Iwelu v. New York State Office of Mental Health

• Court: Court of Appeals for the Second Circuit
• Decided: May 15, 2024
• Docket: 22-3096
• Status: Unpublished

Opinion

22-3096-cv Iwelu v. New York State Office of Mental Health

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 15th day of May, two thousand twenty-four.

PRESENT: GERARD E. LYNCH, JOSEPH F. BIANCO, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

KIDOCHUKWU IWELU,

Plaintiff-Appellant,

v. 22-3096-cv

NEW YORK STATE OFFICE OF MENTAL HEALTH, MARIE JEAN-LOUIS, DEPARTMENT HEAD, CLARENCE ADAMS, GARY RAY, MARGALY MONDESTIN, ANDREA FRANCIS, JESSE JOSHY, CREEDMOOR PSYCHIATRIC CENTER,

Defendants-Appellees. _____________________________________

FOR PLAINTIFF-APPELLANT: KIDOCHUKWU IWELU, pro se, Jamaica, New York.

FOR DEFENDANTS-APPELLEES: DAVID LAWRENCE, III, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Mark S. Grube, Senior Assistant Solicitor General, on the brief), for Letitia James, Attorney General for the State of New York, New York, New York.

Appeal from a judgment of the United States District Court for the Eastern District of New

York (William F. Kuntz, II, Judge).

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

DECREED that the judgment, entered on December 5, 2022, is AFFIRMED.

Plaintiff-Appellant Kidochukwu Iwelu, pro se, appeals the district court’s dismissal of his

employment discrimination claims and moves for summary reversal. Iwelu alleged that his former

employer Creedmoor Psychiatric Center (“Creedmoor”), a facility operated by the New York State

Office of Mental Health (“OMH”), and certain of its individual employees discriminated and

retaliated against him, while he was employed as a medical aide trainee, after he reported a fight

between another Creedmoor staff member and a patient, and that his reporting of the incident and

cooperation with a resulting investigation ultimately led to his termination. Iwelu asserted claims

under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq.; the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq.; Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.; New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. Law §§ 290, et seq.; and New York City Human Rights Law

(“NYCHRL”), N.Y.C. Admin. Code §§ 8-101, et seq. 1 The district court granted the defendants’

motion to dismiss all of the claims, pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6),

1 Iwelu raised other claims, which the district court dismissed. Iwelu has not challenged their dismissal on appeal. Thus, we deem those claims abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).

2 concluding that: (1) Iwelu failed to exhaust administrative remedies for his claims under the ADEA

and ADA, as well as his hostile work environment claim under Title VII; (2) Iwelu failed to state a

plausible claim under the ADA, ADEA, or Title VII; and (3) the claims under the NYSHRL and

NYCHRL were barred by the election of remedies doctrine because they arose from the same

incidents as those contained in his complaint to the New York State Division of Human Rights

(“DHR”). Although the district court did not reach this issue, OMH and Creedmoor argue on

appeal that state sovereign immunity bars the ADA, ADEA, NYSHRL, and NYCHRL claims

asserted against them and provides a separate ground for dismissal. We assume the parties’

familiarity with the underlying facts, procedural history, and issues on appeal, to which we refer

only as necessary to explain our decision. 2

We review a dismissal for failure to state a claim de novo. Washington v. Barr, 925 F.3d

109, 113 (2d Cir. 2019). 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).

I. Sovereign Immunity

OMH and Creedmoor contend that the claims brought against them under the ADA, ADEA,

NYSHRL, and NYCHRL are barred by the doctrine of sovereign immunity. 3 We agree.

The Eleventh Amendment to the Constitution deprives federal courts of the authority to

2 Given our conclusion that the dismissal of the claims should be affirmed on the various grounds discussed infra, we need not address the district court’s separate holding that Iwelu failed to exhaust his administrative remedies with respect to certain claims. 3 Although OMH and Creedmoor invoked sovereign immunity in the district court only as to the NYSHRL and NYCHRL claims, sovereign immunity “may be raised for the first time on appeal,” Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 238 (2d Cir. 2006); thus, we also consider the immunity issue under the ADA and ADEA.

3 entertain damages actions asserted against a state “absent [a] waiver or valid abrogation” of state

sovereign immunity. Va. Office for Prot. & Advoc. v. Stewart, 563 U.S. 247, 254 (2011); Dean v.

Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 193 (2d Cir. 2015). Congress has

not abrogated, and New York has not waived, its sovereign immunity from claims brought under

Title I of the ADA, the ADEA, NYSHRL, or NYCHRL. See Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356, 360 (2001) (Title I of the ADA); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91–92

(2000) (ADEA); Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 432, 449 (2d Cir.

1999) (NYSHRL), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53 (2006); Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (NYCHRL). Thus,

sovereign immunity bars these claims against OMH and Creedmoor. 4

However, Congress has abrogated sovereign immunity for Title VII claims. See

Fitzpatrick v. Bitzer, 427 U.S. 445, 448 (1976). We thus turn to the Title VII claims against OMH

and Creedmoor, as well as the NYSHRL and NYCHRL claims against the individual defendants. 5

II. Title VII Claims

Iwelu argues that the district court erred in holding that he failed to state a plausible claim

4 Iwelu does not dispute that New York’s Eleventh Amendment immunity extends to OMH and Creedmoor. Instead, his only argument is that such immunity does not apply here because his claims fall within the Ex Parte Young doctrine. Under that doctrine, a plaintiff “may avoid the Eleventh Amendment bar to suit by suing individual state officers in their official capacities, as opposed to the state, provided that [the] complaint (a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective.” Seneca Nation v. Hochul, 58 F.4th 664, 670 (2d Cir. 2023) (internal quotation marks and citation omitted). Because neither Creedmoor nor OMH is an individual state officer and Iwelu’s amended complaint does not concern an ongoing violation of federal law, the Ex Parte Young doctrine does not apply to Iwelu’s claims against Creedmoor or OMH. 5 Iwelu does not challenge the district court’s conclusion that his Title VII claims must be dismissed as to the individual defendants because there is no individual liability under that statute. To the extent that Iwelu attempts to assert claims against the individual defendants under the ADEA or ADA, such claims must also fail because there is no individual liability under either of those statutes. See 29 U.S.C. §§ 623(a), 630(b) (limiting cause of action under the ADEA to an action against an “employer”); Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (holding no individual liability for an ADA retaliation claim).

4 of discrimination, hostile work environment, or retaliation under Title VII. We find Iwelu’s

arguments unpersuasive.

A. Discrimination Claim

Under Title VII, it is unlawful for employers to, among other things, “discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race, color, religion,

sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). Claims brought pursuant to Title VII are

analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

05 (1973). See Littlejohn v. City of New York, 795 F.3d 297, 307–11 (2d Cir. 2015). In particular,

“absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the

complaint is that the plaintiff [1] is a member of a protected class, [2] was qualified, [3] suffered an

adverse employment action, and [4] has at least minimal support for the proposition that the

employer was motivated by discriminatory intent.” Id. at 311. To be sure, “at the initial stage of

the litigation” in a Title VII case, “the plaintiff does not need substantial evidence of discriminatory

intent.” Id. Instead, the plaintiff “need only give plausible support to a minimal inference of

discriminatory motivation.” Id.; accord Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,

86–87 (2d Cir. 2015). However, even under this “minimal burden,” Littlejohn, 795 F.3d at 311,

the plaintiff must allege sufficient allegations to “nudge[] [his] claims across the line from

conceivable to plausible,” Vega, 801 F.3d at 87 (first alteration in original) (quoting Twombly, 550

U.S. at 570).

Iwelu generally asserted that he was terminated because of his race and national origin, but

provided no factual allegations that would permit a reasonable inference that his termination was

connected to a protected ground under Title VII. Indeed, he alleged that he was terminated because

5 he reported a fight between a staff member and a patient, and then cooperated in an investigation

of that incident. Those grounds for termination, without any allegations supporting an inference

of discrimination, do not articulate a plausible discrimination claim under Title VII. See generally

Vill. of Freeport v. Barrella, 814 F.3d 594, 613 (2d Cir. 2016) (“[F]ederal antidiscrimination law

does not forbid . . . . favoritism, nepotism, or cronyism, so long as it is not premised on animus

against a protected class.”).

In sum, although a plaintiff’s burden at this stage is “not onerous,” Littlejohn, 795 F.3d at

308 (internal quotation marks and citation omitted), a plaintiff cannot establish a prima facie case

with a “conclusory and unsupported argument” that adverse action based on a non-protected

characteristic constitutes animus against a protected class, Maraschiello v. City of Buffalo Police

Dep’t, 709 F.3d 87, 96–97 (2d Cir. 2013). Because Iwelu’s complaint merely raises conclusory

allegations of a discriminatory termination, but fails to offer any facts to support such allegations,

the district court properly dismissed the discrimination claim. See Ashcroft v. Iqbal, 556 U.S. 662,

681 (2009) (noting that “conclusory” allegations are “not entitled to be assumed true”). 6

B. Hostile Work Environment Claim

To state a hostile work environment claim, “a plaintiff must plead facts that would tend to

show that the complained of conduct: (1) is objectively severe or pervasive—that is, creates an

environment that a reasonable person would find hostile or abusive; (2) creates an environment that

the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment

because of the plaintiff’s [protected class].” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)

6 At oral argument, Iwelu suggested that other individuals that do not belong to his protected classes made similar reports about fights between patients but were not subject to disciplinary actions. Those allegations do not appear in his amended complaint, however, and even assuming that they did, Iwelu has not explained—in his pleadings, briefs, or oral argument—how any such individuals were similarly situated to him in the relevant respects.

6 (alteration adopted) (internal quotation marks and citation omitted).

Iwelu’s hostile work environment claim suffers from the same pleading defect as his Title

VII discrimination claim. More specifically, Iwelu alleges that a colleague harassed him by

pushing him and preventing him from entering a ward. However, “[i]t is axiomatic that the

plaintiff also must show that the hostile conduct occurred because of a protected characteristic.”

Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (emphasis added); see also Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (“Title VII does not prohibit all verbal or physical

harassment in the workplace,” only discrimination on a protected ground.). Iwelu did not plead

any facts suggesting that his colleague’s actions, or any other alleged harassment in the workplace,

were motivated by a prohibited animus. Therefore, the district court properly dismissed the hostile

work environment claim.

C. Retaliation Claim

To establish a prima facie case of retaliation, a plaintiff must show: “(1) participation in a

protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment

action; and (4) a causal connection between the protected activity and the adverse employment

action.” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (internal quotation marks and citations

omitted). Although a “plaintiff need not establish that the conduct []he opposed was actually a

violation of Title VII,” he must have “possessed a good faith, reasonable belief that the underlying

employment practice was unlawful under that statute.” Galdieri-Ambrosini v. Nat’l Realty & Dev.

Corp., 136 F.3d 276, 292 (2d Cir. 1998) (internal quotation marks and citation omitted). Further,

“implicit in the requirement that the employer have been aware of the protected activity is the

requirement that it understood, or could reasonably have understood, that the plaintiff’s opposition

was directed at conduct prohibited by Title VII.” Id.

7 Here, Iwelu alleged that he was retaliated against after he reported the fight between a staff

member and a patient, but his report was not “directed at conduct prohibited by Title VII.” Rojas

v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011) (per curiam) (emphasis,

internal quotation marks, and citation omitted). Thus, there are no allegations allowing for a

plausible inference that his complaint was premised on, or related to, discrimination based on his

protected status. See Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10,

15 (2d Cir. 2013) (per curiam). Nor can there be any plausible claim that his supervisor

understood, or could reasonably have understood, that his complaint was directed at conduct

prohibited by Title VII. See id.; see also Manoharan v. Columbia Univ. Coll. of Physicians &

Surgeons, 842 F.2d 590, 594 (2d Cir. 1988) (employee failed to establish a reasonable belief that

the employer’s action was unlawful because his complaints “were directed at something that, as it

was alleged, is not properly within the definition of an ‘unlawful employment practice’” (quoting

42 U.S.C. § 2000e–3(a))). Therefore, the district court properly dismissed the retaliation claim

under Title VII.

III. NYSHRL and NYCHRL Claims

Finally, the district court properly dismissed Iwelu’s NYSHRL and NYCHRL claims,

including those asserted against the individual defendants, because he elected to pursue those claims

before the DHR. See York v. Ass’n of the Bar of the City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002)

(“NY[S]HRL and [NY]CHRL claims, once brought before the []DHR, may not be brought again

as a plenary action in another court.”).

* * *

We have considered Iwelu’s remaining arguments and conclude that they are without merit.

Accordingly, the judgment of the district court is AFFIRMED. Because the district court properly

8 dismissed Iwelu’s complaint, we DENY Iwelu’s motion for summary reversal.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court