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Spence v. Bukofzer

United States District Court, S.D. New York

March 30, 2017



          Edgardo Ramos, U.S.D.J.

         Cardell Spence (“Plaintiff” or “Spence”) alleges thirteen claims, sounding primarily in employment discrimination and retaliation, against Kathleen Bukofzer (“Bukofzer”) and the City of New York Department of Housing Preservation and Development (“HPD”) (collectively, the “Defendants”). Before the Court is Defendants' partial motion to dismiss Plaintiff's Third Amended Complaint (“TAC”) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part.


         Ms. Spence, a sixty-one year old black female, has worked for HPD since 1980. TAC (Doc. 28) at ¶¶ 5, 16. When Spence began working for HPD as a clerk, she earned approximately $38, 000 a year. Id. at ¶ 17. In 1988, she was promoted to the position of Provisional Housing Inspector, and earned approximately $53, 000. Id. at ¶ 18. Spence explains that although her title was Provisional Housing Inspector, she did the same work as Housing Inspectors. Id. In 2011, a new law required that she take a test and reapply in order to continue working under the title of Housing Inspector. Id. at ¶ 18. In March 2012, Spence took and passed the test. Id. at ¶¶ 18, 21. She was not, however, given the title of Housing Inspector immediately. See Id. at ¶ 25.

         In approximately June 2013, HPD began to interview the individuals who passed the housing inspector test. Id. at ¶ 22. Spence was promoted to Housing Inspector in March 2014, approximately two years after she passed the test, and she received an annual salary of approximately $54, 000 a year. Id. at ¶ 25. She was assigned to the Bronx office, where Defendant Bukofzer was a Chief. Id. at ¶¶ 9, 25. As a new Housing Inspector, Spence was put on a one year probationary period, and her performance was subject to assessment on a quarterly basis. Id. at ¶ 26.

         Spence alleges a number of examples of discriminatory behavior that she was subjected to once she arrived at the Bronx Office. For example, on March 4, 2014, Bukofzer immediately issued her a report for leaving her post without permission. Id. at ¶ 28. But Spence claims that she was not informed to whom she should report and thought she had permission to leave her post to carry out basic job functions. Id. Defendants also regularly assigned Spence to conduct inspections by herself in unsafe “2-man areas” that were generally assigned to two or more inspectors for safety reasons. Id. at ¶ 29. Additionally, Spence alleges that black employees were called “monkeys” and “slaves.” Id. at ¶¶ 31-33.[2] Spence also alleges that Bukofzer posted signs around the office saying, “Not my monkey, not my circus” as a reference to the phrase “Not my job, not my problem, ” but she and her co-workers viewed the sign as racially derogatory. Id. at ¶ 33. Spence also cites a specific instance when she was excluded from attending a meeting and another when she was accused of lying in a meeting led by Bukofzer. Id. at ¶¶ 38-39. It was at this second meeting in May 2014 that Spence was demoted to performing radio dispatch duties with an annual salary of approximately $41, 000 a year. Id. at ¶ 40.

         In June 2014, Spence complained to HPD's internal Equal Employment Opportunity (“E.E.O”) Department about what she perceived to be a “racially hostile work environment” and the “continuing racial discrimination” she was subjected to. Id. at ¶¶ 41-42. She then followed up with another internal complaint on September 12, 2014. Id. at ¶ 44. This department was also responsible for conducting the quarterly evaluations that were required during Spence's probationary period as a Housing Inspector, but she notes it did not conduct them. Id. at ¶ 43.

         Spence was evaluated once during her probationary year, in September 2014-at approximately the same time she filed her second complaint of discrimination to the E.E.O. Department. Id. at ¶ 45. She was evaluated by supervisors named Wilson and Frias, and they rated her as “satisfactory” for her work during the probation period. Id. However, Bukofzer “decided to re-evaluate Ms. Spence herself, ” and issued Spence the lowest possible rating of “unsatisfactory.” Id. Defendants did not provide Spence with a copy of the evaluation for discussion or acknowledgement. Id. at ¶ 46. On October 17, 2014, Spence was called to a meeting where she was stripped of her Housing Inspector title and demoted to payroll clerk, with an annual salary of approximately $41, 000. Id. at ¶¶ 48-50. She remains in that position today. Id.

         On December 30, 2014, Spence filed a discrimination complaint against Defendants with the New York State Division of Human Rights (“SDHR”) and the Equal Employment Opportunity Commission (“EEOC”), charging unlawful discrimination on the basis of race and sex. Doc. 30, Ex. A (SDHR Verified Complaint in Spence v. City of New York Housing Preservation and Development, SDHR Complaint No. 10172622; Federal Charge No. 16GB500907). On June 16, 2015, the SDHR dismissed the complaint as time-barred because her allegations occurred more than one year prior to filing, and because their investigation “failed to uncover sufficient evidence to establish a causal nexus between [Defendants'] treatment of [Spence] and her race/color and sex.” See Doc. 30, Ex. B (SDHR Determination and Order After Investigation in Spence v. City of New York Housing Preservation and Development, SDHR Complaint No. 10172622; Federal Charge No. 16GB500907) (“SDHR Order”). On July 23, 2015, the EEOC provided Spence with a Right to Sue letter. TAC at ¶¶ 15, 50.


         Plaintiff commenced the instant action on August 5, 2015 by filing a complaint pro se against Bukofzer and HPD, and the matter was referred to the Court's Mediation Program. Docs. 1, 6. Spence then amended her complaint twice, on October 20, 2015 and January 21, 2016 respectively. Docs. 8, 20. A mediation session was held on February 29, 2016, and the mediator reported that settlement was reached on all issues. Doc. 25. On March 1, 2016, the Court then ordered that “the … action be … discontinued, without costs to either party, subject to reopening should the settlement not be consummated within thirty (30) days.” Doc. 26.

         Approximately five weeks later, on April 11, 2016, Spence retained counsel. Doc. 27. On April 14, 2016, Spence filed her TAC. Doc. 28. On April 28, 2016, Defendants filed their motion to dismiss the TAC, and briefing was completed on May 9, 2016. See Docs. 29, 33.

         Plaintiff wrote to the Court on January 24, 2017 notifying the Court that the parties did not reach settlement and were under the impression that the case thus remained active, as evidenced by the filing of the TAC and subsequent motion practice. Doc. 34. The Court directed Defendants to respond by February 1, 2017, see Doc. 35, but Defendants did not do so. In light of Defendants' failure to respond, the Court GRANTS Plaintiff's request to re-open the case in light of the parties' failure to reach a settlement agreement, and now considers the pending motion to dismiss.

         The TAC asserts thirteen causes of action in twelve counts:

• Section 1981 discrimination and retaliation (Count I);
• Title VII discrimination (Count II) and retaliation (Count III); • New York State Human Rights Law (“NYSHRL”) discrimination under New York State Executive Law § 296 (Count IV), retaliation under New York State Executive Law § 296(7) (Count V), and aiding and abetting discrimination under New York State Executive Law § 296(6) (Count VI);
• The New York City Human Rights Law (“NYCHRL”) discrimination under the New York Administrative Code § 8-107 (Count VII), retaliation under the New York Administrative Code § 8-107(1)(e) (Count VIII), aiding and abetting discrimination under the New York Administrative Code § 8-107(19) (Count IX), and vicarious discrimination under the New York Administrative Code § 8-107(13) (Count X);
• Intentional infliction of emotional distress (Count XI); and
• Negligent infliction of emotional distress (Count XII).

         Spence now withdraws seven of her thirteen claims-specifically, all the claims asserted under NYSHRL and NYCHRL. Plaintiff's Opposition to Defendants' Motion to Partially Dismiss the Third Amended Complaint (“Pl.'s Opp.”) (Doc. 32) at 3 (“[P]laintiff consents to the withdrawal of Counts using the SHRL and CHRL, however asserts that the allegations as to facts go to other counts of the complaint.”). Therefore, the claims that remain are alleged under § 1981, Title VII, and state tort law for negligent and intentional infliction of emotional distress.

         While the TAC labels each cause of action using the titles “discrimination” and “retaliation, ” the TAC also makes reference to Spence's belief that she was subjected to a hostile work environment. TAC at ¶ 1; see also Id. at ¶ 53 (“The aforementioned pervasive discrimination and adverse work consequences created by defendants was clearly an unlawful hostile work environment…”). The Court therefore construes the TAC to also be asserting hostile work environment discrimination claims. See, e.g., Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007) (“Although the complaint does not explicitly allege discrimination based on a hostile work environment, the complaint alleges ‘continued harassment' of Kassner and alleges facts from which we may infer pleading of hostile work environment claims…”); Meyer v. N.Y. Office of Mental Health, No. 12 Civ. 6202 (PKC), 2014 WL 1767818, at *6 (E.D.N.Y. May 2, 2014) (construing a hostile work environment claim where no “specific count” alleges hostile work environment, but the allegations sound in that relief).

         Defendants move to partially dismiss the TAC on grounds that: (1) Spence's claims are partially time-barred; (2) the retaliation claim under Title VII is barred by her failure to exhaust administrative remedies; (3) she fails to plead a plausible claim for discrimination; (3) she fails to plead a plausible claim for hostile work environment; (4) she fails to plead facts that plausibly establish a claim for municipal liability under § 1981; and (5) her state tort claims must be dismissed for failure to comply with notice of claim requirements. See Reply Memorandum of Law of in Further Support of Defendants' Motion to Partially Dismiss the Third Amended Complaint (“Defs.' Repl.”) (Doc. 33) at 1. Defendants do not challenge Spence's claims for discrimination against HPD pursuant to Title VII, or against Bukofzer pursuant to § 1981, but concede that they are all sufficient only with respect to the circumstances related to her demotion. See Id. at 20.


         When ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court is not required to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Id. If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 680.


         A. Statute of Limitations

         1. Title VII

         Defendants argue that to the extent Spence alleges discrete discriminatory or retaliatory acts occurring prior to March 5, 2014, (i.e. more than 300 days prior to the filing of her SDHR/EEOC complaint on December 30, 2014), her Title VII claims are barred by the applicable 300-day statute of limitations. Defs.' Mem. at 8. Claimants under Title VII must file a complaint with the EEOC “within 180 days after the alleged discriminatory act occurred, ” or “if [s]he has already filed the charge with a state or local agency that monitors fair employment practices, [she] must file [her] EEOC charge within 300 days of the alleged discriminatory act.” Falso v. Gates Chili Cent. Sch. Dist., 408 F. App'x 494, 495 (2d Cir. 2011) (summary order); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 (2002); EEOC v. Bloomberg L.P., 967 F.Supp.2d 816, 831 (S.D.N.Y. 2013) (citing 42 U.S.C. § 2000e-5(e)(1)). The filing deadlines for a charge of discrimination effectively act as a “statute of limitations” and a failure to timely file a charge acts as a bar to a plaintiff's action. Hill v. Citibank Corp., 312 F.Supp.2d 464, 472 (S.D.N.Y. 2004); see also Francis v. City of N.Y., 235 F.3d 763, 767 (2d Cir. 2000) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)).

         In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the Supreme Court held that 42 U.S.C. § 2000e-5(e)(1) “precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period.” Id. at 105. “[D]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination ... constitutes a separate actionable ‘unlawful employment practice.'” Id. at 114. Even ...

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