Baity v. Kralik
W. Terrell BAITY v. James F. KRALIK and County of Rockland
Attorneys
Michael H. Sussman, Esq., Sussman & Wakins, Goshen, NY, for Plaintiff., Eric Dranoff, Esq., Robert B. Weiss-man, Esq., Saretsky Katz Dranoff & Glass, L.L.P., New York, NY, for Defendants.
Full Opinion (html_with_citations)
ORDER
Plaintiff W. Terrell Baity (“Baity”), by his counsel, Michael H. Sussman, brings this Action against Defendants James Kra-lik (“Kralik”) and the County of Rockland (“Rockland County” or “the County”), alleging that Defendants discriminated against him on the basis of his race by terminating him from his position as a probationary corrections officer with the Rockland County Department of Corrections. Before the Court is Defendants’ Motion for Summary Judgment. (See Dkt. No. 26.) For the following reasons, Defendants Motion is Granted.
I. BACKGROUND
A. Plaintiffs Rule 56.1 Statement
“Local Civil Rule 56.1 calls for a summary judgment movant to submit ‘a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried,’ and for the opposing party to submit ‘a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.’ ” Johnson v. IAC/Interactive Corp., 2 F.Supp.3d 504, 507 (S.D.N.Y.2014) (quoting Local R. 56.1(a)-(b).) In responding to
Plaintiffs Response to Defendants’ Rule 56.1 Statement fails to comply with the spirit, if not the letter of the rule. (See PL’s Resp. to Defs.’ Rule 56.1 Statement (“PL’s 56.1 Resp.”) (Dkt. No. 35).) Many of Plaintiffs purported denials — and a number of his admissions — improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants’ asserted facts without specifically controverting those same facts. (See, e.g., PL’s 56.1 Resp. ¶¶ 32, 52, 56, 61, 75, 77, 78, 86, 88, 94, 95, 107, 108, 109, 115, 116, 130, 161, 162, 163, 169, 178, 179, 183, 191); see also Costello v. N.Y. State Nurses Ass’n, 783 F.Supp.2d 656, 661 n. 5 (S.D.N.Y.2011) (disregarding a plaintiffs responses to a defendant’s Rule 56.1 Statement where the plaintiff responded with conclusory assertions or legal arguments). Furthermore, a number of Plaintiffs purported denials quibble with Defendants’ phraseology, but do not address the factual substance asserted by Defendants. (See, e.g., PL’s 56.1 Resp. ¶¶ 29, 40, 52, 56, 58, 101, 103, 106.) In other instances, counsel neither admits nor denies a particular fact, but instead responds with equivocal statements such as: “Admit, but defendant omits the balance of plaintiffs testimony,” (PL’s 56.1 Resp. ¶ 75), “Admit, but note that she provided no counseling memorandum to plaintiff and never provided a copy of this document to the plaintiff,” (id. ¶ 86), “Deny. Plaintiff was interviewed one week before he commenced his employment and after he had passed his physical agility and psychological test and after he had been offered employ[ ]ment,” (id. ¶ 6 (in response to Defendants’ statement about the date of Plaintiffs interview and the individuals who conducted the interview)), or “Deny as stated,” (id. ¶ 29). Some of Plaintiffs 56.1 statement responses include citations to evidence in the record, (see, e.g., PL’s 56.1 Resp. ¶¶ 6, 29), however, responses that “do not point to any evidence in the record that may create a genuine issue of material fact[] do not function as denials, and will be deemed admissions of the stated fact.” Risco, 868 F.Supp.2d at 86 n. 2 (internal quotation marks omitted) (quoting Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 458 n. 1 (S.D.N.Y.2011); see also Costello, 783 F.Supp.2d at 661 n. 5 (disregarding the plaintiffs responses where plaintiff failed to specifically dispute defendant’s statements)); Buckman v. Calyon Sec., 817 F.Supp.2d 322, 328 n. 42 (S.D.N.Y.2011) (noting that “56.1 statements not explicitly denied by plaintiff are deemed
Plaintiffs counsel’s submissions related to the instant Motion fail to cure the deficiencies in Plaintiffs 56.1 Statement and instead impede the Court’s attempts to determine which, if any, material facts are in dispute. For example, Plaintiffs Memorandum in Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Mem.” (Dkt. No. 36)) contains no citations to the record, despite making a number of fact-based arguments. In addition, unlike the usual attorney affirmations, which merely attach copies of documents alleged to be relevant and admissible and identify those documents for the Court, Plaintiffs counsel submitted an affirmation that includes arguments and factual assertions. (See Aff. of Michael H. Sussman in Opp’n to Defs.’ Mot. (“Sussman Aff.”) (Dkt. No. 38).) This affidavit improperly attempts to introduce exhibits without any authentication, (see Sussman Aff. ¶ 5), and further contains argument about how the Court should interpret these exhibits, (id. ¶ 8 (“An ‘investment’ of $12,000 is not very significant as against a county budget of over $680,000,000.”)). See also Fed. R.Civ.P. 56(c)(4) (providing that an affidavit or declaration used to oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declar-ant is competent to testify on the matters stated). Accordingly, “[i]n resolving this motion, the Court has- relied only on the exhibits to the affirmation that contain admissible evidence, and has not considered the improper assertions and arguments contained in the affirmation, or the exhibits to the affirmation containing inadmissible evidence.” Risco, 868 F.Supp.2d at 86 n. 2 (citing Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983) (“An affidavit of the opposing party’s attorney which does not contain specific facts or is not based on first-hand knowledge is not entitled to any weight.”)); see also Little v. City of New York, 487 F.Supp.2d 426, 433 n. 2 (S.D.N.Y.2007) (“The law is clear that an attorney’s affirmation that is not based on personal knowledge of the relevant facts is to be accorded no weight on a motion for summary judgment.”).
Plaintiffs Affidavit also contains a surfeit of improper averments, including statements not based on Plaintiffs personal knowledge and conclusory statements that are nothing more than speculation. (See, e.g., Pl.’s Aff. in Opp’n (“Baity Aff.”) ¶ 6 (Dkt. No. 37) (“We have progressive discipline at the jail for all officers and had
Regrettably, this is not the first time that a court in this courthouse has had to take the extraordinary step of admonishing Plaintiffs counsel concerning his obligations to follow the Local Rules of this Court, as well as several courts’ Individual Practices. Plaintiffs counsel has been reprimanded for such conduct a number of times over more than seven years, including as recently as two months ago. See, e.g., Frawley v. Putnam Hosp. Ctr., No. 12-CV-3374, Dkt. No. 83, at 1-2 (S.D.N.Y. July 17, 2014) (ordering Plaintiffs counsel to re-file his client’s response to the defendant’s Rule 56.1 statements and to conform them with the court’s Individual Practices); Risco, 868 F.Supp.2d at 86 n. 2 (cataloguing the deficiencies with Plaintiffs counsel’s Rule 56.1 response and “admonishing Plaintiffs counsel concerning his obligations to follow the Local and Individual Rules” of the court); Vero v. Pepsi Cola of the Hudson Valley, No. 10-CV4112, Dkt. No. 17, at 1 n. 1 (S.D.N.Y. Apr. 3, 2012) (noting that Plaintiffs counsel “failed to support many of his denials with citations to the record,” and further failed to comply with the court’s Individual Practices); Tomlins v. Village of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 361 n. 2 (S.D.N.Y.2011) (admonishing Plaintiffs counsel for repeated failure to follow the court’s Individual Practices and declining to consider averments in plaintiffs 56.1 Statement that “[were] not supported by, or that were contradicted by, admissible evidence, or that [were] legal arguments under the guise of undisputed facts” (citations omitted)); Woods v. Newburgh Enlarged City Sch. Dist., 473 F.Supp.2d 498, 504 n. 3 (S.D.N.Y.2007) (admonishing Plaintiffs counsel for failing to cite to the record in his Memorandum and his Rule 56.1 statement, and for including material allegations not otherwise-asserted or supported), aff'd sub nom. Woods v. Newburgh Enlarged City Sch. Dist., 288 Fed.Appx. 757 (2d Cir.2008); Copeland v. Sears, Roebuck & Co., 25 F.Supp.2d 412, 417 n. 1 (S.D.N.Y.1998) (disregarding a denial in plaintiffs 56.1 statement that was not supported by citations to admissible evidence). As Judge Ramos previously remarked about Plaintiffs counsel’s filings in Risco, “[i]t simply will not do for counsel to say that genuine issues of material fact exist and then rely on the Court to go find them. Much more is expeetéd from an experienced member of the bar of this Court and will henceforth be strictly required.” 868 F.Supp.2d at 86 n. 1. At long last, the Court urges Mr. Sussman to take Judge Ramos’s warning to heart. At some point, more than an admonition will be appropriate.
Although the Court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the
B. Factual Background
Plaintiff is an African-American man who applied for a position as a corrections officer with the Rockland County Department of Corrections in either 2005 or 2006. (Decl. of Robert B. Weissman (“Weissman Deck”) Ex. B (Excerpted Tr. of Dep. of PI. W. Terrell Baity (“Baity Tr.”)), at 18 (Dkt. No. 27).) On March 19, 2008 Plaintiff was interviewed for the position by Lieutenant Jill King and Captain John Liska, (see Dec. of Captain Jill King (“King Deck”) ¶ 1 (Dkt. No. 30); Deck of Captain John Liska (“Liska Deck”) ¶ 4 (Dkt. No. 29)), both of whom are Caucasian, (see Baity Tr. 22-23). King and Liska ranked Plaintiff second overall in a list of 24 candidates, including a number of Caucasian candidates, and recommended to Chief William Clark (“Clark”) that Plaintiff be hired. (See King Deck ¶ 4; Liska Deck ¶ 7.) Clark accepted King and Liska’s recommendation and hired Plaintiff. (See King Deck ¶ 5; Liska Deck ¶ 8.)
All new corrections officers in the Rock-land County Department of Corrections are required to pass a two-year probationary period, during which time the individual works as an at-will employee, and after which a decision is made as to whether to hire the individual as a permanent corrections officer. (See Weissman Deck Ex. C (Tr. of Dep. of Captain William J. Clark (“Clark Tr.”)), at 13; Baity Tr. 30.) Plaintiff began working as a probationary corrections officer on June 30, 2008. (See Baity Tr. 23.) Plaintiffs performance reviews provided as part of discovery in this case, which date from September 2008 through September 2009, rate Plaintiffs performance as “Satisfactory” in all categories. (See Baity Aff. Ex. 1; Sussman Aff. ¶ 9.)
1. Gowins Incident
On the morning of September 23, 2009, Plaintiff was involved in an incident with an inmate, Alfred Gowins (“Gowins”). (See Baity Tr. 46-47.) The specifics of this incident, though immaterial to the instant case, are not entirely clear. In fact, an internal investigation of the incident by the Rockland County Bureau of Criminal Investigation determined, after interviewing the “[cjomplainants, witnesses and all parties involved” and an “extensive[ ] review”
On September 28, 2009 Gowins’s fiancée and his mother reported that Gowins had been assaulted by Plaintiff on September 23, 2009.
On October 2, 2009, the Rockland County Sherriffs Department received a fax from L’Tanya Watkins, Esq., noting that she represented Gowins “with respect to serious physical injuries that he incurred as a result of an assault which occurred at the Rockland County Jail on September 23, 2009. (Weissman Decl. Ex. J, (Letter from L’Tanya Watkins to Rockland County Sheriff Department (“Watkins Letter”)), at 2.) In the same letter, Ms. Watkins requested “the preservation of any and all video surveillance” related to the incident, and the production of “any written statements taken from Mr. Gowins as a result of this incident.” (Id.)
On September 21, 2012, Gowins filed suit against Rockland County, Plaintiff, and ten “John Doe” correctional officers in the District Court for the Southern District of New York, alleging violation of his civil rights and police brutality. (Weissman Decl. Ex. L, at 6.) In Gowins’s complaint, he alleged that he suffered “severe physical injuries,” including “a fractured orbital bone, fractured nose, and injuries to [his] neck and back.” (Id. at 5.) This suit, Gowins v. County of Rockland, et. al, Dkt. 12-CV-7154, is still ongoing. (See Defendants’ 56.1 Statement (“Defs.’ 56.1”) ¶ 63; Pl.’s 56.1 Resp. ¶ 63.)
2. Plaintiff’s Co-Worker Conflicts
On December 30, 2009 Plaintiff, who was assigned to the front desk, called the Intake area and spoke to Officer O’Sullivan (“O’Sullivan”) via stenophone, a device akin to a speakerphone, which can be overheard by others in the immediate vicinity. (King Decl. ¶ 8.) Plaintiff told O’Sullivan that Plaintiff was sending in a property release form for an inmate to release money to a visiting relative. (See id.) O’Sullivan, who had been a corrections officer for twenty years, told Plaintiff that release forms having to do with money are processed through the front desk and that there was no need to send the form to Intake, as Intake has no control over the money. (See id.) Plaintiff responded by telling O’Sullivan that Plaintiff knew the proper procedure and that “they’d been doing it [Plaintiffs] way for a long time”— for at least the two or three months that Plaintiff had been at the desk. (See id. ¶ 9; Baity Tr. 96-97.) Plaintiff then hung up on O’Sullivan. (Baity Tr. 96.)
O’Sullivan called Plaintiff back, thinking that they had accidentally been disconnected, and tried to explain to Plaintiff that, even though all other property release forms go through Intake, requests for release of money go through the front desk, which is responsible for generating the appropriate checks. (King Decl. ¶ 9.) Plaintiff abruptly ended the conversation. (See id. ¶ 9; Baity Tr. 97.) In describing the incident, Plaintiff stated that “O’Sullivan is a hot head and he spoke to me rude[ly]” and characterized the conversation as “an argument between co-workers” of the sort “[t]hat happens in any job.” (Baity Tr. 96.) Plaintiff also stated that O’Sullivan was “yelling” and that Plaintiff “didn’t have time to argue with him” because of the visitors he needed to assist. (Id. at 97.)
King heard the conversations between Plaintiff and O’Sullivan and spoke with Plaintiff, asking him why he kept hanging up on O’Sullivan. (King Decl. ¶ 10.) King testified that Plaintiff denied hanging up on O’Sullivan, (id. ¶ 10), though in Plaintiffs Affidavit, he acknowledges that he had hung up on O’Sullivan, (Baity Aff. ¶ 4). Regardless, King told Plaintiff that O’Sullivan was correct in the procedure he explained to Plaintiff and told Plaintiff that he should not have hung up on O’Sullivan and should not be rude to jail staff in the future. (See King Aff. If 10; Baity Tr. 98.)
Mueller and King spoke with Plaintiff about his interaction with Ludwig.
On January 1, 2010, Muller submitted a memorandum to King that described the December 31, 2009 incident and noted that:
I was somewhat taken aback by Officer Baity’s cavalier attitude in response to my counseling of him. Rather than “man-up” and agree that the acted inappropriately and unprofessionally, he*425 spent his efforts deflecting and stating that he was joking. Officer Baity stated that Officer Ludwig is always joking but cannot take a joke in return.... After some additional conversation, Officer Baity did acknowledge he was wrong but he was still muttering under his breath about Officer Ludwig as I exited the post. I feel that the attitude shown by Officer Baity is less than desirable and something that we should collective- • ly monitor going forward.
(Weissman Deck Ex. N (Jan. 1, 2010 Mem. from Mueller to King (“Mueller Mem.”)), at 1.)
3. Plaintiff’s Termination
Chief Clark had “final decision-making power” regarding “passing a [corrections officer] from [his or her] probationary period to permanent [corrections officer status],” though this decision is made “on the input from the supervisors” including the “[s]hift supervisors, lieutenants and the captains and the undersheriff.” (Clark Tr. 14.) In some cases, Clark’s boss, Under-sheriff Tom Guthrie (“Guthrie”) became involved in determinations concerning an officer’s probationary period as well. (Id. at 19.) Clark’s usual practice involved providing about a month’s notice to- the captains, lieutenants, and the sheriff that an officer’s probationary period was coming to an end, to allow staff members who had concerns about that officer to raise them with Clark, who could consider those concerns. (Id. at 16-19.) Chief Clark testified that complaints filed by a correctional officer’s supervisors are “taken into serious consideration” in determining whether to pass that officer from probationary to permanent status. (Id. at 29.)
With respect to Plaintiff, Clark was ill and out of the office for most of Plaintiffs probationary period. (Id. at 36.) In fact, Clark “didn’t speak with [Plaintiff] much during his probationary period, but remembered that “any time [Clark] met him, [Plaintiff] was respectful, [and] looked great in a uniform.” (Id. at 35.) Accordingly, Clark testified that he did not make the final determination about whether to pass Plaintiff to permanent corrections officer, but rather “went by the recommendation of the captain [Conjura] and the undersheriff [Guthrie].” (Id. at 36.) In addition “Captain Liska had part of a decision in it, but not much.” (Id.)
Captain Conjura (“Conjura”) read the King Memo and Mueller Memo and testified that he characterized them, collectively, as a “serious incident.” (Weissman Deck Ex. D (Tr. of Dep. of Joseph Conjura (“Conjura Tr.”)), at 88.) According to Conjura, “[we] need a cohesive working environment between staff at the jail[,]” and Plaintiffs behavior as described in the memoranda suggests “a tendency of behavior to be confrontational, not just with one officer but with two in a very relatively short period of time.... It goes against a good cohesive working relationship.” (Conjura Tr. 88-89.) Clark remembered Conjura noting that “Baity had to go” because “we had an assault pending” that “didn’t look good” “[i]n [their] own internal
After speaking with Conjura and Liska, Clark called Guthrie to obtain his opinion about whether Plaintiff should be promoted. (Id. at 45, 55.) Clark testified that he had previously spoken to Guthrie and that Guthrie was aware of the captains’ recommendations. (Id. at 56.) Clark relayed his opinion about Plaintiffs employment to Guthrie, (id. at 57), and, despite the fact that Clark “wanted to keep Baity,” Guthrie said to fire Plaintiff, (id. at 55). Conjura prepared the paperwork to terminate Plaintiffs probationary employment, and Clark signed it. (Id. 58.)
On June 10, 2010, Plaintiff received a call from Conjura and Liska, informing him that his probationary employment would be terminated and instructing him to turn in his badge, gun, and other equipment. (See Baity Tr. 105-06; Weissman Deck Ex. O (June 10, 2010 Mem. from Conjura to Clark), at 1.)
A Other Corrections Officers
In Plaintiffs Complaint, he claims that certain Caucasian corrections officers whose employment records were worse than Plaintiffs have nonetheless been promoted to permanent status. (See Compl. ¶ 17 (Dkt. No. 1).) In Plaintiffs responses to Defendants’ Interrogatories and in Plaintiffs deposition, he identified these officers as Joseph Helchowski (“Helchow-ski”), Gregory Dillon (“Dillon”), Gordon Heller, (“Heller”), James Enright (“En-right”), and “Dan.” (Baity Tr. 112; Weiss-man Deck Ex. W, Pl.’s Answer to Defs.’ Interrogatories ¶ 3.)
Plaintiffs only justification for his belief that Helchowski’s record was inferior to Plaintiffs was that Helchowski was absent too often during his probationary period, though Plaintiff did not know why Hel-chowski was absent. (See Baity Tr. 112-113.) However, at no point during Hel-chowski’s probationary period did Hel-chowski’s absences exceed his allotment of sick days, personal days, and vacation days. (See Liska Deck ¶ 36.) In addition, there were no complaints about Helchow-ski during his probationary period. (See Clark Tr. 59.)
Plaintiffs explanation for how Dillon’s record was inferior to his own was that he “got arrested and spent a night in jail, but he still made his probationary period.... So he got off saying he was not guilty.” (Baity Tr. 113-14.) In the abstract, Plaintiffs explanation is not incorrect, however, it fails to incorporate several uncontested facts. For example, Dillon was arrested along with the other occupants of the car involved, and charged with criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. (See Liska Decl. ¶ 10.) He pleaded “Not Guilty,” (id. ¶ 18), and the drug charges against Dillon were eventually dismissed, (id. ¶24; Sussman Aff. Ex. 7 (Cert, of Disposition in New York v. Dillon), at 1.) The only charge that was not dismissed was a seatbelt violation. (See Cert, of Dismissal in New York v. Dillon, at 1.) Following the arrest, Liska suspended Dillon with pay on February 16, 2011, which was later changed to suspension without pay on February 18, 2011, when Liska proffered formal departmental charges against Dillon. (See Liska Decl. ¶¶ 12, 15, 17.) Liska testified that she then conducted an investigation into the substance of the charges, during which she was informed that the criminal drug charges against Dillon had been dismissed and the case sealed. (Id. ¶¶ 22-25.) On May 27, 2012, Liska dropped the departmental charges against Dillon, at which time he returned to his work as a corrections officer. (Id. ¶ 28.)
Dillon is Clark’s nephew, and to avoid the appearance of impropriety, Clark re-cused himself from the review of Dillon’s probationary status. (See Liska Decl. ¶ 30; Declaration of Former Chief Joseph McDonald (“McDonald Decl.”) ¶ 4 (Dkt. No. 28); Clark Tr. 66-67.) Chief Joseph McDonald (“McDonald”) was the decision-maker for the review of Dillon’s probationary status.
Lastly, neither Plaintiff nor Conjura could recall any behavioral problems with Heller, Enright, or “Dan” during their probationary terms. (See Baity Tr. 112; Conjura Tr. 114-15.) Nor is there any evidence in the record to support a finding that these officers had behavioral problems. In fact, the performance reviews of Enright and Heller produced by Defendants show almost exclusively “Satisfactory” ratings across all performance categories. (See Sussman Ex. 6.)
Plaintiff filed his Complaint on January 20, 2012. (See Dkt. No. 1.) Defendants County of Rockland and James F. Kralik in his official capacity filed an Answer on March 16, 2012. (See Dkt. No. 4.) Following discovery, on February 18, 2014, Defendants filed their Motion for Summary Judgment along with a Memorandum in Support (“Defs.’ Mem.”), a Declaration of Robert B. Weissman in Support, a Rule 56.1 Statement, and several other Declarations in Support. (See Dkt. Nos. 25-32.) Plaintiff filed his Memorandum in Opposition along with an Affidavit of the Plaintiff in Opposition, an Affidavit of Michael H. Sussman in Opposition, and a Rule 56.1 Response and Counterstatement. (See Dkt. Nos. 35-38.) Defendants filed a Reply Memorandum of Law (“Defs.’ Reply Mem.”) and a second Declaration of Robert B. Weissman in Support (“Weissman Second Decl.”). (See Dkt. Nos. 33-34.) The Court held oral argument on September 12, 2014. (See Sept. 12, 2014 Oral Argument Transcript (“Sept. 12, 2014 Tr.”).) On September 15, 2014, Plaintiff submitted an additional letter to supplement his earlier filings in this case, per the Court’s invitation at oral argument. (See Letter from PI. to Court (Sept. 15, 2014) (“PL’s Supp. Letter”) (Dkt. No. 40).) The Court asked for this letter because Plaintiffs counsel tendered new arguments at oral argument in opposition to the Summary Judgment Motion. On September 17, 2015, Defendants submitted a letter in response to Plaintiffs supplemental letter. (See Letter from Defs. to Court (Sept. 17, 2014) (“Defs.’ Supp. Letter”) (Dkt. No. 41).)
II. DISCUSSION
A. Standard of Review
Before the Court is Defendants’ Motion for Summary Judgment. Summary judgment shall be granted where the movant shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care L.L.C. v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE ”) Prods. Liab. Litig., MDL Nos. 1358, M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., L.L.C., No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).
“In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also Borough of Upper Saddle River, N.J. v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314, 2014 WL 1621292, at *12 (S.D.N.Y. Apr. 22,
“A trial court must be cautious about granting summary judgment to an employer when, as here, its intent is at issue.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir.1994). Indeed, “[b]eeause writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer’s corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Id. Still, it is “beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001). In fact, “the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases.” Beale v. Mount Vernon Police Dep’t, 895 F.Supp.2d 576, 583 (S.D.N.Y.2012) (internal quotation marks omitted); see also Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (same). Thus, the Supreme Court has “reiterated that trial courts should not treat discrimination differently from other ultimate questions of fact.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks omitted).
B. Analysis
1. Plaintiffs Individual Capacity Claim
In addition to claims against Rockland County and Sheriff Kralik in his official capacity, Plaintiffs Complaint purports to assert a claim against Kralik in his individual capacity. (See Compl. ¶¶ 4-5.) Defendants claim that Plaintiff failed to personally serve Kralik, pursuant to the applicable Federal and New York state rules and that all individual claims against him should therefore be dismissed. (See Defs.’ Mem. 2.) Under Rule 4(e) of the Federal Rules of Civil Procedure, service may be effected on an individual by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
*430 (2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Fed.R.Civ.P. 4(e)(l)-(2).
Plaintiff does not claim to have served Kralik personally or at his home. (See Pl.’s Mem. 8.) Rather, Plaintiff asserts that “the County Clerk accepted service on his behalf as his apparent agent.” (Id.) However, the affidavit of service upon which Plaintiff relies identifies the individual at the county clerk’s office who accepted service, but includes no indication that she was authorized to accept service on behalf of Kralik as an individual, or that she represented the same. (See Weissman Deck Ex. S (Aff. of Service), at 1.) Instead, the affidavit states that the process server “served the summons on Kaitlyn Quinn-Clerk, who is designated by law to accept service on behalf of County of Rockland Clerk O/B/O/ Kralik.” (Id.) Plaintiff has provided no evidence that Kralik designated the county clerk to receive service of process on his behalf pursuant to N.Y. C.P.L.R. 318, nor has Plaintiff even suggested that such authorization exists. (See Pl.’s Mem. 7-8.) The county clerk is authorized by N.Y. C.P.L.R. § 311(a)(4) to accept service of process for the county and, by extension, county officials in their official capacity. However, such a statute does not render service on the clerk sufficient service for an individual sued in his individual capacity. See, e.g., Bogle-Assegai v. Connecticut, 470 F.3d 498, 507-08 (2d Cir.2006) (affirming the dismissal of claims against individual defendants where the plaintiff served the attorney general’s Office under an analogous Connecticut service statute but did not provide for personal service). Moreover, even if the clerk had represented to Plaintiffs process server that she was authorized to accept service for Kralik in his individual capacity, there is no evidence in the record of any appointment, or that Kralik knew that the clerk made such a representation, and therefore service cannot be sustained under N.Y. C.P.L.R. § 308(3). See Jackson v. Cnty. of Nassau, 339 F.Supp.2d 473, 479 (E.D.N.Y.2004) (noting that “representations made by an individual who accepts service of process are not binding on the defendant in the absence of proof that the defendant himself knew of such representations,” and that “accepting process for another party does not mean the acceptor was appointed to do so” (internal quotation marks omitted)). Thus, Plaintiff has not demonstrated that it has served Kralik under the means provided by Federal Rule of Civil Procedure 4(e)(2).
Pursuant to Rule 4(e)(1), the Plaintiffs may also effect service on the Individual Defendants by following New York law. Pursuant to New York Civil Practice Laws and Rules § 308(2), a natural person may be served by
delivering the summons within the state to a person of suitable age and discretion at the actual place of business ... of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” ... within twenty days of [the delivery].
N.Y. C.P.L.R. § 308(2). “New York courts have construed ‘actual place of business’ to include (1) a place where the de
Here, Plaintiff does not contest the fact that Kralik left office in December 2011 and was replaced by Sheriff Louis Falco on January 2, 2012. (Defs.’ 56.1 ¶¶ 135-36; Pl.’s 56.1 Resp. ¶¶ 135-36.) Thus, Kralik was no longer employed by the County at the time Plaintiff commenced this action on January 20, 2012, and service at a county office simply cannot amount to personal service at Kralik’s “actual place of business” pursuant to N.Y. C.P.L.R. § 308(2). See Colvin v. State Univ. Coll. at Farmingdale, No. 13-CV-3595, 2014 WL 2863224, at *14 (E.D.N.Y. June 19, 2014) (“A defendant’s ‘actual place of business’ is his or her ‘business address at the time of service, and not when the cause of action arose.’ ” (quoting Jackson, 339 F.Supp.2d at 478)). Perhaps as testament to the weakness of this argument, Plaintiff does not even suggest that the Court should find Kralik to have been served at his place of business. (See Pl.’s Mem. 7-8.)
In addition to the fact that Plaintiffs actions do not satisfy the statutory requirements for service upon an individual defendant, Defendants’ Answer, which in its very first sentence clearly identifies the party answering the Complaint as “Defendant County of Rockland, also [sued herein as] James F. Kralik sued ... in his official capacity as Sheriff, County of Rockland,” (Answer at 1 (Dkt. No. 4)) — and the absence of any motion to dismiss or answer filed by Kralik in his individual capacity— should have placed Plaintiff and his counsel on notice that Kralik had not been properly served. Indeed, this is not the first case involving deficient service by Plaintiffs counsel, as Plaintiff previously initiated an action against Kralik relating to Plaintiffs employment with Rockland County in which Plaintiff failed to serve Kralik, despite having appropriately served the County. (See Baity v. Kralik, No. 10-CV-8127 (Dkt. No. 5) (granting Plaintiffs request to dismiss the case without prejudice to permit service of Kralik).) More than 120 days have elapsed since the filing of this lawsuit, yet Plaintiff, who is represented by counsel in this action, has not provided the Court with a reason for his failure to serve Kralik, or, for that matter, sound grounds for Plaintiffs purported belief that service of the Rockland County Clerk’s Office was sufficient to provide for personal service of Kralik. The Court will therefore dismiss Plaintiffs claims against Kralik in his individual capacity. See, e.g., Hailey v. Connecticut, No. 10-CV-1787, 2011 WL 6209748, at *3-4 (D.Conn. Dec. 14, 2011) (granting the defendant’s motion to dismiss where the “[p]laintiff has failed to serve [the defendants] in their individual capacities” as required by state law); Chen v. Holder, No. 10-CV-2432, 2011 WL 6837761, at *7-9 (E.D.N.Y. Dec. 29, 2011) (dismissing claims against a defendant in his individual capacity due to insufficient service, where the plaintiff failed to serve the defendant at his “actual place of business” and was given opportunities to cure the service defect but failed to do so); Davis v. Mara, 587 F.Supp.2d 422, 427 (D.Conn.2008) (granting a motion to dismiss claims against state employee defendants in their individual capacities because the plaintiff failed to effectuate personal service according to state law, where service was accepted by the Connecticut Office of the Attorney General, but where defendants had not authorized the office to accept service on their behalf in their individual
Plaintiff objects to the fact that Defendants never raised the failure to serve Kralik prior to their Motion for Summary Judgment and suggests that Defendants should be barred from relying on failure to serve as grounds for an affirmative defense. (See PL’s Mem. 8.) However, Kra-lik has never appeared in his individual capacity in this ease. (See Defs.’ 56.1 ¶ 141; Pl.’s 56.1 Resp. ¶ 141 (denying this fact, but providing no citation to the record, nor making any statement to the contrary that would refute it).) Defendants’ official filings conspicuously omit the phrase “in his individual capacity” when referencing the parties represented by Defendants’ counsel, (see Answer at 1 (Dkt. No. 4) (“James F. Kralik sued ... in his official capacity as Sheriff’ (alterations in original)); Defs.’ 56.1 (filed “[o]n behalf of defendant County of Rockland (also s/h/a James F. Kralik sued in his official capacity)”); Notice of Motion (Dkt. No. 26) (brought only by the County of Rockland).) Unfortunately, Defendants’ correspondence with the Court has been less clear with respect to counsel’s limited representation. (See Letter from Defs. to Court (Apr. 25, 2013) (Dkt. No. 11) (“We represent the County of Rockland and James F. Kralik in the above-referenced § 1983 employment civil rights suit.”); Letter from Defs. to Court (June 18, 2013) (Dkt. No. 14) (“We represent the defendants in this employment civil rights case.”); Letter from Defs. to Court (Aug. 22, 2013) (Dkt. No. 15) (same); Letter from Defs. to Court (Nov. 21, 2013) (Dkt. No. 19) (same).) Nonetheless, Plaintiff has not offered an acceptable reason for his failure to properly serve Kralik in his individual capacity.
At oral argument, Defense counsel informed the Court that counsel has not contacted Kralik and does not know where he is located. (See Sept. 12, 2014 Tr. 13-14.) Moreover, when asked by the Court about the nature of Kralik’s personal involvement and whether Kralik was served, Plaintiffs counsel could only express his “view” that “if [Kralik] has the responsibility on behalf of the County ... if there [are] discriminatory actions taken by his second, his undersheriff, making such a direction, [Kralik] is responsible,” and that he further believed “that the County was accepting service for Kralik in all his capacities” despite the fact that he was the former sheriff and was no longer in office. (See id. at 48-50.) Plaintiff conceded that he does not “allege that Kralik did [anything] at all ... that violated [Baity’s] rights,” but maintained that Kralik is nonetheless responsible for the decisions made by the undersheriff. (See Sept. 12, 2014 Tr. 46-47.) However, Plaintiff has failed to provide the Court with any legal authority to support his contention that supervisory responsibility is sufficient grounds' for individual liability under § 1983 here, despite ample time to do so, especially where there is no evidence that Kralik ever knew about the subordinate’s decision, let alone that it might have been discriminatory. To the contrary, the law in the Second Circuit is clear that “a supervisor may be held liable [under § 1983] if he or she was personally a ‘direct participant’ in the constitutional violation,” and that “a ‘direct participant’ includes a person who authorizes, orders, or helps others to do the unlawful acts, even if he or she does not commit the acts personally.” Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir.2014). Thus, even if Kralik had been
2. Monell Liability
Plaintiffs remaining claims are against the Rockland County and against Kralik in his official capacity, which is tantamount to a claim against the municipality itself. See Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir.2012) (“A claim asserted against an individual in his official capacity ... is in effect a claim against the governmental entity itself ... for ‘official-capacity suits generally represent only another way of pleading an action' against an entity of which an officer is an agent.’” (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978))). Plaintiffs Complaint asserts a cause of action solely pursuant to 42 U.S.C. § 1983. (See Compl. ¶ 20.)
Rather than engage with Defendants’ contention that Plaintiff has not demonstrated the existence of a Rockland County policy or custom sufficient to provide grounds for Monell liability, Plaintiffs Memorandum in Opposition makes the bold argument that a provision of the County’s charter obviates the need to examine the County’s Monell liability at all. (See Pl.’s Mem. 9-10.) By Plaintiffs account, several provisions of the County’s Code require the County to “assume responsibility for ... the discriminatory acts of any employee of the Sheriffs office” regardless of whether they were pursuant to a custom or policy. (See id.) In short, Plaintiff argues that, through these provisions, Rockland County accepts vicarious liability for Sheriff office personnel and waives the Monell requirements for § 1983 claims against the County.
The Court’s rejection of Plaintiffs argument comports with the conclusion of every court to have considered it. While it does not appear that any court in the Second Circuit has specifically addressed this issue, a number of other circuits have, and have held that state and municipal vicarious liability statutes may not provide the grounds for a § 1983 action. See Siler v. Webber, 443 Fed.Appx. 50, 53 (6th Cir.2011) (holding that a Tennessee statute, which created a state-law cause of action against a county for any injury resulting from any act or failure to act on the part of a deputy, and thus allowed vicarious liability, conflicted with § 1983, which did not, and thus could not be used to maintain a federal action against county under § 1983); Henley v. Edlemon, 297 F.3d 427, 430 n. 6 (5th Cir.2002) (rejecting Plaintiffs attempt to rely on state law vicarious liability statute as grounds for liability “in their § 1983 suit because it is inconsistent with federal law”); Palmer v. Sanderson, 9 F.3d 1433, 1438 (9th Cir.1993) (holding that “a state statute imposing vicarious liability” to be “inconsistent with the laws of the United States,” and thus cannot be the basis for a § 1983 action (alteration omitted and internal quotation marks omitted)).
Plaintiffs Memorandum in Opposition makes no mention of Defendants’ argument that Defendants cannot be held liable under Monell, apart from Plaintiffs summary statement that “the county’s extensive discussion of Monell liability is misplaced and ignores the assumption of responsibility for the acts and omissions of all employees of the Sheriffs department, as set forth in the charter.” (Pl.’s Mem. 10.) Accordingly, the Court could find Plaintiff to have abandoned any claim that Monell liability applies. See Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir.2014) (noting that “in the case of a counseled party, a court may, when appropriate, infer from a party’s partial opposition that relevant claims or defenses that are not defended have been abandoned”); Parrilla v. City of New York, No. 09-CV-8314, 2011 WL 611849, at *1 n. 4 (S.D.N.Y. Feb. 16, 2011) (finding that the plaintiffs § 1983 claim to have been abandoned where the “[p]laintiff failed to address or oppose [the defendants’ arguments re
As the Court has already discussed above, “when the defendant sued for discrimination under ... § 1983 is a municipality — or an individual sued in his official capacity — the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir.2004) (citations omitted) (citing Monell, 436 U.S. at 692-94, 98 S.Ct. 2018). “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.C. Police Dep’t, 971 F.2d 864, 870 (2d Cir.1992)). “It is sufficient to show, for example, that a discriminatory practice of municipal officials was so persistent or widespread as to constitute a custom or usage with the force of law or that a discriminatory practice of subordinate employees was so manifest as to imply the constructive acquiescence of senior policy-making officials.” Patterson, 375 F.3d at 226 (citations and internal quotation marks omitted).
Here, Plaintiff makes no suggestion that Rockland County has an express policy of discrimination. To the contrary, the County has an Equal Employment Opportunity Policy that expresses the County’s commitment “to hiring and maintaining access to employment and advancement for qualified individuals regardless of their ... color ... [or] race,” which Plaintiff has acknowledged receiving. (See Baity Tr. 116-17; Weissman Decl. Ex. V (County of Rockland Equal Employment Opportunity Policy).) The fact that the County has such a policy is hardly surprising. See Jimenez v. City of New York, 605 F.Supp.2d 485, 530 (S.D.N.Y.2009) (“Obviously the City of New York does not promulgate any official policy of discrimination along the lines plaintiff suggests. A trip to the City’s web site reveals just the opposite; the City claims to be an equal opportunity employer.”). Regardless, Plaintiff identifies no evidence that the County has an explicit policy of discriminatory hiring.
Nor is there evidence in the record that could support a reasonable jury’s finding of a persistent or widespread practice of discrimination. See Patterson, 375 F.3d at 226. Plaintiff makes no allegation that the County has a history of failing to hire correctional officers who are racial minorities or failing to promote the same after their mandatory probationary periods. In fact, Defendants have submitted unrefuted evidence that the hiring demographics support the opposite conclusion. (See Defs.’ 56.1 ¶¶ 202-03; Liska Decl. ¶¶ 2-3.) While Plaintiff purports to “[d]eny the relevance of this” evidence, (Pl.’s 56. 1 Resp. ¶¶ 202-03), he provides no contradictory evidence, anecdotal or otherwise, nor proffers any reason to believe that the employment information provided by Defendants is unreliable. Specifically, Defendants have provided evidence that “14 African-American corrections officers have come up for review” for permanent status since 2003 and only Plaintiff and one other officer, who “was caught corresponding with the female inmates whom he was supposed to be supervising and was terminated,” have not been promoted to permanent status. (Liska Decl. ¶ 2.) By way of comparison, “four
Lastly, Plaintiff could satisfy MoneU’s “policy, custom, or practice” requirement by demonstrating “actions taken or decisions made by government officials responsible for establishing municipal policies ----” Albert v. City of Hartford, 529 F.Supp.2d 311, 329 (D.Conn.2007) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)); see also Chin v. N.Y.C. Hous. Auth., 575 F.Supp.2d 554, 561 (S.D.N.Y.2008) (“[T]he acts and pronouncements of a single official may constitute policy for which the municipality is liable if that official is the ‘final policymaker’ in the area at issue.” (citing St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion), and Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000))). While Plaintiff failed to make this claim in either his Complaint or his Memorandum in Opposition to Defendants’ Motion, Plaintiff first asserted at oral argument that Kralik was a policymaker and that his role in Plaintiffs termination is a basis to hold Rockland County liable under Monell.
“Whether or not a single individual possesses final policymaking authority is an issue of state law.” Chin, 575 F.Supp.2d at 562 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (internal quotation marks omitted)); see Bliven v. Hunt, 579 F.3d 204, 214 (2d Cir.2009) (“The matter of whether a given official is a municipal policymaker is a question of law.”); Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir.2008) (noting that “[w]hether an official has final policymaking authority is a legal question, determined on the basis of state law”). However, “[t]he individual need not possess general policymaking authority, but rather only authority to formulate policy governing that particular conduct at issue.” Chin, 575 F.Supp.2d at 562 (citing Jeffes, 208 F.3d at 57 (“[T]he official in question need not be a municipal policymaker for all purposes. Rather, with re
With respect to Kralik’s hiring and firing authority, the Rockland County Code provides that “[t]he Sheriff may, within the appropriations provided therefor, appoint jailers, ... and such other officers and employees as may be necessary to operate the County Jail facilities.” County of Rockland Code § 5 — 148(c) (available at http://ecode360.com/9663359). The Sheriffs appointment and termination power is circumscribed by New York’s Constitution, which places a sheriffs appointees under the civil service system. See Jeffes, 208 F.3d at 59 (“Prior to 1990, the [New York] Constitution provided that ‘the county shall never be made responsible for the acts of its sheriff.’ As a result of that provision, a sheriffs appointees were considered to be the employees of the sheriff himself, rather than of the city or county in which he operated, and most were regarded as beyond the scope of the civil service system. After the State constitution was amended in 1990 to delete the provision relieving counties of liability for the acts of their sheriffs, the amendment was interpreted by the State legislature and the State courts to mean that all sheriffs’ employees are to be included in the civil service system.” (citations and alterations omitted)). Thus, while the Sheriff has the power over employment decisions regarding correctional officers such as Plaintiff, he is nonetheless constrained by the policies pertaining to members of the Rockland County civil services system, including the County’s Equal Employment Opportunity Policy. See, e.g., Chin, 575
The Supreme Court, in parsing the difference between discretionary authority and policymaking authority, provided a hypothetical that Defendants submit is highly analogous to the instant case:
[F]or example, the County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriffs decisions respecting employment would not give rise to municipal liability, although similar decisions with respect to law enforcement practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees*439 and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff decisions would represent county policy and could give rise to municipal liability.
Pembaur, 475 U.S. at 483 n. 12, 106 S.Ct. 1292. Here, as in the Pembaur hypothetical, Kralik has the authority to fire and hire employees under the Rockland County Charter, but he is nonetheless limited by a policy that is beyond his control, the County’s Equal Opportunity Employment Policy. That such policy applies to Plaintiffs case is clear from the fact that Plaintiff signed an acknowledgment of receipt of the County’s Policy and has confirmed receiving the same. (See Baity Tr. 116-17; Weissman Deck Ex. U (June 30, 2008 Acknowledgment of Receipt of Copy of the County’s Equal Employment Opportunity Policy signed by Plaintiff), at 1.) Defendants argue that, in keeping with the Supreme Court’s thinking in Pembaur, even if Kralik had fired Plaintiff in violation of the County’s Equal Opportunity Employment Policy, Plaintiff would not be able to establish municipal liability under a policymaker theory. While, on its face, Pemb-aur’s hypothetical appears to be directly applicable here, the resolution of the situation described therein, upon which Defendants rely, arguably is dicta. Moreover, Pembaur’s hypothetical appears to contemplate a situation in which specific employment policies are set by the Board of County Commissioners, whereas here the record contains no evidence of constraints on Kralik’s employment authority other than the County’s broad EEO Policy.
When presented with similar situations, a number of courts in the Second Circuit have found that the authority to make individual employment decisions was not sufficient to make an official a policymaker for the purposes of Monell liability. See, e.g., Hardy v. Town of Greenwich, No. 06-CV-833, 2009 WL 2176117, at *6 (D.Conn. July 22, 2009) (holding that, “while [the chief of police] certainly enjoyed discretion to decide which employees to appoint to specialized units,” that discretion was constrained by the town’s policies and the oversight of the [police commissioner] and that the [c]hief of [p]olice was therefore not the final policymaker for the claims at issue); Chin, 575 F.Supp.2d at 565-66 (finding that the plaintiffs supervisor was not a final policymaker regarding employment practices where the city charter vested that authority elsewhere and the supervisor’s discretion was constrained by municipal policy); Albert, 529 F.Supp.2d at 330-31 (holding that the police chief was not the final policymaker as to the hiring and firing of employees where his discretion was constrained by city policies, including an anti-discrimination policy); Knight v. Hartford Police Dep’t, No. 04-CV-969, 2006 WL 1438649, at *20 (D.Conn. May 22, 2006) (granting summary judgment to the defendants on grounds that the police chief was not a policymaker because his “powers to appoint or remove' — -including his power to make promotions — are expressly made ‘subject to’ the antidiscrimination provisions of Chapter XVI. In contrast to this grant of discretion with respect to employment decisions, the [p]olice [c]hief is given authority to make rules and regulations— in conformity with city ordinances — concerning the operation of the department and the conduct of its employees.”); Looby v. City of Hartford, 152 F.Supp.2d 181, 188-89 (D.Conn.2001) (holding that the chief of the Hartford fire department was not the final policymaker with respect to personnel decisions within the department despite broad discretion to make person
In addition, another court in this district, when considering the issue of whether Rockland County could be held liable for discrimination based on a single act by a municipal employee, found that “the [Rockland] County Executive is the final policymaker with regard to personnel matters relating to County employment, which is the area in which the allegedly unconstitutional action was taken vis-a-vis [the plaintiff].” Jean-Gilles v. Cnty. of Rockland, 463 F.Supp.2d 437, 444 (S.D.N.Y.2006) (“Jean-Gilles II ”) (quoting the court’s jury charge regarding municipal liability in the plaintiffs earlier case against the County).
There may well be limits, however, to shielding department heads from liability on the basis of municipal policies. The Supreme Court recognized this more than twenty years ago, when it noted that
If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superi- or liability.
If, however, a city’s lawful policymakers could insulate the government from liability simply by delegating their policy-making authority to others, § 1983 could not serve its intended purpose.
Praprotnik, 485 U.S. at 126, 108 S.Ct. 915. The Supreme Court acknowledged that “[i]t may not be possible to draw an elegant line that will resolve this conundrum,” id., but noted that the availability for Mo-nell liability based on a widespread practice “ensures that most deliberate municipal evasions of the Constitution will be sharply limited,” id. at 127, 108 S.Ct. 915. In other words, non-policymakers who repeatedly violate municipal policies will create grounds for Monell liability though the establishment of an unwritten policy or custom. This may, of course, be small comfort to victims of isolated acts of discrimination by non-policymakers. However, the Supreme Court has explained that, because Monell’s “policymaker” status only applies to officials who -have authority to make final policy, a policymaker’s review and ratification of a subordinate’s decision “would be chargeable to the municipality because [the policymaker’s] decision is final,” as the municipality has “retained the authority to measure the official’s conduct for conformity with their policies.” Id. Furthermore, if “an official’s discretionary decisions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality.” Id.
Here, Defendants contend that the EEO Policy is sufficient to strip the County Sheriff of policymaking authority over employment in the department. That policy puts the County Executive, and not the Sheriff, in the final policymaker role. Moreover, Plaintiff does not allege that the County Executive has delegated this authority to the Sheriff. Thus, this case is not unlike other cases in which a department head was not found to be a policymaker with respect to employment deci
Ultimately, however, the Court need not determine whether Kralik was a policymaker with respect to employment decisions in the Rockland County Sheriffs Office, as Plaintiff has acknowledged that Kralik played no role in the decision to fire Plaintiff.
At oral argument, and as noted above, Plaintiff proffered a new theory of Monell liability that was not explored in Plaintiffs previous submissions to the Court. Specifically, Plaintiff argued that Kralik delegated his hiring authority to the undersheriff, Guthrie, thus making him the official policymaker for the County with respect to employment policy in the Sheriffs Office
The law in the Second Circuit is clear that, “isolated acts by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability.” Carmichael v. City of New York, 34 F.Supp.3d 252, 263, 2014 WL 3818192, at *7 (E.D.N.Y. Aug. 1, 2014) (internal quotation marks and alteration omitted) (quoting Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir.2012)). Furthermore, Plaintiffs “delegate down” theory of Monell policymaker liability— especially in the absence of evidence of such policymaking delegation — would quickly eviscerate the longstanding prohibition of § 1983 liability under respondeat superior theories. See Roe, 542 F.3d at 36 (noting that “ ‘a municipality cannot be made liable’ under § 1983 for acts of its employees ‘by application of the doctrine of respondeat superior.’ ” (quoting Pembaur, 475 U.S. at 478, 106 S.Ct. 1292).) Put simply, Plaintiff puts the notion of personal responsibility, a hallmark of § 1983 liability, on its head. See, e.g., Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.2013) (“It is well settled that, in order to establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff must show ... the defendant’s personal involvement in the alleged constitutional deprivation.”). According to Plaintiff, the non-involvement of the sole policymaker in the adverse action morphs into a delegation of policymaking authority to others and thereby imposes Monell liability on a municipality. The Court will not accept Plaintiffs invitation to create such an expansive extension of Monell in the absence of any case law to support the viability of Plaintiffs theory.
Finally, in his post-oral argument letter to the Court, Plaintiff advanced yet anoth
Indeed, in his September 15, 2014 letter, Plaintiff provides no citations to evidence in the record to support this theory, nor has the Court found any evidence to support that such rubber stamping by Kralik occurred. Plaintiff also points to no evidence to support an improper motive on Guthrie’s part. Thus, even if the cat’s paw theory applied to § 1983 actions, Plaintiff would need to demonstrate Guthrie’s discriminatory motive and that Guthrie’s decision was rubber stamped by Kralik.
S. McDonnell Douglas
Even if Plaintiff were able to establish that a claim could be brought against the County, Plaintiff has not identified a material fact in dispute, nor evidence to permit a reasonable juror to find that Plaintiff has satisfied the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for a claim of discrimination. “Courts employ the [McDonnell Douglas] burden-shifting analysis when evaluating disparate treatment claims brought under § 1983 and § 1981.” Johnson v. N.Y.C. Dep’t of Educ., 39 F.Supp.3d 314, 321, 2014 WL 4090844, at *6 (E.D.N.Y. Aug. 19, 2014) (citing Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir.2013)). First, Plaintiff must establish a prima facie case of discrimination, see McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817, by demonstrating: “(1) membership in a protected class; (2) qualification for the position; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination on the basis of membership in the protected class.” Ricci v. DeStefano, 530 F.3d 88, 110 (2d Cir.2008). “Although the burden of establishing a prima facie case is not onerous, and has been frequently described as minimal,' the Second Circuit has also noted that a jury cannot infer discrimination from thin air.” Stafford v. N.Y. Presbyterian Hosp., No. 06-CV2150, 2011 WL 1131104, at *5 (E.D.N.Y. Mar. 28, 2011) (citations and emphasis omitted) (citing Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir.1997) and Norton v. Sam’s Club, 145 F.3d 114, 119 (2d Cir.1998)).
If a plaintiff establishes a prima facie case of discrimination, the burden “then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; accord Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). “This burden is one of production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citations and internal quotation marks omitted). Once the employer satisfies this burden, “the presumption of discrimination drops out of the picture,” and the plaintiff bears the burden of demonstrating “by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Id. at 143, 120 S.Ct. 2097 (citations and internal quotation marks omitted). Even drawing all inferences in Plaintiffs favor, the Court cannot find that the evidence in Plaintiffs case could support a reasonable jury to return a verdict in Plaintiffs favor.
a. Prima Facie Case
Plaintiffs claims cannot survive even the first step of the McDonnell Douglas analysis. While Plaintiff is a member' of a
Absent direct evidence demonstrating discriminatory intent, which Plaintiff has not alleged and no evidence has suggested, “[a] plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees [not in the protected class] were treated more favorably.” Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir.1999). “To be ‘similarly situated,’ the individuals with whom [a plaintiff] attempts to compare [him]self must be similarly situated in all material respects.” Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.1997). And to be similarly situated in “all material respects,” Plaintiff must “show that similarly situated employees who went undisciplined engaged in comparable conduct.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir.2000); see also McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir.2001) (“[W]here a plaintiff seeks to establish [his] minimal prima facie case by making reference to the disparate treatment of other employees, those employees must have a situation sufficiently similar to plaintiffs to support at least a minimal inference that the difference of treatment may be attributable to discrimination.”); Jackson v. City of New York, 29 F.Supp.3d 161, 172-73, 2014 WL 1010785, at *6 (E.D.N.Y. Mar. 17, 2014) (holding that the plaintiff “fail[ed] to identify any similarly situated employees who were not comparably disciplined for substantially the same conduct that [the] [p]laintiff engaged in, or was accused of engaging in”); McLaughlin v. New York, No. 11-CV1242, 2013 WL 3915183, at *7 (S.D.N.Y. July 30, 2013) (applying Graham, 230 F.3d at 40). The conduct need not be “identical,” but there must be a “reasonably close resemblance of the facts and circumstances of [the] plaintiffs and [the] comparator’s cases,” such that “the conduct for which the employer imposed discipline was of comparable seriousness” to the conduct of the similarly situated but undisciplined employees. Graham, 230 F.3d at 40; see also Kugler v. Donahoe, No. 11-CV-648, 2014 WL 1010317, at *10 (E.D.N.Y. Mar. 17, 2014) (applying Graham and noting that “[t]he employees’ situations need not be identical, but must closely resemble each other”); Taylor v. Seamen’s Soc’y for Children, No. 12-CV-3713, 2013 WL 6633166, at *14 (S.D.N.Y. Dec. 17, 2013) (“What constitutes ‘all material respects’ varies, of course, from case to case, but ‘the plaintiff and those [he] maintains were similarly situated [must have been] subject to the same workplace standards[,]’ .... [which] requires ‘a reasonably close resemblance of facts and circumstances.’ ” (second alteration in original) -(quoting Graham, 230 F.3d at 40)).
Plaintiff argues that such an inference can be drawn from the fact that terminations of employment “are extremely rare and have been taken against white people only where they were arrested for serious criminal activity, i.e., selling drugs or guns to inmates, or due to severe attendance problems.”
Similarly, Plaintiff has identified no behavioral or performance issues with Hel-chowski, nor his involvement in any incidents with inmates, let alone ones that resulted in litigation. Plaintiff admitted no knowledge of anything Helchowski “did that is similar to” the Gowins incident and the incidents memorialized in the Muller and King memoranda. (See Baity Tr. 113.) Plaintiff claimed that Helchowski was too often absent during his probationary period, (see id. at 112), however Hel-chowski’s absences did not exceed his allotment of sick, personal, and vacation days, (Liska Deck ¶ 36.) In fact, the record suggests that there were no complaints about Helchowski during his probationary period. (See Clark Tr. 59.) Therefore, as with the other officers mentioned above, the Court cannot find that Helchowski is sufficiently similar to serve as a comparator to Plaintiff and provide a basis for any reasonable jury to find an inference of discrimination.
Any attempt by Plaintiff to draw parallels between his case and that of officer Dillon is also unavailing. In a single incident outside of work, Dillon was arrested on drug possession charges, but these charges were later dismissed and only a seat belt violation remained on Dillon’s record. (See Liska Deck ¶ 10, 18, 24; Cert, of Dismissal in New York v. Dillon,
Furthermore, to the extent that Plaintiff alleges that his record was considered less favorably than Dillon’s during the determination of whether to promote each officer to permanent status or terminate their employment, different decisionmakers were involved. With respect to Plaintiff, the decision was made by Clark in consultation with Conjura and Gutherie and drawing upon information from Liska. (See Clark Tr. 36-38, 43-45, 55-57; Conju-ra Tr. 55-58.) The employment decision with respect to Dillon was made by McDonald, after consulting with Liska. (See McDonald Deck ¶ 5; Liska Decl. ¶ 34.) Neither Clark, Conjura, nor Gutherie played a role in the employment decision regarding Dillon. (McDonald Deck ¶¶ 8-10.) This difference is significant enough to prevent a reasonable jury from finding that Dillon and Plaintiff were similarly situated so as to allow the drawing of an inference of discrimination from the fact that Dillon was promoted while Plaintiff was dismissed. See White v. Conn., Dep’t of Corr., No. 08-CV-1168, 2010 WL 3447505, at *6 (D.Conn. Aug. 24, 2010) (“To be considered similarly situated, an individual must have been treated more favorably by the same decisionmaker that dealt with the plaintiff.”); Jeunes v. Potter, No. 08-CV-1218, 2009 WL 2883060, at *11 (D.Conn. Sept. 3, 2009) (same); Syrkin v. State Univ. of N.Y., No. 04-CV-4336, 2008 WL 4179690, at *7 (E.D.N.Y. Sept. 10, 2008) (noting that “when different deci-sionmakers are involved, two decisions are rarely similarly situated in all relevant respects” (internal quotation marks omitted)), aff'd, 370 Fed.Appx. 150 (2d Cir.2010). “This is so because different deci-sionmakers may rely on different factors when deciding whether, or how severely, to discipline an employee.” White, 2010 WL 3447505, at *6; see also Smith v. Xerox Corp., 196 F.3d 358, 370-71 (2d Cir.1999) (“Because intent is the critical issue [in disparate treatment cases], only a comparison between persons evaluated by the same decision-maker is probative of discrimination.”), overruled on alternate grounds by Meacham v. Knolls Atomic Power Lab., 461 F.3d 134 (2d Cir.2006), vacated 554 U.S. 84, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008). In addition to different decisionmakers, the different staff involved in Plaintiffs and Dillon’s case may suggest that they had different supervisors, which could provide further basis to find them not similarly situated. See McDowell v. T-Mobile USA, Inc., No. 04-CV-2909, 2007 WL 2816194 at *9 (E.D.N.Y. Sept. 26, 2007) (“In the Second Circuit, whether or not co-employees report to the same supervisor is an important factor in determining whether two employees are subject to the same workplace standards for purposes of finding them similarly situated.” (internal quotation marks omitted)); Woods, 473 F.Supp.2d at 525 n. 38 (noting that the
Lastly, the fact that Dillon was Clark’s nephew may have, consciously or unconsciously, led to generous decision-making with respect to Dillon’s employment. However “[a]s much as nepotism may smack of unfairness, it is not discrimination” and does not provide grounds for an employment discrimination claim. Albuja v. Nat’l Broadcasting Co. Universal, Inc., 851 F.Supp.2d 599, 612 n. 7 (S.D.N.Y.2012) (internal quotation marks omitted); Martin v. Queens Cnty. Civil Court, No. 07-CV-1485, 2009 WL 3497489, at *16 (E.D.N.Y. Oct. 28, 2009) (same). For all of the aforementioned reasons, the Court does not find that Plaintiff has identified any similarly-situated employees whose cases may provide grounds for a reasonable jury to infer a prima facie case of discrimination.
The fact that Liska played a role in both hiring Plaintiff and ultimately recommending that he be fired further cuts against any inference of discrimination related to Plaintiffs termination. (See Liska Decl. ¶ 4, 7, 8; Clark Tr. 38; Conjura Tr. 57.) “[W]hen the same actor hires a person already within the protected class, and then later fires that same person, it is difficult to impute to [him] an invidious motivation that would be inconsistent with the decision to hire.” Gue v. Suleiman, No. 10-CV-8958, 2012 WL 4473283, at *5 (S.D.N.Y. Sept. 27, 2012) (citations and internal quotation marks omitted) (quoting Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir.2000)), appeal dismissed, No. 13-CV-112 (2d Cir. Apr. 25, 2013). “The decision-makers in the hiring and firing need not mirror each other exactly as long as one management-level employee played a substantial role in both decisions.” Campbell v. Alliance Nat’l Inc., 107 F.Supp.2d 234, 250 (S.D.N.Y.2000); see Ralkin v. N.Y.C. Transit Auth., 62 F.Supp.2d 989, 1000 (E.D.N.Y.1999) (holding that the same actor inference applied where a manager, who may not have actually hired employee-plaintiff, interviewed plaintiff and made the recommendation to hire her and played a significant role in the decision to fire her). Even if the “same actor”. inference is not applicable here, given Liska’s minor role in Plaintiffs termination, it nonetheless counters any inference that Liska’s reporting about the O’Sullivan and Ludwig incidents was motivated to result in Plaintiffs termination.
Plaintiff stresses that his performance evaluations demonstrate that he “was a fine officer, who showed ample respect for colleagues and superiors alike and was well respected by his peers.” (PL’s Mem. 18.) Yet the reviews provided to the Court only date through September 2009—before the incidents with O’Sullivan and Ludwig. (See Baity Aff. Ex. 1.) Moreover, a series of positive performance reviews that predate the incidents in question does not rule out the possibility that Plaintiffs performance may have changed during the months leading up to his termination. For all of these reasons, the Court finds that Plaintiff has not demonstrated a prima facie case that his termination was the result of discrimination.
b. Remaining McDonnell Douglas steps
If Plaintiff were able to demonstrate a prima facie case of discrimination, his claim would nonetheless fail to survive
If a defendant articulates a non-discriminatory reason, as Defendants have here, the presumption of discrimination drops out of the picture, and the plaintiff must show that the adverse employment decision more likely than not was motivated in whole or part by discriminatory reasons. See, e.g., Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (noting that, if the defendant can articulate a nondiscriminatory basis for the employment action, the burden returns to the plaintiff to show “by a preponderance of the evidence” that the defendant’s “proffered reason” for the adverse employment action was false); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.1996) (in the same instance, explaining that the plaintiff must show that, “more likely than not[,] [discrimination] was the real reason” for the employment action (second alteration in original)). “Moreover, although the presumption of discrimination drops out of the picture once the defendant meets its burden of production, the trier of fact may still consider the evidence establishing the plaintiffs prima facie case and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual.” Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (alteration in original) (citation and internal quotation marks omitted). The “Supreme Court’s decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” Olorode v. Streamingedge, Inc., No. 11-CV-6934, 2014 WL 1689039, at *12 (S.D.N.Y. Apr. 29, 2014) (emphasis and
Here, too, Plaintiff cannot meet his burden, as the record cannot support a finding that Defendants’ termination of Plaintiff was pretextual. Plaintiff concedes that the events that form the basis of Defendants’ justification for termination occurred, though he disputes some of the particulars of the events, specifically the behavior of the other individuals involved: Gowins, O’Sullivan, and Ludwig. None of these factual disputes is material, however, because none suggests that the interpretation of the Gowins incident, or the Mueller and Clark memoranda that support Plaintiffs termination were motivated by bias. As a preliminary matter, “an employee’s disagreement with her employer’s evaluation of her performance is insufficient to establish discriminatory intent.” Mattera v. JPMorgan Chase Corp., 740 F.Supp.2d 561, 576 (S.D.N.Y.2010) (internal quotation marks omitted). Moreover, even if the incidents involving Plaintiff and Gowins, O’Sullivan, and Ludwig occurred as Plaintiff suggests, “[t]he question is not whether defendant’s decision to fire plaintiff was correct, but whether it was discriminatory.” Jagmohan v. Long Island R.R. Co., No. 12-CV-3146, 2014 WL 4417745, at *11 (E.D.N.Y. Sept. 8, 2014); see also Oluyomi v. Napolitano, 811 F.Supp.2d 926, 947-48 (S.D.N.Y.2011) (noting that “any dispute as to what actually transpired [in an incident leading to the plaintiffs suspension], is not ‘material’ to the question of whether [the defendant’s] reasons for its actions against” the plaintiff was discriminatory, as “[t]he issue to be proven in a discrimination case is whether there was an improper motive for the employment decision — not whether any conduct relied upon by the employer actually occurred”), aff'd, 481 Fed.Appx. 693 (2d Cir.2012); Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F.Supp.2d 98, 111 (S.D.N.Y.2009) (“Where a plaintiff has been terminated for misconduct, the question is not ‘whether the employer reached a correct conclusion in attributing fault [to the plaintiff] ..., but whether the employer made a good-faith business determination.’ ” (alterations in original) (quoting Baur v. Rosenberg, Minc, Falkoff & Wolff, No. 07-CV-8835, 2008 WL 5110976, at *5 (S.D.N.Y Dec. 2, 2008))).
The absence of adequate comparators, as discussed above, makes it even more difficult for Plaintiff to demonstrate that he would have been treated differently if he had been a different race. Furthermore, there is no evidence of racial motivation in the record, apart from a few vague hearsay allegations that Plaintiff had been told that Clark “used the N word frequently,” though Plaintiff never heard Clark “say anything racially derogatory.” (Suss-man Aff. Ex. 4 (Excerpted Tr. of Dep. of PI. W. Terrell Baity (“Sussman Baity Tr.”)) 34; Baity Tr. 45.) Plaintiff claims to
III. CONCLUSION
For the reasons discussed above, Defendants’ Motion for Summary Judgment is granted. In addition, the Court dismisses the Complaint with respect to James F. Kralik in his individual capacity. The Clerk of the Court is respectfully requested to terminate the pending motion, (see Dkt. No. 26), enter judgment for Defendants, and close the case.
SO ORDERED.
. In Plaintiff's Rule 56.1 Response, he admitted to Defendants’ factual statements regarding this report, but noted that "this report is admitted for notice, not for the truth of whatever was stated as that is plainly hearsay.” (PL's 56.1 Resp. ¶¶ 50-51.) The Court notes that it is not considering any of the reports regarding the Gowins incident for the truth of what occurred between Plaintiff and Gowins, but rather for the fact that such reports were made.
. The Court notes that Plaintiff purports to deny this fact, however Plaintiff's response does not address the fact asserted by Defendants. (See Pl.’s 56.1 Resp. ¶ 77 ("Deny. CO Ludwig, who acted as a runner, called plaintiff and asked if he could see a specific inmate.”).) As discussed in section 1(A) above, the Court will interpret Defendants’ Rule 56.1 Statements that are not addressed by Plaintiff's denials as uncontested, as long as they are supported by facts in the record.
. While Plaintiff "den[ies this fact] as stated,” his response does not refute the assertion that both Mueller and King spoke with Plaintiff about his interaction with Ludwig. (See PL’s 56.1 Resp. ¶ 79 ("Deny as stated. Mueller [not King] was present at D & E wing [where plaintiff was], when the incident occurred.”) (alterations in original).) • However, Plaintiff’s testimony suggests that both King and Mueller "came to speak with [Plaintiff] about” the incident. (Baity Tr. 102 ("Q. This wasn’t just Lieutenant King, this was both of them? A. Yes. She sat him down to talk to me.”).)
.Defendants submit that both King and Mueller counseled Plaintiff about his conduct, (Defs.’ 56.1 ¶ 81; King Deck ¶ 13), though Plaintiff claims that King "said nothing in Baity’s presence about the matter and plaintiff never received counseling from anyone concerning the matter,” (PL’s 56.1 Resp. ¶ 81). However, Plaintiff testified that he was told to "let [Ludwig] finish what he was saying” and that his behavior was "unprofessional.” (Baity Tr. 102-03.)
. Plaintiff admits to the content of the memo, but denies Mueller’s characterization of their conversation, as explained above. (Pl.’s 56.1 Resp. ¶ 87.)
. In his deposition, Plaintiff admitted that Sheriff Kralik was not the individual who informed Plaintiff that his employment was being terminated and that this information was not relayed on June 30, 2010, as stated in paragraph 15 of Plaintiff's Complaint. (See Baity Tr. 108-09).
. Despite Plaintiff's purported denial of this fact in his Rule 56.1 Response, (Pl.'s 56.1 Resp. ¶ 157), Plaintiff does not cite to any evidence that contradicts Defendants' proposed fact. Rather, Plaintiff cites to a paragraph of Plaintiff's Affidavit in which he explains that probationary officers were warned "to miss as little timé as possible” and that Helchowski "developed a reputation for missing time,” though Plaintiff does not present admissible evidence to contradict Defendants’
. The Court notes that, while Plaintiff admits this fact, his 56.1 Statement Response does not directly pertain to this fact, but rather states that Plaintiff "[a]dmit[s] that Gutherie did not interpose any objection to Dillon’s being made permanent despite his having served a 74 day[] primarily unpaid suspension.” (See Pl.’s 56,1 Resp. ¶ 188.)
. The Complaint contains two paragraphs numbered "20,” but only the second of these describes the nature of this Action.
. Plaintiff makes this argument without citing a single case — either from within the Second Circuit or without. In fact, the only citations in this portion of Plaintiff’s Memorandum in Opposition are to portions of the Rockland County Code concerning indemnification, the "most significant! ]” of which is § 169-4, which provides that: "Any act or omission of any employee of the County in the Office of the Sheriff done or made in the performance of an official duty ... shall be the act or omission of the County, and the damages, if any, resulting therefrom shall be deemed the liability of the County of Rock-land.” (PL’s Mem. 9 (quoting County of Rockland Code § 169-4).) (Plaintiff did not provide the Code provisions along with its supplementary materials, but this provision is available at http://ecode360.com/9665296.) To the extent that Plaintiff argues that §§ 45-2 and 45-3 of the code, which explicitly provide for the indemnification of county employees, apply in this case, the Court rejects this argument in light of § 45-5 of the code, which provides that the indemnification provisions therein shall "inure only to employees as defined herein” and "shall not enlarge or diminish the rights of any other party.” (See Coun
. Moreover, Plaintiff has made no allegations whatsoever, nor has he identified any evidence, that would suggest municipal liability premised on a failure to train or supervise municipal employees, or deliberate indifference to discriminatory acts by employees. See Jeffes, 208 F.3d at 61-62 (noting that "municipal liability may be premised on the municipality's failure to train its employees where that failure to train reflects deliberate indifference to constitutional rights” (citations and internal quotation marks omitted)).
. Defendants note that, under New York State law, "a sheriff may appoint jailers, but only such jailers 'as may be authorized by the board of supervisors' ” and that "the sheriff cannot appoint more than one deputy for every three thousand inhabitants of the county" absent board authorization of additional deputy sheriffs. (See Defs.’ Supp. Letter 3 (quoting N.Y. County Law § 652).)
. The Court notes that Plaintiff's Counsel, Mr. Sussman, also served as counsel to the plaintiff in an earlier Jean-Gilles case. (See Jean-Gills v. County of Rockland, et al., No. 00-CV4861.) In the earlier case, Mr. Suss-man did not object to the court’s jury charge that "as a matter of New York State law, the County Executive is the final policymaker with regard to personnel matters relating to county employment” in Rockland County, but rather confirmed that the court’s charge “got everything right.” (See Jean-Gills v. County of Rockland, et al., No. 00-CV4861, July 29, 2004 Tr. 20, 31 (Weissman Decl. Ex. Z).)
. In fact, during his deposition, Plaintiff admitted that he had never spoken with Kralik, that Plaintiff had no basis to know whether Kralik had any input into the decision to terminate Plaintiff’s probation, and couldn't even identify Kralik as the predecessor to the current Sheriff, Louis Falco. (See Baity Tr. 27, 45, 110.)
. As Plaintiff’s counsel made clear, Plaintiff is not claiming a failure to train or to supervise. (See Sept. 12, 2014 Tr. 58.) Therefore, the Court will not address whether decisions made by Kralik’s supervisees can form a basis for Monell liability on behalf of the County.
. Several cases in the Second' Circuit since Nagle have considered the application of this theory to § 1983 claims, but ultimately dismissed the cases for other reasons without deciding whether cat’s paw liability applies. See Gomez v. City of New York, No. 12-CV-6409, 2014 WL 4058700, at *5, 6 n. 8 (S.D.N.Y. Aug. 14, 2014) (finding cat’s paw liability to be inapplicable because "there [was] no allegation that [individuals involved] acted as [the p]laintiff’s supervisors, or as agents of the decisionmakers” but not discussing cat’s paw in the context of municipal liability); Kregler v. City of New York, 987 F.Supp.2d 357, 367-69 (S.D.N.Y.2013) (declining to apply cat’s paw liability due to the "lack of precedent in the Second Circuit applying the cat’s paw theory of liability to the context of a § 1983 action, and the gulf between the facts in this case and the facts in a typical cat’s paw case for employer liability,” where there was an attenuated relationship between the decisionmaker and the bad actor and where the facts did not support animus that could be traced along the agency relationship); Monz v. Rocky Point Fire Dist., 853 F.Supp.2d 277, 288 n. 13 (E.D.N.Y.2012) (declining to extend cat’s paw liability in a § 1983 action as "the Second Circuit has yet to determine whether this ... is applicable in the context of § 1983 actions and the Court will not do so here,” where the plaintiff "did not explicitly argue this theory of liability,” and where “no facts were introduced to establish” the impermissible motive of the defendants whose motivation could be attributed to the employer under the cat’s paw theory (internal citation omitted)), aff'd, 519 Fed.Appx. 724 (2d Cir.2013).
. Again, there is no evidence in the record to support this contention, nor does Plaintiff articulate this chain of authority in his submissions to the Court or provide citations to the record that would support such an argument.
. Here, too, Plaintiffs aversion to citations renders Plaintiffs claim about drug and gun sales to inmates incredibly difficult to evaluate. The Court finds no reference in the record to individuals terminated for such activity; the only instances similar to those
. Furthermore, at oral argument, Plaintiff insinuated that Plaintiff was evaluated more frequently than other officers. (See Sept. 12, 2014 Tr. 40.) This assertion is contradicted by the record, which suggests that Plaintiff received a comparable number of evaluations as officers Enright and Heller. (Compare Baity Aff. Ex. 1 (Baity performance reviews), with Sussman Ex. 6 (Enright and Heller performance reviews). See Sept. 12, 2014 Tr. 53.)