Gonzalez v. City of New York

• Decision Date: 18 January 2005
• Docket Number: No. 00 Civ. 1822(VM).,00 Civ. 1822(VM).
• Citation: 354 F.Supp.2d 327
• Parties: Ruben GONZALEZ, Reinaldo Palermo, Sammy Rivera and Latino Officers Association, Plaintiffs, v. CITY OF NEW YORK, New York City Police Department, Howard Safir, Commissioner, Chief Charles Kammerdener, Captain Dillon, Captain John Gorman, and Lieutenant T. Carroll,<SMALL><SUP>1</SUP></SMALL> Defendants.
• Court: U.S. District Court — Southern District of New York

354 F.Supp.2d 327

Ruben GONZALEZ, Reinaldo Palermo, Sammy Rivera and Latino Officers Association, Plaintiffs, v. CITY OF NEW YORK, New York City Police Department, Howard Safir, Commissioner, Chief Charles Kammerdener, Captain Dillon, Captain John Gorman, and Lieutenant T. Carroll,¹ Defendants.

No. 00 Civ. 1822(VM).

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

January 18, 2005.

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Daniel J. McKenna, Cronin & Byczek, L.L.P., Joan M. Cresap, Cronin & Byczek, L.L.P., Lake Success, NY, for Plaintiffs.

Julie E. O'Neill, Paul A. Crotty Corporation Counsel of the City of NY, New York City, for Defendants.

DECISION AND ORDER

MARRERO, District Judge.

Plaintiffs Ruben Gonzalez ("Gonzalez"), Reinaldo Palermo ("Palermo"), Sammy Rivera ("Rivera"), and the Latino Officers Association (the "LOA") (collectively, "Plaintiffs") bring this action against the City of New York, the New York City Police Department (the "NYPD"), and their former or current supervisors in the NYPD (collectively, "Defendants") alleging employment discrimination on the basis of Plaintiffs' national origin and race and in retaliation for Plaintiffs' opposition to Defendants' alleged discriminatory practices. Plaintiffs assert claims under: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), provisions of other federal civil rights statutes, specifically 42 U.S.C. §§ 1981, 1983 and 1985, and the corresponding New York State and City Human Rights Laws ("HRL").

Defendants have moved for summary judgment with respect to the following claims: Palermo's and Rivera's claims that Defendants discriminated against them on the basis of race and national origin by failing to promote them; Plaintiffs' claims that they were subjected to retaliation for engaging in protected activities under Title VII; and Plaintiffs' claims that Defendants engaged in a pattern and practice of discrimination against Hispanic detectives.² In addition, Defendants move to dismiss all of the LOA's claims for failure to prosecute under Federal Rule of Civil Procedure 41(b) ("Rule 41(b)"). For the reasons explained below, the Court grants in part Defendants' motion for summary judgment and denies Defendants' Rule 41(b) motion to dismiss.

I. BACKGROUND

The three individual plaintiffs in this case, Gonzalez, Palermo and Rivera, who are Hispanic, are retired detectives with the NYPD.³ Each was employed by the NYPD for close to or more than twenty years.⁴ Although each of the individual plaintiffs was promoted from the rank of Police Officer to that of Detective Third Grade,⁵ they all argue that Defendants' failure to promote them to Detectives Second Grade on a timely basis⁶ was the result of discrimination against them as Hispanics.

In support of their claim, Palermo and Rivera⁷ state that white officers with less seniority and who had received fewer recommendations for promotion than Palermo and Rivera were nonetheless promoted to Detective Second Grade ahead of them. Both of these plaintiffs have submitted extensive records documenting their achievements as officers and detectives, including performance evaluations, commendations, and recommendations. Palermo received overall performance evaluation ratings of "meets standards" in 1974, 1976 and 1977, "above standards" in 1975, "highly competent" in 1991, and "exceeds standards" from 1992 through 1995.⁸ (Ex. I to Bernstein Decl.) Rivera received overall performance evaluation ratings of "meets standards" in 1981 and 1982 and "exceeds standards" in 1996.

Defendants explain that, in order to be placed in the pool of candidates for promotion, a detective must be recommended for promotion by his or her local commanding officer.⁹ Palermo was promoted to Detective Third Grade in 1982. He was subsequently recommended for advancement in grade status in 1984 and 1986 through 1988. (See Ex. I to Bernstein Decl.) Nonetheless, he was never promoted to Detective Second Grade. Rivera was promoted to Detective Third Grade in 1987. He was recommended for promotion from Third to Second Grade Detective once in 1991 and twice in 1993.¹⁰ He was not promoted to Detective Second Grade until 2001, though, after the filing of the instant lawsuit.

Based on their claim that Defendants failed to promote them due to racial discrimination, as well as alleging other claims of discrimination discussed below, Plaintiffs filed complaints with the Equal Employment Opportunity Commission (the "EEOC") in the mid- and late 1990s. The EEOC determined that it was more likely than not that Defendants had violated Title VII with respect to Rivera and Palermo.¹¹ After exhausting their administrative remedies before the EEOC, Plaintiffs filed the present lawsuit on March 9, 2000.¹²

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(c) authorizes the granting of summary judgment when the evidence "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is genuine where "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.

The party moving for summary judgment bears the initial burden of showing the absence of a genuine dispute over any issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After such a showing, the burden shifts to the non-moving party to provide evidence of "specific facts showing that there is a genuine issue for trial." At this stage, the non-moving party may not rest on "mere allegations or denials," Fed.R.Civ.P. 56(e), of the movant's claims or "on mere conclusory allegations or speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998).

In considering a motion for summary judgment, the Court must" `construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004) (quoting Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003)).

B. TITLE VII

Title VII makes it unlawful for employers "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.2000e-2(a)(1). When a Title VII plaintiff cannot provide direct evidence of discrimination, courts generally use the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to evaluate the strength of the Title VII claim.

The McDonnell Douglas test involves three steps. First, the plaintiff must show a prima facie case of discrimination. In order to establish a prima facie case of discrimination, the plaintiff must show that "`(1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications.'" Petrosino v. Bell Atlantic, 385 F.3d 210, 226 (2d Cir.2004) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir.1998)). The plaintiff's evidentiary burden at the prima facie stage is "de minimis." Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir.2000). Circumstantial evidence alone, however, is insufficient to raise a presumption of bias where a plaintiff does not directly connect such evidence to the "alleged discriminatory animus." Rose v. New York City Bd. of Ed., 257 F.3d 156, 161-62 (2d Cir.2001).

Once the plaintiff has established a prima facie case, a rebuttable presumption of discrimination arises, shifting the burden back to the defendant to provide a nondiscriminatory reason for the employment decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Finally, if the employer provides a nondiscriminatory reason for its actions, the presumption of discrimination is rebutted and the burden shifts back to the plaintiff to show by a preponderance of the evidence that the employer's decision was motivated, at least in part, by a discriminatory reason. See Fields v. New York State Off. of Mental Retard. & Dev. Disab., 115 F.3d 116, 120-121 (2d Cir.1997).

C. PALERMO'S AND RIVERA'S CLAIMS OF FAILURE TO PROMOTE

In light of the legal standards for summary judgment and Title VII claims based on adverse employment actions, the first question before the Court is whether Plaintiffs have demonstrated that there is a genuine issue of material fact with respect to a prima facie case of discrimination. While courts are often hesitant to resolve discrimination claims on summary judgment because "the employer's intent is typically at issue," summary judgment is appropriate where the non-moving party's evidence is "so scant that a rational jury cannot find in its favor." Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86-87 (2d Cir.1996) (citation omitted).

Although "McDonnell Douglas concerned a failure to rehire issue ..., the case has been cited for identifying elements of a prima facie claim for failure to promote." Brown, 163 F.3d at 710 n. 1 (citing Raskin v. Wyatt Co., 125 F.3d 55, 64 (2d Cir.1997)). The Second Circuit has explained that "`[t]he facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from respondent is not necessarily applicable in every...