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DAMINO v. CITY OF NEW YORK

ROBERT W. DAMINO, JR., Plaintiff,
v.
THE CITY OF NEW YORK, Defendant.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

ORDER

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 requirements.

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 psychologically disqualified).

  Background

  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 ...


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