“[W]hen the incidents are extremely frequent, particularly over such a short period of time, it is reasonable to infer that work conditions were ‘altered for the worse.’”
How later courts described this case
- “[W]hen the incidents are extremely frequent, particularly over such a short period of time, it is reasonable to infer that work conditions were ‘altered for the worse.’”
- “Even in the discrimination context, however, a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment.”
- “trial courts should not ‘treat discrimination differently from other ultimate questions of fact’”
- “We consider [the plaintiff’s] state law claims in tandem with her Title VII claims because New York courts rely on federal law when determining claims under the New York [State] Human Rights Law.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MICHAEL JOHNSON,
Plaintiff,
MEMORANDUM & ORDER
-against-
16-CV-6426(KAM)(VMS)
THE CITY OF NEW YORK, DANIEL A.
NIGRO, MICHAEL GALA, MICHAEL
CURNEEN, JAKE LAMONDA, AND JOHN JOE
OR JANE DOE,
Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
On November 18, 2016, Michael Johnson (“Plaintiff”)
commenced this action, alleging violations of his constitutional
and civil rights in connection with alleged workplace
retaliation and alleged wrongful disclosure of his protected
personal information, which resulted in derogatory media
articles about plaintiff. (ECF No. 1, Complaint.) On March 31,
2018, the court granted in part and denied in part defendant,
Jake Lemonda’s motion to dismiss, and granted the City
Defendants’ motion to dismiss. (ECF No. 82, Order Granting in
Part and Denying in Part Lemonda’s Motion to Dismiss and
Granting the City Defendants’ Motion to Dismiss.)
On October 31, 2018, plaintiff filed a third amended
complaint alleging violations of his constitution and civil
rights and unlawful retaliation, pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”)
against the City of New York. Plaintiff also alleges unlawful
retaliation claims against all defendants pursuant to the New
York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq.
(“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”),
New York City Administrative Code § 8-107, et seq., as amended.
(See generally ECF No. 115, Third Amended Complaint.) Plaintiff
additionally brings discrimination and retaliation claims
pursuant to 42 U.S.C. §§ 1981 and 1983 against Michael Curneen,
Michael Gala, Jake Lemonda, Paul Mannix, and Joseph Kearney.
Separately, plaintiff alleges municipal liability against the
City of New York, and a conspiracy claim against the defendants
pursuant to 42 U.S.C. §§ 1985(3) and 1983. (See id.)
Presently before the court are the summary judgment
motions of the City of New York, Michael Curneen and Michael
Gala (collectively, the “City Defendants”); Joseph Kearney and
Paul Mannix (collectively, the “Individual Defendants”); and
Jake Lemonda. (ECF No. 165, Motion for Summary Judgment by the
City of New York; ECF No. 171, Motion for Summary Judgment by
Jake Lemonda; ECF No. 175, Motion for Summary Judgment by Joseph
Kearney and Paul Mannix.) Plaintiff opposes the motions. (ECF
No. 179, Plaintiff’s Memorandum in Opposition to Summary
Judgment Motions by all Defendants (“Pl. Mem.”).) For the
reasons provided below, the court grants in part and denies in
part the defendants’ motions for summary judgment.
BACKGROUND
I. Factual Background
The following timeline of events is taken from the
parties’ filings pursuant to Local Civil Rule 56.1.12 (See ECF
No. 166, City’s Rule 56.1 Statement of Undisputed Material Facts
(“City’s 56.1 Stm’t.”); ECF No. 172, Lemonda’s Rule 56.1 Statement
of Undisputed Material Facts (“Lemonda’s 56.1 Stm’t.”); ECF No.
176, Kearney and Mannix’s Rule 56.1 Statement of Undisputed
Material Facts (“Kearney and Mannix 56.1 Stm’t.”); and ECF No.
180, Plaintiff’s Objections to Defendants’ 56.1 Statements (“Pl.
56.1 Stm’t.”).) The Court has considered whether the parties have
proffered admissible evidence in support of their purported
undisputed or disputed facts and has viewed the facts in a light
most favorable to plaintiff. Disputed issues of fact are noted.
1 Local Civil Rule 56.1 provides that a party moving for summary judgment
“shall annex[] to the notice of motion a separate, short and concise
statement . . . of the material facts to which the moving party contends
there is no genuine issue to be tried.” L. Civ. R. 56.1(a). The party
opposing the motion must “include a correspondingly numbered paragraph
responding to each numbered paragraph in the statement of the moving party”
with the opposition. Local Civ. R. 56.1(b). Each of these paragraphs must
cite to admissible evidence. L. Civ. R. 56.1(c). Facts supported by
admissible evidence that were not contradicted by citations to admissible
evidence are deemed admitted. See Ferraro v. New York City Dep’t of Educ.,
404 F. Supp. 3d 691, 698 (E.D.N.Y. 2017), aff’d, 752 F. App’x 70 (2d Cir.
2018).
2 The defendants each submitted 56.1 statements, (see ECF Nos. 166, 172, and
176,), and the plaintiff continued the sequencing of each of the defendants’
56.1 statements in plaintiff’s responsive statement. (See ECF No. 180.)
Unless otherwise noted, the Local Rule 56.1 Statement of Undisputed Facts
cited herein refers to Plaintiff’s Combined Rule 56.1 Responsive Statement,
which contains Plaintiff’s responses to Defendants’ Local Rule 56.1
Statements of Undisputed Facts. (See id.)
A. Parties
Michael Johnson is a black firefighter who was
employed by the New York City Fire Department (“FDNY”) since
1999. (Pl. 56.1 Stm’t. Response to City ¶ 1; Response to Mannix
and Kearney ¶ 1; and Response to Lemonda ¶ 1.) After graduating
from the Fire Fighter Academy (“the Academy”), plaintiff was
stationed at Engine 257, under the supervision of Defendants,
Michael Curneen, Captain of Engine Company 257, and Michael
Gala, Chief of Uniformed Personnel of the FDNY. (Pl. 56.1
Stm’t. Response to Mannix and Kearney ¶ 3.) Jake Lemonda had
been a firefighter and had a supervisory civil service title,
but worked as the President of the Uniformed Fire Officers
Association (the “UFOA”). (Pl. 56.1 Stm’t. Response to Mannix
and Kearney ¶ 4; Response to Lemonda ¶¶ 46, 49.) The UFOA is a
municipal labor union which represents uniformed employees of
the FDNY with supervisory capacities, but does not represent
firefighters. (Pl. 56.1 Stm’t. Response to Lemonda ¶ 47.)
Defendants, Paul Mannix, a Deputy Battalion Chief, and
firefighter Joseph Kearney, were also employed by the FDNY at
the time Plaintiff was stationed at Engine 257. (Pl. 56.1
Stm’t. Response to Mannix and Kearney ¶ 5-6.) From 2010 through
2014, Paul Mannix was the President of Merit Matters, an
organization which defendants contend “was dedicated to
preserving the salutary benefits of the merit system and
retaining high standards within the FDNY.”3 (Pl. 56.1 Stm’t.
Response to Mannix and Kearney ¶¶ 22-26.) Joseph Kearney served
as the organization’s Vice President. (Pl. 56.1 Stm’t. Response
to Mannix and Kearney ¶ 27.)
B. Plaintiff’s Employment History
Plaintiff was first hired in 1999 to work in the
FDNY’s Emergency Medical Services division as an Emergency
Medical Technician (“EMT”). (Pl. 56.1 Stm’t. Response to City ¶
3; Response to Mannix and Kearney ¶ 42; Response to Lemonda ¶
1.) In 2013, plaintiff entered the Academy as a probationary
firefighter. (Pl. 56.1 Stm’t. Response to City ¶ 3; Response to
Mannix and Kearney ¶ 43; Response to Lemonda ¶ 2.) After
completing the Academy in 2014, plaintiff was assigned to Engine
Company 257 in Canarsie, Brooklyn as a 41-year-old firefighter.
(Pl. 56.1 Stm’t. Response to City ¶¶ 3,7; Response to Mannix and
Kearney ¶ 45; Response to Lemonda ¶ 6.) Defendants assert that
“no one at Engine 257 ever referred to him [the plaintiff] as a
‘priority hire.’”4 (Pl. 56.1 Stm’t. Response to City ¶ 7.)
3 Plaintiff disputes the defendants’ characterization of Merit Matters as
argumentative rather than a proper factual statement. (Pl. 56.1 Stm’t.
Response to Mannix and Kearney ¶¶ 22-26.)
4 As discussed in this court’s March 31, 2018 Order, plaintiff was appointed
as a “priority hire” following the court order entered by the Honorable
Nicholas G. Garaufis in the case captioned United States, et. al v. City of
New York, No. 07-CV-2067(NGG) (E.D.N.Y.) (the “Vulcan Class Action”). (See
ECF No. 82, Order Granting in Part and Denying in Part Lemonda’s Motion to
Dismiss and Granting the City Defendants’ Motion to Dismiss.) Plaintiff has
since testified that he was not a party to the Vulcan Class Action, but
participated in and benefited from the remedial orders in the Vulcan Class
Action lawsuit. (Pl. 56.1 Stm’t. Response to City ¶ 2.)
Plaintiff clarifies that when he arrived at Engine 257, no one
referred to him as a priority hire, although comments were made
about his 41-year age at the time, indicating knowledge that he
was a priority hire. Specifically, the record indicates that
Curneen understood plaintiff to be a “priority hire” because of
his age. (See id.; ECF No. 164-3, at 167.)
Plaintiff testified that as a probationary firefighter
at Engine 257, he individually drilled and practiced by himself
putting on personal protective equipment. (Pl. 56.1 Stm’t.
Response to City ¶ 12, 13.) At Engine 257, while a probationary
employee, Johnson would start every tour with a drill and end
every tour with a drill as directed by Curneen and other
supervisors. (Pl. 56.1 Stm’t. Response to City ¶ 12; ECF No.
182-41, Exhibit.) All probationary officers practiced their
drills, but out of the seven probationary officers at the time,
Captain Curneen stated only Johnson’s abilities to perform the
drills gave him concerns.5 (Pl. 56.1 Stm’t. Response to City ¶
19; ECF No. 164-3, Exhibit BIT transcript at 23-24.) In
plaintiff’s first performance evaluation, “plaintiff was noted
to have deficiencies in donning PPE properly and performing
duties at [the] fire.” (Pl. 56.1 Stm’t. Response to City ¶ 27.)
Captain Curneen recommended that plaintiff be re-trained at the
5 Plaintiff objects that other probationary employees’ performances were not
produced and should not be considered. (Pl. 56.1 Stm’t. Response to City ¶
20.)
Academy. (Id.) Plaintiff disputes Curneen’s assessment of
plaintiff and asserts that his evaluations were false,
retaliatory, and pretextual. (Id.)
On July 4, 2014, while a probationary officer at
Engine 257, plaintiff was injured on the job. (Pl. 56.1 Stm’t.
Response to City ¶ 33.) Consequently, plaintiff was on medical
leave for 226 days and returned to his post on February 2, 2015.
(Pl. 56.1 Stm’t. Response to City ¶ 38.) Plaintiff’s
probationary period was extended due to his “excessive medical
leave.” (Pl. 56.1 Stm’t. Response to City ¶ 41.)
C. The April 2, 2015 Fire and Aftermath
On April 2, 2015, two months after plaintiff had
returned from medical leave on February 2, 2015, Engine 257 was
called to respond to a fire. (Pl. 56.1 Stm’t. Response to City ¶
42.) Plaintiff was assigned to the position of “back-up.” (Pl.
56.1 Stm’t. Response to City ¶ 44.) After ten minutes at his
post, plaintiff left the hose line because his oxygen was low
and went back to the firetruck to replace his air tank. (Pl.
56.1 Stm’t. Response to City ¶ 45.) During the period after he
left the hose line, Captain Curneen called over the radio saying
that he could not find his “back-up.” (Pl. 56.1 Stm’t. Response
to City ¶ 47.) Plaintiff responded over the radio and informed
Captain Curneen that he was replacing the air in his tank. (Pl.
56.1 Stm’t. Response to City ¶ 48.) Plaintiff also testified
that when he returned to the burning building after replacing
the air in his tank, Curneen told plaintiff to return to the
rig. (Pl. 56.1 Stm’t. Response to City ¶ 63; ECF No. 170-1 at
115-116.)
Gala was also at the fire on April 2, 2015. (Pl. 56.1
Stm’t. Response to City ¶ 105; ECF No. 164-4, Exhibit at 19.)
Gala testified that his typical practice is to “snap a couple of
pictures and send them off to the fire commissioner.” (ECF No.
164-4, Exhibit at 22.) Gala further testified that he saw
Johnson the day of the fire and that no one spoke to him about
Johnson’s whereabouts during the fire. (ECF No. 164-4, Exhibit
at 21.) In fact, Gala passed by the rig where plaintiff was and
asked plaintiff, “How are you doing?” to which plaintiff
replied, “okay.” (Id. at ¶ 49.)
After returning to Engine 257, Captain Curneen spoke
with Johnson privately and stated “I don’t know what I’m going
to do with you. I might just have to keep you on the, the back
step.” (Pl. 56.1 Stm’t. Response to City ¶ 50; ECF No. 170-1,
Appx. A at 120.) Curneen also testified that he told plaintiff,
“maybe this job is not for him.” (Id.) No one at Engine 257
spoke to plaintiff for the rest of his shift after they returned
to the firehouse. (Pl. 56.1 Stm’t. Response to City ¶ 52.)
Later that same day, Gala requested information about Johnson
and received information regarding Johnson’s status as a
priority hire. (Pl. 56.1 Stm’t. Response to City ¶ 105; ECF
Nos. 182-44, 45, and 48.)
On April 3, 2015, Engine 257 responded to another
call. (Pl. 56.1 Stm’t. Response to City ¶ 55.) Plaintiff
testified that someone “tangled” his suspenders with his boots
so he was unable to timely put on his gear, which resulted in
him being unable to join the other officers in responding call.
(Pl. 56.1 Stm’t. Response to City ¶ 56; ECF No. 170-1, Appx. A
at 125, 7-9.) That same day, plaintiff reported abdominal pain
and took medical leave and his doctor prescribed medication for
a virus. (Pl. 56.1 Stm’t. Response to City ¶¶ 59, 61.)
On April 7, 2015, five days after the April 2, 2015
incident, Captain Curneen emailed Dr. Kevin Kelly, the FDNY
Chief Medical Officer, and requested that plaintiff receive a
complete medical evaluation. (Pl. 56.1 Stm’t. Response to City
¶¶ 62, 63.) Curneen conveyed to Dr. Kelly that he wanted
Johnson to undergo a psychological evaluation. (Id.) During
his psychological evaluation with Dr. Kelly on April 8, 2015,
Johnson reported that he thought the firefighters at Engine 257
were “mad at him” because of his performance at the April 2,
2015 fire, and stated that he did not think there were racial
issues, but that he was being subjected to a hostile work
environment and abusive treatment. (Pl. 56.1 Stm’t. Response to
City ¶¶ 66-67.) In plaintiff’s declaration, he states that he
told Dr. Kelly that he did not think there was a racial issue
because he “believed that by interjecting race into the problems
[he] was having at the firehouse would likely lead to more
abuse, hostility and resentment.” (ECF No. 181, Johnson
Affidavit at ¶ 5.)
After the two fires, Curneen emailed Gala regarding
Johnson. (ECF No. 182-9, Exhibit.) On April 10, 2015, Curneen
attached a report regarding Johnson’s performance at the two
fires and titled the email subject line “Probationary
Firefighter Michael Johnson.” (Id.) Curneen’s email described
Curneen’s concerns about Johnson’s performance at the fires and
his inability to master his drills. (Id.) Specifically, Curneen
stated in his report that he was “greatly concerned that his
[Johnson’s] actions [would] contribute to an injury on the fire
ground to either himself or another firefighter.” (Id.)
D. The May 17, 2015 New York Post Article and Aftermath
On May 17, 2015, the New York Post published an
article titled, “Firefighters Fear Colleague Who Routinely Flees
Fires,” listing the authors as Susan Edelman and Amber Jamison.
(Pl. 56.1 Stm’t. Response to Mannix and Kearney ¶ 73.) The
article featured a photograph purportedly depicting plaintiff at
the April 2, 2015 fire and described plaintiff’s behavior the
day of the April 2, 2015 fire based on anonymous FDNY sources.
(Pl. 56.1 Stm’t. Response to Mannix and Kearney ¶¶ 73-75.) The
article also states that Johnson is a priority hire and asserts
that according to sources, plaintiff had “managed to evade the
smoke and flames” several times since his hiring. (ECF No. 182-
26, Exhibit.) Similar to the language in Curneen’s April 10th
report regarding plaintiff at the April 2nd fire, the article
quotes a source familiar with Engine 257’s need to correct
plaintiff’s “intentionally avoiding danger,” as stating that a
civilian or firefighter “will be injured or killed.” (Id; see
also ECF No. 182-9, Exhibit.) The article also refers to a
letter that a chief sent to the Brooklyn division regarding
concerns about Johnson at the April 2nd fire, Johnson’s
subsequent retraining, his desire not to return to Engine 257,
and his medical leaves. (Id.) The article quotes three unnamed
FDNY sources. (Id.) Defendant Lemonda admitted speaking to the
Post about the article before it was published. (Pl. 56.1
Stm’t. Response to Mannix and Kearney ¶¶ 76-77.) Plaintiff also
points to “substantial evidence” that the individual defendants
were directly and indirectly involved in disclosing information
about plaintiff to the Post. (Pl. 56.1 Stm’t. Response to
Mannix and Kearney ¶ 79.)
On May 15, 2015, two days before the Post article was
published, the FDNY Director of Public Relations, James Long,
circulated an email that he was notified “by B58/E257/L170” that
the New York Post was planning on writing an article referencing
the plaintiff. (Pl. 56.1 Stm’t. Response to Mannix and Kearney
¶ 83-84.) Curneen and James Long contacted plaintiff before the
Post article was published to let him know that the article was
going to be published. (Pl. 56.1 Stm’t. Response to Mannix and
Kearney ¶ 86-87.)
On May 15, 2015, Mannix and Kearney spoke on the phone
for approximately twenty minutes. (Pl. 56.1 Stm’t. Response to
Mannix and Kearney ¶ 88-89.) During their conversation, the
Individual Defendants assert that they spoke about Mannix’s
disciplinary proceedings and how there might be further
investigation into other members of Merit Matters. (Pl. 56.1
Stm’t. Response to Mannix and Kearney ¶¶ 90-91.) After their
conversation, Kearney called Lemonda to purportedly inquire
about Mannix’s disciplinary proceedings and whether the
investigation would extend beyond Mannix, to which Lemonda
explained that the investigation would not go further than
Mannix. (Pl. 56.1 Stm’t. Response to Mannix and Kearney ¶¶ 92-
92.) Plaintiff disputes the truth of Mannix’s and Kearney’s
exculpatory story and cites evidence that Kearney obtained
Lemonda’s number and called Lemonda, but had no reason to speak
with Lemonda about Mannix’s pending disciplinary case, because
Lemonda did not handle Mannix’s disciplinary case and would not
handle investigations regarding firefighters like Kearney. (See
Pl. Opp. at 52-53 and cited evidence; ECF No. 170-5, Exhibit E
at 95-101; ECF No. 170-8, Exhibit F at 78-79; 96-98.) Moreover,
Lemonda had no work-related interactions with Kearney since 1994
and had not spoken to him for at least five years. (Id.)
Plaintiff’s evidence creates an issue of fact whether Kearney,
Mannix, and Lemonda “generated a false narrative . . . to cover
up . . . their illicit agreement” to act together in leaking
inflammatory information to the media in furtherance of their
objective to discredit the Vulcan Class Action. (See Pl. Opp.
at 51-52.) Mannix was disciplined in separate proceedings for
the unauthorized disclosure of confidential information. (Id.
at 53.)
In response to the New York Post article, the FDNY
Bureau of Investigations and Trials (“BIT”) interviewed members
of the FDNY, but not defendant Mannix or anyone connected with
Merit Matters, reviewed email accounts, reviewed social media
accounts, and studied transmissions, logbooks, and rosters, to
determine who had provided the New York Post with the
information in the article. (Pl. 56.1 Stm’t. Response to City
¶¶ 86-87.) Upon concluding the investigation, the BIT could not
substantiate whether Curneen may have been involved in providing
information to the New York Post. (Pl. 56.1 Stm’t. Response to
City ¶¶ 91-92.)
Plaintiff contends that he has “marshalled substantial
evidence that each of the individual defendants were directly or
indirectly involved” in leaks about plaintiff to the Post. (See
Pl. 56.1 Stm’t. Response to Mannix and Kearney ¶ 79.) Both the
City Defendants and Individual Defendants, however, assert that
they did not speak with the New York Post. (Pl. 56.1 Stm’t.
Response to City ¶¶ 101-105; Response to Mannix and Kearney ¶
97.) Plaintiff disputes the “self-serving denials,” and cites
Curneen’s knowledge of the article before it was published and
notes that he called plaintiff and said he had “nothing to do
with it.” (Id.) Lemonda testified that he received a call from
a New York Post reporter several days before the article was to
be published, inquiring about “a firefighter who has problems,”
and the April 2nd fire. (See Pl. 56.1 Stm’t. Response to Lemonda
¶ 57.) Lemonda asserts that he told the reporter that he was
not at the fire and did not know anything about the incident
involving the plaintiff. (Id. ¶¶ 57-59.) Plaintiff correctly
notes that the court does not make credibility determinations in
deciding summary judgment motions, and cites evidence that there
were at least four calls between Lemonda and the Post reporter
for 50 minutes. (Id. ¶ 58.) Mannix and Kearney assert that
they “were not sources, nor did they provide or have access to
information used in the article.” (See Pl. 56.1 Stm’t. Response
to Mannix and Kearney ¶ 77.) Plaintiff counters that even if
Mannix and Kearney were not quoted in the article, the evidence
shows that Lemonda spoke to Kearney and Mannix and the Post
reporter several days before the article was published. (Pl.
Opp. at 52-54) (citing ECF No. 170-8, Exhibit F at 72, 23, 94-
99.) Plaintiff asserts that disputes of material fact as to
defendants’ participation in leaking plaintiff’s confidential
information are established by the evidence cited in his 56.1
Statement and Opposition Memorandum.
II. Procedural History
The March 31, 2018 Memorandum and Order sets forth
this case’s procedural history in detail up to the date of that
decision denying defendants’ motion to dismiss the amended
complaint, that procedural history is incorporated by reference
herein. (ECF No. 82, Order.) As such, this court will review
in this section the procedural history post the March 31, 2018
Memorandum and Order.
Shortly after this court’s Memorandum and Order, the
parties engaged in discovery proceedings. (See ECF No. 86,
Motion for Discovery; ECF No. 98, Scheduling Order; Dkt. Order
8/17/2018.) Plaintiff also filed a second amended complaint on
April 30, 2018. (ECF No. 87, Amended Complaint.) On August 22,
2018, this court granted plaintiff leave to move to file a third
amended complaint. (Dkt. Order 8/22/2018.) This court granted
plaintiff’s motion to file a third amended complaint on October
24, 2018. (ECF No. 113, Order Granting Motion for Leave to File
Amended Complaint.) Plaintiff filed his third amended complaint
on October 31, 2018. (ECF No. 115, Third Amended Complaint.)
The Third Amended Complaint brought claims against Michael Gala,
Michael Curneen, Jake Lemonda, Paul Mannix, Joseph Kearney,
James McCarthy, John and/or Jane Does, and the City of New York.
(See Id.) On May 6, 2019, the court ordered that James McCarthy
be dismissed with prejudice. (ECF No. 139, Order Dismissing
McCarthy.)
On September 4, 2019, this court held a pre-motion
conference to discuss defendants’ anticipated motions for
summary judgment. (Minute Entry for 9/4/2019 proceedings.) At
the conference, the parties were amenable to mediation. (Id.)
The Court set forth a briefing schedule and ordered that if the
parties wished to delay briefings in light of the mediation,
they should inform the court. (Id.) On September 24, 2019,
Joseph Kevin McKay was selected as a mediator. (Selection of
Mediator, 9/24/2019.) On October 25, 2019, the mediation
concluded and the case was not settled. (Report, 10/25/2019.)
On March 18, 2020, the City Defendants filed a motion
for summary judgment along with their Rule 56.1 Statement,
accompanying affidavits, Memorandum in Support of their Motion,
their reply in support of the motion, and a joint deposition
appendix to the accompanying affidavits. (See ECF No. 165,
Motion for Summary Judgment; ECF No. 166, City Defendants Rule
56.1 Statement; ECF No. 167, City Defendants’
Affidavit/Declaration; ECF No. 168, Memorandum in Support of
Motion for Summary Judgment; ECF No. 169, City Defendants’
Reply; and ECF No. 170, Joint Deposition Appendix.) On March
19, 2020, Jake Lemonda filed his motion for summary judgment,
his Rule 56.1 Statement, his affidavit in support of the motion,
his Memorandum in Support of the Motion, and a Reply in Support
of the Motion. (See ECF No. 171, Motion for Summary Judgment;
ECF No. 172, Lemonda’s Rule 56.1 Statement; ECF No. 173,
Lemonda’s Affidavit/Declaration; ECF No. 174, Memorandum in
Support of the Motion; ECF No. 184, Lemonda’s Reply.) Also on
March 19, 2020, the Individual Defendants, Mannix and Kearney,
filed their motion for summary judgment, their 56.1 statement,
their affidavits in support of their motion, their Memorandum in
Support of their Motion, and their Reply in support of the
Motion. (See ECF No. 175, Motion for Summary Judgment; ECF No.
176, Mannix and Kearney 56.1 Statement; ECF No. 177, Mannix and
Kearney Affidavit/Declarations; ECF No. 178, Memorandum in
Support of the Motion; ECF No. 183, Mannix and Kearney Reply.)
Johnson filed a Memorandum in Opposition to all of the
Summary Judgment Motions, an opposing response to all of
defendants’ 56.1 statements, and accompanying affidavits or
declarations, and exhibits in opposition. (ECF No. 179,
Memorandum in Opposition; ECF No. 180, Plaintiff Rule 56.1
Statement; ECF No. 181, Affidavit in Opposition; and ECF No.
182, Affidavit in Opposition.) On March 27, 2020, Johnson filed
a motion for leave to file a “short, five-page sur reply in
connection with three points raised by the City Defendants in
their reply.” (ECF No. 190, Motion for Leave to File.) This
court granted plaintiff’s motion on March 31, 2020. (Dkt. Order
3/31/2020.) Plaintiff filed his sur-reply on April 7, 2020.
(ECF No. 192, Memorandum in Opposition Re Sur Reply.) The City
Defendants filed a reply to plaintiff’s sur-reply on April 14,
2020. (ECF No. 195, Reply in Response to Plaintiff’s Sur-
Reply.)
LEGAL STANDARD
Summary judgment shall be granted to a movant who
demonstrates “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for
these purposes when it ‘might affect the outcome of the suit
under the governing law.’” Rojas v. Roman Catholic Diocese of
Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson,
477 U.S. at 248). No genuine issue of material fact exists
“unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477 U.S. at 249-50
(citations omitted).
When bringing a motion for summary judgment, the
movant carries the burden of demonstrating the absence of any
disputed issues of material fact and entitlement to judgment as
a matter of law. Rojas, 660 F.3d at 104. In deciding a summary
judgment motion, the court must resolve all ambiguities and draw
all reasonable inferences against the moving party. Flanigan v.
Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). A moving party may indicate the absence of a
factual dispute by “showing . . . that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1)(B). Put another way, “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Ind. Co., 475 U.S. at 587.
Once the moving party has met its burden, “the
nonmoving party may not rest upon mere conclusory allegations or
denials.” Castro v. Cty. of Nassau, 739 F. Supp. 2d 153, 165
(E.D.N.Y. 2010) (citing R.G. Grp., Inc. v. Horn & Hardart Co.,
751 F.2d 69, 77 (2d Cir. 1984)). Rather, “the nonmoving party
must come forward with admissible evidence sufficient to raise a
genuine issue of fact for trial in order to avoid summary
judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d
Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986)). In deciding a motion for summary judgment, the
court is dutybound not to weigh evidence or assess the
credibility of witnesses. United States v. Rem, 38 F.3d 634,
644 (2d Cir. 1994).
“Employment discrimination cases raise special issues
on summary judgment.” Kenney v. New York City Dep’t of Educ.,
No. 06-cv-5770, 2007 U.S. Dist. LEXIS 77926, at *7 (S.D.N.Y.
Oct. 22, 2007). Specifically, employment discrimination cases
that involve a dispute concerning the “employer’s intent and
motivation” may not be suitable for summary judgment. Id.; see
also Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).
The Second Circuit has noted, however, that it “went out of
[its] way to remind district courts that the impression that
summary judgment is unavailable to defendants in discrimination
cases is unsupportable.” Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000) (quotation omitted); see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)
(“trial courts should not ‘treat discrimination
differently from other ultimate questions of fact’”) (quoting
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993));
Holcomb, 521 F.3d at 137 (“Even in the discrimination context,
however, a plaintiff must provide more than conclusory
allegations to resist a motion for summary judgment.”).
DISCUSSION
I. Plaintiff’s Retaliation Claim under Title VII, State Law,
and Local Law
As noted above, the complaint asserts retaliation
claims against all defendants pursuant to Title VII, the New
York State, and New York City Human Rights Laws against all
defendants. In this court’s March 31, 2018 Order, the court
granted the City Defendants’ motion to dismiss plaintiff’s Title
VII claim arising out of events that occurred prior to April 9,
2015 because the continuing violation doctrine exception did not
apply to “discrete acts.” (See ECF No. 82, Order at 37-40.)
The court also ruled that “plaintiff may, however, rely on
events occurring prior to April 9, 2015 in (a) seeking to
establish the causation element of his Title VII, NYSHRL, and
NYCHRL retaliation claims and (b) seeking to establish his
retaliatory hostile work environment claim.” This Court denied
Lemonda’s motion to dismiss as to plaintiff’s retaliation claims
under NYSHRL and NYCHRL because Johnson had sufficiently pled
that Lemonda was involved in, or aided and abetted, the alleged
retaliation. (ECF No. 82, Order at 32-36.)
A. Legal Standard
The federal anti-retaliation statute “seeks to secure
th[e] primary objective [of] preventing an employer from
interfering (through retaliation) with an employee’s efforts to
secure or advance enforcement of [Title VII’s] basic
guarantees.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 63 (2006). As with discrimination claims, federal and
state retaliation claims are governed by the McDonnell Douglas
framework. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d
Cir. 2013).
To establish a prima facie case of retaliation under
federal and state law, a plaintiff must show (1) participation
in a protected activity, (2) the defendant’s knowledge of the
protected activity, (3) an adverse employment action, and (4) a
causal connection between the protected activity and the adverse
employment action. Id. at 844. Once the plaintiff makes a
prima facie showing, the burden shifts to the employer to
articulate a legitimate, non-retaliatory reason for the
employment action. Id. at 845 (citing United States v. Brennan,
650 F.3d 65, 93 (2d Cir. 2011)). After a non-retaliatory reason
has been articulated, the presumption of retaliation drops, and
the plaintiff must then demonstrate the non-retaliatory reason
is a mere pretext for retaliation. Id.
A plaintiff “alleging retaliation in violation of
Title VII must show that retaliation was a ‘but-for’ cause of
the adverse action, and not simply a ‘substantial’ or
‘motivating’ factor in the employer's decision.” Id. (citing
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360
(2013)). This does not require proof that retaliation was the
only cause for the employer’s action, but that the adverse
action would not have occurred absent the retaliatory motive.
Id. at 846. “A plaintiff may prove that retaliation was a but-
for cause of an adverse employment action by demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions
in the employer's proffered legitimate, nonretaliatory reasons
for its action.” Id.
With respect to retaliation claims, courts consider a
broader range of conduct than they do for discrimination claims.
Unlike the discrimination provision, the anti-retaliation
provision of Title VII is not limited to discriminatory actions
that affect the terms and conditions of employment. Burlington,
548 U.S. at 63. Courts properly assess “whether the actions of
an employer could dissuade a reasonable worker from making a
charge of discrimination.” Conforti v. Sunbelt Rentals, Inc.,
201 F. Supp. 3d 278, 302 (E.D.N.Y. 2016).
“The temporal proximity of events may give rise to an
inference of retaliation for the purposes of establishing a
prima facie case of retaliation under Title VII, but without
more, such temporal proximity is insufficient to satisfy [the
plaintiff]’s burden to bring forward some evidence of pretext.”
El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir.
2010). “[E]mployer actions prohibited by Title VII’s anti-
discrimination provision are limited to conduct that affects the
terms and conditions of employment, while under Title VII’s
anti-retaliation provision, the challenged action need not
affect the terms and condition of employment in order to
constitute unlawful retaliation.” Siddiqi v. New York City
Health & Hosps. Corp., 572 F. Supp. 2d 353, 372 (S.D.N.Y. 2008)
(citing Burlington, 548 U.S. at 63-64).
“The NYSHRL allows for individual liability under two
theories: (1) if the defendant has an ownership interest in the
employer or has the authority to hire and fire employees, and
(2) if the defendant was aiding and abetting the unlawful
discriminatory acts of others.” Setelius v. Nat’l Grid Elec.
Servs. LLC, No. 11-CV-5528(MKB), 2014 WL 4773975, at *34
(E.D.N.Y. Sept. 24, 2014) (internal citations and quotation
marks omitted) (citing N.Y. Exec. L. § 296(1)-(2), (6)); see
also N.Y. Exec. L. § 296(6) (“It shall be an unlawful
discriminatory practice for any person to aid, abet, incite,
compel or coerce the doing of any of the acts forbidden under
this article, or to attempt to do so.”).
The “NYCHRL’s retaliation provision is broader than
Title VII’s[,] protecting plaintiffs who ‘oppos[e] any practice
forbidden under’ the law from conduct ‘reasonably likely to
deter a person engaging in such action.’” Id. at 76 (citing
Mihalik, 715 F.3d at 112). “While the NYCHRL has a less
demanding standard [for retaliation], a plaintiff still must
establish that there was a causal connection between [his]
protected activity and the employer’s subsequent action, and
must show that a defendant’s legitimate reason for [its action]
was pretextual or motivated at least in part by an impermissible
motive.” Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp.
3d 429, 449 (S.D.N.Y. 2018) (quotation omitted).
B. Prima Facie Claim of Retaliation
Plaintiff argues that he is “simply the latest victim
of the FDNY backlash against those who seek to assert their
civil rights” and that the retaliation against him “began
immediately upon his appointment at Engine 257 as a ‘priority
hire,’” under the Vulcan Class Action, and “it never really
stopped.” (ECF No. 179, Memorandum in Opposition (“Pl. Opp.”)
at 7.)
In this Court’s March 31, 2018 order, the court
determined that plaintiff had engaged in protected activity
because he participated in the Vulcan Class Action, which
challenged unlawful employment discrimination, and the plaintiff
accepted appointment as a firefighter pursuant to the remedial
order entered in that case. (See ECF No. 82, Order at 29-30.)
Based on plaintiff’s testimony that he was not a plaintiff in
the Vulcan Class Action Lawsuit, (Pl. 56.1 Stm’t. Response to
City ¶ 2), the City Defendants and Lemonda argue that
plaintiff’s beneficiary status as a “priority hire” does not
constitute a protected activity. (See ECF No. 168, City
Defendants’ Memorandum at 3; ECF No. 174, Lemonda’s Memorandum
at 5.) Plaintiff, however, testified that he “participated in
and benefited from the remedial orders in the Vulcan lawsuit.”
(Pl. 56.1 Stm’t. Response to City ¶ 2; ECF No. 170-1 at 16-17.)
Therefore, because plaintiff assisted with the Vulcan Class
Action by providing a deposition, and separately benefited from
the lawsuit as a priority hire, plaintiff’s actions constitute
protected conduct. See N.Y. Exec. Law § 296(1)(e), (3-a)(c),
and (7) (each providing that “oppos[ing] any practices forbidden
under this article or . . . fil[ing] a complaint, testif[ying]
or assist[ing] in any proceeding under this article” constitute
protected conduct).
As to whether defendants had knowledge of plaintiff’s
protected conduct, the City Defendants and Lemonda argue that
“the record is devoid of any evidence that the anonymous source
who allegedly disclosed plaintiff’s stress-related medical leave
status [to the New York Post] was aware of plaintiff’s status as
a ‘priority hire.’” (ECF No. 168, City Defendants’ Memorandum at
3; see also ECF No. 174, Lemonda’s Memorandum at 5.) The New
York Post article, however, cites numerous unnamed FDNY sources
and “insiders” and described plaintiff as a black priority hire
and a “probie,” who took two medical leaves, and was retrained
at the Academy,(ECF No. 182-26), information that the reporter
could only have obtained from the FDNY. Plaintiff, further
contends that “several members of his firehouse made comments to
Johnson about his age” and that “Curneen [] agreed that
Johnson’s age was a basis for believing that Johnson was a
priority hire.” (Pl. Opp. at 42; ECF No. 164-3, Exhibit at
167.) Moreover, the Fire Department and City were aware that
plaintiff was a priority hire, given the Vulcan Class Action
orders. Defendant Gala received a list of Black and Hispanic
firefighters from Human Resources with plaintiff’s name on April
2, 2015, and emails on April 3, 2015 with Gloria Aiken of the
FDNY tenure desk that noted plaintiff’s status as a priority
hire. (ECF Nos. 182-21, 182-28, 182-11, 182-39-182-44.)
It is not necessary that Plaintiff prove that the
specific actors knew of the protected activity as long as
Plaintiff can demonstrate general corporate knowledge. See
Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d
81, 92 (2d Cir.2011); see also Trivedi v. N.Y. Unified Court
Sys. Office of Court Admin., 818 F.Supp.2d 712, 736
(S.D.N.Y.2011) (“A plaintiff need not prove that the specific
actors within an organization were aware that the plaintiff made
allegations of retaliation to make out a prima facie retaliation
claim; rather, ‘general corporate knowledge that the plaintiff
has engaged in a protected activity’ is sufficient.”) In this
instance, this court previously determined that plaintiff
adequately pleaded that the City and the FDNY had knowledge of
plaintiff’s designation as a “priority hire,” (see ECF No. 82,
Order at 30), and plaintiff has now presented sufficient
evidence of knowledge, as demonstrated by FDNY documents
identifying plaintiff as a priority hire. Additionally, the New
York Post article cites to FDNY sources who stated, in an
arguably self-serving manner, that they were not retaliating
against Johnson because he was a priority hire, all of which
establishes a disputed issue of fact whether members of the FDNY
had knowledge of Johnson’s status. (Pl. Opp. at 41; see also
ECF No. 182-52, Exhibit.) The record also shows that Curneen
understood plaintiff to be a “priority hire,” inter alia,
because of his age. (Pl. 56.1 Stm’t. Response to City ¶ 7; ECF
No. 164-3, at 167.) Plaintiff presented evidence of an email
dated August 4, 2014, to Michael Gala, identifying plaintiff as
a priority hire in the “1/27/14 proby class.” (ECF No. 182-28,
Plaintiff’s Exhibit.) Viewing the evidence in light most
favorable to Plaintiff, the non-moving party, Plaintiff has
established that Defendants had knowledge of plaintiff’s
protected activity as a priority hire.
Defendants Lemonda, Mannix, and Kearney argue that
plaintiff has failed to establish an “adverse action.” (ECF No.
174, Lemonda’s Memorandum at 9-10; see also ECF No. 178, Mannix
and Kearney’s Memorandum at 20.) Plaintiff, however, contends
that there is “evidence to support each of the adverse–action
contentions about the treatment Johnson received at the Engine
257 firehouse and the Post story.” (Pl. Opp. at 44.)
A materially adverse action is one that “produces an
injury or harm” in that it “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Rivera v. Rochester Genesee Reg’l Transp.
Auth., 743 F.3d 11, 20 (2d Cir. 2014) (quoting Burlington N. &
Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165
L.Ed.2d 345 (2006)). “Trivial harms—i.e., those petty slights
or minor annoyances that often take place at work and that all
employees experience—are not materially adverse.” Rivera, 743
F.3d at 25 (internal quotation marks omitted). “Material
adversity is to be determined objectively, based on the
reactions of a reasonable employee.” Tepperwien v. Entergy
Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011).
Plaintiff has established that he suffered an “adverse
action” due to the treatment he endured at Engine 257. Indeed,
plaintiff told Dr. Kelly, the Chief FDNY Medical Officer, that
he did not think the treatment he received was because of his
race, because he was reluctant to accuse anyone of racism at
that time due to fear that it would lead to more problems of
retaliation. (Pl. 56.1 Stm’t. Response to City ¶ 67.) The City
Defendants mistakenly argue that “none of [the] alleged
retaliatory acts find factual support in the record,” (ECF No.
168, City Defendants’ Memorandum at 7), but this is incorrect.
First, plaintiff argues that upon his arrival as a “priority
hire” at Engine 257, his daily drills to don his equipment were
“unnecessary, and a reasonable jury could easily find that
having to publicly practice putting on your pants and gear was
humiliating.” (Pl. Opp. at 56.) Second, plaintiff also asserts
that Curneen’s performance evaluations were inconsistent and
that when asked about rating Johnson “unsatisfactory,” Curneen
responded, “that he had no basis for that rating.” (Id. at 57)
(citing ECF No. 164-3, at 173-174.) Third, Johnson asserted
that after the April 2, 2015 fire, he experienced both silent
treatment and “berating” by those at Engine 257. (Id. at 57.)
It is also evident that plaintiff suffered an “adverse
action” by the FDNY’s disclosure to and publication of his
personal, confidential information in the New York Post article
and thereafter. The Individual Defendants assert that the Post
article qualifies as a “petty slight or minor annoyance” and
cite to Van Dyke v. Partners of Debevoise & Plimpton LLP, No. 12
CIV. 8354 GBD RLE, 2013 WL 5375542, at *9 (S.D.N.Y. Sept. 24,
2013). (ECF No. 178, Mannix and Kearney’s Memorandum at 19-20.)
In their Rule 56.1 statements, the City Defendants and Lemonda
emphasize that plaintiff’s close relationships with those
outside the FDNY were not negatively impacted following the
article and that plaintiff became a tenured firefighter. (Pl.
56.1 Stm’t. Response to City ¶¶ 109-126; Response to Lemonda ¶¶
69-80.) Unlike the plaintiff in Van Dyke who claimed
retaliation because “someone linked to Debevoise posted comments
on an ATL article,” which she claims “related to her,” (No. 12
CIV. 8354 GBD RLE, 2013 WL 5375542 at 9), Johnson argues that
“the Post story went viral on the Internet and spawned a full-
throated media lynching of Johnson.” (Pl. Opp. at 33.)
Additionally, as the court first noted in its March
31, 2018 Order, it is undisputed that the Article cites several
unnamed FDNY sources, portrays plaintiff in an extremely
negative light, including by referring to him as a ‘firefighter
in name only,’ stating that plaintiff had evaded several fires
and that his colleagues had nicknamed him ‘Tragic Johnson,’
portraying plaintiff to be so inept as to be a safety risk, and
generally suggesting that plaintiff is unfit to serve as a
firefighter. (ECF No. 82 at 32; ECF No. 182-26, Exhibit; ECF
No. 182-29, Exhibit.) As a probationary employee of the FDNY,
known as “New York’s bravest,” plaintiff suffered humiliation
sufficient to deter a reasonable person from engaging in
protected activity of being hired under programs designed to
correct discrimination. Defendants’ adverse actions deterred
plaintiff’s complaints of discriminatory treatment even to the
FDNY Medical Officer, as plaintiff testified. Plaintiff has
therefore established that he suffered an adverse action because
of and following the publication of his personal and
confidential information in the article.
Defendants next argue “plaintiff also fails to
establish a causal connection between the acceptance of
employment following the Vulcan suit and the disclosure of his
medical leave status, as there is no temporal proximity between
the time of the alleged activity and the article.” (ECF No.
168, City Defendants’ Memorandum at 3-4; see also ECF No. 174,
Lemonda’s Memorandum at 6; ECF No. 179, Mannnix and Kearney
Memorandum at 21-22.) Plaintiff, however, had returned to duty
as a probationary employee in February 2015, after an extended
medical leave since July 4, 2014, after he sustained a shoulder
injury at a fire. (Pl. 56.1 Stm’t. Response to City ¶¶ 32-38.)
Plaintiff correctly asserts that “the Post story [of May 17,
2015] was driven in large part based on the April 2, 2015 fire,
and thus the story was published within a brief period of time
(a month and a half) after the opportunity first arose,”
following plaintiff’s return to Engine 257 from medical leave.
(Pl. Opp. at 50.) Plaintiff cites the FDNY’s unlawful
disclosures of plaintiff’s personal confidential information in
the Post story regarding the April 2, 2015 fire as the
retaliatory act that occurred approximately three months after
he resumed his protected activity as a probationary “priority
hire.”
To establish a “causal connection” in the Second
Circuit, a plaintiff must show that his protected activity was a
“substantial motivating factor” in the adverse employment
decision. See Deters v. Lafuente, 368 F.3d 185, 190 (2d Cir.
2004) (per curiam) (citation omitted). “This may be done either
directly, by evidence of retaliatory animus, or indirectly, by
circumstantial evidence, such as by showing that the protected
activity was closely followed in time by the adverse employment
decision.” Bierce v. Town of Fishkill, 656 F. App'x 550, 552
(2d Cir. 2016) (summary order).
Defendants contend that there is no evidence in the
record to show that they were involved in providing information
to the Post regarding plaintiff’s actions the day of the April
2, 2015 fire, (Pl. 56.1 Stm’t. Response to City ¶¶ 101-105;
Response to Mannix and Kearney ¶ 97; Response to Lemonda ¶¶ 57-
59), thereby evincing no retaliatory animus. Specifically,
Lemonda asserts that plaintiff never had a relationship with him
and as of September 2009, Lemonda has been on full-time paid
“leave” from the FDNY. (Pl. 56.1 Stm’t. Response to Lemonda ¶¶
49, 86.) Plaintiff, however, cites to abundant circumstantial
evidence that the defendants leaked the information to the New
York Post reporter in retaliation for plaintiff’s status as a
priority hire, including phone records showing calls between
Lemonda, Mannix, and Kearney, and phone records showing calls
between Lemonda and the New York Post reporter, and the article
quoting FDNY sources as insiders. (Pl. Opp. at 36, 51-52.)
Further, plaintiff contends that the fact that the reporter
“called Lemonda to talk about Johnson and the April 2nd fire
provides a basis for an inference that Mannix, directly or
indirectly, told Edelman [the reporter] that Lemonda could
provide her with information relevant to the story.” (Id at
36.) Plaintiff also cites to phone records that indicate
Lemonda called Kearney on his cell phone after his 31-minute
phone call with the reporter. (Id. at 37.) Plaintiff also
proffers memos and emails between Curneen and Gala, dated April
10, 2015, detailing plaintiff’s actions on April 2, and the next
day, (ECF No.182-9, Exhibit), that contain the same confidential
information regarding plaintiff that appeared in the subsequent
Post article. Indeed, the Post article states, “shortly after
the [April 2] incident, a chief sent a letter to the Brooklyn
division describing concerns about Johnson, a source said.”
(ECF No. 182-26, Exhibit 26.) Plaintiff also proffers a
multitude of Merit Matters documents, authored by Mannix,
criticizing judicial orders in the Vulcan Class Action, the
judge who presided over the Vulcan Class Action, priority hires
and their abilities, and evidence that Mannix, Kearney, and
Gala, were involved with the Organization. (Pl. Opp. at 14-15
(citing ECF No. 182-34).)
Plaintiff argues that “each individual defendant in
this action (Curneen, Gala, Mannix, Kearney and Lemonda) played
a specific role in the scheme to use the Post to execute a hit
job on another minority beneficiary of the Class Action.” (Id.
at 34.) Additionally, plaintiff contends that “the City of New
York did nothing to protect Johnson.” (Id.) Plaintiff further
asserts that on Saturday, May 16th, the Deputy Commissioner of
External Affairs emailed “top FDNY staff” that the Post was
writing a story about Johnson. (Id. at 38.) Plaintiff cites to
said email which references plaintiff’s status as a “priority
hire.” (see id; ECF No. 182-58.) Plaintiff also describes that
on May 16th, plaintiff was also contacted by Curneen who informed
him about the Post story and that Curneen stated “he had nothing
to do with it.” (Id.)
In this court’s March 31, 2018 order, the court
determined that “the complaint’s allegations regarding the
Article and the roles of Gala, Curneen, and Lemonda in its
publication, together with the inferences reasonably drawn from
these allegations, suffice to allege a materially adverse and
retaliatory employment action.” (ECF No. 82 at 32-33.) If, the
jury finds, based on direct and circumstantial evidence, that
the City Defendants, the Individual Defendants, and Lemonda
contributed to the disclosure of plaintiff’s confidential
information that appeared in the Post article, a jury could also
find that they acted in retaliation against plaintiff because he
was a priority hire. One who assisted in the release of
plaintiff’s information and the publication of the Article would
be an aider and abettor of the retaliatory conduct. Viewing the
evidence, both circumstantial and direct, in the light most
favorable to the non-moving plaintiff, a reasonable jury could
find that defendants subjected plaintiff to humiliating
treatment and improperly disclosed plaintiff’s confidential
medical and personal information in retaliation for plaintiff’s
status as a priority hire.
Defendants also argue that there was “no temporal
proximity between the time of the alleged protected activity and
the article” and cite to cases in the Second Circuit that
support the notion that “a passage of more than two months
between the protected activity and the adverse employment action
does not allow for an inference of causation.” (ECF No. 168,
City Defendants’ Memorandum at 4; see also ECF No. 174,
Lemonda’s Memorandum at 18; see also ECF No. 178, Mannix and
Kearney’s Memorandum at 21-22.) This court disagrees with
defendants’ characterization plaintiff’s failure to show
temporal proximity between the protected activity and the
adverse action. During the course of his assignment at Engine
257, as a “priority hire,” plaintiff avers that he was singled
out to perform drills to put on his PPE in front of other
firefighters at the start of every shift, that his dietary
restrictions were not accommodated, that his suspenders were
tampered with and tangled with his boots, causing him to miss
responding to an alarm on April 3, 2015, that his confidential
medical and personnel information, and re-training was leaked to
the New York Post reporter who cited several unnamed FDNY
sources and insiders, all of which occurred soon after he
returned to Engine 257 in February 2015.
Because plaintiff has provided sufficient evidence to
establish a prima facie case of retaliation, defendants must
article a legitimate, nondiscriminatory basis for its action.
See Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004); see
also Coffey v. Dobbs Int'l Servs., Inc., 170 F.3d 323, 326 (2d
Cir.1999) (stating that burden-shifting applies to retaliation
claims under Title VII.) Defendants have failed to do so.
Instead, only the City defendants hypothesize that someone could
have retaliated against the plaintiff because of his
“performance as a firefighter” or that the Post’s source “may
have just disliked the plaintiff personally.” (ECF No. 168,
City Defendants’ Memorandum at 14.)
Accordingly, the defendants’ motion for summary
judgment as to the plaintiff’s Title VII retaliation claims are
denied. Because Title VII and the NYSHRL are evaluated under
the same standard, defendants’ motions for summary judgment on
the plaintiff’s NYSHRL claims are also denied for the reasons
provided above. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d
1170, 1177 (2d Cir. 1996) (“We consider [the plaintiff’s] state
law claims in tandem with her Title VII claims because New York
courts rely on federal law when determining claims under the New
York [State] Human Rights Law.”)
“To prevail on a retaliation claim under the NYCHRL,
the plaintiff must show that [he] took an action opposing [his]
employer’s discrimination and that, as a result, the employer
engaged in conduct that was reasonably likely to deter a person
from engaging in such action.” Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013).
Despite the more lenient standard, a plaintiff must still
establish, however, that “there was a causal connection between
his protected activity and the employer's subsequent action, and
must show that a defendant's legitimate reason for his
termination was pretextual or ‘motivated at least in part by an
impermissible motive.’” Brightman v. Prison Health Serv., Inc.,
108 A.D.3d 739, 970 N.Y.S.2d 789, 792 (2013)); see also Wilcox
v. Cornell Univ., 986 F.Supp.2d 281, 287, 2013 WL 6027922, at 4
(S.D.N.Y. Nov. 14, 2013) (“[U]nder all three statutes, Plaintiff
must demonstrate some evidence that ‘link[s] her complained-of
[treatment] to a retaliatory motivation.’” Because plaintiff
has presented evidence to establish a prima facie retaliation
case, and in turn, a causal connection between the protected
activity and the subsequent action, defendant’s motion for
summary judgment with respect to plaintiff’s NYCHRL also fails.
Therefore, the City Defendants’ motions for summary
judgment as to the Title VII, NYSHRL, and NYCHRL are denied.
Lemonda and the Individual Defendants’ motions for summary
judgment as to the NYSHRL and NYCHRL are also denied because a
reasonable jury could find that they either participated in, or
aided and abetted in the retaliatory actions.
C. Retaliatory Hostile Work Environment Claim under Title
VII, State Law, and Local Law against the City
Defendants
Plaintiff also alleges a claim of retaliatory hostile
work environment against the City Defendants in violation of
Title VII, the NYSHRL, and the NYCHRL, claiming that the City
Defendants subjected him to a hostile work environment in
retaliation for being a “priority hire.” (See Pl. Opp at 7)
(“The retaliation began immediately upon his appointment at
Engine 257 as a ‘priority hire’ Firefighter pursuant to the
federal court’s mandate. And it never really stopped.
Humiliating drills about putting on his pants, bogus performance
evaluations, and a forced psychiatric evaluation were some of
the indignities that Johnson suffered on the job.”)
“To establish a claim for retaliatory hostile work
environment, ‘a plaintiff must satisfy the same standard that is
applied generally to hostile work environment claims regarding
the severity of the alleged conduct.’” Bacchus v. New York City
Dep’t of Educ., 137 F. Supp. 3d 214, 244 (E.D.N.Y. 2015)
(quoting Sclafani v. PC Richard & Son, 668 F. Supp. 2d 423, 438
(E.D.N.Y. 2009)); accord Liang, 911 F. Supp. 2d at 210
(collecting cases). “The test for ‘hostile work environment’
has both an objective and a subjective component: ‘A work
environment will be considered hostile if a reasonable person
would have found it to be so and if the plaintiff subjectively
so perceived it.’” Mormol v. Costco Wholesale Corp., 364 F.3d
54, 58 (2d Cir. 2004) (quoting Brennan v. Metro. Opera Ass’n,
192 F.3d 310, 318 (2d Cir. 1999)). “Where there is no direct
evidence of such animus, proof of causation may be shown
indirectly, by demonstrating that the protected activity was
followed closely by a retaliatory action.” Cifra v. Gen. Elec.
Co., 252 F.3d 205, 217 (2d Cir.2001).
To establish a causal connection between the protected
activity and alleged retaliatory hostility, “some increase in
the discrimination or harassment-either a ‘ratcheting up’ of the
preexisting behavior, or new, additional forms of harassment-
must occur for the employee to make out a viable retaliation
claim.” Hall v. Parker Hannifan Corp., No. 08-CV-6033, 2009
U.S. Dist. LEXIS 108663, at *15 (W.D.N.Y. Nov. 20, 2009)
(citation omitted); see also Gregory v. Daly, 243 F.3d 687, 690
(2d Cir. 2001) (holding that plaintiff adequately stated a
retaliation claim based on her allegation that her supervisor’s
conduct significantly worsened after she complained about his
sexual harassment and filed a lawsuit against him in state
court). If, however, “the discrimination was just as bad before
the employee complained as it was afterwards, then the
employee’s complaints cannot be said to have led to that
discriminatory behavior.” See Hall, 2009 U.S. Dist. LEXIS
108663, at *15.
Plaintiff disputes that the drills imposed by Curneen
were justified and argues that his daily drills were
“unnecessary, and a reasonable jury could easily find that
having to publicly practice putting on your pants and gear was
humiliating.” (Pl. Opp. at 56.) Plaintiff also asserts that
Curneen’s performance evaluations were inconsistent and that
when asked about rating Johnson “unsatisfactory,” Curneen
responded, “that he had no basis for that rating.” (Id. at 57)
(citing ECF No. 164-3, at 173-174.) Johnson also alleges that
he experienced both silent treatment and “berating” by those at
Engine 257 after the April 2, 2015 fire. (Id. at 57.)
Plaintiff also believed “his work environment was hostile and
abusive,” (Id. at 58), and cites to his conversation with Dr.
Kelly where he detailed wanting to be transferred and being
screamed at by the other firefighters “for no reason at all.”
(ECF No. 167-16, Exhibit P at 11-12.) The City Defendants,
however, dispute plaintiff’s contentions and argue that
“[b]ecause plaintiff never once complained nor requested a
transfer, he cannot credibly establish that he subjectively
perceived his environment to be abusive, and, therefore, City
Defendants are entitled to summary judgment.” (ECF No. 168,
City Defendants’ Memorandum at 13.) Plaintiff has proffered
reasons for being fearful of complaining about his treatment by
defendants. This court disagrees with the City Defendants that
credibility determinations regarding plaintiff’s subjective
perceptions of an abusive and hostile work environment are
appropriate for summary judgment. Instead, a jury must
determine the credibility of all witnesses at trial.
A reasonable jury could conclude that it was not
necessary, and thus retaliatory, for plaintiff to perform drills
before and after every tour, while other probationary officers
did not have to perform drills with such frequency, and that the
demand for drills in front of other firefighters created a
hostile, humiliating work environment by Captain Curneen. (See
Pl. 56.1 Stm’t. Response to City ¶¶ 13-14;) see also Kennedy v.
New York, 167 F. Supp. 3d 451, 461 (W.D.N.Y. 2016)(“[W]hen the
incidents are extremely frequent, particularly over such a short
period of time, it is reasonable to infer that work conditions
were ‘altered for the worse.’”) Plaintiff asserts that
“publicly practicing putting on your pants and gear was
humiliating.” (Pl. Opp. at 56;) see also Schmitt v. City of New
York, No. 15-CV-05992, 2018 WL 5777019, at *5 (E.D.N.Y. Nov. 1,
2018) (“District Courts in this Circuit have held that a jury
could conclude that a supervisor's comments made in front of
plaintiff's colleagues, and ranged from tasteless to cruel and
humiliating, created a hostile work environment.”) Plaintiff
further cites to Curneen’s acknowledgment that ordering
plaintiff to continuously practice his drills was
“embarrassing.” (Pl. Opp. at 56; ECF No. 164-3, 91-92.)
When viewed in totality, the evidence is sufficient to
satisfy plaintiff's minimal burden to establish a prima facie
retaliatory hostile work environment claim. As noted above,
Defendants have failed to articulate a “legitimate,
nondiscriminatory basis” for the retaliatory hostile work
environment. Thus, the City Defendants’ motion for summary
judgment as to plaintiff’s Title VII, NYSHRL, and NYCHRL is
denied as to the retaliatory hostile work environment claim.
II. Federal Civil Rights Claims
A. Individual Liability under Section 1983
Plaintiff alleges that Gala, Curneen, Lemonda,
Kearney, and Mannix, acting under color of state law, retaliated
against plaintiff because of his status as a priority hire, and
violated Section 1983. (See generally Pl. Opp.) “Individuals
may be held liable under §§ 1981 and 1983 for certain types of
discriminatory acts, including those giving rise to a hostile
work environment.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d
206, 226 (2d Cir. 2004); see also Hayut v. State University of
New York, 352 F.3d 733, 753–54 (2d Cir.2003). “Section 1983
liability can be imposed upon individual employers, or
responsible supervisors, for failing properly to investigate and
address allegations . . . when through this failure, the conduct
becomes an accepted custom or practice of the employer.”
Gierlinger v. New York State Police, 15 F.3d at 34 (2d Cir.
1994). Having established a retaliatory hostile work environment
perpetuated by Curneen and Gala, and further contributed to by
evidence that Lemonda and the Individual Defendants leaked of
plaintiff’s confidential medical and personal information in
retaliation for plaintiff’s status as a priority hire, this
court denies summary judgment as to plaintiff’s Section 1983
claim against all defendants.
B. Individual Liability under Section 1981
Plaintiff appears to allege that Lemonda, Mannix, and
Kearney, acting in their individual capacities, violated Section
1981. (See generally Pl. Opp.) Lemonda, Mannix, and Kearney all
seek summary judgment on plaintiff’s Section 1981 claim. Mannix
and Kearney argue that “plaintiff cannot demonstrate that
Defendants possessed discriminatory intent” and that plaintiff
“relies on a series of inferences to impute necessary awareness of
plaintiff’s racial minority status.” (ECF No. 179, Mannix and
Kearney Memorandum at 16-17.)
Pursuant to Section 1981, “a plaintiff must
demonstrate some affirmative link to causally connect the actor
with the discriminatory action.... [P]ersonal liability
under section 1981 must be predicated on the actor's personal
involvement.” Whidbee v. Garzarelli Food Specialties, Inc., 223
F.3d at 75 (internal quotation marks omitted). As this court
detailed above, a jury may rely on circumstantial evidence to
find that defendants, Lemonda, Mannix, and Kearney provided
information to the New York Post. Viewing the evidence and
drawing inferences in the light most favorable to the non-moving
plaintiff, as the court must in deciding a summary judgment
motion, a reasonable jury could find that defendants leaked
plaintiff’s confidential, private information and negative
information about plaintiff to the Post because of their
hostility to the plaintiff’s status as a priority hire. The
matter of whether the leak was contributed to by these three
defendants remains as a question of fact for the jury as
factfinder.
“Where, as here, a plaintiff’s Title VII and equal
protection claims are predicated on the same allegations they ‘must
stand or fall together.’” Arroyo-Horne v. City of New York, No.
07-CV-5213, 2011 U.S. Dist. LEXIS 23904, at *29 (E.D.N.Y. Mar. 9,
2011) (quoting Feingold, 366 F.3d at 159); see also Vivenzio v.
City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (“The substantive
standards applicable to claims of employment discrimination under
Title VII . . . are also generally applicable to claims of
employment discrimination brought under §1981, the Equal
Protection Clause, and the NYSHRL.”). Therefore, the summary
judgment motions by Lemonda, Mannix, and Kearney as to plaintiff’s
Section 1981 claim are denied.
C. Section 1983 Claim for Municipal Liability against the
City of New York
Plaintiff asserts a claim for municipal liability
against the City of New York under Section 1983, based on
alleged violations of the Thirteenth and Fourteenth Amendments.
In this court’s March 31, 2018 Order, the court granted
plaintiff leave to amend his complaint to assert a claim
against the City Defendants “under section 1983 asserting that
they ‘depriv[ed] [plaintiff] of [the] rights, privileges, or
immunities secured by the Constitution and laws’ of the United
States, specifically those rights guaranteed by section 1981.”
(ECF No. 82, Order at 54.) This court also made clear that in
order to enforce the rights guaranteed by Section 1983,
plaintiff must “allege the existence of municipal liability
under Monell v. Department of Social Services, 436 U.S. 658
(1978), and its progeny.” (Id.)
Municipal entities may be held liable under § 1983
where a plaintiff demonstrates that the constitutional violation
complained of was caused by a municipal “policy or custom.”
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Patterson
v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004). “To show
a policy, custom, or practice, the plaintiff need not identify
an express rule or regulation.” Patterson, 375 F.3d at 226
(citing Sorlucco v. N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d
Cir. 1992)). The policy may be inferred based on the fact that
a practice is so persistent or widespread as to constitute
custom or usage with force of law, or that the discriminatory
practice of subordinate employees was so manifest as to imply
constructive acquiescence of senior policymaking officials. Id.
(citing Sorlucco, 971 F.2d at 870-71). A policy may also be
inferred where “‘the municipality so failed to train its
employees as to display a deliberate indifference to the
constitutional rights of those within its jurisdiction.’” Id.
(quoting Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.
1996), cert. denied, 520 U.S. 1155 (1997)). “[D]eliberate
indifference is a stringent standard of fault, and necessarily
depends on a careful assessment of the facts at issue in a
particular case.” Cash v. County of Erie, 654 F.3d 324, 334 (2d
Cir. 2011).
In order to show that the municipality’s failure to
train and supervise constituted “deliberate indifference, the
plaintiff must show “[ (1) ] that [the] policymaker knows to a
moral certainty that her employees will confront a given
situation ... [,][ (2) ] that the situation either presents the
employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history
of employees mishandling the situation ... [,] [and] [ (3) ]
that the wrong choice by the city employee will frequently cause
the deprivation of a citizen's constitutional rights.” See
Cowan v. City of Mount Vernon, 95 F.Supp.3d 624, 638 (S.D.N.Y.
2015) (quoting Jenkins v. City of New York, 478 F.3d 76, 94 (2d
Cir. 2007).
The City contends that there was a training program in
place; therefore, plaintiff also bears the burden of
“identify[ing] a specific deficiency in the [C]ity's training
program and establish[ing] that the deficiency is closely
related to the ultimate injury such that it actually caused the
constitutional deprivation.” Amnesty Am. v. Town of W. Hartford,
361 F.3d 113, 129 (2d Cir. 2004) (citing City of Canton, 489
U.S. at 391, 109 S.Ct. 1197).
The City Defendant further argues that the plaintiff
cannot establish Monell liability. (ECF No. 168, City
Defendants’ Memorandum at 20.) Specifically, the City Defendant
asserts that “at all relevant times the FDNY maintained
comprehensive anti-discrimination and anti-retaliation
policies.” (Id.) Plaintiff, in turn, argues that the City
engaged in “lax investigations” of violations of its anti-
discrimination policies which led to “wrongdoing” and a creation
of “a de facto policy of non-supervision.” (Pl. Opp. at 73.)
Plaintiff also states that the BIT’s investigation into the
undisputed FDNY leaks of personal, confidential, and derogatory
information regarding plaintiff to the Post was not thorough.
(Id. at 75.) Specifically, Johnson notes that the investigation
did not seek phone records which would show communication
between Kearney, Mannix, and Lemonda on or about the day that
Lemonda spoke with the Post reporter. (Id. at 74.) Plaintiff
also details Mannix’s ongoing hostility to priority hires and
his involvement in leaking information to the Post about
priority hires, (Id. at 74-75), and the lack of meaningful
discipline of Mannix by the FDNY. (Id. at 75.) Specifically,
prior FDNY leaks to the Post included information on four other
priority hire firefighters, and a lack of thorough FDNY BIT
investigations to promptly identify, discipline, and deter the
leakers within the FDNY, including Chief Mannix, who had been
investigated and ultimately disciplined for leaks to the Post
prior to the Post article regarding plaintiff. (Id. at 73-76.)
Plaintiff asserts that the lack of meaningful
investigation and discipline was a policy by the City of New
York. “[T]he word “policy” generally implies a course of action
consciously chosen from among various alternatives.” Vives v.
City of New York, 524 F.3d 346, 350 (2d Cir. 2008) (quoting
Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)). The City
has asserted the existence of its anti-discrimination and anti-
retaliation policies, but has not provided evidence of how these
policies were maintained and carried out by senior FDNY
officials. For instance, in the City’s responses to plaintiff’s
interrogatories, the City vaguely asserts that “the FDNY
revamped its EEO [Equal Employment Opportunity] policy to
provide greater clarity and guidance regarding the prohibition
against retaliation,” but does not state what those enhancements
entailed or how they were implemented. (ECF No. 182-24, Exhibit
at 4.) There is no evidence in the record regarding
enhancements that purportedly were made to the FDNY’s training.
Instead, the City broadly asserts that the changes to the
training program “placed greater emphasis and included
interactive exercises on retaliation.” (Id.)
Plaintiff has offered sufficient evidence of
deliberate indifference to the ongoing discrimination and
retaliation against priority hires by the FDNY. The City was on
notice of discrimination and retaliation claims by priority
hires following the Vulcan Class Action lawsuit. See United
States v. City of New York, 905 F. Supp. 2d 438, 449-50
(E.D.N.Y. 2012). Moreover, even though the City was aware of
Mannix’s involvement in leaking information to the New York Post
about other priority hires, Mannix was not disciplined until
after the article about plaintiff was published in the Post.
(Pl. Opp. at 74.) Mannix himself acknowledged that he was aware
of the FDNY’s requirement that he must keep official information
confidential, but he did not think that regulation was
“enforced,” nor was it specific.” (Pl. Opp. at 76) (citing ECF
No. 170-9, Exhibit at 190-192.) Thus, based on the foregoing, a
reasonable jury could infer deliberate indifference by the City.
See Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir.1995)
(holding that deliberate indifference may be inferred if
repeated complaints of civil rights violations are “followed by
no meaningful attempt to investigate or forestall further
incidents.”) A reasonable jury could infer deliberate
indifference because the City took minimal ineffective steps to
thoroughly investigate wrongdoings by the FDNY against priority
hires. The City’s motion for summary judgment on the municipal
liability claim is therefore denied.
D. Section 1985(c) and Section 1983 Conspiracy Claims
Plaintiff contends that each individual defendant,
Curneen, Gala, Mannix, Kearney, and Lemonda “played a key role
in the conspiracy’s objective – to leak false, damaging and
inflammatory information about Johnson in furtherance of their
agenda of attacking the Class Action, the remedial orders, and
the priority hires who participate in the Class Action.” (Pl.
Opp. at 79.)
Plaintiff’s conspiracy claim must fail as a matter of
law. “Where the individual defendants are all employees of the
institutional defendant, a claim of conspiracy will not stand.”
Burrell v. City University of New York, 995 F.Supp. 398, 414
(S.D.N.Y.1998) (citing Everston v. State of New York Mortgage
Agency, 89 Civ. 7474, 1992 WL 6190, at *6 (S.D.N.Y. Jan. 3,
1992); see also Ritzie v. City Univ. of New York, 703 F.Supp.
271, 277–78 (S.D.N.Y.1989) (dismissing a conspiracy claim when
individual defendants were all employees of institutional
defendant university). Here, the alleged conspirators were all
members of the FDNY at the time of the alleged conspiracy. (See
Pl. 56.1 Stm’t. Response to Mannix and Kearney ¶¶ 3-5.) Thus,
this court grants all defendants’ motions for summary judgment
as to plaintiff’s Sections 1985(c) and 1983 conspiracy claims.
CONCLUSION
For the reasons set forth above, the defendants’
motions for summary judgment are granted in part and denied in
part. Specifically,
(1) The City Defendants’ motion for summary judgment as to
the Title VII, NYSHRL, and NYCHRL retaliation claims are
DENIED.
(2) Curneen, Gala, Lemonda and the Individual Defendants’
motions for summary judgment as to plaintiff’s NYSHRL and
NYCHRL claims are DENIED.
(3) The City Defendants’ motion for summary judgment as to
plaintiff’s retaliatory hostile work environment claim is
DENIED.
(4) Curneen, Gala, Lemonda, Kearney and Mannix’s motions
pursuant to Section 1983 are DENIED.
(5) Lemonda and the Individual Defendants’ motions for
summary judgment as to plaintiff’s section 1981 claim
against them are DENIED.
(6) The City Defendant’s motion for summary judgement
pursuant to section 1983, alleging municipal liability is
DENIED.
(7) All of the defendants’ motions for summary judgment as to
plaintiff’s Sections 1985 and 1983 conspiracy claims are
GRANTED.
The parties are directed to confer and jointly advise
the court via ECF as to how they intend to proceed by Friday,
April 9, 2021. The parties are also urged to re-engage in
settlement discussions and seek the assistance of Magistrate
Judge Vera M. Scanlon in any settlement efforts. SO ORDERED.
Dated: March 30, 2021
Brooklyn, New York
___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge