# McGrath v. Fire Department of the City of New York

> District Court, E.D. New York · August 8, 2019

URL: https://www.frixlaw.com/law-library/cases/10658895

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 8, 2019
- **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/10658895

## How later opinions describe it (automated extraction)

- noting that temporal proximity can establish a causal connection between a protected activity and an adverse employment action
- explaining that without “demotion, reduction of pay, or reduction of job responsibilities . . . constant insults and comments” did not amount to an adverse employment action for the purposes of a discrimination claim

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
nena ne nee nner nen eneeneneeen K
MICHAEL MCGRATH

Plaintiff, MEMORANDUM & ORDER
-against- 17-CV-1461 (NGG) (RER)
MARILYN ARROYO, STEVEN RUSSO, JAMES
LEONARD, DANIEL NIGRO, MAYOR BILL
DEBLASIO, THE FIRE DEPARTMENT OF THE
CITY OF NEW YORK, and THE CITY OF NEW
YORK,
Defendants.
nanan nnn nnn eee en eneenenenenenecenenn K
NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiff Michael McGrath brings this action against Defendants Marilyn Arroyo, Steven
Russo, James Leonard, Daniel Nigro, Mayor Bill DeBlasio, (collectively, the “Individual
Defendants”), the Fire Department of the City of New York (the “FDNY”), and the City of New
York (the “City”). (See Am. Compl. (Dkt. 32).) Plaintiff asserts causes of action pursuant to: (i)
the anti-discrimination provisions found in Title VII of the Civil Rights Act of 1964, as amended
(“Title VIT”); (ii) the anti-discrimination provisions found in the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq.; (iii) Title VII’s anti-retaliation provisions; (iv) Sections
1981, 1983, 1985 and 1986 of Title 42 of the United States Code; (v) the First Amendment of the
United States Constitution; (vi) Section 29 of the New York Human Rights Law (“NYHRL”)
and §§ 40-c & 40-d of the New York Civil Rights Law (“NYCRL”); (vii) Section 8-107 of the
New York City Human Rights Law (““NYCHRL”); (viii) state law tortious interference with
contract; (ix) state law intentional infliction of emotional distress; and (x) state law breach of
contract.

Before the court is Defendants’ motion to dismiss. (Mot. to Dismiss (Dkt. 39); Defs.
Mem. of Law in Supp. of Mot. to Dismiss (“Mem.”) (Dkt. 40)). For the following reasons,
Defendants’ motion is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
A. Factual Allegations
The court takes the following statement of facts from Plaintiff's amended complaint, the
well-pleaded allegations of which the court generally accepts as true for purposes of a motion to
dismiss. See N.Y. Pet Welfare Ass’n v. City of New York, 850 F.3d 79, 86 (2d Cir. 2017).
At all relevant times, Defendant Mayor Bill DeBlasio was the mayor of the city of New
York (Am. Compl. J 14), and Defendant Daniel Nigro was the FDNY Commissioner (id. J 13).
Plaintiff Michael McGrath had a long career with the FDNY. (See id. Jf 33-50.) At the
beginning of the alleged incidents, Plaintiff was Battalion Commander of Battalion 47, meaning
he was “in charge of all FDNY resources in the Rockaways.” (Id. ] 45.) In 2005, FDNY moved
Emergency Medical Services (“EMS”) into the firehouse where Plaintiff worked (the
“Firehouse”). (See id. 751.) The complaint alleges that there are no written procedures for how
! “fire personnel should interact” with EMS. (1d. 4 55).
1. Plaintiffs Allegations Against Arroyo
| In January 2014, Plaintiff and Defendant Marilyn Arroyo met at the scene of an accident
that involved an EMS FDNY vehicle. (Id. § 63.) At that time, Arroyo worked for FDNY EMS.
(See id. J] 63-65.) In the following months, Plaintiff and Arroyo interacted professionally and
sometimes discussed personal topics. (See, e.g., id. §{] 64, 66, 68, 69, 70, 72.) For a few months,
Asroyo worked out of another EMS location, but she rotated back to the EMS station at the
Firehouse in the spring of 2014. (Id. Jf 71, 72.) Plaintiff and Arroyo continued to converse

occasionally (id. J 74), including at a barbecue Arroyo attended at Plaintiff’s house in July 2014
(id. 80, 82). They discussed both personal and professional matters at the barbecue and
continued to do so in subsequent months. (Id. {J 82-83.)
Plaintiff alleges that, in or about July 2014, Arroyo was having sex in the Firehouse with
a firefighter stationed there. (Id. 77.) Plaintiff did not know about it at the time. (Id.) In
January 2015, Plaintiff “began hearing numerous detailed accounts that Arroyo had sex with” a
firefighter in the Firehouse. (Id. 4 84.) A different firefighter later informed Plaintiff that he had
walked in on Arroyo and a firefighter having sex in the steam room of the men’s bathroom in the
Firehouse. (Id. 116-22.) In March 2015, the wife of a firefighter in the Firehouse approached
Plaintiff in a restaurant and told Plaintiff she knew about Arroyo “having sex in the firehouse.”
(Id. § 86.) Plaintiff alleges that he also heard that “Arroyo kissed her Firefighter boyfriend on
the lips at the scene of the fire where [a] civilian fatality had occurred.” (Id. J 93).
Plaintiff decided action must be taken because, if these rumors were true, Arroyo’s
conduct would be “a violation of FDNY policies and procedures.” (Id. | 87.) The day after the
complaint in the restaurant, Plaintiff met with Arroyo’s supervisor, Defendant EMS Chief Steven
Russo, to discuss Arroyo having sex in the Firehouse. (Id. 4 89.) Russo said “he would look into
it and get back to [Plaintiff]” but Russo did not “get back to him.” (Id. § 90.) Because Russo
allegedly did not investigate the allegations against Arroyo, Plaintiff decided to “conduct an
investigation.” (Id. §] 94-95.) He spoke with Arroyo about the allegations. (Id. J] 95-96.) The
firefighter with whom Arroyo allegedly had sex “did not work in [Plaintiff]’s command,” so
| Plaintiff contacted Assistant Chief Edward Baggott and Division Commander James
DiDomenico. (Id. 100.) Plaintiff alleges, upon information and belief, that Baggott then
contacted the Bureau of Investigations and Trials (“BITs”) to determine how to proceed. (Id.

{ 102.) Later the same day, DiDomenico advised Plaintiff that BITs was not going to investigate
Arroyo’s behavior. (Id. | 103.) Plaintiff alleges that “BITs chose not to act on the allegations”
because Arroyo is Hispanic and female. (Id. { 104.)
2. FDNY’s Investigation of Plaintiff
On or about March 27, 2015, Plaintiff was moved to the Queens Borough Command.
(Id.) Plaintiff alleges he was “stripped of his duties” (id. § 111), and that he was not told “why
he was being moved or for how long” (id. 9 112). In his new position, Plaintiff was not fighting
fires. (id. J 113.) Instead, he was “relegated to sitting at a desk . . . and creating a newsletter
once a month.” (Id.) “At some point after being removed from his firehouse, someone from the
Uniformed Fire Officers Association” told Plaintiff they heard Arroyo filed a claim of
harassment (id. J 132), and Plaintiff alleges, upon information and belief, that “these actions
were taken against [him] because he is a Caucasian (white) who investigated allegations of
wrongdoing against Arroyo who is Hispanic and a female” (id. J 114). Plaintiff further alleges
that his complaints about Arroyo were ignored because he is a white man, while Arroyo’s
complaints were investigated because she is “Hispanic and a Female.” (Id. J 115.)
On November 24, 2015, Plaintiff received a “Notice of Investigation,” which informed
him that a “female subordinate” had filed “an allegation against him.” (Id. § 133.) Plaintiff “was
not notified in writing . .. who made the allegation against him as required by policy.” (Id.
q 136.) On January 6, 2016, Plaintiff alleges that he was interview by the FONY EEO! about the
allegations against him. (Id. § 139.) After the interview, Plaintiff alleges that he was “kept in the

_ dark for months.” (Id.)

| ‘The complaint does not define “EEO.” The court presumes that Plaintiff uses the acronym to refer to the FDNY
| Equal Employment Opportunity Office, and, in any event, will use the acronym as it appears in the complaint.
|

On May 16, 2016, Plaintiff “filed a complaint with the New York State Division of
Human Rights [(““SDHR”)] and the United States Equal Employment Opportunity Commission
[(“EEOC”)], as well as an internal FDNY EEO complaint.” (Id. § 141.) FDNY continued its
investigation of Arroyo’s allegations after Plaintiff filed his complaints with SDHR, EEOC, and
FDNY EEO. (Id. § 141.) FDNY informed Plaintiff that they would “not investigate his claims”
because he had “filed a complaint with the SDHR.” (Id. § 146.) Plaintiff alleges, however, that
FDNY “ignor[ed Plaintiff's] complaints . . . because he is a Caucasian/White Male.” (Id, { 148.)
Plaintiff also claims that the decision to continue investigating the claims against him was in
violation of FDNY policy, which states that “investigations must be completed within 90
calendar days.” (Id. { 142.) On July 7, 2016, FDNY EEO conducted another interview of
Plaintiff, during which they placed Plaintiff under oath, a procedure which Plaintiff alleges was
also a violation of FDNY policy. (Id. § 151.) On August 15, 2016, Plaintiff received word from
FDNY EEO that “the allegations against him were substantiated” and that he would be referred
for discipline. (Id. J 154.)
At some point,” someone from UFOA allegedly told Plaintiff he needed to admit to
various allegations against him, including that he was “dating” Arroyo, that firefighters had been
talking about Arroyo having sex in the firehouse, and that he told another firefighter to “break up
with” Arroyo. (Id. Jf 159-60.) Plaintiff refused to do so. (id. § 161.) A few days later,
Assistant Chief Edward Baggott, allegedly the “fifth highest uniformed officer of the FDNY,”
told Plaintiff that “someone in Headquarters told him to tell [Plaintiff] to [admit to the
allegations.]” (Id. { 162.) Plaintiff alleges, on information and belief, that this message came
2 The Amended Complaint reads August 2015, but based on this paragraph’s location in the narrative and the
_ substance of the paragraph, the court believes that Plaintiff may be referring to August 2016.

from Defendant Department Chief James Leonard. (Id. 165.) This made Plaintiff feel
| threatened and intimidated. (Id. □ 164.) Someone from the firefighters’ union also called
Plaintiff to say that “leadership from FDNY” told him to “take the ‘deal’ and that, if he did not,
FDNY would ‘go after’” him. (Id. J 166.) On September 9, 2016, Plaintiff was served with
“charges.” (Id. ¥ 155.)
3. Plaintiff's Disability Pension
Plaintiff “suffers from various medical issues including asthma, sinus congestion,
gastroesophageal reflux disease, and PTSD as a result of his recovery work at the World Trade
Center [] following the September 11, 2001 terrorist attacks. (Id. § 176.) He also suffers from
“various medical issues, including disabling orthopedic infirmities, stemming from fighting
fires.” (Id. 9177.) In April 2017, Plaintiff “applied for accident disability retirement” from the
FDNY, but was told he would not be allowed to collect his disability pension because of the
ongoing investigation of his conduct towards Arroyo. (Id. 178-79.) Plaintiff also alleges,
upon information and belief, that the FDNY “continued to drag out the investigation against
[him]... to keep him from receiving his disability pension.” (Id. J 183.)
While Plaintiff was on medical leave,? BITs “continuously” asked him to “appear for
interviews and a ‘Step 1 Hearing.’” (Id. ] 196.) Plaintiff alleges that these requests violated
FDNY policy because people “on medical leave cannot be required to appear for . . . interviews
or hearings.” (Id. § 197.) Plaintiffs health allegedly suffered as a result of the investigation and
denial of benefits, and he chose to retire. (Id. J 202-03.) After Plaintiff retired, he went to the
medical board, seeking disability pension. (Id. J 184.) His request was denied, despite other
people with lesser disabilities allegedly having their requests approved. (Id. §] 185, 187.)

3 The Amended Complaint does not identify the time period that Plaintiff was on medical leave.

4, Additional Alleged Retaliation Against Plaintiff
On August 13, 2016, the Plaintiff performed an off-duty rescue, and Chief DiDomenico
recommended Plaintiff for a Class 3 award.’ (Id. Jf 169-70.) Although Plaintiff alleges that
DiDomenico’s recommendations have always been granted, Plaintiff's was told he would receive
a Class A award, which is less prestigious than a Class 3 award.* (Id. § 172.) On March 15,
| 2017, Plaintiff filed his complaint in this court (Compl. (Dkt. 1)); on May 5, 2017, he was told he
| would not receive any medal or award at all (Am. Compl. 4 173). Plaintiff alleges that he was
not awarded his recommended medal as retaliation for filing his complaint. (Id. J 175.)
On November 1, 2017, FDNY transferred Arroyo to a station “within a quarter of a mile
of where [Plaintiff] lives.” (Id. J 188.) Plaintiff alleges that Arroyo was transferred to this
location “[iJ]n a further act of retaliation” against him. (Id. § 190.) Some time in November
2017, Plaintiff saw Arroyo in a convenience store and left without speaking to her. (Id. J 191.)
Then, on November 24, 2017, FDNY informed Plaintiff “he was being investigated for engaging
in ‘retaliatory activities’ against Arroyo” and BITs requested to interview Plaintiff. (Id. J 193.)
As a result, Plaintiff allegedly “lived in constant fear that if he encountered her or if she was in
his presence he would be falsely accused of ‘retaliation’” and thus chose not to leave his home
on “many days.” (Id. 194.) Plaintiff did not leave his home to pick up medications, “had to
reschedule plans to make purchases,” and gave up “his routine walks on the beach.” (Id. { 201.)
B. Procedural History
On May 16, 2016, Plaintiff filed a verified charge of discrimination with the United
States Equal Employment Opportunity Commission (“EEOC”) in connection with his

* A Class 3 Award results in the service member being “honored on Medal Day.” (Am. Compl. 170.)
5 A Class A award does not result in being honored on Medal Day. (Am. Compl. J 172.)

employment with Defendants the City, FDNY, DeBlasio, and Nigro. (Am. Compl. On
December 19, 2016, the EEOC issued a notice of right to sue. (Id. J 2.)
On March 15, 2017, Plaintiff filed his complaint in this court against Defendants the City,
FDNY, DeBlasio, and Nigro. (Compl.) On January 17, 2018, Plaintiff filed a charge of
disability discrimination with the EEOC, and the EEOC issued a notice of right to sue on
February 28, 2018. (Am. Compl. ff 5-6.) On May 30, 2018, with leave of the court, Plaintiff
filed his Amended Complaint, asserting twenty causes of action. (Am. Compl.)
On February 15, 2019, the Defendants submitted a fully briefed motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mem.; Pl. Mem. in Opp’n to Defs. Mot.
to Dismiss (“Opp’n”) (Dkt. 42); Defs. Reply Mem. in Supp. of Mot. to Dismiss (“Reply”) (Dkt.
44).)
IL. LEGAL STANDARD
To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
complaint must contain facts that do more than present a “sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678. To decide Defendants’ motion to dismiss, the court
“will accept all factual allegations in the [c]omplaint as true and draw all reasonable inferences
in [Plaintiff's] favor.” L-7 Designs. Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011).
However, the court will “identify[] pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. The court must then evaluate
the “well-pleaded factual allegations” and “determine whether they plausibl[y] give rise to an
entitlement to relief.” Iqbal, 556 U.S. at 679. Even when, before discovery, “facts are peculiarly

oO

within the possession and control of the defendant,” the complaint must still provide “enough

_ fact to raise a reasonable expectation that discovery will reveal evidence of illegality.” Arista
Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 556).
iI. DISCUSSION
A. Title VIJ Employment Discrimination Claim (Count Five)
Plaintiff names Defendants DeBlasio, Leonard, and Nigro (collectively, the “Supervisory
Defendants’’), as well as FDNY and the City, as Defendants in Count Five. (Am. Compl. J 233-
44.)
In a Title VII employment discrimination case, a plaintiff must “prove that the employer-
defendant acted with discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297,
307 (2d Cir. 2015). However, at the motion to dismiss stage, the plaintiff need only plead facts
that make a prima facie case of discrimination plausible. Vega v. Hempstead Union Free School
Dist., 801 F.3d 72, 84 (2d Cir. 2015). More specifically, “what must be plausibly supported by
facts alleged in the complaint is that [(1)] the plaintiff is a member of a protected class, [(2)] was
qualified, [(3)] suffered an adverse employment action, and [(4)] has at least minimal support for
the proposition that the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d
at 311.
Defendants do not dispute whether Plaintiffs have sufficiently alleged the first two

elements. (See Mem.) The court will therefore address only elements three and four: adverse
employment action, and motivated by discriminatory intent. See Littlejohn, 795 F.3d at 311.

1. Adverse Employment Action
A. Legal Standard
For the purpose of a Title VII discrimination claim, an adverse employment action occurs
when a plaintiff “endures a materially adverse change in the terms and conditions of
employment.” Vega, 801 F.3d at 85 (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636,
640 (2d Cir. 2000) (quotation marks omitted)). “Examples of materially adverse changes include
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices unique to a particular situation.” Vega, 801 F.3d at 85 (quoting Terry v.

_ Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). An adverse employment action must be more than
a “mere inconvenience” or “alteration of job responsibilities.” Id.
“[A]n involuntary transfer may constitute an adverse employment action” if the transfer
“created a materially significant disadvantage’ with respect to the terms of [the plaintiff s]
employment.” Williams v. R.H. Donnelly, Corp., 368 F.3d 123, 128 (2d Cir. 2004) (Sotomayor,
J.) (quoting Galabya, 202 F.3d at 641). A transfer is “an adverse employment action if it results
in a change in responsibilities so significant as to constitute a setback to the plaintiff's career.”
Galabya, 202 F.3d at 641. However, “[i]fa transfer .. . involves no significant changes in an
employee’s conditions of employment, the fact that the employee views the transfer either
positively or negatively does not of itself render the . . . transfer an adverse employment action.”
R.H. Donnelly, Corp., 368 F.3d at 128 (quoting Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532
n.6 (10th Cir. 1998) (alteration adopted)).
An employer’s investigation of an employee arising out of allegations of discrimination
or harassment filed against that employee is not inherently an adverse employment action. See

Cox v. Onondaga Cty. Sheriff's Dep’t, 760 F.3d 139, 146 (2d Cir. 2014) (stating that an
employer’s investigation is not in itself grounds for Title VII retaliation claim). This is because
refusing to investigate an accusation of discrimination or harassment could, in fact, make an
-employer liable for that discrimination or harassment. See Malik v. Carrier Corp., 202 F.3d 97,
105 (2d Cir. 2000) (“[AJn employer’s investigation of a sexual harassment complaint is not a
gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may
allow a jury to impose liability on the employer.”) Therefore, “the law must give breathing room
for such investigations to be carried out.” Cox, 760 F.3d at 146.
B. Application
Defendants assert that Plaintiff was not subject to any adverse employment action. (See
Mem. at 8.) As to Plaintiff's argument that being the subject of an investigation constitutes an
adverse employment action, Defendants point out that the FDNY EEO was required by law to
investigate Arroyo’s sexual harassment claim. (Id. at 12). And Defendants claim that Plaintiff’ □
transfer to the Queens Borough station was not an adverse employment action because (1)
Plaintiff “retained his rank, position responsibilities, and seniority” and (2) an employee’s
subjective negative view of his transfer does not make a that transfer an adverse employment
action. (Id. at 8.)
Plaintiff responds that he was “stripped of his duties” in his new job assignment. (Opp’n
at 7.) He points to the complaint’s allegations that his new assignment was “less prestigious
[and] materially less suited to his skills and expertise” than his previous assignment, and states
that the transfer amounted to “severe professional . . . trauma.” (Opp’n at 6.) According to
Plaintiff, the transfer therefore constituted an adverse employment action. (Id.) In addition,
Plaintiff claims that the charges brought against him as a result of the sexual harassment

11

investigation “tarnished his reputation,” and that they also constituted an adverse employment
action. (Opp’n at 7.) Finally, Plaintiff characterizes the FDNY’s failure to award him the medal
that Chief DiDomenico recommended he receive as an adverse employment action. (Id. at 8.)
Plaintiff has alleged sufficient facts to support his claim that his reassignment to the
Queens Borough Command constituted an adverse employment action. In his new position,
Plaintiff alleges that his job description changed entirely, and that he was “relegated to sitting at
a desk every day and creating a newsletter once a month” (Am. Compl. 113) despite “not
want[ing] a desk job” (id. 41 (emphasis removed)). Plaintiff's transfer therefore created “a
materially adverse change in the terms and conditions of [his] employment,” Vega, 801 F.3d at
85 (quoting Galabya, 202 F.3d at 640 (internal quotation marks omitted)).
However, the investigation of Arroyo’s sexual harassment claim was not an adverse
employment action. An organization must be able to, and is frequently legally required to,
investigate allegations of sexual harassment. See, e.g., Malik, 202 F.3d at 105. The fact of such
an investigation is not an adverse employment action for the purposes of an employment
discrimination claim. Cox, 760 F.3d at 146. Nor does not being awarded a medal rise to the
level of an adverse employment action, because this singular withdrawal of an award did not
materially change Plaintiff's conditions of employment. See Vega, 801 F.3d at 85 (quoting
Galabya, 202 F.3d at 640); cf. Cunningham v. N.Y. State Dep't of Labor, 326 F. App’x 617, 619
(2d Cir. 2009) (holding that “(1) unfounded charges of time abuse; (2) reassignment from a fifth-
floor office to a first-floor office, where plaintiff's staff was located; (3) opposition . . . to hiring
plaintiffs son in a summer job; (4) discontinuing a training conference organized by plaintiff;
| and (5) excluding plaintiff from a Welfare-to-Work conference and from a decision to hire an
| outside consultant,” considered individually or in the aggregate, did not amount to adverse

employment actions (internal quotation marks and citations omitted)); Ingrassia v. Health &
Hosp. Corp., 130 F. Supp. 3d 709, 721 (E.D.N.Y. 2015) (explaining that without “demotion,
reduction of pay, or reduction of job responsibilities . . . constant insults and comments” did not
amount to an adverse employment action for the purposes of a discrimination claim); Smalls v.
Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005) (“[B]eing yelled at, receiving unfair
criticism, receiving unfavorable schedules or work assignments . . . do not rise to the level of
adverse employment actions . . . because they [do] not have a material impact on the terms and
conditions of Plaintiff's employment.” (internal citation omitted)).
2. Motivated by Discriminatory Intent
Since Plaintiff was subject to an adverse employment action, the court will also address
the “motivation” element of an employment discrimination claim.
A. Legal Standard
Under Title VII, a plaintiff “need not allege” that the adverse employment action would
not have happened “but-for” the discriminatory motive. Vega, 801 F.3d at 86. For liability to
arise under Title VII, “race, color, religion, sex, or national origin” need only be a “motivating
factor” in the adverse employment action; in other words, the employment decision need only be
motivated “‘in part” by a discriminatory reason. Id. at 86-87. To survive a motion to dismiss, a
plaintiff must have “minimal support for the proposition that the employer was motivated by
discriminatory intent.” Littlejohn, 795 F.3d at 311.
A plaintiff may support a claim that his employer’s actions were motivated by
discriminatory intent by “present[ing] evidence that an employer departed from its usual
employment practices and procedures in dealing with [the plaintiff.]” Norville v. Staten Island
Univ. Hosp., 196 F.3d 89, 97 (2d Cir. 1999). “However, the mere fact that an employer failed to

192

follow its own internal procedures does not necessarily suggest that the employer was motivated
by illegal discriminatory intent.” Iscenko v. City of New York, No. 16-CV-6535 (LGS), 2017
WL 2880553, at *5 (S.D.N.Y. July 5, 2017) (quoting Harris v. Niagara Mohawk Power Corp.,
252 F.3d 592, 599 (2d Cir. 2001) (quotation marks omitted)).
B. Application
Defendants argue that Plaintiff has not sufficiently alleged that their actions were
motivated, even in part, by the fact that Plaintiff is a white man. (Mem. at 11.) Plaintiff
responds that FDNY’s deviations from department policy regarding investigations—the duration
of the EEO investigation, the lack of opportunity to respond to allegations against him, and
questioning him under oath—are sufficient to allege that Defendants’ actions were motivated by
discriminatory intent. (Opp’n at 9-10.)
To succeed on this claim, Plaintiff must allege facts showing that “race, color, religion,
sex, or national origin was a motivating factor for any employment practice.” Vega, 801 F.3d at
87. But Plaintiff has raised no allegations indicating that Plaintiff's transfer to Queens Borough
Command—the only adverse employment action for the purpose of Plaintiff's Title VII
discrimination claim—was motivated by his race or gender. Plaintiff has alleged that FDNY
deviated from procedure by interviewing Plaintiff under oath and asking him to come in for
interviews while on medical leave. (Am. Compl. ff] 151, 196-97.) But while the fact that an
“employer departed from its usual employment practices” can be evidence of discriminatory
motive, Norville, 196 F.3d at 97, Plaintiff has failed to allege facts demonstrating that FDNY’s
deviations from procedure were related to his transfer. See, e.g., Iscenko, 2017 WL 2880553, at
*5 (“Even assuming that the NYPD deviated from established procedures when it investigated
and charged Plaintiff, the Complaint fails to allege any facts that plausibly give rise to the

a4

minimal inference that the NYPD did so at least in part because of Plaintiff's race.”); Santiago v.
City of New York, No. 05-CV-3668 (RRM), 2009 WL 935720, at *9 (E.D.N.Y. Mar. 31, 2009)
(“[A] violation of procedure . . . is insufficient to support an inference that plaintiff was
[discriminated against on] account of her race, gender, color, national origin, or status.”); Torres-
Sylvan v. Am. Civil Liberties Union, No. 01-CV-0343 (DAB), 2005 WL 1719788, at *10
(S.D.N.Y. July 22, 2005) (explaining that an employer’s deviation from procedure was not
enough to establish discriminatory intent because there was no indication that following the
procedure would have led to a different outcome).
For the foregoing reasons, the Defendants’ motion to dismiss Plaintiff's Title VII
employment discrimination claim is GRANTED.
B. Title VII Hostile Work Environment Claim (Count Six)
Plaintiff names the City, FDNY, and the Supervisory Defendants in Count Six. (Am.
Compl. §f 245-49.) □
1. Legal Standard
In order to establish a hostile work environment under Title VII, a plaintiff must allege:
[CJonduct (1) that is “objectively” severe or pervasive—that is, it
creates an environment that a reasonable person would find hostile
or abusive [the “objective requirement”], (2) that the plaintiff
“subjectively perceive[s]” as hostile or abusive [the “subjective
requirement”], and (3) that creates such an environment because of
plaintiff's sex (or other characteristic protected by Title VII) [the
“prohibited causal factor requirement” ].
Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001) (quoting Harris v. Forklift Sys.. Inc., 510
U.S. 17, 21 (1993) (alterations in original) (internal citations omitted)).
With respect to the objective requirement, a plaintiff must show that the defendant’s
conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.” Harris, 510 U.S. at 21 (internal quotation marks
and citation omitted). “Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment—an environment that a reasonable person would find
hostile or abusive—is beyond Title VII’s purview.” Id. “The incidents complained of must be
more than episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (quotation marks and citation
omitted).
To determine whether an incident or series of incidents is severe or pervasive, “courts
assess the totality of the circumstances, considering elements such as ‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. (quoting Harris, 510 U.S. at 23). “While a single act of harassment, if severe
enough, can establish a hostile work environment, lesser incidents ‘must be sufficiently
continuous and concerted in order to be deemed pervasive.’” Q’Neal v. State Univ. of N.Y.
Health Sci. Ctr. Brooklyn, No. 01-CV-7802 (DGT), 2003 WL 1524664, at *7 (E.D.N.Y. Mar.
24, 2003) (quoting Carrero v. N.Y.C. Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989) (citation
omitted)).
2. Application
Defendants argue that Plaintiff has failed to plead facts amounting to “harassment” or a
“pervasive” hostile work environment, and, moreover, that there are no alleged facts indicating
| that Defendants took any actions because Plaintiff is white or a man. (Mem. at 18.) They also
point out that Plaintiff's transfer can be explained by FDNY’s desire to separate Plaintiff from
Arroyo while her sexual harassment claim against him was ongoing. (Id.)

14

Plaintiff responds that the following facts all amount to a hostile work environment: that
he was transferred to another firehouse; that his complaints of discrimination were ignored; that
other employees asked him what happened; and that he was pressured to admit to “fabrications.”
(Opp’n at 20.) In the context of his constructive discharge claim (see below), Plaintiff also
alleges that being commanded to appear for interviews and a Step 1 hearing constituted
harassment. (Am. Compl. §J 196-97.) Plaintiff states that he “lived in daily fear” of the
consequences of leaving his home. (Opp’n at 21; see also Am. Compl. § 195.)
These incidents do not create an objectively abusive working environment. See, e.g.,
Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (summary order)
(dismissing the plaintiffs hostile work environment claim when she alleged “numerous incidents
of unfair treatment,” including that her employer “wrongly excluded her from meetings,
excessively criticized her work, refused to answer work-related questions, arbitrarily imposed
duties outside of her responsibilities, threw books, and sent rude emails to her”); Davis-Molinia
v. Port Auth. of N.Y. & N.J., No. 08-CV-7584 (GBD), 2011 WL 4000997, at *11 (S.D.N.Y.
Aug. 19, 2011) (dismissing a hostile work environment claim when the plaintiff described being
excluded from staff meetings, being assigned menial tasks, having coworkers avoid her or speak
to her in mean ways, being assigned diminished work responsibilities, being yelled at and talked
down to, and having her work reassigned to other people), aff'd, 488 F. App’x 530 (2d Cir.
2012) (summary order); Peralta v. Roros 940, Inc., 72 F. Supp. 3d 385, 395 (E.D.N.Y. 2014) (“In
claiming a hostile work environment, plaintiff [asserts] . . . episodes of name-calling (heard
secondhand), undue reprimands, perceived animosity, and unwelcome work assignments. This
alleged pattern of behavior . . . does not exhibit the severity or pervasiveness of an actionable
hostile work environment.”). Based on this high standard for an objectively hostile work

17

environment, no facts alleged in the complaint, if proved, amount to a work environment
“permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or
pervasive to alter the conditions of [Plaintiff's] employment.” See Harris, 510 U.S. at 21.
Defendants’ motion to dismiss Plaintiff's hostile work environment claim is therefore
GRANTED.
C. Title VII Employment Discrimination (Constructive Discharge) (Count
Sixteen)
Plaintiff names the City, FDNY, and the Supervisory Defendants as Defendants in Count
Sixteen, alleging that he was constructively discharged from his position with the FDNY. (Am.
Compl. Ff 315-19.) “Constructive discharge of an employee occurs when an employer, rather
than directly discharging an individual, intentionally creates an intolerable work atmosphere that
forces an employee to quit involuntarily.” Whidbee v. Garzarelli Food Specialties, Inc., 223
F.3d 62, 73 (2d Cir. 2000) (internal quotation marks and citation omitted).
The bar for constructive discharge claims under Title VII is higher than that for hostile
work environment claims, so “pleadings that fail to pass muster under the less rigorous standard
[of a hostile work environment] must also be found inadequate under the more demanding
[one].” Pryor v. Jaffe & Asher, LLP, 992 F. Supp. 2d 252, 262 (S.D.N.Y. 2014). Therefore, a
court’s dismissal of a plaintiffs hostile work environment claim necessitates the dismissal of a
plaintiff's constructive discharge claim. See Swiderski v. Urban Outfitters. Inc., No. 14-CV-
6307 (SPO), 2017 WL 6502221, at *13 (S.D.N.Y. Dec. 18, 2017) (noting that the standard for
constructive discharge “is even more demanding than that required to prevail on a hostile
environment claim”); Trinidad v. N.Y. Dep’t of Corr., 423 F. Supp. 2d 151, 168 (S.D.N.Y. 2006)
(“[C]reation of a hostile work environment is a necessary predicate to a hostile-environment
constructive discharge case [under Title VIJJ].” (citation omitted)).

10

Accordingly, Defendants’ motion to dismiss Plaintiff's constructive discharge claim is
GRANTED.
D. Sections 1981 and 1983 Claims (Counts One and Two)
Plaintiff brings claims against the City, FDNY, and the Individual Defendants under 42

USC. §§ 1981 and 1983. (Am. Compl. {J 206-20.)
A § 1981 claim is more difficult to make out than a Title VII claim because “[a] plaintiff
pursuing a claimed violation of § 1981 or denial of equal protection under § 1983 must show that
the discrimination was intentional [while Title VII can be premised on negligence].” Id. at 226.
“(A] plaintiff's §1983 employee discrimination claim,” however, “parallels his Title VI
claim, except that he may bring a § 1983 claim. against an individual.” Vega, 801 F.3d at 88.
Therefore, “[flor a § 1983 discrimination claim to survive a motion for judgment on the
pleadings or a motion to dismiss, a plaintiff must plausibly allege a claim under the same
standards applicable to a Title VII claim—and that the adverse action was taken by someone
acting ‘under color of state law.’” Id. Moreover, “[m]ost of the core substantive standards that
apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims
of discrimination in employment in violation of § 1981.” Patterson, 375 F.3d at 225,
Because Plaintiff has failed to allege sufficient facts to support a Title VII employment
discrimination claim, his §§ 1981 and 1983 claims are also dismissed. Defendants’ motion to
dismiss Plaintiff's § 1981 and § 1983 claims is therefore GRANTED.
E. Section 1985 Claim (Count Three)
Plaintiff brings his § 1985 claim against Arroyo and Russo. (Am. Compl. qj 221-26.)
To succeed in a § 1985 claim, the Plaintiff must show the following:
“(1) a conspiracy; (2) for the purposes of depriving a person or
class of persons the equal protection of the laws, or the equal
10

privileges and immunities under the laws; (3) an overt act in
furtherance of the conspiracy; and (4) an injury to the plaintiffs
person or property, or a deprivation of a right or privilege of a
citizen of the United States.”
Cox v. Onondaga Cty. Sheriff's Dep’t, No. 08-CV-387, 2012 WL 1069053, at *10 (N.D.N.Y.
Mar. 29, 2012) (citations omitted), aff'd, 760 F.3d 139 (2d Cir. 2014). To survive a motion to
dismiss for a Ҥ 1985 [claim], a plaintiff must provide some factual basis supporting a meeting of
the minds, such that defendants entered into an agreement, express or tacit, to achieve the
unlawful end.” Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (quotation marks and citation
omitted). If a plaintiff only alleges “any such meeting of the minds” in a “conclusory fashion,”
then the “conspiracy allegation must . . . fail.” Id. at 111.
Plaintiff has failed to allege any concrete facts that even hint at a conspiracy, explicit or
implicit, between any of the Defendants. Plaintiff alleges only that “Defendants[] Arroyo and
Russo[] conspired to and did deprive Plaintiff of his right[s]” (Am. Compl. J 223), and that
“Arroyo and Russo[] were conspirators” (id. ] 225). There are no other alleged facts that could
plausibly support an inference of conspiracy. As Plaintiff has provided only conclusory
allegations of conspiracy, his conspiracy allegation must fail. See Webb, 340 F.3d at 111.
Defendants’ motion to dismiss Plaintiff's § 1985 claim is therefore GRANTED.
F. Section 1986 Claim (Count Four)
Plaintiff brings his § 1986 claim against the City, FDNY, and the Supervisory
Defendants. (Am. Compl. {{] 227-32.) Section 1986 imposes liability on parties who know “of
the wrongs [defined by § 1985] conspired to be done . . . and having power to prevent or aid in
preventing . . . neglect[] or refuse[] to do so.” 42 U.S.C. § 1986. “[A] § 1986 claim is
contingent upon a valid § 1985 claim.” J.L. v. E. Suffolk Boces, 113 F. Supp. 3d 634, 647
(EDNY. 2015) (citing Wang v. Miller, 356 F. App’x 516, 517 (2d Cir. 2009)).
an

Because Plaintiff has failed to allege a valid § 1985 claim, his § 1986 claim also fails.
Defendants’ motion to dismiss Plaintiffs § 1986 claim is GRANTED.
G. Title VII Retaliation (Counts Seven and Fifteen)
Plaintiff names the City, FDNY, and the Supervisory Defendants as Defendants in
Counts Seven and Fifteen. (Am. Compl. §] 250-54, 310-14.) As an initial matter, “individuals
are not subject to liability under Title VII.” Wrighten v. Glowski, 232 F.3d 119, 119 (2d Cir.
2000) (per curiam) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995)). The court
therefore dismisses Plaintiff's Title VII retaliation claims against the Supervisory Defendants.
To establish a Title VII unlawful retaliation claim against the City and FDNY, Plaintiff
must show “(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.” Kwan v. Andalex Grp. LLC, 737 F.3d
834, 844 (2d Cir. 2013) (quotation marks and citation omitted). If the employer puts forward a
non-retaliatory reason for the employment action, the plaintiff must then provide evidence that
the non-retaliatory reason is a mere pretext for retaliation. See id. at 845. Ultimately, a plaintiff
asserting a Title VII retaliation claim must show that retaliation was a “but-for” cause of the
adverse employment action. See Univ. of Tex. SW. Med. Ctr. v. Nassar, 570 U.S. 338, 362
(2013).
1. Protected Activity
Under Title VII, protected activity includes both “opposing discrimination proscribed by
the statute and .. . participating in Title VII proceedings.” Jute v. Hamilton Sundstrand Corp.,
420 F.3d 166, 173 (2d Cir. 2005). Title VII’s antiretaliation provision is “construed to cover a

“1

broad range of employer conduct.” Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 172
(2011).
For a complaint to qualify as a protected activity, an employee need not lodge a formal
complaint of discrimination. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.
2000) (“[T]he law is clear that opposition to a Title VII violation need not rise to the level of a
formal complaint in order to receive statutory protection.”’); Bennett v. Hofstra Univ., 842 F.
Supp. 2d 489, 500 (E.D.N.Y. 2012) (noting that Title VII does not require a formal complaint).
However, such complaints cannot be so vague or generalized that the employer could not
“reasonably have understood[] that the plaintiff's complaint was directed at conduct prohibited
by Title VII.” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir.
2011) (alteration adopted) (citation omitted).
Plaintiff claims that his reporting of Arroyo’s alleged sexual activities in the Firehouse
amounted to a protected activity. (Opp’n at 12.) He is incorrect. Though “informal complaints
to supervisors” can constitute protected activities, Martin v. State Univ. of N.Y.,704 F. Supp. 2d
202, 227 (E.D.N.Y. 2010), the complaint must still be directed at “conduct prohibited by Title
VII,” Rojas, 660 F.3d at 108 (emphasis removed) (quoting Galdieri-Ambrosini v. Nat’] Realty &
Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)). Arroyo’s alleged sexual activities are not
conduct prohibited by Title VII, so Plaintiffs complaints about Arroyo are not protected
activities.
Defendants do not dispute that Plaintiff filing a complaint with the FDNY EEO (Am.
Comp. { 144), the U.S. EEO, and SDHR (id. § 146) and filing his complaint in this court (id. § 3)
were protected activities. (See Mem. at 12.) These were “complaint{[s] . . . directed at conduct

Aan

[that, if proven, would be] prohibited by Title VII.” Rojas, 660 F.3d at 108 (quoting Galdieri-
Ambrosini, 136 F.3d at 292).
2. Adverse Employment Action
“[IJn the context of a Title VII retaliation claim, an adverse employment action is any
action that ‘could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006)). This covers a broader range of employer activities than those covered by
Title VII discrimination claims. See id. F ora retaliation claim, the adverse action need not
impact the terms and conditions of employment. See id.
When an employer “undertakes a factfinding investigation” in response to a complaint,
that factfinding investigation is not itself grounds for a retaliation claim. See Cox, 760 F.3d at
146-47. “Indeed, .. . the law must give breathing room for such investigations to be carried out.”
Id. at 146; see also Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568-70 (2d
Cir. 2011) (stating that factfinding investigations that could lead to disciplinary action are not
inherently retaliatory); Jaeger v. N. Babylon Union Free Sch. Dist., 191 F. Supp. 3d 215, 228
(E.D.N.Y. 2016) (“[I]nvestigations alone are not adverse employment actions.”) However,
disciplinary charges or actions resulting from an investigation may qualify as retaliation. See
Monclova v. City of New York, No. 05-CV-3164 (DGT), 2008 WL 822117, at *7 (E.D.N.Y.
Mar. 26, 2008) (“[D]isciplinary charges against plaintiffs are . . . an adverse employment action
for the purpose of making out a prima facie case of retaliation . . . [because] charges of this sort
can have significant future consequences for employment and could reasonably dissuade an
employee from raising a claim of discrimination.”)

a4

Plaintiff has alleged facts that, if true, meet the standard for retaliation claims, including
that his discrimination claim was ignored (Am. Compl. J 145-46); that he was denied a
prestigious medal he would otherwise have received (id. { 173); and that he was denied a
disability pension (id. 178-79). These are all things that “could well dissuade a reasonable
worker from making or supporting a charge of discrimination,” see Vega, 801 F.3d at 90
(quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57), and therefore constitute adverse
employment actions.
3. Causal Connection Between Adverse Action and Protected Activity
In order to survive a motion to dismiss, “a plaintiff must plausibly plead a connection
between the [adverse employment action] and his engagement in protected activity.” Vega, 801
F.3d at 90. “[FJor an adverse retaliatory action to be ‘because’ a plaintiff made a charge, the
plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse
action.” Id. (citing Nassar, 570 U.S. at 362). □

“[A] plaintiff can indirectly establish a causal connection to support a discrimination or
retaliation claim by showing that the protected activity was closely followed in time by the
adverse employment action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010) (quoting Gorman-Bakos v. Comell Coop. Extension of Schenectady, 252 F.3d 545, 554
(2d Cir. 2001)). However, “[w]here timing is the only basis for a claim of retaliation, and
gradual adverse job actions began well before the plaintiff had ever engaged in any protected
activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp.,
248 F.3d 87, 95 (2d Cir. 2001).
Plaintiff alleges that FDNY EEO told him that because he filed a claim with SDHR,

FDNY EEO would not investigate his claims. (Am. Compl. { 139.) Plaintiff also claims that the

nA

close timing between the protected activities (FDNY EEO, EEOC, and SDHR complaints) and
the adverse employment actions establishes a causal connection between the two. (Opp’n at 13.)
In particular, Plaintiff notes that he was required to appear for an interview just weeks after he
submitted his complaints to FDNY, EEOC, and SDHR. (Am. Compl. ff 144-45.) Further,
Plaintiff was informed that he would no longer receive a medal for his off-duty rescue less than
two months after filing his complaint in this court. (Id. Jf 3, 173.) Defendants argue, however,
that this timing is insufficient to establish retaliatory but-for causation. (Mem. at 12.) They
emphasize that the investigation of Arroyo’s sexual harassment claim began well before the
Plaintiff filed his EEOC, SDHR, and FDNY EEO claims. (Id. at 13.)
The court finds that Plaintiff has alleged facts that make it plausible that some of the
adverse employment actions would not have happened but for Plaintiff's protected activities.
Plaintiff alleges “he was told that, because he filed a complaint with the SDHR, the FDNY EEO
would not investigate his claims.” (Am. Compl. ff 145-46.) This is sufficient to make it
plausible that his filing of a claim with SDHR was a cause of FDNY EEO’s refusal to further
investigate Plaintiff's complaint filed with that office.
Plaintiff has also plausibly alleged a causal connection between Plaintiff filing his
complaint in this court and being denied the medal he was recommended to receive. Seven
weeks after filing his complaint in this court, Plaintiff was informed he would not receive any
medal. (Id. § 173.) This adverse action—plausibly sufficient to “dissuade a reasonable worker
from making . . . a charge of discrimination,” Vega, 801 F.3d at 90 (quoting Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 57)—“closely followed in time” Plaintiff's filing of discrimination
claims, Gorzynski, 596 F.3d at 110 (quoting Gorman—Bakos, 252 F.3d at 554). Therefore,
Plaintiff's allegations plausibly support retaliatory but-for causation for at least for the removal

ne

of Plaintiff's recommended medal. See Cifra 252 F.3d at 217 (noting that temporal proximity
can establish a causal connection between a protected activity and an adverse employment
action).
For the foregoing reasons, Plaintiff has successfully alleged facts making each element of
a retaliation claim plausible. Therefore, Defendants’ motion to dismiss Plaintiff's Title VII
retaliation claims as to Defendants the City and FDNY is DENIED and, as to the Supervisory
Defendants, is GRANTED.
H. ADA Claim (Count Eighteen)
Plaintiff brings his ADA claim against all Defendants. (Am. Compl. §§ 325-33.) A
plaintiff asserting discrimination under the ADA must show:
(1) [T]he defendant is covered by the ADA; (2) plaintiff suffers from
or is regarded as suffering from a disability within the meaning of
the ADA; (3) plaintiff was qualified to perform the essential
functions of the job, with or without reasonable accommodation;
and (4) plaintiff suffered an adverse employment action because of
his disability or perceived disability.
Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005).
Plaintiff alleges that he suffered disability discrimination because FDNY asked him to
appear for a hearing while he was on medical leave (Am. Compl. § 196), and because it denied
him his disability pension (Opp’n at 22; see also Am. Compl. § 179). Defendants contend,
however, that Plaintiff has not alleged facts indicating that Defendants took any action because
Plaintiff was disabled. (Mem. at 31.) Defendants also point out that Plaintiff himself stated that
his disability pension was denied because “of the contrived charge and ongoing extreme
prejudice and biased investigation against him.” (Am. Compl. J 179; see Mem. at 31-32.) As
Defendants note, this is a reason not based on Plaintiff's disability.

76

Defendants are correct that Plaintiff has not alleged facts that support even a minimal
inference of discrimination motivated by Plaintiff's disability. Therefore, Defendants’ motion to
dismiss Plaintiffs ADA claim is GRANTED.
I. New York State Executive Law Article 15 (NYHRL), and NYCRL §§ 40-c &
40-d (Counts Eight and Nineteen)
Plaintiff names all Defendants in Counts Eight and Nineteen. (Am. Compl. { 255-64,
315-19.) Plaintiff brings his NYHRL claim under § 296, which defines “unlawful discriminatory
practice[s]” in the state of New York. N.Y. Exec. Law § 296. “New York courts require the
same standard of proof for claims brought under the NYHRL as for those brought under Title
VIL.” Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d Cir. 1999). Additionally, “[flacts
sufficient to sustain a cause of action under [NYHRL §] 296 will support a cause of action under
[§] 40-c of the [NYCRL].”6 Hyman v. Cornell Univ., No. 15-CV-792, 2017 WL 1194231, at
*10 (N.D.N.Y. Mar. 30, 2017), aff'd, 721 F. App’x 5 (2d Cir. 2017) (quoting Ganzy v. Allen
Christian Sch., 995 F. Supp. 340, 350 (E.D.N.Y. 1998)).
Plaintiff has failed to make out employment discrimination, hostile work environment,
and constructive discharge claims under Title VII for discrimination based on race or gender, so
he likewise fails to make out an employment discrimination case under NYHRL and NYCRL.
See Leopold, 174 F.3d at 264 n.1.
However, Plaintiff has successfully alleged facts that plausibly support a Title VII
retaliation claim. Because NYHRL claims “require the same standard of proof. . . as [claims]
brought under Title VII,” his NYHRL retaliation claim likewise survives. See id. And because
“[flacts sufficient to sustain a cause of action under [NYHRL §] 296 will support a cause of

6 Section 40-d of the NYCRL is the provision that creates a cause of action based on violation of §40-c. Harty v.
Spring Valley Marketplace LLC, No. 15-CV-8190 (NSR), 2017 WL 108062, at *6 n.7 (S.D.N.Y. Jan. 9, 2017).

action under [§] 40-c of the [NYCRL],” Plaintiff has alleged facts sufficient to maintain his
NYCRL § 40-c and § 40-d claims. See Hyman, 2017 WL 1194231, at *10.
Moreover, unlike under Title VII, a plaintiffs supervisor or co-worker who “actually
participates in the conduct giving rise to the discrimination” may be individually liable under the
NYHRL. Feingold v. New York, 366 F.3d 138, 157-58 (2d Cir. 2004) (quoting Tomka, 66 F.3d

at 1317 (alteration adopted)). However, Plaintiff has failed to allege that any of the Individual
Defendants actually participated in the alleged discriminatory conduct. Plaintiff stated that
FDNY EEO failed to investigate his discrimination claim (id, JJ 145-46), and that he was
informed he would not be receiving the medal he had been recommended to receive (id. { 173),
but has provided no information about how any of the Individual Defendants were personally
involved in the conduct underlying those allegations. He has therefore failed to plead sufficient
facts to support his NYHRL § 296 and NYCRL § 40-c & 40-d claims of retaliation against the
Individual Defendants.
For the foregoing reasons, Defendants’ motion to dismiss the NYHRL Article 15 and
NYHRL § 40-c & 40-d claims of retaliation is DENIED as to the City and FDNY and
GRANTED as to the Individual Defendants.
J. NYCHRL (Counts Nine, Seventeen, and Twenty)
Plaintiff has named the City, FDNY, and the Individual Defendants as Defendants in
Count Nine. (Am. Compl. □□ 265-73.) He has named the City, FDNY, and the Supervisory
Defendants as Defendants in Counts Seventeen and Twenty. (Am. Compl. {J 320-24, 344-48.)
1. Legal Standard
The NYCHRL requires a separate analysis from Title VII claims. Mihalik v. Credit
Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (“[E]ven if the challenged
_ conduct is not actionable under federal and state law, federal courts must consider separately
| dg

whether it is actionable under the broader New York City standards.) Section 8-107(a) of the
NYCHRL states that it is an “unlawful discriminatory practice... [f]or an employer . . . because
of the actual or perceived age, race, .. . gender, [or] disability ... [t]o discriminate against such
person in... conditions or privileges of employment. N.Y.C. Admin. Code § 8-107. The
employer’s actions need not be “severe or pervasive” to amount to an “adverse employment
action,” as they must for federal and state claims. See Mihalik, 715 F.3d at 113-14. Because of
the “uniquely broad and remedial purposes of the [NYCHRL]” the court must focus on “unequal
treatment based on gender.” Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 40 (N.Y. App.
Div. 2009). A similar inquiry applies based on other identified characteristics. See N.Y.C.
Admin. Code § 8-107.
“Section 8—107(7) of the NYCHRL prohibits employers from ‘retaliating or
discriminating in any manner against any person because such person has opposed any practice
forbidden under this chapter.’” Mihalik, 715 F.3d at 112 (quoting N.Y.C. Admin. Code § 8-
107(7) (alterations adopted)). To state a NYCHRL retaliation claim, a plaintiff has to show he
took “action opposing her employer’s discrimination and that, as a result, the employer engaged
in conduct that was reasonably likely to deter a person from engaging in such action.” Reed v.
Nike, Inc., No. 17-CV-1515 (LGS), 2019 WL 2327519, at *3 (S.D.N.Y. May 31, 2019) (citing
Mihalik, 715 F.3d at 112).
A plaintiff must show a causal connection between the employer’s conduct and the
plaintiff's opposition to employer’s discrimination. Brightman v. Prison Health Serv., Inc., 970
N.Y.S.2d 789, 791 (N.Y. App. Div. 2013). Temporal proximity can, on its own, establish the
requisite causation.’ Reed, 2019 WL 2327519, at *4; see also Kaplan v. N.Y.C. Dep’t of Health

7 “Some courts have held that temporal proximity does not, in itself, establish causation.” Reed v. Nike, Inc., No.
17-CV-7575 (LGS), 2019 WL 2327519, at *4 (S.D.N.Y. May 31, 2019). But those cases are distinguishable from
70

& Mental Hygiene, 38 N.Y.S.3d 563, 566 (N.Y. App. Div. 2016) (explaining that alleging that
an adverse employment action occurred just two weeks after the employee engaged ina
protected activity sufficiently alleged causation); Feliciano v. City of New York, No. 14-CV-
6751 (PAE), 2015 WL 4393163, at *10 (S.D.N.Y. July 15, 2015) (saying that “mere temporal
proximity” on its own can demonstrate causation when the protected activity and adverse
employment action happen “very close together” (quotation marks and citation omitted)).
2. Application

Defendants claim that, even under the NYCHRL, Plaintiff has failed to allege that their
“conduct [wa]s caused by a discriminatory motive.” (Mem. at 11 n.4.) Plaintiff answers that he
was “treated less well than other employees” because of his gender. (Opp’n at 11 (quoting
Mihalik, 715 F.3d at 110).) He contends that the fact that FDNY investigated Arroyo’s claim of
sexual harassment and ignored his complaints indicate that he was treated differently because of
his race, gender, and disability.
Plaintiff has failed to allege facts that could plausibly support a claim that he was “treated
less well than other employees” because of his gender, race, or disability. See Mihalik, 715 F.3d
at 110. Plaintiff's and Arroyo’s situations are not analogous. Arroyo reported harassment that
Plaintiff allegedly directed at her. (See Am. Compl. 7 132.) FDNY was obligated to investigate
this claim. See Malik, 202 F.3d at 105 (“[A]n employer’s investigation of a sexual harassment
complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to

this one. For example, in Forrester v. Corizon Health, Inc., the Second Circuit said, “evidence of temporal proximity
alone is not enough to demonstrate retaliation under the NYCHRL,” 752 F. App'x 64, 66 (2d Cir. 2018) (summary
order). But Forrester was a non-precedential summary order, and this statement was based on Chen v. City Univ. of
New York, an earlier Second Circuit case. 805 F.3d 59 (2d Cir. 2015). In Chen, temporal proximity did not
_ establish causation when an assistant professor was dismissed after engaging in a protected activity because the
' university made employment decisions for all of its assistant professors at that time. Id. at 72. The case before the
court involves no such universal staffing decision nor FDNY-wide decisions to reduce or remove recommended
awarded medals. See Reed, 2019 WL 2327519, at *4 (observing that “Chen cannot fairly be read to preclude
categorically a plaintiff from establishing causation based on temporal proximity”).
ary

investigate may allow a jury to impose liability on the employer.”) In contrast, Plaintiff was
reporting something he had heard about through the grapevine, something that the FDNY was
not, to the court’s knowledge, required to investigate. (Am. Compl. [{ 84-86.) Plaintiff has
likewise failed to allege facts that support an inference of employer action “caused by a
discriminatory motive”—.e., an action motivated by Plaintiff’s gender, race, or disability. See,
e.g., Mihalik, 715 F.3d at 110. Without additional facts, Arroyo’s and Plaintiffs complaints are
not sufficiently analogous to plausibly establish differing treatment based on gender, race, or
disability. Plaintiff has therefore failed to support his NYCHRL employment discrimination
claims.
However, Plaintiff has made out a NYCHRL claim sufficient to survive a motion to
dismiss because he has alleged facts that make a plausible retaliation claim under NYCHRL § 8-
107(7). For the same reasons for which Plaintiff's Title VII retaliation claim survives, Plaintiff
has also successfully pled facts indicating that Defendants “engaged in conduct that was
reasonably likely to deter a person from” engaging in opposition to discrimination. Mihalik, 715
F.3d at 112. Like the Title VII retaliation claim, the causation element of Plaintiff’s NYCHRL
retaliation claim is plausibly alleged due to the proximity of the removal of Plaintiff's awarded
medal and his filing of the instant case. However, Plaintiff has not pleaded facts demonstrating
any individual involvement of the Individual Defendants such that they could be liable for
retaliation under NYCHRL.
For the foregoing reasons, Defendants’ motion to dismiss Plaintiff's NYCHRL claim is
DENIED as to the City and FDNY and GRANTED as to the Individual Defendants.

a1

K. First Amendment Claims (Counts Ten and Eleven)
Plaintiff brings free speech retaliation and prior restraint claims against the City, FDNY,
and the Supervisory Defendants pursuant to the First Amendment. (Am. Compl. {J 274-95.)
Plaintiff alleges that his report of Arroyo’s sexual activities and his complaint to the
EEOC are protected by the First Amendment and that he has successfully alleged retaliation and
prior restraint causes of action. (Am. Compl. JJ 238, 249.) However, First Amendment
protections usually do not apply “when a public employee speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only of personal interest.” Connick v.
Myers, 461 U.S. 138, 147 (1983). “Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and context of a given statement.” Id. at 147-
48. When employees speak out about issues of public concern, that speech is protected by the
First Amendment. See Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121, 124-25 (2d
Cir. 2005).
“[W]hen a public employee’s speech regards the existence of discrimination in the
workplace, such speech is a matter of public concern.” Konits, 394 F.3d at 125. However, if an
employee raises the issue of discrimination to “further his own employment interest,” his speech
is likely not protected by the First Amendment. White Plains Towing Corp. v. Patterson, 991
F.2d 1049, 1059 (2d Cir. 1993). In other words, if a “[p]laintiff does not allege that his
complaints [about discrimination] focused on anything beyond consequences he personally
suffered at the hands of [d]efendants,” that speech does not “address a matter of public concern.”
Wu v. Metro-North Commuter R.R., No. 14-CV-7015 (LTS), 2015 WL 5567043, at *6
(S.D.N.Y. Sept. 22, 2015).

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Moreover, “when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the Constitution does
not insulate their communications.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Some
factors the court should consider when determining whether the speech in question was pursuant
to an employee’s official duties are: “the plaintiff's job description; the persons to whom the
speech was directed; and whether the speech resulted from special knowledge gained through the
plaintiff's employment.” Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486, 506 (E.D.N.Y.
2011) (quoting Caraccilo v. Vill. of Seneca Falls, 582 F. Supp. 2d 390, 405 (W.D.N.Y. 2008)
(quotation marks omitted)).
Defendants claim that Plaintiffs complaint of discrimination to the EEOC and SDHR
“concermed purely internal and personal grievances” and did not address matters of public
concern. (Mem. at 22.) Defendants state that Plaintiff only knew about Arroyo’s alleged
actions, and chose to report those actions, because of his role at FDNY and his concern for
following internal policies. (Mem. at 22.) Therefore, according to Defendants, Plaintiff's report
about Arroyo’s alleged activity was “pertaining to [his] official duties” and was not protected by
the First Amendment. (Id. (quoting Weintraub v. Bd. of Educ., 489 F. Supp. 2d 209, 221
(E.D.N.Y. 2006)).)
The court agrees that Plaintiff spoke “pursuant to [his] official duties,” Frisenda, 775 F.
Supp. 2d at 506 (citing Caraccilo, 582 F. Supp. 2d at 405), and about “consequences he
personally suffered,” Wu, 2015 WL 5567043, at *6, instead of about matters of public concern.
Although Plaintiff states that he reported “relentless department-wide gender-based, racial and/or
color-based discriminatory conduct by the Defendants” by filing his complaint with the EEOC
(Am. Compl. J 239), he does not provide any indication that he made this complaint for any

22

reason other than to remedy the alleged discrimination against him personally, nor that his
complaint even mentioned “anything beyond consequences he personally suffered at the hands of
[d]efendants.” See Wu, 2015 WL 5567043, at *6.
Defendants’ motion to dismiss Plaintiff's First Amendment claims is therefore
GRANTED.
L. Breach of Contract (Count Fourteen)
Defendant has named the City, FDNY, DeBlasio, and Nigro as defendants in his breach
of contract claim. (Am. Compl. [§ 305-09.) Under New York law, a breach of contract claim
requires: “(1) the existence of an agreement; (2) adequate performance of the contract by the
plaintiff; (3) breach of contract by the defendant; and (4) damages.” Swan Media Grp.. Inc. v.
Staub, 841 F. Supp. 2d 804, 807 (S.D.N.Y. 2012) (citing Eternity Global Master Fund Ltd. v.
Morgan Guar. Trust Co., 375 F.3d 168, 177 (2d Cir. 2004)). “Moreover, New York law and the
Twombly—Iqbal standards of federal pleading require a complaint to identify, in non-conclusory
fashion, the specific terms of the contract that a defendant has breached.” Spinelli v. Nat’]
Football League, 96 F. Supp. 3d 81, 131 (S.D.N.Y. 2015). “Otherwise, the complaint must be
dismissed.” Id. (citations omitted).
The court must “accept the factual allegations of a complaint as true and draw all
inferences in the pleader’s favor, [but] it is ‘not bound to accept as true a legal conclusion
couched as a factual allegation.”” Swan Media Grp., 841 F. Supp. 2d at 807 (citing Iqbal, 556
U.S. at 678). Here, Plaintiff alleges that there were “oral and written contracts with Defendants

... including [] those contracts formed on the basis of agreements comprised of collective
bargaining agreements, employee manuals and custom and practice.” (Am. Compl. 7 306.) But
those allegations are legal conclusions and the court is not bound to accept them as true. See

aA

Iqbal, 556 U.S. at 680. Moreover, Plaintiff has not described any of the terms of the alleged
contract, much less “the specific terms of the contract that a defendant has breached.” See
Spinelli, 96 F. Supp. 3d at 131. Therefore, his claims must be dismissed. See id,
Even if the court did accept that Plaintiff is covered by a collective bargaining agreement,
that would not provide standing for him to sue for breach of contract because an individual
plaintiff usually does not have standing to sue on a collective bargaining agreement; rather, he
can enforce a collective bargaining agreement only through the union. Hunt v. Klein, No. 10-
CV-02778 (GBD), 2011 WL 651876, at *2 (S.D.N.Y. Feb. 10, 2011), aff'd, 476 F. App’x 889
(2d Cir. 2012). “[O]nly when the union fails in its duty of fair representation can the employee
go beyond the agreed procedure and litigate a contract issue directly against the employer.” Id.
at *2 (citing Bd. of Educ. v. Ambach, 517 N.E.2d 509, 511 (N.Y. 1987)). Plaintiff has not
alleged any facts indicating such a failure on a union’s part here, and so does not have standing
to sue on the basis of any collective bargaining agreement.
Therefore, Defendants’ motion to dismiss Plaintiff's breach of contract claim is
GRANTED.
M. Tortious Interference with aContract (Count Twelve)
Plaintiff brings a claim of tortious interference with contract against Arroyo and Russo.
(Am. Compl. {J 296-99.) In order to state a claim for tortious interference with contract under
New York law, a plaintiff must show: “(1) the existence of a contract between plaintiff and a
third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional inducement of
the third party to breach or otherwise render performance impossible; and (4) damages to
plaintiff.” Albany Molecular Research, Inc. v. Schloemer, No. 10-CV-210, 2010 WL 5168890,

35

at *6 (N.D.N.Y. Dec. 14, 2010) (citing Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y.
1993)).
As noted above, Plaintiff has failed to sufficiently allege the existence of a contract. This
claim thus cannot go forward, and the court GRANTS Defendants’ motion to dismiss Plaintiff's
tortious interference with contract claim.
Intentional Infliction of Emotional Distress (Count Thirteen)
Plaintiff names only Defendants Leonard, Russo, and Arroyo in his intentional infliction
of emotional distress claim. (Am. Compl. 301-04.) Defendants argue that the claims against
the individual Defendants are invalid because the City of New York is required to indemnify the
named individual Defendants, and Plaintiff failed to file notice of claim against individual
Defendants within ninety days, as required under state law to proceed with a tort claim against
City employees. ® (Mem. at 26.)
1. Legal Standard
Under New York law, a plaintiff claiming intentional infliction of emotional distress
must plead: “(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress,
(3) a causal connection between the conduct and the injury, and (4) severe emotional distress.”
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). “[A] claim for intentional
infliction of emotional distress must satisfy an ‘exceedingly high legal standard.’” DiRuzza v.
Lanza, 685 F. App’x 34, 36 (2d Cir. 2017) (summary order) (quoting Chanko v. Am. Broad. Cos.
Inc., 49 N.E.3d 1171, 1179 (N.Y. 2016)). Liability for intentional infliction of emotional distress

® Defendants also contend that intentional infliction of emotional distress claims are barred for public policy reasons
against the City of New York and FDNY because they are “governmental entit[ies.]” (Mem. at 26.) This is
irrelevant because these are not Defendants named in the claim.

36

arises “only where the conduct has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Chanko, 49 N.E.3d at 1178 (citing Howell v. N.Y. Post
Co., Inc., 612 N.E.2d 699, 702 (N.Y. 1993)). Even “[a]ctions ‘likely [to] be considered
reprehensible by most people’ are not sufficient.” DiRuzza, 685 F. App’x at 37 (citing Chanko,
49 N.E.3d at 1179).
Moreover, to bring civil tort action against an employee of New York City, a Plaintiff
must file a “notice of a claim . .. upon the city . . . within ninety days after the claim arises.”
N.Y. Gen. Mun. Law § 50-k. Section 50-e specifies when and how notice must be served. See
generally N.Y. Gen. Mun. Law § 50-e. However, “service of a notice of claim upon the
corporation is ‘required only if the [city] has a statutory obligation to indemnify [the
employee].’” Hardy, 748 F. App’x at 381 (emphasis in original) (citing N.Y. Gen. Mun. Law
§ 50-e(1)(b)). And “[a] municipality is required to indemnify its employee only if his liability
arose from conduct ‘within the scope of his employment.’” Id. (citing Jean-Laurent v. Hennessy,
No. 05-CV-1155 (JFB), 2008 WL 3049875, at *19 (E.D.N.Y. Aug. 1, 2008)). To be
indemnified, the employee must not have been acting ““‘in violation of any rule or regulationof
his agency’ and the injury [must not have resulted] from ‘intentional wrongdoing or recklessness
on the part of the employee.’” Hardy, 748 F. App’x at 381-82 (citing Jean-Laurent, 2008 WL
3049875, at *19).
2. Application
Plaintiff has not alleged facts indicating that Defendants Leonard, Russo, and Arroyo
3 acted outside the scope of their employment, in violation of a rule, or in any way that constituted
wrongdoing. Thus, based on the allegations in the Amended Complaint, these three Defendants

279

were acting “within the scope of [their] employment” and were not “in violation of” rules or
regulations, nor were they engaging in “intentional wrongdoing.” Hardy, 748 F. App’x at 381-
82 (citing Jean-Laurent, 2008 WL 3049875, at *19). Plaintiff was therefore required to serve a
notice of claim on the city in order to bring an intentional infliction of emotional distress claim
against named Defendants. See Jean-Laurent, 2008 WL 3049875, at *19. Plaintiff has not
alleged that he did so, nor has he provided any response to Defendants’ arguments on this issue.
In any event, no facts alleged in the Amended Complaint rise to the level of
“outrageous[ness]” required to sustain an intentional infliction of emotional distress claim.
Plaintiff alleges that Defendants Arroyo and Russo “set out on a willful, malicious, extreme and
outrageous course of action to intentionally cause Plaintiff severe emotional distress.” (Am.
Compl. § 302.) These allegations are conclusory and directly mirror elements of an intentional
infliction of emotional distress claim. See Bender, 78 F.3d at 790. The court is therefore not
bound to accept them as true, see Swan Media Grp., 841 F. Supp. 2d at 807 (citing Iqbal, 556
U.S. at 678), and finds that Plaintiff has failed to allege any facts supporting his claim of
intentional infliction of emotional distress.
For these reasons, the Defendants’ motion to dismiss Plaintiff's intentional infliction of
emotional distress claim is GRANTED.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED IN PART and
DENIED IN PART. Defendants’ motion is denied with respect to the following claims: (1) Title
VII retaliation against FDNY and the City, (2) NYHRL and NYCRL retaliation against FDNY
and the City, and (3) NYCHRL retaliation claim against FDNY and the City. The Clerk of Court

38

is respectfully DIRECTED to terminate Defendants Arroyo, Russo, Leonard, de Blasio, and
Nigro from the case.
The parties are DIRECTED to contact the chambers of Magistrate Judge Ramon E. Reyes
regarding the next step in this case.
SO ORDERED.
robb □□□□□□□
Dated: Brooklyn, New York ICHOLAS G. GARAUFI
August &, 2019 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10658895. Public record. Not legal advice.