Guzman v. City of New York et al
Filing
47
MEMORANDUM OPINION AND ORDER re: 30 MOTION for Summary Judgment filed by Nancy Barry, New York City Police Deptartment, Daniel Herbert, Richard J Khalaf, Raymond Kelly, Damian Garcia, "John" Bello, City of New Y ork: For the foregoing reasons, Defendants' summary judgment motion is granted with respect to Guzman's claims under Title VII (as amended by the PDA), the NYSHRL, and §§ 1981 and 1983, and those claims are dismissed with prejud ice. The Court declines to exercise supplemental jurisdiction over Guzman's claims under the NYCHRL and dismisses those claims without prejudice. The Clerk of Court is directed to enter judgment accordingly and to close the case. (Signed by Judge Gregory H. Woods on 3/18/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JESSENIA GUZMAN,
:
:
Plaintiff,
:
:
-against:
:
CITY OF NEW YORK, et al.,
:
:
Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 3/18/2015
1:13-cv-5445-GHW
MEMORANDUM OPINION
AND ORDER
GREGORY H. WOODS, District Judge:
Plaintiff Jessenia Guzman brought this employment discrimination action against the City of
New York, the New York City Police Department (“NYPD”), and various individual defendants,
alleging that Defendants discriminated against her based on her race, color, gender, and pregnancy,
retaliated against her, and created a hostile work environment, in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy
Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k); the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 290 et seq.; the New York City Human Rights Law (“NYCHRL”),
N.Y. City Admin. Code § 8-101 et seq.; and 42 U.S.C. §§ 1981 and 1983. Defendants now move for
summary judgment with respect to all of Guzman’s claims.
I.
Background1
Guzman, who identifies herself as a black, Hispanic female, was hired as a police officer by
the NYPD in September 2000. See Doc. 32, Declaration of Leah S. Schmelzer (“Schmelzer Decl.”),
Ex. B (Deposition Testimony of Jessenia Guzman) (“Guzman Dep.”) at 20, 126. At all relevant
times, Guzman was assigned to the 24th Precinct and had the rank of Police Officer, which is the
The following facts are derived from the exhibits attached to the parties’ Rule 56.1 Statements of Undisputed Fact and
are undisputed.
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lowest uniformed rank. Id. at 21-22. Except as noted below, Guzman’s supervisors at the 24th
Precinct were Sergeant Damian Garcia, a Hispanic male; Sergeant Daniel Herbert, a white male;
Lieutenant Richard J. Khalaf, a white male; and Inspector Nancy Barry, a white female.
Guzman’s claims in this case concern a series of work-related incidents spanning from July
2010 to May 2013 that she alleges were discriminatory. The Court will describe these instances
chronologically.
In July and August of 2010, while Guzman was pregnant, she was assigned to work as a
telephone switchboard operator in an area of the stationhouse that did not have air conditioning. Id.
at 128-29. Neither Sergeant Garcia nor Lieutenant Khalaf was Guzman’s supervisor at the time, and
Inspector Barry had not yet been appointed as the commanding officer of the 24th Precinct. Id.
Guzman complained to Dr. Gaetano Bello, an NYPD District Surgeon, about the lack of air
conditioning, but was unable to obtain a change in assignment. Id. at 199. According to Guzman,
Officers Danielle Foley, Nina Frykberg, and Joanne Greene, all of whom are white, were assigned “a
nice little cushy office where they [could] perform their duties and not be stressed with the
[telephone switchboard]” during their pregnancies. Id. at 166. Guzman’s pregnancy in 2010
ultimately resulted in a miscarriage. Id. at 67.
On May 21, 2012, Guzman formally notified the NYPD that she was pregnant again. Id. at
93. At that time, Guzman had been pregnant for “only a few weeks.” Id. at 100. On the morning
of May 22, 2012, Lieutenant Khalaf instructed Sergeant Garcia to ensure that Guzman wore her
police uniform to work. Schmelzer Decl., Ex. D (Deposition Testimony of Damian Garcia)
(“Garcia Dep.”) at 47-48. Lieutenant Khalaf gave this instruction because it was in accordance with
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his understanding of “patrol guide procedure.”2 Schmelzer Decl., Ex. C (Deposition Testimony of
Richard J. Khalaf) (“Khalaf Dep.”) at 67-68.
That day, Guzman was assigned to work as a telephone switchboard operator. Guzman
Dep. at 93. She wore civilian attire to work. Id. In accordance with Lieutenant Khalaf’s directive,
Sergeant Garcia ordered Guzman to change into her uniform. Garcia Dep. at 47. Guzman initially
objected to this order on the ground that the “pregnancy desk” had previously informed her that she
was permitted to wear civilian attire to work, as she had apparently done during her previous
pregnancies. Guzman Dep. at 94. Nonetheless, after Sergeant Garcia spoke to Lieutenant Khalaf
and reiterated this order, Guzman attempted to comply with it and proceeded to a locker room to
change into her uniform. Id. at 95.
At that point, Guzman discovered that her pants did not fit. Id. She informed another
officer of this fact and was directed to return to the locker room to try on a different pair of pants.
Id. Inspector Barry eventually sent a female sergeant, Sergeant Suzette Merkoski, into the locker
room to “find out what was going on” with Guzman. Schmelzer Decl., Ex. E (Deposition
Testimony of Nancy Barry) (“Barry Dep.”) at 24. Guzman then began to experience anxiety and
ultimately suffered an anxiety attack. Guzman Dep. at 95, 100. The Patrol Borough Manhattan
North Investigations Unit subsequently conducted an investigation into this incident that
substantiated allegations of misconduct against Guzman, finding that Guzman “was dressed in
Specifically, NYPD Patrol Guide Procedure No. 205-27 states that pregnant police officers must “[c]omply with
[NYPD Patrol Guide Procedure] No. 204-03, ‘Uniforms,’ as it relates to the wearing of the uniform.” Schmelzer Decl.,
Ex. P at ¶ 7. In turn, NYPD Patrol Guide Procedure No. 204-03 outlines the requirements for a police officer’s
uniform and states as follows: “Pregnant uniformed members of the service, who are in their twentieth (20th) week of
gestation or earlier, if necessary, will wear business attire and display their identification card . . . on their outermost
garment. Proper business attire will conform with that worn to other official appearances, such as post-arraignment
court appearances, professional career interview, etc.” Schmelzer Decl., Ex. Q at 2 (italics and capitalization omitted).
Lieutenant Khalaf interpreted this provision to mean that “if somebody is pregnant, they . . . will wear their uniform
until the 20th week of gestation or sooner if necessary,” where “the ‘if necessary’ part of [this provision] is to be
determined by the supervisor.” Khalaf Dep. at 68-69.
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civilian attire and failed to dress into the administrative uniform when instructed to do so.”
Schmelzer Decl., Ex. Z.
In relation to the above incident, Guzman testified that Officers Foley, Frykberg, and
Greene were not disciplined for wearing civilian attire during their pregnancies. Guzman Dep. at
166. Guzman also testified, however, that all three of these Officers’ pregnancies occurred before
Inspector Barry arrived at the 24th Precinct, and that, after this incident, every pregnant officer was
assigned to the telephone switchboard desk and was required to dress in full uniform. Id. at 167-69.
On May 23, 2012, Guzman learned that she had miscarried and took sick leave. Id. at 103,
105. Upon returning from sick leave several weeks later, Guzman was assigned to work on a foot
post. Id. at 106. She remained assigned to a foot post for a month and a half. Id. Guzman was
never informed as to why she was assigned to a foot post, but believed that the assignment was a
form of punishment. Id. at 106, 150-51. According to Guzman, while being assigned to a foot post
did not directly affect her pay or benefits, id. at 117, it decreased her opportunities to earn overtime
by impeding her ability to make arrests, id. at 203-04. Officer Lisa Mendoza, one of Guzman’s
colleagues in the 24th Precinct, testified that Guzman was assigned to a foot post more than the
typical officer. Schmelzer Decl., Ex. J (Deposition Testimony of Lisa Mendoza) at 47.
On June 26, 2012, Sergeant Garcia wrote Guzman’s name in the “Minor Violations Log” for
failing to salute him. Schmelzer Decl., Ex. X. According to Guzman, she did salute Sergeant Garcia
that day, though he did not see her do so. Guzman Dep. at 206. Guzman testified that, while
officers are generally required to salute a commanding or supervising officer, id. at 207, it was her
“belief [that] there was no one else put[ ] in the minor violations log for not saluting [Sergeant
Garcia],” id. at 206.
On the morning of July 17, 2012, Guzman called into work and requested an “Emergency
Day”—a request for leave with less than five days of advance notice—because her daughter was
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sick. Id. at 53. Sergeant Herbert told Guzman that she could not take an Emergency Day because
she was needed for patrol and there was a patrol car waiting for her. Id. at 59. According to
Guzman, Officer Liampachara, a white male colleague, was granted an Emergency Day around the
same time when his son had a fever. Id. at 64.
Guzman arrived at work at approximately 12:00 p.m. that day and received a “warn and
admonish” Command Discipline for arriving late. Id. at 60, 64. A Command Discipline is a written
form of discipline that an officer may choose to reject, in which case the officer may be brought up
on disciplinary charges and afforded a disciplinary hearing. Id. at 41-42. Guzman rejected the above
Command Discipline and, as of the date of her deposition, had not received any penalty for it. Id. at
66.
In October 2012, Guzman applied for a transfer to the Police Officers Provide Peer
Assistance Unit (“POPPA Unit”), a volunteer group in which police officers provide assistance to
fellow officers through a 24-7 hotline. Id. at 143. Although Inspector Barry “recommend[ed]”
Guzman for the position, she did not “highly recommend” Guzman, purportedly because of
Guzman’s refusal to accept the Command Discipline for arriving late on July 17th. Id. at 144.
Guzman interviewed for the position with Bill Genet, the founder of the POPPA Unit, but her
transfer request was ultimately denied. Id. at 146. Other than Genet, Guzman does not know who
was involved in the decision to deny her transfer request. Id. Transferring to the POPPA Unit
would not have increased Guzman’s salary or benefits, and in fact would have decreased her
overtime hours and overall income. Id. at 146-47, 204.
On her annual performance evaluation for 2012, which was conducted by Sergeant Garcia,
Guzman received a rating of 3.5 out of 5. Id. at 175. Sergeant Garcia testified that most officers in
his squad received a performance rating between 3.5 and 4.5, and that a rating of 3.5 was considered
“good.” Garcia Dep. at 24. Similarly, Guzman testified that some people considered a rating of 3.5
5
to be “very good.” Guzman Dep. at 175. Guzman nonetheless believed that this rating prevented
her from transferring to a different department. Id. at 174.
In March 2013, Lieutenant Khalaf designated Guzman as a “floater” officer, which meant
that her assignments varied, and again placed her on a foot post. Id. at 149-50.
On April 22, 2013, Guzman was assigned to meet with an assistant district attorney at the
District Attorney’s Office. Id. at 155. After that meeting, Guzman sat in Family Court and waited
for the officer with whom she had traveled downtown so that the two of them could return to the
precinct together. Id. at 156. After Lieutenant Khalaf discovered that Guzman was in Family Court,
Guzman was issued a Command Discipline for taking an unauthorized meal break, accompanying
an officer to a court to which she was not assigned, and failing to report back to command for
reassignment after completing her assignment. Khalaf Dep. at 157. Guzman conceded that she was
not assigned to be in Family Court that day and did not otherwise have permission to be there.
Guzman Dep. at 156-57. According to Guzman, however, waiting for a fellow officer under such
circumstances was a standard practice among officers. Id.
On May 6, 2013, Lieutenant Khalaf wrote Guzman’s name in the Minor Violations Log for
being out of uniform. Guzman Dep. at 159-60. According to Guzman, she was wearing the same
outfit as Officer Lisa Rodriguez, whom she was relieving, yet Officer Rodriguez was not written up
in the Minor Violations Log. Id.
On May 14, 2013, Guzman was speaking to fellow Officer Lisa Mendoza in Spanish while
sitting at her assigned post at the telephone switchboard desk. Id. at 51. Lieutenant Khalaf
overheard Guzman speaking in Spanish and believed that, by doing so, she was violating an NYPD
policy. Khalaf Dep. at 176. Specifically, under the NYPD’s English-Only Policy, “[m]embers of the
service are required to speak English while they are conducting business for the Department unless
speaking a foreign language is a necessary component to performing their duties and
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responsibilities.” Schmelzer Decl., Ex. Y. Based on his belief that Guzman had violated this policy,
Lieutenant Khalaf issued Guzman a “49,” which is a letter or memorandum of instruction regarding
NYPD policies, as opposed to a form of discipline. Khalaf Dep. at 176-77. Officer Mendoza did
not receive a 49 in connection with this incident. Id. at 179.
On May 23, 2013, Lieutenant Khalaf wrote Guzman’s name in the Minor Violations Log for
not having her flashlight at roll call. Schmelzer Decl., Ex. X. Guzman conceded that she was
required to and did not have her flashlight, id. at 30, but asserted that other officers also did not have
their flashlights and were not written up in the Minor Violations Log, id. at 107-08.
More generally, Lietenant Khalaf conceded that he believed that Guzman “should be more
closely monitored” than other officers and that he had instructed Sergeant Garcia to “observe
[Guzman] more often” than others. Khalaf Dep. at 107. This belief was based on Lieutenant
Khalaf’s opinion that Guzman was “very disrespectful,” and that, “when somebody is disrespectful
to a supervisor . . . [or] to their subordinates, they may be disrespectful to the public.” Id. at 107-08.
Lieutenant Khalaf also believed that Guzman had “displayed to [him] that she did not have good
judgment,” such that he “felt that [he] needed to supervise her and make sure that she was where
she was supposed to be, doing what she was supposed to be doing and doing it properly.” Id. at
128-29.
In a charge filed against the NYPD with the Equal Employment Opportunity Commission
(“EEOC”) in July 2012 and supplemented in October 2012 and June 2013, Guzman raised
allegations of race, sex, gender, and pregnancy discrimination, retaliation, and the creation of a
hostile work environment.3 Schmelzer Decl., Exs. L, M, N.
The record is silent as to how the EEOC resolved this charge or whether it issued Guzman a right-to-sue letter.
Defendants have waived any objection that might arise from this absence of evidence by failing to raise such an
objection in their motion papers. See Pietras v. Bd. of Fire Com’rs of Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999)
(“[A] plaintiff’s failure to obtain a notice-of-right-to-sue-letter is not a jurisdictional bar, but only a precondition to
bringing a Title VII action that can be waived by the parties or the court.”).
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II.
Procedural History
In August 2013, Guzman, through counsel, filed a complaint in this Court raising the claims
noted above against the City of New York, the NYPD, NYPD Commissioner Raymond Kelly,
Inspector Barry, Lieutenant Khalaf, Sergeants Garcia and Herbert, and Dr. Bello. Defendants now
move for summary judgment, arguing, inter alia, that Guzman cannot establish that Defendants
discriminated against her based on her race, gender, color, or pregnancy, retaliated against her, or
created a hostile work environment under any of the applicable statutes.4
III.
Analysis
A.
Summary Judgment Standard
Summary judgment is appropriate when “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “In ruling on a summary judgment motion, the district court must resolve all ambiguities, and
credit all factual inferences that could rationally be drawn, in favor of the party opposing summary
judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for
trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks
omitted).
To defeat a motion for summary judgment, the defendant “must come forward with
‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). “[M]ere speculation or
Defendants also argue that (1) any of Guzman’s claims that accrued prior to September 30, 2011 are time-barred; (2)
Guzman failed to exhaust her administrative remedies with respect to her claims alleging color discrimination; (3) the
City of New York and Commissioner Raymond Kelly cannot be held liable under §§ 1981 or 1983 because there is no
evidence of an unconstitutional municipal policy or custom; (4) the individual defendants cannot be held liable under
Title VII; and (5) the NYPD is not a suable entity. The Court agrees with the latter two arguments, which are not
opposed by Guzman. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (noting that individuals are not subject to
liability under Title VII); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (noting that the NYPD is a nonsuable agency of the City of New York). The Court need not address the first three arguments, as all of Guzman’s
claims are subject to dismissal for the reasons described below.
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conjecture as to the true nature of the facts” will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d
Cir. 2010) (citations and internal quotation marks omitted). Nor will wholly implausible alleged facts
or bald assertions that are unsupported by evidence. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.
1991); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986).
B.
Discrimination Claims under Title VII, the NYSHRL, and §§ 1981 and 1983
Employment discrimination claims brought pursuant to Title VII, the NYSHRL, and
§§ 1981 and 1983 are all analyzed under the burden-shifting framework articulated by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Croons v. New York State Office of
Mental Health, 18 F.Supp.3d 193, 202 (N.D.N.Y. 2014) (citing Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010)). This framework places the initial burden of establishing a prima facie case of
discrimination on the plaintiff, who must demonstrate that: (1) she is a member of a protected class;
(2) she was qualified for the position in question; (3) she suffered an adverse employment action;
and (4) the adverse employment action took place under circumstances giving rise to an inference of
discrimination. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010). If the plaintiff meets
this initial burden, the burden shifts to the employer to offer a legitimate nondiscriminatory reason
for the adverse employment action. Id. at 492. If the employer does so, the presumption of
discrimination raised by the prima facie case is rebutted, and the burden returns to the plaintiff to
show that the employer’s stated reasons are merely a pretext for discrimination. Abdu-Brisson v. Delta
Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
In this case, it is undisputed that Guzman is a member of a protected class and that she is
qualified for her position as a police officer. Defendants argue, however, that Guzman cannot
establish that she suffered an adverse employment action or that any of the alleged adverse
9
employment actions occurred under circumstances giving rise to an inference of discrimination.
The Court agrees with this argument for the reasons described below.5
1.
Adverse Employment Action
An adverse employment action is an action that gives rise to “a materially adverse change in
the terms and conditions of employment.” Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640
(2d Cir. 2000) (internal quotation marks omitted). “To be ‘materially adverse,’ a change in working
conditions must be more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Id. (internal quotation marks omitted). Examples of materially adverse changes
include “a 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.” Id. (internal quotation marks omitted). “The key .
. . is that the plaintiff must show that the [employment action] created a materially significant
disadvantage.” Id. at 641 (internal quotation marks omitted). A plaintiff’s “subjective feelings”
concerning an employment action cannot establish that the action was materially adverse. Islamic
Soc’y of Fire Dep’t Pers. v. City of New York, 205 F. Supp. 2d 75, 87 (E.D.N.Y. 2002).
Here, Guzman complains that (1) she was temporarily assigned to work in an area of the
building that did not have air conditioning while she was pregnant; (2) she was ordered to change
into her police uniform while she was pregnant; (3) she was assigned to a foot post for at least a
month and a half; (4) her name was written in the Minor Violations Log on multiple occasions for
various purported infractions; (5) she was denied an Emergency Day when her daughter was sick; (6)
she was issued Command Disciplines for arriving late and for failing to immediately return to the
precinct after meeting with an assistant district attorney; (7) her request to transfer to the POPPA
In light of this conclusion, the Court is not required to address Defendants argument that there is a legitimate, nondiscriminatory reason for each of the alleged adverse employment actions at issue in this case, and that Guzman cannot
establish that these reasons are pretextual.
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Unit was denied; (8) she received a score of 3.5 out of 5 on her annual performance review; (9) she
was not given a steady assignment; (10) she was issued a letter of instruction for purportedly
violating the NYPD’s English-Only Policy; and (11) she was more closely monitored by her
supervisors than other officers. Guzman has conceded that none of these actions led to a decrease
in her salary or a loss in benefits or vacation days, see Guzman Dep. at 204-05, and that transferring
to the POPPA Unit would not have increased her salary or benefits (and in fact would have
decreased her overall income), id. at 146-47, 204.
The evidence does not permit a finding that any of the above actions created a materially
adverse change in the terms and conditions of Guzman’s employment such that they could be
deemed adverse employment actions. See, e.g., Uddin v. City of New York, 427 F. Supp. 2d 414, 429
(S.D.N.Y. 2006) (“[R]eprimands, threats of disciplinary action and excessive scrutiny do not
constitute adverse employment actions in the absence of other negative results such as a decrease in
pay or being placed on probation.” (internal quotation marks omitted)); Barounis v. New York City
Police Dep’t, No. 10 CIV. 2631 SAS, 2012 WL 6194190, at *12 (S.D.N.Y. Dec. 12, 2012) (holding that
being written up in the Minor Violations Log, being yelled at in front of co-workers, and being
issued Command Disciplines do not amount to adverse employment actions where such measures
did not result in penalties or a loss of benefits or time); Pimentel v. City of New York, No. 00 CIV
326(SAS), 2002 WL 977535, at *4 (S.D.N.Y. May 14, 2002); (“Denial of requested transfers [that]
did not involve an upgrade in position or increase in wages is not an adverse employment action.”
(internal quotation marks omitted)); Chukwuka v. City of New York, 795 F. Supp. 2d 256, 261
(S.D.N.Y. 2011) (“[T]he denial of vacation time does not generally rise to the level of an adverse
employment action.”); Guzman v. City of New York, No. 06-CV-5832 KAM LB, 2010 WL 4174622, at
*15 (E.D.N.Y. Sept. 30, 2010) (holding that assigning the plaintiff to a post that lacked air
conditioning while she was pregnant did not constitute an adverse employment action and noting
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that “[a]n assignment to work at an inferior facility, without more, does not constitute an adverse
employment action”); Weisman v. New York City Dep't of Educ., No. 03–CV–9299, 2005 WL 1813030,
at *7-8 (S.D.N.Y. Aug. 1, 2005) (holding that an assignment with “difficult working conditions” but
without a “diminution in benefits, title, or responsibilities” does not constitute an adverse
employment action).
In her opposition brief, Guzman contends that denying her request to transfer to the
POPPA Unit constituted an adverse employment action because she was seeking a transfer to both
“a better position . . . considering the workload and associated levels of stress” and to “a position
more suited to her skills and expertise.” Doc. 42 (“Guzman Opp.”) at 8 (citing, inter alia, Sotomayor v.
City of New York, 862 F. Supp. 2d 226, 255 (E.D.N.Y. 2012) (“In order to constitute an adverse
employment action, . . . [an] assignment must be materially less prestigious, materially less suited to
[the plaintiff’s] skills and expertise, or materially less conducive to career advancement.” (internal
quotation marks omitted))). Guzman, however, has not offered any objective, admissible evidence
that would permit a reasonable juror to make such a comparative assessment of the workload
associated with her current position and a position at the POPPA Unit and of her qualifications for
each position.
Guzman further argues that her being written up in the Minor Violations Log, being issued
Command Disciplines and a letter of instruction, and receiving rating of 3.5 out of 5 on her annual
performance review all constituted adverse employment actions because those actions prevented her
from transferring to the POPPA Unit. See Guzman Opp. at 9-10. Again, however, Guzman has not
offered any objective, admissible evidence that would permit a reasonable juror to make such a
finding. See, e.g., D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (“The non-moving
party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard
evidence showing that its version of the events is not wholly fanciful.”); Weinstein v. Garden City Union
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Free Sch. Dist., No. CV 11-2509 AKT, 2013 WL 5507153, at *29 (E.D.N.Y. Sept. 30, 2013) (“[A]
plaintiff cannot rely on their own speculative, and subjective, testimony to defeat a motion for
summary judgment.” (internal quotation marks omitted)). Furthermore, Guzman has not cited any
authority for the proposition that reprimands and performance reviews constitute adverse
employment actions where they play a role in the denial of a plaintiff’s lateral transfer request.
Finally, Guzman argues that her assignment to a foot post constituted an adverse
employment action because it diminished her opportunities to make arrests and thereby earn
overtime. Guzman Opp. at 9. This argument, too, is unavailing on the ground that it is unduly
speculative and unsupported by objective evidence. See Roman-Malone v. City of New York, No. 11
CIV. 8560 PAC, 2013 WL 3835117, at *6 (S.D.N.Y. July 25, 2013) (rejecting the plaintiff’s assertion
that “assignment to [a] foot post . . . reduced [her] ability to earn overtime” as lacking a sufficient
factual basis.). Accordingly, Guzman cannot establish that any of the conduct of which she
complains resulted in a materially adverse change in the terms and conditions of her employment,
and thus her discrimination claims under Title VII, the NYSHRL, and §§ 1981 and 1983 must fail.
2.
Inference of Discrimination
In any event, even assuming, arguendo, that Guzman could demonstrate that she suffered
from an adverse employment action, she cannot demonstrate that this action occurred under
circumstances giving rise to an inference of discrimination based on her membership in a protected
class. “A plaintiff can establish an inference of discrimination through direct evidence of
discriminatory intent, or through circumstantial evidence demonstrating that the employer treated
plaintiff less favorably than a similarly situated employee outside of his protected group.” Jean v.
Acme Bus Corp., No. CV 08-4885 ARL, 2012 WL 4171226, at *8 (E.D.N.Y. Sept. 19, 2012). Guzman
has not presented any direct evidence of discriminatory intent, and relies on the following
circumstantial evidence in her opposition papers: (1) Officer Mendoza’s testimony that she did not
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receive a letter of instruction for speaking to Guzman in Spanish on May 14, 2013; (2) Officer
Mendoza’s testimony that Guzman was assigned to a foot post more often than the typical officer;
(3) Guzman’s testimony that she was the only officer who was written up for not having her
flashlight on May 23, 2013; (4) Guzman’s testimony that waiting for a fellow officer after meeting
with a district attorney was a common practice; (5) Sergeant Garcia’s testimony that Lieutenant
Kahalf instructed him to ensure that Guzman wore her uniform while pregnant on May 22, 2012; (6)
Guzman’s testimony that Officer Liampachara, a white male colleague, was granted an Emergency
Day around the same time that she was denied an Emergency Day; and (7) Guzman’s testimony that
Officers Foley, Frykberg, and Greene, all of whom are white, were assigned “a nice little cushy office
where they [could] perform their duties and not be stressed with the [telephone switchboard]”
during their pregnancies. See Guzman Opp. at 10-14.
Addressing this evidence in turn, Officer Mendoza, like Guzman, identifies as a Hispanic
female. See Mendoza Dep. at 59. Consequently, Guzman’s suggestion that Officer Mendoza was
treated favorably because she did not receive a letter of instruction for speaking Spanish on May 14,
2013 in fact undermines Guzman’s race and gender discrimination claims. See, e.g., Turner v. Eastconn
Reg’l Educ. Serv. Ctr., No. 12–CV–788, 2013 WL 1092907, at *8–9 (D. Conn. Mar. 15, 2013) (holding
that the plaintiff’s allegation that a member of her same protected class “received favorable
treatment would undermine any inference that the [d]efendants were motivated by [discriminatory]
animus”).
As to the next three portions of testimony, Guzman has offered no evidence regarding the
identities, races, or genders of any similarly situated employees who were assigned to a foot post less
frequently than her or who were not disciplined for failing to immediately return to the precinct or
for failing to carry a flashlight. The testimony at issue thus plainly cannot demonstrate that
14
Defendants treated Guzman less favorably than a similarly situated employee outside of her
protected group.
Regarding Lieutenant Khalaf’s directive that Guzman change into her uniform while
pregnant, the record demonstrates that Lieutenant Khalaf issued this directive because it was
consistent with his understanding of the applicable Patrol Guide Procedures, not because of any
pregnancy-related animus.6 See Khalaf Dep. at 67-68. To the extent Guzman may disagree with
Lieutenant Khalaf’s understanding of those Procedures, such a disagreement is irrelevant to her
discrimination claims. See, e.g., DeLuca v. Allied Domecq Quick Serv. Restaurants, No. 03-CV-5142
(JFB)(AKT), 2006 WL 1662611, at *9 (E.D.N.Y. June 13, 2006) (noting that an employer may carry
out an adverse employment action “for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory reason” (internal
quotation marks omitted)).
With respect to Guzman’s testimony that she was treated less favorably than Officer
Liampachara, a white male, when she was denied an Emergency Day, Guzman also testified that she
did not know the date on which Officer Liampachara was granted an Emergency Day or who he
spoke to when making the request. See Guzman Dep. at 64. The Court agrees with Defendants
that, because Guzman has not offered “any evidence that the same supervisor granted this male
officer the same day off that she was denied,” and because Guzman has not offered any evidence
regarding “the needs of the precinct . . . on the day this male officer was granted the day off as
compared to the day [her request] was denied, [Guzman] cannot raise any inference of
discrimination based on any purported difference in treatment.” Doc. 33 (“Def. Mot.”) at 13;
Throughout her opposition papers, Guzman repeatedly references testimony by Lieutenant Khalaf that he did not
believe that Guzman was pregnant when he ordered her to change into her uniform. See, e.g., Guzman Opp. at 12-13; see
also Khalaf Dep. at 84-85. The Court does not understand how such testimony suggests that Lieutenant Khalaf
discriminated against Guzman based on her pregnancy status in connection with this incident. See Khalaf Dep. at 125
(“I went by the assumption that she was pregnant and I treated her as such. Whether I believed it – you asked me what
I believed, and I told you [that I did not believe it], but I go by the assumption that she is pregnant.”).
6
15
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (holding in this context that “the standard
for comparing conduct requires a reasonably close resemblance of the facts and circumstances of
plaintiff’s and comparator’s cases”).
Similarly, regarding Guzman’s testimony that she was treated less favorably than Officers
Foley, Frykberg, and Greene, all of whom are white females, when she was assigned to work at a
telephone switchboard desk without air-conditioning while pregnant, there is no evidence as to the
dates on which those employees were pregnant, who assigned them to work in an office, or the
circumstances under which they were so assigned. See Guzman Dep. at 167 (acknowledging that
“when you get pregnant [the NYPD] place[s] you based on need”). Moreover, Guzman testified
that neither Sergeant Garcia, Lieutenant Khalaf, nor Inspector Barry were her supervisors at the
time that this assignment occurred. Id. at 128-29, 167-69; White v. Conn., Dep't of Corr., No. 08–CV–
1168, 2010 WL 3447505, at *6 (D.Conn. Aug. 24, 2010) (“To be considered similarly situated, an
individual must have been treated more favorably by the same decisionmaker that dealt with the
plaintiff.”).
In any event, the issue of whether Guzman’s assignment to a switchboard desk in July and
August of 2010 was discriminatory is ultimately moot, as a reasonable juror could not find that this
assignment constituted an adverse employment action and Guzman does not argue otherwise in her
counseled opposition papers. See Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (“[I]n the
case of a counseled party, a court may, when appropriate, infer from a party’s partial opposition that
relevant claims or defenses that are not defended have been abandoned.”).7 Accordingly, Guzman
Similarly, while Guzman focuses on arguing that the denial of her request to transfer to the POPPA Unit constituted
an adverse employment action, she does not argue that this denial occurred under circumstances giving rise to an
inference of discrimination.
7
16
cannot establish that she suffered an adverse employment action that occurred under circumstances
giving rise to an inference of discrimination.
C.
Retaliation Claims under Title VII, the NYSHRL, and §§ 1981 and 1983
Retaliation claims under Title VII, the NYSHRL, and §§ 1981 and 1983,8 are all analyzed
under the burden-shifting framework described above. See Giscombe v. New York City Dep’t of Educ.,
39 F.Supp.3d 396, 401, 406 (S.D.N.Y. Aug. 12, 2014) (Title VII and § 1983); Moore v. Metro. Transp.
Auth., 999 F. Supp. 2d 482, 504 (S.D.N.Y. 2013) (NYSHRL); Azkour v. Haouzi, No. 11 CIV. 5780
RJS KNF, 2012 WL 1658349, at *5 (S.D.N.Y. May 11, 2012) (§ 1981). In order to establish a prima
facie case of retaliation, a plaintiff must demonstrate that (1) she engaged in protected activity; (2) the
employer was aware of that activity; (3) the plaintiff suffered a materially adverse action; and (4)
there was a causal connection between the protected activity and that adverse action. Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010). If the plaintiff meets this burden, the employer must
offer a legitimate non-retaliatory reason for the adverse employment action. Id. at 552-53. If the
employer does so, the burden returns to the plaintiff to demonstrate that the employer’s proffered
non-retaliatory reason is merely a pretext for retaliation. Id. at 553.
As to the first element of the prima facie case, “[t]he term ‘protected activity’ refers to action
taken to protest or oppose statutorily prohibited discrimination,” Cruz v. Coach Stores, Inc., 202 F.3d
560, 566 (2d Cir. 2000), superseded by statute on other grounds by N.Y.C. Local L. No. 85, and may take
the form of either formal or informal complaints, Conway v. Microsoft Corp., 414 F.Supp.2d 450, 466
(S.D.N.Y. 2006). An employee’s complaint qualifies as protected activity only if “the employee has a
good faith, reasonable belief that the underlying challenged actions of the employer violated the
8To
the extent Guzman intends to raise a § 1983 retaliation claim to vindicate rights conferred by the equal protection
clause, as opposed to the First Amendment, it is not clear whether such a claim exists. See generally Giscombe v. New York
City Dep’t of Educ., 39 F.Supp.3d 396, 404-05 (S.D.N.Y. Aug. 12, 2014) (discussing the discrepancies in the Second
Circuit’s case law regarding this issue). The Court, however, need not resolve this question here. Assuming, arguendo,
that such a claim exists, it cannot be established by Guzman for the reasons described below.
17
law.” Kelly v. Howard I. Shapiro & Associates Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013)
(internal quotation marks omitted). “A plaintiff’s belief on this point is not reasonable simply
because he or she complains of something that appears to be discrimination in some form.” Id. at
15. For example, in a case in which a plaintiff asserted that he had been terminated for complaining
that a white employee had been “chosen over qualified black and other minority applicants,” the
Second Circuit held that the plaintiff had failed to make out a prima facie case of retaliation because
his “objections at the time neither pointed out discrimination against particular individuals nor
discriminatory practices by [the employer]” and were thus “directed at something that, as it was
alleged, is not properly within the definition of an ‘unlawful employment practice.’” Manoharan v.
Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593-94 (2d Cir.1988) (quoting 42 U.S.C. §
2000e–2 (j) (1982)).
As to the second element of the prima facie case, “implicit in the requirement that the
employer have been aware of the protected activity is the requirement that it understood, or could
reasonably have understood, that the plaintiff’s opposition was directed at conduct prohibited by
[the statute at issue].” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.
1998).
In this case, though Guzman filed an EEOC charge and supplemented that charge twice, see
Schmelzer Decl., Exs. L, M, N, she testified that her retaliation claim is premised on the incident
that occurred on May 22, 2012, in which she was ordered to change into her police uniform while
pregnant, see Guzman Dep. at 106-07, 219. Similarly, while Guzman notes in her counseled
opposition brief that she filed and supplemented an EEOC charge, see Guzman Opp. at 19, she does
not argue that there was a causal connection between the filing or supplementing of that charge and
an adverse employment action. Rather, consistent with her testimony, she argues only that there
was a causal connection between the incident that occurred on May 22, 2012—which she contends
18
qualifies as a protected activity—and certain allegedly adverse employment actions at issue in this
case. See id. at 20-22. The Court is thus satisfied that, to the extent Guzman originally intended to
claim that she was retaliated against for filing or supplementing an EEOC charge, that claim has
been abandoned. See Jackson, 766 F.3d at 198.
No reasonable juror could find that Guzman’s conduct in connection with the incident that
occurred on May 22, 2012 constituted protected activity or that Defendants could reasonably have
understood that such conduct constituted protected activity. To reiterate this incident in a summary
fashion, Guzman initially objected to an order that she change from civilian attire into her police
uniform while she was pregnant on the ground that the pregnancy desk had informed her that she
was permitted to wear civilian attire. Guzman Dep. at 94-95. Guzman nonetheless attempted to
comply with this order but discovered that her pants did not fit. Id. Guzman was then asked to try
on a different pair of pants under the supervision of a female colleague but ultimately suffered an
anxiety attack. Id. Although the Court understands that this was an extremely stressful ordeal for
Guzman and does not intend to trivialize it, the Court cannot comprehend how any of Guzman’s
actions throughout this incident could constitute actions taken to oppose statutorily prohibited
discrimination, on the basis of pregnancy or otherwise. To the extent the relevant conduct was
Guzman’s initial objection to the order that she change into her police uniform while pregnant,
there are no factual or legal grounds for concluding that Guzman’s objection was based on a good
faith, reasonable belief that this order discriminated against her based on her pregnancy status. See
Kelly, 716 F.3d at 14.
In arguing that she engaged in protected activity in connection with this incident or that
Defendants could reasonably have understood that she engaged in protected activity, Guzman notes
that she testified that Sergeant Merkoski contacted the NYPD Office of Equal Employment
Opportunity (“OEEO”) after the incident occurred. Guzman Opp. at 21; Guzman Dep. at 228. As
19
Defendants note in their reply brief, however, Guzman did not testify that Sergeant Merkoski
contacted the OEEO specifically because of this incident, and there is otherwise no evidence in the
record as to why Sergeant Merkoski contacted the OEEO. Doc. 46 at 7. The testimony referenced
by Guzman thus is not in any way probative of whether she engaged in a protected activity or
whether Defendants were aware of such activity in connection with the incident at issue.
Accordingly, Guzman cannot establish either of the first two elements of her prima facie case with
respect her retaliation claims, and those claims must fail.
D.
Hostile Work Environment Claims under Title VII, the NYSHRL, and
§§ 1981 and 1983
In order to establish a hostile work environment claim, a plaintiff must demonstrate that
“the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of [her] employment and create an abusive working
environment.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (internal quotation marks
omitted). The plaintiff “must show not only that she subjectively perceived the environment to be
abusive, but also that the environment was objectively hostile and abusive.” Id. To analyze a hostile
work environment claim, the court must “look to the record as a whole and assess the totality of the
circumstances, considering a variety of factors including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.” Id.
(citation and internal quotation marks omitted).
Significantly, a plaintiff bringing a hostile work environment claim must demonstrate that
the hostile conduct at issue was carried out because of her membership in a protected class. See Patane
v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). Anti-discrimination statutes do not “set forth a general
civility code for the American workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (internal quotation marks omitted) (referring to Title VII); accord Alfano v. Costello, 294 F.3d at
20
365, 377 (2d Cir. 2002) (“Everyone can be characterized by sex, race, ethnicity, or (real or perceived)
disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work
environment cases to exclude from consideration personnel decisions that lack a linkage or
correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a
court of personnel appeals.”).
In this case, Guzman has offered evidence indicating, at best, that Defendants supervised
her more closely than her colleagues and unevenly issued her various reprimands and undesirable
assignments. For the reasons already indicated, however, the record is devoid of evidence that
Defendants carried out such conduct because of Guzman’s color, race, gender, or pregnancy status.
Lieutenant Khalaf testified, for instance, that Guzman was more closely supervised because he
believed that she was “disrespectful” and “did not have good judgment.” Khalaf Dep. at 107-08,
128-29. Whether these beliefs were accurate is beside the point; Guzman has offered no evidence
indicating that they were not honestly held. Cf. Casseus v. Verizon N.Y., Inc., 722 F. Supp. 2d 326, 341
(E.D.N.Y. 2010) (“[A]n employer’s belief that an employee engaged in misconduct need not be
correct, only honestly held.”). Notably, in her opposition papers, Guzman does not respond to
Defendants’ argument there is no evidence of a link between the alleged hostile conduct at issue and
her membership in a protected class. See Def. Mot. at 23; Guzman Opp. at 17-18. The Court thus
has no trouble concluding that Guzman’s hostile work environment claims must fail on this ground.
See Nwanji v. City of New York, 98 Civ. 4263(RLE), 2000 WL 1341448 at *3, *5 (S.D.N.Y. Sept. 15,
2000) (“While [plaintiff] did present ample evidence that his supervisors were constantly
reprimanding him and documenting his poor work performance, this evidence, absent a showing of
discriminatory animus, does not support a hostile work environment claim.”).
E.
Claims under the NYCHRL
21
Federal district courts have supplemental jurisdiction over state-law claims “that are so
related to” federal claims “that they form part of the same case or controversy.” 28 U.S.C § 1367(a).
Such jurisdiction, however, is “discretionary,” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173
(1997), and a district court “may decline to exercise supplemental jurisdiction over a claim” if it “has
dismissed all claims over which it has original jurisdiction,” 28 U.S.C. § 1367(c).
“The NYCHRL explicitly requires an independent liberal construction analysis in all
circumstances, an analysis that must be targeted to understanding and fulfilling what the statute
characterizes as the [NYCHRL’s] uniquely broad and remedial purposes, which go beyond those of
counterpart state or federal civil rights laws.” Armstrong v. Metro. Transp. Auth., No. 07 CIV. 3561
DAB, 2015 WL 992737, at *5 (S.D.N.Y. Mar. 3, 2015) (internal quotation marks omitted); see also
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (“[C]ourts must
analyze NYCHRL claims separately and independently from any federal and state law claims,
construing the NYCHRL’s provisions broadly in favor of discrimination plaintiffs, to the extent that
such a construction is reasonably possible.” (citation and internal quotation marks omitted)). As a
result, while “[c]ourts in this District tend to retain jurisdiction over NYSHRL claims when deciding
federal discrimination claims on the merits,” Otegbade v. New York City Admin. for Children Servs., No.
12 CIV. 6298 KPF, 2015 WL 851631, at *4 (S.D.N.Y. Feb. 27, 2015), they frequently decline to
exercise supplemental jurisdiction over NYCHRL claims, see, e.g., Vuona v. Merrill Lynch & Co., Inc.,
919 F.Supp.2d 359, 393-94 (S.D.N.Y. 2013) (resolving NYSHRL claims together with Title VII
claims, while declining to exercise supplemental jurisdiction over NYCHRL claims); Brown v. City of
New York, No. 14 CIV. 2668 PAE, 2014 WL 5394962, at *8 n.8 (S.D.N.Y. Oct. 23, 2014) (same).
In light of this law and the Court’s dismissal of all of Guzman’s federal claims, the Court
declines to exercise supplemental jurisdiction over Guzman’s claims under the NYCHRL.
IV.
Conclusion
22
For the foregoing reasons, Defendants’ summary judgment motion is granted with respect to
Guzman’s claims under Title VII (as amended by the PDA), the NYSHRL, and §§ 1981 and 1983,
and those claims are dismissed with prejudice. The Court declines to exercise supplemental
jurisdiction over Guzman’s claims under the NYCHRL and dismisses those claims without
prejudice. The Clerk of Court is directed to enter judgment accordingly and to close the case.
SO ORDERED.
Dated: March 18, 2015
New York, New York
_____________________________________
GREGORY H. WOODS
United States District Judge
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