United States District Court, E.D. New York
ROBERT W. DAMINO, JR., Plaintiff,
THE CITY OF NEW YORK, Defendant.
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 as
time-barred. (Def.'s Ex. N at 4). On September 13, 2000, the
order was affirmed by the Appellate Division. (Def.'s Ex. O).
On June 18, 1999, Damino's appeal to the CSC concerning his
psychological status was dismissed. (Def.'s Ex. K at 1). The CSC
found the appeal was moot, because the civil service eligibility
list had expired. (Id. at 2). Although the merits of the appeal
had not been reached, Damino's disqualification was vacated and
he was not required to list the disqualification on any
subsequent exams. (Id.)
On June 25, 1999, Damino commenced this action against the City
of New York ("the City"), the New York City Department of
Personnel, the New York City Police Department ("NYPD"), Kenneth
Dodson, "John" DeLeon, Kirstin Wood, and Michael Stern. Damino
characterized the action as one for "fraud, racial
discrimination, denial of due process and equal protection under
the Fifth and Fourteenth Amendments to the United States
Constitution, 42 U.S.C. Sections 1981, et seq.,
42 U.S.C. Sections 2000e, et seq., Article v, Section 6 of the New York
State Constitution and New York Civil Service Law, Section 61,
and New York Executive Law, Section 296(1)(a)." (Def.'s Ex. P ¶
1). Damino contended that Dodson and DeLeon, who were responsible
for the character investigation, engaged in a course of improper
conduct designed to prevent his appointment as a police officer.
(Def.'s Ex. P ¶ 14). Damino charged that Dodson and DeLeon
imposed an unfair burden on him by asking for his parents' tax
returns and for asking him to furnish a police report to which he
could not legally gain access. (Id. ¶¶ 15, 29). Furthermore,
Damino alleged they both stated that "he ain't getting in."
(Id. ¶¶ 27, 31). Damino alleged that DeLeon and Dodson, both of
whom are black, took steps to preclude Damino from securing
employment as a police officer because Damino is a white male.
(Id. ¶¶ 13, 24).
Damino alleged that during his interview with Wood to determine
his mental fitness to be a police officer, she constantly
interrupted his responses to her questions. (Id. ¶ 34). Damino
alleged that Wood "deliberately distorted and even fabricated
many of [his] responses to her questions." (Id. ¶ 35). Damino
also contended that Wood continually interrupted and harassed him
while he was taking a written portion of the psychological
examination. Damino charged that Wood was motivated by gender
bias. (Id. ¶ 42). Damino did not allege, however, that Wood's
actions were racially motivated.*fn6
Damino charged that Stern, like Wood, failed to practice
psychology in a professional manner. (Id. ¶ 50). Specifically,
in sustaining Damino's psychological disqualification, Wood
allegedly ignored two written psychological examination results.
(Id. ¶ 49).
Plaintiff amended his complaint on October 15, 1999. Damino
added the charge that Wood knowingly filed a false written
instrument, in that she knowingly falsified and distorted his
responses to her questions. (Def.'s Ex. Q ¶ 39). Damino also
added that Stern did not examine or interview plaintiff. (Id. ¶
Damino also added the charges that "minority" candidates were
credited with higher scores because of their minority or
"disadvantaged" status. (Id. ¶ 53). Damino charged that he
would have been "called" for employment if candidates were ranked
solely on the basis of performance on the civil service
examination. (Id. ¶¶ 54, 55). Damino filed this complaint based
on a conversation he overheard between a black police officer and
black youth. Damino stated that the black police officer
encouraged the black youth to take the exam for becoming a police
officer as a scoring system was used that favored
minorities.*fn7 (Pl.'s Resp. to Def.'s Local Rule 56.1
Statement ¶ 23). Damino did not speak to the police officer nor
did he note the police officer's name. (Pl.'s Ex. 4 at
Defendants moved to dismiss the amended complaint in its
entirety. Defendants' motion was granted in part and denied in
part in an August 28, 2000 Memorandum and Order. Claims against
the NYPD and Department of Personnel (now the Department of
Citywide Administrative Services ("DCAS")) were considered to be
raised only against the City, since agencies of the City are not
suable entities. (Def.'s Ex. R at 2 n. 1). All of Damino's claims
against the individual defendants, under 42 U.S.C. § 1983 ("§
1983") and under state law, were dismissed as time-barred. (Id.
at 13, 20). Damino's Title VII claim against the individual
defendants and the City was dismissed as Damino failed to first
file a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC"), and he failed to receive a
"right to sue" letter from the EEOC. (Id. at 9-10).
Damino's § 1983 claim based on the exam scores was not
dismissed as time-barred as it was not clear when Damino knew or
should have known of the alleged score adjustment policy. (Id.
at 16). Damino's claims based on the exam scores and ranks of the
applicants, alleging violations of New York State Human Rights
Law ("NYSHRL") § 296(1)(a) and New York State Civil Service Law
("NYSCSL") § 61(1), also were not dismissed. (Id. at 21).
On September 6, 2001, Damino filed a second amended complaint.
Damino reiterated his allegations against Dodson, DeLeon, Wood,
and Stern. (Def.'s Ex. S ¶¶ 14, 17, 19). Damino also alleged that
he was not "called" for employment as a police officer (i.e., his
number on the eligibility list was never reached) because
minority candidates who actually scored lower than him on the
exam were ranked above him. (Id. ¶¶ 54, 68). They were
allegedly credited with higher scores, solely because of their
"minority" or "disadvantaged" status. (Id. ¶ 53).
Damino added an allegation that the City "adopted a method or
mechanism for assigning rank or list number to candidates who
took Exam No. 1059 in order to increase minority representation
on the eligibility lists and to improve the relative position on
those lists of minority candidates," and that this "conduct was
partially, completely or intentionally based upon race-conscious
decisions." (Id. ¶ 60). Damino alleged that the method used for
assigning list numbers was not utilized for a job-related
purpose, had the effect of making the ranking and/or list numbers
inconsistent with job-related criteria, and did not fairly
reflect the candidates' knowledge, skills, and abilities required
for the position of police officer. (Id. ¶¶ 62-64). He alleged
that the band system was "contrary to the creation and
implementation of a competitive, job-related exam, as required by
applicable federal and state laws and constitutions." (Id. ¶
65). These new charges were based on the statistical analysis of
Richard Reilly, Ph.D, retained by Damino as an expert
witness.*fn9 (Pl.'s Resp. to Def.'s Local Rule 56.1
Statement ¶ 25).
Damino's charges against the City's testing policy can be
summarized as follows:
1. Some minorities are credited with higher scores on
the exam solely by reason of their minority status.
(Def.'s Ex. S ¶ 53).
2. The ranking system is discriminatory as it takes
race into account. (Id. ¶ 60).
3. The method in which scores are banded and ranked
is in violation of merit hiring requirements. (Id.
Damino requests damages "for loss of wages, benefits,
and promotional opportunities, and for loss of future
salary and benefits" and punitive damages "to
compensate [him] for mental anguish, humiliation,
embarrassment, and emotional injury." (Def.'s Ex. S
The City asserts that it is entitled to summary
judgment on all of the plaintiff's claims because
Damino's claims are time-barred and, furthermore,
because Damino was not selected for the position of
police officer as he was psychologically disqualified
for the position and not because of his relative rank
on the civil service list. (Def.'s Reply Mem. of Law
in Further Supp. at 2).
Statute of Limitations
Damino commenced the instant action on June 25, 1999. (Id. at
7). As discussed in the August 28, 2000 Memorandum and Order, the
applicable statute of limitations for § 1983 and NYSHRL § 296
(1)(a) claims are three years. (Id. at 11, 19). The City argues
that all of plaintiff's claims are time-barred, contending that
his claims accrued in September 1992 when he was notified that
scores were banded and his list number was 3334. (Def.'s Mem. of
Law in Supp. at 6).
Under New York law, a cause of action accrues "when the claim
becomes enforceable, i.e., when all elements of the [claim] can
be truthfully alleged in a complaint." Snyder v. Town
Insulation, Inc., 81 N.Y.2d 429, 432, 615 N.E.2d 999, 1000,
599 N.Y.S.2d 515, 517 (1993) (citations omitted). In particular, a §
1983 cause of action against a municipality accrues when the
plaintiff" knew or should have known enough to claim the
existence of a `policy or custom' so that he could sue the
[municipality]." Pinaud v. County of Suffolk, 52 F.3d 1139 (2d
Cir. 1995). In September 1992, Damino had no reason to doubt that
the rankings were randomly assigned as explained in the "Notice
to Passing Candidates." Damino contends that he was on notice of
the allegedly discriminatory policy only when he overheard a
black police officer tell a black youth to take the police
officer exam as a scoring system was used that favored
minorities. (Pl.'s Resp. to Def.'s Local Rule 56.1 Statement ¶
23). He overheard this "shortly prior to the filling of" his
October 8, 1999 Amended Complaint. (Id). Although Damino offers
only vague and self-serving dates as to when he began to suspect
the City of secretly affording race-based hiring preferences to
minorities, the dates are within three years of the October 8,
1999 filing of the amended complaint, where Damino first alleged
the ranking system was racially discriminatory. Assuming
arguendo the existence of a racially discriminatory policy,
Damino has presented a genuine issue of fact as to when he knew
or should have known of that policy.
Although generally a claim of employment discrimination accrues
when the employer commits the allegedly discriminatory act, when
an employee is actively misled by the employer about the motive
for the action, and only later has reason to discover a
discriminatory motive, accrual may be delayed. See, e.g., Miller
v. International Telephone and Telegraph Corp., 755 F.2d 20, 24
(2d Cir. 1985); Reeb v. Economic Opportunity Atlanta, Inc.,
516 F.2d 924 (5th Cir. 1975). Here, the City informed Damino that the
list numbers of candidates within each band were randomly
selected. (Def't Ex. D). If the numbers were not in fact, random,
but rather assigned by some other algorithm that considered the
race of each applicant, then Damino was actively misled, and his
claim under NYSHRL for race discrimination should not be denied
Damino also alleges violations of N.Y. Const. art. 5, § 6 and
NYSCSL § 61(1). (Def.'s Ex. P ¶¶ 62-64, Ex Q ¶¶ 70-72, Ex. S ¶¶
85-87). A review of the actions of city agencies and officers to
determine whether their actions conformed to the state law is
conducted pursuant to Article 78 of the New York Civil Practice
Law and Rules. An Article 78 proceeding is the appropriate method
for presenting a claim that a denial of appointment resulted in a
violation of rights conferred by the merit and fitness clause of
the New York State Constitution or by State statute. Pauk v.
Board of Trustees, 111 A.D.2d 17, 20, 488 N.Y.S.2d 685, 688 (1st
Dep't 1985); aff'd 68 N.Y.2d 702, 497 N.E.2d 675,
506 N.Y.S.2d 308 (1986). See Moskowitz v. White, 182 A.D.2d 381, 382,
581 N.Y.S.2d 785, 786 (1st Dep't 1992) (where petitioner sought to
contest his ranking, four-month statute of limitations applied
and ran from date list was promulgated). The statute of
limitations for Article 78 proceedings is four months from the
date when the determination to be reviewed became final and
binding. N.Y.C.P.L.R. § 217.
The August 28, 2000, opinion found there was a factual question
as to when plaintiff knew or should have known about the banding
and ranking process. (Def.'s Ex. R at 17). Based solely on the
allegations in the complaint, it was "possible that Damino was
not aware of his rank on the appointment list and the ranking
procedures until April 23, 1999." (Id. at 17). However, the
evidence now makes it clear that in September 1992, Damino
received a "Notice of Results Card," specifying his test score
was 96.666, and his list number was 3334 (Def.'s Ex. C),
accompanied by a "Notice to Passing Candidates," explaining that
his test score was banded and that he received a randomized list
number. (Def.'s Ex. D). Thus, Damino had notice as early as
September 1992 that his rank on the eligible list would not be
based strictly on his actual test score. Therefore plaintiff's
claim that the method in which scores were banded and ranked
violated merit hiring requirements accrued in 1992. Thus, any
claim that Damino had under N.Y. Const. art. 5, § 6 and NYSCSL §
61(1) should have been brought within four months of September
1992. Accordingly, plaintiff's claims under N.Y. Const. art. 5, §
6 and NYSCSL § 61(1) are dismissed as time-barred.
New York State Human Rights Law Claim
Damino alleges the City denied him employment because of his
race, in violation of NYSHRL § 296(1)(a). The framework
established under federal law for evaluating a Title VII race
discrimination claim applies to Damino's race discrimination
claims under NYSHRL § 296(1)(a). See, e.g., Matter of Miller
Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 939,
489 N.E.2d 745, 747, 498 N.Y.S.2d 776, 778 (1985).
Under the framework set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973), a
plaintiff asserting a claim under Title VII must first establish
a prima facie case of discrimination. To meet this burden, "[t]he
plaintiff must prove by a preponderance of the evidence that she
applied for an available position for which she was qualified,
but was rejected under circumstances which give rise to an
inference of unlawful discrimination." Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1982). If a plaintiff
establishes a prima facie case, the burden shifts to the employer
to "articulate some legitimate, nondiscriminatory reason for the
employee's rejection." McDonnell Douglas, 411 U.S. at 802;
Texas Dep't, 450 U.S. at 253. If the employer has met this
burden, the plaintiff must then demonstrate that "the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination." Texas Dep't,
450 U.S. at 253.
Even assuming arguendo that Damino has put forth a prima facie
case of race discrimination, the City has demonstrated that
Damino was not selected as a police officer under exam No. 1059
for legitimate, nondiscriminatory reasons; namely that he was
psychologically disqualified.*fn10 The disqualification
barred Damino's employment as a police officer regardless of his
Damino has not demonstrated that the City's proffered
legitimate reason was pretextual. Damino's claims against the
psychologists who evaluated him were all dismissed. (Def.'s Ex. N
at 4, Ex. O at 1, Ex. R at 12). In fact, Damino does not argue
that the psychologists were motivated by racial bias. (Def.'s Ex.
A at 286-87). Damino argues that Wood, who initially found him to
be psychologically disqualified, was motivated by gender bias.
(Def.'s Ex. S ¶ 42). However, Damino does not present any proof
of this allegation. Damino offers additional arguments attacking
the validity of his disqualification, but none have merit, let
alone support a claim that the disqualification was a pretext for
Since the City has presented a legitimate, nondiscriminatory
reason for the job applicant's rejection, which has not been
shown to be a pretext for race discrimination, Damino's NYSHRL §
296(1)(a) claim is dismissed. See Ryan v. New York City
Department of Correction, No. 92-4416, 1995 WL 608327 at *5
(S.D.N.Y. Oct. 16, 1995) (granting summary judgment for
defendants where plaintiff failed to demonstrate that his
disqualification based upon his character, background
investigation, and psychological evaluation was pretext for race
discrimination); Wang v. New York City Dept. of Correction, No.
92-0541, 1994 WL 150823 at *3 (S.D.N.Y. Apr. 20, 1994) (granting
summary judgment for defendants where plaintiff failed to
demonstrate that his disqualification based upon his character,
background investigation, and psychological evaluation was
pretext for race discrimination).
Equal Protection Claim
Damino also brings a § 1983 claim, alleging the City's failure
to hire him as a police officer violated his rights under the
Fourteenth Amendment. To prevail on a § 1983 claim, a plaintiff
must show the result complained of was caused by a constitutional
violation. Mt. Healthy City Sch. Bd. of Educ. v. Doyle,
429 U.S. 274, 286 (1977). "The claimant always has to prove
discriminatory motivation. If he succeeds, the accused party has
an opportunity to show that there were really two motives and
that a permissible motive would have led to the challenged
action. In effect, the accused party is permitted to show, if he
can, that the improper motivation proved by the claimant was only
part, and not the decisive part, of the motivation." Howard,
986 F.2d at 27. See Mt. Healthy, 429 U.S. at 284-87 (holding
once plaintiff shows constitutionally protected conduct was a
"substantial" or "motivating factor" in decision not to rehire,
"the District Court should have gone on to determine whether the
[defendant] had shown by a preponderance of the evidence that it
would have reached the same decision as to [plaintiff's]
reemployment even in the absence of the protected conduct");
Vill. of Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 270 n. 21 (1977) (noting if defendant established
same decision would have resulted without racially discriminatory
purpose, the plaintiff" no longer fairly could attribute the
injury complained of to improper consideration of a
Even if Damino could prove he was assigned a worse list number
on the basis of his race, he can not show the City did not hire
him on the basis of his race. Damino's ranking proved irrelevant,
as his psychological disqualification barred him from being
considered for a position. If his number had been reached, he
would simply have been passed over. Since Damino's
disqualification was not reversed prior to the list's expiration,
New York law would have prohibited the defendants from hiring
him, even if his disqualification had later been reversed. In
other words, Damino's psychological disqualification eliminated
any causal relationship between his ranking on the list, and the
City's decision not to hire him as a police officer.
It is clear that Damino is only protesting the City's failure
to hire him. Damino does not request any injunctive relief, such
as a declaration that the banding system is discriminatory, or an
injunction preventing the City from using race as a factor when
assigning list numbers within a band (Def.'s Ex. S at 11). See
Phifer v. City of New York, 289 F.3d 49, 59 n. 4 (2d Cir. 2002)
("[Plaintiff] may not avoid dismissal . . . by arguing that her
equal protection claim is a general challenge to the
constitutionality of an allegedly unconstitutional ACS policy as
the relief [plaintiff] requests in her complaint reveals that she
is actually only attacking the result in her particular case.
. . . [She] does not request declaratory or equitable relief
against ACS or the City, or a permanent injunction barring the
defendants from continuing to implement the challenged policies
and practices.") Because Damino has not brought a general
challenge to the City's allegedly discriminatory policy for
assigning list numbers, there is no need to determine here
whether or not he has raised an issue of fact as to the existence
of such a race-conscious policy.
For the foregoing reasons, defendant is granted summary
judgment on all of plaintiff's claims. The Clerk of the Court is
directed to close the case.