    19-975
    Dimps v. Taconic Correctional Facility


                            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 5th day of February, two thousand twenty.

    PRESENT:
                PIERRE N. LEVAL,
                REENA RAGGI,
                DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _____________________________________

    Shirley Dimps,

                                 Plaintiff-Appellant,

                       v.                                                                    19-975

    Taconic Correctional Facility, New York State
    Department of Corrections and Community
    Supervision, New York State Department of
    Civil Service, and Civil Service Employees
    Association, Inc.,

                      Defendants-Appellees.*
    _____________________________________



    * The Clerk of Court is respectfully directed to amend the caption as set forth above.

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FOR PLAINTIFF-APPELLANT:                                   Shirley Dimps, pro se, Bronx, NY.

FOR DEFENDANTS-APPELLEES:                                  Darren J. Rylewicz, Leslie C. Perrin,
                                                           Civil Service Employees
                                                           Association, Inc., Albany, NY (for
                                                           Civil Service Employees
                                                           Association, Inc.).

                                                           Amit R. Vora, New York State
                                                           Office of the Attorney General, New
                                                           York, NY (for Taconic Correctional
                                                           Facility, New York State Department
                                                           of Corrections and Community
                                                           Supervision, and New York State
                                                           Department of Civil Service).

       Appeal from a judgment of dismissal entered on March 27, 2019, in the United States

District Court for the Southern District of New York (Nelson S. Román, J.).

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

DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,

and REMANDED.

       Plaintiff Shirley Dimps, proceeding pro se, appeals the district court’s dismissal of her

action against the Taconic Correctional Facility (“Taconic”), the New York State Department of

Correction and Community Supervision (“DOCCS”), the New York State Department of Civil

Service (“DCS”) (together, the “State Defendants”), and the Civil Service Employees Association,

Inc. (“CSEA”). Against the State Defendants, Dimps asserted claims under Title VII of the Civil

Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1981, the New York State Human Rights

Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Against CSEA,


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her labor union, Dimps asserted a breach of the duty of fair representation claim under New York’s

Taylor Law. See N.Y. Civ. Serv. Law § 209-a. Dimps also asserted breach of contract claims

against all defendants.     We assume the parties’ familiarity with the underlying facts, the

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

   I.        The State Defendants

          Upon de novo review, see Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015), we conclude

that the district court correctly dismissed all claims against Taconic, the facility where Dimps

worked, because DOCCS, not Taconic, was Dimps’s employer, see N.Y. Correct. Law § 7(2).

The court also correctly dismissed Dimps’s ADA, ADEA, § 1981, and state-law claims against

DOCCS and DCS as barred by the Eleventh Amendment. The ADA, ADEA, and § 1981 do not

abrogate states’ sovereign immunity, which New York has not waived as to any of these claims.

See Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (ADA); Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 91 (2000) (ADEA); Edelman v. Jordan, 415 U.S. 651, 678 (1974) (§ 1983 and, by

extension, § 1981); Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (NYCHRL);

Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 449 (2d Cir. 1999) (NYSHRL),

abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). We

further agree with the district court that Dimps’s sparse and conclusory amended complaint does

not state plausible Title VII claims for failure to promote, hostile work environment, and retaliation

against DOCCS and DCS. See Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 80, 82

(2d Cir. 2009) (stating elements of failure to promote and hostile work environment claims); Jute

v. Hamilton Sundstrand Corp., 420 F.3d 166, 172–73 (2d Cir. 2005) (stating elements of retaliation

claim).

                                                  3
         Nevertheless, we conclude that the district court should not have dismissed Dimps’s Title

VII claims against DOCCS without affording her an opportunity to file a second amended

complaint. See generally Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“A pro se

complaint should not [be] dismiss[ed] without [the Court] granting leave to amend at least once

when a liberal reading of the complaint gives any indication that a valid claim might be stated.”

(internal quotation marks omitted)). When Dimps’s amended complaint is read together with

specific facts asserted in opposition to defendants’ motions to dismiss, there is at least an indication

that she may be able to state a plausible Title VII claim of race discrimination in promotion against

DOCCS. See Nielsen v. Rabin, 746 F.3d 58, 64 (2d Cir. 2014) (considering allegations raised in

opposition papers in vacating denial of leave to amend); Walker v. Schult, 717 F.3d 119, 122 n.1

(2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations

made by a pro se party in [her] papers opposing the motion.”). Specifically, her opposition filing

details five occasions when she was passed over for specific promotions awarded to equally or less

well-qualified candidates of other races and makes some showing that promotions at Taconic are

generally awarded not to African American or Hispanic employees but, rather, to Caucasian or

Indian candidates. See Aulicino, 580 F.3d at 80. Viewing these allegations liberally, and in light

of her pro se status, Dimps should have been afforded a further opportunity to plead her Title VII

claim of race discrimination.2

         Dimps, however, should attach to any such amended complaint her August 2016 EEOC


2
  Even viewed liberally, Dimps’s opposition filing does not indicate that she can state valid ADA, ADEA, or § 1981
claims against individual DOCCS supervisors and, thus, there is no reason to grant leave to amend those claims. To
be sure, Dimps advised the district court that she did not wish to file any second amended complaint. As became
apparent at oral argument before this Court, this pro se litigant did not understand that the rules permit more than one
amendment.

                                                           4
charge as well as any other claims subsequently raised before the EEOC, in order to demonstrate

the timeliness of her Title VII claim and the requisite exhaustion of administrative remedies.

   II.      CSEA

         The district court dismissed Dimps’s claims against CSEA for lack of subject matter

jurisdiction and, in the alternative, for failure to state a claim. Further, it concluded that any

amendment would be futile. On de novo review, we agree. Neither Dimps’s amended complaint

nor her other filings in the district court indicate an ability to assert valid claims against CSEA.

See Chavis, 618 F.3d at 170.

                                         *       *       *

         We have considered Dimps’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment to the extent it dismisses all claims against Taconic, DCS,

and CSEA. We AFFIRM in part the judgment dismissing claims against DOCCS but VACATE

the judgment to the extent it denied leave to amend the Title VII claims against DOCCS. As to

these latter claims, we REMAND to the district court to allow Dimps an opportunity to amend her

complaint to allege Title VII claims against DOCCS to the extent she can demonstrate that those

claims were timely exhausted before the EEOC.


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




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