24-2499-cv Matthews v. Rasa

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of December, two thousand twenty-five.

PRESENT: ROBERT D. SACK, MYRNA PÉREZ, Circuit Judges, VINCENT L. BRICCETTI, District Judge. * _____________________________________

Susan Matthews,

Plaintiff-Appellant,

v. 24-2499

* Judge Vincent L. Briccetti, of the United States District Court for the Southern District of New York, sitting by designation. Inspector Paul Rasa, Unknown Employees, City of New York,

Defendants-Appellees,

New York Police Department,

Defendant. _____________________________________

FOR PLAINTIFF-APPELLANT: SUSAN MATTHEWS, pro se, Staten Island, NY.

FOR DEFENDANTS-APPELLEES: KARIN WOLFE, Assistant Corporation Counsel, (Rebecca L. Visgaitis, on the brief), for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Ho, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court is

AFFIRMED.

2 Susan Matthews, pro se, appeals from the District Court’s judgment

dismissing her employment discrimination action against her former employer,

the City of New York, and her former supervisor, Inspector Paul Rasa.

Matthews sued the City and Rasa under Title VII of the Civil Rights Act of 1964

(“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the New

York State Human Rights Law (“NYSHRL”), and the New York City Human

Rights Law (“NYCHRL”), alleging that she was discriminated against when she

was passed over for promotions and subjected to a hostile work environment

and that she suffered retaliation after making complaints of discrimination.

The Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss

Matthews’s amended complaint. The District Court granted the motion,

dismissed Matthews’s amended complaint for failure to state a claim, declined

to exercise supplemental jurisdiction over her state and local law claims, and

denied further leave to amend. Matthews v. City of New York, No. 23-CV-3959,

(S.D.N.Y. Sep. 10, 2024). We assume the parties’ familiarity

with the remaining facts, the procedural history, and the issues on appeal.

3 “We review de novo a district court’s dismissal of a complaint pursuant to

Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations

in the complaint as true, and drawing all reasonable inferences in the plaintiff’s

favor.” Mazzei v. The Money Store,

(2d Cir. 2023) (quoting Green

v. Dep’t of Educ. of N.Y.C.,

(2d Cir. 2021)). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’”

(quoting

Ashcroft v. Iqbal,

(2009)). “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal,

(citation omitted).

“[T]he tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.”

Because Matthews “has

been pro se throughout, [her] pleadings and other filings are interpreted to raise

the strongest claims they suggest.” See Sharikov v. Philips Med. Sys. MR, Inc.,

(2d Cir. 2024).

4 The District Court properly dismissed Matthews’s amended complaint for

failure to state claims of discrimination, hostile work environment, or retaliation

under Title VII or the ADEA.

I. Discrimination & Hostile Work Environment

First, we agree that Matthews failed to state a Title VII discrimination

claim. To state a Title VII discrimination claim “absent direct evidence of

discrimination, what must be plausibly supported by facts alleged in the

complaint is that the plaintiff [(1)] is a member of a protected class, [(2)] was

qualified, [(3)] suffered an adverse employment action, and [(4)] has at least

minimal support for the proposition that the employer was motivated by

discriminatory intent.” Buon v. Spindler,

(2d Cir. 2023)

(alterations in original) (quoting Littlejohn v. City of New York,

(2d Cir. 2015)).

Here, Matthews failed to allege facts that would give rise to even a

minimal inference of discrimination on the basis of her race or color. Matthews

alleged that Black and Hispanic colleagues were promoted, while she and

another white colleague were not. But Matthews failed to offer any details to

5 suggest that “she was similarly situated in all material respects” to these

promoted colleagues. See Mandell v. Cnty. of Suffolk,

(2d Cir.

2003) (citation omitted).

Matthews also asserted that the NYPD “secretly manufacture[d]” job titles

for “minority” employees in order to pay them higher salaries. However, as the

District Court explained, these allegations were conclusory and speculative.

See Iqbal,

(“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”).

Second, we agree that Matthews failed to state a discrimination claim

under the ADEA. “[T]o defeat a motion to dismiss or a motion for judgment on

the pleadings, an ADEA plaintiff must plausibly allege that [s]he would not have

been terminated but for h[er] age.” Lively v. WAFRA Inv. Advisory Grp., Inc.,

, 303 (2d Cir. 2021). Here, Matthews did not allege facts suggesting

that her age was a but-for cause of the NYPD’s decisions to deny her a promotion

or raise. Her assertions of age discrimination were conclusory.

Third, for the same reasons, we agree that Matthews failed to state a hostile

work environment claim under Title VII or the ADEA. It is “‘axiomatic that

6 mistreatment at work, whether through subjection to a hostile environment or

through [other means], is actionable under Title VII only when it occurs because

of an employee’s . . . protected characteristic,’ such as race or national origin.”

Rivera v. Rochester Genesee Reg’l Transp. Auth.,

(2d Cir. 2014)

(alteration in original) (quoting Brown v. Henderson,

(2d Cir.

2001)). The same applies for a hostile work environment claim under the

ADEA: “A plaintiff must . . . demonstrate that she was subjected to the hostility

because of her membership in a protected class.” Kassner v. 2nd Ave. Delicatessen

Inc.,

(2d Cir. 2007) (citation omitted). Here, as described

above, Matthews’s allegations did not plausibly suggest that any of the alleged

events occurred because of her race, color, or age.

II. Retaliation

We further agree that Matthews failed to state a retaliation claim under

Title VII or the ADEA. Both Title VII and the ADEA prohibit retaliation and

“the same standards and burdens apply to claims under both statutes.” Kessler

v. Westchester Cnty. Dep’t of Soc. Servs.,

(2d Cir. 2006). To

establish a prima facie claim of retaliation, a plaintiff must show “(1)

7 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.” Hicks v. Baines,

(2d Cir. 2010) (quoting Jute v. Hamilton Sundstrand Corp.,

(2d Cir. 2005)).

We need not address the first two requirements, although the parties at

least agree that the alleged filing of an EEOC complaint constitutes a protected

activity. The retaliation claims fail because Matthews does not satisfy the third

and fourth requirements: an adverse employment action that is causally related

to the protected activity. For a Title VII or ADEA retaliation claim, an adverse

employment action is conduct that “well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” See Banks v.

Gen. Motors, LLC,

(2d Cir. 2023) (quoting Burlington N. & Santa

Fe Ry. Co. v. White,

(2006)). Here, the sole allegations which post-

date the protected filing of an EEOC complaint, and therefore can possibly have

a causal relationship with that filing, relate to an “angry and nasty” meeting, the

8 removal of COVID-19 barriers in an open area near Matthews’s desk, and an

incident where another employee was “staring” at Matthews at work.

Individually, these allegations do not constitute adverse employment

actions. See, e.g., Carr v. N.Y.C. Transit Auth.,

(2d Cir. 2023)

(characterizing a claim premised, in part, on a “hostile tone in emails,” which

“were the result of generally applicable workplace policies,” as insufficient);

Tepperwien v. Entergy Nuclear Operations, Inc.,

(2d Cir. 2011)

(noting that yelling and staring are insufficient). And to the extent Matthews

relies on a cumulative theory of constructive discharge to satisfy the requirement

of an adverse employment action for her retaliation claim, the allegations

similarly fail. See Spence v. Md. Cas. Co.,

, 1156 (2d Cir. 1993) (“Nor

is the test merely whether the employee’s working conditions were difficult or

unpleasant.”).

III. Supplemental Jurisdiction and Leave to Amend

The District Court did not abuse its discretion by declining to exercise

supplemental jurisdiction over Matthews’s remaining NYSHRL and NYCHRL

claims. See Kolari v. N.Y.-Presbyterian Hosp.,

, 122 (2d Cir. 2006).

9 The District Court also properly denied Matthews further leave to amend as

futile. See Cuoco v. Moritsugu,

(2d Cir. 2000).

We have considered Matthews’s remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the judgment of the District Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

10