administrative decision in Title VII action). To the extent
Plaintiffs Petry and Valle seek to challenge the facts and
circumstances surrounding their misconduct on the night of
December 12, 1992, they are collaterally estopped from so doing.
However, although misconduct has been established, this does
not prevent Petry and Valle from pursuing their Title VII or
Section 1983 claims. A finding of misconduct does not lead
inexorably to a finding of no race discrimination. See Hill v.
Coca Cola Bottling Co., 786 F.2d 550, 553-54 (2d Cir. 1986).
But see Gore v. R.H. Macy & Co., No. 86 Civ. 9684, 1989 WL
65561, at *3 (S.D.N.Y. June 13, 1989) (declining to give
preclusive effect to unreviewed administrative findings under
Section 1981 where finding of no misconduct "would mandate, as a
practical matter, a finding of race discrimination."). Further,
although the circumstances surrounding their terminations (namely
misconduct) have been fully litigated, Plaintiffs Petry and Valle
did not raise the issue of discrimination in the prior
proceedings. Therefore, there is no preclusive effect as to
discrimination because collateral estoppel does not prevent a
litigant from raising an issue in a later proceeding that he
could have but did not raise in the first proceeding. Leather v.
Ten Eyck, 180 F.3d 420, 426 (2d Cir. 1999).
2. Aguirre's Administrative Hearing
Plaintiff Aguirre, however, did not seek an Article 78
proceeding after his administrative determination. Accordingly,
Aguirre is entitled to de novo review of his Title VII
claim.*fn10 However, while the Court does not rely on any of the
facts found by the Hearing Board in deciding the instant motion,
it was nevertheless permissible for the New York State Police to
consider the hearing and findings in reaching its determination
to terminate Aguirre. See Raniola v. Bratton, 243 F.3d 610, 624
(2d Cir. 2001). Thus, the Court notes below further details
concerning Aguirre's administrative hearing for clarity of the
At Aguirre's administrative hearing, the Board of the New York
State Police found testimony proved that he engaged in violent,
tumultuous and disruptive behavior and he refused and failed to
cooperate with uniformed patrol officers and plainclothes
detectives of the Mount Vernon Police Department. See
Administrative Hearing at 11. The Board also considered a
detective's testimony that Aguirre took a swing at him with a
clenched fist. See Pl. Aguirre 56.1 Stmt. ¶ 147; Defs.' 56.1
Stmt. ¶ 147. Detectives as well as two supervisors of the Mount
Vernon Police testified to Trooper Aguirre's unruly, combative
and antagonistic behavior while in the station house including
threats of retribution. See Administrative Hearing at 11.
Sergeant Francine Moen testified that she was forcibly grabbed by
Aguirre, who made obscene and disparaging remarks to her. See
Pl. Aguirre 56.1 Stmt. ¶¶ 145-146; Defs.' 56.1 Stmt. ¶¶ 145-146.
Finally, Sergeant Robert Thoubboron testified that he ordered
Aguirre to calm down and stop his unruly behavior, but Aguirre
continued his actions, tried to leave the room and berated the
Sergeant. See Administrative Hearing
at 12. This led to Aguirre being placed in a holding cell because
of his actions and demeanor. See Id.
Although he had the opportunity to do so, Aguirre did not
testify or rebut any of the testimony against him. See Pl.
Aguirre 56.1 Stmt. ¶ 148; Defs.' 56.1 Stmt. ¶ 148. Given the
substantial misconduct presented by the evidence the Board
recommended Aguirre's termination. See Pl. Aguirre 56.1 Stmt. ¶
150; Defs.' 56.1 Stmt. ¶ 150.
In short, neither Petry nor Valle may raise questions of fact
concerning the incident at the bar or the police station house.
While Aguirre may relitigate the factual underpinnings of the
night in question, he has failed to raise serious issues of
fact.*fn11 Thus, while Plaintiffs may dispute the factual basis
for the instant motion, no genuine issues of material fact
preclude consideration of summary judgment.
B. Title VII and New York Human Rights Law Claims*fn12
Title VII of the Civil Rights Act of 1964 provides, in relevant
It shall be an unlawful employment practice for an
employer . . . to discriminate against any individual
with respect to his compensation, terms, conditions,
or privileges of employment, because of such
individual's race, color, religion, sex, or national
42 U.S.C. § 2000e-2(a).
A complainant in a Title VII action carries the initial burden
of establishing a prima facie case of discrimination by a
preponderance of the evidence. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d
105 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506,
113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). At the prima facie stage,
the burden of proof for an employment discrimination plaintiff is
de minimus. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37
(2d Cir. 1994).
In a case involving alleged discriminatory discharge, the
McDonnell Douglas three-step burden-shifting test requires the
plaintiff first establish a prima facie case of unlawful
discrimination by showing (1) he is a member of a protected group
(2) who performed his job satisfactorily (3) who was discharged
(4) under circumstances giving rise to an inference of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
801, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Stratton v.
Department for Aging for New York City, 132 F.3d 869, 879 (2d
These elements are not intended to become rigid or mechanical,
but rather "to promote the general principle that a Title VII
plaintiff must carry the initial burden of offering evidence
adequate to `raise an inference of discrimination.'" Meiri v.
Dacon, 759 F.2d 989, 996 (2d Cir. 1985) (alteration in original)
(quoting Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98
S.Ct. 2943, 57 L.Ed.2d 957 (1978)).
When a plaintiff can demonstrate these elements, a presumption of
unlawful discrimination is created. Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001).
The burden then shifts to the defendant to "`articulate some
legitimate, nondiscriminatory reason'" for the adverse employment
action visited upon the plaintiff. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp., 411 U.S.
at 802, 93 S.Ct. 1817). If the employer offers, via admissible
evidence, a justification of its action which, if believed by a
reasonable trier of fact, would allow a finding of no unlawful
discrimination, then "`the McDonnell Douglas framework — with
its presumptions and burdens — disappears, and the sole remaining
issue is discrimination vel non.'" Byrnie, 243 F.3d at 102
(quoting Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097) (citations
and additional quotations omitted).
Where the defendant has offered a legitimate nondiscriminatory
reason for an adverse employment action, the plaintiff must
present "sufficient evidence [for the fact-finder] to find that
the employer's asserted justification is false [and] to conclude
that the employer unlawfully discriminated." Reeves, 530 U.S.
at 148, 120 S.Ct. 2097. When a plaintiff alleges disparate
treatment, "liability depends on whether the protected trait
actually motivated the employer's decision." Reeves, 530 U.S.
at 141, 120 S.Ct. 2097 (quoting Hazen Paper Co. v. Biggins,
507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). Thus, a
plaintiff must be afforded "the opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons but were a pretext for
discrimination." Reeves, 530 U.S. at 143, 120 S.Ct. 2097
(quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089).
However, while it is "permissible for the trier of fact to
infer the ultimate fact of discrimination from the falsity of the
employer's explanation," Reeves, 530 U.S. at 147, 120 S.Ct.
2097, evidence that establishes a prima facie case and pretext
"will [not] always be adequate," Id. at 148, 120 S.Ct. 2097.
Whether summary judgment is appropriate in a particular case
depends upon "the strength of the plaintiff's prima facie case,
the probative value of the proof that the employer's explanation
is false, and any other evidence that supports the employer's
case and that properly may be considered."*fn13 Reeves, 530
U.S. at 148-49, 120 S.Ct. 2097; see also Schnabel v. Abramson,
232 F.3d 83, 90 (2d Cir. 2000) (holding that "Reeves clearly
mandates a case-by-case approach, with a court examining the
entire record to determine whether the plaintiff could satisfy
his `ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff.'")
(quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097).
Thus, where a plaintiff establishes a prima facie case and
presents some evidence of pretext, summary judgment is still
appropriate where, for instance, "the record conclusively
reveal[s]" a nondiscriminatory reason for the employer's action,
or where the plaintiff "create[s] only a weak issue of fact" on
the issue of pretext and there exists "abundant and
uncontroverted independent evidence that no discrimination [has]
occurred." Schnabel, 232 F.3d at 90 (quoting Reeves, 530 U.S.
at 148, 120 S.Ct.
2097). Summary judgment is also appropriate when the plaintiff
can supply no evidence that his employer's justification was a
pretext. Smith v. American Exp. Co., 853 F.2d 151, 154 (2d Cir.
1. Plaintiffs' Prima Facie Case
There is no dispute as to elements (1) and (3) of the prima
facie case: Plaintiffs, as Hispanics, are members of a protected
group and they were dismissed from their positions as state
troopers. The dispute arises under element two, whether
Plaintiffs performed their jobs satisfactorily, and element four,
whether their discharge took place under circumstances giving
rise to an inference of discrimination.
a. Satisfactory performance
For the satisfactory performance prong of the prima facie case,
Plaintiffs "need not demonstrate that [their] performance is
flawless or superior, but rather only that [they] `possess the
basic skills necessary for performance of the job.'" de la Cruz
v. New York City Human Resources Admin. Dep't of Soc. Servs.,
82 F.3d 16, 20 (2d Cir. 1996) (quoting Powell v. Syracuse Univ.,
580 F.2d 1150, 1155 (2d Cir. 1978)). Further, the findings of
misconduct, on December 12, 1992, do not preclude Plaintiffs from
demonstrating they were qualified for their jobs. In Owens v.
New York City Hous. Authority, the Second Circuit had no doubt
that misconduct may certainly provide a legitimate and
nondiscriminatory reason to terminate an employee. 934 F.2d 405,
409 (2d Cir. 1991). Misconduct is distinct, however, from the
issue of minimal qualification to perform a job. Id. An
individual may well have the ability to perform job duties, even
if her conduct on the job is inappropriate or offensive. Id.
Accordingly, the findings of misconduct here cannot preclude
Plaintiffs from showing their qualification for employment.
Defendants rely on numerous instances of unsatisfactory job
performance by Plaintiffs. Plaintiffs counter that, nonetheless,
they were qualified for their respective positions. Plaintiffs
argue that the sole stated basis of their discharges was the
incident at the bar, and therefore Defendants' reliance on the
Plaintiffs' alleged questionable work history creates an issue of
fact, the resolution of which is inappropriate at this time.
Defendants' evidence of Plaintiffs' work history, including
numerous letters of censure and probation notifications prove
only that Plaintiffs performed their jobs on occasion to
less-than-complete satisfaction of their employer. The evidence
does not indicate, however, that they lacked the basic skills
necessary to work as troopers. Indeed Plaintiffs worked as
troopers for six to thirteen years before the incident in
question. Defendants' argument that Plaintiffs were not qualified
fails considering Plaintiffs' long record of employment with the
New York State Police. See Gregory v. Daly, 243 F.3d 687, 696
(2d Cir. 2001) (finding when an employer has retained the
plaintiff for a significant period of time the strength of the
inference that she possesses the basic skills required for her
job is heightened). In light of the de minimus standard,
Plaintiffs have sufficiently demonstrated satisfactory
b. Inference of Discrimination
"A plaintiff may support an inference of race discrimination by
demonstrating that similarly situated employees of a different
race were treated more favorably." Norville v. Staten Island
Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (citing Shumway,
118 F.3d 60, 63 (2d Cir. 1997)). See also Abdu-Brisson v. Delta
Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (noting
that a showing of disparate treatment "while a common and
especially effective method of establishing the inference of
discriminatory intent" is not the only method of discharging the
plaintiff's burden). Because an employer who discriminates is
unlikely to leave a "smoking gun" attesting to a discriminatory
intent, a victim of discrimination is seldom able to prove his
claim by direct evidence, and is usually constrained to rely on
circumstantial evidence. Chambers, 43 F.3d at 37.
Plaintiffs assert that similarly situated white officers who
engaged in misconduct were not terminated and received less
severe punishment. In order to raise an inference of
discrimination under their disparate treatment theory, Plaintiffs
must establish that they were treated differently from
non-Hispanic officers who were "similarly situated in all
material respects". Norville, 196 F.3d at 96 (citing Shumway,
118 F.3d at 64). More specifically, the employees must have been
subject to the same standards governing performance evaluation
and discipline and must have engaged in conduct similar to
Plaintiffs. Norville, 196 F.3d at 96.
Plaintiffs attempt to satisfy this standard by claiming that
they were treated less favorably than five white officers who
received lesser punishment for allegedly comparable misconduct.
Specifically, Plaintiffs allege the following facts:
In 1990, an investigator for the New York State
Police, received tickets for driving while
intoxicated, leaving the scene of an accident and
driving the wrong way on a one way road while in his
trooper car. See Pl. Petry 56.1 Counterstatement ¶
28. He later pled guilty to driving while ability
impaired and was fined and given a conditional
discharge. Id. ¶ 29. The investigator received a
letter of censure, suspension without pay for ten
days and thirty days probation. Id. ¶ 37.
In 1987, a New York State Trooper, received a
letter of censure for threatening a friend in a
public restaurant with his firearm while under the
influence of alcohol while off duty. See Pl. Petry
56.1 Counterstatement ¶ 9. As a penalty, he received
six months probation and suspension without pay.
Id. ¶ 21.
In 1986, a Trooper punched and struck a civilian in
the face, causing her physical injury. See Pl.
Petry 56.1 Counterstatement ¶ 39. Shortly thereafter,
he fired four shots toward a lake with a 9mm
automatic weapon. Id. ¶ 43. Formal disciplinary
charges were brought against the Trooper for engaging
in misconduct that brought discredit upon the New
York State Police. Id. ¶ 46. The Division of State
Police settled and resolved the charges by imposing a
letter of censure, suspension without pay for thirty
days and probation for six months. Id. ¶ 47.
In 1986, another New York State Trooper faced
charges of assault and reckless endangerment after
allegedly spitting on a civilian and physically
dragging her. See Pl. Petry 56.1 Counterstatement ¶
49. He was also found to have exploded fireworks
without a permit. Id. ¶ 54. Division of State
Police hearing charges were settled and he received a
letter of censure, thirty-day suspension without pay
and six months probation. Id. ¶ 55. He also pled
guilty to harassment and disorderly conduct and was
fined $100,000. Id. ¶ 56.
In 1984, another investigator faced four charges
ranging from menacing to negligent use of a firearm
after a physical confrontation with a restaurant
proprietor when he drew his pistol and threatened to
"blow him away" if he did not cooperate in answering
See Pl. Petry 56.1 Counterstatement ¶¶ 1-2. He pled
guilty to two of four charges and received six months
probation with an order for alcohol abuse treatment.
Id. ¶¶ 6-7.
Plaintiffs have sufficiently established that the above white
officers were similarly situated in terms of performance
evaluation and discipline since many of the officers violated
comparable regulations and underwent similar disciplinary
proceedings as Plaintiffs. However, Plaintiffs have not shown
that the officers engaged in conduct similar to their own. See
Norville, 196 F.3d at 96. In the prior administrative and
judicial proceedings, Plaintiffs were found to have:
engaged in a scuffle in a public place with uniformed
police officers; punched a uniformed officer in the
face; shouted obscenities and foul language to
uniformed officers; jumped on the back of a uniformed
police officer, preventing him from handcuffing one
of the Plaintiffs; engaged in violent and combative
behavior with each other while at Police
Headquarters, including wrestling and headbutting;
kicked a three-inch hole in the wall of a local
police supervisor's office; made threats to uniformed
police officers of unwarranted tickets to be issued
against them; attempted to leave a holding cell;
grabbed the arm of a female sergeant at local police
headquarters while making obscene and sexist remarks.
See Lopez, 639 N.Y.S.2d at 159; Petry,
621 N.Y.S.2d 131; and Pl. Aguirre 56.1 Stmt. ¶¶ 145-146.
These circumstances are not similar to that of the white
officers presented by the Plaintiffs. None of the white officers
engaged in a violent altercation with local uniformed police in a
public place; were alleged to have directed obscene, sexist or
foul language to other local uniformed police; threatened the
misuse of power against local police; nor engaged in violent,
tumultuous or combative behavior in a police stationhouse. While
each of the white officers noted above may have brought discredit
to the New York State Police, none of them created a comparable
level of friction between state troopers and a local police