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holding that an eleven month lag between plaintiff's comments and alleged retaliation fails to suggest the necessary causal link
Summary of this case from Figueroa v. WeisenfreundOpinion
No. 96 CV 1131 (RJD).
August 25, 2004
MEMORANDUM ORDER
The plaintiff Lisa King brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983 alleging that she was discriminated against in assignments and transfers; subjected to inappropriate discipline, including termination; treated differently during her pregnancy because of her race; and subjected to a hostile working environment. The plaintiff also alleges that the defendants Taylor, Gamberini, and Cuccio retaliated against her in violation of the First Amendment after she complained about the treatment of minorities. Defendants now seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Court concludes that the plaintiff has not produced sufficient admissible evidence to defeat a motion for summary judgment. Accordingly, defendants' motion is granted in its entirety.
At a pre-motion conference on January 1, 2003, plaintiff withdrew her claim of disability discrimination. Additionally, at oral argument on this motion, the plaintiff agreed to withdraw her claims against the NYPD and her Title VII claims against the individual defendants. See Transcript of Oral Argument of this Motion (Tr.), March 12, 2004, at 3, 22. Thus, the only remaining claims are the Title VII claim against the City of New York; the § 1983 race discrimination claims and First Amendment claim against defendants Taylor, Gamberini, and Cuccio; and the § 1981 claims against the City and the individual defendants.
BACKGROUND
A. General Background
Lisa King, an African American, graduated from the Police Academy and began working for the New York City Police Department ("NYPD") in January 1982. See Defendants' Rule 56.11 Statement 3; Deposition of Lisa King at 18-19, Def. Ex. B. She was initially assigned to foot patrol in Brooklyn but was later transferred to another precinct. See id. In November 1983, five months after she was transferred, the plaintiff resigned from the NYPD and relocated to Seattle, Washington. See Def. Ex. A at 19-20. The plaintiff returned to New York in December 1984 and applied for reinstatement with the NYPD. She was assigned to the 90th Precinct in Brooklyn as a foot patrol officer. See id. at 21-22.
In March 1987, the plaintiff began working as an Investigator in the Applicant Processing Division ("APD") of the NYPD. See id. at 22-23. Within the APD, the plaintiff worked in the J Squad Unit, which was responsible for conducting background checks of civilian applicants. See Def. Ex. B at 36, 38. At the time, there were approximately 100 investigators in the division. See Def. Ex. B. at 33-34. Captain William Taylor was the Commanding Officer. See Deposition of Captain Taylor at 8-9, Def. Ex. C. Plaintiff had very little interaction Captain Taylor.See Def. Ex. B at 79-80. Her four supervisors were Sergeant Biggers, Lieutenant Lamont, Lieutenant Braithwaite, and Lieutenant Rodman. See id. at 117-18. Lts. Lamont and Braithwaite are black and Sgt. Biggers and Lt. Rodman are white.See id. at 39-40, 123. The plaintiff reported directly to Sgt. Biggers and Lt. Braithwaite and worked with these officers on a daily basis. See id. at 37. Sgt. O'Neil, who is black, was the Sergeant in charge of plaintiff's squad, the J Squad. See id. at 86-88, 126.
On or about April 12, 1991, another African-American female officer in the APD committed suicide. See Pl.'s Ex. A ¶ 8. Immediately following the officer's death, plaintiff spoke with investigators about how the officer was under stress and pressured by Captain Taylor to finish her cases. Id. ¶ 10; Def. Ex. B. at 24-25. The plaintiff told investigators that only black police officers received such treatment from Captain Taylor and testified that "only the blacks in the unit were subject to a carrot dangling like in front of them about promotions to detective." Def. Ex. B. at 26. In addition to herself and the deceased officer, plaintiff identified another African American female was allegedly subject to discriminatory treatment by Captain Taylor. Id. at 27.
At the time of the officer's suicide, the plaintiff was seven and half months pregnant. On or about April 13, 1991, one day after the incident, the plaintiff went on maternity leave. See id. at 45. While the plaintiff was on maternity leave, Lt. Lamont conducted a review of her case files. See Def. Ex. C at 18, 39. Integrity Control Officers at the APD regularly review investigators' case files, or direct supervisors to conduct such reviews, to ensure that the investigators are complying with department procedures. See id. at 27. If a discrepancy or error is discovered, the Integrity Officer is directed to bring the variance to the attention of the captain. See id. The defendants maintain that the investigation of the plaintiff's case files was part of the APD's routine procedure of monitoring its investigators. Lt. Lamont's investigation revealed several discrepancies in the plaintiff's work files. Specifically, Lt. Lamont discovered that the plaintiff had altered applications and advised a candidate to make false statements on her application. See id. at 18, 39.
The plaintiff returned from maternity leave on September 9, 1991, and was transferred from the APD to the 32nd Precinct, pending the resolution of the investigation into her case files.See Def. Rule 56.1 Statement at ¶ 27. Her supervisor at the 32nd Precinct was defendant Louis Gamberini. See Def. Ex. A. 26.
On March 19, 1992, the plaintiff received formal Charges and Specifications. See March 19, 1992 Charges and Specifications, Def. Ex. F. The plaintiff was charged with altering official department records (she used white out on civilian applications), advising a civilian candidate to make false statements on her questionnaire, and failing to promptly obey a direct order. See id. Although Captain Taylor authorized the charges, the proceedings were initiated by Sgt. O'Neil. See Def. Rule 56.1 Statement ¶ 33, Ex. B. at 116, 123.
An administrative hearing was held on October 14, 1992 before an Administrative Law Judge ("ALJ"). See Def. Rule 56.1 Statement ¶ 34. The plaintiff was represented by a privately retained attorney. See Ex. B at 201-02. The ALJ found the plaintiff guilty of four of the nine charges: three charges of altering official department records and one charge of advising an applicant to make false statements on a questionnaire. She recommended that the plaintiff be dismissed. Rather than termination, however, the plaintiff was placed on probation for one year. During her probation period, the plaintiff was subject to termination by the Police Commissioner at any time. See Def. Rule 56.1 Statement ¶ 39. On March 8, 1993, the Commissioner approved the penalty, and on April 23, 1993, the plaintiff signed a document acknowledging the terms of her probation. See Disposition of Charges, Def. Ex. D; Dismissal Probation Document, Def. Ex. F.
In May 1993, while on probation, the plaintiff had her second child and went on maternity leave. See Def. Ex. A. ¶ 31. NYPD policy requires all employees on maternity leave to check in regularly with NYPD physicians for medical supervision. See Def. Rule 56.1 Statement ¶ 47. The plaintiff was supervised by defendant Dr. Cuccio. The plaintiff alleges that Dr. Cuccio and defendant Gamberini treated her differently than other white officers who were on maternity leave and she claims that they failed to take into account the difficulties of her pregnancy. The plaintiff returned to work after six weeks on maternity leave. See Def. Ex. A ¶ 31. She claims that Dr. Cuccio recommended that she go back to work against the recommendation of her private physician. See id. ¶ 31.
Upon returning from maternity leave, between August 9, 1993 and October 9, 1993, the plaintiff used 60 days of her sick leave. This extended her probationary period by at least 60 days. See Def. Rule 56.1 Statement ¶ 53; Absence and Tardiness Report, Def. Ex. L. As per NYPD policy, officers out on sick leave were required to remain at home except as authorized by the department. See Ex. B at 227. The "Absence Control" unit of the NYPD makes telephone calls and home visits to ensure that officers are complying with these regulations. See id. at 228. On October 25, 1993, the plaintiff was charged with being absent form her residence without permission. See Def. Ex. I.
On December 16, 1993, the plaintiff was also charged with failing to maintain a valid driver's license. See Def. Ex. B at 239; Def. Ex. J. NYPD policy requires all officers to maintain a valid driver's license. The plaintiff failed to maintain car insurance and as a result, her license was suspended in November 1993. See Def. Ex. B at 239-40. She failed to inform her supervisor that her license had been suspended.
By letter dated April 5, 1994, the plaintiff was terminated.See Def. Ex. K.
B. Procedural Background
On October 30, 1992, the plaintiff filed a charge of discrimination with the EEOC. In her EEOC charge, the plaintiff alleges racial discrimination, citing the charges filed against her in March 1992 and the denial of her promotion to detective as a result of the September 1991 transfer from the APD to the 32nd Precinct. The EEOC informed the plaintiff that her allegations regarding the alleged transfer and promotion were untimely. The plaintiff acknowledged that the charges regarding the transfer were untimely and decided to proceed on the basis of the March 1992 charges. See Def. Ex. G.
The plaintiff filed her complaint in this action on March 13, 1996, and amended her complaint on March 14, 1996. See Def. Ex. A. The plaintiff alleges race discrimination based on the disciplinary actions taken against her, the assignments given to her, her 1991 transfer from the APD to the 32nd precinct, and the treatment she received while she was pregnant. The plaintiff also claims that she was retaliated against after she spoke to investigators about the NYPD's treatment of minority officers.
DISCUSSION
A. Standard for Summary Judgment
Summary judgment is appropriate where there is "no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). In deciding a summary judgment motion, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party bears the burden of showing that there are no genuine issues of material fact, and may fulfill this burden by demonstrating that the non-moving party has failed to produce sufficient evidence to support an issue for which that party has the burden of proof.Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d. Cir. 1994); Chelates Corp. v. Citrate, 477 U.S. 317, 323 (1986).
The non-moving party must demonstrate that genuine issues of fact do indeed exist and that the moving party is not entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). The non-moving party must do so not simply by asserting "mere allegations or denials of the adverse party's pleading" but by setting forth "specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587. "Only disputes of facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
In employment discrimination claims, where the intent of the employer is often at issue, a "trial court must be cautious about granting summary judgment." Gallo, 22 F.3d at 1224. Since it is often difficult to find direct evidence of an employer's discriminatory intent, a trial court must carefully examine the record for circumstantial proof of discriminatory motive. Id. "Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and may grant summary judgment to the employer." Johns-Davila v. City of New York, No. 99-1885, 2000 WL 1725418, at *4 (S.D.N.Y. November 20, 2000).
B. Race Discrimination Claims
Claims of discrimination under Title VII are analyzed at the summary judgment stage under the McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), burden-shifting test. To establish a prima facie case under Title VII, the plaintiff must show that she 1) is a member of a protected class 2) who performed her job satisfactorily (or who was qualified for a new position) 3) who was discharged or not offered the new position) and 4) under circumstances giving rise to an inference of discrimination (or retaliation).McDonnell Douglas, 411 U.S. at 802; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Stratton v. Dep't for the Aging for the City of New York, 132 F.3d 869 (2d Cir. 1997).
The plaintiff's complaint is rather difficult to parse. It appears that she asserts race discrimination claims against both the City and the individual defendants under 42 U.S.C. § 1981. She also appears to assert race discrimination claims under § 1983 against defendants Taylor, Gamberini, and Cuccio. With respect to her § 1981 claim against the City, the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom. See Patterson v. County of Oneida, et al., 375 F.3d 206, 226 (2d Cir. 2004) (citing Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 733-36 (1989)). The plaintiff has made no effort whatsoever to demonstrate that the alleged discriminatory acts were performed pursuant to a policy or custom of the City of New York. Accordingly, her § 1981 claim against the City is dismissed.
With respect to the plaintiff's §§ 1981 and 1983 claims against the individual defendants, employment discrimination claims under those sections are analyzed under the same framework as Title VII claims. See Patterson, 375 F.3d at 225 (citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (§ 1981);Sorlucco v. New York City Police Dep't, 888 F.2d 4, 6-7 (2d Cir. 1989) (§ 1983)). Therefore, for the reasons plaintiff's Title VII claims are denied, her §§ 1981 and 1983 claims are denied as well.
Plaintiff bears the initial burden of establishing a prima facie case of discrimination. When the plaintiff has successfully established the prima facie case, the burden of production then shifts to the defendant, who must advance a legitimate, non-discriminatory reason or reasons supported by admissible evidence for his actions. Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d. Cir. 1997). The defendant's burden of production at this stage of the analysis is not onerous; any legitimate reason will rebut the presumption. See Ofudu v. Barr Laboratories, Inc., 98 F. Supp. 2d 510, 514 (S.D.N.Y. 2000). After the defendant articulates a legitimate reason for the action, the plaintiff must show that the reason proffered by the employer is in fact a pretext for discrimination. Indeed, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Ctr., 509 U.S. at 507.
Because the plaintiff is an African-American female, she satisfies the first prong of the prima facie case for each of her claims. Additionally, because she was placed on probation and ultimately terminated, she was subjected to adverse employment actions and therefore satisfies the third prong as well. Thus, the issue is whether the plaintiff is able to satisfy the remaining two elements. Although all of her claims ultimately fail, each will be addressed in turn.
1. Discipline and Termination
a. Satisfactory Job Performance
The defendants maintain that the plaintiff cannot establish that she performed her job satisfactorily. Courts assess whether an employee's job performance was satisfactory based on "the employer's criteria for the performance of the job — not the standards that may seem reasonable to the judge or jury."Thornley v. Penton Publishing Inc., 104 F.3d 26, 29 (2d Cir. 1997). The ultimate question is whether "the employee's performance met [her] employer's legitimate expectations."Thermidor v. Beth Israel Medical Center, 683 F. Supp. 403, 412 (S.D.N.Y. 1988).
Here, after an administrative trial, an ALJ found the plaintiff guilty of four charges of altering civilian applications. Furthermore, during her probation, the plaintiff received two additional Charges and Specifications for failure to comply with department regulations. While the charges against the plaintiff clearly reflect performance deficiencies, drawing all favorable inferences in favor of the non-movant and noting that "satisfactory job performance is a fairly low threshold to meet," the plaintiff arguably satisfies the second prong of this analysis. Ngwu v. The Salvation Army, No. 96-0058, 1999 WL 2873, at *3 (S.D.N.Y. Jan. 4, 1999). "[M]isconduct indicates a high likelihood that an employee's performance is not satisfactory . . . [but] it is at least theoretically possible that an employee committed some misconduct, and yet, in the aggregate performed satisfactorily."Thornley, 104 F.3d at 29-30.
The plaintiff was employed by the NYPD for over ten years, yet the defendants have produced no performance evaluations for the plaintiff. Additionally, although the ALJ recommended termination for the plaintiff's infractions, the Commissioner opted for the less severe sanction of probation. Accordingly, although highly tenuous, a reasonable juror might conclude that the plaintiff generally performed her job in a satisfactory manner.
b. Inference of Discrimination
The defendants further contend that the plaintiff is unable to demonstrate the fourth element of the prima facie case: that the employer's actions took place under circumstances giving rise to an inference of discrimination. An inference of discrimination may be established by a showing of disparate treatment — that is, a showing that "the employer treated plaintiff less favorably than a similarly situated employee outside [her] protected group." Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotations omitted). "Although the ultimate burden in making a prima facie case is slight, the issue of whether fellow employees are similarly situated is somewhat strict." Lanzo v. City of New York, No. 96-3242, 2000 WL 804628, at *6 (E.D.N.Y. May 18, 2000). "Similarly situated" means the other employee "must have engaged in conduct similar to the plaintiff's without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it." Id. (quoting Francis v. Runyon, 928 F. Supp. 195, 203 (E.D.N.Y. 1996)). "There must be a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical." Soliman v. Deutsche Bank AG, No. 03-104, 2004 WL 1124689, at *9 (S.D.N.Y. May 20, 2004). Generally, whether two employees are similarly situated is a question of fact for the jury. Mandell, 316 F.3d at 379.
The plaintiff alleges that she is similarly situated to Officer Julia Thorne, a white police officer who worked in the APD around the same time as the plaintiff. In June 1990, Sgt. Gerard Rodman conducted an investigation of Officer Thorne's files and discovered nineteen discrepancies. The discrepancies were wide ranging and included such violations as failing to obtain employment verification and accepting files with forged G.E.D.'s.See Julia Thorne's Investigation Memorandum, Pl. Ex. E. Sgt. Rodman recommended that Officer Thorne be retrained and instructed in the proper procedure for investigating applicants.See id. The plaintiff argues that the variances discovered in Officer Thorne's files were similar to the allegations against the plaintiff, yet the measures taken against Officer Thorne were less severe.
The discrepancies discovered in Officer Thorne's files, however, are qualitatively different than those noted in the plaintiff's: the plaintiff actively altered civilian applications, whereas Officer Thorne unknowingly accepted false or incomplete applications. Officer Thorne's actions are best characterized as negligent, the plaintiff's as intentional. This qualitative difference distinguishes their conduct and explains the difference in the discipline that each received. Because Officer Thorne and the plaintiff engaged in different conduct, they are not similarly situated. Accordingly, the plaintiff has failed to demonstrate that her probation and ultimate termination took place under circumstances giving rise to an inference of discrimination.
c. Non-Discriminatory Reason
Even if the plaintiff were able to make out a prima facie case, the defendant has plainly provided legitimate, non-discriminatory reasons for its employment decisions. The plaintiff was placed on dismissal probation after an ALJ found her guilty of charges of altering civilian applications. Furthermore, while on dismissal probation, the plaintiff failed to comply with several departmental requirements. Thus, the defendants claim to be justified in their decision to terminate the plaintiff.
d. Pretext
Since defendant has proffered non-discriminatory reasons for the action taken against plaintiff, under the McDonnell Douglas analysis the plaintiff must show that these reasons are pretextual. The plaintiff fails to meet this burden.
In an effort to demonstrate pretext, the plaintiff points to the timing of the investigation into her case files. She argues that after she spoke with investigators about another officer's suicide, her supervisors started investigating her case files and "digging deep" into her past. While it is true that the investigation into plaintiff's case files took place after she spoke out about this tragic episode, other than mere speculation, the plaintiff has offered no evidence demonstrating a nexus between her comments and the investigation. The plaintiff's comments were made in April 1991 and the charges and specifications were not brought until March 1992. There is simply no credible evidence before this Court to support the plaintiff's contention that Captain Taylor orchestrated these charges. The review was conducted by Lt. Lamont, who is African American, and the charges were initiated by Captain O'Neil, who is also African-American. Furthermore, the record reflects that supervisors routinely reviewed officers' case files. The plaintiff's own evidence, the report of the investigation of Officer Thorne's files, indicates that this type of supervisory review was not out of the ordinary, and that both Caucasian and African-American officers were subjected to this scrutiny.
The plaintiff also attempts to show pretext by pointing to her emotional condition at the time of her termination. She claims that at the time she was terminated, she had a deteriorating psychological condition that required hospitalization and medication. She alleges that defendants were aware of her mental health problems, and in light of her difficulties, should have overlooked her failure to maintain automobile insurance.
It is important to note that the ALJ recommended that the plaintiff be terminated in the first instance. It was the Commissioner who chose to place the plaintiff on probation, rather than terminate her. If the defendants were looking to fire the plaintiff, they had ample opportunity and apparent justification to do so well before April 5, 1994.
The plaintiff also contends that her termination was illegal because she was terminated more than a year after she was placed on dismissal probation. Pursuant to § 14-115 of the New York City Administrative Code, an employee's period of dismissal probation may not exceed one year. The period of probation, however, may be "extended by the number of days when the probationer does not perform the duties of the position, for example: . . . sick leave." Rule 5.2.8(b) of the Rules of the Department of Citywide Administrative Services. From August 9, 1993 to October 9, 1993, the plaintiff used 60 days of sick leave. See Def.'s Exhibit L. Therefore, the plaintiff's probationary period was extended at least until May 7, 1994 and her termination on April 5, 1994 did not violate the New York City Administrative Code § 14-115.
Because plaintiff has failed to raise a genuine issue of fact for trial on the issue of pretext, the plaintiff's race discrimination claim must fail. See Johnson v. Nat'l Maritime Union Pension and Welfare Plans, No. 95-4112, 1998 WL 32759, at *4 (S.D.N.Y. Jan. 29, 1998) (holding that when plaintiff has provided nothing more than conclusory allegations of discrimination, and when the defendant has put forth convincing legitimate business reasons for the challenged employment action, conclusory allegations are insufficient to establish pretext and defeat a summary judgment motion).
2. Disparate Treatment While Pregnant
The plaintiff also contends that the police department insisted that she come to work during her pregnancy despite her personal physician's recommendation that she remain on medical leave.See Pls. Exhibit A ¶ 24. She further contends that Officers Virginia Caccioli and Ellen Fitzgerald, white APD officers, were permitted to remain out on medical leave during their pregnancies.
As with her termination claim, the plaintiff is unable to demonstrate race discrimination. In her deposition, the plaintiff testified that Officer Caccioli, who was permitted to remain on medical leave for the duration of her pregnancy, had a high-risk pregnancy. The plaintiff's pregnancy was not high risk. Therefore, the plaintiff is not similarly situated to Officer Caccioli. Plaintiff testified that Officer Fitzgerald was permitted to take time off because of morning sickness. The plaintiff testified that she too was able to take time off during her pregnancy for morning sickness. Accordingly, the plaintiff has failed to demonstrate an inference of discrimination on the basis of how these individuals were treated.
3. Transfer
The plaintiff further claims that she was discriminated against on the basis of her race because she was transferred and consequently denied a job promotion. On September 25, 1991, the plaintiff was transferred from the APD. She claims that she was eligible for a promotion to Detective Third Grade on September 27, 1991, but because of her transfer from the APD, she lost her eligibility for that promotion. See Affidavit of Lisa King, Def. Ex. G.
Defendants argue that the plaintiff's transfer claim is time-barred. It is well established that a plaintiff bringing suit under Title VII must first exhaust administrative remedies by filing a claim in a timely manner with the EEOC or a state civil rights agency. See 42 U.S.C. § 2000e-5(e) and (f);Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001); Castellano v. City of New York, 142 F.3d 58, 72 (2d Cir. 1998); Hawana v. City of New York, 230 F. Supp.2d 518, 525 (S.D.N.Y. 2002). Failure to timely file a complaint will result in one's claims being dismissed. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). The time limit for filing with the EEOC in a state that has a state or local equal employment agency is 300 days from the date of the adverse employment practice. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002); Ofudu, 98 F. Supp. 2d at 514; Nweke v. Prudential Ins. Co. Of Am., 25 F. Supp.2d 203, 216 (S.D.N.Y. 1998). Accordingly, only discriminatory incidents that take place within the 300 days prior to the date of filing are actionable.
Here, the plaintiff claims that she was wrongfully transferred on September 25, 1991. She did not, however, file with the EEOC until October 30, 1992, considerably more than 300 days later.See Def. Exhibit G. Therefore, the plaintiff's Title VII claim based on her allegedly improper transfer is time-barred.
Any claim that plaintiff may assert with respect to her transfer under 42 U.S.C. §§ 1981 or 1983 is time-barred as well. The statue of limitations for §§ 1983 and 1981 actions brought in New York is three years. See, e.g., Patterson v. County of Oneida, New York, et al., No. 03-7535, 2004 WL 1576488, at *15 (2d Cir. July 15, 2004); Singleton v. City of New York, 632 F.2d 185, 189 (2d Cir. 1980). The plaintiff filed her complaint in this action on March 13, 1996, more than three years after the allegedly discriminatory transfer. Therefore, any §§ 1981 or 1983 claims are untimely as well.
The plaintiff's transfer claim would fail even if it were not time-barred. Assuming the plaintiff was able to demonstrate that she performed her job satisfactorily, she cannot establish that her transfer was motivated by discriminatory intent. When plaintiff returned from maternity leave, there were outstanding charges against her directly related to her work at the APD. Defendants maintain that she was transferred from the APD pending the resolution of those charges. Under the NYPD Patrol Guide, such transfers or changes in assignment are permitted and appropriate. See Def.'s Exhibit H. The plaintiff has offered no evidence, other than mere speculation, to demonstrate that the transfer was motivated by discriminatory animus. Because the plaintiff has presented no credible evidence to show that the transfer took place under circumstances giving rise to an inference of discrimination, her transfer claim fails.
C. Hostile Work Environment Claim
The plaintiff does not allege a separate hostile work environment cause of action in her complaint. However, at oral argument on this motion, plaintiff's counsel argued that there was a viable hostile working environment claim based on the plaintiff's various transfers and assignments. Tr. at 22. Therefore, for the sake of thoroughness, the Court will address the merits of this claim.
Title VII prohibits workplace harassment that is so severe and pervasive as to alter the plaintiff's conditions of employment.Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000). The harassment must be both objectively and subjectively objectionable. Harris, 510 U.S. at 21. Factors relevant to the analysis include the frequency of the conduct, its severity, whether it was physically threatening, and whether it interfered with the employee's work performance. Id. A single inappropriate comment is insufficient to trigger liability.Id.; Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Only when a workplace is "permeated with discriminatory intimidation" will harassment rise to a level actionable under Title VII. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996).
Aside from counsel's passing remarks at argument, the "plaintiff has made little effort to show that [her] workplace was pervaded with the necessary level of discriminatory intimidation." Murungi v. U.S. Dept' of Veteran Affairs, 136 F. Supp. 2d 154, 157 (W.D.N.Y. 2001). The record before the Court contains no evidence of racial slurs or epithets. See id. The only comment the plaintiff points to is a remark allegedly made by Sgt. Gamberini to plaintiff stating, "I don't care if you commit suicide or not." Pl.'s Ex. A ¶ 20. Although such a comment is clearly inappropriate, it is race neutral. Furthermore, although the plaintiff was transferred several times, she fails to establish that these transfers were motivated by her race. As discussed above, the defendants have provided legitimate business reasons for the transfers, namely the charges and specifications, and the plaintiff has failed to show that these reasons are pretextual. Accordingly, the plaintiff's hostile working environment claim must be dismissed. D. Retaliation Claim
The defendants correctly observe that the complaint does not contain an articulated First Amendment claim and argue that because the plaintiff first raises such a claim only in her opposition papers, it should not be considered by the Court.See Defendants' Reply Brief at 2. She does claim that she was retaliated against. While defendant's suggestion is an inviting proposal, it would not be an appropriate resolution of the claim. Plaintiff did plead retaliation, albeit vaguely, and defendants had every opportunity to explore that allegation during discovery.
To sustain a § 1983 retaliation cause of action based on a First Amendment free speech claim, a plaintiff must establish that: (1) her comments implicated a matter of public concern; and (2) she suffered an adverse employment action; and (3) her speech was a "substantial or motivating factor" behind the defendants' retaliation. Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003); see also de Silva v. New York City Transit Authority, No. 96-2758, 1999 WL 1288683, at *16 (Nov. 17, 1999 E.D.N.Y.).
The plaintiff maintains that defendants Captain Taylor, Sgt. Gamberini, and Dr. Robert Cuccio retaliated against her because of the comments she made to the investigators following her colleague's suicide. In her deposition, the plaintiff stated that she told investigators that Captain Taylor pressured the officer to finish her work. She also told investigators that "only the blacks in the unit were subject to a carrot dangling like in front of them about promotions to detective. Captain Taylor would threaten people if their cases weren't in. Only blacks. Connie complained to me about it and I know that's what caused her to do that." Def. Ex. at 26. It appears that she is arguing that both the investigation into her case files and the way she was disciplined for the discrepancies discovered during the course of the investigation, were retaliatory. Because the plaintiff's comments allege discriminatory treatment towards African-American police officers, they clearly implicate a matter of public concern. See Connick v. Myers, 461 U.S. 138, 148, n. 8 (1983) (noting that the constitutional right to protest racial discrimination [is] a matter inherently of public concern"). Therefore, the first element of the prima facie case is satisfied. The plaintiff was transferred, and thereby denied a promotion, and she was eventually terminated. Thus, the second prong, the adverse employment action, is established as well.See Feingold v. New York, 366 F.3d 138, 160 (2d Cir. 2004) (finding that termination satisfied the adverse employment prong); see also Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995) (listing adverse employment actions). The plaintiff, however, is unable to demonstrate that her comments were a substantial motivating factor in the defendants' decision to transfer or terminate her.
To demonstrate that the protected speech was a substantial motivating factor in the adverse employment actions, the plaintiff must establish a causal connection between the speech and the adverse employment action. See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). In other words, the plaintiff must show that "the adverse employment action would not have been taken absent the employee's protected speech." Id. This causal nexus can be established either directly or indirectly by circumstantial evidence showing that the adverse employment action followed the protected speech. Id. Summary judgment is precluded if questions about the employer's motives predominate.Id. (citing Piesco v. City of New York, 933 F.2d 1149, 1155 (2d Cir. 1991), abrogation recognized by Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995)).
The plaintiff, however, has failed to demonstrate the necessary causal nexus between her comments and the investigation. The plaintiff argues that it was only after she spoke with investigators that her supervisors started inquiring into her case files. She spoke with investigators in April 1991, and although the investigation into her case files took place after April 1991, it is unclear exactly when the review was initiated. It is clear that formal charges and specifications were not brought until March 1992. Although the Second Circuit "`has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship,'" it is clear that the lag between the plaintiff's comments and the investigation in this case fails to suggest the necessary temporal link. Reuland v. Hynes, No. 01-5661, 2004 WL 1354467, at *11 (E.D.N.Y. June 17, 2004). See generally Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 1998) (finding no causal connection between protected speech and adverse employment action where among other things, there was a thirteen month lag between the letter and the dismissal); Reuland, 2004 WL 1354467 at *11 (citing Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001) (five month gap sufficient to support an allegation of causal connection); Grant v. Bethelehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980) (holding that eight month gap between EEOC complaint and retaliatory action suggested a causal relationship)); Clarke v. City of New York, No. 98-3715, 2001 WL 876926, at *7 (E.D.N.Y. Aug. 1, 2001) (holding that plaintiff could not establish a temporal link because the speech occurred six months to two years before the reassignment).
Additionally, Lt. Lamont, who is African American, conducted the review of the plaintiff's case files. The plaintiff has presented no credible evidence suggesting that Captain Taylor ordered Lt. Lamont to conduct the investigation. Moreover, the plaintiff has presented no evidence that Lt. Lamont was even aware of the plaintiff's comments. See Clarke, 2001 WL 876926 at *7 (finding no causal connection because, among other factors, none of the defendants who made the decision to reassign the plaintiff was aware of his protected speech). Furthermore, as previously discussed, the APD routinely reviewed investigators' case files. The plaintiff has produced no evidence showing that she was singled out for review or that the review of her case files was out of the ordinary.
In addition to the initial investigation, the plaintiff also argues that the defendants retaliated against her by transferring her and putting her on probation once they discovered the discrepancies in her files. She attempts to show that her comments were a motivating factor in her transfer and termination by showing that similarly situated employees were treated differently. Specifically, as with her race discrimination claim, it appears that the plaintiff tries to demonstrate that the way she was treated was retaliatory by showing that Julia Thorne, a white officer, was treated differently. However, as discussed in the context of her race discrimination claim, the plaintiff and Julia Thorne are not similarly situated. Thus, this argument is unavailing. Additionally, as discussed above, the defendants maintain that plaintiff was transferred from the APD pending the resolution of the charges that she altered applications. The plaintiff has presented no evidence to even suggest otherwise.
Even if the plaintiff were able to establish a causal connection, she would not prevail because the record clearly demonstrates that defendants would have reached the same decision in the absence of protected speech. Where a defendant can show that it would have taken the same adverse action in the absence of the plaintiff's protected speech, the defendant can escape liability even if the plaintiff shows that the adverse action was in part motivated by the protected speech. Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998).
Here, the plaintiff was transferred because of the pending investigation surrounding her alteration of case files, and she was terminated because she violated NYPD policies while on probation. She fails to provide any non-conclusory basis for the finding that these adverse employment actions were substantially motivated by her protected speech. Accordingly, the plaintiff's retaliation claim must fail. See Clarke, 2001 WL 876926, at *8 (noting that courts routinely grant summary judgment where employers offer legitimate business reasons for the employment actions and the plaintiff fails to offer any evidence of pretext).
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted in its entirety. The Clerk of the Court is directed to close the case.
SO ORDERED.