Dipinto v. Westchester County et al
Filing
86
MEMORANDUM OPINION AND ORDER re: 75 FIRST MOTION to Dismiss . filed by Thomas Lauro, Westchester County, Jeffrey Bryant., Based upon the foregoing, Defendants' motion to dismiss the SAC is GRANTED in part. Plaintiffs cla ims against Lauro, the NYSHRL claims against the County and Bryant in his official capacity (Claims 4-7), the NYSHRL retaliation claim against Bryant in his individual capacity (Claim 5), and the Monell claim (Claims 8-9) are DISMISSED. Plaintiffs ADA discrimination (Claim 1), retaliation (Claim 2), and hostile work environment (Claim 3) claims against the County, and his NYSHRL discrimination (Claim 4), hostile work environment (Claim 6), and aiding and abetting (Claim 7) claims again st Bryant in his individual capacity, shall proceed to discovery. The Court will issue an Initial Pretrial Conference Order and set a conference date in short order. The Clerk of Court is respectfully directed to terminate the pending motion sequence (Doc. 75) and terminate Defendant Thomas Lauro from this action. SO ORDERED. (Signed by Judge Philip M. Halpern on 10/19/2020) Thomas Lauro (individually) and Thomas Lauro (in his official capacity) terminated. (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PHILLIP DIPINTO,
Plaintiff,
-against-
MEMORANDUM OPINION
AND ORDER
18-CV-00793 (PMH)
WESTCHESTER COUNTY, et al.,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Phillip Dipinto (“Plaintiff”) brings this action against Westchester County
(“County”), Thomas Lauro (“Lauro”), and Jeffrey Bryant (“Bryant” and collectively
“Defendants”) alleging generally that he was discriminated against—and his constitutional rights
were violated—while serving as a County employee in 2016.
Plaintiff filed his Complaint on January 29, 2018. (Doc. 1). Plaintiff filed his First
Amended Complaint (“FAC”) with leave of the Court on July 7, 2018. (Doc. 21, “FAC”). The
FAC pressed the following five (5) claims for relief: (1) discrimination, in violation of the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., against the County
(id. ¶¶ 116-21); (2) retaliation, in violation of the ADA, against the County (id. ¶¶ 122-25); (3)
discrimination, in violation of the New York State Human Rights Law (“NYSHRL”), N.Y. Exec.
Law §§ 296 et seq., against all Defendants (id. ¶¶ 126-29); (4) retaliation, in violation of the
NYSHRL, against all Defendants (id. ¶¶ 130-32); and (5) aiding and abetting, in violation of the
NYSHRL, against all Defendants (id. ¶¶ 133-35). On February 19, 2019, Defendants moved to
dismiss the FAC for failure to state a claim upon which relief could be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). (See Docs. 52-54). That motion was fully briefed on March 25,
2019. (See Docs. 55-56).
On August 30, 2019, Judge Karas issued an Opinion & Order dated August 29, 2019
(“Prior Order”) granting without prejudice Defendants’ motion to dismiss with respect to the
second and fourth claims alleged in the FAC (those alleging retaliation in violation of the ADA
and NYSHRL). (Doc. 60, “Prior Ord.”).1 Judge Karas instructed that: (1) Plaintiff could “file a
second amended complaint with the Court within 30 days of the date of this Opinion;” and (2)
“Plaintiff shall complete service on Lauro within 30 days of the date of this Opinion, or he will be
dismissed from this case.” (Id. at 23). Plaintiff filed his Second Amended Complaint (“SAC”) on
September 17, 2019. (Doc. 61, “SAC”).
The SAC presents nine (9) separate claims for relief: (1) ADA discrimination against the
County (id. ¶¶ 133-38); (2) ADA retaliation against the County (id. ¶¶ 139-42); (3) ADA hostile
work environment against the County2 (id. ¶¶ 143-48); (4) NYSHRL discrimination against all
Defendants (id. ¶¶ 149-52); (5) NYSHRL retaliation against all Defendants (id. ¶¶ 153-55); (6)
NYSHRL hostile work environment against all Defendants (id. ¶¶ 156-61); (7) NYSHRL aiding
and abetting against all Defendants (id. ¶¶ 162-64); (8) discrimination and due process under 42
U.S.C. § 1983 against all Defendants (id. ¶¶ 165-78); and (9) hostile work environment under 42
U.S.C. § 1983 against all Defendants (id. ¶¶ 179-92). Approximately three months later, on
December 4, 2019, Defendants moved to dismiss the SAC under Federal Rule of Civil Procedure
1
The Prior Order is also available on commercial databases. See Dipinto v. Westchester Cty., No. 18-CV-793, 2019
WL 4142493 (S.D.N.Y. Aug. 30, 2019). For ease of reference, all citations to the Prior Order herein will be to the
copy filed on ECF.
The third claim for relief indicates that it is “Against All Defendant County.” (SAC at 21). As “there is no individual
liability under the ADA,” Gomez v. New York City Police Dep’t, 191 F. Supp. 3d 293, 302-03 (S.D.N.Y. 2016), the
Court assumes Plaintiff meant to plead this claim for relief against the County only.
2
2
12(b)(6). (Doc. 75; Doc. 77, “Def. Br.”).3 Plaintiff opposed Defendants’ motion on February 12,
2020 (Doc. 80, “Opp’n. Br.”) and the motion was fully briefed with the filing of Defendants’ reply
on March 16, 2020 (Doc. 83, “Reply Br.”). On April 16, 2020, this matter was reassigned to me.
For the reasons set forth below, Defendants’ motion to dismiss is GRANTED in part.
BACKGROUND
While the FAC consisted of one hundred thirty-five (135) paragraphs and pressed five (5)
claims for relief over twenty-one (21) pages, the SAC presents one hundred ninety-two (192)
paragraphs and asserts nine (9) claims for relief over twenty-nine (29) pages. (Compare FAC, with
SAC). The Court assumes the parties’ familiarity with the principal allegations as laid out in the
Prior Order (see Prior Ord. at 2-5), addresses the County’s arguments seriatim, infra, and
incorporates the SAC’s new factual allegations where appropriate.
STANDARD OF REVIEW
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
Defendants filed four Exhibits in support of their new motion. Attached to Defense Counsel’s Declaration were: (1)
the SAC (Doc. 76-1, Peart Decl. Ex. A); (2) a June 19, 2018 Panel Decision from the New York State Workers’
Compensation Board (Doc. 76-2, Peart Decl. Ex. B); (3) a March 13, 2016 message from Plaintiff to Lauro (Doc. 763, Peart Decl. Ex. C); and (4) an August 14, 2016 Performance Review for Plaintiff (Doc. 76-4, Peart Decl. Ex. D).
The Court considers only the March 2016 message from Plaintiff to Lauro requesting a transfer, as Plaintiff argues
that these support the finding of a policy for his § 1983 claims and, as such, is integral to the SAC. (Compare SAC ¶¶
3, 8, 64-66, 73, 83, 118, 121-23, with Opp’n. Br. at 29-31); see also Heckman v. Town of Hempstead, 568 F. App’x
41, 43 (2d Cir. 2014) (“[T]he Court is entitled to consider facts alleged in the complaint and documents attached to it
or incorporated in it by reference, [as well as] documents ‘integral’ to the complaint and relied upon in it . . . .”);
Manley v. Utzinger, No. 10-CV-2210, 2011 WL 2947008, at *1 n.1 (S.D.N.Y. July 21, 2011) (explaining that the
Court may consider “documents incorporated into the complaint by reference, and documents possessed by or known
to the plaintiff and upon which the plaintiff relied in bringing the suit”). The remaining documents, the Workers’
Compensation Board Panel Decision and the August 2016 Performance review, are not considered at this juncture
because: (1) the Court exercises its discretion to deny dismissal on the basis of collateral estoppel; and (2) Plaintiff
claims the performance review was manufactured to justify his unlawful termination. (See discussion infra). These
factual issues may be addressed at a later stage.
3
3
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 plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must
be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences
are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53
(2d Cir. 1996). However, the presumption of truth “‘is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory
statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and
conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
ANALYSIS
I.
Plaintiff’s Failure to Serve Lauro in Compliance with the Prior Order
The Court turns first to Plaintiff’s compliance with the Court’s direction that he “complete
service on Lauro within 30 days of the date of this Opinion, or he will be dismissed from the case.”
(Prior Ord. at 2 n.1 (citing Rutherford v. Fla. Union Free Sch. Dist., No. 16-CV-9778, 2019 WL
1437823, at *20 (S.D.N.Y. Mar. 29, 2019)), 23). Based upon the information set forth in the docket
sheet, as Plaintiff has not complied with this directive, Lauro is dismissed from this case.
4
“The lawful exercise of personal jurisdiction by a federal court requires” among other
things, that “the plaintiff’s service of process upon the defendant must have been procedurally
proper.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012). The
Federal Rules of Civil Procedure instruct in pertinent part:
If a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time. But
if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). This action was filed in January 2018 and Plaintiff’s time to serve Lauro was
extended into September 2019, over a year and a half later. (Prior Ord. at 2 n.1, 23). Yet, while an
amended summons was issued on September 18, 2019 (Doc. 63), Plaintiff has not filed proof of
service, has not requested an extension of time to serve Lauro, and Defendants suggest—in passing
and in reply—that service was never effectuated (see Reply Br. at 8 (“Plaintiff’s continued failure
to serve Lauro . . . .”)). Despite the Court’s direction and the fundamental principle that “[t]he
burden of proving jurisdiction is on the party asserting it,” Robinson v. Overseas Mil. Sales Corp.,
21 F.3d 502, 507 (2d Cir. 1994), Plaintiff provides no reason to believe that Lauro was served in
accordance with the Prior Order’s directive. As such, Lauro is dismissed from this proceeding.4
The § 1983 claims against Lauro would nevertheless be dismissed for lack of personal involvement. Lauro’s presence
is limited to his position as the Commissioner of the department in which Plaintiff worked and the individual who
never responded to Plaintiff’s transfer requests. (See SAC ¶¶ 25-26, 60-61, 64-66, 73, 121-22). Plaintiff insists that
Lauro was either “grossly negligent in supervising subordinates” or “deliberately indifferent” to Plaintiff’s rights.
(Opp’n. Br. at 29-30). While a supervisor’s personal involvement may be pled on facts meeting such descriptions,
Raffaele v. City of New York, 144 F. Supp. 3d 365, 377 (E.D.N.Y. 2015), such facts are not pled here. Plaintiff
conceded that the transfer requests were not complaints of discrimination, and argues, without citation, that Lauro had
an “obligation” to investigate the requests. (Opp’n Br. at 29). As the requests did not identify an unconstitutional
practice, the argument is rejected. See Malik v. City of New York, No. 11-CV-6062, 2012 WL 3345317, at *15
(S.D.N.Y. Aug. 15, 2012) (complaint to jail superintendent was “insufficient to make out a prima facie claim of
personal involvement against supervisors”), adopted by 2012 WL 4475156 (S.D.N.Y. Sept. 28, 2012).
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II.
The NYSHRL Claims (Claims 4-7) Are Not Barred by Collateral Estoppel
Defendants’ first argument concerning the SAC is that Plaintiff’s state law claims are
barred by collateral estoppel. (Def. Br. at 4-6). The Prior Order observed that “Plaintiff’s claims
brought pursuant to New York law are subject to application of traditional collateral estoppel
principles.” (Prior Ord. at 11). Noting that Defendants’ argument on this point ran “less than a
single paragraph” and did “not meaningfully apply the collateral estoppel case law to the facts of
this case,” Judge Karas “decline[d], at this stage, to consider whether Plaintiff’s claims brought
pursuant to New York law are precluded by collateral estoppel.” (Id.). While Defendants’
argument on this point is more robust in the present briefing, the crux of the argument remains
unchanged: collateral estoppel precludes Plaintiff’s claims because “Plaintiff has raised the same
issues of discrimination and retaliation that were already necessarily decided by the” Workers’
Compensation Board. (Def. Br. at 5; see also Doc. 54 at 4-5; Doc. 56 at 4-5). As the Prior Order
noted, “[U]nder New York Law, even in cases where all of the elements of collateral estoppel have
been satisfied, it lies within the discretion of the trial court whether to apply the doctrine of
collateral estoppel, and the doctrine need not be applied even if all of the prerequisites to the
doctrine have been met.” (Prior Ord. at 11 (quoting Sloth v. Constellation Brands, Inc., 924 F.
Supp. 2d 461, 471 (W.D.N.Y. 2013) (alteration in original)). As Defendants offer no reason to
disturb the previous ruling on this argument, the Court will exercise the discretion permitted under
New York law and deny the motion to dismiss based on a theory of collateral estoppel.5 Defendants
may raise this argument again at a later stage on a more fulsome record. (Id. at 11-12).
5
Defendants suggest, in passing, that the claims are barred by the election of remedies doctrine. (Def. Br. at 5).
However, Plaintiff’s charge was dismissed by the New York State Division of Human Rights for administrative
convenience. (SAC ¶¶ 14-17). Such a dismissal is an exception to the election of remedies doctrine Defendants seem
to reference. See York v. Ass’n of Bar of City of New York, 286 F.3d 122, 127 n.2 (2d Cir. 2002); N.Y. Exec. Law §
297(9).
6
III.
A Notice of Claim Is Required to Proceed on the NYSHRL Claims (Claims 4-7) Against
the County
Defendants argue next that “all state law claims asserted should be dismissed for Plaintiff’s
failure to comply with a condition precedent: serving a notice of claim.” (Def. Br. at 6). Plaintiff
argues that a notice of claim is not required for claims under the NYSHRL. (Opp’n. Br. at 8-10).
On this point, Defendants are correct to the extent that a timely notice of claim is required to pursue
the NYSHRL claims against the County and Bryant in his official capacity.
As Plaintiff seeks to vindicate state law claims, those claims are “subject to state procedural
rules.” Russell v. Westchester Cmty. Coll., No. 16-CV-1712, 2017 WL 4326545, at *5 (S.D.N.Y.
Sept. 27, 2017) (internal quotation marks omitted). New York State County Law provides, in
pertinent part:
Any claim or notice of claim against a county for damage, injury or
death, or for invasion of personal or property rights, of every name
and nature . . . and any other claim for damages arising at law or in
equity, alleged to have been caused or sustained in whole or in part
by or because of any misfeasance, omission of duty, negligence or
wrongful act on the part of the county, its officers, agents, servants
or employees must be made and served in compliance with section
fifty-e of the general municipal law. Every action upon such claim
shall be commenced pursuant to the provisions of section fifty-i of
the general municipal law.
N.Y. Cty. Law § 52(1). Plaintiff cites precedent from before the turn of the century to support his
position that a notice of claim is not required for claims under the NYSHRL (Opp’n. Br. at 9-10),
but that is not an accurate statement of the law as it exists today. “It is well-established that a party
bringing a claim pursuant to the NYSHRL against a county located in the State of New York must
serve a notice of claim upon the county . . . .” Costabile v. Cty. of Westchester, New York, 485 F.
Supp. 2d 424, 430 (S.D.N.Y. 2007); see also Styles v. Westchester Cty., No. 18-CV-12021, 2020
WL 1166404, at *6 (S.D.N.Y. Mar. 10, 2020) (concluding “that the notice of claim requirements
7
set out in County Law Section 52 do generally apply to [NYSHRL] Claims for employment
discrimination and retaliation against a county” (internal quotation marks omitted)); Rodriguez v.
Nassau Cty., No. 16-CV-2648, 2019 WL 4674766, at *16 (E.D.N.Y. Sept. 25, 2019) (dismissing
plaintiff’s NYSHRL claims for failure to file a notice of claim); Russell, 2017 WL 4326545, at *6
(concluding that “a notice of claim remains a prerequisite to” NYSHRL claims against a county);
Williams v. Cty. of Nassau, No. 15-CV-7098, 2017 WL 1216566, at *6 (E.D.N.Y. Mar. 30, 2017)
(“Since Plaintiff failed to timely file a notice of claim, the NYHRSL [sic] claims are dismissed.”).
However, while the notice of claim requirement applies, Defendants’ argument that all
state law claims must be dismissed “sweeps too broadly” given the language of N.Y. County Law
§ 52(1). See Hamilton v. Cty. of Onondaga, New York, No. 15-CV-1333, 2018 WL 4554496, at
*18 (N.D.N.Y. Sept. 21, 2018). This conclusion is the result of statutory interpretation. Section
52(1) requires that a notice of claim be “served in compliance with” N.Y. General Municipal Law
§ 50-e. N.Y. Cty. Law § 52(1). Under Section 50-e, if an action is commenced against an employee
and not the County proper, “service of the notice of claim upon the public corporation shall be
required only if the corporation has a statutory obligation to indemnify such person under this
chapter or any other provision of law.” N.Y. Gen. Mun. Law § 50-e(1)(b) (emphasis added).
Phrased differently, “‘the requirements of Sections 50-e and 50-i are not conditions precedent to
the commencement of an action against a county official or employee unless the county is required
to indemnify such person,’ and ‘[t]he County’s duty to indemnify these employees turns on
whether they were acting within the scope of their employment.’” Johnson v. Cty. of Nassau, No.
10-CV-6061, 2014 WL 4700025, at *24 (E.D.N.Y. Sept. 22, 2014) (quoting Wharton v. Cty. of
Nassau, No. 10-CV-265, 2013 WL 4851713, at *15 (E.D.N.Y. Sept. 10, 2013) (alteration in
original)); see also Dilworth v. Goldberg, No. 10-CV-2224, 2011 WL 4526555, at *7 (S.D.N.Y.
8
Sept. 30, 2011) (notice of claim required because the plaintiff alleged specifically that defendants
acted “within the scope of their employment”).6
Bearing in mind that “workplace harassment and other intentional torts are generally not
considered conduct within the scope of employment since they are often motivated by personal
reasons,” Hamilton, 2018 WL 4554496, at *18 (internal quotation marks omitted), Defendants
make no argument that the County has a responsibility to indemnify Bryant or that the allegations
were solely within the scope of his employment (see Def. Br. at 6-7; Reply Br. at 1-2). “Accepting
the allegations in the [Second] Amended Complaint as true, as we must at this stage, the conduct
of defendants appears to fall outside the scope of their employment, and defendants do not argue
otherwise.” Costabile, 485 F. Supp. 2d at 432. Accordingly, the NYSHRL claims against the
County and Bryant in his official capacity are dismissed for failure to serve a notice of claim. The
claims against Bryant in his individual capacity, however, shall proceed. Should they be so
advised, Defendants may revive this argument at the summary judgment stage on a fuller record.
IV.
Plaintiff Pled ADA (Claim 3) and NYSHRL (Claim 6) Hostile Work Environment Claims
Defendants argued in their initial brief that Plaintiff failed to plead a hostile work
environment claim under the NYSHRL only and later adjusted their argument to encompass both
the NYSHRL and ADA hostile work environment claims. (Compare Def. Br. at 7-9, with Reply
Br. at 2-3). While the Court need not consider arguments raised for the first time in reply
memoranda, Clubside, Inc. v. Valentin, 468 F.3d 144, 159 n.5 (2d Cir. 2006) (“[W]e generally do
not consider arguments that are raised for the first time in a reply brief”) (Sotomayor, J.), as the
standards are generally the same and Plaintiff suffers no prejudice, the Court considers the
6
The Court notes that Defendants quote N.Y. General Municipal Law § 50-k(6)(a) in making their argument. (Def.
Br. at 6). That provision, “Civil actions against employees of the city of New York,” is inapplicable to this action.
N.Y. Gen. Mun. Law § 50-k.
9
argument and concludes that Plaintiff has stated a claim for hostile work environment under both
statutory regimes.
To state a claim for hostile work environment under the ADA or the NYSHRL against an
employer, Plaintiff must allege: “(1) that the harassment was sufficiently severe or pervasive to
alter the conditions of [his] employment and create an abusive working environment[;] and (2) that
a specific basis exists for imputing the objectionable conduct to the employer.” Fox v. Costco
Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019) (quoting Alfano v. Costello, 294 F.3d 365, 373
(2d Cir. 2002) (first alteration in original)); Viruet v. City of New York, No. 16-CV-8327, 2019
WL 1979325, at *17 (S.D.N.Y. May 3, 2019) (“The same general standard also applies to hostile
work environment claims brought under the NYSHRL . . . .”). The hostility must, of course,
“occur[] because of a protected characteristic.” Chang v. New York City Dep’t of Educ., 412 F.
Supp. 3d 229, 248 (E.D.N.Y. 2019) (quoting Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015));
see also Ruiz v. New Avon LLC, No. 18-CV-9033, 2019 WL 4601847, at *15 n.14 (S.D.N.Y. Sept.
22, 2019) (explaining that the environment must exist “because of the plaintiff’s [protected
characteristic]” (alteration in original, internal quotation marks omitted)).
The first element “is subject to both subjective and objective measurement: the plaintiff
must demonstrate that []he personally considered the environment hostile, and that the
environment rose to some objective level of hostility.” Viruet, 2019 WL 1979325, at *17 (quoting
Leibovitz v. New York City Trans. Auth., 252 F.3d 179, 188 (2d Cir. 2001)). As to the objective
severity, “the workplace must be so severely permeated with discriminatory intimidation, ridicule,
and insult that the terms and conditions of [the employee’s] employment were thereby altered.”
Stryker v. HSBC Secs. (USA), No. 16-CV-9424, 2020 WL 5127461, at *15 (S.D.N.Y. Aug. 31,
2020) (alteration in original, internal quotation marks omitted). “Courts look to ‘the totality of the
10
circumstances to determine whether a plaintiff has met this burden, including proof of the
frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with [the
plaintiff’s] work performance.’” Id. (quoting Fox, 918 F.3d at 74 (alterations in original)); see also
Zhao v. Keuka Coll., 264 F. Supp. 3d 482, 495 (W.D.N.Y. 2017) (“When evaluating a hostile
environment claim, the Court must not view individual incidents in isolation . . . but should
consider the totality of the circumstances . . . .” (internal quotation marks omitted)). As to the
second element, Plaintiff must “show[] that ‘the employer knew (or reasonably should have
known) about the harassment but failed to take appropriate remedial action.’” Rella v. New York
State Off. of Mental Health, No. 19-CV-723, 2020 WL 918767, at *5 (N.D.N.Y. Feb. 26, 2020)
(quoting Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004)).7
Here, Defendants argue only that Plaintiff did not plead an objectively hostile work
environment. (Def. Br. at 7-9; Reply Br. at 2-3). The Court disagrees. Plaintiff pled that: (1) on
February 5, 2016, the day he was injured, Bryant directed Plaintiff not to fill out a workers’
compensation claim, warned Plaintiff that submitting a claim would jeopardize Plaintiff’s
employment, and mused that if Plaintiff’s injury prevented him from working that Plaintiff was
“not cut out to work” for the County (SAC ¶¶ 38, 42-46); (2) on March 2, 2016, Bryant berated
Plaintiff for being “one of the worst” employees but, when pressed for an explanation, admitted
he could not articulate a reason (id. ¶¶ 56-58); (3) on March 12, 2016, the day after Plaintiff’s first
Defendants have not argued that Bryant would not qualify as Plaintiff’s employer under the NYSHRL. (See
generally, Def. Br.; Reply Br.). However, even if Bryant did not meet that definition, the absence of an “employer”
would not necessarily bar liability, as Plaintiff presents also a claim for aiding and abetting under the NYSHRL (SAC
¶¶ 162-64). See Johnson v. Cty. of Nassau, 82 F. Supp. 3d 533, 538 (E.D.N.Y. 2015) (affirming on reconsideration
that, although the NYSHRL claims were dismissed against the county for plaintiff’s failure to serve a notice of claim,
the individual defendant could be held individually liable for a NYSHRL hostile work environment claim “as an aider
and abettor”).
7
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attempt to request a transfer, Bryant told Plaintiff that the latter got “injured too easily to work”
for the County (id. ¶¶ 60-62); (4) on March 18, 2016, Bryant warned Plaintiff against complaining
about discriminatory treatment and stated, “Remember[,] you’re still on probation, the County
looks down on things like this” (id. ¶¶ 67-69); (5) on April 12, 2016, Bryant made Plaintiff walk
“over a mile” needlessly, while aware of Plaintiff’s disability (id. ¶ 71-73); (6) on April 25, 2016,
Bryant again criticized Plaintiff’s performance and Plaintiff was advised by another employee, “I
don’t know what [Bryant’s] problem is with you, but just try to [sic] your best to avoid him.
[Bryant] has a target on your back” (id. ¶¶ 74-75); (7) on May 2, 2016, Bryant directed that Plaintiff
work permanently only in “Samples,” the most physically demanding position, despite the fact
that employees usually rotated through that position to keep the “workload fair,” in order to injure
Plaintiff (id. ¶¶ 76-85); (8) on May 20, 2016, Bryant advised another employee that Plaintiff “is
useless, I’m going to make his life hell until he quits” (id. ¶ 89); (9) on June 20, 2016, Bryant
demanded that Plaintiff’s immediate supervisor be “harder on” Plaintiff (id. ¶ 90); and (10) on
August 23, 2016 Bryant terminated Plaintiff, stating, “I don’t have to give you a reason, now take
your shit and go!” (id. ¶¶ 91-92).
Looking to the totality of the circumstances, accepting the above-cited allegations as true
while giving Plaintiff the benefit of every inference, and bearing in mind that “the Second Circuit
has cautioned against ‘setting the bar too high’ at the motion to dismiss stage,” Rella, 2020 WL
918767, at *5 (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)) (denying motion to
dismiss ADA hostile work environment claim), these allegations suggest plausibly that Plaintiff
suffered an objectively hostile work environment that altered the conditions of his employment for
the worse from the time he injured his foot until his termination. See, e.g., id. (plaintiff alleged that
she “was subjected to mistreatment by [a coworker] on multiple occasions” over four months);
12
Salas v. New York City Dep’t of Investigation, 298 F. Supp. 3d 676, 684-85 (S.D.N.Y. 2018)
(denying motion to dismiss hostile work environment claim where coworker mocked plaintiff’s
stutter on a daily basis); Arnold v. Research Found. for State Univ. of New York, 216 F. Supp. 3d
275, 290 (E.D.N.Y. Oct. 20, 2016) (finding amendment would plausibly state a hostile work
environment claim against defendants whose “comments about the Plaintiff’s use of a handicapped
bathroom, cane and freight elevator plausibly support the allegation that Plaintiff faced harassment
that altered her employment”); Zavala v. Cornell Univ., 9 F. Supp. 3d 213, 220 (N.D.N.Y. 2014)
(denying motion for judgment on the pleadings because plaintiff, who suffered from Type 1
Diabetes, stated hostile work environment claim where his supervisors’ actions included “their
threats regarding Plaintiff’s use of internal human resources mechanisms” and assigning Plaintiff
“tasks that required more walking,” while aware of his mobility restrictions). Consequently,
Defendants’ motion to dismiss the ADA and NYSHRL hostile work environment claims is denied.
V.
Plaintiff Pled that He Requested a Reasonable Accommodation (Claim 1)
Under the ADA, determining whether a plaintiff sought a reasonable accommodation is
not concerned about “formalisms about the manner of the request, but whether the employee . . .
provides the employer with enough information that, under the circumstances, the employer can
be fairly said to know of both the disability and desire for an accommodation.” Kurlender v.
Ironside Grp., Inc., No. 18-CV-3839, 2019 WL 1317405, at *3 (E.D.N.Y. Mar. 22, 2019) (quoting
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)); see also Quadir v. New York
State Dep’t of Labor, 39 F. Supp. 3d 528, 540 (S.D.N.Y. 2014) (same); Goonan v. Fed. Reserve
Bank of New York, No. 12-CV-3859, 2014 WL 3610990, at *5 (S.D.N.Y. July 22, 2014) (same).
The Court concluded previously that Plaintiff pled facts sufficient to suggest that Bryant perceived
Plaintiff as disabled. (See Prior Ord. at 14, 16). The question for this Court, then, is whether
13
Plaintiff pled that his “employer c[ould] be fairly said to know of . . . [Plaintiff’s] desire for an
accommodation.”8
Drawing all inferences in Plaintiff’s favor from the facts pled and considering “the
circumstances” under which Plaintiff sought transfers and complained to his supervisor throughout
March 2016 with comments like, “I have an injured foot,” “This is a lot of walking, it’s hurting
my foot. Jeff [Bryant] knows I have an injured foot, why did he put me on Samples?” (SAC ¶ 87),
the Court finds that Plaintiff pled plausibly that Defendants knew of Plaintiff’s disability as well
as his “desire” for an accommodation of being transferred to a less physically demanding duty
station—a request that, it seems, would at the very least place Plaintiff back into the normal
practice of rotating through locations. (Id. ¶¶ 77-85, 102). Defendants argue that “[w]alking
throughout the facility is an essential function of Plaintiff’s former position,” that the requests did
not seek “different duties, different position[s], or even mention his injury,” and that no
accommodation would have been possible. (Def. Br. at 15). These points, valid or not, are
inappropriate to consider at this stage. “Once a plaintiff has identified a facially reasonable
accommodation, the defendant bears the burden of ‘persuading the factfinder that the plaintiff’s
proposed accommodation is unreasonable.’” Novick v. Vill. of Wappingers Falls, New York, 376
F. Supp. 3d 318, 337 (S.D.N.Y. 2019) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131,
138 (2d Cir. 1995) (emphasis in original)).
8
Although the parties dispute whether Plaintiff sought a reasonable accommodation, none of their submissions
identify the test by which a court can determine whether a plaintiff who did not formally submit a request for
reasonable accommodation may, nevertheless, be deemed to have sought one from their employer. (See generally Def.
Br. at 14-15; Opp’n. Br. at 18-20; Reply Br. at 4-5). In light of the parties’ failure to brief the issue, to the extent
necessary, the Court assumes without deciding that the standard applied to determine whether Plaintiff requested a
reasonable accommodation under the ADA is synonymous with the standard applied under the NYSHRL. See Reid v.
Mary’s N.E. at Herald Sq., No. 102458/2012, 2013 WL 1808087, at *1 (Sup. Ct. Apr. 17, 2013) (noting on claims
under the NYSHRL and New York City Human Rights Law that “a request for accommodation need not take a specific
form” (internal quotation marks omitted)); Miloscia v. B.R. Guest Holdings LLC, No. 116881/2009, 2010 WL
9949235, at *6 (Sup. Ct. July 13, 2010) (same).
14
VI.
Plaintiff Pled a Protected Activity for an ADA Retaliation Claim (Claim 2)
Defendants argue that Plaintiff did not plead the existence of a protected activity necessary
to state either an ADA or NYSHRL retaliation claim. (Def. Br. at 15-16; Reply Br. at 5). The Court
disagrees. “[T]he elements of a retaliation claim” under the ADA or the NYSHRL “are [1] a
plaintiff was engaged in protected activity; [2] the alleged retaliator knew that plaintiff was
involved in protected activity; [3] an adverse decision or course of action was taken against
plaintiff; and [4] a causal connection exists between the protected activity and the adverse action.”
Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir. 2002) (internal quotation
marks omitted); see also Dodd v. City Univ. of New York, --- F. Supp. 3d ---, 2020 WL 5750715,
at *36 (S.D.N.Y. Sept. 25, 2020) (“Retaliation claims under the . . . ADA, and NYSHRL are
governed by the same standards.”). In the Prior Order, Judge Karas found that Plaintiff failed to
plead sufficiently the protected activity identified, namely objecting to Bryant’s discriminatory
behavior. Specifically, Judge Karas concluded:
Reading the allegations in the Amended Complaint—which are
somewhat thin—together with the statements made by Plaintiff in
his second transfer request, the Court cannot conclude that Plaintiff
plausibly ‘opposed an[] act . . . made unlawful by this chapter,’ such
that it would be said he engaged in protected activity for purposes
of a retaliation claim.
(Prior Ord. at 21 (internal citations omitted)). Although the recitation of the retaliation claims for
relief in the FAC and the SAC are identical (compare FAC ¶¶ 122-25, 130-32, with SAC ¶¶ 13942, 153-55), Plaintiff suggests now that the protected activities were: (1) intending to file a
workers’ compensation claim; and (2) requesting a reasonable accommodation. (Opp’n. Br. at 2124). Upon review, the Court finds that Plaintiff has pled properly a protected activity with respect
to his ADA retaliation claim but not with respect to his NYSHRL retaliation claim.
15
Neither requesting a reasonable accommodation nor filing a workers’ compensation claim
constitute protected activities under the NYSHRL. See Mejia v. City of New York, No. 17-CV2696, 2020 WL 2837008, at *13 (E.D.N.Y. May 30, 2020) (explaining that, under the NYSHRL,
“a request for a reasonable accommodation is not a protected activity for purposes of a retaliation
claim” (internal quotation marks omitted)); Cho v. Young Bin Café, 42 F. Supp. 3d 495, 508
(S.D.N.Y. 2013) (request for workers’ compensation benefits “is simply not a protected activity”);
D’Amico v. City of New York, 73 N.Y.S.3d 540, 558-59 (App. Div. 2018) (“Neither plaintiff’s
request for a reasonable accommodation nor his filing of an internal workers’ compensation claim
constitutes protected activities for purposes of the State and City HRLs.” (internal citations
omitted)); 18 N.Y. Jur. 2d Civil Rights § 121 (“Under both state and city human rights laws, a
request for reasonable accommodation is not a protected activity for purposes of a retaliation
claim.”). Accordingly, the NYSHRL retaliation claim must be dismissed. However, although filing
a workers’ compensation claim is likewise not a protected activity under the ADA, Boyd v. Broome
Cmty. Coll., No. 14-CV-397, 2015 WL 6962498, at *11 (N.D.N.Y. Nov. 10, 2015), requesting a
reasonable accommodation does qualify as such an activity. See Weixel, 287 F.3d at 149 (finding
that “seeking reasonable accommodation of . . . disability . . . constitutes protected activity” under
the ADA); Vale v. Great Neck Water Poll. Control Dist., 80 F. Supp. 3d 426, 439 (E.D.N.Y. Jan.
20, 2015) (noting that “[m]aking requests for reasonable accommodations for a disability is
protected activity” under the ADA (alteration in original, internal quotation marks omitted)).
As Plaintiff has pled plausibly that he sought a reasonable accommodation under the ADA
(see discussion supra), he pled a protected activity for his ADA retaliation claim. The NYSHRL
retaliation claim, however, is dismissed.
16
VII.
Plaintiff Pled a Prima Facie Case of Discrimination Under the ADA (Claim 1)
“The elements of a [discrimination] claim under the ADA are that: (1) the employer is
subject to the ADA; (2) the plaintiff is disabled within the meaning of the ADA or perceived to be
so by h[is] employer; (3) []he was otherwise qualified to perform the essential functions of the job
with or without reasonable accommodation; (4) []he suffered an adverse employment action; and
(5) the adverse employment action was imposed because of h[is] disability.” Dooley v. JetBlue
Airways Corp., 636 F. App’x 16, 21 (2d Cir. 2015) (quoting Davis v. New York City Dep’t of
Educ., 804 F.3d 231, 235 (2d Cir. 2015) (first alteration in original)). Defendants insist that the
Court must dismiss the ADA discrimination claim because: (1) Plaintiff did not suffer from a
qualifying disability; (2) Defendants never perceived Plaintiff as disabled; and (3) Plaintiff did not
suffer an adverse employment action because of his disability. (Def. Br. at 9-14; Reply Br. at 3-4).
The Court rejects Defendant’s first two arguments—specifically that Plaintiff has not pled
facts establishing that he suffered from a qualifying disability under the ADA and that Defendants
never perceived him as disabled (Def. Br. at 9-11)—because Judge Karas, while reviewing the
weaker FAC, already concluded otherwise in the Prior Order. (See Prior Ord. at 12-17). On the
first argument, Judge Karas concluded that Plaintiff’s “allegations suffice, at this stage of the
litigation, to plead that he suffered from a physical impairment that substantially limited a major
life activity, and that he was regarded by his employer as having a physical impairment such that
he qualifie[d] as disabled within the meaning of the ADA.” (Id. at 14 (internal citations omitted)).
As to the second argument, Judge Karas determined that “Plaintiff alleged facts plausibly
suggesting that Bryant—the Plant Superintendent who terminated Plaintiff—regarded Plaintiff as
having a disability.” (Id. at 16 (internal citations omitted); see also id. at 14). Making the same
previously rejected arguments to a new judge does not change the result. As the law has not
17
changed and Plaintiff has only augmented his allegations, the Court concludes, as Judge Karas
determined already, that Plaintiff pled plausibly facts identifying a qualifying disability under the
ADA and Defendants’ awareness of it.
Defendants’ third argument, that Plaintiff did not plead an adverse employment action,
stems from the premise that “[n]either Plaintiff’s assignment to Samples nor the interactions
between Defendant Bryant and Plaintiff amount to adverse employment acts” and “Plaintiff failed
to make a plausible showing that he was terminated due to his alleged disability . . . .” (Def. Br.
13-14). The Court rejects this argument. “An adverse employment action under the ADA refers to
a ‘materially adverse change in the terms and conditions of employment’ that is ‘more disruptive
than a mere inconvenience or an alteration of job responsibilities.’” Pinto v. New York City Admin.
for Children’s Servs., No. 18-CV-1852, 2018 WL 4333990, at *9 (S.D.N.Y. Sept. 11, 2018)
(quoting Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)); see
also Smith v. N. Shore-Long Is. Jewish Health Sys., 286 F. Supp. 3d 501, 525-26 (E.D.N.Y. 2018)
(“Under the ADA, ‘[a] plaintiff suffers an adverse employment action when []he experiences a
materially adverse change in the terms and conditions of employment.’” (quoting Dechberry v.
New York City Fire Dep’t, 124 F. Supp. 3d 131, 147 (E.D.N.Y. 2015) (first alteration in original))).
Such qualifying circumstances “include a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices unique to a particular situation.” Smith, 286
F. Supp. 3d at 526 (quoting Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)).
“[D]isciplinary memoranda and evaluations” can qualify as “adverse employment actions” so long
as “they affect ultimate employment decisions such as promotion, wages, or termination.”
18
Campbell v. New York City Trans. Auth., 93 F. Supp. 3d 148, 168 (E.D.N.Y. 2015) (alteration in
original).
Here, Plaintiff alleged sufficiently at least two adverse employment actions: (1) Plaintiff’s
direct supervisor, under threat of termination from Bryant, submitted a poor performance review
that could be used as a sham justification to terminate Plaintiff (SAC ¶¶ 94-95); and (2) Plaintiff
was terminated (id. ¶¶ 91-93). According to the SAC, the poor performance review was used as
an ex post facto justification for Plaintiff’s termination (id. ¶¶ 91-95), and both the review and the
termination itself were products of Bryant’s campaign to “make [Plaintiff’s] life hell until
[Plaintiff] quit[]” because of Plaintiff’s injury (see id. ¶¶ 34-46, 56-58, 62, 67, 71-73, 76-85, 8995). Moreover, Plaintiff’s allegations provide “plausible support to a minimal inference of
discriminatory motivation [that is required] at the pleading stage.” Kopchik v. Town of East
Fishkill, New York, 759 F. App’x 31, 37 (2d Cir. 2018) (quoting Littlejohn v. City of New York,
795 F.3d 297, 311 (2d Cir. 2015)).
VIII.
Plaintiff Has Not Pled a Policy Sufficient to Proceed under Monell (Claims 8-9)
Under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) and its
progeny, a municipality may be held liable where a plaintiff’s constitutional rights are violated
because of a municipal policy or custom. See Jimenez v. City of New York, No. 18-CV-7273, 2020
WL 1467371, at *3 (S.D.N.Y. Mar. 26, 2020) (“Plaintiff must plead allegations that ‘the
government body itself subjects a person to a deprivation of rights or causes a person to be
subjected to such deprivation.’” (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011))). “[T]o
prevail on a claim against a municipality under section 1983 based on acts of a public official, a
plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a
constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the
19
municipality caused the injury.” Triano v. Town of Harrison, New York, 895 F. Supp. 2d 526, 531
(S.D.N.Y. 2012) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)). Defendants
assert two arguments against Plaintiff’s Monell claim9 in this scenario: (1) as Plaintiff has “no
property rights in his position” he did not suffer a constitutional deprivation; and (2) Plaintiff failed
to plead “the existence of a single policy or custom” necessary to state a Monell claim. (Def. Br.
at 16-19; Reply Br. at 5-7).
Defendants’ first argument, that there is no constitutional deprivation because Plaintiff has
no “property rights in his position” (Def. Br. at 18), misconstrues Plaintiff’s claim. Plaintiff alleged
that “Defendants denied equal protection of the laws by discriminating against [Plaintiff] on the
basis of protected activity, disability and/or perceived disability.” (SAC ¶ 168; see also Opp’n Br.
at 25-26). Plaintiff, even as a probationary employee, is not barred from proceeding on a claim
that his employer violated his right to equal protection. In fact, Desir v. Bd. of Co-op. Educ. Servs.,
No. 07-CV-1994, 2008 WL 4508735 (E.D.N.Y. Sept. 30, 2008)—cited by Defendants for this
proposition (Def. Br. at 17-18)—supports this conclusion. In that case, the court dismissed the
former teacher’s “substantive” and “procedural due process” claims because the plaintiff’s status
as a probationary employee did not confer a protected property interest. Id. at *2-3. However, that
court refused to dismiss the plaintiff’s claim that school administrators and board members
discriminated against him on the basis of race, in violation of his right to equal protection under
the Fourteenth Amendment. Id at *3; see also Melendez v. Cty. of Westchester, No. 17-CV-9637,
9
The eighth and ninth claims for relief are identical, save for their titles and one additional reference to termination
in the latter claim for relief. (Compare SAC ¶¶ 165-78, with id. ¶¶ 179-91). Accordingly, the ninth claim for relief is
dismissed as duplicative of the eighth. See Macineirghe v. Cty. of Suffolk, No. 13-CV-1512, 2015 WL 4459456, at
*16 (E.D.N.Y. July 21, 2015) (“[I]t is within the Court’s discretion to dismiss duplicative claims sua sponte.”); Bd. of
Trs. of IBEW Local 43 Elec. Contractors Health & Welfare & Pension Funds v. D’Arcangelo & Co., No. 12-CV1251, 2012 WL 6681765, at *2 (N.D.N.Y. Dec. 21, 2012) (“Where, as here, separately pleaded claims are based upon
the same operative facts and do not allege distinct damages, the duplicative claims should be dismissed.”).
20
2019 WL 251731, at *9-11 (S.D.N.Y. Jan. 16, 2019) (denying dismissal of probationary
employee’s claim for violation of equal protection but dismissing employee’s due process claims).
Defendants’ second argument, that Plaintiff failed to plead “the existence of a single policy
or custom that would implicate the County” (Def. Br. at 19), fares better. There are several ways
in which Plaintiff may demonstrate that an official policy or custom existed, including:
(1) a formal policy which is officially endorsed by the municipality;
(2) actions taken or decisions made by government officials
responsible for establishing municipal policies which caused the
alleged violation of the plaintiff’s civil rights; (3) a practice so
persistent and widespread that it constitutes a ‘custom or usage’ and
implies the constructive knowledge of policy-making officials; or
(4) a failure by official policy-makers to properly train or supervise
subordinates to such an extent that it amounts to deliberate
indifference to the rights of those with whom municipal employees
will come into contact.
Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 390 (S.D.N.Y. 2013) (quoting Moray
v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996)). The policy “may be pronounced or tacit
and reflected in either action or inaction.” Davis v. City of New York, 959 F. Supp. 2d 324, 338
(S.D.N.Y. 2013) (quoting Cash v. Cty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011)).
Plaintiff alleged that he was discriminated against “on the basis of protected activity,
disability and/or perceived disability.” (SAC ¶ 168). As to establishing a policy, Plaintiff argues
that his pleading supports a finding of a persistent and widespread practice (Opp’n. Br. at 28), a
failure by Lauro to take action despite knowledge of the practice (id. at 29-30), and the tacit
admission of a policy by Bryant (id. at 30-31). None of these arguments succeed. As to the first
theory, Plaintiff relies on the claim that Bryant warned him against filling out a workers’
21
compensation claim and that Plaintiff was aware of at least10 two others against whom Bryant
“retaliated” until they quit. (Id. at 28-29; SAC ¶¶ 46-48). This argument fails because filing a
workers’ compensation claim is not a protected activity, (see discussion supra), and simply naming
three people does not—without more—constitute a widespread policy, see Smith v. Westchester
Cty., No. 19-CV-1283, 2019 WL 5816120, at *5 (S.D.N.Y. Nov. 7, 2019) (dismissing Monell
claim where plaintiff “describe[d] only his own experiences” and “fail[ed] to provide any factual
details” regarding others’ experiences); Oriental v. Vill. Of Westbury, No. 18-CV-3878, 2019 WL
4861413, at *4 (E.D.N.Y. Oct. 2, 2019) (dismissing Monell claim where “the complaint contains
only a detailed account of plaintiffs’ own experiences”). As to the third11 argument, Plaintiff insists
that Bryant tacitly acknowledged an official policy “of ignoring discrimination and threats against
employees” when Bryant warned him against filing a complaint. (Opp’n. Br. at 30). In full, the
cited allegation reads:
On or about March 18, 2016, Defendant BRYANT continued to
intimidate Plaintiff DIPINTO by stopping Plaintiff on his way to a
meeting with COUNTY’s employee TOM CASH. When Defendant
BRYANT stopped Plaintiff DIPINTO, he threatened, “DON’T
MAKE A BIG DEAL ABOUT THIS. IF YOU FILE A
COMPLAINT YOUR JOB WILL BE IN JEOPARDY,” and
“REMEMBER YOU’RE STILL ON PROBATION, THE
COUNTY LOOKS DOWN ON THINGS LIKE THIS.”
(SAC ¶ 67 (bold and capitalization in original)). Whatever this statement may establish with
respect to a policy concerning individuals who complain about discrimination, Plaintiff concedes
that he never complained about discrimination. (Opp’n. Br. at 29). Accordingly, the import of any
The SAC reads “previous operators named Rich, Mike Webber, and several others.” (SAC ¶ 48). Plaintiff’s
opposition brief records it as “Rich, Mike, Webber, and several others.” (Opp’n. Br. at 28).
10
Insofar as Plaintiff seeks to establish the existence of a policy based on Lauro’s action or inaction, see discussion
supra at n.1.
11
22
policy embodied therein has no bearing on his claim concerning discrimination stemming from
“the basis of protected activity, disability and/or perceived disability.” (SAC ¶ 168).
As Plaintiff failed to plead the existence of a municipal policy that violated his right to
equal protection, the Monell claim is dismissed.
IX.
Bryant Is Not Entitled to Qualified Immunity at this Stage
The final argument for consideration is Defendants’ argument that Bryant is entitled to the
yet-to-be pled defense of qualified immunity. (See Def. Br. at 20-21; Reply Br. at 8-9). “Qualified
immunity protects public officials from liability for civil damages when one of two conditions is
satisfied: (a) the defendant’s action did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not violate such law.” Garcia v. Does,
779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir.
2007)). “A Government official's conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Almighty Supreme Born Allah v.
Milling, 876 F.3d 48, 59 (2d Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
If an official’s belief that his action does not violate clearly established law is “objectively
reasonable,” he is shielded from liability by qualified immunity. Cooper v. City of New Rochelle,
925 F. Supp. 2d 588, 608 (S.D.N.Y. 2013); see also al-Kidd, 563 U.S. at 743 (“Qualified immunity
gives government officials breathing room to make reasonable but mistaken judgments . . . .[I]t
protects all but the plainly incompetent or those who knowingly violate the law.” (internal
quotation marks omitted)). However, on a motion to dismiss, Plaintiff’s entitlement to qualified
immunity must “appear on the face of the complaint.” Hyman v. Abrams, 630 F. App’x 40, 42 (2d
Cir. 2015) (internal quotation marks omitted). That is not the case here.
23
Defendants argue that “[t]he actions taken by Defendant Bryant, specifically the decision
to terminate Plaintiff due to unsatisfactory job performance, were objectively reasonable within
the purview of his statutory duties.” (Def. Br. at 20-21). This argument is little different from the
argument advanced in support of dismissing the FAC (compare Def. Br. at 20-21, with Doc. 54 at
7-8 and Doc. 56 at 5), which Judge Karas concluded, “merely restate[d] the qualified immunity
caselaw without meaningfully applying it to the facts of this case” (Prior Ord. at 7 n.4). What’s
more, to accept Defendants’ argument would mean disregarding Plaintiff’s allegations, looking
beyond the SAC, and accepting Defendants’ version of events as true. That, this Court will not do.
See Serrata v. Givens, No. 18-CV-2016, 2019 WL 1597297, at *5 (E.D.N.Y. Apr. 15, 2019)
(noting that defendants’ qualified immunity arguments “were all predicated on the court’s
acceptance, and crediting, of materials outside the pleadings”); Pollack v. Holanchock, No. 10CV-2402, 2011 WL 4867558, at *5 (S.D.N.Y. Oct. 13, 2011) (rejecting defendants’ qualified
immunity argument on a motion to dismiss because it concerned issues of fact). Although Bryant
is “not entitled to qualified immunity on the face of the complaint . . . a factual basis for qualified
immunity may arise as the proceedings develop.” Terranova v. New York, 144 F. App’x 143, 14647 (2d Cir. 2005) (internal quotation marks omitted). Defendants may revisit this argument after
developing the record. The Court simply cannot conclude from the four-corners of the SAC that
Bryant is entitled to qualified immunity at this early pleading stage.
CONCLUSION
Based upon the foregoing, Defendants’ motion to dismiss the SAC is GRANTED in part.
Plaintiff’s claims against Lauro, the NYSHRL claims against the County and Bryant in his official
capacity (Claims 4-7), the NYSHRL retaliation claim against Bryant in his individual capacity
(Claim 5), and the Monell claim (Claims 8-9) are DISMISSED. Plaintiff’s ADA discrimination
24
(Claim 1), retaliation (Claim 2), and hostile work environment (Claim 3) claims against the
County, and his NYSHRL discrimination (Claim 4), hostile work environment (Claim 6), and
aiding and abetting (Claim 7) claims against Bryant in his individual capacity, shall proceed to
discovery. The Court will issue an Initial Pretrial Conference Order and set a conference date in
short order.
The Clerk of Court is respectfully directed to terminate the pending motion sequence (Doc.
75) and terminate Defendant Thomas Lauro from this action.
SO ORDERED:
Dated:
New York, New York
October 19, 2020
PHILIP M. HALPERN
United States District Judge
25
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