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Heba v. New York State Division of Parole

December 11, 2007


The opinion of the court was delivered by: Dora L. Irizarry, District Judge


Plaintiff, Darwish Heba ("Plaintiff" or "Heba"), brings this suit against the New York State Division of Parole ("Defendant" or the "Division") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, alleging discrimination by race, religion, and national origin resulting in a hostile work environment. Plaintiff further alleges that Defendant violated Title VII by retaliating against him for initiating an internal discrimination complaint. In addition, Plaintiff sets forth several state and common law claims.

Defendant now moves for summary judgment pursuant to FED. R. CIV. P. 56(c). For the reasons set forth below, Defendant's motion is granted in part and denied in part. Plaintiff's discrimination claim is dismissed, but his retaliation claim survives summary judgment. The state and common law claims are dismissed.

I. Facts

A. Background

The following facts are undisputed or, where disputed, are either so indicated or taken in a light most favorable to non-moving Plaintiff. Plaintiff is a parole officer employed by the Division since April of 1992. (Compl.¶ 12.) He is a naturalized American citizen who was born in Egypt and practices the Muslim faith. (Heba Dep. 13:7-20; 32:3-4.) The Division is an executive department of the government of the State of New York. N.Y. Executive Law § 259(1).

Shortly after Plaintiff began employment with the Division, he was assigned to the Sex Offenders Unit in the Division's "Brooklyn II" office. (Heba Dep. 19:8-20:18; Heba Decl. ¶¶ 2-3.) After five years, he moved to the Special Offenders Unit, also in the Brooklyn II office. (Heba Dep. 20:12-18; Heba Dep. ¶ 3.) During the period that he worked in these two Units, Plaintiff claims that he had good relationships with his supervisors and received two awards and twenty-five commendations. (Def.'s 56.1 ¶ 9; Pl.'56.1 ¶ 9; see Heba Decl. Ex. A.)

In or about April 2001, Plaintiff was reassigned to work under the supervision of Senior Parole Officer John Zwaryczuk ("Zwaryczuk") in the newly formed Targeted Offenders Program ("TOP") Unit in the Division's "Brooklyn IV" office. (Compl. ¶ 14; Heba Dep. 21:7-15.) The TOP Unit was a small unit that supervised parolees who were considered at high risk to commit new crimes. (Zwaryczuk Dep. 24:18-25; Def.'s 56.1 ¶¶ 10; 15.) The Unit worked jointly with the 60th and 67th Precincts of the New York City Police Department (the "NYPD") in high crime areas. (Heba Dep. 117:25-119:7.)

Assignments to the Sex Offenders Unit, the Special Offenders Unit, and the TOP Unit are considered "special assignments" filled by candidates who undergo an interview process outside of the seniority system applicable to "regular assignments." (Oeser Dep. 82:7-83:13.) While assignment to these Units do not involve a salary increase, Plaintiff states that the work involves substantial overtime, a reduced caseload, high-profile parolees, and/or work with other law enforcement agencies. (See Heba Decl. 36:2-19; 67:24-68:6.) Plaintiff thus characterizes special assignments as elite. (Heba Decl. 35:14-22; Pl.'s Mem 7.) According to Defendant, however, the TOP Unit is not elite; not many parole officers were interested in joining the Unit. (See Zwaryczuk Dep. 37:1-21.)

B. Plaintiff's Relationship with Zwaryczuk

Plaintiff and Zwaryczuk met each other in the Brooklyn II office prior to Zwaryczuk's promotion to Senior Parole Officer. (Heba Dep. 39:7-22.) Plaintiff states that, at that time, he and Zwaryczuk "were very close, we used to work together all the time." (Heba Dep. 47:18-19.) However, Plaintiff states that Zwaryczuk had a bad temper and frequently used profanity, and most parole officers preferred not to work with him. (Heba Dep. 49:15-50:14; 63:15-23.) Plaintiff further describes Zwaryczuk as hating Jews generally and making anti-Semitic comments in his presence, as well as derogatory and racist comments against African-Americans and Hispanics. (Heba Dep. 50:4-62:25.)

When the TOP Unit was formed, Zwaryczuk and Bureau Chief Alan Reiter ("Reiter") allegedly asked Plaintiff to join the Unit because Zwaryczuk said he trusted Plaintiff and liked the work he did. (Heba Dep. 66:7-12; 67:10-22.) Reiter claims that he had concerns about the proposed work arrangement in which former co-workers would now be working in a supervisor-subordinate relationship. (Reiter Decl. ¶ 4.) Notwithstanding, Plaintiff joined the TOP Unit.

From the beginning of Plaintiff's assignment in the TOP Unit, Plaintiff and Zwaryczuk had conflicts concerning Plaintiff's timeliness and reliability, as well as overtime issues. (Def.'s 56.1 ¶¶ 16-18; Pl.'s 56.1 ¶¶ 16-18.) According to Plaintiff, Zwaryczuk was reluctant to approve overtime hours for the officers in the TOP Unit. (Heba Dep. 103:17-104:24.) Plaintiff further alleges that Zwaryczuk was generally "verbally abusive" and that there was "ongoing hostility" between them. (Heba Dep. 82:3-5.) The conflict between the two caused Plaintiff, in May or June 2001, to request orally reassignment back to the Special Offenders Unit in the Brooklyn II office. (Heba Dep. 82:6-23.) Apparently, the request went unheeded at the time.

Notwithstanding the differences between Plaintiff and Zwaryczuk, on August 23, 2001, Zwaryczuk recommended Plaintiff, along with another parole officer, for a commendation for their work in the arrest of a parolee and the seizure of drugs and a weapon. (Zwaryczuk Dep. 50:13-52:20; Def.'s 56.1 ¶ 26; Pl.'s 56.1 ¶ 26.) In addition, when Plaintiff applied for a position with the Federal Bureau of Investigation (the "FBI") as an Arabic language interpreter after September 11, 2001, both Zwaryczuk and Reiter provided positive recommendations of Plaintiff to the FBI. (See Heba Decl. ¶ 16; Heba Dep. 179:16-17; Zwaryczuk Aff. Ex. A; Reiter Decl. Ex. B.)

C. July 3, 2001 Overtime Incident

On the evening of July 3, 2001, Plaintiff, pursuant to Zwaryczuk's direction, assisted the NYPD in a homicide investigation involving one of the parolees under Plaintiff's supervision. (Heba Dep. 88:8-24.) The police questioned the parolee at his home and then determined that they needed to question him at their precinct. (Heba Dep. 89:4-13.) The parolee was taken into custody and transported to the police station. (Heba Dep. 89:5-6.) Plaintiff accompanied them. (Heba Dep. 89:5-6.) Plaintiff called Zwaryczuk to inform him that the police had taken the parolee to the precinct to interrogate him, and Zwaryczuk demanded to know why the police were interrogating the parolee at the police station, which he felt was unnecessary. (Heba Dep. 89:16-23.) At around 2:00 a.m., Plaintiff left the precinct. (Heba Dep. 90:6-9.) A few hours later, early that same morning, the police contacted Plaintiff, requesting that Plaintiff come to the police station to release the parolee. (Heba Dep. 90:10-15.) Plaintiff called Zwaryczuk for instruction, and Zwaryczuk directed him not to go to the precinct because he did not believe it had been necessary for the police to interview the parolee the entire night in the absence of an arrest warrant and a "parole hold." (Heba Dep. 90:22-91:9; Zwaryczuk Dep. 54:3-9.) Plaintiff disregarded his supervisor's direction and went to the station to release the parolee. (Heba Dep. 92:2-4.)

In connection with the foregoing events, Plaintiff applied for several hours of overtime. (Heba Dep. 97:15-18, 99:13-101:4.) Zwaryczuk, however, only approved one-and-a-half hours of overtime. (Heba Dep. 102:14-103:4.) Plaintiff requested a meeting with Zwaryczuk and Zwaryczuk's supervisor, Reiter, to discuss the denial. (Heba Dep. 86:7-10.) At the meeting, an argument erupted between Plaintiff and Zwaryczuk, during which Zwaryczuk called Plaintiff "an arrogant person, spoiled brat and prima donna." (Heba Dep. 86:12-87:2.) Plaintiff was offered the opportunity to transfer to the Special Offenders Unit in Queens, but he declined because he wanted an automatic assignment rather than have to go through another application process. (Def.'s 56.1 ¶ 24; Pl.'s 56.1 ¶ 24.) After the meeting, while Plaintiff and Zwaryczuk were exiting Reiter's office, Zwaryczuk allegedly called Plaintiff a "camel jockey." (Heba Dep. 112:4-8.) Reiter did not hear this comment, but it appears that Plaintiff complained to Reiter, who did not take any action. (Heba Dep. 114:15-22; see Pl.'s 56.1 ¶ 23.)

D. Defaced Article and Photographs

At some point during Plaintiff's assignment in the TOP Unit, Plaintiff alleges that a co-worker showed him a document comprised of an article Plaintiff had at his desk entitled "Proud to be an Egyptian" and an unrelated picture of several holy men. (See Schulman Decl. Ex. D; Heba Dep. 141:9-20; Def.'s 56.1 ¶ 25.) The caption to the picture stated "[Unintelligible] holy men were among millions seeking a plunge yesterday at the confluence of three rivers, one [unintelligible].

'How a bath here makes one feel is beyond words, beyond even thought,' said one participant." (See Schulman Decl. Ex. D.) Someone had superimposed a picture of Plaintiff's head over one of the holy men. (See Schulman Decl. Ex. D.) In addition, someone had handwritten the word "Egyptian" in front of the word "holy men" and Plaintiff's name "Darwish" below the words "one participant."*fn1 (See Schulman Decl. Ex. D.)

Zwaryczuk admits that he pasted a picture of Plaintiff's head on the picture, but he claims he did this years before, when Zwaryczuk and Plaintiff were co-workers, and that Plaintiff kept the picture up at his work station for months afterward because he found it humorous. (See Zwaryczuk Dep. 172:23-9.) Plaintiff alleges that this incident occurred just after he moved to the TOP Unit, and, although he put the "Proud to be an Egyptian" article up on his wall, he never put up the composite with the handwritten additions and his superimposed picture. (Heba Dep. 143:25-144:22.)

Plaintiff, in turn, admits that, sometime after September 11, 2001, but before November 30, 2001, he participated in pasting a picture of Zwaryczuk on a photograph of a man riding a camel, under which he or a cohort wrote the caption "John Zwaryczuk, Taliban." (See Heba Dep. 145:15-147:19.)

E. November 30, 2001 Search and Seizure Incident

On November 30, 2001, in the course of executing a search warrant, Plaintiff alleges that Zwaryczuk told a police officer in front of other police officers that he "smell[ed] a camel behind him," referring to Plaintiff. (Compl. ¶ 15b; Heba Dep. 116:14-17; Def.'s 56.1 ¶ 29.) Zwaryczuk and the police officers laughed over the comment. (Heba Dep. 116:10-13.) Plaintiff does not recall the name of the police officer whom Zwaryczuk addressed. (Heba Dep. 115:15-21.)

Later that day, in the course of assisting the police in the execution of either the same or another search warrant, Plaintiff came across light switches and told Zwaryczuk that they were the kind of switches needed for the dome light of the TOP Unit's state vehicle. (Heba Dep. 125:8-11.) Plaintiff and Zwaryczuk both allege ...

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