Doran et al v. The State Of New York et al
OPINION AND ORDER: re: 282 MOTION to Dismiss the Third Amended and Consolidated Complaint (Partial Motion) filed by Anna Coschignano, New York State Department of Health Office of the Medicaid Inspector General, Dan Coyne, Christopher Mulhall, Sean Mahoney, Russell S Rizzo, Robert Byrnes, Erin Ives, Gabrielle Ares, Edward J. Meyer, Dennis Rosen, Edward Michael Dressler. The following claims against the Moving Defendants in their individual capacities survive defendants' motion t o dismiss: Baez's claims for retaliation under section 1983, the NYSHRL, and the NYCHRL against Byrnes, Mahoney and Dressler based on her receiving negative performance evaluations; and Doran and Linn's claims for retaliation under section 1983, the NYSHRL, and the NYCHRL against Mulhall based on the Manager of Medicaid Investigations position. All of Plaintiffs' other Doran II retaliation claims under section 1983, the NYSHRL, and the NYCHRL against Dressler, Byrnes, Mahoney and Mulhall are dismissed. All of Plaintiffs' Doran II retaliation claims under section 1983, the NYSHRL, and the NYCHRL against Meyer are dismissed. Plaintiffs' retaliation claims under section 1983, the NYSHRL, and the NYCHRL based on the 18 0-Day Policy are dismissed. Plaintiffs retaliation claims under section 1983, the NYSHRL, and the NYCHRL based on the 2019 Management Specialist 3 Position survive as asserted against individual defendants other than the MovingDefendants. The defend ants' motion to dismiss is GRANTED in part and DENIED in part. The Clerk is directed to terminate the motion (Doc 282). SO ORDERED., Sean Mahoney, Edward J. Meyer, Christopher Mulhall, Robert Byrnes and Edward Michael Dressler terminated. (Signed by Judge P. Kevin Castel on 4/26/2021) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT DORAN, MARIA BAEZ,
ALEXANDER SHAPOROV, and
ERIN IVES, DENNIS ROSEN, DAN COYNE,
ANNA COSCHIGNANO, ROBERT BYRNES,
RUSSELL S. RIZZO, CHRISTOPHER
MULHALL, EDWARD MICHAEL DRESSLER,
SEAN MAHONEY, GABRIELLE ARES, and
JOHN and JANE DOES 1-5
(said names being fictitious, the persons intended
being those who aided and abetted the unlawful
conduct of the named Defendants),1
Plaintiffs Robert Doran, Maria Baez, Alexander Shaporov, and Bernard Linn are
employees of the New York State Department of Health, Office of the Medicaid Inspector
General (“OMIG”). On September 11, 2015, plaintiffs filed Doran, et al., v. N.Y.S. Office of the
Medicaid Inspector General, et al., 15-cv-7217 (PKC) (“Doran I”), alleging OMIG and nine
individual defendants discriminated against them between 2012 to 2015. The Court granted in
part and denied in part defendants’ motion to dismiss and motion for summary judgment,
substantially reducing the number of remaining claims and defendants in that action. On May
15, 2020, plaintiffs filed Doran, et al., v. N.Y.S. Office of the Medicaid Inspector General, et al.,
20-cv-3754 (PKC) (“Doran II”) in which they allege that a mostly new group of individual
On consent of the parties (Doc 283 at 30–31; Doc 284 at 34), the Clerk is directed to amend the caption to reflect
defendants who remain in the action.
defendants retaliated against them between 2015 to 2020 for litigating Doran I. The Court
subsequently consolidated Doran I and Doran II for all purposes and ordered plaintiffs to submit
a consolidated complaint. (Doc 277). The Third Amended & Consolidated Complaint (“TAC”)
brings claims against eleven individual defendants, five of whom were named in or remain from
Doran I. (Doc 278).
Defendants move to partially dismiss the TAC pursuant to Rule 12(b)(6), Fed. R.
Civ. P. Defendants primarily argue that the Doran II claims against five of the individual
defendants should be dismissed because these defendants lacked personal involvement in the
alleged discriminatory conduct and there is no causal connection between plaintiffs’ protected
activity and the retaliatory conduct. They further urge that certain conduct alleged in the TAC
fails to state a retaliation claim under federal, New York state and New York City law.
The allegations in Doran I are well described in this Court’s Memorandum and
Order of March 2, 2017 (Doc 92 (“MTD Opinion”)) and in its Opinion and Order of September
27, 2019 (Doc 202 (“Summary Judgment Opinion”)). The Court assumes familiarity with those
decisions. The Court will briefly review the claims in Doran I before turning to the allegations in
The Doran I Claims.
On September 11, 2015, plaintiffs filed Doran I asserting claims against OMIG
and nine individual defendants. In that action, plaintiffs alleged that defendants discriminated
against them based on race, sex, national origin, age and Jewish ancestry; retailed against them
for complaining about such discrimination; and created a hostile work environment. Many of
plaintiffs’ claims revolved around appointments, hiring and promotions decisions made during
defendant Anna Coschignano’s tenure as Deputy Medicaid Inspector General (“DMIG”) from
March 2012 to December 2015. The remaining defendants from Doran I are Dennis Rosen (in
his official capacity), Coschignano, Dan Coyne, Russell Rizzo and Robert Byrnes. There are
seven surviving claims in Doran I brought under the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621 et seq. (“ADEA”), the Civil Rights Act of 1871, 42 U.S.C. § 1983; N.Y.
Exec. L. § 290 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y. City
Admin. Code § 8-101 et seq. (“NYCHRL”). (See generally TAC ¶¶ 531–54).
OMIG is a New York State agency with approximately 400 employees that
investigates fraud and other abuse in the Medicaid program. (TAC ¶¶ 59–60). Plaintiffs are
OMIG employees that are stationed in its New York City office. (TAC ¶ 17). They work as
Medicaid Investigators and Management Specialists within OMIG’s Division of Medicaid
Investigations (“DMI”), performing and supervising Medicaid fraud investigations. (TAC ¶¶
18–19). The Court has previously summarized OMIG’s organizational structure:
Medicaid Investigators range from Levels 1-5, with Level 1 being the
lowest position, Level 5 being a director level position, and the levels in
between progressively increasing in the amount of supervisory
responsibility they entail and the complexity of the cases to which they are
assigned. Management Specialists review Medicaid participant
(MTD Opinion at 2 (internal citations omitted)); see also TAC ¶¶ 23–28). After Doran I was filed,
the titles of the Medicaid Investigator 1 and Medicaid Investigator 2 positions were changed to
Investigative Specialist 1 with pay grade levels based on a civil service scale. (TAC ¶ 37 n.1).
Plaintiff Robert Doran is a 63 year old white-Caucasian man of non-Italian
ancestry. (TAC ¶ 30). He is currently a Level 2 Medicaid Investigator (MI-2) and has held that
position for over ten years. (TAC ¶ 37).
Plaintiff Maria Baez is a 42 year old Hispanic woman. (TAC ¶ 39). She has been
continuously employed by OMIG as an MI-2 investigator since August 2008. (TAC ¶¶ 45–46).
Plaintiff Alexander Shaporov is a white-Caucasian man of Russian ancestry who
was born in Russia and immigrated to the U.S. when he was 13 years old. (TAC ¶¶ 47–49).
Shaporov has been employed at OMIG since February 2009 and is currently an MI-2
investigator. (TAC ¶¶ 51–52).
Plaintiff Bernard Linn a 68 year old white-Caucasian man of Jewish heritage and
ancestry. (TAC ¶ 54). Linn has held the position of Level 2 Management Specialist (MS-2)
since 2006. (TAC ¶ 57).
Except for arguing that certain of the alleged retaliatory conduct does not
constitute an adverse employment action, the allegations against Rosen, Erin Ives, Coschignano,
Coyne, Rizzo and Gabrielle Ares are not contested on defendants’ motion to dismiss.2
Defendants urge that the TAC fails to state retaliation claims against five of the individual
defendants: Robert Byrnes, Christopher Mulhall, Edward Michael Dressler, Sean Mahoney and
Edward Meyer (the “Moving Defendants”). All individual defendants except for defendant Ives
are sued in their individual capacities. (TAC ¶¶ 61, 72, 75, 81, 87, 98, 101, 105, 109).
Defendant Robert Byrnes is a white-Caucasian man. (TAC ¶ 73). During the
relevant time period Byrnes was a MI-4, then a MI-5, and served as the Assistant Medicaid
Investigator in Charge for the New York City office. (TAC ¶ 74). Byrnes was also named as a
defendant in Doran I.
All individual defendants move to dismiss certain retaliation claims related to OMIG’s 180-Day Policy and the
hiring process for the MS-3 position but their arguments do not turn on the individualized conduct of each
Defendant Christopher Mulhall is a white-Caucasian man. (TAC ¶ 88). During
the relevant period, Mulhall was an Assistant Medicaid Inspector General and became acting
DMIG on October 21, 2020. (TAC ¶¶ 89–80). Plaintiffs allege that Mulhall has authority to
make personnel decisions including promotions, demotions, reassignments and salary increases
for DMI employees. (TAC ¶ 93). They further allege that Mulhall was hired at OMIG due to his
prior relationship with Coschignano and without any formal interview or recruitment process.
(TAC ¶ 94).
Defendant Edward Michael Dressler is a white-Caucasian man. (TAC ¶ 95).
During the relevant time period, Dressler was an Assistant Medicaid Investigator Charge and
MI-4 who reported to Coyne and Mulhall. (TAC ¶ 96).
Defendant Sean Mahoney is a white-Caucasian man. (TAC ¶ 99). During the
relevant time period, Mahoney was an Investigative Specialist 2 and reported to Dressler. (TAC
Defendant Edward Meyer is a white-Caucasian man who during the relevant time
period was Chief of Investigations for OMIG’s Albany Office. (TAC ¶¶ 106–07). He reported
directly to Coyne and indirectly to Rosen. (TAC ¶ 108).
Plaintiffs allege that defendants have continued to deny them promotions in
retaliation for filing and litigating Doran I. (TAC ¶ 366). The TAC alleges that all defendants
were aware of plaintiffs’ lawsuit and employment discrimination claims in Doran I. (TAC ¶¶
370–71). The TAC contends that no DMI employees who have opposed alleged discriminatory
practices at OMIG have been promoted since the Doran I complaint was filed. (TAC ¶¶ 373–
In March 2015, Rosen became Medicaid Inspector General of OMIG. (TAC ¶
372). Plaintiffs allege that the discriminatory practices at OMIG continued under Rosen’s
leadership. (TAC ¶¶ 372–73). According to plaintiffs, OMIG managers violate the agency’s
rules designed to protect against unlawful discrimination, while taking adverse actions against
OMIG employees that pursue complaints. (TAC ¶¶ 367–68).
Plaintiffs allege that OMIG, at Rosen’s direction, engaged in a strategy of
changing the requirements for job postings to fit the backgrounds of his preferred candidates and,
as a result, excluded employees like plaintiffs, who engaged in protected activity. (See, e.g.,
TAC ¶¶ 419–21). As part of this strategy, OMIG shifted leadership positions from the NYC
office to the Albany office where complaints of discrimination by investigators were less
common. (TAC ¶¶ 422–24).
In Doran II, plaintiffs challenge the denial of four promotions at OMIG between
2018 and 2019.3
Around April 2019, Stephanie Paton was promoted to the Assistant Medicaid
Inspector General for Investigations (“AMIG”) in OMIG’s NYC Office (the “2019 AMIG
Position”). (TAC ¶ 416). The TAC alleges that Rosen, Coyne and Ares changed the job
qualifications for the 2019 AMIG position to assure the selection of Paton, who had not
previously complained of discrimination. (TAC ¶ 404). The decision to select Paton was made
by Rosen, Coyne and Ares. (TAC ¶ 416). Doran and Linn interviewed for the position but were
denied the promotion. (TAC ¶¶ 411, 414, 447–48).
Doran’s allegations also discuss the November 2017 promotion of Coyne to DMIG of DMI. The TAC identifies
the denial of this promotion as a “background allegation” and does not appear to allege that Coyne’s promotion was
unlawful. (See generally TAC ¶¶ 386–401).
Around April 2019, Eunice Green, a former OMIG employee, was hired to be
DMI’s New York City Manager of Medicaid Investigations (the “2019 Manager of Medicaid
Investigations Position”). (TAC ¶ 427). Rosen, Coyne, Mulhall and Ares recruited Green and
made the decision to select her for the position. (TAC ¶¶ 427–28). The TAC alleges that Rosen,
Coyne, Mulhall and Ares hired Green because she never engaged in protected activity and they
wanted to avoid promoting OMIG employees from the New York City office who previously
complained of discrimination. (TAC ¶¶ 429–31). Doran and Linn interviewed and were more
qualified for the position but were denied the promotion. (TAC ¶ 426–27, 430, 454–55, 458).
In November 2018, Mildred Palermo was promoted to Investigative Specialist 2,
a supervisory position (the “2018 Investigative Specialist 2 Position”). (TAC ¶¶ 433, 440). The
TAC alleges that the job posting was changed to remove a preference for candidates with a
degree in accounting, criminal justice or a related field, and reduced the requirement for
investigative experience from ten to seven years. (TAC ¶¶ 435–36). Coyne, with the approval
of Rosen, promoted Palermo, who had only worked at OMIG for a short time and received
“workplace violence complaints.” (TAC ¶ 440). Palermo had not engaged in protected activity.
(TAC ¶ 441). Doran, Linn, Baez and Shaporov all applied for the position and were more
qualified than Palermo. (TAC ¶¶ 433, 461, 481, 491). In October 2018, plaintiffs were each
interviewed for the position by Meyer and two auditors who are not named as defendants. (TAC
¶¶ 437, 464, 485, 495).
In mid-2019, Vladimir Polishnik was promoted to Management Specialist 3 (the
“2019 Management Specialist 3 Position”). (TAC ¶ 521). Rosen, Coyne and Ares allegedly
denied plaintiffs the opportunity to apply for this position. (TAC ¶ 519). Plaintiffs were more
qualified than Polishnik, who lacked the background and experience in investigations required
for the position. (TAC ¶ 522).
Other Discriminatory and Retaliatory Behavior.
Baez alleges that certain defendants retaliated against her by giving her negative
performance evaluations. On February 2, 2017, her supervisor, Greg Waring, and Dressler gave
Baez a “satisfactory” rating but included allegedly false negative comments claiming Baez was
late and her work quality was poor. (TAC ¶ 467). Baez’s 2016 evaluation from Waring
contained only positive comments. (TAC ¶ 468). Baez asked Waring why her evaluation
changed in 2017 and Waring claimed that he was pressured to give negative comments by DMI
management, which included Rosen, Coyne and Byrnes. (TAC ¶¶ 469–70). On July 11, 2018,
Dressler, acting under pressure from DMI management including Rosen, Coyne and Byrnes gave
Baez an “unsatisfactory” six-month certification. (TAC ¶ 472). In January 2019, Baez received
an “unsatisfactory” performance rating for 2018 from Dressler and her new supervisor,
Mahoney. (TAC ¶ 474). The 2018 evaluation falsely claimed that Baez was not doing her work
and undercounted the number of cases she was handling to criticize her performance. (TAC ¶¶
474, 476). In August 2019, Baez again received an “unsatisfactory” six-month certification.
(TAC ¶ 477). The TAC alleges that in January 2020, after the Court denied summary judgment
in Doran I, defendants “panicked” about a potential trial and changed Baez’s 2019 evaluation to
“satisfactory.” (TAC ¶ 478).
Shaporov alleges retaliatory conduct related to several traffic tickets that he
received on March 3, 2020, while operating a state-owned vehicle and traveling to an OMIG
training in Albany. (TAC ¶¶ 501–03). One of the tickets was for illegally tinted windows.
(TAC ¶ 504). Shaporov alleges that he asked Dressler and Mulhall for assistance in defending
the tickets but that they refused to help. (TAC ¶¶ 505–07).
In September 2018, OMIG instituted a new policy requiring all DMI investigators
to complete 15 priority cases within 180 days (the “180-Day Policy”). (TAC ¶ 512). The policy
initially only applied to OMIG’s New York City office, and plaintiffs allege that it was put in
place to retaliate against investigators in that office who had pursued discrimination complaints.
(TAC ¶¶ 515–16).
Doran II’s Claims.
The SAC sets forth six designated Doran II claims covering conduct from 2015 to
2020. Plaintiffs assert retaliation claims against all individual defendants under 42 U.S.C. §
1983 in violation of the Fourteenth Amendment Equal Protection Clause (Count IX), the
NYSHRL (Count XII) and the NYCHRL (Count XIII). Doran seeks injunctive relief under the
ADEA for his retaliation claims (Count VIII). Lastly, Doran and Linn allege age discrimination
against Rosen, Coyne, Mulhall and Ares in violation of the NYSHRL (Count X) and the
NYCHRL (Count XI).
Defendants move to dismiss (1) all of the Doran II retaliation claims against
Byrnes, Mahoney, Dressler, Meyer and Mulhall, (2) plaintiffs’ retaliation claims challenging the
180-Day Policy against all individual defendants and (3) Baez, Doran and Linn’s retaliation
claims challenging the 2019 Management Specialist 3 Position against all individual defendants.
(Defs. Mem. at 12 (Doc 283)).
The Court set forth the applicable pleading standard under Rule 12(b)(6), Fed. R.
Civ. P. in the Memorandum and Order ruling on the Doran I motion to dismiss. (MTD Opinion
Personal Involvement of Defendants.
The Moving Defendants urge that Plaintiffs’ Doran II retaliation claims against
them must be dismissed because they were not personally involved in the alleged discriminatory
conduct. The Court has previously described the standards for holding individual defendants
liable under section 1983, the NYSHRL and the NYCHRL and will only briefly review them.
(MTD Opinion at 20–23; Summary Judgment Opinion at 15–19).
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official's own individual actions, has
violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Under section 1983 an
individual may only be held liable if he or she “is personally involved in the alleged
deprivation.” Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (internal
quotation marks omitted); see also Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 82
(2d Cir. 2015). A defendant, additionally, “must act with discriminatory purpose.” Raspardo v.
Carlone, 770 F.3d 97, 125 (2d Cir. 2014). Under the NYSHRL and NYCHRL, individual liability
similarly requires personal involvement of a defendant. Feingold v. New York, 366 F.3d 138, 157–
58 (2d Cir. 2004).
The TAC alleges that during the relevant time period all of the individual
defendants were “responsible for developing, implementing and enforcing personnel policies and
procedures affecting the terms and conditions of employment of employees within OMIG,
including the Plaintiffs.” (TAC ¶ 110). But beyond this bare assertion, plaintiffs fail to allege
the personal involvement of the Moving Defendants in much of the alleged retaliatory conduct.
Upon review of the well-pleaded factual allegations in the TAC, the Court
concludes that only the Doran II retaliation claims listed below plausibly allege the personal
involvement of a Moving Defendant. Moreover, all claims against Meyer will be dismissed for
lack of personal involvement.
Baez states a retaliation claim against Byrnes, Mahoney and Dressler. The TAC
alleges that DMI management, including Byrnes, pressured Baez’s supervisor to give Baez negative
performance evaluations. (TAC ¶¶ 469–70, 479). Baez also alleges that Dressler and Mahoney gave
her an unsatisfactory six-month certifications and negative performance evaluations that included
false criticisms regarding her performance. (TAC ¶¶ 472–79).
Doran and Linn state a retaliation claim against Mulhall. The TAC alleges that
Mulhall interviewed Doran and Linn for the 2019 Manager of Medicaid Investigations position.
(TAC ¶¶ 426, 454). It further contends that Mulhall helped recruit externally for the position to
hire Eunice Green to avoid promoting OMIG employees such as Doran and Linn who had
previously complained of discrimination. (TAC ¶¶ 427–28, 431–32, 455–56, 459–60).
Shaporov alleges the personal involvement of Dressler and Mulhall related to
Shaporov’s request for assistance with traffic tickets. But for reasons to be explained, Shaporov
has failed to allege that the retaliatory conduct related to the traffic tickets constituted an adverse
Lastly, the retaliation claims against Meyer are dismissed. The TAC alleges that
Meyer, along with two auditors, interviewed each of the plaintiffs for the 2018 Investigative
Specialist 2 Position. (TAC ¶¶ 437, 464, 485, 495). The TAC states that at one-point Meyer told
Doran that he would decide who was hired for the position (TAC ¶ 438), but plaintiffs later
allege that individual defendants, not including Meyer, selected Mildred Palermo for the
position. (TAC ¶¶ 440, 466, 488, 498). During Shaporov’s interview for the 2018 Investigative
Specialist 2 Position, he was questioned about “why he even needed a supervisory position” by
an unnamed individual. (TAC ¶ 496). Baez alleges that Meyer is friends with Doran I defendant
and former Medicaid Inspector General Cox but that during the interview Meyer said he had not
spoken with Cox recently. (TAC ¶ 486). Although Meyer participated in the interviews of
plaintiffs, the allegations do not plausibly support an inference of retaliatory animus or that
Meyer was personally involved in selecting Palermo.
Plaintiffs bring retaliation claims under section 1983, the NYSHRL and the
NYCHRL. A retaliation claim under the NYSHRL is construed under the same standards as its
federal counterparts, including Title VII and 1983. (See MTD Opinion at 28–29).4
For a retaliation claim to survive a motion to dismiss, “the plaintiff must plausibly
allege that: (1) defendants discriminated—or took an adverse employment action—against him
[or her], (2) because he [or she] has opposed any unlawful employment practice.” Duplan v.
City of New York, 888 F.3d 612, 625 (2d Cir. 2018) (quoting Vega, 801 F.3d at 90 (internal
quotation marks omitted)); see also (MTD Opinion at 28–29).
Pleading Adverse Employment Actions.
Under section 1983 and the NYSHRL, “[a]n adverse employment action in a
retaliation case includes conduct that is harmful to the point that it could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Dupont, 888 F.3d at
626–27 (internal quotation marks omitted). In determining whether an employment action is
The NYCHRL is to be construed more liberally than the federal standards and the NYSHRL. (MTD Opinion at
28–29). “In August 2019, the NYSHRL was amended to direct courts to construe the NYSHRL, like the NYCHRL,
‘liberally for the accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws
including those laws with provisions worded comparably to the provisions of [the NYSHRL] have been so
construed.’ ” McHenry v. Fox News Network, LLC,
F. Supp. 3d
, 2020 WL 7480622, at *8 (S.D.N.Y. Dec.
18, 2020) (Engelmayer, J.) (quoting N.Y. Exec. Law § 300). The amendments to the NYSHRL only apply to
conduct after the amendment’s effective date of August 12, 2019. Id. Accordingly, the Court will apply the postamendment NYSHRL standard on this motion to alleged discriminatory or retaliatory conduct occurring after the
amendment’s effective date.
materially adverse “context matters.” Vega, 801 F.3d at 90, and “[a]lleged acts of retaliation
must be evaluated both separately and in the aggregate, as even trivial acts may take on greater
significance when they are viewed as part of a larger course of conduct.” Tepperwien v. Energy
Nuclear Operations., Inc., 663 F.3d 556, 568 (2d Cir. 2011). “The NYCHRL is construed more
liberally than section 1983 or NYSHRL, which serve as the floors below which the NYCHRL must
not fall.” (Summary Judgment Opinion at 43 (citation omitted)). Where the Court concludes
plaintiffs have alleged an adverse employment action for purposes of section 1983 and the NYSHRL,
it also concludes that the broader NYCHRL or post-August 2019 NYSHRL standard has been met.
First, Byrnes, Mahoney and Dressler argue that negative performance evaluations
and commentary that Baez received would not dissuade a reasonable employee from making a
charge of discrimination. The Second Circuit has plainly stated in the context of a retaliation
claim that, “of course, a poor performance evaluation could very well deter a reasonable worker
from complaining.” Vega, 801 F.3d at 92–23. Baez alleges that a series of reviews and sixmonth certifications contained false negative commentary or negative performance evaluations.
(TAC ¶¶ 472, 474, 469–70). She asserts that the “unsatisfactory” ratings remain in her
permanent personnel file and affect her ability to receive promotions and salary raises. (TAC ¶
480). Viewed in the aggregate, Baez plausibly alleges a material adverse employment action.
Second, Dressler and Mulhall urge that their failure to assist Shaporov with
driving tickets does not constitute an adverse employment action. On March 3, 2020, Shaporov
received several driving tickets while driving a state vehicle during the course of his
employment. (TAC ¶¶ 502–03). The TAC specifically identifies only one of those tickets,
which was for illegally tinted windows. (TAC ¶ 504). Shaporov contends that Dressler and
Mulhall refused to assist him with the tickets or provide a letter stating that Shaporov was an
OMIG investigator on state business and driving a state car at the time of the traffic stop. (TAC
¶¶ 505, 507). Shaporov had to hire an attorney at his own expense to have the charges
dismissed. (TAC ¶ 506). Based on the allegations in the TAC, Shaporov has not plausibly
alleged that he suffered an adverse employment action. In March 2020, according to the TAC,
Mulhall was an Assistant Medicaid Inspector General and Dressler was an Assistant Medicaid
Investigator. (TAC ¶¶ 89, 96). The TAC fails to allege facts supporting a reasonable inference
that Dressler’s or Mulhall’s responsibilities included helping OMIG employees defend traffic
tickets. To the extent Shaporov’s status as an OMIG employee was relevant in defending against
the traffic tickets, Shaporov was free to prove this fact in the adjudication of the traffic
violations. For reasons explained, Shaporov also fails to state a claim under the NYCHRL or
post-amendment NYSHRL standard. Although this broader standard does not consider whether
the employer’s conduct was material, Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712,
723 (2d Cir. 2010), Shaporov fails to plausibly allege that Dressler and Mulhall’s conduct was
retaliatory based on their roles and responsibilities at OMIG.
Pleading of a Causal Connection.
Plaintiffs may allege a causal connection “‘(1) indirectly, by showing that the
protected activity was followed closely by discriminatory treatment . . . or (2) directly, through
evidence of retaliatory animus directed against the plaintiff by the defendant.’ ” Littlejohn, 795
F.3d at 319 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). Under
the NYSHRL and NYCHRL, plaintiffs must also plead a causal connection and may do so based
on temporal proximity. See e.g., Harrington v. City of New York., 157 A.D.3d 582, 585–86 (1st
Moving Defendants argue that plaintiffs have failed to allege an adverse
employment action was taken because of a protected activity. They urge that the temporal
proximity between plaintiffs last protected activity, the filing of Doran I in September 2015, and
any retaliatory conduct alleged in Doran II is too remote to plead a causal connection.
As an initial matter, over the course of litigating Doran I plaintiffs have engaged
in protected activity subsequent to the filing of the complaint. See Treglia v. Town of Manlius,
313 F.3d 713, 720–21 (2d Cir. 2002) (rejecting a similar argument because it “ignore[d]
[plaintiff’s] protected activity” between the filing of an administrative complaint and the
retaliatory conduct, including the submission of “a list of witnesses”); Infantolino v. Joint Indus.
Bd. of Elec. Indus., 582 F. Supp. 2d 351, 359 (E.D.N.Y. 2008) (“I conclude that [plaintiff’s]
September 2005 opposition to JIB's motion for summary judgment constituted the last protected
activity . . . .”); cf. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 174–75 (2d Cir. 2005)
(noting that Title VII’s “anti-retaliation clause protects an individual who has ‘participated in any
manner’ in a Title VII related proceeding” (citing 42 U.S.C. § 2000e–3(a))); Cruz v. Lee, 14-cv4870, 2016 WL 1060330, at *7 (S.D.N.Y. Mar. 15, 2016) (Roman, J.) (“The [earlier filed] case
was pending—and the protected activity was therefore ongoing—when the alleged adverse
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.’ ” Summa v. Hofstra
Univ., 708 F.3d 115, 128 (2d Cir. 2013) (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.
2009)). Accordingly, on a motion to dismiss a district court may “‘exercise its judgment about
the permissible inferences that can be drawn from temporal proximity in the context of particular
cases.’ ” Id. (quoting Goord, 558 F.3d at 129). The Court also keeps in mind that at the
pleadings stage “the burden for establishing a prima facie case of retaliation is ‘de minimis.’ ”
Duplan, 888 F.3d at 626 (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010))
(concluding that plaintiffs plausibly alleged a causal connection).
The Court concludes that plaintiffs have plausibly alleged a causal connection for
their retaliation claims, not otherwise dismissed for lack of personal involvement, against the
Moving Defendants. Plaintiffs have actively pursued their Doran I claims since the Court
granted in part and denied in part defendants motion to dismiss on March 2, 2017. (Doc 92).
For instance, plaintiffs opposed defendants’ motion for summary judgment on February 25, 2019
(Doc 193).5 The retaliatory conduct alleged in the TAC all occurred between 2017 and early
2020. Moreover, plaintiffs allege an ongoing pattern of retaliation since Doran I, including that
no DMI employees who have opposed discrimination at the agency, including plaintiffs and
seven other employees listed in the TAC have been promoted by the individual defendants.
(TAC ¶¶ 373–74).
As this Court previously observed in Doran I, “[e]xperience has shown that a
complaint may be sufficient to withstand a motion to dismiss, but, after discovery, the facts may
look quite differently on a motion for summary judgment or at trial.” (MTD Opinion at 36).
Drawing all reasonable inferences in plaintiffs’ favor, and considering plaintiffs’ ongoing and
contested litigation against multiple individual defendants at OMIG and the ongoing pattern of
retaliation and discrimination alleged at that agency, the allegations in the TAC are sufficient to
plausibly allege a causal connection.
On a motion to dismiss the Court may take judicial notice of the docket sheet. Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006).
Defendants Remaining Challenges to Alleged Retaliatory Conduct.
The 180-Day Policy.
Defendants urge that all of plaintiffs’ claims based on the 180-Day Policy should
be dismissed. In September 2018, Coyne and Rosen imposed on plaintiffs and all DMI
investigators in the New York City office a new policy requiring them to complete 15 priority
cases within 180 days. (TAC ¶ 512). Initially, the policy did not apply to investigators in the
Albany and Buffalo DMI offices. (TAC ¶ 513). After a union grievance was filed in October
2018, the policy was changed to apply to all offices. (TAC ¶ 514). Plaintiffs allege that the
policy was put in place to pressure and retaliate against investigators in the New York City office
who have engaged in protected activity and that it is not enforced in other offices. (TAC ¶¶ 515–
16). The TAC alleges that defendants undercounted the number of cases Baez handled under the
policy and used this to criticize her performance. (TAC ¶ 517). It further alleges that defendants
blocked Shaporov from partnering with his usual colleague to complete 15 priority cases under
the policy. (TAC ¶ 518).
The generalized allegations in the TAC do not allege which individual defendants
enforced the policy in a discriminatory manner against plaintiffs. (TAC ¶¶ 517–18); cf. Iqbal,
556 U.S. at 681 (“These bare assertions . . . amount to nothing more than a ‘formulaic recitation
of the elements’ of a constitutional discrimination claim.”). Moreover, the TAC only makes the
conclusory allegation that the policy was enforced solely at the New York City office. (TAC ¶
516). Shaporov does not allege that the policy was enforced against him in a different manner
than other investigators. Although Baez’s retaliation claims survive to the extent that she alleges
a negative performance evaluation under the 180-Day Policy, her allegations standing alone do
not plausibly allege that the 180-Day Policy itself was retaliatory in nature. Plaintiffs’ claims of
retaliation based on the 180-Day Policy, other than Baez’s claim as noted above, will be
The 2019 Management Specialist 3 Position.
Defendants urge that Doran, Baez and Shaporov’s retaliation claims related to the
2019 Management Specialist 3 Position should be dismissed because these plaintiffs were not on
the civil service list and therefore not eligible for the position. Plaintiffs allege that Rosen,
Coyne and Ares denied them the opportunity to apply for the position and that Vladimir
Polishnik was selected, a candidate alleged to be less qualified and experienced than plaintiffs.
(TAC ¶¶ 519–23). Even if the Court were to take judicial notice of the civil service list as
defendants request,6 the relevance of the list and impact on plaintiffs’ claims are more
appropriately assessed on a developed factual record that includes further information regarding
the requirements for the position.
The following claims against the Moving Defendants in their individual capacities
survive defendants’ motion to dismiss: Baez’s claims for retaliation under section 1983, the
NYSHRL, and the NYCHRL against Byrnes, Mahoney and Dressler based on her receiving
negative performance evaluations; and Doran and Linn’s claims for retaliation under section
1983, the NYSHRL, and the NYCHRL against Mulhall based on the Manager of Medicaid
Investigations position. All of Plaintiffs’ other Doran II retaliation claims under section 1983,
the NYSHRL, and the NYCHRL against Dressler, Byrnes, Mahoney and Mulhall are dismissed.
All of Plaintiffs’ Doran II retaliation claims under section 1983, the NYSHRL, and the
NYCHRL against Meyer are dismissed. Plaintiffs’ retaliation claims under section 1983, the
https://www.cs.ny.gov/elmspublic/all/list.cfm?Exam=37915 (last accessed Apr. 20, 2021).
NYSHRL, and the NYCHRL based on the 180-Day Policy are dismissed. Plaintiffs retaliation
claims under section 1983, the NYSHRL, and the NYCHRL based on the 2019 Management
Specialist 3 Position survive as asserted against individual defendants other than the Moving
The defendants’ motion to dismiss is GRANTED in part and DENIED in part.
The Clerk is directed to terminate the motion (Doc 282).
Dated: New York, New York
April 26, 2021
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