Winston v. City of New York et al
MEMORANDUM & ORDER: Defendant's motion 26 to dismiss is GRANTED. Ordered by Judge Frederic Block on 8/23/2013. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------x MEMORANDUM AND ORDER
Case No. 12-CV-0395 (FB) (VVP)
-againstCITY OF NEW YORK, NEW YORK CITY
POLICE DEPARTMENT, INSPECTOR
BRYAN, CAPTAIN MICHAEL VANCHIERI,
LT. GORDON HUGHES, LT. NICHOLAS
FERRARO, individually and in their official
For the Plaintiff:
ILYA MORDUKHAEV, ESQ.
MARIAM AHMAD, ESQ.
CRONIN & BYCZEK, LLP
1983 Marcus Avenue, Suite C-120
New Hyde Park, NY 11042
For the Defendants:
MICHAEL A. CARDOZO
Corporation Counsel of the
City of New York
KATHRYN E. LEONE, ESQ.
ROBERT KATZ, ESQ.
Assistant Corporation Counsel
100 Church Street, Room 3-200
New York, NY 10007
BLOCK, Senior District Judge:
Plaintiff Candra Winston (“Winston”) brings this action against defendants City
of New York, New York City Police Department (“NYPD”), Inspector Bryan (“Bryan”),
Captain Michael Vanchieri (“Vanchieri”), Lieutenant Gordon Hughes (“Hughes”), and
Lieutenant Nicholas Ferraro (“Ferraro”) (collectively “defendants”), alleging gender
discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1983, New York State Executive Law (“NYSHRL”)
§ 296, and New York City Administrative Code (“NYCHRL”) § 8-107.1
Defendants move pursuant to Rule 12(b)(6) to dismiss each of the claims in
Winston’s amended complaint. As part of her response, Winston requests permission to
further amend and attaches a proposed second amended complaint (“SAC”). Because Federal
Rule of Civil Procedure 15 requires the Court to “freely give leave” to amend, her request is
granted and the motion to dismiss is considered in light of the SAC.2 FED. R. CIV. P. 15(a)(2).
Accepting as true all of the allegations in plaintiff’s complaint, and drawing all inferences in
her favor, see Weixel v. Board of Educ., 287 F. 3d 138, 145 (2d Cir. 2002), Winston nevertheless
fails to state any claim upon which relief may be granted.
Winston is an NYPD Detective Sergeant who has been with the department
since 1992. She claims that during a 2008-2009 assignment to the “Narcotics Borough
Queens,” defendants discriminated against her due to her gender. In support, Winston states
that superiors Hughes, Vanchieri, Bryan, Ferraro and non-defendant Anthony Kotarski
(“Kotarski”) repeatedly “undermined [her] authority and control . . . as the immediate
supervisor of the 106 Pet Module Team.” Compl. ¶ 22. These superiors granted team
On May 19, 2010, Winston filed a discrimination charge with the Equal
Opportunity Employment Commission (“EEOC”). Upon the EEOC’s subsequent
dismissal of the charge, Winston timely filed this action. On June 28, 2012, she filed an
amended complaint. Winston’s opposition states that she has withdrawn all claims
alleging racial discrimination, violations of 42 U.S.C. §§ 1981 and 1985, and Monell
The SAC is largely identical to the amended complaint, with the exception of
two additional instances of gender discrimination. All references in this Memorandum
and Order are to the SAC.
members days off without Winston’s permission, instructed team members to disregard her
instructions, prevented her from disciplining team members, and generally withheld
information necessary for Winston to properly perform her supervisory duties. Compl.
¶¶ 22-25, 29. Winston alleges that this discrimination resulted in a reduction of her overtime
hours, her removal as Assistant Integrity Control Officer (“ICO”), Assistant Operations
Coordinator, and Court Supervisor, and a demotion to a regular enforcement team. Compl.
¶¶ 31-32, 35.
“[T]o establish a claim of  gender discrimination under Title VII, a claimant
must show that: (1) [s]he belonged to a protected class; (2) [s]he was qualified for the position;
(3) [s]he suffered an adverse employment action; and (4) the adverse employment action
occurred under circumstances giving rise to an inference of discriminatory intent.” Terry v.
Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). This same standard governs discrimination claims
alleged under § 1983 and the NYSHRL and NYCHRL. See Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010); Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010).
Winston’s allegations easily meet the first three requirements. See Terry, 336
F.3d at 138 (“An ‘adverse employment action’ . . . include[s] . . . 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). However, her attempts to raise an inference of discriminatory intent fall
short of satisfying the requisite pleading standards.
“A plaintiff alleging gender
discrimination may raise an inference thereof by showing that the employer treated her less
favorably than similarly situated male employees.” Ramos v. Marriot Int’l, 134 F. Supp. 2d 328,
339 (S.D.N.Y. 2001) (citing Int’l Bd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977)).
A plaintiff must demonstrate that she was “similarly situated in all material respects” with
her male counterparts—in other words, that there exists “a reasonably close resemblance of
the facts and circumstances.” Id. (citing Shumway v. United Parcel Serv. Inc., 118 F.3d 60, 64
(2d Cir. 1997)). Relevant to the inquiry is whether “[plaintiff] and those ‘similarly situated’
were subject to the same workplace standards . . . .” Graham v. Long Island R.R., 230 F.3d 34,
40 (2d Cir. 2000)).
Winston’s assertions that defendants “undermined her authority” do not raise
an inference of discriminatory intent. Additionally, while she alleges that she was treated
differently from Ferraro and Vanchieri regarding assignments for the Puerto Rican Day
Parade and in her ability to bring her children to work, such allegations are also
insufficient—these individuals were Winston’s superiors, and she does not allege that she was
either similarly situated or subject to the same workplace standards. See Ombu v. Children’s
Television Workshop, 516 F. Supp. 1055, 1062 (S.D.N.Y. 1981) (granting summary judgment on
plaintiff’s discrimination claim alleging that she was similarly situated to a supervisor with
different responsibilities); Khan v. Bank of Am., 572 F. Supp. 2d 278, 292 (N.D.N.Y. 2008)
(finding no inference of discrimination where plaintiff compared himself to non-similarly
situated superiors); Prescod v. Am. Broad. Co., 1985 WL 430, at *14 (S.D.N.Y. Mar. 19, 1985)
(“Supervisors are not similarly situated employees”).
The remainder of Winston’s assertions of disparate treatment “are little more
than conclusory statements of no probative value.” Shumway, 118 F.3d at 64. Winston makes
vague, general allegations that other male employees were treated differently, but fails to
identify any individuals or claim that they were similarly situated in all material respects. For
instance, she does not provide the names of any similarly situated male employees, nor does
she attempt to describe these individuals’ positions and/or history with the NYPD, or supply
details concerning the factual circumstances of their differing treatment. See Compl. ¶ 22
(“Kotarski did not treat similarly situated male supervisors in such manner”); ¶ 24 (Vanchieri
did not undermine other ICOs’ disciplining of team members); ¶ 25 (“[Other] detective[s]
w[ere] properly disciplined . . . when a similarly situated male supervisor had a problem with
[them]”); ¶ 28 (Plaintiff was the only person disciplined for providing overtime slips to an
ICO assistant); ¶ 29 (“No male officers ha[d] their overtime hours reduced”); ¶ 33
(“[D]efendants tried to get special assignment pay for a male detective for his duties as
ICO . . . [but] never tried to get such assignment pay for plaintiff . . . .”).
Accordingly, even accepting Winston’s allegations as true, they are all simply
general, broad, conclusory statements, and fail to raise an inference of discriminatory intent.
See Shumway, 118 F.3d at 64 (affirming dismissal of gender discrimination claims where
plaintiff claimed that “numerous male supervisory employees violated [a no-fraternization]
policy by fraternizing with female clerical employees,” and that “despite this prohibition
numerous male managers and supervisors violated this policy and no disciplinary action was
taken against these employees.”); see also Howard v. MTA Metro-North Commuter R.R., 866 F.
Supp. 2d 196, 208 (S.D.N.Y. 2011) (dismissing discrimination claim where plaintiff failed to
adequately demonstrate that “other individuals [behaving similarly] in circumstances similar
to [plaintiff’s] were not subjected to termination;” stating “it is insufficient to offer little more
than conclusory statements or sweeping allegations . . . .” (citation omitted)).
Hostile Work Environment
“A hostile work environment claim requires a showing  that the harassment
was sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment, and  that a specific basis exists for imputing the
objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)
(citation and internal quotations omitted); see also Quinn v. Tree Credit Corp., 159 F.3d 759, 765
(2d Cir. 1998) (same standard governs state law claims). That is, a plaintiff “must show that
the workplace was so severely permeated with discriminatory intimidation, ridicule, and
insult that the terms and conditions of her employment were thereby altered.” Alfano, 294
F.3d at 373. Dispositive to the inquiry, a plaintiff must demonstrate that the hostility is
“discriminatory”—that is, impermissibly based upon gender. See Alfano, 294 F.3d at 373.
Since, as discussed above, Winston fails to raise an inference of discriminatory animus, her
hostile work environment claims must also fail.
A plaintiff claiming retaliation must demonstrate: (1) that she participated in
a protected activity known to defendants; (2) that she suffered an adverse employment action;
and (3) that there was a causal connection between her engaging in the protected activity and
the adverse employment action. See Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d
199, 205-06 (2d Cir. 2006); see also Adams v. City of New York, 837 F. Supp. 2d 108, 128 (E.D.N.Y.
2011) (same standard under the NYSHRL and NYCHRL). “[A] plaintiff can indirectly
establish a causal connection to support a  retaliation claim by showing that the protected
activity was closely followed in time by the adverse employment action.” Gorzynski v. JetBlue
Airways, Corp., 596 F.3d 93, 110-11 (2d Cir. 2010). “Though [the Second Circuit] has not drawn
a bright line defining . . . the outer limits beyond which a temporal relationship is too
attenuated to establish causation, [it has] previously held that five months is not too long to
find the causal relationship.” Id. at 110. In other circumstances, three months may be too
long. See Hollander v. Am. Cyanamid Co., 895 F.3d 80, 85-86 (2d Cir. 1990) (affirming grant of
summary judgment due to lack of causal nexus between protected activity and adverse
Winston’s retaliation allegations fail to satisfy her Rule 12(b)(6) burden. She
alleges that “shortly after . . . processing an [internal Office of Equal Employment
Opportunity] OEEO complaint for a female cleaner in the building,” Winston went on
vacation, and upon her return “she was removed from her Assistant ICO position.”
Compl. ¶ 27. This conclusory allegation is “too vague in nature and non-specific as to
time . . . to serve as a basis” for her retaliation claims. See Chandler v. AMR Am. Eagle Airline,
251 F. Supp. 2d 1173, 1185 (E.D.N.Y. 2003) (dismissing claim on this basis); see also Freeman v.
Dep’t Envtl. Prot., 2013 WL 817221, at *9 n.11 (E.D.N.Y. Feb. 5, 2013) (same). Despite having
had three opportunities to do so, Winston’s latest complaint does not indicate when either the
OEEO filing or her removal as Assistant ICO occurred. Her blanket statement that the
demotion took place “upon return from [a] vacation . . . [taken] . . . shortly after [the
protected activity]” is insufficient to satisfy Iqbal’s standards. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual
matter . . . . [A] complaint [does not] suffice if it tenders naked assertions devoid of further
factual enhancement.”) (citation and internal quotations omitted).
For the above reasons, the Court grants defendants’ motion to dismiss.
/S/ Frederic Block_
Senior United States District Judge
Brooklyn, New York
August 23, 2013
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