19-975 Dimps v. Taconic Correctional Facility
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 ASUMMARY ORDER@). A PARTY CITING TO 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 5th day of February, two thousand twenty.
PRESENT: PIERRE N. LEVAL, REENA RAGGI, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________
Shirley Dimps,
Plaintiff-Appellant,
v. 19-975
Taconic Correctional Facility, New York State Department of Corrections and Community Supervision, New York State Department of Civil Service, and Civil Service Employees Association, Inc.,
Defendants-Appellees.* _____________________________________
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
1 FOR PLAINTIFF-APPELLANT: Shirley Dimps, pro se, Bronx, NY.
FOR DEFENDANTS-APPELLEES: Darren J. Rylewicz, Leslie C. Perrin, Civil Service Employees Association, Inc., Albany, NY (for Civil Service Employees Association, Inc.).
Amit R. Vora, New York State Office of the Attorney General, New York, NY (for Taconic Correctional Facility, New York State Department of Corrections and Community Supervision, and New York State Department of Civil Service).
Appeal from a judgment of dismissal entered on March 27, 2019, in the United States
District Court for the Southern District of New York (Nelson S. Román, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,
and REMANDED.
Plaintiff Shirley Dimps, proceeding pro se, appeals the district court’s dismissal of her
action against the Taconic Correctional Facility (“Taconic”), the New York State Department of
Correction and Community Supervision (“DOCCS”), the New York State Department of Civil
Service (“DCS”) (together, the “State Defendants”), and the Civil Service Employees Association,
Inc. (“CSEA”). Against the State Defendants, Dimps asserted claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1981, the New York State Human Rights
Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Against CSEA,
2 her labor union, Dimps asserted a breach of the duty of fair representation claim under New York’s
Taylor Law. See N.Y. Civ. Serv. Law § 209-a. Dimps also asserted breach of contract claims
against all defendants. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
I. The State Defendants
Upon de novo review, see Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015), we conclude
that the district court correctly dismissed all claims against Taconic, the facility where Dimps
worked, because DOCCS, not Taconic, was Dimps’s employer, see N.Y. Correct. Law § 7(2).
The court also correctly dismissed Dimps’s ADA, ADEA, § 1981, and state-law claims against
DOCCS and DCS as barred by the Eleventh Amendment. The ADA, ADEA, and § 1981 do not
abrogate states’ sovereign immunity, which New York has not waived as to any of these claims.
See Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (ADA); Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 91 (2000) (ADEA); Edelman v. Jordan, 415 U.S. 651, 678 (1974) (§ 1983 and, by
extension, § 1981); Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (NYCHRL);
Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 449 (2d Cir. 1999) (NYSHRL),
abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). We
further agree with the district court that Dimps’s sparse and conclusory amended complaint does
not state plausible Title VII claims for failure to promote, hostile work environment, and retaliation
against DOCCS and DCS. See Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80, 82
(2d Cir. 2009) (stating elements of failure to promote and hostile work environment claims); Jute
v. Hamilton Sundstrand Corp., 420 F.3d 166, 172–73 (2d Cir. 2005) (stating elements of retaliation
claim).
3 Nevertheless, we conclude that the district court should not have dismissed Dimps’s Title
VII claims against DOCCS without affording her an opportunity to file a second amended
complaint. See generally Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“A pro se
complaint should not [be] dismiss[ed] without [the Court] granting leave to amend at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated.”
(internal quotation marks omitted)). When Dimps’s amended complaint is read together with
specific facts asserted in opposition to defendants’ motions to dismiss, there is at least an indication
that she may be able to state a plausible Title VII claim of race discrimination in promotion against
DOCCS. See Nielsen v. Rabin, 746 F.3d 58, 64 (2d Cir. 2014) (considering allegations raised in
opposition papers in vacating denial of leave to amend); Walker v. Schult, 717 F.3d 119, 122 n.1
(2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations
made by a pro se party in [her] papers opposing the motion.”). Specifically, her opposition filing
details five occasions when she was passed over for specific promotions awarded to equally or less
well-qualified candidates of other races and makes some showing that promotions at Taconic are
generally awarded not to African American or Hispanic employees but, rather, to Caucasian or
Indian candidates. See Aulicino, 580 F.3d at 80. Viewing these allegations liberally, and in light
of her pro se status, Dimps should have been afforded a further opportunity to plead her Title VII
claim of race discrimination.2
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19-975 Dimps v. Taconic Correctional Facility
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 ASUMMARY ORDER@). A PARTY CITING TO 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 5th day of February, two thousand twenty.
PRESENT: PIERRE N. LEVAL, REENA RAGGI, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________
Shirley Dimps,
Plaintiff-Appellant,
v. 19-975
Taconic Correctional Facility, New York State Department of Corrections and Community Supervision, New York State Department of Civil Service, and Civil Service Employees Association, Inc.,
Defendants-Appellees.* _____________________________________
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
1 FOR PLAINTIFF-APPELLANT: Shirley Dimps, pro se, Bronx, NY.
FOR DEFENDANTS-APPELLEES: Darren J. Rylewicz, Leslie C. Perrin, Civil Service Employees Association, Inc., Albany, NY (for Civil Service Employees Association, Inc.).
Amit R. Vora, New York State Office of the Attorney General, New York, NY (for Taconic Correctional Facility, New York State Department of Corrections and Community Supervision, and New York State Department of Civil Service).
Appeal from a judgment of dismissal entered on March 27, 2019, in the United States
District Court for the Southern District of New York (Nelson S. Román, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,
and REMANDED.
Plaintiff Shirley Dimps, proceeding pro se, appeals the district court’s dismissal of her
action against the Taconic Correctional Facility (“Taconic”), the New York State Department of
Correction and Community Supervision (“DOCCS”), the New York State Department of Civil
Service (“DCS”) (together, the “State Defendants”), and the Civil Service Employees Association,
Inc. (“CSEA”). Against the State Defendants, Dimps asserted claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1981, the New York State Human Rights
Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Against CSEA,
2 her labor union, Dimps asserted a breach of the duty of fair representation claim under New York’s
Taylor Law. See N.Y. Civ. Serv. Law § 209-a. Dimps also asserted breach of contract claims
against all defendants. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
I. The State Defendants
Upon de novo review, see Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015), we conclude
that the district court correctly dismissed all claims against Taconic, the facility where Dimps
worked, because DOCCS, not Taconic, was Dimps’s employer, see N.Y. Correct. Law § 7(2).
The court also correctly dismissed Dimps’s ADA, ADEA, § 1981, and state-law claims against
DOCCS and DCS as barred by the Eleventh Amendment. The ADA, ADEA, and § 1981 do not
abrogate states’ sovereign immunity, which New York has not waived as to any of these claims.
See Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (ADA); Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 91 (2000) (ADEA); Edelman v. Jordan, 415 U.S. 651, 678 (1974) (§ 1983 and, by
extension, § 1981); Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (NYCHRL);
Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 449 (2d Cir. 1999) (NYSHRL),
abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). We
further agree with the district court that Dimps’s sparse and conclusory amended complaint does
not state plausible Title VII claims for failure to promote, hostile work environment, and retaliation
against DOCCS and DCS. See Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80, 82
(2d Cir. 2009) (stating elements of failure to promote and hostile work environment claims); Jute
v. Hamilton Sundstrand Corp., 420 F.3d 166, 172–73 (2d Cir. 2005) (stating elements of retaliation
claim).
3 Nevertheless, we conclude that the district court should not have dismissed Dimps’s Title
VII claims against DOCCS without affording her an opportunity to file a second amended
complaint. See generally Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“A pro se
complaint should not [be] dismiss[ed] without [the Court] granting leave to amend at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated.”
(internal quotation marks omitted)). When Dimps’s amended complaint is read together with
specific facts asserted in opposition to defendants’ motions to dismiss, there is at least an indication
that she may be able to state a plausible Title VII claim of race discrimination in promotion against
DOCCS. See Nielsen v. Rabin, 746 F.3d 58, 64 (2d Cir. 2014) (considering allegations raised in
opposition papers in vacating denial of leave to amend); Walker v. Schult, 717 F.3d 119, 122 n.1
(2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations
made by a pro se party in [her] papers opposing the motion.”). Specifically, her opposition filing
details five occasions when she was passed over for specific promotions awarded to equally or less
well-qualified candidates of other races and makes some showing that promotions at Taconic are
generally awarded not to African American or Hispanic employees but, rather, to Caucasian or
Indian candidates. See Aulicino, 580 F.3d at 80. Viewing these allegations liberally, and in light
of her pro se status, Dimps should have been afforded a further opportunity to plead her Title VII
claim of race discrimination.2
Dimps, however, should attach to any such amended complaint her August 2016 EEOC
2 Even viewed liberally, Dimps’s opposition filing does not indicate that she can state valid ADA, ADEA, or § 1981 claims against individual DOCCS supervisors and, thus, there is no reason to grant leave to amend those claims. To be sure, Dimps advised the district court that she did not wish to file any second amended complaint. As became apparent at oral argument before this Court, this pro se litigant did not understand that the rules permit more than one amendment.
4 charge as well as any other claims subsequently raised before the EEOC, in order to demonstrate
the timeliness of her Title VII claim and the requisite exhaustion of administrative remedies.
II. CSEA
The district court dismissed Dimps’s claims against CSEA for lack of subject matter
jurisdiction and, in the alternative, for failure to state a claim. Further, it concluded that any
amendment would be futile. On de novo review, we agree. Neither Dimps’s amended complaint
nor her other filings in the district court indicate an ability to assert valid claims against CSEA.
See Chavis, 618 F.3d at 170.
* * *
We have considered Dimps’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment to the extent it dismisses all claims against Taconic, DCS,
and CSEA. We AFFIRM in part the judgment dismissing claims against DOCCS but VACATE
the judgment to the extent it denied leave to amend the Title VII claims against DOCCS. As to
these latter claims, we REMAND to the district court to allow Dimps an opportunity to amend her
complaint to allege Title VII claims against DOCCS to the extent she can demonstrate that those
claims were timely exhausted before the EEOC.
FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court