Opinion
158924/2014
09-26-2019
Michelle MILLER, Marcia Jackson, and Desmond Richards, Plaintiffs, v. CITY UNIVERSITY OF NEW YORK and Louis Mader as an Aider and Abettor, in his official and individual capacity, Defendants.
For Plaintiffs: Joshua Bernstein Esq., 175 Varick Street, New York, NY 10014 For Defendants: Jonathan A. Siegel, Assistant Attorney General, 28 Liberty Street, New York, NY 10271
For Plaintiffs: Joshua Bernstein Esq., 175 Varick Street, New York, NY 10014
For Defendants: Jonathan A. Siegel, Assistant Attorney General, 28 Liberty Street, New York, NY 10271
Lucy Billings, J.
Plaintiffs include two female officers in the Hunter College Department of Public Safety who sue under the New York City Human Rights Law (NYCHRL) and New York State Human Rights Law (NYSHRL) claiming their employer, the City University of New York (CUNY), and its Director of Public Safety at Hunter College, Louis Mader, discriminated against plaintiffs by not promoting them based on their gender. Instead, he promoted or hired less experienced and less qualified men. Plaintiffs also claim defendants retaliated against plaintiffs for complaining about this gender discrimination.
I. BACKGROUND
Plaintiffs commenced this action in 2014 claiming discrimination based on their race, national origin, gender, marital status, and disability as well as retaliation under the NYCHRL and NYSHRL. Plaintiffs Miller and Jackson both alleged that defendants discriminated against plaintiffs based on their gender by promoting less experienced and less qualified men to leadership positions instead of plaintiffs. Miller also alleged that defendants discriminated against her based on her gender and status as a single mother by denying her request to work the day shift, while granting requests by male officers with lower rank and less seniority to transfer to the day shift, and that defendants retaliated against her for complaining about their unfair treatment of her. Jackson also claimed that defendants retaliated against her for her similar complaints, specifically by recommending disciplinary charges against her and later failing to promote her to sergeant despite her qualifications, and that Mader aided and abetted this discrimination and retaliation.
Plaintiffs now move to amend their complaint to remove Desmond Richards as a plaintiff and eliminate all his claims; eliminate plaintiffs' discrimination claims based on race, national origin, marital status, and disability; eliminate their aiding and abetting claim against Louis Mader; and claim only gender discrimination and retaliation under the NYCHRL and NYSHRL. Plaintiffs also seek to add allegations regarding nine promotions for which plaintiffs applied, but were not selected, in support of their gender discrimination claims.
Defendants do not oppose plaintiffs' motion insofar as it seeks to discontinue Richards's claims or any other claims, but otherwise oppose plaintiffs' motion because the claims in their proposed amended complaint lack merit and are barred by the applicable statutes of limitations. In claiming that the proposed amended complaint lacks merit, defendants rely on documentary evidence as well as plaintiffs' failure to state a claim and, insofar as plaintiff's motion may be denied, cross-move to dismiss both the original and the amended complaint on these grounds. C.P.L.R. § 3211(a)(1) and (7). Contrary to plaintiffs' contention, defendants may cross-move for any relief, as long as it is against the moving parties, here plaintiffs. C.P.L.R. § 2215(b) ; Kershaw v. Hospital for Special Surgery , 114 AD3d 75, 87 (1st Dep't 2013).
Given defendants' response to plaintiffs' motion, on May 16, 2019, the parties stipulated that plaintiffs claim only gender discrimination and retaliation under the NYCHRL and NYSHRL and discontinue all other claims, including plaintiffs' aiding and abetting claim against Mader. Plaintiffs further agreed to eliminate their proposed allegations that defendants discriminated against plaintiffs when they failed to promote Jackson to corporal in 2011, specialist I in 2011, specialist II in 2013, and sergeant in 2015 and Miller to assistant director in 2014, as barred by the applicable statute of limitations.
II. PLAINTIFFS' PROPOSED AMENDED COMPLAINT
Plaintiffs' amended complaint alleges that Mader openly announced he would not promote women to leadership positions in the Department of Public Safety, and his successors have continued to implement this policy. Plaintiffs allege that the composition of the Department's leadership positions reflects this policy. Men hold all eight positions in the Department's hierarchy: the director, the deputy director, two assistant directors, and four specialists. No woman has held any one of these higher titles since 2007. Plaintiffs also allege that only four women hold the rank of sergeant, the title below assistant director, and defendants have promoted eight men and only three women to sergeant in the past 11 years. Looking at all positions in the Department in the past 11 years, plaintiffs allege that defendants have promoted 21 men and only five women.
Plaintiffs each seek to add specific instances of discrimination in defendants' hiring practices. Miller alleges that she was passed over in favor of less qualified male applicants when she applied for positions of assistant director in 2012, specialist I in 2012, and specialist I in 2016. Miller also alleges that defendants discriminated against her in 2013 when they assigned her to a night shift despite her objection and transferred male officers with lower rank to the day shift. Jackson alleges that defendants discriminated against her when she applied for specialist I in 2012, sergeant in 2014, and laborer in 2017.
Plaintiffs also seek to add allegations regarding defendants' retaliation against plaintiffs. Miller alleges that she complained to her union, the International Brotherhood of Teamsters Local 237, in July 2011 about defendants' unfair treatment of officers based on their gender and that defendants then denied her a transfer to the day shift while they granted similar transfers to male officers with lower rank and less seniority. After Miller and her union representative met with Mader, defendants transferred her to a day shift, but then transferred her back to the night shift in January 2013 to allow a lower ranked and less senior male officer to transfer to the day shift.
Jackson claims that defendants retaliated against her after she filed charges of gender discrimination with the United States Equal Employment Opportunity Commission (EEOC) in March 2013. Jackson alleges that in April 2013 defendants instituted baseless disciplinary charges against her and, even after she was cleared of all charges, recommended training and probation for her. Jackson also alleges that, in retaliation for her complaint to the EEOC, Mader's deputy, Richard Meier, sabotaged her interview for a promotion in July 2013 when he recused himself from the interview in front of the other interviewers. Jackson maintains that Meier's recusal signaled his disapproval of Jackson, leading to defendants' hiring of two men with less experience and qualifications than Jackson.
III. PLAINTIFF'S MOTION
Leave to amend pleadings is to be freely granted unless it would surprise or otherwise prejudice the opposing parties. C.P.L.R. § 3025(b) ; Davis v. South Nassau Communities Hosp. , 26 NY3d 563, 580 (2015) ; Kimso Apts., LLC v. Gandhi , 24 NY3d 403, 411 (2014) ; Global Liberty Ins. Co. v. Tyrell , 172 AD3d 499, 500 (1st Dep't 2019) ; Y.A. v. Conair Corp. , 154 AD3d 611, 612 (1st Dep't 2017). The court nevertheless must deny proposed amendments that lack merit. Davis v. South Nassau Communities Hosp. , 26 NY3d at 580 ; Thomas Crimmins Contr. Co. v. City of New York , 74 NY2d 166, 170 (1989) ; Reyes v. BSP Realty Corp. , 171 AD3d 504, 504 (1st Dep't 2019) ; Y.A. v. Conair Corp. , 154 AD3d at 612.
A. Surprise or Prejudice
Defendants maintain that plaintiffs' delay in amending the complaint has prejudiced them because they may not be able to locate necessary witnesses or other evidence, but defendants fail to specify any witness who is difficult locate or any instance of stale evidence. Defendants must demonstrate actual prejudice to warrant the denial of permission to amend the complaint; their speculation as to potential prejudice is insufficient. Eshaghian v. Eshaghian , 170 AD3d 416, 416 (1st Dep't 2019) ; Flowers v. 73rd Townhouse LLC , 149 AD3d 420, 421 (1st Dep't 2017) ; Spitzer v. Schussel , 48 AD3d 233, 234 (1st Dep't 2008). The only new allegations plaintiffs seek to add stem from conduct in 2016 and 2017, mitigating any concerns of defendants about stale evidence. Plaintiffs' other amendments either restate or extrapolate on allegations in the original complaint, of which defendants received notice over four years ago, giving them ample time to investigate and gather evidence relating to these claims soon after they allegedly occurred. Finally, plaintiffs' original attorney's overall neglect and failure to prosecute the action, which led to disciplinary charges and his eventual resignation from the practice of law, and plaintiffs' new attorney's efforts to restore the action from default are reasonable excuses for plaintiffs' delay in amending the complaint. Jacobson v. McNeil Consumer & Specialty Pharm. , 68 AD3d 652, 655 (1st Dep't 2009).
B. The Statute of Limitations
Defendants also maintain that the applicable statutes of limitations bar plaintiffs' amended claims. A limitations period of three years applies to plaintiffs' claims under the NYCHRL and NYSHRL. C.P.L.R. § 214(2) ; NY Exec. Law § 297(9) ; N.Y.C. Admin. Code § 8-502(d) ; Mejia v. T.N. 888 Eighth Ave. LLC Co. , 169 AD3d 613, 614 (1st Dep't 2019) ; Santiago-Mendez v. City of New York , 136 AD3d 428, 428 (1st Dep't 2016). Plaintiffs' claims in the proposed amended complaint will be treated as interposed at the time of the original pleading as long as the original pleading gave notice of the transactions or occurrences underlying the new claims, and defendants will not be unduly prejudiced by the amendments. C.P.L.R. § 203(f) ); U.S. Bank N.A. v. DLJ Mtge. Capital, Inc. , 33 NY3d 84, 90 (2019) ; Buran v. Coupal , 87 NY2d 173, 178 (1995) ; Ramirez v. Elias-Tejada , 168 AD3d 401, 402 (1st Dep't 2019) ; O'Halloran v. Metropolitan Transp. Auth. , 154 AD3d 83, 86 (1st Dep't 2017).
Plaintiffs filed their original complaint September 11, 2014, alleging defendants' failure to promote Miller to assistant director in 2012 and to specialist I in 2012 and defendants' transfer of Miller to the night shift in 2013. Aff. of Joshua Bernstein Ex. 1 ¶¶ 17-48. The amended complaint's allegations regarding these claims of failure to promote and retaliation thus relate back to the original complaint's filing date and are within the limitations period. Although the original complaint did not allege defendants' failure to promote Miller to specialist I in 2016, this claim is still within the limitations period.
The original complaint also alleged defendants' failure to promote Jackson to specialist I in 2012 and to sergeant in 2014 and retaliation against Jackson in 2013. Bernstein Aff. Ex. 1 ¶¶ 53-69, 79-90. The amended complaint's allegations regarding these claims of failure to promote and retaliation thus also relate back to the original complaint's filing date and are within the limitations period. Buran v. Coupal , 87 NY2d at 178 ; Ramirez v. Elias-Tejada , 168 AD3d at 402 ; O'Halloran v. Metropolitan Transp. Auth. , 154 AD3d at 86. The original complaint did not allege defendants' failure to promote Jackson to laborer in 2017, but this claim also is still within the limitations period.
Nor did the original complaint allege any facts regarding the sergeant position in 2013, Jackson's application for that position, or defendants' failure to promote Jackson to that position. Therefore plaintiffs' claim regarding this position does not relate back to the original complaint's filing date and is barred by the statutes of limitations. Bossung v. Rebaco Realty Holding Co., N.V. , 169 AD3d 538, 538 (1st Dep't 2019) ; Torati v. Hodak , 147 AD3d 502, 503 (1st Dep't 2017). See U.S. Bank N.A. v. DLJ Mtge. Capital, Inc. , 33 NY3d at 90 ; Buran v. Coupal , 87 NY2d at 178.
Defendants' conduct before the limitations period, however, may be relevant regarding their reasons or motive in refusing to promote plaintiffs. Jeudy v. City of New York , 142 AD3d 821, 823 (1st Dep't 2016) ; Kent v. Papert Cos. , 309 AD2d 234, 241 (1st Dep't 2003) ; Chefalas v. Taylor Clark Architects , 283 AD2d 174, 175 (1st Dep't 2001) ; Sogg v. American Airlines, Inc. , 193 AD2d 153, 157, 161 (1st Dep't 1993). See National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113 (2002) ; Brennan v. Metropolitan Opera Assn. , 284 AD2d 66, 67, 70 (1st Dep't 2001) ; Garett v. Urban Outfitters, Inc. , 921 F.3d 30, 42 (2d Cir. 2019). The statute of limitations does not limit the admissibility of this evidence relevant to defendants' treatment of plaintiffs and the parties' interactions during plaintiffs' employment, to show defendants' discrimination or retaliation against plaintiffs within the limitations period. Jeudy v. City of New York , 142 AD3d at 823 ; Kent v. Papert Cos. , 309 AD2d at 241 ; Sogg v. American Airlines, Inc. , 193 AD2d at 157.
In particular, if defendants present evidence that they refused to promote plaintiffs for legitimate, non-discriminatory reasons, then plaintiffs may present evidence regarding defendants' treatment of plaintiffs any time during their employment to show that the justification defendants offer is a pretext to conceal a discriminatory motive. Kent v. Papert Cos. , 309 AD2d at 241 ; Chefalas v. Taylor Clark Architects , 283 AD2d at 175 ; Sogg v. American Airlines. Inc. , 193 AD2d at 157, 161. The statute of limitations does not provide defendants a defense because defendants' discriminatory motive for their subsequent adverse action was revealed before the limitations period. Kent v. Papert Cos. , 309 AD2d at 241. Plaintiffs' showing, for example, that, leading up to the limitations period, defendants' rejection of plaintiffs for an available position, reaction to plaintiffs' complaints, or other treatment of plaintiffs was discriminatory, would raise an inference that defendants' subsequent rejections of plaintiffs "was motivated ... by the same discriminatory reasons." Sogg v. American Airlines, Inc. , 193 AD2d at 161. In sum, the statutes of limitations do not bar plaintiffs' evidence, but bar only a remedy, regarding defendants' actions before the limitations period.
C. The Merits of Plaintiffs' Amended Claims
Defendants further maintain that plaintiffs' claims under the NYCHRL, N.Y.C. Admin. Code § 8-107(a)(1) and (7), lack merit because they are barred by sovereign immunity, since CUNY colleges, like Hunter College, are instrumentalities of the State of New York, which has not waived its sovereign immunity for claims under the NYCHRL. Plaintiffs do not dispute that Hunter College is part of CUNY, which is an instrumentality of New York State, or that Mader's alleged conduct was in his official capacity within CUNY. Apollon v. Giuliani , 246 AD2d 130, 135 (1st Dep't 1998) ; Jattan v. Queens Coll. of City Univ. of New York , 64 AD3d 540, 542 (2d Dep't 2009). Although the New York State Legislature waived sovereign immunity when enacting the NYSHRL, the Legislature has never waived the State's sovereign immunity from claims under the NYCHRL, and the New York City Council is not empowered to waive the sovereign immunity of the State or its instrumentalities. Jattan v. Queens Coll. of City Univ. of New York , 64 AD3d 540, 542 (2d Dep't 2009). See Feingold v. New York , 366 F.3d 138, 149 (2d Cir. 2004). Because plaintiffs' claims under the NYCHRL against CUNY and Mader lack merit on this basis, the court denies plaintiffs' motion to amend their complaint to add claims under the NYCHRL.
Regarding plaintiffs' claims under the NYSHRL, in opposing plaintiffs' motion to amend these claims, defendants further maintain that these amended claims lack merit because they fail to allege facts showing different treatment under circumstances that raise an inference of discrimination. Plaintiffs' allegations regarding defendants' failure to promote them to leadership positions, along with their allegations regarding Mader's open announcement that he would never promote a woman to a leadership position, however, raise the inference that Mader and the Department refused to promote plaintiffs because they were women and not based on their professional merits. Plaintiffs' allegations that defendants hired less experienced and less qualified men to fill all or most of these positions alone support the inference that Mader's and the Department's decisions were motivated by a discriminatory intent to keep women out of leadership positions. Harrington v. City of New York , 157 AD3d 582, 584-85 (1st Dep't 2018) ; Sogg v. American Airlines, Inc. , 193 AD2d at 156-57.
Finally, Mader's statement and systematic discrimination against female applicants also support plaintiffs' claims that defendants retaliated against plaintiffs for complaining about this gender discrimination. Jeudy v. City of New York , 142 AD3d at 823. Plaintiffs thus have shown the merit of their proposed claims under the NYSHRL. NY Exec. Law § 296(1)(a) and (e) and (7).
In sum, plaintiffs' only proposed claims that plainly lack merit are (1) the claim that defendants failed to promote Jackson to sergeant in 2013, which is barred by the statutes of limitations, and (2) the claims under the NYCHRL. Since defendants have not shown that plaintiffs' new claims will cause surprise or other prejudice, and their other new claims are not devoid merit, plaintiffs are entitled to amend their complaint add those other new claims. Global Liberty Ins. Co. v. Tyrell , 172 AD3d at 500 ; Gottwald v. Sebert , 172 AD3d 445, 446 (1st Dep't 2019) ; Eshaghian v. Eshaghian , 170 AD3d 416, 416 (1st Dep't 2019).
IV. DEFENDANTS' CROSS-MOTION TO DISMISS THE AMENDED COMPLAINT BASED ON THE FAILURE TO STATE A CLAIM
Although in opposing plaintiffs' motion defendants maintain that plaintiffs' amended claims lack merit because they fail to allege the requisite facts, defendants also cross-move to dismiss the entire amended complaint, which repeats much of the original complaint as well as adding new allegations, because the amended complaint fails to allege the requisite facts to sustain any of its claims. C.P.L.R. § 3211(a)(7). In evaluating the amended complaint upon a motion to dismiss pursuant to C.P.L.R. § 3211(a)(7), the court must accept plaintiffs' allegations as true, liberally construe them, and draw all reasonable inferences in their favor. JF Capital Advisors, LLC v. Lightstone Group, LLC , 25 NY3d 759, 764 (2015) ; Miglino v. Bally Total Fitness of Greater NY, Inc. , 20 NY3d 342, 351 (2013) ; ABN AMRO Bank, N.V. v. MBIA Inc. , 17 NY3d 208, 227 (2011) ; Drug Policy Alliance v. New York City Tax Comm'n , 131 AD3d 815, 816 (1st Dep't 2015). Dismissal is warranted only if the complaint fails to allege facts that fit within any cognizable legal theory. ABN AMRO Bank, N.V. v. MBIA Inc. , 17 NY3d at 227 ; Lawrence v. Graubard Miller , 11 NY3d 588, 595 (2008) ; Nonnon v. City of New York , 9 NY3d 825, 827 (2007) ; Mill Financial, LLC v. Gillett , 122 AD3d 98, 103 (1st Dep't 2014). Insofar as this evaluation may impose a higher standard of pleading on plaintiffs than their motion to amend their complaint, they still sustain both the new claims that the court has allowed and the remainder of their amended complaint, exclusive of the claims that the court has disallowed.
As set forth above, plaintiffs may not claim under the NYCHRL against CUNY because CUNY and Mader acting in his official capacity are instrumentalities of the State, which has not waived its sovereign immunity for claims under the NYCHRL. Jattan v. Queens Coll. of City Univ. of New York , 64 AD3d at 542. Therefore the court grants defendants' cross-motion to dismiss plaintiffs' claims under the NYCHRL that were included in their original complaint.
To sustain a claim for gender discrimination under the NYSHRL, plaintiffs must allege that they were treated less favorably than other employees because of their gender. Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP , 120 AD3d 18, 26 (1st Dep't 2014) ; Hernandez v. Kaisman , 103 AD3d 106, 112 (1st Dep't 2012) ; Green v. Continuum Health Partners, Inc. , 88 AD3d 487, 487 (1st Dep't 2011) ; Williams v. New York City Hous. Auth. , 61 AD3d 62, 78-79 (1st Dep't 2009). Defendants again maintain that plaintiffs fail to state a claim for gender discrimination because they fail to allege facts raising an inference of discrimination.
Miller specifically states a claim for gender discrimination by alleging that she was treated less favorably than other male employees based on her gender when defendants promoted less experienced and less qualified men instead of her to assistant director in 2012, specialist I in 2012, and specialist I in 2016. Miller similarly states a claim for gender discrimination by alleging that, even though she previously had advised defendants that working nights was a hardship for her, defendants assigned her to the night shift in 2013 to accommodate less senior male officers of a lower rank who wanted the day shift.
Jackson specifically states a claim for gender discrimination by alleging that defendants treated her less favorably than other male employees based on her gender when defendants selected men with less experience and qualifications instead of her for the specialist I position in 2012, sergeant position in 2014, and laborer position in 2017. Insofar as any of these positions was outside the Department of Public Safety or even outside Hunter College, but still within CUNY, the rejection of Jackson for the position may not implicate defendant Mader, but still implicates defendant CUNY. Again, the allegations that defendants gave preference to lower ranked, less experienced, and less qualified men for all or most of the positions in question raise an inference of discrimination. Harrington v. City of New York , 157 AD3d at 584-85 ; Jeudy v. City of New York , 142 AD3d at 823 ; Sogg v. American Airlines, Inc. , 193 AD2d at 156-57.
Plaintiffs acknowledge that Mader did not singlehandedly make hiring decisions, but only influenced them, and do not rely solely on his conduct to support their discriminatory treatment. Nevertheless, plaintiffs' allegation that Mader openly announced he would never promote a woman to a leadership position in the Department of Public Safety further pleads defendants' discriminatory animus underlying their discriminatory treatment of plaintiffs. Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP , 120 AD3d at 26 ; Hernandez v. Kaisman , 103 AD3d at 112 ; Green v. Continuum Health Partners, Inc. , 88 AD3d at 487 ; Williams v. New York City Hous. Auth. , 61 AD3d at 78-79. Defendants insist that plaintiffs' failure to connect Mader's remark to any one hiring decision negates the remark's relevance, but the remark by its very words is connected directly to hiring, and its whole import is that it relates to all hiring for leadership positions.
To state a claim for retaliation under the NYSHRL, plaintiffs must allege that they participated in a protected activity, that defendants knew of this activity, that defendants acted adversely against plaintiffs, and a causal connection between the protected activity and adverse action. Forrest v. Jewish Guild for the Blind , 3 NY3d at 313 ; Cadet-Legros v. New York Univ. Hosp. Ctr. , 135 AD3d 196, 205-206 (1st Dep't 2015) ; Asabor v. Archdiocese of NY , 102 AD3d 524, 528 (1st Dep't 2013) ; Fletcher v. Dakota, Inc. , 99 AD3d 43, 51 (1st Dep't 2012). See Cole v. Sears, Roebuck & Co. , 120 AD3d 1159, 1160 (1st Dep't 2014) ; Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP , 120 AD3d 18, 25 (1st Dep't 2014). Miller states a claim for retaliation by alleging that defendants placed her on the night shift in January 2013 in retaliation for her complaint to her union regarding defendants' gender discrimination, as detailed above. Jackson states a claim for retaliation by alleging that defendants filed baseless disciplinary charges against her in retaliation for her having filed charges of discrimination with the EEOC, as also detailed above.
V. DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT BASED ON DOCUMENTARY EVIDENCE
To dismiss the complaint pursuant to C.P.L.R. § 3211(a)(1), defendants must present admissible documentary evidence that utterly refutes or completely negates plaintiffs' allegations so as to eliminate all material disputes regarding those facts. Goshen v. Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 (2002) ; 511 W. 232nd Owners Corp. v. Jennifer Realty Co. , 98 NY2d 144, 152 (2002) ; Calpo-Rivera v. Siroka , 144 AD3d 568, 568 (1st Dep't 2016) ; Kolchins v. Evolution Mkts., Inc. , 128 AD3d 47, 58 (1st Dep't 2015). The documentary evidence must plainly and flatly contradict the complaint's claims. Maas v. Cornell Univ. , 94 NY2d 87, 91 (1999) ; Xi Mei Jia v. Intelli-Tec Sec. Servs., Inc. , 114 AD3d 607, 608 (1st Dep't 2014) ; Cathy Daniels, Ltd. v. Weingast , 91 AD3d 431, 433 (1st Dep't 2012) ; KSW Mech. Servs., Inc. v. Willis of NY, Inc. , 63 AD3d 411, 411 (1st Dep't 2009). See Lopez v. Fenn , 90 AD3d 569, 572 (1st Dep't 2011).
To support the cross-motion, defendants rely exensively on factual affidavits by Mader and another Department of Public Safety employee, which the court may not consider as the type of documentary evidence to support a motion under C.P.L.R. § 3211(a)(1). Serao v. Bench-Serao , 149 AD3d 645, 646 (1st Dep't 2017) ; Calpo-Rivera v. Siroka , 144 AD3d at 568 ; Asmar v. 20th & Seventh Assoc., LLC , 125 AD3d 563, 564 (1st Dep't 2015) ; City of New York v. VJHC Dev. Corp. , 125 AD3d 425, 426 (1st Dep't 2015). Therefore, insofar as the affidavits allege that plaintiffs were not hired for positions because defendants cancelled the hiring process for those positions or present documents showing the cancellation without authenticating them or laying a foundation for their admissibility, the court disregards defendants' evidence extrinsic to the amended complaint. Plaintiffs, moreover, allege that, while the hiring for a position may have been delayed a few months, defendants eventually did fill it.
One of defendants' affidavits, however, does authenticate and lay a business record foundation for the job vacancy notice for an assistant director position in the Department of Public Safety posted in 2012, which instructed applicants to apply through "CUNY First," an electronic system. Aff. of Manreet Bhatti, Ex. 4, at 2. Defendants maintain that Miller's admitted failure to apply through this system explains defendants' failure to promote Miller to assistant director in 2012, negates their discriminatory animus, and thus defeats her claim for discrimination regarding their failure to promote her to this position in 2012.
Plaintiffs allege, however, that, when Miller applied for this position in 2012, the "CUNY First" system was not fully operating and was not the exclusive means of applying for positions. To support this contention, plaintiffs point out that Miller did not use "CUNY First" to apply for a specialist I position a week before applying for the assistant director position, yet received an interview for the specialist I position. Plaintiffs allege that defendants' systematic failure to promote plaintiffs to leadership positions because of their gender, not Miller's failure to apply through "CUNY First," was the reason she was not interviewed for the assistant director position. A reasonable inference from these allegations is that Mader used Miller's failure to apply through "CUNY First" as a pretext to deny her the position based on her gender. Because this inference of a pretext provides Miller a basis on which to succeed on her claim regarding the 2012 assistant director position despite defendants' evidence that she was required to apply through "CUNY First," defendants' documentary evidence does not totally negate this claim. Goshen v. Mutual Life Ins. Co. of NY , 98 NY2d at 326 ; 511 W. 232nd Owners Corp. v. Jennifer Realty Co. , 98 NY2d at 152 ; Calpo-Rivera v. Siroka , 144 AD3d at 568 ; Kolchins v. Evolution Mkts., Inc. , 128 AD3d at 58.
VI. CONCLUSION
For the reasons explained above, the court grants plaintiffs' motion to amend their complaint to add their claims under the NYSHRL for defendants' retaliation against Miller and Jackson in 2013 and for gender discrimination as follows. The court permits plaintiffs' claims for gender discrimination based on defendants' failure to promote Miller to assistant director in 2012, specialist I in 2012, and specialist I in 2016; assignment of her to the night shift in 2013; and failure to promote Jackson to specialist I in 2012, sergeant in 2014, and laborer in 2017. C.P.L.R. § 3025(b). The court denies plaintiffs' motion to amend their complaint to add any other claims, including their claims under the NYCHRL.
The court grants defendants' cross-motion to dismiss the original and amended complaints insofar as they allege claims under the NYCHRL, but otherwise denies the cross-motion. C.P.L.R. § 3211(a)(1) and (7). Plaintiffs shall file an amended complaint within 10 days after entry of this order, C.P.L.R. § 3211(d), which defendants shall answer within 20 days afterward. C.P.L.R. § 3012(b).