Opinion
6:20-CV-06156 EAW
2021-03-24
Thomas FELTON, Jr., Plaintiff, v. MONROE COMMUNITY COLLEGE, Monroe Community College Faculty Association, Jeffrey Dunker, Matthew O'Connor, Matthew Hachee, Bethany Gizzi, Todd Oldham, and William Rotenberg, Defendants.
Thomas Felton, Jr., Rochester, NY, pro se. Adam P. Mastroleo, Peter a. Jones, Bond, Schoeneck & King, PLLC, Syracuse, NY, for Defendants Monroe Community College, Jeffrey Dunker, Matthew O'Connor, Todd Oldham, William Rotenberg. Andrea a. Wanner, New York State United Teachers Office of General Counsel, Matthew E. Bergeron, Office of Robert T. Reilly, Latham, NY, for Defendants Monroe Community College Faculty Association, Matthew Hachee, Bethany Gizzi.
Thomas Felton, Jr., Rochester, NY, pro se.
Adam P. Mastroleo, Peter a. Jones, Bond, Schoeneck & King, PLLC, Syracuse, NY, for Defendants Monroe Community College, Jeffrey Dunker, Matthew O'Connor, Todd Oldham, William Rotenberg.
Andrea a. Wanner, New York State United Teachers Office of General Counsel, Matthew E. Bergeron, Office of Robert T. Reilly, Latham, NY, for Defendants Monroe Community College Faculty Association, Matthew Hachee, Bethany Gizzi.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Plaintiff Thomas Felton, Jr. ("Plaintiff") brings this action asserting claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. 2000e et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL"), New York Executive Law § 290, et seq. , and claims for breach of contract and harassment, alleging that defendants discriminated against him on the basis of his race. (Dkt. 1).
Presently before the Court is a motion filed by defendants Monroe Community College Faculty Association (the "Faculty Association"), Bethany Gizzi, and Matthew Hachee (collectively, the "Association Defendants"), to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1), (b)(5) and (b)(6), for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim. (Dkt. 13). Also before the Court is a motion filed by defendants Monroe Community College ("MCC"), Jeffrey Dunker, Matthew O'Connor, Todd Oldham, and William Rotenberg (collectively, the "College Defendants"), to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim. (Dkt. 14).
Defendants Dunker, O'Connor, Oldham, and Rotenberg also move to dismiss the complaint for insufficient service of process (see Dkt. 14-1 at 26-27) which, as explained below, is more properly brought pursuant to Rule 12(b)(5).
For the reasons explained below, the motion to dismiss filed by the Association Defendants (Dkt. 13) is denied, and the motion to dismiss filed by the College Defendants (Dkt. 14) is granted in part and denied in part. Specifically, the Court finds that Plaintiff has failed to properly serve both the Association Defendants (the Faculty Association, Bethany Gizzi, and Matthew Hachee) and the individual College Defendants (Jeffrey Dunker, Matthew O'Connor, Todd Oldham, and William Rotenberg). However, rather than dismiss Plaintiff's claims against them, pursuant to Federal Rule of Civil Procedure 4(m), the Court exercises its discretion and extends Plaintiff's time to serve the summons and complaint on these defendants until April 30, 2021. If Plaintiff fails to serve them by that date, his claims against them will be dismissed without prejudice pursuant to Rule 4(m). The remaining arguments raised by those defendants are denied without prejudice as premature, but with leave to renew should Plaintiff successfully effectuate service. With regard to defendant MCC, the Court denies the motion to dismiss Plaintiff's race discrimination, retaliation and breach of contract claims, but grants the motion to the extent that Plaintiff's harassment/hostile work environment claim is dismissed.
BACKGROUND
The following facts are taken from the complaint. As required on a motion to dismiss, the Court treats Plaintiff's factual allegations as true.
Plaintiff, an African American male, began working as an adjunct professor at MCC in the department of Information and Computer Technologies ("ICT") in 2010. (Dkt. 1 at 7). He was hired as an "Alice Young Intern," as part of an internship designed to provide students with learning opportunities from a diverse faculty. (Id. at 9). Plaintiff also served as a project coordinator for the "SUNY High Needs Grant," to increase diversity in mobile and cloud computing. (Id. at 7). Plaintiff alleges that his "all white chain of command" engaged in "trickery" by using "a ‘token’ person of the same race, from a different department to replace [him]," and that by replacing him with an individual of the same race, they "believed race discrimination would be a moot argument." (Id. ). Plaintiff alleges that the discrimination began "on or around July 20, 2017 and continued through late 2019," which was evidenced by "attempts to undermine [his] schedule, not benefit [him], because opportunities never materialized into additional courses for [his] adjunct teaching load, or notification of at least two-full time positions." (Id. ).
Plaintiff's "initial concern" occurred when defendant Jeffrey Dunker ("Dunker"), the ICT department chair, informed him that the Saturday courses taught by Plaintiff would be moved to weekdays, which Plaintiff could not understand, given the Saturday classes were often full with a waitlist. (Id. ). According to Plaintiff, moving his classes was a "concerted effort not to hire [him], reduce [his] courses and push [him] out of ICT." (Id. ). Plaintiff's course material was given to a "black adjunct from another department," and between 2016 and 2019, several individuals were hired into full-time positions, including a white woman, an Asian man, and a white man, and Plaintiff was not notified of those employment postings. (Id. at 7-8).
Plaintiff contends that "[w]hile it is the six individuals named in th[e] complaint [who] ... coordinated and acted directly against [him] or by proxy, [MCC] and the Monroe Community College Faculty Association are implicit in the discrimination...." (Id. at 8). Plaintiff points to the inaction of Dr. Calvin Gantt, MCC's Chief Diversity Officer, who was aware of the alleged discrimination against him, as evidence of the "systematic discrimination at MCC." (Id. ). Plaintiff alleges that "[w]hile [he is] the direct recipient of the actions of th[e] complaint, the broader impact to the community includes Black and Latino students at both MCC and P-Tech, a program school in the Rochester City School District w[ith] an Information Technology focus, as well as faculty and staff of color." (Id. ). Specifically, Plaintiff contends that while "the department of [ICT] at MCC was gaining momentum in its efforts to recruit and educate a diverse population of students into the fields of Cybersecurity and IT ... those efforts have fallen flat[.]" (Id. ).
Plaintiff received good performance evaluations while working at MCC and never had any "write-ups" for his performance. (Id. at 9). During the time he served as the project coordinator for the SUNY High Needs Grant in 2014 through 2016, he increased student enrollment in the ICT Cybersecurity program. (Id. ). Plaintiff also attended three Community College Cybersecurity Summits, including in 2015 through 2017, on behalf of MCC. (Id. ). In May 2016, Plaintiff organized a conference attended by approximately 200 participants, which addressed increasing diversity in cybersecurity and IT. (Id. ).
Plaintiff's complaints stem from the re-assignment of the Intro to Linux course he originally taught on weekends. On or about July 20, 2017, defendant William Rotenberg ("Rotenberg"), the Director of P-Tech, emailed Plaintiff to ask if he was involved in the development of a charter school or still with RCSD. (Id. ). Rotenberg also asked Plaintiff if he was interested in teaching Intro to Networking to P-Tech students, although "he could not guarantee anything." (Id. ). Also on July 20, 2017, Dunker requested access to the course material Plaintiff created for the Intro to Linux course to give to Harry Payne, an adjunct professor who was transferred from another department to ICT. (Id. at 9). On July 26, 2017, Plaintiff was asked by Rotenberg if in his "current job, [he could] ... teach a course or two during the school day?" (Id. ).
The Intro to Linux and Intro to Cybersecurity courses were subsequently moved from Saturday to a weekday, during a time Plaintiff was not available to teach and online, which "g[ave] full-time and part-time faculty priority over adjuncts, unless the adjuncts could teach during the day." (Id. at 10). On November 17, 2018, an individual named Binh-Yen Nguyen came to Plaintiff's Saturday Intro to Cybersecurity class in "9-185," and informed Plaintiff that he had received an email regarding an "Open House Lab" being held in 9-185 during the time Plaintiff was scheduled to teach, but Plaintiff had not received notification of this change from Dunker. (Id. ). Plaintiff moved the physical lecture to online assignments for the day. (Id. ). Thereafter, on November 18, 2018, Plaintiff emailed Dunker, stating his concerns "related to [him] not having [his] regular teaching assignment for Spring 2019 after giving the Intro to Linux course and the course material [he] created to Harry Payne." (Id. ). Plaintiff alleges that Payne's transfer to the ICT department was contrary to Dunker's claim that Payne was given that assignment due to "reduced enrollment," because at least two full-time positions were filled between 2016 and 2018. (Id. ). Plaintiff alleges that the filling of these two positions was a breach of contract, because he was not notified of these employment postings, "per the Faculty Association contract." (Id. ). On December 6, 2018, defendant Matthew O'Connor ("O'Connor"), the Assistant Vice President, emailed Plaintiff that there were "no contractual issues to discuss," and referred Plaintiff to Kimberley Collins "to discuss the contract." (Id. ).
On December 21, 2018, Plaintiff and Collins met with defendant Matthew Hachee ("Hachee"), a faculty association representative, and an individual named "Taine," another union representative, as well as Melissa Fingar, the assistant to the President of Human Resources and Organizational Development. (Id. ). Following the meeting, Hachee mistakenly sent Plaintiff an email meant for Taine, which said "I dont think the FA needs to stake any position other than to advise him privately. This is his fight entirely. I will forward emails asap .... Nothing really to do but observe the fireworks, I suspect." (Id. ). Plaintiff also met with Fingar, Collins, and Taine on December 21, 2018, "to discuss [his] discrimination complaint." (Id. ). On January 16, 2019, Fingar emailed Plaintiff that she "heard what you said and do not have any reason to question your statements or concerns. It would only be if I thought that you were not credible in your concerns that I would conduct a full-fledged investigation." (Id. at 12).
On January 30, 2019, Plaintiff met with defendant Bethany Gizzi ("Gizzi"), the Faculty Association President, to "discuss [his] grievance." (Id. at 10). On February 4, 2019, Gizzi emailed Plaintiff to inform him that she spoke with Fingar during a contract administration meeting, and that Fingar would be reaching out to Dunker and O'Connor. (Id. ). On February 15, 2019, Finger emailed Plaintiff to let him know that she had reached out to Dunker and O'Connor regarding Plaintiff's concerns, and that she understood Plaintiff's frustration. (Id. at 11). On February 24, 2019, Plaintiff emailed Gizzi "to ask about a time frame for a FA investigation," but she did not respond to his email. (Id. ).
On March 19, 2019, Plaintiff received a "new ICT form requesting information on adjunct daily availability." (Id. ). In the past, the department chair sent the faculty courses with the days and times for them to choose. (Id. ). Plaintiff was "a bit reluctant" to submit the form and was not comfortable taking the issue to the faculty association, given "their position related to the December 21, 2018 meeting." (Id. ). On April 5, 2019, Dunker advised Plaintiff that he could not honor his course request for Fall 2019 because Plaintiff had submitted his availability form past the deadline. (Id. ).
On October 10, 2019, after emailing Dunker his course selection for spring 2020, which included the Intro to Linux course, Plaintiff emailed Fingar, "to see if she could make sure Jeffrey Dunker understood [his] concern with the Intro to Linux course before assigning the course," because "once the course [was] assigned to an adjunct, [it] c[ould not] be taken from the adjunct." (Id. ). On October 15, 2019, Plaintiff emailed Dunker, to inquire as to why he assigned the Intro to Linux course to Payne in advance of the October 16th deadline. (Id. ). The Intro to Linux course was scheduled for a time during which Plaintiff was available. (Id. ). Plaintiff also asked to be assigned an online section of the Intro to Cybersecurity course. (Id. ). Dunker never replied to Plaintiff's email. (Id. ). Plaintiff alleges that Dunker's assignment of the Intro to Linux course in advance of the October 16th deadline was in violation of his own department procedures. (Id. ).
The College Defendants state in their motion papers that Plaintiff taught the Intro to Linux course during the Fall 2020 semester. (Dkt. 14-1 at 8). However, Plaintiff does not make this allegation in his complaint.
Plaintiff had a telephone call with Fingar on October 15, 2019. (Id. ). Plaintiff contends that she "agreed that it appear[ed] that Jeffrey Dunker ha[d] something against [him]." (Id. ). Ms. Finger told Plaintiff that she had not heard from defendant Todd Oldham, the Vice President of Economic and Workforce Development and Career Technical Education. (Id. ).
On October 15, 2019, Dunker emailed Plaintiff to inform him that he had set aside the online section of Intro to Cybersecurity for him and added him to the Master Schedule. (Id. ). Dunker also "referenced [Plaintiff's] obligations with RCSD," as well as the "March Intro to Keyboarding course [Plaintiff] had to cancel due to [his] contract with RCSD." (Id. ).
On November 22, 2019, Plaintiff emailed Dunker regarding his assignment to the online Intro to Cybersecurity course, as the Master Schedule still showed "TBA." (Id. at 12). Dunker emailed Plaintiff back the same day, stating that he would respond but that "other obligations were more pressing," but that he would "keep in touch." (Id. ).
Finally, Plaintiff alleges that Dunker, Rotenberg, and O'Connor report to Oldham. (Id. ). Plaintiff spoke with Fingar regarding sharing Plaintiff's concerns with Oldham on October 7, 2019, October 10, 2019, October 22, 2019, and October 28, 2019. (Id. ). Fingar reached out to Oldham regarding using a "adjunct coordinator," but had not heard back from him. (Id. ). Finally, Plaintiff alleges that he "made every attempt to go through the chain of command, but that everyone in [his] chain of command refused to meet with [him]." (Id. ).
Plaintiff alleges that he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 25, 2019. (Id. at 3, ¶ 10). On December 19, 2019, Plaintiff received a Dismissal and Notice of Rights letter from the EEOC, stating that based on its investigation, it was unable to conclude that the information obtained established violations of the statutes. (Id. at 13-14). Plaintiff filed the instant action on March 16, 2020, alleging violations of Title VII and the NYSHRL, for Defendants’ failure to employ him, failure to promote him, and retaliation, based on his race, as well as claims for breach of contract and harassment. (Id. at 1-7).
DISCUSSION
I. Plaintiff's Service of the Summonses and Complaint on the Faculty Association and the Individual Defendants (Bethany Gizzi, Matthew Hachee, Jeffrey Dunker, Matthew O'Connor, Todd Oldham, and William Rotenberg)
A. Legal Standard – Rule 12(b)(5)
"A Rule 12(b)(5) motion is the proper vehicle for challenging the mode of delivery or the lack of delivery of the summons and complaint." Jackson v. City of New York , No. 14-CV-5755(GBD)(KNF), 2015 WL 4470004, at *4 (S.D.N.Y. June 26, 2015) (quoting 5B Wright & Miller, Fed. Prac. & Proc. § 1353 (3d ed. 2004) ); DeLuca v. AccessIT Grp., Inc. , 695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010) ("A defendant may move to dismiss under Rule 12(b)(5) for insufficient service of process. In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the content, issuance, and service of a summons.") (citation omitted). "In considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, a court must look[ ] to matters outside the complaint to determine whether it has jurisdiction." Cassano v. Altshuler , 186 F. Supp. 3d 318, 320 (S.D.N.Y. 2016). "[T]he plaintiff bears the burden of establishing that service was sufficient." Ahluwalia v. St. George's Univ., LLC , 63 F. Supp. 3d 251, 260 (E.D.N.Y. 2014) (quotation omitted), aff'd sub nom. Ahluwalia v. St. George's Univ. , 626 F. App'x 297 (2d Cir. 2015) ; Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010) (burden is on plaintiff to establish that service was sufficient); Sunset Homeowners Ass'n, Inc. v. DiFrancesco , No. 1:19-CV-00016 EAW, 2019 WL 1597497, at *6 (W.D.N.Y. Apr. 15, 2019) ("When a defendant raises a Rule 12(b)(5) challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy." (internal quotations and citations omitted)).
B. Plaintiff's Service of the Summonses and Complaint
Both the Association Defendants and the individual College Defendants have moved to dismiss Plaintiff's complaint based on his failure to properly serve them. They contend that Plaintiff delivered his complaint to an individual named Henry Brown, a Mail Services Assistant at MCC's Mail Center, and that Mr. Brown is not authorized to accept service on their behalf. (See Dkt. 13-1 at 11-14; Dkt. 14-1 at 26-27). In support of their motions, Defendants submit the proofs of service, which state that process was served on "Henry Brown" who is "designated by law to accept service of process on behalf of Monroe Community College on ... 6/1/20." (See Dkt. 13-6 (proof of service for Bethany Gizzi); Dkt. 13-7 (proof of service for the Faculty Association); Dkt. 13-8 (proof of service for Mathew Hachee); Dkt. 14-7 at 2-4, 6 (proofs of service for Matthew O'Connor, Jeffrey Dunker, Todd Oldham, and William Rotenberg)).
In response, Plaintiff contends that MCC had "very specific procedures regarding mail delivery and service of summons during COVID-19" and he confirmed those procedures on May 5 and 26, 2020. (Dkt. 19 at 2; Dkt. 20 at 5). Plaintiff further contends that defendants Gizzi, Hachee, and Rotenberg must have received the summonses, because he received communications from them regarding his lawsuit shortly after he served the summonses and complaint. (Id. ). Plaintiff argues that "[t]he fact that it is stated that Mr. Brown's position as a mail handler does not designate Mr. Brown to accept mail on behalf of employees of MCC indicates how subordinates are viewed at MCC." (Dkt. 20 at 5). Finally, Plaintiff contends that the individual defendants were properly served because, according to the proof of service forms provided to him by the Court, they could be served upon a person designated by law to accept service on behalf of the college. (Id. ).
Pursuant to Fed. R. Civ. P. 4(e), a plaintiff may affect service on individual defendants by any of the following means:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Fed. R. Civ. P. 4(e). Service of process in New York is governed by section 308 of the Civil Practice Law and Rules ("CPLR"). According to CPLR 308(2), service can be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business[.]" CPLR 308(2) (emphasis added).
Further, pursuant to Fed. R. Civ. P. 4(h), which governs service on a corporation, partnership, or association, any such entity may be served in the manner prescribed for serving an individual under subsection (e)(1), or "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant." Fed. R. Civ. P. 4(h). Under New York law, service on an association may be accomplished by serving either the president, treasurer, secretary, or business agent, in the same manner as service on an individual. See N.Y. Gen. Ass'ns Law § 13 ("The service of summons, subpoena or other legal process of any court upon the president, vice president, treasurer, assistant treasurer, secretary, assistant secretary, or business agent, in his capacity as such, shall constitute service upon a labor organization.").
While MCC may have established specific procedures for the service of legal process directed to MCC during the COVID-19 pandemic, and Plaintiff represents that he followed those procedures—indeed, MCC has not moved for dismissal of the complaint based on a failure to serve—that does not excuse Plaintiff's failure to properly serve the remaining defendants, including the Faculty Association and the individual defendants. Plaintiff does not dispute that he attempted to serve all the defendants by delivering the summonses and complaint to Mr. Brown and, on the record before the Court, Mr. Brown was not permitted to accept service on behalf of the Faculty Association or the individual defendants. (See, e.g. , Dkt. 13-9 at ¶ 6 (Declaration of Bethany Gizzi, stating that she has "never authorized or designated Mr. Brown or anyone else at the College to accept legal service on behalf of myself or the Association," that she was "aware of no such authorization or designation issued by anyone else on behalf of the Association," and that "according to law, only myself or the Association's treasurer are authorized to accept legal service on behalf of the Association."); Dkt. 13-13 at ¶ 4 (Declaration of Matthew Hachee, stating that he "never authorized or designated Mr. Brown or anyone else at the College to accept legal service on behalf of myself or the Association," that he was "aware of no such authorization or designation issued by anyone else on behalf of the Association"); Dkt. 14-2 at ¶ 12 (Declaration of Melissa Fingar, Esq., Assistant to the President, Human Resources and Organization Development, for MCC, stating that "Mr. Brown is not authorized by law to accept service on behalf of any of the individually named Moving Defendants")).
The summonses specifically state that Mr. Brown was designated to accept service on behalf of "Monroe Community College"—not on behalf of the remaining defendants. Plaintiff offers no evidence indicating that Mr. Brown was in fact authorized to accept service on behalf of them, or that he informed Plaintiff he was authorized to accept service on behalf of them. See Valle v. GDT Enters., Inc. , No. 19-CV-797(SJF)(AKT), 2020 WL 435295, at *4 (E.D.N.Y. Jan. 28, 2020) (finding insufficient service of process where the defendants submitted a sworn affidavit indicating that part-time waitress was not authorized to accept service on behalf of them, and the plaintiff failed to provide any evidence to rebut those assertions or otherwise demonstrate that she was authorized to accept service). Accordingly, the Court finds that Plaintiff has not properly served the individual defendants pursuant to Rule 4(e)(2)(C) or the Faculty Association pursuant to Rule 4(h).
Pursuant to CPLR 308(2), assuming Mr. Brown was a person of suitable age and discretion at the actual place of business of the person to be served, Plaintiff could also serve the individual defendants (Gizzi, Hachee, Dunker, O'Connor, Oldham, and Rotenberg) by mailing them a copy of the summons and complaint. However, Plaintiff does not state that he mailed a copy of those documents to the individual defendants, nor does the record before the Court support that he did so. (See, e.g. , Dkt. 13-9 at ¶ 5 (Declaration of Bethany Gizzi, explaining that "[a]t no time did I ever have a copy of the summons and complaint delivered personally to me, nor was a copy delivered to my residence upon a person of suitable age and discretion residing there. Moreover, I have never received a copy of the summons and complaint by mail. The only way I received the summons and complaint was by retrieving them from the College."); Dkt. 13-13 at ¶ 3 (Declaration of Mathew Hachee, explaining that "[a]t no time did I ever have a copy of the summons and complaint delivered personally to me, nor was a copy delivered to my residence upon a person of suitable age and discretion residing there. Moreover, I have never received a copy of the summons and complaint by mail. The only way I received the summons and complaint was by retrieving them from the College.")). Rather, Plaintiff relies only on the fact that he left the summonses and complaint with Mr. Henry. CPLR 308(2) "requires strict compliance," see Dunham v. Town of Riverhead , No. 19-cv-0389 (DLI) (CLP), 2020 WL 5820157, at *4 (E.D.N.Y. Sept. 30, 2020), and Plaintiff plainly has not complied with all the requirements of that section. Accordingly, the Court concludes that Plaintiff has failed to properly serve the individual defendants.
As to Plaintiff's argument that defendants Gizzi, Hachee, and Rotenberg must have received the summonses because he received communications from them regarding his lawsuit, "[t]he mere fact that [they] had knowledge of [Plaintiff's] lawsuit is insufficient to cure plaintiff's failure to properly effect service." Dorrough v. Harbor Secs., LLC. , No. 99 CV 7589(ILG), 2002 WL 1467745, at *4 n.4 (E.D.N.Y. May 10, 2002) ; see also Valle , 2020 WL 435295, at *4 ("Moreover, ‘the simple fact that [the defendants] obtained a copy of the ... [summons and] complaint against [them] is insufficient for service to be deemed effective under New York law.’ ") (alterations in original) (quoting Gerena v. Korb , 617 F.3d 197, 202 (2d Cir. 2010) ).
Plaintiff has not properly served the Faculty Association or the individual defendants under any other section of Rule 4 or New York state law. Further, these defendants have not waived service of the summonses and complaint. Plaintiff filed his complaint on March 16, 2020 and, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, "[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against the defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). However, "[i]f the plaintiff has failed to effectuate service in accordance with Rule 4(m), a court has the discretion to grant an extension of time to serve the defendant with or without good cause." Hahn v. Office & Pro. Emps. Int'l Union, AFL-CIO , 107 F. Supp. 3d 379, 382 (S.D.N.Y. 2015) (citing Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) ). In light of Plaintiff's pro se status, as well as his apparent efforts to properly serve the summonses and complaint during the COVID-19 pandemic, the potential preclusive impact of a dismissal on at least some of Plaintiff's claims due to the applicable statutes of limitations, and the fact that the defendants who were not properly served had notice of the litigation, the Court exercises its discretion to extend Plaintiff's time to serve the Faculty Association, Bethany Gizzi, Matthew Hachee, Jeffrey Dunker, Matthew O'Connor, Todd Oldham, and William Rotenberg. Plaintiff must effectuate proper service on these defendants on or before April 30, 2021. Further, Plaintiff must file with the Court the proofs of service confirming that he served these defendants by no later than May 14, 2021. If Plaintiff fails to comply with these requirements, his claims against these defendants will be dismissed without prejudice pursuant to Rule 4(m).
The remaining bases for dismissal of Plaintiff's complaint raised by the Faculty Association and the individual defendants are denied without prejudice. In other words, "where, as here, ‘a [c]ourt is asked to rule on a combination of Rule 12 defenses,’ the court should ‘pass on the jurisdictional issues before considering whether a claim is stated in the complaint.’ " Zeballos v. Tan , No. 06 CIV. 1268 (GEL), 2006 WL 1975995, at *5 (S.D.N.Y. July 10, 2006) (quoting Sunrise Indus. Joint Venture v. Ditric Optics, Inc. , 873 F. Supp. 765, 769 (E.D.N.Y. 1995) and Arrowsmith v. United Press Int'l , 320 F.2d 219, 221 (2d Cir. 1963) (en banc)). Because the Court does not have personal jurisdiction over the defendants who were never properly served, and because the Court may never have jurisdiction over them if Plaintiff fails to serve the summonses and complaint, it may ultimately be unnecessary for the Court to address the various arguments raised by these defendants in support of dismissal. See, e.g., Feingold v. Hankin , 269 F. Supp. 2d 268, 270 (S.D.N.Y. 2003) (finding that plaintiff failed to properly serve defendant and deferring further discussion on the merits of plaintiff's claim, until all parties have been properly served); see also Zeballos , 2006 WL 1975995, at *6-7 (where the court denied defendant's motion to dismiss plaintiff's complaint based on improper service and instead extended plaintiff's time to serve, also declining to consider defendant's additional defenses and motion to strike, and denying plaintiff's motion to dismiss counterclaims "as moot, without prejudice to renewal if defendant is properly served and resubmits her counterclaims against plaintiff"). In the event Plaintiff properly serves them, the Faculty Association and the individual defendants may renew their remaining arguments in support of dismissal in any subsequent motion.
II. Plaintiff's Claims Against MCC
A. Legal Standard – Rule 12(b)(6)
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the [pleading], documents attached to the [pleading] as exhibits, and documents incorporated by reference in the [pleading]." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the [claimant]." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the [claimant] pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
"While a [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [claimant]’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the [pleading]’s ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). While the Court is "obliged to construe [pro se ] pleadings liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth in Iqbal and Twombly , see Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009) ("Even after Twombly , though, we remain obligated to construe a pro se complaint liberally.").
B. Plaintiff's Race Discrimination Claims
Plaintiff alleges that he was discriminated against based on his race, including by MCC's failure to employ and promote him. (Dkt. 1 at 3-4). MCC contends that Plaintiff's race discrimination claims must be dismissed because he has failed to allege facts sufficient to establish a reasonable inference of race discrimination under Title VII or the NYSHRL. (Dkt. 14-1 at 13-15).
To establish a prima facie case of race discrimination under Title VII, and consistent with the framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff must prove that: (1) he was within the protected class; (2) he was qualified for the position and was satisfactorily performing his duties; (3) he was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See Terry v. Ashcroft , 336 F.3d 128, 137-38 (2d Cir. 2003). However, "[a]t the pleadings stage of the litigation, [a plaintiff is] ... not required to plead a prima facie case of discrimination as contemplated by the McDonnell Douglas framework." Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 84 (2d Cir. 2015). Accordingly, "to defeat a motion to dismiss ... in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." Id. at 87. "[T]he ‘ultimate issue’ in an employment discrimination case is whether the plaintiff has met h[is] burden of proving that the adverse employment decision was motivated at least in part by an ‘impermissible reason,’ i.e., a discriminatory reason." Id. (internal quotations and citations omitted). "A plaintiff can meet that burden through direct evidence of intent to discriminate ..., or by indirectly showing circumstances giving rise to an inference of discrimination." Id.
Plaintiff's complaint is not the model of clarity but, viewing his allegations in the light most favorable to him, the Court concludes that he has plausibly stated a claim for race discrimination. Plaintiff alleges that (1) he was not permitted to teach certain classes, including the Intro to Linux class, during certain semesters (id. at 10), (2) he was not notified or selected for two full-time teaching positions (id. at 8), and (3) the courses he taught were moved to weekdays and therefore he was unable to teach them (id. at 10). Plaintiff further alleges that between 2016 and 2019, Defendants hired several individuals into full-time teaching positions, including a white woman, an Asian man, and a white man, and Plaintiff was not notified of those employment postings. (See Dkt. 1 at 7 ("There were a number of attempts to determine my schedule, not to benefit me, because opportunities never materialized into additional courses for my adjunct teaching load, or notification of at least two full-time positions."); id. at 8 (MCC hired a white woman, an Asian man, and a white man for full-time positions, and Plaintiff was not notified of the positions)); see also Brodt v. City of New York, 4 F. Supp. 3d 562, 570 (S.D.N.Y. 2014) ("In a failure-to-promote claim, an inference of discrimination also may be raised when a plaintiff plausibly alleges that similarly situated employees outside of plaintiff's protected class received more favorable treatment."). Further, Plaintiff alleges that, despite high demand for his regular classes, they were suddenly moved to weekdays when he was unable to teach, and he was not given a valid reason for why his classes were moved.
At this stage of the proceedings, Plaintiff's allegations are sufficient to proceed with his claim of race discrimination. "[A]t the pleadings stage of an employment discrimination case, a plaintiff has a ‘minimal burden’ of alleging facts ‘suggesting an inference of discriminatory motivation.’ " Vega , 801 F.3d at 85 (quoting Littlejohn v. City of New York , 795 F.3d 297, 310 (2d Cir. 2015) ). Plaintiff "need only plausibly allege facts that provide at least minimal support for the proposition that the employer was motivated by discriminatory intent." Id. at 86 (internal quotations and citation omitted).
Plaintiff's allegations as to discriminatory motive are admittedly thin. However, construing Plaintiff's complaint in the light most favorable to him, he has alleged that his supervisors—all of whom were white—gave certain benefits, including promotions to fulltime teaching positions, to white or non-African American individuals, which they did not extend to him, and that they failed to offer any reasonable explanation for why his regular classes were moved to a time during which he was unable to teach. See Littlejohn , 795 F.3d at 312 (plaintiff may show circumstances giving rise to an inference of discrimination by alleging the more favorable treatment of employees not in the protected group). These allegations distinguish this case from the ones relied upon by MCC, such as Patane v. Clark , 508 F.3d 106 (2d Cir. 2007), where the plaintiff failed to "set forth any factual circumstances from which a gender-based motivation for such an action might be inferred," including that she failed to allege, for example, that "male employees were given preferential treatment when compared to Plaintiff." Id. at 112. Again, Plaintiff does allege that individuals of a different race were given preferential treatment when compared to his treatment. And while MCC relies upon the fact that Plaintiff alleges certain classes were assigned to another individual of the same race (Dkt. 14-1 at 14), at this stage of the proceedings that is not determinative of whether Plaintiff may proceed with his claim, given the other allegations in the complaint.
While Plaintiff's pro se filing is not the model of clarity, his allegations of discrimination are not entirely conclusory; for example, he has alleged that individuals outside of his protected group were treated more favorably than he was, including that they were considered for full-time positions, while he was not informed of or considered for those positions. Considering Plaintiff's pro se status and viewing his allegations in the light most favorable to him at this early stage of the case, the Court finds that Plaintiff has adequately stated a claim for race discrimination in violation of Title VII, as well as the NYSHRL. Accordingly, MCC's motion to dismiss Plaintiff's race discrimination claims is denied.
C. Plaintiff's Retaliation Claims
The Court next addresses Plaintiff's retaliation claims. (Dkt. 1 at 4). MCC contends that Plaintiff's retaliation claims should be dismissed because he has failed to allege facts sufficient to establish the causal connection required for a retaliation claim. (Dkt. 14-1 at 15-17).
"[F]or a retaliation claim to survive a motion for judgment on the pleadings or a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or took an adverse employment action—against him, (2) because he has opposed any unlawful employment practice." Duplan v. City of New York , 888 F.3d 612, 625 (2d Cir. 2018) (quoting Vega , 801 F.3d at 90 ). The protected activity must be the but-for cause of the alleged adverse action by the employer, see Univ. of Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 362, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ; in other words, the plaintiff must plausibly allege that "the adverse action would not have occurred in the absence of the retaliatory motive," Duplan , 888 F.3d at 625.
"Although the Court of Appeals has not held explicitly that but-for causation governs NYSHRL claims, it has implicitly applied that standard on several occasions." Maynard v. Montefiore Med. Ctr. , No. 18-CV-8877 (LAP), 2021 WL 396700, at *6 (S.D.N.Y. Feb. 4, 2021) (citing Smith v. N.Y. & Presbyterian Hosp. , 440 F. Supp. 3d 303, 340 n.22 (S.D.N.Y. 2020) (collecting cases)).
Although MCC identifies only the December 21, 2018 meeting as protected activity (see Dkt. 14-1 at 16), Plaintiff alleges two instances when he engaged in protected activity. Specifically, on December 21, 2018, Plaintiff attended a meeting with Fingar, Collins, and Taine to discuss his discrimination complaint. (Dkt. 1 at 10). Further, on September 25, 2019, Plaintiff filed an EEOC charge complaining of discrimination. (See id. at 3). A plaintiff may indirectly establish a causal connection to support a retaliation claim "by showing that the protected activity was closely followed in time by the adverse employment action." Gorzynski v. JetBlue Airways Corp. , 596 F.3d 93, 110 (2nd Cir. 2010) (internal quotations and citation omitted). The Second Circuit "has not drawn a bright line defining ... the outer limits beyond which a temporal relationship is too attenuated to establish causation," but it has "previously held that five months is not too long to find the causal relationship." Gorzynski , 596 F.3d at 100. The inquiry "is dependent on the relevant circumstances of the case." Conforti v. Sunbelt Rentals, Inc. , 201 F. Supp. 3d 278, 302 (E.D.N.Y. 2016). For example, a longer temporal gap may be "less salient" when the adverse action occurs at "the first opportunity that Defendants had to retaliate against Plaintiff after h[is] most recent complaint." Haner v. Cnty. of Niagara, New York , No. 19-CV-754-LJV-HBS, 2021 WL 230874, at *5 (W.D.N.Y. Jan. 22, 2021) (citing Pediford-Aziz v. City of New York , 170 F. Supp. 3d 480, 486 (E.D.N.Y. 2016) ; Cronin v. St. Lawrence , No. 08-CV-6346, 2009 WL 2391861, at *5 (S.D.N.Y. Aug. 5, 2009) (collecting cases)).
Both alleged adverse actions occurred comfortably within the above-described timeframe. The first alleged adverse action following the December 21, 2018 meeting occurred between three to four months later when, on April 5, 2019, Dunker advised Plaintiff that he could not honor his course request for Fall 2019 because Plaintiff had submitted his availability form past the deadline. (Dkt. 1 at 11). The alleged adverse action following Plaintiff's filing the September 25, 2019 EEOC charge—that on October 15, 2019, Dunker assigned the Intro to Linux course to another adjunct in advance of the scheduling deadline—occurred less than one month after Plaintiff filed his EEOC charge. (Id. ). Both alleged adverse actions occurred when Plaintiff was assigned courses for the 2019 school year, which followed his initial complaint of discrimination in late December 2018.
In addressing the latter alleged adverse action, the Court notes that, in his complaint, Plaintiff alleges that his EEOC charge was filed on September 25, 2019. (Dkt. 1 at 3). However, MCC has submitted a copy of the EEOC charge filed by Plaintiff, which indicates that he filed it on December 7, 2019. (See Dkt. 14-3 (Charge of Discrimination noting Plaintiff's digital signature on "12-07-2019")). Plaintiff does not address this discrepancy in his response papers; however, attached to Plaintiff's complaint is letter correspondence dated December 19, 2019 from John E. Thompson, Jr., Director of the EEOC's Buffalo Office, enclosing Plaintiff's Right to Sue letter. (See Dkt. 1 at 13-14). The letter references a telephone call with Plaintiff regarding his charge of discrimination, which apparently occurred on December 3, 2019 (see id. at 13 ("I completed a telephone interview with you on December 3, 2019. An assessment of your allegations has been completed."))—which suggests that Plaintiff filed his charge of discrimination at least before December 3, 2019.
Accordingly, the Court concludes that, at this stage of the proceedings, Plaintiff has stated a claim for retaliation based on his internal complaint to MCC and his charge of discrimination submitted to the EEOC. MCC's motion to dismiss Plaintiff's retaliation claims under Title VII and the NYSHRL is denied.
D. Plaintiff's Harassment/Hostile Work Environment Claim
Plaintiff also asserts a claim for harassment against MCC. (Dkt. 1 at 7). The Court construes this as a hostile work environment claim. MCC argues that Plaintiff failed to exhaust his administrative remedies because his EEOC charge does not include any reference to harassment, and furthermore the allegations in the complaint do not plausibly allege a hostile work environment claim. (Dkt. 14-1 at 17-21). In response, Plaintiff argues that his harassment claim is "based on Jeffrey Dunker's history of denying [him] classes," as well as that Dunker taunted him when Plaintiff asked why he had not assigned the Intro to Cybersecurity class for Spring 2020 and "set forth a number of verification methods ... to ensure [Plaintiff's] availability," and that these actions caused Plaintiff undue stress and mental anguish. (See Dkt. 20 at 4).
To state a claim for a hostile work environment claim under Title VII, "a plaintiff must allege facts to plausibly ‘show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment.’ " Erno v. N.Y.S. Office of Info. Tech. Servs. , No. 19-CV-1457, 2020 WL 2736563, at *7 (N.D.N.Y. May 26, 2020) (quoting Gorzynski , 596 F.3d at 102 ). In considering a hostile work environment claim, the Court must "look to the record as a whole and assess the totality of the circumstances," and "[g]enerally, unless an incident of harassment is sufficiently severe, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Gorzynski , 596 F.3d at 102 (internal quotations and citations omitted). The Court should consider "a variety of factors 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[.]’ " Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ). "Ultimately, to avoid dismissal under FRCP 12(b)(6), a plaintiff need only plead facts sufficient to support the conclusion that she was faced with ‘harassment ... of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse,’ and ‘[the Second Circuit] ha[s] repeatedly cautioned against setting the bar too high’ in this context." Patane , 508 F.3d at 113 (quoting Terry , 336 F.3d at 148 ).
Historically hostile work environment claims under Title VII and the NYSHRL were evaluated by the same standard. Summa v. Hofstra Univ. , 708 F.3d 115, 123-24 (2d Cir. 2013). However, "[i]n August 2019, the NYSHRL was amended to eliminate the ‘severe or pervasive’ standard for such claims." Farmer v. Shake Shack Enterprises, LLC , 473 F. Supp. 3d 309, 334 n.9 (S.D.N.Y. 2020). Here, many of the events upon which Plaintiff relies pre-date the amendment to the NYSHRL, but in any event, Plaintiff has not plausibly alleged a hostile work environment claim even under the lower standard now set forth in the NYSHRL.
Construing Plaintiff's complaint in the light most favorable to him, the Court finds that he has failed to state a hostile work environment claim. While Plaintiff alleges that his complaints to his supervisors went ignored, that Defendants engaged in "trickery" to replace him, and that he felt frustrated, these facts do not plausibly allege a hostile work environment claim. While Plaintiff vaguely alleges that he was "taunted" on one occasion by Dunker, he does not allege that he was subject to any racist jokes, derogatory comments, or other statements relating to his race. Similarly, Plaintiff does not allege that he experienced any physical harassment or threatening conduct. See Gong v. City Univ. of New York , No. 20-1341, 846 F. App'x 6, 8, (2d Cir. Feb. 8, 2021) (affirming district court's dismissal of plaintiff's hostile work environment claim pursuant to Rule 12(b)(6), because her allegations were "too mild and ‘episodic’ " to support her claim, and they lacked any racial overtone). Accordingly, the Court concludes that Plaintiff has failed to adequately allege a hostile work environment claim, and therefore his harassment/hostile work environment claim against MCC is dismissed.
E. Plaintiff's Breach of Contract Claim
Finally, Plaintiff asserts a claim for breach of contract against MCC. (Dkt. 1 at 7). While the College Defendants argue in their motion to dismiss that Plaintiff cannot maintain a breach of contract claim against the individual defendants (that is, Dunker, O'Connor, Oldham, and Rotenberg) because they are not parties to the Collective Bargaining Agreement (Dkt. 14-1 at 25-26 ("Plaintiff cannot maintain a breach of contract claim against the individual Moving Defendants because they were not parties to the CBA")), they do not argue that Plaintiff's breach of contact claim should be dismissed as to MCC. Accordingly, the Court will allow Plaintiff's breach of contract claim against MCC to proceed.
CONCLUSION
For the foregoing reasons, the motion to dismiss filed by the Association Defendants (Dkt. 13) is denied, and the motion to dismiss filed by the College Defendants (Dkt. 14) is granted in part and denied in part. Specifically, the Court finds that Plaintiff has failed to properly serve both the Association Defendants (the Faculty Association, Bethany Gizzi, and Matthew Hachee) and the individual College Defendants (Jeffrey Dunker, Matthew O'Connor, Todd Oldham, and William Rotenberg). However, rather than dismiss Plaintiff's claims against them, pursuant to Rule 4(m), the Court extends Plaintiff's time to serve the summons and complaint on each of these defendants until April 30, 2021. Plaintiff must file with the Court the proofs of service confirming that he served these defendants by no later than May 14, 2021. If Plaintiff fails to comply with these deadlines, his claims against these defendants will be dismissed without prejudice pursuant to Rule 4(m). The remaining arguments raised by those defendants are denied without prejudice as premature, but with leave to renew should Plaintiff serve them. With regard to defendant MCC, the Court denies the motion to dismiss Plaintiff's race discrimination, retaliation, and breach of contract claims, but grants the motion to the extent that Plaintiff's harassment/hostile work environment claim is dismissed.
SO ORDERED.