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ALEXANDER v. CITY OF NEW YORK

United States District Court, S.D. New York


August 24, 2004.

RAYMOND R. ALEXANDER, III, Plaintiff,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE SERGEANT TORCHIO, CAPTAIN BAMBURG, and DEPUTY INSPECTOR WILLIAMS, Defendants.

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

Opinion

This is an action alleging employment discrimination and retaliation in violation of the First and Fourteenth Amendments of the U.S. Constitution and state and local human rights laws. Plaintiff Raymond R. Alexander, III brings the action against his employer, defendant New York City Police Department ("NYPD"), defendant City of New York, and three individual NYPD officers, Sergeant Jorma Torchio, Captain John Bamburg, and Deputy Inspector Samuel Williams. Plaintiff, who is a gay, African American man, alleges that defendants discriminated against him and harassed him on the basis of his gender and sexual orientation. Plaintiff also alleges that defendants retaliated against him for complaining of the discrimination, in violation of his First Amendment rights. Finally, plaintiff alleges that the discrimination and retaliation he suffered was the result of certain policies, practices, or customs of the NYPD, giving rise to municipal liability under 42 U.S.C. § 1983.

The Court observes at the outset that the NYPD, as an organizational subdivision of the City of New York, is not a suable entity. See N.Y. City, N.Y., Charter § 396; Rill v. City of New York, 03 Civ. 0522, 2004 WL 324869, at *1 n. 1 (S.D.N.Y. Feb. 20, 2004); East Coast Novelty Co., Inc. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992). Therefore, plaintiff's § 1983 claims, which the complaint appears to state as lying against the City of New York and the NYPD, may only lie against the former entity. This opinion will treat plaintiff's claims under § 1983 as against only the City of New York. Although the defendants do not move for such relief, it is appropriate for the Court, sua sponte, to dismiss all claims with respect to the NYPD.

  Defendants move for summary judgment. For the reasons set forth, the motion is granted.

  FACTS

  Plaintiff began his employment with the NYPD on August 31, 1998, shortly after which date he entered the New York City Police Academy. As will be explained in more detail, plaintiff contends that he encountered discrimination, harassment, and retaliation from the time he entered the Police Academy, through his first assignment at the 73rd Precinct, and after his transfer from the 73rd Precinct to Police Service Area #3 ("PSA #3"). Plaintiff alleges that throughout this time he was discriminated against and suffered harassment from co-workers and supervisors because he was gay, and because he failed to fit the male stereotype that the NYPD demanded of its officers. Plaintiff also alleges that throughout this time he repeatedly complained of discrimination and harassment, and that each time he complained he suffered retaliation from his superior officers.

  THE POLICE ACADEMY

  The first incident of which plaintiff complains concerns physical fitness testing at the Academy. As one component of this testing, plaintiff, along with other recruits, was required to run one and a half miles in a certain amount of time. Plaintiff testified in his deposition that he had difficulty keeping up with other recruits and making the required time during these runs. According to plaintiff, on one occasion an Academy instructor by the name of Hector-Johnson, took plaintiff into a room and screamed at him to quit the Academy because of his inability to run. Plaintiff also testified that on another occasion when he had to drop out of the run, an instructor by the name of Lark made him stand in the middle of the gymnasium in front of other recruits while Lark pointed and yelled, "nobody wants to be like Alexander, nobody wants to be a run dropout, you don't want to be like him." (Tr. 19:8)

  Plaintiff testified that this manner of being singled-out continued until November 12, 1998, when plaintiff became unable to breathe during a run with other recruits. Plaintiff was admitted to Cabrini Medical Center for three days as a result of this incident, and was diagnosed with exercise-induced asthma. Plaintiff testified that, during this incident, an Academy instructor by the name of Bailey said that he didn't care if plaintiff couldn't breathe. It should be noted that, according to plaintiff's deposition testimony, Hector-Johnson, Lark, and Bailey, who are not named in the instant action, are the only officers at the Academy who harassed plaintiff during his time there.

  Plaintiff states, in his affidavit submitted on the current motion, that following the November 12 incident he orally requested to be excused from future runs as an accommodation for his asthma. Plaintiff states that he received no response to this request. Thereafter, on December 28, 1999 plaintiff submitted a written request for accommodation. Plaintiff also submitted documentation from medical doctors, which stated that plaintiff suffered from asthma and that plaintiff was generally physically fit but should be excused from running the one and a half mile requirement. Plaintiff states in his affidavit that, while his request for accommodation was pending, he was assigned to limited duty and did not participate in physical training at the academy.

  In January 1999 plaintiff was referred for evaluation to the NYPD Psychological Services Unit ("PSU"). This was the first of several PSU referrals that plaintiff received during the time period relevant to the instant action. Plaintiff alleges that this referral, and all subsequent referrals, were made in retaliation for his complaints of discrimination against him. A January 6, 1999 memorandum from Vincent Gaudio, Commanding Officer of the Recruit Training Section of the NYPD, requests a psychological evaluation of plaintiff based on several incidents between October and December of 1998. The memorandum lists three incidents reported by Academy instructors in which plaintiff "became emotional" and/or began crying when confronted about difficulties he was having in completing the physical fitness requirements of the Academy. Notes from plaintiff's January 1999 PSU evaluation were submitted on the current motion. They indicate that a doctor from PSU spoke with Detective Sierra, apparently of the Police Academy. The notes indicate that Sierra stated that plaintiff "cries whenever confronted," that "instructors complain that [plaintiff] doesn't participate, doesn't get along with peers," and that plaintiff "stubbornly believes that environment should adjust to him." Plaintiff's PSU evaluation apparently concluded that plaintiff was fit to return to duty.

  On February 24, 1999 plaintiff was ordered back to full duty and was therefore required to participate in the running requirement. Plaintiff states that on that day, during the run, he experienced an asthma attack and was again taken to Cabrini Medical Center. Plaintiff states that he became extremely distraught during the attack and began to cry. A February 25, 1999 memorandum from Lieutenant Christopher Delsante, submitted on the current motion, gives a different description of plaintiff's asthma attack. The Delsante memorandum states that, upon the completion of the run on February 24, plaintiff approached his instructor and asked what his time had been on the run. The instructor told plaintiff that he had failed to make the time required by the Academy, but refused to give plaintiff his time and told plaintiff to "fall in" with his company. Plaintiff reportedly asked for his time once again, and was given the same answer. At that point, according to the memorandum, plaintiff fell to the ground, complaining of shortness of breath. The memorandum concludes, "[W]henever [plaintiff] is placed in a stressful situation he fails to properly function. His performance has indicated that he is not capable of carrying out the various police duties on patrol."

  On March 1, 1999, having received no determination from the NYPD regarding his request for accommodation, plaintiff filed a discrimination complaint with the NYPD Office of Equal Employment Opportunity ("OEEO"). The complaint alleged discrimination on the basis of disability, and requested a reasonable accommodation of his asthma.*fn1 On August 13, 1999 the OEEO returned a determination that plaintiff did not qualify for an accommodation under the ADA. According to documentation submitted on the current motion, the request was denied on the recommendation of Chief Surgeon Robert Thomas, who is apparently an NYPD doctor. Thomas determined that "prior to being hired, [plaintiff] had no incidents of asthma nor had he ever been required to exercise," and that "the asthma is caused by fact that [plaintiff] is not physically fit and that if he does get into physical shape, the asthma will not become an issue."

  On April 5, 1999 plaintiff filed a complaint of disability discrimination and harassment with the Equal Employment Opportunity Commission ("EEOC").*fn2 The complaint stated that he had requested reasonable accommodation of his asthma condition, namely, that the time requirement for the Police Academy running requirement be adjusted. The complaint stated that his accommodation had been denied. The complaint also stated that he had been harassed by trainers at the Academy and told that he should quit. Plaintiff's EEOC complaint eventually was dismissed on July 16, 1999.

  Plaintiff alleges that, in retaliation for filing the above complaint, he was prevented from graduating from the Police Academy in a timely manner. Plaintiff stated in his deposition that, shortly before the April 26, 1999 graduation ceremony, he was informed by Lieutenant Johnson of the Police Academy that he would not be graduating. Plaintiff testified that he sought an explanation for the fact that he would not be graduating, and that neither Johnson, nor another supervising officer at the Academy, would provide him with a reason. Plaintiff testified that he was forced to take a vacation day on graduation day, and that he was subsequently assigned to work in a "reproduction room" in the basement of the Police Academy for 30 days. Plaintiff testified that he was not permitted the opportunity to obtain his firearm until May 3, 1999. After obtaining his firearm qualification, plaintiff was reassigned from the reproduction room to the 73rd Precinct.

  THE 73RD PRECINCT

  Plaintiff began working at the 73rd Precinct on May 18, 1999. His commanding officer at the precinct was Captain McDermott, who is not named as a defendant in the instant action.

  The first instance of harassment alleged to have taken place at the 73rd Precinct occurred on September 4, 1999. On that day, plaintiff was assigned to a patrol car, with three other officers: Richard Zafrani, Michael O'Connell, and Carl Haymer. Zafrani and O'Connell are both white, and Haymer is African American.

  Plaintiff testified in his deposition that, while on patrol, the other officers repeatedly stopped and conducted searches on African American and Puerto Rican men when plaintiff felt that there was no cause to do so. Plaintiff also testified that at one point during the patrol, Zafrani used the loud speaker in the patrol car to call out to an African American woman standing at a bus stop, saying, "Stop smiling and get your teeth fixed." Plaintiff testified that at another point in the patrol, when plaintiff requested that the patrol car pull into Wendy's restaurant so that he could buy dinner, Zafrani told him that he would have to get out of the patrol car two blocks away from the restaurant and walk.

  Plaintiff testified that later in the patrol, while Zafrani was driving, plaintiff asked Zafrani to turn the patrol car around so that suspicious activity that plaintiff observed could be investigated. According to plaintiff, Zafrani said that he would not go back. Plaintiff responded that he would "kick [Zafrani's] ass" if Zafrani did not turn the car around. At the end of the patrol, when plaintiff was leaving the car, he turned to Haymer and stated, "I want these white boys to leave me alone."

  Plaintiff testified in his deposition that another altercation with Zafrani occurred the same day, following the conclusion of the patrol. When the officers concluded the patrol that day they apparently returned not to the 73rd Precinct, but instead to the 70th Precinct, which was located in the geographic area of their patrol. While at the 70th Precinct, plaintiff, Zafrani, and O'Connell were standing outside the precinct bathroom, when, according to plaintiff's testimony, Zafrani said to O'Connell, "Have you seen the famous bathroom?" Plaintiff testified that he understood Zafrani to be making reference to the assault on Abner Louima, which had occurred in the bathroom of the 70th Precinct in 1998. Plaintiff testified that he said nothing to Zafrani in response.

  Shortly after September 4, Captain McDermott received a report of plaintiff's comments to Zafrani in the patrol car. McDermott subsequently conducted an investigation that consisted of interviewing plaintiff, Zafrani, O'Connell, and Haymer. According to plaintiff, during his interview with McDermott he relayed that during the September 4 patrol he had been upset with Zafrani for improperly stopping and searching African American and Hispanic men, because of Zafrani's inappropriate remarks to an African American woman during the patrol, and because of Zafrani's refusal to investigate suspicious activity that plaintiff observed. Plaintiff states that he also admitted to McDermott that he had told Zafrani that he would kick his ass.

  In a memorandum prepared by McDermott dated September 7, 1999, McDermott concludes that "plaintiff was the primary aggressor during the incident." Plaintiff was placed on restricted duty, and his weapon was removed "based on his statements and agitated emotional state during the above interview." According to the memorandum, the OEEO was notified regarding plaintiff's "white boys" comment. The incident was also referred to NYPD Internal Affairs for disciplinary action, and plaintiff ultimately, on March 13, 1999, received a command discipline of three days' suspension in connection with the incident. Zafrani apparently was not disciplined as a result of the incident.

  Following McDermott's investigation, and on McDermott's recommendation, plaintiff was referred to PSU. Plaintiff states that he was referred because of his "white boys" comment. Notes from the PSU psychologist's telephone conversation with McDermott, conducted in the course of plaintiff's evaluation, state that McDermott had observed plaintiff "on the verge of tears" during McDermott's discussion with plaintiff about the Zafrani incident. On September 22, 1999 PSU recommended that plaintiff was fit to return to full duty, including having his firearm reinstated.

  On November 17, 1999 plaintiff was interviewed by Lieutenant Mole, an Internal Affairs investigator, in connection with the September 4 incident. During this interview, plaintiff informed Mole of the comment made by Zafrani at the 70th Precinct. On November 19, 1999 Mole filed a complaint with the OEEO on behalf of plaintiff, in connection with the above-described comment by Zafrani. On November 22, 1999, plaintiff was advised in writing by the OEEO that the matter "did not rise to . . . a violation that would be investigated by this office, and it was referred back to your Commanding Officer for his appropriate attention and corrective action." The record does not reveal whether any subsequent disciplinary action was taken against Zafrani.

  POLICE SERVICE AREA #3

  In December 1999 plaintiff requested, and received, a transfer to PSA #3. Plaintiff testified in his deposition that he requested the transfer in order to avoid the harassment that he was experiencing at the 73rd Precinct.

  At PSA #3 plaintiff was assigned to the Second Platoon. Lieutenant Christopher Greaves, who is not named as a defendant in the instant action, was the commanding officer of the Second Platoon. Defendant Torchio, who began at PSA #3 in May 2000, was one of several superior officers in the Second Platoon, and occasionally directly supervised plaintiff. Torchio and other supervisors were apparently, among other responsibilities, charged with overseeing daily assignments that were given to police officers at PSA #3. Two other supervising officers who were responsible for patrol assignments, but who are not named as defendants in this action, are Sergeant Jesse Daniels, and Sergeant Lambert. The commanding officer of PSA #3 at the time that plaintiff transferred to the post was defendant Williams. Williams left PSA #3 in approximately May 2001, at which time defendant Bamburg became the commanding officer of the post.

  Plaintiff alleges that in January 2000 he complained to his union delegate at PSA #3, Mike Scala, that he was being harassed. According to plaintiff, Scala told him that the harassment was occurring because plaintiff's fellow police officers perceived that he was gay. The record contains no evidence that this "complaint" by plaintiff was ever filed or pursued through formal channels. Plaintiff alleges that during his time at PSA #3, Torchio deliberately changed plaintiff's duty assignments in order to give plaintiff less favorable responsibilities than he otherwise would have received. Although plaintiff does not give a timeframe for this conduct, Torchio's testimony as to when he served at PSA #3 establishes that it must have occurred beginning in or around May 2000. Plaintiff testified that Torchio repeatedly removed plaintiff from patrol assignments that were desirable, such as patrol car assignments, and moved him to assignments that were less desirable, such as foot patrol, guarding prisoners in hospitals, or performing security duty at the station house.

  According to plaintiff's deposition testimony, out of the three supervising officers who were responsible for his patrol assignments — Torchio, Daniels, and Lambert — only Torchio harassed plaintiff by changing his assignments. Plaintiff also testified that he received what he considered to be "desirable" patrol assignments approximately once or twice a month, regardless of which supervisors were in charge of assignments. Plaintiff testified that he assumed that Torchio knew that he was gay, and that he believed that Torchio changed his assignments because plaintiff was gay. Torchio testified in his deposition that he was not aware that plaintiff was gay.

  Plaintiff also describes an incident that he characterizes as retaliation against him by Torchio. Plaintiff alleges that on one occasion, he complained to Torchio that the assignments he was receiving were not fair. Plaintiff alleges that following his complaint, Torchio falsely told Williams that plaintiff had stated that he would "get everyone" when his probation ended. Plaintiff testified that he never made such a remark, and that Torchio made the false report in retaliation for plaintiff's complaint. Plaintiff testified that as a result of Torchio's false report plaintiff was referred to PSU. Torchio, in his deposition, confirmed that on one occasion he informed Williams about a remark that plaintiff had made to him when Torchio reprimanded him for not responding to an officer's call for assistance. Torchio testified that plaintiff had told him that "he didn't like the way things were being run," and that "he was going to let it all out." (Tr. 29:15) Torchio stated that he reported the remark because, based on plaintiff's statement that he would "let it all out," he was concerned for the safety of plaintiff and others. The record of psychiatric evaluations submitted by plaintiff on the current motion does not appear to contain any documents pertaining to a referral or evaluation in this time period.

  On November 28, 2000 plaintiff notified a superior officer, Lieutenant Christopher Greaves, that graffiti stating, "Ray is gay," had been placed on plaintiff's locker in the precinct locker room. The same day, Greaves filed an OEEO complaint on behalf of plaintiff, reporting what plaintiff had relayed to him. Greaves also ordered photographs to be taken of the locker, apparently pursuant to advice from OEEO.

  On December 12, 2000 plaintiff was advised in writing by the OEEO that the November 28 complaint had been reviewed and that "the complaint did not require a full investigation pursuant to Title VII of the Civil Rights Act of 1964, or state or local discrimination law." The notification stated that the case was referred back to the commanding officer of PSA #3 for further attention.

  Plaintiff states in his affidavit that some time in December 2000 he was assigned to a sixty-day foot post as punishment for being involved in a minor vehicular accident. It is not clear from his affidavit who was responsible for this assignment. Plaintiff states that he complained to Williams that this assignment was excessive discipline and that it was in retaliation for his November 28 OEEO complaint.

  On January 16, 2001 plaintiff filed another OEEO complaint. This complaint alleged that plaintiff had been retaliated against for filing the November 28 complaint. Plaintiff listed two examples of alleged retaliation. First, plaintiff stated that on January 13, 2001 Lieutenant Patrick Zwiebel of PSA #3 screamed at him while he was processing an arrest, accusing plaintiff of abusing overtime. Second, plaintiff stated that on January 15, 2001 he was summoned to a meeting with a superior officer at Brooklyn North, who interviewed plaintiff about whether he had recently been crying and upset while on duty. Plaintiff reported that he was subsequently referred to PSU for evaluation. Plaintiff alleged in the compliant that both of these incidents occurred because of his November 28, 2000 OEEO complaint.

  Greaves addressed the above-described January 2001 PSU referral in his deposition testimony. Greaves testified that he had been informed by a Sergeant Henderson of an incident in which plaintiff became extremely upset in response to fellow police officers teasing him. Greaves testified that plaintiff had been on duty at the station house, and had asked several other officers to pick up a meal for him. When the officers returned to the station house with plaintiff's food, they were "breaking his chops" about the size of the order and the hassle of acquiring food for plaintiff. At that point, Henderson apparently observed that plaintiff was very upset and crying. Plaintiff told Henderson that he was too upset to eat, and threw his food in the garbage. This account is also stated in a January 16, 2001 PSU referral memorandum prepared by Greaves and submitted on the current motion. The memorandum stated that, after conferring with Williams, and based on the food incident "and in conjunction with several other incidents over the past few months which involved similar behavior," Greaves contacted Captain Puglisi of the Brooklyn North command to interview plaintiff in order to ascertain his emotional state.*fn3 The memorandum states that Puglisi interviewed plaintiff and found him fit for duty. The memorandum concludes, however, that "based on his repeated inappropriate behavior he may be suffering psychological problems and, appears to be incapable of everyday interaction with other members of the Department. Therefore, a duty status evaluation by Psychological Services is being requested."

  On April 18, 2001 OEEO advised the commanding officer of PSA #3, in writing, that plaintiff had filed a complaint on January 16 alleging that Zwiebel "was discourteous in his interaction" with plaintiff. The letter states that the complaint did not require full investigation under Title VII, or state or local discrimination laws, but that the allegations complained of, "if true, were inappropriate and this complaint is being returned to your command for your appropriate attention and/or corrective action."

  On May 3, 2001 the OEEO advised plaintiff in writing that investigation of his January 16 complaint was being terminated, and that the case had been referred to plaintiff's commanding officer for appropriate attention.

  On July 9, 2001 plaintiff complained to Lieutenant Greaves that he was not being treated fairly by supervising officers at PSA #3. Plaintiff reported to Greaves that plaintiff had been unfairly denied the use of a scooter on one of his patrols by Sergeant Daniels, a supervising officer who is not named as a defendant in the instant action. Plaintiff also complained that on July 4, 2001 he had attempted to transmit over his radio, but had been unable to do so as a result of other officers transmitting on their radios at the same time. Greaves testified in his deposition that plaintiff did not convey to him at this time that either the scooter assignment or the radio difficulty occurred because of discrimination against plaintiff. According to a memorandum prepared by Greaves in connection with the conversation with plaintiff, on July 9, 2001 Greaves addressed the second Platoon roll call regarding the proper use of Department radios and admonishing against unauthorized transmissions.

  On August 14, 2001 plaintiff observed for the second time graffiti on the wall of the men's locker room bathroom that said, "Ray is gay." Plaintiff reported the graffiti to Sergeant Daniels. Lieutenant Greaves conducted an investigation of the incident, including interviewing plaintiff and photographing the graffiti. On the same day plaintiff filed a complaint with the OEEO regarding the graffiti, alleging discrimination on the basis of sexual orientation. According to Bamburg's deposition testimony, he was informed by Daniels about the graffiti, and was told that pictures had been taken, OEEO had been contacted, and an investigation was under way. Bamburg testified that he personally had a conversation with plaintiff about the incident, explaining OEEO policy and informing plaintiff that an investigation would be conducted.

  On the same day, Internal Affairs received an anonymous phone call concerning plaintiff, reporting that he had been observed crying and punching walls at PSA #3. Following that call, plaintiff was summoned from his home by two detectives, and was brought to the Brooklyn North command Bamburg testified at his deposition that he was paged regarding the report to Internal Affairs, and was told that plaintiff was being brought to Brooklyn North. Bamburg testified that, shortly thereafter, he had a telephone conversation with plaintiff. Plaintiff does not contradict Bamburg's version of this conversation: that they discussed the Internal Affairs report, and that in the conversation Bamburg sought to ascertain whether plaintiff was upset and whether he was suicidal. Bamburg testified that plaintiff was "adamant" in denying the report that he had been crying or banging his head, but that plaintiff conceded, when asked by Bamburg, that he was upset about the graffiti incident. Bamburg told plaintiff at the conclusion of their conversation that plaintiff should report to PSU for evaluation the next day.

  According to Bamburg's testimony, the following day plaintiff complained to him that he was being referred to PSU in retaliation for the filing of an OEEO complaint regarding the graffiti. Bamburg testified that, following that conversation, he contacted the OEEO to notify the office that a complaint of violation of OEEO policies had been made against him. Bamburg prepared a memorandum to OEEO, which has been submitted on the current motion, stating that plaintiff complained of retaliation in the form of a PSU referral.

  Plaintiff did report to PSU, pursuant to Bamburg's August 14 referral. In the course of plaintiff's PSU evaluation, a PSU doctor contacted Bamburg. Bamburg testified in his deposition that he spoke with the doctor regarding plaintiff's crying, and that the doctor informed him that plaintiff's sensitive. He cries easily. He's easy to offend." (Tr. 68:22) Bamburg testified that he asked the doctor, "[W]ell, would you agree that maybe [plaintiff's] just not in the right line of work? A man with his outlook, do you think that could be why he's experiencing some problems?" (Tr. 72:2) According to Bamburg, the doctor responded that "it was her professional opinion that . . . [p]olice work was not the right line of work for Raymond." (Tr. 72:7) Bamburg further testified that he asked the doctor whether plaintiff was not in the right line of work

 

in the sense of, is this a guy who is going to kill himself? Or is this a guy, maybe he's not in the right line of work, that's why he gets so upset about these things. Not to impart that I feel that Raymond Alexander is not in the right line of work, but as an illustrative sense to get a baseline as to what type of person Raymond is.
(Tr. 74:2)

  Following plaintiff's evaluation, he returned to his full duties at PSA #3.

  On October 6, 2001 plaintiff arrested James Pearson for burglary and trespass. Several other officers transported the individual to PSA # 3, and plaintiff arrived at PSA #3 shortly after Pearson and the other officers. Torchio was the desk officer on duty, which meant that Torchio oversaw the processing of arrestees, including any searches that were to be conducted.

  Precisely what occurred when plaintiff arrived at PSA #3 is a matter of some dispute. According to plaintiff's deposition testimony, upon his arrival Pearson began to shout and call plaintiff a "homo" and a "fag," and said, "I want to fuck you." Plaintiff testified that the comments were directed only at him. He further testified that as Pearson shouted these things, Torchio and the other officers present laughed. Plaintiff testified that Torchio then commanded plaintiff to search Pearson, including searching his waistband and pockets and conducting a pat-down of Pearson's clothing. According to plaintiff, another officer who had transported Pearson to the precinct had already conducted a search of Pearson pursuant to police procedure. Plaintiff testified that after completing his search of Pearson at the front desk, Torchio commanded plaintiff to take Pearson to the bathroom of a holding cell, and to search Pearson again. According to plaintiff, although Torchio did not explicitly say that Pearson should be "strip searched," the fact that Torchio told plaintiff to conduct a further search in the cell bathroom conveyed that Torchio's intention was for plaintiff to strip search Pearson. Plaintiff testified that he instructed Pearson to remove his belt, shoes, pants, and underwear, which Pearson did. Plaintiff testified that, after Pearson was naked from the waist down, Torchio instructed plaintiff to lift Pearson's shirt, which plaintiff did. Plaintiff testified that Pearson then began to grab and shake his genitals, and to make more comments of the sort described above. Plaintiff further testified that Pearson tried to grab and kiss him, and that he had to push Pearson away. Plaintiff testified that all of this was done in Torchio's presence, and that throughout this time Torchio and the others stood by and laughed.

  Torchio testified in his deposition to a different course of events. According to Torchio, Pearson began acting "deranged" after his arrest and when plaintiff arrived at PSA #3. Torchio testified that Pearson told him that he "wanted to fuck" him, and that Pearson yelled the same phrase to two other officers. Torchio testified specifically that Pearson told an officer by the name of Lord that "he wouldn't fuck him because his head was too big." According to Torchio, this comment caused him and the other officers to laugh.

  Torchio testified that he told plaintiff to place Pearson in the precinct holding cell and to search him. According to Torchio, a second officer, by the name of Bovary, was present in the cell with plaintiff. Torchio testified that he asked Bovary to assist plaintiff with the search, because Torchio felt that plaintiff was not conducting a proper search pursuant to police procedure. Torchio testified that he did not instruct plaintiff to strip search Pearson, and that Pearson was in fact not strip searched. Torchio testified that Pearson removed his belt and shoes, and lifted up his shirt. According to Torchio, no other items of clothing were removed. Torchio testified that he requested that these items of clothing be removed so that it could be ascertained that Pearson did not have burglar's tools. Torchio testified that during plaintiff's search of Pearson, Pearson repeatedly told plaintiff to stop, saying, "Stop, no more." (Tr. 61:8)

  Pearson was subsequently transported to an area hospital. Plaintiff testified that Pearson was hospitalized because he complained of stomach pains. Torchio testified that he called an ambulance to transport Pearson to the hospital because of the way in which Pearson was acting. On October 7, 2001 when plaintiff reported for duty he was told that he was assigned to the hospital to guard Pearson. Plaintiff testified that he approached Sergeant Daniels, who apparently was supervising him that day, explained to him what had happened the night before, and requested to have the assignment changed. According to plaintiff, Daniels refused to change the assignment. Plaintiff testified that when he arrived at the hospital and saw Pearson, Pearson told him, "They told me to say those things." According to plaintiff, this was said in the presence of another officer, by the name of Smith, who plaintiff was relieving from guard duty. Plaintiff testified that he interpreted Pearson's comment to mean that Torchio and the other officers present at PSA #3 the previous day had told Pearson to harass plaintiff. Plaintiff testified that he relayed Pearson's comment to Daniels.

  On October 8, 2001 plaintiff filed an OEEO complaint complaining of Torchio's behavior in the above incident. The OEEO conducted an investigation, which included interviewing Bovary, Daniels, and a police officer by the name of Vargas. Transcripts of those interviews have been submitted on the current motion. Bovary's testimony corroborated Torchio's description of the sexual comments that Pearson had made to other officers during his processing at PSA #3. Bovary testified that prior to plaintiff's arrival, the officers and Torchio had been laughing at those comments. Bovary testified that after plaintiff's arrival the laughter stopped because Pearson's attitude, and the tone of his remarks directed at plaintiff, became extremely hostile. Bovary testified that the other officers present stopped laughing at that point. Bovary also testified that he was not aware of any officer who told Pearson to make derogatory remarks to plaintiff. Daniels testified regarding his conversation with plaintiff the day following the Pearson arrest, in which plaintiff asserted that he requested to be removed from the assignment to guard Pearson at the hospital. Daniels testified that, although plaintiff made that request, plaintiff did not explain what had happened the night before in any detail, beyond stating that Pearson had "dissed" him during the arrest. Finally, Vargas testified that he worked with plaintiff on the day following the Pearson arrest, and that plaintiff told him that during the arrest Pearson had been calling him derogatory names and Torchio and others had been laughing.

  At some point after October 2001 plaintiff learned that an anonymous Internal Affairs complaint had been filed against him, alleging that he had used excessive force against Pearson. The complaint was subsequently referred to the Civilian Complaint Review Board ("CCRB"), and was ruled "unsubstantiated" on January 29, 2002. Plaintiff alleges that the Internal Affairs complaint was made by Torchio or by one of the other officers present at PSA #3 on October 6.

  On October 15, 2001 plaintiff filed another complaint with the OEEO, complaining that he had once again found graffiti saying, "Gay Ray" written in a bathroom in the precinct. The record does not contain any other description of this third graffiti incident.

  In December 2001 plaintiff transferred out of PSA #3 to PSA #7. Plaintiff testified that in December 2002 he complained to the commanding officer of PSA #7 that plaintiff was being stigmatized and ostracized because he was gay. According to plaintiff, in response to that complaint the commanding officer filed an OEEO complaint on plaintiff's behalf in December 2002 or January 2003. Plaintiff testified that he has not been sent to PSU in his time at PSA #7. Plaintiff also testified that he has not experienced further harassment at PSA #7.

  In addition to the above facts, plaintiff has submitted on the current motion an affidavit from Frances DeBenedictis, who is identified as an expert on the NYPD's policies with respect to sexual orientation and sexual identity. DeBenedictis states in the affidavit that hostility toward gay and lesbian police officers is prevalent in the NYPD, and concludes that plaintiff experienced harassment based on his sexual identity, and retaliation for complaining about the harassment. Plaintiff proffers the DeBenedictis affidavit primarily in support of his claims against the City of New York. Defendants have raised objections to the admissibility and relevance of much, if not all, of the DeBenedictis affidavit. DeBenedictis's conclusions and defendants' objections to them will be discussed in greater detail below.

  CAUSES OF ACTION

  It is well to set forth what plaintiff's claims are at this stage of the litigation. It should be noted that the scope and character of plaintiff's claims have shifted substantially from what is set forth in the amended complaint, and even changed substantially in the course of briefing on the current motion.

  The amended complaint states causes of action under 42 U.S.C. § 1983 against the individual defendants as well as against the City of New York. Plaintiff alleges that he suffered retaliation for speaking out against discrimination and other wrongful practices in the NYPD, in violation of his First Amendment rights. Plaintiff also alleges violations of the Fourteenth Amendment. As set forth in the amended complaint, plaintiff's Fourteenth Amendment claim alleges violations of substantive due process as a result of unwarranted referrals to psychological services, as described above. However, on the current motion, plaintiff advances a new theory, namely, that defendants discriminated against him on the basis of his sexual orientation by creating a hostile work environment, in violation of the Equal Protection Clause.

  In addition to his federal claims, plaintiff alleges a hostile work environment-sexual orientation claim under New York City and New York State human rights laws. He also alleges, under these same laws, claims of disparate employment treatment and "gender stereotyping." In a letter sent after the conclusion of all briefing, plaintiff stated that he seeks to assert a gender stereotyping claim under § 1983 as well.

  Although the amended complaint includes causes of action under the Equal Protection Clause of the New York State Constitution and the New York State Civil Service Law, as well as a common law claim for negligent infliction of emotional distress, plaintiff states in the briefing on the current motion that he is not pursuing those claims.

  With respect to both plaintiff's federal constitutional and remaining state causes of action, the amended complaint states claims for race discrimination. However, in the briefing on the current motion plaintiff raises no argument whatsoever with regard to that theory of discrimination. The Court concludes that plaintiff is no longer advancing a race discrimination claim.

  The Court considers that the following claims of plaintiff are presented in the present case. To the extent that they are not expressly pleaded in the amended complaint, the Court will consider that the pleading is further amended. 1. Claim of retaliation, brought under § 1983 and the First Amendment.

 

2. Claim of unwarranted referrals for psychological services, brought under § 1983 and the Due Process Clause of the Fourteenth Amendment.
3. Claim of hostile work environment because of plaintiff's sexual orientation, brought under § 1983 and the Equal Protection Clause of the Fourteenth Amendment.
4. Claim of gender stereotyping, brought under § 1983 and the Equal Protection Clause of the Fourteenth Amendment.
5. Claim of hostile work environment and disparate employment treatment because of plaintiff's sexual orientation, brought under the New York City human rights law.
6. Claim of gender stereotyping, brought under the New York State and New York City human rights laws.
7. Claim of retaliation, brought under the New York State and New York City human rights laws.
  It should also be noted that, in a letter to the Court dated December 23, 2003, plaintiff requested permission to file a sur-Reply to address evidence that was to be received by plaintiff subsequent to the filing of his opposition to defendants' motion. The Court granted plaintiff's request. On February 9, 2004 plaintiff again wrote to the Court, requesting permission to exceed the Court's ten-page memorandum limit in his sur-reply, and to respond to defendant's counter-statement of undisputed material facts. On February 17, 2004 the Court responded to plaintiff's request, directing that "no permission is granted beyond what has already been granted, except for length of briefs." Notwithstanding the Court's direction, plaintiff submitted a sur-reply brief of twenty-one pages, only one footnote of which addresses the new evidence that was the basis for allowing the sur-reply, and the rest of which is simply a further response to defendants' arguments in their reply brief on the current motion. Plaintiff's sur-reply is thus entirely beyond the scope of what plaintiff requested to file, and what the Court stated it would allow to be filed. The contents of the sur-reply brief will not be considered by the Court in deciding the current motion.

  DISCUSSION

  I. § 1983 Claims

  42 U.S.C. § 1983 provides in relevant part:

  Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . In order to establish liability under § 1983, a plaintiff must show that he or she was deprived of a federal right by a "person" acting under color of state law. Where a plaintiff seeks to hold a municipality liable under § 1983, there is an additional requirement that the plaintiff's constitutional deprivation be a result of a municipal policy, custom, or practice. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690 (1978).

  A. First Amendment Claim

  Plaintiff alleges that the individual defendants retaliated against him in violation of the First Amendment, when they allegedly harassed and punished him for reporting misconduct by his fellow police officers. Plaintiff also alleges that the NYPD had a policy, custom, or practice of encouraging retaliation against officers who violate a code of silence regarding misconduct within the department, known as the "blue wall" of silence.

  A plaintiff bringing a First Amendment retaliation claim must initially demonstrate by a preponderance of the evidence that he engaged in "protected" speech, that he suffered an adverse employment action as a result of engaging in that speech, and that there was a causal connection between the speech and the adverse employment action. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). The determination of whether speech is protected is a question of law, not of fact. Connick v. Myers, 461 U.S. 138, 147-48 n. 7 (1983). Speech is considered "protected" if it may be fairly characterized as commenting on a matter of public concern, in light of the "content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48. Speech of public concern does not generally include comments relating to "internal personnel disputes and working conditions." Brennan v. Straub, 246 F. Supp. 2d 360, 365 (S.D.N.Y. 2003). In this respect, it should be emphasized that a First Amendment retaliation claim is narrower in scope than a Title VII retaliation claim in that, for purposes of a First Amendment retaliation cause of action, complaints about individual acts of discrimination or harassment are not generally deemed to be of "public concern." Compare, e.g., Salpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir. 1993) (sexual harassment complaint not protected speech where it was "personal in nature and related to her own situation" rather than alleging "system-wide" discrimination), and Walker v. New York City Transit Authority, 99 Civ. 3337, 2001 WL 1098022, at *12 (S.D.N.Y. Sept. 19, 2001) (same), with Wise v. New York City Police Department, 928 F. Supp. 355 (S.D.N.Y. 1996) (sexual harassment complaints matters of public concern where complaints pertained to plaintiff and other women in police department).

  Plaintiff relies on the entire history, set forth above, of informal and formal complaints of discrimination to establish that he engaged in protected speech. In particular, in his opposition to defendants' motion, plaintiff states that the following acts constituted protected speech that resulted in retaliation from defendants: his OEEO and EEOC complaints regarding the Police Academy's failure to accommodate his needs with respect to the running requirement; his September 1999 complaint in the 73rd Precinct regarding Officer Zafrani; his complaints about harassing graffiti on November 28, 2000, August 14, 2001, and October 15, 2001; his January 16, 2001 complaint regarding a referral to psychological evaluation; his October 8, 2001 complaint about Torchio's conduct during the Pearson arrest; and his continuing complaints about unfair work assignments, isolation, and harassment he experienced in the department.

  With respect to plaintiff's complaints regarding the Police Academy run requirement, graffiti at PSA #3, his January 16, 2001 complaint regarding PSU referrals, and his repeated complaints about unfair work assignments and conditions, it is clear that these statements do not constitute protected speech in a First Amendment context. This is because in each instance plaintiff's complaints concerned solely his own employment situation. While the complaints did allege discrimination, they made no mention of systemic, pervasive misconduct; rather, they pertained only to particular individual incidents pertaining to plaintiff. As the above-cited cases make clear, such complaints cannot be categorized as "matters of public concern" under the First Amendment.

  Plaintiff's complaint about Zafrani's behavior at the 73rd Precinct, and his OEEO complaint about Torchio at PSA #3, merit closer analysis. With regard to the Zafrani complaint, plaintiff contends that he raised "matters of public concern" to Captain McDermott when he alleged that Zafrani and the other officers in the patrol car on September 4, 2001 were initiating improper and discriminatory searches. However, plaintiff concedes that he did not raise the issue of the propriety of the searches until after McDermott questioned him regarding allegations that plaintiff had made racially charged and threatening remarks to Zafrani. Plaintiff testified as follows:

Q: Did you report this to anyone?
A: Yes, I reported it to my supervisor. They were more concerned about the words that I used.
Q: Who did you report it to?
A: As a matter of fact, I didn't report it. During the investigation, after it was reported to the supervisor that I used the words, during the investigation I told him about it.
Q: Who did you tell then?
A: Captain McDermott
Q: And you told him this in the course of your investigation about your "white boy" comment?
A: Yes.
(Tr. 90:2)
  While in the abstract, the issue of whether police officers were conducting searches on a discriminatory basis may be one of public concern, plaintiff's comment was made in the context of an investigation into his own statements against Zafrani. Plaintiff raised the issue of the searches only after being confronted with accusations regarding his improper comments, and apparently did so as a matter of explanation for those comments. Given this context, the Court concludes that plaintiff's statement was "calculated to redress personal grievances," rather than made for a "broader public purpose." Iannillo v. County of Orange, 187 F. Supp. 2d 170, 181 (S.D.N.Y. 2002).

  With respect to plaintiff's complaint regarding Torchio, the Court notes that plaintiff does make allegations in the instant action that Torchio ordered him to strip search a prisoner in contravention of departmental regulations. If this had been the subject of plaintiff's complaint on October 8, 2001, plaintiff's speech may have been protected by the First Amendment. However, plaintiff's October 8 OEEO complaint contained allegations solely relating to Pearson's harassment of plaintiff and Torchio's alleged encouragement of that harassment. Neither the complaint itself, nor the narrative apparently written by plaintiff and attached to the OEEO complaint, makes any mention of any order by Torchio to strip search the prisoner. Thus, along with all of plaintiff's other complaints regarding his working conditions in various NYPD posts, the October 8 OEEO complaint pertained exclusively to plaintiff's own employment situation, and was not speech "of public concern."

  The Court concludes that plaintiff has failed to raise triable issues of fact in his First Amendment claim. B. Fourteenth Amendment Claims

  1. Substantive Due Process Claim

  A substantive due process claim under the Fourteenth Amendment may lie where a public employee's interest in his good name or reputation is impaired by publication of false stigmatizing material in conjunction with some other government action, such as termination or demotion of the employee. See Paul v. Davis, 424 U.S. 693, 708-10 (1976). The Second Circuit has clarified that a public employee's liberty interest is impaired only where his professional reputation or competence is impugned "in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his or her profession." Donato v. Plainview-Old Bethpage Central School District, 96 F.3d 623, 630-31 (2d Cir. 1996).

  Defendants argue that plaintiff has failed to raise a triable issue as to any action by defendants that created a "significant roadblock" for plaintiff's continued employment with the NYPD. Conceding for purposes of the motion that the referrals to PSU may have stigmatized plaintiff, defendants note that after each referral plaintiff was found fit to return to duty, and argue that plaintiff has failed to point to any adverse effect on his NYPD career. Plaintiff effectively raises no argument in opposition to defendants' contentions in this regard. Moreover, the Court is in agreement with defendants that plaintiff has failed to point to any significant employment consequences to his referrals to PSU. Therefore, the Court concludes that no triable issues have been raised with regard to plaintiff's substantive due process claim.

  2. Hostile Work Environment Claim

  It is now necessary to deal with plaintiff's claim that he was a victim of a hostile work environment based upon his sexual orientation in violation of the Fourteenth Amendment. The Court notes for the sake of clarity that, for reasons that are not entirely clear, plaintiff does not, as he does under the state and city human rights laws, allege a federal claim of disparate treatment on the basis of sexual orientation.

  The courts utilize a Title VII framework, combined with the Equal Protection Clause's requirement of intentional discrimination, to analyze hostile work environment claims brought under § 1983. Thus, plaintiff must show that defendants engaged in intentional discriminatory conduct that created an environment of discriminatory harassment that was "sufficiently severe or pervasive" to alter the conditions of plaintiff's employment. See Lange v. Town of Moore, 213 F. Supp. 2d 411, 423 (S.D.N.Y. 2002); Cohen v. Litt, 906 F. Supp. 957, 963 (S.D.N.Y. 1995); see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

  Plaintiff argues that the "totality of circumstances" detailed above constituted pervasive harassment on the basis of his sexual orientation, rising to the level of a hostile work environment. Additionally, plaintiff argues that the October 6, 2001 occurrences surrounding the arrest of Pearson, by themselves, were sufficiently severe to alter the conditions of his employment.

  The Court will assume, without deciding, that plaintiff may have raised triable issues as to whether the totality of the circumstances he experienced up to the time of his transfer to PSA #7 constituted a hostile work environment. As has already been stated, plaintiff testified that the harassment that he experienced ended when he transferred to PSA #7.

  However, in addition to establishing that a hostile work environment existed, plaintiff must raise triable issues as to the individual responsibility of each of the defendants that he seeks to hold liable. It is, of course, the case that an individual may only be held liable under § 1983 if that individual is personally involved in the alleged constitutional deprivation. See Back, 365 F.3d at 127. Such personal involvement may be demonstrated by evidence that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.
  Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Therefore, the Court must assess plaintiff's allegations with respect to each specific defendant, to determine whether liability under § 1983 may lie as to each of them.

  Plaintiff's allegations concerning the actions of Torchio consist of the following: that Torchio repeatedly changed plaintiff's patrol assignments from more-desirable to less-desirable posts, that Torchio made a false report of a comment by plaintiff in retaliation for plaintiff's complaint regarding his assignments, and that Torchio encouraged Pearson's harassment of plaintiff and forced plaintiff to conduct a strip search of Pearson. Plaintiff also alleges that Torchio may have had a role in filing an Internal Affairs complaint against plaintiff following the incident.

  Even resolving all factual disputes regarding these allegations in favor of plaintiff, it cannot be said that Torchio created a hostile work environment. In reaching this conclusion the Court is mindful of the fact that plaintiff, after extensive discovery, is able to rely on little more than conclusory allegations and subjective interpretations to make his case. With respect to plaintiff's allegations regarding his patrol assignments, he is unable to point to any evidence — beyond his assertion that he checked the daily patrol assignment postings — that other officers consistently received more favorable posts than he. There appears to be no evidence at all, aside from plaintiff's assertion in this regard, that Torchio deliberately altered his assignments. Further, even assuming the allegation to be true, plaintiff testified that other officers were assigned — at least some times — to the same "unfavorable" patrol posts of which he complains. Plaintiff also testified that he did occasionally receive desirable assignments, such as patrol cars, and that all the supervisory officers — including Torchio, Daniels, and Lambert — gave him these assignments with approximately the same frequency — approximately once or twice a month. In other words, plaintiff has pointed to no evidence that he was treated substantially differently from other officers, or that Torchio treated him differently than other supervisors did.

  As for plaintiff's related allegation that Torchio retaliated against him by making a false allegation to Captain McDermott, assuming this to be true it does not, alone or in combination with the other actions taken by Torchio, constitute severe or pervasive harassment that is actionable under Title VII. Furthermore, plaintiff does not even contend that Torchio made the false accusation on the basis of plaintiff's sexual orientation — which is the basis of the hostile work environment claim — but rather because plaintiff complained about his patrol assignments. Therefore, there is no basis for concluding that this alleged instance of harassment was motivated in any way by Torchio's resentment toward plaintiff as a gay man.

  As for the Pearson incident, plaintiff's allegation that Torchio instructed Pearson to harass plaintiff is based exclusively on Pearson's alleged statement to plaintiff, "They told me to do it." Plaintiff's allegation is pure speculation, and is contradicted by the OEEO investigation testimony of Bovary. Plaintiff's allegation that Torchio may have made an anonymous Internal Affairs complaint against him is similarly without any supporting evidence. Such conjecture does not raise a triable issue of fact as to Torchio's role in the harassment plaintiff endured from Pearson.

  Regarding the alleged strip search, plaintiff's own testimony does not state that Torchio "ordered" such a search, but rather states that Torchio's instructions to plaintiff implied that such a search should be conducted. Additionally, as far as Torchio's motive for ordering the strip search goes, the Court observes that plaintiff pointed to no evidence in his deposition or elsewhere that Torchio knew plaintiff to be gay. Plaintiff states only that he "assumed" Torchio knew this fact. In any case, assuming plaintiff's allegations concerning the search to be true — that Torchio instructed plaintiff to conduct a strip search in order to mock his sexual orientation — the Court concludes that the single incident cannot be considered so severe as to rise to the level of a constitutional violation. Thus, the Court concludes that plaintiff has not raised triable issues regarding Torchio's creation of a hostile work environment in violation of the Equal Protection clause.

  As for Bamburg and Williams, plaintiff points to no conduct by them that could be conceived as "personal involvement" in the creation of a hostile work environment. The evidence, as set forth above, demonstrates that Bamburg and Williams were rarely personally involved in any of the incidents that occurred during plaintiff's time at PSA #3. When they were involved, the evidence does not disclose the creation or perpetuation of any harassing conduct by them. Plaintiff relies heavily on the numerous referrals to PSU, some of which were made or approved by Bamburg or Williams, as evidence of harassment based on his sexual orientation. However, the record is devoid of evidence — aside from plaintiff's subjective view — that these referrals were invidious or in any way motivated by plaintiff's actual or perceived sexual orientation. On the occasion of each referral it is clear that plaintiff's supervisors had information — whether accurate or not — that might cause concern for the well-being of a police officer, including episodes of crying or extreme anger or frustration. Moreover, plaintiff is unable to point to any way in which these referrals negatively impacted his employment. Plaintiff alleges that the referrals became part of his employment file and that there is "stigma" attached to such referrals. This may be the case. However, a generalized allegation of "stigma" with no accompanying evidence that plaintiff was personally affected by any such stigma, is not evidence of an alteration of plaintiff's working conditions sufficient to establish a hostile work environment. Nor can it be said that Bamburg or Williams failed to remedy complaints by plaintiff or in any way contributed to a hostile work environment perpetuated by other employees. As for Bamburg, the record in fact demonstrates that he followed up with plaintiff following the second graffiti incident, and that when, subsequently, plaintiff accused Bamburg of retaliating against him, Bamburg himself filed an OEEO complaint on behalf of plaintiff. The only instance of harassment that can be traced to Williams is plaintiff's allegation that Williams ignored his complaint that a 60-day foot post was excessive and retaliatory. Aside from the fact that this allegation appears for the first time in plaintiff's lengthy affidavit on this motion, and is not mentioned in the complaint or in plaintiff's deposition, the allegation could not conceivably constitute harassment rising to the level of a hostile work environment. Thus, the Court concludes plaintiff has raised no triable issue as to Bamburg's or Williams's liability under the Equal Protection clause. Finally, the Court turns to plaintiff's allegations regarding the City of New York's liability. As stated above, in order for plaintiff to hold the City of New York under § 1983, plaintiff must demonstrate that a policy, custom, or practice of the NYPD caused the constitutional deprivations alleged. Monell, 436 U.S. at 690. The policy, custom, or practice need not be formal or codified; "[s]o long as the discriminatory practices of city officials are persistent and widespread, they `could be so permanent and well settled as to constitute a custom or usage with the force of law,' and thereby generate municipal liability." Sorlucco v. New York City Police Department, 971 F.2d 864, 870-71 (2d Cir. 1992) (quoting Monell, 436 U.S. at 691). Where the discriminatory practices are attributable to subordinate officers rather than to municipal policymakers themselves, the acts of the subordinates must be "so manifest as to imply the constructive acquiescence of senior policy-making officials." Id. at 871.

   Plaintiff does not point to any official policy of the NYPD that he claims caused his alleged constitutional deprivations. Rather, plaintiff appears to argue that the customs and practices of the NYPD perpetuate an environment in which the harassment of officers based on their sexual orientation is encouraged, or at least condoned. However, the evidence does not bear out the existence of "persistent" or "widespread" harassment on the basis of sexual orientation. For example, plaintiff testified that, of all the supervisors at PSA #3, Torchio was the only individual who allegedly changed plaintiff's assignments. Additionally, the uncontradicted testimony of other supervisory officers, including Greaves, Bamburg, and Williams, establishes that there was a consistent degree of responsiveness by those supervisors to plaintiff's complaints of discrimination. This includes the investigations conducted and OEEO complaints filed on behalf of plaintiff in connection with the graffiti episodes.

   Plaintiff argues that the responsiveness of his supervisors was followed upon by referrals to PSU, which referrals plaintiff alleges were both retaliatory and harassing. However, as stated above, plaintiff has proffered no facts to refute the objectively reasonable motivations behind those referrals, including that on each occasion plaintiff was observed to be visibly upset and/or crying. Moreover, the record contains no evidence, beyond plaintiff's bare assertion of the "true" discriminatory motivation behind those referrals, to indicate that the NYPD had a practice or custom of using PSU referrals to harass or stigmatize officers. Nor has plaintiff pointed to any evidence that referral to PSU has negatively impacted his career with the NYPD. In the absence of such evidence, it is not for this Court to conclude that a police department is not entitled to direct its officers — who work in high-stress situations and are entrusted with lethal weapons — to seek psychological assistance when they appear to be troubled.

   As has already been noted, plaintiff attempts to place reliance on the DeBenedictis affidavit to establish the NYPD's custom or custom of condoning harassment of police officers based on sexual orientation. DeBenedictis was a NYPD officer for twenty years, until she retired from the force in 2001. She concludes in her affidavit that "hostility towards gay and lesbian persons is prevalent" within the NYPD, and that "Officer Alexander was experiencing harassment at PSA #3 because he was perceived to be a gay man and in retaliation for filing OEEO complaints." (Paras. 22 and 32)

   Setting aside the question of whether the DeBenedictis affidavit is even conceivably admissible as an "expert report," the bulk of the affidavit is clearly either inadmissible hearsay, or legal conclusions that are both improper and irrelevant. Thus, DeBenedictis describes dozens of examples of alleged harassment suffered by other gay and lesbian NYPD officers — all of which examples are second hand, and without any indication as to when the incidents occurred. DeBenedictis also gives examples of harassment that she allegedly personally experienced as an NYPD officer. However, there is little, if any, basis upon which to conclude that this is probative of plaintiff's situation. Again, there is no time frame stated for these instances of harassment. Additionally, DeBenedictis is a white, female lesbian who for much of her career worked in training and internal investigation units within the NYPD; by contrast, plaintiff is an African American gay man who, at all times relevant to the instant action, was a relatively new police officer located in various precincts. In other words, aside from DeBenedictis's bare assertion that the common thread between her experience and plaintiff's is that they were both gay NYPD officers, there is no basis for the Court to find that her experiences are particularly probative of plaintiff's.

   Nor is there any basis to determine that DeBenedictis's conclusions with respect to the NYPD's practice of condoning sexual orientation harassment is based on "expertise" of any sort. DeBenedictis's subjective assessment of the work environment of the NYPD and her personal experiences as an officer there are insufficient bases on which to qualify her to draw the sweeping conclusion she does about defendants' conduct vis-a-vis plaintiff. For all of these reasons, the Court considers the DeBenedictis affidavit to be not probative of the question of whether the NYPD maintained a practice or custom of sexual orientation-related harassment.

   Therefore, the Court concludes that plaintiff has failed to raise triable facts as to the City's liability for the creation of a hostile work environment in violation of the Equal Protection Clause.

   3. Gender Stereotyping Claim

   Plaintiff alleges that defendants violated his right to equal protection of the laws by subjecting him to discrimination on the basis of his gender. In particular, plaintiff advances a gender stereotyping theory, arguing that defendants treated him disparately from other officers based on their perception that he was insufficiently "masculine."

   A claim of discrimination in employment brought under the Equal Protection Clause is analyzed under essentially the same rubric as a Title VII claim. See Sorlucco v. New York City Police Department, 888 F.2d 4, 6-7 (2d Cir. 1989); Mack v. Port Authority of New York and New Jersey, 225 F. Supp. 2d 376, 385 (S.D.N.Y. 2002). Thus, as in a Title VII case, a plaintiff seeking to make out a prima facie case of discrimination must prove, among other things, that he or she suffered an adverse employment action. Id. at 385. As has already been stated with respect to plaintiff's retaliation claim, plaintiff has failed to raise triable issues as to this point.

   In addition, however, the Court also concludes that plaintiff has failed to raise triable issues as to his claim that gender stereotyping motivated defendants' actions in connection with his employment. In this regard, plaintiff relies primarily on the authority of the Second Circuit's recent decision in Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2d Cir. 2004). The plaintiff in Back was a former school counselor who had been denied tenure, and then was terminated, shortly after she gave birth to her first child. Back alleged that the defendants, who included the school district and her former supervisors, made those decisions on the basis of an improper gender stereotype — namely, that Back could not excel both at parenting and her career. Back claimed that this stereotyping, and her resulting tenure denial and termination, violated the Equal Protection Clause of the Fourteenth Amendment.

   In reviewing the district court's grant of summary judgment to the defendants, the Court of Appeals framed the issues presented by the case as "whether stereotyping about the qualities of mothers is a form of gender discrimination, and whether this can be determined in the absence of evidence about how the employer in question treated fathers." Id. at 113. The court answered both questions in the affirmative. In so holding, the court relied upon an extensive record of remarks made by Back's supervisors that questioned Back's ability to continue her high job performance while raising her child. The record also contained evidence that, despite the defendants' contentions that Back's performance was unsatisfactory, defendants had given Back outstanding performance reviews up until shortly before her tenure review. There is no comparable evidence that gives rise to an inference of discrimination on the basis of gender stereotyping in plaintiff's case. It is true that on several instances plaintiff was referred to PSU on the basis of supervisors' observations of plaintiff crying, or otherwise displaying agitation and emotion. The record also, however, contains repeated assertions by defendants in their depositions that they made those referrals out of concern for plaintiff's safety and well-being. It may be the case that in some circumstances such assertions are merely a cover for, at best, paternalism, and at worst invidious discrimination. Here, however, plaintiff has adduced no evidence, beyond his own assertions of belief, that defendants were motivated by animus on the basis of his gender. It is well to observe that in the context of policing, the ability of officers to react in a calm and capable fashion to emotionally charged situations is certainly an important job function. This Court is not willing to say that in such a professional context references for psychological evaluation of a male officer who has been observed to be having "emotional" and "teary" reactions to stressful situations is per se evidence of invidious gender stereotyping.

   The conclusions contained in the DeBenedictis affidavit, relied upon by the plaintiff, do not persuade the Court otherwise. The Court has already set forth in its discussion of plaintiff's hostile work environment claim the reasons why it does not consider the DeBenedictis affidavit to be probative as an expert report, and those reasons hold for this claim as well. The affidavit contains no basis for DeBenedictis's statement that "[m]ale police officers . . . are defined by masculine stereotypes and characteristics," and that "Alexander would not be considered `suitable for police work' if he was perceived to be weak, effeminate and emotional." DeBenedictis's conclusory assertion in this regard cannot raise a triable issues as to plaintiff's claim.

   Therefore the Court concludes that plaintiff has failed to raise triable issues of fact as to defendants' discrimination against him on the basis of gender stereotyping in violation of the Equal Protection Clause.

   II. State Law Claims

   The Court observes that plaintiff's state law claims are before this Court on the basis of supplemental jurisdiction, which is wholly derivative of this Court's jurisdiction over his federal law claims. Because the Court believes that all of plaintiff's federal law claims must be dismissed, there is a question as to whether it is appropriate to continue to exercise subject matter jurisdiction over plaintiff's state law claims. See, 28 U.S.C. § 1367(c)(3). Nevertheless, in the interest of efficiency, the Court believes that it is prudent to discuss the merits of plaintiff's state law claims on the current motion.

   Plaintiff asserts state law claims under the New York State Human Rights Law, N.Y. Exec. Law § 296 (McKinney 2001), and New York City Human Rights Law, N.Y. City, N.Y., Admin. Code § 8-101. With respect to plaintiff's claim under the New York City statute, he alleges that defendants discriminated against him and created a hostile work environment on the basis of his gender and sexual orientation. Under the New York State statute, plaintiff asserts disparate treatment and hostile work environment claims as well, but only on the basis of his gender.*fn4 Plaintiff also claims under both statutes that he suffered retaliation for complaining about the discrimination he experienced.

   As an initial matter, plaintiff's claims under the New York State and New York City statutes cannot be asserted against the City of New York due to his failure to comply with state law notice of claim procedures. The New York General Municipal Law states that "[n]o action or special proceeding shall be prosecuted or maintained against a city . . . for personal injury . . . alleged to have been sustained by reason of the negligence or wrongful act of such city . . . or employee thereof . . . unless" a notice of claim is served upon the city within 90 days of the event giving rise to the claim, and the complaint in the action is filed within one year and 90 days of that event. N.Y. Gen. Mun. L. §§ 50-e(1)(a) & 50-I(1) (McKinney 1999). This notice of claim requirement is a matter of state substantive law that federal courts are required to apply to pendent state claims. See Felder v. Casey, 487 U.S. 131, 151 (1988); Promisel v. First American Artificial Flowers, 943 F.2d 251 (2d Cir. 1991). Furthermore, the New York notice of claim requirement applies both to common law causes of action, and to actions founded upon violations of state constitutional provisions. See 423 South Salina Street, Inc. v. City of Syracuse, 510 N.Y.S.2d 507, 489 n. 5 (1986). Failure to comply with the notice of claim requirement mandates dismissal of the action with prejudice. See Parochial Bus Systems v. Board of Education of the City of New York, 60 N.Y.2d 539, 548 (1983).

   According to October 23, 2003 Declaration of Michael DiChiara, submitted by defendants on the current motion, DiChiara conducted an electronic search of New York City Comptroller's Officer records for a Notice of Claim filed by plaintiff. DiChiara states that, according to the database, there is no record of plaintiff having filed a claim. (Paras. 4 and 5) Plaintiff does not refute in his opposition to defendants' motion that he did not file a notice of claim with the City of New York. Therefore, plaintiff's state law claims against the City must be dismissed.

   As for the individual defendants, liability will lie against them under the New York State and New York City human rights laws if they personally engaged in discrimination against plaintiff in connection with his compensation or as to his terms, conditions or privileges of employment, because of plaintiff's gender, or, under the New York City statute, because of plaintiff's sexual orientation.*fn5 See N.Y. Exec. L. § 296(1)(a); N.Y. City, N.Y., Admin. Code § 8-107. Courts analyze claims under both of these statutes using the standards applied to Title VII disparate treatment, hostile work environment, and retaliation claims. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996).

   With regard to plaintiff's disparate treatment and retaliation claims under both the state and city statutes, regardless of plaintiff's theory of discrimination he must demonstrate as a prima facie matter that he was subjected to an adverse employment action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (disparate treatment); Gordon v. New York City Board of Education, 232 F.3d 111, 116 (2d Cir. 2000) (retaliation). The Second Circuit has explained that an adverse employment action is a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000). Examples of such a materially adverse change are termination, demotion, decrease in wage or salary, a less distinguished job title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to the situation. Id.

   Plaintiff relies upon his repeated referrals to PSU as establishing an adverse employment action. However, plaintiff is unable to point to any evidence that the PSU referrals created any "material change in the terms and conditions of his employment." At the conclusion of each PSU evaluation plaintiff was found fit to return to duty. Although plaintiff argues that referral to PSU carried a "stigma" within the NYPD, the record does not reflect any example of plaintiff suffering from such stigma, in terms of denial of opportunities for advancement within the NYPD. Moreover, as the Court has already stated, the record reflects that each referral was occasioned by specific rationales for believing that plaintiff was experiencing some level of emotional trauma or anxiety. Under such circumstances, the Court finds that plaintiff's repeated referrals to PSU did not constitute adverse employment actions. Cf. Bazile v. City of New York, 215 F. Supp. 2d 354, 386 (S.D.N.Y. 2002) (referral of police officer to psychological services did not constitute adverse employment action).*fn6

   Because plaintiff has raised no triable issue regarding any adverse employment action, no disparate treatment or retaliation claims may lie under the New York State or New York City human rights laws against any individual defendants. Additionally, with respect to plaintiff's gender-based disparate treatment claims, his theory under the city and state laws appears to be identical to that discussed with respect to his federal gender stereotyping claim. For the reasons set forth in the discussion of that claim, the Court concludes that plaintiff's gender-based city and state law claims must also fail.

   With respect to plaintiff's hostile work environment claims under the state and city statutes, the Court concludes that there are no triable issues of fact for the same reasons that are stated above with respect to plaintiff's federal hostile work environment claim. CONCLUSION

   Defendants' motion for summary judgment is granted in its entirety. The parties should settle an appropriate order.

   SO ORDERED.


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