18-2099 Collymore v. City of New York

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 ELECTRON IC 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

11 th day of April, two thousand nineteen.

Present: ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges

, RICHARD K. EATON, Judge

. 1

_____________________________________________________

ROBIN COLLYMORE,

Plaintiff-Appellant

,

v. 18-2099-cv

CITY OF NEW YORK, LISA MALUF, DAVID KIRKS, and MATTHEW AUSTIN, in thei r individual capacities,

Defendants-Appellees

.

_____________________________________________________

Appearing for Appellant: Speci al Hagan, St. Albans, N.Y.

Appearing for Appellees: Lore nzo Di Silvio (Devin Slack, on the brief ), for Zachary W. Carter, Corporation Counsel of th e City of New York, New York,

N.Y.

1 Judge Richard K. Eaton, United States Court of International Trade, sitting by designation.2 Appeal from a judgment of the United States Dist rict Court for the Southern District of New York (Swain, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in
part and VACATED in part and the case is REMANDED for further proceedings.

Appellant Robin Collymore appeals from the June 15, 2018, judgment of the United

States District Court for the Southe rn District of New York (Swain, J. ) dismissing her claims of sex and race discrimination, Title VII and Sec tion 1983 retaliation, First Amendment retaliation,

and Monell liability for failure to state a claim and declining to exercise supplemental jurisdiction over her state- and local-law claims. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Collymore is an African American woman who was employed as a Project Manager for the Emergency Communications Transformati on Program (“ECTP”) in New York City’s Department of Information Technology and Te lecommunications from August 3, 2015, to June 28, 2016. Over the course of those nearly eleven months, Collymore claims that she was the

victim of sex and race discrimination and of re taliation for first reporting the discrimination against her and later repo rting that her supervisor Matthew Austin violated the agency’s code of conduct when he instructed Collymore and ot her employees to hide documents during an ongoing investigation by the Department of Investig ation. Collymore also clai ms that the City of New York has a policy of violating employees’ constitutional rights by not addressing complaints of discrimination and by retaliati ng against employees for engaging in protected activities. Lastly, she claims that Defendants- Appellees violated New York Executive Law § 296 and New York City Administrative Code § 8-107 a nd argues that the district court abused its discretion by declining to exercise s upplemental jurisdicti on over those claims.

We review a district court’s gr ant of a motion to dismiss de novo. Littlejohn v. City of

New York , 795 F.3d 297, 306 (2d Cir. 2015). We review a di strict court’s deci sion of whether to exercise supplemental jurisdic tion over state- and local-law claims for abuse of discretion. See
Valencia ex rel. Franco v. Lee , 316 F.3d 299, 305-06 (2d Cir. 2003).

1. Discrimination Claims

To state a Title VII claim, Collymore must plausibly allege that “(1) the employer discriminated against [her] (2) because of [her] race, color, religion, sex, or national origin.” Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 85 (2d Cir. 2015). As to the first element, “[a] plaintiff sustains an adverse empl oyment action if he or she endures a materially adverse change in the terms a nd conditions of employment.” Galabya v. N.Y.C. Bd. of Educ. , 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation ma rks omitted). An adverse employment action also “includes requiring people to work in a di scriminatorily hostile or abusive environment.” Littlejohn , 795 F.3d at 320 (internal quotation marks omitted). As to the second element, a plaintiff’s protected characteristic must be “a subs tantial or motivating factor contributing to the employer’s decision to take the action.” Vega , 801 F.3d at 85 (internal quotation marks omitted).3 Collymore also brings claims under 42 U.S.C. § 1983. 2 “To state a claim under § 1983, a plaintiff must allege two elements: (1) the vi olation of a right secured by the Constitution and laws of the United States, and (2) the alle ged deprivation was committed by a person acting

under color of state law.” Id. at 87-88 (internal quotation marks omitted). “Once the color of law requirement is met, a plaintiff’s equal protection claim parallels h[er] Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against an individual.” Id. at 88 (internal quotation marks omitted).

A. Sexual Harassment Claims

Collymore alleges that Lisa Maluf, her in direct supervisor, sexually harassed her by inappropriately touching her, but Collymore has failed to plausibly allege that her sex was a “substantial or motivating factor contributing to” Maluf’s decision to inappropriate ly touch her.

Id. at 85 (internal quotation marks omitted). Collymore does not make any allegations regarding Maluf’s motivation for inappropriately touching he r, and her allegation th at “Maluf regularly touched others the same way” indicates th at Maluf’s harassment was not motivated by Collymore’s sex. App’x at 20. Collymore has ther efore failed to allege that Maluf’s unwanted touching was because of Collymore’s sex.

B. Race Discrimination Claims

Collymore alleges that Maluf and Austin disc riminated against her because of her race by yelling at her and scrutinizing her work more closely than white employees’ work, by paying her at a comparable rate to a similarly situated wh ite woman in the department despite Collymore’s superior education and experi ence, and by chastising her for making overtime requests or denying them altogether. The allega tions here are insufficient to c onstitute an actionable change in the terms and conditions of employment and are more in the nature of petty slights. See Shultz v. Congregation Shearith Israel of N.Y. , 867 F.3d 298, 308-09 (2d Cir. 2017) (rejecting claim of

discrimination based on a “handful of uncomfortab le incidents,” such as plaintiff overhearing supervisor’s negative comments a nd members of management refusing to speak with plaintiff, “over a period of just a few weeks”). Collymore ’s allegation that a similarly situated white

woman with less education and le ss experience was paid at a comp arable rate to Collymore is similarly nonactionable because Collymore has not alleged a reason that her master’s degree should have entitled her to higher, as opposed to comparable, pay and doe s not allege how much more experience she has than her white counterpart. Cf. Lavin-McEleney v. Marist Coll. , 239 F.3d 476, 480 (2d Cir. 2001) (requiring allegations of pay discrimination under the Equal Pay Act, which is generally construed under a similar framework to Title VII, to state that employees performed equal work under similar working co nditions but received unequal pay). Collymore’s complaints of discrimination in her overtime re quests are also unavailing because Collymore has not alleged any facts indica ting how frequently she was denied overtime when she worked

2 Counts 1 through 4 of Collymore’s complaint al lege violations of 42 U.S.C. § 1981, but the district court properly constr ued Collymore’s Section 1981 claims as Section 1983 claims because “the express cause of action fo r damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.” Duplan v. City of New York , 888 F.3d 612, 619 (2d Cir. 2018) (internal quotation marks omitted).4 beyond her hours as opposed to how frequently she was simply chastised for her overtime requests. Since Collymore has not pled that sh e was denied overtime frequently enough to constitute a change in the terms and conditions of her employment, see Galabya , 202 F.3d at 640, her claims of race discrimination fail.

2. Title VII and Section 1983 Retaliation Claims

Collymore alleges that Maluf and Austin re taliated against her on several occasions for reporting Maluf’s sexual harassment and Maluf and Austin’s racial discrimination. “To establish a presumption of retaliation at the initial st age of a Title VII litig ation,” Collymore must plausibly allege (1) that she part icipated “in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action” was taken against her; and (4) there was “a causal connection between the protected activity and the advers e employment action.” Littlejohn , 795 F.3d at 315-16 (interna l quotation marks omitted). “[A]n adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega , 801 F.3d at 90 (internal quotation marks omitted). “[N]ormally petty slights, minor annoyan ces, and simple lack of good ma nners will not create such

deterrence.” Burlington N. & Santa Fe Ry. v. White , 548 U.S. 53, 68 (2006). To satisfy the requirement of a causal connection, “the plaintiff must pl ausibly allege that the retaliation was a

‘but-for’ cause of the em ployer’s adverse action.” Vega , 801 F.3d at 90. At the pleadings stage, causation may be satisfied by allegations that “each of the adverse actions” defendants took “occurred against a backdrop of continuing anta gonism and frustration of [the plaintiff’s] professional ambitions.” Duplan v. City of New York , 888 F.3d 612, 626 (2d Cir. 2018). Finally,

“the elements of a retaliation claim based on an equal protection viol ation under § 1983 mirror

those under Title VII.” Vega, 801 F.3d at 91.

The majority of Collymore’s allegations that Maluf and Austin were harsh with her and yelled at her falls into the cat egory of nonactionable “petty slights, minor annoyances, and simple lack of good manners.” Burlington N. & Santa Fe Ry. , 548 U.S. at 68. However, Collymore’s allegation that after she complain ed about Maluf’s sexual harassment, Maluf and Austin forced her to work through her lunch hour despite knowing that Collymore needed to maintain a specific lunch hour to prevent migrai nes plausibly states a claim for retaliation under Title VII and Section 1983. By forcing Collymore to work through her lunch hour and thereby causing Collymore to “develop[] migraines on a regular basis,” App’x at 21-22, ¶ 77, Maluf and Austin forced Collymore to choose between repo rting discrimination and maintaining her health. It is therefore plausible that a reasonable worker in Collymore’s position would decline to report

discrimination in order to conserve their healt h. Because Collymore has alleged facts indicating that Defendants-Appellees’ re taliation “occurred ag ainst a backdrop of continuing antagonism and frustration of [her] professional ambitions,” Duplan , 888 F.3d at 626, Collymore has also sufficiently alleged a causal connection between her protected activity an d the retaliatory acts. Collymore’s allegations of retaliation based on Ma luf and Austin forcing her to work through her lunch hour for reporting discrimina tion plausibly state a claim of retaliation under Title VII and

Section 1983.5 3. First Amendment Retaliation Claim

Collymore next alleges that Defendants-Appell ees retaliated against her by attempting to bring disciplinary charges against her, scrutini zing her work, and denying her overtime requests when she exercised her First Amendment rights to report that Austin had violated the code of conduct. A public employee alleging she suffered an adverse employment action in retaliation for exercising her First Amendment rights “must in itially show that (1) the speech at issue was made as a citizen on matters of public concern ra ther than as an employee on matters of personal interest, (2) he or she suffered an adverse em ployment action, and (3) the speech was at least a substantial or motivating factor in the adverse employment action.” Zelnik v. Fashion Inst. of

Tech. , 464 F.3d 217, 225 (2d Cir. 2006) (alterations omitted) (internal quotation marks omitted). Defendants-Appellees do not disp ute that Collymore raised matte rs of public concern regarding

Austin’s violation of the code of conduct. Co llymore’s allegations of retaliatory conduct, however, are not “more than de minimis,” and she has failed to state a pl ausible claim that “a person of ordinary firmness” would be dete rred from exercising her free speech rights. Id. at 226 (internal quotation marks omitted).

4. Monell Claims

Collymore’s Monell claims fail because she has not “es tablish[ed] a violation of [her] constitutional rights” pursuant to a cust om or policy that violates federal law. Askins v. Doe No.

1 , 727 F.3d 248, 253 (2d Cir. 2013) (internal quotation marks omitted). Collymore bases her

Monell claims on disparate treatment due to r ace under the Fourteenth Amendment and retaliation for exercising her First Amendment right s. Since we affirm the dismissal of both of those underlying substantive claims, Collymore has not established a violation of her constitutional rights, and her Monell claims must likewise be dismissed.

5. Supplemental Jurisdiction over Collymor e’s State- and Local-Law Claims

Collymore argues that the district court s hould have exercised s upplemental jurisdiction over her claims under New York Executive Law § 296 and New York City Administrative Code § 8-107 and for aiding and abetting violations of the same. A court has discretion to decline to exercise supplemental jurisdiction over a claim if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3); Kolari v. N.Y.-Presbyterian Hosp. , 455 F.3d 118, 122 (2d Cir. 2006). Because we conc lude that the district court erred in dismissing one of the claims over which it has original jurisdiction, we also hold that the district court erred by declining to exercise supplement al jurisdiction over Collymore’s state- and local- law claims.6 We have considered the remainder of Collymo re’s arguments and find them to be without merit. Accordingly, the judgment of the dist rict court hereby is AFFIRMED in part and
VACATED in part and the case is REMANDED for further proceedings.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk