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NONNENMANN v. CITY OF NEW YORK

November 26, 2001

GREGORY J. NONNENMANN, PLAINTIFF,
V.
THE CITY OF NEW YORK, RUDOLF GIULIANI, MAYOR OF THE CITY OF NEW YORK, HOWARD SAFIR, POLICE COMMISSIONER OF THE CITY OF NEW YORK, CHIEF MICHAEL MARKMAN, NYC POLICE DEPARTMENT AND JOHN DOES, DEFENDANTS



The opinion of the court was delivered by: Mukasey, District Judge.

      OPINION AND ORDER

Plaintiff Gregory J. Nonnenmann sues defendants the City of New York, the New York Police Department ("NYPD"), and several named and unnamed municipal officials,*fn1 alleging unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, the First and Fourteenth Amendments, and the Equal Pay Act. Defendants move to dismiss all claims. In accordance with an earlier order of this court, Nonnenmann v. City of New York, No. 00 Civ. 4139 (S.D.N.Y. Mar. 22, 2001), this motion will be considered as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted as to all claims.

I.

The following facts are either undisputed or presented in the light most favorable to plaintiff. In October of 1991, plaintiff Gregory J. Nonnenmann, a white, male officer in the NYPD and a practicing attorney, offered support to Elisa Breland, a female, African-American officer who had complained of race and gender discrimination in the NYPD. (Compl. ¶ 7) With the help of Nonnenmann's testimony, Officer Breland filed claims with both the NYPD's Office of Equal Employment Opportunity ("OEEO") and, in May of 1992, with the federal Equal Employment Opportunity Commission ("EEOC"). (Dantowitz Decl. of 9/21/00 Ex. A ¶¶ 35, 41) On May 13, 1993, she filed suit in federal court against the City of New York, the NYPD, and several other named defendants. (Compl. ¶ 10) The case was settled in May 1995 for $145,000. (Id.)

Displeased with Nonnenmann's efforts to assist Officer Breland, the NYPD began in 1991 to engage in unlawful retaliatory actions. (Compl. ¶ 8) In a complaint filed on January 6, 1993 in New York Supreme Court, King's County, Nonnenmann alleged that the City of New York, the NYPD, and others had defamed his reputation and violated numerous provisions of the New York Civil Rights Law and Executive Law. (Dantowitz Decl. of 9/21/00 Ex. A) Among the incidents about which Nonnenmann complained were the following: 1) slanderous statements about his arrest patterns (id. ¶ 8); 2) low job-performance ratings because of false and defamatory allegations and denial of his appeal of those ratings (id. ¶¶ 15, 18, 46); 3) pretextual disciplinary charges for failure to supervise, investigate, and keep proper records, as well as for the unauthorized use of a department vehicle (id. ¶¶ 20, 22-35, 38); 4) denial of his grievances and requests for a career path transfer (id. ¶¶ 44-45, 47); and 5) improper release of information from his personnel file (id. ¶ 59). In May of 1999, Nonnenmann and the named defendants settled the case for $90,0000. (Compl. ¶ 9) The settlement terms were embodied in a "Stipulation of Settlement and Discontinuance" executed on April 26, 1999 (Dantowitz Decl. of 9/21/00 Ex. B) and a "General Release" that Nonnenmann signed on May 4, 1999 (id. Ex. C).

Nonnenmann's state court complaint encompassed only incidents up to January 6, 1993. (Dantowitz Decl. of 9/21/00 Ex. A) Although Nonnenmann moved in October 1998 to amend his complaint to include incidents that occurred after 1993, the court denied the motion. (Defs.' Reply Mem. of Law at 4) In his complaint in this court, Nonnenmann requests monetary relief for similar retaliatory measures undertaken between January 6, 1993 and May 2, 2000, allegedly in violation of Title VII, the First and Fourteenth Amendments, and the Equal Pay Act. (Compl. ¶ 1)

The specific incidents that Nonnenmann describes in the present action are distinct from those in his state court complaint, but they are similar in nature: 1) in 1993 and 1994, he was denied requests to meet with the mayor and police commissioner "to discuss retaliation and discrimination in the workplace" (id. ¶ 18); 2) on August 26, 1993, he was disciplined for failing to respond to a 10-13 officer-in-need-of-assistance call (id. ¶ 19); 3) on May 5, 1994, he was docked five days pay for unauthorized use of a police vehicle (id. ¶ 20); 4) on June 24, 1994, he was disciplined for spending his tour of duty at the office of the Corporation Counsel conducting personal business — attending depositions that were purposely scheduled to inconvenience him (id. ¶¶ 21-22); 5) from 1992 to 1996, all of his requests to transfer out of the 75th Precinct were denied (id. ¶ 28); 6) on September 26, 1997, he was disciplined for being 50 minutes late for work (id. ¶ 23); 7) on January 13, 1998, he was improperly questioned about his lawsuit during a meeting of the promotional review board (id. ¶ 24); 8) from January 13, 1998 to July 1998, he was turned down twice for the position of lieutenant (id. ¶ 25); 9) from August 20, 1998 to the present, he has been denied a transfer from the 28th Precinct to a more convenient one in Queens (id. ¶ 27); and 10) on March 8, 2000, he was given late notice that his appeal of a disciplinary action was rejected, and the delay prevented him from filing a timely grievance under the collective bargaining agreement (id. ¶ 29).

Defendants have moved to dismiss all of Nonnenmann' s claims. First, they argue that Nonnenmann's claims that arose prior to May 4, 1999 are barred by the state court release he executed on that date. (Defs.' Mem. of Law at 5-6) Alternatively, they argue that plaintiff's Title VII claims occurring prior to March 25, 1999 are time-barred because of plaintiff's failure to file an EEOC charge within 300 days of the relevant incidents. (Id. at 7 n. 2) If either assertion is correct, then none of plaintiff's Title VII allegations can be considered except for: 1) any denials of Nonnenmann's transfer requests that occurred after the spring of 1999; and 2) the NYPD's untimely March 8 2000 notice to Nonnenmann that his appeal had been denied. (Id. at 6)

As for these two remaining incidents, defendants maintain that they do not make out a prima facie case of retaliation under Title VII. (Id. at 7-11) Defendants also argue that Nonnenmann has no First Amendment claim because he has not spoken on "a matter of public welfare" (id. at 11-13), nor any Fourteenth Amendment equal protection claim because he is not a member of any protected class (id. at 13-14), nor any Equal Pay Act claim because there is no allegation that he has been underpaid relative to female workers (id. at 15-16). To the extent that any of plaintiff's claims remain, defendants maintain that the NYPD is not a proper defendant. (Id. at 16)

II.

First, I examine Nonnenmann s Title VII retaliation claims. Before I evaluate whether he has made a prima facie case, I must determine which incidents I may consider, and which are barred from consideration either by the settlement agreement or by the nature and timing of plaintiff's EEOC filings. For the reasons explained below, I conclude that plaintiff's Title VII claims arising prior to the spring of 1999 are barred either by the settlement agreement or by plaintiff's EEOC filings. I further conclude that the claims that remain fail to make out a prima facie case.

A. Which Incidents Can Be Considered?

1. The Settlement Agreement. — The relevant language of the April 26, 1999 "Stipulation of Settlement and Discontinuance" that terminated Nonnenmann's 1993 state court complaint reads as follows:

Plaintiff Gregory J. Nonnenmann agrees to a dismissal of all the claims from any and all liability, claims, or rights of action which the Plaintiff now has, may heretofore have had, or hereafter may have, in any manner, arising out of or related to the transaction and occurrences alleged in the Complaint, or that could have been alleged in the Complaint in connection with those transactions and occurrences, including claims for costs, expenses and attorney fees.
I, Gregory J. Nonnenmann . . . do hereby release and discharge the Defendants . . . from any and all claims which were or could have been alleged by me in the [state court] action arising out of the events alleged in the Complaint in said ...

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