App. 1
`
`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 GOV-
`ERNED BY FEDERAL RULE OF APPELLATE
`PROCEDURE 32.1 AND THIS COURT'S LOCAL
`RULE 32.1.1. WHEN CITING A SUMMARY OR-
`DER IN A DOCUMENT FILED WITH THIS
`COURT, A PARTY MUST CITE EITHER THE
`FEDERAL APPENDIX OR AN ELECTRONIC
`DATABASE (WITH THE NOTATION "SUM-
`MARY ORDER"). A PARTY CITING A SUM-
`MARY ORDER MUST SERVE A COPY OF IT ON
`ANY PARTY NOT REPRESENTED BY COUN-
`SEL.
`
`At a stated Term of the United States Court
`of Appeals for the Second Circuit, held at the Thur
`good Marshall United States Courthouse, 40 Foley
`Square, in the City of New York on the 30th day of
`October, two thousand seventeen.
`RALPH K WINTER,
`Present
`GUIDO CALABRESI,
`ROSEMARY S. POOLER,
`Circuit Judges.
`
`
`
`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 GOV-
`ERNED BY FEDERAL RULE OF APPELLATE
`PROCEDURE 32.1 AND THIS COURT'S LOCAL
`RULE 32.1.1. WHEN CITING A SUMMARY OR-
`DER IN A DOCUMENT FILED WITH THIS
`COURT, A PARTY MUST CITE EITHER THE
`FEDERAL APPENDIX OR AN ELECTRONIC
`DATABASE (WITH THE NOTATION "SUM-
`MARY ORDER"). A PARTY CITING A SUM-
`MARY ORDER MUST SERVE A COPY OF IT ON
`ANY PARTY NOT REPRESENTED BY COUN-
`SEL.
`
`At a stated Term of the United States Court
`of Appeals for the Second Circuit, held at the Thur
`good Marshall United States Courthouse, 40 Foley
`Square, in the City of New York on the 30th day of
`October, two thousand seventeen.
`RALPH K WINTER,
`Present
`GUIDO CALABRESI,
`ROSEMARY S. POOLER,
`Circuit Judges.
`
`
`
`•
`
`App. 2
`
`LESLIE MOORE MIRA,
`
`Plaintiff-Appellant,
`16-4080-cv
`V.
`JOHN KINGSTON, BETH HARDER (EVANS),
`RICHARD RUBIN, KEVIN SAVILLE, PLATTS
`MCGRAW HILL FINANCIAL INC.,
`Defendants-Appellees.
`
`Appearing for Appellant: Leslie Moore Mira, New
`York, N.Y.
`Appearing for Appellee: Gregory Ira Rasin, Pros-
`kauer Rose LLP (Michelle Ann Annese, on the
`brief).
`Appeal from the United States District Court for
`the Southern District of New York (McMahon, J.).
`
`ON CONSIDERATION WHEREOF, IT IS
`HEREBY ORDERED, ADJUDGED, AND DE-
`CREED that the judgment of said District Court
`be and it hereby is AFFIRMED.
`
`Leslie Moore Mira, proceeding pro se, ap-
`peals from the November 3, 2016 judgment of the
`
`
`
`App. 3
`
`United States District Court for the Southern Dis-
`trict of New York (McMahon, J.) dismissing her Ti-
`tle VII complaint, which claimed gender and na-
`tional origin discrimination. We assume the par-
`ties' familiarity with the underlying facts, proce-
`dural history, and specification of issues for re-
`view.
`
`Contrary to defendants' arguments, we find
`Mira's notice of appeal sufficient to confer jurisdic-
`tion. Federal Rule of Appellate Procedure 30 re-
`quires a notice of appeal "designate the judgment,
`order, or part thereof being appealed." Fed. R. App.
`3(c)(1)(b) Gonzalez v. Thaler,132 S. Ct. 641, 652
`(2012) (Rule 3(c)(1) is jurisdictional). An appeal
`from a final judgment brings up interlocutory or-
`ders for review. See City ofNY v. Mickalis Pawn
`Shop, LLC, 645 F.3d 114, 141 n.25 (2d Cir. 2011)
`(stating that interlocutory orders rendered in a
`case merge with the final judgment, rendering
`them amenable to appellate review). Mira's notice
`of appeal designated the November 3, 2016 judg-
`ment granting "defendants' motion to dismiss [the]
`Title VII claims." Supp. App'x at 59. That designa-
`tion allows for review of all interlocutory orders in
`a case, see Mickalis Pawn Shop, LLC, 645 F.3d at
`141 n.25, which were not immediately appealable,
`see In re Repetitive Stress Injury Litig., 11 F.3d
`368, 372 (2d Cir. 1993) (consolidation orders are
`non- final); SEC v. Am. Rd. of Trade, Inc., 830 F.2d
`
`
`
`F13!JS
`
`431, 443 (2d Cir. 1987) (denial of leave to amend is
`a non-final order). Therefore, we have jurisdiction
`to review the denial of consolidation and the futil-
`ity of leave to amend.
`In the main, Mira argues that the district
`court erred by denying consolidation of this case
`with an action she brought against another former
`employer, Argus Media. We review the denial of a
`motion to consolidate for abuse of discretion. See
`In re Repetitive Stress Injury Litig., 11 F.3d at
`373. "A party moving for consolidation must bear
`the burden of showing the commonality of factual
`and legal issues in different actions, and a district
`court must examine the special underlying facts
`with close attention before ordering a consolida-
`tion." Id. (internal citations omitted). Mira failed
`to plausibly demonstrate a legal or factual connec-
`tion between her cases against Platts and Argus.
`In the Argus case, Mira alleged that after officers
`of two companies met the "guardedness" toward
`her "accelerated." The district court had the discre-
`tion to conclude that was not enough to merit con-
`solidation. See In re Repetitive Stress InjuryLitig.,
`11 F.3d at 373.
`"A pro se complaint should not be dismissed
`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."
`
`
`
`as Me
`Nielson v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)
`(internal quotation marks omitted).' The district
`court should have addressed Mira's requests to
`amend her complaint, even though Mira submitted
`letters instead of motions. See In re Sims, 534 F.3d
`117, 133 (2d Cir. 2008) (holding that pro se liti-
`gants should be allowed amendment more freely
`than counsel and that their rights should not be
`impaired-by "harsh application of technical rules"
`(internal citation omitted)). However, her
`amended complaint would not have withstood a
`motion to dismiss. Leave to amend may be denied
`when amendment would be futile. Nielson, 746
`F.3d at 62 (internal quotation marks omitted). "An
`amendment to a pleading is futile if the proposed
`claim could not withstand a motion to dismiss pur-
`suant to [Rule] 12(b)(6)." Lucente v. Int'l Bus. Ma -
`chines Corp., 310 F.3d 243, 258 (2d Cir. 2002). We
`review the denial of leave to amend based on futil-
`ity de novo. Hutchison v. Deutsche Bank Secs. Inc.,
`647 F.3d 479, 490 (2d Cir. 2011).
`Mira wished to present claims under 42
`U.S.C. §§ 1981 and 1985(3). Section 1981 protects
`against racial discrimination in employment rela-
`tionships, and most of the substantive Title VII
`standards apply to Section 1981 claims. Patterson
`v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).
`
`1 [Second Circuit order misspells Nielsen v. Rabin.]
`
`
`
`um
`As relevant here, Section 1985(3) requires a con-
`spiracy motivated by "some racial or perhaps oth-
`erwise class-based, invidious discriminatory ani-
`mus." Mian i'. Donaldson, Lufkin & Jenrette Secs.
`Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (quoting
`United Bhd. Of Carpenters, Local 610 v. Scott, 462
`U.S. 825, 829 (1983)).
`Mira's only allegation of race-based animus
`was that a supervisor implied that she was in-
`volved with illegal drug activity in Mexico. This
`comment is insufficient to demonstrate a hostile
`work environmenf leading to Mira's constructive
`termination. See Littlejohn v. City of N IC, 795
`F.3d 297, 320-21 (2d Cir. 2015) (holding that a
`plaintiff must show that the discriminatory har-,
`assment was "severe or pervasive" (quoting Harris
`v. ForklightSys., Inc., 510 U.S. 17, 21 (1993)). Her
`surveillance allegations lack any link to racial an-
`imus. See Gallop v. Cheney, 642 F.3d 364, 368 (2d
`Cir. 2011) (holding that a district court "may dis-
`miss a claim as factually frivolous if the suffi-
`ciently well-pleaded facts are clearly baseless—
`that is, if they are fanciful, fantastic, or delusional"
`(internal quotation marks omitted)). Similarly, as
`noted above, Mira's only allegation to support a
`conspiracy under § 1985 between Platts and Argus
`was one meeting between the two companies' offic-
`ers, and a meeting participant's later comment
`
`
`
`App. 7
`
`that she would close her blinds while in New York
`because of possible surveillance. This comment
`does not plausibly support a conspiracy against
`Mira, let alone one driven by discriminatory ani-
`mus. See Gallop, 642 F.3d at 369 (explaining that
`"claims of conspiracy containing only conclusory,
`vague, or general allegations of conspiracy to de-
`prive a person of constitutional rights cannot with-
`stand a motion to dismiss" (internal quotation
`marks omitted)).
`Mira's brief did not present any argument
`that could be construed as challenging the time-
`bar dismissal of her Title VII claims. Her effort to
`revive those claims in her reply brief is unavailing.
`See McBride v. BIG Consumer Prods. Mfg. Co., 583
`F.3d 92, 96 (2d Cir. 2009) ("We ordinarily will not
`consider issues raised for the first time in a reply
`brief."). Accordingly, she has waived these claims
`on appeal. See LoSacco v. City of Middletown, 71
`F.3d 88, 92-93 (2d Cir. 1995).
`We have considered the remainder of Mira's
`arguments and find them to be without merit. Ac-
`cordingly, the order of the district court hereby is
`AFFIRMED. Each side to bear its own costs.
`FOR THE COURT:
`Catherine O'Hagan Wolfe, Clerk
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`LESLIE MOORE MIRA, Plaintiff,
`No. 15 Civ. 09989 (CM)
`against-
`JOHN KINGSTON, et al., Defendants.
`
`MEMORANDUM DECISION AND
`ORDER GRANTING DEFENDANTS' MOTION
`TO DISMISS
`
`McMahon, J.:
`Plaintiff Leslie Moore Mira ("Plaintiff'), pro-
`ceeding pro se, is in this Court because she has as-
`serted a claim under Title VII of the Civil Rights
`Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII")
`against corporate Defendant Platts/McGraw Hill
`Financial, Inc., a division of S&P Global, Inc.
`("Platts"), and individual Defendants John King-
`ston; Beth Harder ("Evans"), Kevin Saville, and
`Richard Rubin. Plaintiffs not entirely clear pro se
`complaint appears to allege that Defendants retal-
`iated against her for speaking out against sexual
`harassment in the workplace by creating a racially
`hostile work environment (race being Mexican,
`
`
`
`which the court construes as national-origin dis-
`crimination), which led to her constructive dis-
`charge, in violation of Title VII, New York State
`Human Rights Laws, and New York City Human
`Rights Laws. Plaintiff further alleges that Defend-
`ants' conduct has persisted since her departure
`from her employment. Together, these events have
`adversely affected her life.
`Defendants have filed a motion to dismiss
`all claims as time-barred pursuant to Federal Rule
`of Civil Procedure '12(b)(6)- Defendant Beth Evans
`moves, pursuant to Rule 4(m), to dismiss because
`she has not properly been served.
`Because Plaintiffs federal claims are time-
`barred and because Plaintiff cannot plausibly as-
`sert that the period for filing her administrative
`charge against Defendant Platts her former em-
`ployer, was equitably, tolled, her federal claims
`(which lie only against her employer, not against
`the individual defendants) must be dismissed. The
`Court will not consider her claims under state and
`local law, which are before it only by virtue of sup-
`plemental jurisdiction. Accordingly, they are dis-
`missed without prejudice.
`
`BACKGROUND
`Plaintiffs Complaint
`
`
`
`App. 10
`
`For purposes of this motion to dismiss, all
`the allegations made in the complaint are accepted
`as true. Unless otherwise noted, they are drawn
`directly from the complaint. See Compl., ECF- No.
`2. ("Compl.").
`Plaintiff, whom I assume to be a female of
`Mexican origin, was a reputable employee of Platts
`prior to 2010 when the events that give rise to her
`complaint allegedly began. Plaintiff was employed
`by Defendant as a Senior Writer.
`In late December 2009/early 2010, Human
`Resources ("HR") interviewed Plaintiff about a
`sexual harassment complaint that had been filed
`by a female coworker against non-party Bob Di-
`Nardo. Although Plaintiff did not say anything
`negative about DiNardo during that interview, De-
`fendant Kingston, Plaintiffs supervisor, later said
`something about the fact that Plaintiff had partic-
`ipated in this interview, and did so in a negative
`manner.
`Around the same time, Plaintiff observed an
`unnamed non-party, whom Plaintiff refers to as
`"Party X," who repeatedly made sexually inappro-
`priate remarks and sexually objectified women in
`the office. Plaintiff never filed a sexual harassment
`complaint against Party x; instead, she asked a co-
`worker to report Party X's behavior in her upcom-
`
`
`
`App. 11
`
`ing exit interview. Another (third) coworker over-
`heard that discussion. Thereafter, although Plain-
`tiff does not allege that the third coworker re-
`ported the overheard discussion to anyone at
`Platts management, Plaintiff alleges that Defend-
`ants created a hostile work environment and re-
`taliated' against her by, among other things, os-
`tracizing her, building an anger management case
`against her, and discrediting her amongst her
`peers. Defendants' hostile actions allegedly in-
`cluded speculation (primarily by Defendant King-
`ston) that Plaintiff had connections with Mexican
`drug dealers (predicated solely on her Mexican
`heritage and previous residency in Mexico). Plain-
`tiff felt particularly threatened by this false per-
`ception that she was associated with Mexican drug
`lords on the day that Defendant Rubin brought a
`knife to work and showed it to colleagues, saying
`that he would use it if someone "messe[d] with
`him." ¶15, 7.
`Because Plaintiff believed her negative
`treatment at work was premised on her conversa-
`tions about sexual harassment in the workplace,
`she emailed her superiors, directly referencing her
`sexual harassment concerns, and saying that "the
`matter was closed," in an attempt to quell her su-
`pervisors' concerns about her. ¶ 7, 6. This email led
`
`
`
`App. 12
`
`to a meeting with Plaintiffs supervisors. Defend-
`ant Kingston and one Mr. Zipf, during which King-
`ston allegedly told plaintiff that, "We wouldn't
`want to go to HRwith any complaints." 'j 8, 6.
`Plaintiff gives no date for this meeting.
`Starting in 2011, Defendants allegedly
`stepped up their harassment campaign against
`her. Plaintiff believes that Defendants began using
`their industry contacts to plant negative stories
`about Plaintiff in unspecified organs of the press,
`contested her naturalized United States citizen-
`ship in some unspecified venue and way, and "in-
`vestigated" her. The only cognizable connection
`made in the complaint is that, as mentioned above,
`one supervisor in particular (Kingston) tended to
`make remarks about Plaintiffs alleged connection
`to the illegal drug trade in Mexico.
`In 2012, Platts began to surveil Plaintiff,
`both in and outside the office. Plaintiff states that
`her personal home phone calls and email commu-
`nications were intercepted, and that her home was
`broken into on various occasions. These surveil-
`lance allegations are based on Defendants and
`coworkers having repeatedly "referred to plaintiffs
`personal, out-of-office conversations and activi:
`ties," to which they were not otherwise privy, and
`objects in her home having been moved or taken.
`
`
`
`App. 13
`
`¶ 13, 7. Plaintiff bought a home surveillance cam-
`era, and informed the police that she believed her
`home was being entered without her permission.
`The police took no action. Plaintiff also alleges that
`she was followed and filmed on a summer 2012 va-
`cation, and that she was photographed having in-
`timate relations in her home. Plaintiff alleges that
`these images have been distributed on the Inter-
`net, although Plaintiff concedes that she has never
`seen the images. Pl.'s Mem. In Opp'n to Mot. to
`Dismiss, 2, ECF No. 18 ("Pl.'s Opp'n").
`In the spring of 2012, Plaintiff took a three-
`week sick leave due to emotional and physical ex-
`haustion that resulted from her being followed.
`When she returned, Defendant Kingston wanted
`to contest Plaintiffs medical leave claim, but was
`prevented from doing so by HR manager, Chan,
`who stated that contesting the claim would be dif-
`ficult because Plaintiff" was being followed." ¶ 20,
`8 (emphasis in original).
`On or about January 3, 2013, Plaintiff re-
`signed from her position at Platts. Del's Mem. Mot.
`to Dismiss, 6, ECF No. 10 ("Def.'s Mot. To Dis-
`miss"). Plaintiff alleges that her resignation was
`"in fact one of constructive discharge due to a
`workplace permeated with discriminatory action,
`ridicule, and insult sufficiently severe to have be-
`come abusive." Pl.'s Opp'n, 2.
`
`
`
`App. 14
`
`Post-Employment Allegations of Harassment
`Since her departure from Platts in January
`2013, Defendants have allegedly continued to ac-
`cess her personal emails and other communica-
`tions, to plant negative news stories about her, and
`to "sabotage her successive worklife." Compl., 8.
`In her complaint, Plaintiff alleges four spe-
`cific incidents of post-harassment that she attrib-
`utes to Platts and its employees: (i) in the spring
`of 2014, an unknown man harassed Plaintiff on the
`subway with a Coca-Cola can by shaking it in her
`face and miming the act of pouring the soda onto
`her—an event she interpreted to be a reference to
`the Anita Hill documentary that she had just
`seen2, Pl.'s Opp'n, 4-5; (2) on January 13, 2015,
`
`2 Plaintiff cites a Wikipedia entry to provide context for this
`allegation. The Court notes that Plaintiff refers to the Octo-
`ber 11, 1991 testimony of Anita Hill during the Senate Ju-
`diciary Committee's Supreme Court Nomination Hearings
`for the now Justice Clarence Thomas. In her testimony Hill
`alleged she was sexual harassed by Justice Thomas when
`Hill worked for him at the EEOC. Her testimony included
`the following quote:
`"One of the oddest episodes I remember was an occasion in
`which Thomas was drinking a Coke in his office. He got up
`from the table at which we were working, went over to his
`desk to get the Coke, looked at the can, and said, 'Who has
`put pubic hair on my Coke?
`Nomination of Judge Clarence Thomas to be Associate Jus-
`tice of the Supreme Court of the United States, 102d Cong.
`38 (1991) (statement of Anita Hill, Professor of Law, Uni-
`versity Of Oklahoma, Norman, OK).
`
`
`
`App. 15
`
`Defendant Kingston wrote a "widely released
`email" that read, "Made so many friends, had doz-
`ens and dozens of great colleagues, had few co-
`workers who were, ahem 'interesting' and still pro-
`vide both alumni and newcomers with hilarious
`stories that never get old," Id. at 6 (3) in March of
`2015, an unknown man who was selling candy on
`the subway made comments "of particular mean-
`ing to her," followed her off the train, and indicated
`that he was compensated (by parties unknown) for
`making the comments to her, before scratching her
`and grabbing her camera, Id. at 4; and (4) some-
`time during the first quarter of 2016, Plaintiff had
`a physical altercation with an unknown person
`outside the Platts office building, where she had
`gone together with the person who intended to
`serve a summons and complaint on Defendant Ru-
`bin. Id at 4. The altercation occurred when Plain-
`tiff, believing the stranger to be eavesdropping on
`her conversation, pulled out her cell phone and
`took an unsolicited photo of the stranger, who re-
`sponded by pushing and scratching Plaintiff. Id
`Plaintiff does not allege that the individual who ac-
`costed her was Defendant Rubin, or any other de-
`fendant—or for that matter anyone associated
`with Platts.
`There is no allegation in the prolix pleading
`before this Court that anyone associated with
`
`
`
`App. 16
`
`Platts took any action vis-a-vis Plaintiff with re-
`spect to her obtaining her next, or any subsequent,
`job- Indeed, admissions made in papers filed with
`in this action and in another action pending in this
`court reveal that Plaintiff started a new job, the
`same month that she left her job at Platts, and that
`she held the job with her new employer, Argus Me-
`dia, for well over a year. See P1's Opp'n, 6, and ECF
`No. 2 (Complaint) in Mira v. Argus Media, No. 15-
`CV-9990. Plaintiff has filed a suit similar to this
`one against Argus Media, alleging that Argus "dis-
`criminated against her throughout her employ-
`ment," and "subjected her to a hostile work envi-
`ronment and surveillance in her personal, non-
`work life" as well.3 Id. In her papers in opposition
`to the instant motion, Plaintiff alleges that there
`was a meeting among top officers of Platts and Ar-
`gus in May 2013—four months after she left her
`employ at Platts and was hired by Argus—after
`which her Argus co-workers "became remote or
`distant" from her. Pl.'s Opp'n, 5.
`Plaintiffs Administrative Complaint
`Qn February 3, 2015-761 days after she
`left her employment at Platts and 612 days after
`the alleged meeting of May 2013 (provided the
`
`This Court previously declined to construe as related the
`case against Argus Media because it was not related. ECF
`No. 43.
`
`
`
`App. 17
`
`meeting occurred on May 31, 2013, a date that re-
`flects the most favorable construction of Plaintiffs
`undated allegation)—Plaintiff filed an administra-
`tive complaint with the New York State Division
`of Human Rights ("NYSDHR") Office of Sexual
`Harassment Issues, against Platts, John Kingston,
`Beth Evans, Kevin Saville, and Richard Rubin, al-
`leging violations of New York State Human Rights
`Law, Article 15. Rasin Deel., Ex. B, at 2, ECF No.
`11. The same complaint was sent to the Equal Em-
`ployment Opportunity Commission ("EEOC"), pur-
`suant to its work sharing agreement with the
`NYSDHR.
`On August 4, 2015, the NYSDHR dismissed
`the complaint for "administrative convenience." Id.
`Ex. B, 2. Plaintiff took an appeal from this closure
`to the Supreme Court of the State of New York,
`which affirmed NYSDHR's dismissal of the case.
`See Mira v. NY State Div. of Human Rights, No.
`101810/2015 (Aug. 24, 2016) (WebCivil Supreme).
`On September 22, 2015, the EEOC dis-
`missed Plaintiffs charge as untimely, and advised
`Plaintiff of her right to sue in federal court within
`90 days of receipt of the notice. See Compi., 10.
`Plaintiff commenced the instant action on Decem-
`ber 22, 2015—within 90 days of Plaintiffs receipt
`of the EEOC's notice of dismissal (just barely)—
`
`
`
`against her former employer, Platts, and the fol-
`lowing supervisors: John Kingston, Beth Evans,
`Richard Rubin, and Kevin Saville. The Court con-
`strues the complaint to allege claims of retaliation
`based on Plaintiffs open discussion of sexual har-
`assment in the workplace and creating a hostile
`work environment based on race and/or national
`origin, which ultimately forced plaintiff to leave
`her job (constructive discharge)—all in violation of
`Title VII and the various corresponding state and
`local statutes. Pl.'s Opp'n, 1. She also appears to
`allege that Defendants continued their harass-
`ment after she left Platts.
`
`The Instant Motion
`On April 27, 2016, all Defendants filed this
`motion to dismiss the complaint as time-barred
`pursuant to Rule 12(b)(6), and Beth Evans moved
`to dismiss for failure to serve her with process in
`accordance with Federal Rule of Civil Procedure
`4(ñ).
`
`DISCUSSION
`
`I.
`
`Legal Standard for Rule 12(b)(6) Motion to
`Dismiss Pro Se Litigant's Complaint
`
`When ruling on a motion to dismiss pursuant to
`Rule 12(b)(6) of the Federal Rules of Civil Proce-
`
`
`
`App. 19
`
`dure, the Court must construe all factual allega-
`tions in the complaint in favor of the non-moving
`party. See Krimstock v. Kelly, 306 F.3d 40, 47-48
`(2d Cir. 2002). The Court's consideration is nor-
`mally limited to facts alleged in the complaint, doc-
`uments appended to the complaint or incorporated
`in the complaint by reference, and to matters of
`which judicial notice may be taken. See Allen v.
`WestPointPepperell, Inc., 945 F.2d 40, 44 (2d Cir.
`1991). The Court may take judicial notice of any
`publicly available documents. See Kramer v. Time
`Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991).
`When the plaintiff is proceeding prose, however,
`courts have on occasion considered additional ma-
`terials submitted by the litigant in opposition to a
`motion to dismiss. See, e.g., Gil v. Mooney, 824
`F.2d 192, 195 (2d Cir. 1987); Fox v. City of New
`York, No. 03-CV-2268, 2004 WL 856299, at* 1
`(SD.N.Y. Apr. 20, 2004).
`Plaintiff Did Not File Her Charge Within
`II.
`the Requisite 300 Days After the Last Act
`of Discrimination
`Plaintiff has come to federal court. She as-
`serts claims under federal law, and pendent claims
`
`
`
`App. 20
`
`under state and local law. Because there is no di-
`versity of citizenship,4 her fate in this Court rests
`on the viability of her federal claims, which are
`brought pursuant to Title VII of the Civil Rights
`Act of 1964, as amended.
`Under federal law the only proper defend-
`ant in a Title VII claim is the plaintiffs employer—
`no Title VII claim lies against the executives or
`other employees of the employer. See Lore v. City
`of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012).
`Therefore, to the extent Plaintiff has tried assert a
`Title VII claim against any of the individual de-
`fendants (John Kingston; Beth Evans, Kevin
`Saville, and Richard Rubin), she fails to state a
`claim under federal law, and those claims are dis-
`missed with prejudice.
`This leaves Plaintiffs Title VII claim against
`Platts. If that claim does not survive this motion to
`dismiss, then Plaintiff is out of court—out of this
`Court, in any event, because this Court will not ex-
`
`4 Plaintiff is a resident of Manhattan, New York. Compl. at
`2, Docket No. 2. Although nothing in the record discloses
`Defendant Platts's domicile, the Court takes judicial notice
`that, at the time Plaintiff filed her complaint with the
`Court, Defendant's most recent Form 8-K filed with the Se-
`curities Exchange Commission identified it as a New York
`corporation with its principal place of business in New
`York. See McGraw-Hill Fin., Inc., Current Report (Form 8-
`K) (Nov. 3, 2015).
`
`
`
`App. 21
`
`ercise supplemental jurisdiction over discrimina-
`tion claims brought solely under state or especially
`local law.
`Title • Vii's statute of limitations provision
`bars employment discrimination claims based on
`events that occurred more than 300 days prior to
`filing a charge of discrimination with a state or lo-
`cal employment agency. 42 U.S.C. § 2000e-5(e)W;
`Butts v. City of New York Dep 't of Hous., Pres. &
`Devt, 990 F.2d 1397, 1401 (2d Cir. 1993). Plaintiffs
`employment ended on or about January 3, 2013.
`Def.'s Mot. to Dismiss, 6. Since any and every ac-
`tion of employment discrimination that plaintiff
`could allege—including a hostile work environ-
`ment—had to have been committed prior to that
`day, Plaintiff had until October 30, 2013, at the lat-
`est, to file a charge with the NYSDHR and/or the
`EEOC Plaintiff did not do so. She finally filed her
`administrative complaint on February 3, 2015-
`761 days after her last day of work on January 3,
`2013.
`
`Plaintiff also alleges that events occurred
`after she was constructively discharged that con-
`tinued to make her life difficult—she was harassed
`
`At that, it is highly likely that some of what she charges
`would have been time-barred, although the so-called "con-
`tinuing violation" doctrine might have made some of her
`charges timely.
`
`
`
`App. 22
`
`by strangers on the subway; her former supervisor
`obliquely referred to her in a post-employment
`email; and she even had a physical altercation
`with someone not alleged to have worked for Platts
`when she went to the company's office to serve pro-
`cess. See supra, at 5-6. Plaintiff seems to think
`that these things (i) are connected to her employ-
`ment at Platts; (2) constituted further harass-
`ment/hostile work environment; and (3) somehow
`(under a tontinuing violation theory) extended
`the statute of limitations of her Title VII claim.
`Plaintiff correctly points out that Title VII
`does—in certain instances—protect against post-
`employment retaliation. In Robinson v. Shell Oil
`Co., 519 U.S. 337, 346 (1997), for example, the de-
`fendant company "blacklisted" the former em-
`ployee and wrongfully refused to write a recom-
`mendation letter; in Wanamaker v. Columbian
`Rope Co., 108 F.3d 462, 466 (2d Cir. 1997), a for-
`mer employer sullied its former employee's repu-
`tation in retaliation for protected activity relating
`to the prior employment.
`
`But the kinds of circumstances that give
`rise to such claims are not alleged in Plaintiffs
`pleading (which border on the bizarre). As noted
`above, Plaintiff immediately secured employment
`with Argus Media after she resigned from Platts
`in fact, she began working there the same month.
`
`
`
`App. 23
`
`The acts of harassment of which she complains (as-
`suming them to be allegations of harassment) do
`not relate to her new job or to any inability to pro-
`cure employment; they are simply unpleasant
`things that happened to Plaintiff (not at her new
`place of employment) that she attributes Platts.
`That is not the sort of limited post-employment
`"retaliation" that is protected by Title VII.
`
`Furthermore, she alleges not a single plau-
`sible fact to suggest that anyone at Platts either
`perpetrated the things she describes in her com-
`plaint or caused them to happen to her. Indeed, her
`prolix complaint is devoid of any allegation that
`anyone associated with Defendant Platt ever had
`contact with anyone at Argus Media regarding
`Plaintiff. However, in her papers responding to the
`instant motion, Plaintiff reveals her belief that
`there was a meeting in May 2013 among the prin-
`cipals at the two companies, after which conditions
`began to be difficult for her at Argus. This, I
`gather, is the basis for her assertion that Platts'
`retaliatory conduct "spilled over into her succes-
`sive job," Pl.'s Opp'n, 2, and "sabotaged her succes-
`sive worklife." Compl., 8.
`So let us assume that such a meeting took
`place; and since Plaintiff does not date it, other
`than to say it occurred in May 2013 let us say it
`
`
`
`App. 24
`
`happened on May 31, the last day of the month.6 If
`the meeting that Plaintiff imagines actually oc-
`curred, then that was the day that her 300-day pe-
`riod for filing a charge against Platts began to run,
`because that was the last employment-related act
`that Platts allegedly took against Plaintiff. Three
`hundred days from May 31, 2013 is March 27,
`2014. That still makes Plaintiffs administrative
`filing late by 313 days.
`In short, even deeming Plaintiff's complaint
`amended to assert the existence of this allegedly
`nefarious May 2013 meeting between unnamed
`representatives of her current and former employ-
`ers, Plaintiff filed her charge on a date well beyond
`the 300-day limitations period for such submis-
`sions.
`Equitable Tolling Is Not Available to Plaintiff
`The only question that remains is whether
`the 300-day period for filing a charge with the
`EEOC/NYSDHR was somehow tolled for 461 days
`(or 313 days)—which would make her extremely
`belated filing of an administrative charge timely.
`
`6 All of the individual defendants have submitted sworn
`statements to the Court denying that they ever spoke to an-
`yone at Argus about plaintiff (Docket Nos. 37-40.0), but on
`this motion to dismiss (not for summary judgment), the
`Court has no business considering those sworn statements,
`and I expressly declines to do so.
`
`
`
`App. 25
`
`The answer is no, it was not.
`The doctrine of equitable tolling permits a
`court, "under compelling circumstances, [to] make
`narrow exceptions to the statute of limitations in
`order 'to prevent inequity." In re US. Lines, Inc.,
`318 F.3d 432,436 (2d Cir. 2003) (citation omitted).
`The statute of limitations may be equitably tolled,
`for example, when a defendant fraudulently con-
`ceals from a plaintiff the fact that the plaintiff has
`a cause of action, or when the plaintiff is induced
`by the defendant to forego a lawsuit until the stat-
`ute of limitations has expired. See Pearl v. City of
`Long Beach, 296 F.3d 75, 82-83 (2002). In addi-
`tion, New York law provides that where a person
`"is under a disability.., at the time the cause of ac-
`tion accrues," the applicable statute of limitations
`will be tolled. N.Y. C.P.L.R. § 208 (McKinney
`2016). Although illness is, on its own, insufficient
`for equitable tolling purposes, tolling is appropri-
`ate if a plaintiff is "unable to protect [his] legal
`rights because of an overall inability to function in
`society" at the time an action accrues. Gardner v.
`Wansart, No. 05CV3351, 2006 WL 2742043, at *5
`n.4 (S.D.N.Y. Sept. 25, 2006).
`Equitable tolling is an affirmative defense,
`Nat? R.R. Passenger Corp. v. Morgan, 536 U.S.
`101, 113 (2002), which means that Plaintiff did not
`need to affirmatively plead it in her complaint.
`
`
`
`App. 26
`
`However, Plaintiff herself raised the possibility of
`an equitable tolling argument in her response to
`the motion to dismiss. Pl.'s Opp'n, 9. As she has
`indicated an intent to avail herself of this defense,
`Plaintiff, facing a motion to dismiss on statute of
`limitations grounds, has to provide the Court with
`some reason to believe that she might have been
`incapable of filing a charge with the EEOC until
`she finally did so. Plaintiffs bare acknowledgment
`that that the Court has the power to equitably toll
`the statute of limitations does not suffice.
`Plaintiff has provided no reason why she
`could not have filed her charge soone
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