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November 29, 2010


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



Plaintiffs, detectives with the New York City Police Department ("NYPD"), bring this suit against the City of New York, the NYPD, and individual supervisors within the NYPD. Defendants move for summary judgment dismissing Plaintiffs' claims of employment discrimination based upon race and national origin, retaliation, and hostile work environment. For the following reasons, the motions are granted in part and denied in part.


Plaintiffs Roland Gutierrez, Frankie Rosado, Rene Canela, and David Flores are Hispanic-American detectives who work in the 52nd Precinct Detective Squad of the NYPD ("Precinct" or "52nd Precinct"). Defendants include the City of New York, the NYPD, and four individual Defendants, Commissioner of the NYPD Raymond Kelly, Deputy Chief Stephen Kennedy, Lieutenant Kevin Moroney, and Deputy Inspector Raymond Rooney. Kennedy, Moroney, and Rooney are supervisors within the 52nd Precinct.

Plaintiffs identify various actions by Defendants that they allege were discriminatory or taken in retaliation for their complaints to the NYPD Office of Equal Employment Opportunity ("OEEO") and the U.S. Equal Employment Opportunity Commission ("EEOC"). Specifically, they allege Defendants denied them investigative overtime, imposed excessive disciplinary actions, failed to promote them, gave them unfavorable work assignments, reassigned their arrests, denied them time off, denied their transfer requests, and denied them the opportunity to "sleep over" at the station and earn overtime. They allege white officers were more favorably treated and granted many of these benefits. In addition, Plaintiffs allege Defendant Moroney deflated their evaluations, hung a racially charged sign in his office, transferred out minority officers and transferred in white officers, placed shamrocks on Plaintiffs' computers, made harassing statements, and required a more strict dress code of Plaintiffs than of white detectives.

There is some dispute as to when the Plaintiffs first complained of discriminatory conduct. Viewing the facts in the light most favorable to the Plaintiffs for the purposes of this motion, Plaintiff Gutierrez's first protected action took place on February 28, 2007 when Defendant Kennedy contacted the OEEO on behalf of Gutierrez regarding discrimination by Moroney.*fn1 See Cronin Decl. Ex. I. Rosado filed an initial complaint with the OEEO on August 1, 2007, and Canela and Flores filed initial complaints on August 8, 2007. Barnett Decl. Ex. H. Plaintiffs also filed complaints with the EEOC. See Cronin Decl. Ex. G (showing Rosado, Canela, and Gutierrez sent complaints to EEOC August 8, 2007, and Flores sent his December 27, 2007); Barnett Decl. Exs. QQQ, TTT, and XXX.

II.Standard of Review

Summary judgment is warranted "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]he burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). An issue is genuine if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case." Gallo, 22 F.3d at 1223--24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50.All ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Id. at 249.

The Court of Appeals for the Second Circuit has noted that "an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001); Gallo, 22 F.3d at 1224. Nonetheless, "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997).


a.NYPD Is Not a Suable Entity

Chapter 17, § 396 of the New York City Charter provides that "all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not that of any agency except where otherwise provided by law." N.Y. City Charter, Ch. 17 § 396. As an agency of the City, the NYPD is a non-suable entity, and all claims against it must be dismissed. Jenkins v. City of New York,478 F.3d 76, 93 n.19 (2d Cir. 2007) (finding "district court correctly noted that the NYPD is a non-suable agency of the City"); Emerson v. City of New York, No. 09 Civ. 1656 (VM), 2010 WL 2910661, at *8 (S.D.N.Y. 2009) (holding NYPD Firearms Division and NYPD 46th Precinct are agencies and thus not suable entities). Thus, the City of New York is the proper defendant and the claims against the NYPD are dismissed.

b.Failure to Exhaust Administrative Remedies

Defendants assert that Plaintiffs' Title VII failure to promote claims should be dismissed because they were not alleged in Plaintiffs' EEOC charges. The exhaustion of administrative remedies through timely filing with the EEOC is "a precondition to bringing a Title VII action." Francis v. City of New York, 235 F.3d 763, 769 (2d Cir. 2000). It "is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). The purpose of this requirement, "which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Miller v. Int'l Tel. & Tel., 755 F.2d 20, 26 (2d Cir.), cert. denied, 474 U.S. 851 (1985) (describing EEOC charge requirement in the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.); Stewart v. U.S. Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985) ("[T]he purpose of the [Title VII] exhaustion requirement . . . is to give the administrative agency the opportunity to investigate, mediate, and take remedial action . . . .").

However, claims not raised in an EEOC complaint may be brought in federal court if they are "reasonably related" to the claim filed with the agency. Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curium) (citing Butts v. City of N.Y. Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1401--1402 (2d Cir. 1993)). A claim may be considered reasonably related where "the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made." Williams v. N.Y. City Hous. Auth., 458 F.3d at 70 (citing three bases for a claim to be "reasonably related"). "The central question is whether the complaint filed with the EEOC gave that agency adequate notice to investigate discrimination on both bases." Id. at 70 (internal quotation marks and citation omitted); Holtz, 258 F.3d at 83 (applying "reasonably related" test where both incidents occurred prior to EEOC filing).

Here, Plaintiffs' EEOC claims addressed performance evaluations, denial of overtime, job assignments, transfers, and alleged harassing and discriminatory statements by supervisors. The failure to promote claims are based on the same allegations of race and national origin discrimination that underlie the EEOC claims. See Holtz, 258 F.3d at 83--84 (stating district court properly found failure to promote and transfer allegations related to failure to train because it was "reasonable to suspect that the EEOC, in investigating [plaintiff's] complaint of failure to train because of age, would have assessed [defendant's] promotion and transfer policies."). These charges are not a "wholly different type of discrimination." Peterson v. Ins. Co. of N.A., 884 F. Supp. 107, 109--10 (S.D.N.Y. 1995) (collecting cases). The motion to dismiss the Title VII failure to promote claims based on failure to raise them in the EEOC complaint is denied.

c.Timeliness of Title VII Claims

In New York, Title VII claims must be filed with the EEOC within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e)(1); see also Butts, 990 F.2d at 1400. "When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred." Butts, 990 F.2d at 1401. Defendants assert that many of the Plaintiffs' claims occurred before the 300 day window and, as such, those claims must be dismissed. Plaintiffs respond that the claims of disparate treatment, hostile work environment, and retaliation together constitute a continuing violation. "Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993).*fn2 However, Title VII "precludes recovery for discrete acts of discrimination that occur outside the statutory time period," even when they are related to acts alleged in timely filed charges. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002). "Each discrete discriminatory act starts a new clock for filing charges alleging that act." Id. at 113. "The rationale behind the 'discrete act' rule is that when a plaintiff is harmed by a discrete act, he should be aware of it; '[t]o permit him to wait and toll the running of the statute simply by asserting that a series of separate wrongs were committed . . . would be to enable him to defeat the purpose of the time-bar, which is to preclude the resuscitation of stale claims.'" Stephens v. Hofstra Univ. School of Law, No. 01 Civ. 5388 (DRH) (MLO), 2005 WL 1505601, at *4 (E.D.N.Y. Jun. 24, 2005) (quoting Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980)).

Plaintiffs base their claims on failure to promote, retaliation, denial of investigative overtime, and various complaints regarding less favorable job assignments, such as requirements that they "catch cases" or attend additional training. United States Supreme Court precedent, and that of this Circuit, makes clear that failure to promote, denial of transfer, and job reassignments are discrete acts that cannot form the basis for a continuing violation claim. Morgan, 536 U.S. at 114 ("Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify."); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997) (finding job transfer and discontinuance of a particular job assignment are not acts of a continuing nature). Thus, "[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Morgan, 536 U.S. at 114.

However, acts that constitute a hostile work environment are of a different nature. Because a hostile work environment claim "is composed of a series of separate acts that collectively constitute one 'unlawful employment practice,' it does not matter that some of the component acts fall outside the statutory time period." Morgan, 536 U.S. at 103. "Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered for the purposes of determining liability." Id. Defendants do not contest that at least some of the actions Plaintiffs allege created a hostile work environment occurred during the statutory period.

In sum, Plaintiffs' Title VII claims for actions occurring prior to the 300 days before their individual filings with the EEOC are dismissed except to the extent Plaintiffs' allegations support a claim of hostile work environment.

d.Timeliness of § 1981, § 1983, State, and City Claims

Claims under the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"), New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 and 8-502 et seq. ("NYCHRL"), and § 1983 must be filed in court within three years of the alleged discriminatory act or are considered time-barred. See Lightfoot, 110 F.3d at 906 (NYSHRL); Bumpus v. N.Y. City Transit Auth., 883 N.Y.S.2d 99, 109 n.3 (N.Y. App. Div. 2009) (NYCHRL); Owens v. Okure, 488 U.S. 235, 250 (1988) (ยง 1983). Section 1981 claims have a four year statute of limitations. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382--83 (2004). As under Title VII, hostile work environment claims under these statutes may be based on events outside the statute of limitations period to the extent they constitute "part of the same actionable hostile work environment practice," and at least one act contributing to the claim occurs within the filing period. Morgan, 536 U.S. at 103. This action was ...

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