Isbell v. City of N.Y., 15–CV–8314 (VSB)

• Decision Date: 25 May 2018
• Docket Number: 15–CV–8314 (VSB)
• Citation: 316 F.Supp.3d 571
• Parties: Mykel ISBELL, Deborah Pickett, and Cathleen Norman–Delgado, Plaintiffs, v. The CITY OF NEW YORK and Patricia Le Goff, in her official and individual capacities, Defendants.
• Court: U.S. District Court — Southern District of New York

316 F.Supp.3d 571

Mykel ISBELL, Deborah Pickett, and Cathleen Norman–Delgado, Plaintiffs,

v.The CITY OF NEW YORK and Patricia Le Goff, in her official and individual capacities, Defendants.

15–CV–8314 (VSB)

United States District Court, S.D. New York.

Signed May 25, 2018

Michael Taubenfeld, Serrins & Associates LLC, New York, New York, Liane Fisher, Fisher Taubenfeld LLP, New York, New York, Counsel for Plaintiffs

Shira M. Blank, Tomasz Pacholec, New York City Law Department, New York, New York, Counsel for Defendants

OPINION & ORDER

VERNON S. BRODERICK, United States District Judge

Plaintiffs Mykel Isbell, Deborah Pickett, and Cathleen Norman–Delgado ("Plaintiffs") bring this action alleging differential pay on the basis of their gender in violation of the Fair Labor Standards Act (the "Equal Pay Act"), as amended, 29 U.S.C. § 206(d) and the New York Labor Law, (the "New York Equal Pay Act"), N.Y. Labor Law § 194, against the City of New York and Patricia Le Goff ("Defendants"); and discrimination on the basis of sex and race, including by creating a hostile work environment, and retaliatory conduct in violation of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290, et seq. , and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8–101, et seq. against all Defendants, as well as in violation of 42 U.S.C § 1981(a) and 42 U.S.C. § 1983 against Defendant Le Goff. Before me is Defendants' motion to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.

I. Background ¹

Plaintiffs are all African American women who, for nearly the entire period of time relevant to the Amended Complaint, worked as Associate Investigators in the Equal Employment Opportunity ("EEO") Department of the New York City Department of Corrections ("DOC"). (Am. Compl. ¶¶ 17–21.)² Plaintiff Isbell began working for the DOC on August 30, 2004 and transferred to the EEO Department in 2010; Plaintiff Pickett began working in the EEO Department of the DOC in March 2007; and Plaintiff Norman–Delgado began working in the EEO Department of the DOC in February 2007. (Id. ¶¶ 18–20.) For most of the relevant time period, Plaintiffs worked with only one other Associate Investigator: Dennis Wall, a white Caucasian man, who began working in the EEO Department in 2012. (Id. ¶¶ 22–23.) Plaintiffs do not allege when Wall began working for the DOC, but do state that he was an Associate Investigator in the EEO Department from 2012 until July 2015, when he was transferred to a different department. (Id. ¶ 23.) "Plaintiffs and Mr. Wall performed work of equal skill, effort, and responsibility and virtually identical duties ...." (Id. ¶ 24.) Such work included: investigating sensitive charges of discriminatory employment practices; performing site visits to interview knowledgeable parties, including charging parties' witnesses and respondents in response to discrimination charges; and preparing, reviewing, summarizing, and evaluating relevant information in investigation reports. (Id. ) Defendant Le Goff supervised Plaintiffs and Wall. (Id. ¶ 25.)

From September 2012 through August 2014, Plaintiffs earned an annual salary of $49,528, which in September 2014 was increased to approximately $51,000. (Id. ¶¶ 27–28.) In 2011, Wall earned an annual salary of $71,340, and received raises in subsequent years. (Id. ¶¶ 29–30.) In addition to the salary disparity, during the relevant time period, Plaintiffs also allege various "[i]nstances of discriminatory harassment" and "racial animus" exhibited by Defendant Le Goff, most of which they allege without any specificity, including that she:

• heavily scrutinized and unjustifiably criticized Plaintiffs' work and criticized them when they made work-related suggestions, (id. ¶¶ 36, 38, 54);

• made Plaintiffs attend corrective interviews with her assistant, (id. ¶ 54);

• baselessly disciplined Plaintiffs because of supposedly inadequate work product, including by "writing up" Plaintiffs for "imagined or exaggerated infractions," (id. ¶¶ 36, 38, 52);

• criticized Plaintiff Isbell for taking a day off for medical reasons, even though she had complied with the DOC's notice requirements, (id. ¶¶ 38, 53);

• refused to authorize overtime work while simultaneously criticizing Plaintiffs' inability to meet deadlines, (id. ¶ 36);

• replaced African American employees with employees of other races, (id. ¶¶ 36, 38–43, 46–47);

• refrained from communicating with African American employees, except through her assistant or deputy director, (id. ¶¶ 36, 38, 49–50);

• denied Plaintiffs' requests to use DOC vehicles to perform site visits and when she granted their requests, required them to fill up the car with gasoline, (id. ¶¶ 36, 38, 57);

• on one occasion in 2014, delayed Plaintiff Norman–Delgado's use of a DOC vehicle while confirming that she was approved, even though she had been approved to use the vehicle since 2007, (id. ¶¶ 38, 59);

• criticized Plaintiffs for taking longer with their investigations when Le Goff's refusal to allow Plaintiffs to use a DOC vehicle caused the delays, (id. ¶ 60);

• attempted to transfer Plaintiff Pickett to a different DOC department without her knowledge, (id. ¶ 36); and

• used a "harsh and sarcastic tone," which she did not do when communicating with Wall, her non-African American deputy director, or other non-African American members of her staff (id. ¶¶ 36, 51, 63).

Generally, Plaintiffs allege that Defendant Le Goff treated Wall "more favorably." (Id. ¶¶ 37, 55, 61.) For example, in 2014 and 2015, Le Goff "freely" permitted Wall to use a DOC vehicle to perform his investigations. (Id. ¶ 56.) Additionally, Le Goff was more responsive to Wall's suggestions and, after Wall advised her that a training program was not useful, denied Plaintiffs permission to attend that training program. (Id. ¶ 62.)

Plaintiffs also allege that Defendant Le Goff transferred them for discriminatory reasons and in a discriminatory fashion and that Le Goff confided to the EEO counsel in 2011 that "she wished to replace her predominantly African American staff." (Id. ¶ 39.) Plaintiffs allege that Le Goff replaced African American employees in the EEO Department, "largely with non-African American employees." (Id. ¶ 40.) Specifically, Defendants transferred Plaintiff Isbell to a different unit in June 2015 and, after previously attempting unsuccessfully to transfer Plaintiff Pickett in 2014, transferred Plaintiffs Norman–Delgado and Pickett to different units in February 2016. (Id. ¶¶ 41–42, 48.) In late 2014, Le Goff also replaced another African–American woman, the Deputy Director of the EEO Department, with a non-African American woman. (Id. ¶¶ 46–47.) Unlike with Plaintiffs, Defendant Le Goff transferred Wall only after he requested a transfer, and Wall received a raise after being transferred. (Id. ¶¶ 43–45.)

Additionally, Plaintiffs allege retaliatory conduct in response to Plaintiffs' reports and complaints. (Id. ¶ 65.) Plaintiffs' numerous complaints include that: (1) Plaintiffs complained to Defendant Le Goff "[o]n a number of occasions"; (2) Plaintiff Isbell complained in December 2014 to R. Fenimore Fisher, the Deputy Commissioner, Citywide Chief Diversity & EEO Officer at the Department of Citywide Administrative Services (the "DCAS"); (3) Plaintiffs, around December 2014, reported Defendant Le Goff's conduct to the District Council 37 Union, and the Union initiated a grievance as a result; and (4) Plaintiffs separately filed complaints with the New York State Division of Human Rights ("NYSDHR"), alleging unlawful pay disparities, hostile work environment, and disparate treatment. (Id. ¶¶ 66–69.) In particular, Plaintiff Isbell filed NYSDHR complaints on November 14, 2014, February 26, 2015, and March 18, 2015; and Plaintiffs Norman–Delgado and Pickett filed NYSDHR complaints on or about March 18, 2015. (Id. ¶¶ 70–71.) Plaintiffs further informed Defendants on July 5, 2015 that they had retained an attorney to bring a lawsuit for discrimination and retaliation. (Id. ¶ 74.) Plaintiffs allege that as a result of their complaints, Defendants transferred Plaintiff Isbell to a "different and less prestigious unit" in 2015 and, after Plaintiffs notified Defendants of their intent to file a lawsuit, Defendant Le Goff, through her assistant, began to harshly criticize the work of Plaintiffs Norman–Delgado and Pickett and gave them "corrective interviews" on or about August 2015. (Id. ¶¶ 73, 75–76.) Plaintiff Pickett complained to Fisher on December 30, 2015, which resulted in a DCAS investigation that included an interview of Plaintiff Norman–Delgado. (Id. ¶¶ 77–79.) On February 5, 2016, "Defendants, upon information and belief at Defendant Le Goff's behest," transferred Plaintiffs Norman–Delgado and Pickett to a "less prestigious unit." (Id. ¶ 80.)

II. Procedural History

Plaintiffs commenced this case by filing their Complaint on October 21, 2015, alleging numerous claims related to their employment at the DOC. (Doc. 1.) After I granted Defendants' request for an extension of time to respond to the Complaint on November 24, 2015, (Doc. 10), on January 6, 2016, Defendants filed a pre-motion letter in anticipation of filing a motion to dismiss under Rule 12(b)(6), (Doc. 11). On January 11, 2016, Plaintiffs responded by simply noting that they intended to amend the Complaint as of right, (Doc. 12), and on January 19, 2016, I granted Defendants' request for a pre-motion conference and requested that Defendants submit a letter stating their position with respect to Plaintiffs' intended amendment, (Doc. 13). In response to my order, on January 21, 2016, Defendants submitted a letter indicating that they did not consent to the proposed amendment absent first reviewing the proposed pleading. (Doc. 14.) I subsequently set a pre-motion conference for February 4, 2016, (see Doc. 15),...