White v. City of Long Beach

UNITED STATES DISTRICT COURT 1:21 pm, Feb  20, 2024

EASTERN DISTRICT OF NEW YORK

U.S. DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

NATALIE WHITE,

Plaintiff, MEMORANDUM OF

DECISION & ORDER

CV 22-5628 (GRB)(ARL)

-against-

CITY OF LONG BEACH, COMPTROLLER INNA

RESNICK (in her official and personal capacity),

CITY MANAGER DONNA GRAYDEN (in her

official and personal capacity),

Defendants.

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GARY R. BROWN, United States District Judge:

In this employment discrimination and retaliation action, defendants City of Long Beach,

Comptroller Inna Resnick, and City Manager Donna Grayden move to dismiss the second

amended complaint. For the reasons discussed below, that motion is GRANTED.

Background

Factual Allegations

The following allegations are taken from plaintiff’s second amended complaint, Docket

Entry (“DE”) 15 (“SAC”), and are presumed to be true for the purpose of the present motion. See

Agostisi v. Bendo, No. CV-21-7182 (GRB)(LGD), 2023 WL 5334396, at *1 (E.D.N.Y. Aug. 18,

2023). Plaintiff is an African American woman formerly employed as an Administrative Clerk

with defendant City of Long Beach. SAC ¶ 16. While employed, plaintiff sought a promotion to

Purchasing Clerk and took the civil service exam for the position. Id. ¶ 18. Though plaintiff

passed the exam, scoring in the top three of candidates,1 she was informed that her score was

1 Plaintiff alleges that according to state and local rules, selection for the position must be made from among the three

highest scorers of the exam who are willing to accept. SAC ¶ 18.

disqualified because she failed to meet the minimum requirements to sit for the exam. Id. ¶¶ 19-

23. Despite maintaining her eligibility to take the exam, she was denied the position of Purchasing

Clerk. Id. ¶ 23. Instead, Antonella Capalbi, a Caucasian woman, was given the promotion to

Purchasing Clerk, though allegedly being less experienced and less qualified than plaintiff. Id. ¶

24.

Two years later, in response to the COVID-19 pandemic, then-Governor Andrew Cuomo

issued Executive Order 202-202.8 that directed all non-essential businesses to close and all non-

essential workers to remain at home. Id. ¶ 27. As such, plaintiff’s workplace, City Hall, was

closed except for certain employees who were determined to be “essential staff.” Id. Whether an

employee was deemed essential came at the “sole discretion of Defendant [Comptroller Inna]

Resnick.” Id. ¶ 32. Plaintiff, who defendants allegedly knew suffered from “severe asthma,” was

deemed essential and required to work in person. Id. ¶¶ 27-30. Some of her Caucasian colleagues,

however, were permitted to work from home. Id.

Plaintiff expressed her concerns of working in person to defendants Resnick and Grayden.

Id. ¶ 32. But the defendants took no action. Id. ¶ 33. Instead, defendant Resnick promised that in

accordance with the Executive Order, plaintiff would be issued personal protective equipment

(PPE) such as gloves and masks to aide in protection against exposure to COVID-19. Id. ¶ 35.

But less than one hour before plaintiff began her shift, defendant Resnick informed plaintiff that

no PPE was to be provided. Id. Plaintiff repeated her contention to defendants that she could

successfully complete her work from home. Id. ¶ 36. Nevertheless, plaintiff was directed to report

to work in person. Id. And due to defendants’ failure to provide her with necessary PPE, plaintiff

had to purchase her own masks, gloves, and materials to protect herself from exposure to COVID-

19. Id. ¶ 37.

Soon after, plaintiff filed complaints regarding the treatment she received. Id. ¶ 38. In

response to those complaints, defendant City of Long Beach sent plaintiff a notice of termination

letter on April 20, 2020, informing her that she was going to be terminated on May 21, 2020.2 Id.

At the time, plaintiff was only one of three African American employees at City Hall and the only

African American in an Executive position. Id. Furthermore, while other Caucasian employees

were similarly terminated, each was restored to their respective positions. Id. ¶ 47. Plaintiff,

however, was not. Id. Though plaintiff’s former position as Administrative Clerk was not in the

City’s 2021 budget, plaintiff complains that the woman who filled the position in the interim had

less seniority than plaintiff.3 Id. ¶ 57. Plaintiff was not rehired by the City. Id. ¶ 47

Procedural History

Plaintiff commenced this action against defendants on September 20, 2022, alleging: (1)

discrimination and retaliation under Title VII; (2) discrimination and retaliation under Title VI; (3)

violation of the Equal Protection Clause of the Fourteenth Amendment; (4) municipal liability

under 42 U.S.C § 1983; (5) violation of the Americans with Disabilities Act; and (6) violation of

New York State Executive Law § 296. See generally DE 1. Plaintiff then amended her complaint

twice. See DE 12 (first amended complaint); DE 15 (second amended complaint). As a result,

only plaintiff’s Title VII, Title VI, Equal Protection, and municipal liability claims remained. See

generally DE 15. On August 8, 2023, this Court held a pre-motion conference to hear defendants’

anticipated motion to dismiss at which the Court dismissed plaintiff’s Title VII claims and directed

the parties to fully brief the motion as to the remaining claims.4 See DE 18.

2 Plaintiff alleges that she was entitled to “bumping rights,” which is a union practice where employee terminations

are based on seniority, and that based on her experience and test scores, she should not have been terminated. SAC

¶¶ 40-42.

3 Plaintiff does not make any allegations as to this individual’s race, color, or ethnicity.

4 Plaintiff has agreed to voluntarily withdraw the claims against the individual defendants in their official capacities.

DE 23-5 at 6.

This opinion follows.

Discussion

Standard of Review

Motions to dismiss are decided under the well-established standard of review for such

matters, as discussed in Burris v. Nassau County District Attorney, No. 14-5540 (JFB)(GRB), 2017

WL 9485714, at *3-4 (E.D.N.Y. Jan. 12, 2017), adopted by 2017 WL 1187709 (E.D.N.Y. Mar.

29, 2017), and incorporated by reference herein. The gravamen of that standard, of course, is the

question of whether, assuming the allegations of the complaint to be true solely for the purposes

of the motion, the complaint sets forth factual material to render the claims plausible. See id.

Title VI Claims

Defendants argue that the Title VI claims should be dismissed principally because the City

is ineligible to receive funds under the Paycheck Protection Program (PPP) and thus, has not

received federal funds where a primary objective is to provide employment. To sufficiently plead

a Title VI claim, a plaintiff must allege (1) participation in a protected activity known to the

defendants, (2) adverse action by the defendants against the plaintiff, and (3) a causal connection

between the plaintiff’s protected activity and defendants’ adverse action. Bloomberg v. New York

City Dep't of Educ., No. 17-CV-3136 (PGG), 2023 WL 1927825, at *4 (S.D.N.Y. Feb. 10, 2023)

(citations omitted). Additionally, in the employment discrimination context, courts have construed

Title VI claims to “require[] a logical nexus between the use of federal funds and the practice

toward which [the] action is directed.” Johnson v. Cty. of Nassau, 411 F. Supp. 2d 171, 175

(E.D.N.Y. 2006) (quoting Ass'n Against Discrimination in Employment, Inc. v. City of Bridgeport,

647 F.2d 256, 276 (2d Cir. 1981)). Thus, there is a threshold requirement that the employer be the

recipient of funds aimed primarily at providing employment. Dobroff v. Hempstead Union Free

Sch. Dist., No. 21-CV-1567 (JMA)(ST), 2022 WL 4641128, at *5 (E.D.N.Y. Sept. 30, 2022)

(citing 42 U.S.C. § 2000d-3).

Here, plaintiff cites to several sources of federal funding that the City receives but only one

is of critical importance: an alleged $3.67 million PPP loan under the CARES Act—which

indisputably has the primary objective of providing employment. See SAC ¶ 94. While seemingly

sufficient on its face, a closer review of the relevant statutes suggests otherwise.5

In March 2020, Congress enacted the CARES Act in response to the COVID-19 pandemic

to, inter alia, “alleviate the pandemic’s substantial economic effects on small businesses.”

Springfield Hosp., Inc. v. Guzman, 28 F.4th 403, 409 (2d Cir. 2022) (citing Coronavirus Aid,

Relief, and Economic Security Act, Pub L. No. 116-136, 134 Stat. 281, 286 (2020)) (discussing

statutory and regulatory background of the CARES Act and PPP program). “Section 1102 of the

Act establishes the PPP, a temporary program targeted at providing small businesses with the funds

necessary to meet their payroll and operating expenses.” Id. (citing CARES Act § 1102, 134 Stat.

at 286 (codified as amended at 15 U.S.C. § 636(a)(36))) (emphasis added). The statute explicitly

provides for who may qualify for funding under the PPP. See 15 U.S.C. § 636(a)(36)(D). Among

those eligible are small businesses, independent contractors, news organizations, nonprofits, and

others. See id.

As relevant here, however, defendant City of Long Beach—as a municipality—appears to

fall outside the category of eligible recipients of PPP funding. Id. Indeed, this is the position taken

by defendants, who call the allegation a “legal impossibility.” See, e.g., DE 23-6 at 5. In response,

5 The Court may take judicial notice of such matters at the motion to dismiss stage. Williams v. New York City Hous.

Auth., 816 F. App'x 532, 534 (2d Cir. 2020) (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.

1998) (“It is well established that a district court may rely on matters of public record in deciding a motion to dismiss

under Rule 12(b)(6), including case law and statutes.”)).

plaintiff ultimately fails to address this statutory impediment.6 Rather, plaintiff relies on a

California district court case interpreting Title IX claims for the proposition that a defendant who

receives PPP funding may face a Title IV claim. DE 23-5 at 15 (citing E.H. by & through Herrera

v. Valley Christian Acad., 616 F. Supp. 3d 1040 (C.D. Cal. 2022)). But plaintiff misses the mark.

In E.H., the defendant, a private school, not only conceded that it had received a PPP loan but was

apparently eligible for such funding under the statute. Compare 15 U.S.C. § 636(a)(36)(D)

(providing eligibility for certain tax-exempt organizations), with E.H., 616 F.Supp.3d at 1049–50

(describing defendant’s “tax-exempt status”). Whereas here, defendant City not only disputes

receiving PPP funding but appears statutorily barred from even receiving it. While there can be

no question that defendant City recieves federal aid, whether such aid has been sufficiently linked

to providing employment has yet to be shown. Accordingly, plaintiff’s Title VI claim is

DISMISSED without prejudice.

Equal Protection Claim

Defendants seek dismissal of plaintiff’s Equal Protection claim on the basis that she failed

to sufficiently allege she was treated differently than similarly situated employees. “The

Fourteenth Amendment, as made actionable by 42 U.S.C. § 1983, provides public employees with

the right to be free from discrimination.” Buon v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (citing

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (internal quotation marks

omitted)). “At the pleadings stage of an employment discrimination case, a plaintiff has a ‘minimal

burden’ of alleging facts ‘suggesting an inference of discriminatory motivation.’” Vega, 801 F.3d

at 85 (quoting Littlejohn v. City of New York, 795 F.3d 297, 308 (2d Cir. 2015)). But the facts

alleged must provide “at least minimal support for the proposition that the employer was motivated

6 Nor does plaintiff does not allege that defendant City acted as an “intermediary” under the statute.

by discriminatory intent.” Id. (quoting Littlejohn, 895 F.3d at 311).

“A showing of disparate treatment—that is, a showing that an employer treated plaintiff

‘less favorably than a similarly situated employee outside his protected group’—is a recognized

method of raising an inference of discrimination for the purposes of making out a prima facie

case.”7 Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010) (citation omitted). “[A]

plaintiff can raise an inference of discrimination by demonstrating the disparate treatment of at

least one similarly situated employee outside [her] protected group and sufficient facts from which

it may reasonably be inferred that ‘the plaintiff’s and comparator’s circumstances . . . bear a

reasonably close resemblance.’” Sutter v. Dibello, No. 18-CV-817 (SJF)(AKT), 2021 WL 930459,

at *21 (E.D.N.Y. Mar. 10, 2021) (quoting Hu v. City of N.Y., 927 F.3d 81, 96-97 (2d Cir. 2019)).

“A plaintiff relying on disparate treatment evidence must show she was similarly situated in all

material respects to the individuals with whom she seeks to compare herself.” Johnson v. Andy

Frain Servs., Inc., 638 F. App'x 68, 70 (2d Cir. 2016) (citation omitted) (affirming dismissal under

12(b)(6) where plaintiff failed to “allege that she and her co-worker had similar job descriptions

or responsibilities”).

Here, plaintiff has failed to sufficiently raise an inference of discrimination by

demonstrating the disparate treatment. In various instances, the SAC refers to purported

comparators such as Tommy Larson, Erin D’Antonio, Danielle Ford, Patrick Larson, Rita Butler,

Robert Rykowski, Allen Horowitz, Mindy Abrams, and Julie Halfon.8 See generally SAC. While

plaintiff provides the titles of some of these individuals, the SAC is silent as to their duties,

7 Though plaintiff need not satisfy the higher burden of establishing a prima facie case at the motion to dismiss stage.

See Vega, 801 F.3d at 84 n.7 (“To be clear, we do not hold that a plaintiff in a Title VII case may not rely on the

McDonnell Douglas formulation in pleading a claim of discrimination; we simply hold that a plaintiff is not required

to do so.”).

8 References to James (Jake) Jacobi, Antonella Capalbi, and Cecelia Wims may also be considered purported

comparators. SAC ¶¶ 53-57. But for the same reasons, are insufficiently plead as such.

responsibilities, workplace conditions, qualifications, or quality of their work. Cf. Wooding v.

Winthrop Univ. Hosp., No. 16-CV-4477 (ADS)(ARL), 2017 WL 2559942, at *10 (E.D.N.Y. June

12, 2017) (“The complaint does not state what positions [the alleged comparators] held; what their

responsibilities were; their qualifications; or the quality of their work . . . The Plaintiff held the

title of chief physician's assistant for most of his tenure; it is not alleged that either [comparator]

held the same title or that they had similar responsibilities. These facts are insufficient.” (citation

omitted) (emphasis added). And to the extent that plaintiff does supply some information

concerning these purported comparators, such as their titles, those allegations provide little

support.9 Accordingly, plaintiff has failed to meet its burden in establishing disparate treatment

and her Equal Protection claim is DISMISSED without prejudice.10

Conclusion

Based on the foregoing, defendants’ motion to dismiss is GRANTED. Plaintiff’s request

for leave to file an amended complaint is similarly GRANTED and shall be filed within 21 days

consistent with the decision herein.

SO ORDERED.

Dated: February 20, 2024

Central Islip, New York

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge

9 Merely by way of example, it is questionable, at least as alleged, that a deputy comptroller, office aide, and animal

control officer are similarly situated in all material respects concerning employment with plaintiff as an Administrative

Clerk. See SAC ¶¶ 28, 44, 53.

10 “It is well-settled that a Monell claim cannot succeed without an underlying constitutional violation, and here there

is no constitutional violation.” Mastromonaco v. Cty. of Westchester, 779 F. App'x 49, 51 (2d Cir. 2019) (citing City

of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Accordingly, plaintiff’s Monell claim is DISMISSED without

prejudice.