United States District Court, S.D. New York
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Special Hagan, Plaintiff, Pro se, Law Offices of Special Hagan, Saint Albans, NY.
For City of New York, Commissioner Carole Wallace Post, of DoITT, idividually and in her official capacity, also known as Carole Post, Commissioner Katherine Oliver, of MOME, in her official capacity and individual capacity, Deputy Commissioner Diane Crothers, of OCEEO, individually and in her official capacity, Asst. Commissioner Patricia Andre LeGoff , of Equal Employment Opportunity at the DOC, in her official capacity and individually, also known as Patricia LeGoff, Commissioner Edna Wells Handy, of DCAS, as aider and abettor and in her individual capacity, Defendants: Mario Gerard Frangiose, LEAD ATTORNEY, New York City Law Depart. Office of the Corporation Counsel, New York, NY.
OPINION AND ORDER
J. PAUL OETKEN, United States District Judge.
Plaintiff Special Hagan, an African-American former Equal Employment Opportunity (EEO) Officer for the City of New York, brings this action pro se against the City and several of its officials pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., 42 U.S.C. § § 1981 and 1983, the New York State Human Rights Law (SHRL), N.Y. Exec. L. § § 290 et seq., and the New York City Human Rights Law (CHRL), N.Y.C. Admin. Code § § 8-107 et seq. Hagan claims that Defendants discriminated against her on the basis of her race, primarily by maintaining an environment of cronyism
that results in preferential treatment for Caucasian patronage appointees. She further alleges that she was subjected to a hostile work environment and retaliated against for attempting to investigate and draw attention to the City's unlawful practices. Defendants have moved to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, their motion is granted in part and denied in part.
A. Factual Background
The following facts are drawn from the amended complaint (Dkt. No. 11 (" Am. Compl." )) and the submitted extrinsic documents that may be considered on a motion to dismiss. They are assumed to be true for purposes of this motion.
1. The Parties
Plaintiff is an attorney admitted to practice in the state of New York since 2004 whose career has focused upon promoting equal opportunity in employment. Defendants are the City and several officials with whom she worked while at the Department of Information Technology and Telecommunications (DOITT) and the Department of Correction (DOC). The individual defendants are Carole Wallace Post, former Commissioner of DOITT; Diane Crothers, Deputy Commissioner of Citywide EEO for the Department of Citywide Administrative Services (DCAS); Edna Wells Handy, Commissioner of DCAS; Katherine Oliver, Commissioner of the Mayor's Office of Media and Entertainment (MOME); and Patricia LeGoff, Assistant Commissioner of EEO at DOC. They are sued in their personal and official capacities. With the exception of Handy, who is African-American, they are all Caucasian.
Hagan began working at DOITT as Senior Director of EEO on August 30, 2010. Her responsibilities in this role included conducting investigations, training and advising staff on the City's EEO policy, monitoring the hiring process, and organizing diversity activities. She reported directly to Post. She also regularly interacted with and reported to Oliver, Crothers, and Georgia Pestana, head of the Law Department's Labor and Employment Division.
Hagan alleges that she was subjected to discrimination in the terms of her employment in several ways. First, she was required to submit more to verify her income and employment than Rachel Sterne Haot, a Caucasian female hired at the same time who was comparably educated and experienced, reported to a commissioner, and had been self-employed at a comparable income. While Hagan was asked for copies of checks from her former client, Haot was required to submit only an online printout of her tax return. Second, Post and Crothers refused her request to have the title of Assistant Commissioner or Executive Director, even though Crothers had an initiative to hire EEO Officers at the level of Assistant Commissioner or higher and in fact provided Caucasian female officers with superior titles and compensation than their African-American peers. Third, Hagan was given only a part-time staff person while her Caucasian predecessor, Emily Johnson, always had a full-time assistant. Her experience with
staffing is allegedly representative of minority EEO Officers at DOITT.
Beyond inferior terms of employment, Hagan describes an environment of cronyism and disdain for diversity policies, facilitated largely by and at the direction of Post. In support of this generalization, she alleges that: (i) she was required to serve as EEO Officer for both DOITT and MOME, even though City policy required each agency to have its own officer; (ii) Post told her it did not really matter if someone filed a racial discrimination complaint because the Equal Employment Opportunity Commission (EEOC) rarely investigated claims filed by minorities; (iii) she was hired because of her race, not to promote diversity, but to stem the tide of discrimination complaints without resolving the underlying issues; and (iv) Post encouraged her and other employees not to follow two of the City's hiring policies that promoted diversity--an " open-window" policy requiring positions to be posted online and limiting interviews to those who applied during that period, and a " Rule of 4" policy requiring managers to interview at least four applicants for every position.
When Hagan attempted to investigate complaints and resisted the City's unfair practices, she experienced resistance and retaliation from Post and others. Shortly after arriving at DOITT, for instance, she was tasked with hiring a full-time staff person for the EEO Unit. Post wanted her to choose Raymond Ng, an Asian-American male colleague from the Department of Buildings with no experience in EEO and only a Bachelor's degree. She also wanted to pay him $75,000 a year--$25,000 more than the salary of the former, African-American staff person who had several years of EEO experience and a Master's degree, and had left when her request for a promotion had been denied. During a one-on-one meeting, Post told Hagan that she knew she was going to pick Joao Texiera, an African-American male, instead of Ng and said: " So you want to hire your own people? I understand." (Am. Compl. ¶ 70.) This comment offended Hagan because it suggested that she was hiring based upon race rather than merit. In retaliation for not selecting Ng, Post held up the processing of Texiera's hire for several months. Also in retaliation and on account of her race, Post would " antagonize" Hagan over her job performance and her knowledge of the law throughout her time at DOITT. ( Id. ¶ ¶ 73, 76.) Hagan experienced further " hostility and retaliation" from Post when she pushed back on DOITT's non-compliance with the open-window and Rule-of-4 policies. ( Id. ¶ 106.)
Hagan was later approached by Crothers with a request for a list of managerial hires with their racial demographic information. Crothers claimed that she was working with the Department of Investigation (DOI) to investigate confidential complaints of racial discrimination in hiring and promotional practices at DOITT. While she had asked Hagan's Caucasian predecessor, Johnson, for this information only once, she would " relentlessly harass" Hagan for the same because she is African-American. ( Id. ¶ 92.) Hagan subsequently emailed Post, Crothers, and Mitchell Ahbaulm, an individual in the Law Department, about the anonymous complaints and asked to review the agency's applicant and interview logs, but she was met with " harassment," " lack of support," and " hostility" from " managers, HR and or from Post." ( Id. ¶ 101.)
In September 2010, Hagan was approached by four MOME minority employees with anonymous complaints of discrimination in hiring and promotion. They claimed that Oliver engaged in cronyism
and gave Caucasian employees preferential treatment in terms of opportunities, titles, and compensation. During the course of her investigation, Hagan discovered that MOME had a history of discrimination litigation and that Oliver had hired only Caucasian employees. In October, she attempted to mediate an agreement but Oliver refused to address the complaints. She eventually reached out to Pestana, who told her that she was obligated to investigate. Hagan was subsequently approached with a sexual harassment complaint from an Asian female MOME employee against a Caucasian male coworker. During this investigation, Oliver exhibited racial animus against the complainant and said she wanted to transfer or fire her even though she had no issues with her performance. Oliver also sought to unduly interfere with Hagan's investigation by insisting on knowing when interviews would happen and on being involved in the outcome.
On October 29, pursuant to Pestana's directive, Hagan sent an official notice of the MOME discrimination complaints to Oliver, and on November 2, she hand-delivered a copy to Post. Post began to " harass" Hagan about the level of detail in her agendas, allegedly because it imputed knowledge of discrimination to Post. ( Id. ¶ 183.) On November 15, Hagan met with Post again to discuss the discrimination and sexual harassment complaints and was asked to conduct a teambuilding exercise with Oliver's Film, Theatre and Broadcasting (FTB) Group. On November 30 and December 1, Hagan interviewed six employees about the discrimination complaints and sent emails to eight minority MOME staff members in the FTB Group. After the teambuilding session the next day, Oliver pulled Hagan aside and expressed anger that she had reached out to the eight staff members. She then contacted Bill Heinzen, General Counsel (GC) to then-Mayor Bloomberg, who informed Post and Oliver that Hagan was not authorized to investigate Oliver because she was a commissioner and ordered an end to the investigation. Hagan alleges that, although the EEO Policy in fact prohibits such investigations, the real reason the investigation was called off was because Oliver did not like the direction in which it was going.
On December 5, Post met with Hagan and told her that the discrimination complaints would be transferred to the Law Department, cancelled Hagan's upcoming teambuilding session, and said that she and Oliver took issue with Hagan's discussion of patronage appointments, abortion, and affirmative action during the FTB session because they were " inappropriate" topics, discussion of which evidenced a " lack of judgment." ( Id. ¶ 209.) Hagan alleges that this was simply a pretext for Post's retaliatory cancellation of the upcoming session because she had provided " full disclosure" of the FTB session topics beforehand. ( Id. ¶ 206.) From then on, Post (and Oliver) prohibited Hagan from visiting any MOME sites. Post also insisted that Hagan report to Crothers, Johnson, and the GC's office before completing any tasks; required her to put requests in writing; made her stop working on a citywide training initiative; prevented her from conducting training sessions; overloaded her with administrative tasks; and, finally, removed all of her job functions with the exception of investigating complaints and processing applicant logs.
On December 23, Hagan discovered that her email was being monitored and deleted, including an email that included DOI's investigation of discrimination at MOME. On January 5, 2011, Hagan had a " heated exchange" with Post in which she said that she would continue to train despite Post's efforts to stop her. ( Id. ¶ 223.) Post then began to " harass" her about a teaching position she had held at City University of New York, Lehman College since 2002. Later that month, Hagan had yet another " heated exchange" with Post in which she asked why two African-American senior managers were being made to report to Caucasians with less experience. ( Id. ¶ 223.) Post became " livid" and yelled " this is bullshit, people just need to get to work!" ( Id. ¶ ¶ 234, 238.) At an unspecified time in January, Post also told Hagan that she was a conservative when she saw her wearing " African attire" with braided hair for the first time. ( Id. ¶ 241.)
At a DCAS Task Force meeting on February 11, Crothers instructed attendees to implement the " Reductions in Force" and " Hiring Flexibility" recommendations from the Task Force's report. In response, Hagan expressed concern that these recommendations were " a blueprint to disband the civil service system" and would lead to more appointments of less-experienced Caucasian patronage hires, thereby disparately impacting minorities. ( Id. ¶ 245.) In retaliation, Hagan was excluded from subsequent task force meetings.
Sometime later, Hagan was approached by an employee with an anonymous tip that fraud and overbilling were rampant in the Emergency Communications Transportation Program (ECTP) and a suggestion that internal controls be put into place to monitor spending. When Hagan approached Post and Ahbaulm with this information, they pressured her to reveal more and insinuated that she should approach the employee to gather additional details. They did not, however, report the tip to the appropriate authority, and instead Hagan " continued to experience retaliation and reprisal for her protected activities." ( Id. ¶ 255.) In mid-February, Hagan attempted to organize a diversity panel discussion with Oliver's staff. When Oliver found out, she had Post cancel Hagan's plans. On February 16, Hagan was called into DOI, where, in a recorded interview, she gave her impressions on the MOME discrimination investigation and described how she had been subjected to retaliation.
On February 18, Hagan met with Post and Crothers and was told that she would be transferred to DOC, where she would remain on DOITT's payroll for 90 days, after which she would either be absorbed onto DOC's payroll or terminated. During this meeting, Crothers suggested that Hagan was not the only EEO Officer that she had transferred and said " there were others." ( Id. ¶ 264.) Hagan was replaced by Johnson, her Caucasian predecessor, at a higher rate of pay. Compared to Hagan, Johnson had accomplished substantially less during twice as much time, had less experience, and was not licensed to practice law as required under City policy for
her position. The decision to reinstate Johnson and transfer Hagan was made by Post and Crothers because of Hagan's race and in retaliation for her complaints and investigations.
Hagan initially did not have a title at DOC, but eventually she was given the title of EEO Counsel. This title had never existed before and was created solely for the purpose of her transfer. At DOC, Hagan reported to LeGoff. During their first meeting, LeGoff blurted out that " she had nothing to do with what they did to you!" ( Id. ¶ 276.) Hagan soon realized that the transfer was a demotion as she no longer reported to a commissioner or had a Blackberry, was assigned only menial tasks, and was not allowed to organize diversity events on her own. She was also required to work with a Caucasian female who retaliated against her in a more subtle fashion by repeatedly changing the terms of assignments and rejecting her adequate work product.
In time, Hagan noticed that LeGoff exhibited racial animus toward the primarily African-American staff and interacted only with the sole " Latina" staff person. ( Id. ¶ 283.) LeGoff also confided to Hagan that she disliked her staff, leading Hagan to believe that she was " disdain[ful] [of] African Americans and . . . wanted to rid her unit of them by any means necessary." ( Id. ¶ 286.) Hagan was soon enlisted to help staff with their investigations and learned that LeGoff signed off on complaints instead of DOC's commissioner, in violation of EEO policy, and had a practice of changing the findings of her staff and interfering with their investigations based on considerations of agency politics. Hagan experienced this first-hand while investigating a national origin discrimination complaint against several members of the IT department. Shortly after the complaint was filed, LeGoff approached Hagan and told her that " the IT group are our friends," implying that she should not make a finding against them. ( Id. ¶ 295.) When Hagan requested a copy of a respondent's resume to compare it with that of the complainant, LeGoff " demanded why [she] would want her resume" and interfered to prevent its production. ( Id. ¶ 297.) LeGoff also became " incensed" upon discovering that Hagan had obtained recorded verbal admissions from two of the respondents of racial discrimination in the IT department. ( Id. ¶ 302.)
In April 2011, Hagan was contacted by Dawn Littlejohn, an African-American female who had been the EEO Officer for the Administration of Children's Services (ACS). Littlejohn complained that she had been demoted and replaced by a less-qualified Caucasian, and claimed that Crothers had orchestrated the transfer with the Commissioner of ACS and had arranged similar involuntary transfers for two African-American EEO Officers from the Department of Juvenile Justice. On May 12, Hagan complained in an email to Handy about the practice of " transferring" EEO Officers and her own experience. Handy replied that she would " look into it" but never contacted Hagan again. ( Id. ¶ 309.) Afterward, Hagan experienced " increased hostility and retaliation" from LeGoff, including an unsuccessful attempt to stop her from training. ( Id. ¶ 311.) LeGoff also allegedly retaliated against Hagan by writing her up for losing her identification card several weeks after Hagan had found it.
On June 6, Udelle Ward, a DOC staff person, called Hagan to set up a time for her to meet with a DOC Captain in the rear lobby of the agency building. At the meeting, the Captain claimed that he had been the victim of race and national origin discrimination and retaliation for his brother's anti-corruption activities, and
that his brother had been arrested and was being repeatedly sexually assaulted in prison in retaliation for reporting corruption of a political official. Hagan immediately reported these allegations to DOI and, when she did not receive a written acknowledgment of her complaint, contacted several City Council members and the Commissioner of DOI. Hagan alleges that this incident was an attempt by LeGoff and Ward to entrap her into soliciting a client on DOC premises, again as retaliation. She bases this upon Ward's earlier statement that she would do whatever was necessary to get an office job and that LeGoff " would look out for her." ( Id. ¶ 327.) Hagan also alleges that she " was retaliated against for reporting" the DOC Captain's fraud and corruption charges. ( Id. ¶ 339.)
The last two weeks of Hagan's time at DOC were " filled with hostility," so much so that she spent most of her time at home ill. ( Id. ¶ 340.) On June 29, as she was nearing the end of her investigation of the IT complaint and about to make a finding in favor of the complainant on some counts, she was told that she would be terminated that day instead of on June 30. Hagan alleges that " no other DOITT employee has been terminated in such a humiliating and demeaning manner," which was done with Post's " knowledge and approval," and that her termination amounted to further retaliation. ( Id. ¶ ¶ 344-45.)
4. After DOC
On August 15, 2011, Hagan made a follow-up inquiry to Handy regarding her complaint about the improper transfer of EEO Officers. A week later, she received an email from Handy's Acting GC stating that " we do not believe that it would be productive or appropriate for us to meet to discuss this matter," and informing her that she could file a lawsuit. ( Id. ¶ 349.) Hagan later discovered that Lehman College would not renew her employment contract, and that Post had met with DOITT's former Chief of Staff, who held an executive position at the college, several times in early 2011. She alleges that Post coordinated the non-renewal of her position as further retaliation for her actions.
B. Procedural Background
Hagan filed a charge with the EEOC on April 17, 2012 and received a right-to-sue letter on November 20. She commenced this action pro se on February 19, 2013 and filed an amended complaint on August 21, 2013. (Dkt. Nos. 2 & 11.) Defendants moved to dismiss on February 3, 2014. (Dkt. No. 21.)
II. Legal Standard
To withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must plead sufficient factual allegations " to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has facial plausibility if the well-pleaded factual allegations of the complaint, presumed true, permit the court to " draw the reasonable inference that the defendant is liable for the misconduct alleged."  Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556).
" Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678 (citing Twombly, 550 U.S. at 555). Moreover, " [w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Although pro se complaints are generally held to a less stringent standard than pleadings drafted by attorneys, this special solicitude ordinarily does not apply when the pro se plaintiff is herself an attorney. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (citations omitted).
In the context of employment discrimination and retaliation claims, " [t]he elements of a prima facie case can help provide an outline of what is necessary to render [the plaintiff's] claims for relief plausible." Sommersett v. City of New York, 09-CV-5916 (LTS), 2011 WL 2565301, *5 (S.D.N.Y. June 28, 2011). However, " [t]o survive a motion to dismiss, a complaint . . . need not allege specific facts establishing a prima facie case." Gonzalez v. Carestream Health, Inc., 520 F.App'x 8, 9-10 (2d Cir. 2013) (citing Boykin v. KeyCorp., 521 F.3d 202, 213 (2d Cir. 2008) (Sotomayor, J.)); see also DiPetto v. U.S. Postal Serv., 383 F.App'x 102, 103 (2d Cir. 2010) (citing Boykin ); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 241 (2d Cir. 2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Rather, the complaint need only be " facially plausible and allege sufficient facts to give the defendant fair notice of the basis for the claim." Brown v. Daikin Am., Inc., ...