Opinion
Nos. 01-CV-2437 (FB)(CLP) ("Action I"), 01-CV-6515 (FB) (CLP) ("Action II").
February 3, 2005
DANIEL R. SIMONETTE, Fine, Olin Anderman, LLP, New York, NY, for the Plaintiff.
MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, MICHAEL DICHIARIA, New York, NY, for the Defendants.
MEMORANDUM AND ORDER
Plaintiff, Sonia Sylvia Pinckney ("Pinckney"), brings these consolidated employment discrimination actions against the New York City Police Department ("NYPD") and the City of New York ("the City"). In each action, she alleged myriad discrimination claims under Title VII and the Americans with Disabilities Act ("ADA"); through stipulations "so ordered" by the Court on October 10, 2003, these were winnowed down to a single claim in each action of retaliation under Title VII. See Stip'n and Order of Partial Discontinuance [in Action I] ¶ 4; Stip'n and Order of Partial Discontinuance [in Action II] ¶ 3. In Action I, Pinckney claims that beginning in August 1997 and through July 2000, she was disciplined in retaliation for filing a New York State Department of Human Rights ("SDHR") complaint in 1994. In Action II, she claims that in December 2000 and January 2001, she was retaliated against for filing charges with the EEOC and NYPD Office of Equal Employment Opportunity ("OEEO"). Defendants now moves for summary judgment on these claims. For the reasons set forth below, their motion is granted.
In their stipulation in Action II, the parties agreed that Pinckney also had a remaining claim for "discrimination based on religion." Stip'n and Order of Partial Discontinuance [in Action II] ¶ 3. In her reply memorandum, however, she withdrew this claim. See Pl.'s Mem. Law. Opp. Defs.' Mot. Summ. J. at 11.
The NYPD does not have a legal identity separate and apart from the City and can be sued only in the name of the City. See New York City Charter, Chapter 16, § 396; Wilson v. City of New York, 800 F.Supp. 1098, 1101 (E.D.N.Y. 1992) (dismissing claims against the NYPD because, as an agency of the city, it is not a suable entity). Because Pinckney's complaints do not distinguish between the NYPD and the City, the Court deems her claims against the NYPD to be claims against the City. In addition, because the NYPD is not a suable entity, the Court sua sponte dismisses it as a party to these actions.
ACTION I
A. BackgroundThe facts underlying Pinkney's retaliation claim in Action I are uncontested: In September 1994, she filed a complaint with the SDHR, alleging that she was denied a promotion because she is African American. The disciplinary actions that she contends were taken in retaliation for this SDHR complaint commenced in August 1997, shortly after she was arrested for allegedly interfering with police officers who were attempting to arrest her son in connection with a robbery. Following this incident, she was suspended from duty for ten days and then transferred to the Brooklyn Court Unit, where she was placed on modified duty. In addition, the NYPD initiated a "disciplinary case" against her, charging that during the incident she assaulted an officer, attempted to prevent an officer from effecting an authorized arrest, resisted arrest and failed to properly safeguard her firearm. On November 4, 1999, the charges were amended to include an allegation that she made false and misleading statements during the NYPD's investigation of the incident.
In April 2000, a disciplinary hearing was held before an administrative law judge ("ALJ"). At the hearing, the charge that Pinckney failed to safeguard her firearm was dismissed. On June 29, 2000, in accordance with NYPD procedures, the ALJ forwarded a draft Decision and Recommendation to Pinckney for comment. In the draft, the ALJ found that Pinckney had attempted to prevent an officer from effecting an authorized arrest, resisted arrest and made a single false and misleading statement, but that she had neither assaulted an officer nor made other false and misleading statements. Based on these findings, the ALJ recommended the loss of thirty vacation days.
After receiving the ALJ's draft Decision and Recommendation, Pinckney filed an EEOC charge on July 7, 2000, alleging that her suspension and transfer, the amendment of disciplinary charges, and the ALJ's Decision and Recommendation were all in retaliation for her SDHR complaint. On July 14, 2000, the ALJ issued a final Decision and Recommendation that mirrored the draft.
B. Discussion
The City argues that it is entitled to summary judgment because (1) Pinckney did not file an EEOC charge within 300 days of her suspension and transfer in 1997 and, therefore, any claim based on those actions is time-barred; (2) there is no a prima facie case of retaliation; and (3) in any event, there were legitimate, nondiscriminatory reasons for the NYPD's actions.
"Summary judgment is appropriate where `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.'" Collins v. New York City Transit Authority, 305 F.3d 113, 118 (2d Cir. 2002) (articulating summary judgment standard in Title VII case) (quoting Fed.R.Civ.P. 56(c)). In a Title VII retaliation case, a plaintiff bears the "burden of initially establishing a prima facie case of retaliation." Id. "To make out a prima facie case of retaliation, an employee must show that the employee was engaged in protected activity; that the employer was aware of that activity; that the employee suffered adverse employment decisions; and that there was a causal connection between the protected activity and the adverse employment action." Id. Generally speaking, on summary judgment "a plaintiff's burden of establishing a prima facie case in the context of employment discrimination law is `minimal.'" Id. However, a plaintiff cannot meet "even this low threshold [when] the circumstances of the [actions against her] do not give rise to or support an inference of . . . retaliation." Id.
With respect to the City's contention that certain aspects of Pinckney's claim are time-barred, it is uncontested that Pinckney did not file an EEOC charge within 300 days of her suspension and transfer in 1997. See Butts v. N.Y. Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) ("the statute of limitations for filing a charge of discrimination with the EEOC is 300 days"). However, a claim alleging retaliation for filing a discrimination charge is generally deemed to be "reasonably related" to the underlying charge, and thus the employee "is not required to file a second charge with the EEOC for that claim." Legnani v. Alitalia Linee Airee Italiane, S.P.A., 274 F.3d 683, 686-87 (2d Cir. 2003). As articulated by some district courts, to be "reasonably related," the initial charge of discrimination and the alleged acts of retaliation must not be too far removed in time. See, e.g., Mannion v. Attorney General, 2000 WL 1610761, at *2-3 (D. Conn. Oct. 3, 2000); Owens v. West, 182 F. Supp. 2d 180, 194 (D. Mass. 2001). Here, because of the three-year gap between Pinckney's 1994 SDHR complaint and her suspension and transfer in 1997, the Court cannot conclude that those actions were "reasonably related" temporally to her complaint; accordingly, a new filing was required.
In any event, because of this temporal gap, Pinckney has not met her minimal burden of establishing the causation element of her prima facie case with respect to any of the alleged acts of retaliation. A "causal connection can be established indirectly by showing that the protected activity was followed closely by discriminatory treatment or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." DeCintio v. Westchester Cty. Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987) (citations omitted). The disciplinary actions against Pinckney — which occurred between August 1997 and July 2000 — are not sufficiently close in time to her 1994 SDHR complaint to support an inference of causation. See, e.g., Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999) (holding that "since two years had elapsed" between the protected activity and the adverse action, "no inference of causation is justified"). Further, aside from conclusory allegations, Pinckney has not come forward with evidence that she was treated differently from other employees who engaged in similar conduct, nor has she come forward with evidence of retaliatory animus. See Collins, 305 F.3d at 118 (affirming grant of summary judgment on plaintiff's Title VII retaliation case where plaintiff "offered insufficient evidence of causation linking his termination to motives of retaliation[.]").
Because Pinckney has not shown causation, the City is entitled to summary judgment in Action I.
ACTION II
A. Background
As noted, in Action II, Pinckney's remaining claim is that she was retaliated against for filing charges with the EEOC and the NYPD's OEEO. Unless otherwise indicated, the following facts underlying this claim are uncontested. On December 6, 2000, Pinckney, who had been diagnosed with post-traumatic stress disorder in 1998, suffered an anxiety attack while at work. After consulting with psychological services, Pinckney's commanding officer, Lieutenant Mark Gallagher ("Gallagher"), directed two police officers to transport her to psychological services in a van normally used for transporting prisoners. There is a factual dispute as to whether it is uncommon for a police officer to be transported in the back of a prisoner transport van or whether any other vehicle was available to transport Pinckney at the time of her anxiety attack.
On January 24, 2001, Pinckney filed a complaint with the OEEO, alleging, inter alia, that she was transported in the van in retaliation for filing prior complaints. At an interview with the OEEO, she was given a "Reasonable Accommodations Form," which she submitted on March 14, 2001. At some point during the next week, Pinckney was informed that she would be reassigned to the "Satcom Viper 7 Unit." It is unclear from the record whether this proposal was an attempt to respond to her accommodation request. The reassignment, however, never occurred; the record does not reflect why, when, or by whom the decision was made to cancel the reassignment. On March 20, 2001, Pinckney filed a second OEEO complaint, alleging that the proposed reassignment was "retaliation for filing a prior EEO complaint." DiChiara Decl. Ex. K [March 20, 2001 OEEO Complaint]. On May 22, 2001, Pinckney filed an EEOC charge, in which she again alleged that the proposed reassignment was retaliatory.
It is unclear whether the "prior EEO complaint" referred to in Pinckney's March 20, 2001 OEEO compliant is her July 7, 2000 EEOC charge, her January 24, 2001 OEEO complaint, or some other complaint that is not in the record. It is unnecessary to resolve this issue, however, because it does not impact the Court's disposition of her claim on the merits.
B. Discussion
As in Action I, the City argues that it is entitled to summary judgment in Action II because there is no prima facie case of retaliation. The standards for summary judgment and consideration of Title VII retaliation claims are, of course, the same in Action II as in Action I. While Action I centered on the issue of causation, here the issue is whether Pinckney suffered an adverse employment action.
It is unclear from Pinckney's complaint whether her retaliation claim in Action II arises under Title VII, the ADA or both. In her reply memorandum, Pinckney argues that this claim is "both a Title VII claim and an ADA claim." Id. at 12. However, regarding the ADA claim, it is barred by her agreement to discontinue her "claims under the Americans with Disabilities Act." Stip'n and Order of Partial Discontinuance [in Action II] ¶ 2.
An adverse employment action is one that results in a "materially adverse change in the terms and conditions of employment." Weeks v. New York State, 273 F.3d 76, 85 (2d Cir. 2001). A materially adverse change is one "that has an attendant negative result, a deprivation of a position or an opportunity." Campbell v. Grayline Air Shuttle, Inc., 930 F.Supp. 794, 802 (E.D.N.Y. 1996) (quotation omitted). The employment action need not necessarily involve job termination or a reduction in wages; "less flagrant reprisals by employers may indeed be adverse," Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997); however, "not every unpleasant matter short of [discharge or demotion] creates a cause of action[.]" Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (alteration in original) (quotation and citations omitted); see also Weeks, 273 F.3d at 85 ("[t]o be `materially adverse,' a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities") (citation omitted). Thus, such a change is generally "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." Weeks, 273 F.3d at 85 (citation omitted). "The key . . . is that the plaintiff must show that the [action] created a materially significant disadvantage." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2001).
With respect to being transported in the police van, Pinckney alleges that she was "demeaned" and "treated with utter contempt[.]" Complaint [Action II] ¶ 8. She has not, however, shown how this alleged mistreatment, which resulted in no change in the terms and conditions of her employment, constituted an adverse employment action. See, e.g., Torres v. Pisano, 116 F.3d 625, 639-640 (2d Cir. 1997) (defendants' actions, which left plaintiff feeling "frightened" and "intimidated" did not constitute a materially adverse change in the terms and conditions of employment); Ruggieri v. Harrington, 146 F. Supp. 2d 202, 216 (E.D.N.Y. 2001) (the fact that plaintiff was embarrassed by employer's actions was inadequate to demonstrate adverse employment action). Accordingly, she cannot establish a prima facie case of retaliation based on her transportation in the police van.
As for her proposed reassignment, "a transfer is an adverse employment action if it results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career." Galaybaya, 202 F.3d at 641 (emphasis added). Because the proposed reassignment never occurred, Pinckney cannot show that it resulted in a change in her responsibilities or constituted a setback to her career. Accordingly, she cannot establish a prima facie case of retaliation based on her proposed reassignment.
Because Pinckney has not shown that she suffered an adverse employment action, the City is entitled to summary judgment in Action II.