Ziyan Shi v. N.Y. Dep't of State, 18 Civ. 3455 (LGS)

393 F.Supp.3d 329

ZIYAN SHI, Plaintiff,

v.NEW YORK DEPARTMENT OF STATE, DIVISION OF LICENSING SERVICES, et al., Defendants.

18 Civ. 3455 (LGS)

United States District Court, S.D. New York.

Signed April 11, 2019

David K. Bowles, Alexis Scott Berkowitz, Bowles Liberman & Newman LLP, New York, NY, for Plaintiff.

Ziyan Shi, Great Neck, NY, pro se.

James Martin Thompson, New York State Office of the Attorney General, New York, NY, for Defendants.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiff Ziyan Shi brings this action against his employer, New York Department of State, Division of Licensing Services ("DLS"), and Ernita Gantt, the Chief of DLS. Plaintiff alleges that Defendants discriminated against him on the basis of "his East Asian national origin and race," and retaliated against him after he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The Amended Complaint (the "Complaint") asserts claims of discrimination and retaliation against DLS under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Complaint also alleges claims for discrimination and retaliation against Defendant Gantt under state and local law, N.Y. Executive Law § 296 ("NYSHRL") and Administrative Code of the City of New York § 8-101 et seq. ("NYCHRL").

Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6) on the grounds that (1) the Title VII claims are time barred and (2) the Complaint fails to state a claim for retaliation. On November 2, 2018, the Court partially converted Defendants' motion to dismiss into a motion for summary judgment on the issue of whether the Title VII claims are time barred. For the reasons discussed herein, Defendants' motion to dismiss the retaliation claim for failure to state a claim is granted. The motion for summary judgment on the Title VII claims is also granted. The Court declines to exercise supplemental jurisdiction over the remaining state and local discrimination claims.

I. BACKGROUND

A. Defendant's Discrimination Against Plaintiff

The facts below are taken from the Complaint, exhibits attached to the Complaint and documents susceptible to judicial notice. See TCA Television Corp. v. McCollum , 839 F.3d 168, 172 (2d Cir. 2016). These facts are assumed to be true only for purposes of the motion to dismiss. See Cohen v. Rosicki, Rosicki & Assocs., P.C. , 897 F.3d 75, 80 (2d Cir. 2018).

Plaintiff is a United States citizen who was born in China and who is of Chinese descent. Since May 2007, Plaintiff has been employed by DLS as a "License Investigator 1." In 2016, Plaintiff was twice denied a promotion, despite his model job performance, seniority and qualifications. Plaintiff was not promoted because of Defendant's policy and practice of discriminating against employees of "East Asian national origin and race." Plaintiff filed a charge of discrimination with the EEOC on March 22, 2018.

Shortly after Plaintiff filed his charge of discrimination, DLS began to retaliate against him. Plaintiff alleges that he was given an "impossible and unachievable" caseload and unrealistic deadlines. In early April 2017, Plaintiff was assigned extra inspections of nail salons and "appearance enhancement businesses." At this time, DLS was experiencing a "shortage of resources" resulting in a "substantial backlog of enforcement cases." Then, in a meeting on April 12, 2017 (the "April 12 Meeting"), Plaintiff was assigned three alarm installer audits and three security guard audits. Plaintiff received these assignments after Jack Bilello, the District Manager, realized that he had not assigned Plaintiff any alarm installer audits in March and had not assigned Plaintiff any security guard audits whatsoever in 2017. Bilello said that he was assigning the additional audits so that Plaintiff could "catch up."

On April 18, 2017, Plaintiff was asked to sign a counseling memorandum (the "April 18 Memo") during a meeting with Bilello and Stephen Cavota, his supervisor. The April 18 Memo, which is attached to the Complaint as Exhibit 2, contains false and misleading information. For example, the memo states that Plaintiff "was required to submit two completed security guard audits per month and two alarm installer audits per month," but "none were completed."¹ This was misleading, because until the April 12 Meeting, Plaintiff had not been assigned any security guard audits that year. Moreover, Plaintiff was working diligently on the two alarm installer audits he had been assigned in March. Cavota and Bilello pressured Plaintiff to "just sign it," and stated that the letter "would not go to his employee file" and "was not a formal warning." Later that day, Cavota again pressured Plaintiff to sign the memo, culminating in Cavota screaming repeatedly: "[D]on't play with me, I'm not messing around, just sign it now." The April 18 Memo was retaliation for Plaintiff's charges of discrimination.

On May 17, 2017, the EEOC issued a "Notice of Charge of Discrimination" to DLS.² On May 22, 2017, Bilello presented Plaintiff with a new counseling memorandum (the "May 22 Memo"). The May 22 Memo was the same as the April 18 Memo, except for new and revised language describing the April 12 Meeting. The purpose of the May 22 Memo was to create a doctored and false record in order to intimidate Plaintiff, retaliate against him for his EEOC charge and position him for termination.

Plaintiff's work environment became unbearable due to instances of harassment, alienation and mistreatment. This conduct began "within weeks of when Plaintiff filed his EEOC Charge." For example, Gantt sent an e-mail to DLS investigators soliciting feedback in connection with employee retention efforts. Plaintiff was the only investigator who did not receive the e-mail.³

B. Dismissal of EEOC Charges and Filing of Suit

The following facts are taken from Plaintiff's submissions in opposition to Defendants' motion for partial summary judgment.

On September 29, 2017, counsel for Plaintiff e-mailed the EEOC requesting a right-to-sue letter. An EEOC investigator responded on October 3, 2017, stating that he would "get ... out the letter this week." On November 15, 2017, the investigator informed counsel that "[t]he file was sent to the Department of Justice ["DOJ"] for issuance of the Right to Sue letter. You will get it from them." Counsel replied, stating: "Our firm recently moved offices, so I am concerned that there may have been an issue with the mail forwarding process since over a month has elapsed. Would you be able to tell me whether there is a way to confirm whether and when the letter was mailed?" The investigator replied with the contact information of Karen Ferguson, a Supervisory Civil Rights Analyst who was the point of contact for right-to-sue letters at DOJ.

On November 27, 2017, counsel for Plaintiff contacted Ferguson to ask whether a right-to-sue letter had been issued. Ferguson responded that the case was pending. On January 18, 2018, counsel followed up, asking for confirmation that a right-to-sue letter would be sent upon completion of DOJ's investigation. Ferguson responded later that day, stating that "[t]he RTS letter was mailed on 12/21/17 to the attention of Alexis Berkowitz at the 150 Broadway, Ste. 1402 location," and providing a certified mail tracking number (the "January 18 E-mail"). On January 19, 2018, at counsel's request, Ferguson e-mailed counsel a PDF copy of the right-to-sue letter. The right-to-sue letter is dated December 21, 2017. Plaintiff filed this action on April 19, 2018 -- 91 days after the January 18 E-mail, and 90 days after counsel received the PDF copy of the right-to-sue letter.

C. Procedural History

On September 18, 2018, Defendants filed their motion to dismiss the Complaint. In support of the motion, Defendants submitted several documents related to the issue of when Plaintiff's counsel learned that a right-to-sue letter had been issued by DOJ. In light of these submissions, on November 2, 2018, the Court partially converted the motion to dismiss into a motion for summary judgment, solely on the issue of whether the Title VII claims are time barred. As required by Federal Rule of Civil Procedure 12(d), the parties were given an opportunity to supplement their submissions with additional evidence regarding the timeliness issue.⁴ Plaintiff filed several documents relating to the right-to-sue letter, and each party filed a supplemental memorandum of law.

II. STANDARD

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial 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." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). It is not enough for a plaintiff to allege facts that are consistent with liability; the complaint must "nudge[ ] their claims across the line from conceivable to plausible." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ " ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). On a motion to dismiss, a court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party, Montero v. City of Yonkers, New York , 890 F.3d 386, 391 (2d Cir. 2018), but gives "no effect to legal conclusions couched as factual allegations," Stadnick v. Vivint Solar, Inc. , 861 F.3d 31, 35 (2d Cir. 2017).⁵

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