   12-3606
   Robinson v. Goulet


                   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 17th day of May, two thousand thirteen.

   PRESENT:
            JOHN M. WALKER, JR.,
            ROBERT D. SACK,
            RICHARD C. WESLEY,
                 Circuit Judges.
   _________________________________________

   DIANE ROBINSON,

              Plaintiff-Appellant,

              v.                               12-3606

   PETER GOULET, FACILITY MANAGER,

            Defendant-Appellee.
   _________________________________________


                                 1
     FOR APPELLANT:         Diane Robinson, pro se,
                            Schenectady, NY.

     FOR APPELLEE:          Henry M. Greenberg, Greenberg
                            Traurig, LLP, Albany, NY.

 1        Appeal from a judgment of the United States District
 2   Court for the Northern District of New York (McAvoy, J.).
 3
 4       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

 5   AND DECREED that the judgment of the district court be

 6   AFFIRMED IN PART, VACATED IN PART, and REMANDED for further

 7   proceedings consistent with this order.

 8       Appellant Diane Robinson, pro se, appeals from a

 9   judgment of the United States District Court for the

10   Northern District of New York (McAvoy, J.), entered on

11   August 13, 2012, granting her manager Peter Goulet’s motion

12   to dismiss her employment discrimination complaint pursuant

13   to Federal Rule of Civil Procedure 12(b)(6).   Robinson

14   alleged that Goulet violated Title VII of the Civil Rights

15   Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), by

16   discriminating against her on the basis of her sex and race,

17   retaliating against her for filing a complaint against him,

18   and creating a hostile work environment.   We assume the

19   parties’ familiarity with the underlying facts, the

20   procedural history of the case, and the issues on appeal.


                                  2
 1       This Court reviews de novo a district court decision

 2   dismissing a complaint pursuant to Rule 12(b)(6).     See

 3   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.

 4   2002).   To survive a motion to dismiss under Rule 12(b)(6),

 5   the complaint must plead “enough facts to state a claim to

 6   relief that is plausible on its face.”    Bell Atlantic Corp.

 7   v. Twombly, 550 U.S. 544, 570 (2007).    The law in this Court

 8   is currently unsettled with respect to the standard for

 9   assessing the pleadings in a Title VII case.     See Boykin v.

10   KeyCorp, 521 F.3d 202, 212-14 (2d Cir. 2008).     Regardless,

11   we remain obligated to construe pro se complaints liberally.

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

13   “dismissal of a pro se claim as insufficiently pleaded is

14   appropriate only in the most unsustainable of cases.”

15   Boykin, 521 F.3d at 216.

16       In addition to the requirement that pro se complaints

17   be liberally construed, we have held that district courts

18   should not generally dismiss a pro se complaint without

19   granting the plaintiff leave to amend.    See Cuoco v.

20   Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).     However, leave

21   to amend is not necessary when it would be futile.       See id.

22   (finding that leave to replead would be futile where the

23   complaint, even when read liberally, did not “suggest[] that
                                   3
 1   the plaintiff has a claim that she has inadequately or

 2   inartfully pleaded and that she should therefore be given a

 3   chance to reframe”).

 4       Here, the district court correctly concluded that

 5   Robinson’s complaint failed to state a claim against Goulet

 6   because individuals are not subject to suit under Title VII.

 7   See Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir.

 8   2003) (“[U]nder Title VII individual supervisors are not

 9   subject to liability.”).    However, the district court erred

10   in not granting Robinson leave to amend her complaint to

11   name the proper defendant, her employer, and to replead two

12   of her inartfully pleaded claims because it is not clear

13   that such amendments would be futile.    See Cuoco, 222 F.3d

14   at 112.

15       We reject Goulet’s argument that granting Robinson

16   leave to amend her complaint would be futile because her

17   complaint was untimely.    First, it is unclear whether the

18   date stamp on the EEOC Right to Sue Letter indicates that it

19   was mailed on January 23, 2012 or January 26, 2012 and if it

20   was the latter date, Robinson’s claim was timely filed.       See

21   42 U.S.C. § 2000e-5(f)(1) (requiring a plaintiff to file a

22   federal complaint within 90 days of receipt of an EEOC

23   right-to-sue letter).


                                    4
 1       Second, Robinson’s “allegations, taken as true,

 2   indicate the possibility of discrimination and thus present

 3   a plausible claim of disparate treatment.”      Boykin, 521 F.3d

 4   at 215-16.     Title VII makes it unlawful for an employer “to

 5   discharge any individual, or otherwise to discriminate

 6   against any individual with respect to his compensation,

 7   terms, conditions, or privileges of employment, because of

 8   such individual’s race, color, religion, sex, or national

 9   origin.”     42 U.S.C. § 2000e-2(a)(1).   Robinson alleged that

10   she was an African-American female, she was yelled and

11   cursed at “because [she is] Black and . . . a female,” and

12   that her work hours were reduced and she was prohibited from

13   working overtime, while other male and white employees did

14   not face similar reductions.     The loss of overtime hours or

15   pay on the basis of race or sex violates Title VII.       See

16   Austin v. Ford Models, Inc., 149 F.3d 148, 153 (2d Cir.

17   1998), abrogated on other grounds by Swierkiewicz v. Sorema

18   N.A., 534 U.S. 506 (2002).

19       Liberally construing the complaint, it is plausible

20   that Goulet’s alleged actions constituted a materially

21   significant disadvantage with respect to the terms and

22   conditions of Robinson’s employment.      Consequently,


                                     5
 1   Robinson’s complaint sufficiently pleaded the “possibility

 2   of discrimination.”    Boykin, 521 F.3d at 215-16.   Thus, we

 3   vacate the district court’s decision and remand the case

 4   with respect to Robinson’s disparate treatment claim.

 5       Additionally, Robinson should be allowed to amend her

 6   complaint to flesh out her retaliation claim.    To establish

 7   a retaliation claim under Title VII, a plaintiff must

 8   demonstrate that (1) she participated in a protected

 9   activity; (2) that activity was known to the defendant; (3)

10   the defendant took an employment action that disadvantaged

11   the plaintiff; and (4) a retaliatory motive played a part in

12   the adverse action.    See Kessler v. Westchester Cnty. Dep’t

13   of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).

14       Robinson has alleged that, inter alia, Goulet refused

15   her requests for time off, reduced her hours, and

16   “continually yelled and cursed” at her after Robinson filed

17   a complaint about him.    Although the content of that

18   complaint is somewhat unclear, her letter to the court

19   accompanying her civil complaint could be read as stating

20   that her internal complaint alleged both that Goulet had an

21   affair and, possibly, that he was giving white employees

22   special treatment.    Cf. Kelly v. Howard I. Shapiro & Assocs.



                                    6
 1   Consulting Eng’rs., P.C., NO. 12-3489, slip op. at 8-9 (2d

 2   Cir. Apr. 26, 2013) (finding that complaints about a

 3   “paramour preference” claim alone are not protected).

 4   Robinson also states that, after making her initial

 5   complaint, she was then assigned to work with a co-worker

 6   who made sexual advances, that she reported this harassment,

 7   and that her supervisors never followed up with her and

 8   instead accused her of being lazy.

 9        Reading her allegations generously, if given the

10   opportunity to amend her complaint, Robinson may be able to

11   plead sufficient facts to demonstrate that she had a

12   reasonable, good-faith belief that Goulet’s and her other

13   co-worker’s actions were unlawful under Title VII, that her

14   employer knew her complaints were about unlawful activity

15   (if she in fact complained of disparate treatment or sexual

16   harassment), that she suffered adverse employment actions,

17   and that these adverse actions were motivated at least in

18   part by retaliatory animus.    See id. at 205-06.

19        We affirm the district court’s dismissal of Robinson’s

20   hostile work environment claims, as Robinson does not allege

21   facts tending to show that Goulet’s or other’s actions were

22   “sufficiently severe or pervasive to alter the conditions of

23   [Robinson’s] employment and create an abusive working

                                     7
 1   environment.”   Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.

 2   2002) (internal quotation marks omitted).

 3        We have considered Robinson’s remaining arguments on appeal

 4   and find them to be without merit.   For the foregoing reasons,

 5   the judgment of the district court is hereby AFFIRMED IN

 6   PART, VACATED IN PART, and REMANDED for further proceedings

 7   consistent with this order.
 8
 9                             FOR THE COURT:
10                             Catherine O’Hagan Wolfe, Clerk
11
12

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