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Raymond v. City of New York

United States District Court, S.D. New York

June 27, 2018

THE CITY OF NEW YORK, MAYOR OF THE CITY OF NEW YORK BILL DE BLASIO, in his individual and official capacity, FORMER POLICE COMMISSIONER WILLIAM J. BRATTON, in his individual capacity, POLICE COMMISSIONER JAMES P. O'NEILL, in his individual and official capacity, NYPD CHIEF OF DEPARTMENT CARLOS GOMEZ, in his individual and official capacity, and BUREAU CHIEF NYPD COMMANDING OFFICER OF PATROL SERVICES TERENCE MONAHAN, in his official capacity, [1] Defendants.

          NWOKORO & ASSOCIATES, P.C. By: Chukwuemeka Nwokoro, Esq. Attorneys for Plaintiffs

          ZACHARY W. CARTER CORPORATION COUNSEL OF THE CITY OF NEW YORK Kathleen Marie Comfrey, Esq., Yuval Rubinstein, Esq. Attorneys for Defendants



         Plaintiffs Edreweene Raymond (“Raymond”), Adhyl Polanco (“Polanco”), Pedro Serrano (“Serrano”), Sandy Gonzalez (“Gonzalez”), Ritchie Baez (“Baez”), Julio Diaz (“Diaz”), Felicia Whitely (“Whitely”), Roman Goris (“Goris”), Derick Waller (“Waller”), Kareem Abdullah (“Abdullah”), Olayokun Olagoke (“Olagoke”), and Widmarc Pierre (“Pierre”) (collectively, “Plaintiffs”) brought this civil rights action, individually and on behalf of a putative class of all others similarly situated, pursuant to New York Labor Law § 215-a; 42 U.S.C. §§ 1981, 1983, 1985, and 1986; the New York State Human Rights Law (“NYSHRL”), New York Executive Law §§ 290, 296; the New York City Human Rights Law (“NYCHRL”), New York City Local Law 59 of 1986 as amended by Local Rule 39 of 1991, § 8-207; and New York State Constitution Article 1, § 8, against Defendants the City of New York (“the City”), Mayor of the City of New York Bill de Blasio (“Mayor de Blasio”), Former Police Commissioner William J. Bratton (“Former Commissioner Bratton”), Police Commissioner James P. O'Neill (“Commissioner O'Neill”), NYPD Chief of Department Carlos M. Gomez (“Chief Gomez”), and Bureau Chief NYPD Commanding Officer of Patrol Services Terence Monahan (“Chief Monahan”), (Mayor de Blasio, Former Commissioner Bratton, Commissioner O'Neill, Chief Gomez, and Chief Monahan are, together, referred to herein as the “Individual Defendants”) (collectively, ”Defendants“). The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.

         In a 17-count Amended Complaint, Plaintiffs claimed that the NYPD maintains illegal arrest and citation quotas that are focused disproportionately on areas in which minorities reside, that minority officers are pressured to meet the quotas, and that minority officers suffer adverse and retaliatory employment actions when they refuse to enforce or complain about the quotas as discriminatory. (Docket Entry No. 31.) On March 6, 2017, this Court issued a Memorandum Opinion and Order granting Defendants' motion to dismiss the Amended Complaint (the “Motion to Dismiss Opinion”), and permitting Plaintiffs to move for leave to file a Second Amended Complaint as to the claims and requests for relief asserted in the Amended Complaint's Second, Fourth, Fifth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, and Seventeenth Causes of Action. (Docket Entry No. 60.) Those claims were for preliminary and permanent injunctive relief, and alleged violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981, New York State and New York City Human Rights Laws, and of the First Amendment to the United States Constitution and 42 U.S.C. § 1983 based on alleged retaliation.[2] (Id.)

         On April 7, 2017, Plaintiffs moved for leave to file a Second Amended Complaint, appending their proposed Second Amended Complaint (“Proposed SAC”) to their motion papers. (Docket Entry No. 64, Docket Entry No. 66-1.) In the Proposed SAC, Plaintiffs seek to assert claims against the City, Mayor de Blasio, Former Commissioner Bratton, Commissioner O'Neill, Inspector and Former Commanding Officer of the 40th Precinct Christopher McCormack (“Inspector McCormack”), Deputy Inspector and former Commanding Officer of Transit District 32 Constantin Tsachas (“Deputy Inspector Tsachas”), First Deputy Commissioner Benjamin Tucker (“First Deputy Commissioner Tucker”), and Deputy Commissioner, Department Advocate Kevin S. Richardson (“Deputy Commissioner Richardson, ” and, collectively with the aforementioned individuals, the “Proposed Individual Defendants, ” and collectively with the City, the “Proposed Defendants”) for employment discrimination based on race, pursuant to 42 U.S.C. § 1983 and the New York State and New York City Human Rights Laws; and violations of the First Amendment rights of Plaintiffs Raymond, Polanco, Serrano, Waller, and Gonzalez, pursuant to 42 U.S.C. § 1983, seeking damages and injunctive and declaratory relief.[3] (Docket Entry No. 66-1.)

         The Court has considered the parties' submissions carefully. As explained below, Plaintiffs' motion is granted in part and denied in part.



         The Court assumes the parties' familiarity with the background of this case as recited in the Motion to Dismiss Opinion. See Raymond v. City of New York, No. 15-CV-6885-LTS-HBP, 2017 WL 892350 (S.D.N.Y. Mar. 6, 2017). The following summary of Plaintiffs' allegations is limited to those relevant to the claims asserted in the Proposed SAC. Plaintiffs' non-conclusory factual allegations are taken as true for purposes of this motion practice.

         Plaintiffs allege that the NYPD maintains a policy that, in violation of a state law prohibiting quotas for law enforcement activities, directs its employees to perform a mandatory number of arrests or other police actions over a defined period of time as a performance standard, effectively establishing quotas, and that the policy “has led to a pattern and practice of discrimination against officers of Hispanic and African-American heritage on the basis of color, race and national origin.” (Proposed SAC ¶¶ 3, 19.) Plaintiffs allege that “failure to meet the illegal quota[s] result[] in adverse employment consequences, including but not limited to negative evaluations, termination or threat of termination, lost compensation, lost overtime, denial of promotions and upgrades, denial of overtime, loss of vacation days earned, loss of accrued time earned, punitive postings and punitive transfers, suspension, investigations, charges, suspensions, formal and informal discipline, assignments to undesirable and/or particularly dangerous tasks, punitive postings and punitive transfers, all leading and contributing to a hostile working environment and racially disparate treatment of the minority police officers.” (Id. ¶ 22.) Plaintiffs, who are Latino and African-American police officers currently or formerly employed by the NYPD, sue on behalf of themselves and of a putative class of “approximately 6, 000” Black and Latino NYPD officers, “who will have been and will be affected by the imposition of the illegal quota system, ” pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2). (See id. ¶¶ 213-17.)

         Plaintiffs characterize the roles of the Proposed Individual Defendants as follows. In his capacity as mayor, Defendant Mayor de Blasio “routinely met with the Police Commissioner[, ] Deputy Police Commissioners[, ] and other high[-]ranking members of the NYPD to set policy and make recommendations relating to the polic[i]es, administration, practices, customs[, ] and procedure[s] of the NYPD and relating to the disciplinary system and implementation of penalties within the NYPD.” (Id. ¶ 60.) In his capacity as Commissioner, Bratton was the “principal administrator” of the NYPD, “responsible for the application of the NYPD's enforcement and administrative polic[i]es[, ] including its internal investigatory and disciplinary process.” (See id. ¶ 61.) As Chief of Department, O'Neill was “the highest ranking non-civilian . . . uniformed police officer” and “in charge of all NYPD operations answering only to the Police Commissioner and the Mayor.” (See id. ¶ 62.) Proposed Defendant Inspector McCormack was the commanding officer of the NYPD's 40th Precinct from September 27, 2011, to May 2014, at which point the Plaintiffs allege “he was transferred out of the precinct” following media reports “that he was recorded pressuring a police officer to target young [B]lack males.” (Id. ¶ 63.) Proposed Defendant Inspector Tsachas was the commanding officer of Transit District 32 from June 2015 to June 2016. (Id. ¶ 64.) Proposed Defendant Tucker is the First Deputy Police Commissioner of the NYPD, and he allegedly “set policy, directed personnel, approved penalties and made recommendations as to all penalties regarding all disciplinary matters within the NYPD, ” and chaired Steering Committee meetings where “penalties are discussed and recommendations made” regarding disciplinary actions against Black and Latino NYPD officers. (Id. ¶ 65.) Proposed Defendant Tucker also chairs the Special Monitoring Committee, a body within the NYPD that determines whether to place NYPD officers in a Performance Monitoring Program (the “PMP”). (Id.) Proposed Defendant Kevin S. Richardson is a Deputy Commissioner of the NYPD as well as the Commanding Officer of the NYPD's Advocate's office, and he allegedly “routinely met with other defendants to set policy, approve penalties, and make recommendations regarding disciplinary matters, ” and participates in Steering Committee meetings and the Special Monitoring Committee. (Id. ¶ 66.)

         The Proposed SAC generally alleges that the Proposed Individual Defendants knew or should have known of the customs, practices, and policies described in the Proposed SAC, including but not limited to the maintenance of the illegal quota system by the NYPD and its racially discriminatory effect on the minority community and minority officers including the Plaintiffs, and “condoned, ratified and/or authorized” such practices, policies, and conduct. (See id. at ¶¶ 60-66.)

         Plaintiffs proffer the following statistical allegations in support of their employment discrimination claims. According to Plaintiffs, as of June 2014, the NYPD had 35, 000 members, of whom 51% were White, 26% were Latino, and 16% were Black. (Id. ¶ 245.) Plaintiffs allege that “the vast majority of the NYPD command structure[] are [W]hite males[, ]” as 80% of captains and 82% “of the appointed ranks above the rank of Deputy Inspector” are White. (Id.) Plaintiffs also allege that, as of November 2014, Black and Latino police officers comprised 43% of the NYPD's uniform workforce, but held only 17% of appointed positions above the rank of Deputy Inspector. (Id. ¶ 246.)

         Plaintiffs allege that “the performance evaluation system to which the [P]laintiffs are subjected by the [Proposed D]efendants is unfair” because, despite being “neutral on its face, . . . minority officers are more likely to be charged, investigated and receive more punishment, than their [W]hite counterparts for the same alleged offenses.” (Id. ¶ 26.) In support of that fact, Plaintiffs allege, on information and belief, that unspecified statistics from the Case Analysis and Tracking System (“CATS”) for a three-year period spanning 2013 to 2016 “show a substantial disparity between the treatment of [B]lack and [L]atino police officers as opposed to their [W]hite counterparts, ” and that, over that period, such officers “[we]re more frequently written up for minor disciplinary infractions, ” for which the imposed penalties “[we]re more severe.” (Id. ¶¶ 39, 241.)

         Police officers' annual performance ratings, which range between 1.0 and 5.0, play an integral role in promotions and other employment actions, as a high annual performance rating of 4.0 or above is one of the requisite criteria for promotion to the next rank, while a “negative annual evaluation rating, ” or a score below 3.0, makes the officer “a candidate for placement into the probationary [PMP]”. (See id. ¶¶ 27, 29.) Plaintiffs allege that “[]though Black and Latino Police Officers constitute only 42% of the NYPD uniformed workforce, they make up 70% of all officers in the [PMP] as of December 31, 2016.” (Id. ¶ 235.) The PMP comprises three different levels of performance monitoring, each of which has different consequences for the terms of an officer's employment. (See id. ¶ 31.)

         Plaintiffs allege on information and belief that, from 2013 through 2015, Black and Latino officers were 50% and 70%, respectively, more likely than White officers to “receive formal charges and specifications, ” according to CATS data. (Id. ¶ 247.) Plaintiffs further allege on the same basis that Black and Latino officers were “substantially more likely to have been found guilty on departmental charges than [W]hite officers, ” that such officers, once found guilty, were more likely than White officers to be terminated or placed on probation, and that “in general, disparities in the treatment of Latino and Black officers as compared to [W]hite officers at each stage of the disciplinary process support the inference that race and ethnicity were motivating factors in the decisions.” (Id.) Plaintiffs also allege that Blacks and Latinos are 25% overrepresented in “consultations, ” which are investigations to see if command discipline charges should be brought against an officer, and that such consultations involving Black and Latino officers are 25% more likely to result in charges than consultations involving White officers. (Id. ¶ 248.) Plaintiffs also allege that Black and Latino officers are 4% less likely to be offered a plea than White officers, and that dispositions of charges involving minority officers are harsher: Black and Latino officers are 40% more likely to receive a “guilty at trial” disposition and 84% more likely to receive a “charges filed” disposition, compared to White officers, and that Black and Latino officers are 659% more likely to be terminated, compared to White officers. (Id.)

         All Plaintiffs allege that they “suffered negative employment consequences as a result of the failure to meet the illegal quotas” and that they were “racially discriminated against . . . with respect to performance evaluations, the [PMP], and the administration of discipline and punishment.” (Id. ¶¶ 46-57.) They also allege that each “has been penalized for reporting and complaining about the illegal quotas and its racially discriminatory application against the minority community.” (Id.) The Proposed SAC also proffers factual allegations specific to each named Plaintiff's NYPD experience, the details of which are discussed infra in connection with the question of the sufficiency of each Plaintiff's claims of discriminatory treatment, retaliation for complaints of discrimination, hostile work environment, and retaliation for engaging in activity protected by the First Amendment.



         Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend should be freely granted when justice so requires. Fed.R.Civ.P. 15(a). While granting or denying such leave is within the discretion of the district court, Reisner v. General Motors Corp., 511 F.Supp. 1167, 1171 (S.D.N.Y. 1981), leave to amend will generally be granted unless: (1) there is evidence of undue delay, bad faith, dilatory motive, or repeated failures to cure deficiencies by amendments previously allowed; (2) allowing amendment would cause undue prejudice to the opposing party; or (3) the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). Defendants oppose Plaintiffs' motion, arguing that the proposed amendment would be futile. A proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Ballard v. Parkstone Energy, LLC, No. 06 CV 13099, 2008 WL 4298572, at *3 (S.D.N.Y. Sept. 19, 2008). Thus, “[l]eave to amend may be denied on grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of fact.” AEP Energy Servs. Gas Holding Co. v. Bank of America, N.A., 626 F.3d 699, 726 (2d Cir. 2010) (citation omitted).

         When considering a Rule 12(b)(6) motion, the Court accepts as true all non-conclusory factual allegations in the complaint and draws all reasonable inferences in the Plaintiff's favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007). To survive such a motion, the 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court is not, however, required to accept “conclusory statements” made by the plaintiff as true, nor do “legal conclusion[s] couched as [] factual allegation[s]” merit such deference. Twombly, 550 U.S. at 555.

         A. Racial Discrimination Claims, asserted pursuant to 42 U.S.C. §§ 1981 and 1983, the NYSHRL, and the NYCHRL (Second, Fourth, and Fifth Causes of Action)

         In the Proposed SAC's Second, Fourth, and Fifth Causes of Action, Plaintiffs assert that the Proposed Defendants are liable for inflicting or approving racially discriminatory employment practices that violate 42 U.S.C. §§ 1981, 1983, the NYSHRL, and NYCHRL. (Proposed SAC ¶¶ 222-72.) The Proposed Defendants oppose Plaintiffs' request for leave to file these claims, arguing that neither Plaintiffs' statistical evidence nor their individualized allegations, alone or in combination, are sufficient to support an inference of intentional discriminatory or retaliatory conduct, that insufficient facts are plead to support the requisite inference of personal involvement on the part of the Proposed Individual Defendants, and that certain claims are time barred. (See Defendants' Opposition to Plaintiffs' Motion to File a Second Amended Complaint (“Opp. Br.”), Docket Entry No. 72, at 2-18.)

         1. Federal Claims

         Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . .” 42 U.S.C.S. § 1981(a) (LexisNexis 2009). “[T]he term ‘make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.S. § 1981(b) (LexisNexis 2009). Section 1981's protections apply to employment relationships. See Patterson v. Cty. of Oneida, 375 F.3d 206, 224-25 (2d Cir. 2004). However, “[w]hen the defendant is a state actor, Section 1983 is the exclusive remedy for violations of rights guaranteed under Section 1981 . . . [t]hus, claims against . . . [i]ndividual [d]efendants in their official capacity or against the City, must be brought under Section 1983.” Bermudez v. City of New York, 783 F.Supp.2d 560, 576 (S.D.N.Y. 2011) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)) (additional citations omitted).[4] Accordingly, Plaintiffs' Second Cause of Action is construed as a claim brought pursuant to Section 1983 to enforce the provisions of Section 1981.

         “To establish a claim under [Section] 1981, [] plaintiff[s] must allege facts in support of the following elements: (1) the plaintiff[s] [are] member[s] of a racial minority; (2) an intent to discriminate on the basis of race by the defendant[s]; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (citations omitted). “Although ‘an employment discrimination plaintiff need not plead a prima facie case of discrimination' in order to survive a motion to dismiss, ” a plaintiff “must allege sufficient facts showing that she is entitled to relief.” Bermudez, 783 F.Supp.2d at 575 (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002)).

         “To state a discrimination claim under the Fourteenth Amendment Equal Protection Clause [of the Constitution of the United States] and/or § 1981, [P]laintiffs must sufficiently allege that [the Proposed D]efendants acted with discriminatory intent.” Burgis v. N.Y.C. Dep't of Sanitation, 798 F.3d 63, 68 (2d Cir. 2015) (citing Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982)). “Purposeful discrimination requires more than intent as volition or intent as awareness of consequences; it involves a decisionmaker's undertaking a course of action because of, not merely in spite of, the action's adverse effects upon an identifiable group.” Iqbal, 556 U.S. at 663 (internal quotation marks, brackets, and citation omitted). To withstand “a motion to dismiss, the plaintiff[s] must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.” Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994) (citation omitted); see also Andrews v. Fremantlemedia, N.A., Inc., 613 Fed. App'x 67, 69 (2d Cir. 2015).

         Plaintiffs allege that “[t]he NYPD's disciplinary system intentionally discriminates against Black and Latino police officers, and in favor of [W]hite police officers, ” through “three main interwoven ways[:] by racially unfair use of minor violations, command disciplines, and charges and specifications[;] by racially unfair use of annual and interim performance evaluations[;] and by racially disparate placement in the [PMP.]” (Proposed SAC ¶ 222.) Because a showing of intentional discrimination is fundamental to the statement of a racial or ethnic origin discrimination claim under Sections 1981 and 1983, the Court assumes that Plaintiffs use the term “unfair” in the Proposed SAC as a synonym for intentional discrimination.

         a. Statistical Evidence of Discriminatory Conduct

         “[T]o show discriminatory intent in a [Section] 1981 or Equal Protection case based on statistics alone, the statistics must not only be statistically significant in the mathematical sense, but they must also be of a level that makes other plausible non-discriminatory explanations very unlikely.” Burgis, 798 F.3d at 69 (citation omitted). Thus, in Burgis, where the Plaintiffs alleged widespread race- and/or national origin-based discrimination in New York City Sanitation Department promotional decisions, the Second Circuit upheld the dismissal of the complaint because the plaintiffs' statistics lacked specificity, as they “show[ed] only the raw percentages of White, Black, and Hispanic individuals at each employment level, without providing any detail as to the number of individuals at each level, the qualifications of individuals in the applicant pool and of those hired for each position, or the number of openings at each level.” See id.

         Here, the named Plaintiffs acknowledge that they did not make the alleged quotas and allege that they were disciplined more harshly, or subjected to more lenient quotas, than White NYPD officers. The statistics that they proffer do not, however, provide any basis for evaluation of the circumstances or charges on which disciplinary decisions were based. They merely break down generic categories of discipline and consequences on racial lines, and in a similar fashion present such disparities in the proportion of officers of each group who are in the NYPD's workforce as a whole, and in its leadership, and do not constitute a factual proffer sufficient to push Plaintiffs' claim over the line from possible to plausible. Cf. Iqbal, 556 U.S. at 678 (“[t]he plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully”). The allegations going to similarity of underlying offenses are plead in a conclusory fashion, on information and belief, with only a generalized reference to CATS statistics that are not presented in the Proposed SAC. Such conclusory allegations and statistics are insufficient to support plausibly the key intentional conduct element of Plaintiffs' federal discriminatory treatment claim. See Iqbal, 556 U.S. at 662 (quoting Twombly, 550 U.S. at 555) (“Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [a court is] ‘not bound to accept as true a legal conclusion couched as a factual allegation'”). The Court notes further that the alleged experiences of the named Plaintiffs, who do not appear to have been brought up on formal charges or found guilty and subjected to termination or other harsh sanctions, are not supportive of a statistical inference that Black and Latino officers are deliberately targeted for the harshest charges and discipline. Cf. Burgis, 798 F.3d at 70 (concluding that “the fact that each of the plaintiffs ha[d] been promoted at some point to the position of supervisor undermine[d] their allegations of discrimination in the promotion of sanitation workers to supervisors”).

         Plaintiffs have “fail[ed] to allege statistics” that are “not only . . . statistically significant in the mathematical sense” but are “also . . . of a level that makes other plausible non-discriminatory explanations very unlikely.” See id. at 69. Their figures lack specificity, “show only the raw percentages of [minority and White] individuals” in the PMP and otherwise encountering the disciplinary system, and do not “provide any detail as to the” ways in which the minority officers were comparable to the White officers, such as whether the minority and White officers in the PMP or facing formal charges and specifications have similar roles, qualifications, or personnel records. See Burgis, 798 F.3d at 69-70. Without such facts, the statistics as alleged do not “make other plausible non-discriminatory explanations” for disparities between minority and White NYPD officers very unlikely. See id. Plaintiffs' statistical proffers are thus insufficient to support the inference of systemic intentional racial or ethnic discrimination in charging Black and Latino NYPD officers with discipline that is a key foundation stone of Plaintiffs' class-wide disparate treatment and hostile work environment claims. For substantially the same reasons, they are insufficient to allege plausibly that any discipline or hostile work environment imposed on Black and Latino officers was the product of intentional discrimination carried out pursuant to official policies of the City.

         b. Allegations of Discrimination Against Plaintiffs

         The Court now turns to the particularized evidence proffered in the Proposed SAC regarding the experiences of the named Plaintiffs.

         Individual Plaintiffs' Discrimination Claims

         i. Raymond

         Raymond alleges that he was warned repeatedly about his enforcement activity numbers, and that he was at risk of being placed in the PMP and losing the opportunity to get promoted. (See Proposed SAC ¶¶ 68-69, 72, 78, 80.) He also alleges that he was given negative or subpar performance ratings, disciplinary notices and punishments, and lost an endorsement for promotion; Raymond characterizes these incidents as “acts of intentional racial discrimination” committed by the Proposed Defendants, including Proposed Individual Defendant Tsachas. (See id. ¶¶ 81, 85, 89, 94.) He alleges that Tsachas “punished minority officers more severely and more often than the [W]hite officers in his command for failure to meet the quota and any other disciplinary issue, ” specifically alleging that Raymond was disciplined for the untimely submission of a vacation request while two White officers were not disciplined for the same offense, and that he was disciplined for failure to meet the enforcement activity quota while a White officer with the same or a lower level of quota compliance was not punished in any way. (Id. ¶¶ 64, 88, 90.). Raymond also pleads that, on December 10, 2015, his promotion to Sergeant was canceled by a deputy commissioner who then endorsed the promotion of a White police officer, following a Review Board session that was called “to discuss Raymond's lack of enforcement activity and anticipated promotion to Sergeant.” (Id. ¶¶ 93-94.) Plaintiffs characterize the cancellation of the promotion as an “act of intentional racial discrimination, ” asserting that the promoted White officer was “comparable to Raymond in that he was also called before the [R]eview [B]oard.” (See id. ¶ 94.) Raymond, however, fails to plead facts to support the inference that he was indeed “comparable” to the promoted White officer in relevant respects, such as whether the two officers had similar backgrounds, experiences, law enforcement activity statistics or performance ratings. Appearing before the Review Board on the same day does not by itself support an inference that Raymond and the White officer were “comparable.”

         Raymond's allegations as to discipline for the denied vacation request and failure to discipline a White officer for failing to meet quotas at the same or a higher level of non-compliance are, however, just sufficient to frame claims for intentional discriminatory treatment. Plaintiff has identified alleged comparators and specified the conduct on which the alleged disparate treatment was based. While his allegations as to comparable status are relatively conclusory, the proffer of information as to similar relevant violations and consequences (or lack thereof) and the names of the White officers is sufficient in the context of the Proposed SAC to state disparate treatment causes of action against Proposed Individual Defendant Tsachas with respect to punishment for the late leave request and for failure to meet enforcement activity quotas. Raymond has failed, however, to allege the involvement of any of the other Proposed Individual Defendants in these measures and to show that any such measures were imposed pursuant to official policies of the City, so he will only be permitted to amend the complaint to assert these claims as against Proposed Individual Defendant Tsachas.

         Plaintiffs thus fail to plead that the Proposed Defendants as a group acted with discriminatory intent as to Raymond. Plaintiffs will, however, be permitted to plead Raymond's individual discrimination claims against Tsachas based on the discipline for the late vacation request and discipline for failure to meet enforcement quotas.

         ii. Gonzalez and Baez

         Gonzalez' and Baez' claims of racially discriminatory actions taken against each of them are similar. Gonzalez claims that he was repeatedly chastised and punished for failing to meet enforcement activity standards, and that it was “racially discriminatory” for Gonzalez to receive a negative performance rating when “[W]hite police officers in the same command, unit, squad, and shift as [Gonzalez], with equal or lower enforcement activity numbers, received annual performance evaluation ratings” higher than his own negative rating. (See Proposed SAC ¶ 108.) Gonzalez alleges that the enforcement metrics were brought up in discussions of his performance rating and names White officers who were allegedly in the same command and shift who had at least equally low metrics and were not given ratings as low as Gonzalez'. (Id. ¶¶ 108-09.) He alleges that the rating was imposed by a Lt. Hatki and upheld by Proposed Individual Defendant McCormack. (Id. ¶ 109.)

         Plaintiffs allege generally that in the 40th Precinct, to which both Gonzalez and Baez were assigned, all officers were subject to the same enforcement activity standards but that White officers did not receive the same punishments as Black and Latino officers. (Id. ¶ 133.) They allege that it was “racially discriminatory” for Baez to receive a negative performance rating in 2013 from Proposed Individual Defendant McCormack, “because in that year, [his] actual performance as a police officer merited a score of at least 4.0, ” because Baez performed “excellent police work” in 2013. (See id. ¶¶ 135, 137.) While Baez's subjective self-evaluation of the quality of his police work is insufficient to raise an inference of discrimination, he also alleges that “comparatively placed [W]hite police officers in the same unit, with similar activity numbers for the same period[] . . . did not get the same punishment, ” and received higher annual performance evaluation scores. (Id. ¶ 136.) On March 31, 2014, Baez was placed in the PMP for a negative performance rating by Proposed Individual Defendant McCormack, which Plaintiffs assert was “racially discriminatory” because McCormack specifically told Baez that his negative rating was based on writing an insufficient number of Criminal Court summonses, and because named White police officers “whose performance was at the same level or worse than Baez were not placed” in the PMP. (Id. ¶¶ 139-41.)

         Plaintiffs have proffered sufficient facts to state claims against Proposed Individual Defendant McCormack for discriminatory treatment as to low performance ratings and PMP designations based on failure to meet enforcement performance metrics. They have not, however, alleged facts showing that any of the other Proposed Individual Defendants were personally involved or that McCormack's conduct was undertaken pursuant to a City policy. Baez' and Gonzalez' rating and PMP claims can therefore be pursued only as against McCormack in his individual capacity.

         iii. Serrano

         Serrano also fails to plead facts sufficient to support a general inference of discriminatory intent. He claims that he “experienced first[]hand the negative effect of the quotas imposed by his supervisors on the minority community [that] he patrolled in the South Bronx, ” when he “received a negative performance evaluation” due to “his failure to meet the quota” imposed by his supervisors. (See id. ¶¶ 148-49.) He alleges that he told a supervisor that the precinct's residents “are predominantly low[-]income and that he did not feel right” giving them summonses, and that his supervisor allegedly, on an unspecified date, “referred to the residents as ‘animals, '” and Serrano “was deeply offended.” (See id.)

         To “determin[e] whether a comment evidences an intent to discriminate or whether it is a non-probative ‘stray remark,' courts consider four factors: (1) who made the remark (i.e.[, ] a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark; and (4) the context in which the remark was made (i.e.[, ] whether it was related to the decision-making process).” LaSalle v. City of N.Y., No. 13-CV-5109-PAC, 2015 WL 1442376, at *5 (S.D.N.Y. Mar. 30, 2015) (internal quotation marks, ellipses, and citation omitted). Serrano's allegation that his supervisor referred to residents of the 40th Precinct as “animals” constitutes such a “stray remark, ” and does not support an inference of discriminatory intent. (See Proposed SAC ¶¶ 148-49.) Plaintiffs allege that the remark was made in response to Serrano's expressing discomfort with giving low-income residents “spurious summons [sic].” (See id.) The comment was not made in relation to “the [employment] decision-making process” or the decision to give him a negative performance evaluation, nor does its content suggest race or ethnicity-based animus against Serrano. See LaSalle, 2015 WL 1442376, at *5. Plaintiffs' allegation thus constitutes “a non-probative ‘stray remark.'” See id.

         Serrano also alleges that “[i]t was unfair and racially discriminatory” for his supervisor to give him a 3.0 performance evaluation score for 2012, because certain of his metrics were comparable to his performance in earlier years and he received higher grades in those years, and that a basis for an inference of intent is present because “three [W]hite police officers who had the same as, similar to, or worse enforcement activity numbers” received higher evaluation scores. (Proposed SAC ¶¶ 159-60.) Although Plaintiffs do not plead how Serrano's enforcement metrics in 2012 and earlier years correlated to relevant benchmarks, Plaintiffs proffer that, when Serrano appealed the rating, Proposed Individual Defendant McCormack specifically stated that Serrano “did not stop enough black people.” (Id. ΒΆ 161.) These facts, ...

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