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Boyar v. City of New York

October 28, 2010


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


Plaintiff Brian Boyar is a Jewish sergeant with the New York City Sheriff's Department and seeks to recover for damages allegedly suffered as a result of what he claims was discrimination based on his religion, as well as retaliation and a hostile work environment. He brings these claims under Title VII of the Civil Rights Act of 1964, 28 U.S.C. §§ 1983, 1981, and 1985,*fn1 New York State Human Rights Law (NYHRL), and New York City Human Rights Law (NYCHRL). Defendants move for summary judgment dismissing the claims. For the reasons that follow, Defendants' motion is GRANTED in its entirety.


Summary judgment is warranted if the moving party shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009); Fed.R.Civ.P. 56(c).

"[M]ere speculation and conjecture is insufficient to preclude the granting of the motion." Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007). "[T]he opposing party must 'set forth specific facts showing that there is a genuine issue for trial." Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 224 (2d Cir. 2006) (quoting Fed.R.Civ.P. 56(e)). Establishing such facts requires going beyond the allegations of the pleadings, as the moment has arrived "to put up or shut up." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (citation omitted). Unsupported allegations in the pleadings thus cannot create a material issue of fact. Id.

I. Unlawful Discrimination

To survive summary judgment brought pursuant to Title VII and more specifically Plaintiff's unlawful discrimination claim, Plaintiff must first make out a prima facie case by showing that "(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to [an] inference of discrimination." Ruiz v. County of Rockland, 609 F.3d 486, 491-492 (2d Cir. 2010). The same standard applies under New York State Human Rights Law. Compare Leibowitz v. Cornell University, 584 F.3d 487, 498 (2d Cir. 2009) and Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004). While CHRL may entail a slightly broader approach, see Kumuga v. N.Y.C. Scho. Const. Auth., 2010 WL 1444513, *14 (N.Y. Sup. Ct. Apr. 2, 2010), it compels the same result here. A prima facie case gives rise to a presumption of unlawful discrimination, and the burden of production then shifts to the defendant to proffer a "legitimate, nondiscriminatory reason" for the challenged employment action. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir.2001). Because plaintiff has failed to make a prima facie case, the burden shifting analysis is unnecessary in this case.

a. Failure to Promote -- Timeliness

Under Title VII, a plaintiff must file an administrative complaint with the Equal Employment Opportunity Commission ("EEOC") within 300 days following the alleged discriminatory act. Petrosino v. Bell Atlantic. 385 F.3d 210, 219 (2d Cir.2004). Plaintiff filed his discrimination claim with the EEOC on May 14, 2009, so any Title VII claim that accrued prior to July 18, 2008 is untimely.

A three year statute of limitations applies to discrimination claims under section 1983, Johnson v. Department of Housing Preservation and Development, 218 Fed.Appx. 5, 6 (2d Cir. 2007), and the same statute of limitations is applicable with respect to NYSHRL and NYCHRL. See N.Y. Exec. Law § 296; N.Y. C.P.L.R. § 214(2) (McKinney 2003); N.Y.C. Admin. Code § 8-502(d); Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007). Because the complaint in this action was filed on January 10, 2010, any such claims accruing prior to January 10, 2007 are barred by the statutory time period.

Plaintiff has failed to show that he has a timely claim based on a failure to promote. As the Defendants point out, Plaintiff's own testimony indicates that the positions to which Plaintiff claims he could have been promoted were filled outside the statutory time period. See Decl. of Jamie Zinaman, Ex. B, 33:20-34:25, 61:8-14 (Undersheriff position filled around August 2005); Id., Ex. I, 18-20 (First Deputy Sheriff position filled in 2006); Id., Ex. B, 44:1-19 (Chief of Staff position had been filled "for a while."); Id., Ex. B, 33:1-17, 44:20-45:9 (Chief of Operations position filled since 2002); Id.,Ex. B, 47:2-8 (Director position filled since at the latest 2006). As a consequence any alleged failure to promote claim must fail.

b. Failure to Promote -- Prima Facie Case

Even were Plaintiff's claims timely, they would still fail on the merits because Plaintiff never applied for a promotion. To make out a prima facie case on a failure to promote claim Plaintiff must show he was a member of a protected class, that he applied for and was qualified for a job, that he was rejected, and that the rejection occurred under circumstances giving rise to an inference of discrimination. See Lomotey v. Conn.-DOT, 355 Fed. Appx. 478, 480 (2d Cir. 2009).

Plaintiff has shown no facts from which a reasonable juror could find that he actually applied for a promotion. Although he took and failed a civil service test for promotion to Lieutenant, Def.'s 56.1 Stmnt. ¶ 12, he claims that promotion to the positions noted above was discretionary, and did not require a passing test score. While he expressed a general desire for promotion to such a position, see Decl. of Linda M. Cronin, Ex. B, 194, a plaintiff "cannot meet the application requirement for stating a failure to promote claim merely with evidence that he generally requested promotion consideration." See Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998); Billups v. Dent Wizard Intern. Corp., No. 05 cv 9356, 2010 WL 2541361, *8 (S.D.N.Y. June 14, 2010). Plaintiff has provided no facts to show that he actually applied for and was rejected from any of the positions. Quite the contrary, he admitted at deposition that no such applications were made. See Decl. of Jamie Zinaman, Ex. B, 59:25-60:1 (did not apply for Undersheriff); Id., Ex. B38:10-17, 40:4-7, 43:6-21 (did not apply for First Deputy Sheriff); Id., Ex. B, 44:1-9 (did not believe there was even an ...

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