Velez v. New York City Police Department et al
Filing
34
OPINION AND ORDER re: 25 MOTION to Dismiss the Complaint. filed by City Of New York, Anthony Garvey, New York City Police Pension Fund Article II, New York City Police Department. For the reasons explained above, Defendants 9; motion to dismiss Velez's complaint is GRANTED without prejudice. If Velez wishes to file an amended complaint to attempt to cure the defects in his claims, Velez must move to do so by April 21, 2019, and he must attach to his motion a copy o f the proposed amended complaint. Failure to move to amend within the timeframe provided shall result in dismissal of Velez's claims with prejudice. The Clerk of Court is respectfully directed to terminate the motion, Doc. 25. SO ORDERED. (Amended Pleadings due by 4/21/2019.) (Signed by Judge Edgardo Ramos on 3/27/2019) (kv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANCISCO VELEZ,
Plaintiff,
- against NEW YORK CITY POLICE PENSION FUND ARTICLE II;
ANTHONY GARVEY, Former Director, New York City
Police Pension Fund Article II, individually and in his official
capacity as an employee of the CITY OF NEW YORK, and
the ARTICLE II NEW YORK CITY POLICY PENSION
FUND; the NEW YORK CITY POLICE DEPARTMENT;
and the CITY OF NEW YORK,
OPINION AND ORDER
18 Civ. 1366 (ER)
Defendants.
Ramos, D.J.:
Francisco Velez served as a uniformed member of the New York City Police Department
(“NYPD”) from 1969 through his retirement in 2003. In 2007, he applied for certain benefits
that officers who had participated in the World Trade Center rescue and recovery efforts are
eligible to receive. The board of trustees responsible for determining Velez’s eligibility for
benefits denied his application. Velez applied twice more, and he was denied twice more.
Velez believes that the board’s denials of his applications constitute racial discrimination
and retaliation attributable to Anthony Garvey, a former member of the board. Velez claims that
Garvey improperly influenced the board to exact revenge against Velez, who successfully sued
the NYPD in the early 1990s.
After Velez’s application was denied for the third time, Velez filed the instant complaint
against Garvey, the City of New York (the “City”), the NYPD, and the pension fund from which
the benefits at issue are disbursed. The defendants now move to dismiss Velez’s complaint in
its entirety. Doc. 25. For the reasons explained below, the motion is GRANTED.
I.
BACKGROUND
A.
Factual Background1
Velez, a self-described “Latin-American male,” is a retired member of the NYPD. Doc.
1 ¶¶ 1, 75. In 1990, Velez, “along with the largest number of Latino, minority, and female
applicants for promotion to the rank of Lieutenant who had ever passed the promotion
examination at that time,” filed an article 78 petition against the City and the NYPD in the
Supreme Court of New York. 2 Id. ¶ 17; see Velez v. White, Index No. 010346-1990 (N.Y. Sup.
Ct. N.Y. Cty. May 31, 1990) [hereinafter “Velez I”].3 The Velez I plaintiffs alleged that the
NYPD’s promotional process was discriminatory. Doc. 1 ¶¶ 17–18. As relief, the plaintiffs
sought reinstatement onto the list of NYPD members eligible for promotion to the rank of
Lieutenant. Id. The Lieutenant’s Benevolent Association of the NYPD (the “LBA”), moved to
intervene in Velez I, as any disposition thereof would have directly impacted its membership.
Id.; see also Doc. 26-2 at 64–65, 83. During the course of Velez I, Anthony Garvey served as
LBA President. Doc. 1 ¶ 18.
The parties settled in 1992. Id. In connection with that settlement, Velez met with
several representatives of the City, including Garvey. Id. Velez demanded that the NYPD
reinstate the Velez I plaintiffs to the list of officers eligible for promotion to the rank of
The following facts are drawn from the allegations in Velez’s complaint, which the Court accepts as true in
evaluating Defendants’ motion to dismiss. Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012). The
Court also draws from and considers documents incorporated by reference therein. DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
1
“In New York, Article 78 is a method for challenging state administrative action.” Davis v. Halpern, 813 F.2d 37,
38 n.1 (2d Cir. 1987).
2
3
The Court takes judicial notice of Velez I and other relevant state-court litigation involving Velez, not for the truth
of the factual matters asserted therein but rather to establish the fact of such litigation and any filings related thereto.
See Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992).
2
Lieutenant. Id. However, the LBA pushed back on Velez’s demand, and during this meeting
Garvey warned him that “[t]he Police Department remembers its friends and never forgets its
enemies.” Id.
Following the conclusion of Velez I, Velez continued to work at the NYPD until his
retirement in 2003. Id. ¶ 16. Unfortunately, Velez eventually was diagnosed with throat cancer.4
Id. ¶ 19. Velez believes his throat cancer is attributable to his work as a first responder in the
aftermath of the tragic terrorist attack on September 11, 2001, at the World Trade Center. Id.
In 2007, four years after retiring, Velez applied for “accidental disability retirement”
benefits (“ADR benefits”) under the World Trade Center Law (“WTC Law”), N.Y.C. Admin.
Code § 13-252.1. ADR benefits are disbursed from the New York City Police Pension Fund (the
“Pension Fund”). A brief overview of the Pension Fund’s regulatory scheme is provided below.
The Pension Fund is administered by a Board of Trustees (the “Board”). See id. §§ 13202(a), 206. An applicant’s eligibility for ADR benefits is determined by a two-step process.
“Initially, the [P]ension [F]und’s Medical Board conducts a physical examination, interviews the
applicant, and reviews the submitted evidence, before submitting a recommendation to the Board
of Trustees.” Stavropoulos v. Bratton, 50 N.Y.S.3d 2, 5 (App. Div. 1st Dep’t 2017); see N.Y.C.
Admin. Code § 13-206(e) (“The board of trustees shall have the power to grant, award or pay a
pension on account of physical or mental disability or disease, only upon a certificate of a
medical board or a special medical board after examination . . . .”). “In the second step, the
Board votes to either grant or deny ADR benefits.” Stavropoulos, 50 N.Y.S.3d at 5. The
Board’s ultimate responsibility is to determine whether the applicant “is physically or mentally
incapacitated for the performance of city-service as a natural and proximate result of an
4
The record before the Court does not indicate when Velez was diagnosed with cancer.
3
accidental injury received in such city-service while a member, and that such disability was not
the result of wilful negligence on the part of such member.” N.Y.C. Admin. Code § 13-252.
The Board consists of twelve members: (1) the police commissioner, who is also the
chairperson of the Board; (2) the City’s comptroller; (3) a representative appointed by the mayor;
(4) the City’s finance director; (5) the president of the City’s Patrolmen’s Benevolent
Association (i.e., the NYPD police officer union); (6) the first vice-president of the City’s
Patrolmen’s Benevolent Association; (7) the second vice-president of the City’s Patrolmen’s
Benevolent Association; (8) the chairperson of the Board of the City’s Patrolmen’s Benevolent
Association; (9) the president of the NYPD’s Captains Endowment Association (i.e., the union
representing NYPD officers with the rank of captain, deputy inspector, inspector, deputy chief,
and surgeon); (10) the president of the LBA; (11) the president of the City’s Sergeants’
Benevolent Association; and (12) the president of the City’s Detectives’ Endowment
Association. Id. § 13-216. Every action by the Board, excepting actions related to budget and
investment matters, must be adopted with the support of at least seven votes. Id.
“A claimant filing for ADR benefits ordinarily has the burden of proving causation in an
administrative proceeding. But as part of the [New York State] legislature’s response to the
World Trade Center tragedy, a new statute was enacted creating a presumption in favor of ADR
benefits for police officers who performed rescue, recovery or cleanup operations at specified
locations, including the World Trade Center . . . .” Bitchatchi v. Bd. of Trs. of N.Y.C. Police
Dep’t Pension Fund, 982 N.E.2d 600, 602 (N.Y. 2012) (citing N.Y.C. Admin. Code § 13252.1(1)(a)). This statute, also known as the WTC Law, provides for a rebuttable presumption
of benefits eligibility for certain applicants:
4
[I]f any condition or impairment of health is caused by a qualifying World Trade
Center condition . . . , it shall be presumptive evidence that it was incurred in the
performance and discharge of duty and the natural and proximate result of an
accident not caused by such member’s own willful negligence, unless the contrary
be proved by competent evidence.
N.Y.C. Admin. Code § 13-252.1(1)(a). “Under the WTC presumption, the [P]ension [F]und
bears the initial burden of proving that a claimant’s qualifying condition was not caused by the
hazards encountered at the WTC site.” Bitchatchi, 982 N.E.2d at 602. Of course, before such
presumption applies, the applicant must show that he or she suffers from a “qualifying World
Trade Center condition.” A qualifying World Trade Center condition is defined, in part, as “a
qualifying condition or impairment of health resulting in disability to a member who participated
in World Trade Center rescue, recovery or cleanup operations for a qualifying period.” N.Y.
Retire. & Soc. Sec. Law § 2(36)(b) (emphases added). A qualifying condition includes “disease
of the upper respiratory tract,” including throat cancer. Id. § 2(36)(c). And the qualifying period
is defined as “(i) any period of time within the forty-eight hours after the first airplane hit the
towers,” or (ii) “a total of forty hours accumulated any time between September [11, 2001] and
September [12, 2002].” Id. § 2(36)(g).
Returning to the instant dispute, Velez first applied for ADR benefits in May 2007. Doc.
1 ¶ 22. In connection with his application, Velez submitted three affidavits from fellow officers
who attested to Velez’s presence at the World Trade Center site during the qualifying period. Id.
¶¶ 26–30. The Pension Fund’s Medical Board interviewed and examined Velez and
recommended approval of his application. Id. ¶ 24. However, after meeting on several
occasions to discuss Velez’s application, the Board concluded that they were unable to verify
that Velez participated in the World Trade Center rescue, recovery, or cleanup operations. Id.
Consequently, the Board denied his application on November 12, 2008. Id. ¶¶ 24, 31.
5
Unsatisfied with the Board’s decision, Velez filed an article 78 petition in the Supreme
Court of New York, challenging the Board’s decision as arbitrary and capricious. Velez v. Kelly,
Index No. 101597-2009, 2009 N.Y. Misc. LEXIS 5556 (N.Y. Sup. Ct. N.Y. Cty. Oct. 19, 2009)
[hereinafter “Velez II”]; see also Doc. 26-3 at 160–73. On October 19, 2009, the state court
denied Velez’s challenge, concluding , inter alia, (1) that “there [wa]s sufficient credible
evidence that [Velez]’s medical condition, although disabling, d[id] not comply with the WTC
Disability Law requirements that he have worked 40 hours at the WTC site,” and (2) that
“[Velez]’s argument that the Board failed to provide him with a fair and reasonable opportunity
to establish his entitlement lack[ed] merit.” See Velez II, 2009 N.Y. Misc. LEXIS 5556, at *9,
*12.
On May 31, 2011, the Supreme Court of New York, Appellate Division, First
Department, affirmed. In so affirming, the First Department concluded that (1) “[c]redible
evidence supported the conclusion that [Velez]’s disability was not caused by a service-related
accident” and (2) “the record demonstrate[d] that [Velez] failed to raise the presumption that his
disability was incurred in the performance and discharge of duty and the natural and proximate
result of an accident not caused by such member's own willful negligence.” Velez v. Kelly, 923
N.Y.S.2d 837, 837–38 (App. Div. 1st Dep’t 2011) (citations omitted).
On November 26, 2012, Velez filed a second application for ADR benefits. Doc. 1 ¶¶
32–36. Again, the Medical Board recommended approval of his application. Id. ¶ 32. Again,
however, the Board of Trustees denied his application. Id. ¶ 37.
6
On February 26, 2016, Velez filed a third application for ADR benefits. Id. ¶ 38. On
March 8, 2017, the Board denied his third application.5 Id. ¶ 41.
Following the Board’s denial of his third application, Velez filed a charge of
discrimination with the Equal Employment Opportunity Commission (the “EEOC”). Id. ¶¶ 14–
15; see also Doc. 26-6.6 In his EEOC charge, Velez alleged that the NYPD and the Pension
Fund discriminated and retaliated against him from November 12, 2008—the date of the Board’s
denial of his first application—through March 8, 2017—the date of the Board’s denial of his
third application. Doc. 26-6 at 5.
B.
Procedural History
Velez filed the instant action on February 15, 2018. Doc. 1. In his nine-count complaint,
Velez asserts claims against Garvey, the City, the NYPD, and the Pension Fund (collectively,
“Defendants”) for retaliation, in violation of both Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981; race and color discrimination in violation of Title
VII and 42 U.S.C. §§ 1981 and 1983; hostile work environment, in violation of Title VII and 42
U.S.C. §§ 1981 and 1983; and conspiracy to interfere with civil rights, in violation of 42 U.S.C.
§§ 1981 and 1985(3).7
The Court notes that Velez’s complaint states that the Board denied his application on March 8, 2018, not 2017.
Doc. 1 ¶ 41. The Court suspects that this date is a scrivener’s error, as March 8, 2018, would come after Velez’s
EEOC charge of discrimination, which was filed on December 7, 2017. See Doc. 26-6 at 5.
5
Defendants have produced a copy of Velez’s EEOC charge, which is incorporated into Velez’s complaint by
reference. See Doc. 1. ¶ 14; Doc. 26-6.
6
7
In their moving papers, the parties both reference a claim alleged by Velez under New York State Human Rights
Law (NYSHRL). The Court notes that Velez never alleged such a claim in the instant complaint. Rather, Velez’s
complaint makes only a passing reference to such a claim while setting forth the jurisdictional basis for the
complaint. See Doc. 1 ¶ 4 (“The pendent jurisdiction of the Federal District Court is invoked with respect to
plaintiff’s claims under New York State Executive Law § 296, pursuant to 28 U.S.C. § 1367, because the entire
action before the court comprises one constitutional and civil rights case, and the claims arise out of the same
common nucleus of facts and are such that the plaintiff would ordinarily be expected to try them in one judicial
proceeding.” (emphasis added)). Regardless, the Court concludes that any claim under NYSHRL would fail for
substantially the same reasons Velez’s other claims fail, as discussed infra.
7
Velez alleges that other applicants have been awarded ADR benefits based on similar
amounts of evidence he proffered to the Board. Doc. 1 ¶ 43. Velez also alleges that Garvey has
“improperly influenced the outcome” of his ADR applications in retaliation for Velez’s prior
lawsuit against the City and NYPD. Id. ¶ 44. However, Velez’s complaint does not allege how
Garvey influenced the outcome of his applications.
On August 3, 2018, Defendants filed a pre-answer motion to dismiss Velez’s complaint
pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Doc. 25.
II.
STANDARD OF REVIEW
“To survive a motion to dismiss, 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 is
facially plausible “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. Although a
plaintiff must allege sufficient facts to show “more than a sheer possibility that a defendant has
acted unlawfully,” id., “a complaint . . . does not need detailed factual allegations” to survive a
motion to dismiss, Twombly, 550 U.S. at 555.
The question on a motion to dismiss “is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims.” Sikhs for Justice v.
Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien,
56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) is
to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for
relief without resolving a contest regarding its substantive merits” or “weigh[ing] the evidence
that might be offered to support it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011)
8
(citations and internal quotation marks omitted). Consequently, when ruling on a motion to
dismiss pursuant to Rule 12(b)(6), the Court accepts all plausible and nonconclusory factual
allegations in the complaint as true and draws all reasonable inferences in the plaintiff’s favor.
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014); see also Twombly, 550 U.S. at 556 (“[A] wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable. . . .”). “For purposes of this rule, the complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by
reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (internal quotation
marks omitted).
III.
DISCUSSION
A.
Velez’s Claims against the NYPD are Dismissed
Defendants argue that Velez’s claims against the NYPD must be dismissed because the
NYPD is not a suable entity. See Doc. 27 at 2 n.1. Velez does not oppose dismissal of his
claims against the NYPD, and, in any event, the Court agrees with Defendants. See Johnson v.
City of New York, 15 Civ. 6915 (ER), 2019 WL 294796, at *4 (S.D.N.Y. Jan. 23, 2019). Hence,
Velez’s claims against the NYPD are dismissed.
B.
Collateral Estoppel Does Not Bar Velez’s Claims in this Action
Defendants argue that the doctrine of collateral estoppel (i.e., issue preclusion) bars Velez
from raising any of his claims related to the Board’s denial of Velez’s first application for ADR
benefits because “the factual issues surrounding the denial of [Velez]’s first application for ADR
benefits were judicially litigated in [Velez II]; [Velez] had a full and fair opportunity to litigate
those issues; and their resolution was necessary to support a valid and final judgment on the
9
merits.” Doc. 27 at 10 (citing Latino Officers Ass’n v. City of New York, 253 F. Supp. 2d 771,
783 (S.D.N.Y. 2003)). This argument is meritless.
“The Second Circuit has made clear that Article 78 proceedings do not bar subsequent
§ 1983 civil rights actions under principles of res judicata or collateral estoppel where (i) the
plaintiff made no more than a fleeting reference to discrimination in his Article 78 petition and
(ii) the issue of discrimination was neither considered nor rejected in holding that the plaintiff’s
termination was supported by substantial evidence.” Warmin v. N.Y.C. Dep’t of Educ., No. 16
civ. 8944 (KPF), 2018 WL 1441382, at *10 (S.D.N.Y. Mar. 22, 2018) (citing Abdelal v. Kelly,
726 F. App’x 8, 10–11 (2d Cir. 2018) (summary order)). Here, Defendants contend that the crux
of the instant action remains the same as in Velez II. Yet in their moving papers Defendants
readily admit that Velez did not raise claims of discrimination or retaliation in Velez II. See Doc.
27 at 19. The Court therefore concludes that Velez’s claims are not precluded. 8 See Abdelal,
726 F. App’x at 10–11 (“Here, defendants do not meet their burden of showing that the identical
issues had been decided in the Article 78 proceeding. . . . The fact that the First Department
concluded that the administrative record contained ‘substantial evidence to support the finding
that petitioner engaged in conduct prejudicial to the good order, efficiency and discipline of the
NYPD,’ does not mean that the court considered and rejected Abdelal’s claims that he was
subjected to harassment and disproportionate punishment for discriminatory reasons.” (citation
omitted)); Goonewardena v. N.Y. State Workers’ Comp. Bd., No. 09 Civ. 8244 (HBP), 2016 WL
7439414, at *8 (S.D.N.Y. Feb. 9, 2016) (collecting cases), report and recommendation adopted,
No. 09 Civ. 8244 (RA), 2016 WL 7441695 (S.D.N.Y. Dec. 22, 2016).
For similar reasons, the Court rejects Defendants’ argument that Velez’s claims constitute a thinly veiled challenge
to the Board’s denials of his applications and are thus procedurally improper and time-barred. See Doc. 27 at 14–16.
8
10
C.
Velez’s Title VII Claims Fail
1. Velez’s Title VII Claims against Garvey and the Pension Fund are Dismissed
Velez’s Title VII claims against Garvey are dismissed because Title VII “does not create
liability in individual supervisors and co-workers who are not the plaintiffs’ actual employers.”
Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014).
Velez’s claims are also dismissed as to the Pension Fund, an entity Velez neither alleges
he worked for nor alleges he sought employment from nor alleges any other facts that would
suggest the existence of an employer-employer relationship. See Gulino v. N. Y. State Educ.
Dep’t, 460 F.3d 361, 377–78 (reiterating that existence of employer-employee relationship in
Title VII context requires adherence to common law agency principles); cf. N.Y.C. Admin. Code
§ 13-216(e)(5) (“The pension fund shall be considered an entity separate from the city of New
York police department. The board of trustees of the pension fund shall work closely with the
city of New York police department.”).
2. Velez’s Claim for Retaliation under Title VII Fails
Velez’s claim for retaliation is time-barred insofar as the claim is based on incidents that
occurred before January 11, 2017—that is, 300 days prior to his EEOC charge, which was first
filed on November 7, 2017. See Doc. 1 ¶ 14. In New York, “[a]n aggrieved employee wishing
to bring a Title VII claim in district court must file an administrative complaint with the EEOC
within 300 days of the alleged discriminatory act.” Petrosino v. Bell Atl., 385 F.3d 210, 219 (2d
Cir. 2004); see 42 U.S.C. § 2000e-5(e). Here, Velez initially filed an EEOC charge on
November 7, 2017, and he filed a corrected charge on December 7, 2017, “based on the same
essential facts.” Doc. 1 ¶ 14. In his EEOC charge, Velez alleged discrimination from as early as
November 12, 2008—the date the Board first denied Velez’s application for ADR benefits—
11
through March 8, 2017—presumably the date the Board denied his application for the third time.
Doc. 26-6. Because the Board’s first two denials occurred more than 300 days before Velez filed
an EEOC charge, his retaliation claim is time-barred insofar as it relies upon those denials as
adverse employment actions.9
To rescue his claims from Title VII’s statutory limitations period, Velez argues that the
Board’s denials of his first two applications are subject to the “continuing violation” doctrine.
See Doc. 32 at 10–13. Not so. “The continuing violation doctrine, where applicable, provides an
‘exception to the normal knew-or-should-have-known accrual date.’” Gonzalez v. Hasty, 802
F.3d 212, 220 (2d Cir. 2015) (quoting Harris v. City of New York, 186 F.3d 243, 248 (2d Cir.
1999)). Under this doctrine, “if a Title VII plaintiff files an EEOC charge that is timely as to any
incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of
acts of discrimination under that policy will be timely even if they would be untimely standing
alone.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155–56 (2d Cir. 2012) (internal
quotation marks omitted). The continuing violation doctrine applies only to claims “composed
of a series of separate acts that collectively constitute one unlawful practice.” Hasty, 802 F.3d at
220 (internal quotation marks and alterations omitted). As such, the doctrine generally applies to
hostile work environment claims, given that prosecution of such claims requires plaintiffs to
show that “under the totality of the circumstances, the alleged conduct was so ‘severe or
pervasive as to create an objectively hostile or abusive work environment,’” Hasty, 802 F.3d 212
at 220 (internal quotation marks omitted), and conduct generally “must be repeated or ongoing
before it is adequately severe or pervasive to constitute a violation,” id.
“It is well established, however, that so long as at least one alleged adverse employment action occurred within the
applicable filing period, evidence of an earlier alleged retaliatory act may constitute relevant background evidence in
support of that timely claim.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 150 (2d Cir. 2012) (alterations and
internal quotation marks omitted).
9
12
However, “the continuing violation doctrine does not apply to discrete unlawful acts,
even if the discrete acts were undertaken ‘pursuant to a general policy that results in other
discrete acts occurring within the limitations period.’” Rivas v. N.Y. State Lottery, 745 F. App’x
192, 193 (2d Cir. 2018) (summary order) (emphasis added) (quoting Chin, 685 F.3d at 157). In
National Railroad Passenger Corp. v. Morgan, the Supreme Court illustrated the difference
between discrete acts and acts giving rise to the continuing violations doctrine:
Discrete acts such as termination, failure to promote, denial of transfer, or refusal
to hire are easy to identify. Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable “unlawful
employment practice.” . . . Hostile environment claims are different in kind from
discrete acts. Their very nature involves repeated conduct. The “unlawful
employment practice” therefore cannot be said to occur on any particular day. It
occurs over a series of days or perhaps years and, in direct contrast to discrete
acts, a single act of harassment may not be actionable on its own.
536 U.S. 101, 114–15 (2002) (citations omitted). “A discrete retaliatory or discriminatory act
occurred on the day that it happened. A party, therefore, must file a charge within . . . 300 days
of the date of the act or lose the ability to recover for it.” Id. at 110 (internal quotation marks
omitted).
Here, the retaliatory acts alleged by Velez—i.e., the Board’s denials of his applications
for ADR benefits—plainly fall within the category of discrete acts. See Humphreys v. N.Y.C.
Health & Hosps. Corp., No. 16 Civ. 9707 (VSB), 2018 WL 3849836, at *4 (S.D.N.Y. Aug. 18,
2018) (concluding that repeated denial of wages are discrete acts that do not form the basis for a
continuing violation claim); Stewart v. City of New York, No. 11 Civ. 6935 (CM), 2012 WL
2849779, at *8 (S.D.N.Y. July 10, 2012) (“Like promotion, the failure to give benefits is
generally a discrete act.”); Gaston v. N.Y.C. Dep’t of Health Office of Chief Med. Exam’r, 432 F.
Supp. 2d 321, 328 (S.D.N.Y. 2006) (finding claims predicated on “denial of rights and benefits
of employment” constitute discrete acts subject to Title VII’s 300-day filing period). Hence, the
13
continuing violation doctrine is inapplicable, and the retaliatory acts alleged by Velez are timebarred insofar as they occurred more than 300 days prior to Velez’s EEOC charge.
Velez’s complaint also fails to state a claim for retaliation on the merits. “To establish a
presumption of retaliation at the initial stage of a Title VII litigation, a plaintiff must present
evidence that shows (1) participation in a protected activity; (2) that the defendant knew of the
protected activity; (3) an adverse employment action; and (4) a causal connection between the
protected activity and the adverse employment action.” Littlejohn v. City of New York, 795 F.3d
297, 315–16 (2d Cir. 2015) (internal quotation marks omitted). “In this context, retaliation must
be a ‘but-for’ cause of the adverse employment action.” Moy v. Perez, 712 F. App’x 38, 40 (2d
Cir. 2017) (summary order) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90
(2d Cir. 2015)).
Here, Velez fails to allege a plausible causal connection between his alleged protected
activity10—i.e., his participation in a lawsuit against the NYPD in the early 1990s—and the
timely adverse employment action alleged—i.e., the Board’s third denial of his application for
ADR benefits in 2017. “Close temporal proximity between the plaintiff’s protected action and
the employer’s adverse employment action may in itself be sufficient to establish the requisite
causal connection between a protected activity and retaliatory action.” Kaytor v. Elec. Boat
Corp., 609 F.3d 537, 552 (2d Cir. 2010). However, as the Supreme Court has observed, “[t]he
cases that accept mere temporal proximity between an employer’s knowledge of protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case [of retaliation] uniformly hold that the temporal proximity must be very close.” Clark
Defendants argue that Velez’s participation in Velez I does not constitute protected activity for Title VII purposes
because Velez I was “devoid of any contention of discrimination based on race or any other protected characteristic.”
Doc. 27 at 18–19. However, because Velez’s retaliation claim fails on other grounds, at this time the Court need
not, and thus does not, resolve whether Velez’s participation in Velez I constitutes protected activity.
10
14
Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (internal quotation marks omitted); see also
id. (observing that “[a]ction taken . . . 20 months later suggests, by itself, no causality at all”).
Here, in support of his retaliation claim, Velez alleges that “the City, through its agents,
including [] Garvey, engaged in various retaliatory actions . . . as a result of his opposition to
race and color discrimination and as a result of his filing such complaints with the NYPD and the
New York State Supreme Court.” Doc. 1 ¶ 47. But Velez’s suit against the NYPD settled in
1992. And the Board denied his third application for ADR benefits more than twenty years later.
Consequently, without more plausible and nonconclusory factual allegations, Velez’s challenged
adverse employment action is too attenuated from his alleged protected activity to state a claim
for relief under Title VII. See Brown v. City of New York, 622 F. App’x 19, 20 (2d Cir. 2015)
(summary order) (“The time lapses between Brown’s protected activities and the alleged
retaliatory acts—ranging from two months to several years—were simply too attenuated to
establish that the alleged adverse employment actions were the product of a retaliatory motive
absent other supporting factual allegations”); Sanchez v. Conn. Nat. Gas Co., 421 F. App’x 33,
35 (2d Cir. 2011) (summary order) (finding insufficient evidence to support an inference that a
causal connection exists between protected speech that occurred at least two years prior to
adverse employment action); Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999) (“[S]ince two
years elapsed between [the plaintiff’s allegedly protected activity] and his discharge, no
inference of causation is justified.”). His retaliation claim is therefore dismissed.
3. Velez’s Claims for Race and Color Discrimination under Title VII Fail
Much like Velez’s claim for retaliation, Velez’s for race and color discrimination are
time-barred insofar as the claims are based the Board’s first two denials of his applications.
15
Velez’s discrimination claims also fail on the merits. “The ultimate issue in an
employment discrimination case is whether the plaintiff has met her burden of proving that the
adverse employment decision was motivated at least in part by . . . a discriminatory reason.”
Stratton v. Dep’t for the Aging for N.Y., 132 F.3d 869, 878 (2d Cir. 1997) (internal quotation
marks omitted). “At the pleadings stage, then, a plaintiff must allege that the employer took
adverse action against her at least in part for a discriminatory reason, and she may do so by
alleging facts that directly show discrimination or facts that indirectly show discrimination by
giving rise to a plausible inference of discrimination.” Vega, 801 F.3d at 87. “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 (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir.
2009)).
Here, Velez fails to allege any plausible and nonconclusory facts to support an inference
of discrimination. A charitable reading of Velez’s complaint reveals only the following
nonconclusory factual allegations: (1) In 1992, following Velez’s participation in a
discrimination suit against the NYPD, Garvey warned Velez that the NYPD “never forgets its
enemies;” (2) over twenty years later, on three separate occasions, the 12-member Board denied
Velez’s applications for ADR benefits; and (3) there are other applicants who have been awarded
benefits based on similar evidence Velez proffered to the Board. However, none of these
allegations, without more, gives rise to a plausible inference of racial or color discrimination.
See Littlejohn, 795 F.3d at 312. What’s more, while Velez alleges that Garvey “improperly
16
influenced the outcome” of his ADR benefits applications, Velez fails to support this conclusory
allegation with any factual allegations suggesting that Garvey played any role in consideration of
Velez’s applications.11
4. Velez’s Claim for Hostile Work Environment under Title VII Fails
Velez’s claim for hostile work environment fails on the merits. The Court’s reasoning
here is straightforward. Velez was retired during the incidents he claims created a hostile work
environment, and it is axiomatic that a plaintiff must be working to suffer from a hostile work
environment. In his complaint, Velez alleges that he retired from the NYPD in 2003, Doc. ¶ 16;
that he did not apply for ADR benefits until 2007, id. ¶ 22; and that he last applied for ADR
benefits in 2016, id. ¶ 39. To succeed on a hostile work environment claim, a plaintiff must
show that “the workplace was so severely permeated with discriminatory intimidation, ridicule,
and insult that the terms and conditions of her employment was thereby altered.” Alfano v.
Costello, 294 F.3d 365, 373 (2d Cir. 2004) (emphases added). In other words, any incidents
giving rise to the hostile work environment claim must have occurred during the plaintiff’s
employment. Given that the Board’s denials of Velez’s applications for ADR benefits occurred
wholly outside of any “workplace” and occurred fourteen years after termination of his
employment relationship with the City, assuming arguendo the Board’s denials of his
applications amounted to “discriminatory intimidation, ridicule, and insult” (a conclusion that
does not appear plain to the Court), Velez’s hostile work environment claim nevertheless fails.
11
The Court observes further that whereas Velez alleges that Garvey was LBA President in the 1990s, and whereas
the LBA President is entitled to vote on an applicant’s eligibility for ADR benefits, see supra Part I.A., Velez does
not allege that Garvey served as LBA President during the Board’s consideration of Velez’s applications. And
Defendants, for their part, have proffered NYPD press releases stating that Garvey vacated his role as LBA
President months before the Board’s consideration of Velez’s first application. Doc. 27 at 7–8 & nn.8–9. The Court
takes judicial notice of these press releases. See In re Foreign Exch. Benchmark Rates Antitrust Litig., 74 F. Supp.
3d 581, 589 n.4 (S.D.N.Y. 2015) (collecting cases).
17
D.
Velez’s Claims under §§ 1981, 1983, and 1985 Fail
Most of the core substantive standards that apply to Velez’s claims of discriminatory
conduct in violation of Title VII are also applicable to claims of employment discrimination in
violation of §§ 1981, 1983, and 1985. Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir.
2004); see also Gonzalez v. City of New York, 354 F. Supp. 2d 327, 330 n.2 (S.D.N.Y. 2005).
However, there are some material differences between the latter standards and Title VII.
First, claims under §§ 1981, 1983, and 1985 need not be asserted within the 300-day
period applicable to Title VII claims. Instead, in New York the statute of limitations applicable
to such claims is three years. Id. at 225; see also Paige v. Police Dep’t of Schenectady, 264 F.3d
197, 1999 n.2 (2d Cir. 2001). Accordingly, Velez’s claims under §§ 1981, 1983, and 1985 are
time-barred insofar as they are based on actionable incidents that occurred before February 14,
2015—three years prior to Velez’s commencement of this action on February 15, 2018. Given
that the Board’s first two denials of Velez’s applications occurred prior to February 15, 2015,
those denials are not actionable.
Second, “when the defendant sued for discrimination under § 1981 or § 1983 is a
municipality—or an individual sued in his official capacity—the plaintiff is required to show that
the challenged acts were performed pursuant to a municipal policy or custom.” Patterson, 375
F.3d at 226 (citations omitted). Moreover, “an individual may be held liable under §§ 1981 and
1983 only if that individual is ‘personally involved in the alleged deprivation.’” Littlejohn, 795
F.3d at 314.
Here, Velez does not allege that any of the municipal defendants acted pursuant to a
municipal policy or custom. And while Velez claims that Garvey “improperly influenced the
18
outcome” of his ADR applications, such a conclusory allegation, without more, is insufficient to
show personal involvement. Accordingly, Velez’s §§ 1981 and 1983 claims fail.
Third, whereas “Title VII claims are not cognizable against individuals, individuals may
be held liable under §§ 1981 and 1983 for certain types of discriminatory acts, including those
giving rise to a hostile work environment.” Id. at 226. Consequently, Velez’s hostile work
environment claims against Garvey, sued in his individual capacity under §§ 1981 and 1983, are
not automatically subject to dismissal. See id. However, such claims nevertheless fail under §§
1981 and 1983 for the same reasons they fail under Title VII, see supra. And Velez’s claims for
retaliation and race and color discrimination under § 1981 fail for the same reasons they fail
under Title VII, see supra.
Finally, Velez’s claims under §§ 1983 and 1985 alleging that Defendants conspired to
discriminate against him fail. The standards for conspiracy under §§1983 and 1985(3) are
substantially similar. “To survive a motion to dismiss on [a] § 1983 conspiracy claim, [the
plaintiff] must allege (1) an agreement between a state actor and a private party; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal
causing damages.” Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324–25 (2d Cir. 2002).
Likewise, “[t]o state a cause of action under § 1985(3), a plaintiff must allege (1) a conspiracy
(2) for the purpose of depriving a person or class of persons of the equal protection of the laws,
or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the
conspiracy; and (4) an injury to the plaintiff’s person or property, or a deprivation of a right or
privilege of a citizen of the United States.” Traggis v. St. Barbara’s Greek Orthodox Church,
851 F.2d 584, 586–87 (2d Cir. 1988). Under either statute, “[a] complaint containing only
conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional
19
rights cannot withstand a motion to dismiss." Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.
1983).
Here, while Velez alleges that Defendants conspired to deprive him of his constitutional
and statutory rights, Velez's complaint contains only a conclusory, implausible allegation that
Garvey "improperly influenced the outcome" of his application. As discussed several times
supra, such an allegation is insufficient to maintain a claim.
IV.
CONCLUSION
For the reasons explained above, Defendants' motion to dismiss Velez's complaint is
GRANTED without prejudice. If Velez wishes to file an amended complaint to attempt to cure
the defects in his claims, Velez must move to do so by April 21, 2019, and he must attach to his
motion a copy of the proposed amended complaint. Failure to move to amend within the
timeframe provided shall result in dismissal of Velez's claims with prejudice. The Clerk of
Court is respectfully directed to terminate the motion, Doc. 25.
It is SO ORDERED.
Dated:
March 27, 2019
New York, New York
Edgardo Ramhs, U.S.D.J.
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