09-4318-cv
Hamilton v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2010
(Argued: September 28, 2010 Decided: December 3, 2010)
Docket No. 09-4318-cv
_______________________________
ESTATE OF PAULETTE HAMILTON , SUBHASH NAIK , GAMAL HANNA, and NIVINE ELSHAROUNY ,
Plaintiffs-Appellants,
v.
THE CITY OF NEW YORK and SCOTT O’NEILL,
Defendants-Appellees.
_________________________________________
Before: JACOBS, Chief Judge, WALKER and CABRANES, Circuit Judges.
Appeal from a September 21, 2009 judgment of the United States District Court for the
Southern District of New York (Denny Chin, Judge) granting summary judgment to defendants on
federal and state law claims relating to alleged instances of employment discrimination.
We affirm the judgment of the District Court in all respects, save for its dismissal of plaintiffs’
claims under New York Labor Law § 190 et seq. We conclude that the City of New York’s defense that
it is not covered by the relevant provisions of the New York Labor Law must be affirmatively pleaded
pursuant to Rule 8(c). Therefore, we vacate the District Court’s dismissal of plaintiffs’ New York
Labor Law claims, and remand for consideration of whether it would be appropriate to construe
defendants’ motion for summary judgment as a motion to amend the answer to assert an affirmative
defense for the first time.
1
BARRY D. HABERMAN , New City, NY, for Plaintiffs-Appellants.
RONALD E. STERNBERG , (Michael A. Cardozo, Corporation Counsel of
the City of New York, and Leonard Koerner and Christopher A.
Seacord, of counsel), New York, NY, for Defendants-Appellees.
PER CURIAM :
Plaintiffs-appellants Gamal Hanna, Nivine Elsharouny, Subhash Naik, and the Estate of
Paulette Hamilton1 appeal from a judgment of the United States District Court for the Southern
District of New York (Denny Chin, Judge), dismissing, with prejudice, their complaint against
defendants-appellees Scott O’Neill and the City of New York. Plaintiffs brought suit for employment
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.;
under 42 U.S.C. § 1983 (“§ 1983”); under the New York State Human Rights Law, N.Y. Exec. Law §
290 et seq.; and under the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq.
Additionally, plaintiffs advanced claims that they (1) suffered retaliation for filing discrimination claims,
(2) were deprived of due process of law in violation of § 1983, and (3) were denied wages that were
owed to them in violation of New York Labor Law § 190 et seq. (“Labor Law” claims).
The District Court held that plaintiffs had abandoned their due process and retaliation claims.
Furthermore, the Court granted summary judgment to defendants on the state and federal
discrimination claims as well as the Labor Law claims. On appeal, plaintiffs challenge all of these
rulings, excepting the retaliation claim, as well as certain evidentiary decisions made by the court below.
We affirm the District Court in all respects save for its dismissal of plaintiffs’ Labor Law claims; we
remand for consideration of whether it would be appropriate to construe defendants’ motion for
1
Hamilton died on February 1, 2007. Her estate was substituted as a plaintiff by the District Court.
2
summary judgment as a motion to amend the answer to assert an affirmative defense for the first time.
BACKGROUND
Plaintiffs are current or former employees of the Controlled Substance Analysis Section of the
New York City Police Department Crime Laboratory (“crime lab”). All four were born abroad: Hanna
and Elsharouny in Egypt, Naik in India, and Hamilton in Jamaica. Almost all employees in the crime
lab are “Criminalists,” ranging in assignment levels from I-IV. Generally, all supervisory duties are
supposed to be performed by Criminalists IV.
Despite being only Criminalists III, plaintiffs all were given supervisory responsibilities for a
substantial period of time. Although these increased responsibilities were not accompanied by
improved salary, benefits, or formal title, plaintiffs were referred to as Criminalists III-Supervisor
within the crime lab.
In 2005, two new Criminalist IV positions were created within the Controlled Substance
section. Defendant O’Neill, who was the immediate supervisor of that section, was tasked with filling
these vacancies. In accordance with the custom and practice of the crime lab, no general
announcement was made to advertise these vacancies and O’Neill did not conduct any interviews. In
his affidavit, O’Neill claimed that his top choice for the job was Vito Casella—an Italian-born
Criminalist III-Supervisor—but that Casella had turned him down. Instead, O’Neill hired Matthew
Johnson and Thomas Hickey, the only two white, American-born males of the seven individuals then
holding the (informal, but apparently well established) designation of Criminalist III-Supervisor, despite
the fact that all four plaintiffs had considerably longer tenures as employees of the crime lab.
Following the ascension of Johnson and Hickey, there remained only five people holding the
position of Criminalist III-Supervisor in the crime lab—the four plaintiffs and Casella. With Johnson
and Hickey now filling formal supervisory roles, O’Neill concluded that it was appropriate and feasible
3
to eliminate the position of Criminalist III-Supervisor altogether so that all supervisory functions would
be performed by Criminalists IV only, as had been originally intended. Plaintiffs were informed that
they were being relieved of their supervisory functions, but their salary, benefits, and formal title
remained unchanged.
Shortly after these events, plaintiffs filed a complaint with the New York Police Department’s
Office of Equal Employment Opportunity (“OEEO”) claiming that they had been denied promotions
on the basis of their national origin. This claim was investigated and ultimately determined to be
without merit due to the fact that Johnson and Hickey were found to have had generally better
performance evaluations than each of the plaintiffs. In 2006, plaintiffs filed charges of employment
discrimination with the Equal Employment Opportunity Commission (“EEOC”).2 Contrary to the
OEEO, the EEOC found at least that there was reason to believe a violation had occurred.
Plaintiffs filed a complaint in New York state court in August 2006. The case was removed to
federal court, and plaintiffs twice amended their complaint, most recently in October 2007. While this
case was before the District Court, another Criminalist IV position became available in the Controlled
Substances section of the crime lab. By this time, O’Neill, who had since been promoted to be Deputy
Director of the crime lab, had decided to advertise vacancies internally and conduct formal interviews
of all applicants. Plaintiffs Hanna, Elsharouny, and Naik all applied for this position, but none of them
scored well enough during the initial interview to advance to the second round of interviews.
Thereafter, a white, American-born male was selected for this promotion, as well.
Defendants moved for summary judgment on all claims in November 2008, and the District
Court dismissed plaintiffs’ complaint on that basis in September 2009. This appeal followed.
2
Plaintiffs now claimed that they had been discriminated against on the basis of their race and national origin.
Hamilton and Elsharouny claimed that they were discriminated against on the basis of sex as well.
4
DISCUSSION
A. Evidentiary issues
Before considering the merits of plaintiffs’ claims, we must first consider what evidence was
properly before the District Court at the summary judgment stage. Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010) (“It is well established that, in determining the appropriateness of a grant of summary
judgment, [this court], like the district court in awarding summary judgment, may rely only on
admissible evidence.” (quotation marks omitted)). Here, plaintiffs argue that the District Court
erroneously excluded various items of evidence. Each of these challenges is without merit.
First, we hold that the District Court correctly excluded plaintiffs’ proffer of O’Neill’s
statement that, following the challenged promotions, “managerial staff determined that involving more
individuals in the promotion process might help prevent unsuccessful candidates from feeling as if they
were unfairly passed over for promotion.” Such a statement plainly runs afoul of Rule 407 of the
Federal Rules of Evidence, which generally prohibits a plaintiff from introducing evidence of
subsequent remedial measures taken by the defendant in order to establish the defendant’s underlying
liability. See Lust v. Sealy, Inc., 383 F.3d 580, 585 (7th Cir. 2004) (observing that there is no reason to
limit application of this rule to nonintentional torts).3
Next, plaintiffs complain that they should have been permitted to introduce a statement given
to the OEEO by Peter Pizzola, O’Neill’s boss, in which Pizzola asserted that O’Neill had told him
Casella was not “supervisory material.” This hearsay statement was rightly excluded from evidence as it
3
We note that our analysis might have been different in a disparate-impact claim under Title VII. In that
situation, a plaintiff may be required to establish that there was an equally valid and less discriminatory method of
evaluation that the defendant-employer refused to use. See 42 U.S.C. § 2000e-2(k)(1)(A). Because Rule 407 explicitly
permits evidence of subsequent remedial measures to be admitted to prove the feasibility of precautionary practices,
O’Neill’s challenged statement might have been admissible in a disparate-impact context. See Adams v. City of Chicago, 469
F.3d 609, 612 (7th Cir. 2006).
5
is not subject to any of the hearsay exceptions cited by plaintiffs.4
Plaintiffs also challenge the District Court’s refusal to consider the EEOC’s determinations that
all four plaintiffs had been discriminated against based on national origin. The case law of our circuit is
clear that the decision to consider EEOC findings is left to the “sound discretion” of the district court.
Paolitto v. Brown E.&C., Inc., 151 F.3d 60, 65 (2d Cir. 1998). In its opinion, the District Court carefully
explained its decision to exclude the EEOC’s determinations on the grounds that these findings (a)
were conclusory, and (b) failed to address the defendants’ strongest evidence regarding plaintiffs’
inferior performance evaluations. Defendants are unable to demonstrate any error on the part of the
District Court, much less an “abuse of discretion.” See generally Sims v. Blot, 534 F.3d 117, 132 (2d Cir.
2008) (“A district court has abuse[d] its discretion if it based its ruling on an erroneous view of the law
or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located
within the range of permissible decisions.” (quotation marks omitted)).
Finally, in separate affidavits, three of the plaintiffs allege that O’Neill told them that he wanted
to “change the face” of the Criminalist III-Supervisor position. The District Court declined to
consider this evidence because, in their prior deposition testimony, all three plaintiffs answered in the
negative when asked if O’Neill, or any other employee of the New York Police Department, had ever
made any comments to them that could be interpreted as discriminatory. Given this direct
contradiction, the District Court was right not to give weight to the later affidavits. Mack v. United
States, 814 F.2d 120, 124 (2d Cir. 1987) (“It is well settled in this circuit that a party’s affidavit which
contradicts his own prior deposition testimony should be disregarded on a motion for summary
4
In their reply brief, plaintiffs for the first time argue that Pizzola’s statement is not hearsay at all since it was
made concerning a matter within the scope of Pizzola’s employment. See Fed. R. Evid. 801(d)(2)(D). Because this
argument was not advanced before the District Court or in plaintiffs’ opening brief, we consider it forfeited. Presidential
Gardens Assocs. v. United States, 175 F.3d 132, 141 (2d Cir. 1999).
6
judgment.”).
B. Discrimination claims
We turn now to the discrimination claims at the heart of plaintiffs’ case and appeal. The
District Court granted summary judgment to defendants on plaintiffs’ claims that they had been
discriminated against in violation of Title VII and § 1983; as well as in violation of the New York State
Human Rights Law, N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law, N.Y.
City Admin. Code § 8-101 et seq. “We review a district court’s grant of summary judgment de novo,
drawing all inferences in favor of the nonmoving party.” Ruiz v. County of Rockland, 609 F.3d 486, 491
(2d Cir. 2010).
“Our consideration of claims brought under the state and city human rights laws parallels the
analysis used in Title VII claims.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000).
Plaintiffs assert that they were discriminated against in two distinct ways: first, they were passed over
for promotion to the Criminalist IV positions; second, they were “demoted” to Criminalist III after
having held the title of Criminalist III-Supervisor. We consider the failure to promote and demotion
claims in turn.
(1) Failure to promote
In order to establish a prima facie case of a discriminatory failure to promote, a Title VII
plaintiff ordinarily must demonstrate that: “(1) she is a member of a protected class; (2) she applied and
was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the
position; and (4) the position remained open and the employer continued to seek applicants having the
plaintiff’s qualifications.” Petrosino v. Bell Atl., 385 F.3d 210, 226 (2d Cir. 2004) (referencing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)) (quotation marks omitted). For sake of the argument,
7
we assume, as did the District Court, that plaintiffs made a prima facie showing of discrimination on
the basis of race, national origin, and sex.
Under the familiar burden-shifting framework set forth by the Supreme Court in McDonnell
Douglas, after a prima facie instance of discrimination has been identified, the burden shifts to the
employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
McDonnell Douglas, 411 U.S. at 802. Defendants point to numerous, legitimate factors supporting their
promotion decisions. Regarding the two promotions made in 2005, defendants note that the
candidates who were promoted to Criminalist IV positions had uniformly better performance
evaluations than the plaintiffs. In addition, O’Neill’s first choice for promotion was Vito Casella, who
was born in Italy, thus casting significant doubt on plaintiffs’ implicit claims that O’Neill was
prejudiced against foreign-born individuals.5
As for the subsequent promotion made in 2007,6 defendants state that the plaintiffs did not fare
well during the relevant interviews. Defendants also point out that O’Neill himself was born outside
the United States (he was born in Scotland), and furthermore, prior to 2005, all seven Criminalists IV
working in the Controlled Substances section had been born outside of the United States.
Because the defendants have proffered a valid reason for their promotion determinations, “the
question in adjudicating the defendants’ motion for summary judgment becomes simply whether the
evidence in plaintiff[s’] favor, when viewed in the light most favorable to the plaintiff[s], is sufficient to
sustain a reasonable finding that [the adverse employment decision] was motivated at least in part
5
Plaintiffs vigorously contest this point on the basis of Pizzola’s inadmissible hearsay testimony about O’Neill’s
comment to him that Casella was not “supervisory material.” Inasmuch as this statement was deemed inadmissible and
that Pizzola later testified during his deposition that he had “misspoken,” the District Court properly accepted as true
O’Neill’s statement that Casella was his first choice for promotion. Indeed, Casella himself acknowledged that O’Neill
had offered him the promotion.
6
Plaintiff Naik was an unsuccessful applicant for two other promotions in other sections of the crime lab.
There too, defendants claim that he was passed over on the basis of his poor performance in the first-round interview.
8
by . . . discrimination.” Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 114 (2d Cir. 2007). Plaintiffs are
simply unable to meet this burden. For example, they focus on the supposed dispute over whether
Casella was really offered a Criminalist IV position. But even assuming (which we do not, see note 5,
ante) that Casella was not O’Neill’s first choice, defendants’ basic argument—that plaintiffs were not as
qualified as those selected for promotion—remains unchallenged.7 Plaintiffs point to no evidence
indicating that the relevant performance evaluations were biased or manifestly inaccurate. Accordingly,
we agree with the District Court that plaintiffs’ discrimination claims based on their failure to receive
promotions cannot survive summary judgment.
(2) Demotion
Plaintiffs also argue that they were improperly discriminated against when they were allegedly
demoted in 2005. Specifically, following the promotion of Hickey and Johnson, the remaining five
Criminalist III-Supervisors—the four plaintiffs and Casella—were relieved of their supervisory
responsibilities. We again assume, for purposes of our McDonnell Douglas analysis, that this represents a
prima facie case of discrimination.
O’Neill justified these “demotions” by observing that after Hickey and Johnson had been
promoted to Criminalist IV, the crime lab no longer needed Criminalist IIIs to perform supervisory
duties—a supervisory arrangement that O’Neill deemed to be “inappropriate.” Defendants also note
that Casella had his supervisory duties revoked as well, and he had been O’Neill’s first choice for
promotion—in other words, the plaintiffs were not specifically targeted.
Once again, plaintiffs have failed to identify sufficient evidence in the record to sustain a
7
Plaintiffs also argue that they had more experience than the candidates promoted ahead of them. Experience,
however, is not a substitute for performance, and defendants had every right to place greater emphasis on the
performance evaluations of the candidates for promotion. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d
Cir. 2001) (“‘Our role is to prevent unlawful hiring practices, not to act as a ‘super personnel department’ that second
guesses employers’ business judgments.’” (quoting Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165
F.3d 1321, 1330 (10th Cir. 1999))).
9
reasonable finding that this adverse employment action was motivated, at least in part, by improper
discrimination. The plaintiffs make the indisputable point that, following the demotions, there were
fewer supervisors in the crime lab, but they put forward no evidence suggesting that additional
supervisors were needed after Hickey and Johnson assumed their positions as Criminalists IV.
Plaintiffs also argue that the secrecy surrounding the decision to eliminate the Criminalist III-
Supervisor position is indicative of defendants’ discriminatory intent. Such a claim, without more, is far
too speculative to allow plaintiffs to survive summary judgment.8
C. Labor Law claims
Plaintiffs argue that the District Court improperly granted defendants summary judgment on
plaintiffs’ claim that they were not properly compensated for the work that they had performed on
behalf of the City. See N.Y. Labor Law § 190 et seq. The District Court ruled for defendants because
New York Labor Law § 190(3) provides that “[t]he term ‘employer’ shall not include a governmental
agency,” and the New York Police Department clearly is a governmental agency. Plaintiffs do not
contest this point; rather, they maintain that this defense was unavailable to defendants because it was
not affirmatively pleaded under Rule 8(c) of the Federal Rules of Civil Procedure.
Rule 8(c) identifies nineteen separate affirmative defenses, but this list is not exhaustive, and
courts have struggled with identifying precisely what else constitutes an “avoidance or affirmative
defense.” See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (3d ed.
2004). Under our circuit precedent, when a defendant seeks to raise a point about something that “is
not an element which the plaintiff must establish to make out a prima facie showing of liability,” he
must plead it as an affirmative defense. See U.S. ex rel. Maritime Admin. v. Cont’l Ill. Nat’l Bank & Trust
8
Having affirmed the District Court’s dismissal of plaintiffs’ discrimination claims, we must also affirm the
dismissal of plaintiffs’ derivative § 1983 claims against O’Neill and the City of New York.
10
Co., 889 F.2d 1248, 1253 (2d Cir. 1989). In New York, “[i]t is a well-settled rule . . . that a party has a
right to sue on any cause of action which he holds, and any statutory exception to that right must be
distinctly expressed.” Saxe v. Peck, 124 N.Y.S. 14, 15 (App. Div. 3d Dep’t 1910). The question then is
whether the language in § 190(3) constitutes a “statutory exception”: plaintiffs maintain that it does,
while defendants insist that the statute itself is inapplicable to all government entities. We think that
plaintiffs have the better of this argument. Although not formally styled as an “exception,” § 190(3)
undoubtedly functions as one by carving out governmental agencies from the reach of the statute.
While a plaintiff making a Labor Law claim surely has the burden to demonstrate that the defendant is
an “employer,” we are not convinced that the plaintiff must also, in all cases, affirmatively allege that
the defendant in question is not a “governmental agency.”
Our holding is consistent with federal case law interpreting similar provisions in Title VII and
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. For instance, Title VII states:
The term ‘employee’ means an individual employed by an employer, except that the term
‘employee’ shall not include any person elected to public office in any State or political
subdivision of any State by the qualified voters thereof, or any person chosen by such officer to
be on such officer’s personal staff, or an appointee on the policy making level or an immediate
adviser with respect to the exercise of the constitutional or legal powers of the office. The
exemption set forth in the preceding sentence shall not include employees subject to the civil
service laws of a State government, governmental agency or political subdivision. With respect
to employment in a foreign country, such term includes an individual who is a citizen of the
United States.
42 U.S.C. § 2000e(f). Personal staff of a public officer are expressly excluded from Title VII’s
definition of “employee,” yet the Fifth Circuit has held that this “exception” must be affirmatively
pleaded under Rule 8(c). See Oden v. Oktibbeha County, 246 F.3d 458, 466-67 (5th Cir. 2001). Courts
have reached identical conclusions in cases involving similar “exemptions” included in the FLSA. See,
e.g., Brennan v. Valley Towing Co., 515 F.2d 100, 104 (9th Cir. 1975). Accordingly, we hold that the
defense that § 190(3) shields defendants from liability must be affirmatively pleaded pursuant to Rule
11
8(c).
Defendants’ failure in this regard is far from fatal, however. “[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). Plaintiffs have not identified
any reason why, on remand, the District Court should not allow defendants to raise their clear
exemption as an affirmative defense and we cannot think of any. Nevertheless, if such a reason exists,
plaintiffs deserve an opportunity to present their case to the District Court as it inevitably considers
whether it would be appropriate to construe defendants’ motion for summary judgment as a motion to
amend their answer.
CONCLUSION
Accordingly, the judgment of the District Court is AFFIRMED in all respects, save for the
District Court’s dismissal of plaintiffs’ claims under New York Labor Law § 190 et seq., which is
VACATED.
The cause is REMANDED to the District Court for proceedings consistent with this opinion.
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