United States District Court, S.D. New York
OPINION AND ORDER
L. CARTER, JR., United States District Judge
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
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.").
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.
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.
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.
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.
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.
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.
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.
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.
case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1)
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."
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.
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