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Weinstein v. City of New York

United States District Court, S.D. New York

September 5, 2017




         Plaintiff Fred Weinstein (“Plaintiff”) brings this civil rights action, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and New York City Administrative Code § 8-101 (the “NYCHRL”), against the City of New York (“City”), the New York City Department of Sanitation (“DSNY”), and the New York City Department of Citywide Administrative Services (“DCAS”) (collectively, “Defendants”). In a two-count Amended Complaint, Plaintiff, a former DSNY employee, alleges that he suffered unlawful discrimination on the basis of his race, religion, and disability. (Docket Entry No. 26.) Defendants now move, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), 12(d), and 56 to dismiss the complaint, arguing that the claims asserted in Plaintiff's Amended Complaint are barred by the doctrines of claim and issue preclusion and that the pleading fails to state a claim upon which relief may be granted. (Docket Entry No. 20.) The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

         The Court has considered the parties' submissions carefully. For the following reasons, Defendants' motion is denied.[1]


         The following recitation of facts is drawn from the Amended Complaint (Docket Entry No. 26, Amended Complaint (“Am. Compl.”)), the well-pleaded factual content of which is taken as true for purposes of this motion, and the record of Plaintiff's city administrative proceedings.

         Plaintiff is a white, Jewish, man who was employed by DSNY as a sanitation worker from on or about September 15, 2014, until an unspecified date. (Am. Compl. ¶¶ 13, 31). Plaintiff alleges that he was a “good employee and performed all of his duties well, ” and “had a perfect attendance record.” (Id. ¶ 14) (internal modifications omitted). Approximately nine months after Plaintiff began working at DSNY, Plaintiff received a letter from DCAS stating that an investigation had been opened regarding Plaintiff's employment application to the City. (Id. ¶ 15.) Specifically, DCAS was investigating improprieties within Plaintiff's employment application regarding allegedly concealed criminal convictions. (Id. ¶ 21.) Plaintiff “had previously been convicted of five misdemeanors, all of which were for non-violent offenses, and the last of which occurred in 2012. Plaintiff was convicted of one felony, for possession of drugs, in 1995.” (Id. ¶ 16) (internal modifications omitted). Plaintiff alleges that in June 2015, in the course of the DCAS investigation, an investigator asked him if he was Jewish, and he responded that he was. (Id. ¶ 17.) The DCAS investigator then allegedly stated, “‘That's what I needed to know' and then hung up.” Id. “Plaintiff received a letter from a DCAS investigator which contained a “‘proposed action plan for termination'” in or about late July 2015. (Id. ¶ 18.) Plaintiff further alleges that he told a DCAS investigator supervisor in or about August 2015 that any errors on his application were likely the result of his disability of poor eyesight, and that the same supervisor mocked and laughed at him on the basis of his disability when he later completed a statement in connection with the investigation of his application. (Id. at ¶¶ 26-28, 34.) At the end of the encounter, according to Plaintiff, the supervisor told him to “expect the worst” and “get the hell out.” (Id. ¶ 29.) Plaintiff alleges that he was “terminated, in whole or in part, due to his disability.” (Id. ¶ 34.) The termination took place a few weeks after the meeting with the DCAS investigator supervisor. (Id. ¶ 31.)

         Plaintiff alleges that an African-American, non-Jewish, sanitation worker (the “Comparator”) told him he was also being investigated by DCAS “for allegedly failing to report prior criminal convictions” on his employment application and had received a proposed action plan for termination letter. (Id. ¶¶ 20, 23.) According to Plaintiff, the Comparator told him that DCAS had “sudden[ly] and unexpected[ly]” changed their “‘nasty' and ‘hostile'” demeanor towards the Comparator in April 2015, and shortly thereafter ceased their investigation into him, after the Equal Employment Opportunity Commission (“EEOC”) issued a $245 million probable cause determination against DCAS for employment discrimination against blacks and Hispanics, in violation of Title VII. (Id. ¶¶ 22, 24-25.) Plaintiff alleges that “DCAS attempted to ‘remedy' or at least appear to remedy their discriminatory conduct by treating blacks and Hispanics more favorably after the EEOC determination.” (Id. ¶ 25.)

         Plaintiff alleges that the divergent outcomes of Plaintiff's and the Comparator's investigations “for the same conduct: improprieties on their employment application regarding prior convictions, ” demonstrate disparate treatment on the basis of race and religion among the sanitation workers. (Id. ¶¶ 21, 25, 39, 44.)

         Plaintiff appealed his termination to the New York City Civil Service Commission (“CSC”). (See Declaration of Cassandra N. Branch in Support of Defendants' Motion to Dismiss (“Branch Decl.”), Ex. I, Docket Entry No. 21-15.) The CSC affirmed DCAS's determination finding Plaintiff disqualified for the position of Sanitation Worker. (Id., Ex. N, Docket Entry No. 21-24.)


         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A proper complaint cannot simply recite legal conclusions or bare elements of a cause of action; there must be factual content plead that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         “In adjudicating a motion to dismiss, a court may consider only the complaint, any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies.” Geron v. Seyfarth Shaw LLP (In re Thelen LLP), 736 F.3d 213, 219 (2d Cir. 2013) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)). The Court may also consider matters that are subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         Claim and Issue Preclusion

         Defendants argue that Plaintiff's Amended Complaint should be dismissed as barred by the doctrines of claim and issue preclusion as a result of the CSC's decision on Plaintiff's appeal.[2] Unreviewed state agency “determinations are frequently granted preclusive effect under federal common law.” U.S. v. E. River Housing Corp., 90 F.Supp.3d 118, 139 (S.D.N.Y. 2015). “[W]hen a state agency acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, . . . federal courts must give the agency's fact finding the same preclusive ...

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