Smith v. City of N.Y., 17-CV-970 (VEC)

• Decision Date: 13 June 2019
• Docket Number: 17-CV-970 (VEC)
• Citation: 385 F.Supp.3d 323
• Parties: Cyress SMITH, Plaintiff, v. The CITY OF NEW YORK and Inspector John Cosgrove, Defendants.
• Court: U.S. District Court — Southern District of New York

385 F.Supp.3d 323

Cyress SMITH, Plaintiff,

v.The CITY OF NEW YORK and Inspector John Cosgrove, Defendants.

17-CV-970 (VEC)

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

Signed June 13, 2019

John Andrew Scola, Jr., Law Office of John A. Scola, PLLC, Chukwuemeka Nwokoro, Nwokoro & Associates, P.C., New York, NY, for Plaintiff

John Corbin Carter, New York City Law Department, New York, NY, for Defendants

OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Plaintiff Cyress Smith sued the City of New York and Inspector John Cosgrove of the New York City Police Department ("NYPD") for race-based discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq. ; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. See Am. Compl., Dkt. 20. Plaintiff also sued for disability-based discrimination, pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, the NYSHRL, and the NYCHRL, and for failure to accommodate his disability, pursuant to the ADA. See id. Defendants have moved for summary judgment on all claims, pursuant to Federal Rule of Civil Procedure 56. See Notice of Mot., Dkt. 53. Defendants' motion is GRANTED as to all claims except for a limited part of Plaintiff's NYCHRL claim for disability-based discrimination. As to that portion of that claim, summary judgment is DENIED, but the Court declines to exercise supplemental jurisdiction over it; accordingly, that portion of that claim is DISMISSED WITHOUT PREJUDICE. This case is CLOSED.

BACKGROUND¹

Plaintiff, who is African American, has been a member of the NYPD since 1997. See Defs.' 56.1 Stmt. ¶¶ 1–2; Pl.'s 56.1 Resp. ¶¶ 1–2. He has been diagnosed with obstructive sleep apnea and other respiratory problems; those diagnoses are the basis for his alleged disability. See Defs.' 56.1 Stmt. ¶¶ 2–3; Pl.'s 56.1 Resp. ¶¶ 2–3. He asserts that his respiratory ailments were caused by his participation in the NYPD's search-and-recovery efforts following the September 11, 2011 attacks. See Pl.'s 56.1 Resp. ¶ 3; Nwokoro Decl. Ex. 5.

Between 2006 and 2016, Plaintiff was assigned to NYPD's Performance Monitoring Unit ("PMU"). See Pl.'s Mem. of Law at 2; Defs.' 56.1 Stmt. ¶ 5; Pl.'s 56.1 Resp. ¶ 5. Cosgrove served as commanding officer of the PMU between June 2015 and September 2016. See Defs.' 56.1 Stmt. ¶¶ 5–6; Pl.'s 56.1 Resp. ¶¶ 5–6. Prior to Cosgrove's arrival, Plaintiff helped train police officers to monitor and evaluate other officers; after Cosgrove became commanding officer, however, Cosgrove relieved Plaintiff of those duties and, instead, assigned Plaintiff to deliver mail and to other tasks. See Defs.' 56.1 Stmt. ¶¶ 30–32, 34; Pl.'s 56.1 Resp. ¶¶ 30–32, 34.

Until 2015, Plaintiff had consistently received ratings of 4.0 (out of 5.0) on his annual performance evaluations, representing a rating of "highly competent."² See Defs.' 56.1 Stmt. ¶¶ 15, 18–19, 21, 23–24; Pl.'s 56.1 Resp. ¶¶ 15, 18–19, 21, 23–24. Beginning in 2015, however, Plaintiff's conduct deteriorated, causing him to be disciplined on several occasions. In three instances, Plaintiff received disciplinary warnings, known as command discipline ("CD"), for making unauthorized changes to his shift schedule (known as "tour changes"). See Defs.' 56.1 Stmt. ¶¶ 44–51, 56–57; Pl.'s 56.1 Resp. ¶¶ 44–51, 56–57; Cosgrove Decl. Exs. A, B, I. Specifically, Plaintiff was accused of making handwritten changes to posted shift schedules without first obtaining authorization from a supervisor, as NYPD procedures allegedly require.³ See Defs.' 56.1 Stmt. ¶¶ 45, 46, 51, 56; Cosgrove Decl. Exs. A, B, I.

During this time, Plaintiff also received CD for insubordination and disruptiveness. See Defs.' 56.1 Stmt. ¶ 57; Pl.'s 56.1 Resp. ¶ 57; Cosgrove Decl. Ex. A at 3–5. In one instance, Plaintiff shouted at and used profanity with a supervisor when the supervisor questioned Plaintiff's tour changes. See Cosgrove Decl. Ex. B. In another instance, Plaintiff shouted and waved his arms at two officers because he had not been told that a subordinate had momentarily stepped out of the office. See Cosgrove Decl. Ex. A at 5. And in two other instances, Plaintiff shouted at and threatened to suspend a fellow officer in front of her co-workers, bringing her to tears. See Cosgrove Decl. Ex. H.

Also during this time, Plaintiff's attendance was poor. Due to an "excessive" number of sick days that Plaintiff took "in comparison to the majority of the [police] force," in late 2014, Plaintiff was designated as a "Chronic Sick: Category A" employee. Carter Decl. Ex. F; see also Defs.' 56.1 Stmt. ¶ 68; Pl.'s 56.1 Resp. ¶ 68. According to Plaintiff, his absences were due to the respiratory ailments that he contracted working on post-9/11 search-and-recovery efforts. See Pl.'s 56.1 Resp. ¶¶ 68–69. Plaintiff twice applied to have his respiratory ailment classified as a line-of-duty injury ("LODI"); Plaintiff argues that had his ailment been classified as a LODI, his absences "would not have counted against him" in his attendance record.⁴ See Pl.'s 56.1 Resp. ¶ 68; Carter Decl. Ex. G; Nwokoro Decl. Ex. 8.

Due to Plaintiff's disciplinary and attendance problems, Plaintiff received ratings of 3.5 and 2.0 on his 2015 and 2016 performance evaluations, respectively, a marked drop from the 4.0 ratings he had previously received. See Defs.' 56.1 Stmt. ¶¶ 26–27; Pl.'s 56.1 Resp. ¶¶ 26–27; Carter Decl. Ex. D at 35–45. These evaluations stated that Plaintiff had "extremely poor" judgment, as he had "unprofessionally reprimanded subordinate members of the command in public" and had spoken "to subordinates in an unprofessional manner." Carter Decl. Ex. D at 43. The evaluations stated that Plaintiff's behavior had "disrupted command operations." Id.

In March 2016, Plaintiff filed a complaint with the NYPD's Office of Equal Employment Opportunity ("EEO"), and, in May 2016, he filed a complaint with the U.S. Equal Employment Opportunity Commission ("EEOC"); both alleged discrimination based on race and disability. See Defs.' 56.1 Stmt. ¶¶ 85, 88; Pl.'s 56.1 Resp. ¶¶ 85, 88.

In September 2016, due to Plaintiff's "repeated disruptive behavior, poor work performance, and persistent refusal to abide by Department guidelines," Cosgrove requested that Plaintiff be transferred to a different unit. Cosgrove Decl. Ex. J at 1. Later that month, Plaintiff was transferred from the PMU to the 42nd Precinct, where he remained assigned for about a year. See Defs.' 56.1 Stmt. ¶¶ 59–60, 62; Pl.'s 56.1 Resp. ¶¶ 59–60, 62. At the 42nd Precinct, Plaintiff was assigned to be a "desk officer," a position that required "a high degree of concentration and attention to detail," Am. Compl. ¶ 38, and which was located in an "open and dusty area." Id. ¶ 43. Plaintiff asserts that these conditions made it difficult for him to do the job due to his respiratory ailments. Id. ¶¶ 39, 44. Plaintiff also asserts that he requested reassignment to a different location in the 42nd Precinct as an accommodation for his disability but that the request was ignored. See id. ¶¶ 45, 47.

In October 2017, Plaintiff was transferred to the NYPD's "Queens VIPER" and "Queens Property Clerk" Divisions, where he remained until December 2017. See Defs.' 56.1 Stmt. ¶ 63; Pl.'s 56.1 Resp. ¶ 63. Plaintiff was then transferred to the "VIPER 20" unit in Manhattan, where he remains assigned. See Defs.' 56.1 Stmt. ¶ 64; Pl.'s 56.1 Resp. ¶ 64.

Plaintiff alleges discrimination and retaliation based on race in violation of Title VII, the NYSHRL, and the NYCHRL. See Am. Compl. ¶¶ 48–52, 62–67. Plaintiff also alleges discrimination based on disability, in violation of the ADA, the NYSHRL, and the NYCHRL, see id. ¶¶ 68–76, and a failure to accommodate his disability, in violation of the ADA, see id. ¶¶ 77–82.⁵

DISCUSSION

I. Standard of Review

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). To defeat summary judgment, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Sista v. CDC IXIS N. Am., Inc. , 445 F.3d 161, 169 (2d Cir. 2006). Courts "construe the facts in the light most favorable to the nonmoving party and resolve all ambiguities and draw all reasonable inferences against the movant." Delaney v. Bank of Am. Corp. , 766 F.3d 163, 167 (2d Cir. 2014) (per curiam).

A district court is "under no obligation to engage in an exhaustive search of the record" when considering a motion for summary judgment. Jones v. Goord , 435 F. Supp. 2d 221, 259 (S.D.N.Y. 2006) (citing Amnesty Am. v. Town of W. Hartford , 288 F.3d 467, 470–71 (2d Cir. 2002) ); see also Fed. R. Civ. P. 56(c)(3) ; Lee v. Alfonso , 112 F. App'x 106, 107 (2d Cir. 2004). A party opposing a motion for summary judgment must "specifically respond to the assertion of each purported undisputed fact ... and, if controverting any such fact, [must] support its position by citing to admissible evidence in the record." Baity v. Kralik , 51 F. Supp. 3d 414, 417–18 (S.D.N.Y. 2014) ; see also Fed. R. Civ. P. 56(c)(1)(A)–(B) ; Kalola v. Int'l Bus. Machines Corp. , No. 13-CIV-7339, 2017 WL 5495410, at *4 (S.D.N.Y. Jan. 9, 2017). A court need not consider arguments that do not comply with these rules. See Kalola , 2017 WL 5495410,...