Dingle v. City of New York et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
ROBERT DINGLE, JR.,
Plaintiff,
-against-
CITY OF NEW YORK et al.,
Defendants.
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MEMORANDUM & ORDER
24-CV-4026 (EK)(CHK)
ERIC KOMITEE, United States District Judge:
Plaintiff Robert Dingle, an employee of the New York
City Department of Sanitation, brings discrimination claims
against the City of New York and certain other defendants.
Proceeding pro se, he asserts causes of action under Title VII
of the Civil Rights Act and the Age Discrimination in Employment
Act. 	He also brings several constitutional claims.
For the reasons that follow, the complaint is
dismissed in its entirety with leave to file an amended
complaint.1
1 The full list of defendants is: the City of New York; Sylvia O. Hinds-
Radix, in her official capacity as Corporation Counsel of the City of New
York; the New York Department of Sanitation (“DSNY”); Reginald Timothee, in
his official capacity as Assistant Commissioner, DSNY; Anthony Mason, in his
official capacity as Deputy Director, DSNY; Joe Wint, DSNY employee; Steven
Harte, Deputy Commissioner — Support Services, DSNY; Frank Depalo, DSNY
employee; Joe Cicervo, Supervisor, DSNY; Dominic Dirico, Supervisor, DSNY;
Daniel Rosenblum, DSNY employee; Inspector General, Department of
Investigation; Steven Tinkler, Investigator, DSNY; and James Murphy,
Inspector, Department of Investigation. 	The City argues in their motion to
dismiss that no defendant was properly served apart from the City, DSNY, and
Mr. Wint. 	On February 5, the Court referred the service issue to Judge
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Background
The underlying facts are taken from the form complaint
that Dingle filed and the attached exhibits and are assumed to
be true. 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plaintiff is a sixty-four-year-old auto mechanic at
the New York City Department of Sanitation (“Sanitation
Department” or “DSNY”). 	Compl. 9, 16, ECF No. 1.2 	The complaint
does not explicitly allege indicate his race, but we read the
context to suggest that he is Black. 	See, e.g., id. at 17.
The factual allegations in plaintiff’s form complaint
are not entirely clear. 	Dingle references a fire in an unnamed
DSNY facility. 	A colleague of Dingle’s — defendant Joe Wint —
told a supervisor that he “came back to the mechanics bay” to
observe Dingle “sitting in the bay, where the fire was, with a
highly flammable piece of diesel equipment” in the vicinity.
Id. at 16. 	Wint also told the supervisor — defendant Anthony
Mason — that Dingle had not “notic[ed] nor smell[ed] the fire”
because he “had earbuds in both ears and . . . was on his
tablet.” 	Id.
Dingle claims that Wint’s statement was false, id. at
15, but that it induced Mason to hold a “fake disciplinary
Kaminsky for a Report and Recommendation. 	Judge Kevin Kerrigan of the New
York State Supreme Court was previously a defendant, but was dismissed in
September 2025.
2 Page numbers refer to ECF pagination of the complaint and attached
documents.
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hearing,” and that everyone who participated in or knew of the
hearing “failed to report it to the police or the inspector
general.” 	Id. at 19. 	At the hearing, “Director Mason denied
[Dingle’s] request to bring Mr. Wint into the room so [he] could
have an opportunity to confront [his] accuser.” 	Id. at 16. 	No
disciplinary report issued, but Dingle was transferred to
another location on April 4, 2023. 	Id. at 16-17. 	Dingle calls
this transfer a demotion and says he “suffered a reduction in
pay.” 	Id. at 15.
At his new facility, Dingle was placed with a new
colleague whose surname is Rosenblum. 	Rosenblum asked about
Dingle’s criminal record, asked whether Dingle’s “father beat
[his] mother,” and said he “disagreed with the way black men
raised their sons.” 	Id. at 17. 	Dingle believes DSNY placed him
with Rosenblum, who “has had problems with everyone he has
worked with,” to “try and get [Dingle] to lose [his] temper and
justify firing [him].” 	Id.
Dingle brings federal claims for age- and race-based
discrimination and hostile work environment under Title VII and
the ADEA; and claims under the Fifth, Sixth, and Fourteenth
Amendments to the U.S. Constitution, which we construe as
brought under Section 1983. 	Id. at 8-9. 	He also brings
analogous state and city claims. 	Id. 	He seeks monetary relief.
Id. at 10-12. 	He filed a notice of claim in June 2023 and
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received a right-to-sue letter in March 2024, but the letter is
not attached to the complaint. 	Id. at 10.3
Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient “to state a claim to
relief that is plausible on its face.” 	Twombly, 550 U.S. at
570.4 	A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	The Court must
accept all factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiff’s favor. 	See Lundy
v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d
Cir. 2013). 	However, the Court is “not bound to accept as true
a legal conclusion couched as a factual allegation.” 	Iqbal, 556
U.S. at 678.
Pro se complaints are “held to less stringent
standards” than pleadings drafted by attorneys, and the Court
will read a pro se complaint liberally and interpret it as
raising the strongest claims it suggests. 	Erickson v. Pardus,
3 The City indicates a different date, January 4, 2024. 	Defs.’ Mem. 4,
ECF No. 28. 	However, they do not argue that the filing of this action was
untimely.
4 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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551 U.S. 89, 94 (2007). 	Still, a pro se plaintiff is not exempt
from “compliance with relevant rules of procedural and
substantive law.” 	Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983). 	Thus, a pro se complaint must still plead sufficient
facts to “state a claim to relief that is plausible on its
face.” 	Twombly, 550 U.S. at 570.
Discussion
A. 	Claims Against DSNY
The City asks that the Sanitation Department be
dismissed because it is not a suable entity. 	Section 396 of the
City Charter provides that “[a]ll actions and proceedings for
the recovery of penalties for the violation of any law shall be
brought in the name of the city of New York and not in that of
any agency, except where otherwise provided by law.” 	N.Y.C.
Charter ch. 17 § 396. 	This language means that City departments
“lack the capacity to be sued.” 	Ximines v. George Wingate High
Sch., 516 F.3d 156, 159-60 (2d Cir. 2008). 	Accordingly, DSNY
will be dismissed with prejudice. 	Antrobus v. City of New York,
No. 19-CV-6277, 2021 WL 848786, at *3 (E.D.N.Y. Mar. 5, 2021).
B. 	Employment Discrimination Claims
1. 	Title VII and ADEA Claims Against Wint
Neither Title VII nor the ADEA provides for individual
liability. 	Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir.
2009) (Title VII); Martin v. Chemical Bank, 129 F.3d 114 (2d
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Cir. 1997) (ADEA); Guerra v. Jones, 421 F. App’x 15, 17 (2d Cir.
2011) (Title VII and ADEA). 	Therefore, these claims are
dismissed against defendant Joe Wint.
2. 	Title VII Claim Against the City
Dingle brings a claim for race discrimination under
Title VII. 	To survive the motion to dismiss, he must plausibly
allege “(1) that []he is a member of a protected class, (2) that
[]he was qualified for the position []he sought, (3) that []he
suffered an adverse employment action, and (4) can sustain a
minimal burden of showing facts suggesting an inference of
discriminatory motivation.” 	Littlejohn v. City of New York, 795
F.3d 297, 311 (2d Cir. 2015). 	His claim fails on the fourth
prong.5
The one adverse employment action Dingle alleges is
his transfer, which he claims was accompanied by a reduction in
pay. 	Compl. 15. 	The race-based comments Dingle references
occurred after that transfer, when Dingle was assigned to work
alongside Rosenblum. 	“[R]emarks made by someone other than the
person who made the decision adversely affecting the plaintiff
may have little tendency to show that the decisionmaker was
5 He does not indicate his race, but he implies that he is Black.
“Where a plaintiff fails to allege that he is a member of a protected class,
he fails to allege a Title VII claim.” Powell v. Lab Corp., No. 17-CV-3632,
2018 WL 6814371, at *8 (E.D.N.Y. Dec. 27, 2018), aff’d, 789 F. App’x 237 (2d
Cir. 2019). 	Typically, this omission would be sufficient grounds to dismiss.
However, there are additional bases for dismissal. 	Should Dingle file an
amended complaint, he should allege his race explicitly.
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motivated by the discriminatory sentiment expressed in the
remark.” 	Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115
(2d Cir. 2007); Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171,
182 (2d Cir. 1992) (remarks qualify as “stray” when made “by
persons who are not involved in the pertinent decisionmaking
process”); Soloviev v. Goldstein, 104 F. Supp. 3d 232, 249
(E.D.N.Y. 2015) (granting motion to dismiss where the plaintiff
“fail[s] to allege that any of the named [i]ndividual . . .
[d]efendants or anyone with control over the decision to fire
[the plaintiff] made [the alleged] comments”). 	The complaint
does not suggest that Rosenblum had any involvement in the
transfer. 	Thus, his comments do not give rise to an inference
of discrimination, and Dingle alleges no other facts that would
support a minimal inference of race-based discrimination.
3. 	ADEA Claim Against the City
The ADEA makes it unlawful for an employer to
“discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 	29 U.S.C. § 623(a)(1). 	To
establish a prima facie case under the ADEA, “a plaintiff with
an age discrimination claim must show (1) that []he was within
the protected age group, (2) that []he was qualified for the
position, (3) that []he experienced adverse employment action,
and (4) that the action occurred under circumstances giving rise
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to an inference of discrimination.” 	Bucalo v. Shelter Island
Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012).
On this claim, too, the allegations are insufficient
to give rise to an inference of age discrimination. 	“While a
claim made under the ADEA need not contain every supporting
detail, it must at least inform the court and the defendant[s]
generally of the reasons the plaintiff believes age
discrimination has been practiced.” 	Dugan v. Martin Marietta
Aerospace, 760 F.2d 397, 399 (2d Cir. 1985). 	Here, the sole
allegation related to age is that, during the disciplinary
hearing, Director Mason said “that Mr. Wint who is 34 years old,
claimed that [Dingle], 64 years old[,] tried to pick a fight
with him.” 	Compl. 16. 	Apart from this passing reference to the
participants’ ages, the complaint makes no allegation that Wint
— or anyone else — commented on Dingle’s age or that their
dispute over the fire related in any way to age. 	Thus, this
claim must be dismissed.
C. 	Hostile Work Environment Claims
The City moves to dismiss Dingle’s hostile work
environment claims because he does not allege severe or
pervasive harassment and he fails to connect the slights at
issue to his membership in a protected class. 	To establish a
hostile work environment under Title VII, Dingle must show that
his “workplace [was] permeated with discriminatory intimidation,
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ridicule, and insult . . . that [was] sufficiently severe or
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” 	Schiano v. Quality
Payroll Sys., Inc., 445 F.3d 597, 604 (2d Cir. 2006). 	Incidents
must be “more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.”
Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001). 	For
a single event to suffice, it must be “extraordinarily
severe.” 	Banks v. Gen. Motors, LLC., 81 F.4th 242, 263 (2d Cir.
2023). 	And, critically, the “mistreatment at work” must be
because of the plaintiff’s protected characteristic. 	Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001). 	The Supreme Court
has cautioned that “Title VII . . . does not set forth a general
civility code for the American workplace.” 	Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
1. 	Plaintiff Fails to State an Age-Based Hostile
Work Environment Claim
The complaint lacks any facts that would give rise to
a plausible age-based hostile work environment claim. 	“Isolated
acts, unless very serious, do not meet the threshold of severity
or pervasiveness.” 	Alfano v. Costello, 294 F.3d 365, 374 (2d
Cir. 2002). 	Dingle’s sole allegation regarding his age, noted
above, does not qualify as severe or pervasive. 	Therefore, the
age-based hostile work environment claim is dismissed.
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2. 	Plaintiff Fails to State a Race-Based Hostile
Work Environment Claim
Dingle does allege some comments that expressly
involve race and others that may imply a connection to race. 	In
addition to the comments quoted above, see supra at p. 3; Compl.
17, Dingle says Rosenblum spent “months antagonizing and
denigrating” him. 	Compl. 17.
Racially charged comments will form the basis of a
hostile work environment claim when they are sufficiently
frequent or severe. 	Schwapp v. Town of Avon, 118 F.3d 106, 112
(2d Cir. 1997). 	When such comments are spoken by a colleague of
the same (or lower) rank, however, they are generally
inactionable without some reporting. 	“When harassment is
perpetrated by the plaintiff’s coworker[], an employer will be
liable . . . if the plaintiff demonstrates that the employer
either provided no reasonable avenue for complaint or knew of
the harassment but did nothing about it.” 	Rojas v. Roman Cath.
Diocese of Rochester, 660 F.3d 98, 107 (2d Cir. 2011). 	But a
remark that was “uttered by a co-worker and never reported to
management” cannot be the basis of a hostile work environment
claim. 	Doroz v. Tect Utica Corp., 669 F. App’x 28, 29 (2d Cir.
2016). 	Dingle has not alleged that he reported Rosenblum’s
comments to anyone, or that DSNY lacked any reasonable avenue
for complaint.
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Even if Dingle had reported the alleged comments, they
would be insufficient to give rise to liability. 	The only
offensive statement that is overtly connected to race is that
Rosenblum disagreed with “the way black men raised their sons.”
Compl. 17. 	On its own, this statement is insufficient to
survive the motion to dismiss, because plaintiffs generally must
allege “more than a few isolated instances of racial enmity.”
Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986).
Dingle does not explicitly connect Rosenblum’s other statements
(for example, concerning spousal abuse) to Dingle’s race, and
statements cannot form the basis of a hostile work environment
claim when they “lack a linkage” to the “claimed ground of
discrimination.” 	Alfano, 294 F.3d at 377. 	Regardless, the
three comments at issue are insufficiently frequent or severe to
support liability.
For the foregoing reasons, Dingle’s hostile-work-
environment claim must be dismissed.
D. 	Fifth, Sixth, and Fourteenth Amendment Claims
The defendants move to dismiss Dingle’s Fourteenth
Amendment due process claim because Dingle, as a provisional
employee, had no property interest in his position at DSNY and
no rights under New York Civil Service Law Section 75. 	The City
also moves to dismiss Dingle’s Fifth and Sixth Amendment claims
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as inapplicable in this case. 	We construe these claims as
brought under 42 U.S.C. § 1983.
Municipalities are generally only liable under Section
1983 if the plaintiff shows that a municipal policy or custom
caused the deprivation of his rights. 	See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690-91 (1978). 	At the same time, “a
single action by a decisionmaker who possesses final authority
to establish municipal policy with respect to the action ordered
is sufficient to implicate the municipality in the
constitutional deprivation for the purposes of § 1983.” 	Amnesty
Am. v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004).
We assume, for the purposes of the instant motion, that Director
Mason had final decisionmaking authority.
However, the complaint fails to allege any particular
process that Dingle was not afforded. 	“A procedural due process
claim consists of two elements: (i) deprivation by state action
of a protected interest in life, liberty, or property, and (ii)
inadequate state process.” 	Reed v. Goertz, 598 U.S. 230, 236
(2023). 	Dingle has not alleged the deprivation of a property
interest, because “personnel decisions short of termination do
not constitute a deprivation of a property interest cognizable
under the Fourteenth Amendment.” 	Mirabilio v. Reg’l Sch. Dist.
16, 761 F.3d 212, 214 (2d Cir. 2014). 	Dingle asserts that the
transfer was a violation of his liberty as well. 	Compl. 15.
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Employment actions, however, implicate a liberty interest only
if they “effectively put a significant roadblock in [an]
employee’s continued ability to practice his or her profession.”
Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623,
631 (2d Cir. 1990). 	The lateral transfer does not implicate any
liberty interest, since Dingle continued in his profession.
Dingle’s claims brought under the Fifth Amendment’s
Due Process Clause and Sixth Amendment’s Confrontation Clause
must also be dismissed. 	The Fifth Amendment “only applies to
actions by the Federal Government.” 	Castanza v. Town of
Brookhaven, 700 F. Supp. 2d 277, 288 (E.D.N.Y. 2010); Cassidy v.
Scoppetta, 365 F. Supp. 2d 283, 286 (E.D.N.Y. 2005) (dismissing
Fifth Amendment claim because neither federal government nor any
employee thereof was named). 	Dingle fails to allege federal
action and thus the claim must be dismissed with prejudice. 	His
confrontation claim will also be dismissed with prejudice since
this is a civil case and “the Sixth Amendment right of
confrontation does not apply in . . . civil action[s].” 	Barclay
v. New York, 602 F. App’x 7, 13 (2d Cir. 2015).
E. 	Claims Against Non-Appearing Defendants
Dingle also brings his Title VII and Section 1983
claims against a host of other individuals who have not appeared
in the action. 	Claims against non-appearing defendants will be
dismissed sua sponte when they are frivolous. 	Joseph v.
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Springer Nature, No. 20-CV-4672, 2021 WL 1372952, at *9
(S.D.N.Y. Apr. 12, 2021), aff’d, No. 21-959-cv, 2021 WL 6105369
(2d Cir. Dec. 21, 2021); Fitzgerald v. First E. Seventh St.
Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (per curiam)
(“[I]n order to preserve scarce judicial resources . . .
district courts may dismiss a frivolous complaint sua sponte.”).
Dingle’s Title VII and ADEA claims against the individual
defendants qualify as such because they are not proper
defendants to these claims. 	E.g., Evans v. Port Auth. of N.Y. &
N.J., No. 00-CV-5753, 2003 WL 1842876, at *1-2 (S.D.N.Y. Apr. 1,
2003).
The reasons that support dismissing the Section 1983
claims against the appearing defendants would also support
dismissing the non-appearing defendants. 	Springer, 2021 WL
1372952, at *9. 	On the Fourteenth Amendment claim, Dingle has
not articulated a valid property or liberty interest, nor
indicated what process he was deprived of. 	On the Fifth
Amendment claim, none of the non-appearing defendants are
federal employees. 	The Sixth Amendment claim remains
inapplicable. 	Therefore, the federal claims are dismissed
against these individual defendants as well.
Conclusion
For the foregoing reasons, the federal claims must be
dismissed. 	Having dismissed the federal claims, we decline to
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exercise supplemental jurisdiction over the state- and city-law
claims. 	28 U.S.C. § 1367(c)(2); see Royal Canin U.S.A., Inc. v.
Wullschleger, 604 U.S. 22, 31-32 (2025).
Still, given his pro se status, Dingle will be granted
twenty-eight days from the date of this order to amend the
complaint. 	Any amended complaint will completely replace, not
supplement, the prior complaint. 	Therefore, the amended
complaint must include all claims and factual allegations
against all defendants, must be captioned an “Amended
Complaint,” and should bear the same docket number as this
Memorandum and Order.
If Dingle fails to file an amended complaint within
the time allowed or cure the deficiencies identified in this
order, the claims will be dismissed with prejudice, and judgment
shall enter. 	The Clerk of Court is respectfully directed to
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mail a copy of this order to plaintiff and to note the mailing
on the docket.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	February 10, 2026
Brooklyn, New York
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