Rubert v. King

OPINION & ORDER   Pro se Plaintiff Jose Luis Rubert (“Plaintiff”) brings this Action, pursuant to 42 U.S.C. §1981, Title VII, and New York State Human Rights Law (“NYSHRL”), against Walmart, Inc. (“Walmart”), Walmart security guard Daniel King (“King”), Walmart store manager “Carry,” and Walmart assistant manager “Sam,” (collectively, “Defendants”), alleging that Defendants discriminated and retaliated against him because of his race and national origin. (See Amended Complaint (“Am. Compl.”) (Dkt. No. 6).) Before the Court is Walmart’s Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 27).) For the following reasons, the Motion is granted in part and denied in part. I. Background A. Factual Background The following facts, drawn from Plaintiff’s Amended Complaint, are taken as true for the purpose of resolving the instant Motion.¹ During the relevant period, Plaintiff, who is Puerto Rican and of Hispanic heritage, was an employee of Walmart at a store location in Monticello, NY. (Am. Compl. 3.)² King, who is white, worked at the same Walmart store as a “security guard supervisor.” (Id. at 8, 11.) From March 2016 through February 2017, King sent numerous text messages to Plaintiff’s wife, falsely claiming that Plaintiff was having an affair with two Walmart employees. (Id. at 5.) King’s conduct eventually “destroyed [Plaintiff's] marriage and forced [Plaintiff] to move out of [his] home.” (Id. at 8.) Plaintiff first discovered that King was sending these text messages in June 2017. (Id.) Plaintiff then “tried to have a discussion” with King about King’s conduct; but, in response, King “initiated a campaign against [Plaintiff] at work.” (Id.) In particular, King told Plaintiff’s coworkers that Plaintiff was a “drug addict,” and called him names, including, “junkie,” “spic,” “lowlife,” and “other expletives.” (Id.) King also used “his position as a security guard” to “harass[]” and “ stalk[]” Plaintiff, “ watching [Plaintiff] through the cameras, sending [him] text messages and basically tormenting [him].” (Id. at 9.) In July 2017, Plaintiff brought a copy of a text message exchange in which King called Plaintiff a “spic” to his store manager, Sam, and told Sam that he found King’s message racist and humiliating. (Id. at 10.) In reply, Sam “laughed and told [Plaintiff] not to take Daniel King seriously,” but said he would speak with King. (Id.) However, King’s behavior simply “intensified.” (Id.) Plaintiff therefore spoke to Carry, a Walmart assistant manager as well. (Id.) Carry responded that she “didn’t know that the word ‘spic’ was racist against Hispanics” (although she acknowledged knowing that the word “wetback” was a racial epithet). (Id.) Thereafter, King’s behavior “got worse” as was subsequently witnessed by several additional coworkers. (Id.) On August 2, 2017, Plaintiff engaged in a “confrontation [with King] in a Walmart parking lot after [] King made reference [to Plaintiff's] daughters, ages 7 and 11 at the time, going to [King's] house.” (Id. at 11; see also Decl. of Emily Haigh, Esq. in Supp. of Mot. (“Haigh Decl.”) Ex. B (“Arrest Report”) (Dkt. 29-2).) Police arrived at the scene, and arrested Plaintiff on several charges, including assault, and reported that Plaintiff had cut King’s arm. (See generally Arrest Report.) The altercation and arrest led to Plaintiff’s termination by Walmart and his conviction in Sullivan County Court. (See Am. Compl. 11; see also Haigh Decl. Ex. A (“Certificate of Conviction”) (Dkt. 29-1).) Plaintiff now seeks $7,000,000 in damages relating to the loss of his job, wages, and marriage, as well as violations of company policy, and the discrimination, retaliation, and harassment he alleges he endured. (Am. Compl. 6.) Plaintiff acknowledges that he did not file a discrimination charge with the EEOC or any other government agency, but explains that this was because he “did not know about such organization (EEOC),” and because he tried to resolve the issue with Walmart management. (Id.) B. Procedural Background On March 26, 2019, Plaintiff filed his initial Complaint and an Application to proceed in forma pauperis (“IFP”). (See Dkt. Nos. 1-2.) On April 9, 2019, IFP status was granted. (See Dkt. No. 4.) On April 30, 2019, Chief Judge McMahon ordered Plaintiff to amend his Complaint, noting that Plaintiff’s initial Complaint did not adequately allege that Walmart was aware of a racial dimension to Plaintiff’s dispute with King. (See Dkt. No. 5.) On June 19, 2019, Plaintiff filed his Amended Complaint. (See Am. Compl.) On July 25, 2019, the Court issued an Order of Service as to Walmart and King, and directed Walmart to ascertain the identities of “Sam, the Store Manager” and “Carry, the Assistant Manager” and provide the information to Plaintiff. (See Order of Service (Dkt. No. 9).) The Order of Service further specified that, within 30 days of receiving the information from Walmart, Plaintiff should amend his complaint to properly name Sam and Carry. (See id.) On September 30, 2019, the U.S. Marshals Service served copies of the Summons and Complaint on Walmart, and believing that they had thereby served King as well, reported that service was executed as to both. (See Dkt. Nos. 17-18.) On October 4, 2019, Counsel for Walmart entered an appearance on behalf of Walmart only. (See Dkt. Nos. 13-14.) On November 1, 2019, Walmart provided the requested information and filed a lettermotion requesting permission to file a motion to dismiss. (See Dkt. Nos. 19-20.) On November 18, 2019, Plaintiff filed a letter opposing Walmart’s request. (See Dkt. No. 23.) On November 20, 2019, the Court reminded Plaintiff that, pursuant to the Court’s Order of Service, he must file an amended complaint identifying “Sam” and “Carry” by December 1, 2019. (See Dkt. No. 24.) The Court also set a briefing schedule for Walmart’s proposed motion. (See id.) Plaintiff did not, however, file a second amended complaint. (See Dkt.) On January 17, 2020, Walmart filed the instant Motion and accompanying papers. (See Not. of Mot.; Mem. of Law in Supp. of Mot. (“Def.’s Mem.”) (Dkt. No. 28); Haigh Decl.) On February 26, 2020, Plaintiff filed his Opposition. (See Pl.’s Mem. of Law in Opp’n to Mot. (“Pl.’s Mem.”) (Dkt. No. 33); Pl.’s Decl. in Opp’n to Mot. (“Pl.’s Decl.”) (Dkt. No. 34).) On March 17, 2020, Walmart filed its Reply. (See Def.’s Reply Mem. of Law in Further Supp. of Mot. (“Def.’s Reply”) (Dkt. No. 37).) On May 29, 2020, Plaintiff filed a Sur-Reply. (See “Pl.’s Reply Mem.” (Dkt. No. 39).) On June 9, 2020, Walmart filed a letter noting that Plaintiff’s Sur-Reply was impermissible. (See Dkt. No. 40.)³ On July 14, 2020, at the request of the Court, Walmart filed a letter explaining why the purported service on King was insufficient, and clarifying that Counsel for Walmart represented only Walmart and not King. (See Dkt. No. 41.) II. Discussion A. Standard of Review The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will…be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]‘ — ‘that the pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). In considering Defendant’s Motion, the Court is required to “accept as true all of the factual allegations contained in the [Amended Complaint].” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must “construe[] [his complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.” (italics and quotation marks omitted)). Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation marks omitted). However, when the complaint is drafted by a pro se plaintiff, the Court may consider “materials outside the complaint to the extent that they are consistent with the allegations in the complaint,” Alsaifullah, 2013 WL 3972514, at *4 n.3 (quotation marks omitted), including “documents that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted), statements by the plaintiff “submitted in response to [a] defendant’s request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents either in [the] plaintiff[']s possession or of which [the] plaintiff[] had knowledge and relied on in bringing suit,” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted). B. Analysis Walmart argues that Plaintiff’s Title VII claims are time-barred; that Plaintiff has failed to state a plausible claim of discrimination or retaliation under §1981 or the NYSHRL; that Plaintiff does not allege conduct that is sufficiently severe or pervasive to support hostile work environment claims; and that as Plaintiff’s pleading issues are substantive, dismissal should be with prejudice. (See generally Def.’s Mem.) The Court addresses these arguments only to the extent necessary to decide the instant Motion. 1. Title VII Claims It is well established that a Title VII plaintiff “may bring suit in federal court only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter.” Holmes v. YMCA of Yonkers, Inc., No. 19-CV-620, 2020 WL 85389, at *2 (S.D.N.Y. Jan. 7, 2020) (citing Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per curiam)). “[I]n states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the Equal Employment Opportunity Commission is 300 days.” Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 126 (2d Cir. 2010) (alteration, citation and quotation marks omitted). The administrative exhaustion requirement applies to pro se and counseled plaintiffs alike. See Pikulin v. City Univ. of N.Y., 176 F.3d 598, 599-600 (2d Cir. 1999) (per curiam) (explaining that pro se plaintiffs’ “complete failure to file a complaint with the EEOC, and their insistence that they are not required to file such, bar consideration of their Title VII claim”). However, “the exhaustion requirement, while weighty, is not jurisdictional.” Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000). It is a “requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir. 2006) (“Because [the] failure to exhaust [one's] administrative remedies is not a jurisdictional defect, it is subject to equitable defenses.”). Failure to file a charge with the EEOC thus constitutes an “affirmative defense to claims under [Title VII].” Rodriguez v. N.Y.C. Dep’t of Transp., No. 11-CV-3056, 2012 WL 4447101, at *2 (E.D.N.Y. Sept. 25, 2012). Nevertheless, “if non[-]exhaustion is clear from the face of the complaint (and incorporated documents), a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted.” Gomez v. N.Y.C. Police Dep’t, 191 F. Supp. 3d 293, 299 (S.D.N.Y. 2016) (citations and quotation marks omitted); see also Arnold v. Research Found. for State Univ. of N.Y., 216 F. Supp. 3d 275, 286-87 (E.D.N.Y. 2016) (“Although a plaintiff is not required to explicitly plead or demonstrate exhaustion at the pleading stage, a court should nonetheless grant a motion to dismiss pursuant to 12(b)(6) for failure to exhaust if it is clear from the face of the complaint that a plaintiff has not exhausted their remedies.” (citation and quotation marks omitted)). Here, Plaintiff’s Title VII claims — that Walmart discriminated against him based on his race and national origin — rely solely on conduct that occurred in 2016 and 2017. (See Am. Compl. 5-8.) Indeed, the last possible date that any such conduct could have occurred was the day on which Plaintiff was terminated, sometime in 2017. (See id. at 10-11; see also Pl.’s Reply Mem. 3.) However, Plaintiff acknowledges that he never filed a discrimination charge with any government agency, either within 300 days of his termination or at any point thereafter. (See Am. Compl. 3.) The 300-day statutory deadline had thus clearly run by the time Plaintiff filed his initial Complaint on April 1, 2019. (See Dkt. Nos. 1-2.) Plaintiff has, therefore, failed to exhaust his administrative remedies. To the extent Plaintiff argues that his ignorance of the EEOC entitles him to equitable tolling of this deadline, his argument is unavailing. “Equitable tolling of the 300-day statutory deadline is only appropriate in rare and exceptional circumstances in which a party is prevented in some extraordinary way from exercising his rights.” Zerilli-Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (citation and quotation marks omitted). Thus, when determining whether equitable tolling is applicable, a district court must consider whether the plaintiff (1) has “acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Id. (citation and quotation marks omitted). Moreover, courts in the Second Circuit have repeatedly explained that mere ignorance of exhaustion requirements is not adequate grounds for applying equitable tolling. See Francis v. Blaikie Grp., 372 F. Supp. 2d 741, 748 (S.D.N.Y. 2005) (explaining that the plaintiff’s “ignorance of her ability to file a charge with the EEOC” was not “a sufficient basis for tolling the limitation period”); see also Rudaj v. Treanor, 522 F. App’x 76, 77 (2d Cir. 2013) (“[N]either [the plaintiff's] pro se status nor his professed ignorance of the law demonstrate “rare and exceptional circumstance[s] warranting equitable tolling.” (citation and quotation marks omitted)); Woods v. Unum Life Ins. Co. of Am., No. 09-CV-809, 2011 WL 166205, at *5 (D. Conn. Jan. 19, 2011) (explaining, in the context of ERISA claims, that “a claimant ignorant of the exhaustion requirement is not relieved of the requirement”); Jowers v. Lakeside Family & Children’s Servs., 435 F. Supp. 2d 280, 284 (S.D.N.Y. 2006) (explaining that a plaintiff’s ignorance of the discriminatory nature of his termination did not justify equitable tolling); accord Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) (“Mistakes of law or ignorance of proper legal procedures are not extraordinary circumstances warranting invocation of the doctrine of equitable tolling.”). Accordingly, Plaintiff’s simple assertion that he “did not file with the EEOC because [he] did not know about” the EEOC, (Am. Compl. 6), is insufficient to establish a sufficient basis for equitable tolling. See Dezaio v. Port Auth. of NY & NJ, 205 F.3d 62, 64-65 (2d Cir. 2000) (explaining that exhaustion requirements “trip[] up laypersons and lawyers alike,” but that “ignorance of the law excuses no one; not because courts assume everyone knows the law, but because this excuse is one all will plead and no one can refute”). Similarly, to the extent Plaintiff argues that he is entitled to equitable tolling because Walmart misled him into refraining from pursuing administrative remedies, that argument fails as well. To be sure, extraordinary circumstances may sometimes be present when “an adversary ‘induced or tricked’ the plaintiff into filing after a deadline passed,…[or] affirmative misconduct by the defendant ‘lulled [the] plaintiff into inaction.’” Jiles v. Rochester Genesee Reg’l Transp. Auth., 217 F. Supp. 3d 688, 691 (W.D.N.Y. 2016) (quoting South v. Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d Cir. 1994)); see also Zhou v. Wu, No. 14-CV-1775, 2017 WL 1233994, at *3 (S.D.N.Y. Mar. 31, 2017) (“Federal courts have typically extended equitable relief only sparingly in suits against private litigants, allowing tolling where the claimant has actively pursued his judicial remedies by filing a defective pleading or where he has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96-97 (1990))). However, to invoke a defendant’s misconduct as a basis for equitable tolling or estoppel, “a plaintiff must show that he brought his action within a reasonable time after the facts giving rise to the estoppel have ceased to be operational.” Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1494 (2d Cir. 1995) (citing Overall v. Estate of Klotz, 52 F.3d 398, 404 (2d Cir. 1995) (quotation marks omitted)); see also Harper v. Ercole, 648 F.3d 132, 136 (2d Cir. 2011) (explaining that a statute of limitations is suspended only “for the duration of the extraordinary circumstances supporting tolling,” after which the statute of limitations continues to run). Here, Plaintiff alleges that Walmart informed him that he had to “exhaust [his] remedies through Walmart management first,” and that “management [then] failed to act.” (Am. Compl. 6.) The Court need not decide whether such an alleged statement by Walmart suffices in theory to justify equitable tolling, because Plaintiff continued his failures long after — indeed, for well more than 300 days after — he ended his employment with Walmart. “Once the circumstances inducing reliance are exposed, the plaintiff’s obligation to timely file is reimposed.” Buttry, 68 F.3d at 1491 (citation omitted). Thus, “even if [Plaintiff] relied on a misrepresentation made to [him] by [Defendant], [Plaintiff] had to bring h[is] action within a reasonable time after [his termination]. This []he did not do.” Id. Plaintiff’s tardiness in pursuing remedies following his termination “amounted to no more than excusable neglect undeserving of equitable tolling.” Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566, 579 (E.D.N.Y. 2011) (citation omitted). Plaintiff’s Title VII claims must therefore be dismissed. 2. Section 1981 Claims Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right…to make and enforce contracts…as is enjoyed by white citizens….” 42 U.S.C. §1981(a). Section 1981 thus prohibits racial discrimination “with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment.” Calvelos v. City of New York, No. 19-CV-6629, 2020 WL 3414886, *9 (S.D.N.Y. June 22, 2020) (citation omitted).⁴ Accordingly, as with Title VII and §1983 claims, a §1981 plaintiff may allege that discrimination occurred in the form of discrete adverse employment actions, as well as by means of conduct creating a “hostile work environment.” See Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (discussing the similarities and differences between Title VII, §1981, and §1983). Although §1981 does not itself “specifically authorize[] private lawsuits to enforce” its prohibitions, the Supreme Court has “created a judicially implied private right of action.” Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020). Generally, “[p]ersonal liability under section 1981 must be predicated on the actor’s personal involvement.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68, 75 (2d. Cir. 2000); see also Patterson, 375 F.3d at 206 (same). Relatedly, a plaintiff may pursue §1981 claims only where the defendants acted “with discriminatory intent.” See Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 389 (1982) (explaining that “§1981 reaches only purposeful discrimination”); Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 68 (2d Cir. 2015). And as the Supreme Court has recently clarified, “[t]o prevail, a [§1981] plaintiff must initially plead and ultimately prove that, but for race, [he] would not have suffered loss of his legally protected rights.” Comcast Corp., 140 S. Ct. at 1019. In other words, a successful §1981 plaintiff must plausibly allege that the defendant’s discriminatory intent was a “but-for” cause of an actionable adverse employment action or hostile environment. Id. In the Second Circuit, §1981 claims are generally “assessed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Bowen-Hooks, 13 F. Supp. 3d at 209. Thus, a plaintiff bringing a discrimination claim must plausibly allege that: “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citation and quotation marks omitted). Under the same framework, a plaintiff bringing a retaliation claim must establish that (1) he “participat[ed] in a protected activity”; (2) the defendant “kn[ew] of the protected activity”; (3) he suffered an “adverse employment action”; and (4) the existence of a “causal connection between the protected activity and the adverse employment action.” See Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir. 2013) (citation and quotation marks omitted). a. Discrimination Based on Discrete Adverse Employment Actions Here, Plaintiff has alleged that his termination is the actionable adverse employment action. Indeed, termination does qualify as an adverse employment action. See Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (“To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change 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.” (citation omitted)); Opoku v. Brega, No. 15-CV-2213, 2016 WL 5720807, at *7 (S.D.N.Y. Sept. 30, 2016) (explaining that termination is a “quintessential materially adverse employment action,” but that “excessive scrutiny, criticism, and negative evaluations…are not…unless such conduct is accompanied by negative consequences, such as demotion, diminution of wages, or other tangible loss” (quotation marks and citations omitted)). However, Plaintiff fails to provide non-conclusory allegations that plausibly suggest that his race, national origin, or a relevant protected activity, was a “but-for” cause of his termination. Indeed, Plaintiff can point to no racially discriminatory statements or conduct by his Walmart supervisors, or anyone conceivably involved in the decision to fire him. (See generally Am. Compl.)⁵ Rather, Plaintiff simply (and conclusorily) alleges that he was “fired because defendants saw him as another expendable Hispanic,” and that “Walmart has a history of discrimination and illegal conduct.” (Pl.’s Reply Mem. 6.) These are “boilerplate assertion[s]” unsupported by specific facts. Lopes v. Westchester County, No. 18-CV-8205, 2020 WL 1445729, at *5 (S.D.N.Y Mar. 25, 2020) (citation and quotation marks omitted). Further, Plaintiff’s conclusory assertion regarding the reason for his firing is contradicted by Plaintiff’s own pleadings. Indeed, Plaintiff acknowledges that it was his confrontation with King in the Walmart parking lot — and thus, his subsequent arrest and conviction — that directly led to his termination. (See Am. Compl. 11 (explaining this his “confrontation in [the] Walmart parking lot…led me to get fired”).) Such an altercation, and surely Plaintiff’s related arrest and conviction, amount to “legitimate, nondiscriminatory” reasons for his discharge. See Smith v. N.Y. & Presbyterian Hosp., 440 F. Supp. 3d 303, 335 (S.D.N.Y. 2020) (explaining that an employee’s “disruptive behavior in the workplace” constitutes a legitimate, non-discriminatory reason for adverse actions); Welland v. Citigroup, Inc., No. 00-CV-738, 2003 WL 22973574 at *6 (S.D.N.Y. Dec. 17, 2003) (“Discharging an employee for violating company policy constitutes a legitimate nondiscriminatory reason for terminating employment.” (citations omitted)), aff’d, 116 F. App’x 321 (2d Cir. 2004). Plaintiff’s own allegation therefore suggests that his termination did not occur “under circumstances giving rise to an inference of discriminatory intent.” Brown, 673 F.3d at 150. Rather, Plaintiff’s own pleadings (and matters of which the Court may take judicial notice) suggest that he was fired based on a violent altercation, arrest, and conviction. Plaintiff has therefore failed to allege circumstances suggesting “a causal connection between the alleged adverse employment action and [his] race.” Edwards v. Thomson Reuters (Tax & Accounting) Inc., No. 19-CV-93, 2020 WL 2132348, at *4 (S.D.N.Y. May 5, 2020). Moreover, Plaintiff’s allegations are particularly self-defeating in light of the Supreme Court’s recent decision establishing “but-for” causation as a necessary element of §1981 suits. See Comcast, 140 S. Ct. at 1019. In light of this requirement, Plaintiff’s affirmative acknowledgement of sufficient, non-discriminatory reasons for his termination is determinative. As the Second Circuit has recently explained, where “but-for” causation is required, a plaintiff “must establish that the employer’s stated non-discriminatory reason is either false or inadequate to support the adverse employment action.” Naumovski v. Norris, 934 F.3d 200, 215 (2d Cir. 2019). Plaintiff’s express acknowledgement, apparent from the face of his Amended Complaint, that the altercation (a sufficient, non-discriminatory reason) led to his termination is thus fatal to his claims, even at the pleading stage. See Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 222 (E.D.N.Y. 2018) (dismissing a plaintiff’s retaliation claims because materials integral to her complaint “undercut but-for causation,” and explaining that the plaintiff thus “failed to successfully plead that ‘but for’ the [p]laintiff’s complaints of gender, race, and national origin discrimination, the [d]efendants would not have terminated [the plaintiff]“); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (explaining that a plaintiff pursuing Title VII retaliation claims “must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action” (citation omitted)); Langella v. Mahopac Cent. Sch. Dist., No. 18-CV-10023, 2020 WL 2836760, at *11 (S.D.N.Y. May 31, 2020) (dismissing ADA claims for failing to plausibly allege that disability was the “but-for” cause of an adverse employment decision).⁶ To the extent that Plaintiff argues that Walmart’s differential treatment of himself and King — a white employee — reflects racially discriminatory treatment, (see Pl.’s Mem