Duplan v. City of New York

17-1359-cv
Duplan v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2017
(Argued: December 12, 2017 Decided: April 30, 2018)
Docket No. 17-1359-cv
LOUIS M. DUPLAN,
Plaintiff-Appellant,
— v. —
THE CITY OF NEW YORK,
Defendant-Appellee.
B e f o r e:
LYNCH and LOHIER, Circuit Judges, and REISS, District Judge.*
Louis Duplan appeals from a judgment of the United States District Court
for the Eastern District of New York (Roslynn R. Mauskopf, J.), dismissing his
claims that his employer, the City of New York (“the City”), retaliated against
*
Judge Christina Reiss, of the United States District Court for the District of
Vermont, sitting by designation.
him after he filed a discrimination complaint, in violation of 42 U.S.C. § 1981 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. With respect to
his § 1981 claims, we conclude that 42 U.S.C. § 1983 provides the sole cause of
action against state actors alleged to have violated § 1981. Construing Duplan’s
claims as § 1983 claims, he has failed to allege a policy or custom of misconduct,
as is necessary to assert liability against a municipality. With respect to his Title
VII claims, we conclude that Duplan cannot avoid that statute’s exhaustion
requirement by asserting retaliation for filing a claim of discrimination that he
failed to pursue. As to those claims that Duplan properly exhausted, however,
Duplan has adequately alleged retaliation following both of his EEOC
complaints. Accordingly, the district court’s dismissal of those claims is
VACATED. In all other respects, the judgment of the district court is AFFIRMED.
KATHY A. POLIAS, Brooklyn, NY, for Plaintiff-Appellant.
JONATHAN A. POPOLOW (Jane L. Gordon, Dona B. Morris, on
the brief), for Zachary W. Carter, Corporation Counsel of the
City of New York, New York, NY, for Defendant-Appellee.
GERARD E. LYNCH, Circuit Judge:
Louis Duplan appeals from a judgment of the United States District Court
for the Eastern District of New York (Roslynn R. Mauskopf, J.), dismissing his
claim that his employer, the City of New York (“the City”), retaliated against him
after he filed a discrimination complaint, in violation of 42 U.S.C. § 1981 and Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. With respect to his
claims under § 1981, we conclude that 42 U.S.C. § 1983 provides the sole cause of
action available against state actors alleged to have violated § 1981. Construing
2
Duplan’s claims as § 1983 claims, we further conclude that he has failed to allege
a municipal policy or custom of misconduct, as is necessary to assert liability
against a municipality. Accordingly, we find no error in the district court’s
dismissal of Duplan’s § 1981 claims.
With respect to his Title VII claims, we conclude that Duplan cannot avoid
that statute’s exhaustion requirement by asserting retaliation for filing a claim of
discriminatory treatment that he failed to pursue. As to those claims properly
exhausted by Duplan’s second complaint to the Equal Employment Opportunity
Commission (“EEOC”), however, Duplan has adequately alleged retaliation for
filing his earlier EEOC complaint. Duplan has also adequately alleged that he
suffered an adverse employment action in retaliation for filing his second EEOC
complaint. Finally, we determine that Duplan has failed to allege sufficiently
severe or pervasive conduct to make out a hostile work environment claim.
Accordingly, the district court’s dismissal of Duplan’s properly exhausted Title
VII retaliation claims is VACATED, and in all other respects the judgment of the
district court is AFFIRMED.
3
BACKGROUND
I. Factual Background
Because a court that rules on a defendant’s motion to dismiss a complaint
“must accept as true all of the factual allegations contained in the complaint,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (internal quotation marks omitted),
we describe the facts as alleged in the complaint, drawing all reasonable
inferences in the plaintiff’s favor, Littlejohn v. City of New York, 795 F.3d 297, 306
(2d Cir. 2015), and construing any ambiguities “in the light most favorable to
upholding the plaintiff’s claim,” Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir.
2016).
Louis Duplan, a gay, black man from Haiti, was, at all relevant times, an
employee of the City of New York in the Administration Unit of the Bureau of
HIV/AIDS Prevention and Control, which is a subdivision of the City’s
Department of Health and Mental Hygiene (the “Department”). From 2005
through 2011, Duplan held the position of Director of Operations, in which role
he had numerous managerial and supervisory responsibilities. In 2011, Duplan’s
direct supervisor was Randolph Rajpersaud, the Bureau’s Director of
Administration. In that role, Rajpersaud made derogatory comments about black
4
people, gay people, and Haitians, and had on two occasions given preferential
treatment to white women. In May 2011, Rajpersaud targeted Duplan personally
by removing several of his substantive and managerial responsibilities.
After Rajpersaud was promoted to Assistant Commissioner of the
Department, in June 2011, Duplan applied for a promotion to the vacated post of
Director of Administration. Rajpersaud served on the hiring committee for his
replacement. Duplan was not selected for the job; instead, in July, the committee
chose a white, straight, American-born woman whom Duplan alleges was less
qualified for the position. That selection, coupled with Rajpersaud’s participation
in the process, led Duplan to believe that he had been denied the position on the
basis of his race, national origin, and sexual orientation.
In July and August 2011, Duplan filed complaints with the City, the EEOC,
and the New York State Division of Human Rights (“NYSDHR”), asserting that
he had been denied the promotion for discriminatory reasons and, in retaliation
for complaining about that discrimination, had then been effectively demoted
through the diminution of his substantive responsibilities. For the remainder of
that year, Rajpersaud and other unspecified City officials engaged in a retaliatory
campaign against Duplan. Under the pretext of a “reorganization,” Duplan was
5
deliberately deprived of additional responsibilities as well as all of his remaining
subordinates. His sole remaining responsibility involved time management tasks,
which he voluntarily expanded in order to stay busy. Duplan also learned that, at
some point in late 2011, Rajpersaud had unsuccessfully attempted to reduce his
salary several times. Duplan received a right-to-sue letter from the EEOC on July
30, 2012, but never filed a civil action.
Between 2011 and 2014, Duplan alleges, each of his successive supervisors
continued to ostracize and ignore him. Duplan also applied for several more
managerial positions for which he was qualified, but he was not interviewed or
seriously considered. In September 2014, Duplan emailed several supervisory
employees in the Department to complain about the retaliation he believed he
had experienced following his 2011 complaint, and on October 23, 2014, he filed a
complaint regarding that alleged retaliation with the EEOC and the NYSDHR.
In his complaint, Duplan charged that, in the 300 days prior to filing his
second EEOC complaint,1 the following discrete acts of retaliation occurred: First,
at some point in 2014, John Rojas, his then-supervisor, denied him a merit raise
1
As discussed further below, we conclude that Duplan has only properly
exhausted claims arising within 300 days of his second EEOC complaint.
Accordingly, our discussion of the facts focuses on that time-period.
6
that was given to the majority of his coworkers. Second, Duplan was suspended
for ten business days without pay in September and October 2014 after another
employee made an allegedly false sexual harassment claim against him, even
though the complainant had sought only an informal conference to resolve the
issue. Third, in September 2014, the City created a position that included all of
the responsibilities Duplan had held before he began making complaints in 2011
(and which had subsequently been taken from him, allegedly in retaliation for
those complaints), but did not hire him for that role. When Duplan asked Rojas
why his responsibilities had not simply been restored, Rojas responded that the
matter was “out of his control,” despite the fact that Rojas was directly involved
in hiring for the new position. App. at 13, ¶ 18(a). That response discouraged
Duplan from applying for the position. Fourth, Duplan’s application for the
Director of Administration position was denied again in September 2014.
Duplan alleges that he was subjected to two additional instances of
retaliation as a result of his 2014 complaint. First, in November 2014 and January
2015, Duplan was assigned additional duties that were “well below” his civil
service and functional titles, including removing boxes, fulfilling maintenance
requests, acting as Fire Warden, and assigning seats to new employees. App. at
7
17. Second, in September 2015, Duplan lost access to the time management
system, thus depriving him of the sole task remaining from his pre-2011
responsibilities and leaving him with only work that is “well below [his] civil
service title as well as his functional title.” App. at 17.
II. Procedural History
Duplan received a right-to-sue letter in June 2015, and on July 10, 2015, he
brought this action, asserting claims for discrimination, retaliation, and hostile
work environment under 42 U.S.C. § 1981, and for retaliation and hostile work
environment under Title VII. The district court granted the City’s motion to
dismiss all of Duplan’s claims pursuant to Rule 12(b)(6) .
First, the court held that Duplan’s § 1981 claims failed because § 1983
provided the sole federal remedy for discrimination perpetuated by state actors.
It also noted that to the extent the claims could be construed as § 1983 claims,
they would either be untimely under § 1983’s three-year statute of limitations, or
fail for the same substantive reasons as the Title VII claims.
Second, the court concluded that Duplan was time-barred from alleging
retaliation based on conduct that occurred prior to December 27, 2013 (300 days
before the 2014 EEOC complaint). The court held that the 2014 EEOC charge was
8
untimely as to any conduct occurring before that date. It also rejected Duplan’s
contention that those claims could be deemed exhausted by his 2011 EEOC filing,
because Duplan had failed to file suit within 90 days after receiving a right-to-sue
letter based on the earlier complaint.
Third, evaluating the remaining allegations, the court held that Duplan
had failed to demonstrate a sufficient causal connection between the conduct
included in the 300-day look-back period prior to the 2014 EEOC complaint and
any retaliatory animus arising from the 2011 complaint.
Fourth, the court held that Duplan had not adequately alleged retaliation
following his 2014 complaint because the conduct about which he complained
did not amount to an adverse employment action. And finally, it ruled that
Duplan had not adequately alleged a hostile work environment claim because the
course of conduct alleged was not sufficiently severe or pervasive.
Duplan timely appealed, challenging each of those holdings.
DISCUSSION
A district court’s grant of a motion to dismiss is reviewed de novo. Simmons
v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir. 2010).
9
I. Section 1981 Claims
Duplan seeks to assert claims against the City under 42 U.S.C. § 1981,
rather than under § 1983, because some § 1981 claims have a four-year statute of
limitations, see Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382–83 (2004),
whereas the limitations period for § 1983 claims is borrowed from state law,
which, in the case of New York, confers only a three-year period, Shomo v. City of
New York, 579 F.3d 176, 181 (2d Cir. 2009). In Jett v. Dallas Independent School
District, 491 U.S. 701 (1989), however, the Supreme Court held that “the express
cause of action for damages created by § 1983 constitutes the exclusive federal
remedy for violation of the rights guaranteed in § 1981 by state governmental
units.” Id. at 733 (emphasis added). Duplan contends that Jett was implicitly
overruled by a 1991 amendment to the Civil Rights Act. Although our precedents
have not been entirely clear on this issue,1 we now join the strong consensus of
1
A few years after the 1991 amendment, we observed that there was some
“ambiguity” about whether § 1981 now provided a private right of action against
state actors, but did not resolve the issue. Anderson v. Conboy, 156 F.3d 167, 178
n.19 (2d Cir. 1998); see also Howard v. City of New York, 602 F. App’x 545, 546 n.1
(2d Cir. 2015) (citing Anderson, and again avoiding the issue). In subsequent
opinions and summary orders, we have occasionally cited Jett as if it remained
good law. See, e.g., Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004);
Gladwin v. Pozzi, 403 F. App’x 603, 605 (2d Cir. 2010). However, those rulings did
not discuss the arguments Duplan raises here, and district courts in this Circuit
10
our sister Circuits in rejecting Duplan’s argument and reaffirming Jett’s ongoing
viability.
Duplan’s argument hinges on a new reference to state actors added to
§ 1981(c) by the 1991 amendments, which reads as follows: “The rights protected
by this section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c).
Legislative history indicates that the addition “was intended to codify Runyon v.
McCrary, 427 U.S. 160 (1976), in which the Supreme Court held that § 1981
prohibited intentional racial discrimination in private, as well as public,
contracting.” McGovern v. City of Philadelphia, 554 F.3d 114, 120 (3d Cir. 2009),
citing H.R. Rep No. 102-40(II), at 37 (1991) (internal citation modified).
In Federation of African American Contractors v. City of Oakland, 96 F.3d 1204
(9th Cir. 1996), the Ninth Circuit concluded that, because the amended language
of § 1981(c) “afford[ed] identical protection against ‘impairment by
nongovernmental discrimination’ and ‘impairment under color of State law,’”
have generally continued to view the issue as undecided. See, e.g., Smith v. Metro.
Dist. Comm’n, 105 F. Supp. 3d 185, 188 n.6 (D. Conn. 2015); Whaley v. City Univ. of
N.Y., 555 F. Supp. 2d 381, 401 (S.D.N.Y. 2008). Accordingly, we take this
opportunity to clarify the law on this issue.
11
when Congress created an implied right of action against private actors, it must
also have created an identical right of action against state actors under the same
provision. Id. at 1213 (emphasis in original).
Every subsequent Circuit to consider the issue, however, has declined to
follow Federation’s reasoning.2 As explained by Judge Arterton in her thorough
and well-reasoned discussion of this case law in Smith v. Metropolitan District
Commission, 105 F. Supp. 3d 185 (D. Conn. 2015), those courts have coalesced
around three cogent points. First, there is no indication in the legislative history
that Congress intended the 1991 amendments to overrule Jett. To the contrary,
the legislative history expressly invokes and either codifies or overrules other
Supreme Court cases, but makes no reference to Jett, a high-profile opinion
issued less than two years before the amendments were enacted.3 Second, there is
2
See Buntin v. City of Boston, 857 F.3d 69, 72–75 (1st Cir. 2017); Brown v. Sessoms,
774 F.3d 1016, 1021 (D.C. Cir. 2014); Campbell v. Forest Preserve Dist. of Cook Cty.,
752 F.3d 665, 670–71 (7th Cir. 2014); McGovern, 554 F.3d at 120–21 (3d Cir. 2009);
Arendale v. City of Memphis, 519 F.3d 587, 598–99 (6th Cir. 2008); Bolden v. City of
Topeka, 441 F.3d 1129, 1136–37 (10th Cir. 2006); Oden v. Oktibbeha Cty., 246 F.3d
458, 463–64 (5th Cir. 2001); Butts v. Cty. of Volusia, 222 F.3d 891, 894 (11th Cir.
2000); Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 & n.1 (4th Cir. 1995).
3
See, e.g., Buntin, 857 F.3d at 75 (“[C]onspicuously, Jett is not cited or discussed
anywhere in the 1991 Act’s legislative history. That silence is striking in light of
the numerous other Court decisions mentioned explicitly.”) (internal citation
omitted); Brown, 774 F.3d at 1021 (“The fact that Jett appears nowhere in the Act
12
a difference between providing identical rights and providing identical remedies.4
Because § 1983 already provides a remedy against state actors, there is no reason
to infer from the rights-conferring language of § 1981(c) that it creates an
additional, and duplicative, remedy.5 Third, since Federation was decided, the
Supreme Court has increasingly discouraged the recognition of implied rights of
actions without a clear indication of congressional intent.6
or the committee reports that preceded it belies any argument that the Congress
intended to repeal the decision.”) (internal quotation marks omitted); McGovern,
554 F.3d at 120 (“Nothing in the 1991 amendments or its legislative history
evinces Congress’s desire to alter the Supreme Court’s conclusion in Jett, nor was
Jett even mentioned[.]”).
4
See, e.g., Brown, 774 F.3d at 1021 (noting that the language of § 1981(c) “still only
addresses substantive rights and section 1983 remains the only provision to
expressly create a remedy against persons acting under color of state law”)
(internal quotation marks and citation omitted) (emphasis in original); McGovern,
554 F.3d at 119 (“The fact that § 1981(c) places an individual’s rights on equal
footing against discrimination by private and public actors does not necessarily
imply the existence of an equal remedy against all defendants.”) (emphasis in
original).
5
See, e.g., Campbell, 752 F.3d at 671 (“The fact that Congress has created a specific
remedy against state actors under § 1983 still counsels against inferring a remedy
against them under § 1981, even after the Civil Rights Act of 1991.”); McGovern,
554 F.3d at 119 (“Congress has already provided an effective means of
vindicating a plaintiff’s rights [against a state actor] elsewhere in federal law.”).
6
See, e.g., McGovern, 554 F.3d at 119 (discussing, inter alia, Alexander v. Sandoval,
532 U.S. 275 (2001), which makes Congressional intent the “sole touchstone” of
the inquiry into whether a private right of action is implied in a statute).
13
We find that reasoning persuasive, and therefore join nine of our sister
Circuits in concluding that § 1981 does not provide a separate private right of
action against state actors. Accordingly, Duplan’s claims against the City under
that provision were properly dismissed. Moreover, if we construe Duplan’s
§ 1981 claims as brought under § 1983, they still fail because Duplan has failed to
allege that the “challenged acts were performed pursuant to a municipal policy
or custom,” as required to maintain a § 1983 action against a municipality.
Patterson v. Cty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004), citing Jett, 491 U.S. at
733–36; Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692–94 (1978). Accordingly, the
district court’s judgment is affirmed to the extent that it dismissed Duplan’s
claims based on § 1981.
II. Title VII Claims
Duplan asserts Title VII claims on the basis of the discrete instances of
retaliation he suffered for filing his 2011 and 2014 EEOC complaints, and further
asserts that he was subjected to a generally hostile work environment in
retaliation for making those complaints. We discuss each of those claims in turn.
14
A. Retaliation Following the 2011 Complaint
In order to evaluate whether Duplan has alleged viable claims for
retaliation following his 2011 complaint, we must first determine whether he has
timely alleged and properly exhausted those claims. Concluding that we may
address only those instances of retaliation included in his 2014 EEOC complaint,
we then consider whether those allegations are sufficient to make out a prima facie
case of retaliation at the pleading stage.
1. Exhaustion and Timeliness
Before an aggrieved party can assert a Title VII claim in federal court, he is
generally required to exhaust the administrative remedies provided by the
statute. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015). That is,
a Title VII plaintiff generally must file a charge of discrimination with the EEOC
“within three hundred days after the alleged unlawful employment practice
occurred,” 42 U.S.C. § 2000e-5(e)(1),7 and must then file an action in federal court
7
The three-hundred-day look-back period is in fact an extended period that Title
VII affords to plaintiffs complaining about conduct that occurred in a state with
its own antidiscrimination enforcement mechanisms, which includes New York.
As we explained more fully in Ford v. Bernard Fineson Development Center, 81 F.3d
304 (2d Cir. 1996):
Discrimination claims under Title VII and the ADEA
must ordinarily be “filed” with the EEOC within 180
15
within 90 days of receiving a right-to-sue letter from the agency, id.
§ 2000e-5(f)(1). The district court, straightforwardly applying those rules,
determined that because Duplan had brought a federal suit within 90 days of
receiving a right-to-sue letter for his 2014 EEOC complaint, but had not done so
after receiving such a letter for his 2011 EEOC complaint, only conduct occurring
300 days before he filed the 2014 complaint with the agency was properly
exhausted.
Duplan argues, however, that his 2011 EEOC charge should be deemed to
have exhausted any subsequent claims of retaliation for filing that charge. We
have, indeed, long recognized that in certain circumstances it may be unfair,
days of the date on which the “alleged unlawful
employment practice occurred.” 42 USC § 2000e–5(e)(1);
see 29 USC § 626(d)(1). However, if the alleged
discrimination took place in a state or locality that has
its own antidiscrimination laws and an agency to
enforce those laws, then the time period for “fil[ing]”
claims with the EEOC is extended to 300 days. 42 U.S.C.
§ 2000e–5(e)(1); 29 U.S.C. §§ 626(d)(2), 633(b). In this
case, the discrimination alleged by [the plaintiff] took
place in New York, which has both antidiscrimination
laws and an antidiscrimination agency. The 300–day
limit therefore applies.
Id. at 307.
16
inefficient, or contrary to the purposes of the statute to require a party to
separately re-exhaust new violations that are “reasonably related”to the initial
claim. Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir.
1993), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L.
No. 102-166, 105 Stat. 1072. Relevant to the present case, if a plaintiff has already
filed an EEOC charge, we have been willing to assume that the exhaustion
requirement is also met for a subsequent claim “alleging retaliation by an
employer against an employee for filing an EEOC charge.” Terry v. Ashcroft, 336
F.3d 128, 151 (2d Cir. 2003). Duplan seizes on that language to argue that he was
not required to exhaust any claims of retaliation for filing his 2011 EEOC
complaint (notwithstanding the fact that he actually did attempt to do so in his
2014 EEOC complaint). But because the conduct about which Duplan complains
occurred after the conclusion of the agency’s investigation and because Duplan
did not file suit within 90 days of receiving a right-to-sue letter on his 2011
complaint, accepting Duplan’s argument would be a significant and unwieldy
extension of our existing precedent, and one we now reject.
In the paradigmatic case for which the “reasonably related” doctrine was
adopted, retaliation occurs while the EEOC charge is still pending before the
17
agency. It is well established that the plaintiff may then sue in federal court on
both the adverse actions that gave the impetus for the initial EEOC charge and
the retaliation that occurred thereafter, even though no separate or amended
EEOC charge encompassing the subsequent retaliation was ever filed. See Owens
v. N.Y.C. Hous. Auth., 934 F.2d 405, 410–11 (2d Cir. 1991). That result stems from
several considerations. Most straightforwardly, the ongoing EEOC investigation
on the first charge would be expected to uncover and address any related
retaliation. See Butts, 990 F.2d at 1402. Forcing the parties into two concurrent
agency proceedings is also unlikely to produce “the princip[al] benefits of EEOC
involvement, [namely,] mediation of claims and conciliation.” Id. Moreover,
“requiring a plaintiff to file a second EEOC charge under these circumstances
could have the perverse result of promoting employer retaliation in order to
impose further costs on plaintiffs and delay the filing of civil actions relating to
the underlying acts of discrimination.” Id. In addition, some plaintiffs might be
effectively deterred from filing additional EEOC complaints if they suffered
severe retaliation as a result of their initial claim. Terry, 336 F.3d at 151.
But we have also applied the “reasonably related” doctrine to retaliation
that occurs after the EEOC investigation is complete, even though the rationale
18
that the retaliation likely was or should have been encompassed by the EEOC
investigation is not available in such cases. For instance, in Malarkey v. Texaco,
Inc., 983 F.2d 1204 (2d Cir. 1993), we observed that so long as the retaliation at
issue occurred after the filing of the initial EEOC complaint, there was “no reason
why a retaliation claim must arise before administrative proceedings terminate in
order to be reasonably related” to the initial claim for exhaustion purposes. Id. at
1209. In Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683 (2d Cir. 2001), a
more extreme case, the “reasonably related” act of retaliation occurred three
years after the plaintiff’s initial right-to-sue letter issued. See id. at 684–85; see also
Shah v. N.Y. Dep’t of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999) (applying
“reasonably related” doctrine to retaliatory acts occurring one and four years
after initial agency complaint).
Duplan attempts to analogize his situation to the facts of Legnani. There is,
however, a crucial distinction between that case and the present facts: in Legnani,
the “related” retaliation occurred while a timely federal lawsuit based on the
underlying discrimination charge was still pending. See 274 F.3d at 685. Thus, the
ongoing federal case stood in the same position as administrative proceedings for
the purpose of efficiency and other policy arguments outlined above. In other
19
words, Legnani had acted in a timely manner to bring her properly exhausted
claims to court, and the district court in that case erred by failing to recognize
that the efficiency of resolving all of the plaintiff’s related claims in the single,
already-pending lawsuit justified a departure from rigid adherence to the
statutory exhaustion requirement.8
Duplan, however, has long since abandoned his initial claim of
discrimination, because he failed to timely bring a lawsuit on that claim after
receiving a right-to-sue letter in 2012. In such a case, the underlying
discrimination claims that were the basis of the original EEOC charge are time-
barred. No administrative or judicial proceeding is still pending, and the
employee who suffers further discrimination or retaliation, like any other
employee with a potential Title VII claims, therefore remains subject to that
statute’s administrative exhaustion requirement. There is no reason to expand the
judicially created waiver of the statutory exhaustion requirement to permit
8
Duplan also suggests that his circumstance is analogous to the facts in Shah. It is
somewhat unclear whether the “related” retaliation at issue in Shah occurred
while the plaintiff’s EEOC investigation was on-going, or just after his federal
case was filed, but in any event, all of the conduct took place while Shah was in
the course of diligently pursuing his underlying, related claims. See 168 F.3d at
612, 614.
20
unexhausted retaliation claims to be held open indefinitely into the future, or
litigated without going through a new administrative process, simply because, if
the plaintiff had timely filed suit, policy considerations would have weighed in
favor of waiving the exhaustion requirement so that the retaliation claim could
have been joined with that hypothetical lawsuit.
Although we have not previously had occasion to make clear that
“reasonably related” retaliation claims are excused from the exhaustion
requirement only if they arise during the pendency of an EEOC investigation or a
timely filed federal case, that outcome is consistent with Title VII’s statutory
scheme and our existing case law. There is no indication in the text or legislative
history of Title VII that Congress intended to sanction a broad category of
unexhausted retaliation claims.
Notably, moreover, Title VII provides no alternative statute of limitations
that would apply to such delayed retaliation claims. As noted above, Title VII
claims ordinarily must be filed 90 days after the plaintiff receives a right-to-sue
letter from the agency. But if an employer waits more than 90 days to retaliate
against an employee for filing an EEOC complaint, the retaliation claim cannot be
brought within the statutory window. If a timely filed federal case is underway,
21
then the later instances of retaliation can be added to an amended complaint and
investigated using discovery in much the same way that they could have been
addressed during an ongoing EEOC investigation. But if there is no such case,
and we nevertheless suspend the exhaustion requirement as Duplan requests, we
would essentially be doing away with the statute of limitations requirement for
this class of claims.
To avoid creating a liability unbounded by any temporal limitation,
Duplan proposes that we treat “reasonably related” retaliation claims like other
federal causes of action for which there is no specified statute of limitations. He
suggests that we borrow an analogous state statute of limitations for such claims,
which, in the present case, would yield a three-year window. We see no reason to
strain so hard to find a palatable way to suspend Title VII’s requirements for an
entire category of claims. Exhaustion is “an essential element of Title VII’s
statutory scheme.” Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d
Cir. 2018) (internal quotation marks omitted). The “reasonably related” doctrine
is a limited, judge-made exception to that requirement, created to accommodate
22
practical concerns that are not present where a plaintiff failed to file a timely suit
on his original claim.9
In sum, retaliation claims arising during or after an EEOC investigation are
deemed exhausted when a plaintiff seeks to join them to a timely filed lawsuit on
his original, exhausted claims, because it would be burdensome and wasteful to
require a plaintiff to file a new EEOC charge instead of simply permitting him to
assert that related claim in ongoing proceedings to adjudicate the underlying
charge. But there is no compelling reason—efficiency-related or otherwise—to
grant a similar exception to a plaintiff like Duplan, who deliberately abandoned
his underlying claim of discrimination by failing to file a timely suit on those
claims. Accordingly, we reject Duplan’s argument that we should consider the
alleged acts of retaliation that were not timely presented to the EEOC after he
9
This outcome is also consistent with the reasoning behind our recent opinion in
Soules v. Connecticut, Dep’t of Emergency Servs. & Pub. Prot., 882 F.3d 52 (2d Cir.
2018), in which we held that res judicata barred a plaintiff from bringing
“reasonably related” retaliation claims that had arisen while the federal case on
the underlying complaint was still pending. Id. at 57–58. In Soules, we pointed out
that, in order to avoid such a bar, the plaintiff could have moved to amend his
federal complaint to include his related retaliation claim or could have requested
a stay to permit him to administratively exhaust his new claims. Id. The
reasoning in Soules turns on the notion that retaliation claims following an initial
complaint are exempted from the exhaustion requirement precisely because they
are related to an ongoing lawsuit.
23
failed to file a timely suit on the charges submitted in his 2011 EEOC complaint.
Instead, we consider only those acts that occurred within 300 days of his 2014
EEOC complaint, and were thereby properly exhausted, as well as related claims
of retaliation for filing the later EEOC charge.
2. Merits of the Exhausted 2011 Retaliation Claims
Retaliation claims under Title VII are analyzed pursuant to the well-known
McDonnell Douglas burden-shifting framework. Littlejohn, 795 F.3d at 315. At the
pleading stage, “the allegations in the complaint need only give plausible
support to the reduced prima facie requirements that arise under McDonnell
Douglas in the initial phase of a Title VII litigation.” Id. at 316. “[F]or a retaliation
claim to survive a motion for judgment on the pleadings or a motion to dismiss,
the plaintiff must plausibly allege that: (1) defendants discriminated—or took an
adverse employment action—against him, (2) because he has opposed any
unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d
72, 90 (2d Cir. 2015) (internal quotation marks omitted). With respect to Duplan’s
claims of acts of retaliation committed within 300 days of his 2014 EEOC
complaint, the City disputes only whether Duplan has adequately alleged the
24
second prong of that test, which goes to causation. We conclude that he has met
his minimal burden at the pleading stage of the case.10
To adequately plead causation, “the plaintiff must plausibly allege that the
retaliation was a ‘but-for’ cause of the employer’s adverse action. . . . ‘But-for’
causation does not, however, require proof that retaliation was the only cause of
the employer’s action, but only that the adverse action would not have occurred
in the absence of the retaliatory motive.” Vega, 801 F.3d at 90–91 (internal
quotation marks, alterations, and citations omitted). Causation may be shown by
direct evidence of retaliatory animus or inferred through temporal proximity to
the protected activity. Id.
Relying on Grant v. Bethlehem Steel Corporation, 622 F.2d 43 (2d Cir. 1980),
Duplan contends that the more than two-year delay between his first EEOC
10
Each discrete adverse employment action caused by retaliatory animus
constitutes a separate “unlawful employment practice” that could give rise to a
separate claim, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002);
however, because the parties do not discuss which of the acts alleged in the
complaint are cognizable adverse employment actions and because the theory of
causation on which Duplan prevails could potentially reach every adverse
employment action within the relevant period, we consider all of the potential
retaliation claims following the 2011 complaints as a single unit. On remand,
however, it may well be appropriate for the district court to disaggregate and
examine the viability of each constituent claim.
25
charge and these alleged adverse employment actions does not break the chain of
causation because the City retaliated against him at the “first available
opportunity” to do so in that particular manner. Appellant’s Br. at 26. Even
assuming that Grant establishes the principle that causation can be shown on that
theory, however, it would be difficult to apply it to the facts that Duplan has
alleged. In part, that problem is caused by the lengthy gap in time between his
initial protected act and the ensuing instances of retaliation that were properly
exhausted by his 2014 complaint. For instance, Duplan does not specify whether
he was eligible for or received other raises between his 2011 complaints and the
2013 raise he was denied. It is also unclear how we could apply a “first available
opportunity” theory to what Duplan alleges to be a persistent pattern of denying
his applications for new positions when he has only exhausted the last denial in
that chain.
Moreover, the bulk of the cases on which Duplan relies involved events
that occurred only at specific, regularly scheduled or anticipated times that
would present a particular opportunity for retaliatory conduct, such as annual
performance reviews, tenure evaluations, or a deliberate decision not to rehire a
plaintiff at the same time that other similarly situated workers were brought back
26
on board.11 Duplan, by contrast, contends that the City was lying in wait for
opportunities to retaliate against him that may or may not have ever occurred.
His “first available opportunity” theory would require us to find it plausible that
the City’s plan to retaliate against him included, among other things, biding its
time for three years until a flimsy sexual harassment complaint finally gave it an
excuse to suspend him.
But an inference of causation is more easily drawn when one considers the
facts as a whole. We recognized in Grant that “proof of causal connection can be
established indirectly by showing that protected activity is followed by
discriminatory treatment.” 622 F.2d at 46; see also Curcio v. Roosevelt Union Free
Sch. Dist., No. 10-CV-5612 SJF AKT, 2012 WL 3646935, at *14 (E.D.N.Y. Aug. 22,
2012) (observing that a “pattern of antagonism” over the intervening period may
be sufficient to demonstrate the requisite causal connection); Hous. Works, Inc. v.
City of New York, 72 F. Supp. 2d 402, 426 (S.D.N.Y. 1999) (same). Duplan alleges
11
See, e.g., Curcio v. Roosevelt Union Free Sch. Dist., No. 10-CV-5612 SJF AKT, 2012
WL 3646935, at *14–15 (E.D.N.Y. Aug. 22, 2012) (annual review, tenure
evaluation); Pacheco v. Park S. Hotel, LLC, No. 12 Civ. 9127 PAC, 2014 WL 292348,
at *4–5 (S.D.N.Y. Jan. 27, 2014) (rehiring seasonal workers); Quinby v. WestLB AG,
No. 04 Civ. 7406 WHP, 2007 WL 1153994, at *13 (S.D.N.Y. Apr. 19, 2007) (annual
bonus determinations, along with poor performance reviews).
27
that each of the adverse actions alleged above occurred against a backdrop of
continuing antagonism and frustration of his professional ambitions. Following
his 2011 complaints, his supervisors collectively and persistently discouraged
him from remaining at the Department by ostracizing him, giving him
insufficient work, and making clear to him that his career would not advance
further by denying him every promotion and raise. Those allegations establish a
drumbeat of retaliatory animus from which a plausible inference of causation can
be drawn. Because the burden for establishing a prima facie case of retaliation is
“de minimis,” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010), we conclude that
Duplan’s allegations are sufficient to survive at this stage. The district court, of
course, remains free to re-assess the viability of these claims after discovery on a
motion for summary judgment.
B. Retaliation Following the 2014 Complaints
Duplan also alleges that he suffered retaliation after making his 2014
complaints. Those allegations are deemed exhausted by the operation of the
“reasonably related” rule. The City contends that those claims should
nevertheless fail because Duplan failed to adequately allege that he suffered an
adverse employment action following his 2014 complaints. We disagree.
28
An adverse employment action in a retaliation case includes conduct that
is “harmful to the point that it could well dissuade a reasonable worker from
making or supporting a charge of discrimination.” Shultz v. Congregation Shearith
Israel, 867 F.3d 298, 309 (2d Cir. 2017) (brackets omitted). We have previously
recognized “‘significantly diminished material responsibilities’ as the sort of
employment action ‘sufficiently disadvantageous to constitute an adverse
employment action’ in a Title VII case.” Patane v. Clark, 508 F.3d 106, 116 (2d Cir.
2007), quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004).
Duplan alleges that his responsibilities were so diminished shortly after he filed
his 2014 complaint, when the City assigned him duties well below his civil
service and functional titles and took away his access to the personnel
management program, thereby rendering him unable to perform the sole task he
had retained from his pre-2011 responsibilities.12 Accordingly, we conclude that
12
The district court determined that Duplan had not adequately alleged an
adverse employment action, in part, because of the New York State agency’s
determination that some of the assignments about which Duplan complained fell
within his civil service title. Even assuming that the district court properly took
judicial notice of the state finding, it erred to the extent that it suggested that that
finding might be dispositive of Duplan’s Title VII claim. The state agency did not
actually address all of the new, allegedly below-title tasks enumerated in
Duplan’s complaint, nor did it resolve Duplan’s claim that the assignment of
more menial tasks was linked to the reduction of his remaining substantive
29
Duplan’s allegations that he suffered an adverse employment action in retaliation
for filing his 2014 EEOC complaint are sufficient to avoid dismissal of his 2014
retaliation claim at the pleading stage.
C. Hostile Work Environment Claim
Finally, Duplan contends that he was subjected to a hostile work
environment in retaliation for his 2011 and 2014 complaints. “In order to establish
a hostile work environment claim under Title VII, a plaintiff must produce
enough evidence to show that the workplace is permeated with discriminatory
intimidation, ridicule, and insult[] that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010)
(internal quotation marks omitted). “A plaintiff must show not only that []he
subjectively perceived the environment to be abusive, but also that the
environment was objectively hostile and abusive.” Id. Duplan’s allegations are
not sufficient to meet that high bar.
assignments. Duplan has thus plausibly alleged that the actions, taken together,
sufficiently diminished his responsibilities. Once again, further factual
development may lead to rejection of this claim, and we do not attempt to predict
how the district court on summary judgment, or a jury at trial, might evaluate the
facts after discovery.
30
CONCLUSION
We have considered Duplan’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, we VACATE those portions of
the district court’s judgment that dismiss Duplan’s Title VII retaliation claims
with respect to alleged adverse actions occurring within 300 days before, or
shortly after, he filed his 2014 EEOC charge. We AFFIRM the judgment in all
other respects, and REMAND for proceedings consistent with this opinion.
31