Pierre v. City Of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

────────────────────────────────────

LUC R. PIERRE,

Plaintiff, 17-cv-5782 (JGK)

- against - MEMORANDUM OPINION AND

ORDER

THE CITY OF NEW YORK, et al.,

Defendants.

────────────────────────────────────

JOHN G. KOELTL, District Judge:

The plaintiff, Luc R. Pierre, brings this action pursuant

to 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the New York City

Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8–107 et seq.,

against the City of New York (“the City”), and individual

defendants, Seunghwan Kim, James Cox, Katherine Reilly, Lauren

Jacobson, Adam Karp, and Judith Brusgard. The plaintiff alleges

that the defendants denied him promotions because of his age,

race, and national origin, that the defendants subjected him to

a hostile work environment, and that the plaintiff faced

retaliation because he complained about this discrimination. The

defendants now move for summary judgment dismissing all claims

against them. For the reasons stated below, the defendants’

motion is granted.

I.

The standard for granting summary judgment is well

established. “The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.,

Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994). “[T]he trial

court’s task at the summary judgment motion stage of the

litigation is carefully limited to discerning whether there are

any genuine issues of material fact to be tried, not to deciding

them. Its duty, in short, is confined at this point to issue-

finding; it does not extend to issue-resolution.” Gallo, 22 F.3d

at 1224. The moving party bears the initial burden of “informing

the district court of the basis for its motion” and identifying

the matter that “it believes demonstrate[s] the absence of a

genuine issue of material fact.” Celotex, 477 U.S. at 323. The

substantive law governing the case will identify those facts

that are material and “[o]nly disputes over facts that might

affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a

court must resolve all ambiguities and draw all reasonable

inferences against the moving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see

also Gallo, 22 F.3d at 1223. Summary judgment is improper if any

evidence in the record from any source would enable a reasonable

inference to be drawn in favor of the nonmoving party. See

Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

If the moving party meets its burden, the nonmoving party must

produce evidence in the record and “may not rely simply on

conclusory statements or on contentions that the affidavits

supporting the motion are not credible. . . .” Ying Jing Gan v.

City of New York, 996 F.2d 522, 532 (2d Cir. 1993).

II.

The following facts are undisputed except where noted.

A.

The plaintiff is an African-American man who was born in

Haiti in 1949. Defs.’ 56.1 Stmt. ¶¶ 2, 33. In April, 2013, the

plaintiff began working as an Administrative Claims Examiner in

the New York City Office of the Comptroller (“OOC”). Id. at ¶ 5.

As of April, 2019, the plaintiff continued to be employed in

that position. Id. at ¶ 1. Prior to working in the OOC, the

plaintiff worked in the retail banking industry for fifteen

years and as an Assistant District Attorney in the Kings County

District Attorney’s office for twelve years. Id. at ¶ 14; Méndez

Decl. Ex. F.

B.

On December 16, 2014, the OOC posted the position of

Division Chief, Property Damage Division. Defs.’ 56.1 Stmt.

¶ 30. The next day, the plaintiff applied for the position. Id.

at ¶ 31. The plaintiff, as well as nine other individuals, were

interviewed as part of the selection process for the position.

Id. at ¶ 32. The plaintiff was interviewed by James Cox, John

Graham, and Vincent Rivera. Id. at ¶ 33. The plaintiff’s

interviewers determined that he was not well prepared for the

interview, was not motivated, and lacked the applicable

supervisory experience. Id. at ¶ 34. Emilio Gonzalez, a white

Hispanic male born in 1966, was selected for the position. Id.

at ¶ 35.

Following Gonzalez’s selection in February, 2015, Gonzalez

changed the plaintiff’s assignments and removed some of the

plaintiff’s supervisory responsibilities. Pl. Dep. at 112;

Gonzalez Decl. ¶ 1. The plaintiff alleges that when he inquired

as to the reason for the removal of his supervisory

responsibilities, Gonzalez responded that his bosses actually

wanted to get rid of the plaintiff. Id. Gonzalez explained that

Kim told him to get rid of “the Black guy,” which the plaintiff

deduced was a reference to him, because he was making too much

money. Pl. Dep. at 112; Gonzalez Decl. ¶ 10. Kim denies ever

referring to the plaintiff in this way. Kim Dep. at 24.

On January 20, 2016, the OOC once again posted the position

of Division Chief, Property Damage Division. Defs.’ 56.1 Stmt.

¶ 39. The position required candidates to possess four or more

years of experience in investigating and adjusting tort claims

and to have had eighteen months of such experience in a

supervisory, managerial, or executive capacity. Méndez Decl. Ex.

R. Six days later, the plaintiff applied for the position again.

Defs.’ 56.1 Stmt. ¶ 40. The plaintiff, as well as four other

individuals, were interviewed as part of the selection process

for the position. Id. at ¶ 41. The plaintiff was interviewed by

James Cox, Seunghwan Kim, and Katherine Reilly. Id. at ¶ 42. At

the time, Katherine Reilly reported to James Cox, and James Cox

reported to Seunghwan Kim. Kim Dep. at 31-32.

During the plaintiff’s interview, the plaintiff stated that

being a Division Chief would “not be my passion of life,” that

he had been assigned to the Property Damage Division when he

first applied, and didn’t know many people that would willingly

choose that division. Pl. Dep. at 133-37. He also stated that he

wanted to become Division Chief because it was a “higher

position” from which he might be able to “qualify for something

else.” Id. at 133-34. Kim then asked him, “[a]fter the Division

Chief position, then what? And then what?” The plaintiff felt

Kim asked this line of questions because Kim felt that the

plaintiff would not be at the office for much longer because of

the plaintiff’s age. Id. at 137-38.

The plaintiff’s interviewers noted that he did not

interview well, lacked the supervisory experience for the

position, lacked experience for handling property damage claims,

and lacked enthusiasm for the Property Damage Division; the

interviewers were left with the impression that he was applying

for the promotion purely for promotion’s sake. Defs.’ 56.1 Stmt.

¶¶ 43-45, 48. The plaintiff does not dispute that these comments

were what the interviewers noted, but disagrees with the

interviewers’ findings. Pl.’s 56.1 Stmt. ¶¶ 43-45, 48. Regarding

Pierre’s interview, Reilly believed that “[i]t was probably one

of the worse [sic] interviews that anyone applying for the

position had.” Reilly Dep. at 38. Judith Brusgrad, a white

woman, was selected for the position. Defs.’ 56.1 Stmt. ¶ 46.

Brusgard, who was approximately 50 years old at the time of her

selection, had been employed by the OOC in several capacities,

including as a manager, and had worked in the Property Damage

Division from 1988 to 1995 and from 2007 to the time of her

selection. Id. at ¶ 51. Brusgard’s interviewers determined that

she interviewed well, had extensive experience in handling

property damage claims, and had good ideas on how to improve the

Property Division’s workflow and the handling of claims. Id. at

¶¶ 52-55. After the interview, Reilly highly recommended

Brusgard and thought she was the “Number 1” candidate. Reilly

Dep. at 42-43.

The plaintiff alleges that in early 2016, when he believed

he was acting as a supervisor, he referred a case to a coworker,

but was later told by that coworker to retrieve the report from

Brusgard. Pl. Dep. at 193-94. The plaintiff had thought Brusgard

was a clerical person. Id. at 194. The plaintiff felt humiliated

because his coworker told him, in front of his colleagues, that

Brusgard was the new person in charge of the Property Damage

Division. Id.

On June 24, 2016, the OOC posted the position of Division

Chief, School Claims Division. Defs.’ 56.1 Stmt. ¶ 57. The

position required candidates to possess four or more years of

experience in investigating and adjusting tort claims and to

have had eighteen months of such experience in a supervisory,

managerial or executive capacity. Méndez Decl. Ex. Y. Three days

later, the plaintiff applied for the position. Defs.’ 56.1 Stmt.

¶ 58. The plaintiff, as well as four other individuals, were

interviewed as part of the selection process for the position.

Id. at ¶ 59. The plaintiff was interviewed by Lauren Jacobson

and Adam Karp, who determined that although the plaintiff had

prior legal experience before coming to the OOC, he lacked the

knowledge of personal injury claims and management experience

required for the position. Id. at ¶¶ 60-62. Karp and Jacobson

interviewed five candidates and concluded that Ross Goldband was

the best candidate for the position, given his prior supervisory

experience in private practice and his work at the OOC. Jacobson

Dep. at 34, 37-38; Defs.’ 56.1 Stmt. ¶¶ 64–65. Goldband also

impressed his interviewers with how prepared he was for the

interview by reviewing school claims and providing suggestions

to improve the School Claims Division. Defs.’ 56.1 Stmt. ¶ 64.

Jacobson and Karp recommended Goldband to the assistant

comptroller, Seunghwan Kim. Jacobson Dep. at 35.

As assistant comptroller, Kim reviewed the recommendation

and sent it to the general counsel and human resources for

approval. Kim Dep. at 34. Karp testified that Kim had not

expressed any opinion concerning the plaintiff’s candidacy for

the position to him. Karp Dep. at 36-37. Jacobson could not

recall if Kim had expressed any opinion to her about the

plaintiff prior to his interview. Jacobson Dep. at 31. Goldband

is a white man. Pl. Dep. at 198. At some point, Karp went to the

plaintiff’s work station and told him that he had a lot to offer

but that they were “going in another direction”; the plaintiff

took this to mean that Karp and his supervisors were looking for

younger, white candidates to fill the position. Id.

On or around August, 2016, the plaintiff spoke to the

Deputy Comptroller for Public Affairs and told her that he was

being discriminated against based on age, race, and national

origin. Defs.’ 56.1 Stmt. ¶ 118. The plaintiff did not file a

complaint with the Equal Employment Opportunity Commission and

did not complain to anyone at the OOC about the alleged

discrimination. Id. at ¶¶ 119-21. In March, 2017, the plaintiff

filed a Notice of Claim against the City for “unlawful

employment discrimination/retaliation and violation of civil and

constitutional rights.” Id. at ¶ 122; Méndez Decl. Ex. FF.

C.

The plaintiff alleges that since his report to the Deputy

Comptroller in August, 2016, his supervisors have retaliated by

constantly subjecting him to humiliation and insults and have

made his work environment hostile. Am. Compl. ¶ 55. The

plaintiff cites instances of retaliatory behavior, including

that the plaintiff requested a better phone set and a different

work station, and both requests were denied. Pl. Dep. at 164-65.

The defendants contend that the phone sets used by all claims

examiners were the same and that the request to move work

stations was denied because it was not operationally necessary.

Reilly Dep. at 64-65.

The plaintiff also states that other employees had work

stations and were given 6’ x 8’ cubicles, but that he was given

a dirty cubicle that was in a small corner, and that at one

point, he had plywood for a desk. Pl. Dep. at 166-67. The

defendants contend that the plaintiff’s workspace was outfitted

with appropriate desk cabinets and no raw materials were used.

Reilly Dep. at 70-71.

The plaintiff states that he was humiliated when Reilly

came to the plaintiff and told him in a loud voice in the

presence of his coworkers that “the guys are coming tonight to

work, when they come, don’t bother them.” Pl. Dep. at 169.

Reilly denies that this conversation was directed at the

plaintiff, and states that she had a conversation with all

members of the Property Damage Division to not reach out

directly to facilities staff to request any changes to their

workstations. Reilly Dep. at 72.

The plaintiff also states that over 800 Sanitations Claims

cases were transferred to him in January, 2017. Pl. Dep. at 170-

71. The plaintiff alleges that about 100 reports, which were

necessary to process the claims and were sent to the Division

from the Sanitation Department, had disappeared. Am. Compl. ¶¶

79-81. The plaintiff alleges that the Sanitation Department

refused to provide duplicate copies, and as a result, the

plaintiff was unable to process the claims in a timely manner.

Id. at ¶ 82. Brusgard, however, stated that all reports were

eventually made available, either from the Sanitation department

or through a different database. Brusgard Dep. at 110-12.

Brusgard informed the plaintiff that the plaintiff’s next

performance evaluation would not be positive if the claims were

not completed on time. Pl. Dep. at 171-72.

In May, 2017, the plaintiff received a performance

evaluation covering the period of January 1, 2016 to December

31, 2016 and was rated overall “Needs Improvement.” Defs.’ 56.1

Stmt. ¶ 104. After the evaluation, the plaintiff entered into a

Performance Improvement Plan from June 2, 2017 to December 1,

2017. Id. at ¶ 107.

Between December, 2017 and January, 2018, the plaintiff and

Brusgrad exchanged several emails regarding a verbal warning

given to the plaintiff concerning the appropriate times for

lunch hour and his arrival at work. Defs.’ 56.1 Stmt. ¶ 116. The

plaintiff said that he had not received an oral warning about

his attendance prior to the emails, and cited this as an example

of the humiliation and retaliation he allegedly suffered. Pl.

Dep. at 189.

In June, 2018, the plaintiff received a performance

evaluation covering the period of January 1, 2017 to December

31, 2017 and was again rated overall “Needs Improvement.” Defs.’

56.1 Stmt. ¶ 112.

III.

A.

The plaintiff’s discrimination, hostile work environment,

and retaliation claims under Section 1981 against the City fail

because his claims are properly brought under Section 1983 and

Ҥ 1981 does not provide a separate private right of action

against state actors.” Duplan v. City of New York, 888 F.3d 612,

621 (2d Cir. 2018) (emphasis added) (dismissing Section 1981

claims against the City of New York). Municipal employees sued

in their official capacity, such as the individual defendants in

this case, are representatives of the state and may not be sued

under Section 1981.

To the extent that the plaintiff is suing the individual

defendants in their individual capacities under Section 1981,

the plaintiff’s claims also fail. In Jett v. Dallas Independent

School District, the Supreme Court held that “the express

‘action at law’ provided by § 1983 for the ‘deprivation of any

rights, privileges, or immunities secured by the Constitution

and laws,’ provides the exclusive federal damages remedy for the

violation of the rights guaranteed by § 1981 when the claim is

pressed against a state actor.” 491 U.S. 701, 735 (1989). The

holding in Jett applies not only to governmental entities, but

also to individuals sued in their individual capacities who are

state actors. See Roddini v. City Univ. of New York, No.

02CV4640, 2003 WL 435981, at *5 (S.D.N.Y. Feb. 21, 2003); accord

Gonzalez v. City of New York, 377 F. Supp. 3d 273, 285 (S.D.N.Y.

2019). Therefore, the plaintiff is barred from asserting claims

under Section 1981 against the City and the individual

defendants.1 The defendants’ motion for summary judgment

dismissing the plaintiff’s claims under Section 1981 is granted.

1 Additionally, the plaintiff abandoned his Section 1981 claims. In his

Opposition, the plaintiff fails to respond to the defendants’ argument that

the plaintiff cannot maintain a Section 1981 claim against the City and the

individual defendants. As a result, the plaintiff has abandoned these claims.

See, e.g., Duarte v. St. Barnabas Hosp., 265 F. Supp. 3d 325, 352–53

B.

The plaintiff asserts claims against the City, the

individual defendants in their official capacity, and the

individual defendants in their individual capacity under Section

1983 for discrimination, hostile work environment, and

retaliation.

i.

Section 1983 provides a cause of action for any person who

has been deprived of a right secured by the Constitution or

federal law under color of state law. 42 U.S.C. § 1983. To

impose Section 1983 liability upon a municipality, a plaintiff

must identify a municipal “policy” or “custom” that caused the

plaintiff's injuries. See Monell v. Dep't of Social Servs., 436

U.S. 658, 694 (1978); see also Bd. of Cnty. Comm'rs v. Brown,

520 U.S. 397, 403; Sorlucco v. N.Y.C. Police Dep't, 971 F.2d

864, 870 (2d Cir. 1992); Bullard v. City of New York, 240 F.

Supp. 2d 292, 299–300 (S.D.N.Y. 2003). The plaintiff must

demonstrate that the municipality was the “moving force” behind

the injuries alleged. Brown, 520 U.S. at 404; Monell, 436 U.S.

at 692. The alleged policy does not need to be contained in an

explicitly adopted rule so long as the unlawful practices of

(S.D.N.Y. 2017) (citation omitted) (“Federal courts may deem a claim

abandoned when a party moves for summary judgment on one ground and the party

opposing summary judgment fails to address the argument in any way.”).

city officials are so “persistent and widespread . . . as to

constitute a custom or usage with the force of law.” Sorlucco,

971 F.2d at 870–71 (internal quotations omitted); see also

Bertuglia v. City of New York, 133 F. Supp. 3d 608, 649

(S.D.N.Y. 2015), aff’d sub nom., Bertuglia v. Schaffler, 672 F.

App'x 96 (2d Cir. 2016); Munoz v. City of New York, No.

04CV1105, 2008 WL 464236, at *3 (S.D.N.Y. Feb. 20, 2008).

The defendants are correct that the plaintiff has failed to

carry his summary judgment burden of demonstrating that the

municipality, as opposed to the individual actors, was the

“moving force” behind the conduct in question. No reasonable

jury could find that there was a municipal policy so persistent

as to constitute a “custom or usage with the force of law.”2

Therefore, the defendants’ motion for summary judgment

dismissing the plaintiff’s claims under Section 1983 against the

City is granted.

ii.

The plaintiff’s claims against the individual defendants in

their official capacities under Section 1983 also fail. For

Section 1983 claims, a suit against a governmental officer in

the officer's official capacity is equivalent to a suit against

2 Additionally, in his opposition, the plaintiff failed to respond to the

defendants’ argument. As a result, the plaintiff has abandoned his Section

1983 claims against the City. See, e.g., Duarte, 265 F. Supp. 3d at 352–53.

that entity of which the officer is an agent. See McMillian v.

Monroe County, 520 U.S. 781, 785 n. 2 (1997); Kentucky v.

Graham, 473 U.S. 159, 165 (1985); DeCarlo v. Fry, 141 F.3d 56,

61 (2d Cir. 1998); see also Grosso v. Town of Clarkstown, No.

94CV7722, 1998 WL 566814, at *11 n. 4 (S.D.N.Y. Sept. 3, 1998).

Thus, the plaintiff’s Section 1983 claims against the individual

defendants in their official capacities are duplicative of the

plaintiff’s Section 1983 claims against the City, and must also

be dismissed because there is no showing at all of liability

under the Monell doctrine. See Lipton v. Cnty. of Orange, 315 F.

Supp. 2d 434, 452 (S.D.N.Y. 2004); Biswas v. City of New York,

973 F. Supp. 2d 504, 540 (S.D.N.Y. 2013). Accordingly, the

defendants’ motion for summary judgment dismissing the

plaintiff’s claims against the individual defendants in their

official capacities under Section 1983 is granted.

iii.

The plaintiff also asserts claims against the individual

defendants in their individual capacities under Section 1983

based on alleged discrimination, hostile work environment, and

retaliation.

1.

The plaintiff claims that the defendants discriminated

against him because of his race and national origin by failing

to promote him to the Property Damage Division Chief position

posted in December, 2014, failing to promote him to the Property

Damage Division Chief position posted in January, 2016, and

failing to promote him to the School Claims Division Chief

position posted in June, 2016.

Discrimination claims alleging a failure to promote under

Section 1983 are evaluated under the burden-shifting framework

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir.

2010) (holding that discrimination claims under Title VII and

Sections 1981 and 1983 are analyzed under the McDonnell Douglas

framework). Initially, the plaintiff has the burden of proving,

by a preponderance of evidence, a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802. The

plaintiff’s prima facie burden is “not onerous.” Howley v. Town

of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (quoting Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981)). “To establish a prima facie case of a discriminatory

failure to promote, a [Section 1983] plaintiff must ordinarily

demonstrate that: (1) [the plaintiff] is a member of a protected

class; (2) [the plaintiff] applied and was qualified for a job

for which the employer was seeking applicants; (3) [the

plaintiff] was rejected for the position; and (4) the position

remained open and the employer continued to seek applicants

having the plaintiff’s qualifications.” Aulicino v. New York

City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009)

(quoting Petrosino v. Bell Atl., 385 F.3d 210, 226 (2d Cir.

2004)). The fourth element can be satisfied by demonstrating

that the position was filled by someone outside of Plaintiff's

protected class. See Butts v. New York City Dep’t of Hous. Pres.

And Dev., No. 00CV6307, 2007 WL 259937, at *10 (S.D.N.Y. Jan.

29, 2007); see also Concepcion v. City of New York, No.

15CV2156, 2016 WL 386099, at *14 (S.D.N.Y. Jan. 29,

2016), aff'd, 693 F. App’x 31 (2d Cir. 2017) (finding that the

plaintiff satisfied the fourth element of a prima facie case

because the positions the plaintiff applied for were filled by a

male candidate and a white candidate, both of whom were outside

of the plaintiff’s protected classes). In sum, the plaintiff

must show that he “was rejected under circumstances which give

rise to an inference of unlawful discrimination.” Aulicino, 580

F.3d at 80.

If the plaintiff demonstrates a prima facie case, the

burden of production shifts to the employer to articulate a

legitimate, clear, specific and non-discriminatory reason for

refusing to promote the employee. See Holt v. KMI–Cont'l, Inc.,

95 F.3d 123, 129 (2d Cir. 1996). The defendants’ burden at this

stage is “one of production, not persuasion; it can involve no

credibility assessment.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142 (2000). Finally, if the defendants

satisfy this burden of production, the plaintiff has the

ultimate burden to prove that the employer’s reason was merely a

pretext for discrimination. See St. Mary's Honor Ctr. v. Hicks,

509 U.S. 502, 515–16 (1993) (quoting Burdine, 450 U.S. at 258);

see also Holt, 95 F.3d at 129. “The plaintiff must produce not

simply ‘some’ evidence, but ‘sufficient evidence to support a

rational finding that the legitimate, non-discriminatory reasons

proffered by the [defendants] were false, and that more likely

than not [discriminatory animus] was the real reason for the

[failure to promote].’” Weinstock v. Columbia Univ., 224 F.3d

33, 42 (2d Cir. 2000) (quoting Van Zant v. KLM Royal Dutch

Airlines, 80 F.3d 708, 714 (2d Cir. 1996)); see also Thelwell v.

City of New York, No. 13CV1260, 2015 WL 4545881, at *12

(S.D.N.Y. July 28, 2015), aff’d, 733 F. App'x 561 (2d Cir.

2018).

a.

The plaintiff complained of three failures to promote in

his amended complaint. The defendants argue that the Court

should dismiss the plaintiff’s first failure to promote claim

relating to the December, 2014 Property Damage Division Chief

position because the defendant was not prepared for his

interview and offered insufficient evidence of discriminatory

animus. In his opposition, the plaintiff fails to respond to

this argument and states only that his two failure to promote

claims, regarding the Property Damage Division Chief position in

January, 2016 and the School Claims Division Chief position in

June, 2016, have merit. As a result, the plaintiff has abandoned

his first failure to promote claim in regard to the December,

2014 Property Damage Division Chief position. See, e.g., Duarte,

265 F. Supp. 3d at 352–53.

b.

With regard to the plaintiff’s two remaining failure to

promote claims, the plaintiff alleges that the individual

defendants discriminated against the plaintiff on the basis of

race and national origin in violation of Section 1983. The

plaintiff, an African American, is a member of a protected

class, and thus has satisfied the first requirement of his prima

facie case under Section 1983. The plaintiff established the

third requirement because he was rejected for both positions.

The plaintiff established the fourth requirement because the

promotions the plaintiff applied for were filled by two white

candidates, who were outside of his protected class.

The burden on a plaintiff to satisfy the second

requirement, that he applied and was qualified for the job, is

quite low. He need only show that he “possesses the basic skills

necessary for performance of the job.” De la Cruz v. New York

City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d

Cir. 1996) (citations and alteration omitted). Being

“‘qualified’ refers to the criteria the employer has specified

for the position.” Thornley v. Penton Publishing, Inc., 104 F.3d

26, 29 (2d Cir. 1997). Absent a showing that the qualifications

were developed in bad faith, “[a] plaintiff is not entitled to

get his or her case before a jury by contending that the demands

of the employer were not reasonably related to the performance

of the job.” Id.; see also Alleyne v. Four Seasons Hotel--New

York, No. 99CV3432, 2001 WL 135770, at *10 (S.D.N.Y. Feb. 15,

2001), aff'd, 25 F. App'x 74 (2d Cir. 2002).

It is undisputed that the plaintiff applied for both jobs.

However, he did not meet the requirements of having four or more

years of experience in investigating and adjusting tort claims

and eighteen months of such experience in a supervisory,

managerial or executive capacity. Méndez Decl. Exs. R, Y. When

the plaintiff applied for the January, 2016 Property Damage

Division Chief position, he had been employed by the OOC for

less than three years. Similarly, he was approximately nine

months short of the four-year requirement when he applied for

the June, 2016 School Claims Division Chief position. The

plaintiff has not provided any evidence that the four-year

qualification for both positions was developed in bad faith.

However, it is also not clear whether all the individuals

who were interviewed met the job requirements. While the

defendants claim that Brusgard and Goldband had the requisite

experience, it is also not apparent whether they each had four

or more years of experience in investigating and adjusting tort

claims and whether eighteen months of such experience was in a

supervisory, managerial, or executive capacity. In any case, the

defendants admit that the OOC’s practice was to interview all

internal candidates regardless of qualifications. Supp. Reilly

Decl. ¶¶ 4-5. Because the OOC did not use the minimum

qualifications as a bar to interview any internal applicant,

construing the facts in the light most favorable to the

plaintiff, the plaintiff has carried his minimal burden of a

prima facie case under McDonnell Douglas.

The defendants have articulated legitimate non-

discriminatory reasons for not promoting the plaintiff; they

state that both Brusgard and Goldband were given the promotions

because they were better qualified and interviewed better than

the plaintiff. The defendants explain that Brusgard had

extensive experience in the Property Damage Division because she

worked in the Division for 19 years from 1988 to 1995 and from

2007 to the time of her selection and had some experience as a

supervisor. She received unanimously high marks from her

interviewers, and Reilly ranked her as the “Number 1” candidate.

In contrast, the plaintiff was employed by the OOC for less than

three years and had no other experience adjusting claims.

Further, his interviewers concluded that he was not committed to

the position; in fact, Reilly believed that the plaintiff had

given one of the worst interviews for the position. The

plaintiff does not dispute that he himself said that the

position was not his “life passion” and that he wished to move

on to other positions after.

Similarly, with respect to the June, 2016 position as

School Claims Division Chief, the defendants point to Goldband’s

extensive supervisory experience in private practice and the

fact that he impressed his interviewers with his preparation and

clear vision for improving the School Claims Division. In

contrast, the plaintiff’s interviewers noted his lack of any

experience working with personal injury claims and his dearth of

knowledge concerning personal injury law.

The plaintiff has failed to offer sufficient evidence that

the defendants’ reasons for promoting Brusgard are pretextual.

The plaintiff has not argued that the reasons given by Reilly

and Cox for hiring Brusgard instead of the plaintiff were false.

The plaintiff has only alleged that Kim told Gonzalez in

February, 2015, nearly a year before the January, 2016, opening,

that Kim wanted to get rid of the “Black guy” in the division

because he was making too much money.3 Kim disputes that he made

the comment about the plaintiff. However, the factual dispute is

not material because Kim’s comment is insufficient to show that

more likely than not, discriminatory bias was the real reason

for the failure to promote the plaintiff.

It is true that “impermissible bias of a single individual

at any stage of the promoting process may taint the ultimate

employment decision . . . so long as the individual shown to

have the impermissible bias played a meaningful role in the

promotion process.” Ferrell v. Leake & Watts Servs., Inc., 83 F.

App'x 342, 346 (2d Cir. 2003) (quoting Bickerstaff v. Vassar

Coll., 196 F.3d 435, 450 (2d Cir. 1999)). In analyzing whether

remarks are probative of discriminatory animus or whether they

are just stray remarks, courts assess “(1) who made the remark,

i.e., a decisionmaker, a supervisor, or a low-level co-worker;

(2) when the remark was made in relation to the employment

decision at issue; (3) the content of the remark, i.e., whether

a reasonable juror could view the remark as discriminatory; and

(4) the context in which the remark was made, i.e., whether it

was related to the decisionmaking process.” Schreiber v.

3 The defendants dismiss Kim’s remark as hearsay. However, Kim’s remark would

not be hearsay as to Kim, who is a defendant in the case. See Fed. R. Evid.

801(d)(2)(A). Moreover, the statement may be a statement of Kim’s then-

existing state of mind and an exception to the rule against admitting

hearsay. See Fed. R. Evid. 803(3).

Worldco, LLC, 324 F. Supp. 2d 512, 519 (S.D.N.Y. 2004)

(collecting cases); Henry v. Wyeth Pharm., Inc., 616 F.3d 134,

149 (2d Cir. 2010).

Kim was part of the three-member panel that interviewed

the plaintiff, but he allegedly made the remark nearly a year

prior to the opening of the January, 2016 position, in a context

separate from the promotion process. The plaintiff has offered

no evidence that the reasons given by Cox and Reilly for

promoting Brusgard for the January, 2016 position were

pretextual, or that they relied on the alleged remark, or were

even aware of it. The comment itself would not be sufficient to

show that more likely than not, discriminatory animus was the

motivating reason for the failure to promote. “While it is true

that the stray remarks of a decision-maker, without more, cannot

prove a claim of employment discrimination, . . . when other

indicia of discrimination are properly presented, the remarks

can no longer be deemed ‘stray,’ and the jury has a right to

conclude that they bear a more ominous significance.” Abdu-

Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir.

2001) (internal quotation marks and citations omitted). In this

case, there are no other indicia of racial discrimination in the

promotion process and the single unrelated comment made almost a

year before the position opened is insufficient to taint the

process. See Benson v. Family Dollar Operations, Inc., 755 F.

App'x 52, 56 (2d Cir. 2018) (finding that a single comment was

insufficient to present a triable issue as to discriminatory

motive). The plaintiff has presented no evidence of any

additional remarks or actions that demonstrated discriminatory

bias. Given the totality of the evidence, no reasonable

factfinder could conclude that the defendants’ observations that

the plaintiff’s lack of preparation, experience, and enthusiasm,

which were supported by the plaintiff’s own admissions of his

lack of interest in the division and passion for the role, were

unworthy of credence.

The plaintiff has also failed to offer sufficient evidence

that the defendants’ reasons for promoting Goldband for the

June, 2016 position were pretextual. Kim was not involved in

interviewing the plaintiff for the June, 2016 position. There is

also no evidence in the record that Kim discussed the

plaintiff’s credentials with Jacobson or Karp before they sent

Kim their recommendation that the position be filled by

Goldband. The plaintiff has failed to provide any evidence that

the objective reasons that Jacobson and Karp provided for not

hiring the plaintiff were false.

Accordingly, the defendants’ motion for summary judgment

dismissing the plaintiff’s Section 1983 failure to promote

claims against the individual defendants is granted.

2.

The plaintiff alleges a hostile work environment claim

pursuant to Section 1983. The plaintiff complains, among other

things, about: (1) having his supervisory responsibilities taken

away by Emilio Gonzalez when he became Division Chief in

February, 2015; (2) receiving an excessive number of Sanitation

Claims to process; (3) receiving two “needs improvement”

evaluations in May, 2017 and June, 2018; (4) receiving a

performance improvement plan in June, 2017; (5) receiving emails

from Brusgard, between December, 2017 and January, 2018,

regarding attendance policies; (6) feeling humiliated because

his coworker told him, in front of his colleagues, that Brusgard

was the new person in charge of the Property Damage Division;

(7) having his requests for a different work station and new

phone set, denied; (8) being given a dirty cubicle that did not

have a regular working table; and (9) feeling humiliated by

Reilly’s instructions to not bother facilities workers.

Hostile work environment claims under Section 1983 are

analyzed using the same standard applied to Title VII hostile

work environment claims. See Lewis v. Roosevelt Island Operating

Corp., 246 F. Supp. 3d 979, 988 n.5 (S.D.N.Y. 2017) (collecting

cases). To establish a prima facie case of a hostile work

environment, a plaintiff must show: (1) discriminatory

harassment that was “sufficiently severe or pervasive to alter

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

working environment,” and (2) that a specific basis exists for

imputing the objectionable conduct to the employer. Perry v.

Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The

plaintiff must show not only that the plaintiff subjectively

perceived the environment to be abusive but also that the

environment was objectively hostile and abusive. See Demoret v.

Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006); Feingold v. New

York, 366 F.3d 138, 150 (2d Cir. 2004).

The first element of the prima facie case must be

established by a showing that “the workplace was so severely

permeated with discriminatory intimidation, ridicule, and insult

that the terms and conditions of [the plaintiff's] employment

were thereby altered.” Alfano v. Costello, 294 F.3d 365, 373 (2d

Cir. 2002). “Isolated incidents typically do not rise to the

level of a hostile work environment unless they are ‘of

sufficient severity’ to ‘alter the terms and conditions of

employment as to create such an environment.’” Demoret, 451 F.3d

at 149 (quoting Patterson v. County of Oneida, 375 F.3d 206, 227

(2d Cir.2004)). Generally, “incidents must be more than

episodic; they must be sufficiently continuous and concerted in

order to be deemed pervasive.” Id. (quoting Alfano, 294 F.3d at

374). “It is axiomatic that the plaintiff also must show that

the hostile conduct occurred because of a protected

characteristic.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir.

2015); see also Thelwell, 2015 WL 4545881, at *9-10.

The plaintiff has not established the first element of a

prima facie case of a hostile work environment because the nine

instances cited above and the plaintiff’s general allegations

that the defendants embarrassed and criticized him are not so

severe as to be abusive. Receiving performance evaluations and

improvement plans, changes in workload and responsibility, and

emails about attendance from Brusgard did not permeate the

plaintiff’s workplace with intimidation and ridicule. See

Demoret, 451 F.3d at 150 (finding that a supervisor’s close

monitoring of plaintiff’s work, mild rudeness to her, failure to

take advantage of all of her abilities, and reassignment of some

of plaintiff's responsibilities to other employees was not so

severe as to be abusive); see also Lucenti v. Potter, 432 F.

Supp. 2d 347, 362 (S.D.N.Y. 2006) (“Allegations of even constant

reprimands and work criticism by themselves are not sufficient

to establish a hostile environment claim.”). In addition, not

receiving a phone set and getting a “dirty” cubicle that needed

a regular working table installed were isolated slights that did

not alter the terms and conditions of the plaintiff’s

employment. Moreover, there is no evidence that any hostile work

environment occurred because of the plaintiff’s age, race, or

national origin. Accordingly, the defendants’ motion for summary

judgment dismissing the plaintiff’s hostile work environment

claims under Section 1983 against the individual defendants is

granted.

3.

The plaintiff brings a claim for retaliation pursuant to

Section 1983. The plaintiff alleges that the defendants

retaliated against him for engaging in three instances of

protected activity: (1) speaking to the Deputy Comptroller for

Public Affairs in August, 2016 and telling her that he was being

discriminated against; (2) filing the Notice of Claim in March,

2017; and (3) bringing this lawsuit. The defendants concede that

the plaintiff engaged in protected activity when he spoke to the

Deputy Comptroller and when he filed his Notice of Claim. The

plaintiff complains that the defendants retaliated against him,

engaging in substantially the same instances of conduct that

formed the plaintiff’s hostile work environment claim.

Federal retaliation claims are also reviewed under the

McDonnell Douglas burden-shifting approach. See Kwan v. Andalex

Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). The plaintiff “must

establish a prima facie case of retaliation by showing

1) participation in a protected activity; 2) the defendant's

knowledge of the protected activity; 3) an adverse employment

action; and 4) a causal connection between the protected

activity and the adverse employment action.” Id. at 844

(internal quotation marks and citation omitted).

The plaintiff’s retaliation claim fails because the

plaintiff concedes that the individual defendants cannot be held

personally liable for the acts of retaliation.4 Mem. Opp. at 13.

Accordingly, the defendants’ motion for summary judgment

dismissing the plaintiff’s retaliation claims under Section 1983

against the individual defendants is granted.

C.

The plaintiff asserts claims against both the City and the

individual defendants under the NYCHRL.

i.

The plaintiff alleges that the City should be held liable

under the NYCHRL for discrimination, hostile work environment,

and retaliation.

1.

The plaintiff alleges that the City discriminated against

him by failing to promote him in violation of the NYCHRL. As

with his Section 1983 claims, the plaintiff alleges that

4 The plaintiff also failed to respond to the defendants’ arguments that

(1) some of the alleged acts of retaliation took place before the plaintiff

contends that he engaged in protected activity; (2) none of the acts

constitute adverse actions; and (3) the defendants had ample legitimate

reasons for issuing the evaluations and performance improvement plan because

the plaintiff’s performance deficiencies were well documented. As a result,

the plaintiff has abandoned his retaliation claim. See, e.g., Duarte, 265 F.

Supp. 3d at 352–53.

discrimination was on the basis of race and national origin. He

also alleges that discrimination occurred on the basis of age.

Courts must analyze NYCHRL claims separately from any

federal and state law claims and should construe the NYCHRL

“liberally for the accomplishment of the uniquely broad and

remedial purposes thereof.” Mihalik v. Credit Agricole Cheuvreux

N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). “This task is

not always uncomplicated, however . . . [because there is] no

specific guidance concerning how the NYCHRL should be ‘construed

liberally’ and independently of state and federal law in its

particular applications.” Chauca v. Abraham, 841 F.3d 86, 87–88

(2d Cir. 2016) (emphasis in original). It is “unclear whether,

and to what extent the McDonnell Douglas burden-shifting

analysis has been modified for NYCHRL claims.” Mihalik, 715 F.3d

at 110 n.8. However, an employer “is entitled to summary

judgment . . . only if the record establishes as a matter of

law that ‘discrimination play[ed] no role’ in its actions.” Id.

The McDonnell Douglas framework is at least a helpful

starting point to determine whether the defendants have shown

that discrimination played no role in the decision at issue. For

the reasons stated above, the plaintiff has raised a prima facie

case of race and national original discrimination. He has also

raised a prima facie case of age discrimination. He satisfies

the first requirement because “the employment provisions of the

City HRL do not have any specific age limitation.” Abdu-Brisson,

239 F.3d at 467 n.3; N.Y. City Admin. Code § 8–107(1). The

plaintiff established the third requirement of his prima facie

case because he was rejected for both positions. The plaintiff

established the fourth requirement of his prima facie case

because the promotions he applied for were filled by people

younger than he was; the plaintiff was born in 1949 and Brusgard

and Goldband were born in 1965 and 1985, respectively. Although

the plaintiff may not have met the experience requirements for

the position as is required for the second requirement to

establish a prima facie case, it is unclear whether the OOC used

the qualifications as a bar to interview any internal applicant.

As discussed above, the defendants have offered legitimate,

nondiscriminatory reasons for hiring two candidates who were

white and younger than the plaintiff, such as their supervisory

experience, preparedness for the interview, and enthusiasm. In

contrast, the plaintiff’s interviewers determined that the

plaintiff was not qualified for the two positions because he did

not interview well, lacked the supervisory experience for the

position, lacked experience for handling property damage and

personal injury claims, and lacked enthusiasm.

The City is also entitled to summary judgment on the

plaintiff’s claims under the NYCHRL for substantially the same

reasons that the Court granted summary judgment dismissing the

plaintiff’s Section 1983 claims against the individual

defendants. It is apparent that discrimination played no role in

the hiring decisions. Kim’s alleged comment concerning the

plaintiff’s race, was made nearly one year before the OOC posted

the January, 2016 position and was not relied on in the decision

to promote Brusgard. Without more, the comment was just a stray

remark that was not probative of discriminatory intent in the

promotion decision. It is also clear from the record that the

plaintiff was not the most qualified candidate for either

position. Furthermore, Kim was not even an interviewer for the

June, 2016 position.

The plaintiff cites two comments by Karp and Kim, which he

interpreted as biased against him because of his age. While the

plaintiff argues that Karp’s remark that they were “going in

another direction” meant that they were looking for younger

candidates, Karp’s comment was neutral on its face; the

plaintiff has provided no evidence linking Karp’s remarks to

animosity towards the plaintiff because of his age. Kim’s

question during the interview for the January, 2016 position,

“[a]fter the Division Chief position, then what?” was also

neutral. The plaintiff admitted that during the interview, he

had said that being a Division Chief was not his life passion

and that he wanted to become Division Chief because it was a

higher position from which he might be able to qualify for

something else. Asking what the “something else” that the

plaintiff wanted to qualify for was a natural follow-up question

that did not have anything to do with the plaintiff’s age. The

three comments that the plaintiff believes show evidence of

discriminatory intent are inadequate, alone or in conjunction

with the plaintiff’s other proffered evidence, to show that

race, national origin, or age discrimination played a role in

the defendants’ decision not to promote the plaintiff.

Accordingly, the defendants’ motion for summary judgment

dismissing the plaintiff’s failure to promote claims under the

NYCHRL against the City is granted.

2.

The plaintiff asserts a claim against the City for hostile

work environment under the NYCHRL. The NYCHRL is intended to be

more protective than state and federal law. See Farrugia v. N.

Shore Univ. Hosp., 820 N.Y.S.2d 718, 724 (Sup. Ct. 2006). The

“severity” and “pervasiveness” of the alleged harassment “are

applicable to consideration of the scope of permissible damages,

but not to the question of underlying liability.” Williams v.

New York City Hous. Auth., 872 N.Y.S.2d 27, 38 (App. Div. 2009)

(citing Farrugia, 820 N.Y.S.2d at 725). “Thus, less egregious

conduct than that required under Title VII may support a hostile

work environment claim under the NYCHRL.” Panzarino v. Deloitte

& Touche LLP, No. 05CV8502, 2009 WL 3539685, at *9 (S.D.N.Y.

Oct. 29, 2009); see also Fincher v. Depository Tr. & Clearing

Corp., 604 F.3d 712, 724 n.10 (2d Cir. 2010).

However, the “broader purposes of the NYCHRL do not connote

an intention that the law operate as a general civility code.”

Zhao v. Time, No. 08CV8872, 2010 WL 3377498, at *23 (S.D.N.Y.

Aug. 24, 2010). Summary judgment is available where the employer

can prove that the alleged conduct does not even represent a

“borderline” violation, but “could only be reasonably

interpreted by a trier of fact as representing no more than

petty slights or trivial inconveniences.” Williams, 872 N.Y.S.2d

at 41; see also Thelwell, 2015 WL 4545881, at *12.

In this case, even under the NYCHRL’s more liberal

standard, the conduct alleged – namely performance evaluations,

changes in workload responsibility, and criticism about the

plaintiff’s attendance — falls short of establishing a hostile

work environment. In addition, not receiving a phone set, having

a smaller cubicle, and being embarrassed that a colleague was

promoted are trivial and isolated incidents that do not give

rise to an inference of discrimination. Accordingly, the

defendants’ motion for summary judgment dismissing the

plaintiff’s hostile work environment claim against the City

under the NYCHRL is granted.

3.

The plaintiff brings claims against the City for

retaliation pursuant to the NYCHRL. As discussed above, the

plaintiff abandoned his retaliation claim by failing to respond

to the defendant’s arguments and conceded that the individual

defendants cannot be held personally liable for the acts of

retaliation. Therefore, the defendants’ motion for summary

judgment dismissing the plaintiff’s hostile work environment

claim against the City under the NYCHRL is granted.

ii.

The plaintiff alleges that the individual defendants should

be held individually liable under the NYCHRL for discrimination,

hostile work environment, and retaliation. The NYCHRL provides

for individual liability on either a direct theory or an “aiding

and abetting” theory. See, e.g., Schanfield v. Sojitz Corp. of

Am., 663 F. Supp. 2d 305, 344 (S.D.N.Y. 2009); Malena v.

Victoria's Secret Direct, LLC, 886 F. Supp. 2d 349, 366-67

(S.D.N.Y. 2012).

To be liable under a direct theory, a defendant must have

participated in the conduct giving rise to a discrimination

claim. See Schanfield, 663 F. Supp. 2d at 344. However, the

plaintiff has not presented sufficient evidence to show that any

of the individual defendants actually participated in unlawful

conduct related to discrimination for failure to promote,

hostile work environment, or retaliation. With regard to the

failure to promote claims, the interviewers provided objective

reasons for hiring Brusgard and Goldband instead of the

plaintiff for the two positions at issue. Kim allegedly made a

racially offensive comment about the plaintiff nearly a year

before the plaintiff applied for the January, 2016 position.

Karp’s comment about going in another direction and Kim’s

question regarding what the plaintiff wanted to do after the

Division Chief position were neutral as to age. Based on the

record, the individual interviewers provided legitimate

objective reasons why Brusgard and Goldband were candidates that

were more qualified for the positions and there is no indication

that Kim’s remark affected the decision not to promote the

plaintiff. As discussed above, none of the actions that the

plaintiff complained of rose to the level of a hostile work

environment. Even under the more liberal standards of the

NYCHRL, the actions that the plaintiff complained of were

insufficient to allege an atmosphere of abuse. Lastly, the

plaintiff himself has conceded that the individual defendants

cannot be held personally liable for the acts of retaliation.

Second, the aiding and abetting theory is not viable

against the individual defendants. “[A]n individual cannot aid

or abet his or her own violation of the Human Rights Law.” Bliss

v. MXK Rest. Corp., 220 F. Supp. 3d 419, 426 (S.D.N.Y. 2016)

(quoting Hardwick v. Auriemma, 983 N.Y.S.2d 509, 513 (App. Div.

2014)). Moreover, “[w]here no violation of the Human Rights Law

by another party has been established . . . an individual

employee cannot be held liable for aiding or abetting such a

violation.” Id. (quoting Strauss v. N.Y. State Dept. of

Education, 805 N.Y.S.2d 704, 709 (App. Div. 2005)). Because the

plaintiff has failed to establish liability under NYCHRL against

the City and against any individual defendant, the plaintiff

cannot establish discrimination, hostile work environment, and

retaliation claims against the individual defendants under the

aider and abettor theory of liability. Accordingly, the

defendants’ motion for summary judgment dismissing the

discrimination, hostile work environment, and retaliation claims

under the NYCHRL against the individual defendants is granted.

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed, the arguments

are either moot or without merit. For the reasons stated above,

the defendants’ motion for summary judgment dismissing this

action is granted. The Clerk of the Court is directed to enter

judgment dismissing the complaint and closing this case. The

Clerk is also directed to close all pending motions.

SO ORDERED.

Dated: New York, New York

January 21, 2020

_____/s/ John G. Koeltl_______

John G. Koeltl

United States District Judge