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CARRILLO v. WARD

June 4, 1991

DONNA CARRILLO, PLAINTIFF,
v.
BENJAMIN WARD, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, AND EDWARD ROGE AND CHARLES CAMPISI, CAPTAINS, NEW YORK CITY POLICE DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Whitman Knapp, District Judge.

MEMORANDUM AND ORDER

This action is brought pursuant to 42 U.S.C. § 1983. Plaintiff is a female police officer who, at the time of the events underlying this suit, was employed by the New York City Police Department ("the Department"), and was assigned to work in a division known as the Manhattan Traffic Area ("Manhattan Traffic") commencing in June 1983. Defendant Captain Roge ("Roge") was the commanding officer of Manhattan Traffic from some time prior to 1983 through September 1986; defendant Captain Campisi ("Campisi") served as a sergeant and lieutenant under Roge, and succeeded him as commanding officer in October 1986. Both Roge and Campisi are sued in their individual capacities. Defendant Ward was the Police Commissioner for the years 1984 through 1990, and is sued only in his official capacity.*fn1 We shall hereafter refer to the allegations against Ward as though they were against the Department.

The substance of the complaint is the allegation that defendants Roge and Campisi discriminated against plaintiff on the basis of gender in the terms and conditions of her employment in violation of rights secured by the Fourteenth Amendment, and that their individual actions violated rights protected by the First, Fourth, Fifth and Fourteenth Amendments. In addition the complaint alleges certain pendant state law claims, namely that defendants' actions violated the provisions of New York State Executive Law, Section 297 et seq. ("§ 297"), and a claim of defamation.

Pursuant to Fed.R.Civ.P. 56 defendants move for summary judgment on all claims. With respect to the state law claims, defendants contend that the § 297 claim is barred for failure to file a notice of claim, and that the defamation claim is time-barred by the applicable state statute of limitations. Since plaintiff conceded at oral argument that these state claims are barred for these reasons, we limit the remainder of our discussion to her federal claims. For the reasons that follow defendants' motion for summary judgment is granted in part and denied in part.

BACKGROUND

In June 1983 plaintiff was assigned to work at Manhattan Traffic, a previously all male division of the Department. The defendant Roge was then the Commanding Officer of that Division. Plaintiff alleges that immediately after her assignment defendant Roge "began a campaign of harassment" against her because of her gender. Compl. ¶ 21. Specifically plaintiff asserts that Roge removed her from choice assignments in violation of seniority rules, punished her for tardiness in a manner which was more severe than the treatment given male officers, and on three occasions ordered her to work overtime when such assignments were usually filled by volunteers. Plaintiff offers the testimony of five other female officers to support these claims of disparate treatment motivated by gender-animus. Although no such officer testifies to direct knowledge of derogatory statements made by Roge against women, their testimony does suggest that Roge would not permit women to work together, favored men in duty assignments, and penalized women for behavior for which men were not similarly disciplined. See e.g., Jacobs at 13, 16; Carter at 14; Lopez at 10.

The complaint also alleges that defendant Roge unjustifiably targeted plaintiff for surveillance by internal police investigators for alleged drug use and caused her to have her urine screened for the presence of drugs. For purposes of this claim, the relevant facts are as follows.

Sometime in October 1985, Lieutenant Moakley ("Moakley") of the Field Investigation Affairs Unit began a "self-generated" investigation of plaintiff for suspected drug use. Moakley testified that he initiated this investigation after being informed by Lieutenant Pollack ("Pollack"), an Integrity Control Officer, that he and other supervisors believed plaintiff was using drugs. Moakley, at 20, 21. Pollack testified that he did not, personally, believe plaintiff was using drugs. Pollack, at 63. On November 19 Moakley received a telephone call from Roge in which Roge conveyed his belief that plaintiff was using drugs. Moakley, at 21. Pursuant to this conversation Moakley closed the self-generated investigation and opened an official Internal Affairs Division investigation of plaintiff. Id. at 22.

Department regulations in effect at the time of these events specify that "[i]n all cases in which the belief [of drug use by an officer] is based upon observations of the officer, two (2) supervisors are required to observe the suspected drug abuser". Pl. Exh. I. Roge testified that he had no personal basis to believe plaintiff was using drugs, but that he acted on the information provided by Pollack. Roge at 66, 120. Pollack testified that it was Roge who initiated to him the possibility of plaintiff's being a drug-user. Pollack, at 34, 38.*fn2

Plaintiff was surveilled by investigators over the course of the next sixteen months. These observations occurred on numerous occasions, each lasting from five minutes to over five hours. At no time did the investigators uncover evidence of drug use, and on March 13, 1986 the investigation was terminated and the allegations of drug use classified by Moakley as "unsubstantiated". In July 1986 Moakley opened another investigation to monitor plaintiff. Moakley testified that the determination to initiate this third investigation was his alone, as it was his standard practice in all drug allegation cases to order follow-up investigations in order to take account of the possibility that the suspect had been aware of being watched in the previous investigation. Moakley, at 50, 59-60; Def. 3(g), at ¶¶ 21-23. This investigation also yielded no proof of drug use, and it was closed in February 1987.

The complaint alleges that the daily surveillance caused by these investigations caused plaintiff to become increasingly anxious and despondent about her job as a police officer, precipitating the onset of psychological symptoms of depression and the development of an ulcer, colitis and gastroenteritis. Compl. ¶¶ 27, 28. Sometime prior to September 1986 plaintiff sought medical treatment for these ailments and was placed on prescription medication.

On September 17, 1986 plaintiff informed the desk sergeant, Sgt. Flynn ("Flynn"), that she was ill and requested permission to stay in the station house rather than report to her field post issuing traffic summonses, or to take a sick day. After consulting with Roge, Flynn informed plaintiff that she must either take her field post or report sick. Plaintiff went on patrol. Thereafter Roge phoned Moakley and conveyed the suspicion that plaintiff may be under the influence of drugs. Moakley, at 69; Roge, at 148, 152. Moakley directed that plaintiff should be called in from the field and proceeded to interview her. In response to the inquiry of plaintiff's counsel as to what was the basis of Roge's suspicion of plaintiff's drug use on this occasion, Roge testified that Flynn had informed him that he suspected that plaintiff "may be under the influence or using drugs". Roge, at 148. Flynn's deposition testimony, however, denies ever having conveyed to Roge a suspicion that plaintiff used drugs. Rather, Flynn testified that it was Roge who informed him "that Lt. Moakley would be in to escort Officer Carrillo [plaintiff] for an assessment test, possible use of controlled substance". Flynn, at 12, 19.

After meeting with Moakley and after informing him that she was on prescription medication for stomach ailments, plaintiff agreed to accompany Moakley to the Health Services Division ("Health Services") for a medical evaluation. Plaintiff was then examined by Dr. Fried. Despite the fact that plaintiff informed Dr. Fried that she was on prescription medicine and gave him the phone number of her personal physician, he recommended a drug screening test of plaintiff's urine. Dr. Thomas, the Department's Chief Surgeon, approved this recommendation, and plaintiff was ordered to render a urine specimen. The drug test of plaintiff's urine was negative.

In 1986 there were Department regulations which governed the administration of urine-analysis drug tests (hereinafter "Dole tests"). These regulations established that there must be "a reasonable basis to believe that an individual member of the service is wrongfully using drugs" prior to administering a Dole test. More specifically, Interim Order No. 13 provides that an investigating supervisor must confer with an attorney assigned to the Department Advocate's office, and in most circumstances with his immediate supervisor, prior to ordering a Dole test. Pl.Exh. I. Interim Order No. 13-1, promulgated in 1985, amends Interim Order No. 13 and permits that a medical doctor employed by the department may order a Dole test without securing prior approval of the Department Advocate, after conferring with the Supervising Chief Surgeon. Id. Plaintiff asserts that in the circumstances of this case, namely her being escorted to Health ...


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