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Wanda O. Hewitt v. New York City Department of

March 29, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.



Plaintiff pro se Wanda O. Hewitt ("plaintiff") originally filed this action on December 29, 2009, against her employer, the New York City Department of Health and Mental Hygiene ("defendant"). Her original complaint (Doc. No. 1) alleged discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("NYSHRL") related to her termination from her position as a Public Health Advisor, and her subsequent reinstatement without back pay to a non-supervisory position following the decision by an arbitrator at the Office of Collective Bargaining ("OCB") upon appeal of the termination decision. The facts alleged in the original complaint, broadly construed, are set forth in this Court's Memorandum and Order dated December 7, 2010 (Doc. No. 15) ("December 7 Order), familiarity with which is presumed.

In its December 7 Order, the Court dismissed plaintiff's complaint on defendant's motion. Plaintiff's Title VII claims based on her termination were dismissed with prejudice as unexhausted (retaliation) and time-barred (discrimination). Id. Plaintiff's original claims based on her reinstatement to a non-supervisory position without back were dismissed without prejudice. First, the Court held that her state law claims were absent from her original complaint, instead raised only in a subsequent, undated letter to the Court; as they could not be found in her complaint, they were dismissed, and in any event, the Court declined to exercise supplemental jurisdiction over them. With regard to her Title VII reinstatement claims, the Court noted that plaintiff "appear[ed] to allege that the arbitrator's decision on March 3, 2008 constituted unlawful discrimination in violation of Title VII," and would not suffer from the same procedural defects as her termination claims. However, the Court further held that while plaintiff generally alleged that she was "not of West Indian descent," she "fail[ed] to explain how this fact coincided with her reinstatement to a lower position without back pay, or how this fact affected the findings of an apparently neutral arbitrator." The Court added that while "plaintiff's statement describes a workplace dispute with her supervisor, it does not identify any discriminatory conduct." Moreover, the Court noted, "plaintiff has not alleged any facts whatsoever that the arbitration proceeding was tainted by the sort of bias to suggest that this Court should not give the arbitrator's decision the great deference that it is ordinarily due."

The December 7 Order accorded plaintiff leave to file an Amended Complaint to cure these deficiencies with respect to her reinstatement claims, directing her to include "a short, plain statement of facts sufficient to support plausible claims that Defendant discriminated against her on March 3, 2008 in violation of Title VII and the NYSHRL § 296." On January 6, 2011, plaintiff timely filed an amended complaint, its contents described more fully below. (Doc. No. 16.) Presently before the Court is defendant's motion to dismiss plaintiff's amended complaint. (Doc. No. 22.) For the reasons stated below, defendant's motion to dismiss is GRANTED.


A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to examine the legal, rather than factual, sufficiency of a complaint. Under Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." For a plaintiff's claim to withstand 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.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A court considering a Rule 12(b)(6) motion must "take[] factual allegations [in the complaint] to be true and draw[] all reasonable inferences in the plaintiff's favor." Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted). A complaint need not contain "'detailed factual allegations,'" but it must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, the plaintiff's complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.

"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, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). The determination whether "a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157--58 (2d Cir. 2007)).

In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court rejected the concept that there is a heightened pleading standard in discrimination cases, holding that the survival of a complaint in an employment discrimination case does not rest on whether it contains specific facts establishing a prima facie case under the standard set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Swierkiewicz, 534 U.S. at 510 ("The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement."); see also Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 71--72 (2d Cir. 2006) (applying Swierkiewicz to retaliation claims); Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006) (applying Swierkiewicz to discrimination claims under Title VII).

The Second Circuit has reiterated that Swierkiewicz continues to be the proper framework for analyzing whether a plausible claim for discrimination has been stated. See, e.g., Arista Records LLC v. Doe 3, 604 F.3d 110, 120--21 (2d Cir. 2010) ( "[A]lthough Twombly and Iqbal require factual amplification [where] needed to render a claim plausible, we reject [appellant's] contention that Twombly and Iqbal require the pleading of specific evidence or extra facts beyond what is needed to make the claim plausible." (internal quotations and citations omitted)); Boykin v. Key Corp., 521 F.3d 202, 213 (2d Cir. 2008) (noting that the Twombly Court "affirmed the vitality of Swierkiewicz"); Gillman v. Inner City Broad. Corp., 2009 WL 3003244, at *3 (S.D.N.Y. Sept. 18, 2009) ("Iqbal was not meant to displace Swierkiewicz's teachings about pleading standards for employment discrimination claims because in Twombly, which heavily informed Iqbal, the Supreme Court explicitly affirmed the vitality of Swierkiewicz."); accord E.E.O.C. v. Propak Logistics, Inc., 2010 WL 3081339, at *5 (W.D.N.C. Aug. 6, 2010) ("[E]ven after Twombly, an employment discrimination plaintiff is not required to plead specific facts but may rely on notice pleading requirements." (citing Boykin, 521 F.3d at 212--15)). In this circuit, the Swierkiewicz framework is also applied to pleadings under the NYSHRL. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007).

In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. Hayden v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). The Court must accept the factual allegations contained in the complaint as true, and view the pleadings in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party's favor. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).

While pro se plaintiffs must satisfy these pleading requirements, federal courts are "obligated to construe a pro se complaint liberally." See Harris, 572 F.3d at 71--72 (citations omitted). In other words, trial courts hold pro se complaints to a less exacting standard than they apply to complaints drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520--21 (1972); Boykin, 521 F.3d at 213--14 (citation omitted). Since pro se litigants "are entitled to a liberal construction of their pleadings, [their complaints] should be read to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (citation and internal quotation marks omitted). When a pro se plaintiff has ...

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