Staten v. The City of New York

Filing 27

MEMORANDUM OPINION AND ORDER re: 14 FIRST MOTION to Dismiss the Amended Complaint. filed by The City of New York. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, those a rguments are either moot or without merit. For the foregoing reasons, the City's motion to dismiss is granted and the Complaint is dismissed. The federal claims are dismissed with prejudice and the claims under the New York State and New York City Human Rights Laws are dismissed without prejudice to their being raised in state court. The Clerk is directed to close all pending motions and enter judgment closing this case. SO ORDERED. (Signed by Judge John G. Koeltl on 7/10/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
CLAUDE STATEN,
Plaintiff,
- against -

16-cv-5317
MEMORANDUM OPINION
AND ORDER

THE CITY OF NEW YORK,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
Pro se plaintiff Claude Staten, an officer with the New
York City Police Department (“N.Y.P.D”), brought this employment
discrimination action against the City of New York (“the City”)
alleging various causes of action under federal, state, and
local law. This suit –- Staten’s third federal litigation
against the City -- includes claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621 et seq., the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. L. §§ 290 et seq., and the New York City
Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §8-101 et seq.
In particular, the plaintiff alleges that the City has impeded
his advancement within the N.Y.P.D. because of the plaintiff’s
age, race, and color. He also alleges that he was subjected to a
hostile work environment and that the N.Y.P.D. retaliated
against him. The City now moves to dismiss the complaint in its

entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, arguing that the claims are subject to claim
preclusion, that many of the claims are time-barred, and that
the Complaint otherwise fails to state a plausible claim for
relief. For the reasons set forth below, the motion is granted.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a

2

court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession
or that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. Villar v. Ramos, 2015 WL
3473413, at *1 (S.D.N.Y. June 2, 2015).
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks
omitted). “Even in a pro se case, however, . . . threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (internal quotation
marks omitted). Thus, although the Court is “obligated to draw
the most favorable inferences” that the complaint supports, it
“cannot invent factual allegations that [the plaintiff] has not
pled.” Id.
II.
For the purposes of the motion to dismiss, the Court
accepts as true the factual allegations in the Complaint.

3

A.
The plaintiff, a fifty-two year-old Black-Hispanic male,
has been employed by the N.Y.P.D for over thirty years. Amended
Complaint (“Compl.”), ECF No. 13, p. 3; Compl. Ex. 2 p. 3, ECF
No. 13-2. Three years into his tenure as an officer, the
plaintiff took his first promotional exam in order to seek
eligibility for promotion to the rank of sergeant. Compl. p. 33.
Although the plaintiff allegedly passed the exam, he was told
that he had failed and was therefore not put on the list of
individuals eligible for promotion at that time. Id. More than
ten years later, in 2011, the plaintiff sat for and passed Exam
Number 1533 for promotion to the rank of sergeant. Compl. ¶ 1.
As a result, the plaintiff received a “list number” placing him
among a pool of individuals eligible to be promoted to the rank
of sergeant, but was not among those actually promoted from the
list. Id. ¶ 15. The plaintiff alleges that multiple white
officers under the age of forty with list numbers behind the
plaintiff’s –- that is, who scored lower on the Exam –- were
promoted from the same promotional exam list. Id. ¶¶ 15-18, 2223.
The plaintiff also alleges that he filed for and was
qualified to take Exam Number 5535 in April 2015 for promotion
to the rank of lieutenant, but was denied the chance to sit for
the exam despite having been permitted to take a lieutenant’s

4

exam in 2011. Id. ¶¶ 1, 21, 23. 1 The plaintiff alleges that the
decisions not to promote the plaintiff to the rank of sergeant
following Exam Number 1533 and not to allow the plaintiff to sit
for Exam Number 5535 were made on the basis of the plaintiff’s
“color, race, and age” in violation of Title VII, the ADEA, and
the New York State and New York City Human Rights Laws. Id.
¶ 23.
The plaintiff also alleges that he has been repeatedly
assigned to dangerous posts and given unfavorable work
assignments. For example, the plaintiff alleges that in January
2000 he was assigned a post as the precinct cell attendant in
the 046 precinct after a white male officer with less seniority
than the plaintiff protested to the assigning sergeant. Compl.
¶ 34. The plaintiff alleges that, over an unspecified period of
time, he has been placed on a particularly dangerous post within
the 046 precinct on multiple occasions and has been involved in
two officer-related shootings while on duty there. Id. ¶¶ 26-27.
He further alleges that, whereas certain white officers have
been rewarded with departmental recognition and special job
assignments following police-related shootings, the plaintiff
“was not credited for [his] heroic acts.” Id. ¶ 28; 52-53; p.
33.

1

The plaintiff failed the earlier lieutenant’s exam, Exam Number
1534. Compl. Ex. 1, ECF No. 13-1 p. 28.
5

The plaintiff also alleges that he has been repeatedly
assigned to work the “barrier section,” which is located in
Queens more than two hours from his home and, because of the
timing of his normal tours, the shift often leaves him sleep
deprived. Id. ¶¶ 60-63. The barrier section assignment requires
significant physical labor, and the plaintiff alleges that that
work was made more difficult on at least one occasion in June
2016 when he was forced to perform the work while assigned to a
truck with no working air conditioning. Id. ¶¶ 65-68.
The Complaint also alleges discriminatory and harassing
behavior by several individuals at the N.Y.P.D. The Complaint
alleges that on one occasion a Sergeant Leone spoke to the
plaintiff “in a very nasty, and unprofessional manner,” gave him
an unfavorable assignment requiring him to transport a prisoner
from Bronx central booking to Montefiore hospital, and refused
to provide the plaintiff with a patrol car with a partition to
use during the trip. Id. ¶¶ 37-39. Two other officers of color
allegedly reported to the plaintiff that Sergeant Leone had been
rude and disrespectful to them, and that they felt Sergeant
Leone was racist. Id. ¶¶ 43-45.
The plaintiff alleges that another white supervisor,
Sergeant Joseph Doria, has repeatedly given him unfavorable
assignments, including assigning the plaintiff to a midnight
“foot post” at a time when the plaintiff was recovering from a

6

broken ankle without providing the plaintiff with a vehicle, and
assigning him to multiple other posts which the plaintiff
considered to be “rookie” or “undesirable” posts. Compl. ¶¶ 4751. The plaintiff also alleges that former N.Y.P.D. Lieutenant
Kristine Schelberger mounted “an ongoing attack” against the
plaintiff throughout the years 2008 through 2010, apparently by
participating in the presentation of charges against the
plaintiff by the Internal Affairs Bureau, and put the plaintiff
in “threat of unnecessary harm” when she acted as his platoon
commander in or around 2013. Id. ¶¶ 56-58.
The plaintiff also alleges that, in January 2016,
Lieutenant Gabriel Healy made an inappropriate sexually explicit
comment to the plaintiff, and that on two other occasions
Lieutenant Healy made inappropriate jokes about the plaintiff
“harassing” female officers in the office. Compl. ¶¶ 71-80. The
plaintiff alleges that this behavior created a hostile work
environment and constituted harassment in violation of Title VII
and the New York City and New York State Human Rights Laws. He
also alleges that a Lieutenant Hillian wrongfully refused to
correct and consolidate the plaintiff’s sick reports as a form
of retaliation against the plaintiff “for speaking out against
the NYPD.” Id. ¶¶ 92-94.
Finally, the plaintiff alleges that he believes that the
N.Y.P.D. was responsible for the disruptive and aggressive

7

questioning of the plaintiff’s then-sixteen year-old daughter at
his home in Monticello, New York, in what he believes was a
failed attempt to discover the plaintiff in violation of the
N.Y.P.D. residency requirements. Compl. ¶¶ 81-87.
In sum, the Complaint alleges a wide-ranging plot to impede
the advancement of the plaintiff’s career and force the
plaintiff to quit or retire. Prior to filing suit, the plaintiff
filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on June 29, 2016. Compl. p. 3. 2
Construed liberally, the Complaint asserts claims for (1) race
and age discrimination in violation of Title VII, 42 U.S.C.
§ 2000e et seq. and the ADEA; (2) creation of a hostile work
environment; (3) retaliation; (4) race and age discrimination in
violation of the New York State Human Rights Law; and (6) race
and age discrimination in violation of the New York City Human
Rights Law. The plaintiff seeks $25 million in damages, as well
as fees and costs.

2

The plaintiff received a right to sue letter on March 31, 2016.
ECF No. 13 p. 47. That letter could not have corresponded to the
relevant EEOC complaint, which was apparently filed June 29,
2016. ECF No. 13 p. 3. However, the City confirmed at oral
argument on the motion that it does not contend that the
plaintiff failed to obtain a right to sue letter corresponding
to the June 29 EEOC complaint, and thus does not argue that the
claims in the Amended Complaint are unexhausted.
8

B.
This not the plaintiff’s first litigation against the City.
In Staten I, the plaintiff sued the City pursuant to 42 U.S.C.
§§ 1981 and 1983 and the New York State and New York City Human
Rights Laws. Staten v. City of New York, (“Staten I”), 2014 WL
3907926, at *1 (S.D.N.Y. Aug. 7, 2014). The plaintiff alleged
that the City had discriminated against him by failing to
promote him to the rank of sergeant in 2011 and 2012 despite the
fact that he had taken and passed the sergeant’s exam. Id. at
*3. Because the plaintiff had been placed on “Level II”
performance monitoring based on his employment history, the
plaintiff was required to appear before the Career Advancement
Review Board (“CARB”) for assessment before being promoted to
the rank of sergeant. Id. at *2-*3. The plaintiff’s commanding
officers and supervisors repeatedly recommended that the
plaintiff not be promoted based on, among other things, his poor
sick leave record, his troubling disciplinary history, and his
failure to take responsibility for past disciplinary issues. Id.
at *3. On both occasions that the plaintiff appeared before the
CARB, the Board unanimously voted not to promote the plaintiff
to the rank of sergeant. Id. The court in Staten I dismissed the
plaintiff’s claims on summary judgment, concluding that the
plaintiff’s allegation that the City had targeted him on the
basis of race was conclusory and based “on mere conjecture” and

9

was thus insufficient to rebut the City’s non-discriminatory
justification for failing to promote the plaintiff. Id. at *6.
In Staten II, the plaintiff sued the City pursuant to Title
VII, the ADEA, and the New York State and New York City Human
Rights Laws, alleging race and age discrimination, hostile work
environment, and retaliation. Staten v. City of New York,
(“Staten II”), 2015 WL 4461688, at *1 (S.D.N.Y. July 20, 2015).
The plaintiff alleged, among other things, that the N.Y.P.D.
failed to promote him to the rank of sergeant on the basis of
his age and race despite the fact that he sat for and passed
Exam Number 1533, making him eligible for promotion to the rank
of sergeant. Id. *1-2. The complaint also alleged that the
N.Y.P.D. failed to recognize the plaintiff’s “acts of bravery
and heroics” following two shooting incidents and awarded
special treatment to similarly situated white officers; that the
plaintiff had been forced to work the barrier section because of
his race and color; and that Lieutenant Schelberger had placed
the plaintiff in unnecessary danger because of his race. Id. *34.
The district court granted the City’s motion to dismiss.
The court concluded that the plaintiff’s claims regarding
failure to promote were subject to claim preclusion because the
new allegations merely “provide[d] additional supportive
examples” of failure to promote and did not form “any new,

10

distinct bases” for the plaintiff’s claims that could not have
been raised in Staten I. Id. at *6-8. The court also determined
that certain of the claims in the complaint were time-barred,
and that the remaining claims failed to state a claim upon which
relief could be granted. See id. at *8-14. In particular, the
court concluded that plaintiff had failed to plead any timely
facts supporting an inference of race, age, or other
discriminatory motive. Id. at *11-14.
The Court of Appeals affirmed the judgment dismissing the
plaintiff’s claims. The court agreed that “claim preclusion
applies to bar relitigation of Staten’s promotion claims because
he could have raised those claims in his prior federal action,
which raised nearly identical claims”; that many of the
plaintiff’s claims were time-barred; and that the complaint
failed to allege facts sufficient to support a claim of hostile
work environment. Staten v. City of New York, (“Staten III”),
653 F. App’x 78, 79-81 (2d Cir. 2016) (summary order). The Court
of Appeals also noted in rejecting the plaintiff’s hostile work
environment claim that “receiving orders to work in dangerous
locations or control dangerous situations, absent more, does not
amount to hostile work environment given Staten’s employment as
a police officer.” Id. at 81.
Finally, the plaintiff challenged the decision not to allow
the plaintiff to sit for the lieutenant’s exam, Exam Number

11

5535, in an Article 78 proceeding in New York state court. See
Staten v. City of New York, (“Staten IV”), No. 101627/2016 (Sup.
Ct. N.Y. Cty. March 8, 2017), ECF No. 18-1. The court there
concluded that there was a rational basis for denying the
plaintiff the opportunity to sit for the exam –- namely, that
only those who hold the rank of sergeant may sit for the
lieutenant’s exam, and the plaintiff had not been appointed to
the rank of sergeant. ECF No. 18-1 pp. 3-4.
III.
The City now moves to dismiss the Complaint in its
entirety. The City argues that the claims in the Complaint are
barred by claim and issue preclusion; that many of the claims
are time-barred; and that the Complaint otherwise fails to state
any plausible claim for relief.
A.
The doctrine of claim preclusion forecloses litigation of a
claim that has been adjudicated in an earlier suit. Marcel
Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d
102, 107-08 (2d Cir. 2015). Dismissal of a claim on the basis of
claim preclusion requires a showing that “(1) the previous
action involved an adjudication on the merits; (2) the previous
action involved the same adverse parties or those in privity
with them; and (3) the claims asserted in the subsequent action
were, or could have been, raised in the prior action.” Id. at

12

108 (alteration omitted) (quoting TechnoMarine SA v. Giftports,
Inc., 758 F.3d 493, 499 (2d Cir. 2014)). It is undisputed that
both Staten I and Staten II constitute an adjudication on the
merits of the claims brought in those actions. See Berrios v.
N.Y.C. Hous. Auth., 564 F.3d 130, 134-35 (2d Cir. 2009)
(dismissal of a complaint for failure to state a claim “is a
final judgment on the merits” which “precludes the parties or
their privies from relitigating issues that were or could have
been raised in that action” (quotation marks omitted)). “Even
claims based upon different legal theories are barred provided
they arise from the same transaction or occurrence.” Id. at 135
(quotation marks omitted).
The City argues that the Complaint must be dismissed
because the various allegations of discrimination and
retaliation have already been litigated on their merits and
resolved against the plaintiff. The plaintiff offers no
meaningful argument in response but simply restates allegations
made in the Complaint. See Mem. in Opp. to Mot. at 13-15.
The claims related to Exam Number 1533 for promotion to the
rank of sergeant and Exam Number 5535 for promotion to the rank
of lieutenant are plainly precluded. The plaintiff already sued
the City for failing to promote him following Exam Number 1533.
See Staten II, 2015 WL 4461688, at *1-3. Those claims were
dismissed precisely because they had already been litigated in

13

Staten I and were themselves subject to claim preclusion. See
id. at *7-8; see also Staten III, 653 F. App’x at 79 (affirming
dismissal on the basis of claim preclusion). The plaintiff
insists that his claim this time around is not for failure to
promote, but rather a claim that the defendant has “put[] forth
efforts to stop [his] career advancement.” Mem. in Opp. to Mot.
p. 4. But the precise legal theory the plaintiff chooses to set
out is irrelevant for the purposes of claim preclusion.
“[W]hatever legal theory is advanced, when the factual predicate
upon which claims are based are substantially identical, the
claims are deemed to be duplicative for purposes of [claim
preclusion].” Berlitz Schs. of Languages of Am., Inc. v. Everest
House, 619 F.2d 211, 215 (2d Cir. 1980). However styled, the
plaintiff’s allegations regarding the N.Y.P.D’s failure to
promote the plaintiff following Exam Number 1533 are duplicative
of the claims at issue in Staten II and are therefore precluded.
The allegations surrounding the lieutenant’s exam, Exam
Number 5535, must also be dismissed. “It is true that res
judicata will not bar a suit based upon legally significant acts
occurring after the filing of a prior suit that was itself based
upon earlier acts.” Waldman v. Village of Kiryas Joel, 207 F.3d
105, 113 (2d Cir. 2000). But “claim preclusion may apply where
some of the facts on which a subsequent action is based postdate the first action but do not amount to a new claim.” Storey

14

v. Cello Holdings, LLC, 347 F.3d 370, 384 (2d Cir. 2003)
(Sotomayor, J.). Thus, when the new acts are “nothing more than
additional instances of what was previously asserted,” and when
the instant complaint is based “principally upon the common
nucleus of operative facts shared” with the already-decided
action, claim preclusion applies. Waldman, 207 F.3d at 113.
Under those circumstances, such facts do “not create a ‘new’
cause of action that did not exist when the prior suits were
brought.” Id. at 112. The allegations regarding the N.Y.P.D.’s
refusal to allow the plaintiff to sit for Exam Number 5535 are
“nothing more than additional instances of what was previously
asserted,” id., that is, that the N.Y.P.D. discriminated against
the plaintiff by wrongfully failing to promote him after he had
passed the sergeant’s exam. The plaintiff may not revive the
claims by simply pointing to new instances of the same sort of
conduct that he alleged in Staten I and Staten II was
discriminatory. See Staten I, 2014 WL 3907926, at *3 (“Plaintiff
asserts that the City has violated his civil rights because even
though he took, and passed, the examination for promotion to the
rank of Sergeant . . . numerous times, the N.Y.P.D. has never
promoted him during the last twenty-one years.”); Staten II,
2015 WL 4461688, at *7-8 (dismissing claims for failure to
promote because those claims were litigated in Staten I). The
refusal to allow the plaintiff to sit for Exam Number 5535 was

15

the inevitable consequence of the failure to promote the
plaintiff to the rank of sergeant, which failure has already
been the subject of litigation between the parties. Because the
plaintiff’s claim that the N.Y.P.D. has wrongfully failed to
promote him notwithstanding the fact that he passed at least one
sergeant’s exam has already been adjudicated on the merits and
resolved against the plaintiff, it is subject to claim
preclusion and must be dismissed.
The claims in the Complaint that are based on allegations
that the plaintiff has been forced to work the “barrier
section,” that he did not receive recognition or accolades from
the N.Y.P.D. following two officer-involved shootings, and that
he has been assigned to particularly dangerous posts are
likewise subject to claim preclusion. Those issues were all
“raised and adjudicated in a prior litigation between the
parties.” Marcel Fashions, 779 F.3d at 108; see Staten II, 2014
WL 3907926, at *3-4 (describing the plaintiff’s allegations that
the “Defendant failed to recognize [the plaintiff’s] ‘acts of
bravery and heroics’ when he was involved in two shooting
incidents in 1996 and 2000,” that Lieutenant Schelberger
“plac[ed] him in dangerous situations,” and that the plaintiff
“has been assigned to the barrier section in Long Island City,
Queens at least twice per month since September 2014”). The
inclusion of multiple occasions on which the plaintiff has been

16

assigned to a dangerous post are “nothing more than additional
instances” of his earlier claims to the same effect. See Staten
III, 653 F. App’x at *80-81 (affirming dismissal of claims that
the plaintiff was forced to work dangerous posts because
“receiving orders to work in dangerous locations or control
dangerous situations, absent more, does not amount to a hostile
work environment given Staten’s employment as a police
officer”).
Moreover, because all of the allegations that pre-date the
amended complaint in Staten II “could have been[] raised in the
prior action,” those claims are also precluded. Marcel Fashions,
779 F.3d at 108. Thus, all of the claims based on conduct that
allegedly occurred prior to November 19, 2014 must be dismissed.
See Staten II, 14-cv-4307, ECF No. 11. 3 In sum, the claims in the
complaint alleging that the N.Y.P.D. wrongfully interfered with
the plaintiff’s career advancement to the rank of sergeant,
Compl. ¶¶ 13-24; that the plaintiff was wrongfully given unduly
dangerous work assignments and wrongfully denied accolades
following officer-involved shootings, Compl. ¶¶ 25-35, 52-55;
that the plaintiff was mistreated by Lieutenant Schelberger,

3

This includes the allegations regarding the assignment of
Officer Gregory Manning to the 046 precinct in January 2000;
allegations regarding an alleged “ongoing attack” against the
plaintiff by Lieutenant Shelberger between 2008 and 2013; and
allegations regarding the plaintiff’s use of sick leave prior to
November 2014. Compl. ¶¶ 34-35; 57-59; 89-93.
17

Compl. ¶¶ 56-59; and that the plaintiff was wrongfully forced to
work the “barrier section,” Compl. ¶¶ 60-70, are all barred by
the doctrine of claim preclusion and are dismissed.
B.
The City also argues that many of the claims in the
Complaint are time-barred. Prior to filing a federal claim
pursuant to Title VII or the ADEA, and individual must file an
administrative charge with the EEOC “within three hundred days
after the alleged unlawful employment practice occurred.” 42
U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B). “[C]laims
based on conduct that occurred more than 300 days before the
plaintiff filed his EEOC charge are time barred” and cannot be
brought in the later federal action. Staten III, 653 F. App’x at
80 (citing 42 U.S.C. § 2000e-5(e)(1)). Moreover, the 300 day
period “begins to run when each discrete discriminatory and
retaliatory act occurs.” Hill v. Citibank Corp., 312 F. Supp. 2d
464, 473 (S.D.N.Y. 2004) (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113-14 (2002)).
Because the plaintiff filed the relevant EEOC complaint on
June 29, 2016, the only timely federal claims are those that
accrued on or after September 3, 2015. 4 Accordingly, all claims

4

The plaintiff attaches another EEOC complaint to the Amended
Complaint, which is dated January 11, 2017. ECF No. 13 p. 39. It
is unclear whether that complaint was actually filed with the
EEOC, and the plaintiff has not submitted a right to sue letter
18

based on the following allegations are time-barred and must be
dismissed: (1) the allegations of failure to promote the
plaintiff to the rank of sergeant or to allow him to take Exam
Number 5535 for promotion to the rank of lieutenant, Compl.
¶¶ 13-24 (for exams that took place in August 2011, October
2011, and April 2015); (2) the allegations surrounding Officer
Manning’s assignment to the 046 precinct in January 2000, Compl.
¶¶ 34-35; (3) the alleged harassment and discrimination by
Lieutenant Shelberger between 2008 and 2010 and in 2013 Compl.
¶¶ 56-58; and (4) allegations of retaliation related to the
plaintiff’s sick leave in 1989, 2002, 2004, and 2012-2014,
Compl. ¶¶ 89-93.
C.
The City also argues that, even for those claims which are
not precluded or time-barred, the allegations in the Complaint
fail to state a plausible claim for relief and thus must be
dismissed. The Court agrees.
1.
Title VII makes it unlawful for an employer to discriminate
on the basis of “race, color, religion, sex, or national
origin,” 42 U.S.C. § 2000e-2(a)(1), and the ADEA prohibits

from the EEOC relating to that complaint, but it is irrelevant
for statute of limitations purposes because the allegations
contained in that complaint would be subject to an even later
statute of limitations compared to the June 29, 2016 complaint.
19

discrimination on the basis of age, 29 U.S.C. § 623(a). A prima
facie case of “disparate treatment” discrimination under either
statute requires a showing that the plaintiff (1) was a member
of the protected class; (2) that he was qualified for his
position; (3) that he experienced an adverse employment action;
and (4) that the action took place “under circumstances giving
rise to an inference of discrimination.” Bucalo v. Shelter
Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012)
(ADEA); Mario v. P&C Food Markets, Inc., 313 F.3d 758, 767 (2d
Cir. 2002) (Title VII). Although a plaintiff need not establish
a prima facie case of discrimination to survive a motion to
dismiss, “absent direct evidence of discrimination, what must be
plausibly supported by facts alleged in the complaint is that
the plaintiff is a member of the protected class, was qualified,
suffered an adverse employment action, and has at least minimal
support for the proposition that the employer was motivated by
discriminatory intent.” Littlejohn v. City of New York, 795 F.3d
297, 311 (2d Cir. 2015).
Many of the claims in the Complaint are based on
allegations that do not involve an adverse employment action.
“An adverse employment action is more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Id. at
312 n.10 (quotation marks omitted). Rather, it is “a materially
significant disadvantage with respect to the terms of the

20

plaintiff’s employment,” including, for example, “termination,
demotion, a less distinguished title, a loss of material
benefits, or significantly diminished material
responsibilities.” Id. (alterations and quotation marks
omitted). “Where assignments fall within the duties of a
plaintiff’s position, receiving unfavorable schedules or work
assignments does not, without more, rise to the level of an
adverse employment action.” Johnson v. Long Island Univ., 58 F.
Supp. 3d 211, 224 (E.D.N.Y. 2014). Thus, the allegations that
the plaintiff was assigned to dangerous posts or given
unpleasant assignments cannot support a claim of age or race
discrimination because those assignments do not constitute the
type of “materially adverse change in the terms and conditions
of employment” required to establish an adverse employment
action. Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000) (teacher’s reassignment to purportedly inferior
school did not constitute an “adverse employment action” for the
purposes of the plaintiff’s age discrimination claim); see also
Makinen v. City of New York, 53 F. Supp. 3d 676, 692-93
(S.D.N.Y. 2014) (police officer’s temporary shift change, which
did not impact her salary, benefits, or title, did not
constitute an adverse employment action). Although allegedly
unpleasant and inconvenient, the plaintiff’s assignments to work
the barrier section, transport a prisoner, and guard the

21

precinct cells were not adverse employment actions because they
were standard officer assignments and were unaccompanied by any
“materially adverse change” in the plaintiff’s employment such
as a demotion, loss of responsibility, change in salary,
reduction in benefits, or missed opportunity for career
advancement. Galabya, 202 F.3d at 640; see also Weeks v. N.Y.
State Div. of Parole, 273 F.3d 76, 86-87 (2d Cir. 2001)
(plaintiff parole officer’s transfer and reassignment to a
different office did not constitute a demotion and therefore was
not an adverse employment action), abrogated on other grounds by
Nat’l R.R. Passenger Corp., 536 U.S. at 101. As the Court of
Appeals noted in Staten III, “receiving orders to work in
dangerous locations or control dangerous situations” or to
complete unpleasant or inconvenient tasks are normal parts of
the plaintiff’s employment as a police officer. 653 F. App’x at
81. Taken together, the allegations in the Complaint that the
plaintiff was forced to work in dangerous locations or otherwise
given undesirable posts and assignments cannot form the basis of
a claim for race or age discrimination because those allegations
do not support a finding that the plaintiff was subjected to an
adverse employment action.
The only allegation of discrimination that is not timebarred or subject to claim preclusion is that two other officers
told the plaintiff that they feel that Sergeant Leone is racist,

22

and that the plaintiff himself has concluded that Sergeant Leone
“certainly has a problem with minority [p]olice officers.”
Compl. ¶ 46. However, the Complaint fails to allege any facts
that would provide minimal support for the proposition that
Sergeant Leone took any action against the plaintiff because of
the plaintiff’s race. Rather, the Complaint merely alleges that
Sergeant Leone spoke to the plaintiff in “a very nasty, and
unprofessional manner” while giving the plaintiff an unpleasant
work assignment. Compl. ¶ 37; see id. ¶¶ 36-46.
In response to the motion, the plaintiff copies and pastes
allegations from a January 2017 EEOC intake questionnaire, many
of which are not included in the Amended Complaint. Opp. to Mot.
pp. 19-27. For example, the plaintiff alleges that several
officers who were involved in decisions regarding the
plaintiff’s career advancement have since been found responsible
for corruption and other forms of wrongdoing. See Mem. in Opp.
pp. 22-25. None of those allegations provide any support for the
proposition that any decisions made with respect to the
plaintiff were made with discriminatory intent. In sum, many of
the claims under Title VII and the ADEA fail to allege any
adverse employment action, and even those claims that are not
claim precluded or time-barred are not accompanied by “minimal
support for the proposition that the employer was motivated by

23

discriminatory intent,” and must therefore be dismissed.
Littlejohn, 795 F.3d at 311.
2.
The Complaint, construed liberally, also includes claims of
race-based hostile work environment in violation of Title VII.
“When the workplace is permeated with discriminatory
intimidation, ridicule, and insult” based on race “that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment,
Title VII is violated.” Schiano v. Quality Payroll Sys., Inc.,
445 F.3d 597, 604 (2d Cir. 2006) (quotation marks omitted). “A
hostile work environment claim requires a showing [1] that the
harassment was sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment, and [2] that a specific basis exists for
imputing the objectionable conduct to the employer.” Alfano v.
Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quotation marks
omitted). Mere offensive utterances are not sufficient to
establish a hostile work environment. The Court of Appeals has
held that “[f]or racist comments, slurs, and jokes to constitute
a hostile work environment, there must be more than a few
isolated incidents of racial enmity,” which generally requires
that “instead of sporadic racial slurs, there must be a steady
barrage of opprobrious racial comments.” Schwapp v. Town of

24

Avon, 118 F.3d 106, 110 (2d Cir. 1997) (alteration and quotation
marks omitted). “Thus, whether racial slurs constitute a hostile
work environment typically depends upon the quantity, frequency,
and severity of those slurs, considered cumulatively in order to
obtain a realistic view of the work environment.” Id. at 110-111
(internal citation and quotation marks omitted). More recently,
the Court of Appeals noted that it has not foreclosed “the
possibility that the one-time use of a severe racial slur could,
by itself, support a hostile work environment claim when
evaluated in the cumulative reality of the work environment.”
Daniel v. T & M Protection Res., LLC, --- F. App’x ---, 2017 WL
1476598, at *1 (2d Cir. 2017) (summary order). The court there
stressed the impact of “the use of an unambiguously racial
epithet . . . by a supervisor in the presence of his
subordinates.” Id. (quotation marks omitted).
The Complaint alleges not a single racial slur, racially
charged comment, or incident involving racial enmity, let alone
one sufficiently severe as to form the basis of a claim for
hostile work environment. The only specific instances of alleged
harassment by another individual consist of allegations that (1)
Sergeant Leone spoke to the plaintiff “in a very nasty, and
unprofessional manner” on one occasion; (2) that Lieutenant
Schelberger “mount[ed] an ongoing attack” against the plaintiff;
(3) that Lieutenant Healy made a sexually suggestive comment to

25

the plaintiff and made two inappropriate jokes about the
plaintiff to two female officers; and (4) that members of the
N.Y.P.D. harassed the plaintiff’s daughter at the plaintiff’s
primary residence while he was not present. Compl. ¶¶ 37, 56-59,
72-80, 83-88. 5 None of those instances, or any other conduct
alleged in the Complaint, involves any alleged facts that would
suggest “a linkage or correlation to the claimed ground of
discrimination” on the basis of race. Alfano, 294 F.3d at 377.
Moreover, the allegations, taken together and accepted as
true, do not amount to conduct that is “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Schiano, 445 F.3d at 604
(quotation marks omitted). The conduct alleged was neither
frequent nor severe; the plaintiff was not subjected to any
physical threats; and the specific comments alleged to have been
made were no more than “mere offensive utterance[s].” Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Complaint
therefore fails to state a claim for hostile work environment.
3.
The Complaint also includes purported claims for
retaliation. To state a plausible claim for retaliation in
violation of Title VII and the ADEA, “a plaintiff must plead
5

The plaintiff does not allege any facts suggesting that any
individuals associated with the N.Y.P.D. were involved with the
encounter at the plaintiff’s home in Monticello, New York.
26

facts that would tend to show 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.” Patane v. Clark, 508 F.3d 106, 115 (2d Cir.
2007) (Title VII) (per curiam); see also Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (Title VII and
ADEA). The protected activity “usually takes the form of filing
a formal complaint with an agency or filing a lawsuit,” Kotcher
v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d
Cir. 1992), but “informal protests of discriminatory employment
practices, including making complaints to management” may also
suffice, Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.
1990).
The plaintiff appears to misapprehend the nature of a
retaliation claim. Being subjected to discriminatory or
harassing treatment is not the basis of a retaliation claim.
Rather, it is the causal connection between the plaintiff’s
protected activity and an adverse employment action that forms
the basis of a retaliation claim. Thus, the allegations that the
plaintiff was subject generally to “retaliation” that is
unconnected to any form of protected activity cannot support a
claim of retaliation. See Compl. ¶ 20 (the plaintiff found the
refusal to allow him to sit for the lieutenant’s exam “to be . .

27

. retaliation against [him]”); ¶ 58 (alleging that Lieutenant
Schelberger created a hostile work environment for the plaintiff
“[a]s a form of retaliation”).
The only conduct that is alleged to have any connection to
purported protected activity is the allegation that Lieutenant
Hillian refused to correct the plaintiff’s sick reports in
November 2015 “as a form of retaliation against [the plaintiff]
for speaking out against the NYPD.” Compl. ¶ 94. But the
Complaint does not allege any facts that would plausibly suggest
a connection between any of the plaintiff’s protected activity
and any of the allegedly retaliatory conduct. The plaintiff
offers no comments or other direct evidence of a causal
connection, and although a plaintiff may rely on temporal
proximity between known protected activity and an adverse
employment action, such proximity “must be very close,” and none
is alleged here. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001) (quotation marks omitted). The protected activity
closest in time to the alleged misconduct by Lieutenant Hillian
was apparently the plaintiff’s EEOC complaint filed in July
2015, four months before the allegedly retaliatory conduct. Mem.
in Opp. p. 28. 6 That proximity alone, such as it is, does not

6

The Court assumes for the purposes of the motion to dismiss
that such an EEOC complaint was actually filed in July 2015,
although the plaintiff has not attached the complaint anywhere
in his papers.
28

suggest causality. See Dixon v. Int’l Fed’n of Accountants, 416
F. App’x 107, 110-11 (2d Cir. 2011) (summary order) (temporal
proximity of four months was insufficient to establish
retaliation in the absence of direct evidence of a causal
connection). Given the absence of allegations to support an
inference that there was any connection between any protected
activity by the plaintiff and any allegedly disadvantageous
employment action, the Complaint fails to state a claim for
retaliation.
D.
The remainder of the claims in the Complaint allege state
and city law claims under the New York State and New York City
Human Rights Laws. The Court declines to exercise supplemental
jurisdiction over those claims. See Valencia ex rel. Franco v.
Lee, 316 F.3d 299, 305 (2d Cir. 2003) (noting that the district
court may, in its discretion, decline to exercise supplemental
jurisdiction over state law claims where “the district court has
dismissed all claims over which it has original jurisdiction”
(quoting 28 U.S.C. § 1367(c)(3)).
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, those
arguments are either moot or without merit. For the foregoing
reasons, the City’s motion to dismiss is granted and the

29

Complaint is dismissed. The federal claims are dismissed with
prejudice and the claims under the New York State and New York
City Human Rights Laws are dismissed without prejudice to their
being raised in state court. The Clerk is directed to close all
pending motions and enter judgment closing this case.
SO ORDERED.
Dated:

New York, New York
July 10, 2017

__/s/_________________________
John G. Koeltl
United States District Judge

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