ening to investigate medical fraud, do not constitute `adverse employment actions.'"). Nor does the evidence support Plaintiffs' assertion that white detectives were not required to submit late forms to support an inference of discrimination.
See Ex. JJJ (documenting detectives required to submit late forms, including multiple detectives other than Plaintiffs). Plaintiffs' Title VII claim based on the requirement that they supply late forms is dismissed.
Plaintiffs next claim Lt. Moroney deflated the evaluations of Hispanic detectives in order to justify promoting two white detectives who were less qualified, non-parties Kruse and Degrazia. Negative employment evaluations do not generally rise to the level of adverse employment actions. See Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 756 (2d Cir. 2004) (holding negative employment evaluation that had no effect on terms and conditions of complainant's employment did not constitute adverse employment action); Payne v. State of N.Y. Power Auth., 997 F. Supp. 492, 500 (S.D.N.Y. 1998) (negative performance evaluations alone did not constitute adverse employment actions). Here, documents provided by Plaintiffs to the court demonstrate Plaintiff Rosado received a ranking of 4.5 in both years documented, the highest ranking received by any Detective reviewed. Flores received rankings of 4 and 4.5, and Gutierrez received the ranking of 4 in these same years. Given the strength of these rankings compared with those of other detectives in the unit, and the fact that both Rosado and Gutierrez were recommended for promotion, it is difficult to see how these rankings could have had any negative effect on the Plaintiffs. See Pl. Opp. 20-22 (recognizing the strength of Plaintiffs' ratings). Only Detective Canela received relatively lower ratings of 3.5 and 4. As noted supra, Defendant Moroney described Canela's skills and disciplinary record as lacking. Assuming Canela states a prima facie case, a de minimis requirement, he provides no evidence that Defendants' explanation for his low ranking is pretextual. As such, Plaintiffs' Title VII claims based on deflated evaluations are dismissed.
Cases cited by Plaintiffs that provide negative evaluations can rise to such a level are in the context of retaliation claims, which, as discussed infra, have a lower standard. See Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (in the context of retaliation claim, "[l]esser actions such as negative employment evaluation letters may also be considered adverse") (citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)).
Plaintiffs next allege Defendants refused to act on their transfer requests. However, Plaintiffs do not contend that they sought transfer to a different type of position or that the transfer would in any way alter the terms and conditions of their employment. See Lee v. N.Y. State Dep't of Health, Nos. 98 Civ. 5712 (RMB) (HBP), 99 Civ. 4859 (RMB) (HBP), 2001 WL 34031217, at *18 (S.D.N.Y. Apr. 23, 2001) (finding denial of transfer request not adverse employment action where "plaintiff admits that the transfer request was for a new supervisor, as opposed to a change in the terms or conditions of her employment"); see also Galabya, 202 F.3d at 640 (finding no adverse employment action where "[a]ppellant has not produced evidence to show that the transfer was to an assignment that was materially less prestigious, materially less suited to his skills and expertise, or materially less conducive to career advancement"). There is no evidence that Plaintiffs would receive different types of assignments upon transferring or that non-minority detectives were readily transferred. Cf. Terry, 336 F.3d at 144 (finding forced transfer was adverse employment action where plaintiff alleged "INS transferred him . . . with the intent to harass him, and has put forth evidence sufficient to permit a trier-of-fact to conclude that his supervisors believed that he would find the new assignment to be adverse"). To the extent Plaintiffs' claims are based on failure to transfer, they are dismissed.
Finally, Plaintiffs' allegations that Defendants refused to grant days off, required that Plaintiffs adhere more strictly to the dress code than white detectives, and "checked up on" plaintiffs Flores and Rosado are not adverse employment actions. While such actions may have made the work place unpleasant, and will be considered in the context of Plaintiffs' hostile work environment claim, Plaintiffs fail to demonstrate these actions had any attendant negative result. See Terry, 336 F.3d at 147 (denial of annual leave time was "legally insufficient to constitute an adverse employment action"); Fridia v. Henderson, No. 99 Civ. 10749 (BSJ), 2000 WL 1772779
(S.D.N.Y. Nov. 30, 2000) (finding allegations of excessive work, denials of requests for leave with pay, and poor treatment by supervisors were not materially adverse employment actions because plaintiff could not demonstrate that any of these allegations had an attendant negative result); Lee, 2001 WL 34031217, at *16 ("being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments . . . do not rise to the level of adverse employment actions . . . because they [do] not have a material impact on the terms and conditions of Plaintiff's employment." (quoting Katz v. Beth Israel Med. Ctr., No. 95 Civ. 7183 (AGS), 2001 WL 11064, at *14 (S.D.N.Y. Jan. 4, 2001))). As such, Title VII claims based on these allegations are dismissed.
f. Retaliation
Title VII makes it unlawful for an employer to discriminate against an employee "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must establish that (1) she was engaged in a protected activity; (2) the employer was aware of that activity; (3) an employment action adverse to the plaintiff occurred; and (4) there existed a causal connection between the protected activity and the adverse employment action. See Holtz, 258 F.3d at 79.
The same standard is applied to retaliation claims under the NYSHRL. See Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312-13 (2004) (applying same standard for Title VII and NYSHRL retaliation claims). The elements of retaliation under the NYCHRL differ only in "that the plaintiff need not prove any `adverse' employment action; instead, he must prove that something happened `that would be reasonably likely to deter a person from engaging in protected activity.'" Jimenez v. City of New York, 605 F.Supp.2d 485, 528 (S.D.N.Y. 2009) (quoting NYCHRL § 8-107(7)). Applying this standard to the case at bar, the outcome is the same as that under Title VII.
For an employment action to qualify as retaliation, it must be "materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (quotation marks and citation omitted). This standard is somewhat broader than the adverse employment action standard utilized in Title VII discrimination cases. See id. at 67.
The McDonnell Douglas burden shifting analysis used in Title VII discrimination claims also applies to retaliation claims brought pursuant to Title VII. Terry, 336 F.3d at 141. If the plaintiff establishes a prima facie case, the burden shifts to defendants to articulate a legitimate, non-retaliatory reason for the adverse employment action. Once they do so, the burden shifts to the plaintiff to establish the retaliation was a substantial reason for the adverse employment action, "whether or not it was the sole cause." Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
Gutierrez claims he was retaliated against when he received unfair punishment for his April 7, 2007 violation of NYPD policy by using a NYPD vehicle without authorization. Shortly thereafter, he was put on "modified assignment," transferred to Bronx Central Booking for over two years, and was docked vacation days. Because the modified assignment and transfer made Gutierrez ineligible for promotion, these actions rise to the level of adverse employment actions in the context of retaliation. See Terry, 336 F.3d at 143-48 (adverse employment actions included internal transfer; loss of vehicle privileges accorded other employees; suspension of firearms privileges; shunning and disparagement). That these events occurred so quickly after the OEEO complaint was filed is sufficient to establish causation for the purposes of a prima facie case. Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) ("Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.").
While Defendants urge Gutierrez received no punishment until 2009, Defense Exhibit III states he was placed on modified duty and reassigned almost immediately on April 9, 2007. Barnett Decl. Ex. III, at 6.
Defendants assert the punishment was not excessive. As reflected in the transcript of the mitigation hearing, Gutierrez received a higher than average punishment because he drove a long distance, he used the car for a social outing, and he used the car without permission for over six hours, keeping it late into the night and only returning it when he was caught by a superior officer. See Barnett Decl. Ex. III. However, Gutierrez offers evidence, albeit limited, that he and other officers in the 52nd Precinct had previously used vehicles without authorization without punishment. Cronin Decl. Ex. F, at 68-70 (deposition of Defendant Moroney). It is not clear from the record who initiated Gutierrez's status modification and reassignment. In any case, there is a material issue of fact as to whether any Defendant played a role in the modification and transfer and if they did so in retaliation for Gutierrez's protected complaint. The motion to dismiss this claim is denied.
Plaintiffs Rosado and Flores assert they were retaliated against when they were placed in the Integrity Log for having improperly "closed cases" when "virtually everyone else in the squad had improperly `closed cases' but no one else was placed in the `Integrity Log.'" Pl. Opp. 29. Assuming Plaintiffs can establish that this was an adverse employment action, Plaintiffs do not provide sufficient evidence to support an inference of retaliation. First, the Integrity Log contains notations regarding case management by Rosado and Flores prior to their complaints to the OEEO. See Barnett Decl. Ex. JJJ; Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) ("Where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise."). There is no evidence that these citations changed or increased in frequency following the protected activity. Furthermore, Plaintiffs do not offer support for their claim that other employees were not written up regarding inappropriate case closing. The Integrity Log documents violations by numerous other detectives alongside those of Flores and Rosado. See Barnett Decl. Ex. JJJ. Plaintiffs' allegations are insufficient to overcome summary judgment with respect to this retaliation claim by Rosado and Flores.
Plaintiff Rosado states in his deposition that he was told by another Lieutenant that Defendants Rooney and Moroney were "looking to hurt" him. Cronin Decl. Ex. B, at 79. Although this statement would suggest retaliatory intent, it is inadmissible hearsay, and Plaintiff presented no sworn statement from the declarant. Thus the statement is insufficient to raise a genuine issue of fact. See Fed.R.Civ.P. 56(e) ("A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated."); Patterson, 375 F.3d at 219 ("[A]n affidavit's hearsay assertion that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial.").
Next, Plaintiff Canela alleges he was retaliated against when he was required to "catch" an inordinate number of cases and was transferred out of the squad when he was unable to close these cases. Canela provides no evidence that he caught substantially more cases than other detectives; in fact, the Operational Activity Statistics for the Precinct demonstrate he did not. See Ex. PPP. Nor does he offer support for his allegation that his transfer had any adverse employment effect, particularly given that the transfer lasted only one hour. See Barnett Decl. Ex. RRR. While the standard in retaliation claims is low, Canela provides virtually no support for his claim that these actions had adverse consequences. As such, he does not establish a prima facie claim for retaliation.
Finally, Plaintiffs Rosado, Canela, and Flores assert they were retaliated against when they were required to attend training classes while white officers were not and when their arrests were reassigned, both of which reduced their ability to work overtime. Defendants assert that these claims are not adverse employment actions as a matter of law. As to the training classes, Plaintiffs do not allege how many classes they were required to attend, how much time they spent in the classes, or how the classes affected their ability to earn overtime. Nor do they provide any evidence that white detectives were not required to attend the classes. Because Plaintiffs cannot state a prima facie case, the retaliation claim based on the required training classes is dismissed.
With regard to the reassignment of arrests, given the more lenient standard for retaliation claims and the alleged impact on Plaintiffs' pay potential, the Court accepts Plaintiffs' allegations as sufficiently adverse. To the extent they address the case reassignments, Defendants claim they were trying to prevent Plaintiffs from going over their overtime quotas. However, the record shows that multiple white detectives to whom the cases were allegedly reassigned had similar levels of overtime. See Barnett Decl. Ex. LL. While Plaintiffs present very little evidence demonstrating which cases were reassigned and when, viewing the evidence in their favor, a genuine issue of material fact exists as to whether retaliation played a role in the reassignments, and the motion to dismiss this claim is denied.
g. Hostile Work Environment
A hostile work environment is created "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)). To establish a prima facie hostile work environment claim under Title VII, a plaintiff must demonstrate (1) a defendant's conduct was objectively severe or pervasive so as to create an environment that a reasonable person would find hostile and abusive, (2) that he subjectively perceived the environment to be hostile or abusive, and (3) defendants created said
environment because of a plaintiff's protected status. Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citing Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001)).
The same standard is applied to NYSHRL claims. See Demoret v. Zegarelli, 451 F.3d 140, 152 (2d Cir. 2006) (standard of liability for hostile work environment claims under New York State Human Rights Law, N.Y. Exec. Law § 296, is same as for federal claims). The standard under the NYCHRL is broader, as it does not require that conduct be "severe" or "pervasive" to constitute a hostile work environment. See Williams, 872 N.Y.S.2d at 40; Kumaga, 2010 WL 1444513, at *14 (applying broader standard but still finding petty, slight, or trivial inconveniences are not actionable). Because the hostile work environment claims are permitted to go forward under Title VII, they also go forward under the NYSHRL and NYSHRL.
Among the factors to consider when determining whether an environment is sufficiently hostile are "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." Harris, 510 U.S. at 23. "While a mild, isolated incident does not make a work environment hostile, the test is whether `the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.'" Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (quoting Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997)). "The environment need not be unendurable or intolerable. Nor must the victim's psychological well-being be damaged." Terry, 336 F.3d at 148 (internal quotation marks and citations omitted). "[T]he fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious cases." Whidbee, 223 F.3d at 70 (quoting Torres, 116 F.3d at 631). Where reasonable jurors could disagree as to whether alleged incidents would have adversely altered the working conditions of a reasonable employee, the issue of whether a hostile work environment existed may not properly be decided as a matter of law. Patterson, 375 F.3d at 227.
In support of the hostile work environment claim, Plaintiffs cite to the same allegations of discrimination already discussed in this decision, including denial of investigative overtime, excessive disciplinary actions, failure to promote, unfavorable work assignments such as required trainings, reassignment of arrests, denial of time off, denial of transfer requests, and denial of the opportunity to "sleep over" and get overtime. Furthermore, they list a variety of acts allegedly committed by Defendant Moroney, including that he deflated their evaluations, posted a sign reading "Help Wanted No Irish Need Apply," transferred out minority officers and transferred in white officers, put a shamrock screensaver on Canela's computer, imposed a more strict dress code for Plaintiffs than for white officers, took no action on Plaintiffs' transfer requests, and that he made multiple statements Plaintiffs interpreted as harassing or threatening.
Defendants claim the conduct is not sufficiently severe to create a hostile work environment because "there are no allegations or evidence in the record that plaintiffs could not do their jobs." Def. Mem. Supp. Mot. Dismiss 45. However, Plaintiffs allege the actions prevented them from closing cases, accruing overtime, and ultimately from receiving promotions. While this Court has determined that Plaintiffs lack sufficient evidence to overcome summary judgment for Title VII discrimination claims based on many of these allegations viewed individually, taken together these actions were "sufficiently continuous and concerted to have altered the conditions of [Plaintiffs'] working environment." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002); see also Terry, 336 F.3d at 148-49 (plaintiff made out hostile work environment claim where plaintiff was transferred to multiple units, denied privileges, and supervisor instructed co-workers not to speak to plaintiff; conduct was not severe but was pervasive). As discussed supra, issues of fact remain at least with regard to the assignment of overtime and the reassignment of arrests. Furthermore, issues of fact remain regarding
Defendant Moroney's intent in statements he made in the presence of the Plaintiffs, and the extent of differential treatment among white and minority detectives. See Terry, 336 F.3d at 139 (holding in age discrimination case that "weight to be given these comments [regarding plaintiff's age] is a matter for the jury, which could infer that age was a factor in promotion decisions"); Patterson, 375 F.3d at 229-230 (where plaintiff alleged defendant refused to speak to him and always saluted white officers but never returned a salute from plaintiff, "whether the alleged conduct occurred and whether, in light of the totality of the circumstances, it was sufficiently humiliating to alter the conditions of [plaintiff's] employment are questions to be answered by a factfinder"). Interpreting the facts in the light most favorable to the Plaintiffs, as this Court must, Plaintiffs adequately allege a hostile work environment claim. The motion to dismiss this claim is denied.
For example, with regard to the dress code, Plaintiffs cite incidents during which they witnessed minority detectives reprimanded with regard to goatees and ties while white detectives, also present, were not. Plaitniffs also provide a photograph showing white detectives wearing goatees. See Cronin Decl. Ex. P. Defendants provide evidence in response that Moroney instructed four detectives, two Hispanic, one white, and one black about their facial hair. See Barnett Decl. Ex. JJJ. These discrepancies are better resolved by a jury.
h. Section 1981 and 1983 Claims
Most of the substantive standards that apply to claims of discriminatory conduct and retaliation in violation of Title VII also apply to claims in violation of § 1981 and § 1983. Patterson, 375 F.3d at 226-27. "Likewise, most of the standards applicable to the conduct alleged to constitute hostile work environment in violation of Title VII are also applicable to [a plaintiff's] employment claims under § 1981 and his equal protection claims under § 1983." Patterson, 375 F.3d at 225. However, in Patterson v. County of Oneida, the Court of Appeals for the Second Circuit identified a number of differences between Title VII and § 1981 and § 1983. 375 F.3d at 225-26. First, claims under 42 U.S.C. § 1981 and § 1983 need not be asserted within the 300-day period applicable to Title VII claims. Id. at 225; see also supra. Second, where the defendant sued for discrimination is a municipality, or an individual sued in his official capacity, the plaintiff must show that the challenged acts were performed pursuant to a municipal policy or custom. Id. at 226 (citing Jett v. Dallas Indep. School Dist., 491 U.S. 701, 733-36 (1989) (§ 1981); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-94 (1978) (§ 1983)). Third, individuals may be held liable under § 1981 and § 1983 for certain types of discriminatory acts, including those giving rise to a hostile work environment. Id. (citing Whidbee, 223 F.3d at 75 (§ 1981); Hayut v. State Univ. of N.Y., 352 F.3d 733, 753-54 (2d Cir. 2003) (§ 1983)).
Patterson also notes that, in certain circumstances, a Title VII claim may be established through proof of a defendant's mere negligence, but that a plaintiff pursuing a claimed violation of § 1981 or denial of equal protection under § 1983 must show that the discrimination was intentional. Patterson, 375 F.3d at 226. Here, Plaintiffs' claim was not predicated on negligence but on intentional discrimination.
The claims adequately alleged against Defendants under Title VII include discrimination based on denial of overtime, retaliation based on disciplinary actions taken against Gutierrez and reassignment of Rosado, Flores, and Canela, and hostile work environment.
i. City of New York and Defendants Sued in Their Official Capacities
To show a policy, custom, or practice, the plaintiff need not identify an express rule or regulation. Patterson, 375 F.3d at 226 (citing Sorlucco v. N.Y. City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992)). A plaintiff may establish a policy or practice "by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers." Sorlucco, 971 F.2d at 871 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)). "However, before the actions of subordinate city employees can give rise to . . . liability, their discriminatory practice must be so manifest as to imply the constructive acquiescence of senior policy-making officials." Id.
Here, Plaintiffs do not provide admissible evidence from which a rational factfinder could find that discrimination against Hispanics in employment decisions or hostile actions against Hispanic detectives in the Precinct was so widespread as to permit an inference of policy or custom. Plaintiffs rely on a Consent Decree Settlement in a 2005 lawsuit involving discrimination against Hispanics by the NYPD, see Barnett Decl. Ex. LLLL, and Defendant Rooney's admission to having been sued in the past, see Cronin Decl. Ex. V. Yet, Plaintiffs do not point to any language in the Settlement that supports finding a policy of discrimination here. In fact, the Settlement expressly states that "nothing contained herein shall be deemed to constitute a policy or practice of the City of New York," which expressly denied "any and all liability arising out of Plaintiffs' allegations." Barnett Decl. Ex. LLLL, at 1, ¶ 40.
The majority of Plaintiffs' briefing on this issue is focused on discrimination in promoting Hispanic officers. Because the failure to promote claims have been dismissed, this information is not relevant.
Plaintiffs do not allege sufficient facts to demonstrate that the practices of denying overtime, retaliation, or the actions underlying their hostile work environment claim were pervasive. The only individuals alleged to participate in the policy are those named in this suit. See Patterson, 375 F.3d at 227 (finding allegations of policy conclusory where plaintiff could identify only two persons who made racially offensive comments to him). Because Plaintiffs fail to show a genuine issue to be tried as to the existence of a policy or custom, the § 1981 and § 1983 claims against the City of New York and the individual Defendants sued in their official capacities are dismissed.
ii. Defendants Sued in Their Individual Capacities
In order to make out a claim for individual liability under § 1981 and § 1983, "a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory
action." Whidbee, 223 F.3d at 75 (internal quotation marks omitted). Personal liability must be "predicated on the actor's personal involvement" in the claimed violation. Id.; Patterson, 375 F.3d at 229 (citing Back v. Hastings on Hudson Union Free School Dist., 365 F.3d at 122). "Personal involvement, within the meaning of this concept, includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure to take action upon receiving information that constitutional violations are occurring." Patterson, 375 F.3d at 229 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Rather than rebutting Plaintiffs' assertion that individual Defendants were personally involved, Defendants Kelly, Kennedy, Rooney, and Moroney claim they are entitled to qualified immunity. Qualified immunity shields government actors performing discretionary functions from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citing Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)). "Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 129 S.Ct. 808, 815 (2009). Here, Plaintiffs allege the individual Defendants acted knowingly in their discriminatory conduct, which would as such be objectively unreasonable. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity does not protect "those who knowingly violate the law"). Because a number of claims have survived summary judgment based on intentional conduct, Defendants may not avail themselves of qualified immunity.
i. Section 1985 Claims
In order to state a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff must show: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (citing Britt v. Garcia, 457 F.3d 264, 270 n. 4 (2d Cir. 2006)). A § 1985(3) "conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Cine SK8, Inc., 507 F.3d at 791 (quoting Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (internal quotation marks omitted)).
Although a conspiracy "need not be shown by proof of an explicit agreement," a plaintiff must demonstrate at least that "parties have a tacit understanding to carry out the prohibited conduct." Thomas, 165 F.3d at 146 (internal quotation marks omitted); Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003) (plaintiff "must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end") (quoting Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). A "complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Pinero v. Long Island State Veterans Home, 375 F. Supp. 2d 162, 169 (E.D.N.Y. 2005) (quoting Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999)). A conspiracy to violate Title VII cannot form the basis of a Section 1985(3) claim. See Great Am. Fed. Sav. Loan v. Novotny, 442 U.S. 366, 378 (1979).
Plaintiffs allege Defendants Kelly, Kennedy, Moroney, and Rooney "agreed together to implement, direct and/or participate in a program to deny Plaintiffs, and other minority officers similarly situated, promotions to Detective Second and First Grade solely because of their race, national origin and opposition to discrimination." Compl. 23. They provide no evidence of agreement between the Defendants to support a finding of conspiracy. That they worked for the same organization and followed the same alleged policy is insufficient. See Cine SK8, Inc., 507 F.3d at 792 (finding letter from board member citing discussions and "strong consensus" among board members insufficient evidence of conspiracy to survive summary judgment). Nor do Plaintiffs raise any argument on this matter or point to any facts supporting a conspiracy in their opposition papers. Because Plaintiffs' factual allegations do not support finding a conspiracy, their § 1985 claims are dismissed.
IV. Conclusion
For the reasons set forth herein, the Court denies Defendants' motion for summary judgment on Plaintiffs' Title VII, retaliation, and hostile work environment claims only to the extent noted above. Defendants' motion for summary judgment on Plaintiffs' § 1981 and § 1983 claims are granted with respect to Defendant City of New York and the individual Defendants sued in their official capacities and denied with respect to the Defendants sued in their individual capacities. Plaintiffs' § 1985 claims are dismissed as to all Defendants. All claims against the NYPD are dismissed.
The parties are to consult with each other concerning the future progress of this litigation. Should the parties find it useful, the Court will favorably entertain an agreed motion to refer the case to mediation or to pursue other forms of resolution. Alternatively, the parties are to advise the Court of when they will be prepared to proceed to trial.
SO ORDERED.
Dated: November 29, 2010 New York, NY