Sosa v. Medstaff, Inc. et al, No. 1:2012cv08926 - Document 32 (S.D.N.Y. 2013)
Court Description: MEMORANDUM AND ORDER granting 22 Motion to Dismiss. For the foregoing reasons, the Cross Country Defendants' motion to dismiss Sosa's complaint is granted. First, the Cross Country Defendants' status as one of the plaintiff's jo int employers does not automatically confer liability for the conduct of the other employer, and Sosa has pled nothing to suggest that Vargas's conduct should be imputed to the Cross Country Defendants. Second, even if there was such an imputati on, Vargas's statements and actions would be insufficient to constitute race-based discrimination under Title VII, § 1981, or the NYCAC. Third, the plaintiff has not stated a plausible claim for retaliation, as we find that he could not hav e reasonably believed that he was protesting unlawful discrimination when he lodged his complaints. Finally, the threadbare assertions of aider and-abettor liability under the NYCAC are insufficient to survive this motion to dismiss. The Clerk of the Court is respectfully directed to terminate the motion pending at docket number 22. (Signed by Judge Naomi Reice Buchwald on 12/12/2013) Copies Mailed By Chambers. (ft) Modified on 12/13/2013 (ft).
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Sosa v. Medstaff, Inc. et al Doc. 32 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------X EDGAR SOSA, Plaintiff, MEMORANDUM AND ORDER -against MEDSTAFF, INC., CROSS COUNTRY HEALTHCARE, INC., CORNELL UNIVERSITY, WEILL CORNELL MEDICAL COLLEGE, ADELA VARGAS, GUY MAZZA, DAVID GREENE, and ISABEL STANSHINE, 12 Civ. 8926 (NRB) Defendants. ----------------------------------X NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE Plaintiff Edgar Sosa (“Sosa”) brings this action against defendants Cross Country Healthcare, Inc. (“Cross Country”), Medstaff, Inc. (“Medstaff”)1, David Greene (“Greene”), and Isabel Stanshine (“Stanshine”) (collectively, the “Cross Country Defendants”), as well as Cornell University (“Cornell”), Weill Cornell Medical College (“Weill”), Adela Vargas (“Vargas”), and Guy Mazza (“Mazza”), alleging discrimination pursuant to 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”), and the New York City Administrative Code § 8-107 et seq. (the “NYCAC”). Sosa claims that he was subjected to disparate treatment and a hostile work environment on account of 1 Although Medstaff is now known as Local Staff LLC, the Court will use the terminology used by the plaintiff in his amended complaint. Dockets.Justia.com his race, and that he was ultimately terminated in retaliation for complaining about his treatment. Presently before the Court is the Cross Country Defendants’ motion to dismiss Sosa’s amended complaint in its entirety for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Cross Country Defendants’ motion is granted. BACKGROUND2 I. The Defendants Defendant Cross Country is a headquartered in Boca Raton, Florida. Mem. at 2. Delaware corporation Am. Compl. ¶ 10; Defs.’ Cross Country is a holding company that owns non- defendant Cross Country defendant Medstaff. Staffing, Am. Compl. Inc., ¶ 12; which in Defs.’ turn Mem. owns at 2. Medstaff acts as a staffing service, providing nurses to its clients (such as hospitals) to fill positions on a temporary basis. Am. Compl. ¶ 11; Defs.’ Mem. at 2. defendant Weill, the research defendant Cornell University. unit and One such client was medical school of Am. Compl. ¶ 14-15. 2 The Court draws the following facts from the plaintiff’s Amended Complaint (“Am. Compl.”), which we assume to be true for the purposes of this motion. See Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 154 (2d Cir. 2006). To the extent necessary for context, we have also drawn from Cross Country Defendants’ Memorandum of Law in Support of its Motion to Dismiss (“Defs.’ Mem.”). -2- Sosa also complaint. names four individual defendants in his Two were employed by Weill and Cornell during the relevant time period: Vargas, who worked as the Administrative Coordinator and Office Manager, and Mazza, who was a Senior Employee Relations Specialist. Id. ¶ 17, 19. The other two, defendants Greene and Stanshine, were employed by Cross Country and Medstaff as a Clinical Liaison and as the Vice President of Medical Services, respectively. Id. ¶ 21, 23. Greene and Stanshine, along with Cross Country and Medstaff, have brought the motion to dismiss currently before the Court. this Memorandum and Order, these four Throughout defendants are collectively referred to as the “Cross Country Defendants.” II. Factual Background In early 2012, Sosa began working for Medstaff as an oncology nurse, and on or about March 5, 2012, he was placed at Weill. Id. ¶ 26-27. per month. Id. For his services, Medstaff paid Sosa $3400 According to Sosa, for about two months, he “was an exemplary employee,” receiving compliments for his work and no indications of poor performance. In early May 2012, defendant Id. ¶ 29. Vargas, Sosa’s direct supervisor at Weill, approached the plaintiff and said “You look -3- like Urckle,” then snickered and walked away.3 Mem. at 2. absolutely Sosa no then reason,” claims that Vargas “You’re so street, Eddie. on Id. ¶ 34; Defs.’ May commented to You’re so street.” 25, 2012, the “for plaintiff, Am. Compl. ¶ 35. Sosa believed that this statement implied that he must have grown up “on the streets” because of his race. Id. In response to these statements, on May 28, 2012, Sosa attempted to complain to defendant Mazza, Weill’s Senior Specialist, but was unable to reach him. Employee Relations Instead, he lodged his complaint with non-defendant Angela Charter (“Charter”), Weill’s Associate Director of Employee Relations. Beginning Vargas began two days avoiding after the Sosa’s plaintiff, Id. ¶ 36. grievance refusing to to Charter, make contact and communicating with him through intermediaries. ¶ 38-39, 41. this time eye Id. The plaintiff complained again on June 1, 2012, speaking directed to Mazza and telling him that “Vargas ha[d] subjected him to discrimination on the basis of race and was now retaliating against him for complaining.” ¶ 40. Id. In the days that followed, Sosa claims that Vargas began micromanaging his work and continued to ignore him. Id. ¶ 41. On June 6, 2012, the plaintiff complained for a third time, this 3 The Court assumed that the “Urckle” statement was intended to compare Sosa, who self-identifies as Latino, to Steve Urkel, a character from the television show Family Matters, who is black. -4- time to defendant Greene, about Vargas’s conduct. Id. ¶ 42. That same day, Mazza contacted Sosa and told him that “the issue has been resolved and this will never happen again.” There is no indication that Vargas continued to Id. ¶ 43. ignore or micromanage the plaintiff, or made any discriminatory comments toward him, after June 6, 2012. Defs.’ Mem. at 3. Two days later, on June 8, 2012, Sosa again complained to Greene, Cross Country’s Clinical Liaison, who responded by telling the plaintiff that he would “investigate the matter.” Am. Compl. ¶ 46. Later that day, Greene heard from Vargas that Weill was terminating the plaintiff’s employment at the hospital due to medical his loud error. singing, Id. ¶ loud 47; speech, Defs.’ Mem. and at commission 4. Greene of a then informed Sosa of his termination from Weill and also suspended him from Medstaff for six months. Am. Compl. ¶ 47, 50. On June 11, 2012, Sosa called defendant Stanshine to discuss the matter. He left a voicemail, and the two of them never spoke. Id. ¶ 51. III. Procedural Background Sosa allegations filed a above charge with of the discrimination Equal based Employment on the Opportunity Commission, and he received his right to sue on November 28, 2012. Id. 5-6. Sosa first filed his complaint with this Court on December 10, 2012 and amended the complaint on February 4, -5- 2013. The amended plaintiff complaint alleges based eight on causes of action allegations of in the race-based discrimination and subsequent retaliation after Sosa complained about his treatment. The Cross Country Defendants moved to dismiss the amended complaint on March 29, 2013. DISCUSSION I. Legal Standard When deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court will accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). Nevertheless, a plaintiff’s factual allegations “must be enough to raise a right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal claims citation across the omitted). line from If she has conceivable plaintiff’s] complaint must be dismissed.” not to “nudged plausible, [her] [the Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (applying Twombly to “all civil actions,” including discrimination suits). II. Joint Employer Liability The plaintiff claims that the Cross Country Defendants should be liable under Title VII, § 1981, and the NYCAC for -6- race-based discrimination. Because there is no allegation that any Defendants of the Cross Country made any discriminatory comments, took any discriminatory actions, or were even aware of Sosa’s allegations before June 6, 2012, the threshold issue is whether the Cross Country Defendants can be liable for the conduct of defendants Cornell, Weill, Vargas, and Mazza. Sosa proposes paradigmatic joint that his employer case presents situation” in “a which virtually the Cross Country Defendants, as a staffing agency, should be held liable for the actions of the worksite employer. Opp’n to Defs.’ Mot. to Dismiss at 8. Pl. Mem. of Law in In determining whether a joint employer relationship exists, “[r]elevant factors include the commonality of hiring, firing, discipline, pay, insurance, records, and supervision.” N.L.R.B. Inc., 38 F.3d 93, 94 (2d Cir. 1994). v. Solid Waste Servs., As a functional matter, courts evaluate whether a joint employer relationship exists by considering “the control that [the employers] exercise over the employee in setting the terms and conditions of the employee’s work.” See Gore v. RBA Grp., No. 03-CV-9442 (KMK)(JCF), 2008 WL 857530, at *4 (S.D.N.Y. Mar. 31, 2008). In the staffing agency context, “a person whose salary is paid by one entity while his services are engaged on a employee of both entities.” temporary basis by another is an Amarnare v. Merrill Lynch, Pierce, -7- Fenner & Smith, Inc., 611 F. Supp. 344, 349 (S.D.N.Y. 1984) (emphasis added); see DeWitt v. Lieberman, 48 F. Supp. 2d 280, 288 (S.D.N.Y. 1999). In this case, defendant Cross Country, through defendant Medstaff, paid Sosa $3400 per month during his placement at Weill. While this arrangement does not demonstrate that Medstaff and Cross Country exercised significant “control” over the plaintiff, the payment structure at the very least “raise[s] the possibility” that Medstaff and Cross employers along with Weill and Cornell. Org., No. 03 Civ. 4441(GEL), 2004 WL Country were joint Nelson v. Beechwood 2978278, at *5 (S.D.N.Y. Dec. 21, 2004). But this is not the end of the inquiry. companies are deemed a joint employer, . “Even where two . . it is not necessarily the case that both are liable for discriminatory conduct.” 2009). Lima v. Addeco, 634 F. Supp. 2d 394, 400 (S.D.N.Y. In evaluating alleged discriminatory activity in the joint-employment context, the appropriate focus is on the actual decisionmaker -- the conduct of one employer cannot necessarily be imputed to the other. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 89 (2d Cir. 2005); Dawson v. Bumble & Bumble, 398 F.3d 211, 224-25 (2d Cir. 2005); cf. Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 199 (2d Cir. 2005) (“[W]hen the circumstances -8- of one employee’s employment justify the conclusion that she is being employed jointly by two distinct employers, it does not follow that all the employees of both employers are part of an integrated entity encompassing both.”). In this case, Sosa has not pled any facts indicating that the Cross Country Defendants should be held liable for allegedly discriminatory and hostile conduct by Vargas. the First, Vargas is the only defendant who the plaintiff claims made any discriminatory comments, and she is not alleged to have had contact, much less a relationship, with any of the Cross Country Defendants. Am. Compl. ¶ 17. Second, Sosa makes no assertion that the Cross Country Defendants were in a position to control the activities of Vargas or any other Weill employee. See Williamson v. Adventist Health Sys./Sunbelt, Inc., No. 6:08-cv32-Orl-31GKJ, 2009 WL 1393471, at *4 (M.D. Fla. May 18, 2009) (refusing to hold a medical staffing company liable for the allegedly discriminatory conduct of hospital employees against a nurse placed at the hospital by the company). Third, the plaintiff makes no allegation that the discriminatory treatment continued after complained to Vargas. June Greene 6, and 2012, made the him date aware of when the Sosa issues first with Thus, the Cross Country Defendants cannot be liable in this case based on their “fail[ure] to take corrective measures -9- within [their] control.” Lima, 634 F. Supp. 2d at 402 (quoting Watson v. Adecco Emp’t Servs., Inc., 252 F. Supp. 2d 1347, 1357 (M.D. Fla. 2003)). Accordingly, even if the Cross Country Defendants were the plaintiff’s joint employer, Sosa has not pled facts sufficient to hold them vicariously liable for the actions of Cornell, Weill, Vargas, and Mazza under Title VII, § 1981, and the NYCAC. III. Race-Based Discrimination Claims Even assuming that the Cross Country Defendants could be liable for the other defendants’ conduct, Sosa’s claims of discrimination and hostile work environment are still fatally flawed. In the employment context, it is not necessary for the plaintiff to plead specific facts establishing a prima facie case for discrimination in order to survive a motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). However, in light Twombly and Iqbal, the “continued viability” of the generous doubt. Swierkiewicz pleading standard has been called into Schwab v. Smalls, 435 Fed. App’x 37, 40 (2d Cir. 2011). At this point, while it may not be necessary to include specific facts in the complaint, “dismissal is nevertheless appropriate where the plaintiff ‘failed to allege even the basic elements of a discriminatory action claim.’” -10- Maldonado v. George Weston Bakeries, 441 Fed. App’x 808, 809 (2d Cir. 2011) (quoting Patane v. Clark, 508 F.3d 106, 112 n.3 (2d Cir. 2007)). A. Disparate Treatment4 One such “basic element” of a claim of disparate treatment on the basis of race is that the plaintiff must plead “facts that would create an inference that any adverse action taken by any defendant was based upon [a protected characteristic of the plaintiff].” Kouakou v. Fideliscare N.Y., 920 F. Supp. 2d 391, 398 (S.D.N.Y. 2012) (internal quotation mark omitted) (citations omitted) (alteration in original). “adverse action,” ‘materially adverse the employment change in the In order to qualify as an action terms “must and cause a conditions of employment’ and not just ‘mere inconvenience.’” Patane, 508 F.3d at 112 (quoting Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir. 2005)). While Sosa complains about his treatment at the hands of many of the defendants, the only “adverse actions” to which he was subjected were his termination from Weill/Cornell and his suspension from Medstaff/Cross Country. 4 Sosa’s claims that The disparate treatment analysis is the same for claims brought under Title VII, § 1981, and the NYCAC. See Ewing v. Coca Cola Bottling Co. of N.Y., Inc., No. 00 CIV. 7020(CM), 2001 WL 767070, at *5 (S.D.N.Y. June 25, 2001) (“[D]isparate treatment claims under Title VII, and disparate treatment claims under § 1981, are analyzed under the same approach.”); Weinstock v. Columbia Univ., 22 F.3d 33, 42 n.1 (2d Cir. 2000) (noting that “identical standards apply to employment discrimination claims” brought under Title VII and the NYCAC). -11- Vargas averted his eyes and gave him the “silent treatment” after his initial complaints do not rise to the level of an “adverse action.” See Carpenter v. City of Torrington, 100 Fed. App’x 858, 860 (2d Cir. 2004); Miksic v. TD Ameritrade Holding Corp., No. 12 Civ. 4446(AJN), 2013 WL 1803956, at *4 (S.D.N.Y. Mar. 7, 2013). There is nothing in the complaint to suggest that Sosa’s termination and suspension were based on race. states himself solely in that “Defendants retaliation for terminated complaining of In fact, Sosa [his] discrimination retaliation.” Am. Compl. ¶ 58 (emphasis added). assertions the in complaint are true, employment Sosa and Assuming the was terminated because he complained, and for that reason alone;5 there is no allegation that his termination was in any way motivated by racial animus. See Patane, 508 F.3d at 112 (dismissing a Title VII discrimination claim when the plaintiff characterized her mistreatment at work as purely retaliatory and not based on her gender). For these reasons, the Court dismisses the plaintiff’s claims of disparate treatment on the basis of race. B. Hostile Work Environment To state a Title VII claim for hostile work environment, a plaintiff must plead that the 5 conduct at issue: (1) The Court will address the merits of the plaintiff’s retaliation claims infra. -12- was sufficiently hostile or hostile or severe abusive abusive or pervasive environment, to (2) environment, create an objectively created a subjectively and (3) created such an environment because of the plaintiff’s protected characteristic. See Patane, 508 F.3d at 113; Kouakou, 920 F. Supp. 2d at 401-02. “[T]he standards applicable to the conduct alleged to constitute hostile work environment in violation of Title VII are also applicable to . . . employment claims under § 1981.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004); see also Liburd v. Bronx Lebanon Hosp. Ctr., No. 07 Civ. 11316(HB), 2008 WL 3861352, at *8 (S.D.N.Y. Aug. 19, 2008) (applying Patterson in context of a motion to dismiss). Even if Vargas’s comments could be imputed to the Cross Country Defendants, Sosa still would fail to state a claim for hostile work environment under Title VII and § 1981 based on the first prong of the test. The plaintiff must demonstrate “either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)) (internal quotation marks omitted). “Isolated acts, unless very serious, do not meet the threshold of severity or -13- pervasiveness.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002; see also Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 318 (2d Cir. 1999) (“Isolated, minor acts or occasional episodes do not warrant relief.”). In this case, Sosa has identified only two comments as contributing to a hostile work environment: “You look like Urckle” and “You’re so street, Eddie.” First, two comments certainly -- do not qualify as “pervasive” “a few isolated instances” of mistreatment are certainly not equivalent to “a steady barrage of opprobrious racial comments.” of Avon, 118 F.3d 106, 110 (2d Cir. 1997). from a single source were considered Schwapp v. Town If two statements “pervasive,” it would render the statutory requirement meaningless. Thus, because his claim is based on only two comments, those statements must be “sufficiently severe to overcome [the] lack of pervasiveness.” Mormol v. Costco Wholesale Corp., 364 F.3d 54, 59 (2d Cir. 2004). fails. television The first character stereotypically On this ground, too, the plaintiff statement whose “nerdy,” an likens appearance attribute Sosa is to a notable unrelated to non-Latino for being his race. Hearing this comment is clearly not the sort of situation that “intolerably alter[s]” Sosa’s work environment. Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000). And the second -14- statement, while potentially discriminatory,6 is not an explicit racial slur, a threat, or something especially humiliating. To sanction Vargas’s comments as “severe” would undermine the aims of Title VII, as well as the past and future plaintiffs have been and will discrimination. be subjected to legitimate workplace Thus, the plaintiff’s hostile work environment claims against the Cross Country Defendants pursuant to Title VII and § 1981 are dismissed. However, the plaintiff correctly notes that the NYCAC is more liberal than its federal counterparts. “[E]ven if the harassing conduct does not rise to the level of being ‘severe and pervasive,’” NYCAC. an employer may still be liable under the Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013) (citing Williams v. N.Y. City Hous. Auth., 872 N.Y.S. 2d 27, 38 (1st Dep’t 2009)). The city statute asks whether the plaintiff “was ‘treated less well than other employees’ because of her protected status.” Margaret Walsh Nursing Home Co., Inc., Ochei v. The Mary No. 10 Civ. 2548(CM)(RLE), 2011 WL 744738, at *4 (S.D.N.Y. Mar. 1, 2011) (quoting Williams, 872 N.Y.S. 2d at 39). 6 Although the term “street” is not defined in the complaint and may not be categorically negative, the Court believes that calling someone “street” may have demeaning connotations akin to labeling someone as “ghetto.” -15- However, the NYCAC is only plaintiff-friendly to a point. “[T]he broader purposes of the [NYCAC] do not connote an intention that the law operate as a ‘general civility code.’” Williams, 872 N.Y.S. 2d at 40 (quoting Oncale Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). v. Sundowner If the conduct at issue “consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences,” then the defendant should not be held liable. Caravantes v. 53rd St. Partners, Inc., No. 09 Cv. 7821(RPP), 2012 WL 3631276, at *17 (S.D.N.Y. Aug. 23, 2012) (quoting Williams, 872 N.Y.S. 2d at 40). The statements cited in Sosa’s complaint do not approach the level of an actionable hostile work environment claim under the NYCAC. We accept that the plaintiff disgusted” by Vargas’s comments. was “offended Am. Compl. ¶ 35. and We also believe that the “You’re so street” comment was better left unsaid. However, this statement and the even more innocuous “You look like Urckle” line are “of such a minimal character” that they amount inconveniences.” to just “petty slights or trivial Daigne v. N.Y. Life Ins. Co., No. 09 Civ. 5157 (GBD)(GWG), 2010 WL 5625829, at *17 (S.D.N.Y. Dec. 8, 2010). The “short litany of a few incidents” recited by Sosa does not describe a work environment that is hostile as a matter of law, -16- even under the especially broad NYCAC. at *5. Ochei, 2011 WL 744738, Thus, the plaintiff’s hostile work environment claims against the Cross Country Defendants under the NYCAC are also dismissed. IV. Retaliation Claims Having found that the Cross Country Defendants cannot be held liable for the actions of Weill, Cornell, Mazza, and Vargas and that Sosa’s race-based Cross Country Defendants turns to plaintiff’s multiple First, the types he of claims discrimination should dismissed, retaliation retaliation that be from Vargas claims the claims. many against Sosa different retaliated Court against the now alleges parties. him for complaining of supposedly discriminatory statements by “becoming increasingly avoidant,” refusing to speak directly with Sosa, and “micromanaging all of [his] work.” Second, the plaintiff claims Am. Compl. ¶ 38–39, 41. that his employment at Weill/Cornell was terminated for reasons that were “obviously false, clearly pretextual, lodging complaints. and blatantly Id. at ¶ 47-48. in retaliation” for Third, Sosa was allegedly suspended from Medstaff/Cross Country in retaliation for making the aforementioned complaints. Of these three See id. at ¶ 50-58. retaliation allegations, applies to the Cross Country Defendants. -17- only the third Regarding the first two, we have Defendants already cannot be established held liable that for the Cross Vargas’s Country comments and Weill’s decisions merely because Medstaff/Cross Country acted as a joint employer of the plaintiff. no allegation modicum conduct. of that control Id. the Cross over, See supra Part II. Country or were Defendants even aware There is exercised of, a Vargas’s Therefore, we dismiss the plaintiff’s retaliation claims against the Cross Country Defendants based on Vargas’s treatment of him and based on his termination from the hospital. However, the third claim of retaliation -- Greene’s suspension of Sosa from Medstaff/Cross Country -- can clearly be directly attributed to the Cross Country Defendants. “To establish a prima facie case of retaliation, an employee must show that (1) she was engaged in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and the adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012); see also Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205–06 (2d Cir. 2006). “Although a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss, the claim asserted must still be facially plausible and give fair notice -18- to the defendants of [its] basis.” Baez v. Visiting Nurse Serv. of N.Y. Family Care Serv., No. 10 Civ. 6210(NRB), 2011 WL 5838441, at *5 (S.D.N.Y. Nov. 21, 2011) (citation original). and quotation marks omitted) (alteration in Even considering this permissive facial plausibility standard, the plaintiff has still not stated a claim of unlawful retaliation under Title VII, § 1981, or the NYCAC.7 In applying the four-part prima facie test, Sosa satisfies the second, third, and fourth prongs. It is undisputed that the plaintiff complained to Greene about Vargas’s conduct, creating the requisite awareness. 17. See Am. Compl. ¶ 42; Defs.’ Mem. at It is also clear that a six-month suspension constitutes an adverse employment Regarding the relationship suspension action. final between mere hours prong, Sosa’s after See the Patane, extremely complaints the 508 second to F.3d close Greene complaint at 112. temporal and his creates an inference of a causal connection between those events. See Am. Compl. ¶ 43, 46-47; Gorzynski v. JetBlue Airways Corp., 586 F.3d 7 While the standards for retaliation claims under Title VII and § 1981 are the same, the NYCAC is more liberal. See Cook v. CBS, Inc., 47 Fed. App’x 594, 596 (2d Cir. 2002) (the prima facie case for retaliation is the same under § 1981 as it is under Title VII); Augustin v. Yale Club of N.Y. City, No. 03-CV-1924 (KMK), 2006 WL 2690289, at *29 (S.D.N.Y. Sept. 15, 2006) (noting that the NYCAC is broader than its federal counterparts). However, because the Court finds that Sosa did not engage in a “protected activity,” which is still a requirement under the NYCAC, his claim fails under all three statutes. See Mayers v. Emigrant Bancorp, Inc., 796 F. Supp. 2d 434, 446 (S.D.N.Y. 2011) (“The elements of retaliation under the [NYCAC] differ [from Title VII and § 1981] only in that the plaintiff need not prove any adverse employment action[.]”). -19- 93, 110 (2d Cir. 2010) (“[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action.”) (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001)). Thus, the retaliation final claim hurdle is to for Sosa to establish that his “protected activity” pursuant to Title VII. clear for complaints his were Under the statute, “[a] protected activity is an activity taken in good faith to protest Morgan or v. oppose N.Y. statutorily St. Attorney prohibited Gen. discrimination.” Office, No. 11 Civ. 9389(PKC)(JLC), 2013 WL 491525, at *9 (S.D.N.Y. Feb. 8, 2013). It is not necessary that the underlying conduct actually be unlawful; rather, it is sufficient if the plaintiff reasonable belief of the conduct’s illegality. Town of Manlius, 313 F.3d 713, 719 (2d had a See Treglia v. Cir. 2002). In considering the plaintiff’s perception, “mere subjective good faith belief is insufficient; the belief must be reasonable and characterized by objective good faith.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013) (quoting Sullivan-Weaver v. N.Y. Power Auth., 114 F. Supp. 2d 240, 243 (S.D.N.Y. 2000)). -20- “The reasonableness of the plaintiff’s belief is to be assessed in light of the totality of the circumstances.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998). Based on the facts alleged in the pleadings, we agree with the Cross Country Defendants’ assertion that Sosa “could not have objectively believed that he was opposing an unlawful employment practice when he complained to Greene,” because the problematic conduct was isolated and innocuous. 18. Defs.’ Mem. at Although the plaintiff’s pleading states that he complained to Greene about “all the racial discrimination and retaliation” that he experienced, Sosa actually had three distinct grievances: (1) the “Urckle” comment, (2) the “You’re so street” comment, and (3) Vargas’s treatment of the plaintiff after his initial complaint. Am. Compl. ¶ 46. We have already discussed our view that the first and third grievances are particularly minor, and the law states that “general allegations of mistreatment . . . do not support an inference that plaintiff had a reasonable good faith belief that [he] was subject to [racial] discrimination.” Drumm v. SUNY Geneseo College, 486 Fed. App’x 912, 914 (2d Cir. 2012). That leaves the “You’re so street” comment as the only potential basis for Sosa’s belief that he was opposing unlawful conduct when he complained to Greene. -21- The Court recognizes that Vargas’s comment was insensitive. Inc., 438 F. Supp. 2d 348, 365 See Thomas v. iStar Fin., (S.D.N.Y. 2006) (finding an employer’s comment to an employee that they were both “raised in the streets” false”). of petty to be “racially stereotyping, belittling, and But the challenge for Sosa is that, despite his list allegations, lone the “You’re example of so street” offensive comment conduct in is his ultimately the complaint. The Second Circuit has suggested that “one comment, standing alone” is insufficient to create a good-faith belief that a person has been subjected to workplace discrimination. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1179 n.12 (2d Cir. 1996); see also Riscili v. Gibson Guitar Co., 605 F. Supp. 2d 558, 566 (S.D.N.Y. 2009). And while other courts have found that a single comment could generate a reasonable belief of discrimination, the singular statements in those cases were far more offensive than the one at issue here. See, e.g., Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 190 (7th Cir. 1994) (where the comment was “if a nigger can do it, anybody can do it”); McDowell v. North Shore-Long Island Jewish Health System, Inc., 788 F. Supp. 2d 78, 79–82 (E.D.N.Y. 2011) (where plaintiff was threatened and the word “nigger” was used). Any reasonable employee would recognize that a stray remark, inappropriate but not abhorrent, does not violate the law; to find otherwise would -22- trivialize employment discrimination serious goals of such legislation. laws, undermining the Thus, Sosa’s retaliation claims against the Cross Country Defendants are dismissed. V. Aiding and Abetting Claims The plaintiff also claims that the Cross Country Defendants violated the NYCAC workplace conduct. by aiding and abetting Am. Compl. ¶ 85–87. discriminatory In order to be liable on this basis, the defendants “must have ‘actually participated in the conduct giving rise to the claim.’” Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 367 (S.D.N.Y. 2012) (quoting 2004)). Feingold v. New 366 York, F.3d 138, 157 (2d Cir. Here, Sosa has not made a single allegation that any of the Cross Country Defendants participated in Vargas’s allegedly discriminatory conduct in any way. Defendants could not have aided Moreover, the Cross Country or abetted the decision to suspend the plaintiff for six months, as individuals cannot aid See id. at 367–68 & n.7. or abet their own conduct. Therefore, we dismiss the aiding and abetting claims against the Cross Country Defendants. CONCLUSION For the foregoing reasons, the Cross Country Defendants’ motion to dismiss Sosa’s complaint is granted. Country Defendants’ status as one -23- of the First, the Cross plaintiff’s joint does employers not automatically confer liability for the conduct of the other employer, and Sosa has pled nothing to suggest that Vargas's conduct should be imputed to the Cross Country Second, Defendants. imputation, Vargas's even statements if and there was actions such would an be insufficient to constitute racebased discrimination under Title VII, 1981, or the NYCAC. § Third, the plaintiff has not stated a plausible claim for retaliation, as we find that he could not have reasonably believed that he was protesting discrimination when he lodged his complaints. unlawful Finally, the threadbare assertions of aider andabettor liability under the NYCAC are insufficient to survive this motion to dismiss. The Clerk of the Court is respectfully directed terminate the motion pending at docket number 22. SO ORDERED. Dated: New York, New York 2013 24- NAOMI REIC BUCHWALD UNITED STATES DISTRICT JUDGE to Copies of the foregoing Order have been mailed on this date to the following: Attorney for Petitioner Alex Umansky Esq. Phillips & Associates PLLC 30 Broad Street 35th Floor New York, NY 10004 I l l Attorney for Respondent Joseph C. OIKeefe Esq. Proskauer Rose LLP One Newark Center Newark, NJ 07102 l 25-
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