Szewczyk v. City of N.Y.

• Decision Date: 28 September 2018
• Docket Number: 17-CV-01884 (MKB)
• Parties: DANUTA SZEWCZYK, Plaintiff, v. THE CITY OF NEW YORK, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PETER GORDON, JOHN DUNCOMBE, ZOE ANN CAMPBELL, HERBERT ROTH, and SVETLANA BRICHKO. Defendants.
• Court: U.S. District Court — Eastern District of New York

DANUTA SZEWCZYK, Plaintiff, v. THE CITY OF NEW YORK, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PETER GORDON,JOHN DUNCOMBE, ZOE ANN CAMPBELL, HERBERT ROTH, and SVETLANA BRICHKO. Defendants.

17-CV-01884 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 28, 2018

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Danuta Szewczyk, proceeding pro se, commenced the above-captioned action on April 3, 2017, and filed an Amended Complaint on October 6, 2017, against Defendants the City of New York (the "City"), the Department of Environmental Protection ("DEP"),¹ Peter Gordon, John Duncombe, Zoe Ann Campbell, Herbert Roth, and Svetlana Brichko, alleging discrimination and retaliation based on her national origin, race, religion, gender, age, marital status, and unemployment status, 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 of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101et seq. ("ADA"), New York State Human Rights Law ("NYSHRL"), and New York City Human Rights Law ("NYCHRL"). (Compl., Docket Entry No. 1; Am. Compl., Docket Entry No. 13.) Plaintiff also asserts common-law claims for slander and libel. (Am. Compl. 3.)

Defendants move to dismiss the Amended Complaint in part, specifically as to: (1) the NYSHRL and NYCHRL claims in their entirety, (2) the Title VII, ADEA, and ADA claims against individual Defendants Gordon, Duncombe, Campbell, Roth, and Brichko, (3) the Title VII, ADEA, and ADA claims to the extent they are time-barred, (4) the Title VII, ADEA and ADA retaliation and ADA discrimination claims in their entirety, and (5) the slander and libel claims.² (Defs. Mot. to Dismiss ("Defs. Mot."), Docket Entry No. 15; Defs. Mem. in Supp. of Defs. Mot. ("Defs. Mem.") 8-19, Docket Entry No. 18; Defs. Reply in Supp. of Defs. Mot. ("Defs. Reply"), Docket Entry No. 20.) For the reasons discussed below, the Court grants Defendants' partial motion to dismiss the Amended Complaint.

I. Background

The facts alleged in the Amended Complaint are assumed to be true for the purpose of deciding Defendants' motion. Because Plaintiff is proceeding pro se, the Court also considers and assumes the truth of Plaintiff's factual allegations in her opposition to the motion.³

Plaintiff is a Roman Catholic woman of Polish descent who was born in 1956. (Am.Compl. 3.) She has two master's degrees, including a Master of Science in Civil Engineering from Poland. (Id. at 4.) In 2011, Plaintiff scored a 100 on the Department of Citywide Administrative Services' civil service examination 1036, placing 153rd out of 472 candidates. (Id. at 4, 7.) Pursuant to the City's "civil service rule," vacancies may only be filled from a list comprised of individuals passing civil service examination 1036 (the "List"). (Id. at 4.)

From 2007 to early 2016, Plaintiff unsuccessfully applied for "Assistant Civil Engineering (ACE)" positions with various city agencies, including the DEP. (Id.) Plaintiff does not specify when and how many times she applied to the DEP, other than one application dated July 29, 2015. (Id.)

Plaintiff alleges that DEP and other City agencies denied her employment because of her status as an unemployed, single, older, Polish, Roman-Catholic woman. (Id. at 4, 7.) In particular, Plaintiff alleges that the DEP and other City agencies harbored "animosity towards Polish Americans," (id. at 5), and favored "candidates from former Soviet Union Federations," (id. at 4-5). She attributes this animosity to the mayor of the City, evinced by his failure to attend the "Pulaski Day Parade" in recent years, and the renaming of the "Kosciuszko bridge." (Id. at 5.) The human resources departments and agency supervisors also allegedly favored candidates of their own ethnic groups over those of Polish descent. (Id. at 7.) Plaintiff also alleges that the City's allowance and organization of yoga classes has led employees to lose their "sensitivity to the needs of other human being[s]." (Id. at 4.) Due to these factors, engineers of Polish descent are "significantly underrepresented in City [government positions]," despite their superior qualifications to engineers from the "Soviet Union." (Id. at 5.)

After interviews in September and November of 2015, Angela DeLillo, the Director for the Bureau of Water and Sewer Operation at the agency, hired Plaintiff as an ACE at DEP in aprobationary capacity for one year. (Id. at 6, 11, 14, 30.) On January 11, 2016, Plaintiff began officially working for the DEP. (Id.) Her work unit consisted of her supervisor Gordon, a white, German male, then in his forties, (id. at 12), and recently hired provisional employees Irina Dobson, a woman from the Soviet Union, (id. at 6-7, 13), and Duncombe, a then-twenty-eight year old, white male, (id. at 6-7). Duncombe was one of two chief engineers in Plaintiff's work unit but lacked the requisite expertise because he had a mechanical rather than civil engineering degree. (Id. at 9, 13.)

On April 26, 2016, the DEP terminated Plaintiff after an exit meeting. (Id. at 18.) Because Gordon refused to explain the basis of her termination., Plaintiff declined to sign the notice of termination. (Id. at 6.) On September 4, 2016, Plaintiff met with Roth, the DEP Human resources director, to discuss her termination. (Id. at 19.) Roth refused to resolve "the dispute" regarding her termination without litigation. (Id.)

Plaintiff alleges that Defendants "conspired against [her] and acted in [a] cold and unscrupulous way" towards her in order to "profit" from her eventual termination. (Id.) She claims that Defendants maintained a scheme to hire employees on a provisional basis to unlawfully bypass the civil service examination system and the List. (Id. at 7-8.) Under this scheme, Defendants hired "their own relatives, friends" and those of the same religious affiliation, fostering a climate of "nepotism, corruption, favoritism and discrimination." (Id. at 7-8.) Defendants also unlawfully hired these "provisional" employees for terms lasting longer than nine months. (Id. at 8.) Plaintiff alleges that Defendants purposefully omitted the names of provisional employees from required public lists to hide their scheme, in violation of a "transparency rule." (Id. at 7-8.)

According to Plaintiff, Gordon, in particular, harbored animus towards her. (Id. at 12.)Gordon had not interviewed Plaintiff and did not like her because she was an "unemployed Polish woman older than h[im]." (Id. at 7-8, 16.) He favored "younger interns" and preferred hiring them as provisional employees. (Id. at 7-8.) During Plaintiff's three and a half-month period of employment, two older employees, aged sixty-seven and seventy respectively, retired. (Id.) Another employee aged fifty-five transferred to another unit in April of 2016. (Id.) Gordon also favored Brichko, a Jewish woman from the Soviet Union, and "conspired secretly" to give her "extra work and extra overtime pay." (Id.) In contrast, Gordon reprimanded Plaintiff for working late and for billing unapproved overtime hours. (Id.) Although Gordon claimed that DEP policies prohibit more than seven hours of work per day, Plaintiff alleges that other agency employees with different supervisors were allowed to work more than that and consequently earn more in salary. (Id. at 14.) Plaintiff also alleges that Defendants allowed other members of her work unit to stay late and bill overtime, while she was limited to seven hours of work per day because she overheard a secret discussion between Gordon and Bricko, detailing their conspiracy. (Id. at 12, 14.) Plaintiff claims that Defendants singled her out by denying her overtime and terminating her so that Gordon could balance the budget, in order to pay staff salary and others' overtime hours. (Id. at 13, 18.)

Plaintiff alleges that Duncombe was also motivated to discriminate against her and "participated" in her termination. (Id. at 9.) Duncombe was personally motivated by his status as a new, provisional employee, dislike for Polish people, German descent, recent marriage, and the need to take care of his future family. (Id.) Gordon also allegedly "manipulated" Duncombe to discriminate against Plaintiff by instilling fear that his job depended on it. (Id.) Duncombe's hiring specifically "clos[ed] the budget," leading to Plaintiff's termination. (Id. at 7.) In carrying out their scheme, Duncombe and Gordon filled out an "Appraisal PerformanceEvaluation form" that mischaracterized Plaintiff's work performance. (Id. at 10.) Plaintiff was unaware of a negative performance report dated April 11, 2016, until after her termination. (Id. at 6.)

Plaintiff alleges further unfair treatment while employed by the DEP. (Id. at 14.) In addition to the pay disparities based on overtime hours, Plaintiff complains of the following treatment: (1) Gordon allowed Brichko but not her to make private calls on their cellular telephones; (2) Gordon had Duncombe reprimand her for using a restroom after work; (3) Gordon and Duncombe signed an evaluation form dated March 17, 2016 that inaccurately described her as "insubordinate[]" and her work as "unsatisfactory"; (4) Gordon complained to another white male employee that new employees were bothersome to him, and often remarked that "women are stealing from his pocket"; (5) the DEP employed a few of Gordon's relatives, and allowed them to work overtime; and (6) Gordon did not allow her to read reports and attend meetings about her projects as promised by DeLillo, who hired her, and instead canceled the projects. (Id. at 13, 16-19.) Plaintiff also alleges that Henry Yi, the counsel for DEP, misrepresented facts to the New York State Division of Human Rights ("NYSDHR"). (Id. at 16-19.) She also claims that the NYSDHR erred by crediting Defendants' arguments and dismissing her claims. (Id.)

Based on these facts, ...