United States District Court, S.D. New York
October 11, 2005.
TERRENCE C. RIVERA, Plaintiff,
THE CITY OF NEW YORK and KIMBERLY NORTON, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants the City of New York (the "City") and Kimberley
Norton ("Dr. Norton") (collectively, the "Defendants"), have
moved pursuant to Rule 56, Fed.R.Civ.P., to dismiss the
complaint of Terrence C. Rivera ("Rivera"). For the reasons set
forth below, the motion is granted.
On April 11, 2000, Rivera filed his complaint in the Supreme
Court of the State of New York, County of Kings, alleging in his
first cause of action, discrimination based upon national origin,
gender, heterosexuality, marital status, and veteran status,
violating his rights to equal protection, due process, and civil
rights; in his second cause of action the violation of his rights
under the New York State Constitution, the Human Rights Law,
Executive Law § 296, and the New York City Human Rights Law (New
York City Administrative Code § 8-101 et seq.); and in his
third cause of action tortious interference with contract,
emotional distress, prima facie and wilful tort, breach of
agreement, negligence misrepresentation, fraud and deceit, all to
his damage in the amount of $10 million dollars, including
punitive damages and attorney's fees. He alleges that the
Defendants discriminated against him on the basis of his national
origin ("Latin American"), sexual orientation ("Heterosexual"),
gender ("male"), marital status ("married man"), and status as a veteran, in violation of
42 U.S.C. § 1983, the New York State Human Rights Law, codified
at N.Y. Exec. Law § 290 et seq. ("SHRL"), and the New York
City Human Rights Law, codified at N.Y.C. Admin. Code § 8-101
et seq. ("CHRL") when they concluded in 1998 that he was then
psychologically unfit for the duties of a police officer. The
action was removed to this Court on April 25, 2000.
Discovery proceeded and the instant motion was heard and marked
fully submitted on March 9, 2005.
The facts are set forth in the Defendants' Local Rule 56.1
Statement and the Plaintiff's Response to Defendants' Rule 56.1
Statement and are not in dispute except as noted below.
In early 1998, Rivera applied for the position of police
officer with the New York City Police Department ("NYPD"). He
took Civil Service Exam No. 7053 and ranked 28 out of 16,082.
After taking the written police exam, he was contacted by an NYPD
investigator who informed him that he scored highly on the
examination and recommended that Rivera try entering the police
academy class beginning in September 1998. Rivera received a
letter stating "steps to being accepted to the academy." The Notice of Examination for Exam No. 7053 stated that police
officer candidates were subject to psychological tests and that
eligible candidates would be rejected for any psychological
condition which impaired their ability to perform the duties of a
police officer in a reasonable manner, or which would reasonably
be expected to render them unfit to continue to perform those
duties in a reasonable manner.
On August 19, 1998, Rivera was examined by an NYPD
psychologist, Dr. Norton, to determine whether he was
psychologically suitable for employment as a police officer. In
her report of December 1, 1998 ("Dr. Norton Report"), Dr. Norton
noted that Rivera had reported that he recently separated from
his wife, that he felt "down" about that for a while, and that
"while [Rivera] did not go into much detail about the substance
of the marital discord, managing his family life and his job
became so stressful that he left the Navy under a hardship
discharge" (Dr. Norton Report at 131). She also reported that
after he was discharged from the military in early 1998, Rivera
claimed he had difficulty sleeping for two weeks. In describing
his then-recent discharge and separation from his wife, Dr.
Norton noted that Rivera apparently had "difficulty handling the
interpersonal stress of his marriage and the responsibilities of
his job, and he admitted to feeling down around the time of
recent marital and job separation." (Id.). Dr. Norton also
noted that Rivera told her that when he was eight years old, he
observed his father physically abuse his mother, and that as a result, he experienced nightmares and had difficulty
sleeping for several months after the incident. (Id.).
Dr. Norton concluded that Rivera's childhood experience raised
"concern about his ability to tolerate the stress of police work"
(id. at 134) and that during the interview Rivera "came across
as more anxious than most PO Cds [police officer candidates]. He
had very little eye contact during the interview even after being
asked to try to maintain some eye contact" (id. at 133), and
that "at this point, the cd [candidate] is still adjusting to the
stress of his marital separation." He said, "it's still bugging
me." "He agrees that he still felt down now. Thus the marital
situation is unresolved currently." (Id. at 134).
Dr. Norton also noted that Rivera also said about his current
unemployment, he was "trying to adjust to civilian life" (id.),
and she concluded that Rivera was "currently experiencing stress
and adjustment problems, as evidenced by his life history and
interview behavior" (Id. at 133) and determined that Rivera was
not psychologically suited to perform the duties of a police
officer at that time. (Id. at 134). According to Rivera, Dr.
Norton's conclusions were false and pretextual, and he has
challenged her report of the interview as inaccurate, biased, and
marked by ill will. Following standard procedure, after Dr. Norton's conclusion,
the Director of Psychological Services, Dr. Eloise Archibald,
reviewed Rivera's psychological folder and concluded that Dr.
Norton's decision to reject Rivera as psychologically unsuited
for police work should be sustained.
Rivera was informed by letter dated January 14, 1999 that he
had not met the requirements for the position of police officer
and advised him of his right to appeal his disqualification.
Rivera appealed his disqualification and retained a
psychologist, Dr. Robert Daley, to submit a report on his behalf.
Dr. Daley concluded Rivera qualified, with no patterns of
As a part of the NYPD's internal appeal process, the contents
of the NYPD's Psychological Services Record on Rivera and Dr.
Daley's December 23, 1999 report were submitted to an outside
consultant, Dr. Robert Arko, for review.
After reviewing the records, Dr. Arko concluded the new
material submitted by Rivera's doctor was insufficient to mandate
changing the original recommendation for rejection. Accordingly,
in his report dated January 21, 2000, Dr. Arko recommended that
Rivera's appeal be denied. Rivera then pursued his appeal to the New York City Civil
Service Commission, and while that appeal was pending, Rivera was
re-interviewed by another NYPD psychologist, Dr. Dayle
Schwarzler, on February 4, 2002.
During the period between his initial psychological interview
in August 1998 and his second interview in February 2002, Rivera
had attended Hunter College from January to June 1999, worked for
the New York Blood Center from June 1999 to January 2001, and was
appointed a firefighter with the New York City Fire Department
("FDNY") in February 2001. According to Rivera, his performance
in these jobs and while in the United States Navy has been
exemplary and free from stress-related problems. He was found
qualified to be a firefighter and to be without psychiatric
disorder by the FDNY psychiatrist.
Dr. Schwarzler determined that the psychological issues
previously identified had been satisfactorily resolved, and
recommended that Rivera's disqualification be rescinded. In early
2002, Rivera was reinstated on the eligibility list for police
officer candidates, and the NYPD offered to start processing his
Rivera withdrew his application from the NYPD and had his name
removed from the list of eligible police candidates. He has
alleged economic loss of $146,000. During his deposition in this action, Rivera stated that he had
no specific evidence regarding Dr. Norton's alleged
discrimination and stated that he simply had "just the feeling
that there was nothing to disqualify [him], so there had to be
another factor." (Rivera Depo. 94-95).
During his deposition, Rivera was asked the following questions
and gave the following answers:
Q: Now, do you have the opinion that Dr. Norton was
biased against you because of your Latin background?
A: I feel it was definitely not based on my
qualifications. It seemed like I was over-qualified
for the job. I felt this was something, either
racially or otherwise, motivated for her.
Q: Is there anything specific that makes you think
that she was racially motivated?
A: She didn't say. . . . Nothing specific.
(Depo. at 93-94).
* * *
Q: Is there any information you have that might lead
to the conclusion that she was biased against you
because you were married?
A: Just on the same grounds. On pretty much by the
racial, just the feeling that there was nothing to
disqualify me, so there had to be another factor.
(Depo. at 94).
* * * Q: Do you have any information that would lead a
person to the conclusion that she was biased against
you because you were heterosexual?
A: Nothing specific, no.
(Depo. at 94).
* * *
Q: Do you have any information tending to show that
Dr. Norton was biased against you because you were
A: Nothing specific.
Q: The same question, tending to show that she was
biased against you because you had service in the
A: Just by the way any time I mentioned military she
would cut me off. Didn't mention it at all during my
(Depo. at 95).
When Rivera was asked for specific information regarding an
NYPD custom, policy, or practice of discrimination, he responded,
"Just from what I read, you know, discrimination cases, and
pattern of not the same thing, but just a pattern of
discrimination throughout the department." (Rivera Depos. at
Rivera filed a Notice of Claim on April 14, 1999, alleging
violation of his rights under the United States Constitution, New
York Constitution, Federal Civil Rights Law, New York Human
Rights Law, and breach of duty, breach of agreement and wilful
tort, and did not include allegations of intentional or negligent infliction of emotional distress, tortious interference
with contract, prima facie tort, negligent misrepresentation,
or fraud and deceit.
The Applicable 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,
91 L. Ed. 2d 265, 106 S. Ct. 2548 (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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (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, "summary
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 salutary 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. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).
This is so because "employers 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 same analytical framework used for evaluating a Title VII
discrimination claim applies to Rivera's claims under § 1983, the
SHRL, and the CHRL. See Annis v. County of Westchester,
136 F.3d 239, 245 (2d Cir. 1998) (applying the burden shifting
framework of Title VII to § 1983 claims); Song v. Ives Labs.,
Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (state claims);
Abdu-Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001) (SHRL and
CHRL claims), cert. denied, 534 U.S. 993, 122 S.Ct. 460
Under the framework set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a
plaintiff asserting a claim of discrimination must first
establish a prima facie case. To establish a prima facie
case, a plaintiff must point to record evidence showing that: (1)
he is a member of a protected class; (2) he applied for and was
qualified for a job for which the employer was seeking
applicants; (3) despite his qualifications, he was rejected; and
(4) his rejection occurred in circumstances giving rise to an
inference of discrimination on the basis of his membership in
that protected class. McDonnell Douglas, 411 U.S. at 802;
Rosen v. Thornburgh, 928 F.2d 528, 531 (2d Cir. 1991); Meiri
v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985), cert. denied,
474 U.S. 829 (1985). If that prima facie case is established,
the burden of production, but not persuasion, shifts to the
employer to set forth a legitimate non-discriminatory reason for
the non-selection. St. Mary's Honor Society v. Hicks,
509 U.S. 502, 509 (1993). Once the employer has met its burden of showing
a legitimate, non-discriminatory reason for the employment
action, the employee must then show that the reason advanced is
pretextual i.e., that it masks the employer's true
discriminatory reason for its actions. See Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). Rivera Has Not Established A Prima Facie Case of Employment
As a preliminary matter, it remains unsettled in this Circuit
whether a plaintiff who is in a majority group, as is Rivera here
with respect to his claims that he was discriminated against
because he is a married heterosexual male, must allege special
circumstances to assert a discrimination claim, e.g., that
"background circumstances support the suspicion that the
defendant is that unusual employer who discriminates against the
majority." Olenick v. N.Y. Tel., 881 F. Supp. 113, 114
(S.D.N.Y. 1995) (adopting the requirement for majority
plaintiffs), citing Parker v. Baltimore & Ohio R.R. Co.,
652 F.2d 1012, 1017 (D.C. Cir. 1981). But see Tappe v. Alliance
Capital Mgmt., 177 F. Supp. 2d 176, 181 (S.D.N.Y. 2001)
(rejecting the heightened requirement in "reverse discrimination"
Further, there is no basis for Rivera to bring § 1983 claims of
alleged discrimination on the basis of either his status as a
veteran or his marital status. Phillips v. Merchants Ins.
Group, 990 F. Supp. 99, 101 (N.D.N.Y. 1998) (no claim under §
1983 based on Vietnam Era veteran status); Philippeaux v. North
Cent. Bronx Hospital, 871 F. Supp. 640, 648 (S.D.N.Y. 1994)
(same) aff'd in an unpublished opinion, 104 F.3d 353 (2d Cir.
1996), decision reported in full at 1996 U.S. App. LEXIS 3076 (2d
Cir. Nov. 22, 1996), cert. denied, 117 S.Ct. 1110 (1997);
Julian v. New York City Transit Authority, 857 F. Supp. 242,
250 n. 2 (E.D.N.Y. 1994) (no claim under § 1983 based on marital status), aff'd in an
unpublished opinion, 52 F.3d 312 (1995).
Procedural Due Process
Plaintiff has alleged that the NYPD failed to provide a
meaningful appeal in violation of the procedural due process
guarantee of the Fourteenth Amendment. The Second Circuit has
stated that the elements of a procedural due process claim are as
follows: (1) that the plaintiff possessed a constitutionally
protected interest, (2) that such interest was deprived as a
result of government action, (3) and that the deprivation
occurred without constitutionally adequate pre- or
post-deprivation process. N.Y. State NOW v. Pataki,
261 F.3d 156, 163 (2d Cir. 2001) (citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 428, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982)).
On this record, Rivera has presented a factual issue as to his
qualification as a police officer. Although three different
psychologists, namely, Dr. Norton, another NYPD psychologist, and
an outside consultant, all concluded that, as of January 2000,
Rivera was not qualified to be considered for a position as a
police officer, Dr. Daley's report and the subsequent
examinations of Rivera present a factual issue as to his
qualification. However, Rivera has not established that Defendants made a
final rejection of him for this position. His disqualification
was rescinded and he was restored to the eligibility list after
which he withdrew his application from the NYPD and had his name
removed from the list of eligible police candidates.
According to the Defendants, there is no property interest in
appointment or in being found psychologically suited for police
work. NOW v. Pataki, 261 F.3d at 164 (2d Cir. 2001) ("Where, as
here, a purported property interest is contingent on the exercise
of executive discretion, no legitimate claim of entitlement
exists.") In McMenemy v. City of Rochester, 241 F.3d 279,
287-88 (2d Cir. 2001), the Circuit held that there was no
constitutionally cognizable interest in a competitive
examination. The Circuit has also held that even an employee of
the City serving a probationary period does not have a
constitutionally cognizable interest in employment and therefore
need not be provided with any particular process in the course of
the employee's dismissal from service. Finley v. Giacobbe,
79 F.3d 1285, 1296 (2d Cir. 1996); see Jannsen v. Condo,
101 F.3d 14 (2d Cir. 1996). It also has long been held that an
applicant for a job has no property interest in the job.
MacFarlane v. Grasso, 696 F.2d 217, 221-22 (2d Cir. 1982).
Rivera has cited Locurto v. Giuliani, 269 F. Supp. 2d 368
(S.D.N.Y. 2000), as support for his due process clause claim. In that case, however, unlike in the present case, the three city
employees had been appointed to titles in the City's police and
fire services. The Locurto plaintiffs had a property interest
in their jobs and had a right to pre-deprivation process before
being deprived of that constitutionally cognizable interest.
See Cleveland Board of Education v. Loudermill, 470 U.S. 532,
Rivera has focused primarily on the question of whether the
initial decision made by the NYPD was correct or not. (Rivera's
Memo at 9-17). Defendants have conceded for purposes of this
summary judgment motion that there is a genuine issue of fact
concerning the correctness of the initial decision that Rivera
was not psychologically suited to police work. The Constitution
does not guarantee that the executive branch will always exercise
its discretion to arrive at a correct decision. Bishop v. Wood,
426 U.S. 341, 349-50 (1976) ("The Due Process Clause of the
Fourteenth Amendment is not a guarantee against incorrect or
ill-advised personnel decisions.").
In any event, Rivera received procedural due process. Dr.
Norton's Report was reviewed, the disqualification was appealed,
Rivera submitted the report of Dr. Daley, an outside consultant
reviewed both Dr. Daley's report and NYPD's Psychological
Services Record, and Rivera appealed to the Civil Service
Commission, a process that included yet another psychological review by Dr. Schwarzler, and a full evidentiary hearing was also
ordered. (Rivera's Memo at 13-14). Even assuming Rivera did have
a property interest in employment, under the Parratt-Hudson
line of cases, this extensive post-deprivation process would be
more than adequate to provide Rivera with all the process due.
See McMenemy, 241 F.3d at 289; Parratt v. Taylor,
451 U.S. 527 (1981), overruled in part on other grounds, Daniels v.
Williams, 474 U.S. 327 (1986); see also Hudson v. Palmer,
468 U.S. 517 (1983).
Substantive Due Process
"Substantive due-process rights guard against government's
exercise of power without any reasonable justification in the
service of a legitimate governmental objective." Tenenbaum v.
Williams, 193 F.3d 581, 600 (2d Cir. 1999) (citing County of
Sacramento v. Lewis, 523 U.S. 833, 843, 140 L. Ed. 2d 1043,
118 S. Ct. 1708 (1998)) (internal quotation marks omitted).
In the instant case, Rivera essentially has claimed that
because the decision to psychologically disqualify him was
"wrong" that his right to substantive due process was violated.
As the Circuit has held, substantive due process is not a
"catchall" designed to review every exercise of discretion by the
coordinate branches of government. Natale v. Town of
Ridgefield, 170 F.3d 258, 259 and 263 (2d Cir. 1999)
("Substantive due process standards are violated only by conduct
that is so outrageously arbitrary as to constitute a gross abuse of governmental authority.");
Kaluczky v. White Plains, 57 F.3d 202, 211 (2d Cir. 1995)
("[s]ubstantive due process protects against government action
that is arbitrary, conscience shocking or oppressive in a
constitutional sense but not against government action that is
"incorrect or ill-advised"). Rivera must show more than that the
Defendants were simply wrong. Rivera has failed to show that
there could not possibly be any debate about the issue and that
the decision itself was a gross abuse of governmental power.
To show that there has been a violation of the Equal Protection
Clause, Rivera must show that the Defendants' decision was
motivated by discriminatory animus. Personnel Administrator v.
Feeney, 442 U.S. 256 (1979).
Rivera seeks to prove an equal protection violation based upon
a "class of one" or to allege selective prosecution. See
Rivera's Memo at 17 (citing Village of Willowbrook v. Olech,
528 U.S. 562 (2000) (per curiam) (a valid equal protection claim
may be brought by a "class of one" "where the plaintiff alleges
that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment."); and LeClair v. Saunders,
627 F.2d 606, 608 (2d Cir. 1980), cert. denied, 450 U.S. 959 (1981)).
The Second Circuit has repeatedly held that viable selective enforcement claims based on
the Equal Protection Clause require proof that (1) the person,
compared with others similarly situated, was selectively treated;
and (2) that such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad
faith intent to injure a person. LeClair, 627 F.2d at 609;
Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995).
Rivera has not submitted evidence of "malicious or bad faith
intent" on the part of Dr. Norton or the NYPD. He has alleged
that Dr. Norton seemed angry and agitated while evaluating him;
that she harassed him and did not let him answer certain
questions; and that she did not want him to talk about his life
in the Navy. (Rivera's Memo at 3). Such allegations of malice do
not support an Equal Protection claim. See LeClair,
627 F.2d at 610-11 (holding that six elements of evidence, including that
the inspector was in a spiteful mood due to an earlier incident
with another farmer and performed an unusually detailed
inspection did not constitute a showing that he acted maliciously
or with intent to injure); Bizzarro v. Miranda, 394 F.3d 82, 87
(2d Cir. 2005) (holding that while defendant was "enraged,"
"engulfed with anger" and was "screaming" at plaintiff, there was
not a showing that he acted out of personal animus). After the Court's holding in Olech, there has been some
debate as to whether there still exists a requirement that there
be a showing of deliberate malicious intent, but the Second
Circuit has not yet abandoned it. See Giordano v. City of New
York, 274 F.3d 740, 750-51 (2d Cir. 2001). In any case, under
Olech, Rivera must still show not only that the Defendants'
actions were irrational and wholly arbitrary, but also that
Defendants intentionally treated him differently from others
similarly situated without any rational basis for the difference
in treatment. 528 U.S. at 564; Giordano, 274 F.3d at 751. The
case Rivera has cited, Millar v. Ojima, 354 F. Supp. 2d 220
(E.D.N.Y. 2005), is of no avail, as it holds that both prongs of
the LeClair test must be satisfied, and Rivera in this case has
not made a showing similar to the plaintiffs in Millar.
Furthermore, even if Rivera had been treated differently than a
similarly situated individual, Rivera has not established that
Defendants' actions lacked a rational basis. See Bizzarro,
394 F.3d at 88-89 ("Olech does not empower federal courts to
review government actions for correctness. Rather, an
Olech-type equal protection claim focuses on whether the
official's conduct was rationally related to the accomplishment
of the work of their agency."). Rivera Has Not Established That He Suffered An Adverse
Rivera contends that Dr. Norton's original determination
constituted an actionable adverse employment action and that the
resulting disqualification was not temporary. "There is no Title
VII violation absent a materially adverse change in the terms and
conditions of employment." McKenney v. New York City Off-Track
Betting Corp., 903 F. Supp. 619, 623 (S.D.N.Y. 1995).
In Davis v. City University of New York, 1996 U.S. Dist.
LEXIS 6345 (S.D.N.Y. 1996), the court held that Davis'
allegations that defendants "delayed and nearly succeeded in
depriving her" of tenure, and "attempted to improperly block" her
promotion, were insufficient to establish an adverse employment
action. Although an outright denial of a promotion would
constitute an adverse employment action, the court held that
because Davis eventually received the promotion, she had not
established a prima facie case of discrimination. The court
The eventual grant of tenure and a promotion to
Davis, even if after a delay, and even if that delay
were due to discrimination or retaliation,
contradicts her claim that she suffered a materially
adverse change. Her allegations therefore do not make
out a prima facie case under Title VII, § 1981, or
the HRL, and the tenure and promotion claims made
pursuant to those provisions must be dismissed. Davis at *24. See also Galabya v. New York City Board of
Education, 202 F.3d 636, 640 (2d Cir. 2000) (delay in
reassignment does not constitute adverse employment action);
Evans v. City of New York, 2003 U.S. Dist. LEXIS 18281, *31-32
(S.D.N.Y. Oct. 9, 2003) (eleven-month delay in processing salary
increase is not an adverse employment action).
Even if it is assumed that the initial psychological
disqualification did constitute an adverse employment action, a
refusal to hire, Rivera has not established that it took place
under circumstances giving rise to an inference of
discrimination. Examples of how a plaintiff could show that the
circumstances support an inference of discrimination have been
set forth in Chambers v. TRM Copy Ctr. Corp., 43 F.3d 29, 37
(2d Cir. 1994), including the sequence of events leading to
discharge; more favorable treatment of others outside the
protected group; degrading comments made in criticism of
plaintiff's job performance; and invidious comments regarding
others in plaintiff's protected group.
No allegedly discriminatory remark is attributed to Dr. Norton.
Rivera has contended that Dr. Norton possessed an angry demeanor
towards him and persisted in trying to solicit more specific
responses to questions posed to him and became agitated when
Rivera failed to pay attention to her. (Rivera's Depo. at 64-65).
When asked the basis for believing that Dr. Norton's demeanor and subsequent negative evaluation were motivated by
discrimination, Rivera replied that he had "nothing specific" to
support his allegations and that he simply had "the feeling that
there was nothing to disqualify [him], so there had to be another
factor." (Rivera's Depo. at 94-95).
In the absence of evidence that Dr. Norton, or anyone else at
the NYPD, acted against Rivera for discriminatory reasons, Rivera
has not stated a prima facie case. See Stern v. Trustees
of Columbia University, 131 F.3d 305, 311-12 (2d Cir. 1997).
Rivera Has Not Established A Pretext For Discrimination
Under the burden-shifting analysis set forth above, if a
plaintiff establishes a prima facie case, the burden of
production, but not persuasion, shifts to the employer, to show
that any adverse employment actions were taken for legitimate,
nondiscriminatory reasons. St. Mary's Honor Society v. Hicks,
509 U.S. 502, 509 (1993). Once the defendant produces such
evidence, "the presumption raised by the prima facie case is
rebutted, and drops from the case." Id. at 511. At that point,
the governing standard is simply whether the evidence, taken as a
whole, is sufficient to support a reasonable inference that
prohibited discrimination occurred." James v. New York Racing
Ass'n., 233 F.3d 149, 156 (2d Cir. 2000). Here, even if Rivera
had met his prima facie burden, the Defendants have met their
burden of production, and Rivera has not shown that a reasonable jury could find that the Defendants'
proffered reasons are a pretext for discrimination.
The reasons for disqualifying Rivera from consideration for the
position of police officer have been established to include: Dr.
Norton's observations and conclusions relating to stress
tolerance, his recent separation, his recollections and reactions
in early childhood, Dr. Norton's view of Rivera's demeanor and
anxiety. Dr. Norton's conclusions were supported by both another
NYPD psychologist and an outside consultant. Accordingly, the
Defendants have met their minimal burden of setting forth
legitimate, nondiscriminatory reasons for the employment actions
taken against Rivera. See Pimentel v. City of New York,
2001 U.S. Dist. LEXIS 20426, *23, 87 Fair Empl. Prac. Cas. (BNA) 960
(S.D.N.Y. 2001) aff'd, 74 Fed. Appx. 146 (2d Cir. 2003).
Rivera in response has offered only conclusory allegations.
Such allegations are insufficient, as a matter of law, to bring
his case to a jury. See Hawana v. City of New York,
230 F. Supp. 2d 518, 528 (S.D.N.Y. 2002) (noting that defendants'
explanation is buttressed when the record shows that multiple
persons support the allegedly adverse employment decision);
Gorham v. Transit Workers Union Local 100, 1999 U.S. Dist.
LEXIS 3573, *12 (S.D.N.Y. Mar. 22, 1999), aff'd without
published opinion, 205 F.3d 1322 (2d Cir.), cert. denied,
531 U.S. 884 (2000). As shown in the excerpts of his deposition, Rivera's
allegations that Dr. Norton was annoyed, agitated, and hostile
during the interview are insufficient to support a claim of
discrimination. See Jetter v. Knothe Corp.,
200 F. Supp. 2d 254, 266 (S.D.N.Y. 2002), aff'd, 324 F.3d 73 (2d Cir. 2003);
Hawana, 230 F. Supp. 2d at 538.
As the Second Circuit recently observed:
Everyone can be characterized by sex, race,
ethnicity, or (real or perceived) disability; and
many bosses are harsh, unjust, and rude. . . . It is
therefore important in [alleged discrimination] . . .
cases to exclude from consideration personnel
decisions that lack a linkage or correlation to the
claimed ground of discrimination. Otherwise the
federal courts will become a court of personnel
Alfano v. Costello, 294 F.3d 365
, 377 (2d Cir. 2002).
Accordingly, Rivera's claims under § 1983, the SHRL, and the
CHRL are dismissed.
Rivera Has Not Established Monell Liability
To hold a municipal entity liable under § 1983 for the
unconstitutional acts of its employees, a plaintiff must plead
and prove that his constitutional rights were violated, that the
alleged actions by the employees were the result of an official
policy, custom, or practice of the municipal defendant, and that the policy, custom, or practice caused the plaintiff's alleged
injuries. City of Canton, Ohio v. Harris, 489 U.S. 378, 385
(1989); Monell v. New York City Dep't of Social Servs.,
436 U.S. 658, 690-95 (1978); McDonald v. Board of Education,
2003 U.S. Dist. LEXIS 11338, *8 (S.D.N.Y. July 31, 2003). Proof of a
single incident of unconstitutional activity is insufficient to
demonstrate the existence of a policy. City of Oklahoma v.
Tuttle, 471 U.S. 808, 821 (1985).
Here, the City is not liable because there was no underlying
violation. City of Los Angeles v. Heller, 475 U.S. 796 (1986)
rehearing denied, 476 U.S. 1154 (1986). Moreover, there is no
evidence that any alleged unconstitutional acts were part of a
municipal policy, practice, or custom. Rivera has not even
alleged what policy, practice, or custom caused his injuries,
much less presented any evidence to support such an allegation.
Indeed, there is no record evidence even to suggest that other
persons of Latin American national origin, other males, other
heterosexuals, and/or other married persons were denied positions
as police officers. Finally, the fact that Rivera's temporary
disqualification was rescinded by the NYPD eviscerates any
otherwise applicable claim of municipal liability. See
McDonald, 2003 U.S. Dist. LEXIS 11338, *16-17. Accordingly, the
§ 1983 claims against the City are dismissed. The Common Law Claims Are Dismissed
Although Rivera has alleged that several weeks after taking the
written police exam in 1998 he was contacted by an NYPD
investigator who informed him that he scored highly on the
examination and recommended that he try entering the police
academy class beginning in September 1998, and that shortly after
his initial phone conversation with the NYPD investigator he
received a letter stating "steps to being accepted to the
academy," Rivera has not alleged that this letter included any
definitive terms of employment. At most, the NYPD encouraged
Rivera to move forward in taking the necessary steps to becoming
an officer. Accordingly, his contract claim fails as a matter of
law. See O'Reilly v. Citybank, N.A., 603 N.Y.S.2d 572, 573
(2d Dep't. 1993) (no employment contract exists where there is no
record evidence that the employee would be guaranteed a
Promissory Estoppel Claim
Rivera also has not established a claim of promissory estoppel.
In New York, the party asserting estoppel must prove (1) lack of
knowledge of the true facts; (2) reliance upon the conduct of the
party estopped; and (3) a prejudicial change in his position.
BWA Corp. v. Alltrans Express U.S.A., Inc., 112 A.D.2d 850, 853 (App.Div. 1st Dep't 1985) (quoting Airco Alloys Div.
v. Niagra Mohawk Power Corp., 76 A.D.2d 68, 81-82). Rivera has
not demonstrated that the City made false representations or
concealed "material facts," which were "calculated to convey the
impression that the facts [were] otherwise than and inconsistent
with, those which the party subsequently seeks to assert." Id.
(quoting 21 N.Y. Jur., Estoppel, § 21). Rivera has offered no
evidence to suggest that the statements by NYPD employees were
calculated to mislead him into believing he was guaranteed
employment. In addition, the First Department has held that, as a
matter of law, "change of job or residence, by itself, is
insufficient to trigger invocation of the promissory estoppel
doctrine." Cunnison v. Greenshields Securities, Inc.,
107 A.D.2d 50, 53 (1st Dep't. 1985) (citing Ginsberg v.
Fairfield-Noble Corp., 81 A.D.2d 318, 321). Rivera has conceded
that he applied for a hardship discharge not solely because of
any promises or statements made by the City or its agents, but
because he was concerned that his wife "was suffering from
depression . . . and she was calling me pretty much stressed
out. . . ." (Rivera Dep. at 89). Notwithstanding the reasons for
his withdrawal from military service, changes of job or residence
do not satisfy the requirements for a claim of promissory
estoppel. Intentional Infliction Of Emotional Distress
Rivera has not stated a claim against the City for intentional
infliction of emotional distress because "[i]t is well-settled
that public policy bars claims sounding in intentional infliction
of emotional distress against a governmental entity." Lauer v.
City of New York, 240 A.D.2d 543, 659 N.Y.S.2d 57, 58 (2d Dep't.
1997), appeal denied, 91 N.Y.2d 807, 669 N.Y.S.2d 260 (1998).
Rivera's claim of intentional infliction of emotional distress
also fails because he did not identify this cause of action on
his Notice of Claim and, therefore, the claim is stricken. See
Urena v. City of New York, 221 A.D.2d 429 (2d Dep't. 1995)
(plaintiff's complaint is limited to causes of action set forth
in notice of claims); Velaire v. City of Schenectady,
235 A.D.2d 647, 648 (3rd Dep't.), appeal denied, 89 N.Y.2d 816
(1997); Sorge v. New York, 56 Misc. 2d 414 (Sup.Ct. N.Y.
Moreover, to state a claim for intentional infliction of
emotional distress against Dr. Norton, Rivera must establish (i)
extreme and outrageous conduct, (ii) with the intent to cause
emotional distress, (iii) a causal connection between the conduct
and the alleged injury, and (iv) that he has suffered severe
emotional distress. New York strictly applies each of these
elements. Howell v. New York Post Co., Inc., 81 N.Y.2d 115,
121, 596 N.Y.S.2d 350, 353 (1993); Ahmed v. Gelfand,
160 F. Supp. 2d 408, 416 (E.D.N.Y. 2001). The same standard applies to claims of
negligent infliction of emotional distress. Wilson v. City of
New York, 294 A.D.2d 290, 295, 743 N.Y.S.2d 30, 34 (1st Dep't.
2002); Dillon v. City of New York, 261 A.D.2d 34, 41,
704 N.Y.S.2d 1, 7 (1st Dep't. 1999).
For conduct to be sufficiently "extreme and outrageous" to give
rise to a claim for intentional infliction of emotional distress,
it must be "so outrageous in character and so extreme in degree,
as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized
society." Murphy v. American Home Products Corp.,
58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236 (1983); see Howell,
81 N.Y.2d at 122, 596 N.Y.S.2d at 353. ("Indeed, of the intentional
infliction of emotional distress claims considered by this Court,
every one has failed because the alleged conduct was not
sufficiently outrageous."); Freihofer v. Hearst Corp.,
65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 741 (1985); Fischer v.
Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 993 (1978).
Moreover, the Second Circuit interprets New York law as requiring
that the conduct which allegedly caused the emotional distress be
intentionally directed at Rivera without any reasonable
justification; a showing of gross recklessness is insufficient
and the conduct usually must involve a continuous course of
harassment, rather than a single instance of abuse. Levin v.
McPhee, 917 F. Supp. 230, 242-43 (S.D.N.Y. 1996) (holding claim that party defamed plaintiff by alleging
complicity in a murder insufficient to make out a claim of
intentional infliction of emotional distress), aff'd,
119 F.3d 189 (2d Cir. 1997).
At most, Rivera has claimed that Dr. Norton seemed to be angry
and agitated during the August 19, 1998 screening interview.
(Rivera Depo. at 64). This alleged conduct on the part of Dr.
Norton clearly falls short of the strict standard required by
courts in claims of intentional or negligent infliction of
Finally, Rivera's claims for intentional infliction of
emotional distress is barred by the one-year statute of
limitations. CPLR 215; Kwarren v. American Airlines,
303 A.D.2d 722, 723 (2d Dep't. 2003) ("cause of action to recover damages
for intentional infliction of emotional distress is barred by the
one-year statute of limitations").
As noted above, Rivera's failure to identify the tortious
interference on his Notice of Claim is also fatal to his tortious
interference claim as against the City. Further, to prove
tortious interference with a contract, four elements must be
shown: (1) the existence of a valid contract between the
plaintiff and a third party, (2) the defendant's knowledge of that contract, (3) the
defendant's intentional procuring of the breach of that contract,
and (4) damages caused by the breach. Kronos, Inc. v. AVX
Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 934 (1993). Rivera
has failed to establish or even allege that he had a contract
with a third party or that the Defendants had knowledge of such a
contract and procured its breach. Further, to the extent that the
"contract" is an alleged contract with a City agency, the NYPD, a
party cannot interfere with its own contract as a matter of law.
Klein v. Jostens, Inc., 1985 U.S. Dist. LEXIS 18115 at *6
Finally, Rivera's claims for tortious interference with
contract, which is an intentional tort, is barred by the one-year
statute of limitations. CPLR 215. Accordingly, this claim is
Prima Facie Tort
Rivera also failed to identify his prima facie tort claim
on his notice of claim, and accordingly, this claim is stricken
as against the City. Moreover, the indisputable lack of harmful
intent with regard to the Defendants' actions bars his claim for
a prima facie tort. See Hannah v. Metro-North Commuter
R.R. Co., 753 F. Supp. 1169, 1177 (S.D.N.Y. 1990) (prima facie
tort requires that intent to harm is sole motivation for the
wrongful act). Rivera has offered no evidence to establish that
Dr. Norton's actions were intentional, willful, malicious and in gross and reckless
disregard of the rights and sensibilities of plaintiff.
Additionally, "[a] claim of prima facie tort does not lie where
the defendant's action has any motive other than a desire to
injure the plaintiff." Global Casting Indus. v. Daley-Hodkin
Corp., 105 Misc. 2d 517, 522 (Sup.Ct. Nassau Co. 1980)
(citations omitted). Further, the New York Court of Appeals has
noted that courts have limited the use of prima facie tort
observing that it "should not become a `catch-all' alternative
for every cause of action which cannot stand on its own legs."
Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735
(1985) (quoting Belsky v. Lowenthal, 62 A.D.2d 319, 323 (1st
Dep't. 1978), aff'd, 47 N.Y.2d 820 (1978). Here, the lack of
evidence requires that this claim be dismissed.
For the reasons set forth above, summary judgment is granted in
favor of Defendants and the complaint of Rivera is dismissed.
It is so ordered.
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