# Khazin v. The City of New York

> District Court, E.D. New York · March 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10311530

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311530

## How later opinions describe it (automated extraction)

- noting that “employment violations under the [NYSHRL]”— including constructive discharge—“are keyed to federal standards”
- holding that evidence suggested a constructive discharge where it showed that plaintiff reasonably believed her termination was a “foregone conclusion”
- holding that the “triviality” of not being invited to an office holiday party is “precisely the kind of petty slight or minor annoyance” that are not “materially adverse” and cannot form the basis for a Title VII claim for retaliation
- noting that Burlington announced a different standard of material adversity than that previously employed in this Circuit in, for example, Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

VALENTIN KHAZIN,

Plaintiff,

MEMORANDUM AND ORDER
17-CV-3779 (LDH) (TAM)
v
THE CITY OF NEW YORK, SYLVESTER GE,
JOHN SANFORD, JOHNATHAN LIPKE, MARC
LEVINE, STEPHEN BRATHWAITE, VINCENT
GREANY, MICHAEL LAU, MICHAEL DIAZ,
and DANIEL BROWN,
Defendants.

LASHANN DEARCY HALL, United States District Judge:
Valentin Khazin (“Plaintiff”) brings the instant action against the City of New York,
Executive Officer, Highway District Sylvester Ge, Captain John Sanford, Highway Patrol
Lieutenant Jonathan Lipke, Highway Patrol Lieutenant Marc Levine, Highway Patrol lieutenant
Stephen Brathwaite, 9th Precinct Commanding Officer Vincent Greany, Lieutenant Michael Lau,
Lieutenant Michael Diaz, and Lieutenant Daniel Brown (collectively, “Defendants”), asserting
claims for retaliation under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 (“Title
VII”), the New York State Human Rights Law (“NYSHRL”), and the New York City
Administrative Code (“NYCHRL”).1 Defendants move pursuant to Rule 56 of the Federal Rules
of Civil Procedure for summary judgment to dismiss the complaint in its entirety.

1 Plaintiff also brought a Monell claim but has voluntarily withdrawn that claim. (See Pl.’s Opp’n at 1, ECF No. 90-
52.)
1
UNDISPUTED FACTS2
Plaintiff is a former police officer sergeant with the New York Police Department
(“NYPD”). (“Defs.’ 56.1 Reply”) ¶ 6, ECF No. 91-6.) On August 12, 2015, Plaintiff was
assigned to NYPD Highway District 3 because there was a need for supervisory personnel. (Id. ¶
4.) While on this assignment, Plaintiff reported directly to Defendant Lieutenant Marc Levine

and Plaintiff’s duties and responsibilities included monitoring and supervising police officers,
ensuring that 911 calls were responded to, and completing administrative tasks. (Id. ¶¶ 5, 7.)
As a sergeant supervising police officers, Plaintiff supervised police officer Dana Harge.
(Id. ¶ 6.) In August 2015, Defendant Levine informed Plaintiff that Officer Harge was a
“troublemaker and harasses women” and instructed Plaintiff to not approve days off for Officer
Harge. (Id. ¶¶ 12–13.) Defendant Levine also called Officer Harge a “liar” and “lazy” and
checked on Officer Harge more than other officers. (Id. ¶ 14.)
Plaintiff observed Defendant Ge, the Executive Officer of the Highway District, treat
Officer Harge “more harshly than other officers”. (Id. ¶ 40.) Defendant Ge allegedly conducted

investigations into Officer Harge, directed supervisors to closely supervise officer Harge, and
monitored Officer Harge’s timeliness. (Id. ¶¶ 15–16, 40.) Defendant Ge was assigned to the

2 The following facts are taken from the parties’ statements of material fact pursuant to Local Rule 56.1 and annexed
exhibits. Unless otherwise noted, the facts are undisputed. However, another point bears emphasis. Many of the
undisputed facts contained in the parties’ joint Rule 56.1 Statement reflect a misunderstanding of the utility of a
Rule 56.1 Statement—to aid the Court, which does not have the advantage of the parties’ familiarity with the record
and often cannot afford to spend the time combing the record to locate the relevant information, in determining
whether a trial is necessary. Thus, these facts are of little aid to the Court in deciding the instant motion.
Specifically, Defendants include in their submission facts that simply state that Plaintiff “alleges” statements and
conduct by Defendants without admitting or denying the underlying fact. (See, e.g., Defs.’ 56.1 Reply ¶ 12)
(“Plaintiff alleges that Lt. Levine informed him in or around August 2015, that PO Dana Harge was a ‘troublemaker
and harasses women.’”) (emphasis added); see also id. ¶ 13 (“During that conversation, plaintiff alleges that Lt.
Levine instructed plaintiff not to approve days off for PO Harge while Lt. Levine was on vacation.”) (emphasis
added). The Court also notes that this is not first time it has encountered this problem with submissions by the
Corporation Counsel of the City of New York. That said, for the purposes of this memorandum, any statement of
fact merely restating an allegation made by Plaintiff will be deemed admitted.
2
Internal Affairs Bureau and was investigating Officer Harge after a female motorist filed a
complaint against him for sexual harassment. (Id. ¶ 17.) Additionally, according to Defendants,
Officer Harge was being closely monitored to ensure he was going to the Traffic Violations
Bureau because he missed traffic court on prior occasions. (Id. ¶ 18.)
Defendant Jonathan Lipke, an Integrity Control Officer, treated Officer Harge “more

stringently” than other officers, repeatedly calling him into his office and conducting “daily
checks” of officer Harge’s assignments. (Id. ¶¶ 23, 54.) Defendant Stephen Brathwaite directed
supervisors to closely supervise Officer Harge and conducted investigations into him. (Id. ¶¶
198.) Defendant Sanford also closely supervised officer Harge and conducted investigations into
him. (Id. ¶¶ 204–07.) While Officer Harge was on limited duty, Defendants John Sanford and
Levine instructed Plaintiff to ensure Officer Harge had consistent work to do. (Id. ¶ 20.) When
Plaintiff offered an alternative solution to this instruction, Defendants rejected it because
Defendant Sanford wanted Officer Harge to be “constantly supervised” and to have “constant
work to do.” (Id. ¶ 22.)

Notwithstanding Defendants’ instructions, Plaintiff allowed Officer Harge a day off to
attend his daughter’s baseball game even though Defendant Levine directed him not to. (Id. ¶
45.) Plaintiff also allowed Officer Harge to leave early even though he was instructed by
Defendant Levine not to give Officer Harge time off. (Id. ¶ 46.)
On November 30, 2015, Plaintiff’s assignment tour was changed from the 5 a.m. to 2
p.m. shift to the 2 to 11 p.m. shift. (Id. ¶ 42.) Plaintiff’s tour was change following an incident
where he inaccurately filled out an absence form for another officer, which Defendants Levine
and Lipke informed him constituted a falsification of records. (Id. ¶ 47.) Plaintiff does not
dispute that he filled out a form for an officer who left early, but, on Plaintiff’s telling, it was the
3
officer who forgot to place the time he left the command on the form and that filling out a form
for an officer who left early was not against NYPD policy. (Id.) Once Plaintiff’s tour had
changed, the parties agree that Plaintiff asked Defendant Sanford to return him to his original
tour, Defendant Sanford agreed, and in January 2016 Plaintiff was restored to his original tour.
(Id. ¶¶ 48–50.)

Defendant Lipke began investigating Plaintiff in December 2015 after Sergeant Georgia
Madouros filed a complaint with the Internal Affairs Bureau (“IAB”), alleging that Plaintiff
engaged in unauthorized off-duty employment and used a police vehicle to do so. (Id. ¶ 73.)
Defendant Lipke’s duties included conducting covert investigations of officers under his
supervision to ensure they were complying with NYPD policies, and that pursuant to these
duties, Defendant Lipke followed Plaintiff to determine if he was engaging in unauthorized off-
duty employment. (Id. ¶¶ 52–55.) Under the NYPD departmental rules, uniformed members are
not permitted to work off-duty employment without submitting an off-duty application,
undergoing an interview, and receiving prior written supervisory approval. (Id. ¶¶ 57–60.)

Failure to follow departmental rules regarding off-duty employment can result in discipline. (Id.
¶ 65.) Plaintiff obtained permission from the NYPD to work at one company for 2015 and was
aware that approved off-duty employment applications were only valid for a year. (Id. ¶¶ 71–
72.) Yet, Plaintiff had worked off-duty at several different locations without obtaining prior
written approval in 2015, 2016 and 2018. (Id. ¶¶ 66–72.) Plaintiff submitted five applications to
engage in off-duty employment dated January 30, 2016, but they were not acted upon because
Plaintiff had an open investigation into his conduct. (Id. ¶¶ 81–82.) Because Plaintiff’s
applications were not denied, Plaintiff believed they were approved. (Id. ¶¶ 55, 66–72.)

4
Defendant Lipke’s investigation concluded on March 30, 2016. (Id. ¶ 74.) The next day,
Defendant Lipke issued a final investigatory report where Plaintiff was found to have engaged in
unauthorized off-duty employment, failed to supervise, and violated departmental rules and
procedure. (Id. ¶¶ 74–76.) Defendant Lipke recommended that Plaintiff be transferred from
Highway 3. (Id.)

Sometime in June 2016, Defendant Ge began monitoring Plaintiff’s vehicle movements
because he believed that Plaintiff was again engaging in off-duty employment while on duty.
(Id. ¶ 83.) Defendant Ge observed that Plaintiff was off post at a bakery with Officer Harge for
an extended period of time. (Id. ¶¶ 84–86.)
On June 6, 2016, Plaintiff was transferred from Highway 3 to the 9th precinct. (Id. ¶ 89.)
Once reassigned to the 9th Precinct, Plaintiff filed a complaint with the NYPD’s Office of Equal
Employment Opportunity (“EEO”) on June 29, 2016, alleging that he believed Defendant Lipke
was issuing Officer Harge unwarranted command disciplines. (Id. ¶¶ 25, 27.) The NYPD EEO
investigated Plaintiff’s June 29, 2016 complaint and concluded that it was unsubstantiated. (Id. ¶

28.) According to Plaintiff, he was denied a drug trafficking training at an unspecified time
following his June 2016 EEO complaint. (Id. ¶ 90.)
On August 22, 2016, the Transportation Bureau Investigation Unit issued a command
discipline against Plaintiff, known as a “B” command discipline. (Id. ¶ 77.) A command
discipline is a written disciplinary measure that can result in the loss of up to ten vacation days.
(Id. ¶ 31.) The B command discipline was issued against the Plaintiff as a result of the
investigation into his on- and off-duty activities. (Id. ¶ 86.) Specifically, the command
discipline found that Plaintiff failed to account for the whereabouts of an officer under his
command, that Plaintiff inaccurately completed a leave of absence report when the officer left
5
the shift early, that Plaintiff engaged in unauthorized off-duty employments between summer of
2014 and February 2016, that Plaintiff conducted a vehicle stop on November 10, 2015 without
notifying the Communication Division, and that Plaintiff failed to supervise four officers during
the Veterans Day parade detail on November 11, 2015. (Id. ¶ 77.) As a punishment for these
indiscretions, Plaintiff was docked ten days of pay. (Id. ¶ 282.) Plaintiff accepted the

disciplinary action and punishment. (Id. ¶¶ 78–79, 283.)
On November 1, 2016, Plaintiff filed a second EEO complaint for retaliation, alleging
that Defendant Lipke visited the 9th Precinct in September 2016, and after the visit, Plaintiff was
deprived overtime and served with charges and specifications issued by Defendant Lipke and
Defendant Ge. (Id. ¶¶ 92–93.) Despite his claims in his EEO complaint, Plaintiff earned more
overtime than other sergeants in the 9th Precinct in 2016. (Id. ¶ 94.) Plaintiff also was assigned
to more details after he filed his complaint. (Id. ¶ 95.)
On November 7, 2016, less than a week after Plaintiff filed his EEO complaint, Plaintiff
was placed on Level I – Performance Monitoring by Inspector Cosgrove, the commanding

officer of the Performance Analysis Section. (Id. ¶ 99.) As a result of Plaintiff’s placement on
Level I – Performance Monitoring, Defendant Greany switched Plaintiff to a day tour. (Id.¶
101.) On December 19, 2016, Plaintiff supplemented his November 1, 2016 complaint of
retaliation to include claims that Defendants placed him on performance monitoring and day
tours, scrutinized, him and gave him undesirable assignments. (Id. ¶ 98.) According to Plaintiff,
that he was no longer invited to attend commanding officer meetings after his November 1 EEO
complaint. (Id. ¶ 96.)
The NYPD EEO investigated Plaintiff’s November and December complaints, and
determined on March 16, 2017, that there was no evidence of retaliation. (Id. ¶ 110.) Following
6
Plaintiff’s December 19, 2016 EEO supplemental complaint, he claims that he received three
unspecified, minor violations but they did not result in any discipline. (Id. ¶ 109.)
On February 24, 2017, Plaintiff filed a retaliation complaint with the IAB, which was
referred to the NYPD EEO. (Id. ¶ 111.) In that complaint, Plaintiff claimed he was retaliated
against for his prior EEO complaints and that he did not receive overtime or was delayed being

paid overtime. (Id. ¶ 112.) Plaintiff sometimes was not paid overtime on time dating back as
early as January 2, 2015. (Id. ¶ 119.) On April 18, 2017, The NYPD EEO notified Plaintiff that
it found no evidence of retaliation because it had determined that Plaintiff had been paid for the
overtime he earned in January and that any delay in payment was the result of Plaintiff’s failure
to timely submit his overtime slip. (Id. ¶ 117.) Three days after filing his retaliation complaint
with the IAB, on February 27, 2017, Plaintiff requested to transfer to the Central Park Precinct,
which Defendant Greany recommended him for on March 8, 2017. (Id. ¶¶ 120–21.)
On June 11, 2017, Plaintiff appealed the rating he received on his annual performance
review. (Id. ¶ 128.) For the officer “rating period” from January 2016 to December 2016,

Plaintiff received a “3” rating on his annual performance evaluation. (Id. ¶¶ 127.) As a result of
that appeal, Defendant Greany increased Plaintiff’s rating to 3.5. (Id. ¶ 128.) Plaintiff appealed
his 3.5 rating, but that appeal was denied. (Id. ¶129.) Although Plaintiff had received 3 and 3.5
ratings prior to this annual evaluation, this was the first time he appealed an evaluation rating.
(Id. ¶¶ 131–32.)
On September 15, 2017, Plaintiff filed an anonymous complaint with the IAB alleging
that Defendant Lau, Plaintiff’s supervisor at the 9th Precinct, was engaged in a hit and run
accident while intoxicated. (Id.¶ 136.) On September 27, 2017, Plaintiff was interviewed about
the submission of the anonymous complaint and for unauthorized off-duty employment he was
7
suspected to have engaged in. (Id. ¶¶ 122, 135.) During this investigation, Plaintiff admitted to
engaging in off-duty employment while on sick report and that he submitted an anonymous
complaint to the IAB claiming his supervisor at the 9th Precinct was involved in a hit and run
accident while intoxicated. (Id. ¶¶ 135–37.) Plaintiff also conceded that he did not witness the
events in the anonymous complaint and had no knowledge that they in fact happened. (Id. ¶

137.)
On February 18, 2018, while the investigation into his anonymous complaint and off-duty
activities was ongoing, Plaintiff applied to two positions within the 9th precinct, Field Training
Sergeant and a Highway Safety Sergeant. (Id. ¶ 455.) Plaintiff did not receive either position.
On June 27, 2018, the Patrol Borough Manhattan South Investigations Unit determined that
Plaintiff’s anonymous complaint was unfounded. (Id. ¶ 138.) On October 11, 2018, Plaintiff
was suspended without pay for 30 days as a result of the investigation. (Id. ¶ 134.) Additionally,
on October 24, 2018, Plaintiff was issued with charges and specifications for engaging in off-
duty employment without authorization and permission on several occasions and was served on

December 11, 2018. (Id. ¶¶ 143–44.)
When Plaintiff returned from his suspension on November 11, 2018, he was placed on
modified assignment to the Housing Borough Bronx/Queens VIPER 21-unit, reporting to
Defendant Lieutenant Lawrence Hawkins. (Id. ¶¶ 145–46.) On November 26, 2018, Defendant
Hawkins issued a command discipline to Plaintiff for failing to account for a uniformed member
of service on two dates. (Id. ¶ 149.)
Plaintiff resigned on March 15, 2019, from the NYPD. (Id. ¶ 151.) On December 19,
2016, Plaintiff filed a charge of retaliation with the New York State Division of Human Rights
and then commenced the instant action on July 18, 2017. (Id. ¶¶ 152–154.)
8
STANDARD OF REVIEW
Summary judgment must be granted when there is “no genuine dispute as to any material
fact and the movant[s] are entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A genuine dispute of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. The movants bear the initial burden of
demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Where the non-
movant bears the burden of proof at trial, the movants’ initial burden at summary judgment can
be met by pointing to a lack of evidence supporting the non-movant’s claim. Celotex Corp., 477
U.S. at 325. Once the movants meet their initial burden, the non-movant may defeat summary
judgment only by producing evidence of specific facts that raise a genuine issue for trial. See
Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 250; Davis v. New York, 316 F.3d 93, 100
(2d Cir. 2002). The Court is to believe the evidence of the non-movant and draw all justifiable

inferences in his favor, Anderson, 477 U.S. at 255, but the non-movant must still do more than
merely assert conclusions that are unsupported by arguments or facts. BellSouth Telecomms.,
Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).
DISCUSSION
I. Retaliation Claims Under Section 1983, Title VII, NYSHRL, and NYCHRL
Title VII “forbids an employer to retaliate against an employee for, inter alia,
complaining of employment discrimination prohibited by Title VII.” Kessler v. Westchester
Cnty., 461 F. 3d 199, 205 (2d Cir. 2006). The NYSHRL and NYCHRL similarly make it
unlawful for an employer to retaliate or discriminate against an employee because he or she has
9
opposed a practice that is forbidden under those statutes. See N.Y. Exec. Law § 296(7); N.Y.C.
Admin. Code § 8–107(7).
To establish a retaliation claim under Title VII, Plaintiff must first establish that he: “(1)
“participat[ed] in a protected activity; (2) that the defendant knew of the protected activity; (3) an
adverse employment action; and (4) a causal connection between the protected activity and the

adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005) (quoting McMenemy v. City of Rochester, 241 F.3d 279, 282–83 (2d Cir. 2001)). If a
Plaintiff meets this initial burden, the Defendant must “articulate a legitimate, non-retaliatory
reason for the adverse employment action,” and if Defendants offer such proof, the Plaintiff must
“show that retaliation was a substantial reason for the adverse employment action.” Id. at 173–
74. The same standard for retaliation claims under Title VII also applies to retaliation claims
pursuant to Section 1983 and the NYSHRL. See Conklin v. Cnty. of Suffolk, 859 F. Supp. 2d
415, 424 (E.D.N.Y. 2012) (Section 1983); Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir.
2013) (NYSHRL). Retaliation claims under the NYCHRL are analyzed under the McDonnell

Douglas burden-shifting framework, but they are reviewed “more liberally” than federal law
claims. See Dillon v. Ned Management, Inc., 85 F. Supp. 3d 639, 661 (2015) (finding that “[i]n
contrast to Title VII, NYCHRL does not require a plaintiff to establish that she incurred an
‘adverse employment action’ in order to support a retaliation claim; rather, it requires only a
showing that the event was ‘reasonably likely to deter a person from engaging in protected
activity.’”). Under that standard, a jury must “reasonably conclude” that the alleged conduct by
the employer was “reasonably likely to deter a person from engaging in protected activity.”
Fincher v. Depository Tr. And Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010).

10
As a threshold matter, there is no dispute that Plaintiff engaged in three separate instances
of protected activity, when he filed formal complaints of discrimination on June 29, 2016,
November 1, 2016, and February 24, 2017.3 (See generally Defs.’ Mem. in Supp. of Mot. for
Summ. J. (“Defs.’ Mem.”), ECF No. 89-78.) Plaintiff claims, however, that Defendants
retaliated against him even before he filed a formal complaint, when he refused to follow

instructions that he believed treated Officer Harge unfairly. (Pl.’s Mem. in Opp’n to Defs.’ Mot.
for Summ. J. (“Pl.’s Opp’n”) at 14, ECF No. 90-52.) Defendants contend that Plaintiff’s refusal
to follow his superiors’ instructions does not constitute protected activity. (Defs.’ Mem. at 5.)
The Court agrees.
To qualify as a protected activity, “an employee must have a good faith, reasonable belief
that the challenged actions violated the law.” Bamba v. Fenton, 758 F. App’x. 8, 13 (2d Cir.
2018) (citing Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d
Cir. 2013)). A plaintiff’s belief is not considered reasonable because “she complains of
something that appears to be discrimination in some form”, but rather the employer “must be

able to reasonably understand that the complaint was directed at conduct prohibited by Title
VII.” Id. at 12-13 (citing Kelly, 716 F.3d at 15–17).
Plaintiff’s refusal to follow the alleged directives of his supervisors was not a form of
protest that would put Defendants on notice that he was refusing their orders because they were
discriminatory. Plaintiff never complained about the alleged discriminatory or retaliatory
behavior he observed on behalf of Officer Harge or himself prior to June 29, 2016, when he filed
his EEO complaint. (Defs.’ 56.1 Reply ¶¶ 25–27.) And, there is no evidence in the record that

3 Plaintiff does not contend that his December 19, 2016 EEO supplemental complaint constituted protected activity
and has therefore abandoned any claim that he suffered retaliation as a result of that complaint.
11
Defendant Levine, who directed Plaintiff to discipline Officer Harge, knew that Officer Harge
had filed an EEO complaint. Therefore, Plaintiff’s refusal could not have put Defendants on
notice that he was opposing discrimination. See Filippi v. Elmont Union Free Sch. Dist. Bd. of
Educ., No. 09-CV-4675 JFB ARL, 2012 WL 4483046, at *16 (E.D.N.Y. Sept. 27, 2012) (“The
onus is on the speaker to clarify to the employer that he is complaining of unfair treatment due to

his membership in a protected class and that he is not complaining merely of unfair treatment
generally.”) (internal quotation marks and citation omitted)).
Plaintiff’s reliance on Villavicencio v. Gure-Perez, 56 F. Supp. 3d 178 (E.D.N.Y. 2014),
cannot transform his refusal to follow orders into protected activity. In Villavicencio, an
assistant principal brought a Section 1983 retaliation claim against the principal under whom she
worked, asserting that the principal retaliated against her for refusing to promote racial
discrimination. Id. at 189. The court held that the plaintiff’s refusal to provide older African
American teachers with unjustified ratings, and her suggestion to the principal that she provide
these teachers with more lead time before formal observations and evaluations, was protected

activity for purposes of her retaliation claim. Id. Given that the principal “had already
aggressively retaliated against another assistant principal . . . for complaining about [the
principal’s] proclivity for racist thinking, . . . plaintiff has satisfied the burden of establishing [the
plaintiff’s] awareness of a protest.” Id. at 190.
Here, by contrast, the record fails to demonstrate that Defendant Levine had a history of
engaging in discriminatory conduct as to put him on notice that Plaintiff’s refusal to follow his
orders constituted an informal protest against discrimination. Plaintiff has failed to raise a
genuine dispute of material fact that his refusal to discipline Officer Harge was protected

12
activity. As a result, Plaintiff’s transfer from Highway 3 to the 9th precinct in June of 2016 did
not constitute retaliation.
But that does not end the inquiry. Plaintiff raises eight adverse employment actions taken
by Defendants that he argues were done in retaliation for his formal complaints: Defendants (1)
gave him a poor annual evaluation, (2) denied Plaintiff’s applications for two position in lieu of a

less senior and less qualified sergeants, (3) denied Plaintiff a training opportunity, (4) did not
invite him to attend commanding officer meetings, (5) delayed payment of Plaintiff of overtime,
(6) launched an investigation into Plaintiff’s off-duty activities, (7) issued a B command
discipline against Plaintiff, and (8) disciplined him by placing him on Level I Monitoring. (Pl.’s
Mem. at 16–19.) Defendants do not dispute that many of these actions could constitute adverse
employment actions. However, they contend that (1) the rating Plaintiff received for his
performance evaluation, (2) the denials of his applications for two sergeant positions, (3) the
purported denial of his training request, and (4) his non-attendance at commanding officer
meetings are not adverse employment actions. (Def.’s Mem. at 12–15.) The Court agrees.

In Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the Supreme Court
clarified a plaintiff's burden in demonstrating whether an employment action was materially
adverse in the retaliation context. The Court held that “a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68 (internal citations and quotation marks omitted); see also Kessler v.
Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 207 (2d Cir. 2006) (noting that Burlington
announced a different standard of material adversity than that previously employed in this
Circuit in, for example, Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)).
13
However, “[t]he requirement of a materially adverse employment action reflects the principle
that ‘Title VII does not protect an employee from all retaliation, but only retaliation that
produces an injury or harm.’” Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11,
24–25 (2d Cir. 2014) (quoting Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556,
569 (2d Cir. 2011)).

As to Plaintiff’s first claimed adverse employment action, Plaintiff claims he received “a
poor performance evaluation [that] could very well deter a reasonable worker from
complaining.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 92 (2d Cir. 2015). Here,
however, there is simply no evidence that Plaintiff’s 2016 ratings of 3 and 3.5 reflected a poor
performance evaluation when considered against his past performance. See Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (noting that, in evaluating
whether employment action is materially adverse, “some actions may take on more or less
significance depending on the context”). In fact, the record shows that Plaintiff had received 3
and 3.5 ratings on his evaluations in prior years. (Defs.’ 56.1 Reply ¶¶ 131–32.); cf. Byrne v.

Telesector Res. Grp., Inc., 339 F. App’x. 13, 17 (2d Cir. 2009) (concluding that because
satisfactory performance evaluation was still positive, it was not adverse employment action in
Title VII retaliation context, even though evaluation was lower than in previous years).
Therefore, Plaintiff has not shown that a reasonable employee in his position would have been
dissuaded from making or supporting a charge of discrimination based on his 2016 performance
evaluation.
With respect to the second adverse employment action Plaintiff claims, that he was
denied the Highway Safety and Field Training Sergeant positions, there is no evidence in the
record that there was an open position that Plaintiff could transfer into or that Plaintiff was
14
qualified or more qualified than others for any of the positions he sought. Nor is there evidence
that the denials disadvantaged Plaintiff in any way. See e.g., Witek v. City of New York, No. 12
Civ. 981 (CBA), 2019 U.S. Dist. LEXIS 229703 at *26–27 (E.D.N.Y. Mar. 12, 2019) (finding
refusal by the plaintiff’s employer to transfer her to another unit in the hospital was not an
adverse employment action). Thus, the denials of Plaintiff’s applications are not materially

adverse employment actions that might have dissuaded a reasonable employee from making or
supporting a charge of discrimination.
Nor has Plaintiff provided evidence of the third adverse employment action, that
Defendants denied him training. The only support that Plaintiff can muster for that claim is his
own testimony, was that he was put on a six-month waitlist for a drug trafficking training
program. (Defs.’ Ex. B at 249:1–7, ECF No. 89-6.) That alone, however, is not a denial.
Because the record is devoid of any evidence that Plaintiff was ever denied the drug trafficking
training program he sought or that he was entitled to receive it, Plaintiff has not shown that this
constituted a materially adverse action. Similarly, Plaintiff’s fourth adverse employment action,

that he did not receive an invitation to attend commanding officer meetings, even if true, does
not rise to the level of an adverse employment action. See, e.g., Mahoney v. Donovan, 824 F.
Supp. 2d 49, 61 (D.D.C. 2011) (holding that the “triviality” of not being invited to an office
holiday party is “precisely the kind of petty slight or minor annoyance” that are not “materially
adverse” and cannot form the basis for a Title VII claim for retaliation).
Given that Plaintiff has not adduced sufficient record evidence that he suffered the first
four adverse employment actions, they cannot support a viable retaliation claim. What remains
are (5) Plaintiff’s delayed overtime payments, (6) Defendants’ investigation into Plaintiff’s off-
duty activities, (7) the B command discipline issued against Plaintiff, and (8) Plaintiff’s
15
placement on Level I – Performance Monitoring. Even assuming these remaining incidents
constitute adverse employment actions, Defendants maintain that Plaintiff cannot establish a
causal link between his protected activity and these actions taken against Plaintiff. (Defs.’ Mem.
at 15–16.) Here, again, Court agrees.
To establish a causal connection to support a retaliation claim, a plaintiff must show that

the protected activity “was closely followed in time by the adverse [employment] action.”
Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir.
2001) (internal quotation marks and citation omitted). Although the Second Circuit has not
“drawn a bright line to define the outer limits beyond which a temporal relationship is too
attenuated to establish a causal relationship between the exercise of a federal constitutional right
and an allegedly retaliatory action,” the Court typically has held that more than two months
breaks the causal chain. Id.; see also Marinacci v. United States Postal Service, 403 F. Supp. 3d
116, 130–131 (2d Cir. 2017) (stating that “district courts in this Circuit have ‘consistently held
that a passage of more than two months between the protected activity and the adverse

employment action does not allow for an inference of causation.’”) (internal citation omitted).
Regarding the fifth adverse employment action, his delayed overtime payment, the denial
of overtime certainly falls within the definition of materially adverse actions that satisfy that
element of a retaliation claim. See Huaman v. Amer. Airlines Inc., No. 00-CV-6336 FB MDG,
2005 WL 2413189, at *7 (E.D.N.Y. Sep. 29, 2005). There is no dispute, however, that Plaintiff
experienced issues with late overtime payment as early as January 2015, more than a year before

16
his first protected activity took place in June 2016.4 (Defs.’ 56.1 Reply ¶ 119.) Moreover, the
record shows that any delay in Plaintiff’s overtime payments may have resulted from Plaintiff’s
own errors in submitting his overtime slips. (Id. ¶ 117.) As such, Plaintiff has not demonstrated
that the delays in his overtime payments were connected in any way to his EEO and IAB
complaints.

Plaintiff claims that the sixth and seventh adverse employment actions, Defendant
Lipke’s investigation into his off-duty activities and the B command discipline issued against
Plaintiff as a result of that investigation, were part of a series of unwarranted disciplinary actions
in as a response to Plaintiff’s EEO complaints. (Pl.’s Opp’n at 20.) However, Plaintiff’s first
protected activity took place on June 29, 2016, when he filed a complaint on behalf of Officer
Harge. This complaint was filed well after Defendant Lipke’s investigation began in December
2015. Thus, Defendant Lipke’s investigation cannot have possibly been initiated in retaliation
for Plaintiff’s protected activity. See Matthew v. JPMorgan Chase Bank, N.A., No. 17-CV-3594
(RRM) (ARL), 2020 WL 2523064, at *6 (E.D.N.Y. May 18, 2020) (finding no causal connection

to support retaliation claim where the plaintiff did not file a charge of discrimination until three
months after adverse employment action). Because there is no dispute that the B command
discipline was issued, in part, as a result of Defendant Lipke’s investigation, (Defs.’ 56.1 Reply ¶
86), that action, too, lacks a causal connection to Plaintiff’s protected activity.

4 Plaintiff also claims that other “similarly situated” sergeants who held lesser rankings than Plaintiff earned as much
as $70,000 more income than Plaintiff from 2016 to 2018. Plaintiff points to his Exhibit 34, (ECF No. 90-35), to
substantiate his claim. However, that exhibit is woefully deficient, as it does not contain any information regarding
the comparators’ employment statuses or show how many overtime hours the comparators worked or on what dates
they worked those hours. Therefore, Plaintiff has not raised a genuine dispute on this issue.
17
Plaintiff has also failed to demonstrate that his eighth and final adverse employment
action, his placement on Level I – Performance Monitoring, was tied in any way to his protected
activity. Although Plaintiff was placed on Level I – Performance Monitoring within a week of
his November 2016 EEO complaint, there is no evidence whatsoever that Inspector Cosgrove,
who was responsible for placing Plaintiff on Level I – Performance Monitoring, was aware of

Plaintiff’s prior complaints. See Watson v. Richmond Univ. Med. Ctr., 408 F.Supp.3d 249, 268
(E.D.N.Y. 2019) (holding that plaintiff could not establish prima facie case of retaliation where
plaintiff failed to establish that the defendants were aware of the plaintiff’s EEO complaint until
after her termination).
* * *
In sum, Plaintiff has not demonstrated a prime facie case of retaliation by Defendants as a
result of any protected activity.

II. Constructive Discharge Claim
Defendants argue that Plaintiff cannot sustain a constructive discharge claim because no
allegations support an inference that Defendants created an intolerable work environment at the
time of his resignation in March 2019. (Defs.’ Mem. at 18–22.) The Court agrees.
A constructive discharge of an employee “occurs when an employer, rather than directly
discharging an individual, intentionally creates an intolerable work atmosphere that forces an
employee to quit involuntarily.” Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 92 (2d

Cir. 1996). To prove a constructive discharge claim under federal and New York law, a plaintiff
must “show both (1) that there is evidence of the employer’s intent to create an intolerable
environment that forces the [plaintiff] to resign, and (2) that the evidence shows that a reasonable
18
person would have found the work conditions so intolerable that he would have felt compelled to
resign.” Shultz v. Congregation Shearith Isr. of the City of N.Y., 867 F.3d 298, 308 (2d Cir.
2017) (internal citation omitted); see Mascola v. City Univ. of N.Y., 787 N.Y.S.2d 655, 655 (NY.
App. Div. 1st Dep’t 2005) (noting that “employment violations under the [NYSHRL]”—
including constructive discharge—“are keyed to federal standards”); see also Anyachebelu v.

Brooklyn Hosp. Ctr., No. 16 CV 3159 (DLI)(VMS), 2017 WL 9511073, at *16–17 (E.D.N.Y.
July 20, 2017) (observing that the constructive discharge analysis applies to constructive
discharge claims brought under the NYSHRL and the NYCHRL). “
Plaintiff claims that he was forced to retire because he believed that the retaliatory acts of
defendants would not cease. (See Defs’ 56.1 ¶¶ 150–51.) However, nothing in the record
supports that claim. At least four months lapsed between Plaintiff’s retirement on March 15,
2019, and the command discipline he received on November 26, 2018, the last evidence of any
adverse action taken against Plaintiff. The record is therefore devoid of any evidence that any
actions taken by Defendants in 2018 or 2019 could be perceived as making his discharge “a

forgone conclusion” considering Plaintiff’s last protected activity took place in 2017. Cf.
Borrero v. Am. Exp. Bank Ltd., 533 F. Supp. 2d 429, 441 (S.D.N.Y. 2008) (holding that evidence
suggested a constructive discharge where it showed that plaintiff reasonably believed her
termination was a “foregone conclusion”); Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d
Cir. 1987) (employer’s statement that a plaintiff “would be fired . . . no matter what he did” held
to be sufficient on its own to establish constructive discharge); Cronin v. St. Lawrence, No. 08–
CV–6346 (KMK), 2009 WL 2391861, at *4 (S.D.N.Y. 2009) (denying a motion to dismiss
retaliation claim where plaintiff alleged he resigned because he “did not feel that he had any
alternative”).
19
CONCLUSION
For the aforementioned reasons, Defendants’ motion for summary judgment is
GRANTED.
SO ORDERED.
Dated: Brooklyn, New York /s/ LDH
March 29, 2024 LASHANN DEARCY HALL
United States District Judge

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311530. Public record. Not legal advice.