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RIVERA v. CITY OF NEW YORK

October 11, 2005.

TERRENCE C. RIVERA, Plaintiff,
v.
THE CITY OF NEW YORK and KIMBERLY NORTON, Defendants.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

Prior Proceedings

  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

  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 dysfunctional behavior.

  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 application again.

  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 male?
A: Nothing specific.
Q: The same question, tending to show that she was biased against you because you had service in the armed forces?
A: Just by the way any time I mentioned military she would cut me off. Didn't mention it at all during my interview.
(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 ...


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