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Gregory anderson v. the City of New York

December 27, 2012


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


Plaintiff Gregory Anderson brought this action against defendants the City of New York (the "City"); James C. Dean ("Dean"), individually and in his official capacity as Inspector and former Commanding Officer of the Emergency Services Unit ("ESU"); Michael O'Keefe ("O'Keefe"), individually and in his official capacity as Retired Sergeant of Emergency Services Squad Two ("Truck Two"); Juan White ("White"), individually and in his official capacity as Sergeant of Emergency Services Squad Four ("Truck Four"); and Kevin Diamond ("Diamond"), individually and in his official capacity as Detective of Truck Four.*fn1 Anderson alleged that defendants unlawfully discriminated against him on the basis of race, retaliated against him for reporting the discrimination, and created and maintained a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), 42 U.S.C. § 1983 ("§ 1983"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and the New York City Human Rights law, N.Y. City Admin. Code § 8-101 et seq. (NYCHRL").

By motion filed September 4, 2009, defendants moved for summary judgment. (Defs.' Mot. for Summ. J. ("Defs.' Mot.") (Doc. No. 41).) By order entered November 4, 2009, this Court referred that motion to the assigned Magistrate Judge, the Honorable Ramon Reyes, for a Report and Recommendation ("R&R"). On March 26, 2010, Judge Reyes issued an R&R recommending that defendants' motion be granted in part and denied in part. (Doc. No. 43.) On April 9, 2010, defendants City and Dean filed timely objections. (Doc. No. 44.) On April 21, 2010, plaintiff responded thereto. (Doc. No. 46.) For the reasons that follow, Judge Reyes' recommendations are adopted in part and rejected in part.


When reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party raises an objection to a Report and Recommendation, "the court is required to conduct a de novo review of the contested sections." See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Objections must be specific and clearly aimed at particular findings in the magistrate's proposal. See Camardo v. Gen. Motors-Hourly Rate Emps. Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992). To the extent that a party's objections merely reiterate arguments set forth in the original petition or "attempt to engage the district court in rehashing" them, the Court will review the report only for clear error. See, e.g., DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009).

The Court has reviewed de novo all portions of the R&R to which the parties concretely object, and has reviewed the remainder of the objections for clear error. In the interest of brevity, the Court will not repeat the factual and procedural background of plaintiff's complaints but will simply refer the parties to the R&R, which accurately and thoroughly sets out the relevant facts underlying the instant motion. (R&R at 2--8.)


I. Title VII Claims

As a threshold matter, Title VII requires that a plaintiff file a charge with the Equal Employment Opportunity Commission ("EEOC") within three hundred days of an alleged discriminatory act. 42 U.S.C. § 2000e-5(e)(1). Because Anderson filed his charge with the EEOC on April 26, 2000, all allegedly discriminatory acts occurring before June 30, 2005 are time-barred for the purposes of Title VII. Therefore, the sole qualifying event for Anderson's Title VII discrimination, hostile work environment, and retaliation claims is his August 2005 involuntary transfer from the ESU to the 113th Precinct.

A. Anderson's Title VII discrimination and hostile work environment claims are dismissed.

Plaintiff first objects to Judge Reyes' dismissal of his discrimination claim against the City under Title VII, which he argues should be preserved under a theory of disparate treatment. (Pl.'s Obj. at 8--9.) This objection merely reiterates the arguments in Anderson's previous petitions, and thus merits review only for clear error. See DiPilato, 662 F. Supp. 2d. at 339. Having found none, the Court GRANTS summary judgment for defendants as to plaintiff's Title VII claim against the City.

Second, Anderson objects to the dismissal of his Title VII hostile work environment claim against the City. Though the only timely incident is Anderson's August 2005 transfer, the time-barred incidents of discrimination that Anderson alleges may be used as "background evidence in support of a timely claim." Nat'l R.R. Corp. v. Morgan, 536 U.S. 101, 113 (2002).*fn2 Relying on Morgan, plaintiff argues at length that his transfer out of the ESU was sufficiently related to discriminatory acts occurring outside of the statutory period so as to form the basis of a hostile work environment claim under a continuing violation theory. (Pl.'s Obj. at 9--12.).

The Court finds that plaintiff has failed to introduce any evidence that his transfer was part of a "single unlawful employment practice," as is required to show that time-barred and non-time-barred acts collectively constitute a hostile work environment. See Morgan, 536 U.S. at 117. Anderson's viable time-barred allegations consist of sporadic, discriminatory actions, taken by different co-workers and supervisors at different trucks. These types of differences "preclude invocation of the continuing violation doctrine." Little v. Nat'l Broadcasting Co., Inc., 210 F. Supp. 2d 330, 368 (S.D.N.Y. 2002). A plaintiff may not "resurrect stale claims by stating that dissimilar acts are related," for to do so would transform the continuing violation doctrine into "a boundless exception to the statute of limitations." Crosland v. City of New York,140 F. Supp. 2d 300, 308 (S.D.N.Y. 2001). Accordingly, summary judgment is GRANTED with respect to plaintiff's hostile work environment claim against the City.

B. Anderson's retaliation claim against the City under Title VII is preserved.

Defendants object to Judge Reyes' recommendation that plaintiff's retaliation claim under Title VII be preserved for trial. (Defs.' Obj. (Doc. No. 44) at 4--7.) Defendants argue first that Anderson has not established a prima facie case of retaliation. (Id.) Further, defendants object that even if Anderson has established a prima facie case of retaliation, he has failed to demonstrate that defendants' non-discriminatory reasons for Anderson's 2005 transfer to the 113th Precinct were pretextual. (Id. at 5--8.) Defendants' objections are unavailing, however, as they merely reiterate at greater length the arguments on retaliation in defendants' motion for summary judgment. (Defs.' Mot. at ...

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