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Percy v. State

United States District Court, S.D. New York

September 7, 2017


          OPINION & ORDER


         Plaintiff Violene Percy ("Percy") brings this action against Defendants State of New York - Hudson Valley DDSO ("HVDDSO"), Local 412 of the CSEA, Inc. ("CSEA"), [1] and Basil Townsend ("Townsend") (collectively, "Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e el seq., and New York State Human Rights Law ("NYSHRL"), NY. Executive Law §§ 290 et seq. Before this court are Defendants' motions to dismiss. For the foregoing reasons, CSEA's and Townsend's motions are GRANTED in part and DENIED in part, and HVDDSO's motion is GRANTED.


         The following facts are derived from Plaintiff's Complaint, (ECF No. 1), unless otherwise noted.

         On August 7, 2003, Plaintiff was hired by HVDDSO as an Assistant Development Aid. (Compl. ¶ 8.) Plaintiff was later promoted to the position of House Manager. (Id.) While employed by the Hudson Valley Developmental Disabilities State Office (“HVDDSO”), at an unspecified time, Plaintiff was hired by CSEA as a “delegate, ” and in that capacity, she attended conventions and meetings on behalf of CSEA. (Id. ¶ 9.) CSEA paid for Plaintiff to engage in these activities, including by reimbursing her for travel and expenses. (Id.) Plaintiff worked for both HVDDSO and CSEA until she suffered “a constructive termination” on September 11, 2014 as a result of “[Defendants'] retaliatory acts.” (Id. ¶ 10.)

         In January 2014, Plaintiff began to experience a “series of acts of sexual harassment” perpetrated by Defendant Townsend, who served as her Supervisor at both HVDDSO and CSEA. (Id. ¶ 12.) Specifically, Townsend began to “hit on” Plaintiff, suggesting to Plaintiff that she and Townsend should “sleep together.” (Id. ¶ 12.) During this same time, in or around January 2014, while Plaintiff was working an incident (the “Incident”) occurred involving a client served by HVDDSO. (Id. ¶ 13.) As part of HVDDSO's investigation of the Incident, a series of meetings took place. (Id.) Plaintiff states that Townsend continued to sexually harass Plaintiff “through and in relation to this investigation, … [by] refus[ing] to represent the Plaintiff [on behalf of CSEA] at several meetings related to the incident despite having represented other individuals involved in the same incident.” (Id.) Plaintiff contends that because Townsend did not represent her himself, she was treated differently than the other individuals involved in the Incident in retaliation for declining his sexual advances. (Id. at ¶ 14.)

         In April 2014, Plaintiff was in the coffee room at the CSEA office when Townsend entered. (Id. at ¶ 15.) When a secretary left the room, leaving Plaintiff and Townsend alone, he began making inappropriate comments and gestures to Plaintiff, including that they could “satisfy each other … making kisses gestures toward … Plaintiff … putting his tongue out and quickly moving it up and down, and side to side. (Id.) This behavior continued although Plaintiff told Townsend to stop. (Id.)

         On May 5, 2014, Plaintiff asserts that a secretary of CSEA told Plaintiff to call Townsend. (Id. at ¶ 16.) Plaintiff called Townsend, and he told her he “wanted to do her, that he [could] satisfy her, that he [had] the tool to make her scream, and he wanted to know how big her private … was.” (Id.) Plaintiff alleges that she told Townsend to stop on this occasion as well. (Id.) Later that month, on May 27, 2014, Plaintiff, Townsend and other CSEA members were on an Amtrak train returning from a convention in Atlanta. (Id. at ¶ 17.) Townsend told a person that was next to Plaintiff to switch seats with him so he could sit next to Plaintiff. (Id.) Townsend sat next to her and began asking her “why she was in love with a white man, telling her that she should be with a black man only, and that because she is from an island she should be with an island guy like himself, ” and that he “knew how to take care of her (sexually).” (Id.) Plaintiff told Townsend to stop, that nothing would transpire between them, and changed seats. (Id.)

         After the May 27, 2014 incident on the train, Townsend continued to make sexual comments toward Plaintiff, “inappropriately placed his hands on her back, made comments regarding her job, and eventually pressured … Plaintiff to resign as a delegate of CSEA because she would not accept his sexual advances.” (Id. at ¶ 18) (emphasis added).

         Plaintiff asserts that at all times relevant to the Complaint, Defendants were aware of the of the sexual harassment that Plaintiff suffered at the hands of Townsend, but took no action to ensure the harassment would stop. (Id. at ¶ 19.)[2] Presumably as to her employment at HVDDSO, Plaintiff asserts that on June 26, 2014, she was placed on an administrative leave (id. at ¶ 21), and suspended on July 10, 2014 (id. at ¶ 22).

         On or about September 2014, Plaintiff alleges she was “forced by CSEA and Townsend to either resign and … [retain] her retirement option, or stay … and dispute … [the] charges” that had apparently arisen against her in relation to the Incident. (Id. at ¶ 23) (emphasis added). Plaintiff asserts that Defendants Townsend and CSEA threatened Plaintiff with arrest and criminal charges relating to the Incident if she chose to dispute them rather than resigning (id.), although other employees involved in the same Incident were represented by CSEA and Townsend without being pressured to resign, or threatened with arrest or criminal charges. (Id.) Plaintiff also alleges that Townsend and Pamela Alexander, another CSEA employee that routinely represented employees during employment disputes on behalf of CSEA, told Plaintiff they would not file a petition on her behalf or represent her in connection with the Incident. (Id.) Subsequently, on September 11, 2014, Plaintiff alleges she suffered a “constructive termination” because she was forced to resign from HVDDSO in retaliation for reporting the sexual harassment, refusing Townsend's advances, and because CSEA failed to provide equal representation to her in connection with the aforementioned Incident. (Id. at ¶ 24.)

         Plaintiff concludes her allegations by cursorily asserting that HVDDSO “constructive[ly] terminat[ed]” her “based upon discriminatory factors including sexual harassment.” (Id. at ¶ 25.)[3]

         Finally, according to the Complaint, throughout Plaintiff's employment with both HVDDSO and CSEA, she received “excellent evaluations, ” (id. at ¶ 11), and at all relevant times she performed her duties in a satisfactory manner (id. at ¶ 20).


         Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] 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)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. To survive a motion to dismiss, a complaint must supply “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is “‘not bound to accept as true a legal conclusion couched as a factual allegation, '” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In determining whether a complaint states a plausible claim for relief, a district court must consider the context and “draw on its judicial experience and common sense.” Id. at 662. A claim is facially plausible when the factual content pleaded allows a court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

         As to a motion brought under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). It is well-settled that the “plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002)). In reviewing a Rule 12(b)(1) motion to dismiss, the court “must accept as true all material factual allegations in the complaint, but [the court is] not to draw inferences from the complaint favorable to plaintiff.” J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits.”


         Plaintiff alleges that she was discriminated against when Defendant Townsend sexually harassed her, and retaliated against for reporting said harassment in violation of Title VII and NYSHRL. (See, e.g., Compl. ¶ 43) (stating, in cause of action under Title VII that she “seeks all remedies … for discrimination based on sexual harassment by Defendant Townsend, and the retaliation of Defendant CSEA and Defendant Townsend for reporting the sexual harassment of Defendant Townsend”); (id. at ¶ 48) (alleging, under NYSHRL cause of action, that “Defendants” discriminated against Plaintiff for reporting sexual harassment by Townsend.)

         I. Defendant CSEA[4]

         a. Statute of Limitations

         Defendant CSEA asserts that the bulk of Plaintiff's allegations are time-barred, and that the only events that are timely relate to Plaintiff's September 2014 resignation from her position with HVDDSO. (See CSEA Mem. in Supp. of Mot. to Dismiss (“CSEA Mem.”), at 8, ECF No. 60.)[5] Plaintiff contends that any claims falling outside of the 300-day period prior to the filing of her EEOC charge are appropriately asserted as part of a continuing violation in the form of a hostile work environment culminating in her constructive termination in September 2014. (See Pl. Opp'n. CSEA Mot. Dismiss (“Pl. Opp'n. to CSEA”), at 6-7, ECF No. 52.) CSEA does not argue that Plaintiff's claims of retaliation, based upon a failure to equally represent her and forced resignation or “constructive discharge” are untimely, though it does challenge these claims on other grounds, as discussed in the following section. (See CSEA Mem. at 9-12.)

         Title VII's statute of limitations bars claims based upon events that occurred more than 300 days prior to filing a charge of discrimination with a state or local employment agency. Garcia v. Yonkers Bd. of Educ., 188 F.Supp.3d 353, 358 (S.D.N.Y. 2016) (citing 42 U.S.C. § 2000e-5(e)(1) and Lange v. Town of Monroe, 213 F.Supp.2d 411, 418 (S.D.N.Y. 2002)). Thus, only events that occurred during the 300-day period prior to June 5, 2015, when Plaintiff filed her Complaint with the EEOC, are actionable under Title VII, unless the period has been equitably tolled or extended. Nowak v. EGW Home Care, Inc., 82 F.Supp.2d 101, 106-07 (W.D.N.Y. 2000) (citing Van Zant v. KLM Royal Dutch Airlines, Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712-13 (2d Cir. 1996)). Here, Plaintiff contends that the 300-day period has been extended under the “continuing violation” doctrine.

         Where the “continuing violation” exception applies, Title VII's 300-day limitations period can in fact extend. Id. (citing Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052 (1994); Cook v. Pan Am. World Airways, 771 F.2d 635, 646 (2d Cir. 1985), cert. denied, 474 U.S. 1109 (1986)). Under the continuing violation doctrine, where “a plaintiff has experienced a continuous practice and policy of discrimination, … the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.” Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (alteration in original) (quoting Fitzgerald v. Henderson, 251 F.3d 345, 349 (2d Cir. 2001)); Nowak, 82 F.Supp.2d at 106 (W.D.N.Y. 2000) (“Under this exception, … a timely EEOC charge concerning a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been time-barred.”). Notably, “[t]he courts of this Circuit have generally been loath to invoke the continuing violation doctrine and will apply it only upon a showing of compelling circumstances.” Little v. Nat'l Broad. Co., 210 F.Supp.2d 330, 366 (S.D.N.Y. 2002). Given this reserved approach, as the legal authorities in Plaintiff's own memorandum reveal, the continuing violation exception is generally reserved for cases where there was an ongoing discriminatory policy or practice. Id. at 907.

         Hostile work environment claims fall within the continuing violation framework. These claims “may ... be based on events outside the statute of limitations period as long as (1) the acts occurring before the ... cutoff constitute part of the same actionable hostile work environment practice, and (2) at least one act contributing to the claim occurs within the filing period.” Garcia v. Yonkers Bd. of Educ., 188 F.Supp.3d 353, 359 (S.D.N.Y. 2016) (internal quotation marks and citations omitted); see Langford v. Int'l Union of Operating Engineers, Local 30, 765 F.Supp.2d 486, 496 (S.D.N.Y. 2011) (“The Second Circuit has equated [hostile work environment] claims with the “continuing violation” doctrine.”); Little v. Nat'l Broad. Co., 210 F.Supp.2d at 367 (“A hostile work environment claim must meet the same requirements under the continuing violation doctrine”). Here, Plaintiff asserts that she filed her EEOC Charge within 300 days of the last discriminatory act - the “constructive termination” of her employment. (See Pl. Opp'n. to CSEA, at 6-7.) She contends that this forced resignation or termination was the last act in a continuous practice and policy of sexual discrimination against her that perpetuated a hostile work environment, and as such, the continuing violation doctrine should encompass the alleged sexually charged interactions initiated by Townsend that occurred outside of the 300-day statute of limitations. (Id.)

         It is well established that termination, whether through discharge or resignation, is a single act, discrete in nature. See Lightfoot, 110 F.3d at 907 (“Completed acts such as a termination through discharge or resignation, a job transfer, or discontinuance of a particular job assignment, are not acts of a ‘continuing' nature.”); Underwood v. Roswell Park Cancer Inst., 15-CV-684-FPG, 2017 WL 131740, at *10-11 (W.D.N.Y. Jan. 13, 2017), reconsideration denied, 2017 WL 1593445 (W.D.N.Y. May 2, 2017) (“to the extent the continuing violation doctrine is viable at all after Morgan, it cannot apply to discrete acts of discrimination … ‘[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.'”) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).

         Such discrete incidences cannot extend the statute of limitations and revive otherwise untimely acts. Brown v. N.Y.C. Dep't of Educ., 513 F. App'x 89, 91 (2d Cir. 2013) (“The letter notifying Brown of her termination cannot save her hostile work environment claim, because her termination was a separate and discrete act.”); Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004) (“[T]he mere fact that an employee was dismissed within the statutory period cannot be used to pull in[to the statutory period] a time-barred discriminatory act ...”) (alteration and internal quotation marks omitted); Fierro v. New York City Dep't of Educ., 994 F.Supp.2d 581, 587 (S.D.N.Y. 2014) (“Although [plaintiff] alleges that the [untimely] hostile work environment created by defendants led to her constructive discharge, that allegation is insufficient to resuscitate her time-barred claims”); see also Skates v. Inc. Vill. of Freeport, 15-CV-1136 (SJF) (AYS), 2016 WL 1459659, at *10 (E.D.N.Y. Jan. 28, 2016), report and recommendation adopted, 2016 WL 1452391 (E.D.N.Y. Apr. 12, 2016) (plaintiff's “termination constitutes an unquestionably discrete act ‘with its own filing deadline … As such, that act cannot be part of a preceding and continuing violation.'”) (internal citation omitted) (emphasis added); Fiero, 994 F.Supp.2d at 587 (citing Tucker v. MTA, et al., 11-CV-5781 (JPO), 2013 WL 55831, at *3 n.5 (S.D.N.Y. Jan. 4, 2013) (continuing violation doctrine applies “when there is a continuous chain of discriminatory acts, not when the injury from the discriminatory acts continues past the [end of the limitations period]”) (internal quotation marks omitted); Sareen v. Port Auth. of N.Y. & N.J., 2013 WL 6588435, at *7 (S.D.N.Y. 2013) (“law in this Circuit is clear that ... discrete acts of discrimination … do not implicate the continuing violation doctrine.”); Butler v. Coca-Cola Refreshments USA, Inc., 12- CV-1791, 2013 WL 3324995, at *3 (E.D.N.Y. July 1, 2013) (“[E]ven if plaintiff had not withdrawn the discriminatory termination claim, that claim could not serve as the foundation for plaintiff's continuing violation theory of a hostile work environment. An employee's termination is the paradigmatic “discrete act” that cannot be part of a hostile work environment claim.”). As such, because Plaintiff's resignation or forced retaliatory termination is a discrete act, it cannot be considered a continuation of the alleged sexual discrimination Plaintiff contends she experienced previously.

         Similarly, Plaintiff's allegation that CSEA failed to provide her with equal representation and file a petition on her behalf with regard to the Incident, in retaliation for her refusal to accept Townsend's sexual advances, are also a discrete acts. See Miner v. Town of Cheshire, 126 F.Supp.2d 184, 192-93 (D. Conn. 2000) (“That [plaintiff] has alleged several specific acts of retaliation within the limitations period is unavailing with respect to her claims of sexual harassment. A plaintiff cannot resurrect claims of discrimination that are outside the limitations period through subsequent acts of retaliation within the limitations period”); see also Bolick v. Alea Grp. Holdings, Ltd., 278 F.Supp.2d 278, 283 (D. Conn. 2003) (affirming dismissal of harassment claim as untimely and vacating dismissal of retaliation claim; “[i]t sometimes happens-more frequently than might be imagined-that an employee whose primary claim of discrimination cannot survive pre-trial dispositive motions is able to take to trial the secondary claim that he or she was fired or adversely affected in retaliation for asserting the primary claim”) (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 759 (2d Cir. 1998)).

         For these reasons, Plaintiff's discrimination claims stemming from conduct that occurred prior to the 300-day period, must be dismissed as alleged on the basis that they are time-barred.[6]

         b. Title VII Claim Against CSEA

         Defendant contends that Plaintiff has failed to state a cognizable claim under Title VII because she has not alleged facts sufficient to demonstrate that CSEA acted with any unlawful discriminatory or retaliatory motive. (See CSEA Mem. at 9.) Plaintiff contends that she was unlawfully forced to resign in retaliation for declining sexual advances made by her supervisor, Defendant Townsend, and that CSEA was aware of this conduct, but neglected to address it. (See Compl. ¶ 19; Pl. Opp'n. to CSEA at 13.)

         Title VII prohibits retaliation against employees for complaining of prohibited employment discrimination, “stating that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII].” Cifra v. GE, 252 F.3d 205, 216 (2d Cir. 2001) (citing 42 U.S.C. § 2000e-3(a)). To assert a prima facie case of retaliation, the plaintiff must plausibly allege: “(1) that she engaged in protected participation or opposition under Title VII;” (2) “that the employer was aware of this activity;” (3) “that the employer took adverse action against the plaintiff;” and (4) “that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.” Id; see also Nweke v. Prudential Ins. Co. of Am., 25 F.Supp.2d 203, 230 (S.D.N.Y. 1998) (“To make out a prima facie case of retaliation [against defendant labor unions, ] plaintiff must show that (1) she was engaged in an activity protected under Title VII … (2) the Unions were aware of [plaintiff]'s participation in the protected activity, (3) [plaintiff] suffered adverse union decisions, and (4) there was a causal connection between the her protected activity and the adverse action taken by the Unions”) (citing Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993)).

         Assuming Plaintiff can establish a prima facie case of discrimination, “a presumption of retaliation appears, and the employer must articulate some legitimate, nondiscriminatory reason for the employer's rejection.[7] Wagner v. Burnham, 03-CV-1522, 2006 WL 266551, at *15 (N.D.N.Y. Feb. 1, 2006). “If the employer can offer proof of a nondiscriminatory reason, the burden shifts to the plaintiff to “prove that the proffered reason was merely a pretext for retaliation that the employer's action was prompted by an impermissible motive.” Id.

         The Second Circuit Court has “clarified that, at the motion to dismiss stage, a plaintiff is not required to plead a prima facie case under McDonnell Douglas. Rather, a plaintiff “‘need only give plausible support to a minimal inference of discriminatory motivation.'” Boza-Meade v. Rochester Hous. Auth., 170 F.Supp.3d 535, 552 (W.D.N.Y. 2016) (citing Vega v. HempsteadUnion Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015)). Nonetheless, drawing all inferences in Plaintiff's favor as the Court must at this stage, Plaintiff plausibly alleges a prima facie case of retaliation. As to the first prong, Plaintiff asserts that she engaged in protected activity by declining Townsend's sexual advances. (See Pl. Opp'n. to CSEA at 13.) Courts are split on the question of whether rejecting unwanted sexual advances constitutes protected activity. See Little, 210 F.Supp.2d at 385-86 (noting district courts are split on issue of whether resisting an employer's sexual advances constitutes protected activity for purposes of establishing retaliation, collecting cases reflecting split, and finding that such a rejection does constitute protected activity on basis that “[t]he prohibition against retaliation is intended to protect employees who resist unlawful workplace ...

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