RULING RE: MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT (DOC. NO. 78)

JANET C. HALL, District Judge.

I. INTRODUCTION

Plaintiff Lois Craig ("Craig") brings this action against Debby Baker in her individual capacity under section 1983 of the United States Code for allegedly discriminating against her in violation of the Equal Protection Clause of the Fourteenth Amendment. Craig's Third Amended Complaint includes a single count against the "defendants"1 under both section 1981 and 1983 of the United States Code. See 3d Am. Compl.2 Baker moves to dismiss the Third Amended Complaint. Mot. to Dismiss (Doc. No. 78). For the reasons that follow, Baker's Motion to Dismiss is granted.

II. FACTUAL BACKGROUND

Craig is an African-American female who has been employed by DMHAS as a Mental Health Assistant II ("MHA II") for over sixteen years. See 3d Am. Compl. at ¶ 3.3 As a union delegate, Craig frequently represents her coworkers and herself in disputes between the union and management. See id. at ¶ 5. In 2012, the defendants4 hired Melanie Lagana as an MHA I and promoted her after a year. See id. at ¶ 11. The defendants promoted Lagana even though the MHA union contract requires an employee to be in the MHA I position for three years before he or she is eligible for promotion to the MHA II position. See id. at ¶ 12. In November 2013, the defendants hired Heidi Bishop, a white female, to the position of Recovery Support Specialist. See id. at ¶ 13. The Recover Support Specialist position was changed to MHA II in 2014. See id. at ¶ 14.

In August 2015, Craig applied for a vacant, full-time MHA II position, but she was not granted an interview, while "non-basis"5 persons with less work experience and less seniority were interviewed. See id. at ¶ 15. In October 2015, defendants hired someone who was less qualified and younger than Craig for the MHA II position. See id. at ¶ 16. Craig was placed on a Performance Improvement Plan ("PIP") in October 2015, which prevented her from applying for other MHA II positions. See id. at ¶ 16. In February 2016, Craig applied for a third shift position, which the defendants gave to a less qualified, more junior, "non basis" person. See id. at ¶ 9.

In 2014, the defendants said that Craig's hair style "harbored head lice," but neither one was disciplined by DMHAS. See id. at ¶¶ 45, 52.6 In 2015, Craig was cited repeatedly for "neglect/refusal to perform her delegated duties, that she has been threatening, as disruptive to the work environment." See id. at ¶ 49. In 2016, defendants referred to Craig as "an angry black woman, who often wore dread locks." Id. at ¶¶ 44, 50. In August 2016, the defendants described Craig as "cocky, lacking respect, intimidating, exhibiting poor communication skills, being illogical, and rude. See id. at ¶ 51. At unspecified times, defendants said that Craig was "too cocky and needed to be cut down to size" and that she was "working too slowly on the job." See id. at ¶¶ 56, 59.

Following defendants' conduct described above, Craig developed serious mental and emotional conditions, including anxiety, depression, post-traumatic stress disorder, high blood pressure, and insomnia. Id. at ¶ 60.

III. PROCEDURAL BACKGROUND

Craig filed her original Complaint on December 21, 2016. (Doc. No. 1). On January 27, 2017, Craig filed her First Amended Complaint, which included 272 pages of exhibits. (Doc. No. 16). On February 23, 2017, the defendants filed a Motion for More Definite Statement. (Doc. No. 23). Craig objected to defendants' Motion on March 17, 2013, and represented that she would withdraw Count Two (Intentional Infliction of Emotional Distress) and Count Five (Monell) as to all defendants. (Doc. No. 26). On April 27, 2017, the court denied the defendants' Motion, but ordered Craig to file a second amended complaint that removed Counts Two and Five and supplied additional information about Baker. (Doc. No. 36).

Craig's Second Amended Complaint, which she filed on July 10, 2017, included five counts against DMHAS and seven DMHAS employees in their individual and official capacities. (Doc. No. 45). On November 28, 2017, the court granted the defendants' Motion to Dismiss Plaintiff's Second Amended Complaint in its entirety. (Doc. No. 72). The court dismissed the Second Amended Complaint with prejudice with the limited exception that Craig was permitted to file an amended complaint against Baker or any individual defendant who allegedly discriminated against her. See id. at 25.7

IV. LEGAL STANDARD

When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must determine whether a plaintiff has stated a legally cognizable claim by making allegations that, if true, would show that the plaintiff is entitled to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (interpreting Rule 12(b)(6), in accordance with Rule 8(a)(2), to require allegations with "enough heft to `sho[w] that the pleader is entitled to relief" (alteration in original)). The court takes all factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015). However, the principle that a court must accept a complaint's allegations as true is inapplicable to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

To survive a motion pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). "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. The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556).

V. DISCUSSION

A. Discrimination

Baker argues that Craig fails to state a claim for relief for discrimination on the basis of race because she has not plausibly alleged that an adverse employment action was taken against her, see Def.'s Mem. at 15-17, that her race was a motiving factor in the employment decision, see id. at 17-19, or that Baker was personally involved in the alleged constitutional violation, see id. at 19-20. Craig does not respond to Baker's argument that she has failed to state a claim of racial discrimination. See Pl.'s Opp'n.8

"The Fourteenth Amendment provides public employees with the right to be `free from discrimination.'" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)). With the addition of the requirement that the person who allegedly violated plaintiff's rights have acted under color of state law, a section 1983 discrimination claim is analyzed under the same framework as a Title VII discrimination claim. See id. at 88. "[T]o defeat a motion to dismiss in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." Id. at 87. A plaintiff can allege that her employer took adverse action against her at least in part for a discriminatory reason "by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination." Id.

"A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Galabaya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks omitted). "An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotation marks omitted). "Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Id. (alteration omitted) (internal quotation marks omitted).

Craig appears to allege that her placement on a Performance Improvement Plan ("PIP"), which allegedly limited her promotional opportunities, and the denial of her applications for other positions, constitute adverse employment actions. See Pl.'s Opp'n at 3; 3d Am. Compl. at ¶¶ 7-17.9 First, Craig alleges that she applied for MHA II positions in August and September of 2015, but that the "defendants" gave the positions to other applicants.10 See 3d Am. Compl. at ¶¶ 8, 15. Second, Craig alleges that the "defendants" subsequently placed Craig on a PIP, which has prevented Craig from applying for MHA II positions. See id. at ¶ 16.11 Third, Craig alleges that she applied for a third shift position in February 2016. See id. at ¶ 9. Craig does not assert any allegations as to what a third shift position is or how it differs from the position she occupied at the time she applied. However, elsewhere in the Third Amended Complaint, Craig alleges that her placement on the PIP has prevented her from applying for other MHA II positions or promotions. See id. at ¶¶ 7, 16. Thus, a third shift position must not be an MHA II position or an advancement from an MHA II position.

Because Craig was already an MHA II at the time she allegedly applied for other MHA II positions, and she does not allege that a third shift position is an advancement above an MHA II, Craig has not stated a claim for discrimination on a failure to promote theory. See Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). However, the denial of a request for lateral transfer is an adverse employment action if "the sought for position is materially more advantageous than the employee's current position, whether because of prestige, modernity, training opportunity, job security, or some other objective indicator of desirability." Beyer v. Cty. of Nassau, 524 F.3d 160, 165 (2d Cir. 2008). Thus, the denial must have "created a materially significant disadvantage in [the plaintiff's] working conditions." Williams v. R.H. Donnelley Corp., 368 F.3d 123, 128 (2d Cir. 2004).

Craig does not allege any facts regarding the other MHA II or the third shift positions to which she applied. See 3d Am. Compl. at ¶¶ 8, 9, 15, 16. Craig therefore has not plausibly alleged that the denial of her request for a lateral transfer was an adverse employment action.

Craig also alleges that the PIP prevented her from applying to other positions. See id. at ¶ 7. The Second Circuit has held that a performance improvement plan is not an adverse employment action insofar as it requires an employee to follow certain requirements. See Brown v. Am. Golf Corp., 99 F. App'x 341, 343 (2d Cir. 2004). However, when a performance improvement plan affects an employee's possibility for advancement or compensation, it may constitute an adverse employment action. See E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d 816, 893 (S.D.N.Y. 2013) (finding that plaintiff's placement on a performance plan could constitute an adverse employment action when it impacted her eligibility to receive additional compensation).

Craig has not alleged any facts about how her placement on the PIP affected her possibility for advancement or compensation. Craig alleged only that her placement on the PIP prevented her from applying "for any subsequent vacant MHA II positions that became available." 3d Am. Compl. at ¶ 16. However, as discussed above with relation to the denial of a lateral transfer, Craig has not plausibly alleged that her inability to apply for other MHA II positions was an adverse employment action. Although Craig asserts that the PIP denied her "possibilities for advancement, and increased compensation," 3d Am. Compl. at ¶ 7, she does not allege a single fact about how the other positions may have advanced her career or provided additional compensation. While a court must accept a complaint's factual allegations as true, that principle is inapplicable to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Because Craig has not plausibly alleged that she experienced any adverse employment action, she has failed to state a claim of discrimination under section 1983.

Even assuming that Craig had identified an adverse employment action, she has not plausibly alleged that her race was a motivating factor in such an action. Craig makes two allegations related to race, but neither is tied to any conceivable adverse employment action. First, Craig alleges that Baker made derogatory remarks toward her. See 3d Am. Compl. at ¶¶ 44-45. However, Craig does not allege facts that, taken as true, would connect Baker and any racial animus she harbored to an employment decision. See Vega, 801 F.3d at 87. Craig asserts throughout her Third Amended Complaint that "the defendants" made discriminatory hiring decisions, but, as discussed above, it is not clear whether "defendants" refers to DMHAS generally, Baker, Perisco, or any of the five other individuals who Craig refers to as defendants but are no longer part of this case. Craig alleges that Baker "is the immediate supervisor to the Plaintiff and she is chiefly responsible for the unlawful conduct complained of by the Plaintiff" and that Baker "had the authority to hire, and fire," see id. at ¶¶ 33-34, but the court cannot impute any given hiring decision at DMHAS to Baker merely because she "has the authority to hire and fire" Craig for her current position.

Second, Craig alleges that in November 2013 the defendants hired Heidi Bishop, "a white female," to the position of Recovery Support Specialist, which was then changed to MHA II. See 3d Am. Compl. at ¶¶ 13-14. However, Craig does not allege that she applied to the MHA II position for which Bishop was hired. It is not clear what relevance Bishop has to Craig's case. As for the positions to which Craig did apply, Craig alleges that "non-basis" individuals were hired instead of her. See id. at ¶¶ 8, 9, 15. Craig does not explain what "non-basis" means even after the defendant puzzled over the meaning of the term in her Memorandum in Support of her Motion to Dismiss. See Def.'s Mem. at 16. The contrast between Craig's description of Bishop as white and the applicants chosen for the MHA II and third shift positions instead of Craig as "non-basis" indicates that the term "non-basis" is unrelated to race. Thus, Craig has not alleged facts regarding the race of the individuals selected for the positions to which she applied in support of her claim of racial discrimination.

Ultimately, the only mention of a candidate of a different race is for a position to which Craig did not apply. Even if there had been an adverse employment action taken against Craig, the court concludes that Craig has not plausibly alleged that race was a motivating factor in any such decision.

Finally, even had Craig stated a claim for employment discrimination under the framework used in Title VII cases, she has not plausibly alleged that Baker was personally involved in any action taken against her. See Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) ("A finding of `personal involvement of [the individual] defendants' in an alleged constitutional deprivation is a prerequisite to an award of damages under Section 1983.") (quoting Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001)). The only actions that Craig plausibly alleges Baker was involved in were the derogatory remarks to Craig, which, standing alone, do not rise to the level of a constitutional violation. See Ruling at 21-22.

The court concludes that Craig has failed to state a claim for discrimination under section 1983. Her Third Amended Complaint is therefore dismissed.

VI. CONCLUSION

For the foregoing reasons, Baker's Motion to Dismiss (Doc. No. 78) is granted.12

SO ORDERED.