Pedrosa v. The City of New York et al
OPINION AND ORDER re: 11 MOTION to Dismiss filed by The City of New York, Nilda Hoffman, Jessica McCrorie, Garfield Edmonds, Kevin Coleman, Salvatore Marchese. For the foregoing reasons, Defendants' Motion for Partial Dismissal of the Complain t is DENIED as to Plaintiff's claims of sexual harassment and hostile work environment against Defendant Edmonds and GRANTED in all other respects. For ease of reference, the claims dismissed by this decision are: (i) retaliation under the Firs t Amendment and § 1983 (Count IV and XIII); (ii) failure to train and supervise under § 1983 (Counts VIII and IX); (iii) sexual harassment under § 1983 and New York state and city laws, as to Defendants Coleman, Hoffman and McRorie (Co unts X, XVI and XXI); (iv) retaliation under New York state and city laws, as to Defendants Coleman, Hoffman, McRorie and Edmonds (Counts XIX and XXIV); and (v) hostile work environment under § 1983 and New York state and city laws, as to Defend ants Coleman, Hoffman and McRorie (Counts XIV, XX and XXV). Claims that remain after this decision and Plaintiff's voluntary withdrawal of claims in connection with this motion are: (i) sexual harassment under § 1983 and New York state and city laws, as to Defendants Marchese and Edmonds (Counts X, XVI and XXI); (ii) retaliation under New York state and city laws, as to Defendant Marchese (Counts XIX and XXIV); and (iii) hostile work environment under § 1983 and New York state and city laws, as to Defendants Marchese and Edmonds (Counts XIV, XX and XXV). The Clerk of the Court is directed to close the motion at Docket No. 11. (Signed by Judge Lorna G. Schofield on 1/9/2014) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK, et al.,
13 Civ. 01890 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Before the Court is Defendants’ Motion for Partial Dismissal of the Complaint. On
February 25, 2013, Plaintiff Lisette Pedrosa filed suit in New York State Supreme Court alleging
various forms of employment discrimination against the City of New York and five of its
employees who worked in the 25th Precinct of the Police Department of the City of New York
(“NYPD”). On March 18, 2013, Defendants removed that action to this Court. For the reasons
stated below, Defendants’ motion to dismiss is granted in part and denied in part.
The following facts are taken from Plaintiff’s Complaint and exhibits.
Defendants’ Alleged Misconduct Against Plaintiff
Officer Pedrosa is employed by the NYPD, and is of Puerto Rican descent. In January
2010, she accepted an offer by Defendant Salvatore Marchese, the newly assigned Special
Operations Lieutenant, to work directly for him in a position with steady hours and days off.
Shortly thereafter, Lieutenant Marchese began making unsolicited advances toward Officer
Pedrosa, including texting her sexually explicit photos, asking her about her sexual activities,
pressuring her to meet outside of work and on two occasions demanding and receiving oral sex.
In late March 2010, after Officer Pedrosa asked Lieutenant Marchese to leave her alone,
Lieutenant Marchese became increasingly hostile toward her, burdening her workload with
constantly shifting assignments and closely monitoring her every move at work.
In early May 2010, after Lieutenant Marchese “‘smacked’ [Officer Pedrosa’s] buttocks”
at work, she complained to Defendant Garfield Edmonds about Lieutenant Marchese’s behavior.
Lieutenant Edmonds failed to notify the NYPD’s Office of Equal Employment Opportunity
(“OEEO”), as required by department policy, or Inspector Edward Caban. Sometime thereafter,
in a meeting with Lieutenant Edmonds and Inspector Caban, Lieutenant Marchese expressed his
desire to transfer Officer Pedrosa out of his unit because she “‘was not doing shit.’” Inspector
Caban transferred her out of the unit on or about May 10, 2010. Since the transfer and through
January 2013, Officer Pedrosa has consistently received poor assignments and unfair discipline,
and been precluded from working overtime. On or about May 17, 2010, Officer Pedrosa
reported the misconduct of Lieutenant Marchese and Lieutenant Edmonds to the NYPD’s
Internal Affairs Bureau (“IAB”), which in turn contacted the OEEO.
On or about December 2, 2010, Officer Pedrosa found the lock on her work locker gone
and her police equipment missing. She reported the incident to Defendant Integrity Control
Officer Kevin Coleman, who failed to notify the IAB as required by department policy and then
fabricated a report to cover up his failure. In February and then again in May 2011, to cover up
the theft of Officer Pedrosa’s property under her command and Sergeant Coleman’s failure to
notify, Defendant Nilda Hoffman, Deputy Inspector and Commanding Officer of the 25th
Precinct, knowingly caused false reports to be written alleging that Officer Pedrosa had left her
Frustrated by the NYPD’s failure to take her complaints of sexual harassment seriously,
Officer Pedrosa gave an interview to the New York Daily News. On June 2, 2011, the Daily
News published an article reporting her allegations against Lieutenant Marchese.
In July 2011, the OEEO determined that Officer Pedrosa’s allegations of sexual
harassment against Lieutenant Marchese were substantiated. He was issued a Supervisor’s
Complaint Report for a Schedule ‘B’ Violation, transferred from the 25th Precinct and ordered to
attend a professionalism seminar, which the Complaint characterizes as “a slap on the wrist.”
The OEEO found that Officer Pedrosa’s allegations of retaliation were unsubstantiated.
In December 2011, Officer Pedrosa lodged complaints with the OEEO about retaliation,
unfair discipline and Deputy Inspector Hoffman’s falsification of records. The OEEO failed to
notify the IAB about Officer Pedrosa’s complaint against Deputy Inspector Hoffman as required
by department policy.
In January 2012, Officer Pedrosa responded to a citizen’s complaint, which she classified
as Burglary Second Degree and Grand Larceny Fourth Degree, both index crimes. Defendant
Jessica McRorie asked her to reclassify the complaint as Petit Larceny, a non-index crime, and
when Officer Pedrosa refused, Sergeant McRorie changed the classification without Officer
Pedrosa’s authorization. Officer Pedrosa reported Sergeant McRorie’s behavior to the IAB,
which referred the allegations to the NYPD’s Quality Assurance Division (“QAD”). In April
2012, the QAD interviewed Officer Pedrosa about Sergeant McRorie.
In May 2012, the OEEO determined that Officer Pedrosa’s retaliation claims “did not rise
to the level of employment discrimination.”
In January 2013, Officer Pedrosa reported her W2 stolen at work. The theft was never
reported to the IAB.
NYPD’s Alleged Policy Condoning Misconduct
According to the allegations in the Complaint, the NYPD is aware of its persistent
problem of white male employees committing quid pro quo sexual harassment and otherwise
highly offensive sexual conduct, but has typically responded by refusing to acknowledge their
misconduct, imposing disproportionately light penalties and discrediting the accusers. The
Complaint alleges that the NYPD usually responds to complaints of discrimination by filing false
allegations of misconduct against, and unfairly disciplining, the complainants. The NYPD is
particularly aggressive against those who speak to the media about their allegations.
In 2008, Former Transit Bureau Captain Jeffrey Kilmas, a white male, pleaded guilty to
public lewdness and disorderly conduct after exposing himself in a Queens train station while on
duty. He was penalized 11 vacation days (i.e., suspended without pay for 11 days), but was
allowed to keep his full pension. Captain Kilmas was previously accused of fondling a teenager
on a subway train, but the NYPD closed that case as “unfounded.”
In 2010, the City paid $300,000 to two male sergeants after Former Lieutenant Kieran
Crowe, a white male, was found guilty in an NYPD disciplinary trial of sexually harassing them
and creating a lewd and hostile work environment. Lieutenant Crowe ultimately was forced to
retire but allowed to keep his pension, and was penalized 60 vacation days. The two
complainants against Lieutenant Crowe were labeled homophobic, and had allegations of
misconduct filed against them when they spoke to the New York Daily News.
In 2007, Former Captain Michael DeBellis, a white male, admitted to exposing himself to
a female subordinate at work. He was forced to retire but allowed to keep his pension, and was
penalized 60 vacation days. After the complainant went public with her case in the New York
Daily News, allegations of misconduct were filed against her. The complainant was
subsequently penalized eight vacation days for parking her car in a bus stop.
Based on the foregoing allegations, Officer Pedrosa asserted 25 claims against
Defendants. In her Opposition to the Motion to Dismiss, Plaintiff voluntarily withdrew 13
claims. The claims that remain are as follows: (i) retaliation under the First Amendment, § 1983
and New York state and city laws, as to all Defendants (Counts IV, XIII, XIX and XXIV); (ii)
failure to train and supervise under § 1983, as to Defendant City (Counts VIII and IX); (iii)
sexual harassment under § 1983 and New York state and city laws, as to all Defendants (Counts
X, XVI and XXI); and (iv) hostile work environment under § 1983 and New York state and city
laws, as to all Defendants (Counts XIV, XX and XXV).
Defendants seek to dismiss the following: (i) all claims against all individual Defendants
other than Lieutenant Marchese; (ii) the failure to train and supervise claims under § 1983
against the City (Counts VIII and IX); and (iii) the First Amendment retaliation claim against all
Defendants (Count IV).
Standard of Review
On a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and
draws all reasonable inferences in favor of the non-moving party. See Famous Horse Inc. v. 5th
Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). To withstand dismissal, a pleading “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. While “‘detailed factual allegations’” are not
necessary, the pleading must be supported by more than mere “‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action.’” Id. (quoting Twombly, 550 U.S. at
555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Rule 8 of the
Federal Rules of Civil Procedure “requires factual allegations that are sufficient to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Anderson
News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (alteration in original)
(quoting Twombly, 550 U.S. at 555), cert. denied, 133 S. Ct. 846 (2013). Moreover, “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 shown – that the pleader is entitled to relief.” Iqbal,
556 U.S. at 679 (internal quotation marks omitted); see also Fed. R. Civ. P. 8(a)(2).
Plaintiff points out that the Second Circuit has called “[t]he pleading standard for
employment discrimination . . . somewhat of an open question in our circuit,” noting the
potential conflict between the standard under Twombly and the McDonnell Douglas standard, the
latter of which, if applicable, would require plaintiffs to plead a prima facie case. Hedges v.
Town of Madison, 456 F. App’x 22, 23 (2d Cir. 2012). In Swierkiewicz v. Sorema N. A., the
Supreme Court held that the McDonnell Douglas standard is “an evidentiary standard” to be
applied in the summary judgment context, and “not a pleading requirement.” 534 U.S. 506, 510
(2002). Although the Swierkiewicz Court relied for its holding on the more lenient Conley
pleading standard that has since been displaced by Twombly and Iqbal, the Twombly Court noted
that its holding “does not run counter to Swierkiewicz . . . .” 550 U.S. at 547. District courts in
this Circuit have continued to cite Swierkiewicz for its rejection of the heightened McDonnell
Douglas standard at the pleading stage. See,e.g., Thai v. Cayre Grp., Ltd., 726 F. Supp. 2d 323,
329 (S.D.N.Y. 2010); Fowler v. Scores Holding Co., Inc., 677 F. Supp. 2d 673, 679 (S.D.N.Y.
Claims Against Other Individual Defendants
Defendants move to dismiss the employment discrimination claims against the individual
Defendants other than Lieutenant Marchese. They argue that that these other Defendants are not
alleged to have acted in a discriminatory way or with any discriminatory purpose, and therefore
cannot be liable under federal, state or city laws.
The standards for individual liability under the applicable federal, state and city laws vary
somewhat. Under 42 U.S.C. § 1983, “[e]very person” who under the color of state law deprives
another of their constitutional or other rights under federal law is liable. To hold an individual
defendant liable under § 1983, a plaintiff must allege his or her “personal involvement in the
claimed violation . . . .” Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004); see also
Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001). Personal involvement “includes not only
direct participation in the alleged violation but also gross negligence in the supervision of
subordinates who committed the wrongful acts and failure to take action upon receiving
information that constitutional violations are occurring.” Patterson, 375 F.3d at 229.
The New York State Human Rights Law (“NYSHRL”) prohibits specified acts of
discrimination by an employer. N.Y. Exec. Law § 296(1). An individual may be considered an
“employer” if he or she has “an ownership interest in the relevant organization or the ‘power to
do more than carry out personnel decisions made by others.’” Townsend v. Benjamin
Enterprises, Inc., 679 F.3d 41, 57 (2d Cir. 2012) (citing Patrowich v. Chem. Bank, 473 N.E.2d
11, 12 (N.Y. 1984)). The NYSHRL also makes it unlawful for any person to retaliate or to “aid,
abet, incite, compel or coerce” unlawful discrimination or for any person to retaliate against
someone who has opposed or filed a complaint of discrimination. N.Y. Exec. Law § 296(6)
(aiding and abetting); id. § 296(7) (retaliation).
The New York City Human Rights Law (“NYCHRL”) creates direct liability for
employment discrimination not only against the employer, but also “an employee or agent
thereof.” N.Y.C. Admin. Code § 8-107(1)(a). However, this apparent broadening of liability as
compared with the NYSHRL is likely not significant as applied, since both the state and city
human rights laws create individual liability for aiding and abetting and for retaliation. See
N.Y.C. Admin. Code § 8-107(6) (aiding and abetting liability for “any person”); id. § 8-107(7)
(liability for retaliation by “any person engaged in any activity to which this chapter applies”);
see also Feingold v. New York, 366 F.3d 138, 157-59 (2d Cir. 2004) (holding that individuals
may be held liable for aiding and abetting under the NYSHRL and the NYCHRL if they
participate in discriminatory conduct); Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995),
abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
Defendants seek to dismiss the sexual harassment claims against the individual
Defendants other than Lieutenant Marchese. For the reasons discussed below, the § 1983,
NYSHRL and NYCHRL sexual harassment claims (Counts X, XVI and XXI) are dismissed
against Defendants Coleman, Hoffman and McRorie, but not Defendant Edmonds.
§ 1983 (Count X)
Sexual harassment that rises to the level of gender discrimination is actionable under §
1983 as violative of the Fourteenth Amendment right to equal protection. See Annis v. Cnty. of
Westchester, 36 F.3d 251, 254 (2d Cir. 1994) (finding the alleged sexual harassment to be
“tantamount to sex discrimination” and therefore actionable as a § 1983 claim); see also
Gierlinger v. N.Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994) (“[I]n some circumstances a § 1983
claim may be properly grounded on a violation of the Equal Protection Clause of the Fourteenth
Amendment based on sexual harassment in the workplace.”). To make out a § 1983 gender
discrimination claim, the plaintiff must show that she “suffered purposeful or intentional
discrimination on the basis of gender.” Back v. Hastings on Hudson Union Free Sch. Dist., 365
F.3d 107, 118 (2d Cir. 2004).
Plaintiff has not pleaded that Defendants Coleman, Hoffman and McRorie were
personally involved in the acts from which the sexual harassment claim arises. The alleged
misconduct of Sergeant Coleman and Deputy Inspector Hoffman – the filing of false reports –
arose out of an alleged theft from Plaintiff’s work locker that occurred six months after
Lieutenant Marchese’s alleged harassment of Plaintiff ended. The alleged misconduct of
Sergeant McRorie – reclassifying a citizen’s complaint without authorization – happened more
than a year thereafter. Plaintiff does not allege that these Defendants participated in or furthered
the harassment, that they were motivated by discriminatory intent, or even that they knew about
the sexual harassment. To the extent the Complaint adds any context to these events, it suggests
that Sergeant Coleman and Deputy Inspector Hoffman caused false reports to be filed in order to
cover up their failures to prevent and report the theft, not to further or otherwise participate in
any sexual harassment of Plaintiff. Sergeant McRorie’s alleged misconduct is pleaded in a
vacuum, with no explanation as to why she reclassified the citizen’s complaint or even why her
act was improper or adverse to Plaintiff.
As for Lieutenant Edmonds, Plaintiff alleges that she complained to him “about
[Lieutenant] Marchese’s conduct” and that Lieutenant Edmonds did not report her complaint “as
required by Department policy.” In Patterson, the Second Circuit noted three types of personal
involvement sufficient for individual liability under § 1983: “direct participation,” “gross
negligence in the supervision of subordinates who committed the wrongful acts,” and “failure to
take action upon receiving information that constitutional violations are occurring.” 375 F.3d at
229. Although the court there ultimately based its ruling on each individual defendant’s direct
participation in the plaintiff’s harassment, rendering the enumeration of the other two types of
personal involvement dicta, that language nevertheless tends to support a finding that Lieutenant
Edmonds’s “failure to take action” constitutes his personal involvement in Lieutenant
Marchese’s alleged sexual harassment of Plaintiff.
Regardless, the Court refrains from ruling at this time on Lieutenant Edmonds’s personal
involvement for purposes of § 1983 for two reasons. First, as will be further discussed below,
the Court is denying Defendants’ motion to dismiss Plaintiff’s sexual harassment claims under
New York state and city laws as to Lieutenant Edmonds, because both the NYSHRL and the
NYCHRL explicitly provide for aiding and abetting liability. As such, ruling now on Lieutenant
Edmonds’s personal involvement for purposes of § 1983 one way or another would not affect the
scope of discovery. Moreover, the Court could benefit from further briefing, which the parties
could submit at the summary judgment stage should the issue still be relevant.
NYSHRL and NYCHRL (Counts XVI & XXI)
Sexual harassment claims under the NYSHRL, like all NYSHRL claims, are governed by
the same standards as those under Title VII of the Civil Rights Act of 1964. See Rojas v. Roman
Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011) (“‘[C]laims brought under
New York State’s Human Rights Law are analytically identical to claims brought under Title
VII.’” (quoting Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997))), cert. denied, 132 S. Ct.
1744 (2012). Courts have analyzed sexual harassment claims under Title VII and the NYSHRL
under two theories: hostile work environment – addressed in its own section below – and quid
pro quo. Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006). “To state a
quid pro quo claim, [a plaintiff] must show a ‘tangible employment action,’ i.e., that an ‘explicit .
. . alteration[ ] in the terms or conditions of employment’ resulted from her refusal to submit to
[the defendant supervisor’s] sexual advances.” Id. at 604 (quoting Mormol v. Costco Wholesale
Corp., 364 F.3d 54, 57 (2d Cir. 2004)).
Under the NYCHRL, a plaintiff need not allege a materially adverse employment action
as required by the NYSHRL. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d
102, 114 (2d Cir. 2013). The plaintiff must plead only that she was “‘treated less well than other
employees because of her gender.’” Id. at 110 (quoting Williams v. New York City Hous. Auth.,
872 N.Y.S.2d 27, 39 (N.Y. App. Div. 2009)).
As discussed above, the Complaint does not connect Sergeant Coleman, Deputy
Inspector Hoffman or Sergeant McRorie to the sexual harassment claim. With regard to
Lieutenant Edmonds, the Complaint alleges that he failed to report Plaintiff’s complaint of
Lieutenant Marchese’s sexual harassment as required, and thus sufficiently alleges aiding and
abetting Lieutenant Marchese’s sexual harassment.
Accordingly, the NYSHRL and NYCHRL claims of sexual harassment based on a quid
pro quo theory are dismissed against Defendants Coleman, Hoffman and McRorie but not
Hostile Work Environment
Defendants move to dismiss the hostile work environment claims against the individual
Defendants other than Lieutenant Marchese. For the reasons discussed below, the § 1983,
NYSHRL and NYCHRL hostile work environment claims (Counts XIV, XX and XXV) are
dismissed against Defendants Coleman, Hoffman and McRorie, but not Defendant Edmonds.
§ 1983 and NYSHRL (Counts XIV & XX)
The elements of a hostile work environment claim are the same under § 1983 and the
NYSHRL. See Patterson, 375 F.3d at 225; see also Smith v. Town of Hempstead Dep’t of
Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011) (“The standard for
showing a hostile work environment under Title VII, . . . Section 1983, and the New York State
Human Rights Law is essentially the same.”); Bermudez v. City of New York, 783 F. Supp. 2d
560, 578 (S.D.N.Y. 2011). To state a hostile work environment claim, a plaintiff must:
[P]lead facts that would tend to show that the complained of conduct: (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
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 69192 (2d Cir. 2001)).
Like her sexual harassment claims, Plaintiff’s hostile work environment claims under §
1983 and the NYSHRL fail as to Defendants Coleman, Hoffman and McRorie. To the extent
that Sergeant Coleman, Deputy Inspector Hoffman and Sergeant McRorie helped create a hostile
work environment for Plaintiff through their misconduct, the Complaint fails to allege that they
did so because of Plaintiff’s gender.
Just as Lieutenant Edmonds’s failure to report Plaintiff’s complaint serves as a sufficient
basis for his aiding and abetting liability under the NYSHRL sexual harassment claim, it also
serves as a sufficient basis for his aiding and abetting liability under the NYSHRL hostile work
environment claim. See N.Y. Exec. Law § 296(6). His alleged failure to report is also likely
actionable under § 1983 as a “failure to take action upon receiving information that constitutional
violations are occurring,” see Patterson, 375 F.3d at 229, but for the same reasons discussed
above, the Court refrains from ruling on the § 1983 issue with respect to Lieutenant Edmonds at
NYCHRL (Count XXV)
A hostile work environment claim under the NYCHRL, unlike that under its state
counterpart, does not require the complained-of conduct to be “severe and pervasive.” Mihalik,
715 F.3d at 114. “Instead, a focus on unequal treatment based on gender . . . is in fact the
approach that is most faithful to the uniquely broad and remedial purposes of the local statute.”
Id. (internal quotation marks omitted).
That distinction, however, does not result in a different outcome for Plaintiff’s hostile
work environment claim under the NYCHRL. Defendants do not challenge the NYCHRL
hostile work environment claim against Lieutenant Marchese. That statute, like its state
counterpart, creates individual aiding and abetting liability for Lieutenant Edmonds, who failed
to take action in spite of his knowledge. Similarly, for the same reasons that the Complaint fails
to plead a NYSHRL hostile work environment claim against Defendants Coleman, Hoffman and
McRorie – i.e., that it does not allege any of them acted because of Plaintiff’s gender – it also
fails to plead a NYCHRL hostile work environment claim.
As such, the NYCHRL hostile work environment claim is dismissed as to Defendants
Coleman, Hoffman and McRorie but not as to Defendant Edmonds.
Defendants move to dismiss the retaliation claims against the individual Defendants other
than Lieutenant Marchese. For the reasons discussed below, the § 1983, NYSHRL and
NYCHRL retaliation claims (Counts XIII, XIX and XXIV) are dismissed against Defendants
Coleman, Hoffman, McRorie and Edmonds.
§ 1983 (Count XIII)
Plaintiff’s § 1983 claim for retaliation is dismissed. Retaliation claims under § 1983 are
commonly brought as First Amendment free speech claims, but are not actionable as Fourteenth
Amendment equal protection claims. Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1995) (citing
Ratliff v. DeKalb Cnty., 62 F.3d 338, 340-41 (11th Cir. 1995); Gray v. Lacke, 885 F.2d 399, 414
(7th Cir. 1989)). The Complaint does not specify the federal right violated by the alleged
retaliation. To the extent the claim is based on the Fourteenth Amendment, it is dismissed for
failure to state a claim. To the extent it is based on the First Amendment, it is identical to
Plaintiff’s First Amendment claim in Count IV, and like that claim is dismissed for lack of merit,
as discussed below.
NYSHRL (Count XIX)
Plaintiff’s NYSHRL retaliation claim against Defendants Coleman, Hoffman, McRorie
and Edmonds is dismissed because the Complaint contains no allegations that these Defendants’
allegedly wrongful acts were retaliatory.
The NYSHRL makes it unlawful “for any person engaged in any [prohibited
discrimination] to retaliate or discriminate against any person because he or she has opposed any
practices forbidden under this article or because he or she has filed a complaint, testified or
assisted in any proceeding under this article.” N.Y. Exec. Law. § 296(7). To state a retaliation
claim under the NYSHRL, a plaintiff must plead the following elements: “(1) [the plaintiff]
participated in a protected activity known to the defendant; (2) the defendant took an
employment action disadvantaging [the plaintiff]; and (3) there exists a causal connection
between the protected activity and the adverse action.” See Patane, 508 F.3d at 115 (setting
forth Title VII retaliation claim pleading requirements); Rojas, 660 F.3d at 107 n.10 (holding that
NYSHRL and Title VII claims are governed by same standards); see also McMenemy v. City of
Rochester, 241 F.3d 279, 283 n.1 (2d Cir. 2001) (holding same specifically with respect to
retaliation claims under both the NYSHRL and Title VII).
Defendants do not challenge the sufficiency of the retaliation claim against Lieutenant
Marchese. The Complaint contains many allegations that Plaintiff engaged in protected activity
by opposing and filing various complaints about alleged discriminatory acts: (i) In March 2010,
Plaintiff terminated the out-of-work meetings and sexual relations with Lieutenant Marchese
and, on or about March 20, 2010, told him to leave her alone; (ii) on or about May 8, 2010, she
complained to Lieutenant Edmonds about Lieutenant Marchese’s misconduct; (iii) on or about
May 17, 2010, Plaintiff reported the misconduct of Lieutenant Marchese and Lieutenant
Edmonds to the IAB; (iv) on or about June 2, 2011, she gave an interview to the New York Daily
News, which published an article about her allegations of sexual harassment by Lieutenant
Marchese; (v) on or about December 7, 2011, Plaintiff complained to the OEEO about Deputy
Inspector Hoffman’s misconduct; (vi) sometime after January 22, 2012, she complained to the
IAB about Sergeant McRorie’s misconduct; and (vii) on or about April 27, 2012, she was
interviewed by the QAD about Sergeant McRorie’s misconduct.
However, the Complaint contains no allegation that Sergeant Coleman or Deputy
Inspector Hoffman knew of any of this protected activity at the time they committed the acts she
alleges were retaliatory. Although one might assume that they learned of the June 2, 2011, Daily
News article on or shortly after that date, the allegedly wrongful acts of Defendants Coleman and
Hoffman predated the article.
Sergeant McRorie’s reclassification of a citizen’s complaint allegedly occurred after the
article, but Plaintiff does not allege how this was an employment action that disadvantaged
Plaintiff, or that there was any causal connection between Plaintiff’s statements to the media and
Sergeant McRorie’s actions.
Plaintiff alleges that she “continued to receive poor assignments, unfair discipline and
[was] precluded from working overtime as the other police officers” after the article, but does not
attribute these actions to any particular Defendant or allege that they were caused by anyone who
knew of her complaints.
The Complaint does allege that Lieutenant Edmonds knew about Plaintiff’s rejection of
Lieutenant Marchese when Lieutenant Edmonds failed to report Plaintiff’s complaint to the
OEEO. However, these allegations are insufficient to support a retaliation claim because the
Complaint does not allege the requisite causal connection. Specifically, it does not allege that
Lieutenant Edmonds failed to report Plaintiff’s complaint in order to retaliate, nor does it allege
any facts from which to infer that Lieutenant Edmonds had cause to retaliate against Plaintiff for
rejecting Lieutenant Marchese. It is therefore unnecessary to reach the question of whether
Plaintiff’s rejection of Lieutenant Marchese’s alleged sexual advances could be “protected
activity” capable of giving rise to a retaliation claim as a matter of law.1
For these reasons, Plaintiff’s NYSHRL retaliation claim is dismissed as to Defendants
Coleman, Hoffman, McRorie and Edmonds.
NYCHRL (Count XXIV)
A retaliation claim under the NYCHRL requires that: (i) the plaintiff “took an action
opposing her employer’s discrimination,” and (ii) “as a result, the employer engaged in conduct
that was reasonably likely to deter a person from engaging in such action . . . .” Mihalik, 715
F.3d at 112 (citation omitted); see N.Y.C. Admin. Code § 8-107(7). These elements are
construed more liberally under the NYCHRL than under its state counterpart, and the plaintiff
can oppose discrimination merely by communicating her disapproval to the defendant. Id.
The Second Circuit has yet to settle this question. See Fitzgerald v. Henderson, 251 F.3d 345,
366 (2d Cir. 2001). Courts in this Circuit and elsewhere are split on the question of whether
rejecting a harasser’s sexual advances constitutes protected activity. Compare, e.g., Del Castillo
v. Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y. 1996) (“[E]ven the broadest
interpretation of a retaliation claim cannot encompass instances where the alleged ‘protected
activity’ consists simply of declining a harasser’s sexual advances, [or] every harassment claim
would automatically state a retaliation claim as well.”); and LeMaire v. La. Dep’t of Transp. &
Dev., 480 F.3d 383, 389 (5th Cir. 2007) (holding that the rejection of sexual advances is not a
protected activity), with Laurin v. Pokoik, No. 02 Civ. 1938, 2005 WL 911429, at *4 (S.D.N.Y.
Apr. 18, 2005) (holding that the rejection of sexual advances is protected activity where plaintiff
had few other avenues of complaining); and Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th
Cir. 2000) (holding that the rejection of sexual advances is “the most basic form of protected
(citing Albunio v. City of New York, 947 N.E.2d 135, 138 (N.Y. 2011)). Nevertheless, even
under the NYCHRL, there must be a causal connection between the plaintiff’s opposition and the
defendant’s conduct. See Weber v. City of New York, No. 11 Civ. 5083, 2013 WL 5416868, at
*30 (E.D.N.Y. Sept. 29, 2013); Tse v. New York Univ., No. 10 Civ. 7207, 2013 WL 5288848, at
*17 n.17 (S.D.N.Y. Sept. 19, 2013).
Although the NYCHRL provides a broader basis for liability than the NYSHRL, Plaintiff
has failed to state a retaliation claim under the city law against Defendants Coleman, Hoffman,
McRorie and Edmonds for the same reason that she has failed to do so under the NYSHRL. She
has not alleged that any wrongful acts were retaliatory. Consequently, Plaintiff’s NYCHRL
retaliation claim is dismissed as to those Defendants.
§ 1983 Failure to Train and Supervise Claims Against City (Counts VIII & IX)
Plaintiff asserts that the City is liable for her injury because it failed to train and supervise
its employees to such an extent that the failure amounted to deliberate indifference to the
constitutional rights of people like Plaintiff. The Complaint fails to plead these claims.
While a city may not be sued under § 1983 “for an injury inflicted solely by its
employees or agents,” it can be liable if the infliction on plaintiff of a constitutional injury was
the result of a municipal “policy or custom.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694
(1978). A city “policy or custom” exists “where a policymaking official exhibits deliberate
indifference to constitutional deprivations caused by subordinates, such that the official’s
inaction constitutes a ‘deliberate choice’ . . . .” Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 126 (2d Cir. 2004). A city’s failure to train or supervise constitutes “deliberate
indifference” when three requirements are met: (1) “a policymaker knows to a moral certainty
that her employees will confront a given situation”; (2) “the situation either presents the
employee with a difficult choice of the sort that training or supervision will make less difficult or
that there is a history of employees mishandling the situation”; and (3) “the wrong choice by the
city employee will frequently cause the deprivation of a citizen’s constitutional rights.” Jenkins
v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007) (internal quotation marks omitted) (citing
Walker v. City of New York, 974 F.2d 293, 297-8 (2d Cir. 1992)). “A pattern of similar
constitutional violations by untrained employees is ordinarily necessary to demonstrate
deliberate indifference for purposes of failure to train.” Connick v. Thompson, 131 S. Ct. 1350,
1360 (2011) (citation and internal quotation marks omitted); see Chamberlain v. City of White
Plains, No. 12 Civ. 5142, 2013 WL 6477334, at *16-18 (S.D.N.Y. Dec. 10, 2013) (citing
Connick to rule on a motion to dismiss a failure to train claim).
Here, of the three prior incidents described in the Complaint, only two involve officers
who engaged in sexual harassment toward subordinates. In neither case is the Court able to infer
that the disciplinary actions – penalties of 60 vacation days and ultimately forced retirements in
both – were unconstitutionally insufficient, and the Complaint’s conclusory characterization of
these penalties as “slap[s] on the wrist” does not change that fact. Moreover, the four incidents
of sexual harassment, including Plaintiff’s own alleged incident, occurred in four different
offices across three boroughs. In light of the sparseness and dissimilarities of the relevant
incidents alleged, the Court cannot infer a “pattern of similar constitutional violations” from the
Complaint, let alone one that more training or supervision could have alleviated. Walker, 974
F.2d at 297; see, e.g., Collins v. City of New York, 923 F. Supp. 2d 462, 479 (E.D.N.Y. 2013)
(holding that two incidents from separate units were insufficient to state a failure to train claim).
Although the Supreme Court in Connick left open the possibility that a single incident could
support a failure to train claim where “the unconstitutional consequences of failing to train [are]
so patently obvious that a city should be liable under § 1983 without proof of a pre-existing
pattern of violations,” 131 S. Ct. at 1361, this theory is inapplicable here. First, there is some
doubt as to its continued vitality. Chamberlain, 2013 WL 6477334, at *17. But even if the
single-incident theory were applicable, the constitutional consequences of the allegedly
inadequate discipline against Lieutenant Marchese – the issuance of a Complaint Report, an
order to attend a remedial seminar and a transfer out of the 25th Precinct – cannot be said to be
“so patently obvious” as to allow Plaintiff to bypass the requisite showing of a pattern.
Because Plaintiff has failed to allege the deliberate indifference necessary for municipal
liability under § 1983, Plaintiff’s failure to train and supervise claims against the City are
Plaintiff’s First Amendment Retaliation Claim
Finally, Plaintiff claims that Defendants violated her First Amendment right to free
speech by retaliating against her when she spoke out about her treatment. This claim is also
“Whether public employee speech is protected from retaliation under the First
Amendment entails two inquiries: (1) ‘whether the employee spoke as a citizen on a matter of
public concern’ and, if so, (2) ‘whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the general public.’”
Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Garcetti v. Ceballos, 547
U.S. 410, 418 (2006)). The first inquiry is further subdivided into two questions: (1) whether the
employee spoke “as a citizen” or “pursuant to [her] official duties,” and (2) whether the speech
was on “a matter of public concern.” Garcetti, 547 U.S. at 421-23. For purposes of this motion,
Defendants argue only that Plaintiff did not speak on “a matter of public concern.”
“‘Whether an employee’s speech addresses a matter of public concern is a question of
law for the court to decide, taking into account the content, form, and context of a given
statement as revealed by the whole record.’” Ruotolo, 514 F.3d at 189 (quoting Lewis v. Cowen,
165 F.3d 154, 163 (2d Cir. 1999)). “The heart of the matter is whether the employee’s speech
was ‘calculated to redress personal grievances or whether it had a broader public purpose.’” Id.
(quoting Lewis, 165 F.3d at 163). “A generalized public interest in the fair or proper treatment of
public employees is not enough.” Id. at 190. Where the plaintiff’s complaints “concern
essentially personal grievances and the relief [the plaintiff] seeks is for himself alone,” they are
not considered matters of public concern warranting First Amendment protection. Id. However,
“[t]he fact that a statement was made to the employer in private is not determinative of whether
its subject was a matter of public concern.” Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011).
Reviewing the record as a whole, the Court finds that Plaintiff’s complaints concerned
essentially personal grievances and are of insufficient public concern to warrant First
Amendment protection. According to the Complaint, Plaintiff made four internal complaints,
participated in an internal interview, and “frustrated that her complaints of sexual harassment and
corruption were not being taken seriously, as a citizen she decided to go public and granted an
interview to the New York Daily News.” The alleged facts are comparable to those in
Saulpaugh v. Monroe Cmty. Hosp., in which the Second Circuit observed, “[T]here is no
indication that the plaintiff wanted to debate issues of sex discrimination, that her suit sought
relief against pervasive or systemic misconduct by a public agency or public officials, or that her
suit was part of an overall effort . . . to correct allegedly unlawful practices or bring them to
public attention.” 4 F.3d 134, 143 (2d Cir. 1993) (internal quotation marks and citations
omitted). In that case, the plaintiff claimed that she had been sexually harassed by her supervisor
under the threat of termination, retaliated against when she reported his behavior, and eventually
terminated. Id. at 138-41. The Second Circuit observed that “[h]ad [the plaintiff’s] complaints
to her supervisors implicated system-wide discrimination they would have unquestionably
involved a matter of public concern. . . . Here, however, there has been no violation of the First
Amendment, because [the plaintiff’s] complaints were personal in nature and generally related to
her own situation.” Id. at 143. On that basis, the Second Circuit found that the plaintiff’s speech
failed the “public concern” threshold. Likewise here, each of the complaints lodged by Plaintiff
– to Lieutenant Edmonds, the OEEO, the IAB, the QAD and the New York Daily News –
concerned only Plaintiff’s own situation and did not hint at broader problems. To find Plaintiff’s
First Amendment claim valid on the alleged facts alone would constitute an impermissible
“‘constitutionaliz[ation of] the employee grievance.’” Garcetti, 547 U.S. at 420 (quoting
Connick v. Myers, 461 U.S. 138, 154 (1983)).
For the foregoing reasons, Defendants’ Motion for Partial Dismissal of the Complaint is
DENIED as to Plaintiff’s claims of sexual harassment and hostile work environment against
Defendant Edmonds and GRANTED in all other respects.
For ease of reference, the claims dismissed by this decision are: (i) retaliation under the
First Amendment and § 1983 (Count IV and XIII); (ii) failure to train and supervise under §
1983 (Counts VIII and IX); (iii) sexual harassment under § 1983 and New York state and city
laws, as to Defendants Coleman, Hoffman and McRorie (Counts X, XVI and XXI); (iv)
retaliation under New York state and city laws, as to Defendants Coleman, Hoffman, McRorie
and Edmonds (Counts XIX and XXIV); and (v) hostile work environment under § 1983 and New
York state and city laws, as to Defendants Coleman, Hoffman and McRorie (Counts XIV, XX
Claims that remain after this decision and Plaintiff’s voluntary withdrawal of claims in
connection with this motion are: (i) sexual harassment under § 1983 and New York state and city
laws, as to Defendants Marchese and Edmonds (Counts X, XVI and XXI); (ii) retaliation under
New York state and city laws, as to Defendant Marchese (Counts XIX and XXIV); and (iii)
hostile work environment under § 1983 and New York state and city laws, as to Defendants
Marchese and Edmonds (Counts XIV, XX and XXV).
The Clerk of the Court is directed to close the motion at Docket No. 11.
Dated: January 9, 2014
New York, New York
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