13-666-cv
Gorokhovsky v. N.Y.C. Hous. Auth.

                                      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 29th day of January, two thousand fourteen.

PRESENT:

           JOSÉ A. CABRANES,
           REENA RAGGI,
           SUSAN L. CARNEY,
                                Circuit Judges.
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LYUDVIG GOROKHOVSKY,

                     Plaintiff-Appellant,

                               -v.-                                                        No. 13-666-cv

NEW YORK CITY HOUSING AUTHORITY, MANAGER OF ISAAC
HOLMES HOUSES, (IHH) EFRAIM DIAZ, IN HIS OFFICIAL
CAPACITY, JEFFREY OTERO, ISAAC HOLMES HOUSES
SUPERVISOR, DAWN PINNOCK, IN HER OFFICIAL CAPACITY,
NYCH DIRECTOR OF HUMAN RESOURCES, SUED IN HER
PERSONAL CAPACITY, PAUL VITALE, NEW YORK CITY
HOUSING AUTHORITY DIRECTOR, SUED IN HIS OFFICIAL
CAPACITY, GISEL PAULINO, NEW YORK CITY HOUSING
AUTHORITY CARETAKER, SUED IN HER PERSONAL CAPACITY,
WILLIAM RODRIGUEZ, SUED IN HIS OFFICIAL CAPACITY,

                     Defendants-Appellees,




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CITY OF NEW YORK,

                     Defendant.

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FOR PLAINTIFF-APPELLANT:                                                  Linda M. Cronin, Cronin & Byczek, LLP, Lake
                                                                          Success, NY.

FOR DEFENDANTS-APPELLEES:                                                 Donna M. Murphy, for Kelly D. MacNeal,
                                                                          Acting General Counsel of the New York City
                                                                          Housing Authority, New York, NY.


       Appeal from a judgment, entered May 19, 2011, of the United States District Court for the
Southern District of New York (Leonard B. Sand, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED IN PART AND
REVERSED IN PART.

         Plaintiff Lyudvig Gorokhovsky appeals from the judgment of the District Court dismissing
his complaint in favor of defendants. Gorokhovsky’s suit alleged that the New York City Housing
Authority and its employees (jointly, “NYCHA”) unlawfully engaged in employment discrimination
based upon his race, national origin, and age; created a hostile work environment; and retaliated
against him for exercising his First Amendment rights. He brought claims under the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”); Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); 42 U.S.C. §§ 1981, 1983 and 1985; the New
York State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL”); the New York City Human
Rights Law, N.Y.C. Admin. Code §§ 8-101 et seq. (“NYCHRL”); and the First Amendment to the
United States Constitution. We assume the parties’ familiarity with the underlying facts, procedural
history, and the issues on appeal.

          We review a district court’s Rule 12(b)(6) dismissal of a complaint de novo. See Famous Horse
Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). The complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). Although all allegations contained in the complaint are assumed to be true, this tenet is
“inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim will have
“facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.

        The District Court granted defendants’ motion to dismiss the complaint as to all but one
claim for failure to exhaust administrative remedies, untimeliness, and failure to state a claim on


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which relief could be granted. (The single remaining claim was a discriminatory pay claim, which
Gorokhovsky later voluntarily withdrew with prejudice.)

        We reverse the District Court’s dismissal of the NYCHRL claims asserted in Count Nine,
because it improperly applied the same standard as in its analysis of the ADEA, Title VII, and
NYSHRL claims. See Gorokhovsky v. City of New York, No. 10 Civ. 8848 (LBS), 2011 WL 2019423, at
*6 n.5 (S.D.N.Y. May 19, 2011) (citing Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n.1 (2d Cir. 2009)).
However, as we recently clarified, the New York City Council changed the standard that applies to
discrimination claims brought under the NYCHRL by statute in 2005. See Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 108–09 (2d Cir. 2013) (citing Local Civil Rights Restoration Act
of 2005, N.Y.C. Local L. No. 85). We held that claims under the NYCHRL are to be evaluated
separately from federal and state law claims and given liberal, independent construction. Id. at 109.

         To state a claim for discrimination under the NYCHRL, a plaintiff must only show
differential treatment of any degree based on a discriminatory motive; “the NYCHRL does not
require either materially adverse employment actions or severe and pervasive conduct.” Id. at 114.
In a hostile work environment claim under the NYCHRL, “even ‘a single comment’ may be
actionable in appropriate circumstances.” Id. (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d
27, 40–41 & n.30 (1st Dep’t 2009)). And to prevail on a retaliation claim under the NYCHRL, a
plaintiff need only show that he “took an action opposing [his] employer’s discrimination, and that,
as a result, the employer engaged in conduct that was reasonably likely to deter a person from
engaging in such action.” Id. at 112 (citation omitted).

        At the pleadings stage and under such a liberal construction, we conclude that Gorokhovsky
has stated plausible claims under the NYCHRL for discrimination on the basis of national origin
and age; a hostile work environment; and retaliation. Accordingly, we reverse the District Court’s
dismissal of the NYCHRL claims. However, because we conclude that there are no remaining
viable federal claims, we decline to exercise supplemental jurisdiction. See 28 U.S.C. § 1367.
Accordingly, Gorokhovsky’s claims under the NYCHRL are dismissed without prejudice to his
pursuing them in state court.

        As to all of Gorokhovsky’s remaining claims, we have conducted an independent and de novo
review of the record, and conclude that the District Court properly granted the defendants’ motion.
As to those claims, we affirm substantially for the reasons stated by the District Court in its
thorough opinion of May 18, 2011.




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                                        CONCLUSION

       We have considered Gorokhovsky’s remaining arguments on appeal and find them to be
without merit. For the reasons set out above, we AFFIRM IN PART AND REVERSE IN
PART the May 19, 2011 judgment of the District Court. In the absence of a viable federal claim,
we decline to exercise supplemental jurisdiction over Gorokhovsky’s claims under the NYCHRL,
and dismiss them without prejudice.



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




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