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NONNENMANN v. CITY OF NEW YORK
November 26, 2001
GREGORY J. NONNENMANN, PLAINTIFF,
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.
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.
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)
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 ...