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.
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).
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).
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 ...