United States District Court, E.D. New York
Reynold A. Mauro, Esq. Attorney for the Plaintiff.
of the General Counsel The Port Authority of New York &
New Jersey Attorneys for the Defendant, By: Karla D. Denalli,
MEMORANDUM OF DECISION & ORDER
D. SPATT United States District Judge.
before the Court in this employment discrimination case is a
motion by the Defendant Port Authority of New York and New
Jersey (the “Port Authority”), pursuant to
Federal Rule of Civil Procedure (“Fed. R. Civ.
P.”) 56, seeking summary judgment and dismissal of the
reasons that follow, that motion is granted as to the federal
claims over which the Court has original jurisdiction, and
the Court declines to exercise supplemental jurisdiction over
the remaining state law cause of action.
turning to the salient facts, the Court makes a few initial
observations regarding the record in this case.
the Court's recitation of the material facts is based
solely on the Defendant's Local Rule 56.1 Statement and
the Court's evaluation of the supporting evidence in the
regard, despite being served with the Defendant's Local
Rule 56.1 Statement on May 16, 2016, and October 21, 2016,
the Plaintiff, apparently in violation of the Local Civil
Rules and this Court's Individual Motion Practices, never
served a counter-statement of facts or otherwise materially
disputed the Defendant's version. See Local
Civil Rule 56.1(b); Individual Motion Practices of Judge
Arthur D. Spatt § IV(D)(i).
given the Plaintiff's failure to respond, the
Defendant's version of the material facts, to the extent
it is well-supported by the evidence in the record, is deemed
admitted for purposes of this motion. See Local
Civil Rule 56.1(c).
again in apparent violation of the relevant rules, the
eight-page attorney affirmation that the Plaintiff submitted
in opposition to the present motion does not include a
statement of facts; does not attach any supporting evidence;
and does not specifically cite to supposedly disputed
portions of the Defendant's evidence. Rather, the
Plaintiff cites extensively to the complaint, and asks the
Court to simply deem those allegations as provably true.
However, this approach is patently insufficient to defeat a
properly-supported motion for summary judgment. See
Fed. R. Civ. P. 56(c)(1)(A) (requiring that “a party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of
the materials in the record”); see also Champion v.
Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (noting that a
plaintiff opposing summary judgment may not rely on his
complaint to defeat the motion).
the Plaintiff has interposed an unauthorized surreply, which,
in its discretion, the Court declines to consider. See
Kapiti v. Kelly, No. 07-cv-3782, 2008 U.S. Dist. LEXIS
20135, at *3 n.1 (S.D.N.Y. Mar. 12, 2008) (noting that
“the decision to permit a litigant to submit a surreply
is a matter left to the Court's discretion, since neither
the Federal Rules of Civil Procedure nor the Local Civil
Rules of this Court [and the Eastern District] authorize
litigants to file surreplies”).
this backdrop, the Court notes the following facts, which are
The Relevant Facts
Plaintiff is an African-American male and an observant member
of the Seventh Day Adventist Church.
November 1, 1993, he was hired by the Port Authority as a
police officer recruit. After graduating from the academy, he
spent approximately 14 years working various details at JFK
International Airport, LaGuardia Airport, and the Port
Authority Bus Terminal.
The Plaintiff's Temporary Assignment to the Criminal
undisputed that on or about October 3, 2007, the Plaintiff
was temporarily assigned to the Criminal Investigations
Bureau (“CIB”), as part of an initiative
informally called the Silver Shield program. The Silver
Shield program was designed to supplement the detective ranks
in CIB with plainclothes police officers from the Public
Safety Department, such as the Plaintiff.
Plaintiff testified at his deposition that he joined the
Silver Shield program subject to certain expectations given
to him by the Deputy Superintendent George Johansen. In
particular, the Plaintiff was apparently made to believe that
his participation in the program guaranteed his eventual
promotion to detective. However, other than his own
testimony, there is no evidence in the record to corroborate
the Plaintiff's understanding of the opportunities for
advancement within the Silver Shield program.
other hand, the Port Authority contends that participation in
the Silver Shield program is, by definition, temporary; that
a police officer's participation is not a guaranteed
entrée to detective; and, conversely, that
participation in the program is not a prerequisite to being
promoted, so that officers who do not participate are also
eligible to be made detectives.
with its contention, the Port Authority produced a memorandum
from Deputy Chief of Staff Michael P. Valenti to Police
Office Gus Danese, the President of the Port Authority Police
Benevolent Association, entitled “Temporary Assignment
- Police Officer William Prentice (#39260) JFK - Assigned to
Criminal Investigations Bureau.” As its title suggests,
this memo set forth certain agreed-upon terms between the
Port Authority and the PBA regarding the Plaintiff's
temporary assignment to CIB.
relevant part, the memo indicated that the Plaintiff's
assignment would commence on October 3, 2007 and would
continue for one year, unless extended by agreement of the
parties. It further stated that, at the conclusion of his
assignment, the Plaintiff would return to his former position
as a Port Authority police officer at JFK airport. During his
assignment, the Plaintiff would retain his title and all
police officer benefits, and he would remain eligible for any
promotion or transfer opportunities that arose during his
assignment for which he was otherwise qualified. Also, during
this time, although he was not eligible for voluntary
overtime as a police officer at his permanent facility,
namely, JFK airport, he remained eligible to perform
voluntary overtime as a police officer at other facilities,
and in CIB.
October 2, 2007, Danese signed the memo to “indicate
[his] concurrence” with the terms outlined therein.
The March 2012 Promotion Opportunity
March 23, 2012, while the Plaintiff was working in CIB, the
Port Authority announced that it was seeking to identify
qualified candidates for a promotion to detective.
March 26, 2012, the Plaintiff applied for this position by
submitting a written statement of interest, nicknamed a
“handwritten.” In a supporting affidavit, Michael
Ford, the Manager for Assessment Services in the Port
Authority's Human Resources Department,
described the process by which candidates were evaluated.
Namely, after receiving the “handwrittens” of all
interested candidates, a random selection process monitored
by the Office of the Inspector General was used to generate a
candidate pool of 160 applicants.
there, a Promotion Review Board performed additional
screening of those in the candidate pool, utilizing a number
of performance-based factors, including attendance history
and patterns; discipline history; number, nature and history
of Civilian Complaint Investigations Unit, criminal, or civil
actions; and Internal Affairs complaints or other pending
the most competitive candidates were selected to proceed to
an interview with members of the Public Safety and Human
Resources Departments, at which time their commanding
officers were also required to complete a
Promotion/Developmental Appraisal form. The Promotion Review
Board then reviewed the finalists' overall qualifications
and made promotional recommendations to the Superintendent of
11, 2012, Brian Oberhelm, a Strategic HR Partner in the Port
Authority's Human Resources Department, notified the
Plaintiff in a memo that he had not been among the initial
160 candidates randomly-selected to proceed in the evaluation
process. Therefore, he was removed from consideration for the
Court notes that a computer printout of the names
randomly-selected at the first stage of this hiring process
was submitted with Ford's affidavit, and does not include
the Plaintiff's name.
The Conclusion of the Plaintiff's ...