United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, District Judge.
Plaintiff Claude Staten ("Plaintiff"), appearing pro se, brings this action pursuant to 42 U.S.C. §§ 1981 and 1983 ("Section 1981" and "Section 1983"), the New York State Human Rights Law, New York Executive Law §§ 290, et seq. ("NYSHRL"), and the New York City Human Rights Law, New York City Administrative Code §§ 8-101, et seq. ("NYCHRL"), alleging that the City of New York (the "City" or "Defendant") violated his civil rights. Compl., Doc. 1. Plaintiff is a Black-Hispanic police officer who has been employed by the New York City Police Department ("N.Y.P.D.") for more than two decades. Plaintiff claims, inter alia, that on account of his race, the N.Y.P.D. has failed to promote him or grant him any awards, even though he deserves "department recognition." See Compl.; Pl.'s Opp. 3, 7, 10, Doc. 33.
Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Doc. 24. For the reasons discussed below, Defendant's motion is GRANTED.
I. Factual Background
The following facts are undisputed except where otherwise noted.
Plaintiff self-identifies as Black-Hispanic. Def.'s R. 56.1 Stmt. ¶ 2, Doc. 25. He began working for the N.Y.P.D. in December 1986. Id. ¶ 3.
Following an internal investigation, on July 13, 1990, the N.Y.P.D. substantiated an allegation that Plaintiff assaulted his common law wife. Id. ¶ 6. Plaintiff does not deny that the N.Y.P.D. made this finding against him, but rather, asserts that the common law wife in question,  Charmain Russell, was to blame; he characterizes her as "extremely violent" and "dishonest, " and states that she "would often call the police to give the impression that she was a battered woman." Pl.'s Opp. 5. He also notes that his own son, Claude A. Staten, Jr., "exhibits these same type [sic] of violent traits that his mother Charmain Russell possesses." Id.
On August 21, 1991, the N.Y.P.D. partially substantiated an allegation that, during a trip to the emergency room to treat wounds that he suffered on the job, Plaintiff "exercised poor judgment" by pulling out his weapon and chasing a suspect around the emergency room. Def.'s 56.1 Stmt. ¶ 8. In his Opposition, Plaintiff describes the incident unfolding as follows: he encountered the suspect during an attempted robbery and felony assault, then the suspect struck him in the face with a metal pipe and fled the scene, necessitating the emergency room visit. Pl.'s Opp. 6. While at the emergency room, Plaintiff spotted the suspect: "not knowing whether the suspect was still armed with a weapon, " and because the suspect had "displayed that he [was] both a criminal and violent, " Plaintiff "drew [his] handgun to prevent further assault, " pursued the fleeing suspect and effected an arrest. Id. Plaintiff notes that he effected the arrest in the emergency room without causing anyone additional injury, thus claims that he "qualified for, and should have received, department recognition" for this conduct, rather than reprimand. Id. at 7.
On March 19, 1992, the N.Y.P.D. served Plaintiff with disciplinary charges for having been absent from his residence "without the permission of the district surgeon and for having failed to notify his Commanding Officer of his change in Name/Residence/Social Condition." Def.'s 56.1 Stmt. ¶ 9. In connection with those charges, Plaintiff agreed to forfeit ten vacation days as part of a negotiated settlement. Id. ¶ 10.
The N.Y.P.D. designates an officer "Chronic Sick - A" if he reports sick for any reason, except an initial line of duty absence or hospitalization, on four or more occasions in a twelve-month period. Id. ¶ 5. Between December 9, 1989 and July 27, 2002, Plaintiff received numerous citations for "excessive sick days." Id. ¶¶ 4, 7-29. Richard D. Gubitosi ("Gubitosi"), Commanding Officer of the N.Y.P.D.'s Performance Analysis Section, submitted a declaration attesting that, between his appointment in December 1986 and April 2011, Plaintiff reported sick 111 times, for a total of 561 days. Gubitosi Decl. ¶ 27, Doc. 27. Plaintiff does not appear to contest these facts, but claims that he "has not been designated chronic sick" since July 27, 2002. Pl.'s Opp. 4.
Additionally, N.Y.P.D. Officers may be placed on "performance monitoring" based on their employment histories, ranging from Level I (the lowest) to Level III (the highest). Def.'s 56.1 Stmt. ¶ 34. Officers placed on Level II or Level III monitoring may not be promoted without first appearing before the Career Advancement Review Board ("CARB"), which consists of a panel of N.Y.P.D. Chiefs tasked with assessing the merit of their application for promotion. Id. ¶ 35. Due to the fact that he received three civilian complaints over the course of a year, Plaintiff was placed on Level I monitoring effective February 23, 2007. Id. ¶ 36. Less than two months later, Deputy Inspector Donna G. Jones made a determination that Plaintiff persisted in engaging in "troubling behavior, " and thus placed him on Level II monitoring effective March 5, 2007. Id. ¶¶ 38-39. In a letter dated March 5, 2007, the N.Y.P.D. informed Plaintiff that "continued accrual of force complaints or negative performance according to Police Department standards... may have a negative effect on [your] career potential." Id. ¶ 40.
During Level II monitoring, Plaintiff was served with departmental charges in 2007 for failing to register two firearms with the N.Y.P.D., as required by regulations, as well as charges in 2009 and 2010 for "failing to report that he had filed a complaint of aggravated harassment, " failing to "properly turn in summonses [or]... secure his department locker, " and failing to timely report to traffic court. Id. ¶¶ 41-43. As part of a negotiated settlement, Plaintiff pleaded guilty to all of the departmental charges filed against him from 2007 to 2010 and forfeited thirty-five vacation days. Id. ¶ 44. He nonetheless claims that, with respect to the charges concerning his locker and the summonses, another officer, James Lisa, was to blame; according to Plaintiff, an investigation revealed that the lock securing his locker was not defective, and that he secured his locker properly; Officer Lisa improperly removed the summonses from Plaintiff's locker despite Plaintiff's efforts. Pl.'s Opp. 8-9.
Because of the Level II monitoring, Plaintiff was required to appear before CARB prior to receiving a promotion. Def.'s 56.1 Stmt. ¶ 49. Plaintiff's commanding officers and supervisors consistently recommended that he not be promoted based upon his "terrible" sick record ( id. ¶ 52), lack of ability to inspire others to work ( id. ¶ 54), "poor disciplinary history, excessive sick record and the lack of performance activity" ( id. ¶ 55), his failure to "take any responsibility for [his] past disciplinary issues" ( id. ¶ 59), and "luke warm" recommendations from his own precinct ( id. ¶ 61), including a notation that he made "little contribution" to his own precinct ( id. ). Nor does Plaintiff appear to contest the fact that he averaged only seven arrests per year between December 1986 and April 2011. Id. ¶ 46. Defendant has submitted evidence that, on April 14, 2011 and January 17, 2012, Plaintiff appeared before CARB to determine his suitability for promotion to Sergeant. Id. ¶¶ 50-51, 58, 62. On both occasions, CARB "voted unanimously not to promote Plaintiff" ( id. ), and former Police Commissioner Raymond W. Kelly approved the First Deputy Commissioner's recommendations not to promote Plaintiff. Id. ¶¶ 57, 63.
Plaintiff asserts that the City has violated his civil rights because even though he took, and passed, the examination for promotion to the rank of Sergeant (the "Sergeant Exam") numerous times, the N.Y.P.D. has never promoted him during the last twenty-one years. Pl.'s Opp. 2-3. At his deposition, Plaintiff testified that he could "only fathom and guess" what "the exact bias is" against him, "[b]ut [he] know[s] that it's bias" because the N.Y.P.D. "[is] looking to destroy me." Clark Decl. Ex. H (Staten Dep. 87:1-87:25), Doc. 28. Staten testified that because "nothing [he's] done within [his] job description, or... off-duty... would prevent [him] from being promoted, " then "obviously something biased [sic]" is responsible for the N.Y.P.D.'s failure to promote ...