Hamlett v. City of Binghamton

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

CHRISTOPHER J. HAMLETT,

3:20-cv-880

Plaintiff, (GLS/ML)

v.

CITY OF BINGHAMTON et al.,

Defendants.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFF:

Office of Ronald R. Benjamin RONALD R. BENJAMIN, ESQ.

P.O. Box 607

126 Riverside Drive

Binghamton, NY 13902

FOR THE DEFENDANTS:

HON. KENNETH FRANK SHARON ANNE SORKIN

City of Binghamton BRIAN M. SEACHRIST

Corporation Counsel Assistants Corporation Counsel

38 Hawley Street

Binghamton, NY 13901

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Christopher Hamlett commenced this action against

defendants Richard David, Mayor of the City of Binghamton, Joseph

Zikuski, Chief of Police for the City of Binghamton, John Ryan, Assistant

Chief of Police for the City of Binghamton, (collectively, hereinafter

“individual defendants”), and the City of Binghamton, pursuant to Title VII of

the Civil Rights Act of 19641 and 42 U.S.C. § 1981. (Compl., Dkt. No. 1.)

Pending before the court is defendants’ motion to dismiss. (Dkt. No. 9.)

For the reasons that follow, the motion is granted in part and denied in part

as described below.

II. Background2

Hamlett has served as a police officer for the City of Binghamton

Police Department (BPD) since 2004. (Compl. ¶ 8.) He has served in a

number of different roles at BPD, including as a member of BPD’s SWAT

team, a field training officer (FTO), and a “Pre-Academy instructor.” (Id. ¶¶

11-12, 45.) The FTO position, in particular, is “prestigious,” requiring

leadership skills, knowledge in all of BPD’s rules and regulations, and

various increased responsibilities. (Id. ¶¶ 13-15.)

In October 2016, Hamlett applied for selection to the detective

division for assignment in 2017. (Id. ¶¶ 16-17.) BPD has not adopted any

1 See 42 U.S.C. §§ 2000e-2000e-17.

2 The facts are drawn from Hamlett’s complaint, (Dkt. No. 1), and presented in the light

most favorable to him.

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regulations that set forth criteria for such applications. (Id. ¶ 19.) Hamlett’s

application was not successful; instead, three police officers, who,

presumably but not alleged, were white, and who were less experienced

and less qualified than him were selected. (Id. ¶¶ 20-21.) One such police

officer was selected over him purportedly due to that officer’s “phone

hacking skills.” (Id. ¶ 24.) Hamlett asserts that this justification is “clearly

pretextual,” and, in actuality, “racial animus tainted the decision-making

process.” (Id. ¶¶ 23, 25.) He maintains that he was denied selection

“because of his race.” (Id. ¶ 23.)

After seeking advice from Zikuski as to how to increase his chances

of being assigned to the detective division and being told by Zikuski that he

would be a “good” detective, Hamlett, in 2017, re-applied for selection to

the division for assignment in 2018. (Id. ¶¶ 27-28.) But he was, again,

passed over for a presumably white police officer who was less

experienced and less qualified than him. (Id. ¶ 30.)

In January 2018, Ryan was placed in charge of the detective division.

(Id. ¶ 29.) Hamlett alleges that Ryan has a reputation for being “racist” and

“biased against African Americans.” (Id. ¶¶ 34-35.) He alleges that BPD

Lieutenant, Alan Quinones, told Zikuski in 2015 that Ryan was a racist. (Id.

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¶ 34.) Moreover, Hamlett asserts that Zikuski informed Quinones, that “the

reason [Hamlett] was not given the position was because . . . Ryan would

not agree to have an African American work in the detective division so

long as he was in charge.” (Id. ¶¶ 31-33.) Hamlett also applied for the

2019 opening in the detective division, and seemingly, although not

alleged, was passed over again. (Id. ¶ 36.)

On August 20, 2019, Hamlett filed a complaint with the New York

State Division of Human Rights (NYSDHR) and the Equal Employment

Opportunity Commission (EEOC), and was issued a right-to-sue letter by

the EEOC. (Id. ¶ 22.) A few months later, copies of the City’s answer to

this complaint were posted in BPD’s locker room and gym, and were

placed within documents that supervisors reviewed on a daily basis. (Id.

¶ 57.) Hamlett has also been “shunned and ostracized by both officers and

supervisors” at BPD, and individual defendants have failed to take any

steps to intervene or ameliorate this situation. (Id. ¶¶ 59-62.)

He commenced the instant action in August 2020, asserting the

following three claims: (1) a Title VII employment discrimination claim, (2) a

Title VII retaliation claim, and (3) a discrimination claim pursuant to 42

U.S.C. § 1981. (See generally Compl.) Hamlett seeks monetary damages,

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injunctive relief, attorney’s fees, and a recoupment of expenses he incurred

by litigating this matter before the NYSDHR. (Id. ¶ 40.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled

and will not be repeated here. For a full discussion of the governing

standard, the court refers the parties to its prior decision in Ellis v. Cohen &

Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

IV. Discussion

A. Title VII Claims

Hamlett brings a Title VII employment discrimination claim and a Title

VII retaliation claim, apparently against all defendants. (See generally

Compl.) Defendants argue that Title VII claims cannot be made against

individuals, and, thus, to the extent Hamlett brings these claims against

individual defendants, they should be dismissed. (Dkt. No. 9, Attach. 5 at

17.) Hamlett concedes in his opposition to defendants’ motion to dismiss

that his retaliation claim is brought only against the City, (Dkt. No. 11 at

12), but he is silent as to his employment discrimination claim, (see

generally id.).

It is axiomatic that “Title VII does not impose liability on individuals.”

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Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) (citations

omitted); see Golden v. Syracuse Reg’l Airport Auth., No. 5:20-CV-1566,

2021 WL 485731, at *1 (N.D.N.Y. Feb. 10, 2021) (“[I]ndividuals are not

subject to liability under Title VII” (internal quotation marks and citation

omitted)). Accordingly, defendants’ motion to dismiss Hamlett’s Title VII

claims as against individual defendants is granted.

Additionally, in his opposition to defendants’ motion to dismiss,

Hamlett concedes that, to the extent that his Title VII claims are based on

his unsuccessful applications for assignment to the detective division in

2017 and 2018, they are time-barred. (Dkt. No. 11 at 8.) Accordingly, his

Title VII claims relate only to his 2018 application for assignment in the

detective division in 2019, and the rest of the allegations consist of

“background evidence.” (Id.)

1. Employment Discrimination

Hamlett brings a Title VII employment discrimination claim against

the City, asserting that the actions described above “constitute a

continuous pattern of racist behavior that has caused [him] injury including

but not limited to failing to be appointed to the detective division.” (Compl.

¶ 38.) According to Hamlett, assignment as a BPD detective is “highly

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desired” and affords police officers the opportunity to earn more money,

and, thus, defendants’ alleged discrimination deprived Hamlett of

“advancement in his career in law enforcement,” in addition to causing him

“embarrassment and humiliation” and “emotional distress and mental

anguish.” (Id. ¶¶ 37, 39.)

Title VII makes it unlawful for an employer to “discriminate against

any individual with respect to his . . . terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or

national origin.” 42. U.S.C. § 2000e-2(a). A plaintiff asserting a claim

under Title VII may establish a prima facie case by showing 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

employment action occurred under circumstances giving rise to an

inference of discriminatory intent.” See Feingold v. New York, 366 F.3d

138, 152 (2d Cir. 2004). The last factor may be satisfied “through direct

evidence of intent to discriminate, or by indirectly showing circumstances

giving rise to an inference of discrimination.” Vega v. Hempstead Union

Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (citations omitted).

The City argues that this claim should be dismissed because

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(1) Hamlett has not set forth sufficient allegations to establish that he was

qualified for the detective position, (2) denying Hamlett a position in a

particular assignment is not an adverse employment action for purposes of

Title VII, and (3) even if Hamlett did suffer an adverse employment, he has

not set forth sufficient allegations to establish discriminatory intent. (Dkt.

No. 9, Attach. 5 at 8-11.) In response, Hamlett contends that the

allegations in his complaint are sufficient to maintain his Title VII

employment discrimination claim, and that the City’s arguments are based

on a higher burden of proof that does not apply at the pleading stage. (Dkt.

No. 11 at 3-7.)

The court agrees with Hamlett that, at this early stage in the litigation,

he has set forth sufficient allegations to maintain a Title VII employment

discrimination claim. First, as to whether he was qualified for selection to

the detective division, he has alleged that he has been a police officer

since 2004, and has served in various “prestigious” roles at BPD, including

as an FTO, a position that requires leadership skills and knowledge in all of

BPD’s rules and regulations. (Compl. ¶¶ 8, 11-15, 45.) He has also

alleged that Zikuski, who, as Chief of Police, presumably has knowledge as

to the qualifications for detective, told him that he would make a good

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detective, and that there are no formal criteria or regulations as to detective

selection. (Id. ¶¶ 19, 28.)

Next, “[a]n adverse employment action is a materially adverse

change in the terms and conditions of employment . . . [that] is more

disruptive than a mere inconvenience or an alteration of job

responsibilities.” Abboud v. Cnty. of Onondaga, N.Y., 341 F. Supp. 3d 164,

179 (N.D.N.Y. 2018) (citation omitted). “Examples of materially adverse

changes include termination of employment, a demotion evidenced by a

decrease in wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices .

. . unique to a particular situation.” Id. (citation omitted).

At this juncture, a denial of selection to the detective division, a

quasi-promotion and something that prohibited Hamlett from advancing in

his career, is an adverse employment action. See Sotak v. Bertoni, 501 F.

Supp. 3d 59, 79 (N.D.N.Y. 2020) (“While there is no exhaustive list of what

constitutes an adverse employment action, courts have held that the

following actions, among others, may qualify: discharge or demotion; denial

of a provisional or permanent promotions; involuntary transfer that entails

objectively inferior working conditions; denial of benefits; denial of a

9

requested employment accommodation; denial of training that may lead to

promotional opportunities; and a shift assignment that makes a normal life

difficult for the employee.” (citation omitted)); Krul v. Brennan, 501 F. Supp.

3d 87, 97 (N.D.N.Y. 2020) (finding that allegations that a plaintiff “missed

out on several career advancement opportunities and was denied

professional training” was sufficient to satisfy the “adverse employment

action” element at the motion to dismiss stage). Accordingly, Hamlett’s

complaint sufficiently alleges that he suffered an adverse employment

action for purposes of his Title VII employment discrimination claim.

Finally, the City contends that Hamlett has not sufficiently pleaded

discriminatory intent because one of the allegations on which he relies to

show racial animus—statements from his co-worker, Alan

Quinones—consists of “self-serving hearsay”; he was selected for other

special detail assignments during his tenure at BPD; he was denied

selection to the detective division prior to Ryan taking over as well; and,

aside from “conclusory speculation,” Hamlett has not alleged that he was

similarly situated in all material respects to the officers who were ultimately

selected as detectives. (Dkt. No. 9, Attach. 5 at 8-11.)

As argued by Hamlett, (Dkt. No. 11 at 3-7), many of the City’s

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arguments with respect to this claim are not applicable at the motion to

dismiss stage in the litigation. “[T]o survive a motion to dismiss, a plaintiff

is not required to plead a prima facie case under McDonnell Douglass, at

least as the test was originally formulated.” Garvey v. Wegmans, No. 5:17-

CV-1257, 2018 WL 5983374, at *4 (N.D.N.Y. Nov. 14, 2018) (internal

quotation marks and citations omitted). Rather, “to defeat a motion to

dismiss . . . in a Title VII discrimination claim, a plaintiff must plausibly

allege that (1) the employer took adverse action against him, and (2) his

race, color, religion, sex, or national origin was a motivating factor in the

employment decision.” Vega, 801 F.3d at 87.

Here, Hamlett has alleged that his race was a motivating factor in his

denial to the detective division. He has alleged that Ryan had a

“reputation” at BPD “for being racist,” (Compl. ¶ 35), that Zikuski stated

“that the reason he was not given the position was because . . . Ryan

would not agree to have an African American work in the detective

division,” (id. ¶ 31), and, based on the totality of the complaint, the court

assumes for purposes of ruling on the pending motion that the alleged

lesser qualified individuals who were ultimately selected over him were

white, (see generally Compl.).

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In sum, at this early stage, Hamlett has set forth sufficient allegations

to maintain a Title VII employment discrimination claim against the City,

and, thus, the motion to dismiss in that regard is denied.

2. Retaliation

Hamlett brings a Title VII retaliation claim against the City, asserting

that, because he pursued his NYSDHR and EEOC claims against BPD, he

was not re-assigned as a Pre-Academy instructor, a desirable position that

he had been assigned to on an annual basis from 2017 through 2019.

(Compl. ¶¶ 49-50.) Hamlett alleges that he was also retaliated against by

receiving “a poor evaluation in 2019, despite the fact that [he] performed

his duties no differently than he had for the previous fifteen years,” and by

not being scheduled for “Glock Armorer School.” (Id. ¶¶ 51-52.)

To state a retaliation claim under Title VII, a plaintiff must plausibly

allege “(1) participation in a protected activity; (2) that the defendant knew

of the protected activity; (3) an adverse employment action; and (4) a

causal connection between the protected activity and the adverse

employment action.” Littlejohn v. City of New York, 795 F.3d 297, 315-16

(2d Cir. 2015) (citation omitted). The City concedes that Hamlett’s

commencement of a discrimination claim against it is a protected activity

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and that it was aware of that discrimination claim. (Dkt. No. 9, Attach. 5

at 13.) However, it argues that the claim should be dismissed because

Hamlett has not established there was an adverse employment action

taken against him or that there was a causal connection between the filing

of his complaint and any adverse employment action. (Id. at 13-14.)

First, “in the context of a Title VII retaliation claim, an adverse

employment action is any action that could well dissuade a reasonable

worker from making or supporting a charge of discrimination.” Vega, 801

F.3d at 90 (internal quotation marks and citation omitted). Examples of

adverse actions “include a termination of employment, a demotion

evidenced by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material responsibilities,

or other indices . . . unique to a particular situation.” Beyer v. Cty. of

Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (internal quotation marks and

citation omitted). “Petty slights or minor annoyances that often take place

at work and that all employees experience do not constitute actionable

retaliation.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal

quotation marks and citation omitted). However, “an act that would be

immaterial in some situations is material in others,” and some minor acts

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may be substantial if considered in the aggregate. Id.

Hamlett alleges that each of the following constitute an adverse

employment action: (1) he was not scheduled for a “Glock Armorer School

recertification,” (2) he was not assigned as a Pre-Academy instructor, and

(3) he received a poor evaluation “despite the fact that [he] performed his

duties no differently than he had for the previous fifteen years.” (Compl. ¶¶

45-52.) The City contends that none of these things “affected any material

employment conditions,” as he has alleged “no change to his

responsibilities, pay, rank, or title.” (Dkt. No. 9, Attach. 5 at 13.)

Contrary to the City’s contention, the alleged retaliatory act no longer

needs to “bear on the terms or conditions of employment; the proper

inquiry now is whether the employer’s actions [were] harmful to the point

that they could well dissuade a reasonable worker from” engaging in

protected activity.” Hicks, 593 F.3d at 169 (citation omitted).

Indeed, courts have found that conduct similar to the conduct alleged

by Hamlett constitutes a retaliatory act. See Orsaio v. N.Y. State Dep’t of

Corr. & Cmty. Supervision, No. 6:17-cv-00685, 2019 WL 3891085, at *26

(N.D.N.Y. Aug. 19, 2019) (“[T]he Second Circuit has made it clear that a

poor evaluation could very well deter a reasonable worker from

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complaining, and may therefore constitute an adverse employment action

for purposes of a Title VII retaliation claim.” (internal quotation marks and

citation omitted)); Abboud, 341 F. Supp. 3d at 183 n.23 (“[Plaintiff’s]

retaliation claims based on his omission from the 2013 firearms

qualification list survives.”); Morris v. N.Y. State Police, 268 F. Supp. 3d

342, 369 (N.D.N.Y. 2017) (“Courts in the Second Circuit have taken a

‘generous’ view of retaliatory acts at the motion to dismiss stage.” (citation

omitted)). Accordingly, Hamlett has sufficiently alleged an adverse

employment action for purposes of his retaliation claim.

Next, as for causation, a plaintiff must plausibly plead a connection

between the retaliatory act and his engagement in protected activity. See

42 U.S.C. § 2000e-3(a). To adequately plead causation, a “plaintiff must

plausibly allege that the retaliation was a ‘but-for’ cause of the employer's

adverse action.” Vega, 801 F.3d at 90 (citation omitted). “It is not enough

that retaliation was a ‘substantial’ or ‘motivating’ factor in the employer's

decision.” Id. at 90-91 (citation omitted). However, the “but-for causation

does not . . . require proof that retaliation was the only cause of the

employer’s action, but only that the adverse action would not have

occurred in the absence of the retaliatory motive.” Id. at 91 (internal

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quotation marks, alterations, and citation omitted).

“Causation may be shown by direct evidence of retaliatory animus or

inferred through temporal proximity to the protected activity.” Duplan v.

City of New York, 888 F.3d 612, 625 (2d Cir. 2018) (citation omitted); see

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)

(“Though this Court has not drawn a bright line defining, for the purposes of

a prima facie case, the outer limits beyond which a temporal relationship is

too attenuated to establish causation, we have previously held that five

months is not too long to find the causal relationship.” (citation omitted)).

The City argues that the complaint does not establish causation

because Hamlett’s theory of causation is based on temporal proximity,

which is too attenuated here as seven months passed between Hamlett

filing his discrimination complaint and when he was allegedly passed over

for assignment as a Pre-Academy instructor, and he has not specified

“when (or if) the Glock Armorer School recertification was scheduled” or

when exactly he received his poor evaluation. (Dkt. No. 9, Attach. 5 at 14.)

In his opposition, Hamlett does not respond to this argument, and, instead

asserts that the City relies on “evidentiary burdens . . . that are . . . not

applicable at the pleading stage.” (Dkt. No. 11 at 9-10.)

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Here, there is no allegation of retaliation in the complaint in that there

are no specific facts alleged to establish that Hamlett’s poor evaluation,

failure to be selected as a Pre-Academy instructor, and failure to be invited

to attend Glock Armorer School recertification would not have occurred in

the absence of a retaliatory motive. (See generally Compl.) Additionally,

temporal proximity cannot form the basis of causation given that, aside

from his failure to be selected as a Pre-Academy instructor, which was

seven months after he filed his discrimination complaint, Hamlett has not

alleged when exactly the adverse employment actions took place, or if they

even took place after he filed his NYSDHR and EEOC complaint. (Id.)

Moreover, Hamlett has provided the court with absolutely no clarification or

argument with respect to this issue in his opposition brief. (See generally

Dkt. No. 11.)

Accordingly, Hamlett’s complaint fails to adequately allege the

causation element of his Title VII claim, and, thus, the City’s motion to

dismiss with respect to that claim is granted.3 See New York ex rel.

3 The City also maintains that Hamlett’s retaliation claim must be dismissed for the

separate reason that he has failed to exhaust it. (Dkt. No. 9, Attach. 5 at 15-16.) A plaintiff

asserting a Title VII claim in federal court “generally must file a charge of discrimination with

the EEOC within three hundred days after the alleged unlawful employment practice occurred,

and must then file an action in federal court within 90 days of receiving a right-to-sue letter

from the agency.” Duplan, 888 F.3d at 621-22 (internal quotation marks and citations omitted).

17

Khurana v. Spherion Corp., 511 F. Supp. 3d 455, 480 (S.D.N.Y. 2021)

(“Given the glaring absence of direct evidence of causation, the passage of

approximately seven months between [the plaintiff’s] arguably protected

activity and his termination defeats any inference of causation between the

two.” (citations omitted)); Williams v. N.Y.C. Dep’t of Educ.,

No. 1:19-cv-01353, 2021 WL 1178118, at *9 (S.D.N.Y. Mar. 29, 2021)

(“Indeed, even if one only measures from the date of Plaintiff’s first EEOC

charge to the date of her termination, more than seven months passed

between the charge and Plaintiff’s termination. Plaintiff cannot show

causal connection by temporal proximity.”).

B. Section 1981 Discrimination Claim

Hamlett brings a discrimination claim pursuant to 42 U.S.C. § 1981

against all defendants, asserting that Ryan refused to consider assigning

Hamlett to the detective division because of racial animus, that David and

Hamlett asserts that his retaliation claim is reasonably related to the claim brought to the

EEOC, and, thus, it is exhausted. (Dkt. No. 11 at 10-11.) A claim is “reasonably related” if (1)

“the conduct complained of would fall within the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of discrimination”; (2) “the complaint is one

alleging retaliation by an employer against an employee for filing an EEOC charge”; or (3) “the

complaint alleges further incidents of discrimination carried out in precisely the same manner

alleged in the EEOC charge.” Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (internal

quotation marks and citations omitted). However, even assuming that Hamlett’s retaliation

claim is reasonably related to the claim alleged in his EEOC charge, the court does not reach

the exhaustion issue, as it is not jurisdictional, see Boos v. Runyon, 201 F.3d 178, 182 (2d Cir.

2000), and the claim is dismissed on the merits for the reasons described above.

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Zikuski were aware of this and did not ameliorate the situation, and that

Hamlett was subject to work-place harassment as retaliation for filing his

race-based discrimination complaint. (Compl. ¶¶ 54-67.) In his opposition

to defendants’ motion to dismiss, Hamlett apparently concedes that, as to

individual defendants, he brings this claim against them in their individual

capacities only. (Dkt. No. 11 at 15.) Hamlett also concedes that his claim

can arise only from actions that took place subsequent to August 4, 2017,

based on the applicable three-year statute of limitations, and that

statements and other facts that took place prior to that date are background

information. (Id. at 12.)

Claims of discrimination under Section 1981 are analyzed under the

same standard as Title VII claims. See Pertillar v. AAA W. & Cent. N.Y.,

No. 5:16-cv-238, 2018 WL 583115, at *7 (N.D.N.Y. Jan. 26, 2018) (“The

standards applicable to [the plaintiff’s] Section 1981 claims are the same as

those applicable to his Title VII claims.” (citations omitted)); Brown v. State

Univ. of N.Y., No. 3:12-cv-411, 2015 WL 729737, at *3 n.7 (N.D.N.Y. Feb.

19, 2015) (“Both the Supreme Court and Second Circuit have treated the

substantive issues arising under Title VII and § 1981 identically.” (alteration

and citations omitted)). As such, for the reasons described above, see

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supra Part IV.A.1, Hamlett has set forth sufficient allegations to support a

Section 1981 claim. However, defendants proffer additional reasons for

why this specific claim should be dismissed, which are addressed below.

1. Section 1981 Claim Against Individual Defendants

Defendants argue that the claim should be dismissed against

individual defendants because Hamlett has not sufficiently pleaded that

they were personally involved in any discrimination or that they acted with

any discriminatory intent. (Dkt. No. 9, Attach. 5 at 19-22.)

“In order to make out a claim for individual liability under § 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.” Patterson

v. Cnty. Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (internal quotation

marks and citation omitted). Personal involvement on the part of a

supervising official includes direct participation in the challenged conduct,

and may also be established by allegations setting forth an official’s:

(1) failure to take corrective action after learning of a

subordinate’s unlawful conduct, (2) creation of a

policy or custom fostering the unlawful conduct,

(3) gross negligence in supervising subordinates who

commit unlawful acts, or (4) deliberate indifference to

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the rights of others by failing to act on information

regarding the unlawful conduct of subordinates.

Mabb v. Town of Saugerties, No. 1:18-CV-866, 2020 WL 210313, at *5

(N.D.N.Y. Jan. 14, 2020) (quoting Hayut v. State Univ. of N.Y., 352 F.3d

733, 753 (2d Cir. 2003)).

While the complaint is sparse on details, reading it broadly, Hamlett

has set forth sufficient allegations to establish personal involvement on the

part of all individual defendants. He has alleged that Ryan directly

committed the discriminatory act, and that David and Zikuski were aware of

the act, and did nothing to correct or ameliorate the situation. (Compl. ¶¶

55-56, 61-62.) In particular, Zikuski is alleged to have been “fully aware”

that Ryan had a bias against African Americans prior to the time he

promoted him to Captain . . . and that . . . [Hamlett] would never be

assigned to detective so long as Ryan was [in charge of the division].” (Id.

¶ 56.) Further, Hamlett alleges that Zikuski knew he was being “shunned

and ostracized by both officers and supervisors” at BPD. (Id. ¶¶ 59-60.)

At this early stage, these allegations are sufficient, if only by a thread,

to maintain a Section 1981 claim against individual defendants. See Avent

v. Target Corp., No. 1:19-CV-1565, 2021 WL 3089120, at *6 (N.D.N.Y. July

21

22, 2021) (“Plaintiff alleges that [individual defendants] failed to address

harassment directed at him by white employees. At this stage, that is

enough, albeit barely, to keep them in the case.” (citation omitted)); Amaya

v. Ballyshear LLC, 295 F. Supp. 3d 204, 225 (E.D.N.Y. 2018) (“The Plaintiff

alleges that Kaczynski, [her] direct supervisor, was the principal actor in her

discrimination claims. Sygman, as Kaczynski’s supervisor, was allegedly

informed about the discrimination over a period of several months but took

no remedial action. The Plaintiff has clearly stated a claim of individual

liability against both Kaczynski and Sygman under § 1981.”). Thus, the

motion to dismiss in that regard is denied.

2. Monell Claim

Defendants argue that Hamlett’s Section 1981 claim should be

dismissed against the City because he “fails to allege a specific policy or

practice, let alone official endorsement or any specific custom, or usage.”

(Dkt. No. 9, Attach. 5 at 23.)

A municipality may be liable under § 1983 only “when execution of a

government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts

the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To

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establish a municipal policy or custom, a plaintiff must allege (1) a formal

policy endorsed by the municipality; (2) actions taken or decisions made by

the municipality’s policymakers, which caused the alleged civil rights

violation; (3) a practice so widespread that it constitutes “a custom or

usage”; or (4) a failure by the municipality’s policymakers to properly train

or supervise their subordinates. See Green v. City of New York, 465 F.3d

65, 80-82 (2d Cir. 2006).

Hamlett argues that the complaint sets forth sufficient allegations to

maintain a claim against the City due to David and Zikuski’s status as

policymakers with respect to personnel decisions. (Dkt. No. 11 at 15-16.)

On reply, defendants’ do not address the issue of whether David and

Zikuski are final policymakers for purposes of Hamlett’s claim. (Dkt. No. 13

at 9-10.) Although it might ultimately be revealed during discovery that this

is not true, it is clear that David and Zikuski may be considered

policymakers for purposes of Monell liability at this phase of the litigation.

See Gronowski v. Spencer, 424 F.3d 285, 296-97 (2d Cir. 2005) (holding

retaliatory termination by mayor of city established Monell liability because

“he has final authority over hiring and firing decisions, which are

discretionary matters”); Griffin v. Vill. of Frankfort, No. 10-CV-627, 2012 WL

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4491276, at *4 (N.D.N.Y. Sept. 28, 2012) (“Thus, the record certainly

demonstrates or suggests that [the Chief of Police] has final policy-making

authority in the Village, at least insofar as police matters go.”).

Accordingly, defendants’ motion to dismiss in this regard is denied as

well. And, just like any other argument made in their motion to dismiss,

defendants are free to renew this argument at summary judgment.

C. Attorney’s Fees

Hamlett asserts in the complaint that he is entitled to “reasonable

attorney’s fees including the fees expended in the administrative

proceedings before the [NYSDHR].” (Compl. ¶ 67.) In their motion to

dismiss, defendants contend that “[b]ecause [Hamlett] fails to plead [that]

he prevailed before the NYSDHR and/or the EEOC, he cannot state a

claim for attorney fees from his actions before those bodies in this

proceeding.” (Dkt. No. 9, Attach. 5 at 24.) Because there is virtually no

briefing on this issue, and granting defendants’ motion in this regard will not

narrow the issues in the case, the court declines to address whether

Hamlett can recover attorney’s fees from litigating his NYSDHR and EEOC

actions at this time. Defendants can renew their motion at a later juncture.

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V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that defendants’ motion to dismiss (Dkt. No. 9) is

GRANTED IN PART and DENIED IN PART as follows:

GRANTED as to the following claims, which are DISMISSED,

Hamlett’s (1) Title VII claims to the extent that they are based

on actions taken by defendants prior to October 2018; (2) Title

VII retaliation claim; (3) Title VII employment discrimination

claim against individual defendants; (4) Section 1981 claim

against individual defendants to the extent that the claim is

brought against them in their official capacities; and (5) Section

1981 claim to the extent that the claim is based on actions

taken by defendants prior to August 2017; and

DENIED in all other respects; and it is further

ORDERED that the following claims remain against the City of

Binghamton: (1) a Title VII employment discrimination claim and (2) a

Section 1981 discrimination claim; and it is further

ORDERED that the following claim remains against individual

defendants: a Section 1981 discrimination claim, brought against them in

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their individual capacities; and it is further

ORDERED that defendants shall respond to the complaint, (Dkt.

No. 1), within the time allotted by the rules; and it is further

ORDERED that the parties shall contact Magistrate Judge Miroslav

Lovric to schedule further proceedings; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

August 23, 2021 \

Albany, New York Sey

‘SDistit Judge

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