Opinion
99 Civ. 3786 (RWS).
September 13, 2007
Attorneys for Plaintiff, LEWIS, JOHS, AVALLONE AVILES, LLP, Melville, NY.
Attorneys for Defendant, MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, NY.
OPINION
Defendants, the City of New York, Inspector John D'Agostino, Chief Wilbur Chapman, Staff Analyst Ingrid Balady, Dr. James O'Keefe, Sergeant Samuel Pannucchio, Lieutenant Klev, Sergeant Codd, Dr. Harold Roth, and Police Officer Charles Taglerino (collectively, "Defendants"), have moved under Rule 56, Fed.R.Civ.P. for summary judgment dismissing the complaint of plaintiff Sophine Charles ("Charles" or "Plaintiff"), a female, African-American former police officer employee of the New York City Police Department ("NYPD"), alleging violations of Title VII, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the New York State Human Rights Law ("NYSHRL"), Executive Law § 290, et seq. For the reasons set forth below, the motion is granted and the complaint dismissed.
Prior Proceedings
On or about May 24, Charles filed her complaint alleging that she was discriminated against based on her race and gender, retaliated against for complaints about discrimination, targeted for and received more command disciplines and excessive penalties, and that the NYPD has a pattern and practice of retaliatory discipline against officers of color.
Discovery proceeded and Defendants initially filed a motion for summary judgment on November 22, 2005. After numerous adjournments, Defendants' motion was dismissed for failure to prosecute without prejudice and with leave to refile without penalty on September 27, 2006.
The instant motion was filed on October 10, 2006 and marked fully submitted on February 28, 2007.
The Facts
The facts are contained in the Defendants' Local Rule 56.1 Statement and the Plaintiff's Rule 56.1 and Controverted Statement and are not in dispute except as noted below.
Charles joined the NYPD as a Police Administrative Aide in 1981, and in 1984 began her career as police officer. She was first assigned to Neighborhood Stabilization Unit ("NSU") 12 for training for approximately six months in 1984 and from January 1985 to August 1986 was assigned to the patrol unit in the 84th precinct. Charles requested and was granted an assignment to the Police Academy as an instructor in the Human Relations Unit in August 1986.
Charles was thereafter assigned to the Counseling Unit, the Vera Institute of Justice, and the Community Policing Training Unit, all of which are within the Police Academy and in late 1994 was assigned as the Academic Advisor in the College Liaison Office, a position which she held for approximately one year. Plaintiff's duties and responsibilities included maintaining relationships with different schools and universities that offered scholarships to the NYPD, such as talking to the representative at the different schools, getting catalogues, having meetings and orientations concerning changes in scholarships, preparing and collecting scholarship applications, and attending the scholarship committee.
In January 1996, Charles was assigned to the 19th precinct, where she remained for approximately six months. In July 1996, she was transferred to the 30th precinct, where she was assigned until approximately March 1998. From March 1998 through February 1999, she was assigned to the Communications Division at Headquarters as a restricted duty assignment because she had injured her right wrist in the line of duty. In February 1999, Charles resigned from the NYPD.
The Attorney General of the United States established the Office of Community Oriented Policing Services ("COPS") within the Department of Justice to implement the "Cops of the Beat" (also known as the "COPS MORE" Program) grant provisions of the Violent Crime and Control and Law Enforcement Act of 1994 (the "Federal Crime Bill"), signed into law on September 13, 1994. The program is one of several approaches developed by the Department of Justice under the Violent Crime and Control and Law Enforcement Act of 1994, to increase deployment of law enforcement officers devoted to community policing on the streets and rural routes in the United States. This program, which has been open to all law enforcement agencies, was designed to support the use of existing human resources in community policing rather than through the hiring or rehiring of additional law enforcement officers.
On March 10, 1995, the NYPD applied for funding under the COPS MORE Program, with a proposal of redeploying 1,170 sworn officers in administrative or clerical positions and replace them with non-sworn or civilian employees under the COPS MORE Program, to increase the presence of existing sworn officers in community policing activities with the following goal in mind: Civilianization of police officers in administrative functions would permit the Department to achieve staffing levels necessary for the furtherance of community policing.
As part of the COPS MORE Program, assignments under the Federal Crime Bill were to be made for Community Policing or patrol functions only. Specifically, police officers were to be assigned "for Community Policy or patrol functions only." Federal Crime Bill "COPS MORE" Guidelines for Assignment of Civilianized Uniformed Personnel, attached as Ex. D to Gill Decl.
According to the Defendants, of the 1,170 uniformed positions which were identified for civilianization, 260 positions were in the Criminal Justice Bureau; 390 positions in the Precinct Entry Level Positions; 60 positions in Applicant Processing Division; and 460 position in Headquarters Redeployment. The Police Academy, which was considered a subordinate command of the Personnel Bureau, was considered a Headquarters based command.
In March 1995, at the direction of the Police Commissioner's Office, all commands within the NYPD were directed to prepare a Civilianization Audit Task List, and on March 10, 1995, Charles completed a Task List for her position as Scholarship Liaison.See Civilianization Task List Memo and Charles Civilianization Audit Task List, attached as Ex. F to Gill Decl.; Wechsler Decl., ¶ 7.
According to the Defendants, as early as August 4, 1995, the NYPD identified at least 530 positions for its Crime Bill Civilianization Plan, which included two positions at the Police Academy. A complete listing of the uniformed members of the services whose positions were selected for redeployment under the COPS MORE Program was created, and in January 1996, Charles' position was selected to be civilianized.
According to the Defendants, as of March 31, 1996, 458 of the previously identified 530 positions were civilianized, including Plaintiff's position, which effectively released uniformed personnel to community policing related duties. Charles was redeployed to the 19th precinct, a patrol assignment, effective January 19, 1996, where, pursuant to the provisions of the Federal Crime Bill COPS MORE program, she and several other officers also redeployed and were required to perform patrol functions. Charles contends that she was specifically targeted due to racial harassment and retaliation.
In 1999, a class action entitled the Latino Officers Association, et al., v. City of New York, et al., 99 Civ. 9568 (LAK) (KNF) ("LOA") ("plaintiff class comprised of all Latino and African-American men and women who have been, are, or will be employed by the NYPD as members of the force, who have been or will be subjected to discrimination on the basis of race, color or national origin in the form of a hostile work environment, disparate disciplinary treatment, and retaliation for the exercise of their rights") was filed.
Under the settlement in LOA for the purposes of individual claims for compensation or damages, the class is limited to members of the force whose claims arose between September 9, 1996 to December 31, 2003 and who meet the eligibility requirements as defined in the claims procedure set forth in the settlement agreement.
According to the Defendants, in the summer of 2004, efforts were made to send a package to each class member, which included notice of the then proposed settlement in LOA, claim forms if the class member wished to submit a claim for recovery in the settlement, and a description of the claims procedure. The package also contained instructions on how to "opt out" from the Settlement or to object to it.
According to the Defendants, the materials in the packet were created jointly by the parties to the LOA litigation, with assistance from the Special Masters. Each class member had the option of either filing a claim form if he or she wished to submit a claim for recovery under the settlement, an "opt out" statement if he or she did not wish to be a part of the LOA class and wished to preserve his or her rights to pursue individual lawsuits, and/or objections to the LOA proposed settlement. All claim forms, "opt out" statements and/or objections were required to be postmarked no later than July 6, 2004.
The Special Masters have not received a claim form from Charles or from her attorneys. A fairness hearing was held before the Honorable Lewis A. Kaplan on September 10, 2004, and the settlement was thereafter approved by order dated September 15, 2005. The Special Masters' Office has received claims postmarked after the Court ordered deadline of July 6, 2004. The Court has granted the Special Masters a limited amount of discretion, "for good cause shown," to accept claims which were not postmarked by the July 6, 2004 deadline. According to the Defendants, the Special Masters have reviewed these late filed claims on a case by case basis. According to the Defendants, Charles sought to belatedly "opt-out" of the LOA class well after the July 6, 2004 deadline, a contention denied by Charles. However, the Special Masters do not have authority to give any class member the choice of "opting out" of the LOA class. Rather, the Court has granted the Special Masters only a limited amount of discretion, "for good cause shown," to accept claims which were not postmarked by the July 6, 2004 deadline.
On August 14, 1995, Charles filed an internal Equal Employment Opportunity ("EEO") complaint with the NYPD against Ingrid Balady alleging that her work environment was destroyed, which plaintiff alleged she found to be racially offensive. On August 31, 1995, Charles filed a second internal EEO complaint with the NYPD alleging that her workspace was dismantled and personal items missing. On January 11, 1996, Charles filed an internal EEO complaint with the NYPD against the Policy Academy alleging racial discrimination and retaliation, in which she claimed that she was being forced to submit a request for a transfer in retaliation for filing the August 14, 1995 EEO complaint. On January 12, 1996, Charles filed an internal EEO complaint with the NYPD against Captain John D'Agostino alleging racial discrimination and retaliation. On March 14, 1996, Charles filed a letter complaint with the NYPD alleging harassment while on sick leave and discriminatory treatment. On April 1, 1996, Charles filed an internal EEO complaint with the NYPD, alleging racial harassment, the false reporting of events, and biased disciplinary practices. On April 18, 1996, Charles filed an internal EEO complaint with the NYPD against Captain John D'Agostino alleging continued racial harassment and retaliation, claiming that on February 12, 1996, Captain D'Agostino changed her 1995 performance evaluation to a lower rating. On February 3, 1997, Charles filed an internal EEO complaint with the NYPD alleging continued retaliation and harassment, claiming that her 1996 performance evaluation was lowered.
Charles filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") (charge no. 160-96-2136) on June 26, 1996. In her EEOC charge, Charles alleged that she was discriminated against based on her race and in retaliation for complaining of race discrimination.
On September 13, 1996, Charles amended her EEOC charge (charge no. 160-96-2136), alleging retaliation and discrimination based on her alleged disability. On September 30, 1996, the EEOC issued Charles a right-to-sue letter. On or about December 19, 1996, Charles filed another charge of discrimination with the EEOC (charge no. 160-97-0539), in which she complained of disparate treatment and adverse employment actions that she and other African-American officers were subjected to through NYPD disciplinary procedures. On or about February 7, 1997, the EEOC issued a Notice of Intent to Reconsider with respect to charge no. 160-96-2136, and on or about June 30, 1998, the EEOC issued a reconsidered determination, finding that there was reasonable cause to believe that Charles was retaliated against in violation of Title VII. On or about February 18, 1999, the EEOC issued plaintiff a right-to-sue letter for EEOC charge nos. 160-96-2136 and 160-97-0539.
On December 30, 1996, Charles commenced an action in the Southern District of New York (Docket No. 96 Civ. 9757) against the NYPD, Inspector John D'Agostino, Chief Wilbur Chapman, Staff Analyst Ingrid Balady, Dr. James O'Keefe, Sergeant Samuel Pannucchio, Lieutenant Klev, Sergeant Codd, Dr. Roth, and Police Officer Charles Taglerino, alleging retaliation and discrimination based on race, gender and disability (the "1996 Action").
On April 11, 1997, Charles filed an Amended Complaint in the 1996 Action, specifically alleging claims under Title VII, 42 U.S.C. §§ 1981, 1983, and 1985, the NYSHRL, and the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code § 8-107, on the basis of race, gender, and disability, alleging that the defendants discriminated, retaliated and created a hostile work environment for her on the basis of her race and gender on the grounds that she was unfairly disciplined, given an excessive penalty and placed on special monitoring, forced to work with serious medical impairment, harassed by the medical division, forced to work in a hostile work environment, transferred out of a promotional track assignment at the Police Academy in lieu of a white male, given punitive assignments and transfers, denied retraining and emergency leave, forced to endure destruction of her work environment without warning, and subjected to retroactively lowered performance evaluations. 1996 Action Amended Complaint, attached as Ex. P to Gill Decl ("Amended Complaint").
On June 23, 1997, the Defendants filed their Answer to the Amended Complaint. On September 15, 1999, Magistrate Judge Theodore Katz granted Charles leave to amend the 1996 Action and to serve a Second Amended Complaint within 45 days of the issuance of the decision.
On September 15, 1999, Judge Katz also issued a Report and Recommendation recommending denial of Defendants' motion to dismiss the Amended Complaint on the grounds that the Court lacked subject matter jurisdiction over the 1996 Action because of the EEOC's Notice of Intent to Reconsider; in so doing, the Court held that it retained jurisdiction over plaintiff's 1996 action.
Defendants contended that Judge Katz issued an Order on September 15, 1999, but a review of the docket report for the 1996 Action indicates that Judge Katz issued a Report and Recommendation, which was subsequently affirmed and adopted by Judge William H. Pauley on September 29, 1999.
On November 4, 1999, Judge Katz issued a Report and Recommendation, recommending dismissal the 1996 Action with prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. On November 30, 1999, Judge William H. Pauley affirmed and adopted Judge Katz's November 4, 1999 order in its entirety and dismissed the 1996 Action with prejudice.
On or about May 24, 1999, Charles commenced this action pursuant to Title VII, 42 U.S.C. §§ 1981 and 1983, the NYSHRL, and 42 U.S.C. § 3789(d) in the Southern District of New York (Docket No. 99 Civ. 3786) ("1999 Action") against Defendants.
In the 1999 Action, Charles has alleged that she was discriminated against based on her race and gender as well as in retaliation for complaining about race discrimination. Specifically, plaintiff alleges that: (1) she was transferred from her promotion-track position as Academic Advisor at the Police Academy to foot patrol instead of a white male; (2) she was denied promotions for five years; (3) she was subjected to deteriorated working conditions, increased scrutiny, more stringent evaluation standards, and an unreasonable workspace; (4) she was given a negative performance evaluation of her 1994-95 performance by Captain D'Agostino, and also by Lieutenant King while assigned to the 30th precinct; (5) she was denied retraining and orientation; (6) she was given punitive assignments; (7) she was given a command discipline; (8) she was denied appropriate medical leave; (9) she was placed on a Chronic B sick list; and (10) she was transferred by Chief Chapman and subjected to increased monitoring.
The Summary Judgment Standard
In deciding a motion for summary judgment, a court shall render judgment "forthwith 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case, Celotex, 477 U.S. at 325. The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987); see also Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985). However, the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If there is not, summary judgment is proper. See id. at 249-50.
When the plaintiff asserts that the employer's decision was a pretext for discrimination, courts use the well-known burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). First, the plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802-04; Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Weinstock, 224 F.3d at 42. Only if the plaintiff meets this initial burden will the burden then shift to the defendant to produce evidence that the adverse employment action was taken for some legitimate, non-discriminatory reason. See Burdine, 450 U.S. at 254-55. If the defendant articulates a legitimate non-discriminatory reason for its action, "the presumption raised by the prima facie case is rebutted, and drops from the case." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Burdine, 450 U.S. at 255 n. 10). Then, the plaintiff has the ultimate burden to demonstrate by a preponderance of the evidence that the articulated reason offered by the defendant for the adverse employment action is merely a pretext for actual discrimination.Mandell v. County of Suffolk, 316 F.3d 368, 380-81 (2d Cir. 2003).
The question for the court on summary judgment is whether the plaintiff's evidence, taken as a whole, establishes a substantial likelihood that the employer intentionally discriminated against the plaintiff. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000); see also Moorehead v. New York City Transit Auth., 385 F. Supp. 2d 248, 253-54 (S.D.N.Y. 2005) (assuming a prima facie case and proceeding directly to the "ultimate issue").
Pre-December 1996 Claims Are Barred By Res Judicata
The doctrine of res judicata provides that "`once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties, or those in privity with them concerning the transaction, or series of connected transactions, out of which the [first] action arose.'"Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (quoting Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997)). To determine whether res judicata bars a subsequent action, courts consider whether: "(1) the prior decision was a final judgment on the merits; (2) the litigants were the same parties; (3) the prior court was of competent jurisdiction; and (4) the causes of action were the same." Corbett v. MacDonald Moving Servs., Inc., 124 F.3d 82, 87-88 (2d Cir. 1997). Under the doctrine of res judicata, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action."Monahan v. City of New York Dep't of Correction, 214 F.3d 275, 286 (2d Cir. 2000).
The 1996 Action was dismissed with prejudice pursuant to Fed.R.Civ.P. 41(b), and because such a dismissal constitutes a decision on the merits, Charles' instant complaint, brought against the same Defendants and alleging the same causes of action, is precluded. Fed.R.Civ.P. 41(b) provides:
Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
A dismissal by the Court sua sponte under Rule 41(b) for failure to prosecute operates as an adjudication on the merits and such a dismissal is with prejudice. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 (1962) (recognizing a trial court's ability to dismiss an action sua sponte with prejudice pursuant to Rule 41(b)); West v. Gilbert, 361 F.2d 314, 316 (2d Cir. 1966); Carryl v. Columbia Univ. College of Physicians, 2005 U.S. Dist. LEXIS 3813 at *5 (S.D.N.Y. Mar. 9, 2005). Further, a dismissal under Rule 41(b), unless it is expressly stated to be without prejudice, will generally bar a subsequent action on the claim under principles of res judicata. See PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d Cir. 1983); La Societe Anonvme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1275 (2d Cir. 1974).
In the 1996 Action, Charles alleged discrimination on the basis of race, gender and retaliation under Title VII, 42 U.S.C. §§ 1981, 1983, and 1985, NYSHRL, NYCHRL, and 42 U.S.C. § 12112 and that the Defendants used the federal civilianization program as a pretext to discriminate and retaliate against her.
In the instant complaint, Charles has alleged that she has been discriminated and retaliated against based on her race and gender under Title VII, 42 U.S.C. §§ 1981 and 1983, and the NYSHRL. Certain of the very same acts of discrimination and retaliation are alleged.
Charles has relied on Devlin v. Transp. Communications Int'l Union, 175 F.3d 121 (2d Cir. 1999) for the proposition that both the 1996 and 1999 actions were simultaneously pending and therefore this action is not barred. Pl. Mem. in Opp. at 5. TheDevlin court reversed the district court's determination that some of plaintiff's claims were barred by res judicata because they could have been filed in an earlier suit brought against the same defendants, holding that the district judge "could well have considered consolidating" the two actions "given the fortuitous circumstance that the same district judge had both [cases] on his active docket at the same time." Devlin, 175 F.3d at 130.
Here, however, the 1996 Action and 1999 Action were not assigned to the same district judge, and this Court, unlike the Second Circuit, lacks the power to revisit Judge Pauley's decision dismissing the 1996 Action with prejudice.
Moreover, to the extent that Charles is asserting the same claims in the instant complaint as she did in the 1996 federal lawsuit, claim preclusion applies to Title VII claims when the same transaction has been previously litigated between the parties in federal court. See Woods v. Dunlop Tire, 972 F.2d 36, 40-41 (2d Cir. 1992); Hernandez v. Cunningham, 914 F. Supp. 72, 75 (S.D.N.Y. 1996). To allow Charles to now litigate claims that could have been brought in the earlier action, would only waste limited judicial resources and essentially vacate the order of another federal judge. See Salahuddin v. Jones, 992 F.2d 447, 449.
Under the doctrine of res judicata, a "`final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in that action.'" St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). In determining whether a suit is barred by res judicata, a court must determine whether the second suit involves the same nucleus of operative facts as the first suit. See Waldman v. Village of Kiryas Joel, 207 F.3d 105, 110-11 (2d Cir. 2000). It is not a prerequisite to the application of res judicata that the facts in both cases be identical; rather, the claims need arise from the same transaction. See Waldman, 207 F.3d at 110-11.
Moreover, the failure of a plaintiff to exhaust administrative remedies on a certain claim at the time of the 1996 Action does not operate to prevent the application of claim preclusion. See Woods, 972 F.2d at 40-41. Rather, in determining if a related claim could have been brought in an earlier action, the relevant factor is the date on which the claim accrued: if the asserted wrong pre-dated the filing of the 1996 Action, the plaintiff is barred from re-litigating it. See id.; Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000); Maharaj, 128 F.3d at 97-98.
Still, "if the facts that have accumulated after the 1996 Action are enough on their own to sustain the second action, the new facts clearly constitute a new `claim,' and the second action is not barred by res judicata." Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 384 (2d Cir. 2003).
Accordingly, Charles is precluded from raising issues in the instant action which arose from the same set of operative facts as those alleged in her 1996 Action and which arose prior to December, 20, 1996. Monahan, 214 F.3d 275 at 286. To the extent that any facts occurring after the 1996 Action was filed form a sufficient basis for additional claims, however, the instant suit could survive the res judicata effect of the 1996 Action.
Abuse of a Federal Program Has Not Been Established
Plaintiff's claim relies entirely on Defendants' Civilianization Program, which was already litigated in the 1996 Action and is thus barred by the doctrine of res judicata. See Complaint, ¶ 41. Accordingly, this claim must be dismissed.
Discrimination Has Not Been Established
Plaintiff alleges that the following incidents occurred after the filing of the 1996 Action:
(1) On January 28, 1997, Plaintiff's Performance Evaluation was changed and lowered.
(2) On June 6, 1997, Plaintiff was ordered to the firing range to qualify with her 9MM handgun even though her line of duty wrist injury had not healed. Plaintiff's weapons were removed from her.
(3) On July 1, 1997, Plaintiff was transferred to the Communication Section of One Police Plaza. Such a transfer is not customarily done when an officer is injured.
(4) On August 28, 1998, Plaintiff's Line of Duty Application submitted on August 28, 1998 was denied.
(5) On November 11, 1998, Plaintiff's second application for disability retirement was denied even though she provided medical documentation of problems with right wrist/shooting hand. Plaintiff was restored to active duty with serious injury to her right wrist.
(6) On December 26, 1998, Plaintiff was threatened with suspension by Captain Thomas Ryan, formally of the Police Academy, when Plaintiff refused to stay beyond the end of her midnight to 8:00 a.m. shift. Plaintiff had a moving van scheduled to arrive at her apartment to move that day.
(7) On February 19, 1999, Plaintiff was ordered to surrender her off-duty weapon due to medical disability.
(8) On February 24, 1999, Plaintiff was involuntarily forced to retire due to the intolerable working condition brought on by the continued discrimination and retaliation she suffered and was force[d] to endure since August 11, 1995.
While this incident occurred after Plaintiff filed the Complaint in the 1996 Action, Plaintiff's Amended Complaint in that action, filed on April 11, 1997, explicitly complained of "[c]hanged and lowered performance evaluations." Fact Sheet attached to Amended Complaint at 3. Given that Plaintiff has complained only of two performance evaluation changes, one in February 1996 and in January 1997, the 1996 Action Amended Complaint's use of the plural indicates that it referred to both instances. See Charles Decl. ¶¶ 47, 54-55. Since the January 1997 performance evaluation change was actually alleged in the 1996 Action, it cannot serve as the basis for recovery in the instant action. Cf. Woods, 972 F.2d at 40-41.
Pl. Mem. in Opp. at 11 (citations to Charles Decl. omitted).
To establish a prima facie case of discrimination under Title VII or the NYSHRL based on race or gender, a plaintiff must show (1) membership in a protected class, (2) qualification for the employment, (3) an adverse employment decision, and (4) circumstances that give rise to an inference of discrimination.See McDonnell Douglas, 411 U.S. at 802; Dawson v. Bumble Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Spencer v. City Univ. of New York, 932 F. Supp. 540, 546 (S.D.N.Y. 1996).
It is undisputed that Plaintiff, as an African-American woman, satisfies the first prong, and Defendants concede for the purposes of this motion that Plaintiff was qualified for the jobs she held and sought. Def. Mem. at 14.
"A plaintiff sustains an adverse employment action if he or she endures a `materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). Material adversity is "more disruptive than a mere inconvenience or an alteration of job responsibilities" and "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (quotingCradv v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).
None of the facts alleged by Charles that post-date the filing of the 1996 Action rises to the level of material adversity. See Weeks v. New York State, 273 F.3d 76, 86-87 (2d Cir. 2001) (stating that "[i]t hardly needs saying that a criticism of an employee . . . is not adverse" and finding a job transfer not adverse when Plaintiff, as here, made no "allegation that the reassignment constituted a demotion or otherwise").
In her brief opposing this motion, Plaintiff has limited her argument on this issue almost exclusively to events preceding the filing of the 1996 Action. See Pl. Mem. in Opp. at 21-25. Viewed in the light most favorable to her, Plaintiff's remaining allegations — criticisms from her superiors; relinquishment of her firearms when she admittedly failed recertification; a transfer not alleged to be a demotion; and denial of disability retirement without any allegation that continued work endangered her health or that she was unable to perform the duties to which she was assigned — do not constitute materially adverse employment actions. See Weeks, 273 F.3d at 86-87; Galabaya, 202 F.3d at 640; Fridia v. Henderson, 2000 U.S. Dist. LEXIS 17295 at *23 (S.D.N.Y. Nov. 30, 2000) (granting defendants' motion to dismiss when none of the alleged adverse employment decisions carried "an attendant negative result").
Though Plaintiff claims that she "was involuntarily forced to retire," the record does not reveal that Defendants terminated Charles. Neither do the facts support Plaintiff's assertion that she was constructively discharged. See Spence v. Maryland Casualty Co., 995 F.2d 1147, 1156-58 (2d Cir. 1993). Defendants' alleged discriminatory actions did not create a situation "so intolerable that a reasonable person in [her] position would have felt compelled" to resign. Id. at 1157; see also Stembridge v. City of New York, 88 F. Supp. 2d 276, 284 (S.D.N.Y. 2000).
Furthermore, Plaintiff has presented no evidence supporting an inference that Defendants' actions since the filing of the First Complaint were the result of discriminatory intent. To the extent there is any evidence on the record tending to show racial or gender animus, it appears to relate only to claims that were litigated in the 1996 Action. See Loretini Deposition Transcript, attached as Ex. D to the Oct. 27, 2006 Friedrich Decl.; Reports of Robert Faust ("Faust Reports"), attached as Ex. B to the Oct. 27, 2006 Friedrich Decl. All that remains are Plaintiff's perceptions of being discriminated against, which are insufficient to survive summary judgment. See Bickerstaff v. Vassar College, 196 F.3d 435, 456 (2d Cir. 1999); Curtis v. Airborne Freight Corp., 87 F. Supp. 2d 234, 249 n. 20 (S.D.N.Y. 2000).
The reports of Robert Faust, Plaintiff's purported expert witness, on their face were prepared for the 1996 Action and focus on the claims raised by Charles in that case. Further, these reports do not appear to implicate any of Defendants' actions which are properly at issue in the instant action, as they address disciplinary charges, civilianization, issuance of Command Disciplines, and the methodology of the NYPD's 1998 "Report of the Disciplinary Review Task Force." See Faust Reports, Fifth Report, ¶¶ 2-6.
Due to the fact that Plaintiff has failed to state a prima facie claim of discrimination, it is unnecessary to reach Defendants' other arguments on this issue.
Retaliation Has Not Been Established
To establish a prima facie case of retaliation under Title VII or the NYSHRL, a plaintiff must establish that (1) she was engaged in a protected activity, (2) the employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a causal connection between the protected activity and the adverse employment action. See Holtz v. Rockefeller Co., 258 F.3d 62, 79 (2d Cir. 2001); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312-13 (2004) (applying the same standard for NYSHRL retaliation claims).
For an employment action to qualify as retaliation, it must be "materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006) (citation and quotation marks omitted). "Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances."Id. at 2417 (citation and quotation marks omitted). This standard is somewhat broader than the adverse employment action standard utilized in substantive Title VII discrimination cases and analyzed above. See id. at 2414.
Even under the more generous White interpretation, Plaintiff has failed to demonstrate that any of Defendants' actions were materially adverse. "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm." Id. There is no evidence in the record that Plaintiff suffered a cognizable harm from any of Defendants' actions subsequent to the filing of the 1996 Action. Neither an easily-proved pecuniary injury due to termination or suspension without pay nor the sort of non-monetizable, yet still actionable, harm resulting from the loss of prestige or professional opportunity is evident in the complaint or Plaintiff's submissions in opposition to this motion.
In addition, Charles has not established a causal connection between her EEO complaints or EEOC charges and Defendants' actions. Plaintiff engaged in protected activity by complaining of discrimination internally to the NYPD's EEO office on: August 14, 1995; August 31, 1995; January 11, 1996; January 12, 1996; March 14, 1996; April 1, 1996; April 18, 1996; and February 3, 1997. Plaintiff's external charges filed with the EEOC on June 26, 1996, September 13, 1996, and December 19, 1996 also qualify as protected conduct.
Except for Plaintiff's failure to qualify at the firing range on June 6, 1997 and her transfer to the Communication Section on July 1, 1997, none of Defendants' complained of actions occurred within eighteen months of February 3, 1997, the date of Plaintiff's final discrimination complaint. While "there is no bright line distinction for how close in time an adverse action must be to the protected activity" in order to establish an inference of causation, Uddin v. City of New York, 427 F. Supp. 2d 414, 433 (S.D.N.Y. 2006), courts have routinely found much shorter gaps of time insufficient to show causation. See Shah v. Consol. Edison Corp., 2005 U.S. Dist. LEXIS 4012 at *8 (S.D.N.Y. Mar 14, 2005) (gap of six months "far too long"); see also Milford v. New York City Bd. of Health, 2005 U.S. Dist. LEXIS 1131 at *26 (S.D.N.Y. Jan. 27, 2005) (finding no causation when adverse employment action occurred nine months after protected activity); Taylor v. Potter, 2004 U.S. Dist. LEXIS 15992 at *70-*71 (S.D.N.Y. Aug 16, 2004) (same, after eight month gap);Dodson v. CBS Broad. Inc., 2004 U.S. Dist. LEXIS 10787 at *76 n. 27 (S.D.N.Y. June 15, 2004) (same, after eight month gap); Knight v. City of New York, 303 F. Supp. 2d 485, 497 (S.D.N.Y. 2004) (same, after fifteen month gap).
Even the shorter delay of over four months between the Plaintiff's February 3, 1997 EEO complaint and the firing range incident on June 6, 1997 and her transfer on July 1, 1997 is insufficient to establish a causal connection, especially where, as here, there is no other evidence to support the link. See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (finding no causation when adverse employment action occurred three months after protected activity); Ponticelli v. Zurich Am. Ins. Group, 16 F. Supp. 2d 414, 436 (S.D.N.Y. 1998) (two-and-a-half month gap "hardly the close proximity of time" necessary).
Due to the fact that Plaintiff has failed to state a prima facie claim of retaliation, it is unnecessary to reach Defendants' other arguments on this issue.
Violation of 42 U.S.C. §§ 1981 and 1983 Has Not Been Established
Absent a violation of Plaintiff's own rights, she cannot hold Defendants liable under 42 U.S.C. §§ 1981 and 1983. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989); Los Anaeles v. Heller, 475 U.S. 796, 799 (1986). Accordingly, Plaintiff's § 1981 and § 1983 claims must be dismissed.
Despite the enactment of 42 U.S.C. § 1981(c), see Anderson v. Conboy, 156 F.3d 167, 176 n. 17 (2d Cir. 1998), there is no doubt that a § 1981 violation still requires a denial of the plaintiff's rights.
Conclusion
As set forth above, Defendant's motion for summary judgment is granted and Plaintiff's complaint is dismissed. The Clerk of the Court is ordered to enter judgment in favor of Defendant and close this case.
It is so ordered.