McGrath v. Fire Department of the City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MICHAEL MCGRATH, MEMORANDUM & ORDER

Plaintiff, 17-CV-1461 (NGG) (JRC)

-against-

MARILYN ARROYO, STEVEN RUSSO, JAMES

LEONARD, DANIEL NIGRO, MAYOR BILL

DEBLASIO, THE FIRE DEPARTMENT OF THE

CITY OF NEW YORK, and THE CITY OF NEW

YORK,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Michael McGrath (“Plaintiff”) seeks reconsideration of

this court’s January 3, 2024 ECF Order (“ECF Order”) denying

Plaintiffs motion to file a second amended complaint. (Not. of

Mot. for Recon. (Dkt. 113); Mem. in Supp. of Mot. for Recon.

(“Mot. for Recon.”) (Dkt. 114).) Plaintiff contends that this court

erred in denying his motion to amend on futility grounds without

discussion of his disability claims.

Plaintiff seeks reconsideration of this court’s ECF Order denying

Plaintiff leave to file a second amended complaint. (See generally

Mot. for Recon.) On August 8, 2019, this court issued a Memo-

randum & Order (“M&O”) dismissing certain of Plaintiffs claims

against the Defendants pursuant to Federal Rule of Civil Proce-

dure 12(b)(6). (M&O (Dkt. 47).)! Following discovery, Plaintiff

sought leave to file a motion to amend his complaint to add fac-

tual allegations “based on recently obtained deposition

} The court assumes familiarity with the factual and procedural back-

ground of this case, which is set forth in greater detail in the M&O. See

MeGrath v. Arroyo, No, 17-CV-1461 (NGG), 2019 WL 3754459, at *1

(E.D.NLY. Aug, 8, 2019),

testimony” in order to reinstate the following: (1) Commissioner

Daniel Nigro who was previously a defendant in the suit; (2)

Plaintiffs cause of action against all Defendants pursuant to the

anti-discrimination provisions of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12101, et seq.; and (3) several employ-

ment discrimination claims that were also previously dismissed

against Commissioner Nigro and all other Defendants.” (Pl’s Re-

quest for Mot. to Amend (Dkt. 95) at 1.) This court granted leave

to file the motion on September 15, 2023 (see Min. Entry dated

9/15/2023), and upon review of the parties’ arguments, denied

the motion to file a second amended complaint as futile on Jan-

uary 3, 2024. (See ECF Order.)

The standard for a motion for reconsideration is “strict.” Schrader

v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995). Such mo-

tions are generally denied unless the moving party can establish:

“(1) that the court overlooked controlling decisions or data; (2)

that there has been a change in decisions or data; (3) that new

evidence has become available; or (4) that reconsideration is nec-

essary to correct a clear error or prevent manifest injustice.”

Kelwin Inkwel, LLC v. PNC Merch. Servs. Co., L.P., No. 17-CV-6255

(NGG), 2019 WL 6134164, at *1 (E.D.N.Y. Nov, 19, 2019). “Un-

der Local Rule 6.3, which governs motions for reconsideration,

the moving party must demonstrate controlling law or factual

matters put before the court on the underlying motion that the

movant believes the court overlooked and that might reasonably

be expected to alter the court’s decision.” Parrish v. Sollecito, 253

F, Supp. 2d 713, 715 (S.D.N.Y. 2003); see United States v. One

Etched Ivory Tusk of Afr. Elephant, No. 10-CV-308 (NGG), 2012

2 Specifically, Plaintiff seeks to reinstate his (1) Title VII employment dis-

crimination claim: (2) Title VH hostile work environment; (3) Title VO

constructive discharge claim; (4) discrimination claim under the New York

Human Rights Law (“NYHRL”); and (5) discrimination claim under the

New York City Human Rights Law (“NYCHRL”). (Pl’s Request for Mot. to

Amend at 1.)

WL 4076160, at *1 (E.D.N.Y. Aug. 27, 2012). Courts narrowly

construe and strictly apply these principles to avoid “repetitive

arguments on issues that have already been considered fully by

the court.” Suffolk Fed. Credit Union v. Cumis Ins. Soc., Inc., 958

F. Supp. 2d 399, 402 (E.D.N.Y. 2013).

Plaintiff argues that reconsideration of this court’s ECF Order is

warranted because this court erred in holding that Plaintiffs

amendments would be futile without discussing in detail its rea-

soning ot making mention of his disability claims. (Mot. for

Recon. at 1.) Specifically, Plaintiff argues that he will suffer man-

ifest injustice by not being able to prosecute well-pleaded claims

in light of the new testimony from Commissioner Nigro and oth-

ers stating that white men are not protected by the FDNY and

that individuals with disabilities seeking pensions are discrimi-

nated against because of their disabilities. Ud. at 2-4.) The court

will first review the proposed amendments, and then address

Plaintiffs arguments as they related to his employment discrimi-

nation claims and disability discrimination claim.

Plaintiffs proposed Second Amended Complaint adds six new

paragraphs of factual allegations that are of relevance here, (See

Proposed SAC (Dkt. 107-5) {] 203-08.) All of these allegations

were admissions by FDNY employees made during depositions in

this matter. Ud.) Specifically, Commissioner Nigro testified that

the FDNY EEO office did not investigate Plaintiffs complaint be-

cause Plaintiff, as a white male, did not “fall under any protected

category class that they would investigate.” Ud, { 204.) In re-

sponse to being asked what his understanding of a protected

status was, FDNY Deputy Chief James DiDomenico testified that

gender, race, and disability would all be considered protected for

EEO purposes, but that white people are not protected. Gd. 4

206.) Regarding disability pensions, FDNY Associate Disciplinary

Gounsel, Joseph Pallazzolo, testified that when he first started

wotking with the Fire Department, his supervisors informed him

that if a pension hold is placed while an investigation is occur-

ring, “I don’t know what the basis is for it, I just know that that’s

what’s done.” (Id. { 207.) Similarly, FDNY Assistant Commis-

sioner of the Bureau of Investigations and Trials, Robert Wallace,

testified that while not a regulation, in practice, if a firefighter or

EMT sought to retire through the “normal retirement process,”

FDNY would have 30 days to “effectuate any charges or disci-

pline.” Gd. § 208.) However, FDNY could “place a hold on

disability applications, and did as a standard operating proce-

dure.” Cd.)

With a summary of the new allegations in mind, the court now

turns to the viability of Plaintiffs employment discrimination

claims. As discussed in the M&O, the court found that Plaintiffs

transfer to the Queens Borough Command constituted an ad-

verse employment action for purposes of his Title VII

discrimination claim. (M&O at 11-12.)? However, the court held

that because Plaintiff raised no allegations indicating that this

transfer was motivated by his race or gender, Plaintiffs Title VII

employment discrimination claim must be dismissed. Ud. at 14-

15.)

Plaintiffs new allegations do not change this court’s reasoned

analysis with respect to his Title VII employment discrimination

claim. Notably, this court held that the fact that FDNY may have

deviated from its regular procedures when investigating Plaintiff

as compared to Arroyo, Plaintiff did not allege facts demonstrat-

ing how FDNY’s deviations were related to his transfer. (M&O at

14.) While the proposed allegations do concern FDNY’s “policy”

3 This court also held that the investigation of Defendant Arroyo’s sexual

harassment claim and Plaintiff not being awarded his recommended medal

were not adverse actions for purposes of Title VII. (id. at 12-13.) As the

proposed amendments do not add facts surrounding Arroyo’s investigation

or Plaintiffs medal, the court does not discuss its prior findings.

or lack thereof, Plaintiff does not even attempt to resolve the dis-

connect this court previously called out, namely, how the FDNY’s

policies or procedures relate to Plaintiffs transfer.

To the extent Plaintiff now alleges that the Defendants’ failure to

investigate his complaint constitutes an adverse action, Defend-

ants are correct that an employer’s failure to investigate an

employee’s claim does not automatically create an adverse em-

ployment action for purposes of stating a prima facie case of

employment discrimination. (Defs’ Opp. to Mot. to Amend (Dkt.

109) at 11 (citing Hong Yin v. N. Shore LU Health Sys., 20 F. Supp.

3d 359, 374 (E.D.N.Y. 2014))); see Petyan v. New York City L.

Dept, No. 14-CV-1434 (GBD), 2015 WL 1855961, at *11

(S.D.N.Y. Apr. 23, 2015), report and recommendation adopted,

No. 14-CV-1434 (GB), 2015 WL 4104841 (S.D.N.Y. July 2, 2015)

(“Even assuming that the investigation was insufficient, such

conduct cannot be characterized as an adverse employment ac-

tion.”); Hayes v. Kerik, 414 F. Supp. 2d 193, 203 (E.D.N.Y. 2006)

(dismissing claim based on failure to investigate); cf. Fincher v.

Depository Trust and Clearing Corp., 604 F.3d 712, 721 (2d

Cir.2010) (holding in retaliation context that “[a]n employee

whose complaint is not investigated cannot be said to have

thereby suffered a punishment for bringing that same com-

plaint”).

And even if Defendants’ failure to investigate were considered an

adverse action, Defendants have put forth additional evidence

exchanged in discovery purporting to show that Defendants had

a legitimate, non-discriminatory purpose for not investigating; it

was their policy not to investigate EEO complaints where, as

here, the complainant chose to file a similar complaint with an

agency outside of the FDNY. (Defs’ Opp. to Mot. to Amend at 14-

15).4 Because Plaintiff does not attempt to address this point or

otherwise assert that the policy is pretextual, the court’s holding

remains the same—his employment discrimination claims fail.

This court also dismissed Plaintiffs disability discrimination

claim because Plaintiff failed to allege facts supporting “even a

minimal inference of discrimination motivated by Plaintiffs disa-

bility.” (M&O at 27.) This court noted that Plaintiff argued his

disability pension was denied because of the “contrived charge

and ongoing extreme prejudice and biased investigation against

him,” not because of any disability that Plaintiff suffered. Ud. at

26.) Again, the new allegations do not alter this holding. “[T]he

sine qua non of an ADA claim is that the plaintiff was treated dif-

ferently ‘because of his impairment.” Dedyo v. Baker Eng’g New

York, Inc., No. 96-CV-7152 (LBS), 1998 WL 9376, at *11

(S.D.N.Y. Jan. 13, 1998); see also Shannon v. New York City

Transit Auth., 332 F.3d 95, 99 (2d Cir, 2003) (setting out the

factors required to establish a prima facie discrimination claim

under the ADA). Nowhere in the SAC does Plaintiff allege that

4Tn employment discrimination cases, courts use the three-step burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Following a plaintiffs prima facie showing of discrimination,

the burden then shifts to the employer to demonstrate a legitimate, non-

discriminatory purpose for the adverse employment action, and if satisfied,

the burden shifts back to the employee to demonstrate, by a preponder-

ance of the evidence, that the non-discriminatory reason was actually a

pretext for discrimination. See Kirkland-Hudson v. Mount Vernon City Sch.

Dist., 665 F. Supp. 3d 412, 431 (S.D.NLY. 2023).

5 ‘The proposed allegations similarly do not change this court’s analysis

with respect to Plaintiffs hostile work environment, constructive dis-

charge, NYHRL, or NYCHRL discrimination claims, Notably, this court

dismissed the hostile work environment claim (and related constructive

discharge claim) based on facts that had nothing to do with FDNY’s pur-

ported procedures at all, but rather whether the harassment suffered by

Plaintiff amounted to a pervasive hostile work environment. Because Plain-

tiff does not include additional facts on this point, those discrimination

claims cannot be reinstated.

FDNY or the Pension Medical Board withheld his disability pen-

sion because of his disability, rather he alleges they did so in

retaliation for lodging a complaint and undergoing an investiga-

tion. (See Proposed SAC 94 176-183, 207-08.) These assertions

are more properly suited for his operative retaliation claim; they

cannot, however, sustain a claim under the ADA. See Dedyo, 1998

WL 9376, at *12 (“[A] simple denial of entitlement under a dis-

ability plan does not state a claim under the ADA. Congress did

not intend to federalize all claims of improper withholding of dis-

ability benefits, and we decline to adopt a rule that would compel

that result.”). Moreover, Plaintiffs assertion that Defendants

were hostile toward Plaintiffs disability is alleged without any

supporting facts showing the same. (See Proposed SAC { 265.)

As Plaintiff has failed to point to “any controlling law or facts

which would justify reconsideration” his disability discrimination

claim remains dismissed. Akkad v. City of New York, No. 20-CV-

4152 (AKH), 2021 WL 6621453, at *2 (S.D.N.Y. Mar. 22, 2021).

Because the proposed amendments do not provide any further

support for the dismissed employment discrimination claims or

Plaintiffs claim of discrimination based on disability, the court

need not disturb its prior ruling dismissing Commissioner Nigro.

Thus, the SAC does not contain sufficient factual allegations to

reinstate Plaintiff's claims. As Plaintiffs amendments would be

futile, his motion for reconsideration is therefore DENIED.

SO ORDERED.

Dated: Brooklyn, New York

February & 2024

olas 6. Garavis

ICHOLAS G,. GARAUFIS

United States District Judge