Santana v. City of Ithaca, New York et al

Filing 27

MEMORANDUM-DECISION and ORDER - That defendants' 23 Motion to Dismiss is GRANTED in part and DENIED in part as follows: GRANTED as to Santana's claims of gender-based discrimination under the IMC and all claims against Radke in her offic ial capacity. DENIED as to Santana's claims of race-based discrimination under Title VII, 42 U.S.C. §§ 1981 and 1983, and NYSHRL. That Santana's claims of gender-based discrimination under the IMC and all claims against against Radke in her official capacity are DISMISSED. That defendants file the appropriate responsive pleadings within the time allotted by the rules. That the parties notify Magistrate Judge Baxter in order to schedule further proceedings in accordance with the order. Signed by Chief Judge Gary L. Sharpe on 5/1/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RAMON SANTANA,
Plaintiff,

5:12-cv-625
(GLS/ATB)

v.
CITY OF ITHACA, NEW YORK
et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Ramon Santana
Pro Se
604 Spencer Road
Ithaca, NY 14850
FOR THE DEFENDANTS:
Office of the City Attorney
108 East Green Street
Ithaca, NY 14850

PATRICIA M. O’ROURKE, ESQ.
KRIN M. FLAHERTY, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Ramon Santana commenced this action against
defendants City of Ithaca, New York and Ithaca Building Commissioner

Phyllis Radke, alleging violations of Title VII,1 42 U.S.C. §§ 1981 and 1983,
New York State Human Rights Law (NYSHRL),2 and Chapters 55 and 215
of the City of Ithaca Municipal Code (IMC). (See 2d Am. Compl., Dkt. No.
22.) Pending is defendants’ motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). (See Dkt. No. 23.) For the reasons that follow, the motion is
granted in part and denied in part.
II. Background
A.

Facts3
In the winter of 2006-2007, following five years of employment with

the Ithaca Department of Public Works, Santana, a Hispanic male, became
a housing inspector with the city’s Building Department (IBD). (See 2d Am.
Compl. ¶¶ 3, 7.) The following summer, along with a senior code
inspector, Santana was assigned to conduct housing inspections for
Ithaca’s “‘West End area,’” which he contends comprises fifty percent of
the city. (Id. ¶¶ 8-9.) Shortly after that assignment, Santana informed

1

See 42 U.S.C. §§ 2000e-2000e-17.

2

See N.Y. Exec. Law §§ 290-301.

3

The facts are drawn from Santana’s Second Amended Complaint
and presented in the light most favorable to him. (See 2d Am. Compl.)
2

Commissioner Radke and a non-party IBD supervisor that “he had too
many stacks of files backlogged and was unable to get files off his desk.”
(Id. ¶ 9.) He made similar complaints to the senior code inspector with
whom he shared responsibility for Ithaca’s West End area, and noted that
five Caucasian IBD employees “were assisting one another in different
capacities with the housing inspection assignments in a much
geographically smaller area of” Ithaca, resulting in a “disparate workload.”
(Id. ¶¶ 8, 10.) Despite his protestations, “little to no action was taken,” and,
in early February 2009, Santana received a “Counseling Letter” containing
“various allegations of falling behind in completing files and failing to use
the new [IBD] computer systems correctly.” (Id. ¶ 10.) Santana notified
Radke again that “files were backlogged on his desk,” and, on August 28,
2009, “request[ed] the use of overtime hours or compensatory time to
reconcile paperwork for files that were piling up on [his] desk.” (Id. ¶¶ 1112.) Although Caucasian housing inspectors had been permitted to use
overtime hours in similar situations, Santana’s request was denied. (See
id. ¶¶ 12, 29.)
In addition to being assigned a disproportionate geographical area,
Santana was also required by Radke to inspect more units each week than
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at least one of his Caucasian colleagues. (See id. ¶¶ 20, 22.) Radke
further required Santana to submit a weekly report indicating the number of
units which he inspected each week; a task not demanded of the
Caucasian inspectors. (See id. ¶ 19.) In June 2010, Radke instructed
IBD’s front office secretary to fill Santana’s schedule with inspections from
10:00 A.M. to 3:00 P.M. daily, and he was no longer allowed to “‘block off’”
days in order to catch up on paperwork. (Id. ¶ 27.) These restrictions
applied only to Santana, and, while a Caucasian housing inspector was
permitted to adjust his calendar to permit more time to complete
paperwork, a similar request submitted by Santana was refused. (See id.
¶¶ 27, 30-31.)
At some point during 2009 or 2010, during an open staff meeting,
IBD’s former Executive Secretary expressed concern about Santana
“bringing paperwork to field inspections using [IBD] envelopes.” (Id. ¶ 15.)
When Santana explained to Radke that he “just want[ed] to make sure the
paperwork [was not] defaced with grease or dirt when [he gave] it to the
customer,” Radke responded: “‘Ray I know how ‘you people’ like to go to
Burger King on your breaks, I wouldn’t want you to get grease on your
paperwork.” (Id.) Furthermore, in January 2010, Santana was falsely
4

accused by Radke and another supervisor of “attempting to alter or forge
Excel spreadsheet documents during a meeting.” (Id. ¶ 18.)
Along with a disproportionate caseload and derogatory remarks,
Santana insists that he was subjected to unequal disciplinary standards. In
December 2009, he was verbally admonished by Radke “for parking his
official City vehicle in front of City Hall.” (Id. ¶ 14.) During the subsequent
three months, a Caucasian senior code inspector parked his City vehicle in
the same space on five occasions without warning or discipline. (See id.)
Santana was also subjected to greater supervisory oversight during home
inspections than were his Caucasian colleagues, and, on September 30,
2010, he was terminated for, in part, “ignoring code violations,” while the
same or similar ignorance by Caucasian inspectors went undisciplined.
(Id. ¶¶ 32-35.)
B.

Procedural History
On April 19, 2012, Defendants moved to dismiss Santana’s original

Complaint. (See Dkt. No. 6.) Santana was subsequently permitted by the
court to amend his Complaint on two occasions, and both amendments
were followed by defendants’ renewal of their motion to dismiss. (See Dkt.
Nos. 9, 11, 12, 18, 20, 21, 22, 23.) Defendants’ most recent motion, which
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is presently pending before the court, seeks to dismiss Santana’s Second
Amended Complaint. (See Dkt. No. 23.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12 is well settled and
will not be repeated here. For a full discussion of that standard, the court
refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP,
701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
A.

Racial Discrimination Claims
Defendants contend first that Santana’s allegations fail to state a

valid claim of racial discrimination. (See Dkt. No. 23, Attach. 1 at 3-13.)
Santana counters, and the court agrees, that he has met his pleading
burden. (See Dkt. No. 25, Attach. 1 at 3-9.)
“[A] complaint need not establish a prima facie case of employment
discrimination to survive a motion to dismiss; however, the claim must be
facially plausible and must give fair notice to the defendants of the basis for
the claim.” Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d
210, 215 (S.D.N.Y. 2010) (internal quotation marks and citation omitted)
(reconciling Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atl. Corp. v.
6

Twombly, 550 U.S. 544 (2007), and Swierkiewicz v. Sorema N.A., 534 U.S.
506 (2002)).
Claims of employment discrimination brought under Title VII, 42
U.S.C. §§ 1981 and 1983, and NYSHRL are subject to a largely identical
analytical framework. See Lore v. City of Syracuse, 670 F.3d 127, 169 (2d
Cir. 2012); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010);
see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 224-27 (2d Cir.
2004) (articulating differences between Title VII and sections 1981 and
1983). To state a prima facie discrimination claim, the plaintiff must show
that: “(1) he is a member of a protected class; (2) he was qualified for the
position he held; (3) he suffered an adverse employment action; and (4)
the adverse action took place under circumstances giving rise to the
inference of discrimination.” Ruiz, 609 F.3d at 491-92.
Where a discrimination claim is predicated on the existence of a
hostile work environment, the plaintiff must sufficiently allege that the
conduct in question: “(1) is objectively severe or pervasive—that is, creates
an environment that a reasonable person would find hostile or abusive; (2)
creates an environment that the plaintiff subjectively perceives as hostile or
abusive; and (3) creates such an environment because of the plaintiff’s”
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protected characteristic. Robinson v. Harvard Prot. Servs., 495 F. App’x
140, 141 (2d Cir. 2012). In determining whether a hostile work
environment claim has been established, “courts should examin[e] the
totality of the circumstances, including: the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with the
victim’s [job] performance.” Rivera v. Rochester Genesee Reg’l Transp.
Auth., 702 F.3d 685, 693 (2d Cir. 2012) (internal quotation marks and
citation omitted).
1.

Elements Common to all Race Claims

Santana alleges that, because he is Hispanic, he was subjected by
defendants to both disparate treatment and a hostile work environment
under Title VII, 42 U.S.C. §§ 1981 and 1983, and NYSHRL.4 (See 2d Am.
Compl.) Despite defendants’ arguments to the contrary, Santana’s
pleading alleges facially plausible claims of discrimination under both
theories of liability.
4

Although Santana’s NYSHRL claim expressly alleges violation of
only N.Y. Exec. Law § 296(6), (see 2d Am. Compl. ¶¶ 98-120), which
provides for an aiding-and-abetting theory of liability, the court, construing
the allegations liberally, as it must, reads the pleading to contain a claim
under section 296(1) as well, (see id. ¶ 119).
8

As a Hispanic male who, prior to the period in question, was
evaluated as an “outstanding employee,” and who was subsequently
terminated, Santana satisfies the first three elements of a disparate
treatment claim. (2d Am. Compl. ¶¶ 3, 7, 33.) Furthermore, taken
together, Santana’s allegations that he was: assigned a greater caseload
than were his Caucasian colleagues; provided less resources with which to
complete that work; reprimanded and terminated under unequal
disciplinary standards; and subjected to racially-charged language by
Radke, are sufficient to give rise to an inference of discrimination. (See 2d
Am. Compl.); Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir. 2004)
(finding evidence of discriminatory intent where workload and disciplinary
standards varied markedly along racial lines); see also Lessambo v.
PricewaterhouseCoopers, L.P., No. 08 Civ. 6272, 2010 WL 3958787, at *9
(S.D.N.Y. Sept. 27, 2010) (“Further, even stray discriminatory remarks,
when combined with other indicia of discrimination like disparate treatment,
can raise an inference of discrimination.” (internal quotation marks and
citations omitted)). Considering the totality of the circumstances,
Santana’s hostile work environment claim is similarly plausible at this
juncture. See Raniola v. Bratton, 243 F.3d 610, 617-23 (2d Cir. 2001);
9

Towers v. State Univ. of N.Y. at Stony Brook, No. CV-04-5243, 2007 WL
1470152, at *1-2 (E.D.N.Y. May 21, 2007).
Accordingly, to the extent that it seeks dismissal of Santana’s racial
discrimination claims for insufficient pleadings, defendants’ motion is
denied.
2.

Section 1983

In addition to their insufficiency-of-the-pleadings argument as to all
discrimination claims, defendants seek dismissal specifically of Santana’s
section 1983 claim for lack of personal involvement, as well as for failure to
show municipal liability. (See Dkt. No. 23, Attach. 1 at 14-15, 18-19.) The
court is not persuaded by either argument.
Despite defendants’ contention to the contrary, Santana’s pleading
is replete with allegations of personal involvement by Radke in the
purported deprivation of his constitutional rights. (See generally 2d Am.
Compl.) Similarly, Santana has alleged that the deprivation of his rights
resulted from a discriminatory “custom, practice and policy” engaged in
and perpetuated by Ithaca, and has set forth facts which, taken as true, are
sufficient at this stage of the litigation to state a plausible cause of action
against the municipality. (2d Am. Compl. ¶¶ 38-41); see Hartline v. Gallo,
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546 F.3d 95, 103 (2d Cir. 2008) (“To prevail against a municipality on a
[section] 1983 claim, a plaintiff must demonstrate both an injury to a
constitutionally protected right and that the injury was caused by a policy or
custom of the municipality or by a municipal official responsible for
establishing final policy.” (internal quotation marks and citations omitted)).
3.

Failure to Exhaust Administrative Remedies

Defendants argue next, in a cursory fashion, that “[a]nything
[Santana] failed to include in his EEOC charge should be dismissed.” (Dkt.
No. 23, Attach. 1 at 13-14.) In light of the limited record presently before
the court, however, and the fact that claims “not asserted before the EEOC
may be pursued in a subsequent federal court action if they are reasonably
related to those that were filed with the agency,” Breedlove v. Cabou, 296
F. Supp. 2d 253, 275 (N.D.N.Y. 2003), dismissal on exhaustion grounds is
inappropriate at this juncture.
B.

Ithaca Municipal Code (IMC) Gender Discrimination Claims
Next, defendants argue, and the court agrees, that Santana’s claims

of gender5 discrimination require dismissal. (See Dkt. No. 23, Attach. 1 at
5

In counts five and six of his Second Amended Complaint, Santana
alleges that he was discriminated against because of his “sex gender.”
(2d Am. Compl. ¶¶ 130, 135.) Although it is unclear whether Santana
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12-13.) The crux of Santana’s gender-based claims is that, in selecting an
arbitrator who purportedly shares the same sexual orientation as Radke,
Ithaca denied Santana his right to “avoidance of conflict,” and
discriminated against him because of his “sex gender,” all in violation of
sections 55 and 215 of the IMC. (2d Am. Compl. ¶¶ 121-136; Dkt. No. 23,
Attach. 1 at 13.) Though Ithaca contends that Santana’s allegations
regarding the arbitrator’s sexual orientation are “openly known to be
untrue,” even when credited, they plainly fail to allege any wrongdoing or
discrimination on the part of the city. (Dkt. No. 23, Attach. 1 at 13.)
Outside of these allegations, which defendants’ aptly characterize as being
based on “assumptions that are sexist themselves,” (id.), Santana’s
pleading is entirely devoid of any facts which suggest that he was
discriminated against because of his gender. (See generally 2d Am.
Compl.) As such, defendants’ motion to dismiss Santana’s IMC claims is
granted.
C.

Official Capacity Claims

seeks to allege gender or sexual orientation discrimination, or both, this
ambiguity is immaterial as his claim is fatally flawed under either
characterization. Accordingly, for the sake of consistency and clarity, the
court refers to the allegations contained in counts five and six as “gender”
claims.
12

Next, defendants argue that the claims against Radke in her official
capacity should be dismissed as redundant. (See Dkt. No. 23, Attach. 1 at
18.) The court agrees.
“Within the Second Circuit, where a plaintiff names both the
municipal entity and an official in his or her official capacity, district courts
have consistently dismissed the official capacity claims as redundant.”
Philips v. Cnty. of Orange, 894 F. Supp. 2d 345, 384 n.35 (S.D.N.Y. 2012);
see Zachary v. Clinton Cnty., N.Y., No. 1:01CV1281, 2003 WL 24197685,
at *1 (N.D.N.Y. Jan. 10, 2003). Because Ithaca is a named defendant, the
claims against Radke in her official capacity are redundant, and are
therefore dismissed.
C.

Collateral Estoppel
Although defendants concede that Santana “is not barred entirely

from bringing this discrimination lawsuit,” they contend that “many of his
claims” are precluded by a final and binding arbitrator’s award which found
that he was “terminated for just cause.” (Dkt. No. 23, Attach. 1 at 16-17.)
Because the impact, if any, of the arbitration award on Santana’s claims
may depend on the terms of the collective bargaining agreement, see 14
Penn Plaza LLC v. Pyett, 556 U.S. 247, 260-64 (2009), defendants’
13

collateral estoppel argument is denied as premature.
D.

Aiding and Abetting
Finally, defendants argue that Santana’s claim against Radke under

the “aiding and abetting” provision of N.Y. Exec. Law § 296(6) must fail
because she could not have aided or abetted her own alleged conduct.
(Dkt. No. 23, Attach. 1 at 17-18.) In stating this proposition as law,
however, defendants fail to acknowledge that a disagreement exists
between the district courts of this Circuit on the question of whether “an
individual can be held liable as an aider and abettor even though it was
primarily her actions that make the employer liable.” MacBain v. Smiley
Brothers Inc., No. 1:10-CV-1561, 2013 WL 621932, at *13-14 (N.D.N.Y.
Feb. 19, 2013) (collecting cases). In light of defendants’ failure to address
this salient question, their motion on this point, though it may be renewed
at a later date with adequate legal argument, is denied.
V. Conclusion
In sum, Santana’s Title VII, 42 U.S.C. §§ 1981 and 1983, and
NYSHRL claims of disparate treatment and hostile work environment
based on race survive, while his claims of gender-based discrimination

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under the IMC are dismissed.6
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 23) is
GRANTED in part and DENIED in part as follows:
GRANTED as to Santana’s claims of gender-based
discrimination under the IMC and all claims against Radke in
her official capacity; and
DENIED as to Santana’s claims of race-based discrimination
under Title VII, 42 U.S.C. §§ 1981 and 1983, and NYSHRL;
and it is further
ORDERED that Santana’s claims of gender-based discrimination
under the IMC and all claims against Radke in her official capacity are
DISMISSED; and it is further

6

Defendants argue that Santana’s “only cause of action brought
under federal law is his claim for discrimination based on sex and/or
gender,” and that if that claim is dismissed, the court should decline to
exercise jurisdiction over Santana’s remaining state law claims. (Dkt. No.
23, Attach. 1 at 16.) Although Santana’s gender claims fail, defendants’
argument is flawed for two reasons. First, Santana alleges racial
discrimination in violation of Title VII and sections 1981 and 1983.
Second, his claims of gender discrimination allege violations of the IMC,
not federal law. Additionally, defendants’ objections to certain aspects of
Santana’s damage request are denied as premature. (See id. at 19.)
15

ORDERED that defendants file the appropriate responsive pleadings
within the time allotted by the rules; and it is further
ORDERED that the parties notify Magistrate Judge Baxter in order to
schedule further proceedings in accordance with this order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
May 1, 2013
Albany, New York

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