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Malone v. City of New York

September 16, 2010


The opinion of the court was delivered by: Trager, J.


Pro se plaintiff Terrance Malone ("plaintiff" or "Malone") filed this employment discrimination suit against the City of New York ("defendant" or "the City") for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. Plaintiff, a corrections officer with the New York City Department of Corrections ("DOC"), alleges that after he complained about a supervisor's improper and threatening behavior, the supervisor retaliated against plaintiff by falsely accusing plaintiff of pushing him, which resulted in plaintiff being suspended. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff did not submit an opposition to defendant's motion for summary judgment.

For the reasons explained below, defendant's motion is granted.



Plaintiff's Employment with DOC Plaintiff was, at all times relevant to this action, a corrections officer employed by DOC. Deposition of Terrance Malone ("Malone Dep.") at 14, 25. Plaintiff began his employment with DOC on June 1, 2000 and was assigned to the Anna Marie Kross Center ("AMKC"), a correctional facility operated by DOC. Id. at 14, 24-25. As a corrections officer, plaintiff was responsible for the care, custody and control of DOC inmates, and for maintaining the safety and order of the correctional facility.

Id. at 23-24. Corrections officers are expected to adhere to a strict chain of command, which is essential to the safety and operation of the correctional facility. Id. at 83. As part of this paramilitary chain of command, it is common for supervisors, in carrying out their managerial duties, to occasionally yell at corrections officers. Id. at 83-84.


February 4, 2005 Incident On February 4, 2005, plaintiff was assigned to a response team dispatched as a result of an alarm that had sounded within the AMKC facility. Id. at 37-38. A response team is a group of officers charged with lending assistance to another officer that is experiencing a conflict in his or her assigned area. Id. at 38. Before being dispatched to such an area, members of the response team are typically issued specialized equipment including a helmet, vest and baton. Id. at 38.

Following resolution of the alarm for which plaintiff's response team had been dispatched, plaintiff failed to return to the staging area with the rest of the response team. Id. Plaintiff, who was not feeling well, handed his equipment to a fellow officer on the response team and returned to his customary post. Id. at 38-39. Captain Gerald Davis ("Captain Davis"), the supervisor of the response team, apparently noticed plaintiff missing from the formation as the response team was returning to the staging area.*fn1 Id. at 39-40. Captain Davis then telephoned plaintiff at plaintiff's regularly-assigned post. Id. According to plaintiff, Captain Davis sounded upset with plaintiff and demanded an explanation from plaintiff for why he failed to return to the staging area with the response team. Id. at 39-40, 42. Plaintiff explained to Captain Davis that he had been unable to return with the response team because he had been feeling ill. Id. at 40. Captain Davis instructed plaintiff to "never do it again," to which plaintiff responded "not a problem." Id. at 42.

After the first call, Captain Davis telephoned plaintiff two more times in rapid succession. Id. at 42-43. In Captain Davis' second telephone call, he ordered plaintiff to prepare a report of the incident. Id. at 42. Plaintiff agreed to give Captain Davis a report, stating: "If that's what you want, I'd give it to you. You're giving me a lawful order." Id. at 42-43. They both then hung up. Id. Captain Davis then called a third time and warned plaintiff, in profane language, to take him seriously and not to mess around. Id. at 43. Plaintiff, still feeling ill and sensing the escalating tension, hung up on Captain Davis.*fn2

Id. at 42-43.

Following the last call, Captain Davis, accompanied by Captain Juan Calle ("Captain Calle"), arrived at plaintiff's post and began angrily pounding on the door. Id. at 43. Upon hearing Captain Davis' pounding, plaintiff telephoned Captain Davis' supervisor, Assistant Deputy Warden Vann ("ADW Vann"). Id. at 36, 43. Plaintiff called ADW Vann to alert him that a conflict was transpiring between plaintiff and Captain Davis, that Captains Davis and Calle were outside plaintiff's door knocking loudly and that plaintiff was intimidated by the situation. Id. at 43-44. Plaintiff informed ADW Vann about the phone calls he had received from Captain Davis regarding the response team incident. Id. at 44, 46. Plaintiff also told ADW Vann that plaintiff was "questioning Captain Davis' intentions because he [was] not [plaintiff's] area supervisor and he was accompanied by another Captain." Id. at 46.

Ultimately, ADW Vann instructed plaintiff to open the door and put Captain Davis on the phone. Id. at 44, 47. Plaintiff followed ADW Vann's orders, unlocked the door and gave the phone to Captain Davis. Id. at 44. Plaintiff's entire conversation with ADW Vann lasted a minute-and-a-half. Id. at 48.

At his deposition, plaintiff explained that, in stating he was "questioning Captain Davis' intentions," plaintiff meant that he was concerned that Captain Davis had come to plaintiff's post to start "foul play." Id. at 46-47. Plaintiff further explained at his deposition that he expressed concern about Captain Davis' "intentions" because plaintiff believed that Captain Davis, who "[was] not [plaintiff's] area supervisor," was violating DOC protocol by confronting plaintiff at plaintiff's post. Id. at 47-48. According to plaintiff, under proper protocol, Captain Davis should not have left his assigned post to handle the situation with plaintiff in person and instead should have communicated with plaintiff's area supervisor, Captain Ford, regarding any orders or reprimands directed at plaintiff. Id.

Notably, at his deposition, plaintiff conceded that he never told ADW Vann that he was "concerned about [Captain Davis'] intentions with respect to any sort of racial bias against [plaintiff]." Id. at 48. Plaintiff also admitted that, during the conversation, he never said that he believed Captain Davis was a racist. Id.

After plaintiff gave the phone to Captain Davis, Captain Davis briefly spoke to ADW Vann and then proceeded to reprimand plaintiff in a hostile tone for his behavior. Id. at 44-45, 48. Specifically, Captain Davis continued to demand that plaintiff explain why he had relinquished his response team equipment and had failed to return with the rest of the team. Id. Additionally, Captain Davis claimed that plaintiff was out of uniform because his collar insignia was not correct and he was missing his knife and flashlight. Id. at 45-46. Plaintiff responded to each of Captain Davis' questions about his uniform, ...

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