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August 25, 2005.

CITY OF NEW YORK, et al. Defendants.

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge


I. Introduction

This is an employment discrimination and civil rights case arising from the termination of plaintiff's employment and his simultaneous arrest and prosecution for theft from his employer. Defendants move for an Order, pursuant to Rule 21 of the Federal Rules of Civil Procedure, severing plaintiff's putative class action retaliation and employment discrimination claims from his federal and state claims for false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress and a Monell claim for municipal liability. With the exception of the Monell claim, plaintiff appears to have filed all of his claims against all of the defendants whether they are affiliated with his former employer — Macy's (the "Macy's Defendants")*fn1 — or the City of New York (the "City Defendants").*fn2 Plaintiff cross-moves to amend the putative class action complaint, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, to add an employment discrimination claim under 42 U.S.C. § 1981. For the reasons set forth below, both motions are denied.

  II. Facts

  A. Facts Underlying Plaintiff's Employment and Civil Rights Claims

  Plaintiff, a Hispanic male of Puerto Rican origin, worked for Macy's East, Incorporated's ("Macy's") Herald Square location for approximately ten years (Complaint ¶¶ 3, 12). Plaintiff worked for Macy's as a stock person in its Handling Department on the tenth floor (Complaint ¶ 13). Plaintiff's supervisors in the Handling Department were Scott Chester and Richard Harris, both Caucasian males (Complaint ¶¶ 5-6, 15). Plaintiff alleges that Chester and Harris harbored discriminatory animus towards plaintiff and other minorities and regularly made derogatory comments towards minorities including Hispanics (Complaint ¶¶ 21, 37).

  Beginning in 2001, plaintiff alleges that Chester and Harris passed him over for a promotion on two occasions despite his continued employment with Macy's over a ten-year period and his excellent performance record (Complaint ¶¶ 13-14, 17, 19). Plaintiff alleges that he was not promoted due to Chester and Harris's racial discrimination (Complaint ¶ 17). Plaintiff further alleges that Macy's instituted a new security policy called "Shortage Awareness," which was intended to encourage Macy's employees to report theft by co-workers by paying the reporting employee $500 for the apprehension of any alleged perpetrator (Complaint ¶¶ 28-29). Plaintiff alleges that the Macy's Defendants used Shortage Awareness to justify close monitoring of minority employees while Caucasian employees were not scrutinized at all (Complaint ¶ 32). Plaintiff further alleges that as a result of the Shortage Awareness policy, Macy's employees were encouraged by Macy's management to make false allegations against co-workers for monetary compensation (Complaint ¶ 33). According to plaintiff, the Macy's Defendants' comments and actions created a hostile work environment in which minority employees felt that Macy's management unfairly directed hostility and suspicion towards them (Complaint ¶¶ 20-35). Plaintiff and other minority employees complained to Macy's management about the unfair and discriminatory treatment that resulted from the policy but Macy's failed to take remedial action (Complaint ¶¶ 35, 38-39, 43). Plaintiff also complained directly to Chester about discriminatory treatment and filed grievances against him (Complaint ¶ 38). The frequency of plaintiff's complaints increased in 2001 when he became union shop steward (Complaint ¶¶ 40-42). Plaintiff alleges that, as a result of his complaints about discriminatory treatment, the Macy's Defendants retaliated against him by subjecting him to intense scrutiny and suspending him without pay in early 2002 (Complaint ¶ 44).

  The Macy's Defendants' retaliatory animus towards plaintiff allegedly culminated in his arrest for stealing merchandise on March 6, 2002 and his subsequent termination (Complaint ¶ 45). On March 6, 2002, plaintiff was in the employee locker room preparing to leave work for the day when five employees from Macy's internal security department approached him and a co-worker, Michael Green (Complaint ¶ 47). The security personnel took plaintiff to a security holding room, where they handcuffed plaintiff, frisked him and detained him for approximately three hours (Complaint ¶¶ 49-51, 56, 68-69). Defendant Chris De Santis, a Regional Investigator in Macy's Security Department, told plaintiff that he had recovered two stolen items from plaintiff's locker; plaintiff denied that he had stolen the items (Complaint ¶¶ 60-61; Supplemental Declaration in Support of Scott Chester's Motion to Sever, submitted by Diane Krebs, Esq. and sworn to December 6, 2004 ("Krebs Decl.") at ¶ 3). Plaintiff alleges that the Macy's Defendants knew that plaintiff had not stolen any items and that they made up false allegations to retaliate against plaintiff for his complaints about discriminatory treatment (Complaint ¶¶ 62-67).

  After being questioned by Macy's security personnel, New York City police officers arrived, arrested plaintiff and removed him from Macy's in handcuffs (Complaint ¶ 73). Plaintiff alleges that he requested legal representation after being arrested but that his request was denied (Complaint ¶ 74). The police questioned plaintiff for approximately six hours and then placed him in a holding cell for approximately eighteen hours before releasing him (Complaint ¶¶ 75-76). On or about March 7, 2002, the Macy's Defendants terminated plaintiff's employment (Complaint ¶ 77).

  Plaintiff was arraigned on an unspecified accusatory instrument on April 29, 2002 and charged with two counts of larceny (Complaint ¶ 79). On May 5, 2003 the case against plaintiff was dismissed for lack of evidence (Complaint ¶ 84). On June 27, 2003, plaintiff was arraigned for the second time on the same larceny charges, and on August 13, 2003, the charges were dismissed for a second time for lack of evidence (Complaint ¶¶ 85, 93). Plaintiff alleges that his arrest and prosecution were based on false, biased and/or misleading testimony by the Macy's Defendants, including Chester and De Santis (Complaint ¶¶ 94-99). Plaintiff further alleges that the Macy's Defendants acted maliciously and were motivated by discriminatory animus towards plaintiff based upon his race and national origin and in retaliation for plaintiff's previous complaints about discriminatory treatment (Complaint ¶ 100-101). Plaintiff also alleges that his employment was terminated in retaliation for his complaints about discriminatory treatment (Complaint ¶ 102).

  B. Procedural History

  Plaintiff filed a class action complaint in this matter on April 16, 2004, seeking to represent a putative class on his claims of employment discrimination and retaliation (the "employment claims"), under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the "NYSHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the "NYCHRL") (Docket Item 1). In the complaint, plaintiff also sought relief under Section 1983, Section 1985 and common law for claims of false arrest, false imprisonment, malicious prosecution, defamation, intentional infliction of emotional distress and a Monell claim (the "civil rights claims"). Plaintiff asserts no employment discrimination claims under Title VII.

  Both the Macy's Defendants and the City Defendants have answered the complaint (Docket Items 14, 19, 22). On September 2, 2004, the Macy's Defendants filed the instant motion to sever plaintiff's employment claims from his civil rights claims (Docket Item 20).*fn3 On December 21, 2004, plaintiff filed his opposition to the ...

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