REPORT AND RECOMMENDATION

SARAH NETBURN, Magistrate Judge.

TO THE HONORABLE VALERIE E. CAPRONI:

Plaintiff Evita Jules, proceeding pro se, brought this action against her former employers Chesner & Vogel, D.D.S., PLLC, Dr. Michael Chesner, and Dr. Robert Vogel (together, "Defendants"), alleging employment discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e to 2000e-17; 42 U.S.C. § 1981; the New York State Human Rights Law (the "State Human Rights Law"), N.Y. Exec. Law §§ 290 to 297; and the New York City Human Rights Law (the "City Human Rights Law"), N.Y.C. Admin. Code §§ 8-101 to 8-131. Plaintiff also alleges that Defendants and their attorney engaged in fraud and conspiracy to cause the New York State Division of Human Rights (the "Division") to dismiss her complaint. Defendants move to dismiss Jules's complaint for lack of subject matter jurisdiction and for failure to state a claim. Accepting all well-pleaded allegations as true, the Court finds that Plaintiff has failed to state a claim for a violations of Title VII and 42 U.S.C. § 1981, and that Plaintiff's State and City Human Rights Laws claims are barred by the election of remedies doctrine. For these reasons, I recommend that the motion to dismiss be granted. I further recommend that the Court decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claim.

BACKGROUND

Plaintiff, who is Black and of Haitian descent, was employed by Defendants for 31 years, from 1986 until January 2018, when she resigned. Compl., Ex. A, ECF No. 1, at 12. On September 14, 2018, Plaintiff filed a complaint with the Division alleging that Defendants had discriminated against her on the basis of her race, color, and national origin in violation of the State Human Rights Law by, among other things, reducing her salary, failing to give her a raise, and refusing to pay her money "off the books." Id., Ex. C, ECF No. 1, at 48. She filed a parallel complaint before the Equal Employment Opportunity Commission ("EEOC"). Id., Ex. A, ECF No. 1, at 12. The Division completed an investigation, including a written interview of Plaintiff, and determined on February 22, 2019, that there was no probable cause to believe that Defendants had engaged in unlawful discrimination against her. Id., Ex. C, ECF No. 1, at 48. The Division's determination also informed Plaintiff of her right to appeal to the New York State Supreme Court within sixty days. Id. Plaintiff did not appeal the Division's determination. Instead, Plaintiff wrote to the EEOC on February 22, 2019, disputing the Division's findings and alleging that Defendants had colluded with their attorney to have her claim dismissed by the Division. Id., ECF No. 1, at 44-46. On May 2, 2019, the EEOC adopted the Division's investigative findings, closed Plaintiff's case, and issued her a right to sue under federal law. Id., Ex. A, ECF No. 1, at 11.

On May 30, 2019, Plaintiff filed the complaint in this action. The complaint contains four claims: (1) that Defendants discriminated and retaliated against her for filing a claim with the Division; (2) that Defendants and their attorney committed fraud by colluding with the Division to deny Plaintiff relief; (3) that Defendants violated 42 U.S.C. § 1983 by reducing Plaintiff's hours and salary and denying her sick and vacation days and (4) that Defendants and their attorney violated 42 U.S.C. § 1985 by conspiring with the Division. Compl. 4-5.

First, plaintiff alleges Defendants discriminated against Plaintiff "because of [her] race, color, and national origin," in violation of State and City Human Rights Laws and Tittle VII. Compl. 3. Specifically, Plaintiff claims that Defendants denied her equal terms and conditions of employment and forced her to resign. Id. 4. Plaintiff also alleges that she was the only employee whose salary and working hours were reduced, causing her to do extra, unpaid work. Id. 5. Plaintiff also alleges that, after she filed a complaint with the Division, Defendants retaliated against her. The complaint alleges that Defendants also violated 42 U.S.C. § 1983 through this alleged discrimination. Id. 5.

Next, Plaintiff claims that Defendants and their attorney conspired with the Division to have Plaintiff's state complaint dismissed. Id. 4-5. Plaintiff alleges that Defendant's attorney is "obviously well connected with certain dishonest employees of the State Commission on Human Rights" and that Defendants lied in their answer to the complaint before the Division. Plaintiff further names certain Division investigators and argues that Defendant "conspire[d] and collud[ed]" with the investigators, in violation of § 1985, to cause her complaint to be dismissed. Id. 5. Plaintiff also argues that Defendants retaliated against her when she filed a claim with the Division. Id.

DISCUSSION

I. Plaintiff's Federal Claims Should be Dismissed for Failure to State a Claim

A. Legal Standard

When considering a motion to dismiss under Rule 12(b)(6), a court must "draw all reasonable inferences in [the plaintiff's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); Fed. R. Civ. P. 12(b)(6). "To survive a motion dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

Pro se pleadings are interpreted "broadly. . . to raise the strongest arguments that they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotation marks omitted) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Still, if "a petition fails even vaguely to suggest an essential element of a claim for relief, the district court is not required to overlook the deficiency." Diaz v. United States, 633 F. App'x 551, 555 (2d Cir. 2015) (citing Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998)).

B. Title VII

Title VII defines covered "employers" as those with at least fifteen employees. See 42 U.S.C. § 2000e(b) ("The term `employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year"). Defendants assert, in a supporting affidavit, that they have never employed more than eight employees. Vogel Aff., ¶¶ 7-8. ECF No. 12 ("Chesner & Vogel D.D.S., PLLC, has never employed more than 8 people for each working day in each of twenty or more calendar weeks in the current of proceeding calendar year, including myself and Dr. Michael Chesner."). Ordinarily, when a party presents material outside the pleadings on a motion to dismiss for failure to state a claim, the court "must either disregard such material or give the parties notice that the motion is being converted to one for summary judgment and permit the parties to submit evidence accordingly." Kopec v. Coughlin, 922 F.2d 152, 156 (2d Cir. 1991). Under this court's Local Civil Rules, a represented party who moves to dismiss against a party proceeding pro se, and refers to materials outside the pleadings, must serve this notice on the pro se party. See Local Civil Rule 12.1. Defendants in this case provided Plaintiff with the required notice that the Court may treat their Rule 12 motion to dismiss as a Rule 56 motion for summary judgment. See Def.'s Br., Notice to Pro Se Litigant. The notice states that failure to respond to Defendant's motion with affidavits and/or documents contradicting the facts asserted by Defendant could result in dismissal of the case. Accordingly, because Plaintiff was on notice, the Court recommends converting Defendants' motion to dismiss the Title VII claim to a motion for summary judgment under Rule 56. See Rovira v. New York Apparel Sales, No. 01-CV-2231 (ILG), 2002 WL 1471557, at *2 (E.D.N.Y. May 31, 2002) (converting Title VII motion to dismiss to summary judgment motion where Defendant claimed it employed fewer than fifteen people).

Though Plaintiff does not state the number of people employed by Defendants, these facts do not appear to be in dispute and Plaintiff has not alleged that Defendants employ fifteen or more employees. See Wall v. Chelsea Plastics, No. 07-CV-7549 (DAB), 2008 WL 2037049, at *4 (S.D.N.Y. May 9, 2008) (converting motion to dismiss and granting summary judgment where it was "uncontested" that Defendant did not have fifteen employees at any one time during the relevant period), Persaud v. Ash & Peterkin Cent. Lock, No. 04-CV-4555 (DAB)(AJP), 2005 WL 100711, at *1 (S.D.N.Y. Jan. 19, 2005) (converting motion to dismiss and granting summary judgment where plaintiff did not produce evidence contradicting Defendant affidavit). I find that Defendants employed fewer than fifteen people and that judgment should be entered in favor of Defendants on the Title VII claim.

Even if Defendant qualified as an "employer" for the purposes of Title VII, Plaintiff's allegations are too conclusory to warrant relief. See Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (courts are "not bound to accept conclusory allegation or legal conclusions masquerading as factual conclusions.") (internal quotation marks omitted). Though she alleges that her salary and working hours were reduced and that she was denied sick days and vacation time, Compl. 5, the complaint does not claim that Defendants had a racially discriminatory intent or set forth any evidence from which such intent could be inferred. See Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (affirming dismissal of Title VII claim). Plaintiff alleges that she was the only employee whose salary and working hours were reduced, but does not, for example, point to any conduct by Defendants that would suggest this action was racially discriminatory. See id.

Even accounting for documents Plaintiff submitted from the Division and EEOC investigations, Plaintiff has failed to allege a Title VII claim. See Aponte v. City of New York, No. 14-CV-3989 (KMK), 2016 WL 5394754, at *3 (S.D.N.Y. Sept. 26, 2016) (a court ruling on a 12(b)(6) motion may consider documents either in plaintiff's possession or of which plaintiff had knowledge and relied upon) (citing Kalyanaram v. Am. Ass'n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014)). In response to questioning from the Division investigator assigned to her case about negative remarks Defendants made about Plaintiff's race or national origin, Compl. Ex. G, ECF No. 1, at 76-86, Plaintiff responded that Defendants had never made any such remarks "overt or veiled." Id. While an employment discrimination claim "need not contain specific factors establishing a prima facie case of discrimination," Plaintiff here has failed to put forth facts that would "nudge [her] claim across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Even if Defendants were not immune because they do not employ the requisite number of employees, Plaintiff has failed to state a Title VII claim sufficient to survive a 12(b)(6) motion.

C. 42 U.S.C. § 1981

Plaintiff asserts a claim under 42 U.S.C. § 1981, alleging that she was intentionally discriminated against because she is Black and Haitian. Compl. 4. To state such a claim, a plaintiff must allege: (1) her membership in a protected class; (2) the defendant's intentional discrimination on the basis of race; and (3) that the discrimination concerned an activity enumerated in the statute. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Though Plaintiff has adequately plead the first element, the final two are not supported for the same reasons as her Title VII claim. There are insufficient facts in the complaint to suggest that Defendants intentionally discriminated against Plaintiff on the basis of race. Even when read under the liberal pleading standards accorded pro se litigants, Plaintiff has failed to state a claim for relief under 42 U.S.C. § 1981.

D. 42 U.S.C. § 1983

Plaintiff alleges that Defendants violated 42 U.S.C. § 1983 by discriminating against her to reduce her salary and hours and depriving her of sick and vacation days, causing her to resign. Compl. 5. A claim under Section 1983 "must be predicated on state action and state actors." Fisk v. Letterman, 401 F.Supp.2d 362, 367 (S.D.N.Y. 2005). To assert a Section 1983 claim against a private defendant, the defendant must have acted "under color of state law." See Chan v. City of New York, 1 F.3d 96, 106 (2d Cir. 1993). The under-color-of-state-law element "excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted). Defendants are purely private individuals and Plaintiff has not put forth evidence that their actions are "fairly attributable" to the government. See Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 839 (1982)). As such, Plaintiff has failed to state a Section 1983 claim.

E. 42 U.S.C. § 1985(3)

Plaintiff also contends that Defendants conspired with Division investigators Yonette Scott and Paola Toro, and Division Regional Director Linda Fenstermaker to have Plaintiff's state claim dismissed, in violation of 42 U.S.C. § 1985(3). Compl. 5. To state a claim under Section 1985(3), a plaintiff must establish (1) the existence of a conspiracy; (2) for the purpose of depriving a person or class of people of equal protection of the laws; (3) an act in furtherance of the conspiracy; (4) through which a person is deprived of any right of a citizen of the United States. Brown v. City of Oneonta, New York, 221 F.3d 329, 341 (2d Cir. 2000). "A section 1985(3) conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Singer v. City of New York, No. 18-CV-615 (PGG), 2019 WL 5540881, at *23 (S.D.N.Y. Sept. 30, 2019) (citing Britt v. Garcia, 457 F.3d 264, 270 n.4 (2d Cir. 2006)).

Though she asserts that Drs. Chesner and Vogel "conspire[d] and collud[ed] with" Division employees "in order to dismiss the Complaint," Plaintiff has not provided a factual basis to support that claim. See Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) ("In order to maintain an action under Section 1985, a plaintiff must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.") (internal citations and quotation marks omitted). The allegation that Defendants conspired and colluded with the Division "just to give an unfair advantage to [themselves]," without more, is too vague and conclusory to state a claim. Moreover, as described above, Plaintiff has not established that Defendants acted with "discriminatory racial animus," as required to support a Section 1981 claim. See Brown, 221 F.3d at 333.

II. The Court Lacks Jurisdiction to Consider Plaintiff's State and City Human Rights Law Claims

The "election of remedies" doctrine provides that a party who filed a complaint with either the Division or the New York City Commission on Human Rights cannot later sue in court on the same claims. Saudagar v. Walgreens Co., No. 18-CV-437 (KPF), 2019 WL 498349, at *7 (S.D.N.Y. Feb. 8, 2019). Section 297(9) of the New York Executive Law provides that a person claiming unlawful discrimination "shall have a cause of action in any court of appropriate jurisdiction. . . unless such person had filed a complaint hereunder or with any local commission on human rights." In other words, "[o]nce a complainant elects the administrative forum by filing a complaint with the Division of Human Rights, a subsequent judicial action on the same complaint is generally barred." Williams v. City of New York, 916 F.Supp.2d 517, 521 (S.D.N.Y. 2013) (citing Moodie v. Fed. Reserve Bank of New York, 58 F.3d 879, 882-83 (2d Cir. 1995)). The election of remedies bar is jurisdictional, meaning that claims dismissed pursuant to it must be dismissed under Rule 12(b)(1). Id., Fed. R. Civ. P. 12(b)(1).

It is undisputed that Plaintiff pursued State Human Rights Law claims before the Division. See Compl. 5-6; Def.'s Br. 4-6. As such, Plaintiff's State Human Rights Law claims must be dismissed. Because the election of remedies also imposes a derivative jurisdictional bar, the Court must also dismiss "claims arising out of the same incident on which the Division complaint was based." Smith v. Sch. of Visual Arts, No. 15-CV-8049 (RA), 2016 WL 3440553, at *2 (S.D.N.Y. June 9, 2016). As both Plaintiff's State and City Human Rights Law claims allege discrimination on the basis of race and national origin and arise from the same circumstances, the claims under N.Y.C. Admin. Code §§ 8-101 to 8-131 should also be dismissed for lack of subject matter jurisdiction.

III. The Court Recommends Declining to Exercise Supplemental Jurisdiction Over Plaintiff's Remaining Claim

Plaintiff has two remaining claims—that Defendants and their attorney engaged in fraud by lying in their verified answer to the Division and that they conspired with the Division to have Plaintiff's complaint dismissed. Compl. 5 (styling claims as one claim for "fraud"). These remaining claims sound in tort and are governed by state law. See Eaves v. Designs for Fin., Inc., 785 F.Supp.2d 229, 257 (S.D.N.Y. 2011) (applying New York law to fraud and civil conspiracy claims). Defendants do not discuss these allegations in their motion to dismiss. Nonetheless, because I find that Plaintiff's federal claims should be dismissed, the Court considers its jurisdiction over the remaining claims. See Rocky Aspen Mgmt. 204 LLC v. Hanford Holdings LLC, 358 F.Supp.3d 279, 282 (S.D.N.Y. 2019) (subject matter jurisdiction is a threshold issue).

Whether to exercise supplemental jurisdiction over these state law claims under 28 U.S.C. § 1367 is within the Court's discretion. See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (supplemental jurisdiction is permissive not mandatory). But where all federal claims have been dismissed, "the default rule is that federal courts should not decide related state-law claims unless there is good reason for doing so." Cohen v. Postal Holdings, LLC, 873 F.3d 394, 404 (2d Cir. 2017) ("good reason" includes judicial economy, fairness, and comity). This circuit "takes a very strong position that state issues should be decided by state courts." Id. Given the posture of this case and the fact that the parties have not yet engaged in discovery, I find no good reason to retain jurisdiction over the fraud and conspiracy claims. Accordingly, I recommend that these claims be dismissed without prejudice to pursue them in state court.

CONCLUSION

For the reasons discussed above, I recommend that Defendant's motion be GRANTED. I recommend that Claims 1, 3, and 4 be dismissed with prejudice and that judgment be entered in Defendants' favor with respect to Plaintiff's Title VII claim. I further recommend that the Court decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claims.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Caproni. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).