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Mercado v. City of New York

United States District Court, S.D. New York

February 14, 2014



PAUL A. CROTTY, District Judge.

Plaintiffs Victor M. Mercado ("Mercado") and Sergio A. Lovera ("Lovera") (collectively, "Plaintiffs"), who are of Hispanic origin, claim that Defendants City of New York and the New York City Police Department ("NYPD") (collectively, "Defendants") denied promotions to them based on their race, color, and national origin in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983, and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e ("Title VII"). Defendants move to dismiss the action for failure to state a cause of action and for being untimely. The Court GRANTS Defendants' motion to dismiss.


Mercado and Lovera are veteran detectives in the 52 Precinct Detective Squad (the "Squad") of the NYPD; Mercado has 19 years experience and Lovera 22 years. (Amended Complaint ("Compl.") ¶¶ 4-5.) On or about 2001, Mercado was assigned to the Squad's facility on Webster Avenue the Bronx as a detective investigator. ( Id. ¶ 8.) He was promoted to 3rd grade detective in 2003. ( Id. ¶ 10.) On or about 2006, Lovera was assigned to the same facility as a 3rd grade detective. ( Id. ¶ 21.) Both detectives handle high profile cases and had good arrest records, conviction rates, and case clearance. ( Id. ¶¶ 9, 22.)

Despite their performances, both men were repeatedly denied promotions to 2nd grade detectives. Mercado has been denied promotion "since November 2008, but more particularly between January 17, 2010 and December 2011, " ( id. ¶ 11), and Lovera "since January 17, 2013, more particularly on December 22, 2011, ( id. ¶ 23). The NYPD gave different excuses each time, such as Plaintiffs' general seniority, time in rank, merit, or case clearance record. ( Id. ¶¶ 12, 26.) Other less qualified detectives who were not of Hispanic origin were promoted instead. ( Id. ¶¶ 13-14, 27-28.) As a result, Plaintiffs lost back wages, including fringe benefits. ( Id. ¶¶ 19, 32.)

On January 17, 2013, Plaintiffs filed their complaint against Defendants. On May 15, 2013, the Court granted Plaintiffs leave to file an amended complaint. Plaintiffs filed their amended complaint on June 28, 2013 and asserted three claims for discrimination and one, with respect to Mercado, for retaliation. ( Id. ¶¶ 34-37.) Defendants move to dismiss the amended complaint for failure to state a claim and as partially time-barred. ( See Defendant's Memorandum of Law in Support Motion to Dismiss at 1-2.)


I. Plaintiffs' § 1981 Claims Are Duplicative of Their § 1983 Claims

As an initial matter, Plaintiffs' § 1981 claims are dismissed. "[T]he express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units...." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989). Therefore, "[Plaintiffs'] § 1981 claims are encompassed by [their] § 1983 claims, and both are therefore analyzed under § 1983." Gladwin v. Pozzi, 403 F.Appx. 603, 605 (2d Cir. 2010) (summary order).

II. Plaintiffs Fail To State a Claim

Federal Rule of Civil Procedure 12(b)(6) requires Plaintiff to "provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face.'" Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as true all well-pleaded factual allegations and draws all inferences in Plaintiff's favor. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). In evaluating a motion to dismiss, the Court "may consider any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference... and documents possessed by or known to the plaintiff and upon which [he] relied in bringing the suit." ATSI, 493 F.3d at 98.[1]

A. Discrimination Claims

In each discrimination claim, Plaintiffs allege that they were qualified, but were repeatedly denied promotions while four less qualified non-Hispanic detectives received promotions.[2] To state a prima facie case of discrimination, plaintiffs must allege that (1) they belonged to a protected class; (2) they are qualified for the position held; (3) they suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (Title VII); Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010) (§ 1983). Defendants argue that Plaintiffs have not alleged sufficient facts to demonstrate that they were denied promotions under circumstances giving rise to an inference of discriminatory intent. The Court agrees.

Plaintiffs offer no facts from which the Court can reasonably infer that the four detectives were promoted over Plaintiffs due to their race, national origin, or age. To support an inference of discrimination, a plaintiff must plausibly allege the existence of others who were more favorably treated despite being "similarly situated to the plaintiff in all material respects.'" See Ruiz, 609 F.3d at 493-94 (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)). Whether individuals are "similarly situated" depends on whether they are "subject to the same performance evaluation and discipline standards and... engaged in comparable conduct." Id. (internal quotations omitted). Here, Plaintiffs identify four "less qualified" individuals who were promoted and are not of Hispanic origin. ( See Compl. ¶¶ 13-14, 27-28.) But the complaint lacks any facts suggesting that these detectives were similarly situated to Plaintiffs. Furthermore, the allegations that the other detectives were "less qualified" or were promoted due to their race are conclusory and unsupported by ...

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