Opinion
5:00-CV-1940
October 30, 2002
A.J. BOSMAN, ESQ., Utica, NY, Attorney for Plaintiff.
BARTLE J. GORMAN, ESQ., GORMAN, WASZKIEWICZ, GORMAN AND SCHMITT, Utica, NY, Attorneys for Defendants.
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
Plaintiff Michael Antonio Patterson ("Patterson" or "plaintiff") filed the complaint in this matter on December 18, 2000, asserting eleven causes of action pursuant to federal and state law, the gravamen of which is race discrimination in employment. The John Doe defendants were never named and Richard DePhillips was never served. Those defendants who were served answered denying the material allegations of the complaint. The defendants now move for summary judgment dismissing all of plaintiff's claims. Plaintiff opposes. Oral argument was heard on October 18, 2002, in Utica, New York. Decision was reserved.
II. FACTS
Following are the facts, and inferences therefrom, taken in the light most favorable to plaintiff, the nonmovant, as must be done on a motion for summary judgment. The Oneida County Sheriff's Department ("Sheriff's Department") hired Patterson, an African American, as a correctional officer on February 23, 1998, to work at the Oneida County Jail ("the jail"). He and all new recruits were probationary employees for a period of one year.
Patterson first heard racial slurs in July 1998 while working the "B" block of the jail. He could not specifically identify the speaker or speakers because the door was locked. He did not report this or complain to anyone. He heard racial comments, epithets, and slurs spoken over the jail master control intercom approximately twelve times from October 1998 through January 1999. He could not specifically identify the speakers because the master control room that contained the intercom microphone was locked. However, only Sheriff's Department personnel had access to the master control room. Again, he did not report this or complain to anyone.
There was no intercom in the jail prior to October 1998.
In January 1999 Patterson, while on duty at 1:00 or 2:00 a.m., was jumped by defendants William Balsamico ("Balsamico") and Richard DePhillips ("DePhillips") and an unknown third man. The three men sprayed mace in his face and covered him with shaving cream. Balsamico then told plaintiff that "Now you're a white boy with an Afro" and made other racial slurs. Plaintiff washed his eyes and returned to duty. Again, plaintiff did not complain or report the incident.
On January 22, 1999, plaintiff received a performance evaluation indicating that he fully met each requirement evaluated. His previous evaluations similarly indicated that he met job requirements. At some point an inmate alleged that Patterson assaulted him. Patterson responded by memorandum on February 3, 1999, that he did not remember any such incident. Defendant Chief Deputy William Chapple ("Chapple") became aware that local police responded to a domestic dispute between plaintiff and a female. Neither plaintiff nor the female were taken into custody by the local police. Chapple also became aware that plaintiff allegedly compromised the identity of an undercover officer working on the drug task force, was fired from his previous employment for refusing to take a drug test, and that he had been involved in dealing drugs. Accordingly, Chapple requested plaintiff's immediate termination for failure to successfully complete his probationary period due to misconduct. Plaintiff received notice of his termination on February 9, 1999. He had an exit interview with Chapple on March 9, 1999, and a union representative was present. Chapple told Patterson that details regarding the misconduct were confidential and may present a security risk. During the exit interview plaintiff did not mention any racial slurs or the January mace-shaving cream incident. On March 11, 1999, an Oneida County Legislator, Joseph Vescio, wrote a letter at Patterson's behest to defendant Sheriff Daniel Middaugh ("Middaugh") inquiring as to the reason for plaintiff's termination. Middaugh responded by letter that releasing details relating to plaintiff's misconduct would jeopardize the integrity of a sensitive investigation and possibly the safety of police officers. Middaugh suggested that it would be to plaintiff's benefit to have his personnel record reflect that he failed to successfully complete his probationary period, rather than that he was terminated for misconduct.
Patterson filed a Notice of Claim with Oneida County on April 16, 1999, and a Verified Complaint with the Equal Employment Opportunity Commission ("EEOC") on December 2, 1999. The Notice of Claim and the Verified Complaint set forth Patterson's claims based upon Middaugh's letter to Vescio and the racial epithets over the intercom from October 1998 through mid-January 1999. Neither mentions the January mace-shaving cream incident. A right-to-sue letter was sent on September 12, 2000, and received on September 29, 2000. This action followed.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Richardson, 180 F.3d at 436; Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587. At that point the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587.
B. Analysis
1. Title VII Claims
Charges filed pursuant to Title VII must be brought within 180 days after the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). Plaintiff filed his EEOC charge on December 2, 1999. Thus, any unlawful employment practice must have occurred on or after June 6, 1999, in order for the charge to be timely. Here the latest alleged unlawful employment practice was plaintiff's termination on February 9, 1999. Accordingly, plaintiff's Title VII claims must be dismissed. Plaintiff's argument that his termination was within 300 days of the filing of the EEOC charge is unavailing, since the 300-day time limit applies only where, unlike here, a charge is filed with a State or local agency. See id.
2. Equal Protection under Sections 1981 and 1983
A claim under section 1981 requires proof that (1) the plaintiff is a member of a racial minority; (2) defendant intended to discriminate on the basis of race, and (3) the discrimination pertained to one of the statutorily enumerated activities. Mian v. Donaldson, Lufkin Jenrette Sec., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). Equal protection under the laws is one of the enumerated activities. 42 U.S.C. § 1981. An equal protection claim pursuant to section 1983 requires a showing of intentional discrimination on the basis of race, national origin, or gender. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). "A touchstone of equal protection is that the government may not subject persons to unequal treatment based on race." Id. at 49. Conclusory allegations are insufficient to establish the essential elements of an equal protection claim. Mian, 7 F.3d at 1088.
It is undisputed that Patterson is an African-American, a racial minority. Plaintiff has failed, however, to set forth facts establishing intentional discrimination or unequal treatment based upon race. Patterson failed to report the specific incidents of racial slurs and the mace-shaving cream assault by fellow officers to someone in a supervisory position, such as Chapple, Lieutenant Rende, Paravati, and Middaugh. Because these incidents went unreported they do not demonstrate any intent by the defendants to discriminate against Patterson.
Plaintiff makes conclusory allegations that there is unequal treatment in termination during probation, in the opportunity to take firearms and OC Spray training, and in making application to become a member of the Sheriff's Emergency Response Team ("SERT"). Plaintiff states that all Blacks are terminated during their probationary period. Plaintiff further discredits defendants' submissions tending to show that both whites and Blacks are terminated during probation. However, plaintiff fails to set forth any facts establishing that Blacks are, in fact, treated differently than whites as far as termination during probation.
Plaintiff further alleges that Blacks are denied an equal opportunity to receive OC Spray and firearms training. However, defendant has shown that Patterson did in fact receiving OC Spray training on October 21, 1998. Additionally, defendants have presented evidence that firearms training was given to only a select few officers and that all of those given firearms training from January 1995 until the present were more senior than plaintiff (in most cases significantly more senior). Chapple testified that one of the minimum requirements to apply for SERT is successful completion of the probationary period. While Patterson failed to meet that minimum requirement, at least two Black officers did apply. One Black applicant was rejected due to excessive absenteeism (acceptable work attendance is another minimum requirement). The second Black applicant was accepted into SERT but injured her ankle during training.
Plaintiff has set forth no evidence or facts from which an inference could be drawn that defendants intentionally discriminated against Blacks in termination during probation, training, or SERT participation. Accordingly, Patterson's equal protection claims must be dismissed.
3. Conspiracy under Sections 1985 and 1986
Section 1985 provides a cause of action for redress when two or more persons conspire to, inter alia, deprive a person or class of persons of equal protection of the laws. 42 U.S.C. § 1985(3). An essential element of a conspiracy claim is deprivation of the right at issue. Mian, 7 F.3d at 1087. Plaintiff failed to establish that there was any genuine issue of material facts relating to his denial of equal protection claim. Accordingly, the conspiracy claim must be dismissed.
Section 1986 provides a cause of action when a person neglects to prevent a deprivation of rights as set forth in section 1985. 42 U.S.C. § 1986. "[A] § 1986 claim must e predicated upon a valid § 1985 claim." Mian, 7 F.3d at 1088. Patterson does not have a valid § 1985 claim. Accordingly, his § 1986 claim must be dismissed.
4. Richard DePhillips
DePhillips was never served with the complaint. Thus, any claims against him must be dismissed for lack of personal jurisdiction.
5. State Law Claims
All of Patterson's federal law claims must be dismissed. Therefore, supplemental jurisdiction over his state law claims is declined. See 28 U.S.C. § 1367(c)(3).
IV. CONCLUSION
Patterson's Title VII claims must be dismissed as the conduct all occurred more than 180 days prior to the filing of his EEOC charge. Plaintiff has not established any genuine issue of material fact with regard to his equal protection, conspiracy, and failure to prevent a conspiracy claims and they must be dismissed. Personal jurisdiction over DePhillips is lacking and claims against him must be dismissed. Having dismissed all of plaintiff's federal law claims, supplemental jurisdiction over his state law claims is declined.
Accordingly, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED;
2. All federal law claims are DISMISSED;
3. All state law claims are DISMISSED without prejudice.
The Clerk of the Court is directed to enter judgment dismissing the complaint in its entirety.
IT IS SO ORDERED.