Opinion
01 CV 10600 (TPG).
August 4, 2006
OPINION
Plaintiff Loretta Wynn brings this employment discrimination action alleging that, while employed with the New York City Police Department, she was repeatedly denied certain promotions on account of her race and sex. Defendants are the City of New York, the Police Department, and Michael Welsome and Joseph Maccone, two of plaintiff's supervisors at the Department.
Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1983, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law ("NYCHRL"), Administrative Code of the City of New York § 8-107.
Defendants have moved for summary judgment on all claims. The motion is granted.
FACTS
Plaintiff, an African-American female, was appointed a New York City Police Officer on July 13, 1981. Plaintiff was promoted to the rank of sergeant in November 1985. In July 1987, plaintiff was assigned to the Department's Pension Section, which, inter alia, administers, monitors and coordinates the Department's pension program for all active and retired uniformed members of the service. The Pension Section is one of a number of units under the direct control of the Deputy Commissioner Management and Budget ("DCMB").
The DCMB serves as the Department's chief financial officer, with responsibilities including financial planning, maintenance of facilities, payroll processing, and pension management. In addition to the Pension Section, the DCMB supervises several other units, including the Fiscal Affairs Division, the Financial Management Division, the Leave Integrity Management Section, and the Administrative Services Division.
The relevant chain of command as it pertains to this case is straightforward. The commanding officer of the Pension Section, who was plaintiff's immediate supervisor, reported to the DCMB, whose direct supervisor is the First Deputy Commissioner of the Department. The First deputy Commissioner, in turn, reports directly to the Commissioner of the Department.
From 1987 to 1992, the Commanding Officer of the Pension Section was Philip Bowden. Defendant Joseph Maccone took over as Commanding Officer in 1992 and served in that position until 2000. Maccone retired in February 2000, at which time defendant Michael Welsome took over as Commanding Officer.
During the relevant period, non-defendants Joseph Weunsch and Felix Lam consecutively served as DCMB, and non-defendant Patrick Kelleher was the First Deputy Commissioner. Defendant Bernard Kerik was the Commissioner of the New York City Police Department from August 21, 2000 until December 31, 2001.
The Pension Section was comprised of several subsections, each of which was supervised by an officer assigned by the Commanding Officer. From the time she was first assigned to the Pension Section in 1987, until 1992, plaintiff served as supervisor of the Pension Loan, Retiree Payroll, and Administrative Subsections, and also as the Pension Section's personnel officer. In 1992, plaintiff assumed the additional role of integrity control officer.
At some point during Maccone's tenure as Commanding Officer — the precise time is unclear from the record — Maccone removed plaintiff from her supervisory position as head of the Pension Loan Section because of a personal conflict she had with a civilian supervisor named Gay Taylor.
Sergeant Patrick Boughton, a white officer, also worked within the Pension Section, where he supervised the Retirement Section, the Calendar Preparation Section, and the Reproduction Subsections. Plaintiff and Boughton were similarly situated in terms of rank and responsibilities.
The Sergeant Special Assignment Designation
Within its ordinary rank structure, i.e. patrolman, sergeant, lieutenant etc., the Department also awards so called designations, which are further specifications within a rank that are both honorific and entitle the appointee to additional pay. One such designation, within the rank of sergeant, is entitled Sergeant Special Assignment.
There is no New York Police Department document detailing the qualifications for appointment to Sergeant Special Assignment, or the procedures by which such designations are awarded. Designations to Special Assignment are discretionary and are available on a sporadic basis, subject to funding availability. The parties to this lawsuit agree, in large part, about the procedure by which Special Assignment designations were awarded, but disagree on several crucial aspects.
Defendants have submitted an affidavit of George W. Anderson, Executive Officer of the Personnel Bureau of the New York Police Department, which explains the procedures by which Sergeant Special Assignment designations were awarded during the relevant period.
According to Anderson, once or twice a year the First Deputy Commissioner's Office would issue a memorandum to the Bureau Chiefs and Deputy Commissioners, such as the DCMB, indicating that funds were available for discretionary promotion to Sergeant Special Assignment. The Bureau Chiefs or Deputy Commissioners would then communicate the availability of positions to their various department and unit heads, such as the commanding officers of the various sections under their command.
The department or unit heads would recommend many more candidates for designations than there were positions available. The department or unit heads would include with their recommendations documentation about a candidate's qualifications, such as yearly performance evaluations, departmental recognitions and awards, and any other written recommendation. No guidelines, formal or informal, were issued as to the criteria that would justify a recommendation for the Special Assignment designation, or even the factors that department or unit heads were to consider in making such a recommendation.
Each Bureau Chief or Deputy Commissioner would then compile a list of candidates selected from the recommendations they received, which was forwarded to the Promotion Advisory Board. The Promotion Advisory Board consisted of the First Deputy Commissioner, Deputy Commissioner for Administration, Chief of Personnel, and Chief of the Department. The Promotion Advisory Board interviewed the candidates and placed their names on a "grid," which would then be reviewed to determine who would be nominated to the Commissioner for his final decision. The grid contained many more candidates than the number of available positions.
The record does not clearly indicate what factors could be, or were in fact, considered by the Promotion Advisory Board in selecting candidates from the grid for nomination to the Commissioner, or the weight given to any such factors. It is clear, however, that one factor that played a significant role was a candidate's yearly performance evaluations.
Each year, the commanding officer of each unit completed a performance evaluation for the officers under his supervision. The performance evaluation contained ratings of various aspects of an officer's performance, as well as an indication of any other specific recommendations with respect to the individual's future assignment within the Department.
When a Sergeant Special Assignment position became available, these performance evaluations were among the documents forwarded by department or unit heads together with their recommendations. Therefore, as a reward to their deserving subordinates, commanding officers would often include in the annual performance evaluation a recommendation that the candidate be given a Special Assignment designation.
It is important to note, however, that recommendations in annual performance evaluations alone were insufficient to receive consideration for a Special Assignment designation. Rather, it was necessary to receive a specific formal recommendation by a commanding officer or department head at a time that a position became available. Contrary to plaintiff's assertions, there is nothing in the record to suggest that such a recommendation could only be made in writing or on a particular form.
In addition to the annual performance evaluations, another consideration in awarding Special Assignment designations was the goal of distributing the limited number of positions equitably within the various units of the Department. While seniority does play a role in the discretionary promotion process, seniority alone does not guarantee selection.
Plaintiff asserts that under Department procedures, once an individual has been recommended for a designation, interviewed by the Promotional Advisory Board, and placed on the grid, they are then entitled to receive a designation in "priority order," i.e., on a first come, first served basis. Plaintiff also contends that once placed on the grid, a candidate for a Special Assignment designation cannot be removed unless upon a specific request to do so by his or her commanding officer.
However, plaintiff has submitted no competent evidence that Special Assignment designations are awarded on a prioritized basis or that once placed on the grid, a candidate's name could not be removed. In fact, the only document upon which plaintiff relies for these assertions clearly pertains to the promotion process for detective grades rather than Special Assignment designations.
Plaintiff's Candidacy for Sergeant Special Assignment Designation
On August 30, 1991, Bowden, then Commanding Officer of the Pension Section, wrote to the Department's Chief of Personnel to recommend plaintiff for a Sergeant Special Assignment designation. Bowden's memorandum stated that plaintiff
has been rated well above standards for the last two years. Punctuality, attendance and sick records are also well above standards. She holds a Masters Degree from Long Island University and a Bachelors Degree from Queens College.
In order to reward the high level of service orientation and technical competence by Sergeant Jefferson, request she be considered for Special Assignment Designation.
Plaintiff later married and filed this action under her married name, Loretta Wynn.
In November 1991, plaintiff was interviewed by the Promotional Advisory Board regarding her career and job performance. Plaintiff testified that Bowden later informed her that she had been approved by the Board and that her name was placed on the grid. Though plaintiff does not recall precisely when Bowden informed her that she was on the grid, she testified that it was some time prior to 1993.
Plaintiff also received recommendations for Sergeant Special Assignment designation on certain of her yearly evaluations. Plaintiff first received a recommendation for Sergeant Special Assignment designation in her yearly evaluation for the rating period ending January 15, 1992, which was completed by Bowden.
The following year, Maccone replaced Bowden as Commanding Officer. In Maccone's yearly evaluation for the rating period ending January 15, 1993, he maintained plaintiff's performance rating as "well above standards," but omitted any recommendation for a Sergeant Special Assignment designation.
Maccone testified that he omitted the recommendation in 1993 because, in his opinion, a Special Assignment designation was for performance "above and beyond" satisfactory job performance. Maccone stated that while plaintiff always did a satisfactory job, she did nothing special to qualify for the recommendation. Maccone also testified that the plaintiff's conflict with Gay Taylor, and the consequent need to remove her as supervisor of the Pension Loan Section, contributed to his decision not to nominate her in 1993.
The following year, in his annual evaluation of plaintiff for the rating period ending January 15, 1994, Maccone did recommended plaintiff for Sergeant Special Assignment designation, and continued to do so each year throughout his remaining tenure as Commanding Officer of the Pension Section, which ended with his retirement in February 2000.
After Maccone retired, his successor Welsome recommended plaintiff for the Special Assignment designation in his annual evaluation of plaintiff for the rating periods ending January 15, 2000 and January 15, 2001. Plaintiff retired in July 2001.
Despite Bowden's memorandum recommending plaintiff for designation to Special Assignment, and the recommendations contained in her yearly evaluations in 1992 and 1994 through 2000, plaintiff was never awarded the Special Assignment designation.
The Alleged Discriminatory Conduct
Plaintiff claims that she was wrongfully "passed over" for Special Assignment designation three times, on the basis of her race and sex, in favor of three white males who were less entitled to the designation. Plaintiff asserts that these three officers either were never placed on the grid, or were lower on the queue than plaintiff. Plaintiff also claims that the three officers had less seniority than she had or did not properly complete the required recommendation and interview process.
Plaintiff claims that, beginning in 1993, she was listed first among DCMB candidates for a Special Assignment designation. In support of this assertion, plaintiff testified that her interview before the Promotional Advisory Board took place on the same day as, and immediately after, the Board interviewed Sergeant Richard McLeer. Plaintiff states that McLeer was in first place on the list of DCMB candidates eligible for Special Assignment designation, and that when he retired in July 1993, she moved up from second to first place, giving her priority over all later nominees.
However, plaintiff offers no competent evidence to support these claims. Plaintiff admits that neither she nor McLeer ever saw the grid. At her deposition, plaintiff testified that "there were two people on the list that I knew of prior to [McLeer] leaving" and that once McLeer retired in 1993, she became first on the list. But there is no evidence in the record that McLeer was in fact number one on the list or that plaintiff was second in line after McLeer. Furthermore, there is no evidence that the grid was, in fact, a prioritized list.
In any event, plaintiff claims that the subsequent appointments of three white males were wrongful discriminatory acts. The facts concerning these three allegedly discriminatory appointments are as follows.
On December 20, 1995, Sergeant Kevin McDonald, assigned to the DCMB Investigations Unit, was given a Sergeant Special Assignment designation. McDonald was first recommended for this on his annual performance evaluations for the rating period ending January 15, 1991. He continued to receive these recommendations on his annual evaluations each year through his designation to Special Assignment in 1995. There is no evidence as to whether McDonald ever received a formal recommendation.
On December 22, 1998, Sergeant Kenneth Daub, assigned to the DCMB Quatermasters Section was given a Special Assignment designation. Daub was first recommended for this on his annual performance evaluations for Special Assignment designation for the rating period ending January 15, 1993. He continued to receive these recommendations on his annual evaluations each year through his designation to Special Assignment in 1998. There is no evidence as to whether Daub ever received a formal recommendation.
Plaintiff's allegations of race and sex discrimination focus primarily upon the appointment of Sergeant Patrick Boughton to Special Assignment designation on June 29, 2000. Plaintiff contends that Maccone discriminated against her on the basis of race and sex by recommending Boughton over her for Special Assignment designation. Plaintiff attempts to support this claim by asserting that Boughton received the designation without going through the official recommendation and vetting procedure, but rather through the "good old white boys network".
Boughton began working at the Pension Section in 1991 where he was assigned as supervisor of several subsections. On April 26, 1994, Maccone forwarded a memorandum to the Commissioner's Office recommending that Boughton be given a Sergeant Special Assignment designation. The memorandum cited Boughton for having initiated a computerized tracking system to improve the storage and retrieval of records of retired service members, and for incorporating all three floors of the Pension Section onto the same computer network, allowing for more efficient data management. The memorandum also stated:
In addition to the above described duties, Sergeant Boughton has been a valuable asset to the Chairman of the Police Pension Fund Board of Trustees. Each month the sergeant reviews the numerous case folders being submitted by the Medical Board for accuracy and completeness. He utilizes his prior medical experience to advise the Chairman of any instances which may be questionable. If a case requires additional information or further investigation, he assures that it is completed. He also has developed a computerized tracking system for all disability cases coming before the Pension Board.
In order to reward the high level of service orientation and technical competence by Sergeant Boughton, request she be considered for Special Assignment Designation.
Despite this recommendation, Boughton did not receive any designation at that time.
Boughton also received numerous recommendations for the designation in his yearly evaluations. Maccone first recommended Boughton in his yearly performance evaluations for the rating period ending January 15, 1994, and continued to do so through and including the date of Boughton received his Sergeant Special Assignment designation in June 2000, which came about as follows.
In late 1999, Maccone was informed by an Inspector Colgan from the Office of the DCMB that there would be an opening for one Special Assignment designation, and that the DCMB had decided to award it to someone within the Pension Section. Maccone was then asked by the DCMB's Office to make a recommendation.
At the time, there were only two sergeants within the Pension Section qualified to receive the designation, plaintiff and Boughton. In late 1999, Maccone recommended Boughton for the designation. This recommendation was communicated verbally.
Maccone testified that, although he liked plaintiff more than Boughton, and that plaintiff always performed her duties satisfactorily, he felt that Boughton was more deserving of the designation because he had gone above and beyond what was expected of him. Maccone provided three specific examples of Boughton's exceptional dedication and performance. He had reported to work even when he was out on sick leave with his ankle in a cast. He had worked numerous hours of overtime without seeking monetary compensation. And he had implemented a reproduction method which saved the City approximately $6000. By contrast, Maccone testified that although plaintiff "always did her job," she did not do anything special deserving of a designation. Maccone also stated that plaintiff's conflict with Gay Taylor and her consequent removal as supervisor of the pension loan section weighed against her. Maccone testified that he did not consider seniority as a factor in making his determination.
In January 2000, just prior to his retirement, Maccone paid a farewell visit to First Deputy Commissioner Kelleher. At this meeting, Maccone reiterated his prior recommendation that Boughton be designated for Special Assignment. Boughton was thereafter appointed Sergeant Special Assignment in June 2000.
After Maccone's retirement in February 2000, defendant Welsome became the Commanding Officer of the Pension Section and supervised plaintiff through her retirement in July 2001. Welsome did not participate in the decision to recommend that Boughton be given a Special Assignment designation, other than to recommend both plaintiff and Boughton for designations on their yearly performance evaluations for the rating periods ending January 15, 2000 and January 15, 2001. Indeed, in her deposition, plaintiff testified that her allegation of discrimination against Welsome was a mistake.
Furthermore, there is no evidence that any officer in the Pension Section received a designation to Special Assignment after Boughton received his in June 2000.
Administrative Proceedings
On May 4, 2001, plaintiff filed a complaint with the Police Department's Office of Equal Employment Opportunity asserting that she was the victim of discrimination because she was passed over for designation to Sergeant Special Assignment three times in favor of white males. On August 13, 2002, the Office concluded that plaintiff's allegations were unfounded.
On May 30, 2001, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission, complaining of race and sex discrimination. On August 23, 2001, the EEOC issued a Dismissal and Notice of Rights letter, indicating that, based upon its investigation, the EEOC was "unable to conclude that the information obtained establishes violations of the statutes." Plaintiff thereafter commenced this action on November 12, 2004.
DISCUSSION
In deciding a motion for summary judgment, a court shall render judgment "forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party has the initial burden of showing that there are no material facts in dispute. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion."Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987); Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985). However, if the court determines that there is insufficient evidence favoring the nonmoving party for a jury to return a verdict for that party, summary judgment is proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
Claims Under Title VII
Plaintiff claims that defendants discriminated against her on the basis of race and sex in violation of Title VII of the Civil Rights Act of 1964.
Title VII requires a claimant to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action. See 42 U.S.C. § 2000e-5(e); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992). This statutory requirement is analogous to a statute of limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). Thus, when a plaintiff fails to file a timely charge with the EEOC, a later claim is time-barred. Butts v. New York Dep't of Hous. Preservation Dev., 990 F.2d 1397, 1401 (2d Cir. 1993).
Here plaintiff filed her charge of discrimination with the EEOC on May 30, 2001. Thus, plaintiff's claims of discrimination that are based on conduct that occurred prior to August 3, 2000, 300 days before the filing of the Charge, are time-barred. Plaintiff claims to have been subject to discrimination on three occasions: (1) on December 20, 1995, when McDonald, rather than plaintiff, was promoted to Sergeant Special Assignment; (2) on December 22, 1998, when Daub, rather than plaintiff, was promoted to Sergeant Special Assignment; and (3) on June 29, 2000, when Boughton, rather than plaintiff, was promoted to Sergeant Special Assignment. Since each of these alleged instances of discrimination occurred prior to August 3, 2000, they are all time-barred.
Plaintiff nevertheless argues that her Title VII claim survives because the limitations period is tolled by the continuing violations doctrine. Plaintiff asserts that defendants' discrimination against her continued into the 300-day limitations period because requests for Sergeant Special Assignment designations within DCMB were pending through the date she filed her EEOC complaint and that "these requests did not even contain plaintiff's name."
Plaintiff also asserts that the alleged discrimination which she experienced is a continuing violation because it is part of a pattern or practice by the Department of discriminating against female and minority candidates for Special Assignment designation. As proof of this alleged discriminatory policy, plaintiff cites a document prepared during the OEEO investigation stating that "all persons promoted to the rank of Sergeant Special Assignment in the office of the DCMB during the period 1995-2001 have been male/white."
Under the continuing violations doctrine, "a plaintiff who files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination extends the limitations period for all claims of discriminatory acts committed under that policy even if those acts, standing alone, would have been barred by the statute of limitations."MacDonnell v. Liberty Cent. Sch. Dist., 115 Fed. Appx. 489, 490-491 (2d Cir. 2004); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).
Thus, there are two prerequisites to the application of the continuing violations doctrine. First, at least one of the charges of discrimination contained in the EEOC complaint must be timely, i.e., the charge must allege that a particular discriminatory act occurred within the 300-day limitations period. Second, the alleged discriminatory act that is timely complained of must have been committed in furtherance of an ongoing policy or general practice of discrimination.MacDonnell, 115 Fed. Appx. at 490-491.
As to the second requirement, the Second Circuit has held that "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). Rather, there must be proof of specific ongoing discriminatory polices or practices, or specific and related instances of discrimination, which are permitted by the employer to continue un-remedied for so long as to amount to a discriminatory policy or practice. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765-766 (2d Cir. 1998); Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
The court finds the continuing violations doctrine inapplicable to the present case on two grounds. First, plaintiff has not alleged that any actionable discriminatory conduct occurred within the limitations period. In this regard, plaintiff does not even allege, let alone provide evidence, that anyone from DCMB received a Special Assignment designation within the 300-day period prior to plaintiff's filing of her EEOC complaint.
Plaintiff has also provided no evidence to support her assertions that, as of May 30, 2001, requests for Sergeant special assignment designation were pending or that the requests did not include plaintiff's name. But even if plaintiff's allegations in this regard were true, they would fail to state an actionable claim within the limitations period because the mere failure to recommend does not constitute an adverse employment action under Title VII where no promotions were in fact available. Jenkins v. Bd. of Educ., 64 Fed. Appx. 801, 804 (2d Cir. 2003). The absence of any actionable wrong during this period precludes application of the continuing violations doctrine.
The continuing violations doctrine is also inapplicable for the separate reason that plaintiff has failed to show a Police Department policy or practice of denying Special Assignment designations to female or minority officers. The discriminatory acts asserted by plaintiff in the present case can hardly be viewed as related. Each of the three officers in favor of whom plaintiff was allegedly passed over was from a different section within DCMB and received the recommendation of a different supervisor. Moreover, the appointments occurred years apart.
Plaintiff asserts that a Departmental policy of distributing Special Assignment designations on a discriminatory basis may be inferred from an internal OEEO memorandum prepared during the investigation of plaintiff's complaints, which states that between 1995 and 2000, the only DCMB officers to receive designations were white males. However, defendants have submitted Departmental data conclusively refuting plaintiff's allegations that the Police Departmental has a policy or practice of discriminating with respect to the award of Sergeant Special Assignment designations.
Before the court is Department-wide data relating to the gender and racial breakdown of individuals assigned the rank of sergeant, and the gender and racial breakdown of those officers receiving designations to Sergeant Special Assignment for the period from 1995 through 2001. The following table summarizes this data.
Year Total Total Total Percentage Percentage Percentage Percentage Number of of Sergeant of Sergeant of African- of Female Available Special Special American Sergeants Sergeant Assignment Assignment Sergeants in the Special Promotions Promotions in the Department Assignment Awarded to Awarded to Department Promotions African- Female American Sergeants Sergeants 1995 7% 8.4% 22 9.1% 18.2% 1996 6.1% 9% 7 14.3% 28.6% 1997 6.5% 9.8% 23 8.7% 8.7% 1998 7% 9.8% 14 7.1% 14.3% 1999 7.2% 10.3% 10 20% 10% 2000 7.2% 10.2% 10 0% 10% 2001 7.6% 10.3% 41 9.8% 19.5% The data contained in this table shows that African-American and female sergeants in the Department received Sergeant Special Assignment designations in roughly equivalent percentages to the percentages in which those individuals held the rank of sergeant. Females were consistently awarded a greater percentage of designations than were eligible for such a promotion. Furthermore, in every year but one between 1995 and 2001 African-Americans received a percentage of designations greater (and sometimes much greater) than the overall percentage of eligible African-American candidates. The data therefore fails to support plaintiff's claim of a discriminatory Departmental policy or practice, which is a necessary prerequisite to application of the continuing violations doctrine.Plaintiff's Title VII claims are therefore not tolled by the continuing violations doctrine. Because all the discriminatory acts alleged by plaintiff occurred outside the 300-day limitations period, plaintiff's Title VII claims are time-barred and must be dismissed.
Claims Under 28 U.S.C. § 1983, NYSHRL, and NYCHRL
Plaintiff also brings her failure to promote claims under 28 U.S.C. § 1983, the NYSHRL, and the NYCHRL. It is well-established that employment discrimination claims brought under Section 1983, New York Executive Law § 296, and the Administrative Code of the City of New York are all evaluated under the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), which first articulated the standard in the Title VII context. Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000); Torres v. Pisano, 116 F.3d 625, 629 (2d Cir. 1997).
In the first stage of the McDonnell Douglas analysis, the plaintiff must establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. Weinstock, 224 F.3d at 42;McDonnell Douglas, 411 U.S. at 802.
Even if the plaintiff succeeds in presenting a prima facie case, the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action.Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000);Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Once the defendant articulates such a non-discriminatory reason for the employment action, the presumption of discrimination arising from the establishment of the prima facie case drops from the picture. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). To avoid summary judgment, the plaintiff must then come forward with evidence that the defendant's proffered non-discriminatory reason is a mere pretext for actual discrimination. 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."Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994).
Defendants assume for the purposes of this motion that plaintiff has established the first three elements of her prima facie case under McDonnell Douglas. The court finds that plaintiff has indeed satisfied these three elements. Plaintiff, an African-American female, is a member of a protected class. She was qualified for her position. In addition, plaintiff's failure to receive an available promotion to Sergeant Special Assignment during the relevant period constitutes an adverse employment action.
As to the fourth and final element of plaintiff's prima facie case, i.e., whether circumstances surrounding the adverse employment action give rise to an inference of race or gender discrimination, the issues overlap with the question whether defendants have provided legitimate non-discriminatory reasons for the adverse employment action. Plaintiff fails on each of these points.
It is undisputed that, unlike ordinary rank promotions within the Department, Special Assignment designations are discretionary awards for exemplary service that are available only periodically depending upon budgetary constraints. Furthermore, contrary to plaintiff's contentions, no discriminatory motive may be inferred from the fact that McDonald, Daub, and Boughton received designations while she did not. These officers had each been repeatedly recommended for the designation on their annual evaluations and, contrary to plaintiff's assertions, they all received the promotion in conformity with the official process.
The promotions of McDonald and Daub cannot create an inference of discrimination because those two officers did not work in the Pension Section. It is undisputed that no Special Assignment designations were awarded to any Pension Section employees from 1992 until 2000. Because McDonald and Daub were in different units, they were not similarly situated to plaintiff, and their promotions fail to raise an inference of discrimination. Moreover, there is no evidence whatever that McDonald or Daub received their designations because of their white race or that in selecting them the Department was discriminating against African-Americans.
Plaintiff's claim with respect to Boughton is also without merit. Boughton was an officer in the Pension Section. He began receiving recommendations on his yearly performance evaluations in 1994. Plaintiff asserts that an inference of discrimination may be drawn from Maccone's recommendation of Boughton because she was on top of the "grid" and therefore eligible for priority, and because Boughton did not go through the official process. There is no support for either of these claims.
With respect to Maccone's decision to recommend Boughton instead of plaintiff, Maccone testified that he felt Special Assignment designations were for service members who went above and beyond their job requirements, and that, while plaintiff always performed her job properly, Boughton's work was superlative.
Maccone testified that Boughton was an exceptionally dedicated and hard-working officer. He had reported to work even when he was out on sick leave with his ankle in a cast, had worked numerous hours of overtime without seeking monetary compensation, and had implement a reproduction method which saved the City approximately $6000. Plaintiff has not suggested that these non-discriminatory justifications are untrue, nor has she proffered any evidence that it is pretext for some underlying discriminatory motivation.
Furthermore, plaintiff has not submitted any evidence showing that her name appeared first on the grid. In fact, plaintiff testified that she never saw the grid and, in any event, there is no evidence that the grid was a prioritized listing.
Contrary to plaintiff's assertion, Boughton did go through the official process to receive a designation. Boughton was officially recommended for a designation by Maccone in a letter to the Commissioner dated April 26, 1994. He subsequently received recommendations for designation each year from 1994 through 2000. In late 1999, Maccone was informed by the DCMB's Office that a Sergeant Special Assignment position had become available and was to be awarded to someone from the Pension Section. Maccone then verbally communicated his recommendation of Boughton to Colgan of the DCMB's Office. These facts show that the official process was observed in every respect.
Plaintiff nevertheless states that Maccone's conduct was suspicious because his recommendation to Colgan was not in writing and because of his later unsolicited recommendation of Boughton to First Deputy Commissioner Kelleher. But there is nothing requiring a recommendation to be in writing. Nor is there anything suspicious about Maccone reiterating his initial recommendation to Kelleher. Finally, although it is true that plaintiff began working in the Pension Section prior to Boughton, seniority was only one factor among many in considering eligibility for designation to Special Assignment status.
Plaintiff has not satisfied the fourth element of her prima facie case, and cannot overcome defendants' legitimate non-discriminatory reasons for failing to promote her. Because plaintiff has not met her burden under the McDonnell Douglas test, her claims under 28 U.S.C. § 1983, the NYSHRL, and the NYCHRL must be dismissed.
CONCLUSION
Defendants' motion for summary judgment is granted.
SO ORDERED.