Thompson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CASSANDRA T. THOMPSON,

Plaintiff, MEMORANDUM & ORDER

22-CV-4732 (EK)(SDE)

-against-

DOUGLAS A. COLLINS, SECRETARY OF

VETERANS AFFAIRS; CHRISTINE CARBALLO;

and MICHAEL INGINO,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Cassandra Thompson brings various civil

rights claims against her supervisors at the U.S. Department of

Veterans Affairs (the “VA”).1 Proceeding pro se here, she claims

that her employer discriminated against her based on her race,

color, sex, gender, disability, and veteran status; retaliated

against her for one of her EEOC complaints; and created a

hostile work environment.

The government now moves to dismiss. For the reasons

that follow, that motion is granted.

1 The Clerk of Court is respectfully requested to substitute Douglas A.

Collins, the current Secretary of Veterans Affairs, as a party in his

official capacity, pursuant to Federal Rule of Civil Procedure 25(d), and to

update the caption accordingly.

The defendants are Secretary Collins; Christine Carballo, the Veterans

Affairs Department’s Chief of Material Management; and Michael Ingino, an

Associate Director in the department.

Background

A. Factual Background

We take the following facts from Thompson’s complaint

and opposition papers and assume them to be true for the

purposes of the instant motion.2 Thompson was a “Program Support

Assistant” at the VA’s Logistics Services operation in New York.

The pleadings do not explain her job duties. As far as the

complaint indicates, she remained in the position when she filed

this case.

Thompson’s factual recitation is short and highly

general. She complains of a “fabricated” “report of contact”

that defendant Carballo filed against her in March 2018, but

provides no information about the underlying events. Compl.

Supp. 5, ECF No. 1-1. The report recommended that she lose

overtime pay and be suspended from any involvement in the

“inspection” of “[w]eapons inventory.” Pl. Opp’n 4-5, ECF No.

33. Around this time, Carballo also “display[ed] favoritism

toward[] [Thompson’s] white male counterparts and continued to

2 Thompson’s brief alleges several facts that she did not include in the

complaint, notwithstanding that she was offered multiple opportunities to

amend and declined. In an effort to frame the dispute, and given that the

disposition is against her, we will “take account of all the facts contained

in both [Thompson’s] complaint and h[er] opposition papers.” Small v.

Ortlieb, No. 10-CV-1616, 2012 WL 3229298, at *1 (E.D.N.Y. Aug. 6, 2012);

Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court

deciding a motion to dismiss may consider factual allegations made by a pro

se party in [her] papers opposing the motion.”). We also note certain facts

taken from the 2022 EEOC Decision attached to the complaint. ATSI Commc’ns,

Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (on a motion to

dismiss, “we may consider any written instrument attached to the complaint”).

undermin[e] [Thompson’s] character and work ethic[].” Compl.

Supp. 5.

Later — after Thompson complained to the EEOC — she

was “transfer[red] to [a] less prestigious” campus. Pl. Opp’n

2. She had been working at the VA’s Brooklyn campus since 2010

“as an agreed upon accommodation”; in 2018, however, the agency

involuntarily reassigned her — “without following proper

protocol” — to work in Manhattan. Id. at 2, 5. The complaint

is not entirely clear on how her job duties changed as a result

of this reassignment: she alleges that she was “removed” from

“duties at all campus[es],” see id. at 3, 5, but also says she

was told to “continue to do what [she] was doing before” at the

Manhattan campus. Id. at 5. Around the time her first

complaint was dismissed by the EEOC, Ingino called her a “cancer

to the service.” Id. at 6.

Thompson also levels allegations of unequal pay. She

performed duties that would typically be associated with a

higher pay grade, but her supervisor “refused to give [her] the

pay grade and title” higher than the GS-8 status she held. Id.

at 5. She “outperformed [her] white male coworkers (who were

GS9, 11, 12).” Id. She “applied on several occasions for the

Property Manager (NX) position and continued to be non-selected

where the job was canceled each time [she] applied, and 2 males

were hired who were not more qualified.” Id. at 6.

B. Procedural Background

Between 2016 and 2022, Thompson filed six complaints

with the Equal Employment Opportunity Commission. Her first

claim alleged race, gender, and disability discrimination; this

did not lead to the issuance of a right-to-sue letter. See

Frassinelli Decl. ¶¶ 12-15, ECF No. 27-2; 2016 EEOC Compl. 2,

ECF No. 32.

After filing an EEOC claim in 2018, however, she

obtained a decision authorizing suit. This claim alleged sex

discrimination and retaliation — but not discrimination on the

basis of race, disability, or veteran status. This claim was

predicated on Carballo’s report, the transfer of location, and

her being “charged . . . Absent Without Leave (AWOL)” at the new

location. Decision on Req. for Recons. (“EEOC Decision”) 2, ECF

No. 1-2. This suit was timely filed thereafter.3

Thompson’s complaint can be liberally construed to

assert federal claims under Title VII of the Civil Rights Act,

the Americans with Disabilities Act, the Rehabilitation Act, the

Equal Pay Act, Section 1981, and the Family and Medical Leave

Act. She has also brought analogous state and local

antidiscrimination claims and common law claims for defamation

3 Her third and fourth complaints are currently being investigated; the

fifth has reached a final administrative decision that Thompson did not

appeal; and the sixth is pending acceptance. Defs.’ Mot. to Dismiss 6-8, ECF

No. 27-1.

and intentional infliction of emotional distress. See Compl. 3,

ECF No. 1. As discussed further below, the complaint does not

state which facts support which claims. She requests injunctive

and monetary relief. Id. at 6.

Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a

complaint must plead facts sufficient “to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007).4 A claim is facially

plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). The Court must accept all factual allegations

in the complaint as true and draw all reasonable inferences in

the plaintiff’s favor. See Lundy v. Cath. Health Sys. of Long

Island Inc., 711 F.3d 106, 113 (2d Cir. 2013). However, the

Court is “not bound to accept as true a legal conclusion couched

as a factual allegation.” Iqbal, 556 U.S. at 678.

Pro se complaints are “held to less stringent

standards” than pleadings drafted by attorneys, and the Court

will read a pro se complaint liberally and interpret it as

raising the strongest claims it suggests. Erickson v. Pardus,

4 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

551 U.S. 89, 94 (2007). Still, a pro se plaintiff is not exempt

from “compliance with relevant rules of procedural and

substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.

1983). Thus, a pro se complaint must still plead sufficient

facts to “state a claim to relief that is plausible on its

face.” Twombly, 550 U.S. at 570.

Discussion

A. Administrative Exhaustion

Before the EEOC, Thompson complained of sex

discrimination and retaliation (as reflected in the right-to-sue

letter she received in January 2022). See EEOC Decision 1-2.

She did not allege discrimination on the basis of race,

disability, or veteran status. (Nor does she allege facts

sufficient to support such claims in the complaint.) Based on

her failure to exhaust, she may not pursue those claims here.

A plaintiff bringing a claim under Title VII, the ADA,

and the Rehabilitation Act must exhaust administrative remedies

through the EEOC. 42 U.S.C. § 2000e-5(e)(1); Soules v.

Connecticut, 882 F.3d 52, 57 (2d Cir. 2018) (Title VII, ADA);

Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000) (Rehabilitation

Act). Dismissal is appropriate when a plaintiff fails to

exhaust. 42 U.S.C. § 2000e-5(f); Boyar v. Yellen, No. 21-507,

2022 WL 120356, at *2 (2d Cir. Jan. 13, 2022). This requirement

is not jurisdictional, but is a mandatory claims-processing

rule. Fort Bend County v. Davis, 587 U.S. 541, 550-51 (2019).

The plaintiff does not have to allege the precise

facts on which a suit is based before the EEOC. Instead,

“claims that were not asserted before the EEOC may be pursued in

a subsequent federal court action if they are ‘reasonably

related’ to those that were filed with the agency.” Soules, 882

F.3d at 57. This is the case when “(1) the claim would fall

within the reasonably expected scope of an EEOC investigation of

the charges of discrimination; (2) it alleges retaliation for

filing the EEOC charge; or (3) the plaintiff alleges further

incidents of discrimination carried out in precisely the same

manner alleged in the EEOC charge.” Id.

Thompson’s new allegations of race, disability, and

veteran-status discrimination do not meet this standard. A

claim is not “reasonably related” when it is based on “a wholly

different type of discrimination” than the one alleged before

the EEOC. Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d

455, 458 (S.D.N.Y. 1998). So a disability claim, for example,

cannot be brought in federal court alongside a Title VII claim

when the plaintiff’s “EEOC charge did not mention any disability

or health issue.” Kirkland-Hudson v. Mt. Vernon City Sch.

Dist., 665 F. Supp. 3d 412, 440 (S.D.N.Y. 2023); see also

Espinoza v. Port Auth. of N.Y. & N.J., No. 19-CV-258, 2022 WL

623809, at *6 (S.D.N.Y. Mar. 2, 2022) (“[C]ourts in this Circuit

have typically found that Title VII claims are not reasonably

related to ADA claims.”).

Accordingly, we proceed to consider Thompson’s claims

of gender discrimination and retaliation.

B. Title VII Discrimination Claim

1. Discrimination

To plead a Title VII claim for gender discrimination,

a plaintiff must allege facts to support “(1) that she is a

member of a protected class, (2) that she was qualified for the

position she sought, (3) that she suffered an adverse employment

action, and (4) can sustain a minimal burden of showing facts

suggesting an inference of discriminatory motivation.”

Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir.

2015). Thompson’s claim falters on the third and fourth

requirements.

Adverse Action. Thompson’s claims about her

supervisors’ insults, the false disciplinary report, and her

designation as AWOL do not qualify as adverse employment

actions. But two alleged actions do: the failure to promote her

and the lateral transfer.

“To make out a Title VII discrimination claim, a

[plaintiff] must show some harm respecting an identifiable term

or condition of employment.” Muldrow v. City of St. Louis, 601

U.S. 346, 354-55 (2024). Thompson states that her supervisors

insulted her — for example, when Ingino called her “a cancer to

the service.” Pl. Opp’n 6. These statements did not, as

alleged, affect the terms or conditions of Thompson’s

employment.

As to the false report of contact, negative

evaluations and disciplinary write-ups do not suffice when they

only constitute “notices” and do not “result in disciplinary

action.” Fletcher v. ABM Bldg. Value, 775 F. App’x 8, 14 (2d

Cir. 2019). The EEOC decision indicates that Thompson’s

supervisor made a “recommendation that [Thompson] be suspended

from weapons inspection / Police Inventory, no longer be granted

overtime and that an incident of record be documented in her

mid-year performance review.” EEOC Decision 1-2 (emphasis

added). However, the complaint (and the entire record here)

offers no indication that any of these recommendations came to

fruition. Therefore, the report does not qualify as adverse

employment action, either.

Thompson being designated “AWOL” does not constitute

an adverse employment action for the same reason — the complaint

includes no facts suggesting that this designation resulted in

adverse consequences. Sosa v. N.Y.C. Dep’t of Educ., 368 F.

Supp. 3d 489, 520 (E.D.N.Y. 2019).

The failure to hire or promote, on the other hand, are

classic adverse employment actions. Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 761 (1998). Similarly, a lateral

transfer can qualify as adverse employment action, so long as it

“injures” the plaintiff in some way. Back v. Hapoalim, No. 24-

1064, 2024 WL 4746263, at *2 (2d Cir. Nov. 12, 2024) (holding

that allegations are sufficient where an involuntary transfer

would be perceived as a demotion); see also Muldrow, 601 U.S. at

359 (“The transfer must have left her worse off, but need not

have left her significantly so.”).

Here, Thompson argues that with her reassignment to

Manhattan, she was removed from her “duties at all

campus[es].” Pl. Opp’n 5. But she contradicts herself shortly

thereafter: she goes on to say she performed the same duties

“for the Manhattan campus only.” Id. She does write, in her

opposition brief, that the transfer to Manhattan “imposed a

hardship on [her] for transportation, health / medical

condition, medical care [she] received in BK.” Id. Apart from

this, the record does not reveal how the transfer “left her

worse off” with respect to the terms and conditions of her

employment, Muldrow, 601 U.S. at 359, and her complaint and

briefing provide little detail on what her actual

responsibilities were.

We will assume, however, that the transfer constituted

adverse employment action. Cf. id. (imposition of “less

regular” schedule and loss of take-home car, together with other

setbacks, left plaintiff “worse off several times over”).

Accordingly, we next consider whether Thompson has alleged facts

giving rise to an inference of discrimination in connection with

the failure to promote her or the transfer to Manhattan.

Inference of Discrimination. On a failure-to-promote

claim, “it is not enough for the plaintiff simply to allege that

[s]he was qualified for a position but did not get it.” Ghosh

v. N.Y.C. Hous. Auth., No. 21-CV-6139, 2023 WL 3612553, at *10

(S.D.N.Y. Feb. 27, 2023), report and recommendation adopted,

2023 WL 3746617 (S.D.N.Y. Mar. 20, 2023). Instead, she must

plausibly allege “that the employer took adverse action against

her at least in part for a discriminatory reason.” Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).

Here, Thompson’s complaint says virtually nothing that

would permit an inference of discrimination. She refers, in the

midst of a long list of conclusory fragments, to defendant

Carballo having denied her “promotions, training, and pay

opportunities as that of [her] white male counterparts.” Compl.

Supp. 5. Her opposition brief does not go meaningfully farther:

there, she states that she “applied on several occasions for the

Property Manager (NX) position and continued to be non-selected

where the job was canceled each time [she] applied, and 2 males

were hired who were not more qualified than [her].” Pl. Opp’n

5; see also id. at 6 (“I was not given fair pay or equal pay as

my white male co-workers nor the appropriate fair evaluations

where I outperformed my coworkers.”).

So the record is devoid of any factual content

supporting the inference that Carballo was motivated by

discriminatory animus. Moreover, plaintiff does not indicate

when she applied for the position she was denied. Absent

clarity concerning whether she applied before or after

Carballo’s report, the report cannot form the basis for an

inference of discrimination.

In the end, plaintiff’s threadbare allegations do not

clear the relatively low bar set by the Second Circuit in Vega

and Littlejohn (or by the Supreme Court in Iqbal and Twombly).

See Ghosh, 2023 WL 3612553, at *10 (“While the plaintiff’s

initial pleading burden as to the necessary discriminatory

intent is low, it is not non-existent.”); Moss v. Bd. of Educ.

of Brentwood Sch. Dist., No. 23-CV-6571, 2025 WL 1548945, at *11

(E.D.N.Y. May 30, 2025) (dismissing discrimination claims where

complaint contained “no factual allegations suggesting

Defendants’ selection of [someone else] for the Principal

position instead of Plaintiff had any nexus whatsoever to

Plaintiff’s race”).

On the lateral transfer, Thompson again pleads no

facts that give rise to an inference of gender-based

discrimination. Although she indicates that the transfer was

involuntary, she does not allege (even in her brief) any facts

that suggest it was because of her gender — just that Ingino

decided to reassign her “suddenly” and that the decision was

“unfair[].” Pl. Opp’n 5. Accordingly, the claim of Title VII

discrimination must be dismissed.

2. Retaliation

Thompson’s retaliation claim also warrants dismissal.

To sustain a prima facie case of retaliation under Title VII, a

plaintiff must demonstrate “(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.” Lore v. City of Syracuse, 670 F.3d 127, 157

(2d Cir. 2012).

Thompson points to only one adverse action taken in

retaliation for her EEOC complaint: the transfer to Manhattan.

Thompson has fallen short of plausibly pleading any causal

connection between the transfer and her prior EEOC complaint. To

be sure, she does say that Ingino’s decision to reassign her in

April 2018 was “sudden”; but her original EEOC complaint was

filed in 2016. Pl. Opp’n 5. The Second Circuit has stated

clearly that a two-year temporal gap is “too great to raise a

plausible inference of” retaliation. Dhar v. City of New York,

655 F. App’x 864, 866 (2d Cir. 2016). Accordingly, the

retaliation claim must be dismissed.

3. Hostile Work Environment

Thompson also fails to state a hostile work

environment claim. To establish a hostile work environment, a

plaintiff must show that her “workplace [was] permeated with

discriminatory intimidation, ridicule, and insult . . . that

[was] sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working

environment.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d

597, 604 (2d Cir. 2006). Incidents must be “more than episodic;

they must be sufficiently continuous and concerted in order to

be deemed pervasive.” Holtz v. Rockefeller & Co., 258 F.3d 62,

75 (2d Cir. 2001). For a single event to be sufficient, it must

be “extraordinarily severe.” Banks v. Gen. Motors, LLC., 81

F.4th 242, 263 (2d Cir. 2023). The “mistreatment at work” must

be because of an employee’s protected characteristic. Brown v.

Henderson, 257 F.3d 246, 252 (2d Cir. 2001).

Thompson concedes that the “abusive verbal behavior”

of her employer was not “severe or pervasive.” Pl. Opp’n

2. And even putting the severity aside, she has not plausibly

alleged causation: she sets forth no facts at all suggesting

that she experienced mistreatment because of a protected

characteristic. Brown, 257 F.3d at 252. Therefore, her hostile

work environment claim must be dismissed.

C. The Section 1981 and FMLA Claims Are Barred

Thompson’s Section 1981 and FMLA claims similarly

fail. The Section 1981 claim is barred because the defendants

were acting under federal law, not state law. Yan Ping Xu v.

City of New York, 612 F. App’x 22, 24-25 (2d Cir. 2015)

(dismissing a Section 1981 claim because the federal defendants

were “not acting under color of state law”). And although the

FMLA provides privately employed plaintiffs with a right of

action, “[t]he FMLA does not afford such a right of action to a

federal employee.” Ross v. Dep’t of the Army, No. 22-CV-670,

2023 WL 5494644, at *3 (E.D.N.Y. Aug. 24, 2023); Malloy v.

Pompeo, No. 18-CV-4756, 2020 WL 5603793, at *9 (S.D.N.Y. Sep.

18, 2020); Beauchat v. Mineta, No. 03-CV-3196, 2006 WL 2711608,

at *9 (E.D.N.Y. Sep. 21, 2006). Accordingly, these claims must

be dismissed.

D. Equal Pay Act Claim

Thompson also fails to state a claim under the Equal

Pay Act. A plaintiff establishes a prima facie case of equal

pay discrimination by alleging that “(1) the employer pays

different wages to employees of the opposite sex; (2) the

employees perform equal work in jobs requiring equal skill,

effort, and responsibility; and (3) the jobs are performed under

similar working conditions.” Rizzo v. Kraus Org., No. 10-CV-

272, 2010 WL 2427434, at *2 (E.D.N.Y. May 25, 2010) (citing

Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)). The

EPA typically has a two-year statute of limitations. 29 U.S.C.

§ 255(a).

Thompson identifies the comparative coworkers by their

pay grade: “GS9, 11, [and] 12.” Pl. Opp’n 5. She alleges that

she “perform[ed] the duties of an Inventory Manager NX (GS-9 and

GS-11) for over ten (10) years,” despite having the title of

“Program Support Assistant working in the GS-8 level.” Id. at

2. She does not say what these duties were. This is

insufficient. See Faughnan v. Nassau Health Care Corp., No. 19-

CV-3171, 2021 WL 1566138, at *8 (E.D.N.Y. Mar. 18, 2021)

(dismissing Equal Pay Act claim in support of which “plaintiff

merely allege[d] the titles and salaries of” comparators and

that they “did the same work, without an explanation of what

that work entails”); United Probation Offs. Ass’n v. City of New

York, No. 21-CV-218, 2022 WL 875864, at *8 (S.D.N.Y. Mar. 24,

2022) (granting motion to dismiss against plaintiffs who failed

to “provide a sufficient description of the responsibilities,

requirements, or working conditions of” one class of workers

“that would allow the Court to plausibly infer that they perform

equal work to” the other).5

It is true that the bar is not high on this claim,

either, at the pleading stage: the Second Circuit has yet to

require plaintiffs to identify a specific comparator, for

example, Lavin-McEleny v. Marist Coll., 239 F.3d 476, 480 (2d

Cir. 2001); and all that is required in the comparison of job

duties is that they are “substantially equal.” Id. at 480-81.

But as with the pleading bar for discrimination in the failure

to promote, see Ghosh, 2023 WL 3612553, at *10, the bar is not

non-existent. For these reasons, Thompson’s Equal Pay Act claim

is dismissed.

Conclusion

For the reasons set forth above, plaintiff’s federal

claims are dismissed without prejudice. Having dismissed the

federal claims, we will decline to exercise supplemental

jurisdiction over the state-law claims. 28 U.S.C. § 1367(c)(2);

see also Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22,

31-32 (2025) (stating that when “the district court has

5 Cf. Chiaramonte v. Animal Med. Ctr., No. 13-CV-5117, 2014 WL 3611098,

at *5 (S.D.N.Y. July 22, 2014) (denying motion to dismiss where plaintiff

“alleged that she and [another employee] both performed similar work as

veterinarians practicing internal medicine; that, in addition to those

duties, she shouldered responsibilities that [the comparator] did not match;

and that, if anything, she worked under more demanding conditions than [the

comparator]”); Crawley v. Macy’s Retail Holdings, Inc., No. 15-CV-2228, 2016

WL 6993777, at *8-9 (S.D.N.Y. Nov. 29, 2016) (denying motion to dismiss where

the plaintiff’s comparator was in an “identical” role, and therefore

satisfied “equal responsibilities” and “similar working conditions”).

dismissed all claims over which it has original jurisdiction,”

it “need not exercise” supplemental jurisdiction).

Still, given her pro se status, Thompson will be

granted thirty days from the date of this order to amend the

complaint (notwithstanding that she previously declined

invitations to amend). Any amended complaint will completely

replace, not supplement, the prior complaint. Therefore, the

amended complaint must include all claims and factual

allegations against all defendants, must be captioned an

“Amended Complaint,” and should bear the same docket number as

this Memorandum and Order. If Thompson fails to file an amended

complaint within the time allowed or cure the deficiencies

identified in this order, the case will be dismissed with

prejudice, and judgment shall enter. The Clerk of Court is

respectfully directed to mail a copy of this order to Plaintiff

and to note the mailing on the docket.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State

s District Judge

D ated: October 21, 2025

Brooklyn, New Yo rk