Buttaro v. City of N.Y., 15 CV 5703 (ILG)
| Decision Date | 15 September 2016 |
| Docket Number | 15 CV 5703 (ILG) |
| Parties | THOMAS BUTTARO, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Thomas Buttaro brings suit under 42 U.S.C. §§ 1981, 1983, 1985 and the New York City Human Rights Law (NYCHRL) against the City of New York and three members of the New York City Fire Department ("FDNY" or "Fire Department")—Commissioner Daniel Nigro, Captain Paul Washington, and Lieutenant Shawn Thomas—alleging First Amendment retaliation, selective treatment, discrimination, conspiracy, and municipal liability. Defendants have moved to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6). For the reasons given below, the motion to dismiss is GRANTED in part and DENIED in part.
1. Background*
This case arose in the wake of an employment discrimination lawsuit brought in 2007 by the Department of Justice (DOJ) challenging the FDNY's hiring practices ("DOJ lawsuit"). As a result of the DOJ lawsuit, a district court held in 2009 that the FDNY's use of two entry-level exams to screen firefighter applicants had a disparate impact on African-Americans andHispanics in violation of Title VII.1 Thus, in 2012, the district court ordered the FDNY to, among other things, implement a priority-hiring program for certain African-American and Hispanic applicants ("priority hiring").2 See Compl. ¶¶ 30-31.
The DOJ lawsuit was controversial within the Fire Department. The case originated in 2002 when a group of minority firefighters, the Vulcan Society (led by Defendant Washington, the commanding officer of a firehouse in Crown Heights), complained about the FDNY's hiring practices to the Equal Opportunity Employment Commission. See ALJ Op. at 2. The ensuing investigation led to the DOJ lawsuit, in which the Vulcan Society intervened as plaintiffs. Id. at 3; Compl. ¶¶ 7, 44. After the district court's liability rulings in 2009 and 2010, informal groups of firefighters formed to oppose the court's rulings and "race-based hiring," and to highlight "the importance of rigorous standards for becoming a Firefighter and about the need to address discrimination and reverse discrimination." Compl., ¶¶ 32-33. These groups were called "Merit Matters" and "Minorities against Dumbing Down the Department (MADD)." Id. ¶¶ 35-37, 56.
The Vulcan Society's involvement in the DOJ lawsuit and Merit Matters' opposition caused discord within the Fire Department. See ALJ Op. at 4 (); id. at 6 ().
In response, the FDNY allegedly decided to silence Merit Matters. See Compl. ¶¶ 6, 46. Thus, on December 29, 2011, the FDNY issued Order 89, providing that bulletin boards "shall be used only for official Department business or important information relating to approved Departmental organizations," and that "material presenting opinions or viewpoints is not permitted anywhere in quarters," regardless of "whether such opinions or views concern Department matters or non-Department matters." Id. ¶ 47. This order allegedly was "issued for the purpose of silencing" Merit Matters, "which was growing at the time," and "any dissenting point of view being circulated among Firefighters about" the outcome of the DOJ lawsuit and the FDNY's response to it. Id. ¶ 48. According to the Complaint, the FDNY raided firehouses "to remove Merit Matters literature" and other literature opposing the district court's order. Id. ¶ 49. Ultimately (in 2015) the FDNY disciplined Merit Matters' leader and forced him, "though threat of termination," to disband the group and shut down its website. Id. ¶ 6.
The plaintiff, Thomas Buttaro, was a white firefighter in the Crown Heights firehouse and a member of Merit Matters. In mid-2011, when Merit Matters was still active, Buttaro started to wear Merit Matters and MADD t-shirts (the "shirts") around the firehouse. He was not the only firefighter to do so; at the time, the shirts were popular among certain firefighters, and no one told Buttaro not to wear them. See id. ¶¶ 22, 38-42.
The shirts led to three confrontations with another firefighter, Thomas, a Vulcan Society board member. See ALJ Op. at 3-4; Compl. ¶¶ 50-76. First, on May 6, 2012, Buttaro was wearing a MADD shirt on-duty in the firehouse and overheard Thomas say that he had not been assigned to the FDNY's special operations unit because of his race. Buttaro interjected, denying that race played a role in personnel decisions and suggesting "sarcastically" that "Thomas was not getting the assignment because he was a 'whiny c***.'" Compl. ¶¶ 50-53. Offended,Thomas told Buttaro to remove his MADD shirt. Id. ¶ 54. Initially Buttaro refused, but later, at his supervisor's request, he changed into a Merit Matters shirt. Id. ¶ 55; see also ALJ Op. at 6-8.
Second, on May 16, 2012, Thomas saw Buttaro give a Merit Matters shirt to a civilian whom Buttaro had invited to the firehouse. Thomas told the civilian to remove the shirt. Buttaro objected, noting the civilian's right to wear the shirt, but the civilian followed Thomas's order. See id. at 9; Compl. ¶¶ 58-61.
Third, on May 21, 2012, Buttaro attended a class administered by the FDNY's Equal Employment Opportunity (EEO) office. He "intended to raise a question about whether a Firefighter had a right to object to the wearing of t-shirts." Compl. ¶ 64. But Thomas was present as an instructor "and proceeded to goad Buttaro." Id. ¶ 65. Thus, Buttaro objected to Thomas's presence, noting their prior conflicts and that Thomas was "goading" him. Id. ¶ 66. The class then continued without incident. Id. ¶¶ 68-69. The next morning, however, Thomas orally complained to the EEO office "about the events earlier that month," though four days later he withdrew that complaint. Id. ¶¶ 70, 72.
"Around this time, Washington gave an order at roll call that Merit Matters and MADD t-shirts could not be worn in the firehouse because they could cause dissension." ALJ Op. at 11. Thomas and other "black firefighters had expressed concerns about the [Merit Matters and MADD] shirts." Id. at 6; see also id. at 13. On May 30, 2012, the FDNY issued Order 37, "remind[ing]" firefighters "that only official work duty uniforms issued by the Quartermaster may be worn when on-duty." Id. at 12.
Buttaro nevertheless believed that he had a right to wear the shirts and continued wearing them. Compl. ¶ 74. He claims this belief was confirmed in August 2012 when an attorney from the FDNY's EEO office told another firefighter that "it was permissible to wear a non-Department t-shirt, such as the Merit Matters or MADD t-shirts, in the firehouse while a Firefighter was off duty." Id. ¶ 76.
On June 14, 2012, the FDNY issued Supplemental Order 32, which described the department's policy against retaliation:
[E]mployee[s] [are prohibited] from retaliating against individuals who have filed (or who are believed to have filed) a complaint with the Fire Department's EEO Office or who have participated in any way in any internal EEO investigation or any federal or state lawsuit or administrative action concerning discrimination or EEO matters. No one who objects to prohibited harassment, discrimination, or conduct, makes a good faith complaint, or assists in an investigation will be subjected to punishment, coercion, intimidation or retaliation. . . . Any employee who engages in retaliation will be disciplined.
Two weeks later, on June 28, 2012, the FDNY issued Supplemental Order 35, which addressed the DOJ lawsuit:
[W]hile there are many different viewpoints on the [DOJ] litigation and the multiple issues it presents, . . . behavior that disrupts or is likely to disrupt FDNY operations will not be tolerated. Nor will we condone any act of retaliation against anyone who is party to or part of the DOJ/Vulcans case, or who interacts with our EEO office. We recently reinforced [in Orders 37 and 89] the importance of strictly complying with Department rules and regulations pertaining to wearing only Department-issued clothing in the firehouse, and prohibiting the posting of anything other than Department-issued material on firehouse bulletin boards and walls. We will strictly enforce all of these rules and anyone who violates them will be subject to Departmental discipline.
Meanwhile, the DOJ lawsuit continued. After the district court's 2009 and 2010 liability findings, in 2012, the case entered the remedy stage. The district court issued a proposed remedial order, which included an order to implement priority hiring, and on October 1, 2012, held a fairness hearing "so that nonparties potentially affected by the Proposed Relief Order[including applicants and current firefighters] could voice their concerns about the proposed relief." United States v. City of New York, 905 F. Supp. 2d 438, 441 (E.D.N.Y. 2012).
At the hearing, Buttaro spoke in opposition to priority hiring:
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