1 17-2281 Richardson v. Manhattan N.Y.C. Transit Auth., Headquarters 

## 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 29 th day of March, two thousand eighteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge , PIERRE N. LEVAL, Circuit Judge , ANDREW L. CARTER, JR.,* District Judge

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__________________________________________ HALANA RICHARDSON, Plaintiff-Appellant , v. 17-2281

MANHATTAN NEW YORK CITY TRANSIT AUTHORITY, HEADQUARTERS, Defendant-Appellee

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* Judge Andrew L. Carter, Jr., of the United States District Court for the Southern District of New York, sitting by designation.2 FOR PLAINTIFF-APPELLANT: Halana Richardson, pr o se, New York, NY.

FOR DEFENDANT-APPELLEE: No appearance.

Appeal from a judgment of the United States District Court for the Southern District of New York (McMahon, C.J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED in part,

and the case is REMANDED for further proceedings consistent with this order. Plaintiff-appellant Halana Richardson, proceeding pro se , appeals from a judgment dismissing her action against the New York City Transit Authority (“NYCTA”), in which she alleged sexual harassment and retaliation in viola tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court (McMahon, C.J. ) dismissed sua sponte Richardson’s amended complaint for failure to state a clai m under 28 U.S.C. § 1915(e )(2)(B)(ii) and denied leave to amend. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. “We review de novo a district court’s sua spont e dismissal under 28 U.S.C. § 1915(e)(2).” Hardaway v. Hartford Pub. Works Dep’t , 879 F.3d 486, 489 (2d Cir. 2018). To avoid dismissal, a complaint must plead “enough facts to state a clai m to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). “A claim has faci al plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). We afford a pro3 se litigant “special solicitude” by interpreting a complaint filed pro se “to raise the strongest claims that it suggests.” Hill v. Curcione , 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks and alterations omitted).

The district court concluded that Richards on did not plead “that any alleged adverse employment actions resulted from her engagement in activity protected u nder Title VII.” App. at 7. We agree. “To state a claim for retaliation in viol ation of Title VII, a pl aintiff must plead facts that would tend to show that: (1) she participat ed in a protected activity known to the defendant; (2) the defendant took an employment action disa dvantaging her; and (3) there exists a causal connection between the protected activity and the adverse action.” Patane v. Clark , 508 F.3d 106, 115 (2d Cir. 2007) (per curiam). Wh ile Richardson alleges that she lodged several co mplaints with NYCTA’s management, none of them supports a re taliation claim, either because they do not represent activity protected by Title VII or because Richardson makes no allegation that NYCTA took any adverse employment action against her as a re sult of such activity. Accordingly, we affirm the judgment to the extent it dismi ssed Richardson’s retaliation claim.

The district court also decide d that Richardson failed to al lege facts showing that the alleged harassment was “motivated [by] her race, color, sex, or any other impermissible factor.” App. at 7; see Brown v. Henderson , 257 F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work, whether through subjecti on to a hostile environment or through such concrete deprivations as being fired or being denied a promoti on, is actionable under Title VII only when it occurs because of an employee’s sex, or other protected charac teristic.”). However, we conclude that the amended complaint, interp reted “to raise the strongest claims that it4 suggests,” Hill , 657 F.3d at 122 (internal quotation marks and alterations omitted), does permit an inference that certain alleged actions were motivated by Richardson’s sex. Richardson alleged that she “was yelled at [a nd] called a ‘bitch’ . . . in front of other coworkers . . . because [she] would not entertain their advances, nor go out with them let alone have sex with these men.” Am. Compl. at 18, Richardson v. Manhattan Transit Auth. N.Y.C. Headquarters , No. 16-cv-1304-CM (S.D.N.Y. Feb 22, 2017), ECF No. 5 (“Am. Compl.”). One male coworker, who Richardson alleged was “infat uated with [her]” (and whom she had reported for unrelated misconduct), allegedly posted notices calling her a “SNITCH BITCH” and took other actions to intimidate her, such as urinating in a booth while she was insi de and bumping her hard enough to knock her down. Id. ; see Raniola v. Bratton , 243 F.3d 610, 622 (2d Cir. 2001) (“[P]rior derogatory comments by a co-worker may permit an inference that further abusive treatment by the same person was motivated by the same sex- bias manifested in the earlier comments.”). Richardson alleged that a supervisor “left the not ices up for viewing,” and that her “coworkers[,] especially the male coworkers[,] mocked [her] w ith the very words that were on the [notices].” Am. Compl. at 18. Richardson also alleged that she “would not entertain” another male coworker’s “verbal advances asking [her] about [her] clothi ng and hair,” which angered him, and that he physically pushed past her in an intimidating manner. Id. at 15, 17. She further alleged that a supervisor told her to give that coworker “the benefit of the doubt” during a meeting attended by many male coworkers, which she understood as th e supervisor giving permission for further

harassment. Id. at 15; cf. Howley v. Town of Stratford , 217 F.3d 141, 154 (2d Ci r. 2000) (explaining that a supervisor’s derogatory comment about a plai ntiff in front of her ma le coworkers heightened its discriminatory impact).5 Given those allegations, we respectfully conc lude that Richardson’s Title VII claim for

discrimination should not have been dismissed on the basis that she failed to allege facts permitting an inference that the alleged mi streatment occurred because of her sex, and we vacate the judgment

to the extent that it dismissed that claim. 1 For the foregoing reasons, the judgment is AFFIRMED to the extent it dismissed

Richardson’s Title VII claim for retaliation and VACATED to the extent it dismissed

Richardson’s Title VII claim for di scrimination because of sex. We REMAND for further proceedings consistent with this order.

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

1 In dismissing the amended complaint for failure to state a claim, the district court noted that Richardson failed to show that she had exhaus ted her administrative remedies. However, in another case decided by this Court af ter the district court’s ruling here , we held that the failure to plead exhaustion of administrative remedies doe s not justify dismissing a complaint sua sponte because “the burden of pleadi ng and proving Title VII exhausti on lies with defendants and operates as an affirmative defense.” Hardaway , 879 F.3d at 491.