Drake v. City of Amsterdam Police Department et al

Filing 106

DECISION and ORDER granting in part and denying in part 86 Motion for Summary Judgment; granting in part and denying in part 87 Motion for Summary Judgment; and denying 95 Motion for Summary Judgment. Plaintiffs federal-law claims under  7; 1981 (Counts One, Two, and Three), §§ 1983 and 1985 (Counts Four, Five, and Six), and Title VII (Counts Seven, Eight, and Nine) are DISMISSED; The Court DECLINES to exercise supplemental jurisdiction over plaintiffs state-law claims; and Plaintiffs state-law claims under the NYSHRL (Counts Ten, Eleven, and Twelve) are DISMISSED without prejudice to re-filing in state court.Signed by Judge David N. Hurd on 8/28/2024. (ham)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------ALAN M. DRAKE,
Plaintiff,
-v-

1:21-CV-615

CITY OF AMSTERDAM POLICE
DEPARTMENT, GREGORY J.
CULICK, JOHN THOMAS, THOMAS
HENNESSY, THOMAS NETHAWAY,
LEON PRATT, AMSTERDAM POLICE
BENEVOLENT ASSOCIATION, INC.,
and MICHAEL CINQUANTI,
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

UBA LAW FIRM, P.C.
Attorneys for Plaintiff
744 Broadway
Albany, NY 12207

VINCENT U. UBA, ESQ.

ROEMER WALLENS
GOLD & MINEAUX LLP
Attorneys for City Defendants
13 Columbia Circle
Albany, NY 12203

EARL T. REDDING, ESQ.

THE REHFUSS LAW FIRM, P.C.
Attorneys for PBA Defendants
40 British American Boulevard
Latham, NY 12110

ABIGAIL W. REHFUSS, ESQ.
STEPHEN J. REHFUSS, ESQ.

DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
On May 26, 2021, plaintiff Alan M. Drake (“Drake” or “plaintiff”), a black
police officer formerly employed by the City of Amsterdam, New York, filed
this discrimination action against defendants the City of Amsterdam Police
Department (the “City”), Chief of Police Gregory J. Culick (“Chief Culick”),
Deputy Chief & Chief of Police John Thomas 1 (“Chief Thomas”), Lieutenant
Thomas Hennessy (“Lt. Hennessy”), Lieutenant Thomas Nethaway (“Lt.
Nethaway”), the Police Benevolent Association, Inc. (the “PBA”), and former
PBA President Leon Pratt (“PBA President Pratt”). Plaintiff later amended
his pleading to name Mayor Michael Cinquanti (“Mayor Cinquanti”) as well.
Plaintiff’s twelve-count, third amended complaint asserts claims against
these eight named defendants under 42 U.S.C. § 1981 (Counts One, Two, and
Three), 42 U.S.C. §§ 1983 and 1985 (Counts Four, Five, and Six), Title VII of
the Civil Rights Act of 1964 (Counts Seven, Eight, and Nine), and New York
State Human Rights Law (Counts Ten, Eleven, and Twelve). Dkt. No. 49.

1 Defendant Thomas was a Sergeant for certain events, a Deputy Chief of Police for others, and

later became the Chief of Police for certain events near the conclusion of the narrative.
-2-

On February 28, 2024, the PBA and PBA President Pratt (collectively the
“PBA defendants”) moved under Federal Rule of Civil Procedure (“Rule”) 56
for summary judgment dismissing Drake’s operative complaint insofar as it
asserted any claims against either of them. Dkt. No. 86.
On February 29, 2024, the City, Mayor Cinquanti, Chief Culick, Chief
Thomas, Lt. Hennessy, and Lt. Nethaway (collectively the “City defendants”)
moved under Rule 56 for summary judgment dismissing Drake’s operative
complaint insofar as it asserted any claims against them. Dkt. No. 87.
On May 14, 2024, Drake opposed both of these motions and cross-moved
under Rule 56 for summary judgment in his own favor. Dkt. No. 95. In turn,
the PBA defendants and the City defendants have each opposed plaintiff’s
cross-motion and replied in further support of their own. Dkt. Nos. 103, 105.
The three motions are fully briefed and will be considered on the basis of
the submissions without oral argument.
II. BACKGROUND
This section is divided into three overlapping factual narratives, each of
which has been developed from a careful review of the movant’s respective
statement of material facts. Notably, however, all of this combined briefing
actually does a fairly poor job of structuring the story in a way that might be
comprehensible to the ordinary reader, or at least to someone who has not
spent the last few years actively involved in this civil rights litigation.
-3-

For instance, some of the basic historical facts are presented haphazardly,
introduced out of chronological order, and spread out across the hundreds of
pages of filings collectively offered by the parties. Other important factual
issues are framed in generalized terms devoid of the kind of baseline details
ordinarily needed to make meaningful legal analysis possible: the who, what,
where, and when of the distinct event or events in question.
As a result of this and other, related organizational shortcomings, Drake’s
statement of material facts—which runs to fifty-seven full pages—sometimes
reads more like a seriatim airing of grievances stored up over his decade-plus
on the job than as a focused, detail-oriented narrative about how he suffered
one or more instances of actionable racial mistreatment that can be traced to
one or more of the named defendants during his tenure as one of the only
black officers in the City’s police department. The same basic problem is true
of defendants’ filings: material facts are presented out of chronological order,
often in an argumentative form, and sometimes without necessary context.
The factual narrative offered by each of the three movants has been reorganized into a more coherent form and will be dutifully recounted in this
section. In so doing, the Court has tried to excise or omit facts that have been
offered by a party but are clearly unsupported by the record, or those that

-4-

might well exist somewhere in the discovery record but have been completely
improperly cited by the movant. 2
A. Plaintiff’s Statement of Material Facts
The first narrative to be recounted is plaintiff’s. It is the longest and most
comprehensive of the parties’ three offerings. Defendants have responded to
plaintiff’s fifty-seven-page statement of material facts with separate, onehundred-plus-page-long responses that dispute most of plaintiff’s version of
events. Dkt. No. 103-3 (PBA defendants); Dkt. No. 105-1 (City defendants).
Accordingly, this section of the factual background credits plaintiff’s offering
(at least to the extent it is properly supported with specific record citations)
while noting only a subset of the particularly relevant disputed matters.
On January 5, 2009, the City’s police department hired Drake, a black
man, as a police officer. Pl.’s Facts, Dkt. No. 95-97 ¶¶ 3, 6. The City’s police
department is small—it has just thirty-nine full-time officers. Id. ¶ 61. And
from the date of his hiring until September of 2016, plaintiff was the only
black employee in the department. Id. ¶ 62.

2 The rules governing summary judgment routinely trip up litigants. See, e.g., Krul v. DeJoy, –

F. Supp. 3d–, 2023 WL 8449589, at *14 (N.D.N.Y. Dec. 6, 2023) (describing basic operation of this
District’s Local Rules and summarizing various iterations of party-driven error). In this case, the
most obvious shortcoming (but not the only one) is plaintiff’s inconsistent adherence to Local Rule
56.1(a) and (b), both of which require a specific citation to the record where a certain fact (or factual
issue) is established. Only some of plaintiff’s citations are “specific.” Many others rely generally on
non-specific citations to entire documents, such as plaintiff’s forty-three page declaration. See, e.g.,
Dkt. No. 95-97 ¶ 51 (supporting second alleged fact dispute with a general citation to a declaration
that is forty-three pages in length).
-5-

Drake came to the job with prior law enforcement experience: he had been
working as a deputy for the Montgomery County Sheriff’s Department. Pl.’s
Facts ¶ 5. According to plaintiff, Lt. Nethaway encouraged him to apply and
offered him the job “on the spot.” Id. But shortly after he began working for
the City, plaintiff was told by unnamed white officers that he had only been
hired because he was a black man. Id. ¶ 6. These unnamed officers called
him a “show piece” and told him that the City only hired him because they
wanted to look more inclusive during a then-pending racial discrimination
suit. Id. According to plaintiff, these unnamed officers would “constantly
harass” him “because of what he did or wore in expressing his culture.” Id.
As a new hire, Drake was assigned to complete his field training under the
supervision of Lt. Nethaway. Pl.’s Facts ¶ 7. However, Lt. Nethaway did not
provide plaintiff with very much training. He did not train plaintiff “on how
to handle basic complaints and the different paperwork utilized by” the police
department. Id. ¶ 8. According to plaintiff, Lt. Nethaway never completed
certain written evaluations of plaintiff’s performance, either. Id. ¶¶ 9–10.
At the conclusion of this inadequate training, Drake was assigned to work
the “night shift” desk by himself. Pl.’s Facts ¶ 11. Plaintiff learned through
the rumor mill that some unnamed white officers in the department called
him “stupid” and “not smart.” Id. ¶ 12. According to plaintiff, Chief Culick
denied plaintiff the opportunity to participate in certain unspecified training
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and advancement schools that were periodically offered to other, unnamed
police officers. Id. ¶¶ 13–14, 15–16, 19–20.
At some point, non-party then-Chief of Police Brownell told Drake that
“the target on [his] back is a lot bigger . . . because of [p]laintiff being a Black
police officer,” or words to that effect. Pl.’s Facts ¶ 22. Plaintiff was stunned
and highly offended by this statement. Id. ¶ 23. Plaintiff contends that Chief
Brownell and other, unnamed white officers “continuously, conspicuously,
and proudly display[ed] [w]hite supremacist symbols.” Id. ¶ 24. 3 Plaintiff
further contends that unnamed co-workers “widely addressed” him as “hot
chocolate.” Id. ¶ 43. He found this racially offensive. Id. ¶ 44. “At various
times and on numerous occasions,” Drake complained to the City and to the
PBA leadership about constant or ongoing racial harassment. Id. ¶¶ 33–35.
Drake contends that unnamed department officials instituted the “Drake
rule” (elsewhere called the “Drake rules”) which included a “racial stereotype”
that “if anything goes wrong at the workplace blame it on Drake, say that
Drake did it, or that it is Drake’s fault,” or similar words to that effect. Pl.’s
Facts ¶ 45.

3 Drake contends that PBA President Pratt has an “SS” tattoo. Pl.’s Facts ¶ 29. Plaintiff

contends that this tattoo is a symbol of white supremacy and highly offensive to him. Id. ¶¶ 29–31.
Pratt admits that he has a tattoo with the letters “SS,” denies that it is a Nazi symbol, and contends
that it represents the initials of his two children. PBA Defs.’ Resp., Dkt. No. 103-3 ¶ 29. According
to plaintiff, then-Chief Culick did not take disciplinary action against Pratt for his “SS” tattoo even
though the tattoo violated the department’s written anti-discrimination policy. Pl.’s Facts ¶¶ 32, 36.
-7-

Drake contends that he was not allowed to exercise certain benefits or
privileges of his seniority over unnamed white officers. Pl.’s Facts ¶ 47. In
January of 2016, plaintiff had attained seniority over some more junior white
police officers. Id. ¶ 50. Ordinarily, this would have entitled him to choose a
preferred desk. Id. ¶¶ 48–50. But someone in the department changed the
shift rules and deprived him of this seniority benefit. Id. ¶ 50. According to
plaintiff, this change in the “preferred desk” rules was part of the so-called
“Drake rule” or “Drake rules.” Id. Plaintiff asserts that he witnessed a
junior white officer named Kyle Harris receive the benefit of the “old” desk
rule on September 20, 2018 and November 1, 2018. Id. Plaintiff reported
this to PBA officials and to his supervisors, who did not act. Id. ¶¶ 53–56.
On October 6, 2016, Lt. Nethaway and Lt. Thomas began investigating
Drake for allegedly sexually assaulting a woman named Christina Moody,
who was known to use several aliases. Pl.’s Facts ¶¶ 127–130. Plaintiff, for
his part, acknowledges the accusation and the investigation, but contends
that the investigation was conducted in an irregular manner and produced
contradictory results. Id. ¶¶ 132–34.
In February of 2017, a non-party sergeant named DiCaprio threatened to
write Drake up for wearing a “Columbia brand charcoal gray winter boot”
and told plaintiff “that his boots [were] a big topic of discussion at [ ] staff
meetings upstairs.” Pl.’s Facts ¶ 25. Plaintiff was “greatly troubled” by this
-8-

information and “highly offended” by DiCaprio’s remarks. Id. ¶ 26. Plaintiff
reported this to PBA President Pratt, who did not act. Id. ¶¶ 27–28.
On November 2, 2017, then-Chief Culick told Drake he was being placed
on immediate suspension without pay. Pl.’s Facts ¶ 107. Plaintiff had never
been the subject of prior discipline. 4 Id. ¶ 65. Thereafter, on November 2 and
November 6, 2017, two disciplinary meetings were held. Id. ¶ 78. Plaintiff
retained his own counsel on an emergency basis. Id. Plaintiff contends that
he did not receive any advance written notice of these disciplinary meetings,
which was required by the Collective Bargaining Agreement and New York
Civil Service Law. Id. ¶¶ 79, 82. Plaintiff also contends that defendants gave
him “little to no information or evidence forming the basis of the disciplinary
allegations.” Id. ¶¶ 83–84. According to plaintiff, defendants pressured him
into signing a “Last Chance Agreement.” Id. ¶¶ 85–105.
Drake signed this Last Chance Agreement on November 6, 2017. Pl.’s
Facts ¶ 122. As relevant here, the Last Chance Agreement provided that:
Should a jointly selected fair and impartial final and
binding arbitrator determine that Alan M. Drake is
guilty of ANY major and intentional violation of the
Amsterdam Police Department Rules and Regulations
or Policies and Procedures, said determination will
result in [his] immediate dismissal from duty.
4 Elsewhere, however, plaintiff admits that he received prior “counseling memos.” Pl.’s Resp. to

PBA Defs.’ Facts, Dkt. No. 95-6 ¶ 7. Plaintiff “declares” that the department “issued [the] majority of
the counseling memos in furtherance of their unlawful discrimination.” Id. This framing tends to
indicate that at least some non-zero number of these counseling memos were valid discipline. See id.
-9-

See Dkt. No. 95-82 at 21; Dkt. No. 95-29. The Last Chance Agreement also
required plaintiff to take psychological counseling, which he completed. Pl.’s
Facts ¶¶ 123–24. Thereafter, plaintiff returned to work. Id. ¶ 126.
Drake contends that this Agreement is missing some signatures and was
procured in an irregular fashion. 5 Pl.’s Facts ¶¶ 136–148. Plaintiff identifies
disciplinary incidents involving non-parties Lisicki, Lochner, and Santiago as
well as defendants PBA President Pratt, Lt. Hennessy, and Chief Thomas
from 2001, 2002, 2009, 2013, 2018, 2019, and 2020. Id. ¶¶ 150–156, 158–183,
186–191. According to plaintiff, these white officers were treated differently
and received better or more thorough representation from the PBA. See id.
On June 3, 2020, Drake and his wife sent an e-mail to the newly elected
mayor in which they complained about the “systemic racism” the City had
“perpetrated” against plaintiff. Pl.’s Facts ¶ 198. According to this e-mail,
plaintiff, then a senior police officer at the department, was being “overlooked
by the administration and the Detective Bureau for training, professional
development, special details, and assignments compared to his white junior
[police officer] counterparts.” Id. ¶ 17. Plaintiff contends he had reported
this harassment to other municipal officials including “his Sergeants, [Chief]

5 Plaintiff contends that he did not receive a copy of the formal Notice of Discipline that led to

this Last Chance Agreement until January of 2021, when it was disclosed to him in connection with
a different disciplinary proceeding. Pl.’s Facts ¶ 108. Plaintiff contends that it was clear that these
charges were improper, time-barred, and the product of race-motivated deception. Id. ¶¶ 109–121.
- 10 -

Culick, [non-party] Mayor Thane, and various successive PBA Presidents
including [PBA President] Pratt,” but that each of these officials had failed to
act. Id. ¶¶ 192–197.
On June 5, 2020, Mayor Cinquanti appointed Chief Thomas to be the new
Chief of Police. Pl.’s Facts ¶ 200. Mayor Cinquanti talked to Chief Thomas
about Drake and his wife’s e-mail. Id. ¶ 201. Thereafter, Mayor Cinquanti
recommended that plaintiff and his wife sit down with the new Chief of Police
to discuss the issues raised in their e-mail. Id. ¶ 202. But plaintiff and his
wife replied to Mayor Cinquanti and told him that they did not want to sit
down with the new Chief of Police at that time. Id. ¶ 203.
On July 9, 2020, non-party PBA President Aurelio Fiorillo texted Drake a
message stating that Chief Thomas wanted to talk with him anyway. Pl.’s
Facts ¶ 204. As plaintiff explains, he knew this discussion was going to be
about certain “de minimis incidents” that happened on December 19, 2019
and April 6, 2020. Id. ¶ 205. According to plaintiff, these two “de minimis
incidents” had already been handled under the previous Chief of Police. Id.
Drake soon met with Chief Thomas. According to plaintiff, Chief Thomas
“made it clear that he want[ed] [p]laintiff gone.” Pl.’s Facts ¶ 206. Plaintiff
contends that Chief Thomas initially offered to suspend plaintiff, but plaintiff
refused because, in his view, the two “de minimis” incidents had already been
handled under the prior Chief of Police. Id. ¶¶ 207–209.
- 11 -

On December 23, 2020, Drake received a Notice of Discipline that included
four charges of misconduct. Dkt. No. 95-44. Plaintiff was suspended. Pl.’s
Facts ¶¶ 18, 208. Thereafter, the parties selected Arbitrator Timothy Taylor
(the “Arbitrator”), who is black, to hear the dispute. Dkt. No. 95-82. The
Arbitrator conducted a hearing remotely on January 29, 2021, and February
10, 2021. 6 Id. Thereafter, the parties submitted post-hearing briefs. Id.
In total, the Notice of Discipline charged Drake with misconduct arising
from four dates.
Charge One arose from an incident on December 20, 2019:
Specification 1: On December 20, 2019, at
approximately 0840, you responded as a backup officer
to assist with traffic control relative to a motor vehicle
accident which occurred on Church Street. You
responded to the scene of the accident, forcing your
vehicle through traffic which was still attempting to
yield to emergency lights at the scene of the accident.
During your attempt to force your way through traffic,
the passenger side view mirror of your vehicle struck
the driver’s side tail lamp of Mr. Sean Piasecki’s 2020
Toyota Tundra truck, causing damage both to Mr.
Piasecki’s truck and the police department vehicle you
were operating.
You left the scene of the accident and did not make an
effort to immediately speak to the operator of the
truck, Mr. Piasecki, to acknowledge the fact that you
hit his vehicle. You also did not advise dispatch or
your supervisor, Sergeant Jacob Gifford[,] that the
6 Plaintiff asserts various irregularities by the PBA and by Chief Thomas in connection with

this arbitration. Pl.’s Facts ¶¶ 271–291. Plaintiff also asserts that Mayor Cinquanti had an
obligation to conduct his own investigation rather than rely on Chief Thomas. Id. ¶¶ 290–293.
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accident had occurred as required by then applicable
RR06-023(4).
Your failure to timely report the accident to dispatch
or your supervisor constitutes a violation of then
applicable RR06-023(4) and misconduct under Section
75 of the New York State Civil Service Law. Your
failure to take reasonable care to avoid damaging a
department vehicle constitutes a violation of then
applicable RR06-023(6) and misconduct under Section
75 of the New York State Civil Service Law.
Specification 2: On December 20, 2019, at
approximately 0840, you responded as a backup officer
to assist with traffic control relative to a motor vehicle
accident which occurred on Church Street. You
responded to the scene of the accident, forcing your
vehicle through traffic which was still attempting to
yield to emergency lights at the scene of the accident.
During your attempt to force your way through traffic,
the passenger side view mirror of your vehicle struck
the driver’s side tail lamp of Mr. Sean Piasecki’s 2020
Toyota Tundra truck, causing damaging both to Mr.
Piasecki’s truck and the police department vehicle you
were operating.
You left the scene of the accident and did not make an
effort to immediately speak to the operator of the
truck, Mr. Piasecki, to acknowledge the fact that you
hit his vehicle.
Your failure to speak to Mr. Piasecki after hitting his
vehicle resulted in Mr. Piasecki’s contacting Detective
Chris Cuddy regarding the accident who, in turn,
notified Sergeant Jacob Gifford. Your failure to
immediately speak to Mr. Piasecki at the accident
scene depicted the police department in an
unfavorable light, constituting a violation of then
applicable RR06-010(3). Your actions also constitute
misconduct under Section 75 of the New York State
Civil Service Law.
- 13 -

Dkt. No. 95-82 at 2 –4.
Drake acknowledges this December 20, 2019 traffic incident occurred but
contends that his former supervisor, non-party Sergeant Gifford, conducted
an investigation and concluded that plaintiff was not driving in a “wanton or
reckless” manner and that plaintiff did not intentionally “leave the scene” of
the incident. Pl.’s Facts ¶ 209.
Charge Two arose from an incident on April 6, 2020:
Specification 1: On February 15, 2016, you received a
counselling memorandum, attached hereto and a
made a part hereof, for substandard performance
while on desk duty. On April 6, 2020 at approximately
12:04 p.m., while assigned to desk duty, you took a
telephone call from Ann Ramdass-Hogue, a nursing
supervisor at St. Mary’s [Hospital]. She reported that
a female patient was being treated in the E.R. because
of her exposure to someone who had COVID-19. She
further reported that the woman grew impatient and
left the E.R. against medical advice, allegedly
intentionally coughing on people on her way out,
without wearing a mask. Hogue stated she had
witnesses to what had occurred.
While you took all of the caller’s information, you did
not ask her if she wished to press charges against the
patient if warranted. You also did not generate a
blotter entry or dispatch an officer to further interview
Nurse Ramdass-Hogue, investigate the complaint and
speak with witnesses. The day after the call from
Nurse Ramdass-Hogue was received, the CEO of St.
Mary’s Hospital contacted then-Deputy Chief Thomas
and expressed his concern that no one from the
Amsterdam Police Department came to the hospital
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the previous day to follow up on the call and
investigate the matter.
Your actions constitute a violation of then applicable
RR06-037(5), Inattention to Duty, and then applicable
RR067-037(52), Failure to take, record, and act upon
complaints except as prescribed by department
procedures, and misconduct.
Your failure to take any action on the complaint you
received resulted in St. Mary’s Hospital’s CEO
contacting the Department the following day, April 7,
2020, to ask why not action was taken on Ms.
Ramdass-Hogue’s call, in light of the pandemic and the
potential impact on public health. Your failure to take
any action regarding Ms. Ramdass-Hogue’s call
caused the Department’s reputation to be adversely
affected. Your conduct constitutes a violation of then
applicable RR06-017 and misconduct under Section 75
of the New York State Civil Service Law.
Dkt. No. 95-82 at 4–5.
Drake acknowledges this April 6, 2020 call but contends that the nurse
told him “she was just calling to make a report of the incident” and that, in
light of the uncertainty from the new COVID-19 pandemic, then-Chief Culick
ordered police officers to “handle anything they could over the phone instead
of going to addresses.” Pl.’s Facts ¶¶ 211–212. Plaintiff contends that white
officers were not issued discipline of this nature. Id. ¶ 213. Plaintiff further
contends that non-party Sergeant Gifford conducted an investigation and
concluded that plaintiff should only receive “written counseling” rather than
formal discipline. Id. ¶¶ 214–215.
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Charge Three arose from an incident on September 3, 2020:
Specification 1: On September 3, 2020, you were
dispatched at 11:28 a.m. to a call at 18 Garden Street
in the City of Amsterdam. The call involved a
domestic incident regarding a mother and daughter
arguing over a duffel bag and was made by the
daughter. You did not timely respond to the call. At
11:56 a.m., a second call came in from the first caller’s
mother, wondering if the police were going to respond
because the mother had an injury and had taken a
picture of an injury to her arm. At 11:58 a.m., the
dispatcher called you again, inquired as to your
expected time of arrival[,] and informed you that there
were now possible injuries. You responded that you
would be there in 60 seconds. You then called out at
12:00 p.m.
In your written response regarding the call, you stated
you were talking to an employee from Herkimer
Industries regarding supplies for the police
department and making a call to your doctors between
the time of the initial call and when you ultimately
responded to the call. When you received the initial
call dispatching you at 11:28 a.m., you did not inform
the dispatcher of any reason why your response to the
call would be delayed or that you were unable to
respond to the call for some reason(s).
Your report narrative regarding the call states that
there were no injuries when in fact there [was] an
injury to the left arm of Ms. Taglialatela [who] was[ ]
the original complainant’s mother. The injury was
allegedly caused by one of the other parties involved in
the call pushing Ms. Taglialatela into the wall. Your
narrative report also did not reflect that information
even though it was provided to you by Ms. Taglialatela
at the scene.
Your narrative report therefore
contained false information and was incomplete in
that it did not contain all relevant information
regarding the call.
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Your conduct in failing to timely respond to a call for
service and submitting a false and inaccurate report
violates: Penal Law 175.30, Offering False Instrument
for Filing in the Second Degree; Amsterdam Police
Department Policy 309.3, Response to Calls;
Amsterdam Police Department Policy 323.4, Report
Preparation; Amsterdam Police Department Policy
320.5.7(b), Unsatisfactory Work Performance and
Delay in Performing Work; Amsterdam Police
Department Policy 320.5.8(a), Misrepresenting
Material Facts; Amsterdam Police Department Policy
320.5.9(m), On-Duty Conduct Unbecoming of an
Officer; and constitutes misconduct under Section 75
of the New York State Civil Service Law.
Dkt. No. 95-82 at 5–6.
Drake acknowledges this September 3, 2020 dispatch, concedes that he
was on the phone with a salesman for the police department and on hold with
his doctor’s office, but contends that the dispatcher initially flagged it as a
non-emergency call. Pl.’s Facts ¶¶ 226, 228–229. According to plaintiff, he
responded promptly when he learned new information from the dispatcher
about the possible existence of injuries. Id. ¶¶ 231–232. Plaintiff contends
that a white police officer named Seelow also heard the call on the radio and
did not respond until he learned the updated information of possible injuries
at the scene, either. Id. ¶¶ 233–34. Plaintiff contends that there is no clear
departmental rule or policy about how quickly an officer must respond to a
dispatch call. Id. ¶¶ 236–241. According to plaintiff, Chief Thomas and Lt.

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Hennessy did not discipline Seelow for the exact same conduct even though
they alleged formal discipline against plaintiff. Id. ¶¶ 223–224.
Charge Four arose from an incident on November 22, 2020:
Specification 1: On November 22, 2020, you were
dispatched to a 911 open line call to 72 Bunn Street at
12:45 p.m. You did not arrive at the scene and call out
until 1:03 p.m. It took you eighteen (18) minutes to
respond to the call, an excessive amount of time.
Your delay in responding to the call constitutes a
violation of: Amsterdam Police Department Policy
309.2, Policy; Amsterdam Police Department 309.3,
Response to Non-Emergency Calls; Amsterdam Police
Department Policy 320.5.7(b), Unsatisfactory Work
Performance and Delay in Performing Work;
Amsterdam Police Department Policy 320.5.9(m), OnDuty Conduct Unbecoming of an Officer; and
constitutes misconduct under Section 75 of the New
York State Civil Service Law.
Dkt. No. 95-82 at 6 –7
Drake acknowledges that he was dispatched to this call, but contends that
he responded to the location, concluded that there was no one in the area in
need of services, updated dispatch with this information, and then completed
the appropriate paperwork. Pl.’s Facts ¶ 218. According to plaintiff, Chief
Thomas never asked plaintiff why it took him eighteen minutes to report
back to dispatch about this so-called “hangup” call. Id. ¶ 219.
On April 26, 2021, the Arbitrator found Drake not guilty of Charges One,
Two, and Four. Dkt. No. 95-82 at 17. However, the Arbitrator found plaintiff
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guilty of Charge Three; i.e., failing to respond promptly to the dispatch call on
September 3, 2020 where a mother and daughter argued over a bag. Id. at
19–20. As noted supra, plaintiff acknowledges that he initially chose to wait
on hold with his doctor and continue speaking with the salesperson instead of
responding to this dispatch call. But plaintiff contends that the dispatcher
told him that he should not rush to the call. See Pl.’s Facts ¶ 267. According
to plaintiff, this dispatcher should have been called to testify as a witness at
the arbitration proceeding because this testimony would have justified
plaintiff’s delay. Id. ¶¶ 267–269.
In any event, because the 2017 Last Chance Agreement provided that any
future violation of departmental rules or policies would lead to plaintiff’s
dismissal, the Arbitrator found that the appropriate penalty was immediate
termination from duty. Dkt. No. 95-82 at 21–22; Pl.’s Facts ¶ 64.
B. City Defendants
The second narrative comes from the City defendants. Factual assertions
that plaintiff has validly placed in dispute—with “specific” citations to the
record in accordance with the Local Rules—have been noted. But denials
accompanied by general citations to substantial portions of the record—such
as the repeated instances in which plaintiff issues a denial supported only by
“Drake Declaration and cross motion papers”—without any pinpoint citations
to those large documents—have not been noted and will be deemed admitted
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for the purpose of resolving the City defendants’ motion. The same is true of
“denials” that include pinpoint citations, but fail to place the offered fact in
dispute while raising other, tangentially related facts. See, e.g., Pl.’s Resp. to
City Defs.’ Facts, Dkt. No. 95-5 ¶ 115 (purporting to “deny” the assertion that
attorney Keach participated in a certain meeting by stating that plaintiff
“had no information to give Mr. Keach”).
The City’s police department consists of thirty-nine full-time police officers
and two call dispatchers. City Defs.’ Facts ¶¶ 24–25. The department hired
Drake on January 5, 2009 to be a patrol officer after Lt. Nethaway told him
to apply. Id. ¶¶ 33, 35. Plaintiff had prior law enforcement experience with
the Village of Canajoharie police department and the Montgomery County
Sheriff’s Department. Id. ¶¶ 34, 44–45. Plaintiff received a copy of the City’s
employee handbook, but he did not receive a copy of its policy on harassment
prevention. Id. ¶ 35; Pl.’s Resp. to City Defs.’ Facts ¶ 37.
Shortly after being hired, Drake began working the “day shift” under the
supervision of Lt. Nethaway, who was assigned to be plaintiff’s “field training
officer.” City Defs.’ Facts ¶¶ 38, 55. The “day shift” and “night shift” were
each twelve-hour shifts that ran from about 6:00 or 7:00 a.m. to 6:00 or 7:00
p.m. Id. ¶¶ 40–42. Since plaintiff had already attended the police academy,
he knew the basics of being a police officer. Id. ¶ 43. But plaintiff says that
he should have received more specific training about the City’s policies and
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practices. Pl.’s Resp. to City Defs.’ Facts ¶ 42. For instance, plaintiff did not
know how to take witness statements in accordance with the department’s
particular policy. Id. ¶ 48. According to plaintiff, Lt. Nethaway gave him
”little to no training.” Pl.’s Resp. to City Defs.’ Facts ¶¶ 55, 58.
Drake’s training under Lt. Nethaway lasted about a month or two. City
Defs.’ Facts ¶¶ 56–57. Afterward, plaintiff was assigned to work the “night
shift” desk “all by himself,” which was difficult for him to do without proper
training. Pl.’s Resp. to City Defs.’ Facts ¶ 39. Thereafter, plaintiff submitted
a written request to be a “certified seat belt officer,” but he was not selected
for this training opportunity. Id. ¶ 72. No white police officers were selected
for this training opportunity, either. See id.
On another occasion, Drake went to a different training in Johnstown, but
it was cancelled. Pl.’s Resp. to City Defs.’ Facts ¶ 77. Plaintiff was paid for
his time, but felt embarrassed about being sent to a canceled event. Id. ¶ 78.
Plaintiff did not request certain other trainings, but records show that white
police officers received “substantially more” opportunities. Id. ¶ 79. During
his tenure with the City, plaintiff also sat for two Civil Service exams, which
are required for promotion. City Defs.’ Facts ¶¶ 49–53. Plaintiff failed both
exams. Id. ¶ 54.
Drake was sometimes called “hot chocolate” by some unnamed officers
around the police department. Pl.’s Resp. to City Defs.’ Facts ¶ 94. But the
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City defendants deny that they used the phrase the “Drake rule” or the
“Drake rules.” City Defs.’ Facts ¶¶ 80–84.
Drake contends that the City defendants “instituted, implemented, and
perpetuated a racially hostile work environment which fostered the
implementation of the ‘Drake Rule.’” Pl.’s Resp. to City Defs.’ Facts ¶¶ 80–
84. The City defendants deny that any members of the police department
called plaintiff a “show piece,” “stupid,” or “not smart.” City Defs.’ Facts ¶¶
88–91. However, plaintiff contends that “Pratt and other [City] employees
made similar comments” and claims that employees were “spreading word
behind [his] back.” Pl.’s Resp. to City Defs.’ Facts ¶¶ 88–91.
In 2016, Chief Culick directed Lt. Nethaway and Chief Thomas to conduct
an investigation into a social media post that suggested Drake might have
“propositioned, asked out, threatened or sexually harassed” one or more local
women. City Defs.’ Facts ¶¶ 95–96. They obtained several statements from
women who detailed their interactions with plaintiff. Id. ¶ 97. For instance,
one woman accused plaintiff of stopping her and “conducting a very slow pat
down of her crotch area.” Id. ¶ 98. Plaintiff denies the veracity of some of
these statements but admits that he had a “relationship” with two different
women “all during his off-duty hours.” Pl.’s Resp. to City Defs.’ Facts ¶ 101.
Chief Culick ran this information by the District Attorney, who elected not
to pursue charges. City Defs.’ Facts ¶ 99; Pl.’s Resp. to City Defs.’ Facts ¶ 99.
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But Chief Culick decided to pursue departmental discipline. City Defs.’ Facts
¶ 108. Thereafter, Chief Culick, plaintiff, and others held a meeting about
the allegations. Id. ¶¶ 110, 125. Plaintiff’s attorney, Elmer Keach,
participated by telephone. Id. ¶ 111. Attorney Rocco DePerno, a PBA
representative, was also present for this meeting. See id. ¶ 112.
Drake contends that attorney DePerno and other PBA representatives,
such as PBA President Pratt, were unhelpful. Pl.’s Resp. to City Defs.’ Facts
¶ 113. Although plaintiff contends that internal discipline “was time barred
as at the time Defendants disciplined” him, Pl.’s Resp. to City Defs.’ Facts ¶¶
101–104, and claims that defendants threatened him with criminal charges
and other penalties, id. ¶¶ 116–118, he admits that he signed a Last Chance
Agreement on November 6, 2017. 7 City Defs.’ Facts ¶¶ 105, 126. Lt.
Nethaway retired in June of 2018. Id. ¶ 32.
On January 1, 2020, Mayor Cinquanti assumed office and took charge of
the police department. City Defs.’ Facts ¶ 29. Chief Culick retired in June of
that year. Id. ¶ 27. Soon after, Mayor Cinquanti appointed Chief Thomas to
replace him. Id. ¶ 30.
On December 23, 2020, Drake received a Notice of Discipline. City Defs.’
Facts ¶ 132. Plaintiff knew the Last Chance Agreement was still in effect,

7 A white officer, Lt. Hennessy, signed a similar stipulation of settlement on December 18, 2002.

City Defs.’ Facts ¶¶ 128–129.

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but declined an offer to settle the charges. Id. ¶¶ 133–134. The matter went
to an arbitration hearing. Id. ¶ 137–138. At the arbitration hearing, plaintiff
was represented by attorney James Tuttle. Id. ¶ 141. But plaintiff did not
discuss the case with attorney Tuttle before the hearing. Pl.’s Resp. to City
Defs.’ Facts ¶ 142.
Drake testified at the hearing. City Defs.’ Facts ¶ 142. There, plaintiff
admitted that he failed to respond to a certain dispatch call because he was
holding on telephone calls with a salesperson and with his doctor’s office. Id.
¶ 144. Accordingly, the arbitrator found plaintiff guilty of charge number
three. Id. ¶ 149. Because the Last Chance Agreement was in effect, the
arbitrator ordered plaintiff dismissed from duty effective April 26, 2021. Id.
¶¶ 154–155.
C. PBA Defendants
The third and shortest narrative comes from the PBA defendants. As
before, assertions that plaintiff has validly placed in dispute—with “specific”
citations to the record in accordance with the Local Rules—have been noted.
But denials accompanied by general citations to substantial portions of the
record—such as the frequent instances in which plaintiff issues a denial
supported by, inter alia, “Drake Declaration and exhibits, Uba declaration
and exhibits” without any pinpoint citations to those documents—have not
been noted and will be deemed admitted for the purpose of resolving the PBA
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defendants’ motion. The same is true of the “denials” that include pinpoint
citations, but fail to actually place the offered fact in dispute while merely
raising other, possibly tangentially related facts. See, e.g., Pl.’s Resp. to PBA
Defs.’ Facts ¶ 9 (purporting to “deny” the assertion that PBA President Pratt
contacted an attorney to represent plaintiff by stating that the proposed
attorney had an undisclosed conflict of interest).
In 2017, Pratt was a detective in the police department. PBA Defs.’ Facts,
Dkt. No. 86-2 ¶¶ 1, 4–5. He was also the PBA President. Id. In October of
that year, he learned from Chief of Police Culick that plaintiff “was about to
be brought up on charges regarding serious allegations of misconduct by
numerous women.” Id. ¶ 6. Plaintiff had received previous “counseling
memos” for other on-duty conduct. Id. ¶ 7. Plaintiff admits that he received
these memos but contends that they were products of discrimination rather
than valid discipline. Pl.’s Resp. to PBA Defs.’ Facts, Dkt. No. 95-6 ¶ 7.
Plaintiff further contends that the charges levied against him in 2017 were
“time barred, fraudulently obtained, and without merit.” Id. ¶ 8.
Drake retained attorney Elmer Keach to assist him. Pl.’s Resp. to PBA
Defs.’ Facts ¶ 24. Thereafter, plaintiff attended an “informal meeting” with
Chief Culick. PBA Defs.’ Facts ¶ 10. PBA President Pratt brought in a PBA
attorney named Rocco DePerno to help plaintiff out. Id. ¶ 9. But plaintiff
claims that attorney DePerno was laboring under an undisclosed conflict of
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interest. Pl.’s Resp. to PBA Defs.’ Facts ¶ 9. According to plaintiff, he
repeatedly sought to limit attorney DePerno’s involvement because he
believed that attorney DePerno and PBA President Pratt were not acting
with plaintiff’s best interests in mind. See, e.g., id. ¶ 20.
At this meeting, Drake was advised of his rights under the police union
contract as well as his rights and obligations under certain recently adopted
legal developments. PBA Defs.’ Facts ¶¶ 12, 14. Plaintiff was also advised
that certain statutes of limitation might not apply if the conduct of which he
stood accused rose to the level of a crime. Id. ¶ 15.
At this meeting, Chief Culick questioned Drake. Pl.’s Resp. to PBA Defs.’
Facts ¶ 13. Thereafter, attorney DePerno spoke with plaintiff. PBA Defs.’
Facts ¶ 21. According to plaintiff, attorney DePerno “kept pressuring”
plaintiff to sign a Last Chance Agreement to resolve the charges. Pl.’s Resp.
to PBA Defs.’ Facts ¶ 21.
A second meeting occurred. PBA Defs.’ Facts ¶ 25. Drake, Chief Culick,
PBA President Pratt, attorney DePerno, and attorney Keach participated in
the meeting. Id. ¶¶ 25–27. Pl.’s Resp. to PBA Defs.’ Facts ¶ 25. At that
time, the parties negotiated the terms of the Last Chance Agreement. PBA
Defs.’ Facts ¶¶ 27–28, 30, 32–34. Plaintiff and attorney Keach reviewed the
Last Chance Agreement and signed it. Id. ¶¶ 27–28, 30–31. Plaintiff never
sought to overturn or challenge the Last Chance Agreement. Id. ¶ 36. PBA
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President Pratt retired from the department and from the PBA a few years
later. PBA Defs.’ Facts ¶ 3.
In Fall of 2020, Drake was served with a Notice of Discipline regarding
several on-duty incidents. PBA Defs.’ Facts ¶ 42. The PBA retained attorney
James Tuttle to represent plaintiff. Id. ¶ 45. The matter went to arbitration,
where the parties presented evidence. Id. ¶ 47. Plaintiff testified on his own
behalf, but contends that a dispatcher named Stephanie Gonzales should
have been called as a witness. Id. ¶ 47; Pl.’s Resp. to PBA Defs.’ Facts ¶ 47.
On April 26, 2021, the Arbitrator found Drake guilty of failing to respond
promptly to a call but not guilty of the three other charges that were set out
in the 2020 Notice of Discipline. PBA Defs.’ Facts ¶¶ 48–49. Based on the
Last Chance Agreement, the Arbitrator ordered plaintiff’s termination from
duty. Id. ¶ 50.
III. LEGAL STANDARD
The entry of summary judgment is warranted “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). An issue of fact is
material for purposes of this inquiry if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). And a dispute of material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.
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In assessing whether there are any genuine disputes of material fact,
“a court must resolve any ambiguities and draw all inferences from the facts
in a light most favorable to the nonmoving party.” Ward v. Stewart, 286 F.
Supp. 3d 321, 327 (N.D.N.Y. 2017) (citation omitted). Summary judgment is
inappropriate where a “review of the record reveals sufficient evidence for a
rational trier of fact to find in the [non-movant’s] favor.” Treglia v. Town of
Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted).
In making this assessment, “a reviewing court must evaluate each party’s
motion on its own merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under consideration.” Ward v.
Stewart, 286 F. Supp. 3d 321, 327 (N.D.N.Y. 2017) (cleaned up). The court
must keep in mind that it is not obligated to grant judgment as a matter of
law to one side or the other. See id.
IV. DISCUSSION
Drake’s third amended complaint alleges that he was hired by the City’s
police department in early 2009, at a time when the City was in the midst of
defending itself against a different discrimination lawsuit. The City’s police
department is relatively small and, for almost all of plaintiff’s twelve-year
tenure, populated entirely by white police officers and white supervisors.
Drake, who is a black man, alleges that he was subjected to racist remarks
and instances of disparate racial mistreatment (some of which were called
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the “Drake rule” or “Drake rules”) that other, similarly situated (but mostly
unnamed and undescribed) white police officers did not have to endure.
In 2017, Drake alleges that some of the named defendants subjected him
to an improper or unfair disciplinary proceeding without appropriate union
representation or due process protections. As a result of these alleged events,
plaintiff was forced to sign a “Last Chance Agreement” that no white officer
had ever been “forced” to sign.
Several years later, in December of 2020, Drake and his wife sent an email to the newly elected mayor to alert him to the racial mistreatment that
plaintiff had endured, and continued to endure, inside the police department.
The newly elected mayor shared this e-mail with his newly promoted chief of
police, who allegedly retaliated against plaintiff by seeking his termination
using some trumped-up disciplinary charges. The matter went to a hearing
before an arbitrator, where plaintiff was found guilty and terminated.
Plaintiff’s twelve-count, third amended complaint asserts claims against
the eight named defendants under 42 U.S.C. § 1981 (Counts One, Two, and
Three), 42 U.S.C. §§ 1983 and 1985 (Counts Four, Five, and Six), Title VII of
the Civil Rights Act of 1964 (Counts Seven, Eight, and Nine), and New York
State Human Rights Law (Counts Ten, Eleven, and Twelve). Dkt. No. 49.
But in order to survive one or both of defendants’ motions for summary
judgment and get to a trial (let alone to warrant judgment as a matter of law
- 29 -

in his favor), plaintiff must do more than just point to these allegations in his
operative pleading. Instead, plaintiff must identify sufficient evidence in the
record that, when viewed in his favor, would permit a rational fact-finder to
return a verdict for him on one or more of his claims against one or more of
the named defendants.
This baseline requirement—the need to identify the record evidence that
supports each of his claim or claims—poses a recurring analytical problem in
this case. For instance, plaintiff’s seventy-one page memorandum of law
groups together all of his Title VII and § 1981 (and NYSHRL) claims into a
running list of combined grievances. Pl.’s Opp’n, Dkt. No. 95-99 at 27–57.
But as explained in detail below, plaintiff’s operative pleading asserts at
least three distinct kinds of Title VII and § 1981 claims. These distinctions
matter: the legal analysis for a disparate treatment claim is different than a
hostile work environment claim, and both claims are distinguishable in some
important respects from a retaliation claim. Accordingly, rather than try to
divine from his briefing how many distinct disparate treatment or retaliation
claims plaintiff intended to press, the Court has resorted to relying heavily on
the third amended complaint—the operative pleading—as the best available
roadmap for identifying plaintiff’s individual claims. In consequence, any
possible iteration of a claim not explicitly discussed in this opinion has either

- 30 -

been deemed abandoned (as insufficiently developed in the briefing) or been
considered and rejected on the merits (without belaboring the discussion).
A. Disparate Treatment
Plaintiff’s third amended complaint asserts claims for race discrimination
under 42 U.S.C. § 1981 (Count One) and Title VII (Count Seven). Dkt. No. 49
¶¶ 200–214, 292–306. Plaintiff alleges that: (1) the November 6, 2017 Last
Chance Agreement and its associated penalties; (2) his union representation
in connection with the December 23, 2020 Notice of Discipline; and (3) the
associated suspension and eventual termination were “done in whole or in
part because of his race.” Dkt. No. 49 ¶¶ 204, 209, 210–211, 299–303.
In other words, plaintiff has alleged “disparate treatment” based on his
“race,” which is actionable if the defendant had a racially discriminatory
intent or motive in taking the adverse job-related action. Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 986 (1988). A racially discriminatory
intent or motive can be proven with direct evidence, Price Waterhouse v.
Hopkins, 490 U.S. 228, 258 (1989), such as “a workplace policy, practice or
decision [that] relies expressly on a protected characteristic,” Young v. United
Parcel Serv., Inc., 575 U.S. 206, 213 (2015), or “conduct or statements by
persons involved in the decision[-]making process that may be viewed as
directly reflecting the alleged discriminatory attitude,” Ostrowski v. Atl. Mut.
Ins. Co., 968 F.2d 171, 182 (2d Cir. 1992).
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But direct evidence of an employer’s racially discriminatory intent or
motivation is usually hard to find. Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72, 86 (2d Cir. 2015) (recognizing that employer’s intent and state of
mind are “usually unstated); Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir.
1991 (“An employer who discriminates is unlikely to leave a ‘smoking gun,’
such as a notation in an employee’s personnel file, attesting to a
discriminatory intent.”). Consequently, discrimination cases usually rely on
the weight of indirect or circumstantial proof. Rosen, 928 F.3d at 533 (“A
victim of discrimination is . . . usually constrained to rely on the cumulative
weight of circumstantial evidence.”); Sublett v. John Wiley & Sons, 463 F.3d
731, 736–37 (7th Cir. 2006) (characterizing indirect proof as “more common”).
At summary judgment, a plaintiff can establish a “disparate treatment”
claim based on indirect evidence: (1) by showing that the employer’s stated
reason for the challenged job action was actually a “pretext” to cover-up
unlawful discrimination; or (2) “by otherwise creating a ‘mosaic’ of intentional
discrimination by identifying ‘bits and pieces of evidence’ that together give
rise to an inference of discrimination.’” Vega, 801 F.3d at 87 (quoting
Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1988)).
A showing of “pretext” is the most common method for defeating summary
judgment. Bart v. Golub Corp., 96 F.4th 566, 575 (2d Cir. 2024) (explaining
that “pretext” is useful shorthand for this area of law). To do so, the plaintiff
- 32 -

must satisfy the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Comcast Corp. v. Nat’l Ass’n of African
Am.-Owned Media, 589 U.S. 327, 340 (2020) (explaining that this framework
is only “a tool for assessing claims” based on indirect proof); Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (same).
Under this three-part, burden-shifting framework:
(1) a plaintiff must first establish a prima facie case of
discrimination; (2) the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory
reasons for its actions; if the employer does so, the
McDonnell Douglas framework and its presumptions
and burdens disappear, leaving the sole remaining
issue of ‘discrimination vel non;’ and thus, (3) the
burden shifts back to the plaintiff ‘to prove by a
preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.’
Hong Yin v. N. Shore LIJ Health Sys., 20 F. Supp. 3d 359, 371 (E.D.N.Y.
2014) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000)).
This basic framework applies to plaintiff’s disparate treatment claims
under Title VII and § 1981. See, e.g., Alvarado v. United Hospice, Inc., 631 F.
Supp. 3d 89, 111 (S.D.N.Y. 2022). But there are several important wrinkles
to keep in mind. For instance, Title VII claims are not cognizable against the
individual defendants. See, e.g., Patterson v. County of Oneida, 375 F.3d 206,
226 (2d Cir. 2004). Section 1981, on the other hand, can reach any defendant
- 33 -

who is “personally involved” in the violation. Id. at 229. Likewise, although
Title VII offers a plaintiff-friendly “motivating factor” causation standard for
disparate treatment claims, see, e.g., Zann Kwan v. Andalex Grp., LLC, 737
F.3d 834, 845 (2d Cir. 2013), § 1981 claims require a classic showing of “butfor” causation, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 589
U.S. 327 (2020). 8 These and other relevant legal distinctions have been noted
in greater detail below.
1. Prima Facie Case
The McDonnell Douglas framework puts the initial burden on the plaintiff
to make out a prima facie case of discrimination by establishing that: (1) he is
a member of a protected class; (2) who is qualified for his position; (3) he
suffered an adverse job-related action; and (4) under circumstances that give
rise to a minimal inference of discrimination on the basis of one or more of his
protected characteristics. See, e.g., Musante v. Mohawk Vall. Cmty. Coll., 270
F. Supp. 3d 564, 577 (N.D.N.Y. 2017). “The plaintiff’s burden of proof as to
this first step has been characterized as minimal and de minimis.” Zann
Kwan, 737 F.3d at 844 (cleaned up).
Upon review, plaintiff has carried his minimal threshold burden. Notably,

8 Courts should be careful not to lean too heavily on this distinction—as the Supreme Court has

recently reminded us, there is often more than one “but-for” cause of an adverse action. Bostock v.
Clayton County, 590 U.S. 644, 656 (2020).
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recent Supreme Court precedent has emphasized that an “adverse job action”
for a disparate treatment claim need only amount to some kind of difference
in treatment that injures the employee. Muldrow v. City of St. Louis, 144 S.
Ct. 967 (2024) (rejecting so-called “materiality” requirement in the Title VII
context); Anderson v. Amazon.com, Inc., 2024 WL 2801986, at *10 (S.D.N.Y.
May 31, 2024) (applying Muldrow’s holding to a § 1981 claim).
Further, although plaintiff’s briefing makes little or no effort to establish
the particularities of how each named defendant was somehow involved in
each of the challenged job actions (the 2017 Last Chance Agreement or the
2020 Notice of Discipline and resulting termination), his repeated references
to the generally racially charged atmosphere within the department suffice to
establish the minimal inference of discrimination needed to push the analysis
beyond step one of the McDonnell Douglas framework. 9
2. Legitimate, Non-Discriminatory Reason
Where, as here, the plaintiff establishes his prima facie case, “the burden
then shifts to the defendant to articulate a legitimate, non-discriminatory
reason for its actions.” Cherry v. N.Y. City. Hous. Auth., 564 F. Supp. 3d 140,
165 (E.D.N.Y. 2021). However, “[t]he burden at this stage is also ‘light,’ and

9 As noted elsewhere, plaintiff identifies a multitude of other job events—such as being passed

over for training opportunities—that might have been actionable as discrete claims consistent with
the Supreme Court’s holding in Muldrow. But plaintiff has not developed these arguments in his
briefing (some of which might be time-barred), so the Court has not analyzed them separately.
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the defendant need not persuade the court that it was motivated by the
reason it provides; rather it must simply articulate an explanation that, if
true, would connote lawful behavior.” Sotak v. Bertoni, 501 F. Supp. 3d 59,
78 (N.D.N.Y. 2020).
Upon review, the City defendants and the PBA defendants have carried
their step-two burden of identifying a legitimate, non-discriminatory reason
for the challenged job-related actions. As for the City defendants, they have
pointed to evidence that an internal investigation into a social media post led
to witness statements that supported departmental discipline leading up to
the 2017 Last Chance Agreement. City Defs.’ Facts ¶¶ 95–98. As for the
2020 Notice of Discipline, plaintiff’s own version of the facts acknowledge the
conduct that underlies the four charges. Id. ¶ 142–144, 149. As for the PBA
defendants, they have pointed to the “serious allegations of misconduct by
numerous women,” PBA Defs.’ Facts ¶ 6, and to the arbitrator’s finding as to
one of the charges arising from the 2020 Notice of Discipline, id. ¶¶ 48–49.
3. Pretext
The final step under McDonnell Douglas is about pretext. Where, as here,
the defendants have produced a legitimate, non-discriminatory reason for the
challenged action(s), then “the presumption raised by the prima facie case is
rebutted and drops from the case.” Bucalo v. Shelter Island Union Free Sch.
Dist., 691 F.3d 119, 129 (2d Cir. 2012) (citation omitted). “At the final stage,
- 36 -

the plaintiff has ‘the opportunity to demonstrate that the proffered reason
was not the true reason for the employment decision’—a burden that ‘merges
with the ultimate burden of persuading the court that she has been the
victim of intentional discrimination.’” Id. (cleaned up).
Upon review, even viewed in the light most favorable to him, plaintiff has
not identified evidence from which a rational fact-finder could conclude that
the investigation that led to the 2017 Last Chance Agreement, the Last
Chance Agreement itself, the 2020 Notice of Discipline, or the arbitration
proceeding that led to his termination were motivated, either in whole or in
any substantial or motivating part, by plaintiff’s race. Although plaintiff’s
recitation of other incidents attributed to other, unnamed officers inside the
department might have sufficed to satisfy his de minimis burden at step one,
under this fact pattern something at least slightly more specific as to one or
more of the named defendants is required to create a fact question suitable
for a jury on one or more of these disparate treatment claims. 10
Plaintiff has not offered any basis on which to conclude that one or more of
the eight named defendants (to the extent that any of them could properly be
held responsible under the governing law) used either disciplinary proceeding

10 Neither party argues this issue, but the “convincing mosaic” framework does not save these

claims for trial, either. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107,
124 (2d Cir. 2004) (“To meet his or her ultimate burden, the plaintiff may, depending on how strong
it is, rely upon the same evidence that comprised her prima facie case, without more.”).
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as a pretext to disguise racial animus. 11 Importantly, in his own set of facts
plaintiff concedes that he was accused by several women of misconduct and
acknowledges that he signed the Last Chance Agreement. Although he goes
on to claim that these accusations were somehow “time barred” and asserts
that the Last Change Agreement was somehow procured by “fraud,” these are
essentially ipse dixits—supported only by plaintiff’s conclusory assertions.
The same is true of the 2020 Notice of Discipline that led to the arbitration
where plaintiff was terminated. Even on plaintiff’s own version of the facts,
he acknowledges the factual basis for the incidents that form the basis of
each charge. Pl.’s Facts ¶ 209, 213–215, 218–219, 226, 228–229, Although he
tries to explain away each event or fault others, plaintiff has not offered any
basis on which a fact-finder could conclude that this proceeding was in any
way the product of racial animus (by one or more of the named defendants).
In sum, the City defendants and the PBA defendants are each entitled to
summary judgment on plaintiff’s claims for race discrimination under § 1981
(Count One) and Title VII (Count Seven). Accordingly, those claims will be
dismissed.
11 Plaintiff acknowledges that he filed his administrative complaint on January 27, 2021. Pl.’s

Resp. to City Defs.’ Facts ¶ 2. Accordingly, a Title VII claim based on the Last Chance Agreement is
time-barred by the 300-day limitations period. Although plaintiff argues otherwise, the so-called
“continuing violation” doctrine does not apply to save this claim—the Second Circuit has repeatedly
rejected attempts by plaintiffs to use this doctrine to resurrect time-barred disparate treatment
claims arising from discrete acts. The State’s pandemic-era executive orders did not toll this period,
either. See, e.g., Verne v. N.Y. City Dep’t of Educ., 2022 WL 4626533, at & *6–7 (S.D.N.Y. Sept. 30,
2022).
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B. Hostile Work Environment
Plaintiff’s third amended complaint asserts claims for a racially hostile
work environment under 42 U.S.C. § 1981 (Count Two) and Title VII (Count
Eight). Dkt. No. 49 ¶¶ 215–223, 307–315. Plaintiff alleges that named and
unnamed officers and supervisors created a hostile work environment inside
the police department. In particular, plaintiff alleges that PBA President
Pratt “proudly and conspicuously carried a hate symbol as a tattoo” and that
other white police officers “stereotyped” him as “not smart,” “this is not the
hood,” “if anything goes wrong it’s Drake’s fault,” told him he was “only hired
as a show piece because [he is] Black,” and used “many other words to that
effect.” Dkt. No. 49 ¶¶ 218–219, 310–311.
A claim for a racially hostile work environment is actionable under Title
VII or § 1981 if the plaintiff can show that “the workplace is permeated with
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65–67
(1986)); Littlejohn v. City of N.Y., 795 F.3d 297, 320–321 (2015) (applying
same basic “severe or pervasive” standard for a § 1981 version of this claim).
“Claims alleging a hostile work environment require a different analysis
than discrimination or retaliation claims.” Banks v. General Motors, LLC, 81
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F.4th 242, 259 (2d Cir. 2023). Unlike discrimination claims based on discrete
acts, “incidents that give rise to a hostile work environment ‘occur[ ] over a
series of days or perhaps years and . . . a single act of harassment may not be
actionable on its own.’” Id. (quoting Morgan, 536 U.S. at 115). “The alleged
conduct in many hostile work environment cases must be repeated or ongoing
before it is adequately severe or pervasive to constitute a violation.” Gonzalez
v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015).
To establish a hostile work environment claim, the plaintiff must show
that “either a single incident was extraordinarily severe, or that a series of
incidents were ‘sufficiently continuous and concerted’ to have altered the
conditions of [his] working environment.” Alfano v. Costello, 294 F.3d 365,
372 (2d Cir. 2002) (citation omitted). The plaintiff must also show that “the
hostile conduct occurred because of a protected characteristic.” Tolbert v.
Smith, 790 F.3d 427, 439 (2d Cir. 2015).
“In a claim of a hostile work environment, the emphasis is on the hostility
of the work environment as a whole, not the motivation of one decisionmaker,
and liability is ‘determined only by looking at all the circumstances.’” Rasmy
v. Marriott Int’l, Inc., 952 F.3d 379, 389 (2d Cir. 2020) (quoting Harris, 510
U.S. at 23). For instance, “[e]vidence of a general work atmosphere . . . –as
well as evidence of specific hostility directed toward the plaintiff—is an

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important factor in evaluating the claim.” Banks, 81 F.4th at 262 (quoting
Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)).
This is still a “high bar.” Duplan v. City of N.Y., 888 F.3d 612, 627 (2d Cir.
2018). “Hostile work environment claims are meant to protect individuals
from abuse and trauma that is severe but are not intended to promote or
enforce civility, gentility or even decency. Put differently, excessive criticism
and rudeness do not constitute a hostile work environment.” Maron v. Legal
Aid Soc’y, 605 F. Supp. 3d 547, 561 (S.D.N.Y. 2022) (cleaned up).
“This standard has both objective and subjective components: the conduct
complained of must be severe or pervasive enough that a reasonable person
would find it hostile or abusive, and the victim must subjectively perceive the
work environment to be abusive.” Bentley v. Autozoners, LLC, 935 F.3d 76,
91 (2d Cir. 2019) (quoting Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir.
2014).
Upon review, plaintiff has satisfied the subjective component of his racially
hostile work environment claims. If plaintiff testified consistent with his
declaration, he would be able to establish that he subjectively perceived the
department to be permeated with racially charged abuse and discrimination
that he found to be offensive and distressing. But even viewed in the light
most favorable to him, no reasonable fact-finder could hear plaintiff’s version
of events—at least the non-conclusory versions that he has offered in support
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of his motion, relied on to oppose either of defendants’ motions, or highlighted
in his cross-motion and opposition papers—and conclude that plaintiff has
satisfied the objective component of this kind of claim.
The objective component of a hostile work environment claim depends on
the “totality of the circumstances,” which includes: (1) the frequency of the
conduct; (2) its severity; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s work performance. Harris, 510
U.S. at 23. Notably, this “totality of the circumstances” includes events that
might be time-barred as discrete claims. See, e.g., Hampton v. Wilkie, 554 F.
Supp. 3d 512, 521 (E.D.N.Y. 2021) (“Hostile work environment claims fall
under the ‘continuing violation’ exception to the timeliness requirement.”).
The problem for plaintiff is that if you strip away the conjecture and excise
the legal conclusions, what remains are a series of poorly described episodes
or incidents—spread out across most of the length of plaintiff’s nearly 12-year
tenure—that reference mostly unnamed actors in fairly general terms.
To be sure, plaintiff viewed events as offensive (e.g., the references to the
“Drake rules,” unnamed officers or employees sometimes calling him “hot
chocolate” or a “show piece,” or the incident where non-party DiCaprio
threatened plaintiff with discipline for wearing certain boots), but these
episodes were far from sufficiently severe or pervasive when compared to
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existing precedent in this area of law. Compare, e.g., Wheeler v. Praxair
Surface Techs., Inc., 694 F. Supp. 3d 432, 453 (S.D.N.Y. 2023) (applying Title
VII standard to reject pre-amendment NYSHRL version of this claim), with
Banks, 81 F.4th at 265 (summarizing racially offensive workplace setting
that included nooses, Confederate flags, racially offensive material, and
explicit racial slurs). 12
In sum, the City defendants and the PBA defendants are both entitled to
summary judgment on plaintiff’s claims for a hostile work environment under
§ 1981 (Count Two) and Title VII (Count Eight). Accordingly, Counts Two
and Eight will be dismissed.
C. Retaliation
Plaintiff’s third amended complaint asserts claims for retaliation under 42
U.S.C. § 1981 (Count Three) and Title VII (Count Nine). Dkt. No. 49 ¶¶ 224–
233, 316–325. Plaintiff alleges named and unnamed individuals retaliated
against him “at various times” after he “made complaints in good faith to
management officials and the Mayors regarding unlawful discrimination in
the workplace” by “threatening him, writing him up, forcing him to sign [the

12 Plaintiff repeatedly asserts, typically in a conclusory fashion, that his work environment was

“saturated” with White supremacist symbols. Pl.’s Opp’n at 29. Plaintiff does not substantiate this
assertion with very much evidence. But there is at least one fact issue in this record that gives the
Court some pause: PBA President Pratt’s tattoo. Absent more, however, the Court declines to send
the case to a jury on the strength of this bit of evidence alone.
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Last Chance Agreement] . . . , suspending him without pay, and eventually
terminating his employment.” Dkt. No. 49 ¶¶ 227, 229, 319, 321.
An employer’s retaliation in response to an employee’s protected activity is
actionable if the defendant had a retaliatory intent or motive when taking
the adverse action at issue. Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006). But just like direct evidence of racially discriminatory intent
or motive, direct evidence of retaliatory animus is usually hard to find. See,
e.g., Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005).
Consequently, retaliation claims tend to rely on the aggregated weight of
circumstantial or indirect proof. See, e.g., Hicks v. Baines, 593 F.3d 159, 170
(2d Cir. 2010). This usually involves evidence that a protected activity was
followed closely in time by some kind of mistreatment or with a showing that
other employees who engaged in substantially similar conduct were treated
differently. Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001).
At summary judgment, the sufficiency of a retaliation claim is analyzed
with the same framework that applies to intentional discrimination claims
based on indirect proof. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,
173 (2d Cir. 2005); Fincher v. Depository Trust & Clearing Corp., 604 F.3d
712, 720 (2d Cir. 2010) (applying framework to § 1981 claims); Baptiste, 680
F. Supp. 3d at 425 (recognizing that § 1981 covers race-based retaliation).

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The initial burden is on the plaintiff to establish a prima facie case of
retaliation by showing: “‘(1) participation in a protective activity; (2) that the
defendant knew of the protected activity; (3) an adverse employment action;
and (4) a causal connection between the protected activity and the adverse
employment action.’” Hicks, 593 F.3d at 164 (quoting Jute, 420 F.3d at 173).
As before, the burden of proof at this stage is “de minimis . . . but it is not
non-existent.” Ringel v. N.Y. City Dep’t of Educ., 616 F. Supp. 3d 205, 233
(E.D.N.Y. 2022) (citation omitted).
“If a plaintiff sustains the initial burden, a presumption of retaliation
arises.” Jute, 420 F.3d at 173. The burden then shifts to the defendant to
“articulate a legitimate, non-retaliatory reason for the adverse employment
action.” Id. After an employer offers up evidence of a legitimate, permissible
reason for its action, “the presumption of retaliation dissipates.” Id.
At that point, the burden is back on the plaintiff to show that retaliation
was a “but-for” cause of the adverse action. Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 352 (2013). As noted supra, there can be more than
one “but-for” cause of an adverse action. Bostock, 140 S. Ct. at 1739. Even
so, merely showing that retaliatory intent might have been a “substantial” or
“motivating” factor is ordinarily not enough. Zann Kwan, 737 F.3d at 845.
Upon review, plaintiff has established his prima facie case. The “protected
activity” about which plaintiff gives at least some level of detail is the June 3,
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2020 e-mail about “systemic racism” that plaintiff and his wife sent to newly
elected Mayor Cinquanti. There is no doubt that this joint e-mail qualifies as
good-faith “protected activity,” which is construed broadly under this body of
anti-discrimination law. See, e.g., Ringel, 616 F. Supp. 3d at 233. Likewise,
the parties agree that Mayor Cinquanti shared this e-mail with his newly
appointed Chief of Police (Chief Thomas), who thereafter subjected plaintiff
to events that also qualify as “adverse action”: the 2020 Notice of Discipline
that eventually led to plaintiff’s termination in early 2021.
However, the City defendants and the PBA defendants are still entitled to
summary judgment on plaintiff’s retaliation claims. As with his disparate
treatment claim based on these events, no rational fact-finder could hear
plaintiff’s version of the story (at least the one substantiated in his filings and
motion papers) and conclude that retaliatory animus motivated any named
defendant’s conduct.
For instance, although plaintiff asserts in conclusory fashion that two of
the incidents in the 2020 Notice of Discipline were “de minimis” and had been
handled under the prior Chief of Police, plaintiff acknowledges in his own
offerings that he engaged in the conduct that forms the basis of each charge.
In sum, the City defendants and the PBA defendants are both entitled to
summary judgment on plaintiff’s claims for retaliation under § 1981 (Count

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Three) and Title VII (Count Nine). Accordingly, Counts Three and Nine will
be dismissed.
D. 42 U.S.C. §§ 1983 and 1985 (Counts Four, Five, and Six)
Plaintiff’s third amended complaint asserts 42 U.S.C. § 1983 claims for
equal protection (Count Four), due process (Count Five), and a civil rights
conspiracy under §§ 1983 and 1985 (Count Six). 13
1. Equal Protection
Plaintiff alleges that defendants violated his equal protection rights when
they (1) forced him to sign the November 6, 2017 Last Chance Agreement and
imposed its associated penalties; (2) provided deficient union representation
following the December 23, 2020 Notice of Discipline; and (3) suspended and
terminated him in early 2021. Dkt. No. 49 ¶¶ 239, 242–246.
The Equal Protection Clause is “essentially a direction that all persons
similarly situated be treated alike.” City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439 (1985). “There are a number of common methods for
pleading an equal protection claim.” Kisembo v. N.Y. State Office of Children
& Family Servs., 285 F. Supp. 3d 509, 523 (N.D.N.Y. 2018).

13 The limitations period for § 1983 claims is ordinarily three years. Harris v. Tioga County,

663 F. Supp. 3d 212, 234 (N.D.N.Y. 2023). However, because § 1983 claims “borrow” or reference
state law, the State’s pandemic-era executive orders tolled the limitations period as to these claims.
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First, “[a] plaintiff could point to a law or policy that ‘expressly classifies
persons on the basis of race.’” Floyd v. City of N.Y., 959 F. Supp. 2d 540, 570
(S.D.N.Y. 2013) (quoting Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.
1999)). Second, “a plaintiff could identify a facially neutral law or policy that
has been applied in an intentionally discriminatory manner.” City of
Oneonta, 221 F.3d at 337 (citing Yick Wo v. Hopkins, 118 U.S. 356, 373–74
(1886)). Third, “[a] plaintiff could also allege that a facially neutral statute or
policy has an adverse effect and that it was motivated by discriminatory
animus.” Floyd, 959 F. Supp. 2d at 570 (citation omitted). Under these three
theories, the plaintiff “must prove purposeful discrimination directed at an
identifiable or suspect class.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d
Cir. 1995) (cleaned up); see also Keles v. Davalos, 642 F. Supp. 3d 339, 366–67
(E.D.N.Y. 2022).
However, even “[w]here there is no allegation of membership in a
protected class, the plaintiff may still prevail on either a ‘class of one’ or
‘selective enforcement’ theory.” Brown v. Griffin, 2019 WL 4688641, at *4
(S.D.N.Y. Sept. 25, 2019). Pursuant to Village of Willowbrook v. Olech, 528
U.S. 562 (2000), a plaintiff may assert a “class of one” claim by alleging that
“they were intentionally treated different from others similarly situated and
that there was no rational basis for this difference in treatment.” Doe v. Vill.
of Mamaroneck, 462 F. Supp. 2d 520, 558 (S.D.N.Y. 2006). Alternatively,
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pursuant to LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980), a plaintiff may
assert a “selective enforcement” claim by showing that they were treated
differently based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights, or malicious
or bad faith intent to injure a person. Savino v. Town of Southeast, 983 F.
Supp. 2d 293, 301 (S.D.N.Y. 2013) (citations omitted)
Upon review, plaintiff’s § 1983 equal protection claim fails under this body
of law for substantially the same reasons that his discrimination claims were
insufficient as a matter of law; i.e., plaintiff acknowledges the accusations
against him prompted an internal investigation, admits that he signed the
2017 Last Chance Agreement, and concedes that he engaged in the factual
underpinning of the charges for which the department issued its 2020 Notice
of Discipline and for which the Arbitrator terminated him. Further, although
plaintiff claims that Lt. Hennessy “engaged in substantially worse repeated
misconducts [sic]” and was not treated “anywhere as harshly” as he was, a
review of the settlement document entered into by Lt. Hennessy reveals that
it is similar to the Last Chance Agreement signed by plaintiff (the principal
difference being a one-year probationary period). Dkt. No. 86-14
In sum, the City defendants and the PBA defendants are both entitled to
summary judgment on plaintiff’s § 1983 claim for equal protection (Count
Four). Accordingly, Count Four will be dismissed.
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2. Due Process
Plaintiff alleges that defendants violated his due process rights when they
(1) forced him to sign the November 6, 2017 Last Chance Agreement and
imposed its associated penalties; (2) provided deficient union representation
following the December 23, 2020 Notice of Discipline; and (3) suspended and
terminated him in early 2021. Dkt. No. 49 ¶¶ 263–264, 270–271.
The Due Process Clause protects procedural and substantive rights. Page
v. Cuomo, 478 F. Supp. 3d 355, 370 (N.D.N.Y. 2020). Procedural due process
requires that “a deprivation of life, liberty, or property be preceded by notice
and opportunity for hearing appropriate to the nature of the case.” Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
“To assert a violation of procedural due process rights, a plaintiff must
first identify a property right, second show that the state has deprive him of
that right, and third show that the deprivation was effected without due
process.” Ferreira v. Town of E. Hampton, 56 F. Supp. 3d 211, 225 (E.D.N.Y.
2014) (citation omitted). “Notice and an opportunity to be heard are the
hallmarks of due process.” Id.
The Second Circuit has held that a plaintiff cannot establish a due process
violation where “pre-deprivation notice is provided and the deprivation at
issue can be fully remedied through the grievance procedures provided for in
a collective bargaining agreement.” Adams v. Suozzi, 517 F.3d 124, 128 (2d
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Cir. 2008). As relevant here, notice must be “reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objection . . . [and] afford a
reasonable time for those interested to make their appearance.” Castanza v.
Town of Brookhaven, 700 F. Supp. 2d 277, 290 (E.D.N.Y. 2010).
Upon review, plaintiff’s § 1983 due process claim fails under this body of
law. Although plaintiff accuses named and unnamed defendants of engaging
in irregular or unfair behavior vis-à-vis the particularities of the collective
bargaining process, he acknowledges that he received oral notice that he was
under investigation for serious misconduct, retained his own attorney after
deciding he was unhappy with the attorney offered by the PBA, and signed
the 2017 Last Chance Agreement instead of proceeding to a further hearing
under the collective bargaining agreement. Likewise, plaintiff concedes that
he engaged in the factual conduct underlying the 2020 Notice of Discipline
and admits that the Arbitrator found him guilty of charge three.
In sum, the City defendants and the PBA defendants are both entitled to
summary judgment on plaintiff’s § 1983 claim for a violation of his right to
due process (Count Five). Accordingly, Count Five will be dismissed.
3. Conspiracy
Plaintiff alleges that defendants engaged in a conspiracy to deprive him of
his civil rights when they (1) forced him to sign the November 6, 2017 Last
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Chance Agreement and imposed the associated penalties; (2) provided him
with deficient union representation for the December 23, 2020 Notice of
Discipline; and (3) suspended and terminated him in 2021. Dkt. No. 49 ¶¶
282–284.
Upon review, any § 1983 or § 1985 claim for conspiracy based on these or
other events must be dismissed because plaintiff has failed to show that he
has any actionable federal claims. DeMartino v. N.Y. State Dep’t of Labor,
167 F. Supp. 3d 342, 373 (E.D.N.Y. 2016) (§ 1983); Thomas v. Genova, 698 F.
Supp. 3d 493, 522 (E.D.N.Y. 2023) (§ 1985). Accordingly, Count Six will be
dismissed.
E. New York State Human Rights Law
Plaintiff’s third amended complaint asserts claims under the NYSHRL for
race discrimination (Count Ten), a racially hostile work environment (Count
Eleven), and retaliation (Count Twelve). Dkt. No. 49 ¶¶ 326–343, 344–355,
356–368.
Historically, courts analyzed these state-law race discrimination claims in
tandem with Title VII and § 1981. Alvarado, 631 F. Supp. 3d at 114–15. But
effective October 11, 2019, the State of New York amended the NYSHRL to
broaden its reach. Wheeler, 694 F. Supp. 3d at 451. “The case law, however,
has yet to definitely resolve whether the NYSHRL’s liability standard is now

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coextensive with that of [New York City’s Human Rights Law], or whether it
requires more, so as to impose a standard between federal and city law.” Id.
Plaintiff may well have one or more triable NYSHRL claims under the
amended version of this body of law. Indeed, a post-amendment hostile work
environment claim under the NYSHRL appears to benefit from a particularly
plaintiff-friendly standard. However, because these state-law claims appear
likely to raise novel or complex issues of state law, and because the court has
already dismissed plaintiff’s federal claims, supplemental jurisdiction over
these remaining state-law claims will be declined. See 28 U.S.C. § 1367(c)(1)
and (3). Accordingly, plaintiff’s NYSHRL claims (Counts Ten, Eleven, and
Twelve) will be denied without prejudice to renewal in an appropriate statecourt proceeding. 14
V. CONCLUSION
Summary judgment is a challenging tool to wield properly. On one hand,
the court must be cautious not to deny the non-movant (usually the plaintiff)
an opportunity to present his viable claims to a jury. On the other, the court
must also be careful not to waste a jury’s time by setting a case down for trial
when it is legally insufficient and should have been dismissed.

14 Under C.P.L.R. 205(a) and 28 U.S.C. § 1367(d), a plaintiff has at least thirty days in which to

re-file a claim in state court that was timely filed in federal court.
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That balance is more difficult to strike when, as here, the parties offer up
voluminous-and-disorderly briefing that fails to stay focused on the subset of
disputes that are both material and genuine. Graham v. Henderson, 89 F.3d
75, 79 (2d Cir. 1996) (“While genuineness runs to whether disputed factual
issues can reasonably be resolved in favor of either party, materiality runs to
whether the dispute matters; i.e., whether it concerns facts that can affect the
outcome under the applicable substantive law.”).
Defendants are entitled to summary judgment on plaintiff’s federal-law
claims. But plaintiff’s state-law claims will be dismissed without prejudice to
renew in a state forum, where recent amendments to the NYSHRL might be
more favorable to plaintiff’s hostile work environment (or other) claims.
Therefore, it is
ORDERED that
1. The PBA defendants’ motion for summary judgment (Dkt. No. 86) is
GRANTED in part and DENIED in part;
2. The City defendants’ motion for summary judgment (Dkt. No. 87) is
GRANTED in part and DENIED in part;
3. Plaintiff’s motion for summary judgment (Dkt. No. 95) is DENIED;
4. Plaintiff’s federal-law claims under § 1981 (Counts One, Two, and
Three), §§ 1983 and 1985 (Counts Four, Five, and Six), and Title VII (Counts
Seven, Eight, and Nine) are DISMISSED;
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5. The Court DECLINES to exercise supplemental jurisdiction over
plaintiff’s state-law claims; and
6. Plaintiff’s state-law claims under the NYSHRL (Counts Ten, Eleven,
and Twelve) are DISMISSED without prejudice to re-filing in state court.
The Clerk of the Court is directed to terminate the pending motions, enter
a judgment accordingly, and close the file.
IT IS SO ORDERED.

Dated: August 28, 2024
Utica, New York.

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