United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
LAURATAYLORSWAIN, UNITED STATES DISTRICT JUDGE.
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
“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. §
Court has considered the parties' submissions carefully.
For the following reasons, Defendants' motion is
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.
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.)
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.)
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,
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.)
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.
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,
and Issue Preclusion
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. 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 ...