Pressley v. City of N.Y.
| Decision Date | 11 January 2013 |
| Docket Number | 11-CV-3234 (SLT) (RER) |
| Parties | MELISSA PRESSLEY, Plaintiff, v. THE CITY OF NEW YORK; MICHAEL CARDOZO; GEORGIA PESTANA; KENNETH MAJERUS; STUART SMITH, MURIEL GOODE-TRUFANT; FAY LEOUSSIS; MARCK PALOMINO; JUDITH DAVIDOW; MARC ANDES; ELIZABETH GALLAY; INGA VAN EYSDEN; ERIC RUNDBAKEN; RITA D. DUMAIN; GAIL RUBIM, GABRIEL TAUSSIG; and FOSTER MILLS, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On June 29, 2011, Plaintiff Melissa Pressley, an attorney and former corporation counsel acting pro se, filed this action alleging employment discrimination and retaliation against the City of New York (the "City"), and sixteen individual city employees, (collectively, "Defendants"). Plaintiff asserts violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq.: violations of her constitutional rights under the First, Fourth, and Fourteenth Amendments, pursuant to 42 U.S.C. §§ 1983, 1985(1)-(3); and unspecified state law claims. Defendants now move for partial dismissal of the second amended complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the reasons set forth below, Defendants' motion is granted in part and denied in part.
The following facts are drawn from Plaintiff's second amended complaint (Docket No. 21 ("SAC")) and are assumed to be true solely for purposes of this decision.
On March 1, 2004, Plaintiff, an African-American woman, began her legal career as the only non-white attorney within the Torts Division Special Litigation Unit ("SLU") at the Office of Corporation Counsel of the City of New York. (SAC ¶¶ 2, 6, 7). SLU "litigated the City's high media-exposure, high-damages, and catastrophic personal injury cases" and "represented the City in both state and federal court, managed complex litigation . . . and litigated admiralty law and toxic tort actions." (SAC ¶¶ 11, 13). Plaintiff performed her duties competently, "achieving] noteworthy results" in these legal areas, but was constructively terminated by the City in November 2007. (SAC ¶¶ 7, 8, 14). During her tenure at SLU, Plaintiff experienced unequal and unfair treatment in training, career development, advancement opportunities, compensation, and working conditions because of her race and for complaining of the treatment she and other racial minorities experienced. (SAC ¶ 15). SLU Chief Mark Palomino was Plaintiff's supervisor and caused Plaintiff to suffer this type of unequal treatment by "unfairly favoring white attorneys" in these areas, by his own conduct toward Plaintiff, and by "permitting mistreatment... by supervisory staff." (SAC ¶ 16).
Two black female attorneys, "Karlyne and Suzanne," were assigned to SLU before Plaintiff arrived, "but left because of unfavorable experiences" similar to those of Plaintiff and were reassigned to other units without raises or promotions. (SAC ¶¶ 17, 18). At some point after Plaintiff began work at SLU, two other black female attorneys, "Natasha and Judith," were also reassigned to other Torts Division units without raises or promotions, having experiencedsimilar unfair working conditions. (SAC ¶ 19). Only white attorneys received promotions and pay raises when they transferred to other units. (SAC ¶ 20). Torts Division Chief Fay Leoussis encouraged these conditions to continue by "ignoring, discrediting, or invalidating" concerns brought by Plaintiff and other black attorneys at SLU and by openly siding with those who acted wrongfully. (SAC ¶ 22). The City "denied Plaintiff an equal opportunity to transfer to corporate legal divisions," which harmed her professional development. (SAC ¶23). Instead, City officials sought to have Plaintiff transfer to other units with a greater share of black attorneys or in areas of law involving "street offenses ...[,] deliberately block[ing] opportunities in coveted areas of corporate law." (SAC ¶ 24). The City generally took this approach to racial minorities, recruiting them to boost diversity statistics, but then keeping the prestigious corporate units "overwhelmingly, if not exclusively, assigned to white attorneys." (SAC ¶ 29). During Plaintiff's tenure at SLU, there were "no racial minority supervisors or senior counsel." (SAC ¶ 30). Despite Plaintiff's success in her position, she was repeatedly told that she was not ready for SLU and it had been a mistake to assign her there. (SAC ¶ 25). Palomino attempted within the first three months of Plaintiff's arrival at SLU to transfer her to the Brooklyn or Bronx unit, which "contained the greatest concentration of black attorneys." (SAC ¶¶ 26, 27). As a result of these unfair practices, Plaintiff operated under greater pressure "to be perfect" compared to white attorneys. (SAC ¶ 28).
To discourage black employees from complaining of racist treatment, the City "instilled the fear of retaliation." (SAC ¶ 32). The City "proudly displayed" its retaliatory conduct victories over complainants to "discourage these complaints or expressions of opinions." (SAC¶ 33).
From December 2004 until her departure in November 2007, Plaintiff communicated with head Equal Employment Opportunity Commission ("EEOC") officer Muriel Goode-Trufant, who conducted the investigation of Plaintiff s complaint. (SAC ¶ 34). It was a pattern or practice that when a black attorney met with an EEOC officer to complain, her career as a City employee would be "harmed or destroyed." (SAC ¶ 35).
In September 2004, Plaintiff refused the demands of her immediate supervisor, Judith Davidow, to report to work on her Sabbath, a Sunday. (SAC ¶ 36). Nevertheless, Plaintiff completed her assignment timely and successfully. (SAC ¶ 38). A couple of days after this incident, Davidow for the first time criticized Plaintiff's work arrival times. (SAC ¶ 39). In Plaintiff's 2004 evaluation, Davidow and Palomino "included unfair, untrue comments or ratings, and criticism that implicated" the Sunday incident. (SAC ¶ 40). Meanwhile, Leoussis attempted to convince Plaintiff that she was not a good attorney, promoted untrue criticisms about her, and invalidated her concerns. (SAC ¶ 42). As Plaintiff's work conditions deteriorated, she spoke more with Goode-Trufant. (SAC ¶ 43). Her managers and supervisors promoted negative racial stereotypes to aid in the unlawful discrimination, "portraying Plaintiff as angry, irresponsible, and as someone who could not get along with anyone." (SAC ¶ 44). Her repeated requests for transfer from February 2005 through August 2007 were denied. (SAC ¶ 45). For example, despite her qualifications in the area, the City refused to transfer Plaintiff to the Pensions Division, while it encouraged such transfers for other attorneys who were "white and Jewish." (SAC ¶ 47). Foster Mills, the managing attorney responsible for administrating the annual department-wide transfer program, "violated established procedure in denying Plaintiff's transfers" and "deliberately used his position to interfere with . .. [her] rights or benefits ... in a concerted effort to end [her] career at the City." (SAC ¶ 50), In October 2007, Plaintiff was granted and appeared for interviews with the chiefs of five divisions, all of whom are named as defendants, and none offered her a transfer "because of her history and status as an EEO complainant, observance of her Sabbath, and/or her race." (SAC ¶ 51) . In particular, Georgia Pestana, Chief of Labor & Employment Law, used terms like "aggressive" and "over confidence" to justify the denial of Plaintiff s transfer request. (SAC ¶ 52).
Stuart Smith, Director of Attorney Recruitment and Retention, discussed with Plaintiff and other black attorneys their struggles and concerns, presenting himself as an ally. (SAC ¶ 54). Smith and Pestana served on the City's Diversity Committee that heard statements regarding unequal treatment in 2005 from several black female attorneys, including Plaintiff. (SAC ¶ 55).
After Plaintiff began communicating with Goode-Trufant in December 2004, her second immediate supervisor, Marc Andes, became verbally abusive toward her, subjecting her to harsher treatment than the white attorneys. (SAC ¶ 57). The City allowed this behavior to persist by ignoring Plaintiff's pleas to Goode-Trufant for help. (SAC ¶ 57). In Spring 2007, Plaintiff filed a formal internal EEOC complaint after another supervisor, Elizabeth Gallay, refused to seek appeal for a novel case litigated by Plaintiff in 2005, despite doing so for a white attorney in a less meritorious case. (SAC ¶¶ 58, 59, 60). In 2007, Gallay also wrongfully "disrupted Plaintiff's efforts to litigate a federal action," though Plaintiff was able to achieve "an exceptional, unprecedented motion victory." (SAC ¶¶ 63, 64).
In September and October 2007, Goode-Trufant told Plaintiff by phone that the investigation had concluded in her favor, that her transfer request would be granted, and that Palomino and Gallay were not to supervise her anymore. (SAC ¶ 66). In an October 2007 letter,however, Goode-Trufant contradicted her oral statements and instead found "no probable cause" of discrimination, though stating that Palomino and Gallay had committed supervisory failures. (SAC ¶ 67). In November 2007, instead of receiving the positive transfer she was promised orally, Plaintiff was offered the option of remaining under the supervision of Palomino and Gallay or being transferred to a less prestigious borough unit within the Torts Division. (SAC ¶¶ 68, 69). To avoid an adverse EEOC ruling, Defendants allegedly submitted materially false information, including the assertion that Plaintiff had applied for a supervisory position at the Pensions Division, to justify denial of her transfer request. (SAC ¶¶ 93, 94). Denied the resolution she requested in her EEOC complaint, Plaintiff resigned. (SAC ¶ 70).
Corporation Counsel Michael Cardozo received information about Plaintiff's claim directly from...
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