Opinion
INDEX NO. 150019/2020
10-20-2020
VICTOR CAMPBELL, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION Defendant.
NYSCEF DOC. NO. 42 PRESENT: HON. LYLE E. FRANK Justice MOTION DATE N/A MOTION SEQ. NO. 004
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 004) 35, 36, 37, 38, 39, 40, 41 were read on this motion to/for DISMISSAL.
This action arises out of allegations of racial and gender discrimination based on alleged violations of the city and state Human Rights Law. Defendants, The City of New York (City) and The New York City Department of Education (DOE), move for the dismissal of the second amended complaint.
This portion of defendant's motion is not substantively opposed, consequently that portion of the motion is granted.
Facts
Plaintiff is an African American male employed by DOE as a Procurement Analyst. On May 23, 2017, plaintiff registered to take a civil service examination for the title of Administrative Procurement Analyst. While at the registration site plaintiff claims that a manager working for DOE asked him "Why are you taking this exam?", to which plaintiff did not respond.
On October 15, 2018, plaintiff learned that he passed the subject examination. Plaintiff alleges that the DOE was unofficially interviewing individuals and making offers based on the civil service list. Plaintiff sent an email to DOE's Human Resources Department on December 7, 2018 to notify that office that he had passed the examination and wanted to apply for an Administrative Procurement Analyst position. On December 12, 2018, DOE contacted plaintiff and set up an opportunity for him to submit his application materials.
On December 19, 2018, plaintiff met with DOE employee Louis Yeotros, who informed him that Yeotros was not conducting interviews but only collecting resumes and references. Plaintiff was informed that, if necessary, he would be contacted about his application and interview by another individual at a later date. Plaintiff did not receive an interview for the position. On January 14, 2019, plaintiff was informed that he was no longer considered for the position.
Plaintiff claims that women and white men employed at DOE who passed the subject examination received interviews and promotions while he did not. He identifies Kay Robbins and Taril Hardy, both African American women, who passed the examination, were interviewed and were promoted. Plaintiff also identifies five white men, Paul Weydig, Graham Gordon, Alvin Berrios, Barry Poulos and Peter Frey, who received pay increases and probable certification after passing the examination, while he did not. Plaintiff asserts that these individuals were similarly situated as to him, as employees, and that what had occurred was evidence of discrimination based on race and gender on the part of defendants.
On January 8, 2020, plaintiff filed an Order to Show Cause seeking leave to file a late Notice of Claim concerning his allegations in this suit. On February 7, 2020, the court granted plaintiff's petition and gave leave for plaintiff to serve a late Notice of Claim upon defendants.
The second amended complaint contains five causes of action: (1) violation of the New York State Human Rights Law (race discrimination); (2) violation section 8-107 of the New York City Administrative Code (NYCAC) (race discrimination); (3) violation of the New York State Human Rights Law (gender discrimination); (4) violation of section 8-107 of NYCAC (gender discrimination); and (5) violation of the New York City Human Rights Law (general discrimination). Plaintiff alleges that both defendants were liable for actions of a discriminatory nature which resulted in his failure to receive a promotion that was due to him.
Defendants move for dismissal of the second amended complaint pursuant to CPLR 3211 (a) (7) and section 8-107 of NYCAC. They contend that plaintiff has failed to state a cause of action in any part of the complaint. According to defendants, plaintiff's allegations regarding causation lack specificity as to how he was discriminated as compared to those individuals who were "similarly situated" and there is no actual allegation of specific discriminatory animus directed towards him which would serve as the basis for human rights violation.
Legal Standard
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in a complaint as true, "accord plaintiff the benefit of every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory" (see Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]).
The standards for alleging discrimination under the New York State law: plaintiff has the burden to establish a prima facie case based on alleging that (1) plaintiff is a member of a protected class; (2) plaintiff is qualified to hold the stated position; (3) plaintiff suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination (see Ferrante v American Lung Assn., 90 NY2d 628, 629 [1997]).
The standard under the New York City law is somewhat different, perhaps less stringent. Pursuant to the city standard, plaintiff must show differential treatment of any degree based on a discriminatory motive (see Melman vMontefiore Med. Ctr.,93 AD3d 107, 127 [1st Dept 2012]). Courts have concluded that city law claims of this nature should be evaluated separately from state law claims and given an independent construction (see Williams v New York City Hous. Auth., 61 AD3d 64, 68 [1st Dept 2009]).
Discussion
Defendants acknowledge the liberal pleading standard in reviewing motions pursuant to CPLR 3211 (a)(7) but argue that the conclusory allegations here are insufficient for the court's consideration. In opposition, plaintiff contends that he has provided sufficient allegations of discriminatory conduct that align with the provisions of state and city human rights statutes.
First, plaintiff argues that defendants failed to submit with their opposition papers a copy of the amended complaint, and therefore this court is obligated to deny the motion. However, in reply, defendants contend that, as amended, the law allows a copy of said amendment to be electronically submitted, as was the case here. The court thus acknowledges this and will not dismiss the motion as such.
The main issue is whether plaintiff made a sufficient showing of discrimination based on race and/or gender. Plaintiff argues that he is not obligated to go into great detail in his pleadings as long as he alleges events which effect an inference of discriminatory conduct. While plaintiff identifies the names and races and genders of employees which are designated as similarly situated pursuant to city and state law, defendants argue that the complaint fails to mention the job titles, job duties, seniority, experience or years of service related to these employees. Defendants also argue that plaintiff failed to allege any acts constituting discrimination on their part.
Plaintiff alleges that he was informed that he would be notified for an interview and was never notified. When preparing for the examination, he was questioned by an unnamed manager about taking the examination, but he fails to refer to this incident anywhere else in the complaint. While he alleges that two African American women received promotions pursuant to passing the examination, he only alleges that five white men received probable certifications but not promotions.
The First Department has held that conclusory allegations are insufficient to state a claim under the New York City Human Rights Law. Whitfield-Ortiz v Department of Educ. of the City of New York, 116 AD3d 580 [1st Dept 2014]. While it is understandable that discerning acts of discrimination can be difficult and elusive, plaintiff has failed to be more than vague and incomplete in his assertion of conduct which would infer a discriminatory motive by defendants. Plaintiff's failure to provide a more detailed account of causation requires the dismissal of this complaint. Accordingly, it is hereby
ORDERED that defendants' motion to dismiss the second amended complaint is granted and the complaint is dismissed in its entirety; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly. 10/20/2020
DATE
/s/ _________
LYLE E. FRANK, J.S.C.