Colon v. City Of New York

Background

Thomas Colon sued the City of New York and Steven Banks, Jennifer Yeaw, Jill Berry, Mark L. Neal, Matthew Brune, Martha Calhoun, Paul Ligresti, and Isaac McGinn. The complaint alleged race and ancestry discrimination and retaliation under 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights Law, and the New York City Human Rights Law. Colon also asserted a selective-enforcement claim under the Equal Protection Clause, a defamation claim, and a municipal-liability claim against the City.

Colon alleged that he worked for the City’s Human Resources Administration from 1995 until his termination in July 2019. He claimed that he was paid less than comparable white and non-Hispanic employees, denied a promotion in 2016, stripped of management responsibilities later that year, demoted and subjected to a 32% salary reduction in 2018, investigated and charged with misconduct concerning Medicaid payroll practices, and terminated. He further alleged that these actions were retaliation for opposing discriminatory personnel decisions, improper hiring and promotion practices, and other unlawful conduct. He alleged that Banks and Calhoun caused a potential job offer from the Department of Design and Construction to be rescinded and that McGinn made a defamatory statement about his termination.

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to support a plausible legal claim. Magistrate Judge Sarah L. Cave recommended granting the motion in part and denying it in part. Colon objected to several recommendations, and the district court reviewed the challenged portions more closely and reviewed the unchallenged portions for clear error.

Rulings on timeliness and discrimination claims

The court adopted the recommendation that claims based on conduct before November 8, 2016 generally were time-barred. It specifically upheld dismissal with prejudice of claims based on Colon’s November 2014 salary complaints, April 2015 complaints about the hiring of an employee, and complaints about the 2015 mayoral meetings. The court also held that unequal-pay claims based on conduct after November 8, 2016 were sufficiently alleged at this stage, sustaining Colon’s objection on that point. However, the court stated that Colon’s Section 1983 unequal-pay discrimination theory failed because he had not identified a favorable comparator within the limitations period.

The court allowed the Section 1983 discrimination claim based on the 2016 promotion denial to proceed against Brune, but not against the other individual defendants. It also allowed the discrimination claim based on the 2016 functional demotion to proceed against Berry, but not against the other individual defendants.

The court upheld dismissal of the discrimination claim based on the 2018 demotion and salary reduction because Colon alleged that he was later restored to his prior position and salary, with retroactive pay and benefits. The court sustained Colon’s objection concerning the disciplinary charges and termination, concluding that the complaint plausibly alleged that those actions were motivated by his race and ancestry. Thus, those discrimination allegations were not dismissed on the pleading issue addressed in the order.

Rulings on retaliation claims

The court sustained Colon’s objection to the recommendation that retaliation claims based on racial-discrimination complaints could not proceed under the Equal Protection Clause through Section 1983. The court held that such retaliation claims are actionable under Section 1983.

The court nevertheless dismissed without prejudice the retaliation claims based on Colon’s exclusion from high-level meetings, criticism, the 2018 demotion and salary reduction, and the alleged rescission of the Department of Design and Construction job offer. Regarding the job offer, the court held that Colon’s allegations that Banks and Calhoun smiled at and greeted him unusually warmly after his interview did not plausibly support his allegation that they sabotaged the offer. The court stated that the result was the same under the more liberal standard for New York City Human Rights Law retaliation claims.

The court adopted the recommendations that retaliation claims based on the 2016 promotion denial could proceed against Brune, claims based on the 2016 functional demotion could proceed against Berry, and claims based on the disciplinary charges and termination could proceed against Banks. It also adopted the recommendation that Colon’s municipal-liability claim was adequately pleaded as to the Section 1981 and Section 1983 retaliation claim based on his termination.

Selective enforcement and defamation

The court sustained Colon’s objection concerning his selective-enforcement claim. Although the complaint did not adequately connect the disciplinary charges and termination to race or ancestry for one theory, the court found that it plausibly alleged that Banks acted with a malicious, bad-faith motive to punish Colon for opposing discrimination and to conceal Banks’s alleged involvement in the Medicaid payroll scheme. The order therefore allowed that theory to proceed as to Banks.

The defamation claim was dismissed with prejudice. The court also adopted the recommendation that claims against Neal, Calhoun, Ligresti, McGinn, and Yeaw be dismissed for failure to state a claim, to the extent specified in the Report and Recommendation. The order does not provide a single consolidated claim chart, so the precise overlap between that dismissal and the individual claims discussed elsewhere must be read from the order and the Report and Recommendation together.

Amendment and disposition

The court granted leave to amend claims it found inadequately pleaded. It denied leave to amend claims that were time-barred or procedurally barred because those defects could not be cured by amendment. The court concluded: “Defendants’ motion to dismiss is granted in part and denied in part.” It adopted the Report and Recommendation to the extent stated in the order, addressed all of Colon’s objections, terminated the motion, and set October 8, 2021, as the deadline for any amended complaint.