United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
VALERIE CAPRONI, United States District Judge
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
“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.
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.
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.
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.
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. ¶
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.
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).
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.
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
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.
Failure to Exhaust Administrative Remedies
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.
Absence of RFCUNY in the EEOC Complaint
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).
Second Circuit has adopted a four part test to determine
whether an identity of interest exists, taking into
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).
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
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 ...