# Pierre v. City Of New York

> District Court, S.D. New York · January 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10320146

## Case

- **Court:** District Court, S.D. New York
- **Decided:** January 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10320146

## How later opinions describe it (automated extraction)

- 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
- 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
- holding that discrimination claims under Title VII and Sections 1981 and 1983 are analyzed under the McDonnell Douglas framework
- holding that discrimination claims under Title VII and Sections 1981 and 1983 are analyzed under the McDonnell Douglas framework

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10320146. Public record. Not legal advice.