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 ...