Smith v. The City of New York et al

Filing 74

MEMORANDUM, ORDER AND JUDGMENT granting defendant's 64 / 65 Motion for Summary Judgment. The case is dismissed without costs or disbursements. The clerk is directed to enter judgment in favor of all defendants. Ordered by Judge Jack B. Weinstein on 1/27/2016. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MEMORANDUM, ORDER AND
JUDGMENT

BARAK.A SMITH,
Plaintiff,

14-CV-4982
- againstCITY OF NEW YORK,
Defendant.

Parties

Appearances

Baraka Smith

Pamela D. Hayes
200 West 57th Street
Suite 900
New York, NY 10019
Tel: [phone]
Fax: [phone]
Email: [e-mail]

City of New York

Rachel Anne Cartwright
New York City Law Department
100 Church Street
New York, NY 10007
Tel: [phone]
Fax: [phone]
Email: [e-mail]
William A. Grey
New York City Law Department
100 Church Street
New York, NY 10007
Tel: [phone]
Fax: [phone]
Email: [e-mail]

1

JACK B. WEINSTEIN, Senior United States District Judge:

I.

Table of Contents
Introduction ............................................................................................................................. 2

IL

Procedural Background ........................................................................................................... 2

III. Factual Background ................................................................................................................. 3
IV. Application .............................................................................................................................. 5
V.

I.

Conclusion ............................................................................................................................... 7

Introduction
This is a discrimination and disparate treatment case brought by an African-American

firefighter against the City of New York. He claims he was sexually abused by firefighters in
their firehouse. Only the City of New York remains in the case.
While plaintiff may have a cause of action in the state court for assault, he does not have
one under federal law. Subject matter jurisdiction is lacking. Defendant's motion for summary
judgment is granted. The case is dismissed without costs or disbursements.

II.

Procedural Background
Plaintiff brought claims against the City of New York for (1) sex-based discrimination in

violation of Title VII, 42 U.S.C. § 2000e et seq.; (2) race-based disparate treatment, in violation
of 42 U.S.C. § 1981(a); and (3) failure to adequately train and supervise, pursuant to Monell v.

Dep 't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978). See Compl., Aug. 21, 2014,
ECFNo. 1.
He also asserted claims against Fire Commissioner Daniel Nigro and two fire fighters
who allegedly assaulted him. See id. Claims against the three individual defendants were either
withdrawn or dismissed. See Smith v. City of New York, No. 14-CV-4982, 2015 WL 4008642,
*5-6 (E.D.N.Y. June 30, 2015).
2

The City of New York moved for summary judgment on all remaining claims. See Not.
of Mot. for Sumrn. J., Dec. 4, 2015, ECF No. 65. An evidentiary hearing on defendant's motion
was held on January 25, 2016.

III.

Factual Background
Factual findings are based upon the evidence submitted in court as well as from

Defendant's Local Rule 56.1 Statement of Undisputed Material Facts. See Hr'g Tr., June 3,
2015; Hr'g Tr., Jan. 25, 2016; ECF No. 64-1 ("56.1 Statement"); Pl.'s Response in Opp'n to
Def.'s Rule 56.l Statement of Undisputed Material Facts, & Pl.'s Disputed Facts, Dec. 21, 2015,
ECFNo. 66.
On May 25, 2013, plaintiff reported to FDNY's Engine 225 Ladder 107, to which he had
been transferred from another firehouse. 56.1 Statement at ~~ 8-9. On his way to the locker
room, an individual appeared in the hallway and said either "hey sugar" or "what's up sugar."
Deel. of Sr. Cnsl. William A. Grey in Supp. ofDef.'s Mot. for Summ. J., Dec. 4, 2015, ECF No.
64, at Ex. A (Oct. 22, 2015 Dep. ofBaraka Smith) ("Smith Dep."), at 82:22-83:20. In the locker
room, plaintiff became involved in a physical altercation with firefighter Salvatore Corallo. 56.1
Statement at~ 17; Smith Dep. at 99:5-106:4. Plaintiff contends that, as he was changing his
clothes in the locker room, two firefighters, one of whom was firefighter Corallo, made sexual
comments directed towards him, grabbed plaintiff from behind, touched his private parts and
performed a simulated sex act. Smith Dep. at 99:5-106:4.
He alleges that he defended himself by taking a swing at firefighter Corallo and grabbed
him around his neck. Firefighter Corallo contends that plaintiff attacked him and placed him in a
chokehold. Plaintiff's own deposition testimony supports firefighter Corallo's version of the
retaliatory attack. 56.1 Statement at ii 20; Smith Dep. at 108 :2-110: 12.

3

Later that evening plaintiff was informed that he was being relieved of duty because there
was an allegation that he choked a firefighter into unconsciousness. Plaintiff then presented his
version of the events to the supervisors in the office. 56.1 Statement at ifil 31-32; Smith Dep. at
123:4-124:2. Both firefighter Corallo and Plaintiff were put on medical leave. 56.1 Statement at

ii 38.
Plaintiff does not believe his superiors had any animosity against him. Smith Dep. at
138:1-4.
Firefighter Corallo filed a criminal complaint against plaintiff at the 75th precinct the day
after the incident. Deel. of Pamela D. Hayes, Esq., Counsel to Pl. Baraka Smith, in Opp'n to
Def.'s Mot. for Summ. J., Dec. 21, 2015, ECF No. 66-1, at Ex. 18.
The incident was brought to the attention of the FDNY Equal Employment Opportunity
("EEO") Office on Monday, May 27, 2013. Plaintiff was mailed a letter from the EEO office
dated June 5, 2013; the letter requested that Plaintiff fill out an attached EEO Complaint form
concerning the incident in the locker room. 56.1 Statement at iii! 42-43; Deel. of Sr. Cnsl.
William A. Grey in Supp. ofDef.'s Mot. for Summ. J., Dec. 4, 2015, ECF No. 64, at Ex. C.
Plaintiff did not fill out the EEO Complaint Form because he "didn't trust them." Smith Dep.
186: 19-187:4.
Plaintiff was arrested following the altercation. Smith Dep. at 136:13-137:2; 153:4-9. He
testified at his deposition that although arrangements had been made for him to surrender at the
precinct, police officers came to his house and arrested him in front of his family. Based on this
behavior, plaintiff concluded that the police officers knew firefighter Corallo prior to this
incident. Id. at 153:10-25.

4

The Brooklyn District Attorney's Office charged plaintiff with a felony assault, but later
downgraded it to a misdemeanor. 56.l Statement at ii 45; Smith Dep. at 164:11-19. Plaintiff
testified at his deposition that he believes there was either a conspiracy between the district
attorney and the police or that the district attorney was racist. He bases this conclusion on the
district attorney's prosecution of him while failing to press charges against the individual or
individuals who allegedly assaulted him sexually. Smith Dep. at 159: 11-161 :25.
In July of 2015 the criminal case against Plaintiff ended with an adjournment in
contemplation of dismissal. See Hr'g Tr., Jan. 25, 2016; id. at Court Ex. 7.
Firefighter Corallo went on medical leave for three to four months. Upon his return, he
was placed on light duty status. Plaintiff was also placed on light duty status. 56.1 Statement at

ii 51; Smith Dep. at 136:4-6.
IV.

Application of Law to Facts

The case against the City of New York - the only defendant - is dismissed for the
reasons stated orally. See Hr'g Tr., Jan. 25, 2016, at p. 33,passim. Plaintiffs discrimination
claims are based on the actions of the police officers who arrested him and the assistant district
attorney who prosecuted him. The individual police officers have qualified immunity based on
the complaint Corallo made. See Cortes v. City of New York, No. 15-CV-1718, 2015 WL
7776906, at *4 (E.D.N.Y. Dec. 2, 2015) ("Qualified immunity ... will 'shield[] public officials
performing discretionary functions from civil liability insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known or insofar as it was objectively reasonable for them to believe that their acts did not
violate those rights.' This standard protects 'all but the plainly incompetent or those who
knowingly violate the law."') (quoting Bradway v. Gonzales, 26 F.3d 313, 317-18 (2d Cir. 1994)
and Malley v. Briggs, 475 U.S. 335, 341 (1986)); Neu v. Corcoran, 869 F.2d 662, 665 (2d Cir.
5

1989) ("Government officials performing discretionary functions ... are protected by qualified,
or good-faith, immunity."). The assistant district attorney, who plaintiff accuses of acting as part
of a conspiracy or being racist, has absolute immunity in prosecuting and failing to prosecute.
See Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005) ("because the initiation and

pursuit of a criminal prosecution are quintessential prosecutorial functions ... the prosecutor has
absolute immunity for the initiation and conduct of a prosecution unless [he] proceeds in the
clear absence of all jurisdiction"); Hill v. City of New York, 45 F.3d 653, 660-61 (2d Cir. 1995)
("State prosecutors are entitled to absolute immunity for that conduct 'intimately associated with
the judicial phase of the criminal process.' Thus, a district attorney is absolutely immune from
civil liability for initiating a prosecution and presenting the case at trial.") (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)).

The City is not liable. It had a strong, expressed policy not to allow the sexual touching
complained of. See Hr'g Tr., Jan. 25, 2016, at Court Exs. 1-4.
Plaintiff has failed to present any evidence beyond his own suppositions supporting his
claim that he was discriminated against because of his race. While plaintiff may have a state
case for assault, he does not have a Title VII or Section 1981 claim.
There is no valid overtime cause of action. See Hr'g Tr., Jan. 25, 2016, at 33:18-38:23,
Court Ex. 9. Records produced by defendant show that plaintiff was receiving the opportunity to
work overtime, and was being paid for that overtime.
Plaintiffs claim for denial of a promotion to lieutenant is denied. Plaintiff was being
investigated on criminal and departmental charges at the time. See Jan. 26, 2016 Letter from
Jason Shelly, Assistant Counsel, New York City Fire Department Bureau of Legal Affairs, ECF
No. 72 (identifying pending charges are reason for lack of promotion). It was appropriate to

6

keep his appointment in abeyance. There is no evidence of racial discrimination. See id (stating
that 22of25 African-American firefighters who passed the lieutenant's exam that plaintiff took
were promoted); Hr'g Tr., Jan. 25, 2016, at 42-45.

V.

Conclusion
Defendant's motion for summary judgment is granted. The case is dismissed without

costs or disbursements. The clerk is directed to enter judgment in favor of all defendants.

ck B. Weinstein
Senior United States District Judge
Date: January 27, 2016
Brooklyn, New York

7