Hernandez v. City of N.Y.

2016 NY Slip Op 30641(U)

DANIEL HERNANDEZ, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT,RAYMOND KELLY, Commissioner of the New York City Police Department,CAPTAIN TIMOTHY TRAINOR, Commanding Officer,Patrol Borough Brooklyn Investigations Unit, and INSPECTOR THOMAS MORAN,Commanding Officer of Patrol Borough Brooklyn North,all individuals are being sued in their individual and professional capacity, Defendants.

Index No. 504044/2013

New York Supreme Court

RECEIVED: April 13, 2016

April 4, 2016

NYSCEF DOC. NO. 36

At an IAS Term, Part 7 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 4^th day of April, 2016.

PRESENT: HON. LARA J. GENOVESI, Justice.

DECISION & ORDER

The following papers numbered 1 to 2 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed__________

1,2

Opposing Affidavits (Affirmations)__________

___

Reply Affidavits (Affirmations)__________

___

Other Defendant's Memorandum, Plaintiff's Memorandum in

Opposition and Defendant's Reply Memorandum__________

3, 4 & 5

Introduction

Upon the foregoing papers, defendants City of New York (City), the New York City Police Department (NYPD). Raymond Kelly, former Commissioner of the New York City Police Department, Captain Timothy Trainor, Commanding Officer, Patrol Borough Brooklyn North Investigations Unit, and Inspector Thomas Moran, Commanding Officer of Patrol Borough Brooklyn North, move for an order, pursuant to CPLR section 3211 (a) (7), dismissing the complaint on the grounds that it is barred by the doctrine of collateral estoppel and fails to state a cause of action.¹

Background

Plaintiff, who identifies himself as an Hispanic male and who is a New York City Police Officer, alleges that defendants discriminated against him based on his race, ethnicity and color. He alleges that the defendant's improperly restricted, among other things, his ability to obtain overtime and "paid detail" work assignments pending a hearing relating to a shooting incident. Furthermore, following the hearing, the defendant's continued these same limitations, in addition to placing plaintiff on "Level III dismissal probation" and "Level II performance monitoring." As alleged in the amended complaint, on July 21, 2008. plaintiff shot a suspect who was involved in a violation of an order of protection. Following this shooting incident, plaintiff was placed ontelephone switchboard/desk duty at the 79^th precinct. In August 2008. plaintiff was transferred to the "Borough Office" and given an assignment with limited responsibility and a total loss of overtime. In addition, as an administrative worker, plaintiff asserts that he was unable to obtain the same level of evaluations that an officer working "outdoors" can receive and thus, his ability to advance and receive promotions was limited. Thereafter, the suspect shot during the incident commenced an action against plaintiff in December 2009. On January 6, 2010, plaintiff was served with formal disciplinary charges in which it was alleged that, during the July 21, 2008 incident, plaintiff discharged his weapon in violation of department guidelines.

On July 13, 2011, plaintiff filed an internal complaint of race discrimination with the NYPD Office of Equal Employment Opportunity, and, on July 20, 2011, he commenced an action against the same defendants as are before the court here in the United States District Court for the Eastern District (EDNY). After filing his internal complaint with the NYPD and commencing the federal action, he was placed on "modified duty," which resulted in him losing his gun and his ID.² In discussions with the NYPD legal advocate on October 11, 2011, plaintiff was informed that he could not work out a plea deal with respect to the departmental charges, and that the legal advocate would seek to terminate plaintiff's employment with the NYPD.

Plaintiff commenced the instant action on July 17, 2013. "Shortly" after commencing the instant action, plaintiff states that he was stripped of his gun and shield,³ was required to serve a 30 day suspension.⁴ Upon finishing his suspension, plaintiff was placed on Level III dismissal probation and was initially notified that he would be assigned to the property clerk's office, a position where he was "guaranteed" training and approximately 30 hours of overtime per month. When he reported to the property clerk's office, however, he overheard the lieutenant at the property clerk's office mention "pending lawsuit." and was directed to report instead to the Viper 8 unit, a unit that persons on "full duty" like plaintiff are not assigned. At Viper 8, plaintiff is ineligible for overtime and paid details, and required to work day tours, which precludes him from earning nighttime differential pay that he had earned prior to his assignment to Viper 8. When plaintiff completed his one year of Level III dismissal probation, he was placed on Level II performance monitoring for 18 months, his assignment to Viper 8 continued, and he was informed that he would be assigned to Viper 8 for the duration of his career. With respect to these actions, both before and after the disciplinary hearing, plaintiff assertsthat similarly situated Caucasian or African American officers subject to departmental discipline did not suffer restrictions on their service preventing them from, among other things, earning overtime or transfer to paid detail assignments.⁵

Based on these factual allegations, plaintiff alleges that he was the victim of discrimination based on his race, color, and ethnicity (Amended Complaint counts I-III and VI-VIII). subjected to a hostile work environment (Amended Complaint counts V and X), and subjected to retaliation for making complaints of discrimination (Amended Complaint Counts IV and IX), all in violation of the New York State Human Rights Law (State HRL) (Executive Law § 296) and the New York City Human Rights Law (City HRL) (Administrative Code of the City of New York § 8-107). Defendants now move to dismiss the amended complaint pursuant to CPLR section 3211 (a) (7) on the ground that it is barred by the doctrine of collateral estoppel based on the order, dated February 13, 2013, dismissing the federal action commenced by plaintiff (see Hernandez v. City of New York, 2013 WL 593450 [E.D.N.Y. 2013]) and on that ground that the complaint fails to state a cause of action.⁶

The tactual allegations contained in the amended complaint in the federal action are essentially identical to the factual allegations contained in paragraphs 1 through 31 of the instant amended complaint that detail the alleged discriminatory actions of defendants through October 2011. In light of those factual allegations, plaintiff alleged causes of action based on 42 USC §§ 1981 and 1983 asserting that defendants discriminated against him based on disparate treatment and retaliated against him in violation of the parties collective bargaining agreement, the United States Constitution and the New York State Constitution. In addition to the federal claims, plaintiff also alleged claims premised on the State HRL and City HRL.

In deciding defendants' motion to dismiss made pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure, the District Court, after noting that the parties agreed that plaintiff was part of a protected class and qualified for the position in question, went on to find that the restrictions placed on plaintiff's job duties pending the hearing, including the assignment to desk duty, the loss of overtime hours and paid detail assignments, did not constitute a material adverse change in the terms or conditions of employment. As such, the court found that plaintiff failed to allege facts supporting a plausible claim of adverse employment action (Hernandez v. City of New York, 2013 WL 593450, *3).⁷ The court also found that plaintiff's complaint contained insufficient detailregarding the rank, the facts of the disciplinary complaints, and the post-shooting treatment of the alleged similarly situated comparators and thus, that the factual allegations of the complaint failed to support a plausible inference of discrimination (id. at 4-5). The court thus dismissed the section 1981 claim based on discrimination (id.). The court also dismissed the 42 USC 1983 claim because it found that the allegations of the complaint did not allow an inference of intentional discrimination in violation of the equal protection clause (id. at 5-6). Finally, the court the found that plaintiff failed to plead a retaliation claim under 1981 because the alleged protected activity of filing the NYPD Equal Employment Opportunity complaint occurred in July 2011. nearly three years after the only possible adverse employment action of placing plaintiff on desk duty in August 2008 (id. at 6). Having dismissed the federal causes of action, the court declined to exercise jurisdiction over plaintiff's claims under the State HRL and City HRL. and, as such, did not address their merits (id.).

Defendants' contend that the federal court's findings require dismissal of plaintiff's current amended complaint based on the doctrine of collateral estoppel.

Discussion

Collateral estoppel, or issue preclusion, prevents a party from "relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party" (Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349, 712 N.E.2d 647 [1990] [internal quotation marks omitted]). The doctrine applies when, "(1) the issues in both proceedings are identical, (2) the issue in the priorproceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits" (Conason v....