DERAVIN III v. KERIK

KIMBA WOOD, District Judge

I. INTRODUCTION

In this action, brought pursuant to Title VII of the Civil Rights Act of 1964, the defendants have made a motion for summary judgment pursuant to Fed.R.Civ.P. 56. The plaintiff contends that because of the plethora and "complexity of the disputed issues which permeate this case," the defendants' motion must be denied. The motion is addressed below.

II. BACKGROUND

Eric H. Deravin, III, ("Deravin"), who was formerly employed by the city of New York, contends that during the period January 1998 through May 2000, he was denied promotion to the position deputy warden, New York City Department of Correction ("DOC"), on five occasions when he applied to be promoted (January 1998, May 1998, September 1998, January 1999 and September 1999), because of his race and in retaliation for having defended himself successfully against a charge of sexual harassment that had been filed with the New York State Division of Human Rights ("SDHR"), against him and DOC, by a correction officer whom Deravin had disciplined previously. The correction officer who filed the sexual harassment charge against Deravin was Jeanette Pinero ("Pinero"), who, beginning in or about the Fall of 1995 and continuing through in or about January 1997, dated defendant Bernard Kerik ("Kerik"). Kerik served as correction commissioner from January 1998 through August 21, 2000. Prior thereto, from January 1995 through January 1998, Kerik served as first deputy correction commissioner. Pinero filed her charge of sexual harassment with SDHR in April 1995, after filing a similar complaint with DOC's Office of Equal Employment Opportunity. DOC's Office of Equal Employment Opportunity investigated Pinero's complaint. That office determined that no evidence of misconduct or sexual harassment by Deravin existed. SDHR also investigated Pinero's allegations of sexual harassment. It made a finding of "no probable cause" and dismissed Pinero's complaint.

Deravin was promoted from assistant deputy warden to deputy warden on May 2, 2000, based upon his September 1999 promotion application.

Deravin alleges that unidentified "sources" informed him that the Kerik/Pinero relationship existed after April 2000. Deravin also maintains, on the strength of a 2004 newspaper article concerning another woman with whom Kerik was romantically linked, that the Kerik/Pinero relationship continued into 2001. Both Kerik and Pinero testified at their respective depositions that their romantic relationship terminated in or about the latter part of 1996 or by January 1997. Kerik also testified, during his deposition that, after his romantic relationship with Pinero terminated, they remained friends and, on occasion, until approximately the end of December 2001, had lunch or dinner together.

Deravin contends that Kerik was aware of Pinero's claim that Deravin harassed her sexually and that Kerik retaliated against him by refusing to promote him from assistant deputy warden to deputy warden until May 2000, although Deravin was more qualified, based on academic achievement and military service, than candidates for promotion to deputy warden whom Kerik promoted between 1998 and May 2000. At all times relevant to this motion, Deravin held a Ph.D. degree and had the rank of major with the United States Army Reserve forces.

When a vacancy exists for the position DOC deputy warden, all assistant deputy wardens who have served in that rank for at least one year are eligible to apply for consideration for promotion. Deputy warden vacancies are announced in an agency order issued via teletype to DOC commanding officers. The commanding officers are responsible for ensuring that each assistant deputy warden, including those who are on leave from the agency, receives a copy of any deputy warden vacancy announcement.

An assistant deputy warden wishing to be considered for promotion to the position deputy warden is required to complete a "Promotional Candidate Information Sheet," which must be accompanied by the candidate's resume and a statement by the candidate of the reason(s) he or she wishes to be considered for promotion. Candidates are also asked to provide proof of any academic credentials by submitting a certified transcript from any school attended. As part of the application process, each candidate's commanding officer is required to provide DOC's personnel director with his or her recommendation concerning the candidate's request to be promoted, along with a written analysis of each candidate's qualifications, including the candidate's history of work assignments, an updated performance evaluation report on the candidate and an updated and completed employee performance service report on the candidate. Once these materials are assembled into folders, and forwarded to the agency's personnel director, the names of eligible candidates for promotion to deputy warden are provided to, inter alia, the agency's Equal Employment Opportunity Office, its internal affairs unit, its inspector general's office, and its health management division for review.

The candidates for promotion are vetted by an agency promotion board. The promotion board consists of DOC's first deputy commissioner and its bureau chiefs. The names and promotion folders of candidates who survive the vetting process are presented to the chief of department, who determines which candidates' names and promotion folders will be forwarded to the DOC commissioner for scheduled interviews. The commissioner of correction has discretion to promote assistant deputy wardens to fill vacancies in the position deputy warden. Kerik testified, during his deposition, that when he served as DOC commissioner, he interviewed each candidate whose promotion folder was forwarded to him from the DOC chief of department's office.

In deciding whom to promote to deputy warden, Kerik indicated that he would typically consider a number of factors, among them the following: seniority; the candidate's background; any prior complaints lodged against the candidate; the candidate's work history; the candidate's attendance record; and any awards that the candidate might have received. Kerik also testified that he would consider a candidate's leadership skills, analytical skills, understanding of the rules, regulations, policies and procedures of the agency and the candidate's understanding of the mission of the agency. In that regard, Kerik stated that he would consider whether a candidate was aware of the newer programs and initiatives that the agency was pursuing. Kerik explained that if a candidate's background included educational achievements, military service, recommendations and letters of commendation, he would also consider those matters as he weighed whom to promote.

However, Kerik stressed that no single factor was determinative of whether a candidate for promotion to the position deputy warden would be promoted by him. Kerik testified that after he reviewed a candidate's promotion folder, that is, the candidate's request for promotion and the documentation complied by the candidate's commanding officer and forwarded to him by the chief of department for review, and interviewed the candidate, he would determine whom to promote to the position deputy warden. According to Kerik, he would decide, after considering all the factors noted above, which candidate was "best for the agency" because he believed that the candidate who was "best for the agency" was the "most qualified for the position."

During the period when Deravin was applying for promotion to deputy warden, Kerik promoted 36 persons to that position. Of the 36 persons promoted, 15 are identified in the record as black, 15 are identified as white and six are identified as Hispanic. During his deposition, Kerik was asked to review all the available promotion folders for each deputy warden candidate promoted during the period 1998 through the date when Deravin was promoted, and to explain why he decided to promote the candidate and determined not to promote Deravin until May 2000. In some instances, Kerik did not need to review the relevant promotion folder because he recalled the successful candidate. Kerik's reasons for remembering a particular candidate were either that he had worked directly with the candidate, or that he had an opportunity to observe the candidate's job performance because the candidate had been assigned to work in the executive offices of the agency, or that the candidate had distinguished himself or herself in a particular assignment in the jail facilities that the agency managed. In other instances, after reviewing a candidate's promotion folder at the deposition, Kerit indicated that the relevant promotion was made after he had considered all of the factors noted above and the needs of the agency at that point in time. Kerik noted that, throughout the time period when Deravin was applying for promotion to deputy warden, he never considered the plaintiff's application "side-by-side with the application of any other candidate." Kerik testified that each candidate for promotion was considered by him independently of the other candidates, by weighing the various factors cited previously in this writing.

The parties disagree over the racial identity of one person who was promoted by Kerik to the position deputy warden. The defendants maintain that he is black and the plaintiff contends the person is white. The agency documentation submitted in connection with the instant motion identifies the person as black, except in one instance. Since the bulk of the documentary evidence before the Court from the employing agency identifies the person as black, the Court finds that it would be reasonable to infer that he is black. Therefore, the Court has adopted that racial identification in setting forth the racial and ethnic profiles of the persons promoted to deputy warden by Kerik during the applicable period.

Kerik stated that he did not recall each of the promotion interviews that he had with the plaintiff. However, three remained prominent in his mind. Kerik recalled that in or about November 1997, while he was first deputy correction commissioner, an anonymous letter was received at his office from one of the plaintiff's subordinates. The anonymous letter recounted that the plaintiff, while serving as the "tour commander" at one of the jail facilities, used offensive language when addressing an assemblage of correction officers. Kerik testified that he sent the anonymous letter to the agency bureau chief responsible for the area where the plaintiff was then assigned to work and also sent a copy to the warden in charge of the facility where the plaintiff was assigned. It was Kerik's view, based upon the anonymous letter, that the plaintiff needed "counseling" or "sensitivity training" because the anonymous letter suggested "unprofessional behavior on the plaintiff's part." Kerik determined that a formal investigation was not warranted because it might lead to the lodging of disciplinary charges against the plaintiff and he did not think that would be an appropriate outcome. He explained that "when you want someone to work for you, you want to inspire [him]. You don't want to embarrass [him], humiliate [him or] [degrade him]. And sometimes you don't need to reprimand, or investigate, or chastise the tour commander. You can give [him] a warning. You can give [him] sensitivity training, talk to [him] about [his] behavior." Kerik explained, further, "had I investigated, if it was investigated and if they found a number of people that substantiated the investigation, there could have been formal charges. And I'm pretty convinced based on this and other things I had learned from the facility that they would have probably substantiated the complaint. That would hurt his record. I wasn't trying to hurt his record. I was trying to make sure that they talked to him about his behavior."

Thereafter, on or about January 9, 1998, the plaintiff met with Kerik in connection with the first of his several applications for promotion to the position deputy warden. After reviewing the plaintiff's promotion folder, and mindful of the substance of the anonymous letter, as well as other things he had heard about the "insulting," "humiliating" and "degrading" manner in which the plaintiff spoke to corrections personnel with whom he worked, which Kerik felt was not good for the morale of the agency and did not inspire staff, Kerik determined not to promote the plaintiff at that time.

Kerik also recalled interviewing the plaintiff on or about September 9, 1998, in connection with another application he had made for promotion to the position deputy warden. This interview was remarkable for Kerik because the plaintiff appeared at the interview out of uniform. Kerik noted at that time that the plaintiff's performance evaluation rating had dropped from an earlier rating of "outstanding minus" to a rating of "very good plus." The plaintiff was not promoted at that time. Later, Deravin sent a letter to Kerik acknowledging that he had attended the promotion interview out of uniform, explaining the circumstances that occasioned that gaffe and apologizing for it.

The third promotion interview with Deravin that Kerik recalled occurred in or about May 2000. Kerik recounted that by the time of that interview, Deravin's performance evaluation rating had improved to the best performance evaluation rating he had achieved since January 1998, when he was first interviewed for possible promotion to the position deputy warden. The interview that Kerik had with Deravin in or about May 2000 followed the April 4, 2000 charge of discrimination that Deravin had lodged with the United States Equal Employment Opportunity Commission ("EEOC"), out of which the instant action emerged. Kerik testified that he did not believe that he was aware of the EEOC charge of discrimination that the plaintiff had lodged at the time of the above-referenced interview. The record evidence contains a copy of a May 17, 2000 memorandum to Kerik from the DOC deputy commissioner for equal employment opportunity, advising Kerik that, on April 4, 2000, Deravin named Kerik as a respondent in his EEOC charge of discrimination. May 17, 2000, is 15 days after Kerik promoted Deravin to deputy warden. However, the plaintiff recalls that Kerik asked him at the interview whether each of them needed his attorney present while the interview took place. Kerik denied making such a statement to the plaintiff.

Prior to the date of this interview, the plaintiff's father, who had also worked at DOC, had sent a letter dated April 12, 2000, to the Office of the Mayor of the city of New York, complaining about his son's inability to secure a promotion to deputy warden, although his son had excellent military and educational credentials. It was Deravin's understanding, based upon conversations with DOC union officials and correction personnel that, in or about May 2000, Kerik was prepared to promote him to the position deputy warden but wanted: (a) Deravin's father's letter to the Office of the Mayor rescinded; and (b) Deravin to withdraw his EEOC charge of discrimination. However, when Deravin met with Kerik for his promotion interview in or about May 2000, he recalled that Kerik did not mention the letter his father sent to the Office of the Mayor. Moreover, Deravin testified that on each occasion when he had a promotion interview with Kerik, Kerik neither made any comment about the plaintiff's race nor any comment about Pinero. Deravin also testified that Kerik did not make any derogatory comments to him during the promotion interviews. Deravin explained that his promotion interviews with Kerik typically lasted about five minutes, during which time he responded to hypothetical questions Kerik posed to him to ascertain how Deravin might respond to a particular situation(s) described in the hypothetical question.

Deravin maintains that on the five occasions beginning in January 1998, when he was denied promotion to deputy warden, he was "more qualified" than the candidates selected by Kerik to fill deputy warden vacancies. According to the plaintiff, each deputy warden vacancy notice to which he responded noted that 60 college credits and military service were among the minimum qualifications needed for promotion to that position. Deravin testified at his deposition that, if a candidate for promotion to deputy warden did not have 60 college credits, the candidate could substitute military service for the "requisite" college credits. However, a review of the pertinent deputy warden vacancy notices and the applicable DOC directive that describes the procedures for applying to fill a deputy warden vacancy, all of which are part of the record submitted in connection with the instant motion, does not support the plaintiff's claim concerning the minimum qualifications a candidate needed to possess in order to apply for promotion to the position deputy warden. The record evidence establishes that the only qualification for consideration for promotion to deputy warden is service in the position assistant deputy warden for one year. While DOC did solicit information from deputy warden candidates about their academic achievements, if any, neither earned college credits nor military service was a requirement for promotion from assistant deputy warden to deputy warden.

Deravin contends that since he had achieved the rank of major in the United States Army Reserve and had obtained a Ph.D. degree by the time he applied for promotion to deputy warden, characteristics that he maintains distinguished him from all the other candidates for that promotion, Kerik's failure to promote him sooner than the date on which he was promoted, May 2, 2000, was race-based and was an act of retaliation for Deravin's disciplining Pinero and defending himself against her allegation of sexual harassment. In support of his contention, the plaintiff alleges that Peter Meringolo ("Meringolo"), the president of the correction captains' union, informed him in 1996, when Deravin was being considered for a promotion from correction captain to assistant deputy warden, that Kerik, who was then DOC first deputy commissioner, told Meringolo that he would not approve the plaintiff for promotion to that rank because of Deravin's treatment of Pinero. Deravin contends that Meringolo's exchange with him was later confirmed in a conversation that Deravin tape-recorded.

In 1996, it was a responsibility of the DOC first deputy commissioner to review the promotion folder of each candidate who was being considered for promotion to the position assistant deputy warden and, thereafter, if he deemed it appropriate, to approve that candidate's application for promotion. However, during a deposition taken of Meringolo in connection with this action, Meringolo denied that Kerik ever told him that Deravin would not be promoted because of Deravin's treatment of Pinero. Deravin did not confront Meringolo with the above-noted tape-recorded conversation or a purported transcript of the audiotape at his deposition. Furthermore, Deravin was promoted from correction captain to assistant deputy warden in August 1996.

Deravin also alleged that Sidney Schwartzbaum ("Schwartzbaum"), the head of the deputy wardens' union, told him that Kerik would not promote him because of the plaintiff's involvement with Pinero. However, during his deposition. Deravin retreated from that allegation and indicated that, because of the passage of time, his recollection of what, if anything, Schwartzbaum had said to him about Kerik's not wanting to promote him because of Deravin's treatment of Pinero "might not be accurate." In addition, Schwartzbaum testified that he lobbied Kerik on behalf of members of his union who were candidates for promotion. However, he felt that candidates other than Deravin merited promotion ahead of Deravin and, consequently, he lobbied Kerik more intensively for those other candidates.

III. DISCUSSION

Standard of Review for Summary Judgment

Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).

The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). The moving party's "burden will be satisfied if [it] can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986).

In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id. at 256, 2514. Summary judgment should be granted only if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).

Statute of Limitations

In a state such as New York, which maintains an administrative agency to receive and adjudicate claims of unlawful discrimination, a person alleging employment discrimination under Title VII is obligated to file a charge of discrimination with the EEOC within 300 days after the alleged discriminatory act. See Pikulin v. City Univ. of New York, 176 F.3d 598, 599 (2d Cir. 1999); Miller v. Int'l Tele. Tele. Corp., 755 F.2d 20, 23 (2d Cir. 1985). In like manner, a claim of retaliation must also be filed with the EEOC no later than 300 days after an alleged retaliatory act occurs. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-114, 122 S. Ct. 2061, 2072-2073 (2002).

The defendants contend that the plaintiff's claims of race discrimination and retaliation that are premised on unsuccessful attempts by Deravin to secure a promotion to deputy warden in or about January 1998, May 1998, September 1998 and January 1999, that is, at any time prior to June 9, 1999, are time-barred because Deravin filed his complaint of discrimination with the EEOC on April 4, 2000, and June 9, 1999, is 300 days prior to that date. Deravin maintains that he was the victim of an "ongoing policy of retaliation" and, as a consequence, the 300-day limitation period that would normally govern the prosecution of claims of discrimination and retaliation in a case such as this may be delayed until the last discriminatory act performed in furtherance of the unlawful "policy and practice" was committed.

"Under the continuing violation exception to the Title VII limitation period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993). However, in this case, the plaintiff's reliance on the "continuing violation theory," described above, is misplaced. Under Title VII, discrete acts of discrimination such as a termination, a failure to promote, a denial of transfer or a refusal to hire constitute separate actionable unlawful employment practices. See Nat'l R.R. Passenger Corp., 536 U.S. at 114, 122 S. Ct. at 2073. Consequently, a plaintiff like Deravin, who alleges discriminatory failure to promote and retaliation, "can only file a charge [of discrimination] to cover discrete acts that `occurred' within the appropriate time period." Id., at 114, 2073. "[Title VII] `precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period,' even if other acts of discrimination occurred within the statutory time period."Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004). In the circumstance of this case, the plaintiff may not recover damages for any instance when he was not promoted from assistant deputy warden to deputy warden occurring 300 days prior to April 4, 2000; as noted above, June 9, 1999, is 300 days prior to April 4, 2000.

Based on the record evidence, Deravin was an unsuccessful deputy warden promotion candidate on two occasions after June 1999: July 1999 and January 2000. In July 1999, two assistant deputy wardens, who are not members of the plaintiff's protected class, were promoted to deputy warden; they are Richard Pagan ("Pagan") and Gerard Parsons ("Parsons"). In January 2000, seven assistant deputy wardens, who are not members of the plaintiff's protected class, were promoted to deputy warden; they are Peter Curcio ("Curcio"), Edward Gavin ("Gavin"), Ercole Pagano ("Pagano"), Gregory Smith ("Smith"), Thomas Tsotsoros ("Tsotsoros"), Frank Squillante ("Squillante") and Vincent Seminerio ("Seminerio").

Before reaching the substance of Deravin's Title VII claims for discriminatory failure to promote and retaliation, it is appropriate to discuss two grounds under which the defendants assert that they are entitled to summary judgment: (i) the inability of the plaintiff to ascribe personal liability to Kerik for the violations of Title VII alleged in this action; and (ii) the inability of the plaintiff to maintain this action against DOC.

The defendants contend that "it is black letter law in this Circuit that only the employer and not the individual supervisors is the proper defendant in a Title VII case." In the memorandum of law Deravin submitted in opposition to the instant motion, he appears to concede this point. However, Deravin maintains that the defendants were required by Fed.R.Civ.P. 8(c) to raise their defense to the action: that Kerik cannot be held personally liable to the plaintiff, when they answered the complaint. The plaintiff contends this is so because Kerik's inability to be found liable for a Title VII violation is an affirmative defense or "constitutes an avoidance," as that phrase is used in the Rule. According to Deravin, the defendants' failure to comply with Fed.R.Civ.P. 8(c), by pleading the defense in their answer, constitutes a waiver of the ability to assert the defense in their motion for summary judgment.

The defendants are correct when they assert that in this judicial circuit "individuals are not subject to liability under Title VII." Patterson, 375 F.3d at 221 (quoting Wrighten v. Glowski, 232 F.3d 119, 120 [2d Cir. 2000]); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998). Consequently, Kerik cannot be found liable to Deravin for any damages he seeks to recover in this action.

While it is true that Fed.R.Civ.P. 8(c) requires that certain defenses be pleaded in a defendant's answer in order to put the plaintiff on notice of the defense and thereby prevent surprise or unfair prejudice in the litigation, see Blonder-Tongue Labs, Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S. Ct. 1434, 1453-1454 (1971), in a circumstance where a defendant has failed to plead timely a matter constituting an avoidance or an affirmative defense, "a district court may still entertain affirmative defenses at the summary judgment stage in the absence of undue prejudice to the plaintiff, bad faith or dilatory motive on the part of the defendant, futility, or undue delay of the proceedings." Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003). To entertain such a defense at the summary judgment stage of a litigation, a district court must construe the motion for summary judgment also as a motion to amend under Fed.R.Civ.P. 15(a).See Block v. First Blood Assoc., 988 F.2d 344, 350 (2d Cir. 1993).

Fed.R.Civ.P. 15(a) informs that leave to amend pleadings "shall be freely given [by a court] when justice so requires." Deravin urges that the "defendants . . . be prevented from raising [an] affirmative [defense] at this late date as such would be highly prejudicial to the plaintiff." Deravin does not explain why or how he would be prejudiced. In any event, the progression of time, without more, is not a reason that warrants a court preventing a party from amending a pleading. See State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); Rachman Bag Co. v. Liberty Mutual Ins. Co., 46 F.3d 230, 234-5 (2d Cir. 1995). Furthermore, no prejudice would be visited upon the plaintiff since, as a matter of law, he cannot obtain the relief he seeks against Kerik. See Tomka, supra. Therefore, the Court finds that it would be reasonable and appropriate to construe the defendants' motion for summary judgment also as a Fed.R.Civ.P. 15(a) motion to amend.

The defendants also contend that the plaintiff cannot maintain this action against DOC because it is not an entity that is subject to suit. Here again, the plaintiff counters that the defendants failed to raise this defense in their answer and, as a result, should not be permitted to do so at this late juncture in the litigation, for the reasons already discussed immediately above.

In its most pertinent part, the New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." New York City Chapter Ch. 17 § 396.

One of the named defendants, DOC is an agency of the city of New York. "Governmental agencies have only those powers which are conferred expressly or by necessary implication; power is not to be inferred, and the principle of strict construction should be applied in interpreting statutory grants of power." Yonkers Comm'n on Human Rights v. City of Yonkers, 654 F. Supp. 544, 551 (S.D.N.Y. 1987) (citations omitted). Accordingly, perforce of the above-referenced provision of the New York City Charter, DOC, an agency of the city of New York, lacks the capacity to be sued.See Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y. 1997);Bailey v. New York City Police Dep't, 910 F. Supp. 116, 117 (E.D.N.Y. 1996); Stovall v. City of New York, 1988 WL 249389, at *4 (S.D.N.Y. 1988); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992); Martin v. City of New York, 627 F. Supp. 892, 894 n. 2 (E.D.N.Y. 1985). Accordingly, Deravin, who commenced this action pro se but has been represented by counsel since in or about 2003, may not maintain this action against DOC; he should have brought this action against his former employer, the city of New York.

Inasmuch as the Court is mindful that parties may be dropped or added to an action at any stage of a litigation, see Fed.R.Civ.P. 21, and since the Court is cognizant that, upon issuing the instant Report, and prior to dismissal of the action against DOC, it is likely that a new and costly round of motion practice would likely ensue focused on whether amending the complaint to name Deravin's former employer is appropriate, the Court finds that it would be in keeping with the admonishment of Fed.R.Civ.P. 1, that the Federal Rules of Civil Procedure be construed and administered "to secure the just, speedy, and inexpensive determination of every action," as well as prudent, to add the city of New York as a defendant and, in so doing, declare the complaint constructively amended, see Rome v. Verizon Communications Inc., 362 F.3d 168, 181 (2d Cir. 2004), so that the Title VII claims are deemed to have been made against Deravin's former employer, the city of New York. Since all discovery has been completed, this will enable the Court to reach the merits of the Title VII claims now, and avoid additional, protracted and unnecessary litigation.

Title VII Claim A. Race Discrimination

Title VII makes it "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Claims of discrimination brought under Title VII are analyzed in accordance with the three-part evidentiary framework established inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under that framework, the plaintiff must present a prima facie case of discrimination. If the plaintiff meets this burden, a presumption of unlawful discrimination arises and the burden shifts to the defendant, who must adduce evidence that an adverse employment action was taken for a legitimate, nondiscriminatory reason. This burden is merely one of production, not persuasion. If the defendant states a legitimate, nondiscriminatory reason, the presumption of discrimination falls out of the case and the plaintiff must prove, by a preponderance of the evidence, that the reason offered by the defendant was merely a pretext for discrimination. To do so, the plaintiff must show that the stated reason was false and that discrimination was the real reason for the employer's action. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508-520, 113 S. Ct. 2742, 2747-54 (1993); Cagle v. Unisys Corp., No. 99 Civ. 9575, 2003 WL 21939705, at *4 (S.D.N.Y. Aug. 13, 2003).

In order to establish a prima facie case of discriminatory failure to promote in violation of Title VII, Deravin must show that: (i) he was a member of a protected class; (ii) he was qualified for the position for which he applied; (iii) he was denied the position; and (iv) the denial occurred under circumstances giving rise to an inference of discrimination on a basis forbidden by Title VII. See Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000). The burden of establishing a prima facie case is de minimis. See Abdu-Brisson v. Delta Airlines, 239 F.3d 456, 467 (2d Cir. 2001). Furthermore, at the prima facie stage of a Title VII analysis, an inference of discrimination may be drawn from the mere fact that a similarly situated person who is not in the plaintiff's protected class was treated more favorably than the plaintiff. See Shumway v. United Parcel Service, Inc., 118 F.3d 60, 63 (2d Cir. 1997); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999).

In the case at bar, the following is undisputed: (1) Deravin is a member of a protected class; (2) he was qualified for the position for which he made application, deputy warden, because he had served in the title assistant deputy warden for a period of one year prior to applying for a promotion; and (3) he was not promoted to deputy warden on two occasions after June 9, 1999, while others who are not members of his protected class were promoted to that position. Since an inference of discrimination may be drawn from the fact that similarly situated persons, that is, assistant deputy wardens who had been in that rank for at least one year who are not in Deravin's protected class, were treated more favorably than he, in that they were promoted to deputy warden while he was not on two occasions after June 9, 1999, specifically, in July 1999 and January 2000, Deravin has satisfied his burden of establishing a prima facie case of race discrimination in violation of Title VII.

Under the McDonnell Douglas rubric, once a plaintiff presents a prima facie case of discrimination, it is incumbent upon a defendant to produce evidence that an adverse employment action was taken for a legitimate nondiscriminatory reason. In July 1999, two assistant deputy wardens were promoted to the position deputy warden based on applications for promotion that had been submitted in January 1999. The two candidates who were promoted were not in Deravin's protected class. They were Parsons, who is white, and Pagan, who is Hispanic. Both Parsons and Pagan had more seniority in the title assistant deputy warden than Deravin at the time in July 1999 when Kerik determined to promote them to the position deputy warden. Parsons and Pagan each had received an overall rating of outstanding on his respective performance evaluation; Deravin had not. Parsons and Pagan had also received letters of recommendation in connection with their respective January 1999 applications for promotion to deputy warden. Deravin's January 1999 application for promotion did not contain a similar letter of recommendation.

In addition, Kerik testified that he knew Pagan well. Kerik explained that he worked with Pagan when Pagan served as director of investigations in DOC's Internal Affairs Division and, as a result of working with Pagan, Kerik considered him to be an "outstanding" DOC officer. Furthermore, Kerik stated that, in considering whom to promote to deputy warden at that time, he was still mindful of Deravin's unprofessional behavior with his subordinates, as recounted in the anonymous letter he had received in his position as first deputy correction commissioner, and Deravin's appearance at an earlier promotion interview out of uniform. After considering the various factors that, he testified, were weighed when he was called upon to make promotions to the position deputy warden, Kerik determined that, in July 1999, it was not the "plaintiff's time" to receive a promotion to that position and that promoting Parsons and Pagan to deputy warden was "best for the agency."

Considerations of seniority, performance and recommendations are all legitimate nondiscriminatory reasons for an employer to fail to promote an employee to a position for which the employee is otherwise qualified. Kerik testified that these were among the matters he considered when he exercised his discretion in making deputy warden promotions in July 1999. Since Kerik presented legitimate nondiscriminatory reasons for the promotion decisions that were made in July 1999, the presumption of discrimination established by the plaintiff in setting forth his prima facie case of race discrimination falls out the case. Deravin must prove, by a preponderance of the evidence, that the reasons offered by his employer are merely a pretext for discrimination.See St. Mary's Honor Ctr., 509 U.S. at 507, 113 S. Ct. at 2747.

Deravin contends that the reason proffered by the defendants: Kerik's exercise of his discretion, as DOC commissioner, to select for promotion to deputy warden the person(s) he felt was best suited for promotion because that person would be best for the agency, is a pretext for "hiring non-African American individuals over Eric Deravin." Deravin's contention overlooks the record evidence that establishes that Kerik, in determining to exercise his discretion, as DOC commissioner, to appoint two others to the position deputy warden in July 1999, considered, among other things, Deravin's seniority, his inappropriate behavior with his subordinates, his failure to attend a promotion interview in proper uniform, his overall performance evaluation rating and the absence from his January 1999 promotion folder of any recommendation supporting his request to be promoted to the rank of deputy warden. Deravin has not offered any evidence that establishes that the reasons proffered by Kerik for determining not to promote Deravin in July 1999 were false and that race discrimination was the real reason for Kerik's determination not to promote him.

In a Title VII action, a plaintiff's conclusory allegations of discrimination, absent any "concrete particulars," is insufficient to defeat a motion for summary judgment. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Therefore, the Court finds that Deravin has not met his burden with respect to the claim of racial discrimination as it relates to his failure to secure a promotion to the position deputy warden in July 1999.

The record evidence establishes that in January 2000, 11 persons were promoted from assistant deputy warden to deputy warden. Deravin, who was considered for promotion, was not among the successful candidates. Of the 11 successful candidates, seven were outside Deravin's protected class. Six of the persons promoted were white: Curcio; Gavin; Smith; Tsotsoros; Squillante; and Seminerio. The remaining candidate who was promoted was Pagano, who is Hispanic. These persons were promoted in January 2000, based upon applications for promotion they made in September 1999.

Curcio, who was among the successful candidates for promotion, had approximately three more months in the rank assistant deputy warden than Deravin had. Kerik testified that he believed that Curcio was a good leader, that he was well liked by the corrections officers who, in Kerik's estimation, "would follow him anywhere." Curcio had twice received training at the Federal Law Enforcement Training Center, once in 1991 and again in 1995. According to Kerik, Curcio had an outstanding performance evaluation rating and had been highly recommended for promotion by the warden at the facility where Curcio was assigned to work. Kerik recalled that Curcio's name had come to his attention prior to the interview that preceded immediately Curcio's promotion to deputy warden in January 2000, because of Curcio's leadership abilities and skills.

While Curcio's promotion folder revealed that he had been: (a) the subject of five use of force investigations, without having charges filed against him; (b) charged with failure to safeguard a firearm, for which DOC declined to prosecute him on disciplinary charges; and (c) penalized with the loss of 30 days' pay, for a use of force incident that occurred in 1995, Kerik explained that these matters were not an impediment to his being promoted to deputy warden. Kerik testified that all of these matters would have been reviewed by the DOC chief of department before Curcio's promotion folder was forwarded to him for consideration of Curcio's application for promotion to deputy warden. Furthermore, Kerik testified that no single factor would determine whether a candidate for promotion would be successful in that endeavor. Kerik stated that he did not compare Curcio's application for promotion against the promotion application made by Deravin. Rather, he considered each candidate for promotion separately and, in his estimation, Curcio "was the best person for the job at the time."

Kerik was questioned about the promotion of Gavin. Kerik noted that he knew Gavin well because Gavin had served as Kerik's executive assistant. Kerik described Gavin as "a troubleshooter for the agency. If there was a problem, he would be dispatched to work on that problem both in operational areas, in program areas and in specialized areas . . . he was relentless, tireless." Kerik recalled that Gavin "spent an enormous amount of his own time at work. His day didn't end in eight hours." Kerik's experience working with Gavin, his knowledge of his industriousness and his consideration of all of the factors he indicated were typically considered by him when making promotion decisions prompted him to promote Gavin to deputy warden in January 2000. At the time Gavin was promoted to deputy warden, he and Deravin had been serving in the rank assistant deputy warden for an identical period of time.

Squillante, who, like Gavin, had served in the rank assistant deputy warden for the same amount of time as Deravin, secured his promotion to deputy warden in part, according to Kerik, because, when Kerik visited the jail facility where Squillante was assigned, Kerik observed that Squillante had created a number of innovative programs. In addition, Kerik testified that Squillante "was a phenomenal leader." He recalled that "people in the facility would really listen to him; he was good with the officers." The record before the Court is barren of any evidence establishing that Deravin also had created innovative programs at any jail facility where he was assigned to work.

Deravin contends that Squillante's promotion to the position deputy warden, in January 2000, marked the second occasion on which Squillante secured such a promotion. According to Deravin, Squillante had been demoted from the rank deputy warden previously. Therefore, Deravin maintains, he was not qualified for that promotion and Deravin, based upon his education, military background and record of perfect attendance at work, was more qualified for the promotion. However, no evidence is in the record that establishes either that a correction official who has been demoted is disqualified from receiving a subsequent promotion or that a once demoted correction official is not able, through exceptional performance, to merit a subsequent promotion.

Squillante's promotion folder, upon which his January 2000 promotion rested, was not made available to Kerik during his deposition. Therefore, when responding to questions concerning his determination to promote Squillante, Kerik relied solely upon his recollection of Squillante and his recollection of being impressed by the programs Squillante had created at the jail facility Kerik had visited.

No promotion folder for Seminerio was available for Kerik to examine during his deposition. However, Kerik testified that he remembered Seminerio's promotion interview vividly. Kerik recalled that at that point where the interview would typically have terminated, Seminerio asked for permission to explain in detail what Seminerio believed he could do for the agency if he were promoted to deputy warden. Kerik recalled that Seminerio gave a "heart impassioned plea to really be considered" for promotion to deputy warden. Kerik was very impressed by what he heard from Seminerio and determined to promote him. As Deravin recalled, his promotion interviews were unremarkable. Typically, they lasted approximately five minutes, during which time he simply responded to hypothetical questions that were put to him by Kerik.

The record evidence contains conflicting information concerning when Seminerio was promoted to deputy warden. Some documents indicate that he received that promotion in March 1998. However, his name appears on an agency-generated roster of persons who were promoted to deputy warden in January 2000. The parties have not explained the discrepancy.

Kerik testified that he was acquainted with Pagano. Kerik recalled that for approximately 18 months prior to his promotion to deputy warden in January 2000, Pagano had been functioning as the maintenance director for the entire agency. As such, he was serving in "a position for a deputy warden in command, which is two ranks above the position [assistant deputy warden that] he held." Kerik explained further that the maintenance services unit is a specialized one within the agency; it is responsible for routine maintenance, construction and demolition at DOC facilities. As Kerik explained, "[Pagano] is the guy that basically kept the department running." As a result of Pagano's performance, in a position two levels above the assistant deputy warden position that he held, Kerik concluded that it was appropriate to promote him.

At the time of his promotion, Pagano had five weeks less seniority in the rank assistant deputy warden than Deravin had. Nothing in the record before the Court establishes that Deravin ever managed a specialized unit within DOC or that he served in a position designated for a person holding a rank two levels above the rank that Deravin held, that is, assistant deputy warden.

Two of the candidates who were promoted to the position deputy warden in January 2000, Smith and Tsotsoros, were not discussed with Kerik during his deposition. Therefore, the reasons Kerik determined to promote them in January 2000 are not before the Court. However, the record evidence does establish that Smith had eight years more seniority in the rank assistant deputy warden than Deravin had at the time of Smith's promotion to deputy warden and that Tsotsoros had three years more seniority in the rank assistant deputy warden than Deravin had at the time that Kerik determined to promote Tsotsoros to deputy warden. As noted above, seniority is among the factors that Kerik testified he considered when determining whom to promote from assistant deputy warden to deputy warden.

With respect to Smith, Deravin contends that a review of Smith's promotion folder revealed that in 1995, he absented himself from work on 132 days, and that in 1996, he absented himself from work on 23 days. During that same period, and throughout his tenure with DOC, Deravin maintained perfect attendance. In any event, given that Kerik testified that no one factor among the factors he considered before determining whom to promote to deputy warden would be determinative of the candidate's success in applying for promotion and, further, inasmuch as Kerik was not examined about Smith's promotion during his deposition, it is impossible to know what impact, if any, Smith's absences during periods four to five years prior to his promotion to deputy warden had on Kerik's decision. One thing is certain, Smith's historical attendance record did not prevent him from being a successful candidate for promotion to deputy warden.

The McDonnell Douglas shifting burdens, applicable in a Title VII action, have been described earlier in this writing and will not be repeated here. Kerik provided nondiscriminatory reasons for the decisions he made to promote to the position deputy warden in January 2000 persons outside Deravin's protected class while electing not to promote Deravin at that time. Deravin has not offered any evidence that establishes that the reasons proffered by Kerik were false and that discrimination was the real reason for Kerik's determination to promote persons outside Deravin's protected class in January 2000 and not promote Deravin. Therefore, the Court finds that Deravin has not met his burden with respect to the claim of racial discrimination, as it relates to his failure to be selected to fill five of the deputy warden promotion vacancies that were filled by Kerik's selection in January 2000 of persons outside of Deravin's protected class.

However, since Deravin established a prima facie case of racial discrimination and thereby created a presumption that his employer discriminated against him unlawfully, the McDonnell Douglas rubric placed upon the defendants the burden of producing a legitimate nondiscriminatory explanation to rebut the presumption of discrimination respecting the determination by Kerik to promote Smith and Tsotsoros in January 2000 and his concomitant determination not to promote Deravin at that time. The record before the Court does not contain any information concerning the reasons Kerik acted as he did on the applications of Smith and Tsotsoros in January 2000. Therefore, the Court finds that the defendants have not rebutted the presumption of racial discrimination that Deravin's proof of a prima facie case of discrimination established, by producing evidence showing that the adverse employment action, that is, the failure to promote Deravin to fill either of two deputy warden vacancies in January 2000, was taken "for a legitimate, nondiscriminatory reason." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981). Accordingly, summary judgment is not warranted.

B. Retaliation

To establish a prima facie case of retaliation in a Title VII action, a plaintiff must show four things: (1) that he was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that his employer was aware of that activity; (3) that he suffered an adverse employment action; and (4) that a causal connection between the protected activity and the adverse action existed. See Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 79 (2d Cir. 2001). As has been discussed earlier in this writing, discrete acts of discrimination and retaliation, such as a failure to promote, are time barred in instances where they occur outside the applicable filing period, even when they relate to acts of discrimination and retaliation for which charges are filed timely. See Nat'l R.R. Passenger Corp., supra. Therefore, only allegations of retaliation pertinent to promotions that Deravin did not receive in July 1999 and January 2000 are properly before the Court for analysis.

In the case at bar, previous litigation has established that in defending himself at the SDHR against Pinero's allegation of sexual harassment, Deravin engaged in an activity protected under Title VII. See Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003). The defendants do not contend that they were either unaware of Deravin's participation in that protected activity or that his failure to obtain a promotion either in July 1999 or January 2000, while persons outside his protected class did obtain promotions, is other than an adverse employment action. Instead, the defendants maintain that Deravin has not established that a causal connection existed between his protected activity and the adverse action taken by his employer. Stated differently, the defendants contend that Deravin has not established that a retaliatory motive played a part in the adverse employment action regardless of whether such a motive was the sole cause for the adverse employment action. See Sumner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990).

A Title VII plaintiff may establish the causation prong of his prima facie case of retaliation "either: (i) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (ii) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).

Pinero filed a complaint of sexual harassment against Deravin with DOC's Equal Employment Opportunity Office in October 1994 and made a similar complaint of discrimination against Deravin and DOC with SDHR in April 1995. Deravin defended himself against both allegations in 1996. The first relevant adverse employment action taken against him occurred in July 1999, when Kerik determined not to promote him to deputy warden. A gap of three years, 1996 through 1999, between Deravin's participation in protected activity and the occurrence of an adverse employment action, that is, his failure to be selected for promotion to deputy warden, while others outside of his protected class who, like he, were promotion-eligible, obtained promotions, is too great to find the requisite temporal proximity between the two events, which the Supreme Court has stated must be "very close."Clark Cty. School District v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001). Similarly, the four-year gap between Deravin's defense of himself against Pinero's sexual harassment allegation in 1996 and the determination by Kerik not to promote him in January 2000 does not provide a basis for a finding of temporal proximity such that it would be appropriate to conclude that circumstantial evidence exists that supports an inference of causation, required by the fourth prong of the prima facie case that Deravin must establish to proceed with his claim of retaliation.

Deravin alleges that there is direct evidence in the record from which the Court may find that a causal connection exists between his participation in protected activity and the adverse employment action he suffered. Deravin contends that the direct evidence is Meringolo's statement to him that, in 1996, Kerik told Meringolo that Deravin would not receive a promotion because of his discordant involvement with Pinero. However, the two participants in the alleged conversation, Kerik and Meringolo, testified at their respective depositions that Kerik never made the statement Deravin attributes to him. Furthermore, no evidence is in the record before the Court that demonstrates that Kerik attempted to thwart Deravin's 1996 promotion to assistant deputy warden, the promotion that Deravin was seeking at the time the statement is alleged to have been made. The record evidence suggests that the day after Meringolo and Kerik met in 1996, Deravin received the promotion to assistant deputy warden for which he had applied. The Court is mindful that Deravin alleges that he recorded a conversation he had with Meringolo during which Meringolo is alleged to have confirmed that Kerik made the statement attributed to him about Deravin's unlikely prospect of being promoted. Meringolo was not confronted with the audiotape of the conversation at his deposition. In addition, the audiotape of that conversation is not a part of the record evidence. In any event, even if the audiotape had been provided to the Court, it would be of little use because it is not competent evidence. A "transcript" of the audiotape was provided to the Court. However, the defendants contend that the "transcript" is not accurate and complete and, furthermore, it has never been authenticated. Based on the record evidence, the Court finds that Deravin has not produced direct evidence of a causal connection between his participation in protected activity and the adverse employment action he suffered. Accordingly, the Court finds further that Deravin has not satisfied his burden of establishing a prima facie case of retaliation under Title VII.

IV. RECOMMENDATION

For the reasons set forth above, the plaintiff's complaint should be constructively amended to name his former employer, the city of New York, as a defendant. The defendants' motion for summary judgment, should be denied as it relates to the plaintiff's allegation of race discrimination in connection with the January 2000 promotions to deputy warden that Smith and Tsotsoros received. In all other respects, the defendants' motion for summary judgment should be granted.

V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).