Antrobus v. New York City Health and Hospitals Corp.

• Court: Court of Appeals for the Second Circuit
• Decided: October 13, 2023
• Docket: 21-891
• Status: Unpublished

Opinion

21-891-cv Antrobus v. New York City Health and Hospitals Corp.

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 13th day of October, two thousand twenty-three.

Present: DEBRA ANN LIVINGSTON, Chief Judge, BETH ROBINSON, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

JOANNE J. ANTROBUS,

Plaintiff-Appellant,

v. 21-891

NEW YORK CITY HEALTH AND HOSPITALS CORPORATION,

Defendant-Appellee,

DAVID CHEUNG, CLAUDIA CANOSA, MARIANNE I. MARCIAS, ANGELA TAYLOR, JASMIN WU,

Defendants. _____________________________________

For Plaintiff-Appellant: VALDI LICUL, Wigdor LLP, New York, NY.

1 For Defendant-Appellee: REBECCA L. VISGAITIS, Of Counsel (Richard Dearing and Jane L. Gordon, Of Counsel, on the brief), for Sylvia O. Hinds-Radix, Corporation Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Failla, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Joanne Antrobus (“Appellant”) appeals from a judgment of the United

States District Court for the Southern District of New York (Failla, J.) dismissing her third

amended complaint (the “Complaint”) in its entirety. The Complaint alleges that Defendant-

Appellee New York City Health and Hospitals Corporation (“Appellee”) discriminated against

Appellant on the basis of her age, retaliated against her for filing complaints to that effect, created

a hostile work environment, and constructively discharged her in violation of the Age

Discrimination in Employment Act of 1967 (“ADEA”), the New York State Human Rights Law

(“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). In a March 15, 2021

opinion and order, the district court concluded that each of Appellant’s claims for age

discrimination and some of her claims for retaliation were time-barred, and that her remaining,

timely-pled claims were facially deficient. For the reasons set forth below, we affirm the district

court’s judgment. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

* * *

We review de novo a dismissal of a complaint under Federal Rule of Civil Procedure

12(b)(6), “accepting all factual allegations in the complaint as true and drawing all reasonable

2 inferences in the plaintiff’s favor.” Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016). This

standard is well established. To survive a motion to dismiss, a complaint must contain “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A claim is facially plausible ‘when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Chamberlain v. City of White Plains, 960 F.3d 100, 105 (2d Cir. 2020) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

In “deferral” states such as New York, a plaintiff asserting claims under the ADEA must

file a charge with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of

the alleged unlawful practice. See Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164, 166 (2d

Cir. 1998). Here, Appellant alleges that she filed two complaints with the EEOC—one at some

point in 2015 and another on February 19, 2019. She also asserts that she filed a complaint with

Appellee’s internal Equal Employment Opportunity (“EEO”) office on March 29, 2016. As

Appellant did not rely on her earlier EEOC complaint in the proceedings below, the district court

found that any claim that accrued before April 25, 2018—300 days before the filing of the second

EEOC complaint on February 19, 2019—was time-barred. We agree.

Appellant cannot now raise the argument that her 2015 EEOC complaint renders conduct

that occurred in and before 2015, as well as in 2016, timely. Appellant did not raise this argument

below and has therefore forfeited it. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the

general rule . . . that a federal appellate court does not consider an issue not passed upon below.”);

Gindi v. N.Y.C. Dep’t of Educ., 786 Fed. Appx. 280, 282 (2d Cir. 2019) (summary order)

(“Arguments presented for the first time on appeal are generally forfeited, even in cases involving

pro se litigants.”).

3 We also agree with the district court’s conclusion that Appellant has stated timely claims

for retaliation following the filing of her 2019 EEOC complaint, creation of a hostile work

environment, and constructive discharge. First, this Court has held that the ADEA’s

administrative exhaustion requirement is exempted “where the complaint is one alleging retaliation

by an employer against an employee for filing an EEOC charge.” Terry v. Ashcroft, 336 F.3d

128, 151 (2d Cir. 2003) (internal quotation marks and citation omitted). Appellant’s post-

February 19, 2019 retaliation claim makes such an allegation and is therefore timely. Second,

Appellant’s constructive discharge claim, which is predicated on Appellee’s alleged retaliatory

conduct after the 2019 EEOC complaint was filed, falls within the same exception to the

administrative exhaustion requirement and is timely for substantially the same reason as the

retaliation claim. Finally, the hostile work environment claim is timely under the continuing

violation doctrine. Drawing all reasonable inferences in Appellant’s favor, the Complaint

plausibly alleges at least “one act contributing to the claim [that] occurred within the statutory

period[,]” making this claim timely. Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir.

2004).

Given that Appellant’s hostile work environment claim is timely, “the entire time period

of the hostile work environment may be considered by [the Court] for the purposes of determining

liability.” Id. The district court properly determined that Appellant’s claims for retaliation

postdating 2015 could be considered in evaluating the hostile work environment claim, but that

her February 2011 retaliation claim and her failure-to-promote claims could not. The Complaint

alleges a series of conduct that resulted in a hostile work environment: Appellee’s initial retaliatory

conduct following the complaints filed in 2015 and 2016, and Appellee’s subsequent acts of

retaliation after the 2019 EEOC charge was filed. While the claims for retaliation after 2015 are

4 allegedly part of the same “ongoing discriminatory polic[y] or practice[],” Appellant’s remaining

claims—for retaliation occurring in February 2011 and failure-to-promote—are not. Cornwell v.

Robinson, 23 F.3d 694, 704 (2d Cir. 1994). As stated, those claims constitute “discrete

discriminatory acts” which the continuing violation doctrine renders neither timely nor capable of

consideration in conjunction with Appellant’s timely hostile work environment claim. Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

Finally, the district court correctly held that the timely-pled claims in the Complaint are

facially deficient. First, the Complaint does not assert a timely claim for age discrimination.

Appellant argues that, as with her failure-to-promote claims, the allegations in the Complaint

concerning her decreased workload, less favorable assignments, deprivation of information critical

to her job, isolation at work, and receipt of unsolicited inquiries about her retirement should be

construed as stating a claim for age discrimination. But a plain reading of the Complaint, drawing

all reasonable inferences in Appellant’s favor, forecloses this argument. The Complaint

explicitly attributes those changes to the filing of her EEOC complaints and labels them as

retaliatory acts. While the Complaint refers to a “series of incidents” in which she was

“discriminated against because of [her] age[,]” the subsequent paragraph makes clear that those

incidents were the occasions in which she was denied a promotion or career advancement

opportunity. A-155. Thus, the Complaint does not state a plausible age discrimination claim.

Second, the only timely claim for retaliation in the Complaint—concerning unsolicited

retirement inquiries after the 2019 EEOC complaint was filed—is not adequately pled. As the

district court found, Appellant’s failure to allege that Appellee knew that her 2019 EEOC

complaint had been filed is fatal to this claim. See Wanamaker v. Columbian Rope Co., 108 F.3d

462, 465 (2d Cir. 1997) (“A prima facie case of retaliation under the ADEA requires proof that

5 . . . (2) the employer was aware of the plaintiff’s participation in the protected activity . . . .”).

Even assuming arguendo the adequacy of Appellant’s pleading in this regard, the claim is deficient

for another reason: inquiries about retirement, at least in the manner alleged by Appellant, do not

constitute an adverse employment action. To the contrary, discussions about retirement are “a

normal part of workplace dialogue between a supervisor and subordinate.” Boonmalert v. City

of New York, 721 Fed. Appx. 29, 32 (2d Cir. 2018) (summary order). Those conversations, then,

should not ordinarily be considered “a materially adverse change in the terms and conditions of

employment.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015).

Without a properly stated adverse employment action, Appellant’s retaliation claim fails. See

Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 303 n.6 (2d Cir. 2021) (“To establish a

prima facie case of retaliation under the ADEA, a plaintiff must show . . . (3) an adverse

employment action . . . .”) (internal quotation marks and citation omitted).

Third, the hostile work environment claim, which is predicated on allegations of retaliatory

conduct after Appellant filed complaints about Appellee’s discriminatory practices, is likewise

deficient. The factual allegations that can be considered in conjunction with this claim are that:

(1) Appellant received fewer assignments, had assignments taken away from her, was denied

access to critical information, and was isolated by her managers after filing her 2015 and 2016

complaints; and (2) Appellant was subjected to unsolicited inquiries about her retirement after

filing the 2019 complaint. These claims, viewed collectively, do not state a plausible hostile

work environment claim. Appellant has failed to allege, for example, which or how many

assignments were kept or taken away from her, what type of information was withheld from her,

how frequent those occurrences were, and whether her resulting workload was within the scope of

her job duties. Without this type of detail, the allegations in the Complaint fail to adequately

6 assert an alteration in “the terms and conditions of [Appellant’s] employment.” Alfano v.

Costello, 294 F.3d 365, 379 (2d Cir. 2002). The addition of Appellant’s retirement-related

allegations does not change that conclusion. These inquiries about Appellant’s retirement, which

is a normal topic of conversation between an employer and an employee and are not sufficiently

alleged to have “discriminatory overtones” in this case, id., were not “severe . . . enough to create

an objectively hostile or abusive work environment.” Gregory v. Daly, 243 F.3d 687, 691 (2d

Cir. 2001). Taken as a whole, the allegations are not such that a reasonable person in Appellant’s

circumstances would believe that her workplace was “so severely permeated with discriminatory

intimidation, ridicule, and insult that the terms and conditions of her employment were thereby

altered.” Alfano, 294 F.3d at 373. Accordingly, the hostile work environment claim also fails.

Finally, Appellant’s failure to state a claim for hostile work environment necessarily

renders her constructive discharge claim—which is predicated on the same allegations as the

hostile work environment claim—unsuccessful. See Fincher v. Depository Tr. & Clearing

Corp., 604 F.3d 712, 725 (2d Cir. 2010) (“[The standard for constructive discharge] is higher than

the standard for establishing a hostile work environment. Because [the plaintiff-appellant] failed

to establish a hostile work environment, her claim of constructive discharge also fails.”) (internal

citation omitted).

Accordingly, the district court properly dismissed the Complaint in its entirety for failure

to state a claim upon which relief can be granted.

7 We have considered Appellant’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk