Standard
“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.” Cardinal Motors, Inc. v.
H&H Sports Prot. USA Inc., 128 F.4th 112, 120 (2d Cir. 2025)
(internal quotations omitted). In assessing whether Plaintiff’s
allegations meet this standard, the Court is “not bound to accept
as true a legal conclusion couched as a factual allegation,” and
“threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Buon v.
Spindler, 65 F.4th 64, 76 (2d Cir. 2023) (alteration adopted)
(first quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); and then quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). As the Second Circuit noted, “[t]he Supreme Court has
clarified recently that the but-for causation standard for
discrimination claims applies not only at trial but at the pleading
stage as well.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th
293, 303 (2d Cir. 2021) (citing Comcast Corp. v. Nat'l Ass'n of
African Am.-Owned Media, 589 U.S. 327, 332 (2020)).
B. Liberal Construction of Pro Se Pleadings
As previously discussed, “the submissions of a pro se
litigant must be construed liberally and interpreted to raise the
strongest arguments that they suggest.” Triestman, 470 F.3d at
474 (internal quotations omitted) (emphasis in original).
“Nonetheless, a pro se complaint must state a plausible claim for
relief.” Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).
II. ADEA Claims
A. Hostile Work Environment
For “a federal hostile work environment claim, a
plaintiff must show conduct that (1) is objectively severe or
pervasive — that is, 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
protected characteristic.” Adams v. Equinox Holdings, Inc., 662
F. Supp. 3d 444, 459 (S.D.N.Y. 2023) (citation modified), aff'd,
No. 23-608, 2024 WL 1787108 (2d Cir. Apr. 25, 2024).
B. Disparate Treatment
"For an individual disparate treatment claim to survive
a Rule 12(b)(6) motion, a plaintiff must plausibly allege that (1)
the employer took adverse action against [the plaintiff], Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015),
and (2) the employer would not have taken the adverse action but
for [the plaintiff’s] age, Lively v. WAFRA Inv. Advisory Grp.,
Inc., 6 F.4th 293, 303 (2d Cir. 2021).” Doheny v. Int'l Bus.
Machines, Corp., 714 F. Supp. 3d 342, 360 (S.D.N.Y. 2024) (citation
modified).
C. Retaliation
For a retaliation claim, “[the plaintiff] must show (1)
that [the plaintiff] participated in a protected activity, (2)
that [the plaintiff] suffered an adverse employment action, and
(3) that there was a causal connection between [the plaintiff’s]
engaging in the protected activity and the adverse employment
action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d
Cir. 2010).
D. Statute of Limitations
“Before a plaintiff may assert claims under ... the ADEA
in federal court, [he] must present the claims forming the basis
of such a suit in a complaint to the EEOC.” Adams, 662 F. Supp.
3d at 455 (internal quotations omitted). “A claim under that
statute is time-barred if the plaintiff does not file a charge
with the EEOC within 300 days of the alleged unlawful employment
practice.” Id. (citing Paneccasio v. Unisource Worldwide, Inc.,
532 F.3d 101, 112 (2d Cir. 2008)).
“Where the plaintiff complains of discrete
discriminatory or retaliatory acts such as termination, failure to
promote, denial of transfer, or refusal to hire, such claims are
not actionable if they occurred prior to the 300-day period even
though they may be related to acts that occurred within the
permissible 300-day period.” Davis-Garett v. Urb. Outfitters,
Inc., 921 F.3d 30, 42 (2d Cir. 2019) (internal quotations omitted).
But “a charge alleging a hostile work environment claim will not
be time barred so long as all acts which constitute the claim are
part of the same unlawful employment practice and at least one act
falls within the time period.” Davis-Garett, 921 F.3d at 42
(citation modified) (emphasis in original).
III. NYSHRL Claims
Prior to 2019, “[t]he law governing ADEA claims [was]
held to be identical to that governing claims made under the
[NYSHRL].” Gorzynski, 596 F.3d at 105 n.6. This changed when
“[t]he New York State Legislature passed several amendments to the
NYSHRL in June 2019, the effect of which is to render the standard
for claims closer to the standard of the NYCHRL.” Livingston v.
City of New York, 563 F. Supp. 3d 201, 232 n.14 (S.D.N.Y. 2021).
Given these changes, the NYSHRL, similar to “the NYCHRL, requires
an independent analysis.” Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (emphasis added).
Pursuant to the Second Circuit’s guidance, however, analysis of
state law claims should only be undertaken if a plaintiff’s federal
claims survive. See, e.g., Oneida Indian Nation of New York v.
Madison Cnty., 665 F.3d 408, 437 (2d Cir. 2011) (“Although the
decision whether to decline to exercise supplemental jurisdiction
is purely discretionary ... we have repeatedly said that if a
plaintiff's federal claims are dismissed before trial, the state
law claims should be dismissed as well.”) (citation modified).
The Second Circuit “ha[s] also cautioned against unnecessarily
delving into non-federal legal issues in the absence of any
continuing basis for federal question jurisdiction.” Norman v.
NYU Langone Health Sys., No. 20-3624-CV, 2021 WL 5986999, at *6
(2d Cir. Dec. 17, 2021) (summary order).
DISCUSSION
Although the Second Amended Complaint includes
allegations of workplace bullying and misconduct spanning a 20-
year period, its allegations do not fall within the statute of
limitations or the ambit of the ADEA. As discussed below,
Plaintiff fails to state a federal claim for hostile work
environment, disparate treatment, and retaliation because, inter
alia, Plaintiff has not plausibly alleged facts from which a
factfinder could infer age-related animus. The ADEA is not a
catchall statute covering all workplace bullying and does not serve
as a basis for the relief Plaintiff seeks in this action.
Therefore, the Court dismisses Plaintiff’s federal claims under
the ADEA and declines supplemental jurisdiction over Plaintiff’s
state claims under the NYSHRL.
I. Federal Claims
A. Hostile Work Environment Claim
Plaintiff’s hostile work environment claim fails because
there is no allegation that Defendants acted in a hostile or
abusive manner within the 300-day period preceding Plaintiff’s
EEOC complaint. At a minimum, Plaintiff must allege that “at least
one act falls within the [300-day] time period” preceding
Plaintiff’s EEOC complaint. Davis-Garett, 921 F.3d at 42 (citation
modified). The instances of hostility and abuse alleged in the
Second Amended Complaint occurred in 2004, 2006, 2014 to 2015, and
February 2021 – all of which fall outside the 300-day window
preceding Plaintiff’s February 25, 2022 EEOC complaint.10 (See ECF
No. 17-3.) Even if the Court were to look beyond the Second
Amended Complaint and consider exhibits attached to Plaintiff’s
response in opposition to Defendants’ motion to dismiss,11
Plaintiff’s timeline of events still lacks any allegation of
hostile or abusive acts within the statute of limitations.12 (See
ECF No. 17-14.) Instead, Plaintiff’s timeline of alleged facts
10 The 300-day time period preceding Plaintiff’s EEOC complaint on February 25,
2022 began on or about May 1, 2021.
11 “Given the liberality afforded pro se litigants, it is appropriate to consider
new allegations in a pro se plaintiff's opposition to a motion to dismiss where
they are consistent with the allegations contained in the pleading.” Williams
v. New York State, et al., No. 24-cv-04285 (PMH), 2025 WL 2452219, at *1 n.1
(S.D.N.Y. Aug. 26, 2025) (citing Vail v. City of New York, 68 F. Supp. 3d 412,
427 (S.D.N.Y. 2014)).
12 Plaintiff attached a timeline of events, (ECF No. 17-14), as an exhibit to
his response in opposition to Defendants’ motion to dismiss.
includes mundane information such as Plaintiff’s letters of
interest, personnel changes within the police department, and an
August 1, 2024 “[i]n-person meeting with Juan Becerra, Director of
Human Resources, to inform him of ongoing conflicts and achieve
resolution.” (ECF No. 17-14 at 2-3.) A single vague reference to
“ongoing conflicts” is not an adequate allegation of an act “that
a reasonable person would find hostile or abusive.” Adams, 662 F.
Supp. 3d at 459.
Moreover, even for Plaintiff’s allegations of bullying
and misconduct preceding the statute of limitations period,
Plaintiff has not plausibly alleged the hostility and abuse he
suffered was “because of the plaintiff’s protected characteristic”
– that is, Plaintiff’s age. Adams, 662 F. Supp. 3d at 459 (internal
quotations omitted) (emphasis added). For example, the 2006
incident involving an alleged assault by Lt. Hughs has no
discernible connection to Plaintiff’s age at that time. Similarly,
the 2014 and 2015 incidents involving alleged homophobic comments
directed at Plaintiff by Sgt. Miller appear wholly unrelated to
Plaintiff’s age. Accordingly, Plaintiff fails to state a federal
ADEA claim for hostile work environment.
B. Disparate Treatment Claim
As a threshold matter, the Court must restrict its
analysis to alleged age-based disparate treatment (i.e. denials of
transfers and promotions) that occurred within the statute of
limitations period. Given that the statute of limitations period
began on or about May 1, 2021, see supra note 10, the Court cannot
consider denials of transfers or promotions that occurred prior to
May 1, 2021. See Davis-Garett, 921 F.3d at 42 (“Where the
plaintiff complains of discrete discriminatory or retaliatory acts
such as termination, failure to promote, denial of transfer, or
refusal to hire, such claims are not actionable if they occurred
prior to the 300-day period even though they may be related to
acts that occurred within the permissible 300-day period.”)
(internal quotations omitted).
Upon reviewing Plaintiff’s alleged denials of transfers
and promotions within the statute of limitations period, Plaintiff
does not state a claim for age discrimination because he fails to
plausibly allege, in any of his submissions, any evidence of age-
related animus. Moreover, Plaintiff fails to allege that any such
age-related animus, even if it were alleged, was the “but for”
cause of denials of his requests for transfers and promotions.
First, Plaintiff’s allegation that, in May 2021, he was
notified that his denial of permanent transfer opportunities was
related to his social media activity has no relationship whatsoever
with Plaintiff’s age. (SAC at 7.) Second, in October 2024, after
Plaintiff applied for the Community Response Unit, Chief Kiernan’s
email reply that Plaintiff should “focus [his] attention on the
‘task at hand’” and an unspecified comment about Plaintiff’s
expected retirement “last year” to explain why Plaintiff “was
allowed to remain in the [patrol and traffic enforcement] sector”
do not suggest any age-based animus. (SAC at 8.) As the Second
Circuit has explained, “[s]tray age-related remarks are
insufficient to raise an inference of discriminatory motive unless
they (1) were made repeatedly, (2) drew a direct link between
discriminatory stereotypes and the adverse employment decision,
and (3) were made by supervisors who played a substantial role in
the decision to terminate.” Lively, 6 F.4th at 306 (citation
modified). Plaintiff’s allegations are not sufficient to state an
age-based disparate treatment claim under the Lively standards.
Third, Plaintiff’s timeline of events (as previously discussed)
almost exclusively includes information regarding Plaintiff’s
letters of interest and personnel changes at the department. No
age-related animus is alleged. Accordingly, Plaintiff fails to
state a federal ADEA claim for disparate treatment.
C. Retaliation Claim
As previously discussed, “[t]o establish a prima facie
case of retaliation, [the plaintiff] must show (1) that [the
plaintiff] participated in a protected activity, (2) that [the
plaintiff] suffered an adverse employment action, and (3) that
there was a causal connection between [the plaintiff’s] engaging
in the protected activity and the adverse employment action.”
Gorzynski, 596 F.3d at 110. To the extent a retaliation claim can
be construed, it appears that Plaintiff believes that he was
subjected to retaliation by being denied transfers and promotions.
Given that the Court cannot consider retaliatory acts that occurred
outside the statute of limitations or before Plaintiff engaged in
protected activity, the Court cannot consider denials of transfers
or promotions that occurred before May 1, 2021.13
As a threshold matter, Plaintiff has not specified a
protected activity, so the Court is left to identify one. To
satisfy “the ‘protected activity’ element of a Title VII or ADEA
retaliation claim, the plaintiff need only have had a good faith,
reasonable belief that he was opposing an employment practice made
unlawful by Title VII or the ADEA.” Kessler v. Westchester Cnty.
Dep't of Soc. Servs., 461 F.3d 199, 210 (2d Cir. 2006) (citation
modified). The only cognizable instance of Plaintiff “opposing an
employment practice made unlawful by Title VII or the ADEA,” id.
at 210, during or near the statute of limitations period is
Plaintiff’s February 25, 2022 EEOC complaint alleging age
discrimination. (See ECF No. 17-3.)
In reviewing Plaintiff’s submissions, the only possibly
retaliatory act that was alleged after Plaintiff engaged in
protected activity by filing his February 25, 2022 EEOC complaint
13 See Davis-Garett, 921 F.3d at 42 (“Where the plaintiff complains of discrete
discriminatory or retaliatory acts such as ... failure to promote, denial of
transfer, or refusal to hire, such claims are not actionable if they occurred
prior to the 300-day period even though they may be related to acts that occurred
within the permissible 300-day period.”) (internal quotations omitted).
was the October 2024 denial of Plaintiff’s transfer request. (SAC
at 8.) Specifically, Plaintiff alleges that “Chief James Kiernan
again blocked [his] application” and that Chief Kiernan sent an
email (replying all) that Plaintiff “needed to focus [his]
attention on the ‘task at hand.’” (SAC at 8.) Chief Kiernan also
allegedly alluded to Plaintiff’s expected retirement in the past
year. (SAC at 8.) Plaintiff alleges “[t]he chief’s actions and
response before the interview added to the already tense situation,
causing further stress and anxiety” and that “[t]his kind of action
also sent a clear message to those conducting the interview, which
would result in being denied.” (SAC at 8.) Given that there was
a gap of over two and a half years between Plaintiff’s protected
activity (the filing of his EEOC complaint in February 2022) and
the alleged adverse action (the denial of his transfer request in
October 2024) and the absence of any allegation suggesting that
the two events were related, Plaintiff has not plausibly alleged
a causal connection as required to plead an ADEA retaliation claim.
“Although temporal proximity between protected activity and
adverse employment action can support an inference of
discriminatory intent, the Supreme Court has suggested that the
temporal proximity must be very close.” Riddle v. Citigroup, 640
F. App'x 77, 79 (2d Cir. 2016) (summary order) (internal quotations
omitted) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001)). Given the Second Circuit’s finding that a “gap of
... sixteen months is too long to support a retaliation claim based
solely on temporal connection,” Riddle, 640 F. App'x at 79, the
Court finds the gap between the protected activity and the alleged
retaliation in the instant case (over two and a half years) to be
too long to support an inference of a causal connection between
Plaintiff’s EEOC complaint and his denial of a transfer.
Accordingly, Plaintiff fails to state a federal ADEA claim for
retaliation.
II. State Claims
Pursuant to the Second Circuit’s guidance, the Court
declines supplemental jurisdiction over Plaintiff’s NYSHRL claims
of age discrimination. See Oneida Indian Nation of New York, 665
F.3d at 437 (“Although the decision whether to decline to exercise
supplemental jurisdiction is purely discretionary ... we have
repeatedly said that if a plaintiff's federal claims are dismissed
before trial, the state law claims should be dismissed as well.”)
(citation modified).
CONCLUSION
For the reasons explained above, Plaintiff’s federal
claims are dismissed for failure to state a claim, and the Court
declines supplemental jurisdiction over Plaintiff’s state law
claims. Plaintiff may, if he elects to do so, pursue his state
law claims in state court.
Given that this action is dismissed in its entirety, the
Clerk of Court is respectfully directed to close this case. The
Clerk of Court is also respectfully directed to serve on Plaintiff
this Memorandum and Order and to note service on the docket by
September 12, 2025.
So ordered.
Dated: September 11, 2025 f? ‘VA ——
Brooklyn, New York or er
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
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