Summary
In Chan v. New York City Transit Auth., No. 03 CV 6239, 2004 WL 1812818 (E.D.N.Y. July 19, 2004), the plaintiff's 15-month delay in reporting a single incident of inappropriate sexual conduct led the court to conclude that the plaintiff's claim was time-barred.
Summary of this case from Caravantes v. 53Rd St. Partners, LLCOpinion
03-CV-6239 (ARR)(RLM).
July 19, 2004
Mark L. Lubelsky, Mark L. Lubelsky and Associates, New York, NY, Attorney for plaintiff.
Francine E Menaker, New York City Transit Authority, Brooklyn, NY, Attorney for defendant.
OPINION AND ORDER
Plaintiff Sui Chan filed this action on December 11, 2003, alleging violations of Title VII, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Exec. §§ 291, 296, and New York City Administrative Code § 8-107, and bringing claims for breach of contract and intentional infliction of emotional distress. By motion dated April 9, 2004, defendants move to dismiss all of plaintiff's discrimination claims and her claim for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, defendants' motion is converted to a motion for summary judgment. The summary judgment motion is granted and plaintiff's complaint is dismissed.
BACKGROUND
Only those facts material to resolution of defendant's motion are set forth here; except as noted they are undisputed. Plaintiff Sui Chan has been an employee since April 12, 1999 of defendant New York City Transit Authority ("the TA"). (Affidavit of Sui Chan, Apr. 22, 2004 ("Chan Aff.") ¶ 16, attached as Ex. A to Affirmation of Mark L. Lubelsky in Opposition to Motion to Dismiss, Apr. 23, 2004 ("Lubelsky Aff."); Compl. ¶ 2.) She currently holds the position of Staff Analyst II in the Department of Subways, Maintenance of Way Engineering Department, a department which serves both the TA and its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority. (Chan Aff. ¶¶ 3-6; Compl. ¶ 18; Declaration of Francine E. Menaker, Apr. 9, 2004 ("Menaker Decl.") ¶¶ 2-4.)
As discussed infra, the court has taken note of the additional evidentiary materials submitted by both parties.
In May or June of 2001, Chan entered a conference room to talk to defendant Charles DeClara, her co-worker. (Chan Aff. ¶ 11, Compl. ¶ 19.) After DeClara excused himself to make a phone call to his wife, Chan turned to the window and leaned over to look out. (Chan Aff. ¶¶ 12-13; Compl. ¶¶ 20-22.) As she looked out the window she felt her hips being grabbed from behind and felt something press against her buttocks; she turned and saw DeClara pressing his face against her. (Chan Aff. ¶¶ 14-15; Compl. ¶¶ 22-23.) When Chan demanded an explanation, DeClara initially explained that he tripped, but then admitted that he grabbed her because he lost control and could not help himself. (Chan Aff. ¶ 17; Compl. ¶ 25.) Chan left the room extremely upset; DeClara followed her, pleading with her not to mention the incident to anyone. (Chan Aff. ¶¶ 19-20; Compl. ¶¶ 27-28.)
DeClara kept up this pleading for "days" afterwards. (Compl. ¶ 28.) The week after the incident, Chan told Brian Riccardi, another co-worker, what had happened; she also told her fiancé, Howard Sun. (Compl. ¶¶ 29-30.) In the ensuing months DeClara repeatedly sought plaintiff's forgiveness in person or via e-mail and renewed his request that she not tell anyone else, and sought to explain himself both to Chan and to Sun and Riccardi. DeClara asked Sun and Riccardi to persuade Chan to give him another chance at being friends. (Chan Aff. ¶¶ 21; Compl. ¶¶ 29-33.) DeClara invited Chan to social events and left her notes. (Compl. ¶ 37.) Chan tried to avoid contact with DeClara and rejected his requests, asking that he leave her alone. (Chan Aff. ¶ 22; Compl. ¶ 34, 37.)
On October 1, 2002, Chan filed a complaint with the MTA Office of Civil Rights, Division of Equal Employment Opportunity, alleging "physical sexual harassment" occurring most recently on September 24, 2002. (Chan Aff. ¶ 23; Menaker Decl. Ex. A.) The Office of Civil Rights launched an investigation, during the pendency of which DeClara was moved to a different area on the floor where Chan worked. (Compl. ¶ 39.) During this time, DeClara continued to contact Chan to seek her forgiveness and she saw him in public areas of the floor (Compl. ¶ 39.) On April 1, 2003, the Office of Civil Rights issued a finding that there was reasonable cause to believe that DeClara inappropriately touched Chan and subjected her to harassing behavior. (Chan Aff. ¶ 25; Compl. ¶ 41; Menaker Decl. Ex. B.) The matter was referred to a TA supervisor, Michael Lombardi, who suspended DeClara without pay and, upon completion of the suspension, moved him to an office on a different floor than Chan. (Chan Aff. ¶ 26; Compl. ¶ 43; Menaker Decl. ¶ 11.) Chan continued to see DeClara in common areas around the building, and on several occasions when DeClara interrupted meetings between Chan and her supervisor, Robert Vinci. (Chan Aff. ¶¶ 29, 30; Compl. ¶ 46.) This incidental contact reminds Chan of DeClara's assault and causes her emotional distress, as does the fear of running in to him around the office. (Chan Aff. ¶¶ 31, 32; Compl. ¶ 46.)
In her verified complaint, Chan alleges that DeClara was suspended for two weeks. (Compl. ¶ 43.) Counsel for defendant avers in her declaration that he was suspended for four weeks and referred to mandatory counseling. (Menaker Decl. ¶ 11.) Chan apparently concedes that this is correct in her brief. (Pl. Mem. at 9.) The dispute, if any, is immaterial to the resolution of the motion.
Chan filed a complaint with the EEOC on August 26, 2003, raising the claims that are the gravamen of the federal claim in this suit: namely, that her employer's failure to take reasonable steps to segregate DeClara created a hostile work environment and constituted retaliation for her October 2002 complaint of harassment. (Menaker Decl. Ex. C.) The EEOC issued a right-to-sue letter on September 26, 2003, which Chan received on October 2, 2003 (Compl. ¶ 3.) This action timely followed.
DISCUSSION
The court has jurisdiction under 28 U.S.C. § 1331. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), (2).
Defendants move to dismiss Chan's complaint on the grounds (1) that her Title VII claim is time-barred and fails to state a claim on which relief can be granted; (2) that her pendent state discrimination claims, while timely, fail to state a claim on which relief can be granted; (3) that the defendant public benefits corporations are immune from punitive damages; (4) that the New York City Administrative Code provides no relief against defendants; and (5) that defendant MTA is not plaintiff's employer and is therefore not a proper party to this action. Considering defendants' motion as one for summary judgment pursuant to Fed.R.Civ.P. 56(c), the court grants the motion on the first ground and does not reach defendants' remaining arguments.
1. Conversion to summary judgment
Though defendant brings this motion pursuant to Rule 12(b)(6), both parties have elected to supplement the record with extrinsic materials. Defendants have submitted a declaration of their in-house counsel, Francine Menaker, copies of the MTA's response to Chan's internal complaint and Chan's EEOC complaint, both referred to in Chan's verified complaint (Menaker Decl. Exs. B, C; Compl. ¶¶ 3-4, 41), and a copy of a letter showing that Chan filed her internal complaint on October 1, 2002, not October 1, 2001 as alleged in the complaint (Menaker Decl. Ex. A;compare Compl. ¶ 38). Chan has submitted three exhibits: a copy of the same letter submitted by defendants as Exhibit B (Lubelsky Aff. Ex. A); an affidavit from Chan setting forth essentially the same facts recited in the verified complaint and describing the psychological and emotional effects of her continued contact with DeClara (Lubelsky Aff. Ex. B); and copies of documents relating to defendant TA's sexual harassment policies (Lubelsky Aff. Ex. C).
Although the court may consider certain of these documents without converting the motion to one for summary judgment because they are incorporated by reference in the verified complaint,see Yak v. Bank Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001), in light of these submissions (in particular the affidavits of Chan and Menaker), the court determines sua sponte that defendants' motion should be converted. See Fed.R.Civ.P. 12(b). It is clear, since both parties developed and cite to affidavit evidence, that plaintiff was aware of the propriety of doing so and has had adequate opportunity to present pertinent material. See id. In addition, there is no risk of prejudice in the sua sponte conversion because the court's decision on the motion is confined to grounds raised by defendants, as set forth below; the material facts alleged by plaintiff are accepted as true and undisputed; and plaintiff evinces an awareness in her brief that the motion might be considered one for summary judgment. See Pl. Mem. at 4 (arguing that issues of fact preclude grant of summary judgment);Kennedy v. Empire Blue Cross Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (where court confines decision to grounds raised by defendant and plaintiff has supplemented record with exhibits relevant to those grounds, no prejudice in sua sponte conversion without prior notice); In re G. A. Brooks, Inc., 770 F.2d 288, 295 (2d Cir. 1985) ("The essential inquiry is whether [the plaintiff] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was unfairly taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.").
II Summary judgment standard
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists." Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). "On summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). In making the necessary showing, "[c]onclusory allegations [by the non-moving party] will not suffice to create a genuine issue." Delaware Hudson Ry. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990). A "genuine" issue is one that could be decided in favor of the non-moving party based on the evidence by a reasonable jury.See Liberty Lobby, 477 U.S. at 248. The role of the court in deciding a motion for summary judgment is not to decide issues of fact, but only to determine whether or not they exist. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).
III. Defendants' motion
A. Hostile work environment claim
Chan bases her Title VII cause of action on the ground that DeClara's harassment of her and her employer's inadequate response rendered the work environment hostile. Sexual harassment in the absence of an adverse job action is actionable under Title VII where it is "so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (internal quotations and citation omitted). "In determining whether an actionable hostile work environment exists, [courts] look to `all the circumstances,' including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." National Railroad Corp. v. Morgan, 516 U.S. 101, 116 (2002) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Defendants argue that, assuming all of Chan's factual allegations to be true, this claim is time-barred, and in any event insufficient as a matter of law to make out a hostile work environment claim.
As a prerequisite to suit in federal court in New York, a claim of sexual harassment must be lodged with the EEOC within 300 days of the alleged act of discrimination. 42 U.S.C. § 2000e-5(e)(1);Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 327 (2d Cir. 1999) (under work-sharing agreement between EEOC and New York State Division of Human Rights, initial filing with EEOC entitles plaintiff to 300-day period); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (incidents not timely charged before EEOC pursuant to § 2000e-5(e)(1) deemed time-barred upon suit in district court). In Morgan, the Supreme Court made clear that because the creation of a hostile work environment "cannot be said to occur on any particular day," 536 U.S. at 116, when a Title VII claim relies on this theory the timely filing provision of § 2000e-5(e)(1) only requires that one act "contributing to the claim" have occurred within the limitations period; the court may then consider all acts contributing to the hostile environment whether or not they fall within the period.Id. at 117; see also id. at 118 ("In order for the charge to be timely, the employee need only file a charge within . . . 300 days of any act that is part of the hostile work environment."). Chan's EEOC complaint was filed on August 26, 2003. Therefore, in order for her Title VII claim to be timely, some actionable harassment must have taken place on or after October 30, 2002, some sixteen months after DeClara's assault.
Chan does not claim that DeClara's behavior toward her during this limitations period continues to constitute "activ[e]" sexual harassment. (Pl. Mem. at 10.) Instead she asserts that the non-time-barred actionable conduct is her employer's continuing failure adequately to remedy DeClara's harassment, resulting in his "unfettered access" to her and the anxiety and upset she feels upon having to "confront" him in the workplace. (Pl. Mem. at 1, 5, 10, 13.)
It is well-established that an employer may not be held liable for a co-worker's harassment on a hostile work environment theory unless it was negligent in failing to remedy the offending behavior, and in that sense an employer's conduct is relevant to establishing the employer's liability under Title VII.Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 441 (2d Cir. 1999); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir. 1998) (employer only liable if it "`either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.'" (quoting Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995)). The question of whether liability may be imputed to the employer on the basis of its negligence is entirely distinct, however, from the question of whether there is something to be liable for. See Distasio, 157 F.3d at 63 (" Once a plaintiff has established the existence of a hostile workplace, she must then demonstrate that the harassing conduct `which created the hostile situation should be imputed to the employer.'" (quoting Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir. 1992))) (emphasis added);see also B. Lindenmann P. Grossman, Employment Discrimination Law 613 (2002 Supp.) ("Once the plaintiff has established a prima facie case of sexual harassment, the next question is who is responsible for the harassment.").
Chan has cited no authority suggesting that such employer inaction is itself a hostile act, and the court's own research has disclosed none. Instead, courts (including district courts in this circuit) appear to have uniformly rejected the notion that a failure adequately to remediate sexual harassment itself constitutes an act that may contribute to a hostile work environment claim. In Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998), abrogated in part on other grounds by Morgan, 536 U.S. at 116-18, the First Circuit found that where there was no indication that an employer's failure to remedy a supervisor's serious acts of sexual harassment (including touching the victim's genital area) had the effect of exacerbating that harassment, the failure to remediate extending into the limitations period could not constitute actionable harassment so as to render the plaintiff's claim timely: "Failure by [the employer] to remediate . . ., although it constitutes improper behavior that could subject the company to liability, . . . is not itself sexual harassment." Id. at 15. Here, as in Provencher, there is no allegation that the allegedly deficient remedial steps led to further acts of sexual harassment.
Provencher found, relying on the First Circuit's then-applicable jurisprudence, that the plaintiff could not establish a continuing violation making his hostile work environment claim timely because, inter alia, the non-time-barred acts of harassment did not bear a sufficient similarity and proximity in time. Under Morgan, the result might be different. See Crowley v. L.L. Bean, Inc., 303 F.3d 387, 406 (1st Cir. 2002) (recognizing that Morgan abrogates caselaw framing discussion in Provencher); but see Morgan, 536 U.S. at 120 (noting that a court must still determine "whether the [non-time-barred] acts about which an employee complains are part of the same actionable hostile work environment practice" as time-barred acts). Morgan in no way affects Provencher's applicability to the case at bar, however: under pre- and post-Morgan law alike, a plaintiff must establish that some non-time-barred act occurred within the limitations period — as the Provencher court put it, there must be some act to "anchor" the claim. 145 F.3d at 15. Provencher's relevant discussion followed the court's finding that there was no continuing violation and concerned whether the failure to remediate could, alone, ground a claim.
Similarly, in Burrell v. City University of New York, 995 F. Supp. 398 (S.D.N.Y. 1998), Judge Sweet rejected the plaintiff's argument that her hostile work environment claim should be deemed timely because her employer's "ongoing failure to remediate" had continued into the limitations period. Id. at 407. Judge Sweet explained:
The fact that CUNY's failure to remediate lasted into the limitations period cannot render the earlier occurrences of sexual harassment timely; CUNY's failure to remediate goes to establish CUNY's liability, not to establish actionable sexual harassment. If a "hostile work environment" claim were rendered timely by an ongoing failure to remediate, even after the sexual harassment had ceased, the theory would become an automatic "continuing violation", even when the last act of harassment occurred before the limitations period. Such is not the law in this Circuit.Id. (citing Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)) (emphasis added). See also Thurston v. Henderson, 230 F.3d 1347, 2000 WL 1503046, *1 (1st Cir. 2000) (unpublished table op.) ("[W]hile failure by an employer to take remedial steps may constitute improper behavior subjecting it to liability, that failure is not itself harassment."); Speer v. Rand McNally Co., 123 F.3d 658, 664-65 (7th Cir. 1997) ("That the resolution of her internal complaint was different than [plaintiff] would have liked is not an independent and actionable wrong. . . . If we found a continuing violation of Title VII on [the basis of such an anchor violation], then in many hostile work environment cases the statute of limitations period would never end, as the circumstances of the workplace (like a supervisor continuing to work with an employee) often do not change even though discriminatory acts cease."); Fontanez v. Thompson, No. 00-CV-2090, 2003 WL 1964052, *12 (S.D.N.Y. Apr. 24, 2003) ("[D]efendants' continued refusal to take any steps to . . . create a safe, non-threatening work environment" for plaintiff could not constitute actionable harassment as part of hostile work environment claim (citing Burrell)); cf. Geer v. Marco Warehousing, Inc., 179 F. Supp. 2d 1332, 1339 n. 3 (M.D. Ala. 2001) (noting that adequacy of supervisor's response to complaints, though relevant to employer liability for otherwise valid claim, is irrelevant to question of whether harassment was actionable (citing Speer and Burrell)). These cases clearly establish that an employer's failure to take remedial steps does not itself give rise to a hostile work environment claim, and therefore cannot serve to make timely a claim based on a time-barred instance of harassment. Chan cannot rely on TA's management decisions to show that her claim is timely.
Again, Morgan does not affect this holding: the Morgan Court continues to insist that some actionable instance of harassment within the limitations period anchor a hostile work environment claim. Morgan thus preserves this much of the Second Circuit's holding in Cornwell, cited by Judge Sweet.
There is a suggestion, however, of a different argument in Chan's brief: that (independent of any of TA's actions) DeClara's continued presence and his attempts to contact and apologize to her up to the present have contributed to the hostile environment within the limitations period. See Pl. Mem. at 8 ("a work situation where the plaintiff is forced to confront her attacker everyday [sic] is so severe and pervasive that it alters the terms and conditions of her employment for the worse"); id. at 10 ("DeClara's unfettered access to the plaintiff has created a continuous and ongoing hostile work environment."). While Chan cites no controlling Second Circuit authority and the court has found none, a number of circuits have been receptive to the argument that a harasser's continued proximity to and contact with the victim in the workplace can contribute to the hostile work environment in the wake of a particularly severe episode of harassment. See, e.g., Konstantopolous v. Westavco Corp., 112 F.3d 710, 717-18 (3d Cir. 1997); Saxton v. American Tel. Tel. Co., 10 F.3d 526, 536 n. 18 (7th Cir. 1993); Ellison v. Brady, 924 F.2d 872, 883 (9th Cir. 1991) ("[I]n some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment"); cf. Wills v. Brown Univ., 184 F.3d 20, 27 (1st Cir. 1999) (noting in dicta that "[o]n some cases, merely to maintain a harasser in a position of authority over the victim, after notice of prior harassment, could create new liability.").
The argument does not assist Chan, however. In the first place, it is highly doubtful, after Morgan, whether a harasser's continued contact with the victim (which contact is concededly not harassing in nature) can constitute an "act" within the limitations period sufficient to anchor a timely claim. See Morgan, 536 U.S. at 117 ("Provided than an act contributing to the claim occurs within the filing period," a hostile work environment claim based in part on time-barred acts will be timely) (emphasis added); Fielder v. UAL Corp., 218 F.3d 973, 986 (9th Cir.) (pre-Morgan case identifying issue but reserving decision), vacated, 536 U.S. 919 (2002) (vacating judgment for reconsideration in light of principles announced inMorgan). Even supposing that continued contact in general could anchor the claim, however, on the facts of this case Chan cannot show that DeClara's continued presence so operated. Chan alleges that DeClara acted during the limitations period, after her internal complaint had been filed, exactly as he had acted before it — he contacted her and asked her to forgive him. See Compl. ¶ 39 ("During [the pendency of the complaint] he continued harassing plaintiff to forgive him for sexually harassing her."); Chan Aff. ¶ 24 ("During this six-month period, defendant DeClara continued to repeatedly communicate to me either directly or through others to `apologize.'"). For some fifteen months following the conference room incident, Chan made no complaint regarding this behavior. Under these circumstances, no finder of fact could reasonably conclude that DeClara's presence and contact with Chan rendered the workplace pervasively hostile or abusive, or that Chan so perceived it. See Saxton, 10 F.3d at 536 n. 18 (where harasser, who had engaged in offensive sexual touching and kissing the victim against her will, had long since ceased such behavior, continued presence in workplace could not give rise to hostile work environment);Fierro v. Saks Fifth Avenue, 13 F. Supp. 2d 481, 494 (S.D.N.Y. 1998) (failure to complain of harassing behavior is evidence that plaintiff lacked necessary subjective perception of harassment rising to level of hostile work environment).
Defendant's motion to dismiss the hostile work environment claim is accordingly granted.
Although plaintiff's complaint does not explicitly identify retaliation as a cause of action under Title VII, alleging only that defendants "creat[ed] and/or maintain[ed] a hostile work environment in violation of Title VII," (Compl. ¶ 73) the complaint does allege, without elaboration, that plaintiff was retaliated against after complaining of discrimination to her employer. (Compl. ¶ 52.) The court will therefore consider the viability of the claim. See Burford v. McDonald's Corp., No. 03:02-CV-1738, 2004 WL 1392426, *5 (D. Conn. June 2, 2004) (considering complaint to state retaliation claim based on factual allegations even where retaliation not set out in separate count as cause of action under Title VII).
"To plead a prima facie case of retaliation, an employee must allege that [s]he [1] engaged in protected participation or opposition, [2] that the employer was aware of this activity, [3] that the employer took adverse action against the employee, and [4] that there was a casual relation between the adverse action and the employee's protected activity." Tekula v. Bayport-Blue Point School Dist., 295 F. Supp. 2d 224, 229 (E.D.N.Y. 2003) (citing Sumner v. U.S. Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990)). Chan's complaint "will survive a motion to dismiss if, after construing all reasonable inferences and implications of the allegations in the complaint liberally in [her] favor, the Court determines that [s]he has pleaded facts sufficient to support the elements of a prima facie case." Id.
Defendants argue that plaintiff has not pled facts sufficient to support the third prong of her prima facie case, that her employer took an adverse action against her. "A plaintiff may suffer an `adverse employment action' if she endures a `materially adverse change in the terms and conditions of employment.'" Richardson, 180 F.3d at 446 (quoting Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997)); accord Galabya v. New York Board of Educ., 202 F.3d 636, 640 (2d Cir. 2000). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices . . . unique to a particular situation." Galabya, 202 F.3d at 640.
While her brief is somewhat unclear on this point, Chan apparently argues that the defendants' failure adequately to segregate DeClara constitutes such an action: "By forcing the plaintiff to regularly confront her attacker everyday, the TA created an adverse employment action making the plaintiff's job undesirable and thus creating a hostile work environment. The TA created this hostile work environment as a result of plaintiff's filing of her . . . [internal] complaint." (Pl. Mem. at 15.) InRichardson, the Second Circuit held that an employer may be found to have taken an adverse job action where it negligently allowed the plaintiff's co-workers to engage in "severe" and "unchecked" retaliatory harassment. 130 F.3d at 445. Chan appears to intend to avail herself of this holding to establish that TA took an adverse action against her. See Pl. Mem. at 13-14 (quoting without attribution Richardson, 130 F.3d at 446 ("so too will an employer be held accountable for allowing retaliatory co-worker harassment to occur if it knows about the harassment but fails to stop it.").
Though Chan also argues that the hostile work environment was created in response to the filing of her "EEOC sexual harassment complaint" and the instant suit (Pl. Mem. at 13, 15), the complaint does not allege that TA did anything after August of 2003 that changed or in any way affected DeClara's access to her. The court assumes that Chan means to argue that TA's decision in April of 2003, after the filing of her internal complaint, constituted retaliation.
To bring her claim within that holding, however, she necessarily relies sub silentio on a further argument: that DeClara's conduct after her internal complaint was filed in October 2002 itself constitutes retaliatory harassment — that is, harassing behavior undertaken because of or in reaction to her protected activity. See Richardson, 130 F.3d at 445-46. Even "construing all reasonable inferences and implications of the allegations in the complaint liberally in [her] favor,"Tekula, 295 F. Supp. 2d at 229, and taking into account her additional affidavit evidence, nothing in the record even remotely supports such an inference. As noted above, Chan alleges that DeClara acted after her internal complaint was filed exactly as he had before it — he contacted her and asked her to forgive him. She does not allege that the character or frequency of this conduct was in any way altered or affected by the filing of her complaint. Chan thus fails to point to any evidence on the basis of which she could make out aprima facie case that DeClara's conduct was retaliatory. As a matter of law, therefore, the TA's failure adequately to abate that behavior cannot constitute an adverse action taken in retaliation. Defendant's motion to dismiss so much of the complaint as states a claim of retaliation in violation of Title VII is therefore granted. Because Chan's claim of a hostile work environment also fails, plaintiff's Title VII claim is dismissed in its entirety.
C. Pendent claims
In light of the grant of defendant's motion on the federal claims, the court declines to exercise supplemental jurisdiction over plaintiff's state and local law claims, see 28 U.S.C. § 1367(c)(3); Seabrook v. Jacobson, 153 F.3d 70, 71-73 (2d Cir. 1998), and does not reach defendants' further arguments.
SO ORDERED.