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United States District Court, E.D. New York

ROBERT W. DAMINO, JR., Plaintiff,

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 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).


  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.)

  Procedural History

  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. ¶ 47).

  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 261).*fn8

  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. ¶ 87).
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 at 11).
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 as time-barred.

  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 list number.

  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 race discrimination.*fn11

  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 discriminatory purpose").

  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.


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