United States District Court, W.D. New York
June 24, 2005.
BARBARA D. RACKER, Plaintiff,
ST. BONAVENTURE UNIVERSITY, Defendant.
The opinion of the court was delivered by: JOHN CURTIN, Senior District Judge
In this case, plaintiff Barbara D. Racker claims that she was
retaliated against by defendant St. Bonaventure University, in
violation of Title VII of the Civil Rights Act of 1964 and the
New York State Human Rights Law, when she refused to sign a
provisional contract for continued employment because she
believed it to be part of a discriminatory scheme to terminate a
fellow employee. Defendant moves (Item 5) to dismiss the
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. In response, plaintiff has filed a cross-motion (Item
12) for leave to amend the complaint to add a cause of action
under 42 U.S.C. § 1981.
For the reasons that follow, defendant's motion is granted, and
plaintiff's motion for leave to amend is denied.
Plaintiff alleges that she was employed by St. Bonaventure
University from the fall of 2000 through May 31, 2002, as
Director of the F. Donald Kenney Museum and Art Study
Wing/Curator of Prints and Drawings in the University's Regina A.
Quick Center for the Arts (Item 1, ¶ 6 & Ex. A). Each of the four
"Administrator" positions on the Quick Center's organizational tier was filled pursuant to a series of renewable,
one-year contracts, and each Administrator reported directly to
the Director of the Quick Center (id. at ¶¶ 8, 13, 15 & Ex. B
(Organizational Chart)). At the time of the events alleged in the
complaint, one of the Administrator positions (Director of the
Rigas Family Theater) was held by Zoe WalkerI-to, an
African-American female (id. at ¶ 8).
Plaintiff alleges that at some point in January 2003, she
became aware that Ms. Walker-Ito had made a claim of racial
discrimination in employment against the University (id. at ¶
9). Plaintiff further alleges upon information and belief that
then-University President Robert J. Wickenheiser and Joseph
LoSchiavo, who was hired by defendant in December 2002 as the
Quick Center's new Executive Director, responded to Ms.
WalkerI-to's claims "by forming a plan to rid themselves of
Walker-Ito without appearing to retaliate against Walker-Ito for
her claims of racial discrimination" (id. at ¶ 12). According
to plaintiff, the "plan" involved offering Quick Center
Administrators "provisional agreements" instead of renewable
year-to-year contracts, with the hope that Ms. Walker-Ito would
quit rather than accept a provisional appointment (id. at ¶
Plaintiff alleges that she was advised of this plan by Mr.
LoSchiavo sometime later in January 2003. Mr. LoSchiavo explained
that the provisional appointment would also mean a change in
plaintiff's title from "Director" to "Senior Curator" of the
Kenney Museum. When plaintiff voiced her concerns about this
proposed "demotion," Mr. LoSchiavo told her she had nothing to
worry about because "all the top people at the Quick Center were
being offered provisional agreements" to protect against
litigation by Ms. Walker-Ito (id. at ¶¶ 141-5). By letter dated February 12, 2003, Mr. LoSchiavo advised
plaintiff that he had undertaken a reassessment of the structure,
operations, and programming at the Quick Center, and had proposed
certain organizational changes for the department (Item 1, Ex.
C). As a result, it was determined that plaintiff's annual
Administrator contract would not be renewed at its expiration on
May 31, 2003. Instead, she would be offered a provisional
appointment to the position of "Senior Curator/Curator of Prints
and Drawings." Attached to the letter was a written proposal
setting forth the terms of the "provisional (at will)
appointment," including a biweekly salary of $1,461.54*fn1
Plaintiff alleges that after receiving the letter and the
proposed provisional appointment agreement, she told Mr.
LoSchiavo and other unnamed University administrators that she
would not sign the agreement because she believed that it was
part of a scheme to deceive and retaliate against Ms. Walker-Ito
(Item 1, ¶ 19). As a result of her refusal to sign the agreement,
her employment ended at the expiration of her contract on May 31,
2003 (id. at ¶ 20).
In her first cause of action, plaintiff claims that defendant
retaliated against her in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., because she
"refused to cooperate in [defendant]'s discriminatory and
retaliatory conduct directed at removing Ms. Walker-Eto [sic],
and for refusing to participate in a conspiracy in furtherance of
such unlawful conduct" (id. at ¶ 26). In her second cause of
action, plaintiff claims that defendant's conduct also violated
the New York State Human Rights Law (id. at ¶ 28). Defendant moves to dismiss the complaint for failure to state a
claim upon which relief can be granted. According to defendant,
even taking all of the facts alleged in the complaint as true,
plaintiff can prove no set of facts that would entitle her to
relief on her retaliation claim because (1) she cannot
demonstrate a good faith, reasonable belief that the defendant's
"provisional appointment" process constituted an unlawful
employment practice, (2) defendant took no adverse employment
action against her, and (3) she cannot establish a causal
connection between her purported protected activity and any
alleged adverse employment action.
For the reasons that follow, the court finds that plaintiff has
failed to allege facts that would entitle her to relief under
Title VII or the New York Human Rights Law, and that it would be
futile to grant leave to amend in order to allow her to assert a
claim under Section 1981.
I. Standard for Dismissal under Rule 12(b)(6)
Defendant seeks dismissal of the complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure on the ground
that plaintiff has failed to state a viable claim for retaliation
upon which relief can be granted under Title VII. Dismissal under
Rule 12(b)(6) is appropriate only when it is clear from the facts
stated in the complaint, in documents attached to the complaint
as exhibits, or in documents incorporated by reference in the
complaint, "that no relief could be granted under any set of
facts that could be proved consistent with the allegations."
Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2, 9 (2d Cir.
1996), cert. denied, 520 U.S. 1264 (1997); see also Hayden v.
County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999); Sullivan-Weaver v. New York Power
Auth., 114 F. Supp.2d 240, 242 (S.D.N.Y. 2000). While a court
considering a motion to dismiss must accept all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor, the court may properly
dismiss the case "if the plaintiff can prove no set of facts that
would entitle him to relief." Levy v. Southbrook Int'l Invs.
Ltd., 263 F.3d 10, 14 (2d Cir. 2001) (citations omitted), cert.
denied, 535 U.S. 1054 (2002).
In making this core determination, the court's task at the Rule
12(b)(6) stage is not to assess the likelihood that the plaintiff
will ultimately prevail on the merits, but simply to assess
whether the plaintiff is entitled to offer evidence in support of
the claims asserted in the pleadings. Sims v. Artuz,
230 F.3d 14, 20 (2d Cir. 2000). "Indeed it may appear on the face of the
pleading that a recovery is very remote and unlikely but that is
not the test." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.
1998), quoted in Sims, 230 F.3d at 20. Rather, the test is "the
legal feasibility of the complaint, not . . . the weight of the
evidence which might be offered in support thereof." Ryder
Energy Distribution Corp. v. Merrill Lynch Commodities Inc.,
748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted).
Defendant contends that even taking as true all of the facts
alleged in the complaint and evident on the face of the documents
attached thereto, plaintiff can prove no set of facts to support
any of the elements of a prima facie case of retaliation under
Title VII or the New York Human Rights Law. In response,
plaintiff contends that this argument misapprehends the Supreme
Court's recent holding in Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002). Swierkiewicz involved a claim brought by a Hungarian national
challenging his termination as an underwriter with a reinsurance
company. He claimed he was terminated based on his national
origin, in violation of Title VII, and on his age, in violation
of the Age Discrimination in Employment Act. The district court
granted the employer's Rule 12(b)(6) motion to dismiss, finding
that the plaintiff had not adequately alleged a prima facie
case of employment discrimination under the framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The
Second Circuit affirmed, finding the plaintiff's allegations to
be insufficient as a matter of law to support an inference of
discrimination. Swierkiewicz, 534 U.S. at 509.
The Supreme Court granted certiorari to resolve a split among
the Circuit Courts of Appeals on the question whether a complaint
in an employment discrimination lawsuit must contain specific
facts establishing a prima facie case of discrimination under
McDonnell Douglas in order to survive a motion to dismiss. The
Supreme Court found that the prima facie showing under
McDonnell Douglas "is an evidentiary standard, not a pleading
requirement," id. at 510, and held that a plaintiff alleging
employment discrimination need not plead all the elements of a
prima facie case so long as the complaint provides the
defendant "fair notice of what [the] claims are and the grounds
upon which they rest" in accordance with Fed.R.Civ.P. 8. Id.
at 514. The Court explicitly rejected the Second Circuit's
"heightened pleading standard in employment discrimination cases
. . .," finding it in conflict with Rule 8's requirement that the
complaint need only include "`a short and plain statement of the
claim showing that the pleader is entitled to relief.'" Id. at
512 (quoting Fed.R.Civ.P. 8(a)(2)). However, the Court noted
that a complaint alleging employment discrimination might still be dismissed under Rule
12(b)(6) "if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the
allegations." Id. (quoting Hishon v. King & Spalding,
467 U.S. 69, 73 (1984)).
In Timothy v. Our Lady of Mercy Medical Center, 2004 WL
503760 (S.D.N.Y. March 12, 2004), Judge Casey in the Southern
District of New York was presented with an argument similar to
the one facing this court with respect to the proper standard,
after Swierkiewicz, for assessing a Title VII retaliation claim
on a Rule 12(b)(6) motion. Judge Casey declined to adopt the
proposition that the pleading need only provide the defendant
with fair notice of the retaliation claim in order to survive a
motion to dismiss, for the following reasons:
First, such a position would require the Court to
overlook the plain language of Swierkiewicz.
Second, doing so would all but eviscerate Rule 12(b)
and its proviso that a complaint should be dismissed
when a plaintiff fails "to state a claim upon which
relief could be granted." Finally, the consequences
of such a position would be significant and adverse
to the purpose of Title VII. Its purpose is to assure
equality of employment opportunities, to eliminate
discriminatory employment practices, and to prohibit
retaliation against employees engaged in certain
protected activities. Requiring a plaintiff to plead
those facts, which if accepted as true would entitle
a litigant to legal relief, furthers this purpose.
There is no doubt that "discrimination is odious but
a frivolous or malicious charge of such conduct . . .
is at least equally obnoxious." Adopting the position
Plaintiff advances would allow such cases to survive,
at least until the summary judgment stage. Such a
result, however, would be unjust to those plaintiffs
who present meritorious claims, as it would strain
federal dockets and would mean that years would pass
before an aggrieved employee could present his claim
Timothy, 2004 WL 503760, at *6 (citations omitted).
I find Judge Casey's analysis of the impact of Swierkiewicz
to be correct, and his reasoning persuasive. Adopting this
approach, if the employment discrimination plaintiff satisfies
the "fair notice" pleading standard of Rule 8, the court must
still determine whether the plaintiff has pleaded facts sufficient to state a viable
claim upon which relief can be granted pursuant to Rule 12(b)(6).
In this case, as in Timothy, the court's review of the
complaint indicates that plaintiff has "give[n] the defendant
fair notice of what the plaintiff's claim is and the grounds upon
which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957),
quoted in Swierkiewicz, 534 U.S. at 512; see Timothy, 2004 WL
503760 at *5. Pursuant to Rule 12(b)(6), the court must next
determine whether plaintiff has stated a claim upon which relief
might be granted, utilizing the prima facie standard for
retaliation under Title VII as a measure of "legal feasibility."
Ryder Energy, 748 F.2d at 779.
Title VII provides that "[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his
employees . . . because [s]he has opposed any practice made an
unlawful employment practice by this subchapter. . . ."
42 U.S.C. § 2000e-3(a).*fn2 "The objective of this section is
obviously to forbid an employer from retaliating against an
employee because of the latter's opposition to an unlawful
employment practice." Galdieri-Ambrosini v. National Realty &
Development Corp., 136 F.3d 276, 291-92 (2d Cir. 1998) (citation
omitted). In order to ultimately prevail on her retaliation claims,
plaintiff must first present a prima facie case of retaliation,
consisting of the following four elements: (1) she was engaged in
a protected activity, (2) defendant was aware of her
participation in this activity, (3) defendant took adverse action
against her, and (4) a causal connection existed between the
protected activity and the adverse action. Fitzgerald v.
Henderson, 251 F.3d 345, 358 (2d Cir. 2001), cert. denied sub
nom. Potter v. Fitzgerald, 536 U.S. 922 (2002); see also
Timothy, 2004 WL 503760 at *4 (citing Cosgrove v. Sears,
Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993)). If she meets
this initial burden, the burden of production shifts to defendant
to introduce evidence of a legitimate, non-retaliatory
justification for its action. Tomka v. Seiler, 66 F.3d
66 F.3d 1295, 1308 (2d Cir. 1995), abrogated on other grounds by
Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998). Finally,
if defendant meets this burden, plaintiff then has the
opportunity to prove that the alleged justification is merely a
pretext for retaliation. Id. at 1309.
Defendant contends that based on the facts alleged in the
complaint and apparent on the face of attached or referenced
documents, plaintiff cannot establish any of the elements
necessary to meet her prima facie burden. With regard to the
first element engagement in a protected activity plaintiff
need not establish that the conduct she objected to actually
amounted to a violation of Title VII. See Manoharan v. Columbia
Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d
Cir. 1988). However, absent an actual violation, it must be
reasonable for the plaintiff to have believed that the challenged
conduct violated the law. Reed v. A.W. Lawrence & Co.,
95 F.3d 1170, 1178 (2d Cir. 1996). In this case, plaintiff alleges that she became aware of Ms.
Walker-Ito's complaints of race discrimination at some point in
January 2003, a short time before she was advised of the
defendant's new "provisional appointment" program. When plaintiff
expressed her reservations about the new program, she was
purportedly told not to worry because all of the Quick Center
Administrators were being offered provisional appointments as a
means of protecting the University against litigation by Ms.
Walker-Ito. Plaintiff claims that when she later received the
written offer for a provisional appointment, she "repeatedly
objected" to the offer, and refused to sign the provisional
agreement because she believed it to be "illegal and wrong" as an
attempt to retaliate against Ms. Walker-Ito (Item 1, ¶ 19).
Accepting these allegations as true, and considered together
with plaintiff's concession that she "neither has, nor had, any
means to assess the merits of Walker-Ito's claims" (Item 1, ¶
11), no reasonable basis exists for plaintiff to have believed
that the provisional appointment program constituted an unlawful
employment practice prohibited by Title VII. It is beyond dispute
that the program treated all similarly situated employees in the
Quick Center equally with respect to their continued employment.
The purported motivation of avoiding litigation, even if true,
cannot reasonably be construed to infer any discriminatory
conduct directed at Ms. Walker-Ito, or any other University
employee. Indeed, there are no facts alleged in the complaint
with respect to any adverse employment action suffered by Ms.
Walker-Ito, more favorable treatment of employees not in her
protected group, or any other circumstances surrounding the
provisional appointment program giving rise to an inference of
race discrimination. See Chambers v. TRM Copy Centers Corp.,
43 F.3d 29, 37 (2d Cir. 1994) (citing several examples of
circumstances contributing to permissible inference of
discriminatory intent). Simply put, the complaint contains no allegations of fact which would form the basis for a
good faith, reasonable belief that defendant violated Title VII,
or any other law, by offering provisional appointments to each of
the Quick Center's Administrators, instead of year-to-year
contracts. Cf. Manoharan, 842 F.2d at 593-94 (plaintiff
claiming retaliation for complaining about Columbia University's
selection process for assistant directorship position failed to
establish good faith, reasonable belief that the process, as
alleged, was properly within the definition of an "unlawful
employment practice"); Byerly v. Ithaca College,
290 F. Supp.2d 301, 308-09, n. 13 (N.D.N.Y. 2003) (plaintiff's conclusory
allegation that she was retaliated against for supporting the
hiring of two minority candidates was insufficient to demonstrate
involvement in opposing an unlawful employment practice),
aff'd, 113 Fed.Appx. 418, 2004 WL 2338141 (2d Cir. 2004).
In the absence of a factual basis in the pleadings to support a
reasonable belief that defendant's provisional appointment
program discriminated against Ms. Walker-Ito, plaintiff cannot
plead any set of facts to establish either the first or second
prima facie elements of her retaliation claim i.e., that
plaintiff participated in a protected activity, and that
defendant was aware of her participation in a protected activity.
In order to satisfy the third prima facie element adverse
employment action plaintiff must allege facts sufficient to
show that her "demotion" constituted a "materially adverse
change" in the terms and conditions of her employment. Galabya
v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).
To be materially adverse, a change in working conditions must be
"more disruptive than a mere inconvenience or an alteration of
job responsibilities." Crady v. Liberty Nat'l Bank and Trust
Co., 993 F.2d 132, 136 (7th Cir. 1993), quoted in Galabya, 202 F.3d at 640. Examples of
materially adverse employment actions include "termination of
employment, a demotion evidenced by a decrease in wage or salary,
a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other
indices . . . unique to a particular situation." Id. "The key . . .
is that the plaintiff must show that the [action] created a
`materially significant disadvantage.'" Galabya,
202 F.2d at 641 (quoting Harlston v. McDonnell Douglas Corp., 37 F.3d 379,
382 (8th Cir. 1994)).
In this case, plaintiff claims that the provisional agreement
offered by defendant changed her title from "Director" to "Senior
Curator" of the Kenney Museum (Item 1, ¶ 14), and "converted
[her] from an Administrator, with renewable one-year terms, to a
non-Administrator, employee-at-will" with indefinite terms (id.
at ¶ 18). However, it is well-settled that "[a] change in job
title without any change in duties, compensation, benefits or
reporting structure, is not an `adverse employment action'" for
Title VII purposes. Mitchell v. America Online, Inc., 286 F.
Supp.2d 325, 327 (S.D.N.Y. 2003) (citations omitted); see also
Evans v. City of New York, 2003 WL 22339468, at *9-10 (S.D.N.Y.
October 14, 2003) (no reasonable juror could find that
plaintiff's change in title and minor change in job
responsibilities constituted a material change in terms and
conditions of employment); Islamic Society of Fire Dept.
Personnel v. City of New York, 205 F. Supp.2d 75, 85-86
(E.D.N.Y. 2002) (citing cases rejecting various plaintiffs'
attempts to show adverse employment action based on subjective
feelings about employers' actions). As is evident from the face
of the 2002-03 Annual Administrator Contract and attached job
description for the Director position (Item 1, Ex. A), and the
offer of Provisional Appointment and attached job description for the Senior Curator position (id.,
Ex. C), plaintiff's compensation would have increased by $1,000
annually had she accepted the offer, and her benefits, job
duties, and reporting structure would have remained the same.
The court also rejects plaintiff's argument that she suffered
an adverse employment action as the result of the termination of
her employment. It is beyond dispute that her employment ended on
May 31, 2003, at the expiration of her then-existing one-year
contract, when she refused defendant's offer of continued
employment on a provisional basis. Indeed, this is precisely what
she alleges in her complaint (Item 1, ¶ 20). Under these
circumstances, the court has no difficulty concluding that
plaintiff's termination was the result of her own decision not to
accept the University's offer, rather than the result of any
adverse, retaliatory action on the part of the employer. See
Gourdine v. Cabrini Medical Center, 307 F.Supp.2d 587 (S.D.N.Y.
2004) (granting defendant's Rule 12(b)(6) motion to dismiss Title
VII discriminatory discharge claim where plaintiff who was not
offered continued employment at expiration of one-year employment
contract could not show adverse action), aff'd in relevant
part, 2005 WL 481652 (2d Cir. March 2, 2005).
Based on this analysis, plaintiff can prove no set of facts to
show that she suffered an adverse employment action as the result
of defendant's conduct.
Finally, and fundamentally, plaintiff has not alleged facts
sufficient to meet the fourth element of a prima facie case a
causal connection between the protected activity and the adverse
employment action. In her complaint, plaintiff alleges that she
became aware of the provisional appointment program in January
2003 (Item 1, ¶ 14), that she met with Mr. LoSchiavo later in
January 2003 to discuss her concerns "about the demotion and its terms" (id. at ¶ 15), that she received a letter from Mr.
LoSchiavo, dated February 12, 2003, which included a copy the
provisional appointment form (id. at ¶ 17), and that,
"[f]ollowing receipt of LoSchiavo's letter and provisional
agreement," she engaged in protected activity by voicing
objections about the program to LoSchiavo and other University
administrators (id. at ¶ 19). Plaintiff does not identify any
adverse action taken against her by the University after this
allegedly protected conduct. As discussed above, plaintiff's
employment was terminated, not as the result of defendant's
action, but as the result of operation of contract upon her
refusal to accept defendant's offer of a provisional appointment
at the expiration of her previous one-year term.
In Clark County School District v. Breeden, 532 U.S. 268
(2001), the Supreme Court found that the plaintiff could not meet
the causation requirement of her retaliation claim where the
statement she identified as an adverse employment action was made
before the employer received her complaint of discrimination.
Id. at 271-72; see also Beiter v. Runyon, 50 Fed.Appx. 32,
36, 2002 WL 31478913, at **4 (2d Cir. 2002) (no causal connection
where plaintiff did not make a complaint until after alleged
adverse actions occurred); Doria v. Cramer Rosenthal McGlynn,
Inc., 942 F. Supp. 937, 943 (S.D.N.Y. 1996) (no causal
connection where plaintiff alleged adverse employment actions
which occurred before the plaintiff's EEO complaint was made).
The same rationale applies in this case. It is beyond dispute
that plaintiff's purported complaints about the illegality of the
provisional appointment plan were made well after she was first
advised of the program, and after she received Mr. LoSchiavo's
letter containing written confirmation of their earlier
discussions and transmitting the new appointment form. Again,
this is precisely what she alleges in her complaint (Item 1, ¶ 19). As in Clark, plaintiff
cannot meet the causation requirement of her retaliation claim
since the conduct which she identifies as an adverse employment
action took place before the employer could have become aware of
plaintiff's complaints of discrimination. Accordingly, plaintiff
can prove no set of facts to establish the requisite causal
connection between any protected activity and any adverse
Based on this analysis, and having taken as true all of the
facts alleged in the pleadings and evident on the face of the
documents attached to the complaint, the court finds that
plaintiff can prove no set of facts to support any of the
elements of a prima facie case of retaliation under Title VII
or the New York State Executive Law.
III. Plaintiff's Cross-Motion to Amend
In response to defendant's motion to dismiss, plaintiff filed a
cross-motion seeking leave to amend the complaint in order to add
a cause of action for retaliation arising under
42 U.S.C. § 1981.*fn3 A motion seeking leave to amend is governed by
Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave "shall
be freely given when justice so requires." Fed.R.Civ.P. 15(a).
Notwithstanding the liberality of this general standard, the
court may deny leave to amend when, in the exercise of its "sound
discretion," John Hancock Mutual Life Insurance Co. v. Amerford
International Corp., 22 F.3d 458, 462 (2d Cir. 1994), it
determines that the proposed amendment would be futile. See
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
A proposed amendment to a pleading would be futile "if the
proposed new claim cannot withstand a 12(b)(6) motion to dismiss
for failure to state a claim, i.e., if it appears beyond doubt
that the plaintiff can plead no set of facts that would entitle
him to relief." Id. (citing Ricciuti v. N.Y.C. Transit Auth.,
941 F.2d 119, 123 (2d Cir. 1991)).
Allowing plaintiff to amend her complaint would clearly be
futile in this case. In order to establish a claim of retaliation
cognizable under § 1981, plaintiff must show that she was (1)
engaged in an activity protected under anti-discrimination
statutes, (2) the defendant was aware of plaintiff's
participation in the protected activity, (3) the defendant took
adverse action against plaintiff based upon this activity, and
(4) a causal connection existed between plaintiff's protected
activity and the adverse action taken by defendant. Lizardo v.
Denny's, Inc., 270 F.3d 94, 105 (2d Cir. 2001). These are the
very same prima facie elements required to establish a claim of
retaliation under Title VII.
As the preceding discussion amply demonstrates, plaintiff can
prove no set of facts to support any of the elements of a prima
facie case of retaliation under Title VII or the New York Human Rights Law. It would certainly be futile to grant
leave to amend in order to give her the opportunity to make the
same showing under a third statute.
Accordingly, plaintiff's cross-motion seeking leave to amend is
For the foregoing reasons, the court finds that plaintiff can
prove no set of facts that would entitle her to relief on her
claims of retaliation under Title VII or the New York State
Executive Law, and grants defendant's motion (Item 5) pursuant to
Rule 12(b)(6) to dismiss the complaint for failure to state a
claim upon which relief can be granted.
For the same reasons, plaintiff's cross-motion (Item 12) for
leave to amend is denied as futile.
The Clerk of the Court is directed to enter judgment in favor