Supreme Court, New York County, December 2, 2022

Sylvia O. Hinds-Radix, Corporation Counsel, New York City, for defendants.

Law Office of John A. Scola PLLC, New York City (John Andrew Scola of counsel), for plaintiff.

Defendants the City of New York, Sergeant James Fills and Sergeant Sasa Maric (collectively, defendants) move pursuant to CPLR 3211 (a) (7) to dismiss the complaint with prejudice for failure to state a claim. Plaintiff, Steeve Juillet, opposes and cross-moves pursuant to CPLR 3025 (b) for leave to file an amended complaint.

This instant motion arises from an action seeking relief for alleged civil rights violations and employment discrimination suffered by plaintiff, a Haitian-American man who has been employed by the New York City Police Department (NYPD) since January 2011. In 2016, after being stationed in Times Square, he alleges that individual defendants, Sergeant Maric and Sergeant Fills, discriminated against him based on his race and ethnicity. He alleges that the [*2]defendants improperly restricted his overtime, gave him negative performance reviews that impacted his ability to transfer to more lucrative specialized units, and denied him any promotion to detective.

Plaintiff also claims that his superior, Sergeant Fills, began spreading rumors that he was incapable of performing certain job functions and told plaintiff that he placed plaintiff "in the middle of the intersection so you (Plaintiff) get hit by a car." (See NY St Cts Elec Filing [NYSCEF] Doc No. 1, summons and complaint ¶¶ 31, 35.) Plaintiff alleges that his other supervisor, Sergeant Maric, would joke that plaintiff resembled homeless people. In addition, plaintiff claims that he was forced to stand outside for eight hours writing summonses and was screamed at by Sergeant Fills and told, in reference to plaintiff's race and ethnicity, that the NYPD did not want "these kind of people" on the job. (See id. ¶ 32.)

Plaintiff claims that because of his disparate treatment and assignments, he received negative evaluations compared to his white colleagues, despite performing on par or better. He alleges that the disparate treatment is not limited to plaintiff {**77 Misc 3d 1004}and that other minority officers also faced the same discrimination. On May 26, 2021, plaintiff was interviewed by the Internal Investigations Bureau of the NYPD following a suicide by an officer in plaintiff's command. During the interview, plaintiff made complaints about the discriminatory and retaliatory culture of the command. He alleges that as retaliation for his comments, plaintiff was sent to "Psych Services," where his mental fitness was evaluated by a psychiatrist. (See NYSCEF Doc No. 1, summons and complaint ¶ 118.)

Based on these allegations, plaintiff alleges that he was the victim of discrimination based on his race and ethnicity and subjected to retaliation for making complaints of discrimination, in violation of the New York State Human Rights Law (State HRL) (Executive Law § 296) and the New York City Human Rights Law (City HRL) (Administrative Code of City of NY § 8-107).

Defendants now move to dismiss the complaint as barred by the statute of limitations pursuant to CPLR 3211 (a) (5) and for failure to state a claim pursuant to CPLR 3211 (a) (7). Plaintiff cross-moves to amend his complaint to include additional instances of disparate treatment.

A. Statute of Limitations

Pursuant to CPLR 3211 (a) (5), the court may dismiss a cause of action as time-barred under the applicable statute of limitations. The initial burden is on the defendant to show that the claims are time-barred by the applicable statute of limitations. (See Jalayer v Stigliano, 94 AD3d 702, 703 [2d Dept 2012].) "The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether they actually commenced the action within the applicable limitations period." (Id.)

An action to recover damages for discriminatory practices under the State HRL and the City HRL is governed by a three-year statute of limitations. (See CPLR 214 [2]; Administrative Code § 8-502 [d]; Koerner v State of N.Y., Pilgrim Psychiatric Ctr., 62 NY2d 442, 446 [1984].) Defendants argue that, because plaintiff commenced this action on July 1, 2021, plaintiff's claims arising prior to July 1, 2018, are time-barred by the three-year statute of limitations. Plaintiff does not contest that the three-year statute of limitations applies here. Notably, plaintiff [*3]does not provide exact dates for most of his allegations {**77 Misc 3d 1005}and gives broad timeframes for some and no timeframes for others. The court notes that in their reply papers, defendants claim plaintiff changed one of the dates in his original complaint to salvage it as timely and that he continued to include time-barred claims in both his opposition papers and proposed amended complaint.

Defendants correctly assert that claims occurring prior to July 1, 2018, are time-barred. Specifically, plaintiff alleges that in 2017, Sergeant Maric told another officer not to ask plaintiff for directions because "he does not speak English." (See NYSCEF Doc No. 1 ¶ 14.) This statement falls outside the statute of limitations and is time-barred. However, the resolution on the timeliness of the allegations which have been given broad timeframes or no timeframes must await a properly developed record concerning the dates of plaintiff's claims.

Accordingly, that branch of the motion for an order dismissing the complaint, pursuant to CPLR 3211 (a) (5), as time-barred is granted solely to the extent that plaintiff is barred from asserting any claims accruing prior to July 1, 2018.

B. Discrimination Claims

Defendants next move to dismiss pursuant to CPLR 3211 (a) (7) for plaintiff's failure to sufficiently plead violations of the State or City HRL. Pursuant to CPLR 3211 (a) (7), a party may move to dismiss a claim on the ground that the pleading fails to state a cause of action. Upon such a motion the court must accept the facts alleged as true and determine simply whether plaintiff's facts fit within any cognizable legal theory. (See CPLR 3026; Morone v Morone, 50 NY2d 481 [1980].) The complaint shall be liberally construed, and the allegations are given the benefit of every possible favorable inference. (See Leon v Martinez, 84 NY2d 83, 87 [1994].)

In the context of a motion to dismiss, employment discrimination cases are generally reviewed under notice pleading standards and therefore "a plaintiff alleging employment discrimination 'need not plead [specific facts establishing] a prima facie case of discrimination' but need only give 'fair notice' of the nature of the claim and its grounds." (Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009], citing Swierkiewicz v Sorema N. A., 534 US 506, 514-515 [2002].)

Under the State HRL, plaintiffs must state a prima facie cause of action for employment discrimination by pleading that (1) they are members of a protected class; (2) they are qualified {**77 Misc 3d 1006}to hold the position; (3) they suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. (See Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 [2006]; see also Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004].)

While the analysis of pleading a discrimination claim under the City HRL follows the same four rubrics as the State HRL, the more liberal intent of the City HRL must be considered in evaluating the adequacy of a plaintiff's claim. (See Romanello v Intesa Sanpaolo, S.p.A., 22 NY3d 881, 884-885 [2013]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 36-37 [1st Dept 2011]; Local Law No. 85 [2005] of City of NY § 7 [declaring that the provisions of the City HRL "shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws . . . have been so construed"], amdg Administrative Code § 8-130.) The City HRL applies a more lenient standard, wherein the plaintiff need "only show she was treated [*4]differently from others in a way that was more than trivial, insubstantial, or petty." (Dimitracopoulos v City of New York, 26 F Supp 3d 200, 216 [ED NY 2014].) However, the City HRL is not a "general civility code," and a plaintiff must still show "that the conduct is caused by a discriminatory motive." (See Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 110 [2d Cir 2013].)

For purposes of this motion, defendants do not dispute that plaintiff is a member of a protected class or was qualified to hold his position. However, defendants do dispute that plaintiff sufficiently alleges that he was subjected to adverse employment actions under circumstances that give rise to an inference of discrimination. Plaintiff alleges a number of instances of claimed discrimination that may or may not be outside of the statute of limitations. First, plaintiff alleges that Sergeant Fills would regularly state that "the NYPD [does] not want 'these kind of people' on the job" (NYSCEF Doc No. 1, summons and complaint ¶¶ 32-33), which plaintiff believed was in reference to his race and national origin. According to plaintiff, Sergeant Fills also told plaintiff that he placed plaintiff "in the middle of the intersection so [he would] get hit by a car." (Id. ¶¶ 35-36.) Plaintiff further alleges that Sergeant Maric would "joke that homeless people looked like plaintiff and point out homeless people and state that 'there goes Juillet.' " (Id. ¶ 37.){**77 Misc 3d 1007}

As a result of this alleged racial animus, plaintiff claims that he suffered economically in the form of missed overtime pay and a denial of promotion to detective and transfers to specialized units, thereby sufficiently pleading the adverse employment action element. (See Forrest v Jewish Guild for the Blind, 3 NY3d at 306 [holding, that "(a) materially adverse change might be indicated by a 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" (internal quotation marks and citation omitted)].)

In opposition, defendants argue that the alleged remarks made by Sergeant Fills and Sergeant Maric are facially neutral and do not give rise to an inference of discrimination. At this preliminary stage, before discovery has occurred, the court disagrees. Here, "you people" could be interpreted as having a negative racial connotation. (See Wooten v Reconstruction Home, Inc., 2005 WL 1502149, *11, 2005 US Dist LEXIS 44738, *32 [ND NY, June 24, 2005, No. 5:02-CV-01278 (NPM)]; see also Winston v Verizon Servs. Corp., 633 F Supp 2d 42, 53 [SD NY 2009] [finding that a statement such as "you people cannot do anything right" could permit a reasonable jury to find discriminatory motivation].) While more context is needed, such phrases combined with "greater specificity as to the context of [such phrases'] usage" could provide a basis for a jury to draw an inference of discrimination. (See Whitehurst v 230 Fifth, Inc., 998 F Supp 2d 233, 253 [SD NY 2014], citing Griffin v Ambika Corp., 103 F Supp 2d 297, 314 [SD NY 2000].)

Accordingly, plaintiff's complaint, on its face, is sufficient to withstand a CPLR 3211 (a) (7) challenge to his State and City HRL causes of action sounding in discrimination.

C. Retaliation Claims

Defendants next argue that the complaint both fails to provide requisite specificity about the nature of plaintiff's alleged protected activity and fails to plead a nexus between any such protected activity or alleged retaliation.

Plaintiff claims that in February 2020 he made a complaint to the NYPD Equal Employment Opportunity Division regarding bullying and discrimination. (See NYSCEF Doc [*5]No. 1 ¶¶ 74, 77.) Eight months later, his post was changed. (See id. ¶ 83.) According to plaintiff's cross motion, plaintiff filed {**77 Misc 3d 1008}complaints in 2019 and October 2020,^[FN1] in November 2020 with the filing of the instant lawsuit, and in May 2021 when he was interviewed by the Internal Affairs Bureau. (See NYSCEF Doc No. 11, plaintiff's affirmation in opp at 19.)

Plaintiff claims that after making these complaints, he was: forced to stand in the rain for his entire tour, as he was not provided with a patrol vehicle; threatened at roll call; denied transfers to other units; and referred to "Psych Services." (See NYSCEF Doc No. 11, plaintiff's affirmation in opp.) In his proposed amended complaint, plaintiff also alleges that after filing the instant suit in November 2020, he received a negative quarterly evaluation. (See NYSCEF Doc No. 12 ¶¶ 150-154.) He alleges that the reinstatement of the negative evaluations, even after receiving an excellent 2020 evaluation when he was no longer supervised by Sergeants Fills and Maric, was in retaliation for filing this lawsuit.

To make a prima facie claim of retaliation under the State HRL, a plaintiff must show that (1) he has engaged in a protected activity; (2) his employer was aware of such activity; (3) he suffered an adverse employment action based upon the activity; and (4) a causal connection exists between the protected activity and the adverse action. (See Santiago-Mendez v City of New York, 136 AD3d 428, 428-429 [1st Dept 2016]; Forrest, 3 NY3d at 312-313.) "Under the City HRL, the test is similar, though rather than an adverse action, the plaintiff must show only that the defendant 'took an action that disadvantaged' him or her." (Harrington v City of New York, 157 AD3d 582, 585 [1st Dept 2018], citing Fletcher v Dakota, Inc., 99 AD3d 43, 51-52 [1st Dept 2012].) Pursuant to the City HRL, the employer's actions need not be "materially adverse" to the plaintiff, but merely "reasonably likely to deter a person from engaging in protected activity." (Williams v New York City Hous. Auth., 61 AD3d 62, 71 [1st Dept 2009]; Administrative Code § 8-107 [7].)

There is no "bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship." (See Gorman-Bakos v Cornell Coop. Extension of Schenectady County, 252 F3d 545, 554 [2d Cir 2001].) Nevertheless, "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an {**77 Misc 3d 1009}adverse employment action as sufficient evidence of causality . . . uniformly hold that the temporal proximity must be 'very close.' " (Clark County School Dist. v Breeden, 532 US 268, 273 [2001] [citations omitted].) Courts have however recognized that employers may have "waited to exact their retaliation at an opportune time." (See Espinal v Goord, 558 F3d 119, 129 [2d Cir 2009].)

Here, plaintiff claims that after filing his notice of claim, he was again issued negative quarterly evaluations. He alleges that this retaliatory action was to deter plaintiff and others like him from engaging in protected activity. Plaintiff maintains that the negative evaluations were "materially adverse," in that they limited promotions and plaintiff's ability to apply for transfers to other units. Plaintiff further alleges that he suffered loss of tangible job benefits, such as loss of overtime pay and night differential pay. (See Emengo v State of New York, 143 AD3d 508, 509 [1st Dept 2016] [reinstating retaliation claim pursuant to State HRL by employee who was denied promotional opportunities and merit pay by employer].) These claimed retaliatory [*6]consequences could dissuade a reasonable worker from engaging in protected activity, satisfying the requirement of the City HRL. (See Williams v New York City Hous. Auth., 61 AD3d at 71; Administrative Code § 8-107.)

Accepting plaintiff's allegations as true, and drawing all inferences in his favor, as the court must do at this stage of the proceeding, plaintiff has sufficiently alleged retaliation under the City and State HRL.

D. Plaintiff's Cross Motion to Amend the Complaint

Plaintiff cross-moves for leave to amend his complaint to add additional facts.^[FN2] Defendants argue that plaintiff's cross motion to amend the complaint is futile because it merely reiterates the sum and substance of the original complaint.

It is well settled that leave to amend the pleadings is to be freely granted, as long as there is no prejudice or surprise to the adversary. (See CPLR 3025 [b].) Pursuant to CPLR 3025 (b), "[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties." (See also RBP of 400 W42 St., Inc. v 400 W. 42nd St. Realty Assoc., 27 AD3d 250, 250 [1st Dept 2006].){**77 Misc 3d 1010}

The trial court has discretion to grant a motion to amend pleadings, and "[i]n exercising its discretion, the court should consider how long the amending party was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom." (Branch v Abraham & Strauss Dept. Store, 220 AD2d 474, 475 [2d Dept 1995].)

Here, plaintiff offers a reasonable excuse for the delay. Moreover, defendants do not assert that they would be prejudiced or surprised by the requested amendment and the court finds no indication of same. Notably, defendants were previously made aware of the facts plaintiff seeks to add to his complaint, as plaintiff filed complaints with the NYPD prior to this action detailing same. Contrary to defendants' claims, plaintiff's proposed amended complaint is not futile as it incorporates additional facts not in the original complaint. Therefore, plaintiff's cross motion to amend his pleadings is granted.

Accordingly, it is hereby ordered that defendants' motion to dismiss is granted solely to the extent of dismissing all claims which have occurred prior to July 1, 2018, and is otherwise denied; and it is further ordered that plaintiff's cross motion to amend his complaint is granted, with the exception of any claim that occurred prior to July 1, 2018, and the amended complaint in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further ordered that the defendants shall serve an answer to the amended complaint or otherwise respond thereto within 20 days from the date of said service; and it is further ordered that the Clerk of the Court shall schedule a preliminary conference to be held [*7]as per administrative instructions.^[FN3]