Henvill v Metropolitan Transp. Auth.
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Henvill v Metropolitan Transp. Auth. 2017 NY Slip Op 31559(U) July 21, 2017 Supreme Court, New York County Docket Number: 162088/2014 Judge: Shlomo S. Hagler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 1] NYSCEF DOC. NO. 33 \ INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 17 --------~--------~----------------~---x WINSTON HENVILL, Index No.: 162088/2014 Plaintiff, -against"""' DECISION/ORDER METROPOLITAN TRANSPORTATION'AUTHORITY, Defendant. --------------------------------------x HON. SHLOMO S. HAGLER, J.S.C.: This action arises out of plaintiff Wihston Henvill'i claims that he was subject to discrimination, retaliation, hostile work environment and retaliatory hostile work environment in violation of the New York State Human Rights Law ("NYSHRLn) and the New York ~ity Human Rights Law ("NYCHRLn). Defendant Metropolitan Transportation Authority ("MTAn) moves, pursuant to CPLR 3211 (a) (5) and (7), for an order partially dismissing the complaint. BACKGROUND AND FACTUAL ALLEGATIONS Prior to being terminated in April 2015, plaintiff was employed by the MTA as a police officer. African-American, had been working for the 14 years prior to his termination. Plaintiff, ·who is M~A for approximately According to plaintiff, during the course of his employment, he was subject to discrimination, a hostile work environment and retaliation~ as a result of his race/color, and because he engaged in protected activity. Plaintiff claims.that he was treated differently than his Caucasian co-workers, who did not 2 of 30 eng~ge in protected [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 2] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 activity, and that the supervisors who participated in the discriminatory conduct were all Caucasian. He provides examples, as set .forth below, of the MTA's allegedly unlawful discriminatory practices: a) In "lat~ 2008," plaintiff alleges that he was subject to an "unjustified and illegitimate investigation" for not properly documenting summonses·. In September 2009, as a result of the investigation, plaintiff was placed on a "base post assignment" (Amended Verified Complaint [the "Aniended Complaint"], ! 15). According to plaintif~; this is "considered a punishment assignment" (Id). Plaintiff was assigned to the base post for approximately one year, during which he was "deprived of overtime, although overtime wa~ given to junior officers" (Id.t ! 16). Plaintiff alleges that Caucasian officers, who "have committed far worse infractions," had not been involuntarily placed on a base post (Id.,., 17). b) On October 20, 2009, plaintiff received a Notice of Intent to Discipline as a result of failing to properly document vehicle and traffic law summonses. Plaintiff states that in or about May 2010, he was compelled to forfeit sixty hours of accrued vacation time as a result of this disciplinary notice (Id., ! 18). c) On March 25, 2010, plaintiff received another Notice of Intent to Discipline as. a result of improperly documenting summonses and failing to notify the Communications Unit while making traffic stops. As a result, plaintiff was subsequently disciplined and surrendered more accrued time. He claims that "this said noti6e was unfair in that C~ucasian officers perform car stops that do not adhere to the Patrol Guide. These Caucasian officers are not disciplined and .are not required to account for theii actions as was plaintiff."· Plaintiff ,alleges he was disciplined and therefore was "compelled to surrender additional accrued time" (Id., ! 19). d) In October 2010, plaintiff was assigned to the base post again, as a iesult of issuing moving violations while working at a "fixed post." According to plaintiff, under similar circumstances, Caucasian -2- 3 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 3] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 officers are not assigned to the base post (Id., '20). e) On November 9, 2011, plaintiff received a "Letter of Instruction" as a result of losing a memo book. Plaintiff believes that "[t]here are similar or worse occurrences committed by Caucasian officers and [the MTA] does nothing" (Id.,' 21). f) On November 9, 2011, plaintiff received a "Command Discipline" from his supervisor, Police Lieutenant Lee Dittrich ("Dittrich"), "because he had allegedly accepted two tours of overtime on the same da:y, in different commands" (Id., ' 22) . ·Subsequently, piaintiff was su~pended from duty ~nd forfeited overtime duties as a result of this incident. Plaintiff believes that he was targeted for no justifiable reason, stating that Caucasian officers, including Officers Torone, Doscher, Scheck and. Pfeiffer, had not appeared for overtime assignments, yet were not given a Command Discipline (Id.). g) On January 9, 2012; as a result of allegedly abandoning his train partner, plaintiff received a Notice of Intent to Discipline. Plaintiff maintains that he did not do anything wrong and that other Caucasian officers, such as Officer Piwowarska, who take the train by themselves in similar circumstances, had not been disciplined (Id., '24). h) On February 1?, 2012, plaintiff was counseled for not handing in summonses in a timely manner. Plaintiff believes that other officers have not been disciplined for similar behavior (Id., '25). i) On FebFuary 25, 2012, plaintiff was required to wiite a memo as to why he was one hour late for the beginning of overtime. Plaintiff claims that Caucasian officers regularly report late for overtime with no consequences (Id., '27). j) On February 28, 2012, plaintiff issued three summonses to a wheel-chair bound individual. Plaintiff was required to write a memo explaining why·he issued the summonses. According to plaintiff, the summonses were valid, and he knows of no other officer who had to write a memo explaining why summonses were issued. Plaintiff was issued a Command Discipline for this incident (Id., '26). -3~ 4 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 4] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 k) On February 27, 2012, plaintiff was told to report to Internal Affairs in his civilian clothes. Plaintiff claims th~t this is "highly irregular," and as a result he had to "change his tour" (Id., ! 28). 1) On March 12, 2012, plaintiff was advised that he no longer was allowed to issue summonses. He is unaware of any officer having these duties taken away (Id., ! 2 9) . m) According to plaintiff, although at least six other Caucasian officers received DWI, standard field . sobriety testing and MP-5 training, he was denied this training that he should have received in 2IT11 (Id., ! 31) . In addition, plaintiff alleges that he was subject to a hostile work environment. He provides an example of how, in "2011," he was required to write a memo· about an incident that occurred months earlier and then asked by a sbpervisor to provide more information about the incident. Plaintiff's supervisor then "threatened plaintiff with iniubordination" and did not allow him to speak to his union representative prior to signing the memo (Id.,! 30). In January-2012, plaint~ff filed a discrimination claim with the U.S. Equal Employment Opportunity Commission ("EEOC") and served a Notice of 'Claim on th~ MTA. 1 On or about May 4, 2012, plaintiff filed a supplemental charge of discrimination with the EEOC and served a supplemental Notice of Claim· on the MTA The MTA advises that plaintiff_ filed a written charge of discrimination with the EEOC on January 11, 2012 and served a Noti~e of Claim on the MTA on J~nuary 10, 2012. It states that plaintiff misidentifies these dates as January 9, 2012. -4- 5 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 5] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 (Affirmation in Opposition, ' ' 13-14; No~ice of Motion, Affirmation of Counsel, at 9, fnt 3). On June 17, 2013, plaintiff received a Notice of Intent to Discipline. Such notice set forth, in pertinent part, that the MTA sought to terminate plaintiff as a result of his behavior in relation to the disappearance of a supervisor's memo book. Plaintiff denies the allegations, stating that there was no just cause for dismissal and that dismissal was excessive (Amended Complaint, ' 34). An arbitration hearing was held and, in an award dated April 24., 2015, plaintiff's termination was upheld (Id. I ' 35) . Plaintiff believes that his dismissal was discriminatory and retaliatory, ·and that defendant, by its actions created a hostile work environment (Id., ' ' 42, 44). He states that many Caucasian police officers, who had committed far more egregious acts, or who had not terminated (Id., ~ngaged in protected activity, were not '43). In plaintiff's first cause of action, he contends that .the MTA's actions were in violation of the NYSHRL, in that he was discriminated against and subject to a hostile work environment, based on his ra~e/color.. He states that he was treated differently than other employees on account of his race/color (Id., ':!!' 42-43). Plaintiff alleges that defendant discriminated against him with respect to compensation, terms, conditions and -5- 6 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 6] INDEX NO. 162088/2014 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/25/2017 privileges of employment. (Id., Plaintiff's second cause ']!· 42) . 2 . of·~ction claims that, similar to the ;allegations set forth in the first cause of action, the MTA's . \ also vio~ated the NYCHRL by_ engaging in unlawful discriminatory practices and-subjected plairitiff to a hostile woik.environment due to plaintiff's race/color (id., ·<J[<J[ 50-56). · The third cause of action claims that the actions taken by . the MTA against him after January 2012, const~tute an unlawful employment practice due to plaintiff's protected activity in violation of the NYSHRL. Plaintiff also alleges that he has been subjected to a hostile work environment because of this protec;:ted activity (Id., <J[<J[ 58-65). Plaintiff's fourth cause of action based on the same allegatioris as set fotth in the third cause of action, alleges violations of the NYCHRL. Procedural History On October 24, 2013, prior to commencing this action, pl~intiff filed an action (the "Federal Action") in the United States District Court for the Southern District of New York ("District Coutt") against the MTA and nine individual defendaht~, alleging federal and state claims of race-based discrimination, hostile work environment and retaliation. 2 On The :Amended Complaint alleges that plaintiff engaged in protected· activity by·filing. the EEOC charge ahd the Notices of Claim (Id., <J[ 9) -6- 7 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 7] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 July 9, 2014, following oral argument, the District Court granted the defendants' motion to dismiss, but permitted plaintiff to request leave to amend his complaint (Notice of Motion, Exhibit "C"). Plaintiff subsequently sought leave to amend his federal complaint, attaching a proposed amended complaint ("PAC"), asserting claims against the MTA only for violations of Title VII of the Civil Rights Act of 1964~ 42 USC 2000 et seq. § (Title VII), the NYSHRL and NYCHRL. 3 By Order, dated October 10, 2014, the District Court denied plaintiff's leave to amend his complaint as futile on grounds that the PAC failed to' state a claim (Notice of Motion, Exhibit "E"). The District Court dismissed the Title VII claims but i t . d~clined . . to exercise supplemental jurisdiction.over plaintiff's NYSHRL and NYCHRL claims. The District Court held that the discrimination claim must be dismissed "given the absence of factual allegations .in support of an adv.erse employment action and an inference of discriminatory intent" (Id., Henvill v Metropolitan Transp. Auth., 2014 WL 5375115, *2, 2014 US Dist LEXIS 149066, ~3 (SD NY 2014). The District Court .identified the complained-of actions, namely "[plaintiff's] reassignments to a The claims and alleged occurrences of discriminatory·pra~tices in the federal action ~re identical to the ones alleged in plaintiff's amended State Court complaint. However, the federal action does not contain allegations related to plaintiff's termination, as that occurred in April 2015, which was after the federal action was corrimenced in October 2013. 8 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 8] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 base post position; his receipt of various disciplinary actions in November 2011 arid January 2012; the determination in March 2012 that he could no longer issue summonses; and the denial of training in 2011'' and found that such fail to constitute employment actions" (Id. at *2) . "ad~erse ..The District Court noted that plaintiff failed to show how these alleged actions by defendant "materially changed his terms of employment or job responsibilities" (Id. at *2}. With respect to the discrimination claims, the District Court concluded, "Plaintiff fails to link the purported adverse employment actions to any race-based discriminatory motive. Plaintiff's proposed Amended Complaint continues to rely on the mere conclus~ry allegation that, because Plaintiff belie_ves that he was treated differently than some of his Caucasian colleagues, his employer must have discriminated against him on the basis of his race-despite this Court's repeated warnings during 6ral argument that such an argument was by itself inadequate to show an inference of discriminatory intent. (See, e.g., July 9, 2014 Tr. 48:16-24, 49:9-18, 50:2-7.) In fact, Plaintiff's unsupported pleading does not explain how these actions were racially motivated, as opposed to legitimate consequences following regular workplace monitoring and review". (Id. at *2, [footnotes omitted]). In. addition, the District Court found that plaintiff could not sustain a cause of action for hostile work environment. .It held,· among other things, that "nowhere in the Amended Complaint does Plaintiff demonstrate-although he is required to do so-that the incidents of which he complains were the result of racial bias or discrimination on Defendant's part" (Id. at *3). The District Court noted that the conduct was neither severe nor -8- 9 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 9] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 pervasive, consisting latgely of reprimands in iscilated incidents over four years. The District Court stated "[p]laintiff's sweeping assertions that.he suffered a hostile work environment because of his race, without more, are insufficient to show· a workplace 'permeated with discriminatory intimidation" ~Id.): It further dismissed the retaliatory hostile work environment claims, stating that this claim is governed by the same standard as the hostile work environment claim. With respect to plaintiff's pr~posed retaliation claim, the District Court stated that, for purposes of a_retaliation claim, "actions are deemed adverse if they ate harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination" (Id. at *3) (internal quotation marks and citation omitted}. The District Court also found that plaintiff was unable to establish causation, given that he.received numerous ,admonitions "concerning his workplace performance prior to £iling the Notice of Claim on January 10, 2012" (Id. at *4). It found, in pertinent part: "Similar to Plaintiff's discrimination cl~im, Plaintiff's retaliation claim identifies employment actions that took place after the January 10, 2012 filing of a Notice of Cla~m which amount to·minor disciplinary actions. The remaining incidents in Febr~ary, March, ·ahd May 2012 do not constitute an adverse employment action because Plaintiff has not pleaded sufficient facts concerning the resulting harm he suffered, let alone why these actions would have dissuaded Plaintiff from pursuing his discrimination 10 of 30 -9- [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 10] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 claim" (Id. at *3). Shortly thereafter, on· December 8, 2014·, plaintiff commenced· the instant action in State Court. After he was terminated, in April 2015, plaintiff amended his State Court complaint to allege that his termination was an additional act of discrimination and retaliation by tl)e MTA (Amended Complaint, Plaintiff appealed the District Court the dismissal. <f[<f[ 32-37). de~ision regarding Subsequently, on May 11, 2015, the Second Circuit affirmed the District Court's July 2014 determination granting the defendants' motion to dismiss plaintiff's employment discrimination complaint, ahd affirmed in part and, vacated and remanded in part, the District Court's October 10, 2014 judgment denying plaintiff's request for leave to amend the complaint (Notice of Motion, Exhibit "G" [Henvil) v Metropolitan Transp. Auth., 600 Fed Appx 38 (2d Cir 2015)]. At the outset, the Second Circuit held that plaintiff's claims in the PAC that were based on incidents occurrin~ between 2008 and October 2010 are time- barred and do not allege a "continuous practice and policy of discrimination" (Id. at *39). The Court affirmed the denial of plaintiff's motion to amend his claims for a hostile work environment. It further affirmed that the PAC failed to allege any facts that the deriial of training, Janu~ry 2012 Notice of Intent to Discipline and the threat of discipline "created 'a materially adverse change in the terms and conditions -10- 11 of 30 ot [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 11] INDEX NO. 162088/2014 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/25/2017 employment'" (Id. [internal citation omitted]). The Second Circuit Court further affirmed that there were no plausible claims for retaliation and held that by verbally counseling plaintiff I requiring him to go to Internal Aff air·s or write two memoranda, the ·MTA did not act in a way that "'w~ll might have dissuaded a reasonable worker from making or supporting a charge of discrimination'." Id. (internal citation omitted). The Second Circuit Court explained thatr with respect to plaintiff's request for leave to amend, "which the District Court denied on the ground that the proposed amended complaint (PAC) would not survive a motion to dismiss, we affirm the ruling as to most of [plaintiff's] Title VII claims" (Id.). The Second Circuit Court held, however, that the District Court erred in denying pl~intiff's request to amend "as it pertained to the race-based discriminat.ion claim regarding the command discipline issued by Lieutenant Lee Dittrich and the retaliation claim regarding the removal of Henviil's summons-issuing responsibilities" (Id). The Second Circuit remanded these two remaining Title VII claims back to. the District Court for further proceedings. The MTA now moves to partially dismiss only plaintiff's NYSHRL and NYCHRL claims alleged in the present action that are based on the same factual allegations that were found to be insufficient to state a cause of action under Title VII in the -11- 12 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 12] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 Second Circuit, based on collateral estoppel. Except for the allegations related to the Dittrich incident race-based discrimination claim, and the retaliation claim related to the March 2012 removal of summons-issuing responsibilities, the Second Court affirmed the District Court's determination that the allegations in the PAC were insuff iciertt to state a claim for discrimination, hostile work environment or retali~tion under Title VII. The MTA argues that standards for establishing a NYSHRL hostile work environment, discrimination or retaliation claim · under the NYSHRL mirror Title VII standards are identical. result, according to the MTA, because the issues alle~ed As a in the State Court action are identical to the issues that were raised and decided in the federal action, this Court should dismiss the NYSHRL claims that are grounded in the same allegations. The MTA further argues that, although the NYCHRL is to be construed more broadly than the NYSHRL, collateral estoppel should still apply because the claims are based on the same allegations that the Second Circuit already found to be insufficient to sl_lstain Title VII claims. In the alternative,. the MTA argues that the plaintiff's Amended Complaint should be partially dismissed for failure to state a cause of action under the NYSHRL and the NYCHRL. It further all~ges that plaintiff's NYSHRL and N~CHRL claims based ·-12- 13 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 13] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 on incidents that occurred prior to Octob.er 24, 2010 are timebarred, and should be dismissed. Although plaintiff's Amended Complaint was filed in July 2015, except for the new allegations related to plaintiff's termination in April 2015, the MTA maintains that the relevant date for statute of limitations purposes is October 24, 2013. 4 Plaintiff believes that the MTA has not met its burden to demonstrate the elements of collateral estoppel with respect to his NYSHRL and NYCHRL claims. "Since the issue of the propriety of the State and City claims were [sic] not decided against .plaintiff . . it cannot be said that collateral estoppel applies" (Affirmati6n in Opposition, .~ 55). Plaintiff further contends that the federal court's an·alysis of the plaintiff's Title VII claim cannot be applied to defeat the NYCHRL claim, as the standards are different. Plaintiff does not dispute the relevant date for determining the ~tatute of limitations, but argues that, based on the continuing violation doctrine, all of his claims should be considered timely. He alleges that the MTA's conduct constitutes "the occurrence of a whole pattern of activity," and that the statute of limitations should be tolled to the date of the last 4 October 24, 2013 is the date that plaintiff commenced his federal action, and then chose to .later assert his clai.ms in State Court after the·£ederal court declined to exercise supplemental jurisdiction over the NYSHRL and NYCHRL claims. -13- 14 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 14] INDEX NO. 162088/2014 NYSCEF DOC. NO. 33 wrongful act (Id. at RECEIVED NYSCEF: 07/25/2017 ffi 49). Plaintiff does not substantiate any of his claims but argues that, as all of his claims allegedly meet the liberal pleading standards, the MTA's motion to dismiss ~hould be denied. DISCUSSION Dismissal On a motion to dismiss pursuant to CPLR 3211, "the facts as alleged in the complaint [are] accepted as true, the plaintiff is [given] the benefit of every possible favorable inference," and the court Jnust determine simply "whether the facts as ·alleged fit within any cognizable legal theory" (Mendelovitz v Cohen, 37 AD3d. 670, 671 [2d Dept 2007]; see also P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N. V., 301 AD2d 373, 375 [1st Dept 2003]). "In addition, employment discrimination cases are themselves generally reviewed under notice pleading standards. For example under the Federal Rules of Civil Procedure, it has been held that a plaintiff alleging employment discrimination 'need not plead [specific facts establishing] a prima facie case of discrimination' but need only give 'fair notice' of the nature of the claim and its grounds" (Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009] [internal citation omitted]). NYSHRL The standards for evaluating discrimination, hostil~ work environment and retaliation cl~ims are identical under Title VII -14- 15 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 15] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 and the NYSHRL (see e.g. Kelly v Howard I. Shapiro & Assocs. Consulting Engrs., P. c., 716 F3d 10, 14 [2d Cir 2013] [" [t] he standards for evaluating hostile work environment qnd retaliation claims are identical under.Title VII and NYSHRL"]). Actions. to recover damages for alleged discrimination unaer the NYSHRL and the NYCHRL are subject to a three-year statute of limitations· (see CPLR 214 New York§ 8-502 (d}). (2); Administrative Code of the City ·of The standard for applying the continuing- violation doctrine to claims under Title VII and NYSHRL is governed by National R.R. Passenger Corp. v Morgan, 117 [2002] (Sotomayor v City of New York, 536 US 101, 862 F Supp 2d 226, 250 (ED NY 2012), affd 713 F3d 163 [2d Cir 2013]). Collateral Estoppel "Collateral estoppel i~ a doctrine b~sed on gen~ral notions of· fairness involving a p·ractical inquiry into the realities of the litigation; it should never be rigidly or mechanically applied" (Matter of Halyalkar v Board of Regents of .State of J:J. Y., 72 NY2d 261, 268-269 [1988] . [internal citation omitted]). Contrary to plaintiff's contentions, even when a federal court declines to exercise jurisdiction over state claims, those state claims can be barred by collateral estoppel when the federal court addresses issues that are identical to. those raised in the state claims (Sanders v Grenadier Realty, Inc., 102 AD3d 460, 461 [Pt Dept 2013]). -15- 16 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 16] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 "The doctrine of collateral estoppel applies where '[f]irst, the identical issue necessarily must have been decided in the prior action and be decisive of the. present action, and second, the party to be precltided from relitigatirig the issue . . . had a full and fair opporturiity to contest the prior determination'" (Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP, 116'AD3d 134, 138 [Pt Dept 2014) [internal quotation marks and citation omitted]). As set forth at length in the facts, the Second Circuit has already det~rmined that, except for a race-based dis6rimination claim regarding the command discipline involving Dittrich and the retaliation claim regarding the removal of summons-issuing responsibilities, plaintiff's allegations cannot support Title VII claims. The Second Circuit also found th~t claims based on incidents that ~c~urred outside the statute of limitations were time-barred, and that the continuing violations doctrine was not applicable to those claims. Plaintiff's allegations in this action are identical to those in the federal action, except for those related to his April 2015 termination, which the MTA is not seeking to dismiss at this time. "[T]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue" (Matter· of Press, 30 AD3d 154, 156 [Pt Dept 2006] [internal quotation marks and citation omitted]). -16- 17 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 17] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 The MTA has met its burden demonstrating that the issue in question, namely whether or not plaintiff can set forth claims under the NYSHRL, is identical and decisive to plaintiff's ability to plausibly state a cause of action under Title VII. In opposition, plaintiff is unable to establish that he lacked a full and fair opportunity to litigate the issue, based on the record. Therefore, the MTA's motion to partially dismiss plaintiff's NYSHRL claims on the ground of pollateral estoppel is granted. NYCHRL The doctrine of collateral estoppel also bars and precludes plaintiff from relitigating those NYCHRL claims that did not survive Title VII, in this· state court action. As the. identical issue has already been decided in the federal action, plaintiff is precluded from maintaining his NYCHRL claims based on those same allegations (see e.g. Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 515 [1st Dept 2016] (Court held that collateral estoppel precluded plaintiffs from "relitigating many 'strictly factual' issues underlying their [NYCHRL] claims," after federal court dismissed plaintiffs' federal and state discrimination claims and refused to exercise supplemental jurisdiction over plaintiff's NYCHRL claims)~ Continuing Violations ·For purposes of determining a continuing violation under the -17- 18 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 18] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 NYCHRL, "[o)therwise time-barred discrete acts can be considered timely where specific and related instances of discrimination are . permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice" (Sotomayor v City of New York, 862 F Supp 2d at 250 [internal quotation marks and citations omitted]). The Second Circuit found that the claims alleged between 2008 and 2010 were time-barred, as they fail to plausibly allege a continuous practice or policy of discrimination, and as such, these claims as presented in the instant action are dismissed based on co],lateral estoppel (See e.g. Peterkin v Episcopal Social Servs. of N.Y., Inc., 24 AD3d 306, 308 [1st Dept 2005) [NYSHRL and NYCHRL age discrimination claims dismissed as they had already been "actually litigated, squarely addressed and specifically decided,~ by the District Court's decision]). Even if this issue was not precluded by collater.al estoppel, the MTA's motion for dismissal would be granted with the incidents alleged prior to October 24, 2010. r~spect to Plaintiff fails to plead any facts to allege that the disciplinary actions ~rior to 2010 were part of a discriminatory practice or policy, and not merely legitimate consequences of his behavior. In addition, courts have found that negative performance evaluat~ons are discrete acts that do not trigger the continuing violations policy exception (see e.g. Dimitracopoulos v City of New York, -18- 19 of 30 26 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 19] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 F Supp 3d 200, 212 [ED NY 2014]}. Moreover, the disciplinary actioni were giv~n by at least two different supervisors, making each action a discrete act (Id. at 212) ("Later evaluations and letters to file by separate individuals are not part of the same continuing pattern of discriminatory conduct by a prior principal") . Discrimination Pursuant to the NYCHRL, as stated in Administrative Code 8-107 (1) § (a), it is an unlawful dtscriminatory practice for an employer to refuse to hire or employ or to f i~e or to discriminate against an individual in the terms, conditions or privileges of employment because of the individual's race ·Or color.· ) The NYCHRL is to be construed more liberally than its state or federal cotinterparts. The court must evaluate the claims with regard for the NYCHRL' s "uniquely broad and remedial purposes'; " (Williams v New York- City Haus. Au th., [pt Dept 200 9] (emphasis in original) ) . 61 AD3d 62, 66 "For HRL liability, therefore, the primary issue for a trier of fact in harassment cases, as in other terms and conditions cases, is whether the plaintiff has proven by a preponderance of the.evidence that [he] has been treated less well than other employees because of [his protected status]" (Id: at 78). Under the NYCHRL, when analyzing employment discrimination -19- 20 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 20] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 I claims, courts have reaffirmed the applicability of the burdenshi'fting analysis as developed in McDonnell Douglas Corp. v Green (411 us 192 (1973]), in addition to the mixed-motive analysis (See Hudson v Merrill Lynch & Co., Inc. Dept 2016] (138 AD3d at .514) [1st (internal quotation marks and citation omitted) ["A motion for summary judgment dismissing a City Human Rights Law claim· can be granted only if the defendant-demonstrates that it is entitled to summary judgment under both the McDopnell Douglas burden-shifting framework and the In the burden-shifting mixed~mdtive ~nalysis, framework"]) . 5 the plaintiff must set .forth that he or she "is a member of a protected class, was qualified for the position, and was terminated or suffered some other adverse employment acti-on, and that th~ discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" (Baldwin .v Cablevision Sys. Corp., 65 AD3d 961, 965 [l5t Dept 2009]). If the plaintiff i~ able to set forth a prima facie case of discrimination, then th~ burden shifts to the defendants to rebut the presumption by demoristrating nondiscriminatory reasons for 5 Although this motion is one for dismissal and not for summary judgment, the same burden shifting standards apply when analyzing claims made under NYCHRL. See e.g. Simmons-Grant v· Quinn Emanuel Urquhart & Sullivan, LLP (116 AD3d at 141) ("Although defendant's motion is not for summary judgment, once defendant established its nonretaliatory reason in the federal action, plaintiff was required to identify an issue of fact") . -20- 21 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 21] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 its employment actions (Id. at 965). If the employer meets this burden, the plaintiff must "prove that the legitimate reasons proffered by the defendant were me~ely a pretext for discrimination" (Id. [internal quotation marks and citation omitted]) . Under the mixed-motive analysis, "the employer's production of evidence of a legitimate reason for the challenged action shifts to the plaintiff the lesser·burden qf raising an issue as to whether the action was motivated at least in part by discrimination" (Melman v .Montefiore Med. Ctr., 98 AD3d 107, 127 (1st Dept 2012] [internal quotation marks and citations omitted]). In considering plaintiff's allegations that he was subject to discrimination, the District Court found that plaintiff failed to link the alleged adverse employment actions to any race-based discriminatory motive. Affirming all but one incident, the Second Circuit found that there were no facts alleged that would give rise to a plausible claim that plaintiff was disciplined in the remaining three instances, because of his race and color. Although the pl~ading standard is more permissive under the NYCHRL, plaintiff must still adequ~tely plead that the "conduct is caused at least in part by discriminatory or retaliatory motives . " (Mihali·k v Credit Agricole Cheuvreux N. Am., ·Inc., 715 F3d 102, 113 [2d Cir 2013]; see also Llanos v City of -21- 22 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 22] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 New York; 129 AD3d 620, 620 [Pt Dept 2015] ["Pl~intiff has not made any factual allegations that she was adversely treated under circumstances giving rise to an inference of discrimination, as required to state a claim for discrimination under the New York State and City Human Rights Laws"])~ This Court is aware that "courts must analyze NYCHRL claims separately and independently from any f~deral and state law claims, construing [its] provisions broadly in favor of discrimination plaintiffs to the extent that such a construction is reasonably possible" (Ya-Chen Chen v City Univ. of N.Y., F3d 59, 75 [2d Cir 2015] omitted]). 805 [internal quotation marks and citation However, ~ollateral estoppel may· still be applied in certain circumstances. For example, in Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP (116 AD3d at 140-141), the plaintiff was collaterally estopped from litigating NYCHRL claims in state court after federal court granted summary judgment in favor of the defendant as to the Title VII disciimination claims. The Court held, among other things, that "in opposition to defendant's collateral estoppel motion, plaintiff has not identified any evidence on the relevant issue that the court in the previous litigation overlooked. Thus, the frequent risk that evidence winds up being undervalued for City HRL purposes because it has been filtered through a title VII lens is not present here." In addition, as one court recently noted, "as to the -2223 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 23] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 standards of liability, in certain areas, courts have recognized that city law is more plaintiff-friendly than federal law . . But the Restoration Act did not provide that federal and city law may never be construed as coextensive" (Bivens v Institute for Community Living, 2016 US Dist LEXIS 13538, *3 [SD NY 2016] [internal citation omitted]). Nonetheless, the disposi ti ve issues· relevant to plaintiff's NYSHRL and NYCHRL claims are identical to the dispositive issues in plaintiff's federal. action: whether or not plaintiff has pled that his treatment was the result of a discriminatory animus. As these issues were resolved, and plaintiff had a full and fair opportunity to litigate and contest them in the federal action, ' plaintiff is precluded from asserting them again. Even if collateral estoppel did not apply, the remaining NYCHRL discrimination claims would be dismissed pursuant to CPLR 3211 (a) (7). Plaintiff claims that he was disciplined, or subjected to adverse actioni, while other Caucasian police officers were not. However, mere conclusory allegations that plaintiff was treated differently than other employees fail to demonstrate that the MTA's actions were motivated by race. Even construing the complaint liberally, plaintiff does not adequately plead that he was treated less well due,to his race (see e.g. Matter of Khan v New York City Health 600, 601 [1st Dept 2016] & Hosps. Corp., 144 AD3d [Court granted defendant's motion -23- 24 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 24] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 pursuant to CPLR 3211. ·(a) (5) dismissing the complaint as plaintiff "failed to support his contention that he was discriminated against on account of his tace, religion, and national origin with evidence of discriminatory animus on the part of any [defendant]"]); see also Godbolt v Verizon N.Y. 115 AD3d 493, 494 [l5t Dept 2014] analysis .applicable to City Inc., ("Even under the mixed-motive ~um~n Rights Law claims, plaintiff's claim fails, because there is no evidence from which a reasonable I factfinder could infer that [p~otected status] played any rcile in defendant's [actions]"). Hostile Work Environment Under the NYSHRL, a hostile work environment is present when "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of .the victim's employment and create an abusive working environment" (Forrest v Jewish Guild for the Blind, 3 NY3d 2 95, 310 [ 2004] [internal quotation marks and citation omitted]). · Under the NYCHRL, "the conduct's severity and pervasiveness are relevant only to the issue of damages. ·To prevail on liability, the plaintiff need only show differential treatment that she is treated 'less well' -- because of a discriminatory intent" (Mihalik. v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d at 110) [internal citation omitted]). -24- 25 of 30 "In order to establish a [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 25] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 retaliatory hostile work environment, a plaintiff must satisfy the same standard that is applied generally to hostile work environment claims regarding the severity of the alleged conduct" (Sclafani v PC Richard & Son, 668 F Supp 2d 423, 438 [ED NY 2009)). The District Court(Henvill v Metropolitan Transp. Auth., 2014 WL 5375115 at *3) found that plaintiff had not demonstrated, although required to do so, that the incidents.allegedly causing a hostile work environment~ "weie the result of racial bias or discrimination" on the part of the MTA. Again, even though the standard for pleading and proving a hostile work environment is broader under the NYCHRL, the prior action's explicit finding that there was no discriminatory animus, precludes and collaterally estops plaintiff from asserting his claims forhostile work environment and retaliatory hostile work environment under the NYCHRL. "The broader remediation available under the City law does not allow the Plaintif£ to dispense with linkin~ his claim of hostility to some attitude that the law forbids" (Williams v Metro-North Commuter R.R. Co., 2012 WL 2367049, *13, [SD NY 2012]; see also Llanos v City of New York, 129 AD3d at 620 ["Furthermore, plaintiff's failure to adeq.uately ·plead· discriminatory animus is fatal to her claim of hostile work environment"]). In any event, even if plaintiff's hostile work environment -25-. 26 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 26] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 claims that are the subject of this dismissal motion were not collaterally estopped, they would be dismissed for reasons. th~ same Plaintiff has failed to demonstrate how "discrimination was one of the motivating factors for the defendant's conduct" (Chin v New York City Hous. Auth., 106 AD3d 443, 445 [1st Dept 2013)). Although plaintiff speculates that he was treated less well than Caucasian officers, during a time in 2011 when he was threatened with a charge of insubordination, and after he filed his complaint with the EEOC, he has not adequately pled any discriminatory animus 6 (see e.g. Massaro v Department of Educ. of the City of N.Y., 121 AD3d 569, 570 [l5t Dept 2014) citations omitted] [internal· ["Plaintiff failed to adequately plead discriminatory animus, which is fatal to both her age discrimination and hostile ~ork environment claims under the State and City Human Rights Laws (HRL) . Indeed, her all~gations that she was 51 years old and was treated less well than younger teachers are insufficient to support her claims"]). Retaliation Under the NYCHRL, it is unlawful to retaliate or discriminate against someone because he or she opposed di'Scriminatory practices (Administrative Code§ 8-107 (7)). 6 Moreover, plaintiff's claims that he was subject to a retaliatory ho~tile work environment as a result of filing his charge with the EEOC are wholly unsupported in his complaint. -26- 27 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 27] INDEX NO. 162088/2014 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/25/2017 "[T]o make out a retaliation claim under the City HRL, the complaint must allege that: ( 1) [plaintiff] participated in a protected activity known to defendants; ( 2) [the MTA] took an action that disadvantaged him; and (3) a causal connection exists between the protected activity ar:id the adyerse action" (Fletcher v D~kota, Inc., 99 AD3d 43, 51-52 [1st Dept 2012]). Under the broader interpretation of the NYCHRL, "[t]he retaliation . . need not result in an ultimate.action adverse change . . . or in a,materially [but] must be reasonably likely to deter a person from engaging in protected activity.". § 8-107 Administrative Code (7). The Second Circuit already raised and addressed the issue of whether or not the MTA's actions would dissuade a reasonable worker from making a charge of discrimination. explicitly noted that ~ausation It also would be unfounded, given the numerous instances of discipline plaintiff received prior to commencing any protected activity. As plaintiff was given a full opportunity to litigate, including the oral argument, and many subsequent federal court determinations, t0e MTA is granted collateral estoppel partially dismissing the remaining claims of retaliation. In any event, even if plaintiff's claims for retaliation were not precluded by collateral estoppel, the MTA would be granted dismissal of the remaining claims for the reasons already -27- 28 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 28] NYSCEF DOC. NO. 33 specified. INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 In pertinent part, plaintiff cannot establish any connection between the EEOC complaint and any alleged adverse actions. Plaintiff had been receiving progressive discipline from 2008, well before he filed a charge with the EEOC (see e.g. Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 206-207 [Pt Dept 2015] [Plaintiff had no claim for retaliation under NYCHRL where th~re was "no evidence of a causal connection . all the discord - in scope, kind, and frequency - preexisted her internal. complaint. The discharge that was effected in 2009 was the culmination of continuous progressive discipline"]). Accordingly, the MTA's motion for partial dismissal is granted and plaintiff is precluded and estopped from maintaining his NYSHRL and NYCHRL claims that are based on allegations that the Second Circuit has already found to be insufficient to state a. cause of action for race-based discrimination, hostile work environment, .:r;:eta1iation and retaliatory hostile work environment under Title VIL CONCLUSION Accordingly, it is ORDERED, that the Metropolitan Transportation Authority's motion to dismiss Winston Henvill's NYSHRL and NYCHRL di·scrimination, retaliation, retaliatory hostile work environment and hostile work environment claims alleged in the present action -28- 29 of 30 [*FILED: NEW YORK COUNTY CLERK 07/25/2017 02:56 PM 29] NYSCEF DOC. NO. 33 INDEX NO. 162088/2014 RECEIVED NYSCEF: 07/25/2017 that ·are based on the same factual a~legations that were found to be insufficient to state a cause of action under Title VII in the Second Circuit, is granted7 ; and it is further ORDERED, that the remaining claims shall continue. Dated:. July 21, 2017 ENTER: . s. c. SHLOMO HAGLBR ...._, · .. 7 J.S.C. Again, at this time, the MTA is not seeking to dismiss the claims based on· plaintiff's ultimate termination in April 2015, the race-based Dittrich discipline incident discrimination claim or the retaliation claim involving the March 2012 removal of summons-issuing responsibilities~ 30 of 30 ....:29-
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