United States District Court, S.D. New York
For Plaintiff: Jesse Curtis Rose, Esq., The Rose Law Group PLLC, New York, N.Y.
For Defendant: Alexis Downs, Esq., John S. Schowengerdt, Esq., New York City Law Department, New York, N.Y.
OPINION & ORDER
KENNETH M. KARAS, UNITED
STATES DISTRICT JUDGE
Plaintiff Lionel Allen (" Allen" ), by his counsel, brings this Action against the New York City Department of Environmental Protection (" DEP" or " Defendant" ), alleging that Defendant discriminated against him on the basis of his race and national origin. Defendant moves to dismiss pursuant to Rule 12(b)(6). For the reasons stated below, the Motion is granted in part and denied in part.
A. Factual Background
Plaintiff's Complaint can be read to allege the following facts, which are accepted as true for the purposes of the instant Motion. Plaintiff worked for Defendant from 1989 until January 6, 2012. (Third Am. Compl. (" TAC" ) ¶ ¶ 10, 38 (Dkt. No. 23).) During that time, Defendant hired
no Black or Jamaican individuals, other than Plaintiff. ( Id. ¶ ¶ 13, 14.) On a number of occasions, Plaintiff applied for promotions within his department, but did not receive them, despite the fact that Plaintiff regularly received positive performance reviews. ( Id. ¶ ¶ 12, 16.) In each of these instances, a non-Black, non-Jamaican employee, some of whom had been trained by Plaintiff, was promoted instead of Plaintiff. ( Id. ¶ 16.)
For example, Plaintiff applied for the position of " Associate Project Manager" in June 2006, " Associate Project Manager" in December 2006, " Supervisor (Watershed Maintenance)" in January 2007, " Supervisor (Watershed Maintenance)" in June 2007, " Project Manager" in June 2007, " Supervisor Watershed Maintenance" in April 2008, " Supervisor Watershed Maintainers/Assistant Chief Operator" in June 2008, " Civil Engineer" in December 2008, " Associate Project Manager/Supervisor of Program Compliance" in December 2008, " Associate Project Manager" in February 2009, and " Associate Project Manager/Assistant to RMP Manager" in March 2009. ( Id. ¶ 17(a)-(k).) Plaintiff alleges that he was qualified for all of these positions, but was denied each position in favor of a similarly or less qualified non-Black and non-Jamaican individual. ( Id. ¶ ¶ 17-18.)
In 2006, Plaintiff obtained a scholarship to pursue a degree in civil engineering. ( Id. ¶ 20.) That same year, two White individuals, who were less experienced than Plaintiff, had worked for Defendant for less time than Plaintiff, and were less qualified than Plaintiff, were promoted over Plaintiff to positions for which Plaintiff had applied. ( Id. ¶ 21.) When Plaintiff raised this issue with management, Defendant refused to act and instead " instructed [Plaintiff] to wait." ( Id. ¶ 22.)
In September 2007, Plaintiff and his union representative met with Defendant's employees to discuss Plaintiff's applications for promotion. ( Id. ¶ 23-24.) During this meeting, Plaintiff's union representative stated that the only possible reason for not promoting Plaintiff was his race and national origin. ( Id. ¶ 24.) Defendant's employees did not deny this assertion, but instead promised Plaintiff a promotion if he refrained from reporting the issue to the Equal Employment Opportunity Commission or filing an official complaint of discrimination. ( Id. ¶ ¶ 25-26.)
Following the September 2007 meeting, Plaintiff continued to apply for positions for which he was qualified, including the position of " Project Manager" and " Dam Safety Inspector," but was still not selected. ( Id. ¶ 27.) On February 17, 2009, Plaintiff interviewed for the position of " Dam Safety Inspector," but was told that he did not qualify because he did not have a Professional Engineer's License. ( Id. ¶ 28.) However, Plaintiff alleges that more than one White employee was promoted to the position of " Dam Safety Inspector" without such a license and that the only reason Plaintiff was not promoted to this position was because of his race, national origin, and his September 2007 discrimination complaint. ( Id. ¶ ¶ 28, 29.)
In 2009, Plaintiff filed an Equal Employment Opportunity Commission (" EEOC" ) complaint, alleging that Defendant illegally discriminated against Plaintiff by failing to promote him. ( Id. ¶ 30.) " Immediately after Plaintiff filed this charge, Defendant's employees had Plaintiff arrested" for what Plaintiff claims was a " clerical error" involving the recording of dates when Plaintiff was absent from work due to jury duty. ( Id. ¶ ¶ 31-32, 33.) Plaintiff claims that such an error " is not typically handled in such a manner by Defendant" and that the criminal charges " were entirely retaliatory in reaction to [Plaintiff's]
complaint of discrimination." ( Id.) While the criminal charges against Plaintiff were ultimately reduced to a violation rather than a felony, Defendant also pursued disciplinary proceedings against Plaintiff for this incident. ( Id. ¶ 34.)
Around the same time, Plaintiff's supervisor told Plaintiff to " jump, because there [was] nowhere else for [him] to go." ( Id. ¶ 35 (internal quotation marks omitted).) Another of Plaintiff's supervisors, who had interviewed plaintiff for the position of " Dam Safety Inspector," told Plaintiff that he had seen Plaintiff's EEOC complaint and stated, " [I]f I were you, I would watch myself around here." ( Id. ¶ 36 (internal quotation marks omitted).) Plaintiff interpreted his interactions with both supervisors to be threats of retaliation for Plaintiff's filing of the EEOC complaint. ( Id. ¶ ¶ 35, 36.)
On February 3, 2010, Plaintiff fell while at work, injuring his shoulder and knee and necessitating medical leave. ( Id. ¶ ¶ 37-38.) While Plaintiff was out on leave, Defendant terminated him, effective January 6, 2012. ( Id. ¶ 38.) Plaintiff challenged this termination in New York state court and, on May 2, 2013, the Supreme Court of the State of New York found that Plaintiff had been " improperly terminated under Civil Service Law § 73, because his absences were due to a disability resulting from an occupational injury," and " because the DEP did not provide [Plaintiff] with a notice of intended action." Allen v. City of New York, 39 Misc.3d 1223[A], 975 N.Y.S.2d 364, 364, 2013 N.Y. Slip. Op. 50717[U] (Sup.Ct. 2013). The court ordered Plaintiff be reinstated, see id. at 364, but, as of the date of the TAC, Defendant had not done so, ( see TAC ¶ 39).
B. Procedural Background
On January 8, 2013, Plaintiff filed his Complaint. ( See Dkt. No. 2.) He filed an Amended Complaint on January 28, 2013, ( see Dkt. No. 4), a Second Amended Complaint on May 31, 2013, ( see Dkt. No. 17), and the TAC, the operative complaint for the purposes of the instant Motion, on August 16, 2013, ( see Dkt. No. 23).
Plaintiff's TAC alleges that Defendant failed to promote Plaintiff on the basis of his race and national origin and discriminated against him in violation of the anti-discrimination provisions of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the corresponding New York State anti-discrimination statute. ( See TAC ¶ ¶ 46-49, 54-56, 60-62.) In addition, Plaintiff's TAC alleges that Defendant retaliated against Plaintiff for filing a discrimination claim with the EEOC in violation of the applicable anti-retaliation provisions of the same statutes. ( Id. ¶ ¶ 50-53, 57-59, 63-65.) As a result of Defendant's actions, Plaintiff claims to have suffered " loss of income, . . . salary, bonuses, benefits and other compensation," as well as " future pecuniary losses, emotional pain, suffering, inconvenience, loss of enjoyment of life, and other non-pecuniary losses," and " severe emotional and physical distress." ( Id. ¶ 43.) By way of remedy, Plaintiff seeks " all lost wages and benefits resulting from Defendant's unlawful discrimination," ( id. ¶ B), as well as " compensatory damages for mental, emotional and physical injury, distress, pain and suffering[,] and injury to his reputation," ( id. ¶ C), as well as any other relief as the Court may deem equitable, ( id. ¶ E).
Defendant filed its Motion To Dismiss on January 10, 2014, ( see Dkt. No. 29), along with Defendant's Memorandum of Law in Support of Defendant's Motion (" Def.'s Mem." ), ( see Dkt. No. 31), and a Declaration of Adam E. Collyer in Support of the same (" Collyer Decl." ), ( see Dkt. No. 30). Plaintiff filed a ...