Timmer v. The City Univ. of New York
| Decision Date | 13 August 2021 |
| Docket Number | 20-CV-02554 (PKC) (RLM) |
| Parties | MICHEAL TIMMER, Plaintiff, v. THE CITY UNIVERSITY OF NEW YORK, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
In an Amended Complaint filed on December 30, 2020, Plaintiff Micheal Timmer sued his employer, The City University of New York (“CUNY”), for race discrimination retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and for disability discrimination retaliation, and hostile work environment under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Now before the Court is Defendant's motion to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). The Court grants Defendant's motion in part and denies it in part.
The Amended Complaint alleges the following facts, which the Court accepts as true for purposes of this motion. See Forest Park Pictures v. Universal Television Network Inc., 683 F.3d 424, 429 (2d Cir. 2012).[1]
Plaintiff a Black man, lives in Kings County, New York. (Amended Complaint (“Am. Compl.”), Dkt. 16, ¶¶ 10, 17.) Since 2001, he has been an employee of CUNY, which “operates the New York City College of Technology, a four-year college . . . located at 300 Jay Street, Brooklyn, NY 11201” (“City Tech”), and which receives Federal, State, and City funding. (Id. ¶¶ 11, 13-17); see also About Us, New York City College of Technology, https://www.citytech.cuny.edu/ (last visited August 13, 2021).
In 2007, Plaintiff was promoted to the position of Peace Officer. (Am. Compl., Dkt. 16, ¶ 20.) His duties include “patrolling campus grounds, opening and closing doors, responding to complaints and emergencies, taking information and making reports, signing in guests, and regulating access and entrances and exits.” (Id. ¶ 21.) “Plaintiff's duties sometimes require standing for long periods of time . . . .” (Id. ¶ 26.) During the events described in the Amended Complaint, Plaintiff reported to Lieutenants Efren Maldonado and Jessica Marrero, “both of whom are Hispanic.” (Id. ¶ 30.) At times, Plaintiff also reported to Sergeant Chantel Jenkins. (Id. ¶ 31.)
Plaintiff's ability to stand is “substantially limited” by a cyst in his left foot. (Id. ¶ 12.) In 2019, a Workers Compensation Judge determined that Plaintiff had lost 20% of the use of his left foot. (Id. ¶ 25.) Defendant received notice of this decision. (Id.) Because Plaintiff's duties sometimes require standing, his left foot condition causes him “extreme pain in his left foot and leg.” (Id. ¶ 26.) This “substantially limit[s] his ability to stand and walk.” (Id. ¶ 62.) “Sometimes, while working, Plaintiff's left foot would go numb with tingling . . ., causing the severe pain.” (Id. ¶ 63.)
Plaintiff has received medical treatment for his foot, and doctors have “not[ed] that he would sometimes need to sit to relieve some of the pain.” (Id. ¶ 64.) Doctors have prescribed Plaintiff 800mg ibuprofen, and he has “us[ed] sleeping pills (Zolpidem) to sleep during the day” when he worked the night shift. (Id. ¶ 65.) “[D]ue to medications he was taking, ” Plaintiff “suffered from incontinence” (id. ¶ 12), “especially during colder weather months or colder conditions at work” (id. ¶ 84). Despite his injuries and medications, Plaintiff has remained qualified to perform his job “and remains a well-liked and respected employee.” (Id. ¶¶ 27-29.)
In 2011, Plaintiff filed a complaint against another Lieutenant, Lieutenant Lionel Presume “for gender discrimination in favor[ing] female sergeants over male sergeants, ” and for “harassment and bullying of Plaintiff.” (Id. ¶ 33-34.) In 2013, Plaintiff “documented to his union agent . . . that he felt as though [Presume's] gender bias, harassment, and bullying had prevented Plaintiff from receiving a promotion to sergeant sooner.” (Id. ¶ 35.)
In August 2015, Maldonado announced during a roll call meeting that all chairs at Peace Officer posts were being removed. (Id. ¶ 36.) Plaintiff “immediately stated” that this was retaliation for his request “to be relieved from duty [approximately a month before] due to experiencing severe pain in his right hand and arm” and his “complaining about Defendant's failures to relieve him from duty.” (Id.)
The next day, Plaintiff complained to Defendant's “Diversity Officer” “about the hostile work environment and retaliation he was experiencing from [] Maldonado and [] Presume.” (Id. ¶ 37.) “Shortly after this complaint, ” Maldonado “called Plaintiff into his office and disciplined Plaintiff through a counseling letter.” (Id. ¶ 38.) Maldonado also questioned Plaintiff about his “lateness to work” and “threatened Plaintiff that if he did not give the reason behind his lateness, he would not receive a leave of absence in the future.” (Id. ¶¶ 39-40.)
In October 2015, Plaintiff submitted a complaint regarding the August 2015 incidents to his union officials. (Id. ¶ 41.) The complaint “detail[ed] the hostile work environment and retaliation perpetrated by [] Maldonado and Presume.” (Id.)
In December 2018, Maldonado denied Plaintiff's request for approval of a vacation day. (Id. ¶ 45.) Plaintiff resubmitted the request to Marrero, who “communicated with” Maldonado and “likewise denied Plaintiff's request.” (Id. ¶¶ 45-47.) Marrero told Plaintiff the request was denied because Maldonado was on vacation. (Id. ¶ 47.)
A Hispanic employee, Jordan Solar, who had just been hired, “was given approval for vacation instead of Plaintiff.” (Id. ¶¶ 49, 52.) “Solar, a Campus Security Assistant [], performed some of the same duties as Plaintiff.” (Id. ¶ 50.) Plaintiff heard Solar say that Maldonado had approved his vacation request “even though it was during the same period requested by Plaintiff.” (Id. ¶ 51.) “At roll call . . . on January 19, 2019, Plaintiff openly verbally complained about discriminatory conduct that he had been experiencing, i.e. that [] Maldonado and [] Marrero denied his vacation requests in favor of other Hispanic officers because of Plaintiff's race.” (Id. ¶ 79.)
A deadline of January 19, 2019 was set for submitting vacation requests. (Id. ¶ 53.) A less-senior Campus Peace Officer, “Maxil, ” who is also Hispanic, submitted a request for vacation after the deadline. (Id. ¶¶ 54, 56.) The request “was originally denied, ” but “Maxil resubmitted the request to [] Marrero and it was subsequently approved after the January 19 deadline.” (Id. ¶ 54.) “[W]hile [] Marrero told Plaintiff that she had to discuss Plaintiff's request for vacation with [] Maldonado prior to deciding on whether to grant or deny the request, [] Marrero did not communicate with [] Maldonado in granting Maxil's request.” (Id. ¶ 55.)
“On or about January 17, 2019, while Plaintiff was at his post, [] Maldonado approached Plaintiff and asked why he was sitting.” (Id. ¶ 71.) “Plaintiff reminded [] Maldonado of his [foot condition] and requested . . . that he be permitted to use a chair throughout the day [to] sit down intermittently.” (Id. ¶ 72.) Although “Plaintiff previously worked the same exact position on the night shift and had been permitted to use a chair by other supervisors” (id. ¶ 74), Maldonado denied Plaintiff's request (id. ¶ 76).
At the January 19, 2019 roll call, “Plaintiff openly verbally complained about discriminatory conduct that he had been experiencing, i.e. that [] Maldonado and [] Marrero denied his vacation requests in favor of other Hispanic officers because of Plaintiff's race” and that Maldonado “had been harassing him by denying [his] request for accommodation and removing the chair he needed at his post.” (Id. ¶ 79.) “Marrero approached Plaintiff and asked if he wanted to submit a written statement of his complaint . . . .” (Id. ¶ 80.) “Plaintiff agreed and submitted a written statement” to Defendant's[2] Director of Public Safety. (Id.)
On January 30, 2019, Plaintiff called dispatch for two breaks, both of which were approved. (Id. ¶ 81.) Although “Plaintiff was entitled to these two breaks” (id.), “[a]fter his second break, [] Jenkins called Plaintiff and threatened that if he took another break, he would be written up” (id. ¶ 82). Either Maldonado or Marrero instructed Jenkins to make the call. (Id. ¶ 83.)
Plaintiff, who suffers from incontinence, contacted Defendant's Human Resources (“HR”) Director and asked for another break, explaining that he needed to use the bathroom immediately or he was “going to soil [him]self.” (Id. ¶¶ 86-90.) Plaintiff was not granted permission to use the bathroom and “ended up soiling himself at his post.” (Id. ¶ 91.) Plaintiff contacted dispatch and explained what had happened, then, “[h]umiliated and embarrassed, ” he went on break for a meal and to clean himself. (Id. ¶¶ 92-93.)
When Plaintiff returned from his break on January 30, 2019, Maldonado called him and told him to report to “the office.” (Id. ¶ 94.) Maldonado and the HR Director gave Plaintiff a letter telling him he was suspended for 30 days “pending investigation and subject to termination.” (Id. ¶ 96.)
In March 2019, “Defendant proffered . . . charges against Plaintiff, claiming he exposed himself and urinat[ed] at his post.” (Id. ¶ 100.) These charges “were based on deduction from statements made by non-eyewitnesses.” (Id. ¶ 101.) “Plaintiff never exposed himself at any time while on duty.” (Id.) Defendant ultimately required Plaintiff to attend a disciplinary hearing before an independent arbitrator,...
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