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Deravin v. Kerik

April 2, 2007


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.


Plaintiff brings this action against Defendants pursuant to Title VII, 42 U.S.C. §§ 2000e, et seq., alleging claims of race-based discrimination and retaliation. Defendants have moved for summary judgment. On February 28, 2006, Magistrate Judge Kevin N. Fox issued a Report and Recommendation (the "Report"), recommending that Defendants' motion for summary judgment be denied as it relates to Plaintiff's allegation of race-based discrimination in connection with the January 2000 promotions to Deputy Warden of two individuals, Gregory Smith and Thomas Tsotsoros, and granted in all other respects. Plaintiff has filed objections to the Report ("Pl. Objections"). Defendants have filed a response to Plaintiff's objections ("Def. Resp. Objections"), urging the Court to adopt the Report in its entirety. For the reasons stated below, the Court adopts the Report.

I. Background*fn1

Plaintiff, Eric H. Deravin III ("Plaintiff"), who is African- American, brings this action against defendants Bernard Kerik ("Kerik") and the New York City Department of Corrections (the "DOC") (collectively "Defendants") pursuant to Title VII, 42 U.S.C. §§ 2000e, et seq. He alleges that Defendants' failure to promote him to the position of Deputy Warden on six occasions from January 1998 through April 2000 was the result of unlawful race-based discrimination and retaliation for his successful defense of a sexual harassment complaint filed by Jeanette Pinero ("Pinero"), a DOC correction officer whom Plaintiff occasionally directly supervised and whom he had previously disciplined. Pinero and Kerik dated from approximately the fall of 1995 through late 1996 or early 1997.*fn2

Plaintiff began working as a correction officer with the DOC in 1980. In September 1989, he passed a civil service exam and received a promotion to Captain. Kerik became the First Deputy Commissioner of DOC in January 1995 and DOC Commissioner in January 1998. In August 2000, Kerik resigned and became the Commissioner of the New York City Police Department.

Plaintiff first applied for a promotion to the rank of Assistant Deputy Warden in 1996. On July 30, 1996, Plaintiff's supervisor sent a memorandum to the Director of Personnel advising him that several complaints had been filed with the DOC's Office of Equal Employment Opportunity (the "EEO") against Plaintiff and that Plaintiff was required to appear for a hearing in a case before the New York State Division of Human Rights (the "SDHR"). The supervisor stated that the outcome of the SDHR hearing and the EEO complaints should be taken into account when evaluating Plaintiff's promotion to Assistant Deputy Warden. Captain Peter Meringolo ("Meringolo"), the president of the Correction Captains Association, testified that he discussed Plaintiff with Kerik for the first time at a meeting in 1996. Meringolo testified that, at that meeting, he told Kerik that a pending EEO charge against Plaintiff prevented his promotion but that Plaintiff was cleared and should be promoted. Kerik told him that he would review Plaintiff's file.

Plaintiff claims that Meringolo told him that Kerik had stated to Meringolo that Plaintiff would never receive another promotion because he had defended himself successfully against Pinero's charges. Pl. Ex. A (Pl.'s Aff. ¶¶ 16, 18); Def. Ex. A at 163:11-164:24 (Plaintiff's deposition testimony); Pl. 56.1 Stat. ¶¶ 77-80 and Plaintiff's Counter-Statement of Facts ("Pl. 56.1 Counter- Stat.") ¶¶ 73-74. To support this assertion, Plaintiff provides what he claims is a transcript of the conversation he had with Meringolo, which he allegedly recorded. Pl. Ex. Y.*fn3 Meringolo testified in his deposition, however, that Kerik never said that the Pinero issue would preclude Plaintiff's promotion.*fn4 Def. Ex. J 30:16-19. Plaintiff did not confront Meringolo with the purported audiotape of the conversation Plaintiff claims to have had with Meringolo, or an alleged transcript thereof.

Plaintiff was promoted to the position of Assistant Deputy Warden effective August 30, 1996. Plaintiff disputes Defendants' assertion that Kerik recommended Plaintiff for promotion to the rank of Assistant Deputy Warden, and claims that, instead, it was Ronald Galletta, Acting Chief of Department, who approved the promotion. Def. 56.1 Stat. ¶ 14; Pl. 56.1 Stat. ¶ 14; see also Pl. Objections 8 n.3. The evidence cited by Plaintiff suggests that, at most, Galletta recommended him for promotion. This in no way negates the fact that, in order for the Plaintiff to receive the promotion, Kerik, as First Deputy Commissioner, had to approve it.

Plaintiff was eligible to receive a promotion to Deputy Warden in August 1997. From January 1998 through April 2000, Plaintiff applied six times for a promotion to Deputy Warden. He was promoted in April 2000.

Although Plaintiff had excellent academic and military credentials, his record contained a few blemishes: (1) in November 1997, Kerik received an anonymous letter complaining about Plaintiff's unprofessional and disrespectful behavior while he was a tour commander;*fn5 (2) Plaintiff came to his August 1998 interview with Kerik out of uniform (on October 30, 1998, Plaintiff sent Kerik a letter of apology for being out of uniform); (3) on April 30, 1999, Plaintiff was accused of two incidents of use of force against an inmate; no charges were brought regarding those accusations, see Pl. Ex. W; Def. Ex. V (D005367), and Plaintiff asserts that the accusations were false, see Pl. Ex. A (Pl. Aff. ¶ 13); and (4) in December 1999, a female captain who was under Plaintiff's supervision filed an internal complaint of sexual harassment against Plaintiff; the EEO investigated the complaint and determined that no evidence supported the charges.

On April 4, 2000, Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (the "EEOC"), alleging that he was discriminated against based on national origin -- a claim encompassing race-based discrimination, Deravin, 335 F.3d at 202-03 -- and was retaliated against because of his interactions with Pinero. Pl. Ex. GG; Def. Ex. BB.

On May 2, 2000, Plaintiff was promoted to the position of Deputy Warden. On May 17, 2000, an confidential intra-departmental memorandum was sent to Kerik advising him that Plaintiff had filed an EEOC complaint on April 4, 2000.*fn6 Def. Ex. DD. Plaintiff retired on January 1, 2001.

In August 2000, the EEOC issued a Recommendation for Dismissal of Plaintiff's charge. After receiving a right to sue letter from the EEOC, see Compl. ¶ 13, Plaintiff commenced this action. Defendants move for summary judgment.

II. The Legal Standard

Summary judgment is appropriate only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005). "[S]ubstantive law will identify which facts are material," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a "material fact is 'genuine[]' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003). All ambiguities must be resolved, and all inferences drawn, in favor of the nonmoving party. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001). But "[a] non-moving party cannot avoid summary judgment simply by asserting a 'metaphysical doubt as to the material facts.'" Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Rather, a non-moving party "must 'set forth specific facts showing that there is a genuine issue for trial,'" id. (quoting Fed. R. Civ. P. 56(e)); he or she "'may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.'" Id. (quoting Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (quoting D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998))).

The Report recommends that the Court deny Defendants' Motion for Summary Judgment relating to two promoted individuals*fn7 but grant it in all other respects. Plaintiff has filed objections, and Defendants have responded to those objections. The Court reviews the portions of the Report that have been objected to de novo. See Fed. R. Civ. P. 72(b). The Court adopts portions to which no objections have been filed if they are not contrary to law or clearly erroneous. Fed. R. Civ. P. 72(b) advisory committee's note.

III. Analysis

A. Preliminary Issues

The parties raise three issues that must be addressed before turning to the merits of Plaintiff's claims: (1) whether all claims against Kerik must be dismissed because individual supervisors are not subject to liability under Title VII; (2) whether the Complaint must be dismissed as against the DOC because the DOC lacks the capacity to be sued as a matter of law; and (3) whether the statute of limitations bars ...

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