Payne v. N.Y.C. Police Dep't

863 F.Supp.2d 169

Maxiimus PAYNE, Plaintiff,

v.NEW YORK CITY POLICE DEPARTMENT, City of New York, Defendants.

No. 08–CV–03993 (RRM)(RLM).

United States District Court, E.D. New York.

March 28, 2012.

Crystal J. Burden, Law Offices of Crystal J. Burden, Brooklyn, NY, for Plaintiff.

Andrea Mary O'Connor, Cindy E. Switzer, Ivan A. Mendez, Jr., New York City Law Department, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, District Judge.

Plaintiff Maxiimus Payne (“plaintiff”) brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), 42 U.S.C. § 1981 (“Section 1981”), the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. (“NYSHRL”), the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8–107 et seq. (“NYCHRL”), and New York state common law, asserting claims for employment discrimination, hostile work environment, and intentional infliction of emotional distress against defendants the New York Police Department (“NYPD”) and the City of New York (together, “defendants”). Plaintiff Maxiimus Payne, who self-identifies as an African–American man and a member of the Rastafarian religion, worked as a probationary police officer for the NYPD from July 11, 2005 until his termination on August 27, 2007. (Def. 56.1 Stmt. ¶¶ 1, 124; Pl. 56.1 Stmt. ¶¶ 2, 77.) The NYPD attributes his termination to his performance as demonstrated by performance evaluations and records of disciplinary action. (Def. Mem. of Law.) Plaintiff alleges that actions taken against him were motivated by discriminatory intent based on his race, religion, and ethnicity. (Compl. ¶¶ 14, 16, 22; Pl. Mem. of Law; Pl. 56.1 Stmt. ¶ 3.) On February 7, 2011, defendants moved for summary judgment on all claims. For the reasons set forth below, defendants' motion is GRANTED in part and DENIED in part.

I.BACKGROUND¹

A. Plaintiff's Employment History

1. The Police Academy

a. Employment

Plaintiff was appointed a probationary police officer of the New York Police Department (“NYPD”) and started at the Police Academy (“Academy”) on July 11, 2005. (Def. 56.1 Stmt. ¶¶ 1, 5; Pl. 56.1 Stmt. ¶¶ 2, 6.) Around that time, plaintiff converted from Christianity to the Rastafarian religion and started wearing his hair in dreadlocks as part of his religion. (Def. 56.1 Stmt. ¶¶ 4, 12; Pl. 56.1 Stmt. ¶ 4; Deposition of Maxiimus Payne (“Pl. Dep.”), at 31.) Plaintiff's supervisor at the Academy, Detective Tara Comiskey, appointed plaintiff to Company Sergeant due to plaintiff's military background, a position responsible for helping instructors keep the platoon in order. (Def. 56.1 Stmt. ¶ 6–7; Pl. 56.1 Stmt. ¶¶ 7–9.) Plaintiff was Company Sergeant for a few weeks before being removed from the position after questioning a gym instructor's order that the recruits run long distances in extreme heat. (Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Stmt. ¶ 11; Pl. Dep. at 35–39.)

By September 6, 2005, plaintiff had received three Deportment Cards, which are notations for minor rules violations. (Pl. 56.1 Stmt. ¶¶ 16, 30; Pl. 56.1 Stmt. ¶ 17, 19.) On that same date, plaintiff's squad commander, Lieutenant Herman Cruz, wrote a memorandum indicating plaintiff was anticipated to require entry-level monitoring, despite that he “hasn't accumulated a large amount of deportment cards,” because there were complaints from other recruits that he was a “bully.” (Def. 56.1 Stmt. ¶¶ 16–18; Pl. 56.1 Stmt. ¶ 23; Sept. 6, 2005 Cruz Memorandum, Switzer Dec'l Ex. D.) Despite that plaintiff “did well in [his] tests,” he was referred for a psychological evaluation based on the “bullying” complaints from his peers. (Sept. 14, 2005 Referral for Psychological Evaluation, Switzer Dec'l Ex. H.) The conclusions of the evaluation included that plaintiff's “[d]isciplinary issues are being handled as such, since they are not indicative of psychopathology” and “[a]s for the perception of him being intimidating and ‘a bully,’ there are no reports of his having any physical disputes or even threatening physical harm to anyone.” (Sept. 19, 2005 Closing Summary of Psychological Evaluation; Switzer Dec'l Ex. I.)

While at the Academy, plaintiff accumulated a total of twelve Deportment Cards.² (Def. 56.1 Stmt. ¶ 36; May 2, 2006 Memorandum of Lt. Loos, Switzer Dec'l Ex. E.) Officers can be issued Command Disciplines (“CDs”) for more significant misconduct. (Pl. 56.1 Stmt. ¶ 19.) While at the Academy, plaintiff received three CDs: one for leaving a classroom without permission and lying to an instructor when questioned, and two based on his accumulation of Deportment Cards. (Def. 56.1 Stmt. ¶¶ 19–20, 28–34; Reports of Violation of Rules, Switzer Dec'l Exs. G, J, K.) Plaintiff claims he did not formally challenge the CDs because he believed doing so may result in dismissal. (Pl. 56.1 Stmt. ¶ 20; Pl. Dep. at 50, 59.)

On a performance evaluation dated November 16, 2005, which contains a number of checkboxes and space for comments, Detective Comiskey rated plaintiff as “Competent” overall and in all categories, except “Self–Discipline,” which she rated “Low.” (Def. 56.1 Stmt. ¶ 37–43; Nov. 16, 2005 Comiskey/Mortis Evaluation, Switzer Dec'l Ex. L.) Detective Comiskey wrote that plaintiff “met the requirements,” “carried [him]self in a professional manner,” and “met the physical standards.” Comiskey's overall comments were that “[plaintiff] had difficulty conforming to paramilitary standards in the beginning of the [A]cademy. [Plaintiff] since has changed his demeanor and conformed to the [Academy's] standards.” ( Id.) The reviewer, Sergeant Pamela Mortis, also noted that plaintiff had “made positive changes in his behavior” and “established a better rapport with his peers.” The evaluation also contained a recommendation that his performance be monitored. ( Id.)

On November 17, 2005, an evaluation Committee discussed plaintiff's performance and also recommended monitoring based on plaintiff's “disciplinary record” and the recommendation of Detective Comiskey and plaintiff's “Team Leader.” (Def. 56.1 Stmt. ¶ 44; May 2, 2006 Memorandum of Lt. Loos ¶ 5; Pl. 56.1 Stmt. ¶ 35.) The memorandum of the Committee discussed complaints from other recruits, plaintiff's Deportment Cards and CDs, and the November 16 evaluation. (May 2, 2006 Memorandum of Lt. Loos.) The recommendation was endorsed by the Commanding Officer of the Academy. (Def. 56.1 Stmt. ¶ 44; Pl. 56.1 Stmt. ¶ 35; First Endorsement, Switzer Dec'l Ex. E.) As part of the monitoring, performance evaluations were scheduled for the 10–month, 16–month, and 22–month anniversaries of his employment. (Pl. 56.1 Stmt. ¶ 36; May 25, 2006 Memorandum of Deputy Inspector Donna Jones to the 70th Precinct, Burden Dec'l Ex. K.)

b. Alleged Discriminatory Treatment

Plaintiff testified that at the Academy, while he was Company Sergeant, Detective Comiskey approached him and suggested he cut his hair. (Def. 56.1 Stmt. ¶ 11; Pl. 56.1 Stmt. ¶ 11.) Plaintiff testified that he replied that his hairstyle was a ritual of his religion. (Pl. Dep. at 41.) Plaintiff testified that another instructor also said that plaintiff was “going to have a lot of problems” and that he should cut his hair. (Def. 56.1 Stmt. ¶¶ 13–15; Pl. Dep. at 61–64.) He also testified that other NYPD employees at the Academy also commented on plaintiff's hairstyle and suggested that he cut his hair. (Def. 56.1 Stmt. ¶¶ 13–15; Pl. Dep. at 61–64.)

2. The 70th Precinct

a. Employment

In or around January 2006, plaintiff graduated from the Academy and was assigned to the 70th Precinct in Brooklyn. (Def. 56.1 Stmt. ¶ 46; Pl. 56.1 Stmt. ¶ 41.) There, his first-line supervisors included Sergeant Edwin Boone. (Def. 56.1 Stmt. ¶¶ 47–48; Pl. Dep. at 76–78.) Plaintiff received three CDs while at the 70th Precinct, two for failure to appear in traffic court and a third for a parking violation. (Def. 56.1 Stmt. ¶¶ 56, 57, 61, 64; 2006 Command Discipline Log, Switzer Dec'l Ex. M.) Plaintiff testified that he verbally contested the CDs, but he did not formally appeal any of them. (Def. 56.1 Stmt. ¶¶ 58, 62, 64; P. Dec'l Ex. A, at 98–109.) Plaintiff testified that he did not formally challenge any of them because he believed it could result in his dismissal. (Pl. 56.1 Stmt. ¶ 20; Pl. Dep. at 59.)

Plaintiff's 10–month performance evaluation and subsequent evaluations used a five-point scale, with three meaning competent, lower than three meaning below standards, and above three meaning above standards. (Def. 56.1 Stmt. ¶ 66; Pl. 56.1 Stmt. ¶¶ 42–44.) The evaluation forms contain a page with a number of boxes for ratings on particular aspects of performance and space on the second page for typed comments. ( See, e.g., 10–month Leonard/Mascol Evaluation, Switzer Dec'l Ex. O.) Each performance evaluation lists a Rater and a Reviewer. The Rater, who is the direct supervisor of the officer being evaluated, fills out the performance evaluation after conferring with anyone else who directly supervised the officer during the rating period (Deposition of Inspector Donna Jones, Switzer Dec'l Ex. Y at 150–53.) The evidence does not reflect how the Reviewer is chosen, or what responsibilities a Reviewer has. The Rater for plaintiff's 10–month evaluation was Sergeant Colleen Leonard and the Reviewer was Lieutenant Mascol. (Def. 56.1 Stmt. ¶ 67; 10–month Leonard/Mascol Evaluation.) Plaintiff's overall rating was a three. (Def. 56.1 Stmt. ¶ 66; Pl. 56.1 Stmt. ¶ 42.) The written comments describe plaintiff as “always produc[ing] good steady activity in every area of policing ... meet[ing] all required performance standards and in some areas surpass[ing expectations;] [and] present[ing] no disciplinary problems.” (10–month Leonard/Mascol Evaluation, Switzer Dec'l Ex. O.) “He is courteous and compliant to supervisors and if he continues his progress he should make a fine police officer and be an asset to the police department.” ( Id.)

b. Alleged Discriminatory Treatment

Plaintiff...