MEMORANDUM AND ORDER
Stephen Pothen (“Pothen” or “plaintiff’), proceeding pro se and informa pau-peris, filed this action against the State University of New York at Stony Brook (“Stony Brook” or “defendant”) on November 7, 2013, alleging that Stony Brook violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) by discriminating and retaliating against him based upon his race, national origin, color, and religion. The Court, in an order dated March 21, 2014 (the “March 21, 2014 Order”), dismissed plaintiffs complaint for failure to state a cause of action and gave plaintiff an opportunity to amend.
Defendant moves to dismiss the second amended complaint pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that (1) plaintiff fails to state a Title VII discrimination claim; (2) plaintiff fails to state a claim for retaliation under Title VII; (3) plaintiff fails to state a claim for hostile work environment; and (4) plaintiff failed to properly serve the second amended complaint and did not comply with the Court’s orders such that dismissal under Federal Rule of Civil Procedure 41(b) is warranted.
As discussed below, defendant’s motion to dismiss is granted in part and denied in part.
I.Background
A. Factual Background
The following facts are taken from the second amended complaint filed on April 28,. 2015 (“SAC”)
Beginning in 2005, plaintiff worked as a maintenance engineer at Stony Brook, (SAC at 1.) Plaintiff alleges that his supervisors discriminated and retaliated against him because of his Indian national origin and his religion, and created a hostile work environment by engaging in a conspiracy to destroy his career and by failing to provide a safe working environment in violation of Stony Brook’s code of conduct. (Id. at 1-3.) Plaintiff alleges that he was given “bad” reports, denied overtime, denied a promotion, given undesirable work assignments, denied an assistant for work assignments where one was customary, yelled at and called names by his supervisors, and terminated from his position. (Id. at 2-9.)
Plaintiff alleges that he and his co-worker, also of Indian descent, were given “bad reports” by a supervisor, Frank Nappie (“Nappie”), who “hated Indians.” (Id. at 1-2.) Plaintiff claims that, under a prior supervisor, his service record was good. (Id. at 8.) Plaintiff states that he is Christian and has Jewish grandparents. (Id. at 3.) He alleges that he was denied a promotion to the position of “Engineer 2” and that management provided him with “no utility assistant (except on [S]aturdays and [Sundays during the last year of my service) as
Plaintiff also alleges the following specific incidents were the result of discrimination and contributed to a hostile work environment:
With respect to his claim of retaliation, plaintiff alleges that he filed numerous complaints with various departments at Stony Brook, and filed complaints with the Human Rights Commission (“HRC”) and the Equal Employment Opportunity Commission (“EEOC”), including a “workplace violence complaint” on September 27, 2013. (Id. at 1.) Plaintiff alleges that he was retaliated against by supervisors who mistreated him, including by trying to poison him, manhandling and threatening him, giving him unfavorable work assignments without an assistant, and denying him a promotion. (Id. at 13.)
B. Procedural History
Plaintiff filed the initial complaint on November 7, 2013. By order dated November 20, 2013, the Court stated that it would dismiss the action without prejudice if service of the summons and complaint were not made on Stony Brook by March 7, 2014, or if plaintiff failed to show good cause as to why such service had not been effected. Plaintiff submitted an affirmation of service dated January 6, 2014 stating that he served the summons and complaint by mailing copies to the “Director” of Stony Brook, the Attorney General of the. United States, and the United States Attorney for the Eastern District of New York. On February 7, 2014, Stony Brook filed its first motion to dismiss based upon failure to state a claim, which the Court granted on March 21, 2014. Plaintiff was given leave to amend, which plaintiff attempted to do by letter and which Stony Brook opposed. By Order dated May 28, 2014, the Court gave plaintiff one final opportunity to amend his complaint. Plaintiff filed an amended complaint on June 26, 2014 and, on October 20, 2014, Stony
II. Standard of Review
In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations set forth in the complaints as true and draw all reasonable inferences in favor of the non-moving party. See Cleveland v. Caplaw Enters.,
The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss.
Where, as here, the plaintiff is proceeding pro se, “[cjourts are obligated to construe the [plaintiffs] pleadings ... liberally.” McCluskey v. New York State Unified Court Sys., No. 10-CV-2144 (JFB)(ETB),
III. Discussion
A. Dismissal Under Federal Rule of Civil Procedure 41(b)
Defendant argues that plaintiffs failure to properly serve the SAC in violation of the Court’s orders warrants dismissal under Rule 41(b) of the Federal Rules of Civil Procedure. Defendant asserts that plaintiff has been deficient in properly effecting service of process on defendant by initially providing defendant with a version of the SAC that did not contain exhibits or the disc provided to the Court and, following the Court’s August 10, 2015 Order, providing defendant with an SAC containing content that differs from the SAC filed with the Court. Defendant argues that plaintiff still has not properly effected service in violation of the Court’s August 31, 2015 Order directing plaintiff to serve the Attorney General with a full and complete copy of the actual document filed with the Court, and that violation of this Order and plaintiffs failure to properly serve defendant, warrants dismissal.
A court may, in its discretion, dismiss a case under Rule 41(b) “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order... Fed. R. Civ. P. 41(b). In analyzing whether to dismiss a plaintiffs case pursuant to Rule 41(b), a district court must consider five factors, including: “(1) the duration of the plaintiffs failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court’s interest in managing its docket with the plaintiffs interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.” Baptiste v. Sommers,
The Court cannot conclude that these factors support dismissal. Plaintiff was made aware of deficient service and directed by the Court on several occasions to serve defendant with full and complete copies of the SAC including all of the documents that had been previously filed with the Court. Although plaintiff apparently has failed to fully comply with that
B. Title VII Discrimination
Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). “To establish a prima facie case of employment discrimination under Title VII, a plaintiff must show that ‘(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination.’ ” Chang v. N.Y.C. Dep’t for the Aging, No. 11-CV-7062 (PAC)(JLC),
At the pleading stage, a Title VII plaintiff need not allege specific facts establishing each element of a prima facie case of discrimination. Vega v. Hempstead Union Free Sch. Dist.,
Defendant argues that plaintiffs discrimination claims should be dismissed because most of the alleged actions do not constitute “adverse employment actions” under Title VII and the SAC does not include sufficient factual allegations to support a conclusion that any adverse employment action occurred under circumstances
1. Adverse Employment Actions
Defendant concedes that some of the alleged actions referred to in the SAC may constitute adverse employment actions under Title VII, including plaintiffs termination, his failure to receive a promotion, and the denial of overtime, but argues that plaintiffs complaints regarding “bad reports,” undesirable work assignments, and altercations with plaintiffs supervisors are workplace grievances that do not constitute adverse employment actions. (Defs. Mot. at 9-10.)
To constitute an adverse employment action in the context of a discrimination claim, an action must cause “a materially adverse change in the terms and conditions of employment.” Henry v. NYC Health & Hosp. Corp.,
Plaintiffs allegations regarding “bad reports” and various altercations with supervisors could qualify as adverse employment actions depending on the circumstances. Thus, this fact-specific determination cannot be resolved on a motion to dismiss in this case. Although plaintiff does not specifically allege material negative consequences in the terms of his employment as a result of either his negative reviews or the altercations, the Court believes that, based on the totality of the allegations contained in the SAC, the absence of that particular aspect of his allegations does not warrant dismissal, particularly in light of plaintiffs pro se status.
Similarly, with respect to plaintiffs allegations regarding work assignments, the Court finds that plaintiff has plausibly alleged an adverse employment action. Defendant categorizes plaintiffs allegations as complaints related to unfavorable work assignments. Indeed, “where assignments fall within the duties of a plaintiffs position, receiving unfavorable schedules or work assignments does not, without more, rise to the level of an adverse employment action.” Williams v. Ford Motor Co., No. 12-CV-0411,
2. Inference of Discrimination
Defendant also argues that plaintiffs claim fails because the SAC does not include sufficient factual allegations to support the conclusion that the adverse employment actions occurred under circumstances giving rise to an inference of discrimination. The Court agrees with respect to plaintiffs discharge claim, but finds that plaintiff has stated a plausible inference of discrimination with respect to claims regarding denial of a promotion, denial of overtime, and the receipt of a disproportionately heavy workload.
In general, “[a]n inference of discrimination can arise from circumstances including, but not limited to, the employer’s criticism of the plaintiffs performance in ethnically degrading terms; or its invidious comments about others in the plaintiffs protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiffs discharge.” Littlejohn,
With respect to plaintiffs claims that he was denied a promotion, denied overtime, and given a disproportionately heavy workload, the Court finds that plaintiff has stated a plausible inference of discrimination. Plaintiff does not specifically identify the national origin or religion of the engineer who plaintiff alleges received a promotion instead of him or of the other comparators he alleges received overtime and disproportionately lighter workloads. However, plaintiff does identify the engineer promoted by name and he claims that comparators were engineers who were accountable to the same supervisors. Plaintiff alleges that he and these engineers were similarly situated, but were subjected to disparate treatment because of plaintiff’s national origin and religion. Drawing all reasonable inferences in plaintiffs favor, this is sufficient to state a plausible in
However, the Court agrees with defendant that no inference of discrimination under Title VII arises with respect to plaintiffs discharge. Plaintiff simply alleges that he was terminated for lack of mental fitness after being on “sick leave with half pay for two years because of mental depression.” (SAC at 4.) Although plaintiff alleges that the discrimination he experienced while employed at Stony Brook made him “mentally sick” (id.), he does not allege any facts that give rise to an inference that his termination was the result of discrimination based on plaintiffs national origin or religion. Thus, there are insufficient allegations to support a plausible claim of discrimination in connection with plaintiffs termination.
Accordingly, defendant’s motion to dismiss is denied with respect to plaintiffs Title VII discrimination claims for denial of a promotion, denial of overtime, the receipt of a disproportionately heavy workload, unfavorable reviews, and workplace grievances related to altercations with supervisors, but granted with respect to plaintiffs termination claim.
C. Title VII Retaliation
“Title VII forbids an employer to retaliate against an employee for, inter alia, complaining of employment discrimination prohibited by Title VII.” Kessler v. Westchester County Dep’t of Soc. Servs.,
Plaintiff asserts that the incidents described in the SAC are “retaliation against [his] human rights complaint.” (SAC at 8.) Defendant argues that plaintiff does not state a retaliation claim with respect to this complaint. In particular, defendant notes that plaintiff filed his complaint with DHR on December 7, 2012, and the incidents occurring before December 7, 2012 cannot give rise to an inference of retaliatory animus. See Pinero v. Long Island State Veterans Home,
However, the analysis is more complex than suggested by defendant. In particular, although the DHR complaint was filed in December 2012, plaintiff was claiming “discrimination” in emails in the months leading up to the formal complaint. Defendant does not substantively address the numerous other complaints plaintiff alleges he filed with Stony Brook other than to argue (i) that the SAC is “devoid of any specific dates on which these were filed” and (ii) that the one complaint that is dated is irrelevant because it was a “workplace violence complaint” filed with Stony Brook’s Labor Relations department on
In short, plaintiff alleges a series of adverse actions following his alleged informal and formal complaints of discrimination. Although there were alleged adverse actions that pre-dated such complaints (and are, therefore, not a proper basis for a retaliation claim), plaintiff has a plausible claim that the alleged adverse actions occurring after his purported protected activity were retaliatory. Accordingly, defendant’s motion to dismiss plaintiffs retaliation claim is denied.
D. Hostile Work Environment
Plaintiff also makes allegations related to “workplace violences,” which the Court liberally construes to assert a Title VII hostile work environment claim. (SAC at 2, 7, 8.) As set forth below, defendant’s motion to dismiss this claim is denied.
Defendant argues that, as a threshold matter, plaintiff does not indicate whether such a claim has been administratively exhausted and, therefore, defendant’s claim must be dismissed. However, even assuming arguendo that plaintiff did not exhaust this particular claim, it appears from the face of the SAC that the allegations in this claim may be “reasonably related” to his claims of discrimination. Under such circumstances, plaintiff would not be precluded from asserting this claim. See Butts v. City of New York Dep’t Hous. Pres. & Dev.,
Defendant also argues that the claim should be dismissed because there are no allegations that link the harassment to, inter alia, plaintiffs national origin. As set
In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment and (2) that there is a specific basis for imputing the conduct creating the hostile. work environment to the employer. Summa v. Hofstra Univ.,
Plaintiff refers to a number of altercations in which supervisors yelled at him, “hammered on the table also along with yelling,” and called him stupid. (SAC at 5-8.) Plaintiff also states that superiors, managers, colleagues, and assistants made life miserable for him, ridiculed him, overloaded him with work, and caused him psychological trauma. (Id. at 8.) If proven, this conduct could plausibly be sufficiently pervasive or severe to constitute a hostile work environment.
Moreover, although these alleged instances are not specifically linked to plaintiffs status in a protected class (such as with specific alleged comments), it is well-settled that “[fjacially neutral incidents may be included, of course, among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim.” Alfano v. Costello,
IV. Conclusion
For the foregoing reasons, defendant’s motion to dismiss is granted with respect to plaintiffs claim for Title VII discrimination as it relates to his termination, but denied with respect to the Title VII discrimination claim based upon a failure to promote, denial of overtime, negative reviews, and receipt of a disproportionately heavy workload. Defendant’s motion to dismiss is also denied as to the retaliation and hostile work environment claims under Title VII.
SO ORDERED.
Notes
. The Court also dismissed plaintiffs claim that he was discriminated against based upon his age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”). (See March 21, 2014 Order, Docket No. 14.) Plaintiff’s second amended complaint does not ap
.Plaintiffs initial complaint and his amended complaint indicated that he was bringing claims under Title VII. (See Docket Nos. 1 and 19.) Although plaintiffs second amended complaint does not specifically state the statute under which he seeks relief and plaintiff alludes to requests for compensation for psychological trauma, mental pain and depression, sciatica, “physical and mental overload which turned my family life equal to hell,” humiliation in the work place, “salary and leave loss,” and "the salary equivalent to the number of days” of leave consumed, the Court assumes, for the purposes of this motion, that plaintiffs claims are for the violation of Title VII since that is the claim for which notice was given.
. Attached to plaintiff's SAC are his initial complaint, filed November 7, 2013, as well as several additional documents. The Court cites to the pagination of the SAC.
. Plaintiff’s complaint is difficult to follow and contains lengthy explanations about the harm he allegedly suffered. The Court does not provide details of all of the alleged harm here and, instead, includes only those facts necessary for deciding the instant motion.
. Plaintiff does not distinguish between discrimination on the basis of national origin or religion in alleging that these incidents were the result of discrimination. The Court infers that plaintiff intends to allege that these incidents provide the basis for his claims of both religious and national origin discrimination.
. Defendant argues that the SAC attributes the denial of overtime solely to plaintiff's refusal to pay a "bribe,” rather than any discriminatory animius. (Def. Mot. At 13.) However, plaintiff alleges that he refused to pay the bribe for religious reasons and that, after he communicated this to his supervisor, he was denied overtime. Drawing all reasonable inferences in plaintiff’s favor, the Court finds this is sufficient to allege an inference of discrimination.
. As defendant noted, the lack of a plausible claim on the termination is further highlighted by the fact (as set forth in the SAC) that the termination was made pursuant to New York State Civil Service Law § 73.