United States District Court, S.D. New York
February 20, 2004.
RANDALL KNIGHT, Plaintiff, -against- CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, CAPT. GLEN D'OTTAVIO (individually and in his official capacity), CAPT. CHARLES STRAVALLE (individually and in his official capacity), LT CHRISTOPHER DENNIS (individually and in his official capacity), LT THOMAS COMMINS (individually and in his official capacity), LT GREGORY MANGINI, (individually and in his official capacity), ROBERT OLDHAM (individually and in his official capacity), SGT. JAMES CAVUTO (individually and in his official capacity), SGT. WILLIAM ROSTKOWSKI (individually and in his official capacity), Defendants
The opinion of the court was delivered by: DENNY CHIN, District Judge
In this civil rights case, plaintiff Randall Knight, a Police Officer
in the New York City Police Department (the "NYPD"), alleges that his
employer and supervisors unlawfully
retaliated against him for filing a sexual harassment complaint against a
coworker with the NYPD's Office of Equal Employment Opportunity
("OEEO"). The alleged retaliation took the form of negative performance
evaluations, unwarranted or excessive disciplinary action, and excessive
monitoring during his scheduled tour of duty. Defendants, the City of New
York, the NYPD, Captain Glen D'Ottavio, Captain Charles Stravalle,
Lieutenant Christopher Dennis, Lieutenant Thomas Commins, Lieutenant
Gregory Mangini, Lieutenant Robert Oldham, Sergeant James Cavuto, and
Sergeant William Rostkowski, (collectively "defendants"), move for
summary judgment pursuant to Fed.R.Civ.P. 56.
Defendants present substantial evidence that the disciplinary actions
against Knight and the subpar performance evaluations he received in the
years following his OEEO complaint were either too minor to support a
retaliation claim, or for legitimate, non-retaliatory reasons. Knight has
failed to respond with sufficient evidence to generate an issue of
material fact for trial. Accordingly, and for the reasons set forth
below, defendants' motion for summary judgment is granted and the
complaint is dismissed.
STATEMENT OF THE CASE
I. The Facts
The undisputed facts are as follows:
A. Plaintiff's Unit
Knight has been a NYPD Police Officer since 1984. (Plt. Dep. at 11). In
September 1997, Knight transferred to the NYPD's Applicant Processing
Division ("APD"). (Id. at 12). APD interviews and conducts background
checks on applicants for positions as police officers, school safety
agents, traffic enforcement agents, and Department of Environmental
Protection officers. (Id. at 72). Each APD investigator evaluates the
candidates assigned to him or her and creates a case review sheet
reflecting initial interviews and a background check of the candidate.
(Id.). Investigators then submit their case review sheets to their
supervisor for approval. (Dennis Dep. at 18).
B. The Harassment Complaint
In January 1999, Knight notified Sgt. John Costello that he was being
sexually harassed by an APD civilian investigator, Brenda Idris. (Plt.
Dep. at 496). Costello immediately referred Knight's complaint to the
OEEO, but Knight subsequently elected to have APD investigate the
complaint under OEEO oversight. (D'Ottavio Dep. at 17). In March 1999,
while the outcome of the investigation was pending, APD transferred Idris
to a different floor of the APD office after Knight complained that she
continued to harass him. (Plt. Dep. at 493-94).
To avoid further interaction and conflict, neither Knight nor Idris was
permitted on the floor where the other worked without permission and an
escort. (Id. at 480, 479-80, 487; Rostkowski Dep. at 25). Knight was never
denied permission to go to Idris's floor. (Plt. Dep. at 484-85).
On September 17, 1999, the OEEO notified Knight by letter that his
complaint against Idris was substantiated. (Id. at 491). Once the Police
Commissioner's Office had approved discipline for Idris, she was
transferred to the APD's Brooklyn office in December 1999. (Id. at 482;
Friedman Decl. Exh. G). Knight was thereafter permitted to go to all
floors of his building without permission or an escort. (Plt. Dep. at
C. Knight's Performance Evaluations Following the Harassment Complaint
Because of several OEEO complaints and low productivity at the Brooklyn
office, in March 1999 three supervisors from the Queens APD office were
transferred to the APD's Brooklyn office, and three supervisors were
transferred from Brooklyn to Queens. (Dennis Dep. at 13; Plt. Dep at 93,
508-09). Sgt. Mary Dumphrey became Knight's squad sergeant and immediate
supervisor. (Rostkowski Dep. at 18). In July 1999 Rostkowski was
transferred to the Queens office and replaced Dumphrey as Knight's
supervisor. (Id. at 10).
Problems between Knight and Rostkowski soon developed. According to
Rostkowski, Knight ignored his instructions on completing certain tasks
and disregarded deadlines. (Id. at 56-57).
Rostkowski also noticed that frequently Knight submitted case review
sheets with missing information and that his work required corrections
significantly more often than the other investigators Rostkowski
supervised. (Id. at 21; Commins Dep. at 135, 138). For example, one of the
first case review sheets Knight submitted to Rostkowski contained a major
error that nearly resulted in the mistaken hiring of a candidate.
(Rostkowski Dep. at 22).
1. The 1999 Evaluation
In or about March 2000, Rostkowski met with Knight to give him a formal
performance evaluation for 1999. (Id. at 30, 57-8; Plt. Dep at 348-49).
Rostkowski rated Knight "below competent." (Friedman Decl. Exh. J). The
1999 evaluation reflected Sgt. Rostkowski's belief that Knight had "the
potential of being a competent investigator," but that Knight's casework
was "never neatly prepared" and was "usually missing pertinent
information." (Id.). The evaluation also reflected his intention to
increase monitoring Knight for performance reasons. (Id.). Knight
declined his option to appeal the 1999 evaluation. (Plt. Dep. at 358;
Friedman Decl., Exh. J).
2. The 2000 Evaluation
In April 2001, Rostkowski met with Knight to discuss Knight's annual
performance for 2000. (Plt. Dep. at 389-90; Friedman Decl. Exh. K(1)).
Rostkowski showed Knight a draft review sheet that again rated Knight
"below competent" for the year. The evaluation reflected Rostkowski's
belief that Knight's
performance in investigating and completing his cases suffered due to
Knight's failure to "put forth enough time or effort into his
investigations." (Friedman Decl. Exh. K(1)). Although Knight's
performance in 2000 had improved from the previous year, Knight's "work
[was] not the caliber of a veteran investigator." (Id.). Knight refused
to sign the evaluation because he disagreed with Rostkowski's use of
definitive terms such as "always" and "never" when describing the
negative aspects of his performance. (Plt. Dep. at 392).
D. Knight Appeals the 2000 Evaluation and is Assigned a Different
Knight advised Rostkowski that he would appeal the evaluation and asked
for a transfer from Rostkowski's squad. (Id. at 396-97, 401). Several
days later, Knight submitted a memorandum stating the reasons for his
appeal. The memorandum concluded with Knight's opinion that the negative
emphasis in the evaluation indicates "that it is based on a personal and
not a Supervisor/Employee level as required by guidelines." (Friedman
Decl. Exh. Q(2)).
After submitting the appeal memorandum, Knight met with Captain
Stravalle and Lieutenant Commins about the evaluation. (Plt. Dep. at
441). Stravalle read to Knight from a list of incidents concerning Knight
over the prior two years. (Id. at 406). The list's entries documented
instances of Knight submitting case review sheets with numerous
discrepancies and errors, Knight's name being entered on the minor
for failing to wear a tie after being instructed twice, and numerous
instances of Knight failing to sign in and out for duty properly.
(Friedman Decl. Ex. P). After giving Knight a copy of the list, Stravalle
advised him that he would be transferred out of Rostkowski's squad as he
had requested, and that his new supervisor would evaluate him after a
three-month interim period. (Plt. Dep. at 406).
As a result of the appeal, Rostkowski revised the evaluation to reflect
that Knight's work is "usually sloppily prepared" instead of "is always
sloppily prepared." (Friedman Decl. Exh. K(2)).
1. Knight's Job Performance Under the New Supervisor
In May 2001, Sgt. Mary Elizabeth Tria assumed direct supervisory
responsibility over Knight. (Tria Decl. ¶ 2). At Stravalle's request,
Tria kept notes to document both positive and negative aspects of
Knight's performance. (Id. ¶ 3). During the interim period, Tria
documented 16 unsatisfactory performance incidents by Knight. (Id. ¶
For example, on May 24, 2001, Knight submitted a case review sheet that
was missing the candidate's employment verification. Knight had been
instructed three times to correct the problem and lied to Rostkowski
about the status of the case, saying that Tria had signed off on it when
she had not. (Id. ¶ 5). On several occasions, Knight incorrectly
calculated a candidate's age. (E.g., id. ¶ 6). On one occasion the
miscalculation disqualified an otherwise eligible candidate.
(Id. ¶ 9). Tria also documented several instances in which Knight
changed his own tour of duty without authorization, or simply showed up
to work late. (Id. ¶ 10).
The positive incidents Tria documented during the interim period
concerned Knight cleaning an office refrigerator, his submission of a
list of outstanding cases in a timely manner, and his occasional
compliance with the requirement that he request tour changes in advance.
(Id. ¶ 12).
2. The Interim Evaluation
In August 2001, Tria gave Knight an evaluation for the interim period
rating him "below competent." (Friedman Decl., Exh. L(2)). On the
evaluation, Tria wrote that Knight's work "usually needs correcting or
clarifying," and that Knight was "somewhat lax in performing the duties,
tasks and functions of an experienced investigator." (Id.; Plt. Dep. at
Prior to preparing the evaluation, Tria was told by Commins that if she
did not give Knight a negative evaluation, "it would make [Rostkowski]
look foolish." (Tria Dep. at 54). Commins also told her, "it is your
evaluation . . . you do what you want." (Id.).
3. Knight's Evaluations Improve
In January 2002, Tria evaluated Knight's performance for 2001 and gave
him a rating of "above competent." The evaluation reflected Tria's belief
that Knight's case management skills had improved and that he had
"developed a more positive
attitude towards his work, peers and supervisors." (Friedman Decl.
In January 2003, Tria evaluated Knight's performance for 2002 and rated
him as "competent." (Friedman Decl. Exh. N).
E. Knight's Disciplinary Record for NYPD Patrol Guide Violations
Knight was cited repeatedly before and after his harassment complaint
for minor rule violations and was disciplined for more significant
violations of NYPD rules on several occasions following his harassment
1. Minor Violations
i. Entries on Minor Violations Log
In 1999, Knight was entered in the minor violations log on three
separate occasions. On August 3 and November 3, 1999, Knight was cited
for failure to wear a tie and for "improper business attire." (Plt. Dep.
at 171, 173). On November 8, 1999, Knight was entered into the minor
violations log for "improperly answering a Department telephone."
In 2000, Knight received two minor violations. The first violation
occurred on January 11, for "failing to wear a tie after previously being
instructed to do so." (Friedman Decl. Exh. P). Knight does not recall the
January 11 violation, but acknowledged that he was spoken to on numerous
occasions for failing to wear a tie. (Plt. Dep. at 125, 356, 417). On
March 13, 2000, Knight was cited for "being off post and in the lounge."
(Friedman Decl. Exh. P).
ii. Knight Signed in Late for Duty
Police officers in APD are required to sign a movement log at the start
of their scheduled tour of duty, at the end of their tour, and whenever
they leave for a meal or break. (Plt. Dep. at 102-02; Cavuto Dep. at
52-3). In March 1999, on Sgt. Buscemi's first or second day at APD,
Knight arrived several minutes late. (Plt. Dep. at 506-07). Buscemi
required Knight to complete a "lost time" report so that the minutes he
had missed from work would be deducted from his accrued time off.
(Id. at 506)
Sgt. Cavuto sometimes signed the movement log so that if Knight or
anyone else arrived late, they would have to sign in after Cavuto's
entry. (Id. at 592). On May 30, 2000, Knight signed in late because
Cavuto had signed in before his arrival. (Friedman Decl. Exh. B, at 3).
Knight was required to submit a lost time report for ten minutes. (Plt.
Dep. at 592).
2. Disciplinary Action Against Knight
Knight was subject to disciplinary action by the NYPD on three
occasions following his complaint. One of the disciplinary incidents was
the result of Knights sloppy appearance while on duty at the Israeli day
parade. (Friedman Decl., Exh. T; Plt. Dep. at 209). Knight does not
allege that the disciplinary action resulting from this incident was
retaliatory. Accordingly, I consider only the two remaining incidents as
they relate to the motion for summary judgment.
i. Destruction Of NYPD Property
In February 1999, Knight received a wallet-sized "NYPD DEPARTMENT
VALUES" card.*fn1 In August 1999, Knight placed the card in a shredder
and destroyed it. (Plt. Dep. at 194-95). Knight was docked two vacation
days for destruction of NYPD property. (Id. at 206).
ii. Failure to Safeguard Firearm
In May 2000, Knight was involved in a family dispute with his brother,
Michael Knight ("Michael"). Knight is the administrator of his mother's
estate, and the dispute concerned Michael's right to enter a house owned
by the estate. (Id. at 240). Michael arrived at the house with a court
order granting him access to the house and accompanied by Sgt. Doarse
from the 113th Precinct. (Id. 241-44). Despite Knight's request that they
wait for his attorney to arrive at the scene, Doarse allowed Michael to
enter the house. (Id. at 242-43). During the ensuing discussion between
Doarse and Knight, Doarse learned that Knight had left his firearm in his
car and reported it to the Captain on duty at the 113th Precinct. (Id. at
247). Knight was
subsequently disciplined for failing to safeguard his weapon.*fn2
While represented by an attorney, Knight signed a plea agreement on March
20, 2001 accepting the disciplinary action for the incident. (Plt. Dep.
II. Procedural History
On or about June 30, 2001, Knight filed a charge of discrimination with
the Equal Employment Opportunity Commission ("EEOC"). (Compl. ¶ 6).
On or about March 6, 2002, the EEOC issued Knight a right-to-sue letter.
On May 10, 2002, Knight brought this complaint asserting claims under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL"),
the New York City Human Rights Law ("NYCHRL"), and 42 U.S.C. § 1983 and
On February 25, 2003, the claims against defendants Rudolph Giuliani
and Bernard Kerik were dismissed with prejudice.
By letter to the Court dated July 11, 2003, Knight withdrew his claims
based on racial discrimination, and any other claims to the extent they
alleged discrimination on account of race or national origin. His
remaining claims allege hostile work environment, unlawful retaliation,
denial of Equal Protection rights, violation of Knight's First Amendment
free speech, and conspiracy to deprive Knight of his constitutional
and civil rights.
Before the Court is defendants' motion for summary judgment.
I. Summary Judgment Standard
The standards governing motions for summary judgment are well-settled.
A court may grant summary judgment only where there is no genuine issue
of material fact and the moving party is therefore entitled to judgment
as a matter of law. See Fed R. Civ. P. 56(c); Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the
court's task is not to "weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). To create an
issue for trial, there must be sufficient evidence in the record to
support a jury verdict in the nonmoving party's favor. See id.
To defeat a motion for summary judgment, the nonmoving party "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita, 475 U.S. at 586. As the Supreme Court stated
in Anderson. "[i]f the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, 477
U.S. at 249-50 (citations omitted). The nonmoving party may not rest upon
mere conclusory allegations or denials, but must set forth "concrete
particulars" showing that a trial is needed. Nat'l Union Fire Ins. Co. v.
Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group,
Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal
quotations omitted)). Accordingly, it is insufficient for a party
opposing summary judgment "merely to assert a conclusion without supplying
supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace
& Co., 77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
A. Retaliation Claims
Courts employ the same analytical framework when considering
retaliation claims brought pursuant to Title VII, NYSHRL, and NYCHRL.
Cruz v. Coach Stores. Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000) (citing
cases). On a motion for summary judgment, "(1) plaintiff must demonstrate
a prima facie case of retaliation, (2) defendant then has the burden of
pointing to evidence that there was a legitimate, non-retaliatory reason
for the complained of action, and (3) if the defendant meets its burden,
plaintiff must demonstrate that there is sufficient potential proof for a
reasonable jury to find the proffered legitimate reason merely a pretext
for impermissible retaliation." Gallagher v. Delaney, 139 F.3d 338, 349
(2d Cir. 1998).
To establish a prima facie case of retaliation, Knight must demonstrate
that "(1) [he] was engaged in protected activity; (2) the employer was
aware of that activity; (3)
[Knight] suffered an adverse employment action; and (4) there was a causal
connection between the protected activity and the adverse employment
action." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998);
see also Reed v. Lawrence, 95 F.3d 1170, 1178 (2d Cir. 1996).
The term "protected activity" refers to action taken to protest or
oppose statutorily prohibited discrimination. See 42 U.S.C. § 2000e-3; see
also Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134-35 (2d
Cir. 1991). Informal as well as formal complaints constitute protected
activity. Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d
Cir. 1990). Moreover, to establish that his activity is protected, Knight
"need not prove the merit of his underlying discrimination complaint, but
only that he was acting under a good faith, reasonable belief that a
violation existed." Id. at 209; see also Grant v. Hazelett Strip-Casting
Corp., 880 F.2d 1564, 1569 (2d Cir. 1989).
An adverse employment action is a "materially adverse change in the
terms and conditions of employment." Galabya v. N.Y. City Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000) (internal quotation omitted). "`To be
materially adverse' a change in working conditions must be `more
disruptive than a mere inconvenience or an alteration of job
responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank & Trust
Co., 993 F.2d 132, 136 (7th Cir. 1993)). An adverse employment action is
not defined "solely in terms of job termination or reduced wages and
benefits[.]. . .[L]ess flagrant reprisals by employers may
indeed be adverse." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466
(2d Cir. 1997). At the same time, however, "`not every unpleasant matter
short of [discharge or demotion] creates a cause of action' for
retaliat[ion]." Id. (quoting Welsh v. Derwinski, 14 F.3d 85, 86 (1st
Cir. 1994)). There are no bright-line rules in applying this standard.
Wanamaker, 108 F.3d at 466. Courts must examine closely "each case to
determine whether the challenged employment action reaches the level of
A plaintiff may present proof of causation either "(1) indirectly, by
showing that the protected activity was followed closely by
discriminatory treatment, or . . . (2) directly, through evidence of
retaliatory animus directed against the plaintiff by the defendant."
Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000); see
also Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir.
It is undisputed that Knight engaged in a protected activity when he
complained in 1999 that he was being sexually harassed. It is also
undisputed that his supervisors were aware of the complaint. Knight,
however, cannot make out a prima facie case of retaliation because no
reasonable juror could find that the allegedly adverse employment actions
were causally related to his harassment complaint. Indeed, defendants
consistently demonstrate legitimate reasons for the allegedly retaliatory
conduct that Knight fails to rebut, and no reasonable jury could conclude
that these asserted reasons were pretextual. See Quinn
v. Green Tree Credit Corp., 159 F.3d 759, 768-69 (2d Cir. 1998).
Accordingly, defendants' motion for summary judgment is granted in this
respect and Knight's retaliation claims are dismissed.
1. Adverse Employment Action
"[D]isciplinary memoranda and evaluations are adverse employment
actions only if they affect ultimate employment decisions such as
promotions, wages or termination." Regis v. Metro, Jewish Geriatric
Ctr., 97 Civ. 0906, 2000 U.S. Dist. LEXIS 2215, at *21 (S.D.N.Y.
Jan. 11, 2001). Here, the negative performance evaluations arguably have
no impact on Knight's salary or prospects for promotion.*fn3 There was
testimony that negative evaluations could have a negative impact on
career advancement and transfer opportunities, but Knight testified that
he intends to retire as soon as he is eligible for his pension in March
2004, and there is no evidence in the record that he ever sought or
intends to seek a transfer from APD. (Commins Dep. at 12-14, Stravalle
Dep. at 45; Plt. Dep. at 70-71).
Although Knight's particular circumstances create the likelihood that
the negative performance evaluations did not constitute adverse action
here, I need not decide the issue because Knight fails to establish a
causal link between his
harassment complaint and the adverse employment action. Thus, even
assuming that the negative performance evaluations did amount to adverse
action, Knight's retaliation claim must fail.
2. Causal Connection
a. Performance Evaluations
A reasonable jury could only conclude that there was no causal
connection between Knight's complaint and his performance evaluations.
First, the record shows that Rostkowski and Tria each had legitimate,
nonretaliatory reasons for giving Knight poor performance evaluations.
Both testified to numerous occasions of having to return work to Knight
due to mistakes and missing information. (Rostkowski Dep. at 21-22, 28,
30, 57-58; Tria Decl. ¶¶ 4-6, 9). Both testified to Knight's negative
attitude toward his supervisors and repeated failure to dress properly
for work. (Rostkowski Dep. at 56-57; Friedman Decl., Exh. L(1)). Indeed,
Knight admitted that the negative aspects of his performance cited by
Rostkowski in the 1999 evaluation were true. (E.g., Plt. Dep. at 335,
357). Hence, a reasonable jury could only conclude that the supervisors'
negative comments were well-founded.
Second, Knight received the first "below competent" evaluation more
than a year after he first complained that he was being harassed and
before he filed his EEOC complaint. (Plt. Dep. at 348-49). "Mere temporal
proximity between an employer's knowledge of protected activity and an
adverse employment action
[can be accepted as] sufficient evidence of causality . . .[but] the
temporal proximity must be very close." Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273-74 (2001). The temporal sequence here fails as
a matter of law to establish that Knight's harassment complaint prompted
the negative evaluations. Clark County Sch. Dist., 532 U.S. at 273-74
(holding that action taken 20 months after protected activity suggests no
causality and citing with approval cases that held that intervals of
three and four months were too long).
Third, Knight's claim simply does not make sense. No reasonable jury
could find that Knight's supervisors, who were not even in his group at
the time of the underlying incident, as well as a superior officer, the
unit commander, and the Captain of the APD all would have given him
negative performance evaluations just because he complained about sexual
harassment not by another police officer, but by a civilian employee
particularly where the complaint was substantiated.
Knight makes two arguments in an effort to conjure up an issue of fact
as to causation. He argues that the retaliatory intent behind the
negative performance evaluations is revealed by Tria's testimony that
Commins told her "if [she] didn't give Randall Knight a below standards
evaluation [for the rating period May 21, 2001 to August 7, 2001] it
would make it look like sergeant Rostkowski was the one who had the
problem and it would make him look foolish." (Tria Dep. at 54). This
testimony does not generate an issue of material fact for trial. Despite
encouraged to change her evaluation of Knight, Tria testified that the
only change she made was the addition of a paragraph of "background
information" regarding Knight's history of poor performance evaluations.
(Id. at 51; Friedman Decl. Exh. L(2)). Most importantly, she testified
that her evaluation of Knight was based solely on her perception of his
work. (Tria Dep. at 57-58).
Knight also argues that his expert's report creates a factual issue.*fn4
Not so. The report is based largely on the expert's interpretation of the
factual record. Accordingly, the report, even if admitted into evidence,
would not alter the factual record sufficiently to enable a reasonable
juror to find that the alleged retaliation was causally related to
Knight's harassment complaint.
b. Enforcement of Minor Rules
Knight also claims that defendants retaliated against him by closely
monitoring his behavior following his harassment complaint and enforcing
trivial rule violations. For example, in January 2001 Knight was told
that if he wanted to attend the funeral of a colleague's father, he would
have to submit a lost time report even though other officers were
allegedly permitted to attend the funeral on "job time." (Id. at 537).
cites a number of examples of enforcement of minor infractions. (Id. at
Knight's claim that he was required to attend the funeral on his own
time stands out from the other allegations because he specifically claims
that he was treated differently from other officers.*fn5 There is no
specific evidence, however, to support his allegation. Indeed, Knight
admitted in his deposition that he does not know for certain whether any
other officers were required to submit lost time reports for attending
the funeral, but that he "could find out." (Id. at 539). The materials
accompanying Knight's opposition to summary judgment, however, did not
include any evidence to substantiate this claim. Thus, the only evidence
that Knight was treated differently from the other officers attending the
funeral is his wholly unsubstantiated allegation.
Defendants have a justification for each minor disciplinary action
against Knight: his admitted and repeated violations of NYPD rules.
(E.g. id. at 108, 171, 173, 415, 416-17, 506, 588)(Knight's deposition
testimony where he admits to incidents of arriving late, not wearing
proper business attire, signing someone else onto the movement log,
improperly answering a precinct telephone, and failing to sign out from
cites no evidence that he was treated differently from other similarly
situated officers. The only evidence that these incidents are related to
his harassment complaint is temporal proximity. Many of the incidents,
however, occurred more than a year after he filed his complaint and are
therefore too remote to enable a jury to infer a causal relationship.
c. Disciplinary Action
The disciplinary action against Knight for shredding his "NYPD Values"
card and for failing to safeguard his firearm followed his initial
harassment complaint against Idris by six months and fifteen months,
respectively. (Friedman Decl. Exh. R, Exh. S). Knight has presented no
evidence whatsoever to support his claim that these disciplinary actions
were in any way related to his harassment complaint. Knight admits his
culpability in both these incidents. Again, the sequence of events is the
primary evidence of a retaliatory motive. The temporal proximity of the
disciplinary action is so remote from the protected activity, however,
that no reasonable jury could infer retaliation.
d. Overtime and Mandatory Detail Assignments
Even if Knight could somehow establish that any loss of overtime was an
adverse employment action, there is little evidence to support his claim
that it was related to his harassment complaint. Although Tria testified
that she was instructed not to give Knight overtime in 2001, Knight cites
no evidence that the instruction was in any way related to Knight's
harassment complaint. Indeed, Knight admits that performance is a
legitimate consideration for overtime assignments (Plt. Dep. at 38-39),
and it is undisputed that during the relevant time period Knight's
performance evaluations were negative. Based on these facts and the more
than two years between Knight's initial harassment complaint and the
alleged loss of overtime, no reasonable juror could infer a causal
connection between them.
d. Excessive Monitoring
Knight has adduced no evidence during discovery to support a claim that
restricting his access to Idris's floor was retaliatory. The evidence
reflects that the movements of Idris and Knight were restricted while
Knight's harassment complaint was under investigation as an interim
measure to minimize opportunities for further conflict. (Id. at 479-80,
487; Rostkowski Dep. at 25; Friedman Decl. Exh. F). Once the complaint was
substantiated, Idris was transferred to an office in a different
borough, and Knight's unrestricted access to the sixth floor was
Clearly, the restriction from the sixth floor was related to the
harassment complaint, but the circumstances surrounding the restriction
reveal that it was an appropriate effort to minimize contact between
Knight and Idris during the pendency of his harassment complaint. Under
these circumstances, no reasonable juror could hold that Knight's
temporarily restricted access to the sixth floor was prompted by a
Considering the evidence as a whole, and resolving all conflicts in the
evidence and drawing all reasonable inferences in Knight's favor, I
conclude that no reasonable jury could find that any adverse employment
action suffered by Knight was in retaliation for his harassment
Knight is obliged to present sufficient evidence to support a finding
by a reasonable jury. See Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2d Cir. 1996) (to defeat summary judgment, plaintiff is
obliged not just to produce "some" evidence, but must produce sufficient
evidence to support a rational jury verdict in her favor). Here, the
record is simply devoid of evidence sufficient to connect Knight's
harassment complaint to the allegedly adverse employment action. I
conclude that no reasonable jury could find that Knight was the victim of
unlawful retaliation. Accordingly, the motion for summary judgment is
granted as to Knight's retaliation claims.
B. Hostile Work Environment Claim
Knight alleges that he was the victim of a "persistent and pervasive
practice of harassment by restrictions, threats of transfers, work
assignments, denial of overtime, time off, unwarranted investigations,
and disciplinary action" in retaliation for his harassment complaint.
(Compl. ¶ 84). To prevail on the hostile work environment claim under
Title VII, Knight must show that his workplace during the relevant time
frame was "`permeated with discriminatory intimidation, ridicule and
insult, that [was] sufficiently severe or pervasive to alter
the conditions of [his] employment.'" Torres v. Pisano, 116 F.3d 625,
630-31 (2d Cir. 1997) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993)). The work environment must have been "objectively' hostile or
abusive," and Knight must have "subjectively perceived" the environment
to have been abusive. Id. at 21. Additionally, Knight must demonstrate
that a specific basis exists for imputing the conduct that created the
hostile environment to the employer. Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 715 (2d Cir. 1996). Of course, for Knight to
prevail he must demonstrate that this hostile environment was motivated by
an intent to retaliate against him for filing the complaint against
Assuming Knight subjectively perceived his work environment to be
abusive, to establish an objectively hostile work environment he must
show that the allegedly retaliatory incidents "were sufficiently
continuous and concerted to have altered the conditions of [his] working
environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
2000). A jury would consider the nature and severity of the allegedly
hostile conduct, and whether it unreasonably interfered with Knight's
work performance. Harris v. Forklift, 510 U.S. 17, 23 (1993).
Based on the totality of the circumstances, no reasonable juror
considering the claim could find that Knight's work environment was
objectively hostile or abusive as a matter of law. Knight relies on the
same operative facts underlying his retaliation claims to support his
hostile work environment claim.
His retaliation claims fail, however, because the incidents are too
remote from Knight's harassment complaint or because Knight has failed to
show that the allegedly adverse employment action was anything other than
legitimate actions taken by his supervisors. Accordingly, defendants'
motion for summary judgment as to this claim is granted.
C. The Section 1983 Claims
Section 1983 provides a cause of action where (1) defendants acted
under color of state law; and (2) defendants' actions caused a plaintiff
to suffer a denial of his constitutional rights or privileges. Eagleston
v. Guido, 41 F.3d 865, 872 (2d Cir. 1994).
Knight couches his initial Section 1983 claim for retaliation as a
violation of his Equal Protection rights under the 14th Amendment.
"Claims of retaliation are not cognizable under the Equal Protection
Clause because Title VII provides an exclusive remedy for such claims."
E.g., De La Cruz v. Guilliani, No. 00 Civ. 7102 (LAK), 2002 U.S. Dist.
LEXIS 19922, *34 (S.D.N.Y. Aug. 23, 2002). Accordingly, the claim is
To establish a First Amendment retaliation claim under Section 1983,
Knight must establish that (1) the speech at issue was protected; (2) he
suffered an adverse employment action; (3) there was a causal connection
between the protected speech and the adverse employment action. Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
To constitute protected speech, the speech at issue must involve a
mater of public interest. Pickering v. Board of Educ., 391 U.S. 563, 568
(1968). "[W]hen a public employee speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only of personal
interest, absent the most unusual circumstances, a federal court is not
the appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the employee's
behavior." Connick v. Myers, 461 U.S. 138, 147 (1983).
Knight's complaints of sexual harassment and discrimination were
related solely to his employment status and do not amount to protected
speech on a matter of public interest. Saulpaugh v. Monroe Cmty. Hosp.,
4 F.3d 134, 143 (2d Cir. 1993). Accordingly, Knight's First Amendment
claim is dismissed.
D. The Section 1985 Claim
Knight's sixth claim for relief alleges that defendants conspired to
deprive him of his constitutional and civil rights in violation of
42 U.S.C. § 1985(3). To establish a claim under Section 1985(3) Knight
must establish: (1) the existence of a conspiracy; (2) for the purpose of
depriving him, either directly or indirectly, of equal protection of the
laws, or of equal privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; and (4) injury in his person or property
or deprivation of any right of a citizen of the United States. Mian
v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085, 1087 (2d Cir. 1993)(citing United Bros, of Carpenters &
Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983)). Furthermore, the
conspiracy must be motivated by "some racial or perhaps otherwise
class-based, invidious discriminatory animus behind the conspirators'
action." United Bros., 463 U.S. at 829.
Section 1985(3) provides a civil cause of action only when some other
defined federal right has been violated; it creates no substantive
rights. See Great American Federal Sav. & Loan Ass'n v. Novotny,
442 U.S. 366, 376 (1979). Because none of Knight's remaining claims in
this case can withstand the motion for summary judgment, there is no
basis on which Knight can pursue a Section 1985(3) claim. Walker v. New
York City Transit Auth., 2001 U.S. Dist. LEXIS 14569, *39 (S.D.N.Y.
Sept. 19, 2001). Accordingly, summary judgment is granted to defendants
dismissing Knight's claims of civil rights conspiracy under
42 U.S.C. § 1985.
For the reasons set forth above, defendants' motion for summary
judgment is granted as to all claims. The complaint is dismissed as to
all defendants, with prejudice. The Clerk of the Court shall enter