Allen v. NYC Department of Enviornmental Protection
Filing
39
OPINION AND ORDER: Defendant's Motion To Dismiss is granted with respect to Plaintiffs§ 1981 claims and denied with respect to Plaintiffs other claims. The Clerk of the Court is respectfully requested to terminate the pending Motion, (se e Dkt. No. 29), and to substitute the City of New York for the New York City Department of Environmental Protection as the Defendant in this Action. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/30/2014) (See OPINION AND ORDER as set forth) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LIONEL ALLEN,
Plaintiff,
Case No. 13-CV-203 (KMK)
OPINION & ORDER
-vNEW YORK CITY DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Defendant.
Appearances
Jesse Curtis Rose, Esq.
The Rose Law Group PLLC
New York, N.Y.
Counsel for Plaintiff
Alexis Downs, Esq.
John S. Schowengerdt, Esq.
New York City Law Department
New York, N.Y.
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Plaintiff Lionel Allen (“Allen”), by his counsel, brings this Action against the New York
City Department of Environmental Protection (“DEP” or “Defendant”), alleging that Defendant
discriminated against him on the basis of his race and national origin. Defendant moves to
dismiss pursuant to Rule 12(b)(6). For the reasons stated below, the Motion is granted in part
and denied in part.
I. BACKGROUND
A. Factual Background
Plaintiff’s Complaint can be read to allege the following facts, which are accepted as true
for the purposes of the instant Motion. Plaintiff worked for Defendant from 1989 until January
6, 2012. (Third Am. Compl. (“TAC”) ¶¶ 10, 38 (Dkt. No. 23).) During that time, Defendant
hired no Black or Jamaican individuals, other than Plaintiff. (Id. ¶¶ 13, 14.) On a number of
occasions, Plaintiff applied for promotions within his department, but did not receive them,
despite the fact that Plaintiff regularly received positive performance reviews. (Id. ¶¶ 12, 16.) In
each of these instances, a non-Black, non-Jamaican employee, some of whom had been trained
by Plaintiff, was promoted instead of Plaintiff. (Id. ¶ 16.)
For example, Plaintiff applied for the position of “Associate Project Manager” in June
2006, “Associate Project Manager” in December 2006, “Supervisor (Watershed Maintenance)”
in January 2007, “Supervisor (Watershed Maintenance)” in June 2007, “Project Manager” in
June 2007, “Supervisor Watershed Maintenance” in April 2008, “Supervisor Watershed
Maintainers/Assistant Chief Operator” in June 2008, “Civil Engineer” in December 2008,
“Associate Project Manager/Supervisor of Program Compliance” in December 2008, “Associate
Project Manager” in February 2009, and “Associate Project Manager/Assistant to RMP
Manager” in March 2009. (Id. ¶ 17(a)–(k).) Plaintiff alleges that he was qualified for all of
these positions, but was denied each position in favor of a similarly or less qualified non-Black
and non-Jamaican individual. (Id. ¶¶ 17–18.)
In 2006, Plaintiff obtained a scholarship to pursue a degree in civil engineering. (Id.
¶ 20.) That same year, two White individuals, who were less experienced than Plaintiff, had
worked for Defendant for less time than Plaintiff, and were less qualified than Plaintiff, were
2
promoted over Plaintiff to positions for which Plaintiff had applied. (Id. ¶ 21.) When Plaintiff
raised this issue with management, Defendant refused to act and instead “instructed [Plaintiff] to
wait.” (Id. ¶ 22.)
In September 2007, Plaintiff and his union representative met with Defendant’s
employees to discuss Plaintiff’s applications for promotion. (Id. ¶ 23–24.) During this meeting,
Plaintiff’s union representative stated that the only possible reason for not promoting Plaintiff
was his race and national origin. (Id. ¶ 24.) Defendant’s employees did not deny this assertion,
but instead promised Plaintiff a promotion if he refrained from reporting the issue to the Equal
Employment Opportunity Commission or filing an official complaint of discrimination. (Id.
¶¶ 25–26.)
Following the September 2007 meeting, Plaintiff continued to apply for positions for
which he was qualified, including the position of “Project Manager” and “Dam Safety
Inspector,” but was still not selected. (Id. ¶ 27.) On February 17, 2009, Plaintiff interviewed for
the position of “Dam Safety Inspector,” but was told that he did not qualify because he did not
have a Professional Engineer’s License. (Id. ¶ 28.) However, Plaintiff alleges that more than
one White employee was promoted to the position of “Dam Safety Inspector” without such a
license and that the only reason Plaintiff was not promoted to this position was because of his
race, national origin, and his September 2007 discrimination complaint. (Id. ¶¶ 28, 29.)
In 2009, Plaintiff filed an Equal Employment Opportunity Commission (“EEOC”)
complaint, alleging that Defendant illegally discriminated against Plaintiff by failing to promote
him. (Id. ¶ 30.) “Immediately after Plaintiff filed this charge, Defendant’s employees had
Plaintiff arrested” for what Plaintiff claims was a “clerical error” involving the recording of
dates when Plaintiff was absent from work due to jury duty. (Id. ¶¶ 31–32, 33.) Plaintiff claims
3
that such an error “is not typically handled in such a manner by Defendant” and that the criminal
charges “were entirely retaliatory in reaction to [Plaintiff’s] complaint of discrimination.” (Id.)
While the criminal charges against Plaintiff were ultimately reduced to a violation rather than a
felony, Defendant also pursued disciplinary proceedings against Plaintiff for this incident. (Id.
¶ 34.)
Around the same time, Plaintiff’s supervisor told Plaintiff to “jump, because there [was]
nowhere else for [him] to go.” (Id. ¶ 35 (internal quotation marks omitted).) Another of
Plaintiff’s supervisors, who had interviewed plaintiff for the position of “Dam Safety Inspector,”
told Plaintiff that he had seen Plaintiff’s EEOC complaint and stated, “[I]f I were you, I would
watch myself around here.” (Id. ¶ 36 (internal quotation marks omitted).) Plaintiff interpreted
his interactions with both supervisors to be threats of retaliation for Plaintiff’s filing of the
EEOC complaint. (Id. ¶¶ 35, 36.)
On February 3, 2010, Plaintiff fell while at work, injuring his shoulder and knee and
necessitating medical leave. (Id. ¶¶ 37–38.) While Plaintiff was out on leave, Defendant
terminated him, effective January 6, 2012. (Id. ¶ 38.) Plaintiff challenged this termination in
New York state court and, on May 2, 2013, the Supreme Court of the State of New York found
that Plaintiff had been “improperly terminated under Civil Service Law § 73, because his
absences were due to a disability resulting from an occupational injury,” and “because the DEP
did not provide [Plaintiff] with a notice of intended action.” Allen v. City of New York, 975
N.Y.S.2d 364, 364 (Sup. Ct. 2013). The court ordered Plaintiff be reinstated, see id. at 364, but,
as of the date of the TAC, Defendant had not done so, (see TAC ¶ 39).
4
B. Procedural Background
On January 8, 2013, Plaintiff filed his Complaint. (See Dkt. No. 2.) He filed an
Amended Complaint on January 28, 2013, (see Dkt. No. 4), a Second Amended Complaint on
May 31, 2013, (see Dkt. No. 17), and the TAC, the operative complaint for the purposes of the
instant Motion, on August 16, 2013, (see Dkt. No. 23).
Plaintiff’s TAC alleges that Defendant failed to promote Plaintiff on the basis of his race
and national origin and discriminated against him in violation of the anti-discrimination
provisions of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the corresponding
New York State anti-discrimination statute. (See TAC ¶¶ 46–49, 54–56, 60–62.) In addition,
Plaintiff’s TAC alleges that Defendant retaliated against Plaintiff for filing a discrimination
claim with the EEOC in violation of the applicable anti-retaliation provisions of the same
statutes. (Id. ¶¶ 50–53, 57–59, 63–65.) As a result of Defendant’s actions, Plaintiff claims to
have suffered “loss of income, . . . salary, bonuses, benefits and other compensation,” as well as
“future pecuniary losses, emotional pain, suffering, inconvenience, loss of enjoyment of life, and
other non-pecuniary losses,” and “severe emotional and physical distress.” (Id. ¶ 43.) By way
of remedy, Plaintiff seeks “all lost wages and benefits resulting from Defendant’s unlawful
discrimination,” (id. ¶ B), as well as “compensatory damages for mental, emotional and physical
injury, distress, pain and suffering[,] and injury to his reputation,” (id. ¶ C), as well as any other
relief as the Court may deem equitable, (id. ¶ E).
Defendant filed its Motion To Dismiss on January 10, 2014, (see Dkt. No. 29), along
with Defendant’s Memorandum of Law in Support of Defendant’s Motion (“Def.’s Mem.”), (see
Dkt. No. 31), and a Declaration of Adam E. Collyer in Support of the same (“Collyer Decl.”),
(see Dkt. No. 30). Plaintiff filed a Memorandum of Law in Opposition (“Pl.’s Mem.”) on
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January 30, 2014. (See Dkt. No. 32.) To date, Defendant has not filed a Reply to Plaintiff’s
Memorandum of Law in Opposition, nor asked for an extension of time in which to do so,
despite the February 14, 2014 deadline to make such a request.1 (See Mot. Scheduling Order
(Dkt. No. 28).) Therefore, the Court will consider the Motion on the papers received to date.
II. DISCUSSION
A. Standard of Review
The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide
the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (citations and internal
quotation marks omitted). Instead, the Supreme Court has emphasized that “[f]actual allegations
must be enough to raise a right to relief above the speculative level,” id., and that “once a claim
has been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint,” id. at 563. A plaintiff must allege “only enough facts to state a
claim to relief that is plausible on its face.” Id. at 570. But if a plaintiff has “not nudged [his or
her] claims across the line from conceivable to plausible, the[] complaint must be dismissed.”
Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“Determining whether a complaint
states a plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense. But where the well-pleaded facts do
1
Defendant’s original counsel left the New York City Law Department, however, he did not do
so until after the deadline for filing a Reply had passed. (See Letter from Adam E. Collyer to the
Court (May 27, 2014) (Dkt. No. 33).) Furthermore, Defendant’s current counsel has not raised
this issue with the Court.
6
not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” (alteration in original)
(citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))).
In considering Defendant’s Motion To Dismiss, the Court is required to consider as true
the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d
184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint pursuant
to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable
inferences in the plaintiff’s favor.” (internal quotation marks omitted)); Gonzalez v. Caballero,
572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008) (same). Moreover, “[i]n adjudicating a Rule 12(b)(6)
motion, a district court must confine its consideration to facts stated on the face of the complaint,
in documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (internal quotation marks omitted).
B. Analysis
1. Statute of Limitations
Defendant argues that several of the hiring decisions alleged by Plaintiff fall outside the
applicable statute of limitations and therefore cannot form a basis for Plaintiff’s discrimination
claim. Indeed, several of these claims are untimely. For example, a number of the hiring
decisions to which Plaintiff objects occurred more than 300 days prior to his EEOC complaint.
However, “[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 also 42 U.S.C. § 2000e–5(e) (same);
Sesay-Harrell v. N.Y.C. Dep’t of Homeless Servs., No. 12-CV-925, 2013 WL 6244158, at *11
7
(S.D.N.Y. Dec. 2, 2013) (same). While an exception to the statute of limitations exists where the
plaintiff can establish a “continuing violation,” the law in the Second Circuit is that “multiple
incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or
mechanism do not amount to a continuing violation.” Sesay-Harrell, 2013 WL 6244158, at *11
(quoting Hongyan Lu v. Chase Inv. Serv. Corp., 412 F. App’x 413, 416 (2d Cir. 2011) (internal
quotation marks omitted)).2 Moreover, failure-to-promote or failure-to-hire claims, even where
the same employee has been repeatedly denied a position, do not constitute a continuing
violation, as, “every failure to promote is a discrete act that potentially gives rise to a
freestanding Title VII claim with its own filing deadline.” Chin v. Port Auth. of N.Y. & N.J, 685
F.3d 135, 157 (2d Cir. 2012); see also Sareen v. Port Auth. of N.Y. & N.J., No. 12-CV-2823,
2013 WL 6588435, at *7 (S.D.N.Y. Dec. 16, 2013) (“The law in this Circuit is clear that . . .
failures to promote are discrete acts of discrimination and thus do not implicate the continuingviolation doctrine.” (internal quotation marks omitted)). See generally Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 114 (2002) (holding that each discrete act of discrimination
“constitutes a separate actionable ‘unlawful employment practice’”). The EEOC received
2
To be clear, Plaintiff is not claiming that a continuing violation occurred here. (See Pl.’s Mem.
4.) However, the adverse employment decisions Plaintiff asserts may provide context and
support for the timely claims that Plaintiff asserts. See Petrosino v. Bell Atl., 385 F.3d 210, 220
(2d Cir. 2004) (noting that “evidence of earlier promotion denials may constitute relevant
background evidence in support of a timely claim,” and the court “consider[ed] it as such”
(internal quotation marks omitted).
8
Plaintiff’s Charge of Discrimination on March 24, 2009 and is therefore barred from raising any
Title VII claims based on violations that occurred prior to May 14, 2008.3
As for Plaintiff’s New York State Human Rights Law (“NYHRL”) claims, “the statute of
limitations for claims under the [NYHRL] . . . is three years from the date that the claim
accrues.” Sesay-Harrell, 2013 WL 6244158, at *12 (internal quotation marks omitted); see also
E.E.O.C. v. Bloomberg L.P., 967 F. Supp. 2d 816, 831 (S.D.N.Y. 2013); N.Y. C.P.L.R. § 214(2).
However, “the statute of limitations period is tolled during the period in which a complaint is
filed with the EEOC and the issuance by the EEOC of a right-to-sue letter.” Sesay-Harrell, 2013
WL 6244158, at *12; see also Hanley v. Chi. Title Ins. Co., No. 12-CV-4418, 2013 WL
3192174, at *8 (S.D.N.Y. June 24, 2013) (collecting cases and noting that “[a]lthough the
Second Circuit has yet to definitively opine on the issue of whether the filing of a charge with
the EEOC serves to automatically toll the statute of limitations on claims asserted under
NYHRL, numerous courts in this Circuit have held that the three-year statute of limitations
3
While Plaintiff’s TAC merely states that Plaintiff filed his EEOC Charge of Discrimination
“[i]n or around April 2009,” (TAC ¶ 30), the Court finds that the TAC incorporates the EEOC
Charge of Discrimination by reference. This document is attached to Mr. Collyer’s Declaration
as “Exhibit A,” is signed by Plaintiff, and is dated March 16, 2009, but is stamped as “Received”
by the EEOC on March 24, 2009. (Collyer Decl. Ex. A, at unnumbered 3.) A charge is not
considered to be filed with the EEOC until the EEOC receives the charge and stamps it with the
appropriate date. See Gharzouzi v. Nw. Human Servs. of Penn., 225 F. Supp. 2d 514, 523-24
(E.D. Pa. 2002) (finding that the plaintiff’s “charge was filed with the EEOC on the date the
agency received his sworn, detailed complaint”); Koch v. CGM Grp., Inc., No. 00-CV-216, 2001
WL 392523, at *7 (S.D. Ind. Apr. 3, 2001) (“Although the EEOC charge, which [the defendant]
has attached as Exhibit A, was signed and notarized on May 19, that does not mean that it was
‘filed’ on that date, in the legally required sense. A charge is not considered to be filed with the
EEO until the EEOC receives the charge and stamps it with the appropriate date.” (citing 42
U.S.C. § 2000e–5(e)(1) (Charges “shall be filed . . . in such form as the [EEOC] requires.”); 29
C.F.R. § 1601.13(a)(4)(ii)(A) (The timeliness of the filing is determined by the date on which the
charge is received by the EEOC.)). In any case, when applying the statute of limitations, the
time between Plaintiff signed his EEOC complaint and the date that it was stamped as received
does not appear to make a difference here.
9
applicable to claims under NYHRL is tolled during the period in which a complaint is filed with
the EEOC.” (internal quotation marks and alterations omitted)). Plaintiff filed his EEOC charge
on March 24, 2009. (See Collyer Decl. Ex. A, at unnumbered 3.) Though Plaintiff’s TAC
contains no information about when Plaintiff received a right-to-sue letter, Plaintiff’s original
Complaint includes a right-to-sue letter dated October 26, 2012 as an attachment, (see Compl. at
unnumbered 11–13), and the envelope corresponding to this letter is date-stamped November 15,
2012, (id. at unnumbered 13).4 Drawing all reasonable inferences in Plaintiff’s favor, the Court
will assume that Plaintiff received his right-to-sue letter on November 18, 2012, at which time
the running of the statute of limitations on Plaintiff’s NYHRL claims resumed. See Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) (“Normally it is assumed that a mailed
document is received three days after its mailing.”) Therefore, Plaintiff’s NYHRL claims are
limited to those events that occurred no earlier than May 14, 2006.5
Lastly, Plaintiff’s § 1981 discrimination claims are subject to a four-year statute of
limitations. See Burgis v. Dep’t of Sanitation City of N.Y., No. 13-CV-1011, 2014 WL 1303447,
at *4 (S.D.N.Y. Mar. 31, 2014) (“Although § 1981 does not contain a statute of limitations, the
Supreme Court has held that the four-year federal ‘catch-all’ statute of limitations applies.”
4
The Court may properly consider materials attached to Plaintiff’s original Complaint. See, e.g.,
Brodeur v. City of New York, No. 96-CV-9421, 1998 WL 557599, at *2 (S.D.N.Y. Sept. 2, 1998)
(considering documents that “were attached to plaintiff’s original complaint” in deciding a
motion to dismiss a plaintiff’s amended complaint), aff’d, 182 F.3d 898 (2d Cir. 1999).
5
Plaintiff’s EEOC charge was filed on March 24, 2009, which provided grounds for claims
dating back three years, to March 24, 2006. At that time, the statute of limitations was tolled
pending a right-to-sue letter from the EEOC. It resumed on November 18, 2012, when Plaintiff
is presumed to have received the right-to-sue letter. Fifty-one days passed between receipt of
this letter and Plaintiff’s filing of the Complaint on January 8, 2013. Thus, the three-year statute
of limitations period advances by 51 days from March 24, 2006, limiting Plaintiff’s basis for
claims to events that occurred on or after May 14, 2006.
10
(citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004))). Accordingly, only
Plaintiff’s claims based on events that occurred on or after January 8, 2009 can provide a basis
§ 1981 relief.6
2. Plaintiff’s Discrimination Claim
Plaintiff claims that he suffered discrimination due to both disparate treatment by
Defendant and Defendant’s failure to promote Plaintiff. (See Pl.’s Mem. 6.) “The substantive
standards applicable to claims of employment discrimination under Title VII, which are also
generally applicable to claims of employment discrimination brought under § 1981 . . . and the
NYSHRL are . . . well established.” Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.
2010) (citation omitted) (citing Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.
2004)). In order to establish a prima facie case of discrimination due to disparate treatment, a
plaintiff must show that “(1) he is a member of a protected class; (2) he was qualified for the
position he held; (3) he suffered an adverse employment action; and (4) the adverse action took
place under circumstances giving rise to an inference of discrimination.” Reynolds v. Barrett,
685 F.3d 193, 203 (2d Cir. 2012) (alteration and internal quotation marks omitted). These
elements largely overlap with those of a failure to promote or hire claim, which requires that
“(1) [Plaintiff] is a member of a protected class; (2) [Plaintiff] applied and was qualified for a
job for which the employer was seeking applicants; (3) [Plaintiff] was rejected for the position;
and (4) the position remained open and the employer continued to seek applicants having the
[P]laintiff’s qualifications.” Rodriguez v. City of New York, No. 13-CV-6552, 2014 WL
6
Plaintiff does not dispute Defendant’s application of the statute of limitations for Plaintiff’s
§ 1981 claims. (See Pl.’s Mem. 4.)
11
1399415, at *2 (E.D.N.Y. Apr. 10, 2014) (quoting Estate of Hamilton v. City of New York, 627
F. 3d 50, 55 (2d Cir. 2010)).
“A plaintiff cannot establish a prima facie case of discrimination under Title VII based
on purely conclusory allegations of discrimination, absent any concrete particulars.” Moccio v.
Cornell Univ., 889 F. Supp. 2d 539, 572 (S.D.N.Y. 2012) (quoting Meiri v. Dacon, 759 F.2d
989, 998 (2d Cir. 1985) (internal quotation marks omitted)). However, to survive a motion to
dismiss, “a complaint need not establish a prima facie case of employment discrimination . . .
[but] the claim must be facially plausible and must give fair notice to the defendants of the basis
for the claim.” Mohawk v. William Floyd Sch. Dist., No. 13-CV-2518, 2014 WL 838162, at *2
(E.D.N.Y. Mar. 3, 2014) (second alteration in original) (internal quotation marks omitted).
Plaintiff has pleaded sufficient facts in his TAC to meet this requirement. With respect to the
first prong of both his disparate treatment and failure-to-promote claims, he has plead that he is a
member of a protected class, both with respect to his race and his national origin. (See TAC
¶¶ 1, 14.) Plaintiff has also pleaded that he was qualified for his current job, in that “throughout
his employment” he has “been an exemplary employee” who “regularly received positive
reviews” and “never [had] any problems with his performance prior to his complaints of
discrimination.” (Id. ¶¶ 11–13.) He also claims to have been qualified for the positions for
which he applied and was rejected—in fact, Plaintiff claims to have trained several people who
were promoted over him. (Id. ¶¶ 16–19, 21.) With respect to the third and fourth prongs of
Plaintiff’s failure-to-promote claims, Plaintiff has alleged that he applied for and was rejected
from several positions that fall within the period set by the statute of limitations discussed above.
(Id. ¶¶ 17, 28–29.) Plaintiff further alleges that these positions were ultimately filled by nonBlack and non-Jamaican individuals who were less or similarly qualified as Plaintiff. (Id. ¶¶ 17,
12
28.) Such allegations are sufficient to allege a failure-to-promote claim. See, e.g., Castillo v.
Time Warner Cable of N.Y.C., No. 09-CV-7644, 2011 WL 3475419, at *6 (S.D.N.Y. Aug. 9,
2011) (holding that “the allegation that the position went to a less qualified nonminority
technician [was] sufficient to establish an inference of discrimination” for the plaintiff’s failureto-promote claim); Chacko v. Worldwide Flight Servs., Inc., No. 08-CV-2363, 2010 WL 424025,
at *4 (E.D.N.Y. Feb. 3, 2010) (finding the plaintiff’s allegation “that he was rejected in favor of
a younger and less-qualified” nonminority candidate to be “sufficient to give rise to an inference
of discrimination”).
With respect to the third and fourth prongs of his disparate treatment claim, Plaintiff has
pleaded that Defendant’s treatment of the alleged clerical error related to Plaintiff’s jury
service—including the filing of criminal charges against Plaintiff and Defendant’s failure to
handle the matter solely through internal processes—amounted to a discriminatory adverse
employment action, and that “non-Black and non-Jamaican employees [were] not subjected to
criminal charges for clerical errors and are . . . provided opportunities to correct such errors.”
(TAC ¶¶ 31–34.) These actions by Defendant may, after discovery, prove to amount to less than
an actionable adverse employment action. See Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)
(finding that “an employee does not suffer a materially adverse change in the terms and
conditions of employment where the employer merely enforces its preexisting disciplinary
policies in a reasonable manner”); Sesay-Harrell, 2013 WL 6244158, at *15 (finding that
allegations of “standard disciplinary measures . . . would not suffice to constitute an adverse
employment action”). At this stage of this case, however, Plaintiff’s allegations that Defendant
disciplined Plaintiff differently than similarly-situated “non-Black and non-Jamaican
employees,” (TAC ¶ 34), sufficiently pleads this aspect of his claim for Rule 12(b)(6) purposes.
13
See, e.g., Norris v. Metro-N. Commuter R.R. Co., 522 F. Supp. 2d 402, 410 (D. Conn. 2007)
(finding that the plaintiff successfully alleged a prima facie case of racially motivated
discrimination on an unfair discipline theory where the plaintiff “committed a violation which
resulted in arguably less damage, yet received harsher punishment than his white peers”); cf.
Brown v. Middaugh, 41 F. Supp. 2d 172, 188 (N.D.N.Y. 1999) (granting summary judgment in
favor of the defendant where the plaintiff raised a claim for “unfair discipline for tardiness” and
failed to show that “similarly situated white [employees] . . . received preferential treatment in
these matters”).
Furthermore, Plaintiff’s allegation that Defendant “refused to reinstate the employment
of Plaintiff due to his Race [and] National Origin” after his termination was held to have been
illegal, (TAC ¶¶ 38–40), sufficiently alleges an adverse employment action and Defendant’s
discriminatory intent. See Leibowitz v. Cornell Univ., 584 F.3d 487, 501 (2d Cir. 2009) (noting
that “[a]n employee seeking a renewal of an employment contract, just like a new applicant or a
rehire after a layoff, suffers an adverse employment action when an employment opportunity is
denied and is protected from discrimination in connection with such decisions under Title VII,”
and that “the mere fact that the employer’s decision not to renew is completely discretionary
does not mean that it is not an ‘adverse’ employment decision”), superseded by statute on other
grounds, Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85, as recognized
in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108–109 (2d Cir. 2013);
Wanamaker v. Town of Westport Bd. of Educ., No. 11-CV-1791, 2014 WL 1281937, at *1 (D.
Conn. Mar. 27, 2014) (denying the defendant’s motion for summary judgment with respect to
the plaintiff’s claim that the defendant’s refusal to reinstate her to a teaching position was an
adverse employment action).
14
Defendant’s argument that Plaintiff’s allegations are “conclusory” and “speculative” is
unavailing. (See Def.’s Mem. 8–9.) To the contrary, Plaintiff’s TAC catalogues each of the
positions he applied for, that he was denied those positions, that “[o]n each occasion, a nonBlack and non-Jamaican employee was promoted over Plaintiff,” and that “Plaintiff was the only
Black or Jamaican employee in shaft 18” at the “Valhalla location from 1989 to present.” (TAC
¶¶ 13–14, 16–17, 28.) These pleadings are not mere “naked assertions devoid of further factual
enhancement.” Giraud v. Bd. of Educ., Newburgh Enlarged City Sch. Dist., No. 12-CV-1842,
2013 WL 3776242, at *4 (S.D.N.Y. July 17, 2013) (quoting Iqbal, 556 U.S. at 678). Rather,
they reflect the factual basis that one might expect from an employee-plaintiff prior to discovery.
Moreover, “a plaintiff need not plead a prima facie case of employment discrimination,”
but must nevertheless “set forth factual circumstances—such as preferential treatment given to
dissimilarly situated individuals, or remarks that convey discriminatory animus—from which the
Court can infer discrimination on the basis of protected status.” Winston v. City of New York,
No. 12-CV-0395, 2014 WL 2957488, at *1 (E.D.N.Y. July 1, 2014) (internal quotation marks
omitted); see also Ramirez v. Hempstead Union Free Sch. Dist. Bd. of Educ., No. 13-CV-6429,
2014 WL 3547374, at *4 (E.D.N.Y. July 16, 2014) (noting that, to survive a motion to dismiss, a
plaintiff asserting employment discrimination “need not plead all the facts necessary to establish
a prima facie case, but must [merely] satisfy the provisions of Fed. R. Civ. P. 8, by making a
short and plain statement of the claim showing the pleader is entitled to relief” (internal
quotation marks omitted)); Clarke v. InterContinental Hotels Grp., PLC, No. 12-CV-2671, 2013
WL 2358596, at *6 (S.D.N.Y. May 30, 2013) (noting that “the pleading requirements in
discrimination cases are very lenient, even de minimis,” and that “a complaint need not establish
a prima facie case of employment discrimination to survive a motion to dismiss,” but must
15
merely “be facially plausible and must give fair notice to the defendants of the basis for the
claim” (internal quotation marks omitted)); Fowler v. Scores Holding Co., 677 F. Supp. 2d 673,
679 (S.D.N.Y. 2009) (noting that a complaint alleging “employment discrimination claims need
not contain specific facts establishing a prima facie case of discrimination”) (citing Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 514 (2002)). Plaintiff’s TAC meets these requirements.
Accordingly, Defendant’s Motion To Dismiss Plaintiff’s discrimination claim is denied.
3. Plaintiff’s Retaliation Claim
“To establish a prima facie case of retaliation, an employee must show [1] participation
in a protected activity known to the defendant; [2] an employment action disadvantaging the
plaintiff; and [3] a causal connection between the protected activity and the adverse employment
action.” Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (internal quotation marks omitted).
Here, Plaintiff has pleaded that he filed his EEOC charge, and that around the same time, he was
warned by two of his supervisors about the charge. (See TAC ¶¶ 30, 35, 36.) Specifically,
Plaintiff alleges that one of his supervisors referenced the EEOC complaint and suggested that
Plaintiff “watch [himself] around here,” (id. ¶ 36 (internal quotation marks omitted)), while the
other supervisor told Plaintiff to “jump” as “there is nowhere else for [Plaintiff] to go,” (id. ¶ 35
(internal quotation marks omitted)). Around the same time, Plaintiff alleges that Defendant
handled the clerical error with respect to Defendant’s jury duty reporting by filing a charge with
the police, in deviation from Defendant’s typical handling of such errors. (Id. ¶¶ 31–32.) These
allegations satisfactorily plead the first two elements of a retaliation claim.
With respect to the third prong of Plaintiff’s retaliation claim, Defendant argues that the
TAC fails to satisfactorily plead a causal connection between Plaintiff’s filing of an EEOC
complaint and Plaintiff’s subsequent arrest. (See Def.’s Mem. 9–10.) In its Memorandum in
16
Support, Defendant rightly notes that recent Supreme Court precedent requires “Title VII
retaliation claims . . . be proved according to traditional principles of but-for causation, which
requires proof that the unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d
Cir. 2013) (internal quotation marks omitted) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar,
— U.S. —, 133 S.Ct. 2517, 2533 (2013)). However, Plaintiff’s “presentation of a temporal
connection” can be “enough, in and of itself . . . to permit a reasonable jury to find causation.”
Summa v. Hofstra Univ., 708 F.3d 115, 127 (2d Cir. 2013); see also Separ v. Nassau Cnty. Dept.
of Soc. Servs., No. 11-CV-2668, 2014 WL 4437676, at *7 (E.D.N.Y. Sept. 9, 2014) (“Plaintiff’s
burden to establish a prima facie case, which is ‘minimal,’ can be met by proffering evidence of
a close temporal connection between the protected activity and the adverse employment
action.”). There is no “bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship between the exercise of a federal
constitutional right and an allegedly retaliatory action,” and a court must “exercise its judgment
about the permissible inferences that can be drawn from temporal proximity in the context of
particular cases.” Summa, 708 F.3d at 128 (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d
Cir. 2009)) (internal quotation marks omitted). Compare Hollander v. Am. Cyanamid Co., 895
F.2d 80, 85–86 (2d Cir. 1990) (finding a lack of evidence that an adverse action, taken three
months after the plaintiff’s EEOC complaint, was in response to the plaintiff’s protected
activity), with Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980) (finding that
the lapse of eight months between an EEOC complaint and retaliatory act indicated a causal
connection).
17
Here, Defendant claims that it was not aware of Plaintiff’s EEOC charge until July 21,
2009, nearly four months after Plaintiff filed the charge, and after the alleged retaliatory police
complaint. (See Def.’s Mem. 9–10.) Plaintiff’s TAC does not specify the date of Plaintiff’s
arrest, nor the date of his supervisors’ remarks, stating instead that the arrest occurred
“immediately after Plaintiff filed [the EEOC] charge” and that the supervisors’ statements were
made “in or around this time.” (TAC ¶¶ 31, 35–36.) The TAC is ambiguous as to the time
period Plaintiff refers to when pleading that the supervisors’ comments were made “[i]n or
around this time.” (Id. ¶¶ 35, 36.) Depending on whether Plaintiff intends this phrase to refer to
the time when Plaintiff was arrested, (id. ¶ 31), or when the criminal “charges were ultimately
reduced to a violation,” (id. ¶ 34), this time period could vary. Reading the TAC broadly in
Plaintiff’s favor, the Court can plausibly interpret the TAC to allege that the supervisors’
comments were made “in or around” the time of Plaintiff’s arrest for purposes of the instant
Motion. Thus, Plaintiff’s supervisor’s comments plausibly suggest that Defendant was aware of
the EEOC complaint around the time that Defendant filed its complaint against Plaintiff with the
police, providing sufficient grounds for an inference that the events were causally related. See,
e.g., Winston v. City of New York, No. 12-CV-0395, 2014 WL 2957488, at *2 (E.D.N.Y. July 1,
2014) (finding the plaintiff’s allegation that the time between the protected activity and the
adverse employment action in question coincided with a vacation, which was “typically a matter
of two to three weeks,” pleaded “facts sufficient to raise an inference of retaliatory animus” for
motion to dismiss purposes); Jones v. Onondaga Cnty. Res. Recovery Agency, No. 13-CV-1425,
2014 WL 2480170, at *8 (N.D.N.Y. June 3, 2014) (denying the defendant’s motion to dismiss,
despite the fact “that [the] [p]laintiff's retaliation claims barely provide plausible factual
allegations supporting a prima facie case of retaliation because the allegations are so vague and
18
conclusory, they do give [the] [d]efendants fair notice of the basis for Plaintiff's claims,” and
noting that “[d]iscovery can be used to delineate and define these issues, and a motion for
summary judgment can be made if it is contended after discovery that the claims are
insufficient”). Here, discovery will undoubtedly be helpful in clarifying when Defendant knew
about Plaintiff’s EEOC complaint and whether a causal relationship exists between Plaintiff’s
EEOC complaint and the filing of a criminal complaint against Plaintiff. In the meantime,
Plaintiff’s claim is plausible. Thus, Defendant’s Motion is denied without prejudice with respect
to Plaintiff’s retaliation claims.
4. Defendant DEP was Improperly Named
Plaintiff has named the DEP as the sole Defendant in this Action. (See TAC.) However,
as Defendant correctly notes in its Memorandum in Support of its Motion, agencies of the City
of New York cannot be sued in their own names. (See Def.’s Mem. 10 n.3.) Therefore, the
proper defendant in this Action is the City of New York. See N.Y. City Charter § 396 (“All
actions and proceedings for the recovery of penalties for the violation of any law shall be
brought in the name of the city of New York and not in that of any agency . . . .”; Kelly v. N.Y.C.
Dep’t of Envtl. Prot., No. 13-CV-1110, 2014 WL 837469, at *7 (N.D.N.Y. Mar. 4, 2014) (noting
that “at least two other federal courts have dismissed § 1983 claims against the DEP because
they were improperly named as a defendant,” and construing the plaintiff’s complaint, which
named DEP, as to be against the City of New York); Heneghan v. N.Y.C. Admin. for Children’s
Servs., No. 03-CV-2992, 2006 WL 2620430, at *7 (E.D.N.Y. Sept. 12, 2006) (noting that
“agencies of the City of New York cannot be sued in their own names,” and suggesting that the
City of New York should be substituted as the defendant where a plaintiff errantly names a city
agency); Russell Pipe & Foundry Co. v. City of New York, No. 94-CV-8642, 1997 WL 80601, at
19
*6 (S.D.N.Y. Feb. 25, 1997) (dismissing the plaintiffs’ claim against the DEP “on the ground
that it is not a suable entity”). Accordingly, the Court orders that the City of New York (“the
City”) be substituted in place of DEP for the remainder of this Action and will consider this
substitution to have been made.
5. Monell Liability
Lastly, Defendant challenges Plaintiff’s § 1981 claim because it fails to articulate an
official policy or custom that caused Plaintiff’s constitutional violation under the standard
articulated in Monell v. N.Y.C. Dep’t of Social Services, 436 U.S. 658 (1978), and thus fails to
plead municipal liability. (See Def.’s Mem. 10.) Defendant is correct in noting that, in
order to state a § 1981 claim, Plaintiff must allege “that the challenged acts were performed
pursuant to a municipal policy or custom.” Patterson, 375 F.3d at 226. It is well-settled that
“Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to
official municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691.
Furthermore, a municipality may not be held liable under § 1983 “by application of the doctrine
of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986); see also
Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y. 2008) (noting that “a municipal entity
may only be held liable where the entity itself commits a wrong”). Instead, there must be a
“direct causal link between a municipal policy or custom and the alleged constitutional
deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see also City of St. Louis v.
Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnmental bodies can act only through natural
persons . . . [and] governments should be held responsible when, and only when, their official
policies cause their employees to violate another person’s constitutional rights.”).
20
“In determining municipal liability, it is necessary to conduct a separate inquiry into
whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff’d, 75 Fed. App’x 827 (2d Cir. 2003). Normally, “a custom or policy
cannot be shown by pointing to a single instance of unconstitutional conduct by a mere
employee of the [municipality].” Newton, 566 F. Supp. 2d at 271; see also City of Oklahoma v.
Tuttle, 471 U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a
municipal policymaker.” (plurality opinion)); Brogdon v. City of New Rochelle, 200 F. Supp. 2d
411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient to establish the
affirmative link between the municipal policy or custom and the alleged unconstitutional
violation.”). “The Supreme Court has identified at least two situations that constitute a
municipal policy: (1) where there is an officially promulgated policy as that term is generally
understood (i.e., a formal act by the municipality’s governing body), and (2) where a single act is
taken by a municipal employee who, as a matter of State law, has final policymaking authority in
the area in which the action was taken.” Newton, 566 F. Supp. 2d at 271 (footnote omitted).
“A municipal ‘custom,’ on the other hand, need not receive formal approval by the
appropriate decisionmaker . . . .” Id. Instead, “an act performed pursuant to a ‘custom’ that has
not been formally approved by an appropriate decisionmaker may fairly subject a municipality to
liability on the theory that the relevant practice is so widespread as to have the force of law.”
Brown, 520 U.S. at 404; see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996) (noting
that a municipality's custom “need not be memorialized in a specific rule or regulation”). To
prevail on this theory of municipal liability, however, a plaintiff must prove that the custom at
21
issue is permanent and well-settled. See Praprotnik, 485 U.S. at 127 (noting that the Supreme
Court “has long recognized that a plaintiff may be able to prove the existence of a widespread
practice that, although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with the force of law” (internal
quotation marks omitted)).
Here, Plaintiff does not allege that the acts taken by Defendant in not promoting Plaintiff
and retaliating against Plaintiff for his EEOC complaint were performed pursuant to a municipal
custom or practice of discrimination. “Obviously, the City of New York does not promulgate
any official policy of discrimination along the lines plaintiff suggests.” Jimenez v. City of New
York, 605 F. Supp. 2d 485, 530 (S.D.N.Y. 2009) (noting that “[a] trip to the City's web site
reveals just the opposite; the City claims to be an equal opportunity employer”). “However,
repeated actions can rise to the level of a policy if they are so consistent and widespread that
they constitute a custom or usage sufficient to impute constructive knowledge of the practice to
policymaking officials, or if the actions are directed or endorsed by someone who qualifies as a
‘policy-maker’ for the City.” Id.; see also Patterson, 375 F.3d at 226 (noting that, in order “[t]o
show a policy, custom, or practice, the plaintiff need not identify an express rule or regulation,”
but may instead show “that a discriminatory practice of municipal officials was so persistent or
widespread as to constitute a custom or usage with the force of law, or that a discriminatory
practice of subordinate employees was so manifest as to imply the constructive acquiescence of
senior policy-making officials” (internal quotation marks omitted)).
Plaintiff alleges that Defendant repeatedly denied him promotions for which he was
qualified over the past 23 years, (see TAC ¶ 15, 16), and instead has consistently hired nonBlack and non-Jamaican applicants, some of whom Plaintiff had trained, (id. ¶¶ 16, 17). In
22
support of these allegations, Plaintiff has alleged that he was the only Black or Jamaican
employee at the Valhalla shaft 18 location during the more than 20 years that he worked there,
from 1989 to 2012. (Id. ¶ 13–14, 38.) Plaintiff also alleges that, when he raised the hiring
disparity with Defendant, he was told by Defendant to wait, (id. ¶ 22), and that when, in a
meeting with supervisors and managers employed by Defendant, his union representative
asserted that racial or national origin discrimination was the cause of Defendant’s failure to
promote Plaintiff, none of Defendant’s employees denied this assertion, (id. ¶¶ 24–25).
A “racial imbalance in the makeup of a workplace is insufficient, by itself, to
demonstrate discrimination.” Branch v. Sony Music Entm’t, Inc., No. 97-CV-9238, 2001 WL
228108, at *6 (S.D.N.Y. Mar. 8, 2001), aff’d, 34 F. App’x 23 (2d Cir. 2002).7 Furthermore,
alleged discrimination suffered by Plaintiff alone is not sufficient to plead a policy or custom
under Monell. See Howard v. MTA Metro-N. Commuter R.R., 866 F. Supp. 2d 196, 209
(S.D.N.Y. 2011) (finding “no evidence at all of a custom of policy by the MTA to engage in
racial discrimination,” and noting that “[p]roof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof of the incident includes proof that it
was caused by an existing, unconstitutional municipal policy” (internal quotation marks
7
Indeed, a number of courts in the Second Circuit have held that such an allegation is
insufficient to comprise a prima facie case of discrimination. See Anderson v. City of New
Rochelle, No. 10-CV-4941, 2012 WL 3957742, at *13 (S.D.N.Y. Sept. 4, 2012) (noting that the
“[p]laintiff’s assertion that there were no African Americans working as full-time laborers in
July 2007 has limited, if any, probative value” in the court’s pretext analysis); Anderson v. Hertz
Corp., 507 F. Supp. 2d 320, 329 (S.D.N.Y. 2007) (finding the fact that the plaintiff was the only
African American manager at a particular site to be insufficient evidence of discrimination at
prima facie stage of analysis), aff’d, 303 F. App’x 946 (2d Cir. 2008); Branch, 2001 WL 228108,
at *6 (noting that the “plaintiff is incorrect in her assertion that the absence of AfricanAmericans in her former department is evidence of discrimination”); see also Saenger, 706 F.
Supp. 2d 494, 516 (noting that courts routinely reject statistical evidence that is anecdotal or
insufficiently complete to permit a reasonable inference of discrimination).
23
omitted)); Edwards v. City of New York, No. 03-CV-9407, 2005 WL 3466009, at *11 (S.D.N.Y.
Dec. 19, 2005) (dismissing the plaintiff’s § 1981 claims against the city for failure to plead a
policy or pattern of discrimination, and noting that Monell “would be rendered sterile if, as [the]
plaintiff asserts, mere conclusory allegations of a few isolated incidents of discrimination against
an individual plaintiff were sufficient to hold the municipality liable”); Brodeur v. City of New
York, No. 96-CV-9421, 1998 WL 557599, at *9 (S.D.N.Y. Sept. 2, 1998) (dismissing the
plaintiff’s complaint on grounds that “the complaint alleges no other facts allowing the court to
draw an inference that the actions complained of were the result of a policy, as the allegations
pertain to events visited upon plaintiff alone”), aff’d, 182 F.3d 898 (2d Cir. 1999). No more
helpful is Plaintiff’s allegation that the Defendant failed to promote him after multiple
applications sufficient to suggest that the Defendant engaged in discrimination with respect to
race or national origin. See Jimenez, 605 F. Supp. 2d at 530–31 (holding that “the repeated
failure to offer plaintiff to jobs for which his qualifications were not markedly superior to the
selected candidates’ [qualifications] does not raise any inference of a pattern or practice of
discrimination”). Finally, even Plaintiff’s allegation that he “was the only Black or Jamaican
employee in shaft 18” at the “Valhalla location from 1989 to present,” (TAC ¶¶ 13–14), is not
sufficient for the court to conclude that this demographic makeup was the result of a pattern or
practice on the part of Defendant. See Calhoun v. Bd. of Educ. of Arbor Park Sch. Dist. No. 145,
Cook Cnty., Ill., No. 13-CV-1866, 2013 WL 4845460, at *2–3 (N.D. Ill. Sept. 9, 2013)
(dismissing the plaintiff’s § 1983 discrimination claim on Monell grounds, as the “[p]laintiff’s
allegation that she was the only African–American employee of the defendant, by itself, is not
sufficient to plausibly suggest above a speculative level that defendant had a permanent and
well-settled practice of racial discrimination”). Even accepting the facts in Plaintiff’s TAC as
24
true, and drawing the appropriate inferences in his favor, he fails to sufficiently allege a
discriminatory custom or policy by Defendant. Plaintiff’s § 1981 claims are therefore dismissed.
6. Title VII Claims Survive
While “[m]ost of the core substantive standards that apply to claims of discriminatory
conduct in violation of Title VII are also applicable to claims of discrimination in employment in
violation of § 1981,” there are nonetheless several differences between Title VII and § 1981.
Patterson, 375 F.3d at 225. As discussed above, the statute of limitations period are a significant
difference between these statutes, as is § 1981’s requirement that the plaintiff demonstrate a
municipal’s liability under Monell. See id. at 225–26. In addition, “Title VII claims are not
cognizable against individuals,” in contrast to claims brought under § 1981. Id. at 226. Lastly,
“in certain circumstances a Title VII claim may be established through proof of a defendant’s
mere negligence, without a showing of discriminatory intent, [however] a plaintiff pursuing a
claimed violation of § 1981 . . . must show that the discrimination was intentional.” Id. (citation
omitted). Though plaintiffs frequently pursue claims against municipalities under both Title VII
and § 1981, the differences between the statutes can create circumstances where a plaintiff is
unable to pursue a claim under one statute, or elects not to, but may still assert a claim under the
other statute. See, e.g., Annis v. Cnty. of Westchester, 36 F.3d 251, 255 (2d Cir. 1994) (holding
that “an employment discrimination plaintiff alleging the violation of a constitutional right may
bring suit under § 1983 alone, and is not required to plead concurrently a violation of Title VII”).
And so it is here, at least with respect to Defendant’s Motion To Dismiss.
“Municipal employers are subject to Title VII’s prohibition on employment
discrimination.” United States v. City of New York, 847 F. Supp. 2d 395, 408 (E.D.N.Y. 2012);
see also Annis, 36 F.3d at 254; Briscoe v. City of New Haven, No. 09-CV-1642, 2013 WL
25
6047202, at *3 (D. Conn. Nov. 14, 2013) (“The City of New Haven is a municipal employer
subject to Title VII.”). A number of courts in the Second Circuit have permitted Title VII claims
to advance in the absence of section 1981 and/or section 1983 claims that the plaintiff
concurrently asserted. See DeNigris v. New York City Health & Hospitals Corp., 861 F. Supp.
2d 185, 187, 197 (S.D.N.Y. 2012) (noting that the plaintiff failed to oppose the defendants’
objection to municipal liability under § 1983 and granting summary judgment in favor of the
defendants with regard to the plaintiff’s § 1983 claim, but denying the defendants’ summary
judgment motion with respect to the plaintiff’s racial discrimination and retaliation claims under
Title VII); Sims v. City of New York, No. 08-CV-5965, 2010 WL 3825720, at *13 (S.D.N.Y.
Sept. 30, 2010) (granting summary judgment in favor of the defendants with respect to the
plaintiff’s section 1981 claim, as well as other claims, but denying the defendant’s motion for
summary judgment with respect to several “discrete acts of discrimination under Title VII”); see
also Coleman v. Town of Brookhaven, No. 08-CV-379, 2010 WL 1685848, at *9 (E.D.N.Y. Apr.
23, 2010) (granting summary judgment in favor of the defendants with respect to the plaintiff’s
section 1981 and 1983 claims, among others, while denying summary judgment with respect to
the plaintiff’s Title VII retaliation claim). The Court does not find, nor has Defendant asserted,
any reason why Plaintiff’s Title VII claims should not proceed in the absence of his § 1981 claim
at this time, though the Court may revisit the issue, should Defendant elect to raise it as part of
future briefing in this case.
26
III. CONCLUSION
For the reasons discussed above, Defendant' s Motion To Dismiss is granted with respect
to Plaintiffs§ 1981 claims and denied with respect to Plaintiffs other claims. The Clerk of the
Court is respectfully requested to terminate the pending Motion, (see Dkt. No. 29), and to
substitute the City of New York for the New York City Department of Environmental Protection
as the Defendant in this Action.
SO ORDERED.
Dated: September 30,2014
White Plains, New York
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