United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
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
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.
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.
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. 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.
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.
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.
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.
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.
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.
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.
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
• Negligent infliction of emotional distress (Count
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.
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).
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.
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.
Statute of Limitations
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)).
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 ...