Harge v. City of New York

DANA HARGE, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.

No. 16-cv-5160 (LJL)

United States District Court, S.D. New York

August 26, 2021

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Plaintiff Dana Harge (“Plaintiff” or “Harge”) brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq. (“Title VII”), and under the Equal Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C § 1983. Plaintiff additionally brings state law claims under the New York City Human Rights Law, N.Y.C. Admin Code § 8-107, et seq. (the “NYCHRL”).^[1] Plaintiff alleges that his employers, the City of New York, Inspector Sylvester Ge, Captain Timothy Morgan, Captain John Sanford, Lieutenant Jonathan Lipke Lieutenant Mark Levine, and Sergeant Adrian Santiago (“Defendants”), discriminated against him on the basis of his race. Defendants move for summary judgment on all claims.

For the following reasons, the motion for summary judgment is GRANTED.

BACKGROUND

The following facts are drawn from the parties' 56.1 filings and are undisputed except where otherwise indicated.

I. The Relevant Parties Plaintiff is an African American police officer who joined the New York City Police Department's Highway Division in January 2008. Dkt. Nos. 95 ¶¶ 27, 28; 107 at 5 ¶¶ 27, 28. He joined Highway Unit 3. Dkt. Nos. 95 ¶ 28; 107 at 5 ¶ 28.

Defendant Timothy Morgan (“Morgan”) was appointed as Commanding Officer (“CO”), of Highway Unit 3 in November 2010, and left Highway Unit 3 in December 2014. Dkt Nos. 95 ¶ 3, 4; 107 at 1-2 ¶ 3, 4. In this capacity, he was the highest-ranking officer in the command and had final authority over matters including assignments shifts, and overtime. Dkt. Nos. 95 ¶ 6; 107 at 2 ¶ 6. In December 2014, Morgan became Executive Officer of the Highway District and remained in that role until he left the Highway District in October 2015. Dkt. Nos. 95 ¶¶ 5, 9; 107 at 2 ¶¶ 5, 9.

Defendant John Sanford (“Sanford”) became CO of Highway Unit 3 after Morgan left in December 2014, and he served in this capacity until he left the Highway District in April 2016. Dkt. Nos. 95 ¶¶ 11-12; 107 at 3 ¶¶ 11-12.

Defendant Sylvester Ge (“Ge”), joined the Highway District in January 2016, replacing Morgan; prior to that, he served as CO of IAB Group 27, which investigated allegations of serious misconduct in geographic areas that included Highway Unit 3. Dkt. Nos. 95 ¶¶ 14-17; 107 at 3-4 ¶¶ 14-17; 96-2 at 10057.

Defendant Marc Levine (“Levine”) is a supervisor at Highway Unit 3 and has been assigned to Highway Unit 3 since September 2006. Dkt. Nos. 95 ¶¶ 18-19; 107 at 4 ¶¶ 18-19.

Defendant Jonathan Lipke (“Lipke”) joined Highway Unit 3 in 2004 and was the Integrity Control Officer (“ICO”) of Highway Unit 3 until he was transferred to Highway Unit 1 in 2018. Dkt. Nos. 95 ¶¶ 21-23; 107 at 4 ¶¶ 21-23. This role entailed overseeing overtime, court appearances, and day-to-day integrity issues, and reviewing videos of officers' car stops. Dkt. Nos. 95 ¶¶ 24-25; 107 at 4-5 ¶¶ 24-25.

II. Plaintiffs Experience at Highway Unit 3

Plaintiff alleges that after he “received a prestigious award from MADD in 2014, ^[2] for leading the NYPD in making DWI arrests, he was targeted by his supervisors who did not want to see a person of color excel at Highway.” Dkt. No. 104 at 2.

Plaintiff joined Highway Unit 3 in January 2008. Dkt. Nos. 95 ¶ 28; 107 at 5 ¶ 28. Highway Unit 3 has a variety of mechanisms for recording officer performance. First, officers are evaluated annually and receive a score on their performance on a range from 1-5, with 5 being the highest. Dkt. Nos. 95 ¶ 32; 107 at 6 ¶ 32. Second, supervisors record minor procedure violations, which do not independently result in disciplinary action, in the minor violations log, noting the name of the person, the type of infraction, and whether any corrective action was taken. Dkt. Nos. 95 ¶¶ 36-37; 107 at 6-7 ¶¶ 36-37. Third, officers could receive a command discipline (“CD”), for an accumulation of minor violations or for individual more serious violations; a CD is “a written reprimand of varying levels . . . which if substantiated can lead to a penalty.” Dkt. Nos. 95 ¶¶ 38-39; 107 at 7 ¶¶ 38-39. CDs are one of three levels: “A, ” which is the least serious, and can result in a penalty up to five vacation days; “B, ” which is more serious, and can result in a penalty up to ten vacation days; and “C, ” which is the most serious, and can result in a penalty up to fifteen vacation days. Dkt. Nos. 95 ¶¶ 40-43; 107 at 7 ¶¶ 40-43.

If an officer declines to accept a CD penalty, charges and specifications-formal complaints in the NYPD's disciplinary process that can result in penalties ranging from written reprimand to termination-are issued. Dkt. Nos. 95 ¶¶ 123-124; 107 at 25 ¶¶ 123-124. One such penalty includes dismissal probation; an officer on dismissal probation is monitored and can be terminated for any violation during the probationary period. Dkt. Nos. 95 ¶ 176; 107 at 36 ¶ 176.

A. Plaintiff's Performance Record and Disciplinary History Prior to Receiving the MADD Award

Plaintiff received a 4 on his 2008 annual evaluation, and a 4.5 on his 2009 annual evaluation. Dkt. Nos. 95 ¶¶ 31, 33; 107 at 6 ¶¶ 31, 33.

Plaintiff was placed in the minor violations log in June 2010 by Lipke for being off-post. Dkt. Nos. 95 ¶ 35; 107 at 6 ¶ 35. Plaintiff received a verbal warning from Lipke in October 2010 for having his marked police car, his RMP, parked outside of a personal residence while he was on duty; Plaintiff was not placed in the minor violations log or given a CD for this incident. Dkt. Nos. 95 ¶¶ 45, 47; 107 at 8 ¶¶ 45, 47. Plaintiff received a 4.5 rating on his 2010 annual evaluation. Dkt. No. 95 ¶ 48; 107 at 8-9 ¶ 48.

Group 27, which investigated allegations of serious misconduct in geographic areas that included Highway Unit 3, substantiated three violations against Plaintiff in 2011, including being “unprepared for Traffic Violations Bureau Court in that he failed to appear with the Moving Violation Summons and his Departmental Activity Log, ” having “improper activity log entries for the issuance of the Summons, ” and “fail[ing] to safeguard his own copy of the Summons.” Dkt. Nos. 95 ¶ 49; 107 at 9 ¶ 49. Plaintiff received, and accepted, a “B” CD for these violations, along with a penalty of three vacation days. Dkt. Nos. 95 ¶ 50; 107 at 9 ¶ 50. Plaintiff received a 4.5 rating on his 2011 annual evaluation. Dkt. Nos. 95 ¶ 51; 107 at 9 ¶ 51.

In April 2012, Plaintiff was again placed in the minor violations log by Lipke for failing to sign out at court and was verbally reprimanded. Dkt. Nos. 95 ¶ 52; 107 at 9 ¶ 52. Plaintiff received a 4.5 on his 2012 annual evaluation. Dkt. Nos. 95 ¶ 53; 107 at 9-10 ¶ 53.

In March 2013, Plaintiff received a CD for failing to sign in or out of court; subsequently, Morgan removed Plaintiff from the conditions post-which Morgan had assigned Plaintiff to in 2011-and returned him to regular patrol. Dkt. Nos. 95 ¶¶ 55-57, 59-60; 107 at 10 ¶¶ 55-57.This removal was only temporary; Morgan later returned Plaintiff to the DWI conditions post. Dkt. Nos. 95 ¶ 61; 107 at 11 ¶ 61. In October 2013, Santiago entered Plaintiff into the minor violations log, and gave him a verbal reprimand. Dkt. Nos. 95 ¶ 62; 107 at 11 ¶ 62. Plaintiff received a 4.5 on his 2013 annual evaluation. Dkt. Nos. 95 ¶ 63; 107 at 11 ¶ 63.

III. Plaintiff's Performance Record and Disciplinary History After Receiving the MADD Award

In February 2014, Highway's STOP DWI Coordinator nominated Plaintiff for the MADD award; he received the award in March 2014 at a ceremony which Morgan attended. Dkt. Nos. 95 ¶¶ 64-66; 107 at 11 ¶¶ 64-66. “Plaintiff attributes his receipt of the MADD award to the decline in his relationships with his supervisors, increased scrutiny of his performance, and discipline for what he considers to be trivial matters.” Dkt. Nos. 95 ¶ 67; 107 at 11-12 ¶ 67.

In March 2014, Inspector Paul Ciorra, who was CO of the Highway District, recommended Plaintiff for promotion to Detective Specialist. Dkt. Nos. 95 ¶ 69; 107 at 12 ¶ 69.

In June 2014, Lipke entered Plaintiff into the minor violations log for being out of uniform and for omitting an entry in his memo book, and Plaintiff was given a verbal warning and admonishment for these infractions. Dkt. Nos. 95 ¶¶ 71-72; 107 at 13 ¶¶ 71-72. Defendants note that Lipke “also placed white officers in the minor violations log for being out of uniform.” Dkt. Nos. 95 ¶ 73; 107 at 13-14 ¶ 73. Later in June, Plaintiff was again entered into the minor violations log for failing to use his mobile vision. Dkt. Nos. 95 ¶ 74; 107 at 14 ¶ 74. Defendants note that Plaintiffs partner, who is Caucasian, was also placed in the minor violations log for the same violation. Dkt. Nos. 95 ¶¶ 75-76; 107 at 14 ¶¶ 75-76. Plaintiff also received an “A” CD from Lipke in June 2014 for being off-post and for failing to properly monitor his department radio Morgan adjudicated the CD and substantiated the claim that Plaintiff failed to notify the Highway Bureau desk after signing out of court. Dkt. Nos. 95 ¶¶ 77-78; 107 at 14 ¶¶ 77-78. As a penalty for this CD, Plaintiff's assignment was changed again and he was returned to patrol and assigned to day tours. Dkt. Nos. 95 ¶ 79; 107 at 14-15 ¶ 79. Plaintiff claims that this day tour-only assignment impacted his ability to spend time with his children and that Morgan was aware that Plaintiff has children; Defendants assert that Morgan was not aware that Plaintiff had childcare obligations. Dkt. No. 107 at 14-15 ¶¶ 79-80. Sanford did not return Plaintiff to his conditions post after his reassignment and asserted that this was because Plainti...