1

13

- 666

- cv G orokhovsky v. N.Y.C. Hous

. Auth

.

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 S quare, in the City of New York, on the 29 th day of January , two thousand fourteen

.

PRESENT:

J OSÉ A. C ABRANES
, R EENA R

AGGI
, S USAN L. C ARNEY

, Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x L YUDVIG G OROKHOVSKY

,
Plaintiff

- Appell ant ,

- v.

- No. 13

- 666

- cv

N EW Y ORK C ITY H OUSING A UTHORITY
, M ANAGER OF I SAAC H OLMES H OUSES
, (IHH) E FRAIM D IAZ
, IN HIS OFFICIAL

CAPACITY
, J EFFREY O TERO
, I SAA C H OLMES H OUSES S UPERVISOR
, D

AWN P INNOCK
, IN HER OFFICIAL CAPACIT Y
, NYCH D IRECTOR OF H UMAN R ESOURCES
, SUED IN HER

PERSONAL CAPACITY

, P AUL V ITALE
, N EW Y ORK C ITY H OUSING A

UTHORITY D IRECTOR
, SUED IN HIS OFFICIAL

CAPACITY
, G ISEL P

AULINO
, N EW Y

ORK C ITY H OUSING A UTHORITY C ARETAKER
, SUED IN HER PERSONAL CA PACITY
, W ILLIAM R ODRIGUEZ
, S UED IN HIS OFFICIAL CAPACITY
,
Defendant s

- Appell ee s ,2

C ITY OF N EW Y

ORK
,
Defendant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

FOR PLAINTIFF

- APPELLANT : Linda M. Cronin

, Cr onin & Byczek, LLP , Lake Success , NY

.

FOR DEFENDANT S

- APPELLEE S : Donna M. Murphy, for Kelly D. MacNeal, Acting General Counsel of the New York City Housing Authority

, New York , NY

.

Appeal from a judgment , entered May 19, 2011

, of the United States Distri ct Court for the

Southern District of New York ( Leonard B. Sand

, Judge

).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED IN PART AND
REVERSED IN PART

.

Plaintiff Lyudvig Gorokhovsky app eals from the judgment of the District Court dismissing his complaint in favor of defendant s

. Gorokhovsky ’s suit alleged that the New York City Housing Authority and its employees ( jointly , “NYCHA”) unlawfully engaged in employment discrimination based up on his race, national origin, and age; created a hostile work environment; and retaliated against him for exercising his First Amendment rights. He brought claims under the Age Discrimination in Employment Act , 29 U.S.C. §§ 6 2 1 et seq. (“ADEA”); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); 4 2 U.S.C. §§ 1981, 1983 and 1985; the New York State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL ”); the New York City Human Rights Law, N.Y.C. Admin. Code § § 8

- 101 et seq. (“NY CHRL”); and the First Amendment to the

United States Constitution. We assume the parties’ familiarity with the underlying facts, procedural history, and the issues on appeal.

We review a district court’ s Rule 12(b)(6) dismissal of a complaint de novo

. Se e Famous Horse

Inc. v. 5th Ave. Photo Inc. , 624 F.3d 106, 108 (2d Cir. 2010). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). Although all allega tions contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the cour t to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

The District Court granted defendants’ motion to dismiss the complaint as to all but one

claim for failure to exhaust administrative remedies, u ntimeliness , a nd failure to state a claim on3

which relief could be granted

. ( The single remaining claim was a discriminatory pay claim, which Gorokhovsky later voluntarily withdrew with prejudice. )

We reverse the District Court’s dismissal of the NYCHRL claim s assert ed in Count Nine

, because it improper ly applied the same standard as in its analysis of the ADEA, Title VII, and

NY S HRL claims. See Gorokhovsky v. City of New York

, No. 10 Civ . 8848 ( LBS ) , 2011 WL 2019423

, at
*6 n.5 (S.D.N.Y. May 19, 2011) (citing Leibowi tz v. Cornell Univ. , 584 F.3d 487, 498 n. 1 (2d Cir. 2009 )). However, as w e recently clarified

, the New York City Council changed the standard that applies to discrimination claims brought under the NYCHRL by statute in 2005. See Mihalik v. Credit Agricol e Cheuvreux N. Am., Inc. , 715 F.3d 102, 108

– 09 (2d Cir. 2013) (citing Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85 ). We held that claims under the NYCHRL are to be evaluated separately fr om federal and state law claims and given libe ral, independent construction. Id. at 109.

To state a claim for discrimination under the NYCHRL

, a plaintiff must only show differential treatment of any degree based on a discriminatory motive ; “ the NYCHRL does not require either materially adverse emp loyment actions or severe and pervasive conduct .” Id. at 114.

In a hostile work environment claim under the NYCHRL

, “ even ‘ a single comment ’ may be

actionabl e in appropriate circumstances.” Id. (quoting Williams v. N.Y.C. Hous. Auth. , 872 N.Y.S.2d 27, 4 0

– 41 & n.30 ( 1 st Dep’t 2009) )

. And to prevail on a retaliation claim under the NYCHRL, a plaintiff need only show that he “ took an action opposing [his] employer’ s discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a pers on from engaging in such action.” Id. at 112 (citation omitted)

.
At the pleadings stage and u nder such a liberal construction

, we conclude that Gorokhovsky

has st ated plausible claim s under the NYCHR L for discrimination on the basis of n ational origin and age; a hostile work e nvironment; and retaliation

. Accordingly, we reverse the District Court’s

dismissal of the NYCHRL claims. However, because we conclude that there are no remaining
viable federal claim s , we decline to exercise s upplemental jurisdiction. See 28 U.S.C. § 1367. Accordingly, Gorokhovsky’s claims under the NYCHRL are dismissed without prejudice to his pursuing them in state court.

As to all of Gorokhovsky’s remaining claims, we have conducted an independent and de n ovo review of the record , and conclude that the District Court properly granted the defendants’ motion

. As to those claims , we affirm substantially for the reasons stated by the District Court in its thorough opinion of May 18, 2011.4 CONCLUSION

We have considered Gorokhovsky’s remaining arguments on appeal and find the m to be

without merit. For the reasons set out above, we AFFIRM IN PART AND REVERSE IN

PART the May 19, 2011 judgment of the District Court

. I n the absence of a viable federal claim,

we d ecline to exercise supplemental jurisdiction over Gorokhovsky’s claims under the NYCHRL

, and dismiss them without prejudice.

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