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Lewis v. Roosevelt Island Operating Corporation

United States District Court, S.D. New York

March 28, 2017

DONALD LEWIS, Plaintiff,


          ANDREW L. CARTER, JR., United States District Judge

         Plaintiff Donald Lewis brings this suit against Defendants Roosevelt Island Operating Corporation and certain of its executives and members of its Board of Directors. He alleges that he was subject to discrimination on the basis of his race and gender, and that his employment was terminated for retaliatory reasons in violation of Title VII, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; the New York State Human Rights Law; the New York City Human Rights Law; and New York common law. Defendants have moved to dismiss the Complaint in its entirety pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants' motion is granted in part and denied in part.


         I. Factual Background

         The following facts are taken from the allegations contained in the Complaint, and are presumed to be true for purposes of this motion to dismiss. ECF No. 4 ("Compl.").

         Plaintiff, an African-American man, served as Defendant Roosevelt Island Operating Corporation's ("RIOC") Vice President and General Counsel from October 31, 2011 through April 24, 2015. Compl. ¶¶ 15, 33. He also served as the Acting President and Chief Executive Officer from September 2012 to May 2013, and briefly fulfilled the duties of the Vice President of Operations. Id. ¶ 33. Plaintiff consistently received positive reviews and was given a performance-based salary increase two weeks prior to his employment termination. Id. ¶¶ 34-35.

         Plaintiff explains that things began to change in May 2013 when RIOC hired Charlene Indelicato as its new President and Chief Executive Officer. Id. ¶¶ 17, 61. Indelicato, a white woman, was the subject of two prior discrimination lawsuits resulting from her previous employment, at least one of which was the subject of media coverage. Id. ¶¶ 61-62. Plaintiff alleges that Indelicato continued the same course of behavior at RIOC. He alleges that Indelicato, together with Frances Walton, whom Indelicato brought in as RIOC's Chief Financial Officer, and Claudia McDade, RIOC's Director of Human Resources, created an environment that was hostile to RIOC's male and black employees, including Plaintiff. Id. ¶¶ 18-19, 63.

         In particular, contrary to her behavior towards white and female employees, Indelicato frequently would "yell scream and curse" at Plaintiff when he asked "legitimate questions" and subject him to the silent treatment for days at a time. Id. ¶¶ 73-75, 99. Indelicato further made Plaintiff s job challenging or impossible by refusing to provide additional staffing in the legal department, cutting the legal department's budget, excluding Plaintiff from meetings, and keeping important information from him. Id. ¶¶ 77, 97-98, 100-01. She also made comments regarding "(i) Plaintiffs skin color/complexion; (ii) Blacks and Caribbeans; and (iii) behaviors of 'ethnic people, '" including offensive comments about other black RIOC employees. Id. ¶¶ 75, 78. Apparently taking their cues from Indelicato, Walton and McDade also made numerous offensive comments about black RIOC employees and black people, in general. Id. ¶¶ 79-81.

         Plaintiff alleges that, in March and April of 2015, he raised concerns with certain members of the RIOC Board of Directors regarding Indelicato and the discriminatory and hostile work environment she created as well as her "questionable" salary activity. Id. ¶¶ 55, 88-89. During the relevant time period, the RIOC Board consisted of Michael Shinozaki, Howard Polivy, Margaret Smith, David Kraut, Katherine Teets Grimm, Fay Freyer Christian, Darryl Towns, and Mary Beth Labate (together, the "Director Defendants, " and with Indelicato, McDade, and Wade, the "Individual Defendants"). Id. ¶¶ 21-29.

         Indelicato became aware of Plaintiff s complaints to the Board and terminated Plaintiffs employment shortly thereafter. Id. ¶¶ 38, 56. Plaintiff alleges that he received an email from Indelicato on April 24, 2015 falsely stating that the Board had decided to ask him to resign and giving him three hours to do so or face termination. Id. ¶¶ 41, 45. After receiving this email from Indelicato, Plaintiff contacted the Director Defendants, all of whom expressed surprise and concern that his employment had been terminated and stated that the Board had not been involved in the decision. Id. ¶¶ 42-44, 48-50. Plaintiff contends that, under the RIOC bylaws, he could only be terminated by a vote of the majority of the Board. Id. ¶ 39. Nevertheless, none of the Director Defendants took any steps to undo Indelicato's action. Id. ¶¶ 47, 52-53, 112-15. Plaintiff was replaced as General Counsel by a white woman. Id. ¶ 65. As a result of Plaintiff s termination and Indelicato's other employment decisions, RIOC's "Main Office" has become considerably more female and white. Id. ¶¶ 67-70.

         After his termination, counsel for Defendants admitted that Plaintiffs termination had been retaliatory. Id. ¶ 57. Moreover, McDade-and perhaps others-"disseminated malicious pre-textual fabrications concerning Plaintiff and his tenure at RIOC, " and Defendants conspicuously changed the lock on his office door, leading to the impression that Plaintiff had engaged in some sort of wrongdoing. Id. ¶¶ 58-60. Defendants also denied Plaintiff an exit interview and a severance package. Id. ¶¶ 53, 91.

         II. Procedural Background

         Plaintiff filed his complaint on May 4, 2016. ECF No. 4. In it, he alleges thirteen causes of action. Plaintiff alleges that he was subject to race and gender discrimination, a hostile work environment, and retaliation in violation of Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). He further alleges that all Defendants other than RIOC are liable for aiding and abetting these violations contrary to the NYCHRL, and that RIOC and the Director Defendants are liable for negligent hiring, screening, supervision, and training.

         Defendants moved to dismiss the Complaint. ECF Nos. 56 ("Defs' Motion"), 57 ("Defs' Memo."). In their motion, they argue that all of the claims, except for those under Title VII, must be dismissed against RIOC and the Individual Defendants in their official capacities under the doctrine of sovereign immunity. They further argue that many of Plaintiffs causes of action fail to state a claim. Finally, they argue that the claims against the Individual Defendants in their individual capacities should be dismissed because they are subject to qualified immunity and because the Complaint otherwise fails to allege that they were personally involved in the alleged violations of Plaintiff s rights. Plaintiff filed his opposition to the motion and Defendants submitted a reply. ECF No. 73 ("Pi's Memo."); ECF No. 80 ("Defs' Reply"). Accordingly, the Court considers the motion fully submitted.


         I. Rule 12(b)(1)

         "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

         when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). When challenged, a plaintiff must prove by a preponderance of the evidence that subject matter jurisdiction exists. Id. A court considering a motion to dismiss for lack of subject matter jurisdiction construes all ambiguities and draws all reasonable inferences in favor of the plaintiff. Id. However, unlike with a Rule 12(b)(6) motion, when considering a Rule 12(b)(1) motion, "a district court. . . may refer to evidence outside the pleadings." Id.

         II. Rule 12(b)(6)

         To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible "when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully, " and accordingly, where the plaintiff alleges 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).

         In considering a motion to dismiss, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiffs favor. See Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). However, the court need not credit "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Instead, the complaint must provide factual allegations sufficient "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555).


         I. ...

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