The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
Henry Jackson ("Jackson"), proceeding pro se, commenced this action for damages and injunctive relief on November 1, 2011, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e--2000e-17 ("Title VII") and the New York City Administrative Code, §§ 8-101--8-131, against the New York State Office of Mental Health ("OMH"). He alleged, inter alia, that OMH: (1) failed to promote him; (2) imposed unequal terms and conditions of employment on him; and (3) retaliated against him for filing a Freedom of Information Law ("FOIL") request. Before the Court is OMH's motion to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Jackson opposes the motion.
The following are allegations in the complaint:
On or about January 25, 2008, Jackson responded to an advertisement in the New York Times posted by OMH "soliciting applications for the position of Treatment Team Leader -- Program Director with The Bronx Children's Psychiatric Center." He submitted an application and was selected for two rounds of interviews. On March 7, 2008, Kevin Kurtz ("Kurtz"), director of administration, "extended a written offer to [Jackson] for the position of Treatment Team Leader ("TTL") . . . effective April 7, 2008," which Jackson accepted. In reliance upon the offer, on April 4, 2008, Jackson resigned from his Administrative Supervisor position with the Jewish Child Care Association.
On April 8, 2008, the day after he assumed his new position at the Bronx Children's Psychiatric Center ("BCPC"), Jackson was informed by Kurtz that OMH had mistakenly hired him as the TTL, explaining that the TTL position was designated for internal promotion within OMH, so Jackson, as an external hire, was not eligible. However, "[t]here was nothing in the ad which suggested that this was an internal OMH promotion position." In addition, because "there was no in-house staff qualified for the position," Jackson could have been hired as TTL, "as allowed by Civil Service rule 4.2b." Instead, Kurtz notified Jackson that he would be hired as a Licensed Master Social Worker 2 ("LMSW 2"), at a lower salary, that "would be supplemented by adding 10 hours of over time [sic]," so that Jackson's total compensation as a LMSW 2 would be commensurate with his salary expectations for the TTL position for which he was originally hired. Kurtz and Christopher Meyers ("Meyers"), BCPC's acting executive director, "routinely approved" Jackson's overtime authorization roster from the beginning of his employment at BCPC, on April 7, 2008, until his promotion to Social Work Supervisor 1 ("SWS 1"), on July 3, 2009.
Initially, Jackson's employment as a LMSW 2 was provisional, but on June 11, 2008, Kurtz changed Jackson's status from provisional to contingent-permanent, provided that he completed a one-year probationary period successfully. During this probationary period, Jackson received "Satisfactory" or "Outstanding" ratings from Kurtz and Meyers, and "[n]o evaluation during this period said anything negative about [Jackson's] time and attendance." In an e-mail message dated July 8, 2008, Karen Davis ("Davis"), associate personnel administrator, noted that, after three months of permanent service as a LMSW 2, Jackson would "be eligible for a provisional appointment to TTL." According to the timeline described in Davis's e-mail message, Jackson became eligible for provisional promotion to the TTL position, on or about September 9, 2009.
On June 10, 2009, Carol Taft, director of human resource management, notified Jackson that he had completed his one-year probationary period in the title LMSW 2, and on June 11, 2009, Jackson became eligible for the SWS 1 position. Jackson was promoted provisionally to that position, instead of to the TTL position as he had expected, in July 2009. However, as a result of the promotion to SWS 1, Jackson "suffered a diminution in pay because OMH cut his ability to earn any overtime pay." Kurtz confirmed to Jackson that in his new position he "would not be eligible for overtime since this was a managerial position with a different union from his previous title of LMSW 2."
On July 20, 2009, Kurtz informed Jackson that he would be reassigned to a different position, "due to a complaint filed to the Governor's office in Albany by Jeff Greenlinger" ("Greenlinger"). According to Kurtz, Greenlinger had complained that Jackson "was not working the [overtime] hours he submitted." On July 27, 2009, Meyers re-assigned Jackson to the BCPC director of community relations position.
As a result of Greenlinger's allegation, Jackson met with Leona Moore, the associate personnel administrator, who tendered a letter, informing him that he was scheduled to meet with Tony Dorangrichia ("Dorangrichia"), on April 27, 2009, as part of an investigation into Jackson's overtime records. The letter stated further that the meeting was part of an "Official Interrogation" that could subject Jackson to disciplinary action in the future.
Jackson met with Dorangrichia, without having a union representative or private counsel accompany him. Dorangrichia accused Jackson of arriving late to work, in the morning, and leaving early in the afternoon, frequently; however, Jackson explained that, "due to the hectic work place environment involving children with special needs, he often took work home after hours to complete." After Dorangrichia concluded his investigation, Kurtz informed Jackson, on September 21, 2009, that OMH had dismissed Greenlinger's overtime complaint. However, during the course of the investigation, OMH determined that, from June 2 to July 24, 2009, Jackson was arriving to work late and leaving early, based on records produced by the access card Jackson used to enter his worksite. Accordingly, one or two months later, Kristen Riley ("Riley"), acting OMH deputy commissioner for the Division of Children and Family Services, demoted Jackson from SWS 1 to his former position, LMSW 2, for "time and attendance issue[s]."
Moving Jackson between positions and demoting him, Jackson believes, "[appear] to have been part of an underlying scheme to not have him in the TTL position or any other administrative position." Jackson contends that everyone involved in keeping him out of an administrative position -- Riley, Kurtz, and Meyers -- is Caucasian, while Jackson is African- American.
On or about September 30, 2010, Jackson filed a FOIL request with OMH and obtained an excised copy of Dorangrichia's report of his findings regarding allegations respecting Jackson's overtime, and time and attendance records. Thereafter, OMH pursued "a new agenda to undermine [Jackson's] work, time and attendance, and relationships with staff."
On or about April 21, 2011, Jackson's immediate supervisor, Maria Portalatin ("Portalatin"), informed him that her supervisor, Denise Francois ("Francois"), director of inpatient services, had questioned her judgment for determining to give Jackson a positive performance evaluation. On April 29, 2011, Francois gave Jackson his performance evaluation, after altering portions of Portalatin's assessment to "make it appear that [Jackson] was not a team player and that he lacked certain skills." More specifically, Francois revised Jackson's performance evaluation, so that he received a "U" rating, indicating the performance standard was "Unmet" under the category "Complies with staffing scheduling guidelines and procedures: unscheduled absences do not exceed facility guidelines" and a "T" rating, indicating "Training need identified" under the category "Maintains positive working relationships and fosters a cooperative work environment." Jackson asserts that Francois downgraded Jackson's evaluation in retaliation for his September 30, 2010 FOIL request and "to give the new supervisor, Jill Emmanuelle[,] a paper trail to follow to set [him] up for a subsequent downgraded retaliation."
On July 27, 2011, Jackson filed a claim with the Equal Employment and Opportunity Commission ("EEOC"). On October 5, 2011, he received a "Dismissal and Notice of Rights" letter. Twenty-six days later, on November 1, 2011, Jackson commenced this action.
OMH contends that certain of Jackson's Title VII claims are time-barred because he failed to file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory conduct, as required by the statute. According to OMH, the only timely-filed claim, regarding a discriminatory act -- a negative performance evaluation -- does not demonstrate that an adverse employment action, within the meaning of Title VII's anti-discrimination clause, occurred because Jackson "fails to allege any negative repercussions attached to the evaluation." OMH also contends that Jackson failed to allege a Title VII retaliation claim because he did not assert that he engaged in a protected activity or that OMH was aware of his participation in any such activity, and no causal connection exists between his filing the FOIL request and the alleged downgrade in his performance evaluation. Additionally, OMH contends that Jackson's New York City Administrative Code claims are barred because OMH is a state agency that enjoys the protection of sovereign immunity provided by the Eleventh Amendment.
Jackson's opposition to OMH's motion recites many of the facts alleged in his complaint. In addition, despite asserting in the complaint that he received a negative performance evaluation in retaliation for his submitting a FOIL request, Jackson now argues that he "was given an unfavorable evaluation, due to filing a discrimination suit with the EEOC against the defendant." Jackson also contends, for the first time, that OMH violated his constitutional rights under the Due Process Clause of the Fourteenth Amendment because "no representation [was] made available to [him] prior to entering the meeting with Mr. Dorangrichia" in connection with the investigation into Jackson's overtime, and time and attendance records. He also asserts, for the first time, that he has "been a victim of unfair labor practices" perpetrated by OMH, and that OMH engaged in "misrepresentation of employment." Though Jackson does not address OMH's arguments in his opposition to the motion, he does contend that Meyers told him that "OMH had one year to bring additional charges [against Jackson] for disciplinary actions," and that ...