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Maxiimus Payne v. New York City Police Department

March 28, 2012

MAXIIMUS PAYNE, PLAINTIFF,
v.
NEW YORK CITY POLICE DEPARTMENT, CITY OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Plaintiff Maxiimus Payne ("plaintiff") brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("NYSHRL"), the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8--107 et seq. ("NYCHRL"), and New York state common law, asserting claims for employment discrimination, hostile work environment, and intentional infliction of emotional distress against defendants the New York Police Department ("NYPD") and the City of New York (together, "defendants"). Plaintiff Maxiimus Payne, who self-identifies as an African-American man and a member of the Rastafarian religion, worked as a probationary police officer for the NYPD from July 11, 2005 until his termination on August 27, 2007. (Def. 56.1 Stmt. ¶¶ 1, 124; Pl. 56.1 Stmt. ¶¶ 2, 77.) The NYPD attributes his termination to his performance as demonstrated by performance evaluations and records of disciplinary action. (Def. Mem. of Law.) Plaintiff alleges that actions taken against him were motivated by discriminatory intent based on his race, religion, and ethnicity. (Compl. ¶¶ 14, 16, 22; Pl. Mem. of Law; Pl. 56.1 Stmt. ¶ 3.) On February 7, 2011, defendants moved for summary judgment on all claims. For the reasons set forth below, defendants' motion is GRANTED in part and DENIED in part.

I.

BACKGROUND*fn1

A.Plaintiff's Employment History

1.The Police Academy

a.Employment

Plaintiff was appointed a probationary police officer of the New York Police Department ("NYPD") and started at the Police Academy ("Academy") on July 11, 2005. (Def. 56.1 Stmt. ¶¶ 1, 5; Pl. 56.1 Stmt. ¶¶ 2, 6.) Around that time, plaintiff converted from Christianity to the Rastafarian religion and started wearing his hair in dreadlocks as part of his religion. (Def. 56.1 Stmt. ¶¶ 4, 12; Pl. 56.1 Stmt. ¶ 4; Deposition of Maxiimus Payne ("Pl. Dep."), at 31.) Plaintiff's supervisor at the Academy, Detective Tara Comiskey, appointed plaintiff to Company Sergeant due to plaintiff's military background, a position responsible for helping instructors keep the platoon in order. (Def. 56.1 Stmt. ¶ 6--7; Pl. 56.1 Stmt. ¶¶ 7--9.) Plaintiff was Company Sergeant for a few weeks before being removed from the position after questioning a gym instructor's order that the recruits run long distances in extreme heat. (Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Stmt. ¶ 11; Pl. Dep. at 35--39.)

By September 6, 2005, plaintiff had received three Deportment Cards, which are notations for minor rules violations. (Pl. 56.1 Stmt. ¶¶ 16, 30; Pl. 56.1 Stmt. ¶ 17, 19.) On that same date, plaintiff's squad commander, Lieutenant Herman Cruz, wrote a memorandum indicating plaintiff was anticipated to require entry-level monitoring, despite that he "hasn't accumulated a large amount of deportment cards," because there were complaints from other recruits that he was a "bully." (Def. 56.1 Stmt. ¶¶ 16--18; Pl. 56.1 Stmt. ¶ 23; Sept. 6, 2005 Cruz Memorandum, Switzer Dec'l Ex. D.) Despite that plaintiff "did well in [his] tests," he was referred for a psychological evaluation based on the "bullying" complaints from his peers. (Sept. 14, 2005 Referral for Psychological Evaluation, Switzer Dec'l Ex. H.) The conclusions of the evaluation included that plaintiff's "[d]isciplinary issues are being handled as such, since they are not indicative of psychopathology" and "[a]s for the perception of him being intimidating and 'a bully,' there are no reports of his having any physical disputes or even threatening physical harm to anyone." (Sept. 19, 2005 Closing Summary of Psychological Evaluation; Switzer Dec'l Ex. I.)

While at the Academy, plaintiff accumulated a total of twelve Deportment Cards.*fn2 (Def. 56.1 Stmt. ¶ 36; May 2, 2006 Memorandum of Lt. Loos, Switzer Dec'l Ex. E.) Officers can be issued Command Disciplines ("CDs") for more significant misconduct. (Pl. 56.1 Stmt. ¶ 19.) While at the Academy, plaintiff received three CDs: one for leaving a classroom without permission and lying to an instructor when questioned, and two based on his accumulation of Deportment Cards. (Def. 56.1 Stmt. ¶¶ 19--20, 28--34; Reports of Violation of Rules, Switzer Dec'l Exs. G, J, K.) Plaintiff claims he did not formally challenge the CDs because he believed doing so may result in dismissal. (Pl. 56.1 Stmt. ¶ 20; Pl. Dep. at 50, 59.)

On a performance evaluation dated November 16, 2005, which contains a number of checkboxes and space for comments, Detective Comiskey rated plaintiff as "Competent" overall and in all categories, except "Self-Discipline," which she rated "Low." (Def. 56.1 Stmt. ¶ 37-- 43; Nov. 16, 2005 Comiskey/Mortis Evaluation, Switzer Dec'l Ex. L.) Detective Comiskey wrote that plaintiff "met the requirements," "carried [him]self in a professional manner," and "met the physical standards." Comiskey's overall comments were that "[plaintiff] had difficulty conforming to paramilitary standards in the beginning of the [A]cademy. [Plaintiff] since has changed his demeanor and conformed to the [Academy's] standards." (Id.) The reviewer, Sergeant Pamela Mortis, also noted that plaintiff had "made positive changes in his behavior" and "established a better rapport with his peers." The evaluation also contained a recommendation that his performance be monitored. (Id.)

On November 17, 2005, an evaluation Committee discussed plaintiff's performance and also recommended monitoring based on plaintiff's "disciplinary record" and the recommendation of Detective Comiskey and plaintiff's "Team Leader." (Def. 56.1 Stmt. ¶ 44; May 2, 2006 Memorandum of Lt. Loos ¶ 5; Pl. 56.1 Stmt. ¶ 35.) The memorandum of the Committee discussed complaints from other recruits, plaintiff's Deportment Cards and CDs, and the November 16 evaluation. (May 2, 2006 Memorandum of Lt. Loos.) The recommendation was endorsed by the Commanding Officer of the Academy. (Def. 56.1 Stmt. ¶ 44; Pl. 56.1 Stmt. ¶ 35; First Endorsement, Switzer Dec'l Ex. E.) As part of the monitoring, performance evaluations were scheduled for the 10-month, 16-month, and 22-month anniversaries of his employment.

(Pl. 56.1 Stmt. ¶ 36; May 25, 2006 Memorandum of Deputy Inspector Donna Jones to the 70th Precinct, Burden Dec'l Ex. K.)

b.Alleged Discriminatory Treatment

Plaintiff testified that at the Academy, while he was Company Sergeant, Detective Comiskey approached him and suggested he cut his hair. (Def. 56.1 Stmt. ¶ 11; Pl. 56.1 Stmt. ¶ 11.) Plaintiff testified that he replied that his hairstyle was a ritual of his religion. (Pl. Dep. at 41.) Plaintiff testified that another instructor also said that plaintiff was "going to have a lot of problems" and that he should cut his hair. (Def. 56.1 Stmt. ¶¶ 13--15; Pl. Dep. at 61--64.) He also testified that other NYPD employees at the Academy also commented on plaintiff's hairstyle and suggested that he cut his hair. (Def. 56.1 Stmt. ¶¶ 13--15; Pl. Dep. at 61--64.)

2.The 70th Precinct

a.Employment

In or around January 2006, plaintiff graduated from the Academy and was assigned to the 70th Precinct in Brooklyn. (Def. 56.1 Stmt. ¶ 46; Pl. 56.1 Stmt. ¶ 41.) There, his first-line supervisors included Sergeant Edwin Boone. (Def. 56.1 Stmt. ¶¶ 47--48; Pl. Dep. at 76--78.) Plaintiff received three CDs while at the 70th Precinct, two for failure to appear in traffic court and a third for a parking violation. (Def. 56.1 Stmt. ¶¶ 56, 57, 61, 64; 2006 Command Discipline Log, Switzer Dec'l Ex. M.) Plaintiff testified that he verbally contested the CDs, but he did not formally appeal any of them. (Def. 56.1 Stmt. ¶¶ 58, 62, 64; P. Dec'l Ex. A, at 98--109.) Plaintiff testified that he did not formally challenge any of them because he believed it could result in his dismissal. (Pl. 56.1 Stmt. ¶ 20; Pl. Dep. at 59.)

Plaintiff's 10-month performance evaluation and subsequent evaluations used a five-point scale, with three meaning competent, lower than three meaning below standards, and above three meaning above standards. (Def. 56.1 Stmt. ¶ 66; Pl. 56.1 Stmt. ¶¶ 42--44.) The evaluation forms contain a page with a number of boxes for ratings on particular aspects of performance and space on the second page for typed comments. (See, e.g., 10-month Leonard/Mascol Evaluation, Switzer Dec'l Ex. O.) Each performance evaluation lists a Rater and a Reviewer. The Rater, who is the direct supervisor of the officer being evaluated, fills out the performance evaluation after conferring with anyone else who directly supervised the officer during the rating period (Deposition of Inspector Donna Jones, Switzer Dec'l Ex. Y at 150--53.) The evidence does not reflect how the Reviewer is chosen, or what responsibilities a Reviewer has. The Rater for plaintiff's 10-month evaluation was Sergeant Colleen Leonard and the Reviewer was Lieutenant Mascol. (Def. 56.1 Stmt. ¶ 67; 10-month Leonard/Mascol Evaluation.) Plaintiff's overall rating was a three. (Def. 56.1 Stmt. ¶ 66; Pl. 56.1 Stmt. ¶ 42.) The written comments describe plaintiff as "always produc[ing] good steady activity in every area of policing . . . meet[ing] all required performance standards and in some areas surpass[ing expectations;] [and] present[ing] no disciplinary problems." (10-month Leonard/Mascol Evaluation, Switzer Dec'l Ex. O.) "He is courteous and compliant to supervisors and if he continues his progress he should make a fine police officer and be an asset to the police department." (Id.)

b.Alleged Discriminatory Treatment

Plaintiff describes comments made by Integrity Control Officer Lieutenant Cirrito, who issued two of the three CDs plaintiff received while at the 70th Precinct. (Def. 56.1 Stmt. ¶¶ 51-- 62; Pl. Dep. at 87--100, 175.) Plaintiff testified that on one occasion, Lieutenant Cirrito said, referring to plaintiff, "they let anybody graduate the [A]cademy now." (Def. 56.1 Stmt. ¶ 51; Pl. Dep. at 87.) Plaintiff testified that he understood this to be a reference to his dreadlocks. (Def. 56.1 Stmt. ¶ 52; Pl. Dep. at 88.) On another occasion, Lieutenant Cirrito asked how plaintiff could afford the car he was driving, asking "you're not doing anything illegal, are you?" (Def. 56.1 Stmt. ¶ 54; Pl. Dep. at 175.) Plaintiff testified that when they were discussing one of the CDs, Cirrito suggested that plaintiff might have missed a court date because his hair was too heavy. (Def. 56.1 Stmt. ¶ 60; Pl. Dep. at 89--90.)

In addition, plaintiff testified that some officers at the 70th Precinct, including Lieutenant Cirrito, called plaintiff "Stumpy" because of the appearance of his hair, though plaintiff's direct supervisors did not call him "Stumpy." (Def. 56.1 Stmt. ¶ 50; Pl. Dep. at 87, 90--91.) While at the 70th Precinct, plaintiff spoke to Sergeant Boone about offensive comments about his hair and Boone advised him to "tough it out." (Def. 56.1 Stmt. ¶ 53; Pl. Dep. at 89.)

3.The 71st Precinct

a.Employment

In July 2006, plaintiff requested and was granted a transfer to the 71st Precinct because it was closer to his home. (Def. 56.1 Stmt. ¶ 68; Pl. 56.1 Stmt. ¶ 46.) Plaintiff testified that he was given a choice of where to be placed based on his performance at the Academy on quantitative measures including number of arrests and summonses. (Pl. Dep. at 82--83.) In or around January 2007, plaintiff was transferred to a squad where, again, he was directly supervised by Sergeant Edwin Boone. (Def. 56.1 Stmt. ¶¶ 75--77; Pl. 56.1 Stmt. ¶ 55; Pl. Dep. at 117-18.) Sergeant Boone retired in the summer of 2007, and Sergeant Lency Signal became plaintiff's direct supervisor. (Def. 56.1 Stmt. ¶¶ 77--78; Pl. Dep. at 118.) Lieutenant Ann Towpash was Sergeant Boone's supervisor. (Deposition of Ann Towpash, Burden Dec'l Ex. M at 10.) Captain Shouldis was the Executive Officer of the 71st Precinct until December 2006. (Deposition of Daniel Shouldis, Burden Dec'l Ex. T at 5--6.)

The Rater for plaintiff's 16-month performance evaluation was Sergeant Boone and the Reviewer was Lieutenant Towpash. (Def. 56.1 Stmt. ¶ 93; 16-month Boone/Towpash Evaluation, Switzer Dec'l Ex. R.) Sergeant Boone gave plaintiff an overall rating of three-and-a-half to four, and a rating of four in many of the specific categories, but his ratings were changed by Lieutenant Towpash to a three. (Def. 56.1 Stmt. ¶¶ 92, 101; Pl. 56.1 Stmt. ¶¶ 55, 61, 63; Deposition of Edwin Boone, Burden Dec'l Ex. N at 40--77.) He received fours in "Community Interaction," "Adaptability," and "Physical Fitness/Physical Activities," and only a single two in "Interpersonal Skills." (16-month Boone/Towpash Evaluation.) The written comments state that plaintiff "respects authority and works well with the public, but has a poor rapport with his peers. He is highly competitive and refuses to appreciate the wisdom of senior officers. . . . [he] is an active police officer with many arrests. He often volunteers for difficult assignments . . . . [he] works hard to reduce crime. He is well groomed and his uniforms are always neat and clean. There are many communities within the precinct that relate to [him], and recognize him as a person that they can trust, based on the respectful manner in which he conducts himself." (Id.) Sergeant Boone testified generally that he perceived plaintiff to be an above-average police officer. (Boone Dep. at 17--21.) He also testified that plaintiff performed above-average in objective measures, including number of arrests, relative to his peers. (Id. at 20.)

The Rater for plaintiff's 22-month performance evaluation was Sergeant Signal and the reviewer was Captain Mark DiPaolo. (Def. 56.1 Stmt. ¶ 103--04; 22-month Signal/DiPaolo Evaluation, Switzer Dec'l Ex. T.) Plaintiff's overall rating was two-and-a-half. (Id.) The comments criticize plaintiff's "Community Interaction," "Judgment," and "Interpersonal Skills" and recommend that his probation and performance monitoring be extended. The Rater comments include that plaintiff "shows little interaction on patrol when dealing with the community and needs to be more involved." It goes on to say: "[Plaintiff] is [] polite and courteous with supervisory officers. At times [plaintiff] displays a lack of judgment when performing his job function. [Plaintiff] needs to develop a better rapport with his peers and supervisor." (22-month Signal/DiPaolo Evaluation.)

The review period for plaintiff's 22-month evaluation was the six-month period ended May 10, 2007. (Id.) The record is unclear as to the exact date when Sergeant Boone retired. However, plaintiff testified that Sergeant Signal was his sergeant for approximately 3 weeks to a month prior to transferring to the 60th Precinct in June 2007. (Pl. Dep. at 118.) Therefore, Sergeant Signal was plaintiff's supervisor for a very small part, if any part at all, of the six-month time period relevant to the 22-month evaluation she supplied.*fn3

While at the 71st Precinct, plaintiff received two CDs, one for losing his identification card and another for failing to properly maintain his memo book. (Def. 56.1 Stmt. ¶¶ 84, 87; Reports of Violation, Switzer Dec'l Exs. P, Q.) Plaintiff verbally challenged both CDs, but did not formally appeal them. (Pl. Dep. at 133.)

On June 11, 2007, Deputy Inspector Frank Vega, the Commanding Officer of the 71st Precinct, sent a memorandum to the Chief of Personnel concurring with the 22-month evaluation and listing plaintiff's two CDs as well as seven minor violations.*fn4 (Def. 56.1 Stmt. ΒΆΒΆ 110--11; Pl. 56.1 ...


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