Bowman v. N.Y. State Hous. & Cmty. Renewal
| Decision Date | 11 March 2020 |
| Docket Number | 18 Civ. 11596 (ER) |
| Parties | LORITA M. BOWMAN, Plaintiff, v. NEW YORK STATE HOUSING AND COMMUNITY RENEWAL, ARLENE MARDER, and MARGARET RAMROOP, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Lorita M. Bowman, proceeding pro se, brings this suit against her employer, the New York State Division of Housing and Community Renewal ("HCR"), and HCR employees Arlene Marder and Margaret Ramroop. Bowman alleges that the defendants failed to promote her because of her race, age, national origin, and sex. Bowman filed an Equal Employment Opportunity Commission ("EEOC") complaint concerning this discrimination, and Defendants allegedly retaliated by transferring Bowman to a different position. Bowman additionally claims she suffered from a hostile work environment. These claims are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Age Discrimination in Employment Act of 1967 at 29 U.S.C.A. § 621 et seq. ("ADEA"), and New York Civil Service Law § 61 ((McKinney 2012). Lastly, Bowman claims that her right to union representation was violated. Pending before the Court is Defendants' motion to dismiss Bowman's Complaint on the basis of lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
For the reasons set forth below, Defendants' motion to dismiss Bowman's Complaint is GRANTED. Bowman's case is dismissed, but she may replead her discrimination, retaliation, and hostile work environment claims.
Bowman's allegations are set forth in a 106-page Complaint, consisting of a pro se form complaint, her written statement of claim, documents and communications with the EEOC, documents and communications with HCR, attachments of legal regulations, and written statements and documents describing Bowman's co-workers.
Bowman is a 61-year old, black and Cherokee Indian woman. Compl. at 3-4, Doc. 2. She has been employed with the New York State HCR at their Rent Score Operations Unit ("Score") since 2012 where she screens and dockets rental applications and serves petitions for administrative review. Compl. at 9, 17, 84. Prior to working with the Score unit, Bowman was assigned to HCR's Major Capital Improvement Unit ("MCI") for four years. Id. at 82; Mem. of Law in Supp. Of Defs.' Mot. to Dismiss, Doc. 27 at 4.
Documents provided by Bowman show that in March 2013, HCR's Bureau Chief and then-Deputy Bureau Chief Anthony Tatano conducted an investigative interview with Bowman concerning a complaint that she had instigated a fight between other employees and called other employees "stupid." Id. at 47-48. The two were also told by other employees that Bowman advised co-workers not to do their work and to ignore supervisors, and spoke derogatorily about other employees. Id. at 61. In a memorandum to Bowman after the interview, Tatano wrote that the employees provided the information "in confidence and thus [Tatano] will not disclose their names, and therefore no formal action will be taken at this time." Id. at 61-62. In response to the complaints, Bowman denied any wrong-doing in March 2013 memorandum and a June 2013 affidavit. Id. at 47-52.
Several years later, in May 2016, the Bureau Chief emailed her regarding complaints by her co-workers about her phone use. Id. at 74. Specifically, the co-workers reported Bowman frequently had personal phone conversations during the workday. Id. Some of these conversations reportedly disparaged co-workers who were within earshot. Id. Bowman replied to the manager's email, denying that she used the telephone or disparaged co-workers. Id.
More than one year later, in August 2017, Bowman had a separate dispute with another employee over her spraying of a "very light and airy Mist fragrance." Compl. at 68-69. The other employee accused Bowman of continuing to spray the fragrance throughout the day despite her requests to stop. Bowman's supervisor was aware of this dispute, but Bowman denied any wrong-doing in an August 2017 affidavit submitted to her supervisor. Id.
In that same year, Bowman received a positive performance review describing her work as "exemplary." Compl. at 98.
Bowman took a civil service exam in January 2017 in order to apply for a position listed on the "Rent Examiner Trainee List." Compl. at 7. She passed the exam with a grade of 80 percent. Id. However, she was notified in November 2017 that she would not be promoted.1 Id.
Bowman's claims that two employees with lower passing scores of 70 percent were promoted. As alleged, both employees are female and under the age of forty, one is white, and the other is white and Hispanic. Compl. at 43. Both employees worked for HCR for less time than Bowman did: the first was employed for two years and four months, Id. at 38, and the second was employed for two years. Id. at 43. In hercomplaint, Bowman states that she worked with HCR for approximately ten years, six years in the Score unit and for four years in the MCI unit prior to that. Id. at 82.
On April 23, 2018, Bowman filed a complaint with the EEOC alleging discrimination based on her race, age, and national origin. Compl. at 9, 12. In the charge Bowman stated that she was not promoted while the employees that were younger, white, had lower exam grades, and had less seniority than she were promoted. Id. at 9. Bowman did not include any claims of discrimination based on her sex or hostile work environment in the EEOC charge. Id. at 9, 12, 87.
The next day, on April 24, 2018, Bowman was summoned by Margaret Ramroop, an HCR "Specialist 2" of the Score unit, to meet with Anthony Tatano, Chief of the Property Management Bureau. Compl. at 82. Bowman's direct supervisor, Arlene Marder, also attended the meeting. Compl. at 7, 82.
Tatano stated that work in Bowman's department was being reduced in size due to technological developments, and that Bowman would be transferred from the Score unit to the MCI unit, where she had originally worked until 2011. Bowman describes the MCI unit in her Complaint as "unfavorable." Compl. at 82, 87. Bowman's responsibilities at the MCI unit were to "docket MCI applications." Id. at 82. She does not describe how these responsibilities differed from those in the Score unit, nor how the MCI unit was otherwise "unfavorable." Bowman claims that her work at Score was given to a newly appointed probationary Junior Rent Examiner who had been appointed to Score less than six months prior. Id.
Approximately one week after the meeting, in a May 1, 2018 memorandum to Tatano, Bowman claimed that her transfer was due to her challenging Tatano with a "'verbal' rebuttal and exercise[ing her] NYS Civil Service rights." Id. at 85. Bowman's Complaint does not state the time or content of this verbal rebuttal. The day after Tatanoinformed Bowman of her transfer, Bowman contacted the EEOC to bring an additional charge of retaliation and age discrimination. Compl. at 87.
The EEOC reviewed Bowman's allegations and was unable to conclude that a violation of federal law had occurred. Bowman submitted a written rebuttal of the EEOC's evaluation to the EEOC on August 31, 2018. Id. at 16. The EEOC reviewed Bowman's rebuttal, and issued a Notice of Dismissal and Right to Sue letter on September 12, 2018. Compl. at 12. Bowman filed her Complaint on December 12, 2018.
Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate the case. The party asserting subject matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). When evaluating a motion to dismiss for lack of subject matter jurisdiction, the Court accepts all material factual allegations in the complaint as true, but does not draw inferences from the complaint favorable to the plaintiff. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court is not required to credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also id. at 681 (citing Twombly, 550 U.S. at 551). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual contentthat allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).
The same standard applies to motions to dismiss pro se complaints. See Zapolski v. Fed. Republic of Germany, 425 F. App'x 5, 6 (2d Cir. 2011). The Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006) (internal quotation marks and citations omitted).
While the Court must construe a pro se complaint liberally, Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), "even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level." Jackson v. N.Y.S. Dep't. of Labor, 709 F. Supp. 2d 218,...
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