    14-3984
    Báez v. New York



                            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 2nd day of November, two thousand fifteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                ROSEMARY S. POOLER,
                DENNY CHIN,
                      Circuit Judges.
    _____________________________________

    Sarah Báez,

                             Plaintiff-Appellant,

                       v.                                                      14-3984


    The State of New York, New York State Office of
    Temporary and Disability Assistance,

                      Defendants-Appellees.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                                    Sarah Báez, pro se, New York, NY.

    FOR DEFENDANTS-APPELLEES:                                   Judith Vale, Assistant Solicitor
                                                                General (Barbara D. Underwood,
                                                                Solicitor General, Anisha S.
                                                                Dasgupta, Deputy Solicitor General,
                                                                Andrew W. Amend, Assistant
                                                                Solicitor General, on the brief), for
                                                             Eric T. Schneiderman, Attorney
                                                             General of the State of New York,
                                                             New York, NY.


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

New York (Nathan, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Sarah Báez, proceeding pro se, appeals the district court’s dismissal of her

employment discrimination and retaliation claims against the State of New York and her former

employer, the New York State Office of Temporary and Disability Assistance (“OTDA”), under

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., Title VII of the Civil

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

Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. 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 district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

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

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

F.3d 147, 152 (2d Cir. 2002). 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), and

“allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the

complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.”             Id.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory



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statements, do not suffice,” and pleadings that “are no more than conclusions[] are not entitled to

the assumption of truth.” Id. at 678–79. In the Title VII context, “at the initial stage of the

litigation . . . the plaintiff does not need substantial evidence of discriminatory intent,” and need

only “sustain a minimal burden of showing facts suggesting an inference of discriminatory

motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see also Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (“[A] plaintiff must allege that

the employer took adverse action against her at least in part for a discriminatory reason, and she

may do so by alleging facts that directly show discrimination or facts that indirectly show

discrimination by giving rise to a plausible inference of discrimination.”).

       Upon review, we conclude that the district court correctly ruled that sovereign immunity

barred Báez’s ADA and NYSHRL claims. Congress has not abrogated the states’ sovereign

immunity from suit under Title I of the ADA. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S.

356, 360 (2001). In addition, New York State has not consented to be sued in federal court under

the NYSHRL. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n.9 (1984);

Lambert v. N.Y. State Office of Mental Health, No. 97-cv-1347, 2000 WL 574193, at *7 (E.D.N.Y.

Apr. 24, 2000), aff’d, 22 F. App’x 71 (2d Cir. 2001). Accordingly, the district court properly

dismissed these claims.

       The district court also correctly concluded that most of the allegations supporting Báez’s

Title VII discrimination claim were untimely, and that her timely allegations failed to give rise to a

plausible inference of discrimination on the basis of national origin. Báez alleged no facts that

directly evidenced discriminatory animus against individuals of Puerto Rican or Hispanic descent,

and although she claimed that she was passed over for promotions in favor of less-qualified

candidates, by her own account, five of the six promoted were of Puerto Rican descent. Those


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promotions weigh heavily against an inference of discrimination, and nothing else in Báez’s

allegations is to the contrary.

        Báez’s Title VII retaliation claim fares no better. Báez relies on the temporal proximity

between her engagement in protected activities—specifically, the lawsuits she filed in 1992 and

2009—and the occurrence of adverse employment actions to establish the requisite causal nexus.

However, the alleged adverse employment actions consist of a gradual course of conduct

extending from approximately 2000 to early 2013. The district court correctly held that the gap

between her 1992 lawsuit and the earliest alleged incident was too long to raise an inference of

retaliation. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001). Similarly, the

fact that the alleged retaliatory course of conduct began long before she filed her 2009 lawsuit

undercuts any inference of a causal connection between the two. See Slattery v. Swiss Reins. Am.

Corp., 248 F.3d 87, 95 (2d Cir. 2001) (“Where timing is the only basis for a claim of retaliation,

and gradual adverse job actions began well before the plaintiff had ever engaged in any protected

activity, an inference of retaliation does not arise.”).1

        We have considered all of Báez’s 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




1
 The district court dismissed Báez’s claims relating to the post-2009 adverse employment actions
on the ground that she failed to allege that such actions were the result of a formal policy.
However, “[i]t is well settled that we may affirm on any grounds for which there is a record
sufficient to permit conclusions of law, including grounds not relied upon by the district court.”
Olsen v. Pratt & Whitney Aircraft, 136 F.3d 273, 275 (2d Cir. 1998) (internal quotation marks
omitted).

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