United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, District Judge.
Plaintiff Claude Staten ("Plaintiff"), proceeding pro se, has been employed as a police officer by the New York City Police Department ("N.Y.P.D.") for more than two decades. This action is his second before this Court against the City of New York (the "City"), an earlier-filed lawsuit based on similar facts having been dismissed at the summary judgment phase. In this case, Plaintiff sues the City under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act of 1967 ("ADEA"), the New York State Human Rights Law, New York Executive Law §§ 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, New York City Administrative Code 8-101 ("NYCHRL"), alleging that the City violated his civil rights. Specifically, Plaintiff alleges that the N.Y.P.D. subjected him to disparate treatment and a hostile work environment, and retaliated against him when he sought legal recourse. The City now moves to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, that motion is GRANTED.
A. Factual Background
Plaintiff is a fifty-year-old Black-Hispanic male. Am. Compl. at 3-5 (Doc. 11). He was first hired by the N.Y.P.D. as a police officer in 1986. Id. Since then, Plaintiff has taken the department's exam for promotion to the rank of sergeant three times, but has never been promoted. Id. ¶ 39.
First, in or around September 1988, Plaintiff took Civil Service Examination No. 6681 ("Exam No. 6681"); he received notice in 1989 that he had failed. Id. ¶¶ 11-16. However, Plaintiff alleges that years later, in 2013, he learned that he had actually scored above the minimum score of 70%. Id., Ex. A at 4, B at 5. Next, in March 2010, Plaintiff took and passed Civil Service Examination No. 8564 ("Exam No. 8564"). Id., Ex. I at 10. Nevertheless, he asserts, he was thereafter overlooked for eight separate vacancies while the list of passing candidates eligible for a promotion to the rank of sergeant remained active. Id. ¶¶ 28-29. Most recently, in April 2012, Plaintiff passed Civil Service Examination No. 1533 ("Exam No. 1533") but again was overlooked as the N.Y.P.D. filled at least three separate vacancies. Id., Ex. J at 11, X at 38. Following that exam, on June 28, 2013, Plaintiff was informed that under the Rules of the City Personnel Director, he would be ineligible for further consideration for promotion under the corresponding candidate list, because he had already been considered and not selected for three separate vacancies. Id., Ex. X at 38; see also 55 R.C.N.Y. App. A. § VII, R. 4.7.4 (2014) (stating that "[f]or appointment to the position of police officer..., no name certified three times to one agency head shall be certified to another unless at such agency head's request."). Despite this, Plaintiff asserts that he remains a viable candidate for promotion under the Exam No. 1533 list,  and yet has been overlooked for fourteen vacancies since the filing of his Amended Complaint. Am. Compl. ¶¶ 37-39. Moreover, because Plaintiff was then being subjected to performance monitoring, he was required to appear before the N.Y.P.D.'s Career Advancement Review Board ("CARB") on four separate instances between 2011 and 2014 for review of his eligibility for promotion; he has been denied promotion each time. Id. ¶ 39; Def.'s Mem. L. Supp. Mot. To Dismiss at 6.
Plaintiff concedes that on November 1, 2013, a ranking officer, Lieutenant Ferris, informed Plaintiff that he would have been promoted to sergeant from the list of candidates who passed Exam. No. 8564 if he had made more arrests. Am. Compl. ¶ 118. Moreover, Plaintiff states that, on April 24, 2014, his precinct's Commanding Officer, Deputy Inspector Christopher McCormack, informed him that a failure to write more "moving violation" summonses before his next interview with the CARB could hurt his chances at promotion. Id. ¶ 119.
Despite these explanations, Plaintiff believes that the N.Y.P.D. failed to promote him not as a result of his job performance but instead on grounds of racial and age discrimination. Id. ¶ 1. He further contends that the City, through the N.Y.P.D., created a hostile work environment and took actions to retaliate against him. Id. In support of these claims, Plaintiff makes the following allegations.
On January 17, 2000, a fellow police officer, John McGlocklin made a racially disparaging joke about African-American prisoners to another officer in Plaintiff's presence. Id. ¶ 96. In the same vein, Plaintiff alleges that during the summer of 2006, Captain Donald McHugh referred to him in derogatory terms, comparing him to female genitalia. Id. ¶¶ 142-44. Plaintiff also alleges that on February 19, 2006, he overheard police officer Gregory Manning refer to him as a "nigger." Id. ¶ 63. Plaintiff asserts that his efforts to seek relief through both the P.B.A. and the N.Y.P.D.'s Office of Equal Employment Opportunity ("O.E.E.O.") between 2006 and 2007 were ineffective. Id. ¶¶ 65-85. He claims that he attempted to file complaints with both offices against Officer Manning and his then-Commanding Officer, Deputy Inspector Kevin Harrington, who he believed was trying to thwart his career advancement. See id. ¶ 75. Though logically circular, Plaintiff claims that the P.B.A. and the O.E.E.O. refused to assist Plaintiff in retaliation because he tried to file a complaint with them. See id. ¶ 84. He also claims that he did not receive his Patrolmen's Benevolent Association ("P.B.A.") cards between 2009 through 2012 because of Manning's influence with the union. Id. ¶¶ 60-64.
Furthermore, Plaintiff alleges that in or about August 2006, Captain McHugh told Plaintiff over the phone that McHugh would force him to retire. Id. ¶ 124. Plaintiff further alleges that, on August 17, 2006, Officer James Lisa told him that Deputy Inspector Harrington wanted him to retire. Id. ¶ 125. Plaintiff also claims that his co-workers belittle him and tell him that he is too old to be promoted, but does not offer any specific examples of such remarks. Id. ¶ 128. During that same month, Plaintiff also claims that the N.Y.P.D. violated his Second Amendment rights by withholding his firearms from him for non-disciplinary reasons. Id. ¶¶ 105-17. See also Id., Ex. Based on these events, Plaintiff believes that Defendant refuses to promote him in the hopes that Plaintiff will retire out of "embarrassment" or "frustration." Id. ¶ 129.
On October 15, 2009, Plaintiff was charged with violating N.Y.P.D. department regulations by: (1) failing to properly submit issued summonses; (2) failing to properly secure his locker, where he had stored the summonses; and (3) failing to appear in Traffic Court for testimony. Id., Ex. N at 17-19. Plaintiff alleges that Officer Lisa, a white male, entered his locker without his consent, stole Plaintiff's issued summonses,  and left a note in order to prevent him from processing the summonses. Id., Ex. H at 9, M at 16, N at 18-19. However, an internal investigation report states that, although Officer Lisa entered Plaintiff's locker without permission and left the note, Lisa did not remove the summonses, which were subsequently found by the precinct's Integrity Control Officer in Plaintiff's locker. Id., Ex. N at 18-19.
Plaintiff also claims that Defendant failed to recognize his "acts of bravery and heroics" when he was involved in two shooting incidents in 1996 and 2000, but has recognized and given preferential treatment to white officers involved in similar shooting incidents, such as by awarding them special assignments. Id. ¶¶ 145-58, 188-96, Ex. F at 6-7, G at 8. Conversely, Plaintiff insinuates, Defendant has given him assignments unbefitting of his seniority. See id. ¶¶ 93-94.
Plaintiff draws further comparisons between his own experience and the experiences of three white officers who were promoted to become sergeants based on Exam No. 8564 and Exam No. 1533 despite their tarnished disciplinary records. See id. ¶¶ 31-33, 165-74, Ex. L at 13-15. Specifically, he claims that in July 2011, Officer Stephen Wheeler, who scored lower than Plaintiff on Exam No. 8564, was promoted to Sergeant despite having been arrested and subject to disciplinary charges in 2006. Id. ¶¶ 31-33. Plaintiff also points to Officers Elana Stojanovski and Thomas Kurilenko, both of whom were promoted despite scoring lower than Plaintiff on Exam No. 1533. Id. ¶¶ 165-74. Plaintiff claims that Stojanovski had been previously disciplined for fighting with another officer while on duty and also received no disciplinary charges after the N.Y.P.D.'s Absence Control Unit discovered that she was out of the country while on sick leave. Id. ¶¶ 165-68. Plaintiff alleges that Kurilenko was previously arrested for a bar-related incident while off-duty. Id. ¶ 170. In addition to his own experience, Plaintiff compares the treatment of these white officers with the experiences of other minority officers, who were also subjected to racial or religious discrimination. See id. ¶¶ 87-92, 175-87, 227-31.
Plaintiff next claims that in 2006, Defendant conspired with Deputy Davis and Lieutenant Boyd of the Sullivan County Sheriff's Department to implicate him in a domestic dispute between Plaintiff's girlfriend and his common law wife. Id. ¶¶ 235-48. He also claims that seven years later, in furtherance of this alleged conspiracy, in August 2013, Deputy Davis, who is now employed by the Monticello Police Department, ordered a subordinate to issue Plaintiff's wife a speeding summons in retaliation. Id. ¶¶ 249-57. Plaintiff further alleges that on December 5, 2013, the Monticello Police Department harassed his wife by stopping her car because she was black. Id. ¶¶ 256-57.
Additionally, Plaintiff asserts that in January 2011, Defendant intercepted and withheld a notification requesting his presence at a training course for sergeant candidates for those who passed Exam No. 8564, in a deliberate attempt to stymie his career advancement. See id. ¶¶ 97-101. See also id., Ex. P at 26. He also claims that in September and October 2013, Defendant conducted a verification of his compliance with the N.Y.P.D.'s residency requirement as a pretense to harass him. See id. ¶¶ 130-40, Ex. V at 34-36.
In the last of his allegations, Plaintiff claims that his supervisor, Lieutenant Schelberger, discriminated and retaliated against him based on his race by placing him in dangerous situations-specifically, by ordering him to exit his patrol car in a dangerous section of the Bronx on June 20 and July 20, 2014, and by ordering him and his partner to transport a female prisoner while in the presence of a hostile crowd on July 12, 2014. Id. ¶¶ 197-217. Moreover, Plaintiff claims that he has been assigned to the barrier section in Long Island City, Queens at least twice per month since September 2014 as "retaliation for being Black-Hispanic, " because the work involves manual labor and is located far from his residence. Id. ¶¶ 218-22. Finally, Plaintiff alleges that Defendant has failed to provide him with a new bullet proof vest since 2003, despite providing other officers with new police vests at no cost. Id. ¶¶ 223-26.
B. Procedural History
Plaintiff first filed suit in this Court on May 3, 2012 ( Staten I ) pursuant to 42 U.S.C. §§ 1981 and 1983, the NYSHRL, and the NYCHRL. Compl. at 1-2, Staten I, 2014 WL 3907926 (No. 12 Civ. 3544). This Court dismissed Staten I on August 7, 2014, following Defendant's motion for summary judgment. In the instant action, Plaintiff raises new allegations, along with those initially raised in Staten I, to support his claims under Title VII, the ADEA, the NYSHRL, and the NYCHRL.
Prior to commencing the instant action, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on December 13, 2013. Pl.'s Opp'n to Def.'s Mot. To Dismiss (Doc. 17), Ex. ZG. However, unable to substantiate Plaintiff's claims, the EEOC closed its file on May 29, 2014 and issued him a Notice of Right to Sue letter. Am. Compl. at 8.
Plaintiff filed the instant action on June 16, 2014. Compl. at 1 (Doc. 1). Liberally construed, Plaintiff's Amended Complaint asserts six claims: (1) Defendant's failure to promote him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (2) Defendant's failure to promote him in violation of the Age Discrimination in Employment Act of 1967; (3) creation of a hostile work environment; (4) retaliation; (5) race and age discrimination in violation of the New York State Human Rights Law; and (6) race and age discrimination in violation of the New York City Human Rights Law. Id. ¶¶ 1-4.
II. Relevant Legal Standards
A. 12(b)(6) Motion to Dismiss Standard
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff's favor. Walker, 717 F.3d at 124. However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to satisfy the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support its claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted unlawfully." Id. "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." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
Though a plaintiff may plead facts alleged upon information and belief "where the belief is based on factual information that makes the inference of culpability plausible, " Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), such allegations must be "accompanied by a statement of the facts upon which the belief is founded.'" Prince v. Madison Square Garden, 427 F.Supp.2d 372, 385 (S.D.N.Y. 2006) (citation omitted); see also Williams v. Calderoni, No. 11 Civ. 3020 (CM), 2012 WL 691832, at *7 (S.D.N.Y. Mar. 1, 2012) (finding pleadings based upon information and belief ...