Kamala Roper, Plaintiffs, v. The City of New York, Frantz Souffrant, individually, and Joseph Antonio, individually, Defendants. (2023)

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

NYSCEF Doc #s 10-14; 21 by Defendants

NYSCEF Doc #s 17-19; 23 by Plaintiff

Upon the foregoing cited papers and after oral argument on April 19, 2023, pursuant to CPLR § 3025(b) the Decision and Order on Plaintiff's Motion to Amend the Complaint is GRANTED. Pursuant to CPLR § 3211(a)(7), the Decision and Order on Defendants The City of New York, Frantz Souffrant, and Joseph Antonio's ("City") Motion to Dismiss the Complaint for failure to state a claim for race and gender discrimination, a hostile work environment, or retaliation pursuant to the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"), is GRANTED in part and DENIED in part.

BACKGROUND

This action arises from alleged incidents of discrimination that Plaintiff, Kamala Roper, who identifies as African-American, experienced while working as a New York City police officer. Plaintiff joined the New York City Police Department ("NYPD") in March of 2000.¹ On October 18, 2021, Plaintiff was promoted to Lieutenant and was assigned to the 78th precinct, where Defendants Souffrant and Antonio were the Commanding Officer and Executive Officer, respectively.² During her time at the 78th Precinct, Plaintiff alleges being denied benefits (including overtime and promotional opportunities), having her authority undermined, being pressured to negatively evaluate a coworker, and receiving a poor evaluation and being disciplined based on her gender and race.³

Specifically, Plaintiff alleges she was pressured into giving poor reviews to a female sergeant,⁴ that female officers received poor evaluations compared to their male counterparts,⁵ and that these poor performance reviews hurt her economically by preventing other promotion opportunities within the Lieutenant rank or transfer opportunities to specialized units, and not approving overtime.⁶ Plaintiff further alleges that she was denied the position for Special Operations Lieutenant and that the position was given to a male Lieutenant with less experience and qualification than Plaintiff.⁷ Plaintiff claims these actions also resulted in creating a hostile work environment under the leadership of Defendant Souffrant, who is alleged to give promotional employment opportunities only to male officers and female officers with whom he had a personal relationship with.⁸

Plaintiff asserts multiple causes of action, including (1) gender discrimination in violation of New York State Executive Law § 296; (2) gender discrimination and hostile work environment in violation of New York State Executive Law § 296; (3) race discrimination in violation of New York State Executive Law § 296; (4) retaliation in violation of New York State Executive Law § 296; (5) gender discrimination in violation of New York City Administrative Code § 8-107; (6) gender discrimination and hostile work environment in violation of New York City Administrative Code § 8-107; (7) race and national origin discrimination in violation of New York City Administrative Code § 8-107; (8) retaliation in violation of New York City Administrative Code § 8-107; (9) sex and gender discrimination strict liability in violation of New York City Administrative Code § 8-107(13)(b); (10) race discrimination strict liability in violation of New York City Administrative Code § 8-107(13)(b); and (11) retaliation strict liability in violation of New York City Administrative Code § 8-107(13)(b).⁹

Pursuant to CPLR 3211(a)(7), Defendants seek dismissal because the complaint fails to state a claim for race and gender discrimination, a hostile work environment, or retaliation pursuant to New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL), and Plaintiff is not entitled to punitive damages.¹⁰ Plaintiff brings a motion to amend the complaint.¹¹

DISCUSSION

As an initial matter, Plaintiff's motion to amend the complaint is granted. A party may amend a pleading "at any time" with leave of Court. CPRL § 3025(b); Flowers v. Mombrun, 212 AD3d 713 (2d Dept. 2023). Absent prejudice or surprise resulting from the delay in seeking leave, such applications are freely granted unless the proposed amendment is insufficient or devoid of merit. Id. at 714; Onewest Bank, FSB v. N & R Family Tr., 200 AD3d 902 (2d Dept. 2021). It is soundly within the trial court's discretion to determine whether to permit or deny amendment. Edenwald Contr. Co., Inc. v. City of New York, 60 NY2d 957 (1983).

Here, Defendants are not prejudiced by Plaintiff's proposed amendments to the complaint and said proposed amendments are not devoid of merit. Therefore, the Court shall consider Plaintiff's amended complaint in determining the outcome of Defendants' motion to dismiss pursuant to CPLR § 3211(a)(7).

a. Plaintiff's Race and Gender Discrimination Claims

Defendants argue Plaintiff fails to state a claim under the NYSHRL or NYCHRL for discrimination because the amended complaint does not set forth any facts suggesting that Plaintiff was treated differently because of her protected status or that the Defendants were motivated by discriminatory animus based on race or gender.¹² Defendants also aver that Plaintiff fails to plead an adverse employment action.¹³

"When reviewing a defendant's motion to dismiss the complaint for failure to state a cause of action, a court must give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with the benefit of every favorable inference." Cortlandt St. Recovery Corp. v. Bonderman, 31 NY3d 30. 38 (2018). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 (2005). "Unlike a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings." Davis v. Boeheim, 24 NY3d 262 (2014). The "ultimate question is whether, accepting the allegations and affording these inferences, plaintiff can succeed upon any reasonable view of the facts stated." Perez v. Y & M Transportation Corp., 196 N.Y.S.3d 145 (2d Dept. 2023) (quoting Doe v. Bloomberg L.P., 36 NY3d 450 [2021]).

Under NYSHRL, a plaintiff alleging employment discrimination must establish: (1) being a member of a protected class; (2) being qualified to hold the position; (3) suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Ayers v. Bloomberg, L.P., 203 AD3d 872 (2d Dept. 2022). Under NYCHRL, a plaintiff must establish being subjected to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic. Ayers, 203 AD3d at 874; Golston-Green v. City of New York, 184 AD3d 24 (2d Dept. 2020). An inference of discrimination is a "flexible standard that can be satisfied differently in differing factual scenarios." Sethi v. Narod, 12 F.Supp.3d 505 (E.D.NY 2014) (citing Howard v. MTA Metro-N. Commuter R.R., 866 F.Supp.2d 196 [S.D.NY 2011]).

Here, Plaintiff alleges seven adverse employment actions she was subjected to because of race and gender discrimination. Specifically: (1) being denied access to more overtime and promotional opportunities; (2) having received lower evaluations; (3) had evaluations she issued to subordinates changed; (4) being denied days off; (5) being denied trainings; (6) having her probation period extended; and (7) being outcasted from meetings and communications with her supervisors.¹⁴

The 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 at 306 (2004). That adverse change must be more than a mere inconvenience or alteration of job responsibilities, and generally manifests itself in the forms of "termination from 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. at 306. Notably, the denial or restrictions of overtime and promotional opportunities have been found to constitute adverse employment actions. Ayers, 203 AD3d at 874; Bilitch v. New York City Health & Hosps. Corp., 194 AD3d 999, 1001 (2d Dept. 2021).

In accepting the allegations as true and providing Plaintiff with the benefit of every favorable inference, Plaintiff's amended complaint is sufficient to withstand a CPLR § 3211(a)(7) challenge to her gender discrimination claims under both the NYSHRL and NYCHRL. However, Plaintiff's amended complaint is not sufficient to withstand same challenge to her race discrimination claims. Plaintiff sufficiently alleged adverse employment actions which occurred under circumstances giving rise to an inference of gender discrimination given the disciplinary actions taken against her and other female officers that were not taken against similarly situated male officers in the precinct.¹⁵ Also Plaintiff was denied a promotional opportunity given to a male officer with less experience and qualifications.¹⁶ Positions allowing to maximize employment benefits (e.g. overtime) were given to male officers and only to sparce female officers with whom Defendant Souffrant allegedly had personal, intimate relationships.¹⁷ However, Plaintiff insufficiently alleged that these adverse actions occurred due to race discrimination. The only allegation in the complaint regarding Plaintiff's race is an allegation that Defendant Souffrant previously told undisclosed observers that "he does not like black females because they are too loud."¹⁸ By itself, this alleged remark is not enough to constitute evidence of race discrimination. Tihan v. Apollo Mgt. Holdings, L.P., 160 N.Y.S3d 245, 247 (1st Dept. 2022) (stray remark about Plaintiff being a "loud Turk" did not, by itself, support an inference of discrimination under the circumstances); Appleton v. City of New York, 2019 NY Slip Op. 30627(U), *13 (Sup. Ct. NY County, 2019).

Therefore, Pursuant to the NYSHRL and NYCHRL, Defendants' motion to dismiss Plaintiff's claims of race and gender employment discrimination for failure to state a claim is granted as to allegations of race discrimination but denied as to allegations of gender discrimination.

b. Plaintiff's Hostile Work Environment Claims

Defendants argue Plaintiff's hostile work environment claim must also be dismissed because Plaintiff failed to sufficiently allege: suffering more than petty slights and trivial inconveniences, being subjected to inferior conditions of employment because of her race or gender, being treated differently from similarly situated employees, and that Defendant Souffrant's statements regarding her work performance are isolated, innocuous comments.¹⁹ Plaintiff counters that she did sufficiently state a claim for a hostile work environment given the allegations raised, including being: repeatedly denied benefits of employment due to her race and gender, ignored, forced to work without assistance, given poor evaluations, denied transfers, denied promotional opportunities, and forced to discriminate against a female sergeant.²⁰

Under NYSHRL, a hostile work environment exists where a workplace is "permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." La Marca-Pagano v. Dr. Steven Phillips, P.C., 129 AD3d 918 (2d Dept. 2015) (citing Forrest v. Jewish Guild for the Blind, 3 NY3d 295 [2004]). A variety of factors are to be considered in determining whether a hostile work environment exists, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating, or a "mere offensive utterance," and whether the alleged actions "unreasonably interfere with an employee's work." Id. at 919-920. The abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment," which a "reasonable person would find to be so." Id. at 920. However, under NYCHRL, a plaintiff must only show that he or she was treated less well than other employees because of the relevant characteristic. Nelson v. HSBC Bank USA, 87 AD3d 995 (2d Dept. 2011). The conduct alleged must exceed what a reasonable victim of discrimination would consider petty lights and trivial inconveniences, and mere personality conflicts will not suffice to establish a hostile work environment. Reichman v. City of New York, 179 AD3d 1115 (2d Dept. 2020).

Here, after considering all the circumstances, Plaintiff's hostile work environment claim based on her gender discrimination claims, survives the § 3211(a)(7) challenge under both the NYSHRL and NYCHRL. Contrary to Defendants' contention, the Court does not agree that Plaintiff's allegations amount to "petty slights and trivial inconveniences," as among other things, Plaintiff alleges she was told by a Lieutenant to give a female officer a poor evaluation because said female officer then "could not claim discrimination";²¹ had her evaluation for the female officer changed to reflect a lower grade than Plaintiff issued;²² was given multiple poor evaluations with no explanation;²³ had her probationary period extended;²⁴ was given negative "crafts"²⁵ without her knowledge;²⁶ worked in an environment where employees who had a personal, intimate relationship with her supervisor were favored;²⁷ and her supervisor stated that "he does not like black females because they are too loud."²⁸ Since a reasonable person could find these actions to have created an "objectively hostile or abusive environment," under the totality of the circumstances, it cannot be said these allegations would not unreasonably interfere with an employee's work performance. Forrest, 3 NY3d at 311; La Marca-Pagano, 129 AD3d at 919-920.

Therefore, Defendants' motion to dismiss the Plaintiff's claims of hostile work environment, based on failure to state a claim for gender discrimination under both the NYSHRL and NYCHRL, is denied.

c. Plaintiff's Retaliation Claims

Defendants argue that the retaliation claims must also be dismissed because Plaintiff's allegations are vague and do not establish a causal connection between a protected activity and adverse action.²⁹ Plaintiff contends she sufficiently plead retaliation given her refusal to discriminate against a named female officer, complained about Defendant Souffrant's favorable treatment of female officers with whom he allegedly had a personal, intimate relationship, filed the instant suit and alleges to being subjected to continued adverse actions.³⁰

To state a claim for retaliation under NYSHRL, a plaintiff must show that: (1) she has engaged in protected activity; (2) her employer was aware that she participated in such activity; (3) she suffered an adverse employment action based upon her activity; and (4) there is a causal connection between the protected activity and the adverse action. Forrest, 3 NY3d at 312-313; Reichman, 179 AD3d at 1119. An adverse employment action, in the context of unlawful retaliation, is an action which may have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Keceli v. Yonkers Racing Corp., 155 AD3d 1014 (2d Dept. 2017); Reichman, 179 AD3d at 1119. "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm" Reichman, 179 AD3d at 1119 (quoting Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 [2006]).

NYCHRL offers broader protection. Albunio v. City of New York, 16 NY3d 472, 477-478 (2011); Reichman, 179 AD3d at 1119. Under NYCHRL, a plaintiff must show that: (1) she engaged in a protected activity as defined under the NYCHRL; (2) her employer was aware that she participated in such activity; (3) her employer engaged in conduct that was reasonably likely to deter a person from engaging in that protected activity; and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct. Reichman, 179 AD3d at 1119 (citing Sanderson-Burgess v. City of New York, 173 AD3d 1233 [2d Dept. 2019]).

Plaintiff has sufficiently stated a cause of action for retaliation under both NYSHRL and NYCHRL. Plaintiff alleges that after making internal complaints of discrimination, she was negatively evaluated and "crafted" numerous times,³¹ given a less favorable schedule and duties,³² subjected to disciplinary actions in the form of a command disciplines,³³ denied a promotion for which she qualified,³⁴ her probationary period was extended and was placed on performance monitoring,³⁵ and was ignored by her supervisor after the complaints.³⁶ See Kassapian v. City of New York, 155 AD3d 851 (2d Dept. 2017) (plaintiff sufficiently stated a cause of action for unlawful retaliation where plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted after complaining to a supervisor regarding alleged sexual harassment).

Therefore, Defendants' motion to dismiss the Plaintiff's claims of retaliation, based on failure to state a claim as to gender discrimination under both the NYSHRL and NYCHRL is denied.

All other relief not expressly addressed herein is denied.

This constitutes the Decision and Order of the Court.

Date: November 28, 2023

___________________________

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.

FOOTNOTES

1.   See NYSCEF Doc. # 1 & NYSCEF Doc. # 19.

2.   NYSCEF Doc. # 19 at ¶¶ 22-25.

3.   NYSCEF Doc. # 19.

4.    Id.at ¶¶ 29-48.

5.    Id.at ¶¶ 129-144.

6.    Id. at ¶¶ 103-128.

7.    Id. at ¶¶ 348-373.

8.    Id. at ¶¶ 54-58; 109-112; 156-160; 171-175; 198-207; 356-358.

9.    Id. at pg.'s 37-52.

10.   See NYSCEF Doc. #s 10-13.

11.   See NYSCEF Doc. #s 17-19.

12.   NYSCEF Doc. # 13 at pg. 7.

13.    Id. at pg.'s 8-10.

14.   NYSCEF Doc. # 19.

15.    Id. at ¶¶ 29-48; 92-102; 133-148.

16.    Id. at ¶¶ 348-373.

17.    Id. at ¶¶ 54-58; 109-112; 156-160; 171-175; 198-207; 356-358.

18.    Id. at ¶ 326.

19.   NYSCEF Doc. # 13 at pg.'s 13-15.

20.   NYSCEF Doc. # 18 at pg.'s 21-22.

21.   NYSCEF Doc. # 19 at ¶ 32.

22.    Id. at ¶¶ 73-80.

23.    Id. at ¶¶ 91-100; 103-123.

24.    Id. at ¶¶ 101-102.

25.   A craft has been defined as a report/audit of the lieutenant officer's performance (Id. at ¶ 141).

26.    Id. at ¶¶ 136-137; 141-145.

27.    Id. at ¶¶ 156-174.

28.    Id. at ¶ 326.

29.   NYSCEF Doc. # 13 at pg. 15.

30.   NYSCEF Doc. # 18 at pg.'s 23-24.

31.    Id. at ¶¶ 137-145.

32.    Id. at ¶¶ 342-347.

33.    Id. at ¶¶ 245-253; 320-322.

34.    Id. at ¶¶ 348-373.

35.    Id. at ¶¶ 101-102; 123-126; 319; 379-383.

36.    Id. at ¶¶ 259-262; 279-281; 347; 384.

Patria Frias-Colón, J.