Bernardi v. N.Y. State Dep't of Corr. & Cmty. Supervision

ROMANO BERNARDI, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONSAND COMMUNITY SUPERVISION, et al., Defendants.

No. 19-CV-11867 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 18, 2021

OPINION & ORDER

Appearances:

Mitchell Ian Weingarden, Esq.

Law Offices of Mitchell I. Weingarden, PLLC

White Plains, NY

Counsel for Plaintiff

Bruce J. Turkle, Esq.

New York State Office of the Attorney General

New York, NY

Counsel for Defendants

KENNETH M. KARAS, District Judge:

Romano Bernardi ("Plaintiff") brings this Action, pursuant to Title VII, 42 U.S.C. § 2000e, et seq., New York law, and 42 U.S.C. § 1983, against the New York State Department of Corrections and Community Supervision ("DOCCS") and Daniel Rushia ("Rushia"; together, "Defendants"), alleging that Defendants discriminated against Plaintiff in the context of his employment based on his national origin, and retaliated against Plaintiff after he complained of this allegedly discriminatory treatment. (See Am. Compl. ("AC") (Dkt. No. 19).) Before the Court is Defendants' Motion To Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the "Motion"). (Not. of Mot. (Dkt. No. 26).) For the reasons that follow, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are taken from Plaintiff's Amended Complaint and attached exhibits. They are assumed true for purposes of adjudicating the instant Motion.

Beginning in October 2002, Plaintiff was employed by DOCCS as an electrician working at the Bedford Hills Correctional Facility ("BHCF"). (AC ¶ 18.) Plaintiff, an Italian immigrant with a pronounced accent, (id. ¶ 4), confronted discrimination and abusive behavior and language throughout his employment, (id. ¶ 19). This included "co-workers telling [P]laintiff to 'go back to his own country,' many references to [P]laintiff's immigrant status, claims that his 'guinea food stinks', use of this and other Italian slurs, and many similar comments." (Id. ¶ 20 (brackets omitted).) Rushia, Plaintiff's supervisor, (id. ¶ 12), was among the DOCCS employees who made these statements, (id. ¶ 21). In addition, Plaintiff "observed that [DOCCS] [a]dministration favored non-immigrant employees[] over immigrants such as Plaintiff[] regarding the allocation, distribution[,] and payment of overtime." (Id. ¶ 25; see also id. ¶ 45 (same).) The preference given to non-immigrants benefited Rushia, who is a non-immigrant. (Id. ¶ 27.) Plaintiff "was very vocal and challenged the [DOCCS] administration for failing to fairly distribute overtime to him and other immigrant workers." (Id. ¶ 24.)

On February 28, 2014, Plaintiff filed a complaint (the "2014 Complaint") with the New York State Division of Human Rights ("NYSDHR"). (Id. ¶ 39.) The 2014 Complaint, among other things, charged that DOCCS discriminated when assigning overtime, favoring Americanover foreign-born employees. (Id.; see also id. Ex. D ("2014 Complaint") 22 (Dkt. No. 19-1).)¹ Its primary claim was that Plaintiff had been wrongfully suspended for allegedly assaulting another employee, an incident that never occurred. (2014 Complaint 22.) The 2014 Complaint claimed that this discipline was consistent with the pattern of receiving frequent Notices of Discipline ("NODs") for behavior that other employees engaged in routinely without discipline. (Id.) It claimed that this discipline was the result of discrimination based on national origin and retaliation for Plaintiff's complaints about the same. (Id.) On April 7, 2014, DOCCS allowed Plaintiff to return to work and dropped all disciplinary charges. (Id. at 29.) In a filing dated May 16, 2014, Plaintiff continued to seek $10,000 in lost wages for the period during which he was improperly suspended. (Id. at 30.) In February 2015, Plaintiff and DOCCS settled the 2014 Complaint, with Plaintiff receiving $10,000 and DOCCS agreeing "to adhere to the Human Rights Law." (AC Ex. E ("Settlement") 43 (Dkt. No. 19-1).)

After returning to work, Plaintiff suffered a serious injury. (AC ¶ 44.) Plaintiff received Workers' Compensation benefits and missed work for much of 2016. (Id.) Upon returning to work in early 2017, Plaintiff observed that DOCCS continued to discriminate against foreign-born employees, including assigning them less overtime. (Id. ¶ 45.) Plaintiff complained about this to DOCCS administration. (Id. ¶ 46.) DOCCS did not properly investigate Plaintiff's complaints. (Id. ¶ 47.) Instead, Plaintiff claims that DOCCS continued discriminating, and later retaliated against him. (Id. ¶ 48-49.) On April 12, 2018, Rushia and another employee falsely accused Plaintiff of threatening and harassing them. (Id. ¶¶ 29-30, 32.) As a result, Plaintiff was served with a NOD on April 13, 2018 (the "April 2018 NOD"). (Id. ¶ 31.) In addition,Rushia and the other employee filed criminal complaints charging harassment. (Id.) Plaintiff hired counsel to contest the NOD. (Id. ¶ 35.) On May 8, 2018, Plaintiff's counsel submitted a grievance (the "Grievance") to the Disciplinary Panel Administration ("DPA") of the New York State Governor's Office of Employee Relations based upon the April 2018 NOD. (Id. ¶ 36.) The Grievance was received by DOCCS's Bureau of Labor Relations on May 10, 2018. (Id. ¶ 37.) On May 22, 2018, Plaintiff served a Notice of Claim (the "Notice") upon DOCCS. (Id. ¶ 79.) The Notice claimed, among other things, that "[t]he [a]dministration of [BHCF] is determined to terminate [Plaintiff] because of his continued vocal protest of the unjust and discriminatory behavior in the allocation of overtime to [BHCF] employees, so that 'immigrant employees' receive little [or] . . . no overtime while 'American born employees' receive essentially all of the allotted overtime." (Id. ¶ 80; id. Ex. C ("Notice") 16 (Dkt. No. 19-1).)

On June 12, 2018, DOCCS issued a second NOD to Plaintiff (the "June 2018 NOD"). (AC ¶ 52.) This NOD was the basis on which Plaintiff's employment was terminated in late 2018 or early 2019. (Id. ¶¶ 52, 70.) However, Plaintiff never personally received it. (Id. ¶ 53.) This is apparently because the June 2018 NOD and related paperwork were sent to an old address that Plaintiff had stopped using. (Id. ¶¶ 71-72.) Both before and after the June 2018 NOD, Plaintiff received paperwork at his proper address from DOCCS and other New York State entities, including the April 2018 NOD, a third NOD filed on July 26, 2018, and payroll, benefit, and tax documents. (Id. ¶¶ 57, 59, 73.) In addition, the Grievance, the Notice, and Plaintiff's Equal Employment Opportunity Commission charge ("EEOC" and the "EEOC Charge")—transmitted to DPA and DOCCS's Bureau of Labor Relations on August 2, 2018, (id. ¶ 60; id. Ex. A ("EEOC Charge") 2 (Dkt. No. 19-1))—contained Plaintiff's correct address, (AC ¶ 74). Further, Plaintiff's counsel communicated with numerous DOCCS representativesbetween the issuance of the June 2018 NOD and Plaintiff's termination. (See id. ¶¶ 61, 62.) This included scheduling arbitration related to the EEOC Charge, (id. ¶ 61), and communications regarding a demand for arbitration and requests for discovery related to the July 2018 NOD, (id. ¶ 62). During these extensive conversations, DOCCS's representatives did not mention the June 2018 NOD, or the possibility that Plaintiff would be dismissed on this basis. (Id. ¶ 63.) In November 2018, Plaintiff became aware of the possibility of another NOD, as well as the possibility that DOCCS was planning to terminate Plaintiff for failing to respond to it. (Id. ¶ 65.) Plaintiff's counsel on November 26, 2018 emailed DOCCS's attorney Matthew Bloomingdale ("Bloomingdale") requesting among other things correspondence or documentation regarding Plaintiff's termination. (Id. ¶ 66.) Plaintiff's counsel sent follow-up emails on December 4, 2018 and December 7, 2018. (Id. ¶ 67.) Only at this point did Bloomingdale respond, noting that Plaintiff was terminated for failure to respond to or appeal the June 2018 NOD. (Id. ¶ 68.) Plaintiff's counsel immediately responded requesting documentation related to this termination. (Id.) After follow-up emails on December 27, 2018 and January 2, 2019, Plaintiff's counsel was ultimately supplied with the requested documents on January 11, 2019. (Id. ¶¶ 69-70.)

Plaintiff brings discrimination and retaliation claims against DOCCS pursuant to Title VII, (id. ¶¶ 81-104), discrimination and retaliation claims against Rushia pursuant to New York State Executive Law § 296 (the "Human Rights Law" or "NYSHRL"), (id. ¶¶ 105-30), a claim for intentional infliction of emotional distress ("IIED") against Rushia, (id. ¶¶ 131-36), and an equal protection claim pursuant to § 1983 against Rushia, (id. ¶¶ 137-40). Plaintiff seeks compensatory and punitive damages plus attorneys' fees and costs. (Id. at 21.)

B. Procedural Background

Plaintiff filed the Complaint on December 27, 2019, (Compl. (Dkt. No. 1)), fewer than 90 days after the EEOC mailed Plaintiff a Notice of Right to Sue on October 1, 2019, (AC ¶ 16; id. Ex. B ("EEOC Letter") 10 (Dkt. No. 19-1)). On March 12, 2020, Defendants filed a pre-motion letter arguing that Plaintiff's Complaint should be dismissed. (Dkt. No. 13.) Plaintiff replied by letter dated March 19, 2020, (Dkt. No. 14), and the Court scheduled a pre-motion conference, (Dkt. No. 15). At the pre-motion conference, rather than order a briefing schedule, the Court granted Plaintiff leave to file an amended complaint. (See Dkt. (minute entry for June 9, 2020).) Plaintiff filed his Amended Complaint on July 8, 2020. (AC.) Defendants filed a second pre-motion letter on July 21, 2020, (Dkt. No. 21), and Plaintiff replied on July 28, 2020, (Dkt. No. 22). The Court held a pre-motion conference on September 24, 2020, (see Dkt. (minute entry for Sep. 24, 2020)), at which it adopted a briefing schedule for the instant Motion, (Dkt. No. 25). Defendants submitted their Motion on October 24, 2020. (Not. of Mot.; Mem. of Law in Supp. of...