Duplan v. City of New York
Opinion
Louis Duplan appeals from a judgment of the United States District Court for the Eastern District of New York (Roslynn R. Mauskopf,
J.
), dismissing his claim that his employer, the City of New York ("the City"), retaliated against him after he filed a discrimination complaint, in violation of
With respect to his Title VII claims, we conclude that Duplan cannot avoid that statute's exhaustion requirement by asserting *617 retaliation for filing a claim of discriminatory treatment that he failed to pursue. As to those claims properly exhausted by Duplan's second complaint to the Equal Employment Opportunity Commission ("EEOC"), however, Duplan has adequately alleged retaliation for filing his earlier EEOC complaint. Duplan has also adequately alleged that he suffered an adverse employment action in retaliation for filing his second EEOC complaint. Finally, we determine that Duplan has failed to allege sufficiently severe or pervasive conduct to make out a hostile work environment claim. Accordingly, the district court's dismissal of Duplan's properly exhausted Title VII retaliation claims is VACATED, and in all other respects the judgment of the district court is AFFIRMED.
BACKGROUND
I. Factual Background
Because a court that rules on a defendant's motion to dismiss a complaint "must accept as true all of the factual allegations contained in the complaint,"
Bell Atl. Corp. v. Twombly
,
Louis Duplan, a gay, black man from Haiti, was, at all relevant times, an employee of the City of New York in the Administration Unit of the Bureau of HIV/AIDS Prevention and Control, which is a subdivision of the City's Department of Health and Mental Hygiene (the "Department"). From 2005 through 2011, Duplan held the position of Director of Operations, in which role he had numerous managerial and supervisory responsibilities. In 2011, Duplan's direct supervisor was Randolph Rajpersaud, the Bureau's Director of Administration. In that role, Rajpersaud made derogatory comments about black people, gay people, and Haitians, and had on two occasions given preferential treatment to white women. In May 2011, Rajpersaud targeted Duplan personally by removing several of his substantive and managerial responsibilities.
After Rajpersaud was promoted to Assistant Commissioner of the Department, in June 2011, Duplan applied for a promotion to the vacated post of Director of Administration. Rajpersaud served on the hiring committee for his replacement. Duplan was not selected for the job; instead, in July, the committee chose a white, straight, American-born woman whom Duplan alleges was less qualified for the position. That selection, coupled with Rajpersaud's participation in the process, led Duplan to believe that he had been denied the position on the basis of his race, national origin, and sexual orientation.
In July and August 2011, Duplan filed complaints with the City, the EEOC, and the New York State Division of Human Rights ("NYSDHR"), asserting that he had been denied the promotion for discriminatory reasons and, in retaliation for complaining about that discrimination, had then been effectively demoted through the diminution of his substantive responsibilities. For the remainder of that year, Rajpersaud and other unspecified City officials engaged in a retaliatory campaign against Duplan. Under the pretext of a "reorganization," Duplan was deliberately deprived of additional responsibilities as well as all of his remaining subordinates. His sole remaining responsibility involved time management tasks, which he voluntarily *618 expanded in order to stay busy. Duplan also learned that, at some point in late 2011, Rajpersaud had unsuccessfully attempted to reduce his salary several times. Duplan received a right-to-sue letter from the EEOC on July 30, 2012, but never filed a civil action.
Between 2011 and 2014, Duplan alleges, each of his successive supervisors continued to ostracize and ignore him. Duplan also applied for several more managerial positions for which he was qualified, but he was not interviewed or seriously considered. In September 2014, Duplan emailed several supervisory employees in the Department to complain about the retaliation he believed he had experienced following his 2011 complaint, and on October 23, 2014, he filed a complaint regarding that alleged retaliation with the EEOC and the NYSDHR.
In his complaint, Duplan charged that, in the 300 days prior to filing his second EEOC complaint, 1 the following discrete acts of retaliation occurred: First, at some point in 2014, John Rojas, his then-supervisor, denied him a merit raise that was given to the majority of his coworkers. Second, Duplan was suspended for ten business days without pay in September and October 2014 after another employee made an allegedly false sexual harassment claim against him, even though the complainant had sought only an informal conference to resolve the issue. Third, in September 2014, the City created a position that included all of the responsibilities Duplan had held before he began making complaints in 2011 (and which had subsequently been taken from him, allegedly in retaliation for those complaints), but did not hire him for that role. When Duplan asked Rojas why his responsibilities had not simply been restored, Rojas responded that the matter was "out of his control," despite the fact that Rojas was directly involved in hiring for the new position. App. at 13, ¶ 18(a). That response discouraged Duplan from applying for the position. Fourth, Duplan's application for the Director of Administration position was denied again in September 2014.
Duplan alleges that he was subjected to two additional instances of retaliation as a result of his 2014 complaint. First, in November 2014 and January 2015, Duplan was assigned additional duties that were "well below" his civil service and functional titles, including removing boxes, fulfilling maintenance requests, acting as Fire Warden, and assigning seats to new employees. App. at 17. Second, in September 2015, Duplan lost access to the time management system, thus depriving him of the sole task remaining from his pre-2011 responsibilities and leaving him with only work that is "well below [his] civil service title as well as his functional title." App. at 17.
II. Procedural History
Duplan received a right-to-sue letter in June 2015, and on July 10, 2015, he brought this action, asserting claims for discrimination, retaliation, and hostile work environment under
First, the court held that Duplan's § 1981 claims failed because § 1983 provided the sole federal remedy for discrimination perpetuated by state actors. It also *619 noted that to the extent the claims could be construed as § 1983 claims, they would either be untimely under § 1983's three-year statute of limitations, or fail for the same substantive reasons as the Title VII claims.
Second, the court concluded that Duplan was time-barred from alleging retaliation based on conduct that occurred prior to December 27, 2013 (300 days before the 2014 EEOC complaint). The court held that the 2014 EEOC charge was untimely as to any conduct occurring before that date. It also rejected Duplan's contention that those claims could be deemed exhausted by his 2011 EEOC filing, because Duplan had failed to file suit within 90 days after receiving a right-to-sue letter based on the earlier complaint.
Third, evaluating the remaining allegations, the court held that Duplan had failed to demonstrate a sufficient causal connection between the conduct included in the 300-day look-back period prior to the 2014 EEOC complaint and any retaliatory animus arising from the 2011 complaint.
Fourth, the court held that Duplan had not adequately alleged retaliation following his 2014 complaint because the conduct about which he complained did not amount to an adverse employment action. And finally, it ruled that Duplan had not adequately alleged a hostile work environment claim because the course of conduct alleged was not sufficiently severe or pervasive.
Duplan timely appealed, challenging each of those holdings.
DISCUSSION
A district court's grant of a motion to dismiss is reviewed
de novo
.
Simmons v. Roundup Funding, LLC
,
I. Section 1981 Claims
Duplan seeks to assert claims against the City under
Duplan's argument hinges on a new reference to state actors added to § 1981(c) by the 1991 amendments, which reads as follows: "The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law."
In
Federation of African American Contractors v. City of Oakland
,
Every subsequent Circuit to consider the issue, however, has declined to follow
Federation
's reasoning.
2
As explained by Judge Arterton in her thorough and well-reasoned discussion of this case law in
Smith v. Metropolitan District Commission
,
We find that reasoning persuasive, and therefore join nine of our sister Circuits in concluding that § 1981 does not provide a separate private right of action against state actors. Accordingly, Duplan's claims against the City under that provision were properly dismissed. Moreover, if we construe Duplan's § 1981 claims as brought under § 1983, they still fail because Duplan has failed to allege that the "challenged acts were performed pursuant to a municipal policy or custom," as required to maintain a § 1983 action against a municipality.
Patterson v. Cty. of Oneida
,
II. Title VII Claims
Duplan asserts Title VII claims on the basis of the discrete instances of retaliation he suffered for filing his 2011 and 2014 EEOC complaints, and further asserts that he was subjected to a generally hostile work environment in retaliation for making those complaints. We discuss each of those claims in turn.
A. Retaliation Following the 2011 Complaint
In order to evaluate whether Duplan has alleged viable claims for retaliation following his 2011 complaint, we must first determine whether he has timely alleged and properly exhausted those claims. Concluding that we may address only those instances of retaliation included in his 2014 EEOC complaint, we then consider whether those allegations are sufficient to make out a prima facie case of retaliation at the pleading stage.
1. Exhaustion and Timeliness
Before an aggrieved party can assert a Title VII claim in federal court, he is generally required to exhaust the administrative remedies provided by the statute.
See
Fowlkes v. Ironworkers Local 40
,
Duplan argues, however, that his 2011 EEOC charge should be deemed to have exhausted any subsequent claims of retaliation for filing that charge. We have, indeed, long recognized that in certain circumstances it may be unfair, inefficient, or contrary to the purposes of the statute to require a party to separately re-exhaust new violations that are "reasonably related" to the initial claim.
Butts v. N.Y.C. Dep't of Hous. Pres. & Dev.
,
In the paradigmatic case for which the "reasonably related" doctrine was adopted, retaliation occurs while the EEOC charge is still pending before the agency. It is well established that the plaintiff may then sue in federal court on both the adverse actions that gave the impetus for the initial EEOC charge and the retaliation that occurred thereafter, even though no separate or amended EEOC charge encompassing the subsequent retaliation was ever filed.
See
Owens v. N.Y.C. Hous. Auth.
,
But we have also applied the "reasonably related" doctrine to retaliation that occurs after the EEOC investigation is complete, even though the rationale that the retaliation likely was or should have been encompassed by the EEOC investigation is not available in such cases. For instance, in
Malarkey v. Texaco, Inc.
,
Duplan attempts to analogize his situation to the facts of
Legnani
. There is, however, a crucial distinction between that case and the present facts: in
Legnani
, the "related" retaliation occurred while a
timely federal lawsuit
based on the underlying discrimination charge was still pending.
See
Duplan, however, has long since abandoned his initial claim of discrimination, because he failed to timely bring a lawsuit on that claim after receiving a right-to-sue letter in 2012. In such a case, the underlying discrimination claims that were the basis of the original EEOC charge are time-barred. No administrative or judicial proceeding is still pending, and the employee who suffers further discrimination or retaliation, like any other employee with a potential Title VII claims, therefore remains subject to that statute's administrative exhaustion requirement. There is no reason to expand the judicially created waiver of the statutory exhaustion requirement to permit unexhausted retaliation claims to be held open indefinitely into the future, or litigated without going through a new administrative process, simply because, if the plaintiff had timely filed suit, policy considerations would have weighed in favor of waiving the exhaustion requirement so that the retaliation claim could have been joined with that hypothetical lawsuit.
*624 Although we have not previously had occasion to make clear that "reasonably related" retaliation claims are excused from the exhaustion requirement only if they arise during the pendency of an EEOC investigation or a timely filed federal case, that outcome is consistent with Title VII's statutory scheme and our existing case law. There is no indication in the text or legislative history of Title VII that Congress intended to sanction a broad category of unexhausted retaliation claims.
Notably, moreover, Title VII provides no alternative statute of limitations that would apply to such delayed retaliation claims. As noted above, Title VII claims ordinarily must be filed 90 days after the plaintiff receives a right-to-sue letter from the agency. But if an employer waits more than 90 days to retaliate against an employee for filing an EEOC complaint, the retaliation claim cannot be brought within the statutory window. If a timely filed federal case is underway, then the later instances of retaliation can be added to an amended complaint and investigated using discovery in much the same way that they could have been addressed during an ongoing EEOC investigation. But if there is no such case, and we nevertheless suspend the exhaustion requirement as Duplan requests, we would essentially be doing away with the statute of limitations requirement for this class of claims.
To avoid creating a liability unbounded by any temporal limitation, Duplan proposes that we treat "reasonably related" retaliation claims like other federal causes of action for which there is no specified statute of limitations. He suggests that we borrow an analogous state statute of limitations for such claims, which, in the present case, would yield a three-year window. We see no reason to strain so hard to find a palatable way to suspend Title VII's requirements for an entire category of claims. Exhaustion is "an essential element of Title VII's statutory scheme."
Hardaway v. Hartford Pub. Works Dep't
,
In sum, retaliation claims arising during or after an EEOC investigation are deemed exhausted when a plaintiff seeks to join them to a timely filed lawsuit on his original, exhausted claims, because it would be burdensome and wasteful to require a plaintiff to file a new EEOC charge instead of simply permitting him to assert that related claim in ongoing proceedings to adjudicate the underlying charge. But there is no compelling reason-efficiency-related or otherwise-to grant a similar exception to a plaintiff like Duplan, who deliberately abandoned his underlying claim of discrimination by failing to file a timely suit on those claims. Accordingly, we reject Duplan's argument that we *625 should consider the alleged acts of retaliation that were not timely presented to the EEOC after he failed to file a timely suit on the charges submitted in his 2011 EEOC complaint. Instead, we consider only those acts that occurred within 300 days of his 2014 EEOC complaint, and were thereby properly exhausted, as well as related claims of retaliation for filing the later EEOC charge.
2. Merits of the Exhausted 2011 Retaliation Claims
Retaliation claims under Title VII are analyzed pursuant to the well-known
McDonnell Douglas
burden-shifting framework.
Littlejohn
,
To adequately plead causation, "the plaintiff must plausibly allege that the retaliation was a 'but-for' cause of the employer's adverse action. ... 'But-for' causation does not, however, require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive."
Vega
,
Relying on
Grant v. Bethlehem Steel Corporation
,
Moreover, the bulk of the cases on which Duplan relies involved events that occurred only at specific, regularly scheduled or anticipated times that would present a particular opportunity for retaliatory conduct, such as annual performance reviews, tenure evaluations, or a deliberate decision not to rehire a plaintiff at the same time that other similarly situated workers were brought back on board. 11 Duplan, by contrast, contends that the City was lying in wait for opportunities to retaliate against him that may or may not have ever occurred. His "first available opportunity" theory would require us to find it plausible that the City's plan to retaliate against him included, among other things, biding its time for three years until a flimsy sexual harassment complaint finally gave it an excuse to suspend him.
But an inference of causation is more easily drawn when one considers the facts as a whole. We recognized in
Grant
that "proof of causal connection can be established indirectly by showing that protected activity is followed by discriminatory treatment."
B. Retaliation Following the 2014 Complaints
Duplan also alleges that he suffered retaliation after making his 2014 complaints. Those allegations are deemed exhausted by the operation of the "reasonably related" rule. The City contends that those claims should nevertheless fail because Duplan failed to adequately allege that he suffered an adverse employment action following his 2014 complaints. We disagree.
An adverse employment action in a retaliation case includes conduct that is "harmful to the point that it could well
*627
dissuade a reasonable worker from making or supporting a charge of discrimination."
Shultz v. Congregation Shearith Israel
,
C. Hostile Work Environment Claim
Finally, Duplan contends that he was subjected to a hostile work environment in retaliation for his 2011 and 2014 complaints. "In order to establish a hostile work environment claim under Title VII, a plaintiff must produce enough evidence to 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 working environment."
Gorzynski v. JetBlue Airways Corp.
,
CONCLUSION
We have considered Duplan's remaining arguments and conclude that they are without merit. For the foregoing reasons, we VACATE those portions of the district court's judgment that dismiss Duplan's Title VII retaliation claims with respect to alleged adverse actions occurring within 300 days before, or shortly after, he filed his 2014 EEOC charge. We AFFIRM the judgment in all other respects, and REMAND for proceedings consistent with this opinion.
As discussed further below, we conclude that Duplan has only properly exhausted claims arising within 300 days of his second EEOC complaint. Accordingly, our discussion of the facts focuses on that time-period.
A few years after the 1991 amendment, we observed that there was some "ambiguity" about whether § 1981 now provided a private right of action against state actors, but did not resolve the issue.
Anderson v. Conboy
,
See
Buntin v. City of Boston
,
See, e.g.
,
Buntin
,
See, e.g.
,
Brown
,
See, e.g.
,
Campbell
,
See, e.g.
,
McGovern
,
The three-hundred-day look-back period is in fact an extended period that Title VII affords to plaintiffs complaining about conduct that occurred in a state with its own antidiscrimination enforcement mechanisms, which includes New York. As we explained more fully in
Ford v. Bernard Fineson Development Center
,
Discrimination claims under Title VII and the ADEA must ordinarily be "filed" with the EEOC within 180 days of the date on which the "alleged unlawful employment practice occurred." 42 USC § 2000e-5(e)(1) ; see29 USC § 626 (d)(1). However, if the alleged discrimination took place in a state or locality that has its own antidiscrimination laws and an agency to enforce those laws, then the time period for "fil[ing]" claims with the EEOC is extended to 300 days. 42 U.S.C. § 2000e-5(e)(1) ;29 U.S.C. §§ 626 (d)(2), 633(b). In this case, the discrimination alleged by [the plaintiff] took place in New York, which has both antidiscrimination laws and an antidiscrimination agency. The 300-day limit therefore applies.
Duplan also suggests that his circumstance is analogous to the facts in
Shah
. It is somewhat unclear whether the "related" retaliation at issue in
Shah
occurred while the plaintiff's EEOC investigation was on-going, or just after his federal case was filed, but in any event, all of the conduct took place while Shah was in the course of diligently pursuing his underlying, related claims.
See
This outcome is also consistent with the reasoning behind our recent opinion in
Soules v. Connecticut, Dep't of Emergency Servs. & Pub. Prot.
,
Each discrete adverse employment action caused by retaliatory animus constitutes a separate "unlawful employment practice" that could give rise to a separate claim,
Nat'l R.R. Passenger Corp. v. Morgan
,
See, e.g.
,
Curcio v. Roosevelt Union Free Sch. Dist.
, No. 10-CV-5612 SJF AKT,
The district court determined that Duplan had not adequately alleged an adverse employment action, in part, because of the New York State agency's determination that some of the assignments about which Duplan complained fell within his civil service title. Even assuming that the district court properly took judicial notice of the state finding, it erred to the extent that it suggested that that finding might be dispositive of Duplan's Title VII claim. The state agency did not actually address all of the new, allegedly below-title tasks enumerated in Duplan's complaint, nor did it resolve Duplan's claim that the assignment of more menial tasks was linked to the reduction of his remaining substantive assignments. Duplan has thus plausibly alleged that the actions, taken together, sufficiently diminished his responsibilities. Once again, further factual development may lead to rejection of this claim, and we do not attempt to predict how the district court on summary judgment, or a jury at trial, might evaluate the facts after discovery.
Reference
- Full Case Name
- Louis M. DUPLAN, Plaintiff-Appellant, v. the CITY OF NEW YORK, Defendant-Appellee.
- Cited By
- 406 cases
- Status
- Published