Brodt v. City of New York

4 F. Supp. 3d 562, 2014 U.S. Dist. LEXIS 29229, 2014 WL 896740
CourtDistrict Court, S.D. New York
DecidedMarch 6, 2014
DocketNo. 13 Civ. 3272(PKC)
StatusPublished
Cited by34 cases

This text of 4 F. Supp. 3d 562 (Brodt v. City of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brodt v. City of New York, 4 F. Supp. 3d 562, 2014 U.S. Dist. LEXIS 29229, 2014 WL 896740 (S.D.N.Y. 2014).

Opinion

MEMORANDUM AND ORDER

CASTEL, District Judge.

Plaintiff Hyman Brodt, who represents himself pro se, brings thirteen claims of religious discrimination and retaliation against the City of New York (the “City”), its Department of Information Technology [565]*565& Telecommunications (the “IT Department”) and two individual defendants, Lee Dicke and Michael Bimonte.

Brodt alleges that he was terminated and denied promotions under the pretext of budget limitations, when, in reality, the defendants discriminated against him on the basis of his Jewish faith. Plaintiff brings claims of retaliation and religious discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. McKinney’s Executive Law § 296, and the New York City Human Rights Law, New York City Administrative Code § 8-107. Plaintiff also asserts that the defendants violated the protection of free exercise of religion enshrined in the First Amendment to the U.S. Constitution and Article I of the New York Constitution, and equal protection under the law guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, Section 11 of the New York Constitution.

Defendants move to dismiss the Complaint pursuant to Rule 12(b)(6), Fed. R.Civ.P. For the reasons explained below, the Complaint fails to state a federal claim against the defendants. First, the IT Department is not an entity capable of being sued, and Brodt has agreed to voluntarily withdraw all claims against it. Second, Title VII does not permit Brodt’s claims against two individual supervisors, Lee Dicke and Michael Bimonte, Third, the Complaint fails to state claims of discrimination or retaliation under Title VII against the City or any other defendant, and does not plausibly allege violations of the United States Constitution. The Complaint therefore fails to state a federal claim for relief. The Court declines to exercise supplemental jurisdiction over Brodt’s remaining claims brought under New York law.

BACKGROUND

In reviewing the Complaint, the Court accepts all non-conclusory factual allegations as true, and draws every reasonable inference in favor of the plaintiff as the non-movant. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.2007) (per curiam).

In February 1999, the IT Department hired Brodt as a computer specialist. (Compl’t ¶ 28.) He passed a civil service exam for the computer specialist position in March 2001. (Compl’t ¶ 29.) In May 2008, the IT Department terminated him from the computer specialist position. (Compl’t ¶ 30.) Brodt was told that his termination was due to budget cuts, but, believing that this explanation was a pretext for discrimination, on May 23, 2003, he filed “an internal EEO complaint of an unlawful employment discrimination against [the IT Department].” (Compl’t ¶¶ 30-31.) On July 3, 2003, he withdrew the complaint after accepting a new IT Department position as associate staff analyst. (Compl’t ¶ 32.) The associate staff analyst position did not have permanent employee status, which could be earned by passing a civil service exam. (Compl’t ¶¶ 33-34.)

In June 2004, Brodt took a civil service exam for the staff analyst position. (Compl’t ¶ 33.) Brodt states that from June 2007 to January 2009, he repeatedly applied for a position that would grant him permanent status as a staff analyst, but that the IT Department informed him that it was “not picking anybody off the list at that time.” (Compl’t ¶ 34.) Plaintiff claims that “[t]his was not true as others on the list were picked up (i.e., hired).” (Compl’t ¶ 34.) He asserts that defendant Bimonte, whom the Complaint identifies as a deputy commissioner in the IT Department, had authority to make hiring decisions. (Compl’t ¶ 34.)

[566]*566Defendant Dicke became the Brodt’s immediate supervisor in October 2010. (Compl’t ¶ 35.) The two had “worked closely” together since 2003, but Dicke did not previously have a supervisory role as to Brodt, (Compl’t ¶ 35.) According to Brodt, during the course of his association with Dicke, Dicke made derogatory statements about Brodt’s religious faith. (Compl’t ¶ 36.) Specifically, Brodt alleges that Dicke “constantly mocked” him “for having 9 children,” and that when Brodt went to daily prayer service, Dicke “made derisive comments saying that he should not forget to pray for him also.” (Compl’t ¶ 37.) According to the Complaint, “What was most annoying was Mr. Dicke’s constant touching and nibbing of Mr. Brodt’s yarmulke.” (Compl’t ¶ 38.) Brodt states that he did not complain about Dicke’s conduct at the time because Dicke “promised that he would use his influence” with defendant Bimonte to get Brodt a permanent position. (Compl’t ¶ 38.)

Brodt states that beginning in June 2009, he took the first in a series of five additional civil service exams in hopes of being hired for a permanent position. (Compl’t ¶ 39.) In November 2012, the IT Department was notified that Brodt had passed relevant exams and was eligible for a permanent position. (Compl’t ¶ 40.) The Complaint alleges that Brodt still was not hired permanently. (Compl’t ¶ 40.)

According to the Complaint, in January 2012, Brodt received his first negative performance review, which was delivered by Dicke. (Compl’t ¶ 41.) Brodt also was told that, due to budget cuts, he would be terminated in April 2012. (Compl’t ¶ 42.)

As described in the Complaint, “[o]n January 24, 2012, Mr. Brodt filed an internal EEO complaint against Mr. Dicke for religious discrimination and religious harassment.” (Compl’t ¶ 43.) In March 2012, the “EEO concluded that Mr. Dick should attend [the IT Department’s] Sexual Harassment Prevention Training for Managers and should be counseled about personal space and workplace comments.” (Compl’t ¶ 44.) Brodt was terminated on April 17, 2012. (Compl’t ¶ 45.)

On or about May 23, 2012, Brodt filed a charge of discrimination with the Equal Employment Opportunity Commission (the “EEOC”). (Compl’t ¶ 4.) According to the Complaint, on July 12, 2012, the EEOC referred the matter to the New York State Division of Human Rights (the “NYSDHR”) for review. (Compl’t ¶5.) Separately, on May 30, 2012, Brodt filed a charge of discrimination with the NYSDHR. (Rowntree Dec. Ex. B.) In a written decision of November 20, 2012, the NYSDHR concluded that there was no probable cause to believe that the IT Department engaged in unlawful discrimination. (Rowntree Dec. Ex. D.) According to the Complaint, on February 22, 2013, the United States Department of Justice issued a right to sue letter. (Compl’t ¶ 6.) Separately, the defendants have submitted a Decision and Order from an Article 78 proceeding that Brodt commenced in the New York Supreme Court, Kings County, which dismissed Brodt’s claim that the IT Department unlawfully terminated him and refused to employ him in a permanent staff position in violation of Section 61 of the New York Civil Service Law. See Brodt v. New York City Dep’t of Info. & Telecomms., Index No. 4658/2012; Rowntree Dec. Ex. C.

The Complaint asserts thirteen separate counts of religious discrimination, Counts one (“Employment Discrimination”), four (“Unlawful Discrimination”), five (“Disparate Treatment”), six (“Disparate Impact”), seven (“Retaliation”) and thirteen (“Discriminatory Discharge”) allege violations of Title VII, along with claims brought under New York law.

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4 F. Supp. 3d 562, 2014 U.S. Dist. LEXIS 29229, 2014 WL 896740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brodt-v-city-of-new-york-nysd-2014.