LOUIS M. DUPLAN v. THE CITY OF NEW YORK
Docket No. 17-1359-cv
United States Court of Appeals, Second Circuit
April 30, 2018
August Term, 2017
Argued: December 12, 2017
Before: LYNCH and LOHIER, Circuit Judges, and REISS, District Judge.*
Louis Duplan appeals from a judgment of the United States District Court for the Eastern District of New York (Roslynn R. Mauskopf, J.), dismissing his claims that his employer, the City of New York (“the City“), retaliated against him after he filed a discrimination complaint, in violation of
KATHY A. POLIAS, Brooklyn, NY, for Plaintiff-Appellant.
JONATHAN A. POPOLOW (Jane L. Gordon, Dona B. Morris, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee.
Louis Duplan appeals from a judgment of the United States District Court for the Eastern District of New York (Roslynn R. Mauskopf, J.), dismissing his claim that his employer, the City of New York (“the City“), retaliated against him after he filed a discrimination complaint, in violation of
With respect to his Title VII claims, we conclude that Duplan cannot avoid that statute‘s exhaustion requirement by asserting
BACKGROUND
I. Factual Background
Because a court that rules on a defendant‘s motion to dismiss a complaint “must accept as true all of the factual allegations contained in the complaint,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (internal quotation marks omitted), we describe the facts as alleged in the complaint, drawing all reasonable inferences in the plaintiff‘s favor, Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015), and construing any ambiguities “in the light most favorable to upholding the plaintiff‘s claim,” Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016).
Louis Duplan, a gay, black man from Haiti, was, at all relevant times, an employee of the City of New York in the Administration Unit of the Bureau of HIV/AIDS Prevention and Control, which is a subdivision of the City‘s Department of Health and Mental Hygiene (the “Department“). From 2005 through 2011, Duplan held the position of Director of Operations, in which role he had numerous managerial and supervisory responsibilities. In 2011, Duplan‘s direct supervisor was Randolph Rajpersaud, the Bureau‘s Director of Administration. In that role, Rajpersaud made derogatory comments about black people, gay people, and Haitians, and had on two occasions given preferential treatment to white women. In May 2011, Rajpersaud targeted Duplan personally by remоving several of his substantive and managerial responsibilities.
After Rajpersaud was promoted to Assistant Commissioner of the Department, in June 2011, Duplan applied for a promotion to the vacated post of Director of Administration. Rajpersaud served on the hiring committee for his replacement. Duplan was not selected for the job; instead, in July, the committee chose a white, straight, American-born woman whom Duplan alleges was less qualified for the position. That selection, coupled with Rajpersaud‘s participation in the process, led Duplan to believe that he had been denied the position on the basis of his race, national origin, and sexual orientation.
In July and August 2011, Duplan filed complaints with the City, the EEOC, and the New York State Division of Human Rights (“NYSDHR“), asserting that he had been denied the promotion for discriminatory reasons and, in retaliation for complaining about that discrimination, had then been effectively demoted through the diminution of his substantive responsibilities. For the remainder of that year, Rajpersaud and other unspecified City officials engaged in a retaliatory campaign against Duplan. Under the pretext of a “reorganization,” Duplan was deliberately deprived of additional responsibilities as well as all of his remaining subordinates. His sole remaining responsibility involved time management tasks, which he voluntarily
Between 2011 and 2014, Duplan alleges, each of his successive supervisors continued to ostracize and ignore him. Duplan also applied for several more managerial positions for which he was qualified, but he was not interviewed or seriously considered. In September 2014, Duplan emailed several supervisory employees in the Department to complain about the retaliation he believed he had experienced following his 2011 complaint, and on October 23, 2014, he filed a complaint regarding that alleged retаliation with the EEOC and the NYSDHR.
In his complaint, Duplan charged that, in the 300 days prior to filing his second EEOC complaint,1 the following discrete acts of retaliation occurred: First, at some point in 2014, John Rojas, his then-supervisor, denied him a merit raise that was given to the majority of his coworkers. Second, Duplan was suspended for ten business days without pay in September and October 2014 after another employee made an allegedly false sexual harassment claim against him, even though the complainant had sought only an informal conference to resolve the issue. Third, in September 2014, the City created a position that included all of the responsibilities Duplan had held before he began making complaints in 2011 (and whiсh had subsequently been taken from him, allegedly in retaliation for those complaints), but did not hire him for that role. When Duplan asked Rojas why his responsibilities had not simply been restored, Rojas responded that the matter was “out of his control,” despite the fact that Rojas was directly involved in hiring for the new position. App. at 13, ¶ 18(a). That response discouraged Duplan from applying for the position. Fourth, Duplan‘s application for the Director of Administration position was denied again in September 2014.
Duplan alleges that he was subjected to two additional instances of retaliation as a result of his 2014 complaint. First, in November 2014 and January 2015, Duplan was assigned additional duties that were “well below” his civil service and functional titles, including removing boxes, fulfilling maintenance requests, acting as Fire Warden, and assigning seats to new employees. App. at 17. Second, in September 2015, Duplan lost access to the time management system, thus depriving him of the sole task remaining from his pre-2011 responsibilities and leaving him with only work that is “well below [his] civil service title as well as his functional title.” App. at 17.
II. Procedural History
Duplan received a right-to-sue letter in June 2015, and on July 10, 2015, he brought this action, asserting claims for discrimination, retaliation, and hostile work environment under
First, the court held that Duplan‘s
Second, the court concluded that Duplan was time-barred from alleging retaliation based on conduct that occurred prior to December 27, 2013 (300 days before the 2014 EEOC complaint). The court held that the 2014 EEOC charge was untimely as to any conduct occurring before that date. It also rejected Duplan‘s contention that those claims could be deemed exhausted by his 2011 EEOC filing, because Duplan had failed to file suit within 90 days after receiving a right-to-sue letter based on the earlier complaint.
Third, evaluating the remaining allegations, the court held that Duplan had failed to demonstrate a sufficient causal connection between the conduct included in the 300-day look-back period prior to the 2014 EEOC complaint and any retaliatory animus arising from the 2011 complaint.
Fourth, the court held that Duplan had not adequately alleged retaliation following his 2014 complaint because the conduct about which he complained did not amount to an adverse employment action. And finally, it ruled that Duplan had not adequately alleged a hostile work environment claim because the course of conduct alleged was not sufficiently severe or pervasive.
Duplan timely appealed, challenging each of those holdings.
DISCUSSION
A district court‘s grant of a motion to dismiss is reviewed de novo. Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir. 2010).
I. Section 1981 Claims
Duplan seeks to assert claims against the City under
Duplan‘s argument hinges on a new reference to state actors added to
In Federation of African American Contractors v. City of Oakland, 96 F.3d 1204, 1213 (9th Cir. 1996), the Ninth Circuit concluded that, because the amended language of
Every subsequent Circuit to consider the issue, however, has declined to follow Federation‘s reasoning.2 As explained by Judge Arterton in her thorough and well-reasoned discussion of this case law in Smith v. Metropolitan District Commission, 105 F. Supp. 3d 185 (D. Conn. 2015), those courts have coalesced around three cogent points. First, there is no indicatiоn in the legislative history that Congress intended the 1991 amendments to overrule Jett. To the contrary, the legislative history expressly invokes and either codifies or overrules other Supreme Court cases, but makes no reference to Jett, a high-profile opinion issued less than two years before the amendments were enacted.3 Second, there is a difference between providing identical rights and providing identical remedies.4 Because
We find that reasoning persuasive, and therefore join nine of our sister Circuits in concluding that
II. Title VII Claims
Duplan asserts Title VII claims on the basis of the discrete instances of retaliation he suffered for filing his 2011 and 2014 EEOC complaints, and further asserts that he was subjected to a generally hostile work environment in retaliation for making those complaints. We discuss each of those claims in turn.
A. Retaliation Following the 2011 Complaint
In order to evaluate whether Duplan has alleged viable claims for retaliation following his 2011 complaint, we must first determine whether he has timely alleged and properly exhausted those claims. Concluding that we may address only those instances of retaliation included in his 2014 EEOC complaint, we then consider whether those allegations are sufficient to make out a prima facie case of retaliation at the pleading stage.
1. Exhaustion and Timeliness
Before an aggrieved party can assert a Title VII claim in federal court, he is generally required to exhaust the administrative remedies provided by the statute. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015). That is, a Title VII plaintiff generally must file a charge of discrimination with the EEOC “within three hundred days after the alleged unlawful employment practice occurred,”
Duplan argues, however, that his 2011 EEOC charge should be deemed to have exhausted any subsequent claims of retaliation for filing that charge. We have, indeed, long recognized that in certain circumstances it may be unfair, inefficient, or contrary to the purposes of thе statute to require a party to separately re-exhaust new violations that are “reasonably related” to the initial claim. Butts v. N.Y.C. Dep‘t of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1072. Relevant to the present case, if a plaintiff has already filed an EEOC charge, we have been willing to assume that the exhaustion requirement is also met for a subsequent claim “alleging retaliation by an employer against an employee for filing an EEOC charge.” Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003). Duplan seizes on that language to argue that he was not required to exhaust any claims of retaliation for filing his 2011 EEOC complaint (notwithstanding the fact that he actually did attempt to do so in his 2014 EEOC complaint). But because the conduct about which Duplan comрlains occurred after the conclusion of the agency‘s investigation and because Duplan did not file suit within 90 days of receiving a right-to-sue letter on his 2011 complaint, accepting Duplan‘s argument would be a significant and unwieldy extension of our existing precedent, and one we now reject.
In the paradigmatic case for which the “reasonably related” doctrine was adopted, retaliation occurs while the EEOC charge is still pending before the agency. It is well established that the plaintiff may then sue in federal court on both the adverse actions that gave the impetus for the initial EEOC charge and the retaliation that occurred thereafter, even though no separate or amended EEOC charge encompassing the subsequent retaliation was ever filed. See Owens v. N.Y.C. Hous. Auth., 934 F.2d 405, 410–11 (2d Cir. 1991). That result stems from several considerations. Most straightforwardly, the ongoing EEOC investigation on the first charge would be expected to uncover and address any related retaliation. See Butts, 990 F.2d at 1402. Forcing the parties into two concurrent agency proceedings is also unlikely to produce “the princip[al] benefits of EEOC involvement, [namely,] mediation of claims and conciliation.” Id. Moreover, “requiring a plaintiff to file a second EEOC charge under these circumstances could have the perverse result of promoting employer retaliation
But we have also applied the “reasonably related” doctrine to retaliation that occurs after the EEOC investigation is complete, even though the rationale that the retaliation likely was or should have been encompassed by the EEOC investigation is not available in such cases. For instance, in Malarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2d Cir. 1993), we observed that so long as the retaliation at issue occurred after the filing of the initial EEOC complaint, there was “no reason why a retaliation claim must arise before administrative proceedings terminate in order to be reasonably related” to the initial claim for exhaustion purposes. Id. at 1209. In Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 684–85 (2d Cir. 2001), a more extreme case, the “reasonably related” act of retaliation occurred three years after the plaintiff‘s initial right-to-sue letter issued. See id. at 684–85; see also Shah v. N.Y. Dep‘t of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999) (applying “reasonably related” doctrine to retaliatory acts occurring one and four years after initial agency complaint).
Duplan attempts to analogize his situation to the facts of Legnani. There is, however, a crucial distinction between that case and the present facts: in Legnani, the “related” retaliation occurred while a timely federal lawsuit based on the underlying discrimination charge was still pending. See 274 F.3d at 685. Thus, the ongoing federal case stood in the same position as administrative proceedings for the purpose of efficiency and other policy arguments outlined above. In other words, Legnani had acted in a timely manner to bring her properly exhausted claims to court, and the district court in that case erred by failing to recognize that the efficiency of resolving all of the plaintiff‘s related claims in the single, already-pending lawsuit justified a departure from rigid adherence to the statutory exhaustion requirement.8
Duplan, however, has long since abandoned his initial claim of discrimination, because he failed to timely bring a lawsuit on that claim after receiving a right-to-sue letter in 2012. In such a case, the underlying discrimination claims that were the basis of the original EEOC charge are time-barred. No administrative or judicial proceeding is still pending, and the employee who suffers further discrimination or retaliation, like any other employee with a potential Title VII claims, therefore remains subject to that statute‘s administrative exhaustion requirement. There is no reason to expand the judicially created waiver of the statutory exhaustion requirement to permit
unexhausted retaliation claims to be held open indefinitely into the future, or litigated without going through a new administrative process, simply because, if the plaintiff had timely filed suit, policy considerations would have weighed in favor of waiving the exhaustion requirement so that the retaliation claim could have been joined with that hypothetical lawsuit.
Notably, moreover,
To avoid creating a liability unbounded by any temporal limitation, Duplan proposes that we treаt “reasonably related” retaliation claims like other federal causes of action for which there is no specified statute of limitations. He suggests that we borrow an analogous state statute of limitations for such claims, which, in the present case, would yield a three-year window. We see no reason to strain so hard to find a palatable way to suspend
In sum, retaliation claims arising during or after an EEOC investigation are deemed exhausted when a plaintiff seeks to join them to a timely filed lawsuit on his original, exhausted claims, because it would be burdensome and wasteful to require a plaintiff to file a new EEOC charge instead of simply permitting him to assert that related claim in ongoing proceedings to adjudicate the underlying charge. But there is no compelling reason—efficiency-related or otherwise—to grant a similar exception to a plaintiff like Duplan, who deliberately abandoned his underlying claim of discrimination by failing to file a timely suit on those claims. Accordingly, we reject Duplan‘s argument that we
2. Merits of the Exhausted 2011 Retaliation Claims
Retaliation claims under
To adequately plead causation, “the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer‘s adverse action. . . . ‘But-for’ causation does not, however, require proof that retaliation was the only cause of the employer‘s aсtion, but only that the adverse action would not have occurred in the absence of the retaliatory motive.” Vega, 801 F.3d at 90–91 (internal quotation marks, alterations, and citations omitted). Causation may be shown by direct evidence of retaliatory animus or inferred through temporal proximity to the protected activity. Id.
Relying on Grant v. Bethlehem Steel Corporation, 622 F.2d 43 (2d Cir. 1980), Duplan contends that the more than two-year delay between his first EEOC charge and these alleged adverse employment actions does not break the chain of causation because the City retaliated against him at the “first available opportunity” to do so in that particular manner. Appellant‘s Br. at 26. Even assuming that Grant establishes the principle that causation can be shown on that theory, however, it would be difficult to apply it to the facts that Duplan has alleged. In part, that problem is caused by the lengthy gap in time between his initial protected act and the ensuing instances of retaliation that were properly exhausted by his 2014 complaint. For instance, Duplan does not specify whether he was eligible for or received other raises between his 2011 complaints and the 2013 raise he
Moreover, the bulk of the casеs on which Duplan relies involved events that occurred only at specific, regularly scheduled or anticipated times that would present a particular opportunity for retaliatory conduct, such as annual performance reviews, tenure evaluations, or a deliberate decision not to rehire a plaintiff at the same time that other similarly situated workers were brought back on board.11 Duplan, by contrast, contends that the City was lying in wait for opportunities to retaliate against him that may or may not have ever occurred. His “first available opportunity” theory would require us to find it plausible that the City‘s plan to retaliate against him included, among other things, biding its time for three years until a flimsy sexual harassment complaint finally gave it an excuse to suspend him.
But an inference of causation is more easily drawn when one considers the facts as a whole. We recognized in Grant that “proof of causal connection can be established indirectly by showing that protected activity is followed by discriminatory treatment.” 622 F.2d at 46; see also Curcio v. Roosevelt Union Free Sch. Dist., No. 10-CV-5612 SJF AKT, 2012 WL 3646935, at *14 (E.D.N.Y. Aug. 22, 2012) (observing that a “pattern of antagonism” over the intervening period may be sufficient to demonstrate the requisite causal connection); Hous. Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 426 (S.D.N.Y. 1999) (same). Duplan alleges that each of the adverse actions alleged above occurred against a backdrop of continuing antagonism and frustration of his professional ambitions. Following his 2011 complaints, his supervisors сollectively and persistently discouraged him from remaining at the Department by ostracizing him, giving him insufficient work, and making clear to him that his career would not advance further by denying him every promotion and raise. Those allegations establish a drumbeat of retaliatory animus from which a plausible inference of causation can be drawn. Because the burden for establishing a prima facie case of retaliation is “de minimis,” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010), we conclude that Duplan‘s allegations are sufficient to survive at this stage. The district court, of course, remains free to re-assess the viability of these claims after discovery on a motion for summary judgment.
B. Retaliation Following the 2014 Complaints
Duplan also alleges that he suffered retaliation after making his 2014 complaints. Those allegations are deemed exhausted by the оperation of the “reasonably related” rule. The City contends that those claims should nevertheless fail because Duplan failed to adequately allege that he suffered an adverse employment action following his 2014 complaints. We disagree.
An adverse employment action in a retaliation case includes conduct that is “harmful to the point that it could well
Duplan‘s allegations that he suffered an adverse employment action in retaliation for filing his 2014 EEOC complaint are sufficient to avoid dismissal of his 2014 retaliation claim at the pleading stage.
C. Hostile Work Environment Claim
Finally, Duplan contends that he was subjected to a hostile work environment in retaliation for his 2011 and 2014 complaints. “In order to establish a hostile work environment claim under
CONCLUSION
We have considered Duplan‘s remaining arguments and conclude that they are without merit. For the foregoing reasons, we VACATE those portions of the district court‘s judgment that dismiss Duplan‘s
Notes
Id. at 307.Discrimination claims under Title VII and the ADEA must ordinarily be “filed” with the EEOC within 180 days of the date on which the “alleged unlawful employment practice occurred.”
42 USC § 2000e–5(e)(1) ; see29 USC § 626(d)(1) . However, if the alleged discrimination took place in a state or locality that has its own antidiscrimination laws and an agency to enforce those laws, then the time period for “fil[ing]” claims with the EEOC is extended to 300 days.42 U.S.C. § 2000e-5(e)(1) ;29 U.S.C. §§ 626(d)(2) ,633(b) . In this case, the discrimination alleged by [the plaintiff] took place in New York, which has both antidiscrimination laws аnd an antidiscrimination agency. The 300-day limit therefore applies.