Murray v. Dutchess Cnty. Exec. Branch

NELSON A. MURRAY, Plaintiff, v. DUTCHESS COUNTY EXECUTIVE BRANCH, et al., Defendants.

No. 17-CV-9121 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 25, 2019

OPINION & ORDER

Appearances:

Deirdra J. Brown, Esq.

The Law Office of D. Jen Brown, Esq.

Poughkeepsie, NY

Counsel for Plaintiff

Peter Van Schaick, Esq.

Peter Van Schaick, PC

Poughkeepsie, NY

Counsel for Plaintiff

David L. Posner, Esq.

McCabe & Mack LLP

Poughkeepsie, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Nelson A. Murray ("Plaintiff"), a former employee Dutchess County's Department of Public Works (the "Department"), brings the instant Action against the Dutchess County Executive Branch ("Dutchess County"); Robert Balkind ("Balkind"), the Department Commissioner; and Matthew Dutcavich ("Dutcavich"), Plaintiff's supervisor (collectively, "Defendants").¹ Plaintiff alleges that Defendants discriminated and retaliated against him on the basis of race, maintained a racially hostile work environment, and conspired to terminate him, in violation of 42 U.S.C. §§ 1981, 1983, and 1985; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5 et seq.; and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq. (See Am. Compl. (Dkt. No. 18).)² Before the Court is Defendants' partial Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Motion"). (Not. of Mot. (Dkt. No. 29).) For the reasons that follow, the Motion is granted in part and denied in part.

I. Background

A. Factual History

1. Documents Considered by the Court

The following facts are drawn principally from the Amended Complaint and are taken as true for purposes of resolving the instant Motion.

A court addressing a Rule 12(b)(6) motion may consider, in addition to the operative pleading, "any statements or documents incorporated in [the operative pleading] by reference," as well as "matters of which judicial notice may be taken, and documents either in [the] plaintiff['s] possession or of which [he] had knowledge and relied on in bringing suit." Kalyanaram v. Am. Ass'n of Univ. Profs. at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (citations, alterations, and quotation marks omitted). "To be incorporated by reference, the [pleading] must make a clear, definite[,] and substantial reference to the documents." Thomas v. Westchester County Health Care Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002) (citation omitted). Here, the Court relies upon documents that have been submitted by both Parties and that are integral to and explicitly referenced by the Amended Complaint. See Laface v. E. Suffolk Boces, 349 F. Supp. 3d 126, 143 (E.D.N.Y. 2018) (holding, on motion to dismiss, that the court will consider documents where "[t]he [p]laintiff specifically mention[ed] the[] documents throughout the complaint and relied on their terms or contents while drafting the complaint"); Falcon v. City Univ. of New York, 263 F. Supp. 3d 416, 424 (E.D.N.Y. 2017) (holding, on motion for judgment on the pleadings, that the court will consider EEOC documents submitted by the defendant where "the complaint references the [p]laintiff's EEOC filings, and she even included the EEOC's findings, and her right to sue letters," and "[a]lthough [the plaintiff] did not include all of the EEOC paperwork . . . , she ha[d] notice of those documentsbecause she submitted them and received them, and she based the instant action on those proceedings").

The Court recounts only those facts necessary for consideration of the instant Motion.

2. Statistical Background

Plaintiff broadly alleges that Dutchess County's 2013 Affirmative Action Plan and Workforce Analysis (the "2013 Analysis") demonstrates that the County maintains "gross disparities of statistical significance between the number of minorities employed . . . and the number expected to be employed under fair, non-discriminatory practices." (Am. Compl. ¶ 24.)³ In particular, Plaintiff alleges that, according to the 2013 Analysis, there were 1,966 County employees in 2013, of which 284 were minorities; yet, if the County workforce reflected the local labor market, the County should have expected to have 411 minority employees. (Id. ¶ 25.) That disparity of 127 minority employees is "7.04 standard deviations" from the predicted outcome, which "creates a strong presumption of discrimination." (Id.)⁴ In the County's Department of Public Works — the Department in which Plaintiff was employed — there were 259 employees in 2013, of which 22 were minorities where 54 would be predicted; that disparityis 4.9 standard deviations from the predicted outcome, which again "creates a strong presumption of discrimination." (Id. ¶ 27(c).)⁵

Plaintiff alleges that, notwithstanding these stark statistical disparities, the County "has failed to effectively implement an equal opportunity compliance program" and thus has "developed a culture that actively practices or passively tolerates workplace discrimination." (Id. ¶ 31.) In addition, Plaintiff alleges that the County has failed to publish a more recent statistical analysis; to "train its managers in skills that reduce implicit bias"; to "monitor employment decisions at the level necessary to discover systemic differences in treatment"; to "hold its managers . . . accountable for the quality of their [employment] decisions"; to "systematically recruit minorities"; to "investigate claims of . . . discrimination"; and to "institute[] procedures for protecting employees who complain" of discrimination. (Id. ¶ 32.)⁶

3. Plaintiff's Hiring

Plaintiff is an African-American man. (Id. ¶ 9.) In 2004, Plaintiff applied for a position with Dutchess County's Department of Public Works (the "Department") as a Junior Civil Engineer. (Id. ¶ 39.) The County maintains five relevant engineering positions. (Id. ¶ 48.) In order of ascending hierarchy, those positions are: Engineering Aide ("EA"), Senior Engineering Aide ("SEA"), Junior Civil Engineer ("JCE"), Assistant Civil Engineer I ("ACE I"), and Assistant Civil Engineer II ("ACE II"). (Id.) As of 2004, Plaintiff had seven years of field experience, as well as a relevant certification and "several college credits toward a degree in civil engineering"; those qualifications met the criteria required for the JCE position. (Id. ¶¶ 39-40.)However, the County "rejected [Plaintiff's] application" and "selected another candidate." (Id. ¶ 41.) Plaintiff "remained in continuous contact" with the County for two years to obtain a position, during which time the Department allegedly hired "seven new employees (all White)." (Id. ¶¶ 41-42.) However, Plaintiff only lists six such employees — Vasily Shatalov ("Shatalov") and Darren Hawkins ("Hawkins"), hired as EAs; William Trifilo ("Trifilo") and Larry Donnelly ("Donnelly"), hired as SEAs; and Soma Mathews ("Mathews") and Ashur Udin ("Udin"), hired as JCEs. (Id. ¶ 42.) Further, Plaintiff indicates that two of those employees, Udin and Mathews, are "East Indian." (Id. ¶¶ 42, 49.) Plaintiff alleges that each of the hired employees except Trifilo had less field experience than he had. (Id. ¶ 42.)

In 2007, Plaintiff obtained a position with the County as an SEA, by which time he had ten years of field experience. (Id. ¶ 43.) Since Plaintiff's hiring, the Department "has employed two minority SEAs." (Id. ¶ 50.) Plaintiff does not identify the other minority SEA employee.

4. Overtime

County employees must receive authorization from a Department head before working overtime. (Id. ¶ 44.) The collective bargaining agreement between the County and Civil Service Employees Union (the "Union") requires that overtime and premium pay opportunities be rotated on an "equitable basis . . . consistent with the most effective operation of the Unit." (Id. ¶ 45.)

Plaintiff broadly alleges that white employees in the Department were favored over minority employees in awarding overtime opportunities. (Id. ¶ 46.) In support, Plaintiff cites two examples. First, in 2014, Plaintiff's Department supervisor (who is unnamed) "told him that there were on overtime hours available due to cutbacks," when Plaintiff knew that a white coworker (who is unnamed and whose position is not specified) had received substantial overtime "during the height of the construction busy season." (Id. ¶ 46(a).) Second, inNovember 2016, Defendant Dutcavich, Plaintiff's direct supervisor, assigned Shatalov, a white employee and by then a JCE, to work overtime on Election Day, after which Plaintiff requested to work overtime on Veteran's Day. (Id. ¶¶ 13, 47(a), 49(f).) However, Dutcavich denied Plaintiff's request and instead assigned Shatalov to work Veteran's Day. (Id.) When Plaintiff pressed for an explanation, Dutcavich did not respond. (Id. ¶ 47(b).)

Separately, Plaintiff alleges that the Department lacked "procedures" and "records" for "deciding who would receive overtime hours," and permitted "subjective decision-making" in the assignment of overtime, thus "creat[ing] disparities between white and minority employees." (Id. ¶¶ 47(c)-(d).)

5. Promotions

The County maintains a practice of promoting engineers "through the ranks." (Id. ¶ 48.) Plaintiff alleges that, between 2009 and 2014, the County promoted "approximately twelve" employees in the Department, all of them allegedly white. (Id. ¶¶ 49-50.) Those promotions were: Trifilo, from SEA to JCE in 2009; Donnelly, from SEA to JCE in 2009; Hawkins, from EA to SEA in 2009; Dutcavich, from JCE to ACE I in 2009 and then to ACE II in 2010; Shatalov, from EA to SEA in 2009, and then to JCE later the same year (thus "leap-frogg[ing]" Plaintiff); Udin (who, as noted, is described as "East Indian"), from JCE to ACE I in 2009; and Defendant Balkind, from ACE II to Director of Highway, in 2009, to Deputy Commissioner in 2012, and to Commissioner in 2014. (Id. ¶¶ 49, 57(b).)

Plaintiff was not promoted out of his SEA position, nor did the Department's two other minority...