Smith v. City of N.Y.
Smith v. City of N.Y.
Opinion of the Court
Plaintiff Cyress Smith sued the City of New York and Inspector John Cosgrove of the New York City Police Department ("NYPD") for race-based discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); the New York *329State Human Rights Law ("NYSHRL"),
BACKGROUND
Plaintiff, who is African American, has been a member of the NYPD since 1997. See Defs.' 56.1 Stmt. ¶¶ 1-2; Pl.'s 56.1 Resp. ¶¶ 1-2. He has been diagnosed with obstructive sleep apnea and other respiratory problems; those diagnoses are the basis for his alleged disability. See Defs.' 56.1 Stmt. ¶¶ 2-3; Pl.'s 56.1 Resp. ¶¶ 2-3. He asserts that his respiratory ailments were caused by his participation in the NYPD's search-and-recovery efforts following the September 11, 2011 attacks. See Pl.'s 56.1 Resp. ¶ 3; Nwokoro Decl. Ex. 5.
Between 2006 and 2016, Plaintiff was assigned to NYPD's Performance Monitoring Unit ("PMU"). See Pl.'s Mem. of Law at 2; Defs.' 56.1 Stmt. ¶ 5; Pl.'s 56.1 Resp. ¶ 5. Cosgrove served as commanding officer of the PMU between June 2015 and September 2016. See Defs.' 56.1 Stmt. ¶¶ 5-6; Pl.'s 56.1 Resp. ¶¶ 5-6. Prior to Cosgrove's arrival, Plaintiff helped train police officers to monitor and evaluate other officers; after Cosgrove became commanding officer, however, Cosgrove relieved Plaintiff of those duties and, instead, assigned Plaintiff to deliver mail and to other tasks. See Defs.' 56.1 Stmt. ¶¶ 30-32, 34; Pl.'s 56.1 Resp. ¶¶ 30-32, 34.
Until 2015, Plaintiff had consistently received ratings of 4.0 (out of 5.0) on his annual performance evaluations, representing a rating of "highly competent."
*330Pl.'s 56.1 Resp. ¶¶ 15, 18-19, 21, 23-24. Beginning in 2015, however, Plaintiff's conduct deteriorated, causing him to be disciplined on several occasions. In three instances, Plaintiff received disciplinary warnings, known as command discipline ("CD"), for making unauthorized changes to his shift schedule (known as "tour changes"). See Defs.' 56.1 Stmt. ¶¶ 44-51, 56-57; Pl.'s 56.1 Resp. ¶¶ 44-51, 56-57; Cosgrove Decl. Exs. A, B, I. Specifically, Plaintiff was accused of making handwritten changes to posted shift schedules without first obtaining authorization from a supervisor, as NYPD procedures allegedly require.
During this time, Plaintiff also received CD for insubordination and disruptiveness. See Defs.' 56.1 Stmt. ¶ 57; Pl.'s 56.1 Resp. ¶ 57; Cosgrove Decl. Ex. A at 3-5. In one instance, Plaintiff shouted at and used profanity with a supervisor when the supervisor questioned Plaintiff's tour changes. See Cosgrove Decl. Ex. B. In another instance, Plaintiff shouted and waved his arms at two officers because he had not been told that a subordinate had momentarily stepped out of the office. See Cosgrove Decl. Ex. A at 5. And in two other instances, Plaintiff shouted at and threatened to suspend a fellow officer in front of her co-workers, bringing her to tears. See Cosgrove Decl. Ex. H.
Also during this time, Plaintiff's attendance was poor. Due to an "excessive" number of sick days that Plaintiff took "in comparison to the majority of the [police] force," in late 2014, Plaintiff was designated as a "Chronic Sick: Category A" employee. Carter Decl. Ex. F; see also Defs.' 56.1 Stmt. ¶ 68; Pl.'s 56.1 Resp. ¶ 68. According to Plaintiff, his absences were due to the respiratory ailments that he contracted working on post-9/11 search-and-recovery efforts. See Pl.'s 56.1 Resp. ¶¶ 68-69. Plaintiff twice applied to have his respiratory ailment classified as a line-of-duty injury ("LODI"); Plaintiff argues that had his ailment been classified as a LODI, his absences "would not have counted against him" in his attendance record.
Due to Plaintiff's disciplinary and attendance problems, Plaintiff received ratings of 3.5 and 2.0 on his 2015 and 2016 performance evaluations, respectively, a marked drop from the 4.0 ratings he had previously received. See Defs.' 56.1 Stmt. ¶¶ 26-27; Pl.'s 56.1 Resp. ¶¶ 26-27; Carter Decl. Ex. D at 35-45. These evaluations stated that Plaintiff had "extremely poor" judgment, as he had "unprofessionally reprimanded subordinate members of the command in public" and had spoken "to subordinates in an unprofessional manner." Carter Decl. Ex. D at 43. The evaluations stated that Plaintiff's behavior had "disrupted command operations."
In March 2016, Plaintiff filed a complaint with the NYPD's Office of Equal Employment Opportunity ("EEO"), and, in May 2016, he filed a complaint with the *331U.S. Equal Employment Opportunity Commission ("EEOC"); both alleged discrimination based on race and disability. See Defs.' 56.1 Stmt. ¶¶ 85, 88; Pl.'s 56.1 Resp. ¶¶ 85, 88.
In September 2016, due to Plaintiff's "repeated disruptive behavior, poor work performance, and persistent refusal to abide by Department guidelines," Cosgrove requested that Plaintiff be transferred to a different unit. Cosgrove Decl. Ex. J at 1. Later that month, Plaintiff was transferred from the PMU to the 42nd Precinct, where he remained assigned for about a year. See Defs.' 56.1 Stmt. ¶¶ 59-60, 62; Pl.'s 56.1 Resp. ¶¶ 59-60, 62. At the 42nd Precinct, Plaintiff was assigned to be a "desk officer," a position that required "a high degree of concentration and attention to detail," Am. Compl. ¶ 38, and which was located in an "open and dusty area."
In October 2017, Plaintiff was transferred to the NYPD's "Queens VIPER" and "Queens Property Clerk" Divisions, where he remained until December 2017. See Defs.' 56.1 Stmt. ¶ 63; Pl.'s 56.1 Resp. ¶ 63. Plaintiff was then transferred to the "VIPER 20" unit in Manhattan, where he remains assigned. See Defs.' 56.1 Stmt. ¶ 64; Pl.'s 56.1 Resp. ¶ 64.
Plaintiff alleges discrimination and retaliation based on race in violation of Title VII, the NYSHRL, and the NYCHRL. See Am. Compl. ¶¶ 48-52, 62-67. Plaintiff also alleges discrimination based on disability, in violation of the ADA, the NYSHRL, and the NYCHRL, see
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett,
*332A district court is "under no obligation to engage in an exhaustive search of the record" when considering a motion for summary judgment. Jones v. Goord ,
II. Defendants' Motion for Summary Judgment Is Granted as to Plaintiff's Claims for Race-Based Discrimination
A. Plaintiff's Title VII and NYSHRL Claims
1. The Applicable Law
Discrimination claims brought pursuant to Title VII and the NYSHRL are analyzed using "the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green ,
To establish a prima facie case of discrimination, a plaintiff must show: (1) that he is a member of a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Holcomb v. Iona Coll. ,
2. Plaintiff Has Not Established a Prima Facie Case of Discrimination
a. Plaintiff Has Not Shown That He Suffered an Adverse Employment Action
Defendants do not dispute that Plaintiff has satisfied the first two elements of his prima facie case. See Defs.' Mem. of Law at 8. As to the third element, an adverse employment action is a "materially adverse change in the terms and conditions of employment." Weeks v. N.Y. State (Div. of Parole) ,
Plaintiff asserts that Defendants committed adverse employment actions when they:
• Transferred him out of the PMU to other NYPD units;
• Gave him with poor annual evaluations in 2015 and 2016;
• Issued CDs against him;
• Relieved him of training responsibilities and assigned him to mail duty;
• Failed to classify his respiratory ailment as a LODI;
• Failed to offer him a "discretionary promotion"; and
• Denied him overtime pay.
See Pl.'s Mem. of Law at 3-4, 11-12. As a matter of law, none of these actions constitutes an adverse employment action.
(i) Transfers
A transfer is an adverse employment action only "if it results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career." Galabya ,
Plaintiff's only argument that his transfer to the 42nd Precinct was an adverse employment action is that, at the 42nd Precinct, he was assigned to the position of "desk officer," which was located in a "dusty" area of the Precinct. Pl.'s Mem. of Law at 6; see also id. at 11. Plaintiff's assignment to desk duty, however, was made by officers within the 42nd Precinct, whom Plaintiff has not alleged discriminated against him. There is no indication that assignment to a "dusty" area was a condition of the initial transfer decision itself; to the contrary, it is undisputed that Cosgrove did not know where Plaintiff would be transferred when he requested that Plaintiff be removed from the PMU.
As to Plaintiff's transfers to the VIPER units, Plaintiff asserts, ipse dixit , that "[c]lose to 100% of re-assignments or transfers to the VIPER units are punitive or disciplinary in nature." Pl.'s Mem. of Law at 6 (citing Pl.'s Decl. ¶¶ 9-10); see also id. at 11; Pl.'s 56.1 Resp. ¶¶ 58, 61. Plaintiff offers no further details as to why transfer to these units is "punitive" or "disciplinary," nor does he explain with any specificity how such a transfer had a *334negative impact on his career advancement. Absent further explanation, Plaintiff's bare assertion is insufficient for a reasonable juror to conclude that the VIPER transfers were adverse employment actions.
(ii) Evaluations
Negative performance evaluations qualify as adverse employment actions only if they are "accompanied by negative consequences, such as demotion, diminution of wages, or other tangible loss." Siddiqi v. N.Y.C. Health & Hosp. Corp. ,
Plaintiff concedes that his negative evaluations did not affect his rate of pay or otherwise result in any immediate, tangible consequences, see Defs.' 56.1 Stmt. ¶ 29; Pl.'s 56.1 Resp. ¶ 29; rather, Plaintiff argues that his negative evaluation ratings were adverse actions because they caused him to be placed into the NYPD's "Performance Monitoring Program," see Pl.'s Mem. of Law at 4-5, 11. NYPD officers are placed into this Program if they are the subject of negative performance evaluations, civilian complaints, civil-rights lawsuits, or other misconduct. See Nwokoro Supp. Decl. Ex. 10. The Program is divided into three tiers of increasing severity. See
"Level II" and "Level III" of the Program entail more serious forms of monitoring; officers in those tiers may be ineligible for overtime, night shifts, and certain anti-crime duties. See Nwokoro Supp. Decl. Ex. 10. That level of monitoring might constitute an adverse employment action. But Plaintiff has presented no evidence that even remotely suggests that he was placed into Level II or III of the Program. See Pl.'s Mem. of Law at 4-5, 11 (citing Pl.'s Dep. at 104). Accordingly, Plaintiff has not established that his placement in the Program constituted an adverse employment action.
*335Plaintiff also argues that his negative evaluations made it difficult for him to obtain a "discretionary promotion" within the PMU and that they generally "placed his career in jeopardy," as they rendered him "that much closer to being dismissed." Pl.'s Mem. of Law at 11; see also id. at 5. As the Court will explain, Plaintiff offers no evidence that he was eligible for a "discretionary promotion" or even that such promotions existed during the relevant time period. See infra Part II.A.2.a.vi. Furthermore, "[i]nformal discipline, criticism, or counseling," while unpleasant and perhaps undesirable from a career standpoint, "does not constitute an adverse act if no change in working conditions accompanies it." Rasko v. N.Y.C. Admin. for Children's Servs. ,
Because Plaintiff offers no other evidence on this point, as a matter of law, his negative evaluations do not constitute adverse employment actions.
(iii) Command Discipline
Like a negative evaluation, a "notice of discipline" is not an adverse employment action unless it "create[s] a materially adverse change in [the plaintiff's] working conditions." Weeks ,
Plaintiff provides no evidence that his CDs carried any tangible negative consequences. See Pl.'s Mem. of Law at 4-5, 11. Indeed, the penalty for many of Plaintiff's CDs was simply to receive a warning letter instructing him to review proper police procedures.
(iv) Change in Work Assignment
"[T]he receipt of undesirable assignments must be accompanied by a material detriment to an employee's working conditions to constitute an adverse employment action." Ward v. Shaddock , No. 14-CV-7660,
Plaintiff points to no evidence that changes in his work assignment materially worsened his work conditions. See Pl.'s 56.1 Resp. ¶ 33; Pl.'s Mem. of Law at 3, 11. Plaintiff argues that his reassignment from training to mail duty was an adverse action because mail duty "is a function usually assigned to police cadets," a position lower in rank than that held by Plaintiff. See Pl.'s Mem. of Law at 3; Pl.'s 56.1 Resp. ¶ 33. Plaintiff, however, offers no detail as to how performing mail duty resulted in tangibly worse working conditions than conducting training; accordingly, Plaintiff's argument amounts to nothing more than subjective dissatisfaction with his work assignment. That is not sufficient to establish an adverse employment action.
(v) LODI
Plaintiff asserts that if his respiratory ailment had been classified as a LODI, then his numerous sick days "would not have counted against him" in his attendance record. Pl.'s 56.1 Resp. ¶ 68; see also Pl.'s Mem. of Law at 3, 11. From that, he seems to assert that the decision not to so classify his ailment constituted an adverse employment action.
The record is not entirely clear as to the criteria for or the consequences of LODI status. Accepting Plaintiff's assertions as true and viewing the evidence in the light most favorable to him, if his respiratory ailment had been classified as a LODI, he would have been entitled to take administrative leave for absences related to this condition, rather than needing to use sick leave. See Pl.'s Mem. of Law at 3, 11.
Numerous courts in this District have held that denial of administrative leave is not an adverse employment action, even when the denial causes the employee to use allotted sick days. See, e.g., Krishnapillai ,
*337Plaintiff offers no evidence that the denial of his request for his respiratory ailment to be classified as a LODI carried any tangible consequences, other than that it caused him to use sick days and, consequently, that he had a poor attendance record.
(vi) Discretionary Promotions
Plaintiff asserts that his supervisors did not offer him a "discretionary promotion" or a "special assignment," which, he argues, could have resulted in him receiving higher pay. See Pl.'s Mem. of Law at 3-4, 11; Pl.'s Dep. at 50-52, 181-82. In order to show that a denial of a promotion is an adverse employment action, a plaintiff must "allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely assert[ ] that on several occasions she or he generally requested promotion." Brown v. Coach Stores, Inc. ,
Plaintiff has presented no evidence that he ever applied for a "discretionary promotion" or that such "promotions" even exist. During his deposition and in his response to Defendants' motion, Plaintiff failed to identify a single person who ever received such a promotion during his time at the PMU.
(vii) Overtime
Plaintiff also argues that Defendants discriminated against him by denying him overtime. See Pl.'s Mem. of Law at 4, 6-7. This allegation does not appear in Plaintiff's Amended Complaint; Plaintiff raised it for the first time in his response to Defendants' motion for summary judgment. See Am. Compl.; Pl.'s Mem. of Law at 4, 6-7. Because "[a] party may not use his or her opposition to a dispositive motion as a means to amend the complaint," Shah v. Helen Hayes Hosp. ,
Even if this argument had been properly pleaded, it would fail, as Plaintiff proffers no evidence that he was eligible for overtime or that he ever requested overtime. See Pl.'s Mem. of Law at 4. The only evidence that Plaintiff points to is his own deposition testimony, which is conclusory and devoid of any specifics. See Pl.'s Dep. at 254-56. Accordingly, Plaintiff has failed to offer sufficient evidence that he was ever denied overtime, let alone that the denial constituted an adverse employment action.
In short, Plaintiff has failed to establish that he suffered any adverse employment actions within the meaning of the anti-discrimination laws.
b. Plaintiff Has Failed to Raise an Inference of Discriminatory Intent
Even if Plaintiff had presented evidence that he was subjected to an adverse employment action, summary judgment for Defendants would still be appropriate because Plaintiff has presented no evidence that raises an inference of discrimination, a required element of Plaintiff's prima facie case. "An inference of discrimination can arise from circumstances including, but not limited to, 'the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the [adverse employment action].' " Littlejohn ,
(i) Plaintiff's Evidence of White Comparators
Plaintiff attempts to raise an inference of discrimination by arguing that white officers in his unit received higher performance ratings, did not receive CDs, and were not subjected to the other purported adverse employment actions discussed above. See Pl.'s Mem. of Law at 5-7, 12-14, 20; Pl.'s 56.1 Stmt. ¶ 43; Pl.'s Decl. ¶ 16. If a plaintiff relies on evidence that he was treated less favorably than employees outside of his protected group to raise an inference of discriminatory intent, he must establish that he was "similarly situated in all material respects" to those employees. Mandell v. Cty. of Suffolk ,
Plaintiff offers no evidence-whatsoever-to suggest that the white employees to whom he refers were similarly situated to him in any material respect. Specifically, Plaintiff offers no evidence that the white employees to whom he points engaged in the same insubordinate and disruptive conduct that he did, that they had similar work performance, or that they were otherwise subject to similar "workplace conditions and evaluative standards." Graham ,
Plaintiff also argues that the discipline he received for making unauthorized changes to his tours of duty was unfair, as white employees routinely made changes to their tours in the same manner without being disciplined. See Pl.'s Mem. of Law at 12-13; Pl.'s 56.1 Stmt. ¶ 43; Pl.'s Decl. ¶ 16. In support of this argument, Plaintiff points to a shift schedule containing numerous handwritten changes to the shifts of white employees. See Pl.'s Mem. of Law at 12-13 (citing Nwokoro Decl. Ex. 3). Plaintiff argues that those employees were not disciplined for making those handwritten changes, while he was. See
*340(ii) Plaintiff's Evidence of Remarks and Comments
Plaintiff also attempts to raise an inference of discrimination based on remarks that Cosgrove and other supervisors made to him. See Pl.'s Mem. of Law at 3, 13; Pl.'s 56.1 Resp. ¶ 58. Plaintiff asserts that when Cosgrove first became a supervisor in the PMU, he stated that he "was not going to take it easy" on Plaintiff if Plaintiff refused to transfer to a different unit. Pl.'s Mem. of Law at 3 (citing Pl.'s Dep. at 113; Pl.'s Decl. ¶ 13). This remark, however, bears no indicia of race-based animus. Indeed, in his deposition, Plaintiff explained that the remark related to Plaintiff's prior CD for insubordination-not to Plaintiff's race or any other protected characteristic. See Pl.'s Dep. at 113 ("[Cosgrove] was aware of ... the pending disciplinary charges and he was not going to go easy on me with ensuing [sic ] this penalties [sic ] coming out of that.... He told me if I didn't transfer, he wasn't going to go easy on me."). Given this context, the fact that the remark is facially race-neutral, and the fact that Plaintiff offers no further evidence of racial animus, no reasonable juror could interpret this remark as evincing an intent to discriminate. See Henry v. Wyeth Pharm., Inc. ,
Plaintiff also attempts to raise an inference of discrimination based on his appeal of his 2013 evaluation. See Pl.'s Mem. of Law at 5. In October 2014, Plaintiff successfully appealed this evaluation's rating of 4.0, raising it to 4.5. See Nwokoro Decl. Ex. 6. Plaintiff argues that in the course of changing Plaintiff's rating, the appeals officer found that the evaluation had been "based upon other than performance factors"; in Plaintiff's view, this raises "a strong inference" that the lower-than-warranted evaluation had been based on race.
Plaintiff offers no other evidence to raise an inference of racial discrimination. Accordingly, Plaintiff has failed to establish a prima facie case.
3. Defendants Have Offered Non-Discriminatory Explanations for Some of Their Actions, and Plaintiff Has Not Shown that the Explanations Are Pretextual
Because Plaintiff has failed to establish a prima facie case, the Court need not consider the non-discriminatory explanations that Defendants have provided for their actions. Nevertheless, Defendants have proffered such explanations. "[O]nce the employer articulates a non-discriminatory reason for its actions," the presumption created by the prima facie case "drops out of the picture." James v. N.Y. Racing Ass'n ,
As to Plaintiff's transfer out of the PMU, his poor evaluations, and his numerous CDs, Defendants have offered legitimate, non-discriminatory reasons for their conduct. Defendants argue that Plaintiff's severe disciplinary problems, including his unauthorized tour changes, attendance issues, and disruptive behavior, made these actions appropriate. See Defs.' Mem. of Law at 18, 20-21. This explanation is consistent with the contemporaneous documentation relating to those actions. See Carter Decl. Ex. D at 37-46; Cosgrove Decl. Exs. A, G, H, I, J.
Plaintiff has provided no evidence to suggest that those reasons are pretextual, other than to argue that his changes to his tours of duty were consistent with NYPD procedures. See Pl.'s Mem. of Law at 13, 22; Pl.'s 56.1 Resp. ¶ 45. As an initial matter, this argument relates to only one of the three explanations for Plaintiff's evaluations, CD, and transfers; as to the other two explanations-Plaintiff's poor attendance and disruptive conduct-Plaintiff does not even argue that the explanations are pretextual. As to the changes to his tour of duty, Plaintiff testified that, for years, officers were allowed to make handwritten changes to their schedules without first obtaining supervisory approval. See *342Pl.'s Dep. at 120-29. Regardless of whether that testimony was accurate, Plaintiff was warned repeatedly not to change his tour of duty without prior approval. See Defs.' 56.1 Stmt. ¶ 46 (Wittmann warned Plaintiff not to change his tour of duty without prior approval of a supervisor); id. ¶¶ 49-50 (an NYPD disciplinary office issued a memorandum to Plaintiff describing proper tour-change procedures); id. ¶ 54 (Plaintiff received a formal letter instructing him to review the applicable sections of the NYPD's Patrol Guide); Cosgrove Decl. Ex. A at 3 (command discipline for an unauthorized tour change noting that Plaintiff had received written instructions on tour-change procedures). Plaintiff does not explain why it was permissible for him to make unauthorized changes to his tour of duty after being instructed repeatedly not to do so. Indeed, in most instances, Plaintiff complied with NYPD procedures and properly requested authorization before making handwritten changes to his schedule; in only a few instances did Plaintiff deviate from those procedures, causing him to be disciplined. See Cosgrove Decl. Ex. A at 3 (command discipline stating that "[Plaintiff] is aware that the practice in this Section has been to obtain authorization from a supervisor prior to ... submission [of a tour change]. [Plaintiff] demonstrated such awareness one week earlier when he requested authorization from the Executive Office prior to submitting Tour Changes."). Plaintiff's failure to follow repeated instructions relating to changes to his tour of duty was a legitimate, non-discriminatory reason for Defendants' actions, and Plaintiff offers no evidence from which a reasonable factfinder could conclude that this reason is pretextual.
Because Plaintiff did not establish a prima facie case and, even if he had, Defendants presented unrebutted, non-discriminatory reasons for their actions, Defendants' motion for summary judgment must be granted as to Plaintiff's claims for racial discrimination under Title VII and the NYSHRL.
B. Plaintiff's NYCHRL Claim
Although "courts must analyze NYCHRL claims separately and independently from any federal and state law claims," a plaintiff bringing a claim under the NYCHRL must still "show[ ] that the conduct [complained of] is caused by a discriminatory motive." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. ,
As the Court has discussed, Plaintiff has offered no evidence that raises a reasonable inference that any of Defendants' actions were motivated by an intent to discriminate on the basis of race. See supra Parts II.A.2.b, II.A.3. Thus, for the reasons discussed above, Defendants' motion for summary judgment is granted as to *343Plaintiff's claims for race-based discrimination under the NYCHRL.
III. Defendants' Motion for Summary Judgment Is Granted in Part and Denied in Part as to Plaintiff's Claims for Disability-Based Discrimination
A. The Motion Is Granted as to Plaintiff's ADA and NYSHRL Claims
Claims for disability-based discrimination brought pursuant to the ADA and the NYSHRL are subject to the same McDonnell Douglas burden-shifting framework as claims for race-based discrimination. See Sista ,
Defendants do not dispute the first three elements of Plaintiff's prima facie case. See Defs.' Mem. of Law at 14. As to the fourth element, Plaintiff alleges no adverse actions in support of his disability-based claims other than those asserted in support of his racial-discrimination claims. See Pl.'s Mem. of Law at 15-16. As the Court has explained, as a matter of law, none of those actions constitutes an adverse employment action. See supra Part II.A.2.a. Accordingly, Plaintiff has not established a prima facie case of disability-based discrimination under the ADA or the NYSHRL.
Even if Plaintiff had offered evidence of adverse employment actions, Plaintiff has failed to present evidence that raises an inference of discriminatory intent as to almost all of the actions about which he complains. Plaintiff relies on the same bare-bones, conclusory allegations of supposedly "similarly situated" comparators and supposedly "derogatory" remarks for his disability-based claims as he does for his race-based claims. See Pl.'s Mem. of Law at 15-16. For the reasons the Court has discussed previously, these allegations fail to raise an inference of discriminatory intent. See supra Part II.A.3.
As to one of Defendants' actions, however, Plaintiff has presented sufficient *344evidence for a reasonable juror to find that it was based, at least in part, on his disability. Plaintiff's 2015 and 2016 evaluations pointed to his poor attendance as one reason for his low ratings. See Cosgrove Decl. Ex. D at 37-46. "Where [an] employer was aware that an employee's absences were related to a disability ... the employee's attendance record may be an impermissible pretext for the employee's disability." Morris v. City of New York ,
Notwithstanding the limited evidence of discriminatory intent relating to his poor evaluations, Plaintiff's ADA and NYSHRL claims for disability-based discrimination fail because poor evaluations are not "adverse employment actions" within the meaning of those two statutes. See supra Part II.A.2.a.ii; Davis ,
B. The Motion Is Denied as to a Portion of Plaintiff's NYCHRL Claim, but the Court Will Decline to Exercise Supplemental Jurisdiction Over It
Unlike its federal and state counterparts, "the NYCHRL does not require that an employment action taken against a plaintiff be 'materially adverse' in order for the plaintiff to establish a prima facie case of discrimination." Gorman v. Covidien, LLC ,
Plaintiff has offered no evidence of disability-based discrimination with respect to any of Defendants' actions, other than the evaluations.
The Court declines to exercise supplemental jurisdiction over the part of this claim that survives. A district court "may decline to exercise supplemental jurisdiction over a claim" once it "has dismissed all claims over which it has original jurisdiction."
For all these reasons, the Court declines to exercise supplemental jurisdiction over the limited part of Plaintiff's NYCHRL claim for disability-based discrimination that has survived summary judgment. That claim is DISMISSED WITHOUT PREJUDICE.
IV. Defendants' Motion for Summary Judgment Is Granted as to Plaintiff's Claims for Race-Based Retaliation
A. The Applicable Law
Retaliation claims under Title VII, the NYSHRL, and the NYCHRL are evaluated under the McDonnell Douglas burden-shifting standard. See Hicks v. Baines ,
As to the fourth prong of the prima facie case, "proof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Hicks ,
B. Application to This Case
It is undisputed that Plaintiff engaged in protected activity when he filed a discrimination complaint with the NYPD's EEO on March 14, 2016, and when he filed a charge of discrimination with the U.S. EEOC on May 10, 2016. See Pl.'s Mem. of Law at 17; Defs.' Mem. of Law at 15; Carter Decl. Exs. L, N. Plaintiff asserts that Defendants retaliated against him by: declining to classify his respiratory ailment as a LODI, accusing him of threatening a fellow officer, issuing CDs against him, and transferring him to the 42nd Precinct and to other NYPD units. See Pl.'s Mem. of Law at 17-19. Each of these arguments fails.
The decision not to classify Plaintiff's respiratory ailment as a LODI occurred in late March 2016, which is sufficiently close in time to Plaintiff's EEO complaint as to raise an inference of a retaliatory motive. See Pl.'s Mem. of Law at 17; Carter Decl. Ex. I; El Sayed v. Hilton Hotels Corp. ,
Plaintiff also asserts that Defendants retaliated against him when they accused him of threatening and harassing a fellow officer in April 2016. See Pl.'s Mem. of Law at 18. Assuming, without deciding, that such an accusation could constitute retaliation, Defendants have offered legitimate, non-retaliatory reasons *347for the action. As the Court has discussed, it is undisputed that Plaintiff shouted at and threatened to suspend an officer in front of her co-workers, bringing her to tears on two different occasions. See Cosgrove Decl. Ex. H. Plaintiff's behavior "disrupted command operations." Carter Decl. Ex. D at 43. Accordingly, Defendants had legitimate reasons for accusing Plaintiff of this conduct, and this part of Plaintiff's claim fails.
Finally, Plaintiff asserts that Defendants retaliated by issuing CDs against him in August 2016, transferring him to the 42nd Precinct in September 2016, and transferring him to other NYPD positions in October and December 2017. See Pl.'s Mem. of Law at 17-19. These actions are not sufficiently temporally proximal to raise an inference of a causal connection. See Lambert ,
Because no reasonable juror could find that Defendants retaliated against Plaintiff, Defendants' motion for summary judgment is granted as to those claims.
V. Defendants' Motion for Summary Judgment Is Granted as to Plaintiff's Failure-to-Accommodate Claim
As to Plaintiff's claim that Defendants failed to accommodate his disability, Defendants have moved for summary judgment on the ground that Plaintiff failed to include this allegation in the charge of discrimination that he filed with the U.S. EEOC and, therefore, that he failed to exhaust his administrative remedies for this claim. See Defs.' Mem. of Law at 5-6.
*348"Ordinarily, a plaintiff seeking to bring a claim pursuant to the [ADA] ... must exhaust administrative remedies" by filing a charge of discrimination with the EEOC. Soules v. Connecticut Dep't of Emergency Servs. & Pub. Prot. ,
Plaintiff's failure-to-accommodate claim arises out of his assignment to the position of "desk officer" at the 42nd Precinct in late 2016. See Am. Compl. ¶¶ 38-47, 77-82. Plaintiff alleges that this position required "a high degree of concentration and attention to detail," id. ¶ 38, and was located in an "open and dusty area," id. ¶ 43, making it difficult for him to do the job due to his respiratory ailments and sleep apnea, id. ¶¶ 39, 44. Plaintiff alleges that he requested reassignment to a different position but that his request was ignored. Id. ¶¶ 40, 42, 45, 47.
This claim is not reasonably related to Plaintiff's EEOC charge. The majority of his charge alleged discrimination on the basis of race, not disability. See Cosgrove Decl. Ex. N. Some limited parts of the charge alleged disability-based discrimination, but the charge did not allege a failure to accommodate. See id. Rather, the charge alleged: that Cosgrove had "attempted to humiliate" Plaintiff by assigning him to monitor security cameras, a task that Plaintiff alleges was unduly difficult due to his sleep apnea ; that Defendants had unfairly failed to provide him tour changes to attend doctor's appointments; that they had denied his LODI applications; and that they had denied him disability benefits. See id. at 4-7.
Plaintiff's failure-to-accommodate claim, associated with his assignment as the 42nd Precinct desk officer, is not reasonably related to the camera-assignment allegation in the EEOC charge. Plaintiff does not allege that he requested a different assignment from watching cameras or that Cosgrove failed to accommodate that request; Plaintiff simply alleges that the camera-watching assignment was difficult due to his disability. The scope of investigation of that charge would not reasonably include an entirely separate assignment, nor does the charge allege retaliation or discrimination in "precisely the same manner" as that alleged in the failure-to-accommodate claim. See Soules ,
*349The balance of the allegations in the EEOC charge could, conceivably, be construed as failures to accommodate Plaintiff's disability. Those allegations do not, however, allege a failure to accommodate similar to Plaintiff's request to be reassigned from being the 42nd Precinct's Desk Officer. Moreover, the EEOC allegations relate to events in March and April 2016, months before Plaintiff's September 2016 assignment as Desk Officer at the 42nd Precinct. Accordingly, the scope of the investigation of those charges would not reasonably have included Plaintiff's failure-to-accommodate claim, nor does the claim allege retaliation or discrimination in precisely the same manner as that alleged in the EEOC charge.
No other allegations in Plaintiff's EEOC charge even remotely approach the allegations in his failure-to-accommodate claim. Accordingly, Plaintiff failed to exhaust his administrative remedies, and Defendants' motion for summary judgment is granted as to this claim.
CONCLUSION
For all the foregoing reasons, Defendants' motion for summary judgment (Dkt. 53) is GRANTED as to all of Plaintiff's claims except for the part of Plaintiff's NYCHRL claim for disability-based discrimination that arises out of his negative evaluations. That claim is DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction.
SO ORDERED.
All facts described herein are undisputed unless otherwise stated. The Court will refer to the parties' submissions as follows: Defendants' Memorandum of Law in support of their motion for summary judgment, Dkt. 56, as "Defs.' Mem. of Law"; the Declaration of John Corbin Carter, Dkt. 55, submitted in support of Defendants' motion, as "Carter Decl."; Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts, Dkt. 54, as "Defs.' 56.1 Stmt."; the Declaration of John Cosgrove, Dkt. 57, submitted in support of Defendants' motion, as "Cosgrove Decl."; Plaintiff's Memorandum of Law in Opposition to Defendants' Motion, Dkt. 66, as "Pl.'s Mem. of Law"; the Declaration of Chukwuemeka Nwokoro, Dkt. 62, submitted in opposition to Defendants' Motion, as "Nwokoro Decl."; the Declaration of Cyress Smith, Dkt. 63, submitted in opposition to Defendants' Motion, as "Pl.'s Decl."; Plaintiff's Statement of Contested Facts Pursuant to Local Civil Rule 56.1, Dkt. 64, as "Pl.'s 56.1 Resp."; the Supplemental Declaration of Chukwuemeka Nwokoro, Dkt. 65, submitted in opposition to Defendants' Motion, as "Nwokoro Supp. Decl."; and Defendants' Reply Mem. of Law in further support of their motion, Dkt. 69, as "Defs.' Reply Mem. of Law." The Court will refer to Plaintiff's deposition, Dkt. 55-2, as "Pl.'s Dep," and to Cosgrove's deposition, Dkt. 55-3, as "Cosgrove Dep."
Plaintiff received a rating of 4.5 on his 2013 evaluation, after successfully appealing a rating of 4.0. See Defs.' 56.1 Stmt. ¶ 21; Pl.'s 56.1 Resp. ¶ 21.
Plaintiff argues that NYPD procedures allow officers to obtain supervisor approval after making handwritten changes to shift schedules. See Pl.'s 56.1 Resp. ¶ 45 (citing Pl.'s Dep. at 120-29). Defendants argue that officers were required to obtain supervisor approval prior to making such changes. See Defs.' 56.1 Stmt. ¶ 45. As the Court will explain, this dispute is not material. See infra Part II.A.3.
Due to Plaintiff's respiratory condition, he has been on "restricted duty" since 2015. See Defs.' 56.1 Stmt. ¶ 67; Pl.'s 56.1 Stmt. ¶ 67. In 2016, Plaintiff was briefly returned to "full duty" for two days, before being designated back to restricted duty.
Plaintiff brought his failure-to-accommodate claim only under the ADA, not the NYSHRL or the NYCHRL. See Am. Compl. ¶¶ 77-82. Additionally, Plaintiff brought claims only for race-based retaliation, not disability-based retaliation. See id. ¶¶ 62-67. Plaintiff also originally brought claims for hostile work environment, pursuant to Title VII, the NYSHRL, and the NYCHRL, see id. ¶¶ 54-61, but he voluntarily dismissed these claims in response to Defendants' motion to dismiss, see Order (Apr. 27, 2018), Dkt. 39; Tr. of Apr. 27, 2018 Conf. at 3; Pl.'s Mem. of Law in Opp. to Defs.' Mot. to Dismiss, Dkt. 27, at 6.
Indeed, Cosgrove stated in his transfer request that he wanted to remove Plaintiff from the PMU because Plaintiff's disciplinary problems created a "conflict of interest" with his work in the PMU, which is responsible for monitoring officers who have been disciplined. See Cosgrove Decl. Ex. J ("Sergeant[ ] Smith's assignment to the [PMU] creates a conflict of interest as Sergeant Smith exhibits the very behaviors and actions that the [PMU] is responsible for monitoring."). This explanation undercuts any notion that the transfer was a demotion or a career setback.
In any event, there is no evidence that Cosgrove-or any other person about whom Plaintiff has offered evidence raising an inference of discriminatory intent-was responsible for Plaintiff's VIPER transfers; Cosgrove was responsible only for Plaintiff's initial transfer to the 42nd Precinct. Accordingly, even if the VIPER transfers were adverse employment actions, there is no evidence that they had anything to do with Plaintiff's race or disability.
Defendants argue that Plaintiff should not be allowed to rely on the document describing the Performance Monitoring Program because he failed to produce the document in discovery. See Defs.' Reply Mem. of Law at 2. Because Plaintiff's argument fails as a matter of law, the Court need not resolve this dispute.
Although Cosgrove recommended that Plaintiff lose vacation days for one of the CDs, that penalty was never imposed (at least, as of the date that Defendants' motion was filed). See Defs.' 56.1 Stmt. ¶¶ 52-53; Pl.'s 56.1 Resp. ¶¶ 52-53.
Additionally, Defendants offer evidence that Cosgrove assigned Plaintiff to mail duty because Cosgrove had received complaints that cadets were not delivering mail properly and that an officer of Plaintiff's rank was needed to complete this task. See Defs.' 56.1 Stmt. ¶ 33 (citing Cosgrove Decl. ¶ 12). That undisputed fact suggests that the assignment was not a form of punishment or a career setback.
Plaintiff also argues that Defendants assigned him to watch security cameras, a task that Plaintiff argues was unduly difficult due to his sleep apnea. See Pl.'s 56.1 Stmt. ¶ 34; Pl.'s Mem. of Law at 11-12. This assignment, however, lasted for only a single day. See Defs.' 56.1 Stmt. ¶ 34 (citing Cosgrove Decl. ¶ 13); Pl.'s Dep. at 188-90. As a matter of law, a one-day assignment could not have materially altered the terms and conditions of Plaintiff's employment.
Some of these courts have held that the denial of sick leave altogether (that is, the ability to take paid time off for illness) may be an adverse employment action; these courts, however, have held that the denial of administrative leave (that is, the ability to take paid time off without using sick days) is not an adverse employment action. See, e.g., Krishnapillai ,
Plaintiff argues that the denial of his request to classify his ailment as a LODI caused him to be classified as a "chronic sick" employee, which, in turn, "was a disadvantage in getting benefits such as overtime [and] discretionary promotion[s]." Pl.'s Mem. of Law at 3-4; see also id. at 11. Plaintiff offers no citations or details for these conclusory assertions; accordingly, the Court need not consider them. See Amnesty America ,
Plaintiff identified one person in the PMU who received "special-assignment pay," but Plaintiff offered no other facts regarding this issue. Plaintiff does not disclose why that person received such pay or whether Plaintiff was eligible to receive it. See Pl.'s Dep. at 182; Defs.' 56.1 Stmt. ¶ 40; Pl.'s 56.1 Stmt. ¶ 40. In addition, the person who allegedly received "special-assignment pay" is African American, see Pl.'s Dep. at 182, foreclosing the possibility that Plaintiff could rely on this person as a comparator in attempting to raise an inference of racial discrimination.
Plaintiff states in his declaration that "all the white Sergeants" in his unit "routinely" made handwritten changes to the schedule without prior supervisory approval. Pl.'s Decl. ¶ 16. Because Plaintiff offers no foundation for this conclusory assertion, the Court need not consider it. See Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."); BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn. ,
Plaintiff also asserts that when he confronted Cosgrove about his negative evaluations, Cosgrove mocked him, sarcastically telling him that he should receive a "challenge coin" for his contributions to the PMU. Pl.'s Mem. of Law at 13 (citing Pl.'s Dep. at 180). Additionally, Plaintiff asserts that one of his supervisors, David Wittmann, told Cosgrove that Plaintiff received a low rating because of his "lack of work ethic."
Even if the appeals officer had concluded that Plaintiff's 2013 evaluation had been based on his race, that evidence would have limited probative value, as the 2013 evaluation predated Cosgrove's arrival in the PMU by two years.
Plaintiff cites to a series of emails in support of his assertion that his tour changes complied with NYPD procedures. See Pl.'s Mem. of Law at 13 (citing Nwokoro Decl. Ex. 2). Far from raising a dispute of fact, however, these emails include instructions from Plaintiff's supervisors to obtain authorization for tour changes in writing at least five days in advance of the applicable change. Nwokoro Decl. Ex. 2 at 2.
There is no evidence, for example, that Plaintiff's applications to have his respiratory ailment classified as a LODI were denied because of animus toward Plaintiff's disability, as opposed to a rational determination that Plaintiff's condition did not qualify as a LODI. There is no indication that the individuals involved in deciding whether his ailment qualified as a LODI harbored any such animus. See Defs.' 56.1 Stmt. ¶¶ 69-73; Carter Decl. Exs. G, I; Cosgrove Decl. Ex. G; Nwokoro Decl. Ex. 8. Although Plaintiff asserts that Cosgrove was responsible for the LODI denials, his evidence on this point is his speculative and conclusory deposition testimony, which is devoid of any foundation. See Pl.'s 56.1 Resp. ¶¶ 69, 71; Pl.'s Mem. of Law at 15, 23. And although Plaintiff asserts that a surgeon in the NYPD's Medical Division made a disparaging remark about Plaintiff's disability, see Pl.'s Dep. at 227, Plaintiff's application for his ailment to be treated as a LODI was denied nearly a year later. See Nwokoro Decl. Ex. 8. There is no evidence that the complained-of surgeon was involved in that denial.
Of course, Defendants have offered overwhelming evidence that Plaintiff's evaluations were based on non-discriminatory factors. Nevertheless, the anti-discrimination laws require only that disability play a part of an employer's motivation for an action. See, e.g., Ya-Chen ,
Plaintiff's CDs and the letter requesting Plaintiff's transfer, for example, do not mention Plaintiff's attendance issues, see Cosgrove Decl. Exs. A, J, and Plaintiff has offered no evidence that these actions were motivated by disability-based discrimination.
"[W]hen a court dismisses for lack of subject-matter jurisdiction, that dismissal must be without prejudice." Siegel v. Apergis ,
Plaintiff has offered some limited evidence that Cosgrove learned of the EEO complaint in June 2016. See Pl.'s Mem. of Law at 17-18 (citing Nwokoro Decl. Ex. 11). Plaintiff offers no evidence, however, that Cosgrove (or any other relevant person) knew about the EEO complaint when the LODI application was denied, in March 2016.
In an attempt to argue pretext, Plaintiff maintains that he was warranted in threatening to suspend the officer because she had refused to follow Plaintiff's orders. See Pl.'s 56.1 Resp. ¶ 55; Pl.'s Decl. ¶¶ 17-18. Regardless of whether that is true, Plaintiff offers no evidence to dispute the most serious part of this incident: that he dealt with her alleged insubordination not in private but in front of her co-workers. See Cosgrove Decl. Ex. H.
Plaintiff also asserts that he engaged in a protected activity when he filed the Complaint in this case in February 2017. See Pl.'s Mem. of Law at 17. Plaintiff raised this argument for the first time in his response to Defendants' motion for summary judgment; Plaintiff did not include this allegation in his Amended Complaint. See Am. Compl. Accordingly, the Court need not consider this allegation. See Penney v. AIG Domestic Claims, Inc. , No. 04-CV-9071,
Even if this allegation were properly pleaded, it would fail. The only allegedly retaliatory actions that took place after the Complaint was filed were Plaintiff's September and December 2017 transfers. See Pl.'s Mem. of Law at 19. Those actions are not sufficiently temporally proximal to the filing of the Complaint to raise an inference of a retaliatory motive, see Lambert ,
See Spillers v. N.Y.C. Health & Hosps. Corp. ,
See Chandler v. AMR Am. Eagle Airline ,
Although the NYSHRL and NYCHRL do not contain the same exhaustion requirements as the ADA, see Bresloff-Hernandez ,
Reference
- Full Case Name
- Cyress SMITH v. The CITY OF NEW YORK and Inspector John Cosgrove
- Cited By
- 43 cases
- Status
- Published