time bank for being 50 minutes late to a bicycle tour assignment.
(Compl. ¶ 29, Ex. D; Nonnenmann Decl. ¶ 44) The fact that he
was notified of this rejection more than 90 days after it occurred, he
argues, prevented him from filing a grievance under the Sergeants'
Benevolent Association ("SBA") collective bargaining agreement and
ultimately cost him hours from his time bank. (Compl. ¶ 29, Ex. D;
Nonnenmann Decl. ¶ 44)
The only adverse consequence that Nonnenmann can point to as a result
of the NYPD's untimeliness is the loss of his right to file a grievance
contesting the charge, and it is unclear that he ever had this right in
the first place. As defendants point out, the SBA collective bargaining
agreement specifically states in its "definitions" section that "the term
`grievance' shall not include disciplinary matters." (Dantowitz Decl. of
10/30/00 ¶ 10, Ex. B at 21) The plain meaning of this text seems to
bar covered officers from bringing grievances related to disciplinary
matters. At the very least, this language indicates that plaintiff had
some recourse outside the conventional grievance procedure.
It is not uncommon for a collective bargaining agreement to exclude
disciplinary proceedings from a negotiated grievance procedure, and the
purpose of such provisions is often to permit article 78 litigation in
state court. See, e.g., Dombroski v. Bloom, 170 A.D.2d 805, 806-07,
565 N.Y.S.2d 907, 908 (3d Dep't 1991); City of Troy v. Troy Police
Benevolent and Protective Ass'n, 78 A.D.2d 925, 925-26, 433 N.Y.S.2d 632,
634 (3d Dep't 1980). In the absence of a collective bargaining agreement
to the contrary, "[an] employee's proper remedy for [a] claimed lack of
receipt of notice [is] through the statutory appellate process," namely,
"the express provisions of [New York State] Civil Service Law §§ 75
and 76[, which] limit the appealability of a final [municipal or state]
agency determination to an article 78 proceeding or an appeal to the
Civil Service Commission." City of New York v. MacDonald, 239 A.D.2d 274,
274-75, 657 N.Y.S.2d 681, 681 (1st Dep't 1997). Whatever the precise
meaning of the SBA collective bargaining agreement in this case, it seems
clear that the language of the agreement permits article 78 review. If
plaintiff felt he was wronged, he could have filed an article 78
proceeding in state court to protect his rights. Because he has chosen not
to pursue this course of action, plaintiff cannot now argue that the
untimely denial of his appeal was an "adverse employment action"
responsible for his loss of four hours from his time bank.*fn8
In addition to his Title VII claims, Nonnenmann asserts that the
retaliatory action that the NYPD took against him for his testimony in
Officer Breland's case violated his First Amendment rights. In order to
demonstrate a First Amendment violation, a government employee must show
that: "(1) his speech was constitutionally protected, (2) he suffered an
employment decision, and (3) a causal connection exists between his
speech and the adverse employment determination against him, so that it
can be said that his speech was a motivating factor in the
determination." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)
(citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
283-87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Once this showing is made,
"the interests of the [employee], as a citizen, in commenting upon
matters of public concern" must be balanced against "the interest of the
State, as an employer, in promoting the efficiency of the public services
it performs through its employees." Id. at 109-10 (quoting Pickering v.
Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).
In this case, because Nonnenmann's speech was insufficiently public to
constitute protected activity, no balancing is necessary and defendants'
motion for summary judgment is granted as to all First Amendment claims.
Nonnenmann asserts that his testimony on behalf of Officer Breland, in
which he "[brought] attention to authorities that a superior officer
ha[d] racial and gender prejudices which he expresse[d] to subordinates"
constitutes protected speech. (Nonnenmann Decl. ¶ 39) To be
protected from retaliation, an employee's speech must touch upon a matter
of public concern, rather than one of only personal or private interest.
See Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d
315 (1987); Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75
L.Ed.2d 708 (1983). Nonnenmann argues that race and gender discrimination
by supervising officers in the NYPD is a matter of great public concern
because supervisors train other police officers who, in turn, are
responsible for enforcing the public laws. (Nonnenmann Decl. ¶ 41)
In support of this proposition, plaintiff offers newspaper articles
illustrating the public attention focused on recent, high-profile race
and gender discrimination cases in the NYPD. (Id. Ex. L)
In determining when First Amendment protection attaches, the Second
Circuit has distinguished between "speech on matters of public concern
and an employee's essentially private complaint about working
conditions." Tiltti v. Weise, 155 F.3d 596, 603 (2d Cir. 1998); see Lewis
v. Cowen, 165 F.3d 154, 163-64 (2d Cir. 1999); Walker v. New York City
Transit Auth., No. 99 Civ. 3337, 2001 WL 1098022, at *12 (S.D.N.Y.
Sept.19, 2001). A "personal employment grievance" is different from a
statement "`protesting broad discriminatory policies or practices" or
"system-wide discrimination." Walker, 2001 WL 1098022, at *12 For this
reason, "courts in this Circuit have consistently held that `an EEOC
complaint based on race and sex discrimination is not a matter of public
concern, and therefore, is not protected speech under the First
Amendment.'" de Silva v. New York City Transit Auth., No. CV 96-2758,
1999 WL 1288683, at *17 (E.D.N.Y. Nov.17, 1999) (quoting Lehmuller v.
Incorporated Village of Sag Harbor, 944 F. Supp. 1087, 1095 (E.D.N.Y.
Although Nonnenmann's protected statements were made as part of an
individual complaint to the EEOC and NYPD's OEEO and as part of one
individual's lawsuit, his statements were made on behalf of a colleague,
and were not self-serving or related to his own personal grievance. This
case is different from one in which an employee has filed his or her own
EEOC complaint, see de Silva, 1999 WL at *17; Lehmuller, 944 F. Supp. at
1095, or in which an employee has brought complaints to a supervisor that
are "personal in nature and generally related to h[is] own situation,"
Walker, 2001 WL 1098022, at *12. At least one court has
held, in an analogous case, that testifying on behalf of a group of
plaintiffs and helping to defend them and to bring their sex
discrimination concerns before management was a matter of public
concern. See Marshall v. Allen, 984 F.2d 787, 795-96 (7th Cir. 1993). In
allowing a First Amendment claim, the Seventh Circuit noted that the
plaintiff had "no personal stake in the outcome of the [group's]
contentions," and was "not engaged in a mundane employment dispute," but
was rather acting "against" his personal interests in "protesting the
illegitimate policies of a government agency." Id. at 796.
In determining the scope of protected speech, I believe it is the scope
and nature of the employment dispute to which plaintiff's speech is
addressed, rather than the level of plaintiff's self-interest, that is
dispositive. Although Nonnenmann was not acting in his own self-interest
in testifying on behalf of Officer Breland, that does not change the fact
that he was participating in a particular dispute related to one employee
that cannot more broadly be considered a matter of public concern.
Although Sergeant Nonnenmann's testimony addressed serious and important
issues about the "racial and gender prejudices" of certain supervising
officers, his testimony was limited to the conduct of a few supervising
officers in Sergeant Breland's precinct, which is different from
"system-wide discrimination." Furthermore, in their settlement
agreements, both Officer Breland and Sergeant Nonnenmann settled for
money damages only; neither agreement provided for modification of the
NYPD's discriminatory policies or practices. See Saulpaugh v. Monroe
Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993) (rejecting a First
Amendment claim in which a female employee complained of sexual
harassment, but did not seek "relief against pervasive or systemic
misconduct" or make "an overall effort . . . to correct allegedly
unlawful practices or bring them to public attention" (internal quotation
marks omitted)). Under the circumstances in this case, Nonnenmann's
testimony on behalf of Officer Breland related to a private employment
dispute and did not involve a matter of public concern that warrants
First Amendment protection.
Nonnenmann argues also that the retaliatory actions taken by defendants
have violated his equal protection rights under the Fourteenth
Amendment. Without any supporting case law, he argues that because he
testified on behalf of a black female, Officer Breland, he is entitled to
the same equal protection rights as if he himself were a black woman.
This is plainly incorrect. Any discrimination against Nonnenmann
resulting from his testimony on behalf of a black, female officer, does
not constitute discrimination based on membership in a "suspect or
quasi-suspect group," such as "race, religion, nationality or gender."
Birmingham v. Ogden, 70 F. Supp.2d 353, 372 (S.D.N.Y. 1999). When a
plaintiff alleges a claim of race or gender discrimination, he must claim
that he was selectively treated because of his race or gender. See,
e.g., Nat'l Congress for Puerto Rican Rights v. City of New York,
75 F. Supp.2d 154, 167 (S.D.N.Y. 1999) ("In a race case . . . plaintiffs
must show that similarly situated individuals of a different race were
not subjected to the challenged conduct."). Nonnenmann has made no
allegation that he was treated differently because he is white or male.
of course, an employer is not free to retaliate at will against an
employee who testifies on behalf a victim who is a member of a protected
class. The explicit provisions of § 704(a) of Title VII clearly and
strictly prohibit such activity. 42 U.S.C. § 2000e-3(a) (1994). I
have already addressed plaintiff's Title VII retaliation claims above.
The Fourteenth Amendment itself, however, does not recognize a witness as
a member of a protected class, and for that reason defendants' motion for
summary judgment is granted as to plaintiff's Fourteenth Amendment
Finally, plaintiff argues that defendants have infringed his rights
under the Equal Pay Act. This claim is without merit and summary judgment
The Equal Pay Act reads in relevant part as follows: "No employer shall
discriminate between employees on the basis of sex by paying wages to
employees . . . at a rate less that the rate at which he pays wages to
employees of the opposite sex for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are
performed under similar working conditions. . . ." 29 U.S.C. § 206
(d)(1) (1994). The purpose of the act, as is evident from the language of
the statute, is to "prohibit employers from discriminating among
employees on the basis of sex by paying higher wages to employees of the
opposite sex for `equal work'" Ryduchowski v. Port Authority, 203 F.3d 135,
142 (2d Cir. 2000) (internal quotation marks omitted(1).
To make a claim under the Equal Pay Act, a plaintiff must show: "i) the
employer pays different wages to employees of the opposite sex; ii) the
employees perform equal work on jobs requiring equal skill, effort, and
responsibility; and iii) the jobs are performed under similar working
conditions." Id. (quoting Belfi v. Prendergast, 191 F.3d 129, 135 (2d
Cir. 1999)) (internal quotation marks omitted). Nonnenmann has
demonstrated none of these elements. In fact, in his pleadings he
undertakes no discussion at all of the relative salaries of men and women
in the NYPD, and he does not explain why he has included this claim in
his complaint. I agree with defendants that "the Equal Pay Act has no
bearing on this case whatsoever" (Defs.' Mem. of Law at 15), and
therefore grant summary judgment dismissing all plaintiff's Equal Pay Act
Nonnenmann's pre-spring 1999 claims are precluded either by his state
court settlement agreement or his untimely EEOC filings; summary judgment
is granted as to his post-spring 1999 claims, which are insufficient to
establish a Title VII adverse employment action. Summary judgment is also
granted on plaintiff's First Amendment claims because his speech did not
address a constitutionally protected issue of public concern.
Nonnenmann's Fourteenth Amendment and Equal Pay Act claims are without
merit and summary judgment on these claims is granted. Because no claims
remain, it is unnecessary to determine whether the NYPD is a proper
defendant in this action. In accordance with the above dispositions,
defendants' motion for summary judgment is granted.