Opinion
99 Civ. 4955 (BSJ)
November 21, 2003
Order and Opinion
Plaintiff, Evan Davis, alleges that defendants City of New York and Police Commissioner Howard Safir discriminated against him on the basis of race in violation of 42 U.S.C. § 1983, the Thirteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2OOOe et seq. ("Title VII"), and New York State Executive Law § 296. In an order dated January 5, 2000, this Court granted defendants' motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) with respect to the 42 U.S.C. § 1983 claim. Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56.
In his opposition to defendants' motion, plaintiff states that he "has decided not to pursue any arguments under the Thirteenth Amendment." (PL's Mem. in Opp'n at 23). Accordingly, the claim under the Thirteenth Amendment is dismissed and the only remaining claims to be decided in this motion for summary judgment are plaintiff's Title VII and state law claims. For the reasons set forth below, defendants' motion for summary judgment is granted.
In addition, pursuant to Local Civil Rule 56.1(c), Fed.R.Civ.P. 37(b)(2)(B) and 37(c)(1), and 28 U.S.C. § 1927, plaintiff has moved to strike the Declaration of George W. Anderson ("Anderson Declaration") as untimely and the corresponding paragraphs in defendants' 56.1 Statement of Undisputed Facts. Plaintiff has also moved for sanctions against defendants for submitting the Anderson Declaration after the close of discovery. This Court will not consider the Anderson Declaration as it was disclosed for the first time in the summary judgment motion. The Court finds that striking the Anderson Declaration is a sufficient sanction.
Having reviewed the Anderson Declaration which contains a discussion of statistics pertaining to the drug testing of "end of probation" police officers, the Court finds that the facts it provides are irrelevant in any event.
FACTS
Plaintiff is an African American male who, in 1998, applied for the position of police officer with the New York City Police Department ("NYPD"). (Compl. at ¶¶ 9-10). As part of the application process, plaintiff was required to take both a written examination, which he passed, and a physical examination, which required plaintiff to supply hair samples for drug testing. (Compl. at ¶¶ 11-12). During his physical examination, plaintiff was informed that the hair on the top of his head "was not of a sufficient length to obtain the required samples" and the examiner instead took the samples from plaintiff's groin area. (Compl. at ¶¶ 13-14). Plaintiff contends that the hair on the top of his head was, in fact, adequate to provide the samples and that the samples could have been obtained from other areas of his body including his chest, arms and legs. (Decl. of Kevin R. Dantzler ("Dantzler Decl."), Ex. D).While plaintiff was able to provide the two required samples, he was informed by the examiner that he did not have enough hair in his groin area to obtain a third optional sample. (Compl. at ¶ I4). This third sample is considered a "control sample" that could be used by plaintiff to contest a finding of drugs in his system. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") at 3). After the drug tests were completed, the NYPD notified plaintiff that he had been found "Not Qualified" because of the presence of drugs in his system and that no appeal was available because plaintiff had refused to give the optional third sample. (Compl. at ¶ 15).'" Plaintiff's claim is based on the theory that the NYPD's drug testing policy leads to racial discrimination under Title VII. Plaintiff is alleging that as a short-haired man, he has fallen victim to an unfair employment practice. While hair length is not a protected class within the meaning of Title VII, plaintiff claims that the drug testing practice discriminates against African American men, who do qualify as a protected class. [T]he drug testing . . . procedures discriminate against black males because the hair of black males is typically not similar to whites in that it is tightly curled or kinky and because of its nature is typically short." (Compl. at ¶ 17).
DISCUSSION
I. Summary Judgment Standard
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To determine the appropriateness of summary judgment, a court must view the record in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diobald, Inc., 369 U.S. 654, 655 (1962). The moving party must allege "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and make "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). "Conclusory allegations, conjecture and speculation" do not create a genuine issue of fact. Kerzer v. Kingly Manufacturing, 156 F.3d 396, 400 (2d Cir. 1998).
II. Title VII Claim
Title VII claims are commonly analyzed under both the disparate treatment and the disparate impact theories. The Court will address each theory separately. A. Disparate Treatment claim
Plaintiff does not clearly allege a disparate treatment claim. However, in the event that plaintiff was attempting to allege such a claim, this Court will proceed with the disparate treatment analysis.
Disparate treatment claims are evaluated through the three-step burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). In the context of a summary judgment motion, plaintiff must first establish a prima facie case of racial discrimination by showing (1) that he belongs to a protected class; (2) that he was qualified for the position which he sought; (3) that he was denied the employment position; and (4) that, after his rejection, others with similar qualifications were appointed to the position.Id. at 802.
The burden then shifts to defendant to set forth a legitimate, nondiscriminatory business reason for failing to appoint plaintiff to his desired position. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L.Ed.2d 207, 101 S.Ct. 1089 (1981). Defendant must only set forth admissible evidence demonstrating "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. V. Hicks, 509 U.S. 502, 507, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1993) (emphasis in original).
The final burden of the test requires plaintiff to establish by a preponderance of the evidence that defendant's purported nondiscriminatory reason was only pretext for a true discriminatory purpose. Burdine, 450 U.S. at 253. Indeed, "once a minimal prima facie case is proved and the employer's nondiscriminatory explanation has been given, the McDonnell Douglas presumptions disappear from the case, and the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 147 L.Ed.2d 105, 120 S.Ct. 2097 (2000)). It is important to note that "[a]lthough intermediate evidentiary burdens shift back and forth under this framework, `the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting Burdine 450 U.S. at 253)).
In this case, plaintiff has made out a prima facie case of discrimination as required by McDonnell Douglas, 411 U.S. at 802, by showing that (1) as an African American, he is a member of a protected class; (2) he passed the written examination and was otherwise qualified for the position of police officer; (3) defendants rejected him from the police force; and (4) after his rejection, others with similar qualifications were appointed to the position. However, defendants' decision to deny employment to plaintiff occurred after plaintiff tested positive for drugs. Such a policy meets defendants' burden of providing a non — discriminatory business reason for refusing to hire plaintiff.Cf. Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L.Ed.2d 685, 109 S.Ct. 1384 (1989) (finding a compelling governmental interest in drug testing United States Customs", employees who were directly involved in drug interdiction or required to carry a firearm); Carroll v. City of Westminster, 233 F.3d 208 (4th Cir. 2000) (upholding drug testing of municipal police officers);Feliciano v. City of Cleveland, 988 F.2d 649 (6th Cir. 1993) (same).
Thus, the burden shifts back to plaintiff to present evidence that the drug testing policy was only pretext for discrimination. The relevant factors in this determination "include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case." Reeves, 530 U.S. at 148-49. Plaintiff has failed to present any evidence, nor even contend, that the NYPD's nondiscriminatory explanation was false. Moreover, his contention that African American men more commonly wear shorter hair than white men, thereby making it more difficult for them to provide hair samples for the drug tests, is simply insufficient to meet his burden. Indeed, plaintiff has failed to present any evidence "to support a reasonable inference that prohibited discrimination occurred."James, 233 F.3d at 1:56. Therefore, there is no disparate treatment under the McDonnell Douglas test. B. Disparate Impact Claim
The disparate impact theory under Title VII is also analyzed through a three-part burden shifting test. Title VII is intended to prohibit not only the disparate treatment of protected groups of people, "but also discrimination resulting from practices that are facially neutral but have a `disparate impact,' i.e. significant adverse effects on protected groups." Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1146 (2d Cir. 1991) (citation omitted). In order to establish a prima facie case of disparate impact, a plaintiff must identify "a specific employment practice which, although facially neutral, has had an adverse impact on [the plaintiff] as a member of a protected class." Smith v. Xerox Corp., 196 F.3d 358, 364 (2d Cir. 1999) (footnote and citation omitted). This is commonly established through the use of statistical evidence showing that there is a significant disparity in the treatment of the protected class. See Id., 196 F.3d at 365; NAACP v. Town of East Haven, 70 F.3d 219, 225 (2d Cir. 1995).
The burden then shifts to defendant to show that there was a business necessity behind the challenged practice. See Griggs v. Duke Power Co., 401 U.S. 424, 432, 28 L.Ed.2d 158, 91 S.Ct. 849 (1971); Smith, 196 F.3d at 365. Finally, plaintiff can rebut defendant's showing of a business necessity by showings that the alleged necessity was actually a pretext for discrimination.Id.
"To establish a prima facie case of disparate impact, a plaintiff must show that a facially neutral employment policy or practice has a significant disparate impact." Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998) (citing Griggs, 401 U.S. at 430-32). By failing to set forth any evidence — either statistical or otherwise — that the drug testing practice in question had a disparate impact on African Americans, plaintiff is unable to establish a prima facie case of disparate impact.
Plaintiff has also submitted one newspaper article in support of his contention that there is a racial imbalance in the NYPD. (Declaration of Gregory G. Smith, Ex. 10). The Second Circuit has held however that " [a] negations which contend only that there is a bottom line racial imbalance in the work force are insufficient" and the plaintiff must be capable of showing "a causal connection between any facially neutral policy . . . and the resultant proportion of minority employees." Brown, 163 F.3d at 712. Not only is the article inadmissible, but even if it were it does not support a finding of a causal connection between the drug testing policy and a lack of African American employees in the NYPD workforce. Indeed, plaintiff fails to cite any statistics from which a discriminatory impact could be inferred and even fails to cite to even one other specific instance when a person of any race had trouble with the NYPD's drug test due to a lack of sufficient body hair. Plaintiff's decision to wear short hair does not give rise to an inference of disparate impact due solely to the fact that plaintiff belongs to a protected class.
As plaintiff has failed to present a prima facie case of disparate impact, there is no need to examine the next two prongs of the disparate impact test. Plaintiff's claims fail under both the disparate treatment and disparate impact theories of Title VII. Accordingly, defendants' motion for summary judgment on the Title VII claim is granted.
III. New York State Law Claim
The Second Circuit has repeatedly explained that "claims brought under Section 296 of the New York Executive Law, New York's Human Rights Law, can be analyzed, for purposes of determining sufficiency of the evidence, in a manner virtually identical to those under Title VII."Gallagher v. Delaney, 139 F.3d 338, 345 (2d Cir. 1998); see also Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995). Therefore, for the reasons set forth above, defendants' motion for summary ", judgment on the New York state law claims is granted.
CONCLUSION
Defendants' motion for summary judgment is granted with respect to both the Title VII and state law claims. The Clerk of the Court is directed to close this case.SO ORDERED.