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diminishing responsibilities of employee
Summary of this case from Fullard v. City of New YorkOpinion
00 CIV. 7417 (DLC)
December 20, 2001
For Plaintiff: Rick Ostrove, Leeds Morelli Brown, P.C., Carle Place, NY.
For Defendants: Paul Marks, Office of the Corporation Counsel of the City of New York New York, NY.
OPINION AND ORDER
Plaintiff Russell Bogart ("Bogart") filed this employment discrimination action on September 29, 2000, alleging that his employer, the New York City Law Department ("Law Department"), maintained a hostile work environment of religious and ethnic discrimination. Bogart now seeks leave to amend his complaint to add six additional defendants and three causes of action, as well as to clarify certain facts regarding his claims. The defendants oppose the addition of three of these defendants and the addition of certain claims, on the ground that these particular amendments would be futile. For the reasons set forth below, the motion to amend the complaint is granted in part.
BACKGROUND
The amended complaint alleges principally that Bogart's supervisor, defendant Gail Donoghue ("Donoghue"), made anti-Semitic remarks during an extended meeting on September 30, 1999, and that the Law Department retaliated against Bogart after he complained. Bogart is a Jewish male. He joined the Law Department as an Assistant Corporation Counsel in 1996, and was assigned to the Tort Division. In October 1998, he was transferred to the Special Federal Litigation Division ("Litigation Division"). Bogart was transferred to the Appeals Division in February 2000, where he remained until he was discharged from the Law Department on April 27, 2001.
Donoghue is the Chief of the Litigation Division. On September 30, 1999, Bogart and Donoghue met in Donoghue's office to discuss "work related issues," including Bogart's concerns about the Litigation Division and his caseload. The complaint alleges that during the meeting, Donoghue subjected Mr. Bogart to a "tirade of anti-Semitic and derogatory remarks directed towards being Jewish." The anti-Semitic statements included remarks about the Holocaust and that Jews have too much power in the Law Department and in New York City. When Bogart said that he intended to report Donoghue's anti-Semitic and racist comments, Donoghue threatened to harm him and attempted to fire him that evening.
On October 19, 1999, Bogart delivered a written complaint to the office of Michael Hess ("Hess"), the Corporation Counsel, in which he detailed the September 30, 1999 incident and requested that Hess investigate. Hess did not respond and Bogart filed a charge with the Equal Employment Opportunity Commission ("EEOC") on December 10, 1999.
Bogart alleges that, as a result of the September 30, 1999 incident and the October 19, 1999 letter to Hess, Donoghue "began a campaign of retaliatory harassment against Bogart," which included yelling at him, yawning at him with her mouth open, making condescending remarks, refusing to speak with him, ignoring his requests to discuss his cases, failing to respond to time-sensitive e-mails and voice-mail messages, and generally making work-related interactions difficult and uncomfortable for Bogart. On November 18, 1999, at a meeting Bogart attended with two other attorneys, Donoghue "directed abusive language" at Bogart, "screamed at him and cursed excessively."
Plaintiff claims that, as a result of his EEOC complaint, he was transferred to the Appeals Division in February 2000. Defendants Larry Sonnenshein ("Sonnenshein"), Bogart's supervisor in the Appeals Division, and Leonard Koerner ("Koerner"), the Chief of the Appeals Division, told Bogart that his transfer was the result of his "dishonest and manipulative complaint" and that the transfer would not be permanent. Bogart claims that he was subjected to further retaliation, including verbal harassment by Sonnenshein and Koerner, physical isolation from the Appeals Division because his office was on a different floor, and the assignment of more complex cases without proper supervision or support. Sonnenshein and Koerner also assigned Bogart an appeal in a personal injury action against the City of New York shortly after Bogart served them with interrogatories in this action on April 9, 2001. When Bogart expressed his concern that this would be a conflict of interest for him — Bogart had filed a personal injury action "against a private proprietor concerning his knee reconstruction surgery" — Sonnenshein and Koerner accused him of insubordination.
Bogart does not allege that there was any overlap in parties or facts between the two lawsuits.
Bogart "sought the intervention of other senior members of the Law Department," as he believed that Sonnenshein and Koerner were retaliating against him for complaining about his employment discrimination. Bogart forwarded e-mail messages from Sonnenshein about the alleged conflict of interest to Linda Howard, the Equal Employment Opportunity Officer for the Law Department, G. Foster Mills, the Managing Attorney for the Law Department, and Daniel Connolly, the Disciplinary Counsel for the Law Department. During a meeting on April 27, 2001 with Koerner and Mills, Mills screamed at him and accused him of insubordination. Bogart was fired on April 27, 2001.
In his original complaint, Bogart alleged causes of action pursuant to 42 U.S.C. § 2000(e) ("Title VII"), 42 U.S.C. § 1981 ("Section 1981") and 1983 ("Section 1983"), and various state law claims. He seeks to add claims that the defendants (1) retaliated against him and discharged him in violation of his First Amendment right to protected speech; (2) violated the Due Process Clause of the Fourteenth Amendment by discharging him "for false and stigmatizing reasons;" and (3) wrongfully discharged him in violation of a supervening public policy under New York State law. Bogart also seeks to add six defendants: Michael Hess, the Corporation Counsel; G. Foster Mills, the Law Department's Managing Attorney; Leonard Koerner, the Chief of the Appeals Division; Larry Sonnenshein, plaintiff's former supervisor in the Appeals Division; Daniel Connolly, Special Counsel to the Law Department; and Linda Howard, the Law Department's Equal Employment Opportunity Officer.
DISCUSSION
Under Rule 15(a), Fed.R.Civ.P., once a responsive pleading has been served, a party may amend its pleadings "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." The Supreme Court has emphasized that amendment should normally be permitted and that a refusal to grant leave must be justified by grounds such as undue delay, bad faith, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962). See also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
The defendants oppose certain of the amendments on grounds of futility. "One appropriate basis for denying leave to amend is that the proposed amendment would be futile because it fails to state a claim." Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001). See also Koehler v. Bank of Bermuda (New York) Ltd., 209 F.3d 130, 138 (2d Cir. 2000). The adequacy of an amendment "is to be judged by the same standards as those governing the adequacy of a filed pleading." Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Thus, the Court should only deny leave to amend for failure to state a claim if the complaint as amended would be subject to dismissal under Rule 12(b)(6), Fed.R.Civ.P. See id.
A court may dismiss an action pursuant to Rule 12(b)(6) only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
I. Parties
A. Law Department
The Law Department is not a suable entity. N.Y. City Charter Ch. 17, § 396. Accordingly, the claims against the Law Department are dismissed. See, e.g., Williams v. Department of Corrections, No. 00 Civ. 1928 (LTS), 2001 WL 1301739, at *5 (S.D.N.Y. Oct. 22, 2001) (Department of Corrections); Uddin v. New York City, Nos. 99 Civ. 5843 (GEL), 00 Civ. 3417 (GEL), 2001 WL 15694, at *1 n. 1 (S.D.N.Y. Jan. 8, 2001) (Administration for Children's Services); Bonner v. New York City Police Dept., No. 99 Civ. 3207 (AGS), 2000 WL 1171150, at *2 (S.D.N.Y. Aug. 17, 2000) (Police Department and Department of Corrections) (collecting cases).
Plaintiff does not cite any legal authority which would allow him to maintain a suit against a city agency.
B. Individual Defendants
The defendants assert that the proposed amended complaint fails to state a claim against Michael Hess, Daniel Connolly, or Linda Howard under Sections 1981 and 1983 because it does not allege that they were personally involved in the alleged deprivation of plaintiff's civil rights. A defendant will be liable for damages under Section 1983 only when he is personally involved in the violation. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). "For this reason, the doctrine of respondeat superior cannot be used to establish liability under Section 1983." Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999). Supervisors are personally involved in the constitutional torts of those whom they supervise when:
"(1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring."
Johnson, 239 F.3d at 254 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Individual liability exists under Section 1981, but the plaintiff must show "'some affirmative link to causally connect the actor with the discriminatory action.'" Whidbee v. Garzarelli Food Specialities, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (citation omitted). The claim must be "'predicated on the actor's personal involvement.'" Id. (citation omitted).
Michael Hess
Plaintiff alleges that Hess participated in the discrimination by not investigating Bogart's October 19, 1999 complaint made to Hess about Donoghue. This allegation is sufficient to state a claim against Hess. See Johnson, 239 F.3d at 254.
Daniel Connolly
Plaintiff alleges that Connolly oversees the Litigation Division, and was involved in his transfer to the Appeals Division and his mistreatment there. Bogart has not, however, alleged any facts to support Connolly's personal involvement in or awareness of the alleged discrimination and retaliation against Bogart.
Plaintiff also alleges that Connolly failed to respond to the "conflict of interest" issues when he sent Connolly a series of e-mail messages between Bogart and Sonnenshein in which Bogart objected to being assigned an appeal in a tort case. As described above, Bogart contends he should not have been assigned to work as an attorney on an appeal in a personal injury case because he was a plaintiff in his own personal injury action, albeit one entirely unrelated to either the Law Department or the appeal to which he was assigned. Plaintiff does not allege that the "conflict of interest" issues were constitutional violations in and of themselves or that Connolly failed to investigate any constitutional violation of which he was informed. Nor does he explain how Connolly failed to "act properly." Plaintiff's allegations are thus insufficient to state a claim against Connolly.
Plaintiff requests that the Court consider the allegations he made against Connolly in his EEOC affidavit. In that affidavit, Bogart describes an incident which took place in March 1999, six months before the September 30, 1999 incident at issue in this case. Further, Bogart's affidavit does not allege any personal involvement by Connolly in any wrongful action. In the affidavit, Bogart asserts that Donoghue heard him talking to another person about "criminal harassment" he had been facing (apparently from someone not associated with the Law Department), and Donoghue said that Bogart would not be able to date for several months because of the threats that had been made against him. When Bogart informed Connolly of Donoghue's statement, Connolly "advised [him] that Ms. Donoghue snapped because of the stress of the threats against [him] and conceded that [he] could have demanded discipline against her." This does not allege personal involvement by Connolly in any constitutional violation.
Linda Howard
Bogart alleges that as the Law Department's EEO Officer, Howard "bears joint responsibility for all aspects of the Law Department's cover-up and retaliation against the plaintiff, for failing to promulgate effective procedures to prevent such misconduct, and for the improper promotion, retention, supervision and training of Donoghue with respect to discrimination issues." He also alleges that he sent the e-mail messages regarding the alleged conflict of interest issues to Howard. The amended complaint does not allege that Howard directly participated in the alleged discrimination or retaliation nor that she was even aware of the discrimination against Bogart. Plaintiff's conclusory assertions seek to hold Howard liable merely as a supervisor and are insufficient to state a claim.
II. Claims
A. Hostile Work Environment
The defendants assert that the amended complaint fails to state a claim of discrimination based on a hostile work environment. A hostile work environment exists where the workplace is "permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted). See also Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001). The defendants argue that the sole basis of Bogart's discrimination claim is the alleged verbal harassment by Donoghue during a private meeting on September 30, 1999. A single incident of harassment may create a hostile environment if the alleged conduct is "extraordinarily severe." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). While the defendants contend that this single incident cannot be found to be "extraordinarily severe," Bogart may be able to prove that such alleged conduct by his supervisor was so severe as to alter his work environment. See Torres v. Pisano, 116 F.3d 625, 631-33 (2d Cir. 1997). In any event, plaintiff complains of more than a single incident. Bogart alleges that Donoghue screamed at him at another meeting with two other attorneys present and treated him in a consistently demeaning manner after September 30.
The standard is the same for a claim brought under Section 1981, see Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000), Section 1983, see Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996), and the New York Human Rights Law, see Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999).
Defendants further argue that plaintiff cannot maintain his hostile work environment claim because he does not allege that Donoghue touched him, physically threatened him, or that he felt physically threatened, and does not allege that he suffered any psychological harm. While physically threatening or intimidating conduct and psychological harm are factors to consider in determining whether plaintiff's work environment was hostile, they are not the only factors.
In determining whether a work environment is sufficiently hostile or abusive to violate Title VII, we "'look at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"
Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). See Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 437 (2d Cir. 1999). Moreover, as the
Second Circuit explained:
"The effect on the employee's psychological well-being is relevant to determining whether the plaintiff actually found the environment abusive," though no one factor is determinative under the objective standard. The victim's psychological well-being need not be damaged in order to find a hostile work environment; "[t]he fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases."
Fitzgerald, 251 F.3d at 358 (citations omitted) (emphasis supplied). Plaintiff's failure to allege physical threats or psychological harm is not fatal to his hostile work environment claim.
Finally, defendants assert that, even if the allegations in the amended complaint were sufficient to show that Bogart's work environment was objectively hostile, plaintiff's discrimination claim must fail because he does not assert that the alleged harassment altered his work environment. This argument is without merit. Plaintiff alleges that he was subjected to verbal harassment by his supervisors, was physically isolated from the rest of the Appeals Division, and that his work environment became "intolerable." Plaintiff's hostile work environment claim cannot be dismissed pursuant to Rule 12(b)(6).
B. First Amendment
The plaintiff alleges that the defendants violated his First Amendment right to be free from retaliation for his "protests" against the discriminatory conduct he experienced in the Law Department. The framework for any analysis of retaliation against a government employee for exercise of First Amendment rights is the balancing test set out in Pickering v. Board of Education, 391 U.S. 563 (1968). United States v. National Treasury Employees Union, 513 U.S. 454, 465 (1995). A public employee's freedom of speech is not absolute, but must be balanced against the government's legitimate interest in promoting the efficiency of the public services it performs through its employees. Id. at 465-66. "[W]hile the government enjoys significantly greater latitude when it acts in its capacity as employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from punishing its employees in retaliation for the content of their protected speech." Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001). To be actionable, however, a claim of illegal retaliation requires a plaintiff to establish that what he said or did "constituted speech on a matter of public concern." Id. See also Knight v. Connecticut Dep't of Pub. Health, — F.3d. — , 2001 WL 1580134, at *4 (2d Cir. Dec. 12, 2001).
None of plaintiff's allegations touch on matters of public concern. All of Bogart's protests about his treatment refer only to his own employment situation. As the Supreme Court explained, "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick v. Myers, 461 U.S. 138, 147 (1983).
Bogart alleges only two incidents which he claims raise matters of public concern. First, he alleges that Donoghue's "reckless views about racial and religious minorities constituted a pressing public concern." Bogart's First Amendment claim must be based on his own protected speech. Second, he alleges that his own "reiterating of Donoghue's statements categorizing the plaintiff as another 'Jewish attorney'" who would inevitably betray the police department "raises legitimate public concerns with regards to Jewish attorneys defending the Police Department in civil rights litigation." The repetition of these slurs does not transform Bogart's speech into speech on a matter of public concern. As alleged in the complaint, Bogart repeated these remarks to protest his own treatment and not to speak out on a practice of discrimination against Jewish employees at the Law Department. See Ezekwo v. NYC Health Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991) (allegations of discrimination based on gender, race, and national origin within residency program not matter of public concern because complaints were "personal in nature"). Where, as here, the complaints largely relate to the employee's own situation, there is no First Amendment violation. Id. See Saulpaugh v. Monroe Comm. Hosp., 4 F.3d 134, 143 (2d Cir. 1993) (where plaintiff did not allege "system-wide discrimination," not matter of public concern). See also Tiltti v. Weiss, 155 F.3d 596, 602-03 (2d Cir. 1998) (complaints about working conditions were not made to protect public welfare and were thus not matters of public concern). Compare Gorman-Bakos v. Cornell Coop. Extension of Schenectady Co., 252 F.3d 545, 553 n. 4 (2d Cir. 2001) (speech regarding mismanagement of government funds and safety of young children implicated matters of public concern); Hale v. Mann, 219 F.3d 61, 71 (2d Cir. 2000) (proper administration of state facilities for the incarceration of juveniles matter of public concern); Morris v. Landau, 196 F.3d 102, 111 (2d Cir. 1999) (speech on crime rates, police staffing, equipment shortages and related budgetary matters involve matters of public concern). Accordingly, Bogart's First Amendment claim must be dismissed.
The cases cited by Bogart do not support a different result. See, e.g., Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 140 (2d Cir. 1999) (allegations of improper and corrupt behavior by high-level officials were matters of public concern); Lewis v. Cohen, 165 F.3d 154, 164 (2d Cir. 1999) (speech seeking to maintain the viability of the state lottery and enhance public revenue implicates a matter of public concern); Shepard v. Beerman, 18 F.3d 147, 151 (2d Cir. 1994) (requiring district court to reconsider whether law clerk's speech exposing judicial misconduct addressed matter of public concern).
C. Fourteenth Amendment
In the amended complaint, Bogart alleges that the defendants deprived him of a liberty interest in violation of his procedural due process rights protected by the Fourteenth Amendment by (1) stating that the reason for the termination of plaintiff's employment was his insubordination, (2) issuing performance evaluations from the Litigation and Appeals Divisions that contain false statements, and (3) defaming plaintiff in the Law Department by advising employees that he filed a manipulative and deceitful complaint and invented all of the allegations in the complaint. Bogart requests a "name-clearing hearing" to expunge the information contained in his personnel file.
A procedural due process claim requires the plaintiff to show that state action infringed upon a property or liberty interest protected by due process and that the process received by the plaintiff was inadequate. See American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 n. 3 (1985). There is a recognized liberty interest "'to engage in any of the common occupations of life.'" Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). This interest, however, is not affected by every state action with respect to employment. "Special aggravating circumstances are needed to implicate a liberty interest." Id. The liberty interest protects against government actions that "serve as a significant impediment to [plaintiff's] pursuit of [his] profession." Jannsen v. Condo, 101 F.3d 14, 16 (2d Cir. 1996). Therefore, more than a "free-standing defamatory statement made by a state official about an employee" is required. Donato, 96 F.3d at 630. See Paul v. Davis, 424 U.S. 693, 701, 712 (1976); Morris v. Lindau, 196 F.3d 102, 114 (2d Cir. 1998). The accusations must denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to put a roadblock effectively in that employee's continued ability to practice his profession. Donato, 96 F.3d at 630-31. See Board of Regents v. Roth, 408 U.S. 564, 573 (1972). Importantly, stigmatizing statements "only implicate a liberty interest when there is also a public disclosure." Donato, 96 F.3d at 631. The requirement of public disclosure is "'satisfied where the stigmatizing charges are placed in the discharged employee's personnel file and are likely to be disclosed to prospective employers.'" Id. at 631 (citation omitted).
The memorandum placed in Bogart's personnel file — giving the reason for his discharge as insubordination — does not violate the Fourteenth Amendment. "An employee charged with derelictions largely within [his] own power to correct is not deprived of [a liberty] interest." Donato, 96 F.3d at 630. See O'Neill v. City of Auburn, 23 F.3d 685, 692 (2d Cir. 1994) (statements that plaintiff had "poor relationships" with state agencies, and that his work was not "up to par" and was "sloppy" were not stigmatizing because they describe problems within the employee's power to correct). Compare Donato, 96 F.3d at 631, 633 (extensively detailed lists of supposed professional failings which "go to the heart of her professional competence" implicate a liberty interest).
Similarly, the evaluations of Bogart's performance issued by the Litigation Division and the Appeals Division in August 2000, do not implicate a liberty interest. Among other reasons, they were not made in the course of Bogart's termination from employment. Donato, 96 F.3d at 630. See also Martz v. Incorporated Vill. of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) ("concurrent temporal link" between the defamation and the dismissal is necessary).
Finally, Bogart's allegation that the defendants defamed him within the Law Department by telling employees that plaintiff filed frivolous and false complaints against it also fails to implicate a liberty interest. There is no allegation that these comments were disclosed outside the Law Department or that they are likely to be disclosed to prospective employers. See Donato, 96 F.3d at 631; White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1063 (2d Cir. 1993). Accordingly, the amended complaint fails to state a claim for violation of the Fourteenth Amendment.
D. Retaliation — Defendants' Litigation Tactics
To state a claim for retaliation under Title VII, a plaintiff must demonstrate "(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). A "protected activity" is an action "taken to protest or oppose statutorily prohibited discrimination." Cruz, 202 F.3d at 566. An adverse employment action is a "'materially adverse change' in the terms and conditions of employment," including employment termination. Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citation omitted).
Bogart's state law retaliation claim is based on the New York Human Rights Law, N.Y. Exec. Law § 296(1)(e). The analysis of the retaliation claims under both federal and state law is the same. See McMenemy, 241 F.3d at 282 n. 1; Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996).
Bogart alleges that defendants retaliated against him for filing his EEOC complaint and for filing this lawsuit by, among other things, engaging in abusive litigation tactics. Bogart also asserts that these alleged litigation abuses were designed to intimidate plaintiff from exercising the federally protected rights he has asserted in this action. The alleged abusive litigation tactics employed by the defendants include (1) the Law Department's failure to investigate plaintiff's October 19, 1999 complaint to Michael Hess; (2) the Law Department's decision to represent Gail Donoghue; (3) defendants' creation of "an uneven playing field" by using City funds to defend themselves against this lawsuit; (4) serving plaintiff with "onerous" discovery requests and not extending his time to respond to them; (5) noticing plaintiff for a videotape deposition; and (6) not adjusting plaintiff's work schedule to accommodate the increasing amount of time he was spending on this lawsuit. While it is undisputed that Bogart's filing of an EEOC charge constituted participation in a protected activity, none of these incidents of alleged retaliation constitute adverse employment actions.
The defendants have not moved to dismiss plaintiff's retaliation claim based on his termination.
The only incidents of retaliation that relate to the terms and conditions of his employment are the defendants' refusal to decrease Bogart's duties at work to allow him more time for this litigation and their assignment to him of more complex cases. Neither is an adverse employment action. An employer is not required to decrease an employee's work load to allow an employee more time to work on a lawsuit against the employer. Furthermore, while diminishing the responsibilities of an employee may constitute an adverse employment action, giving an employee a chance to excel is not an adverse employment action. See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (describing adverse employment actions as termination, a decrease in salary, a less distinguished title, or significantly different responsibilities); Weeks v. New York State, — F.3d — , 2001 WL 1345057, at *4 (2d Cir. Oct. 31, 2001) (same); Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (suspension without pay); Henriquez v. The Times Herald Record, No. 97 Civ. 6176 (SHS), 1997 WL 732444, at *5 (S.D.N.Y. Nov. 25, 1997) (increase in overall workload). It is worth noting that the plaintiff has not alleged that the Law Department assigned him work at a skill level beyond that for which he had been educated and trained, or beyond that being performed by his peers. To the extent that Bogart alleges that the defendant failed to provide him with appropriate supervision and support for this complex work, those facts may be litigated in connection with Bogart's surviving hostile work environment claim. In sum, none of these allegations regarding defendants' alleged abusive tactics constitutes an adverse employment action.
E. New York Civil Rights Law
Bogart alleges that the defendants violated New York Civil Rights Law, Section 40-c. A plaintiff must first notify the Attorney General of the State of New York at or before commencing an action under Section 40-c. N.Y. Civil Rights Law § 40-d (McKinney 1992). "Failure to comply with that statutory prerequisite mandates dismissal of the claim." Shepard v. Frontier Comms. Servs., Inc., 92 F. Supp.2d 279, 287 (S.D.N Y Freudenthal, 726 N.Y.S.2d at 116 (emphasis supplied). 2000) (citing Silver v. Equitable Life Assurance Soc'y, 563 N.Y.S.2d 78, 80 (App.Div. 1990)). Because plaintiff concedes that he did not serve a timely notice upon the New York State Attorney General, this claim may not be brought.
Section 40-c provides that "no person shall because of race, creed, color, national origin, sex, marital status or disability . . . be subjected to any discrimination in his civil rights . . . by any other person or by any firm, corporation or institution." N.Y. Civil Rights Law § 40-c (McKinney 1992).
Plaintiff has provided no authority for his argument that the filing of a charge of discrimination with the United States EEOC satisfies the notice requirement of Section 40-d, N.Y. Civil Rights Law.
Plaintiff relies on Freudenthal v. County of Nassau, 726 N.Y.S.2d 116 (App.Div. 2001), to support his argument that service on the Attorney General is not required. Freudenthal addressed whether a plaintiff must file a notice of claim under other statutes — New York County Law § 542 and New York General Municipal Law § 50-i and § 50-e — and held that
it is unnecessary for a claimant to file a notice of claim with a municipality in connection with a claim pursuant to Executive Law § 296 alleging unlawful discriminatory practices where the claimant has elected to pursue redress with the administrative agency, the New York State Division of Human Rights, rather than through an action in a court of law.
F. Constructive Discharge
The defendants assert that the amended complaint fails to state a claim for constructive discharge because it is undisputed that plaintiff was fired on April 27, 2001. "An actual discharge, in the context of Title VII as in other contexts, occurs when the employer uses language or engages in conduct that 'would logically lead a prudent person to believe his tenure has been terminated.'" Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 88 (2d Cir. 1996) (citation omitted). On the other hand, constructive discharge of an employee occurs "when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." Fitzgerald, 251 F.3d at 357-58 (emphasis supplied) (citation omitted).
It is undisputed that on April 27, 2001, plaintiff was given the opportunity to resign in lieu of termination and chose to be terminated. Thus, because plaintiff was actually, and not constructively, discharged, he cannot maintain a claim for constructive discharge.
Almost a month after plaintiff's termination, plaintiff's counsel requested that plaintiff be permitted to resign in lieu of termination, and the Law Department allowed him to resign.
CONCLUSION
For the reasons stated, plaintiff's request for leave to amend the complaint is granted in part. Plaintiff's request to amend his complaint to add Daniel Connolly and Linda Howard as individual defendants and the Law Department is denied. Plaintiff's request to amend his complaint to add a First Amendment claim, a Fourteenth Amendment claim, a claim of retaliatory discrimination based on the defendants' litigation tactics, a claim under New York Civil Rights Law § 40-c, and a claim for constructive discharge, is denied. An amended pleading conforming with this Opinion shall be filed by January 11, 2002.
SO ORDERED.