McGrath v. Arroyo

MICHAEL MCGRATH Plaintiff, v. MARILYN ARROYO, STEVEN RUSSO, JAMES LEONARD, DANIEL NIGRO, MAYOR BILL DEBLASIO,THE FIRE DEPARTMENT OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Defendants.

17-CV-1461 (NGG) (RER)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 8, 2019

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Michael McGrath brings this action against Defendants Marilyn Arroyo, Steven Russo, James Leonard, Daniel Nigro, Mayor Bill DeBlasio, (collectively, the "Individual Defendants"), the Fire Department of the City of New York (the "FDNY"), and the City of New York (the "City"). (See Am. Compl. (Dkt. 32).) Plaintiff asserts causes of action pursuant to: (i) the anti-discrimination provisions found in Title VII of the Civil Rights Act of 1964, as amended ("Title VII"); (ii) the anti-discrimination provisions found in the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; (iii) Title VII's anti-retaliation provisions; (iv) Sections 1981, 1983, 1985 and 1986 of Title 42 of the United States Code; (v) the First Amendment of the United States Constitution; (vi) Section 29 of the New York Human Rights Law ("NYHRL") and §§ 40-c & 40-d of the New York Civil Rights Law ("NYCRL"); (vii) Section 8-107 of the New York City Human Rights Law ("NYCHRL"); (viii) state law tortious interference with contract; (ix) state law intentional infliction of emotional distress; and (x) state law breach of contract.

Before the court is Defendants' motion to dismiss. (Mot. to Dismiss (Dkt. 39); Defs. Mem. of Law in Supp. of Mot. to Dismiss ("Mem.") (Dkt. 40)). For the following reasons, Defendants' motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Factual Allegations

The court takes the following statement of facts from Plaintiff's amended complaint, the well-pleaded allegations of which the court generally accepts as true for purposes of a motion to dismiss. See N.Y. Pet Welfare Ass'n v. City of New York, 850 F.3d 79, 86 (2d Cir. 2017).

At all relevant times, Defendant Mayor Bill DeBlasio was the mayor of the city of New York (Am. Compl. ¶ 14), and Defendant Daniel Nigro was the FDNY Commissioner (id. ¶ 13). Plaintiff Michael McGrath had a long career with the FDNY. (See id. ¶¶ 33-50.) At the beginning of the alleged incidents, Plaintiff was Battalion Commander of Battalion 47, meaning he was "in charge of all FDNY resources in the Rockaways." (Id. ¶ 45.) In 2005, FDNY moved Emergency Medical Services ("EMS") into the firehouse where Plaintiff worked (the "Firehouse"). (See id. ¶ 51.) The complaint alleges that there are no written procedures for how "fire personnel should interact" with EMS. (Id. ¶ 55).

1. Plaintiff's Allegations Against Arroyo

In January 2014, Plaintiff and Defendant Marilyn Arroyo met at the scene of an accident that involved an EMS FDNY vehicle. (Id. ¶ 63.) At that time, Arroyo worked for FDNY EMS. (See id. ¶¶ 63-65.) In the following months, Plaintiff and Arroyo interacted professionally and sometimes discussed personal topics. (See, e.g., id. ¶¶ 64, 66, 68, 69, 70, 72.) For a few months, Arroyo worked out of another EMS location, but she rotated back to the EMS station at the Firehouse in the spring of 2014. (Id. ¶¶ 71, 72.) Plaintiff and Arroyo continued to converseoccasionally (id. ¶ 74), including at a barbecue Arroyo attended at Plaintiff's house in July 2014 (id. ¶¶ 80, 82). They discussed both personal and professional matters at the barbecue and continued to do so in subsequent months. (Id. ¶¶ 82-83.)

Plaintiff alleges that, in or about July 2014, Arroyo was having sex in the Firehouse with a firefighter stationed there. (Id. ¶ 77.) Plaintiff did not know about it at the time. (Id.) In January 2015, Plaintiff "began hearing numerous detailed accounts that Arroyo had sex with" a firefighter in the Firehouse. (Id. ¶ 84.) A different firefighter later informed Plaintiff that he had walked in on Arroyo and a firefighter having sex in the steam room of the men's bathroom in the Firehouse. (Id. ¶¶ 116-22.) In March 2015, the wife of a firefighter in the Firehouse approached Plaintiff in a restaurant and told Plaintiff she knew about Arroyo "having sex in the firehouse." (Id. ¶ 86.) Plaintiff alleges that he also heard that "Arroyo kissed her Firefighter boyfriend on the lips at the scene of the fire where [a] civilian fatality had occurred." (Id. ¶ 93).

Plaintiff decided action must be taken because, if these rumors were true, Arroyo's conduct would be "a violation of FDNY policies and procedures." (Id. ¶ 87.) The day after the complaint in the restaurant, Plaintiff met with Arroyo's supervisor, Defendant EMS Chief Steven Russo, to discuss Arroyo having sex in the Firehouse. (Id. ¶ 89.) Russo said "he would look into it and get back to [Plaintiff]" but Russo did not "get back to him." (Id. ¶ 90.) Because Russo allegedly did not investigate the allegations against Arroyo, Plaintiff decided to "conduct an investigation." (Id. ¶¶ 94-95.) He spoke with Arroyo about the allegations. (Id. ¶¶ 95-96.) The firefighter with whom Arroyo allegedly had sex "did not work in [Plaintiff]'s command," so Plaintiff contacted Assistant Chief Edward Baggott and Division Commander James DiDomenico. (Id. ¶ 100.) Plaintiff alleges, upon information and belief, that Baggott then contacted the Bureau of Investigations and Trials ("BITs") to determine how to proceed. (Id.¶ 102.) Later the same day, DiDomenico advised Plaintiff that BITs was not going to investigate Arroyo's behavior. (Id. ¶ 103.) Plaintiff alleges that "BITs chose not to act on the allegations" because Arroyo is Hispanic and female. (Id. ¶ 104.)

2. FDNY's Investigation of Plaintiff

On or about March 27, 2015, Plaintiff was moved to the Queens Borough Command. (Id.) Plaintiff alleges he was "stripped of his duties" (id. ¶ 111), and that he was not told "why he was being moved or for how long" (id. ¶ 112). In his new position, Plaintiff was not fighting fires. (Id. ¶ 113.) Instead, he was "relegated to sitting at a desk . . . and creating a newsletter once a month." (Id.) "At some point after being removed from his firehouse, someone from the Uniformed Fire Officers Association" told Plaintiff they heard Arroyo filed a claim of harassment (id. ¶ 132), and Plaintiff alleges, upon information and belief, that "these actions were taken against [him] because he is a Caucasian (white) who investigated allegations of wrongdoing against Arroyo who is Hispanic and a female" (id. ¶ 114). Plaintiff further alleges that his complaints about Arroyo were ignored because he is a white man, while Arroyo's complaints were investigated because she is "Hispanic and a Female." (Id. ¶ 115.)

On November 24, 2015, Plaintiff received a "Notice of Investigation," which informed him that a "female subordinate" had filed "an allegation against him." (Id. ¶ 133.) Plaintiff "was not notified in writing . . . who made the allegation against him as required by policy." (Id. ¶ 136.) On January 6, 2016, Plaintiff alleges that he was interview by the FDNY EEO¹ about the allegations against him. (Id. ¶ 139.) After the interview, Plaintiff alleges that he was "kept in the dark for months." (Id.)

On May 16, 2016, Plaintiff "filed a complaint with the New York State Division of Human Rights [("SDHR")] and the United States Equal Employment Opportunity Commission [("EEOC")], as well as an internal FDNY EEO complaint." (Id. ¶ 141.) FDNY continued its investigation of Arroyo's allegations after Plaintiff filed his complaints with SDHR, EEOC, and FDNY EEO. (Id. ¶ 141.) FDNY informed Plaintiff that they would "not investigate his claims" because he had "filed a complaint with the SDHR." (Id. ¶ 146.) Plaintiff alleges, however, that FDNY "ignor[ed Plaintiff's] complaints . . . because he is a Caucasian/White Male." (Id. ¶ 148.) Plaintiff also claims that the decision to continue investigating the claims against him was in violation of FDNY policy, which states that "investigations must be completed within 90 calendar days." (Id. ¶ 142.) On July 7, 2016, FDNY EEO conducted another interview of Plaintiff, during which they placed Plaintiff under oath, a procedure which Plaintiff alleges was also a violation of FDNY policy. (Id. ¶ 151.) On August 15, 2016, Plaintiff received word from FDNY EEO that "the allegations against him were substantiated" and that he would be referred for discipline. (Id. ¶ 154.)

At some point,² someone from UFOA allegedly told Plaintiff he needed to admit to various allegations against him, including that he was "dating" Arroyo, that firefighters had been talking about Arroyo having sex in the firehouse, and that he told another firefighter to "break up with" Arroyo. (Id. ¶¶ 159-60.) Plaintiff refused to do so. (Id. ¶ 161.) A few days later, Assistant Chief Edward Baggott, allegedly the "fifth highest uniformed officer of the FDNY," told Plaintiff that "someone in Headquarters told him to tell [Plaintiff] to [admit to the allegations.]" (Id. ¶ 162.) Plaintiff alleges, on information and belief, that this message camefrom Defendant Department Chief James Leonard. (Id. ¶ 165.) This made Plaintiff feel threatened and intimidated. (Id. ¶ 164.) Someone from the firefighters' union also called Plaintiff to say that "leadership from FDNY" told him to "take the 'deal' and that, if he did not, FDNY would 'go after'" him. (Id. ¶ 166.) On September 9, 2016, Plaintiff was served with "charges." (Id. ¶ 155.)

3. Plaintiff's Disability Pension

Plaintiff "suffers from various medical issues including asthma, sinus congestion, gastroesophageal reflux disease, and PTSD as a result of his recovery work at the World Trade Center [] following the September 11, 2001 terrorist attacks. (Id. ¶ 176.) He also suffers from "various medical issues, including disabling orthopedic infirmities, stemming from fighting fires." (Id. ¶ 177.) In April 2017, Plaintiff "applied for accident disability retirement" from the FDNY, but was...