United States District Court, S.D. New York
August 4, 2005.
GEORGE HAWKINS, Plaintiff,
CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT and HOWARD SAFIR, COMMISSIONER, CAPTAIN JOSEPH MARCH, LIEUTENANT JOSEPH ZERBO, SERGEANT MICHELE TURNER, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The defendants City of New York (the "City"), the New York City
Police Department (the "NYPD"), Howard Safir, Commissioner (the
"Commissioner"), Captain Joseph March ("Capt. March"), Lieutenant
Joseph Zerbo ("Lt. Zerbo"), and Sergeant Michele Turner ("Sgt.
Turner") (collectively the "Defendants") have moved under Rule
56, Fed.R.Civ.P., to dismiss the complaint of plaintiff George
Hawkins ("Officer Hawkins" or the "Plaintiff") alleging discrimination in
employment on the basis of color and race. For the reasons set forth, the
motion is granted, and the complaint is dismissed.
Officer Hawkins filed a complaint against the Defendants on
December 1, 1999 alleging: (1) that the Defendants discriminated
against him in employment on the basis of his color and race
(African-American) by giving him a negative evaluation on
December 15, 1998 and by reassigning him from the Narcotics
Division to Transit District ("TD") 12 two months before
Plaintiff was eligible for a promotion to Detective Third Grade;
(2) that the Defendants retaliated against him for "opposing
discrimination," in violation of 42 U.S.C. §§ 2000e, et seq.
("Title VII"), 42 U.S.C. §§ 1981, 1983, the New York State Human
Rights Law ("NYSHRL"), NY Executive Law §§ 290, et seq. and
the New York City Human Rights Law ("CHRL"), NYC Administrative Code §§ 8-101, et seq.; (3) that
Defendants have conspired to deprive him of his civil rights in
violation of 42 U.S.C. § 1985; and, (4) that Capt. March, Sgt.
Turner and Lt. Zerbo committed libel per se and slander against him.
Discovery has proceeded, and the instant motion was heard and
marked fully submitted on February 23, 2005.
The facts are taken from the Defendants' Local Civil Rule 56.1
Statement and the Plaintiff's Local Civil Rule 56.1 Counter
Statement of Facts, and are uncontroverted except as noted.
Officer Hawkins was appointed a Police Officer with the New
York City Transit Police Department ("TPD") on January 21, 1985.
At that time, the New York City Transit Police Department was a
division of the New York City Transit Authority, a municipal
entity, separate and apart from the City of New York and the New
York City Police Department. In April 1995, the TPD was
transferred to and became a part of the NYPD. As a result of the
merger of the TPD and the NYPD, Plaintiff became an employee of
the NYPD in April 1995. After the merger between TPD and the NYPD, Officer Hawkins
continued to work as a transit police officer at TD 12. In the
fall of 1997, Officer Hawkins requested to be reassigned to the
Organized Crime Control Bureau ("OCCB"), which is a division
within the NYPD. Specifically, Plaintiff wanted to be assigned to
the Auto Crime Unit, which is a unit within OCCB. In order to be
assigned to OCCB, precinct officers have to put in a request for
a transfer, which must be approved by their commanding officer.
According to Officer Hawkins, a high recommendation from the
commanding officer is required.
After receiving his commanding officer's recommendation,
Officer Hawkins was accepted to OCCB on October 17, 1997. Due to
the NYPD's concern with drug crime, most applicants accepted to
OCCB were assigned to the Narcotic Divisions. Officer Hawkins was
assigned to the South Bronx Initiative ("SBI"), which is part of
the Bronx Narcotic Division.
Narcotic divisions within the NYPD are responsible for
conducting investigations of known drug prone areas and possible
drug prone areas; conducting undercover "buy and bust" operations
in which an undercover police officer buys drugs from a suspect
and the undercover police officer's team members later arrest or
"bust" the drug seller; procuring and executing arrest warrants;
cultivating confidential informants to learn of possible drug
locations or the identity of drug dealers; processing arrested individuals; and assisting the District Attorney's office in its
prosecutions. If an officer successfully performs the
investigative functions in a narcotics division for eighteen
months, the police officer is automatically promoted to detective
The SBI covers the 40th, 41st, 42nd, and 43rd precincts.
Officer Hawkins was stationed in the 40th precinct. His unit was
comprised of three teams or "modules." Each team was supervised
by a sergeant and was comprised of three to six team members
including at least one undercover police officer. Each sergeant
provided training and supervision to his or her team members,
planned and executed the daily investigations, prepared the
members' evaluations, and reported to a lieutenant. The
lieutenant, in turn, provided indirect supervision of the unit
members and made reports and recommendations to his or her
superior officer, the captain. The captain provided indirect
supervision over various narcotic units within a precinct.
Officer Hawkins was assigned to a team that was supervised by
Sgt. Turner. Sgt. Turner reported to Lt. Zerbo. Lt. Zerbo
reported to Capt. March. Sgt. Turner is an African-American
female. Lt. Zerbo is a Caucasian male.
In April 1998, Sgt. Turner prepared Officer Hawkins's six-month
progress report. He received a "Meets Standards" rating, and it
was noted that while Plaintiff had only been with SBI for a short
time, Sgt. Turner believed Plaintiff would become a good investigator. Officer Hawkins's supervisors testified that even
though they observed that Plaintiff had difficulties grasping the
objectives of SBI that they believed it was partially due to his
inexperience, and that they felt with time and practice
Plaintiff's work performance would improve. The evaluation was
thus written in a way so as not to discourage him.
According to Defendants, Officer Hawkins's performance,
however, did not improve, a fact Officer Hawkins has disputed.
Sgt. Turner repeatedly recommended to her supervisor that
Plaintiff be transferred out of SBI because of his poor work
performance. Lt. Zerbo also spoke to Capt. March about
Plaintiff's poor work performance. Officer Hawkins has disputed
these evaluations and states that he never received any
Sgt. Turner noted that Plaintiff could not correctly complete
"Daily Activity Reports ("DAR's") and DD5's, which were reports
that detailed the events of an investigation for others to
review, and she repeatedly corrected Plaintiff's reports,
oftentimes concerning a mistake about which Officer Hawkins
previously had been counseled. Officer Hawkins has disputed the
notations of Sgt. Turner and states that he was never informed of
Sgt. Turner observed Plaintiff parking too near or too far from
"sets," which were locations where undercover police officers would make drug buys. According to Lt. Zerbo, parking
too close to a "set" would place an undercover in danger or
disrupt a potential drug transaction because the close proximity
of other individuals would often arouse the drug dealer's
suspicions. Whereas, parking too far from a "set" would make it
difficult to maintain "point to point" radio communication, which
could endanger any of the team members. Officer Hawkins asserts
that Lt. Zerbo prepared this evaluation, that Sgt. Turner was
required to sign it and that Sgt. Turner did not make the
Lt. Zerbo had to counsel Officer Hawkins on proper procedures
regarding radio range after Plaintiff's six-month evaluation
because of an incident in which Officer Hawkins and his partner
traveled outside of the radio frequency which delayed the planned
activity for the day for the entire team because the team had to
search for Plaintiff and his partner.
During his counseling sessions with Sgt. Turner, Plaintiff
revealed that he did not know the boundaries of the 40th
precinct, which was an area that he had been working within on a
daily basis. Sgt. Turner noted, on the other hand, that the
investigators that started with Plaintiff knew the boundaries and
street conditions of the 40th precinct.
Lt. Zerbo also determined that Plaintiff could not perform as a
"ghost officer" because of his unfamiliarity with his environs. A ghost officer is an officer who trails the undercover
officer in order to act as a lookout for the undercover and to
notify the remainder of the team if it appears that the
undercover may be in danger.
Sgt. Turner testified that Plaintiff asked too many questions.
Plaintiff's constant questioning suggested to his supervisors
that he was not understanding his function as an investigator in
the Narcotics Division or that he was not paying attention to
what he was being told and taught.
Sgt. Turner also testified that Plaintiff did not conduct the
necessary follow-up to his investigations. Instead of
investigating the complaints of drug locations (also known as
"kites"), Plaintiff would simply deny that drugs were being sold
in the area without actually speaking to anyone in the area or
without conducting any observations of the area to determine if
there was any suspicious activity. Lt. Zerbo also repeatedly
discussed with Plaintiff his failure to properly indicate whether
an investigation was substantiated or unsubstantiated and to
remind Plaintiff that he had to document every investigative step
using official language. Lt. Zerbo testified that unlike his
peers, Plaintiff's reports did not improve over time. Officer
Hawkins has disputed Lt. Zerbo's conclusions and states that Lt.
Zerbo never discussed performance issues with him. According to the Defendants, unlike the other police officers
Plaintiff worked with, Officer Hawkins was also unable to procure
a confidential informant. The Chief of SBI considered it
important that the investigating officers have at least one to
two confidential informants who would provide them with
information. In procuring a confidential informant, it was NYPD
policy that the police officer have a supervisor with him or her.
Officer Hawkins has disputed this conclusion, stating he had two
According to the Defendants, the only confidential informant
Officer Hawkins procured did not provide Officer Hawkins with any
useful information and Officer Hawkins never solicited
information about the confidential informant to determine if the
confidential informant would be a reliable and useful resource, a
statement disputed by Officer Hawkins. In addition, in procuring
the confidential informant, Plaintiff violated NYPD policy
because Plaintiff did not have a supervisor with him when he made
his initial contact with the confidential informant, a fact
disputed by Officer Hawkins.
In 1998, Capt. March received orders from his superior officer
to have an interim evaluation completed for Plaintiff. Capt.
March subsequently ordered Lt. Zerbo to complete the evaluation.
An interim evaluation is a type of evaluation performed between
the required biannual evaluations. An interim evaluation is completed in order to evaluate an officer whose
suitability for an assignment is at issue and it is used to
determine whether the officer should be reassigned from the unit.
According to the Defendants, in or around October 1998, Lt.
Zerbo, based on his own observations of Plaintiff and from his
on-going discussions with Sgt. Turner about Officer Hawkins's
performance, completed an interim evaluation of Officer Hawkins
because Sgt. Turner was away on vacation. Officer Hawkins has
disputed this contention.
According to the Defendants, when Sgt. Turner returned from
vacation, she reviewed the evaluation that Lt. Zerbo completed,
agreed with the comments, which included that Officer Hawkins be
transferred from the division, and signed the evaluation. Sgt.
Turner was not ordered to sign the interim evaluation and in fact
testified that she would not have signed the interim evaluation
unless she agreed with the contents. Officer Hawkins has disputed
these facts and states that Sgt. Turner was ordered to sign the
evaluation which was not the usual procedure.
Capt. March reviewed and concurred with the interim evaluation.
He signed off on the interim evaluation on November 3, 1998. The
interim evaluation reported that Officer Hawkins's performance
was poor, concluding that he did not meet the minimum standards
of performance for the unit. As such, the interim evaluation recommended that Plaintiff be reassigned from the
unit. When Sgt. Turner gave Officer Hawkins the interim
evaluation, she informed Plaintiff that if he did not agree with
the contents that he could appeal the evaluation.
On December 2, 1998, Capt. March recommended to the Commanding
Officer of the Narcotics Division that Plaintiff be reassigned
from the Narcotics Division because of his inability to improve
his poor work performance. Capt. March's recommendation that
Officer Hawkins be reassigned from the Narcotics Division was
endorsed by Capt. March's superior officers on December 9, 1998.
On or about December 28, 1998, Officer Hawkins appealed the
evaluation to Capt. March. In his appeal, Officer Hawkins alleged
that the interim evaluation was not based on facts and disputed
the various criticisms levied against him. In his appeal,
Plaintiff did not claim to be either the victim of discrimination
In his deposition testimony, Officer Hawkins stated he had a
good working relationship with both Sgt. Turner and Lt. Zerbo.
On January 6, 1999, Capt. March denied Officer Hawkins's appeal
and concurred with Sgt. Turner's recommendation to transfer him
and that Plaintiff be reassigned from SBI. Capt. March based his decision on interviews with Plaintiff and
his supervisors in order to resolve Officer Hawkins's appeal.
Capt. March noted that in questioning Plaintiff about the
surroundings of the 40th precinct, Plaintiff could not name
streets and demonstrated an unfamiliarity of the environs and
that Plaintiff's supervisors continued to assert the Plaintiff's
work performance was substandard. Additionally, Capt. March
questioned Sgt. Turner if she agreed with the contents of Officer
Hawkins's interim evaluation, and she indicated that she did
agree with it.
Capt. March informed Officer Hawkins that if he did not agree
with his decision to transfer him, Plaintiff had twenty-four
hours to submit an appeal to the Personnel Officer of OCCB.
Officer Hawkins did not submit an appeal within the time frame
In or around late January 1999, Officer Hawkins appealed Capt.
March's recommendation to the Personnel Officer of OCCB, Lt. Glen
Morisano ("Lt. Morisano"). In connection with Plaintiff's appeal,
Lt. Morisano met with Sgt. Turner, Lt. Zerbo, and Officer
Hawkins, spoke with Capt. March, and reviewed Plaintiff's work
product generated while he was in SBI. Lt. Morisano denied the
appeal and upheld the recommendation to have Plaintiff reassigned
from SBI, noting that while Plaintiff appeared polite and
respectful when he met with Plaintiff in connection with his
appeal, Plaintiff was unable to adequately explain his duties and responsibilities as an investigator and did not appear to have
enthusiasm for the job.
On February 19, 1999, Officer Hawkins was reassigned back to
his previous assignment as a transit police officer at TD 12.
On or about April 13, 1999, Officer Hawkins dual-filed a charge
of race and color discrimination with the Equal Employment
Opportunity Commission ("EEOC") and the SDHR alleging that the
negative interim evaluation and his subsequent involuntary
transfer from the Narcotics Division to TD 12 were acts of
According to the Defendants, Officer Hawkins testified that he
included Lt. Zerbo in his complaint of discrimination because Lt.
Zerbo once told Plaintiff that he would be a good undercover
officer and that Lt. Zerbo referred to transit police as "tunnel
rats." Officer Hawkins has disputed this statement and states
that Lt. Zerbo repeatedly referred to Officer Hawkins becoming an
Officer Hawkins testified that prior to receiving his interim
evaluation he asked Capt. March about transferring to the
Internal Affairs Bureau ("IAB"), that Capt. March refused to
recommend Plaintiff and informed Plaintiff that his work
performance was not up to par and that after his request to
transfer to IAB was denied, Sgt. Turner and Lt. Zerbo started to treat him in a negative manner and that they began to conspire
According to the Defendants, Officer Hawkins testified that he
included Sgt. Turner in his complaint of discrimination because
he believed that she was ordered to sign off on his evaluation.
Officer Hawkins denied such testimony. Officer Hawkins never
filed a complaint of discrimination with the NYPD's Office of
Equal Employment Opportunity. On or about September 2, 1999,
Plaintiff received a Right to Sue notice from the EEOC.
The Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329,
338 (2d Cir. 2004). The court will not try issues of fact on a
motion for summary judgment, but, rather, will determine "whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). Summary judgment is appropriate where the moving party has
shown that "little or no evidence may be found in support of the
nonmoving party's case. When no rational jury could find in favor
of the nonmoving party because the evidence to support its case
is so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper." Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994) (internal citations omitted). If, however, "`as to the
issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in
favor of the opposing party, summary judgment is improper.'"
Security Ins. Co. of Hartford v. Old Dominion Freight Line
Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village
of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
The moving party has the burden of showing that there are no
material facts in dispute, and the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
party opposing the motion. Bickhardt v. Ratner, 871 F.Supp. 613
(S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Thus, "[s]ummary judgment
may be granted if, upon reviewing the evidence in the light most
favorable to the non-movant, the court determines that there is
no genuine issue of material fact and the movant is entitled to
judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616,
621 (2d Cir. 1993). A material fact is one that would "affect the outcome of the
suit under the governing law," and a dispute about a genuine
issue of material fact occurs if the evidence is such that "a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane,
112 F.3d 54, 57 (2d Cir. 1997).
"The salutory purposes of summary judgment avoiding
protracted, expensive and harassing trials apply no less to
discrimination cases than to commercial or other areas of
litigation ." Nicastro v. Runyon, 60 F. Supp.2d 181, 183
(S.D.N.Y. 1999) (citing Dister v. Continental Group, Inc.,
859 F.2d 1108, 1114 (2d Cir. 1988)). Greater caution must be
exercised, however, in granting summary judgment in employment
discrimination cases where the employer's intent is genuinely in
issue. Belfi v. Predergast, 191 F.3d 129, 135 (2d Cir. 1999).
This is so because "[e]mployers are rarely so cooperative as to
include a notation in the personnel file that the [action
complained of] is for a reason expressly forbidden by law."
Bickerstaff v. Vassar College, 196 F.3d 435, 448 (internal
quotation marks and citation omitted; brackets in the original).
But even where an employer's intent is at issue, "a plaintiff
must provide more than conclusory allegations of discrimination
to defeat a motion for summary judgment." Schwapp v. Town of
Avon, 118 F.3d 106, 110 (2d Cir. 1997); Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985). The Claims Against The NYPD Are Dismissed
Agencies of the City of New York are not suable entities under
the NYC Chapter § 396. See East Coast Novelty Co., Inc. v.
City of New York, 781 F. Supp. 999 (S.D.N.Y. 1992); see
Connell v. City of New York, 230 F. Supp. 2d 432, 433 n. 3
(S.D.N.Y. 2002). The action against the NYPD is dismissed.
The Title VII Claims Against The Individual Defendants Are
Individuals are not proper Title VII defendants. See Tomka
v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (abrogated
on other grounds by Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998)) (holding that "an employer's agent may not be
held individually liable under Title VII"). Accordingly, all
Title VII claims against the Commissioner, Capt. March, Lt. Zerbo
and Sgt. Turner are dismissed with prejudice.
Hawkins's Title VII Discrimination Claims
Title VII makes it unlawful "for an employer . . . to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race . . . [or] sex. . . ."
42 U.S.C. § 2000e-2(a)(1). The "ultimate issue" in any employment discrimination case is "whether the plaintiff has met her burden
of proving that the adverse employment decision was motivated at
least in part by an `impermissible reason.'" Stratton v.
Department for the Aging, 132 F.3d 869, 878 (2d Cir. 1997).
Two methods exist by which a plaintiff can attempt to prove
intentional discrimination. First, the plaintiff may present
direct evidence of employment discrimination based on an
illegitimate criterion. When an employee produces direct evidence
that an illegitimate criterion such as race "played a motivating
part in [the] employment decision," Price Waterhouse v.
Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 1795,
104 L.Ed.2d 268 (1989), the burden-shifting standards of Price Waterhouse
apply. As such, "the defendant may avoid a finding of liability
only by proving by a preponderance of the evidence that it would
have made the same decision even if it had not taken the
[illegitimate criterion] into account." Id. at 258,
109 S.Ct. at 1795.
Hawkins has presented no direct evidence of Defendants'
intentional discriminatory statements or actions. Therefore, it
is necessary to turn to the second means of proving
When plaintiffs rely on indirect or circumstantial evidence of
discrimination, their claims are analyzed under the three-part
test announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must establish his prima facie case by showing (1)
he was a member of a protected group; (2) he was satisfactorily
performing the duties required of the position; (3) he was
discharged; and (4) the discharge occurred under circumstances
giving rise to an inference of discrimination.*fn1 E.g.,
McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
Second, if the plaintiff successfully establishes a prima
facie case of discrimination, the defendant may rebut that
showing by articulating a legitimate, non-discriminatory reason
for the employment action. Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981); Dister v. Continental Group, Inc., 859 F.2d 1108, 1115
(2d Cir. 1988) (the defendant "is required to articulate but
not prove a legitimate, non-discriminatory reason for the
discharge"). Finally, if the defendant articulates a
non-discriminatory reason, the plaintiff must come forward with
evidence that the defendant's articulated non-discriminatory
reason is a mere pretext for actual discrimination. Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) ("The plaintiff
must `produce not simply some evidence but sufficient evidence to
support a rational finding that the legitimate non-discriminatory
reasons proffered by the [defendant] were false and that more
likely than not [discrimination] was the real reason for the'" employment
action (quotations and citations omitted; brackets in original)).
Whether a judgment as a matter of law is appropriate depends
upon a number of factors, including the strength of the
plaintiff's prima facie case, the probative value of the
proof that the employer's explanation is false, and any other
evidence that supports the employer's case that may be considered
on a summary judgment motion. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 148-49, 120 S.Ct. 2097,
147 L.Ed.2d 105 (2000).
1. Hawkins's Prima Facie Case
"The burden of establishing a prima facie case is a modest one,
but it has substance nevertheless." Viola v. Philips Med. Sys.,
42 F.3d 712, 716 (2d Cir. 1994). Conceding the first prong of the
disparate treatment test, Defendants do not contest that Hawkins
is a member of a protected class and that he was reassigned. With
respect to the remainder of the McDonnell Douglas test,
however, Defendants argue that Hawkins has failed to satisfy the
prima facie standard in that he has failed to establish that
his work was satisfactory or that his reassignment occurred under
circumstances that give rise to an inference of race
discrimination. While the Defendants acknowledge that initially
Officer Hawkins was deemed qualified to be reassigned to the Narcotics Division, they contend that he was not qualified to
remain in the division which would have resulted in his
To establish the third prong of a prima facie case of
disparate treatment, a plaintiff must show that he suffered an
adverse employment action that is, a "materially adverse change
in the terms and conditions of employment." Galabya v. New York
City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal
quotation marks omitted). Further, "not everything that makes an
employee unhappy is an actionable adverse action." Phillips v.
Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (Martin, D.J.,
dissenting) (quoting Smart v. Ball Stte Univ., 89 F.3d 437, 441
(7th Cir. 1996)). A "materially adverse change" might occur in
the context of "a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices . . . unique to a particular
situation." Galabya, 202 F.3d at 640.
To the extent that Officer Hawkins alleges that the December
15, 1998 negative evaluation and his reassignment from the Bronx
Narcotics Division back to his previous assignment as a transit
police officer in TD 12 were discriminatory, a negative
evaluation does not constitute an adverse employment action.
Indeed, the act of evaluation alleged by the Plaintiff is the
sort that courts in this circuit have ruled not to be the
"materially adverse changes" necessary to rise to the level of adverse
employment actions. See Weeks v. New York State Division of
Parole, 273 F.3d 76, 84-87 (2d Cir. 2001); Clark v. New York
City Transit Auth., 1999 U.S. App. LEXIS 32729 at *2 (2d Cir.,
Dec. 16, 1999). Because the negative evaluation is not an adverse
employment action,*fn2 Officer Hawkins cannot establish a
prima facie case with respect to his race discrimination
claim on that basis.
As to the fourth prong of his prima facie case, Plaintiff's
evidence of discriminatory animus based upon his color and race
consist of bare and conclusory allegations. Assuming, arguendo,
that Officer Hawkins's reassignment from the Narcotics Division
to TD 12 is an adverse employment action, Officer Hawkins has not
established that the actions about which he complains took place
under circumstances that give rise to an inference of
discrimination based on color and race.
It is unnecessary to reach the question of whether this showing
is sufficient to establish a prima facie case because it is
held that, even assuming this circumstantial evidence meets the
threshold of sufficiency, Officer Hawkins has failed to proffer
any evidence from which a reasonable jury could find that the Defendants' asserted reason for the discharge was a pretext for
Defendants state that Officer Hawkins was reassigned because of
poor work performance. This reason is legitimate and
non-discriminatory. As a result, it is Officer Hawkins's burden
to demonstrate that it was a mere pretext for discrimination.
Burdine, 450 U.S. at 254, 101 S.Ct. 1089. "[A] reason cannot be
proved to be `a pretext for discrimination' unless it is shown
both that the reason was false and that discrimination was the
real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502,
515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993).
Officer Hawkins's claims rest almost entirely on his belief
that his negative performance evaluation dated December 15, 1998
was unfounded. Such a claim is insufficient to meet his burden
without some other indicia of discrimination at play. E.g.,
Viola, 42 F.3d 712 (2d Cir. 1994) (rejecting argument based on
adverse performance reviews after 11 years of satisfactory
reviews because "[d]ismissals are often preceded by adverse
performance reviews."); Ricks v. Conde Nast Publications,
92 F.Supp.2d 338, (S.D.N.Y. 2000) ("The mere fact that an employee
disagrees with the employer's assessments of her work, however,
cannot standing on its own show that her employer's asserted
reason for termination was pretextual."); Payne v. State of New York Power Auth.,
997 F.Supp. 492, 498-99 (S.D.N.Y. 1998) ("Plaintiff disputes
[defendant's] evaluation of her performance . . . and the
subsequent decision to demote her. Missing from this dispute,
however, is evidence either direct or circumstantial which
points to the conclusion that Power Authority's explanations for
demoting plaintiff are a pretext for race discrimination.");
Orisek v. American Inst. of Aeronautics and Astronautics,
938 F.Supp. 185, 191 (S.D.N.Y. 1996) (plaintiff's "own disagreement
with her employer's perception of her job performance does not
satisfy her burden of showing that the [employer's] proffered
justification was a pretext for discrimination"); Ashton v. Pall
Corp., 32 F.Supp.2d 82, 91 (E.D.N.Y. 1999) ("Plaintiff relies
upon optimistic expectations that at trial he will prove that
defendant created plaintiff's negative performance evaluation to
justify his termination, which, he claims, is only a pretext for
the real reason he was discharged his age. Such blanket
statements have no probative value."). As a result, Officer
Hawkins's case fails in the absence of some direct or indirect
evidence suggesting that the poor evaluation and eventual
discharge resulted from racial discrimination.
As the sole support for his allegation that the negative
evaluation was generated for discriminatory purposes, Officer
Hawkins points to the fact that his direct supervisor, Sgt.
Turner, did not complete the evaluation. Plaintiff insinuates
that Sgt. Turner held a more positive opinion of his work
performance and would have given him a better evaluation had she been given the
opportunity to do so.
However, during a deposition, Sgt. Turner's denied being forced
to sign Plaintiff's interim evaluation. Furthermore, Sgt. Turner
testified that she felt that Officer Hawkins should have been
transferred from the Narcotics Division before the interim
evaluation was even contemplated because she believed he posed a
danger to himself and to his team members. She further testified
that, due to these observations, she had made repeated requests
to Lt. Zerbo and Capt. March to have Officer Hawkins transferred.
Officer Hawkins, without record reference, has disputed these
Officer Hawkins has not attributed any direct remarks of
discriminatory animus to Sgt. Turner and has stated that he had a
good working relationship with her. Officer Hawkins also has not
attributed any discriminatory animus to the Commissioner or Capt.
March. Officer Hawkins appears to claim that Capt. March and Lt.
Zerbo discriminated against him because of the denial of his
request to transfer to the IAB.
However, treating an individual differently because he wants to
transfer to another division, while arguably disagreeable, does
not in itself constitute discrimination. Even assuming that all his supervisors believed Officer Hawkins
was not suitable for the investigative work, he has alleged that
"blacks and Hispanics [were] disproportionately transferred out
of the Narcotics Division, while on the investigate track towards
Detective Third Grade." (Compl. at ¶ 45). But, Officer Hawkins
adduces no evidence to support his claim. Each of the Defendants
testified that they either did not have cause to transfer an
individual out of the Narcotics Division or the individuals
transferred out were Caucasian. (See Deft's 56.1 at ¶¶ 16-28.)
The Plaintiff's own subjective belief that actions about which
he complains were motivated by discriminatory bias is
insufficient to make out a prima facie case of discrimination
or to pierce the non-discriminatory, legitimate reasons for
reassignment offered by Defendants. See Bickerstaff v. Vassar
College, 196 F.3d 435, 456 (2d Cir. 1999) (feelings and
perceptions of being discriminated against are not evidence of
discrimination) (quotation and citation omitted), cert.
denied, 530 U.S. 1242 (2000); Curtis v. Airborne Freight
Corp., 87 F. Supp. 2d 234, 249 n. 20 (S.D.N.Y. 2000) (conclusory
and speculative allegations of racial animus are insufficient to
create an issue of fact). Officer Hawkins's claims of
discrimination are dismissed for failure to establish supporting
evidence. 3. No Prima Facie Case Of Discriminatory Retaliation
Title VII also provides that "it shall be an unlawful
employment practice for an employer to discriminate against any
of his employees . . . because he has opposed any practice made
an unlawful practice by this subchapter. . . ."
42 U.S.C. § 2000e-3(a). As the Second Circuit has noted, "[t]he objective of
this section is obviously to forbid an employer from retaliating
against an employee because of the latter's opposition to an
unlawful employment practice." Manoharan v. Columbia Univ.
College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.
1988). To establish a claim for retaliation pursuant to Title
VII, a plaintiff need not prove that her discrimination claim was
valid in the first instance. See Sumner v. U.S. Postal
Service, 899 F.2d 203, 208-09 (2d. Cir. 1990).
Title VII defines protected activities as (1) an employee's
opposition to any activity which is prohibited by Title VII, or
(2) an employee's participation in any Title VII investigation or
proceeding. See Gilani v. National Ass'n of Securities
Dealers, Inc., No. 96 CV 8070, 1997 WL 473383, at *7 (S.D.N.Y.
Aug. 19, 1997) (citing Williams v. Boorstin, 663 F.2d 109, 115
(D.C. Cir. 1980)).
In order to establish a prima facie case of retaliation, a
plaintiff must prove that: (1) he engaged in protected activity; (2) defendants were aware of the protected activity; (3) he was
subjected to an adverse employment action; and (4) there was a
causal connection between the protected activity and the adverse
employment action. Reed v. A.W. Lawrence & Co., Inc.,
95 F.3d 1170, 1178 (2d Cir. 1996). Gordon v. New York City Bd. of Ed.,
232 F.3d 111, 116 (2d Cir. 2000); Quinn v. Green Tea Credit
Corp., 159 F.3d 759, 768-69 (2d Cir. 1998). The Second Circuit
has held that a close temporal relationship between the protected
activity and an employer's adverse actions can be sufficient to
establish causation. Treglia v. Town of Manlius, 313 F.3d 713,
720 (2d Cir. 2002) (citing Cifra v. General Elec. Co.,
252 F.3d 205, 217 (2d Cir. 1998) ("The causal connection needed for proof
of a retaliation claim can be establish indirectly by showing
that the protected activity was closely followed in time by the
adverse action.") (internal quotation marks omitted)). For mere
temporal proximity to establish causality, the intervening period
must be "very close." Clark Co. Sch. Dist. v. Breeden,
532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).
If the plaintiff establishes a prima facie case of
retaliation, the defendant may articulate a legitimate,
nonretaliatory reason for its actions. Id. at 768. Finally, if
the defendant does so, the plaintiff must prove that the
proffered reason is merely a pretext for retaliation. Id. at
769. Officer Hawkins has alleged that he was subjected to the
following acts in retaliation for "opposing discrimination": i)
that Lt. Zerbo prepared a negative evaluation of his work
performance, which Sgt. Turner was forced to sign, and that ii)
Officer Hawkins was transferred from the Narcotics Division in
spite of his competent work performance. (Compl. at ¶¶ 41, 85,
As to the first prong, Defendants do not dispute that Plaintiff
had engaged in protected activity under Title VII by complaining
of discrimination externally to the EEOC in April 1999. As to the
second prong, for the purpose of this motion only, Defendants
have assumed that they were aware of the Plaintiff's filings,
although there is no evidence that any of Officer Hawkins's
superiors knew that he complained to the EEOC. However, Officer
Hawkins has not established a prima facie case that the
alleged retaliatory acts were causally connected to his
Officer Hawkins filed his complaint of discrimination with the
EEOC on April 13, 1999. Therefore, he did not engage in any
legally cognizable protected activity until after he received the
negative interim evaluation and after the order for the
recommendation for the transfer was made by Capt. March. (See
Defs' 56.1 Statement at ¶¶ 30, 32, 45.) As the adverse employment
actions predated Officer Hawkins engaging in any protected activity, they were not taken in response to it. See Fitch v.
R.J. Reynolds Tobacco Co., 675 F. Supp. 133 (S.D.N.Y. 1987) (In
order to indirectly establish a causal connection, a showing must
be made that the protected activity was closely followed by
discriminatory treatment); see also Bennett v. Watson, Wyatt
& Co., 136 F. Supp. 2d 236, 250 (S.D.N.Y. 2001) (as plaintiff's
denial of a raise preceded his filing of the EEOC complaint, the
action clearly could not be retaliatory), aff'd No. 01-7772,
2002 U.S. App. LEXIS 24042 at *55 (2d Cir. Nov. 21, 2002). A
causal connection must be established by admissible facts upon
which a jury could find a causal connection between activity and
adverse action. See Edwards v. Interboro Institute,
840 F. Supp. 222 (E.D.N.Y. 1994). Failure to do so requires the
dismissal of Plaintiff's retaliation claim.
Even assuming, arguendo, that Plaintiff's conclusory
allegations are sufficient to establish a prima facie case of
discrimination or retaliation, the Defendants have articulated
legitimate non-discriminatory reasons for each of the alleged
adverse employment actions. See Fisher v. Vassar College,
114 F.3d 1332, 1335-36 (2d Cir. 1997), cert. denied,
522 U.S. 1075 (1998).
Each of Officer Hawkins's supervisors recall deficiencies in
Plaintiff's performance which did not improve over time, whether
or not these deficiencies were communicated to him. Even assuming a prima facie case, Defendants have met their
McDonnell Douglas burden of providing a legitimate,
non-discriminatory reason for choosing to remove Plaintiff from
the Narcotics Division. See Wolf v. Board of Educ., 162 F.
Supp.2d 192, 199 (S.D.N.Y. 2001) (when a decision to hire,
promote, or grant tenure to one person rather than another is
reasonably attributable to an honest even though partially
subjective evaluation of their qualifications, no inference of
discrimination can be drawn).
Once the Defendants have met their burden of offering a
legitimate non-discriminatory reason for the adverse personnel
action, "the presumption that triggered the defendant's burden of
production . . . `drop[s] out of the picture.'" Cabrera v.
Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994) (quoting St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 509 (1993)). The "factual
inquiry proceeds to a new level of specificity," St. Mary's,
509 U.S. at 516; Fisher v. Vassar College, 114 F.3d 1332, 1336
(2d Cir. 1997) (in banc), cert. denied, 52 U.S. 1075 (1998).
The burden shifts back to Plaintiff to put forth adequate
evidence to support a rational finding that the "legitimate
non-discriminatory reasons proffered by the employer were false,
and that more likely than not the employee's [race, national
origin, or prior discrimination complaint] was the reason for
[the adverse decision.]" Holt v. KMI-Continental, Inc.,
95 F.3d 123, 129 (2d Cir. 1996), cert. denied, 520 U.S. 1228 (1997). In all cases, the plaintiff always "retains that ultimate
burden of persuading the [trier of fact] that [he] has been the
victim of intentional discrimination." Fisher, 114 F.3d at 1336
(quoting St. Mary's, 509 U.S. at 508 (quoting Texas Dep't of
Community affairs v. Burdine, 450 U.S. 248, 256 (1981)
(alteration in St. Mary's))). Merely showing that the
employer's proffered reason is pretextual that the stated
reason is not the real reason will not necessarily carry the
plaintiff's ultimate burden of persuasion. Rather, the plaintiff
mut also demonstrate that the true reason was an illegally
discriminatory one. Fisher, 114 F.3d at 1338; see St.
Mary's, 509 U.S. at 515.
Given the record in this case, and even viewing the facts in a
light most favorable to the Plaintiff, there is no basis to find
that the actions and decisions about which Plaintiff complains
were taken or made because of his race or color or in retaliation
for his discrimination complaint. Hawkins, therefore, has failed
to establish a prima facie case. See Manessis v. N.Y. City
Dep't of Trans., No. 02 Civ. 359, 2003 U.S. Dist. LEXIS 1921, at
*38 (S.D.N.Y. Feb. 10, 2003) (granting summary judgment in
employer's favor because plaintiff failed to adduce direct
evidence of retaliation or a temporal proximity establishing
causality). Furthermore, had Plaintiff set forth adequately a
prima facie case of retaliation, Plaintiff still failed to
raise a triable issue of fact with regard to whether the
Defendants' legitimate nondiscriminatory reasons were pretextual. 4. No Hostile Work Environment
To establish the existence of a hostile work environment, a
plaintiff must show that 1) his workplace is permeated with
"discriminatory intimidation, ridicule, and insult . . . that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment,"
and 2) that a specific basis exists for imputing the
objectionable conduct to the employer. Alfano v. Costello,
294 F.3d 365, 373-75 (2d Cir. 2002) (citing Perry v. Ethan Allan,
Inc., 115 F.2d 143, 149 (2d Cir. 1997) (internal quotations and
citations omitted)). See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal
references omitted); see Richardson v. New York State Dept. of
Correctional Service, 180 F.3d 426, 436 (2d. Cir. 1999).
Further, it is axiomatic that in order to establish a race-based
hostile work environment claim under Title VII, a plaintiff must
demonstrate that the conduct occurred because of his color or
race. Alfano, at 377-78.
As a general rule, incidents must be more than "episodic; they
must be sufficiently continuous and concerted in order to be
deemed pervasive." Id. at 374 (citing Perry, 115 F.3d at 149
(citation and internal quotation marks omitted)). Isolated acts,
unless very serious, do not meet the threshold of severity or
pervasiveness. Id. (citing Brennan v. Metropolitan Opera
Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)). Conduct that is
"merely offensive, unprofessional or childish is not discriminatory
conduct proscribed by Title VII." Cosgrove v. Federal Home Loan
Bank of N.Y., Nos. 90 Civ. 6455, 92 Civ. 4225 (RPP), 1999 WL
163218, at *20 (S.D.N.Y. Mar. 23, 1999).
In examining whether a hostile work environment was created,
courts look to the totality of the circumstances, including the
"frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance." Harris v. Forklift Sys.,
510 U.S. 17, 23 (1993); Howley v. Town of Stratford, 217 F.3d 141, 154
(2d Cir. 2000).
Officer Hawkins has not established that his workplace was
"hostile" or "abusive." The determination as to whether a
plaintiff's working environment is "hostile" or "abusive" must be
made based upon the totality of circumstances. See Mormol
Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir. 2004). Although
there is "neither a threshold magic number of incidents below
which a plaintiff fails as a matter of law to state a claim,"
Richardson v. New York Stte Dep't of Correctional Serv.,
180 F.3d 426, 439 (2d Cir. 1999) (internal quotations omitted), a
single isolated instance of harassment is insufficient to
establish a hostile work environment claim unless it was
"extraordinarily severe." Officer Hawkins has stated that he had a good working
relationship with both Sgt. Turner and Lt. Zerbo, (see Hawkins
Depos. at 33, 34), and that he had no real contact with Capt.
March except for the one time Officer Hawkins approached Capt.
March regarding the transfer to the IAB. (See Hawkins Depos. at
52, 69-74.) The only negative that Officer Hawkins attributes to
that encounter was that Capt. March was not happy with his work
performance. (See id.)
Officer Hawkins has not attributed any discriminatory comments
to Sgt. Turner. The only evidence Officer Hawkins has proffered
as discriminatory animus is that Sgt. Turner followed her
superior's order in signing his negative evaluation. Even
presuming that Sgt. Turner was ordered to sign the evaluation,
Plaintiff presents no authority, legal or otherwise, that stands
for the proposition that when an employee in a paramilitary
organization obeys her superior's order, that such an action is
akin to discrimination.
The only colorable allegation of racial animosity alleged by
the Plaintiff are the comments he alleged that Lt. Zerbo made to
him or in his presence. Officer Hawkins has alleged: (1) that on
several occasions Lt. Zerbo told him that he would make a good
undercover (instead of a good investigator, as was Hawkins's
primary goal); and (2) that on one occasion, while Officer
Hawkins was in the office, Lt. Zerbo referred to transit police
officers as "tunnel rats." (See Hawkins Dep. at 66-68; 78-80.) Officer
Hawkins admits that when Lt. Zerbo made the alleged "tunnel rat"
comment, it was not made directly to him, but was made when there
was another Caucasian, who also was a former transit police
officer, in the vicinity, and was made about transit police
officers in general. Although unkind, the comment is devoid of
racial animosity directed at Hawkins.
Even if the incidents claimed by the Plaintiff to constitute
discriminatory animus are assumed, these instances are so
isolated that they do not meet the threshold for a hostile work
environment claim. "For racist comments, slurs, or jokes to
constitute a hostile work environment, there must be more than a
few isolated incidents." Schwapp v. Town of Avon, 118 F.3d 106,
110 (2d Cir. 1997) (internal quotation marks omitted). Moreover,
"not all workplace conduct that may be described as harassment
affects a term, condition, or privilege of employment within the
meaning of Title VII." Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 67, 106 S.Ct. 2399, 2405 (1986) (internal quotations
omitted). "[S]imple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of
employment." Faragher v. City of Boca Raton, 524 U.S. 775, 787,
118 S.Ct. 2275, 2283 (1998). To the extent that Officer Hawkins is complaining about Lt.
Zerbo's alleged "tunnel rat" or "undercover" comments, they
constitute stray remarks and are not sufficient to demonstrate
discriminatory animus or create a sufficiently actionable hostile
work environment. See Danzer v. Norden Systems, Inc.,
151 F.3d 50, 56 (2d Cir. 1998). The Plaintiff has not demonstrated
that Lt. Zerbo's alleged comments were attributable to any
employment action and has not asserted any allegations
sufficiently severe or pervasive by which he can establish a
claim of hostile work environment.
The § 1985 Claim Is Dismissed
Officer Hawkins also has alleged a conspiracy pursuant to
42 U.S.C. § 1985 between Defendants to deprive Plaintiff of his
civil rights. "A conspiracy is an agreement between two or more
individuals, where one individual acts in furtherance of the
objective of the conspiracy, and each member has knowledge of the
nature and scope of the agreement." Dove v. Fordham University,
56 F. Supp. 2d 330, 337 (citing to Burrell v. City University of
New York, 995 F. Supp. 398, 414 (S.D.N.Y. 1998)). To prevail on
a § 1985 claim, a plaintiff must show that the defendants
conspired and that the conspiracy was motivated by "some racial,
or perhaps otherwise class-based, invidiously discriminatory
animus." Mian v. Donaldson, 7 F.3d 1085, 1087. "A
constitutional conspiracy claim must [also] be pled with at least
some degree of particularity." Dove, at 338 (citing to Laverpool v. New York City Transit
Authority, 760 F. Supp. 1046, 1056 (E.D.N.Y. 1991)); Muniz v.
New York, 1997 U.S. Dist. LEXIS 14008 (S.D.N.Y. 1997).
Here, Officer Hawkins has offered no more than a general
statement that Defendants conspired to injure him and deprive him
of the opportunity to become a Detective Third Grade. See
Muniz, 1997 U.S. Dist. LEXIS 14008. Such a conclusory
allegation is insufficient to establish a § 1985 claim.
Furthermore, as a matter of law, a conspiracy among the
Defendants named in this action cannot be established because
they are part of a single entity. "Officials of a single
government entity, acting in their official capacities cannot
conspire among themselves or with the entity within the meaning
of § 1985." McEvoy v. Spencer, 49 F. Supp. 2d 224, 226
(S.D.N.Y. 1999) citing Sharpe v. Long, 842 F. Supp. 197, 201
(D.S.C. 1992); see also Gatling v. Fashion Assoc., No. 98
Civ. 2252 (LMM), 1999 U.S. Dist. LEXIS 12967 at *6-7 (S.D.N.Y.
Aug. 18, 1999).
The Monell Claim Is Dismissed
In order to hold the City liable under §§ 1981 or 1983, Officer
Hawkins must show that his civil rights were violated as a result
of a municipal policy or custom. See City of Canton Ohio v.
Harris, 489 U.S. 378, 385 (1989); Oblio v. City Univ. of N.Y.,
2003 U.S. Dist. LEXIS 2886, *43 (E.D.N.Y. February 28, 2003); Davis
v. City of New York, 228 F. Supp. 2d 327, 336-37 (S.D.N.Y.
Even assuming, arguendo, that Officer Hawkins established the
existence of constitutional violations in this case, he has not
adduced any evidence that the NYPD or the City has a custom or
policy of discriminating against African-Americans who worked as
investigators for Narcotics Division. See Davis,
228 F. Supp. 2d at 336-37. In the absence of any such record evidence,
Plaintiff's claims of municipal liability under §§ 1981 and 1983
fail as a matter of law. See Santiago v. Committee of City
Marshals, No. 84 Civ. 3984 (LLS), 1987 U.S. Dist. LEXIS 1217 at
*11-13 (S.D.N.Y. Feb. 20, 1987).
Officer Hawkins's due process rights have not been violated
namely because he cannot establish that he had been intentionally
deprived of property or a liberty interest. Plaintiff complains
that he was transferred from an elite unit but fails to provide
any authority that assignment to a unit constitutes a property or
Additionally, due process is not violated even if an employee
has been intentionally deprived of a property or liberty interest
as long as the state provides an adequate post-deprivation
remedy. See Hellenic Am. Neighborhood Action Committee v. City
of New York, 101 F.3d 877, 880 (2d Cir. 1996) (citing Hudson
v. Palmer, 468 U.S. 517, 532 (1984)). The Second Circuit has held
that an Article 78 proceeding is an adequate post-deprivation
remedy under the Due Process clause and that there is no
constitutional violation and no readily available vehicle by
which Plaintiff may bring a § 1983 claim before the federal
courts. Id. at 881; see also Grillo v. New York City
Transit Auth., 291 F.3d 231 (2d Cir. 2001). To the extent that
Plaintiff is alleging that his due process rights were violated
because the City or the NYPD did not provide him with a hearing,
he cannot demonstrate that he did not have a post-deprivation
remedy through an Article 78 hearing.
The Tort Claims Are Dismissed
New York law requires an individual to serve a notice of claim
before commencing any action for damages for personal injury or
property damage against the City of New York or its employees.
See N.Y. Gen. Munic. Law §§ 50-e, 50-i. The purpose of the
notice-of-claim requirement is to afford the municipality an
adequate opportunity to investigate the claim in a timely and
efficient manner and, where appropriate, to settle claims without
the expense and risks of litigation. See Fincher v. County of
Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997); see
also Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 62 (1984)
(per curiam). A notice of claim generally must be served within ninety days
of the date when the claim arises. See N.Y. Gen. Munic. Law §
50-e(1)(a). Furthermore, the notice "shall set forth," among
other things, "the time when, the place where and the manner in
which the claim arose." Id. § 50-e(2). See Hardy v. N.Y.
City Health and Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999);
see also Fincher v. County of Westchester,
979 F. Supp. 989, 1002 (S.D.N.Y. 1997) (noting that New York's 90-day
notice-of-claim requirement applies to state tort claims brought
as pendent claims in a federal action).
Here, Officer Hawkins has claimed that the individually named
Defendants placed false statements in his interim evaluation
which had the effect of "blacklisting" Plaintiff within the NYPD
such that he could not advance in his career. Accordingly,
Hawkins alleges that the individually named Defendants committed
the torts of slander and libel per se against him on December 15,
1998. The Plaintiff, however, fails to allege or establish that
he has filed a notice-of-claim in compliance with GML §§ 50-e,
50-i. Therefore, any state tort claim against the individual
defendants must be dismissed.
In addition, to establish a cause of action for defamation,
libel or slander, a plaintiff must prove the following elements:
(1) a false and defamatory statement; (2) an unprivileged
publication to a third party; (3) fault amounting to at least negligence in the unprivileged publication; and (4) the statement
must be defamatory per se or it must have caused special harm.
See Restatement 2d (Torts) § 558.
Failure to state the particular person or persons to whom the
allegedly slanderous or libelous comments were made as well as
the time and manner in which the publications were made warrants
dismissal. See Loria v. Plesser, 699 N.Y.S.2d 438,
267 A.D.2d 213 (2d Dep't 1999); see also Gill v. Pathmark Stores,
655 N.Y.S.2d 623, 237 A.D.2d 563 (2d Dep't 1997); Ott v. Automatic
Connector, Inc., 598 N.Y.S.2d 10, 193 A.D.2d 657 (2d Dep't
1993). Here, the Plaintiff alleges that "[d]uring December, 1998
[d]efendants March, Turner, and Zerbo intentionally and willfully
made false representations of fact about the plaintiff and his
employment, his character and professional standing to other
supervisors of [p]laintiff with [the] NYPD." The failure to
identify both the individuals to whom the statement allegedly was
made and the content of that statement is fatally defective to
his attempt to state a libel or slander cause of action. See
Horowitz v. Aetna Life Ins., et. al., 539 N.Y.S.2d 50,
148 A.D.2d 584 (2d Dep't 1989). If the Plaintiff is only complaining
about remarks in his interim evaluation, he has failed to state a
cause of action for libel or slander because criticism of an
employee's work performance is subjective opinion and constitutes
protected speech. See Angel v. Levittown Union Free Sch. Dist.
No. 5, 567 N.Y.S.2d 490, 171 A.D.2d 770 (2d Dep't 1991). As
such, the complaint fails to state a cause of action sounding in libel or slander against
the individual Defendants.
In addition, the individual Defendants are protected by a
qualified privilege. "A qualified privilege arises when a person
makes a bona fide communication upon a subject in which he or she
has an interest, or a legal, moral, or social duty to speak, and
the communication is made to a person having a corresponding
interest or duty." Santavicca v. City of Yonkers,
518 N.Y.S.2d 29, 132 A.D.2d 656, 657 (2d Dep't 1987). Communications are
regarded as privileged where the occasion and the relation of the
parties afford reasonable grounds for supposing an innocent
motive for giving the information. Id. at 661-62.
Moreover, to the extent that statements are made about an
employee in an employment context, they qualify as privileged
since such statements were made by one person to another upon a
subject in which they have a common interest. See Williams v.
Varig Brazilian Airlines, 564 N.Y.S.2d 328, 169 A.D.2d 434, 438
(1st Dep't. 1991); Hollander v. Cayton, 536 N.Y.S.2d 790,
145 A.D.2d 605 (2d Dep't 1988).
The shield of privilege is pierced only by a plaintiff's
showing of actual malice. See Hollander, 145 A.D.2d at 606.
"To overcome a qualified privilege, it is plaintiff's burden to
show actual malice." Buckley v. Litman, 57 N.Y.2d 516, 521
(1982). Plaintiff must plead facts showing that the statement was made
with a high degree of awareness of its probable falsity, or that
defendant entertained serious doubts as to the truth of the
publication. Liberman v. Gelstein, 80 N.Y.2d 429, 438 (1992).
The conclusory pleading of the word "malice" is insufficient.
Doherty v. N.Y. Tel. Co., 609 N.Y.S.2d 306, 202 A.D.2d 627, 628
(2d Dep't 1994).
In addition to failing even in conclusory manner to plead
"malice," Plaintiff has made no attempt to plead allegations
which might show that Defendants Sgt. Turner, Capt. March, or Lt.
Zerbo either made the alleged statement with a high degree of
awareness of its probable falsity or with serious doubts as to
the truth of the matter contained in the alleged statements. The
Plaintiff has failed to overcome his burden of showing a genuine
issue of actual malice.
Finally, special damages are a necessary element of defamation,
malicious prosecution, abuse of process, and prima facie
tort. See Mullenmeister v. Snap-On-Tools Corp.,
587 F. Supp. 868, 873-874 (S.D.N.Y. 1984) (the published association of
plaintiff with a swastika insufficient to establish a claim of
libel per se because no reasonable jury would find special
damages); see Engle v. CBS, Inc., 93 N.Y.2d 195 (1991). The
failure to plead and inability to prove special damages requires
dismissal of these claims. Id.; see also Fed.R.Civ.P.
9(g). Plaintiff was not demoted or terminated and therefore has not
suffered special damages which are "actual temporal damages
causally related to the alleged acts." John and Vincent Arduini
Inc., 129 F. Supp. 2d at 174. Plaintiff was subjected to a
lateral transfer in which he maintained the title "police
officer" and as such cannot show he has suffered any special
Officer Hawkins has failed to establish his claims against the
individual Defendants for libel and slander.
For the reasons set forth, Defendants' motion for summary
judgment is granted and the complaint is dismissed.
It is so ordered.