Opinion
INDEX NO. 150403/2020
05-19-2021
THOMAS LENT, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT (NYPD) DEPUTY INSPECTOR PATRICIA MACDONALD Defendants.
NYSCEF DOC. NO. 18 PRESENT: HON. DAKOTA D. RAMSEUR Justice MOTION DATE 06/16/2020 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 17 were read on this motion to/for DISMISSAL.
Plaintiff, Thomas Lent, a Lieutenant in the New York City Police Department (NYPD), brings this action pursuant to the New York State Executive Law § 296 (NYSHRL) and New York City Administrative Code § 8-107 (NYCHRL) against the City of New York (City), the New York Police Department (NYPD), and NYPD Deputy Inspector Patricia MacDonald (MacDonald) (collectively, defendants), alleging that he was discriminated against, subjected to a hostile work environment because of his age (45), and retaliated against because of his alleged protected activity. Defendants now move pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that it fails to state a cause of action. Plaintiff opposes the motion. For the following reasons, defendants' motion is granted.
FACTUAL BACKGROUND
Plaintiff joined the NYPD Department in 1997 (NYSCEF # 5, complaint at ¶ 1). Prior to being placed on modified assignment, plaintiff was a Lieutenant in the Intelligence Bureau, Criminal Intelligence Section and was assigned as a Squad Commander of the LEAD Investigation Unit for all terrorism related matters (id. at ¶ 13). On or about February 21, 2018, plaintiff was arrested in New Jersey and was charged with an act of violence against his ex-wife (id. at ¶ 16). Due to this arrest, plaintiff was immediately placed on a 30-day suspension by the NYPD (id.). The charges against plaintiff were dismissed about one week after he was arrested (id. at ¶ 17). Subsequently, his suspension was reduced to 20 days (id. at ¶ 19).
Plaintiff alleges that MacDonald approached him on his first day back from work and told him that he was "already guilty of a domestic incident" and that he would have to "swallow a bitter pill," because of the allegations made by his ex-wife. Plaintiff also claims that McDonald told him the domestic matter would continue to be investigated but he should admit wrongdoing, and that he is "old enough to retire" and should (id. at ¶ 21).
Following the suspension, plaintiff was placed on modified duty and his gun and shield were taken away (id. at ¶ 25). Plaintiff alleges that the modified assignment restricted him from receiving overtime and evening work tours, which limited his compensation and opportunities for promotion (id.). Plaintiff alleges these steps were taken, requested, or approved by MacDonald to get plaintiff to admit to the domestic violence allegations and retire (id. at ¶ 27). Plaintiff alleges that Police Officer Tara Kobel, a member of MacDonald's unit, who plaintiff approximates to be in her mid-30s, was also involved in a domestic violence incident but was not investigated or punished (id. at ¶ 28). Plaintiff alleges he complained numerous times about his treatment but that the complaints only resulted in hostility and retaliatory action.
At one point, plaintiff was assigned to the Brooklyn Army Terminal (BAT) (id. at ¶ 34). He alleges that the parking situation at BAT was the source of much frustration to members of NYPD due to the limited number of parking spots and construction within the NYPD assigned area (id. at ¶ 35). Plaintiff alleges that many officers, including himself, wrote emails and verbally complained about the parking situation but nothing was done to fix it (id. at ¶ 36). Plaintiff alleges that a private security guard, employed by the BAT, put violation stickers on the windshield of his car and the cars of other NYPD officers. Plaintiff alleges that, upon information and belief, these stickers were signed by Lieutenant Naseer Gorgy, who is part of MacDonald's unit and are made to give the appearance of a NYPD parking sticker (id. at ¶ 37). Plaintiff acknowledges the stickers were not NYPD stickers nor were they authorized by the NYPD (id.). Plaintiff further alleges that the private security guard, who was not employed by NYPD, did not have authority to administer "department punishment" issuing the parking violation stickers (id.). Plaintiff alleges he informed Captain Ward about the ongoing situation with the private security guard and that many officers were having stickers placed on their vehicles (id. at ¶ 38).
In May 2018, plaintiff parked in an illegal spot while attending a meeting and got into a verbal confrontation with one of the private security guards (id. at ¶¶ 39-40). Plaintiff alleges that MacDonald contacted the security guard and urged him to file a complaint with the Civilian Complaint Review Board (CCRB) against plaintiff regarding the incident (id. at ¶ 43). Plaintiff alleges that the guard refused to file a CCRB complaint, but MacDonald nevertheless opened an investigation into the incident (id. at ¶ 44). Plaintiff alleges that within a week of his speaking to the private security guard, he was transferred out of his unit to a command in Manhattan (id. at ¶ 44). Plaintiff alleges that Sergeant Christopher Masterson, Sergeant John Hagan, and Sergeant David Cuce, all in their late 30s, also complained about the parking situation at BAT but were not transferred (id. at ¶ 46).
Plaintiff alleges this transfer was another attempt by defendants to force plaintiff to retire, discriminate against him based on his age, subject him to a hostile work environment, and retaliate against him for exposing discriminatory practices (id. at ¶ 45). Plaintiff further alleges that defendants used "road therapy" to discipline the plaintiff by transferring him to an assignment located further away from his place of residence in order to force him into early retirement (id. at ¶ 48). He also complains that he was subjected to unwarranted and unauthorized investigations into his personal life, place of residence and/or off-duty employment, all without any basis and designed for the sole purpose of frustrating the plaintiff and forcing him to retire (id. at ¶¶ 53-58). Plaintiff also alleges, on an undisclosed date, he was transferred from the 76th Precinct to the Housing Borough Manhattan VIPER 20 Command (id. at ¶ 66). Plaintiff alleges this assignment was also a form of "road therapy" because it took Plaintiff two to three hours to get to work every day and was a way to pressure him to retire (id.). Plaintiff further alleges this exacerbated his World Trade Center health related conditions (id.). Plaintiff alleges he is the only person in VIPER who has Monday and Tuesday off, while everyone else, especially supervisors, have some part of the weekend off (id. at ¶ 75). Plaintiff alleges he is the only person to work the 0900 by 1745 (9:00 am to 5:45 pm) tour and alleges he was told, by an unidentified person, he was assigned this tour so he would hit traffic coming into work and leaving work (id.). Plaintiff also alleges that, on more than one occasion, he requested weekends off so he could visit his children in New Jersey, but his requests were repeatedly denied (id. at ¶ 77).
Plaintiff alleges in or about November 2018, MacDonald started an investigation into an allegation that plaintiff had "stolen time" in that he would "clock in" before starting to work (id. at ¶ 72). Plaintiff alleges this allegation would be supportive of a "crime" that would have allowed MacDonald to obtain a subpoena to track him (id.). The investigation into time theft is still ongoing and plaintiff alleges he has always "clocked in" at the correct time and/or was on department issued cell phone discussing work related matters with his supervisors and subordinates (id. at ¶ 73). Plaintiff alleges that since February 2018, he has remained on modified duty and has not had access to his NYPD gun and has lost the possibilities of overtime and promotion (id. at ¶ 74). Plaintiff alleges that MacDonald has never personally investigated, interviewed, or ordered punishment of any other officers in the NYPD and instead, has members of her unit complete the investigations and interviews (id. at ¶ 78). Plaintiff alleges that, at the time he filed the complaint, none of the investigations into him have been completed and no charges have been brought (id. at ¶ 79).
DISCUSSION
Pursuant to CPLR § 3211(a)(7), a party may move to dismiss one or more causes of action asserted in a complaint on the ground that they fail to state a valid cause of action. In determining whether a cause of action is sufficiently pled so as to withstand a motion to dismiss, the court must accept the complaint's factual allegations as true, according to the plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory (see Amsterdam Hospitality Grp., LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 433 [1st Dept 2014]). However, allegations consisting of bare legal conclusions, as well as factual claims that are inherently incredible are not presumed true (see Kaisman v Hernandez, 61 AD3d 565, 566 [1st Dept 2009]; Sud v Sud, 211 AD2d 423, 424 [1st Dept 1995]).
I. Age discrimination and hostile work environment
To establish a prima facie case of age discrimination under the NYSHRL, the plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified to hold the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination (see Ferrante v American Lung Ass'n., 90 NY2d 623, 629 [1997]). The NYCHRL is more expansive than its state counterpart and requires only a plausible allegation that the plaintiff was subjected to unequal treatment because of a protected characteristic, in this case, his age (see Whitfield-Ortiz v Dep't of Ed. of the City of New York, 116 AD3d 580, 581 [1st Dept 2014].
In support of their motion to dismiss, defendants argue that the complaint contains no facts in support of the plaintiff's allegations that he was discriminated against and/or subject to a hostile work environment because of his age. They argue that the complained-of actions do not constitute adverse employment actions because they did not materially change the terms and circumstances of the plaintiff's employment as a NYPD officer. At best, defendants argue, the actions taken merely inconvenienced the plaintiff and are not actionable. Further, even if the challenged actions did constitute adverse employment actions, defendants maintain that the complaint has failed to allege any plausible claims that would indicate that the complained-of actions took place under circumstances giving rise to an inference of age discrimination.
Having reviewed the complaint in the light most favorable to the plaintiff, the Court agrees with defendants that plaintiff's allegations arc insufficient to make out a cognizable cause of action for age discrimination under either the NYSHRL or the more expansive NYCHRL.
With regard to the issues concerning parking at BAT, the complaint fails to state a cause of action for several reasons. First, the complaint itself makes it clear that the alleged adverse actions were taken not by the NYPD but by a private security guard employed by the terminal (id. at ¶ 37). In fact, plaintiff acknowledges that the NYPD did not authorize the stickers. He claims that the stickers were signed by a lieutenant in McDonald's unit but does allege that McDonald approved the stickers being issued by the private security guard. Furthermore, the lack of parking at the plaintiff's jobsite does not constitute adverse employment action as it does not materially change the terms and conditions of his employment.
Finally, there is no indication that plaintiff was denied parking access at the terminal because of his age. The plaintiff admits that other officers were denied access to the parking area and/or had stickers placed on their vehicles (id. at ¶¶ 35-37). Similarly, plaintiff's complaints that he was questioned about an ongoing investigation into his unit are not sufficient to state a claim for age discrimination, as being questioned about a job matter without any subsequent repercussions or discipline does not constitute adverse employment action. Nor is there any indication from the alleged circumstances suggesting that the motive behind the questioning of the plaintiff was age discrimination.
Plaintiff also alleges that he was transferred to Manhattan, the 76th Precinct, and VIPER in order to force him into early retirement (id. at ¶¶ 44, 60, 66). However, plaintiff has not pled facts which would establish that the transfer to VIPER constituted an adverse condition that, as opposed to a mere inconvenience, materially changed the terms and conditions of his employment. Under the NYSHRL an adverse employment action must be "[a] materially adverse change in the terms and conditions of employment" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306 [2004]). Such change must be " 'more disruptive than a mere inconvenience or an alteration of job responsibilities,' " such as " 'a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities" (id., quoting Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir. 2000]). None of the actions identified by the plaintiff constitutes a materially adverse change in the terms and conditions of employment under the NYSHRL, as they did not involve any demotion, decrease in salary, loss of privilege, diminution of responsibilities, or loss of benefits. Specifically, with regards to the transfer to VIPER, which the plaintiff characterizes as "road therapy," it is well-settled that being assigned to a work location that is less desirable or more inconveniently located than others is not by itself an adverse employment action (see Ragoo v New York City Taxi and Limousine Com'n, 132 AD3d 562 [1st Dept 2015]). It is true that under the more generous provisions of the NYCHRL the plaintiff need only plausibly allege that he was subject to an unfavorable change or treated less well than other employees because of a protected characteristic such as age (see Golston-Greene v City of New York, 184 AD3d 24, 38 [2d Dept 2020]). However, the plaintiff has failed to allege any facts from which a reasonable inference could be drawn that he was assigned to VIPER because of age discrimination.
Also unavailing are the plaintiff's claims that he was discriminated against when he was suspended after his arrest for domestic violence. There is no indication in the complaint that the suspension was anything other than the product of a reasonable employee disciplinary procedure and the plaintiff does not allege otherwise. His suspension was reduced after the charges were dismissed and there was no further action taken after that time. Plaintiff also complains about several open and ongoing investigations into his alleged misconduct. Again, there is no indication and no real allegation in the complaint that these investigations were unauthorized, pretextual or outside the bounds of normal employee disciplinary procedures. Although the criminal charges were dismissed, plaintiff's employer does not need to treat the dismissal as a resolution to the allegations before it and the NYPD's continuation with its investigation does not create an adverse employment action.
Plaintiff attempts to create an inference of discrimination surrounding this investigation by alleging that Officer Tara Kobel, who plaintiff alleges is in her mid-30s, "was not investigated nor had any punitive measures taken against her" after she was "involved in a domestic incident" (compl at ¶ 28). Plaintiff, however, does not allege that Officer Kobel was arrested in relation to the domestic incident or brought up on criminal charges and does not offer any proof that she was treated better than the plaintiff in a comparable situation because of her age. Similarly, the other open investigations of the plaintiff are authorized and there are no factual allegations pled in the complaint which would support an inference that the investigations are being pursued because of the plaintiff's age (see Pelepelin v City of New York, 189 AD3d 450, 451 [1st Dept 2020]; Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]).
Throughout the complaint, plaintiff attributes only one comment to MacDonald. He alleges that in regard to the domestic violence incident, MacDonald said he is "old enough to retire" and should. That stray comment is insufficient to suggest that any of McDonald's actions were motivated by age discrimination. There is no suggestion or inference by McDonald that the plaintiff was too old to perform his duties or that he should retire because of his age, and the complaint does not tie the comment to any further disciplinary action taken by MacDonald. There is nothing else in the complaint that could raise an inference of animus on the basis of age. Accordingly, plaintiff's claims for discrimination under both the NYSHRL and the NYCHRL, as well as his claim of hostile work environment, are dismissed.
II. Retaliation
The NYSHRL and NYCHRL prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding (see Executive Law § 296[7] and Administrative Code § 8-107[7]). Retaliation claims under the NYSHRL require a plaintiff to demonstrate that: 1) he engaged in protected activity; 2) his employer was aware of the protected activity; 3) the employer took an adverse employment action against plaintiff; and 4) there is a causal connection between the protected activity and the adverse employment action (see Vega v Hempstead Union Free Sch., 801 F3d 72, 90-91 [2d Cir. 2015]). Under the NYCHRL, a plaintiff claiming retaliation must allege that engaged in actions in opposition to an alleged act of discrimination by his employer and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action (see Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 112 [2d Cir. 2013]). Defendants argue that under either standard, the complaint fails to allege a viable cause of action for retaliation.
Here, the complaint only alleges vague and generalized allegations about complaints that he made to his supervisors regarding the treatment he was receiving. Plaintiff fails to identify the dates on which he complained, to whom he complained or the substance of the "numerous" complaints about "his treatment." Such vague allegations do not establish that the plaintiff was engaged in protected activity subject to a retaliation claim under the NYSHRL or NYCHRL. Nowhere in the complaint does the plaintiff ever allege that he made a complaint regarding harassment or treatment he received due to his age. For example, plaintiff alleges that on an unspecified date, he complained to his union delegate, Lieutenant Evan Minoghue, about the "constant harassment and the treatment he was receiving from the NYPD, his employer" (compl at ¶ 59). Plaintiff alleges his union delegate spoke with MacDonald who then opened another investigation into plaintiff alleging that he made threatening remarks to her through the union delegate (id.). Plaintiff then alleges he complained directly to MacDonald about the "treatment he was receiving" and complained to "other supervisory personnel throughout the NYPD" and about "the treatment he was receiving from [] MacDonald" and that "she was trying to force him to retire" (compl at ¶¶ 61-62). He complains that MacDonald was "trying to force him to retire," but does not allege she made any comments about his age or that he was too old to perform the duties of a police officer. Plaintiff's alleged complaints about the treatment he was receiving do not indicate that he ever complained to the defendants that he was being discriminated against because of his age (see Simms v Trustees of Columbia University, 168 AD3d 622, 622-623 [1st Dept 2019]).
Accordingly, absent any allegation that the receivers of the plaintiff's complaints would have reasonably understood him to have been complaining about unlawful discrimination or engaged in any protected activity, the plaintiff's claims for retaliation must fail.
Accordingly, it is hereby
ORDERED that the defendants' motion to dismiss is granted, and the complaint is dismissed; and it is further
ORDERED that defendants shall serve a copy of this decision and order upon plaintiff, with notice of entry, within ten (10) days of entry.
This constitutes the decision and order of this court. 5/19/2021
DATE
/s/ _________
DAKOTA D. RAMSEUR, J.S.C.