Dietrich v. City of N.Y.

KEITH DIETRICH. Plaintiffs, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT,CHIEF OF INTELLIGENCE BUREAU THOMAS GALATI, NYPD COMMANDING OFFICER HOWARD REDMOND,NYPD LIEUTENANT KARL PFEFFER,AND NYPD SERGEANT PAUL BRISCOE Defendants.

No. 18 Civ. 7544 (CM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 23, 2020

DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

McMahon, C.J.:

After serving in the New York City Police Department ("NYPD") for 28 years, Plaintiff Keith E. Dietrich brought this action claiming that his career stalled out due to age discrimination. Dietrich alleges that his supervisors, who hoped to force him into retirement, gave him inferior assignments, denied him a promotion, and subjected him to a hostile work environment.

Dietrich seeks recovery from the NYPD and the City of New York ("the City"), as well as certain officers in his chain of command, including Chief of the NYPD Intelligence Bureau Thomas Galati ("Galati"), Inspector Howard Redmond ("Redmond"), Lieutenant Karl Pfeffer ("Pfeffer"), and Sergeant Paul Briscoe ("Briscoe") (collectively, the "Individual Defendants"), under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), NY. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8 et seq.

On May 16, 2019, the Court dismissed all of Dietrich's claims against the NYPD, the ADEA claim against the individual defendants (Count 1), and the hostile work environment claims against Chief Galati (Counts 4 and 5). See Dietrich v. City of New York, No. 18-cv-7544 (CM), 2019 WL 2236585 (S.D.N.Y. May 16, 2019) (Dkt. No. 61, "Dismissal Order"). The Court denied Defendant's motion to dismiss with respect to Dietrich's claims against the City, the failure to promote claims against the Individual Defendants, and the hostile work environment claims against Redmond, Pfeffer, and Briscoe.

Defendants now move for summary judgment on Dietrich's remaining claims. (Dkt. No. 88.) The motion is GRANTED, and the complaint is dismissed.

BACKGROUND

The following facts are drawn from the Defendants' Rule 56.1 statement of undisputed facts and Plaintiff's response, as well as the parties' declarations, depositions, and other documentary evidence submitted in connection with the Defendants' summary judgment motion. (See Dkt. Nos. 89-92, 110, 111.) For purposes of deciding the motion, the facts have been construed in the light most favorable to Plaintiff, and conflicts in the evidence have been resolved in his favor. See, e.g., Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Ass'n of Car Wash Owners Inc. v. City of New York, 911 F.3d 74, 80 (2d Cir. 2018).

Although Plaintiff failed to submit his own Rule 56.1 statement, the Court has conducted an independent review of the record, and confirmed that the facts set forth below are undisputed. See Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 658 (S.D.N.Y. 2012) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001) ("While a court is not required to considerwhat the parties fail to point out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement.") (internal quotations and citations omitted)).

A. The Parties

Plaintiff was a police officer employed by the NYPD since 1990. (See Dkt. No. 89 ("Def.'s 56.1),¶ 47.) After performing 18 months of investigative work, he received an automatic promotion to Detective Third Grade on October 12, 1997. (Id. ¶ 51.)

Defendant Chief Thomas Galati oversees the uniformed aspect of the Intelligence Bureau, exercising command over the units in which Plaintiff worked during the time period relevant to this lawsuit. (Id. ¶ 4.)

Defendant Inspector Howard Redmond reports directly to Chief Galati and is the Commanding Officer of the Municipal Security Section, which houses both units in which Plaintiff worked during the time period relevant to this lawsuit. (Id. ¶¶ 9, 10.)

Defendant Lieutenant Karl Pfeffer served under Redmond and was in charge of the Executive Protection Unit from 2014 to 2018. From 2014 to 2016, Pfeffer was Plaintiff's direct report. (Id. ¶ 27.)

Defendant Sergeant Paul Briscoe served as Plaintiff's supervisor in the Executive Protection Unit from April of 2017 to December of 2018. (Id. ¶ 34.)

B. Dietrich reaches the rank of Detective Second Grade.

There are three grades of detective in the NYPD, with Third Grade being the lowest and First Grade being the highest. (See Def.'s 56.1 ¶ 33.) Detectives receive promotions to the ranks of Detective Second Grade and Detective First Grade at the discretion of their chain of command. Most detectives receive a formal recommendation for promotion from theirsupervisor, the head of their particular unit, or another high-ranking NYPD official. (Id. ¶ 35.) All the detectives receiving recommendations are placed on a list known as a "grid" ranking the officers by years of experience; a certain number of the most senior officers on the grid are promoted an annual basis. (Dkt. 91, Dandrige Decl. Ex. A, Dietrich Tr. at 13:16-15:25.) Final decisions regarding promotions are made by the Police Commissioner's office. (Def.'s 56.1 ¶ 37.)

After serving in the NYPD for seventeen years, ten of which he spent at the rank of Detective Third Grade, Dietrich made Detective Second Grade in 2007, when he was 44 years old. (Id. ¶ 56.) In 2012, and again in 2013, Dietrich was recommended for the rank of Detective First Grade by his then-supervisor, but was not selected for promotion from the grid. (Id. ¶¶ 57-60.) In the Dismissal Order, the Court ruled that Dietrich's claims of age discrimination based on these rejections were time-barred. (Dismissal Order, at 12-13.)

C. Dietrich joins the Executive Protection Unit.

Twice snubbed, Dietrich sought a transfer to a unit where he could "get promoted before [he] retired." (Dietrich Tr. at 49:25-50:5.) He believed that joining the Mayor's "very prestigious" personal security detail, known as the Executive Protection Unit ("EPU"), would do the trick. (Id. at 49:10.)

The EPU is one of two units within the Municipal Security Section of the NYPD ("MSS"); the other is the Uniform Operations Unit ("UOU"). (Def.'s 56.1 ¶ 8.) The UOU stands guard at City Hall and Gracie Mansion, while the EPU provides personal security to the Mayor and his family. (Id. ¶¶ 11, 12, 14-16.) Most of the 90 members of the UOU are uniformed officers who work regular 8-hour shifts five days a week, while the 24 officers in the EPU work two 17-hour tours per week, with four days off in between. (Id. ¶¶ 17, 30.) Whether themembers of the UOU and the EPU are "intertwined units" whose members "can be used to fill vacancies or act as support in the other unit" is a disputed issue of fact, albeit one that turns out not to be material to the resolution of this case. (Dkt. No. 111, Pl's. 56.1 ¶ 28.)

Dietrich, who was only interested in joining the EPU, enlisted his connections within the NYPD to secure the recommendation of Deputy Police Commissioner John Miller, who expedited the transfer process. (Dietrich Tr. at 54:19-55:5.) Dietrich soon met with Defendant Redmond, the commanding officer of MSS, and Defendant Pfeffer, who supervised the EPU from 2014 to 2018. (Def.'s 56.1 ¶¶ 27, 71, 73.)

At their initial meeting, Redmond asked Dietrich if he planned to retire if promoted to Detective First Grade. (Dietrich Tr. at 55:13-56:3.) Redmond said that he preferred to staff the EPU with officers who were willing to serve for the remainder of the Mayor's time in office. (Id.) At the time, this could have meant a seven-year commitment, since the Mayor was in the first year of his first four-year term, and was eligible for reelection. Dietrich assured Redmond that he had no plan to retire, even if he were promoted. (Id.)

Dietrich joined the EPU on June 11, 2014. (Def.'s 56.1 ¶ 69.)

D. Dietrich is reassigned to the Uniform Operations Unit.

Dietrich's behavior and temperament on the job troubled the Individual Defendants during the first of his two stints with the EPU. (See Def.'s 56.1 ¶¶ 88-93.) In 2015, Redmond observed Dietrich watching videos on an iPad while on duty. Chief Galati noted that Dietrich "often . . . would be standing around with a toothpick in his mouth," a habit that displeased the Mayor's chief of staff. (Dkt. 91, Dandrige Decl. Ex. D, Galati Tr. at 112:5-19.) Redmond also reported finding Dietrich asleep in one of the security vehicles parked outside City Hall, which resulted in Pfeffer giving Dietrich a verbal warning. (Def.'s 56.1 ¶ 90.) Eventually, Galati andRedmond came to the conclusion that Dietrich was "difficult" and "not a team player." (See, e.g., Id. ¶ 91.)

Dietrich denies that the sleeping incident occurred, but admits the rest. (See Id. ¶¶ 88, 89, 93.) Although Dietrich claims that his performance reviews never mentioned these issues, neither party has submitted the performance reviews from Dietrich's first two years as a member of the EPU, and since it is undisputed that all but the sleeping incident occurred, it is not necessary to consider whether the performance reviews mentioned them or not.

In the fall of 2016, the UOU was understaffed due to retirement, while the EPU was overstaffed after the unit disbanded the detail charged with protecting the Mayor's children. (Id. ¶¶ 78-79.) To right-size both units, Redmond temporarily reassigned three EPU detectives to the UOU. (Id. ¶ 81.) Dietrich, then 53 years old, was one of the three, as was another Detective Second Grade, Alex Pelepelin, who was 49. The last transferee was Detective Third Grade Chris Fowler, who was 45 at the time of the reassignment. (Id. ¶¶ 82-87.)

When Dietrich learned that he was being reassigned, he was upset and frustrated; Briscoe claimed he overheard Dietrich...