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January 7, 1992


The opinion of the court was delivered by: MICHAEL B. MUKASEY


 A jury awarded plaintiff, Karen Sorlucco, $ 264,242 in compensatory damages based on its determination that she was suspended and then fired from her job as a probationary New York City police officer as a result of sex discrimination, in violation of 42 U.S.C. § 1983. *fn1" Defendant, the New York City Police Department (the "Department"), has moved pursuant to Fed. R. Civ. P. 50(b) for judgment notwithstanding the verdict or, in the alternative, for a new trial. Plaintiff sued also under Title VII, 42 U.S.C. § 2000e-2(a)(1); *fn2" her claim under that statute is for the court to decide. See Wade v. Orange County Sheriff's Office, 844 F.2d 951, 953 (2d Cir. 1988), and cases cited therein; but see Lytle v. Household Mfg. Co., 491 U.S. 701, 110 S. Ct. 1331, 1335, 108 L. Ed. 2d 504 n. 1 (1990) (declining to express opinion on whether there is a jury trial right on a Title VII claim).

 In connection with defendant's motion for judgment, I must consider the evidence without regard to either the credibility of the witnesses or the weight as opposed to the mere existence of evidence. Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988). As set forth in detail below, when the record is viewed from that perspective it shows that plaintiff failed to present any evidence that an official with final authority to set policy either discriminated against her or acquiesced in a general practice of discrimination of which her suspension and firing were a part. Jett v. Dallas Independent School Dist., U.S. , 109 S. Ct. 2702, 2723, 105 L. Ed. 2d 598 (1989). Nor, with respect to the Title VII claim, did plaintiff show that any agent of defendant discriminated against her based on her sex. Moreover, because the evidence shows conclusively that plaintiff perjured herself with respect to a material incident in the chain of events surrounding her discharge, it would be grossly unjust for the jury verdict to stand. Accordingly, the motion for judgment notwithstanding the verdict is granted and judgment will be entered for defendant on both the § 1983 claim and the Title VII claim; alternatively, the motion for a new trial is granted.

 Because both parties have made detailed arguments relating to issues additional to and apart from those I find dispositive, those arguments also are treated in aid of appellate review, if necessary.


 A. The January 1983 Incident and Sorlucco's Accounts of It

 In January 1983, plaintiff was employed by the Department as a probationary police officer assigned to a precinct in Queens. She lived in Nassau County. Plaintiff testified that on the night of January 12-13, 1983, she was held captive for six hours in her apartment, raped, and sodomized with various objects. At trial, she identified a fellow officer at the precinct as her assailant, and said that during the assault he had taken her revolver, which was lying in view and unsecured in her bedroom, and discharged it once into the mattress. She testified that a short time after the attack she found a birthday card from him under her door, and eventually found her revolver on the front seat of her car.

 Plaintiff testified that on January 14, the day after the incident, she destroyed the sheets, the clothing she had worn, the birthday card and some of the objects used in the assault. According to her testimony, she also went that day to the precinct to pick up her pay check, and was threatened with death by the officer, who told her that even if she did disclose the assault she would never be believed. (Tr. 71-78, 80, 234-35)

 The next day, January 15, plaintiff set out to consult her gynecologist, but was involved in a traffic accident on the way. Her head struck the windshield. She was treated at the emergency room of a local hospital and released at her own request. (Tr. 81-83) On the afternoon of January 17, she saw her gynecologist and told him that she had been raped. He said he would have to report the assault and advised her to report it herself. (Tr. 85-86)

 On January 17, following the visit to the gynecologist, she went to the Nassau County Police Department. She testified that her request to speak to a female officer was refused and that the male officer who questioned her was vulgar and abusive. (Tr. 88-89, 184) In a statement later reduced to writing and signed, she told that officer that she had been raped on the night of January 7, rather than January 13, by a male jogger she had met at a laundromat and invited to her home. According to her statement, the man had seized her gun from the bedroom, unloaded all but one bullet, and fired the remaining bullet into her mattress. The signed statement included an acknowledgment that Sorlucco had "been told that any false statements I may make are punishable as a Class A Misdemeanor pursuant to Section 210.45 of the Penal Law." (PX 1)

 The Nassau County police notified the Department, and the duty officer for Queens that night, Captain John Hunt, went to the Nassau County police precinct and reviewed plaintiff's statement. He then spoke with plaintiff at her apartment. His testimony with respect to the statement was as follows:

 "Q. . . . You found those details shocking. Is that right?

 A. Yes, I did.

 Q. And what you found so shocking was the fact that the assailant, according to the statement, had used objects on Ms. Sorlucco, is that correct?

 A. That's right, according to the statement.

 Q. You thought the assault, in your words, was degrading, didn't you?

 A. Yes, I did.

 Q. You thought the assault was so degrading you found it improbable for that reason alone to believe that it happened, didn't you?

 A. I did have difficulty believing it, yes.

 Q. You found it hard to believe that one person would do that to another, didn't you?

 A. That's right.

 Q. And that's why you found the whole thing a little improbable, is that right?

 A. I didn't say it was improbable. I said I thought it was a horrible incident, and -- and I couldn't believe anybody perpetrating an assault like that on an individual."

 (Tr. 603-04) From this testimony plaintiff argued at trial, and argues now, that from the outset Hunt disbelieved her account.

 Based on Sorlucco's distraught emotional condition and her failure to report the discharge of her weapon ten days before -- as her account then was -- Hunt placed Sorlucco on modified assignment, a duty status within the Department calling for non-patrol assignments and surrender of the officer's weapon. (Tr. 600) He reported the matter to the Department's Internal Affairs Division and recommended that charges and specifications be drawn against plaintiff for failing to safeguard her weapon and failing to report the incident promptly. (Tr. 601)

 On January 18, the day after her initial signed statement, she gave another signed statement to the Nassau County police, this time to a female officer. The January 18 statement reiterated the substance of the January 17 statement, and added that she had found a birthday card from her assailant under her door and had destroyed it. The last page of the signed statement included the following:

 "I am giving this statement to a detective who is writing it down for me. I have been advised that any false statement given herein is punishable as a Class A misdemeanor pursuant to Section 210.45 of the Penal Law. The above is the truth to the best of my knowledge."

 (PX 2) The following day, January 19, she met with Dr. Eloise Archibald, a Department staff psychologist, and repeated her earlier accounts of the assault. (Tr. 329) Archibald suggested that Sorlucco consult an outside therapist, but plaintiff said she wished to consult Archibald who, after conferring with a supervisor within the Psychological Services Division, agreed. (Tr. 333)

 On January 21, after speaking with friends and family, plaintiff again went to the Nassau County police and gave yet another statement. In this statement she said she had been assaulted not by an unknown assailant she had met at a laundromat but by a fellow officer, John Mielko, and that the assault had occurred not on January 7 but on January 13-14. The Nassau County police then notified Sergeant Carmine LaCava, of the Department's Field Internal Affairs Unit, about the allegation against Mielko. LaCava testified that he did not interview Mielko at that time because Nassau County was investigating the incident. "The decision was made to wait until Nassau County completed their criminal investigation, and then we would do our investigation when they completed theirs." (Tr. 524-25)

 Records introduced at trial showed that Mielko told Nassau County police he had gone to plaintiff's apartment on the night of January 13 at her invitation, and that they had had sexual relations, but that there had been no rape and no sodomy. Those records showed that on January 26, Mielko voluntarily took a polygraph examination administered by the Nassau County police, and passed. (DX T) Sorlucco testified that on February 1 she too took a polygraph test. Although a copy of Mielko's test was in the file that Nassau County turned over to the Department, a copy of Sorlucco's was not. However, Sorlucco testified that the Nassau County police examiner asked her five or six questions unrelated to the incident, "and then all of a sudden he started jumping up and screaming to me that I was a liar, that I failed, I didn't deserve to be a cop. All sorts of things, like a maniac." (Tr. 109) She testified that the next day she was tested -- twice -- by a privately retained polygraph expert and passed. (Tr. 109-110)

 There was introduced into evidence a statement apparently signed by Sorlucco on February 1, the day of the Nassau County police polygraph test, withdrawing all charges against Mielko; the statement was witnessed by Lieutenant Eugene Dolan of the Nassau County Police Department. (DX U) Dr. Archibald's records showed an entry for February 1 that included the following:

 Telephone contact w/ith Probationary Police Officer [Sorlucco] who was upset & crying because polygraph tests, taken earlier that day, suggested she was lying & her accused assailant was telling the truth. Because of results of polygraph she dropped charges & Nassau Cty has closed case.

 (DX Y) The psychologist's testimony was to the same effect:

 . . . I believe it was February 1st, 1983, when we had a telephone contact; and at that time, she was very upset because of a polygraph test that she had taken that day. In any case, at one point in the conversation, she said that because of the results of the polygraph, she had dropped her charges, and Nassau County had closed the case.

 (Tr. 337) Dr. Archibald testified that it was her procedure to take notes contemporaneously with conversations so as to record the content of those conversations. (Tr. 325) The notes in question were received in evidence without objection as business records (Tr. 336-37), and their contemporaneous recordation was never challenged at trial. Plaintiff's current suggestion that the jury might have found the notes were not contemporaneously recorded or were otherwise inaccurate is not supported by so much as a line of testimony and conflicts directly with the testimony and the contemporaneous record of the psychologist.

 Plaintiff's testimony on cross-examination about the statement withdrawing the charges warrants extensive quotation:

 Q. I'd like to show you what's been marked as defendant's U for identification, and ask you to read that to yourself, please.

 A. (Pause)

 Q. Have you finished?

 A. Yes, sir.

 Q. That's your signature at the ...

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