United States District Court, S.D. New York
ORDER & OPINION
LORNA G. SCHOFIELD, District Judge.
Plaintiff Mario Lapaix brings this employment discrimination action against Defendants the City of New York, John Castellaneta, Martha K. Hirst, Ilene Lees, and Anthony Crowell. The Complaint asserts race and national origin discrimination and retaliation claims under the New York State and New York City Human Rights Laws (the "NYSHRL" and "NYCHRL, " respectively) and 42 U.S.C. §§ 1981 and 1983. The Complaint also brings claims for discrimination against members of the military under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq., the NYSHRL, New York Military Law § 242, and New York City Service Law § 88. Defendants move to dismiss all of the claims in the Complaint except the reemployment claims under USERRA (First Count). For the reasons stated below, the Defendants' motion is granted in part and denied in part.
Plaintiff Lapaix is a black male of Haitian national origin and a resident of New York City. Plaintiff earned a Bachelor of Arts degree from Marist College in 1977, a Master of Arts degree from Fordham University in 1997 and a Master of Arts degree in National Security Strategic Studies from the United States Naval War College in 2002. Plaintiff is a military veteran and retired Marine Colonel who was on active duty with the Marine Corps from 1977 to 1984 and a reserve member from 1985 to 2012.
At all times relevant to Plaintiff's claims, Defendant Hirst was the Commissioner for Administration and Security for the Department of Citywide Administrative Services ("DCAS"), and she left her employment with the City in 2010. Defendant Castellaneta was Deputy Commissioner for Administration and Security at DCAS and left his employment with the City in 2011. Defendant Lees was General Counsel of DCAS and left her employment with the City in 2011. Defendant Crowell was Counselor to then Mayor Bloomberg and left his employment with the city in 2012.
From 1985 to 2012, Plaintiff was both a full time employee of the City and a Marine Corps Reserve member. Between 1985 and 2001, Plaintiff was promoted by the City seven times, rising to the position of Assistant Commissioner and Senior Executive for Transportation Services at DCAS by 2001. Plaintiff also maintained manager status as an Administrative Staff Analyst. As a Marine Corps Reserve member, Plaintiff was the Detachment Commander for the 4th Civil Affairs Group in 2001. On May 17, 2001, Plaintiff was selected to attend the Naval War College in Newport, Rhode Island, notified his supervisors at DCAS, and was granted a one-year military leave of absence from DCAS.
Upon returning to DCAS in July 2002, Plaintiff met with Defendant Castellaneta to discuss reemployment at his previous position at DCAS. Castellaneta, who had inherited some of Plaintiff's responsibilities, informed Plaintiff that there were no jobs for him at DCAS and that it was Plaintiff's responsibility to secure another job with the City. Plaintiff requested to speak with Defendant Hirst, Castellaneta's superior, but was told by Castellaneta that Hirst refused to speak with Plaintiff and that Hirst directed Castellaneta to inform Plaintiff that no positions existed.
Plaintiff remained on DCAS payroll and searched for another position in the city. In August of 2002, Plaintiff secured a position as Advisor and Assistant to the Deputy General Manager for Administration at the New York City Housing Authority ("NYCHA"), which was inferior to his position at DCAS as Plaintiff did not have the same management responsibilities and had no control over policy. Plaintiff was ineligible to receive promotions at NYCHA and DCAS.
In January 2003, Plaintiff, then a Colonel-Select, was mobilized by the Marine Corps to serve as a senior military leader in support of the war in Iraq. Plaintiff notified his supervisors at the DCAS and the City and was again granted a military leave of absence. Upon returning to DCAS in October 2003, Plaintiff was again informed by Defendant Castellaneta that there were no jobs for him at DCAS.
In January 2004, Plaintiff spoke with Shameka Boyer, Director of Personnel at DCAS. Boyer told Plaintiff that DCAS could have created an equivalent position to his former position as Assistant Commissioner and Senior Executive for Transportation Services at no additional cost to DCAS. Still, Plaintiff could not obtain a position at DCAS and returned to work at NYCHA. In March 2004, Plaintiff was mobilized by the Marine Corps to serve as a Special Advisor for a tour in Haiti. Upon returning to DCAS in September 2004, Plaintiff was informed again by Defendant Castellaneta that there was absolutely no way Plaintiff could work at DCAS.
From May 2006 to June 2007, Plaintiff was again mobilized by the Marine Corps to serve as a Major Subordinate Commander in Iraq, for which he received the U.S. Bronze Star Medal. Upon Plaintiff's return, Plaintiff met with Defendant Castellaneta for the fourth time, and told Castellaneta that he would not return to NYCHA and demanded that Plaintiff be allowed to return to DCAS. Castellaneta informed Plaintiff that there were no jobs for him at DCAS, but that Plaintiff could have a temporary office in the Municipal Building to conduct his job search.
In January 2008, Roger Newman, Commissioner for the Mayor's Office of Veterans' Affairs ("MOVA"), offered Plaintiff employment as MOVA's Senior Military Advisor, which Plaintiff accepted. The Complaint alleges that Defendant Crowell opposed Plaintiff's joining MOVA because Defendant Castellaneta cast aspersions on him. Plaintiff remained on DCAS payroll while at MOVA, and was therefore ineligible to receive promotions.
On June 3, 2008, Plaintiff was mobilized once more by the Marine Corps for a special assignment in support of the Iraq War, this time to set up a new Marine Corps Forces in Africa. Plaintiff returned in 2010, and met with Castellaneta for a fifth and final time in an attempt to regain his former position at DCAS. Plaintiff, however, did not rejoin DCAS and returned to MOVA. When Plaintiff rejoined MOVA, Commissioner Newman announced his retirement. Newman recommended to Defendant Crowell that Plaintiff become Newman's replacement and successor. Newman did not hear from Crowell for months and then contacted him. Crowell told Newman that he would not consider interviewing Plaintiff for the position.
In November, 2010, Edna Wells Handy became Commissioner of DCAS. Plaintiff sent Commissioner Handy a letter explaining his status and experiences with DCAS. Thereafter, Commissioner Handy learned from Defendant Castellaneta that Defendant Hirst did not want Plaintiff to work at DCAS. When Handy contacted Hirst, however, Hirst said that he did not know who Plaintiff was and that Castellaneta was responsible for all decisions regarding Plaintiff's reemployment. In February 2011, Commissioner Handy allowed Plaintiff to return to DCAS as her Special Advisor until she could find Plaintiff a comparable or better position, but without the promotions that his peers had received over the intervening years. Two weeks after Plaintiff returned to DCAS, Commissioner Handy informed Defendant Crowell of Plaintiff's new position, for which Defendant Crowell expressed verbal disapproval.
In July 2011, Commissioner Handy announced that Plaintiff would be promoted to the position of Chief External Operations Officer for DCAS. Shortly after the announcement, however, Plaintiff was involved in an incident with a colleague named Marty Preston, who allegedly grabbed Plaintiff from behind. Commissioner Handy, at Defendant Crowell's behest, directed her Chief of Staff to investigate the incident. Plaintiff was forced to undergo psychological and medical evaluations during the investigation. Preston did not have to undergo such evaluations. During the investigation, spanning from August to October 2011, Plaintiff was directed to take a paid leave of absence, resulting in a wave of rumors throughout the agency. Plaintiff was never provided with the findings of the investigation.
The Complaint alleges that white DCAS employees, for example, Julianne Cho, were not subject to evaluations or told to take leaves of absence pending completions of their investigations. In 2012, Plaintiff was the subject of two more investigations, allegedly as a result of DCAS's failure of leadership in preventing rumors and false allegations against managers. Specifically, the Complaint alleges that Plaintiff was "singled out" for investigation and falsely accused of misconduct as generalized retaliation from his ...