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Devore v. Neighborhood Housing Services of Jamaica Inc.

United States District Court, E.D. New York

March 16, 2017



          PAMELA K. CHEN United States District Judge

         Plaintiff Arthur G.H. DeVore III (“Plaintiff”), proceeding pro se, brings this action against his former employer, Defendant Neighborhood Housing Services of Jamaica Inc. (“Defendant” or “NHSJ”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Equal Pay Act (“EPA”), 29 U.S.C. § 206 et seq., and a state law claim for breach of contract.[1] Defendant now moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). The Court grants Defendant's motion in part and denies it in part. The Court dismisses Plaintiff's Title VII race-based disparate treatment and hostile work environment claims. Plaintiff's Title VII gender-based disparate treatment and retaliation claims, his EPA claim, and his state law breach of contract claim shall proceed.



         After receiving a $2-million grant to assist people affected by Hurricane Sandy, Defendant hired Plaintiff, a black man, as a youth counselor for $45, 000 per year. (Amended Complaint (“Am. Compl.”), Dkt. 5, at ECF 3, 7-8.)[3] Plaintiff worked for Defendant for a year and a half, until Defendant terminated him on September 30, 2015. (Am. Compl. at ECF 7.) While employed by Defendant, Plaintiff “realized that the grant was not being fulfilled properly and made numerous suggestions to management.” (Am. Compl. at ECF 8.)

         In May 2014, the NHSJ's leadership learned that its Youth Program Director, Thomas Ryer, had previously been incarcerated for violent offenses and thus was disqualified from continuing to serve as the program director. (Dkt. 18-2 at ECF 5-6.) As a result, Plaintiff took over the “responsibility of directing the [youth] program.” (Id. at 6.) From April 2014 until his termination on September 30, 2015, Plaintiff “did a great deal of extra work, ” including the work of eight other grant-funded positions that were required to run the program effectively, in addition to serving as the program's de facto director. (Am. Compl. at ECF 7-8; Dkt. 18-2 at ECF 7-8) On July 24, 2014, NHJS Executive Director Cathy Mickens asked Ryer why Plaintiff was doing Ryer's job and “all the work of the department”. (Dkt. 18-2 at ECF 5-6.)[4]

         Plaintiff was the only male employee performing director-level work in the Hurricane Sandy Program. (Am. Compl. at ECF 10-11.) The other directors at NHSJ were all women and receiving salaries of over $60, 000. (Id.) Defendant paid “different/higher wages to women directors/managers”, even though Plaintiff was “a male that was performing director/management work . . . .” (Dkt. 18-2 at ECF 5.)

         Frustrated that he was doing the work of a director and others, despite receiving only the salary of a youth counselor, Plaintiff applied for other jobs, and received an offer of a director-level job overseeing youth programs at another agency, which would have paid $62, 000. (Am. Compl. at ECF 8.) Around October 20, 2014, Defendant promised Plaintiff that he would be promoted to director after the current director (presumably Ryer) was let go, and promised Plaintiff a salary of approximately $65, 000. (Id.) Although Plaintiff told Defendant about his other offer, Defendant persuaded Plaintiff to stay with a promise of a director position and salary. (Id.) On September 28, 2015, Lori Miller, who had taken over as NHSJ's Executive Director, thanked Plaintiff for “carrying the department” and “acknowledged all the work [he] did as a director to help fulfill the grant.” (Dkt. 18-2 at ECF 6, 9.)

         Between May 2014 and March 3, 2015, Ryer, [5] a black man (who appeared to still hold the title of Youth Program Director), made multiple ”sexist” and “racial slurs” against white people and women, including “repeated comments about women being inferior, ” and women's “inability to effectively run a business”. (Am. Compl. at ECF 8, 10; Dkt. 18-2 at ECF 12.)[6]Plaintiff and other staff members complained numerous times to management about Ryer's comments, beginning on May 6, 2014. (Am. Compl. at ECF 8.) Plaintiff found Ryer's comments to be “embarrassing and inappropriate.” (Id.) Plaintiff shared his concerns about these discriminatory comments with Miller, who was then the interim Executive Director. (Id. at ECF 9.) He also made a complaint about these comments to the New York State Department of Human Rights (“NYSDHR”) on February 26, 2015. (Am. Compl. at ECF 4.)

         Defendant took multiple adverse employment actions against Plaintiff-who had “always received stellar performance evaluations”-for complaining about this discrimination, including: (1) failing to promote him to the director position for which he was already doing the work; (2) retaliatory write-ups for infractions that had not happened, such as looking at his smart-phone during meetings when Plaintiff had actually been taking notes on his smart-phone; (3) failing to pay Plaintiff at the $65, 000 rate that he had been promised; (4) defaming Plaintiff's work ethic and character in his employment evaluation; (5) attempting to deny Plaintiff his travel payments for work-related travel; and (6) terminating Plaintiff's employment on September 30, 2015. (Am. Compl. at ECF 9-10.) Plaintiff asserts that his firing was “ostensibly because of a lack of funding but in fact [was] for discriminatory and retaliatory reasons.” (Id. at ECF 10.)


         Plaintiff filed a charge with the NYSDHR and EEOC on February 26, 2015. (Am. Compl. at ECF 4.)[7] Plaintiff received a no-probable-cause determination from the NYSDHR on October 7, 2015, [8] and a Right to Sue letter from the EEOC on October 14, 2015. (Am. Compl. at ECF 5, 7.) Plaintiff also alleged that he “submitted multiple complaints to NHSJ . . . about adverse employment action in the form of discrimination, sexual stereotyping, bullying, harassment, and retaliation” on 7/24/2014, 11/10/2014, 11/24/2014, 12/19/2014, 12/24/2014, 1/6/2015, 2/5/2015, 8/17/2015, and 8/18/2015, and that he submitted an additional complaint to the NYSDHR/EEOC after his termination on 11/04/2015.[9] (Dkt. 18-2 at ECF 10.)

         Plaintiff timely filed this action on October 28, 2015. (Dkt. 1.) On November 17, 2015, the Court issued an order stating that Plaintiff's complaint failed to state a claim under Title VII or the Equal Pay Act, because the entirety of Plaintiff's claim was that he “filed a complaint with New York State Division of Human Rights charging NHSJ with unlawful discriminatory practice [sic] relating to employment because of opposed discrimination/retaliation, sex, Equal Pay Act, ” and Plaintiff had not attached the referenced findings. (Dkt. 4 at ECF 1-2 (quoting Dkt. 1 at ECF 4.)) The Court granted Plaintiff thirty (30) days to amend. (Dkt. 4 at ECF 5.) Plaintiff filed his Amended Complaint on December 11, 2015. (Dkt. 5.)

         On May 9, 2016, Defendant moved to dismiss the Amended Complaint under FRCP 12(b)(6).


         At the pleadings stage of the proceeding, the Court must assume the truth of “all well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Nevertheless, a complaint must plead “enough facts to state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, ” Iqbal, 556 U.S. at 678. The pleading standard is necessarily “less stringent” in the context of pro se litigants, whose complaints the Court is required to construe liberally and interpret as raising the strongest arguments they suggest. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008). This obligation “applies with particular force” when a pro se plaintiff alleges that a defendant has “violated her civil rights.” Crawley v. Macy's Retail Holdings, Inc., 15-CV-2228, 2016 WL 6993777, at *4 (S.D.N.Y. Nov. 29, 2016).


         A. McDonald Douglas Framework

         Employment discrimination claims pursuant to Title VII follow the three-stage, burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Littlejohn v. City of New York, 795 F.3d 297, 307-08 (2d Cir. 2015) (discussing this framework). At the pleading stage, “a plaintiff does not need to prove discrimination, or even allege facts establishing every element of the McDonnell Douglas prima facie case, but the facts alleged must give ‘plausible support to the reduced requirements' of the prima facie case.” Alleyne v. NAACP Legal Defense and Educational Fund, Inc., 14-CV-6675, 2015 WL 6869731, at *2 (E.D.N.Y. Nov. 6, 2015) (quoting Littlejohn, 795 F.3d at 311)).

         At this initial stage, “the prima facie requirements are relaxed.” Littlejohn, 795 F.3d at 307. The plaintiff can establish a prima facie case if she can show “(1) that she is a member of a protected class; (2) that she was qualified for employment in the position; (3) that she suffered an adverse employment action; and, in addition, has (4) some minimal evidence suggesting an inference that the employer acted with discriminatory motivation.” Id.

         If a plaintiff succeeds in establishing a prima facie case, then there is a “temporary presumption of discriminatory motivation, shifting the burden of production to the employer and requiring the employer to come forward with its justification for the adverse employment action against the plaintiff.” Id. (internal quotations and citations omitted). At the second stage, “once the employer presents evidence of its justification for the adverse action, joining issue on plaintiff's claim of discriminatory motivation, the presumption ‘drops out of the picture' and the McDonnell Douglas framework ‘is no longer relevant.'” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).

         After a defendant supplies such a justification, at the third stage, “the plaintiff must demonstrate that the proffered reason was not the true reason (or, in any event, not the sole reason) for the employment decision, which merges with the plaintiff's ultimate burden of showing that the defendant intentionally discriminated against her.” Id. at 307-08.

         For a plaintiff to survive a motion to dismiss on a Title VII claim in the absence of direct evidence of discrimination, “what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311; see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (explaining that the facts in the complaint must “provide ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.'” (quoting Littlejohn, 795 F.3d at 311, *8)). Courts making the plausibility determination should do so “‘mindful of the elusive nature of intentional discrimination” and the frequency by which plaintiffs must “rely on bits and pieces of information to support an inference of discrimination, i.e., a ‘mosaic' of intentional discrimination.” Vega, 801 F.3d at 86- 87 (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, n.8 (1981) and Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998)). The pleading requirements in a Title VII action are “very lenient, even de minimis.” Ming v. Mitchell, 972 F.Supp.2d 426, 428 (E.D.N.Y. 2013) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998)).

         Title VII prohibits two main forms of discrimination-disparate treatment, i.e., “quid pro quo” discrimination, and discrimination that leads to a hostile work environment. Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). Plaintiff has alleged both forms of discrimination in his Amended Complaint.

         B. Plaintiff's Disparate Treatment Claims Based on Race and Gender

         The Court grants Defendant's motion to dismiss Plaintiff's Title VII race-based disparate treatment claim, on the basis that it was not exhausted and Plaintiff has not plausibly alleged facts supporting an inference of race discrimination, but denies the motion as to his gender-based disparate treatment claim.

         1. Exhaustion of Disparate Treatment Claims

         As a preliminary matter, Defendant argues that Plaintiff has failed to exhaust his administrative remedies for his Title VII claims. “Before an individual may bring a Title VII suit in federal court, the claims forming the basis of such a suit must first be presented in a complaint to the EEOC or the equivalent state agency [e.g., the NYSDHR].” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006). Furthermore, the claimant must make the EEOC filing within 300 days of the alleged discriminatory conduct, and must receive a “Notice of Right to Sue” letter from the EEOC. Id. Claims not raised in an EEOC complaint “may be brought in federal court if they are ‘reasonably related' to the claim filed with the agency.” Id.; see also Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (articulating the same standard). A claim is considered reasonably related when it “(1) is within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination; (2) would constitute retaliation for filing a timely EEOC charge; and (3) constitutes further incidents of discrimination perpetuated in precisely the same manner as alleged in the EEOC charge.” Hansen v. Danish Tourist Bd., 147 F.Supp.2d 142, 151 (E.D.N.Y. 2001) (citing Butts v. City of N.Y. Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)); see Deravin, 335 F.3d at 201. The focus is on the factual allegations made in the EEOC charge, describing the discriminatory conduct. Williams, 458 F.3d at 70. “The central question is whether the complaint filed with the EEOC gave that agency ‘adequate notice to investigate discrimination on both bases.'” Id. (quoting Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003)).

         a) Plaintiff Failed to Exhaust His Race-Based Disparate Treatment Claim

         In Plaintiff's NYSDHR Complaint, filed in either February or March 2015, he alleged sex and age discrimination and wrote in “sexual stereotyping”, sexual harassment and retaliation “for filing an HR complaint.” (Dkt. 18-1, at ECF 11; Dkt. 18-2, at ECF 4.)[10] As acts of discrimination, Plaintiff alleged that Defendant harassed and intimidated him, denied him training, gave him disciplinary notices, or negative performance evaluations, and paid him unjust wages. (Dkt. 18-1, at ECF 11.) The initial NYSDHR complaint also stated that Plaintiff was alleging retaliation for opposing discrimination based on sex. (Id.) The second NYSDHR Complaint, filed on September 30, 2015 or November 4, 2015, alleged retaliation for filing the prior NYSDHR complaint. (Id.) In neither complaint did Plaintiff check off the box for race, color, or ethnicity or mention anything about race-based discrimination. (Id. at ECF 11-12.)

         The Court agrees with Defendant that Plaintiff failed to exhaust any claim of racial discrimination, as his NYSDHR complaint undisputedly did not mention any type of racial discrimination, and referenced only, and repeatedly, gender-based allegations, e.g., “sexual stereotyping”, “harassment”, and gender-based pay differences. (Dkt. 18-1, at ECF 11; Dkt. 18- 2, at ECF 4.) An administrative complaint alleging sex and age discrimination does not give the NYSDHR “adequate notice to investigate” racial discrimination. Williams, 458 F.3d at 70; see also Hawkins v. Wegmans Food Mkt., Inc., 224 F.App'x 104, 105 (2d Cir. 2007) (summary order) (“As Hawkins's conclusory allegations about his termination on the basis of his gender and learning disability would not alert the EEOC to investigate charges of race and age discrimination as well, it cannot be said that the allegations of race and age discrimination are reasonably related to the claims in Hawkins's EEOC filing . . . .”); Young v. Lord & Taylor, LLC, 937 F.Supp.2d 346, 353 (E.D.N.Y. 2013) (barring plaintiff's claims of race, ethnicity, and national origin discrimination when plaintiff only alleged disability discrimination in her NYSDHR Complaint); Morales v. City of N.Y. Dep't of Juvenile Justice, 10-Civ.-829, 2012 WL 180879, at *3-4 (S.D.N.Y. Jan. 23, 2012) (dismissing claims of gender, age, and disability discrimination after plaintiff only checked the boxes for race, national origin, and retaliation in his NYSDHR complaint). Unlike race and national origin, which may in some contexts be reasonably related, see Deravin, 335 F.3d at 201, a claim of sex discrimination does not alert the EEOC to investigate a claim of race discrimination.

         The Court, therefore, finds that Plaintiff failed to exhaust any disparate treatment claim based on race and that claim, to extent Plaintiff is alleging it, is dismissed.

         b) Plaintiff Has Exhausted His Gender-Based ...

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