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