Summary
permitting consideration under the continuing violations doctrine of all actions relevant to NYCHRL discrimination claim
Summary of this case from Automatic Meter Reading Corp. v. New York CityOpinion
11-10-2016
Damon JAMES, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Respondent, Assistant Deputy Warden Mingo, et al., Defendants.
The Law Office of Fred Lichtmacher P.C., New York (Fred Lichtmacher of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Megan E.K. Montcalm of counsel), for respondent.
The Law Office of Fred Lichtmacher P.C., New York (Fred Lichtmacher of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Megan E.K. Montcalm of counsel), for respondent.
TOM, J.P., SWEENY, RICHTER, MANZANET–DANIELS, WEBBER, JJ.
Order, Supreme Court, New York County (Frank P. Nervo, J.), entered on or about April 2, 2015, which granted the motion of defendant City of New York to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously modified, on the law, to reinstate plaintiff's claims relating to facially timely allegations arising after July 25, 2011, as well as his claim relating to the alleged ongoing policy of preventing him from searching inmates, and otherwise affirmed, without costs.
Crediting the allegations in the complaint for purposes of this motion to dismiss, we find that plaintiff, a correction officer and captain during the relevant time periods, has adequately alleged a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law (see Anderson v. Edmiston & Co., Inc., 131 A.D.3d 416, 14 N.Y.S.3d 376 [1st Dept.2015] ; Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 973 N.Y.S.2d 629 [1st Dept.2013] ). Plaintiff's allegations that he is an openly gay man and was qualified for the positions of correction officer and captain meet the first two elements of his discrimination claim. Plaintiff's allegations that he was written up, twice suspended, and ultimately demoted meet the third element of disadvantageous treatment (see Santiago–Mendez v. City of New York, 136 A.D.3d 428, 26 N.Y.S.3d 514 [1st Dept.2016] ; Rollins v. Fencers Club, Inc., 128 A.D.3d 401, 8 N.Y.S.3d 202 [1st Dept.2015] ). Defendant's argument that plaintiff has not alleged that he was treated worse than similarly situated captains—as opposed to correction officers—is unavailing. Suspension and demotion are, on their faces, adverse employment actions. Defendant's argument is, effectively, that those actions were warranted by plaintiff's conduct while a captain, but this argument goes more properly to the second leg of the McDonnell Douglas burden-shifting framework (see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 [1973] ), namely rebuttal of a prima facie claim of employment discrimination by showing a legitimate, nondiscriminatory reason for the adverse action (see Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 35, 936 N.Y.S.2d 112 [1st Dept.2011], lv. denied 18 N.Y.3d 811, 2012 WL 1432090 [2012] ), and is misplaced at this early procedural juncture.
Plaintiff's allegation that, in about April 2013, defendant Assistant Deputy Warden Mingo followed him into a control room and poked him in the “derriere” with her radio antenna, saying, in the presence of other personnel, “Now I have your attention,” coupled with his allegation that, beginning in 2007, his superiors prevented him from searching the cells and persons of inmates who objected on the ground that plaintiff is “homosexual,” sufficiently allege the fourth element, discriminatory animus (see Brathwaite v. Frankel, 98 A.D.3d 444, 445, 949 N.Y.S.2d 678 [1st Dept.2012] ).
Plaintiff's allegation relating to inmate cell searches, adequately alleges “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint,” permitting consideration under the continuing violations doctrine of all actions relevant to that claim, including those that would otherwise be time-barred (Ferraro v. New York City Dept. of Educ., 115 A.D.3d 497, 497–498, 982 N.Y.S.2d 746 [1st Dept.2014] ; accord Jeudy v. City of New York, 142 A.D.3d 821, 823, 37 N.Y.S.3d 498 [1st Dept.2016] ). However, plaintiff's remaining allegations relating to alleged events transpiring prior to July 25, 2011, including the denial of his right to carry a firearm, are too vague and disconnected from his timely allegations to benefit from the continuing violations doctrine.