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Gordon v. City of New York

United States District Court, S.D. New York

June 2, 2015

ROBERT W. GORDON, ESQ., Plaintiff,
THE CITY OF NEW YORK, MARC ANDES, MARK PALOMINO, GAYLE SANDERS, FAY LEOUSSIS, MICHAEL A. CARDOZO, DAVID SANTORO, JOHN DOE(S) AND JANE DOE(S) (names currently unknown) each in his/her official and individual capacities, Defendants.


J. PAUL OETKEN, District Judge.

Plaintiff Robert W. Gordon ("Gordon"), an African-American attorney for the New York City Law Department ("the Law Department"), brings this action pro se against the City of New York ("the City") and several of its officials pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. §§ 1981, 1983, 1985, and 1986; the New York State Human Rights Law ("SHRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law ("CHRL"), N.Y.C Admin. Code § 8-101 et seq. Gordon claims that the City of New York and at least six employees of the Law Department (collectively, "Defendants") discriminated against him on the basis of race and employed facially neutral practices that have a disparate impact on African Americans. He further alleges that he was subjected to a hostile work environment and retaliated against for filing a complaint with the Equal Employment Opportunity Commission ("EEOC") identifying these unlawful practices. Defendants have moved to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

I. Background

The Court takes the following facts, pleaded in the Complaint, as true for the purpose of resolving the motion to dismiss.

Gordon is a "black, African-American male." (Dkt. No. 1 ("Compl.") ¶ 7.) He received his undergraduate degree from Morehouse College in Atlanta, Georgia, where he graduated in the top five percent of his class and was inducted into the Phi Beta Kappa honor society. ( Id. ¶ 20.) In May 2004, he received his J.D. from New York University School of Law, and a year later, was admitted to the New York State Bar. ( Id. ¶¶ 17-18.) Upon graduating from law school, Gordon immediately joined the Law Department as a full-time "Assistant Corporation Counsel" ("ACC").[1] ( Id. ¶ 16.) He continues to hold this title today. ( Id. )

When Gordon joined the Law Department, he was first placed in the Manhattan Trial Unit ("MTU"), one of the "borough units" of the Law Department's Tort Division. ( Id. ¶¶ 8, 22.) On August 23, 2005, after a year of working in MTU, Gordon wrote a letter to his immediate supervisor, with a copy to the assistant borough chief, regarding, among other things, "the slip-shod' nature of MTU, the lack of proper training and guidance, and the effects such [problems] had on efficiency." ( Id. ¶ 24.) He offered suggestions on how to remedy the problems. ( Id. )

To discredit the concerns Gordon raised in his letter, Defendant Fay Leoussis ("Leoussis"), Chief of the Tort Division, "orchestrated and/or condoned" a "smear campaign" against Gordon. ( Id. ¶¶ 13, 24.) Specifically, Leoussis, along with other unknown parties, "intentionally and artificially manipulat[ed] [Gordon's] 2005 performance evaluation to reflect a below average' performance rating in order to cast [Gordon], rather than the inherent practices of the Tort Division, as the problem, ' thus discrediting the concerns [Gordon] raised in his letter." ( Id. ¶ 25.) As a result, Gordon received a score of "4" on his 2005 performance evaluation. Evaluations are based on a scale from 1 to 5, with 1 being the highest score and 5 being the lowest, and a score of "4" carries the following description: "Below the generally expected performance level for assistants of comparable experience. Quality of work varies and/or improvement necessary in substantive or other areas which should be specified on the evaluation form." ( Id. ¶¶ 27, 31, 32.) Only a month before receiving this low performance score, and before he submitted his letter of complaint, Gordon was told by his supervisor that he was doing a "fine job" and that his supervisor was "very happy" with his work. ( Id. ¶ 33.)

A few months after Gordon received the 2005 performance evaluation, his superiors placed him on an "action plan" for improvement. ( Id. ¶ 34.) Gordon protested, arguing that his low performance score was in retaliation for his letter of complaint, and not an indicator of his actual performance. ( Id. ) In January 2006, Gordon submitted a formal EEOC charge in which he made the same argument, namely, that he was given a low performance score in 2005 because he had complained about the various deficiencies he had observed at MTU. ( Id. ¶ 35.)

Gordon was subsequently transferred from MTU to the Queens Tort Division, another borough unit. In Queens, he obtained favorable verdicts in all three trials for which he was responsible in the space of just three months. ( Id. ¶¶ 36-37.) He was given a score of "2" on his 2006 performance evaluation. A score of "2" carries the description: "Clearly above the generally expected performance level for assistants of comparable experience. Quality of work is consistently very good. Assistant's development is progressing rapidly and continued growth is anticipated." ( Id. ¶¶ 29, 54-55.)

In August 2007, after a year in the Queens Tort Division, Gordon was transferred to the Special Litigation Unit, or "SLU." ( Id. ¶ 38.) SLU is "considered an elite' unit of the Tort Division, and has... been referred to as the Special Forces' of the Tort Division." ( Id. ¶ 39.) It handles "the most serious and complicated injury lawsuits, " "high-exposure cases, " which are "valued at $2 million or above, " lawsuits involving "unusually controversial matters, " and actions that "either present some novel issue of law or involve potential damages above a certain threshold." ( Id. ¶ 40.)

Upon transfer to SLU, Gordon was supervised by Defendant Marc Andes ("Andes"). ( Id. ¶ 42.) Andes had been named in an EEOC complaint for discrimination by Melissa Pressley, another African-American ACC in SLU. ( Id. ¶¶ 43-44.) Pressley left SLU soon after Gordon arrived, allegedly because of racial discrimination and retaliation for reporting discrimination by Andes and others, at which point Gordon became the only African-American ACC of SLU's 42 attorneys. ( Id. ¶¶ 44, 46-47.)

In 2008, while Gordon was still working in SLU, the City Corporation Counsel, (the head of the Law Department), Defendant Michael A. Cardozo ("Cardozo"), announced a change to the Law Department's method of promotion. ( Id. ¶ 51.) Prior to 2008, an attorney at the Law Department was eligible for promotion to the "Senior Counsel Program" after five years as ACC. ( Id. ¶ 50.) With the 2008 amendment, an ACC with only three years of experience was eligible for promotion, so long as that assistant received a "high evaluation score." ( Id. ¶¶ 51-52.) Promotion to the Senior Counsel Program resulted in an immediate pay raise, and a subsequent pay raise the year after promotion. ( Id. ¶ 52.)

An ACC since 2004, Gordon had more than three years of experience at the Law Department by 2008. ( Id. ¶¶ 52-53, 57.) Moreover, he had received an "above average" score of "2" on his 2007 and 2008 performance evaluations. ( Id. ¶ 55.) Nonetheless, Defendant Leoussis, his division chief, did not nominate him for a promotion to the Senior Counsel Program. ( Id. ¶ 57.) In 2009 and 2010, Gordon again received performance scores of "2" on his annual evaluations. But again, in neither of these years was he nominated for the Senior Counsel Program. ( Id. ¶ 58.)

Despite Gordon's failure to be nominated for a promotion, he continued to receive positive feedback from Andes. In 2009, Andes told Gordon that he had nominated him for a "Division Chief's Award, " which is awarded every year to an attorney who has exhibited "exemplary performance on behalf of the City of New York, " but that Leoussis had rejected the nomination. ( Id. ¶¶ 72-73.) Andes told Gordon that he believed Gordon deserved the award because "[m]ost attorneys who are new to SLU only receive one or two cases to start off with, " but Gordon had received "40 cases to start off with and on top of that handled those cases so well." ( Id. ¶ 74.) Andes also told Gordon that he was doing "just as well as any other attorney and in some respects even better than some attorneys who held the title of Senior Counsel." ( Id. ¶ 75 (emphasis omitted).) Andes made similar favorable comparisons and comments to Gordon on other occasions. ( Id. )

At some point between Gordon's 2010 and 2011 evaluations, Andes informed Gordon that Andes' superiors had told him that they thought he had been "grading [Gordon] too high" on performance evaluations. ( Id. ¶ 63.) Gordon subsequently noticed a change in the manner in which Andes treated him. In particular, Andes started "nit picking" his work and "focus[ed] on non-essential aspects" of his "performance and work product." ( Id. ¶ 65.) Gordon confronted Andes, saying, "It appears you are trying to find things wrong with my work." ( Id. ¶ 66.) Andes denied that this was the case, and later told Gordon that his work was "sub-standard." When Gordon asked him, "[W]hat can we do about it to correct it?" Andes responded, "There are some things that you just can't teach some people, " and made no effort to help Gordon correct the deficiencies in his work. ( Id. ¶¶ 67-69.) Instead, he said to Gordon that it might be "more appropriate for [him] to go to a borough unit, " because Gordon was "better at sticking to simple motions... than the complex motions here in SLU." Andes made similar remarks on other occasions that implied that Gordon was not suited to the work at SLU. ( Id. ¶ 71.)

Moreover, prior to completing a performance evaluation, Andes had a practice of meeting with ACCs individually and asking them what accomplishments should be included in their evaluations. ( Id. ¶ 76.) Andes had followed that practice for Gordon's previous evaluations, and for the 2011 evaluations of other ACCs, but did not do so for Gordon's 2011 evaluation. ( Id. ¶ 79.) In the 2011 evaluation, which Gordon received in August of that year, Gordon's performance evaluation score dropped to a "3.5" (from a "2" in 2010). Four Defendants contributed to this evaluation: Andes; Leoussis; and Mark Palomino ("Palomino") and Gayle Sanders ("Sanders"), Unit Chief and Deputy Chief, respectively, of SLU. ( Id. ¶¶ 60-62.)

After Gordon received his 2011 performance evaluation, he took a one-year leave of absence from the Law Department and accepted an offer from the University of Ulsan to teach law in South Korea. ( Id. ¶¶ 80, 84.) While he was in South Korea, he learned that two Caucasian attorneys in SLU had been promoted to Senior Counsel based on their 2011 performance evaluations. ( Id. ¶ 85.) Both attorneys had spent less time in SLU than Gordon, and did not have "any particular outstanding achievements." ( Id. ¶ 88.)

On March 20, 2012, Gordon sent Andes an e-mail with a "draft copy of his detailed objections" to his 2011 performance evaluation to give Andes "an opportunity to explain his actions and or refute [Gordon's] objections." ( Id. ¶ 99.) Andes refused to discuss or review the evaluation. ( Id. )

On May 4, 2012, Gordon filed a complaint of discrimination with the EEOC. ( Id. ¶ 100.) In the complaint, Gordon alleged, inter alia, that his 2011 performance evaluation constituted discrimination on the basis of his race. ( See Dkt. No. 20 ("Rosenbaum Decl.") Ex. A.) The Law Department responded to the charge on August 16, 2012, alleging that Gordon had experienced "performance deficiencies" since the start of his career with the Law Department, and that the 2011 evaluation was the result of those deficiencies and not Gordon's race. (Compl. ¶ 101; Rosenbaum Decl. Ex. B.) The EEOC was unable to conclude that Gordon had established a violation of federal law on the part of the Law Department. (Compl. Ex. A.) Accordingly, the EEOC dismissed Gordon's complaint and issued a right-to-sue letter. ( Id. )

Gordon returned from South Korea in August 2012, at which point he was transferred from SLU back to the allegedly less-prestigious Queens Tort Division. (Compl. ¶¶ 102, 113, 179.) At the request of Leoussis, Gordon was also placed on a "Corrective Action Plan." ( Id. ¶ 103.) This Plan "plac[ed] added burdens on [Gordon] as a condition of continued employment and added the stigma of [Gordon] being an employee in need of corrective action.'" ( Id. ¶ 108.)

In June 2013, after Gordon had spent one year in the Queens Tort Division, the Queens Borough Chief told Gordon that he was "on the top of the list to take a full time trial position." ( Id. ¶ 110.) Subject to the availability of trial attorney positions in the various boroughs, the attorney at the top of the list is allowed to choose the borough in which he would like to litigate. ( Id. ¶ 111.) In July 2013, Leoussis asked Gordon to choose a borough, but gave him the choice of only the Bronx or Brooklyn. These two boroughs, Gordon alleges, are "the less favored boroughs" and also have "the greatest concentration of African-American ACCs in the Torts Division of the Law Department." ( Id. ¶ 112.) Leoussis told Gordon that there were no trial positions open in Queens. ( Id. ¶ 115.) Gordon accepted a trial position in the Bronx, but a few weeks later, a trial position "suddenly" opened up in Queens. ( Id. ¶ 116.) Gordon was not informed of the opening, and the position was given to a Caucasian attorney who was "more towards the bottom" of the trial attorney list than Gordon. ( Id. ¶¶ 116-17.)

Gordon now brings suit, alleging sixteen causes of action. He asserts claims for disparate treatment, disparate impact, retaliation, and hostile work environment under Title VII, § 1981, § 1983, the SHRL, and the CHRL. He also alleges a Monell claim, claims of conspiracy under §§ 1983 and 1985 and failure to prevent conspiracy under § 1986, and a claim of aiding and abetting discrimination under the SHRL. He names as defendants the City of New York, several Doe defendants, and six individuals employed by the Law Department: Leoussis, Palomino, Sanders, Andes, and Cardozo-all discussed above-as well as David Santoro ("Santoro"), the Deputy Chief of the Tort Division during the time period in question. ( Id. ¶ 14). Defendants move to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 18.)

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (internal quotation marks omitted). To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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). "This standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted). "Where 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." Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

In determining whether a plaintiff has pleaded facts sufficient to survive a motion to dismiss, a court will not consider mere conclusory allegations that lack a factual basis. Hayden v. Paterson, 594 F.3d 150, 160-61 (2d Cir. 2010). A plaintiff's complaint "must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed." EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 680) (alterations and internal quotation marks omitted). In assessing the sufficiency of the complaint, a court may consider "any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citations and internal quotation marks omitted). "Integral" documents are those "either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotation marks omitted). In order for a document to be "integral, " however, a plaintiff must actually have relied on its terms and effect in drafting the complaint; "mere possession or notice is not enough." Id.

In the context of employment discrimination claims, a plaintiff need not allege "specific facts establishing a prima facie case" to survive a motion to dismiss. Boykin v. KeyCorp., 521 F.3d 202, 212 (2d Cir. 2008) (citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508 (2002)) (internal quotation marks omitted).[2] However, the complaint must be "facially plausible and allege sufficient facts to give the defendant fair notice of the basis for the claim, " Brown v. Daikin Am., Inc., 756 F.3d 219, 228 n.10 (2d Cir. 2014), and "[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, No. 09 Civ. 5916 (LTS) (KNF), 2011 WL 2565301, at *5 (S.D.N.Y. June 28, 2011). In discrimination cases, the plaintiff's burden at this stage is "very lenient, even de minimis. " Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (internal quotation marks omitted).

Finally, although courts generally "construe a pro se litigant's pleadings and motions liberally, " In re Sims, 534 F.3d 117, 133 (2d Cir. 2008), "the degree of solicitude may be lessened" where pro se parties are trained in law or skilled in litigation, Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010). In fact, "a lawyer representing himself ordinarily receives no such solicitude at all." Id. Here, Gordon asserts that he graduated from New York University Law School in 2004, is "admitted to practice law" in New York State and in this district, and has been employed as an attorney for over ten years. (Compl. ¶¶ 7, 16-19.) Accordingly, the Court does not give Gordon's complaint the same liberal reading that it would give to a complaint by a pro se litigant with no legal training.

III. Discussion[3]

As a preliminary matter, Defendants contend that many of Gordon's claims are timebarred, at least in part. (Dkt. No. 21 ("Def. Memo") at 8-10.) In response, Gordon says that he does not intend to seek relief for the allegations that Defendants identify as time-barred. (Dkt. No. 24 ("Pl. Memo") at 2-3.) Accordingly, to the extent that the Complaint in fact ...

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