Carvalho Calvelos v. City of New York

Background

Manuel Carvalho Calvelos was hired by the New York City Department of Correction as a correction officer and was later assigned to the West Facility on Rikers Island. He was a probationary employee whose probation was scheduled to end on January 13, 2018. The Department terminated him on January 5, 2018, citing uses of force involving inmates during his earlier assignment.

Calvelos alleged that Warden Clement Glenn and other correction officials treated him less favorably because he is Caucasian and they are of West Indian descent. He alleged that officials assigned him to dangerous posts, encouraged or failed to prevent inmate attacks, brought disciplinary charges against him, suppressed reports of misconduct, and threatened to fire him. He also alleged that he reported corruption and misconduct, consulted an outside deputy warden, and complained to the City’s Equal Employment Opportunity Office about racial discrimination before his termination.

The complaint asserted eight counts, including race discrimination and retaliation under federal law, retaliation under the First Amendment, conspiracy, wrongful termination, discrimination under New York State and New York City laws, and hostile work environment. Defendants moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6). On a Rule 12(b)(6) motion, the court asks whether the complaint plausibly alleges a legal claim, while generally accepting its factual allegations as true at that stage.

Court’s analysis

The court held that the complaint plausibly alleged racial discrimination under 42 U.S.C. § 1981 against Warden Glenn and Deputy Commissioners Pinnock, Cruz, and Villalona, but not against the captain defendants or the City. The court relied in part on the alleged sequence of events, including Glenn’s alleged reference to Calvelos’s race while threatening to fire him, the later change in disciplinary rules, and the subsequent recommendation and decision to terminate him. The § 1981 claim against the captain defendants was dismissed without prejudice, and the claim against the City was dismissed because the complaint did not plausibly allege that a City policy, custom, or practice caused the discrimination.

The Title VII race-discrimination claim survived against the City but was dismissed against the individual defendants because Title VII does not impose liability on individuals. The court also held that Calvelos plausibly alleged retaliation for his complaint to the City’s Equal Employment Opportunity Office. The related retaliation claims under § 1981 and Title VII survived against the officials involved in his termination and against the City under Title VII.

For the First Amendment retaliation claim, the court concluded that most of Calvelos’s on-the-job reports about workplace events were part of his official duties and therefore were not protected citizen speech. The court nevertheless found plausible claims based on his complaint to the City’s Equal Employment Opportunity Office and his consultation with Deputy Warden Joseph Caputo about alleged contraband exchanges and misconduct. Those claims survived against Warden Glenn, Deputy Commissioners Pinnock, Cruz, and Villalona, and, for the Caputo-related speech, Captains Quincy Oudekerk and Denise Phillips. The First Amendment retaliation claim was dismissed without prejudice against the City and the remaining individual defendants because the complaint did not plausibly allege a City policy, custom, or practice.

The court allowed the § 1985(3) conspiracy claim based on alleged racially motivated conduct to proceed against Warden Glenn and the three Deputy Commissioners. It dismissed the conspiracy theory based on First Amendment retaliation because the complaint did not allege the required racial or other class-based motivation. The general wrongful-termination claim was dismissed against all defendants, with leave to replead.

The discrimination claims under the New York City Human Rights Law and New York State Human Rights Law survived against the City, Warden Glenn, and Deputy Commissioners Pinnock, Cruz, and Villalona. They were dismissed without prejudice against the captain defendants. The hostile-work-environment claims survived against the City, Warden Glenn, and the three Deputy Commissioners; they were dismissed without prejudice against the captain defendants. The court also ruled that discrete Title VII discriminatory acts occurring before August 15, 2017 were outside the filing period, although those acts could be considered as background evidence; it treated the hostile-work-environment claim differently because that type of claim involves continuing conduct.

Disposition

Chief Judge Colleen McMahon granted in part and denied in part both defendants’ motions to dismiss. Specifically:

- Count I: The motion was denied against Warden Glenn and the Deputy Commissioner Defendants and granted against the Captain Defendants and the City. - Count II: The motion was denied against Captains Oudekerk and Phillips, Warden Glenn, and the Deputy Commissioner Defendants and granted against the remaining Captain Defendants and the City. - Count III: The motion was denied against the City and granted against all individual defendants. - Count IV: The motion was denied against Warden Glenn and the Deputy Commissioner Defendants and granted against the Captain Defendants and the City. - Count V: The motion was granted against all defendants, with leave to replead. - Counts VI, VII, and VIII: The motion was denied against the City, Warden Glenn, and the Deputy Commissioner Defendants and granted against the Captain Defendants.

The order states that the dismissed claims against the relevant defendants could be repleaded and required an amended complaint within 21 days. The court denied Calvelos’s request to strike the defendants’ materials and declined to impose an additional stay of discovery.