The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Christopher Miller commenced the instant action asserting that he was discriminated against in connection with his employment on account of his race and gender and that he was retaliated against for engaging in protected activity. Miller asserts claims pursuant to Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. §§ 1981 and 1983; the New York State Human Rights Law ("HRL"); and the New York State Constitution. Presently before the Court are Defendants' motions pursuant to Fed. R. Civ. P. 12 seeking dismissal of the Amended Complaint.
The following facts are taken from Plaintiff's Amended Complaint and, for purposes of the instant motion, are deemed to be true.
Plaintiff is a male Caucasion who, at all times relevant hereto, was an employee of the City of Ithaca Police Department ("IPD"). Defendant Edward Vallely was the Chief of the IPD. Defendants John Barber and Pete Tyler were Deputy Chiefs of Police of the IPD. Defendant Gwen Wilkinson was the District Attorney for the County of Tompkins, New York.
Plaintiff began working for the IPD as a police officer in September 2000. Early on, then Deputy Chiefs David Barnes and Glen Sharshon told Plaintiff he was "junior" to two African-American officers because he was white. In or about July 2008, the City of Ithaca Human Resources Director stated that "[w]e want more black males." It is generally claimed that Tyler and others treat African-American and minority officers more favorably than white officers and scrutinize white officers more closely.
In September and December 2005, Plaintiff filed complaints with the Tompkins County Human Rights Commission and the New York State Division of Human Rights ("DHR") alleging race-based discrimination and reporting "acts of misconduct of IPD officers including that of Defendant Tyler." Am. Compl. at ¶ 25. Thereafter, Tyler started making disparaging statements about Plaintiff and his trustworthiness.
In January 2007, Plaintiff took the civil service examination to become a sergeant. Plaintiff was one of the top three candidates for promotion. Plaintiff was informed by then Chief of Police Lauren Signer that he would not be promoted. A lesser qualified African-American was promoted. Signer stated that the Mayor wanted her to promote African-Americans. Thereafter, the IPD promoted lesser qualified Hispanic officers who were not among the top three candidates. The IPD suspended its practice of interviewing candidates for promotions when African-Americans and other minorities were available for promotion. Plaintiff also claims that he was passed over for training opportunities in favor of African-Americans with fewer qualifications and less seniority.
In May 2008, Plaintiff was involved in an off-duty motor vehicle accident. Despite a New York State Police investigation finding no fault on Plaintiff's part, Barber insisted that Plaintiff be charged.
In or about July 2008, Plaintiff filed another complaint with the DHR alleging discrimination on account of his race and gender and retaliation "for his complaints of discrimination and reports of misconduct." Am. Compl. at ¶ 35. In May 2009, Plaintiff was confronted by an African-American Police Officer, Christine Barksdale. Barksdale "berated" Plaintiff over his complaints of discrimination and called him a liar, corrupt, filthy, and a pig.
On May 13, 2009, Plaintiff worked a DWI detail and completed a tracking sheet or log. Plaintiff contends that these logs were scrutinized to further efforts to discriminate and retaliate against Plaintiff.*fn1
On June 2009, Plaintiff was summoned to Vallely's office and administratively charged with violations of IPD Rules and Regulations and the New York State Penal Law with respect to his entries on the tracking sheet. Plaintiff was accused of being untruthful, falsifying business records and official misconduct. Barber threatened Plaintiff that if he did not waive arbitration and accept his punishment, he would be terminated and indicted. Plaintiff signed the waiver.
In July 2009, Plaintiff filed a third charge of discrimination with the DHR "alleging discrimination on the basis of race and gender and continued retaliation for his complaints of discrimination and reports of retaliation and misconduct." Am. Compl. at ¶ 43. A conference concerning Plaintiff's charges of discrimination was held in July 2009. Thereafter, Plaintiff's work assignments were changed and he was assigned to foot patrol almost exclusively.
In August 2009, Plaintiff took a leave of absence due to stress. Defendants ordered Plaintiff to surrender his weapon and badge and other department equipment. Plaintiff was not permitted to return to work without being cleared by a psychiatrist.
In September 2009, "Vallely solicited and Defendant Wilkinson agreed to provide a sham 'opinion' concerning Plaintiff's credibility." Id. at ¶ 46. In October 2009, Wilkinson announced that multiple felony charges resulting from an arrest Plaintiff executed in a weapons and drug case would be (or should be) dismissed because of Plaintiff's internal discipline for inaccurate paperwork. Defendants released Plaintiff's personal information in connection with an article concerning the dismissal of the weapons and drug case.
In December 2009, Plaintiff returned from his administrative leave. Plaintiff was assigned indefinitely to desk work. It is claimed that other officers were disciplined for paperwork inaccuracies and returned to their original assignments, whereas Plaintiff was kept on desk duty and monitored. Plaintiff complained to the Union and the Ithaca Human Resources Director. They refused to file a grievance or otherwise take action. While on desk duty, Plaintiff was told that he could not read or use his personal computer, whereas other officers on desk duty were permitted to read or use their personal computers.
In May 2010, Plaintiff was accused of posting derogatory comments on a blog. Tyler stated that Plaintiff knew his discrimination complaints were a lie.*fn2 Vallely told Plaintiff that "if you don't leave, I will find a way to get rid of you." Plaintiff reported this to the Union. The Union representative told Plaintiff "there was no 'violation of our contract' and no grievance or other action would be taken. . . ." Id. at ¶ 55.
Thereafter, in May 2010 Plaintiff commenced the instant litigation. In June 2010, Plaintiff was summoned to Vallely's office and served with a Notice of Discipline seeking his termination and administratively suspending him. Plaintiff was ordered to surrender his badge, firearm, and department equipment. Defendants retained a private investigator to investigate Plaintiff.
"Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99 (1957)). "While 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." Id. at 1964-65. "Factual allegations must be enough to raise a right to relief above the speculative level. . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. "'[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.'" Id. at 1965 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). A complaint does not suffice "if it tenders naked assertions devoid of further factual enhancement." Ashcroft, 129 S.Ct. at 1949. Legal conclusions must be supported by factual allegations. Iqbal, at 1950. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. "A claim has facial plausibility 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. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. 557) (internal quotations omitted).
With this standard in the mind, the Court will address the pending motions to dismiss.
a. Motion by Jeffrey Huddle and the Ithaca Police Benevolent Association
Defendant's Jeffrey Huddle and Ithaca Police Benevolent Association move to dismiss the claims against them. Plaintiff notes that, in his Amended Complaint, he has dropped all claims against these Defendants. Because these Defendants are no longer named in the Amended Complaint, their motion to dismiss is DENIED AS MOOT.
b. Motion to Dismiss by the City of Ithaca, Edward Vallely, John Barber, and Pete Tyler
1. Employment Discrimination Under Title VII and 42 U.S.C. §§ 1981 and 1983
To establish a claim of racial or gender discrimination under Title VII, 42 U.S.C. § 1981, or the New York State Human Rights Law, Plaintiff must show that: 1) he belonged to a protected class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); White v. Eastman Kodak Co., 368 Fed. Appx. 200, 202 n.1 (2d Cir. 2010); Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006); Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (§ 1983); Hudson v. Int'l Business Machines Corp., 620 F.2d 351, 354 (2d Cir. 1980) (§ 1981); Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir. 2006) (HRL).
"To state a claim for a hostile work environment . . . Plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive-that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [race, gender, or in retaliation for engaging in protected activity]." Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citations omitted). The Second Circuit recently explained that:
In order to establish a hostile work environment claim . . ., a plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered. A hostile working environment is shown when the incidents of harassment occur either in concert or with a regularity that can reasonably be termed pervasive. The plaintiff must show more than a few isolated incidents of racial enmity, although a hostile work environment can also be established through evidence of a single incident of harassment that is extraordinarily severe.
Fincher v. Depository Trust Clearing Corp., 604 F.3d 712, 723-24 (2d Cir. 2010) (internal citations, quotations and alterations omitted). Even if pervasive or severe, Plaintiff must demonstrate that the conduct occurred because of his race, gender, or in retaliation for engaging in protected activity. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).
a. Gender-Based Discrimination
Defendants moves to dismiss all gender-based discrimination claims on the ground that the Amended Complaint fails to allege sufficient facts to plausibly state such a claim. While the Amended Complaint makes numerous passing references to, and conclusory allegations concerning, discrimination on account of gender, it sets forth an insufficient factual basis to plausibly assert a claim of gender-based discrimination. The Amended Complaint does not identify instances where Defendant was treated less favorably than female employees. The Amended Complaint similarly does not set forth any gender-based conduct, stereotyping, or statements by Defendants that could plausibly give rise to an inference that any actions taken against Plaintiff (including any hostile work environment) were on account of Plaintiff's gender. See generally Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004). When the Amended Complaint refers to Plaintiff's gender, it usually does so when comparing a "White male officer" to "African-American and minority officers." See e.g., Am. Compl. at ¶¶ 24, 61, 62, 64, 74. Considering the totality of the Amended Complaint, these allegations pertain to Defendant's race-based claims; not his gender-based claims. There are insufficient facts alleged in the Amended Complaint supporting the gender-based discrimination claim. Accordingly, the gender-based discrimination claims are DISMISSED.
b. Race Based Discrimination/Hostile Work Environment
Defendants move to dismiss the race-based discrimination claims, including the claim of a hostile work environment. In his Amended Complaint, Plaintiff asserts the following incidents of arguably disparate treatment: (1) not being selected for the sergeant position in 2007 in favor of a lesser qualified African-America; (2) two lesser qualified Hispanics being promoted over him; (3) being passed over for training opportunities in favor of lesser qualified African-Americans; (4) being charged in connection with an off duty motor vehicle accident; (5) being administratively charged with violations of IPD Rules and Regulations and the New York State Penal law concerning his entries on tracking sheets; (6) having to surrender his badge, firearm and other equipment upon taking an administrative leave of absence; (7) being placed on desk duty upon his return from the leave of absence;
(8) being assigned to foot patrol; and (9) being served a Notice of Discipline administratively suspending him and seeking his termination in June 2010.*fn3
The Amended Complaint also recites general claims that Defendants "repeatedly treat African-American and minority officers more favorably than White male officers in matters of discipline and evaluating performance," Am. Compl. at 24, that Defendants tolerate racist and derogatory comments about White male officers, but investigate and discipline While male officers who use such language, and that Defendants "more closely scrutinize the White officers. . . ." Id. It is further alleged that, after Plaintiff complained of discrimination and misconduct of IPD officers, Tyler "began making disparaging statements about Plaintiff and his trustworthiness." Id. at 26. Other factual assertions include Plaintiff being confronted by an African-American IPD officer in May 2009 concerning his complaints of discrimination, Plaintiff's tracking logs being "scrutinized," a statement in September 2009 concerning Plaintiff's credibility, the release of personal ...