Deering v. Assing

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RYAN DEERING,

Plaintiff, MEMORANDUM AND ORDER

Case No. 21-CV-3601

-against-

THE CITY OF NEW YORK,

NEW YORK CITY POLICE

DEPARTMENT (“NYPD”), RICHARD

ASSING, PETER BORISENKO,

MAGGIE CLAMP, KRISTEL JOHNSON,

TANYA KINSELLA, HERMAN LAI,

KRYSTIN SUAREZ, and BESEMAH

ROGERS,

Defendants.

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Appearances

For Plaintiff: For Defendants:

EDWARD M. TOBIN SYLVIA O. HINDS-RADIX

Ballon Stoll P.C. Corporation Counsel, City of New York

810 7th Avenue, Suite 405 100 Church Street

New York, NY 10019 New York, NY 10007

By: DANIELLE DANDRIGE

KAREN K. RHAU

BLOCK, Senior District Judge:

Plaintiff Ryan Deering (“Deering”), a New York City police officer, brings

this action against New York City, the New York City Police Department

(“NYPD”), and several NYPD personnel. He alleges that he was subjected to

disparate treatment and a hostile work environment on the basis of his race, sex,

and disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. (“Title VII”), the Americans with Disabilities Act of 1990

(“ADA”), New York State Human Rights Law (“SHRL”), and New York City

Human Rights Law (“CHRL”). He also alleges retaliation in violation of these

statutes. Defendants move to dismiss under Federal Rule of Civil Procedure

12(b)(6).

I. SUMMARY OF THE ALLEGATIONS

Deering claims that he was discriminated against over the course of nine

years by his superiors on the basis of his sex (male), race (Latino), and disability.

First, he alleges being subject to “numerous comments indicating animus

towards men” due to his “tall . . . muscular physique” and “activities that are

stereotypically associated with masculinity,” including driving “in good cars like

BMW[s]” and breeding pit bulls. Amended Complaint ¶ 27-30, 147. Deering

claims he was referred to by an NYPD captain as a “stud” in front of superiors and

forced to engage in arm-wrestling in front of others. Id. at ¶ 32. While one of two

males present at his precinct, a female superior demanded Deering install an air

conditioner because he was “a man.” Id. at ¶ 47. In 2019, Deering alleges that a

supervisor sent internal NYPD personnel records on Deering to a woman he was

dating. Deering claims that he was told by a female captain in August 2020 that “a

woman would be able to do [his] job better” and called him a “typical man” Id. at

¶ 90. Soon after, Deering alleges that a lieutenant sent female officers into the

men’s locker room to look for him while he was changing.

In December 2020, an officer told Deering in front of others that their

presiding captain hated Deering because he was a “good looking man,” noting that

she had “criticized” him “for driving a Maserati.” Id. at ¶ 137. The same captain

had previously criticized Deering for driving a “large Jeep.” Id. Deering alleges

that in February 2021, a detective told him that his superior was “offended by

[Deering’s] masculinity,” that the detective could talk to superiors “however he

wants because he is black,” and that supervisors had told a lieutenant to “mess

with” him. Id. at ¶ 158. Deering had earlier been told by a civilian employee that

he was mistreated “because he’s Spanish.” Id. at ¶ 121. In April 2021, Deering was

told by a sergeant that “he should take his shirt off and flex” for superiors “in order

to make them like him.” Id. at ¶ 173. In January 2021, an officer told Deering he

was treated poorly by superiors because they believed him to be a “woman beater”

after an ex-girlfriend accused him of domestic violence, which resulted in dropped

disciplinary charges. Id. at ¶ 140. That same month, superiors requested that

Deering shorten his beard despite his religious accommodation for facial hair. As a

result, Deering was required to request a new accommodation for the length of his

beard, an arduous process.

Deering also alleges dozens of instances of mistreatment on the basis of

shoulder and hip injuries sustained while on and off duty. He alleges that his

superiors and NYPD doctors accused him of fabricating his injuries, though they

were later confirmed by external doctors. Superiors made him submit excessive

paperwork and medical documentation, refused him doctor’s visits, obstructed his

requests for medical records, made it difficult for him to attend physical therapy,

and threatened to take him off restricted duty (to which he had been assigned due

to his injury). One superior told Deering that she had “no reason to like him” and

he was “of no help” while on restricted duty. Id. at ¶ 159. After sustaining another

injury during a vacation in Las Vegas, Deering claims his vacation time for the trip

was retroactively voided as a pretext to discipline him for an unexplained absence.

He alleges that superiors harassed him and his family with phone calls and home

visits checking to see if he was actually on bed rest at his parent’s house.

Deering also claims that between 2014 and 2021, he was frequently

transferred between undesirable “punishment” posts without justification, often

without a partner, which he claims is unsafe and against NYPD policy. Deering

was often given carless posts when extra cars were available or given to rookie

officers, which he claims violated precinct rules. Deering received command

disciplines and was docked paid time and vacation days on multiple instances for

being late to work. He was also told that superiors were “trying to terminate [him]

by giving him command disciplines.” Id. at ¶ 100. At one point, a captain

threatened to fire him “for (nonexistent) psychological problems.” Id. at ¶ 103.

Deering was also denied a planned vacation day in December 2016 for pre-booked

travel against NYPD standard practice.

Deering alleges that the transfers, command disciplines, and docked and

denied vacation days were not imposed on female or non-Latino officers. He

provides several examples of officers of similar or lower rank at his precinct who

arrived later than he did but went unpunished. Deering claims he was told by one

superior that she “only cares when he is late,” not others. Id. at ¶ 157.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Courts may consider the complaint and

materials attached thereto in making this determination. Kalyanaram v. Am. Ass’n

of Univ. Professors at New York Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir.

2014). A claim is facially plausible when “the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft, 556 U.S. at 678. While “detailed factual

allegations,” are not necessary, “provid[ing] the grounds of . . . entitlement to relief

requires more than labels and conclusions.” Bell Atl. Corp., 550 U.S. at 555.

III. DISCUSSION

Defendants challenge each of the 20 counts in Deering’s Amended

Complaint for failure to state a claim. First, however, the Court addresses

Defendant’s arguments regarding timeliness and which Defendants can be properly

sued.

a. Proper Defendants

Deering’s claims are dismissed insofar as they are lodged against the NYPD,

which is “a non-suable agency of the City.” Jenkins v. City of New York, 478 F.3d

76, 93 n.19 (2d Cir. 2007). Deering’s ADA and Title VII claims against individual

NYPD personnel are also dismissed, as neither law provides for liability against

individuals. Patterson v. Cnty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (Title

VII); Fox v. State Univ. of N.Y., 497 F. Supp. 2d 446, 451 (E.D.N.Y. 2007) (ADA).

b. Timeliness

Defendants argue that Deering’s federal claims are time-barred to the extent

that they accrued more than 300 days before he filed his EEOC complaint on

February 17, 2021. Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir.

1999). Defendants also argue that his SHRL and CHRL claims, subject to a 3-year

statute of limitations, are time-barred to the extent that they address conduct before

June 2018. N.Y. C.P.L.R. 214(2); NYC Administrative Code 8-502(d).

Deering’s untimely allegations are saved by the continuing violation

doctrine, under which “if a plaintiff has experienced a continuous practice and

policy of discrimination, . . . the commencement of the statute of limitations period

may be delayed until the last discriminatory act in furtherance of it.” Washington v.

Cnty. of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (internal quotation omitted);

see also Murdaugh v. City of New York, No. 10 CIV. 7218 HB, 2011 WL 798844

(S.D.N.Y. Mar. 8, 2011) (standard for CHRL and SHRL claims similar to that for

ADA and Title VII). The doctrine applies only to related instances of

discrimination “permitted by the employer to continue unremedied for so long as

to amount to a discriminatory policy or practice.” Washington, 373 F.3d at 317.

Deering alleges over a dozen instances of repetitive discriminatory conduct

predating the limitations period, many of which are related to the timely conduct—

including frequent and undesirable transfers, insults from superiors related to his

sex, and harassment regarding his injuries. Although the complained of actions

were performed by several different supervisors, Deering alleges that they

communicated with one another to promote their intent to punish him, suggesting a

shared practice of discipline other officers were not subject to. Cf. Loth v. City of

New York, No. 20 CIV. 9345 (GBD), 2021 WL 4311569, at *4-5 (S.D.N.Y. Sept.

21, 2021) (no continuing violation where employee alleged lost pay for lateness,

command disciplines, and being denied leave because the “decision to file

disciplinary charges” is a “clearly a single act, discrete in its nature”).

c. Deering’s Disparate Treatment Claims on the Basis of Race and Sex

Counts one through six allege disparate treatment on the basis of race and

sex in violation of Title VII, SHRL, and CHRL. Under each, Deering must plead

that “(1) he is a member of a protected class; (2) he was qualified for the position

he held; (3) he suffered an adverse employment action; and (4) the adverse action

took place under circumstances giving rise to the inference of discrimination.”

Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010); see Ferrante v.

American Lung Ass’n, 90 N.Y.2d 623, 629 (1997) (SHRL); Melman v. Montefiore

Med. Ctr., 98 A.D.3d 107, 112-13 (1st Dep’t 2012) (CHRL). This burden is

“minimal.” McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001).

These requirements are applied more leniently under SHRL and CHRL. See

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.

2013) (“courts must analyze NYCHRL claims separately and independently from

any federal and state law claims” and “broadly in favor of discrimination plaintiffs

[if] reasonably possible.”); Wellner v. Montefiore Med. Ctr., No. 17 Civ. 3479

(KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019) (2019 amendments

move SHRL’s standard “closer to the standard under the NYCHRL”). Defendants

contest the latter two elements.

1. Adverse Employment Action

The complained of conduct must constitute a “materially adverse change in

the terms and conditions of employment,” Fairbrother v. Morrison, 412 F.3d 39,

56 (2d Cir. 2005), which is “more disruptive than a mere inconvenience or an

alteration of job responsibilities,” Galabya v. N.Y.C. Bd. Of Educ., 202 F.3d 636,

640 (2d. Cir. 2000), such as “termination, demotion via reduced wage, salary or

job title, a material loss of benefits, or significantly reduced responsibilities,”

Demerot v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006). Multiple lesser actions

may also be cognizable. Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002).

Second Circuit courts have made clear that several of the alleged actions

here are not cognizable unless accompanied by “negative consequences, such as

demotion, diminution of wages, or other tangible loss.” Moschetti v. New York City

Dep't of Educ., No. 15-CV-3161 (KMK), 2018 WL 4759787, at *14 (S.D.N.Y.

Sept. 28, 2018) (internal quotation omitted) (negative performance evaluations);

Everett v. New York City Dep't of Educ., No. 21 CIV. 7043 (JPC), 2022 WL

2342693, at *7 (S.D.N.Y. June 29, 2022) (lateral transfers lacking “a change in

responsibilities so significant as to constitute a setback to the plaintiff's career”);

Diaz v. Poly Prep Day Sch., No. 21-CV-06611 (BMC), 2022 WL 2803259, at *5

(E.D.N.Y. July 18, 2022) (reprimand, condescension, redundant tasks, and denial

of preferred assignments).

Deering sufficiently alleges adverse action because he details tangible

consequences stemming from his poor treatment, including lost and denied

vacation days, lost paid time, and command disciplines explicitly framed by

superiors as an attempt to fire him. Cf. Roman-Malone v. City of New York, No. 11

CIV. 8560 PAC, 2013 WL 3835117, at *6 (S.D.N.Y. July 25, 2013) (holding that

command discipline charges “without teeth” do not suffice; citing lost vacation

days, assignment to another position as potentially cognizable actions).

2. Inference of Discrimination

Circumstances giving rise to an inference of discrimination can include,

but [are] not limited to, an employer's (1) criticism of the plaintiff's

performance in ethnically degrading terms, (2) invidious comments

about others in the employee's protected group, (3) favorable treatment

of employees not in the protected group, and (4) replacing a terminated

or demoted employee with an individual outside the employee's

protected class.

LeeHim v. New York City Dep’t of Educ., No. 17 CIV. 3838 (PAE), 2017 WL

5634128, at *7 (S.D.N.Y. Nov. 21, 2017). There must be “some direct contextual

link to a protected characteristic.” Id. This requirement also applies to CHRL and

SHRL claims. Thomson v. Odyssey House, No. 14-CV-3857 MKB, 2015 WL

5561209 (E.D.N.Y. Sept. 21, 2015).

Deering alleges several comments which suggest discriminatory intent on

the basis of sex under Title VII, and therefore also under SHRL and CHRL. He

was referred to by a captain as “stud” in front of superiors, forced to arm-wrestle,

told by a female captain that “a woman would be able to do [his] job better,” and

called a “typical man.” Amend. Compl. ¶ 90. He was told a female superior hated

him because he was a “good looking man” and was told by a sergeant that he

should “take his shirt off and flex” for superiors. Id. at ¶ 137, 173.

Deering has also alleged circumstances suggesting racial discrimination.

Deering specifically identifies non-Latino officers at his precinct with equivalent

or lesser rank who arrived as late or later than Deering and did not receive

command disciplines, docked pay time, or lost or denied vacation time. He

includes the names of the officers, the date they were late, and how late they were.

This is sufficient to infer discriminatory intent. See Diaz, 2022 WL 2803259, at *8

(“[A] plaintiff attempting to show that the employer treated her less favorably than

a similarly situated employee outside her protected group must show she was

similarly situated in all material respects to the individuals with whom she seeks to

compare herself.”).

d. Deering’s Disparate Treatment Claims on the Basis of Disability

In counts seven through nine, Deering alleges disparate treatment on the

basis of disability under the ADA, CHRL, and SHRL.

Deering’s ADA claim must be dismissed because he fails to allege a

cognizable disability. Under the ADA, disabilities must “substantially limit one or

more major life activities.” Shields v NYC Health & Hosps. Corp., 489 F Supp 3d

155, 164 (E.D.N.Y. 2020). Relevant factors include “(1) the nature and severity of

the impairment, (2) its duration or expected duration, and (3) the existence of any

actual or expected permanent or long term impact.” Primmer v. CBS Studios, Inc.,

667 F. Supp. 2d 248, 258 (S.D.N.Y. 2009). Deering makes the conclusory

allegation that his shoulder and hip injuries, resulting from falling in an NYPD

bathroom, have limited his life activities. But he pleads no facts suggesting

limitations at work or elsewhere, aside from being placed on restricted duty and

given sick leave. See Lajeunesse v. Great Atl. & Pac. Tea, 160 F. Supp. 2d 324,

331-32 (D. Conn. 2001) (“temporary injuries without substantial limitations and

permanent effects” are not disabilities under the ADA) (cleaned up).

Deering’s CHRL and SHRL claims survive, however. His impairments

qualify as disabilities under the more lenient standards imposed by SHRL and

CHRL. See New York State Executive Law § 292 (21) (disabilities include any

“physical, mental or medical impairment . . . which prevents the exercise of a

normal bodily function or is demonstrable by medically accepted clinical or

laboratory diagnostic techniques.”). He alleges harassing home visits and calls,

excessive punishment, and inferior post placements related to superiors’ doubts

that his injuries were real. This is sufficient to link his injuries with the alleged

conduct.

e. Deering’s Hostile Work Environment Claims

In counts 10-16, Deering claims he was subjected to a hostile work

environment on the basis of his sex and race under Title VII, CHRL, and SHRL,

and on the basis of his disability under the ADA. Each of these claims survives.

Under Title VII and the ADA, a plaintiff must allege a workplace that, due

to his protected status, is “so severely permeated with discriminatory intimidation,

ridicule, and insult” so as to alter “the terms and conditions” of employment.

Agosto v. New York City Dep't of Educ., 982 F.3d 86, 101 (2d Cir. 2020) (cleaned

up). “[T]he misconduct shown must be severe or pervasive enough to create an

objectively hostile or abusive work environment, and the victim must also

subjectively perceive that environment to be abusive.” Id. at 101-02 (cleaned up).

Relevant factors can include the conduct’s frequency and severity, “whether it is

physically threatening or humiliating, . . . whether it unreasonably interferes with

an employee’s work performance,” and its “effect on the employee’s well-being.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

SHRL, which lacks the “severe and pervasive requirement” for claims

accruing after October 11, 2019, requires allegations of “inferior terms, conditions,

or privileges of employment because of [a plaintiff’s] membership in one or more

protected categories.” Tortorici v. Bus-Tev, LLC, No. 17CV7507PACKHP, 2021

WL 4177209, at *13 (S.D.N.Y. Sept. 14, 2021). CHRL claimants need only allege

that they were treated “less well, at least in part for a discriminatory reason.”

Moore v. Verizon, No. 13-CV-6467 (RJS), 2016 WL 825001, at *13 (S.D.N.Y.

Feb. 5, 2016).

Deering alleges more than “simple teasing, offhand comments, and isolated

incidents,” which are insufficient to establish a hostile work environment. Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (internal quotation omitted). He

alleges multiple offensive and antagonistic comments, several instances of being

denied or docked vacation time and paid time, and a multi-year offensive by

superiors to punish him for conduct that went unpunished when done by others—

clearly worse than “petty slights and trivial inconveniences.” Adams v. City of New

York, 837 F. Supp. 2d 108, 128 (E.D.N.Y. 2011) (internal quotation omitted).

Because his allegations are sufficient to plead a cause of action under Title VII, so

too are they adequate under CHRL and SHRL.

Deering’s hostile work environment claims based on his race and sex under

Title VII, CHRL, and SHRL survive. However, as described above, Deering fails

to plead that he was disabled under the ADA, so his ADA hostile work

environment claim must fail.

f. Deering’s Retaliation Claims

In counts 17-20 of the Amended Complaint, Deering alleges retaliation in

violation of Title VII, the ADA, SHRL, and CHRL. To state a claim under the

ADA, Title VII, and SHRL, a plaintiff must allege that he engaged in protected

activity of which his employer was aware, that the employer took adverse action

against him, and that the two were causally linked. Sarno v. Douglas Elliman-

Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999); Summa v. Hofstra Univ.,

708 F.3d 115, 125 (2d Cir. 2013)). CHRL requires the same elements, though with

a broader understanding of adverse action. Calise v. Casa Redimix Concrete Corp.,

No. 20 CIV. 7164 (PAE), 2022 WL 355665, at *5 (S.D.N.Y. Feb. 4, 2022).

Defendants contest causation. A causal link requires “(1) direct proof of

retaliatory animus directed against the plaintiff; (2) disparate treatment of similarly

situated employees; or (3) that the retaliatory action occurred close in time to the

protected activities.” McNair v. NYC Health & Hosp. Co., 160 F. Supp. 2d 601,

604 (S.D.N.Y. 2001). Deering seeks to take advantage of the third option, alleging

that his poor treatment—including excessive discipline, frequent transfers, hostile

remarks, and scrutiny over his injuries—continued after he filed his EEOC

complaint, a protected activity. However, “[w]here timing is the only basis for a

claim of retaliation, and gradual adverse job actions began well before the plaintiff

had ever engaged in any protected activity, an inference of retaliation does not

arise.” Hunter v. St. Francis Hosp., 281 F. Supp. 2d 534, 547 (E.D.N.Y. 2003).

Here, Deering’s alleged mistreatment began well before he filed his EEOC

complaint, and he only alleges that the same mistreatment continued afterward.

This cannot give rise to an inference of retaliation, and Deering’s retaliation claims

are therefore dismissed.

IV. CONCLUSION

Defendants’ motion to dismiss is granted in part and denied in part.

Deering’s disparate treatment and hostile work environment claims under the ADA

and his retaliation claims under Title VII, the ADA, SHRL, and CHRL (counts 7,

16, 17, 18, 19, and 20) are dismissed with respect to all Defendants. Each of

Deering’s remaining claims (counts 1-6 and 8-15) are dismissed with respect to the

NYPD. Deering’s remaining Title VII claims (counts 1 and 10) are dismissed as to

Defendants Assing, Borisenko, Clamp, Johnson, Kinsella, Lai, Suarez, and Rogers.

SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

June 14, 2023