Skates v. Inc., CV 15-1136 (SJF)(AYS)

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: SHIELDS, Magistrate Judge
• Parties: EARLINE SKATES, Plaintiff, v. INCORPORATED VILLAGE OF FREEPORT, Defendant.
• Docket Number: CV 15-1136 (SJF)(AYS)
• Decision Date: 28 January 2016

EARLINE SKATES, Plaintiff,
v.
INCORPORATED VILLAGE OF FREEPORT, Defendant.

CV 15-1136 (SJF)(AYS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 28, 2016

REPORT AND RECOMMENDATION

SHIELDS, Magistrate Judge:

Plaintiff Earline Skates ("Plaintiff" or "Skates") brings this employment discrimination lawsuit against her former employer, Defendant Incorporated Village of Freeport ("Freeport," the "Village" or "Defendant"). Plaintiff alleges claims of discrimination based on race, disability, and the exercise of her First Amendment rights. She alleges claims of direct discrimination in the form of alleged adverse employment action as well as her ultimate termination. Additionally, Plaintiff sets forth claims of retaliation and a hostile working environment.

Plaintiff's Federal claims are brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); the Americans with Disabilities Act 42 U.S.C. §§ 12101 to 12213 (the "ADA"); the Family Medical Leave Act, 29 U.S.C. § 2601 et. seq. (the "FMLA"); 42 U.S.C. § 1981 ("Section 1981"), and 42 U.S.C. §1983 ("Section 1983" or the "Civil Rights Claims"). The Civil Rights Claims allege race discrimination in violation of Section 1981, and First Amendment retaliation. Plaintiff also alleges parallel claims pursuant to the New York State Human Rights Law § 296 (the "NYSHRL").

Presently before this Court, upon referral by the Honorable Sandra J. Feuerstein for Report and Recommendation, is Defendant's motion, pursuant to Rule 12 of the Federal Rules of

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Civil Procedure, to dismiss the Complaint in its entirety. For the reasons set forth below, it is respectfully recommended that the motion be granted in part and denied in part.

BACKGROUND

I. Documents Considered

The facts considered herein are drawn from the Complaint and other documents properly before the Court, as set forth below. As is required in the context of this motion to dismiss, the factual allegations in the Complaint, though disputed by Defendant, are accepted to be true for purposes of this motion, and all reasonable inferences are drawn therefrom in favor of the Plaintiff.

While facts to consider in the context of a Rule 12 motion to dismiss are generally limited to those set forth in the pleadings, a court may consider matters outside of the pleadings when determining, for purposes of a Rule 12(b)(1) motion, whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) aff'd, 561 U.S. 247 (2010).

Additionally, in the context of a Rule 12(b)(6) motion, a court may consider: (1) documents attached to the Complaint as exhibits or incorporated by reference therein; (2) matters of which judicial notice may be taken; or (3) documents upon the terms and effect of which the Complaint "relies heavily" and which are, thus, rendered "integral" to the Complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see International Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir.1995). Moreover, "[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Glob.

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Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.1998)).

Prior to instituting this lawsuit, Plaintiff filed three administrative claims of employment discrimination (collectively the "Administrative Charges"). The first two claims (the "First Charge" and the "Second Charge") were filed with the New York State Division of Human Rights (the "NYSDHR Complaints"). The third administrative claim of employment discrimination was filed with the United States Equal Employment Opportunity Commission (the "EEOC") (the "Third Charge"). Decisions rendered in connection with the Administrative Charges and documents filed thereunder are annexed as extensive exhibits to Defendant's motion. Such documents are public and referenced in Plaintiff's Complaint. There is no question as to her notice thereof. These documents are properly considered in the context of the present motion to dismiss. See Morris v. David Lerner Associates, 680 F. Supp. 2d 430, 436 (E.D.N.Y. 2010); Muhammad v. New York City Transit Authority, 450 F. Supp. 2d 198, 204-205 (E.D.N.Y. 2006); see also James v. Federal Reserve Bank of New York, 2005 WL 1889859, at * 1 n. 2 (E.D.N.Y. 2005) (noting that a court may take judicial notice of an EEOC charge).

The Court turns now to discuss the facts set forth in Plaintiff's Complaint, construed in her favor, as well as those appearing in the documents properly considered herein.

II. Plaintiff's 2009 - 2012 Employment by the Village

Plaintiff is an African American female who was first employed by the Village in July of 2009 as a seasonal employee working in the office of the Village Assessor. Plaintiff worked at that position until July 20, 2010, when she became a full-time permanent clerk in the Assessor's office. Plaintiff characterizes her duties while employed at the Assessor's office as comprised primarily of paralegal tasks. See Docket Entry ("DE") 1, Complaint ("Compl.") ¶ 26. Such duties

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included, inter alia, assisting seniors with applications for tax reductions, preparing paperwork for assessor hearings, clerical work, data entry, and working with the building department in the issuance of permits. Compl. ¶ 27.

III. May-June 2012: Events Preceding the First Charge

On May 28, 2012, Plaintiff attended the Village Memorial Day parade. While at the parade, Plaintiff collected signatures in support of a local campaign known as "Resolution 18/44," a Village Resolution aimed at keeping broadcasts of the Village Board of Trustees meetings on local public access television. Compl. ¶ 31. Plaintiff asserts that she was observed at the parade by two disapproving Village Trustees who instructed the Village Superintendent of Public Works to order Plaintiff to stop collecting signatures. Compl. ¶¶ 31-32. Plaintiff alleges that the subject of her signature collection came up at a June 2012 meeting of the Village Board of Trustees. There, the two Trustees who disapproved of Plaintiff's signature collection efforts are alleged to have publicly voiced their disapproval, and to have commented that Plaintiff should therefore not be employed by the Village. Compl. ¶¶ 33. Despite these comments, Plaintiff retained her job with the Village.

IV. August 17, 2012: The First Charge

Approximately three months after the Memorial Day parade, on August 17, 2012, Plaintiff filed a complaint with the NYSDHR (the "First Charge"). That complaint alleged, inter alia, that Plaintiff was subject to discriminatory employment practices on account of her race, national origin, sex, and age, in violation of Title VII and the NYSHRL¹. See DE 15,

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Defendant's Motion ("Def. Mot."), Ex. B. In a "Determination and Order After Investigation" dated December 20, 2012, the NYSDHR issued finding of no probable cause to believe that discrimination had occurred. While the decision refers to Plaintiff's signature collection during the parade, and that she and the Trustees were involved in a heated discussion, it also notes that Plaintiff provided no evidence that she was discriminated against, or of any negative employment action. Def. Mot., Ex. C. The NYSDHR therefore ordered the First Charge dismissed, and the file closed. On February 13, 2013, the Equal Employment Opportunity Commission ("EEOC") adopted the findings of the NYSDHR and issued a right to sue notice. Det. Mot., Ex. D. The 90 Days set forth in the February 13, 2013 lawsuit passed without the filing of a lawsuit, and Plaintiff continued to work for the Village.

V. March 2013-August 7, 2013: Events Preceding the Second Charge

A. Plaintiff's March 2013 Support of Mayor Hardwick

In March of 2013, while still employed by the Village, Plaintiff made clear her support for then-Mayor Andrew Hardwick in the upcoming mayoral election. Compl. ¶ 30. She asserts that she was involved in gathering information regarding the residency of Hardwick's opponent, Robert T. Kennedy, who was rumored to be living in Lynbrook, New York, rather than in the Village. Compl. ¶ 34. Plaintiff states that her investigation resulted in uncovering discrepancies concerning Kennedy's property, as well as a finding of illegal signatures in connection with his election. Compl. ¶ 36. On March 19, 2013 Mayor Hardwick lost the election to Kennedy. Plaintiff alleges that following Kennedy's election, all African-American Village employees were either transferred or fired. Compl. ¶ 44.

On or about April 2, 2013, two weeks after Kennedy was elected as mayor, Plaintiff was transferred from her position at the assessor's office to a position at the Freeport Recreation

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Center (the"FRC"), to work as a Recreation Attendant. Compl. ¶ 45. Plaintiff began her position as the FRC position on April 3, 2013. Her claims of adverse employment action, as discussed below, all stem from her transfer, the duties to which she was assigned and disciplinary actions taken while working at the FRC.

B. Plaintiff's Transfer to the FRC and her New Job Responsibilities

Although Plaintiff did not suffer any diminution in salary, her duties at the FRC differed completely from those at the assessor's office. While the latter was an administrative position, Plaintiff's work at the FRC was janitorial in nature. Specifically, her duties at the FRC included sweeping, dusting, painting, cleaning recreation center equipment, mopping floors, cleaning paint off of walls and tables, cleaning bathrooms, and cleaning the FRC parking lot. Compl. ¶ 53-54. Plaintiff, who...