United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
BRIAN M. COGAN, District Judge.
This case is before me on defendants'  partial motion to dismiss the amended complaint. For the reasons stated below, the motion to dismiss is granted in part and denied in part. First, I find that the amended complaint states a sufficient Title VII discrimination claim; however, the § 1981, § 1983, New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL") discrimination claims against Kevin McBride, Frank Milazzo, and Vassilios Zoumboulias (together with Gregory Hoag, the "Individual Defendants") are dismissed. Second, while plaintiff has pled a hostile work environment claim under Title VII, plaintiff's § 1981, § 1983, NYSHRL, and NYCHRL hostile work environment claims against McBride, Milazzo, and Zoumboulias are dismissed. Third, plaintiff has sufficiently pled retaliation claims; however, to the extent plaintiff relies on the Fourteenth Amendment for his § 1983 retaliation claim, his § 1983 retaliation claim is dismissed. Fourth, the City of New York ("City") is dismissed from this action because there is no basis to impose municipal liability. Fifth, plaintiff concedes that DEP is not a suable entity and so it is removed as a defendant in this action. Finally, at the initial status conference, plaintiff conceded that he is not allowed to recover for alleged discriminatory actions that are time-barred.
Plaintiff is an African American of Egyptian national origin. He began working as an Associate Engineering Technician Level II for the Department of Environmental Protection ("DEP") in 1988. From 1988 to 2009, plaintiff was promoted several times. By November 2009, he was appointed the Deputy Director of HAZMAT.
Plaintiff alleges that he began experiencing a hostile work environment once he started working with defendant Hoag in March 2009. Hoag repeatedly made discriminatory remarks to plaintiff regarding plaintiff's national origin and race. According to plaintiff, Hoag harbored a discriminatory animus towards DEP employees of Middle Eastern descent, which influenced the ways in which he treated plaintiff. Hoag prohibited plaintiff from speaking to certain DEP employees, limited plaintiff's involvement in certain projects, stripped plaintiff's oversight over certain units, and excluded plaintiff from meetings. In addition to the discrimination plaintiff alleges he suffered by Hoag, plaintiff further alleges that he experienced disparate treatment at DEP in that he was not allowed to report insubordinate staff members and was paid the same total salary as a Caucasian employee, even though he had more experience and seniority.
In 2011, after defendant Milazzo sent a memorandum to the Deputy Commissioner of Human Resources requesting plaintiff's demotion, plaintiff was demoted in both title and salary. Shortly thereafter, he was transferred to a position in Security Systems Engineering, a unit in the Bureau of Police & Security at DEP. There, plaintiff alleges that he was excluded from meetings and certain DEP work locations. His work-product was routinely criticized by defendants, particularly defendant Zoumboulias. Zoumboulias also denied plaintiff security clearances and would not provide him with internet and long-distance telephone access. Additionally, plaintiff alleges that defendants McBride and Hoag retaliated against him for speaking out about public matters. Finally, plaintiff, an active participant in Local 375, alleges that defendants retaliated against him for participating in union activities.
I. Plaintiff's Discrimination Claims
a. Pleading Standard for a Title VII Discrimination Claim
In reviewing the sufficiency of plaintiff's amended complaint, this court "must accept as true all of the factual allegations contained in the complaint." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1. Additionally, courts can disregard those pleadings that are "no more than conclusions" and determine whether the remaining factual allegations "plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. 662, 663-64, 679 (2009). Plausibility requires "more than a sheer possibility that a defendant has acted unlawfully." Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
At the pleading stage, plaintiff is not required to plead facts showing a prima facie case of discrimination. Swierkiewicz, 534 U.S. at 511; see also Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 223-24 (S.D.N.Y. 2010) ("In the context of a discrimination claim, the Iqbal plausibility standard applies in conjunction with employment discrimination pleading standards.") (internal quotation marks omitted). However, the elements of a prima facie case "provide an outline of what is necessary to render [a plaintiff's employment discrimination] claims for relief plausible." Humphries v. City Univ. of New York, No. 13 Civ. 2641, 2013 WL 6196561, at *6 (S.D.N.Y. Nov. 26, 2013) (citations and quotations omitted). A prima facie case of employment discrimination requires proof of (1) plaintiff's membership in a protected class; (2) that plaintiff was qualified for the position at issue; (3) that he was subjected to a materially adverse employment action; and (4) that the circumstances give rise to an inference of unlawful discrimination. Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012).
b. Plaintiff's Title VII Discrimination Claim
For plaintiff to properly allege a Title VII discrimination claim against the City, he must present facts indicating that the discriminatory conduct taken against him at DEP rose to the level of "an adverse employment action." See Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). An adverse employment action "must be more disruptive than a mere inconvenience or an alteration of job responsibilities.... [It] might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices... unique to a particular situation." See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks and citation omitted).
Plaintiff alleges that while he was at DEP, each of the Individual Defendants harmed him in some way. The bulk of plaintiff's amended complaint focuses on the actions taken by Hoag, who allegedly made plaintiff's life at DEP difficult; in plaintiff's words, "Hoag [was] committed to diminishing plaintiff's authority and began a campaign to eliminate plaintiff from the Deputy Director position." Hoag restricted plaintiff's access to the HAZMAT locations under plaintiff's purview, restricted the persons at DEP who plaintiff could talk to, removed divisions from plaintiff's supervision, and revoked plaintiff's security clearance. Additionally, Hoag delegated plaintiff's oversight of his unit's operations and delegated them to plaintiff's secretary, Joanne Nurse. As plaintiff states, Hoag made "plaintiff a manager in title only."
Plaintiff alleges similar mistreatment by Zoumboulias. Zoumboulias allegedly excluded plaintiff from meetings and refused to provide plaintiff with the security clearances needed to access certain DEP sites. Zoumboulias also prohibited plaintiff from having internet and longdistance telephone access; plaintiff was the only person in his unit without these amenities. Plaintiff allegedly notified Zoumboulias that he needed internet access to perform his job functions, but to date Zoumboulias has not addressed plaintiff's concerns. Further, Zoumboulias refused to provide plaintiff with any mechanical engineering assignments and instead assigned him "out of title, " "menial" tasks which were not commensurate with his expertise and skills. Zoumboulias denied plaintiff overtime and compensatory time; here, too, plaintiff was the only person in his unit without access to overtime or compensatory time. Finally, Zoumboulias repeatedly yelled at plaintiff, and on at least one occasion screamed that plaintiff "was not fit to perform any engineering tasks."
Both Hoag's and Zoumboulias' stripping of plaintiff's responsibilities, while perhaps not as extreme as termination or a decrease in salary or benefits, are each enough to support an inference that plaintiff suffered a material adverse action. See Patane, 508 F.3d at 116 (finding that plaintiff's allegation that she was stripped of virtually all of her secretarial functions qualified as an adverse employment action); see also Lore, 670 F.3d at 170; Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008); Patrolmen's Benevolent Ass'n v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002). Plaintiff alleges a plausible adverse employment action when he states that Zoumboulias not just altered his job responsibilities, but significantly diminished them by assigning plaintiff only "menial" tasks which were completely outside of his title. See Rodriguez v. Bd. of Ed. Of Eastchester Union Free Sch. Dist., 620 F.2d 362, 366 (2d Cir. 1980) (finding that where a junior high school teacher was forced to teach at the elementary level thereby rendering "utterly useless her twenty years of experience and study in developing art programs, " there was a "radical change in the nature of the work [the plaintiff] was called upon to perform[, which] constitutes interference with a condition or privilege of employment adversely affecting her status within the meaning of [Title VII]"); see also Wright v. N.Y.C. Off-Track Betting Corp., No. 05 CV 9790, 2008 WL 762196, at *4 (S.D.N.Y. Mar. 24, 2008). In addition, plaintiff plausibly suffered an adverse employment action when Zoumboulias took away plaintiff's internet access, which made it difficult for plaintiff to do his job. See De La Peña v. Metropolitan Life Ins. Co., 953 F.Supp.2d 393, 411-12 (E.D.N.Y. 2013) (finding that plaintiff's allegations that he was deprived of computer access "could easily fall into the category of adverse employment action'"); Lorenzo v. St. Luke's-Roosevelt Hosp. Ctr., 837 F.Supp.2d 53, 62 (E.D.N.Y. 2011). Finally, plaintiff has also plausibly shown that he suffered an adverse employment action when Zoumboulias denied him overtime and compensatory time. See Mazyck v. Metro. Transp. Auth., 893 F.Supp.2d 574, 589 (S.D.N.Y. 2012) ("denial of overtime can constitute an adverse employment action"); Little v. Nat'l Broad. Co., Inc., 210 F.Supp.2d 330, 379 (S.D.N.Y. 2002).
The second inquiry I must conduct to determine whether plaintiff has sufficiently pled a Title VII discrimination claim is examining whether the adverse employment actions suffered by plaintiff were caused by a discriminatory intent. See Swierkiewicz, 534 U.S. at 514; Brodt v. City of New York, No. 13 Civ. 3272, 2014 WL 896740, at *4 (S.D.N.Y. Mar. 6, 2014). Here, plaintiff has pled facts that suggest Hoag's adverse employment actions were caused by his discrimination against plaintiff. See McIntyre v. Longwood Central Sch. Dist., No. 07 Civ. 1337, 2008 WL 850263, at *8 (E.D.N.Y. Mar. 27, 2008), aff'd, 380 F.Appx. 44 (2d Cir. 2010) (citing Ferro v. Ry. Express Agency, Inc., 296 F.2d 847, 851 (2d Cir. 1961)). Plaintiff alleges that Hoag made a number of discriminatory comments to plaintiff; for example, when plaintiff asked Hoag why he removed plaintiff's access to HAZMAT locations, Hoag responded that he was concerned about plaintiff "since he is from Egypt" and that his decision "was a precautionary measure." See Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115-16 (2d Cir. 2007); see also Rose v. N.Y.C. Bd. of Educ., 257 F.3d 156, 162 (2d Cir. 2001) (finding that remarks were sufficient to show a discriminatory animus). Because plaintiff has pled facts demonstrating that he suffered an adverse employment action that was plausibly caused by a discriminatory intent, plaintiff has sufficiently pled a Title VII discrimination claim.
I briefly address here plaintiff's Title VII discrimination claim based on his "perceived religion." Although I find that the amended complaint sufficiently alleges a Title VII discrimination claim based on national origin and race, there is no discrimination claim based on perceived religion. The two incidents that make up plaintiff's discrimination claim based on perceived religion - that during an Equal Employment Opportunity ("EEO") investigation, the EEO Officer failed to investigate plaintiff's "evidence" and subsequently insisted on an Englishonly policy with the DEP, and Hoag's statement to plaintiff that, "Is it true that Bedouins have 70 kids?" - do not sufficiently state a religious discrimination claim. The EEO Officer's failure to properly conduct the EEO investigation does not plausibly show that plaintiff suffered an adverse employment action. See O'Dell v. Trans World Entm't Corp., 153 F.Supp.2d 378, 396 (S.D.N.Y. 2001), aff'd, 40 F.Appx. 628 (2d Cir. 2002). Additionally, imposition of an Englishonly policy, without any additional evidence of discrimination, is not an adverse employment action. See Pacheco v. New York Presbyterian Hosp., 593 F.Supp.2d 599, 612-13 (S.D.N.Y. 2009). In this case, plaintiff does not present any facts suggesting a discriminatory motive behind the English-only policy, and therefore it cannot serve as a basis for plaintiff's discrimination claim. See Patane, 508 F.3d at 112-13; Soberal-Perez v. Heckler, 717 F.2d 36, 41-42 (2d Cir. 1983); Brewster v. The City of Poughkeepsie, 447 F.Supp.2d 342, 351 (S.D.N.Y. 2006). Finally, a single comment about Bedouins does not indicate that defendants ...