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Catapano-Fox v. City of New York

United States District Court, S.D. New York

June 11, 2015

CITY OF NEW YORK, et al., Defendants.



Plaintiff Tracy Catapano-Fox brings this action against the City of New York and against Richard Emery and Bishop Mitchell Taylor in their personal and official capacities (collectively, "Defendants") for termination of her employment at the Civilian Complaint Review Board (the "CCRB") and other alleged retaliation in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17, the New York State Human Rights Law (the "NYSHRL"), N.Y. Exec. Law §§ 290 to 301, the New York City Human Rights Law (the "NYCHRL"), N.Y.C. Admin. Code §§ 8-101 to 8-131, and New York Civil Service Law § 75-b ("Section 75-b"), as well as in breach of her contractual rights under state law. Defendants move to dismiss this action for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons set forth in this Opinion, the motion to dismiss is granted with respect to Plaintiff's Section 1981 and breach of contract claims, granted with respect to Plaintiff's Title VII and Section 75-b claims as against Defendants Emery and Taylor, and denied in all other respects.


A. Factual Background

Plaintiff was employed between June 2013 and October 6, 2014, as Executive Director of the CCRB, which was created to address misconduct by the New York City Police Department (the "NYPD"). (Compl. ¶¶ 1, 2, 14). Plaintiff alleges that, during her employment, she made complaints regarding the sexually inappropriate behavior of Defendant Bishop Taylor, a CCRB board member, and regarding a number of policy decisions or positions taken by Defendant Richard Emery, before being retaliated against and ultimately fired for these ostensibly protected activities.

1. Sexual Harassment and Discrimination Complaints

In March 2014, Plaintiff became aware of an earlier incident between Taylor and a female CCRB employee. (Compl. ¶¶ 18-19). According to the Complaint, the employee explained that Taylor had sexually harassed her; after the employee had reported the incident to Plaintiff's predecessor as Executive Director, the prior Executive Director asked her, "what, you've never been hit on before?" (Id. at ¶¶ 19-20). Marcos Soler, the CCRB's Equal Employment Opportunity ("EEO") Officer, who was present that evening, then told the employee she would be fired if she reported the unlawful conduct. (Id. at ¶ 21). Soler wrote up a report of the incident between Taylor and the employee, based upon his personal observations that evening; the report is dated September 20, 2011, though the report describes events taking place from the evening of September 20, 2011, to the following morning. (Canfield Decl. Ex. C). Plaintiff maintains that the account was written at least a year and a half after the incident, and modified even more recently. (Compl. ¶ 22).

Plaintiff reported the incident to the New York City Law Department and to the New York City Office of Citywide Diversity and Equal Opportunity Employment (the "NYC EEO Department"). (Compl. ¶ 23). She was subsequently interviewed by New York City's Chief EEO and Diversity Officer in April 2014, during which interview she also reported an incident in which Taylor had told a different female CCRB employee, "You're hot stuff, baby." (Id. at ¶ 24). Shortly thereafter, in May 2014, Taylor characterized a citizen complaint by stating in an email, "This is not a strip search case. This is a dick case." (Id. at ¶ 25). This email was forwarded to another female CCRB employee, who complained to Plaintiff; Plaintiff then reported the email to two members of the CCRB Board's executive committee, as well as the NYC EEO Department. (Id. at ¶¶ 26-27). Taylor was not disciplined, and neither the CCRB nor the NYC EEO Department followed up on Plaintiff's complaints. (Id. at ¶¶ 24, 28). Plaintiff subsequently complained on September 10, 2014, to two persons, whose positions are not identified in the Complaint, that "a pattern of negative treatment against women exists at the CCRB." (Id. at ¶ 59).

2. CCRB Procedure and Racial Bias Complaints

In addition to her complaints about Taylor and the CCRB's treatment of its female employees, Plaintiff also had numerous disagreements with Emery and Taylor regarding various policy decisions that Plaintiff believed to be in violation of the CCRB's rules and regulations, and that in her estimation would have a discriminatory impact on minority complainants. Plaintiff made numerous complaints to Emery and the Board about his attempt to have the CCRB stop accepting or substantiating "stop and frisk" complaints; advocated publishing a report on the frequency of "stop and frisk" cases; and objected to the exclusion of "stop and frisk" statistics from the CCRB's 2014 mid-year report. (Compl. ¶¶ 40-43). Plaintiff additionally objected to Emery's failure "to conduct himself in an impartial' and independent' manner with regard to challenging the NYPD" on a number of incidents ( id. at ¶¶ 48-50), and to the publication of inaccurate statistics in various CCRB reports ( id. at ¶¶ 51-54).

Plaintiff also objected to Emery's proposal to have CCRB investigative employees make a determination as to a complainant's credibility before conducting an investigation. (Compl. ¶ 44). According to the Complaint, Emery reasoned that "[a] doctor is much more credible than someone with a criminal history." (Id. at ¶ 45). Plaintiff objected on the grounds that "the proposed method of investigation would have an extremely disparate impact on minorities in New York City, " and notes in her Complaint that two other CCRB employees, both African-American, also complained that the proposed method was discriminatory. (Id. at ¶ 46).

3. Retaliation Against Plaintiff

Plaintiff alleges a number of retaliatory actions taken after her complaints about Taylor's behavior and Emery's proposed and effected policies. With regard to Taylor, Plaintiff alleges that he "became extremely hostile, " to the point that other Board members asked him "to cease his increasingly aggressive behavior towards" Plaintiff. (Compl. ¶ 33). Taylor also falsely accused Plaintiff of improperly promoting a close friend within the CCRB, which promotion Plaintiff maintains was entirely proper. (Id. at ¶ 32). Plaintiff complained of these actions to an official in the New York City Office of the Mayor in June 2014. (Id. at ¶ 34). Plaintiff also alludes to "negative feedback" due to retaliation, but offers no further details. (Id. at ¶ 36).

Plaintiff alleges additional retaliation by Emery with more detail. According to the Complaint, Emery "demanded that Ms. Fox resign or suffer the consequences, ' and threatened to stack the Board' to ensure her termination." (Compl. ¶ 56). Emery also falsely informed the Mayor's office and the Board - on September 9 and September 11, 2014, respectively - that Plaintiff had agreed to leave her position as Executive Director. (Id. at ¶¶ 56, 60). Plaintiff alleges that, in part due to Emery's conduct described in the Complaint, the Board on September 11, 2014, scheduled a September 15 meeting for the purpose of issuing a vote of "no confidence" in Emery. (Id. at ¶ 61). The following day, September 12, 2014, Emery posted Plaintiff's position as Executive Director without her consent. (Id. at ¶ 62). According to the Complaint, on September 14, 2014, Emery misinformed the press that the purpose of the September 15 Board meeting was to terminate Plaintiff, and subsequently cancelled the meeting, citing fabricated concerns over timing. (Id. at ¶¶ 63-64).

On September 26, 2014, Plaintiff sent a letter (Canfield Decl. Ex. G), via counsel, to the CCRB, Emery, the Office of the Mayor, and the Law Department, detailing Plaintiff's concerns, consisting largely of the facts within the Complaint. (Compl. ¶ 68). The Complaint alleges that Emery proceeded to force the resignation of one Board member and arrange the appointment of four new Board members in advance of an October 2, 2014 Board meeting. (Id. at ¶¶ 70-74). On October 3, 2014, the Board demanded Plaintiff's resignation; Plaintiff refused, and on October 6, 2014, was fired. (Id. at ¶ 74).

B. Procedural Background

On October 6, 2014, Plaintiff filed the instant action, alleging retaliation in violation of 42 U.S.C. § 1981, the NYSHRL, the NYCHRL, and NYC Civil Service Law § 75-b; Taylor and Emery's aiding and abetting of retaliation in violation of the NYSHRL and the NYCHRL; and breach of contract. (Dkt. #1). After a conference to discuss Defendants' contemplated motion to dismiss, Plaintiff filed her Amended Complaint on January 9, 2015; among other changes, Plaintiff added a claim of unlawful retaliation under Title VII. (Dkt. #11). Defendants moved to dismiss the Amended Complaint on February 9, 2015. (Dkt. #15). Plaintiff filed her opposition on March 6, 2015 (Dkt. #21), and the briefing was complete upon the filing of Defendants' reply on March 27, 2015 (Dkt. #25).

On request of Plaintiff, the Court allowed discovery to continue during the pendency of the motion to dismiss. (Dkt. #14). The Court addresses certain discovery disputes that have arisen (Dkt. ...

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