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LENIHAN v. CITY OF NEW YORK

December 16, 1985

MARY LENIHAN, Plaintiff, against THE CITY OF NEW YORK; EDWARD KOCH as Mayor of the City of New York; POLICE DEPARTMENT OF THE CITY OF NEW YORK; BENJAMIN WARD as Police Commissioner of the City of New York and as Chair of the Board of Trustees Police Pension Fund; MEMBERS of the BOARD OF TRUSTEES of said fund; ARTICLE II MEDICAL BOARD, ROBERT McGUIRE, as former Police Commissioner, Defendants


The opinion of the court was delivered by: CONNER

CONNOR D. J.

OPINION AND ORDER

Plaintiff Mary Lenihan ("Lenihan"), a policewoman currently employed by the Police Department of the City of New York ("the Department"), commenced this action in June 1984 seeking to enjoin the Department and the Board of Trustees of the Police Pension Fund from retiring her from service on psychiatric grounds. Among the other named defendants are the City of New York ("the City"), Mayor Edward Koch, the Police Commissioner, and an entity known as the Article II Psychiatric Medical Board, which evaluated Lenihan and recommended to the Board of Trustees that she be retired or, in police parlance, "surveyed."

 In her complaint, Lenihan asserts that in referring her for psychological evaluation and in making the subsequent determination to retire her, the various defendants discriminated against her on the basis of her sex, retaliated against her for her participation in a class action by which female police officers gained substantial retroactive seniority and related benefits, and violated her due process rights by refusing to afford her an adversary hearing. Plaintiff seeks injunctive relief, compensatory damages, and attorneys' fees pursuant to title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1982), the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1982), and § 296 of the New York Human Rights Law, N.Y. Exec. Law § 296 (McKinney 1982).

 In conjunction with the filing of her complaint, plaintiff moved by order to show cause for a preliminary injunction. After a half-day of testimony on the preliminary injunction issue, the Court proposed and defendants agreed that they would take no further steps to retire Lenihan pending a full trial on the merits. The matter was ultimately tried before the Court sitting without a jury and on January 21, 1985, after ten days of testimony, the Court entered a preliminary injunction restraining defendants from retiring Lenihan on psychiatric grounds pending a final ruling on the merits.

 The parties agreed to submit posttrial memoranda, which were filed in due course. The Court has now carefully reviewed these memoranda, together with the testimony and the documentary evidence received at trial, and this Opinion and Order incorporates the Court's findings of fact and conclusions of law pursuant to rule 52(a), Fed. R. Civ. P. For the reasons set forth below, I conclude that defendants discriminated against Lenihan on the basis of her sex, and violated her due process rights. Accordingly, judgment will be entered in favor of plaintiff, enjoining the Department from retiring her on psychiatric grounds solely on the basis of the record it has amassed to date and awarding her reasonable attorneys' fees and damages in the amount of $2,500.

 BACKGROUND

 Mary Lenihan passed a Civil Service examination for the position of New York City police officer in 1965, but because the City was not hiring female police officers at the time, no action was taken on her application. For the next several Years she worked as a clerk stenographer for the United States Postal Service and, in 1969, she obtained employment as a correction officer with the New York City Department of Correction. The performance evaluations she received as a probationary correction officer were most unflattering; fourteen of her fifteen supervisors rated her work below average, and her file contains, among other things, the description of an incident in which she allegedly failed to come to the aid of another officer in distress. Lenihan took issue with the fairness and accuracy of the evaluations she received at the Department of Correction, but resigned her position nonetheless and, in 1970, returned to the Postal Service.

 In 1973, eight years after Lenihan passed the police examination, the Police Department evaluated her qualifications to be a police officer. It conducted an extensive investigation into her personal, financial, scholastic, and employment background, and compiled its findings in a document referred to as a "P.A.15," which, pursuant to Department policy, was not available for her inspection. After reviewing Lenihan's application, the Department's Candidate Review Board recommended that her appointment be approved; however, the Personnel Director for the City of New York marked her "Not Qualified" on the basis of her prior employment record. Plaintiff thereafter requested and was granted a hearing before the City Civil Service Commission, which explored the allegations levelled against her by the Department of Correction and ultimately granted her appeal, marking her "Qualified" for the position of policewoman. Exh. 28. She was subsequently appointed to the force as a probationary officer and, in February 1974, she was assigned to the Police Academy.

 In February and May 1974, as part of the ordinary recruit psychological evaluation program, Lenihan and each of her classmates underwent psychological testing and an interview with the staff of the Department's Psychological Services Unit. According to the director of that unit, Lenihan's tests and interview yielded "no psychiatric or cognitive disturbances which would contraindicate [her employment as a police officer]." Exh. 29.

 Lenihan received the first evaluation of her performance at the Police Academy on July 11, 1974. Exh. 22. The report indicates that Lenihan met standards overall. She was characterized as shy and unassuming, but her rater opined that she would improve while in field training. She was criticized for failing to participate more in class discussions and to become involved with others, but was rated "above standards" in her willingness "to serve the public in all aspects of police work." Her rater commented that she displayed self-confidence, that she was not easily distressed or upset, and that she appeared able to make sound judgments. Lenihan was recommended for transfer to a field assignment, and on July 22, 1974, she was assigned to the 104th Precinct.

 Lenihan's performance at the 104th Precinct was evaluated for the first time in a report dated October 26, 1974. Exh. 22 at 3-4. Her sergeant indicated that, overall, she met standards. Although he indicated that she should be more aggressive and should get more involved in group discussions, he expressed the view that familiarity, time, and patrol experience would improve her judgment and decisionmaking. He described her as "even tempered" and indicated that she had positive and professional attitudes toward police work and ethics. Her captain reviewed the sergeant's evaluation and added the following comments: "Ratee has performed well. Has good productivity and shows willingness to perform."

 In a subsequent evaluation of her work at the 104th Precinct, Lenihan's rater indicated that Lenihan was a willing worker and took reasonable risks, that her written reports were "complete and accurate," and that her arrest and summons activity was "above average." Exh. 22 at 5-6. There were some less favorable comments as well; specifically, her rater commented that she had had trouble controlling her emotions in a time of stress, and that she required more experience to grasp patrol techniques. With respect to her decisionmaking abilities, he indicated that she had not been observed outside the presence of field training officers, and that her critical decisions therefore had been made by others. Overall, her performance was again found to meet standards. In February 1975, Lenihan passed her probationary period.

 Later that year, Lenihan was laid off as a result of the City's fiscal crisis. Thereafter, she became an active member of the plaintiff class in Acha v. Beame, No. 75 Civ. 3128 (S.D.N.Y.), in which 80 policewomen sued the Department, charging that their layoffs constituted unlawful discrimination. After a hearing, the court-appointed special master determined that but for unlawful discrimination against Lenihan, she would have been hired by the Department on November 7, 1966. The class action was ultimately settled and, as a result of that settlement, plaintiff was reinstated with retroactive seniority. According to uncontroverted testimony adduced at trial, the retroactive seniority awarded these women caused considerable resentment among the male officers, some of whom lost precedence in the selection of vacation time and other benefits as a result of being displaced on seniority lists. One witness stated: "The general feeling of most . . . police officers was they thought it was bullshit. . . . They just felt it wasn't fair . . . [that the women] got seniority for not being in the Police Department, not serving their time." Tr. at 383-84.

 Upon her reinstatement in March 1977, Lenihan underwent a second psychological evaluation. She was found fit and was assigned to the 78th Precinct. According to plaintiff, this was where her troubles began.

 In an evaluation completed on November 5, 1977, a Sergeant Curry rated her overall performance as "below standards." Exh. 23. He indicated that her major weakness lay "in a lack of self confidence that [was] communicated to others," and he noted that although this had not caused any major problems, a few minor incidents had resulted. He stated further:

 
On some occasions Officer Lenihan has not been able to handle situations while performing matron duties. This may again be a result of a lack of self confidence. There is no problem regarding the excessive use of force although at times a show of force may have prevented certain incidents from developing.

 Id. This evaluation was reviewed by Captain Richard C. Schauffert, who commented that he did not believe Lenihan possessed the assertiveness and self-assurance necessary to perform effectively as a police officer. He indicated that she would be assigned to a Field Training Officer to develop her skills. Id. Lenihan testified at trial that she had contested the accuracy of the remarks contained in this evaluation, but that Schauffert had suggested there would be some sort of retribution if she appealed her evaluation or took other formal steps to protest. Schauffert denied ever having threatened to take measures against her if she appealed.

 On November 11, 1977, only days after she had received the unfavorable evaluations from Sergeant Curry and Captain Schauffert, Lenihan suffered a back injury while on matron duty; apparently she was forcibly pushed against a wall while searching a female prisoner. On the recommendation of Dr. Leonard Fox, a "district surgeon" employed by the Department, *fn1" she remained on sick leave for two weeks and then returned to the station on restricted duty for another two weeks. Thereafter she went back on full duty, but continued to experience pain in her back when she walked for any length of time.

 In July 1978 Lenihan was still complaining of back pain. She consulted Dr. Fox, who wrote a memorandum to Captain Schauffert requesting that Lenihan be assigned to radio motor patrol instead of foot patrol to alleviate her symptoms. Several days later, Schauffert responded that all radio cars in his command were filled, and that in any event, Lenihan was unable to find another officer who was willing to ride with her on a steady basis. *fn2" Schauffert also suggested in his memorandum to Dr. Fox that Lenihan be assigned to restricted duty for the duration of her disability if she could not perform full duty. Approximately one week later, Lenihan was placed on restricted duty and was transferred to the Pistol License Application Division, out of Captain Schauffert's command.

 A month or so later, in late August 1978, Dr. Fox sent a memorandum to Psychological Services requesting that Lenihan be given a psychological evaluation to assess her "ability emotionally to handle police duty." Exh. 25. According to the memorandum, Captain Schauffert had expressed concern about her suitability as a police officer and had indicated that her small size might have affected her self-confidence. Whether Schauffert suggested or mentioned a psychological evaluation to Dr. Fox remains unclear, but the memorandum indicates that Dr. Fox then discussed the matter with Deputy Inspector Hall, a nonmedical uniformed officer responsible for the administrative aspects of the Department's Health Services. Fox and Hall agreed that an evaluation would be in order. Dr. Fox testified at trial that he never discussed the problem with a medical supervisor at Health Services "because Schauffert felt this was more in line with administrative and police decision making than medical decision making." Tr. at 939. Psychological Services did not respond immediately to Dr. Fox's referral.

 During the next several months, Lenihan remained in the Pistol License Application Division. A performance evaluation dated October 15, 1978 indicates that she met standards overall, and that she was "apparently stable and adaptable." Exh. 21.

 In late October 1978, Lenihan became embroiled in a dispute regarding vacation days she had accrued while assigned to the 78th Precinct. She had been denied a request for vacation time, and had filed a grievance charging that she was entitled to the time under the terms of the Acha v. Beame settlement. Lenihan ultimately prevailed. She went on vacation and when she returned she found a note on her desk directing her to report to Psychological Services. No further explanation was provided.

 Lenihan appeared at Psychological Services at the appointed date and time, and was interviewed for approximately one hour by Dr. Martin Symonds, a psychiatrist, and Michael McInerny, a uniformed officer assigned to the unit. Prior to the examination, Dr. Symonds had reviewed Lenihan's medical folder and her P.A.15, but at no time before or after the examination did he review her performance evaluations. Dr. Symonds issued a short memorandum report on March 15, 1979, Exh. 18, in which he began by commenting that Lenihan looked retarded, wore her hair short, and appeared "neuter." He went on to evaluate her intelligence as normal, but indicated that she was "defensive, evasive and on guard." He concluded, based primarily on his brief interview and the description in the P.A.15 of her Department of Correction experience ten years earlier, that she suffered from a "non psychotic, severe schizoid personality with oppositional traits." Dr. Symonds characterized her job performance as marginal at best, and stated that her personality disorder made her a problem police officer. He continued:

 
She is totally without acknowledged insight into her limited ability to handle stress and it is my considered opinion she is psychologically unsuitable to perform full police duty. Though she may have fine assets, they are not sufficient to compensate or reduce her limited and rigid responses to stress. Her psychological limitations are . . . sufficient enough to interfere with ordinary performance of full police duty. I recommend administrative survey.

 Id.

 In a subsequent memorandum dated April 3, 1979, Exh. B, Dr. Symonds directed that Lenihan's firearms be removed. He stated that although he did not consider her dangerous or impulsive, there was a likelihood that if faced with an armed confrontation, she might allow her firearms to be taken away from her. He stated that "her passivity and oppositional traits could make her a severe liability under ordinary stress." Id. Lenihan's firearms were then removed, but no immediate steps were taken to retire her pursuant to Dr. Symonds' earlier recommendation.

 Meanwhile, plaintiff remained in the Pistol License Application Division, performing satisfactorily. However, she continued to bring herself to the attention of administrative and medical personnel. On April 12, 1979, she filed a grievance with the Department's Office of Equal Opportunity, charging that Captain Schauffert had discriminated against her in evaluating her performance, in refusing to assign her to motor patrol, in denying vacation time due her under the Acha v. Beame settlement, and finally, in requesting that she be sent for evaluation by Psychological Services. Exh. 32. After an investigation, the Office of Equal Opportunity determined that Schauffert had not instigated the referral to Psychological Services; it therefore concluded that there was no probable cause to believe discrimination had occurred. Exh. 34. The following month, after Lenihan's orthopedist had recommended that she swim twice weekly in a warm pool for therapy, Lenihan requested that she be given permission to use the Police Academy swimming pool or, in the alternative, that the Department pay for a health club membership for her. This request was referred to the Department's Chief Surgeon, who apparently failed to respond. In August, she filed another grievance challenging her placement on the Department's chronic sick list. Exh. 31. She acknowledged that she had been absent from work, but argued that the chronic sick designation was unfair because her absenteeism might have been avoided had the Department been responsive to her requests for assignment to motor patrol, and for permission to use the Police Academy pool. This appeal was approved, and she was removed from the chronic sick list.

 On February 26, 1981, at the request of the Police Commissioner, an Article II Psychiatric Medical Board was convened for the purposes of determining whether Lenihan could perform full police duty, and making an appropriate recommendation to the Board of Trustees of the Pension Fund. *fn3" The Board consisted of a presiding psychiatrist, Dr. Philip Kaminstein, and two other medical doctors. Lenihan attended this hearing accompanied by her attorney but, consistent with Department policy, the attorney was not permitted to accompany her inside the hearing room. She requested and was granted a month's adjournment in order to obtain unspecified documentation. Lenihan had not had an opportunity to review her own medical file prior to the hearing, as it was and continues to be the policy of the Department to refuse access to officers under review by the Article II Psychiatric Board. The Department does allow attorneys to review medical files, however, and Lenihan ultimately received a copy of Dr. Symonds's report through her attorney.

 The Article II Psychiatric Board met again on March 26, 1981. At that time, Lenihan submitted a letter from her attorney explaining why she believed that she had been discriminated against, and why there was no basis for retiring her on psychological grounds. The Article II Board nonetheless concluded, apparently on the basis of Dr. Symonds' report, that she was a "definite schizoid personality." It deferred final action, and recommended a complete battery of psychological tests and an orthopedic consultation. Exh. O.

 In accordance with the recommendation of the Psychiatric Board, Lenihan was tested and examined on March 3, 1982 and March 9, 1982, by Arthur Knour, Ph.D., a staff psychologist with the Department. After administering a variety of tests including a Rorschach, Dr. Knour made certain contemporaneous case notes. He wrote that "a cursory glance indicates that there are not sufficient indicators of pathology to warrant psych survey," and he added that if Lenihan was a problem police officer, she "should be handled administratively." Exh. 30. Dr. Knour reviewed his file again on September 16, 1982, and wrote "nothing obtained in test material suggesting P.O. cannot function on job from psychiatric perspective." He indicated further that after he had completed a formal write-up, the case could most likely be closed. Id.

 Dr. Knour completed his formal report on November 23, 1982. He noted, first, that both Dr. Symonds and the Article II Board had concluded that Lenihan was a schizoid personality, and that both had raised questions about her intellectual functioning. Dr. Knour indicated that Lenihan was of average intelligence, but that her personality test had revealed a highly constricted individual with a repressive, defensive style. He found that she emphasized concrete rather than abstract concepts, and that she appeared to have difficulty integrating various features in complex situations. Dr. Knour also noted that Lenihan's "somewhat atypical and idiosyncratic" responses led to the impression that she might be schizoid, but that "the test material did not provide any concrete evidence of a thought disorder or of serious distortions of reality." Exh. 19 (emphasis added). He observed that an unequivocal diagnosis was "hard to come by," and he disagreed with Dr. Symonds' diagnosis of a schizoid personality. Tr. at 576. He found, however, that Lenihan "might possibly be classified as a mixed personality disorder -- specifically an inadequate personality with avoidant features." Id. Dr. Knour stated further:

 
The question of Officer Mary Lenihan's ability to function adequately in the Police Department and thus whether she should remain . . . or else survey should be recommended is also a difficult question to respond to unequivocally. Much depends on the nature of the demands placed upon her. The question of her past performance and evaluations might be more indicative of her ability to function as a full duty police ...

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