United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, DISTRICT JUDGE
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
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.
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).
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 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).
Plaintiff's 2013 Administrative Claims
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).
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.). Following the transfer, Plaintiff
complained to Comptroller John Liu that the transfer itself
was retaliatory. (Id. at ¶ 26).
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.).
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).
The Alleged Failure to Complete Performance
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).
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).
Rivera's Alleged Advances Toward Plaintiff
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
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).
Plaintiff's 2015 Complaint
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).
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 ¶
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).
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,  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).
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).
Plaintiff's 2016 Demotion and Subsequent Events
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.).
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). 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 ¶
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.
point of fact, Plaintiff's salary and title were never
restored. (TAC ¶ 82). 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).
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). 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).
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.
The 2017 Administrative Claims Examiner Exam
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).
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).
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).
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).
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.
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 ...