Colon v. City of New York

Full title: THOMAS COLON, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

Court: United States District Court, S.D. New York

Date published: Jan 15, 2021

Civil Action 19 Civ. 10435 (PGG) (SLC) (S.D.N.Y. Jan. 15, 2021)

Opinion

Civil Action 19 Civ. 10435 (PGG) (SLC)

01-15-2021

THOMAS COLON, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

Plaintiff Thomas Colon filed this action seeking injunctive relief, declaratory judgment and money damages, pursuant to 42 U.S.C. §§ 1981 and 1983, the United States Constitution, New York State Human Rights Law, Exec. L. § 296 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. (“NYCHRL”), against Defendants: (1) The City of New York (the “City”); (2) Steven Banks, Commissioner of the New York Human Resources Administration (“HRA”) and the Department of Homeless Services (“DHS”); (3) Jennifer Yeaw, Banks's Chief of Staff; (4) Jill Berry, Executive Deputy Commissioner of Human Resources (“HR”) Operations; (5) Matthew Brune, to whom Berry reported; (6) Mark L. Neal, Executive Deputy Commissioner of the Office of Human Capital Management; (7); Martha Calhoun, General Counsel for HRA; (8); Paul Ligresti, Assistant General Counsel of HRA; and (9) Isaac McGinn, Director of Communications at HRA (Banks, Yeaw, Berry, Neal, Brune, Calhoun, Ligresti, and McGinn, together the “Individual Defendants”) (the City and the Individual Defendants together, “Defendants”). (ECF No. 1). Plaintiff's claims are predicated on his allegations that, inter alia, during his employment at HRA, he received lower pay and was passed over for promotions due to his race and ancestry, and after he complained, he was targeted for retaliation through demotion and transfer of his duties to non-minorities, ultimately resulting in disciplinary charges against him and his wrongful termination. (Id. ¶ 2).

Defendants have moved to dismiss Colon's Complaint under Federal Rule of Civil Procedure 12(b), which the Court construes as a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (ECF Nos. 49-52).

For the reasons set forth below, I respectfully recommend that the Motion be GRANTED IN PART and DENIED IN PART, and that Colon be granted leave to amend certain of his claims.

II. BACKGROUND

A. Factual Background

1. Colon's employment with the City

Colon worked for the City for approximately 30 years in several capacities. (ECF No. 1 at 5¶ 24).¹ After graduating from Baruch University in 1990, Colon began working for the City's Taxi and Limousine Commission. (Id. at 5 ¶ 26). In 1995, he was hired as a Fraud Investigator in HRA's Eligibility Verification Review Division, and was promoted to Supervising Fraud Investigator within three months. (Id. at 5 ¶ 27). In 2002, Colon became the Director of the Program Support/Policy and Procedures Office, in 2007 was promoted to Director/Human Resources Business Partner of HRA's Office of Staff Resources (“OSR”), and in 2009 was promoted to Director of HRA's Family Independence Administration (“FIA”) Personnel Operations, where he managed a $300 million budget and supervised FIA's new hire, promotion, and civil service list movements. (Id. at 6 ¶¶ 28-31). In 2012, Colon became Executive Director of FIA's Personnel Operations, overseeing human resources and administrative responsibilities for 5, 200 unionized staff. (Id. at 6 ¶ 32).

1 Colon's Complaint is afflicted by a series of duplicatively-numbered paragraphs (See ECF No. 1 at 5 (paragraph 35 followed by paragraph 24); at 7 (paragraph 40 followed by another paragraph 40) at 11 (paragraph 66 followed by paragraph 40); at 15-16 (paragraph 81 followed by paragraph 66). Accordingly, the Court's citations to the Complaint include the page and paragraph number. If he is granted leave to amend, Colon should correct this pervasive defect.

In May 2014, Colon was promoted as Senior Advisor to Brune, who was then HRA's Chief Operating Officer. (ECF No. 1 at 6 ¶ 33). In August 2014, Brune named Colon interim Deputy Commissioner, with 200 employees working under him and five direct reports. (Id. at 6 ¶¶ 3435). In January 2015, Banks named Colon permanent Deputy Commissioner of HR for OSR, for which his civil service title was Administrative Staff Analyst (“ASA”) Level M-4, and which involved managing OSR operations, making daily administrative and operational decisions about personnel, overseeing civil service pools, and managing Timekeeping and Payroll Operations. (Id. at 6 ¶¶ 36-37). As Deputy Commissioner during the period November 2014 until August 2016, Colon reported to non-party Michael Laidlaw, who was Executive Deputy Commissioner of HR and was African-American. (Id. at 7 ¶ 38).

Colon alleges that from August 2014 until his demotion on September 12, 2018, he “faithfully and effectively discharged his duties as Deputy Commissioner for OSR, ” for which he received several awards and excellence recognitions. (Id. at 7 ¶¶ 39-40 (first)).

2. Hispanic managerial employees at HRA

In July 2013, Robert Doar, then HRA Commissioner, met with a group of Hispanic employees (the “Hispanic Committee”) about the lack of Hispanic employees in mid- and high-level HRA managerial positions within HRA. (ECF No. 1 at 7 ¶ 40 (second)). Colon alleges that only six out of nearly 200 “Commissioner level” executives at HRA were Hispanic, and that four Hispanic women were demoted from managerial positions in HRA's Investigation, Revenue and Enforcement Administration (“IREA”) “due to unlawful considerations that IREA contained too many female Hispanic managers.” (Id. at 8 ¶¶ 41-42). After Banks became HRA Commissioner, he held meetings in September 2014 and December 2014 with the Hispanic Committee, which he asked Colon to attend and during which he heard the Hispanic Committee's concerns and “vowed to make HRA's promotional practices more ‘fair.'” (Id. at 8 ¶¶ 44-45). In April 2015, the Hispanic Committee pressed Banks about their concerns and sent him a memorandum containing “statistics about the persistent lack of high-level Hispanic employees at HRA.” (Id. at 8 ¶ 47). Colon claims that Banks “made no real effort” to address those concerns, and that Hispanic employees at HRA have faced discrimination, such as the removal of operational and supervisory authority from a Hispanic woman who was the functional head of HRA's External Affairs division. (Id. at 8 ¶¶ 48-49).

3. Allegations of discrimination against Colon based on race and ancestry

In January 2015, when Colon became permanent Deputy Commissioner of HR, he managed 200 staff across several divisions and his annual salary was $130,000, which he alleges was $25,000 less than “his counterpart” Denise DePrima, a white female Deputy Commissioner managing 15 staff in OSR's Office of Labor Relations. (ECF No. 1 at 9 ¶¶ 52-53). In November 2014, Colon complained to Brune that his senior advisor, Lyn Raimouny, a white female, had no direct reports but made $15,000 more annually than he did. (Id. at 9 ¶ 54). In April 2016, DHS became part of HRA, leading to additional responsibilities for Colon, but no salary increase. (Id. at 9 ¶ 55). As a result of the integration of DHS into HRA, OSR's headcount was reduced by 25% such that existing employees under Colon's supervision worked thousands of hours more in overtime. (Id. at 10 ¶¶ 57-58). Starting in August 2016, Colon made numerous requests for a salary increase consummate with his new duties and consistent with “the salaries of white executive and even non-executive staff.” (Id. at 10 ¶¶ 59-60). In July 2017, Colon did receive a salary increase, although, he alleges, “only after he threatened to file an internal complaint with HRA's Equal Employment Opportunity (‘EEO') office.” (Id. at 10 ¶ 61). Colon is “aware of many upward salary adjustments for other HRA executive staff, ” whom he does not name, but he alleges have “lower titles” and are white and non-Hispanic. (Id. at 10 ¶ 62). Colon asserts that, since July 2017, he was paid a lower salary than other Assistant Deputy Commissioners and nonexecutive staff with fewer responsibilities than he held. (Id. at 10 ¶ 63).

4. Alleged acts of retaliation

From August 2014, when he became Deputy Commissioner, Colon protested a variety of what he perceived to be “unlawful and discriminatory personnel actions” by Banks and Yeaw, including the appointment of unqualified white individuals without following the City's competitive hiring process and “hiring unqualified staff based on referrals from City Hall.” (ECF No. 1 at 11 ¶¶ 64-66). Examples of Colon's complaints, which he alleges led to acts of retaliation, include Banks's threatening to fire Colon if he did not raise the civil service level of a white male appointee (“Employee #1”) from the Mayor's Office of Operations from M-2 to M-4, and Yeaw's yelling at him during weekly mayoral personnel meetings in 2015 when he objected to improper salary and qualification requests. (Id. at 11 ¶¶ 40-44, 12 ¶¶ 47-57). On December 14, 2015, Colon also complained to Brune about “Yeaw's discrimination against him on the basis of his race and ancestry.” (Id. at 13 ¶ 58). In a January 2016 mayoral personnel meeting, Yeaw glared at Colon and “demand[ed] that he take exact notes of her improper personnel actions, ” following which Colon complained to HRA's EEO Officer, Stephanie Grant, that Yeaw was harassing him based on his race and ancestry, although he did not file a formal EEO complaint. (Id. at 13-14 ¶¶ 59-63). Colon alleges “upon information and belief” that Grant reported Yeaw's conduct to Banks, after which Banks and Yeaw began to exclude Colon “from high-level discussions and meetings while looking to terminate him.” (Id. at 14 ¶¶ 64-65).

Many months later, in August 2016, Laidlaw resigned as Executive Deputy Commissioner of HR, and Berry, a white female, was installed as acting Executive Deputy Commissioner. (ECF No. 1 at 14 ¶¶ 67-68). Colon and Berry both interviewed with Brune for the permanent position, and Colon was asked to attend a second interview with Brune. (Id. at 14 ¶¶ 69-71). Colon told Brune that Berry was unqualified for the position, in response to which Brune said, “I don't want to hear that, Tom. Let's not bring that up again. She is eminently qualified.” (Id. at 15 ¶¶ 7374). Colon alleges that Brune also told him that the second interview was a “sham.” (Id. at 14 ¶¶ 71-72). On November 14, 2016, Berry was promoted to the permanent position of Executive Deputy Commissioner of HR, which, Colon alleges on information and belief, was the result of pressure on Brune from Banks and Yeaw (the “2016 Promotion Denial”). (Id. at 15 ¶¶ 76-77).

In December 2016, in retaliation for opposing Berry's promotion and for asking for his title to be adjusted to First Deputy Commissioner (Level M-5), Colon alleges that Berry removed his responsibilities for the Timekeeping, Payroll, Benefits Administration, and Salary Administration divisions and assigned those responsibilities to Denita Williams (a black female who was a former Deputy Commissioner of DHS's Personnel Office), a move that Colon accused Berry of being discriminatory based on race and ancestry and retaliation for his opposition to Berry's promotion (the “2016 Functional Demotion”). (ECF No. 1 at 15 ¶¶ 78-81).

Around this same time, while he and other Hispanic employees were being denied fair promotion and salary increases, Colon alleges that he “was directed to blatantly circumvent HRA policies and procedures in order to hire and promote unqualified white individuals, ” and when Colon protested, “Banks was infuriated.” (ECF No. 1 at 16 ¶¶ 66-78). For example, in December 2016, Banks and Raquel Lucas (who worked for Yeaw) directed Colon to give a managerial position to McGinn, a white male with less than three years' experience who had been involved in Mayor de Blasio's campaign, a decision that Colon concluded was “a blatant patronage hire.” (Id. at 16 ¶ 70; see also id. at 27 ¶ 158(a)-(d) (alleging other improper hirings)). Although Colon warned Lucas that the Department of Investigation (“DOI”) would “flag” the hire, Banks ordered Colon to proceed. (Id. at 17 ¶ 73). Colon reported the “unlawful promotion” to DOI, who then “questioned McGinn's promotion, ” and to Ligresti, the Assistant General Counsel of HRA, “who failed to respond.” (Id. at 17 ¶¶ 74-75).

In May 2017, “Banks and Defendants began laying the groundwork to demote and terminate” Colon. (ECF No. 1 at 17 ¶ 79). In June 2017, after Colon told Berry that he would file an internal EEO complaint if he did not receive a salary increase “in line with DePrima's pay, ” his salary was raised to $151,000, although he claims that it “was still not commensurate” with his responsibilities or to “the salary of comparable and similarly situated non-minority employees at HRA.” (Id. at 18 ¶¶ 85-87). In July 2017, Yeaw resigned, Lucas became Banks's Chief of Staff and then moved into an Assistant Deputy Commissioner position when she returned from maternity leave in September 2018. (Id. at 17 ¶¶ 80-83). Colon alleges that he “was forced” to create a job description for Lucas, even though she lacked HR experience, in what Colon calls “an unjustified move that would in the future be used to replace” him. (Id. at 17 ¶¶ 83-84).

Around the same time as Colon received a raise in May 2017, Berry referred Colon to be investigated for Medicaid payroll fraud, which he asserts was in retaliation for his request that his pay match DePrima's and for complaining to Grant about Yeaw's harassment. (ECF No. 1 at 18 ¶¶ 88-89).

Colon alleges that Defendants' retaliation also included “sabotag[ing]” an offer he had received to become the head of human resources at the City's Department of Design and Construction (“DDC”) (the “DDC Offer”) - Colon alleges “[u]pon information and belief” that Banks and Martha Calhoun, HRA's General Counsel, provided negative comments about him to DDC that led to DDC's rescission of the offer. (ECF No. 1 at 18-19 ¶¶ 91-99). As support for this belief, Colon alleges that Banks, who had previously avoided speaking to him, “uncharacteristically looked at” him, “smiled pleasantly, ” and asked him how he was, and Calhoun, “who never speaks to him, ” greeted Colon in a meeting by saying “Hiiiiiiiii Tom, ” smiling, and “wiggling her finger.” (Id. at 19 ¶¶ 92, 96-97).

Colon alleges that the retaliation also led to his demotion. On August 28, 2018, Neal, who is a black male (ECF No. 1 at 4 ¶ 24), told Colon that, as a result of Lucas' arrival in HR, Neal was removing the Partnerships division from Colon's responsibilities and assigning it to Denita Williams, a black woman “who lacked the proper qualifications”. (Id. at 19 ¶ 100). When Colon complained to Neal that the reassignment “weaken[ed] his position, on considerations of race and ancestry, ” Neal told Colon to “prove him wrong” to keep the position. (Id. at 19 ¶ 101). On September 12, 2018, Neal informed Colon that he was being demoted to a non-managerial ASA (Level M-2) position with a $35,000 salary reduction (the “2018 Demotion and Salary Reduction”). (Id. at 20 ¶ 103). He alleges “[u]pon information and belief” that Banks, Brune, Yeaw, ² Berry, Neal, Calhoun, and Ligresti decided to demote him and cut his salary. (Id. at 20 ¶ 104). Colon was also moved to another office, 250 Livingston Street, where he was one of only two employees on the floor and had “no assignments.” (Id. at 21 ¶¶ 110-11).

2 The Court notes that Yeaw had resigned more than one year before the 2018 Demotion and Salary Reduction. (ECF No. 1 at 17 ¶ 80).

Colon alleges that the Salary Reduction initiated by Banks violated New York City Personnel Services Bulletin, Article 3, Section 320-R (Mayor's Personnel Order No. 78/9) (“PSB 320-2R”), pursuant to which managers must be given official notification of their right to appeal the demotions and salary cuts, which Banks had the discretion not to cut by more than 20%. (ECF No. 1 at 21 ¶¶ 115-16). Banks failed to provide Colon with notice of his right to appeal and refused to exercise his discretion concerning the reduction in his salary. (Id. at 21-22 ¶ 117). On October 10, 2018, Colon appealed the 2018 Demotion and Salary Reduction to the City's Department of Citywide Administrative Services, the agency responsible for recruiting, hiring, and training City employees, and requested that his 32% salary reduction and demotion be rescinded based on HRA's failure to follow the procedure in PSB 320-2R. (Id. at 28 ¶¶ 159-60). On December 10, 2018, Neal informed Colon that he was “restored to the title of Administrative Staff Analyst Managerial Level 4, with full salary and retroactive pay and benefits effective to September 12, 2018.” (Id. at 28 ¶¶ 161-62).

5. Disciplinary Charges

By way of background, in 2017, 77% of HRA's funding came from New York City, and 23% came from New York State and/or federal sources. (ECF No. 1 at 22 ¶ 118). As required by New York State law, City employees involved in work related to Medicaid (“Medicaid Lines”) are paid from the City budget, and the State then reimburses the City for salaries 100% attributable to Medicaid. (Id. at 22 ¶ 119).

Colon alleges, on information and belief, that in July 2017, Banks, Brune, Yeaw, Berry, Neal, Calhoun, and Ligresti “singled” him out “to be investigated for Medicaid fraud in relation to whether HRA employees' salaries are paid by the City or the State through Medicaid.” (ECF No. 1 at 22 ¶ 120). Colon claims that, in reality, Banks directed and “forced” his subordinates to engage in “Medicaid fraud or improper reimbursements” through the “Process to Eliminate the Gap, ” deigned to reduce the number of City employees in front line HRA departments to “free up funding to hire new operational employees in other HRA departments.” (Id. at 22 ¶¶ 121-22). For example, Banks instructed Colon and others to eliminate 344 full-time HRA positions, without laying off or terminating those employees, but then directed administrative employees from satellite offices be consolidated: HRA headquarters. (Id. at 23 ¶¶ 123, 126-127). Banks, Yeaw, Brune, and others at HRA “unlawfully required that the Medicaid-funded City employees do non-Medicaid [work] while continuing to report to the State that [they] were doing Medicaid work so the State would keep paying their salaries.” (Id. at 23 ¶ 132). Colon alleges that he requested HRA's Finance Department and non-party Erin Villari to create a budget funding line for consolidated employees who were not doing 100% reimbursable Medicaid work, but “the requests were never granted.” (Id. at 24 ¶¶ 133-34). Banks “knowingly allowed” the practice of staffing his office with employees whose salaries were reimbursed by the State. (Id. at 24 ¶¶ 135-36).

On September 18, 2018, Colon was charged with “Misconduct and/or Incompetence, ” (the “Disciplinary Charges”), which he alleges was discriminatory and retaliatory for his opposition to “agency-wide unlawful activities and discrimination.” (ECF No. 1 at 24 ¶ 138). The Disciplinary Charges were as follows:

During the period of March 2015 through July 2017, while you were the Deputy Commissioner for [OSR], you intentionally engaged in an organized scheme to improperly designate [OSR] staff members to State-funded 100% Medicaid lines when those staff members were not performing or supporting 100% Medicaid only [sic] work. Under your direction and oversight during this period, there were approximately 34 positions that were falsely designated as 100% Medicaid-funded when the staff members were not performing or supporting 100% Medicaid only [sic] work.

As a result of the alleged scheme, the agency improperly received at least $3 million that will need to be reimbursed to the State. Moreover, you improperly disregarded advisement from the agency's Finance division that [OSR] staff could not be designated to 100% Medicaid-funded lines in this manner and as a result this scheme was wrongfully concealed until it was discovered by the agency's Chief Operating office on or about July 31, 2017.

(Id. at 24-25 ¶ 140). Colon alleges that Banks and the Defendants, knowing that the allegations were “false, discriminatory, and retaliatory, ” initiated the Disciplinary Charges “to get rid of him and disguise their own unlawful conduct.” (Id. at 24-25 ¶¶ 139-140). Colon alleges that, to the contrary, he tried to “realign” employees to ensure that staff on Medicaid Lines were doing Medicaid work, and informed Defendants of his efforts, to no avail. (Id. at 25 ¶¶ 142-49). Colon claims that Banks, Brune, Yeaw, Berry, Neal, and several other HRA employees (black and white) were part of the Medicaid payroll scheme and should have faced charges, instead of him. (Id. at 26 ¶¶ 150-56).

The City's Office of Administrative Trials and Hearings (“OATH”) held hearings on the Disciplinary Charges (the “OATH Proceeding”), and on June 13, 2019, Administrative Law Judge John B. Spooner recommended that Colon's employment be terminated. (ECF No. 1 at 28 ¶ 163). During the hearings, Judge Spooner questioned why others, including Banks, were not charged. (Id. at 28-29 ¶¶ 164-68). On July 29, 2019, Banks adopted Judge Spooner's recommendation and terminated Colon, who was “replaced with a less-qualified white female hire” (the “Termination”). (Id. at 29 ¶¶ 169-70). In July 30, 2019 news reports about the Termination, McGinn made, on behalf of Banks, the following statement, which Colon alleges was defamatory:

As stewards of vital benefit programs and taxpayer dollars, program integrity and fiscal prudence are paramount - and individual who violate our standards must be held accountable to the fullest extent possible. Thanks to proactive staff seeing something, saying something and investigating, this bad actor was stopped and funds reimbursed.

(Id. at 29 ¶ 171). Colon alleges that Banks targeted for selective enforcement another HRA employee, the Executive Deputy Commissioner of HRA's Information Management Systems, to cover up misconduct involving improprieties in the administration of Supplemental Nutrition Assistance Program (“SNAP”) benefits to a list of friends and family of politically-connected individuals whose SNAP accounts Banks ordered remain open. (Id. at 29-30 ¶¶ 172-80). This employee retired before any disciplinary charges were initiated. (Id. at 29 ¶¶ 181-82).

6. Colon's damages

Colon alleges that, as a result of Defendants' conduct, he has lost past and future earnings and other employment benefits, is under the care of physicians for elevated levels of stress, severe emotional distress, embarrassment, humiliation, and anguish. (ECF No. 1 at 31 ¶¶ 18384). Colon also seeks punitive damages on the ground that Defendants' conduct “was outrageous and malicious, ” intentional, and “carried out with reckless indifference” to his civil rights. (Id. at ¶ 185).

7. Municipal liability

Colon alleges that the City “maintains a policy and custom of unlawful discrimination on the basis of race and ancestry in hiring, retention, promotion and compensation of employees, and has been found to have discriminated and retaliated against employees who complained about discrimination.” (ECF No. 1 at 31 ¶ 189). HRA in particular “has a history of engaging in a policy and custom of racial discrimination based on its demotion of minority employees.” (Id. at 32 ¶ 190). Because Banks, Yeaw, Berry, and Neal, as executive officials of HRA, failed to address Colon's complaints about discrimination, unfair employment practices, and improper conduct establish that HRA and the City have an improper “practice of ignoring discrimination and failing to protect those who complained about discrimination” and other violations. (Id. at 32 ¶ 191). Colon also alleges that Banks's Termination of his employment establishes that the City “had a policy of targeting employees who complained about discrimination.” (Id. at 32 ¶ 193).

8. Colon's claims

Colon's Complaint includes eight causes of action: (1) race and ancestry discrimination in violation of Section 1981 pursuant to Section 1983 against all Defendants (ECF No. 1 at 32-33 ¶¶ 195-200 (the “Discrimination Claim”); (2) retaliation in violation of Section 1981 pursuant to Section 1983 against all Defendants (id. at 33-34 ¶¶ 201-05 (the “Retaliation Claim”)); (3) race and ancestry discrimination in violation of the NYSHRL against all Defendants (id. at 34-35 ¶¶ 206-09 (the “NYSHRL Discrimination Claim”); (4) race and ancestry discrimination in violation of the NYCHRL against all Defendants (id. at 35 ¶¶ 210-13) (the “NYCHRL Discrimination Claim”); (5) retaliation in violation of the NYSHRL against all Defendants (id. at 35-36 ¶¶ 214-17 (the “NYSHRL Retaliation Claim”); (6) retaliation in violation of the NYCHRL against all Defendants (id. at 36 ¶¶ 218-21) (the “NYCHRL Retaliation Claim”); (7) selective enforcement in violation of the Equal Protection Clause pursuant to Section against all Defendants (id. at 36-37 ¶¶ 222-25 (the “Selective Enforcement Claim”); and (8) defamation under New York law against the City, Banks and McGinn (id. at 37 ¶¶ 226-30) (the “Defamation Claim”). He also alleges that the City bears municipal liability based on its discriminatory policies (the “Municipal Liability Claim”). (Id. at 3132 ¶¶ 189-94, 37 ¶ 232).

Colon seeks compensatory and punitive damages, injunctive relief, oversight and monitoring of Defendants to prevent future retaliation, an enforcement mechanism requiring a compliance plan by the City, and attorneys' fees and costs. (ECF No. 1 at 37-39 ¶232).

B. Procedural Background

On November 8, 2019, Colon filed the Complaint. (ECF No. 1). After all Defendants were served, the Court held a conference, at which Defendants received permission to file the Motion, and discovery was stayed pending resolution of the Motion. (ECF Nos. 43-44). On June 22, 2020, all of the filings in support of and in opposition to the Motion were filed. (ECF Nos. 49-54). On September 21, 2020, the Honorable Paul G. Gardephe referred the Motion to the undersigned for this Report and Recommendation. (ECF No. 55).

III. LEGAL STANDARDS

A. Motion to Dismiss

In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all factual allegations in the complaint and draws all reasonable inferences in favor of the plaintiff. See N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119 (2d Cir. 2013); Trujillo v. City of N.Y., No. 14 Civ. 8501(PGG), 2016 WL 10703308, at *4 (S.D.N.Y. Mar. 29, 2016). “[T]he Court must assess whether the complaint ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Id., at *4 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted)). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Myers v. City of New York, No. 11 Civ. 8525 (PAE), 2012 WL 3776707, at *2 (S.D.N.Y. Aug. 29, 2012) (quoting Iqbal, 556 U.S. at 678).

“‘[A] plaintiff alleging employment discrimination or retaliation is not required to plead facts sufficient to establish a prima facie case.'” Trujillo, 2016 WL 10703308, at *4 (quoting Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 512 (S.D.N.Y. 2010)). Rather, “‘the ordinary rules for assessing the sufficiency of a complaint' under Fed.R.Civ.P. 8(a)'s notice pleading standard apply.” Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). Under Rule 8(a), a plaintiff must set forth a “short and plain statement of the claim, ” Fed.R.Civ.P. 8(a), “with sufficient factual ‘heft to sho[w] that the pleader is intitled to relief.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal citation omitted)). A complaint “cannot withstand a motion to dismiss unless it contains factual allegations sufficient to raise a ‘right to relief above the speculative level.'” Id. (quoting Twombly, 550 U.S. at 555), and “present claims that are ‘plausible on [their] face.'” Id. (quoting Twombly, 550 U.S. at 570)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. A complaint that pleads facts “merely consistent with” a defendant's liability “stops short of the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557 (internal citation omitted). If “the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” id. at 558, or if the plaintiff has “not nudged [his] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id. at 570. The Second Circuit has explained that, where a complaint “consist[s] of nothing more than naked assertions, and set[s] forth no facts upon which a Court could find a violation of the Civil Rights Act, fails to state a claim under [Rule] 12(b)(6).” Martin v. N.Y. State. Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).

In reviewing the Motion, the Court considers “the allegations contained within the four corners of the” Complaint, Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), and may consider “documents attached . . . as exhibits, and documents incorporated by reference.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). The Court may also consider a document that, although not incorporated by reference, the Complaint relies on for its terms such that the document is “integral to the complaint.” Id. Finally, the Court may take judicial notice of the fact, but not the content or truth, of testimony in another judicial proceeding. See Nestle Waters N. Am., Inc. v. City of New York, No. 15 Civ. 05189 (ALC), 2016 WL 3080722, at *4 (S.D.N.Y. May 25, 2016), aff'd, 689 Fed.Appx. 87 (2d Cir. 2017) (“a court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings”) (internal citations omitted)); Lia v. Saporito, 909 F.Supp.2d 149, 177-78 (E.D.N.Y. 2012).

B. Section 1981 and 1983 Claims

Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts[.]” 42 U.S.C. § 1981(a). The Civil Rights Act of 1991 expanded Section 1981 to prohibit discrimination occurring after contract formation “with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship[.]” Patterson v. Cty. of Oneida, 375 F.3d 206, 224 (2d Cir. 2004). Because Section 1981 itself does not contain a cause of action against state actors, any claim must be brought through Section 1983. See Duplan v. City of N.Y., 888 F.3d 612, 61921 (2d Cir. 2018) (reaffirming applicability of Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989), which held that “the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units”).³

3 Defendants' argument that Colon's Section 1981 claims should be dismissed for lack of a private right of action, is incorrect, because Colon has framed his claims as Section 1981 violations brought pursuant to Section 1983. (ECF No. 51 at 15 n.3). See Duplan, 888 F.3d at 621 (construing plaintiff's Section 1981 claims as brought under Section 1983).

“[Section] 1983 ‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A plaintiff asserting a claim under Section 1983 must show that, while “acting under color of state law, ” Defendants “deprived [him] of a constitutional or federal statutory right.” Bermudez v. City of N.Y., 783 F.Supp.2d 560, 575 (S.D.N.Y. 2011) (citing Washington v. Cty. of Rockland, 373 F.3d 310, 315 (2d Cir. 2004)). To recover damages under Section 1983, a plaintiff must allege “sufficient facts to demonstrate that defendants were personally or directly involved” in the alleged violation.” Harris v. Westchester Cty. Dep't of Corr., No. 06 Civ. 2011 (RJS), 2008 WL 953616, at *9 (S.D.N.Y. Apr. 3, 2008). “Personal involvement necessary to impose individual liability includes situations where: (1) the defendant directly participated in the infarction; (2) the defendant failed to remedy the wrong after learning of the constitutional violation; (3) the defendant created the policy or custom under which the unconstitutional practice occurred or allowed such custom or policy to continue or, (4) the defendant was grossly negligent in managing subordinates who caused the unlawful event.” Longo v. Suffolk Cty. Police Dep't, 429 F.Supp.2d 553, 558-59 (E.D.N.Y. 2006).

Section 1983 claims filed in New York must be brought within three years of the date when a plaintiff knew or should have known of the injurious basis of the claim. See Hogan v. Fischer, 738 F.3d 509, 517-18 (2d Cir. 2013).

C. Employment Discrimination Claims

To assess whether a plaintiff has sufficiently alleged an employment discrimination claim, courts “consider . . . the three-stage, burden-shifting framework established by the Supreme Court in” McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as follows:

At the pleading stage, a plaintiff does not need to prove discrimination or even allege facts establishing every element of the McDonnell Douglas prima facie case, but the facts alleged must give plausible support to the reduced requirements of the prima facie case. Thus, a plaintiff need only plead facts sufficient to give plausible support to the plaintiff's minimal initial burden, which is governed by the status under which [he] brings [his] claims.

Richard v. N.Y.C. Dep't of Educ., No. 16 Civ. 957 (MKB), 2017 WL 1232498, at *6 (E.D.N.Y. Mar. 31, 2017) (internal citations omitted); see Littlejohn v. City of N.Y., 795 F.3d 297, 312 (2d Cir. 2015) (explaining that, at the pleading stage, courts focus on “whether the allegations in the complaint give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas in the initial phase of a litigation”). “[C]ourts generally treat the elements of a prima facie case as an outline of what is necessary to render a plaintiff's employment discrimination claims for relief plausible to survive a motion to dismiss, ” meaning that the plaintiff “must allege facts that allow the [c]ourt, in substance, to infer the essential elements of a prima facie case.” Hill v. City of N.Y., 136 F.Supp.3d 304, 332-33 (E.D.N.Y. 2015) (internal citations omitted).

D. Selective Enforcement Claim Under the Equal Protection Clause

The Fourteenth Amendment right to equal protection of the law is “essentially a direction that all persons similarly situated be treated alike.” City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Disabled Am. Veterans v. U.S. Dep't of Veterans Affairs, 962 F.2d 136, 141 (2d Cir. 1992). To establish a violation of the Equal Protection Clause, a plaintiff must show purposeful discrimination directed to an identifiable class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995); Longo, 429 F.Supp.2d at 560. In the absence of a suspect class or identifiable right, courts have found equal protection violations based on “arbitrary and irrational discrimination” or “an allegation of selective treatment in terms of public employment where it is shown that such treatment was motivated by an intention to discriminate based upon impermissible considerations, such as race or by a malicious or bad faith intent to injury the person.” Longo, 429 F.Supp.2d at 560 (citing Muller v. Costello, 187 F.3d 298, 309 (2d Cir. 1999) and Quinn v. Nassau Cty. Police Dep't, 53 F.Supp.2d 347, 355 (E.D.N.Y. 1999)).

E. Municipal Liability

When the defendant sued for discrimination under Section 1983 is a municipality or an individual sued in his or her official capacity, the plaintiff must demonstrate “that the challenged acts were performed pursuant to a municipal policy or custom.” Bermudez, 783 F.Supp.2d at 575; see Jett, 491 U.S. at 733-36; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-94 (1978); Patterson, 375 F.3d at 225-27. To prevail on a Monell claim against a municipality under Section 1983 based on the acts of a public official, a plaintiff must prove: “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). The purpose of the fifth prong of this inquiry is to ensure that a municipality is “not [] held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). Thus, the plaintiff must show a “direct causal link between a municipal policy or custom and the alleged constitutional violation.” Kucharczyk v. Westchester Cty., 95 F.Supp.3d 529, 538 (S.D.N.Y. 2015) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)).

Determining municipal liability requires a court to “conduct a separate inquiry” into whether there exists a “policy” or “custom.” Davis v. City of N.Y., 228 F.Supp.2d 327, 336 (S.D.N.Y. 2002), aff'd, 75 Fed.Appx. 827 (2d Cir. 2003). A plaintiff may satisfy the requirement to plead a policy or custom by alleging:

(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such

an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.

Kucharczyk, 95 F.Supp.3d at 538-39 (quoting Brandon v. City of N.Y., 705 F.Supp.2d 261, 27677 (S.D.N.Y. 2010) (internal citations omitted)). Normally, “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof it was caused by an existing, unconstitutional municipal policy” that “can be attributed to a municipal policymaker.” Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985). “The ultimate question is whether the plaintiff has sufficiently alleged ‘that, through its deliberate conduct, the municipality was the moving force behind the alleged injury.'” Dunham v. Oliver, No. 11 Civ. 1223 (ALC) (SLC), 2019 WL 5540965, at *5 (S.D.N.Y. Oct. 28, 2019) (quoting Roe, 542 F.3d at 37) (internal citation omitted).

At the pleading stage, the plaintiff “need not prove these elements, but still must plead them sufficiently to make out a plausible claim for relief.” Kucharczyk, 95 F.Supp.3d at 540. To survive a motion to dismiss, a plaintiff “cannot merely allege the existence of a municipal policy or custom, but ‘must allege facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists.'” Id. (quoting Santos v. N.Y. City, 847 F.Supp.2d 573, 576 (S.D.N.Y. 2012)). “[C]onclusory allegations of a municipal custom or practice of tolerating official misconduct are insufficient to demonstrate the existence of such a custom unless supported by factual details.” Id.

IV. DISCUSSION

A. Materials Considered

As a preliminary matter, Colon asks the Court to disregard documents on which Defendants rely in their Motion but are not incorporated by reference in the Complaint. (ECF No. 54 at 13). These documents include the petition that Colon filed under Article 78, and testimony from Berry and Raimouny during the OATH Proceeding. (See ECF No. 50). The Court agrees that the Complaint does not incorporate by reference or otherwise heavily rely on any of these documents. See DiFolco, 622 F.3d at 111 (explaining that, on motion to dismiss, court may consider the allegations in the four corners of the complaint and “documents attached . . . as exhibits, and documents incorporated by reference”). The Court similarly agrees that it would be inappropriate to consider the testimony during the OATH Proceeding for its content or truth. See Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (noting that courts may take judicial notice of documents filed in other courts “not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings”); Glob. Network Comms., Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir. 2006) (reversing grant of motion to dismiss where district court improperly relied in part on testimony in another proceeding “to make a finding of fact that controverted the plaintiff's own factual assertions set out in its complaint”). Accordingly, the Court declines to consider these documents for their truth in analyzing Defendants' Motion.

B. Claims Based on Conduct Before November 8, 2016 are Untimely.

As noted above, Colon's claims under Section 1983, the NYSHRL, and the NYCHRL are subject to a three-year statute of limitations. See Owens v. Okure, 488 U.S. 235, 251 (1989) (applying three-year statute of limitations to Section 1983 claims); Kassner v. 2d Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (applying three-year statute of limitations to NYSHRL and NYCHRL claims); Bermudez., 783 F.Supp.2d at 573-74. Colon concedes that each of his claims is subject to a three-year statute of limitations. (ECF No. 54 at 14).

Courts may apply the continuing-violation exception to the statute of limitations in employment discrimination cases brought under Sections 1981 and 1983, the NYSHRL, and NYCHRL. See Washington, 373 F.3d at 317-18 (applying exception to Section 1981 and 1983 claims); Bermudez, 783 F.Supp.2d at 582, 584 (same); Drew v. Plaza Constr. Corp., 688 F.Supp.2d 270, 278-79 (S.D.N.Y. 2010) (applying exception to NYSHRL and NYCHRL claims). Under the continuing-violation exception, “if a plaintiff has experienced a continuous practice and policy of discrimination, . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.” Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal citations omitted). For the continuing-violation exception to apply, “a plaintiff must at the very least allege that one act of discrimination in furtherance of the ongoing policy occurred within the limitations period.” Patterson, 375 F.3d at 220. The Supreme Court has explained that “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify” and are “not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-15 (2002). “Instead, ‘[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act,' and even serial violations-a series of discrete but related acts of discrimination-do not warrant application of the continuing violations doctrine.” Milani v. IBM, 322 F.Supp.2d 434, 452 (S.D.N.Y. 2004) (quoting Morgan, 536 U.S. at 113-14). The Supreme Court's holding in Morgan also supplies the standard for applying the continuing-violations exception to NYSHRL and NYCHRL claims. See Bermudez, 783 F.Supp.2d at 574 (citing Bartman v. Shenker, 5 Misc.3d 856 (N.Y. Sup. Ct. 2004)). “[T]his doctrine is ‘heavily disfavored in the Second Circuit and courts have been loath to apply it absent a showing of compelling circumstances.” Zabar v. N.Y.C. Dep't of Educ., No. 18 Civ. 6657 (PGG), 2020 WL 2423450, at *4 (S.D.N.Y. May 12, 2020) (quoting Trinidad v. N.Y.C. Dep't of Corr., 423 F.Supp.2d 151, 165, n.11 (S.D.N.Y. 2006) (internal citations omitted)).

Colon commenced this action on November 8, 2019. (ECF No. 1). His Section 1983, NYSHRL, and NYCHRL claims based on conduct that occurred before November 8, 2016 are time-barred unless the continuing violation exception to the statute of limitations applies. The Court finds that Colon's complaints of discriminatory treatment before November 8, 2016 - which include: (i) his complaints to Brune in November 2014 that his salary was lower than Raimouny's; (ii) the failure to increase his salary when DHS integrated with HRA in April 2016; (iii) his objection to the hiring of Employee #1 in April 2015; and (iv) the events during the mayoral personnel meetings in 2015 after which he complained to Brune and Grant (id. at 9-12 ¶¶ 54-64, 11-13 ¶¶ 40-61) - do not allege an ongoing and systematic scheme of discrimination by Defendants but rather are “[d]iscrete acts” that occurred outside the statutory time period and therefore, the continuing violation doctrine does not apply. See Morgan, 536 U.S. at 114; Zabar, 2020 WL 2423450, at *4 (granting motion to dismiss as to employment actions that took place outside the statute of limitations period); Concey v. N.Y.S. Unified Ct. Sys., No. 09 Civ. 8858 (PGG), 2011 WL 4549386, at *13 (S.D.N.Y. Sept. 30, 2011) (finding that allegedly discriminatory remarks and failure to promote that occurred outside the statute of limitations period were “discrete acts” that were time-barred). Accordingly, Colon may only base his claims on conduct that occurred after November 8, 2016. See Silva-Markus v. N.Y.C. Dep't of Educ., No. 19 Civ. 4335 (PGG), 2020 WL 5819555, at *6 (S.D.N.Y. Sept. 30, 2020) (granting motion to dismiss as to employment actions that occurred outside the statute of limitations period); Bermudez, 783 F.Supp.2d at 585 (holding that continuing violation exception did not apply and excluding allegations outside the statute of limitations period).

Colon argues that the Court should consider pre-November 8, 2016 conduct “as supporting background evidence of timely claims, ” citing Chin v. Port Authority of New York & New Jersey, 685 F.3d 135, 150 (2d Cir. 2012) and Petrosino v. Bell Atlantic, 385 F.3d 210, 220 (2d Cir. 2004). (ECF No. 54 at 14). In both Chin and Petrosino, however, the question before the court was the admissibility of evidence of allegedly discriminatory acts outside the statute of limitations, not the timeliness of the claims in the complaint. See Chin, 685 F.3d at 150 (holding that trial court did not err in admitting evidence of events that occurred outside limitations period); Petrosino, 385 F.3d at 220 (in assessing whether genuine issue of fact precluded summary judgment on timely claims, court properly considered earlier employment actions as “background evidence”). In fact, in Petrosino, the Second Circuit noted the distinction between hostile environment claims (which Colon does not allege) where earlier events may be considered, and termination or failure to promote claims (which Colon does allege) that “may not be based on discrete acts falling outside the limitations period.” 385 F.3d at 220 (citing Morgan, 536 U.S. at 114). Accordingly, Colon's retaliation and discrimination claims based on conduct before November 8, 2016 are time-barred.

C. The Discrimination Claim

Colon alleges that Defendants subjected him to differential terms and conditions of employment “because of his race and ancestry, ” including: (i) denying him equal pay compared to non-Hispanic employees; (ii) the 2016 Promotion Denial; (iii) the 2016 Functional Demotion; (iv) the 2018 Demotion and Salary Reduction; and (v) assertion of the Disciplinary Charges against him and the Termination. (ECF No. 1 at 33 ¶¶ 196-97; ECF No. 54 at 15). For the reasons set forth below, the Court finds that Colon has adequately alleged the Discrimination Claim based on (1) the 2016 Promotion Denial, as to Brune only, and (2) the 2016 Demotion, as to Berry only.

To establish a prima facie case of discrimination, a plaintiff may allege “that he was treated less favorably than similarly situated employees of other races.” Brown v. Daikin Am. Inc., 756 F.3d 219, 229 (2d Cir. 2014). To do so, “a plaintiff must allege that ‘[]he was similarly situated in all material respects to the individuals with whom []he seeks to compare [him]self.'” Id. at 230 (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). Allegations of “adverse actions taken against employees who are not similarly situated” does not “establish an inference of discrimination.” Littlejohn, 795 F.3d at 312.

“[W]hether two employees are similarly situated” typically “presents a question of fact, rather than a legal question to be resolved on a motion to dismiss.” Brown, 756 F.3d at 230 (internal citations omitted). At the pleading stage, however, “it is insufficient for a plaintiff to make naked assertions of disparate treatment without factual allegations indicating those employees treated differently were similarly situated.” Sosa v. N.Y.C. Dep't of Educ., 368 F.Supp.3d 489, 514 (E.D.N.Y. 2019). The “plaintiff must still identify at least one comparator to support a minimal inference of discrimination” in order to survive a motion to dismiss. Goodine v. Suffolk Cty. Water Auth., No. 14 Civ. 4514 (JS) (ARL), 2017 WL 1232504, at *4 (E.D.N.Y. Mar. 31, 2017).

1. Colon's pay in comparison to non-Hispanic employees

Colon alleges that he suffered an adverse employment action when he was “paid less than DePrima and [] Raimouny[, ] who had less or comparable duties.” (ECF Nos. 54 at 16; 1 ¶¶ 5154). As set forth above, however, Colon's complaint to Brune in November 2014 that his salary was lower than Raimouny's, and DHS's integration with HRA, when Colon complained his salary should have increased, occurred in April 2016, both of which occurred more than three years before he filed this action. Accordingly, Colon's discrimination claim based on denial of equal pay should be dismissed against all Defendants as untimely. See Hogan v. Fischer, 738 F.3d 509, 51718 (2d Cir. 2013) (explaining that Section 1983 claims filed in New York must be brought within three years of the date when plaintiff knew or should have known of injuries).

2. The 2016 Promotion Denial

Colon alleges that the 2016 Promotion Denial, and the decision to promote Berry to the position, was improperly based on his race and ancestry. (ECF No. 1 at 14 ¶¶ 67-77; ECF No. 54 at 19-21). This claim arose within three years of Colon's filing of the Complaint, and is therefore timely.

To establish a discrimination claim based on failure to promote, a plaintiff must demonstrate that: “(1) []he is a member of a protected class; (2) []he applied and was qualified for a job for which the employer was seeking applicants; (3) []he was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications.” Estate of Hamilton v. City of N.Y., 627 F.3d 50, 55 (2d Cir. 2010) (internal citations omitted). The fourth element may also be satisfied if the employer has filled the position with “‘a person outside the protected class who was similarly or less well qualified than'” the plaintiff. Yu v. N.Y.C. Housing Dev. Corp., 494 Fed.Appx. 122, 125 n.4 (2d Cir. 2012) (quoting Stockwell v. City of Harvey, 597 F.3d 895, 901 (7th Cir. 2010)). Under the McDonnell Douglas burden-shifting framework, once the plaintiff establishes these four elements of a prima facie case, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the employee's rejection” for the position. McDonnell Douglas, 411 U.S. at 802. If the employer does so, “then the plaintiff must show that the reasons presented were not the employer's ‘true reasons,' but were instead a ‘pretext for discrimination.'” Yu, 494 Fed.Appx. at 125 (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009) (superseded by statute on other grounds as recognized in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013))).

Defendants dispute the fourth prong by arguing, with citation to transcripts from the OATH Proceeding, that Berry was more qualified than Colon and therefore, they “were not similarly situated.” (ECF No. 51 at 20 (citing ECF No. 50-3)). As set forth above, however, those transcripts are not properly before the Court on this Motion, and therefore, the Court declines to engage in Defendants' request for an analysis of Colon's and Berry's respective qualifications. See Smith v. Factory Direct Enter. LLC, No. 18 Civ. 3463 (ADS) (AYS), 2019 WL 4221059, at *4 (E.D.N.Y. Sept. 5, 2019) (declining to review external sworn statements, which would involve “credibility assessments and weighing of the evidence, ” which is inappropriate on a motion to dismiss). Rather, for purposes of Rule 12(b)(6), Colon has alleged that he had 15 years of human resources experience, while Berry had none. (ECF No. 1 at 14 ¶ 69). This allegation, which the Court construes as true for purposes of the Motion, alleges a disparity in qualifications that is sufficient to give rise to a plausible inference of discriminatory animus in the decision to promote Berry instead of Colon. See Weiss v. JPMorgan Chase & Co., 332 Fed.Appx. 659, 663 (2d Cir. 2009) (finding that the “stark disparity between the qualifications” of plaintiff and the employee who replaced him “call[ed] into question” whether employer's rationale for termination was “pretextual”); Spires v. MetLife Grp., Inc., No. 18 Civ. 4464 (RA), 2019 WL 4466393, at *5 (S.D.N.Y. Sept. 18, 2019) (finding that plaintiff satisfied the “minimal” standard to plead employment discrimination by alleging that employee who was promoted was a similarly situated individual outside his protected class but was “less experienced and less qualified”); Kent-Friedman v. N.Y. State Ins. Fund, No. 18 Civ. 4422 (VM), 2018 WL 6547053, at *2 (S.D.N.Y. Nov. 16, 2018) (finding that plaintiff adequately alleged employment discrimination where she alleged that “males were promoted or hired for positions for which she applied and was qualified to fill”). Accordingly, the Court finds that Colon has adequately alleged a discrimination claim based on the 2016 Promotion Denial.

3. The 2016 Functional Demotion

Colon alleges that Berry, upset that he had opposed her promotion, discriminated and retaliated against him by removing his oversight of Timekeeping, Payroll, Benefits Administration, and Salary Administration, naming Williams, a black female, as her direct report, and giving those duties to Williams despite her lesser qualifications and experience as compared to Colon. (ECF No. 1 at 15 ¶¶ 78-81). Colon complained unsuccessfully to Berry that the 2016 Functional Demotion was discriminatory on the basis of race and ancestry. (Id. at 15 ¶ 81).

Defendants do not dispute that Colon's allegations satisfy the first three prongs of a prima facie case of discrimination, but do dispute whether his allegations give plausible support to the conclusion that Berry's reassignment of Colon's duties to Williams occurred under circumstances giving rise to an inference of discrimination on the basis of race or ancestry. (ECF No. 51 at 1921). In response, Colon points to the low number of Hispanic individuals in high-level positions, and his allegations that Banks gave “top jobs to unqualified white candidates coming from the Mayor's office” and removed “high-level Hispanic employees like Colon.” (ECF No. 54 at 21 (citing ECF No. 1 ¶¶ 34, 66-72, 158(b))).

“An inference of discrimination can arise from circumstances including, but not limited to, ‘the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Littlejohn, 795 F.3d at 312 (quoting Leibowitz, 584 F.3d at 502). Here, as the plaintiff did in Littlejohn, Colon has alleged that he was replaced by a less-qualified employee outside his protected group, which are allegations that “are more than sufficient to make plausible [his] claim that [his] demotion occurred under circumstances giving rise to an inference of discrimination.” Id. at 313. Colon's allegations stand in contrast to the “one allegation” that the plaintiff “believe[d]” that her work was reassigned to someone outside her protected group, which was insufficient to “warrant the requisite inference of discrimination” in Wallace v. Esper, No. 18 Civ. 6525 (RA), 2019 WL 4805813, at *7 (S.D.N.Y. Sept. 30, 2019). Therefore, the Court finds that Colon's particularized allegations that his duties were reassigned to someone who was outside of his protected group and was less qualified adequately give rise to a plausible inference that the 2016 Functional Demotion “occurred under circumstances giving rise to an inference of discrimination.” Littlejohn, 795 F.3d at 313; see Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (explaining that replacement of plaintiff with someone outside protected class will ordinarily suffice to establish inference of discrimination at prima facie stage); de la Cruz v. N.Y.C. Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996) (finding that plaintiff satisfied fourth prong of prima facie case by alleging that he (a Hispanic male) was replaced by a black female). Accordingly, the Court finds that Colon has adequately alleged a discrimination claim based on the 2016 Functional Demotion.

4. 2018 Demotion and Salary Reduction

Colon alleges that the 2018 Demotion and Salary Reduction constituted discrimination. (ECF No. 1 at 19 ¶¶ 100-17). He admits, however, that after he appealed, the reduction and demotion were rescinded and he was “restored to the title of Administrative Staff Analyst Managerial Level 4, with full salary and retroactive pay and benefits effective to September 12, 2018.” (Id. at 28 ¶¶ 161-62). Colon's admission that he was restored to his position and salary is “fatal to [his] allegation of an adverse employment action.” Bonds v. Cty. of Westchester, No. 19 Ci. 1712 (KMK), 2020 WL 4347704, at *10 n.11 (S.D.N.Y. July 28, 2020) (collecting cases in which a plaintiff who was restored to former position and salary precluded finding of any adverse employment action); see Krinsky v. Abrams, No. 01 Civ. 5052, 2007 WL 1541369, at *8 (E.D.N.Y. May 25, 2007) (“Mediate actions . . . even if constituting an adverse employment action, may not lead to legally cognizable harm if by some subsequent action on the part of the employer, the employee is restored to his or her previous status.”), aff'd, 305 Fed.Appx. 784 (2d Cir. 2009). Accordingly, the 2018 Demotion and Salary Reduction does not give rise to a cognizable Discrimination Claim.

5. Disciplinary Charges and Termination

Colon alleges that he was singled out for the Disciplinary Charges relating to the Medicaid scheme and subsequently terminated because of his race and ancestry, while non-Hispanic employees “who knew about, condoned, participated in or encouraged the Medicaid billing practices faced no discipline or termination.” (ECF No. 54 at 22; see ECF No. 1 at 25 ¶ 141, 33 ¶ 197). Colon alleges that these actions were discriminatory, and these allegations also form the basis for his Selective Enforcement Claim. Defendants argue that this claim should be dismissed because Colon has failed to allege that any discriminatory or degrading comments were made, and he cannot show disparate treatment because the OATH Proceeding amounts to a preclusive factual finding that Colon “bore singular responsibility for knowingly perpetuating a longstanding scheme that defrauded New York State.” (ECF No. 51 at 22).

As noted above, to prevail on a selective enforcement theory, a plaintiff must identify specific instances in which he was singled out for unlawful treatment in contrast to other similarly-situated employees. See Albert v. Carovano, 851 F.2d 561, 573 (2d Cir. 1988). An employee is similarly situated to employees who were (1) “subject to the same performance evaluation and discipline standards, ” and (2) “engaged in comparable conduct.” Graham, 230 F.3d at 40. The employees must be similarly situated “in all material respects.” Id. at 39. “Whether two employees are similarly situated ordinarily presents a question of fact for the jury.” Id. (collecting cases in which juries were asked to decide whether a plaintiff was similarly situated).

In support of his Discrimination Claim and Selective Enforcement Claim, Colon asks the Court to find that he has satisfied his “minimal burden” at the pleading stage by presenting a “mosaic” of evidence that includes:

(i) HRA's high-level Hispanics and Bank's [sic] disregard for the problem; (ii) Colon's unequal pay; (iii) Colon's denial of promotion in favor of Berry, a less-qualified white employee; (iv) Berry's functional demotion of Colon; (v) the rush to improperly reduce Colon's salary in violation of HRA policy, ([ECF No. 1 at 21] ¶¶ 115-17); and (vi) Banks's and Defendants' pattern of pushing unqualified white individuals to receive high-level positions outside the proper selection procedure while Colon's duties were slowly reduced until his termination.

(ECF No. 54 at 22). Colon cites in support the Second Circuit's decision in Vega v. Hempstead Union Free School District, in which the court explained that a plaintiff could “prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employer's stated reason for its employment action was pretext to cover up discrimination . . . or by otherwise creating a ‘mosaic' of intentional discrimination by identifying ‘bits and pieces of evidence' that together give rise to an inference of discrimination.” 801 F.3d 72, 87 (2d Cir. 2015) (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998) abrogated in part on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).

In Vega, the Second Circuit pointed to at least three allegations that the plaintiff suffered an adverse employment action “because of” his Hispanic ethnicity: (1) “he was assigned a large percentage of Spanish-speaking students because he [was] Hispanic and bilingual, while his similarly-situated co-workers were not assigned additional work”; (2) a “University of Puerto Rico” banner was placed outside his classroom; and (3) there was an attempt to transfer him to a Hispanic principal's school. 801 F.3d at 88-89. The court found that these actions, in combination, were “plausibly connected to [his] Hispanic background and therefore provide[d] a contextual basis for inferring discrimination, ” and he had “plausibly alleged that his Hispanic background was a ‘motivating factor'” that contributed to his adverse employment action. Id. at 89 (citing Raniola v. Bratton, 243 F.3d 610, 628 (2d Cir. 2001)).

Here, Colon's Complaint lacks the type of allegations connecting his Disciplinary Charges and Termination to his race or ancestry that existed in Vega; there are no racial or ethnic connotations to any of the six actions cited above, and there are no allegations of discriminatory or degrading comments by any of the Defendants or the other employees mentioned in the Complaint. See Littlejohn, 795 F.3d at 312 (noting that “none of Defendants' actions directly indicates racial bias”). Colon appears to base this Selective Enforcement Claim on the theory that, that because he was charged and terminated, and others outside his protected group were not, it must have been because he was Hispanic, but such a conclusory leap is not sufficient to allege a plausible inference that his Hispanic background was a “motivating factor” in the Disciplinary Charges or his Termination. See Mears v. Allstate Indem. Co., 336 F.Supp.3d 141, 151 (E.D.N.Y. 2018) (dismissing Section 1981 claim where there was “nothing in the complaint or the supporting documents to indicate that the denial was based on any racial animus”). Accordingly, the Court finds that Colon has failed to plausibly allege a Selective Enforcement Claim against any of the Defendants and has not adequately plead that the Disciplinary Charges and Termination were discriminatory based on his race and ancestry.⁴

4 Defendants ask the Court to dismiss Colon's Selective Enforcement Claim based on Judge Spooner's rulings in the OATH Proceeding that Colon “bore singular responsibility” for the Medicaid scheme. (ECF No. 51 at 22). Although Defendants are correct that federal courts recognize as preclusive factual findings in state administrative proceedings, see, e.g., Doe v. Pfrommer, 148 F.3d 73, 79 (2d Cir. 1998), such factual findings do not necessarily preclude a finding of improper discrimination. See Leon v. N.Y.C Dep't of Educ., 612 Fed.Appx. 632, 635 (2d Cir. 2015) (explaining that “[a] hearing officer's determination that the plaintiff had engaged in the charged conduct, and that these violations called for [the plaintiff's] termination, does not preclude a jury from later finding that the plaintiff was also terminated at least in part because of discriminatory reasons”); Snowden v. Solomon, No. 17 Civ. 2631 (VB), 2020 WL 509057, at *6 (S.D.N.Y. Jan. 31, 2020) (giving preclusive effect to factual findings in administrative proceeding but holding that such findings did not collaterally estop retaliation claim). Thus, even if the Court were to find that Colon adequately pled his Selective Enforcement Claim, Judge Spooner's factual findings, although they may be entitled to preclusive effect, would not collaterally estop such a claim.

D. The Retaliation Claim

In his Retaliation Claim, Colon alleges that he was subject to retaliation for his complaints about race and ancestry discrimination and unlawful personnel actions that benefitted non-Hispanic candidates and employees. (ECF No. 1 at 33-34 ¶¶ 202-03). Colon alleges that his protected activity consists of: (1) his December 2014 complaints to Brune about Yeaw's discriminatory treatment in retaliation for Colon's complaints about hiring white employees (id. at 12-14 ¶¶ 47-58); (2) his May 2016 to July 2017 complaints about his unequal pay (id. at 10 ¶ 60); (3) his October 2016 complaints to Brune about Berry's promotion (id. at 14-15 ¶¶ 7074); (4) his December 2016 complaints to Berry about the 2016 Functional Demotion (id. at 15 ¶¶ 78-81); (5) his June 2017 complaints to Berry about unequal pay (id. at 18 ¶¶ 85-89); (6) his August 2018 complaints to Neal about the removal of his managerial duties (id. at 19-20 ¶¶ 10004); and (7) his complaints at various times about “white cronyism.” (ECF No. 54 at 32-33). The adverse actions he alleges he experienced as a result include: (a) his exclusion from high-level meetings and unfair criticism (ECF No. 1 at 14 ¶ 65); (b) the 2016 Functional Demotion and the 2018 Demotion and Salary Reduction (id. at 15 ¶¶ 78-81, 20 ¶¶ 103-04); (c) the Promotion Denial (id. at 15 ¶ 76); (d) causing the rescinding of the DDC Offer (id. at 18-19 ¶¶ 90-99); (e) asserting the Disciplinary Charges (id. at 24-25 ¶¶ 140-41); and (f) the Termination (id. at 29 ¶ 169). (See ECF No. 54 at 33).

Colon's Retaliation Claim does not arise under Section 1983 because “[t]he Equal Protection Clause does not protect against retaliation due to complaints of racial discrimination.” Littlejohn, 795 F.3d at 315 n.14 (citing Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996)). Rather, “[r]etaliation claims can be brought under § 1981.” Sosa, 368 F.Supp.3d at 516; see Littlejohn, 795 F.3d at 315 n.14 (“Section 1981, however, does encompass retaliation claims.”) (citing CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 (2008)). Retaliation claims under Section 1981 are analyzed pursuant to the principles set forth in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3(a) (“Title VII”), ⁵ and the McDonnell Douglas burden-shifting analysis. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). “[T]he allegations in the complaint need only give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas[.]” Littlejohn, 795 F.3d at 316. To state a prima facie retaliation claim sufficient to survive a motion to dismiss, a plaintiff must plausibly allege that: (1) he suffered a “materially adverse employment action, ” Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007); (2) he participated in a “protected activity”; and (3) the adverse employment action is “causally connected” to his participation in the protected activity. Bermudez, 783 F.Supp.2d at 575; see Littlejohn, 795 F.3d at 315-16 (quoting Hicks, 593 F.3d at 164).

5 “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). The purpose of this provision is “to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice.” Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).

Defendants argue that Colon has failed to allege that “any alleged adverse action resulted from his protected activity.” (ECF No. 51 at 22). For the reasons set forth below, the Court finds that Colon has adequately alleged a retaliation claim, although more limited than Colon himself proposed, sufficient to survive the Motion.

1. Materially adverse employment action

A plaintiff sustains an adverse employment action if he “endures a ‘materially adverse change' in the terms and conditions of employment.” Bermudez, 783 F.Supp.2d at 576 (quoting Richardson v. N.Y.S. Dep't of Corr. Servs., 180 F.3d 426, 446 (2d Cir. 1999)). A materially adverse change is one that is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal citation 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.” Id.

Defendants dispute whether Colon's complaints about excessive criticism and exclusion from high-level meetings rise to the level of a materially adverse employment action, but do not dispute that the 2016 Promotion Denial, the 2016 Functional Demotion and the 2018 Demotion and Salary Reduction, obstruction of the DDC Offer, Disciplinary Charges, and the Termination do so qualify. (ECF No. 51 at 25). The Court agrees.

“[T]rivial harms” comprised of “petty slights or minor annoyances that often take place at work and that all employees experience” are not materially adverse. Tepperwein v. Entergy Nuclear Oper., Inc., 663 F.3d 556, 568 (2d Cir. 2011). Similarly, “criticism of any employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not adverse employment action.” Id. at 570 (internal citation omitted). Accordingly, Colon may not base his Retaliation Claim on allegations that he was criticized and excluded from meetings.

In addition, Colon's claim that Banks and Calhoun retaliated against him by making negative comments that prevented him from obtaining the DDC Offer are based solely “[u]pon information and belief” and Banks's and Calhoun's “unusual” friendly greetings to him. (ECF No. 1 at 18-19 ¶¶ 92-97). Allegations made on information and belief “fail to state a claim when a plaintiff does not support them with a statement of facts that create a plausible inference of their truth.” Moore v. City of N.Y., No. 15 Civ. 6600 (GBD) (JLC), 2017 WL 35450, at *23 (S.D.N.Y. Jan. 3, 2017). The Court finds that Colon has failed to include any facts creating a plausible inference that Banks and Calhoun had anything to do with the rescinding of the DDC Offer. The fact that Banks “smiled pleasantly” and Calhoun greeted him with “a big smile” do not give rise to an inference that Banks and Calhoun “took an adverse employment action” against him, let alone that they took that action “because of” his complaints. Vega, 801 F.3d at 88; see Rafferty v. Hempstead Union Free Sch. Dist., No. 18 Civ. 3321 (ADS) (AYS), 2019 WL 7598671, at *15 (E.D.N.Y. Aug. 21, 2019) (noting that allegations that defendant was friendly with plaintiff “undercut” claim that termination was motivated by racial animus). Accordingly, the Court finds that Colon may not base his Retaliation Claim on the fact that he was not hired for the DDC position.

For the same reasons set forth above, Colon may not base his Retaliation Claim on the 2018 Demotion and Salary Reduction. (See supra § IV.C.4).

Colon may, however, base his Retaliation Claim on the 2016 Promotion Denial, the 2016 Functional Demotion, the Disciplinary Charges, and the Termination, each of which is a materially adverse action that would dissuade a reasonable employee from complaining about discrimination. See Tepperwein, 663 F.3d at 568.

2. Protected activity

A plaintiff participates in a protected activity when he “‘oppose[s] any practice made an unlawful employment practice by [Title VII], or because [he] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].'” Murdaugh v. City of N.Y., No. 10 Civ. 7218 (HB), 2011 WL 798844, at *5 (S.D.N.Y. Mar. 8, 2011) (quoting 42 U.S.C. § 2000e-3(a)). A retaliation claim may succeed “‘when the underlying conduct complained of was not in fact unlawful so long as [the plaintiff] can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.'” La Grande v. DeCrescente Distrib. Co., 370 Fed.Appx. 206, 212 (2d Cir. 2010) (quoting Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)).

Defendants dispute that Colon's complaints about alleged cronyism and patronage (category #7, supra § IV.E.1) constitute protected activity. (ECF No. 51 at 23). As the Second Circuit has explained, Title VII does not “forbid[] favoritism, nepotism, or cronyism, so long as it is not premised on animus against a protected class.” Vill. of Freeport v. Barrella, 814 F.3d 594, 613 (2d Cir. 2016). Here, Colon alleges that “Employee #3, ” a white female, was hired as Deputy Commissioner of Employment Services, instead of leaving the position open, (ECF No. 1 at 27 ¶ 158), but this allegation does not allege any facts supporting an inference that Employee #3's hiring was “motivated by a prohibited animus.” Frederick v. United Brhd. of Carpenters, 665 Fed.Appx. 31, 33 (2d Cir. 2016) (summary order). Similarly, his reference to several other employees who benefitted from the alleged cronyism lacks any facts suggesting their hiring was based a motivation prohibited by Title VII. (ECF No. 1 at 27 ¶ 158). Therefore, the Court agrees that Colon's complaints about alleged cronyism and patronage do not constitute protected activity for purposes of his Retaliation Claim.

As Defendants appear to concede, however, each of the following five complaints by Colon could reasonably have been understood “to protest or oppose statutorily prohibited discrimination, ” Benn v. City of N.Y., 482 Fed.Appx. 637, 638-39 (2d Cir. 2012): (1) his May 2016 to July 2017 complaints about his unequal pay (ECF No. 1 at 10 ¶ 60); (2) his October 2016 complaints to Brune about Berry's promotion (id. at 14-15 ¶¶ 70-74); (3) his December 2016 complaints to Berry about the 2016 Functional Demotion (id. at 15 ¶¶ 78-81); (4) his June 2017 complaints to Berry about unequal pay (id. at 18 ¶¶ 85-89); (5) his August 2018 complaints to Neal about the removal of his managerial duties (id. at 19-20 ¶¶ 100-04) ((1)-(5) together, the “Complaints”).⁶ Therefore, Colon has adequately alleged that each of these five Complaints constituted protected activity for purposes of his Retaliation Claim.

6 Colon's December 2014 complaints to Brune about Yeaw's discriminatory treatment in retaliation for Colon's complaints about hiring white employees (ECF No. 1 at 12-14 ¶¶ 47-58) fall outside the statute of limitations and cannot serve as basis for his retaliation claim. (See supra § IV.C).

3. Causal connection

“To adequately plead causation, ‘the plaintiff must plausibly allege that the retaliation was a “but-for” cause of the employer's adverse action.'” Duplan, 888 F.3d at 625 (quoting Vega, 801 F.3d at 90-91). In this context, but-for causation does not “require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.” Vega, 801 F.3d at 91. “Causation may be shown by direct evidence of retaliatory animus or inferred through temporal proximity to the protected activity.” Duplan, 888 F.3d at 625. A plaintiff does not “need[] to demonstrate a connection between the alleged retaliatory acts and his ethnicity.” Vega, 801 F.3d at 90. When temporal proximity is the basis asserted to support an inference of retaliation for purposes of establishing a prima facie case, “the proximity must be ‘very close.'” Dhar v. City of N.Y., 655 Fed.Appx. 864, 865-66 (quoting Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (summary order)).

The Second Circuit has “not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action” for the purpose of allowing the district courts “to exercise [their] judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). In Espinal, the Second Circuit compared Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980), in which a causal connection was found despite the passage of eight months between the complaint and the retaliatory act, and Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990), in which the passage of three months between the complaint and the adverse action was too long to establish a causal connection, and held that a causal connection existed despite the passage of six months between the plaintiff's complaint and the retaliatory action. 558 F.3d at 129; see Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cty., 252 F.3d 545, 554-55 (2d Cir. 2001) (reviewing cases where temporal gap of eight months was the longest found to suggest causal relationship); Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (finding “four-month time span sufficient in this case to establish causation”). Many other courts in this Circuit “have held that periods of two months or more defeat an inference of causation.” Ragin v. E. Ramapo Cent. Sch. Dist., No. 05 Civ. 6496 (PGG), 2010 WL 1326779, at *24 (S.D.N.Y. Mar. 31, 2010); see Zabar, 2020 WL 2423450, at *7 (collecting cases in which courts noted that the passage of two to three months between protected activity and adverse employment action defeated inference of causation). Ultimately, a district court must consider both “the temporal proximity and the particular context” of the case before it. Summa, 708 F.3d at 128.

As explained above, Colon has not pled direct evidence of retaliatory animus motivating Defendants' adverse treatment, and thus must rely on the temporal proximity approach to establishing causation for his Retaliation Claim. (See supra § IV.D). Defendants argue that each of Colon's Complaints are either temporally or conceptually “too attenuated to support causation.” (ECF No. 51 at 36). In response, Colon argues that the Court should view his Complaints “in the aggregate” as “a campaign of increasingly adverse actions in response to his complaints” over two years leading to his termination that are the equivalent of “a ‘drumbeat of retaliatory animus.'” (ECF No. 54 at 33 (quoting Duplan, 888 F.3d at 626)).

The Court finds that each of Defendants' adverse actions - the 2016 Promotion Denial, the 2016 Functional Demotion, Disciplinary Charges, and the Termination - closely followed or occurred in tandem with the Complaints, which spanned May 2016 through August 2018. Colon alleges that between May 2016 until July 2017, he made comments about his unequal pay, and in retaliation, in November 2016 he was denied a promotion in favor of Berry and in November 2017, his hiring for the position at DDC was impeded. (ECF No. 1 at 10 ¶ 60, 15 ¶¶ 76, 79, 18-19 ¶¶ 90-99). His October 2016 complaints to Brune about Berry's promotion also shortly preceded the 2016 Promotion Denial. (Id. at 14-15 ¶¶ 70-74, 76). Finally, his August 2018 complaints to Neal about the removal of his managerial duties were just weeks before the 2018 Demotion and Salary Reduction and initiation of the Disciplinary Charges. (Id. at 19-20 ¶¶ 100-04; 24 ¶ 140). He also alleges that his December 2016 complaints to Berry about the 2016 Functional Demotion and his June 2017 complaints to Berry about unequal pay (id. at 15 ¶¶ 78-81, 18 ¶¶ 85-89; 1819 ¶¶ 90-99) were part of the stream of retaliatory conduct that culminated on July 29, 2019, six weeks after Judge Spooner's recommendation, when Defendants terminated his employment. (Id. at 28-29 ¶¶ 163, 169). These actions, “[t]aken together . . . plausibly paint a mosaic of retaliation and an intent to punish [Colon] for complaining of discrimination.” Vega, 801 F.3d at 92; see Duplan, 888 F.3d at 626 (finding that “an inference of causation [was] more easily drawn when one considers the facts as a whole”). Given that “the burden for establishing a prima facie case of retaliation is ‘de minimis, '” the Court concludes that Colon's allegations are sufficient to state the causal connection necessary for a claim for retaliation. Duplan, 888 F.3d at 626 (quoting Hicks, 593 F.3d at 164).

E. Liability of Individual Defendants for the Discrimination and Retaliation Claims

Having determined that Colon has adequately pled certain aspects of his Discrimination Claim and his Retaliation Claim, the Court must evaluate which Defendants must face these claims. See Littlejohn, 795 F.3d at 313. “An individual may be held liable under §§ 1981 and 1983 only if that individual is ‘personally involved in the alleged deprivation.'” Littlejohn, 795 F.3d at 314 (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (addressing § 1983)); see Patterson, 375 F.3d at 229 (addressing § 1981)). A plaintiff may plead personal involvement by alleging facts showing that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom, under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.

Back, 365 F.3d at 127. In addition, “a plaintiff must also establish that the supervisor's actions were the proximate cause of the plaintiff's constitutional deprivation. Finally, as with individual liability, in the § 1983 context, a plaintiff must establish that a supervisor's behavior constituted intentional discrimination on the basis of a protected characteristic. . . .” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014).

The Court will analyze which Defendants may be held liable for the claims that Colon has adequately pled.

1. Discrimination Claim based on the 2016 Promotion Denial

The Court determined that Colon has adequately pled a Discrimination Claim based on the fact that Berry, not he, was promoted to the position of Executive Deputy Commissioner of HR. (See supra § IV.C.2). Colon's allegations reference only three of the Defendants: Brune, Banks, and Yeaw. (ECF No. 1 at 14-15 ¶¶ 67-77). Thus, this claim has not been asserted against Berry, Neal, Calhoun, Ligresti, or McGinn.

Colon alleges that Brune conducted the interviews for the position and made the decision to appoint Berry, instead of Colon, to the position. (ECF No. 1 at 14-15 ¶¶ 71-72, 76). This allegation is sufficient to plead that Brune was “directly involved in the constitutional violation, ” Back, 365 F.3d at 127, and therefore is sufficient to allege Brune's personal involvement.

Colon alleges only “[u]pon information and belief” that Banks and Yeaw “pressured Brune” to hire Berry. (ECF No. 1 at 15 ¶ 77). The Second Circuit has held that “pleading on information and belief in employment discrimination suits can suffice to meet the relevant plausibility standard when the relevant facts are particularly within the possession, knowledge, and control of the defendant.” Moore, 2017 WL 35450, at *23 (citing Ariste Records LLC v. Doe, 604 F.3d 110, 120 (2d Cir. 2010) & Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008)). Allegations on information and belief “fail to state a claim when a plaintiff does not support them with a statement of facts that create a plausible inference of their truth.” Id. (collecting cases). Here, Colon's allegation fails to plead any facts supporting his assertion that, on information and belief, Banks and Yeaw “pressured” Brune to hire Berry instead of him, and, accordingly, the Court finds that Colon has failed to allege Banks's and Yeaw's personal involvement in this claim. See id., at *24 (recommending dismissal of claims against defendant as to whom plaintiff made allegations on information and belief); Munoz-Nagel v. Guess, Inc., No. 12 Civ. 1312 (ER), 2013 WL 1809772, at *6 (S.D.N.Y. Apr. 30, 2013) (dismissing claims made on information and belief).

Accordingly, the Court recommends that this Discrimination Claim proceed only as to Brune, and be dismissed as to Banks and Yeaw.

2. Discrimination Claim based on the 2016 Functional Demotion

Colon alleges that, in December 2016, Berry removed his management over Timekeeping, Payroll, Benefits Administration, and Salary Administration, and that he complained to her that this demotion was improperly based on his race and ancestry. (ECF No. 1 at 15 ¶¶ 78-81). Colon does not allege that any other Defendant was involved in the 2016 Functional Demotion. This allegation is sufficient to allege Berry's personal involvement in his demotion, and therefore, the Court recommends that this discrimination claim proceed as to Berry only.

3. Retaliation Claim

a. The 2016 Functional Demotion

For the same reasons set forth above, Colon's Retaliation Claim based on the 2016 Functional Demotion may proceed only as to Berry. (See supra § IV.E.2), b. 2016 Promotion Denial

For the same reasons set forth in § IV.E.1, supra, the Court finds that Colon has adequately alleged personal involvement only as to Brune, but not as to Banks and Yeaw, for the 2016 Promotion Denial.

c. Disciplinary Charges

Colon alleges that several of the Defendants as well as other non-party HRA employees were involved in the Medicaid scheme (see ECF No. 1 at 22-25 ¶¶ 118-42), but that “Banks and the Defendants falsely pinned the Medicaid misappropriation on” him and that “Defendants” initiated the Disciplinary Charges against him. (Id. at 24 ¶¶ 139-40). Group pleading against multiple defendants “is expressly disfavored with regard to Section 1983 claims.” Falcon v. City Univ. of N.Y., No. 15 Civ. 3421 (ADS) (ARL), 2016 WL 3920223, at *12 (E.D.N.Y. July 15, 2016); see Bertuglia v. City of N.Y., 839 F.Supp.2d 703, 723 n.4 (S.D.N.Y. Mar. 19, 2012) (explaining that it was “insufficient for the plaintiffs to rely on group pleading against all the [] defendants without making specific factual allegations against the individual defendants”). Colon's group pleading as to “Defendants” contrasts with his specific allegations as to Banks's personal involvement in the decision to bring the Disciplinary Charges, and Colon does not otherwise allege how any of the Defendants, aside from Banks, had a role in or authority to direct the initiation of the Disciplinary Charges. See Dass v. CUNY, No. 18 Civ. 11325 (VSB), 2020 WL 1922689, at*5 n.9 (S.D.N.Y. Apr. 21, 2020) (contrasting specific allegations against one defendant as opposed to conclusory group pleading about multiple defendants, and dismissing claims as to the latter). Colon's allegations also are distinguishable from those in Cardwell v. Davis Polk & Wardwell LLP, where the court held that the allegation that three defendants participated in a meeting during which they collectively decided to fire the plaintiff did not amount to impermissible group pleading. No. 19 Civ. 10256 (GHW), 2020 WL 6274826, at *38 (S.D.N.Y. Oct. 24, 2020). Here, Colon does not include any similar allegations of a discussion, meeting, or other collective action by all of the Defendants to assert the Disciplinary Charges against him. Accordingly, the Court finds that Colon has failed to allege against the Defendants other than Banks sufficient personal involvement in this retaliatory action.

d. Termination

Colon alleges that, on July 29, 2019, “Banks adopted Judge Spooner's recommendation and terminated” him. (ECF No. 1 at 29 ¶ 169). Colon does not allege that any other Defendant was personally involved in his Termination. Accordingly, the Court finds that Banks is the only Individual Defendant against whom this claim may proceed.

F. Qualified immunity

Defendants make a cursory argument that, to the extent any of Colon's federal claims are cognizable, they are nevertheless entitled to qualified immunity from liability because Colon's “entirely conclusory and baseless claims are insufficient to show that the individual defendants violated his statutory or constitutional rights.” (ECF No. 51 at 17-18).

“Qualified immunity defeats a federal claim ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.'” Walker v. Kim, No. 18 Civ. 4090 (VEC) (SLC), 2020 WL 7685100, at *11 (S.D.N.Y. Apr. 24, 2020) (quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016) (internal citation omitted)), adopted by 2020 WL 7079421 (S.D.N.Y. Dec. 3, 2020). It is well established in the Second Circuit that, “[u]sually, the defense of qualified immunity cannot support the grant of a [Rule] 12(b)(6) motion for failure to state a claim upon which relief can be granted.” Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983). A defendant seeking dismissal at the pleading stage based on a qualified immunity defense “faces a formidable hurdle . . . and is not usually successful.” Field Day, LLC v. Cty. of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006). The qualified immunity defense “will succeed only where entitlement to qualified immunity can be established ‘based [solely] on facts appearing on the face of the complaint.'” Bryant v. Steele, 25 F.Supp.3d 233, 245 (E.D.N.Y. June 3, 2014) (citing McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)). “For these reasons, a [Rule] 12(b)(6) motion is a mismatch for a qualified immunity defense and almost always a[n] improper basis for dismissal.” Ramirez v. Hempstead Union Free Sch. Dist. Bd. of Educ., 33 F.Supp.3d 158, 174 (E.D.N.Y. 2014); see Barnett v. Mt. Vernon Police Dep't, 523 Fed.Appx. 811, 813 (2d Cir. 2013) (noting that qualified immunity is “almost always a bad ground of dismissal”) (internal citation omitted).

Given the Court's conclusions above that Colon has adequately pled at least some of his Discrimination and Retaliation Claims, and the cursory nature of Defendants' assertion of the qualified immunity defense - amounting to just three sentences in their Motion - the Court concludes that Defendants have not surmounted the “formidable hurdle” required to sustain the qualified immunity defense, and suggests that Defendants would “be well advised” to defer this argument to summary judgment. See Barnett, 523 Fed.Appx. at 813 (internal citations omitted). Accordingly, the Court finds that Defendants have failed to show “on the face of the complaint” that the qualified immunity protects them from liability. McKenna, 386 F.3d at 436.

G. Municipal Liability Claim

Colon asserts that the City “maintains a policy and custom of unlawful discrimination on the basis of race and ancestry in hiring, retention, promotion and compensation of employees, ” which manifested itself in Banks's decision to adopt Judge Spooner's recommendation and terminate his employment in retaliation for his complaints about unlawful discrimination. (ECF No. 1 at 31-32 ¶¶ 189-94; see ECF No. 54 at 30). Defendants argue in their Motion that Colon's “conclusory allegation” of discriminatory policies or customs are insufficient to impute municipal liability on the City. (ECF No. 51 at 15). In opposition, Colon argues that, because it is undisputed that Banks had “final policymaking authority” in deciding to terminate Colon, Banks's actions represent the policy of the City for purposes of Monell liability. (ECF No. 54 at 30).

The Second Circuit has explained that “[a] single unlawful discharge, if ordered by a person ‘whose edicts or acts may fairly be said to represent official policy,' . . . may support an action against the municipal corporation.” Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983) (quoting Monell, 436 U.S. at 694). To identify such officials, courts look to whether the “official has final authority over significant matters involving the exercise of discretion, ” such that “the choices he makes represent government policy.” Id. “An official has final authority if his decisions, at the time they are made, for practical or legal reasons, constitute the municipality's final decisions.” Id. The official's title is “relevant, ” but “not dispositive of his authority to make policy.” Id.

As Colon correctly notes, Defendants do not dispute “that Banks was the final-decision maker [in] firing Colon.” (ECF No. 54 at 30). Colon has adequately alleged, and Defendants do not dispute, that Banks “had authority to order [his] discharge, ” and that Banks's “authority over personnel decisions was final.” Rookard, 710 F.2d at 45. Further, Colon's allegation that Banks's termination of his employment in retaliation for the Complaints Colon made about unlawful discrimination “violate[d] [his] civil rights is sufficient at this stage to bring a § 1983 claim against the City[.]” Meyers v. Health & Hosps. Corp., No. 14 Civ. 7448 (CBA) (LB), 2016 WL 2946172, at *11 (E.D.N.Y. May 18, 2016). Accordingly, the Court finds that Colon has sufficiently pled a claim for municipal liability against the City based on his Termination in retaliation for his Complaints about improper race and ancestry discrimination.

H. NYSHRL and NYCHRL Claims

1. Discrimination Claims

“Claims of employment discrimination under the NYSHRL [and the NYCHRL] are analyzed under the same McDonnell Douglas framework applied to Section 1983 and Title VII claims of employment discrimination.” Bermudez, 783 F.Supp.2d at 576 (citing Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010)); see Concey, 2011 WL 4549386, at *14 & n.14 (NYSHRL); Ruiz v. City of N.Y., No. 14 Civ. 5231 (VEC), 2015 WL 5146629, at *2 (S.D.N.Y. Sept. 2, 2015) (NYCHRL). Accordingly, having concluded that Colon has adequately alleged the Discrimination Claim based on the 2016 Promotion Denial and the 2016 Functional Demotion under federal law, he has also adequately alleged the NYSHRL Discrimination Claim and the NYCHRL Discrimination Claim.

2. Retaliation Claims

“[R]etaliation claims under the NYSHRL are treated the same as retaliation claims under Section 1983 and Section 1981.” Bermudez, 783 F.Supp.2d at 576 (citing McMenemy v. City of Rochester, 241 F.3d 279, 283 n.1 (2d Cir. 2001)). “Unlike retaliation claims under Section 1983 and the NYSHRL, ” however, “the retaliation complained of under the NYCHRL need not result in an ultimate action with respect to employment . . . or in a materially adverse change in the terms or conditions of employment.” Bermudez, 783 F.Supp.2d at 577. Rather, the retaliatory act of which the plaintiff complains must “be reasonably likely to deter a person from engaging in protected activity.” Kumaga v. N.Y.C. School Constr. Auth., No. 127817/02, 27 Misc.3d 1207(A), 2010 WL 1444513, at *15 (N.Y. Sup. Ct. Apr. 2, 2010) (quoting N.Y. Admin. Code § 8-107). The plaintiff must also show a “causal link” between the protected activity and the retaliation. Id.

Here, Colon has alleged that he was fired for retaliatory reasons, i.e., as a result of his Complaints about unlawful discrimination. (ECF No. 1 at 36 ¶ 219). This allegation is sufficient to state a claim against the City under the NYSHRL and the NYCHRL. See Springs v. City of N.Y., No. 17 Civ. 451 (AJN), 2019 WL 1429567, at *15 (S.D.N.Y. Mar. 29, 2019) (permitting retaliation claims against City under NYCHRL where they were sufficient under Section 1983 and NYSRHL). Because the same personal involvement analysis applies to Colon's Retaliation Claims under the NYSRHL and NYCHRL as with Section 1983, however, this claim may only proceed against Berry as to the 2016 Demotion, against Brune as to the 2016 Promotion Denial, and against Banks as to the Disciplinary Charges and Termination.

I. The Defamation Claim

Colon asserts a defamation claim against the City, Banks, and McGinn, alleging that McGinn's statements to the press about the Disciplinary Charges falsely “implied that he engaged in unlawful activity and was a ‘bad actor, '” injuring Colon's “occupation and business.” (ECF No. 1 at 37 ¶¶ 226-29).

Defendants argue that the defamation should be dismissed because Colon failed to file the statutorily-required notice of claim, and, in any event, he “has not alleged any facts showing that McGinn's statement on behalf of HRA was false.” (ECF No. 51 at 31; see ECF No. 41). Colon responds that he was not required to file a notice of claim because he is seeking equitable relief in the form of a public retraction. (ECF No. 54 at 34-35). Colon adds that he has adequately alleged that McGinn's statements “at the behest of Banks were knowingly false and malicious.” (Id. at 35).

Under New York law, a plaintiff seeking to assert a tort claim against a municipality must file a notice of claim within 90 days of the date on which the claim arose. N.Y. Gen. Mun. L. § 50-e(1)(a). The action must be commenced within one year and 90 days of the date on which the claim arose. N.Y. Gen. Mun. L. § 50-i(1)(c). New York state courts strictly construe notice-of-claim statutes, and “failure to abide by their terms mandates dismissal of the action.” AT&T v. N.Y.C. Dep't of Human Res., 736 F.Supp. 496, 499 (S.D.N.Y. 1990). “New York courts have recognized that the notice-of-claims statute does not apply where the primary relief being sought is equitable in nature, and monetary damages are only incidental.” People United for Children, Inc. v. City of N.Y., 108 F.Supp.2d 275, 301 (S.D.N.Y. 2000). To determine whether a plaintiff primarily seeks equitable or monetary relief, a court must “‘consider the complaint in the light of all of its allegations and its full scope and purport.'” Id. (quoting Watts v. Town of Gardiner, 90 A.D.2d 615 (3d Dep't 1982)).

After reviewing the Complaint in its entirety, the Court finds that the relief Colon is seeking with respect to his Defamation Claim is primarily monetary in nature, and therefore, New York's notice-of-claim statute applies. In the section of the Complaint alleging the Defamation Claim, Colon alleges that he “suffered loss and damage to be determined at trial, but estimated to be no less than $100,000.00.” (ECF No. 1 at 37 ¶ 230). This section contains no request for a retraction or any other equitable relief. (Id. at 37). In addition, in his demand for relief, although Colon asks for several other types of injunctive and non-monetary relief, he makes no demand for a retraction. (Id. at 37-39). Accordingly, Colon was required to, but did not, file a timely notice of claim, and his failure to do so precludes his Defamation Claim.

Even if the Court were to find the notice-of-claim requirement inapplicable, the Court finds that Colon has failed to state a Defamation Claim. “Defamation is the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.” Stepanov v. Dow Jones & Co., 120 A.D.3d 28, 34 (1st Dep't 2014) (internal citations omitted). To plead a defamation claim under New York law, a plaintiff must allege: “‘(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.'” Franklin v. Daily Holdings, Inc., 135 A.D.3d 87, 91 (1st Dep't 2015) (quoting Rest. (2d) Torts § 558)).

To satisfy the falsity element, Colon must allege that McGinn's statement to the press about his termination was “substantially” false. Biro v. Conde Nast, 883 F.Supp.2d 441, 458 (S.D.N.Y. 2012). “[F]ederal courts have required plaintiffs to plead facts that, if proven, would allow a reasonable person to consider the statement false.” Tannerite Sports LLC v. NBC Universal News Grp., 864 F.3d 236, 247 (2d Cir. 2017). “[I]t is well settled in New York ‘that an alleged libel is not actionable if the published statement could have produced no worse an effect on the mind of a reader than the truth pertinent to the allegation.'” Franklin, 135 A.D.3d at 94 (quoting Guccione v. Hustler Mag., Inc., 800 F.2d 298, 301 (2d Cir. 1986)). “‘When the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage” to find that defamation occurred, “no legal harm has been done.'” Tannerite, 864 F.3d at 243 (quoting Fleckenstein v. Friedman, 266 N.Y. 19, 23 (1934)).

It is undisputed that Judge Spooner recommended that Colon be terminated based on the Disciplinary Charges, and while Colon disputes the truth of those charges, the Court is entitled to give preclusive effect to Judge Spooner's factual findings that Colon engaged in the conduct on which the Disciplinary Charges were based. See Leon, 612 Fed.Appx. at 635. Colon also admits that HRA was funded by federal and state taxpayer funds, and that he knew that certain HRA employees were not doing fully-reimbursable Medicaid work. (ECF No. 1 at 22 ¶ 118, 24 ¶ 133). Accordingly, the Court finds that McGinn's statement “cannot be reasonably understood except as being true or substantially true, ” Tannerite, 864 F.3d at 247, and accordingly, he has failed to plausibly allege a Defamation Claim.

J. Leave to Amend

To the extent that the Court grants Defendants' Motion as to any of his claims, Colon seeks leave to file an amended complaint. (ECF No. 54 at 35). Defendants oppose Colon's request on the ground that any amendment would be futile. (ECF No. 52 at 15).

“Leave to amend should be ‘freely give[n] . . . when justice so requires.'” Trujillo, 2019 WL 10703088, at *21 (quoting Fed.R.Civ.P. 15(a)(2)); Bloomberg v. N.Y.C. Dep't of Educ., 410 F.Supp.3d 608, 628 (S.D.N.Y. 2019) (permitting amended complaint after granting motion to dismiss). “District courts ‘ha[ve] broad discretion in determining whether to grant leave to amend.'” Trujillo, 2019 WL 10703088, at *21 (quoting Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000)). District courts may properly deny leave to amend if there exists “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (internal citations omitted).

The Court respectfully recommends that Colon be granted leave to amend those claims that the Court has determined were inadequately pled, but denied as to those claims the Court has found are time-barred or are procedurally-barred for failure to comply with New York's notice of claim requirement. As to the latter, “[t]he defects in these claims are not the result of ‘inadequate[] or inartful[]' pleading, and are not susceptible to cure.” Trujillo, 2019 WL 10703088, at *21 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Therefore, amendment of these claims would be futile.

V. CONCLUSION

For the reasons set forth above, the Court respectfully recommends that Defendants' Motion be GRANTED IN PART and DENIED IN PART as follows:

(1) Plaintiff's claims based on his November 2014 complaints to Brune about his salary, his April 2015 complaints about the hiring of Employee #1, and his complaints about the 2015 mayoral meetings be DISMISSED WITH PREJUDICE as time-barred.

(2) Plaintiff's Discrimination Claims based on the 2018 Demotion and Salary Reduction, the Disciplinary Charges, and the Termination be DISMISSED WITHOUT PREJUDICE.

(3) Plaintiff's Selective Enforcement Claim be DISMISSED WITHOUT PREJUDICE.

(4) Plaintiff's Retaliation Claims based on his exclusion from high-level meetings, subjection to criticism, the 2018 Demotion and Salary Reduction, and the rescinding of the DDC Offer be DISMISSED WITHOUT PREJUDICE

(5) Plaintiff's Defamation Claim be DISMISSED WITH PREJUDICE.

As to the Individual Defendants, the Court finds that Colon has adequately alleged the Discrimination Claim, and the NYSHRL and NYCHRL Discrimination Claims based on the 2016 Promotion Denial as to Brune only, and based on the 2016 Functional Demotion as to Berry only. For the Retaliation Claim and the NYSHRL and NYCHRL Retaliation Claims, Colon has also adequately alleged the temporal causal connection between certain adverse employment actions and the alleged protected activity. The following adverse employment actions based on the Complaints, as discussed above, are adequately alleged:

1. Against Brune, based on the 2016 Promotion Denial;

2. Against Berry, based on the 2016 Functional Demotion; and

3. Against Banks, based on the Disciplinary Charges and the Termination.

The Complaint fails to state any claims against Individual Defendants Neal, Calhoun, Ligresti, McGinn, and Yeaw.

As to the City, Colon has adequately alleged municipal liability with respect to the Retaliation Claim based on his Termination.

The Court further respectfully recommends that Plaintiff be granted leave to amend the Complaint with respect to those claims that are dismissed without prejudice.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).