Opinion
Index No. 155247/2021 Motion Seq. No. 001
07-12-2022
LEE MITCHELL, Plaintiff, v. THE CITY OF NEW YORK, CYNTHIA BRANN in her official capacity as the Commissioner of the New York City Department of Correction, and HAZEL JENNINGS in her official capacity as Chief of the Department of Correction, Defendants.
Unpublished Opinion
MOTION DATE 01/18/2022
DECISION+ ORDER ON MOTION
HON. LESLIE STROTH, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11,12,13,14 were read on this motion to 'DISMISS
Plaintiff Lee Mitchell (plaintiff), an African-American male formerly employed by the New York City Department of Correction (DOC), commenced this action stemming from his suspension from employment under the New York State Constitution, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). Defendants move, pursuant to CPLR 3211 (a) (7), to dismiss the complaint in its entirety. For the reasons set forth below, the motion is granted.
BACKGROUND
Plaintiff is a former uniform staff member of DOC, who held the rank of assistant deputy warden, and is of "Black/African-American descent" (NY St Cts Elec Filing [NYSCEF] Doc No. 2, complaint, ¶¶ 4, 54). Plaintiff alleges that, in April 2017, the DOC announced its intention to reduce its workforce in accordance with the Lippmann Commission Report (id, ¶¶ 23-36). According to plaintiff, the Department's most recent publicly-available demographics report dated October 15, 2018 indicates that there are "69 Black uniform staff (71% of the [assistant deputy wardens] [ADWs] uniform staff," and that "[s]lightly more than 60% [are] Black" (id., ¶¶ 41, 44). He states that he brings this "action for relief for disparate .impact" (id, preliminary statement). Plaintiff further alleges that, during the course of his employment with DOC, he was "falsely suspended and accused of wrongdoing, which the Defendant quickly admitted was wrong" (id., ¶ 46, 50, 55, 60). According to the complaint, he was "the subject of fabricated and feigned claims of misconduct" (id, ¶¶ 47, 51, 56, 61). Plaintiff alleges that "[t]he fabricated and feigned claims were designed to bring about [his] constructive termination" (id., ¶¶.48, 52, 57, 62). Plaintiff also alleges that defendants subjected him to "discriminatory conditions," suspended his employment, and threatened "baseless discipline" as a pretext for their discriminatory conduct (id., ¶ 58).
The complaint asserts four causes of action, seeking recovery under article 1, section 11 of the New York State Constitution, section 296 of the NYSHRL, and section 8-107 of the NYCHRL (id., ¶¶45-62). Plaintiff seeks compensatory damages, punitive damages, injunctive relief, and costs and expenses, including attorney's fees (id., wherefore clause)..
DISCUSSION
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 N.Y.2d 83, 87 [1994]). On a motion to dismiss pursuant to . CPLR 3211 (a) (7), the court must '"accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Kolchins v Evolution Mkts., Inc., 31 N.Y.3d 100, 105-106 [2018], quoting Leon, 84 N.Y.2d at 87-88 [1994]). However, "'factual allegations . . . that consist of bare legal conclusions, or that are inherently incredible . . ., are not entitled to such consideration'" (Mamoon v Dot Net Inc., 135 A.D.3d 656, 658 [1st Dept 2016], quoting Leder v Spiegel, 31 A.D.3d 266, 267 [1st Dept 2006], aff'd 9 N.Y.3d 836 [2007], cert denied 552 U.S. 1257 [2008]).
As a preliminary matter, the court shall consider plaintiffs opposition, even though he has not submitted a certification of the word count of his opposition papers (see 22 NYCRR 202.8-b [c]). The court finds that this is a technical defect that may be overlooked (see CPLR 2001; Sklar v Itria Ventures, LLC, 2022 NY Slip Op 31800[U], *4 [Sup Ct, NY County 2022]).
A. Civil Service Law § 80
Contrary to defendants' contention, the complaint does not mention Civil Service Law § 80. In response to defendants' motion, plaintiff also does not rely on this statute, and states that "his claims are of disparate discriminatory treatment..." (NYSCEF Doc No. 10 at 3).
B. New York State Constitution Claim
The third cause of action asserts, in part, a claim under article 1, section 11 of the New York State Constitution (NYSCEF Doc No. 2, complaint, ¶¶ 53-58).
Defendants argue that plaintiffs claim under the New York State Constitution fails because he has an adequate remedy under the NYSHRL and NYCHRL, and fails to plead that he filed a prior notice of claim.
Article 1, section 11 of the New York State Constitution contains, in addition to an equal protection clause, a prohibition of discrimination based on race, creed, color or religion (NY Const art 1, § 11). However, "a private right of action for a violation of the NY Constitution is unavailable where an alternative remedy, such as, among other things, a common-law action for damages, exists" (Waxter v State of New York, 33 A.D.3d 1180, 1181 [3d Dept 2006]; see also Brown v State of New York, 89 N.Y.2d 172, 190-192 [1996]; Martinez v City of Schenectady, 97 N.Y.2d 78, 83-84 [2001]).
Here, plaintiff does not have a private right of action for discrimination under article 1, section 11 of the New York State Constitution because the NYSHRL and the NYCHRL provide adequate remedies for his allegations of discrimination (see Muhammad v New York City Tr. Auth., 450 F.Supp.2d 198, 212 [ED NY 2006] ["recognition of a State constitutional tort (was) unnecessary ... to afford plaintiff a remedy" where her religious discrimination claim could be addressed under the NYSHRL]; see also Lyles v State of New York, 2 A.D.3d 694, 695 [2d Dept 2003], aff'd 3 N.Y.3d 396 [2004]; Albright v State of New York, 32 Misc.3d 855, 860 [Ct of Claims 2011]).
Moreover, a plaintiff alleging a violation of the New York State Constitution must serve a prior notice of claim (see General Municipal Law §§ 50-e, 50-i; 423 S. Salina St. v City of Syracuse, 68 N.Y.2d 474, 482 [1986], cert denied 481 U.S. 1008 [1987]; Mirro v City of New York, 159 A.D.3d 964, 966 [2d Dept 2018]). Plaintiff does not allege that he filed a notice of claim prior to commencing this action. Accordingly, the part of the third cause of action alleging a claim under the New York State Constitution must be dismissed.
C. Discrimination Claims Under the NYSHRL and NYCHRL
The first, second, and third causes of action allege that defendants subjected plaintiff to discriminatory conditions in violation of the NYSHRL and the NYCHRL, and seek compensatory damages, including damages for his mental anguish, and punitive damages (NYSCEF Doc No. 2, complaint, ¶¶ 45-48, 49-52, 53-58).
Defendants contend that plaintiffs discrimination claims must be dismissed, given that plaintiff has failed to allege an adverse employment action, and even if he had, he has failed to allege any facts indicating that he was treated differently under circumstances giving rise to an inference of discrimination.
The NYSHRL makes it an unlawful discriminatory practice for an employer to discriminate against an individual in compensation or in terms, conditions or privileges of employment because of, inter alia, the individual's race or sex (Executive Law § 296 [1] [a]; see generally Basso v EarthLink, Inc. ,157 A.D.3d 428, 429 ). To establish a prima facie case of racial discrimination under the NYSHRL, a plaintiff must prove that: (1) he or she is a member of the class protected by the statute; (2) he or she was qualified to hold the position; (3)he or she was terminated from employment or suffered other adverse employment action; and (4)the discharge or other adverse employment action occurred under circumstances giving rise to an inference of racial discrimination (see Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305 [2004]; Ferrante v American Lung Assn., 90 N.Y.2d 623, 629 [1997]).
Once a plaintiff makes a prima facie case of discrimination, the burden shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" (Forrest, 3 N.Y.3d at 305 [internal quotation marks and citation omitted]). Therefore, in order to succeed on his or her claim, "the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason" (id. [citation omitted]).
The NYCHRL (Administrative Code of the City of NY § 8-107 [1]) provides, in pertinent part, that "[i]t shall be an unlawful discriminatory practice: (a) For an employer or an employee or agent thereof, because of the actual or perceived . . . race, . . . [or] gender ... to discharge from employment such person or . .. [f]o discriminate against such person in compensation or in terms, conditions or privileges of employment" (Administrative Code of City of NY§8-107[l][a][2],[3])., The First Department has instructed that, under the NYCHRL, a court's analysis '"must be targeted to understanding and fulfilling what the statute characterizes as the [NYCHRL's] uniquely broad and remedial purposes, which go beyond those of counterpart state or federal civil rights laws'" (Bennett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 34 [1st Dept 2011], Iv denied 18 NY3cl 811 [2012], quoting Williams v New York City Hous. Auth, 61 A.D.3d 62, 66 [1st Dept 2009],Iv denied 13 N.Y.3d 702 [2009]). Moreover, the Court of Appeals has indicated that the NYCHRL should be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 N.Y.3d 472, 477-478 [2011]). Thus, "[f]o establish a gender or race discrimination claim under the City Human Rights Law, a plaintiff need only demonstrate 'by a preponderance of the evidence that she has been treated less well than other employees because of her gender [or race]'" (Henry v Baco Enters, Inc., 2021 WL 6777535, *2 [Sup Ct, Bronx County 2021], quoting Williams, 61 A.D.3d at 78).
"An inference of discrimination' can arise from circumstances including, but not limited to, 'the employer's criticism of the plaintiffs performance in ethnically . degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiffs discharge'"(Littlejohn v City of New York, 795 F.3d 297," 312 [2d Cir 2015], quoting Leibowitz v Cornell Univ., 584 F.3d 487, 502 [2d Cir 2009]).
Even under notice pleading standards (see Vig v New York Hairspray Co., L.P., 67 A.D.3d 140, 145 [1st Dept 2009], Iv denied 19 N.Y.3d 807 [2012], rearg denied 19 N.Y.3d 1008 [2012] ["employment discrimination cases are themselves generally reviewed under notice pleading standards"]), plaintiffs discrimination claims under the NYSHRL and the NYCHRL are legally insufficient. The complaint fails to allege facts indicating that he was suspended or treated differently on the basis of his race (see Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 A.D.3d 580, 581 [1st Dept 2014] [employee failed to plead discriminatory animus where "the complaint contained] no allegations of any comments or references to plaintiffs age or race made by any employee of defendants" or "any factual allegations demonstrating that similarly situated individuals who did not share plaintiffs protected characteristics were treated more favorably than plaintiff']; Askin v Department of Educ. of the City of N.Y, 110 A.D.3d 621, 622 [1st Dept 2013] [plaintiff failed to adequately allege fourth element of a prima facie claim of employment discrimination, under the NYSHRL and NYCHRL, i.e., that she was "terminated or treated differently under circumstances giving rise to an inference of discrimination"]). Indeed, plaintiff does not allege, for example, that DOC criticized his performance in racially degrading terms, that his supervisors made comments about Black employees, or that non-Black employees' were treated better than Black employees.
Accordingly, the first, second, and third causes of action are dismissed.
Plaintiffs memorandum of law alleges that "the conduct complained of that resulted in Mr. Mitchell's forced retirement, constitutes an adverse employment action" (NYSCEF Doc No. 10 at 13). However, plaintiff "may not amend [his] complaint... via statements in a memorandum of law" (Cambridge Invs. LLC v Prophecy Asset Mgt., LP, 188 A.D.3d 521, 521 , Iv denied 37 N.Y.3d 906 [2021]).
D. Disparate Impact Allegation
Plaintiff asserts that he is bringing this action as an "action for relief for disparate impact" (NYSCEF Doc No. 2, complaint, preliminary statement). According to the complaint, in April 2017, DOC announced its intention to reduce its workforce levels (id., ¶ 23). These allegations, though, are insufficiently pled.
"To make out a prima facie case of disparate impact[,]'this require[s] proving, by a preponderance of the evidence, that a facially neutral practice had a racially disproportionate effect" (Matter of New York State Off. of Mental Health, Manhattan Psychiatric Or. v New York State Div. of Human Rights, 223 A.D.2d 88, 90 [3d Dept 1996], Iv denied 89 N.Y.2d 806 [1997]). "A prima facie case of disparate impact is not established by a simple showing of statistical disparities in an employer's workforce" (id.; see also Abbott v Memorial Sloan-Kettering Cancer Ctr., 276 A.D.2d 432, 433 ["a plaintiff may use statistical evidence to rebut an employer's non-discriminatory explanation of its actions"]).
Here, the complaint alleges that "the Department's most publicly available demographics report of October 15, 2018" shows that there are "69 Black uniform staff (71% of the ADWs uniform staff)" (NYSCEF Doc No. 2, complaint, ¶¶ 37, 41). Nevertheless, "[f]he mere fact that there is racial imbalance in one segment of an employer's workforce does not, without more, establish a prima face case of disparate impact" (Matter of New York State Off of Mental Health, Manhattan Psychiatric Ctr. v New York State Div. of Human Rights, 223 A.D.2d at 91)'. Plaintiff also does not allege that he was somehow affected by any such policy or practice.
Plaintiff references an IBO Budget Summary, which allegedly "makes clear that [DOC] is dismissing thousands of uniform staff, who are disproportionately Black and Hispanic" (NYSCEF Doc No. 10 at 12 n 2). This document, however, is not annexed to the complaint or plaintiff s opposition papers.
E. Hostile Work Environment and Constructive Discharge Claim
The fourth cause of action alleges that plaintiff was subjected to a hostile work environment, and was constructively discharged from his employment (NYSCEF Doc No. 2, complaint, ¶¶ 59-62).
Defendants assert that plaintiffs hostile work environment and constructive discharge claims are conclusory and insufficient to state a cause of action.
In this case; plaintiffs failure to plead discriminatory animus is fatal to his hostile work environment claims (see Pelepelin v City of New York, 189 A.D.3d 450, 451-452 [1st Dept 2020]; Massaro v Department of Educ. of the City of N.Y., 121 A.D.3d 569, 570 [1st Dept 2014], Iv denied26 N.Y.3d 903 [20\5\, Askin, 110 A.D.3d at 622; Chin v New York City Hous. Auth., 106 A.D.3d 443, 445 [1st Dept 2013], Iv denied 22 N.Y.3d 861 [2014]).
Furthermore, the complaint fails to state a cause of action for a constructive discharge based upon a hostile work environment. "An employee is constructively discharged when his employer, rather than discharging him directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily" (Terry v Ashcroft, 336 F.3d 128, 151-152 [2d Cir 2003]). Plaintiffs bare conclusions that he was "falsely suspended," "accused of wrongdoing," and the "subject of fabricated and feigned claims of misconduct," are insufficient to allege that he was constructively discharged from DOC (NYSCEF Doc No. 2, complaint, ¶¶ 60-62).
In light of the above, the complaint must be dismissed in its entirety.
Although plaintiff asserts a separate cause of action for punitive damages, it is well settled that "[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action" (Rocanova v Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603, 616 [1994]). Given that the complaint fails to state a cause of action, plaintiffs request for punitive damages cannot stand.
CONCLUSION
Accordingly, it is
ORDERED that defendants' motion to dismiss (motion sequence number 001) is granted and the complaint is hereby dismissed as to all defendants with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that within twenty days from the date of this decision and order, defendant City of New York shall serve a copy of this decision and order, with notice of entry, upon the New York County Supreme Court's General Clerk's Office (60 Centre Street, Room 119) and the Clerk of the Court (60 Centre Street, Room 141B), who are directed to enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court shall be made in accordance . with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on this court's website at the address www.nycourts.gov/supctmanh).