Summary
dismissing retaliation claim where plaintiff was subjected to discipline before purported activity took place
Summary of this case from Ray v. WeitOpinion
No. 99 Civ. 1325 (VM) (MHD)
August 1, 2002
DECISION AND AMENDED ORDER
On February 23, 1999, Plaintiff Pierre Bazile (hereinafter "Bazile"), an officer of the New York City Police Department, filed this action, alleging, inter alia, that he was subjected to a hostile work environment and retaliation by defendants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (hereinafter "Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law § 290 (hereinafter "NYHRL"), as well as a denial of equal protection, in violation of 42 U.S.C. § 1983. The defendants, including the City of New York, the New York City Police Department (hereinafter the "NYPD"), Captain William Morris, Captain Jeffrey Behrens, Captain Charles Fries, Captain Stephen Donnelley, and Lieutenant Thomas Barry (hereinafter collectively, the "Defendants"), move for summary judgment, asserting that Bazile has not presented sufficient facts to raise a triable issue in support of his claims. On May 10, 2002, Magistrate Judge Michael H. Dolinger, to whom the matter had been referred for pretrial purposes and dispositive motions, issued a Report and Recommendation (hereinafter the "Report") which recommended the dismissal of Bazile's claims. A copy of the Report is attached hereto and incorporated herein. On May 29, 2002, Bazile filed objections to the Report, asserting that: (1) he presented evidence sufficient to establish an issue of material fact regarding his hostile work environment and retaliation claims; and (2) Magistrate Judge Dolinger improperly excluded the expert testimony of Michael Levine (hereinafter "Levine"). Having conducted a de novo review of the portions of the Report to which Bazile objects, the Court issued an Order on June 27, 2002 granting Defendants' motion for summary judgment and indicating that the Court's reasoning would be detailed in a subsequent Order. The June 27, 2002 Order is amended to incorporate the reasons set forth below as the basis for the Court's conclusion that Bazile failed to establish any genuine issues of material fact. Accordingly, the Court grants the Defendants' motion for summary judgment.
See 28 U.S.C. § 636 (b)(1)(B); U.S. v. Tortora, 30 F.3d 334, 337 (2d Cir. 1994) ("[A] judge of the court shall make a de novo determination of those portions of the report . . . or recommendations to which Objection is made.").
I. FACTUAL BACKGROUND
Bazile's claims arise from an incident on May 22, 1997, in which he shot a small pit bull in the lobby of an apartment building in Far Rockaway, Queens, and the subsequent disciplinary actions against him taken by the NYPD. The incident occurred while Bazile, an officer of the NYPD for four years, was off-duty working as a security guard. (See Dep. of Pierre Bazile, dated June 2, 2000 (hereinafter "Bazile Dep."), attached as Ex. 2 to the Declaration of Bryan D. Glass, dated June 27, 2000, (hereinafter the "Glass Decl."), at 43, 49-50.) Bazile discharged his gun eleven times as the dog approached him, and several bullets ricocheted, with one bullet striking Bazile in the face, and another lodging in the bicycle tire of a boy who had just entered the lobby. (See id. at 119-20.)
Because Bazile had discharged his revolver, a follow-up investigation was required. (See Letter from Maureen B. Godfrey, NYPD Law Intern to William Lai, Enforcement Supervisor, U.S. Equal Opportunity Commission (hereinafter "Godfrey Letter"), dated June 17, 1998, attached as Ex. L to the Glass Decl., at 2-3.) The NYPD conducted the investigation and later commenced disciplinary proceedings against Bazile. The investigation revealed that Bazile had violated several rules of the Patrol Guide Procedure, which governs the conduct of NYPD police officers. More specifically, two relevant provisions of the Patrol Guide Procedure provide that police officers shall not: (1) discharge their weapons when doing so will unnecessarily endanger innocent persons; or (2) discharge their firearms at a dog or other animal except to protect themselves or another person from physical injury and there is no other reasonable means to eliminate the threat. (See id. at 5.)
On September 30, 1997, the Discharge Review Board, which reviews all firearms discharges by NYPD police officers, concluded that Bazile had violated these guidelines. (See Letter of Findings and Recommendations from the Patrol Borough Queens South (hereinafter "P.B.Q.S.") Firearms Discharge Review Board Chairman to the Dep't Firearms Discharge Review Board Chairman, dated Sept. 30, 1997, attached as Ex. Q to the Godfrey Letter, at 1.) On December 2, 1997, the Chief of the NYPD concurred, and on March 31, 1998, Bazile was formally charged with violating the two provisions described above. (See Letter of Findings of Dep't Firearms Discharge Review Board, from the Chief of the Dep't to the Commanding Officer of the P.B.Q.S., dated Dec. 2, 1997, attached as Ex. C to the Glass Decl., at 1.)
Pending the completion of the investigation and the disciplinary proceedings, the NYPD placed Bazile on modified duty in the Brooklyn Court Section, and later on foot patrol in a unit he characterizes as predominantly comprised of minorities. (See Pl.'s Objections to Magistrate Dolinger's Report and Recommendation (hereinafter "Pl.'s Objections"), dated May 29, 2002, at 3.) Due to the nature of the incident and the unusual response of Bazile, the Discharge Review Board felt that it was necessary to require Bazile to be evaluated by NYPD Psychological Services. (See Dep. of Douglas Ziegler, dated May 15, 2000, attached as Ex. EE to the Glass Decl., at 19, 21-22, 49-50.) Bazile alleges that these actions by the Defendants were motivated by his race and national origin. (See Verified Am. Compl., dated Apr. 16, 1999, at ¶¶ 59, 63, 70, 78, 83.)
Bazile spoke with a reporter from the Daily News about his situation, which resulted in an article describing his long wait for formal charges to be filed. (See Gene Mustain, Probe Dogging Cop in Pitt Bull Shooting, Daily News, Dec. 21, 1997, attached to the Glass Decl. as Defs.' Ex. D (hereinafter "Daily News").) Bazile also sent a number of letters describing his situation to NYPD supervisors as well as to public officials. (See, e.g., Letter from the President of the Borough of Queens Claire Shulman to NYPD Commissioner Howard Safir, dated January 14, 1998, attached as Ex. F to the Glass Decl., at 1.) On January 20, 1998, Bazile filed a complaint with the Equal Employment Opportunity Commission (hereinafter the "EEOC"). His EEOC complaint focused exclusively on: (1) the length of his modified duty assignment in the Brooklyn Court Section; (2) an alleged unnecessary delay in the NYPD s investigation; and (3) the referral for a psychological evaluation. (See Pl.'s Compl., dated Feb. 23, 1999, at 15-17.) On November 30, 1998, the EEOC dismissed Bazile's complaint and sent him a right to sue letter stating, "there is no evidence supporting your contentions that the laws enforced by the [EEOC] were violated," and that "it is unlikely that the [EEOC] would find a violation if it invested additional resources in this matter." (See Letter from EEOC Enforcement Manager Harold F. Wilkes to Bazile, dated Nov. 30, 1998, attached as Ex. S to the Glass Decl., at 1.
II. BAZILE'S OBJECTIONS
Bazile objects to the Report in its entirety, claiming that it fails to address the majority of his factual allegations as well as the supporting evidence regarding the adverse employment actions that the Defendants took against him. Bazile first asserts that his Title VII hostile work environment and retaliation claims should not be dismissed on summary judgment because he presented evidence sufficient to establish issues of material fact. (See Pl.'s Objections at 2.) He further asserts that his hostile environment and retaliation claims under NYHRL and 42 U.S.C. § 1983 should not be dismissed on summary judgment for similar reasons. (See id. at 12.) Additionally, Bazile objects to the exclusion of Levine's expert testimony. (See id. at 6.) Having reviewed and considered Bazile's objections in light of the record before it, this Court concludes that all of Bazile's objections are meritless.
Bazile further objects to numerous findings of the Magistrate Judge. However, he fails to support his objections with evidence either that the NYPD's actions were motivated by race or national origin, or that his behavior qualified as protected activity. Therefore, the court need not consider these additional, unsubstantiated allegations. See F.R.C.P. 72(b) ("[A] party may serve and file specific, written objections to the proposed findings and recommendations.") (emphasis added).
III. DISCUSSION
A. HOSTILE WORK ENVIRONMENTIn the instant case, Bazile bases his hostile work environment claim on both his modified duty assignment in the Brooklyn Court Section and his current walking post assignment. To establish a claim for exposure to a hostile work environment under Title VII, a plaintiff must present sufficient evidence that he was subjected to discriminatory behavior sufficiently severe or pervasive to create a hostile or abusive working environment. See Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993) (quoting Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). The environment must be both objectively hostile or abusive in the eyes of a reasonable person and subjectively hostile in the eyes of the victim. See id. (quoting Meritor Sav. Bank, 477 U.S. at 64, 67).
Where alleged discriminatory conduct occurs prior to the filing of a charge with the EEOC, before commencing a Title VII suit the plaintiff must first exhaust his administrative remedies by presenting his claim to the EEOC within 300 days of the asserted violation. See 42 U.S.C. § 2000e-5; Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982); Legnani v. Alitalia, 274 F.3d 683, 686 (2d Cir. 2001) (citations omitted).
When a claim relates to conduct that arises subsequent to an EEOC filing, the Court may consider it only if it is "reasonably related" to the matters asserted in the EEOC charge. See Legnani, 274 F.3d at 686; Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993); see also Hall v. City of New York, No. 00 Civ. 8967, 2002 WL 472057, at *2 (S.D.N.Y. Mar. 27, 2002). In determining whether a claim stated in a judicial action is reasonably related to that alleged in an EEOC proceeding, courts "look not merely to the four corners of the often inarticulately framed charge, but also take into account the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Gomez v. Avco, 964 F.2d 1330, 1334 (2d Cir. 1992) (quoting Silver v. Mohasco, 602 F.2d 1083, 1090 (2d Cir. 1979)). The "reasonably related" doctrine does not cover a failure to include in the EEOC charge allegations of acts of discrimination which the plaintiff must have been aware of, and which arose prior to the filing of the administrative complaint. See Hall, 2002 WL 472057, at *4.
The Magistrate Judge extensively discussed the record with regard to this claim and recommended that Bazile's hostile environment claim be dismissed because Bazile failed to show that the conditions in both the Brooklyn Court Section and his current assignment rose to the level of a hostile work environment, and also because of Bazile's failure to comply with administrative exhaustion requirements. See Report at 56.) The Magistrate found that Bazile failed to offer any "evidence that even begins to focus on satisfying the applicable, and quite rigorous standards" to sustain a hostile work environment claim. (Id. at 62.) Furthermore, the Magistrate also found that Bazile failed to make any reference to his working conditions in either location in his EEOC complaint, other than that he was not on regular duty. (See id. at 57.) On the basis of its de novo review of the record in light of Bazile's objections, the Court concludes that Bazile's hostile work environment claim fails for The reasons set forth in the factual and legal analysis of the Report.
1. The Brooklyn Court Section
Bazile alleges that the hostile work environment he was subjected to in the Brooklyn Court Section was longstanding. (See Pl.'s Rule 56.1 Statement, dated Aug. 25, 2000, at ¶ 17.) Therefore, Defendants' alleged misconduct, of which Bazile was aware, includes actions which must have occurred prior to the filing of his January 20, 1998 EEOC complaint. (See Pl.'s Compl. at 15.) However, the EEOC complaint did not contain any claim of a hostile work environment. Bazile was moved to his current assignment on February 10, 1999 (see Pl.'s Rule 56.1 Statement at ¶ 1.) Bazile thus failed to file a hostile work environment claim with the EEOC within 300 days of the alleged violation as required under 42 U.S.C. § 2000e-5 (e)(1), and is procedurally barred from asserting such a claim in this Court. See Legnani v. Alitalia, 274 F.3d at 686.
Moreover, Bazile's EEOC charge asserted in precise and extensive detail matters relating to the extended modified duty and delays in the NYPD investigation. There is nothing in Bazile's allegations related to his assignment to the Brooklyn Court Section suggesting a pervasive, abusive environment upon which a rational trier of fact could find that he was subjected to a hostile work environment due to his race or national origin.
2. The Current Walking Post
On February 10, 1999, Bazile was transferred from the Brooklyn Court Section to his current walking post assignment. (See Pl.'s Rule 56.1 Statement at ¶ 1.) In the instant case, Bazile alleges that he is exposed to a hostile work environment in his current walking post, in addition to the hostile work environment that he was exposed to in the Brooklyn Court Section. Because Bazile was assigned to his current walking post after he filed his January 20, 1998 EEOC charge, he must demonstrate that this claim is reasonably related to the allegations that he asserted in the EEOC charge. See Legnani, 274 F.3d at 686; Butts, 990 F.2d at 1401. Claims are reasonably related to allegations asserted in an EEOC charge when such claims fall within the scope of the EEOC investigation and can reasonably be expected to grow out of the charge. See Butts, 990 F.2d at 1401-03.
Based on the information Bazile presented, it is highly unlikely that the EEOC would have investigated a hostile work environment claim. Bazile's complaint to the EEOC concerned only his lengthy modified duty assignment in the Brooklyn Court Section. He failed to suggest the existence of a hostile work environment anywhere in his EEOC charge. Because Bazile's current assignment is with an entirely different unit, and he did not mention a hostile work environment anywhere in his EEOC charge, the Court concludes that it is unlikely that the EEOC would have investigated such a charge on the basis of Bazile's EEOC filing, and that this claim is not reasonably related to any allegations in his EEOC charge. See Hall, 2002 WL 472057, at *4. Accordingly, he is procedurally barred from pursuing such a claim with this Court. See Legnani, 274 F.3d at 686.
Furthermore, even if Bazile had exhausted his administrative remedies, his hostile work environment claim would still fail. Bazile did not establish that his work environment was sufficiently severe and hostile to satisfy the requirements of a hostile work environment claim. His only evidence supporting this claim is that the Brooklyn Court Section assignment was viewed as undesirable, and chat at his current job he is teased by his fellow officers regarding the pitt bull. (Pl.'s Rule 56 Statement at ¶ 23.) These allegations are insufficient to satisfy the severe or pervasive standards of an objectively hostile or abusive work environment. See Harris, 510 U.S. at 21; Mentor Savings Bank, 477 U.S. at 67; see also Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999).
Bazile asserts that because he initially proceeded pro se, the Court should liberally construe his complaint, and therefore the administrative exhaustion requirement for his claims should be waived. (See Pl.'s Objections at 14-15.) However, while "district courts should read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest," proceeding pro se "does not exempt a party from compliance with relevant rules of procedural and substantive law." Sank v. City Univ. of New York, No. 94 Civ. 0253, 2002 WL 548744, at *6 (S.D.N.Y. Apr. 12, 2002) (citations omitted). For the foregoing reasons, the Court finds that Bazile failed to comply with the "procedural and substantive law" related to his hostile work environment claim. Id. As a result, his former status as a pro se plaintiff is immaterial.
B. RETALIATION
In order to support a claim of retaliation under Title VII, Bazile must establish that: (1) he engaged in protected activity; (2) his employer was aware of such participation; (3) an adverse employment action followed; and (4) a causal connection between the protected activity and the adverse employment action existed. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (quoting Cosgrove v. Sears, 9 F.3d 1033, 1039 (2d Cir. 1993)). Additionally, as discussed above, Bazile must exhaust his administrative remedies for claims arising prior to the filing of his EEOC complaint before making a retaliation claim in federal court. See Legnani, 274 F.3d at 686.
The Report concluded that Bazile's retaliation claim fails because Bazile failed to establish the requisite prima facie case. (See Report at 46-52.) More specifically, Bazile failed to establish that he had engaged in activity protected by Title VII. The article in the Daily News only described Bazile's long wait for formal charges to be filed, and made no mention of the alleged discrimination. (See id. at 42, 46.) Furthermore, the Report finds that Bazile offered no evidence that he made any complaints of discrimination to the reporter. (See id.) Bazile also offered no evidence that the Defendants knew of his participation in his alleged protected activity. (See id.) Finally, the Report found that Bazile did not establish a genuine issue of material fact as to whether the referral for a psychological evaluation was an adverse employment action. (See id. at 47-49.) On the basis of its de novo review of the record in light of Bazile's objections, the Court, essentially for the reasons set forth in the Report, rejects Bazile's objections.
1. Exhaustion
Bazile makes numerous claims of retaliation, some of which are barred due to his failure to exhaust his administrative remedies. Bazile's claim that his Brooklyn Court Section assignment was retaliatory is barred because it arose prior to his EEOC charge, and Bazile did not comply with the requirements of administrative exhaustion by pursuing this claim with the EEOC. See Legnani, 274 F.3d at 686. As Bazile is no longer assigned to this post, and 300 days have passed since he was transferred, he is procedurally barred from asserting this claim in this Court. See Zipes, 455 U.S. at 393. In contrast, because Bazile's EEOC charge contained allegations that the purpose of the NYPD psychological evaluation was to retaliate against him, this claim is not procedurally barred. Bazile asserts numerous other claims related to the NYPD's alleged retaliation, specifically including through: the filing of disciplinary charges; his conviction; the sanctions imposed; the denial of overtime; the refusal to approve off-duty employment; the failure to grant an integrity hearing; the suggestion of criminal charges; the denial of an OATH hearing; and his current walking post assignment. These claims are not barred by Bazile's failure to exhaust administrative remedies, as they all relate to NYPD actions taken after and within the scope of his EEOC charge. Thus, these claims would likely have been investigated by the EEOC and are reasonably related to the EEOC charge. See Butts, 990 F.2d at 1401; Legnani, 274 F.3d at 686.
The Office of Administrative Trials and Hearings is an office independent of the NYPD to which officers may bring complaints if they feel that a neutral trial cannot be held internally.
2. Merits
Bazile claims that the NYPD retaliated against him through the above actions because he discussed his case with a reporter from the Daily News, filed complaints with internal affairs, and requested help from public officials. (See Pl.'s Objections at 4.) To establish a prima facie case for retaliation under Title VII, Bazile must demonstrate that he engaged in some form of protected activity. See Gordon, 232 F.3d at 116. Protected activities include complaining about unlawful practices under Title VII, see 42 U.S.C. § 2000e-2 (a)(1), as well as testifying, assisting, or participating in an investigation, proceeding, or hearing pursuant to Title VII. See 42 U.S.C. § 2000e-3 (a). Bazile's communications with a reporter from the Daily News were not protected under Title VII. There is nothing in the resulting article that mentions discrimination based on race or national origin. (See Daily News.) The focus of the story is the long delay in the NYPD disciplinary proceedings relating to Bazile's conduct. Nor does Bazile himself allege that he spoke of discrimination based on race or national origin to the reporter. Therefore, his communication with the Daily News is not a protected activity under Title VII.
Only one of Bazile's communications with NYPD internal affairs and other public officials mentions a discriminatory motive behind the NYPD's actions. (See Letter from Bazile to Commanding Officer of the Brooklyn Court Section, dated June 28, 1998, attached as Ex. M to the Glass Decl., at 2.) To the extent that Bazile's complaints filed with NYPD internal affairs and communication with various public officials are protected, he has failed to demonstrate a causal connection between the protected activity and the alleged adverse employment actions. See Gordon, 232 F.3d at 116; Am. Compl. at ¶¶ 19-29; Pl.'s Objections at 3-6. Furthermore, the NYPD has offered a neutral, non-discriminatory explanation for its actions that is both plausible and reasonable. Bazile, working as an off-duty security guard, fired eleven shots in the lobby of an apartment building at a small, twenty-pound pit bull that was approaching without growling or barking. (See Def.'s Rule 56.1 Statement at 2-3.) While several of the bullets hit his intended target, others struck Bazile's own face and the bicycle tire of the boy entering the lobby. See id. Such actions demonstrated a plausible reason other than animus based on race or national origin for the NYPD's decisions to investigate and ultimately discipline Bazile. See, e.g., Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 443 (2d Cir. 1999). Bazile presents no evidence that the NYPD explanation was a pretext to conceal an unlawful discriminatory purpose.
NYHRL provides protections comparable to Title VII. Bazile's State human rights claims fail for the same reasons that his claims under Title VII fail. See Leopold v. Baccarat, 174 F.3d 261, 264 n. 1 (2d Cir. 1999). In this regard, the court agrees with the findings of the Report, and for these reasons rejects Bazile's State claims. (See Report at 65-66.)
C. SECTION 1983 CLAIMS
Under 42 U.S.C. § 1983, a plaintiff may recover on an equal protection claim if he is treated differently from other similarly situated employees due to his race or national origin. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). To prove such a claim, a plaintiff must establish that: (1) he was involved in a protected activity; (2) an adverse action was taken against him under color of state law; and (3) a causal connection exists between the two. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Where the plaintiff is a government employee, however, he must also demonstrate that the protected activity in which he was engaged related to a matter of general public interest as opposed to a personal grievance. See Waters v. Churchill, 511 U.S. 661, 668 (1994).
The Magistrate Judge reviewed Bazile's § 1983 claims and recommended that they be dismissed because Bazile failed to establish the prima facie case. (See Report at 45, 52-55.) The Court agrees, essentially for the reasons set forth in the Report. As a government employee, Bazile's speech was not a form of protected activity unless it pertained to a matter of public interest. See Waters, 511 U.S. at 668. The article in the Daily News referred only to Bazile's own complaints regarding his particular employment dispute, and his dissatisfaction with his assignment; it did not report any statements by Bazile concerning a matter of general public interest. Bazile's speech, therefore, did not qualify as protected activity for the purposes of § 1983. (See Report at 53.) Moreover, even if Bazile's claims did present a matter of public interest, they did not include any complaints of employment actions sufficiently adverse to set out a claim under § 1983. Accordingly, the Court rejects Bazile's objections and grants judgment dismissing his § 1983 claim.
D. EXPERT TESTIMONY
Finally, Bazile objects to the exclusion of Levine's expert testimony about the internal disciplinary procedures of the NYPD and the discriminatory nature of the NYPD's actions in Bazile's case. (See Pl.'s Objections at 6.) Bazile asserts that the Magistrate Judge improperly applied the factors of the test delineated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), when he determined that Levine's testimony was inadmissible. (See Pl.'s Objections at 7.) Under Daubert, a court may consider a number of factors before it admits expert opinion testimony. Such factors include whether: (1) the theory on which the expert relies has been tested; (2) the theory has been subject to peer review or publication; (3) the actual or potential rate of error of the theory when applied is known; (4) standards exist and are maintained to govern the theory's operation; and (5) the theory has been generally accepted by the expert community. See id. at 593-94.
While Daubert dealt specifically with scientific expert testimony and declined to address technical or other specialized knowledge, see id. at 590 n. 8, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court held that Daubert's general holding setting forth the trial judge's general "gatekeeping" obligation applies not only to testimony based on "scientific" knowledge, but also to testimony based on "technical" and "other specialized" knowledge. Id. at 144. Furthermore, the factors set forth in Daubert do not constitute a "definitive checklist or test," id. at 150 (quoting Daubert, 509 U.S. at 593), and this "gatekeeping inquiry must be tied to the facts of a particular case," Daubert, 509 U.S. at 591 (quoting U.S. v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985) (internal quotations omitted)
In deciding if particular testimony is reliable, "the nature of the issue, the expert's particular expertise, and the subject of his testimony" must be considered. Kumho Tire, 526 U.S. at 150. First, the court must determine whether the testimony rests on a reliable foundation, or whether the expert's testimony is "more than subjective belief or unsupported speculation." Daubert, 509 U.S. at 590. Second, the testimony must be relevant in that it "fits" the facts of the case. Id. at 591-92. Finally, it must "assist the trier of fact to understand the evidence or determine a fact in issue." Id. at 580; Fed.R.Evid. 702.
The Magistrate Judge analyzed Bazile's claims regarding the admissibility of Levine's testimony and concluded that it was inadmissible because Levine lacked the necessary qualifications to comment on the methods used by the NYPD to investigate a firearm discharge and to assess the existence of a discriminatory animus behind their actions. (See Report at 39-40.) The Magistrate Judge found that Levine was simply offering his own opinion regarding the relative credibility of the testimony by Bazile and the NYPD officers. (See id. at 40.) Having reviewed the matter de novo, the Court concludes that, for the reasons set forth in the Report's findings, Levine's testimony is not admissible under the standards articulated by Daubert and Kumho Tire.
In the instant case, Bazile seeks to introduce Levine's testimony to establish that the NYPD's actions were motivated by a discriminatory animus. On the basis of its review of Levine's qualifications, the Court finds that Levine lacks the necessary experience and qualifications to testify on this matter. (See Resume of Levine, Pl.'s Ex. 1-A.) Although he does have experience in drug enforcement and in supervision of law enforcement personnel, he has none in conducting internal disciplinary investigations, such as the one involved in the instant case which took place in a large public agency like the NYPD. (See id.) He also has no particular expertise that would qualify to assess whether a discriminatory animus motivated the NYPD in this case. (See id.) Therefore, his testimony is not only based on subjective belief, but also does not fit the facts of the case. See Daubert, 509 U.S. at 590. Levine's testimony does not rely upon any theory related to discriminatory motivations, nor are there any standards which control the operation of his opinions. See Id. at 591-92. The Court finds that his conclusions will be of little value to the finder of fact. The average jury can assess whether or not the NYPD acted with a discriminatory animus without the assistance of Levine's testimony. See Fed.R.Evid. 702; Daubert, 509 U.S. at 591.
III. CONCLUSION AND ORDER
For the reasons set forth above, it is hereby
ORDERED that the June 27, 2002 granting Defendants' summary judgment in this action is amended to incorporate the discussion set forth above, and it is finally
ORDERED that the Defendants' motion for summary judgment is GRANTED.
The Clerk of the Court is directed to close this case.
SO ORDERED.