Hunt v. Consol. Edison Co. of N.Y.
| Decision Date | 07 August 2021 |
| Docket Number | 18-CV-7262 (MKB) |
| Parties | ERIC HUNT, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
Plaintiff Eric Hunt commenced the above-captioned action on December 20, 2018, against his employer, Defendant Consolidated Edison Company of New York, Inc., pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the “NYSHRL”), the New York City Human Rights Law N.Y.C. Admin Code § 8-101 et seq. (the “NYCHRL”), and 42 U.S.C. § 1981.[1] (Compl., Docket Entry No. 1.) On April 5 2019, Plaintiff filed an Amended Complaint with the same claims. (Am. Compl., Docket Entry No. 12.) On December 5 2019, Plaintiff filed a Second Amended Complaint (“SAC”). (SAC, Docket Entry No. 23.) Plaintiff alleged that Defendant discriminated against him based on his race by preventing him from applying for or obtaining a promotion, and retaliated against him by failing to promote him after he complained of discrimination. (SAC ¶¶ 65-106.)
Defendant moved to dismiss the SAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, as time-barred, and as barred by res judicata.[2] On September 25, 2020, the Court heard argument, dismissed the SAC in part as time-barred and barred by res judicata, and otherwise reserved decision as to Plaintiff's remaining failure to promote and retaliation claims that were not disposed of at the hearing. (Min. Entry dated Sept. 25, 2020.) For the reasons set forth below, the Court grants in part and denies in part Defendant's motion to dismiss.
The Court assumes the truth of the factual allegations in the SAC for purposes of this Memorandum and Order. The Court also assumes familiarity with the facts of the case as set forth in Hunt I and provides on a summary of the relevant facts.
Defendant hired Plaintiff, an African-American man, as a mechanic in 1985, and promoted him to Lead Mechanic in 2001. (SAC ¶¶ 14-16.) Plaintiff alleges that Defendant has failed to promote him to a managerial or supervisory position.[3] (Id. ¶ 18.)
Plaintiff contends that Defendant's employees are “normally” promoted when sponsored by a supervisor who “initiate[s] the promotion process” within a given department. (Id. ¶ 38.) Because “upper management often interfere[s] in this process, minority employees such as [Plaintiff] are usually not selected for sponsorship.” (Id.) Employees can also apply to posted positions in other departments. (Id. ¶ 39.) However, minority employees are “often prohibited . . . from actually applying” due to “frivolous disciplinary actions” that can “cause an employee to be prohibited from advancement for up to one year, ” and then are “maintained on an employee's permanent record, . . . tarnishing that employee's record and chances of selection for promotion.” (Id.) To the best of Plaintiff's knowledge, Defendant has promoted no African-American mechanics to management since Plaintiff began his employment in 1985. (Id. ¶¶ 14, 40.) “[T]he majority of the minority employees” of Defendant have been “passed over in the process of title advancement” and “multiple minority employees” have performed the duties of a more senior position than their title reflected before leaving “in search of career advancement opportunities.” (Id. ¶ 32.) Instead of promoting African-American employees to management and supervisory positions, Defendant has promoted “less-experienced and less-senior Caucasian mechanics.” (Id. ¶¶ 32-33.)
Plaintiff is the most senior employee in his department and has trained ten of eleven employees who were promoted to managerial positions between 2012 and 2016.[4] (Id. ¶¶ 37, 42.) Those employees have come to him for advice on “multiple occasions” because he has experience that they do not. (Id. ¶¶ 36-37, 42.) “[Y]ear after year, ” Defendant has issued Plaintiff “multiple unwarranted citations” that have had the effect of barring him from applying for a supervisor position. (Id. ¶¶ 43-44, 64.) “At the end of each probationary period, Defendant frivolously disciplines [Plaintiff] in order to circumvent promoting him ....” (Id. ¶ 44.) As of the date the SAC was filed, Defendant was continuing this practice. (Id. ¶ 64.)
In February of 2012, Plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging race discrimination. (Id. ¶ 45.) Plaintiff contends that before filing the EEOC charge, he had “passed all examinations and received positive performance reviews.” (Id.) Defendant then “commenced a campaign of frequent accusations of performance deficiencies . . ., unwarranted disciplinary citations[, ] and suspensions leading to probationary periods.”[5] (Id. ¶ 46.)
In 2015, Defendant adopted National Gas Association (“NGA”) guidelines for testing and certification. (Id. ¶ 47.) At that time, Plaintiff and two other employees in the company obtained the certification, and although more employees obtained their certification “[a]t a later date, ” only Plaintiff and one other employee were qualified “to perform gas tests in the United States.” (Id.) The NGA gave Plaintiff a certification card, but “Defendant refused to acknowledge [the] card and forced the [NGA] to fax a second confirmation before recognizing his accomplishment.” (Id.) This “unwarranted” delay harmed Plaintiff because “certification is directly related to [his] qualifications and financial compensation.” (Id.)
In January of 2016, Plaintiff's group - including “two shop stewards who vigorously protected workers' rights” - was transferred to a “problematic” department. (Id. ¶ 48.) An unnamed employee told Plaintiff, (Id.) In 2016, Plaintiff was subjected to “short-changed paychecks, time sheet destruction, and overtime denial without explanation, ” which provided “grounds to issue [Plaintiff] frivolous disciplinary citations” and place him on probation. (Id. ¶ 49.) Plaintiff alleges that these acts were in retaliation for filing the 2012 EEOC charge. (Id.)
In August of 2016, Plaintiff filed a pro se action against Defendant, alleging employment discrimination. (Id. ¶ 50.)
In December of 2016, Defendant assigned Plaintiff to complete a two-day Operator Qualification test, which consisted of a day-long Construction examination and a day-long Gas Distribution Services examination. (Id.) “Contrary to policy, ” Defendant gave Plaintiff only one week to study, then switched the topic of the first day's examination from Construction to Gas Distribution Services without warning. (Id. ¶¶ 51-52.) Plaintiff failed the Gas Distribution Services examination. (Id. ¶ 53.) Despite Defendant's policy to the contrary, the proctor did not halt the examination after Plaintiff failed a “[c]rucial [i]tem” and did not review the examination with Plaintiff. (Id.) The next day, Plaintiff took the Construction examination with a different proctor and passed. (Id. ¶ 54.) The proctor “attempted to review the Gas Distribution Services exam[ination] [with Plaintiff] but discovered that [the previous proctor] failed to upload the required documentation.” (Id.) On December 18, 2016, Defendant assigned Plaintiff to Construction remediation training even though he passed that examination. (Id. ¶ 55.) Plaintiff alleges that the assignment was an “attempt[] to portray [him] as an unqualified employee based upon [Defendant's] racial and retaliatory animus.” (Id.)
In February of 2017, Plaintiff was given a new examination administered by the NGA. (Id. ¶ 56.) Of the thirty-five sections Plaintiff completed, he failed five non-critical sections.[6](Id.) Defendant did not give Plaintiff an opportunity to retake a practical exam, unlike other employees of unspecified race, and told Plaintiff that testing was “halted until further notice.” (Id.) On February 17, 2017, Defendant transferred Plaintiff to Gas Distribution Services remediation, where he had to “undergo inapplicable training with [more junior employees], all of whom [he] trained, ” rather than complete “relevant” remedial work. (Id. ¶ 57.) Plaintiff waited longer than the typical “one to two weeks” for remediation and was denied “overtime training to assist a mechanical trainer” in the meantime, “in furtherance of [Defendant's] discriminatory and retaliatory animus.” (Id. ¶ 58.) On March 20, 2017 Plaintiff was “finally” assigned to proper remediation instruction. (Id. ¶ 59.) In March of 2017, another proctor discovered that eight of Plaintiff's eleven examination records had been “purged” from the system and that the proctor who had administered those examinations failed to maintain notes in violation of Defendant's policy. (Id. ¶ 60.) Plaintiff contends that “[d]ue to Defendant's arbitrary testing practices of failing anyone at their discretion, ” he “was required to take” computerized examinations administered by a third party that covered the same subject areas as Defendant's examinations. (Id. ¶ 61.) The computerized examinations were facilitated by the NGA, not by Defendant, so Defendant could not “manipulat[e] the testing protocol.” (Id.) Although supervisors who worked for Defendant used the results of the computerized examinations “to determine [Plaintiff's] actual field qualifications when his Operator Qualification test results were unavailable for review due to Defendant's intentional deletion of the information, ” the results “entirely...
To continue reading
Request your trial