Iscenko v. City Of New York et al

Filing 31

OPINION AND ORDER: For the foregoing reasons, Defendants motion to dismiss is GRANTED. The Clerk ofCourt is respectfully directed to close the motion at Docket Number 19 and close the case, and as further set forth in this order. Motions terminated: 19 MOTION to Dismiss, filed by City Of New York, Neldra Zeigler. (Signed by Judge Lorna G. Schofield on 7/5/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
MICHAEL ISCENKO,
:
Plaintiff,
:
:
-against:
:
CITY OF NEW YORK, et al.,
Defendants. :
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07/05/17

16 Civ. 6535 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Michael Iscenko, a former NYPD detective, was fired after being found guilty at
a department trial of having thrown semen on a co-worker. He sues based on his termination and
the events preceding it, alleging race discrimination in violation of the Equal Protection Clause
and 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York
State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law
(“NYCHRL”). Defendants -- the City of New York (the “City”) and Neldra Zeigler, the Deputy
Commissioner of the NYPD’s Office of Equal Employment Opportunity (“EEO Office”) -move to dismiss the Amended Complaint (the “Complaint”). For the following reasons, the
motion is granted.
BACKGROUND
The following facts are taken from the Complaint and accepted as true for the purposes of
this motion.1 See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016).

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Defendants appended to their motion the department trial examiner’s decision and Plaintiff’s
order of dismissal, which they argue may be considered on this motion because it is integral to
the Complaint. See Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir.
2005). Because the Complaint on its face fails to state a claim, the Court does not consider the
documents or address Defendants’ contention that they may be considered.

In 1986, the NYPD hired Plaintiff, a white male, as a police officer and, in 1997,
promoted him to the rank of sergeant. Plaintiff received another merit promotion in 2008 and
was assigned the rank of detective sergeant. Throughout his employment, he performed his
duties in an exemplary manner.
In 2006, the NYPD chose Chief Anthony Izzo, a white male, to replace Chief Doug
Zeigler, a black male, as the head of the Organized Crime Control Bureau (“OCCB”). A reporter
who covers NYPD operations wrote that Chief Izzo was Chief Zeigler’s “nemesis.” Chief Izzo
replaced Chief Zeigler’s team with his own “hand-picked team of sergeants and lieutenants” -including Plaintiff -- all of whom are white. Members of the NYPD believed these actions
heightened the animus between Chief Izzo and Chief Zeigler.
In 2008, two plainclothes officers, who were white, approached Chief Zeigler for “no
legitimate reason” while he was off-duty and ordered him out of his car, not believing he was an
NYPD chief. Chief Zeigler said he was a “victim of discrimination” based on this incident.
In January 2015, while in the hallway near his office, Plaintiff walked by a civilian
NYPD employee, Marilyn Montijo, a Hispanic female who is approximately 60 years old.
According to Montijo, she felt something “cold” on her leg as Plaintiff passed and looked down
to see a “creamy substance.” She asked Plaintiff, “Why did you do that?” Plaintiff continued
walking because he did “not think[] he had done anything.”
That same day, Montijo made a complaint to the NYPD EEO Office. As Deputy
Commissioner, Defendant Zeigler is ultimately responsible for the EEO Office. Defendant
Zeigler, a black female, is married to Chief Zeigler.
While at the EEO Office, Montijo met the NYPD’s Evidence Collection Team (“ECT”),
which vouchered as evidence Montijo’s stocking and the napkin she used to wipe the substance

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from her stocking. Later that day, ECT went to her house to collect her shoe. Because the shoe
had not been immediately collected, “it had been contaminated by Montijo wearing and walking
in it.”
On the same day as Montijo’s complaint, Defendant Zeigler issued to Plaintiff a notice of
complaint for unlawful employment discrimination based on national origin. Three days later,
she issued a notice that removed the reference to national origin discrimination and instead stated
that a “complaint of employment discrimination” had been filed against him.
Based on the items collected from Montijo, NYPD investigators believed the substance
on her was semen. On January 30, 2015, Plaintiff appeared at a “GO15,” i.e., a Departmental
Hearing. He testified that he did not throw anything at Montijo but may have accidentally
sneezed or coughed as he passed her in the hallway. Typically, a GO15 is conducted at the end
of an investigation rather than, as here, towards the start.
In May 2015, the EEO Office asked Plaintiff to provide a DNA sample. He refused. The
NYPD then placed Plaintiff on “modified assignment” and revoked his weapon, badge and work
cell phone. Plaintiff was transferred to a housing bureau with significantly diminished job
responsibilities and no opportunities for overtime pay. In June 2015, the NYPD suspended
Plaintiff without pay for falsely stating that he did not throw anything on Montijo. One month
later, the New York County District Attorney (“DA”) obtained a court order commanding the
NYPD to collect a DNA sample from Plaintiff. Someone within the NYPD “leaked” to the press
confidential information contained in the court order.
In July 2015, Defendant Zeigler endorsed charges against Plaintiff for the Montijo
incident and alleged false statement. Defendant Zeigler “[s]ubstantiated” an unspecified
allegation of “serious misconduct,” although she also advised Plaintiff that the allegation of

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“sexual harassment/hostile work environment” was “[u]nsubstantiated.” After Plaintiff’s
suspension ended in mid-July 2015, he returned to work in the housing bureau.
Plaintiff’s union lawyer told him that the DNA test matched him and he should consider
retiring. On September 1, 2015, Plaintiff submitted paperwork to begin processing his
retirement. On September 3, 2015, a grand jury indicted Plaintiff for a class B misdemeanor. He
was arrested, which was an unusual procedure given the charge, and released on bail after
pleading not guilty. Plaintiff was again suspended without pay for 30 days.
In mid-September 2015, Plaintiff appeared at his trial conducted by the Department
Advocate’s Office. Montijo testified that Plaintiff was “always courteous to her” and had not
“made any advances on her;” she also said she could not understand why Plaintiff would throw
semen on her. Plaintiff testified that he did not throw anything at Montijo.
A medical examiner testified that “she did not test the substance with the goal of
determining what the substance was. Rather, she believed it was semen and tested it to confirm
it was semen.” The examiner concluded that she found semen on the shoe, which had been
contaminated by Montijo walking in it, but could not confirm it was on Montijo’s stocking or
napkin. The medical examiner’s tests were improper and unreliable as detailed in the Complaint,
and proved only that Plaintiff’s “skin cells wound up on Montijo.”
The NYPD deviated from its “proper procedure” in handling the biological evidence. It
should have been logged in the Crime Lab and then immediately sent to the Medical Examiner’s
Office for testing. However, in this case, the Crime Lab improperly tested the substance for
chemicals before the Medical Examiner’s Office conducted any tests, and the Property Clerk’s
Office stored it for five months before it was sent to the Medical Examiner’s Office.

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The arbitrator determined that Plaintiff was guilty and recommended his dismissal. The
NYPD terminated Plaintiff’s employment as of September 25, 2015. The criminal proceedings
continued, and a representative from the EEO Office, which handles only internal police
employment matters, appeared at his court appearances.
The DA refused to agree to a plea involving a discontinuance, “even though [Plaintiff] is
charged only with a low level misdemeanor,” and continued to prosecute him even though it
temporarily lost the DNA evidence. In May 2016, after finding the evidence, the DA gave it to
Plaintiff, who had it tested. The testing revealed that the substance on Montijo’s shoe was saliva,
not semen. As of the date of this Opinion, the DA continues to prosecute the criminal case.
STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “a complaint 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 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.”
Id. (citing Twombly, 550 U.S. at 556). It is not enough for a plaintiff to allege facts that are
consistent with liability; the complaint must “nudge[]” claims “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. “To survive dismissal, the plaintiff must provide the
grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief
above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir. 2007) (quoting Twombly, 550 U.S. at 555). On a Rule 12(b)(6) motion, “all factual
allegations in the complaint are accepted as true and all inferences are drawn in the plaintiff’s
favor.” Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 59 (2d Cir. 2016).

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DISCUSSION
Plaintiff brings two federal claims. Count One is a § 1983 claim against both defendants
-- Defendant Zeigler based on discriminatory adverse employment actions, and Defendant City
based on deliberate indifference to constitutional violations under Monell v. Department of
Social Services, 436 U.S. 658 (1978). Count Four is a Title VII claim against the City based on
discriminatory adverse employment actions. Both counts are dismissed because the Complaint
does not plausibly allege that Plaintiff’s race was a motivating factor in the challenged
employment actions. The Monell claim against the City is dismissed because the Complaint
does not adequately allege an underlying constitutional violation. In light of the dismissal of the
federal claims, the Court declines to exercise supplemental jurisdiction over Counts Two and
Three, the state and city law claims.
A.

Race Discrimination Claims -- Title VII and § 1983

To survive a motion to dismiss in a Title VII discrimination case, “a plaintiff must
plausibly allege that (1) the employer took adverse action against him, and (2) his race, color,
religion, sex, or national origin was a motivating factor in the employment decision.” Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). This burden is “minimal.”
Id. at 86. A plaintiff is not required to plead facts establishing a prima facie case of
discrimination under the McDonnell Douglas framework, which applies on summary judgment.
Id. at 84; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). With
respect to discriminatory intent, at this initial stage, “[t]he facts required by Iqbal to be alleged in
the complaint need not give plausible support to the ultimate question of whether the adverse
employment action was attributable to discrimination. They need only give plausible support to

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a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297,
311 (2d Cir. 2015).
“[F]or a § 1983 discrimination claim to survive . . . a motion to dismiss, a plaintiff must
plausibly allege a claim under the same standards applicable to a Title VII claim -- and that the
adverse action was taken by someone acting ‘under color of state law.’” Vega, 801 F.3d at 88.
Thus, “[o]nce the color of law requirement is met, a plaintiff’s ‘equal protection claim parallels
his Title VII claim,’ except that a § 1983 claim, unlike a Title VII claim, can be brought against
an individual.” Id. (quoting Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004)).
Both the Title VII claim and the § 1983 equal protection claim are dismissed. The
Complaint alleges that Defendants took adverse employment actions -- suspended Plaintiff
without pay, significantly diminished his responsibilities, filed charges against him and fired him
-- at least in part because he is white.2 But the Complaint does not allege facts that plausibly
support this conclusion. “An inference of discrimination can arise from circumstances including,
but not limited to, the employer’s criticism of the plaintiff’s performance in ethnically degrading
terms; or its invidious comments about others in the employee’s protected group; or the more
favorable treatment of employees not in the protected group; or the sequence of events leading to
the plaintiff’s discharge.” Littlejohn, 795 F.3d at 312 (internal quotation marks omitted). “[A]n
inference of discrimination also arises when an employer replaces a terminated or demoted
employee with an individual outside the employee’s protected class.” Id. None of these
circumstances is alleged here. The Complaint does not allege that Defendants made racially
charged remarks, or treated non-white employees more favorably, or replaced Plaintiff with a

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Defendants do not dispute that Plaintiff was subjected to adverse employment action under
Title VII or § 1983, or that Defendant Zeigler was acting under color of state law. Consequently,
those issues are not addressed here.
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non-white employee. Nor does the Complaint allege facts -- as opposed to conclusory
statements and surmise -- that Plaintiff’s investigation and termination were motivated by his
being white.
As evidence of discriminatory intent the Complaint expressly pleads: (1) the NYPD’s
deviations from its procedure in investigating Plaintiff, (2) the background of perceived
discrimination against Defendant Zeigler’s husband in 2006, and his replacement as head of the
OCCB unit, which involved the hiring of an all-white team, including Plaintiff and (3) “the
NYPD continuing to prosecute [Plaintiff] long after it became clear that [he] was not guilty of
the [alleged] misconduct.” Even accepting as true the Complaint’s allegations that the charges
against Plaintiff were unfounded and that he was mistreated and wrongfully terminated, the
Complaint does not plead facts sufficient to suggest that any of this was because he is white.
The only allegations that bear on race regard Chief Zeigler -- not his wife Defendant
Zeigler or Plaintiff. Plaintiff argues that the Complaint adequately alleges that Defendant Zeigler
developed “a simmering animus” towards white officers, especially those Chief Izzo selected,
after her husband was replaced in 2006. Plaintiff further argues that Montijo’s complaint gave
Defendant Zeigler the opportunity to “exact” revenge. These arguments are fanciful and
unsupported by the alleged facts. First, although the Complaint alleges an “animus” between
Chief Zeigler and Chief Izzo, it does not allege any facts that plausibly support the inference that
the animus was race-based. Second, the 2008 incident that occurred while Chief Zeigler was offduty did not involve Chief Izzo or Plaintiff who at one time was on Izzo’s staff, and the incident
does not plausibly suggest that Chief Zeigler, much less his wife, developed racial animus
towards Chief Izzo or Plaintiff as a result. Finally, that Defendant Zeigler and her husband are
black and Plaintiff is white does not mean or plausibly suggest that any actions Defendant

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Zeigler took regarding Plaintiff were on account of his race. See Stephens-Buie v. Shinseki, No.
09 Civ. 2397, 2011 WL 2574396, at *5 (S.D.N.Y. June 27, 2011) (noting that the “mere fact”
that plaintiff’s race was different than those who caused the alleged adverse employment action
was insufficient to raise an inference of discriminatory intent); see also Yusuf v. Vassar Coll., 35
F.3d 709, 714 (2d Cir. 1994) (dismissing discrimination claim under 42 U.S.C. § 1981 where the
plaintiff “offered no reason to suspect that his being found guilty of sexual harassment had
anything to do with his race, other than his assertion that the panel members were white and that
he is Bengali”).
The timing of the alleged events also undercuts any plausible inference of discrimination.
While 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 . . . , courts in this circuit
have typically measured that gap as a matter of months, not years.” Bucalo v. Shelter Island
Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012); see, e.g., Meyer v. McDonald, No. 15
Civ. 1496, 2017 WL 1048104, at *11 (E.D.N.Y. Mar. 20, 2017) (“Each temporal analysis must
be made within the context of a case, but the . . . Second Circuit has determined that seven
months is not too long to establish a causal relationship, while fifteen months or two years is too
long.”). Here, roughly nine years elapsed between Chief Izzo’s replacing Chief Zeigler and the
Montijo incident. The temporal distance is too attenuated to support a reasonable inference that
Chief Izzo caused Chief Zeigler, and in turn Defendant Zeigler, to develop animus towards white
officers and then seek “revenge” against Plaintiff almost a decade later. Although Plaintiff
argues in his memorandum of law that Defendant Zeigler, the head of the EEO Office, lacked the
opportunity for almost nine years to “take action” against Plaintiff or other OCCB officers until

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the 2015 Montijo incident, the Complaint contains no factual allegations to support this
improbable contention.
The Complaint also alleges as evidence of discriminatory intent that Defendants failed to
follow regular procedures when investigating and charging Plaintiff. “Departures from
procedural regularity, such as a failure to collect all available evidence, can raise a question as to
the good faith of the process where the departure may reasonably affect the decision.” Tolbert v.
Smith, 790 F.3d 427, 438 (2d Cir. 2015) (internal quotation marks omitted). However, “the mere
fact that an employer failed to follow its own internal procedures does not necessarily suggest
that the employer was motivated by illegal discriminatory intent.” Harris v. Niagara Mohawk
Power Corp., 252 F.3d 592, 599 (2d Cir. 2001) (internal quotation marks and alteration omitted);
accord Thelwell v. City of New York, No. 13 Civ. 1260, 2015 WL 4545881, at *15 (S.D.N.Y.
July 28, 2015). Failure to follow internal procedures may as likely be the product of neglect or
personal hostility, as some unlawful discriminatory motive. The anti-discrimination laws do “not
make employers liable for doing stupid or even wicked things; it makes them liable for
discriminating.” Norton v. Sam’s Club, 145 F.3d 114, 120 (2d Cir. 1998).
Even assuming that the NYPD deviated from established procedures when it investigated
and charged Plaintiff, the Complaint fails to allege any facts that plausibly give rise to the
minimal inference that the NYPD did so at least in part because of Plaintiff’s race. See, e.g.,
Tolbert, 790 F.3d at 438 (plaintiff raised a genuine factual dispute as to intentional
discrimination by alleging procedural irregularities combined with remarks by decision maker
that “clearly suggest racial bias”); Stern v. Tr. of Columbia Univ., 131 F.3d 305, 313 (2d Cir.
1997) (noting that the plaintiff had produced sufficient evidence that employer “desired to hire a
woman or [Latino]” based in part on procedural deviations that favored women or Latino

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candidates, such as the employer offering a job “summarily to a woman without following any of
its usual procedures” or hiring the Latino candidate with “unusual rapidity”).
To show discriminatory intent, Plaintiff also relies on the myriad ways the Complaint
alleges Plaintiff was treated unfairly by the NYPD investigators, the DA, the Medical
Examiner’s Office, the EEO Office and the Departmental Advocate Office. These allegations,
even when coupled with the alleged procedural deviations, do not “nudge[]” the claims “across
the line from conceivable to plausible.” Twombly, 550 U.S. at 570; accord E.E.O.C. v. Port
Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014). To state a claim, Plaintiff must do more
than simply “cite to [his alleged] mistreatment and ask the court to conclude that it must have
been related to [his] race.” Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 235 (2d Cir. 2002);
accord Howard v. City of New York, 602 F. App’x 545, 548 (2d Cir. 2015) (summary order).
In sum, the Complaint does not “plausibly give rise to an inference of unlawful
discrimination.” Vega, 801 F.3d at 87. The Title VII and § 1983 equal protection claims are
dismissed. Because the Complaint fails to state a claim, Defendants’ argument for dismissal
based on collateral estoppel is not addressed.
B.

Monell Claim

The Complaint alleges that the City is liable because its deliberate indifference led to the
violation of Plaintiff’s constitutional rights. In order to hold a municipality liable for a
constitutional violation under § 1983, a plaintiff must demonstrate that “the deprivation of the
plaintiff’s rights under federal law is caused by a governmental custom, policy, or usage of the
municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436
U.S. at 690–91); accord Mitchell v. City of New York, 841 F.3d 72, 80 (2d Cir. 2016).

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As explained, the Complaint does not allege that Plaintiff’s rights under the Equal
Protection Clause, or any constitutional provision, were violated. Because the Complaint does
not adequately allege an underlying constitutional violation, his Monell claim fails. See Segal v.
City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (holding that if court “properly found no
underlying constitutional violation,” it was not necessary to consider claims of municipal
liability under Monell); Cohen v. Walcott, No. 13 Civ. 9181, 2017 WL 2729091, at *5 (S.D.N.Y.
June 23, 2017) (“Where, as here, a plaintiff fails to establish an underlying constitutional
violation there can be no liability under Monell.”).
C.

NYSHRL and NYCHRL Claims

Plaintiff’s remaining discrimination claims arise under state and city law. A district court
may decline to exercise supplemental jurisdiction over the claims arising under state and city law
if the court “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.
§ 1367(c)(3). In considering whether to exercise its discretion, courts must weigh considerations
of “[judicial] economy, convenience, fairness, and comity.” Jones v. Ford Motor Credit Co.,
358 F.3d 205, 214 (2d Cir. 2004). These factors will usually lead to dismissal of the non-federal
claims when the federal claims have been dismissed at a relatively early stage. See CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Here, both federal claims against Defendants
are dismissed on a Rule 12(b)(6) motion before significant discovery has taken place. It is
therefore appropriate to decline to exercise supplemental jurisdiction. See, e.g., Cromwell-Gibbs
v. Staybridge Suite Times Square, No. 16 Civ. 5169, 2017 WL 2684063, at *8 (S.D.N.Y. June
20, 2017) (declining to exercise supplemental jurisdiction over Plaintiff’s NYSHRL and
NYCHRL claims after dismissing federal claims under Rule 12(b)(6)). Plaintiff’s state and city
law claims are dismissed without prejudice to refiling in state court.

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CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. The Clerk of
Court is respectfully directed to close the motion at Docket Number 19 and close the case.
Dated: July 5, 2017
New York, New York

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