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Barounis v. New York CIty Police Dep't

December 12, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Stephen Barounis, a Sergeant on pre-retirement leave from the New York City Police Department ("NYPD"), brings this action against defendants NYPD, Lieutenant Jose Medina ("Lt. Medina"), and now retired Lieutenant Luis Algarin ("Lt. Algarin"), alleging claims of race and age discrimination, hostile work environment, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL")*fn1 and the New York City Human Rights law ("NYCHRL").*fn2

Defendants now move for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure on the following grounds: (1) failure to establish a prima facie case of race or age discrimination; (2) failure to rebut the NYPD's legitimate non-discriminatory reasons for the employment actions taken against him; (3) failure to establish that the alleged harassing conduct by Lts. Medina and Algarin constituted a hostile work environment; (4) failure to establish a prima facie case of retaliation; (5) failure to establish a constructive discharge claim; and (6) failure to establish a prima facie case of race or age discrimination, hostile work environment in violation of the NYCHRL. For the following reasons, defendants' motion is granted in its entirety.


A. Undisputed Facts

Barounis, a Caucasian male, born June 19, 1963, was appointed to the NYPD in January 1985.*fn4 In 1998, Barounis was promoted to Sergeant, and from then until his first retirement, Barounis was a Squad Sergeant at the Bronx Task

Force, where he worked the midnight tour.*fn5 Barounis retired from the NYPD in February 2005. He testified that he had retired because "after 20 years, you're supposed to leave . . . [i]t's like cop jargon. 20 and out."*fn6 On January 20, 2006, Barounis rejoined the NYPD and was assigned to the Bronx Task Force as a Sergeant working the midnight tour.*fn7 In 2006, Captain ("Cpt.") Thomas Traynor, a Caucasian male, was the Commanding Officer ("CO") of Barounis's unit;*fn8 Lt. Algarin, an Hispanic male, was the Integrity Control Officer ("ICO").*fn9 In 2007, Lt. Chris Batignani, a Caucasian male, became Barounis's platoon supervisor. In February, 2007 Lt. Medina, an Hispanic male, was assigned to the Bronx Task Force and became the ICO in 2008 after Lt. Algarin resigned the position.*fn10

B. Discrimination by Lt. Algarin and Lt. Medina

Barounis alleges that beginning in 2007, Lts. Algarin and Medina (the "individual defendants") discriminated against him on the basis of his race and age.*fn11 Plaintiff alleges that the individual defendants: (1) made false allegations to the NYPD's Internal Affairs Bureau ("IAB"); (2) unjustifiably prohibited Barounis from working overtime and showed favoritism to Hispanic officers; (3) refused to let plaintiff sign in at the beginning of his shifts; and (4) called him a "criminal" and a "thief" and otherwise tried to force Barounis to retire.*fn12

Barounis testified that Lt. Medina questioned him in front of other officers, asking "How old are you" and "It's time for you to get off this job. You're over 20 years" and "it's time for you to go. . . it's a young man's job."*fn13

Although Barounis could not identify which officers overheard these statements, he testified that they occurred on a daily basis.*fn14 Barounis alleges that Lts. Medina and Algarin belittled, harassed, and mocked him in front of his colleagues on a regular basis and that they were "singling [him] out, they're making [his] life miserable here" and "passed comments to [him] that they're going to force [him] to retire."*fn15 Lt. Batignani stated that he had expressed his concerns about Lts. Algarin and Medina's behavior towards Barounis.*fn16 However, when asked if Barounis' performance of his duties was interfered with by Lt. Algarin, Lt. Batignani stated that "[i]f his performance was hindered in any way, I didn't see [it] -- he was a very good supervisor, so I couldn't see that, you know, it was hindered."*fn17 Barounis testified that Lt. Medina commented in front of him and two Hispanic officers that "the good old days of the good old white boys running the show here is over."*fn18

Barounis recalls that on one occasion, Lt. Medina mocked him in front of other officers because Barounis decided to close down several streets after one of his officers was injured on the job.*fn19 In another instance, Barounis testified that Lt. Medina favored Hispanic officers over Caucasian officers when he changed a roll call assignment. Two Caucasian officers who had a "knack" for using the plate reader*fn20 were supposed to be assigned the job, but Lt. Medina assigned it to two Hispanic officers.*fn21 Plaintiff alleges that Lt. Medina said "I'm going to take care of some Hispanics, too."*fn22

Barounis contends that on several occasions, the individual defendants requested to review his memo books. In one instance, one of the memo books was lost after Lt. Algarin claimed he returned it to Barounis.*fn23 Barounis alleges that Lt. Algarin took the memo book so that he could issue Barounis a command discipline. Barounis, in fact, received a command discipline but no penalty.*fn24

Barounis alleges that the individual defendants treated other non-Hispanic officers in an unprofessional manner as well. Barounis does acknowledge, however, that between 2006 and 2008, the individual defendants issued command disciplines to both Hispanic and non-Hispanic officers alike.*fn25

Barounis also alleges he was treated differently than other officers in that he was issued a minor violation by Lt. Medina for double-parking a radio car.*fn26 Although the minor violations log shows that other officers assigned to his unit have been issued violations for the same offense, Barounis maintains he was the only Supervisor to receive one.*fn27

Barounis did not initially report the discriminatory actions of Lts. Algarin and Medina to the IAB or the NYPD's Office of Equal Employment Opportunity ("OEEO").*fn28 Barounis alleges that once a discrimination accusation is made, a supervisor must report the alleged conduct to the OEEO.*fn29

In March 2008, Barounis told Cpt. Traynor that he was going to put in his papers for retirement because of the "mistreatment" he was receiving from Lts. Algarin and Medina.*fn30 Barounis chose to retire instead of requesting to be transferred to another command because he believed the transfer process would take too long.*fn31 However, Barounis admits that he did not immediately submit his paperwork for either option.

Other sergeants in the Bronx Task Force witnessed the hostile treatment Lts. Medina and Algarin exhibited toward Barounis. Sgt. Candia stated he believed that Barounis was discriminated against because of race and age because Lts. Algarin and Medina never treated Hispanic officers the way they treated Barounis and would repeatedly ask Barounis how old he was.*fn32 Sgt. Calderon stated that Lt. Algarin told him to "tell him [plaintiff] to put his retirement papers in or they will make his life miserable."*fn33 Sgt. Calderon also stated that Lts. Algarin and Medina treated other Caucasian supervisors harshly; they would tell Sgt. Calderon that Barounis should be in jail and that he was a criminal.*fn34 Sgt. Calderon also stated "I would also use the terms volatile, toxic, and stressful to describe the work place that they created for Sgt. Barounis."*fn35

Further, Sgt. Calderon stated that Lt. Medina told him "I know who runs this building. I'm here to take care of Latinos, I'm here to take care of you."*fn36

C. Overtime Abuse Allegations

On May 6, 2008, the IAB received an anonymous call claiming retaliation and overtime abuse within the Bronx Task Force.*fn37 Specifically, it was alleged that Lt. Medina had been removed as ICO of the Bronx Task Force by Cpt. Traynor because Lt. Medina had uncovered overtime abuse by Barounis and Barounis's supervisor, Lt. Batignani.*fn38 When interviewed by Detective Shawnee Moore, Lt. Medina claimed that he had reported his concerns regarding Barounis's excessive overtime on several occasions. Lt. Medina claimed that Lt. Algarin had brought the abuse to his attention and that Lt. Batignani had permitted and authorized the excessive overtime.*fn39

During the investigation, the Deputy Inspector for the Special Investigations Unit of IAB requested the overtime reports from members of the Bronx Task Force from December 1, 2005 through April 1, 2008.*fn40 It was also discovered that another investigation was pending against Barounis, also brought about by an anonymous letter to the IAB, for allegedly accruing excessive overtime while working in uniform, on duty, at his brother's bars in Manhattan.*fn41

In June 2008, Barounis was questioned about these allegations. When asked to produce certain memo books, Barounis was unable to comply, claiming they were never returned to him by the individual defendants. The investigation's report stated that in many instances of overtime requests by Barounis, the entries in the memo books were very limited and Barounis was unable to give additional information as to his whereabouts when performing the overtime.*fn42 The records show that from January 1, 2006 through December 31, 2006, Barounis accrued 1,431 hours of overtime, making him third on the list of the top four hundred compensatory time earners in the entire NYPD.*fn43 From January 1, 2007 to December 31, 2007, Barounis accrued 874 hours of overtime, making him fifth on the list. For that same time period, Lt. Algarin accrued 1130 overtime hours and was number three of the top four hundred compensatory time earners.*fn44

D. Investigations into Barounis's Allegations of Overtime Abuse and Harassment by Lts. Medina and Algarin On June 19, 2008, the OEEO was contacted regarding the allegations of abusive treatment Barounis was experiencing from the individual defendants. The OEEO advised Barounis that his allegations did not rise to the level of employment discrimination.

On June 26, 2008, Lt. Batignani was interviewed about Barounis's issues with Lts. Algarin and Medina. Lt. Batignani stated that although Lt. Algarin had informed him that Barounis slept during his tour, signed in late and left early, he never personally witnessed such conduct. Lt. Batignani also stated that he had seen Lts. Algarin and Medina "tag teaming" Barounis with regards to producing his memo books. Sgts. Calderon and Candia were also questioned about Lts. Medina and Algarin's treatment of Barounis. Both responded that it was an adversarial relationship and both witnessed Barounis being yelled at or singled out on several occasions.*fn45

Lt. Medina was questioned on July 2, 2008, about the excessive overtime accusations. He stated that for many of the overtime requests he had received from Barounis, he did not observe Barounis performing duties that justified the overtime. Lt. Medina stated that because Barounis had trouble identifying the tasks that required overtime, he instructed Barounis not to perform any overtime unless first informing him. Lt. Medina said that he had tried to inform Cpt. Traynor of the overtime abuse, but that Cpt. Traynor was unresponsive.*fn46 Therefore, he continued investigating on his own, noting that he suspected overtime abuse from Lt. Batignani and Sgt. Candia, a Hispanic male. During the course of his investigation, Lt. Medina said he requested several memo books from Barounis in order to investigate the excessive overtime.*fn47
On August 21, 2008, Leeds, Morelli & Brown, P.C. sent a letter to the Commissioner of the NYPD, notifying him that the law firm had been retained by Barounis regarding his allegations of discrimination.*fn48 On November 5, 2008, the Chief of Patrol requested that Barounis be transferred out of the Bronx Task Force to the 42 Precinct, effective November 10, 2008.*fn49 He was also switched from the night shift to the day shift. As a result of the transfer, Barounis submitted his intention to retire on November 6, 2008, and began his pre-retirement leave with an official retirement date of July 22, 2011.*fn50 Barounis testified that he knew that his transfer meant that there was a "target on my back," and that "it was time to leave for my own safety."*fn51 Lt. Medina and Cpt. Traynor were also transferred as a result of the investigation into overtime abuse.

On November 19, 2008, Barounis was served with Charges and Specifications that stated that he had: (1) improperly worked beyond his scheduled tour on non-ordered overtime; (2) improperly adjusted his schedule to commence work before the start of his scheduled tours resulting in compensatory overtime; (3) was directed to stop working non-ordered overtime unless specifically directed to do so (and failed to comply with this order); and (4) failed to maintain and accurately complete department records including overtime slips and activity logs.*fn52 Barounis was found not guilty of Specifications 1, 2 and 3 and guilty of Specification 4. The recommendation was that Barounis be dismissed from the NYPD, but that the dismissal be held in abeyance for one year, and that he be suspended for thirty days. On November 20, 2008, Barounis filed a Charge of Discrimination with the U.S. Equal Employment Opportunity ("EEOC").*fn53


A. Summary Judgment

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."*fn54 "For summary judgment purposes, a 'genuine issue' exists where the evidence is such that a reasonable jury could decide in the non-moving party's favor."*fn55 "'A fact is material when it might affect the outcome of the suit under governing law.'"*fn56

In a summary judgment setting, "[t]he burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists."*fn57 "When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence . . . on an essential element of the non-movant's claim."*fn58 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. The non-moving party "'must do more than simply show that there is some metaphysical doubt as to the material facts,'"*fn59 and cannot "'rely on conclusory allegations or unsubstantiated speculation.'"*fn60

In deciding a motion for summary judgment, a court must "'construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'"*fn61 However, "'[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'"*fn62

"'The role of the court is not to resolve disputed issues of fact but to assess whether there are any ...

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