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Rafael Montanez v. City of New York

June 22, 2012


The opinion of the court was delivered by: Johnson, Senior District Judge:


Plaintiff Rafael Montanez ("Plaintiff" or "Montanez") filed the instant action alleging: (1) discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; (2) a claim pursuant to 42 U.S.C. § 1983 alleging that the City of New York engages in a policy of discrimination as defined by Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978);*fn1 and (3) claims defined by related state law. Defendants move for summary judgment. Based on the submissions of the parties, the June 8, 2012 oral argument before this Court, and for the reasons stated below, Defendants' motion is granted.


Rafael Montanez is a Latino male who was hired by the New York Police Department ("NYPD") and appointed Police Officer on July 18, 1996. He was assigned to the 70th Precinct in Brooklyn. On September 22, 2000, he was arrested by the New York State Parks Department and charged with disorderly conduct, resisting arrest, harassment and obstruction of governmental administration. Following this event, his problems at work were many. He was initially suspended from duty while departmental charges were preferred against him, ultimately lost 45 vacation days and was placed on "dismissal probation" for one year, commencing in 2003. At this time, Plaintiff worked the 8:00am -- 4:00pm tour of duty. Plaintiff was informed in writing that pursuant to departmental policy, his dismissal probation could be extended if, during that term of probation, he took sick leave, vacation leave, or was placed on limited duty. Indeed, Plaintiff's dismissal probation was extended to 2005 for a number of these reasons. At the end of his second year of dismissal probation, Plaintiff was placed in the "Performance Level Monitoring Program ('PMP')" Level I due to three negative evaluations citing, inter alia, his lateness and interpersonal problems. As to his lateness, Plaintiff cited his twin autistic sons, whose early morning care (combined with traffic) made it difficult for him to arrive promptly at 8:00am. In response, Plaintiff was placed on the noon -- 8:00pm shift.

Another undisputed contributor to Plaintiff's attendance problem was his medical condition. He claims to have suffered a total of five injuries to his back: a 2001 injury sustained on-duty while apprehending a perpetrator; an injury sustained while serving a tour of military duty in 2002; a 2003 injury sustained while lifting a five-gallon water cooler jug in his home; another on-duty injury in 2005; and an off-duty injury in 2007, sustained when one of his sons jumped on his back. Each of these conditions contributed to his absences at work and Plaintiff has been on what the NYPD refers to as the "Chronic Sick" list almost continuously since December 2003.

Plaintiff continued to receive negative evaluations for his lateness and difficulty interacting with others. On April 9, 2006, he was placed on PMP Level II (a more serious probationary status) for a period of at least 18 months. During his time on PMP Level II, specifically, on April 15, 2007, Plaintiff was involved in an incident one morning during which a Sergeant addressed a group of officers as "hoes," to which Plaintiff retorted, "Sarge, not just 'hoes,' nappy-headed hoes." Like Plaintiff, the Sergeant is male and Latino. Three female officers present were offended by this comment and both Plaintiff and the Sergeant were transferred. Plaintiff was transferred to the 107th Precinct in Queens and was assigned to attend the "Professional Conduct in the Workplace" seminar offered at the Police Academy. He was placed on the 7:00am -- 3:00pm tour of duty. His performance review for 2007 indicated continual lateness as well as problems interacting with others.

In March 2008, Plaintiff submitted a request to have back surgery. The NYPD's district physician denied the request, finding the procedure unnecessary. Plaintiff had the surgery without departmental clearance on April 30, 2008, and returned to the force in June.

That June, Montanez was placed on PMP Level III, an even more serious probationary status. His tour was changed from 7:00am -- 3:00pm to 4:00pm -midnight, again in response to his claim that his sons' morning care and rush hour traffic caused his lateness. Plaintiff reported sick on several occasions in late 2008 after being found fit for duty, albeit restricted duty.

In August 2008, Plaintiff applied for an accident disability pension. While that was pending, he reported a theft to his locker, to wit: a missing duty coat and "reefer jacket." In the course of the investigation it was discovered that Plaintiff's combination lock bore a serial number, in violation of NYPD policy. This violation, along with others based on his lateness, absence and his professional conduct, led to another departmental trial which resulted in a 60-day suspension and an additional period of dismissal probation. While that trial was pending, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination and retaliation.

In May 2009, the NYPD's Article II Medial Board (the "Board") determined that the herniated disc that Plaintiff attributed to his 2008 surgery was not related to any of the on-the-job injuries offered by Plaintiff because the injury leading to his surgery was, according to the evidence presented, too recent to be job-related. He ultimately retired on ordinary disability on August 13, 2009.*fn2 The Board's determination was later remanded in order to permit him to substantiate his claim with a line-of-duty injury report from the alleged 2005 injury, and supporting medical documentation, but he failed to do so.

Defendants move for summary judgment, arguing that Plaintiff cannot demonstrate a nexus between the challenged actions and his race, and that his hostile work environment claim is barred.



Defendants claim that because Plaintiff did not allege a hostile work environment claim in his EEOC charge, the claim is unexhausted and cannot be considered herein. However, the Court's jurisdiction is proper not only on issues specifically raised in Plaintiff's EEOC's charge, but also those claims "reasonably related" to those charges alleged in the EEOC charge. "The scope of the judicial complaint in a Title VII action has generally been construed to be limited not to the words of the charge but to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Smith v. Amer. President Lines, Ltd., 571 F.2d 102, 108 n.10 (2d Cir. 1978); see also Martin v. MTA Bridges & Tunnels, 610 F. Supp. 2d 238, 253 (S.D.N.Y. 2009); Trindade v. Leavitt, 2005 WL 1541050, at *2 (E.D.N.Y. June 30, 2005). Because Plaintiff's claim that he was subjected to a hostile work environment is also based on his race, the Court finds that it is reasonably related to ...

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