United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. Koeltl United States District Judge.
plaintiff Claude Staten, an officer with the New York City
Police Department (“N.Y.P.D”), brought this
employment discrimination action against the City of New York
(“the City”) alleging various causes of action
under federal, state, and local law. This suit --
Staten's third federal litigation against the City --
includes claims under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e
et seq., the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. §§ 621 et
seq., the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. L. §§ 290 et
seq., and the New York City Human Rights Law
(“NYCHRL”), N.Y.C. Admin. Code §8-101 et
seq. In particular, the plaintiff alleges that the City
has impeded his advancement within the N.Y.P.D. because of
the plaintiff's age, race, and color. He also alleges
that he was subjected to a hostile work environment and that
the N.Y.P.D. retaliated against him. The City now moves to
dismiss the complaint in its entirety pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, arguing
that the claims are subject to claim preclusion, that many of
the claims are time-barred, and that the Complaint otherwise
fails to state a plausible claim for relief. For the reasons
set forth below, the motion is granted.
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's
favor. McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007). The Court's function on a
motion to dismiss is “not to weigh the evidence that
might be presented at a trial but merely to determine whether
the complaint itself is legally sufficient.”
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts 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 has facial plausibility 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). While the Court should construe the factual
allegations in the light most favorable to the plaintiff,
“the tenet that a court must accept as true all of the
allegations contained in the complaint is inapplicable to
legal conclusions.” Id.
presented with a motion to dismiss pursuant to Rule 12(b)(6),
the Court may consider documents that are referenced in the
complaint, documents that the plaintiff relied on in bringing
suit and that are either in the plaintiff's possession or
that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. Villar v. Ramos,
2015 WL 3473413, at *1 (S.D.N.Y. June 2, 2015).
faced with a pro se complaint, the Court must “construe
[the] complaint liberally and interpret it to raise the
strongest arguments that it suggests.” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal
quotation marks omitted). “Even in a pro se case,
however, . . . threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.” Id. (internal quotation marks
omitted). Thus, although the Court is “obligated to
draw the most favorable inferences” that the complaint
supports, it “cannot invent factual allegations that
[the plaintiff] has not pled.” Id.
purposes of the motion to dismiss, the Court accepts as true
the factual allegations in the Complaint.
plaintiff, a fifty-two year-old Black-Hispanic male, has been
employed by the N.Y.P.D for over thirty years. Amended
Complaint (“Compl.”), ECF No. 13, p. 3; Compl.
Ex. 2 p. 3, ECF No. 13-2. Three years into his tenure as an
officer, the plaintiff took his first promotional exam in
order to seek eligibility for promotion to the rank of
sergeant. Compl. p. 33. Although the plaintiff allegedly
passed the exam, he was told that he had failed and was
therefore not put on the list of individuals eligible for
promotion at that time. Id. More than ten years
later, in 2011, the plaintiff sat for and passed Exam Number
1533 for promotion to the rank of sergeant. Compl. ¶ 1.
As a result, the plaintiff received a “list
number” placing him among a pool of individuals
eligible to be promoted to the rank of sergeant, but was not
among those actually promoted from the list. Id.
¶ 15. The plaintiff alleges that multiple white officers
under the age of forty with list numbers behind the
plaintiff's -- that is, who scored lower on the Exam --
were promoted from the same promotional exam list.
Id. ¶¶ 15-18, 22-23.
plaintiff also alleges that he filed for and was qualified to
take Exam Number 5535 in April 2015 for promotion to the rank
of lieutenant, but was denied the chance to sit for the exam
despite having been permitted to take a lieutenant's exam
in 2011. Id. ¶¶ 1, 21, 23. The plaintiff
alleges that the decisions not to promote the plaintiff to
the rank of sergeant following Exam Number 1533 and not to
allow the plaintiff to sit for Exam Number 5535 were made on
the basis of the plaintiff's “color, race, and
age” in violation of Title VII, the ADEA, and the New
York State and New York City Human Rights Laws. Id.
plaintiff also alleges that he has been repeatedly assigned
to dangerous posts and given unfavorable work assignments.
For example, the plaintiff alleges that in January 2000 he
was assigned a post as the precinct cell attendant in the 046
precinct after a white male officer with less seniority than
the plaintiff protested to the assigning sergeant. Compl.
¶ 34. The plaintiff alleges that, over an unspecified
period of time, he has been placed on a particularly
dangerous post within the 046 precinct on multiple occasions
and has been involved in two officer-related shootings while
on duty there. Id. ¶¶ 26-27. He further
alleges that, whereas certain white officers have been
rewarded with departmental recognition and special job
assignments following police-related shootings, the plaintiff
“was not credited for [his] heroic acts.”
Id. ¶ 28; 52-53; p. 33.
plaintiff also alleges that he has been repeatedly assigned
to work the “barrier section, ” which is located
in Queens more than two hours from his home and, because of
the timing of his normal tours, the shift often leaves him
sleep deprived. Id. ¶¶ 60-63. The barrier
section assignment requires significant physical labor, and
the plaintiff alleges that that work was made more difficult
on at least one occasion in June 2016 when he was forced to
perform the work while assigned to a truck with no working
air conditioning. Id. ¶¶ 65-68.
Complaint also alleges discriminatory and harassing behavior
by several individuals at the N.Y.P.D. The Complaint alleges
that on one occasion a Sergeant Leone spoke to the plaintiff
“in a very nasty, and unprofessional manner, ”
gave him an unfavorable assignment requiring him to transport
a prisoner from Bronx central booking to Montefiore hospital,
and refused to provide the plaintiff with a patrol car with a
partition to use during the trip. Id. ¶¶
37-39. Two other officers of color allegedly reported to the
plaintiff that Sergeant Leone had been rude and disrespectful
to them, and that they felt Sergeant Leone was racist.
Id. ¶¶ 43-45.
plaintiff alleges that another white supervisor, Sergeant
Joseph Doria, has repeatedly given him unfavorable
assignments, including assigning the plaintiff to a midnight
“foot post” at a time when the plaintiff was
recovering from a broken ankle without providing the
plaintiff with a vehicle, and assigning him to multiple other
posts which the plaintiff considered to be
“rookie” or “undesirable” posts.
Compl. ¶¶ 47-51. The plaintiff also alleges that
former N.Y.P.D. Lieutenant Kristine Schelberger mounted
“an ongoing attack” against the plaintiff
throughout the years 2008 through 2010, apparently by
participating in the presentation of charges against the
plaintiff by the Internal Affairs Bureau, and put the
plaintiff in “threat of unnecessary harm” when
she acted as his platoon commander in or around 2013.
Id. ¶¶ 56-58.
plaintiff also alleges that, in January 2016, Lieutenant
Gabriel Healy made an inappropriate sexually explicit comment
to the plaintiff, and that on two other occasions Lieutenant
Healy made inappropriate jokes about the plaintiff
“harassing” female officers in the office. Compl.
¶¶ 71-80. The plaintiff alleges that this behavior
created a hostile work environment and constituted harassment
in violation of Title VII and the New York City and New York
State Human Rights Laws. He also alleges that a Lieutenant
Hillian wrongfully refused to correct and consolidate the
plaintiff's sick reports as a form of retaliation against
the plaintiff “for speaking out against the
NYPD.” Id. ¶¶ 92-94.
the plaintiff alleges that he believes that the N.Y.P.D. was
responsible for the disruptive and aggressive questioning of
the plaintiff's then-sixteen year-old daughter at his
home in Monticello, New York, in what he believes was a
failed attempt to discover the plaintiff in violation of the
N.Y.P.D. residency requirements. Compl. ¶¶ 81-87.
the Complaint alleges a wide-ranging plot to impede the
advancement of the plaintiff's career and force the
plaintiff to quit or retire. Prior to filing suit, the
plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on
June 29, 2016. Compl. p. 3.Construed liberally, the Complaint
asserts claims for (1) race and age discrimination in
violation of Title VII, 42 U.S.C. § 2000e et
seq. and the ADEA; (2) creation of a hostile work
environment; (3) retaliation; (4) race and age discrimination
in violation of the New York State Human Rights ...