The opinion of the court was delivered by: DAVID TRAGER, District Judge
Plaintiff Robert W. Damino, Jr. ("Damino" or "plaintiff")
brings this action against the City of New York ("the City").
Damino contends that he was denied employment as a police officer
in the New York City Police Department ("NYPD") because of racial
discrimination, and in violation of state merit hiring
Presently before the Court is a motion for summary judgment
pursuant to Fed.R. Civ. P. 56(c). The City contends that
Damino's claims are time-barred, there is no triable issue of
fact regarding his claim of discrimination, and Damino was denied
employment for legitimate, nondiscriminatory reasons (he was
In 1991, Damino submitted an application to take a civil
service examination for the position of police officer in the New
York City Housing Authority Police Department.*fn1 (Def.'s
Ex. A at 77).*fn2 On March 21, 1992, Damino took Examination
No. 1059, an open competitive examination. (Def.'s Ex. B at 2).
In September 1992, plaintiff received notice that his test
score on the exam was 96.666. (Def.'s Ex. C). The notice
explained that passing scores for Exam No. 1059 were contained in
one of four bands, that Band 1 contained scores from
93.000-103.333, and that candidates in Band 1 would be called
before candidates in Bands 2 through 4. (Def.'s Ex. D). The
notice also informed Damino that "candidates achieving scores
within the band were given randomly selected list numbers. Your
list number determines the order in which you will be called for
appointment." (Id.) He was told he was assigned list number
3334. (Def.'s Ex. C).
All candidates who passed the exam were subject to a
pre-employment background investigation to determine their
character and medical and psychological suitability to be a
police officer. Sometime around March 1995, plaintiff received a
notice that he was being called for a physical examination in
connection with his candidacy to become a police officer. (Def.'s
Ex. A at 98).
On May 16, 1995, Damino was interviewed by Kirsten Wood as part
of the pre-employment background investigation to determine
plaintiff's psychological suitability for employment as a police
officer. In her report, dated May 16, 1995, Wood recommended that
Damino be found psychologically unsuitable. (Def.'s Ex. E at 2).
On May 18, 1995, Damino was sent a "Notice of Determination,"
informing him that he had been disqualified because he was deemed
to be psychologically unsuitable for the position of police
officer with the New York City Housing Authority Police
Department.*fn3 (Def.'s Ex. F). On May 26, 1995, Damino
filed an appeal with the New York City Civil Service Commission
("CSC") contesting the NYPD Psychological Service's decision to
disqualify him. (Def.'s Ex. G).
At Damino's request, George A. Giuliani, Ph.D., submitted a
letter dated April 15, 1996 in support of plaintiff's appeal of
his psychological disqualification. (Def.'s Ex. H at 2). Dr.
Giuliani disagreed with Wood's findings. The NYPD retained a
consultant psychologist, Yvonne Roundtree, Ph.D., to review
Damino's appeal file. She recommended that Damino receive an
appeal interview by another psychologist. (Def.'s Ex. I at 2).
Thereafter, the NYPD retained a second consultant psychologist,
Michael Stern, Ph.D., to review plaintiff's appeal file and
conduct an appeal interview if appropriate. Dr. Stern reviewed
the file and concluded that an appeal interview was not
appropriate, and he recommended that the original
disqualification determination be sustained. (Id.)
On November 12, 1996, the NYPD Psychological Services notified
the CSC and Damino that its consultant psychologist recommended
that the original disqualification determination be sustained.
(Def.'s Ex. J). Damino was informed over the telephone by the
NYPD Psychological Services Unit that "no further appeals
regarding [his] psychological suitability would be possible."
(Pl.'s Resp. to Def.'s Local Rule 56.1 Statement ¶ 15, Pl.'s Ex.
4 at 237).
On or about December 27, 1996, the civil service eligible list
for the position of police officer with the New York City Housing
Authority Police Department under Examination Number 1059
expired.*fn4 The last list number reached for consideration
on the eligible list for Exam No. 1059 was 2639, so Damino's list
number of 3334 was not reached prior to the list's expiration.
(Def.'s Ex. K at 2).
On February 11, 1997, Damino filed a Notice of Claim with the
Office of the New York City Comptroller. Damino claimed that
there was a "violation of civil rights, violation of
constitutional right of equal protection due process [sic.],
racial discrimination in fraudulently rejecting claimant from
NYPD,*fn5 abuse of power, practicing psychology without a
license, filing a false instrument." (Id.) He also claimed that
his rejection from the NYPD "was based on a bogus and fraudulent
psychological report made by an unqualified individual." (Def.'s
Ex. L at 1).
On December 4, 1998, Damino commenced an action in New York
Supreme Court against Dr. Michael Stern, Dr. Eloise Archibald,
and Kirsten Wood alleging that these defendants were negligent in
administering the psychological evaluations of plaintiff in
connection with his application to become a police officer.
(Def.'s Ex. M). On September 17, 1999, Judge O'Connell granted
the defendants' motion to dismiss the complaint against them ...