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holding plaintiff's belief that negative performance evaluation was unfounded to be insufficient to meet his burden without some other indicia of discrimination at play
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99 Civ. 11704 (RWS).
August 4, 2005
SUSAN PENNY BERNSTEIN, ESQ., Of Counsel, CRONIN BYCZEK, Lake Success, NY, Attorneys for Plaintiff.
HONORABLE MICHAEL A. CARDOZO, By: DANIELLE DANDRIGE, ESQ., Of Counsel, Corporation Counsel of the City of New York, New York, NY, Attorneys for Defendants.
OPINION
The defendants City of New York (the "City"), the New York City Police Department (the "NYPD"), Howard Safir, Commissioner (the "Commissioner"), Captain Joseph March ("Capt. March"), Lieutenant Joseph Zerbo ("Lt. Zerbo"), and Sergeant Michele Turner ("Sgt. Turner") (collectively the "Defendants") have moved under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiff George Hawkins ("Officer Hawkins" or the "Plaintiff") alleging discrimination in employment on the basis of color and race. For the reasons set forth, the motion is granted, and the complaint is dismissed.
Prior Proceedings
Officer Hawkins filed a complaint against the Defendants on December 1, 1999 alleging: (1) that the Defendants discriminated against him in employment on the basis of his color and race (African-American) by giving him a negative evaluation on December 15, 1998 and by reassigning him from the Narcotics Division to Transit District ("TD") 12 two months before Plaintiff was eligible for a promotion to Detective Third Grade; (2) that the Defendants retaliated against him for "opposing discrimination," in violation of 42 U.S.C. §§ 2000e, et seq. ("Title VII"), 42 U.S.C. §§ 1981, 1983, the New York State Human Rights Law ("NYSHRL"), NY Executive Law §§ 290, et seq. and the New York City Human Rights Law ("CHRL"), NYC Administrative Code §§ 8-101, et seq.; (3) that Defendants have conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985; and, (4) that Capt. March, Sgt. Turner and Lt. Zerbo committed libel per se and slander against him.
Discovery has proceeded, and the instant motion was heard and marked fully submitted on February 23, 2005.
The Facts
The facts are taken from the Defendants' Local Civil Rule 56.1 Statement and the Plaintiff's Local Civil Rule 56.1 Counter Statement of Facts, and are uncontroverted except as noted.
Officer Hawkins was appointed a Police Officer with the New York City Transit Police Department ("TPD") on January 21, 1985. At that time, the New York City Transit Police Department was a division of the New York City Transit Authority, a municipal entity, separate and apart from the City of New York and the New York City Police Department. In April 1995, the TPD was transferred to and became a part of the NYPD. As a result of the merger of the TPD and the NYPD, Plaintiff became an employee of the NYPD in April 1995.
After the merger between TPD and the NYPD, Officer Hawkins continued to work as a transit police officer at TD 12. In the fall of 1997, Officer Hawkins requested to be reassigned to the Organized Crime Control Bureau ("OCCB"), which is a division within the NYPD. Specifically, Plaintiff wanted to be assigned to the Auto Crime Unit, which is a unit within OCCB. In order to be assigned to OCCB, precinct officers have to put in a request for a transfer, which must be approved by their commanding officer. According to Officer Hawkins, a high recommendation from the commanding officer is required.
After receiving his commanding officer's recommendation, Officer Hawkins was accepted to OCCB on October 17, 1997. Due to the NYPD's concern with drug crime, most applicants accepted to OCCB were assigned to the Narcotic Divisions. Officer Hawkins was assigned to the South Bronx Initiative ("SBI"), which is part of the Bronx Narcotic Division.
Narcotic divisions within the NYPD are responsible for conducting investigations of known drug prone areas and possible drug prone areas; conducting undercover "buy and bust" operations in which an undercover police officer buys drugs from a suspect and the undercover police officer's team members later arrest or "bust" the drug seller; procuring and executing arrest warrants; cultivating confidential informants to learn of possible drug locations or the identity of drug dealers; processing arrested individuals; and assisting the District Attorney's office in its prosecutions. If an officer successfully performs the investigative functions in a narcotics division for eighteen months, the police officer is automatically promoted to detective third grade.
The SBI covers the 40th, 41st, 42nd, and 43rd precincts. Officer Hawkins was stationed in the 40th precinct. His unit was comprised of three teams or "modules." Each team was supervised by a sergeant and was comprised of three to six team members including at least one undercover police officer. Each sergeant provided training and supervision to his or her team members, planned and executed the daily investigations, prepared the members' evaluations, and reported to a lieutenant. The lieutenant, in turn, provided indirect supervision of the unit members and made reports and recommendations to his or her superior officer, the captain. The captain provided indirect supervision over various narcotic units within a precinct. Officer Hawkins was assigned to a team that was supervised by Sgt. Turner. Sgt. Turner reported to Lt. Zerbo. Lt. Zerbo reported to Capt. March. Sgt. Turner is an African-American female. Lt. Zerbo is a Caucasian male.
In April 1998, Sgt. Turner prepared Officer Hawkins's six-month progress report. He received a "Meets Standards" rating, and it was noted that while Plaintiff had only been with SBI for a short time, Sgt. Turner believed Plaintiff would become a good investigator. Officer Hawkins's supervisors testified that even though they observed that Plaintiff had difficulties grasping the objectives of SBI that they believed it was partially due to his inexperience, and that they felt with time and practice Plaintiff's work performance would improve. The evaluation was thus written in a way so as not to discourage him.
According to Defendants, Officer Hawkins's performance, however, did not improve, a fact Officer Hawkins has disputed. Sgt. Turner repeatedly recommended to her supervisor that Plaintiff be transferred out of SBI because of his poor work performance. Lt. Zerbo also spoke to Capt. March about Plaintiff's poor work performance. Officer Hawkins has disputed these evaluations and states that he never received any criticism.
Sgt. Turner noted that Plaintiff could not correctly complete "Daily Activity Reports ("DAR's") and DD5's, which were reports that detailed the events of an investigation for others to review, and she repeatedly corrected Plaintiff's reports, oftentimes concerning a mistake about which Officer Hawkins previously had been counseled. Officer Hawkins has disputed the notations of Sgt. Turner and states that he was never informed of any criticism.
Sgt. Turner observed Plaintiff parking too near or too far from "sets," which were locations where undercover police officers would make drug buys. According to Lt. Zerbo, parking too close to a "set" would place an undercover in danger or disrupt a potential drug transaction because the close proximity of other individuals would often arouse the drug dealer's suspicions. Whereas, parking too far from a "set" would make it difficult to maintain "point to point" radio communication, which could endanger any of the team members. Officer Hawkins asserts that Lt. Zerbo prepared this evaluation, that Sgt. Turner was required to sign it and that Sgt. Turner did not make the reported observation.
Lt. Zerbo had to counsel Officer Hawkins on proper procedures regarding radio range after Plaintiff's six-month evaluation because of an incident in which Officer Hawkins and his partner traveled outside of the radio frequency which delayed the planned activity for the day for the entire team because the team had to search for Plaintiff and his partner.
During his counseling sessions with Sgt. Turner, Plaintiff revealed that he did not know the boundaries of the 40th precinct, which was an area that he had been working within on a daily basis. Sgt. Turner noted, on the other hand, that the investigators that started with Plaintiff knew the boundaries and street conditions of the 40th precinct.
Lt. Zerbo also determined that Plaintiff could not perform as a "ghost officer" because of his unfamiliarity with his environs. A ghost officer is an officer who trails the undercover officer in order to act as a lookout for the undercover and to notify the remainder of the team if it appears that the undercover may be in danger.
Sgt. Turner testified that Plaintiff asked too many questions. Plaintiff's constant questioning suggested to his supervisors that he was not understanding his function as an investigator in the Narcotics Division or that he was not paying attention to what he was being told and taught.
Sgt. Turner also testified that Plaintiff did not conduct the necessary follow-up to his investigations. Instead of investigating the complaints of drug locations (also known as "kites"), Plaintiff would simply deny that drugs were being sold in the area without actually speaking to anyone in the area or without conducting any observations of the area to determine if there was any suspicious activity. Lt. Zerbo also repeatedly discussed with Plaintiff his failure to properly indicate whether an investigation was substantiated or unsubstantiated and to remind Plaintiff that he had to document every investigative step using official language. Lt. Zerbo testified that unlike his peers, Plaintiff's reports did not improve over time. Officer Hawkins has disputed Lt. Zerbo's conclusions and states that Lt. Zerbo never discussed performance issues with him.
According to the Defendants, unlike the other police officers Plaintiff worked with, Officer Hawkins was also unable to procure a confidential informant. The Chief of SBI considered it important that the investigating officers have at least one to two confidential informants who would provide them with information. In procuring a confidential informant, it was NYPD policy that the police officer have a supervisor with him or her. Officer Hawkins has disputed this conclusion, stating he had two confidential informants.
According to the Defendants, the only confidential informant Officer Hawkins procured did not provide Officer Hawkins with any useful information and Officer Hawkins never solicited information about the confidential informant to determine if the confidential informant would be a reliable and useful resource, a statement disputed by Officer Hawkins. In addition, in procuring the confidential informant, Plaintiff violated NYPD policy because Plaintiff did not have a supervisor with him when he made his initial contact with the confidential informant, a fact disputed by Officer Hawkins.
In 1998, Capt. March received orders from his superior officer to have an interim evaluation completed for Plaintiff. Capt. March subsequently ordered Lt. Zerbo to complete the evaluation. An interim evaluation is a type of evaluation performed between the required biannual evaluations. An interim evaluation is completed in order to evaluate an officer whose suitability for an assignment is at issue and it is used to determine whether the officer should be reassigned from the unit.
According to the Defendants, in or around October 1998, Lt. Zerbo, based on his own observations of Plaintiff and from his on-going discussions with Sgt. Turner about Officer Hawkins's performance, completed an interim evaluation of Officer Hawkins because Sgt. Turner was away on vacation. Officer Hawkins has disputed this contention.
According to the Defendants, when Sgt. Turner returned from vacation, she reviewed the evaluation that Lt. Zerbo completed, agreed with the comments, which included that Officer Hawkins be transferred from the division, and signed the evaluation. Sgt. Turner was not ordered to sign the interim evaluation and in fact testified that she would not have signed the interim evaluation unless she agreed with the contents. Officer Hawkins has disputed these facts and states that Sgt. Turner was ordered to sign the evaluation which was not the usual procedure.
Capt. March reviewed and concurred with the interim evaluation. He signed off on the interim evaluation on November 3, 1998. The interim evaluation reported that Officer Hawkins's performance was poor, concluding that he did not meet the minimum standards of performance for the unit. As such, the interim evaluation recommended that Plaintiff be reassigned from the unit. When Sgt. Turner gave Officer Hawkins the interim evaluation, she informed Plaintiff that if he did not agree with the contents that he could appeal the evaluation.
On December 2, 1998, Capt. March recommended to the Commanding Officer of the Narcotics Division that Plaintiff be reassigned from the Narcotics Division because of his inability to improve his poor work performance. Capt. March's recommendation that Officer Hawkins be reassigned from the Narcotics Division was endorsed by Capt. March's superior officers on December 9, 1998.
On or about December 28, 1998, Officer Hawkins appealed the evaluation to Capt. March. In his appeal, Officer Hawkins alleged that the interim evaluation was not based on facts and disputed the various criticisms levied against him. In his appeal, Plaintiff did not claim to be either the victim of discrimination or retaliation.
In his deposition testimony, Officer Hawkins stated he had a good working relationship with both Sgt. Turner and Lt. Zerbo.
On January 6, 1999, Capt. March denied Officer Hawkins's appeal and concurred with Sgt. Turner's recommendation to transfer him and that Plaintiff be reassigned from SBI.
Capt. March based his decision on interviews with Plaintiff and his supervisors in order to resolve Officer Hawkins's appeal. Capt. March noted that in questioning Plaintiff about the surroundings of the 40th precinct, Plaintiff could not name streets and demonstrated an unfamiliarity of the environs and that Plaintiff's supervisors continued to assert the Plaintiff's work performance was substandard. Additionally, Capt. March questioned Sgt. Turner if she agreed with the contents of Officer Hawkins's interim evaluation, and she indicated that she did agree with it.
Capt. March informed Officer Hawkins that if he did not agree with his decision to transfer him, Plaintiff had twenty-four hours to submit an appeal to the Personnel Officer of OCCB. Officer Hawkins did not submit an appeal within the time frame given him.
In or around late January 1999, Officer Hawkins appealed Capt. March's recommendation to the Personnel Officer of OCCB, Lt. Glen Morisano ("Lt. Morisano"). In connection with Plaintiff's appeal, Lt. Morisano met with Sgt. Turner, Lt. Zerbo, and Officer Hawkins, spoke with Capt. March, and reviewed Plaintiff's work product generated while he was in SBI. Lt. Morisano denied the appeal and upheld the recommendation to have Plaintiff reassigned from SBI, noting that while Plaintiff appeared polite and respectful when he met with Plaintiff in connection with his appeal, Plaintiff was unable to adequately explain his duties and responsibilities as an investigator and did not appear to have enthusiasm for the job.
On February 19, 1999, Officer Hawkins was reassigned back to his previous assignment as a transit police officer at TD 12.
On or about April 13, 1999, Officer Hawkins dual-filed a charge of race and color discrimination with the Equal Employment Opportunity Commission ("EEOC") and the SDHR alleging that the negative interim evaluation and his subsequent involuntary transfer from the Narcotics Division to TD 12 were acts of discrimination.
According to the Defendants, Officer Hawkins testified that he included Lt. Zerbo in his complaint of discrimination because Lt. Zerbo once told Plaintiff that he would be a good undercover officer and that Lt. Zerbo referred to transit police as "tunnel rats." Officer Hawkins has disputed this statement and states that Lt. Zerbo repeatedly referred to Officer Hawkins becoming an undercover cop.
Officer Hawkins testified that prior to receiving his interim evaluation he asked Capt. March about transferring to the Internal Affairs Bureau ("IAB"), that Capt. March refused to recommend Plaintiff and informed Plaintiff that his work performance was not up to par and that after his request to transfer to IAB was denied, Sgt. Turner and Lt. Zerbo started to treat him in a negative manner and that they began to conspire against him.
According to the Defendants, Officer Hawkins testified that he included Sgt. Turner in his complaint of discrimination because he believed that she was ordered to sign off on his evaluation. Officer Hawkins denied such testimony. Officer Hawkins never filed a complaint of discrimination with the NYPD's Office of Equal Employment Opportunity. On or about September 2, 1999, Plaintiff received a Right to Sue notice from the EEOC.
The Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). If, however, "`as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'"Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F.Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
"The salutory purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation ." Nicastro v. Runyon, 60 F. Supp.2d 181, 183 (S.D.N.Y. 1999) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). Greater caution must be exercised, however, in granting summary judgment in employment discrimination cases where the employer's intent is genuinely in issue. Belfi v. Predergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [action complained of] is for a reason expressly forbidden by law."Bickerstaff v. Vassar College, 196 F.3d 435, 448 (internal quotation marks and citation omitted; brackets in the original). But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). The Claims Against The NYPD Are Dismissed
Agencies of the City of New York are not suable entities under the NYC Chapter § 396. See East Coast Novelty Co., Inc. v. City of New York, 781 F. Supp. 999 (S.D.N.Y. 1992); see Connell v. City of New York, 230 F. Supp. 2d 432, 433 n. 3 (S.D.N.Y. 2002). The action against the NYPD is dismissed.
The Title VII Claims Against The Individual Defendants Are Dismissed
Individuals are not proper Title VII defendants. See Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)) (holding that "an employer's agent may not be held individually liable under Title VII"). Accordingly, all Title VII claims against the Commissioner, Capt. March, Lt. Zerbo and Sgt. Turner are dismissed with prejudice.
Hawkins's Title VII Discrimination Claims
Title VII makes it unlawful "for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . [or] sex. . . ." 42 U.S.C. § 2000e-2(a)(1). The "ultimate issue" in any employment discrimination case is "whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an `impermissible reason.'" Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d Cir. 1997).
Two methods exist by which a plaintiff can attempt to prove intentional discrimination. First, the plaintiff may present direct evidence of employment discrimination based on an illegitimate criterion. When an employee produces direct evidence that an illegitimate criterion such as race "played a motivating part in [the] employment decision," Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1795, 104 L.Ed.2d 268 (1989), the burden-shifting standards of Price Waterhouse apply. As such, "the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [illegitimate criterion] into account." Id. at 258, 109 S.Ct. at 1795.
Hawkins has presented no direct evidence of Defendants' intentional discriminatory statements or actions. Therefore, it is necessary to turn to the second means of proving discrimination.
When plaintiffs rely on indirect or circumstantial evidence of discrimination, their claims are analyzed under the three-part test announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish his prima facie case by showing (1) he was a member of a protected group; (2) he was satisfactorily performing the duties required of the position; (3) he was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. E.g., McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). Second, if the plaintiff successfully establishes a prima facie case of discrimination, the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Dister v. Continental Group, Inc., 859 F.2d 1108, 1115 (2d Cir. 1988) (the defendant "is required to articulate — but not prove — a legitimate, non-discriminatory reason for the discharge"). Finally, if the defendant articulates a non-discriminatory reason, the plaintiff must come forward with evidence that the defendant's articulated non-discriminatory reason is a mere pretext for actual discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) ("The plaintiff must `produce not simply some evidence but sufficient evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the [defendant] were false and that more likely than not [discrimination] was the real reason for the'" employment action (quotations and citations omitted; brackets in original)).
The analytical framework for evaluating the Plaintiff's Title VII claims applies equally to his § 1981 claims, see Choudry v. Polytechnic Inst. of N.Y., 735 F.2d 38, 43-44 (2d Cir. 1984), his § 1983 claims, see Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998), and to his state and city human rights law claims. See Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. (2001); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000).
Whether a judgment as a matter of law is appropriate depends upon a number of factors, including 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 that may be considered on a summary judgment motion. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
1. Hawkins's Prima Facie Case
"The burden of establishing a prima facie case is a modest one, but it has substance nevertheless." Viola v. Philips Med. Sys., 42 F.3d 712, 716 (2d Cir. 1994). Conceding the first prong of the disparate treatment test, Defendants do not contest that Hawkins is a member of a protected class and that he was reassigned. With respect to the remainder of the McDonnell Douglas test, however, Defendants argue that Hawkins has failed to satisfy theprima facie standard in that he has failed to establish that his work was satisfactory or that his reassignment occurred under circumstances that give rise to an inference of race discrimination. While the Defendants acknowledge that initially Officer Hawkins was deemed qualified to be reassigned to the Narcotics Division, they contend that he was not qualified to remain in the division which would have resulted in his promotion.
To establish the third prong of a prima facie case of disparate treatment, a plaintiff must show that he suffered an adverse employment action — that is, 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) (internal quotation marks omitted). Further, "not everything that makes an employee unhappy is an actionable adverse action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (Martin, D.J., dissenting) (quoting Smart v. Ball Stte Univ., 89 F.3d 437, 441 (7th Cir. 1996)). A "materially adverse change" might occur in the context of "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." Galabya, 202 F.3d at 640.
To the extent that Officer Hawkins alleges that the December 15, 1998 negative evaluation and his reassignment from the Bronx Narcotics Division back to his previous assignment as a transit police officer in TD 12 were discriminatory, a negative evaluation does not constitute an adverse employment action. Indeed, the act of evaluation alleged by the Plaintiff is the sort that courts in this circuit have ruled not to be the "materially adverse changes" necessary to rise to the level of adverse employment actions. See Weeks v. New York State Division of Parole, 273 F.3d 76, 84-87 (2d Cir. 2001); Clark v. New York City Transit Auth., 1999 U.S. App. LEXIS 32729 at *2 (2d Cir., Dec. 16, 1999). Because the negative evaluation is not an adverse employment action, Officer Hawkins cannot establish aprima facie case with respect to his race discrimination claim on that basis.
Further, to the extent Officer Hawkins is only complaining about his transfer, that is not an adverse employment action.Chu v. City of New York, No. 99 Civ. 11523 (DLC), 2000 U.S. Dist. LEXIS 18513 at *17-19 (S.D.N.Y. Dec. 27, 2000). However, the Defendants concede that if Officer Hawkins is complaining of a denied promotional opportunity, then such an allegation could constitute an adverse employment action. (Memo. in support, FN3, p. 5).
As to the fourth prong of his prima facie case, Plaintiff's evidence of discriminatory animus based upon his color and race consist of bare and conclusory allegations. Assuming, arguendo, that Officer Hawkins's reassignment from the Narcotics Division to TD 12 is an adverse employment action, Officer Hawkins has not established that the actions about which he complains took place under circumstances that give rise to an inference of discrimination based on color and race.
It is unnecessary to reach the question of whether this showing is sufficient to establish a prima facie case because it is held that, even assuming this circumstantial evidence meets the threshold of sufficiency, Officer Hawkins has failed to proffer any evidence from which a reasonable jury could find that the Defendants' asserted reason for the discharge was a pretext for discrimination.
2. Pretext
Defendants state that Officer Hawkins was reassigned because of poor work performance. This reason is legitimate and non-discriminatory. As a result, it is Officer Hawkins's burden to demonstrate that it was a mere pretext for discrimination.Burdine, 450 U.S. at 254, 101 S.Ct. 1089. "[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false and that discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993).
Officer Hawkins's claims rest almost entirely on his belief that his negative performance evaluation dated December 15, 1998 was unfounded. Such a claim is insufficient to meet his burden without some other indicia of discrimination at play. E.g., Viola, 42 F.3d 712 (2d Cir. 1994) (rejecting argument based on adverse performance reviews after 11 years of satisfactory reviews because "[d]ismissals are often preceded by adverse performance reviews."); Ricks v. Conde Nast Publications, 92 F.Supp.2d 338, (S.D.N.Y. 2000) ("The mere fact that an employee disagrees with the employer's assessments of her work, however, cannot standing on its own show that her employer's asserted reason for termination was pretextual."); Payne v. State of New York Power Auth., 997 F.Supp. 492, 498-99 (S.D.N.Y. 1998) ("Plaintiff disputes [defendant's] evaluation of her performance . . . and the subsequent decision to demote her. Missing from this dispute, however, is evidence — either direct or circumstantial — which points to the conclusion that Power Authority's explanations for demoting plaintiff are a pretext for race discrimination.");Orisek v. American Inst. of Aeronautics and Astronautics, 938 F.Supp. 185, 191 (S.D.N.Y. 1996) (plaintiff's "own disagreement with her employer's perception of her job performance does not satisfy her burden of showing that the [employer's] proffered justification was a pretext for discrimination"); Ashton v. Pall Corp., 32 F.Supp.2d 82, 91 (E.D.N.Y. 1999) ("Plaintiff relies upon optimistic expectations that at trial he will prove that defendant created plaintiff's negative performance evaluation to justify his termination, which, he claims, is only a pretext for the real reason he was discharged — his age. Such blanket statements have no probative value."). As a result, Officer Hawkins's case fails in the absence of some direct or indirect evidence suggesting that the poor evaluation and eventual discharge resulted from racial discrimination.
As the sole support for his allegation that the negative evaluation was generated for discriminatory purposes, Officer Hawkins points to the fact that his direct supervisor, Sgt. Turner, did not complete the evaluation. Plaintiff insinuates that Sgt. Turner held a more positive opinion of his work performance and would have given him a better evaluation had she been given the opportunity to do so.
However, during a deposition, Sgt. Turner's denied being forced to sign Plaintiff's interim evaluation. Furthermore, Sgt. Turner testified that she felt that Officer Hawkins should have been transferred from the Narcotics Division before the interim evaluation was even contemplated because she believed he posed a danger to himself and to his team members. She further testified that, due to these observations, she had made repeated requests to Lt. Zerbo and Capt. March to have Officer Hawkins transferred. Officer Hawkins, without record reference, has disputed these facts.
Officer Hawkins has not attributed any direct remarks of discriminatory animus to Sgt. Turner and has stated that he had a good working relationship with her. Officer Hawkins also has not attributed any discriminatory animus to the Commissioner or Capt. March. Officer Hawkins appears to claim that Capt. March and Lt. Zerbo discriminated against him because of the denial of his request to transfer to the IAB.
However, treating an individual differently because he wants to transfer to another division, while arguably disagreeable, does not in itself constitute discrimination.
Even assuming that all his supervisors believed Officer Hawkins was not suitable for the investigative work, he has alleged that "blacks and Hispanics [were] disproportionately transferred out of the Narcotics Division, while on the investigate track towards Detective Third Grade." (Compl. at ¶ 45). But, Officer Hawkins adduces no evidence to support his claim. Each of the Defendants testified that they either did not have cause to transfer an individual out of the Narcotics Division or the individuals transferred out were Caucasian. (See Deft's 56.1 at ¶¶ 16-28.)
The Plaintiff's own subjective belief that actions about which he complains were motivated by discriminatory bias is insufficient to make out a prima facie case of discrimination or to pierce the non-discriminatory, legitimate reasons for reassignment offered by Defendants. See Bickerstaff v. Vassar College, 196 F.3d 435, 456 (2d Cir. 1999) (feelings and perceptions of being discriminated against are not evidence of discrimination) (quotation and citation omitted), cert. denied, 530 U.S. 1242 (2000); Curtis v. Airborne Freight Corp., 87 F. Supp. 2d 234, 249 n. 20 (S.D.N.Y. 2000) (conclusory and speculative allegations of racial animus are insufficient to create an issue of fact). Officer Hawkins's claims of discrimination are dismissed for failure to establish supporting evidence. 3. No Prima Facie Case Of Discriminatory Retaliation
Title VII also provides that "it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful practice by this subchapter. . . ." 42 U.S.C. § 2000e-3(a). As the Second Circuit has noted, "[t]he objective of this section is obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice." Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). To establish a claim for retaliation pursuant to Title VII, a plaintiff need not prove that her discrimination claim was valid in the first instance. See Sumner v. U.S. Postal Service, 899 F.2d 203, 208-09 (2d. Cir. 1990).
Title VII defines protected activities as (1) an employee's opposition to any activity which is prohibited by Title VII, or (2) an employee's participation in any Title VII investigation or proceeding. See Gilani v. National Ass'n of Securities Dealers, Inc., No. 96 CV 8070, 1997 WL 473383, at *7 (S.D.N.Y. Aug. 19, 1997) (citing Williams v. Boorstin, 663 F.2d 109, 115 (D.C. Cir. 1980)).
In order to establish a prima facie case of retaliation, a plaintiff must prove that: (1) he engaged in protected activity; (2) defendants were aware of the protected activity; (3) he was subjected to an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996). Gordon v. New York City Bd. of Ed., 232 F.3d 111, 116 (2d Cir. 2000); Quinn v. Green Tea Credit Corp., 159 F.3d 759, 768-69 (2d Cir. 1998). The Second Circuit has held that a close temporal relationship between the protected activity and an employer's adverse actions can be sufficient to establish causation. Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citing Cifra v. General Elec. Co., 252 F.3d 205, 217 (2d Cir. 1998) ("The causal connection needed for proof of a retaliation claim can be establish indirectly by showing that the protected activity was closely followed in time by the adverse action.") (internal quotation marks omitted)). For mere temporal proximity to establish causality, the intervening period must be "very close." Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).
If the plaintiff establishes a prima facie case of retaliation, the defendant may articulate a legitimate, nonretaliatory reason for its actions. Id. at 768. Finally, if the defendant does so, the plaintiff must prove that the proffered reason is merely a pretext for retaliation. Id. at 769.
Officer Hawkins has alleged that he was subjected to the following acts in retaliation for "opposing discrimination": i) that Lt. Zerbo prepared a negative evaluation of his work performance, which Sgt. Turner was forced to sign, and that ii) Officer Hawkins was transferred from the Narcotics Division in spite of his competent work performance. (Compl. at ¶¶ 41, 85, 96).
As to the first prong, Defendants do not dispute that Plaintiff had engaged in protected activity under Title VII by complaining of discrimination externally to the EEOC in April 1999. As to the second prong, for the purpose of this motion only, Defendants have assumed that they were aware of the Plaintiff's filings, although there is no evidence that any of Officer Hawkins's superiors knew that he complained to the EEOC. However, Officer Hawkins has not established a prima facie case that the alleged retaliatory acts were causally connected to his "protected activity."
Officer Hawkins filed his complaint of discrimination with the EEOC on April 13, 1999. Therefore, he did not engage in any legally cognizable protected activity until after he received the negative interim evaluation and after the order for the recommendation for the transfer was made by Capt. March. (See Defs' 56.1 Statement at ¶¶ 30, 32, 45.) As the adverse employment actions predated Officer Hawkins engaging in any protected activity, they were not taken in response to it. See Fitch v. R.J. Reynolds Tobacco Co., 675 F. Supp. 133 (S.D.N.Y. 1987) (In order to indirectly establish a causal connection, a showing must be made that the protected activity was closely followed by discriminatory treatment); see also Bennett v. Watson, Wyatt Co., 136 F. Supp. 2d 236, 250 (S.D.N.Y. 2001) (as plaintiff's denial of a raise preceded his filing of the EEOC complaint, the action clearly could not be retaliatory), aff'd No. 01-7772, 2002 U.S. App. LEXIS 24042 at *55 (2d Cir. Nov. 21, 2002). A causal connection must be established by admissible facts upon which a jury could find a causal connection between activity and adverse action. See Edwards v. Interboro Institute, 840 F. Supp. 222 (E.D.N.Y. 1994). Failure to do so requires the dismissal of Plaintiff's retaliation claim.
Even assuming, arguendo, that Plaintiff's conclusory allegations are sufficient to establish a prima facie case of discrimination or retaliation, the Defendants have articulated legitimate non-discriminatory reasons for each of the alleged adverse employment actions. See Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997), cert. denied, 522 U.S. 1075 (1998).
Each of Officer Hawkins's supervisors recall deficiencies in Plaintiff's performance which did not improve over time, whether or not these deficiencies were communicated to him.
Even assuming a prima facie case, Defendants have met theirMcDonnell Douglas burden of providing a legitimate, non-discriminatory reason for choosing to remove Plaintiff from the Narcotics Division. See Wolf v. Board of Educ., 162 F. Supp.2d 192, 199 (S.D.N.Y. 2001) (when a decision to hire, promote, or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn).
Once the Defendants have met their burden of offering a legitimate non-discriminatory reason for the adverse personnel action, "the presumption that triggered the defendant's burden of production . . . `drop[s] out of the picture.'" Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). The "factual inquiry proceeds to a new level of specificity," St. Mary's, 509 U.S. at 516; Fisher v. Vassar College, 114 F.3d 1332, 1336 (2d Cir. 1997) (in banc), cert. denied, 52 U.S. 1075 (1998). The burden shifts back to Plaintiff to put forth adequate evidence to support a rational finding that the "legitimate non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee's [race, national origin, or prior discrimination complaint] was the reason for [the adverse decision.]" Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996), cert. denied, 520 U.S. 1228 (1997).
In all cases, the plaintiff always "retains that ultimate burden of persuading the [trier of fact] that [he] has been the victim of intentional discrimination." Fisher, 114 F.3d at 1336 (quoting St. Mary's, 509 U.S. at 508 (quoting Texas Dep't of Community affairs v. Burdine, 450 U.S. 248, 256 (1981) (alteration in St. Mary's))). Merely showing that the employer's proffered reason is pretextual — that the stated reason is not the real reason — will not necessarily carry the plaintiff's ultimate burden of persuasion. Rather, the plaintiff mut also demonstrate that the true reason was an illegally discriminatory one. Fisher, 114 F.3d at 1338; see St. Mary's, 509 U.S. at 515.
Given the record in this case, and even viewing the facts in a light most favorable to the Plaintiff, there is no basis to find that the actions and decisions about which Plaintiff complains were taken or made because of his race or color or in retaliation for his discrimination complaint. Hawkins, therefore, has failed to establish a prima facie case. See Manessis v. N.Y. City Dep't of Trans., No. 02 Civ. 359, 2003 U.S. Dist. LEXIS 1921, at *38 (S.D.N.Y. Feb. 10, 2003) (granting summary judgment in employer's favor because plaintiff failed to adduce direct evidence of retaliation or a temporal proximity establishing causality). Furthermore, had Plaintiff set forth adequately aprima facie case of retaliation, Plaintiff still failed to raise a triable issue of fact with regard to whether the Defendants' legitimate nondiscriminatory reasons were pretextual. 4. No Hostile Work Environment
To establish the existence of a hostile work environment, a plaintiff must show that 1) his workplace is permeated with "discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," and 2) that a specific basis exists for imputing the objectionable conduct to the employer. Alfano v. Costello, 294 F.3d 365, 373-75 (2d Cir. 2002) (citing Perry v. Ethan Allan, Inc., 115 F.2d 143, 149 (2d Cir. 1997) (internal quotations and citations omitted)). See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal references omitted); see Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 436 (2d. Cir. 1999). Further, it is axiomatic that in order to establish a race-based hostile work environment claim under Title VII, a plaintiff must demonstrate that the conduct occurred because of his color or race. Alfano, at 377-78.
As a general rule, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." Id. at 374 (citing Perry, 115 F.3d at 149 (citation and internal quotation marks omitted)). Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness. Id. (citing Brennan v. Metropolitan Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)). Conduct that is "merely offensive, unprofessional or childish is not discriminatory conduct proscribed by Title VII." Cosgrove v. Federal Home Loan Bank of N.Y., Nos. 90 Civ. 6455, 92 Civ. 4225 (RPP), 1999 WL 163218, at *20 (S.D.N.Y. Mar. 23, 1999).
In examining whether a hostile work environment was created, courts look to the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., 510 U.S. 17, 23 (1993); Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000).
Officer Hawkins has not established that his workplace was "hostile" or "abusive." The determination as to whether a plaintiff's working environment is "hostile" or "abusive" must be made based upon the totality of circumstances. See Mormol Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004). Although there is "neither a threshold magic number of incidents below which a plaintiff fails as a matter of law to state a claim,"Richardson v. New York Stte Dep't of Correctional Serv., 180 F.3d 426, 439 (2d Cir. 1999) (internal quotations omitted), a single isolated instance of harassment is insufficient to establish a hostile work environment claim unless it was "extraordinarily severe."
Officer Hawkins has stated that he had a good working relationship with both Sgt. Turner and Lt. Zerbo, (see Hawkins Depos. at 33, 34), and that he had no real contact with Capt. March except for the one time Officer Hawkins approached Capt. March regarding the transfer to the IAB. (See Hawkins Depos. at 52, 69-74.) The only negative that Officer Hawkins attributes to that encounter was that Capt. March was not happy with his work performance. (See id.)
Officer Hawkins has not attributed any discriminatory comments to Sgt. Turner. The only evidence Officer Hawkins has proffered as discriminatory animus is that Sgt. Turner followed her superior's order in signing his negative evaluation. Even presuming that Sgt. Turner was ordered to sign the evaluation, Plaintiff presents no authority, legal or otherwise, that stands for the proposition that when an employee in a paramilitary organization obeys her superior's order, that such an action is akin to discrimination.
The only colorable allegation of racial animosity alleged by the Plaintiff are the comments he alleged that Lt. Zerbo made to him or in his presence. Officer Hawkins has alleged: (1) that on several occasions Lt. Zerbo told him that he would make a good undercover (instead of a good investigator, as was Hawkins's primary goal); and (2) that on one occasion, while Officer Hawkins was in the office, Lt. Zerbo referred to transit police officers as "tunnel rats." (See Hawkins Dep. at 66-68; 78-80.) Officer Hawkins admits that when Lt. Zerbo made the alleged "tunnel rat" comment, it was not made directly to him, but was made when there was another Caucasian, who also was a former transit police officer, in the vicinity, and was made about transit police officers in general. Although unkind, the comment is devoid of racial animosity directed at Hawkins.
Even if the incidents claimed by the Plaintiff to constitute discriminatory animus are assumed, these instances are so isolated that they do not meet the threshold for a hostile work environment claim. "For racist comments, slurs, or jokes to constitute a hostile work environment, there must be more than a few isolated incidents." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation marks omitted). Moreover, "not all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment within the meaning of Title VII." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986) (internal quotations omitted). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 2283 (1998).
To the extent that Officer Hawkins is complaining about Lt. Zerbo's alleged "tunnel rat" or "undercover" comments, they constitute stray remarks and are not sufficient to demonstrate discriminatory animus or create a sufficiently actionable hostile work environment. See Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998). The Plaintiff has not demonstrated that Lt. Zerbo's alleged comments were attributable to any employment action and has not asserted any allegations sufficiently severe or pervasive by which he can establish a claim of hostile work environment.
The § 1985 Claim Is Dismissed
Officer Hawkins also has alleged a conspiracy pursuant to 42 U.S.C. § 1985 between Defendants to deprive Plaintiff of his civil rights. "A conspiracy is an agreement between two or more individuals, where one individual acts in furtherance of the objective of the conspiracy, and each member has knowledge of the nature and scope of the agreement." Dove v. Fordham University, 56 F. Supp. 2d 330, 337 (citing to Burrell v. City University of New York, 995 F. Supp. 398, 414 (S.D.N.Y. 1998)). To prevail on a § 1985 claim, a plaintiff must show that the defendants conspired and that the conspiracy was motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Mian v. Donaldson, 7 F.3d 1085, 1087. "A constitutional conspiracy claim must [also] be pled with at least some degree of particularity." Dove, at 338 (citing to Laverpool v. New York City Transit Authority, 760 F. Supp. 1046, 1056 (E.D.N.Y. 1991)); Muniz v. New York, 1997 U.S. Dist. LEXIS 14008 (S.D.N.Y. 1997).
Here, Officer Hawkins has offered no more than a general statement that Defendants conspired to injure him and deprive him of the opportunity to become a Detective Third Grade. See Muniz, 1997 U.S. Dist. LEXIS 14008. Such a conclusory allegation is insufficient to establish a § 1985 claim. Furthermore, as a matter of law, a conspiracy among the Defendants named in this action cannot be established because they are part of a single entity. "Officials of a single government entity, acting in their official capacities cannot conspire among themselves or with the entity within the meaning of § 1985." McEvoy v. Spencer, 49 F. Supp. 2d 224, 226 (S.D.N.Y. 1999) citing Sharpe v. Long, 842 F. Supp. 197, 201 (D.S.C. 1992); see also Gatling v. Fashion Assoc., No. 98 Civ. 2252 (LMM), 1999 U.S. Dist. LEXIS 12967 at *6-7 (S.D.N.Y. Aug. 18, 1999).
The Monell Claim Is Dismissed
In order to hold the City liable under §§ 1981 or 1983, Officer Hawkins must show that his civil rights were violated as a result of a municipal policy or custom. See City of Canton Ohio v. Harris, 489 U.S. 378, 385 (1989); Oblio v. City Univ. of N.Y.,
2003 U.S. Dist. LEXIS 2886, *43 (E.D.N.Y. February 28, 2003); Davis v. City of New York, 228 F. Supp. 2d 327, 336-37 (S.D.N.Y. 2002).
Even assuming, arguendo, that Officer Hawkins established the existence of constitutional violations in this case, he has not adduced any evidence that the NYPD or the City has a custom or policy of discriminating against African-Americans who worked as investigators for Narcotics Division. See Davis, 228 F. Supp. 2d at 336-37. In the absence of any such record evidence, Plaintiff's claims of municipal liability under §§ 1981 and 1983 fail as a matter of law. See Santiago v. Committee of City Marshals, No. 84 Civ. 3984 (LLS), 1987 U.S. Dist. LEXIS 1217 at *11-13 (S.D.N.Y. Feb. 20, 1987).
Officer Hawkins's due process rights have not been violated namely because he cannot establish that he had been intentionally deprived of property or a liberty interest. Plaintiff complains that he was transferred from an elite unit but fails to provide any authority that assignment to a unit constitutes a property or liberty interest.
Additionally, due process is not violated even if an employee has been intentionally deprived of a property or liberty interest as long as the state provides an adequate post-deprivation remedy. See Hellenic Am. Neighborhood Action Committee v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996) (citing Hudson v. Palmer, 468 U.S. 517, 532 (1984)). The Second Circuit has held that an Article 78 proceeding is an adequate post-deprivation remedy under the Due Process clause and that there is no constitutional violation and no readily available vehicle by which Plaintiff may bring a § 1983 claim before the federal courts. Id. at 881; see also Grillo v. New York City Transit Auth., 291 F.3d 231 (2d Cir. 2001). To the extent that Plaintiff is alleging that his due process rights were violated because the City or the NYPD did not provide him with a hearing, he cannot demonstrate that he did not have a post-deprivation remedy through an Article 78 hearing.
The Tort Claims Are Dismissed
New York law requires an individual to serve a notice of claim before commencing any action for damages for personal injury or property damage against the City of New York or its employees.See N.Y. Gen. Munic. Law §§ 50-e, 50-i. The purpose of the notice-of-claim requirement is to afford the municipality an adequate opportunity to investigate the claim in a timely and efficient manner and, where appropriate, to settle claims without the expense and risks of litigation. See Fincher v. County of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997); see also Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 62 (1984) (per curiam).
A notice of claim generally must be served within ninety days of the date when the claim arises. See N.Y. Gen. Munic. Law § 50-e(1)(a). Furthermore, the notice "shall set forth," among other things, "the time when, the place where and the manner in which the claim arose." Id. § 50-e(2). See Hardy v. N.Y. City Health and Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999);see also Fincher v. County of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997) (noting that New York's 90-day notice-of-claim requirement applies to state tort claims brought as pendent claims in a federal action).
Here, Officer Hawkins has claimed that the individually named Defendants placed false statements in his interim evaluation which had the effect of "blacklisting" Plaintiff within the NYPD such that he could not advance in his career. Accordingly, Hawkins alleges that the individually named Defendants committed the torts of slander and libel per se against him on December 15, 1998. The Plaintiff, however, fails to allege or establish that he has filed a notice-of-claim in compliance with GML §§ 50-e, 50-i. Therefore, any state tort claim against the individual defendants must be dismissed.
In addition, to establish a cause of action for defamation, libel or slander, a plaintiff must prove the following elements: (1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) fault amounting to at least negligence in the unprivileged publication; and (4) the statement must be defamatory per se or it must have caused special harm.See Restatement 2d (Torts) § 558.
Failure to state the particular person or persons to whom the allegedly slanderous or libelous comments were made as well as the time and manner in which the publications were made warrants dismissal. See Loria v. Plesser, 699 N.Y.S.2d 438, 267 A.D.2d 213 (2d Dep't 1999); see also Gill v. Pathmark Stores, 655 N.Y.S.2d 623, 237 A.D.2d 563 (2d Dep't 1997); Ott v. Automatic Connector, Inc., 598 N.Y.S.2d 10, 193 A.D.2d 657 (2d Dep't 1993). Here, the Plaintiff alleges that "[d]uring December, 1998 [d]efendants March, Turner, and Zerbo intentionally and willfully made false representations of fact about the plaintiff and his employment, his character and professional standing to other supervisors of [p]laintiff with [the] NYPD." The failure to identify both the individuals to whom the statement allegedly was made and the content of that statement is fatally defective to his attempt to state a libel or slander cause of action. See Horowitz v. Aetna Life Ins., et. al., 539 N.Y.S.2d 50, 148 A.D.2d 584 (2d Dep't 1989). If the Plaintiff is only complaining about remarks in his interim evaluation, he has failed to state a cause of action for libel or slander because criticism of an employee's work performance is subjective opinion and constitutes protected speech. See Angel v. Levittown Union Free Sch. Dist. No. 5, 567 N.Y.S.2d 490, 171 A.D.2d 770 (2d Dep't 1991). As such, the complaint fails to state a cause of action sounding in libel or slander against the individual Defendants.
In addition, the individual Defendants are protected by a qualified privilege. "A qualified privilege arises when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral, or social duty to speak, and the communication is made to a person having a corresponding interest or duty." Santavicca v. City of Yonkers, 518 N.Y.S.2d 29, 132 A.D.2d 656, 657 (2d Dep't 1987). Communications are regarded as privileged where the occasion and the relation of the parties afford reasonable grounds for supposing an innocent motive for giving the information. Id. at 661-62.
Moreover, to the extent that statements are made about an employee in an employment context, they qualify as privileged since such statements were made by one person to another upon a subject in which they have a common interest. See Williams v. Varig Brazilian Airlines, 564 N.Y.S.2d 328, 169 A.D.2d 434, 438 (1st Dep't. 1991); Hollander v. Cayton, 536 N.Y.S.2d 790, 145 A.D.2d 605 (2d Dep't 1988).
The shield of privilege is pierced only by a plaintiff's showing of actual malice. See Hollander, 145 A.D.2d at 606. "To overcome a qualified privilege, it is plaintiff's burden to show actual malice." Buckley v. Litman, 57 N.Y.2d 516, 521 (1982). Plaintiff must plead facts showing that the statement was made with a high degree of awareness of its probable falsity, or that defendant entertained serious doubts as to the truth of the publication. Liberman v. Gelstein, 80 N.Y.2d 429, 438 (1992). The conclusory pleading of the word "malice" is insufficient.Doherty v. N.Y. Tel. Co., 609 N.Y.S.2d 306, 202 A.D.2d 627, 628 (2d Dep't 1994).
In addition to failing even in conclusory manner to plead "malice," Plaintiff has made no attempt to plead allegations which might show that Defendants Sgt. Turner, Capt. March, or Lt. Zerbo either made the alleged statement with a high degree of awareness of its probable falsity or with serious doubts as to the truth of the matter contained in the alleged statements. The Plaintiff has failed to overcome his burden of showing a genuine issue of actual malice.
Finally, special damages are a necessary element of defamation, malicious prosecution, abuse of process, and prima facie tort. See Mullenmeister v. Snap-On-Tools Corp., 587 F. Supp. 868, 873-874 (S.D.N.Y. 1984) (the published association of plaintiff with a swastika insufficient to establish a claim of libel per se because no reasonable jury would find special damages); see Engle v. CBS, Inc., 93 N.Y.2d 195 (1991). The failure to plead and inability to prove special damages requires dismissal of these claims. Id.; see also Fed.R.Civ.P. 9(g).
Plaintiff was not demoted or terminated and therefore has not suffered special damages which are "actual temporal damages causally related to the alleged acts." John and Vincent Arduini Inc., 129 F. Supp. 2d at 174. Plaintiff was subjected to a lateral transfer in which he maintained the title "police officer" and as such cannot show he has suffered any special damages.
Officer Hawkins has failed to establish his claims against the individual Defendants for libel and slander.
Conclusion
For the reasons set forth, Defendants' motion for summary judgment is granted and the complaint is dismissed.
It is so ordered.