Patel v. The City of New York et al

Filing 26

MEMORANDUM OPINION AND ORDER: Piyush Patel sues defendants The City of New York, Thomas Depippo, Joseph A. Santino, Anna Colares, and John and Jane Doe alleging employment discrimination and retaliation under 42 U.S.C. §§ 1981 and 1983, the New York City Human Rights Law (NYCHRL), and the New York State Human Rights Law (NYHRL). Defendants have moved to partially dismiss Patels complaint. The one dispute left unresolved following oral argument is whether Patels allegations of retaliation fail to state a claim. For the reasons that follow, Patels retaliation claims are dismissed. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 4/9/2013) (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------X
PIYUSH PATEL,
Plaintiff,

MEMORANDUM OPINION AND
ORDER

-against12 Civ. 6312 (MGC)
THE CITY OF NEW YORK, THOMAS
DEPIPPO, JOSEPH A. SANTINO, ANNA
COLARES AND JOHN AND JANE DOE,
Defendants.
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APPEARANCES:
MADUEGBUNA COOPER LLP
Attorneys for Plaintiffs
110 Wall Street, 11th Floor
New York, New York 10005
By:

Samuel O. Maduegbuna, Esq.
David A. Beach, Esq.

MICHAEL A. CARDOZO
CORPORATION COUNSEL OF THE CITY OF NEW YORK
Attorneys for Defendants
100 Church Street, Room 2-143
New York, New York 10007
By:

Jessica Giambrone, Esq.
Alan M. Schlesinger, Esq.
Jane Andersen, Esq.

Cedarbaum, J.
Piyush Patel sues defendants The City of New York, Thomas
Depippo, Joseph A. Santino, Anna Colares, and John and Jane Doe
alleging employment discrimination and retaliation under 42
U.S.C. §§ 1981 and 1983, the New York City Human Rights Law
(NYCHRL), and the New York State Human Rights Law (NYHRL).
Defendants have moved to partially dismiss Patel’s complaint.
The one dispute left unresolved following oral argument is
whether Patel’s allegations of retaliation fail to state a
claim.

For the reasons that follow, Patel’s retaliation claims

are dismissed.
Patel’s retaliation claims center on a September 18, 2009
email incorporated by reference into his complaint.

The email

states in pertinent part:
In October 2006, I was reverted back to my civil service
title CPM II from Deputy director’s position without any
appropriate hearing or reason given to me . . . . This
is clearly discrimination and or retaliation with me.
This is clearly violation of civil service section
seventy five. . . .
As
some
staff
members
were
reinstated
to
their
managerial position and/or their salary was reinstated
. . . .
I am the only person left out with adverse
personal action against me.
I respectfully request to
take appropriate remedial actions. Thanks.
Defendant Thomas DePippo sent a response on September 28,
2009 stating: “I am reviewing your situation with [defendant]
GSS Deputy Commissioner Santino and will get back to you with
the results as soon as I can.”
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Retaliation claims under § 1981, § 1983, the NYHRL, and the
NYCHRL are analyzed pursuant to Title VII principles. Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010) (§ 1981, § 1983, and
NYHRL); Debidat v. Marriott Int’l, Inc., 580 F. Supp. 2d 300,
305 (S.D.N.Y. 2008) (NYHRL and NYCHRL).

Under those principles,

a defendant must plead that “(1) [he] participated in a
protected activity known to the defendant; (2) the defendant
took an employment action disadvantaging [him]; and (3) there
exists a causal connection between the protected activity and
the adverse action.”
Cir. 2007).

Patane v. Clark, 508 F.3d 106, 115 (2d

“The term ‘protected activity’ refers to action

taken to protest or oppose statutorily prohibited
discrimination.”

Cruz v. Coach Stores, Inc., 202 F.3d 560, 566

(2d Cir. 2000).
Patel argues that the four-month gap between his September
2009 email and two alleged failures to promote him in January of
2010 is small enough to show causation.

The Second Circuit “has

not drawn a bright line to define the outer limits beyond which
a temporal relationship is too attenuated to establish a causal
relationship between the exercise of a federal constitutional
right and an allegedly retaliatory action.”

Compare Gorman-

Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d
545, 554-55 (2d Cir. 2001) (four month gap sufficiently
proximate), with McDowell v. N. Shore-Long Island Jewish Health
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Sys., Inc., 788 F. Supp. 2d 78, 83 (E.D.N.Y. 2011) (dismissing
§ 1983 and NYHRL retaliation claims because the “greater than
three month gap, unsupported by any other allegations showing
plausible retaliation, is insufficient to raise an inference of
retaliation”).
The inference of causation here is weakened by the fact
that Patel’s complaint alleges four failures to promote: two
occurring in 2009 prior to his email and two after his email.
Patel provides no explanation about what leads him to believe
that the two post-email failures to promote constitute
retaliation.
Finally, the September 2009 email does not center on a
vigorous claim of past discrimination.

The strongest allegation

Patel makes in the email is that his 2006 demotion was based on
“discrimination and or retaliation,” (emphasis added) and
“clearly” violated a law that does not pertain to
discrimination, but rather protects against retaliation for
disclosure to the government of certain legal violations.
Civ. Serv. Law § 75-b.

N.Y.

The “retaliation” referred to in Patel’s

email almost certainly concerns a 2004 complaint Patel lodged
with the New York City Department of Investigation about alleged
misconduct that, according to the complaint’s own allegations,
had nothing to do with discrimination.

Patel has not alleged

enough to support a plausible inference that the actions taken
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by defendants, which simply entailed maintaining the status quo
that had existed since Patel’s 2006 demotion, were retaliation
for his one sentence suggestion that he may have been the victim
of discrimination in 2006.

For the foregoing reasons, Patel’s

retaliation claims are dismissed.
SO ORDERED.

Dated:

New York, New York
April 9, 2013
S/_______________________________
MIRIAM GOLDMAN CEDARBAUM
United States District Judge

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