Anand v. New York State Dep't of Taxation & Fin., 10-CV-5142 (SJF)(WDW)
| Decision Date | 18 June 2012 |
| Docket Number | 10-CV-5142 (SJF)(WDW) |
| Parties | VAS DEV ANAND, Plaintiff, v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, ANTHONY VANO, in his official capacity and individually, THOMAS VARGHESE, in his official capacity and individually, GREGORY WILEY, in his official capacity and individually, NONIE MANION (a.k.a. HONORA MANION), in her official capacity and individually, JOSEPH MACCHIO, in his official capacity and individually, ANNMARIE DWYER, in her official capacity and individually, DENNIS GILLOOLY, in his official capacity and individually, Defendants, |
| Court | U.S. District Court — Eastern District of New York |
On November 5, 2010, pro se plaintiff Vas Anand ("plaintiff") commenced this action against defendant New York State Department of Taxation and Finance, alleging, inter alia, employment discrimination in violation of various federal statutes. [Docket Entry No. 1]. On May 2, 2011, after the Department had served its motion to dismiss, plaintiff filed an amended complaint, which added defendants Anthony Vano, Thomas Varghese, Gregory Wiley, Nonie Manion (a.k.a. Honora Manion), Joseph Macchio, Annmarie Dwyer, and Dennis Gillooly, in their official and individual capacities (collectively, the "individual defendants").
Before the Court is defendants' motion to dismiss the amended complaint pursuant toFederal Rule of Civil Procedure 12(b) or, in the alternative, for a more definite statement pursuant to Rule 12(e). For the reasons that follow, defendants' motion is granted in part and denied in part.
Plaintiff identifies himself as a "disabled east Indian male" who has been employed by the New York State Department of Taxation and Finance (the "Department") since 1997. Amended Complaint ("Am. Compl") [Docket Entry No. 9] at ¶ 7. Before taking a position with the Department, plaintiff worked as a controller in various companies both in India and the United States. See id. at ¶ 8. The individual defendants are alleged to be current and former employees of the Department. At all times relevant to this action, Vano, Varghese, Macchio, Gillooly, and Wiley were employed as tax auditors or audit administrators, Dwyer was employed as "Program Manager," and Manion was employed as Director of Audits. Id. at ¶¶ 10-16.
Though unclear, plaintiff appears to challenge: (1) the Department's failure to promote plaintiff; and (2) various allegedly retaliatory actions allegedly taken against plaintiff after he filed a discrimination complaint and provided testimony at an administrative proceeding on behalf of another employee.
Plaintiff alleges that, in May 2007, he learned of a Department initiative to promote tax auditors. Id. at ¶ 24. According to the amended complaint, Manion, the Director of Audits,"stated that the promotions for tax auditors were meant to go to 'younger' employees." Id. at ¶ 25. Plaintiff applied, and was interviewed, for a promotion from the position of "Sales Tax Auditor 1" to "Sales Tax Auditor 2." Id. at ¶ 26. Although he was not awarded the promotion, plaintiff was informed by defendants Vano and Dwyer that he would "get another shot in about 9 months." Id. at ¶ 27. Plaintiff was subsequently informed by an unidentified individual that he would not be promoted because his experience auditing "cash" businesses was not highly valued by the Department. Id. at ¶ 34. At or around this time, plaintiff was seventy-three (73) years old. Id. at ¶ 33. Both individuals who received the promotions were under the age of forty (40). Id. Plaintiff alleges that these individuals "had the least service with the Department and also brought in the least tax revenue ... for the Department." Id. at ¶ 38.
In October and November 2007, plaintiff was given several performance evaluations that he claims contained "deliberate inaccurate statements" and comments designed "to paint [him] as a mediocre employee." Id. at ¶¶ 28-29. Plaintiff stresses his record of achievements at the Department and the assistance he provided to less experienced employees. See, e.g., id. at ¶¶ 29, 32, 36, 37, 39, 40, 43, 44.
On or about January 10, 2008, plaintiff filed a charge of discrimination with the New York State Division of Human Rights and U.S. Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of his race, color, sex, national origin, age, and disability. [Docket Entry No. 16-2]. In brief, the charge alleged that plaintiff was denied the promotion for which he applied, even though he had a record of performing his job independently and his performance reviews had been "satisfactory." Plaintiff alleged that the employees who had been selected for promotion were younger and less experienced than he was.Id.
The circumstances surrounding the next series of incidents are not entirely clear. Plaintiff alleges that, in early 2009, received a subpoena to testify on behalf another Department employee in a proceeding before the New York State Industrial Board of Appeals, that he was "discouraged" from testifying by "Tax Department management" and that "[d]efendants made several strong-arm attempts to interfere with Plaintiff's testimony," that he did testify, but was placed on unpaid administrative leave "immediately" after doing so, and that the Department filed "fake charges of harassment" against him as "punish[ment]... for speaking out and refusing to be discriminated against." Am. Compl. at ¶¶ 45, 55, 56, 58.
According to documents filed by the defendants, plaintiff was suspended on or about August 17, 2009, due to allegations that he had acted inappropriately toward several of his female colleagues, including that he had made unwanted physical contact with them. [Docket Entry No. 16-5].2 In a determination dated October 24, 2010, an arbitrator found plaintiff guilty of the majority of the charges, but determined that plaintiff should be returned to his position after satisfying certain preconditions. Id. Plaintiff claims that defendants "harass[ed]" him once he returned to work by instructing him to take vacation and by informing him that "mistakes were made in his vacation day calculations." Am. Compl. at | 51. He also claims that he was reassigned from the Department's Nassau County District Office to the Queens District Office for the purpose of "embarrass[ing]" him. Id. at ¶49.
The EEOC issued a "right to sue" letter on August 5, 2010. [Docket Entry No. 9].
Plaintiff commenced this action on November 5, 2010. On May 2, 2011, after defendants had served a motion to dismiss, plaintiff filed an amended complaint. Defendants once again moved to dismiss.3
The amended complaint asserts the following twelve (12) causes of action: (1) national origin discrimination and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); (2) national origin and disability discrimination in violation New York Executive Law §§ 296(l)(a) and 296(6) ("New York Human Rights Law"); (3) retaliation in violation of Title VII; (4) retaliation in violation of New York Human Rights Law § 296(7); (5) denial of equal protection under the Fourteenth Amendment of the United States Constitution; (6) denial of equal protection under the New York State Constitution; (7) retaliation for engaging in protected speech, in violation of the First Amendment of the United States Constitution and Article 1, Section 8 of the New York State Constitution; (8) denial of due process under the Fourteenth Amendment of the United States Constitution; (9) "waste [of] state resources including ... state work time and salaries of Public Officers"; (10) conspiracy to interfere with plaintiff's civil rights, in violation of 42 U.S.C. § 1985; (11) disability discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. ("ADA"); (12) age discrimination in violation of the AgeDiscrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). Am. Compl. at ¶¶ 69-120.4
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corn, v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A pleading that offers 'labels and conclusions' or 'a 'formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
In deciding a motion pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011); see also Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (). Iqbal, 129 S.Ct. at 1949. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 1950. "While a complaint need not contain detailed factual allegations, it requires more than an unadorned, the defendant-unlawfully-harmed-me accusation." Matson, 631 F.3d at 63 (internal quotation marks and citation omitted).
To continue reading
Request your trial