United States District Court, E.D. New York
Decided: July 17, 2013.
For Atoya Alexander, Plaintiff: Linda Cronin, LEAD ATTORNEY, Susan P Bernstein, Cronin & Byczek LLP, New Hyde Park, NY; Dominick Peter Revellino, Rocco G. Avallone, Cronin & Byczek, LLP, Lake Success, NY; Ilya Mordukhaev, Cronin and Byczek LLP, New Hyde Park, NY; Shahin Mashhadian, Cronin & Byczek LLP, Lake Success, NY.
For The City of New York, The New York City Police Department, Lieutenant Gatto, in his individual and official capacity, Sergeant Leroy, in his individual and official capacity, Defendants: Daniel Sergio Gomez-Sanchez, LEAD ATTORNEY, NYC Law Department, New York, NY; Jane E. Andersen, LEAD ATTORNEY, New York City Law Department, New York, NY.
OPINION & ORDER
Nina Gershon, United States District Judge.
Plaintiff Atoya Alexander (" Alexander" ) brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 1981 and 1983, and the New York State and City Human Rights Laws, against Defendants the City of New York (the " City" ), the New York City Police Department (the " NYPD" ), Lieutenant Gatto and Sergeant Leroy. This Opinion addresses defendants' motion to dismiss the Complaint in its entirety, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted in part and denied in part.
ALLEGATIONS OF THE COMPLAINT
Plaintiff, an African-American woman, alleges that, during the time of her employment as a probationary officer with the NYPD, from January 7, 2008 through May 27, 2010, she was subjected to discrimination on the basis of her race and gender. This discrimination took the form of both a hostile working environment and disparate treatment. She also alleges that she was retaliated against for complaining about racist conduct.
Specifically, with respect to the alleged racist conduct, plaintiff alleges that, in October 2009, Sergeant Leroy, plaintiff's supervisor in the Conditions Squad of the 5th Precinct, " openly announced that he was going to make someone his 'slave for the day," and that plaintiff took this comment " personally since she was the only African American in the room." (Compl. ¶ 15.) Plaintiff alleges that she complained about this incident to Lieutenant Gatto, who neither reported it to the NYPD Office of Equal Opportunity, nor disciplined Sergeant Leroy. ( Id .) These are the only allegations of discriminatory treatment relating to plaintiff's race.
After she complained to Lieutenant Gatto, plaintiff alleges that Sergeant Leroy retaliated against her by " imposing upon [her] an illegal ticket quota and then informing her that he was still going to continue to retaliate," and then by " ordering her to take an unlicensed vendor arrest and when she informed him that she already had numerous for the month [he] threatened plaintiff with discipline." ( Id .) Moreover, " Sergeant Leroy then specifically informed plaintiff that this was his way of teaching her a lesson and she had failed." ( Id ) There is no timeframe associated with this alleged retaliatory activity, and there is no other activity which is alleged to have been in retaliation for plaintiff's complaint about Sergeant Leroy's comment.
With respect to the claim of a gender-based hostile working environment, plaintiff alleges that Lieutenant Gatto made inappropriate comments about her civilian clothing, sent her a picture of his house in Florida and invited her to visit him, and " monitored" her by sending text messages and calling her when she was not on duty. ( Id . ¶ 18.) Plaintiff also alleges that, while both she and Lieutenant Gatto were on duty on January 1, 2010, Lieutenant Gatto sent text messages and e-mails, in which he notified her as to his location and invited her to " join him and bring something to drink." ( Id .)
Plaintiff's claim of gender-based discrimination/disparate treatment arises from her allegations that she and the only other female probationary officer on the Conditions Squad of the 5th Precinct were regularly denied the opportunity to work certain, desirable, paid details, while the requests of similarly situated male officers to work these details were regularly granted. ( Id at 17.) Plaintiff does not allege the specific dates upon which these requests were made or denied. Plaintiff also alleges that on August 14, 2009, following a " minor off duty verbal incident with a neighbor," her probationary period was extended by six months as a disciplinary measure. ( Id . ¶ 19.) She alleges that she was then terminated on May 27, 2010, and that she " was not given a reason for her termination," but that she believes she was terminated in connection with the off-duty incident, while similarly situated male probationary officers were not terminated after engaging in far more offensive off-duty conduct. ( Id .)
Plaintiff makes no other allegations that would connect her termination with either the alleged racism (or her reporting of it), or with the alleged sexual harassment. Nor does she allege what, if any, role the individual defendants played in her termination or in the denial of her applications for paid details. Plaintiff asserts against the City claims of race and gender discrimination and retaliation, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . Plaintiff also asserts against all defendants identical claims pursuant to 42 U.S.C. § § 1981 and 1983, and the New York State and New York City Human Rights Laws (N.Y. Exec. Law § § 290 et seq. and N.Y.S. Admin. Code § 8-107(7), respectively).
Defendants move to dismiss the Title VII claims as time-barred under the 300-day statute of limitations effectively imposed by 42 U.S.C. § 2000e-5(e)(1), as well as because plaintiff failed to exhaust her administrative remedies, as required, and further, because they fail to state a claim upon which relief may be granted. Defendants also move to dismiss the § § 1981 and 1983 claims on the basis that plaintiff has failed to plausibly allege a claim. Finally, defendants request that the court decline to exercise supplemental jurisdiction over the City and State Human Rights Law claims, in the event that the federal claims are dismissed; defendants make no other arguments with regard to these claims. Plaintiff generally opposes the motion to dismiss, arguing that her Title VII claims are timely under the continuing violation doctrine, and that her constitutional claims do, in fact, state a claim. However, she has withdrawn her § 1983 claim against the City in accordance with Monell v. Department of Social Services of City of New York , 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). ( See Mem. in Opp., at 22-24.) She has also, as noted, withdrawn her due process claim and acknowledged that her
§ 1981 claim can proceed only against the individual defendants acting in their individual capacities, since the City and the individual defendants acting in their official capacities are state actors.
The only claims still subject to this motion, then, are those arising under Title VII and the City and State Human Rights Laws against the City, and those under § § 1981 and 1983, which are asserted against the individual defendants only.
I. Timeliness of the Title VII Claims
Title VII of the Civil Rights Act of 1964 (" Title VII" ) makes it unlawful for an employer " to discriminate against any individual with respect to ... privileges of employment, because of such individual's race, color, sex, or national origin," or to " deprive any individual of employment opportunities . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Title VII further prohibits discrimination against an employee " because he has opposed any practice made unlawful by this subchapter." 42 U.S.C. § 2000e-3(a). As set forth above, plaintiff contends, pursuant to Title VII, that defendants discriminated against her based on her race and gender by subjecting her to a hostile work environment and by treating her differently from other, similarly situated employees, and further, that defendants retaliated against her for complaining about racial discrimination.
In order to assert a Title VII discrimination or retaliation claim, a plaintiff in a state such as New York, " that has an entity with the authority to grant or seek relief with respect to the unlawful practice," must file a charge with the Equal Employment Opportunity Commission (the " EEOC" ) within 300 days " after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); accord National Railroad Passenger Corp. v. Morgan , 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). " Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Id . at 114. Where the claim is one of hostile working environment, however, it is, by nature, comprised of a " series of separate acts that collectively constitute one 'unlawful employment practice.' ... Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id . at 117 ( quoting 42 U.S.C. § 2000e-5(e)(1)).
Here, plaintiff filed an intake questionnaire with the EEOC on March 11, 2011, and an EEOC Charge of Discrimination on April 20, 2011. ( See Gomez-Sanchez Decl. Exhs. A, B.) Where the intake questionnaire contains a request for the agency to act, it may be considered a " charge" for the purpose of ...