     08-3010-cv, 09-1789-cv
     La Grande v. DeCrescente Distributing Co., Inc.


                                   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.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 23rd day of March, two thousand ten.
 4
 5   PRESENT:
 6
 7                      DEBRA ANN LIVINGSTON,
 8                      GERARD E. LYNCH
 9                                      Circuit Judges,*
10
11
12   QUENTIN LA GRANDE,
13             Plaintiff-Appellant,
14
15            -v.-                                               Nos. 08-3010-cv, 09-1789-cv
16                                                               Summary Order
17   DECRESCENTE DISTRIBUTING CO., INC.,
18            Defendant-Appellee,
19
20
21                                         Quentin La Grande, pro se, Albany, NY, for Plaintiff-Appellant.
22
23                                         Christopher P. Langlois; Girvin & Ferlazzo, P.C., Albany, NY,
24                                         for Defendant-Appellee.
25
26
27



              *
              The Honorable Rosemary S. Pooler, originally assigned to this panel, did not participate
     in the consideration of this appeal. The remaining two members of the panel, who are in
     agreement, have determined this matter. See Second Circuit Internal Operating Procedure E(b);
     28 U.S.C. § 46(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
 1          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgments of the district court are AFFIRMED IN PART, VACATED IN

 3   PART, and REMANDED for further proceedings consistent with this order.

 4          In the case filed under docket number 08-3010-cv, Plaintiff-Appellant Quentin La Grande,

 5   pro se, appeals from a judgment of the United States District Court for the Northern District of New

 6   York (Scullin, J.) entered on June 9, 2008, granting the motion of his former employer, Defendant-

 7   Appellee DeCrescente Distributing Company (“DeCrescente Company”), to dismiss his employment

 8   discrimination complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). La Grande alleged

 9   that his employer violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Under

10   docket number 09-1789-cv, La Grande appeals separately from a judgment entered on March 30,

11   2009, denying his motion for reconsideration and awarding attorneys’ fees to DeCrescente Company.

12   We hereby consolidate the two appeals for the purposes of disposition. We assume the parties’

13   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

14   I.     Standard for Motion to Dismiss

15          “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

16   construing the complaint liberally, accepting all factual allegations in the complaint as true, and

17   drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d

18   147, 152 (2d Cir. 2002). “To survive a motion to dismiss, a complaint must plead ‘enough facts to

19   state a claim for relief that is plausible on its face.’” Ruotolo v. City of New York, 514 F.3d 184, 188

20   (2d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

21   facial plausibility when the plaintiff pleads factual content that allows the court to draw the

22   reasonable inference that the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft,


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 1   589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).

 2   However, even post-Twombly, we “remain obligated” to construe pro se complaints liberally. Harris

 3   v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

 4          It is unclear whether the district court consistently applied the correct standard in assessing

 5   the sufficiency of La Grande’s complaint. While at times the court indicated that it was treating La

 6   Grande’s allegations as true and drawing all reasonable inferences from them, see La Grande v.

 7   DeCrescente Distrib. Co., Inc., No. 06-cv-467, 2008 WL 2385799, at *4 (N.D.N.Y. June 9, 2008),

 8   the court also indicated that pursuant to its interpretation of the Northern District’s Local Rule

 9   7.1(b)(3), where a plaintiff fails to oppose a motion to dismiss, “the movant’s burden of persuasion

10   is lightened such that, in order to succeed, his motion need only be facially meritorious,” id. at *3

11   (internal quotation marks omitted). The court also emphasized that it had warned La Grande that

12   his failure to respond to the Defendant’s motion to dismiss could result in the dismissal of his

13   complaint. Id.

14          While the district court in this case did not simply enter default judgment in favor of

15   DeCrescente Company, and proceeded to address the merits of the motion to dismiss, its suggestion

16   that it could have dismissed the complaint on the basis of default was incorrect. In a previous case

17   involving this same local rule, we explained that a failure to respond to a Rule 12(b)(6) motion

18   cannot constitute default justifying dismissal of the complaint. See McCall v. Pataki, 232 F.3d 321,

19   322-23 (2d Cir. 2000) (explaining that the sufficiency of a complaint is a matter of law that the

20   district court “is capable of determining based on its own reading of the pleading and knowledge of

21   the law,” and that, if a complaint is sufficient to state a claim on which relief can be granted, “the

22   plaintiff’s failure to respond to a Rule 12(b)(6) motion does not warrant dismissal”).


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 1           In any event, our independent assessment of La Grande’s complaint indicates that the district

 2   court erred in dismissing several of his claims. We turn to those now.

 3   II.     Hostile Work Environment Claims

 4           “To state a hostile work environment claim in violation of Title VII, a plaintiff must plead

 5   facts that would tend to show that the complained of conduct: (1) ‘is objectively severe or pervasive,

 6   that is, . . . the conduct creates an environment that a reasonable person would find hostile or

 7   abusive’; (2) creates an environment ‘that the plaintiff subjectively perceives as hostile or abusive’;

 8   and (3) ‘creates such an environment because of the plaintiff’s sex,’” Patane v. Clark, 508 F.3d 106,

 9   113 (2d Cir. 2007) (per curiam) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001)), or

10   because of another characteristic protected by Title VII. See Gregory, 243 F.3d at 692 (indicating

11   that any characteristic protected by Title VII is sufficient to satisfy the third element). “For liability

12   to attach, the employer must also be responsible for the conduct at issue.” Id. at 692 n.3.

13           A.      Sex-Based Hostile Work Environment Claim

14           We have explained that “it is ‘axiomatic’ that in order to establish a sex-based hostile work

15   environment under Title VII, a plaintiff must demonstrate that the conduct occurred because of [his]

16   sex.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Brown v. Henderson, 257 F.3d

17   246, 252 (2d Cir. 2001)). La Grande’s district manager’s alleged sexual comments about women

18   cannot plausibly be construed as creating a hostile environment based on La Grande’s gender. While

19   La Grande may have been offended by the allegedly vulgar remarks, “Title VII does not establish

20   a ‘general civility code’ for the American workplace.” Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d

21   Cir. 2004) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). We

22   therefore affirm the district court’s conclusion that La Grande failed to state a sex-based hostile work

23   environment claim.

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 1           B.      Race-Based Hostile Work Environment Claim

 2           Ordinarily, a race-based hostile work environment claim must involve “more than a few

 3   isolated incidents of racial enmity.” Williams v. County of Westchester, 171 F.3d 98, 100-01 (2d Cir.

 4   1999) (per curiam) (quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986)). However,

 5   “[t]he fact that the law requires harassment to be severe or pervasive before it can be actionable does

 6   not mean that employers are free from liability in all but the most egregious of cases.” Whidbee v.

 7   Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (quoting Torres v. Pisano, 116 F.3d

 8   625, 631 (2d Cir. 1997)). “[P]erhaps no single act can more quickly alter the conditions of

 9   employment and create an abusive working environment than the use of an unambiguously racial

10   epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Rodgers v.

11   Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (internal quotation marks and

12   citation omitted), quoted in Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000).

13           More recently, we have held in the summary judgment context that, where the evidence

14   supporting a plaintiff’s hostile work environment claim reflected two sets of derogatory racial

15   comments by two different people in a work environment over a multi-year period, the district court,

16   in assessing the frequency of such remarks, should have discounted from its analysis the intervening

17   two-year period between comments by one supervisor and comments by another. See Aulicino v.

18   N.Y. City Dep’t of Homeless Servs., 580 F.3d 73, 83-84 (2d Cir. 2009). In Aulicino, we explained

19   that a realistic picture of the hostile workplace alleged by the employee was not obtained by focusing

20   on a two-year stretch of time in which he failed to allege acts of hostility and using that time to dilute

21   the strength of his claims based on two discrete periods of more intense harassment. Id. at 84. We

22   also emphasized that the severity of such comments must be considered in the light most favorable

23   to the plaintiff, and further explained that comments that “may be inferred to be physical threats”

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 1   may be sufficiently severe to preclude summary judgment. Id. at 85.

 2           Here, La Grande alleged that in November 2003 one of his co-workers “made racial

 3   comments about black men being lazy, and about black men using white females to take care of

 4   them.” Amended Compl. ¶ 1 (internal quotation marks omitted). When La Grande complained

 5   about these comments to his employer’s human resources department, he was allegedly threatened

 6   with termination, told that his complaint was not “sufficient,” and his workload was then doubled.

 7   Further, on four dates in early July 2004, La Grande alleged that a company manager physically

 8   threatened him and called him a “nigger,” making it “mentally[] and physically impossible” for him

 9   to work. Id. at ¶11. Based on these allegations, La Grande has stated a plausible race-based hostile

10   work environment claim sufficient to survive dismissal. In light of Aulicino, the district court erred

11   by focusing on the fact that the comments “involved two different people” and “were separated by

12   more than seven months.” La Grande, 2008 WL 2385799, at *5. We therefore vacate the district

13   court’s decision and remand the case with respect to La Grande’s race-based hostile work

14   environment claim.

15   III.    Disparate Treatment Claim

16           Title VII makes it unlawful for an employer, inter alia: “to discriminate against any

17   individual because of his race . . . in admission to, or employment in, any program established to

18   provide apprenticeship or other training.” 42 U.S.C. § 2000e-2(d). To prevail on a Title VII

19   disparate treatment claim, a plaintiff must ultimately prove that “(1) he is a member of a protected

20   class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered

21   an adverse employment decision or action; and (4) the decision or action occurred under

22   circumstances giving rise to an inference of discrimination based on his membership in the protected

23   class.” Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). Everyday workplace

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 1   grievances, disappointments, and setbacks do not constitute adverse employment actions within the

 2   meaning of Title VII. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000).

 3   Instead, an actionable adverse employment action is “a materially significant disadvantage with

 4   respect to the terms of [plaintiff’s] employment.” Williams v. R.H. Donnelley, Corp., 368 F.3d 123,

 5   128 (2d Cir. 2004) (internal quotation marks omitted), such as “termination of employment, a

 6   demotion . . . , a less distinguished title, a material loss of benefits, significantly diminished material

 7   responsibilities, or other indices . . . unique to a particular situation,” Galabya, 202 F.3d at 640

 8   (internal quotation marks and citation omitted). At the pleading stage, a plaintiff need not establish

 9   a prima facie case satisfying the required elements of disparate treatment, but only sufficient facts

10   to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

11   Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008).

12           The district court incorrectly found that La Grande had not alleged an adverse employment

13   action. La Grande’s complaint stated that his employer provided merchandising training for only

14   the white workers and that he was not allowed to attend the training even though it was “part of the

15   job.” See Amended Compl. ¶ 6. Training is a benefit of employment that receives protection under

16   Title VII. See 42 U.S.C. § 2000e-2(d); see also Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 76-79

17   (2d Cir. 2001) (concluding that summary judgment was improperly granted to defendant on

18   plaintiff’s failure-to-train claim under the Age Discrimination in Employment Act). Further,

19   liberally construing the complaint, it is plausible that the DeCrescente Company’s alleged action was

20   a materially significant disadvantage with respect to the terms of La Grande’s employment,

21   particularly if the training was “part of the job” and barring him from the training diminished his

22   material responsibilities or opportunities. See Galabya, 202 F.3d at 640. Thus, we vacate the district

23   court’s decision and remand the case with respect to La Grande’s disparate treatment claim.

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 1   IV.     Retaliation Claims

 2           Title VII also provides that “[i]t shall be an unlawful employment practice for an employer

 3   to discriminate against any . . . employee[] . . . because [the employee] has opposed any practice

 4   made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). “To state a claim

 5   for retaliation in violation of Title VII, a plaintiff must plead facts that would tend to show that: (1)

 6   [he] participated in a protected activity known to the defendant; (2) the defendant took an

 7   employment action disadvantaging [him]; and (3) there existed a causal connection between the

 8   protected activity and the adverse action.” Patane, 508 F.3d at 115 (citing Feingold v. New York,

 9   366 F.3d 138, 156 (2d Cir. 2004)). It is well-established that a “plaintiff may prevail on a claim for

10   retaliation even when the underlying conduct complained of was not in fact unlawful so long as he

11   can establish that he possessed a good faith, reasonable belief that the underlying challenged actions

12   of the employer violated [the] law.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)

13   (internal quotation marks omitted). The law protects employees in the filing of formal charges of

14   discrimination as well as in the making of informal protests of discrimination, including complaints

15   to management. See Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Here, although

16   (as the district court pointed out) La Grande may not predicate a retaliation claim on his complaints

17   that he himself was discriminated against on the basis of sex, since there was no reasonable basis for

18   such complaints, La Grande has sufficiently alleged that, in response to his complaints about the

19   sexual harassment of a female customer and about a co-worker’s racial remarks, he was threatened

20   with termination and given a higher work load.

21           La Grande’s complaint alleged that, in response to his internal complaints about a

22   co-worker’s racial remarks, a human resources assistant threatened to terminate his employment and

23   had his work load doubled. See Amended Compl. ¶ 1. As the Supreme Court has explained, any

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 1   action that “could well dissuade a reasonable worker from making or supporting a charge of

 2   discrimination” may constitute retaliation. Burlington N., 548 U.S. at 57. The district court erred

 3   in concluding that La Grande had no plausible retaliation claim because he could not have reasonably

 4   believed that “two isolated incidents of race-based comments, occurring more than seven months

 5   apart, could constitute misconduct that was severe or pervasive.” La Grande, 2008 WL 2385799,

 6   at *6. The test for whether someone has “a good faith, reasonable belief” that the underlying

 7   complained of conduct violated the law does not turn on whether the conduct was ultimately “severe

 8   or pervasive” enough to constitute a violation of Title VII. See Treglia, 313 F.3d at 719. The district

 9   court also erred in dismissing La Grande’s retaliation claims on the basis of sex discrimination.

10   Even though La Grande does not state a sex-based hostile work environment claim under Title VII,

11   he may prevail on a claim for retaliation if he can establish that he possessed a good faith, reasonable

12   belief that he was complaining about unlawful actions to his employer. Treglia, 313 F.3d at 719;

13   see also Manigaulte v. C.W. Post of Long Island Univ., 659 F. Supp. 2d 367, 374-75 (E.D.N.Y.

14   2009) (permitting a non-disabled professor who complained of discrimination against disabled

15   students to assert a claim for retaliation). Thus, we vacate the district court’s decision and remand

16   the case with respect to these retaliation claims.

17   V.     Treatment of Pro Se Pleadings

18          As the Supreme Court has emphasized, “a pro se complaint, however inartfully pleaded, must

19   be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

20   551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “This

21   obligation entails, at the very least, a permissive application of the rules governing the form of

22   pleadings.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Although there

23   is “nothing wrong with the suggestion that, as a matter of ‘best practices’ or general guidance offered

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 1   to all pro se litigants, plaintiffs should be asked to organize their complaints along [certain] lines .

 2   . . a threat to dismiss the action for failure to comply with these requirements is another matter.” Id.

 3   at 192; see also id. (“[A] complaint need not contain detailed factual allegations—such as the dates

 4   of misconduct and the names of ‘each and every individual’ involved in the misconduct that the

 5   District Court required plaintiff to provide in the amended complaint. There was no basis for the

 6   imposition of such mandatory guidelines.”). Here, the district court erred by suggesting that La

 7   Grande would face dismissal if he failed to provide, inter alia, “the dates, times and places of the

 8   alleged wrongful acts[] and the individual(s) who committed each alleged wrongful act.” Order, La

 9   Grande v. DeCrescente Distrib. Co., Inc., No. 06-cv-467 (N.D.N.Y. June 19, 2006).

10          “Equally inappropriate . . . was the Magistrate Judge’s decision to ‘reject and return’ [La

11   Grande’s pro se] submissions.” Sealed Plaintiff, 537 F.3d at 192. While a district court has

12   considerable discretion in managing its docket and the submission of filings, this Court cannot

13   clearly discern the contents of La Grande’s submissions because they were not made part of the

14   record. Id. (“Hence an additional flaw of the ‘reject and return’ policy adopted by the Magistrate

15   Judge is that a reviewing court has no ability to determine what relief the pro se litigant sought from

16   the district court and therefore is unable to determine whether the matter was resolved properly. The

17   better course is for pro se submissions to be docketed and filed so that they appear in the record of

18   the case.”). With respect to La Grande’s March 2007 letter motion, it is not clear whether he was

19   trying to assert a supplemental state law claim, amend his pleadings, merely bring to the district

20   court’s attention that he had filed a complaint in state court, or, if liberally construed, assert

21   something that might have constituted a response to the Defendant’s motion to dismiss. It is also

22   not clear why his purported “second amended complaint” was stricken from the record, other than

23   the magistrate judge’s comment that it appeared to be a document La Grande had already filed in

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 1   state court. With respect to La Grande’s April 2007 letter motion, it seems that he sought a stay

 2   based on the magistrate judge’s document rejection order, but the document is unavailable for our

 3   review.

 4   VI. Award of Attorneys’ Fees

 5             After the dismissal of his complaint, La Grande moved for reconsideration and DeCrescente

 6   cross-moved for an award of attorneys’ fees as the prevailing party under 42 U.S.C. § 2000e-5(k).

 7   The district court denied the motion for reconsideration and awarded DeCrescente $5,533.50 in fees,

 8   citing La Grande’s continued litigation of an action that “lacked any arguable basis in fact or law.”

 9   La Grande v. DeCrescente Distrib. Co., Inc., No. 06-cv-467, 2009 WL 890584, at *6 (N.D.N.Y.

10   Mar. 30, 2009). La Grande appealed that order under docket number 09-1789-cv. That appeal was

11   initially dismissed for failure to pay a filing fee, but was reinstate when La Grande informed the

12   Court that the district court had granted him in forma pauperis status. The appeal was then

13   dismissed again when La Grande failed to comply with a scheduling order by filing a timely brief.

14   After reviewing the merits of the appeal in 08-3010-cv, we held the mandate in 09-1789-cv.

15             The award of attorneys’ fees to DeCrescente based on the frivolity of La Grande’s complaint

16   cannot survive our holding that most of the claims in that complaint in fact state valid claims for

17   relief. Accordingly, we vacate our prior order dismissing the appeal in 09-1789-cv, consolidate the

18   two appeals, vacate the district court’s order denying reconsideration and granting attorneys’ fees

19   to DeCrescente, and remand for reconsideration by the district court in light of this order.

20             For the foregoing reasons, the judgments of the district court are hereby AFFIRMED IN

21   PART, VACATED IN PART, and REMANDED for further proceedings consistent with this order.

22
23                                                          FOR THE COURT:
24                                                          Catherine O’Hagan Wolfe, Clerk
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