United States District Court, S.D. New York
OPINION & ORDER
M. WOOD, District Judge
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.
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.
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.
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.
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.
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.
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.
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.
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.
Plaintiff did not settle his grievance. Am. Compl. ¶ 82.
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.
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.
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
Count I: ...