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Pedrosa v. City of New York

United States District Court, Second Circuit

January 9, 2014

THE CITY OF NEW YORK, et al., Defendants.


LORNA G. SCHOFIELD, District Judge.

Before the Court is Defendants' Motion for Partial Dismissal of the Complaint. On February 25, 2013, Plaintiff Lisette Pedrosa filed suit in New York State Supreme Court alleging various forms of employment discrimination against the City of New York and five of its employees who worked in the 25th Precinct of the Police Department of the City of New York ("NYPD"). On March 18, 2013, Defendants removed that action to this Court. For the reasons stated below, Defendants' motion to dismiss is granted in part and denied in part.


The following facts are taken from Plaintiff's Complaint and exhibits.

I. Defendants' Alleged Misconduct Against Plaintiff

Officer Pedrosa is employed by the NYPD, and is of Puerto Rican descent. In January 2010, she accepted an offer by Defendant Salvatore Marchese, the newly assigned Special Operations Lieutenant, to work directly for him in a position with steady hours and days off. Shortly thereafter, Lieutenant Marchese began making unsolicited advances toward Officer Pedrosa, including texting her sexually explicit photos, asking her about her sexual activities, pressuring her to meet outside of work and on two occasions demanding and receiving oral sex. In late March 2010, after Officer Pedrosa asked Lieutenant Marchese to leave her alone, Lieutenant Marchese became increasingly hostile toward her, burdening her workload with constantly shifting assignments and closely monitoring her every move at work.

In early May 2010, after Lieutenant Marchese "smacked' [Officer Pedrosa's] buttocks" at work, she complained to Defendant Garfield Edmonds about Lieutenant Marchese's behavior. Lieutenant Edmonds failed to notify the NYPD's Office of Equal Employment Opportunity ("OEEO"), as required by department policy, or Inspector Edward Caban. Sometime thereafter, in a meeting with Lieutenant Edmonds and Inspector Caban, Lieutenant Marchese expressed his desire to transfer Officer Pedrosa out of his unit because she "was not doing shit.'" Inspector Caban transferred her out of the unit on or about May 10, 2010. Since the transfer and through January 2013, Officer Pedrosa has consistently received poor assignments and unfair discipline, and been precluded from working overtime. On or about May 17, 2010, Officer Pedrosa reported the misconduct of Lieutenant Marchese and Lieutenant Edmonds to the NYPD's Internal Affairs Bureau ("IAB"), which in turn contacted the OEEO.

On or about December 2, 2010, Officer Pedrosa found the lock on her work locker gone and her police equipment missing. She reported the incident to Defendant Integrity Control Officer Kevin Coleman, who failed to notify the IAB as required by department policy and then fabricated a report to cover up his failure. In February and then again in May 2011, to cover up the theft of Officer Pedrosa's property under her command and Sergeant Coleman's failure to notify, Defendant Nilda Hoffman, Deputy Inspector and Commanding Officer of the 25th Precinct, knowingly caused false reports to be written alleging that Officer Pedrosa had left her equipment unsecured.

Frustrated by the NYPD's failure to take her complaints of sexual harassment seriously, Officer Pedrosa gave an interview to the New York Daily News. On June 2, 2011, the Daily News published an article reporting her allegations against Lieutenant Marchese.

In July 2011, the OEEO determined that Officer Pedrosa's allegations of sexual harassment against Lieutenant Marchese were substantiated. He was issued a Supervisor's Complaint Report for a Schedule B' Violation, transferred from the 25th Precinct and ordered to attend a professionalism seminar, which the Complaint characterizes as "a slap on the wrist." The OEEO found that Officer Pedrosa's allegations of retaliation were unsubstantiated.

In December 2011, Officer Pedrosa lodged complaints with the OEEO about retaliation, unfair discipline and Deputy Inspector Hoffman's falsification of records. The OEEO failed to notify the IAB about Officer Pedrosa's complaint against Deputy Inspector Hoffman as required by department policy.

In January 2012, Officer Pedrosa responded to a citizen's complaint, which she classified as Burglary Second Degree and Grand Larceny Fourth Degree, both index crimes. Defendant Jessica McRorie asked her to reclassify the complaint as Petit Larceny, a non-index crime, and when Officer Pedrosa refused, Sergeant McRorie changed the classification without Officer Pedrosa's authorization. Officer Pedrosa reported Sergeant McRorie's behavior to the IAB, which referred the allegations to the NYPD's Quality Assurance Division ("QAD"). In April 2012, the QAD interviewed Officer Pedrosa about Sergeant McRorie.

In May 2012, the OEEO determined that Officer Pedrosa's retaliation claims "did not rise to the level of employment discrimination."

In January 2013, Officer Pedrosa reported her W2 stolen at work. The theft was never reported to the IAB.

II. NYPD's Alleged Policy Condoning Misconduct

According to the allegations in the Complaint, the NYPD is aware of its persistent problem of white male employees committing quid pro quo sexual harassment and otherwise highly offensive sexual conduct, but has typically responded by refusing to acknowledge their misconduct, imposing disproportionately light penalties and discrediting the accusers. The Complaint alleges that the NYPD usually responds to complaints of discrimination by filing false allegations of misconduct against, and unfairly disciplining, the complainants. The NYPD is particularly aggressive against those who speak to the media about their allegations.

In 2008, Former Transit Bureau Captain Jeffrey Kilmas, a white male, pleaded guilty to public lewdness and disorderly conduct after exposing himself in a Queens train station while on duty. He was penalized 11 vacation days (i.e., suspended without pay for 11 days), but was allowed to keep his full pension. Captain Kilmas was previously accused of fondling a teenager on a subway train, but the NYPD closed that case as "unfounded."

In 2010, the City paid $300, 000 to two male sergeants after Former Lieutenant Kieran Crowe, a white male, was found guilty in an NYPD disciplinary trial of sexually harassing them and creating a lewd and hostile work environment. Lieutenant Crowe ultimately was forced to retire but allowed to keep his pension, and was penalized 60 vacation days. The two complainants against Lieutenant Crowe were labeled homophobic, and had allegations of misconduct filed against them when they spoke to the New York Daily News.

In 2007, Former Captain Michael DeBellis, a white male, admitted to exposing himself to a female subordinate at work. He was forced to retire but allowed to keep his pension, and was penalized 60 vacation days. After the complainant went public with her case in the New York Daily News, allegations of misconduct were filed against her. The complainant was subsequently penalized eight vacation days for parking her car in a bus stop.

III. Plaintiff's Claims

Based on the foregoing allegations, Officer Pedrosa asserted 25 claims against Defendants. In her Opposition to the Motion to Dismiss, Plaintiff voluntarily withdrew 13 claims. The claims that remain are as follows: (i) retaliation under the First Amendment, § 1983 and New York state and city laws, as to all Defendants (Counts IV, XIII, XIX and XXIV); (ii) failure to train and supervise under § 1983, as to Defendant City (Counts VIII and IX); (iii) sexual harassment under § 1983 and New York state and city laws, as to all Defendants (Counts X, XVI and XXI); and (iv) hostile work environment under § 1983 and New York state and city laws, as to all Defendants (Counts XIV, XX and XXV).


Defendants seek to dismiss the following: (i) all claims against all individual Defendants other than Lieutenant Marchese; (ii) the failure to train and supervise claims under § 1983 against the City (Counts VIII and IX); and (iii) the First Amendment retaliation claim against all Defendants (Count IV).

I. Standard of Review

On a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). To withstand dismissal, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. While "detailed factual allegations'" are not necessary, the pleading must be supported by more than mere "labels and conclusions' or a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 557). Rule 8 of the Federal Rules of Civil Procedure "requires factual allegations that are sufficient to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (alteration in original) (quoting Twombly, 550 U.S. at ...

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