United States District Court, E.D. New York
SHAHIN Y. MASHHADIAN, ESQ., Cronin & Byczek, LLP, Lake Success, NY, for the Plaintiff.
KATHRYN E. LEONE, ESQ., Assistant Corporation Counsel, New York City Law Department, New York, NY, for the Defendants.
MEMORANDUM AND ORDER
FREDERIC BLOCK, Senior District Judge.
Plaintiff, Thomas Zane ("Zane"), asserts claims of employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"); 42 U.S.C. §§ 1983 and 1981; the First and Fourteenth Amendments of the United States Constitution; New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 ("NYSHRL"); and New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-703 ("NYCHRL").
Zane, a lieutenant in a unit of the city Sheriff's Office, alleges that defendants discriminatorily retaliated against him and subjected him to a hostile work environment because he spoke out to defend a co-worker from race and gender discrimination and made repeated requests to arm his unit with tasers. The taser requests are also the basis for his First Amendment claim. Zane also alleges that he was subject to retaliation because he was an outspoken union member. He relies on the same incidents to support his equal protection claim.
The following undisputed facts are taken from the parties' Rule 56.1 statements, depositions and the record evidence.
Zane is a former Lieutenant who worked in the Sheriff's Office of New York City, starting in 1987. He became Lieutenant after a promotion from Deputy Sheriff in September 1994. Approximately ten years ago, Zane joined, and was involved in creating, Kendra's Unit as a division of the Sheriff's Office. Kendra's Unit conducts "removals" - a process of apprehending mentally ill individuals who have been non-compliant with their outpatient treatment regimens and bringing them to psychiatric hospitals for evaluations.
Although the Sheriff's Office is a division of the New York City Department of Finance ("DOF"), Kendra's Unit is funded by the New York City Department of Health and Mental Hygiene ("DHMH"). There is a Memorandum of Understanding between the DOF and the DHMH that sets forth the budget for Kendra's Unit and specifies the number of staff by rank, including: one lieutenant, one sergeant, and six deputy sheriffs. The Memorandum of Understanding also includes an overtime allotment for the unit.
When Kendra's Unit dispatches a team to perform a removal, the team is staffed with a sergeant or lieutenant and includes as many deputy sheriffs that are available, preferably four or five. A mental health clinician accompanies the team. As is the case with all uniformed Sheriff's Office members, those on Kendra's Unit teams carry pepper spray, a firearm, and an ASP baton. Over ten years, the plaintiff had to brandish his firearm once and never used the ASP baton; and throughout that same period, members of Kendra's Unit as a whole needed to use pepper spray on only four or five occasions. None of the uniformed personnel in the Sheriff's Office carries a taser. Kendra's Unit team members also carry handcuffs, ankle restraints, and leg shackles. Physical restraints, however, are not always necessary, and ninety percent of patients are compliant during removals. Over the years, plaintiff made repeated requests to have tasers issued to Kendra's Unit in addition to the other weapons and physical restraints the team carried; these requests were denied both informally and via formal memoranda.
In June and July 2008, plaintiff made multiple requests to recognize various members of Kendra's Unit with Exceptional Merit Medals. Later in 2008, Zane's direct supervisor, Chief Thomas Doyle, gave a unit citation to Kendra's Unit for excellence and recognized its members with a Unit Citation Breast Bar for their work on a particular case. Zane accepted the unit citation on behalf of the team.
On April 23, 2009, Zane requested that all the deputy sheriffs in Kendra's Unit be promoted to Level II, the rank equal to Sergeant. Zane's direct supervisor was Undersheriff Thomas Doyle ("Doyle"). Doyle forwarded the request to his supervisor, defendant Timothy LaRose ("LaRose"), the Chief of Operations, giving it his apparent support. Despite that initial support, Doyle formally denied Zane's request on April 30, 2009, in a memorandum that cited budgetary constraints and explained that not every member of a unit could become a supervisor, which would result if the deputy sheriffs were promoted to sergeant level.
Four months later, on August 31, 2009, following a review of work activity in his departments, LaRose wrote to Doyle asking for details of how Kendra's Unit members spent their administrative time at the base when they were not out doing field work. He asked Doyle for details and logs of future time.
The following month, on September 4, 2009, a Kendra's Unit staff meeting was held with the plaintiff in attendance along with Doyle, LaRose, and another Lieutenant, Sylvia Bowen ("Bowen"). LaRose's supervisor, First Deputy Sheriff Oliver Pu-Folkes ("Pu-Folkes"), attended as well as Pu-Folkes's supervisor, Sheriff Lindsay Eason ("Eason") and Dr. Monica Medina ("Dr. Medina"), who oversaw the clinicians who accompanied the field teams.
During the meeting, Zane objected when discussion occurred about requiring Bowen to go into the field. Even though field work was part of the lieutenant job description, Zane objected for multiple reasons, including Bowen's age (she was approximately 50 years old), gender, and because the lieutenant job was primarily administrative. Zane was advised that age cannot be a factor in considering whether an employee is fit for assignment to field work. Following the meeting, Zane had a separate discussion with Eason and Pu-Folkes where he told them that making Bowen perform field work was "wrong, that she was a female and she was black, this is going to cause problems for you." Zane Dep., Ex. B, at 57. He shared his belief that "it would result in some kind of EEO issue... by Lt. Bowen." Id. at 115-116. Zane testified that he knew these problems were coming "before Lieutenant Bowen knew it." Id. at 57.
Although it is unclear whether there was any discussion about uniforms at the meeting, the parties agree that Doyle communicated via e-mail on September 18, 2009, a new policy requiring that "all uniformed personnel must be in uniform within five minutes after the start of when they begin their tour." Defs.' Decl., Ex. G. On September 21, 2009, Zane replied to Doyle's message and urged reconsideration of the decision to implement the new policy. Zane also carbon copied other employees, including his subordinates, on his reply, indicating that it "serves no purpose" and asking if it was for "punitive reasons." Id. On October 1, 2009, Doyle issued a counseling letter to Zane. Doyle acknowledged that the plaintiff may not have understood that the policy applied to all members of the Sheriff's Office, and not exclusively to Kendra's Unit, and he instructed Zane to "recognize that in the future you should not use e-mail in this manner to criticize a superior's decision." Defs.' Decl., Ex. H.
On October 27, 2009, Zane received another counseling letter, which explained that, in reference to the September 4 discussion about assigning field work to employees, age cannot be a factor because doing so "would be a violation of equality laws." Defs.' Decl., Ex. J. Doyle also encouraged Zane to speak to him, to the DOF Equal Employment Opportunity ("EEO") Officer, or to the EEO Attorney for any questions or additional support. See id.
On January 13, 2010, the Commissioner of the DOF, defendant David M. Frankel ("Frankel"), issued a memorandum to all DOF employees regarding performance evaluations. Frankel advised the department that he expected "only a small percentage of Finance employees will receive the top evaluation ratings, " because, going forward, the department needed to improve its evaluations to ensure that managers and employees receive constructive feedback. Mem. From David M. Frankel to All Finance Employees, Defs.' Decl., Ex. P. Frankel's memorandum was designed to stop the practice where DOF employees "were routinely given the highest evaluation ratings simply for doing their job." Id. Later that year, Zane rated 100% of his subordinates as "outstanding" - the highest possible rating - and LaRose asked Doyle to have Zane re-do the evaluations. Zane refused. On September 13, 2010, both Doyle and Zane received a memorandum from LaRose documenting their failure to have Zane's performance evaluations adjusted to comply with Frankel's directive.
In December of 2011, Zane was among six applicants for a position as Undersheriff. Interviews with staff at the Sheriff's Office and the DOF were scored, and the top three scorers moved on to the next round of the application process. Zane was not among the top three scorers and was not promoted to the position.
On January 23, 2012, Zane was transferred from Kendra's Unit (based in Long Island City, Queens), to the Kings County Office of the Sheriff's Office. Zane did not request the transfer, but was told that he was the "only lieutenant who could handle Brooklyn because Brooklyn is messed up." Zane Dep., Defs.' Decl., Ex. B, at 45. This was not the first transfer, nor was it Zane's first involuntary transfer. As he testified in his deposition:
ZANE: I was in the Bronx as a lieutenant yes, and I was probably back to Scoff at some point, I jumped around a little and I have been transferred a lot.
Q: Did you request to be transferred, how do the ...