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Batiste v. The City University of New York

United States District Court, S.D. New York

July 7, 2017

THE CITY UNIVERSITY OF NEW YORK, RESEARCH FOUNDATION OF CUNY, CELESTE CLARKE, individually and in her official capacity, and SURI DUITCH, individually and in her official capacity, Defendants.


          VALERIE CAPRONI, United States District Judge

         Plaintiff Beverly Batiste brings this action against The City University of New York (“CUNY”), the Research Foundation of The City University of New York (“RFCUNY”), Celeste Clarke (“Clarke”), and Suri Duitch (“Duitch”) (collectively, “Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), the Executive Law of the State of New York, New York State Human Rights Law, Section 296, et seq. (“NYSHRL”), and the Administrative Code of the City of New York, New York City Human Rights Law, Section 8-101, et seq. (“NYCHRL”). Plaintiff also alleges breach of contract and breach of fiduciary duty. Defendants have moved to dismiss the Complaint for failure to state a claim. For the following reasons, Defendants' motions are GRANTED.


         Plaintiff, a black female over the age of forty, was employed by RFCUNY between May 1, 2002 and October 26, 2015. Am. Compl. ¶¶ 29, 74 (Dkt. 15). RFCUNY is a private, not-for-profit education corporation that supports CUNY faculty and staff in identifying, obtaining and administering government and private funding. Decl. of Christopher G. Gegwich in Supp. of RFCUNY and Clarke's Mot. to Dismiss the First Am. Compl. (“Gegwich Decl.”), Ex. A (Dkt. 30-1). When employed by RFCUNY, Plaintiff provided office support and handled programs and office operations at CUNY and RFCUNY. Am. Compl. ¶¶ 31, 32. As of June 2012, Plaintiff's title was Administrative Assistant, but she performed tasks generally given to office managers and assistant managers. Id. ¶¶ 33, 34. Plaintiff's job performance was excellent. Id. ¶ 35.

         In May 2015, Clarke became Plaintiff's direct supervisor. Id. ¶ 36. Clarke and her supervisor, Duitch, recognized that Plaintiff's salary and title did not match the work she was performing. Id. ¶¶ 38, 41, 42. To that end, on July 20, 2015, Clarke told Plaintiff that she “wanted to discuss . . . getting [Plaintiff's] job title changed to reflect [her] job duties and a salary increase.” Id. ¶ 44. Instead of receiving a promotion, however, on August 11, 2015, in a meeting with Clarke and Duitch, Plaintiff received a Corrective Action Plan (“CAP”). Id. ¶ 45. Pursuant to the CAP, Plaintiff was required to improve her performance by November 3, 2015, or face disciplinary action, including termination. Id. ¶ 51. During the August 11 meeting, Duitch threw a pen on the table in the direction of Plaintiff. Id. ¶ 46. There were no complaints or write-ups against Plaintiff before or during the time Clarke and Duitch were Plaintiff's supervisors; Plaintiff believes Defendants' “malicious and discriminatory intent[, ]” rather than Plaintiff's performance, was the reason for the CAP. Id. ¶¶ 49, 50, 52. Clarke accused Plaintiff of being disrespectful when she learned she was not being promoted. Id. ¶ 55.

         The following day, Plaintiff complained to Eric Hoffman (“Hoffman”), the University Director for Collaborative Programs, about the unfair and inaccurate write-up she had received. Id. ¶ 53. Plaintiff also complained to Duitch about Clarke and the CAP, but Duitch refused to accept Plaintiff's rebuttal to the CAP or her complaint, declined to conduct an investigation, and suggested it would be a waste of time to submit a rebuttal. Id. ¶¶ 58, 59. Plaintiff also complained to the Senior Director of Human Resources, who refused to review Plaintiff's complaint because it was “voluminous.” Id. ¶¶ 60, 61. The Amended Complaint does not allege that any of these complaints referenced discrimination. Id. ¶¶ 53, 58-61.

         In September 2015, as requested by Clarke, Plaintiff scheduled an exterminator to come to the building where she worked. Id. ¶¶ 63, 64. Clarke also ordered an exterminator. Id. ¶ 65. As a result of the duplicative exterminators, Plaintiff received another CAP on October 8, 2015. Id. ¶ 62; Decl. of Rudy A. Dermesropian in Opp. to RFCUNY and Clarke's Mot. to Dismiss (“Dermesropian Decl. Opp. RFCUNY”), Ex. 3 (Dkt. 35-3). On October 26, 2015, Clarke and Duitch terminated Plaintiff's employment. Id. ¶ 74.

         Plaintiff alleges the following facts to support her claim that she was discriminated against: an Asian female who reported directly to Clarke, Mary Louie, had “performance issues” but received a promotion and salary increase rather than being terminated, id. ¶ 69; Hoffman told Plaintiff that John Mogulescu, a Dean at CUNY (“Dean Mogulescu”), had stated, in substance, that Plaintiff, as a black woman, needed to be supervised by a black woman, Id. ¶ 70; and Plaintiff was replaced by a younger employee. Id. ¶ 79.

         After being terminated, Plaintiff filed a charge of race discrimination against CUNY with the U.S. Equal Employment Opportunity Commission (“EEOC”). Dermesropian Decl. Opp. RFCUNY, Ex. 3. Plaintiff did not name RFCUNY in the EEOC charge, and Plaintiff selected only “race discrimination” among the options provided on the EEOC charge form. Id. The EEOC dismissed the charge in January 2016. Gegwich Decl., Ex. C (Dkt. 30-3).

         On July 14, 2016, Plaintiff filed an Amended Complaint with this Court. She brings a mélange of claims against Defendants, but she brings federal law claims against only CUNY and RFCUNY. Plaintiff brings Title VII claims for race and color discrimination, hostile work environment, and retaliation against CUNY and RFCUNY; Plaintiff brings similar claims against Clarke and Duitch, but pursuant to NYSHRL and NYCHRL. Plaintiff brings an ADEA age discrimination claim against only RFCUNY, an NYSHRL age discrimination claim against all Defendants, and an NYCHRL age discrimination claim against RFCUNY, Clarke, and Duitch. Finally, Plaintiff alleges a breach of contract claim against CUNY and RFCUNY.


         For the reasons discussed below, Plaintiff's Title VII and ADEA claims against CUNY and RFCUNY are dismissed. Plaintiff failed to exhaust administrative remedies with respect to her claims for age discrimination, hostile work environment, and retaliation, and she failed to allege sufficient facts to state a plausible claim for race, color, or age discrimination, hostile work environment, or retaliation pursuant to Title VII and the ADEA. Because the Court dismisses all of Plaintiff's federal law claims, the Court declines to exercise supplemental jurisdiction over the remaining state and local law claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which it has original jurisdiction.”).

         I. Legal Standard

         In reviewing a motion to dismiss under Rule 12(b)(6), courts “accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.” Meyer v. JinkoSolar Holdings Co., Ltd., 761 F.3d 245, 249 (2d Cir. 2014) (quoting N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119 (2d Cir. 2013) (alterations omitted)). To survive a motion to dismiss for failure to state a claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “At this stage, dismissal is appropriate only where [Plaintiff] can prove no set of facts consistent with the complaint that would entitle [her] to relief.” Meyer, 761 F.3d at 249.

         II. Failure to Exhaust Administrative Remedies

         Although Plaintiff exhausted her administrative remedies with respect to her race and color discrimination claims against CUNY and RFCUNY, she failed to exhaust her age discrimination, hostile work environment, and retaliation claims.

         A. Absence of RFCUNY in the EEOC Complaint

         In order to bring a federal lawsuit under Title VII or the ADEA, a plaintiff must first exhaust her administrative remedies with the EEOC. 42 U.S.C. § 2000e-5(e); Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991) (Title VII); 29 U.S.C. § 626(d); Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 562 (2d Cir. 2006) (ADEA). In general, a plaintiff may not bring a civil suit under Title VII or the ADEA against a party not named as a respondent in the EEOC charge. France v. Touro Coll., No. 14 CIV. 4613 (NGG) (CLP), 2016 WL 1105400 at *4 (E.D.N.Y. Feb. 16, 2016) (Title VII); Hanley v. Chi. Title Ins. Co., No. 12 CIV. 4418 (ER), 2013 WL 3192174 at *4 (S.D.N.Y. June 24, 2013) (ADEA). There is an exception to the general rule which permits a plaintiff to proceed with a Title VII or ADEA action against a party not named in the EEOC charge “where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge.” Johnson, 931 F.2d at 209 (Title VII); see also Jackson v. N.Y.C. Transit, No. 05 CIV. 1763 (FBLB), 2005 WL 2664527, at *3 (E.D.N.Y. Oct. 19, 2005) (ADEA).

         The Second Circuit has adopted a four part test to determine whether an identity of interest exists, taking into consideration:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Johnson, 931 F.2d at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)). In addition to these factors, Johnson implied a fifth factor relevant to the identity of interest inquiry: whether the defendant, although not named as a respondent in the caption, is named in the body of the charges as having played a role in the discrimination. Hanley, 2013 WL 3192174, at *5. “This multi-factor test is not a mechanical one, and no single factor is dispositive.” Zustovich v. Harv. Maint., Inc., No. 08 CIV. 6856 (HB), 2009 WL 735062, at *8 (S.D.N.Y. Mar. 20, 2009).

         In the present case, there is an identity of interest between RFCUNY and CUNY. First, the roles of RFCUNY and CUNY are overlapping and somewhat unclear. Plaintiff alleges that CUNY exercises control over RFCUNY's employees, Am. Compl. ¶ 30, and RFCUNY “works closely with CUNY” in its mission to support CUNY faculty and staff in identifying, obtaining, and administering outside funding. Gegwich Decl., Ex. A (Dkt. 30-1). “Thus, is it not surprising that an employee might not understand, in filing an EEOC complaint, that both [RFCUNY] and [CUNY] should be named.” Zhao v. State Univ. of N.Y., 472 F.Supp.2d 289, 305 (E.D.N.Y. 2007).

         Second, under the circumstances of this case, RFCUNY and CUNY have similar interests with respect to conciliation and compliance. Clarke, an employee of RFCUNY, and Duitch, an employee of CUNY, were both directly involved in Plaintiff's termination, Am. Compl. ¶ 74, and Plaintiff described Clarke's involvement in the EEOC charge. Dermesropian Decl., Opp. RFCUNY, Ex. 3. Clarke and Duitch's joint involvement in Plaintiff's termination establishes that RFCUNY and CUNY possess “a commonality of interests.” See Dortz v. City of N.Y., 904 F.Supp. 127, 143 (S.D.N.Y ...

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