Gomez v. The City of New York, No. 1:2009cv00620 - Document 39 (E.D.N.Y. 2012)
Court Description: ORDER granting 27 Motion for Summary Judgment on plaintiff's federal claims and dismissing without prejudice plaintiff's state law claims. Ordered by Senior Judge I. Leo Glasser on 4/30/2012. (Green, Dana)
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Gomez v. The City of New York Doc. 39 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x DEYANIRA GOMEZ, Plaintiff, Mem orandum an d Order 0 9 Civ. 620 - against THE CITY OF NEW YORK Defendant. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Deyanira Gom ez (“plaintiff” or “Gomez”), a form er police officer with the New York City Police Departm ent (“NYPD”), filed this action against the City of New York (“NYC”) alleging that NYPD, on the basis of her gender and national origin, discrim inated against her, subjected her to a hostile work environm ent, failed to prom ote her, an d retaliated against her in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 (“§ 1981”) & 1983 (“§ 1983”); the New York State Hum an Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, et seq. (McKinney 20 10 ); and the New York City Hum an Rights Law (“NYCHRL”), N.Y.C. Adm in. Code § 8 -50 2. Before the Court is the defendant’s Motion for Sum m ary J udgm ent pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendant’s m otion is GRANTED. D ISCU SSION The following facts are drawn from the Am ended Com plaint an d defendant’s Rule 56.1 Statem ent, which is unopposed by plaintiff for the purposes of this m otion. See Defen dant’s Rule 56.1 Statem ent of Undisputed Facts (“Def.’s R. 56.1”). Gom ez, a Dom inican-Am erican wom an, becam e a police officer with the NYPD in February 1994. 1 Dockets.Justia.com Am ended Com plaint dated May 12, 20 0 9 (“Am . Com pl.”) ¶ 9. On or about Decem ber 13, 20 0 3, Gom ez took Exam ination No. 3560 in order to qualify for prom otion to Sergeant in the NYPD. Id. ¶ 14. In 20 0 4, she was notified by the Departm ent of Citywide Adm inistrative Services that she had passed the exam and was on the Eligible List for prom otion. Id. ¶ 15. On April 23, 20 0 4, Gom ez was assigned to the 75th Precinct. Def.’s R. 56.1 ¶ 7. She testified that begin ning in October 20 0 4, she was sexually harassed by a supervisor, Sergeant Lee Chong (“Lee Chong”). Def.’s R. 56.1 ¶¶ 8-43. In J uly 20 0 5, she com plained about the harassm ent to the New York Police Departm ent Office of Equal Opportunity. Id. ¶¶ 33, 43. Gom ez alleges that Lee Chong and several other officers in the 75 th Precinct retaliated against her for the com plaints that she m ade by, am ong other things, giving her unfavorable assignm ents, failing to pay her overtim e, and issuing disciplinary letters. Id. ¶¶ 33, 72-10 8, 162-72. At her request, on February 6, 20 0 6 Gom ez was transferred from the 75th Precin ct to the 23 rd Precinct. Def.’s R. 56.1 ¶¶ 84, 10 9. She alleges that after she transferred to the 23 rd Precinct, she was again subject to further harassm ent and retaliation for her com plaints again st Lee Chong. Id. ¶¶ 125-51, 18 4. Gom ez also alleges she was subject to discrim ination due to m ale officers’ stereotypes about the sexual prom iscuity of wom en from the Dom inican Republic. Id. ¶¶ 112-19. Gom ez was subject to disciplinary charges for three instances of insubordination and three instances of unauthorized use of pepper spray on suspects (one of whom was a handcuffed high school truant). Id. ¶¶ 172-73, 176. These charges were substantiated after an investigation by the Civilian Com plaint Review Board (“CCRB”) and hearings 2 were held before the Assistant Deputy Com m ission for Trials Claudia Daniels-DePeyster on May 30 , 20 0 6 and J une 16, 20 0 6. Id. ¶¶ 174-76. On October 30 , 20 0 6, Gom ez was found guilty of two of the three insubordination charges and two of the three charges for unauthorized use of pepper spray. Id. ¶ 176. On or about August 31, 20 0 6 Gom ez received a letter from the NYPD Em ployee Managem ent Division that she had not been selected for appointm ent to sergeant. Am . Com pl. ¶ 17. Plaintiff alleges that the disciplinary charges that were brought against her were in retaliation and were deliberately kept pending so that her application for prom otion would be denied. Id. ¶ 18; Def.’s R. 56.1 ¶ 158. She claim s that denial was in accordance with a rule that if charges were pending against an applicant, that applicant would not be prom oted. Def.’s R. 56.1 ¶¶ 157-161. Plaintiff has presented no eviden ce of the existence of this rule. JU RISD ICTION This Court has origin al jurisdiction over plain tiff’s § 1981 and § 1983 claim s, claim s arising under federal law. The Court has supplem ental jurisdiction over plaintiff’s state law discrim ination claim s. Federal courts have supplem ental jurisdiction over “all other claim s that are so related to claim s in the action within such original jurisdiction that they form part of the sam e case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A state law claim form s part of the sam e controversy if the state and federal claim “derive from a com m on nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130 , 16 L.Ed.2d 218 (1966). Here, the parties and alleged events and injuries that form the 3 grounds for plaintiff’s federal claim s are identical to those that form the grounds for plaintiff’s state law claim s. D ISCU SSION I. Su m m ary Ju d gm e n t Stan d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to an y m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). As an initial m atter, the m oving party has the burden of dem onstrating that no genuine dispute of m aterial fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 10 6 S. Ct. 1348, 8 9 L. Ed. 2d 538 (1986). “A party asserting that a fact cannot be or is genuinely disputed m ust support the assertion by: (A) citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations (including those m ade for purposes of the m otion only), adm issions, interrogatory answers, or other m aterials; or (B) showing that the m aterials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce adm issible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Once the m oving party has m et this burden, the opposing party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts. . . . [T]he nonm oving party m ust com e forward with specific facts showing that there is a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 20 0 2) (quoting Matsushita, 475 U.S. at 586-87 (em phasis in original)). “If a party fails to properly support an assertion of fact or fails to properly address another party’s 4 assertion of fact as required by Rule 56(c), the court m ay . . . grant sum m ary judgm ent if the m otion and supporting m aterials — including the facts considered undisputed — show that the m ovant is entitled to it.” Fed. R. Civ. P. 56(e). The Court is com pelled to draw all reasonable inferences in favor of the nonm oving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a reasonable jury could find in favor of the non-m oving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 2510 , 91 L. Ed. 2d 20 2 (1986). However, “[i]f the eviden ce is m erely colorable, or is not significantly probative, sum m ary judgm ent m ay be granted.” Anderson, 477 U.S. at 249-50 (citations om itted). “[T]he m ere existen ce of som e alleged factual dispute between the parties” alone will not defeat a properly supported m otion for sum m ary judgm ent. Id. at 247-48 . “Thus, the nonm oving party m ay not rest upon m ere conclusory allegations or denials but m ust set forth ‘concrete particulars’ showing that a trial is needed.” R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting S.E.C. v. Res. Autom ation Corp., 58 5 F.2d 31, 33 (2d Cir. 1978)). II. Statu te o f Lim itatio n s Defendant first argues plaintiff’s claim s are barred by the applicable statute of lim itations. This argum ent is not grounds for sum m ary judgm ent. The statute of lim itations for plaintiff’s § 1981 claim s is four years. See J ones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383-84, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (20 0 4); J am es v. Countrywide Financial Corp., _ _ F. Supp. 2d _ _ _ , 20 12 WL 35992, at *16-18 (E.D.N.Y. Feb. 2, 20 12) (discussing the effect of the Suprem e Court’s decision in J ones). The 5 statute of lim itations for § 1983, NYSHRL, and NYCHRL claim s is three years. Cloverleaf Realty of N. Y., Inc. v. Town of Wawayanda, 572 F.3d 93, 94 (2d Cir. 20 0 9) (statute of lim itations for § 1983 actions filed in New York is three years); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 20 0 7) (statute of lim itations for NYSHRL and NYCHRL is three years). The Com plaint in this action was filed on February 13, 20 0 9. Therefore, plaintiff is precluded from pursuing any claim s under § 1981 for discreet acts that occurred prior to February 13, 20 0 5. Plaintiff is precluded from pursuing any claim s under § 1983, the NYSHRL, or NYCHRL for discrete acts that occurred prior to February 13, 20 0 6. The only discrete adverse em ploym ent action alleged by plaintiff is the failure to prom ote her on August 31, 20 0 6. See Am . Com pl. ¶ 17. This adverse action falls well within the applicable statutes of lim itations, as do substantially all acts of discrim ination, harassm ent, and retaliation occurring after plaintiff’s transfer to the 23 rd Precinct. The untim ely allegations m ade in plaintiff’s depositions or elsewhere, though not actionable in them selves, m ay be cited as evidence in support of plaintiff’s tim ely claim s. See Flynn v. N.Y. State Div. of Parole, 620 F. Supp. 2d 463, 483 (S.D.N.Y. 20 0 9) (fem ale parole officer could only recover for discrete acts of discrim ination falling within the statute of lim itations but tim e-barred discrim inatory acts were still adm issible as “background eviden ce.” (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 113, 112 S. Ct. 20 61, 153 L. Ed. 2d (20 0 2); Glynn v. Cnty. of Suffolk, 50 F. App’x 58, 58 -59 (2d Cir. 20 0 2))). Finally, plaintiff’s hostile work environm ent claim s are not subject to these statutes of lim itations because “[t]he ‘unlawful em ploym ent practice’ . . . cannot be said 6 to occur on any particular day. . . . Such claim s are based on the cum ulative effect of individual acts.” Morgan, 536 U.S. at 115 (citation om itted). For plaintiff’s hostile work environm ent claim s, “[p]rovided that an act contributing to the claim occurs within the filing period, the entire tim e period of the hostile environm ent m ay be considered by a court for the purposes of determ ining liability.” Id. at 117. Because plaintiff alleges she was subjected to a hostile work environm ent at the 23 rd Precinct, these claim s are also tim ely. III. Plain tiff’s § 19 8 1 Claim s Fail as a Matte r o f Law Sum m ary judgm ent m ust be granted on plain tiff’s § 1981 claim s because plaintiff fails to state a claim as a m atter of law. Plaintiff alleges that she was subject to discrim ination, a hostile work environm ent, retaliation, and was not prom oted due to her gender or national origin. It is well-established that § 1981 does not recognize claim s based on gender or national origin. See Anderson v. Conboy, 156 F.3d 167, 171 (2d Cir. 1998) (citations om itted). Plaintiff argues that her Dom inican origin should be considered an ethnicity or race. In support, plaintiff cites to St. Francis College v. Al-Khazaji, 481 U.S. 60 4, 10 7 S. Ct. 20 22, 95 L. Ed. 2d 582 (1987), a case that addressed whether a plaintiff of Arabian descent was of a different race from —and could bring a § 1981 racial discrim ination claim against—the Caucasian defendants. The Court determ ined that racial discrim ination claim s pursuant to § 1981 encom pass m ore than broad historic categories such as “Black” and “White” and include discrim ination between ethnicities or other “identifiable classes of persons who are subjected to intentional discrim in ation solely because of their ancestry or ethnic characteristics.” Id. at 613. However, it is not 7 in dispute whether plaintiff’s Dom inican ancestry could be grounds for a § 1981 racial discrim ination claim . The fact is that Gom ez, unlike the plaintiff in Al-Khazaji, has not pled a racial discrim ination claim and—as Al-Khazaji itself m ade clear—it rem ains settled precedent that national origin claim s are not recognized under § 1981. See 40 8 U.S. at 613. Plaintiff also urges the Court to construe her claim as one for racial discrim ination because, “the pleadings and answers to the interrogatories m ake it very clear that she is not only alleging discrim ination on the basis of her place of origin . . . .” Pl.’s Mem . at 4. On the contrary, nowhere in plaintiff’s pleadings does she identify or refer to her race or racial discrim in ation, and plaintiff specifically an d repeatedly identifies her claim s as based on national origin and gender, not race. Any am ount of legal research would have revealed that such claim s are not cognizable. Plaintiff filed suit m ore than three years ago and was given an opportunity to am end the Com plaint, yet did not correct this deficiency. It is well-settled that a party is not entitled to am end its com plaint through statem ents m ade in m otion papers or interrogatories. See, e.g., Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (party not entitled to am end the com plaint through statem ents m ade in m otion papers); In re Agape Litigation, 773 F. Supp. 2d 298, 316 (E.D.N.Y. 20 11) (“[A] plaintiff cannot am end the com plaint through briefs and affidavits. . . .” (quotation and citation om itted)). For the foregoing reasons, plaintiff has failed to state a claim as a m atter of law and defendant’s m otion for sum m ary judgm ent m ust be granted as to plaintiff’s § 1981 claim s. 8 IV. Plain tiff’s § 19 8 3 Claim s Fail as a Matte r o f Law Sum m ary judgm ent m ust also be granted on plaintiff’s § 1983 claim s because plaintiff has failed to present any evidence (or even to plead) she was deprived of her rights as a result of an official policy or custom , an essential elem en t of her claim s. A m unicipality, such as NYC, is liable under § 1983 when, by im plem entation of “a policy statem ent, ordinance, regulation, or decision officially adopted and prom ulgated by that [m unicipality’s] officers” or through practices that are so “perm anent and well settled” as to constitute governm ental “custom ,” it deprives the plaintiff of a constitutional right. Monell v. Dep’t of Social Services, 436 U.S. 658, 690 , 98 S. Ct. 20 18, 56 L. Ed. 2d 611 (1978). The City m ay not be held liable under § 1983 on a theory of vicarious liability. Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable solely because it em ploys a tortfeasor—or, in other words, a m unicipality cannot be held liable under § 198 3 on a respondeat superior theory.” (em phasis in origin al)). Moreover, “a direct casual link between a m unicipal policy or custom and the alleged constitutional deprivation” m ust be established. City of Canton v. Harris, 489 U.S. 378, 385, 10 9 S. Ct. 1197, 10 3 L. Ed. 2d 412 (1989). Here, plaintiff’s Am ended Com plaint alleges defendant has a “long history” of discrim ination and failing to protect fem ale m inority officers who com plain of discrim ination. See Am . Com pl. ¶¶ 11-13. Nowhere does plaintiff identify any alleged policy, custom , or practice of the City that caused her injuries. In contrast, defendant has presented evidence that plaintiff’s allegation, if true, violated longstanding policies of NYC. See Waters Decl. Ex. K. Plaintiff has not addressed this issue in her brief and m akes no attem pt to present any evidence in support of her claim s. “Mere conclusory 9 allegations or den ials cannot by them selves create a genuine issue of m aterial fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 20 10 ) (citation om itted). Because plaintiff has failed to set out specific facts showin g a genuine issue for trial and no reasonable jury could find in plaintiff’s favor, sum mary judgm ent m ust also be granted as to plaintiff’s § 1983 claim s. V. Plain tiff’s State Law Claim s Having granted sum m ary judgm ent to the defendant on plaintiff’s federal claim s, the Court declines to exercise supplem ental jurisdiction over plaintiff’s NYSHRL and NYCHRL claim s. A court m ay declin e to exercise supplem ental jurisdiction over a pendent state law claim if the court has dism issed all federal claim s over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3); Carnegie– Mellon Univ. v. Cohill, 48 4 U.S. 343, 350 & n. 7, 10 8 S. Ct. 614, 98 L. Ed. 2d 720 (1988) (“[I]n the usual case in which all federal-law claim s are elim inated before trial, the balance of factors to be considered under the [supplem ental] jurisdiction doctrine—judicial econom y, convenience, fairness, and com ity—will point toward declin ing to exercise jurisdiction over the rem ain ing state-law claim s.”). Accordingly, Gom ez’s state law claim s are dism issed without prejudice. 10 CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgm ent is GRANTED. The Court declin es to exercise supplem ental jurisdiction over plaintiff’s NYSHRL and NYCHRL claim s and those claim s are dism issed without prejudice. The Clerk of the Court is directed to enter judgm ent dism issing the Am ended Com plaint an d closing this case. SO ORD ERED . Dated: Brooklyn, New York April 30 , 20 12 _ _ _ _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser United States District J udge 11
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