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Petty v. City of New York

United States District Court, S.D. New York

November 25, 2014

DARREN LAWRENCE PETTY, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

Plaintiff Darren Lawrence Petty tried repeatedly, over a period of years, to secure employment with the City of New York as a police officer or correction officer. In his first few applications, Petty acknowledged that he had been arrested on more than one occasion; he was disqualified in each instance after psychological examinations indicated that he was unsuited to be a police officer. Petty then changed tack, omitting reference in subsequent applications to his prior arrests and his prior unsuccessful applications; these efforts, too, failed for various reasons. Petty then brought a lawsuit against Defendants, the City of New York and several of its employees and municipal agencies, claiming discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"); the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 to 12117 (the "ADA"); the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (the "NYSHRL"); and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 8-131 (the "NYCHRL"). Defendants have moved for summary judgment on all of Plaintiff's claims. For the reasons set forth below, Defendants' motion is granted in its entirety.

BACKGROUND[1]

Plaintiff sought employment with the City of New York (the "City") beginning in 2003. He first sought employment as a police officer with the City's Police Department (the "NYPD"); he subsequently sought employment as a correction officer with the City's Department of Correction (the "DOC"). (Def. 56.1 ¶ 1). In connection with his applications, Plaintiff passed several civil service examinations for the positions of police officer and correction officer. ( Id. at ¶ 2). Because he passed these exams, Plaintiff was placed on civil service "eligible lists" and was permitted to participate in further stages of the application process. ( Id. ). Plaintiff's efforts in securing these jobs were ultimately unsuccessful. ( Id. at ¶¶ 13, 30, 46, 99).

Because establishing a complete timeline of the allegedly discriminatory conduct is critical to the instant motion, the Court will address each of Plaintiff's NYPD and DOC applications in detail.

A. The NYPD Applications

1. Plaintiff's 2003 Application

Plaintiff first applied to the NYPD in 2003. (Def. 56.1 ¶¶ 6-7). He participated in every aspect of the application process, including the medical exam, psychological exam, agility test, and background investigation. ( Id. at ¶ 6). Plaintiff took the psychological written test on February 10, 2003, and was interviewed by a psychologist on February 13, 2003. ( Id. at ¶ 7). As part of the written psychological test, Plaintiff completed a Biographical Data Sheet. (Def. 56.1 ¶ 8; Switzer Decl., Ex. E). In response to one of the questions on the Biographical Data Sheet, Plaintiff indicated that he had been arrested twice - once for possession and sale of narcotics, and once for assault. (Def. 56.1 ¶¶ 8-9). Plaintiff also indicated that the charges in both cases had been dismissed. ( Id. at ¶ 9).

Following Plaintiff's psychological exam, the interviewing psychologist rejected Plaintiff as psychologically unsuited for police officer work. (Def. 56.1 ¶ 11). A supervising psychologist sustained the interviewing psychologist's decision to reject plaintiff as psychologically unsuited for police officer work after reviewing Plaintiff's record. ( Id. at ¶ 12). On August 12, 2003, the NYPD sent Plaintiff a letter by certified mail, with return receipt requested, informing Plaintiff that he had not met the requirements for the position of police officer and had been disqualified based upon his psychological tests and interview. ( Id. at ¶ 13; Switzer Decl., Ex. G).[2] The letter also included instructions on how to appeal this determination. (Def. 56.1 ¶ 16). Although the disqualification letter was sent to the address Plaintiff had listed on his NYPD application form, it could not be delivered to the Plaintiff and was instead returned to the NYPD as "unclaimed" mail. (Def. 56.1 ¶¶ 14, 17; Switzer Decl., Ex. E, G).

2. Plaintiff's 2005 Application

Plaintiff next applied to the NYPD in 2005. (Def. 56.1 ¶ 23). Plaintiff took the psychological written test on January 11, 2005, and was interviewed the same day. ( Id. ). As part of the written test, Plaintiff again completed a Biographical Data Sheet. (Def. 56.1 ¶ 23; Switzer Decl., Ex. I). Plaintiff disclosed his two arrests and noted that the charges in both cases had been dismissed. (Def. 56.1 ¶¶ 24-25).

As in 2003, the NYPD found Plaintiff psychologically unsuited to be a police officer. (Def. 56.1 ¶¶ 28-29). On November 30, 2005, the NYPD sent Plaintiff a letter by certified mail, with return receipt requested, informing Plaintiff that he had not met the requirements for the position of police officer and had been disqualified based upon his psychological tests and interview. ( Id. at ¶ 30; Switzer Decl., Ex. K).[3] The letter also included instructions on how to appeal this determination. (Def. 56.1 ¶ 33). Once again, although the disqualification letter was sent to the address Plaintiff had listed on his NYPD application form - an address different than that listed on his 2003 application - it was returned to the NYPD as "unclaimed" mail. (Def. 56.1 ¶¶ 31, 34; Switzer Decl., Ex. I, K).

3. Plaintiff's 2006 Application

Plaintiff applied to the NYPD for the third time in 2006. (Def. 56.1 ¶ 36). Plaintiff took the psychological written test on January 20, 2006, and was interviewed by a psychologist on January 23, 2006. ( Id. at ¶ 38). Plaintiff again completed the Biographical Data Sheet that he had filled out in connection with his two previous applications. (Switzer Decl., Ex. M). In a marked departure from his two previous applications, however, Plaintiff indicated on the form that he had no arrest history and provided none of the details regarding the two arrests that he had included on his previous submissions. (Def. 56.1 ¶¶ 39-40; Switzer Decl., Ex. M). Additionally, Plaintiff indicated on the form that he had not previously applied for employment with the NYPD. ( See Def. 56.1 ¶ 41).

Plaintiff's interview with the NYPD psychologist was, according to Plaintiff, more akin to an interrogation than an interview. ( See Petty Dep. 170-71). The psychologist informed Plaintiff during the interview that he was aware that Plaintiff had been arrested, and then told Plaintiff to leave. ( Id. at 170 ("[T]he third one was a psychologist that didn't even finish the interview. He told me that I was arrested and he knew it and to get out.")). Plaintiff further testified that the psychologist was biased against Plaintiff because he had been arrested. ( Id. at 171; see also id. at 190 ("The fact of the matter was that [the NYPD] utilized the arrests to not hire me.")).

Following this meeting, the interviewing psychologist determined that Plaintiff was psychologically unsuited for police officer work. (Def. 56.1 ¶¶ 44-45). This decision was sustained by a supervising psychologist. ( Id. ). On April 27, 2006, the NYPD sent Plaintiff a letter by certified mail, with return receipt requested, informing Plaintiff that he had not met the requirements for the position of police officer and was disqualified based upon his psychological tests and interview. ( Id. at ¶ 46; Switzer Decl., Ex. O).[4] The letter also included instructions on how to appeal this determination. (Def. 56.1 ¶ 49). Again, although the disqualification letter was sent to the address Plaintiff had listed on his NYPD application form - the same address Plaintiff listed on his 2005 application - it could not be delivered by the Postal Service to that address and was returned to the NYPD as "unclaimed" mail. (Def. 56.1 ¶¶ 47, 50; Switzer Decl., Ex. M, O).

On August 20, 2009, more than three years later, Plaintiff filed an administrative complaint with the New York State Division of Human Rights (the "SDHR") against the NYPD, alleging discrimination on the basis of his arrest record. (Def. 56.1 ¶ 100; Switzer Decl., Ex. EE (the "NYPD Complaint")). Significantly, for purposes of the present motion, the NYPD Complaint contained no allegations that the NYPD had discriminated against Plaintiff based on his "color, " "disability/perceived disability/past disability, " or "race." (Def. 56.1 ¶ 100; Switzer Decl., Ex. EE; Petty Dep. 168, 171-72).

B. The DOC Application

1. Plaintiff's Medical Disqualification

Shortly after submitting his third NYPD application, Plaintiff began the process of applying to the DOC in the hope of becoming a correction officer with the City. ( See Def. 56.1 ¶ 58).[5] On March 29, 2006, Plaintiff attended an orientation session for correction officer candidates and filled out a DOC Screening Sheet - a questionnaire similar to the Biographical Data Sheet Plaintiff had completed in connection with his NYPD applications. ( See id. at ¶¶ 58-59; Switzer Decl., Ex. P). In response to a question about prior arrests, Plaintiff indicated - consistent with his approach on the January 2006 NYPD application - that he had never been arrested. ( See id. at ¶¶ 59-60; Switzer Decl., Ex. P).

On April 6, 2006, Plaintiff appeared for a medical exam in connection with his DOC application. (Def. 56.1 ¶¶ 61-62). Shortly thereafter, on April 19, 2006, Plaintiff was placed on medical review for "cardiac" reasons and scheduled to return on May 11, 2006, for further tests. ( Id. at ¶ 64; Switzer Decl., Ex. S). The upshot of this determination was that Plaintiff's application was held in abeyance pending his appearance for further medical evaluation. ( See Switzer Decl., Ex. S).[6] On June 25, 2007 (over a year later), the DOC sent Plaintiff a letter by regular mail regarding his application status. (Def. 56.1 ¶ 67; Switzer Decl., Ex. T, U).[7] The letter informed Plaintiff that he had been placed on medical review in April 2006, and had been scheduled to return for further evaluation in May 2006. (Def. 56.1 ¶ 66). The letter instructed Plaintiff to obtain clearance from a cardiologist within 14 days of receipt of the letter. ( Id. ). The DOC attempted to mail this letter to Plaintiff at the address listed on his DOC application - the same address listed on Plaintiff's 2005 and 2006 NYPD applications - but it was returned to the DOC as undeliverable. (Def. 56.1 ¶¶ 63, 68).

On December 19, 2007, the DOC sent the Department of Citywide Administrative Services ("DCAS") a letter by regular mail indicating that Plaintiff had failed to pursue his application to the DOC because he had not submitted the requisite medical information. (Def. 56.1 ¶ 69; Switzer Decl., Ex. U, V).[8] A copy of the letter was mailed to Plaintiff at the address listed on his DOC application, and was returned to the DOC as undeliverable. ( See Def. 56.1 ¶ 70; Switzer Decl., Ex. U). Subsequently, Plaintiff was removed from the civil service eligible list for failure to comply with the DOC's request for medical documentation, effectively terminating his application to the DOC. ( See Def. 56.1 ¶¶ 69, 71).

2. Plaintiff's 2009 Renewed Application to the DOC

Because the DOC's letters were returned to sender, Plaintiff never received information regarding his placement on medical review or his removal from the list of eligible applicants. ( See Def. 56.1 ¶¶ 68, 70). On July 14, 2009 (more than three years after his last interaction with the DOC), Plaintiff contacted the DOC by telephone regarding his application status and to update the DOC on a change of address. ( Id. at ¶¶ 71-72). During this conversation, Plaintiff found out for the first time that he had been placed on medical review and that his name had been removed from the eligible list. ( Id. ). After this telephone call, Plaintiff attempted to rectify the deficiencies in his application by sending medical documentation, including an electrocardiogram ("EKG"), demonstrating that he was "an able-bodied individual with no medical problems." (Petty Dep. 139). On August 4, 2009, approximately one week after receiving Plaintiff's medical documentation, the DOC restored Plaintiff's application. Thereafter, on September 16, 2009, Plaintiff attended and passed a DOC medical exam, which established that he was physically able to perform the duties of a correction officer. ( See Def. 56.1 ¶ 76; Switzer Decl., Ex. Q).

In October 2009, Plaintiff visited the DOC and met with Investigator Pam Ians for fingerprinting in connection with the DOC's background investigation. (Def. 56.1 ¶ 77).[9] By happenstance, Ians had previously worked with the NYPD, and recognized Plaintiff from years earlier when Plaintiff had applied to become a police officer. ( See id. at ¶ 78). During a brief conversation with Ians, Plaintiff noted that the NYPD had not hired him, and that he had filed an administrative complaint. ( Id. at ¶¶ 78-79).[10] Plaintiff did not mention the nature of his grievance or the allegations contained in his administrative complaint. ( Id. ). The next day, Plaintiff received a telephone call from Ians's supervisor, Deputy Director Marvell. ( Id. at ¶ 82).[11] According to Plaintiff's testimony, Marvell inquired about whether Plaintiff had filed a lawsuit against the NYPD. ( See Petty Dep. 195-96). During this conversation, Marvell reportedly told Plaintiff that he could remove Plaintiff's ...


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