Opinion
02 Civ. 8030 (HB).
June 20, 2003.
OPINION AND ORDER
Defendant has moved to dismiss the Amended Complaint. For the following reasons, Defendant's motion is granted.
Although the Amended Complaint names the NYPD as a defendant, it is not a proper defendant pursuant to the New York City Charter. See N.Y. City Charter, Ch. 17, § 396 ("[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency"); see also East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992).
I. BACKGROUND
The plaintiffs are detectives with the New York City Police Department ("NYPD"). Detective Richard Tamayo is Hispanic and has been employed with the NYPD for 12 years and has been a detective for 2 years. See Am. Compl. ¶ 10. Starting in September 1999, Detective Tamayo was assigned to the Brooklyn North Narcotics in an undercover capacity. See Am. Compl. ¶ 16. Detective John Banks is black and has been employed with the NYPD for 9 years and has been a detective for 5 years. See Am. Compl. ¶ 11. Detective Banks was assigned to the Brooklyn North Narcotics in May 1995. See Am. Compl. ¶ 24.
This case combines two distinct putative classes of plaintiffs. The first class asserted consists of black and Hispanic undercover officers in the NYPD ("the Undercover Class"). The second class consists of all members of the NYPD ("the Smoking Class"). The Undercover Class alleges that the City, through the NYPD, intentionally discriminated against and continues to discriminate against black and Hispanic undercover officers by 1) placing a disproportionate number of them in inherently dangerous assignments and subjecting them to working conditions that violate NYPD safety procedures for undercover operations, and 2) by disregarding NYPD promotional policies for undercover officers. See Am. Compl. ¶ 8. The Smoking Class alleges 1) that the City violated and continues to violate city and federal health and safety rules and regulations against smoking in the precinct buildings and 2) that the City violated and continues to violate the rights of the class members by retaliating against those who complain about violations of these smoking rules and regulations. See Am. Compl. ¶ 9. The amended complaint lists four causes of action: 1) employment discrimination based on race and national origin, in violation of the state and federal constitutions and federal and local statutes, 2) Title I of the ADA and violation of the New York Clean Air Act, 3) breach of contract due to the City's failure to protect against recognized safety hazards and violation of the covenants of good faith and fair dealing, and 4) intentional infliction of emotional distress. On behalf of the Undercover Class, plaintiffs urge that I enjoin the NYPD to follow its regulations regarding officer safety; $10 million in damages for breach of contract, disregard for plaintiffs' safety and welfare, and intentional infliction of emotional distress; $10 million in punitive damages; and attorneys fees. On behalf of the Smoking Class, plaintiffs urge that I enjoin the NYPD to follow its regulations regarding smoking; $1 million in damages for breach of contract, disregard for plaintiffs' safety and welfare, and intentional infliction of emotional distress; $1 million in punitive damages; and attorneys fees.
II. DISCUSSION
Defendant has moved to dismiss the Amended Complaint, claiming that plaintiffs have failed to state a claim for each of their causes of action.
A. Employment discrimination based on race and national origin
Plaintiffs on behalf of the Undercover Class claim discrimination based on race and national origin. First, they claim that the City's failure to provide sufficient safety measures to undercover officers disproportionately affects minority members. Specifically, they note that approximately 95 percent of undercover assignments are given to black and Hispanic officers and that these assignments require special training and equipment and are highly regulated to protect the officers and safety protocols. See Am. Compl. ¶¶ 28-29. Detective Banks claims that the sergeant in command knowingly and intentionally violated NYPD regulations designed to protect the officers' safety — such as utilizing an inadequate number of personnel per assignment, allowing inadequate checks on equipment, and failure to use adequate equipment to insure the officers safety. This scenario, according to Det. Banks, occurred in approximately half of the 300 undercover operations in which he has been involved. See Am. Compl. ¶¶ 33-34. Similarly, Detective Tamayo claims he was involved in approximately 50 operations in which the sergeant in command knowingly and intentionally violated these regulations. See Am. Compl. ¶ 32. Det. Tamayo and Banks complained to their superiors on multiple occasions about these failures to comply with proper safety procedures. See Am. Compl. ¶¶ 35-36. This claim for failure to follow safety instructions is in the nature of a disparate-impact claim — i.e., a facially neutral policy which when applied has a disproportionate adverse impact on a protected class. See Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999).
Second, plaintiffs claim that the City violated its promotion policy with respect to minority officers. Specifically, plaintiffs contend that despite the NYPD's policy that undercover officers become eligible for promotion to detective after 18 months, both plaintiffs performed duties as undercover officers for longer than 18 months before they were considered eligible for promotion. See Am. Compl. ¶¶ 38-40. Defendant argues that plaintiffs have failed to state a claim and that some of the conduct complained of is barred by the applicable statute of limitations. This claim that defendant did not promote members of the Undercover Class according to its own policies is as well in the nature of a disparate-treatment claim. See Hayden, 180 F.3d at 48.
Although denominated as a single cause of action, plaintiffs on behalf of the Undercover Class invoke several statutory and constitutional remedies: Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e; the Thirteenth and Fourteenth Amendments, via 42 U.S.C. § 1983; 42 U.S.C. § 1981; Article V of the N.Y. Constitution; and N.Y. Civil Service Law § 50. 1. Failure to state a claim
The Thirteenth Amendment to the United States Constitution provides that "Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const. amend. XIII. In their memorandum in opposition to the motion to dismiss, plaintiffs do not indicate how the facts they have alleged state a claim under the Thirteenth Amendment.
Article 5, § 6 of the New York Constitution pertains to civil service appointments and promotions and provides in pertinent part: "Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive." N.Y. Civil Service Law § 50 pertains to the administration of examinations for civil-service positions and provides in pertinent part: "The merit and fitness of applicants for positions which are classified in the competitive class shall be ascertained by such examinations as may be prescribed by the state civil service department or the municipal commission having jurisdiction." In their memorandum in opposition to the motion to dismiss, plaintiffs make no effort to explain how the allegations in their Amended Complaint support claims under these two provisions.
The Federal Rules of Civil Procedure require that a plaintiff's complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Such a statement must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). On a motion to dismiss for failure to state a claim, the court accepts as true all factual allegations in the complaint. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164 (1993). Further, the court should construe the complaint liberally and draw inferences from the plaintiff's allegations in the light most favorable to the plaintiff. See Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999). Dismissal is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,"Phillip v. Univ. of Rochester, 316 F.3d 291 (2d Cir. 2003) (quoting Conley, 355 U.S. at 45-46), or where the complaint fails as a matter of law. See Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002).
Prior to Swierkiewicz, the Second Circuit required an employment-discrimination plaintiff to allege facts that constituted a prima facie case of discrimination. See, e.g., Tarshis v. Riese Org., 211 F.3d 30, 35-36 (2d Cir. 2000).
Defendant argues that the plaintiffs on behalf of the Undercover Class have not alleged discriminatory intent or a causal connection between their race or national origins and the unreasonably dangerous work conditions and their allegedly belated promotions. See Def. Mem. of Law in Support of Motion to Dismiss Am. Compl. at 9-10; Def. Reply Mem. of Law in Support of Motion to Dismiss Am. Compl. at 6. Plaintiffs claim that they have properly alleged discrimination because: 1) they claim that there is a "disproportionate number of Black and Hispanic undercover police officers [and that such assignments are] inherently dangerous." Pl. Mem. of Law in Opposition to Motion to Dismiss Am. Compl. at 4-5. Upon information and belief, "95 percent of the NYPD undercover assignments are given to Black and Hispanic police officers." Id. "The Amended Complaint goes on to detail the treatment afforded undercover officers, and how the NYPD fails to properly protect and promote these undercover officers." Id.
In effect, plaintiffs concede that nowhere in their Amended Complaint do they expressly allege that these failures to adequately protect undercover officers' safety or the belated promotions were motivated by discriminatory animus based on race or national origin. Instead, the apparent gist of their argument with respect to the allegation about failure to follow safety procedures is that from the actions of the Department one may infer such an intent. However, the inference necessary for plaintiffs to make out a claim with respect to the failure to follow safety procedures is not a reasonable one: Specifically, the necessary inference is that the sergeants in charge intentionally place their fellow police officers in peril because the undercover officers are Black or Hispanic. Thus, even under the liberal pleading rules, this Amended Complaint lacks sufficient allegations to survive this motion with regard to the failure to follow safety procedures. Cf. Phillip v. Univ. of Rochester, 316 F.3d 291, 298-99 (2d Cir. 2003) (holding that under Swierkiewicz, plaintiffs sufficiently stated a claim where, despite few evidentiary allegations relevant to intent or racial animus, they alleged that they were singled out of a group that contained non-minorities and were maltreated solely because of their color); Swierkiewicz, 534 U.S. at 514 (denying Rule 12(b)(6) dismissal where plaintiff had provided detailed account of events leading to his termination and had alleged that he was terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA).
Similarly with respect to their allegations about the failure to timely promote minority officers, the allegations in the Amended Complaint fall short of stating a claim. The allegation is that these two officers worked as undercover officers for more than 18 months before they were considered for promotion and that "[u]pon information and belief, the NYPD has failed to abide by its own policies for the promotion of undercover agents to detective." Again, the Amended Complaint fails to state that Dets. Banks and Tamayo were denied consideration for promotion on account of their race and national origin nor that the NYPD's failure to follow its policies with respect to undercover officers' promotions because they are predominantly minorities, nor that non-minority undercover officers were considered for promotion after 18 months of service, as per the NYPD's policy. Thus, even given the low pleading standard, plaintiffs must put more meat on the bones. While the Amended Complaint fails to meet the pleading standard, the plaintiffs are given twenty days to replead — perhaps a careful study of this opinion will help flesh out what is required.
This allegation about failure to timely promote also appears to be barred procedurally, as the plaintiffs have not raised it before the EEOC. The one claim pertaining to Title VII that Det. Tamayo filed with the EEOC relates to the failure of the sergeant to adhere to safety procedures.
B. Americans with Disabilities Act
Detective Tamayo filed a notice of claim with the New York City Comptroller on March 15, 2002. See Am. Compl. Ex. 1. The nature of the claim, as described in this notice, was for "intentional infliction of severe emotional distress due to the unlawful and unconstitutional actions of the City of New York in failing to provide a safe work place, free from second hand smoke/environmental tobacco smoke thereby causing the claimant to sustain extreme respiratory discomfort while on the job." The notice of claim also avers that he was retaliated against after filing complaints with various city, state, and federal agencies, and that he was discriminated against due to national origin. Detective Tamayo received a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") on July 18, 2002. See Am. Compl. Ex. 2. Plaintiffs originated this facet of the lawsuit based on that letter in October 9, 2002.
Between August 2000 and March 2002, Detective Tamayo has filed formal written complaints with the NYPD Department on Smoking Policy, the NYPD Department of Internal Affairs, the New York City Department of Health, the New York State Public Safety and Health Division, the Occupations Health and Safety Administration, and the New York City Office of Collective Bargaining. See Am. Compl. ¶ 19.
The ADA prohibits discrimination against a "qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a); see Heyman v. Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999). The elements of a prima facie case under the ADA are that 1) the employer is subject to the ADA, 2) the plaintiff was disabled within the meaning of the ADA, 3) the plaintiff was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and 4) the plaintiff suffered adverse employment action because of this disability. See Heyman, 198 F.3d at 72. The NYPD is an employer subject to the ADA, see Giordano, 274 F.3d at 747, and a reasonable inference from the complaint is that plaintiffs are qualified to perform the essential functions of the job.
The ADA defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities. . . ." See Toyota Motor Manufacturing, Kentucky, Inc., v. Williams, 534 U.S. 184, 193 (2002) (quoting 42 U.S.C. § 12102(2)). Any physiological disorder or condition affecting the respiratory system is a physical impairment under the ADA, see Toyota Motor, 534 U.S. at 194-95 (quoting 45 C.F.R. § 84.3(j)(2)(i) (2001)), and breathing is defined as a major life activity. See 29 C.F.R. § 1630.2(i); see also 45 C.F.R. § 84.3(j)(2)(ii)). "Substantially limited" means "unable to perform a major life activity that the average person in the general population can perform" or "significantly restricted as to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." Toyota Motor, 534 U.S. at 195-96 (quoting 29 C.F.R. § 1630.2(j) (2001) (alterations omitted)).
The disability that plaintiffs claim is "extreme respiratory discomfort . . . resulting in medical and respiratory problems."See Pl. Br. 4. Plaintiffs claim to have given notice of this impairment through depositions in connection with 50-H hearings.See Pl. Br. 3 n. 1. Although this condition affects the respiratory system and presumably affects the plaintiffs' breathing, nevertheless, despite the liberal pleading standards, the allegations in this amended complaint fail to state a claim under the ADA. The amended complaint fails to allege that plaintiffs are substantially limited because of this disability nor provides any facts that would permit such a conclusion.See Ryan v. Grae Rybicki, 135 F.3d 867, 870 (2d Cir. 1998) ("[I]n assessing whether a plaintiff has a disability, courts have been careful to distinguish impairments which merelyaffect major life activities from those the at substantially limit those activities." (emphasis in original)). Although plaintiffs claim that the discomfort is severe, they do not allege that this severe discomfort renders them unable to breath or "significantly restrict[s them] as to the condition, manner, or duration under which the average person in the general population can" breath. See Toyota Motor, 534 U.S. at 195-96.
The cause of action under the ADA in the amended complaint also fails because of the absence of any allegation that the defendant discriminated on the basis of this disability. Det. Tamayo claims that in October 2000, shortly after he made several complaints to his supervisor that smoking in the building resulted in an allergic reaction, he was summarily transferred to another team without notice. He claims that on January 11, 2002, he was placed on restrictive duty due to depression. Det. Banks alleged that during a meeting on his complaints about smoking in the building, he was told that there may be retaliation from his fellow officers. Even assuming these are adverse employment actions and construing the complain liberally, plaintiffs have failed to allege that these actions were taken because of their alleged disability. Cf. Caballero v. First Albany Corp., 237 A.D.2d 800, 801 (N.Y.App.Div.3d Dep't 1997) ("We find meritorious defendant's argument that plaintiff's version of events, if accepted as true, merely establish that the alleged mistreatment was the result of animus caused by her complaints and her attitude about smoking in the office and not sexual harassment/discrimination as alleged in her first and sixth causes of action."). Instead, even liberally construed, the complaint alleges that adverse employment actions were taken because they filed numerous complaints, not because they had a disability protected by the ADA.
Plaintiffs' ADA claim is deficient as a matter of law and must be dismissed.
C. State-law claims
Because plaintiffs' claims on behalf of the Smoking Class under the ADA are dismissed, their state-law claims pertaining to disabilities are also dismissed. Because plaintiffs' federal claims on behalf of the Undercover Class for failure to adequately protect and failure to promptly promote are dismissed with leave to replead, it is not necessary at this time to reach the merits of their state-law claims on behalf of the Undercover Class for discrimination and for breach of contract and intentional infliction of emotional distress.
III. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss plaintiffs' Amended Complaint for failure to state a claim is granted, but for that claim for which leave to replead within 20 days from the date of this Opinion and Order has been granted.