Thompson v City of New York

[*1] Thompson v City of New York 2015 NY Slip Op 51860(U) Decided on December 16, 2015 Supreme Court, New York County Kotler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 16, 2015
Supreme Court, New York County

Michael Thompson

against

The City of New York et al.



102258/11
Lynn R. Kotler, J.

Plaintiff, a police officer, seeks to recover for alleged employment discrimination. Plaintiff has asserted causes of action sounding in discrimination, retaliation and hostile work environment in violation of state and city human rights law. Defendants move for summary judgment in their favor. Plaintiff opposes the motion. For the reasons that follow, the motion is granted.

Facts

The following facts are not in dispute. Plaintiff self-identifies as "black" and Jamaican. Plaintiff was born in Jamaica, moved to the United States in or about 1981, and is now a U.S. citizen. Plaintiff joined the NYPD as a probationary police officer in 1998, and was assigned to the 114th Precinct. In 2003, plaintiff was charged with "engag[ing] in a scheme constituting a systemic ongoing course of conduct with the intent to defraud" (the "2003 Charges"). The scheme allegedly involved asking investors to pay taxes/fees in order to have funds released and promising certain rates of return on trading. After a trial, the 2003 Charges were dismissed. At his deposition, plaintiff characterized this as a "Nigerian scam" and stated that he believed this was the result of stereotyping.

Plaintiff also testified at his deposition that he had a skin condition which required that he wear a beard. He claims that this skin condition is very common among African-American men. Plaintiff further explained that having a beard is a "problem" unless he had a doctor's note. In [*2]2004, plaintiff was charged with "alter[ing] a doctor's note to reflect a valid 2003 date, when in fact said note was valid for 2002" (the "2004 Charges"). After a trial, plaintiff was found guilty of the 2004 charges and sanctioned 20 vacation days.

In or about October 2004, plaintiff was transferred from the 114th Precinct to the Bronx Courts Sec-tion. On March 1, 2006, plaintiff was charged with "curs[ing] and yell[ing] at Sergeant Julio Morales, a supervisor in the Bronx Courts Section, after being "questioned regarding his assigned post" (the "2006 Charges"). Plaintiff was found guilty of the 2006 Charges after a hearing and was sanctioned 30 vaca-tion days. In June 2006, due to his disciplinary history, plaintiff was placed into Level II performance monitoring, which he completed in June 2008.

Meanwhile, in 2005, plaintiff was a part of a class action lawsuit brought by the Latino Officers As-sociation ("LOA") alleging employment discrimination against the NYPD. Also, in 2005, plaintiff filed a complaint with the NYPD's Office of Equal Employment Opportunity ("OEEO") alleging that Morales and other supervisors in the Bronx Courts Section were harassing him because plaintiff "beat his charges and specification case" and because he was involved in the LOA lawsuit. By letter dated January 23, 2006, the OEEO advised plaintiff that his complaint was closed because he failed to respond to two phone calls and three written letters from OEEO investigators concerning his allegations.

In February 2006, plaintiff filed another OEEO complaint alleging that Morales was "harassing him for no reason" and that Lieutenant John Clifford of the Bronx Courts Section told a sergeant to prepare a negative performance evaluation for plaintiff because Clifford was a friend of Morales. This second OEEO complaint was closed because plaintiff failed to demonstrate retaliation.

In July 2006, plaintiff contacted the Internal Affairs Bureau ("IAB") because Clifford changed plaintiff's assignment from the first floor cell area to the third floor cell area in retaliation for plaintiff's prior OEEO complaint. IAB referred this complaint to OEEO, which closed this complaint because plaintiff's allegation "[wa]s not corroborated by the facts revealed in the review of the roll calls." In October 2006, plaintiff again contacted IAB with a complaint which was referred to OEEO. OEEO closed this complaint for failure to raise an equal employment opportunity ("EEO") issue.

In September 2007, plaintiff was transferred from Bronx Courts to the 32nd Precinct. Plaintiff testi-fied at his deposition that he was given posts "that no one wants," that another officer parked near plain-tiff's car so that plaintiff couldn't get out, that his locker was put into the hallway, and that stickers and notes were posted on his locker and car. Plaintiff further testified that he wasn't given several details be-cause of Deputy Inspector Kevin Catalina, the commanding officer at the precinct, and that officers from the Bronx Courts section told officers from the 32nd Precinct to "watch out" for plaintiff. When asked why he thought he was being discriminated against at the 32nd Precinct, plaintiff replied that "[i]t was the race, definitely."

In 2007, Clifford informed IAB that plaintiff had told another police officer at the Bronx [*3]Courts Section that plaintiff threatened to pour gasoline over Clifford's head and light him on fire. In February 2008, plaintiff contacted OEEO claiming that Clifford's allegations to IAB were in retaliation for plain-tiff's misconduct complaint against Clifford in 2006. The OEEO closed this complaint because there were no EEO issues.

In 2008, plaintiff received a command discipline, which is a written warning from a supervisor, for not shaving. The command discipline was dismissed after plaintiff gave a copy of his doctor's note to the Integrity Control Officer. Also in 2008, plaintiff was issued a "warn and admonish" for: [1] failing to re-lieve officers assigned to the sky watch post in a timely manner as directed by the supervisor; [2] failing to report to the desk officer as directed by the supervisor; [3] making false entries in the Interrupted Pa-trol Log; [4] failing to notify the dispatcher of the time and location of meal; [5] taking an extended meal break without authority; and [6] failing to report to the desk officer upon leaving the station house. At his deposition, plaintiff explained that he was late because his assigned officer had "female problems" and he had to wait for her. Plaintiff did not lose any time for receiving the warn and admonish and did not challenge it. However, plaintiff did file a complaint with the OEEO against the Lieutenant who gave him the "warn and admonish" but this complaint was closed because there were no EEO issues.

Plaintiff took a civil service examination in 2008 to become promoted to sergeant. He received list number 251. The Career Advancement Review Board ("CARB") is convened to determine whether members of the service who have passed the written examination for promotion, but have disciplinary is-sues in their careers, possess the character and judgment necessary to become a supervisor. Catalina sub-mitted a letter to CARB dated October 30, 2008 wherein he did not recommend plaintiff for the promo-tion due to: "slightly below average arrest and summons activity", two command disciplines, and that plaintiff "tends to blame outside sources for his shortcomings and seems to have difficulty relating to and getting along with his supervisors and peers."

During his appearance before CARB, plaintiff was given an opportunity to explain his prior discipli-nary charges and then was asked questions by the Board. Plaintiff testified that he was asked questions about the 2004 Charge, and explained it was just a misunderstanding. Plaintiff testified that he was asked about the 2006 Charge and he claimed to the Board that he was not discourteous to Morales. Plaintiff testified that he was not asked questions about the 2003 Charge. The three members of the Board did not recommend plaintiff's promotion. Meanwhile, another African-American police officer who appeared before CARB that day was promoted to sergeant and plaintiff did not know the names of anyone with more serious disciplinary histories who were promoted to sergeant. Plaintiff did however request that he be put on a list of candidates who were passed over for promotion but "never heard any-thing back."

Also in May 2008, plaintiff filed a complaint in Supreme Court, Bronx County, against defendants City of New York, Raymond Kelly, Neldra Zeigler, Gary Bettello and Julio Morales, alleging discrimination and retaliation in violation of the New York State Human Rights Law ("SHRL") and City Human Rights Law ("CHRL"). On January 15, 2009, Justice Larry [*4]Schachner granted defendants' motion to dismiss on default. On September 21, 2009, plaintiff filed a complaint in the United States District Court, Eastern District, against defendants City of New York, Rafael Pineiro, Anthony Izzo, Robert Giannelli, Kevin Catalina, John McCormick, "Clifford", Gary Bettelo and Julio Morales, alleging discrimination, retaliation, and a hostile work environment in violation of 42 USC § 1981, 42 USC § 1983 and the SHRL and CHRL. Defendants moved to partially dismiss on the ground that the Bronx Su-preme Court judgment barred all claims that accrued prior to May 19, 2008. The parties stipulated to dismissing all claims that accrued prior to May 19, 2008 and engaged in discovery with respect to plaintiff's remaining claims.

On February 24, 2011, plaintiff requested that the court dismiss his federal law claims with preju-dice so that plaintiff could pursue his state and city human rights law claims in state court. On February 22, 2011, plaintiff commenced the instant action. On August 11, 2011, the parties agreed in this action to dismiss with prejudice all claims that accrued before May 19,2008 and to dismiss with prejudice defend-ants Bettello and Morales.

In March 2013, plaintiff received a "warn and admonish" from Sergeant Verbugge for "fail[ing] to take domestic violence photos at the scene of a domestic violence incident" in connection with an incident in December 2012. Plaintiff claims that he was disciplined because of a prior incident where the plaintiff told another officer that Verbugge was a liar. Plaintiff also claims that while he is required to take photos if there is an injury, he did not observe any injuries during the December 2012 incident.

Finally, plaintiff testified that in January 2013, he applied for a lateral transfer to the NYPD's Intel-ligence Division to be then-Comptroller John Liu's driver. Plaintiff claims that he was told the position was no longer available because the Intelligence Division knew about plaintiff's disciplinary history. Plaintiff also claims that a non-party named Al Thompson informed him that because of his lawsuit, then-Commissioner Kelly would not consider him for a position in the Intelligence Division.

Arguments

Defendants argue that it is entitled to summary judgment dismissing plaintiff's discrimination, retal-iation and hostile work environment claims. Specifically, defendants argue that plaintiff's claim that he was denied a promotion to sergeant on the basis of his race fails because CARB "was well-justified in unanimously recommending to Commissioner Kelly against plaintiff's promotion to sergeant." Defend-ants have provided the affidavit of Robert J. Giannelli, who served on the CARB board which interviewed plaintiff's request for promotion to sergeant. Giannnelli states that he recommended that plaintiff not be promoted or reviewed again for promotion based on his review of plaintiff's file which showed the 2003 and 2006 Charges and based upon his interview of plaintiff.

Defendants further maintain that plaintiff cannot demonstrate that he was retaliated against beyond his self-serving claim that the officers from the Bronx Courts Section called/warned the 32nd Precinct about plaintiff. Otherwise defendants maintain that his failed [*5]attempt to become Comptroller Liu's driver was not the result of retaliation. Finally, defendants argue that there is no evidence of "severe or pervasive" racial harassment sufficient to state a claim for hostile work environment, let alone survive summary judgment.

Plaintiff, in turn, argues that he has viable claims. He maintains that he is the member of a protected class and suffered an adverse employment action. He argues that Catalina would often treat black officers disparately when compared to white officers and ignored things like when "KKK" was written on a black female officer's work. Plaintiff also maintains that he was not promoted to sergeant because of ra-cial discrimination and not because of his prior disciplinary history. Plaintiff also maintains that Catalina told him that he would be reevaluated by CARB three months after his initial interview in connection with the sergeant promotion and that CARB's determination was pretextual. These claims, plaintiff argues, raise a triable issue of fact sufficient to defeat the motion.

Discussion

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Ayotte v. Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1977]). The court's function on these motions is limited to "issue finding," not "issue determination" (Sillman v. Twentieth Century Fox Film, 3 NY2d 395 [1957]).

A prima facie case of discrimination requires a showing by the plaintiff that: [1] he is a member of a protected class; [2] he was qualified to hold the position; [3] he was terminated from employment or suf-fered another adverse employment action; and [4] the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination." (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). Only if these elements are satisfied will there be a rebuttable presumption of discrimination which the employer can then rebut by proving a legitimate, independent, non-discriminatory reason for the adverse employment action (id. citing Ferrante v. American Lung Associa-tion, 90 NY2d 623 [1997]; see also McDonnell Douglas Corp. v. Green, 411 US 792 [1973]). If the em-ployer is successful, the burden then shifts back to plaintiff who has to prove that the reason being offered is a pretext, and therefore false.

Here, the first element and third elements are not in dispute. What is in dispute, however, is whether plaintiff was qualified to hold the position of sergeant and whether the denial of said promotion oc-curred under circumstances giving rise to the inference of racial discrimination. At the outset, as defend-ants correctly contend, allegations concerning occurrences prior to May 19, [*6]2008 are not actionable here in light of the parties' stipulation dated August 11, 2011 dismissing these claims. Turning to whether plaintiff should have been promoted to sergeant, on this record, defendants have established that plain-tiff was not qualified for the promotion and plaintiff has failed to raise a triable issue of fact. While plaintiff passed a civil service exam, this did not automatically render plaintiff qualified for the promotion. Indeed, due to his disciplinary history, plaintiff appeared before CARB like any other candidate for promotion would have been required to do. Plaintiff has failed to raise a triable issue of fact as to how his disciplinary record and interview with CARB should have led to a different result.

Even if plaintiff could establish the second element, plaintiff has failed to demonstrate circumstances suggesting he was not promoted due to his race. Plaintiff is correct that since CARB is set up to eval-uate whether candidates should be promoted despite their disciplinary history, having a disciplinary his-tory cannot, standing alone, disqualify a candidate for promotion. However, he fails to acknowledge that CARB was entitled to conclude based upon plaintiff's disciplinary history, his personnel record, the non-recommendation by his commanding officer, and his demeanor during the course of the interview, that plaintiff was not an appropriate candidate for a supervisory position. As for the 2003 Charge, while plaintiff contends that this is based upon racial stereotyping, there is no dispute that he was not ques-tioned by CARB about this charge and there is no proof that this charge bore negatively upon plaintiff's candidacy for sergeant. Plaintiff's argument that the 2004 Charge is akin and/or evidence of discrimina-tion because he shaves due to a skin condition common to African Americans is unavailing. Plaintiff was not penalized for having a skin condition or a beard, but rather, because he was found guilty of changing the date on his doctor's note. The court notes that plaintiff does not contend that the regulation concerning facial hair is not uniformly enforced across all those similarly situated to plaintiff.

Indeed, it is undisputed that an African-American who appeared before CARB the same day as plaintiff was promoted to sergeant, and plaintiff cannot provide any specific examples of how CARB and/or defendants' treated non-black candidates differently from black candidates.

To the extent that plaintiff argues that other acts or occurrences post-May 19, 2008 give rise to adverse actions, these claims fail. In order to constitute an adverse action, the action must result in a mate-rially adverse change in the terms and conditions of employment. Plaintiff's remaining complaints, to wit, the "warn and admonish" plaintiff received for failing to return to his post after a meal and the change of his tour from midnight to day, amount to a series of interpersonal conflicts with supervisors and other officers and do not rise to the level of an adverse action (see Forrest, supra citing Fridia v. Henderson, 2000 WL 1772779 [SDNY 2000]). As for actions which post-date the filing of the summons and complaint in this action, these claims are not properly asserted before the court and the court therefore declines to address them on the merits.

In light of the foregoing, defendants are entitled to summary judgment dismissing plaintiff's discrimination claim.

Plaintiff's retaliation claim arises from the series of complaints he made to OEEO and [*7]IAB, and to the extent that these claims fall within the window of claims that could be actionable here, plaintiff has failed to establish that the purported retaliation resulted in an adverse action. The only potentially adverse action here, non-promotion to sergeant, was not based upon his OEEO and IAB complaints. Plaintiff has failed to raise a triable issue of fact that CARB and its Board members who interviewed him knew about these complaints, and if they didn't know about plaintiff's complaints, they couldn't have retaliated against him because of them. Accordingly, plaintiff's retaliation claim is dismissed. Therefore, plaintiff's state law retaliation claims must be dismissed.

Retaliation claims under the CHRL, however, do not need flow from adverse actions or materially adverse changes in the terms and conditions of employment. However, even under the broader standard, plaintiff has failed to show that he was retaliated against because his claims fit within workplace realities. That he was disciplined and that he was not given certain assignments does not give rise to actionable retaliation because a reasonable jury could not conclude from the most favorable reading of the rec-ord here that plaintiff was retaliated against based upon the complaints he made (see i.e. Williams v. New York City Hous. Auth., 61 AD3d 62 [1st Dept 2009]).

Finally, plaintiff's hostile work environment must also be dismissed. Plaintiff has wholly failed to show that there was such severe and pervasive conduct based upon his race in his work environment at the 32nd Precinct which altered the conditions of his employment and created an abusive working envi-ronment (see i.e. Forrest, supra at 310). As defendants correctly point out, plaintiff's complaints largely consists of a series of discrete employment decisions in the guise of a hostile work environment claim. Accordingly, this claim is also dismissed.

Finally, defendants seek dismissal of all claims against the individual defendants. That aspect of the motion must also be granted, since plaintiff's claims have been dismissed.

Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted in its entirety and this case is dismissed.

Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly rejected and this constitutes the decision and order of the court.

Dated: December 16, 2015

New York, New York

So Ordered:

_______________________

Hon. Lynn R. Kotler, J.S.C.