Bazile v. City of New York

• Decision Date: 02 August 2002
• Docket Number: No. 99CIV1325VMMHD.,99CIV1325VMMHD.
• Citation: 215 F.Supp.2d 354
• Parties: Pierre BAZILE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

215 F.Supp.2d 354

Pierre BAZILE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

No. 99CIV1325VMMHD.

United States District Court, S.D. New York.

August 2, 2002.

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Pierre Bazile, East Elmhurst, NY, Pro se.

Tania M. Torno, Michael D. Hess, Corporation Counsel of the City of NY, New York City, for Defendants.

DECISION AND AMENDED ORDER

MARRERO, District Judge.

On February 23, 1999, Plaintiff Pierre Bazile (hereinafter "Bazile"), an officer of the New York City Police Department, filed this action, alleging, inter alia, that he was subjected to a hostile work environment and retaliation by defendants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (hereinafter "Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law § 290 (hereinafter "NYHRL"), as well as a denial of equal protection, in violation of 42 U.S.C. § 1983. The defendants, including the City of New York, the New York City Police Department (hereinafter the "NYPD"), Captain William Morris, Captain Jeffrey Behrens, Captain Charles Fries, Captain Stephen Donnelley, and Lieutenant Thomas Barry (hereinafter collectively, the "Defendants"), move for summary judgment, asserting that Bazile has not presented sufficient facts to raise a triable issue in support of his claims. On May 10, 2002, Magistrate Judge Michael H. Dolinger, to whom the matter had been referred for pretrial purposes and dispositive motions, issued a Report and Recommendation (hereinafter the "Report") which recommended the dismissal of Bazile's claims. A copy of the Report is attached hereto and incorporated herein. On May 29, 2002, Bazile filed objections to the Report, asserting that: (1) he presented evidence sufficient to establish an issue of material fact regarding his hostile work environment and retaliation claims; and (2) Magistrate Judge Dolinger improperly excluded the expert testimony of Michael Levine (hereinafter "Levine"). Having conducted a de novo review of the portions of the Report to which Bazile objects,¹ the Court issued an Order on June 27, 2002 granting Defendants' motion for summary judgment and indicating that the Court's reasoning would be detailed in a subsequent Order. The June 27, 2002 Order is amended to incorporate the reasons set forth below as the basis for the Court's conclusion that Bazile failed to establish any genuine issues of material fact. Accordingly, the Court grants the Defendants' motion for summary judgment.

I. FACTUAL BACKGROUND

Bazile's claims arise from an incident on May 22, 1997, in which he shot a small pit bull in the lobby of an apartment building in Far Rockaway, Queens, and the subsequent disciplinary actions against him taken by the NYPD. The incident occurred while Bazile, an officer of the NYPD for four years, was off-duty working as a security guard. (See Dep. of Pierre Bazile, dated June 2, 2000 (hereinafter "Bazile Dep."), attached as Ex. 2 to the Declaration of Bryan D. Glass, dated June 27, 2000, (hereinafter the "Glass Decl."), at 43, 49-50.) Bazile discharged his gun eleven times as the dog approached him, and several bullets ricocheted, with one bullet striking Bazile in the face, and another lodging in the bicycle tire of a boy who had just entered the lobby. (See id. at 119-20.)

Because Bazile had discharged his revolver, a follow-up investigation was required. (See Letter from Maureen B. Godfrey, NYPD Law Intern to William Lai, Enforcement Supervisor, U.S. Equal Opportunity Commission (hereinafter "Godfrey Letter"), dated June 17, 1998, attached as Ex. L to the Glass Decl., at 2-3.) The NYPD conducted the investigation and later commenced disciplinary proceedings against Bazile. The investigation revealed that Bazile had violated several rules of the Patrol Guide Procedure, which governs the conduct of NYPD police officers. More specifically, two relevant provisions of the Patrol Guide Procedure provide that police officers shall not: (1) discharge their weapons when doing so will unnecessarily endanger innocent persons; or (2) discharge their firearms at a dog or other animal except to protect themselves or another person from physical injury and there is no other reasonable means to eliminate the threat. (See id. at 5.)

On September 30, 1997, the Discharge Review Board, which reviews all firearms discharges by NYPD police officers, concluded that Bazile had violated these guidelines. (See Letter of Findings and Recommendations from the Patrol Borough Queens South (hereinafter "P.B.Q.S.") Firearms Discharge Review Board Chairman to the Dep't Firearms Discharge Review Board Chairman, dated Sept. 30, 1997, attached as Ex. Q to the Godfrey Letter, at 1.) On December 2, 1997, the Chief of the NYPD concurred, and on March 31, 1998, Bazile was formally charged with violating the two provisions described above. (See Letter of Findings of Dep't Firearms Discharge Review Board, from the Chief of the Dep't to the Commanding Officer of the P.B.Q.S., dated Dec. 2, 1997, attached as Ex. C to the Glass Decl., at 1.)

Pending the completion of the investigation and the disciplinary proceedings, the NYPD placed Bazile on modified duty in the Brooklyn Court Section, and later on foot patrol in a unit he characterizes as predominantly comprised of minorities. (See Pl.'s Objections to Magistrate Dolinger's Report and Recommendation (hereinafter "Pl.'s Objections"), dated May 29, 2002, at 3.) Due to the nature of the incident and the unusual response of Bazile, the Discharge Review Board felt that it was necessary to require Bazile to be evaluated by NYPD Psychological Services. (See Dep. of Douglas Ziegler, dated May 15, 2000, attached as Ex. EE to the Glass Decl., at 19, 21-22, 49-50.) Bazile alleges that these actions by the Defendants were motivated by his race and national origin. (See Verified Am. Compl., dated Apr. 16, 1999, at ¶¶ 59, 63, 70, 78, 83.)

Bazile spoke with a reporter from the Daily News about his situation, which resulted in an article describing his long wait for formal charges to be filed. (See Gene Mustain, Probe Dogging Cop in Pitt Bull Shooting, Daily News, Dec. 21, 1997, attached to the Glass Decl. as Defs.' Ex. D (hereinafter "Daily News").) Bazile also sent a number of letters describing his situation to NYPD supervisors as well as to public officials. (See, e.g., Letter from the President of the Borough of Queens Claire Shulman to NYPD Commissioner Howard Safir, dated January 14, 1998, attached as Ex. F to the Glass Decl., at 1.) On January 20, 1998, Bazile filed a complaint with the Equal Employment Opportunity Commission (hereinafter the "EEOC"). His EEOC complaint focused exclusively on: (1) the length of his modified duty assignment in the Brooklyn Court Section; (2) an alleged unnecessary delay in the NYPD's investigation; and (3) the referral for a psychological evaluation. (See Pl.'s Compl., dated Feb. 23, 1999, at 15-17.) On November 30, 1998, the EEOC dismissed Bazile's complaint and sent him a right to sue letter stating, "there is no evidence supporting your contentions that the laws enforced by the [EEOC] were violated," and that "it is unlikely that the [EEOC] would find a violation if it invested additional resources in this matter." (See Letter from EEOC Enforcement Manager Harold F. Wilkes to Bazile, dated Nov. 30, 1998, attached as Ex. S to the Glass Decl., at 1.)

II. BAZILE'S OBJECTIONS

Bazile objects to the Report in its entirety, claiming that it fails to address the majority of his factual allegations as well as the supporting evidence regarding the adverse employment actions that the Defendants took against him. Bazile first asserts that his Title VII hostile work environment and retaliation claims should not be dismissed on summary judgment because he presented evidence sufficient to establish issues of material fact. (See Pl.'s Objections at 2.) He further asserts that his hostile environment and retaliation claims under NYHRL and 42 U.S.C. § 1983 should not be dismissed on summary judgment for similar reasons. (See id. at 12.) Additionally, Bazile objects to the exclusion of Levine's expert testimony. (See id. at 6.) Having reviewed and considered Bazile's objections in light of the record before it, this Court concludes that all of Bazile's objections are meritless.²

III. DISCUSSION

A. HOSTILE WORK ENVIRONMENT

In the instant case, Bazile bases his hostile work environment claim on both his modified duty assignment in the Brooklyn Court Section and his current walking post assignment. To establish a claim for exposure to a hostile work environment under Title VII, a plaintiff must present sufficient evidence that he was subjected to discriminatory behavior sufficiently severe or pervasive to create a hostile or abusive working environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The environment must be both objectively hostile or abusive in the eyes of a reasonable person and subjectively hostile in the eyes of the victim. See id. (quoting Meritor Sav. Bank, 477 U.S. at 64, 67, 106 S.Ct. 2399).

Where alleged discriminatory conduct occurs prior to the filing of a charge with the EEOC, before commencing a Title VII suit the plaintiff must first exhaust his administrative remedies by presenting his claim to the EEOC within 300 days of the asserted violation. See 42 U.S.C. § 2000e-5; Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Legnani v. Alitalia, 274 F.3d 683, 686 (2d Cir.2001) (citations omitted).

When a claim relates to conduct that arises subsequent to an EEOC filing, the Court may consider it only if it is "reasonably related" to the matters asserted in the EEOC charge. See Legnani, 274 F.3d at 686; Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (...