Opinion
6:20-CV-06156 EAW
2022-01-07
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, Chief Judge INTRODUCTION
Pro se 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 Jeffrey Dunker, Matthew O'Connor, Todd Oldham, and William Rotenberg (collectively, the "Individual College Defendants"), to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim, except for Plaintiff's NYSHRL claims asserted against Dunker. (Dkt. 27; see also Dkt. 27-1 at 7, 11-13, 15). Also before the Court is a motion filed by defendants the 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) and (b)(6), for lack of subject matter jurisdiction and failure to state a claim. (Dkt. 29; Dkt. 30-3).
For the reasons explained below, the motion to dismiss filed by the Individual College Defendants (Dkt. 27) is granted. Plaintiff's claims against O'Connor, Oldham, and Rotenberg are dismissed. Plaintiff's claims against Dunker are dismissed with the exception of Plaintiff's NYSHRL claims, which may proceed against Dunker at this stage of the case. Further, the motion to dismiss filed by the Association Defendants (Dkt. 29) is granted. Plaintiff's claims against the Faculty Association, Hachee, and Gizzi are therefore dismissed.
BACKGROUND
On March 24, 2021, the Court issued a Decision and Order, denying a prior motion to dismiss filed by the Association Defendants (Dkt. 13), and granting in part and denying in part a prior motion to dismiss filed by the Individual College Defendants (Dkt. 14). (See Dkt. 24 the "March 24, 2021 Decision and Order"). Specifically, the Court found that Plaintiff failed to properly serve both the Association Defendants and the Individual College Defendants, but pursuant to Federal Rule of Civil Procedure 4(m) exercised its discretion to extend Plaintiff's time to serve the summons and complaint on those defendants until April 30, 2021. (Id. ). The remaining arguments raised by those defendants were denied without prejudice as premature, but with leave to renew should Plaintiff successfully effectuate service. (Id. ). With regard to defendant Monroe Community College ("MCC"), the Court denied the motion to dismiss Plaintiff's race discrimination, retaliation, and breach of contract claims, but dismissed Plaintiff's harassment/hostile work environment claim. (Id. ). Thereafter, Plaintiff served defendants Gizzi, Dunker, O'Connor, Hachee, Oldham, and Rotenberg. (See Dkt. 33). By virtue of the March 24, 2021 Decision and Order, the Court assumes the parties’ familiarly with the factual background of Plaintiff's claims and procedural history of the case.
DISCUSSION
I. Legal Standard
"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 complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." 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 plaintiff." 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 plaintiff 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 plaintiff 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 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff'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 complaint'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.").
II. Title VII Claims
A. The Individual Defendants (Dunker, O'Connor, Oldham, Rotenberg, Hachee, and Gizzi)
Both the Association Defendants and the Individual College Defendants argue that Plaintiff's Title VII claims brought against the individual defendants must be dismissed because there is no individual liability under Title VII. (Dkt. 27-1 at 10; Dkt. 30-3 at 14). The Court agrees. It is well-settled that there is no individual liability under Title VII. See Reynolds v. Barrett , 685 F.3d 193, 202 (2d Cir. 2012) ("Employers, not individuals, are liable under Title VII."); Tomka v. Seiler Corp. , 66 F.3d 1295, 1317 (2d Cir. 1995) (recognizing that an employer's agent may not be held individually liable under Title VII and dismissing the plaintiff's claims against individual defendants), abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Accordingly, Plaintiff's Title VII claims asserted against each of the individual defendants—Dunker, O'Connor, Oldham, Rotenberg, Hachee, and Gizzi—are dismissed with prejudice.
B. The Faculty Association
The Faculty Association contends that Plaintiff failed to include allegations against it in his EEOC charge and therefore his Title VII claims were not properly exhausted and must be dismissed. (Dkt. 30-3 at 11). In response, Plaintiff makes no effort to dispute these contentions as set forth by the Faculty Association, instead stating only that he relies on the March 24, 2021 Decision and Order. (Dkt. 36 at 1-2). However, the Court did not address whether Plaintiff properly exhausted his claims against the Faculty Association in its prior decision.
Individuals may bring Title VII claims in federal court only after filing a timely charge with the EEOC and receiving an EEOC right-to-sue letter. 42 U.S.C. § 2000e-5(e), (f) ; see also Legnani v. Alitalia Linee Aeree Italiane, S.P.A. , 274 F.3d 683, 686 (2d Cir. 2001). Administrative exhaustion is an essential element of Title VII's statutory scheme, the purpose of which is to avoid unnecessary judicial action by the federal courts by "[giving] the administrative agency the opportunity to investigate, mediate, and take remedial action." Stewart v. United States Immigr. & Naturalization Serv. , 762 F.2d 193, 198 (2d Cir. 1985). The Second Circuit has held that exhaustion "is a precondition to bringing a Title VII claim in federal court rather than a jurisdictional requirement." Francis v. City of New York , 235 F.3d 763, 768 (2d Cir. 2000) (citation omitted). Courts have explained that "[t]he significance of this distinction is that insofar as the district court's subject matter jurisdiction does not depend on the exhaustion of administrative remedies, the requirement is theoretically ‘subject to waiver, estoppel, and equitable tolling.’ " O'Neal v. State Univ. of N.Y. , No. CV-01-7802 (DGT), 2003 WL 1524664, at *4 (E.D.N.Y. 2003) (quoting Francis , 235 F.3d at 767 ).
Plaintiff alleges that he filed his charge of discrimination with the EEOC on September 25, 2019. (Dkt. 1 at 3). Although Plaintiff has not attached a copy of the charge to his complaint, the Faculty Association has provided a copy of the charge in connection with its motion to dismiss. (See Dkt. 30-2 at 20-22). The charge does not specifically name the Faculty Association—rather, it names only MCC—nor does the charge include any allegations against the Faculty Association. It is undisputed that the Faculty Association never received notice of Plaintiff's charge of discrimination, nor was it asked to respond to the charge. (Id. at 2 at ¶ 8; see also id. at 20-22, 24-25; Dkt. 30-1 at ¶ 3).
Although Plaintiff did not attach a copy of the EEOC charge to his complaint, Plaintiff specifically references and relies on the EEOC charge in his complaint, and therefore it is incorporated by reference into the complaint, and the Court may consider it in connection with the motion to dismiss.
Because EEOC charges "generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements," courts recognize an "identity of interest" exception to the exhaustion requirement. Vital v. Interfaith Med. Ctr. , 168 F.3d 615, 619 (2d Cir. 1999) (quoting Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991) ). In Vital , the court dismissed the plaintiff's claim against his union based on his failure to file an administrative charge against the union. Id. at 619. As in the present case, the plaintiff in Vital had named only his employer, and not the union, in his EEOC charge, and the EEOC letter issued to the plaintiff did not name the union. Id. The court explained that "[a] complainant must file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court under Title VII," and further concluded that there was no "identity of interest" between the employer and the union. Id. at 619-20. See also Saidin v. New York City Dep't of Educ. , 498 F. Supp. 2d 683, 688-89 (S.D.N.Y. 2007) (dismissing claim against union where the plaintiff could not produce a right-to-sue letter as to the union, and explaining that although the plaintiff named the union as a party in the EEOC charge, the charge contained no allegations against the union and there was also no clear identity of interest between the plaintiff's employer and the union), reconsideration denied , 245 F.R.D. 175 (S.D.N.Y. 2007) ; Schaefer v. Erie Cnty. Dep't of Soc. Servs. , 82 F. Supp. 2d 114, 116-17 (W.D.N.Y. 2000) (considering identity of interest exception and dismissing complaint against union where it was "clear from the pleadings that plaintiff failed to file an administrative complaint against CSEA Local 815, and that the EEOC did not mention Local 815 or any union officials in its Determination and Notice of Right to Sue").
The Court considers four factors in determining whether there is an identity of interest between MCC and the Faculty Association:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.
Vital, 168 F.3d at 619 (alteration in original) (citation omitted).
The Court has considered each of these factors and concludes that there is no identity of interest between the Faculty Association and MCC. First, the allegations in Plaintiff's complaint demonstrate that he was aware of the Faculty Association's role prior to filing his EEOC charge, including that he had knowledge of the nature of the Faculty Association contract and met with Faculty Association members Hachee and Gizzi. (See, e.g. , Dkt. 1 at 10 (describing meeting with Faculty Association representatives in December 2018); id. (describing conversation with O'Connor, wherein he declined to discuss contractual issues with Plaintiff but referred him to another individual to meet with the Faculty Association)). Likewise, the interests of MCC and the Faculty Association are not so similar that it would be unnecessary to include the Faculty Association in the EEOC proceedings. See, e.g., Bryant v. Delphi Automotive Sys. Corp. , No. 08-CV-6215, 2009 WL 1035072 at *2 (W.D.N.Y. Apr. 17, 2009) ("The Second Circuit ... has recognized that labor unions and employers do not have an identity of interest such that it could be deemed that a labor union had notice of an administrative complaint filed against an employer."). In his response papers, Plaintiff contends that the relationship between MCC and the Faculty Association is "unnatural" and that it has offices on MCC's premises, and he also argues that part of the "remedy" for the case "should include moving the Faculty Association to another building other than property owned or controlled by MCC." (See Dkt. 36 at 2). However, the location of the Faculty Association's office is not relevant to the Court's determination of whether there is an identity of interest between the Faculty Association and MCC, and there are no allegations in Plaintiff's complaint suggesting that the interests of the Faculty Association and MCC are so aligned that it would be unnecessary to include them in the EEOC proceedings, or that Plaintiff misunderstood the function of the Faculty Association.
The Faculty Association's absence from the EEOC proceedings, which were commenced in 2019, have prejudiced it, given that it was not provided notice of the EEOC charge and did not have the opportunity to respond to it. Finally, Plaintiff does not allege that the Faculty Association represented to Plaintiff that its relationship with him should be through MCC. Upon consideration of these factors, the Court concludes that there is no identity of interest between the Faculty Association and MCC such that Plaintiff is excused from naming the Faculty Association in his EEOC charge. Accordingly, Plaintiff's Title VII claims against the Faculty Association are dismissed with prejudice, based on his failure to exhaust administrative remedies.
In his response papers, Plaintiff states that on March 9, 2020, he filed a PERB complaint "to address the fact that the Association Defendants failed in their duty to represent me." (Dkt. 36 at 3). While Plaintiff may have filed a complaint with PERB, that complaint is not relevant to or a substitute for his EEOC charge.
III. NYSHRL Claims
Having addressed Plaintiff's Title VII claims, the Court now turns to Plaintiff's discrimination claims brought pursuant to the NYSHRL. To establish a prima facie case of race discrimination, 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.
As explained above, a plaintiff may not assert a Title VII claim against an individual defendant; however, under the NYSHRL an individual may be liable for employment discrimination in two ways. Sutera v. Rochester City Sch. Dist., No. 11-CV-6057-FPG, 2014 WL 4245957, at *5 (W.D.N.Y. Aug. 26, 2014). First, an individual can be liable for discrimination under New York Executive Law § 296(1) if the individual qualifies as an employer, that is, one who has "any ownership interest or any power to do more than carry out personnel decisions made by others." Id. (quoting Patrowich v. Chem. Bank, 63 N.Y.2d 541, 543-44, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984) ). Second, an individual may be liable under New York Executive Law § 296(6) as an aider or abettor of the discriminatory conduct. Id. Section 296(6) provides that it is "an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." N.Y. Exec. Law. § 296(6). "[A]n individual defendant may be held liable under the aiding and abetting provision of the NYSHRL if he actually participates in the conduct giving rise to a discrimination claim." Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011) (citing Tomka, 66 F.3d at 1313 ); Patrick v. Garlick, 66 F. Supp. 3d 325, 332 (W.D.N.Y. 2014) (denying motion to dismiss NYSHRL claims against supervisor because plaintiff adequately alleged that the supervisor actively aided and abetted in discrimination and retaliation, and collecting cases).
A. The Association Defendants (The Faculty Association, Hachee, and Gizzi)
Although Plaintiff has failed to exhaust his administrative remedies against the Faculty Association pursuant to Title VII, "there is no exhaustion requirement under the NYSHRL," see Mitchell-Miranda v. City of New York , No. 08 Civ. 4031(JGK), 2011 WL 1210202, at *10 n.3 (S.D.N.Y. Mar. 24, 2011), and therefore the Court considers whether Plaintiff has stated a claim against the Faculty Association for violation of the NYSHRL.
"It has been uniformly held that, in order to make [a] discrimination claim against the Union, [a plaintiff] must first establish that the [a union defendant] breached [its] duty of fair representation." Bryant v. Verizon Commc'ns, Inc. , 550 F. Supp. 2d 513, 528 (S.D.N.Y. 2008) ; McIntyre v. Longwood Cent. Sch. Dist. , 380 F. App'x 44, 49 (2d Cir. 2010) (to state claim for discrimination against labor organization, a plaintiff must plausibly allege that the union breached its duty of fair representation, and union's actions were motivated by discriminatory animus).
Plaintiff alleges that the Faculty Association discriminated against him because it did not adequately represent him in connection with his discrimination complaint against MCC. (See Dkt. 1 at 10-12; see also Dkt. 36 at 1 (arguing that the Faculty Association was "part of the all-white chain of command with institutional and structural power and control," "saw [him] as inferior and not worthy of their representation," and that their "do nothing approach," was part of "their overall strategy to pick and choose who they want to represent")). Even considering Plaintiff's minimal burden at this stage of alleging facts plausibly suggesting an inference of discrimination, he has failed meet this burden with respect to the Association Defendants.
The complaint is devoid of allegations suggesting that Plaintiff was treated differently by the Association Defendants based on his race, or because he engaged in protected activity. For example, the complaint details an email sent by Hachee stating that the Faculty Association would not "stake any position" as to Plaintiff's discrimination complaint against the College but rather would "advise him privately." (Dkt. 1 at 10). Plaintiff also alleges that he met with Gizzi to discuss his grievance and that she emailed him to inform him of what she was doing to follow-up, but she did not respond to a later email he sent asking about a timeframe for the Faculty Association's investigation. (Id. at 10-11). These allegations fail to plausibly suggest the Faculty Association's alleged deficient representation of Plaintiff was motivated by discriminatory animus. For example, Plaintiff does not allege that the Association Defendants treated him differently than others outside his protected class. Nor does the complaint contain allegations suggesting that the Association Defendants engaged in making racist statements or derogatory remarks to Plaintiff, or that they unlawfully retaliated against Plaintiff. Rather, Plaintiff makes only conclusory statements that the Faculty Association was "implicit in the discrimination" perpetrated by MCC. (See Dkt. 1 at 8). These types of cursory and conclusory allegations are not sufficient to withstand a motion to dismiss. See Boza-Meade v. Rochester Housing Auth. , 170 F. Supp. 3d 535, 554 (W.D.N.Y. 2016) (dismissing plaintiff's complaints on the basis that she failed to plausibly plead a minimal inference of discriminatory motivation, where her claims were supported by only "her own conclusory assertions," and noting that she failed to provide "any allegations that are racially-discriminatory on their face, [or] any allegations that would raise the logical inference that she was being discriminated against; i.e., allegations that other similarly-situated employees were treated better than her."). Accordingly, Plaintiff's NYSHRL claims against the Association Defendants are dismissed without prejudice.
A pro se plaintiff generally is entitled to leave to replead a claim that is dismissed for failure to plausibly allege a factual basis for that claim. See Thomas v. N.Y.C. Dep't of Educ. , 938 F. Supp. 2d 314, 329 (E.D.N.Y. 2013) (explaining, in evaluating motion to dismiss, that "[i]f a liberal reading of the complaint ‘gives any indication that a valid claim might be stated,’ the court must grant leave to amend the complaint" (citing Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000) ; Gomez v. USAA Fed. Sav. Bank , 171 F.3d 794, 795 (2d Cir. 1999) ). However, the Court declines to sua sponte grant leave to replead the NYSHRL claims against the Association Defendants because, in responding to Defendants’ motions to dismiss, Plaintiff has had two opportunities to articulate the factual basis for these claims and to argue why they should not be dismissed, but on each occasion, he has failed to do so. Nonetheless, as noted, the Court has entered its dismissal of these claims without prejudice because the Court cannot state that under no circumstance would Plaintiff be able to assert a NYSHRL claim against the Association Defendants.
B. The Individual College Defendants (Dunker, O'Connor, Oldham, and Rotenberg)
As explained in the March 24, 2021 Decision and Order, Plaintiff alleges both a race discrimination claim and a retaliation claim, which the Court has already permitted to proceed against MCC. (Dkt. 24 at 19, 22). The Individual College Defendants contend that Plaintiff's NYSHRL claims should be dismissed, except as against defendant Dunker. (Dkt. 27-1 at 11; Dkt. 30-3 at 15). For the reasons set forth below, the Court agrees.
1. Race Discrimination Claim
In support of his discrimination claim, Plaintiff alleges: (1) he was not permitted to teach certain classes, including the Intro to Linux class, during certain semesters (Dkt. 1 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, MCC 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 id. 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)). 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.
Plaintiff's claims against Dunker, who Plaintiff alleges made personnel decisions affecting his position teaching courses at MCC and therefore was personally involved in adverse actions taken against him, may proceed at this stage of the litigation. Again, no motion to dismiss is directed to these claims. Plaintiff alleges that Dunker prevented him from teaching certain classes, tried to undermine his schedule, and failed to honor his course requests. (See, e.g., Dkt. 1 at 7 (Plaintiff's "initial concern" occurred when defendant Dunker, the ICT department chair, informed him that the Saturday courses taught by Plaintiff would be moved to weekdays); id. at 10 (Dunker failed to inform Plaintiff that an "Open House Lab" was scheduled during the time Plaintiff was scheduled to teach); id. at 11 (on April 5, 2019, Dunker advised Plaintiff that he could not honor his course request for Fall 2019); id. (Dunker assigned Intro to Linux course, which Plaintiff wanted to teach, in advance of the October 16th deadline and in violation of his own department procedures)).
As to the remaining individual defendants, Plaintiff alleges that he communicated with them regarding either his course assignments or his complaints of discrimination, and he believed their responses were inadequate. For example, Plaintiff alleges that Rotenberg emailed him on two occasions inquiring as to his schedule. (Id. at 9). Plaintiff also received an email from O'Connor, referring him to Kimberly Collins to discuss the Faculty Association contract. (Id. at 10). As to Oldham, Plaintiff alleges that Dunker, Rotenberg, and O'Connor report to him. (Id. at 12). These allegations do not suggest that these individuals aided or abetted any discrimination allegedly perpetrated by Dunker or MCC, that they had any part in the decisions to deny Plaintiff employment, or that they had the power to affect personnel decisions as they applied to Plaintiff. Cf. Patrick , 66 F. Supp. 3d at 332 (plaintiffs stated claim for violation of NYSHRL against their supervisor, who was their "sole harasser," and therefore actively aided and abetted in discrimination and retaliation). Accordingly, Plaintiff's discrimination claims brought against defendants O'Connor, Oldham, and Rotenberg are dismissed without prejudice, but his discrimination claim brought pursuant to the NYSHRL against defendant Dunker may proceed at this stage of the case.
For the same reason that the NYSHRL claims against the Association Defendants are dismissed without prejudice and without the Court sua sponte granting leave to replead, the NYSHRL discrimination claims against defendant O'Connor, Oldham, and Rotenberg are handled in the same manner.
2. Retaliation Claim
"[F]or a retaliation claim to survive ... 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)).
As explained in the March 24, 2021 Decision and Order, Plaintiff alleges two instances when he engaged in protected activity. 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). The 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. (Id. 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.
Like his disparate treatment claim, Plaintiff's allegations relating to his retaliation claim involve specific actions taken by Dunker, who was responsible for making personnel decisions pertaining to Plaintiff. For example, Plaintiff alleges that Dunker failed to honor Plaintiff's course request for Fall 2019 and assigned the Intro to Linux course to another adjunct in advance of the scheduling deadline, both of which occurred following protected activity taken by Plaintiff. However, as to Plaintiff's retaliation claim against O'Connor, Oldham, and Rotenberg, none of Plaintiff's allegations involve retaliatory conduct taken by these individuals, and Plaintiff's allegations do not suggest that they had the ability to make personnel decisions affecting Plaintiff. Accordingly, Plaintiff's retaliation claims asserted against O'Connor, Oldham, and Rotenberg are dismissed without prejudice, but his retaliation claim against Dunker may proceed at this stage of the case.
For the reasons previously articulated, the Court declines to sua sponte grant leave to replead, but the dismissal, as noted, is without prejudice.
3. Harassment/Hostile Work Environment Claims
The Court previously dismissed Plaintiff's hostile work environment claim against MCC in the March 24, 2021 Decision and Order. (See Dkt. 24 at 25-26). For the reasons previously articulated by the Court in that decision, the Court also concludes that Plaintiff has failed to state a hostile work environment claim against the Individual College Defendants. 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. Further, Plaintiff does not allege that he was subject to any racist jokes, derogatory comments, or other statements relating to his race, or that he experienced any physical harassment or threatening conduct. Accordingly, the Court likewise concludes that Plaintiff has failed to adequately allege a hostile work environment claim under the NYSHRL against the Individual College Defendants and any such claims are dismissed without prejudice.
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.
As explained above, the Court previously dismissed Plaintiff's hostile work environment claim against MCC based on his failure to plausibly allege facts supporting any such claim. (Dkt. 24 at 25-26). To clarify, the Court's dismissal of that claim brought pursuant to Title VII against MCC is with prejudice because, as argued by MCC in connection with its motion to dismiss, Plaintiff failed to exhaust these claims by including them in his EEOC charge. (See Dkt. 14-1 at 18, 19-21). Plaintiff's EEOC charge states only that in the Fall of 2018, he was asked to provide his course material to another adjunct professor, that he lodged an internal discrimination complaint in November 2018, and that in retaliation, he was not assigned any classes to teach. (See Dkt. 27-3). The Second Circuit recognizes three situations in which claims not raised in an EEOC charge are "reasonably related" to the allegations in the EEOC charge and therefore may be brought in federal court: (1) "where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination"; (2) "where the complaint is one alleging retaliation by an employer against an employee for filing an EEOC charge"; and (3) "where the complaint alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Terry v. Ashcroft , 336 F.3d 128, 151 (2d Cir. 2003) (internal quotations and citation omitted). Plaintiff's hostile work environment claim does not fit into any of these categories, and therefore the Court concludes that it is not "reasonably related" to the claims asserted in the EEOC charge, which contains no allegations even remotely suggesting that Plaintiff was subject to a hostile work environment or any other form of harassment. See, e.g., Lester v. Mt. Pleasant Cottage Union Free Sch. Dist. , No. 19-CV-5247 (KMK), 2020 WL 3618969, at *6 (S.D.N.Y. July 2, 2020) (plaintiff barred from bringing hostile work environment claim where he "offered no factual allegations in his NYSDHR Complaint to suggest that harassment based on his disability was occurring," and "made no mention of any demeaning comment or gesture at all, much less ‘repeated conduct’ "); Ghose v. Century 21, Inc. , 108 F. Supp. 2d 373, 376 (S.D.N.Y. 2000) (dismissing hostile work environment and retaliation claims not alleged in the plaintiff's original filing with the EEOC, which charged only racial and national origin discrimination), aff'd , 12 F. App'x 52 (2d Cir. 2001). However, the Court's dismissal of Plaintiff's hostile work environment claim brought pursuant to the NYSHRL against MCC, like the dismissal of any such claim against the other defendants, is without prejudice.
IV. Breach of Contract Claims
A. The Individual College Defendants
The Individual College Defendants contend that Plaintiff cannot maintain a breach of contract claim against them because they are not parties to the collective bargaining agreement (hereinafter, the "CBA"). (Dkt. 27-1 at 14). In support of this argument, the Individual College Defendants have submitted a copy of the contract with their motion papers. (See Dkt. 27-6). The Court has reviewed the contract, which specifically states that it is "between The Faculty Association of Monroe Community College and Monroe Community College Board of Trustees." Because none of the individual defendants are parties to the contract Plaintiff contends was breached, the breach of contract claim against them must fail. See Staskowski v. Cnty. of Nassau , No. CV 05-5984 (SJF)(WDW), 2009 WL 10677130, at *8 (E.D.N.Y. May 28, 2009) (plaintiff's breach of contract claim against individual defendants, who were not parties to CBA, failed), adopted , 2009 WL 10677168 (E.D.N.Y. June 22, 2009), aff'd , 410 F. App'x 420 (2d Cir. 2011) ; see also Jungels v. State Univ. Coll. of N.Y. , 922 F. Supp. 779, 787 (W.D.N.Y. 1996) (explaining that "[i]t is hornbook law that a non-signatory to a contract cannot be named as a defendant in a breach of contract action unless it has thereafter assumed or been assigned the contract," and holding that the plaintiff's breach of contract claims against the individual defendants must be dismissed, where the contract was between the State and the plaintiff's union (citation omitted)), aff'd , 112 F.3d 504 (2d Cir. 1997). Accordingly, Plaintiff's breach of contract claims against Dunker, O'Connor, Oldham, and Rotenberg are dismissed with prejudice.
Although Plaintiff did not attach a copy of the contract to his complaint, Plaintiff specifically references and relies on the contract in his complaint, and therefore it is incorporated by reference into the complaint, and the Court may consider it in connection with the motion to dismiss.
B. The Association Defendants
Construing Plaintiff's complaint broadly, his breach of contract claims against the Association Defendants are based on the alleged failure to adequately represent him in connection with his discrimination complaint against MCC. (See Dkt. 1 at 10 (Plaintiff alleging that Hachee, as his "union rep," was "supposed to be advocating for [him]" but instead decided that the Faculty Association did not need to "stake any position other than to advise him privately," explaining that it was "[Plaintiff's] fight entirely ... Nothing really to do but observe the fireworks, I suspect."); see also Dkt. 36 at 1 ("The Association Defendants had every opportunity to conduct a fact-finding and assist me with interpreting the Faculty Association Contract," but they "allowed their friendships and professional relationships to get in the way of giving me proper representation.")). Plaintiff also references that he was not notified of two full-time positions, which was a breach of the Faculty Association contract. (Dkt. 1 at 10).
The Association Defendants argue that Plaintiff's breach of contract claim against them must be dismissed because the Court lacks subject matter jurisdiction. (Dkt. 30-3 at 20-21). "Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper ‘when the district court lacks the statutory or constitutional power to adjudicate it.’ " Ford v. D.C. 37 Union Local 1549 , 579 F.3d 187, 188 (2d Cir. 2009) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ). Specifically, the Association Defendants argue that Plaintiff's claim for breach of contract must be construed as a claim for breach of the duty of fair representation, and the Court does not have jurisdiction to decide such claims. (Dkt. 30-3 at 20-21). In response, Plaintiff simply references the March 24, 2021 Decision and Order (Dkt. 36 at 3), but that decision did not address this issue.
"Under New York law, a union member has no cause of action against his union for breach of a collective bargaining agreement between his employer and his union." See Ifill v. N.Y.S. Court Officer's Assoc. , 655 F. Supp. 2d 382, 393 (S.D.N.Y. 2009) ; see also Herington v. Civil Serv. Employees Ass'n, Inc., 130 A.D.2d 961, 962, 516 N.Y.S.2d 377 (4th Dept. 1987) ("plaintiff has no cause of action against his union either for breach of contract or for negligence arising out of the performance of duties assumed under the collective bargaining agreement"). Rather, "his sole remedy is an action for breach of fair representation." Id.
Section 301(a) of the Labor Management Relations Act ("LMRA") permits federal jurisdiction over cases for violation of contracts between an employer and a labor organization, without respect to the amount in controversy or without regard to the citizenship of the parties. See 29 U.S.C. § 185(a) ; Harris v. United Fed. of Teachers, N.Y.C. Local 2 , No. 02-Civ. 3257(GEL), 2002 WL 1880391, at *1 (S.D.N.Y. Aug. 14, 2002). However, it is well-settled in the Second Circuit that "[t]he LMRA does not confer federal jurisdiction over labor disputes among states, their employees, and the unions who represent them." Baumgart v. Stony Brook Children's Svc., P.C. , 249 F. App'x 851, 852 (2d Cir. 2007). This is because the LMRA does not apply to employees of "any State or political subdivision thereof." Harris , 2002 WL 1880391, at *1 (LMRA's jurisdictional grant did not permit fair representation suit by public school teacher against the teacher's union); see also Ifill , 655 F. Supp. 2d at 393-94 (plaintiff, a state employee, could not bring a claim for breach of duty of fair representation in federal court). Here, Plaintiff is employed by MCC, which is a division of the state, and therefore the Court does not have federal jurisdiction over any claim stemming from the Faculty Association's alleged breach of its contract with MCC. Accordingly, Plaintiff's breach of contract claim is dismissed without prejudice. See Volmar v. N. Shore Hosp. , 216 F. App'x 136, 138 (2d Cir. 2007) (explaining that when federal claims are "dismissed on motion, any alleged state-law claims should be dismissed without prejudice on the ground that the district court declined to exercise supplemental jurisdiction over them," and even when it is "not clear" whether state law claims are asserted, the district court's judgment should "clarify that the dismissal of any asserted state-law claim is based on a lack of jurisdiction" as "[s]uch a dismissal does not foreclose [the plaintiff's] pursuit of such a state-law claim in state court").
To the extent Plaintiff is attempting to assert a state-law breach of contract claim against the Faculty Association, over whom Plaintiff has no remaining federal claims, the Court declines to exercise supplemental jurisdiction.
CONCLUSION
For the foregoing reasons, the motion to dismiss filed by the Association Defendants (Dkt. 29) is granted, and the motion to dismiss filed by the Individual College Defendants (Dkt. 27) is granted. Plaintiff's claims against Matthew O'Connor, Todd Oldham, William Rotenberg, the Faculty Association, Matthew Hachee, and Bethany Gizzi are dismissed. The Clerk of Court is directed to terminate these defendants as parties to this action. Further, Plaintiff's claims against Jeffrey Dunker are dismissed, except for his claims brought pursuant to the NYSHRL which may proceed against Dunker at this stage of the litigation.
SO ORDERED.