    17-2281
    Richardson v. Manhattan N.Y.C. Transit Auth., Headquarters


                            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 29th day of March, two thousand eighteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                PIERRE N. LEVAL,
                      Circuit Judge,
                ANDREW L. CARTER, JR.,*
                      District Judge.
    __________________________________________

    HALANA RICHARDSON,

                                Plaintiff-Appellant,

                      v.                                                        17-2281

    MANHATTAN NEW YORK CITY TRANSIT
    AUTHORITY, HEADQUARTERS,

                                Defendant-Appellee.

    __________________________________________


    * Judge Andrew L. Carter, Jr., of the United States District Court for the Southern District of
    New York, sitting by designation.

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FOR PLAINTIFF-APPELLANT:                               Halana Richardson, pro se, New York, NY.

FOR DEFENDANT-APPELLEE:                                No appearance.



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

New York (McMahon, C.J.).


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

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

and the case is REMANDED for further proceedings consistent with this order.

       Plaintiff-appellant Halana Richardson, proceeding pro se, appeals from a judgment

dismissing her action against the New York City Transit Authority (“NYCTA”), in which she

alleged sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq. The district court (McMahon, C.J.) dismissed sua sponte Richardson’s

amended complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) and denied

leave to amend. 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 sua sponte dismissal under 28 U.S.C. § 1915(e)(2).”

Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018). To avoid dismissal, a

complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We afford a pro



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se litigant “special solicitude” by interpreting a complaint filed pro se “to raise the strongest claims

that it suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks and

alterations omitted).

       The district court concluded that Richardson did not plead “that any alleged adverse

employment actions resulted from her engagement in activity protected under Title VII.” App. at

7. We agree. “To state a claim for retaliation in violation of Title VII, a plaintiff must plead facts

that would tend to show that: (1) she participated in a protected activity known to the defendant;

(2) the defendant took an employment action disadvantaging her; and (3) there exists a causal

connection between the protected activity and the adverse action.” Patane v. Clark, 508 F.3d 106,

115 (2d Cir. 2007) (per curiam). While Richardson alleges that she lodged several complaints with

NYCTA’s management, none of them supports a retaliation claim, either because they do not

represent activity protected by Title VII or because Richardson makes no allegation that NYCTA

took any adverse employment action against her as a result of such activity. Accordingly, we affirm

the judgment to the extent it dismissed Richardson’s retaliation claim.

       The district court also decided that Richardson failed to allege facts showing that the

alleged harassment was “motivated [by] her race, color, sex, or any other impermissible factor.”

App. at 7; see Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that

mistreatment at work, whether through subjection to a hostile environment or through such

concrete deprivations as being fired or being denied a promotion, is actionable under Title VII

only when it occurs because of an employee’s sex, or other protected characteristic.”). However,

we conclude that the amended complaint, interpreted “to raise the strongest claims that it



                                                   3
suggests,” Hill, 657 F.3d at 122 (internal quotation marks and alterations omitted), does permit an

inference that certain alleged actions were motivated by Richardson’s sex.

       Richardson alleged that she “was yelled at [and] called a ‘bitch’ . . . in front of other

coworkers . . . because [she] would not entertain their advances, nor go out with them let alone

have sex with these men.” Am. Compl. at 18, Richardson v. Manhattan Transit Auth. N.Y.C.

Headquarters, No. 16-cv-1304-CM (S.D.N.Y. Feb 22, 2017), ECF No. 5 (“Am. Compl.”). One

male coworker, who Richardson alleged was “infatuated with [her]” (and whom she had reported

for unrelated misconduct), allegedly posted notices calling her a “SNITCH BITCH” and took other

actions to intimidate her, such as urinating in a booth while she was inside and bumping her hard

enough to knock her down. Id.; see Raniola v. Bratton, 243 F.3d 610, 622 (2d Cir. 2001) (“[P]rior

derogatory comments by a co-worker may permit an inference that further abusive treatment by

the same person was motivated by the same sex-bias manifested in the earlier comments.”).

Richardson alleged that a supervisor “left the notices up for viewing,” and that her “coworkers[,]

especially the male coworkers[,] mocked [her] with the very words that were on the [notices].”

Am. Compl. at 18. Richardson also alleged that she “would not entertain” another male coworker’s

“verbal advances asking [her] about [her] clothing and hair,” which angered him, and that he

physically pushed past her in an intimidating manner. Id. at 15, 17. She further alleged that a

supervisor told her to give that coworker “the benefit of the doubt” during a meeting attended by

many male coworkers, which she understood as the supervisor giving permission for further

harassment. Id. at 15; cf. Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (explaining

that a supervisor’s derogatory comment about a plaintiff in front of her male coworkers heightened

its discriminatory impact).

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        Given those allegations, we respectfully conclude that Richardson’s Title VII claim for

discrimination should not have been dismissed on the basis that she failed to allege facts permitting

an inference that the alleged mistreatment occurred because of her sex, and we vacate the judgment

to the extent that it dismissed that claim.1

        For the foregoing reasons, the judgment is AFFIRMED to the extent it dismissed

Richardson’s Title VII claim for retaliation and VACATED to the extent it dismissed

Richardson’s Title VII claim for discrimination because of sex. We REMAND for further

proceedings consistent with this order.

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




1
  In dismissing the amended complaint for failure to state a claim, the district court noted that
Richardson failed to show that she had exhausted her administrative remedies. However, in
another case decided by this Court after the district court’s ruling here, we held that the failure to
plead exhaustion of administrative remedies does not justify dismissing a complaint sua sponte
because “the burden of pleading and proving Title VII exhaustion lies with defendants and
operates as an affirmative defense.” Hardaway, 879 F.3d at 491.

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