Summary
holding insufficient evidence of adverse employment action where plaintiff failed to provide, inter alia, evidence that his responsibilities diminished as a result of the transfer
Summary of this case from DeSIMONE v. JP MORGAN/CHASE BANKOpinion
99 CIV. 11523 (DLC).
December 28, 2000.
Paul N. Cisternino, Cisternino Weinstein, LLP.; Attorney for Plaintiff
Kevin Smith, Assistant Corporation Counsel; Attorney for Defendant
OPINION AND ORDER
Following a trial held on October 10 through October 12, 2000, the jury awarded Police Department Detective Robert Chu ("Chu") $50,000 in emotional distress damages on his claim that the City of New York ("City") had retaliated against him for his complaints of race discrimination. Pursuant to Rule 50, Fed.R.Civ.P., the City has made a timely motion for judgment as a matter of law with regard to the plaintiff's claim of retaliation as well as the award of damages. For the reasons discussed below, defendant's motion is granted as to the retaliation claim.
BACKGROUND
At the jury trial, the plaintiff made three claims, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 and 2000e-3: (1) that he was discriminated against because of his race in the defendant's failure to promote him from Detective 3rd Grade to Detective 2nd Grade; (2) that he was subjected to a hostile work environment; and (3) that he was transferred from the Executive Protection Unit ("EPU") to the 72nd Precinct Detective Squad ("72nd Precinct") in retaliation for complaining about discrimination. The evidence at trial included the following. Chu began employment with the New York Police Department ("NYPD") in 1984, as part of the Organized Crime Control Bureau. In April 1987, he was promoted from police officer to Detective Third Grade. In June 1990, he moved to the Intelligence Division, first as part of the Organized Crime Monitoring Unit and then in 1992, as part of the overnight detail at the EPU, the unit that protects City executives including the Mayor and his family. It was undisputed at trial that the EPU is considered an "elite" unit within the NYPD.
To accommodate Chu's request, he was taken off the overnight detail and was given the job of "relief officer" on the B Team assigned to protect the Mayor's wife. As with the other teams on the Mayor's wife's detail and in the EPU in general, Team B's hierarchy was structured with the "primary" officer at the top, followed in order by the "driver," the "advance" person, and then the "relief officer." Chu received positive performance evaluations, specifically that he was a "solid member" of the unit who "performed well" in difficult security situations. Nonetheless, at a meeting in November 1995, with Inspector Byrne ("Byrne"), the commanding officer of the EPU, Chu learned that he would not be promoted that year to Detective Second Grade because he did not "rate" a promotion. At trial, Byrne explained that he found Chu to be "an average person in a[n] above average unit" who "didn't have the necessary qualifications to advance in the unit" because he was "laid back, very reserved, reticent" and not a "self-starter." Byrne testified that he believed Chu's skills lay in investigations, which did not involve the "type of pressure that we were under in a highly specialized unit that required someone who is really fast and aggressive at times when necessary." He testified that Chu "would do better in a unit where his ability for investigations" would be more utilized. Using a phrase that became the focus of considerable attention at the trial, Byrne suggested to Chu that he use "his Chinese" if he wanted to get a promotion. Byrne explained this as a reference to Chu's language skills which Chu had already used to advance his career in the NYPD. Chu testified that he came to understand this as an inappropriate racial comment.
Chu testified that the Mayor's own teams also included a "number two" position, arranged within the hierarchy between the primary and the driver.
Promotions were announced after the November meeting with Byrne, and Chu was not among them. Chu admitted on cross-examination that none of the ten promotions within the EPU that occurred during the 1995-1996 time period at issue in the trial went to "relief officers," and that most of the promotions went to individuals assigned to the Mayor's team rather than the other EPU teams. While Chu pointed to several individuals who had started as relief officers and had received promotions in the years after he had left the EPU, he admitted that he did not know what position those individuals actually held at the time they were promoted. He also admitted that, unlike other people in the EPU, he had never asked to be positioned as a "primary" or "number two."
Chu admitted on cross-examination that, after he left the EPU, another Asian American detective was promoted from Detective Third Grade to a Detective Second Grade while a "relief officer." Unlike Chu, however, this detective served on the Mayor's detail.
Chu met with Byrne and Captain Pedro Pineiro ("Pineiro"), on January 18, 1996, to discuss the promotions that had just been announced. After he was told again that he would not be promoted, Chu complained that he had seen several of the promoted individuals "sleeping or missing action moves which are very critical to what we're supposed to be doing." Chu also complained that one of his own team members, who had wrongfully accused Chu of conducting personal work on the job, had also been engaged in misconduct, specifically he had been waving his gun around inappropriately and kicking some luggage belonging to a member of the Mayor's staff. Midway through the meeting, Chu pulled out a cassette recorder, claiming that he had recorded the entire meeting with Byrne and Pineiro. Chu testified at trial that he had not actually recorded the first part of the meeting and that he had lied to his superior officers when he said he had done so. At some point during the meeting, after complaining about misconduct by other EPU officers, Chu also mentioned several acts of alleged racial discrimination. These acts were the mimicking of a Chinese accent by one EPU Detective in front of other officers as well as a comment by an officer in front of Pineiro to "[t]ell the Chinaman to get the food."
Chu's allegations of misconduct were immediately referred for internal investigation. Internal Affairs conducted an investigation of each of the charges of misconduct made against Chu's fellow officers in the EPU with the exception of the race discrimination claims, where were investigated by the NYPD Equal Opportunity Employment office. Byrne testified that while the investigation into Chu's charges was ongoing, he "had to pull . . . had to remove Detective Chu" and the officer against whom Chu made complaints about the gun and luggage from their work stations. Byrne testified that Chu also asked on January 18, 1996, to be transferred to a detective position near his home — the 72nd Precinct — and that he took steps that very night to accommodate Chu's request. Chu maintained that he never requested the transfer. Byrne testified that when he learned that Chu had denied that he had just requested the transfer to the 72nd Precinct, he ordered an involuntary transfer both because Chu had taped the January 18 meeting and because Chu was lying regarding the transfer request.
At the close of the evidence, the defendant made a Rule 50 motion with regard to all three of the plaintiff's Title VII claims. The Court dismissed the hostile work environment claim and reserved judgment on the other two claims. The jury found for the City on the discrimination claim, but awarded Chu $50,000 on the retaliation claim. After the jury rendered its verdict, the defendant renewed its Rule 50 motion as to the retaliation claim. In its brief submitted in support of its motion, the defendant also requests judgment in its favor on the ground that the plaintiff failed to demonstrate any emotional injury as a result of the retaliation.
At the close of the plaintiff's case, the defense indicated its intention to make motions pursuant to Rule 50, Fed.R.Civ.P. The Court decided to hear those motions at the end of the afternoon's testimony. The defense rested before the end of the afternoon and defense renewed its motion at the close of the evidence.
DISCUSSION
A. Judgment as a Matter of Law
A party may move for judgment as a matter of law pursuant to Rule 50 (b), Fed.R.Civ.P., after having made such a motion during a trial at the close of all the evidence. In ruling on a motion for judgment as a matter of law, the court must deny the motion unless,
viewed in the light most favorable to the nonmoving party, the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.Simms v. Village of Albion, New York, 115 F.3d 1098, 1110 (2d Cir. 1997). Consequently, a motion for judgment as a matter of law should only be granted when
(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair-minded [persons] could not arrive at a verdict against [it]Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir. 2000).
Because the defendant failed to move at the close of the evidence to dismiss the plaintiff's emotional distress claim, it may not now do so.See Wolak v. Spucci, 217 F.3d 157, 158 n. 2 (2d Cir. 2000). Accordingly, the Court considers only the Rule 50 motion with regard to liability on the retaliation claim.
B. Retaliation
Title VII provides that it is an unlawful employment practice "for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this [statute]." 42 U.S.C. § 2000e-3 (a). Courts analyzing retaliation claims under Title VII apply the three-step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972)Richardson v. New York State Dep't of Correctional Service, 180 F.3d 426, 443 (2d Cir. 1999). The plaintiff must first establish a prima facie case by showing (1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Cruz v. Coach, 202 F.3d 560, 566 (2d Cir. 2000). "The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Id.
At issue in this motion is whether the plaintiff established at trial that he had been subject to an adverse employment action. An adverse employment action is a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000) (internal quotations omitted). A materially adverse change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (internal citation omitted). Examples of such a change include "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." Id. (internal quotations omitted)
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." Id. at 641. A "purely lateral transfer" that involves no demotion in form or substance is not a materially adverse action. Id. (citing Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996)). The "`key inquiry'" with regard to an involuntary transfer is "`whether the transfer constitutes a negative employment action tantamount to a demotion.'" Id. (quoting Patrolmen's Benevolent Ass'n of the City of New York. Inc. v. City of New York, 74 F. Supp.2d 321, 335 (S.D.N.Y. 1999)). In essence, the transfer must create a "materially significant disadvantage," which may be shown by evidence of a transfer to a position that is materially less prestigious, less suited to one's skills, or less conducive to advancement. Id. Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of adverse. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (internal quotations omitted)
The Court instructed the jury on the elements of a retaliation claim without objection from either party. The Court's instruction regarding an "adverse employment action" was as follows,
An adverse employment action is any action that materially changes the terms and conditions of an individual's employment for the worse. Not every alteration in the conditions of employment amounts to an adverse employment action. To be a material change, a change must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Decisions to fire, to demote, or not to hire or promote an individual are examples of adverse employment actions. You may find that a transfer is an adverse employment action if it results in a change in responsibilities that is so significant that it constitutes a setback to a career or is tantamount to a demotion. In evaluating whether the transfer at issue here was an adverse employment action, you should use your common sense.
The defendant argues that the plaintiff failed to prove that his transfer was an adverse employment action since he introduced no evidence whatsoever about his responsibilities or opportunities for promotion at the 72nd Precinct. Plaintiff argues in response that the evidence, when taken in the light most favorable to him, showed a materially significant disadvantage in that: (1) the transfer resulted in a material alteration of his duties and responsibilities; (2) the transfer resulted in an assignment where promotional opportunities were less available to him; and (3) he was transferred out of an elite unit.
In response to the first argument, the defendant asserts that the plaintiff failed to prove that the transfer was not a lateral one because he presented no evidence regarding the differences between his responsibilities in the EPU and the 72nd Precinct. For example, there was no evidence that the plaintiff suffered any diminution in salary or benefits or that his responsibilities or work diminished as a result of the transfer. Plaintiff counters that it is "obvious" that responsibilities in a protection unit like the EPU differ from those in an "investigations" unit like the Detective Squad at the 72nd Precinct. While the plaintiff did testify that the 72nd Precinct Detective Squad is an "investigations" unit, he submitted no evidence about his duties in that assignment that would allow the jury to compare his responsibilities there with those of a relief officer in the B Team on the Mayor's wife's protection detail. Consequently, the jury had no evidence from which to conclude that the transfer had resulted in a setback to Chu's career, was tantamount to a demotion, or was in any other way a materially significant disadvantage to him.
Chu cites Rodriguez v. Board of Education, 620 F.2d 362 (2d Cir. 1980), to support his assertion that a transfer that does not involve a decrease in salary may nonetheless be an adverse employment action. The plaintiff in Rodriguez, a teacher with twenty years of experience as well as post-graduate degrees in art and art education, was transferred from a junior high school art program to one in an elementary school. Id. at 364. The Court found that the two art programs were "so profoundly different" so as to constitute a "radical change in the nature" of the plaintiff's work and "render utterly useless" her twenty years of experience and study. Id. at 366. The plaintiff points to no evidence — nor was there any — that approximates the evidence provided by the plaintiff in Rodriguez. While a plaintiff need not provide as much evidence as the plaintiff in Rodriguez, the plaintiff must still show that the transfer created a "materially significant disadvantage."Galabya, 202 F.3d at 641. This Chu did not do. In fact, virtually the only evidence regarding Chu's skills indicated that he would be materially assisted by the transfer. Byrne testified without contradiction that Chu's skills and abilities were as an investigator and were better suited to the 72nd Precinct.
With respect to the plaintiff's second argument, the defendant asserts that the plaintiff provided no evidence that he would be any less likely to receive a promotion at the 72nd Precinct. Plaintiff counters that the jury could have drawn an inference that promotional opportunities were more readily available in the EPU from the testimony that the EPU was the "unit that promotes the most" and that "[a]ll you needed [for a promotion in the EPU] was a pulse and a suit." This conclusory testimony was not corroborated by statistics or other detailed comparative analysis. Moreover, while promotions may have been common in general in the EPU, the plaintiff offered no evidence that he was more likely to receive a promotion in the EPU compared to the 72nd Precinct. The jury's verdict against the plaintiff on his claim of discrimination for failure to promote weakens the plaintiff's argument that the jury found that he was entitled to receive a promotion within the EPU. Chu admitted on cross-examination that the promotions from within the EPU came mainly from the positions designated as "primary" or "number two" while he filled a "relief" position that was lower in the hierarchy. He also admitted that, unlike other people in the EPU, he did not ask to be elevated to either a "primary" or "number two." Chu provided absolutely no evidence concerning his opportunities for career advancement in the 72nd Precinct. Again, the only evidence regarding Chu's own promotional opportunities came from Byrne, who testified that Chu was only "average" in an "above average unit" and that he was not the type of "self-starter" who would advance in the EPU. According to Byrne's uncontradicted testimony, Chu would be more likely to advance in an investigations unit like the 72nd Precinct, where his skills as an investigator would have greater value.
Despite Byrne's testimony that he "had to pull" Chu from the EPU after Chu made allegations against his fellow team members and co-workers or that he prepared an involuntary transfer after Chu taped the January 18 meeting and lied to Byrne by denying he had requested a transfer, the defense has not specifically argued that Chu had generated such resentment and distrust that he never would have been promoted within the EPU even if he had not alleged race discrimination — and that his chances for promotion might in fact improve with a transfer. Compare Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000) (A defendant may avoid liability by showing "by a preponderance of the evidence that it would have reached the same decision as to [the employment action] even in the absence of the protected conduct."). Nor has the defense pressed the argument that it had no alternative but to transfer him for his own protection after the allegations he made against his co-workers.Compare Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000) ("[T]he way in which an employee presses complaints of discrimination can be so disruptive or insubordinate that it strips away protections against retaliation.").
The plaintiff's principal argument rests on the undisputed fact that he was transferred from an elite unit. While the defendant does not dispute that the EPU is an elite unit, it argues that the plaintiff failed to put forth any comparable evidence concerning the prestige — or lack thereof — of the 72nd Precinct Detective Unit.
Transfer from an elite unit, standing alone, is not a material disadvantage. Chu offered no evidence that he had suffered any particular disadvantage because of the transfer. He did not point to any special skills or education that he could no longer use. He did not suggest that he had to work longer hours or commute further. He identified no particular way in which he was dissatisfied with his current position. He admitted that he has not requested a transfer out of the 72nd Precinct. Again, Byrne's testimony that Chu would be able to do better at the 72nd Precinct than he had within the EPU was uncontested at trial, as was his assertion that Chu was unfit for promotion within the EPU. In sum, the overwhelming evidence at trial established that while the EPU was an elite unit, it offered Chu little opportunity for career advancement. There is no material disadvantage in a transfer out of a unit — even an elite unit — where one's chances of promotion are virtually non-existent and into a unit where one's skills will be more valued. Chu's personal unhappiness with the transfer is, by itself, insufficient to constitute an adverse employment action. See, e.g., Patrolmen's Benevolent Ass'n, 74 F. Supp.2d at 334 (citing Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 377 (S.D.N.Y. 1999))
Plaintiff cites De La Cruz v. New York City Human Resources Admin., 82 F.3d 16 (2d Cir. 1996), to support his argument that an adverse employment action may exist where the only adverse effect is that an individual was transferred out of a so-called elite unit. The transfer inDe La Cruz, however, had meant the loss of both prestige and opportunities for advancement, to a unit with "little opportunity for professional growth." De La Cruz, 82 F.3d at 21. Similarly, in Patrolmen's Benevolent Ass'n, the plaintiff established an issue of fact as to whether the transfer meant the loss of long-term professional relationships developed over years at former precincts which could harm future promotional opportunities more public and internal affairs scrutiny of the new precinct, a more dangerous neighborhood entailing greater personal risks, and a lack of respect within the community for the new precinct. Id. at 335-36. As noted, Chu offered no evidence that he was disadvantaged by his transfer in any of these specific ways or in any other material way.
Viewing the evidence in the light most favorable to Chu, there is no basis on which to conclude that his transfer constituted an adverse employment action. Since Chu failed to offer any evidence to establish that the transfer was a setback to his career, was tantamount to a demotion, or was a materially adverse change in any other way in the terms and conditions of his employment, the jury's finding could only have been based on conjecture.
CONCLUSION
The defendant's motion for judgment as a matter of law is granted. The jury verdict is set aside in its entirety. Judgment is entered for the defendant.