Johnson v. City of N.Y.

MICHAEL JOHNSON, Plaintiff, v. THE CITY OF NEW YORK, DANIEL A. NIGRO, MICHAEL GALA,MICHAEL CURNEEN, JAKE LAMONDA, AND JOHN JOE OR JANE DOE, Defendants.

16-CV-6426(KAM)(VMS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 30, 2021

MEMORANDUM & ORDER

MATSUMOTO, United States District Judge:

On November 18, 2016, Michael Johnson ("Plaintiff") commenced this action, alleging violations of his constitutional and civil rights in connection with alleged workplace retaliation and alleged wrongful disclosure of his protected personal information, which resulted in derogatory media articles about plaintiff. (ECF No. 1, Complaint.) On March 31, 2018, the court granted in part and denied in part defendant, Jake Lemonda's motion to dismiss, and granted the City Defendants' motion to dismiss. (ECF No. 82, Order Granting in Part and Denying in Part Lemonda's Motion to Dismiss and Granting the City Defendants' Motion to Dismiss.)

On October 31, 2018, plaintiff filed a third amended complaint alleging violations of his constitution and civil rights and unlawful retaliation, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII") against the City of New York. Plaintiff also alleges unlawful retaliation claims against all defendants pursuant to the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. ("NYSHRL") and the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code § 8-107, et seq., as amended. (See generally ECF No. 115, Third Amended Complaint.) Plaintiff additionally brings discrimination and retaliation claims pursuant to 42 U.S.C. §§ 1981 and 1983 against Michael Curneen, Michael Gala, Jake Lemonda, Paul Mannix, and Joseph Kearney. Separately, plaintiff alleges municipal liability against the City of New York, and a conspiracy claim against the defendants pursuant to 42 U.S.C. §§ 1985(3) and 1983. (See id.)

Presently before the court are the summary judgment motions of the City of New York, Michael Curneen and Michael Gala (collectively, the "City Defendants"); Joseph Kearney and Paul Mannix (collectively, the "Individual Defendants"); and Jake Lemonda. (ECF No. 165, Motion for Summary Judgment by the City of New York; ECF No. 171, Motion for Summary Judgment by Jake Lemonda; ECF No. 175, Motion for Summary Judgment by Joseph Kearney and Paul Mannix.) Plaintiff opposes the motions. (ECF No. 179, Plaintiff's Memorandum in Opposition to Summary Judgment Motions by all Defendants ("Pl. Mem.").) For the reasons provided below, the court grants in part and denies in part the defendants' motions for summary judgment.

BACKGROUND

I. Factual Background

The following timeline of events is taken from the parties' filings pursuant to Local Civil Rule 56.1.¹² (See ECF No. 166, City's Rule 56.1 Statement of Undisputed Material Facts ("City's 56.1 Stm't."); ECF No. 172, Lemonda's Rule 56.1 Statement of Undisputed Material Facts ("Lemonda's 56.1 Stm't."); ECF No. 176, Kearney and Mannix's Rule 56.1 Statement of Undisputed Material Facts ("Kearney and Mannix 56.1 Stm't."); and ECF No. 180, Plaintiff's Objections to Defendants' 56.1 Statements ("Pl. 56.1 Stm't.").) The Court has considered whether the parties have proffered admissible evidence in support of their purported undisputed or disputed facts and has viewed the facts in a light most favorable to plaintiff. Disputed issues of fact are noted.

A. Parties

Michael Johnson is a black firefighter who was employed by the New York City Fire Department ("FDNY") since 1999. (Pl. 56.1 Stm't. Response to City ¶ 1; Response to Mannix and Kearney ¶ 1; and Response to Lemonda ¶ 1.) After graduating from the Fire Fighter Academy ("the Academy"), plaintiff was stationed at Engine 257, under the supervision of Defendants, Michael Curneen, Captain of Engine Company 257, and Michael Gala, Chief of Uniformed Personnel of the FDNY. (Pl. 56.1 Stm't. Response to Mannix and Kearney ¶ 3.) Jake Lemonda had been a firefighter and had a supervisory civil service title, but worked as the President of the Uniformed Fire Officers Association (the "UFOA"). (Pl. 56.1 Stm't. Response to Mannix and Kearney ¶ 4; Response to Lemonda ¶¶ 46, 49.) The UFOA is a municipal labor union which represents uniformed employees of the FDNY with supervisory capacities, but does not represent firefighters. (Pl. 56.1 Stm't. Response to Lemonda ¶ 47.) Defendants, Paul Mannix, a Deputy Battalion Chief, and firefighter Joseph Kearney, were also employed by the FDNY at the time Plaintiff was stationed at Engine 257. (Pl. 56.1 Stm't. Response to Mannix and Kearney ¶ 5-6.) From 2010 through 2014, Paul Mannix was the President of Merit Matters, an organization which defendants contend "was dedicated to preserving the salutary benefits of the merit system andretaining high standards within the FDNY."³ (Pl. 56.1 Stm't. Response to Mannix and Kearney ¶¶ 22-26.) Joseph Kearney served as the organization's Vice President. (Pl. 56.1 Stm't. Response to Mannix and Kearney ¶ 27.)

B. Plaintiff's Employment History

Plaintiff was first hired in 1999 to work in the FDNY's Emergency Medical Services division as an Emergency Medical Technician ("EMT"). (Pl. 56.1 Stm't. Response to City ¶ 3; Response to Mannix and Kearney ¶ 42; Response to Lemonda ¶ 1.) In 2013, plaintiff entered the Academy as a probationary firefighter. (Pl. 56.1 Stm't. Response to City ¶ 3; Response to Mannix and Kearney ¶ 43; Response to Lemonda ¶ 2.) After completing the Academy in 2014, plaintiff was assigned to Engine Company 257 in Canarsie, Brooklyn as a 41-year-old firefighter. (Pl. 56.1 Stm't. Response to City ¶¶ 3,7; Response to Mannix and Kearney ¶ 45; Response to Lemonda ¶ 6.) Defendants assert that "no one at Engine 257 ever referred to him [the plaintiff] as a 'priority hire.'"⁴ (Pl. 56.1 Stm't. Response to City ¶ 7.)Plaintiff clarifies that when he arrived at Engine 257, no one referred to him as a priority hire, although comments were made about his 41-year age at the time, indicating knowledge that he was a priority hire. Specifically, the record indicates that Curneen understood plaintiff to be a "priority hire" because of his age. (See id.; ECF No. 164-3, at 167.)

Plaintiff testified that as a probationary firefighter at Engine 257, he individually drilled and practiced by himself putting on personal protective equipment. (Pl. 56.1 Stm't. Response to City ¶ 12, 13.) At Engine 257, while a probationary employee, Johnson would start every tour with a drill and end every tour with a drill as directed by Curneen and other supervisors. (Pl. 56.1 Stm't. Response to City ¶ 12; ECF No. 182-41, Exhibit.) All probationary officers practiced their drills, but out of the seven probationary officers at the time, Captain Curneen stated only Johnson's abilities to perform the drills gave him concerns.⁵ (Pl. 56.1 Stm't. Response to City ¶ 19; ECF No. 164-3, Exhibit BIT transcript at 23-24.) In plaintiff's first performance evaluation, "plaintiff was noted to have deficiencies in donning PPE properly and performing duties at [the] fire." (Pl. 56.1 Stm't. Response to City ¶ 27.) Captain Curneen recommended that plaintiff be re-trained at theAcademy. (Id.) Plaintiff disputes Curneen's assessment of plaintiff and asserts that his evaluations were false, retaliatory, and pretextual. (Id.)

On July 4, 2014, while a probationary officer at Engine 257, plaintiff was injured on the job. (Pl. 56.1 Stm't. Response to City ¶ 33.) Consequently, plaintiff was on medical leave for 226 days and returned to his post on February 2, 2015. (Pl. 56.1 Stm't. Response to City ¶ 38.) Plaintiff's probationary period was extended due to his "excessive medical leave." (Pl. 56.1 Stm't. Response to City ¶ 41.)

C. The April 2, 2015 Fire and Aftermath

On April 2, 2015, two months after plaintiff had returned from medical leave on February 2, 2015, Engine 257 was called to respond to a fire. (Pl. 56.1 Stm't. Response to City ¶ 42.) Plaintiff was assigned to the position of "back-up." (Pl. 56.1 Stm't. Response to City ¶ 44.) After ten minutes at his post, plaintiff left the hose line because his oxygen was low and went back to the firetruck to replace his air tank. (Pl. 56.1 Stm't. Response to City ¶ 45.) During the period after he left the hose line, Captain Curneen called over the radio saying that he could not find his "back-up." (Pl. 56.1 Stm't. Response to City ¶ 47.) Plaintiff responded over the radio and informed Captain Curneen that he was replacing the air in his tank. (Pl. 56.1 Stm't. Response to City ¶ 48.) Plaintiff also testifiedthat when he returned to the burning building after replacing the air in his tank, Curneen told plaintiff to return to the rig. (Pl. 56.1 Stm't. Response to City ¶ 63; ECF No. 170-1 at 115-116.)

Gala was also at the fire on April 2, 2015. (Pl. 56.1 Stm't. Response to City ¶ 105; ECF No. 164-4, Exhibit at 19.) Gala testified that his typical practice is to "snap a couple of pictures and send them off to the fire commissioner." (ECF No. 164-4, Exhibit at 22.) Gala further testified that he saw Johnson the day of the fire and that no one spoke to him about Johnson's whereabouts during the fire. (ECF No. 164-4, Exhibit at 21.) In fact, Gala passed by the rig where plaintiff was and asked plaintiff, "How are you doing?" to which plaintiff replied, "okay." (Id. at ¶ 49.)

After returning to Engine 257, Captain Curneen spoke with Johnson privately and stated "I don't know what I'm going to do with you. I might just have to keep you on the, the back step." (Pl. 56.1 Stm't. Response to City ¶ 50; ECF No. 170-1, Appx. A at 120.) Curneen also testified that he told plaintiff, "maybe this job is not for him." (Id.) No one at Engine 257 spoke to plaintiff for the rest of his shift after they returned to the firehouse. (Pl. 56.1 Stm't. Response to City ¶ 52.) Later that same day, Gala requested information about Johnson and received information regarding Johnson's status as apriority hire. (Pl. 56.1...