January 9, 2014
SAUL JEUNE, Plaintiff,
CITY OF NEW YORK, et al., Defendants.
OPINION AND ORDER
JESSE M. FURMAN,
Plaintiff Saul Jeune, a police officer with the New York City Police
Department ("NYPD"), sues the City of New York (the "City") and two NYPD
officers, Sergeant Anita Polanco
and Lieutenant Frankie Rivera. Plaintiff asserts that Sergeant Polanco and
Lieutenant Rivera discriminated against him, retaliated against him for engaging
in protected activity, and subjected him to a hostile work environment, all in
violation of federal, state, and local antidiscrimination statutes, as well as
New York state tort law. Defendants now move for summary judgment. (Docket No.
26). For the reasons discussed below, Defendants' motion is GRANTED in part and
DENIED in part.
The following facts, taken from the Complaint and the admissible
materials submitted by the parties, are viewed in the light most favorable to
Plaintiff, as he is the non-moving party.
Plaintiff, who identifies as black and of Haitian descent, has been
employed as a police officer by the NYPD since January 2005. (Collyer Decl.
(Docket No. 27), Ex. A ("Collyer Jeune Dep.") 18:6-11; 88:4-6; Collyer Decl.,
Ex. B ("Appointment Memorandum")). He is assigned to the Twenty-Sixth Precinct.
(Pl.'s Responses Defs.' Local Rule 56.1 Statement of Undisputed Facts ("Pl.'s
Rule 56.1 Statement") (Docket No. 34) ¶ 6). During much of the time relevant to
this case, Plaintiff had a regular partner named Officer Richards; they worked
together most - but not all - of the time. (Collyer Jeune Dep. 46:10-20).
In 2009, another police officer in the Twenty-Sixth Precinct, Jill
Rosenthal, filed a discrimination lawsuit against Sergeant Nancy Fuocco. (Collyer
Jeune Dep. 69:17-70:6). The law firm of Cronin & Byczek, which represents
Plaintiff in the instant matter, contacted Plaintiff in January 2010 to explore
the possibility that he would serve as a witness in the Rosenthal case;
ultimately, however, he never gave testimony or did anything else to assist
Rosenthal in the litigation. (Mashhadian Decl. (Docket No. 32), Ex. B ("Mashhadian
Jeune Dep.") 71:2-9; 72:5-6; 73:3-9; Pl.'s Rule 56.1 Statement ¶ 21).
The evening of March 11, 2011, Plaintiff's wife gave birth to their
baby daughter. (Pl.'s Rule 56.1 Statement ¶ 46; Collyer Jeune Dep. 83:3-6). At
about midnight that same night, Plaintiff called the desk officer to request an
emergency day off (known as an "E-day") for the following day, March 12, 2011,
and the desk officer granted it. (Collyer Jeune Dep. 82:14-83:11; Pl.'s Rule
56.1 Statement ¶ 47). Plaintiff then requested the next day, March 13, as
another day off, which Sergeant Polanco initially denied, but ultimately
granted. (Collyer Decl., Ex. C ("Collyer Polanco Dep.") 39:24-40:6; 40:13-41:5;
Pl.'s Rule 56.1 Statement ¶ 52).
On March 14, Plaintiff submitted a "Leave of Absence Report"
requesting to take off from March 17 through March 21. (Collyer Decl., Ex. H).
Sergeant Polanco testified that requests for more than one day off at a time
could only be granted by a higher-ranking officer, such as Lieutenant Rivera (Collyer
Polanco Dep. 31:24-32:10); Plaintiff contests this testimony, however, asserting
that Sergeant Polanco did, in fact, have authority to grant such a request.
(Pl.'s Rule 56.1 Statement ¶ 34). In any case, Plaintiff's request for those
days off was denied. (Collyer Jeune Dep. 87:2-4; Pl.'s Rule 56.1 Statement ¶
50). According to Defendants, the denial was based on staffing needs and
Plaintiff's failure to follow NYPD protocol in requesting the time off. (Defs.'
Mem. Law Supp. Mot. Summ. J. ("Defs.' Mem.") 7-8).
Shortly thereafter, on or about March 17, 2011, Plaintiff filed an
internal complaint with the NYPD Office of Equal Employment Opportunity ("OEEO"),
claiming that the denial of additional leave was discriminatory. (Mashhadian
Jeune Dep. 107:1-8; Mashhadian Decl., Ex. E ("Mashhadian Rivera Dep.")
54:11-23). Sergeant Polanco and Lieutenant Rivera both acknowledged that they
were aware of the OEEO complaint. ( See Pl.'s Opp'n 11; Mashhadian Rivera
Dep. 54:11-23). At the time of his deposition in this case, Plaintiff was
unaware of the status of the OEEO proceedings. (Mashhadian Jeune Dep. 107:9-12).
Plaintiff also testified that Sergeant Polanco treated him unfairly on
a number of other occasions, although the record does not make clear when the
conduct occurred. Specifically, Plaintiff testified that Sergeant Polanco
threatened him with various forms of discipline (Mashhadian Jeune Dep. 56:12-17,
57:7-24), yelled at him ( id. 57:23-24), gave him particularly difficult
and undesirable assignments ( id. 91:19-92:2), subjected him to excessive
scrutiny ( id. 96:12-17), denied him allotted meal times ( id.
81:13-15; Pl.'s Opp'n 6), separated him from his partner (Mashhadian Jeune Dep.
111:21), gave him low performance evaluations ( id. 59:9-60:11), and
denied him credit for two arrests from crime scenes that he had investigated (Mashhadian
Decl., Ex. H ("50-h Hearing") 63:6-64:24).
Plaintiff brings four types of claims. First, he brings claims for
discrimination based on his race and national origin, under Title VII of the
Civil Rights Act of 1964 ("Title VII") (Compl. (Docket No. 1) ¶¶ 58-63), 42
U.S.C. § 1981 ( id. ¶¶ 35-38), 42 U.S.C. § 1983 ( id. ¶¶ 39-44),
the New York State Human Rights Law ("NYSHRL") ( id. ¶¶ 64-67), and the
New York City Human Rights Law ("NYCHRL") ( id. ¶¶ 68-71). Second, he
claims that Defendants unlawfully retaliated against him, also under Title VII (
id. ¶¶ 58-63), Section 1981 ( id. ¶¶ 35-38), Section 1983 ( id.
¶¶ 39-44), the NYSHRL ( id. ¶¶ 64-67), and NYCHRL ( id. ¶¶ 68-71).
Third, he alleges that he was subjected to a hostile work environment,
presumably also in violation of the aforementioned federal, state, and local
statutes. ( Id. ¶¶ 45-52). Finally, he brings an array of state tort
claims. ( Id. ¶¶ 72-97). The Court addresses each set of claims in turn.
A. Standard of Review
Summary judgment is appropriate where the admissible evidence and the
pleadings demonstrate "no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a); see also
Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). A
dispute over an issue of material fact qualifies as genuine if the "evidence is
such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord
Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The moving party
bears the initial burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). "In moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant's burden will be satisfied if he
can point to an absence of evidence to support an essential element of the
nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23);
accord PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.
In ruling on a motion for summary judgment, all evidence must be
viewed "in the light most favorable to the non-moving party, " Overton v.
N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir.
2004), and the court must "resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary judgment is
sought, " Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc.,
391 F.3d 77, 83 (2d Cir. 2004). To defeat a motion for summary judgment, the
non-moving party must advance more than a "scintilla of evidence, "
Anderson, 477 U.S. at 252, and demonstrate more than "some metaphysical
doubt as to the material facts, " Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "cannot
defeat the motion by relying on the allegations in [its] pleading or on
conclusory statements, or on mere assertions that affidavits supporting the
motion are not credible." Gottlieb v. Cnty. of Orange, 84 F.3d 511,
518 (2d Cir. 1996) (citation omitted).
B. Title VII Liability
At the outset, the Court dismisses all Title VII claims brought
against Sergeant Polanco and Lieutenant Rivera in their individual capacities,
as individuals are not subject to liability under Title VII. See
Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (per curiam). The
Court also dismisses Plaintiff's Title VII claims against the two individual
Defendants in their official capacities, as the claims are duplicative of
Plaintiffs claims against the City. See, e.g., Yu v. N.Y. State Unified
Court Sys. Office of Court Admin., No. 11 Civ. 3226 (JMF), 2013 WL
3490780, at *4 (S.D.N.Y. July 12, 2013) ("[A] plaintiff may not bring a Title
VII claim against an individual in his or her official capacity if the claim is
duplicative of the claim against the public employer."); Emmons v. City
Univ. of N.Y. 715 F.Supp.2d 394, 410-11 (E.D.N.Y. 2010) (similar).
C. Section 1981 Liability
In addition, the Court dismisses all of Plaintiffs claims brought
under Section 1981. "The express cause of action for damages created by [42
U.S.C.] § 1983 constitutes the exclusive federal remedy for violation of the
rights guaranteed in § 1981 by state governmental units." Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 733 (1989). Some courts have held that
the Civil Rights Act of 1991 statutorily overruled Jett to create an
implied cause of action against state actors under Section 1981, see, e.g.,
Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204 (9th
Cir. 1996), but courts in the Second Circuit continue to follow the Supreme
Court's holding in Jett, see Gladwin v. Pozzi, 403 F.Appx.
603 (2d Cir. 2010) (summary order) ("[Plaintiffs] § 1981 claims are encompassed
by her § 1983 claims, and both are therefore analyzed under § 1983.");
Whaley v. City Univ. of N.Y., 555 F.Supp.2d 381, 401 (S.D.N.Y. 2008)
(collecting cases). The Second Circuit has not yet ruled on the issue in a
precedential holding, and so this Court continues to follow Jett. All of
Plaintiffs Section 1981 claims are therefore subsumed by the claims under
Section 1983, and must be dismissed.
D. Disparate Treatment Claims
The Court turns then to Plaintiff's discrimination claims.
Discrimination claims brought under Title VII, Section 1983, and the NYSHRL are
all evaluated under the burden-shifting framework established by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Annis
v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998) (Title VII and
Section 1983); Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n.1 (2d
Cir. 1999) (NYSHRL). The Second Circuit recently noted that "[i]t is unclear
whether, and to what extent, the McDonnell Douglas burden-shifting
analysis has been modified for NYCHRL claims." Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013). Typically,
however, "courts in the Second Circuit... appl[y] [the] liberal standards [of
the NYCHRL] to the basic McDonnell Douglas framework." Farzan v.
Wells Fargo Bank, N.A., No. 12 Civ. 1217 (RJS) (JLC), 2013 WL 6231615, at
*15 (S.D.N.Y. Dec. 2, 2013) (collecting cases).
Under that framework, a plaintiff must first make out a prima
facie case of discrimination. McDonnell Douglas, 411 U.S. at 802.
The elements required for a prima facie case for federal and state
claims differ slightly from the elements required for NYCHRL claims. For federal
and state claims, a plaintiff must show that: (1) he was a member of a protected
class; (2) he was competent to perform the job in question, or was performing
the job duties satisfactorily; (3) he suffered a materially adverse employment
action; and (4) the action occurred under circumstances that give rise to an
inference of discrimination. See, e.g., Spiegel, 604 F.3d at
80. The NYCHRL modifies the third prong of the prima facie case so that
the adverse action need not be "material." Instead, a plaintiff bringing a
NYCHRL claim must simply demonstrate differential treatment that is "more than
trivial, insubstantial, or petty." Id. ; see also Williams
v. Regus Mgmt. Grp., LLC, 836 F.Supp.2d 159, 173 (S.D.N.Y. 2011). Such a
plaintiff, however, must still adduce evidence supporting an inference of
discrimination. Williams, 836 F.Supp.2d at 177; see also
Kerman-Mastour v. Fin. Indus. Regulatory Auth., 814 F.Supp.2d 355, 367 (S.D.N.Y.
2011) ("[E]ven under the more liberal NYCHRL, summary judgment will still be
appropriate where a plaintiff does not adduce sufficient evidence of a link
between her termination and a discriminatory motive....").
If the plaintiff meets this initial burden, the burden then shifts to
the defendant "to articulate some legitimate, nondiscriminatory reason" for the
adverse action. McDonnell Douglas, 411 U.S. at 802. If the defendant
does so, then the burden then shifts back to the plaintiff to show "pretext, "
id. at 804-05, and, "to defeat summary judgment[, ]... the plaintiff's
admissible evidence must show circumstances that would be sufficient to permit a
rational finder of fact to infer that the defendant's employment decision was
more likely than not based in whole or in part on discrimination, '" Terry
v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Stern v. Trs.
of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)). The plaintiff must
produce "not simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, nondiscriminatory reasons proffered by the employer
were false, and that more likely than not discrimination was the real
reason" for the challenged actions. Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2d Cir. 1996) (internal quotation marks and alteration
omitted) (emphasis added). That is, "a reason cannot be proved to be a pretext
for discrimination' unless it is shown both that the reason was false,
and that discrimination was the real reason." St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993) (emphasis omitted).
Here, Defendants make a strong case that Plaintiff cannot satisfy the
third prong of either prima facie test (Defs.' Mem. 4-6; 19), but the
Court need not decide the issue because, even if he could satisfy all three of
the first prongs, he cannot satisfy the fourth.
Plaintiff himself acknowledged that he had never heard Sergeant Polanco or
Lieutenant Rivera make derogatory comments about Haitians or blacks. (Mashhadian
Jeune Dep. 92:9-14). Instead, he asserts that he was treated differently from
officers of other races. ( See Pl.'s Opp'n 7 (arguing that Plaintiff has
"made a case of... disparate treatment")). The only evidence he proffers in
support of that assertion, however, is his own conclusory testimony that
Sergeant Polanco "didn't... [treat] the white officers or the Latin officers" in
a similar fashion (Mashhadian Jeune Dep. 89:8-12), and that he "[didn't] think
she would" extend the hours of someone whose child was sick if the person was
"of her own race." ( Id. 91:11-15). But this testimony lacks the detail
necessary to support an inference of discrimination. See, e.g.,
Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999)
(affirming dismissal of race discrimination claim where plaintiff failed to
provide evidence about the work performed by allegedly "similarly situated"
employees); Sareen v. Port Auth. of N.Y. & N.J., No. 12 Civ. 2823 (PAE),
2013 WL 6588435, at *9 (S.D.N.Y. Dec. 16, 2013) (granting summary judgment where
plaintiff "[did] not offer any evidence on which to assess [the allegedly
similarly situated employee's] qualifications"). Plaintiff does not state who
these other officers were or provide any other information that would allow the
Court to determine whether they were similarly situated. (Mashhadian Jeune Dep.
Plaintiff cites specific examples of white officers who were allegedly
treated differently in only one instance - namely, officers who were granted
time off when their children were born. (Collyer Jeune Dep. 97:19-106:24). Even
so, Plaintiff fails to provide other critical information about these officers,
such as when they requested the time off, whether they followed proper protocol,
or whether the staffing considerations were similar to the staffing
considerations at the time that Plaintiff requested leave. At bottom, Plaintiff
conclusorily asserts that he was treated poorly because of his race and national
origin. That does not suffice to defeat summary judgment on any of Plaintiff's
disparate treatment claims. See, e.g., Baptiste v. Cushman &
Wakefield, No. 03 Civ. 2102 (RCC), 2007 WL 747796, at *7 (S.D.N.Y. Mar. 7,
2007) (granting motion for summary judgment of claims under Section 1981 and
Title VII where plaintiff failed to present any anecdotal evidence giving rise
to an inference of discrimination, but repeatedly expressed her belief that she
was discriminated against in deposition testimony); Forrest v. Jewish Guild
for the Blind, 3 N.Y.3d 295, 308 (2004) (affirming dismissal of NYCHRL
claims on summary judgment where plaintiff was "hard pressed at her deposition
to articulate any basis for her claim that defendants' unfair treatment... was
race-based, other than a repeated assertion - or assumption - that she was the
only one so treated"). Accordingly, Defendants' motion for summary judgment on
Plaintiff's disparate treatment claims is GRANTED.
E. Retaliation Claims
Next, the Court turns to Plaintiff's retaliation claims, which are
also analyzed under the McDonnell Douglas burden-shifting framework.
See, e.g., Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir.
2010). To establish a prima facie case of retaliation under the state
and federal laws, a plaintiff must show that (1) he engaged in a protected
activity; (2) his employer was aware of this activity; (3) the employer
subjected him to a materially adverse employment action; and (4) a causal
connection exists between the adverse action and the protected activity. Id.
In this context, "a materially adverse employment action is one that well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination." Donohue v. Finkelstein Mem'l Library, No. 12 Civ.
7218 (DLC), 2013 WL 6588637, at *7 (S.D.N.Y. Dec. 16, 2013). The elements of a
retaliation claim under the NYCHRL are identical, "except that the plaintiff
need not prove any adverse' employment action; instead, he must prove that
something happened that would be reasonably likely to deter a person from
engaging in protected activity." Leon v. Columbia Univ. Med. Ctr., No.
11 Civ. 8559 (NSR), 2013 WL 6669415, at *12 (S.D.N.Y. Dec. 17, 2013) (internal
quotation marks omitted).
In this case, Plaintiff advances two theories of retaliation. His
principal theory is that he was retaliated against for his participation in the
Rosenthal lawsuit. (Pl.'s Opp'n 9-11). Plaintiff argues that after Defendants
found out about his participation in that lawsuit, they "commenced a barrage of
retaliatory acts" - in essence, the same acts that he invoked in support of his
disparate treatment claims, including the denial of leave time. ( Id.
10-11). Plaintiff's second theory is that Sergeant Polanco retaliated against
him for filing the internal complaint with the NYPD OEEO by giving him low
ratings on his performance evaluations, writing negative remarks on his monthly
reviews, and depriving him of credit for two arrests from a crime scene that he
had investigated. (Pl.'s Opp'n 11-12; Mashhadian Jeune Dep. 107:1-12). The Court
addresses each theory in turn.
1. The Rosenthal Theory
Plaintiff's retaliation claims brought under the first theory fail, as
Plaintiff has failed to adduce evidence of a causal connection between his
participation in the Rosenthal lawsuit and any of the alleged retaliatory acts.
A plaintiff can demonstrate proof of a causal connection "either: (1)
indirectly, by showing that the protected activity was followed closely by
discriminatory treatment, or through other circumstantial evidence such as
disparate treatment of fellow employees who engaged in similar conduct; or (2)
directly, through evidence of retaliatory animus directed against the plaintiff
by the defendant." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111,
117 (2d Cir. 2000). Here, Plaintiff does not contend that there is any direct
evidence of retaliatory animus. The circumstantial evidence, however, is far too
tenuous to raise a genuine dispute of fact with respect to the existence of a
In particular, the only evidence that Plaintiff points to in support
of a causal connection between his participation in the Rosenthal lawsuit and
Defendants' allegedly retaliatory acts is the temporal relationship between the
two. (Pl.'s Opp'n 10 (stating that Defendants began to engage in retaliatory
behavior "[u]pon the discovery of Plaintiff's involvement in the Rosenthal
lawsuit")). Although the Second Circuit has declined to "draw a bright line to
define the outer limits beyond which a temporal relationship is too attenuated
to establish a [causal connection], " Espinal v. Goord, 558 F.3d 119,
129 (2d Cir. 2009) (internal quotation marks omitted), district courts within
the Circuit "have consistently held that the passage of two to three months
between the protected activity and the adverse employment action does not allow
for an inference of causation, " Murray v. Visiting Nurse Servs. of N.
528 F.Supp.2d 257, 275 (S.D.N.Y. 2007) (collecting cases). Here, the gap was
considerably longer: The only adverse action for which Plaintiff provides a
specific date is the denial of his leave time, which occurred in March 2011 (Collyer
Decl., Ex. D; Mashhadian Jeune Dep. 86:4-87:4), fourteen months after he
was named as a witness in the Rosenthal lawsuit (Pl.'s Rule 56.1 Statement ¶
21). Although such a gap does not
preclude a plaintiff from establishing a causal connection through other
evidence, it is plainly insufficient on its own. See, e.g., Murray,
528 F.Supp.2d at 274-76 (finding insufficient evidence of a causal connection
where about seven months had passed between the protected activity and adverse
action, and plaintiff offered no other circumstantial evidence of connection).
Accordingly, Defendants' motion for summary judgment on Plaintiff's retaliation
claims under this theory is GRANTED.
2. OEEO Complaint Theory
Plaintiff's retaliation claims under the second theory, however,
survive as to Sergeant Polanco and the City. As noted, Plaintiff contends that
Sergeant Polanco retaliated against him for filing the internal OEEO complaint
by giving him low performance evaluations, writing negative remarks about him on
monthly reports, and depriving him of arrests that he had investigated. (Pl.'s
Opp'n 11-12). Defendants' sole response is to point out that Plaintiff's
performance evaluations actually improved after he filed the internal complaint.
(Defs.' Reply Mem. Further Supp. Mot. Summ. J. ("Defs.' Reply") 7). That may be
true, but it is no answer to Plaintiff's contention that Sergeant Polanco also
retaliated against him for filing the OEEO complaint by reassigning two arrests
for which he should have received credit to another officer for no apparent
reason. (50-h Hearing 63:6-64:23).
That evidence is sufficient to establish a prima facie case.
The filing of an internal complaint against Defendants is plainly a protected
activity, see, e.g., Raniola v. Bratton, 243 F.3d 610, 624
(2d Cir. 2001), and there is no dispute that Sergeant Polanco was aware of the
complaint. In addition, although the issue is a close one, the Court finds that
a reasonable jury could conclude that Sergeant Polanco's alleged action "might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination, " Donohue, 2013 WL 6588637, at *7 (internal quotation
marks omitted), and "would be reasonably likely to deter a person from engaging
in protected activity, " Leon, 2013 WL 6669415, at *12 (internal
quotation marks omitted), as Plaintiff testified that credit for arrests are
"good for [his] record" and presumably might factor into matters such as
promotion (50-h Hearing 64:14-16). See also Brightman v. Prison
Health Serv., 970 N.Y.S.2d 789, 791 (2d Dep't 2013) ("In assessing
retaliation claims that involve neither ultimate actions nor materially adverse
changes in terms and conditions of employment, it is important that the
assessment be made with a keen sense of workplace realities... and of the fact
that a jury is generally best suited to evaluate the impact of retaliatory
conduct in light of those realities." (internal quotation marks omitted)).
Finally, the timing of Sergeant Polanco's alleged retaliation supports
a causal connection, as the incident at issue took place in March or April 2011
( id. 64:21-23) - either the same month that Plaintiff filed the OEEO
complaint or one month after. (Mashhadian Jeune Dep. 107:1-23). See
Roberts v. Phillip Morris Mgmt. Corp., 733 N.Y.S.2d 190, 191 (1st Dep't
2001) ("[T]emporal proximity may suffice to satisfy plaintiff's prima facie
burden to show a causal connection between [the] filing of the complaint and
[the adverse action]...."). As Defendants have offered no explanation for
Sergeant Polanco's alleged behavior that would shift the burden back to
Plaintiff, summary judgment on this retaliation theory must be DENIED with
respect to Sergeant Polanco. It is also DENIED with respect to the City under a
theory of vicarious liability. See, e.g., Meyer v. Holley,
537 U.S. 280, 285 (2003). It is, however, GRANTED with respect to Lieutenant
Rivera, as Plaintiff offers no evidence suggesting that the Lieutenant was
involved in depriving him of credit for any arrests.
F. Hostile Work Environment Claims
Next, the Court turns to Plaintiffs hostile work environment claims.
Under state and federal law, a plaintiff must establish that his workplace was
"permeated with discriminatory intimidation, ridicule, and insult that [was]
sufficiently severe or pervasive to alter the conditions of... employment and
create an abusive working environment." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotation marks omitted); see also
Patterson v. Cnty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004);
Forrest, 3 N.Y.3d at 305, 310-11 (2004) (NYSHRL). In addition, a plaintiff
must demonstrate that the hostile work environment "was caused by animus
toward [him] as a result of [his] membership in a protected class."
Bermudez v. City of New York, 783 F.Supp.2d 560, 578 (S.D.N.Y. 2011)
(internal quotation marks omitted). "An environment that... arises from personal
animosity is not actionable under the civil rights statutes." Id.
(internal quotation marks omitted). Under the NYCHRL, the standard is lower; in
particular, severity and pervasiveness are relevant only to damages, but not to
liability. See id. ; see also Acosta v. City of New York,
No. 11 Civ. 856 (KBF), 2012 WL 1506954, at *8 (S.D.N.Y. Apr. 26, 2012). To
survive summary judgment on a NYCHRL hostile work environment claim, however, a
plaintiff must adduce evidence of "unequal treatment based upon membership in a
protected class." Acosta, 2012 WL 1506954, at *8 (internal quotation
marks omitted); see also Williams v. N.Y.C. Hous. Auth., 872
N.Y.S.2d 27, 38-39 (1st Dep't 2009).
Like his disparate treatment claims, Plaintiff's hostile work
environment claims fail because he does not make any showing that the actions
purportedly creating a hostile work environment related to his race or national
origin. Plaintiff was allegedly yelled at, threatened with disciplinary action
and monitoring, removed from his regular partner, assigned to undesirable posts,
and received negative performance evaluations. (Pl.'s Opp'n 13-14). But
Plaintiff admits that none of Defendants' comments toward him concerned his race
or national origin (Mashhadian Jeune Dep. 92:9-14), and, as explained in the
context of Plaintiff's discrimination claims, he provides no evidence that would
allow the Court to conclude that any differential treatment he received was on
account of his race or national origin. Thus, Plaintiff fails to demonstrate the
causal connection between his race or national origin and the allegedly hostile
actions required by the federal, state, and local statutes. See, e.g.,
Forts v. N.Y.C. Dep't of Corr., No. 00 Civ. 1716 (LTS) 2003 WL 21279439,
at *6 (S.D.N.Y. June 4, 2003) (granting defendant's summary judgment motion on
hostile work environment claims brought under federal, state, and local laws
where alleged hostile incidents "[did] not objectively indicate that the work
environment was... discriminatory"). Accordingly, Defendant's motion for summary
judgment on the hostile work environment claims is GRANTED.
G. State Tort Claims
Finally, Plaintiff brings state tort claims for intentional infliction
of emotional distress, negligent hiring, negligent supervision, and negligent
retention. (Compl. ¶¶ 72-97). Defendant moves for summary judgment on all four
of these claims, but Plaintiff only addresses Defendants' arguments regarding
the intentional infliction of emotional distress claim. ( Compare Defs.'
Mem. 21-23 with Pl.'s Opp'n 19-20). Accordingly, all of Plaintiff's tort
claims other than the claim for intentional infliction of emotional distress are
deemed abandoned and dismissed. See, e.g., Rockland Exposition,
Inc. v. Alliance of Auto. Serv. Providers of N.J., 894 F.Supp.2d 288, 331
(S.D.N.Y. 2012) (collecting cases supporting the proposition that "[f]ederal
courts may deem a claim abandoned when a party moves for summary judgment on one
ground and the party opposing summary judgment fails to address the argument in
any way" (internal quotation marks omitted)).
As for the intentional infliction of emotional distress claim,
Plaintiff appears to ground the claim on the denial of leave time, as well as
the general manner in which Sergeant Polanco allegedly treated him. (Pl.'s Opp'n
20). But, the hyperbole in Plaintiff's Memorandum of Law aside, Sergeant
Polanco's behavior falls far short of being "extreme and outrageous, " as
required to establish an intentional infliction of emotional distress claim
under New York law. Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115,
121 (1993). Although this standard is "flexib[le]" and "does not proscribe
specific conduct, " id. at 122, a defendant's conduct must be "so
outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community." Id. Here, there is simply no factual basis upon
which a reasonable juror could conclude that Polanco's behavior meets this
The denial of time off to care for one's family may certainly be
upsetting, but it is not extreme or outrageous, particularly where one receives
vacation time at other points during the year. (Collyer Jame Dep. 84:20-85:2;
see also Collyer Decl., Ex. G). In addition, any verbal insults Sergeant
Polanco directed at Plaintiff fail because the challenged conduct "must consist
of more than mere insults, indignities and annoyances." 164 Mulberry Street
Corp. v. Columbia Univ., 771 N.Y.S.2d 16, 22 (1st Dep't 2004). Even if the
verbal insults had been racially or ethnically charged - and Plaintiff admits
they were not - they would not be sufficiently extreme or outrageous. See,
e.g., Leibowitz v. Bank Leumi Trust Co. of N.Y., 548 N.Y.S.2d
513, 521 (2d Dep't 1989). In fact, Plaintiff provides no evidence as to what
Polanco actually said when she yelled at him, or how frequently this behavior
occurred. Courts in New York have noted that intentional infliction of emotional
distress claims "typically fail because the challenged conduct is not
sufficiently outrageous, " 164 Mulberry Street, 771 N.Y.S.2d at 22;
see also Howell, 81 N.Y.2d at 122, and this claim is no
different. As such, Defendants'
motion for summary judgment on the emotional distress claim is GRANTED.
For the reasons stated above, Defendants' motion for summary judgment
is GRANTED, except with respect to Plaintiff's retaliation claims based on his
filing of the OEEO complaint against (a) Sergeant Polanco, excluding those
claims brought under Section 1981 and Title VII; and (b) the City, excluding
those claims brought under Section 1981.
The parties are reminded that their Joint Pretrial Order and all
related filings required by the Court's Individual Rules and Practices for Civil
Cases must be submitted within thirty days and that they should be prepared to
go to trial approximately two weeks thereafter. (Docket No. 17). The parties
shall immediately advise the Court by joint letter if they are interested in a
referral to the assigned Magistrate Judge for purposes of settlement.
The Clerk of Court is directed to terminate Docket No. 26 and to
terminate Lieutenant Rivera as a Defendant in this action.