Black Porter Sufficiently Pleads Retaliation, But Not Against an Individual Who Did Not Have the Requisite “Personal Involvement”

In Lawrence v. Sol G. Atlas Realty Co., No. 14-cv-3616, 2016 WL 7335612 (E.D.N.Y. Dec. 16, 2016), the court denied in part defendants’ motion to dismiss plaintiff’s retaliation claims. (This decision follows the Second Circuit’s October 28, 2016 decision vacating the district court’s order compelling arbitration of plaintiff’s claims.)

Here are the facts, as summarized by the court:

Atlas is a real estate and property management company that specializes in the rental and management of residential apartments. Plaintiff, a West Indian/Black, has been employed by Atlas since April 1994 and at the time of the events at issue was employed as a porter and responsible for the overall maintenance and cleanliness of the interior and exterior of his assigned buildings and grounds in Atlas’s Great Neck complex. In July 2008, Fidos, a Caucasian/Polish-American was hired as superintendent of the Great Neck complex and became plaintiff’s supervisor. Fidos engaged in a pattern of discriminatory treatment towards plaintiff and other West Indian and or Black porters. Among other things, Fidos hired almost exclusively Caucasian and/or Polish American employees; made disparaging remarks about Blacks and West Indians; subjected plaintiff and the other Black and/or West Indian porters to unequal treatment, scrutiny, discipline and harassment. When plaintiff complained to Bass, Atlas’ Chief Executive officer, she took no action. In fact, in response to plaintiff’s complaints to Bass and his EEOC complaint, Fidos retaliated by increasing the frequency of baseless discipline and write-ups, suspending plaintiff and docking his pay, and setting the time clock ahead to make it appear plaintiff was late.

The court held that plaintiff stated a retaliation claim against Atlas and Fidos:

According to the Complaint, after he complained to Bass, the adverse treatment escalated in that baseless write-ups by Fidos increased, and he suspended plaintiff, docked his pay and threatened him with termination. Given the allegation of an escalation in Fidos’ conduct shortly after the complaint to Bass, it is plausible to conclude at the pleading stage that Fidos was aware of the complaint.

It dismissed, however, plaintiff’s allegations against Bass individually because he did “not show that Bass was personally involved in the retaliation.”

The law:

Personal involvement can be established by showing that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference … by failing to act on information indicating that unconstitutional acts were occurring.

Applying the law, the court concluded that “[w]hile the complaint alleges that plaintiff informed Bass of the initial discriminatory conduct, there are no allegations that he made her aware of the escalation in Fidos’ conduct after his complaint to her or after the filing of his EEOC complaint” and therefore dismissed plaintiff’s § 1981 retaliation claim against Bass (with leave to replead).

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