Opinion
23-CV-5378 (JMF)
07-24-2024
SEAN JOHNSON, Plaintiff, v. CITY OF NEW YORK et al., Defendant.
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge
Plaintiff Sean Johnson, a corrections officer who has worked for the New York City Department of Corrections (“DOC”) since 2008, brings this action against the DOC, the City of New York (“the City”), and three of his DOC colleagues, Officer Shelly Bishop, Captain Margareta Thompson, and Captain Surland Edwards (the “Individual Defendants”). Johnson alleges that Defendants subjected him to discrimination on the basis of sex, a hostile work environment, and retaliation, all in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101 et seq. He also brings a handful of state common-law claims against some or all of the Defendants. Defendants now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Johnson's claims. See ECF No. 41. For the reasons that follow, Defendants' motion is GRANTED and the Complaint is DISMISSED.
BACKGROUND
The following summary is drawn from the facts alleged in the Complaint, ECF No. 1 (“Compl.”), which are taken as true and construed in the light most favorable to Johnson for purposes of this motion, as well as from documents attached to and incorporated by reference in the Complaint. See, e.g., Empire Merchs., LLC v. Reliable Churchill LLLP, 902 F.3d 132, 139 (2d Cir. 2018).
Johnson, who is male, has worked as a corrections officer at the DOC since 2008. See Compl. ¶ 21. He alleges that “systemic discrimination and harassment has [sic] been prevalent since the inception of his employment,” id. ¶ 33, but his claims here arise from events that began on July 25, 2022. Johnson alleges that, on that date, he had “a disagreement” with Officer Bishop, who is female, after which Bishop “became irate and aggressive, and began to shout discriminatory and offensive comments, such as (1) ‘Fuck You Johnson,' (2) ‘You Punk Ass Nigga,' and (3) ‘And you called the Captain, Oh, you pussy.'” Id. ¶ 34. Johnson reported Bishop's behavior to the Warden and the DOC's “Workplace Violence Committee,” after which Captain Thompson, one of his supervisors and a female, “berated him in front of other officers and inmates,” “ma[de] fun and light of the verbal harassment he suffered from Officer Bishop,” and called him a “whistleblower” and “weird.” Id. ¶¶ 34-35.
A few weeks later, Captain Edwards, another one of Johnson's supervisors and also a female, informed Johnson that his request for four vacation days was rejected. Id. ¶ 38. Johnson objected, after which Edwards “became irate” and “yelled at” Johnson, stating “(a) that she had the power to cancel his vacation time, (b) she doesn't like when he challenges her authority, and (c) his vacation dates were [] rejected.” Id. ¶ 39. Johnson “immediately” filed another complaint of workplace violence and harassment against Edwards. Id. ¶ 40. Ultimately, after appealing the rejection of his request for vacation time, Johnson heard back from a Personnel Supervisor who approved the request, id. ¶ 46-47, but, as a result, Edwards threatened to go to Assistant Deputy Warden (“ADW”) Mario Julien, who is male, to “fictitiously report” misbehavior by Johnson, id. ¶ 47 - a threat she did not carry out. Shortly after Johnson filed his complaint against Edwards, Captain Thompson, Edwards's “friend” and another female supervisor, “placed Mr. Johnson for sudden redeployment . . . to another position.” Id. ¶ 41.
Things only escalated from there. Beginning in late August 2022, Johnson filed five different complaints with the New York State Department of Human Rights (the “NYSDHR”). Id. ¶¶ 11, 85; see ECF No. 1-4. Although these complaints referenced Title VII, and made generalized allegations of discrimination and retaliation, none of them alleged explicitly that Johnson had been the victim of discrimination because of sex. On December 18, 2022, however, Johnson filed an amended complaint with the NYSDHR, in which he explicitly alleged that he had been subjected to discrimination and harassment on the basis of his sex. See Compl. ¶ 12; see also ECF No. 47-9. In the interim, on October 24, 2022, Johnson filed a Notice of Claim alleging, among other things, claims of “discrimination, harassment, [and] hostile work environment grounded in retaliation” under Title VII, the NYSHRL, and the NYCRHL based on the events described above (and some of the events described below). See Compl. ¶ 15; see also ECF No. 1-1. The reference to federal, state, and local discrimination laws aside, however, the Notice of Claim did not explicitly allege discrimination on the basis of sex (or race, for that matter); indeed, it did not include the words “sex” or “gender.”
Meanwhile, Defendants' acts of “discrimination” and “retaliation” persisted. In particular, the Complaint alleges a host of incidents between late August 2022 and April 2023:
• On August 30, 2022, Edwards alleged that Johnson struck her with his empty water bottle as he walked by. Id. ¶ 48. Johnson was then asked to prepare a report to ADW Julien, who determined that the water bottle incident was a mistake. Id. ¶ 49.
• On September 22, 2022, Edwards assigned Johnson to work alone at a post that is usually staffed by two officers, during which he had to conduct seventeen interviews on his own. Id. ¶ 51. The Correction Officers Benevolent Association, Inc. alleged that this assignment was “retaliation.” Id. ¶ 52; see also ECF No. 47-3.
• On November 8, 2022, Johnson worked a shift with a female officer who left her post early. Id. ¶ 54. Within a couple hours, Thompson stated that she would ask the female officer to prepare a report explaining why she had left early and that there must have been a nefarious reason for why she left - suggesting that Johnson himself was part of the reason. Id. The female officer confirmed the next day that she had not been approached by Thompson and had not been asked to prepare a report about Johnson. Id.
• On January 13, 2023, another female officer attempted to blame Johnson for an error in paperwork and, during the interaction, stated that Johnson “ha[s] a problem working with female coworkers, [he] want[s] to be wrong and strong.” Id. ¶ 57.
• On February 8, 2023, Thompson again “harassed” Johnson, who reported the incident to ADW Julien; Julien, however, “failed” to “remedy” the mistreatment. Id. ¶ 58.
• On April 20, 2023, ADW Julien “attempted to prohibit” Johnson from attending in person a General Municipal Law Section 50(h) hearing on his Notice of Claim, suggesting instead that he testify remotely from the “male locker room.” Id. ¶ 66. Johnson participated in the hearing, id. ¶ 96, during which the DOC's attorney expressed skepticism that Johnson would be “afraid” of his female colleagues or that ADW Julien, a male, would have participated in discrimination against other men, id. ¶¶ 97-98.
Finally, the Complaint alleges that on some unspecified date, “a computer posts position known as an IIS” was awarded to a “female officer” without being posted “and giv[ing] everyone an opportunity to compete for the position.” Id. ¶ 90-93. More generally, Johnson alleges that “female officers are generally given greater access to computers than male officers” and that he and another male officer were not given access to “the Crims Report platform,” a “system critical system [sic] that supports their IIS Computer backup role.” Id. ¶ 56.
On or about June 22, 2023, the Equal Employment Opportunity Commission issued Johnson a Notice of Right to Sue. Id. ¶ 14; see also ECF No. 1-6. This lawsuit followed.
LEGAL STANDARDS
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Giunta v. Dingman, 893 F.3d 73, 79 (2d Cir. 2018). A court will not dismiss any claims unless the plaintiff has failed to plead sufficient facts to state a claim to relief that is facially plausible, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) - that is, one that contains “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). More specifically, a plaintiff must allege facts showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Further, if the plaintiff “ha[s] not nudged [his] claims across the line from conceivable to plausible, [those claims] must be dismissed.” Id. at 570. Where, as here, a plaintiff brings claims of employment discrimination, however, the facts “alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86-87 (2d Cir. 2015).
DISCUSSION
Defendants move to dismiss all twelve of Johnson's claims. See ECF No. 42 (“Defs.' Mem.”), at 7-24. At the outset, their motion must be and is granted as to all claims against the DOC because the DOC is not a suable entity. See N.Y.C. Charter ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”); see, e.g., Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007). As to the remaining Defendants, the Court will begin with Johnson's Title VII claims against the City - for disparate treatment on the basis of sex, creation of a hostile work environment, and retaliation - and then turn to his state-law claims against all Defendants.
Defendants argue that service on the individual Defendants was untimely by a few days. See Defs.' Mem. 6-7. Their argument is not altogether without force, but given Johnson's efforts to effectuate service, see ECF Nos. 29, 31, 32, 47-2, and the lack of prejudice to the individual Defendants (who appeared even before they were served, see ECF No. 37), the Court exercises its discretion to grant a nunc pro tunc extension of the service deadline.
A. Disparate Treatment Under Title VII
First, Johnson alleges that the City discriminated against him on the basis of sex in violation of Title VII. See Compl. ¶ 102. That claim is subject to the three-step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). At the motion-to-dismiss stage, however, only the first step - the plaintiff's burden to allege a prima facie case of discrimination - is at issue. See Littlejohn, 795 F.3d at 311. To state a prima facie case, a plaintiff must show that: (1) he was a member of a protected class; (2) he was competent to perform the job in question or was performing his work duties satisfactorily; (3) he suffered a materially adverse employment action; and (4) the action occurred under circumstances that give rise to an inference of discrimination. See, e.g., Spiegel v. Schulman, 604 F.3d 72, 80 (2d Cir. 2010) (per curiam). To survive a motion to dismiss under all of the provisions at issue in this case, the facts alleged must provide “at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311.
Strictly speaking, Johnson alleges disparate treatment and hostile work environment together as one claim titled “Discrimination in Violation of Title VII.” The Court will analyze them separately, however, because they are subject to somewhat different standards.
Although “the burden of establishing a prima facie case is ‘minimal,'” Smith v. N.Y. & Presbyterian Hosp., 440 F.Supp.3d 303, 328 (S.D.N.Y. 2020) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)), Johnson fails to meet it. As an initial matter, it is not clear that he alleges any materially adverse employment action. “To be materially adverse, a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.' . . . Examples of such a change include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.'” Sanders v. New York City Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). Here, Johnson alleges that he has identified “at least 10 different categories of Adverse Actions” taken against him, but the vast majority are merely conclusory allegations that he was treated differently from other employees. ECF No. 47 (“Pl.'s Opp'n”), ¶ 41. The most concrete allegations are that he was denied leave to take certain days as vacation, Compl. ¶¶ 38-39; and that he was “redeployed to another position,” id. ¶ 41. But, without more, these allegations do not qualify as materially adverse employment actions. See, e.g., Gironda v. Shoreham-Wading River Cent. Sch. Dist., No. 19-CV-4301 (MKB), 2023 WL 2710359, at *11 (E.D.N.Y. Mar. 30, 2023) (“While reassignment of job duties can constitute a materially adverse employment action, . . . the reassignment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Only where an employee is reassigned to a position that could be objectively considered less desirable or comes with diminished responsibilities, do courts find reassignments materially adverse employment actions.” (cleaned up) (citing cases)); Chukwuka v. City of New York, 795 F.Supp.2d 256, 261 (S.D.N.Y. 2011) (“[T]he denial of vacation time does not generally rise to the level of an adverse employment action. Moreover, the denial of a single vacation request, without any indication that there was an absolute prohibition against plaintiff taking any vacation time, is not a material adverse employment action.” (cleaned up) (citing cases)).
Johnson “summarize[s]” the alleged adverse employment actions as follows:
(a) permitting Plaintiff to be subjected to a hostile, discriminatory, and bullying work environment, (b) failure to take any corrective action for the offenses suffered by Plaintiff, (c) complete ignorance to even acknowledge the discriminatory and hostile behavior, (d) permitting Plaintiff to suffer from retaliation, since the discrimination and harassment became incrementally more hostile after he opposed it, (e) effectively and wrongly cancelling Plaintiff's vacation time on grounds of “teaching him a lesson,” all aimed to prevent him from “challenging” the Indiv. Def's, (f) subjecting Plaintiff to excessively harsh disciplinary measures for actions that would be brushed off had he been a female, (g) subjecting Plaintiff to dissimilar and disparate working conditions, (h) failing to investigate formal reports, all supported by evidence, but at the same time excessively disciplining Plaintiff for pretextual reasons that all pan out to be nothing, (i) ignoring formal claims made to outside agencies for support - as the DOC is simply untouchable.Id.
In any event, even if Johnson does allege materially adverse employment actions, he fails to allege circumstances giving rise to an inference that they were the product of sex discrimination. In opposing Defendants' motion, Johnson argues that “[t]he connection” between Defendants' treatment of him and “gender is prevalent” in three ways: (1) because “literally all of the wrongful actors, with the exception of ADW Julien, are females”; (2) because the alleged discriminatory treatment was “taken against males, as opposed to females”; and (3) because of Defendants' “awful, disgusting, and discriminatory” comments toward him. Pl.'s Opp'n ¶ 70. But the first argument falls short because, even if the Court were to ignore the “exception of ADW Julien,” it is “the uniform position of federal courts” that “the mere fact that . . . decision makers were of a different [sex] than the plaintiff is insufficient to permit an inference of discrimination.” Pinder v. Emp. Dev. Dep't, 227 F.Supp.3d 1123, 1141 (E.D. Cal. 2017) (cleaned up) (quoting Coulton v. Univ. of Pa., 237 Fed.Appx. 741, 747 (3rd Cir. 2007), and citing cases). And the second comes up empty because, conclusory allegations aside, Johnson fails to allege that the women allegedly treated differently from men were similarly situated. See, e.g., Dooley v. Jetblue Airways Corp., No. 14-CV-4432 (JMF), 2015 WL 1514955, at *3 (S.D.N.Y. Apr. 1, 2015) (“‘A plaintiff may support an inference of [sex] discrimination by demonstrating that similarly situated employees [outside her protected class] were treated more favorably,' but ‘[i]n order to make such a showing, the plaintiff must compare herself to employees who are similarly situated in all material respects.'” (quoting Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999)), aff'd in relevant part, 636 Fed.Appx. 16, 20 (2d Cir. 2015) (summary order); see id. (dismissing a discrimination claim on that ground and citing cases); Adams-Flores v. City of New York, No. 18-CV-12150 (JMF), 2021 WL 918041, at *3 (S.D.N.Y. Mar. 10, 2021) (same); Daniels v. City of New York, No. 17-CV-9960 (LGS), 2019 WL 251511, at *4 (S.D.N.Y. Jan. 17, 2019) (same). In other words, Johnson's allegations may be sufficient to establish that Defendants treated some female employees differently, but they are not sufficient to suggest that that treatment was because of their sex.
One example helps illustrate the point. Johnson points to the fact that a computer-related position was simply awarded to a female employee. See Compl. ¶¶ 90-93. But he does not allege that he was similarly situated to that employee. Moreover, he concedes that the position was not posted at all. See id. ¶ 91 (noting that the “position was never posted”); Id. ¶ 93 (“DOC . . . never permitted male employees or any employees an opportunity to apply.” (emphasis added)). The award of the position to a female employee might therefore be evidence of favoritism at the DOC, but it does not provide evidence of sex discrimination.
That leaves the comments directed at Johnson, most notably Officer Bishop's statements - namely, “Fuck You Johnson”; “You Punk Ass Nigga”; and “And you called the Captain, Oh, you pussy.” Compl. ¶ 34. These statements are certainly offensive and may well support Johnson's assertion that he was “working in hell,” Pl.'s Opp'n ¶ 120, but they do not support an inference of discrimination on the basis of sex. Two of the comments (“Fuck You Johnson” and “You Punk Ass Nigga”) are not related to sex at all. See Goodwine v. City of New York, No. 15-CV-2868 (JMF), 2016 WL 3017398, at *8 (S.D.N.Y. May 23, 2016) (disregarding “allegedly harassing acts [that] were ‘sex-neutral' and race-neutral ‘on their face.'” (quoting Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002)). And as “shocking as” the third “may be, the Court is not persuaded that it is related to gender under the circumstances. Rather, . . . the slur ‘pussy' is more likely to mean ‘coward' than anything gender related.” Est. of D.B. ex rel. Briggs v. Thousand Islands Cent. Sch. Dist., 169 F.Supp.3d 320, 332 (N.D.N.Y. 2016), abrogated on other grounds by Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2d Cir. 2017). That is especially true when that statement is viewed together with the other, non-sex-related statements. The logical inference to be drawn from these statements is that Officer Bishop was angry with Johnson and did not treat him well, not that she treated him differently because of his sex.
In short, Johnson's disparate treatment claim under Title VII must be and is dismissed.
B. Hostile Work Environment Under Title VII
Johnson's next claim under Title VII is for a hostile work environment. See Compl. ¶ 102. To state a hostile work environment claim under Title VII, a plaintiff must allege facts sufficient to show that his “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 working environment.” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (cleaned up). In determining whether such an environment exists, a court must consider “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal quotation marks omitted). Significantly, “a plaintiff alleging a hostile work environment claim must also establish that ‘the conduct at issue was not merely tinged with offensive connotations, but actually constituted discrimination because of'” a protected characteristic. Browne v. City Univ. of N.Y., 419 F.Supp.2d 315, 330 (E.D.N.Y. 2005) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 80-81 (1998)), aff'd sub nom. Browne v. Queen's Coll. City Univ. of N.Y., 202 Fed.Appx. 523 (2d Cir. 2006) (summary order); accord Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
Measured against those standards, Johnson's claim falls short for two reasons. First and foremost, the claim fails for the reasons discussed above. That is, at most, the allegations establish that Defendants' conduct was “tinged with offensive connotations”; they do not support a plausible inference that the work environment, even if hostile, was a result of “discrimination because of” sex. Browne, 419 F.Supp.2d at 330; See, e.g., Goodwine, 2016 WL 3017398, at *8 (dismissing a hostile work environment claim on the ground that, “conclusory assertions aside,” there was “nothing in the Complaint to suggest that [the defendant's] conduct was based on Plaintiff's race or sex”); La Marco v. N.Y. State Nurses Ass'n, 118 F.Supp.2d 310, 317-18 (N.D.N.Y. 2000) (holding that the defendant's use of the term “bitch,” in conjunction with other gender-neutral offensive conduct, was not enough to establish a sex-based hostile work environment). Second, and in any event, the claim fails because the incidents that Johnson alleges are not “sufficiently continuous and concerted in order to be deemed pervasive.” Littlejohn, 795 F.3d at 321. Defendants' alleged statements were only sporadic and, in any event, “merely offensive or boorish.” O'Dell v. Trans World Entm't Corp., 153 F.Supp.2d 378, 386 (S.D.N.Y. 2001). And the rest of Johnson's allegations add up to little more than “isolated events that sound more in retaliation; by themselves, they do not establish conditions so pervasive or severe as to constitute a hostile work environment.” Harrisman v. City of N.Y. Dep't of Transp., No. 19-CV-2986 (JMF), 2020 WL 5211043, at *4 (S.D.N.Y. Sept. 1, 2020). The fact that Johnson subjectively experienced his work environment as abusive is not enough to state a hostile work environment claim. See Littlejohn, 795 F.3d at 321.
Accordingly, Johnson's Title VII hostile work environment claim must be and is also dismissed.
C. Retaliation Under Title VII
Finally, Johnson brings a retaliation claim under Title VII. To state a claim of retaliation, a plaintiff must “give plausible support to the reduced prima facie requirements” of “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Febrianti v. Starwood Worldwide, No. 15-CV-635 (JMF), 2016 WL 502027, at *3 (S.D.N.Y. Feb. 8, 2016) (quoting Littlejohn, 795 F.3d at 315, 318). An employee's complaint qualifies as “protected activity” if the employee has a good faith, reasonable belief (assessed in light of the totality of the circumstances) that the employee was “opposing an employment practice made unlawful by Title VII.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14-15 (2d Cir. 2013) (per curiam). “Moreover, the employer must be able to reasonably understand that the complaint was directed at conduct prohibited by Title VII.” Bamba v. Fenton, 758 Fed.Appx. 8, 12-13 (2d Cir. 2018) (summary order); Risco v. McHugh, 868 F.Supp.2d 75, 110 (S.D.N.Y. 2012) (“[C]omplaints must be sufficiently specific to make it clear that the employee is complaining about conduct prohibited by Title VII. Generalized complaints about a supervisor's treatment are insufficient.”).
To satisfy the “causal connection” requirement, a plaintiff must plausibly allege that “retaliation was a ‘but-for' cause of the employer's adverse action[s],” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018), “not simply a ‘substantial' or ‘motivating' factor in the employer's decision,” Vaughn v. Empire City Casino at Yonkers Raceway, No. 14-CV-10297 (KMK), 2017 WL 3017503, at *20 (S.D.N.Y. July 14, 2017). “[P]roof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). Although “a close temporal relationship between a plaintiff's participation in protected activity and an employer's adverse actions can be sufficient to establish causation,” Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002), retaliation claims relying solely on temporal proximity to demonstrate a causal connection are difficult to prove and the temporal proximity must be “very close,” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).
When it comes to retaliation, Johnson's Complaint and opposition memorandum of law are far from models of clarity, as he makes little or no effort to differentiate between his allegations of retaliation and his allegations of discrimination, instead merely asserting in conclusory fashion that Defendants' actions constituted retaliation. But breaking the allegations down, although the claim comes closer to the plausibility line than the other claims do, it does not cross the line. For starters, most of what Johnson points to as “protected activity” does not qualify as such. Yes, he filed a slew of reports and complaints with DOC's Workplace Violence Committee or ADW Julien beginning on July 25, 2022. See Compl. ¶¶ 58, 65. And yes, he filed five complaints with the NYSDHR beginning in late August 2022. See id. ¶ 85; Pl.'s Opp'n ¶ 86(i). But none of these made allegations of discrimination on the basis of sex (or any other characteristic protected under Title VII, for that matter). See Pl.'s Opp'n ¶ 78; see ECF No. 1-4. At most, they alleged that Johnson was treated unfairly and alleged retaliation for his Workplace Violence Committee complaints; they alleged nothing to suggest that Johnson was “opposing an employment practice made unlawful by Title VII,” Kelly, 716 F.3d at 14-15, let alone conveyed facts that would have enabled Defendants “to reasonably understand that the complaint[s were] directed at conduct prohibited by Title VII,” Bamba, 758 Fed.Appx. at 12-13. In fact, Johnson himself concedes that he did not raise “the issue of gender discrimination explicitly” until the October 24, 2022 Notice of Claim, see Pl.'s Opp'n ¶ 78; see also Compl. ¶ 15; ECF No. 1-1, and his amended complaint filed with the NYSDHR on December 18, 2022, see Pl.'s Opp'n ¶ 79; see also Compl. ¶ 12; ECF No. 47-9.
It is doubtful that the October 24, 2022 Notice of Claim qualified as protected activity within the meaning of Title VII either. As noted above, although it makes reference to Title VII and alleges that the DOC subjected Johnson to “discrimination,” it does not include the words “sex” or “gender.” In other words, it too makes generic allegations of mistreatment by Defendants. Nevertheless, the Court will assume arguendo that it qualified as protected activity.
That is fatal to Johnson's retaliation claim. Most of the conduct that Johnson identifies as adverse employment actions predated October 24, 2022. By definition, those actions could not have been caused by protected activity that came later. See, e.g., Petyan v. N.Y.C. Law Dep't, No. 14-CV-1434 (GBD) (JLC), 2015 WL 1855961, at *13 (S.D.N.Y. Apr. 23, 2015) (“To constitute retaliation, the alleged protected activity must predate evidence of the alleged retaliatory animus.” (cleaned up)), report and recommendation adopted by 2015 WL 4104841 (S.D.N.Y. July 2, 2015). And the fact that Defendants' alleged mistreatment of Johnson began before he did anything that could constitute protected activity under Title VII belies his claim that Defendants' later conduct was retaliatory because Johnson does not allege that the mistreatment ratcheted up following his October 24, 2022 Notice of Claim. See, e.g., Hall v. Parker Hannifan Corp., 824 F.Supp.2d 464, 469 (W.D.N.Y. 2009) (“Courts have held that ‘if the alleged retaliatory behavior pre-existed the protected activity, the plaintiff must provide some evidence of ratcheting up or increased harassment to succeed.'”); see also Nunez v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 14-CV-6647 (JMF), 2015 WL 4605684, at *14 (S.D.N.Y. July 31, 2015) (same), aff'd sub nom. Nunez v. Lima, 762 Fed.Appx. 65 (2d Cir. 2019) (summary order); Cayemittes v. City of N.Y. Dep't of Hous. Preservation & Dev., 974 F.Supp.2d 240, 262 (S.D.N.Y. 2013) (“If an employer's conduct before and after an employee complaint is consistent, the post-complaint conduct is not retaliatory.”), aff'd, 641 Fed.Appx. 60 (2d Cir. 2016) (summary order).
Even if that were not the case, most of Defendants' conduct would not qualify as adverse employment actions in any event. First, Johnson's allegation that his complaints were ignored, See, e.g., Compl. ¶¶ 43, 65, 67, 68, 110, fails as a matter of law because “[a]n employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint.” Torre v. Charter Commc'ns, Inc., 493 F.Supp.3d 276, 289 (S.D.N.Y. 2020) (quoting Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)). Second, for reasons similar to those discussed above, Johnson's allegations about his vacation time and redeployment to a different position are, without more, inadequate. See Drouillard v. Sprint/United Mgmt. Co., 375 F.Supp.3d 245, 272 (E.D.N.Y. 2019) (“[T]he denial of a single vacation request, without any indication that there was an absolute prohibition against plaintiff taking any vacation time, is not a material adverse employment action.” (quoting Roff v. Low Surgical & Med. Supply, Inc., No. 03-CV-3655 (SJF), 2004 WL 5544995, at *4 (E.D.N.Y. May 11, 2004))); Kirkland-Hudson v. Mount Vernon City Sch. Dist., 665 F.Supp.3d 412, 452 (S.D.N.Y. 2023) (“It is only where a plaintiff is given a workload heavier that similarly situated employees where such a workload may constitute an adverse employment action.”). Third, Johnson's contention that Captain Edwards falsely accused him of striking her with his water bottle fails because “false allegations, alone, may not constitute an adverse employment action.” Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F.Supp.3d 763, 784 (S.D.N.Y. 2019) (emphasis added). Indeed, ADW Julien determined that the water bottle incident was a mistake, Compl. ¶ 49, so it caused no change “in the terms and conditions of [Johnson's] employment,” Spaulding v. N.Y.C. Dep't of Educ., No. 12-CV-3041 (KAM) (VMS), 2015 WL 12645530, at *38 (E.D.N.Y. Feb. 19, 2015), report and recommendation adopted by 2015 WL 5560286 (E.D.N.Y. Sept. 21, 2015). Finally, Johnson's generalized allegations that he was harassed or embarrassed by colleagues, See, e.g., Compl. ¶¶ 57, 58, 68, 76, 110, fail because “courts have repeatedly held that such behavior does not amount to an adverse employment action in a retaliation context.” Kirkland-Hudson, 665 F.Supp.3d at 461 (citing cases); see also E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d 816, 848 (S.D.N.Y. 2013) (holding that publicly yelling at plaintiff on the sales floor did not constitute an adverse employment action).
In any event, separate and apart from the fact that Defendants' alleged mistreatment began before any plausible protected activity, Johnson fails to allege any facts that would support a causal connection between that activity and any adverse employment actions. The closest he comes to identifying an adverse employment action that postdated October 2022 is his allegation that he was prevented from testifying in person at the Section 50(h) hearing held on April 24, 2023. See Compl. ¶ 66. But this allegation amounts to nothing more than a denial of paid leave time because Johnson was, after all, permitted to testify - he was merely denied leave to take the day off to testify in person. Thus, it does not qualify as a material adverse employment action. See Drouillard, 375 F.Supp.3d at 272. And even if it did so qualify, Johnson alleges no facts other than timing to connect it to his protected activity on October 24, 2022 and December 18, 2022. But that four-plus month gap is too long to support an inference of causation. See, e.g., Dodd v. City Univ. of N.Y., 489 F.Supp.3d 219, 247 (S.D.N.Y. 2020) (“Generally, to show causation through temporal proximity alone, courts in this Circuit require no more than two months to have passed between a protected activity and an adverse action.”); De Figueroa v. New York, 403 F.Supp.3d 133, 157 (E.D.N.Y. 2019) (“There is no firm outer limit to the temporal proximity required, but most courts in the Second Circuit have held that a lapse of time beyond two or three months will break the causal inference.” (citing Walder v. White Plains Bd. of Educ., 738 F.Supp.2d 483, 503-04 (S.D.N.Y. 2010))); Jones v. N.Y.C. Bd. of Educ., No. 09-CV-4815 (RWS), 2012 WL 1116906, at *14 (S.D.N.Y. Apr. 2, 2012) (“District courts in this circuit consistently have found that an intervening period of more than two to three months is insufficient to establish a causal connection through temporal proximity alone.”).
In conjunction with his opposition to Defendants' motion, Johnson filed a declaration alleging that he was suspended in September 2023 as a result of his efforts to assist the process server in serving the summons and Complaint in this case on the individual Defendants. See ECF No. 47-1, ¶ 59(i); ECF No. 47-4, at 1; Pl.'s Opp'n ¶ 86(viii). The Court may not consider that extrinsic allegation on a motion to dismiss. See, e.g., see DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010); AJ Energy LLC v. Woori Bank, No. 18-CV-3735 (JMF), 2019 WL 4688629, at *1 (S.D.N.Y. Sept. 26, 2019). In any event, Johnson's own declaration and exhibits reflect an obvious non-retaliatory reason for his suspension - namely, Johnson's violation of rules prohibiting employees from “leav[ing] their post or place of assignment without the permission of a superior” and prohibiting “non departmental issued electronic equipment, [including] cellular phones . . . from entering a department facility unless authorized.” ECF No. 47-4, at 1.
At bottom, Johnson's Complaint certainly paints a picture of a dysfunctional workplace. It may even demonstrate that he was subject to retaliation for complaints that he filed against his colleagues and supervisors. But Title VII does not prohibit retaliation for any and all workplace complaints; it protects against retaliation only for complaints about conduct made unlawful by Title VII. For the reasons discussed, Johnson fails to plausibly allege that kind of retaliation. Accordingly, his Title VII retaliation claim must be and is dismissed as well.
D. Claims Under State and Local Law
For the foregoing reasons, all of Johnson's federal claims must be and are dismissed. In light of that, the Court declines to exercise supplemental jurisdiction over Johnson's state-law claims. Under 28 U.S.C. § 1367(a), a district court has discretion over whether to exercise supplemental jurisdiction over state-law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” The Supreme Court and the Second Circuit have made clear, however, that as a general rule, “when the federal claims are dismissed the ‘state claims should be dismissed as well.'” In re Merrill Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)); accord Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013). Here, there is no basis to depart from that general rule because the case is still at an early stage. Thus, the traditional “values of judicial economy, convenience, fairness, and comity” that the Court must consider do not counsel in favor of exercising supplemental jurisdiction. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).Accordingly, Johnson's state-law claims are dismissed without prejudice to refiling them in state court. See 28 U.S.C. § 1367(c)(3); see also, e.g., United States ex rel. Borzilleri v. AbbVie, Inc., No. 15-CV-7881 (JMF), 2019 WL 3203000, at *3 (S.D.N.Y. July 16, 2019).
That is true even with respect to Johnson's parallel claims under the NYSHRL and NYCHRL. “Until recently, courts in this district routinely decided NYSHRL hostile work environment, discrimination, and retaliation claims along with Title VII claims because the standards for each were the same. In August 2019, however, New York amended the NYSHRL to direct courts to construe the NYSHRL, like the NYCHRL, liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws including those laws with provisions worded comparably to the provisions of the NYSHRL have been so construed.” Halkitis v. N.Y.C. Dep't of Educ., No. 19-CV-11753 (JMF), 2022 WL 392911, at *7 (S.D.N.Y. Feb. 9, 2022) (cleaned up).
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED and the Complaint is DISMISSED. Additionally, the Court declines to sua sponte grant Johnson leave to amend. To be sure, leave to amend a pleading should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). But it is “within the sound discretion of the district court to grant or deny leave to amend,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and there are several reasons to exercise that discretion to deny leave here. First, the problems with Johnson's claims are largely if not entirely substantive, so amendment would be futile. See, e.g., Roundtree v. City of New York, No. 19-CV-2475 (JMF), 2021 WL 1667193, at *6 (S.D.N.Y. Apr. 28, 2021) (citing cases). Second, Johnson does not request leave to amend or suggest that he is in possession of facts that would cure the problems with his claims. See, e.g., Clark v. Kitt, No. 12-CV-8061 (CS), 2014 WL 4054284, at *15 (S.D.N.Y. Aug. 15, 2014) (“A plaintiff need not be given leave to amend if [he] fails to specify how amendment would cure the pleading deficiencies in [his] complaint.”); accord TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505-06 (2d Cir. 2014). Finally, the Court granted Johnson leave to amend his original complaint in response to Defendants' motion to dismiss, which raised the defects in the claims discussed above, and explicitly warned that Johnson would “not be given any further opportunity to amend the complaint to address issues raised by the motion to dismiss.” ECF No. 44. Johnson's “failure to fix deficiencies in [his] previous pleadings is alone sufficient ground to deny leave to amend sua sponte.” Transeo S.A.R.L. v. Bessemer Venture Partners VI L.P., 936 F.Supp.2d 376, 415 (S.D.N.Y. 2013) (citing cases).
The Clerk of Court is directed to terminate ECF No. 41, to enter judgment for Defendants consistent with this Opinion and Order, and to close the case.
SO ORDERED.