United States District Court, S.D. New York
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
Luis Feliciano, a Lieutenant employed by the New York City Sheriff's Department (the "Department"), brings this employment discrimination suit against the City of New York (the "City") and several officials. The lawsuit arises out of the Department's decision, in November 2012, not to promote Feliciano to Under-Sheriff. Feliciano claims a discriminatory failure to promote, a hostile work environment, and retaliation, the last claim based partly on Feliciano's having previously brought discrimination lawsuits against the City. He brings these claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. ("NYCHRL"), He also alleges violations of his Fourteenth Amendment rights under 42 U.S.C. §§ 1981 and 1983, and of his First and Fifth Amendment rights under 42 U.S.C. § 1983.
Defendants now move to dismiss Feliciano's Amended Complaint. For the reasons set forth below, with respect to Feliciano's claims brought against the City under Title VII, the NYSHRL, and the NYCHRL, the Court dismisses the hostile work environment claim, denies the motion to dismiss the discriminatory failure to promote claim, and narrows but does not dismiss the retaliation claim. The Court dismisses all claims brought under §§ 1981 and 1983 against the City and against the individual defendants.
1. The Parties
Feliciano, a Hispanic man, has worked for the City since 1993. Dkt. 18 ("Am. Compl."), ¶¶ 16-17. Since 2001, he has been employed as a Lieutenant in the Sheriff's Department, which is the office primarily responsible for civil law enforcement in New York City. Id. ¶ 20. He holds a bachelor's degree and a juris doctor. Id. ¶ 56. Feliciano has a clean disciplinary record and extensive experience in multiple positions within the Department, where he is the second-most senior Lieutenant. Id. ¶¶ 33, 45. Before the November 2012 decision not to promote him that forms the basis of this lawsuit, Feliciano had sued the City for discrimination twice - in 2006 and 2009. Id. ¶¶ 23, 34. Those lawsuits settled - in 2007 and 2010, respectively. Id.
Defendants are the City of New York and five employees, whom Feliciano sues in their individual and official capacities: Joseph Fucito, Edgar Domenech, Paul Mulqueen, David Frankel, and Peter Sammarco. Id. ¶¶ 5-11. Fucito and Domenech each served as Sheriff of the Department at different relevant times. Id. ¶¶ 8, 10. Mulqueen is an Under-Sheriff. Id. ¶ 9. Frankel is the Commissioner of the New York City Department of Finance, id. ¶ 7, to which the Department reports. Id. ¶ 4. Sammarco is the Chief of Staff of the Department; he serves as a panelist when candidates interview for positions in the Department. Id. ¶ 42.
2. Feliciano's 2006 and 2009 Discrimination Lawsuits Against the City
Because Feliciano's claims include that he was retaliated against for bringing two previous lawsuits against the City, id. ¶ 37, the Court briefly recaps those lawsuits.
In 2006, Feliciano was one of several plaintiffs who sued, claiming race discrimination and retaliation by the City and the Department between 2001 and 2005. Id. ¶ 23. This lawsuit settled in 2007. Id. In 2009, Feliciano sued individually, claiming race discrimination, retaliation, and hostile work environment, based on the Department's failure to promote him to Under-Sheriff in 2008. Id. ¶¶ 27-34. Feliciano there alleged that the Sheriff had deliberately changed the method of selection halfway through the promotion process so as to undermine him. Id. ¶ 28. That lawsuit settled in 2010. Id. ¶ 34.
3. Feliciano's Failure in 2012 to Obtain a Promotion
In November 2012, an opening became available in the Department for the position of Under-Sheriff. Id. ¶ 38. Feliciano applied for the position. Two candidates were selected to be interviewed: Mulqueen, who is white, and Julio Lopez, who is Hispanic. Id. ¶ 40. Both candidates were less experienced than Feliciano. Id. ¶ 43. Mulqueen had been a Lieutenant for two years; Lopez was still in his probationary period as a Lieutenant. Id. ¶¶ 47, 52. In December 2012, following his interview, Mulqueen was hired for the position. Id. ¶ 53. Feliciano's disciplinary record is superior to Mulqueen's; Mulqueen was once disciplined for improperly supervising a Deputy Sheriff who had mismanaged a real estate sale, id. ¶ 47. Feliciano is also more educated than Mulqueen, who does not hold a college degree, id. ¶ 56.
After being passed over for promotion, Feliciano complained to Fucito, who then served as Sheriff. Id. ¶ 8. In response, Fucito told Feliciano that "if you were selected for an interview people would think it is because you brought two lawsuits." Id. ¶ 60.
In early 2013, Feliciano was transferred to the Bronx. Id. ¶ 62.
4. Mulqueen's Supervision of Feliciano and Alleged Retaliatory Acts
Mulqueen was, "at all times, " Feliciano's supervisor. Id. ¶ 9. After he was promoted to Under-Sheriff, Mulqueen changed the procedure by which the Department processed orders of protection that it received. Id. ¶ 67. Previously, orders had been processed as they came in, and only orders that could be served within 24 hours were to be served "ASAP"; after his promotion, Mulqueen directed that all incoming orders be served "ASAP." Id. Feliciano was repeatedly criticized for failing to prioritize incoming orders as Mulqueen had ordered, and this undermined him in supervising his own subordinates. Id.
Mulqueen also twice prevented Feliciano from earning overtime. First, on the Monday after Mulqueen learned that Feliciano had filed a complaint about the 2012 promotion process with the Equal Employment Opportunity Commission ("EEOC"), Mulqueen came to the Sheriff's office and stated that "there was no need for [Feliciano] to be there"; this prevented Feliciano from earning overtime that day. Id. ¶ 64. Second, on another unspecified occasion, Mulqueen adjusted Feliciano's schedule to an eight-hour shift, preventing him from earning overtime that day. Id. ¶ 66.
B. Procedural History
On August 26, 2013, Feliciano filed a charge with the EEOC. Id. ¶ 14. On May 20, 2014, Feliciano received a right-to-sue notice from the EEOC. Id. ¶ 15. On August 20, 2014, Feliciano filed his original complaint. Dkt. 1. On October 17, 2014, defendants moved to dismiss. Dkt. 13. On November 7, 2014, Feliciano filed an Amended Complaint, which is the operative complaint here. Dkt. 18.
On November 28, 2014, the defendants moved to dismiss the Amended Complaint, Dkt. 28, and submitted a supporting brief, Dkt. 29 ("Def. Br."). On December 12, 2014, Feliciano filed a brief in opposition. Dkt. 34 ("Pl. Br."). On December 19, 2014, the defendants submitted a reply brief. Dkt. 35 ("Def. Reply Br."). On June 3, 2015, the Court held argument.
II. Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), 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). A complaint is properly dismissed where, as a matter of law, "the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558.
In considering a motion to dismiss, a court must accept as true all factual allegations in the complaint, and draw all inferences in the plaintiff's favor. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006); see also Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "[R]ather, the complaint's factual allegations must be enough to raise a right to relief above the speculative level, i.e., enough to make the claim plausible." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citing Twombly, 550 U.S. at 555, 570) (internal quotation marks omitted) (emphasis in Arista Records ).
To survive a motion to dismiss, "a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Twombly, 550 U.S. at 569 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002)). Nevertheless, the elements of a prima facie case "provide an outline of what is necessary to render [a plaintiff's employment discrimination] 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).
Feliciano brings failure to promote, retaliation, and hostile work environment claims against the City under Title VII, the NYSHRL, and the NYCHRL. The Court addresses the claims in that sequence. Feliciano also brings constitutional claims under both 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The Court addresses those claims as brought first against the individual defendants, and then against the City.
The Court analyzes the claims under Title VII and the NYSHRL together, because the standards for liability under these statutes are the same. The NYCHRL standard, however, is lower than the federal standard, see, e.g., Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109-10 (2d Cir. 2013); therefore, to the extent a particular allegation states a claim under federal law, the parallel claim under the NYCHRL also necessarily states a claim. Where, however, a Title VII claim ...