Full opinion text
ORDER FEUERSTEIN, District Judge. Before the Court are objections by defendants Village of Rockville Centre (“the Village”), the Rockville Centre Police Department (“the RVCPD”) and John P. McKeon (“McKeon”) (collectively, “the Village defendants”) and Brian Burke (“Burke”) to so much of a Report and Recommendation of United States Magistrate Judge E. Thomas Boyle dated August 5, 2009 (“the Report”) that recommends denying in part their respective motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, the Report of Magistrate Judge Boyle is accepted in its entirety. I Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See, Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See, Fed. R.Civ.P. 72(b); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y.2004), aff'd, 125 Fed.Appx. 374 (2d Cir.2005); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). II The Village defendants contend that Magistrate Judge Boyle erred, inter alia, in: (1) overlooking “certain undisputed facts” occurring after February 13, 2003, (Memorandum of Law in Support of the Village Defendants Objections [Vill. Obj.], p. 2); (2) misapplying the summary judgment standard, (Vill. Obj., p. 4); (3) misapplying the standard to establish a prima facie case of retaliation, (Vill. Obj., p. 6); (4) finding a question of fact regarding the individual liability of McKeon under 42 U.S.C. § 1983 absent evidence of McKeon’s personal involvement in the alleged violations of plaintiffs First Amendment rights, (Vill. Obj., pp. 14-15); (5) denying McKeon’s qualified immunity defense absent “particularized evidence” that McKeon uttered any statements or expressions which would indicate a retaliatory motive, (Vill. Obj., pp. 16-17); (6) failing to apply the test to establish a prima facie case for First Amendment retaliation under 42 U.S.C. § 1983, (Vill. Obj., pp. 17-22); (7) recommending that a claim for “employment discrimination” against McKeon pursuant to 42 U.S.C. § 1983 remains absent specification of the alleged constitutional violation underlying that claim, (Vill. Obj., pp. 22-23); and (8) recommending that the branch of the Village defendants’ motion seeking summary judgment dismissing plaintiffs claim against McKeon pursuant to 42 U.S.C. § 1981 be denied since, inter alia, plaintiff has not established that McKeon was personally involved in any of the alleged discriminatory acts and, in any event, cannot establish a causal connection between McKeon’s acts in or before February 2003 and his termination in August 2003, (Vill. Obj., pp. 23-25). Burke contends, inter alia, that Magistrate Judge Boyle erred, inter alia, in: (1) failing “to address the temporal connection of the alleged conduct and the alleged adverse employment action,” (Burke’s Objection to the Report [Burke Obj.]); (2) failing “to assess BURKE’S supervisory role in relation to his authority to terminate Plaintiffs employment,” since only McKeon had the authority to terminate plaintiff, (id.); and (3) denying the branch of Burke’s motion to dismiss plaintiffs First Amendment retaliation claim because, inter alia, plaintiffs complaints about Burke’s behavior do not constitute “protected speech,” (id). Upon de novo review of the Report and consideration of the Village defendants’ and Burke’s objections and plaintiffs responses thereto, the objections are overruled and the Report is accepted in its entirety as an order of the Court. III. Conclusion Upon de novo review of the Report, the Village defendants’ and Burke’s objections are overruled and the Report is accepted in its entirety. The motion of defendant Nassau County Civil Service Commission (“CSC”) seeking summary judgment dismissing plaintiffs complaint against it is granted and the complaint is dismissed in its entirety as against the CSC. The branches of the Village defendants’ and/or Burke’s motions seeking summary judgment dismissing plaintiffs (1) Title VII claims against McKeon in both his individual and official capacities; (2) 42 U.S.C. §§ 1981 and 1983 employment discrimination claims against McKeon and Burke in their official capacity; (3) Monell and employment discrimination claims pursuant to 42 U.S.C. §§ 1981 and 1983 against the Village and the RVCPD; (4) 42 U.S.C. § 1983 due process claims against all defendants; (5) Title VI claims in their entirety; and (6) breach of contract claims against the Village defendants are granted and those claims are dismissed with prejudice. The branches of the Village defendants’ and/or Burke’s motions seeking summary judgment dismissing plaintiffs (1) Title VII retaliation claim against the Village and the RVCPD; (2) New York State Human Rights Law, N.Y. Exec. Law § 296, claim against the Village defendants and Burke; (3) 42 U.S.C. §§ 1981 and 1983 employment discrimination claims against McKeon and Burke in their individual capacity; and (4) First Amendment retaliation claims against the Village defendants and Burke are denied. In addition, all claims against the RVCPD are sua sponte dismissed. SO ORDERED. REPORT AND RECOMMENDATION E. THOMAS BOYLE, United States Magistrate Judge. TO THE HONORABLE SANDRA J. FEUERSTEIN, UNITED STATES DISTRICT JUDGE: Plaintiff, Mike H. Carmody (“plaintiff’ or “Carmody”), commenced this action on October 20, 2005, alleging employment discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., Title VI, 42 U.S.C. § 2000d et seq., 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq., as well as breach of contract, pursuant to New York state law. Specifically, plaintiff alleges that his employment was terminated in retaliation for his opposition to discriminatory practices within the Rockville Centre Police Department. Before the Court are three separate motions for summary judgment by the following defendants: (1) the Village of Rockville Centre (the “Village”), the Rockville Centre Police Department (“RVCPD”), and John P. McKeon (“McKeon”) (collectively referred to as the ‘Village Defendants”); (2) Sergeant Brian Burke (“Burke”); and, (3) the Nassau County Civil Service Commission (the “CSC”). For the following reasons, I recommend that the Village Defendants’ and Sergeant Burke’s motions be granted in part and denied in part and that the CSC’s motion be granted in its entirety. Facts I. The Parties Plaintiff is a thirty-five year old white male who was formerly employed as a probationary police officer for the RVCPD. (Village Def. R. 56.1 Statement (“Village 56.1”) ¶¶ 1-2; Def. Burke R. 56.1 Statement (“Burke 56.1”) ¶ 1; Def. CSC R. 56.1 Statement (“CSC 56.1”) ¶ 1.) Defendant McKeon was the Commissioner of the RVCPD during plaintiffs employment there and remains in that position today. (Burke 56.1. ¶ 1; CSC 56.1 ¶¶ 7-8.) Defendant Burke is a sergeant with the RVCPD. (Burke 56.1 ¶ 2.) During plaintiffs employment with the RVCPD, Burke had a general supervisory role with respect to all police officers employed there. (Burke 56.1 ¶ 2.) Burke was also plaintiffs direct supervisor from January 15, 2003 until approximately February 15, 2003. (Burke 56.1 ¶ 3.) Burke did not have any direct supervision with respect to plaintiff after February 15, 2003. (Burke 56.1 ¶ 19; Burke Dep. 210-11.) The Nassau County CSC is an agency responsible for establishing, maintaining and certifying civil service eligibility lists and for verifying that competitive class appointments are made in accordance with New York Civil Service Law. (CSC 56.1 ¶ 15.) The CSC consists of three Commissioners, an Executive Director, and specialized divisions, which include the Placement Division. (CSC 56.1 ¶ 10.) The Commissioners of the CSC possess sole authority to determine whether an applicant or candidate may be reinstated to an eligible civil service list. (CSC 56.1 ¶ 16.) II. Plaintiffs Employment with the RVCPD Plaintiff began working for the RVCPD as a probationary police officer on March 22, 2002. (Village 56.1 ¶ 2; Burke 56.1 ,¶ 5; CSC 56.1 ¶ 2.) Pursuant to the RVCPD Rules and Regulations in effect at the time plaintiff commenced his employment, new police officers were required to complete an eighteen-month probationary period. (Village 56.1 ¶ 3; Burke 56.1 ¶ 5; CSC 56.1 ¶ 3; CSC Ex. GG.) Accordingly, plaintiffs probationary period ran from March 2002 to September 2003. (Village 56.1 ¶ 4; CSC 56.1 ¶ 3.) On or about May 23, 2002, plaintiff received certain employment-related materials from the RVCPD as part of his training, including the RVCPD Rules and Regulations. (Village 56.1 ¶ 9; Burke 56.1 ¶ 6.) Also included in these materials was the RVCPD’s non-discrimination, non-harassment and non-retaliation policy, which plaintiff received and was trained on by Sergeant Roby Johnson (“Johnson”). (Village 56.1 ¶ 12; Burke 56.1 ¶ 6; Village Def. Ex. W.) On October 30, 2003, plaintiff signed a form acknowledging that he had read and understood this policy. (Village 56.1 ¶ 12; Burke 56.1 ¶ 6; Village Def. Ex. X.) The Rules and Regulations of the RVCPD in effect during the course of plaintiffs employment permitted the Commissioner to terminate any probationary police officer, without a hearing, if the “conduct, services, performance of duty, physical condition, or health [of the probationary police officer] be[came]unsatisfactory at any time during the probationary period.” (Village 56.1 ¶ 16; Burke 56.1 ¶ 7; Village Def. Ex. U.) The RVCPD Rules and Regulations further provided that probationary police officers who did not complete the probationary period, “may be disciplined or discharged by the Village in its sole discretion without recourse to the grievance and arbitration provisions contained in the contractual agreement between the Village and the Police Benevolent Association.” (Village 56.1 ¶8; Burke 56.1 ¶7; Village Def. Ex. U. ) On May 23, 2002, plaintiff acknowledged receiving a copy of the RVCPD Rules and Regulations. (Village Def. Ex. V. ) From March 22, 2002 to January 15, 2003, plaintiff was supervised by Sergeant Charles Gennario (“Gennario”). (Burke 56.1 ¶ 8; McKeon Dep. 20.) On June 19, 2002, plaintiff effected a vehicle stop of an individual named Jerry Zwecher (“Zwecher”), an African-American college student visiting family in the Village. (Village 56.1 ¶ 28.) Plaintiff observed Zwecher make a left hand turn at a red light, at which point he proceeded to follow the vehicle. (Village 56.1 ¶ 28; Village Def. Ex. BB.) When Zwecher’s vehicle came to a stop, Zwecher and his three passengers emerged and fled on foot. (Village 56.1 ¶ 28; Village Def. Ex. BB.) Plaintiff pursued the individuals and was able to apprehend Zwecher. (Village 56.1 ¶28; Village Def. Ex. BB.) Zwecher initially resisted arrest but plaintiff was ultimately able to subdue him. (Village 56.1 ¶ 28; Village Def. Ex. BB.) However, the other three occupants of the vehicle returned, demanding that plaintiff release Zwecher, and would not desist when instructed to do so by plaintiff. (Village 56.1 ¶ 28; Village Def. Ex. BB.) As a result, plaintiff radioed for assistance, to which Sergeant Roby Johnson responded. (Village 56.1 ¶ 28.) While radioing for assistance, plaintiff was unable to maintain his hold on Zwecher, at which point Zwecher broke free and fled with the other three occupants of the vehicle. (Village 56.1 ¶28; Village Def. Ex. BB.) When Sergeant Johnson arrived, he observed a large crowd cursing and taunting plaintiff. (Village 56.1 ¶ 28; Village Def. Ex. CC.) Johnson instructed plaintiff to return to his patrol car and decided not to pursue Zwecher and the other three individuals. (Village 56.1 ¶28; Village Def. Ex. BB, CC.) Later that night, Zwecher’s mother filed a written complaint at the RVCPD, alleging that plaintiff had “grabbed” her son during the traffic stop. (Village 56.1 ¶ 29; Village Def. Ex. DD.) Sergeant Johnson informed Zwecher’s mother that her son would need to file any complaint himself. (Village 56.1 ¶29; Village Def. Ex CC, DD.) On June 24, 2002, Zwecher wrote two letters, the first to Village Mayor Eugene Murray and the second to the RVCPD, alleging that on June 19, 2002, he was “a victim of unnecessary use of force and physical aggression” by plaintiff. (Village Def. Ex. EE.) According to Zwecher, while operating his vehicle, he was followed by plaintiff and, concerned that this might be a “profiling situation,” took care to signal correctly. (Village 56.1 ¶ 30; Village Def. Ex. EE.) Zwecher alleged that after parking his car, plaintiff approached him and grabbed him by the throat “without any explanation or reason,” swinging him by the neck “like some type of dog.” (Village 56.1 ¶ 30; Village Def. Ex. EE.) Zwecher further alleged that when he refused to provide plaintiff with his identification, plaintiff continued “swinging” him and cursing at him. (Village 56.1 ¶ 30; Village Def. Ex. EE.) Zwecher demanded that plaintiff be “properly reprimanded.” (Village 56.1 ¶ 30; Village Def. Ex. EE.) Lieutenant Richard Fantry conducted an investigation into Zwecher’s allegations. (Village 56.1 ¶ 31; Village Def. Ex. FF, GG.) However, Zwecher was unwilling to assist in Fantry’s investigation, repeatedly ignoring Fantry’s requests to provide a formal statement as well as the names and contact information of witnesses to the alleged altercation with plaintiff. (Village Def. Ex. FF.) On September 11, 2002, Zwecher filed a notice of claim with the Village regarding the June 19, 2002 incident with plaintiff. (Village 56.1 ¶ 32; Village Def. Ex. HH.) On September 23, 2002, an individual named Edwina Mooney (“Mooney”) wrote to Mayor Murray, complaining that plaintiff and her son, Charles Parsley (“Parsley”), were involved in an altercation earlier that day wherein plaintiff alleged that Parsley spit on his patrol car and “disrespected him.” (Village 56.1 ¶37; Village Def. Ex. MM.) Mooney alleged that plaintiff thereafter “followed [her] son onto [her] property making threatening comments.” (Village 56.1 ¶ 37; Village Def. Ex. MM.) Lieutenant Dennis Marcel investigated Mooney’s complaint but despite repeated attempts to interview Mooney, she failed to keep any of her appointments. (Village 56.1 ¶38; Village Def. Ex. NN.) By memorandum dated October 9, 2002, Marcel advised McKeon that he found no wrongdoing by plaintiff. (Village 56.1 ¶ 38; Village Def. Ex. NN.) On November 1, 2002, an individual named Alan Koval (“Koval”) also filed a complaint against plaintiff with the RVCPD. (Village 56.1 ¶ 33; Village Def. Ex. II.) In his complaint, Koval alleged that while posting flyers at the Village railroad station on September 30, 2002, he was approached by plaintiff, who was in plain clothes and ordered Koval to stop posting flyers. (Village 56.1 ¶ 33; Village Def. Ex. II.) Koval further alleged that plaintiff never identified himself as a police officer. (Village 56.1 ¶ 33; Village Def. Ex. II.) Koval alleged that as he began to walk away, plaintiff attempted to take the flyers from him and began “pushing and shoving [Koval], practically wrestling [him] to the ground.” (Village 56.1 ¶ 33; Village Def. Ex. II.) Thereafter, Police Officer Romance approached and identified himself and plaintiff as police officers. (Village 56.1 ¶ 33; Village Def. Ex. II.) Koval alleged that he offered to take down the flyers but was issued a desk appearance nonetheless. (Village 56.1 ¶ 33; Village Def. Ex. II.) An investigation conducted by Lieutenant Richard Fantry (“Fantry”) found that there was no evidence to substantiate Koval’s claims and that no disciplinary action against plaintiff was warranted. (Village 56.1 ¶ 36; Village Def. Ex. LL.) Due to a change in the structure of shifts within the RVCPD, plaintiffs employment shift was changed on or about January 15, 2003, bringing him under Sergeant Burke’s supervision. (Village 56.1 ¶ 39; Burke 56.1 ¶ 11; McKeon Dep. 20.) Plaintiff worked his first tour under Burke’s supervision on or about January 22, 2003. (Burke 56.1 ¶ 11.) During that first tour, plaintiff conducted a vehicle stop of Joseph W. DeFelice (“DeFelice”) and radioed his location to the desk officer on duty at the time. (Village 56.1 ¶ 40-41.) Officer James Giovanello (“Giovanello”) heard plaintiffs radio transmission and proceeded to plaintiffs location. (Village 56.1 ¶ 42; Giovanello Dep. 32-33.) Plaintiff was standing at the door of DeFeliee’s vehicle when Giovanello arrived. (Village 56.1 ¶ 42; Giovanello Dep. 34.) Plaintiff asked DeFelice whether he had been drinking. (Village 56.1 ¶42; Giovanello Dep. 35.) Plaintiff then instructed DeFelice to exit the vehicle and walk towards the back of it. (Village 56.1 ¶ 42; Giovanello Dep. 35.) Plaintiff then asked DeFelice to recite the alphabet, which DeFelice was unable to do correctly. (Village 56.1 ¶ 42; Giovanello Dep. 37.) Giovanello did not observe plaintiff conduct any other parts of the standardized field sobriety test on DeFelice — specifically, the walk-and-turn test, the one-legged stand and the horizontal gaze nystagmus. (Village 56.1 ¶ 42; Giovanello Dep. 39, 85, 91-95.) Sergeants Burke and Johnson also heard plaintiff’s radio call regarding his vehicle stop of DeFelice and proceeded to plaintiffs location as well. (Village 56.1 ¶43; Burke Dep. 148, 150-51; Johnson Dep. 22.) When they arrived, Burke approached plaintiff, who was sitting in his vehicle, completing paperwork. (Village 56.1 ¶43; Burke Dep. 152-54; Johnson Dep. 23-24.) Plaintiff advised Burke that DeFelice had sped past him and that plaintiff was going to issue him a summons. (Village 56.1 ¶ 43; Burke Dep. 154-55.) DeFelice was still in his vehicle at this point and plaintiff had not yet conducted any sobriety tests. (Village 56.1 ¶ 43.) Burke then returned to his vehicle and drove across the street to a parking lot where he and Johnson observed plaintiff conduct the rest of the vehicle stop. (Village 56.1 ¶ 43; Burke Dep. 159; Johnson Dep. 25.) Burke and Johnson observed plaintiff approach DeFelice’s vehicle and saw DeFelice exit the vehicle, at which time he was handcuffed by plaintiff. (Village 56.1 ¶ 43; Burke Dep. 165-66; Johnson Dep. 25-27.) Neither Burke nor Johnson observed plaintiff perform any of the standardized field sobriety tests. (Burke Dep. 183-84; Johnson Dep. 27; Burke Reply Ex. A.) Following DeFelice’s arrest, plaintiff completed the Nassau County field sobriety test form. (Village 56.1 ¶ 44.) Plaintiff indicated on the form that he conducted the walk-and-turn test, the one-legged-stand and the horizontal gaze nystagmus. (Village 56.1 ¶ 44; Village Def. Ex. 00.) Plaintiff also completed the Nassau County D.W.I. Supporting Deposition and Bill of Particulars form with respect to DeFelice’s arrest. (Village 56.1 ¶ 45.) Under Section four of the form, entitled “Probable Cause to Arrest,” plaintiff indicated that he conducted the following field sobriety tests: (1) reciting the alphabet; (2) one leg stand; (3) gaze nystagmus; and, (4) finger to nose. (Village 56.1 ¶ 45; Village Def. Ex. 00.) Plaintiff did not check off the box to indicate that he conducted the walk and turn test. (Village 56.1 ¶ 45; Village Def. Ex. 00.) Burke reviewed plaintiff’s paperwork in connection with the DeFelice vehicle stop and subsequent arrest and submitted it to Lieutenant Dennis Marcel. (Village 56.1 IT 46; Burke Dep. 184.) However, Burke refused to sign off on plaintiff’s paperwork because it indicated that plaintiff performed certain field sobriety tests that Burke did not observe take place. (Village 56.1 ¶ 46; Burke Dep. 183-84.) By email dated February 4, 2003, Burke advised Marcel that he had “some concerns” regarding the sobriety field tests indicated to have been conducted in plaintiffs paperwork, such that he was “of the opinion that the testing was not conducted prior to arrest.” (Village Def. Ex. PP.) According to Burke, he arrived at plaintiffs location approximately four minutes after plaintiff conducted the vehicle stop of DeFelice’s automobile, remaining for the duration of the stop, and did not observe the indicated testing having been performed. (Village Def. Ex. PP.) As a result, Burke “declined to sign off on the report.” (Village Def. Ex. PP.) Plaintiff was not disciplined in any way in connection with this incident. (McKeon Dep. 131.) III. Allegations of Plaintiff’s Misconduct and Commissioner McKeon’s Investigation On January 30, 2003 — approximately one to two weeks after becoming plaintiffs direct supervisor — Burke emailed Commissioner McKeon and requested that McKeon “give consideration” to plaintiffs probationary period. (Village 56.1 ¶ 47; McKeon Dep. 15; Burke Dep. 79-81; Village Def. Ex. QQ.) In his email, Burke recommended that plaintiff “[did] not meet the appropriate level of standards expected and demanded of a probationary police officer in the [RVCPD].” (Village Def. Ex. QQ.) Burke further recommended that plaintiff was “not adequately trained for the patrol function ... and thus ... should be removed from independent patrol.” (Village Def. Ex. QQ.) Burke requested that plaintiff “not be certified upon completion of his probationary period” and that “termination of his employment be strongly considered.” (Village Def. Ex. QQ.) This was the first time McKeon had received any internal complaints regarding plaintiffs conduct. (McKeon Dep. 49.) McKeon conducted an investigation into Burke’s allegations, which included speaking directly to Burke, Sergeant Johnson and Police Officer Giovanello, who were present during plaintiffs arrest of DeFelice. (McKeon Dep. 16.) McKeon also directed Lieutenant Fantry to interview all of the sergeants within the RVCPD regarding their impressions of plaintiff. (Village 56.1 ¶48; Burke 56.1 ¶ 16; McKeon Dep. 16.) In addition, McKeon asked Lieutenant Marcel about the next start date for the Nassau County Police Department Academy. (Village 56.1 ¶ 48; Village Def. Ex. SS.) A. Sergeant James Vafeades By email dated January 30, 2003, Sergeant James Vafeades (“Vafeades”) advised Lieutenant Fantry that he had never supervised plaintiff and therefore all of his impressions of plaintiff were formed as a result of working alongside plaintiff when Vafeades was a patrol officer. (Village 56.1 ¶ 49; Village Def. Ex. TT.) In Vafeades’ opinion, plaintiff had “yet to find his place” in the RVCPD and had not attempted to “fit in.” (Village Def. Ex. TT.) Vafeades stated that he knew other members of the RVCPD had spoken to plaintiff in an attempt to provide some guidance but that he had overheard plaintiff make remarks about how he was not going to change. (Village Def. Ex. TT.) Vafeades also recounted an instance in which he overheard plaintiff remark “just wait for me to get off of probation, they haven’t seen anything yet.” (Village Def. Ex. TT.) Vafeades also stated that he was concerned because other officers had indicated to him that they did not want to work with plaintiff. (Village Def. Ex. TT.) However, Vafeades felt that “with some training,” plaintiff could “eventually become a productive member of the force.” (Village Def. Ex. TT.) Ultimately, Vafeades stated that he supported the idea of sending plaintiff to the Nassau County Police Academy for training “in an attempt to educate him and help his adaptation to [the RVCPD].” (Village Def. Ex. TT.) B. Sergeant Kenneth Schaefer Sergeant Kenneth Schaefer’s (“Schaefer”) email, dated January 31, 2003, advised Lieutenant Fantry that although Schaefer had not experienced any problems with plaintiff himself, he “[had] heard negative comments about [plaintiff] from other supervisors and officers.” (Village 56.1 ¶ 50; Village Def. Ex. UU.) One example Schaefer provided was when he was scheduling DWI enforcement, he was informed by several officers that “they would pass on the overtime if it meant working with [plaintiff].” (Village Def. Ex. UU.) Schaefer admitted that his opinion was based on hearsay, but stated that “[i]f even only a small percentage of the incidents [he had heard about] were factual,” they presented, “at the very least ... a training issue with [plaintiff] that need[ed] to be addressed.” (Village Def. Ex. UU.) C. Sergeant Kevin P. O’Toole Sergeant Kevin P. O’Toole’s (“O’Toole”) email, dated January 31, 2003, detailed his “observations and interactions” with plaintiff. (Village 56.1 ¶ 51; Village Def. Ex. W.) As O’Toole explained in his memo, he first met plaintiff after being informed by plaintiffs father-in-law, Thomas Garrity, that plaintiff was seeking to leave the New York City Police Department and was on the Nassau County civil service list. (Village 56.1 ¶ 51; Garrity Dep. 30, annexed as Village Def. Ex. L; Village Def. Ex. W.) O’Toole met with plaintiff and found that he was “a respectful, eager and intellegent [sic] police officer with an outstanding background with the New York City Police Department.” (Village 56.1 ¶ 51; Village Def. Ex. W.) O’Toole submitted plaintiffs resume to McKeon and plaintiff was hired shortly thereafter. (Village 56.1 ¶ 51; Village Def. Ex. W.) Although O’Toole’s interactions with plaintiff while both were employed with the RVCPD were “limited,” O’Toole heard several members of the RVCPD make unfavorable comments “regarding [plaintiffs] attitude and his dealings with the public. (Village 56.1 ¶52; Village Def. Ex. W.) O’Toole’s impression of plaintiff changed as well after plaintiff joined the RVCPD, in that O’Toole observed plaintiff be disrespectful to both O’Toole himself as well as other supervisors. (Village Def. Ex. W.) O’Toole described plaintiff as “outspoken” with a “know it all attitude,” which O’Toole found to be a “marked difference” from the other seven New York City Police Department transfers the RVCPD had hired. (Village Def. Ex. W.) In addition, O’Toole described an incident that occurred on October 17, 2002, in which plaintiff radioed that he had been involved in a motor vehicle accident. (Village 56.1 ¶ 53; Village Def. Ex. W.) O’Toole responded to plaintiffs location and observed a significant amount of damage to the left front end of plaintiffs vehicle, which was caused when the vehicle struck a concrete block supporting a light pole. (Village 56.1 ¶ 53; Village Def. Ex. W.) Plaintiff informed O’Toole that he had swerved in an effort to avoid hitting another vehicle that was backing out of a parking spot and ended up striking the light pole. (Village Def. Ex. W.) O’Toole stated that, based on his own observations of the scene, plaintiffs version of events “did not appear to be a factual account of the accident.” (Village Def. Ex. W.) Sergeant Gennario arrived at the scene shortly thereafter and, after some discussion, Gennario and O’Toole agreed that the accident was not caused by another vehicle, as plaintiff had advised. (Village Def. Ex. W.) Gennario issued plaintiff a white card for the incident. (Village 56.1 ¶ 53.) D. Lieutenant Glenn Quinn By email dated January 31, 2003, Lieutenant Glen Quinn (“Quinn”) advised Lieutenant Fantry that although he had “limited interaction” with plaintiff in a supervisory capacity, based on his personal interactions with plaintiff, as well as the “rumor mill,” he believed that plaintiffs status as a probationary police officer “should be thoroughly evaluated to determine his fitness and qualifications to continue his assigned duties as a permanent employee of the [RVCPD].” (Village Def. Ex. WW.) Quinn recounted an incident in which he and plaintiff, as well as two other officers, were assigned to investigate a reported disturbance. (Village Def. Ex. WW.) Two subjects were arrested for disorderly conducted and processed by plaintiff. (Village Def. Ex. WW.) Although one of the subjects was “particularly uncooperative,” Quinn stated that he felt that plaintiffs “demeanor during processing was not conducive to expediting arrest processing” and that “at times it seemed as though [plaintiff] was attempting to ‘entice’ the defendant into taking a swing at him.” (Village Def. Ex. WW.) Quinn further stated that he had “several sergeants ... relay to [him] their unease at having [plaintiff] work for them.” (Village Def. Ex. WW.) Quinn admitted that much of his opinion was based on hearsay but stated that “in [his] opinion,” plaintiff was “a bit overzealous during his probationary status and [had] failed to transition from the NYPD to [the RVCPD] smoothly.” (Village Def. Ex. WW.) According to Quinn, plaintiffs “ ‘confidence’ in his abilities ... exceeded] his capabilities and knowledge,” such that Quinn felt “further training” might be warranted. (Village Def. Ex. WW.) E. Sergeant Robert W. Bystricky Sergeant Robert W. Bystricky’s (“Bystricky”) email, dated February 3, 2003, advised Lieutenant Fantry that although he had “not worked many tours” with plaintiff, his observation was that “at best [plaintiff] does not understand the mission of our department ... and at worst he doesn’t care what it is.” (Village 56.1 ¶ 64; Village Def. Ex. AAA.) Bystricky went on to state that “[otherwise, [plaintiff] seem[ed] to be a nice enough person.” (Village Def. Ex. AAA.) F. Sergeant Burke Burke submitted his email to Lieutenant Fantry on February 4, 2004. (Village 56.1 ¶ 65; Village Def. Ex. BBB.) Burke’s email mainly described instances of alleged misconduct by plaintiff that were recounted to him by other supervisors. (Village Def. Ex. BBB.) However, one incident of which Burke had personal knowledge involved the DWI arrest of DeFelice. (Village Def. Ex. BBB.) Burke stated that “[i]n reviewing the arrest package afterward, [he] found a completed Standardized] F[ield] S[obriety] T[est] form indicating a number of specific sobriety tests were performed at the scene.” (Village Def. Ex. BBB.) Burke further stated that he was “at the scene at the time indicated and in direct observation of the arrest,” and did not observe any such tests performed.” (Village Def. Ex. BBB.) Burke concluded that he believed that “the test results were fabricated.” (Village Def. Ex. BBB.) Burke went on to state that plaintiff “aet[ed] in a manner that [was] not consistent with being a rookie officer,” such that “his attitude portray[ed] a sense of superiority toward senior members of [the RVCPD].” (Village Def. Ex. BBB.) According to Burke, plaintiff “seem[ed] to have little regard for supervisors” and “[did] not appear to respect authority.” (Village Def. Ex. BBB.) Burke further stated that plaintiff “[had] shown consistently bad judgment.” (Village Def. Ex. BBB.) Burke concluded that he did not want to work with plaintiff, nor did he want to supervise him, and that he was “very concerned.” (Village Def. Ex. BBB.) G. Sergeant Charles Gennario By email dated February 6, 2003, Sergeant Gennario advised Lieutenant Fantry that although he considered plaintiff to be “a confident sometimes arrogant officer,” he nonetheless “found him to be very competent.” (Village 56.1 ¶ 75; Village Def. Ex. DDD.) Quite different from the other sergeants’ emails, Gennario described plaintiff as a good “street cop” who, in the short time that he had been with the department, “led patrol in arrests.” (Village Def. Ex. DDD.) Gennario further described plaintiff as having a “nose” for police work and an ability to handle “all kinds of assignments well” as well as the ability to “develop[ ] a good rapport with the civilians he comes into contact with.” (Village Def. Ex. DDD.) Gennario also stated that plaintiffs “production [had] been excellent” and that he prepared “thorough and efficient reports.” (Village Def. Ex. DDD.) Gennario recounted one “minor disciplinary infraction” that plaintiff committed in which plaintiff was involved in an accident involving his departmental vehicle. (Village Def. Ex. DDD.) According to Gennario, the “real problem” was plaintiffs “cavalier attitude regarding the accident.” (Village Def. Ex. DDD.) When Gennario instructed plaintiff to photograph the damage to his vehicle, plaintiff placed band-aids over the damaged areas prior to taking the photographs. (Village Def. Ex. DDD; Burke Dep. 106-07.) Génnario stated that he issued plaintiff a white card for the accident “[i]n order to stress the seriousness of the incident.” (Village Def. Ex. DDD.) Gennario concluded his email by stating that he would “prefer to have [plaintiff] work for [him] than many of the others that are currently working (or not working).” (Village Def. Ex. DDD.) In Gennario’s opinion, plaintiff “has a great interest in being a cop and does stir the pot often which will create civilian complaints,” but that “[o]ne of [plaintiffs] strong points is that he can be counselled [sic] and takes criticism well without holding a grudge.” (Def. Ex. DDD.) Gennario stated that he believed that the RVCPD should retain plaintiff and that “other officers should emulate certain characteristics that he displays.” (Village 56.1 ¶ 75; Def. Ex. DDD.) H. Sergeant Edward R. Calder Sergeant Edward R. Calder’s (“Calder”) memo to Lieutenant Fantry, dated February 6, 2003, stated that although he had limited interaction with plaintiff, “several incidents involving [plaintiff] ... formed a negative impression in [his] mind.” (Village 56.1 ¶76; Village Def. Ex. EEE.) Calder stated that the “most serious incident” involved the processing of an arrest that plaintiff had made. (Village Def. Ex. EEE.) According to Calder, plaintiff made an arrest, for which Sergeant Gennario set the charges, of which there were five. (Village Def. Ex. EEE.) When Calder relieved Gennario in the morning, he was informed of the arrest but not the specific charges. (Village Def. Ex. EEE.) Calder stated in his memo that plaintiff “took it upon himself to add two [additional] charges without discussing it with [Calder] and against [Gennario’s] wishes.” (Village Def. Ex. EEE.) Calder learned of the conflict the following day from Gennario and “felt that [plaintiff] took advantage of the change in supervision to further his own agenda and by doing so disobeyed [Gennario] and disrespected [Calder].” (Village Def. Ex. EEE.) Calder also recounted a second incident in which plaintiff arrived at headquarters at the end of one of his tours, “threw a license plate onto the service desk and began to walk away.” (Village Def. Ex. EEE.) When Calder questioned plaintiff about the license plate, he stated that he “found it in the projects.” (Village Def. Ex. EEE.) Calder later learned that plaintiff had removed the license plate from a vehicle parked in the projects because, although the plate was valid, it was on the wrong vehicle. (Village Def. Ex. EEE.) Calder stated in his memo that he “verbally reprimanded [plaintiff] and instructed him in the proper paperwork and procedures for such occurrences.” (Village Def. Ex. EEE.) Calder concluded his memo by stating that “many of the cops are leery of [plaintiff] and don’t like to work with him.” (Village Def. Ex. EEE.) According to Calder, although he found plaintiff to be “intelligent” and “aggressive,” he also considered him “untrustworthy, disrespectful to authority, and less than honest.” (Village Def. Ex. EEE.) Calder’s recommendation was that “some retraining [was] necessary, but more importantly a drastic change in attitude [was] essential if [plaintiff were] to thrive in [the RVCPD].” (Village Def. Ex. EEE.) On February 7, 2003, Calder submitted a follow-up email, in response to a request from Lieutenant Fantry regarding an alleged incident involving plaintiffs purchase of a barbecue grill while on duty. (Village 56.1 ¶ 82; Village Def. Ex. FFF.) In the email, Calder stated that his recollection of the “BBQ Incident” was that he was standing in the parking lot of the RVCPD headquarters when he observed plaintiff enter the lot in his personal automobile. (Village Def. Ex. FFF.) Calder observed a “large outdoor BBQ grille” in the rear of plaintiffs vehicle. (Village Def. Ex. EEE.) According to Calder, he “took note that [plaintiff] was on duty at this time” and a few days later, he “found out” that plaintiff was observed by another officer “loading the BBQ onto the rear of his truck in the rear of PC Richard in full uniform.” (Village Def. Ex. EEE.) I. Sergeant Roby Johnson By memorandum dated February 7, 2003, Sergeant Roby Johnson detailed certain incidents in which plaintiff was involved, including the June 19, 2002 alleged altercation with Jerry Zwecher, which resulted in a complaint being filed against plaintiff, as well as the DWI arrest of Joseph DeFelice. (Village Def. Ex. GGG.) Like Burke, Johnson stated that he did not see plaintiff perform the standard field sobriety tests, however, Johnson acknowledged that plaintiffs patrol car was blocking his view of plaintiff and DeFelice. (Village Def. Ex. GGG.) Nonetheless, Johnson further stated that although he “[did] not know how long it takes to conduct such a test ... there was a very short period of time between DeFelice exiting his vehicle and his being arrested.” (Village Def. Ex. GGG.) Johnson stated in his memo that plaintiff “[was] an aggressive police officer whom [Johnson] believe[d] need[ed] supervision.” (Village Def. Ex. GGG.) However, Johnson also stated that he believes it is the supervisors’ responsibility to “correct any shortcomings” that they observed in plaintiff, which Johnson maintained he had consistently done. (Village Def. Ex. GG.) Johnson concluded that he believed that “possible training or retraining of an officer is preferable to termination.” (Village Def. Ex. GGG.) After interviewing all of the sergeants within the RVCPD concerning their impressions of plaintiff, Lieutenant Fantry presented Commissioner McKeon with his findings by memorandum dated February 7, 2003. (Village 56.1 ¶ 90; Village Def. Ex. HHH.) Fantry attached to his memorandum all of the written reports provided to him by the sergeants. (Village 56.1 ¶ 90; Village Def. Ex. HHH.) Fantry noted that the only supervisor who demonstrated “strong support” for plaintiffs abilities as a police officer was Sergeant Gennario. (Village Def. Ex. HHH.) Fan-try stated, however, that although he often values Gennario’s opinion, “in [plaintiffs] case, [Fantry] believe[d] that Gennario’s strong military sense of loyalty to one of ‘his guys’ ... clouded his judgment” and that Gennario “[did not] seem to want to see what so many others [were] unable to ignore.” (Village Def. Ex. HHH.) Fantry further stated that “the problem” with plaintiff was not his knowledge or ability to be “an outstanding Police Officer,” but rather, his “outrageous attitude of arrogance [and] disrespect for supervisory authority ....” (Village Def. Ex. HHH.) In addition, Fantry stated that plaintiff “laek[ed] the necessary degree of self-discipline to avoid being the subject of controversy within the Command and with the public as well” and went on to state that although none of the civilian complaints against plaintiff had been substantiated, “the very number of them so early in [plaintiffs] career [gave] rise to concern .... ” (Village Def. Ex. HHH.) Fantry concluded that although plaintiff had a “strong work ethic” and, with “strong supervision, could possibly be a “terrific asset” for the RVCPD, the question facing McKeon was whether he was willing to “tolerate the disruptive internal problems and civilian complaints that ... seem[ed] to be inevitable if [the RVCPD] retain[ed] him.” (Village Def. Ex. HHH.) As part of his investigation, Commissioner McKeon contacted the Rockville Centre Deputy Village Clerk, Carol Kramer (“Kramer”), by email dated February 3, 2003, and inquired as to the rules for terminating plaintiff. (Village 56.1 ¶ 62; Village Def. Ex. YY.) McKeon also forwarded his email to Ron Wasson (“Wasson”), Rockville Centre’s Village Administrator, to apprise Wasson of the investigation he was conducting. (Village 56.1 ¶ 63; Village Def. Ex. YY.) Kramer advised McKeon that plaintiffs probationary period was set to expire on September 19, 2003 and that McKeon was free to terminate plaintiff immediately for “not passing probation, no questions asked.” (Village 56.1 ¶ 62; Village Def. Ex. ZZ.) Kramer further advised McKeon that he could also present plaintiff with the option of resigning voluntarily. (Village 56.1 ¶ 62; Village Def. Ex. ZZ.) On February 13, 2003, plaintiff met with Commissioner McKeon and Sergeant Gennario. (Village 56.1 ¶ 93; Burke 56.1 ¶ 18; McKeon Dep. 27.) McKeon advised plaintiff that he was in “serious trouble” in the RVCPD. (McKeon Dep. 29.) McKeon further advised plaintiff that he had received numerous complaints about him and that “[e]very supervisor had something negative to say” against plaintiff, with the majority recommending that plaintiff be terminated. (McKeon Dep. 29; Village Def. Ex. III.) In addition, McKeon suggested that plaintiff may want to avail himself of the opportunity to return to the New York City Police Department while he was still able to. (McKeon Dep. 29-30; Village Def. Ex. III.) Plaintiff was not permitted to say anything in his defense either during this meeting or at any point thereafter. (McKeon Dep. 29-30.) Nor was plaintiff permitted to respond in any way to the reports about him that were submitted by the various supervisors in the RVCPD. (McKeon Dep. 125, 128-29.) Plaintiff did not complain about discrimination, racial epithets or any other wrongful conduct during this meeting. (Village 56.1 ¶ 95; Burke 56.1 ¶ 18.) IV. The Remainder of Plaintiffs Employment with the RVCPD On or about February 15, 2003, plaintiff was transferred from Sergeant Burke’s supervision to Sergeant Johnson’s, where he remained for the rest of his employment with the RVCPD. (Burke 56.1 ¶ 19.) Plaintiff has not had any contact with Burke since he was transferred from his supervision. (Burke 56.1 ¶ 19.) On April 20, 2003, plaintiff was injured in the line of duty, fracturing his right elbow. (Village 56.1 ¶ 96; Village Def. Ex. JJJ.) Plaintiff was unable to work for approximately two months, returning to the RVCPD in June 2003. (Village 56.1 ¶ 96.) On July 5, 2003, plaintiff was scheduled to work a “payback” tour but failed to appear. (Village 56.1 ¶ 97; Burke 56.1 ¶ 20.) Plaintiff asserted that he never received the email notification sent by Lieutenant Quinn on June 26, 2003, informing him of the payback tour. (Village 56.1 ¶ 98; Burke 56.1 ¶ 20; Village Def. Ex. LLL, PPP.) Lieutenant Fantry, however, determined that plaintiff had in fact received Quinn’s email by logging into plaintiffs email, where he found the email in plaintiffs “previously read mail” folder. (Village 56.1 ¶ 98; Burke 56.1 ¶ 20; Village Def. Ex. NNN.) On July 10, 2003, plaintiff was scheduled to testify in the Nassau County Court as part of another “payback” tour. (Village Def. Ex. MMM.) Plaintiff was informed of the appearance via an email sent from Lieutenant Marcel on June 27, 2003. (Village Def. Ex. MMM.) Some time prior to his scheduled court appearance, plaintiff contacted the Assistant District Attorney assigned to the case, Glenn Kurtzrock (“Kurtzrock”), and inquired as to whether the court hearing was still going forward on July 10, 2003. (Kurtzrock Dep. 21, annexed as Village Def. Ex. N.) When Kurtzrock informed him that it was, plaintiff inquired as to whether he could testify on a later date, rather than on July 10, 2003, as scheduled, because he had a family vacation planned in Rhode Island. (Kurtzrock Dep. 21; Village Def. Ex. PPP, QQQ.) Plaintiff offered to cancel his vacation if necessary but Kurtzrock told him that he had several other witnesses who were going to testify and that he could arrange for plaintiff to give testimony on a later date, since the hearing would last several days. (Kurtzrock Dep. 21-22; Village Def. Ex. PPP, QQQ.) Plaintiff did not seek permission from anyone within the RVCPD before contacting Kurtzrock about switching the date of his testimony. (McKeon Dep. 56-57.) Plaintiff ultimately testified on July 14, 2003, at a time for which plaintiff was not scheduled to work and therefore received overtime compensation. (McKeon Dep. 57; Village Def. Ex. RRR, QQQ.) Commissioner McKeon thereafter requested that three lieutenants, Quinn, Fantry and Marcel, review plaintiffs personnel file and recommend a course of action. (Village 56.1 ¶ 102.) During the time that plaintiff was employed at the RVCPD, he never received any written reprimands or disciplinary warnings that were placed in his personnel file. (McKeon Dep. 81.) Nor were any formal disciplinary charges ever instituted against plaintiff. (McKeon Dep. 122-23, 125.) In addition, plaintiffs personnel file contained the following positive documentation: (1) an internal memorandum from McKeon, dated July 11, 2003, thanking and commending plaintiff for “completing six months of police service without taking any sick leave,” (PI. Ex. C); (2) a commendation for actions taken with respect to an incident involving an automobile fire, (McKeon Dep. 81-82); (3) an internal memorandum noting that plaintiff “used good judgment” when attempting to detain an individual who appeared to be armed by not “engag[ing] in a firearms incident,” but rather, “attempting] to physically subdue the person,” (PI. Ex. F); and, (4) a letter from an individual in the community thanking plaintiff for his actions taken in response to a call for assistance, which described plaintiff as having been “professional, polite and concerned .... ” (PI. Ex. E; McKeon Dep. 81-82.) Plaintiffs personnel file also contained an evaluation completed by Sergeant Gennario, dated January 15, 2003, which awarded plaintiff average to high marks on every aspect of his performance. (PI. Ex. D.) Gennario’s evaluation of plaintiff further stated as follows: PO Carmody has continued to improve in his performance in the department. He is an energetic, self starter who has a propensity for police work. He is self confident and displays a great deal of initiative. In the short time he has been with the department he leads the patrol force in arrest. He can handle a[sic] various assignments efficiently and when needed can exert the proper level of authority. He handles all calls enthusiastically. His sick record is perfect and his numbers production is continually amongst the highest in the department. He displays an excellent ability to communicate, especially his writing talents. With greater experience in departmental procedures, PO Carmody’s potential in the department could be unlimited. (PI. Ex. D.) After reviewing plaintiffs personnel file, all three lieutenants unanimously recommended that plaintiff be terminated. (Village Def. Ex. SSS, TTT, UUU.) V. Plaintiffs Termination By email dated July 24, 2003, McKeon again contacted Carol Kramer, as well as the Village Administrator, Ron Wasson, and Martha Krisel, the attorney for the Village of Rockville Centre, to confirm the rules relating to terminating plaintiff. (Village 56.1 ¶ 103; Village Def. Ex. VW.) On August 1, 2003, plaintiff met with McKeon, Sergeant Johnson and Lieutenant Fantry, at which time he was informed by McKeon that he had failed to successfully complete his probationary period and would be terminated in twenty-one days. (Village 56.1 ¶¶ 104-05; Burke 56.1 ¶ 23; CSC 56.1 ¶ 4; McKeon Dep. 79.) Plaintiffs employment with the RVCPD was terminated that day, effective August 23, 2003. (Village 56.1 ¶ 10; Burke 56.1 ¶ 23; CSC 56.1 ¶¶ 5, 20; Village Def. Ex. AA.) Plaintiff refused to sign the RVCPD memorandum notifying him of his termination. (P1.50(h) Dep. 122; Village Def. Ex. AA.) Following the August 1, 2003, meeting, plaintiff spoke, via telephone, with Detective Marino and Sergeant James Vafeades, the then Vice President of the PBA, on more than one occasion. (Village 56.1 ¶¶ 106-07.) During these conversations, plaintiff discussed the reasons for his termination. (Village 56.1 ¶¶ 106-07; Village Def. Ex. DDDD, EEEE.) Plaintiff never advised Marino or Vafeades that he was terminated for complaining about discrimination. (Village 56.1 ¶¶ 106-07; Marino Aff., dated Apr. 25, 2008, ¶ 3; Vafeades Aff., dated Apr. 23, 2008, ¶3; Village Def. Ex. DDDD, EEEE; PI. Dep. 206.) On August 6, 2003, plaintiff and his father, Michael Carmody, Sr., telephoned McKeon. (Village 56.1 ¶ 108.) During the conversation, both plaintiff and his father informed McKeon that plaintiff would resign from the RVCPD prior to the effecfive date of his termination. (Village 56.1 ¶ 108; Village Def. Ex. CCCC.) In addition, both plaintiff and his father requested assurance that there were no criminal charges being asserted against plaintiff and plaintiff inquired as to whether McKeon would provide him with a recommendation. (Village 56.1 ¶ 109; Village Def. Ex. BBBB.) McKeon assured plaintiff and his father that if contacted by a future employer, he would indicate that plaintiff had voluntarily resigned. (Village Def. Ex. CCCC.) On August 6, 2003, McKeon emailed Ron Wasson to advise him of his telephone conversation with plaintiff and his father. (Village Def. Ex. WWW.) McKeon further advised Wasson that he believed plaintiffs letter of resignation would be “forthcoming” and that he indicated to plaintiff that he would accept such a letter, which would be reflected in plaintiffs personnel file. (Village Def. Ex. WWW.) By email dated August 8, 2003, McKeon informed Carol Kramer of the same and noted that plaintiff was submitting his voluntary resignation in order to gain a “better chance” at being reinstated to the civil service list or the NYPD. (Village Def. Ex. XXX.) By letter dated August 11, 2003, plaintiff resigned from the RVCPD, effective that same date. (Village 56.1 ¶ 110; Village Def. Ex. ZZZ.) In his letter, plaintiff stated that his resignation from the RVCPD was based on his preference to “work[ ] for a department that [could] afford [him] a better opportunity for advancement.” (Village Def. Ex. ZZZ.) VI. The CSC’s Denial of Plaintiff s Reinstatement Request On or about August 6, 2003, the CSC received a Report of Personnel Action and Probationary Report (“Personnel Report”) from the Village, dated August 5, 2003, which advised that plaintiff was being discharged due to his unsatisfactory conduct, capacity and fitness during his probationary period. (CSC 56.1 ¶ 19; Williams Dep. 15, 17.) Thereafter, the CSC received a second Personnel Report, dated August 13, 2003, which changed plaintiffs termination to a resignation, effective August 11, 2003. (CSC 56.1 ¶ 21; Williams Dep. 16-17.) On August 11, 2003, plaintiff wrote to the then Executive Director of the CSC, Thomas Williams (“Williams”), and requested reinstatement to Civil Service eligible list No. 4200. (CSC 56.1 ¶22; PI. Ex. I.) In his letter, plaintiff informed Williams that he resigned from the RVCPD “because [he] would prefer working for a department that can afford a better opportunity for advancement.” (CSC 56.1 ¶ 23; PI. Ex. I.) By letter dated August 18, 2003, McKeon advised Williams of plaintiffs resignation from the RVCPD. (Village 56.1 ¶ 111; Burke 56.1 ¶24; CSC ¶56.1 24; Village Def. Ex. AAAA.) In his letter, McKeon stated that plaintiff was “zealous and motivated” during his employment with the RVCPD. (Village Def. Ex. AAAA.) McKeon also requested that plaintiff be restored to the civil service list. (Village 56.1 ¶ 111; Burke 56.1 ¶24; CSC 56.1 ¶ 24; Village Def. Ex. AAAA.) On August 26, 2003, the Commissioners met and reviewed plaintiffs request for reinstatement. (CSC 56.1 ¶ 25.) After consideration, the Commissioners adopted a resolution denying plaintiffs request to be reinstated to Police Officer Civil Service List No. 4200. (CSC 56.1 ¶ 26; Burke 56.1 ¶ 24; PI. Ex. I.) Williams informed plaintiff of the CSC’s decision in writing on or about September 3, 2003. (CSC 56.1 ¶ 27.) By letter to Williams dated September 10, 2003, plaintiff inquired as to the reason for the CSC’s decision not to reinstate plaintiff to the civil service list. (CSC 56.1 ¶ 28; PI. Ex. I.) Williams replied to plaintiff in writing on September 22, 2003, advising him that the Commissioners had reviewed his situation and “determined that reinstatement was not appropriate.” (CSC 56.1 ¶ 29; PI. Ex. I.) Williams further advised plaintiff that reinstatement of a candidate to a competitive title list is within the sole discretion of the Commissioners. (CSC 56.1 ¶29; Williams Dep. 30-31, 42-43; PI. Ex. I.) By the same letter, Williams also requested, “[a]s an aside,” that plaintiff explain why he was initially terminated by the RVCPD for “unsatisfactory probation.” (CSC 56.1 ¶ 30; PI. Ex. I.) By letter dated September 30, 2003, plaintiff responded to Williams’ inquiry, stating that the RVCPD had not advised him of the reason for his initial termination and that he was “the victim of a gross injustice that was directed to destroy [his] career as a professional police officer.” (CSC 56.1 ¶ 31; PL Ex. I.) Plaintiff further advised Williams of his willingness to meet with the CSC to discuss the matter further. (CSC 56.1 ¶ 32; PL Ex. I.) Nowhere in his letter did plaintiff state that he was terminated in retaliation for his objections to perceived discrimination on the part of the RVCPD. (Williams Dep. 49-50.) On October 17, 2003, plaintiff again wrote to Williams, requesting a meeting with him and the Commissioners regarding the RVCPD’s termination of his employment due to his unsatisfactory probationary period. (CSC 56.1 ¶ 33.) Plaintiff did not state anywhere in his letter that his termination was the result of retaliation or discrimination. (Williams Dep. 49-50.) Williams was terminated as Executive Director of the CSC in November 2003 and, in December 2003, Karl Kampe (“Kampe”) was appointed as his replacement. (CSC 56.1 ¶¶ 34-35.) Shortly after being appointed to the position of Executive Director, Kampe responded to a letter that plaintiff sent to County Executive Thomas Suozzi, dated December 11, 2003, complaining that his letters to the CSC requesting reinstatement to the civil service list had gone unanswered since September 30, 2003. (CSC 56.1 ¶ 37; PI. Ex. B.) By letter dated December 18, 2003, Kampe informed plaintiff that Williams was no longer the Executive Director of the CSC and that he would submit plaintiffs appeal to the Commissioners. (CSC 56.1 ¶ 38.) Kampe requested that plaintiff send him, in a timely fashion, all information that he deemed relevant as to why the CSC should reinstate plaintiff to the civil service list. (CSC 56.1 ¶38.) Kampe thereafter sent plaintiff a follow-up letter, dated December 26, 2003, informing plaintiff that he had not yet received a response to his December 18, 2003 correspondence. (CSC 56.1 ¶ 39.) On January 6, 2004, plaintiffs attorney, Frederick Brewington (“Brewington”), wrote to Kampe, apologizing for plaintiffs delay in responding to Kampe’s December 18, 2003 correspondence and requesting that plaintiffs appeal be submitted. (CSC 56.1 ¶ 40.) By letter dated January 29, 2004, Kampe again advised plaintiff, via correspondence addressed to Brewington, that plaintiff should promptly file his appeal. (CSC 56.1 ¶ 41.) Kampe further advised Brewington that due to the fact that so much time had elapsed, the consideration of any appeal would be at the discretion of the Commissioners. (CSC 56.1 ¶ 42.) On March 18, 2004, Police Officer Civil Service List No. 4200 expired. (CSC 56.1 ¶ 43; CSC Ex. U.) By letter dated February 2, 2005, more than one year after Kampe’s letter advising that plaintiff should promptly file his appeal, Brewing-ton contacted Kampe and enclosed the requested documentation for the CSC’s consideration. (CSC 56.1 ¶ 44; CSC Ex. U.) Plaintiff never advised the CSC of any alleged discrimination or racial slurs occurring within the RVCPD during the course of his employment there. (CSC 56.1 ¶ 45.) Nor did plaintiff make any such allegations in his correspondence with the CSC after his termination. (CSC 56.1 ¶ 46.) VII. Plaintiffs Allegations of Discriminatory Conduct and Retaliation Within the RVCPD Plaintiff alleges that certain officers and supervisors within the RVCPD — specifically, Sergeants Johnson, Burke and Calder and Lieutenant Fantry — referred to certain lower-income housing areas in the Village — known as the “west end” — as the “projects” or the “zoo” and that they used various racial slurs to describe the residents of those areas, such as “animals,” “niggers,” “monkeys,” and “savages.” (F1.50(h) Dep. 36-39; PI. Dep. 63-68.) Plaintiff did not complain to any supervisors about these comments when he first heard them but alleges that he discussed them with Officer Giovanello. (P1.50(h) Dep. 46-47.) Plaintiff also alleges that these racially derogatory comments were often made in front of an African-American dispatcher employed by the RVCPD, Courtney Holsey (“Holsey”). (PI. Dep. 8-16.) After one such incident, in October 2002, plaintiff approached Sergeant Johnson and advised him that such comments were inappropriate, particularly when made in Holsey’s presence. (PI. Dep. 17-19; PL Dep. II 33-40.) Sergeant Johnson thanked plaintiff for bringing the issue to his attention. (Pl. Dep. 19.) However, according to plaintiff, the officers within the RVCPD— and specifically, Lieutenants Fantry and Marcel, Sergeants Burke and Johnson and Commissioner McKeon — continued to use racial slurs in front of Holsey throughout 2002 and into the summer of 2003. (Pl. Dep. 26-27; 90-107, 111-18, 127-29, 142-49.) In December 2002, plaintiff again complained about the use of racially charged language within the RVCPD, this time to both Sergeants Johnson and Gennario. (PL Dep. II 48-51.) Plaintiff did not file any written complaints. (PL Dep. 29-30; 121-23.) Plaintiff alleges that from July or August of 2002 to January 2003, he was advised several times by his supervisor, Sergeant Gennario, that Sergeant Burke was “badmouthing” h'im at supervisor meetings, referring to plaintiff as “disrespectful.” (P1.50(h) Dep. 44-45; PL Dep. II 44-45.) During the same time, plaintiff heard similar statements from Sergeants Marino and Vafeades and was informed by Officer James Lauth that Burke “ha[d] a hard on for [plaintiff] and [was] gunning for [him].” (P1.50(h) Dep. 45, 52, 56.) On January 22, 2003, plaintiff arrived for work at the RVCPD and, while changing in the locker room, overheard a conversation between Sergeants Burke and Johnson wherein Burke stated that he was placing plaintiff on a different “post” that night so that he could “keep a[n] ... eye on him.” (P1.50(h) Dep. 59-60.) Plaintiff alleges that he heard Johnson reply that plaintiff was the “only one that like[d] working [the post] with the ... niggers.” (P1.50(h) Dep. 61.) Plaintiff further alleges that he heard Burke state that he did not need plaintiff “entertaining” the residents of the west end. (P1.50(h) Dep. 61-62.) Burke further stated that plaintiff needed to learn that he was “the new guy” and that Burke was “the boss.” (P1.50(h) Dep. 63.) Plaintiff alleges that he complained about what he overheard to Sergeants Johnson and Vafeades, and specifically, about Burke’s use of racially derogatory language. (P1.50(h) Dep. 63-64; PL Dep. 200-02.)