Buchanan v. Jonathan Darche

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DANE BUCHANAN, JAMES

CHRISTOPHER DUERR, NICOLE

NAPOLITANO, and WINSOME THELWELL, | 21-Cv-660 (SHS)

Plaintiffs,

| OPINION & ORDER

v.

THE CITY OF NEW YORK, THE NEW YORK }

CITY CIVILIAN COMPLAINT REVIEW

BOARD, and JONATHAN DARCHE, in his

Official and Individual Capacity,

Defendants. |

nnn a ener neared

SIDNEY H. STEIN, U.S. District Judge.

This case involves four former employees of the New York City Civilian Complaint

Review Board (“CCRB”) who claim that they faced professional retaliation for engaging

in constitutionally protected speech. Plaintiffs Dane Buchanan, James Christopher

Duerr, Nicole Napolitano, and Winsome Thelwell bring this action pursuant to 42

U.S.C. § 1983, alleging official conduct in violation of the First Amendment. Plaintiffs

also bring comparable claims under Article I, Section 8 of the New York State

Constitution, as well as retaliation claims under the New York State Human Rights Law

(“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), Plaintiffs sue the

City of New York, the CCRB, and CCRB Executive Director Jonathan Darche, who

plaintiffs allege spearheaded a “campaign of retaliation and harassment” culminating

in their November 2020 termination. (Compl. J 5, ECF No. 7.)

Defendants have now moved to dismiss the complaint in its entirety pursuant to

Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, defendants’ motion is granted in

part and denied in part.!

I. BACKGROUND

The CCRB, an independent agency of the New York City government, is tasked

with the oversight and investigation of alleged New York City Police Department

(“NYPD”) officer misconduct. The CCRB and its staff “receive, hear, make findings, and

1 For purposes of this Rule 12(b}(6) motion, the Court accepts the factual allegations in the complaint as

true and draws all reasonable inferences in plaintiffs’ favor. See, e.g., Ruotolo v. City of New York, 514 F.3d

184, 188 (2d Cir, 2008); Qasem v. Toro, 737 F, Supp. 2d 147, 150 (S.D.N.Y. 2010).

recommend action on complaints” against NYPD officers. (Compl. { 17.) The Board

itself consists of 15 political appointees,’ and the agency employs roughly 200

investigators and staff. (Id. [J 18-19.) In addition to investigating police misconduct, the

CCRB holds monthly open meetings and releases periodic reports on its activities and

recommendations. (Id. Jf 20-21).

At the time of their terminations, plaintiffs Thelwell and Duerr served as the

CCRB’s Co-Chiefs of Investigations. Plaintiff Buchanan served as Deputy Chief of

Investigations, and plaintiff Napolitano served as Director of Policy and Advocacy. (Id.

9-12.) Defendant Darche has been the agency’s Executive Director since 2017. Ud. □

15.)

This case centers on an increasingly bitter feud between plaintiffs and Darche over

the CCRB’s direction and performance. (Id. {[ 5.) In plaintiffs’ view, the CCRB had failed

to fulfill its mandate to be “independent,” acting instead with undue deference to the

NYPD and the mayor's office. Darche, in particular, allegedly “skewed CCRB policies

with a view toward currying favor with the NYPD and/or the Mayor's Office, for his

own personal and professional gain.” (id. {| 27.) On several occasions, plaintiffs claim

they voiced their disagreements with CCRB policies and practices, only to face

harassment, retaliation, and ultimately termination. Plaintiffs focus on five instances of

alleged protected speech, beginning in 2019 and continuing until their November 2020

firing, in which they raised their concerns to Darche and others within the CCRB.

First, in July 2019, Buchanan co-authored a memorandum with Olas Carayannis,

CCRB Deputy Chief of Special Operations,’ after consulting with Duerr and Thelwell.

The document criticized a proposed agency policy that would have limited the ability

of CCRB investigators to obtain footage from the cameras NYPD officers wear while on

duty. (Id. 32a.) After receiving the memorandum, Darche called Buchanan, “enraged

by the criticisms, and shouted: ‘Who do I need to fire, Olas and you, or Olas, you, Chris

[Duerr] and Winsome [Thelwell]?’” (id. {| 32b.)

Plaintiffs continued to oppose the perceived lack of access to the footage, known as

body-worn camera, or BWC, footage. In June 2020—as widespread protests following

the death of George Floyd renewed public focus on police misconduct and

accountability —-Buchanan and Carayannis, again with input from Duerr and Thelwell,

prepared “an unsolicited memo to all senior staff” addressing the issue. (Id. J 32c.) The

memorandum highlighted a “tremendous backlog in BWC requests,” and “urge[d] the

2 Five Board members are appointed by the NYC City Council, five are appointed by the mayor, three are

appointed by the police commissioner, one is appointed by the public advocate, and the chair is

appointed jointly by the mayor and the speaker of the City Council, (Jd. J 18.)

3 Carayannis is a non-party to this action.

Agency to seize this moment to do everything in its power to obtain unmediated direct

access to BWC footage.” (id.)

This document soon found its way into the press. Darche held Buchanan and

Carayannis responsible for the leak, and “repeatedly threatened that their roles within

the CCRB would suffer as a result.” (Id. { 32d.) Darche then instructed Duerr and

Thelwell to “restructure Buchanan’s and Carayannis’s jobs so as to functionally demote

them,” but they refused to do so. (Ud. { 32e.)

Around the same time, Thelwell sent Darche an email criticizing the lack of access

to the BWC tapes and a resulting backlog of cases. The email charged that the CCRB

had failed to “equally and ethically serve the citizens of this City,” and described the

backlog as “outrageous and offensive.” Thelwell further protested that “so far, all I have

received for speaking out is anger and retaliation,” citing her recent exclusion from

docket review meetings she had previously attended. (Id. {[ 33a.)

Soon thereafter, Buchanan, Duerr, Thelwell, and Carayannis, with input from

Napolitano, circulated another unsolicited memorandum “condemning an agreement”

with the NYPD officers’ union that allowed officers to turn off their video feeds during

remote interviews with CCRB investigators. (Id. 35a.) Plaintiffs wrote that the

agreement prevented investigators from assessing nonverbal clues, undermining their

ability to conduct “complete, thorough and impartial” investigations. The

memorandum concluded: “We cannot take a step backward when the city demands we

march forward.” (Id.)

At 9 p.m. the same day, Darche and CCRB General Counsel Matthew Kadushin

contacted Duerr to express anger at the memorandum. Darche stated his belief that

plaintiffs were attempting to have him removed as Executive Director, that he “always

comes out on top,” and that he was “done making concessions” to Thelwell. Kadushin

stated that they “had a plan on how to deal with her.” (/d. {[ 35b.)

Finally, in July, Napolitano prepared a memorandum addressed to Darche and

CCRB Board Chair Fred Davie on instances in which panels of the Board overturned the

recommendations of investigative staff, known as “flips.” Napolitano argued that the

politics of the particular Board members on each panel, rather than the merits of the

complaint, determined which recommendations were flipped. (Id. [ 34a.) Buchanan,

Duerr, and Thelwell had also raised repeated concerns about the frequency of flips. □□□□

{ 35b.) After Napolitano submitted her memorandum, Kadushin contacted her to tell

her that the document was a “problem” and admonished her that “[nJobody told you to

write that memo .... [T}That’s not what you were asked to do,“ (Id.)

In addition to these incidents, plaintiffs claim that Darche created a “hostile work

environment ... in which [employees] were constantly subjected to intimidation,

ridicule, insults, and threats.” (Id. J 37.) Plaintiffs allege that they opposed those

practices and that they faced retaliation as a result. They describe four incidents of

alleged misconduct.

First, in 2019, Darche “verbally attacked and threatened” Duerr and Thelwell when

they “expressed a difference of opinion” at a staff meeting on a CCRB policy relating to

911 incidents. (Id. J 41.) Darche responded by “telling them they were both fired,

effective immediately.” When Thelwell, a black woman, did not leave the room, Darche

told her that “not only was she fired but that he would call 911 on her.” (id.) He did not

similarly threaten Duerr, a white male. Darche subsequently rescinded their

terminations. (Id.) Next, in early 2020, Darche told Thelwell—who is Jamaican-—-that he

had met someone from a Jamaican police oversight agency and that she should consider

getting a job there. (Id. { 42.)

Third, during the COVID-19 pandemic, the CCRB continued to have three Black

clerical employees work in the office, although when “White Investigators asked to

return to the office, Darche said it was not safe.” (Id. [ 40.) When Thelwell raised the

inconsistency, “noting the disparate impact COVID has on communities of color,

Darche and Kadushin told her it was none of her business.” (/d.)

Finally, plaintiffs argue that they faced retaliation for “openly supportling] a

complaint” by Carayannis, who alleged discrimination based on Carayannis’s

transgender/gender-nonconforming status. (Id. J 39.) In August 2020, Carayannis filed

an internal complaint claiming that Darche “questioned Carayannis’s professionalism

and participation at certain events because of Carayannis’s appearance.” (Id.) Plaintiffs

then attempted to attend a meeting convened to address the complaint, but they were

refused entrance by the General Counsel, Kadushin. Carayannis subsequently filed a

complaint with the Equal Employment Opportunity Commission (“EEOC”), naming

plaintiffs as potential witnesses. (Id.)

On November 12, 2020, all four plaintiffs were informed that they would be

terminated effective two weeks later. The CCRB then moved their termination date to

December 27. (Id. [ 43.) Almost immediately after learning of their firing, plaintiffs were

“disconnected from access to the Agency server,” including email, and had “no

4 Napolitano, who previously worked at the NYPD Office of the Inspector General (“OIG-NYPD”), claims

that she also faced pushback for “challeng[ing] Darche and the CCRB to be more transparent with the

OIG-NYPD.” (fd. 1 31.)

opportunity to effectively transition” their ongoing work product. (Id. { 45.) Plaintiffs

allege that their replacements have “significantly less experience with CCRB

operations,” and “barely any experience in a managerial or supervisory role.” (Id. { 46.)

One month after being terminated, plaintiffs brought this litigation against Darche,

the CCRB, and the City of New York. Plaintiffs first allege, pursuant to 42 U.S.C. § 1983,

that defendants’ actions violated plaintiffs’ “constitutional and lawful rights to speak

out on matters of public concern” under the First and Fourteenth Amendments to the

U.S. Constitution (Compl. J 52), as well as their parallel rights under the New York

State Constitution, see N.Y. Const. art. I, § 8. Plaintiffs also bring causes of action

pursuant to the NYSHRL, N.Y. Exec. Law §§ 290 et seq., and the NYCHRL, N.Y.C.

Admin. Code §§ 8-101 et seq., alleging unlawful retaliation based on plaintiffs’

opposition to discriminatory CCRB practices. (Compl. {{ 66, 69.)

II. Discussion

As noted above, defendants now move to dismiss the complaint pursuant to Rule

12(b)(6), alleging that plaintiffs have failed to state a valid claim to relief. Defendants

contend that: (1) plaintiffs lack First Amendment protection because they spoke solely

as public employees in furtherance of their official duties, and not as private citizens on

matters of public concern; (2) plaintiffs’ claims under the New York State Constitution

are superfluous; (3) plaintiffs’ NYSHRL and NYCHRL claims fail to allege any

“protected activity” for which they faced retaliation; and (4) all plaintiffs’ claims fail to

state a causal link between their conduct and the alleged retaliation.

A. Legal Standard Governing Motions to Dismiss Pursuant to Rule 12(b)(6)

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,”

Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S, 544,

570 (2007)). Though this standard requires more than “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements,” id., it “does

not need detailed factual allegations,” nor does it “impose a probability requirement at

the pleading stage.” Twombly, 550 U.S. at 555-56. Instead, a complaint need only “raise a

reasonable expectation that discovery will reveal evidence” of unlawful conduct. Id. at

545.

B. Defendant CCRB Is Not a Suable Entity

As an initial matter, defendants move to dismiss the CCRB from this action. The

New York City Charter provides that “all actions and proceedings for the recovery of

penalties for the violation of any law shall be brought in the name of the city of New

York and not in that of any agency, except where otherwise provided by law.” N.Y.C.

Charter § 396. Plaintiffs do not argue that any other provision allows the CCRB to face

suit here. The CCRB is accordingly dismissed as a defendant.

C. Plaintiffs Have Alleged Official Conduct Violating the First Amendment

1. Legal Standard Governing First Amendment Retaliation Claims

It is well-established that public employees “do not surrender all their First

Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417

(2006). At the same time, the U.S. Supreme Court has recognized the “common sense

realization that government offices could not function if every employment decision

became a constitutional matter.” Connick v. Myers, 461 U.S. 138, 143 (1983). Accordingly,

a court facing a First Amendment employment retaliation claim must “arrive at a

balance between the interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its employees.” Pickering v. Bd. of

Ed. of Twp. High Sch. Dist, 205, Will Cty., Illinois, 391 U.S. 563, 568 (1968).

To strike this balance, the Court “conducts a two-step inquiry to determine whether

a public employee’s speech is protected.” Matthews v. City of New York, 779 F.3d 167, 172

(2d Cir. 2015). First, the Court determines “whether the employee spoke as a citizen on

a matter of public concern.” Id. (quoting Garcetti, 547 U.S. at 418). If the employee “did

not speak as a citizen on a matter of public concern, the inquiry ends—the speech was

not constitutionally protected.” Alvarez v. Staple, 345 F. Supp. 3d 320, 329 (S.D.N.Y.

2018); see Weintraub v. Bad. of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 201

(2d Cir. 2010). Otherwise, the Court proceeds to the inquiry’s second step, known as the

“Pickering analysis.” See Pickering, 391 U.S. at 568; see also Matthews, 779 F.3d at 172.

Here, the Court evaluates whether the government “had an adequate justification for

treating the employee differently from any other member of the public based on the

government’s needs as an employer.” Garcetti, 547 U.S. at 4185

If an employee establishes that her speech was constitutionally protected, she must

then demonstrate that “[1] the defendant took an adverse action against [her]; and [2]

there was a causal connection between this adverse action and the protected speech” in

order to prevail on her First Amendment claim. Cox v. Warwick Valley Cent. Sch, Dist.,

654 F.3d 267, 272 (2d Cir. 2011).

5 The Pickering analysis “demands a fact-sensitive inquiry generally unsuited for resolution on a motion to

dismiss,” Sugar v. Greenburgh Eleven Union Free Sch. Dist., No. 18-Cv-67 (VB), 2018 WL 6830865, at *7

(S.D.N.Y. Dec. 28, 2018) (quotation omitted), and defendants do not press the isstie at this stage.

2, Plaintiffs Have Alleged That They Spoke as Citizens on Matters of Public

Concern

Defendants do not contest that plaintiffs’ speech pertained to matters of public

concern. Nor could they, as the U.S. Court of Appeals for the Second Circuit has

affirmed that “[e]xposure of official misconduct, especially within the police

department, is generally of great consequence to the public.” Jackler v. Byrne, 658 F.3d

225, 236 (2d Cir. 2011) (quoting Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir.

2001)); see also Garcetti, 547 U.S. at 425 (“[G]overnmental . . . misconduct is a matter of

considerable significance.”). Instead, defendants maintain that plaintiffs, in each of their

cited incidents, spoke not as citizens but solely as CCRB employees, and that they thus

lack First Amendment protection as a matter of law.

To determine whether a public employee spoke as a citizen, the Court asks two

questions: “(A) did the speech fall outside of the employee's ‘official responsibilities,’

and (B) does a civilian analogue exist?” Matthews, 779 F.3d at 173 (citing Weintraub, 593

F.3d at 201). Within this inquiry, “[a]Ithough the presence or lack of a civilian analogue

may be of some help in determining whether one spoke as a citizen, ‘[t]he critical

question ... is whether the speech at issue is itself ordinarily within the scope of an

employee's duties.’” Montero v. Cily of Yonkers, New York, 890 F.3d 386, 397-98 (2d Cir.

2018) (quoting Lane v. Franks, 573 U.S. 228, 240 (2014)).

“TCjonducting these inquiries sometimes has proved difficult,” Garcetti, 547 US. at

418, due to “the enormous variety of fact situations in which critical statements by...

public employees may be thought by their superiors . . . to furnish grounds for

dismissal,” Pickering, 391 U.S, at 568. Courts have thus employed a “practical”

approach, one focused on a plaintiff's “actual, functional job responsibilities.” Matthews,

779 ¥.3d at 173-74 (quoting Garcetti, 547 U.S. at 424). As a result, “[t]he inquiry into

whether a public employee is speaking pursuant to her official duties is not susceptible

to a brightline rule. Courts must examine the nature of the plaintiff's job

responsibilities, the nature of the speech, and the relationship between the two.” Ross 2.

Breslin, 693 F.3d 300, 306 (2d Cir, 2012).

As one might expect, “navigating the shoals” of this distinction “has proven to be

tricky business, and particularly so in the context of a motion to dismiss, because the

inquiry is so highly fact intensive and context specific.” Schultz v. Cty. of Suffolk, No. 19-

Cv-0925, 2020 WL 7699944, at *6 (E.D.N.Y. Sept. 4, 2020), report and recommendation

adopted, 2020 WL 7041090 (E.D.N.Y. Nov. 30, 2020) (quotation omitted). Accordingly,

district courts frequently deny as premature pre-discovery motions to dismiss on the

grounds that the plaintiff spoke as an employee. See, e.g., Schultz, 2020 WL 7699944, at

*6; Brant v. N.Y.C. Health & Hosps. Corp., 2018 U.S. Dist. LEXIS 5428, at *10 (S.D.N.Y. Jan.

10, 2018) (“Without the benefit of a more complete record, the Court cannot hold, as a

□ 7

matter of law, that plaintiff spoke as an employee rather than as a citizen.”); Brown v.

Off. of State Comptroller, 211 F. Supp. 3d 455, 466 (D. Conn. 2016) (holding that “due to

inherently factual nature of the inquiry,” a determination was “premature at the motion

to dismiss stage”); Hagan v. City of New York, 39 F. Supp. 3d 481, 513 (S.D.N.Y. 2014)

(“Defendants are not entitled to dismissal of this portion of [plaintiff's] claim at this.

early stage.”).

The facts alleged here demonstrate the impropriety of resolving this situation-

specific analysis before a record may be developed. As limned above, plaintiffs allege

that they prepared a series of unsolicited memoranda and emails addressed to

Executive Director Darche, Board Chair Fred Davie, and other CCRB senior leadership.

(See Compl. {{[ 31-36.) Plaintiffs’ statements— which challenged high-level CCRB

policies and practices relating to BWC footage, CCRB complaint backlogs, Board-level

decision-making, officer interview procedures, and NYPD-OIG relations—clearly

pertained to matters of public concern. See Jackler, 658 F.3d at 236. Plaintiffs further

represent that their input on these policies fell “outside their official job duties and

responsibilities,” and that they instead spoke “as citizens of New York, [standing] with

the public in demanding greater accountability and transparency.” (ld. 1 4, 29.) Cf

Matthews, 779 F.3d at 174 (“[W]hen a public employee whose duties do not involve

formulating, implementing, or providing feedback on a policy that implicates a matter

of public concern engages in speech concerning that policy, and does so in a manner in

which ordinary citizens would be expected to engage, he or she speaks as a citizen.”).

Moreover, plaintiffs allege a civilian analogue, noting that the CCRB holds monthly

public meetings, releases frequent reports, and indeed exists to receive and investigate

complaints from the public. (Compl. {¥ 17, 20-22.) Darche, in particular, “is a point of

contact for any individual who enquires about the CCRB’s practices,” and he “speaks

directly to members of the public, fields phone calls from the public, and responds to

email inquiries.” (Id. 22.) A strong “indicium that speech by a public employee has a

civilian analogue is that the employee's speech was to ‘an independent state agency’

responsible for entertaining complaints by ‘any citizen in a democratic society

regardless of his status as a public employee.” Jackler, 658 F.3d at 241 (quoting

Weintraub, 593 F.3d at 204 ).

On the face of the complaint, then, plaintiffs have plausibly alleged speech

protected by the First Amendment and raised a “reasonable expectation that discovery

will reveal evidence” of wrongdoing. Twombly, 550 U.S. at 555-56. The critical question

thus becomes plaintiffs’ functional, day-to-day job responsibilities, and whether they

spoke in furtherance of those duties. See Matthews, 779 F.3d at 173-74. However,

“TbJased only on the pleadings, the Court has no details about the nature of plaintiff[s’]

actual job description, [their] ordinary reporting requirements to supervisors, and other

facts that would illuminate the scope of plaintiff[s’] official job responsibilities.” Brant, □

2018 U.S. Dist. LEXIS 5428, at *8. Accordingly, the court is ill-equipped at this stage to

“examine the nature of” those responsibilities and their relationship to the speech

alleged. Ross, 693 F.3d at 306. Of course, developing these detailed factual supports for

the parties’ claims is precisely the role discovery is designed to serve. See Fed. R. Civ. P.

26(b)(1).

The Second Circuit's rulings in Matthews are illustrative. There, a police officer

claimed he was fired for complaining to commanding officers about a traffic-stop quota

system. After the district court granted a motion to dismiss Matthews’ complaint on the

grounds that he spoke in his official capacity, a panel of the Second Circuit reversed. See

Matthews v. City of New York, 488 F. App'x 532, 533 (2d Cir. 2012). Citing the fact-based

nature of the inquiry, the panel held that “[t]he record in this case is not yet sufficiently

developed ... to determine as a matter of law whether [defendant] spoke pursuant to

his official duties when he voiced the complaints made here in the manner in which he

voiced them.” Id.

When the case came back before the Second Circuit after discovery, the panel

conducted a close analysis of the developed record in determining that Matthews spoke

as a citizen, not a public employee, when he opposed the quota policy. Matthews, 779

F.3d at 176. The panel's decision rested on its conclusion, after review of the NYPD

Patrol Guide and various depositions, that “Matthews’s actual, functional job

responsibilities did not include reporting his opinions on precinct-wide quota systems

to the Precinct commanders.” Id. at 174. It is precisely this practical, fact-based inquiry

that cannot be conducted on the pleadings alone.

In response, defendants here lean heavily on each of the four plaintiffs’ “high-

ranking” status within the CCRB, which allegedly proves that their policy-oriented

speech was “clearly pursuant to their official duties.” (Defs.” Mot. at 8 (quoting Anemone

v. Metro. Transp. Auth., 629 F.3d 97, 116 (2d Cir. 2011))}.) However, nowhere do plaintiffs

concede that their day-to-day work involved high-level policy formation and

implementation, let alone the formulation and implementation of the specific policies at

issue here. Instead, defendants’ deduction appears to be drawn from plaintiffs’ job titles

alone.’ This inference may be borne out in discovery, but dismissing the complaint

based on formal titles alone would fly in the face of the functional approach required by

precedent.

Indeed, the Supreme Court has cautioned that “[f]ormal job descriptions often bear

little resemblance to the duties an employee actually is expected to perform, and the

listing of a given task in an employee's written job description is neither necessary nor

6 As noted above, at the time of their terminations, plaintiffs Thelwell and Duerr served as the CCRB’s

Co-Chiefs of Investigations. Plaintiff Buchanan served as Deputy Chief of Investigations, and plaintiff

Napolitano served as Director of Policy and Advocacy. (Compl. 9-12.)

sufficient to demonstrate that conducting the task is within the scope of the employee's

‘professional duties.” Garcetti, 547 U.S. at 424-25. The relationship between an

employee's job title and her “actual, functional job responsibilities,” Matthews, 779 F.3d

at 173-74, is only more attenuated. Were it otherwise, “employers [could] restrict

employees’ rights by creating excessively broad job descriptions.” Garcetti, 547 U.S, at

425. Accordingly, defendants cannot use these titles at the motion-to-dismiss stage to

defeat plaintiffs’ well-pled complaint.

3. Plaintiffs Allege a Causal Link Between Their Protected Speech and Their

Termination

Having alleged that they engaged in protected speech, plaintiffs must also state a

claim that “the defendant took an adverse action against [them],” and that “there was a

causal connection between this adverse action and the protected speech.” Cox, 654 F.3d

at 272. There is no question that plaintiffs’ November 2020 terminations constituted

adverse actions. See, e.g., Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225-26 (2d Cir.

2006). Instead, defendants contend that plaintiffs have failed to adduce any causal

connection between those internal complaints and their subsequent firings. (Defs.” Mot.

at 12-13.)

In order to plead a causal connection, plaintiffs “must aver some tangible proof

demonstrating that their protected speech animated [defendants’] decision” to

terminate their employment. Washington v. Cty. of Rockland, 373 F.3d 310, 321 (2d Cir.

2004) (quotation omitted). This burden may be met “(1) indirectly, by showing that the

protected activity was followed closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow employees who engaged

in similar conduct; or (2) directly, through evidence of retaliatory animus directed

against the plaintiff by the defendant.” Gordon v. New York City Bd. of Educ,, 232 F.3d

111, 117 (2d Cir. 2000); see Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir, 2015),

Plaintiffs have easily met this burden, as the complaint alleges both direct and

indirect evidence of causation. Indeed, contrary to defendants’ contention that plaintiffs

“do not proffer any factual allegations demonstrating that their internal complaints

were the cause of their terminations” (Defs.’ Mot. at 12), the facts in the complaint give

rise to a strong inference of retaliatory animus.

First, in 2019, after Buchanan and Carayannis criticized the agency’s proposed BWC

policy, Darche called Buchanan, “enraged by the criticisms, and shouted: “Who do I

need to fire, Olas and you, or Olas, you, Chris [Duerr] and Winsome [Thelwell]?’”

(Compl. {[ 32b.) Next, in July 2020, after Buchanan and Carayannis’s subsequent memo

was leaked to the press, Darche “repeatedly threatened that their roles within the CCRB

would suffer as a result” and instructed Duerr and Thelwell to “restructure Buchanan's

and Carayannis’s jobs so as to functionally demote them.” (Id. {[ 32d-e.)

10

That same month, Duerr, Buchanan, and Thelwell circulated a memorandum

criticizing a CCRB agreement with the NYPD officers’ union. Late that evening, Darche

and General Counsel Kadushin called Duerr to express their anger. Darche warned that

he “always comes out on top,” and remarked that he was “done making concessions” to

Thelwell; Kadushin added that they “had a plan on how to deal with her.” (/d. {| 35b.)

Finally, when Napolitano submitted a memorandum on the pattern of CCRB Board

“flips,” Kadushin told her the document was a “problem” and admonished her that

“Injobody told you to write that memo.” (Id. ‘[ 34a.)

It is hard to imagine evidence of retaliatory animus more direct than Darche’s

repeated insistence, in no uncertain terms, that he intended to terminate or demote

plaintiffs for their speech. Indeed, such clear statements of retaliatory intent are

unusual, contrasting with the more subtle innuendos that courts generally find to

constitute evidence of animus. Cf, e.g., Mandell v. Cnty. of Suffolk, 316 F.3d 368, 383 (2d

Cir, 2003) (finding direct evidence of retaliatory animus in supervisor’s statement that

the plaintiff “would have to learn to keep his mouth shut”); White v. Dep’t of Corr. Servs.,

814 F. Supp. 2d 374, 390 (S.D.N.Y. 2011) (finding evidence of animus in employer's

statement that he “did not know what was wrong with [plaintiff]” after she engaged in

protected speech).

Moreover, the facts surrounding plaintiffs’ termination provide additional

circumstantial evidence of retaliation. Plaintiffs were provided no prior notice of their

termination, and they were disconnected from the CCRB server, including email, almost

immediately after they learned of their firing. (Compl {ff 44-45.) All four plaintiffs □

each of whom faced direct reprimand during the summer of 2020 for engaging in

similar forms of speech on similar topics— were fired on the same day. (Id. { 43.)

Finally, plaintiffs were terminated only approximately four months after the core

incidents underpinning their First Amendment claims.

Defendants contend that this four-month time lapse is too protracted to

demonstrate a causal link. However, it is only “[w]hen a party relies on the mere

temporal proximity between an employer's knowledge of protected activity and an

adverse employment action ... that the temporal proximity must be very close.”

Raymond v. City of New York, 317 F. Supp. 3d 746, 773-74 (S.D.N.Y. 2018) (emphasis

added) (quoting Payson v. Bd. of Educ. of Mount Pleasant Cottage Sch., USFD, No, 14-Cv-

09696, 2017 WL 4221455, at “13 (S.D.N.Y. Sept. 20, 2017); see Mandell, 316 F.3d at 384.

But here, that temporal proximity combines with numerous direct and circumstantial

indicia of a causal link between plaintiffs’ protected speech and their subsequent

terminations. See White, 814 F. Supp. 2d at 390-91 (“The direct evidence of retaliatory

animus adduced by the plaintiff, as well as the temporal proximity between the union

complaint and the notice of discipline, are sufficient ... with respect to the causal

11

connection element{.]”). Accordingly, plaintiffs have pled a viable First Amendment

retaliation claim for purposes of this Rule 12(b)(6) motion.

4, Defendant Darche Is Not Entitled to Qualified Immunity at This Stage of

the Proceedings

Defendants next urge that even if plaintiffs allege a valid First Amendment claim,

Darche, as an individual defendant, is entitled to qualified immunity. “Qualified

immunity protects government officials from civil damages liability ‘insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020)

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “[W]hen an official raises

qualified immunity as a defense, the court must consider whether: ‘(1) . . . the official

violated a statutory or constitutional right, and (2)... the right was clearly established

at the time of the challenged conduct.” Id. (quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167

(2d Cir, 2016).

In defining a “clearly established” right, “the focus is ‘whether it would be clear to a

reasonable [official] that his conduct was unlawful in the situation he confronted.” Id.

(quoting Saucier v. Katz, 533 U.S, 194, 202 (2001)). This inquiry does not “require a case

directly on point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Qualified immunity, however, “is an affirmative defense on which the defendant

has the burden of proof.” Outlaw v. City of Hartford, 884 F.3d 351, 367 (2d Cir. 2018). And

plaintiffs, “in order to state a claim of constitutional violation, need not plead facts

showing the absence of such a defense.” Castro v. United States, 34 F.3d 106, 111 (2d Cir.

1994} (emphasis added). Thus, “as a general rule, ‘the defense of qualified immunity

cannot support the grant of a [Rule] 12(b)(6) motion.” Chamberlain v. City of White

Plains, 960 F.3d 100, 110 (2d Cir. 2020) (quoting Green v. Maraio, 722 F.2d 1013, 1018 (2d

Cir. 1983)). For such a motion to succeed, “[nJot only must the facts supporting the

defense appear on the face of the complaint”; in addition, “the plaintiff is entitled to all

reasonable inferences from the facts alleged, not only those that support his claim, but

also those that defeat the immunity defense.” McKenna v. Wright, 386 F.3d 432, 436 2d

Cir. 2004). “Put another way, advancing qualified immunity as grounds for a motion to

dismiss is almost always a procedural mismatch.” Chamberlain, 960 F.3d at 111.

Defendants “do not clear this high bar.” Id. On the contrary, Darche’s qualified-

immunity defense hinges on the same disputed issues of fact discussed in depth above.

Indeed, defendants concede that, under Second Circuit precedent, when a public

employee “whose duties do not involve formulating, implementing, or providing

feedback on a policy that implicates a matter of public concern engages in speech

concerning that policy, and does so in a manner in which ordinary citizens would be

12

expected to engage,” she speaks as a citizen. Matthews, 779 F.3d at 174. Defendants

argue, however, that no clearly established law holds “that high-ranking employees

who do provide feedback on policy issues as part of their job duties” speak as citizens.

(Defs.’ Mot. at 15.)

This argument begs the precise question presented here, and merely repackages

defendants’ same contention, rejected above, that plaintiffs possess “high-ranking” job

titles. Plaintiffs, again, do not concede that they were high-ranking employees whose

job duties included “formulating, implementing, or providing feedback” on the policies

they challenged. Instead, plaintiffs allege, unsurprisingly, that their memoranda and

emails were not in furtherance of their professional responsibilities. (Compl. J 29.) It is

this inquiry into “the nature of the plaintiff[s’] job responsibilities, the nature of the

speech, and the relationship between the two,” Ross, 693 F.3d at 306, for which

discovery is needed. So too will Darche’s entitlement to qualified immunity hinge on

those same contested facts.

5. Plaintiffs Fail to State a Monell Claim Against the City of New York

Defendants next move to dismiss plaintiffs’ First Amendment claim against the City

of New York. In order to establish municipal liability under 42 U.S.C. § 1983—known as

a Monell claim—a plaintiff must demonstrate “(1) a municipal policy or custom that (2)

causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.”

Agosto v. New York City Dep't of Educ., 982 F.3d 86, 97 (2d Cir. 2020); see Monell v. Dep't of

Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). Monell “expressly prohibits

respondent superior liability for cities,” id. (citing Monell, 436 U.S. at 691), so a plaintiff

must “demonstrate that, through its deliberate conduct, the municipality was the

‘moving force’ behind the injury alleged.” Bd. of Cty. Comm'rs of Bryan Cty., OKL v.

Brown, 520 U.S. 397, 404 (1997) (emphasis in original).

A “policy or custom,” for purposes of Monell liability, may be shown through “the

decisions of a government's lawmakers, the acts of its policymaking officials, and

practices so persistent and widespread as to practically have the force of law.” Connick

Thompson, 563 U.S. 51, 61 (2011). The Second Circuit has held that “a single unlawful

discharge, if ordered by a person whose edicts or acts may fairly be said to represent

official policy, can, by itself, support a claim against a municipality.” Littlejohn, 795 F.3d

at 315 (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 128 (2d

Cir. 2004)). “Tt does not suffice ... that the official has been granted discretion in the

performance of his duties. ‘[O]nly those municipal officials who have final

policymaking authority may by their actions subject the government to § 1983

liability.’” Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 123 (1988)). “Whether the official in question possessed final

13

policymaking authority is a legal question, which is to be answered on the basis of state

law.” Id.

Plaintiffs claim that Darche, as Executive Director of the CCRB, possesses final

policymaking authority with respect to employment decisions. Plaintiffs point to the

New York City Charter, which vests in city agency heads various “powers, duties and

responsibilities for personnel management,” N.Y.C. Charter § 812(b), including the

power “to appoint and remove” employees, id. § 815(f). Defendants, meanwhile,

contend that plaintiffs conflate Darche’s decision-making authority over CCRB

employment matters with his authority to set municipal policy on those matters.

Defendants direct the Court to section 814 of the New York City Charter, which vests

the Commissioner of the Department of Citywide Administrative Services (“DCAS”)

with the authority to set binding, citywide public employment policy. N.¥.C. Charter §

814(b); see also City of New York v. City Civ. Serv. Comm’n, 60 N.Y.2d 436, 442 (N.Y. 1983).

The appropriate level at which to locate “final policymaking authority” over New

York City personnel decisions has caused some confusion in this Circuit. As plaintiffs

point out, some courts have found an agency head’s ability to take personnel actions

“without the need for intervention from any higher authority” sufficient to constitute

final policymaking authority. Thelwell v. City of New York, No. 13-Cv-1260 (JGR), 2015

WL 4545881, at *20 (S.D.N.Y. July 28, 2015); see also, e.g., Stajic v. City of New York, No.

16-Cv-1258-GHW, 2018 WL 4636829, at *13 (5.D.N.Y. Sept. 27, 2018); Zambrano-

Lamhaouhi v. New York City Bd. of Educ., 866 F. Supp. 2d 147, 175 (E.D.N.Y. 2011). Others

have disagreed, focusing on the DCAS Commissioner’s “final authority ... to formulate

the rules governing personnel decisions rather than the [agency head’s] authority to

make decisions pursuant to those rules.” Gitfens-Bridges v. City of New York, No. 19-Cv-

272 (ER), 2020 WL 3100213, at *13 (S.D.N.Y. June 11, 2020) (quoting Chin v. New York

City Hous. Auth., 575 F. Supp. 2d 554, 562 (S.D.N.Y. 2008)); see also, e.g., Adams-Flores v.

City of New York, No. 18-Cv-12150 (JMF), 2020 WL 996421, at *7 (S.D.N.Y. Mar. 2, 2020);

Daniels v. City of New York, No. 17-Cv-9960 (LGS), 2019 WL 251511, at *7 (S.D.N.Y. Jan.

17, 2019).

The Second Circuit’s recent decision in Agosto v. New York City Department of □

Education helped clarify this inquiry. 982 F.3d 86, 97 (2d Cir. 2020). Plaintiff Agosto, a

public-school teacher, claimed that his school’s principal had retaliated against him for

protected speech. As here, Agosto alleged Monell liability on the theory that the

principal acted as a final policymaker within the school. Id. at 98. The panel rejected this

argument, noting that under state law, school principals are “subject to the regulations

of the chancellor,’ who possesses expansive powers to make policy for... New York

City schools.” Id. (quoting N.Y. Educ. Law § 25904). The panel further reprimanded

lower courts for “erroneously equating a principal’s final decisions with a

municipality’s final policies,” id. at 100-101, and re-centered the inquiry on whether a

14

defendant's “edicts or acts’ would be considered to ‘represent official policy’ for the

entire municipality,” id. at 98 (quoting Monell, 436 U.S. at 694).

Relevant here, the Second Circuit explained that “even when the official ‘is the apex

of a bureaucracy,’ that merely ‘makes the decision final but does not forge a link

between finality and policy.” Id. at 101 (quoting Hurdle v. Board of Education of City of

New York, 113 F. App'x 423 (2d Cir. 2004)). Indeed, “’[a]ny city acts exclusively through

agents’... .[B]y equating a final decisionmaker with a final policymaker, [defendants’]

approach would effectively impose respondeat superior liability —making the

municipality liable for the conduct of its employees—in violation of Monell itself.” Id. at

100-101 (quoting Hurdle, 113 F. App’x at 427).

Accordingly, Darche’s authority over CCRB employment decisions, without more,

cannot support a Monell claim against the entire municipality. It may be true that

Darche is a final decisionmaker with respect to CCRB employment matters. But “the

relevant municipal entity in this case” is the City of New York, not the CCRB. Id. at 99;

cf. Walker v. City of New York, 974 F.2d 293, 301 (2d Cir. 1992). And the New York City

Charter vests final authority to “establish and enforce standards, guidelines and

criteria” governing citywide employment policy with the DCAS Commissioner, N.Y.C.

Charter § 814(b)(3); cf. Littlejohn v. City of New York, 795 F.3d at 315 (2d Cir. 2015) (“The

Charter vests policymaking authority with respect to personnel decisions with [the

DCAS Commissioner.]” (quoting Soto v. Schembri, 960 F. Supp. 751, 759 (S.D.N.Y.

1997)))7 City of New York v. City Civ. Serv. Comm'n, 60 N.Y.2d 436, 442 (1983) (holding

7 Defendants contend that the Second Circuit's decision in Littlejohn “fully embraced” the position that

final policymaking authority rests with the DCAS Commissioner. (Defs,’ Mot. at 7.) This contention

overstates Littlejohn’s holding. There, a municipal employee who was demoted by an agency head's chief

of staff brought suit, alleging Monell liability. Littlejohn, 795 F.3d at 314-15. A panel of the Second Circuit

rejected her claim, noting that a chief of staff is “not a final municipal policymaker such that her isolated

personnel decision to demote [plaintiff] could be said to represent official City policy.” In support of this

unremarkable proposition, the panel cited a 1997 district court opinion in Soto v. Schembri, and included

an explanatory parenthetical quoting Sote’s holding that “[t]he [New York City] Charter vests

policymaking authority with respect to personnel decisions with the [DCAS Commissioner].” Littlejohn,

795 F.3d at 315 (quoting Sote, 960 F. Supp. at 759).

The Court here holds that the best reading of the New York City Charter, in light of Agoste, assigns the

DCAS Commissioner, and not agency heads, final policymaking authority for municipal employment

purposes. But the Court does not read Littlejohn to hold as much, based on only its parenthetical citation

to a two-decade-old district court opinion. Since Littlejohn, several district courts have cited this

parenthetical as binding precedent. See, e.g., Johnson v. City of New York, No. 18-CV-9600 (AJN), 2020 WL

2036708, at *3 (S.D.N.Y, Apr. 28, 2020); Adams-Flores, 2020 WL 996421, at *7 (S.D.N.Y. Mar, 2, 2020),

Dantels, 2019 WL 251511, at *7. This Court believes such a significant holding warrants substantive

treatment from the Second Circuit in an action that squarely presents the question.

15

that the DCAS Commissioner’s predecessor “has both policy-making authority and

functional responsibility for civil service matters in New York City”). Whatever agency-

specific personnel policies Darche may establish, he remains subject to the DCAS

Commissioner’s higher authority to preempt and reverse those policies. See Agosto, 982

F.3d at 98 (“The authority to make policy ‘necessarily’ means ‘the authority to

make final policy.’” (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988))).

Because Darche’s personnel decisions cannot be considered to “represent official

policy” for the municipality, Monell, 436 U.S. at 694, plaintiffs’ First Amendment claim

against the City of New York must be dismissed.

D. Plaintiffs Have No Private Right of Action Under the New York State

Constitution

Plaintiffs also purport to bring a parailel free-speech claim under Article I, Section 8

of the New York State Constitution. In contrast to 42 U.S.C. § 1983, which creates a

private right of action for state officials’ violations of the federal Constitution, “[n]o

explicit constitutional or statutory authority sanctions a private right of action for

violations of the New York State Constitution.” Wahad v. FBI, 994 F. Supp. 237, 238

(S.D.N.Y. 1998). Following the U.S. Supreme Court’s reasoning in Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388 (1971), the New York State Court of Appeals has

recognized a “narrow” implied cause of action where no other remedy is available.

Brown v. State of New York, 89 N.Y.2d 172, 192 (1996). However, “it is a common view

among District Courts in this Circuit that there is no right of action under the New York

State Constitution for claims that can be brought under § 1983.” Raymond v. City of New

York, No. 15-Cv-6885 (LTS), 2017 WL 892350, at *8 (S.D.N.Y. Mar. 6, 2017) (quoting Dava

v. City of New York, No. 15-Cv-08575 (ALC), 2016 WL 4532203, at *10 (S.D.N.Y. Aug. 29,

2016)); see also, e.¢., Hollins v. City of New York, No. 10-Cv-1650 (LGS), 2014 WL 836950, at

*14 (S.D.N.Y. Mar. 3, 2014); Davis v. City of New York, 959 F. Supp. 2d 324, 368 (S.D.N.Y.

2013).

Plaintiffs here assert First Amendment retaliation claims pursuant to section 1983.

Moreover, “free speech claims under Article 1, Section 8 of the New York State

Constitution are subject to the same analysis as free speech claims under the First

Amendment.” Carter v. Inc. Vill. of Ocean Beach, 693 F. Supp. 2d 203, 212 (E.D.N.Y. 2010).

Accordingly, plaintiffs cannot bring a separate cause of action under the state

Constitution, and this claim must be dismissed.

E. Plaintiffs Fail to State a Claim Under the NYSHRL and NYCHRL

Finally, plaintiffs bring claims pursuant to this Court’s supplemental jurisdiction, 28

U.S.C. § 1367, alleging conduct in violation of the NYSHRL, N.Y. Exec. Law §§ 290 et

seq., and the NYCHRL, N.Y.C. Admin. Code §§ 8-101 et seq. Plaintiffs contend that they

faced unlawful retaliation based on their opposition to discriminatory CCRB practices.

16

1, Legal Standard for NYSHRL and NYCHRL Retaliation Claims

To state a retaliation claim under the NYSHRL, a plaintiff must allege “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.” Zann Kwan v. Andalex Grp.

LLC, 737 F.3d 834, 844 (2d Cir, 2013) (quoting Jute v, Hamilton Sundstrand Corp., 420 F.3d

166, 173 (2d Cir. 2005)). “The elements of retaliation under the NYCHRL differ only in

that the plaintiff need not prove any adverse employment action; instead, he must

prove that something happened that would be reasonably likely to deter a person from

engaging in protected activity.” Mayers v. Emigrant Bancorp, Inc., 796 F. Supp. 2d 434,

446 (S.D.N.Y. 2011) (quoting Gutierrez v. City of N.Y., 756 F. Supp. 2d 491, 509 n. 12

(S.D.N.Y. 2010).

Protected activities include “actionjs] taken to protest or oppose statutorily

prohibited discrimination.” Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019)

(quotation omitted); see NYSHRL § 296(1)(e); NYCHRL § 8-107(7). A plaintiff “need not

establish that the conduct she opposed was actually a violation of [the NYSHRL or

NYCHRL], but only that she possessed a good faith, reasonable belief that the

underlying employment practice was unlawful under that statute.” Id. at 126 (quoting

Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)).

“Opposition” includes not only the filing of formal complaints, but also “informal

protests of discrimination, including making complaints to management... and

expressing support of co-workers who have filed formal charges.” Summa v. Hofstra

Univ., 708 F.3d 115, 127 (2d Cir. 2013) (quoting Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir,

2000)).

2. Plaintiffs Have Not Alleged a Causal Connection Between Any Protected

Activity and Their November 2020 Termination □

Plaintiffs list four occasions on which they allegedly “took steps to oppose”

discriminatory behavior by Darche. (Compl. { 37.) First, the complaint describes a 2019

incident in which Darche berated Duerr and Thelwell after they registered opposition to

the “CCRB’s 911 Incident/Policy.” (id. J 41.) Next, in early 2020, Darche recommended

that Thelwell apply for a job at a Jamaican police oversight agency. (Id. { 42.) Third,

during the COVID-19 pandemic, Thelwell raised concerns about the fact that black

clerical workers were still required to work in-person, while white investigators were

told it was unsafe to return to the office, (/d. {| 40.) Finally, all four plaintiffs claim that

they faced retaliation for supporting Carayannis’s allegations of gender-identity

discrimination. ({d. { 39.) .

The first two of these incidents stumble on the first prong of the retaliation inquiry:

they fail to allege that plaintiffs opposed any discriminatory practice. Despite courts’

17

“expansive interpretation of the opposition clause,” Townsend v. Benjamin Enters., Inc.,

679 F.3d 41, 48 n.7 (2d Cir. 2012), plaintiffs still must plead that they communicated

some form of opposition to their employers, see Crawford v. Metro. Gov't of Nashville &

Davidson Cnty., 555 US. 271, 276 (defining “oppose” in Title VII by “its ordinary

meaning: [t]o resist or antagonize .. .; to contend against; to confront; resist; withstand”

(quoting Webster's New International Dictionary 1710 (2d ed. 1957)) (citation omitted)).8

Here, at a December 11, 2019 staff meeting, Duerr and Thelwell allege that Darche

“verbally attacked and threatened” them after they opposed a CCRB policy relating to

911 incidents. (Id. { 41.) Darche told them “they were both fired, effective immediately,”

a mandate he later retracted. (/d.) When Thelwell, who is black, did not leave the room,

Darche told her that “not only was she fired but that he would call 911 on her.” (id) He

did not make any similar threats to Duerr, who is white.

Plaintiffs do not claim that Thelwell and Duerr’s disagreement with the CCRB’s 911

policy itself constituted opposition to some form of discriminatory practice. Instead,

plaintiffs contend that Darche’s actions in response to their disagreement — “aggressively

pointing] at... Thelwell, towering and leaning over her,” and threatening to call 911

(d.)— constituted racial discrimination in violation of law. See NYSHRL § 296(1);

NYCHRL § 8-107(1). However, the complaint does not indicate that Thelwell expressed

any form of opposition to this perceived discrimination. See, e.g., Raucci v. Ctr. for

Disability Servs., Inc., No. 19-Cy-1002 (MAD), 2020 WL 777269, at *5 (N.D.N.Y. Feb. 18,

2020) (“Nothing in the amended complaint indicates whether Plaintiff expressed any

opposition to the [discrimination.]”). Accordingly, this incident alleges no “protected

activity” based on which Thelwell could have faced subsequent retaliation.

The same analysis applies to Darche’s statement, in early 2020, that Thelwell should

“see if she could get a job” at a Jamaican police oversight agency. (Compl. {[ 26.)

Plaintiffs claim that this comment, too, constituted racial discrimination, as it suggested

that Thelwell, a 25-year-resident of New York City, “should return to her country of

origin.” ([d.) Again, however, the complaint fails to indicate that Thelwell expressed any

opposition to Darche’s allegedly discriminatory conduct, and so this incident cannot

support Thelwell’s retaliation claim.

Plaintiffs’ third cited incident, in which Thelwell opposed perceived disparate

treatment for black clerical workers, also fails to support Thelwell’s claim. This

conversation took place “in the midst of the COVID-19 pandemic,” at which time the

agency had three black clerical workers continue to work in-person at the office. (id. {

40.) When “White Investigators asked to return to the office,” however, “Darche said it

8 NYSHRL claims are “analytically identical to claims brought under Title VIL.” Torres v. Pisano, 116 F.3d

625, 629 n.1 (2d Cir, 1997). Accordingly, interpretations of Title VII apply with equal force to NYSHRL

claims.

18

was not safe.” (Id.) Thelwell raised the inconsistency, “noting the disparate impact

COVID has on communities of color,” but “Darche and Kadushin told her it was none

of her business.” (d.)

In contrast to the first two incidents, Thelwell’s statements here likely amount to

protected conduct. The NYSHRL and NYCHRL ban discriminatory treatment on the

basis of race, see NYSHRL § 296(1); NYCHRL § 8-107(1), and Theiwell may have

“possessed a good faith, reasonable belief that the underlying employment practice was

unlawful,” Summa v. Hofstra Univ., 708 F.3d at 126.? Nonetheless, this incident falters on

the final prong of the retaliation inquiry: it fails to demonstrate a “causal connection

between the protected activity and the adverse employment action.” Jute, 420 F.3d at

173.

As in the First Amendment context, a causal connection between protected conduct

and a retaliatory action may be demonstrated “(1) indirectly, by showing that the

protected activity was followed closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow employees who engaged

in similar conduct; or (2) directly, through evidence of retaliatory animus directed

against the plaintiff by the defendant.” Gordon v. New York City Bd. of Educ., 232 F.3d

111, 117 (2d Cir. 2000).

Here, Darche and Kadushin’s statement that the in-person employment disparity

was “none of [Thelwell’s] business” does not rise to the level of evincing retaliatory

animus. Moreover, plaintiffs fail to specify when the conversation occurred in relation

to Thelwell’s termination; the complaint notes only that it took place “in the midst of

the COVID-19 pandemic,” a phrase that lends little clarity. Absent any such direct or

indirect evidence, the Court cannot infer a causal connection from this event.

Plaintiffs’ state-law claims thus rest on their support of Carayannis’s gender-

identity discrimination complaint. See NYSHRL § 296(1) (forbidding discrimination on

the basis of gender identity); NYCHRL § 8-107(1) (same). Indeed, for all plaintiffs other

9 Defendants contest this point on the grounds that such a belief would not have been “reasonable.”

Under the NYSHRL and NYCHRL, disparate treatment gives rise to an inference of discrimination when

the compared employees are “similarly situated in all material respects.” Shumway v. United Parcel Serv.,

118 F.3d 60, 64 (2d Cir. 1997). According to defendants, because clerical workers are “by no means

‘similarly situated in all material respects’ to investigators,” any belief by Thelwell that the CCRB’s

disparate practices were unlawful was unreasonable. However, the Second Circuit has “backed away

from a rigid interpretation” of the “similarly situated” test, recognizing that “all material respects’...

varies somewhat from case to case,” and requires “an examination of the context and surrounding

circumstances.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). Moreover, “[wJhether two

employees are similarly situated ordinarily presents a question of fact for the jury.” Id. In light of this

situation-specific analysis, and given the unprecedented nature of the COVID-19 pandemic, the Court

cannot say, for purposes of this Rule 12(b}(6) motion, that Thelwell’s belief was objectively unreasonable.

19

than Thelwell, this support is the sole predicate for their retaliation claims. Plaintiffs

allege that they “openly supported” Carayannis, who filed an internal grievance in

August 2020 describing “discriminatory and hostile behavior by Darche” based on

Carayannis’s transgender/gender non-conforming status. (Compl. { 39.) Plaintiffs set

forth only one occasion, however, on which they expressed their support: in August or

September 2020, plaintiffs “intended to address a meeting to address [Carayannis’s]

complaint,” but “they were refused attendance by Kadushin.” (id.)

This single attempt to attend an internal meeting is insufficient, without more, to

support a cause of action under the NYSHRL or NYCHRL. Plaintiffs argue that

Kadushin and Darche would have understood this attempt to support Carayannis as an

expression of opposition to discrimination. Cf. Galdieri-Ambrosini v, Nat'l Realty & Dev.

Corp., 136 F.3d 276, 292 (2d Cir. 1998). However, even assuming this is so, the Court

nonetheless again cannot infer from this incident any causal connection to plaintiffs’

November 2020 termination.

Plaintiffs have pled no direct or circumstantial evidence that this event led to their

subsequent firing. Plaintiffs do not specify precisely when this meeting occurred, but it

appears to have taken place approximately three months before they were terminated.

When a plaintiff rests on “mere temporal proximity between an employer's knowledge

. [of a] protected activity and an adverse employment action as sufficient evidence of

causality,” courts “uniformly hold that the temporal proximity must be ‘very close.’”

Walder v. White Plains Bd. of Educ., 738 F. Supp. 2d 483, 503 (S.D.N.Y. 2010) (quoting

Clark Cty. Sch, Dist. v. Breeden, 532 U.S. 268, 273 (2001)) (collecting cases). This inquiry is

not subject to a “bright line” test, and the Court must “exercise its judgment about the

particular inferences that can be drawn from temporal proximity in the context of

particular cases.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). In this particular case,

where plaintiffs’ sole factual contention is that they attempted to attend an internal

meeting to address another employee’s discrimination complaint, the Court cannot

infer such a causal link based on three months’ temporal proximity alone.”

Accordingly, plaintiffs’ NYSHRL and NYCHRL claims are dismissed. It is true that

NYCHRL claims “must be reviewed independently from and ‘more liberally’ than”

NYSHRL claims. Loeffler v. Staten Island Univ, Hosp., 582 F.3d 268, 278 (2d Cir, 2009)

(quoting Williams v. N.Y. City Hous. Auth., 61 A.D.3d 62, 66-69 (1st Dep't 2009)).

10 The complaint also alleges that Carayannis filed a formal EEOC complaint on September 29, 2020, in

which he named all four plaintiffs as potential witnesses. (Compl. | 39.) However, defendants’ motion to

dismiss demonstrates that this complaint was not filed until January 8, 2021, by which time plaintiffs had

already been terminated. (See Rubenstein Decl. Ex. B, ECF No. 21.) In response, plaintiffs clarify that

Carayannis submitted an EEOC online intake form on September 29 and listed plaintiffs as potential

witnesses. (Pordy Decl. Ex. A, ECF No. 26.) The complaint does not allege, however, that defendants had

knowledge of this intake form at the time of plaintiffs’ termination.

20

However, the NYCHRL still requires plaintiffs to plead both a protected activity and a

causal connection in order to state a retaliation claim. And plaintiffs here “offer[] no

independent argument for why this cause of action should survive if [their] NYSHRL

claim does not.” Roenick v. Flood, No. 20-Cv-7213 (IPC), 2021 WE 2355108, at *7 (S.D.NLY.

June 9, 2021). Thus, even under the NYCHRL’s “more liberal” standard, these claims

must be dismissed as well.

TEI. CONCLUSION

For the reasons set forth above, defendants’ motion to dismiss the complaint is

granted in part and denied in part. Defendant CCRB is dismissed from the action.

Plaintiffs’ First Amendment claims may proceed against defendant Darche. Plaintiffs’

municipal-liability claim against the City of New York is dismissed. Plaintiffs’ clatms

under the New York State Constitution, New York State Human Rights Law, and New

York City Human Rights Law are dismissed as well. As a result, this action shall □

proceed against the Executive Director of the CCRB on plaintiffs’ claims that he

unlawfully retaliated against them in violation of the First Amendment. Discovery

proceedings should focus on elucidating plaintiffs’ functional day-to-day job

responsibilities, whether they opposed CCRB policies and practices in furtherance of

these duties, and whether their speech led to their November 2020 termination.

Matthews, 779 F.3d at 173-74.

Dated: New York, New York

August 23, 2021

SO ORDERED:

Ve MSD. la:

Sidney H. Stein, U.S.D.]

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