Opinion
Index No. 503171/2014
05-01-2020
DENISE MCDONALD, Plaintiff, v. THE CITY OF NEW YORK, RAYMOND KELLY, Commissioner of the New York City Police Department, SERGEANT EILEEN DOWNING, SERGEANT BIACANIELLO, and SERGEANT ECHEVARRIA, each being sued in their individual and professional capacities, Defendants.
NYSCEF DOC. NO. 64 At an IAS Term, Part 22 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 1st day of May 2020.
DECISION & ORDER
Hon. Rosemarie Montalbano
Recitation, as required by CPLR § 2219[a], of the papers considered in the review of the defendants' summary judgment motion:
| Papers Numbered | |
|---|---|
| Notice of Motion and Affidavit | 1 |
| Order to Show Cause and Affidavits Annexed | __________ |
| Answering Affidavits | 2 |
| Replying Affidavits | 3 |
Introduction
This is an action alleging race and gender discrimination, a hostile work environment and retaliation, in violation of New York State and New York City Humans Rights Laws (New York State Executive Law § 296; New York City Administrative Code § 8-101). Defendants the City of New York, Raymond Kelly, Commissioner of he New York City Police Department, Sergeant Eileen Downing, Sergeant Biacaniello, and Sergeant Echevarria (collectively "the City") move for summary judgment. Plaintiff opposes.
Factual Background and Procedural History
The Court has gleaned the following facts from the pleadings and the documents submitted by the parties in connection with the present motion:
Plaintiff, an African American female, was appointed as a Police Officer with the New York City Police Department ("NYPD") on October 15, 1990. The events alleged in the complaint and the facts that give rise to plaintiff's complaint begin on or about April 12, 2011.
On April 12, 2011, plaintiff was assigned to a hospital prisoner post, where she was to monitor a prisoner. During that hospital post she was visited by Defendant Sergeant Eileen Downing ("Downing"). Downing, as part of her duties, had dropped in on plaintiff at the hospital and insisted plaintiff "ink print the prisoner" she was watching. Plaintiff responded that she was unfamiliar with that "inking" process. Downing replied that if upon her return the prisoner is not "printed" she would see to it that plaintiff be assigned the hospital post againt the following morning.
Upon returning that day to plaintiff's post, Downing initially had difficulty locating Officer McDonald. Eventually she located plaintiff on another floor with the prisoner. They discussed that protocol required that plaintiff notify the "desk officer" before transporting prisoners to another floor and that since Officer McDonald had failed to follow protocol, Downing would record such malfeasance in "the minor violations log" as "changing floors without notifying the desk."
Officer McDonald then in return made an entry in her memo book that Downing was discriminating against and harassing her.
Downing later read plaintiff's memo book entry and reported it to Lieutenant Ehric, Integrity Control Officer. Lieutenant Ehric copied the memo book entry and notified the NYPD Office of Equal Employment Opportunity ("OEEO"). Following a conversation with the OEEO, Lieutenant Ehric and plaintiff all participating, the OEEO had determined that such acts did "not meet [their] criteria."
On May 14, 2011, Downing called plaintiff to make an arrest. Present were two unidentified officers, allegedly Caucasian males, who were permitted to leave upon plaintiff's arrival.
On May 28, May 29, and June 19, 2011, plaintiff was assigned to work radio mobile patrol ("RMP") unaccompanied.
On June 5, 2011, plaintiff was assigned to a critical response ("CRV") foot post.
On September 20, 2011, Downing instructed plaintiff to "make an arrest." Plaintiff complied but stated that she had already "made two" arrests that month. Plaintiff contends that her commanding officer required a "minimum of two arrests per month per officer." Plaintiff then pointed out to Downing that Police Officer Pszeniczny, a Caucasian male, had not effected any arrests. Plaintiff alleges that she informed Lieutenant Brunner of this incident.
On April 5, 2012, Downing removed plaintiff from her current post, replaced her with a male officer, and gave her another RMP post, unaccompanied. Plaintiff then questioned Downing as to why she would allow a female officer to work unaccompanied.
On April 23, 2012, Defendant Sergeant Biancaniello ("Biancaniello") assigned plaintiff to work a RMP post, unaccompanied. During that tour plaintiff responded to five (5) vehicle accidents and then requested a meal break, Biancaniello denied her request and assigned her another vehicle accident. Biancaniello later repeatedly "raised" plaintiff over the radio but plaintiff did not respond because she believed another assignment was coming. Biancaniello subsequently cited plaintiff in the minor violations log for failing to monitor her radio, failing to answer radio calls.
On or about May 1, 2012, Downing gave plaintiff a dead on arrival ("DOA") assignment. Police Officer Rowley, a black-male, accompanied Officer McDonald to the site. Upon their arrival, Police Officer Rowley and his unidentified partner were then allowed to leave.
On September 9, 2012, defendant Sergeant Echevarria, who identifies as Hispanic and plaintiff asserts is Caucasian, instructed plaintiff to make an arrest within the 104th Precinct. Plaintiff complied.
On September 13, 2012, plaintiff, while assigned to the 104th Police Precinct, made three (3) arrests. After submitting her arrest report, plaintiff made changes to the document by citing the police officers who were present, stating the officers "failed to take appropriate action." Defendant Sergeant Echevarria, then issued plaintiff a command discipline for changing a complaint report without authorization.
On September 25, 2012, Echevarria inquired of plaintiff regarding an Internal Affairs Bureau number for the officers cited in her September 13th arrest report. Plaintiff alleges Echevarria threatened her with another command discipline if the said officers receive a command discipline. Echevarria denies those allegations stating that it would be impossible to issue plaintiff with a command discipline for such conduct as there's mechanism in the patrol guide to do so.
On October 5, and October 6, 2012, plaintiff was assigned to a RMP with a partner. On both dates during the assignment Officer McDonald's partner was reassigned. Plaintiff resumed her post unaccompanied.
On October 13, 2012, plaintiff she was assigned a foot patrol post. On October 14, and 21, 2012, plaintiff she was assigned to a RMP, unaccompanied.
On October 25, 2012, plaintiff was assigned to a RMP post, then assigned to a barrier detail, then reassigned back to the RMP post.
On October 27, 2012, plaintiff was assigned to a hospitalized prisoner post, unaccompanied. After completing that assignment Echevarria assigned plaintiff to respond to a stolen vehicle that was recovered and to relieve two officers on the scene. Plaintiff asserts that at this time she was denied her meal break twice. After completing that task Officer McDonald was then directed to respond to another vehicle accident, unaccompanied, and without leave for her meal break.
On or about October 29, 2012, plaintiff was assigned to a hospitalized prisoner post. She the requested a meal break from Downing. Downing replied that she would respond to the request at a later time. Plaintiff then contacted Lieutenant Falley, NYPD Labor Relations to complain of harassment and preferential treatment of Caucasian male officers and that Downing is giving her undesirable posts.
On November 1, 2012, Downing assigned plaintiff to a stationary foot post. On November 2, 2012, plaintiff was assigned to a foot post. On November 3, 2012, plaintiff was assigned to a foot patrol. On November 4, 2012, plaintiff and a "Hispanic" female were allegedly assigned to replace Police Officers Loso and Czerech, two Caucasian males at another command.
On November 5, 2012, plaintiff was assigned to work at another command. On November 10, 2012, plaintiff was assigned to a RMP post but was then reassigned to a stationary foot post.
On November 12, 2012, plaintiff responded to a "broken-down trailer call." Downing arrived and wrote in plaintiff's memo book that a tow truck responded.
On January 10, 2013, a confrontation ensued between plaintiff and Downing which resulted in plaintiff's suspension. At the request of the executive officer of the 108th Police Precinct, Captain Hugh Bogle, charges and specifications were proffered, and a disciplinary trial ensued. On August 26, 2013, the disciplinary proceeding commenced, and plaintiff was represented by counsel. The trial ended with plaintiff being found guilty of all charges. The Deputy Commissioner of Trials, Martin G. Karopkin, recommended plaintiff's dismissal but that it be held in abeyance at the discretion of the police commissioner. Police Commissioner Raymond Kelly declined the recommendation and offered plaintiff the opportunity to file for service retirement. Plaintiff rejected that offer and was terminated from her employment. Plaintiff appealed by Article 78 proceeding, in a decision dated June 11, 2015, the First Department dismissed the petition.
On April 11, 2014, plaintiff brought the present action by summons and verified complaint claiming race and gender discrimination, hostile work environment, and retaliation by defendants. The complaint alleges the defendants violated New York State Executive Law § 296, Unlawful discriminatory practices, and New York City Administrative Code § 8-101, Unlawful discriminatory practices.
Following motion practice, Defendants' answered on June 26, 2015. Depositions of the plaintiff, Downing, Biancaniello, and Echevarria were later held. The note of issue was filed on April 4, 2019. After entering into a stipulation extending time to do so, the present motion was filed.
Discussion
On a motion for summary judgment, the moving party has the initial burden of demonstrating its entitlement to judgment as a matter of law, by submitting evidentiary proof in admissible for sufficient to show the absence of any material facts (CPLR 3212; Alvarez v Propect Hospital, 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 [1986]; Johnson v The Dept. of Educ. of the City of New York [ Sup Ct 2016], affd sub nom. Johnson v Dept. of Educ. of City of New York, 2018 NYSlipOp 01179 [2d Dept 2018].
The evidence must be viewed in a light most favorable to the nonmoving party (Treminio v Argueta, 49 AD3d 862, 863 [2d Dept 2008]) and the motion must be denied if there is any doubt to the existence of a triable issue of fact (Alvord and Swift v Stewart M. Muller Const. Co., Inc ., 46 NY2d 276, 279 [1978]). The opposing party must show, however, the existence of a bona fide issue raised by evidentiary facts (Hersh v Busman, 80 AD2d 843, 843 [2d Dept 1981]). Mere conclusions, expressions of hope of unsubstantiated allegations are insufficient to raise a material question of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).
The Court of Appeals has stated that "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means" (Ferrante v Am. Lung Ass'n, 90 NY2d 623, 631 [1997]; citing 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 183 [1978]). However, upon a proper showing, summary judgment is "a highly useful device for expediting the just disposition of a legal dispute" (Ferrante, 90 NY2d at 631; citing Matter of Suffolk County Dept. of Social Servs. [Michael V.] v James M., 83 NY2d 178, 182 [1994]).
Defendants move for summary judgment arguing that there exists no genuine issue of material fact. The motion maintains that the facts presented in the complaint fail to show that: 1. any alleged of actions, aside from her termination, were materially adverse; 2. plaintiff was subjected to disparate treatment; 3. the alleged conduct was motivated by discriminatory animus; and 4. there was a causal connection between her presumed protected activity and the alleged adverse employment actions.
Plaintiff opposes, imputing improper racial and gender motives on the NYPD, defendants Downing, Biancaniello, and Echevarria. She argues that the record evidences her claims that she has been discriminated against for being a "black female." She alleges she was the only officer in the 108th Police Precinct assigned to foot posts, hospitalized prisoners posts, and dead on arrival assignments; that she was she was assigned on day tours, not allowed to write summonses or work a sector car to make arrests thereby curtailing equal employment opportunities and making her powerless to further her career. Plaintiff argues that her Caucasian male counterparts were given different posts, not harassed, or discriminated against. Plaintiff asserts that her assignments were in retaliation for having complained to labor relations, OEEO, and the deputy inspector. Ms. McDonald claims she was constantly separated from other officers and remained on standby; that Downings' actions of writing in her memo book constitute harassment; that Echevarria would routinely only pull black officers to do check points including police officers Dcir-Jean, Rowley, Gonzalez, Shan Inman, Ricky Smith and herself.
Plaintiff asserts that foot posts and solo patrols are undesirable and assignments for rookies. White males who had not lodge complaints of discrimination were not given such assignments.
i. Race & Gender Discrimination
A plaintiff alleging discrimination in violation of NYSHRL must establish that (1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Reichman v City of New York, 179 AD3d 1115, 1116-17 [2d Dept 2020]).
To prevail on a summary judgment motion in an action alleging discrimination in violation of NYSHRL, "a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a triable issue of fact as to whether the explanations were pretextual" (Reichman, 179 AD3d at 1116-17). "An adverse employment action requires a materially adverse change in the terms and conditions of employment" (Reichman, 179 AD3d at 1116-17 [2d Dept 2020]; Forrest, 3 NY3d at 306).
In order to prevail on a claim of discrimination under the NYCHRL, a plaintiff must prove that unlawful discrimination was one of the motivating factors of the complained-of conduct (Reichman, 179 AD3d 1115, 1117-18; Johnson v. Department of Educ. of City of N.Y., 158 AD3d 744, 746, 73 NYS3d 196 [2d Dept 2018]; Melman v. Montefiore Med. Ctr., 98 AD3d 107, 127, 946 NYS2d 27 [1st Dept 2012]).
A defense motion for summary judgment in an action alleging discrimination in violation of the NYCHRL must be analyzed under both the familiar framework of McDonnell Douglas Corp. v. Green, 411 US 792, 93 SCt 1817, 36 LEd2d 668 [1973] and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion (Sanderson-Burgess v. City of New York, 173 AD3d at 1235, 102 NYS3d 678 [2d Dept 2019]; quoting Persaud v. Walgreens Co., 161 AD3d 1019, 1020, 76 NYS3d 613 [2d Dept 2018]; see Hamburg v. New York Univ. Sch. of Medicine, 155 AD3d 66, 72-73, 62 NYS3d 26 [1st Dept 2017]).
"Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find the defendant[s] liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof" (Sanderson-Burgess, 173 AD3d at 1235, quoting Persaud, 161 AD3d at 1020).
Plaintiff maintains she established her prima facie claims in allegations regarding the disciplinary charges, minor violations, command disciplines, unaccompanied patrols, posts meant for rookies, and a curtailment of overtime opportunities in favor of Caucasian and or male officers.
Defendants' in turn have set forth through admissible evidence legitimate and nondiscriminatory reasons for their decisions to acts as they did namely:
Plaintiff was not promoted because as she admitted in her examination before trial, she took and failed the sergeant's exam. Passing the exam was required for her promotion.
Defendant's pointed out that plaintiff never alleged that she applied for overtime and was denied. Plaintiff was not denied overtime.
Plaintiff's claims that she received are "rookie or menial assignments" yet plaintiff also admitted in her examination before trial testimony that those assignments and posts are typical for all police officers.
With regard to the allegation that she was denied meal break on two occasions. Downing and Biancaniello stated that "sometimes officers missed meal breaks when the precinct was busy responding to jobs." Plaintiff's opposition did not deny, object to, nor address that assertion by defendants.
With regard to the disciplinary charges, minor violations and command disciplines the defendants proffered testimony addressing such actions were due to Plaintiff's violations of the NYPD the patrol guide. All charges were proferred with notice. Plaintiff does not dispute that but to the contrary asserts that it's a result of discriminatory animus. Plaintiff's disciplinary history of insubordination commenced several years prior to actions alleged in the complaint.
Plaintiff asserts that she was called to relieve Caucasian male officers on a few occasions but doesn't explain how this was favorable treatment. Plaintiff on many of the alleged incidents also failed to show the gender, race, and identity of the officers she alleges were given the favorable treatment and how they were similarly situated or with less "seniority." She asserts that there were other Caucasian male officers present who could have effected the arrests but at the same time claims that she has been denied opportunities to make more arrests.
Lastly, defendants' have established that plaintiff's termination was due to non-discriminatory reasons.
Regarding the NYSHRL discrimination of claims, Defendants have offered legitimate, nondiscriminatory reasons for the challenged actions, thereby establishing the absence of a triable issue of fact as to whether the explanations were pretextual. Regarding NYCHRL claims of discrimination, there is no proof that unlawful discrimination was one of the motivating factors of the complained-of conduct.
Accordingly, defendants are entitled to summary judgment dismissing plaintiff's discrimination-based employment claims.
ii. Hostile Work Environment
A plaintiff claiming a hostile work environment animated by discrimination in violation of the NYSHRL must show that the 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 (Forrest, 3 NY3d at 310). To determine whether a hostile work environment exists, a court must consider all 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 interfered with an employee's work performance (La Marca-Pagano v. Dr. Steven Phillips, P.C., 129 AD3d at 919-920, 12 NYS3d 192 [2d Dept 2015]).
Under the NYCHRL, a plaintiff claiming a hostile work environment need only demonstrate that he or she was treated "less well than other employees" because of the relevant characteristic (Torres v City of New York, 18 CIV. 3644 (LGS), 2019 WL 1765223, at 5 [SDNY 2019]; Nelson v HSBC Bank USA, 87 AD3d 995, 999 [2d Dept 2011]). The conduct alleged must, however, exceed "what a reasonable victim of discrimination would consider petty slights and trivial inconveniences" (Williams v. New York City Hous. Auth., 61 AD3d 62, 80, 872 NYS2d 27 [1st Dept 2009]), and "mere personality conflicts" will not suffice to establish a hostile work environment (Reichman, 179 AD3d at 1118; Forrest, 3 NY3d at 309).
Plaintiff complains of her assignments and posts beginning April 2011 through to about November 2012. Regarding the allegations on or about November 2012, Defendants responded by citing that several of those alleged assignments and posts were due to the hurricane Sandy storm response and that several officers from the same precinct were rotated to similar posts. Plaintiff does not deny or oppose this. Downing also explained that CRV posts are critical response posts which involves assignment to two officers to a specific critical response area, often in Manhattan. When issuing RMP posts, she explained, two officers would be generally assigned to a sector car answering 911 calls and officers assigned to "quality of life auto, would at times to out by themselves." Plaintiff also admitted in her examination before trial testimony that those alleged undesirable assignments including foot posts, being in the car, and hospital posts were typical posts for any police officer including rookie police officers.
Plaintiff alleges that defendants harassed her while she was on her posts. Downing testified at her examination before trial that as a Patrol Sergeant, it was her responsibility to visit officers assigned to her squad, confirm their presence at their posts and conducting their duties.
Plaintiff opposition does not address that branch of defendant's motion seeking dismissal of the hostile work environment claims and thereby failed to address the argument that there exists no trial issue of fact with regard to this branch of defendants' motion.
Regarding her NYSHRL hostile work environment claims, plaintiff has failed to show the defendants created an abusive working environment. Regarding her NYCHRL hostile work environment claims, trivial inconveniences and mere personality conflicts are not enough.
Accordingly, defendants are entitled to summary judgment dismissing plaintiff's hostile work environment claims.
iii. Retaliation
Turning to the plaintiff's causes of action alleging unlawful retaliation, a plaintiff alleging retaliation in violation of NYSHRL must show that (1) he or she engaged in a protected activity by opposing conduct prohibited thereunder; (2) the defendant was aware of that activity; (3) he or she suffered an adverse action based upon his or her activity; and (4) there was a causal connection between the protected activity and the adverse action (Reichman, 179 AD3d at 1119; Keceli v Yonkers Racing Corp., 155 AD3d 1014, 1016 [2d Dept 2017]; La Marca-Pagano, 129 AD3d at 920). "In the context of a case of unlawful retaliation, an adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination" (Keceli, 155 AD3d 1014, 1016). "The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm" (Burlington N. and Santa Fe Ry. Co. v White, 548 US 53, 67, 126 S Ct 2405, 2414, 165 L Ed 2d 345 [2006]).
"[T]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct" (Sanderson-Burgess, 173 AD3d at 1235-36; Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 740, 970 NYS2d 789 [2d Dept 2013]; Forrest, 3 NY3d at 298).
"To establish its entitlement to summary judgment in a retaliation case [under either NYSHRL or NYCHRL], a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual" (Reichman, 179 AD3d at 1119-20; Delrio v City of New York, 91 AD3d 900, 901 [2d Dept 2012]; Forrest, 3 NY3d at 305; Keceli., 155 AD3d at 1016; La Marca-Pagano, 129 AD3d at 920-921). Where a defendant produces "evidence that justifies [his or her] allegedly retaliatory conduct on permissible grounds ... [t]he plaintiff must either counter the defendant's evidence by producing evidence that the reasons put forth by the defendant were merely a pretext, or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by an impermissible motive" (Brightman, 108 AD3d at 741)
The plaintiff cannot show that she suffered an adverse employment action sufficient to support her claim for retaliation and merely pointing to the sequence in time of events is insufficient to establish a causal connection between the plaintiff's complaints of discrimination and any adverse employment action (Keceli, 155 AD3d 1016).
Defendants provided sufficient evidence through their depositions and documents that there existed substantial reason for their actions in issuing command disciplines, citing her for violations, and later terminating plaintiff's employment. Those actions include: violations of the patrol guide, included incidents of insubordination in her failure to follow procedure when she moved a prisoner without fingerprinting them after being told to do so, failure to respond to radio calls on more than one occasion and admitting to do so to avoid another assignment, changing a report after its submission, and menacing behavior towards defendant. Defendant's alleged actions of were legitimate, non-retaliatory reasons which was unrelated to plaintiff's participation in a protected activity.
Regarding the NYSHRL and NYCHRL retaliation claims, plaintiff has failed to raise a material issue of fact as to whether the proffered reasons were merely a pretext for retaliation.
Accordingly, defendants are entitled to summary judgment dismissing plaintiff's retaliation claims.
Conclusion
Defendants have met their evidentiary burden and shown entitlement to the extraordinary remedy of judgment as a matter of law. The motion for summary judgment is GRANTED in its entirety. Plaintiff's case is DISMISSED. The clerk may enter judgment accordingly.
The foregoing shall constitute the decision and order of this Court. Dated: May 1, 2020
Brooklyn, NY
/s/ _________
Hon. Rosemarie Montalbano
J. S. C.