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Guzman v. City of New York

United States District Court, S.D. New York

March 18, 2015

CITY OF NEW YORK, et al., Defendants

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[Copyrighted Material Omitted]

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For Jessenia Guzman, Plaintiff: Linda M Cronin, LEAD ATTORNEY, Moshe Chaim Bobker, Cronin & Byczek, LLP, Lake Success, NY.

For City of New York, New York City Police Deptartment, Commissioner Raymond Kelly, of the NYC Polcie Dept. being sued individually, Commissioner Raymond Kelly, all being sued professionally, Lieutenant Richard J Khalaf, all being sued individually, Richard J Khalaf, all being sued professionally, Sergeant Damian Garcia, all being sued individually, Sergeant Damian Garcia, all being sued professionally, Inspector Nancy Barry, all being sued individually, Inspector Nancy Barry, all being sued professional, M.D. " John" Bello, all being sued individually, M.D. " John" Bello, all being sued professionally, Sergeant Daniel Herbert, all being sued individually, Daniel Herbert, all being sued professionally, Defendants: Leah Sharon Schmelzer Serrano, LEAD ATTORNEY, New York City Law Department, New York, NY.

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GREGORY H. WOODS, United States District Judge.

Plaintiff Jessenia Guzman brought this employment discrimination action against the City of New York, the New York City Police Department (" NYPD" ), and various individual defendants, alleging that Defendants discriminated against her based on her race, color, gender, and pregnancy, retaliated against her, and created a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act (" PDA" ), 42 U.S.C. § 2000e(k); the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 290 et seq.; the New York City Human Rights Law (" NYCHRL" ), N.Y. City Admin. Code § 8-101 et seq.; and 42 U.S.C. § § 1981 and 1983. Defendants now move for summary judgment with respect to all of Guzman's claims.

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I. Background[1]

Guzman, who identifies herself as a black, Hispanic female, was hired as a police officer by the NYPD in September 2000. See Doc. 32, Declaration of Leah S. Schmelzer (" Schmelzer Decl." ), Ex. B (Deposition Testimony of Jessenia Guzman) (" Guzman Dep." ) at 20, 126. At all relevant times, Guzman was assigned to the 24th Precinct and had the rank of Police Officer, which is the lowest uniformed rank. Id. at 21-22. Except as noted below, Guzman's supervisors at the 24th Precinct were Sergeant Damian Garcia, a Hispanic male; Sergeant Daniel Herbert, a white male; Lieutenant Richard J. Khalaf, a white male; and Inspector Nancy Barry, a white female.

Guzman's claims in this case concern a series of work-related incidents spanning from July 2010 to May 2013 that she alleges were discriminatory. The Court will describe these instances chronologically.

In July and August of 2010, while Guzman was pregnant, she was assigned to work as a telephone switchboard operator in an area of the station house that did not have air conditioning. Id. at 128-29. Neither Sergeant Garcia nor Lieutenant Khalaf was Guzman's supervisor at the time, and Inspector Barry had not yet been appointed as the commanding officer of the 24th Precinct. Id. Guzman complained to Dr. Gaetano Bello, an NYPD District Surgeon, about the lack of air conditioning, but was unable to obtain a change in assignment. Id. at 199. According to Guzman, Officers Danielle Foley, Nina Frykberg, and Joanne Greene, all of whom are white, were assigned " a nice little cushy office where they [could] perform their duties and not be stressed with the [telephone switchboard]" during their pregnancies. Id. at 166. Guzman's pregnancy in 2010 ultimately resulted in a miscarriage. Id. at 67.

On May 21, 2012, Guzman formally notified the NYPD that she was pregnant again. Id. at 93. At that time, Guzman had been pregnant for " only a few weeks." Id. at 100. On the morning of May 22, 2012, Lieutenant Khalaf instructed Sergeant Garcia to ensure that Guzman wore her police uniform to work. Schmelzer Decl., Ex. D (Deposition Testimony of Damian Garcia) (" Garcia Dep." ) at 47-48. Lieutenant Khalaf gave this instruction because it was in accordance with his understanding of " patrol guide procedure." [2] Schmelzer Decl., Ex. C (Deposition Testimony of Richard J. Khalaf) (" Khalaf Dep." ) at 67-68.

That day, Guzman was assigned to work as a telephone switchboard operator. Guzman

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Dep. at 93. She wore civilian attire to work. Id. In accordance with Lieutenant Khalaf's directive, Sergeant Garcia ordered Guzman to change into her uniform. Garcia Dep. at 47. Guzman initially objected to this order on the ground that the " pregnancy desk" had previously informed her that she was permitted to wear civilian attire to work, as she had apparently done during her previous pregnancies. Guzman Dep. at 94. Nonetheless, after Sergeant Garcia spoke to Lieutenant Khalaf and reiterated this order, Guzman attempted to comply with it and proceeded to a locker room to change into her uniform. Id. at 95.

At that point, Guzman discovered that her pants did not fit. Id. She informed another officer of this fact and was directed to return to the locker room to try on a different pair of pants. Id. Inspector Barry eventually sent a female sergeant, Sergeant Suzette Merkoski, into the locker room to " find out what was going on" with Guzman. Schmelzer Decl., Ex. E (Deposition Testimony of Nancy Barry) (" Barry Dep." ) at 24. Guzman then began to experience anxiety and ultimately suffered an anxiety attack. Guzman Dep. at 95, 100. The Patrol Borough Manhattan North Investigations Unit subsequently conducted an investigation into this incident that substantiated allegations of misconduct against Guzman, finding that Guzman " was dressed in civilian attire and failed to dress into the administrative uniform when instructed to do so." Schmelzer Decl., Ex. Z.

In relation to the above incident, Guzman testified that Officers Foley, Frykberg, and Greene were not disciplined for wearing civilian attire during their pregnancies. Guzman Dep. at 166. Guzman also testified, however, that all three of these Officers' pregnancies occurred before Inspector Barry arrived at the 24th Precinct, and that, after this incident, every pregnant officer was assigned to the telephone switchboard desk and was required to dress in full uniform. Id. at 167-69.

On May 23, 2012, Guzman learned that she had miscarried and took sick leave. Id. at 103, 105. Upon returning from sick leave several weeks later, Guzman was assigned to work on a foot post. Id. at 106. She remained assigned to a foot post for a month and a half. Id. Guzman was never informed as to why she was assigned to a foot post, but believed that the assignment was a form of punishment. Id. at 106, 150-51. According to Guzman, while being assigned to a foot post did not directly affect her pay or benefits, id. at 117, it decreased her opportunities to earn overtime by impeding her ability to make arrests, id. at 203-04. Officer Lisa Mendoza, one of Guzman's colleagues in the 24th Precinct, testified that Guzman was assigned to a foot post more than the typical officer. Schmelzer Decl., Ex. J (Deposition Testimony of Lisa Mendoza) at 47.

On June 26, 2012, Sergeant Garcia wrote Guzman's name in the " Minor Violations Log" for failing to salute him. Schmelzer Decl., Ex. X. According to Guzman, she did salute Sergeant Garcia that day, though he did not see her do so. Guzman Dep. at 206. Guzman testified that, while officers are generally required to salute a commanding or supervising officer, id. at 207, it was her " belief [that] there was no one else put[ ] in the minor violations log for not saluting [Sergeant Garcia]," id. at 206.

On the morning of July 17, 2012, Guzman called into work and requested an " Emergency Day" --a request for leave with less than five days of advance notice--because her daughter was sick. Id. at 53. Sergeant Herbert told Guzman that

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she could not take an Emergency Day because she was needed for patrol and there was a patrol car waiting for her. Id. at 59. According to Guzman, Officer Liampachara, a white male colleague, was granted an Emergency Day around the same time when his son had a fever. Id. at 64.

Guzman arrived at work at approximately 12:00 p.m. that day and received a " warn and admonish" Command Discipline for arriving late. Id. at 60, 64. A Command Discipline is a written form of discipline that an officer may choose to reject, in which case the officer may be brought up on disciplinary charges and afforded a disciplinary hearing. Id. at 41-42. Guzman rejected the above Command Discipline and, as of the date of her deposition, had not received any penalty for it. Id. at 66.

In October 2012, Guzman applied for a transfer to the Police Officers Provide Peer Assistance Unit (" POPPA Unit" ), a volunteer group in which police officers provide assistance to fellow officers through a 24-7 hotline. Id. at 143. Although Inspector Barry " recommend[ed]" Guzman for the position, she did not " highly recommend" Guzman, purportedly because of Guzman's refusal to accept the Command Discipline for arriving late on July 17th. Id. at 144. Guzman interviewed for the position with Bill Genet, the founder of the POPPA Unit, but her transfer request was ultimately denied. Id. at 146. Other than Genet, Guzman does not know who was involved in the decision to deny her transfer request. Id. Transferring to the POPPA Unit would not have increased Guzman's salary or benefits, and in fact would have decreased her overtime hours and overall income. Id. at 146-47, 204.

On her annual performance evaluation for 2012, which was conducted by Sergeant Garcia, Guzman received a rating of 3.5 out of 5. Id. at 175. Sergeant Garcia testified that most officers in his squad received a performance rating between 3.5 and 4.5, and that a rating of 3.5 was considered " good." Garcia Dep. at 24. Similarly, Guzman testified that some people considered a rating of 3.5 to be " very good." Guzman Dep. at 175. Guzman nonetheless believed that this rating prevented her from transferring to a different department. Id. at 174.

In March 2013, Lieutenant Khalaf designated Guzman as a " floater" officer, which meant that her assignments varied, and again placed her on a foot post. Id. at 149-50.

On April 22, 2013, Guzman was assigned to meet with an assistant district attorney at the District Attorney's Office. Id. at 155. After that meeting, Guzman sat in Family Court and waited for the officer with whom she had traveled downtown so that the two of them could return to the precinct together. Id. at 156. After Lieutenant Khalaf discovered that Guzman was in Family Court, Guzman was issued a Command Discipline for taking an unauthorized meal break, accompanying an officer to a court to which she was not assigned, and failing to report back to command for reassignment after completing her assignment. Khalaf Dep. at 157. Guzman conceded that she was not assigned to be in Family Court that day and did not ...

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