United States District Court, S.D. New York
KUSH C. CHAKRABORTY, Plaintiff,
VALENTINA SOTO and THE RIVERSIDE CHURCH, Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA, UNITED STATES DISTRICT JUDGE.
August 2015, Plaintiff Kush C. Chakraborty was fired from his
job as Chief Engineer of Defendant The Riverside Church
(“Riverside”). He claims that his termination was
the product of unlawful discrimination against individuals of
Indian extraction. In 2016, Plaintiff filed this pro
se lawsuit against Riverside, Riverside's Director
of Human Resources Valentina Soto (together with Riverside,
“Defendants”), and Thomas Monti,  a contractor who
managed Riverside's facilities. Plaintiff seeks relief
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17 (“Title VII”), the
New York State Human Rights Law, N.Y. Exec. Law §§
290 to 297 (the “NYSHRL”), and the New York City
Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to
8-131 (the “NYCHRL”).
have moved to dismiss part of Plaintiff's First Amended
Complaint under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). They argue that the election-of-remedies doctrine
divests this Court of subject matter jurisdiction to
entertain Plaintiff's NYSHRL and NYCHRL claims, because
Plaintiff first sought redress for these claims before the
New York State Division of Human Rights (the
“NYSDHR”). And they insist that Plaintiff cannot
maintain his Title VII claim against Soto, because that
statute does not permit individual liability. The Court
agrees with Defendants' arguments, and grants
Defendants' motion for the reasons set forth below.
purposes of this motion, the Court accepts as true the
well-pleaded allegations in Plaintiff's First Amended
Complaint. Riverside is a Manhattan church. (FAC 2).
Plaintiff began working “as [Riverside's] assistant
chief engineer” on July 8, 2013. (Id. at 11).
And right from the start, Plaintiff claims, he encountered
hostility from Monti, who belittled and harassed Plaintiff
because the latter is of Indian extraction. (Id.).
did not work directly for Riverside: He was a contractor for
Newmark Grubb Knight Frank, and served as Riverside's
Property Manager. (FAC 11). In that capacity, he supervised
Plaintiff throughout Plaintiff's tenure at Riverside.
(Id. at 11-13). When interacting with Plaintiff,
Monti would refer frequently to “you Indian people,
” and make derogatory comments about them (e.g.,
“‘you people are crazy' and ‘you people
do not understand English'”). (Id. at 11).
behavior went beyond insults. When other people came to
Monti's office, Monti would offer them a seat, but he
never extended that courtesy to Plaintiff. (FAC 11). When
Riverside terminated its Chief Engineer, Pete Donnolo,
Riverside's Chief Financial Officer Howard Haughton asked
Plaintiff “to take over [ ] Donnolo's
responsibilities.” (Id.). But in August when
Plaintiff asked Monti if he could sit in the (unoccupied, the
Court presumes) Chief Engineer's office, Monti refused.
(Id.). Instead, Monti made Plaintiff sit in
Riverside's “boiler room” (or “boiler
house, ” as Plaintiff sometimes calls it) - a dirty,
dusty “open area full of … particles of
asbestos, fumes, and smoke.” (Id. at 11-12).
Sitting in the boiler room made Plaintiff sick. (Id.
at 11). Of note, at this time Riverside employed nine
“mechanics who were subordinate to [Plaintiff]”;
none were Indian, and all nine worked in “small rooms
with air conditioning, fans, heat, ovens[, ] and
attempted to resign from his job at Riverside because of
Monti's “continuous insults.” (FAC 11).
Haughton refused to accept Plaintiff's resignation.
(Id.). Instead, Riverside promoted Plaintiff to
Chief Engineer. (Id.). But Monti's
discrimination continued: He persisted in making
“statements to [Plaintiff] about [his] being
Indian.” (Id.). And it also appears that Monti
refused to let Plaintiff move to the Chief Engineer's
office, even after Plaintiff assumed the Chief Engineer role
at Riverside. (See Id. at 11-12). In December 2014,
Monti directed an “asbestos removal contractor to work
in [Plaintiff's] area” in the boiler room.
(Id. at 12). This asbestos removal, too, made
Plaintiff sick. (Id.). Plaintiff “never saw [
] Monti treat other employees as bad as this.”
that Monti was discriminating against him because he is
Indian, Plaintiff contacted Haughton and Soto. (FAC 12). They
assured Plaintiff that they would speak with Monti, although
the First Amended Complaint suggests that they did not follow
through. (See generally FAC). Monti continued
harassing Plaintiff. (Id. at 12). In January 2015,
when Plaintiff informed Monti that he needed to take sick
leave because his work conditions had made him ill, Monti
“was angry that [Plaintiff]” had not first gotten
permission to take leave. (Id.). And in
“February or March 2015, ” Monti threatened to
fire Plaintiff if he took seven days off from work to visit
his terminally ill aunt in Calcutta, India. (Id.).
Plaintiff did not make the trip. (Id.). All the
while, Monti allowed other Riverside employees to take
“leave, vacation[, ] and sick time.”
this same time, Monti again ordered “asbestos
workers” to work near Plaintiff's work space. (FAC
12). When Plaintiff asked Monti why he could not make these
workers “come at night, ” Monti responded by
telling Plaintiff to “just [ ] go and do [his]
job.” (Id.). Plaintiff e-mailed Soto about
this incident, but here too, it is unclear whether Soto
in late February 2015, Monti changed Plaintiff's work
schedule. (FAC 12). From the time he was hired at Riverside
until February 2015, Plaintiff had worked from 4:00 p.m. to
12:00 a.m. (Id.). Those hours “were best
for” Plaintiff, because they allowed him to take his
wife to her morning doctor's visits. (Id.).
Monti knew about these doctor's visits. (Id.).
But he changed Plaintiff's schedule so that Plaintiff
worked from 2:00 p.m. to 10:00 p.m. (Id.). And
thereafter, Monti changed Plaintiff's schedule again to
8:00 a.m. to 4:00 p.m. (Id.). Plaintiff
“believe[s] [Monti] changed [his] hours to make
[Plaintiff] quit because [Monti] did not like working with
Indian people.” (Id.). Plaintiff complained to
Haughton and Soto, who told Plaintiff that he needed
“to work the hours that [ ] Monti wanted.”
(Id.). Eventually, Plaintiff, Soto, and Haughton
reached a compromise: Plaintiff would work from 11:00 a.m. to
10:00 p.m. (Id.). Upon learning of Plaintiff's
new shift, Monti “was annoyed that [Plaintiff]”
had escalated the issue “to Human Resources.”
continued to harass Plaintiff (and spew anti-Indian rhetoric)
throughout early 2015. (FAC 13). Monti also undercut and
“shouted at” Plaintiff “in front of
[Plaintiff's] subordinates.” (Id.).
“[A]t some point in 2015, ” Plaintiff tried for a
second time to resign from his position at Riverside.
(Id.). And again, Haughton refused, telling
Plaintiff that he was doing good work. (Id.).
April 2015, Plaintiff took Soto to the boiler room to show
her where he worked. (FAC 13). Plaintiff told Soto
“that [he] was being discriminated against as an
Indian, ” and Soto saw “dirt, dust[, ] and
asbestos particles falling on [Plaintiff's] table.”
(Id.). Soto ordered Monti to move Plaintiff to the
Chief Engineer's office. (Id.). The First
Amended Complaint suggests that Monti complied, although
Plaintiff adds that “Monti continued to harass
[Plaintiff] to try to get [him] to quit.”
August 12, 2015, Soto and Monti terminated Plaintiff
“without any prior notice.” (FAC 13). Soto
explained to Plaintiff that Plaintiff was being fired because
Monti “was not happy with [his] performance.”
(Id.). Soto demanded that Plaintiff leave Riverside
that day - without first saying goodbye to his coworkers or
recounts that earlier in 2015, “another Indian
employee, Mr. Ali” was also fired. (FAC 13). When
Plaintiff asked Monti why Ali was let go, Monti told
Plaintiff that “Ali was a thief.” (Id.).
Plaintiff does not believe this to be true. (Id.).
And Plaintiff also recalls that after he was terminated, Ali
“came to see [Plaintiff], … told [Plaintiff] it
was difficult to work with [ ] Monti … said that
[Monti] does not like Indian people[, ] and suggested that
[Plaintiff] get another job.” (Id.).
Plaintiff's employment at Riverside, Soto always
“took [ ] Monti's side” whenever Plaintiff
complained about Monti. (FAC 13). Plaintiff told Soto that
Monti was harassing him because he is Indian. (Id.).
But Soto did not “protect[ ] [Plaintiff] from
[Monti's] harassment.” (Id.). Instead, she
terminated Plaintiff “at [Monti's] request, ”
despite the fact that Plaintiff was good at his job.
(Id.). Plaintiff believes that “they”
(Monti and Soto, the Court assumes) terminated Plaintiff
“because [ ] Monti did not like to work with
Indians.” (Id.). Plaintiff also believes that
he “was fired in retaliation for reporting [ ]
Monti's discrimination.” (Id.).
thrust of Defendants' motion to dismiss is that Plaintiff
cannot pursue his NYSHRL and NYCHRL claims here, because he
already pursued them before the NYSDHR. Addressing that
argument requires the Court to compare the claims Plaintiff
filed in his NYSDHR administrative action with the claims he
raises in his First Amended Complaint. With that goal in
mind, the Court considers how Plaintiff's NYSDHR action
unfolded, then recounts the procedural history of his federal
Plaintiff's NYSDHR Action
December 28, 2015, Plaintiff filed a complaint against
Riverside with the NYSDHR. (NYSDHR Order 1). Plaintiff alleged
that Riverside had engaged in discrimination and retaliation
because of Plaintiff's race, “color, ” and
age, in violation of the NYSHRL. (Id.). The NYSDHR
disagreed. After conducting an investigation into
Plaintiff's claims, it determined that there existed no
probable cause to conclude that Riverside had discriminated
or retaliated against Plaintiff. (Id.).
NYSDHR reached that conclusion after reviewing the evidence
and considering Plaintiff's arguments. Plaintiff had
alleged that everyone at Riverside - including
Riverside's “HR Director” - was
“satisfied with his performance, except” for
Monti. (NYSDHR Order 1). Monti, Plaintiff claimed,
“never liked him.” (Id.). And Plaintiff
attributed this to the fact that Riverside's CEO selected
Plaintiff for his position at Riverside, and thus that Monti
“did not personally hire” Plaintiff.
(Id. at 1, 3).
NYSDHR proceeding, Plaintiff complained about many of
Monti's actions. Plaintiff alleged that Monti had forced
him to work in Riverside's “boiler house” -
an “unsafe environment” - for two years. (NYSDHR
Order 1). And Plaintiff further claimed “that Monti
[was] ‘very much against the Asian
community.'” (Id. at 2). In support of
this claim, Plaintiff informed the NYSDHR that Monti had
fired Ali from Riverside. (Id.). Plaintiff also
alleged that he had twice complained internally - once in
November 2014 and again in February 2015 - about the
discrimination he faced. (Id. at 3).
NYSDHR did not find “sufficient evidence to establish
an inference of discrimination” from the conduct
Plaintiff alleged. (NYSDHR Order 3). In reaching this
conclusion, the NYSDHR considered many of the incidents
Plaintiff alleges in the First Amended Complaint. The NYSDHR
addressed, for example, the changes in Plaintiff's work
schedule in ...