Ocasio v. Mohawk Valley Cmty. Coll.

JAMES D. HARTT, ATTORNEY AT LAW JAMES D. HARTT, ESQ. Counsel for Plaintif

THE LAW FIRM OF FRANK W. MILLER CHARLES C. SPAGNOLI, ESQ. Counsel for Defendant

DECISION AND ORDER

GLENN T. SUDDABY, Chief United States District Judge

Currently before the Court, in this employment discrimination action filed by Jose R. Ocasio ("Plaintiff") against Mohawk Valley Community College ("Defendant" or “MVCC”), is Defendant's motion to dismiss Plaintiff's Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 6.) For the reasons set forth below, Defendant's motion is granted; however, Plaintiff is granted leave to file a motion to amend before dismissal of his action with prejudice.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

The following facts are taken from Plaintiff's Complaint and are assumed true for the purpose of deciding the pending motion. Liberally construed, Plaintiff's Complaint alleges as follows: (1) a Hispanic male, Plaintiff, was employed by Defendant as a welding instructor in Utica and Rome, New York; (2) on or about January 27, 2017, Plaintiff began receiving sexually explicit text messages and phone calls (“communications”) on his personal cell phone during business and non-business hours;^[1] (3) communications were sent to Plaintiff on the premise that Plaintiff was a female who had sexually solicited them; (4) specifically, Plaintiff's cell phone number had been provided to numerous websites that had then solicited the communications; (5) after receiving the communications, in early February 2017, Plaintiff reported the unwanted communications to MVCC's Department of Public Safety; (6) based on “credible evidence, ” Plaintiff believes two individuals are responsible for his receipt of the communications, specifically Michael Sorrentino (“Sorrentino”)^[2] and Benjamin McCrary (“McCrary”);^[3] (7) at some point, Plaintiff learned that an MVCC student with the last name of “Morrison” (“Morrison”) had also experienced similar unsolicited communications; (8) Plaintiff suspects Sorrentino was responsible for the communications because, at an earlier point in time while Sorrentino was employed by MVCC, Plaintiff and Morrison had served as instrumental witnesses in a safety-related issue in which MVCC had investigated Sorrentino; (9) presumably,

as a result from Sorrentino's role in the safety-related issue at MVCC, Sorrentino's employment was terminated in December 2016; (10) Plaintiff's role as a witness had caused Sorrentino to retaliate against him in the form of directing unsolicited communications to Plaintiff's cell phone; (11) New York State Police's Computer Crimes Division (“NYS Police”) began investigating the origin of the communications being sent to Plaintiff's cell phone; (12) the NYS Police identified Sorrentino and McCrary as the individuals responsible for the communications being sent to Plaintiff's cell phone and shared its findings with MVCC; (13) on September 5, 2017, Plaintiff inquired of MVCC about enrolling in a training seminar in the form of a Professional Opportunity Grant (“training”) titled “CWI funding;” (14) MVCC denied Plaintiff access to the training and instead gave a newly hired and lesser qualified non-Hispanic instructor approval to attend the training; (15) MVCC's choice of not providing Plaintiff with the training constituted disparate treatment that had a discriminatory effect which caused Plaintiff to suffer from significant emotional distress; (16) in an effort to stop receiving the communications, Plaintiff changed his cell phone number; (17) despite changing his cell phone number, in April 2018, Plaintiff received additional unwanted communications; (18) at some point, Plaintiff discovered a fictitious online profile had been made using Plaintiff's personal information and posing as a female who was soliciting the sexually explicit communications;^[4] (19) Plaintiff reported the additional communications and fictitious online profile to MVCC; (20) on or about April or May 2018, Plaintiff learned that McCrary had been harassing an MVCC student with the last name of “Miller” (“Miller”) by creating and posting a computer-generated depiction of Miller on Facebook engaged in a sexual act; (21) over the course of the year preceding the filing of his Complaint, Defendant continued to deny Plaintiff access to the training, despite his

numerous request for it; (22) Defendant's pattern of condoning sexual harassment, retaliating against Plaintiff for reporting the sexual harassment, and racially discriminating against Plaintiff caused him to submit his employment resignation which became effective on August 5, 2018; (23) specifically, Defendant created a toxic work environment with conditions that no person could have been expected to endure; (24) on September 17, 2018, Plaintiff filed a verified complaint with the New York State Division of Human Rights (“NYSDHR”), charging Defendant with an unlawful employment discriminatory practice based on race, retaliation, and gender under New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. (“NYSHRL”);^[5] (25) on March 1, 2019, the NYSDHR issued its Determination After Investigation (“Report”) in which it had found probable cause “to believe that [Defendant] has engaged in . . . the unlawful discriminatory practice [Plaintiff] complained of;” (26) in its Report, the NYSDHR determined that (i) despite Defendant and NYS Police's lengthy investigation into the matter, the investigation had uncovered only some circumstantial evidence connecting Sorrentino and McCrary to the communications, (ii) Defendant had failed to act by permitting Plaintiff to continue to receive unwanted communications after his initial reporting of them and presenting no evidence that it had enforced its own Sexual Harassment Policy, and (iii) with respect to Plaintiff's race discrimination allegations, the one-year statute of limitations had lapsed because he had filed his NYSDHR complaint on September 17, 2018-more than one year after his last request on September 11, 2017 to attend the training; (27) on August 4, 2020, the EEOC issued Plaintiff a right-to-sue letter. (Dkt. No. 1, Attach. 1-2 [Pl.'s Compl.].)

Based on these allegations, Plaintiff asserts seven claims: (1) a claim of employment

discrimination based on race under 42 U.S.C. § 2000e (“Title VII”); (2) a claim of employment discrimination based on race under the NYSHRL; (3) a claim of hostile work environment based on sexual harassment under Title VII; (4) a claim of hostile work environment based on sexual harassment under the NYSHRL; (5) a claim of retaliation under the NYSHRL; (6) a claim of retaliation under Title VII; and (7) a claim of constructive discharge.^[6] Familiarity with these claims and the factual allegations supporting them in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)

B. Parties' Briefing on Defendant's Motion

In support of its motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6), Defendant makes five arguments:^[7] (1) Plaintiff's race discrimination claim under Title VII must be dismissed for two reasons: (a) he failed to exhaust his administrative remedies through the untimely filing of his EEOC charge, and (b) his denial of training does not constitute a material adverse employment action; (2) Plaintiff's race discrimination claim under NYSHRL must be dismissed, again, because his denial of training does not constitute a material adverse employment action; (3) Plaintiff's hostile work environment claim under Title VII must be dismissed for four reasons: (a) he failed to exhaust his administrative remedies through the untimely filing of his EEOC charge, (b) no hostile work environment existed because he failed to allege any conduct

that is severe or pervasive, (c) Defendant had no control over Sorrentino or McCrary during their alleged conduct, had no proof serving as a basis to discipline McCrary, and had no authority to seize Sorrentino's or McCrary's personal computers or cell phones, (d) despite alerting NYS Police and conducting an investigation, little circumstantial evidence connecting Sorrentino or McCrary to the communication that Plaintiff alleges; (4) Plaintiff's hostile work environment claim under NYSHRL must be dismissed for five reasons: (a) again, Defendant had no control over Sorrentino or McCrary during their alleged conduct, had no proof serving as a basis to discipline McCrary, and had no authority to seize Sorrentino's or McCrary's personal computers or cell phones, (b) cannot be held liable for Sorrentino's alleged conduct when he had no employment relationship with Defendant at the time of the communication Plaintiff alleges, and thus, Defendant had no obligations under Title VII or NYSHRL, (c) Defendant cannot be held liable given that, when it became aware of the communications, it took appropriate actions by conducting a thorough investigation and alerting the NYS Police, (d) Plaintiff did not suffer from an abusive or hostile work environment at work given that the alleged communications had been transmitted to his personal cellphone which he chose to bring to work, and (e) the alleged sexual harassment was not motivated by Plaintiff's sex; (5) Plaintiff's retaliation claims under Title VII and the NYSHRL must be dismissed for two reasons: (a) Plaintiff's instances of reporting to MVCC about the communication he had received did not constitute protected activity because he admits the communication was not sent on the basis of his sex, (b) even if his instance of reporting the communications to...