Gomez v. The City of New York
ORDER granting 27 Motion for Summary Judgment on plaintiff's federal claims and dismissing without prejudice plaintiff's state law claims. Ordered by Senior Judge I. Leo Glasser on 4/30/2012. (Green, Dana)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Memorandum and Order
09 Civ. 620
- against THE CITY OF NEW YORK
GLASSER, United States District Judge:
Plaintiff Deyanira Gomez (“plaintiff” or “Gomez”), a former police officer with the
New York City Police Department (“NYPD”), filed this action against the City of New
York (“NYC”) alleging that NYPD, on the basis of her gender and national origin,
discriminated against her, subjected her to a hostile work environment, failed to
promote her, and retaliated against her in violation of the Civil Rights Act of 1866, 42
U.S.C. §§ 1981 (“§ 1981”) & 1983 (“§ 1983”); the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 296, et seq. (McKinney 2010); and the New York City
Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-502. Before the Court is the
defendant’s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure
56. For the following reasons, defendant’s motion is GRANTED.
The following facts are drawn from the Amended Complaint and defendant’s
Rule 56.1 Statement, which is unopposed by plaintiff for the purposes of this motion.
See Defendant’s Rule 56.1 Statement of Undisputed Facts (“Def.’s R. 56.1”). Gomez, a
Dominican-American woman, became a police officer with the NYPD in February 1994.
Amended Complaint dated May 12, 2009 (“Am. Compl.”) ¶ 9. On or about December
13, 2003, Gomez took Examination No. 3560 in order to qualify for promotion to
Sergeant in the NYPD. Id. ¶ 14. In 2004, she was notified by the Department of
Citywide Administrative Services that she had passed the exam and was on the Eligible
List for promotion. Id. ¶ 15.
On April 23, 2004, Gomez was assigned to the 75th Precinct. Def.’s R. 56.1 ¶ 7.
She testified that beginning in October 2004, she was sexually harassed by a supervisor,
Sergeant Lee Chong (“Lee Chong”). Def.’s R. 56.1 ¶¶ 8-43. In July 2005, she
complained about the harassment to the New York Police Department Office of Equal
Opportunity. Id. ¶¶ 33, 43. Gomez alleges that Lee Chong and several other officers in
the 75th Precinct retaliated against her for the complaints that she made by, among other
things, giving her unfavorable assignments, failing to pay her overtime, and issuing
disciplinary letters. Id. ¶¶ 33, 72-108, 162-72.
At her request, on February 6, 2006 Gomez was transferred from the 75th
Precinct to the 23rd Precinct. Def.’s R. 56.1 ¶¶ 84, 109. She alleges that after she
transferred to the 23rd Precinct, she was again subject to further harassment and
retaliation for her complaints against Lee Chong. Id. ¶¶ 125-51, 184. Gomez also alleges
she was subject to discrimination due to male officers’ stereotypes about the sexual
promiscuity of women from the Dominican Republic. Id. ¶¶ 112-19.
Gomez was subject to disciplinary charges for three instances of insubordination
and three instances of unauthorized use of pepper spray on suspects (one of whom was a
handcuffed high school truant). Id. ¶¶ 172-73, 176. These charges were substantiated
after an investigation by the Civilian Complaint Review Board (“CCRB”) and hearings
were held before the Assistant Deputy Commission for Trials Claudia Daniels-DePeyster
on May 30, 2006 and June 16, 2006. Id. ¶¶ 174-76. On October 30, 2006, Gomez was
found guilty of two of the three insubordination charges and two of the three charges for
unauthorized use of pepper spray. Id. ¶ 176.
On or about August 31, 2006 Gomez received a letter from the NYPD Employee
Management Division that she had not been selected for appointment to sergeant. Am.
Compl. ¶ 17. Plaintiff alleges that the disciplinary charges that were brought against her
were in retaliation and were deliberately kept pending so that her application for
promotion would be denied. Id. ¶ 18; Def.’s R. 56.1 ¶ 158. She claims that denial was in
accordance with a rule that if charges were pending against an applicant, that applicant
would not be promoted. Def.’s R. 56.1 ¶¶ 157-161. Plaintiff has presented no evidence of
the existence of this rule.
This Court has original jurisdiction over plaintiff’s § 1981 and § 1983 claims,
claims arising under federal law. The Court has supplemental jurisdiction over
plaintiff’s state law discrimination claims. Federal courts have supplemental
jurisdiction over “all other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution.” 28 U.S.C. § 1367(a). A state law claim forms part of
the same controversy if the state and federal claim “derive from a common nucleus of
operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16
L.Ed.2d 218 (1966). Here, the parties and alleged events and injuries that form the
grounds for plaintiff’s federal claims are identical to those that form the grounds for
plaintiff’s state law claims.
Summary Judgment Standard
Summary judgment is appropriate “if 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). As an initial matter, the moving party has the burden of
demonstrating that no genuine dispute of material fact exists for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538
(1986). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
Once the moving party has met this burden, the opposing party “‘must do more
than simply show that there is some metaphysical doubt as to the material facts. . . .
[T]he nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quoting Matsushita, 475 U.S. at 586-87 (emphasis in original)). “If a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if
the motion and supporting materials — including the facts considered undisputed —
show that the movant is entitled to it.” Fed. R. Civ. P. 56(e).
The Court is compelled to draw all reasonable inferences in favor of the
nonmoving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a
reasonable jury could find in favor of the non-moving party. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). However,
“[i]f the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted). “[T]he
mere existence of some alleged factual dispute between the parties” alone will not defeat
a properly supported motion for summary judgment. Id. at 247-48. “Thus, the
nonmoving party may not rest upon mere conclusory allegations or denials but must set
forth ‘concrete particulars’ showing that a trial is needed.” R.G. Grp., Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting S.E.C. v. Res. Automation Corp.,
585 F.2d 31, 33 (2d Cir. 1978)).
Statute of Limitations
Defendant first argues plaintiff’s claims are barred by the applicable statute of
limitations. This argument is not grounds for summary judgment. The statute of
limitations for plaintiff’s § 1981 claims is four years. See Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 383-84, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004); James v.
Countrywide Financial Corp., __ F. Supp. 2d ___, 2012 WL 35992, at *16-18 (E.D.N.Y.
Feb. 2, 2012) (discussing the effect of the Supreme Court’s decision in Jones). The
statute of limitations for § 1983, NYSHRL, and NYCHRL claims is three years.
Cloverleaf Realty of N. Y., Inc. v. Town of Wawayanda, 572 F.3d 93, 94 (2d Cir. 2009)
(statute of limitations for § 1983 actions filed in New York is three years); Kassner v.
2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (statute of limitations for
NYSHRL and NYCHRL is three years).
The Complaint in this action was filed on February 13, 2009. Therefore, plaintiff
is precluded from pursuing any claims under § 1981 for discreet acts that occurred prior
to February 13, 2005. Plaintiff is precluded from pursuing any claims under § 1983, the
NYSHRL, or NYCHRL for discrete acts that occurred prior to February 13, 2006. The
only discrete adverse employment action alleged by plaintiff is the failure to promote
her on August 31, 2006. See Am. Compl. ¶ 17. This adverse action falls well within the
applicable statutes of limitations, as do substantially all acts of discrimination,
harassment, and retaliation occurring after plaintiff’s transfer to the 23rd Precinct. The
untimely allegations made in plaintiff’s depositions or elsewhere, though not actionable
in themselves, may be cited as evidence in support of plaintiff’s timely claims. See Flynn
v. N.Y. State Div. of Parole, 620 F. Supp. 2d 463, 483 (S.D.N.Y. 2009) (female parole
officer could only recover for discrete acts of discrimination falling within the statute of
limitations but time-barred discriminatory acts were still admissible as “background
evidence.” (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 112 S. Ct.
2061, 153 L. Ed. 2d (2002); Glynn v. Cnty. of Suffolk, 50 F. App’x 58, 58-59 (2d Cir.
Finally, plaintiff’s hostile work environment claims are not subject to these
statutes of limitations because “[t]he ‘unlawful employment practice’ . . . cannot be said
to occur on any particular day. . . . Such claims are based on the cumulative effect of
individual acts.” Morgan, 536 U.S. at 115 (citation omitted). For plaintiff’s hostile work
environment claims, “[p]rovided that an act contributing to the claim occurs within the
filing period, the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.” Id. at 117. Because plaintiff alleges she
was subjected to a hostile work environment at the 23rd Precinct, these claims are also
Plaintiff’s § 1981 Claims Fail as a Matter of Law
Summary judgment must be granted on plaintiff’s § 1981 claims because plaintiff
fails to state a claim as a matter of law. Plaintiff alleges that she was subject to
discrimination, a hostile work environment, retaliation, and was not promoted due to
her gender or national origin. It is well-established that § 1981 does not recognize
claims based on gender or national origin. See Anderson v. Conboy, 156 F.3d 167, 171
(2d Cir. 1998) (citations omitted).
Plaintiff argues that her Dominican origin should be considered an ethnicity or
race. In support, plaintiff cites to St. Francis College v. Al-Khazaji, 481 U.S. 604, 107 S.
Ct. 2022, 95 L. Ed. 2d 582 (1987), a case that addressed whether a plaintiff of Arabian
descent was of a different race from—and could bring a § 1981 racial discrimination
claim against—the Caucasian defendants. The Court determined that racial
discrimination claims pursuant to § 1981 encompass more than broad historic
categories such as “Black” and “White” and include discrimination between ethnicities
or other “identifiable classes of persons who are subjected to intentional discrimination
solely because of their ancestry or ethnic characteristics.” Id. at 613. However, it is not
in dispute whether plaintiff’s Dominican ancestry could be grounds for a § 1981 racial
discrimination claim. The fact is that Gomez, unlike the plaintiff in Al-Khazaji, has not
pled a racial discrimination claim and—as Al-Khazaji itself made clear—it remains
settled precedent that national origin claims are not recognized under § 1981. See 408
U.S. at 613.
Plaintiff also urges the Court to construe her claim as one for racial
discrimination because, “the pleadings and answers to the interrogatories make it very
clear that she is not only alleging discrimination on the basis of her place of origin . . . .”
Pl.’s Mem. at 4. On the contrary, nowhere in plaintiff’s pleadings does she identify or
refer to her race or racial discrimination, and plaintiff specifically and repeatedly
identifies her claims as based on national origin and gender, not race. Any amount of
legal research would have revealed that such claims are not cognizable. Plaintiff filed
suit more than three years ago and was given an opportunity to amend the Complaint,
yet did not correct this deficiency. It is well-settled that a party is not entitled to amend
its complaint through statements made in motion papers or interrogatories. See, e.g.,
Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (party not entitled to
amend the complaint through statements made in motion papers); In re Agape
Litigation, 773 F. Supp. 2d 298, 316 (E.D.N.Y. 2011) (“[A] plaintiff cannot amend the
complaint through briefs and affidavits. . . .” (quotation and citation omitted)). For the
foregoing reasons, plaintiff has failed to state a claim as a matter of law and defendant’s
motion for summary judgment must be granted as to plaintiff’s § 1981 claims.
Plaintiff’s § 1983 Claims Fail as a Matter of Law
Summary judgment must also be granted on plaintiff’s § 1983 claims because
plaintiff has failed to present any evidence (or even to plead) she was deprived of her
rights as a result of an official policy or custom, an essential element of her claims. A
municipality, such as NYC, is liable under § 1983 when, by implementation of “a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that
[municipality’s] officers” or through practices that are so “permanent and well settled”
as to constitute governmental “custom,” it deprives the plaintiff of a constitutional right.
Monell v. Dep’t of Social Services, 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978). The City may not be held liable under § 1983 on a theory of vicarious liability.
Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable solely because it
employs a tortfeasor—or, in other words, a municipality cannot be held liable under §
1983 on a respondeat superior theory.” (emphasis in original)). Moreover, “a direct
casual link between a municipal policy or custom and the alleged constitutional
deprivation” must be established. City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct.
1197, 103 L. Ed. 2d 412 (1989).
Here, plaintiff’s Amended Complaint alleges defendant has a “long history” of
discrimination and failing to protect female minority officers who complain of
discrimination. See Am. Compl. ¶¶ 11-13. Nowhere does plaintiff identify any alleged
policy, custom, or practice of the City that caused her injuries. In contrast, defendant
has presented evidence that plaintiff’s allegation, if true, violated longstanding policies
of NYC. See Waters Decl. Ex. K. Plaintiff has not addressed this issue in her brief and
makes no attempt to present any evidence in support of her claims. “Mere conclusory
allegations or denials cannot by themselves create a genuine issue of material fact where
none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation
omitted). Because plaintiff has failed to set out specific facts showing a genuine issue
for trial and no reasonable jury could find in plaintiff’s favor, summary judgment must
also be granted as to plaintiff’s § 1983 claims.
Plaintiff’s State Law Claims
Having granted summary judgment to the defendant on plaintiff’s federal claims,
the Court declines to exercise supplemental jurisdiction over plaintiff’s NYSHRL and
NYCHRL claims. A court may decline to exercise supplemental jurisdiction over a
pendent state law claim if the court has dismissed all federal claims over which it has
original jurisdiction. See 28 U.S.C. § 1367(c)(3); Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 350 & n. 7, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988) (“[I]n the usual case in
which all federal-law claims are eliminated before trial, the balance of factors to be
considered under the [supplemental] jurisdiction doctrine—judicial economy,
convenience, fairness, and comity—will point toward declining to exercise jurisdiction
over the remaining state-law claims.”). Accordingly, Gomez’s state law claims are
dismissed without prejudice.
For the foregoing reasons, defendant’s motion for summary judgment is
GRANTED. The Court declines to exercise supplemental jurisdiction over plaintiff’s
NYSHRL and NYCHRL claims and those claims are dismissed without prejudice. The
Clerk of the Court is directed to enter judgment dismissing the Amended Complaint and
closing this case.
Brooklyn, New York
April 30, 2012
I. Leo Glasser
United States District Judge
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