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Cortes v. City of New York

March 31, 2010



Plaintiff Frankie Cortes, a former Corrections Officer with the New York City Department of Correction ("DOC"), brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 1981, 1983, and 1985 ("Section 1981", "Section 1983," and "Section 1985"), the First and Fourteenth Amendments to the United States Constitution, the New York State Human Rights Law, codified at N.Y. Exec. Law § 296 ("SHRL"), and the New York City Human Rights Law, codified at N.Y.C. Admin. Code § 8-101 et seq. ("CHRL"), alleging retaliation and discrimination on the basis of his gender and race. The Court has jurisdiction of the federal claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4) and supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. § 1367.

Defendants seek the dismissal of the Complaint in its entirety, pursuant to Federal Rule of Civil Procedure12(c). Defendants argue that Plaintiff's Section 1981, 1983, and 1985 claims and state law claims that accrued prior to May 22, 2005, should be dismissed as time-barred and that any claims under Title VII that accrued before January 13, 2007, are untimely as well. Defendants also assert that findings of the Office of Administrative Trials and Hearings ("OATH") Administrative Law Judge ("ALJ") preclude Plaintiff's constitutional and state law claims. Defendants further argue that Plaintiff's Title VII claims must be dismissed as against the individual Defendants, and that Plaintiff has failed to state a claim upon which relief may be granted as to any of his causes of action. The Court has considered thoroughly all of the parties' submissions. For the following reasons, Defendants' motion is granted in part and denied in part.


The underlying facts of this case as alleged in the Complaint are taken as true for purposes of Defendants' motion. On or about February 22, 2007, Plaintiff Frankie Cortes was terminated from his employment at the DOC, where he had worked since 1988. (Compl. ¶ 16.)

On May 7, 2002, Plaintiff was a witness to an incident involving Corrections Officers Frank Kumpan and Sadie Smith that prompted Officer Kumpan to file an Equal Employment Opportunity Complaint ("EEO Complaint"). (Id. ¶ 54.) Plaintiff served as the witness in support of that complaint. (Id. ¶ 54.)

On June 21, 2002, Corrections Officers Sadie Smith and Sheena Thompson assaulted Plaintiff at his assigned post at the Bronx Criminal Court. (Id. ¶ 55.) Following the assault, Plaintiff was immediately taken to the hospital. (Id. ¶ 56.) Sadie Smith was the EEO representative for the court officers at the time. Plaintiff asserts that the attack was triggered by his status as a witness to Officer Kumpan's EEO complaint. (Id. ¶¶ 54, 59.)

After leaving the hospital, Plaintiff was brought to the Vernon C. Bain Center, a detention facility, at the request of Neil Shulman, the Deputy Warden for Administration at the Bronx Detention Center. (Id. ¶ 56.) Plaintiff informed Deputy Schulman that he wanted Sadie Smith and Sheena Thompson arrested. (Id..) Deputy Schulman responded that Plaintiff would need to file a written request with the Warden, Richard J. Palmer, pursuant to Department of Corrections Rules and Regulations. (Id.) Plaintiff's subsequent written request was denied. (Id.)

On July 9, 2002, Plaintiff was notified that he would be transferred to the Riker's Island facility. (Id. ¶ 57.) On the same day, Plaintiff was required to write two reports, one concerning "whether he was wearing his vest" at the time of the assault and another addressing a charge that he was playing impermissibly loud music on April 9, 2002. (Id. ¶¶ 56, 57.) Around this time, Sadie Smith was allowed to retire, taking with her a "good guy letter," and Sheena Thompson was transferred to a coveted position at the Manhattan Criminal Courts building. (Id. ¶57.) Plaintiff thus asserts that his assailants were treated favorably while he was punished for protecting his rights as a victim of an assault.

On August 7, 2002, Plaintiff filed an EEO complaint with the DOC's EEO Office that "was not resolved to [his] satisfaction." (Id. ¶ 58.)

Plaintiff asserts that Deputy Schulman retaliated against him for his reaction to the assault and that Shulman, because of his "close relationship" with Sadie Smith, had a part in the decision to transfer Plaintiff to Riker's Island. (Id. ¶59.) Plaintiff contends that he was discriminated against based on his gender and punished for being the victim of an assault by two female officers. (Id. ¶ 59.)

After filing charges with the Equal Employment Opportunity Commission ("EEOC"), Plaintiff filed an action in the United States District Court for the Southern District of New York on July 16, 2004, asserting claims for retaliation and discrimination on the basis of sex. (Id. ¶ 19.) Plaintiff alleges that, during the time the action was pending, he was "put on the wheel," harassed, and written up on spurious disciplinary charges. (Id.) Plaintiff claims that, during the pendency of the litigation, he was also subjected to "new forms of retaliation and hostile work environment by his new supervisors at [t]he . . . Vernon C. Bain Center, in particular Deputy Warden Diane Carn" and that, on one occasion, Carn informed Plaintiff that she had knowledge of the ongoing litigation. (Id. ¶20.) In addition, Plaintiff learned from another corrections officer that Deputy Carn had uttered words to the effect of "'Officer Cortes, I've got something for his ass.'" (Id.) On account of these facts, Plaintiff came to believe that his treatment was the result of animus towards him for filing a complaint in federal court and hostility on account of his sex and Hispanic race. (Id.)

As the litigation progressed, Plaintiff was brought up on two separate rounds of disciplinary charges before OATH. (Id. ¶21.) In the first proceeding, the allegations were that, in order to avoid a drug test, Plaintiff made false statements in connection with his request for leave to attend the funeral of a man whom Plaintiff claims served as a father figure to him. (Id.) Plaintiff claims that, after he had requested bereavement leave, Carn circulated a memo in violation of procedure, stating that Plaintiff would not be entitled to "grievance [sic]" or any other leave. (Id.) Plaintiff proffers that other corrections officers not involved in litigation were routinely permitted to attend funerals without being subjected to these types of accusations and scrutiny, and that Carn's suspicion of his motives for seeking leave to attend the funeral was prompted by his race and gender (Plaintiff alleges that Carn did not so scrutinize such requests from female and/or African-American employees). (Id. ¶ 22.) On June 16, 2006, the ALJ recommended that Plaintiff be suspended for 60 days. (Id. ¶23.)

Plaintiff claims that the second set of administrative charges involved matters that had previously been addressed and considered by the ALJ in the first proceeding. (Id. ¶ 23.) Plaintiff further alleges that the charges involved incidents that Defendants had been aware of and elected not to raise in the previous proceeding, and that Defendants only chose to rekindle them out of dissatisfaction with the ALJ's 60-day suspension recommendation. (Id.) As a result of the second proceeding, on January 22, 2007, the ALJ recommended termination. (Id.) On February 22, 2007, Plaintiff was officially terminated. (Id. ¶ 25.)

On February 12, 2007, Plaintiff and Defendants stipulated to dismiss without prejudice Plaintiff's then-pending discrimination lawsuit in the Southern District of New York. (Id. Ex. B.)

On November 9, 2007, Plaintiff filed another charge with the EEOC and, on April 22, 2008, Plaintiff was notified of his right to sue. (Id. Ex. A.) On May 22, 2008, Plaintiff filed his complaint in the current action. Plaintiff's first, second, and third causes of action arise out of Defendants' conduct after July 16, 2004, and respectively rely on Title VII, alleged constitutional violations, and state law. Plaintiff's fourth, fifth, and sixth causes of action accrued prior to that date and rely on the same legal bases.


In considering a Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings, the court applies the same standards used for determination of a motion to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475-76 (2d Cir. 2009). Thus, the Court accepts as true the non-conclusory factual allegations in the complaint and draws all reasonable inferences in plaintiff's favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To survive such a motion, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A pleading that offers labels and conclusion or a formulaic recitation of elements of a cause of action will not do." Iqbal, 129 S.Ct. at 1949. This plausibility standard applies to all civil actions. Id. at 1953.

Title VII Claims

Claims Against Individual ...

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