Abdelal v. Kelly

Filing 189

OPINION AND ORDER re: 181 MOTION for Summary Judgment . filed by Raymond W. Kelly, City Of New York ;.For the reasons set forth by the Court, Defendants Motion for Summary Judgment is GRANTED. (Signed by Judge Andrew L. Carter, Jr on 3/30/2020) (rj) Transmission to Orders and Judgments Clerk for processing.

3/30/2020

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MOHAMED ABDELAL,
Plaintiff,
-against-

1:13-cv-04341 (ALC)

COMMISSIONER, RAYOND W. KELLY and
CITY OF NEW YORK,

OPINION AND ORDER

Defendants.
ANDREW L. CARTER, JR., United States District Judge:
Plaintiff Mohamed Abdelal (“Plaintiff”), a former police officer at the New York City
Police Department (“NYPD”), brings this action against Defendants former Commissioner
Raymond W. Kelly and City of New York (collectively, the “Defendants”). Specifically, Plaintiff
alleges Defendants discriminated against him and subjected him to a hostile work environment
because of his Egyptian national origin, Arab ancestry, and/or his Muslim religion. Plaintiff
asserts such claims under 42 U.S.C. § 1981 (“§ 1981”), 42 U.S.C. §§ 2000 et seq., (“Title VII”),
the New York State Human Rights Law, (“NYSHRL”) and the New York City Human Rights
Law (“NYCHRL”). See Am. Compl., ECF No. 19. Before the Court is Defendants’ Motion for
Summary Judgment. After careful consideration, Defendants’ Motion is hereby GRANTED.
BACKGROUND
Unless stated otherwise, the facts are drawn from the Parties’ Rule 56.1 statements and
construed in a light most favorable to the non-moving party, Plaintiff.

1

I.

The Incident
Plaintiff is an Egyptian born, Muslim man, who worked as a police officer at the NYPD’s

50th Precinct. On March 30, 2008, while off-duty, Plaintiff visited the Hudson County
Correctional Facility (“Facility”) to solicit information from Eslam Gadou, an Egyptian detainee
being held for immigration violations and financial crimes. Defs.’ R. 56.1 Smt. ¶ 1. There,
without authorization from his commanding officer, Plaintiff identified himself as an NYPD
officer and displayed his NYPD identification to Facility personnel. Defs.’ R. 56.1 Stmt. ¶ 2. In
explaining the purpose of his visit, Plaintiff told U.S. Immigration and Naturalization Services
(“INS”) Sergeant Michael Prins that he believed Mr. Gadou had stolen from Plaintiff’s friend.
Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 3; Defs.’ Ex A at 71:2–71:5; Defs.’ Ex. C. at 13. Plaintiff was
ultimately denied access to Mr. Gadou and subsequently left the facility. Defs.’ R. 56.1 Stmt. ¶ 3.
Following Plaintiff’s departure, Sargent Prins called the NYPD Internal Affairs Bureau (“IAB”)
to alert them of Plaintiff’s visit. Defs.’ R. 56.1 Stmt. ¶ 4. The IAB consequently began
investigating Plaintiff to determine whether there was any criminal association between him and
Mr. Gadou. Defs.’ R. 56.1 Stmt. ¶ 4.
II.

The Investigation

The IAB conducted a very thorough investigation into Plaintiff. See generally Pl.’s Ex. 1.
Of relevance, the IAB sought to determine whether Plaintiff or Mr. Gadou had ties to the
Egyptian government or ties to terrorism. Defs.’ R. 56.1 Stmt. ¶ 4; Pl.’s Resp. Defs.’ R. 56.1
Stmt. ¶ 4; Pl.’s Ex. 1 at 167–68, 550–51, 667–68, 706–13, 886–87. The IAB also conducted
background checks on Plaintiff, his father and Mr. Gadou and reviewed Plaintiff’s financial
information, business dealings, cell phone call history, computer inquiries on NYPD systems and
2

travel. Pl.’s Resp. Defs.’ R 56.1 Stmt. ¶ 4; Pl.’s Ex. 1 at 387–93, 398, 477–81, 668–69, 741–52,
759, 825, 863, 865–67, 876, 883, 885–88. Beyond checks and reviews, the IAB conducted a few
controlled calls of Plaintiff, surveillance of Plaintiff at his parents’ house, and two interviews of
Plaintiff. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 4; Pl.’s Ex. 1 at 477–81, 815; Pl.’s Ex. 17 ¶¶ 2:6–
2:13, 35:9–25:12. During one of these interviews, the IAB informed Plaintiff of the
investigation. Pl.’s Ex. 17 ¶¶ 2:6–2:13. Plaintiff reportedly was emotionally distressed after
learning about the investigation and as a result, sought psychiatric treatment. Pl.’s Resp. Defs.’
R. 56.1 Stmt. ¶ 4; Pl.’s Ex. 8 at 79:9–80:10, 98:23–102:23.
In general, Plaintiff’s IAB file is voluminous. See generally Pl.’s Ex. 1. On one page of
the file, there is a note referring to the investigation as “the Egyptian case.” Pl.’s Resp. Defs.’ R.
56.1 Stmt. ¶ 4; Pl.’s Ex. 1 at 398. In addition, one of the investigators indicated that Plaintiff’s
Middle Eastern heritage was “in the back of her mind” throughout the investigation. Pl.’s Resp.
Defs.’ R. 56.1 Stmt. ¶ 4; Defs.’ Ex. C at 6; Pl.’s Ex. 8 at 79–80, 99–102.
Subsequently, the IAB concluded the investigation on September 16, 2009 and
determined that Plaintiff “did not associate with Eslam Gadou.” Pl.’s Resp. Defs.’ R. 56.1 Stmt.
¶ 4; Pl.’s Ex. 1 at 771. On October 9, 2009, the IAB placed Plaintiff on Level II Performance
Monitoring. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 4; Pl.’s Ex. 2 at 59–60. As a part of the Level II
Performance Monitoring, Plaintiff was subjected to quarterly reviews, monitoring by the
Performance Monitoring Unit and integrity tests. 1 Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 4; Pl.’s Ex. 2
at 57-60. In addition, the performance monitoring was placed on Plaintiff’s Central Personnel

1

Integrity tests are covert examinations tests whereby undercover officers post as civilians and covertly assess
officers under Level II Performance monitoring.

3

Index, a database consisting of personnel information. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 4; Pl.’s
Ex. 2 at 57. During the course of the investigation and monitoring, Plaintiff testified that his
work responsibilities did not change. Defs.’ Ex. A ¶¶ 48:3–48:8; 79:9–79:25; 85:2–85:7; 86:4–
86:15.
III.

Charges and Specifications Preferred Against Plaintiff

During and following the investigation, the NYPD Advocate’s Offices (“DAO”) filed 11
charges specifications against Plaintiff, which emanated from four disciplinary cases, Defs.’ R.
56.1 Stmt. ¶ 5. Specifically, On September 5, 2008, the DAO preferred the following two
specifications against Plaintiff under disciplinary Case No. 2008-254:
1. Said Police Officer Mohammed Abdelal, while assigned to the 50th Precinct, while on
duty, on or about September 22, 2007, within the confines of the 50th Precinct, did fail
to properly search a prisoner, as required.
2. Said Police Officer Mohammed Abdelal, while assigned to the 50t Precinct, while on
duty, on or about September 22, 2007, within the confines of [t]he 50th Precinct, did
fail to properly maintain a prisoner officer . . . as required.
Defs.’ Ex. F. at 2.
On August 17, 2009, under Disciplinary Case No. 2009–320, the DAO filed the
following 3 specifications against Plaintiff, two of which were related to the incident at the
facility:
1. Said Police Officer Mohamed Abdelal, assigned to the 50th Precinct, while off-duty,
on or about March 30, 2008, did fail to notify his Commanding Officer when
attempting to visit an inmate in Hudson County Correctional Facility, as required.
2. Said Police Officer Mohamed Abdelal, assigned to the 50th Precinct, while off-duty,
on or about March 30, 2008 did wrongfully engage in conduct prejudicial to the good
order, efficiency and discipline of the Department, in that said Police Officer did
provide false or misleading information to Immigration and Naturalization Services
Officer(s), in that said Police Officer did represent to said Officer(s) that he needed to
interview an inmate as a part of an Official Investigation involving INTERPOL, when
said Police Officer was not involved in any such investigation.
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3. Said Police Officer Mohamed Abdel[al], assigned to the 50th Precinct, on or about
and between January 1, 2009 and May 20, 2009, was engaged in off duty
employment without obtaining an approved off duty employment application, as
required.
Defs.’ Ex. F. at 7.
Additionally, on September 3, 2009, the DAO filed the following charges and specifications
against Plaintiff:
1. Said Police Officer, Mohamed Abdelal, while assigned to the 50th precinct, while on sick
report, on or about and between July 15, 2008 and July 19, 2008, was wrongfully, and
without just cause, absent from his residence beyond his authorized pass hours without
permission or authority of said officer’s District Surgeon and/or the Medical Division
Sick Desk Supervisor.
2. Said Police Officer, Mohamed Abdelal, while assigned to the 50th precinct, while on sick
report, on or about and between July 15, 2008 and July 19, 2008, while on sick report, did
leave the confines of the City or resident counties without the approval of the Chief of
Personnel.
3. Said Police Officer, Mohamed Abdelal, while assigned to the 50th Precinct, while on sick
report/ on or about and between June 2008 to March 10, 2009, did fail to reside within
the confines of the City or residence counties, as required.
4. Said Police Officer Mohamed Abdelal, while assigned to the 50th Precinct, while on sick
report, on or about and between June 2008 to March 10, 2009, did wrongfully cause false
entries to be made in department records and that said police officer did in fact, reside in
New Jersey.
Defs.’ Ex. F. at 13‒14.
Lastly, on November 1, 2011, under Disciplinary Case No. 2011-5996 , the DOA filed
the following charges and specifications against Plaintiff for failing an integrity test administered
during his Level II Disciplinary Monitoring status:
1. Said Police Officer Mohamed Abdelal, assigned to the 50th precinct, on or about
February 8, 2011, within the confines of the 50th Precinct, in Bronx County, said
officer did fail and neglect to perform said officer’s duties, to wit said officer failed to
prepare a UF–250 following a stop and question of a male known to this Department,
as directed by competent authority.
2. Said Police Officer Mohamed Abdelal, assigned as indicated in Specification #1, on
or about February 8, 2011, within the confines of the 50th Precinct, in Bronx County,
did fail and neglect to maintain said officer’s Activity Log (PD 112–145), to wit said
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officer failed to make entries relating to a stop and question of a male known to this
Department.
Defs.’ Ex. F. at 17.
IV.

The Adjudication

Given the number of charges and specifications pending against Plaintiff, the DAO
offered Plaintiff a pre-trial plea. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 8. Plaintiff pled guilty to seven
of the specifications and went to trial on the remaining four. Defs.’ R. 56.1 Stmt. ¶¶ 5, 6; Pl.’s
Resp. Defs.’ R 56.1 Stmt. ¶ 8. Specifically, Plaintiff did not plead to: Specification No. 1 of Case
No. 2008-254, failing to properly search a prisoner; Specification 2 of Case No. 2009-320,
providing misleading or false information to INS concerning his visit to the facility;
Specification Nos. 1 and 2 of Case No. 2011-5996, failing to fill out a UF-250 report and failing
to make proper entries in his activity log, which emanated from the integrity testing. See Defs.’
Ex. E at 1.
After the trial, Deputy Commissioner of Trials (“DCT”) Martin G. Karopkin submitted a
Report and Recommendation to Defendant Kelly. See generally Defs.’ Ex. C. DCT Karopkin
found Plaintiff guilty of failing to properly search a prisoner and falsely informing INS that he
that he needed to interview detainee Gadou as part of an official investigation with Interpol.
Plaintiff was found not guilty of the specifications related to failing the integrity test; as a result,
DCT Karopkin dismissed those specifications. Defs.’ R. 56.1 Stmt. ¶ 7; Defs.’ Ex. C at 14,
35−42; Defs.’ Ex. E. The report recommended a penalty consisting of forfeiture of 45 vacation
days and dismissal that would be held in abeyance for a one-year period. Defs.’ Ex C at 42.
However, Defendant Kelly dismissed the report’s recommendation. Pl.’s Resp. Defs.’ R. 56.1
Stmt. ¶ 8. Instead, Defendant Kelly offered Plaintiff a post-trial negotiated agreement, under
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which Plaintiff was required to file for vested interest retirement, forfeit thirty vacation days, be
suspended for a 30-day period and waive all time and leave balances, and be placed immediately
on a one-year dismissal. Id. Plaintiff rejected said negotiated agreement. Id. Ultimately, Plaintiff
was terminated from the NYPD on January 29, 2013. Defs.’ R. 56.1 Stmt. ¶ 8.
V.

Other Relevant Information Concerning the NYPD

Under Defendant Kelly’s leadership, other non-Muslim and non-Egyptian officers who
were subject to some of the charges that were filed against Plaintiff did not face termination. For
example, PO Gonzalez, a Hispanic male, who was Plaintiff’s partner during the integrity test,
faced no disciplinary action for failing the integrity test. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 7;
Defs.’ Ex. C 40−41; Pl.’s Ex. 9 ¶ 14. At the time of the test, PO Gonzalez had four disciplinary
charges filed against him, two of which were for unjustified force. Pl.’s Resp. Defs.’ R. 56.1
Stmt. ¶ 7; Defs.’ Ex. C 40-41. Similarly, a white, Catholic, American born officer, Stephen B.,
knowingly associated with a criminal; without authorization, visited said criminal while
incarcerated; failed to comply with direct orders not to associate with said criminal; failed to
notify the Operations Unit of unusual police occurrences; and engaged in and/or incidents that
required a police response or resulted in the filing of a domestic incident report. Pl.’s Resp. to
Defs.’ R. 56.1 Stmt. 8; Pl.’s Ex. 3 at 132–136; Pl.’s Ex. 4; Pl.’s Ex. 20. Stephen B. pleaded guilty
to all of these charges except failing to comply with direct orders not to associate with a criminal
to which he was found guilty. Pl.’s Ex. 3 at 132-136. Lastly, Defendant Kelly testified that he
was aware of other police officers disciplined by him for lying with respect to their official
function who were not terminated. Pl.’s Resp. to Defs.’ R. 56.1 Stmt. 8; Pl.’s Ex. 5 at 118:20–
118:25.
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In addition, around the time of the IAB investigation the NYPD published a report
entitled “Radicalization in the West: The Homegrown Threat,” which included a preface from
Defendant Kelly. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 5; Pl.’s Ex. 13. The report included
statements such as the following “the City’s Muslim communities have been permeated by
extremists who have and continue to sow the seeds of radicalization.” Pl.’s Resp. Defs.’ R. 56.1
Stmt. ¶ 5; Pl.’s Ex. 13 at 67. It also identified “[w]earing traditional Islamic clothing, growing a
beard,” “[j]oining or forming a group of like-minded individuals in a quest to strengthen one’s
dedication to Salafi Islam,” and “[g]iving up cigarettes, drinking, gambling and urban hip-hop
gangster clothes” as indicators of radicalization. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 5; Pl.’s Ex. 13
at 31. Furthermore, in 2010 the NYPD utilized a training video entitled “The Third Jihad.” Pl.’s
Resp. Defs.’ R. 56.1 Stmt. ¶ 5; Pl.’s Ex. 12. The video was removed from training after several
complaints that it was offensive. Pl.’s Resp. Defs.’ R. 56.1 Stmt. ¶ 5; Pl.’s Ex. 12. Defendant
Kelly also publicly apologized for the film and testified that the video was offensive. Pl.’s Resp.
Defs.’ R. 56.1 Stmt. ¶ 5; Pl.’s Ex. 5 at 93:7–104:25.
VI.

Procedural Background

After discovery, Defendants moved for summary judgment. The Court granted Defendants
motion on March 31, 2017, based on claim preclusion and timeliness. See Order, ECF No. 130.
Plaintiff then appealed the decision to the Second Circuit, which remanded the action back to the
this Court, finding that collateral estoppel did not apply to Plaintiff’s discrimination claims and
Plaintiff’s hostile work environment claims were not untimely. See Mandate of USCA, ECF No.
142.

8

On August 26, 2019, Defendants again moved for summary judgment, arguing Plaintiff
cannot demonstrate a prima facie case of discrimination under § 1981, Title VII, the NYSHRL
and/or the NYCHRL as there is no evidence that his treatment by Defendants was in any way
connected to his ancestry, national origin or religion. Instead, Defendants argue, the undisputed
material facts demonstrate that Plaintiff’s employment was terminated because he repeatedly
engaged in misconduct resulting in several disciplinary charges that were adjudicated and
substantiated after a full disciplinary trial. Additionally, Defendants argue Plaintiff’s Title VII
claims against Defendant Kelly fail because Title VII does not provide for individual liability.
Concerning the remaining claims, Defendants assert Plaintiff does not offer sufficient evidence
to support a finding of a hostile work environment and fails to establish §1981 claims against the
City because he does not show his rights were violated as a result of municipality policy or
practice.
LEGAL STANDARD
Summary judgment must be granted “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); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). There is no issue of
material fact where the facts are irrelevant to the disposition of the matter. Chartis Seguros
Mexico, S.A. de C.V. v. HLI Rail & Rigging, LLC, 967 F. Supp. 2d 756, 761 (S.D.N.Y. 2013);
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that a fact is
material if it would “affect the outcome of the suit under governing law”). An issue is genuine “if
the evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248.
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In deciding a summary judgment motion, courts must construe the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences in her
favor. Niagara Mohawk Power Corp. v. Jones Chemical Inc., 315 F.3d 171, 175 (2d Cir.
2003). Courts may not assess credibility, nor may they decide between conflicting versions
of events, because those matters are reserved for the jury. Jeffreys v. City of New York, 426
F.3d 549, 553‒54 (2d Cir. 2005). However, “[t]he mere existence of a scintilla of evidence
in support of the plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Id. (quoting Anderson, 477 U.S. at 252). In
discrimination cases,
summary judgment may not be granted simply because the court believes that the
plaintiff will be unable to meet his or her burden of persuasion at trial. There must either
be a lack of evidence in support of the plaintiff’s position, or the evidence must be so
overwhelmingly tilted in one direction that any contrary finding would constitute clear
error.
Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (footnote and citations omitted). See
also Risco v. McHugh, 868 F. Supp. 2d 75, 98 (S.D.N.Y. 2012).
DISCUSSION
I.

Discrimination
Plaintiff brings claims against Defendants pursuant to §1981, Title VII, NYSHRL and

NYCHRL. 2 Pursuant to §1981, Title VII and the NYSHRL discrimination claims are reviewed
under the burden-shifting approach promulgated by the Supreme Court in McDonnell Douglas
Corp v. Green, 411 U.S. 792, 802‒04 (1973). Under McDonnell Douglas, a plaintiff must first
establish a prima facie case of discrimination by showing: “(1) he belongs to a protected group;
2

As an initial matter, Plaintiff’s Title VII claims against Defendant Kelly are dismissed because “individuals are not
subject to liability under Title VII. Sassaman v. Gamache, 566 F.3d 307, 315-16 (2d Cir. 2009) (citations omitted).

10

(2) he was qualified for his position; (3) his employer took an adverse action against him; and (4)
the adverse action occurred in circumstances giving rise to an inference of race [or religious]
discrimination.” Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (citing Terry v.
Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)).
Once a plaintiff makes a prima facie showing, the burden shifts to the defendant to
provide a “legitimate, non-discriminatory reason for its actions.” Kirkland, 760 F.3d. at
225 (citing McDonnell Douglas, 411 U.S. at 802). “This burden is one of production, not
persuasion. . .” Isaac v. City of N.Y., 701 F. Supp. 2d 477, 487 (S.D.N.Y. 2010) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). If the defendant provides a
legitimate, non-discriminatory justification, “the burden then shifts back to the plaintiff to show
that the employer’s explanation is a pretext for [prohibited] discrimination.” Kirkland, 760 F. 3d
at 225. At this stage, mere allegations are insufficient. The plaintiff must submit “admissible
evidence . . . [that] show[s] circumstances that would be sufficient to permit a rational finder of
fact to infer that [the employer’s] employment decision was more likely than not based in whole
or in part on discrimination.” Id. (quoting Terry, 336 F.3d at 138).
However, the NYCHRL imposes a more lenient standard. See McLeod v. Jewish Guild
for the Blind, 864 F.3d 154, 157 (2d Cir. 2017) (citing Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)) (“The NYCHRL, for example, applies a more
lenient standard than Title VII to discrimination and hostile work environment claims.”). “[T]he
plaintiff need only demonstrate ‘by a preponderance of the evidence that she has been treated
less well than other employees because of her [protected characteristic].’” Mihalik, 715 F.3d at
110 (citing Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 39 (2009)). With that said,
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[t]he plaintiff still bears the burden of showing that the conduct is caused by a discriminatory
motive.” Id.
Here, the Defendants do not dispute the first two factors. Accordingly, the following
discussion will focus on whether the Defendants took adverse employment actions against
Plaintiff that give rise to an inference of discrimination. Defendants primarily contend that
Plaintiff cannot establish a prima facie showing of discrimination because there is no evidence to
support discriminatory intent related to Plaintiff’s termination. In response, Plaintiff first argues
that he suffered other materially adverse actions beyond termination, namely the IAB
investigation and the Level II Performance monitoring. 3 Plaintiff further asserts that the
Defendants’ intrusive surveillance, excessive discipline, and his ultimate termination support an
inference of discrimination based on evidence of similarly situated employees and the
Defendants’ bias-based profiling practices.
The Second Circuit has held
[a] plaintiff sustains an adverse employment action if he or she endures a materially
adverse change in the terms and conditions of employment. An adverse employment
action is one which is more disruptive than a mere inconvenience or an alteration of job
responsibilities. Examples of materially adverse changes include termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly diminished material responsibilities, or other
indices unique to a particular situation.

3

Although Plaintiff additionally identifies integrity testing, supplemental charges and the summary included on his
Central Personnel Index (“CPI”) as separate and independent adverse actions, these occurred during the course of or
as a result of the Level II Performance Monitoring. Hence, the Court will analyze integrity testing and supplemental
charges in the context of Level II Performance Monitoring. Concerning the former, even if the Court were to
analyze integrity testing separately, Plaintiff would not establish an inference of discrimination or unequal treatment
because Plaintiff’s partner, PO Gonzalez, a Hispanic police officer, was subjected to a command discipline and
Plaintiff’s charges related to failing the integrity test were dismissed. Further, Plaintiff and his partner were not
similar situated in all material respects; unlike PO Gonzalez, Plaintiff was under Level II Performance Monitoring
when he failed the integrity test.

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Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (internal quotation marks, alterations, and
citations omitted). Although the Second Circuit has not articulated a bright line rule for what
constitutes an adverse action, it has clarified that “an employee does not suffer a materially
adverse change in the terms and conditions of employment where the employer merely enforces
its preexisting disciplinary policies in a reasonable manner.” Id. at 91; see also Islamic Soc’y of
Fire Dep’t Pers. v. City of New York, 205 F. Supp. 2d 75, 83 (E.D.N.Y. 2002) (internal quotation
marks and citations omitted) (“There are no bright-line rules for determining whether an
employee has suffered an adverse employment action; accordingly, the Court must pore over
each case to determine whether the challenged employment action reaches the level of
adverse.”). “The relevant question is therefore whether the employer has simply applied
reasonable disciplinary procedures to an employee or if the employer has exceeded those
procedures and thereby changed the terms and conditions of employment.” Joseph, 465 F.3d
at 92 n.1. With these principles in mind, the Court finds that Plaintiff’s termination constitutes an
adverse employment action. See id. at 90. The Court further finds that neither the IAB
investigation nor the Level II Performance Monitoring constitutes an adverse employment
action.
Generally, courts in this Circuit have found investigations that did not result in negative
consequences were not adverse actions. See e.g., Jaeger v. N. Babylon Union Free Sch. Dist.,
191 F. Supp. 3d 215, 226–29 (E.D.N.Y. 2016) (concluding that the investigation and monitoring
of Plaintiff were not adverse because they did not “result[] in any change, material or otherwise,
in the terms or conditions of [Plaintiff’s] employment). Similarly courts in this Circuit have
found that “excessive scrutiny do[es] not constitute [an] adverse employment action[] in the
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absence of other negative results such as a decrease in pay or being placed on probation.”
Abraham v. Potter, 494 F. Supp. 2d 141, 147 (D. Conn. 2007) (quoting Honey v. Cty. of
Rockland, 200 F. Supp. 2d 311, 320 (S.D.N.Y. 2002)); see also Jaeger, 191 F. Supp. 3d at 226–
29 (collecting cases). However, even in circumstances where an investigation or monitoring
results in negative consequences, such as termination, courts must consider whether such
investigations or surveillance were reasonable. See e.g., Cintron v. Atticus Bakery, LLC, 242 F.
Supp. 3d 94, 101–03 (D. Conn. 2017) (determining an investigation “was a reasonable response
to information that had been presented to the company” and therefore was not an adverse action);
see also Joseph, 465 F.3d at 90.
In this case, both the IAB investigation and the Level II Performance Monitoring were
followed by negative results. For example, the IAB investigation formed the basis of one of the
charges of which Plaintiff was found guilty. Similarly, as a part of the Level II Performance
Monitoring Plaintiff was subjected to integrity testing that formed the basis of other
specifications to which Plaintiff pled. However, Plaintiff neither argues nor provides sufficient
support for the conclusion that it unreasonable for the Defendants to initiate the investigation in
light of Plaintiff’s visit to the facility. Relatedly, Plaintiff neither claims nor provides sufficient
support for the conclusion that it was unreasonable for the Defendants to place Plaintiff on Level
II Performance Monitoring in light of his disciplinary history.
Plaintiff additionally fails to demonstrate that steps taken during the investigation and
monitoring were unreasonable such that they changed the terms or conditions of Plaintiff’s
employment. In fact, Plaintiff testified that his work responsibilities remained the same during
the investigation and monitoring. Cf. Bind v. City of N.Y., 08 Civ. 1105, 2011 WL 4542897, at
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*10 (S.D.N.Y. Sept. 30, 2011) (internal quotation marks and citation omitted) (finding
surveillance was an adverse employment action because it caused Plaintiff “to be subject to
significantly different responsibilities.”). Furthermore, Plaintiff’s arguments as to why the
investigation and monitoring are adverse actions are largely conclusory, offer minimal factual
support, and misconstrue the law. 4 Accordingly, the Court finds the Defendants “simply applied
reasonable disciplinary procedures to” Plaintiff by undertaking and conducting the IAB
investigation and Level II Performance Monitoring, and therefore the Defendants did not
“exceed[] those procedures” nor “change[] the terms and conditions of [Plaintiff’s]
employment.” Joseph, 465 F.3d at 92 n.1.
Next, the Court must analyze whether Plaintiff establishes his termination gives rise to an
inference of discrimination. Plaintiff primarily argues that evidence of bias-based profiling by
the IAB, statements by Defendant Kelly concerning Muslim populations and evidence of

4

For example, Plaintiff relies on a case involving a retaliation claim to support the proposition that investigations
and monitoring are adverse actions in the context of disparate impact discrimination claims. As courts in this District
have noted, “Title VII’s ‘antiretaliation provision, unlike the substantive provision, is not limited to discriminatory
actions that affect the terms and conditions of employment.’” Villar v. City of New York, 135 F. Supp. 3d 105, 135
(S.D.N.Y. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006)). Instead, to establish
the adverse action element of a retaliation claim a Plaintiff must “show that a reasonable employee would have
found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.’” Villar, 135 F. Supp. 3d at 135 (quoting
Burlington N., 548 U.S. at 68. Because adverse actions under discrimination claims and retaliation claims are
defined differently, adverse action determinations in the context of retaliation claims are inapplicable to Plaintiff’s
claims. See e.g., Mullins v. city of New York, 626 F. 3d at 55. In addition, Plaintiff’s reliance on Villar is unavailing.
135 F. Supp. 3d at 122-23. In that case, the plaintiff was similarly investigated, charged, prosecuted and ultimately
terminated. Id. at 113–18. Of relevance, two of her discrimination claims were based on the filing of disciplinary
charges against her, the prosecution of those charges, and the finding that she was guilty of those charges. Id. 122–
23. The Court in dismissing these discrimination claims did not address whether the investigation or the filing of
charges against the plaintiff was adverse. Id. Instead, the Court focused its reasoning exclusively on Plaintiff’s
failure to establish an inference of discrimination. As a result, Villar cannot be used to draw any conclusions
concerning whether the IAB investigation or the Level II Performance Monitoring were adverse actions.

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similarly situated individuals receiving less harsh penalties give rise to an inference of
discrimination.
In the Second Circuit “[a] plaintiff may raise . . . an inference [of discrimination] by
showing that the employer subjected him [or her] to disparate treatment, that is, treated him [or
her] less favorably than a similarly situated employee outside his protected group.” Graham v.
Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citations omitted). To do so, a “plaintiff must
show she was ‘similarly situated in all material respects’ to the individuals with whom she seeks
to compare herself.” Graham, 230 F.3d at 39 (quoting Shumway v. United Parcel Serv., Inc., 118
F.3d 60, 64 (2d Cir. 1997)); see also McGuinness v. Lincoln Hall, 263 F.3d 49, 53–54 (2d Cir.
2001). The Second Circuit has held “‘[w]hether two employees are similarly situated ordinarily
presents a question of fact for the jury’ and rather than focus on ‘precise equivalence,’ courts
should consider: ‘(1) whether the plaintiff and those she maintains were similarly situated were
subject to the same workplace standards and (2) whether the conduct for which the employer
imposed discipline was of comparable seriousness.’” O’Toole as Tr. of Estate of Fratto v. Cty. of
Orange, No. 16 CIV. 2059 (NSR), 2019 WL 1099721, at *7–8 (S.D.N.Y. Mar. 8, 2019) (quoting
Graham v. Long Island R.R., 230 F.3d at 39-40). “Plaintiff’s burden in this respect is
‘minimal.’” Keaton v. Unique People Servs., Inc., No. 15-CV-5354, 2018 WL 3708658, at *4
(S.D.N.Y. Aug. 3, 2018) (quoting McGuinness, 263 F.3d at 53). Although a Plaintiff may
support a claim of disparate treatment by offering pattern or practice evidence, such evidence is
neither necessary nor sufficient to establish a discrimination claim. Chin v. Port Auth. of New
York & New Jersey, 685 F.3d 135, 150 (2d Cir. 2012).

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Here, to support his discrimination claims based on termination, Plaintiff offers
comparator evidence consisting of eight individuals who were subjected to disciplinary action
under Defendant Kelly’s leadership. See Pl.’s Ex. 3; Pl.’s Ex. 4. Of those eight, Plaintiff only
establishes that one of those individuals, Stephen B., was outside of Plaintiff’s protected group;
in particular, Stephen B. self-reported to the Equal Employment Opportunity Office that he is
white, American and Catholic. See Pl.’s Ex. 3; Pl.’s Ex. 4; Pl.’s Ex. 20. Although Plaintiff, as the
non-moving party, is entitled to all reasonable inferences, Plaintiff’s conclusory allegations that
the other comparators were non-Muslim or non-Egyptian is insufficient, without more, to raise
genuine issues of material fact. Accordingly, the Court may not rely on comparators other than
Stephen B. to draw conclusions as to whether Plaintiff has established circumstances giving rise
to an inference of discrimination as it relates to his termination.
Concerning Stephen B., the Court finds that he was not similarly situated to Plaintiff in
all material respects. As a preliminary matter, it appears that Plaintiff and Stephen B. as NYPD
police officers were subject to the same workplace standards. Defendants do not dispute this
point. Instead, Defendants argue that Plaintiff and Stephen B. are not similarly situated because
they faced different charges and engaged in different conduct. The Court agrees.
Stephen B. was charged with: knowingly associating with a criminal; without
authorization, visiting said criminal while incarcerated; failing to comply with direct orders not
to visit said inmate; failing to notify the Operations Unit of unusual police occurrences; and
engaging in domestic verbal disputes and/or incidents that required a police response or resulted
in the filing of a domestic incident report. In other words, Stephen B.’s charges concerned
maintaining an unauthorized personal relationship with a criminal and participating in verbal
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disputes with members of his household. Unlike Stephen B., Plaintiff’s charges did not involve
conduct that was purely personal in nature. In fact, Plaintiff’s charges concerned conducting an
unofficial investigation and lying to INS by stating he was involved in an official investigation
with INTERPOL. Accordingly, when considering the totality of the circumstances, a reasonable
jury could not conclude Stephen B. and Plaintiff engaged in similar conduct. See Harlen Assocs.
v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001) (citations omitted) (“As a general
rule, whether items are similarly situated is a factual issue that should be submitted to the jury.
This rule is not absolute, however, and a court can properly grant summary judgment where it is
clear that no reasonable jury could find the similarly situated prong met.”). 5 Because Plaintiff
fails to raise an inference of discrimination, he fails to establish a prima facie case of
discrimination under Title VII, § 1981 and the NYSHRL; similarly, because he fails to show
unequal treatment, he has not asserted a viable discrimination claim under the NYCHRL.
Defendants are therefore GRANTED summary judgment as to the discrimination claims.
II.

Hostile Work Environment
To prevail on a claim of a hostile work environment pursuant to § 1981, Title VII or the

NYSHRL, a plaintiff must show that, because of his membership in a protected class, his
workplace was “permeated with discriminatory intimidation, ridicule, and insult, that [was]
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) (quotation
marks and citations omitted); see also Patterson v. Cnty. of Oneida, 375 F.3d 206, 227 (2d Cir.

5

For the same reason, even if Plaintiff had established the other comparators were in fact non-Muslim or nonEgyptian, Plaintiff’s claim would fail to establish they were similarly situated in all material respects; none of the
identified officers faced charges involving lying about being involved in an official investigation.

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2004); Forrest v. Jewish Guild for Blind, 3 N.Y.3d 295, 310 (N.Y. 2004) (applying standard for
New York state law claim of hostile work environment). “[S]imple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271
(2001) (internal quotation marks and citation omitted). In addition, a plaintiff must show that “a
specific basis exists for imputing the conduct that created the hostile environment to the
employer.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citation omitted).
In determining whether an environment is “hostile” or “abusive,” courts analyze the
totality of the circumstances, including: (1) “the frequency of the discriminatory conduct”; (2)
“its severity”; (3) “whether it is physically threatening or humiliating, or a mere offensive
utterance”; and (4) “whether it unreasonably interferes with the employee’s work performance.”
Harris, 510 U.S. at 23. A single act can meet this threshold, but only if, “by itself, it can and
does work a transformation of the plaintiff’s workplace.” Alfano v. Costello, 294 F.3d 365, 374
(2d Cir. 2002) (citing Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000);
Richardson v. N. Y. State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999)). A plaintiff
must also show both that he found the environment offensive, and that a reasonable person also
would have found the environment to be hostile or abusive. Harris, 510 U.S. at 21‒22; see also
Schwapp, 118 F.3d at 110; Carter v. New Venture Gear, Inc., 310 Fed. App’x 454, 457‒58 (2d
Cir. 2009).
By contrast, to prevail on a hostile work environment claim under the NYCHRL, a
Plaintiff must only show that the harassing conduct resulted in unequal treatment; as a result, the
“severity” and “pervasiveness” of the conduct is germane to the issue of damages, not liability.
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Mihalik, 715 F.3d at 110 (citing Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 76 (1st Dep’t
2009); see also Pedrosa v. City of New York, No. 13 CIV. 01890 LGS, 2014 WL 99997, at *4–
11 (S.D.N.Y. Jan. 9, 2014) (citation omitted) (“A hostile work environment claim under the
NYCHRL, unlike that under its state counterpart, does not require the complained-of conduct to
be ‘severe and pervasive.’”). That said, even under the NYCHRL, “‘petty, slight, or trivial
inconvenience[s]’ are not actionable.” Kumaga, 910 N.Y.S.2d 405, 2010 WL 1444513, at
*14 (quoting Williams, 872 N.Y.S.2d at 38); see also Mihalik, 715 F.3d 102 at 114.
The Second Circuit has cautioned district courts that the existence of a hostile work
environment “presents mixed question[s] of law and fact that are especially well-suited for jury
determination.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 605 (2d Cir. 2006) (internal
quotation marks and citations omitted). Thus, “[t]hat the facts are undisputed does not
automatically mandate summary judgment; rather, summary judgment is appropriate only where
application of the law to those undisputed facts will reasonably support only one ultimate
conclusion.” Id. (internal quotation marks and citation omitted).
Here, Plaintiff argues that the NYPD fostered an environment that was openly hostile to
Muslims and those of Middle Eastern decent. In support of this argument, Plaintiff identifies the
NYPD’s report entitled “Radicalization in the West: The Homegrown Threat” and the training
video entitled, “The Third Jihad” as contributing to the unnecessary surveillance of Muslim
individuals, including Plaintiff, and instilling prejudicial attitudes towards Muslims at the NYPD.
Plaintiff asserts that these prejudicial attitudes resulted in the IAB investigation, which he claims
unnecessarily treated him as a criminal and terrorist.

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For reasons articulated in the discussion of Plaintiff’s discrimination claims, the Court
finds Plaintiff fails to establish a hostile work environment claim under § 1981, Title VII or the
NYSHRL. Specifically, Plaintiff fails to establish the investigation was discriminatory, that it
was unreasonable for the NYPD to investigate Plaintiff in light of his unauthorized visit to the
facility or that it was unreasonable for the NYPD to place Plaintiff on Level II Performance
Monitoring considering his disciplinary history. Cf. Carillo v. Ward, 770 F. Supp. 815, 822 (2d
Cir. 1991) (finding a hostile work environment where Defendants’ surveillance was unfounded).
Accordingly, it cannot be said that either the investigation or monitoring were motivated by
discriminatory animus. Similarly, Plaintiff fails to establish a violation of NYCHRL because he
has not shown he faced unequal treatment. Plaintiff’s hostile environment claims must therefore
be dismissed. To the extent that Plaintiff asserts an independent claim of hostile work
environment based solely on the training video and report, such a claim also fails. Plaintiff does
not demonstrate how the video and report transformed Plaintiff’s workplace or resulted in
unequal treatment. Accordingly, Defendants’ motion is GRANTED as to Plaintiff’s hostile
environment claims.
CONCLUSION
For the reasons set forth by the Court, Defendants’ Motion for Summary Judgment is
GRANTED.
SO ORDERED.
Dated: March 30, 2020
New York, New York

__________________________________
ANDREW L. CARTER, JR.
United States District Judge

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