Quinones v. City of Binghamton

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

ALAN QUINONES,

3:19-cv-1460

Plaintiff, (GLS/ML)

v.

CITY OF BINGHAMTON et al.,

Defendants.

________________________________

MEMORANDUM-DECISON AND ORDER

I. Introduction

Plaintiff Alan Quinones commenced this action against defendants

the City of Binghamton; Richard David, Mayor of the City of Binghamton;

Joseph Zikuski, Chief of Police for the City of Binghamton; and John Ryan,

Assistant Chief of Police for the City of Binghamton pursuant to 42 U.S.C.

§§ 1981, 1983. (Compl., Dkt. No. 1.) Following an appeal, the Second

Circuit vacated in part and remanded the court’s dismissal of this action,

(Dkt. Nos. 12, 17), and defendants then renewed their motion to dismiss,

(Dkt. Nos. 19, 20), which is currently pending, (Dkt. No. 6). For the

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

described below.

II. Background1

Quinones brought this action against defendants in November 2019,

asserting that he had been subject to discrimination and retaliation in

violation of Sections 1981 and 1983. (See generally Compl.) Defendants

moved to dismiss, (Dkt. No. 6), which the court granted in a Memorandum-

Decision and Order (hereinafter “the August 2020 MDO”), (Dkt. No. 12).

The court found that the only enumerated cause of action in the complaint

was a First Amendment retaliation claim, and that Quinones did not

sufficiently plead that claim. (See generally id.)

On appeal, the Second Circuit issued a mandate (hereinafter “the

Mandate”), which affirmed in part, and vacated and remanded in part, the

August 2020 MDO and the corresponding judgment. (Dkt. No. 17,

Attach. 1.) Specifically, the Second Circuit held that this court “correctly

concluded that Quinones failed to state a claim that he was punished for

engaging in protected First Amendment activity,” but that Quinones’

complaint “sufficiently informed” defendants that he was bringing a

discrimination claim, “despite his failure to enumerate it as a separate

1 The court assumes the parties’ familiarity with the underlying facts,

which are stated in full in the court’s August 11, 2020 Memorandum-

Decision and Order. (Dkt. No. 12.)

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cause of action.” (Id. at 8, 16.) In other words, the Second Circuit held

that this court should have, but did not, address whether Quinones set

forth sufficient allegations to maintain a discrimination claim, and

remanded the matter back to the court to conduct that analysis. (See

generally id.)

In accordance with the court’s June 14, 2021 Text Only Order, (Dkt.

No. 18), the parties then filed a joint status report, (Dkt. No. 19). Quinones

maintained that the Second Circuit concluded that the complaint asserts a

Section 1981 employment discrimination claim and sought to proceed to a

Rule 16 conference, and defendants sought to renew their motion to

dismiss, or, in the alternative, leave to renew or to re-submit a motion to

dismiss on the remaining issue. (Id.) In response, the court revived

defendants’ motion to dismiss, and explained that, contrary to Quinones’

position in the joint status report, the Mandate specifically noted that

identification of a Section 1981 claim in the complaint “is separate from

whether the complaint’s factual allegations show that [the] claim has

substantive plausibility.” (Dkt. No. 20 (quoting Dkt. No. 17, Attach. 1

at 16).) The court permitted the parties to file supplemental briefs. (Id.)

Defendants filed a supplemental brief, (Dkt. No. 21), but Quinones did not.

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Now pending is defendants’ revived motion to dismiss with respect to

Quinones’ discrimination claim. (Dkt. No. 6.)

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

As contemplated by the Mandate, (Dkt. No. 17, Attach. 1), as well as

the parties’ joint status report, (Dkt. No. 19), the only claim that remains in

Quinones’ complaint is a Section 1981 discrimination claim against all

defendants. Quinones asserts that he has “consistently and systematically

[been] the victim of discriminatory treatment based on his Hispanic origin.”

(Compl. at 1.) Specifically, he alleges that Ryan “repeatedly” called him

“Ricky Ricardo,” “mimick[ed] [him] when he was speaking Spanish by

imitating him in a derogatory manner,” and made numerous other insulting

comments about his background. (Id. ¶¶ 8-24.) He also alleges that a

patrol officer directed an ethnic slur towards a Hispanic colleague, and

that, at times, he was subject to harassment “almost on a daily basis.” (Id.

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¶¶ 13, 19.)

Quinones maintains that “but for the discriminatory conduct based on

his Hispanic origin,” he “would likely have been further advanced in his

career.” (Id. at 1.) In particular, and most importantly to his claim,

Quinones asserts that he was “passed over” for a promotion to Captain in

2018 for “a Caucasian who was clearly less qualified.” (Id. ¶ 21.)

Section 1981 provides that “[a]ll persons within the jurisdiction of the

United States shall have the same right . . . to make and enforce

contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

Section 1981 prohibits racial discrimination “with respect to the enjoyment

of benefits, privileges, terms, and conditions of a contractual relationship,

such as employment.” Calvelos v. City of New York, No. 19 civ. 6629,

2020 WL 3414886, at *9 (S.D.N.Y. June 22, 2020) (citation omitted). A

plaintiff bringing a claim under Section 1981 “may allege that discrimination

occurred in the form of discrete adverse employment actions, as well as by

means of conduct creating a hostile work environment.” Brown v.

Montefiore Med. Ctr., No. 19 CV 11474, 2021 WL 1163797, at *4 (S.D.N.Y.

Mar. 25, 2021) (internal quotation marks and citation omitted).

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A. Timeliness

As a preliminary matter, defendants argue that Quinones’

discrimination claim is time-barred to the extent that it is based on the

alleged derogatory comments made by Ryan in 2014 or that he was not

promoted to Sergeant until 2012 and to Lieutenant until 2016. (Dkt. No. 6,

Attach. 1 at 9-10.) In response, Quinones argues that the continuing

violation doctrine makes any claim based on these events timely. (Dkt. No.

8 at 7.)

The court agrees in part with defendants, (Dkt. No. 9 at 3-5), that the

continuing violation doctrine does not apply to the extent that Quinones

alleges that events that took place outside of the limitations period amount

to adverse employment actions for purposes of maintaining his claim. See

Oliver v. N.Y. State Police, No. 1:15-cv-444, 2020 WL 1989180, at *29

(N.D.N.Y. Apr. 27, 2020) (“[T]he continuing violation doctrine does not

apply to discrete unlawful acts, even if the discrete acts were undertaken

pursuant to a general policy that results in other discrete acts occurring

within the limitations period.” (internal quotation marks and citation

omitted)); see also Bamba v. Felton, 758 F. App’x 8, 11 (2d Cir. 2018)

(“‘[T]ermination, failure to promote, denial of transfer, or refusal to hire’ are

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discrete retaliatory acts insufficient to invoke the continuing violation

doctrine.” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113-14 (2002)). In other words, because Quinones’ failure to be promoted

before 2012 and 2016 are discrete acts, the continuing violation does not

apply.

However, discriminatory conduct that occurred outside of the

limitations period can still be used as “background evidence” in support of

his claim that he suffered an adverse employment action within the

limitations period—here, that he was not given a promotion in 2018 due to

his Hispanic heritage. See Hamlett v. City of Binghamton, No.

3:20-cv-880, 2021 WL 3723091, at *2 (N.D.N.Y. Aug. 23, 2021). Further,

the derogatory statements that Ryan allegedly made in 2014 are not

“discrete acts” as contemplated by this rule, and, thus, because Quinones

alleges that comments like these were made continuously up and until he

commenced the instant action, his hostile work environment claim based

on these comments is not time-barred. See Roberts v. Sage Corp., No.

3:20-CV-365, 2021 WL 3617670, at *4 (N.D.N.Y. Aug. 16, 2021) (“[H]ostile

work environment claims involve a repetitive pattern of conduct, rather than

discrete acts. Therefore, by their nature, hostile work environment claims

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more easily lend themselves to application of the continuing violation

doctrine.” (citations omitted)).

B. Merits of Quinones’ Claim

With respect to the merits of Quinones’ claim, defendants argue that

it should be dismissed because “his complaint is devoid of anything but

conclusions and speculation regarding the purported failure to promote him

to Captain,” he has not set forth sufficient allegations to establish that he

would have been promoted “but for” his Hispanic heritage, and the

comments made to him by Ryan and other members of the Binghamton

Police Department are not sufficiently “severe or pervasive” to sustain a

discrimination claim based on a hostile work environment. (Dkt. No. 6,

Attach. 1 at 10-17; Dkt. No. 21 at 3-4.)

1. Adverse Employment Action

In order to plead a Section 1981 discrimination claim based on an

adverse employment action, a plaintiff must show that “(1) the employer

discriminated against him (2) because of his race, color, religion, sex, or

national origin.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,

85 (2d Cir. 2015) (citation omitted); 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

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

as those applicable to his Title VII claims.” (citations omitted)).

“As to the first element, an employer discriminates against a plaintiff

by taking an adverse employment action against him.” Vega, 801 F.3d

at 85. “An 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. Cty.

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). As to the second element, the Supreme

Court has recently held that to prevail on a Section 1981 claim, “a plaintiff

must initially plead and ultimately prove that, but for race, [he] would not

have suffered the loss of a legally protected right.” Comcast Corp. v. Nat’l

Ass’n of African Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020). As

such, it is insufficient to merely plead that race was a motivating factor in

the alleged discriminatory action. See id. at 1017-18.

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With respect to Quinones’ discrimination claim based on an adverse

employment action, he alleges that he is of Hispanic heritage, that he was

denied a promotion to Captain despite having “significant experience in

grant writing, intelligence, [and] crime prevention,” and, thus, being the

most “qualified candidate on the list”; and that he was passed over for the

promotion in favor of “a Caucasian who was clearly less qualified . . . in

that he had none of [those] credentials and . . . had lower test scores.”

(Compl. ¶¶ 20-21.) Moreover, he alleges that “but for the discriminatory

conduct based on his Hispanic origin,” he “would likely have been further

advanced in his career.” (Id. at 1.) As such, although the complaint is far

from a model of clarity, Quinones does allege that he is a member of a

protected class, that he suffered an adverse employment action when he

was denied the promotion, that he was qualified for the promotion, and

that, but for his Hispanic heritage, he would have been promoted. (See

generally id.)

Accordingly, at this early stage in the litigation, and accepting all of

his allegations as true, Quinones has set forth sufficient allegations to

maintain a Section 1981 discrimination claim based on an adverse

employment action, if only just barely. See Levitant v. City of N.Y. Hum.

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Res. Admin., 558 F. App’x 26, 29 (2d Cir. 2014) (“It is well-established that

a failure to promote is an adverse employment action.” (citation omitted));

Craven v. City of N.Y., No. 19-CV-1486, 2020 WL 2765694, at *5 (S.D.N.Y.

May 28, 2020) (denying a motion to dismiss a Section 1981 discrimination

claim based on adverse employment actions, and finding that “the

allegations of [the plaintiff’s supervisor’s] discriminatory comments and

conduct . . . provide relevant background evidence by shedding light on

Defendants’ motivation[, and] . . . create a mosaic of information supporting

an inference of discrimination”).

Defendants’ motion to dismiss in this regard is therefore denied.

2. Hostile Work Environment

To establish a hostile work environment claim under Section 1981, “a

plaintiff must show that the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive

working environment.” Littlejohn v. City of New York, 795 F.3d 297, 320-

21 (2d Cir. 2015) (internal quotation marks and citation omitted). The

hostile work environment test has objective and subjective elements: “the

conduct complained of must be severe or pervasive enough that a

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reasonable person would find it hostile or abusive, and the victim must

subjectively perceive the work environment to be abusive.” Raspardo v.

Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (citations omitted).

When deciding “whether a plaintiff suffered a hostile work

environment, [the court] must consider the totality of the circumstances,

including the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s work

performance.” Love v. Premier Util. Servs., LLC, 186 F. Supp. 3d 248, 253

(E.D.N.Y. 2016) (internal quotation marks and citation omitted). “[W]hether

racial slurs constitute a hostile work environment typically depends upon

the quantity, frequency, and severity of those slurs, considered

cumulatively in order to obtain a realistic view of the work environment.”

James v. Van Blarcum, 782 F. App’x 83, 85 (2d Cir. 2019) (citation

omitted). “The incidents complained of must be more than episodic; they

must be sufficiently continuous and concerted in order to be deemed

pervasive.” Littlejohn, 795 F.3d at 321 (citation omitted).

However, the Second Circuit “ha[s] repeatedly cautioned against

setting the bar too high” in this context, holding that “a plaintiff need only

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plead facts sufficient to support the conclusion that []he was faced with

harassment . . . of such quality or quantity that a reasonable employee

would find the conditions of [his] employment altered for the worse.”

Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks

and citation omitted).

With respect to the existence of a hostile work environment,

Quinones alleges that Ryan “repeatedly” called him “Ricky Ricardo,”

“mimick[ed] [him] when he was speaking Spanish by imitating him in a

derogatory manner,” and made numerous other insulting comments about

his background, and that other Hispanic officers have been called racial

slurs. (Id. ¶¶ 8-24.) According to Quinones, this alleged race-based

harassment has been constant and continuous, and has been perpetrated

by both supervisors and patrol officers at the Binghamton Police

Department. (Id.) As to Zikuski, Quinones asserts that, as Chief of Police,

he knew, or should have known, about the alleged harassment. (Id. ¶ 57.)

At this juncture, the court is satisfied that Quinones has established

that he has faced discriminatory ridicule that is sufficiently severe or

pervasive to alter the conditions of his employment, and, thus, defendants’

motion to dismiss in this regard is denied. See Avent v. Target Corp., No.

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1:19-CV-1565, 2021 WL 3089120, at *6 (N.D.N.Y. July 22, 2021) (“Plaintiff

alleges that [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.” (citations omitted)); Ramirez v. NYP Holdings, Inc., No. 18

Civ. 12058, 2020 WL 470011, at *12 (S.D.N.Y. Jan. 29, 2020) (denying a

motion to dismiss a hostile work environment claim, based on allegations

that, throughout his employment, the plaintiff was subjected to racial slurs

and degrading comments regarding his Hispanic heritage, and that “he and

other Hispanic employees were isolated and given the worst work

assignments on the least desirable shifts”); see also Patane, 508 F.3d

at 114 (“[W]hether a particular work environment is objectively hostile is

necessarily a fact-intensive inquiry.” (citation omitted)).

Defendants are free to renew their arguments on summary judgment

when the parties and the court have the benefit of a more developed

factual record.

C. Personal Involvement

Defendants argue that Quinones’ claim must be dismissed for the

independent reason that he has not alleged their personal involvement in

the alleged unlawful conduct. (Dkt. No. 6, Attach. 1 at 10-14.) “It is well

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settled in this Circuit that ‘personal involvement of defendants in the

alleged constitutional deprivations is a prerequisite to an award of

damages under § 1983.’”2 See Johnson v. Miller, No. 9:20-CV-622, 2020

WL 4346896, at *9 (N.D.N.Y. July 29, 2020) (quoting Wright v. Smith, 21

F.3d 496, 501 (2d Cir. 1994)). That is to say, plaintiffs “must allege a

tangible connection between the acts of the defendant and the injuries

suffered.” Id. (internal quotation marks and citation omitted). As to

supervisory liability, there is no “special test,” and “a plaintiff must plead

and prove that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.” Tangreti v.

Bachmann, 983 F.3d 609, 614 (2d Cir. 2020) (internal quotation marks and

citation omitted).

Based on this standard, Quinones’ argument that personal

involvement on David’s part has been established “by way of omission,”

based merely on his allegation that he “failed to take any ameliorative

action,” after receiving notice of “pervasive racism” less than two weeks

before Quinones commenced the instant action, (Dkt. No. 8 at 3, 15;

2 The Mandate makes clear that the Second Circuit interprets

Quinones’ claim as a Section 1981 claim brought under Section 1983.

(Dkt. No. 17, Attach. 1 at 14 n.4.)

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Compl. ¶¶ 52-54), is unavailing. Indeed, the complaint is completely

devoid of any allegations that David’s own individual actions violated

Quinones’ rights. (See generally id.) Accordingly, the Section 1981 claim

is dismissed as against David for lack of personal involvement.

However, contrary to defendants’ contention, (Dkt. No. 6, Attach. 1

at 10-14), Quinones has established personal involvement on the part of

Zikuski and Ryan. Ryan is alleged to have been the main culprit in the

discriminatory conduct, at least with respect to Quinones’ hostile work

environment claim. (Compl. ¶¶ 12-15.) And, as to Zikuski, accepting the

allegations as true at this stage, it can reasonably be inferred that he is the

person who ultimately denied Quinones a promotion to Captain because of

his Hispanic heritage, as Zikuski is the Chief of the Binghamton Police

Department and is alleged to have told Quinones that he would never be a

Captain because his career is “done.” (Id. ¶¶ 4, 29.) See Calvelos, 2020

WL 3414886 at *12 (“Where a defendant is meaningfully involved in the

process leading to the adverse employment action, that defendant may be

held liable for the action.” (internal quotation marks and citation omitted)).

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D. Monell Claim

Defendants argue that Quinones’ Section 1981 claim should be

dismissed against the City because he “fails to allege that any

discrimination . . . [was a] product[] of a policy, custom, or practice of the

City.” (Dkt. No. 6, Attach. 1 at 23-24.) As an initial matter, claims cannot

be brought against municipalities under Section 1981 alone, and, instead,

must be raised through a Section 1983 action. See Duplan v. City of New

York, 888 F.3d 612, 616 (2d Cir. 2018). However, in the Mandate, the

Second Circuit construed that Quinones’ “claims against [the City],

incorrectly brought under Section 1981 alone, as [Section] 1983 claims.”

(Dkt. No. 17, Attach. 1 at 14 n.4 (internal quotation marks and citations

omitted).)

A municipality may be liable under Section 1983 “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 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

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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).

Quinones alleges in his complaint that Zikuski’s conduct was done

“on behalf of the City” because he is a final policymaker. (Compl. ¶ 58.)

Although it might ultimately be revealed during discovery that this is not

true, it is clear that Zikuski may be considered a policymaker for purposes

of Monell liability at this phase of the litigation. See Griffin v. Village of

Frankfort, No. 10-CV-627, 2012 WL 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,

and, just like any other argument made in their motion to dismiss,

defendants are free to renew it at summary judgment.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that defendants’ motion to dismiss (Dkt. No. 6) is

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GRANTED IN PART and DENIED IN PART as follows:

GRANTED as to Quinones’ Section 1981 claim against David,

which claim is DISMISSED; and

DENIED in all other respects; and it is further

ORDERED that a Section 1981 discrimination claim remains against

the City of Binghamton, Zikuski, and Ryan; and it is further

ORDERED that the remaining defendants respond to the complaint

(Dkt. No. 1) within the time allotted by the Rules; and it is further

ORDERED that the parties 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.

January 5, 2022 \,

Albany, New York eee er :

“S-Distrct Judge

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