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Littlejohn v. City of New York

United States Court of Appeals, Second Circuit

August 3, 2015

DAWN F. LITTLEJOHN, Plaintiff-Appellant,
CITY OF NEW YORK, JOHN B. MATTINGLY, former Commissioner, AMY BAKER, BRANDON STRADFORD, Defendants-Appellees. [*]

Argued: November 5, 2014.

As Amended August 10, 2015.

Appeal from the United States District Court for the Southern District of New York. No. 13-cv-1116 -- Robert W. Sweet, Judge.

Appeal from a judgment of the United States District Court for the Southern District of New York (Sweet, J.) dismissing Plaintiff's hostile work environment, disparate treatment, and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e, et seq. (" Title VII" ), and 42 U.S.C. § § 1981 and 1983, and Plaintiff's sexual harassment claim under Title VII. We VACATE the district court's judgment with respect to Plaintiff's disparate treatment and retaliation claims against Defendants City of New York and Amy Baker, AFFIRM the dismissal of the other claims, and REMAND.

GREGORY G. SMITH, New York, NY, for Plaintiff-Appellant.

SUSAN PAULSON (Francis F. Caputo, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

Before: LEVAL, LYNCH, and DRONEY, Circuit Judges.


Droney, Circuit Judge :

Plaintiff Dawn F. Littlejohn appeals from a judgment of the United States District Court for the Southern District of New York (Sweet, J. ) entered on February 28, 2014. Littlejohn alleged that, while employed by the New York City Administration for Children's Services (" ACS" ), she was subjected to a hostile work environment and disparate treatment based on her race, and retaliated against because of complaints about such discrimination, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), as amended, 42 U.S.C. § § 2000e et seq., and 42 U.S.C. § § 1981 and 1983. Littlejohn also alleged that she was sexually harassed in violation of Title VII. Defendants, the City of New York (" the City" ) and three individuals who supervised Littlejohn at ACS, moved to dismiss Littlejohn's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted Defendants' motion to dismiss in its entirety, and Littlejohn appealed.

For the reasons set forth below, we VACATE the district court's judgment granting Defendants' motion to dismiss with respect to (1) Littlejohn's disparate treatment and retaliation claims against the City under Title VII, (2) Littlejohn's disparate treatment claim against Defendant Amy Baker under § § 1981 and 1983, and (3) Littlejohn's retaliation claim against Baker under § 1981; AFFIRM the dismissal of the other claims; and REMAND for proceedings consistent with this opinion.


I. Factual Background[1]

Littlejohn is an African-American woman with a master's degree in Industrial/Organizational Psychology from Columbia University. She began working at ACS on April 27, 2009, as the Director of its Equal Employment Opportunity (" EEO" ) Office. As Director, Littlejohn conducted investigations of claims of discrimination, trained staff, monitored hiring, counseled agency employees, organized diversity activities, and advised staff on EEO policy, duties which she alleges she performed satisfactorily.

From April to December 2009, Littlejohn's supervisor was ACS Deputy Commissioner Anne Williams-Isom, an African-American woman. Before Williams-Isom left ACS in December 2009, she gave Littlejohn an above-average performance review for her work over the previous eight months. Littlejohn does not allege that any discrimination or harassment occurred during the period in which she reported to Williams-Isom.

After Williams-Isom left ACS in late December 2009, Littlejohn began reporting to Defendant Amy Baker, a white woman and the Chief of Staff to ACS Commissioner and Defendant John B. Mattingly, a white man. Littlejohn's relationship with Baker quickly deteriorated. According to Littlejohn's complaint, Baker asked another employee " for negative information about [Littlejohn]" ; " physically distanc[ed] herself from [Littlejohn] at meetings" ; " increased [Littlejohn's] reporting schedule from an as-needed basis . . . to twice-weekly" ; " wrongful[ly] and unnecessar[il]y reprimand[ed] " Littlejohn; " required [Littlejohn] to re-create reasonable accommodation and EEO logs even though these logs were already in place" ; became " noticeably impatient, shook her head, blew air out of her mouth when [Littlejohn] talked in the presence of other managers" ; " held her head in disbelief, got red in the face, used harsh tones, removed [Littlejohn's] name from the regularly scheduled management meeting lists" ; " refused to meet with [Littlejohn] face-to-face, diminished [Littlejohn's] duties and responsibilities as EEO Director" ; " changed meetings that were supposed to be scheduled as in person bi-monthly meetings to twice a week over the phone discussions with [Littlejohn]" ; and " replaced [Littlejohn] at management meetings with [her] white male subordinate." Compl. ¶ ¶ 34, 53, 71, 74-75. Littlejohn also alleges that Baker sarcastically told her " you feel like you are being left out," and that Littlejohn did not " understand the culture" at ACS. Id. ¶ ¶ 36, 49.

Shortly after Littlejohn began reporting to Baker, the City announced in January 2010 that ACS would merge with the City's Department of Juvenile Justice (" DJJ" ). As a result of the merger, numerous employees from DJJ would be laid off, demoted, reassigned, or terminated. Littlejohn asked Baker to be included in the process of deciding which DJJ employees would be transferred or terminated " to ensure that procedures were in accordance with established . . . guidelines and policies," but Baker and other white managers allegedly " impeded, stymied, and suffocated" Littlejohn's effort to become involved in those decision-making meetings. Id. ¶ ¶ 44-45. Only after an Assistant Commissioner for the Department of Citywide Administrative Services demanded that Littlejohn be included in the meetings was she allowed to attend.

According to Littlejohn, Baker and Mattingly showed preferential treatment to white DJJ employees during the ACS/DJJ merger, while at the same time terminating, demoting, or unfavorably reassigning African-American and Latino/a DJJ employees. Littlejohn alleges that she complained to Baker and Mattingly about the " selection process and failure to abide by proper anti-discrimination policies and procedures." Id. ¶ 64. Specifically, Littlejohn believed that Defendants were improperly and purposefully failing to conduct an " adverse impact review and analysis," which was mandated by the City's Department for Citywide Administrative Services layoff manual. Id. ¶ 61. Around the same time, Littlejohn also complained to Baker about the lack of African-American women in management positions, lower management levels for African-American employees compared to white employees, and pay disparities between African-American men and their white counterparts. Littlejohn's complaints, however, were " to no avail." Id. ¶ 64.

In March 14, 2011, Littlejohn was involuntarily transferred from the EEO Office to the Office of Personnel Services (" OPS" ) and was allegedly demoted to the civil service non-managerial title of Administrative Staff Analyst, incurring a pay cut of $2,000. Littlejohn was replaced as Director of the EEO Office by Fredda Monn, a white female, who allegedly had no prior EEO experience, received more pay than Littlejohn did as EEO Director, and was provided with a " deputy EEO officer" to help with her work. Id. ¶ 78. Littlejohn claimed that the transfer and demotion were in retaliation for her complaints to Baker and Mattingly about " racial discrimination and violations of law" during the ACS/DJJ merger, and for her complaints about " her lack of involvement from an EEO perspective in the decision making process of DJJ and ACS Job actions." Id. ¶ ¶ 52, 68.

At OPS, Littlejohn began reporting to Brandon Stradford, the Director of Employee Relations. Stradford is an African-American man. The complaint in this action alleges that from March 2011 to September 2011, Stradford sexually harassed her through " ongoing repeated requests for dates, [requests for] sex, touching, showing of sexually explicit photographs of himself on vacation and physically exposing" himself. Id. ¶ 85. Littlejohn also claimed that Stradford " repeatedly threaten[ed] to further demote" her. Id. ¶ 87. Littlejohn alleges that she complained in April 2011 about Stradford's harassment to an Assistant Commissioner, who declined to act on her complaints. In April 2012, Littlejohn mentioned the harassment to Monn, now the Director of the EEO Office, and to an investigator at the Equal Employment Opportunity Commission (" EEOC" ), with " no results." Id. ¶ 93. According to Littlejohn, Monn did not provide her with an administrative form on which to complain about Stradford's sexual harassment.

On October 21, 2011, Littlejohn filed an Intake Questionnaire[2] with the EEOC, in which she alleged discrimination based on race and color as a result of Baker's and Mattingly's actions while she was EEO Director. Littlejohn's Intake Questionnaire did not claim discrimination based on sex or sexual harassment, nor did it mention Stradford. Instead, Littlejohn explained in the Intake Questionnaire that she believed Baker's and Mattingly's actions were discriminatory on the basis of race and color because they " fail[ed] to reassign" her to a position for which she was " suitably and well qualified" ; " incessant[ly] harass[ed] and degrad[ed]" her; retaliated against her for " complaining about common ACS practices" ; demoted her from " admin Staff Analyst M1 to Admin Staff Analyst (NM) and replaced [her with] a white female" ; " deliberately froze[] out and excluded [her] from all deliberations, meetings and responsibilities" ; " relegate[d] [her] to performing the most menial and clerical tasks" ; and " strip[ped] [her] of [her] pay level." Littlejohn Aff., Ex. 1.[3] On February 2, 2012, Littlejohn followed up her completed Intake Questionnaire by filing a formal Charge of Discrimination with the EEOC, claiming discrimination based on race and color, as well as retaliation for complaints about such discrimination. Despite the option on the EEOC charge form to claim discrimination based on sex, Littlejohn again did not make such a claim or mention Stradford or sexual harassment.

From April 27 to June 5, 2012, Littlejohn went on medical leave under the Family Medical Leave Act as a result of mental and physical health issues allegedly caused by her treatment at ACS. Littlejohn claimed that, while on leave, she was repeatedly asked for documentation of her medical condition, and that Stradford caused her paychecks to be improperly withheld. When Littlejohn returned from leave in June 2012, she was reassigned to a different manager, Claudette Wynter, the Director of Personnel Services and an African-American woman. However, according to her complaint, Stradford continued to sexually harass her. As a result, Littlejohn wrote a letter to Monn on August 22, 2012, in which Littlejohn thanked Monn for changing her supervisor but asked to be moved farther away from Stradford. Littlejohn sent a similar email to Wynter complaining about her close proximity to Stradford. Monn eventually followed up with Littlejohn in May 2013 regarding her original complaint of sexual harassment against Stradford; Monn stated that she had investigated the complaint and was unable to find evidence to substantiate a violation of department policy.

On September 24, 2012, Littlejohn was approved to return to medical leave as a result of a " mini stroke." Compl. ¶ ¶ 92, 97. It was on this date that Littlejohn initially claimed she was constructively discharged.[4] Approximately one month later, on October 23, 2012, Littlejohn wrote a letter to Kevin Berry, the Director of the EEOC New York District Office, regarding the EEOC charge she previously filed on February 2 that claimed discrimination based on race and color.[5] In this letter, Littlejohn stated that " I want to be sure that you are aware [of] my additional charge of hostile work environment-sexual harassment at the hands of my manager [Brandon Stradford] within the unit in which I was placed after being unfairly demoted." Littlejohn Aff., Ex. 11. Littlejohn explained that she suffered emotional distress due to Stradford's unwanted physical advances and his constant staring at her body. Littlejohn also asked Berry to " [p]lease let me know what additional information you may need." Id. There is no indication in the complaint filed in this action that the EEOC responded to Littlejohn's October 23 letter.

On November 19, 2012, after 180 days had elapsed since Littlejohn filed her EEOC charge alleging discrimination based on race and color, the EEOC sent Littlejohn a Notice of Right to Sue Letter. Subsequently, on November 29, 2012, she went to the ACS EEO Office and filed an internal " Complaint of Discrimination Form" alleging sexual harassment by Stradford, which she gave to Monn.

II. Procedural History

Littlejohn commenced this lawsuit pro se on February 15, 2013, and filed an amended complaint on September 23, 2013, after she retained counsel. The amended complaint alleged causes of action for hostile work environment and disparate treatment based on Littlejohn's race, and retaliation because of complaints about such discrimination, in violation of Title VII and 42 U.S.C. § § 1981 and 1983. The complaint also alleged sexual harassment in violation of Title VII. The Defendants are the City of New York, Mattingly, Baker, and Stradford.

On December 6, 2013, Defendants moved to dismiss all of Littlejohn's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted Defendants' motion in its entirety on February 28, 2014, concluding that Littlejohn failed to exhaust her administrative remedies as to her sexual harassment claim and failed to adequately plead her hostile work environment, disparate treatment, and retaliation claims. As to her § § 1981 and 1983 claims, the district court held in the alternative that Littlejohn failed to allege personal responsibility with respect to individual Defendants Mattingly and ...

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