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Almasmary v. City of New York

March 31, 2009

ABDO ALMASMARY, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM AND ORDER

Plaintiff, Abdo Almasmary, a former New York City police officer of Middle Eastern descent, brings this action pursuant to Title VII of the Civil Rights Act of 1964 (hereinafter, "Title VII"), 42 U.S.C. § 1983, New York State Executive Law § 296 and New York City Administrative Code § 8-502, alleging that defendants -- the City of New York and New York City Police Commissioner, Raymond W. Kelly -- discriminated against him on the basis of his race, color and national origin and subjected him to a hostile work environment. Defendants now move to dismiss some of plaintiff's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing (1) that plaintiff's Title VII claims are time-barred to the extent that they allege acts which occurred earlier than December 9, 2005; (2) that plaintiff's claims pursuant to 42 U.S.C. § 1983 should be dismissed for failure to allege personal involvement on the part of Commissioner Kelly, the only defendant named in those claims; and (3) that plaintiff's claims pursuant to State and City law are time-barred. For the reasons set forth below, defendants' motions are granted in part and denied in part.

Background

This "Background" section is drawn entirely from the allegations in the Amended Complaint, the truth of which is assumed for purposes of this motion to dismiss.

Plaintiff is of Middle Eastern decent and immigrated to the United States at the age of four. Amended Complaint at ¶13. In 2000, he became a police officer with the New York Police Department ("NYPD") Id., at ¶14. Plaintiff served in that capacity for approximately six years, during which time he received above-average ratings on his performance evaluations and numerous merit citations. Id., at ¶16.

After September 11, 2001, plaintiff was recruited by NYPD's Intelligence Division, which he assisted in undercover investigations into potential terrorist activity within the Middle Eastern communities of New York City. Id., at ¶21. The plaintiff contends that in recognition of his successful undercover work he was "promised" a position within the Intelligence Division.

Id., at ¶26. The Amended Complaint does not specify precisely when this promise was made, but alleges that plaintiff was sent to the Berlitz Language School to learn Farsi for the position in early 2003. Id., at ¶32. Although plaintiff took an examination and interviewed with the Intelligence Division four separate times, he was never offered a position. Id., at ¶¶27, 32. Plaintiff alleges, on information and belief, that less qualified Caucasian applicants were transferred into the Intelligence Division, id., at ¶33, but does not specify the dates on which these applicants were transferred.

On April 2, 2004, a police sergeant accused plaintiff of filling his personal car with NYPD gasoline. Id., at ¶36. Plaintiff told the sergeant that he had the "appropriate authorizations," id., but now admits that this was incorrect and alleges that he was misled by unspecified sources in the Intelligence Division, who told him that he was authorized to use his own car for NYPD business. Id., at ¶34. Plaintiff denies that he was ever told that he had to file paperwork and obtain formal approval. Id., at ¶35.

On January 11, 2005, plaintiff was served with Charges and Specifications that accused him of stealing gas on two occasions: April 2, 2004, and April 4, 2004. Id., at ¶38.*fn1 On or about January 20, 2005, plaintiff reached a "Negotiated Settlement" with the Department Advocate's office, which recommended that plaintiff be penalized for the theft by forfeiting twenty-six vacation days and being placed on "Dismissal Probation" for one year. Id., at ¶39. However, the Assistant Commissioner of the Department Advocate's Office refused to approve the settlement, believing it to be too lenient. Id., at ¶41. Over the next few months, a new settlement agreement was negotiated, under which plaintiff was suspended for one month without pay and benefits and was placed on Dismissal Probation for one year. Id., at ¶42. This second, more severe, Negotiated Settlement was approved by defendant Kelly on April 4, 2005. Id.

On September 7, 2005, plaintiff was interrogated by two detectives from the NYPD's Internal Affairs Bureau ("IAB"). Id., at ¶43. These detectives questioned him not only about his authorization to use his personal vehicle for police business, but also about a "PA-15" Pre-Employment Application he had completed as part of the NYPD hiring process. Id., at ¶44. First, the detectives accused plaintiff of failing to disclose on the PA-15 that he held an "off the book" job in an ice cream parlor between 1986 and 1989, when plaintiff was in high school. Id., at ¶45. According to plaintiff, the owner of the ice cream parlor was from Yemen and was suspected of involvement in terrorist activities between the years 1997-2004. Id., at ¶46. The detectives asked plaintiff whether the owner was his uncle, id., at ¶47, and asked plaintiff, "Are you a terrorist?" and "Do you want to do anything to this country?" Id., at 51. The detectives also questioned plaintiff about his past employment at Citibank, accusing him of intentionally failing to disclose that he was dismissed from his job at that bank. Id., at ¶50.

On October 4, 2005, based on this interview, an IAB Captain recommended that the NYPD seek to decertify plaintiff. Id., at ¶52. That recommendation was approved by an Inspector in the Applicant Processing Division and the Chief of the Personnel Bureau on February 15, 2006, and March 24, 2006, respectively. Id., at ¶53-54. In mid-April 2006, plaintiff was notified that he was being placed on Level II Disciplinary Monitoring. Id., at ¶55. His firearm and shield were confiscated, he was placed on "modified duty," and he was assigned to work in Brooklyn Central Booking. Id., at ¶¶56-57, 62.

On April 26, 2006, Commissioner Kelly approved the commencement of the decertification proceedings. Id., at ¶58. On May 2, 2006, the Department of Citywide Administrative Services ("DCAS") requested that plaintiff respond to allegations that he had omitted pertinent facts from his employment application. Id., at ¶63-64.*fn2 In response to the DCAS requests, plaintiff claimed that he had disclosed the ice cream parlor job during the "hiring interview." Id., at ¶65. However, plaintiff tacitly admitted failing to disclose that he had been dismissed from Citibank "due to missing funds from the ATM room," stating that he misunderstood a question in the NYPD application and believed that termination was not disciplinary action. Id., at ¶66.

Plaintiff was terminated from the NYPD on May 25, 2006, after being "marked not qualified by the Deputy Commissioner, Department of Citywide Administrative Services, because he falsified official New York City employment documents and omitted pertinent fact(s)." Id., at ¶67. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 5, 2006. Id., at ¶11. He ...


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