The opinion of the court was delivered by: Brieant, J.
Before the Court in this action alleging employment retaliation and discrimination on the basis of ethnicity and national origin, is a motion for summary judgment based on qualified immunity. The motion was filed on August 8, 2007 (Doc. 9). Opposition papers were filed on November 19, 2007 (Doc. 16). Reply papers were filed on December 3, 2007 (Doc. 18). The motion was heard and fully submitted for decision on December 7, 2007.
The following facts are presumed true for the purposes of this motion only. Araz Alali (the "Plaintiff") was, at all relevant times, employed as a Police Officer by the City of New Rochelle (the "City"). At all relevant times the City employed Robert Gazzola, as Police Captain and Patrick J. Carroll as Police Commissioner (collectively the "Defendants"). This is one of two related cases filed by Plaintiff against these Defendants, alleging violations of Plaintiff's rights as guaranteed by 42 U.S.C. § 2000e et seq (Title VII), 42 U.S.C. §§ 1981 and 1983, and N.Y. Exec Law § 296.
Plaintiff is of Iraqi national origin and claims that he is the only Police Officer of Middle Eastern descent who has ever been employed by the City of New Rochelle. Plaintiff alleges that he has been continually subjected to discriminatory and disparate treatment on account of his national origin, ethnicity and color. Plaintiff claims that the Individual Defendants acted with knowledge of and encouraged such treatment. Specifically, Plaintiff contends that he was repeatedly addressed using derogatory names including: "terrorist", "Ali Baba", "Camel Jockey", and "Ali", and that Defendants were aware of and encouraged such name calling. Additionally, Plaintiff contends that he was repeatedly denied any meaningful specialized training, which Plaintiff alleges was provided to other junior officers; forced to attend a seminar called "Tools for Tolerance Post 911" for the purpose of humiliating Plaintiff; purposely given false "below standard" job performance evaluations calculated to bar Plaintiff from working overtime; assigned to police posts in order to degrade Plaintiff; and subjected to "investigations" based on false accusations of wrongdoings. Plaintiff further alleges that Defendants agreed to retaliate against Plaintiff by filing frivolous disciplinary charges, after Defendants learned that Plaintiff filed an EEOC charge.
Plaintiff asserts that Defendants Carroll and Gazzolla had knowledge that Plaintiff was being called derogatory names and encouraged such conduct solely by reason of the Defendants' status, as Police Commission and Captain, respectfully. Additionally, Plaintiff maintains that Defendants' either engaged in or were aware of and encouraged the additional conduct alleged.
Plaintiff joined the New Rochelle Police Department on February 10, 2002. Between that date and July 28, 2003, six civilian complaints were filed against him, most alleging that Plaintiff was rude and discourteous during traffic stops. As a result, Plaintiff was sent for training in Verbal Judo, a tactical communications program designed to de-escalate tensions during police-citizen encounters. During this period, Plaintiff also received command discipline letters; one on October 29, 2002 for leaving his post and another on December 23, 2002 for failing to respond to a supervisor over the police radio.
On July 28, 2003, Plaintiff was injured and did not return to active duty until October 1, 2004. From October 1, 2004 until the end of that year, Plaintiff received two civilian complaints for being rude and discourteous, and his job performance evaluation made note of these complaints.
For the time period spanning January 1, 2005 through December 31, 2005, Plaintiff received five civilian complaints and two command discipline letters, one for being rude to a motorist and the other for illegally parking his car in front of a donut shop. During this year, a supervisor was assigned to ride with Plaintiff to observe his performance and provide training. Defendants maintain that Defendant Gazzola told Plaintiff that his performance may lead to a "below standard" job evaluation. Plaintiff received a "below standard" job evaluation for the 2005 year, and the evaluation stated that Plaintiff received more civilian complaints during the evaluation period than any other officer.
From January 1, 2006 through May 31, 2006, Plaintiff received four civilian complaints and a "below standard" evaluation for the same six-month period. During June 1, 2006 through December 31, 2006, Plaintiff received three additional civilian complaints and a command discipline for an incident in which, while responding to a call for officer assistance, Plaintiff, without slowing down, drove his police vehicle through a red light and onto a busy sidewalk. Plaintiff did so after the call had been rescinded and those officers not already present were ordered to disregard the call. Shortly thereafter, the New Rochelle Police Department sought the assistance of outside counsel to prepare formal disciplinary charges against Plaintiff. According to the exhibits presented to the Court, the charges were signed on February 15, 2007. Plaintiff filed this complaint in the instant action on February 21, 2007.
Summary Judgment Standard
Fed. R. Civ. P. 56(c) provides that summary judgment shall be rendered if "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 a judgment as a matter of law." In evaluating the record to determine whether there is a genuine issue as to any material fact, "the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)."The party against whom summary judgment is sought, however, 'must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see Fed. R. Civ. Pro. § 56(e) ("adverse party may not rest upon the mere allegations or denials of his pleading, but his response...must set forth specific facts showing that there is a genuine issue for trial").
In opposition to Defendants' motion for summary judgment, Plaintiff submits only an attorney affirmation stating that Plaintiff believes the motion is premature because, although Plaintiff was deposed, reasonable discovery has not been conducted, including depositions of the Individual Defendants. This argument is of no avail, since the Court's resolution of the motion assumes the truthfulness of the Plaintiff's deposition testimony, except to the extent, if any, of facial absurdity. See Poggioli v. Murphy, 06 Civ. 12893 (CLB) (July 26, 2007).
Commission Carroll and Captain Gazzola Absolute Immunity
The doctrine of absolute immunity is meant to "protect officials from personal liability for the performance of certain discretionary acts." Spear v. Town of West Hartford, 954 F.2d 63, 66 (2d Cir. 1992). Absolute immunity protects officials from personal liability for the initiation of administrative proceedings. However, a different situation arises when the official ...