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Serrano v. New York State Department of Environmental Conservation

United States District Court, Second Circuit

December 20, 2013


LOWELL R. SIEGEL, ESQ., OFFICE OF LOWELL R. SIEGEL Altamont, New York. Attorneys for Plaintiff.



MAE A. D'AGOSTINO, District Judge.


Plaintiff, Alelie Serano, commenced this suit against her employer, New York State Department Environmental Conservation ("DEC"), and various DEC employees on October 24, 2012. Plaintiff was terminated from her position on January 25, 2013 and she filed an amended complaint on February 13, 2013. Pending before this Court is Defendants' motion to dismiss Plaintiff's amended complaint.


Plaintiff was employed at the DEC as a dispatcher from October 2006 until January 2013. See Dkt. No. 9 at 4. During this time, Plaintiff was the only dispatcher at the DEC of Puerto Rican/Hispanic descent. See id. at 5. One of the main reasons Plaintiff was hired was because of her fluency in Spanish. See id. Plaintiff worked in the Ray Brook office from October 2006 until February 2010, when she was transferred to Albany. See id. at 4. In 2007, Defendant Tupaj replaced Lieutenant Stabak as Plaintiff's main supervisor. See id. at 5. Defendant Gerould supervised the Central Dispatch Unit in the Central Office in Albany from May 2007 to April 2011. See Dkt. No. 11-12 at 1. He has had no supervisory control over the Central Dispatch Unit since his relocation in April 2011. See id.

On March 4, 2008, Plaintiff filed a charge of discrimination with the Affirmative Action Office of the DEC. See Dkt. No. 11-5 at 7. The Affirmative Action Office issued a finding of discriminatory behavior and recommended remedial action to ensure an end of such behavior. See id. at 9. On August 26, 2008, Plaintiff filed a complaint with the New York State Division of Human Rights ("DHR") alleging retaliation for filing her previous Affirmative Action complaint. See id. at 1. On October 8, 2008, Plaintiff filed another charge with the DHR alleging discrimination and harassment. See Dkt. No. 11-6 at 1. On March 23, 2009, the DHR issued a statement that "there is probable cause that Complainant may have been subjected to discriminatory treatment, including retaliation, and said treatment may be ongoing." See Dkt. No. 11-7 at 6. On March 30, 2010, Plaintiff filed another charge of discrimination with the DHR. See Dkt. No. 11-10 at 1. The DHR determined that this charge showed no probable cause of discrimination because, inter alia, the "allegations regarding ridiculing behavior from coworkers were already litigated during the December 2009 Division hearing." See Dkt. No. 11-11 at 2.

On or about May 18, 2012, Plaintiff filed a charge of discrimination and retaliation based on her race/national origin with the Equal Employment Opportunity Commission ("EEOC"). See Dkt. No. 11-3 at 2. The EEOC determined that it did "not seem that [they] would find a violation of the law" because "most of [Plaintiff's] allegations are untimely (beyond 300 days) or have already been investigated by the NYSDHR." See Dkt. No. 11-2 at 2. On July 26, 2012, the EEOC issued a right to sue letter, allowing Plaintiff ninety days to file a suit against the DEC. See id. at 3. Plaintiff commenced this action on the ninetieth day, October 24, 2012. See Dkt. No. 1.

On January 4, 2013, Plaintiff filed another hostile work environment and discrimination complaint with the Affirmative Action Bureau of the DEC. See Dkt. No. 11-13 at 6. Plaintiff was then terminated on January 25, 2013, by a letter stating in part, "[t]he reasons for this decision include your persistent and unfounded complaints that have disrupted the workplace, conduct that undermined the mission of the unit, insubordination, and time and attendance concerns." See Dkt. No. 15-3 at 2.

Several alleged instances of workplace conduct are relevant to this case. These instances include: (A) alleged conduct which has been previously adjudicated by the DHR, (B) undated allegations of conduct that have not been previously adjudicated, and (C) facts surrounding the service of Defendant Gerould.

A. Allegations of conduct adjudicated by the DHR

Plaintiff alleged that a co-worker, Angela Reynolds, complained about Plaintiff speaking Spanish in the workplace and Sergeant Cranker advised Plaintiff to consider relocating to Puerto Rico. See Dkt. No. 9 at 5-6. Plaintiff alleged several offensive items had been placed in her vicinity after filing a discrimination complaint at Ray Brook including: a can with "bullshit" written on the label, a set of "eyeballs, " a Mr. Bill doll, a bull's eye target, and a hangman's noose placed near Plaintiff's locker. See id. at 6. Defendant Gerould allegedly minimized the Affirmative Action Office's determination of a hostile work environment by calling the report "embellished." See id. Similarly, Defendant Tupaj allegedly minimized the counseling memoranda in relation to the Affirmative Action determination, calling them a "slap on the hand." See id. Plaintiff claims that Defendants were permitted access to her work e-mail so that her activities could be closely monitored and that Defendants engaged in "hyper-supervision" of Plaintiff. See id. at 6-7. Plaintiff was excluded from training given to other dispatchers at Ray Brook and Defendants allegedly failed to allow Plaintiff to engage in diversity training. See id. Plaintiff claims that she was required to provide a doctor's note when she missed work, and overtime was allegedly limited to her and given to others with less seniority. See id. at 7. Plaintiff alleges that she was struck in the head by Angela MacBride with a binder and that her car was vandalized by co-workers. See id. at 6-7.

B. Undated allegations of conduct that have not been previously adjudicated

Plaintiff alleged that co-workers Laurenzo and Nightengale referred to Plaintiff as a "spic" in the presence of other employees and that she was also referred to as "wildlife." See id. at 5-6. Similar to the objects placed near Plaintiff at Ray Brook, a can with "bullshit" on the label, a Mr. Bill doll, and a pair of eye balls were placed near Plaintiff in Albany after she had made known that these items offended her at Ray Brook. See id. at 7. In the Albany office, Plaintiff's co-workers allegedly discarded her personal items and Christopher Laurenzo and Jennifer Quade barricaded Plaintiff in her workstation. See id. Defendants allegedly excluded Plaintiff from training opportunities provided to others while she was in Albany. See id. at 7-8. Defendant Tupaj allegedly criticized Plaintiff for providing early sick leave notification and refused to address her seniority after her transfer to Albany. See id.

C. Facts surrounding service of Defendant Gerould

Defendant Gerould's business address is at the Avon regional office and he does not regularly receive business correspondence from the Albany office. See Dkt. No. 11-12 at 1. In November 2012, Defendant Gerould was handed a summons with his name on it and a copy of the complaint filed in this case. See id. at 2. The envelope containing the summons was addressed to the Albany office, delivered to the Avon office through intra-agency mail, and handed to Defendant Gerould by a member of the Avon support staff. See id. A professional process server served a summons and amended complaint on Defendant Gerould at his home on May 28, 2013. See Dkt. No. 15-4 at 2.

D. Pending before the Court

Plaintiff's amended complaint asserts (1) Title VII discrimination, retaliation, and hostile work environment claims on the basis of her race/color and ancestry/national origin, (2) New York Executive Law § 290 ("HRL") discrimination and retaliation claims, and (3) a 42 U.S.C. § 1983 equal protection violation. See Dkt. No. 9 at 12-15. Plaintiff has requested that, if any of her claims are ruled deficient, this Court grant leave to re-plead such claims. See Dkt. No. 15-5 at 30.

Defendants have filed a motion to dismiss Plaintiff's amended complaint arguing dismissal on seventeen different grounds. See Dkt. No. 11-13. Generally, Defendants contend as follows: (1) individuals are not subject to Title VII liability; (2) Plaintiff has failed to exhaust her administrative remedies; (3) Plaintiff has failed to state a claim upon which relief may be granted; (4) the statute of limitations bars certain aspects Plaintiff's claims; (5) the Eleventh Amendment bars Plaintiff's claims against Defendants in their official capacities; (6) Plaintiff has failed to allege Defendants' personal involvement; (7) Plaintiff's equal protection claim is duplicative of her Title VII allegations; (8) Plaintiff's HRL claims are barred by the election of remedies doctrine; (9) personal jurisdiction over Defendant Gerould has not been obtained; and (10) the Court should not exercise supplemental jurisdiction over Plaintiff's state law claims. See id.


A. Individual Liability under Title VII

"[I]ndividuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). Plaintiff has conceded this and has withdrawn her Title VII claims against the individual Defendants. See Dkt. No. 15-5 at 25 n.5.

Based on the foregoing, the Court grants Defendants' motion to dismiss on this ground and the Title VII claims asserted against Defendants in their individual capacity are dismissed.

B. Exhaustion

Filing a charge with the EEOC is "an essential element" of a Title VII claim and a prerequisite to bringing suit in federal court. See Butts v. City of N.Y. Dep't of Hous., 990 F.2d 1397, 1402 (2d Cir. 1993), abrogated by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998); see also Francis v. City of N.Y., 235 F.3d 763, 767-68 (2d Cir. 2000); 42 U.S.C. § 2000e-5(e). Jurisdiction is conferred if a claim was previously raised in an EEOC charge or if the federal claim is "reasonably related" to such a claim. See Butts, 990 F.2d at 1401-02. A claim is "reasonably related" to one raised in an EEOC charge (1) when it falls within the "scope of the EEOC investigation which can reasonably be expected to grow out of the charge;" (2) where the claim alleges retaliation for filing the EEOC charge, and it would likely be discovered during the EEOC investigation; and (3) "where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03 (citations omitted).

"In determining whether a particular claim is reasonably related to the plaintiff's EEOC complaint, [w]e look not merely to the four corners of the often inarticulately framed charge, but take into account the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir. 1992) (quotation omitted). This loose pleading standard has subsequently been limited to instances where the facts stated in the EEOC claim could have reasonably been expected to alert the EEOC to an additional, unstated claim. See McKinney v. Eastman Kodak Co., 975 F.Supp. 462, 467 (W.D.N.Y. 1997) (failing to find reasonable relatedness between disparate impact and retaliation claims when the employee claimed she was discharged in retaliation for previous complaints but did not allege any facts describing the process that employer implemented in deciding to terminate its employees). The focus is not necessarily on the specific claims charged with the EEOC, but rather "on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving.'" Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002)). While EEOC claims need not be artfully pleaded, they must state more than "vague, general allegations" to satisfy the EEOC exhaustion requirement. Butts, 990 F.2d at 1403.

In this case, Plaintiff filed an EEOC charge on March 16, 2012[1] alleging discrimination based on national origin and retaliation. See Dkt. No. 11-3 at 2. Plaintiff's EEOC charge states:

I am a Hispanic female. I have worked for Respondent since 2006. I have filed multiple national origin discrimination charges with the New York State Division of Human Rights against Respondent. In retaliation for having filed multiple discrimination charges against Respondent, I have been subjected to harassment and different terms and conditions of employment. Some of the most recent incidents occurred since Autum[n] [sic] 2011. My Supervisors continue to treat me unequally. My coworkers, Angela Reynolds, Alicia Bormer and Ann Mcbride are always being granted all sorts of training outside the Region with lodgin[g] [sic], food and accommodations being paid for[], but I have not received the same training opportunity.

See id.

1. Race Discrimination

The Second Circuit has held that, because "[a]n assertion of racial bias is conceptually distinct from a claim of discrimination on the basis of national origin, ' raising a national origin claim before the EEOC does not automatically suffice to alert the agency to investigate incidences of racial discrimination." Deravin, 335 F.3d at 201 (quoting Sinai v. New England Tel. & Tel. Co., 3 F.3d 471, 475 (1st Cir. 1993)). While national origin and race are often distinct elements, "the term Hispanic' may trigger the concept of race." Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 459 (S.D.N.Y. 1998) (finding "reasonable relation" between race and national origin when an employee described as Hispanic only checked the "national origin" box, and not the "race" box, in an EEOC charge).

In the present matter, the Court finds that, since Plaintiff asserted an EEOC national origin charge and described herself as Hispanic, the national origin charges are reasonably related to racial claims; and, therefore, Plaintiff has sufficiently exhausted her administrative remedies in regards to her claims of race discrimination. See Alonzo, 25 F.Supp.2d at 459. Defendants' motion to dismiss Plaintiff's Title VII race discrimination claims for failure to exhaust administrative remedies is denied.

2. Retaliation

In her EEOC charge, Plaintiff asserted that she had been "subjected to harassment and different terms and conditions of employment" in retaliation for filing discrimination charges against Defendants. See Dkt. No. 11-3. Defendants admit that Plaintiff satisfactorily exhausted her retaliation claim, but contend that the Title VII claim should be limited to the specific instance of retaliation - lack of training opportunities - that Plaintiff stated in her EEOC charge. See Dkt. No. 16 at 5.

The exhaustion requirement does not require a recital of each factual instance relied upon in a Title VII claim; rather, "a district court may hear Title VII claims that either are included in an EEOC charge or are based on [reasonably related] conduct subsequent to the EEOC charge ....'" Danials-Kirisits v. N.Y. State Office of Court Admin., No. 05-CV-800S, 2013 WL 1755663, *15 (W.D.N.Y. Apr. 24, 2013) (quoting Butts v. City of N.Y. Dep't of Hous., 990 F.2d 1397, 1401 (2d Cir. 1993)) ("Thus, a reasonably related claim applies only to alleged discriminatory conduct that occurred after the EEOC charge is filed") (internal quotations omitted).

Plaintiff has fulfilled the exhaustion requirement for her retaliation claim due to her specific statement of being denied training opportunities. See Dkt. No. 11-3 at 2. Plaintiff's allegation of "harassment and different terms and conditions of employment" in connection with her denial of training opportunities further supports her retaliation charge. See id. The Court finds these allegations sufficient to exhaust this claim; and, therefore, Defendants' motion to dismiss Plaintiff's Title VII retaliation claim for lack of exhaustion is denied.

3. Discrimination

Defendants contend that a plaintiff's reference in an EEOC charge alleging that she filed previous discrimination complaints as a reason for retaliation does not, without other mention of discrimination, sufficiently exhaust the discrimination claim. See Dkt. No. 16 at 5 (citing Shannon v. Ford Motor Co., 72 F.3d 678, 685 (8th Cir. 1996)). While Plaintiff's pro se EEOC charge may be inartfully pled, liberally construing Plaintiff's statements that coworkers received benefits not afforded to her, in connection with her reference to her multiple previous discrimination charges and her national origin, the Court finds that the allegations were sufficient to exhaust this claim. See Deravin v. Kerik, 335 F.3d 195, 201-02 (2d Cir. 2003). Specifically, Plaintiff mentioned that she has previously filed national origin discrimination charges against Defendants and that she was retaliated against for having filed those charges. See Dkt. No. 15-2. Thereafter, Plaintiff claims that she has been subjected to harassment and different conditions of employment, and that specifically identified coworkers have been granted training opportunities that she has not. See id. Liberally construed, these allegations are sufficient to withstand Defendants' motion to dismiss.

Based on the foregoing, Defendants' motion to dismiss Plaintiff's Title VII discrimination claim for ...

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