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Paterno v. City of New York

United States District Court, S.D. New York

July 31, 2018

JOHN PATERNO, Plaintiff,
v.
THE CITY OF NEW YORK, et al., Defendants.

          OPINION AND ORDER

          LORNA G. SCHOFIELD, District Judge:

         Plaintiff John Paterno brings this action against the City of New York (the “City”) and Polly Trottenberg, the Commissioner of the New York City Department of Transportation (the “DOT”), pursuant to 42 U.S.C. §1983. This case arises out of actions taken by DOT against Plaintiff in connection with allegations of racial discrimination directed at DOT and Plaintiff when he was an Executive Director of a subdivision of DOT. In the Amended Complaint (the “Complaint”) Plaintiff asserts two causes of action. The first is based on a “stigma-plus” theory, alleging that Defendants violated Plaintiff's due process rights “[b]y transferring and demoting [him] in a manner that causes injury to his reputation, limiting his current and future earning opportunities, and denying him a venue to clear his name;” and the second cause of action alleges that Defendants violated Plaintiff's First Amendment rights by “taking disciplinary/retaliatory action against Mr. Paterno for talking to fellow employees . . . .” Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons below, the motion is granted.

         I. BACKGROUND

         The following facts are drawn from the Complaint and documents attached to or integral to the Complaint, and are accepted as true for the purposes of this motion. See Tannerite Sports, LLC v. NBC Universal News Grp., 864 F.3d 236, 247-48 (2d Cir. 2017).

         A. The Title VII Action

         On January 18, 2017, the United States Attorney's Office for the Southern District of New York sued the City and the DOT for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., alleging a pattern and practice of racial discrimination and retaliation based on the failure to promote minority employees working at the DOT (the “Title VII Complaint”). The Title VII Complaint alleges that racial discrimination occurred in the Fleet Services subdivision of the Roadway Repair and Maintenance Division, and identifies two Executive Directors as the principal wrongdoers. Although the Title VII Complaint does not name either Executive Director, Plaintiff is easily identifiable as Executive Director II.

         The Title VII Complaint accuses Plaintiff of promoting less-qualified Caucasian employees over their better-qualified minority counterparts, and giving Caucasian employees the most desirable jobs. The Title VII Complaint also accuses Plaintiff of reducing a subordinate's access to overtime payments, in order to punish him for complaining that a highly-qualified minority candidate was passed over for a promotion in favor of a less-qualified Caucasian employee. According to the Title VII Complaint, when a highly-qualified minority employee complained that he did not receive a promotion, Plaintiff yelled at the employee: “I'll take you outside and kick your fucking ass.” The Title VII Complaint also states that Plaintiff lied to the DOT's Office of Equal Employment Opportunity (“EEO”), telling them that he never heard Executive Director I use racial epithets to refer to African American employees. On June 13, 2017, the City and DOT entered into a consent decree with the federal government, admitting to all allegations in the Title VII Complaint (the “Consent Decree”).

         Defendants never questioned Plaintiff about the critical allegations in the Title VII Complaint before the Consent Decree was signed and published. Plaintiff denies the allegations contained in the Title VII Complaint and Consent Decree. On June 16, 2016, before the filing of the Title VII Complaint, Plaintiff was transferred to a less-desirable position in the DOT, without any explanation or ability to appeal, and his pay was cut by approximately $60, 000 per year (the “Demotion”). The basis for the Demotion was the allegations of discriminatory conduct that underpin the Title VII Complaint and Consent Decree.

         B. The Press Accounts

         Subsequent to the execution of the Consent Decree, The Chief, a widely circulated public employee newspaper, published multiple articles criticizing Plaintiff. An article published on June 26, 2017, described the incident in which Plaintiff “verbally threatened . . . with a threat of physical violence a non-management employee who confronted him about his racist treatment of minority employees.” In a letter to the editor printed on July 3, 2017, and referenced in a June 30, 2017, article, Defendant Trottenberg identified Plaintiff by name, and stated that the DOT had taken “aggressive action” to rectify the matters discussed in the Consent Decree. Defendant Trottenberg stated that the DOT “removed John Paterno, the main subject of the investigation, from his position, reassigning him to a position without supervisory responsibility and no role in hiring or promotions.” According to the article, Plaintiff's “compensation dropped from $197, 000 in 2015 to $163, 000 last year.” In an article printed on July 17, 2017, the Chairman of the City Council Committee on Civil Service and Labor, I. Daneek Miller, called for Plaintiff's firing. The Demotion, coupled with the allegations in the Consent Decree and negative publicity, destroyed Plaintiff's opportunities for advancement in the DOT and hurt his job prospects outside the DOT.

         C. The Flatlands Yard Incident

         On approximately June 26, 2017, shortly after the first article about the Consent Decree appeared in The Chief, Plaintiff was served with a Notice of Complaint, which states that Plaintiff had been accused of “retaliation” by his former coworkers. The Notice of Complaint states, in relevant part:

On June 19, 2017, the New York City Department of Transportation's Office of Equal Employment Opportunity received a complaint against you alleging unlawful retaliation and has opened an investigation in connection with the complaint. In sum, the allegation contained in the complaint is that you have contacted DOT employees in connection with their participation in the lawsuit U.S.A. v. City of New York. Specifically, it is alleged that you appeared at Flatlands Yard on June 16, 2017 and spoke to DOT employees regarding the consent decree executed in U.S.A. v. City of New York, including speaking with individuals who are identified as Claimants in that action.

         On July 19, 2017, Plaintiffs attorney sent a letter to Defendant Trottenberg, in which Plaintiff denied all allegations of wrongdoing. On July 24, 2017, The Chief published an account of Plaintiffs attorney's letter. Then, on approximately September 15, 2017, Plaintiff received a further letter stating that the EEO had finished its investigation, and found that the claims of retaliation were substantiated. On January 30, 2018, Plaintiff received a Notice of Informal Conference, notifying him that the charges against him would be adjudicated by the DOT, Office of the Advocate.

         The Notice of Informal Conference further informed Plaintiff that if he did not accept the Conference Leader's decision, he would have the option of proceeding with an alternative hearing pursuant to § 75 of the New York Civil Service Law. The informal conference was scheduled for February 14, 2018. The Notice of Informal Conference charged Plaintiff with (1) going to the Flatlands Yard facility on June 16, 2017, while on a leave of absence, and having no official business at the facility; (2) questioning subordinate minority employees at Flatlands Yard about their participation in the Consent Decree and whether they testified against him and (3) describing to subordinate minority employees what their specific awards were under the Consent Decree.

         II. STANDARD

         To survive a motion to dismiss under Rule 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). On a Rule 12(b)(6) motion, “all factual allegations in the complaint are accepted as true and all inferences are drawn in the plaintiff's favor.” Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015); accord In re Neurotrope, Inc. Sec. Litig., No. 17 Civ. 3718, 2018 WL 2561024, at *3 (S.D.N.Y. June 4, 2018).

         III. ...


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