Black Syracuse officer cannot assert racial stereotyping claim

The plaintiff in this case is a Black Syracuse police officer who claims that white members of the Gang Violence Task Force purposefully scuttled his efforts to join the task force because they did not want a Black officer on this elite body. The Court of Appeals (Sullivan, Cabranes and Nathan) holds that plaintiff cannot show that the white officers had intentionally acted to prevent him from joining the task force and that plaintiff does not assert there was any racially-motivated stereotyping.

The case is Hanks v. City of Syracuse, a summary order issued on December 26. I argued the appeal and will try to keep this neutral. This is a Rule 12 motion, not summary judgment. Plaintiff alleged that, without his input, other task force members drafted a memo intended to prevent Hanks from joining the task force. The memo "detailed several incidents and social media posts where Hanks had purportedly affiliated with “gang members and convicted criminals,” and referred to several videos Hanks had posted on social media that depicted him in uniform while listening to 'a rap song' and using vulgar and explicit language. The memo also indicated that these videos had been forwarded to a deputy chief in the department.  Upon learning of the memo, Hanks  filed  a notice  of  claim  with  the  Equal  Employment  Opportunity Commission, asserting that the memo was a racially motivated attempt to undermine his candidacy."

Plaintiff drafted a rebuttal memo that placed these episodes in context and emphasized, among other things, that he did not consort with gang members and criminals and that all of this was a stereotyped attack on his character intended to prevent him from joining the task force. The Court of Appeals disagrees that plaintiff has asserted a plausible claim for discriminatory intent because "when courts find discriminatory intent based on stereotyped remarks, it is generally because those remarks make invidious generalizations about the protected class." The cases in support of this proposition are Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200 (2d Cir. 2017) (finding plausible discriminatory intent where a supervisor explicitly stated that an openly gay plaintiff “must have AIDS” because he was “effeminate and gay”; Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009) (concluding that “a reasonable jury could construe [the statement ‘you probably did what the accuser said you did because you’re male’] as an invidious sex stereotype”). Is negative stereotyping the only way to assert a stereotyping theory? Is it not negative stereotyping to falsely claim that a Black police officer is running around with gang members and criminals? These are the matters that we debated at oral argument.

Nor does the Complaint assert that plaintiff was actually denied the position. The Court writes, "Hanks’s complaint never asserts whether, when, or why he was denied the GVTF assignment, much less that supervisors did so because of the memo.  Instead, Hanks makes various accusations that the GVTF officers and its supervisors “sought to derail his promotion,' and 'conspired to deprive [Hanks] of his rightful advancement within the Police Department.'" Here we have the consequences of the Iqbal pleading rule: plaintiffs have to explicitly assert their facts in the complaint, and the court will not draw too many inferences, through plaintiff was in fact denied membership to the task force at this time.

The Court finally holds there is no retaliation claim. Nine days after plaintiff asserting in a notice of claim that he was denied the task force assignment for racially-discriminatory reasons, he received a written reprimand from the Chief of Police’s office regarding his social media posts, which quoted from rap lyrics. The Court of Appeals says there is no retaliation claim because the rebuke was a reprimand that threatened plaintiff with discipline in the event he continued to violate the Department's speech policy in the future. We argued that reprimands may qualify as adverse actions under Circuit Court precedent, and that this drew from additional stereotypes since rap music is not the only music with violent lyrics. The Court disagreed and said this reprimand referred to the Department's policy against social media posts that contain explicit language.