The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Christopher Miller commenced the instant action asserting that he was discriminated against in connection with his employment on account of his race and gender and that he was retaliated against for engaging in protected activity. Miller asserts claims pursuant to Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. §§ 1981 and 1983; the New York State Human Rights Law ("HRL"); and the New York State Constitution.*fn1
Presently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56, seeking dismissal of the Complaint in its entirety.
On October 5, 1999, Plaintiff Christopher Miller applied to be a police officer with the City of Ithaca Police Department ("IPD"). In his application, Miller claimed that he was never "dismissed or discharged from any employment for reasons other than lack of work or funds" and that he never "resign[ed] from any employment rather than face dismissal." Saul Decl. at Ex. A. Unbeknownst to Defendants at the time, the application failed to identify two prior employers. One of the prior employers, the Town of Vinton, Virginia Police Department, recommended that Plaintiff be discharged from his employment due to various incidents involving "his job performance and with f[o]llowing directions from supervisors." Def. Ex. L.*fn2
Plaintiff apparently told Defendants that he was unable to get a job as a police officer in Virginia. Plaintiff also was employed at Cargill, Inc. While at Cargill, Plaintiff was suspended for putting grease on the phone used to communicate with individuals in the mine. Def. Ex. G. Shortly thereafter, Plaintiff's employment with Cargill was terminated for putting something in another employee's locker. Id.*fn3
On September 7, 2000, Plaintiff commenced working for the IPD and attended the Broome County Police Academy. During that period of time, Plaintiff wrote an autobiography. Among other things, the Plaintiff wrote that, when he moved to Virginia, he "stayed out of law enforcement altogether," and "no one would hire me in Virginia as a cop. . . ."*fn4
The IPD provided mandatory training to all officers. It also offered additional, optional, non-mandatory training. In determining whether to provide optional training, the IPD made decisions based on operational needs and budgetary considerations. Other factors included seniority, staffing needs, overtime expenditures, and whether the proposed training was relevant to the officer's particular assignment. To request training, an officer completes a training request form. The completed form is submitted to the staff officer for endorsement (or refusal of endorsement). The form is then sent to the training officer, where it is reviewed by the training coordinator or assistant training coordinator for approval or denial. Any requests that make it past this stage are presented to the Professional Standards Committee, comprised of the Chief of Police and Deputy Chiefs, with input from the training coordinator and/or assistant training coordinator, which makes a final determination.
During his employment with the IPD, Plaintiff applied for nearly every training opportunity offered. Although not approved for every training for which he applied, Plaintiff participated in many training courses. Plaintiff claims that he was denied certain training opportunities on account of his race and in retaliation for having complained about discrimination.
In September 2004, the IPD Chief of Police determined that there was probable cause to believe that Plaintiff "commit[ted] the crime of criminal mischief against the residents of the area of the City known as the 'Jungle' by damaging their personal property." The Chief of Police sought to terminate Plaintiff's employment as a result of this incident. In satisfaction of the charges, Plaintiff agreed to a four week suspension and forfeiture of five days of leave time.*fn5
In 2007, Plaintiff applied for, but was not promoted to, a position as a sergeant. Plaintiff obtained the top score on the relevant civil service examination. Defendants contend that, nonetheless, there were better qualified officers and that Plaintiff had character issues that precluded him from being promoted. Plaintiff, on the hand, contends that the then Chief of Police told Plaintiff that she had to promote minorities. Defendants deny that any such statement was made.
On April 26, 2008, Plaintiff issued a bail receipt for $100 after receiving only $80 in bail money. As a result, a letter of reprimand was placed in Plaintiff's file. On August 4, 2008, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR") against the IPD claiming that he was disciplined for various infractions and that other officers were not, that he was denied a promotion, that he was passed over for training opportunities, that he was being retaliated against, and that minorities received preferential treatment.
On September 19, 2008, Plaintiff was assigned to desk duty. Plaintiff contends that this was on account of gender-based discrimination and in retaliation for his complaints of discrimination. Defendants assert that the assignment was a result of staffing coverage needs and the fact that Plaintiff was working overtime, rather than his regular shift.
On May 13, 2009, Plaintiff was assigned to a STOP DWI shift. Following the shift, Plaintiff wrote down the license plates of four vehicles he claimed to have stopped during the shift. An investigation suggested that Plaintiff did not stop the cars he claimed to have stopped. As a result, Plaintiff was issued a notice of discipline and received certain sanctions.*fn6 In addition, the District Attorney, who had been made aware of the STOP DWI allegations, made a determination that Plaintiff had credibility issues that would have to be disclosed to criminal defendants and, therefore, Plaintiff could not be used as a prosecution witness.
In July 2009, Plaintiff filed another charge of discrimination with the NYSDHR. For the month prior to July 20, 2009, Plaintiff had been assigned various beats, including central car beats, backup/traffic beats, and walking beats. In July and August 2009, Plaintiff was assigned to beat 204,*fn7 rather than his favored 203c beat, which covers the "flats," an area of Ithaca in which the poorer population is centered and has a higher crime rate. Plaintiff claims that the beat assignments were in retaliation for his charge of discrimination. Defendants, on the other hand, claim that Lieutenant Byrd received a community complaint concerning Plaintiff's conduct from a member of the Ithaca minority community and that it was the third complaint about Plaintiff in a one year period. Defendants also purport to have been concerned with Plaintiff's following of protocol while he on the Commons beat (Beat 207). Defendants allege that Byrd became concerned that Plaintiff was not acting professionally towards minority citizens of the community and was not following protocol and, therefore, assigned him to beats where he would have lessened interaction with minorities and be subjected to closer supervision.
After July 20, 2009, Plaintiff worked for approximately four weeks when he went on administrative leave. Plaintiff remained on administrative leave from August 2009 through December 2009. By letter dated September 22, 2009, the Tompkins County District Attorney wrote a letter to Defendant Chief Vallely stating, in part, that:
The findings made in relation to the disciplinary proceeding into Officer Chris Miller's performance of certain duties has created a problem regarding his value as a witness in any pending or future hearings or trials.
It is my opinion that Officer Miller's credibility with respect to the accuracy/veracity of his paperwork has been irreparably damaged. I am unwilling to put him on the witness stand under and foreseeable circumstances owing to significant Brady and Giglio issues. . .
Upon his return from administrative leave, Defendants placed Plaintiff on permanent desk duty, purportedly because his value as a police officer had been undermined by the letter from the District Attorney.
In the spring of 2010, Defendants learned that Plaintiff had previously been employed as a police officer with the Vinton, Virginia police department. In April 2010, Defendant Deputy Chief Barber obtained a copy of Plaintiff's autobiography, previously discussed supra, in which Plaintiff wrote that "no one would hire him in Virginia as a cop." In May 2010, Defendants learned that Plaintiff was "terminated during his probationary period" from his position with the Vinton Police Department "for failure to perform up to standards of a police officer. . . ." The letter from the Vinton Police Department listed various reasons supporting the termination, including: counseling for failure to follow written directives, failing to follow established procedures, and failing to follow verbal directions; failing to have a state inspection sticker on his personal vehicle; and his "admission to taking the sunglasses of a police officer and scratching "Im A Dick" on the lenses because he did not like the officer."
On May 20, 2010, Plaintiff commenced the instant litigation. On May 26 or 27, Defendant Vallely asked Defendant Barber to draft a notice of discipline based on Plaintiff's falsification of his employment application and to seek the termination of Plaintiff's employment as the penalty. In the early to mid afternoon of May 27, 2010, Barber sent to Vallely a draft notice of discipline seeking the termination of Plaintiff's employment. Vallely made one final edit of the notice of discipline and otherwise approved the draft. By 5:00 p.m., both Vallely and Barber had left work for the day. At 5:30 p.m on May 27, 2010, Plaintiff served a copy of the Complaint in this lawsuit on the IPD. The notice of discipline was served on Plaintiff on June 1, 2010. Plaintiff demanded arbitration in connection with the notice of discipline, which is pending. Plaintiff is receiving pay during the arbitration proceeding.
Presently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety. Plaintiff opposes the motion. Defendants have submitted a reply.
Defendants move for summary judgment pursuant to Rule 56. It is well settled that, on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis ...