Opinion
23 Civ. 0499 (NSR)
07-15-2024
DAVID SANCHEZ, Plaintiff, v. COUNTY OF WESTCHESTER, THOMAS GLEASON, JAMES LUCIANO, CHRISTOPHER CALABRESE, Defendants.
OPINION & ORDER
NELSON S. ROMAN, United States District Judge
On January 20, 2023, Plaintiff David Sanchez (“Plaintiff”) commenced the instant action against Defendants County of Westchester (“the County”), Thomas Gleason (“Gleason”), James Luciano (“Luciano”), and Christopher Calabrese (“Calabrese”) (Gleason, Luciano, and Calabrese together, the “Individual Defendants”). Plaintiff asserts claims for discrimination based on his race and national origin under the Fourteenth Amendment, 42 U.S.C. Section 1983 (“Section 1983”), and Title VII of the Civil Rights Act of 1964 (“Title VII”).
Before the Court is Defendants' motion to dismiss Plaintiff's First Amended Complaint. For the following reasons, the Court denies in part and grants in part Defendants' motion.
BACKGROUND
I. Factual Allegations
The following facts are drawn from Plaintiff's First Amended Complaint (“FAC”), and are taken as true for the purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff is a Hispanic man who worked for the County's Public Safety Department (the “Department”) as a patrol officer for eighteen years. (FAC ¶¶ 1, 8.) During the relevant period, Plaintiff was also a canine handler. (Id. ¶ 16.) During this time, Defendant Gleason, a white man, served as the Commissioner of the Department of Public Safety and Defendants Luciano and Calabrese, also white men, both served as Chief Inspector in the Department of Public Safety. (Id. ¶¶ 3-5)
A. Retiring of Police Canine
In February of 2022, an incident transpired between the parties during which Defendants ordered the retirement of Plaintiff's police canine. (Id. ¶¶ 16.) Given that the canine was relatively young and capable, Plaintiff questioned the decision and Commissioner Gleason promised Plaintiff he would be allowed to keep the dog. (Id. ¶¶ 17.) Despite this fact, within weeks of Gleason's promise Luciano ordered the retirement of Plaintiff's narcotics canine. (Id. ¶ 18.) Plaintiff complained again, but Gleason refused to intercede in Luciano's decision. (Id. ¶ 19.) At the same time, another officer, Officer Goggin-a less experienced white canine handler-was allowed to keep his canine. (Id. ¶ 20.) When Plaintiff once again questioned the decision, Luciano presented what Plaintiff alleges to be pretextual and baseless reasons. (Id. ¶ 21.) These reasons included that Plaintiff was selling his home, indicating that he was preparing to move away and leave his job with the Department. (Id.) Luciano further stated that the legalization of marijuana reduced the need for canine dogs, the Department had too many dogs, and that Plaintiff had other primary duties. (Id.) In response, Plaintiff explained that he was not planning on moving. (Id. ¶¶ 2.) Plaintiff also questioned why other officers, who were out of work for 2 years and/or had less expertise and seniority than Plaintiff, were allowed to keep their canines (Id.) Despite this, Plaintiff's narcotics canine was retired. (Id. ¶¶ 23.)
Plaintiff alleges that retiring his dog has caused him pure economic loss since a canine handler earns a higher salary and higher overtime rate. (Id.) This demotion also caused Plaintiff to lose other pecuniary benefits he received to care for the dog. (Id.) Further, the decision to retire his canine caused him emotional distress. (Id. ¶¶ 32.)
B. Failure to Promote
During the last five years, Plaintiff alleges that the County has underemployed racial/ethnic minorities in supervisory ranks, including the rank of detective. (Id. ¶ 12.) As of December 4, 2022, only four of the sixty-eight officers serving in supervisory ranks are either African American or Hispanic. (Id. ¶ 13.) This is less than the representation of African Americans and Hispanics in the labor pool for these positions. (Id. ¶ 14.) It is under this context that the following incident allegedly occurred.
Three months following the canine incident, which Plaintiff alleges was an intentionally discriminatory decision and disparate treatment, Defendants promoted three white officers- Roselli, Hagan and Goggin-to the role of detective. (Id. ¶ 24.) Plaintiff claims these officers were much less qualified and experienced than him for the position. (Id.) On multiple occasions Plaintiff had alerted Defendants that he was interested in a promotion. (Id. ¶¶ 11, 25.) On these occasions, Plaintiff was informed that promotion to detective would require him to surrender his canine. (Id. ¶ 26.) However, following a promotion, Detective Goggin was allowed to keep his canine. (Id.) At the same time, multiple other white detectives were allowed to keep job-related canines; Plaintiff alleges the initial claim was false. (Id. ¶ 27.)
After being denied a promotion, Plaintiff and other Hispanic officers asked Gleason for data regarding the how many Hispanic officers were in leadership positions within the department. (Id. ¶ 28.) Gleason refused to give the data and resigned soon thereafter. (Id. ¶ 29.)
In December 2022, the County promoted Plaintiff to detective. (Id. ¶¶ 30.) During the promotion ceremony Defendant Calabrese-who once opposed Plaintiff's promotion-rubbed plaintiffs silver police officer shield stating that it looked good on him. (Id. ¶¶ 31.)
Plaintiff additionally alleges that he has suffered emotional distress, humiliation, and pecuniary loss from the refusal to promote him in May 2022. (Id. ¶¶ 33.)
II. Procedural History
On January 9, 2023, Plaintiff filed a Complaint with the Equal Employment Opportunity Commission (“EEOC”). (ECF No. 40-2.) On January 20, 2023, Plaintiff filed his Complaint before this Court. (ECF No. 1.) On March 16, 2023, the EEOC issued a Notice of Charge. (ECF No. 403.) On April 14, 2023, Plaintiff sought leave to amend his complaint to add claims arising under Title VII in anticipation of the EEOC issuing a right to sue letter, which the Court granted. (ECF Nos. 22, 26.) On April 17, 2023, the EEOC issued a Right to Sue Letter. (FAC ¶ 7.)
On July 29, 2023, Plaintiff filed his First Amended Complaint. (ECF No. 33.) On October 23, 2023, with leave of the Court, the parties filed their respective papers on Defendants' motion to dismiss the First Amended Complaint: Defendants filed their motion to dismiss (ECF No. 36), Declaration of Irma Cosgriff in Support (ECF No. 37), Memorandum of Law in Support (ECF No. 38, “Defs. Mem.”) and Reply (ECF No. 39, “Reply”); and Plaintiff filed his opposition (ECF No 40, “Pl. Opp.”).
LEGAL STANDARD
To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Factual allegations must “nudge [a plaintiff's] claim from conceivable to plausible.” Twombly, 550 U.S. at 570. A claim is plausible when the plaintiff pleads facts which allow the court to draw a reasonable inference the defendant is liable for the unlawful activity alleged. Iqbal, 556 U.S. at 678. “In considering a motion to dismiss for failure to state a claim, the district court is normally required to look only to the allegations on the face of the complaint . . . the court may [also] consider documents that are attached to the complaint, incorporated in it by reference, [or] integral to the complaint.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (quotation marks omitted).
In assessing the sufficiency of the claims, the court is “not required to credit conclusory allegations or legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013). While legal conclusions may provide the “framework of a complaint,” “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678-79. “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678.
DISCUSSION
As against the County, Plaintiff asserts claims for violation of Title VII. (FAC ¶¶ 38-39.) As against each of the Individual Defendants, Plaintiff asserts claims for violation of the Equal Protection Clause of the Fourteenth Amendment under Section 1983. (FAC ¶¶ 34-37.) Defendants seek to dismiss Plaintiff's claim against the County on the grounds that Plaintiff fails to plausibly state a claim for disparate treatment based on national origin under Title VII. Defendants seek to dismiss Plaintiff's Section 1983 claims against the Individual Defendants for failure to plead personal involvement.
For the following reasons, the Court denies in part and grants in part Defendants' motion to dismiss Plaintiff's FAC.
I. Title VII Claim Against the County
Plaintiff claims that the County violated Title VII by asserting that the failure to promote him and his demotion from the position of dog handler was motivated by discrimination based on his race and national origin. (See Pl. Opp. at 14.) Defendants argue the Court should dismiss Plaintiff's Title VII claim because Plaintiff (1) fails to show the County treated him less favorably than similarly situated employees outside his protected class and (2) fails to plausibly allege the County discriminated against him based on his race or national origin. (Defs. Mem. at 9-12.)
A. Legal Standard
Title VII makes it unlawful for an employer to “discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3. At the pleading stage, “in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). “[A] Plaintiff need only give plausible support to a minimal inference of discriminatory motivation.” O'Toole v. Cnty. of Orange, 255 F.Supp.3d 433, 438 (S.D.N.Y. 2017) (citing Vega, 801 F.3d at 84) (emphasis in original). That said, a plaintiff asserting a claim for discrimination under Title VII “must still at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed.” Id. (citing EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014)) (cleaned up).
In order to sufficiently plead a discrimination claim due to a failure to promote, Plaintiff must show that he “(1) is a member of the protected class; (2) was qualified; (3) suffered an adverse employment action; and (4) has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Buon v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (citing Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). With regard to the fourth prong of this test, the Second Circuit has held that an inference of discrimination may be drawn either from (1) direct evidence of discriminatory intent, or (2) a showing by the Plaintiff that “[he] was subject to disparate treatment . . . [compared to persons] similarly situated . . . [to himself].” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (internal quotations and citations omitted).
Employment characteristics that can support the conclusion that two employees are “similarly situated” include “similarities in education, seniority, performance, and specific work duties” and “similar requirements for skill, effort and responsibility for jobs performed under similar working conditions.” Potash v. Fla. Union Free Sch. Dist., 972 F.Supp.2d 557, 580 (S.D.N.Y. 2013) (internal quotation marks and citations omitted); see also Edwards v. N.Y. State Office of Mental Health, No. 16 Civ. 1397 (BMC), 2017 WL 666227, at *5 (E.D.N.Y. Feb. 20, 2017) (holding the plaintiff's evidence that showed a coworker outside of his protected class was hired at the same time for the same job and worked under the same working conditions barely sufficed to raise an inference of discrimination for a Title VII claim).
B. Application
Here, Defendants do not challenge that (1) Plaintiff is a member of a protected class due to his national origin (Peruvian and Guatemalan); (2) Plaintiff repeatedly sought and was passed over for a promotion that remained open and ultimately went to three other white officers; and (3) retiring Plaintiff's narcotics dog was an adverse employment decision as this came with a pay cut. (See FAC ¶¶ 1, 11, 24.) Accordingly, solely at issue here is the fourth prong of the prima facie discrimination claim-whether the County possessed a discriminatory motive or intent in failing to promote him and removing his canine. The Court finds Plaintiff's factual allegations are sufficient to plausibly allege the County's failure to promote him and the removal of his canine was motivated by his race or national origin.
Plaintiff describes incidents where he was subjected to less favorable treatment that was different from employees who were outside his protected class. An inference of discrimination can arise from the favorable treatment of employees not in a plaintiff's protected group. Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir.2009); Buon, 65 F.4th at 84 (citing Stratton v. Dep't for the Aging for the City of N.Y., 132 F.3d 869, 879 n.6 (2d Cir. 1997)) (employer action demoting an employee for no logical reason is strong evidence of intent to discriminate). Plaintiff was told that if he was promoted to detective, he would have to give up his narcotics canine. (FAC ¶¶ 2627.) At the same time, white officers who were promoted to detective-including Officer Goggin-were allowed to keep their canines. (Id.) Furthermore, a white officer who had been out of service for two years was allowed to keep his canine while Plaintiff was asked to retire his canine who was young and capable. (Id. ¶¶ 22.) Plaintiff also alleges that Goggin-an officer who was allowed to keep his canine-was “a much less experienced canine officer.” (Id. ¶ 20.) Plaintiff had seniority and more expertise in this respect. (Id. ¶ 22.)
Additionally, Plaintiff alleges the three white officers who were promoted to the rank of detective had less experience and fewer qualifications than him. (Id. ¶ 24.) Plaintiff alleges that he had seniority over the officers who were not treated adversely and further that they worked in the same capacity and under the same supervision. (Id. ¶¶ 22, 26.) These facts are sufficient to establish Plaintiff, a Hispanic man, and the white officers were similarly situated, and yet the white officers were treated more favorably. Buon, 65 F.4th at 83.
Plaintiff alleges that only four of the sixty-eight officers serving in supervisory roles are Hispanic or African American. (FAC ¶ 13.) Furthermore, when Plaintiff and other Hispanic officers questioned the under-employment of Hispanic employees, it was only then that Plaintiff was promoted to detective. (Id. ¶¶ 28-30.) Although separate instances of disparate treatment may not on their own give rise to an inference of discrimination, Plaintiff may put pieces together to support an inference of intentional discrimination. Vega, 801 F.3d at 88 (plaintiffs' separate allegations of discrimination may together provide background evidence of intentional discrimination and bolster her claim by shedding light on defendants' motivation). Here, each individual instance that Plaintiff provides, when viewed in its entirety, support a plausible inference of discrimination. The Court therefore denies Defendants' motion to dismiss Plaintiff's Title VII claim against the County.
II. Section 1983 Claims Against the Individual Defendants
As against the Individual Defendants, Plaintiff claims that Luciano, Gleason, and Calabrese each engaged in disparate treatment and discrimination by (1) removing his canine and treating similarly situated white officers in a more favorable manner by letting them keep their canines; and (2) by promoting three other white officers who were less experienced and qualified than Plaintiff.
A. Legal Standard
For a person to state a claim under Section 1983, a plaintiff must allege “(1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution.” Castilla v. City of New York, No. 09 Civ. 5446, 2013 WL 1803896, at *2 (S.D.N.Y. April 25, 2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Therefore, a Section 1983 claim has two essential elements: (1) the defendant acted under color of state law, and (2) as a result of the defendant's actions, the plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or privileges. See Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Quinn v. Nassau Cnty. Police Dep't, 53 F.Supp.2d 347, 354 (E.D.N.Y. 1999) (noting that Section 1983 “furnishes a cause of action for the violation of federal rights created by the Constitution”) (citation omitted).
“To establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation.” Kravitz v. Purcell, 87 F.4th 111, 129 (2d Cir. 2023) (citing Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)). The Second Circuit requires a plaintiff to “plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). A plaintiff may establish personal involvement by 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.”Littlejohn, 795 F.3d at 314 (2d Cir. 2015). Finally, a plaintiff must also establish that “the supervisor's actions were the proximate cause of the plaintiff's constitutional violation” and “the supervisor's behavior constituted intentional discrimination on the basis of a protected characteristic.” Id. (citing Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014)).
B. Application
Here, Defendants argue Plaintiff fails to sufficiently allege the personal involvement of each Individual Defendant to plausibly state a claim. The Court addresses the liability of each Individual Defendant in turn.
1. Thomas Gleason
Here, Plaintiff sufficiently plead Gleason's personal involvement. Plaintiff's factual allegations establish Gleason's personal involvement in the decision to retire Plaintiff's narcotics canine because when Plaintiff first questioned the decision, Gleason promised he could keep the canine. (FAC ¶¶ 17.) When Plaintiff was informed a second time that his canine was going to be retired, he complained again to Gleason, who stated he could not interfere and allowed the retirement of Plaintiff's canine. (Id. at 19.) Plaintiff also sufficiently alleges that Gleason was personally involved in promoting three white officers over Plaintiff. (Id. ¶¶ 16, 19, 24.) Prior promoting the three white officers, Plaintiff made it known to Gleason that he was interested in the promotion. (Id. ¶¶ 25.) Defendant failed to promote him and instead promoted Goggin-a less experienced and qualified officer-while also allowing Goggin to keep his police canine. (Id. ¶¶ 24, 26.) Thus, Gleason was personally involved in the demotion of Plaintiff. See Tangreti, 983 F.3d at 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). The FAC further alleges that for the past eight years Gleason had a well-documented history of passing over qualified persons of color and promoting less-qualified white candidates. (FAC ¶ 15.) His actions spanning the last eight years are sufficient to qualify as a practice or custom under which unconstitutional practices occurred and thus prove personal involvement. Fleming v. Sharma, 605 F.Supp.2d 399, 407-408 (S.D.N.Y. 2009) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)) (explaining that a defendant is considered personally involved when they allow the continuance of a policy or custom under which unconstitutional practices occur).
While Gleason's individual involvement has been established, Plaintiff must still “establish that the supervisor's actions were the proximate cause of the plaintiff's constitutional deprivation,” and those actions constitute “intentional discrimination of the basis of a protected characteristic.” Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir.2015). It is well-established that an adverse employment action against a member of a protected class coupled with the favorable treatment of one who is not a member of a protected class may give rise to an inference of discrimination. Leibowitz, 584 F.3d at 502. As the Court discussed above, Plaintiff has asserted enough facts that Gleason treated him less favorably than other less qualified white officers by failing to promote him and demoting him from canine handler. See supra at Section I.B.
2. James Luciano
As with Gleason, Luciano was individually involved in the decision to demote Plaintiff because Luciano directly ordered the retirement of Plaintiff's narcotics canine. (Id. ¶ 18.) Furthermore, when Plaintiff questioned Luciano, he personally gave reasons for retiring Plaintiff's canine, therefore his individual involvement is satisfied. See Tangreti, 983 F.3d at 616 (quoting Iqbal, 556 U.S. at 676).
Luciano's individual actions also resulted in disparate treatment of Plaintiff as he was forced to retire his canine when other white officers with less expertise and less seniority were allowed to keep their dogs. Additionally, only Plaintiff was asked to retire his canine even though another white officer who had been out of work for almost two years was not asked to retire his active canine. Such favorable treatment of a member outside of Plaintiff's protected class plausibly gives rise to an inference of discrimination by Luciano. See Buon, 65 F.4th at 83.
3. Christopher Calabrese
With regard to Calabrese, however, Plaintiff fails to plead sufficient facts to establish Calabrese's personal involvement in the alleged discrimination. See Tangreti, 983 F.3d at 616 (quoting Iqbal, 556 U.S. at 676). The FAC is devoid of any factual allegations to show Calabrese's involvement in the retirement of Plaintiff's narcotics dog or the failure to promote him. Although Plaintiff alleges a custom or practice of passing over well-qualified persons of color and promoting less qualified white officers, Plaintiff does not allege that Calabrese was aware of or contributed to this custom. Plaintiff only alleges Calabrese was present at Plaintiff's promotion ceremony, during which Calabrese rubbed Plaintiff's silver police officer shield. Thus, Plaintiff's sole allegations of Calabrese's personal involvement in his alleged discrimination and disparate treatment is Calabrese's role as Chief Inspector in the Department of Public Safety. Courts have repeatedly found such allegations insufficient. Sanchez v. Nassau Cnty., 662 F.Supp.3d 369, 416 (E.D.N.Y. 2023) (“An individual defendant cannot be held liable for damages under Section 1983 merely because he held a high position of authority.”) (citing Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). Accordingly, Plaintiff's disparate treatment claim under Section 1983 fails as to Calabrese.
III. Leave to Amend
Leave to amend a complaint should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). “[I]t is within the sound discretion of the district court to grant or deny leave to amend.” Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (internal quotation marks omitted). “Leave to amend, though liberally granted, may properly be denied” for “‘repeated failure to cure deficiencies by amendments previously allowed'” or “‘futility of amendment,'” among other reasons. Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Given that this is the first pleading for which motion practice occurred, the Court grants Plaintiff leave to file a Second Amended Complaint.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendants' motion to dismiss. The Court DENIES Defendants' motion to dismiss Plaintiff's (1) Title VII claim against the County; (2) Section 1983 claim against Defendant Gleason; and (3) Section 1983 claim against Defendant Luciano. Defendants' motion to dismiss Plaintiff's Section 1983 claim against Calabrese is GRANTED. The Court dismisses Plaintiff's Section 1983 against Defendant Calabrese without prejudice.
Plaintiff is granted leave to file a Second Amended Complaint by August 9, 2024. Plaintiff is advised that the Second Amended Complaint will replace, not supplement, the First Amended Complaint, and so any claims that he wishes to pursue must be included in, or attached to, the Second Amended Complaint. Should Plaintiff file a Second Amended Complaint, Defendants are directed to answer or otherwise respond by August 30, 2024.
If Plaintiff fails to file a Second Amended Complaint within the time allowed, those claims that were dismissed without prejudice will be deemed dismissed with prejudice. Defendants are directed to file an answer to the First Amended Complaint by August 30, 2024.
The Clerk of Court is further directed to terminate the motion at ECF No. 36.
SO ORDERED.