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United States District Court, Southern District of New York

August 6, 2003


The opinion of the court was delivered by: Constance Motley, Senior District Judge


Plaintiff José DelaPaz brings this Title VII action against the New York City Police Department ("NYPD") alleging that he was subjected to a hostile work environment based on his national origin and that he suffered retaliation for filing a report with the internal Office of Equal Employment ("OEE"). Defendant NYPD has moved for summary judgment. For the reasons that follow, the Motion is granted.


Plaintiff DelaPaz began working for the New York City Transit Police Department in 1982. In 1991, he was promoted to the rank of Detective. In 1995, the Transit Police Department merged with the NYPD; plaintiff was transferred to the NYPD at that time. Two years later, plaintiff requested and was granted a transfer to the 107th Precinct in Queens from his previous assignment at the 66th Precinct in Brooklyn. [ Page 2]

Plaintiff alleges that he was subjected to a hostile work environment at the 107th Precinct, as manifested in the following ways: 1) two other detectives, William Robertson and John Reynolds, used the word "pineapple" in reference to him, a slur relating to his Filipino heritage, and several times referred to him as either "Filipino Joe" or "Joe Matterats"; 2) Detective Robertson asked him whether he had heard of the acronym "BFFM", which, according to Detective Robertson is an offensive Navy term used to refer to Filipino women;*fn2 and 3) that his superior, Sergeant Michael Breidenbach, assigned him extra, unnecessary work and, when plaintiff called in sick, sent an investigator to his home to check up on him.

Plaintiff complained to his Commanding Officer, Lieutenant Brian Coyne, and filed a report with the OEE, which investigated his charges and substantiated his accusations against Detectives Robertson and Reynolds but cleared Sergeant Breidenbach. Plaintiff claims to have suffered retaliation for filing this internal complaint and subsequently filed a complaint with the Equal Employment Opportunity Commission ("EEOC").


Summary judgment should only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). "[Genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted).

In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990). In this vein, the Second Circuit has noted that "conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). Of course, this standard applies with equal force in discrimination cases as it would in any other case in the federal courts. See Ashton v. Pall Corp., 32 F. Supp.2d 82, 87 (E.D.N.Y. 1999) ("the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation" (internal quotations and citation omitted)). Thus, courts within the Second Circuit "have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Scaria v. Rubin, 1996 U.S. Dist. LEXIS 9659, at *14 (S.D.N.Y. 1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir. 1997). [ Page 3]

In assessing the record to determine whether genuine issues of material fact are in dispute, courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). However, if the moving party meets its initial burden, the non-moving party may not rely on conclusory allegations or speculation to create factual disputes. Instead, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).


Defendant argues that this case should be dismissed because plaintiff has sued only the NYPD, an entity which is not capable of being sued. It is undoubtedly correct. Whether or not one may sue an agency in New York is determined by the laws of the State. See Fed.R.Civ.P. 17(b). The New York City Charter specifies that all "actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." New York City Charter, Chapter 16, § 396. Accordingly, plaintiff's claims against the single defendant in this case must be dismissed. See Gonzalez v. City of New York, 2002 WL 252564, at *2 (S.D.N.Y. Feb. 21, 2002); Davis v. City of New York, 2000 WL 1877045 (S.D.N.Y. Dec. 27, 2000); Sealey v. Fishkin. 1998 WL 1021470, at *2 (E.D.N.Y. Dec. 2, 1998); Bailey v. City of New York Police Dep't, 910 F. Supp. 116, 117 (E.D.N.Y. 1996); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992); East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992).

Plaintiff responds that because he was proceeding pro se when he filed his complaint with the EEOC, this court should read his federal Complaint liberally and conclude that he sued the City of New York in addition to the NYPD. Plaintiff cites no legal authority for such generous treatment; all the cases he does offer involve plaintiffs who were unrepresented in federal court, not merely in front of the EEOC. See, e.g., Johari v. City of Columbus Police Dep't, 186 F. Supp.2d 821, 825 (S.D. Ohio 2002) ("since pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings, the Court considers the merits of Johari's Complaint as if the City of Columbus had been named as a Defendant, rather than the City of Columbus Police Department" (citation omitted)). Plaintiff may be confused by the "identity of interest exception," wherein a plaintiff who was pro se at the time he filed his EEOC complaint may name parties in his federal Complaint who were not named in his EEOC charge (although plaintiff does not mention this exception or cite any related case law). See Johnson v. Palma 931 F.2d 203, 209 (2d Cir. 1991). Under this exception, plaintiff would likely have been allowed to name the City of New York in his federal Complaint, despite not having named it in his EEOC complaint. Neither plaintiff nor his attorneys thought to do so, and as that clause makes clear, plaintiff was represented by counsel when he filed the Complaint in this action. [ Page 4]

Ordinarily, under these circumstances, this court would dismiss the Complaint with leave to amend, see Brennan v. New York Police Dep't, 1997 WL 811543, at *3 (S.D.N.Y. May 27, 1997), but in this case, such an action would be futile since the Complaint is without merit. For that reason, the court will briefly address the substance of the Complaint as though it had named a proper defendant.

Plaintiff's claim of being subjected to a hostile work environment cannot survive scrutiny. First, the Second Circuit erected a remarkably high hurdle with respect to the level and frequency of offensive conduct that must be present in order to sustain such a claim. In Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002), the panel overturned, on the basis of insufficient evidence, a jury verdict in favor of a plaintiff claiming a hostile environment. Although the court acknowledged that on at least four occasions, Alfano's superior and/or coworkers had, both publicly and privately, ridiculed her with allusions to oral sex, the panel ruled that "the twelve incidents cited by Alfano [there were eight other incidents that related to her claim of disparate treatment], taken together, are insufficient as a matter of law to meet the threshold of severity or pervasiveness required for a hostile work environment." Id at 376. In light of the Circuit's ruling in Alfano, Detective DelaPaz's claim of a hostile work environment is fragile at best.

His claim crumbles, however, under the weight of the Second Circuit's interpretation of the second element of a hostile environment claim. In order to prove a claim of a hostile work environment, plaintiff must "establish (1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Richardson v. New York State Dept. of Correctional Service, 180 F.3d 426, 436 (2d Cir. 1999) (citations and internal quotes omitted). Plaintiff concedes that he availed himself of the OEE and that after his complaint was filed, Detectives Robertson and Reynolds were reprimanded and their offensive conduct toward him ceased. See Minniti Decl., Ex. B ("DelaPaz Deposition") at 132. The only conduct plaintiff complains of after the OEE findings was that committed by Sergeant Breidenbach, and his conduct is not relevant to this lawsuit since plaintiff cannot show he thought Breidenbach to be motivated by discriminatory animus. See Delapaz Deposition at 76.*fn3 Title VII, of course, prohibits only discrimination on the basis of race, color, religion, sex, or national origin, not general surliness or arbitrary pettiness. [ Page 5]

Richardson, 180 F.3d at 436 (citing 42 U.S.C. § 2000e-2(a)(1)). To the extent that the NYPD took appropriate remedial action, plaintiff cannot impute the hostile environment to it.

Plaintiff's claims of retaliation and disparate treatment must fail because he cannot show that he suffered an adverse employment action, an element of both claims. See, e.g., Richardson, 180 F.3d at 443 ("To establish a prima facie case of retaliation a plaintiff must show (1) participation in a protected activity that is known to the defendant, (2) an employment decision or action disadvantaging the plaintiff, and (3) a causal connection between the protected activity and the adverse decision" (citations omitted)); see also Alfano, 294 F.3d 373 ("A disparate treatment claim requires a showing of an adverse employment action . . ." (citation omitted)). An adverse employment action results in a "materially adverse change" in the terms or conditions of employment. Galabya v. New York City Board of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citing Richardson, 180 F.3d at 446). "`A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.'" Id. at 640 (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993) (alteration in original)).

Plaintiff's complaints that he was assigned extra work and subjected to an unwarranted at-home visit after he called in sick do not qualify as adverse employment actions. Indeed, the record demonstrates that plaintiff has retired from the NYPD pursuant to the "Heart Bill", N.Y. Gen. Mun. L. § 207-k (2003), which entitles him to three-quarters of his salary, tax-free, for the rest of his life. See Def.'s 56.1 Statement, ¶¶ 24, 25 (citing 26 U.S.C. § 104(a) (stating that workers' compensation payments are untaxed) and N.Y.C. Admin. Code §§ 13-252, 13-258 (defining disabilities that qualify employee for retirement with pay)).

For the foregoing reasons, defendant's Motion for Summary Judgment is granted and plaintiff's Complaint is dismissed in its entirety.


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