Cherry v., 15-CV-6949 (MKB)
| Decision Date | 29 September 2017 |
| Docket Number | 15-CV-6949 (MKB) |
| Parties | IVAN L. CHERRY, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, BOB AGBAI, FATIMA TURNER and MARIE BAZELAIS, Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
Plaintiff Ivan L. Cherry, proceeding pro se, commenced this action on December 3, 2015, against Defendants the New York City Housing Authority ("NYCHA"), Bob Agbai, Fatima Turner and Marie Bazelais. (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on March 3, 2016, asserting claims of discrimination, retaliation and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act (the "ADEA"),1 New York State Human Rights Law (the "NYSHRL"), and New York City Human Rights Law (the"NYCHRL"). (Am. Compl. 3.)2 Plaintiff also brings claims under 42 U.S.C. § 1983 alleging that he was deprived of his Fourteenth Amendment due process rights. (Id.) Defendant NYCHA3 moves to dismiss the Amended Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Def. Mot. to Dismiss ("Def. Mot."), Docket Entry No. 21; Def. Mem. in Supp. of Def. Mot. ("Def. Mem."), Docket Entry No. 22.) For the reasons discussed below, the Court grants NYCHA's motion in part and denies it in part.
The facts alleged in the Amended Complaint are assumed to be true for the purpose of deciding this motion.4 Plaintiff identifies himself as a "black African[-] American" male over the age of forty. (Am. Compl. 3, 11.) From October 25, 2010, the day he was hired by NYCHA at the Unity Plaza office as a "Secretary Level III," through September 26, 2014, the date NYCHA terminated his employment, Plaintiff alleges that he was subjected to discriminatory treatment based on his national origin, race, color, gender and age. (Id. at 3, 6-7.) Plaintiff was the only male secretary in the Unity Plaza office and was the only black male secretary in his hiring poolthroughout NYCHA. (Id. at 7.) Plaintiff was hired pursuant to the resolution of a lawsuit that required NYCHA to terminate provisional employees and hire candidates like Plaintiff from the civil service list. (Id.) Plaintiff experienced "considerable hostility" at the Unity Plaza office because he replaced an eight-year provisional secretary and it was "immediately made clear to [him] that a black male secretary was not welcome or wanted in the office." (Id.)
Plaintiff's office lacked a window and air conditioning, while female and non-black secretaries had both air conditioning and windows. (Id. at 7.) Because Plaintiff suffers from asthma and chronic obstructive pulmonary disease, the lack of air conditioning and windows made it difficult for Plaintiff to breathe. (Id.) Plaintiff's repeated requests for air conditioning were denied, but the day after Plaintiff left his office, an air conditioner was installed in the office. (Id.)
Throughout the course of Plaintiff's employment, various managers yelled at him without justification, falsely accused him of physical violence and labelled him belligerent, irate, crazy and out of control. (Id. at 8-12, 14.) Defendant Agbai, a housing assistant at Unity Plaza who is "a black person from another country," stereotyped American Blacks and portrayed Plaintiff as "angry and irrational, creating a picture of [Plaintiff] as an angry violent black man in order to try to drive [him] out or get [him] fired." (Id. at 8, 10-11.) The words used to describe Plaintiff were "tainted by stereotypical and racist manufactured rhetoric."5 (Id. at 16.)
Plaintiff received "negative performance evaluations and misconduct memos," (id. at 11),and "was repeatedly written up for trivial incidents, which were often twisted or fabricated," (id. at 16). Non-party Diana Harvey, whom Plaintiff describes as a "former housing assistant," "wrote [Plaintiff] up" for leaving his desk unattended even though he did so because no one would cover his desk, and for walking an unannounced tenant to Harvey's office when Harvey failed to answer her telephone. (Id. at 9, 11-12.) Harvey also filed a police report falsely accusing Plaintiff of physical violence after Harvey disciplined Plaintiff for his interaction with a tenant, and placed the report in Plaintiff's "personal folder." (Id. at 8-9, 11.)
According to Plaintiff, Defendant Bazelais, who is a Haitian woman and was Plaintiff's manager at Unity Plaza as of January of 2012, "set the tone of bullying, harassment and humiliation against" him. (Id. at 10.) Bazelais told Plaintiff on several occasions "that [he] was not suited for the job because 'this is a woman's job'" and, as a man, "[he] could not do a woman's job as well as a woman." (Id. at 9; Pl. Opp'n to Def. Mot. ("Pl. Opp'n") 10, Docket Entry No. 20.)6 She also compared Plaintiff to the female secretary he had replaced and told Plaintiff that the female secretary could complete the work "twice as good as [Plaintiff]." (Pl. Opp'n 4.) She regularly told him that he did not "belong" in the office and on "other occasions" she said that he should "apply for another job" because "this is a woman's job" and "this is not the job for" Plaintiff. (Id. at 11.) Plaintiff also overheard Bazelais state that "American Black people" are lazy and do not want to work. (Am. Compl. 9.)
In addition to Plaintiff's normal workload, Bazelais assigned Plaintiff work that should have been performed by housing assistants, not secretaries, and the female secretaries were not required to perform any such additional work. (Pl. Opp'n 14-15.) Because of thenon-secretarial work assignments, Plaintiff was frequently required to work overtime and was reprimanded for failing to complete his secretarial duties. (Id. at 15; Am. Compl. 10, 17-18.) Bazelais also refused to authorize Plaintiff's overtime pay for the additional time Plaintiff had to spend working because of the non-secretarial work assignments. (Pl. Opp'n 15; Am. Compl. 10, 17-18.) Plaintiff believes that Bazelais overloaded him with work so that she could portray him as "incapable of doing [his] job." (Am. Compl. 18.) Bazelais also "completely ignored" Plaintiff's request to have an air conditioner placed in his office and she twice removed Plaintiff's "work order ticket" that he submitted to have someone from NYCHA put an air conditioner in his office. (Id. at 9; Pl. Opp'n 9.)
Near the end of April of 2013, Defendant Turner, a housing assistant, slammed a door "in [Plaintiff's] face" on three separate occasions. (Pl. Opp'n 18.) Plaintiff complained about the incident to Bazelais who told him that Turner was "more important" than he was and if he "didn't like it," then he would have to quit. (Id. at 18-19.) After complaining to Bazelais, Plaintiff went to his desk and started filling out an EEOC complaint about the ongoing harassment by Bazelais, Turner and Harvey. (Id. at 19.) Bazelais followed Plaintiff to his office, saw him working on the complaint and told him, "I see what you're doing, and I know what I can do." (Pl. Opp'n 18-19.) Plaintiff completed and filed the EEOC charge, alleging retaliation and discrimination based on his race, sex, national origin and color (the "April 2013 Charge"). (Pl. Opp'n 20; EEOC Docs. at 11-14, Docket Entry No. 14-1.) Plaintiff alleges that this incident motivated Bazelais as well as Turner to begin to levy false accusations of violence against him so that NYCHA would terminate his employment because "they could not provoke [him] to violence or to quit [his] job." (Pl. Opp'n 19.) Several days later, on May 1, 2013, Bazelais accused Plaintiff of engaging "in verbal and physical expressions of hostility" and using"abusive or offensive language or gestures" toward her. (NYCHA Letter dated Jan. 16, 2014 at 255-57, Docket Entry No. 14-4.)
On or around July 9, 2013, Plaintiff asked Defendant Agbai, whose office was adjacent to Plaintiff's, if he could open Agbai's office door to help cool Plaintiff's office since Plaintiff lacked air conditioning. (Am. Compl. at 21.) Although Agbai agreed, when Plaintiff opened the door, Defendant Turner, "yelled from her office" that Agbai needed to close the door because Agbai's air conditioning was not working properly. (Id. at 8, 21-22.) Turner closed Agbai's door. (Id. at 22.) Plaintiff immediately called the NYCHA Borough Office about the conflict with Turner because he was concerned that the conflict would escalate. (Id.) When someone arrived from the Borough Office, that individual told Plaintiff that because Plaintiff threatened to punch Turner in the face, Plaintiff would be suspended for workplace violence. (Id. at 23.)
On July 12, 2013, NYCHA suspended Plaintiff for approximately one month. (Letter from NYCHA to Plaintiff dated July 12, 2013, Docket Entry No. 14-4; Pl. Opp'n 22.)
On or about August 12, 2013,7 Plaintiff returned to work after his suspension and was transferred to Garvey-Prospect Plaza. (Pl. Opp'n 19.) Regina Chu, Plaintiff's new manager, "had heard about what happened at Unity Plaza and was treating [Plaintiff] the same way or even worse." (Am. Compl. 18; Pl. Opp'n 19.) Chu "humiliated [Plaintiff] by holding town-hall type meetings" with the office staff to discuss Plaintiff's leave and medical issues, including Plaintiff's auto-immune disease and significant bone injuries. (Am. Compl. 18; Pl. Opp'n 19.)Chu "raised unfounded allegations of sexual harassment in an attempt to get [Plaintiff] arrested or terminated." (Pl. Opp'n 19.) On one occasion when Plaintiff was sick, Chu refused to answer Plaintiff's call despite his numerous attempts to reach her by phone and recorded Plaintiff as being absent from work without excuse. (Am. Compl. 18-19; Pl....
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