Crump v. City of New York

2024 NY Slip Op 34255(U)

• Court: New York Supreme Court, New York County
• Decided: November 30, 2024
• Docket: Index No. 155802/2013
• Status: Unpublished

Opinion

Crump v City of New York 2024 NY Slip Op 34255(U) November 30, 2024 Supreme Court, New York County Docket Number: Index No. 155802/2013 Judge: J. Machelle Sweeting Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. J. MACHELLE SWEETING PART 62 Justice ---------------------------------------------------------------------------------X INDEX NO. 155802/2013 CONRAD L. CRUMP, MOTION DATE 6/5/2023 Plaintiff, MOTION SEQ. NO. 001 -v- CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, RAYMOND KELLY, Commissioner of the NYC Police Department, DEPUTY INSPECTOR WILLIAM MCSORLEY, SERGEANT JAMES LEO, LIEUTENANT DECISION + ORDER ON ROBERT GIBBONS, CAPTAIN JONATHAN LEVINE, and MOTION CAPTAIN JAY MCMAHON, all being sued in their individual and professional capacities,

Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 52, 55, 57, 62 were read on this motion to/for JUDGMENT - SUMMARY .

Plaintiff Conrad L. Crump brings this action against defendants the City of New York (“the

City”), the New York City Police Department (the “NYPD”), Raymond Kelly, Commissioner of

the NYC Police Department (“Kelly”), Deputy Inspector William McSorley (“McSorley”),

Sergeant James Leo (“Leo”), Lieutenant Robert Gibbons (“Gibbons”), Captain Jonathan Levine

(“Levine”) and Captain Jay McMahon (“McMahon”) (collectively, “defendants”) for alleged

employment discrimination based on race, color, and national origin, a hostile work environment,

and retaliation in violation of the New York State Human Rights Law (“NYSHRL”) (Executive

Law § 296 et seq.) and the New York City Human Rights Law (“NYCHRL”) (Administrative

Code of the City of New York § 8-107 et seq.). Defendants move, pursuant to CPLR 3212, for

summary judgment dismissing the complaint.

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 1 of 32 Motion No. 001

1 of 32 [* 1] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Factual Background

Plaintiff was born in Antigua and self-identifies as a Black male of West Indian descent

New York State Courts Electronic Filing [“NYSCEF”] Doc No. 26, Rosenfeld affirmation, exhibit

A, ¶ 17; NYSCEF Doc No. 39, Cronin affirmation, exhibit 1, plaintiff tr at 45). Plaintiff held the

rank of police officer in the NYPD from June 30, 1995 until March 21, 1999, when he was

promoted to the rank of detective, third grade (NYSCEF Doc No. 26, ¶¶ 18-19). Prior to his

promotion, plaintiff had worked as an undercover officer in the Narcotics Division (NYSCEF Doc

No. 39 at 45), and he continued to work undercover in that division until 2003, when he became

an investigator (id. at 20). Plaintiff worked in the detective squad at the 32nd Precinct from 2005

until August 2014, when he became a detective specialist at the 7th Precinct (NYSCEF Doc No.

26, ¶ 8; NYSCEF Doc No. 39 at 23-24; NYSCEF Doc No. 30, Rosenfeld affirmation, exhibit E at

27). As a detective specialist, plaintiff worked in uniformed patrol (NYSCEF Doc No. 39 at 29).

Plaintiff has since retired from the NYPD (NYSCEF Doc No. 38, plaintiff mem of law at 8;

NYSCEF Doc No. 43, Cronin affirmation, exhibit 5, Deputy Inspector Conor K. Wynne [Wynne]

tr at 28).

Kelly was the commissioner of the NYPD when the alleged acts occurred (NYSCEF Doc

No. 13, amended answer, ¶ 11). McSorley and Gibbons had been employed by the NYPD as a

deputy inspector and a lieutenant, respectively (id., ¶¶ 12 and 14). Leo is a current NYPD

employee and holds the rank of sergeant (id., ¶ 13). Levine and McMahon are current NYPD

employees, and each holds the rank of captain (id., ¶¶ 15-16). McSorley, Gibbons, Leo, Levine

and McMahon, who are white, supervised plaintiff (NYSCEF Doc No. 26, ¶¶ 12-16).

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 2 of 32 Motion No. 001

2 of 32 [* 2] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

The detective squad at the 32nd Precinct is comprised of the A, B and D teams, the

domestic violence team, and the “BRAM” team (NYSCEF Doc No. 40, Cronin affirmation, exhibit

2, 11/17/2014 hearing tr at 9). “BRAM” stood for Burglary Robbery Apprehension Module (id.).

Plaintiff testified that unlike the regular squad, where detectives “catch … [s]erious, serious cases,”

the BRAM unit investigated burglaries and small crimes (NYSCEF Doc No. 39 at 67). Detectives

begin learning investigative skills in the BRAM unit (id.).

Plaintiff testified that beginning in 2010 until 2013, “when we had Lieutenant Gibbons” as

the commander of the detective squad, he was subjected to discrimination based on race, color and

national origin, a hostile work environment and retaliation (id. at 45 and 68). Plaintiff believed

that he was targeted because he once told Gibbons, “‘I don’t think the people within the 32nd

Precinct, or within the community, is [sic] getting a [sic] fair treatment on investigation [sic] that

goes on here’” (id. at 58). Plaintiff testified that he “speak[s]” his mind and “speak[s] for the

community” which is “[pre]dominantly [B]lack in the 32” (id. at 77-78). The complaint cites

several instances where plaintiff was treated unfairly when compared to his white counterparts.

A. Leave Requests

The complaint alleges that defendants repeatedly denied plaintiff’s requests for time off

but granted requests for time off from white detectives (NYSCEF Doc No. 26, ¶¶ 45-46). Plaintiff

confirmed at his deposition that his requests were often denied (NYSCEF Doc No. 39 at 46).

Plaintiff claimed he was told, “‘Oh, you have too many open cases; you can’t get the day,’” but

white detectives’ requests were routinely granted, even though “we’re [all] getting caseloads” (id.).

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 3 of 32 Motion No. 001

3 of 32 [* 3] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

B. Overtime Pay

The complaint alleges that defendants repeatedly denied plaintiff’s requests for

investigative overtime, whereas white detectives with less seniority were granted overtime, and

when plaintiff did work overtime, he was not paid (NYSCEF Doc No. 26, ¶¶ 35 and 38). The

complaint further alleges that defendants denied plaintiff the opportunity to seek overtime because

he was removed from working “paid detail” and that white detectives in his unit were allowed to

“catch cases,” but he was not (id., ¶¶ 36 and 41-42). Plaintiff testified that “[i]f I make an arrest,

and I put in for overtime, I get paid, and then they reverse the payment back” (NYSCEF Doc No.

39 at 46). Gibbons once told plaintiff that “he would like to take my legs from under me. Not

physically remove my legs, but take my overtime – because I do paid detail” (id. at 60). Plaintiff

stated that “there is no written rule that says you cannot get overtime, or you cannot get a day off,

which was done to me” (id. at 97). His white counterparts, like Detective Gerard Blake (“Blake”),

would receive overtime even though they had a high number of open cases (id. at 49 and 98).

Plaintiff stated that white detectives “get away with it. They put their slips in; it’s not reversed

like mine” (id. at 98).

C. Promotion and Transfer Opportunities

The complaint alleges that, despite his “glowing evaluations” and seniority, defendants

repeatedly passed plaintiff over for promotion to detective, second grade, in favor of white officers

(NYSCEF Doc No. 26, ¶¶ 21-27). The complaint alleges that, in order “to justify promoting white

officers with less seniority and less ability,” defendants “deliberately deflated” plaintiff’s

evaluations and subjected him to interim evaluations and threatened to issue (and did issue)

command disciplines to plaintiff for poor case management (id., ¶¶ 30-34). Plaintiff was demoted

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 4 of 32 Motion No. 001

4 of 32 [* 4] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

to the BRAM unit while none of the white detectives in his unit had ever been demoted (id., ¶¶ 28-

29). Defendants also denied plaintiff’s requests to transfer to the Intel Division and the Internal

Affairs Bureau (IAB) (id., ¶¶ 43-44).

Plaintiff testified that Gibbons informed him in August 2011 that he had been “demoted”

to the BRAM unit (NYSCEF Doc No. 39 at 67-68). Although his title and salary remained the

same, plaintiff believed “it’s like going backwards” because the BRAM unit dealt with less serious

cases (id. at 68-69).

In February 2011, plaintiff interviewed with the Intel Division, but Gibbons refused to sign

a recommendation approving the transfer (id. at 87). Plaintiff testified that he learned for the first

time during that interview that he had received “2.5” on an interim evaluation (id. at 76). After

plaintiff delivered copies of all his evaluations to the Intel Division, he never heard from that

division again (id. at 76-77). In March 2013, plaintiff completed an applicant questionnaire for

IAB (NYSCEF Doc No. 44, Cronin affirmation, exhibit 6 at 2). Plaintiff testified that IAB did not

accept him based on his evaluations (NYSCEF Doc No. 39 at 77).

Plaintiff testified that when he asked Gibbons to explain the factors considered to obtain a

promotion, Gibbons replied, “‘[i]t depends on your case load, your appearance, your sick time,

and how you work with people within the community. And your evaluations” (id. at 46). Plaintiff

testified that he and 11 Black detectives at the 32nd Precinct had been bypassed for promotion to

detective, second grade, in favor of four white detectives (id. at 91-92). Plaintiff believed the

Black detectives were all qualified (id. at 93). When asked whether the four white detectives were

not qualified, plaintiff answered, “I can’t speak on their behalf; I can speak for myself and the

other colleagues that were passed over” (id.). Unlike the Black detectives, some of whom had

worked undercover in the Narcotics Division, the four white detectives were all precinct officers

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 5 of 32 Motion No. 001

5 of 32 [* 5] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

who had never worked undercover (id. at 94-95). Plaintiff believed that working as an undercover

entailed taking risks, which made that candidate more qualified (id. at 97), whereas “a lot of white

counterparts, they don’t take risks” (id. at 94). Plaintiff acknowledged it was not a written rule

that taking risks as an undercover made for a better applicant and that no one had ever told him

that prior experience as an undercover made for a better applicant (id. at 97- 98).

D. Plaintiff’s Evaluations

Annual evaluations reviewed an employee’s performance in numerous categories like

investigative skills, arrests and community interaction (id. at 22). A “rater” assesses and grades

the employee on a zero to five scale, with five being the highest score (NYSCEF Doc No. 30,

Rosenfeld affirmation, exhibit E; NYSCEF Doc No. 43 at 33-34). A “reviewer” may add

additional comments (NYSCEF Doc No. 30). Plaintiff received a “4” overall on each of his

evaluations between 2004 and 2009 (NYSCEF Doc No. 31, Rosenfeld affirmation, exhibit F). In

addition to annual evaluations, a supervisor may complete an interim evaluation, which plaintiff

viewed negatively because it could result in an employee’s placement on “performance

monitoring” if the overall rating fell below a “2.5” (NYSCEF Doc No. 39 at 74).

Gibbons completed plaintiff’s annual evaluation for the 2010-2011 period (NYSCEF Doc

No. 30 at 17). Plaintiff received a “2” in case management, a “3” in several other categories and

a “3.5” overall (id. at 17). Gibbons noted that plaintiff’s arrest activity had dropped significantly

compared to his prior arrest activity and had fallen “well below the detective squad average” (id.

at 18). Gibbons also detailed plaintiff’s difficulties managing cases, writing that plaintiff “takes

detailed notes, and records his notes on paper/pad/back of 61, then lags with regard to actually

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 6 of 32 Motion No. 001

6 of 32 [* 6] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

typing and documenting the … information on the DD5 for the ECMS case folder” (id.). Leo, the

designated reviewer, concurred (id.).

Gibbons completed an interim evaluation covering July 12, 2011 through October 19, 2011

(id. at 14). Plaintiff received a “3” or less in every category but two, including a “0” in report

writing and a “1” in both case enhancement and organization (id.). His arrest activity increased,

but “[t]he issue with his arrests is the required paperwork, and the timeliness of a closing – he just

doesn’t adhere to the proper procedures” (id. at 15). Other comments included an “inability to

enhance an investigation” by following up with complaints and taking other investigative steps,

even though he was “closely supervised and instructed”; poor organizational skills; a lack of

preparedness to discuss and explain cases; “nonexistent” case management, which did “not

conform to any of the bureau guidelines and specifications”; and a need for supervision and

instruction, which often was not followed (id.). Gibbons wrote:

“[plaintiff] was assigned to the BRAM in August 2011, to give him a better sense of systematic, step by step investigatory work. Since his assignment, his overall ability, interest level, case work has diminished greatly. He is resistant to supervisory instruction in the majority of squad related issues (IE: case work, documentation, victim/witness interviews, days off, court related procedures and so forth.) [Plaintiff’s] answer to his case work is, ‘I do my work, I just don’t document it’. This interim evaluation is being completed because [plaintiff’s] performance is unacceptable in the detective squad. The liabilities in his cases bring his integrity into question” (id. at 15).

Many of plaintiff’s cases had also been reassigned to other detectives “in order to maintain

the integrity of said case – the victim cannot suffer because he will not conduct a proper

investigation” (id.). Gibbons observed that plaintiff “displays a complete resistance to many of

the changes that have taken place not only with the detective bureau, but with the daily operations

of the detective squad” (id.). He recommended plaintiff’s reassignment “to a position … where

he maintains no investigative responsibility” (id. at 15). Levine, the reviewer, agreed. Levine

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 7 of 32 Motion No. 001

7 of 32 [* 7] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

added that he had spoken to plaintiff about his case management and lack of organization and

recommended reassigning plaintiff to a position requiring less documentation of his work (id.).

In an interim evaluation covering May 16, 2012 to November 7, 2012, Sergeant Matteo

Brattesani (“Brattesani”) awarded plaintiff a “2.5” overall (id. at 19). The evaluation largely

repeated the concerns discussed in the previous interim evaluation. Brattesani wrote that

“[plaintiff] has been assigned to the Detective Squad for approximately 7 years and though he has

shown little improvement, he doesn’t always document basic investigative steps in his assigned

cases”; plaintiff’s cases had been “reviewed and continue to show an inability to enhance an

investigation” and failed to follow up with complainants; plaintiff has improved little with respect

to documenting his cases in the ECMS system; and plaintiff demonstrates “little organizational

skills which is evident in his poor case management” (id. at 20). Brattesani concluded that plaintiff

was more suited for an assignment with less investigative responsibility (id.). McMahon, the

reviewer, concurred, and wrote separately of plaintiff’s failure to document his cases in the ECMS

system as instructed (id. at 21).

Brattesani gave plaintiff a “4” overall in an annual evaluation for the 2011-2012 period (id.

at 22). Brattesani noted that plaintiff had “shown great strides in case management” (id. at 23).

Gibbons, the reviewer, concurred with Brattesani’s assessment (id.).

For the 2012-2013 period, Leo gave plaintiff a “2.5” overall, with a “1” in case

management, report writing, professional responsibility, commitment, adaptability and

organization (id. at 24). The evaluation repeated earlier concerns about plaintiff’s inability to

properly manage cases and his failure to update cases and write reports in the ECMS system (id.

at 25). Plaintiff also received two command disciplines and was removed from the “catching

order” due to his failure to properly document his investigative steps (id.). The lack of professional

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 8 of 32 Motion No. 001

8 of 32 [* 8] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

responsibility, initiative, commitment, drive, and organization, and a failure to enhance

investigations were “proven to be a liability in [plaintiff’s] effectiveness to conduct

investigations,” and led Leo to conclude that plaintiff should be “reassigned to a non-investigative

assignment with minimal responsibility” (id.). McMahon, the reviewer, agreed, and commented

that plaintiff had been counseled repeatedly on documenting his work (id. at 26). McMahon added

that plaintiff’s poor performance had impacted the other detectives in the squad, who were “forced

… to take on heavier caseloads” (id.).

E. Other Incidents of Alleged Discrimination

Plaintiff testified that between 2010 and 2013, Detectives Blake, Jimmy Quilty (“Quilty”),

Danny Hull (“Hull”) and Chris Kiln (“Kiln”), who were white, would “[s]ometimes … make fun

of my accent. Sometimes they like come with this, ‘God saved the queen’” (NYSCEF Doc No.

39 at 99-100 and 102). Plaintiff stated that “[t]hey do it as in a joking manner, but you know, how

many times is it going to be a joke when you keep repeating the same thing over and over” (id. at

100). Regarding Quilty, plaintiff testified that “[t]his is something that goes on. I can’t specifically

say like, he did it yesterday, or if he did it in 2011, but it’s just an ongoing thing …. You know,

sometimes your accent, or, you know, ‘[o]h, so what do you guys hunt over there? Do you guys

use guns, or do you guys use spears’” (id.). In addition, Kiln once told plaintiff, “[l]isten, you

know what? You know, you need to control your Jamaican boy from committing so much crime

here’” even though plaintiff is not Jamaican (id. at 101). Plaintiff could not state how often they

joked about his accent, testifying that “I guess it depends on their moods, or whatever the day may

be” (id. at 101-102).

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 9 of 32 Motion No. 001

9 of 32 [* 9] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Plaintiff testified that Gibbons once called to berate him for leaving work without closing

10 cases as he had been instructed (id. at 111). Plaintiff, who was traveling in a vehicle with his

wife at the time, told Gibbons that he should not speak to him in that manner (id. at 112). Plaintiff

was not disciplined for this incident (id.).

Plaintiff testified that Detective Aman Conners (“Conners”), who is white, received

favorable treatment because when Conners failed to report for work, Gibbons would direct a

detective to “[p]ut in a 28 for Conners”1 (id. at 47-48). But, when plaintiff took “legitimate

vacation,” he was suspended (id. at 48). Plaintiff also testified that Blake, who carried a heavy

caseload, would submit overtime slips and be paid (id. at 49). Plaintiff acknowledged that there

was no written rule that time off or overtime requests would be denied because that detective had

a certain number of open cases (id. at 52).

F. Plaintiff’s Complaints

Plaintiff testified that on some unknown date, he spoke to Sergeant Sotto in the NYPD’s

OEEO office (NYSCEF Doc No. 39 at 105). Plaintiff testified as follows:

“I told him that I don’t think I was being treated fairly in the 32 squad; I said that I spoke to them about getting promoted. And then I said, ‘They’re giving me a hard time with me getting days office, and they’re giving me a hard time about me wanting to take off. And they’re complaining about my caseload and my case management. I work overtime hours. I put my slip in, and then they reverse it, and take money back out of my check” (id. at 105-106).

Plaintiff also mentioned his evaluations (id. at 108-109). Sergeant Sotto responded, “‘[t]his is not

an OEEO problem; this sounds more like a union issue,’” and took no further action (id. at 106).

Plaintiff testified that he tried reaching out to his superiors, as well (id. at 109). He told

Levine, “‘Cap, you know, there’s a problem in the 32. I’m having a problem with the lieutenant;

1 “Aman Conners” is also spelled “Eamonn Conners” (NYSCEF Doc No. 48, Cronin affirmation, exhibit 10 at 13). A UF-28 is a request for leave form that must be approved by a supervisor (NYSCEF Doc No. 40 at 15). 155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 10 of 32 Motion No. 001

10 of 32 [* 10] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

I’m having a problem with the squad’” (id.). Levine later signed one of the interim evaluations

(id. at 110). Plaintiff contacted the chief of the Detective Bureau, Chief Phil T. Pulaski (Pulaski)

(id. at 113; NYSCEF Doc No. 32, Rosenfeld affirmation, exhibit G at 3). Pulaski scheduled two

meetings with plaintiff, but they never took place (NYSCEF Doc No. 39 at 114-115). Plaintiff

also “notified Internal Affairs and got log numbers” and “put a few log numbers on Sergeant Leo”

(NYSCEF Doc No. 41, Cronin affirmation, exhibit 3, 7/13/2015 hearing tr at 17-18). Plaintiff

“never called or followed up” with IAB (id. at 18).

G. Plaintiff’s Suspension and Disciplinary Charges

On June 25, 2013, Assistant Chief Robert K. Boyce (“Boyce”), Commanding Officer,

Detective Borough Manhattan, requested a disciplinary charge and specification for plaintiff, who

had been issued supervisors complaint Nos. 13/2013 and 51/2013, for failing to timely document

his investigative steps (NYSCEF Doc No. 32 at 3). Boyce made this request because plaintiff had

declined to accept any discipline without a statutory hearing (id.). Pulaski endorsed the charge

and specification on October 29, 2013 (id. at 1-2).

On August 5, 2013, McMahon suspended plaintiff for being absent without leave

(“AWOL”) and for failing to report for duty from July 30 to August 2, 2013, despite two

supervisors ordering him to report (NYSCEF Doc No. 33, Rosenfeld affirmation, exhibit H). The

four charges and specifications dated August 6, 2013 allege that plaintiff failed to appear for

scheduled duty from July 30 to August 2, 2013; failed to comply with an order from Sergeant

Michael Seiling (“Seiling”) to report for duty on August 1, 2013; failed to comply with an order

from McMahon to report for duty on August 2, 2013; and “engaged in conduct prejudicial to the

good order, efficiency or discipline of the Department” by submitting a UF-28 that stated the week

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 11 of 32 Motion No. 001

11 of 32 [* 11] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

of July 30 was his annual scheduled vacation pick when it was not (NYSCEF Doc No. 32 at 4-5).

Boyce endorsed the charges and specifications on August 9, 2013 (id. at 5).

A hearing took place before David S. Weisel (“Weisel”), Assistant Deputy Commissioner

– Trials, on November 17, 2014 and July 13, 2015 (NYSCEF Doc No. 28, Rosenfeld affirmation,

exhibit C at 1). Plaintiff was represented by counsel (id. at 2). Plaintiff, Leo, Seiling, and

McMahon all testified (NYSCEF Doc No. 41 at 2; NYSCEF Doc No. 40 at 7, 58 and 74). In a 14-

page memorandum, Weisel concluded that plaintiff was guilty on all charges and specifications

(NYSCEF Doc No. 28 at 1). Weisel noted that plaintiff admitted to failing to timely document his

investigative steps in the ECMS system, that his supervisors had spoken to him about timely

documenting his work, and that he had received two command disciplines for failing to do so (id.

at 5). Weisel concluded that plaintiff failed to appear for four scheduled tours of duty between

July 30 and August 2, 2013, despite Leo having told plaintiff on July 20 that his UF-28 for leave

that week had been denied (id. at 7-8). Plaintiff admitted at trial that he did not follow Seiling’s

order to report to work on August 1 or McMahon’s order to report to work on August 2 (id. at 10).

Weisel also noted that plaintiff was aware that members had to seek their commanding officer’s

approval to change an annual vacation pick, and that plaintiff had submitted a UF-28 for the week

of July 30 indicating that it was his annual vacation pick without first speaking to his commanding

officer (id. at 11). Weisel recommended that plaintiff be dismissed from the NYPD, with the

dismissal held in abeyance for one year, and that plaintiff forfeit the 30 days he had served on

suspension (id. at 13). The NYPD commissioner at the time approved the recommended penalties

(NYSCEF Doc No. 34, Rosenfeld affirmation, exhibit I).

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 12 of 32 Motion No. 001

12 of 32 [* 12] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

H. This Action

Plaintiff commenced this action by filing a summons and complaint on June 25, 20132

(NYSCEF Doc No. 1). The complaint pleads causes of action for race, color and national origin

discrimination, a hostile work environment, and retaliation under the NYSHRL (first through fifth)

and NYCHRL (sixth through tenth). Plaintiff seeks compensatory and punitive damages, statutory

remedies, both legal and equitable, plus costs and interest (NYSCEF Doc No. 26 at 21).

Defendants now move for summary judgment dismissing the complaint.

The Parties’ Contentions

Defendants posit that the claims for race, color and national origin discrimination fail

because plaintiff’s unsatisfactory work performance constitutes a legitimate, nondiscriminatory

reason for their actions, and that plaintiff cannot demonstrate that their proffered reason was a

pretext for discrimination or that they were motivated by an invidious discriminatory intent.

Defendants contend that the hostile work environment claims fail because the alleged incidents

amount to nothing more than petty slights and trivial inconveniences or isolated, sporadic

incidents. Defendants also maintain that the retaliation claims must be dismissed because plaintiff

never specifically complained about discrimination, and did not, therefore, engage in protected

activity. Even if plaintiff had engaged in a protected activity, defendants argue that the allegedly

poor treatment continued even after plaintiff filed an OEEO complaint, and that the filing of the

summons and complaint in this action on the same day the first request for a charge and

specification was made shows only that it was a continuation of defendants’ course of conduct.

2 Plaintiff claims to have commenced this action on June 26, 2013 (NYSCEF Doc No. 38 at 26). 155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 13 of 32 Motion No. 001

13 of 32 [* 13] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Plaintiff counters that he can establish each element of his prima facie case for

discrimination because defendants’ selective enforcement of discipline constitutes an adverse

employment action that occurred under circumstances giving rise to an inference of discrimination

and establishes that he was treated differently than his white counterparts. On the hostile work

environment claims plaintiff, citing Floyd v City of New York (959 F Supp 2d 540 [SD NY 2013]),

counters that the nexus between “proven systemic racism in how the NYPD treated the [B]lack

and Hispanic community at the pertinent time” and his complaints is sufficient to sustain the hostile

work environment claims, and “urges the court not to burden plaintiff with proof that such racism

existed in the 32nd precinct” (NYSCEF Doc No. 38 at 11-12). As to the retaliation claims, plaintiff

alleges that after he spoke up for the community, he was subjected to excessive scrutiny,

performance monitoring, and interim evaluations. The most egregious acts, however, took place

after he filed complaints with the OEEO office and IAB and after he filed the present lawsuit,

when defendants drafted the five charges and specifications against him.3

3 Plaintiff never amended his complaint to plead any allegations about these disciplinary actions (see Caputo v IESI NY Corp., 228 AD3d 480, 482 [1st Dept 2024] [“Because plaintiff never amended his complaint to allege that defendants’ counterclaims and third-party claims constituted retaliation for his complaint in this action, he may not raise those allegations in opposition to summary judgment”]). Nevertheless, defendants addressed the charges and specifications and the disposition made after trial on their motion. 155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 14 of 32 Motion No. 001

14 of 32 [* 14] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Discussion

It is well settled that a party moving for summary judgment “must make a prima facie

showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320,

324 [1986]). The “facts must be viewed in the light most favorable to the non-moving party”

(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation

omitted]). If the moving party has met this prima facie burden, the non-moving party must furnish

evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 NY2d at 324).

As a preliminary matter, plaintiff’s NYSHRL claims accrued before the enactment of

Executive Law § 300 (see L 2019, ch 160, § 6). Thus, this court reviews the NYSHRL claims

under the pre-amendment standard (see Kwong v City of New York, 204 AD3d 442, 444 n 1 [1st

Dept 2022], lv dismissed 38 NY3d 1174 [2022]; Golston-Green v City of New York, 184 AD3d

24, 41 n 3 [2d Dept 2020]).

A. Race, Color and National Origin Discrimination

The first, second, third, sixth, seventh and eighth causes action plead claims for race, color

and national origin discrimination under the NYSHRL or the NYCHRL. The NYSHRL and the

NYCHRL proscribe employment discrimination based on race, color or national origin (Executive

Law § 296 [1] [a]; Administrative Code § 8-107 [1] [a] [3]). NYSHRL claims are analyzed under

the burden shifting framework articulated in McDonnell Douglas Corp. v Green (411 US 792

[1973]) (Melman v Montefiore Med. Ctr., 98 AD3d 107, 112 [1st Dept 2012]). Under the

McDonnell Douglas approach, the plaintiff bears the initial burden of establishing a prima facie

case of discrimination by demonstrating that the plaintiff is a member of a protected class, was

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 15 of 32 Motion No. 001

15 of 32 [* 15] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

qualified for the position, and suffered an adverse employment under circumstances that give rise

to an inference of discrimination (Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 73-

74 [1st Dept 2017]). If the plaintiff meets this minimal burden, the defendant must “come forward

with evidence of ‘legitimate, independent, and nondiscriminatory reasons to support its

employment decision’” (id. [citation omitted]). If the defendant carries its burden, then the

plaintiff must show that the proffered explanation is “a false pretext masking discriminatory intent”

(id. at 76; see also DeFreitas v Bronx Lebanon Hosp. Ctr., 168 AD3d 541, 541 [1st Dept 2019]

[the stated reason must be “false or unworthy of belief and that more likely than not [that

discrimination] was the real reason”]). Thus, a defendant moving for summary judgment on an

NYSHRL claim “‘must demonstrate either plaintiff’s failure to establish every element of

intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [its]

challenged actions, the absence of a material issue of fact as to whether [its] explanations were

pretextual’” (Shapiro v State of New York, 217 AD3d 700, 701 [2d Dept 2023] [citation omitted]).

NYCHRL claims are evaluated under both the McDonnell Douglas and mixed-motive

frameworks (Melman, 98 AD3d at 113). “Under the ‘mixed-motive’ framework, ‘the question on

summary judgment is whether there exist triable issues of fact that discrimination was one of the

motivating factors for the defendant’s conduct’” (Hudson v Merrill Lynch & Co., Inc., 138 AD3d

511, 514 [1st Dept 2016], lv denied 28 NY3d 902 [2016], quoting Williams v New York City Hous.

Auth., 61 AD3d 62, 78 n 27 [1st Dept 2009]). Thus, a defendant moving for summary judgment

on an NYCHRL claim must demonstrate that “no jury could find defendant liable under any of the

evidentiary routes: under the McDonnell Douglas test, or as one of a number of mixed motives,

by direct or circumstantial evidence” (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 41 [1st Dept

2011], lv denied 18 NY3d 811 [2012]). To defeat the motion, the plaintiff must furnish evidence

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 16 of 32 Motion No. 001

16 of 32 [* 16] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

showing that the defendant’s reason was false or that the defendant was motivated, at least in part,

by discrimination (Hamburg, 155 AD3d at 73; see also Bond v New York Health & Hosps. Corp.,

215 AD3d 469, 470 [1st Dept 2023] [the evidence must show that the plaintiff was treated less

well than other employees because of a protected characteristic]; Bennett, 92 AD3d at 45 [the

plaintiff must offer “some evidence that at least one of the reasons proffered by defendant is false,

misleading, or incomplete”]). “A plaintiff’s ‘feelings and perceptions of being discriminated

against are not evidence of discrimination’” (Basso v Earthlink, Inc., 157 AD3d 428, 430 [1st Dept

2018] [citation omitted]).

Applying these principles here, defendants have demonstrated that there is no evidentiary

route under which plaintiff can prevail on any of his discrimination claims (see McIntosh v

Department of Educ. of the City of N.Y., 202 AD3d 481, 482 [1st Dept 2022]). To begin,

defendants have established that plaintiff’s transfer to the BRAM unit does not constitute an

adverse action under the NYSHRL. “An adverse employment action requires a materially adverse

change in the terms and conditions of employment” (Messinger v Girl Scouts of U.S.A., 16 AD3d

314, 314-315 [1st Dept 2005]). Plaintiff retained his title and salary and his duties remained the

same in this lateral transfer (see Ragoo v New York City Taxi & Limousine Commn., 132 AD3d

562, 562 [1st Dept 2015]; Silvis v City of New York, 95 AD3d 665, 665 [1st Dept 2012], lv denied

20 NY3d 861 [2013]). Thus, “[p]laintiff’s perception that the transfer was a demotion fails to raise

an issue of fact” (Cubelo v City of New York, 168 AD3d 637, 638 [1st Dept 2019]).

Defendants have also shown that plaintiff’s subjective belief that he was more qualified

than his white counterparts for a promotion does not raise an inference of discrimination (see Chin

v New York City Hous. Auth., 2011 NY Slip Op 31900[U], *18-19 [Sup Ct, NY County 2011],

affd 106 AD3d 443 [1st Dept 2013], lv denied 22 NY3d 861 [2014] [granting summary judgment

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 17 of 32 Motion No. 001

17 of 32 [* 17] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

where the plaintiff was unaware of the education or qualifications of the person who received a

promotion]; Richetts v Ashcroft, 2003 WL 1212618, *7, 2003 US Dist LEXIS 3878, *24 [SD NY,

Mar. 7, 2003, No. 00 Civ. 1557 (JGK)] [“the plaintiff’s conclusory allegations of discrimination

and her own subjective evaluations that she was better qualified than her coworkers are insufficient

to demonstrate discrimination”]). Plaintiff testified that he could not “speak” to whether the white

detectives were qualified (NYSCEF Doc No. 39 at 93). The only qualification plaintiff could

discern that the four white detectives did not possess was prior experience working undercover.

However, plaintiff admitted that it was not a written rule nor was he ever told that prior experience

as an undercover made for a better applicant (id. at 97). Plaintiff’s answers to defendants’

interrogatories, which are not sworn (CPLR 3133 [b]), establishes only that white detectives with

less seniority were promoted (NYSCEF Doc No. 48, Cronin affirmation, exhibit 10, ¶¶ 9-12). At

his deposition, though, plaintiff did not identify seniority as a dispositive factor when deciding

whether an applicant was qualified for a promotion.

In contrast to the NYSHRL, the NYCHRL does not require proof of a material adverse

change to a plaintiff’s employment. Instead, the action need only have disadvantaged the plaintiff

(Harrington v City of New York, 157 AD3d 582, 585 [1st Dept 2018]). Even assuming the lateral

transfer to the BRAM unit disadvantaged him, plaintiff’s unsatisfactory work performance

constitutes a legitimate, nondiscriminatory reason for his reassignment to that unit, for the denial

of his requests for leave, overtime, and transfers, and for a lack of promotion (see Johnson v

IAC/InterActiveCorp., 179 AD3d 551, 552-553 [1st Dept 2020], lv denied 35 NY3d 912 [2020]

[dissatisfaction with the plaintiff’s work performance and her failure to improve were valid reasons

for her termination]; Hudson, 138 AD3d at 515-516 [poor work performance a legitimate,

nondiscriminatory reason]). Plaintiff earned positive ratings on each evaluation he received before

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 18 of 32 Motion No. 001

18 of 32 [* 18] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

the alleged discrimination began in 2010. Those evaluations, though, detailed specific deficiencies

with his work, notably in the areas of case management and organization (NYSCEF Doc No. 30

at 7, 9, 11 and 13). Plaintiff’s performance began to deteriorate in 2010-2011, particularly in the

areas of case management and documentation (id. at 18), a criticism repeated in later evaluations.

Defendants have also shown that plaintiff cannot demonstrate they were motivated, even

in part, by an improper discriminatory animus. An improper discriminatory motive may be

inferred when there is a nexus between a defendant’s discriminatory statements or references to

the plaintiff’s protected class and the defendant’s actions (Godbolt v Verizon N.Y., Inc., 115 AD3d

493, 495 [1st Dept 2014], lv denied 24 NY3d 901 [2014], quoting Schreiber v Worldco, LLC, 324

F Supp 2d 512, 518 [SD NY 2004]). In Chiara v Town of New Castle (126 AD3d 111, 124 [2d

Dept 2015], lv dismissed 26 NY3d 945 [2015]), the Court explained:

“[i]n determining whether a comment is probative of discrimination, the following factors are considered: (1) whether the comment was made by a decisionmaker, a supervisor, or a low-level coworker, (2) whether the remark was made close in time to the adverse employment decision, (3) whether a reasonable juror could view the remark as discriminatory, and (4) the context of the remark – that is, whether the remark related to the decision-making process” (id.).

Plaintiff identified four white detectives who allegedly made disparaging remarks about

his accent. These detectives, though, never supervised plaintiff nor did he identify them as decision

makers. Critically, the record does not reflect that plaintiff ever informed defendants about these

remarks. Moreover, there is no evidence that any of the remarks were made close in time to the

actions plaintiff claims disadvantaged him (see Breitstein v Michael C. Fina Co., 156 AD3d 536,

537 [1st Dept 2017]). Accordingly, defendants have demonstrated their entitlement to summary

judgment.

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 19 of 32 Motion No. 001

19 of 32 [* 19] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Plaintiff, in response, fails to put forward any evidence demonstrating that defendants’

proffered reason was pretextual or that discrimination was a motivating factor (see McIntosh, 202

AD3d at 482; Matias v New York & Presbyt. Hosp., 137 AD3d 649, 650 [1st Dept 2016]).

Plaintiff argues that defendants’ unjust criticism of his work constitutes pretext. Plaintiff

contends that he received positive evaluations until 2010, when Gibbons began supervising him.

The fact that plaintiff had previously received positive evaluations, by itself, though, is insufficient

to raise a triable issue (see Kwong, 204 AD3d at 444). Additionally, Gibbons, who was first

assigned to the 32nd Precinct on March 21, 2007, rated plaintiff favorably on his 2007-2008 and

2008-2009 annual evaluations (NYSCEF Doc No. 30 at 7 and 9), thereby undermining any

assertion that Gibbons mistreated plaintiff because of his race, color or national origin (see Weir v

Montefiore Med. Ctr., 208 AD3d 1122, 1123 [1st Dept 2022], lv denied 39 NY3d 911 [2023]).

Plaintiff relies on the positive evaluations he received while assigned to the 7th Precinct

and a December 2016 recommendation from Inspector Steven Hellman (“Hellman”), then a

captain and the commanding officer of the 7th Precinct, nominating plaintiff for a discretionary

promotion to detective, third grade (NYSCEF Doc No. 46, Cronin affirmation, exhibit 8). Such

proof, however, is inadequate to show that the criticism of plaintiff’s performance as a detective

in the 32nd Precinct was false, misleading or incomplete (see Ahmed v 2 W. 46th St. Mgt., LLC,

210 AD3d 485, 485-486 [1st Dept 2022]). Hellman and Wynne, plaintiff’s supervisors at the 7th

Precinct, both testified that, although they worked in patrol at the 32nd Precinct during plaintiff’s

time there, they were never in a position to evaluate his performance as part of the detective squad

at that precinct (NYSCEF Doc No. 42, Cronin affirmation, exhibit 4, Hellman tr at 14, 16, 19-20,

and 68-69; NYSCEF Doc No. 43 at 21 and 24). Consequently, plaintiff’s more recent, positive

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 20 of 32 Motion No. 001

20 of 32 [* 20] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

evaluations fail to raise a triable issue of fact as to whether defendants’ reason was pretextual (see

Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 204 [1st Dept 2015]).

Furthermore, “‘an employee’s general disagreement with a supervisor’s evaluation of the

employee’s job performance, by itself, does not create an inference of discrimination or constitute

proof of pretext’” (Cardwell v Davis Polk & Wardwell LLP, 2023 WL 2049800, *21, 2023 US

Dist LEXIS 26907, *66-67 [SD NY, Feb. 16, 2023, No. 1:19-cv-10256-GHW] [citation omitted]).

On this point, plaintiff does not dispute that he received two command disciplines for poor case

management (NYSCEF Doc No. 39 at 70) or that he was found guilty after trial of failing to timely

perform his assignments (NYSCEF Doc No. 34 at 1). Plaintiff has not challenged the disposition

of that charge, nor has he disputed defendants’ proof that they repeatedly warned him of his

deficient work performance (see Cadet-Legros, 135 AD3d at 203-204).

Plaintiff has also failed to tender any evidence of an improper discriminatory motive (see

Fruchtman v City of New York, 129 AD3d 500, 501 [1st Dept 2015]). Plaintiff argues that his

supervisors were present when Quilty, Blake, Hull and Kiln made derogatory slurs about his accent

(NYSCEF Doc No. 38 at 4), but he has not presented any admissible evidence substantiating this

assertion, as a memorandum of law does not constitute admissible evidence (see Benedetto v Hyatt

Corp., 203 AD3d 505, 506 [1st Dept 2022][“[a]s with any summary judgment motion, the

evidence submitted … in opposition must be tendered in admissible form”]). As explained above,

plaintiff failed to identify any comments, statements or remarks made by a supervisor or

decisionmaker that either directly or indirectly referenced his race, color or national origin (see

Etienne v MTA N.Y. City Tr. Auth., 223 AD3d 612, 613 [1st Dept 2024]). Plaintiff complains that

Gibbons once threatened to “take [his] legs” (NYSCEF Doc No. 39 at 60), but this remark is

facially neutral. Not only are stray, isolated remarks, without more, insufficient evidence of

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 21 of 32 Motion No. 001

21 of 32 [* 21] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

discrimination (see Breitstein, 156 AD3d at 537; Fruchtman, 129 AD3d at 501), but where, as

here, “plaintiff’s sole evidence of discriminatory animus turns on facially neutral remarks, those

neutral remarks are insufficient to support a claim of discriminatory motivation” (Trower v Mount

Sinai Hosp., 2018 WL 4283724, *6, 2018 US Dist LEXIS 152341, *17 [SD NY, Sept. 6, 2018,

No. 16-cv-4322 (PKC)]).

Plaintiff’s claim of disparate treatment, likewise, fails in the absence of any evidence

attributing such treatment to his race, color or national origin. “Disparate treatment is the treatment

of persons in a manner less favorable than others because of their [protected characteristic]”

(Forrest v Jewish Guild for the Blind, 3 NY3d 295, 322 [2004] [Smith, J., concurring]). “A

showing that similarly situated employees belonging to a different … group received more

favorable treatment can … serve as evidence that the employer’s proffered legitimate, non-

discriminatory reason for the adverse job action was a pretext for racial discrimination” (Graham

v Long Island R.R., 230 F3d 34, 43 [2d Cir 2000]). However, “mere disparate treatment, without

a showing that the disparity was based on a protected characteristic, does not amount to

discrimination” (Abe v New York Univ., 169 AD3d 445, 447 [1st Dept 2019], lv dismissed 34

NY3d 1089 [2020]). Here, plaintiff has not furnished any evidence linking his treatment to a

hostility or bias towards his race, color or national origin (see Averbeck v Culinary Inst. of Am.,

180 AD3d 862, 863 [2d Dept 2020]; Short v Deutsche Bank Sec., Inc., 79 AD3d 503, 505 [1st

Dept 2010]). Plaintiff alleges only that his white counterparts received favorable treatment. This

is insufficient, particularly on a motion for summary judgment, to establish that this disparity was

due to his race, color or national origin (Short, 79 AD3d at 505). For instance, plaintiff argues that

he was penalized for failing to report to work, but when Conners was AWOL, Gibbons directed

another detective to submit a “28” for him. Plaintiff, however, ignores the fact that when he failed

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 22 of 32 Motion No. 001

22 of 32 [* 22] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

to report to work on July 20, 2013, Leo submitted a UF-28 for him (NYSCEF Doc No. 40 at 13-

14 and 27). As such, plaintiff cannot be heard to complain when he benefited from the exact

conduct he now alleges was discriminatory. Moreover, plaintiff was found guilty after trial for

submitting a UF-28 stating that the week of July 30, 2013 was his annual vacation pick when it

was not (NYSCEF Doc No. 34 at 3). Plaintiff has not established that Conners or any white

detective engaged in the same type of conduct (see Averbeck, 180 AD3d at 863 [no showing that

plaintiff and his colleagues were similarly situated]).

Restricting plaintiff from seeking overtime can constitute an adverse employment action

(Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1001 [2d Dept 2021]), and an

employee on modified assignment, like plaintiff, who was placed on performance monitoring after

his suspension, is not permitted to work paid detail (NYSCEF Doc No. 39 at 124; NYSCEF Doc

No. 43 at 50). But, plaintiff has presented no evidence demonstrating that his removal from paid

detail or the denials of his requests for overtime were predicated on his race, color or national

origin (see Bilitch, 194 AD3d at 1002).

In sum, plaintiff has failed to present any evidence showing that he was treated less well

than other employees because of his race, color or national origin, that defendants were motivated

by an improper discriminatory animus based on race, color or national origin, or that defendants

took plaintiff’s race, color or national origin into account in their decision-making process (see

Reichman v City of New York, 179 AD3d 1115, 1118 [2d Dept 2020], lv denied 36 NY3d 904

[2021]; Cubelo, 168 AD3d at 637; Matias, 137 AD3d at 650). The first, second, third, sixth,

seventh and eighth causes of action are dismissed.

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 23 of 32 Motion No. 001

23 of 32 [* 23] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

B. Hostile Work Environment

The fifth and tenth causes of action plead claims for a hostile work environment under the

NYSHRL and NYCHRL, respectively. “A plaintiff claiming a hostile work environment animated

by discrimination in violation of the NYSHRL must show that the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

conditions of the plaintiff's employment and create an abusive working environment” (Bilitch, 194

AD3d at 1003). The court must look at the “‘the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance’” (Forrest, 3 NY3d at

310-311 [citation omitted]). The conduct must be such that it creates both a subjectively and

objectively hostile environment (id.). The conduct underlying a hostile work environment claim

under the NYCHRL need not meet the severe and pervasive standard. Rather, the plaintiff need

only show that he or she was treated less well than other employees because of the plaintiff’s

relevant characteristic (Pitter-Green v NYU Langone Med. Ctr., 223 AD3d 576, 579 [1st Dept

2024]). That said, conduct amounting to “no more than petty slights and trivial inconveniences”

cannot support a hostile work environment claim (Williams, 61 AD3d at 80).

Defendants have demonstrated that the conduct at issue was not so severe and pervasive so

as to permeate the workplace with discrimination or alter the conditions of plaintiff’s employment

(see Reichman, 179 AD3d at 1118; Chin v New York City Hous. Auth., 106 AD3d 443, 444-445

[1st Dept 2013], lv denied 22 NY3d 861 [2014]; Silvis, 95 AD3d at 665). A hostile work

environment claim must be grounded in repeated conduct (Blackman v Metropolitan Tr. Auth.,

206 AD3d 602, 605 [2d Dept 2022]; see also Brennan v Metropolitan Opera Assn., 192 F3d 310,

318 [2d Cir 1999] [“a plaintiff must still prove that the incidents were ‘sufficiently continuous and

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 24 of 32 Motion No. 001

24 of 32 [* 24] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

concerted’ to be considered pervasive”] [citation omitted]). Plaintiff identified the telephone call

with Gibbons and the two cancelled meetings with Pulaski as the objectionable conduct underlying

his hostile work environment claims (NYSCEF Doc No. 39 at 116). These discrete episodes hardly

qualify as repeated conduct for purposes of the NYSHRL (see Blackman, 206 AD3d at 605).

“[M]aking fun of an employee’s accent is offensive and inappropriate, and may cause a

decidedly unpleasant work environment” (Hanna v New York Hotel Trades Council & Hotel Assn.

of NY City Health Ctr., Inc., 18 Misc 3d 436, 444 [Sup Ct, NY County 2007]). Here, plaintiff’s

testimony that Quilty, Blake, Hull and Kiln “sometimes” joked about his accent fails to establish

the type of relentless, repeat conduct necessary to sustain a hostile work environment claim (see

Zheng-Smith v Nassau Health Care Corp., 2021 WL 4097316, *3, 2021 US App LEXIS 27084,

*7 [2d Cir, Sept. 9, 2021], cert denied 142 S Ct 1675 [2022] [the plaintiff failed to demonstrate

that a supervisor’s ridicule or mocking of her accent was sufficiently severe and pervasive];

Tolbert v Smith, 790 F3d 427, 439 [2d Cir 2015] [no showing that the remarks constituted “‘a

steady barrage of opprobrious racial comments’”] [citation omitted]; Benn v City of New York,

2011 WL 839495, *10, 2011 US Dist LEXIS 22226, *27-28 [ED NY, Feb. 28, 2011, No. 07-CV-

326 (NGG) (JMA)], affd 482 Fed Appx 637 [2d Cir 2012] [episodic rather than continuous

comments on the plaintiff’s accent insufficient to sustain a hostile work environment claim]; but

see Hribovsek v United Cerebral Palsy of N.Y. City, 223 AD3d 618, 621 [1st Dept 2024]

[defendant “mocked plaintiff’s accent on a weekly basis, including in the presence of her

coworkers, claimed she did not understand plaintiff, and offered to educate plaintiff on how to

speak English”]). Plaintiff could not pinpoint when the allegedly disparaging remarks were made,

stating only that “I guess it depends on their moods, or whatever the day may be” (NYSCEF Doc

No. 39 at 101-102). “[O]nly occasional incidents and remarks … [without] cit[ing] specifics as to

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 25 of 32 Motion No. 001

25 of 32 [* 25] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

the manner, frequency or context of the alleged conduct” are not enough to support a hostile work

environment claim (Hanna, 18 Misc 3d at 444). Additionally, there is no competent evidence that

the inappropriate comments unreasonably interfered with plaintiff’s work performance (see e.g

Daeisadeghi v Equinox Great Neck, Inc., 794 Fed Appx 61, 64 [2d Cir 2019]). And while an

employer who condones such behavior may be liable, plaintiff has not tendered any admissible

evidence demonstrating that he reported those comments to his supervisors or that his supervisors

were aware of and approved such conduct (see Forrest, 3 NY3d at 311-312 [no evidence that the

defendant “knew of, let alone condoned or acquiesced in, the epithets”]). Last, plaintiff claims he

was singled out for discipline for insignificant, minor violations, but he has not presented any

evidence that such actions were taken because of his membership in a protected class (see Pitter-

Green, 223 AD3d at 578-579). The fifth cause of action for a hostile work environment under the

NYSHRL is dismissed.

Under the NYCHRL, a single comment may be sufficient for a hostile work environment

claim, provided the comment “is made in circumstances where such comment or incident would

signal views about the role of … people [sharing the plaintiff’s protected characteristic] in the

workplace” (Biggan v City of New York, 192 AD3d 498, 499 [1st Dept 2021]). Kiln’s remark

telling plaintiff to “control your Jamaican boy from committing so much crime here” (NYSCEF

Doc No. 39 at 101) constitutes such an isolated circumstance (see Pitter-Green, 223 AD3d at 579),

but it does not reflect Kiln’s view of a person sharing the plaintiff’s protected characteristics in the

workplace (compare Golston-Green, 184 AD3d at 43 [police captain’s comment that “he did not

‘like women on this job because they have babies,’ plainly expresses a view of the role of women

in the workplace”]). Furthermore, the other comments amount to nothing more than petty slights

and trivial inconveniences and are not actionable (see Ji Sun Jennifer Kim v Goldberg, Weprin,

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 26 of 32 Motion No. 001

26 of 32 [* 26] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Finkel, Goldstein, LLP, 120 AD3d 18, 26 [1st Dept 2014]). Therefore, the tenth cause of action

for a hostile work environment under the NYCHRL is dismissed.

C. Retaliation

The fourth and ninth causes of action plead claims for retaliation under the NYSHRL and

NYCHRL, respectively. The NYSHRL and NYCHRL make it unlawful to discriminate against

an employee for opposing a discriminatory practice (Executive Law § 296 [7]; Administrative

Code § 8-107 [7]). To state a claim for retaliation under the NYSHRL, the plaintiff must establish

that he or she had engaged in a protected activity of which the defendant was aware, the plaintiff

suffered an adverse action, and the existence of a causal connection between the protected activity

and the adverse action (Franco v Hyatt Corp., 189 AD3d 569, 571 [1st Dept 2020]; Fletcher v

Dakota, Inc., 99 AD3d 43, 51 [1st Dept 2012]). “[T]he causal connection needed for proof of a

retaliation claim can be established indirectly by showing that the protected activity was closely

followed in time by the adverse action” (Herskowitz v State of New York, 222 AD3d 587, 588 [1st

Dept 2023] [internal quotation marks and citation omitted]).

The elements for a retaliation claim under the NYCHRL are similar but substitutes adverse

action for action that disadvantages the plaintiff (Harrington, 157 AD3d at 585) or action that is

“‘reasonably likely to deter a person from engaging in protected activity’” (Franco, 189 AD3d at

570, quoting Administrative Code § 8-107 [7]). Retaliation claims under the NYSHRL are

analyzed under the McDonnell Douglas framework (McRedmond v Sutton Place Rest. & Bar, Inc.,

95 AD3d 671, 674 [1st Dept 2012]), whereas retaliation claims under the NYCHRL must be

analyzed under both the McDonnell Douglas and mixed-motive frameworks (Ellison v Chartis

Claims, Inc., 178 AD3d 665, 667-668 [2d Dept 2019], lv dismissed 35 NY3d 997 [2020]). A

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 27 of 32 Motion No. 001

27 of 32 [* 27] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

defendant moving for summary judgment dismissing a retaliation claim brought under the

NYSHRL or the NYCHRL “must demonstrate that the plaintiff cannot make out a prima facie

claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions,

that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual”

(Reichman, 179 AD3d at 1119-1120 [internal quotation marks and citation omitted]).

“[O]pposing or complaining about unlawful discrimination” qualifies as a protected

activity (Forrest, 3 NY3d at 313), and participation in a protected activity is a key element for a

retaliation claim. In this case, defendants have demonstrated that plaintiff did not relay a complaint

about discrimination on the basis of race, color or national origin to the OEEO office, Levine,

Pulaski or IAB (see Diluglio v Liberty Mut. Group, Inc., 230 AD3d 643, 645-646 [2d Dept 2024];

Hribovsek, 223 AD3d 621). Plaintiff’s complaints to the OEEO office about “being treated fairly”

and to Levine about a “problem” (NYSCEF Doc No. 39 at 105 and 109) are too vague to establish

that he had made a specific complaint about discrimination (see Aykac v City of New York, 221

AD3d 494, 495 [1st Dept 2023]; Lent v City of New York, 209 AD3d 494, 495 [1st Dept 2022]).

Plaintiff’s communications with Pulaski and IAB are equally vague (see Kwong, 204 AD3d at 445;

Gonzalez v EVG, Inc., 123 AD3d 486, 487 [1st Dept 2014]). Furthermore, there is no evidence

demonstrating that plaintiff complained to his supervisors about the remarks made by Blake,

Quilty, Hull and Kiln.

The filing of a summons and complaint alleging discrimination is a protected activity

(Anandaraja v Icahn Sch. of Medicine at Mount Sinai, 227 AD3d 533, 536 [1st Dept 2024] [filing

a federal complaint is a protected activity]), and plaintiff commenced this action on June 25, 2013.

Plaintiff posits that, shortly thereafter, defendants retaliated by disciplining him.

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 28 of 32 Motion No. 001

28 of 32 [* 28] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Defendants have set forth nonretaliatory reasons for their actions. First, “an employer’s

continuation of a course of conduct that had begun before the employee complained does not

constitute retaliation because, in that situation, there is no causal connection between the

employee’s protected activity and the employer’s challenged conduct” (Melman, 98 AD3d at 129).

“If … ‘the discrimination was just as bad before the employee complained as it was afterwards,

then the employee’s complaints cannot be said to have led to that discriminatory behavior’” (Hall

v New York City DOT, 701 F Supp 2d 318, 339 [ED NY 2010], quoting Hall v Parker Hannifan

Corp., 824 F Supp 2d 464, 469 [WD NY 2009]).

Here, plaintiff declined to accept the proposed penalty for two supervisors’ complaints on

his failure to timely document his work and opted for a statutory hearing. As a result, defendants

requested a single charge and specification which was made the same day plaintiff brought this

action. Contrary to plaintiff’s contention, there is no evidence defendants were aware that the

summons and complaint had been filed, as he did not serve process upon the City or the NYPD

until July 12, 2013 (NYSCEF Doc Nos. 3-4). Thus, the first charge and specification is merely a

continuation of the same type of conduct that occurred before plaintiff filed the summons and

complaint (see Cadet-Legros, 135 AD3d at 206-207 [“all the discord – in scope, kind, and

frequency – preexisted her internal complaint”]).

The second set of charges and specifications stems from defendants’ cancellation of

plaintiff’s previously approved UF-28 for vacation the week of July 30, 2013. After plaintiff failed

to report to work that week, defendants suspended him and brought charges and specifications

against him for being AWOL, for refusing to comply with two orders to report to work, and for

submitting a UF-28 indicating that that week was his annual scheduled vacation pick. Plaintiff’s

failure to seek prior approval from a commanding officer before taking unauthorized leave

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 29 of 32 Motion No. 001

29 of 32 [* 29] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

constitutes a legitimate, non-retaliatory reason for issuing those charges (see Bantamoi v St.

Barnabas Hosp., 146 AD3d 420, 451 [1st Dept 2017]). Plaintiff does not dispute that he was

AWOL, disobeyed two lawful orders from his superiors to report to work, and submitted a UF-28

form indicating that the week was his scheduled annual pick when it was not. Indeed, Weisel

concluded after trial that plaintiff was guilty of all charges. In his decision, Weisel cited plaintiff’s

admission that the Patrol Guide requires members to receive prior approval from their

commanding officers to change annual vacation picks, and plaintiff’s testimony that “he did not

speak to a supervisor before submitting the request because ‘[t]here was no need for [him] to do

that’” (NYSCEF Doc No. 28 at 10-11). Plaintiff has not challenged the disposition.

However, less than one month had passed between the filing of the complaint and the July

20, 2013 decision cancelling plaintiff’s vacation and the decision to request new charges and

specifications. The close temporal proximity between the commencement of the action and

defendants’ actions is sufficient to raise a triable issue on causation (see Rubin v Napoli Bern Ripka

Shkolnik, LLP, 228 AD3d 595, 597 [1st Dept 2024]; Doe v New York City Police Dept., 190 AD3d

411, 413 [1st Dept 2021] [retaliation claim reinstated where the plaintiff faced “at least some ‘new’

or escalated conduct after the protected activities took place”]). Given defendants’ failure to

produce any affidavits or testimony concerning their intent at the time, “it is unclear whether the

motivation for that conduct was retaliation or continued discrimination” (Long v Aerotek, Inc., 202

AD3d 1216, 1222 [3d Dept 2022]). Accordingly, the motion, insofar as it seeks summary

judgment dismissing the fourth and ninth causes of action, is denied.

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 30 of 32 Motion No. 001

30 of 32 [* 30] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

D. Whether the NYPD is a Proper Party

Plaintiff alleges, and defendants admit, that the NYPD is an official City agency (NYSCEF

Doc No. 26, ¶ 10, NYSCEF Doc No. 13, amended answer, ¶ 10). As a City agency, the NYPD is

not an entity amenable to suit (see Metwally v City of New York, 215 AD3d 820, 823 [2d Dept

2023]; Matter of Carpenter v New York City Hous. Auth., 146 AD3d 674, 674 [1st Dept 2017], lv

denied 29 NY3d 911 [2017], citing New York City Charter § 396]). Plaintiff did not address this

part of the motion (see Hernandez v NY Prepaid Wireless LLC, 206 AD3d 409, 411 [1st Dept

2022]). Accordingly, the complaint against the NYPD is dismissed.

E. Punitive Damages

Plaintiff also seeks to recover punitive damages, but “punitive damages are not recoverable

against a state or its political subdivisions, which includes a municipality” (Dorian v City of New

York, 129 AD3d 445, 446 [1st Dept 2015]). Plaintiff did not address this part of the motion, and

thus, his claim for punitive damages is dismissed as abandoned (see Hernandez, 206 AD3d at 411).

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 31 of 32 Motion No. 001

31 of 32 [* 31] FILED: NEW YORK COUNTY CLERK 12/03/2024 04:14 PM INDEX NO. 155802/2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/03/2024

Conclusion

For all of the reasons set forth herein, it is hereby:

ORDERED that the motion brought by defendants City of New York, the New York City

Police Department, Raymond Kelly, Commissioner of the NYC Police Department, Deputy

Inspector William McSorley, Sergeant James Leo, Lieutenant Robert Gibbons, Captain Jonathan

Levine and Captain Jay McMahon for summary judgment dismissing the complaint is granted to

the extent of:

(1) dismissing the first, second, third, fifth, sixth, seventh, eighth and tenth causes of action; and

(2) dismissing plaintiff’s demand for punitive damages; and

(3) dismissing the complaint in its entirety against defendant the New York City Police Department; and

(4) the balance of the motion is otherwise denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

11/30/2024 $SIG$ DATE J. MACHELLE SWEETING, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED DENIED GRANTED IN PART X OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

155802/2013 CRUMP, CONRAD L. vs. CITY OF NEW YORK Page 32 of 32 Motion No. 001

32 of 32 [* 32]