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Deyanira Gomez v. the City of New York

April 30, 2012

DEYANIRA GOMEZ, PLAINTIFF,
v.
THE CITY OF NEW YORK DEFENDANT.



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

Memorandum and Order

Plaintiff Deyanira Gomez ("plaintiff" or "Gomez"), a former police officer with the New York City Police Department ("NYPD"), filed this action against the City of New York ("NYC") alleging that NYPD, on the basis of her gender and national origin, discriminated against her, subjected her to a hostile work environment, failed to promote her, and retaliated against her in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 ("§ 1981") & 1983 ("§ 1983"); the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, et seq. (McKinney 2010); and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-502. Before the Court is the defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendant's motion is GRANTED.

DISCUSSION

The following facts are drawn from the Amended Complaint and defendant's Rule 56.1 Statement, which is unopposed by plaintiff for the purposes of this motion. See Defendant's Rule 56.1 Statement of Undisputed Facts ("Def.'s R. 56.1"). Gomez, a Dominican-American woman, became a police officer with the NYPD in February 1994.

Amended Complaint dated May 12, 2009 ("Am. Compl.") ¶ 9. On or about December 13, 2003, Gomez took Examination No. 3560 in order to qualify for promotion to Sergeant in the NYPD. Id. ¶ 14. In 2004, she was notified by the Department of Citywide Administrative Services that she had passed the exam and was on the Eligible List for promotion. Id. ¶ 15.

On April 23, 2004, Gomez was assigned to the 75th Precinct. Def.'s R. 56.1 ¶ 7. She testified that beginning in October 2004, she was sexually harassed by a supervisor, Sergeant Lee Chong ("Lee Chong"). Def.'s R. 56.1 ¶¶ 8-43. In July 2005, she complained about the harassment to the New York Police Department Office of Equal Opportunity. Id. ¶¶ 33, 43. Gomez alleges that Lee Chong and several other officers in the 75th Precinct retaliated against her for the complaints that she made by, among other things, giving her unfavorable assignments, failing to pay her overtime, and issuing disciplinary letters. Id. ¶¶ 33, 72-108, 162-72.

At her request, on February 6, 2006 Gomez was transferred from the 75th Precinct to the 23rd Precinct. Def.'s R. 56.1 ¶¶ 84, 109. She alleges that after she transferred to the 23rd Precinct, she was again subject to further harassment and retaliation for her complaints against Lee Chong. Id. ¶¶ 125-51, 184. Gomez also alleges she was subject to discrimination due to male officers' stereotypes about the sexual promiscuity of women from the Dominican Republic. Id. ¶¶ 112-19.

Gomez was subject to disciplinary charges for three instances of insubordination and three instances of unauthorized use of pepper spray on suspects (one of whom was a handcuffed high school truant). Id. ¶¶ 172-73, 176. These charges were substantiated after an investigation by the Civilian Complaint Review Board ("CCRB") and hearings were held before the Assistant Deputy Commission for Trials Claudia Daniels-DePeyster on May 30, 2006 and June 16, 2006. Id. ¶¶ 174-76. On October 30, 2006, Gomez was found guilty of two of the three insubordination charges and two of the three charges for unauthorized use of pepper spray. Id. ¶ 176.

On or about August 31, 2006 Gomez received a letter from the NYPD Employee Management Division that she had not been selected for appointment to sergeant. Am. Compl. ¶ 17. Plaintiff alleges that the disciplinary charges that were brought against her were in retaliation and were deliberately kept pending so that her application for promotion would be denied. Id. ¶ 18; Def.'s R. 56.1 ¶ 158. She claims that denial was in accordance with a rule that if charges were pending against an applicant, that applicant would not be promoted. Def.'s R. 56.1 ¶¶ 157-161. Plaintiff has presented no evidence of the existence of this rule.

JURISDICTION

This Court has original jurisdiction over plaintiff's § 1981 and § 1983 claims, claims arising under federal law. The Court has supplemental jurisdiction over plaintiff's state law discrimination claims. Federal courts have supplemental jurisdiction over "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A state law claim forms part of the same controversy if the state and federal claim "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L.Ed.2d 218 (1966). Here, the parties and alleged events and injuries that form the grounds for plaintiff's federal claims are identical to those that form the grounds for plaintiff's state law claims.

DISCUSSION

I.Summary Judgment Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As an initial matter, the moving party has the burden of demonstrating that no genuine dispute of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or ...


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