12-3606
Robinson v. Goulet
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 Square, in the City of
New York, on the 17th day of May, two thousand thirteen.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT D. SACK,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
DIANE ROBINSON,
Plaintiff-Appellant,
v. 12-3606
PETER GOULET, FACILITY MANAGER,
Defendant-Appellee.
_________________________________________
1
FOR APPELLANT: Diane Robinson, pro se,
Schenectady, NY.
FOR APPELLEE: Henry M. Greenberg, Greenberg
Traurig, LLP, Albany, NY.
1 Appeal from a judgment of the United States District
2 Court for the Northern District of New York (McAvoy, J.).
3
4 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the judgment of the district court be
6 AFFIRMED IN PART, VACATED IN PART, and REMANDED for further
7 proceedings consistent with this order.
8 Appellant Diane Robinson, pro se, appeals from a
9 judgment of the United States District Court for the
10 Northern District of New York (McAvoy, J.), entered on
11 August 13, 2012, granting her manager Peter Goulet’s motion
12 to dismiss her employment discrimination complaint pursuant
13 to Federal Rule of Civil Procedure 12(b)(6). Robinson
14 alleged that Goulet violated Title VII of the Civil Rights
15 Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), by
16 discriminating against her on the basis of her sex and race,
17 retaliating against her for filing a complaint against him,
18 and creating a hostile work environment. We assume the
19 parties’ familiarity with the underlying facts, the
20 procedural history of the case, and the issues on appeal.
2
1 This Court reviews de novo a district court decision
2 dismissing a complaint pursuant to Rule 12(b)(6). See
3 Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
4 2002). To survive a motion to dismiss under Rule 12(b)(6),
5 the complaint must plead “enough facts to state a claim to
6 relief that is plausible on its face.” Bell Atlantic Corp.
7 v. Twombly, 550 U.S. 544, 570 (2007). The law in this Court
8 is currently unsettled with respect to the standard for
9 assessing the pleadings in a Title VII case. See Boykin v.
10 KeyCorp, 521 F.3d 202, 212-14 (2d Cir. 2008). Regardless,
11 we remain obligated to construe pro se complaints liberally.
12 Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Further,
13 “dismissal of a pro se claim as insufficiently pleaded is
14 appropriate only in the most unsustainable of cases.”
15 Boykin, 521 F.3d at 216.
16 In addition to the requirement that pro se complaints
17 be liberally construed, we have held that district courts
18 should not generally dismiss a pro se complaint without
19 granting the plaintiff leave to amend. See Cuoco v.
20 Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, leave
21 to amend is not necessary when it would be futile. See id.
22 (finding that leave to replead would be futile where the
23 complaint, even when read liberally, did not “suggest[] that
3
1 the plaintiff has a claim that she has inadequately or
2 inartfully pleaded and that she should therefore be given a
3 chance to reframe”).
4 Here, the district court correctly concluded that
5 Robinson’s complaint failed to state a claim against Goulet
6 because individuals are not subject to suit under Title VII.
7 See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir.
8 2003) (“[U]nder Title VII individual supervisors are not
9 subject to liability.”). However, the district court erred
10 in not granting Robinson leave to amend her complaint to
11 name the proper defendant, her employer, and to replead two
12 of her inartfully pleaded claims because it is not clear
13 that such amendments would be futile. See Cuoco, 222 F.3d
14 at 112.
15 We reject Goulet’s argument that granting Robinson
16 leave to amend her complaint would be futile because her
17 complaint was untimely. First, it is unclear whether the
18 date stamp on the EEOC Right to Sue Letter indicates that it
19 was mailed on January 23, 2012 or January 26, 2012 and if it
20 was the latter date, Robinson’s claim was timely filed. See
21 42 U.S.C. § 2000e-5(f)(1) (requiring a plaintiff to file a
22 federal complaint within 90 days of receipt of an EEOC
23 right-to-sue letter).
4
1 Second, Robinson’s “allegations, taken as true,
2 indicate the possibility of discrimination and thus present
3 a plausible claim of disparate treatment.” Boykin, 521 F.3d
4 at 215-16. Title VII makes it unlawful for an employer “to
5 discharge any individual, or otherwise to discriminate
6 against any individual with respect to his compensation,
7 terms, conditions, or privileges of employment, because of
8 such individual’s race, color, religion, sex, or national
9 origin.” 42 U.S.C. § 2000e-2(a)(1). Robinson alleged that
10 she was an African-American female, she was yelled and
11 cursed at “because [she is] Black and . . . a female,” and
12 that her work hours were reduced and she was prohibited from
13 working overtime, while other male and white employees did
14 not face similar reductions. The loss of overtime hours or
15 pay on the basis of race or sex violates Title VII. See
16 Austin v. Ford Models, Inc., 149 F.3d 148, 153 (2d Cir.
17 1998), abrogated on other grounds by Swierkiewicz v. Sorema
18 N.A., 534 U.S. 506 (2002).
19 Liberally construing the complaint, it is plausible
20 that Goulet’s alleged actions constituted a materially
21 significant disadvantage with respect to the terms and
22 conditions of Robinson’s employment. Consequently,
5
1 Robinson’s complaint sufficiently pleaded the “possibility
2 of discrimination.” Boykin, 521 F.3d at 215-16. Thus, we
3 vacate the district court’s decision and remand the case
4 with respect to Robinson’s disparate treatment claim.
5 Additionally, Robinson should be allowed to amend her
6 complaint to flesh out her retaliation claim. To establish
7 a retaliation claim under Title VII, a plaintiff must
8 demonstrate that (1) she participated in a protected
9 activity; (2) that activity was known to the defendant; (3)
10 the defendant took an employment action that disadvantaged
11 the plaintiff; and (4) a retaliatory motive played a part in
12 the adverse action. See Kessler v. Westchester Cnty. Dep’t
13 of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).
14 Robinson has alleged that, inter alia, Goulet refused
15 her requests for time off, reduced her hours, and
16 “continually yelled and cursed” at her after Robinson filed
17 a complaint about him. Although the content of that
18 complaint is somewhat unclear, her letter to the court
19 accompanying her civil complaint could be read as stating
20 that her internal complaint alleged both that Goulet had an
21 affair and, possibly, that he was giving white employees
22 special treatment. Cf. Kelly v. Howard I. Shapiro & Assocs.
6
1 Consulting Eng’rs., P.C., NO. 12-3489, slip op. at 8-9 (2d
2 Cir. Apr. 26, 2013) (finding that complaints about a
3 “paramour preference” claim alone are not protected).
4 Robinson also states that, after making her initial
5 complaint, she was then assigned to work with a co-worker
6 who made sexual advances, that she reported this harassment,
7 and that her supervisors never followed up with her and
8 instead accused her of being lazy.
9 Reading her allegations generously, if given the
10 opportunity to amend her complaint, Robinson may be able to
11 plead sufficient facts to demonstrate that she had a
12 reasonable, good-faith belief that Goulet’s and her other
13 co-worker’s actions were unlawful under Title VII, that her
14 employer knew her complaints were about unlawful activity
15 (if she in fact complained of disparate treatment or sexual
16 harassment), that she suffered adverse employment actions,
17 and that these adverse actions were motivated at least in
18 part by retaliatory animus. See id. at 205-06.
19 We affirm the district court’s dismissal of Robinson’s
20 hostile work environment claims, as Robinson does not allege
21 facts tending to show that Goulet’s or other’s actions were
22 “sufficiently severe or pervasive to alter the conditions of
23 [Robinson’s] employment and create an abusive working
7
1 environment.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.
2 2002) (internal quotation marks omitted).
3 We have considered Robinson’s remaining arguments on appeal
4 and find them to be without merit. For the foregoing reasons,
5 the judgment of the district court is hereby AFFIRMED IN
6 PART, VACATED IN PART, and REMANDED for further proceedings
7 consistent with this order.
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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