Okafor v. New York State Insurance Fund

Background

Isaac Okafor, a 66-year-old Black attorney of Nigerian national origin, alleged that the New York State Insurance Fund (NYSIF), a state agency, and NYSIF employees David Wertheim, James Fiedler, Charley McKay, and Michael Totaro discriminated against him and retaliated against him. He alleged that NYSIF promoted Totaro, a younger white employee, to Director of Legal Collections instead of promoting Okafor, even though Okafor was more experienced and had trained Totaro. Okafor alleged that McKay told him Totaro was selected because he was “younger and would be there far longer.”

Okafor also alleged that NYSIF later denied him a promotion to Supervising Attorney, that Totaro threatened him physically after Okafor complained about criticism and scrutiny, and that NYSIF delayed Okafor’s requested transfer to another department. Okafor filed a discrimination complaint with the New York State Division of Human Rights in May 2023. The agency dismissed that complaint for administrative convenience at Okafor’s request in April 2024.

The defendants moved to dismiss the amended complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6).

ADEA claims

The court denied the Rule 12(b)(1) motion as to Count I. Okafor sued Wertheim and Fiedler in their official capacities for prospective injunctive relief under the Age Discrimination in Employment Act (ADEA). The court held that the Eleventh Amendment did not bar those claims because the exception for suits seeking prospective relief against state officials for ongoing violations of federal law applied.

The court also denied the Rule 12(b)(6) motion as to Count I. Okafor plausibly alleged that age was the necessary cause of the failure to promote him to Director of Legal Collections. The court relied on the alleged statement that NYSIF wanted someone younger who would remain in the position longer, along with Okafor’s allegations that he was more experienced and qualified than Totaro and was eligible to retire while Totaro was not.

Title VII claims

The court denied the motion to dismiss Count II. Okafor plausibly alleged that NYSIF denied him the Director position because of race, color, or national origin. Although the alleged statement about choosing someone younger supported age discrimination rather than race, color, or national-origin discrimination, the court held that Okafor’s allegations that Totaro was white, non-Nigerian, and less qualified than Okafor supported a minimal inference of discriminatory intent under Title VII.

Sections 1981 and 1983

The court granted the motion to dismiss Okafor’s claims under 42 U.S.C. § 1981 in Count III. Okafor conceded that § 1981 does not provide a separate private cause of action for damages against state actors, and the court held that § 1983 provides the exclusive federal damages remedy for such claims.

The court also granted the motion to dismiss the § 1983 claims. Those claims alleged that Wertheim, Fiedler, and McKay denied Okafor a promotion because of race, color, and national origin in violation of equal-protection rights. The court held that Okafor had not plausibly alleged that those characteristics were the necessary cause of the denial. The complaint’s allegations about a history of failing to promote Black and Nigerian employees might support race, color, or national origin as motivating factors, but they did not satisfy the stricter necessary-cause standard applicable to the § 1983 claims.

New York State and New York City claims

The court rejected the argument that sovereign immunity barred Okafor’s New York City Human Rights Law claims against the individual defendants in their personal capacities. It held that the City law imposes an individual duty not to discriminate, so state employees are not automatically shielded from personal liability for violating that law while performing state work.

The court also held that the individual defendants could potentially be liable under the New York State Human Rights Law for aiding and abetting discrimination, even though NYSIF itself could not be sued for damages under the statute because of sovereign immunity. Okafor plausibly alleged both that NYSIF violated the statute in substance and that the individual defendants actually participated in the alleged discrimination.

The court therefore denied the motion to dismiss Counts IV and V except to the extent Okafor sought state-law declaratory or injunctive relief that would compel the defendants to act. As to that relief, the court granted the motion to dismiss.

Retaliation claims

The court held that Okafor plausibly alleged protected activity, including filing the Division of Human Rights complaint and complaining to Totaro about criticism and scrutiny. It also held that the alleged physical threat, delay in transferring Okafor, and denial of the Supervising Attorney promotion could qualify as materially adverse actions. The timing of those events supported a plausible causal connection to Okafor’s protected activity.

The court therefore denied the motion to dismiss the retaliation claims generally. However, the court stated that the ADEA and Title VII do not impose individual liability and dismissed the retaliation claims under those statutes against the individual defendants. The opinion’s footnote also states that the court did not consider certain additional retaliation allegations because they were not included in the amended complaint.

Disposition

The court held that the defendants’ motion to dismiss was granted in part and denied in part. The parties were directed to submit a Rule 26(f) report by August 22, 2025, and the clerk was directed to close all pending motions.