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Mohan v. City of New York

United States District Court, S.D. New York

August 3, 2018

MARIE MOHAN, Plaintiff,



         Plaintiff Marie Mohan importunes this Court for relief against the City of New York (the “City”), Seunghwan Kim, Vincent Rivera, and Michael Aaronson (together with Kim and Rivera, the “Individual Defendants, ” and collectively with the City, “Defendants”), claiming the creation of a hostile work environment, as well as discrimination and retaliation, during Plaintiff's employment at the New York City Comptroller's Office (the “Comptroller's Office”). The operative pleading in this case, Plaintiff's Third Amended Complaint (or “TAC”), advances claims under 42 U.S.C. §§ 1981 and 1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; New York Civil Service Law § 75-b; and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101-8-131 (“NYCHRL”). Defendants have moved to dismiss the TAC, arguing procedural and pleading deficiencies. For the reasons that follow, the Court dismisses Plaintiff's NYCHRL claims without prejudice, and her remaining claims with prejudice.


         A. Factual Background

         Despite having had three opportunities to amend her complaint, Plaintiff is strikingly imprecise in alleging the roles of the individuals involved in Plaintiff's claims, their respective job duties, and even their interactions with her. What is more, the events allegedly underlying Plaintiff's claims are sporadic and often disjointed. With those caveats in mind, the Court proceeds to discuss Plaintiff's factual allegations in chronological order.

         1. The Parties

         Plaintiff is “an African-American female of Haitian descent.” (TAC ¶ 7). She began her employment at the Comptroller's Office on or about March 3, 1997, with the title “Claims Specialist Level 2.” (Id. at ¶¶ 16-17). Plaintiff was subsequently promoted in May 1999 after roughly two years of work to the title of “Claims Manager/Administrative Claims Examiner.” (Id. at ¶ 20). Plaintiff held this title for over 15 years until, as relevant to many of her claims, she was demoted in January 2016. (Id. at ¶ 21).

         Defendants consist of the City of New York, within which sits the Comptroller's Office; and three individuals, each of whom served as Plaintiff's supervisor in some capacity during her tenure at the Comptroller's Office. Rivera served as Plaintiff's direct supervisor from the time of her transfer to the Department of Education Team[2] in December 2013 until Rivera's eventual retirement in July 2016. (TAC ¶¶ 12, 15). Aaronson served as Rivera's direct supervisor at all times relevant to Plaintiff's Complaint. (Id. at ¶ 59). Plaintiff alleges that in this position, Aaronson had the ability to transfer staff to different divisions, to assign staff to physical cubicles, and to complete job performance evaluations for Division Chiefs. (Id. at ¶¶ 25, 41, 44). Kim held the position of Assistant Comptroller during the relevant period. (Id. at ¶ 10).[3]

         2. Plaintiff's 2013 Administrative Claims

         Plaintiff's earliest grievances in this action stem from administrative claims for discrimination that she filed on or about August 23, 2013, jointly with the New York State Division of Human Rights (“SDHR”) and the Equal Employment Opportunity Commission (“EEOC”). (TAC ¶ 22). Although the TAC does not offer any detail as to what catalyzed those claims, it recites that the alleged discrimination was “based upon race/color, and retaliation for opposing unlawful employment action.” (Id.). Defendant Michael Aaronson is the only one of the current defendants who is also named in the 2013 filings. (Id. at ¶ 23).

         Several months after filing the SDHR and EEOC charges, in December 2013, Plaintiff was transferred within the Comptroller's Office from the No-Fault Division to the Department of Education Team within the Bureau of Law and Adjustment. (TAC ¶ 25). This transfer occurred over Plaintiff's objection, which she explains was predicated on a fear of retaliation by supervisors in the Bureau of Law and Adjustment. (Id.).[4] Following the transfer, Plaintiff complained to Comptroller John Liu that the transfer itself was retaliatory. (Id. at ¶ 26).

         In January 2014, while Plaintiff's administrative claims were pending, Aaronson assigned Karen Cohen - an individual named in Plaintiff's administrative claims - to a cubicle adjacent to Plaintiff's. (TAC ¶¶ 23, 44). According to Plaintiff, Cohen was not a member of Plaintiff's unit, “and there were other available cubicles at the time where Aaronson could have assigned Ms. Cohen.” (Id. at ¶ 44). Plaintiff alleges that she “could not do anything in her work cubicle without Ms. Cohen knowing, ” and that Cohen often stood up in her cubicle to observe Plaintiff throughout the workday. (Id. at ¶ 45). Plaintiff found Cohen's actions to be “very unsettling, ” and voiced her discomfort to Defendant Aaronson via email. (Id. at ¶ 46). Despite her complaint, Plaintiff remained in the same situation until July 2014, when Cohen left the Comptroller's Office. (Id. at ¶ 49). During this period, it was “very stressful” for Plaintiff to go into the office. (Id.).

         Ultimately, the SDHR dismissed Plaintiff's charge on or about June 2, 2014, citing “insufficient evidence to support a finding of probable cause for the alleged discrimination.” (TAC ¶ 24).

         3. The Alleged Failure to Complete Performance Evaluations

         Plaintiff also complains about her failure to receive annual job performance evaluations for the years 2011 through 2014, even though the Comptroller's Office maintained a “practice and policy” of completing such evaluations. (TAC ¶¶ 41-42). In or about August 2014, Plaintiff complained of the absence of such evaluations in her personnel file via email to Assistant Comptroller Amedeo D'Angelo and copied Aaronson on the message. (Id. at ¶ 51).

         In or about 2015, Plaintiff again voiced her concerns regarding the absence of performance evaluations, this time to her supervisor, Debra Sencer. (TAC ¶ 41). Plaintiff was advised that until Aaronson completed the evaluations for the Division Chiefs, no evaluations for staff in the No-Fault Division would be completed. (Id.). Plaintiff alleges that at the Comptroller's Office, in the absence “of a job performance evaluation, ” an employee would be in the “unenviable position of not being seriously considered for promotions, certain job assignments, or bonuses.” (Id. at ¶ 43).[5]

         4. Rivera's Alleged Advances Toward Plaintiff

         When Plaintiff was transferred to the Department of Education Team in December 2013, Rivera, who was a supervisor in Plaintiff's new division, “began complaining to Mohan that he was not very happy with his domestic situation[.]” (TAC ¶ 28). Additionally, Rivera “informed Mohan that he would soon retire and, as a result would not need some of the personal equipment which he had at the office[.]” (Id. at ¶ 31). Over the course of the ensuing nine months, Rivera began giving Plaintiff items he held in his office, which gifts Plaintiff accepted. (Id. at ¶ 32). But after giving Plaintiff a coffee maker in the third quarter of 2015, Rivera announced to Plaintiff that “he had a sexual interest in [her]”; Plaintiff rebuffed this advance, stating “in very clear terms that she would not engage in sexual relations with [him.]” (Id. at ¶¶ 33-35).

         “A few days after Rivera openly expressed his desire to have a sexual relationship with Mohan, Rivera told Mohan to ‘forget' that they ever had the conversation about his sexual desire[.]” (TAC ¶ 36). But according to Plaintiff, the damage was done: Not long after Plaintiff rebuffed Rivera, he “began nitpicking [Plaintiff]'s work” and “became much more critical of Mohan's work at the office, a problem which Mohan never had when she began working under Rivera[.]” (Id. at ¶ 37). Plaintiff claims these events caused her “great mental anguish.” (Id. at ¶ 38).

         5. Plaintiff's 2015 Complaint

         In September 2015, while still working in the Department of Education Team under Rivera, Plaintiff voiced to Kim and Aaronson her belief that claims submitted to the Department of Education Team were being mishandled. (TAC ¶ 57). Specifically, Plaintiff related that “[c]laims in the Department of Education Team were not properly investigated before settlement, ” and that the “beneficiaries of the payments coming from these mishandled claims were Whites and the [rumors] in the office [were] that the payment beneficiaries were politically connected.” (Id. at ¶¶ 55-56).

         Shortly after Plaintiff made this report, “Mike Reder, a Claims Specialist, issued an instruction to Mohan, a Claims Manager, at the behest of Rivera and William Kuehl.” (TAC ¶ 58).[6] The TAC offers no insight into the content of this instruction, save for Plaintiff's allegation that she found it “very offensive” and complained of it to a representative of the union to which Reder belonged, AFSCME District Council (“DC”) 37. (Id. at ¶ 60). Additionally, Plaintiff sent an email detailing Reder's conduct to Rivera and William Kuehl. (Id. at ¶ 61). “Neither Rivera nor Mr. Kuehl ever responded to [Plaintiff's] email on the subject.” (Id.). Plaintiff adds that at the time of the offending instruction, Aaronson was Rivera's immediate supervisor, and she surmises that “Reder would not have taken the aforesaid actions without the prior encouragement or acquiescence of Aaronson and Rivera.” (Id. at ¶ 59).

         Following the incident with Reder, after September 24, 2015, Plaintiff began receiving a “far [lower] number of claims” in her work at the Comptroller's Office. (TAC ¶ 62). Plaintiff reported this development in an email to Kevin Jordan, [7] copying Rivera and Aaronson. (Id.). Also on or about September 24, 2015, Rivera called a meeting with Plaintiff, during which he instructed her “not to write notes or comments regarding the identification of third-party claims prior to releasing the claims to be worked on by Claims Specialists Level 3.” (Id. at ¶ 63). When Plaintiff objected to this directive, “Rivera became very agitated” and refused Plaintiff's request to put the directive in writing. (Id. at ¶ 65). On or about September 25, 2015, Plaintiff “sent an email to Aaronson and cc'd Kim detailing some of these things.” (Id. at ¶ 66).

         On October 8, 2015, following the episode with Rivera, Plaintiff met with Allen Fitzer of the Comptroller's General Counsel's Office to discuss Plaintiff's refusal to follow Rivera's instructions. (TAC ¶ 69). Plaintiff recalls that the meeting involved a potential charge of insubordination. (Id.). She clarifies, however, that she “was never found guilty of any act of insubordination, ” “[n]or was [she] given any formal written charge of insubordination.” (Id. at ¶ 74).

         6. Plaintiff's 2016 Demotion and Subsequent Events

         The key employment action involving Plaintiff occurred in January 2016. On or about January 11, 2016, Kim held a meeting with Plaintiff in which he notified her that “as part of the restructuring of the department, Mohan was being demoted from her Claims Manager/Administrative Claims Examiner title.” (TAC ¶ 75). “Kim also told Mohan at the same meeting that Mohan's salary was being reduced by about $5, 000 and that Mohan was being transferred to the Affirmative Unit.” (Id.).

         Following her demotion, Plaintiff complained that Kim was targeting her because of her race - she was the only non-white woman in her unit, and the only person in the unit whose salary was being reduced as a result of departmental restructuring. (TAC ¶ 76). As evidence of Kim's racial animus, Plaintiff notes that a year prior to her demotion, in or about February 2015, “Kim was known to have told” the Chief of the Property Damage Division “that there was a ‘Black guy' that he and upper management did not like in the Property Damage Division” and that the Chief “should get rid of” him. (Id. at ¶ 78).[8] Additionally, Plaintiff alleges that, “[u]pon information and belief, ” Maria Giordano, a White female with the same title as Plaintiff, had not been demoted despite being “banned from the Brooklyn and Bronx courthouses from negotiating and settling claims with the NYC Law Department due to her persistent disrespect for judges and plaintiffs' attorneys, ” and despite having had “the Hearing Division and Sidewalk/Personal Injury Teams taken away from her[.]” (Id. at ¶ 97). Plaintiff attributes the difference in treatment between herself and Giordano to race. (Id. at ¶ 99).

         On or about March 14, 2016, “Rivera gave [Plaintiff] a below average job performance [e]valuation, ” which Plaintiff contends was intended “to retroactively justify” her January demotion. (TAC ¶ 79). Still, and somewhat confusingly, the TAC recites that “no evaluation of Mohan was done for 2015.” (Id.). Subsequently, during a meeting on April 25, 2016, Kim advised Plaintiff of his intention to reinstate her, and expressed contrition that he had “made a mistake about [Plaintiff]'s title and salary.” (Id. at ¶ 80). “Kim further stated that Rivera was about to retire and … Kim[] would make sure that no negative evaluation … would be put in [Plaintiff]'s personnel file.” (Id.). Kim asked Plaintiff and the other attendee of the meeting, DC 37 Local Union Representative Juliet White, to keep what was said at the meeting confidential. (Id.).

         In point of fact, Plaintiff's salary and title were never restored. (TAC ¶ 82).[9] To the contrary, Plaintiff alleges that White received a raise of over $4, 000 after this suit commenced, which raise Plaintiff claims was “intended to … dissuade [White] from testifying truthfully” about what Kim said at the April 2016 meeting. (Id. at ¶¶ 83-84).

         Following Rivera's retirement in or about August 2016, “it was discovered that [Plaintiff's] complaints about the mismanagement and mishandling of claims were in fact substantiated.” (TAC ¶ 85).[10] In response, Plaintiff “sent an email to Khanim Babayeva, an employee of the Internal Audit Unit of the General Counsel's Office … specifically invoking protection under the New York Whistleblower Protection Law.” (Id. at ¶ 88). Subsequently, on or about December 29, 2016, Plaintiff filed discrimination and retaliation claims with the EEOC and a whistleblower complaint with the New York City Department of Investigation (“DOI”). (Id. at ¶¶ 86-87). In some tension with her current claims, Plaintiff's DOI complaint attributes her January 2016 demotion to her identification of the alleged mismanagement of claims in September 2015, and not to her race or national origin. (Id. at ¶ 87).

         “On February 22, 2017, the EEOC issued a Notice of Right to Sue letter to Mohan regarding her EEOC Title VII filing.” (TAC ¶ 89). The TAC provides no similar information regarding the resolution of the DOI complaint.

         7. The 2017 Administrative Claims Examiner Exam

         Finally, Plaintiff alleges that in or about November 2017, the City of New York “published a Notice of Examination for [the] Administrative Claims Examiner position[.]” (TAC ¶ 123). For Plaintiff, being promoted to Administrative Claims Examiner would entail a corresponding raise in salary. (See Id. at ¶ 128). Plaintiff “submitted the necessary paperwork in a timely manner to take the examination, ” but received a Disqualification Notice indicating that she did not qualify to take the exam. (Id. at ¶¶ 125-26). Plaintiff later unsuccessfully appealed her disqualification. (Id. at ¶ 126).

         The Notice of Examination states that the exam is “only for employees provisionally employed in the title Administrative Claim Examiner, ” and further provides, in a section entitled “Minimum Qualification and New York City Employment Requirements, ” that applicants “must be currently employed by New York City as a provisional Administrative Claim Examiner and have served as a provisional Administrative Claim Examiner for at least two (2) years[.]” (“Notice of Examination” (Def. Supp. Decl., Ex. E (Dkt. #49-1))). Despite specific allegations in the TAC that she was demoted from the position of “Claims Manager/Administrative Claims Examiner” (TAC ¶ 75), Plaintiff contends that her disqualification was not the result of her lacking the requisite employment level to qualify for the exam, but rather was the result of a concerted effort to retaliate against her for filing the instant lawsuit (id. at ¶ 127). In this regard, Plaintiff alleges that “Kim and the Comptroller were in contact with those within [the City of New York] who were responsible for” determining the qualification requirements, and that the two men “had some input with regard to the qualification for the examination.” (Id. at ¶ 124). From this, Plaintiff posits that because Kim was “aware that [Plaintiff] did not hold the Administrative Claim Examiner title” at the time of submitting her application for the examination, the examination requirements were “written … in such a way to exclude” her specifically. (Id. at ¶ 127).

         B. Procedural Background

         On May 21, 2017, Plaintiff filed the initial complaint in this action. (Dkt. #1). On September 20, 2017, Plaintiff amended her complaint. (Dkt. #18). On October 4, 2017, Plaintiff attempted to file a Second Amended Complaint (“SAC”). (Dkt. #21). The SAC was deemed deficient, however, because Plaintiff had not received the Court's leave to file the SAC as required under Federal Rule of Civil Procedure 15(a)(2). Plaintiff therefore sought leave to file the SAC on October 6, 2017, which application the Court granted that same day. (Dkt. #22-23).

         Following Plaintiff's refiling of the SAC, on October 20, 2017, Defendants requested a conference in anticipation of moving to dismiss the SAC, a request to which Plaintiff did not respond. (Dkt. #27-28). The Court granted the request on October 30, 2017, and held the pre-motion conference on December 22, 2017, at which conference the Court issued a briefing schedule for Defendants' motion to dismiss. (Dkt. #28, 35). On February 2, 2018, in accordance with the briefing schedule, Defendants submitted their motion to dismiss the SAC, along with supporting papers. (Dkt. #32-33).

         The Court thereafter granted a request by Plaintiff for an extension of time to respond to the motion. (Dkt. #37-38). Rather than filing a brief in opposition, Plaintiff again amended her complaint, submitting the TAC. (Dkt. #39). In response, the Court issued an order directing Plaintiff to show cause why the Court should not strike the TAC (Dkt. #40), and Defendants later indicated that they had not consented to Plaintiff filing the TAC (Dkt. #41). Plaintiff submitted her response to the Court's order to show cause on March 20, 2018. (Dkt. #42). That same day, the Court allowed Plaintiff to refile the TAC, and also allowed Defendants to supplement their motion to dismiss in order to address any new issues raised in the amended pleading. (Dkt. #43).

         Plaintiff responded to the Court's March 20 Order by submitting still another amended complaint on March 21, 2018. Defendants submitted a letter to the Court on March 22, 2018, objecting to Plaintiff's filing of, in essence, a Fourth Amended Complaint, and seeking sanctions. (Dkt. #45). After receiving Plaintiff's response to Defendants' letter (Dkt. #46), the Court struck the Fourth ...

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