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Boonmalert v. City of New York

United States District Court, S.D. New York

April 12, 2017

CITY OF NEW YORK; ANDREW SCHWARTZ; SOCIAL SERVICES UNION, LOCAL 371; and JOHN and JANE DOE said names being fictitious, the persons intended being those who aided and abetted the unlawful conduct of the named Defendants, Defendants.

          OPINION & ORDER

          KIMBA M. WOOD, District Judge

         On June 3, 2016, Boonsakdi Boonmalert filed this action pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 42 U.S.C. §§ 1983 and 1985, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"), claiming discrimination, retaliation, and a hostile work environment on the basis of his age. The City of New York and Andrew Schwartz (the "City Defendants") move to dismiss Plaintiffs amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the City Defendants' motion to dismiss is GRANTED.

         I. BACKGROUND [1]

         Plaintiff, who was 69 years old at the time the amended complaint was filed, Am. Compl. ¶ 9, ECF No. 21, has been employed by the City of New York since April 2001, id. ¶ 10. Since 2003, he has worked as an associate contract specialist in the New York City Department of Small Business Services ("SBS"). Id. ¶ 12. Plaintiff has always received at least satisfactory job evaluations, id. ¶ 24, and has never been formally disciplined, id. ¶ 25. During the relevant time periods, Schwartz was either the First Deputy Commissioner, Acting Commissioner, or Deputy Commissioner for Legal Affairs of SBS, and was accordingly an indirect supervisor of Plaintiff. Id. ¶ 20.

         Plaintiff alleges that there are three other associate contract specialists-whose names, ages, civil service levels, education levels, and lengths of employment are not included in the amended complaint-who work under the same supervisors as Plaintiff, have less experience and are younger than Plaintiff, and yet were paid more money than he was. Id. ¶¶ 26-27.

         In 2012, Plaintiff turned 65, at which point City Defendants began to ask him about retirement, reminded him that he could retire, and encouraged him to retire. Id. ¶ 28, 35-37. In one instance, Schwartz directed the Executive Director of Human Resources, Myrna Mateo, to submit Plaintiffs paperwork to the New York City Employee Retirement System ("NYCERS"). Id. ¶¶ 38-39. Mateo submitted the paperwork to Schwartz for review, but Plaintiff went to Mateo's office to stop the process. Id. ¶¶ 40-41.

         In September 2012, City Defendants moved Plaintiff from the Budget Review Unit ("BRU") to the Workforce Development Division Unit ("WDDU"). Id. ¶ 29. The WDDU position was in a more remote and less prestigious part of SBS, and the work was "out of his civil service title." Id. ¶ 30. In addition, Plaintiff continued to work on BRU matters, resulting in his being "required to simultaneously perform the functions of two separate full time staff persons" without additional compensation. Id. These additional tasks, without additional support or resources, were designed to set Plaintiff up to fail, and he experienced stress, insomnia, and panic attacks. Id. ¶¶ 31-32.

         In June and July 2013, Plaintiff and a colleague, Kevin Ying, filed grievances against SBS with the Office of Collective Bargaining. Id. ¶ 48. The two grievances were consolidated, and the Social Services Union, Local 371 ("Local 371") represented both individuals through attorney Gary Maitland. Id. ¶¶ 50, 52. Ying has the same civil service and office title as Plaintiff, id. ¶ 69, and has less education and professional experience than Plaintiff, id. ¶ 70, but was in his 40s, id. ¶ 67. Throughout the grievance process, Schwartz would suggest that Plaintiff retire, and suggested that Plaintiffs refusal would deprive Ying of the raise that he needed to support his family. Id. ¶ 55. Schwartz also conveyed to Maitland that Plaintiff intended to retire, id. ¶ 56, and Maitland began to insist that Plaintiff retire as a condition of resolving his grievances against SBS, id. ¶ 57.

         Hearings on these grievances were held on November 12, 2014, and February 12, 2015. Id. ¶ 49. On March 12, 2015, Plaintiff was presented with a proposed settlement agreement, which was drafted by Local 371 and Schwartz. Id. ¶¶ 58-59. The proposed settlement agreement stated that Plaintiff would receive an eight percent higher rate of pay until December 31, 2015, at which point Plaintiffs pay would revert to the original, lower amount if he did not retire. Id. ¶¶ 60, 62.

         In June 2015, Maitland received an offer from SBS in which Boonmalert and Ying would each receive a "one-time lump sum payment that represents the 12% raise for the period 7/9/13 (date the grievance was filed) to 12/31/15 to resolve the grievance for this period." Renaghan Decl. Ex. C, ECF No. 28.[2] The offer stated that "SBS is still calculating the lump sum, but indicated it would probably come out to around $17, 000. After 12/31/15, they are, of course, free to refile their grievance." Id. Ying appears to have accepted this offer. His signed settlement agreement states that Ying would receive a lump sum of $18, 383 to resolve the grievance for the period of July 9, 2013 through December 31, 2015, and does not include a prospective salary increase. Id. ¶ 82; see Reneghan Decl. Ex. D.[3] Plaintiff did not settle his grievance. Am. Compl. ¶ 82.

         Finally, Plaintiff filed charges with the Equal Employment Opportunity Commission ("EEOC") on May 20, 2015 and June 8, 2015. Id. ¶¶ 7, 80. In the June 8, 2015 complaint, Plaintiff alleges that the City Defendants were "pushing me to retire when I am not ready to do so. In addition, I am being penalized by forcing me to sign the agreement agreeing to retire by December 31, 2015 otherwise I will forfeit the 8% increase." Renaghan Decl. Ex. A. The EEOC issued right-to-sue notices on March 2 and March 31, 2016. Am. Compl. ¶ 7; see Renaghan Decl. Ex. B.[4]

         The amended complaint states seven claims for relief: (1) age discrimination in violation of the ADEA, § 1983, NYSHRL, and NYCHRL; (2) retaliation in violation of the ADEA, § 1983, NYSHRL, and NYCHRL; (3) hostile work environment in violation of the ADEA, § 1983, NYSHRL, and NYCHRL; (4) conspiracy in violation of § 1985; (5) Monell liability under § 1983; (6) breach of duty of fair representation in violation of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185; and (7) aiding, abetting, and inciting in violation of NYSHRL and NYCHRL. Am. Compl. ¶¶ 86-122. Plaintiff has withdrawn his conspiracy claim. PL Opp. 19-20, ECF No. 34. Plaintiffs LMRA claim is against only Local 371, which has not appeared in this action. Accordingly, the Court addresses neither the fourth nor sixth causes of action in this opinion.


         In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient factual allegations "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 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78 (2d Cir. 2015).


         A. Count I: ...

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