United States District Court, S.D. New York
OPINION AND ORDER
ABRAMS, UNITED STATES DISTRICT JUDGE.
Salas brings this action against her employer, the New York
City Department of Investigation ("DOI"), and five
individuals at DOI, asserting various
employment-discrimination claims under Title VII of the Civil
Rights Act of 1964 and the Americans with Disabilities Act of
1990. Salas was proceeding pro se when she filed her
Complaint (Dkt. 2) and her Amended Complaint (Dkt. 18),
but pro bono counsel later entered an appearance on
her behalf. Defendants now move to dismiss Plaintiffs Amended
Complaint. For the reasons explained below, that motion is
denied in part and granted in part.
following facts are drawn from the Amended Complaint, the
original Complaint, and the documents attached to the
original Complaint. All non-conclusory facts are assumed to be
true for the purposes of resolving Defendants' motion to
dismiss. See Stadnick v. Vivint Solar, Inc., 861
F.3d 31, 35 (2d Cir. 2017).
is Jewish and has a pronounced stutter. In 2008, she began
working in a clerical role for the Fingerprint Division (the
"Division") of DOI. In that role, she regularly
observes "members of the Hasidic sect of the Jewish
religion" come in for fingerprinting. Am. Compl. ¶
5. Men who are Hasidic have a religious objection to being
touched by women and, thus, an objection to being
fingerprinted by them. Id. In 2013, Salas wrote a
letter to the Director of the Division, Danielle Desrouleaux,
about the "contemptuous and rude behavior" of two
of her coworkers, Maria Calvi and Judith Marrero, who Salas
said had been "displaying] obvious disrespect toward
[the] visiting Hasidic Jews." Dkt. 2 at 16.
"primary incident" that Salas complains of took
place in September 2015. Am. Compl. ¶ 8. According to
Salas, Maria Calvi approached "a Hasidic man who came to
the Division for fingerprinting" and "suddenly
grabbed" the man's hand, proceeding to
"forcibly" take his fingerprints over his screamed
objections. Id. Salas "heard the
commotion" in the fingerprinting area that adjoins her
work space. Dkt. 2 at 15. She attempted to interfere,
"beseech[ing] her Division colleague to let go of the
man's hand, " but Calvi "sneered at her, made
vulgar remarks, and carried on" with the fingerprinting.
Am. Compl. ¶ 9. Calvi allegedly "stuck her
nose" in Salas's face and told Salas that it was
"none of [Salas's] business" and that Salas
could "report [her] to the Director!" Dkt. 2 at 15,
26. Salas went to management to report the September
incident. After Salas reported it, Calvi confronted her,
shouting in a "menacing manner" to "[g]et off
[her] face." Id. at 26. Salas alleges that her
reports about the treatment of the Hasidic man were "met
with ridicule and indifference" and that "nothing
was done" despite multiple follow-ups. Am. Compl. ¶
10. According to Salas, the incident with the Hasidic man
"was merely one of many which occurred at the Division
over time, " and "a hostile work environment and
religious discrimination has existed and been pervasive at
the Division both before and after this incident." Am.
November 2015, Salas's supervisor wrote a formal warning
to Salas about the September 2015 incident. In the warning,
the supervisor criticized Salas for "[b]erating"
Calvi and "tak[ing] matters into [her] own hands"
rather than simply notifying her supervisor. Dkt. 2 at 47. In
the Amended Complaint, Salas refers to the warning as a
"derogatory note, " which she alleges was placed in
her file as a result of her complaints about the September
incident. See Id. at 51; Am. Compl. ¶ 12. A few
weeks later, on December 14, Salas complained to DOFs
Assistant Commissioner for Administration, Edgardo Rivera,
that Calvi at some point had "humiliated and
embarrassed" Salas "by mimicking [her] murmuring
disability in front of co-workers." Dkt. 2 at 24. In
that same complaint to Rivera, Salas asserted that she had
been "victimized" for reporting the incident with
the Hasidic man. Id. at 24. On February 1, 2016,
Salas was notified that she would not receive a raise.
Id. at 14.
April 2016, Salas filed a formal charge of discrimination
with the EEOC, identifying retaliation, religion, and
disability as the grounds for the charge. She provided the
following description of the discriminatory conduct that she
claimed to have experienced:
Maria Calvi improperly handled an Orthodox Jewish male. (She
physically abused him and spoke to him in a harsh manner. She
did not address any other patrons harshly), I reported the
mistreatment to my supervisor and I received a command
discipline. I filed an internal EEO complaint regarding the
mistreatment of the Jewish male ... but it was never
Ms. Calvi makes fun of my stuttering and she intimidates me
on a daily basis. I have reported the harassment to
management and nothing was done to stop the harassment. In
retaliation for filing my internal discrimination complaints
I have not received a raise as all of the other employees in
Id. at 28-29. Allegedly as a result of this charge,
DOI gave Salas a raise in June 2016. Id. at 21. Even
after Salas received the raise, however, she corresponded
several times with the EEOC. On August 5, 2016, she sent the
EEOC a letter that, among other things, noted how
"Calvi. . . mimic[s her] on a daily basis."
Id. at 13.
further asserts that, after the September 2015 incident and
her complaints about it, "she has repeatedly been
mocked, ridiculed, and made fun of at the Division. Am.
Compl. ¶ 12. She alleges that someone removed some of
her files, that the "derogatory note" (apparently
the written warning described above) "was put into her
personnel file, " that "she has suffered abuse,
" and that "her religion has repeatedly been
mocked." Id. She concludes that she "has
suffered discrimination and abuse at the Division on account
of her stuttering disability and her religion" and that
she has "suffered damages as a result."
Id. ¶ 14.
November 2, 2016, Salas, proceeding pro se, filed
the Complaint in this action, asserting claims of employment
discrimination under the ADA and Title VII. Shortly after
Salas filed her Amended Complaint, pro bono counsel
entered an appearance on her behalf. Defendants now move to
dismiss the Amended Complaint under Federal Rule of Civil
Procedure 12(b)(6). See Dkt. 26. Salas, through
counsel, filed her opposition, and Defendants replied.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Ail.
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." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "Where a complaint pleads facts that are
'merely consistent with' a defendant's liability,
it 'stops short of the line between possibility and
plausibility of entitlement to relief."'
Id. (quoting Twombly, 550 U.S. at 557). On
a Rule 12(b)(6) motion, the question is "not whether
[the plaintiff] will ultimately prevail, " but rather
"whether his complaint [is] sufficient to cross the
federal court's threshold." Skinner v.
Switzer, 562 U.S. 521, 529-30 (2011) (internal quotation
marks omitted). In answering this question, the Court must
"accept all factual allegations as true, but giv[e] no
effect to legal conclusions couched as factual
allegations." Stadnick, 861 F.3d at 35 (quoting
Starr v. Sony BMG Music Entm't, 592 F.3d 314,
321 (2d Cir. 2010)). This Court must construe a pro
se plaintiffs pleadings liberally. Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
But even pro se litigants must still "state a
claim to relief that is plausible on its face."
Mancuso v. Hynes, 379 Fed.App'x 60, 61 (2d Cir.
2010) (citations omitted).
Title VII and ADA Claims Against the Individual
initial matter, Defendants argue that Salas's claims
against the individual defendants under Title VII and the ADA
must be dismissed. As Defendants correctly point out,
individuals cannot be liable under either Title VII or the
ADA. See Spiegel v. Schulmann,604 F.3d 72, 79 (2d
Cir. 2010); Wrighten v. Glowski,232 F.3d 119, 120
(2d Cir. 2000) (per curiam). Thus, ...