for the Southern District of New York
Larye Neishlos,
Plaintiff,
-against-
The City of New York and
New York City Police Department,
Defendants.
00 Civ. 914 (SAS)
2003 U.S. Dist. Lexis 19554
October 31, 2003, Decided
November 3, 2003, Filed
OPINION AND ORDER
Shira A. Scheindlin, U.S.D.J.:
Plaintiff Arye Neishlos, a Russian Jewish male, brings this action against the City of New York (the “City”) and the New York City Police Department (“NYPD”) n1 alleging discrimination on the basis of national origin and religion and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). The City now moves for summary judgment.
Neishlos complains about the following acts: (i) a pattern of harassment by training supervisor Sgt. Emmanuel Katranakis n2 including harassment, discriminatory treatment, intimidation, and threats of termination; (ii) falsification of exams and performance evaluations; (iii) failure to offer remedial training or allow Neishlos to retake any exams; (iv) failure to investigate claims of hostile environment and discriminatory conduct; and (v) wrongful termination in retaliation for Neishlos’ complaint to the NYPD Office of Equal Employment Opportunity (“OEEO”). Neishlos also alleges that he was fired in violation of the Rules and Regulations of the City Personnel Director regarding provisional employment n3 and that his own treatment “reflects a wider pattern of discrimination against Jews in general and Russian Jews in particular.” Complaint P 21.
I. FACTUAL BACKGROUND
On September 30, 1997, Neishlos was hired as a provisional Criminalist Level III by the NYPD and assigned to the Police Laboratory. See Defendants ‘ Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Def. 56.1”) P 6. In December 1997, he was transferred to the new Police Laboratory (“Laboratory”) in Jamaica, Queens to begin specialized training. See id. P 9. In February, 1998, Neishlos was transferred from his original unit, Arson and Explosives, to the Controlled Substance Analysis Section (“CSAS”). See id. PP 9, 12, 14. Neishlos failed a written examination on January 21, 1998, but claims that his transfer was “a result of a dire personnel shortage and need for Criminalists in the CSAS” and unrelated to that failed exam. See id. P 14; Plaintiff’s Statement Pursuant to Local Rule 56.1 (“Pl. 56.1”) P 14.
Neishlos was the only Russian Jew to hold the position of Criminalist during the period of his employment (9/97 - 8/98). See List of Analysts (undated), Ex. 41 to the Amended Affirmation of Boris Kogan, plaintiff’s attorney, in Opposition to Defendants’ Motion for Summary Judgment (“Kogan Aff.”). Of 121 individuals employed in 1997 and 1998, nine individuals were identified as Jewish. See 1/1/97 to 12/31/98 List of Forensic Investigations Division Employees, Ex. 40 to Kogan Aff. Seven of those nine were also identified as having been born in Russia. See id. Only one, presumably Neishlos, was a Criminalist; the others were in the lower-ranked positions of Chemist or Assistant Chemist. See id.
A. Incidents
of Harassment
Neishlos’s problems with the NYPD began in February 1998 with his transfer to CSAS. See Def. 56.1 P. 13; 8/21/03 Affidavit of Arye Neishlos in Opposition to Defendants’ Motion for Summary Judgment (“Neishlos Aff.”) P 5. Katranakis, the training supervisor for CSAS, engaged in a number of activities that the NYPD terms “counseling” but Neishlos calls “harassment”. See, e.g., Def. 56.1 PP 25, 30; Pl. 56.1 PP 25, 30.
In February, 1998, Katranakis called Neishlos into his office to ask him why he was not in the training room with the other trainees. See Neishlos Aff. PP 7-11; 4/30/02 Deposition of Arye Neishlos (“Neishlos Dep.”), Ex. D to 9/15/03 Amended Declaration of Diana E. Goell in Support of Defendants’ Motion for Summary Judgment (“Goell Dec.”) at 122-24. Neishlos informed Katranakis that he made frequent trips to the bathroom as a result of his blood pressure medication. See Neishlos Aff. P 7; Neishlos Dep. at 123. Despite this explanation, Katranakis questioned Neishlos four or five more times between February and May, 1998, about his absence from the training rooms. See Neishlos Aff. PP 7-11.
On three other occasions in March, 1998, Katranakis reprimanded Neishlos. In the second week of March, Neishlos was using the phone in a co-worker’s office to call NYPD headquarters at the instruction of another supervisor. See id. PP 12-13; Neishlos Dep. at 146-50. Katranakis entered the room and yelled at Neishlos that he had no right to be there. See Neishlos Aff. PP 12-13; Neishlos Dep. at 146-50; Def. 56.1 P. 26. Defendants claim that Katranakis did not yell but “counseled” Neishlos about Laboratory access regulations. See Def. 56.1 P. 26.
On March 25, 1998, Neishlos was instructed to perform a test on a sample of cocaine. See id. at P 27. Approximately twenty minutes later, Katranakis asked Neishlos why he had not completed the test and Neishlos replied that he could not find the sample. See id. P 28. Neishlos said that he felt ill, and Katranakis told him “if you don’t feel well, take sick leave,” and counseled him about his below-standard performance. See id. PP 29-30. Neishlos claims that when he could not find the sample, Katranakis “began screaming” at him, ordered him into his office, and “made some derogatory remarks.” See Pl. 56.1 PP 2930 . Neishlos says he began to feel ill as a result of Katranakis’s verbal attack. See id. P 29.
Finally, on March 31, 1998, Katranakis observed Neishlos on the third floor of the laboratory. See Def. 56.1 P. 31. At the time, Neishlos was assigned to the fifth floor. See id. When Katranakis confronted Neishlos and asked him to explain his presence, Neishlos said that he was there for personal reasons and asked why the third floor lobby was restricted. See id. PP 32-34. Neishlos claims Katranakis confronted him in an intimidating manner and threatened to report his behavior, although he claims he was doing nothing wrong. See Pl. 56.1 PP 32-34.
The “main” incident of disparate treatment and harassment occurred on May 15, 1998. See Def. 56.1 P 36. Neishlos informed Katranakis that he needed to leave two hours early for a doctor’s appointment but that he would not take lunch so that he only needed to take one hour of sick leave. See id. This was a standard practice among NYPD laboratory employees. See Pl. 56.1 P. 37. Katranakis denied the request. See Def. 56.1 P. 37. Defendants and Katranakis say the request was denied because the trainees’ strict training schedule required that all trainees take lunch at the same time. See id. Neishlos claims Katranakis only told him, “Everyone else is allowed, but you are not.” See Pl. 56.1 P. 37; Neishlos Aff. P 25; Neishlos Dep. at 155. Neishlos next demanded that Katranakis discuss the denial with him in the presence of Rick Vaidya, his union representative. See Def. 56.1 P. 39. Katranakis gave Neishlos a direct order to discuss the matter in private without representation, and advised him that failure to obey would result in suspension. See id. Neishlos complied, and Katranakis spoke to him about the ramifications of disobeying a direct order and advised him that his conduct was unprofessional. See id. P 40. Neishlos was “threatened, intimidated, and humiliated” by the exchange. See Pl. 56.1 P. 40.
B. Neishlos’s
Performance on Exams in CSAS
After his transfer to CSAS, Neishlos continued his training as a Criminalist III under Dr. David Grossman and Rammi Tandon. See Def. 56.1 P. 17. The entire CSAS training unit was supervised by Katranakis. On March 6, 1998, Neishlos received a score of eighty-two on a competency exam. See Pl. 56.1 P 19(a); Competency Exam Cover Sheet (undated), Ex. 6 to Kogan Aff. at 1. Defendants assert that the passing grade for this examination was eighty-five. See Def. 56.1 P. 20. Neishlos argues that the passing grade for all written examinations was eighty and that defendants altered the passing grade of the exam as a pretext for termination. See Pl. 56.1 P 19-21; 8/16/03 Affidavit of David J. Grossman, former trainer for CSAS (“Grossman Aff.”) PP 11-12; 8/13/03 Affidavit of Lowell Parker, former trainer for CSAS (“Parker Aff.”) PP 6-7.
On May 19, 1998, Neishlos failed a practical examination for which the passing score was 100%. See Def. 56.1 PP 23-24. Neishlos does not deny failing that examination but claims that five of seven trainees failed, while Defendants’ records indicate only two trainees failed. See id. P 24; 5/19/98 Practical Exams for James DiSarno, Dije Ndreu, and Clyde Anthony, Ex. 13 to Kogan Aff. at 1-6; Police Laboratory CSAS Training Unit (Training Group A) Grades for Practical Examinations and Grades for Written Examinations (“CSAS Grades”), Ex. J to Goell Dec. at 1-2. Defendants claim that Katranakis counseled Neishlos on his exam performance. See Def. 56. 1 P 25. Neishlos denies ever being counseled or offered the opportunity to retrain or retake either examination. See Pl. 56.1 PP 22-23, 25.
C.
Performance Evaluation, Complaints, and Termination
On June 25, 1998, Katranakis helped prepare a draft memo recommending Neishlos’s employment be terminated because of poor performance. See Def. 56.1 P. 44. Neishlos contends that this document, identical to one dated August 7, 1998, was falsely created and back-dated after his complaint to the OEEO on August 6, 1998. See Pl. 56.1 P. 44.
On July 30, 1998, Katranakis prepared a performance evaluation for Neishlos. See Def. 56.1 P. 45. This evaluation stated that Neishlos’s performance was well below standards and recommended termination. See id. Katranakis prepared a similar evaluation for another trainee, Steve Castiglione, who is neither Russian nor Jewish. See id. P 46. Castiglione failed two or three written examinations and three practical examinations despite receiving additional training and retaking some exams, while Neishlos failed at most one written examination and one practical examination. See Pl. 56.1 P. 46; CSAS Grades, Ex. J to Goell Dec. at 1-2. On July 31, 1998, Neishlos received a copy of his performance evaluation. See Def. 56.1 P. 49.
On August 3, 1998, Neishlos wrote a letter to Lt. Josef Nolte disputing the accuracy of his evaluation, specifically whether he failed two written examinations, whether he was ever counseled or offered retraining, and whether he refused additional training. See id. P 52; 8/3/98 Letter to Lt. Nolte, Ex. C to Goell Dec. at 7-8. The letter did not contain any allegations of discrimination based on ethnic origin or religion. See id. On August 5, 1998, Neishlos’s access to the Laboratory was restricted pending termination. See Def. 56.1 P 54. On August 6, 1998, Neishlos filed a complaint with the OEEO alleging that Katranakis evaluated him unfairly and gave false information on his performance evaluation. See id. P 55. Because Neishlos did not allege discrimination based on his ethnic origin or religion, the OEEO referred his complaint to the Internal Affairs Bureau (“IAB”) for further investigation. See id. PP 56-57. IAB subsequently conducted an investigation and determined that the allegations were unfounded. See id. P 64.
On August 7, 1998, Neishlos’s termination was recommended by Dr. Richard J. Wilk, Director of the Laboratory. See id. P 58. Termination was approved by Lewis Stahl and Police Commissioner Howard Safir on August 11, 1998, and Neishlos’s employment was officially terminated on August 12, 1998. See id. PP 59-63.
Shortly after his termination, Neishlos filed a claim with the New York State Department of Human Rights (“SDHR”) and the United States Equal Employment Opportunity Commission (“EEOC”) alleging discrimination on the bases of ethnic origin and religion and in retaliation for his complaints about disparate treatment. See id. P 65; 10/1/98 SDHR Intake Questionnaire, Ex. 39 to Kogan Aff. at 5. On September 8, 1999, SDHR determined that there was no probable cause for Neishlos’s claims, and on November 8, 1999, the EEOC adopted SDHR’s findings and issued a notice of right to sue. See Def. 56.1 PP 65-66; 9/8/99 Determination and Order After Investigation in Federal Charge No: 16G990117 Arye Neishlos Against The City of New York; New York City Police Department, Ex. O to Goell Dec. at 1-2.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is permissible “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “An issue of fact is genuine ‘if the evidence is such that a jury could return a verdict for the nonmoving party.’” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). A fact is material when “it ‘might affect the outcome of the suit under the governing law.’” Id. (quoting Anderson, 477 U.S. at 248).
The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970)). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, he “‘must do more than simply show that there is some metaphysical doubt as to the material facts,’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)), and he “‘may not rely on conclusory allegations or unsubstantiated speculation.’” Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). See also Gayle, 313 F.3d at 682. Rather, the non-moving party must produce admissible evidence that supports his pleadings. See First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289-90, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). In this regard, “the ‘mere existence of a scintilla of evidence’ supporting the non-movant’s case is also insufficient to defeat summary judgment.” Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).
In determining whether a genuine issue of material facts exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party’s favor. See id. Accordingly, the court’s task is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate “if there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party.” Marvel, 310 F.3d at 286 (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).
“The salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation.” Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). Courts within “the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination.” Scaria v. Rubin, 1996 U.S. Dist. Lexis 9659, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff’d, 117 F.3d 652 (2d Cir. 1997). Indeed, “it is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.” Abdu-Brisson, 239 F.3d at 466.
However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer’s intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because “employers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation marks and citation omitted, brackets in original). But even where an employer’s intent is at issue, “a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). “[A] party may not ‘rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.’” Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995) (quoting Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)).
III. DISPARATE TREATMENT CLAIM
A. Legal Standard
Title VII makes it unlawful for an employer:
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .
42 U.S.C. § 2000e-2 (2003). A Title VII disparate treatment claim can be asserted if an employer treats someone “less favorably than others because of [his] race, color, [or] religion.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 123 L. Ed. 2d 338, 113 S. Ct. 1701 (1993).
The Supreme Court has “established an allocation of the burden of production and an order for the presentation of proof in . . . discriminatory treatment cases.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). Where, as here, the plaintiff has not alleged any direct evidence of discrimination, he must proceed under the burden-shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Under this analysis, a plaintiff must first prove a prima facie case of discrimination. See id. at 802; see also Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the plaintiff establishes a prima facie case, “a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action.” Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). “If the defendant meets this burden of production, ‘the presumption drops out of the analysis,’ and the plaintiff must prove that he or she was actually the victim of intentional discrimination.” Little v. National Broad. Co., 210 F. Supp. 2d 330, 376 (S.D.N.Y. 2002) (quoting Farias, 259 F.3d at 98).
B.
Plaintiff’s Prima Facie Case
Neishlos bases his claim of ethnic origin and religious discrimination on the following allegations: he was improperly evaluated; denied equal access to retraining and make-up exams; denied equal treatment in substituting a lunch hour for medical leave; unfairly targeted for disciplinary action; and unfairly terminated based on improper evaluations.
To establish a prima facie case of disparate treatment, a plaintiff must show that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003).
Defendants do not dispute that Neishlos is a member of a protected class as to his religion and ethnic origin. However, they argue that Neishlos’s performance was deficient both because he failed examinations and because his behavior was inconsistent with the paramilitary structure of the NYPD. See Defendants’ Amended Memorandum of Law in Support of their Motion for Summary Judgment (“Def. Mem.”) at 7-8. They further argue that there is no evidence that any of the actions taken were motivated by discriminatory animus. See id. at 8-10.
1. Evidence of Discriminatory Animus
Neishlos alleges that Katranakis “subjected [him] to ridicule” at various times throughout his employment at the NYPD. Complaint P 15. However, Neishlos cannot recall the details of any of those derogatory remarks, nor does he allege that any of Katranakis’s remarks contained any reference to his religion or ethnic origin. See Neishlos Dep. at 124-25. In affidavits in support of his allegations, other former employees state that there has been a “consistent, long-term, and well-documented abuse of power by Lieutenant Katranakis” and that Katranakis “single-handedly drove out from the Police Laboratory half of the training class and both co-Principal Trainers.” See Parker Aff. P 14; Grossman Aff. P 17. However, these statements do nothing to support an inference of discrimination. Instead, they tend to support a picture of a supervisor who is unpleasant, unfair, and arbitrary -- but not ethnically or religiously biased.
Neishlos points out that he was the only Criminalist of Russian Jewish descent, but has presented no evidence to show that this was anything but coincidence. He also claims that other Russian Jews held lower positions in the NYPD Laboratory, and that some of those individuals had advanced degrees and experience that warranted higher-level positions. However, he neither makes specific claims about the relative qualifications of those individuals nor provides any evidence in support of the statement. An inference of discrimination from this bald assertion would be unreasonable and cannot be made. See Bickerstaff, 196 F.3d at 452.
Although many facts relevant to determining the quality of Neishlos’s job performance are in dispute, none of them raise a material issue of fact with respect to discriminatory animus. Accordingly, Neishlos has failed to provide proof from which a reasonable juror could find a prima facie case of discrimination. Thus, his disparate treatment claim must be dismissed.
IV. HOSTILE ENVIRONMENT CLAIM
A. Legal Standard
Neishlos also argues that he was subjected to a hostile work environment. He claims that Katranakis singled him out for ridicule and intimidation. Complaint PP 12-15. Specific incidents of harassment include Katranakis reprimanding Neishlos for using the bathroom during training, for using the phone, for being in a public area, and for attempting to substitute his lunch hour for sick time. See supra Part I.A.
A prima facie claim of hostile work environment “requires a showing (1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). In addition, it is “axiomatic” that the alleged conduct must occur because of the victim’s religion or ethnic origin. Id.; see also Brown v. Henderson, 257 F.3d 246 (2d Cir. 2001). Defendants argue that the incidents Neishlos allege were not motivated by discriminatory animus and were not severe and pervasive. See Def. Mem. at 13-17.
B. Plaintiff’s
Prima Facie Case
Plaintiff’s claim of hostile work environment fails on the same grounds as his claim of disparate treatment. There is no evidence of discriminatory animus sufficient to raise a material issue of fact. See supra Part IV.B.1. Because the actions that allegedly created a hostile work environment must have occurred as a result of the plaintiff’s religion or ethnic origin, Neishlos has failed to establish a prima facie case for hostile work environment. n4
V. RETALIATION CLAIM
A. Legal Standard
Finally, Neishlos alleges that he was terminated in retaliation for his complaints of discrimination to Lt. Nolte and the OEEO. A prima facie case of retaliation is established when a plaintiff shows that: (1) he engaged in protected activity; (2) defendant was aware of that activity; (3) he was subject to an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. See Collins v. New York City Transp. Auth., 305 F.3d 113, 118 (2d Cir. 2002); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
It is undisputed that defendants were aware of Neishlos’s complaints to Lt. Nolte and the OEEO, and that termination is an adverse employment action. Defendants claim that Neishlos did not engage in a protected activity because he could not have reasonably believed that the actions about which he complained were discriminatory. See Def. Mem. at 19-20. They also argue that Neishlos already knew he was being recommended for termination before he made either complaint, and that this destroys any inference of a causal connection between his complaints and his subsequent termination. See id. at 20-21. Neishlos argues that he did not have to explicitly raise ethnic and religious discrimination in his complaints in order to engage in protected activity under Title VII. See Plaintiff’s Amended Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (“Pl. Mem.”) at 17. He also argues that the process of termination had not yet begun at the time he made his complaints. n5 See id. at 18.
B.
Plaintiff’s Prima Facie Case
1. Protected
Activities
The two complaints that Neishlos argues are protected activities are his letter to Lt. Nolte and his complaint to the OEEO. See id. at 15. In order to be protected under Title VII, the conduct complained of need not be an activity prohibited by Title VII. See Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)(“To prove that he engaged in protected activity, the plaintiff need not establish that the conduct he opposed was in fact a violation of Title VII.”). However, Neishlos must demonstrate that he had a “good faith, reasonable belief” that the underlying conduct violated the law. Id.
“While there are no magic words that must be used when complaining about a supervisor, in order to be protected activity the complainant must put the employer on notice that the complainant believes that discrimination is occurring.” Ramos v. The City of New York , 1997 U.S. Dist. Lexis 10538, No. 96 Civ. 3787, 1997 WL 410493, at *3 (S.D.N.Y. Jul 22, 1997). The only indication that Neishlos believed he was the victim of discrimination was that he complained to the OEEO rather than to another internal grievance office, such as the IAB. Neishlos did not complain of discrimination in his letter to Lt. Nolte. To the contrary, the letter only complains of the alleged inaccuracies in his performance evaluation. See 8/3/98 Letter to Lt. Nolte, Ex. C to Goell Dec. at 7-8. Neishlos’ complaint to the OEEO similarly included no claim of religious or ethnic discrimination but was limited to the assertion that Katranakis falsified his performance evaluation. See 8/11/99 Supervisor of Investigations Complaint Evaluation and Option Report, Ex. L to Goell Dec. This resulted in the complaint being promptly referred to IAB as alleged misconduct, rather than discrimination. See id.
Defendants argue that even if a complaint to the OEEO could have put them on notice of ongoing discrimination, Neishlos’s claim of discrimination was not made in good faith. Neishlos’s belief that he was subjected to discrimination must have been “reasonable and characterized by objective good faith.” Sullivan-Weaver v. New York Power Auth., 114 F. Supp. 2d 240, 243 (S.D.N.Y. 2000)(citing Manoharan, 842 F.2d at 593). Neishlos did not complain of discrimination, or for that matter, of anything else, until August 3, 1998, after his termination had already been recommended. Nor did he indicate that his religion or ethnic origin was the discriminatory basis for his poor performance evaluation. Neishlos claims that he did not specifically raise religious and ethnic discrimination with Lt. Nolte and the OEEO because “he was afraid to report it to anyone since he felt that this may jeopardize his employment” and his “main concern at the time was to correct the false information reported on his performance evaluation.” See Pl. 56.1 P 52.
Neishlos was, or should have been, aware that his termination was imminent upon receipt of his performance evaluation on July 31, 1998. Furthermore, he failed to allege any type of discrimination in his complaints to Lt. Nolte and the OEEO. A reasonable juror viewing the evidence in the light most favorable to plaintiff could not find that Neishlos made any complaints of discrimination to Lt. Nolte and the OEEO in good faith. Accordingly, he did not engage in protected activity and his retaliation claim must be dismissed.
2. Inference of Retaliation
Assuming, arguendo, that Neishlos did in fact complain of discrimination, there is no causal connection between Neishlos’s complaints and his subsequent termination. Neishlos argues that the very short time period between his two complaints and his termination gives rise to an inference of retaliation. See Pl. Mem. at 15-16. Defendants rebut this argument by showing that the decision to terminate Neishlos had been made well before either of his complaints. See Def. Mem. at 20
Plaintiff complained of his unfair evaluation on August 3, 1998, in a letter to Lt. Nolte and again on August 6, 1998, to the OEEO. His termination was recommended on August 7, 1998, and he was terminated on August 12, 1998. Temporal proximity can demonstrate causality in retaliation cases. See Decintio v. Westchester County Medical Ctr., 821 F.2d 111, 115 (2d Cir. 1987).
However, the inference of retaliation raised by temporal proximity can be destroyed by other evidence. Defendants show that some steps toward termination had already been taken by July 1998. For example, his performance evaluation specifically recommended termination. This rebuts any presumption that the short time between plaintiff’s complaints and his termination is evidence of a causal link between the two events. “Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance Am., 248 F.3d 87, 95 (2d Cir. 2001), cert. denied, 534 U.S. 951, 151 L. Ed. 2d 263, 122 S. Ct. 348 (2001); Ponniah Das v. Our Lady of Mercy Med. Ctr., 2002 U.S. Dist. Lexis 7771, No. 00 Civ. 2574, 2002 WL 826877, at *12 (S.D.N.Y. Apr. 30, 2002)(“Proximity in time alone will not support a finding . . . that a plaintiff has proved a causal connection between a protected activity and an adverse employment action.”).
The recommendation of termination by Katranakis, Neishlos’s direct supervisor, is a substantial step toward termination. Because this step preceded Neishlos’s complaints, it destroys any inference of retaliation and causation. No reasonable juror could find that retaliation was a motive for Neishlos’s termination. Thus, plaintiff’s claim of retaliation must be dismissed.
VIII. CONCLUSION
Although Neishlos genuinely feels that he was treated badly and terminated unjustly, he has offered no evidence that his treatment was motivated by discriminatory animus or retaliation. Because there are no genuine issues of material fact, defendants’ motion for summary judgment is granted. The Clerk of the Court is directed to close this case.
SO ORDERED:
Shira A. Scheindlin
U.S.D.J.
New York, New York
October 31, 2003
Notes
1 Section 396 of the New York City Charter (“Charter”) clearly indicates that the NYPD is a non-suable entity. “All actions and proceedings for the recovery of penalties . . . shall be brought in the name of the City of New York and not that of any agency, except where otherwise provided by law.” Charter, Ch. 17 § 396; see also Gonzales v. New York City Police Dep’t, 2000 U.S. Dist. Lexis 16959, No. 00 Civ. 7096, 2000 WL 1727714, at *1 n.1 (S.D.N.Y. Nov. 21, 2000); Jeffreys v. City of New York , 2000 U.S. Dist. Lexis 14234, No. 99 Civ. 4602, 2000 WL 1459845, at *3 (S.D.N.Y. Sept. 29, 2000) (organizational subdivisions of the City, such as the NYPD, “lack independent existence and as such cannot be sued”). Accordingly, the case against the NYPD is dismissed.
2 Katranakis is of Greek heritage and Christian faith. Complaint P 12.
3 Plaintiff was a provisional employee at the time of his termination. His status remained provisional despite the expiration of the statutory period for provisional employment. See Dhawan v. Office of Suffolk County Med. Examiner,74 N.Y.2d 842, 545 N.E.2d 872, 546 N.Y.S.2d 558 (2d Dep’t 1989). There is no need to address the remedies available to provisional employees under Title VII because the motion for summary judgment is granted.
4 Because the prima facie case fails for lack of discriminatory animus, it is unnecessary to address whether the harassment was severe and pervasive enough to alter the terms and conditions of employment.
5 In this regard, Neishlos claims that his performance evaluation did not indicate that termination was recommended. See Pl. Mem. at 18. This is directly contradicted by the document itself, where on Item 4, “Recommendation”, “Termination” is typed in the area where the evaluator must specify the nature of the recommendation. See 7/30/98 Performance Evaluation, Ex. C to Goell Dec. at 1.