Opinion
03-CV-3034(JG).
November 22, 2005
SAUL D. ZABELL, ESQ., CHRISTOPHER K. COLLOTTA, ESQ. Zabell Associates, PC, Bohemia, NY, Attorneys for Plaintiff.
DONALD C. SULLIVAN, ESQ., JASON ROBERT BOGNI, ESQ, NYC Office of Corporation Counsel, Law Department, New York, NY, Attorneys for Defendants.
MEMORANDUM AND ORDER
Plaintiff Byron Birdsong brings this action alleging that the City of New York and the New York City Police Department ("NYPD") discriminated against him on the basis of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101, et seq. The defendant City of New York now moves for summary judgment. For the reasons set forth below, the motion is granted.
Birdsong's complaint also included claims of retaliation, but he has since withdrawn those claims. (Pl.'s Mem. Law Opp'n Summ. J. at 14 (Sept. 23, 2005).)
"Defendant" in this memorandum refers to the City of New York, which is the correct defendant in this action. The NYPD is not a proper defendant, and the claims against it are dismissed for that reason. See, e.g., Lovanyak v. Cogdell, 955 F.Supp. 172, 174 (E.D.N.Y. 1996).
BACKGROUND
The following facts are not genuinely in dispute. Birdsong was hired by the NYPD in October 1994 and assigned to work as an undercover police officer in Southeast Queens in October 1997. As an undercover officer, his duties included making undercover drug buys and providing assistance to his fellow undercover officers when they were making drug buys. A performance evaluation for the period from August 6, 1998 to January 6, 1999, rated Birdsong's performance "competent," and gave him the numerical grade three out of five. (Bogni Decl. Ex. D). In that evaluation, Birdsong's reviewing supervisor noted that "he is a competent officer who performs to department standards upon direction. His activity had fallen below that of many of his peers, partly due to sick leave." Id.
On April 29, 1999, after 18 months in "detective track" assignments, Birdsong was promoted pursuant to NYPD policy to the rank of detective. Immediately after "making detective," Birdsong's drug buys declined. In May and of June 1999, he made four buys, as compared with 10 in March and April of 1999. (Bogni Decl. Ex. C).
In July 1999, Birdsong was transferred to Queens North. His duties remained essentially the same. He completed only six buys during the period July through October 1999. During this period, Birdsong was counseled by his supervisors, who explained that he was not making enough buys. In September 1999, Birdsong was written up in the command's minor violations log for six infractions, including lateness and unauthorized tour changes.
Birdsong's October 1999 interim performance evaluation rated his overall job performance as "low," stated that Birdsong "is not motivated and shows no initiative to make buys," and explained that Birdsong had been "previously counseled relative to his low activity." (Bogni Decl. Ex. G). This evaluation also denied Birdsong's request to transfer to another borough. Birdsong objected to the interim performance evaluation and complained verbally to his commanding officer. On October 28, 1999, the commanding officer, Captain Francis Darsillo, submitted a memorandum to the Commanding Officer, Narcotics Borough Queens, recommending that Birdsong's detective designation be revoked and that he be returned to patrol. (Bogni Decl. Ex. H). Effective December 29, 1999, Birdsong's detective status was revoked. (Bogni Decl. Ex. L).
Meanwhile, between November and December 1999, an investigation was conducted concerning various violations by Birdsong of the NYPD Patrol Guide, including failures to appear as required in court on several occasions in the preceding months. The investigation concluded, inter alia, that Birdsong had been absent without authorization for at least 21 hours over the course of nine separate days and had failed to appear in court three times. (Bogni Decl. Ex. I). On this basis, departmental charges were brought against Birdsong in March 2000. (Bogni Decl. Ex. J). Birdsong pleaded guilty to the charges and agreed to forfeit 25 vacation days to dispose of the charges. (Bogni Decl. Ex. K). Despite his admissions of guilt, he now asserts that the charges he pled guilty to — failing to appear in court, being absent without permission, leaving the city without permission, failing to keep his daily activity reports, and failure to submit court attendance records — were unfounded.
On October 28, 1999, Birdsong filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that Lieutenant Pignataro, under whose supervision Birdsong worked beginning in July 1999, discriminated against Birdsong because he was African-American. The EEOC issued a right to sue letter on March 28, 2003. Birdsong commenced this action on June 18, 2003.
DISCUSSION
A. The Summary Judgment Standard
A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party"). The facts "must be viewed in the light most favorable to the party opposing the motion," and the inferences to be drawn from those facts must be drawn in that party's favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted).
A party moving for summary judgment must identify the evidence that it believes demonstrates the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once it has done so, the opposing party "must come forward with specific facts showing that there is a genuine issue for trial." Id. at 586-87 (the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts" (quoting Fed.R.Civ.P. 56(e)).
In discrimination cases, "[a] trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). Because direct evidence of intentional discrimination is rarely available, affidavits, depositions, and other evidence "must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Id.
B. Birdsong's Title VII Claim
Birdsong claims that he was demoted on the basis of his race, in violation of Title VII. Title VII provides, in pertinent part:
It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. color, religion, sex. or national origin . . .42 U.S.C. § 2000e-2(a).
Where, as here, there is no direct evidence of discrimination, a Title VII disparate treatment claim is examined under the three-step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). First, the plaintiff must establish a prima facie case of discrimination. If a plaintiff is able to do so, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action. Finally, if the defendant is able to articulate such a reason, the plaintiff must prove that the proffered reason was not the defendant's true reason, but was a pretext for discrimination. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). A court will grant a defendant's motion for summary judgment when the plaintiff either fails to establish a prima facie case or fails to sufficiently rebut the legitimate reason offered by the defendant for the adverse employment action.
1. Birdsong's Prima Facie Case
In order to establish a prima facie case of discrimination, Birdsong must demonstrate that (1) he belongs to a protected class; (2) his job performance was satisfactory; (3) he suffered an adverse employment action; and (4) the circumstances surrounding the employment action give rise to an inference of discrimination. See Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). Although the plaintiff's burden in establishing a prima facie case is de minimis, see, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998), defendant argues that he has not met it because he cannot demonstrate that he was performing his duties satisfactorily and he cannot establish circumstances giving rise to an inference of discrimination. See Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) (explaining that courts must inquire "whether the evidence can reasonably and logically give rise to an inference of discrimination under all of the circumstances."). I am skeptical of the first of those contentions, but I need not decide either. I assume without deciding that Birdsong has established a prima facie case because, as discussed below, Birdsong is unable to demonstrate that the NYPD's proffered legitimate nondiscriminatory reason is a pretext for discrimination.
2. Defendant's Neutral Reasons for Demoting Birdsong
An employer satisfies its burden of production on the second step of the McDonnell Douglas test if its proffered reasons for the challenged action, taken as true, "permit the conclusion that there was a nondiscriminatory reason for the adverse action." Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (citations and quotation marks omitted). Defendant has satisfied this burden. It contends that it demoted Birdsong because his performance and attitude were unsatisfactory and remained so despite efforts to counsel him. Substantial evidence supports this contention. The number of drug buys made by Birdsong decreased significantly during the months following his promotion to detective and remained low despite counseling concerning his performance. Birdsong's evaluations went from "highly competent" in March 1998 to "competent" in February 1999 to "low" in October 1999. Thus, "[i]n view of the fact that Detective Birdsong . . . consistently failed to maintain an acceptable level of buy activity while assigned to this command after repeated instruction to improve his performance," the NYPD determined that his detective status should be revoked. (Bogni Decl. Ex. H). Further evidence demonstrates that the NYPD acted upon charges that Birdsong failed to make scheduled court appearances and committed other violations of the Patrol Guide. In short, defendant has established legitimate, nondiscriminatory reasons that explain the revocation of Birdsong's detective status.
3. Pretext
Once a defendant has proffered such reasons, "the presumption of discrimination created by the prima facie case drops out of the analysis, and the defendant `will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.'" Mario v. P C Foods Mkts., Inc., 313 F.3d 758, 767 (2002) (quoting James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000)). Thus, the plaintiff is "afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination." Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)); see also Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000) ("The plaintiff must produce . . . sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action.]") (quotations and citations omitted, brackets in original).
In determining whether a plaintiff has met this burden, a court must examine the entire record and determine whether, at trial, the trier of fact could reasonably find that the defendant's behavior was intentionally discriminatory. See Schnabel, 232 F.3d at 90 (citation and quotation omitted); James, 233 F.3d at 156 (citation and quotation omitted). An employer is entitled to summary judgment only if its proffered nondiscriminatory reason is conclusive upon the face of the record. See Reeves, 530 U.S. at 148. In some situations, the prima facie case alone, combined with evidence of pretext, is sufficient to defeat a summary judgment motion, while in others it is not. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir. 2001).
Birdsong concedes that his buy record was diminishing (Pl. Rule 56.1 Counterstatement ¶ 4), that he was charged with missing required court appearances (Bogni Decl. Ex. I), and that he was written up for lateness and other minor infractions (Pl. Dep. at 122). However, he argues that the stated reasons for demoting him were nevertheless pretextual because all of his problems in the workplace were the result of the racial bias of one of his supervisors, Lieutenant Pignataro. Specifically, Birdsong asserts that he was treated differently than similarly situated undercover detectives who were not African-American.
Birdsong's admission of lower buy rates notwithstanding, he asserts that "the volume of Plaintiff's narcotics purchases greatly exceeded that of his non-African-American comparators." (Pl. Mem. Law Opp'n Summ. J. at 8). At oral argument, however, Birdsong conceded that the buy records listed actually represent only partial buy records for those undercover detectives who worked on Birdsong's team for short periods of time when either he or his partner was unavailable.
The sort of disparate treatment Birdsong alleges, if proved, can indeed, in an appropriate case, establish both the pretextual character of a defendant's race-neutral explanation and the basis for a jury finding of discrimination. However, to survive a motion for summary judgment, Birdsong must adduce admissible evidence that he was treated differently than similarly situated undercover officers who were not African-American. See Shumway v. United Parcel Service, 118 F.3d 60, 64 (2d Cir. 1997). Because he has failed to do so, his claims cannot survive the instant motion.
To be sure, Birdsong argues that he was subjected to such disparate treatment. His memorandum in opposition to the motion makes the following assertions:
• "Caucasian officers with much lower purchase volume than Plaintiff and his partner were not criticized. (Pl. Dep. 116-117) (O'Neill Dep. 57) (Pl. Ex. A-J)."
• "Lt. Pignataro, Sgt. O'Neill's superior officer, discussed performance with African-American detectives; not with Caucasian detectives. (Pl. Dep. 116-117, 165)."
• "Caucasian employees of Defendant who committed same or similar actions were not subject to such reprimand. (Pl. Dep. 123-133, 162, 182-183)."
• "Additionally, in November 1999, Plaintiff was falsely accused of failing to make required court appearance. (Def. Ex. I)."
(Pl. Mem. Law Opp'n Summ. J. at 10-11). If those assertions were based on admissible evidence, Birdsong might be entitled to a jury trial of his claims. However, the portions of the record on which Birdsong bases his arguments fail to support them at all. Because plaintiff's counsel conceded as much at oral argument, only a brief explanation is necessary.
First, the cited pages of plaintiff's deposition do not even assert, much less prove, that there were other undercover officers with any performance deficiencies, let alone an array of comparable to Birdsong's. The O'Neill deposition not only fails to support plaintiff's contention, it undermines it. As for Plaintiff's Exhibits A-J, the results of which are set forth on page 9 of plaintiff's memorandum, they do not support plaintiff either. Though the chart shows Birdsong and his partner (Exs. A and C, respectively), outperforming the other, unidentified undercover officers, the "buys" by the other officers include only those made when they substituted on Birdsong's team. In other words, the other buys made by those officers while working with their own (or other) teams during the relevant time period are not included. Plaintiff's counsel admitted at oral argument that the data suffers from this fatal deficiency. Finally, Birdsong's claim that he was "falsely accused" of failing to make court appearances runs up against his plea of guilty to that conduct in departmental disciplinary proceedings. Though he now claims that his admissions were false, that does not render illegitimate the NYPD's reliance on its belief that Birdsong committed numerous disciplinary infractions.
At the cited pages, Birdsong testified as follows:
Q: Do you think that [Pignataro] treated you disrespectfully because of your race?
A: Yes, I do.
Q: Why do you think that?
A: Because he never sat down and pulled one of the white detectives off my team and had a meeting with him, telling them that their arrest was down or their search warrants was down. . . . The only two black guys on the team he had a conference with, but he did not have a conference with anybody else on the team.
* * * *
[Pignataro] did not send [other detectives] back.
He never called them in the office two or three [times] a week and told them what they had to do but officer Birdsong he did.
* * * *
Q: Do you know why [Pignataro] would [demote you]?
A: Yes, he is a racist.
Q: Why do you think he is a racist?
A: Because he has a problem working with black police officers.
Q: What makes you say that?
A: Because of the way he handled the black police officers that I watched him handle myself and [my partner], he had a problem with. He did not have a lot of black detectives to supervise on our team. So he dealt with us the way he dealt with us.
It was totally different to how he dealt with white detectives. . . . He did not call white detectives into his office to sit down and ask them how many arrests did they have. He did not do that to them. He did that to me.
(Pl. Dep. at 116-17, 165, 182-83). This testimony does not establish that there were undercover detectives with discipline problems similar to Birdsong's.
O'Neill testified that if the other undercover officer's buy activity had slowed like Birdsong's had, they would have been criticized, too. (O'Neill Dep. at 57.)
While I am mindful that I must draw all reasonable inferences in favor of Birdsong, I nevertheless conclude that he has failed to raise a genuine issue of material fact as to whether the NYPD's legitimate nondiscriminatory reasons for demoting him were a pretext for discrimination reasons. As both the State of New York and the City of New York would subject Birdsong's state and city claim, respectively, to the same McDonnell Douglas analysis, those claims are also dismissed. See Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004); N. Shore Univ. Hosp. v. Rosa, 86 N.Y.2d 413, 419-20 (1995).
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is granted in its entirety. The Clerk is directed to enter judgment for the defendant and to close the case.
So Ordered.